T5994
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union - and Minister for Public Sector Management
Industrial dispute - alleged harsh, unjust and unreasonable dismissal of an employee from the Department of Education and the Arts - unfairness found - reinstatement ordered REASONS FOR DECISION This matter concerned an application by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the Union) for a hearing pursuant to Section 29(1) of the Industrial Relations Act 1984. The application stated that:
At the commencement of the first day of hearing the Union sought and was granted leave, with consent of the Minister, to add the following words to the application:
The Commission explored the possibility of settling the dispute through the conciliation process but it became apparent that this avenue was not a viable option, and in the alternative, recourse to arbitration became necessary. In presenting the Union's case Mr O'Brien expressed a concern at the process adopted by the Department and in its employment practices. Mr O'Brien said Mr Green was originally appointed as a temporary cleaner/groundskeeper from 27 October to 12 December 1994 but did not finish at the expiration of that time, and his employment simply continued on into 1995. It was mutually understood that Mr Green was relieving another person who was off on leave (apparently for an indefinite period). The Commission was advised by Mr O'Brien that Mr Green was employed at the Glen Huon Primary School doing 20 hours cleaning and 10 hours ground maintenance work per week. Even though the person Mr Green was relieving did not return to work Mr Green's services were terminated on 29 November 1995 and another person was appointed in his place to perform the same duties. Mr O'Brien said there was no record of any complaints relating to Mr Green's work performance or conduct; but rather he had been commended for his loyalty and diligence. The Union said that Mr Green had been treated in a harsh and unjust manner and as a so called "temporary" employee had no right of redress under the provisions of the Tasmanian State Service Act. Concern was expressed by Mr O'Brien not only as to the treatment of Mr Green, but also as to the possibility of other employees being treated in a like manner. A reinstatement order was requested by the Union on conditions which were to be no less favourable to Mr Green than those which previously applied at the Glen Huon Primary School. Sworn evidence was given by Mr Matthew Green in support of the Union's application. Mr Green said he is married and has two small children. He verified that he had been praised for his work on a number of occasions and went out of his way to set a good standard. He also said he was employed to relieve another person whom he was given to understand was absent on stress leave, but did not know when that other person was likely to come back to work. After a period of approximately 12 or 13 months of work at Glen Huon Primary School Mr Green said he was told that the person he was relieving was not coming back to work. The Bursar and teachers at the school said he should get the job. Mr Green told the Commission he had never been criticised concerning any matter. All that he could recollect was that once a note was left for him requesting that he sweep the verandah. That was early in 1995. It was further testified by Mr Green that he had readily participated in a training program and was given paid time off in this regard. Mr Green said he had previous cleaning experience when employed at Huonville High School for approximately one year before going to Glen Huon Primary. In all he had been employed in this capacity for over two years. When he heard that the person he was relieving had resigned Mr Green asked if he had the job. He said he was advised that he needed to fill out a form and to address the selection criteria if he wanted to continue in the same job. Help in completing the application was provided by teachers at the school. Mr Green said he was told by the school principal later that he had put in an excellent submission. He had also been interviewed by a selection panel on 15 November 1995. A letter was later received telling Mr Green his application for the job was unsuccessful and he was given seven days notice to finish on 23 November 1995[sic]. Mr Green said he wished to be reinstated in his employment. Sworn evidence was also given by Ms Jill Archer who is employed by the Union. She gave details as to the efforts made to secure Mr Green's continued employment through contacts made with Departmental officers. At the conclusion of proceedings on the first day of hearing Mr Payne, for the Minister, sought and was granted an adjournment to enable him to prepare a response to the Union case. Upon resumption sworn evidence was given by Mrs P. Jeffery, the Acting Principal of Glen Huon Primary School, who said Mr Green was clearly given to understand that his position was temporary, that he could be given seven days notice to finish at any time and that his was a relieving position for another person who was absent on workers' compensation. Mrs Jeffery also gave details of her involvement on the selection panel which was formed to select a person to fill the position of cleaner/groundskeeper which had been declared vacant, and said also that she had never said anything to Mr Green which would give the impression to him that his position was secure. Mr Payne argued that Mr Green was not unfairly treated and emphasised that this employee was fully aware that he was a temporary employee, whose employment was only in a relieving capacity. He said Mr Green's testimony was inaccurate concerning certain times and dates mentioned by him. Furthermore it was not true that there was no remedy at all open to Mr Green if he had a grievance concerning alleged unfair treatment as provision exists under the Tasmanian State Service Act [Section 66(2)]. It was further stated that all award requirements had been met and following the advertising of the vacant position Mr Green had ample opportunity to be selected on merit. Decision: The question as to whether or not the services of Mr Green were terminated unfairly is to be determined upon the facts of the case and the standards of conduct required by the Industrial Relations Act 1984 (the Act). In this regard Section 31 of the Act provides that (inter alia):
The Commonwealth Act and the Tasmanian Act clearly require that the ILO Conventions concerning the termination of employment at the initiative of the employer be taken into account. In this regard Convention 158 provides in Article 2, that (inter alia):
Mr Green had initially been employed as a temporary cleaner/groundskeeper for a specified period of time, i.e. 27 October to 12 December 1994. However from that point forward he was simply kept on and had verbal advice that he was relieving another employee. It follows then that Mr Green's employment could not be excluded from falling within the requirements of ILO Convention 158 on the basis of Article 2(a) above because it was not for a specified period of time after 12 December 1994. Nor could his category of employment be excluded on any other basis mentioned by the Convention. Article 4 of the Convention provides that:
The facts are that there was no valid reason provided, or apparently thought necessary by the Department, as to why the services of Mr Green were terminated. The bureaucratic view was apparently that since the person being relieved had resigned then the "vacant" position should be advertised and Mr Green could apply for it if he wished. This view is inconsistent with the requirements of the Act and relevant ILO Conventions relating to the termination of services of an employee by an employer. Given these facts and having proper regard for all of the evidence and submissions made at the hearing, I have concluded that the termination of Mr Green's services was unjustified and entirely unfair. Given these findings it is my decision that Mr Matthew Green be reinstated to the same position which he occupied prior to his termination and on conditions no less favourable to him. In the alternative the Minister is at liberty, with the agreement of the Union, to reinstate Mr Matthew Green to a similar position which is located in the same locality as before. I further decide that such reinstatement is to be without loss of wages and other entitlements which would accrue, including continuity of service. All lost wages incurred by Mr Matthew Green since the time of his dismissal must be paid to him within seven days from the date of my decision. This decision constitutes an Order pursuant to Section 31 of the Industrial Relations Act 1984 and is in settlement of this particular industrial dispute.
A. Robinson Appearances: Date and Place of Hearing: |