T4401
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Mr Graham Maitland Marshall and The Minister administering the Tasmanian State Service Act 1984
Industrial dispute - alleged breach of contract and associated matters - threshold matter - section 29 - whether a valid application was before the Commission by an employee - Commission held that applicant had retired - no longer an employee under the provisions of the act - unable to make application under section 29 - application dismissed - file closed REASONS FOR DECISION Mr Graham Maitland Marshall made application to the President as an employee for a hearing before a Commissioner in respect of an industrial dispute pursuant to Section 29(1) of the Industrial Relations Act 1984 (the Act). Mr Marshall alleged breaches of contract arising from his employment as a teacher with the Education Department as it then was. In his application for a hearing Mr Marshall also alleged what were described as:-
At a hearing on Wednesday 9 June 1993, Mr Marshall made submissions outlining the basis upon which his complaints rested and provided a copy of 3 documents relating to the circumstances associated with his retirement from the Education Department on 13 July 1979 on the grounds of ill health. Mr Marshall asserted that he was poorly advised by the Education Department at the relevant time in relation to the level of pension entitlement he would receive from the Retirement Benefits Fund Board. He also said he felt disillusioned over the fact that some 3 years after his retirement a review of his situation did not result in his re-employment as was his expectation, based upon alleged promises made to him earlier. As a consequence Mr Marshall remained on a pension instead of full salary. Whilst it was not denied by Mr Marshall that he retired from his position as a teacher on 13 July 1979 on the grounds of invalidity, he held to the view that this was to be a temporary arrangement and asserted that: "To this point my position has not been terminated, I have not been dismissed, I have not resigned." and (in)"1967 I was asked and elected to join the permanent teaching staff. I have no reason not to accept that technically that I am still an employee of the Department on leave without pay." The Minister administering the Tasmanian State Service Act 1984 (The Minister) came to the hearing and refuted the assertions made by Mr Marshall as already described, and foreshadowed certain other points of argument. Mr Willingham also offered to provide extensive and detailed information to support the Minister's position. However the Commission required the parties to address the threshold question as to whether or not there was a valid application before the Commission by an employee. Section 29(1) of the Act provides that: "29(1) An organization, employer or employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute that has arisen or the applicant considers is likely to arise." Mr Willingham produced a copy of a letter dated 14 August 1979 from the Education department to Mr Marshall. This letter stated that, among other things, Mr Marshall's retirement had been accepted from the last day on which he was entitled to be paid sick leave, i.e. 13 July 1979. It also said that the Retirement Benefits Fund Board had advised that if retirement occurred on the grounds of ill health Mr Marshall would be admitted to pension with effect from the date of such retirement. And further that the pension would be subject to review in three years' time. Mr Willingham pointed out that this exhibit complemented and was totally consistent with Mr Marshall's own exhibits which in his view demonstrated the fact that Mr Marshall retired from his position with the Education Department for health reasons on 13 July 1979. It was accepted that Mr Marshall's situation was reviewed after he retired, but for what was stated as quite valid reasons his status remained unaltered. In the result Mr Marshall had been continuously in receipt of a retirement pension for the past 14 years. My charter must be to be satisfied that jurisdiction to hear and determine an industrial dispute has been created by the application before me before proceeding to deal with any possible merit issues said to exist. In this instance a great deal must turn upon whether, at the time Mr Marshall lodged an application he was still an employee as referred to in Section 29(1) and defined by the Act. Pertinent to this question also is whether or not Mr Marshall's retirement on 13 July 1979 constituted a termination of his contract of service with the then Education Department. The Concise Oxford Dictionary, sixth edition, includes in its definition of "RETIRE" the following:- "2. Cease from or give up office or profession or employment or candidature. (Cricket) voluntarily terminate or be compelled to suspend one's innings. (retire from the army, from business, on a pension, batsman retired hurt). 3. v.t. Compel (employee etc) to retire." and "RETIREE" is described from the same source as:- "Retiree n. Person who retires from employment etc." In my view that dictionary definition supports the proposition that retirement from employment is synonymous with a resignation of ones position as an employee, which constitutes a termination of services. Subsequent to his resignation on 13 July 1979 Mr Marshall could have been re-engaged as an employee under a new contract of service if circumstances were favourable to both parties. In fact Mr Marshall was able to obtain odd days of relief work from time to time but to me this was indicative only of the creation of a number of separate engagements of short duration and nothing more. However when factors such as Mr Marshall's health and the availability of suitable work for him were reviewed subsequent to his retirement the then Education Department was not able to place him. The relevance of this goes only to the establishment of fact as to whether or not Mr Marshall was an employee at the relevant time, and I make no judgement as to the rights or wrongs of the decision of the previous employer not to re-employ Mr Marshall in his previous capacity as a permanent teacher. I turn now to the question as to whether the Act permits the Commission to entertain an application under Section 29 if such application was made by a "one time" employee as I believe is now the established case so far as Mr Marshall is concerned. Section 29 of the Act authorises a registered organisation, an employer or an employee to apply for a hearing before a Commissioner in respect of an industrial dispute that has arisen or which the applicant considers is likely to arise. "Employee" is defined in Section 3(1) of the Act to mean a private employee or a State employee. A "State employee" is defined in the same Section to mean a person who is employed in an Agency (my emphasis). Since the jurisdiction of the Commission is invoked by an application I can only conclude (in the absence of any provision to the contrary) that the right to jurisdiction can only arise as at the date of the application. And fundamental to the right to invoke jurisdiction is that an applicant be either a registered organisation, an employer, or an employee, so that a person who does not fall into any of those categories at the date of the application has no right so to apply and likewise the Commission has no jurisdiction to entertain an application otherwise made. It follows that whilst Mr Marshall was previously an employee, but who subsequently retired (and as such was no longer an employee) he was not a person empowered by Section 29 to make an application under that section at the relevant time. As Wilson J. said in his judgement in the High Court decision in Slomin v Fellows (1984) 154 CLR 505 at 514, a judgement which was adopted both by Mason J. (now the Chief Justice of the High Court) and Dean J. (now a Senior Judge of the High Court): "the definition of industrial dispute contemplates that a dispute may arise between one employee and his employer but it may be doubted whether such a dispute could arise over the dismissal of the employee after the employment was terminated for the reason that the disputant would no longer be an employee" (the emphasis is mine). The doubt which His Honor expressed was whether or not an industrial dispute could arise after the termination of employment with regard to that termination. There was no qualification to the reason given for that doubt, and the reason given is that which is critical to the matter presently under consideration. In R v The Industrial Commission (1978) 18 SASR 356, King J. at 377-8 was of the view that an industrial dispute could be said to arise in relation to the dismissal of an employee by reason of that dismissal, but that was in the context of the right of an employee organisation to pursue such a dispute. Likewise in the decision of the Full Court of Victoria in Casimento Management Pty Ltd v Garlick (1991) 1 VR 1 Brooking J., who delivered the major judgmenent of the Court, held that under Victorian law as it then stood the Industrial Commission was specifically empowered to hear and determine any question in an industrial dispute as to whether the dismissal or threatened dismissal of an employee would be harsh, unjust or unreasonable. However, that again is not the issue currently for consideration, and in the absence of contrary statutory provision (which appears to exist in some jurisdictions but is not to be found in Tasmania), I am satisfied that S.29 of the Industrial Relations Act does not authorise an application to be made by a former employee in relation to employment which has already been terminated. That is not to say that such an application might not in some circumstances be pursued on behalf of an employee by an employee organisation nor is it to say that an employee, having made an application and thereafter having been dismissed, might not proceed to have the application determined and enjoy the benefits of that determination. For all of these reasons I dismiss Mr Marshall's application for a hearing for want of proper jurisdiction.
A Robinson Appearances: Date and Place of Hearing: |