TASMANIAN INDUSTRIAL COMMISSION

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

Health Services Union of Australia, Tasmania No. 1 Branch
(T12114 of 2005)

and

Tasmanian Association for Mental Health

Industrial dispute - alleged unfair termination of employment - denial of procedural fairness - termination unfair - annual leave - notice - order issued

REASONS FOR DECISION

[1] On 6 June 2005, the Health Services Union of Australia, Tasmania No. 1 Branch (the HSUA) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Tasmanian Association for Mental Health (the Association) arising out of the alleged unfair termination of employment of Janette Sherrington.

[2] The matter was listed for a hearing (conciliation conference) on 29 June 2005. Mr C Stringer, with Miss S Loveless, appeared for the HSUA. Mr C Williams appeared for the Association.

[3] Ms Sherrington commenced employment with the Association in October 1997. Prior to that she had served in a voluntary capacity. I was informed that she was a life member of the organisation.

[4] Ms Sherrington's role with the Association was that of Project Officer, with particular responsibility for the "Champs Camp" program.

[5] On 16 May 2005 Ms Sherrington received a letter from her employer requiring attendance at a meeting at 11.00am on 17 May. The letter indicated that the purpose of the meeting was to "discuss serious misconduct at the weekend camp at Orana Girl Guides premises 13 may 05 to 15 May 05". The letter outlined various areas of concern, which were to be discussed at the meeting.

[6] Ms Sherrington was suspended on full pay and advised that failure to attend the meeting on 17 May would result in "termination of pay".

[7] Ms Sherrington replied in writing that same day advising that she would be unable to attend the meeting as she required more time to prepare her response to the allegations. Further she wished to seek advice from her union.

[8] The following morning Ms Sherrington telephoned the Association office at approximately 10.30am and confirmed that she would not be attending the meeting for the reasons outlined in her correspondence.

[9] Later that same day Ms Sherrington received written advice that her employment had been terminated, effective immediately.

[10] The conciliation conference process was complicated by the parlous financial situation of the Association as a consequence of an alleged fraud, discovered on or about 31 May 2005. However one aspect of the dispute was settled by agreement and recorded on the record.

[11] Section 31(1) of the Act reads:

"Subject to this section, where the Commissioner presiding at a hearing under section 29 is 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 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 was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken."

[12] Both parties indicated that they did not wish to call evidence or make additional submissions and were content for the Commission to make an order in settlement of the dispute, based on the material before me.

[13] Given the nature of the allegations against Ms Sherrington, I consider her request for additional time to prepare a response to be a reasonable one. It follows that the employer's decision to terminate on the basis of her non attendance at the 17 May meeting, amounted to a denial of procedural fairness, and I find accordingly.

[14] The Commission was not asked to make any findings as to the substance or otherwise of the allegations.

[15] In addition to the denial of procedural fairness, I have taken the following into account:

· The length of service of Ms Sherrington, together with her life membership status.

· The absence of notice.

· The likelihood that an amount of accrued annual leave is owed, noting that the absence of records would make the particularisation of this problematic.

· The likelihood of the Champs Camp program coming to an end in the foreseeable future, and the impact that this might have had on Ms Sherrington's future employment.

· The parlous financial circumstances of the employer.

[16] Having regard for the totality of the circumstances, I make the following order in full settlement of this dispute.

ORDER

Pursuant to section 31 of the Industrial Relations Act 1984, I hereby order that the Tasmanian Association for Mental Health, 97 Campbell Street, Hobart, Tasmania 7000, pay to Janette Sherrington, an amount of one thousand five hundred dollars ($1500), such payment to be made not later than 5.00pm Wednesday 20 July 2005.

Tim Abey
COMMISSIONER

Appearances:
Mr C Stringer, with Miss S Loveless, for the Health Services Union of Australia, Tasmania No. 1 Branch
Mr C Williams for the Tasmanian Association for Mental Health

Date and Place of Hearing:
2005
June 29
Hobart