TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Australian Liquor, Hospitality and Miscellaneous Workers Union
Tasmanian Branch
(T.5127 of 1994)

and

Burrell's Hytech Cleaning

Industrial dispute - alleged harsh, unjust and unreasonable dismissal of an employee

REASONS FOR DECISION

On 27 July 1994 "Reasons for Decision" were handed down in relation to an application for a hearing by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the Union) to settle an industrial dispute in which it alleged Burrell's Hytech Cleaning had harshly, unjustly and unreasonably dismissed Mrs Grice who had been employed by this particular company in the capacity of a cleaner.

I decided that Mrs Grice had not been afforded procedural fairness in that she had knowingly been denied the opportunity of being assisted, through the presence of another person of her choice, when defending herself against allegations regarding her conduct or performance liable to result in the termination of her employment. Accordingly, I found that in the circumstances which existed the termination of Mrs Grice was unfair. However, since I had decided not to order reinstatement as a remedy to settle this particular industrial dispute the parties were invited to address that part of the application which went to the payment of an appropriate sum of money if reinstatement was refused.

Mrs Grice commenced her employment with Burrell's Hytech Cleaning as a part-time cleaner on 9 February 1994 and was dismissed on 23 May 1994 when she was given one week's pay. Her hours of work were two (2) per day, Monday to Friday and she received $123.00 per week for ten (10) hours worked.

Following the failure of private negotiations to achieve a resolution the dispute application was made for a hearing by the Union on 4 July 1994, and whilst the Commission was prepared to bring the matter on earlier a hearing was held on 19 July to meet the convenience of the parties concerned. Subsequently my "Reasons for Decision" were issued on 27 July, 1994.

When the hearing resumed on 16 August I gave formal notice to the parties that I intended to take into account the "Reasons for Decision"1 of the Full Bench issued on 30 May 1994 in the Gunn/Fahan appeal matter as it related to power to award a sum of money. The parties were then afforded the opportunity of being heard in relation to that matter.

In that matter the Full Bench had said at page 8, that, inter alia:

"We are of the view that the Commission has jurisdiction to order the payment of a sum of money for the purpose of preventing or settling an industrial dispute."

and later

"The power given by section 31(1) is to direct by order in writing that anything be done or any action be taken for the purpose of preventing or settling an industrial dispute. That power is unrestricted in its terms, and in our view should not be read down as excluding the power to order that a payment or payments of money be made where such a payment can properly be regarded by a Commissioner as appropriate for the purpose of preventing or settling the dispute."

The Full Bench also made the distinction between the Commission's jurisdiction to award a sum of money for the purpose of preventing or settling an industrial dispute and the fact that the Commission is not empowered to award money in the nature of damages at common law.

It follows that whilst I am able to order an appropriate sum of money in settlement of this particular dispute I am constrained to the extent that I may not exceed jurisdictional boundaries which were so adequately expressed by the Full Bench in the Gunn/Fahan matter.

The circumstances of the present dispute have already been described in sufficient detail in my "Reasons for Decision" of 17 July 1994 and I do not see the need to repeat them here. Suffice is to say, that the denial to an employee of procedural fairness prior to the taking of a decision to dismiss is not a matter which can be treated lightly.

The employer owed to the employee an obligation to act with both substantial and procedural fairness. In the circumstances of this particular industrial dispute that obligation translated into a number of specific steps which the employer was obliged to take:

1.  He was obliged to conduct a reasonable investigation to ascertain what view he should take of the particular circumstances which might be taken into account in deciding to dismiss Mrs Grice.

2.  He was required to formulate what it was alleged this employee had done or failed to do.

3.  The employer was obliged to put the allegations of commission or omission to his employee in the presence, as requested, of a nominated representative who was available and willing to be present. In this case strength should have been given to the fact the nominated employee representative was acting as a representative of an organisation of employees which was registered under Part V of the Industrial Relations Act, 1984.

4.  Procedural fairness required that the employer give to the employee and her nominated agent a fair opportunity to be heard as to those allegations.

5.  There was an obligation to give the employee, through her representative if necessary, the opportunity to be heard on whether she should be dismissed if she was to be regarded as guilty. It is possible that there were matters not directly connected with the alleged offences which might if they were raised and considered, have mitigated the penalty.

I am of the view that in assessing what money amount should be awarded in this case the particular circumstances should be viewed as a whole, and whilst I am grateful to the parties for their reference to amounts awarded in other decided cases concerning unfair dismissals, each case must be decided on individual merit.

In this instance the employee concerned had been employed for less than four (4) months and was only employed on a part-time basis. The employer's case for minimising the size of any payment is also supported by the fact that a number of prior warnings had been issued and that further training to do the job satisfactorily was provided. Furthermore, Mrs Grice was given one week's pay on termination.

Nevertheless the circumstances and manner of dismissal on the final day of employment have been found to have been unfair and the dispute can now best be settled by the payment of a sum of money which is appropriate to the circumstances.

I regard the Union's preferred claim for eleven week's pay to be excessive, as is its fall back claim of eight weeks.

Mrs Grice was given payment of one week's salary on termination, and this needs to be taken into account.

Having regard for all of the circumstances and after giving due consideration to the respective views expressed at both hearings it is my recommendation that in settlement of this dispute Burrell's Hytech Cleaning pay to Mrs Grice a further sum equal to four (4) week's ordinary pay. This sum to be in addition to any amount found not to have been already credited to Mrs Grice as the employer's occupational superannuation contribution, as agreed by the parties.

I further recommend that the payment(s) due be paid to Mrs Grice not later than 21 days after the date of this decision.

The file will be kept open until such time as confirmation of receipt of all payments due is received.

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr K O'Brien for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch
Mr M Watson for the Tasmanian Chamber of Commerce and Industry Limited with Mr C Burrell

Date and Place of Hearing:
1994
Hobart
July 19
August 16

1 T No 4774 of 1993