T4333 - 26 November
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Miss Harriet Gunn and Fahan School
Industrial dispute - alleged harassment and verbal abuse by supervisors and senior teaching staff - alleged threats as to termination of employment - alleged failure by superiors to establish guide-lines and work duties REASONS FOR FURTHER DECISION On 12 November 1993 I issued Reasons for Decision in relation to this particular dispute and made a finding that the dismissal of Miss Gunn by Fahan School on 20 May 1993, was in all of the circumstances, both harsh and unjust. My decision was not to order reinstatement but in the alternative that an amount which is both adequate and fair should be paid by Fahan School to Miss Gunn. Such a payment was to be in settlement of this particular industrial dispute. The parties were then given the opportunity to negotiate a settlement on this basis. I had made it clear in my decision that if no agreement could be reached then further submissions could be put to the Commission to enable the Commission to settle the dispute by arbitration. At a hearing on 24 November 1993, the parties indicated that no final settlement had been achieved, however it was mutually agreed that an off- record conference involving a representative of each side and the Commission as presently constituted may assist the process of dispute resolution. In the result the conciliatory process failed to produce a favourable result and the parties were then invited to make final submissions in relation to what might be a fair basis of dispute settlement. Both parties provided the Commission with their respective views as to what should constitute a proper basis for calculating a lump sum amount which would be paid to Miss Gunn by her former employer, Fahan School, in settlement of this particular industrial dispute. The respective positions advanced were that Fahan School believed a payment based upon the equivalent of one school term (approximately 10 weeks) at the employee's ordinary rate of pay would be a fair basis of settlement. However counsel for Miss Gunn sought a payment which would consist of payment for all time since the date of dismissal (20 May 1993) to the end of 1993, together with one further year's salary, and some recompense for costs incurred by Miss Gunn in this matter. Both parties advanced argument in respect of their proposal and some limited reference was made to decided cases in other jurisdictions. The Commission's jurisdiction, functions and powers as they relate to the prevention and settlement of industrial disputes are derived from a number of sections of the Industrial Relations Act, 1984. Section 19 of the Act provides, inter alia:- "19(1) Subject to this Act, the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter." "Industrial matter" is extensively defined in Section 3 and includes any matter pertaining to the relations of employers and employees, as well as any matter relating to rates of remuneration and the conditions of employment. This particular dispute involved a number of issues from the beginning of proceedings and the matters in dispute escalated from 20 May 1993, when Miss Gunn was summarily dismissed. From that point forward the question of reinstatement or a financial settlement in lieu thereof formed part of the argument put forward by one side or another in relation to this part of the dispute. Section 19(2) provides that, inter alia:- "19(2) For the purposes of subsection (1), the Commission may - (a) .......... (b) .......... (c) conduct hearings and conferences for settling industrial disputes;" The Act also provides in a more general sense that the Commission is to act according to equity and good conscience etc. More specifically Section 20 (1) provides:- "20(1) In the exercise of its jurisdiction under this Act, the Commission - (a) shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms; (b) shall do such things as appear to it to be right and proper for effecting conciliation between parties, for preventing and settling industrial disputes, and for settling claims by agreement between parties; (c) is not bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and (d) shall have regard to the public interest." The Commission's dispute settling function is also dealt with in Section 29 of the Act, which provides as follows:- "29(1) An organisation, employer or employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute that has arisen or the applicant considers is likely to arise. 29(2) Where an application under subsection (1) has been made to the President, he shall, unless he believes that it would not assist the settlement or prevention of the relevant industrial dispute, convene a hearing before a Commissioner. Section 3 provides that: "industrial dispute" means a dispute relating to an industrial matter, and includes a dispute relating to - (a) the engagement, dismissal, or reinstatement of any particular employee or class of employees; (b) the entering into, execution, or termination of any contract for services in circumstances that affect, or may affect, an employee in, or in relation to, his work; or (c) any question relating to the demarcation of functions of employees or classes of employees - but does not include a dispute relating to any matter arising from a registered enterprise agreement if that agreement includes a grievance procedure which provides for private arbitration;" There is also provision in Section 30 for the President to summon any person to a conference for the purpose of attempting to prevent or settle an industrial dispute. Finally Section 31(1) provides that:- "31(1) Subject to this section, where the Commissioner presiding at a hearing under section 29 or a conference under section 30 is of the opinion, after affording the parties at the hearing or conference a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing or conference, that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing or conference was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken." and there are some limitations imposed by the Act in relation to the content of orders which may be made. In considering the views expressed by the parties in this matter, together with the requirements of the Act as it relates to the settlement of industrial disputes, I have decided that the following elements are relevant to the calculation of an amount of money which should be paid to Miss Gunn in prevailing circumstances:- 1. The date from which the calculation should commence is 20 May 1993, because this was the date of her dismissal. It is also the date acknowledged by the school as being relevant when an adjournment was being sought by Fahan School which "would not disadvantage Miss Gunn if a decision went in her favour". 2. Any calculation should use as a basis Miss Gunn's rate of ordinary pay by reference to the provisions of Clause 8 of the Independent Schools (Teachers) Award and the level she had already reached or would reach in subsequent years. 3. Payment should also be calculated at least to the end of year 1993, on the basis that the obtaining of alternative employment at any other school prior to that time is considered an impossibility given practical considerations.
4. Given that Miss Gunn is now unemployed and resides in the State of Tasmania which has an exceedingly high percentage of persons who are seeking employment but who cannot be placed, I believe some allowance should properly be made for that fact and be included in any estimate of the actual time it will require for her to secure a comparable position to that which she previously occupied. Such an estimate is difficult to make. Her fortunes can now probably be linked to the economic recession which currently prevails, and no published expert opinion has yet confidently predicted when the demand for labour is likely to show real improvement. Whilst some other economic indicators have shown tentative signs of a recovery, the anecdotal evidence is that demand for labour is likely to be one of the last elements to improve. In this regard there is no reason to suspect that the teaching profession is likely to be any better placed than that of other professions.
I turn now to that which I consider not to be relevant to the calculation. There was argument put forward that I should have some regard for the fact that Miss Gunn has incurred a considerable cost as a result of this case, and that the extent of these costs has been exacerbated by the number of adjournments which have occurred, most of which were at the request of the employer. The question of awarding costs to a party who appears before the Commission does not form part of the provisions of the Act and it must therefore be presumed that the parliament did not intend that costs should be taken into consideration in any orders which issue from time to time. In my view the function of the Commission under Section 31(1) of the Act is to settle or prevent industrial disputes, but not to award compensation or damages to persons who have suffered in consequence of the actions of another. It would therefore be inappropriate for me to take into account in any way the costs which have been incurred by Miss Gunn when assessing the terms of settlement relating to this particular industrial dispute, and I therefore do not do so. For the reasons explained I have decided to calculate the sum which is to be paid to Miss Gunn as follows:-
ORDER Having presided over a hearing under Section 29 of the Act I am of the opinion, after affording the parties at the hearing a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing that, for the purpose of settling this particular industrial dispute I do hereby order pursuant to Section 31 of the Act that Fahan School pay to Miss Harriet Gunn a sum of $49,200. I further Order that this sum be paid to Miss Harriet Gunn within 21 days from this date. Dated at Hobart this 26 day of November 1993.
A Robinson Appearances: Date and Place of Hearing: |
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