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T756

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T.756 of 1987 IN THE MATTER OF AN APPLICATION BY THE FEDERATED CLERKS' UNION OF AUSTRALIA FOR A HEARING PURSUANT TO SECTION 29(1) OF THE ACT TO SETTLE A DISPUTE WITH THE TASMANIAN PUBLIC SERVICE ASSOCIATION
   
  RE: DISMISSAL OF AN EMPLOYEE
   
DEPUTY PRESIDENT A. ROBINSON HOBART, 13 July 1987
   

REASONS FOR DECISION

   
APPEARANCES:  
   
For the Federated Clerks' Union
     of Australia
Mr D.J. Fry with
Mr K. Illingworth
For the Tasmanian Public Service
     Association
Mr G.J. Vines with
Mr A.H. Evans
 
DATES AND PLACES OF HEARING:  
 
11 May 1987
20 May 1987
18 June 1987
7 July 1987 
Hobart
Launceston
Launceston
Hobart

 

 

The dispute came before the Commission by way of a Section 29 application and concerned an allegation by the Federated Clerks' Union, Tasmanian Branch, (FCU) that one of its members (Mrs S. Ryan) was wrongly dismissed from her employment by the Tasmanian Public Service Association (TPSA). Initially reinstatement was sought.

When this matter first came before the Commission for hearing on 11 May 1987, the TPSA raised a threshold question in relation to jurisdiction.

Consequently the following interim decision in this regard was issued on 19 May 1987:

"At the outset the TPSA submitted that I was not able to further hear the dispute for want of jurisdiction.

Reasons advanced were that the hearing was pursuant to Section 29 of the Act to settle an industrial dispute. `Industrial dispute' means a dispute relating to an industrial matter, and includes a dispute relating to the engagement, dismissal, or reinstatement of any particular employee or class of employees.

It was submitted by the TPSA that as the Act specifically excludes the terminology of `termination' in its definition of `industrial dispute' and as Mrs. Ryan's services were terminated by the TPSA rather than her being dismissed, then the matter could not properly be heard.

Furthermore Mrs. Ryan's employment was award-free and consequently Section 47(2) of the Industrial Relations Act applies.

Section 47(2) provides as follows:-

`(2) Subject to subsection (3) a term or period of service of employment to which this Division applies that is of indefinite duration is terminable by either party by -

(a) a week's notice, if the wages are payable weekly;

(b) a fortnight's notice, if the wages are payable fortnightly; or

(c) a month's notice in any other case.

    (3) Subsection (2) does not apply in relation to the termination of a term or period of service of employment of an employee on account of his serious and wilful misconduct.'

Comfort was sought from the fact that the contract of employment [pursuant to 47(2)] allowed either party to terminate services by giving, in this instance, two weeks' notice because wages were paid fortnightly. It was said that dismissal is an action taken by an employer to summarily dismiss an employee.

Evidence was produced to demonstrate that Mrs. Ryan's employment was terminated with payment in lieu of notice, together with payment for recreation leave due and owing.

A number of references were also quoted in support of the fundamental contention that services were terminated in accordance with the Act, as well as in accordance with common law and not on the basis of a dismissal.

Mr. Fry argued that jurisdiction does exist. He argued `playing pedantics with words does not really matter'.

It was the FCU's submission that Mrs. Ryan's employment was not award-free, but was covered by the Retail Trades Award through common rule application.

Whether Mrs Ryan was dismissed or had her services terminated was irrelevant, it was argued.

He also relied upon this Commission's Termination, Change and Job Protection Case (Full Bench) of 13 December 1986 which referred specifically to `dismissals or likely dismissals, with or without notice' (P.17).

Decision Concerning Jurisdiction

The written application of the FCU sought settlement of a dispute between the TPSA and the FCU re reinstatement of a member wrongly dismissed.

Thus the dispute involves both a dismissal and a claim for reinstatement.

When invited to explain the dispute in more detail Mr. Fry said it concerned the dismissal of Mrs. Sheila Ryan for what was believed to be no good and valid reason. The FCU was seeking as a first priority the reinstatement of Mrs. Ryan, or alternatively other remedies such as monetary compensation.

The TPSA then responded to that position by challenging jurisdiction in the way that it did.

To my mind jurisdiction is conferred by the Industrial Relations Act 1984, by virtue of Section 29, coupled with the definition of `Industrial Dispute'.

It is clear that the dispute relates to both `dismissal' and `reinstatement', both of which are matters included in the definition of `industrial dispute' contained in 3(1) of the Act.

The services of an employee may be terminated summarily without notice, or terminated by the giving of notice. This is recognised by the wording contained in 47(2) and (3).

47(2) refers to termination by either party by the giving of notice and 47(3) provides that subsection (2) does not apply in relation to the termination of a term or period of service of employment of an employee on account of his serious and wilful misconduct.

If the TPSA argument was correct, then 47(3) would have referred to dismissal, rather than termination. But it did not, and this reinforces my view that whilst dismissal often connotes something more serious than termination the two words are not mutually exclusive in every day industrial relations parlance.

So jurisdiction in this matter can rely equally upon the matters relating to dismissal of a particular employee and a dispute relating to reinstatement of the same employee.

Common law does not bestow or deny jurisdiction in this matter, although the rights of parties are recognised once the merits of the case unfold. A fairly fulsome account of these may be found in CC No. 19 of 1984, which whilst dealt with under the Industrial Relations Act of 1975, still have persuasive effect because Sections 29, 30 and 31 of the present Act are modelled upon the 1975 Act."

Subsequently a series of conferences followed in which I actively encouraged the resolution of the dispute through the processes of conciliation. Whilst that process proved to be somewhat tedious and expansive, eventually commonsense and the goodwill of the parties prevailed.

Eventually on 18 June 1987, I recommended terms of settlement to the parties in the following terms:

"Having presided over a conference between the parties to the dispute and having considered the matters raised, I would strongly recommend to the parties that the following terms be adopted in settlement of the dispute.

1. The termination of the contract of employment of Mrs. Ryan by the T.P.S.A. in no way reflects on her loyalty, honesty, efficiency or capabilities as an employee of the association for the duration of her employment, both as the Northern Branch Secretary and Administrative Assistant.

2. All alleged offences against Mrs. Ryan, particularly as contained in Mr. Evans' letter and its attachment (a) to Mrs. Ryan and dated 20/3/1987, are unequivocally withdrawn on the basis of the response provided by Mrs. Ryan in her letter dated 24/3/1987.

3. The T.P.S.A. undertakes to use its good offices to do whatever it can to obtain alternative employment for Mrs. Ryan and further, to provide her with a suitable reference.

4. In settlement of the retrenchment of employment of Mrs. Ryan the T.P.S.A. agrees to pay to Mrs. Ryan the equivalent of Fifteen (15) weeks redundancy pay.

In adopting the terms of settlement of the dispute I would strongly advise the T.P.S.A. to have regard for the provisions they would expect to apply to their own members who were made redundant in similar circumstances and with particular reference to redundancy payments and entitlements provided for in the Retirement and Death Allowances Act 1925."

At a report back hearing on 7 July 1987, I was advised by both parties that the recommended terms of settlement had been accepted. As a consequence the dispute no longer exists and the file is closed.

 

A. Robinson
DEPUTY PRESIDENT