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Tasmanian Industrial Commission

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T5494

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

AWU-FIME AMALGAMATED UNION, TASMANIA BRANCH
(T5494 of 1995)

and

CENTRAL WESTERN ENTERPRISES INC

 

COMMISSIONER P A IMLACH

19 July 1995

Industrial dispute - alleged unfair dismissal

REASONS FOR DECISION

This was an application for a dispute hearing made under Section 29 of the Industrial Relations Act 1984 by the AWU-FIME Amalgamated Union, Tasmania Branch (the Union).

The dispute concerned the alleged unfair dismissal of Mr David Lovell, an employee of Central Western Enterprises Inc (the Employer). The Employer was a non-profit organisation set up in Queenstown and operating mostly in the Western area of the State. It negotiated with employers generally and arranged work for its employees.

The Employer had arranged work for Mr Lovell as a nipper operator for the Renison Mine near Zeehan. Mr Lovell worked at the Renison Mine for almost eight months, from 1 September 1994 to 2 May 1995; he worked on a four-day, ten-hour shift roster and during the period carried out a substantial amount of overtime work.

On 2 May 1995, the Renison Mine told Mr Lovell that he was not required to work on that day even though he had been so rostered. Later that same day the Employer advised Mr Lovell that there was no more work at the Renison Mine for him: he was paid an extra day's pay.

The Union submitted that Mr Lovell had been unfairly dismissed in that he had been dismissed virtually at a minute's notice, his job had been taken up by another employee, he had not been cautioned as to his work and he had not been trained for work beyond that of a nipper operator (the base category) when he should have been.

The Employer in response pointed out that Mr Lovell had been employed at all times on a casual basis and had been paid as such by the hour; he had always been paid a flat rate with no penalties, overtime pay nor annual leave, even though he worked shift work. Mr Lovell knew from the start that he had no expectation of on-going employment. The Employer produced a copy of a Commonwealth Government form headed `Employment Declaration Form' which included Mr Lovell's signature and an indication that he had been employed on a casual basis.

The Employer said there was no difference between the arrangements for Mr Lovell and those made for a typist or stenographer working for various employers through an agency.

It was also claimed by the Employer that work had been available again recently for Mr Lovell but, he could not be contacted.

The Employer pointed out that its claim to be the employer had not been disputed, but the Union was trying nevertheless, unreasonably, to persuade the Commission to direct another employer to hold and maintain Mr Lovell in employment.

The Union quoted a precedent case supporting its contention that this was an unreasonable dismissal of a casual employee.

The Union sought re-instatement without loss of pay for Mr Lovell or a suitable payment in lieu of that. The Union also advised that Mr Lovell had been away when the messages as to additional work had arrived but, he nevertheless was still seeking work.

The Union also submitted that it was too simplistic to rely solely on the casual nature of Mr Lovell's employment when regard was had to the regular shift work and the time involved.

DECISION

I am not prepared to accede to the Union's claims in this matter. The undisputed fact was that Mr Lovell was employed as a casual worker by the Employer and I am not prepared to interfere simply because the work was no longer made available; if the Renison Mine had been the employer the situation may have been different, but it wasn't.

I accept the Employer's argument that the Commission ought not direct another employer to keep Mr Lovell employed.

As to the precedent for unreasonable dismissal of a casual employee, the circumstances of this case were different in that the Employer was an agent whilst the work involved was performed for another organisation not the Employer. It may have been that the actions of the Renison Mine would not have borne scrutiny but, the Employer cannot be held responsible for that possibility. I do not accept that the factors of the nature of Mr Lovell's employment and the length of time he was employed at Renison, (which in my view, was not particularly long in the circumstances) were such as to convince me to uphold the Union's application.

The application is dismissed and I so order.

 

P A Imlach
COMMISSIONER

Appearances:
Mr G Cooper for AWU-FIME Amalgamated Union, Tasmania Branch
Mr S Knott with Mr L Weymouth for Central Western Enterprises Inc

Dates and place of hearing:
1995
July 3
Hobart