T3205
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Federated Miscellaneous Workers Union of Australia and Minister Administering the State Service Act 1984
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) following the dismissal of a school groundsman by the Department of Education and the Arts (the Department). The groundsman at the time of the dismissal was employed at the Bellerive Primary School. At the hearings the Minister Administering the State Service Act 1984 (the Minister) representing the Department, strove with evidence to confirm the reasons stated for the dismissal. The Union brought the groundsman himself as a witness and also another who had previously worked at the school (for about eighteen months as a groundsman), not at the time of the dismissed employee, but during the term for the same Principal. The dismissed employee disputed virtually all the reasons given and claimed that the school Principal had told him from the very first that he was not wanted and therefore had been intent on dispensing of his services all along. There was written evidence submitted that the groundsman had been transferred from another school, the Claremont Primary School, because of his poor work performance there. The Principal at Claremont had requested that the groundsman be transferred. The groundsman claimed there had been a personality difference between them and he had initiated the transfer. The second witness for the Union said that during his time at the school the Principal had been a hard taskmaster and had not given consideration to him at all by way of consultation or receiving suggestions. The Minister brought forward two witnesses, the Principal and a landscape supervisor from the Department of Construction. The landscape supervisor had been with the Department for about eighteen months, but had gone there after quite some years experience in horticulture. She said she had a diploma in horticulture (1976) which the Union at the end of the hearing correctly noted was not substantiated. I accept, however, that she was an expert witness. The supervisor, at the request of the Principal, had visited the school on a number of occasions beginning in November 1990 and looked at the areas of the groundsman's work: she wrote a letter to the Principal in March 1991 stating her assessment of the areas for which the groundsman was responsible. She was highly critical of the groundsman's work. Specifically she said that the groundsman had been neglectful in that he:
The supervisor, as a witness, confirmed all these reports and also said that in all her experience around the southern part of the State she had not seen school grounds in such a bad condition. The Principal was called as a witness. He had been twenty years a Principal and of that eight years at the Bellerive Primary School. He also listed matters in which the groundsman had been neglectful. They were:
The Principal said that he had spoken to the groundsman about all these matters many times, but no improvement had occurred. Reports were sent to the Department a number of times over a period of about twelve months seeking assistance with the problem. The Union was also notified of the situation more than once. All these matters were confirmed in detail by the submission of copies of correspondence. These included a letter to the groundsman from the Department, dated 13 February 1991, which listed five main areas of complaint and warned of employment termination if no positive improvement occurred. The Principal confirmed the allegation that right from the start he had expressed his disagreement at the groundsman's appointment. The Principal said in explanation that the groundsman had been transferred into his jurisdiction after an unsatisfactory record at the Claremont Primary School and in a situation where the Principal had been accustomed, up till then, to canvass for applicants and make a decision as to which one he preferred to employ. The Principal said, however, that at that time and during all his subsequent dealings with the groundsman he had always spoken quietly and civilly - there had been no discord. The groundsman's employment was terminated by the Department in a letter dated 18 July 1991. The effective date was Friday 2 August 1991. The Minister submitted that the termination of employment had only taken place after a protracted history of poor performance and neglect by the groundsman despite many counsellings and cautions. The Minister also referred to the threat to safety which had been on-going. The Minister stressed that the Department had taken a responsible approach in proceeding slowly, giving a number of warnings and opportunities. Also a careful record of events had been maintained and the Union had been kept informed. In response the Union submitted that the Principal had not given the groundsman a chance from the beginning. The Principal had evidenced this by keeping careful computer records of the many failures. There was indeed a great deal of record kept of the groundsman's neglect of duty, but I consider it should be noted that in modern industrial relations depending somewhat on the circumstances an employer is required, in order that "fair play" is maintained, to go through a number of steps seeking to remedy a bad situation prior to actually terminating the employment. The Union denied all the allegations against the groundsman and sought to challenge the landscape supervisor as an expert witness. On the basis that I accept the evidence of the Principal and the landscape supervisor I find the evidence against the dismissed groundsman to be overwhelming. I also find that the Principal and the Department made sufficient attempts to counsel and warn the groundsman in an effort to improve his work performance. In all that context I am satisfied that the termination of employment in this case was not harsh, unjust or unreasonable and I therefore decline to interfere with it.
P A Imlach Appearances: Dates and place of hearing: |