TASMANIAN INDUSTRIAL COMMISSION

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

Tasmanian Catholic Education Employees Association
(T.3007 of 1991)

and

St Cuthberts Primary School

Wages

REASONS FOR DECISION

This dispute is brought to the Commission by way of application pursuant to Section 29 of the Act.

The parties concerned are covered by the terms of a registered industrial agreement and since there is contained in such agreement a "reference of Disputes" clause, that too is relied upon to grant jurisdiction to the Commission.

Very few of the relevant facts which gave rise to the claim for approximately seven weeks pay are not disputed. As a result I must make findings in this regard.

I am satisfied on the evidence and material submitted that:

• For the two years 1998 and 1989 Mr Tony Deayton was employed as a teacher by St Cuthberts School in Lindisfarne.

• At the end of 1989 Mr Deayton resigned his position to travel overseas.

• On or about 14 October 1990, the Principle of St Cuthberts telephoned Mr Deayton in London and told him he could be re-employed as a full-time class teacher at the commencement of the 1991 school year.

• Mr Deayton accepted the offer of re-employment.

• The Principle told Mr Deayton the return to school date for pupils of St Cuthberts was Wednesday 13 February 1991 and he, with other teachers, would be required in the week prior to this date.

• Mr Deayton said his air bookings were for him to return to Hobart on Friday February 15.

• The Principle conveyed to Mr Deayton that he should alter these arrangements and start in the week prior to 13 February.

• Mr Deayton arrived back in Hobart in the mid to late afternoon on Friday 15 February, was not well and went straight home. He was still unwell on Monday 18th and Tuesday 19th February but called in to the school briefly in the afternoon of 19 February, prior to commencing full duties on Wednesday 20 February 1991.

Mr Deayton was treated by the school as having commenced employment on Monday 18 February by virtue of the fact that he was paid sick leave payment for 18 and 19 February.

The Tasmanian Catholic Education Employees Association (TCEEA) rely upon provisions contained in the Catholic Education Agreement of November 1986 which provides in 12.9 that, inter alia:

"Any teacher who commences service prior to the conclusion of the first week of term one shall be deemed to have commenced from the first day of January".

Reliance is also placed upon provisions contained in the Catholic Education Second 3% Agreement of June 1990, which provides under clause 8, Teachers Day of Attendance that, inter alia:

"8.1 The first pupil day shall be the second Tuesday in February except

(a) schools which have years 11 and 12 students may require them to attend on the Monday before the relevant Tuesday, even where that Tuesday is a public holiday.

(b) in the South, because that Tuesday is the Regatta Day holiday, the first pupil day shall be Wednesday which follows the second Tuesday in February.

(c) on the North-West Coast it is necessary for some schools to begin one week later.

In addition the TCEEA relied upon provision 13.5 of the Agreement, falling under the heading "Types of Appointment", which concludes by saying that:

"Employees upon appointment, will be informed in writing of their conditions of employment".

There is also reliance upon the general notion of industrial fairness and the personal circumstances of Mr Deayton at the relevant time.

In my view Mr Deayton had an obligation to be ready, willing and available to commence work at the time required by the employer. That obligation existed notwithstanding any alleged travel difficulties which arose between 14 October 1990 and February 1991.

I believe Mr Deayton knew pupils were to commence the school year on 13 February and knew he was required to be there during the prior week.

However, notwithstanding this Mr Deayton displayed little commitment to meeting the employers' requirement in relation to the commencement date of his employment.

The registered agreement applying clearly states in 12.7 that:

"Teachers are required to attend school for a maximum of five days over and above the dates specified as school days."

Therefore the school's requirement that Mr Deayton commence duties the week before 13 February 1991 was soundly based, and the employee had no discretion in deciding otherwise.

I believe the first week of term one so far as teachers at St Cuthberts are concerned was the week prior to 13 February. But Mr Deayton did not attend prior to the conclusion of the first week of term one, which, on the most liberal of interpretations, concluded on 13 February. And if, for the purpose of this exercise, we conclude that he intended to start on 15 February, he still would not have satisfied the requirement of 12.9, earlier quoted.

On the very strictest of tests therefore Mr Deayton has no claim to payment from 1 January 1991.

On the other hand however there are some factors which should not in fairness be overlooked.

There were difficulties associated with the parties being able to properly communicate; the "request" of the Principle for Mr Deayton to alter his bookings to return to Tasmania should have possibly been expressed in stronger terms; Mr Deayton's travel arrangements were affected by the Middle East crisis; and he was unwell at the relevant time.

Accordingly, without prejudice to future arrangements, I recommend that Mr Deayton be paid an ex-gratia amount equalling two weeks ordinary pay.

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr P Bevilacqua with Mr T Deayton and Mr C Deayton for Tasmanian Catholic Education Employees Association.
Mr W J Fitzgerald with Fr J Williams and Mrs M Morse for Tasmanian Catholic Education Centre.

Date and Place of Hearing:
Hobart
1991
April 15