TASMANIAN INDUSTRIAL COMMISSION

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

Australian Liquor, Hospitality and Miscellaneous Workers Union -
Tasmanian Branch
(T.5240 of 1994)

and

Classic Video Pty Ltd
(trading as Video City)

Industrial dispute - suspension of employee under Clause 15(g) of award - alleged non-observance of Clause 30 - Sick Leave - suspension found harsh - rescinded

REASONS FOR DECISION

This application was lodged by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the union), pursuant to section 29 of the Industrial Relations Act 1984, for the purpose of settling a dispute with Classic Video Pty Ltd (trading as Video City) (the employer).

The dispute arose after Mr Scott William Hennessy (the employee) was notified by the employer that he was suspended for one week in accordance with Clause 15(g) of the Miscellaneous Workers Award and the suspension was to take effect from Saturday, 22 October, 1994, and continue until Friday, 28 October, 1994, inclusive.

That provision reads as follows:

"15. CONTRACT OF EMPLOYMENT

(g)  The employer, in the event of misconduct, may suspend an employee without pay. The maximum period of suspension shall be one week. Should the employee not agree to the suspension the Union may refer the matter to the Tasmanian Industrial Commission. If, upon examination, the Tasmanian Industrial Commission forms the view that the suspension was harsh or unjust, it may vary the term or rescind the suspension.

Prior to the suspension the matter shall be discussed with an official of the Union or written notification shall be provided to the Union. Where written means of notifying the employer's intention is used, the employer shall not implement the suspension for twenty-four hours after the Union would reasonably have been expected to receive such notification.

PROVIDED THAT in exceptional circumstances, the suspension may be implemented immediately".

On Wednesday, 19 October, 1994, at approximately 5.00pm the employee was required to see Mr T Ewing, the Managing Director of Classic Video Pty Ltd, who advised him of the suspension which was to take effect from 22 October, 1994. Thursday, 20 October, 1994, (an award holiday for the Hobart Show) and Friday, 21 October, 1994, were the employee's rostered days off.

The employer alleges that the misconduct of the employee centred around the employee not being able to perform his duties due to illness and that the timing of the illness, that is, immediately prior to or immediately after the employee's rostered days off. This had occurred on 12 of his last 13 absences.

The employer also held the view that the employee's continued practice of seeking medical certificates when they were not necessary, amounted to misconduct.

The union was notified of the suspension by Mr Ewing, after the close of business on 19 October, 1994. However, as 20 October, 1994, was a holiday the union did not receive the notification until Friday, 21 October, 1994.

The union maintains it tried to make contact with Mr Ewing, but to no avail, and on 24 October 1994, lodged an application with the Commission pursuant to section 29 of the Act to settle a dispute in accordance with Clause 15(g) of the award. This application was amended at the commencement of the hearing on Wednesday, 2 November, 1994.

Arising out of the hearing on Tuesday, 8 November, 1994, certain facts were established  -

1.  that the employee's sick leave record was consistent with that stated in the notice of suspension;

2.  at no time during the course of his employment, other than 5.00pm on 19 October, 1994, was the employee questioned or counselled about his sick leave absences;

3.  the employer has not questioned the validity or veracity of the doctors' certificates;

4.  on the very few occasions that sick leave certificates were not presented, the employee was never asked by the employer to produce them or sign any declaration supporting his absence. Indeed in notification of suspension sent to the union the employer stated that he was of the view that the employee's "continued conduct of seeking medical certificates when they are not necessary amounts to misconduct";

5.  the sick leave absences taken by the employee were not in excess of those to which he was entitled to receive under the award;

In relation to this aspect of the application I can understand why the employer felt frustrated when the employee absented himself from work due to illness, on 12 out of 13 occasions being either the day before or the day after two rostered days off.

On the surface, the pattern of sick leave and the employee's practice of going to different medical practitioners for medical certificates seems unusual.

My task, nevertheless, in determining this application, is to decide whether or not the employee's sick leave patterns and the seeking of medical certificates by him, constitute misconduct.

Under the Miscellaneous Workers Award it is only open to the employer to suspend an employee without pay for a maximum period of one week, if there has been misconduct on the part of the employee.

After considering the evidence and the facts earlier mentioned, I have not been able to arrive at the conclusion that the employee's actions constitute misconduct. That being the case I believe the suspension was harsh and I determine that it should be rescinded and the employee be paid his normal weekly wage for the period he was suspended. That payment should be made to the employee on the next pay day after the date of this decision.

During the course of the hearing Mr Ewing did indicate to the Commission that he was prepared to abide by any decision that emanated from the hearing, therefore, I see no need to issue an Order at this time.

If, in the unlikely event this decision is not implemented, then the Commission would be prepared to hear submissions from the applicant in support of an Order being issued in the terms I have determined.

As part of this application, a second, but no less important issue, was in dispute. That was the method adopted by the employer of paying employees their sick leave entitlements. It was stated that employees who were absent from work on account of illness did not receive their payment for that day (if it was a sick leave day) until some 6 months after the event. There was little evidence of this alleged practice, however, I would have to say that if the allegation is correct, and I make no finding on that point, then prime facie the employer may be acting contrary to the award.

This matter is adjourned sine die.

R J Watling
COMMISSIONER

Appearances:
Mr K O'Brien for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch.
Mr T Ewing for Classic Video Pty Ltd (trading as Video City).

Date and place of hearing:
1994
Nov 2 & 8
Hobart