T5173
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 AWU-FIME Amalgamated Union, Tasmania Branch and Petuna Pty Ltd
Termination of employment REASONS FOR DECISION In my decision of 23 October 1995 in this matter I rejected the employer's submission that I should dismiss the union's application on behalf of Mrs Perla Cruse, and I determined that the union should be given one final opportunity to detail the nature of its claim. In that decision the Australian Workers' Union (the union) was asked to provide the Commission and the employer with a summary of the circumstances which it considered constituted the alleged unfair dismissal of Mrs Cruse by the management of Petuna Pty Ltd and to state in detail what remedy was sought if the allegation could be sustained. By the appointed time the Commission received a letter from a Joint Branch Secretary of the union in the following terms:
When the hearing reconvened on 1 November 1995, the employer's representative, Mr Targett, repeated his earlier submission that the claim should be dismissed for lack of jurisdiction. He submitted that the specific detail required by the Commission in its decision of 23 October 1995 and provided by the union on 27 October 1995 was the "factual basis" upon which the Commission had to determine whether an industrial dispute existed. It was submitted that since there was no demand for the restoration of the employer/employee relationship there was no industrial dispute. Mr Targett supported this proposition by reference to the Newtown Timber & Hardware case1. He also contended that it was not open to the Commission to simply make a finding that Mrs Cruse had been unfairly dismissed without ordering that something be done to remedy the situation. He submitted that the Tasmanian Industrial Commission was not a body which could provide declaratory relief. He argued that an assessment by the Commission as to the fairness or otherwise of a dismissal was merely a finding with which to "clothe" the Commission with the jurisdiction to exercise its powers under section 31 of the Industrial Relations Act. Mr Targett submitted that since the union had not asked the Commission to exercise the powers available to it under section 31, an industrial dispute, for the purposes of the Act, did not exist. Mr Glisson, for the AWU, submitted that the reference in his letter to "no other remedy" being sought meant that no monetary compensation was being asked for, but if the Commission made a determination that Mrs Cruse had been unfairly dismissed she should be "automatically returned to the status of an employee". He further submitted that if the Commission determined the dismissal to be unfair and the employer did not immediately reinstate Mrs Cruse, there was "clear potential for an industrial dispute between the parties". This he said would give rise to an application pursuant to section 29 of the Act. Mr Targett objected to what he considered to be another change to the claim by the AWU. He argued that the most recent change in the position of the union was not an amendment to the claim as provided for in the Act but was a new application. He again submitted that the application be dismissed. The employer, indeed any party against whom a claim is made, is entitled to know before proceedings commence precisely what is being claimed by the applicant. In this case the applicant shifted position on its claim regularly to accommodate submissions by the employer to such an extent that I found it necessary to give the union one final opportunity to document its claim. After having provided, in writing, its formal claim, the union attempted again to change direction once it had heard argument from the other side. I cannot accept, as Mr Glisson attempted to persuade me, that the letter was sufficient to inform the Commission and the employer that what was really being sought was the reinstatement of Mrs Cruse. The respondent should not have to read into the words a meaning that is not clearly evident from the words used. A claim for reinstatement of a dismissed employee is a normal application in this jurisdiction and if reinstatement is not referred to in the documentation supporting the claim the employer is entitled to come to the conclusion that reinstatement is not being sought. I agree with Mr Targett's submission that the Commission should not permit the union to change the remedy being sought in its claim, particularly in view of the union's equivocation on this point during the hearing of 17 October 1994 and the Commission's direction that the union should state in detail what remedy was being sought. Accordingly I accept the employer's submission that the letter of 27 October 1995 (effectively the union's claim) contains the material upon which I must decide whether or not an industrial dispute exists. As a result I consider the claim does not seek from the Commission an order that Mrs Cruse be reinstated or re-employed; it seeks simply a finding that she has been unfairly dismissed; no other remedy has been sought. Therefore I am satisfied that the remedy sought in the union's claim is limited to a request for a finding by the Commission that the dismissal of Mrs Cruse was unfair. I have considered the argument advanced by Mr Targett that having regard to the Supreme Court decision he referred to, there exists no industrial dispute and I am satisfied that the reasons given in that case can be applied to the circumstances of this matter. The definition of "industrial dispute" reads as follows:
The union's application alleges unfair dismissal which to my mind is clearly included in the expression "termination of employment" referred to in paragraph (a). However, using the reasons of Zeeman J at page 12 of his decision, there is an implied requirement that a "dispute have some industrial character before a dispute which literally falls within it [he was referring to the old paragraph (a) of the definition of industrial dispute] does fall within it". As I understand the reasoning of Zeeman J, the industrial character of a dispute dealing with the dismissal of an employee requires as one of its features that in the absence of any continuing employer/employee relationship there should be a demand for the restoration of such a relationship and, in addition, the involvement in the dispute of existing employees or an employee organisation. In this matter the employee organisation is present; it is not known whether or not existing employees have been or are involved in the matter; but the other part of the equation is missing, that is there is no continuing employer/employee relationship and there is no demand for the reinstatement of such a relationship. Accordingly, applying the Court's ruling, there is no industrial dispute for the purposes of the Act. I am assuming that the reasoning in relation to the need for this industrial character to be present continues to apply even though the definition of industrial dispute has been amended. Therefore in the circumstances I must dismiss the application for lack of jurisdiction. In addition I consider that the Commission as constituted has no power to make the finding sought by the applicant in a manner which would satisfy the requirements of section 31, which provides the mechanism for settling an industrial dispute. Section 31(1) is as follows; the other subsections are not directly relevant to the point.
It seems to me that a finding that a dismissal is unfair cannot be made as an order under section 31, as the Commission is not being asked to direct that something be done or to direct that some action be taken for the purpose of settling the industrial dispute. If that is so the jurisdiction of the Commission is again called into question in this case. For the purposes of the record I must state that I am disappointed that I have had to reach the conclusion that the union's application be dismissed as the facts giving rise to the dismissal of Mrs Cruse, presuming that she was formally dismissed, have not been tested. However, given the final, formal details of the claim for which the union had been given every opportunity to develop and the recent Supreme Court decision which has clarified the jurisdiction of the Commission in matters concerning the dismissal of employees, I believe no other decision was possible.
F D Westwood Appearances: Date and place of hearing: 1 Newtown Timber & Hardware Pty Ltd v. Gurr and Gozzi Supreme Court of Tasmania (Full Court) A44/1995 |