TASMANIAN INDUSTRIAL COMMISSION

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

Bakery Employees' and Salesmens' Federation of Australia
Tasmanian Branch
(T.3063 of 1991)

and

Bass Bakery, Devonport

Termination of employment

REASONS FOR DECISION

This was a dispute hearing application made under Section 29 of the Act by the Bakery Employees' and Salesmens' Federation of Australia, Tasmanian Branch (the Union) as a result of the dismissal of an employee of Bass Bakery Pty Ltd, Devonport (the Company).

At the hearing, Mr P Nielsen appeared on behalf of the Union representing Mr G J Hall, the dismissed employee.

Mr Nielsen produced a number of exhibits in support of his contention that the termination of Mr Hall's employment was harsh, unjust and unfair. His main submissions may be listed as follows:

• Mr Hall had worked in a number of bakeries interstate for some years before commencing work with the Company in January 1988, first on a part-time basis and then full-time from March the same year.

• Mr Hall had performed all the tasks required of a trade baker over a period of 5 years 7 months and, if able to continue his employment with the Company, was in hopes of gaining "Recognition of Tradesperson Status" under the Industrial and Commercial Training Act 1985.

• Medical evidence showed that Mr Hall had an allergic condition related to the bread dough and if he was not required to work in "the dough room" at the bakery he would be able to continue in his employment.

• When Mr Hall had advised the Company of his condition and the necessity for him to be given work outside "the dough room" not only was he refused, but also he was unfairly dismissed immediately. (I note that Mr Hall was paid in lieu of notice at the time.)

Mr T Edwards appeared for the Tasmanian Confederation of Industries (the Confederation) representing the Company and in response to the Union's arguments he listed the following points:

• Mr Hall was suffering from a condition known as "bakers asthma" which has been widely accepted for many, many years as common amongst bakery employees. Unfortunately employees who contracted such a condition became more chronically affected the longer they stayed in the industry. In support of this point Mr Edwards produced an exhibit which was a copy of a report on a recent medical case study of the problem.

• The Union's evidence was disputed in that the report relied upon by the Company concluded that (with the exception of the wrapping and slicing functions) no area of a bakery was considered to be altogether clear of the substances causing the bakers' asthma.

• With the aid of another exhibit Mr Edwards pointed out that for each year of his employment with the Company Mr Hall had taken all, if not nearly all the sick leave due to him. On the information available to the employer some of those days were directly attributable to the "bakers' asthma" problem, but the evidence in the Union's exhibits made it clear that some of Mr Hall's previously unspecified reasons were actually for the "bakers' asthma" problem also. All this evidence showed that Mr Hall had built up an allergy.

• Mr Hall was counselled at a late stage, but understandably since the employer was not clearly notified of Mr Hall's condition until 23 April 1991.

• The Company at all times had a duty of care towards its employees; in this case it was to protect the employee from an exacerbation of his condition. The Company had a responsibility to take reasonable care for the safety (including health) of its employees. All these duties were to be assessed on an objective basis. The Company was bound to provide a safe working environment, unfortunately for Mr Hall (and others suffering from the same condition) it was impossible to provide such an environment in a bakery since the causes of the condition by their very nature were inseparable from the work involved. In all the circumstances mentioned the Company would be found to be negligent if it kept the employee working in the bakery once it became aware of his condition. The Company submitted that a transfer into another part of the bakery would not satisfy the duty of care.

• The Union's reference to the claim for trade status was rejected as not relevant in that the only duties open to the employee as a result of his inability to work in the dough room were not trade related: those duties that were trade related entailed direct contact with the causes of the allergic condition.

During the course of submissions the significance of the Workers Compensation Act was raised, but I believe it fair to say that all parties accepted it did not bear on this matter. On the other hand I do not believe this application prejudices a claim by Mr Hall under that Act.

On balance I accept the Confederation's submissions and the evidence that Mr Hall was suffering from an allergic condition brought about by contact with the ingredients in the bread making process. I accept that further exposure in the environment of a bakery would more than likely exacerbate Mr Hall's condition and render the Company liable for negligence. In such circumstances I consider the Company's decision to terminate Mr Hall's employment to be reasonable and not harsh or unfair. I believe it would be wise for Mr Hall not to seek further employment in a bakery.

It is unfortunate indeed that Mr Hall not be able to continue in his bakery employment and proceed to a position which would enable him to apply for tradesman status, but in the ultimate, that is a corollary of this decision not a deciding factor in it.

I decline to interfere with the Company's decision.

P A Imlach
COMMISSIONER

Appearances:
P Nielsen with C Shirley for the Bakery Employees' and Salesmens' Federation of Australia, Tasmanian Branch.
T Edwards with J Packham for the Tasmanian Confederation of Industries

Date and place of hearing:
1991.
Burnie:
May 23.