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Tasmanian Industrial Commission

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T434 - 11 July

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T434 of 1986 IN THE MATTER OF an application by the Hospital Employees' Federation of Australia (Tasmanian Branch No.2) for a hearing to settle an industrial dispute with Mount St. Vincent Nursing Home
Re: termination of an employee
COMMISSIONER J G KING HOBART, 11 July 1986

PRELIMINARY DECISION

APPEARANCES:
For the Hospital Employees' Federation 
of Australia (Tasmania No. 2 Branch)
- Mr J W L Simmonds
For the Tasmanian Chamber of 
Industries on behalf of 
Mount St. Vincent Nursing Home
- Mr W J Fitzgerald
DATE AND PLACE OF HEARING:
9 July 1986                   Hobart

This matter came before the Commission by way of an application for the hearing of a dispute pursuant to Section 29(1) of the Industrial Relations Act 1984. The Hospital Employees' Federation of Australia, Tasmanian Branch No. 2 (H.E.F. No 2) the applicant in this matter, detailed the dispute as follows:

"The Mt. St. Vincent Home has effectively terminated the services of a member of this Branch, Sue Jaffray, a State Registered Nurse with effect from 26 June 1986.

The Branch is of the view that the dismissal is unnecessarily harsh, unreasonable and unfair in all the circumstances."

Mr Fitzgerald representing the Mt. St. Vincent Home (the Home) sought from the Commission a ruling on a threshold question.

Stated briefly it was Mr Fitzgerald's view that the employee in question had been engaged as a "casual". Her status had not been changed even tough her employment had been for a period of approximately six (6) months. As the employee was still a "casual" at the time of her termination of employment, there could be no question of that termination being unnecessarily harsh, unreasonable or unfair.

It was Mr Fitzgerald's view that the Commission should find accordingly thus ending the matter.

Evidence going to the circumstances of Sister Jaffray's employment was given by the Matron and Mr Prenter who is responsible for the day-to-day administration of the Home.

Mr Simmonds appearing for the H.E.F. No. 2 strongly disputed the threshold position adopted by the Home.

It was his submission that various actions on the part of the Home confirmed in his mind, and also Sister Jaffray's, that she was in fact a part-time employee. In any case it was his view that the Hospitals Award does not allow the employment of casuals in the circumstances of Sister Jaffray beyond eight (8) weeks. Any employee engaged in her circumstances on a continuous basis beyond eight weeks cannot be regarded as casual.

It was Mr Simmonds' view that the employment of Sister Jaffray was without doubt part-time and in those circumstances her termination was harsh, unreasonable and unfair. The matter should therefore go to the merit and be determined on that basis.

The award definition of a casual reads:

"A "casual employee" is a person who either

(i) relieves a full-time or part-time employee, or

(ii) is engaged temporarily for specific duties for a period not exceeding 8 weeks."

It was conceded by the employer that Sister Jaffray was originally engaged as a casual in accordance with (ii) above.

I have given careful consideration to the submissions and evidence in this matter. I have also considered the application of the various relevant award provisions to the circumstances.

It is my opinion that the onus rests heavily with the employer to observe the appropriate provisions of the award when engaging employees.

Evidence was given that Sister Jaffray's employment beyond eight weeks without positive moves by the Home to "regularise" the situation was an "unfortunate oversight". There was no evidence to suggest that such occurrences had taken place in the past.

It is my conclusion that at the time of her termination Sister Jaffray was a part-time employee and I decide accordingly.

 

J G King
COMMISSIONER