Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T2943

 

TASMANIAN INDUSTRIAL COMMISSION

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

Federated Miscellaneous Workers Union of Australia
Tasmanian Branch

(T.2943 of 1991)

Video City
(trading as Classic Video Pty Ltd)

 

COMMISSIONER P A IMLACH

29 April 1991

Termination of Employment - harsh, unjust and unreasonable

REASONS FOR DECISION

This was a dispute hearing application made under Section 29 of the Act by the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch (the Union) arising out of the alleged termination of employment of Mrs Yvonne Fitzgerald an employee of Classic Video Pty Ltd, otherwise known as Video City (the Company).

It is as well to note here that Mrs Fitzgerald had been terminated by the Company once before; that event resulted in a previous dispute hearing1 after which I reinstated Mrs Fitzgerald without loss of entitlements.

At the hearing in this matter, Ms P Shelley, who appeared for the Union, claimed that following the decision in T2746 of 1990 on being reinstated and returning to work at Video City, Mrs Fitzgerald had been harassed, victimised and hounded by management and she had been ostracised by some fellow workers allegedly at the instigation of the Managing Director, Mr Terrence Ewing.

Ms Shelley said that Mrs Fitzgerald had not been made redundant (as claimed by management) but had been terminated along with three other employees. She said the redundancy exercise was merely an expediency.

Ms Shelley supported her arguments with the aid of two witnesses and evidence from Mrs Fitzgerald. From the evidence (which I accept) it seems that Mrs Fitzgerald, on her return to work in October 1990, contrary to practice, was required to do excessive amounts of cleaning, she was treated as an outcast and was not kept informed of everyday developments in the business. A manageress endeavoured to obtain evidence from staff against Mrs Fitzgerald allegedly to report back to Mr Ewing. That same manageress attempted apparently with some success to persuade staff to shun Mrs Fitzgerald.

One witness said that she did not join the Union because she knew management would make it very hard for her if she did in the same way as they had for Mrs Fitzgerald.

The latter witness had been an employee in the same store with Mrs Fitzgerald; she said she and one other had been harassed and isolated because of their support for her and both were terminated or made redundant with her on the same day.

It is noteworthy that none of the applicant's evidence as to the discrimination against Mrs Fitzgerald was challenged.

Mr S Clues appeared for the Tasmanian Confederation of Industries (the Confederation) on behalf of the Company. He said that there was no question of the termination of employment of Mrs Fitzgerald for any reason other than redundancy. He advised that Mrs Fitzgerald had been one of five employees made redundant due to a restructuring of the operations of the Company. To assist in his case Mr Clues called Mr Ewing as a witness.

Mr Ewing advised that the reason for the redundancies was a drop in income brought about by a known fall in video movie rentals all over Australia in recent times. As a result all the Company's stores were reviewed as to manning.

He said that Mrs Fitzgerald was incapable of holding the positions of store manager or assistant store manager and therefore, not being a junior, she had to be made redundant as these were the only full-time positions available in practice. There were casual positions advertised and available for Mrs Fitzgerald to apply for, but she had declined to do so.

Mr Clues also called Ms Geraldine Sproule, the personnel officer of the Company, as a witness to confirm his submissions, mainly about the redundancies. A Mr Barry Woods, at that time the Supervisor of the Sandy Bay Store, was also called as a witness. Amongst other things he confirmed that three new positions had been made in the Company, personnel officer, accountant and stores assistant and a car had been provided to go with at least one of them.

At the end of the hearing I reserved my decision, but even after that I urged the parties to reach a settlement prior to the handing down of the decision, but unfortunately they were unable to do so.

I am satisfied that on her return to work on reinstatement following my decision in matter T2746 of 1990, Mrs Fitzgerald was subjected to most unfair and cruel treatment by the management of Video City and regretfully by some of her other fellow employees.

On the other hand I am not satisfied that the restructuring of the Company nor Mrs Fitzgerald's redundancy were justified. There was no evidence to show that the Company was operating at a reduced turnover: the citing of a general national trend2 was not conclusive and there was evidence that the Company had actually increased its staff and expenditure in other areas.

More importantly I was not convinced that Mrs Fitzgerald was unable to fill the positions said to be available, namely store manager and assistant store manager. My attempt to obtain exact detail as to the remaining staff was unsuccessful in that the information which was supplied did not fit the request which was for a list of the present employees by name and their length of service and classification.

In his submissions Mr Clues placed some reliance on the fact that Mrs Fitzgerald had declined an offer of alternative employment and therefore had completed the severance herself. Mr Clues quoted three cases as precedents in support of his contention.

Quite apart from consideration of each of the three cases quoted, I do not accept that the alternative employment was acceptable in that the mention of the possibility of further employment is hardly an offer and moreover the further employment was specified as casual, that is, intermittent and unreliable and in no way comparable with Mrs Fitzgerald's employment up till that time.

In the foregoing context I believe the three cases quoted by Mr Clues do not support his arguments.

  • In the Johnson and Wells case (Print G3179) concerning a dispute in the Metal Industries Award area which was heard by State Industrial Commission Deputy President Robinson (pursuant to Section 44 of the Conciliation and Arbitration Act 1904), the employee was denied a redundancy payment on the grounds that "acceptable alternative employment" had been found for him by the employer. In this case no acceptable alternative employment was offered.

  • In the case of The Amalgamated Metal Workers' Union and Cascade (Compulsory Conference No. 50 of 1982) the then Acting Assistant Chairman of Industrial Boards, Mr Holden, held that the offer of a lower paid position was not a redundancy situation and therefore severance payments were not available. In this case it was not a lower paid position that was offered, but a casual position of the same classification which was offered only as an employment possibility.

  • The (Federal) Termination, Change and Redundancy decision may have provided for an employer to be relieved of the requirement to pay on severance where acceptable alternative employment was made available, but in this case I find no acceptable alternative employment was offered.

This has indeed been a sad, protracted affair and remains so. I propose to reinstate Mrs Fitzgerald without loss of entitlements from the day of her termination, 10 February 1991, because I am well satisfied that she has been treated harshly, unjustly and unreasonably in her employment. This will be of little consolation to Mrs Fitzgerald because of the circumstances, but there being no settlement to the dispute, it seems the only effective and proper option open to me.

Any company ought to be free to restructure itself at any time and in general it is not for me to interfere with that, but in this case I believe I am justified in taking action over one employee's situation because of the significant doubts over the need for restructuring, the seriously unfair treatment of Mrs Fitzgerald and the failure of the Company to prove that no other position was available for her or that others deserved to remain in preference to her.

An order is attached.

 

P A Imlach
COMMISSIONER

Appearances
P Shelley for the Federated Miscellaneous Workers Union of Australia, Tasmanian Branch.
S Clues for the Tasmanian Confederation of Industries.

Date and place of hearing
1991.
Hobart:
February 27.

1 T2746 of 1990
2 Exhibit C2