T5500
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 AUSTRALIAN MUNICIPAL ADMINISTRATIVE and JIREH HOUSE
Industrial dispute - severance payment - order made. REASONS FOR DECISION This was an application for a dispute hearing made under Section 29 of the Industrial Relations Act 1984 by the Australian Municipal, Administrative and Clerical Services Union (the Union). The Union was in dispute with Jireh House Association Incorporated (Jireh House) over the termination of the employment of Mrs Val Wiseman who had been made redundant. In particular, the parties were in dispute as to the quantum of the redundancy payment due to Mrs Wiseman. Jireh House is a non-profit organisation which operates refuges for women victims of domestic violence: it started up in the early 1980's and has one main house at Kingston but also operates two other houses and two units. In 1994 Jireh House commenced a review of its operations aimed at a complete re-structuring to cope with the need for greater efficiency and the expected introduction of the new Welfare Services Award. As a result of the re-structuring, all employment positions at Jireh House were declared vacant and a new list of positions was made up. All new positions, except that of Manager, were advertised internally first and, for whatever good reason, all those employed just prior to the re-structuring, except Mrs Wiseman, were able to be re-employed under the new arrangements. The final position of each party in this dispute was different to that which had been adopted earlier: it is sufficient, I believe, to say that ultimately the Union sought a redundancy payment for Mrs Wiseman equivalent to two weeks pay for each year of service. Jireh House, through the Tasmanian Chamber of Commerce and Industry (the Chamber) was opposed to any payment on the grounds of incapacity to pay and also that Mrs Wiseman had failed to apply for any of the new re-structured positions advertised. The Chamber claimed that Mrs Wiseman had been offered one particular position (admitted as the last and the least) but had refused it. Mrs Wiseman flatly denied this last claim. Mrs Wiseman had been employed by Jireh House for 12 years and had carried out most of the varied responsibilities and work associated with its operations. Prior to the re-structuring she had worked each week generally 23 hours ordinary day work and 15 hours shift work (roughly meaning all hours outside of day work 8:00 am - 5:00 pm Monday to Friday). To confirm its submission the Chamber brought as a witness Mrs Wendy Quinn, who was a Board member, the Secretary and the Public Officer for Jireh House. Mrs Quinn explained the history and work of Jireh House and details of its financial arrangements. The Chamber produced as an exhibit a copy of Jireh House's income and expenditure statement for the period 30 June 1994 to 30 April 1995 (ten months). Jireh House's operations were supported primarily by joint funding from the Commonwealth and State Governments with the State Government having responsibility for actual payments and day-to-day communications. Apart from the government funding Jireh House raised about $30 000 privately each year towards the running of its works. The Chamber pointed out that all the government monies received came with specific requirements as to expenditure and there was no latitude for Jireh House arbitrarily to include redundancy payments in all that context; the witness, Mrs Quinn, said the same. Approaches to government representatives locally seeking approval to make such payments had been rejected. The Union submitted that it was more a matter of priorities and that Jireh House was failing in its responsibilities as to redundancies. The Chamber outlined all the efforts Jireh House had made to ensure that the re-structuring exercise was carried out properly and fairly and submitted that the requirements specified in the Full Bench decision in the State Technological Change and Redundancy of 1985 (T125) had been complied with to the letter and in the spirit by Jireh House. There had been long notice, extensive discussions and negotiations with staff had taken place so that with the exception of Mrs Wiseman, all previous employees had been re-employed on terms satisfactory to them. The Chamber said that the end result and all the exemplary work by Jireh House in achieving that result put an onus back on Mrs Wiseman to do her best to co-operate and try to maintain her employment. In this context the Chamber submitted that Mrs Wiseman had failed by not applying for any of the jobs advertised and in refusing the particular job ultimately offered to her albeit unattractive; she had done nothing to minimise the situation the Chamber said. Jireh House had also offered Mrs Wiseman future relief work as employment. The Chamber said that by not co-operating and accepting future employment Mrs Wiseman had forfeited her right to any redundancy payment. The Union conceded that Jireh House had made extensive efforts to assist the employees during the re-structuring process but said this did not take away the fact there was a redundancy situation, the employees had been told there would be no enforcement, there had been a lot of stress over the long period of the re-structuring and, of the three new core full-time positions only one, that of the Client Services Assistant, in any way coincided with Mrs Wiseman's previous duties. The Union said that for reasons of personal factors, finance, health and job-configuration there was no real option of work being available for Mrs Wiseman at the re-structured Jireh House. Mrs Wiseman was also apprehensive about the likelihood of future disputation over jobs and allocations at Jireh House. The Union denied that a suitable, alternative job had been made available to Mrs Wiseman. DECISION: It does appear that Jireh House did all it could to ensure that its re-structuring exercise complied with the spirit and the letter of the Commission's redundancy standards: It seems also that, except for Mrs Wiseman, it was eminently successful in its efforts and therefore recognition is due. Nevertheless, all positions were declared vacant and the new, re-structured jobs were not the same as the previous jobs. Jireh House originally clearly regarded Mrs Wiseman as redundant. It appears also there was some compromise in the finish between Jireh House and some of its previous employees so that they could be "wedged in" as it were, to the new arrangements. It also appears to me that much of the work at Jireh House is in a shift-work situation but, I suspect shift-working principles were not paramount in the minds of either the employer or the employees when the future job placements were being settled. However, I don't place any weight on this last factor as there was no clear evidence and in any case the parties didn't advert to it. Paragraph three in the statement "Principles Governing Re-structured Positions" which Jireh House distributed to its employees at the start of the re-structuring said: "3 "All day-time positions (Manager, Program Assistant and Client Services Worker), are to be clearly separated from the rostered support worker positions, ie it will not be possible to hold one of these day-time positions and also hold part of a support worker position". Prima Facie this precluded Mrs Wiseman from regaining her original job or one like it. In all these previously mentioned circumstances I do not question Mrs Wiseman's motives in not accepting or even seeking a re-structured position at Jireh House. As to incapacity to pay I do not accept the submissions of the Chamber. At the hearing all parties accepted that responsibility for the financial commitments of Jireh House rested with the members of the Committee of Management. In evidence the Commission was told (in effect) that the annual income of Jireh House was close to $400 000. Factors like the overwhelming reliance on government monies and the social welfare nature of the work do not obviate Jireh House's obligations as an employer. Jireh House is a business and having taken on the responsibilities of an employer must fulfil minimum requirements. In this case I accept the Union's submission as a minimum standard and I so decide. I understand for calculation purposes, the parties have agreed to the amount of $466.03 as a weeks pay for Mrs Wiseman. I hereby order that Jireh House pay to Mrs Val Wiseman of Channel Highway, Kingston, an amount equivalent to two weeks pay for each year of her employment with Jireh House of Kingston and that payment be made no later than thirty days from the date hereof.
P A Imlach Appearances: Dates and place of hearing: |