T5762 - 9 November
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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 - alleged harsh and unjust dismissal of an employee - onus of proving misconduct not satisfied - finding that natural justice denied - further conference concerning remedy REASONS FOR INTERIM DECISION On 17 August 1995 the State Public Services Federation Tasmania (SPSFT) made application to the President for a hearing pursuant to Section 29(1) of the Industrial Relations Act 1984. In its application the SPSFT indicated the existence of an industrial dispute with the Minister for Public Sector Management regarding the alleged unfair dismissal of a Compliance Inspector from the Department of Treasury and Finance. Following a request for further detail, the SPSFT submitted the following in writing:
This detail was by consent incorporated in the terms of the SPSFT application. The Commission attempted in the first instance to resolve this matter by conciliation. However it became apparent that such an avenue could not produce the desired result and the parties were invited to put the matter to arbitration. The background circumstances of this industrial dispute were that Mr Matthew Goodman was appointed to the position of Inspector in the Revenue and Gaming Division of the Department of Treasury and Finance, effective from 13 October 1994, subject to a probation period of six months. On 20 April 1995 Mr Goodman was advised by Mr Simon Barnsley, the Director of Revenue and Gaming, that his probationary period was to be extended for a further six months during which his performance would continue to be monitored. This notification by Mr Barnsley made reference to what was described as "the serious breach of confidence which had occurred and the significance of responsibility held by an officer appointed to a position of Taxation Inspector". However Mr Goodman was told at the same time that:
Mr Goodman subsequently applied for another position within the same organisation - that of Compliance Officer Class VIII - and this gave rise to a Supervisor's report by Principal Compliance Officer, Mr Gavan Wood, in the context of Mr Goodman's suitability for this position. The report by Mr Wood was dated 23 June 1995 and, apart from addressing the level of Mr Goodman's skills and achievements during the period of his employment, was not critical of this employee's conduct or performance. Notwithstanding this Mr Wood submitted a revised report on 1 August 1995 based, in part, upon "comments gleaned from officers working closely with Matthew". Mr Wood said in his second report that these comments (gleaned from other officers) questioned Mr Goodman's personal qualities, including whether or not he possessed good time and personal management skills, and the ability to work without supervision. Mr Wood also said that the breach of secrecy provisions suggested there was some question about his ability to exercise good judgment, initiative, and tact. The report did however acknowledge that Mr Goodman had been given no opportunity to refute or explain the reasons for such comments (by others) and that he should be afforded natural justice in this regard. On 2 August 1995 Mr Goodman was advised in writing by the Secretary of the Department of Treasury and Finance that he was being suspended from duty with salary pending further investigation of an alleged offence under Section 54 of the Tasmanian State Service Act 1984. Whilst reference was made to a meeting between Mr Goodman and the Director, Revenue and Gaming Division, Mr Barnsley, on 1 August 1995 and the fact that Mr Barnsley had given advice to the Secretary, the nature of the alleged offence was not specified. However the Secretary again wrote to Mr Goodman on 3 August 1995 and said that he had received a report from Mr Simon Barnsley, Director of Revenue and Gaming, giving details of the case against him. The Secretary said that he had reviewed the report of Mr Barnsley and as a consequence found Mr Goodman had acted improperly in his employment and it was intended to terminate his employment with the Department of Treasury and Finance. The Secretary added that before taking any action he would give to Mr Goodman the opportunity to respond to what was described as the case against him. The Secretary said that:
The Secretary then went on to say:
On 3 August 1995 Mr Goodman made a pre-arranged visit to the Revenue and Gaming Division of the Department of Treasury and Finance to collect some property. Following the circumstances of an incident which occurred in the course of that visit, Mr Goodman was summarily dismissed by the Secretary of the Department. The reasons for termination are to be found in the letter of termination which was hand delivered to him on 4 August 1995. The letter stated as follows:
The case presented by the SPSFT included the presentation of sworn evidence by the dismissed employee, Mr Matthew Kent Goodman. Mr Goodman testified that early in 1995 he was sharing an office with a Mr Alan Robertson, a Senior Inspector, who said he intended inspecting a business which was formerly owned by Mr Goodman's father and also a business currently owned by his brother. After Mr Robertson had carried out these inspections he was said to have approached Mr Goodman and requested him to ask his brother to exert some pressure on his father to produce certain records which were required. This Mr Goodman did, but found that such records had been retained by the new owner but reportedly disposed of by him after a time. Mr Goodman said this created a stressful situation for his father. It was further testified that some seven weeks later Mr Goodman accidentally discovered an open box containing his father's missing records. He then telephoned the new owner to ascertain if he had located these documents and sent them to the Department for Mr Goodman's attention but was told this was not the case. Mr Goodman told the Commission that he then informed his father that the missing records had turned up. He said his words to his father were:
The witness said that was the end of his involvement in that matter so far as he was concerned. Mr Simon Barnsley, Director of Revenue and Gaming, had raised this particular issue with Mr Goodman who explained that he believed he had become involved through Mr Alan Robertson's intervention and prompting to coerce his brother and father to produce the required documents. Notwithstanding this explanation Mr Barnsley had indicated that the matter would be referred to the Secretary of the Department, Mr Challen, and a possible outcome could be an extension of the period of probation, but apart from that it was not intended to take this particular matter any further. The SPSFT supplied as exhibits a memorandum received by Mr Goodman in relation to an extension of his period of probation (SPSFT1) and Mr Goodman's written comments to the Secretary of the Department in relation to the issues raised by Mr Barnsley (SPSFT2). Mr Goodman described as "self serving" comments contained in a report made by Mr Robertson (SPSFT3) to the effect that he had sought to keep Mr Goodman away from the happenings of rental duty liability that might devolve to his father. Exhibit (SPSFT4) was a copy of a supervisor's report which was requested by Mr Goodman to supplement his application for a higher grading within the Section, and made available to the Commission to support the argument that Mr Goodman's work was generally favourable to that time - even though some required skills remained untested. Mr Goodman told the Commission that he was summoned to Mr Simon Barnsley's office at 3.30pm on 1 August 1995 and shown a piece of paper which had been found in the photocopier and previously discussed with Mr Gavan Wood. According to the evidence given, Mr Barnsley said he viewed the incident as a very serious matter and produced a supplementary Supervisor's report (SPSFT5). Mr Goodman described the supplementary report as at odds with the first report, being far less complimentary, and raising alleged deficiencies which had at no stage been discussed with him by his Supervisor or anyone else. The SPSFT argued that the content of the two Supervisory reports contained contradictory findings of fact, instancing that whereas the first report said of Mr Goodman:
The second report by the same author said in part that:
Mr Goodman stressed that prior to this report there had been no criticism made to him by Mr Wood in relation to these issues. He said he had never been told by Mr Wood to the effect that he should "buck up"; or that he was not productive enough; or that he was not taking ownership of tasks. The witness also said that on the same day he was denied the opportunity to respond to the revised report but was made to be present when, with Mr Gavan Wood, much of the documentation on his user drive on the computer was printed out. The print-out included 6 or 7 private documents and Mr Goodman took exception to their reproduction, and as a consequence a heated discussion followed. Mr Goodman said he was upset because he thought it was his personal computer drive and it contained very sensitive documents, such as letters to his wife and letters to creditors. It was admitted that of the 6 or 7 matters printed in his presence it was thought that they included a statutory declaration which related to a small claims matter and some pro forma conveyancing documents. At the conclusion of this incident Mr Goodman said he was told by Mr Simon Barnsley to leave or be suspended. The same night at approximately 8.30pm Mr Barnsley telephoned Mr Goodman to tell him he was suspended with pay and this would be confirmed by formal notice later. Mr Goodman told the Commission he did not know any detail of the suspension process so arranged with Mr Barnsley to collect urgently needed personal items from his desk. As a consequence of the arrangement made Mr Goodman went to the Department on 3 August and met Mr Gavan Wood. Shortly afterwards Mr Barnsley appeared in the library with a big cardboard box which had Mr Goodman's effects in it. According to his testimony Mr Goodman was surprised that this material had been removed from his locked desk, which he said must have been forced open. There was a request for Mr Goodman to surrender his warrant as an inspector, which was not with other property in the cardboard box, and it was agreed this would be obtained by Mr Goodman from his home and immediately handed over to his supervisors. In the meanwhile Mr Barnsley had said he wanted Mr Wood to look through the contents of the box in Mr Goodman's presence and sort out which belonged to the Department and which did not. Mr Goodman said he regarded this process as a breach of privacy in that Mr Wood commenced scrutinising documents, cheque books, bank books, statements and letters which came from his desk. He said also that eventually the sorting was finished and agreement reached as to "what was theirs and what was mine". However Mr Wood then went and got Mr Barnsley who in turn started the sorting afresh. According to Mr Goodman he was placing his own property in his brief case but when a particular document (SPSFT8) emerged there was a disagreement concerning to whom it belonged. Mr Goodman said the document in question was dated 20 November (1994) and was a release between Jack Duitsch and Stanley Goodman, i.e. Matthew's father. The witness testified that the document belonged to his father and he stressed this to Mr Barnsley who, without explanation, said he was not prepared to let Mr Goodman have it. Mr Goodman said that at this point he lost his temper, and thought he said at the time - "get ......, you are not going to prevent me taking my father's document, and at that stage I put it in the case and slammed the lid". The testimony was that as he commenced to leave the library Mr Goodman heard Mr Barnsley say:
Gavan Wood then allegedly grabbed hold of Mr Goodman's arm and Mr Barnsley moved around so as to place himself between Mr Goodman and the doorway. Mr Goodman said it seemed clear to him that the two others were going to use force to prevent him from leaving, and as a result he thrust Mr Wood aside "and just charged off down the hall". Mr Goodman further explained that he believed he thrust Mr Wood aside by placing his hand on the other's chest. He said Mr Wood fell back against the bookshelf in the library but did not fall to the floor. It was said that following these events both Mr Barnsley and Mr Wood pursued Mr Goodman down the hall when the latter screamed out:
Mr Goodman said that during his flight from the pursuing pair down the stairs he stumbled and sprained both ankles and broke a bone in his foot. It was stated that Messrs Wood and Barnsley pursued Mr Goodman onto the street where they repeated their demand for his warrant. Then Mr Goodman drove himself home and the warrant was collected some 10 minutes later by Mr Gavan Wood and Mr John Douglas. The Minister's representative was given the right to cross-examine and exercised this in a limited way. During the presentation of his evidence-in-chief, as well as when under cross-examination, Mr Goodman presented as a truthful witness and was at all times forthright in the presentation of his version of the events which preceded the termination of his employment with the Department of Treasury and Finance. The SPSFT argued that the circumstances which led to Mr Goodman's suspension prior to his termination had been properly explained in sworn evidence and were in any event not relevant to his termination as they were still under investigation and subject to Mr Goodman's response. Ms Strugnell said that in respect of the events which occurred on 3 August and constituted the only reasons for his dismissal, Mr Goodman had been under stress at the time and there was a very high degree of provocation towards him. She added that it was interesting to note that the document that was the subject of dispute as to its ownership and which led to the incident in the library, was never pursued subsequent to that day. Accordingly, it was argued, there was obviously not the importance attached to it by the Department after the event as there seemingly was during the event because no follow-up contact was made with Mr Goodman or other action taken in this regard. It was also submitted by Ms Strugnell that Mr Goodman's actions of 3 August were not as described by the Secretary in his letter of dismissal (SPSFT9), but were entirely defensive. The Minister presented no witness evidence but responded to the case presented by the SPSFT in a number of ways. The primary position adopted by the Minister was that the Commission should dismiss the application because it had no jurisdiction. In this regard Mr Hanlon drew attention to Section 37 of the Tasmanian State Service Act 1984 which provides that (inter alia):
Special reliance was placed on the fact that Section 37(4)(b) of the State Service Act provides that the Minister, on the recommendation of the Head of Agency concerned, shall .... confirm the appointment or terminate the appointment. And in 37(5) the Minister, on the recommendation of the Head of Agency concerned, may at any time during the period of probation terminate the appointment. Mr Hanlon argued that the dispute concerned the circumstances of an appointment but that an appointment is not an industrial matter under the Industrial Relations Act 1984 (Section 3(1)). It was further argued that jurisdiction did not exist because of the right given to the Minister to dismiss an employee who is on probation, by the Tasmanian State Service Act 1984, and the fact that Section 31(2) of the Industrial Relations Act provides that:
It was further submitted that jurisdiction is denied in this matter by virtue of Section 3(5) of the Tasmanian State Service Act 1984 which provides that:
Mr Hanlon also responded to the SPSFT's case as it relied upon the relevant International Labour Organisation's Convention and the conduct and work performance of Mr Goodman. In this regard Mr Hanlon pointed out that Convention 158, Part 1, Article 2 provides that a Member may exclude from all or some of the provisions of the Convention "workers serving a period of probation ...". It was submitted that the action of the Secretary in dismissing Mr Goodman was entirely reasonable in the circumstances and would have been equally justified even if this person was not on probation, which of course he was. Decision The present application was made by a registered organisation for a hearing pursuant to Section 29(1) of the Industrial Relations Act 1984, and for the making of an order of re-instatement of a former employee to the position previously held, on the basis that his employment was terminated by the Secretary of the Department of Treasury and Finance (being the holder of a delegation from the Minister for Public Sector Management) in circumstances which were allegedly both harsh and unjust. Section 29(1B) of the Industrial Relations 1984 provides that:
The termination of Mr Goodman's employment was effected by the serving of written notice upon him on 4 August 1995 and effective from the close of business the same day. The application by the SPSFT therefore meets the requirements of Section 29(1B) in that it was received by the President on 17 August 1995. The jurisdiction of the Commission to deal with termination of employment matters is derived from Division 2, Section 19, of the Industrial Relations Act 1984. Subsection (2)(c) of Section 19 provides that the Commission may:
An industrial dispute means a dispute relating to an industrial matter, and includes a dispute relating to:
It was the position of the Minister in this matter that Mr Goodman was a permanent employee, on probation, and that accordingly he was properly dismissed by the Secretary of the Department of Treasury and Finance acting on a delegation given to him by the Minister for Public Sector Management. The argument that the Commission lacks jurisdiction in this matter was based, in part, upon the fact that the State Service Act 1984 gives to the Minister for Public Sector Management the right to summarily terminate the services of a permanent employee on probation. The correlation to this argument was that, because the Minister's statutory right to terminate Mr Goodman's services was unfettered, then it followed that no industrial dispute could arise after the event. And as a consequence, Mr Goodman's registered industrial organisation did not have a right to be heard in relation to disputed facts which gave rise to the action taken under delegated authority or an allegation concerning denial of natural justice to Mr Goodman. The Government's position was therefore to argue that, in effect, State servants such as Mr Goodman, who was a permanent employee on probation, were not able to access the Tasmanian Industrial Commission to have their case heard by an independent impartial body in the same way that employees in the private sector can in the same or similar circumstances. Whilst it is beyond question that the State Service Act gives the Minister the right to terminate the contract of employment of an employee pursuant to Section 37 of the Tasmanian State Service Act 1984, it must be pointed out that this is the same right which every employer possesses in the private sector of employment. In my view, jurisdiction under the terms of the Industrial Relations Act 1984 exists to deal with industrial disputes, as defined, and such definition clearly encompasses a dispute relating to the termination of employment or reinstatement of an employee. As the Industrial Relations Act 1984 binds the Crown (Section 4) and its dispute settling provisions do not conflict with any relevant provisions contained in the State Service Act, I reject the argument put in this regard in relation to jurisdiction to hear and determine the outcome of this particular dispute. I also reject the further argument that jurisdiction to conduct a hearing pursuant to Section 29 of the Act did not exist by virtue of the requirements of 31(1A) of the Industrial Relations Act, which provides that:
And in this regard it was pointed out that Article 2 of the Termination of Employment Convention provides (inter alia):
The argument advanced by Mr Hanlon in this regard was that "probationary employees are excluded from the provisions of that convention" (transcript page 12). This was by virtue of the fact that the Tasmanian State Service Act provisions authorise the Minister to dismiss a probationer. Firstly, it must be recognised that I have not yet reached the point of considering the making of an order pursuant to Section 31 of the relevant Act. Secondly, it needs to be recognised that Mr Goodman's period of probation determined in advance was six months. The further period of six months was later determined and it is also open to question as to whether this was of reasonable duration. Furthermore, I cannot agree that this International Labour Organisation's Convention expressly excludes probationary employees, but rather it says that a Member (country) may exclude such a category of employee. And in the absence of any known law of the Commonwealth of Australia which takes up this option then, in my view, jurisdiction to deal with a permanent employee on probation still exists. Certainly a State such as Tasmania may not be regarded as a Member with the full constitutional capacity to exclude itself from an International Labour Organisation's Convention which is observed by the Commonwealth of Australia. And even if it could the Tasmanian State Service Act 1984 does not, as I have already decided, preclude the Tasmanian Industrial Commission from dealing with industrial disputes. It had also been argued that the subject matter of this particular dispute related to an "appointment or promotion" and accordingly was beyond jurisdiction. I accept that 3(1)(i) of the Act excludes "appointments or promotions" from the definition of "industrial matter" and that it would be beyond jurisdiction if the substance of the dispute went to such a question. However I conclude that it is self-evident that the subject matter of the present dispute goes directly to the "termination of employment or reinstatement of an employee" (3(1) of the Industrial Relations Act 1984]. Having satisfied myself as to jurisdiction for the reasons given, I turn to the question of merit and whether in the prevailing circumstances Mr Goodman was unfairly dealt with when his services were terminated, and if so whether reinstatement is justified. Part II - Standards of General Application of the Termination of Employment Convention 1982, provides in Article 4 that:
Mr Goodman had been under suspension prior to the termination of his services on 4 August 1995 but had been given to 9 August to respond to certain complaints against him. However the reasons for his termination only related to the events which occurred on 3 August 1995, as was made clear by the Secretary in his letter to Mr Goodman on 4 August (SPSFT9). The stated reasons for termination were based upon advice from Simon Barnsley and Gavan Wood that, in the course of events, Mr Goodman threatened Mr Barnsley with violence, physically thrust Mr Wood aside and allegedly knocked Robert Oldfield aside, and the opinion of the Secretary that this conduct "is highly improper and totally unacceptable". Notwithstanding the serious nature of those allegations, sworn evidence was given to the Commission by Mr Goodman which put a different light upon the facts relating to the events which took place at the Revenue and Gaming Division on 3 August 1995, and that evidence was not shaken. Based on this evidence the conduct of Messrs Barnsley and Wood was far from exemplary and Mr Goodman's reactions were more understandable if not totally excusable. It was not disputed that Mr Goodman's arm was grabbed, that his free exit was impeded, and shouts of "lock the door" and "stop him" preceded an undignified chase through the building and onto the street resulting in Mr Goodman being injured. The Secretary relied entirely and exclusively upon whatever version of those events was reported to him by senior staff who were themselves directly involved in the events of that day, and they could reasonably be expected to defend their own actions and be critical of those of Mr Goodman. Article 9 of the International Labour Organisation's Convention provides that, inter alia:
Given the strength of evidence produced to the Commission, I am not able to find that the Minister as the employer has satisfied the onus of proving serious misconduct warranting dismissal of Mr Goodman. Separate from that finding, and even more importantly, it has to be pointed out that Article 7 of the International Labour Organisation's Convention, already referred to, provides that:
It is a significant and uncontested fact that Mr Goodman was denied the opportunity to respond to the serious allegations made against him before he was dismissed from the State Service. And there are insufficient grounds for accepting that the employer could not reasonably have been expected to provide Mr Goodman with the opportunity to defend his conduct or performance before he was summarily dismissed, especially as he was already suspended and could not perform any act likely to adversely affect his employer during that time. It follows that I find Mr Goodman was denied natural justice and this constitutes a further reason for finding that the termination of this person's employment from the Department of Treasury and Finance was both harsh and unjust. Given the circumstances of this particular case, I am not prepared at this time to issue an order pursuant to Section 31 of the Act, but I intend to re-convene the hearing in the near future to give the respective parties the opportunity to express their views as to the most suitable remedy to settle this particular dispute.
A Robinson Appearances: Date and Place of Hearing: |