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T5127 - 27 July

 

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

 

DEPUTY PRESIDENT A ROBINSON

HOBART 27 July 1994

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

REASONS FOR DECISION

This matter concerns an application by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the Union) for a hearing to settle an industrial dispute pursuant to Section 29(1) of the Industrial Relations Act 1994.

The dispute was between the Union and Burrell's Hytech Cleaning and concerned the alleged harsh, unjust and unreasonable dismissal of Mrs D Grice who was employed as a cleaner at the University of Tasmania. The Union's application (as amended) sought that Mrs Grice be reinstated without loss of pay, or in the alternative a sum of money be paid to her.

The Commission initially encouraged settlement of the dispute through the use of conciliatory mechanisms but it became evident that private discussions and negotiation which had preceded the hearing had proven to be fruitless and both parties indicated they preferred to go straight to arbitration.

As a consequence the Union prosecuted its case through the production of sworn evidence from both Mrs Grice, the employee concerned, and another employee, Mrs M Wighton, and formal submissions.

The employer, represented by the Tasmanian Chamber of Commerce and Industry Limited, denied that the dismissal was harsh, unjust and unreasonable and its case in this regard was supported by the sworn testimony of three witnesses; exhibits; and formal submissions.

Mrs Grice commenced her employment with Burrell's Hytech Cleaning on 9 February 1994 as a part-time cleaner, working from 5.30am to 7.30am each day from Monday to Friday. She had some limited experience in the same capacity with a previous employer but that work was not necessarily to the same high standard as was required by the University of Tasmania and her most recent employer.

This employee underwent an initial period of on-the-job training under the direction of the employer's chief training officer, Mrs Jenson.

In each of a number of separate areas in which Mrs Grice performed her duties the work allocated had to be performed within a set time and to the required standard.

The employer alleged that Mrs Grices' work performance was unsatisfactory and she received two verbal warnings and one written warning prior to 23 May 1994 when she was dismissed following a certain incident. It was stated by the employer that she had also been warned on 23 May immediately prior to her dismissal.

The warnings given were to the effect that the employer considered Mrs Grices' work to be not up to the standard required and that if after further retraining the work was still not up to standard then her employment would have to be terminated.

The Union was of the view that the work of this employee was up to the required standard given the unrealistic time frames set. This was supported by the sworn testimony of Mrs Grice and another employee, Mrs M Wighton, who had 15 years experience as a cleaner at the University of Tasmania site and was also the Health and Safety Officer and acting union representative at the time of Mrs Grices' dismissal. The Union said it was not uncommon for some employees to put in extra free time in order to complete all tasks set and to the standard required.

The employer disputed the Union's contention that the tasks set could not be satisfactorily completed on time by a competent cleaner.

Apart from the fact that it was customary for employees who arrive late to make up time subsequently I am satisfied on all of the evidence that it was not unknown for some employees to work beyond the allotted time to make sure the standard of cleaning required was in fact achieved.

The Union expressed the view that the employer resented the fact that Mrs Grice was too outspoken and took exception to the fact that she complained of difficulties associated with poor equipment, such as a large trolley used to transport rubbish and an inefficient vacuum cleaner which also had to be shared by a number of employees. The suggestion was that this was a factor in her dismissal.

The employer denied that exception was taken to such matters being raised. It was acknowledged that equipment needed repairs from time to time but, it was said that these items were corrected promptly.

Whilst Mrs Grice testified that a supervisor had reprimanded her for complaining about the trolley in front of other employees this was also denied by the supervisor concerned when she gave sworn evidence.

The employer's case included allegations that Mrs Grice had what was described as an attitude problem; that she talked a lot and made excuses when matters were drawn to her attention.

Emphasis was given by the employer to the fact that Mrs Grice was the only employee who needed retraining and that despite this her work did not improve. She was also given ample warning before finally being dismissed.

It was the strong position of the Union that apart from anything else Mrs Grice was unfairly treated in that she was denied proper union representation on the day that she was dismissed. The employer refused to allow the acting union representative to be present when matters were to be discussed with Mrs Grice on Monday 23 May 1994 on the basis that the circumstances at the time the request was made did not justify such presence.

From the time Mrs Grice received a final written warning on 9 May 1994 that she could expect to be dismissed if the employer was still not satisfied with the standard of her work, she was clearly anxious to avoid losing her job. As a consequence she contacted her Union and sought its support. She also apparently kept detailed records and documented aspects of her work requirements in her defence, although this was not produced in evidence.

On Friday 20 May she was again reprimanded for things allegedly left undone but which she claimed to be either untrue or criticism of an unjust nature. In apparent desperation she made numerous telephone calls over the weekend in an effort to have a representative of her Union present on Monday morning, 23 May 1994, because she expected that a final assessment of her work would be made at that time and her job hinged on the outcome.

Mrs Marlene Wighton saw Mr Burrell, the Owner/Manager of Burrell's Hytech Cleaning at approximately 6.45am on the morning of 23 May 1994 and requested to be present when Mrs Grices' work was inspected but was refused permission by Mr Burrell. Then Mr Burrell went to the area in which Mrs Grice was located in the University complex and had a conversation with her in the company of supervisor, Mrs Shirley Young.

Mrs Grice was told that Mrs Wighton was refused permission to be present as it was not her place to judge if the work performed was of sufficient standard.

The Commission was given conflicting reports as to what occurred immediately prior to Mrs Grices' dismissal .

Mrs Grices' version of events was that in telling her that Mrs Young would not be present Mr Burrell was angry and shouted at her:

"How dare you involve the Union!"

This was denied by Mr Burrell and Mrs Young, as was the allegation that Mr Burrell raised his voice. Mrs Grice said that Mrs Young went in and out of the door to the room at the time of the conversation, but this too was also disputed.

Mrs Grice further alleged that Mr Burrell said that she was causing him a problem; that he said she was on five (5) days notice, then when shown a lengthy letter she had written said she was on one (1) minutes notice.

However Mr Burrell disagreed with this version of events and testified that he had given one (1) weeks notice to Mrs Grice because of continued poor work performance.

There had been a discussion involving all three persons concerning whether or not allocated work could be performed within the limits of the times fixed and Mrs Grice had alleged that Mrs Young had conceded on another occasion that another cleaner had also been unable to complete the necessary work on time.

When Mrs Young denied that she had ever said such a thing, Mrs Grice admitted she had accused the other of "telling fibs". According to Mr Burrell and Mrs Young, Mrs Grice actually said:

"You are a bloody liar."

and it is these words which not only contributed to Mrs Grices' dismissal but caused her services to be terminated immediately, but with one week's pay in lieu of notice.

Decision

The dispute as notified concerned an allegation of a harsh, unjust and unreasonable dismissal of an employee by an employer.

The Act gives the Commission jurisdiction to deal with this type of dispute by virtue of the definition of "industrial matter" which includes a dispute relating to -

"The engagement, dismissal, or reinstatement of any particular employee or class of employee."

[3(1)]

Whilst the Act is silent as to the criteria for deciding disputes of the present kind there is precedent for principles established in other matters to be followed and the parties concerned were given every opportunity to address the relevance of such decided cases to this particular dispute.

In the Tasmaid Foods Case,1 which also involved the alleged unfair dismissal of an employee, I accepted the relevance of the general principles which ought to be accepted to guide the Commission in such cases as laid down in the Tipping Case2.

Again following those principles I need to decide whether the applicant has discharged the onus which rests with it of satisfying me that this is a proper case for the Commission's intervention and, inter alia, whether there has or has not been oppression, injustice or unfair dealing on the part of the employer towards the employee. Whilst there are many aspects of the present matter in which the facts were disputed by witnesses under oath, there is one fundamental factor which is freely admitted by all concerned and which is therefore beyond question.

In this regard the established facts are that Mrs Grice, the employee whose continued employment was under dire threat, had made it abundantly clear that she wanted her employer to allow a representative of her registered trade union to be present when she most needed that presence. Her employer knew of Mrs Grices' request and denied it. His primary explanation was that it was not the function of Mrs Wighton, the acting union representative, to judge the standard of work required of another. Mr Burrell also said Mrs Wighton had her own work to do and that he was not aware of the fact that she was the acting union representative. This latter statement contradicts very strong evidence to the contrary and I reject it on those grounds.

Whilst the employer may have the right to be the final arbiter of matters affecting the product of his business I am of the view that procedural fairness must be followed before a decision is made to dismiss an employee. In this instance I find that Mrs Grice should have been entitled to be assisted by another person when defending herself against allegations regarding her conduct or performance liable to result in the termination of her employment.

Because Mrs Grice was denied this right I find that the termination of her employment was unfair.

However given all of the circumstances peculiar to this case I am of the view that the employment relationship between Mrs Grice and her former employer has irretrievably broken down and is unlikely to be restored if I ordered reinstatement. Accordingly I propose to resume the hearing to allow the parties to address that part of the application which went to a remedy of settling the dispute other than reinstatement.

The hearing date will be separately notified.

 

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

1 T No 4346 of 1993, 12 May 1993
2 McKean J, in Western Suburbs District Ambulance Committee v Tipping (1957): Australian Law Guide, 56 AR 273