T3428
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Metals and Engineering Workers' Union and Pasminco Mining - Rosebery
Alleged wrongful dismissal REASONS FOR DECISION In this matter the Metals and Engineering Workers' Union made application for the reinstatement of an employee dismissed by Pasminco Mining-Rosebery (Pasminco). The circumstances were that the dismissed employee absented himself from work for 1 1/4 hours. When he was first spotted at a local hotel by a Pasminco management employee there was a brief exchange and it was left to the dismissed employee's "common sense" to return to work. He did not do so as he was again sighted by the same Pasminco management employee later that evening. Subsequently the employee did return to work. The next day no immediate action was taken against the employee but he was instructed to attend the Mill Manager's office where his absence was further discussed with him. At that stage the employee was given an option to resign or in the alternative he would be dismissed. He chose to resign which in the circumstances can be construed as a constructive dismissal. At the hearing I was informed that the employee did not seek to in some way rectify or explain his absence when he first commenced work on the day after his unauthorised absence. I was left with the distinct impression from the sworn evidence presented on behalf of Pasminco that had the employee offered to have the lost time deducted from his pay that this may have mitigated in his favour. Also it was made clear to the Commission that a final warning issued to the employee some 12 months earlier had no bearing on the termination. From what transpired at the hearing I was left in no doubt that in hindsight the course of action which led to the dismissal of the employee may have been different had there been opportunity at the outset for wider consultation at plant level; particularly with site industrial relations management and the appropriate union representative. Against that background I now confirm the decision given in transcript. That is, whilst the Commission does not condone the unauthorised absence, I considered, having regard to the requirements of the Commission to act according to "equity, good conscience and the merits of the case" (Section 20[1] of the Industrial Relations Act 1984) that the dismissal was unreasonable. Accordingly the employee is to be reinstated, as indicated at the hearing in this matter, from 23 September 1991. Payment made to him in lieu of notice is to be refunded. The period between the date of his termination on 7 September and the reinstatement is to be regarded as constituting continuous employment for the purposes of entitlement accrual only. The employee should also be counselled that his absence without leave will be regarded as a final warning by the Commission. His employment record should be noted in that way. The final warning should be made in the presence of the employee's union representative.
R.K. Gozzi Appearances: Date and Place of Hearing: |