Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T4204 and T4223

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

Shop Distributive and Allied Employees' Association -
Tasmanian Branch

(T Nos 4204 and 4223 of 1993)

and

Fosseys Australia Pty Ltd T/A Coles Variety

 

COMMISSIONER P A IMLACH

24 March 1993

Termination of employment - unfair dismissal

REASONS FOR DECISION

These two applications for dispute hearings were made under Section 29 of the Act by the Shop Distributive and Allied Employees' Association - Tasmanian Branch (the Union): they related to the same subject and were joined.

The dispute concerned an employee of Coles Fossey's store in Elizabeth Street, Hobart (the Company), a Mrs Margaret Waight, who had been made redundant.

The Union claimed that Mrs Waight had been victimised because of her role as a union representative in a previous dispute with the Company (T.3841) when complaints had been made against a store supervisor by a number of employees. The Union sought reinstatement on the victimisation ground, but alternatively, sought a redundancy payment of four weeks' pay for each year of service if the reinstatement claim failed.

Mrs Waight had been employed continuously by the Company, in a variety of positions, from 12 November 1981 until 31 December 1992 (just over 11 years).

It transpired in evidence from Mrs Waight, however, that for about six of those eleven years she was employed as a casual in that whilst she was employed every week, or nearly every week, she did not know for sure each week how many days she would be required to work the next week. Mrs Waight commenced as a full-time employee in 1987.

In fact, Mrs Waight had been employed for an earlier, separate period by the Company, but I do not accept that earlier period as a consideration of this case.

There was no question as to Mrs Waight's work, efficiency or integrity; the Company simply claimed that she had been made redundant because the delicatessen section of the store, where she had worked lately, had experience a sustained and significant drop in sales and had been closed down from 31 December 1992. As a matter of Company policy the employee working in the delicatessen section, Mrs Waight, had been put off work.

On 31 December 1992 without notice, Mrs Waight was called to a meeting with the Store Manager, the Personnel Officer, a supervisor and a union representative at which she was told the delicatessen section was being closed down and, as she was the employee in that section, she was made redundant as from that moment. Mrs Waight was handed a cheque and the payment items in it were explained (they included amongst other items, four weeks pay in lieu of notice plus eight weeks pay as a redundancy payment). She was given a written reference, requested to collect her belongings, return her locker key and leave the store immediately.

The sum total of the Company's final appreciation for Mrs Waight's eleven years uncontested good service apart from the payment of entitlements due was the sentence, "Thank you for your work and I wish you all the best."

The Union made much of its contention that Mrs Waight had been a victim of retribution by the local store management following the dispute case earlier referred to. The Union claimed that Mrs Waight should have been deployed into another area because of her long service and wide experience with the range of duties required of workers in the store, but she had not been because the local management had used the redundancy excuse to get rid of her. The Union did not paint some of the local store management in a very good light.

The Tasmanian Confederation of Industries (the Confederation) represented the Company and submitted that the case was a genuine redundancy and the method of termination and the amount of redundancy payment had been quite proper and adequate.

As to the redundancy the Confederation brought the National Catering Manager of the Company as a witness. He confirmed that, whilst the delicatessen section had been losing sales and not breaking even for some time, no advice was given to the employees nor a decision taken to close the section until the eleventh hour, 30 December 1992 for the decision and 31 December 1992 for the advice. He also confirmed that the decision to close had been his alone.

Later, after the Catering Manager had been relieved as a witness, the Union strongly submitted that the Company had decided to close the section well prior to the end of December because the equipment needed for replacement had been brought into the store, or was at hand, well before the end of December.

I was satisfied with the evidence of the National Catering Officer in that I accept for all intents and purposes, the decision to close the delicatessen section was not made till very late in December even though the intentions and reasons for the closure may have been clear well before that date. I am also well satisfied that the decision to close was made by the Catering Manager alone and that the local management was not directly involved. This means that I do not accept the Union's argument that Mrs Waight had been the victim of retribution. I accept the Confederation's submissions in that regard also.

The Confederation made thorough submissions, supported by precedents, that, so long as nothing seriously untoward has occurred and the Award has not been contravened, an employer, as in this case, has the unfettered discretion to terminate or retain an employee in his or her employment.1 Further, this included the concept of redundancy as expressed in a number of areas by the words, "The employer no longer wishes the job the employee has been doing done by anyone else." - or very similar words.

The Confederation submitted that this was a clear case where the Commission ought to recognise the prerogative of an employer to manage the workplace.

In the circumstances of this case I accept the Confederation's submissions that the Commission should not countermand the Company's decision to make Mrs Waight's job redundant.

It follows that I decline to order Mrs Waight's reinstatement on the grounds that hers was a genuine case of redundancy.

The Union also submitted that, even though Mrs Waight's job had been made redundant, because of her seniority, service and status (full-time), she should have been redeployed and not made redundant. The key factor in response to this was the Catering Officer's evidence that the Company's policy was that those employed in the jobs made redundant were to be the ones made redundant. The dictum (put to the witness from the bench) "last on first off" had not been adopted by the Company.

Again, I accept the Confederation's submissions that it was the Company's prerogative to decide, rightly or wrongly, which employee would be made redundant in this case.

There was some disagreement as to the policy of the Company on redeployment in the case of redundancy. The Union claimed that, in New South Wales, the Company actively pursued redeployment. The Company replied that this was only the case where a whole store was closed down and then efforts would be made to relocate those thrown out of work as a result; no such situation applied in this case.

Debate over just what was the Company's policy as to redeployment continued but, even if the Union were correct, it would not change the validity of the reasons I have already accepted; namely that ultimately the Company has the right to decide which job will be made redundant and which employee will be made redundant as a result. This is a separate factor to the amount of redundancy pay which may be assessed for the individual made redundant.

Finally, the Confederation considered that the redundancy payments made to Mrs Waight were adequate on the grounds that the Company was a large, nationwide enterprise for which a nationwide standard of redundancy was appropriate. This ensured fair treatment for all employees of the Company in all parts of the country. The Confederation further submitted that any so-called Tasmanian state redundancy standard should not be applied as all other States mirrored the federal system's prescriptions.

On the grounds that this dispute has occurred in the industrial jurisdiction of this State, the Award is a State award (the Retail Trades Award) and, as a State Commissioner, I am primarily responsible to apply the provisions of the State Industrial Relations Act 1984, I have no hesitation in confirming that I am bound to follow the guidelines set out in the State Termination Change and Redundancy decision of 19852 (the TCR decision) which ironically relied on the Retail Trades Award as a vehicle.

An employer ought to give adequate notice to an employee whose position is to be made redundant. In this case no notice at all was given, but an amount of four weeks pay was provided in lieu of notice: the question is, was that amount of payment adequate.

Whether or not the Union was right in its allegation that the Company decision to make Mrs Waight redundant had been made well prior to 30 December 1992, the deliberate "guillotine" nature of Mrs Waight's separation from her work precluded any possibility of positive discussions as to redeployment or abiding by the other requirements of the TCR decision. Put another way, the Company deliberately ignored that part of the TCR decision going to such things as prior notice, consultations, redeployment and training and time off for job searching.

The circumstances of this case, viewed in the light of the TCR decision, indicate that the Company failed woefully in its obligations to give the employee concerned adequate notice, seek possible avenues of redeployment or in anyway cushion the blow of termination. The reasons for the Company's policy in these matters are plausible, but they seem to me to be very one-sided. The Company's executives ought to have exercised their minds towards providing some positive and practical way of looking after a relatively long-serving employee whose position had been made redundant.

This requirement is even more applicable to the Company for the very reason that it is so large and is a nationwide employer of so many workers: no doubt the Company frequently finds itself having to make positions redundant on the one hand, but also having to fill constant vacancies on the other.

Whilst Mrs Waight was an employee for 11 years, for the period she worked as a casual she is not entitled to a redundancy payment because, of its very nature, casual employment implies a separate engagement and re-employment for each day or series of days of employment. Conversely, redundancy relates to continuous full-time or part-time employment.

For the purposes of this application I determine that Mrs Waight's period of full-time employment, for which a redundancy payment is due, was in excess of five completed years.

For all the above-mentioned reasons, therefore, I find that the amount of money paid to Mrs Waight for redundancy and in lieu of notice of such was not adequate. I will order that the Company pay to Mrs Waight, as a redundancy payment, an amount equivalent to 3 weeks pay for each completed year of service plus pro-rata for part thereof at the amount of wages she would have received had she been at work for that period (ie 15+ weeks at her ordinary time rate of pay) less the amount already paid for redundancy and in lieu of notice, that is 12 weeks' pay.

The amount of the redundancy payment I have determined in this case is based upon the failure of the Company to give adequate, prior notice; to provide counselling, to consider and investigate redeployment and retraining, to assist with finding alternative employment or grant time off for job searching. All these requirements were clearly specified in the State TCR decision.

An order is attached.

 

P A Imlach
COMMISSIONER

Appearances:
P Griffin for the Shop, Distributive and Allied Employees' Association - Tasmanian Branch.
T Edwards with T Heald and P Carpay for Fosseys Australia Pty Ltd T/A Coles Variety.

Date and place of hearing:
1993.
Hobart:
January 29;
February 18;
March 17.

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

ORDER

In accordance with the requirements of Section 31 of the Act, and further to my decision in matters T.4204 and T.4223 of 1993, being applications made by the Shop Distributive and Allied Employees' Association - Tasmanian Branch pursuant to Section 29(1) of the Act for a hearing to settle an industrial dispute with Fosseys Australia Pty Ltd T/A Coles Variety re: unfair dismissal of employee and redundancy payment, I order as follows:

That Fosseys Australia Pty Ltd T/A Coles Variety pay to its former employee, Mrs Margaret Waight a redundancy payment equivalent to three weeks pay for each completed year of service as a full-time employee plus pro-rate for part thereof at the amount of wages she would have received had she been at work for that period LESS the amount already paid for redundancy and in lieu of notice.

 

P A Imlach
COMMISSIONER

24 March 1993

1 ALLR 47-255
2 T.125 of 1985