T3045
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Federated Miscellaneous Workers Union of Australia Video City
Termination of Employment - harsh, unjust and unreasonable REASONS FOR DECISION This was an application for the hearing of an industrial dispute made under Section 29 of the Act by The Federated Miscellaneous Workers Union of Australia, Tasmanian Branch (the Union) arising out of the termination of employment of a Miss Anne Goodman by Classic Video Pty Ltd, otherwise known as Video City (the Company). The facts were that Miss Goodman was employed by the Company for close on twelve months as a video library attendant. At the time of the termination Miss Goodman worked at the Company's Eastlands store in Hobart. On Saturday 20 April 1991 the Manager of the store, Mr Wade Stewart, at 6.55 pm (5 minutes before the end of the shift) in his office told Miss Goodman that he had an "appraisal" form to present her with. It was submitted (and I accept) that Miss Goodman exclaimed "F...ing oath, not another one of those things!". It was further submitted that she used the first mentioned objectionable two words expression twice more during the interview. Miss Goodman later apologised to Mr Stewart for the bad language, but the damage had been done, the incident had been reported to the Company's Personnel Officer, Mrs Geraldine Sproule, who on being telephoned, arranged to meet with Miss Goodman in the store at 9.45 am on Wednesday 24 April 1991. Between the time of the incident and the time arranged for Miss Goodman to meet with the Personnel Officer, clear arrangements were made between the Union and the Personnel Officer for the Union to be represented when Miss Goodman met with the Personnel Officer. Unfortunately on the day, at the appointed time, when the Union representative, Mr G Adams appeared at the Store's front door, he was refused entrance on the basis of the Store's policy that only authorised persons were permitted on the premises outside of opening hours, in this case not until 10.00 am. This deliberate confusion, caused by the employer, had the effect of denying Miss Goodman the Union's representation at the crucial time of her employment termination which was given to Miss Goodman by the Personnel officer in the Store between 9.45 am and 10.00 am. The other factors in this case were the "appraisal" form system implemented by the Company and Miss Goodman's work history as sought to be established by means of that system. The word "appraisal" was placed at the heading of a form which was used by the Company as a disciplinary warning notice: I am in no doubt that both the Company management and employees had no illusions that the forms were warning notices despite the unfortunate use of the word "appraisal" as a heading at the top. It seems it was the management's practice each time it wished to record a warning or some disciplinary action against an employee to complete the "appraisal" form with all the details of the allegations against the employee plus the details of the management's "suggested outcome" which could on occasion include a dismissal warning. The employee was required, after the contents of the "appraisal" form had been advised, to sign it. At the hearing the Confederation claimed that there was scope for comments to be added after the event, and indeed one such additional comment (by the supervisor) had been attached to one of the exhibits. My clear impression from the evidence was that the warning sessions for which the "appraisal" forms were prepared and used did not deviate very much from the prepared format and the employee was not expected to play a specifically participatory role at all. In other words there was little chance for the employee to make his or her defence. In this case union representation was deliberately thwarted. The elements of Miss Goodman's alleged poor work performance, as gauged from the Confederation's evidence were her unsatisfactory attitude to customers, failure on some occasions to follow up late video returns and unacceptable clothing. These matters were brought to Miss Goodman's attention on four separate occasions (by means of the "appraisal" forms system). Because the system was used in such a rigid and one-sided fashion and Miss Goodman was deliberately denied representation on the occasion when all this was brought to a head and her employment was terminated, I propose to set aside that part of the evidence as unsubstantiated or insufficient. In this context I would have expected the Company in the circumstances, to have taken pains to ensure that my clear recommendations in three earlier related decisions were carefully adhered to in all similar cases; I said, "I further recommend that, in the event the Company deems it necessary to caution or reprimand Mrs ........ in the future, an official of the Union be present as a witness." I do not criticise the Company for attempting to record warnings given to its employees, but I do criticise the lack of skill and understanding involved in the warnings given to Miss Goodman especially the omission of the opportunity for representation. As to the use of objectionable language by Miss Goodman, I find that it was reprehensible, but not such as to warrant cessation of employment in all the circumstances. Miss Goodman used the language in a private room in front of her supervisor, but importantly as I interpret the evidence, it was not directed specifically at the supervisor, it was more in exclamation. I accept Ms Shelley's submission that these days (regrettably) such language is commonplace in literature, theatres and the media (she might have added school playgrounds and video-hire stores which latter operate machines playing some videos on site freely using bad language and those same videos are hired for use to the public by the stores: this is of my own knowledge). Moreover, the supervisor admitted in evidence that he had himself used objectionable language in the store on occasion. Mr Clues claimed that the language used was unacceptable to the community, unfortunately the acquiescence of the community in the areas mentioned contradicts his claim. It is interesting to note, however, that no one at the hearing condoned or accepted the use of the objectionable language. Miss Goodman herself, after the incident, returned and apologised to her supervisor for using it in front of him. In all the above-mentioned circumstances for an employee to be disciplined over the use of bad language I believe it would be necessary for the employer to have issued prior instructions clearly to each and every employee that such language was forbidden and would not be tolerated. In this case it seems no clear directions were given. It follows from what I have said that I am not prepared to endorse Miss Goodman's employment termination: I will order that she be re-instated in her employment as on and from the day of her termination without loss of entitlements. An order is attached.
P A Imlach Appearances: Date and place of hearing: |