IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

On 11 July 1986 I issued a preliminary finding in this matter deciding the status of an employee the subject of these proceedings. It was my decision that the employee (Sister Jaffray) was in fact a part time employee at the time of her dismissal.

Having so determined, I was advised the parties wished to proceed to test the propriety of the dismissal.

At proceedings on 21 July 1986 a further threshold matter was argued. It was the view of the Hospital Employees' Federation of Australia, Tasmania No. 2 Branch (H.E.F. No. 2) that as "there was nothing amiss with Sister Jaffray's work", the only ground left for debate was the breakdown of the employer/employee relationship, which could not be considered by the Commission.

Mr Simmonds for H.E.F. No. 2 maintained that the general statement of intent in the decision in T.125 of 1985; the Job Protection Termination and Change decision, of this Commission precluded consideration of that issue. He submitted that in the absence of any reference to the breakdown of the employer/employee relationship by the Full Bench in its general statement of intent, it was not open to individual members of the Commission to take that factor into account.

At page 93 of the transcript I made the following statement:

"Commissioner King

Having heard the parties on the preliminary matter, it would be my view that the Commission should, in the circumstances, continue with this case and hear the argument on the basis put forward by Mr Fitzgerald. If it becomes necessary, I would be quite prepared to give reasons for that second preliminary decision."

I have not been asked and do not consider it necessary to reduce my reasons to writing. However, it goes without saying that I believe consideration of the relationship between employer and employee to be a very important factor in any reinstatement or re-employment application. A breakdown of such relationship could be a factor, or the only factor in deciding whether the employer/employee relationship can reasonably be reinstated.

Following the above statement, Mr Fitzgerald representing the Mt. St. Vincent Nursing Home (the Home) indicated his acceptance of the onus in proving that the employer/employee relationship had irretrievably broken down.

Mr Fitzgerald called a Mr Andrew Prenter, the Secretary/Manager of the Home, to give evidence going to the alleged employer/employee breakdown. Mr Prenter's evidence went primarily to a discussion between he and Sister Jaffray (the Employee) commencing at 11.00 pm on a Thursday night in June 1986 and lasting until 1.15 am the next morning. Further evidence was elicited from Mr Prenter on conclusions he drew from his investigation of a number of matters allegedly raised by the Employee during that discussion.

His general conclusions were that the Employee had made serious allegations about senior members of the staff and management of the Home which, on investigation, were not substantiated. Most of the allegations were interpreted by Mr Prenter as no more than "malicious gossip".

On checking with previous employers he discovered that the Employee did not have a good record. In one instance she had been suspended and ultimately dismissed and in another given the option of leaving or being dismissed. In the latter case an ultimatum was given on the basis of he disruptive influence amongst the staff and her general criticism of her employer.

Mr Prenter also advised that, following a full brief by him to the Board of the Home, his instructions were that the Employee not be re-employed.

Mr Simmonds summarised the position and his assessment of the matter now for determination by the Commission as follows:

"Mr Simmonds

..., but what I would say is that at the date of termination, which was some time before 19 June, the employment relationship had not irretrievably broken down. It was in existence and it was terminated (so we are told) as a casual relationship. Not for any of the reasons that had now been adduced; they were adduced, and I will remind you that they were adduced specifically as a result of the visit by the union to the premises on 19 June, following which the Secretary/Manager of the hospital and the Chief Executive of the hospital had a lengthy discussion with Sister Jaffray. And to some extent it is going to be the differing views of that discussion, of what was said in that discussion, that are going to have some bearing on this matter."

Underlinging mine   (transcript page 210)

Mr Simmonds called the Employee and the North West Organisor for the H.E.F. No. 2 (Mr M Hall) to give evidence to support his views that the dismissal was harsh, unjust and unreasonable and that the employee/employer relationship had not broken down.

He maintained that the Employee had been given notice of dismissal as a "casual" employee some time prior to 19 June 1986, the date the matter was raised by Mr Hall with the Home. Later that night the discussion, earlier referred to, took place between the Secretary/Manager of the Home and the Employee.

Mr Simmonds submitted that no evidence had been produced by the Home to show there had been any problems with the Employee prior to 19 June. Even during the discussion no indication was given to the Employee that her services were in any way unsatisfactory. In fact she had been offered casual work on an ongoing basis by the Secretary/Manager. She had simply had what the Home regarded as her casual employment terminated.

Mr Simmonds asserted that the total grounds for the employer's claim that the employer/employee relationship had broken down, came from the discussion on 19 June and subsequent investigations after the Employee had ceased her employment at the Home. He submitted that many of those matters, including checks done with previous employers, could have no bearing on the Commission's decision in this case.

A summary of events and some of the more important facts which have had an influence on my final decision in this matter is:

• the Employee was given notice of termination of her employment some time in early June 1986;

• on 19 June 1986 (this date was unconfirmed by the employer) Mr Hall an Oganiser for the H.E.F. No. 2 visited the Home to follow up a complaint from the Employee concerning her dismissal;

• at 11.00 pm that night the Secretary/Manager of the Home visited the Employee at work to discuss matters raised with him by Mr Hall;

• the ensuing discussion lasted 2¼ hours and canvassed a number of matters;

• alleged statements made by the Employee about members of the staff and the running of the Home were later investigated by the Secretary/Manager and his findings relied on to support the contention that the employer/employee relationship had broken down;

• subsequent enquiries of previous employers had established, in the eyes of the Home, an unsatisfactory previous employment record; a situation which was also relied on to support the view of the employer;

• no evidence was produced by the Home to show that the Employee had been anything other than a satisfactory employee during her period of employment;

• it was conceded by the Employee that one or two matters were raised by the Matron when she advised of the decision to terminate the Employee's services;

• the Secretary/Manager had no personal contact with the Employee prior to 19 June;

• no evidence was called from the Matron or other employees of the Home who had personal contact with the Employee during her employment;

• contact with the Matron was infrequent; prior to the Matron advising the Employee she was being terminated personal contact had occurred late in March;

• contact with other Registered Nurses was generally only at the change over of shifts;

The evidence in this matter showed that the Employee, for the majority of her working time, was in charge of a night shift and that she was the only State Registered Nurse on duty. However some day work was done over the employment period.

It was not submitted by the Home that the employer/employee relationship had deteriorated or broken down during the employment period.

The determination of this matter therefore rests on the weight I attach to the evidence given, going to the discussion between the Employee and the Secretary/Manager on 19 June and subsequent events.

The difficulty I have in this respect is that the evidence of the Secretary/Manager and the Employee was predictably not consistent. Without evidence from other employees, particularly the Matron, I find it very difficult to form a conclusive view on some of the more important matters raised.

In relation to the earlier employment history of the Employee, it seems to me that, at best, it could only support the Home's position if it had first proved its case going to the employer/employee relationship. In other words, it would tend to confirm a pattern and an ongoing problem.

I accept the submission of Mr Fitzgerald; that in an argument going to the breakdown of the employer/employee relationship events occurring after the termination can properly be considered. However I would expect that any such events would generally support or confirm a position established during the actual employment period. Such is not the case in this instance.

It is my conclusion that the employer/employee relationship has not irretrievably broken down in this case. However, I can readily accept Mr Simmonds' summary of the current position found at page 212 of the transcript;

"Mr Simmonds

One can come to the conclusion I think quite fairly, that things are a bit difficult, and perhaps the relationship is now not all it should be."

However, from the evidence and submissions in this case there is little doubt in my mind that the "difficult" situation has developed since the discussion on 19 June 1986. That discussion taking place some time after the Employee had been given notice of her termination and following a complaint by her to her union. Such circumstances would almost, as a matter of course, produce a "difficult" environment.

In all the circumstances, it is my decision that Sister Jaffray be re-employed in her former position. Having so determined, I draw attention to the comments of Mr Simmonds above and make the observation that the continuation of the employment contract into the future will depend very much on the efforts of both parties to make it work.

If there is a tendency by the Employee, to on occasions, speak without sufficient thought, I can only hope that the proceedings leading up to this decision contain a clear message that any further sustained complaints will not only put employment at the Home at risk, but also her employment prospects elsewhere.

Significant factors in reaching the above conclusion are:

• the lack of evidence going to a poor employer/employee relationship up to 19 June 1986, and no evidence or submissions suggesting the employee is not a competent registered nurse; and

• the Employee has very little if any ongoing personal contact with the Matron or Secretary/Manager, a situation which should allow this matter to settle down and hopefully be forgotten.

I have deliberately not detailed the various matters which were the contested grounds in this case. I have not done so because the canvassing of them will do nothing to assist in the settling of this dispute. However, I can assure the parties each matter was given serious and appropriate consideration.

J G King
COMMISSIONER