T4456
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Musicians' Union of Australia, Hobart Branch and The Dean of St David's Cathedral
Termination of Employment INTERIM DECISION This dispute involves the termination of the employment of Mr I. Burk from his position of Organist and Master of the Choristers at St David's Cathedral, Hobart, effective from 17 September 1992. On 22 June 1993 the Musicians' Union of Australia, Hobart Branch, made application for a hearing on the matter, alleging that Mr Burk's dismissal was unfair and Mr Burk's reinstatement was sought. In addition, the union sought payment for Mr Burk based on rates and conditions contained in the Musicians Award. The application came on for hearing on 9 July 1993 before Commissioner Gozzi who found it necessary to request that the matter be reassigned to another member of the Commission. The matter commenced before me on 16 July 1993 when the parties were referred into conference for the purpose of exploring the possibility of a mutually acceptable resolution to the dispute. Discussions between the parties continued for some weeks until it was reported that they were still some distance apart in terms of a financial settlement, and that the reinstatement of Mr Burk, from the employer's point of view, was not negotiable. When the hearing resumed the employer challenged the use of the Musicians Award to determine the entitlement of Mr Burk and the matter was further adjourned to allow the interpretation processes provided for under Section 43 of the Act to take place. Regardless of the position regarding the relevance of the Musicians Award, (the interpretation decision was under appeal at the time), the dispute hearing continued for the purpose of determining whether or not the dismissal of Mr Burk had been harsh, unjust or unfair. For the union, Mr Shelverton informed the Commission that Mr Burk had been appointed as Organist and Master of Choristers at St David's Anglican Cathedral, Hobart, in October 1980; in evidence later Mr Burk said he commenced work with the Cathedral on 1 January 1981. At least from March 1987 Mr Burk's employment had been on a regular basis of 24.1/2 hours per week and he was to receive a fee for extra services and additional fees for wedding and funeral services. His rate of pay, which seems to have varied annually, was estimated for the year 1992/93 to be $20,5001. On 17 September 1992, at 9.15 a.m., Mr Burk had kept an appointment to meet the Dean, the Reverend K. N. Reardon, and in the presence of the Treasurer of the Cathedral Council, Mr Warner, had been handed a letter which, amongst other things, advised Mr Burk that as from the receipt of the letter the position of Organist and Master of the Choristers was abolished and that his employment was terminated. No payment in lieu of notice was made, but one week's salary for each year of service was provided as a redundancy payout, together with an allowance in lieu of long service leave, a superannuation payment, and the option to continue to reside in one of the Church's cottages subject to a leasing agreement and rental at full market value. In evidence Mr Burk said he had a "regular and close working relationship" with the Dean. He had been going about his normal duties and preparing music for the rest of the year prior to the day of his dismissal. He said that at the meeting with the Dean and the Treasurer, the Dean had said he had taken this decision over a "period of time", and had involved the headmaster of the Hutchins School and also the Bishop. Mr Burk was most concerned that his departure was not mentioned in the Cathedral newsletter and that he had been unable to get his private belongings "out of the organ" on the next day as the lock had been changed. He said that there had never been any suggestion that his professional work with the church was in any way under a cloud. He was greatly concerned when, subsequent to his dismissal, he learned that the Dean had led other people to believe that there were other very serious reasons why he should have been dismissed. He felt this had had an effect on his reputation and his subsequent ability to get "proper employment". Mr Burk said that he had given the most positive and the longest report ever to the Cathedral annual general meeting about the state of the music and the choir. In his words "things were really looking up". He foresaw a few problems but the music was being performed "at a very, very high level". He had received a "considerable amount of money" from a member of the congregation "to do something in the choir area" and, just before the dismissal, had received a letter from the Bishop saying how marvellous the music had been for the sesquicentenary celebrations", and a letter from the Dean congratulating him on the music for Bishop Stone's installation. Mr Burk said he thought the dismissal had been carried out in a very callous, unchristian and uncaring manner. In cross-examination Mr Burk said he was not aware that suggestions concerning restructuring of staff, including the position of organist at the Cathedral, had been put by the Cathedral Council to the Diocesan Council in February 1992. In response to Mr O'Farrell he acknowledged that at the meeting with the Dean and Mr Warner no other reason was given for his dismissal apart from the statement that the position was made redundant for financial reasons. Miss Catherine Finney who was Secretary to the Cathedral Council at the time of the dismissal, testified and tendered a statutory declaration to the effect that the Dean, when questioned during the meeting of Council on 16 September 1992, as to the need to terminate Mr Burk's employment so suddenly had replied that financial reasons were not the only reasons for the dismissal, and not the main ones, and that there were serious other reasons for Mr Burk's dismissal. Miss Finney agreed with Mr O'Farrell that the Dean had said that Mr Burk had done nothing morally wrong. Miss Finney also said that during that meeting the Treasurer, Mr Warner, had told Council that Mr Burk had been on the point of instant dismissal several times, and in addition, the Dean had said that a letter of instant dismissal had been drafted at one point. Miss Finney drew the Commission's attention to the fact that for the financial year 1991/92 there had been an operating profit of $5556 and a total surplus transferred to the Accumulation Account of $13,805. She said that in August 1992 when the accounts were presented to Council, the Treasurer had reported that everything was going well. Miss Finney also referred the Commission to summaries of income and expenditure for the Cathedral for the months of August and September 1992, and speculated that the reason for a drop in the offerings received by the Cathedral was related to the congregation's disapproval of the treatment of Mr Burk. In response to questions from Mr O'Farrell, Miss Finney said that in her opinion there appeared to be a significant number of the congregation members who were concerned at the dismissal of Mr Burk, a significant number who had no opinion on the dismissal, and a small number who were actively supportive of the Dean's actions. Ms Susan Williams who was at the time of the dismissal an elector of the Cathedral and Chair of the Cathedral Arts Committee, testified that at a meeting of the Cathedral Song School on 17 September 1992 the Dean had said there were serious reasons other than financial considerations for Mr Burk being made redundant. The Dean, when asked for more information, would not disclose the other reasons to the meeting as he said they were of a confidential nature between employer and employee. Ms Williams said that as Chair of the Arts Committee she had been involved in the organisation and co-ordination of the Cathedral's public musical events, additional to church services, and in particular had been negotiating a concert of Christmas music involving the Tasmanian Symphony Orchestra, Mr Burk, and the Cathedral Choir with the possibility of it being recorded by the ABC. She said that this program had been discussed at a Committee meeting on 13 September 1992 at which the Dean and Mr Burk had been present and the Dean had given no indication that Mr Burk would not be able to carry through this project. Mr Shelverton contended that Mr Burk's dismissal was unjust. He said Mr Burk had received no warning of his redundancy. He had received no counselling before or after his termination. Despite allegations about his work performance, Mr Burk had been given no opportunity to respond to the criticisms of him. It was submitted that the treatment of Mr Burk in the process of restructuring and his consequential abrupt departure was harsh and damaging to his professional and personal reputation, and potentially to his future employment. The Commission was told that Mr Burk had been unable to find suitable alternative employment. Mr Shelverton claimed that the responsibilities of the Cathedral Council as set out in the Parish Administration Ordinance 1986 and in the Cathedral Ordinance, December 1987, "concerning financial management and the giving of advice" to the Dean had been bypassed. The Dean had presented the restructuring proposal to Council on 16 September 1992 "as a fait accompli". Mr Shelverton said no alternatives were ever considered by the Council and no need for restructuring had been announced to Council before that date. It was alleged that only a small saving had resulted from the restructuring. For the employer, Mr O'Farrell introduced a number of witnesses, the first being Mr William Haas who was a member of the Cathedral Council at 16 September 1992, and at the time of giving evidence in this matter was Dean's Warden and Treasurer of the Council. In evidence he said that he had accepted without question Dean Reardon's reasons for restructuring the Cathedral staff. As he understood the Dean, the proposal to make redundant the position of Organist and Master of the Choristers would save the Cathedral some $18,000 to $19,000 per annum. The proposal had been put at the first Council meeting (16 September 1992) he had attended and as the Cathedral was "losing money", it seemed logical to him. He said the Dean had been subjected to intense questioning from some members of Council who regarded the dismissal as a sacking rather than as the result of a position being made redundant. Dean Reardon had told that meeting that Mr Burk had done nothing "immoral or illegal". Mr Haas said the Dean had made a remark which led him to believe that there had been some discontent with Mr Burk's services in the past, but he could not remember any suggestion that there had been other serious reasons for his dismissal. He felt there may have been a conflict of personalities between the Dean and Mr Burk. Mr John Warner who was Treasurer of the Council at the time of Mr Burk's dismissal, until June 1993, gave evidence in which he claimed there was a saving of approximately $30,000 annually to the Cathedral by making the position of Organist and Master of the Choristers redundant. Further, that there would be no detriment to the operation of the Cathedral's functions as Mr Burk's work would be handled by a full time member of the Cathedral clergy. He said there were no reasons other than financial for the dismissal of Mr Burk. He was satisfied that all reasonable steps had been taken in effecting the dismissal. Mr Warner said there were other occasions on which the Dean would have been justified in dismissing Mr Burk, but that he (the Dean) could not bring himself to do it. Mr Warner said that Mr Burk had been made aware of one of those occasions. He said that counselling had been offered to Mr Burk. Evidence was given by the current Dean, the Reverend Stuart Blackler, and the Precentor, the Reverend David O'Neill, the precentor who had taken over the duties of Organist and Master of the Choristers. Both witnesses attested to matters which mainly occurred after Mr Burk's dismissal and as a result I do not regard the evidence as influential in my deliberations. Mr O'Farrell maintained that Mr Burk's dismissal was due entirely to financial imperatives, more specifically that in the Cathedral's financial situation as at September 1992, expenditure had to be cut down. He said that reorganisation of the staff had been considered a possibility in February 1992 when the report of the Diocesan Council had been prepared. The "precise idea for restructuring" had occurred after the Dean advertised for a Precentor in June 1992, even though the Cathedral had believed it had to do something about its expenditure throughout 1992 and certainly after May 1992. When it became apparent that one of the candidates for the position of Precentor was an "extremely accomplished organist" the possibility of restructuring "became a reality", Mr O'Farrell said. Mr O'Farrell explained that the Cathedral financially was in a parlous situation and that a reasonable result at the close of the financial year on 30 June 1992 had been achieved solely because of a decision by the Diocesan Council to remit "some $33500 or thereabouts" of the Cathedral's pledge to the Diocese, and increases in rentals received for Cathedral properties had occurred which included a one-off component. As a result what had been a projected deficit of $44,000 was converted to an operating surplus of $5,556.63. In response to a question, Mr O'Farrell confirmed that it had been a common practice over the years for the Cathedral to operate on a deficit budget basis and it is clear that has occurred since 1991/92. By letter dated 17 August 1992, the then Dean had offered the position of Precentor to the Reverend O'Neill and informed him that the duties of Precentor would include those of Organist and Master of the Choristers; in his letter the Dean expressed the hope that he (O'Neill) could take up the position by 19 October 1992 or thereabouts, which he did. The appointment was confirmed as a matter of form, I take it, by the new Dean, the Reverend Blackler, by letter on 19 February 1993. Mr O'Farrell refuted suggestions that offerings to the Cathedral had fallen dramatically due to Mr Burk's dismissal and submitted that the downturn had resulted from a reduction in envelope donors due to the "economic situation". In support of the method of restructuring used, Mr O'Farrell submitted that the prime objective of the Cathedral, indeed of any church, was for the care of its parishioners and that if Mr Burk was to be retained one of the two full-time priests on the church's establishment would have to be let go. That is, either the Dean or the Precentor. As a result of the restructuring, it was asserted that the Cathedral now had the services of 1.1/2 priests and an organist/choirmaster. Notwithstanding the statutory declarations and evidence of Miss Finney and Ms Susan Williams, and the statutory declaration tendered from Mrs Elspeth Richings which all attested to the belief that the Dean had said there were serious other reasons for dismissing Mr Burk, Mr O'Farrell submitted that the evidence of the Treasurer, Mr Warner, clearly showed that there was no reason for Mr Burk's termination other than the need to effect financial savings. Mr O'Farrell said:
He argued further that the payment of an amount of money as a redundancy payment rather than the seven days notice as provided for in the Musicians Award was indicative of the reason for Mr Burk's dismissal. Mr O'Farrell submitted that the disaffection with the decision to terminate which was claimed to have developed amongst some members of the congregation and choir, should not be taken into account by the Commission. The views of those members reflected what was a political dispute within the church and that should not be confused with the industrial dispute which was before the Commission. Before the employer embarked on addressing what might be an appropriate remedy if the Commission found Mr Burk's dismissal to be harsh, unjust or unfair, I suggested that it might be more appropriate if that latter decision was made first and the result conveyed to the parties. This was designed to enable the parties to consider their positions in light of the findings and possibly to provide a further opportunity for a mutually agreeable settlement to be reached. Both parties indicated their willingness to allow that process to take place. In dealing with this matter I have relied on the fact that the Dean of St David's Cathedral appears to regard himself, and is regarded by others, as the employer of staff of the Cathedral Council, notwithstanding the fact the Council approves funds for the purpose of paying staff. The Dean's employer status seems to be accepted both by Council and by staff. It is a matter of record that the Dean terminated the employment of Mr Burk and no challenge was made to his legal capacity to do that. The Dean's decision was approved by the Cathedral Council at its meeting on 16 September 19922. At a special meeting of the Council on 1 October 1992, Council "supported the Dean's restructuring of staff"3. A motion to rescind that decision was put to the Council meeting of 28 October 1992 and it was lost 6 votes to 34. Given those facts the Council obviously supported the Dean's actions. The issue of the so called "political dispute" within the church over whether or not Mr Burk should have been dismissed has been set to one side. I am satisfied that these events have no bearing on whether or not the dismissal was harsh, unjust or unfair. Similarly, questions relating to the savings to be effected and the income to be lost due to Mr Burk's dismissal have been set to one side. The submissions and material put to the Commission in support of Mr Burk's position, which I consider to be relevant, can be distilled as follows:
From the employer's point of view the relevant arguments seem to be that:
I am satisfied that the Dean and the Cathedral Council may have thought there were good and cogent reasons for restructuring its small staff given the continuing likelihood of further operating losses being incurred each year. I am also satisfied that the availability of a competent person to take over the duties of Organist and Master of the Choristers contributed significantly to the implementation of the restructuring. However, it is clear that the employer had little or no regard for Mr Burk as an employee, given the timing and manner of the termination of his services. The "parlous" financial situation of the Cathedral had been known by the then Treasurer and the Dean at least as early as February 1992, when the paper for the Diocesan Council had been prepared and the options became clearer when the availability of Reverend O'Neill was established. But no attempt was made to inform Mr Burk of the potential for change in staffing arrangements until the day of his dismissal. The abruptness of this approach to an employee of 12 years service cannot be excused, particularly given the time available to management in which to develop its objectives. He was given no notice and little recognition for his past service or his capacity to find alternative employment. As to the allegations of serious other reasons for Mr Burk's dismissal, the employer was at pains to stress that no such reasons existed and if they had in the past they certainly were not taken into account at this point. However the evidence and statutory declarations to the effect that Dean Reardon had indicated that there were other reasons which could be brought forward to substantiate a dismissal to my mind is most significant. In her evidence and statutory declaration5, Miss Finney said that at the Council meeting on 16 September 1992 when she asked the Dean for the reasons for Mr Burk's dismissal he suggested there were serious other reasons for Mr Burk's dismissal, and that is supported by the statutory declaration sworn by Mrs E Richings tendered as Exhibit S.13. In her letter of 23 September 1992 to the Dean and other Council members which was attached to her declaration, Mrs Richings expressed her regret at being involved as a member of Council in the dismissal. Amongst other things she wrote:
That letter was written in respect of the Council meeting of 16 September 1992 and the claim that the Dean and others said there was "strong evidence to dismiss Mr Burk on the spot" appears not to have been answered by the Dean. Mr O'Farrell relied entirely on the Mr Warner's assertion that there were no other reasons that had been taken into account at the time of the dismissal, and Mr Haas said he could not recall such a statement. In addition, both Miss Finney and Ms Williams attested to their belief that at the meeting involving Lay Clerks, some Choir parents and others, on the evening of 17 September 1992, Dean Reardon said there were other serious reasons for Mr Burk's dismissal. Mr Warner was not present at that meeting. In these circumstances I accept that the Dean had alluded to other serious reasons for Mr Burk's dismissal, at least at the meeting of Lay Clerks and others, and it is clear that Mr Burk was given no opportunity to answer any of these so-called other serious reasons which would justify his dismissal. Given the abrupt nature of Mr Burk's dismissal, the denial of any opportunity to respond to the claims that there were other serious reasons for his dismissal, the lack of concern for Mr Burk as a long-standing employee, and the potential damage to his professional reputation, I find that Mr Burk was dismissed from his employment with St. David's Cathedral in a harsh, unjust and unfair manner. The matter will be listed for continuation of hearing at the request of either party for the purpose of determining an appropriate remedy.
F. D. Westwood Appearances: Date and Place of Hearing: 1 Exhibit S.10 |