TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Australian Liquor, Hospitality and Miscellaneous Workers Union -
Tasmanian Branch
(T.7183 of 1997)

and

Cradle Mountain Lodge

Industrial Dispute - alleged unfair dismissal - application dismissed

REASONS FOR DECISION

This application was lodged by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the applicant) seeking the resolution of a dispute with Cradle Mountain Lodge (the Employer) relating to the dismissal of a Ms L Ferguson (the Employee) on 5 August 1997.

At a preliminary hearing on 3 September 1997 in Burnie it was established that no agreement could be reached in this matter and it was adjourned until 24 September 1997 in Burnie and the hearing concluded in Hobart on 2 October 1997.

The applicant maintained that the dismissal of the Employee by Cradle Mountain Lodge was harsh, unjust and unreasonable. On that basis the applicant sought re-instatement of the Employee.

The background to this matter is that the employee was on sick leave on 30 July 1997. She had advised the Employer of the absence in accordance with normal practice and had supported the absence with a Doctors Certificate which stated that she was totally unfit for work because of a painful right shoulder for the period 30 and 31 July 1997. According to the work roster¹ the Employee was rostered off work on 31 July and 1 August 1997.

On 2 August 1997 the Employee reported for work at the normal time 8.00 am and commenced cleaning the tavern bar, toilet and passage way. At approximately 8.45 am the Employee left the tavern bar to commence cleaning tourist cabins. At approximately 10.40 am the Employee left the work site and went home.

The main issue in this matter is the circumstances in which the Employee departed the work place.

A summary of the evidence of the Employee is that:-

• she reported to work on 2 August with a sore shoulder and was in pain while she was working in the tavern area.

• At approximately 8.45 am she went to service cabins on the understanding that her supervisor Ms Kym Ryrie would assist her as soon as possible.

• at approximately 10.40 am she went back to where Ms Ryrie was working, dropped in the keys and advised Ms Ryrie that she could not complete her shift because of her shoulder problem and that she was going home.

• she did not report for work the next day as her shoulder was still not right and she did not ring Ms Ryrie as she (Ms Ryrie) would know the reason for her absence on that day. (Sunday 3 August) In any case Ms Ryrie had indicated on the Saturday that she would make contact with the Employee.

• Monday 4 August was a rostered day off. During that day the Employee was contacted and advised that she had lost her job and that she should attend a meeting with Management the next day 5 August.

• the Employee attended the meeting, with a union official, but does not remember much about the detail discussed however, acknowledges her dismissal was confirmed.

• the Employee accepted that she had received five(5) written warnings on various issues since May 1995.

• she also accepted that she had been dismissed in 1995 but had subsequently been re-instated or re-employed.

Mr Clifford submitted that the Employee had been wrongfully dismissed as she had legitimately gone home sick on Saturday 2 October. On leaving work she had advised her Supervisor of her problem and had handed in the keys to cabins. The supervisor not only knew the Employee had gone home sick but had indicated on the employee's departure that she would contact her (presumably the next day).

Mr Clifford produced a further Doctors Certificate² which indicated that the Employee had attended the medical centre on 30 July and 4 August and was unfit for work on 2 and 3 August because of a shoulder injury.

Mr Clifford spent some time in going through the written warnings³ that had been given to the Employee.

I will not go into detail regarding his submissions on the warnings however, he maintained there were problems with all of them, some so fundamental that they were rendered useless in terms of their value as evidence against the Employee relating to her previous work performance. Others denied the Employee fair and equitable treatment.

He submitted the Employee had left the workplace early for sickness or other legitimate reasons twice (including the 2 August) in her four years of employment at Cradle Mountain Lodge, a good record by any standard.

Three Management employees of Cradle Mountain Lodge gave evidence for the Employer they were the Resort Managers, Mr G. Williams and Ms T. Williams and Ms K. Ryrie, Housekeeper.

Some of the evidence of the Employer witnesses was conflicting and did not assist the Employers position and in some instances the Commission, in coming to a decision in this matter. However, I believe the critical evidence for the Employer came from the Employee's immediate Supervisor Ms Ryrie and I summarise the main points of her evidence as follows:-

• On the morning of 2 August she was working in the same area as the Employee.

• she observed that the Employee was quiet but otherwise working as normal giving no indication of problems with her arm.

• at approximately 8.45 am she advised the Employee that she would come to the cabins as soon as possible and assist the Employee with the work load. The Employee departed to work in the cabins.

• at approximately 10.40 am the Employee arrived at her (Ms Ryrie's) work location, threw the keys on her desk and simply said "I am going home Kym". The Employee was crying and immediately left the room.

• the Employee did not indicate that she was having problems with her arm and she did not complete the daily time sheet which was the normal procedure in such circumstances.

• she expected the Employee to turn up for work on Sunday 3 August. The Employee did not and did not advise anyone of her reason for absence.

• the departure of the Employee on 2 August 1997 caused delays with services for that day and with no advice from the Employee on Sunday a re-allocation of work among other employees.

• the Employee did however ring the Lodge on Sunday 3 August but would not speak to Ms Ryrie, telling the person who answered the phone she wanted to speak to Mr Williams.

• Ms Ryrie indicated she had been concerned about the Employees performance in the weeks leading up to 2 August. She instanced an occasion when on 14 July the Employee's failure to check a cabin resulted in guests being shown to an unserviced room (a written warning to the Employee followed this incident)⁴.

• Following the above incident Mr Williams had instructed Ms Ryrie to provide coaching/ training for the Employee and also to work with her to monitor her work and assist with any problems.

• Ms Ryrie conceded she had not done any monitoring or training of the Employee up to the 2 August.

• Supervisors and work colleagues had complained to her about the poor standard of the Employees work.

• she no longer had any trust or confidence in the Employee.

Mr Gates for the Employer submitted that if the Commission finds that the Employee properly advised the Employer (Ms Ryrie) that she was sick and unable to continue work that the Employer would pay sick leave for 2 August 1997.

Otherwise, in the absence of such advice the Employee has abandoned her employment and has properly been dismissed.

Her five (5) written warnings and a dismissal in 1995 (that was later reversed) clearly showed that the Employee had an unsatisfactory attitude to her work. She

knew that she was on her final warning. He submitted the evidence of the Employer on the key issues in this matter was clearly more credible than the evidence of the Employee. He highlighted the fact that the Employee could remember events on the 2 August but could not remember anything about the meeting of 5 August.

Mr Gates drew a number of conclusions from the incidents involving the Employee over the period 2 - 5 August. However, I will not summarise them as I regard them as no more than his opinion of the motives or actions of the Employee over those days.

I believe the clear issue in this matter is whether or not the Employee left her workplace on the 2 August in an appropriate manner. If she did, it is already conceded by Mr Gates that she will be paid sick leave for the balance of the day.

If she did not, did she in effect abandon her employment? Or did she commit an indiscretion which would be another in addition to those claimed to have occurred since 1995 and the subject of written warnings detailed in exhibits G.1 - G.5?

To answer the above I can do no more than examine the contrasting evidence of the Employee and the Housekeeper, Ms Ryrie. In doing so I come to the clear conclusion that the evidence of Ms Ryrie going to what happened on 2 August is clearly preferred over the evidence given by the Employee.

Ms Ryrie answered questions put to her in a considered and clear manner compared to the Employee who was at times vague and at others could not remember. When she (the Employee) was clear about her answers it was in describing the events surrounding her departure from the work site on 2 August. That evidence was generally in total conflict with that of Ms Ryrie.

I therefore believe the Employee left the work site in an inappropriate manner. I also, from the evidence, believe that she was not told by Ms Ryrie on departure on 2 August that she (Ms Ryrie) would be in touch with her, therefore the Employee had an obligation to advise her Employer of her absence on the Sunday. This she did not do.

These indiscretions I believe are serious in any employment relationship but particularly so where service to guests/ tourists is essential to the continued future of the Employer's establishment.

The absence of the Employee on both days constituted a significant difficulty for the Employer and may ultimately have caused delays for guests. Part of the evidence of Mr G. Williams (Resort Manager) went to the problems delays in servicing rooms cause with guests.

There were no complaints from the applicant in relation to the process leading up to the termination of the Employee. The warnings for previous alleged indiscretions were the subject of debate between the parties. I believe that one, possibly two of the warnings were discounted or discredited by the applicant but others were sufficiently sustained for me to conclude that they provided useful evidence to me

in coming to a decision in this matter. For example the non checking of a cabin by the Employee on 14 July resulted in guests being shown to a cabin which had not been serviced causing inconvenience to the guests and embarrassment to management. This incident was explained by the employee as an honest oversight. This may have been so, but a serious one and to have been followed two weeks later with the events described in this decision lead one to obvious conclusions.

In all of the circumstances I am not prepared to intervene in this matter nor in any way change the decision of management. The application is therefore dismissed.

J G King
DEPUTY PRESIDENT

Appearances:
Mr M Clifford for the Australian, Liquor Hospitality and Miscellaneous Workers Union - Tasmanian Branch
Mr S Gates for the Tasmanian Chamber of Commerce and Industry Limited.

Date and place of hearing:
1997
September 3, 24
Burnie
October 2
Hobart