T4440
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Automotive, Metals and Engineering Union and International Catamarans Tasmania Pty Ltd
Termination of employment - dismissal - alleged harsh, unfair or unjust - medical certificate sick leave and return to duties - evidence of written report as to specific duties - Commission found practice and procedure observed - application dismissed REASONS FOR DECISION This matter concerns an application by the Automotive, Metals and Engineering Union (the Union) for a hearing to settle an industrial dispute pursuant to Section 29 of the Industrial Relations Act, 1984. The dispute was with International Catamarans Tasmania Pty Ltd (the Employer) and concerned the alleged unfair dismissal of an employee and an alleged failure to follow agreed procedures. The employer who is the builder of boats at Hobart denied that it had acted unfairly or that it had failed to observe agreed procedures relating to steps to be taken before dismissing an employee and the matter was put to arbitration for resolution . Both the union and the employer concerned are parties to an agreement registered under Section 55 of the Act and Clause 40 of the "International Catamarans Pty. Ltd. Agreement 1993" provides in part that: "(ii) The employer may dismiss any employee summarily without notice for misconduct, whereupon payment shall be wages up to the time of dismissal only. (iii) Warning Procedure Stage 1 Counselling
Stage 2 Oral Warning
Stage 3 Formal Written Warning
Stage 4 Dismissal
Mr Harding for the union argued that his member, Mr Keith Collis whose classification was fabricator, had been on workers' compensation and was cleared to return to work by his doctor on 9 June 1993. It was alleged that he had been back at work for about an hour when he was dismissed because he had too many accidents. It was said that the employer's action failed to recognise the certification of a medical practitioner that Mr Collis was fit for work, and that in addition the proper warning procedure was not observed. The facts as alleged were denied by the employer and documentary proof of extensive accident reports, counselling and warnings were presented. Mr Hardstaff for the employer assessed that there had been approximately 12 preventable accidents which had involved Mr Collis who had been employed for only 6 months. He had incurred repeated injuries at work and had been extensively counselled and been placed on a rehabilitation programme. A written report, signed by the employee on 27 May 1993 when he incurred back strain specifies that his specific duties were to involve:
He had only been back on the job for an hour following such earlier instruction and his clearance from his doctor when Mr Collis again injured himself as a result of lifting a scaffold. Mr Hardstaff said Mr Collis was not dismissed for the reasons alleged by the union but because of the failure of Mr Collis to observe safe work practices despite repeated instruction and counselling. Reliance was placed upon the employer's duty of care to both Mr Collis and other employees. On the evidence and material before me I dismissed the union application and now publish my reasons. The Act does not provide an automatic right of review of an employers' action in dismissing an employee even though jurisdiction exists for the hearing of such disputes. It is not, in my view, the province of the Commission to simply take over the functions of the employer in the selection or retention of staff and I believe it should not interfere with the employer's prerogative in this respect unless it can be shown that the employer has in some manner abused his ordinary right to hire and fire. In this instance there is no evidence that International Catamarans Tasmania Pty Ltd acted capriciously or failed to treat Mr Collis as fairly as it possibly could in the circumstances which existed. Nothing which emerged during the hearing would support the notion that the employer was motivated towards treating Mr Collis harshly. Rather the evidence showed the employer was at all relevant times supportive of Mr Collis's rehabilitation. Why else would Mr Collis be instructed not to involve himself in overhead duties; not to lift more than 5 kilograms; not to climb, and not to twist? The employer's duty of care to its employees generally is a legitimate reason for the action it took, even though it unfortunately resulted in the termination of services of an employee at a time when jobs are all too scarce. In my view safety at the workplace must be paramount and those who practice it are to be commended rather than criticised.
A Robinson Appearances: Date and Place of Hearing: |