IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

The detail of the dispute notification in this matter reads:

"Employer has unfairly directed member to transfer his place of employment at which he was contracted to work and so his position has become redundant. Union seeks settlement in terms of attachment `A'."

Attachment `A' is a detailed redundancy claim which could be described as a log of claims under the general heading `Redundancy'.

The claim was defined by Mr Illingworth as one that sought six (6) weeks pay for each year of service and the payment of the value of accumulated sick leave credits.

The claim is made on behalf of Mr Tony Lewis (the Employee) who had been employed by Tasmaid Foods Pty Ltd (the Company) for a period in excess of twelve years. The reasons for the Employee's termination are succinctly summarised in a work reference from the Company (Ex. F.C.U. 1) as follows:

"Tasmaid Foods is currently relocating its northern office administration from Launceston to Devonport. While Tony has been offered an alternative position in our Devonport office, he has decided, for personal reasons, that he would prefer to remain in the Launceston area. We will therefore have to retrench Tony from his current position on 7 October 1988."

The above is not disputed by either side and is therefore accepted by me as an accurate statement.

It was also acknowledged by the Federated Clerks Union of Australia, Tasmanian Branch (F.C.U.) that the conditions of transfer offered by the Company did "have a degree of generosity in them". It was therefore not claimed by the F.C.U. that those factors influenced the decision of the Employee not to transfer to Devonport.

It was, however, claimed by the Company that in rejecting the transfer the Employee gave the following reasons:

"Mr Edwards:

The reasons given at the time for the rejection, Mr Commissioner, and these are in the order that they were taken down at the time by Mr Ray Worth, the Manager of the Launceston depot: (1) not enough money. And rolled into that he also indicated that he had a specific need for his spina bifida child to come to Launceston once a month for checkups; (2) he believed the actual move to Devonport would cost him money, at least $1500 or possibly more if his house is slow to sell; and thirdly, he perceived that the new job was not a promotion within the company organisational structure."

(Transcript page 10)

The reasons given by the F.C.U. for the Employee's refusal to accept the transfer are as follows:

"Mr Illingworth:

I wish to outline, sir, the reasons why Mr Lewis found it very difficult, if not impossible to transfer from Launceston to Devonport.

Mr and Mrs Lewis have two children, one of whom, Jason, suffers from spina bifida and because of this crippling disease, Jason is confined to a wheelchair. Jason is 7 years old and attends St Giles school with the expectation of remaining at the school until he is 16. I might add that St Giles is an excellent school for the handicapped and I believe that to remove him from his environment could prove quite traumatic. Mr Lewis did not refuse the transfer without first looking at alternatives for his child. Mr Lewis and his wife made a special trip to Devonport to look at the school for handicapped people.

Although admitting it was quite good, it did not offer what St Giles had to offer for their child ..."

(Transcript pages 3/4)

Other considerations were detailed by Mr Illingworth, all relating to the care and welfare of the handicapped child. It was submitted, that they were the sole reasons why the Employee refused the transfer to Devonport.

Mr Edwards rejected the demands made by the F.C.U. and relied on the Commission's job protection, termination and change decision1 to submit that the claim should be dismissed.

He relied on the following factors to support his submission:

-  on or about 27 June 1988, the Employee was advised that his current position in Launceston would only be available for another 3 months and possibly up to 6 months;

-  he was advised by letter on 9 September that his termination date would be 7 October 1988;

-  the Employee was offered on-going alternative clerical duties in Launceston at a reduced rate of pay;

-  genuine efforts were made by the Company to find the Employee alternative work;

-  time off work, with pay, was allowed the Employee to enable his attendance at job interviews;

-  the Employee was offered a transfer to Devonport with an increase in weekly payment of approximately $20.00 per week:

-  generous transfer and settling-in benefits were offered by the Company;

-  medical and other information provided in the proceedings relating to the Employee's son, was not made available to the Company prior to the Employee's termination.

In addressing the last of the above points Mr Edwards submitted in part:

"Mr Edwards:

I am instructed that at no stage did Mr Lewis make known to the employer that the prime reason for the rejection of the employment package was the disadvantages suffered by his child.

Had this factor been made known at the time and certainly it was mentioned as part of the reasons, but not as a significant part, had this factor been known at the time, it is possible that some other arrangement could have been made."

(Transcript page 26)

and later

"Mr Edwards:

Certainly, before the Lewises' visited Devonport they had mentioned to the Company that one of the areas of concern for them in that regard was the presence or otherwise at the St Paul's School of an occupational therapist.

Upon their return from the visit to St Paul's School, Mr Lewis advised Mr Ray Worth that there was an occupational therapist in attendance and they were well satisfied with the facilities available at the school.

We now question again whether it is reasonable for Mr Lewis to rely on a situation not made known to the company at the relevant time to reject the offer of alternative employment.

In our submission, Mr Commissioner, such conduct is not reasonable, nor can it in our view, be an acceptable situation to the Commission."

(Transcript page 27)

No evidence was called by either side to support or substantiate their respective submissions.

In addressing the merit of this matter I also adopt the sentiments expressed by Mr Edwards when he said:

"Mr Edwards:

...I wouldn't want anyone to misconstrue any comments I might make on this subject as I, personally, along with my client have the utmost sympathy and compassion for Mr and Mrs Lewis in respect to their child."

(Transcript page 26)

However, again as observed by Mr Edwards, I "must view the whole situation from a more clinical perspective and determine whether in the circumstances, as they were known, the employer acted fairly and reasonably".

I make the observation at this point, that generally speaking in cases such as this, it is vital that an employee make known reasons for his/her actions or intentions, so that they can be considered by the employer. To later raise circumstances not known to the employer at the time decisions were made, will result in those matters being discounted by tribunals.

Two decisions of this Commission set the ground rules for the determination of this matter. They are the job protection, termination and change decision of 13 September 1985,2 and a decision of the President dated 10 October 19883. Both were canvassed in some detail by Mr Edwards.

So far as the Full Bench decision of 13 September 1985 is concerned, it is sufficient for the purposes of this decision to indicate that that decision dictates that there is no automatic right to redundancy payments under State awards and that any claims made will succeed or fail on their merits.

In T.1604 of 1988 the President applied a number of tests to the circumstances placed before him and decided that the employer failed those tests and therefore made an order in favour of the Employee.

I accept the tests applied by the President as being appropriate in the context of T.125 of 1985 and relevant to this case as the circumstances are materially the same.

In applying those tests to this case it is not disputed that the Employee was offered:

-  continued employment at Devonport with an increase in wage rates of approximately $20 per week;

-  alternative employment in Launceston but at a reduced rate of pay;

-  generous transfer conditions and housing arrangements.

He was also given:

-  no less than 3½ months notice of his pending transfer or redundancy;

-  time off with pay to attend interviews;

-  other assistance by the Company to find alternative employment;

-  the opportunity to go to Devonport and inspect the Company house and the special school.

There is also no doubt in my mind that the Employee understood the consequences of his non acceptance of one of the alternative positions. I hasten to add that I understand and accept the Employee's reasons for not accepting the lesser position available in Launceston.

Having carefully considered the circumstances of this case, I cannot find that the Company has acted in a harsh, unjust or unreasonable manner. In the absence of such a finding I must refuse the application for a redundancy payment.

In respect to the claim for the pay out of unused sick leave I have no option but to also refuse this claim. No detailed submissions were put to me by either side on this aspect. However, even if they had, such claims cannot succeed in the current industrial and economic climate.

I appreciate the reasons advanced by Mr Illingworth going to the good service and sick leave record of the Employee. These facts were also acknowledged by the Company. However, even the relevant award proscribes such payments being made.

For the reasons given the claims made by the applicant in this matter are refused.

J G King
COMMISSIONER

1 T.125 of 1985
2 T.125 of 1985
3 T.1604 of 1988