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T3153

 

TASMANIAN INDUSTRIAL COMMISSION

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

The Federated Ironworkers' Association of Australia
Tasmanian Branch

(T.3153 of 1991)

and

Pasminco Metals - EZ

 

COMMISSIONER R K GOZZI

HOBART 4 July 1991

Alleged Unfair Dismissal

REASONS FOR DECISION

In this matter The Federated Ironworkers' Association of Australia, Tasmanian Branch (FIA) sought the reinstatement of an employee terminated by Pasminco Metals-EZ (Pasminco) on the basis that the termination was harsh and unjust.

The circumstances were that the dismissed employee was given a reiteration of a final warning for unsatisfactory attendance and alcohol related problems on 8 May 1991. Prior to that date the employee, a Mr C, had some 30 days off in (an employment) period of less than eleven months.

Following the reiteration of the final warning Mr C had time off because of flu. In that period of certificated absence Mr C alleged that he had cut his arm on a broken window whilst at home.

Pasminco contended that Mr C was involved in an altercation at a hotel which resulted in Mr C smashing a window. It was submitted by Mr Nally for Pasminco that this incident demonstrated that Mr C still had a drinking problem leading to time off from work and therefore Pasminco was not prepared to continue to support him any further given the extensive nature of his absence record.

Because of the injury to Mr C's arm he lost a day at work following the removal of stitches which may not in ordinary circumstances have resulted in the Commission upholding the dismissal. The point should be made that in my opinion the issue of a final warning or the reiteration of a final warning for poor attendance as happened here, does not necessarily mean that any subsequent absence has the effect of terminating the contract of employment. Clearly that would be absurd. The circumstances surrounding the absence should be the determining factor in assessing whether or not a final warning had been violated.

However in this matter I supported the decision of Pasminco because of the blatant lies of Mr C and the carriage given to them by Ms N his fiancée. Notwithstanding sworn evidence willingly given by Mr C and Ms N it was able to be demonstrated beyond question that they deliberately and seriously misled the Commission and Mrs Smyth who represented Mr C on behalf of the FIA.

The lies and fabrications were steadfastly adhered to by Mr C and Ms N in an initial hearing held on Friday 28 June 1991 and for the entire three-hour hearing held on Monday 1 July 1991. Prior to the luncheon adjournment it became crystal clear that Mr C and Ms N could no longer evade the truth, both of them then provided the Commission with the facts which accorded with the contention of Pasminco.

In all of the circumstances I decided to close this file with the agreement of the FIA and Pasminco.

 

R K Gozzi
COMMISSIONER

Appearances:
Mrs E Smyth for The Federated Ironworkers' Association of Australia, Tasmanian Branch.
Mr M Nally with Mr C Jeffries for Pasminco Metals-EZ.

Date and Place of Hearing:
1991
Hobart
June 28
July 1