T5762 - 11 December
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The State Public Services Federation Tasmania and Minister for Public Sector Management
Industrial dispute - finding of harsh and unjust dismissal - reinstatement ordered with payment of lost wages and associated entitlements REASONS FOR DECISION On 9 November 1995 I issued Reasons for Interim Decision in the matter of an application by the State Public Services Federation (SPSFT) [now the CPSU(SPSFT)] for a hearing pursuant to Section 29(1) of the Industrial Relations Act 1984 (the Act). The application sought a hearing to settle an industrial dispute concerning the alleged harsh and unjust dismissal of Mr Matthew Goodman who had been employed by the Minister for Public Sector Management (the Minister) as a compliance inspector with the Department of Treasury and Finance. Hearings in relation to such application were held on 14 and 27 September 1995. The Commission was unable to settle the dispute by conciliation and was required therefore to arbitrate the matter. Findings were made that the Minister had not satisfied the onus of proving serious misconduct warranting the dismissal of Mr Goodman; that Mr Goodman was denied natural justice; and that in all of the circumstances the termination of this person's employment was both harsh and unjust. In my Reasons for Interim Decision I concluded by saying:
As a consequence the hearing resumed on 1 December 1995 to give to the parties a reasonable opportunity to make any relevant submissions concerning what remedy was best suited to the settlement of this particular dispute. The SPSFT application pursuant to Section 29 of the Act sought that, under the heading "Required Outcomes" the Commission find that the action by the Department to summarily dismiss Mr Goodman was both harsh and unjust; and that the Commission order the reinstatement of Mr Goodman with all entitlements as from the date of dismissal to allow the process of natural justice to be undertaken as laid down by the State Service Act (Section 54-55). Notwithstanding the fact that re-instatement of Mr Goodman to his former position was the applicant's stated objective, Ms Strugnell for the SPSFT advised the Commission on 1 December that from all of the indicators given to her in conversations held with the Minister's representative in the period following my interim decision of 9 November 1995, Mr Goodman would return to a hostile environment if reinstated, and with the employer wanting, as she put it, "to have a second bite of the cherry". By this she explained that it was made quite plain to her that Mr Goodman would again face disciplinary processes in relation to those matters which led to his dismissal on 4 August 1995 and which had already been raised in proceedings before the Commission. At page 70 of transcript of 1 December 1995 she had this to say:
Ms Strugnell said that because there were now good grounds for believing that the reinstatement of Mr Goodman would place him in a very untenable position, the Commission should decide that, in the alternative, a sum of money should be awarded in settlement of this particular industrial dispute. In this regard the SPSFT relied upon the following comments of Green C.J., Supreme Court of Tasmania (Full Court) delivered on 27 July 1995, concerning Newtown Timber & Hardware Pty Ltd v. Gurr and Gozzi, at page 7:
In response Mr Hanlon for the Minister first requested that the Commission facilitate the issue of remedy for resolving the dispute through the exercise of off-record conciliation discussions, and this was tried for a time. However when the hearing resumed Mr Hanlon adverted to the fact that whilst discussions between the two parties explored the question of the quantum of a payment being made to Mr Goodman, no agreement was reached. Mr Hanlon then presented argument against the ordering of a sum of money to Mr Goodman based upon the period of time which had elapsed since the employee's dismissal, which he said might be construed as "damages" based upon the failure of the employer to afford him natural justice. Whilst it is not absolutely clear from the way it was expressed, I understand that the Minister's position was that I should order reinstatement without payment to allow the disciplinary processes available under the State Services Act to run their course. Decision In deciding the question of remedy for resolving this particular industrial dispute, following the findings which were made earlier, I am very much aware of the need to have proper regard for the provisions of the Act; the Reasons for Decision1 by the Full Bench of this Commission issued 30 May 1994, appeal re Harriett Gunn and Fahan School; and the judgments of Cox J., on 25 October 1995, and that of the Full Court of Tasmania Supreme Court on 27 July 1995, A44/1995, re Newtown Timber & Hardware Pty Ltd v. Gurr and Gozzi. I must say I have not been greatly assisted during the most recent hearing because, in my view, the parties did not demonstrate a sufficient understanding of the aforementioned judgements of the Tasmania Supreme Court as they relate to the circumstances of this case. Whilst the SPSFT notification made it clear that it sought reinstatement of Mr Goodman to permit State Service disciplinary proceedings to occur, it later sought, in the alternative, a payment without reinstatement based upon a single quote from Green C.J., in the Full Court judgment concerning Newtown Timber & Hardware Pty Ltd v. Gurr and Gozzi2. The learned Chief Justice (as he then was) did say at page 7 of his judgment that the power to order that money be paid to an employee is only available as a remedy in the alternative to an order that an employee be reinstated, not as a remedy per se. However these comments were made as part of his considerations as to the possible meaning and effect of Section 70(1)(b), and in this regard it is important to note that the then Chief Justice was considering the question as to whether there exists an ability for the Commission to award a money amount in settlement of an industrial dispute per se. The conclusion reached by all three members of the Full Court in matter A44/1995 was that such a remedy is only available to the Commission in circumstances where it has been given jurisdictional capacity to deal with an industrial dispute relating to termination of service of an employee. More to the point is the fact that the Supreme Court has clarified the law by making it clear that in the circumstances of the case before it under appeal there was no original jurisdiction to deal with the application because the logical remedy to unfair dismissal is reinstatement. But that since reinstatement did not form part of that particular application, then the dispute did not have the essential industrial characteristic, and accordingly the Commissioner had no jurisdiction to entertain the proceedings referred to him by the President. Thus the question of an alternative remedy to reinstatement did not arise. In the present case I believe I am entitled to rely upon that part of the written application which sought reinstatement of Mr Goodman to his former position in the Department of Treasury and Finance following the termination of his services to establish jurisdiction. The fact that Ms Strugnell put argument on 1 December 1995 opposing reinstatement did not constitute an amendment to the SPSFT application pursuant to Section 29(1) because the hearing on that day was concerned only with the question of what remedy was available pursuant to Section 31 and appropriate to the circumstances of this case. Although the "required outcomes" sought by the SPSFT, as part of its application, requested an order for reinstatement of Mr Goodman [with all entitlements] "to allow the process of natural justice to be undertaken as laid down by the [Tasmanian] State Service Act (Section 54-55)", the submission put on 1 December opposed the employer using the Tasmanian State Service Act to deal with Mr Goodman in the future in relation to the matters directly related to his dismissal. This was described as having "two bites of the cherry". I agree with the applicant that it would be wrong for Mr Goodman to be "re-tried" in relation to the same matters for which he was dismissed, by using the Tasmanian State Service Act 1984, now that his termination of employment has been the subject of an application pursuant to Section 29(1) of the Industrial Relations Act 1984 and the making of certain findings in this regard. More particularly however the applicant's concerns in this regard, whether well founded or not, explain why on 1 December 1995 it suggested reinstatement of Mr Goodman to his former position would no longer be feasible, and in the alternative suggested that an order for the payment of a sum of money was both allowable and justified in prevailing circumstances. Accordingly I do not believe the position adopted by the SPSFT on 1 December detracted from or contradicted any part of its formal application for reinstatement of its member. Finally I point out that I have afforded the parties at a hearing the reasonable opportunity to make any relevant submissions and taken into consideration the views expressed by them as to what should be done or what action should be taken for settling the particular dispute. It is my decision, based upon the findings earlier made, that Mr Matthew Goodman be reinstated to the position he occupied in the Department of Treasury and Finance prior to his dismissal on 4 August 1995 on and from 8.45am Thursday, 14 December 1995. I further decide that the Minister for Public Sector Management pay to Mr Matthew Goodman all lost salary and allowances and any other benefits which would have normally accrued to Mr Matthew Goodman had he been employed on full salary during the period from 5 August 1995 until 13 December 1995 inclusive. Payment in accordance with this prescription must be made to Mr Matthew Goodman within fourteen days of the date of this decision. My decisions in this matter constitute an Order pursuant to Section 31 of the Industrial Relations Act 1984 and is in settlement of an industrial dispute.
A. Robinson Appearances: Date and Place of Hearing: 1 T.4774 of 1993 |