T6036
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Community and Public Sector Union and Minister for Public Sector Management
Industrial dispute - alleged harsh, unjust and unreasonable dismissal of an employee - application for reinstatement dismissed REASONS FOR DECISION Application was made by The Community and Public Sector Union (State Public Services Federation Tasmania) (CPSU) for a hearing to settle an industrial dispute pursuant to Section 29(1) of the Industrial Relations Act 1984. The dispute was with the Minister for Public Sector Management (the Minister) and concerned the alleged harsh, unjust and unreasonable dismissal of an employee - Mr Matthew Goodman. Mr Goodman was employed as a Compliance Inspector with the Department of Treasury and Finance but was dismissed as from the close of business on 22 December 1995. The CPSU sought that I make a finding as to harsh and unjust treatment of its member involving a denial of natural justice and that I issue an order for reinstatement of Mr Goodman. In summary the CPSU contended:
The Minister did not accept that Mr Goodman was unfairly dealt with or was denied natural justice. In written advice supplied to Mr Goodman by the Secretary, Department of Treasury and Finance [Exhibit CPSU6] the reasons for dismissal were stated as being [quote]:
This is the second time Mr Goodman has been involuntarily dismissed from the same department for disciplinary reasons; with the first such occurrence being subject to an earlier hearing in matter T.5762 of 1995, with Reasons for Interim Decision being issued on 9 November 1995 and Reasons for Decision following on 11 December 1995. Matter T.5762 related to certain events which occurred on 3 August 1995. However the present matter is unrelated but concerns other allegations which, whilst they had been raised with Mr Goodman earlier, he had not had sufficient time to answer them before he was dismissed on 4 August 1995. At the commencement of proceedings in relation to the present matter I made it clear that I would offer every encouragement to both parties to have the dispute resolved through the conciliation processes available, and in this regard relied upon section 20(1)(b) of the Act which provides that:
However it quickly became clear that there was no likelihood of settling the dispute by this method. It seems to me to be a matter of regret that there was not a sufficient demonstration of mutual goodwill between both parties at the relevant time to enable the dispute to be resolved in this, the least traumatic and sensible manner for resolving the issues. I am sure that the arbitral process, involving as it often does the naming of very senior State Servants, and the making of accusations and counter allegations in a public hearing, may too frequently have undesirable and unnecessary repercussive effects. Certainly the system properly gives the parties the right to a full airing of issues in appropriate circumstances, but it seems to be a pity that the art of compromise and the advantages which attach to it too often seem to be forgotten. In now turning to the fundamental issues it was freely admitted by Mr Goodman that he carried out private legal work during his ordinary hours of duty and for that purpose utilised his employer's equipment and facilities. None of those activities were authorised and the nature of the private work carried out was judged by his employer as being particularly inappropriate. Whilst Mr Goodman admitted carrying out what was described as "conveyancing work" in the employer's time and which involved the use of office equipment and materials he felt aggrieved for a number of reasons, including the fact that, in his view, some other employees in the same section carried out various forms of private activities under similar circumstances; he had not been adequately counselled or warned; and that his private activities in working time were not detrimental to the quantity or quality of his official work. In dealing with this matter it needs to be noted that it is a requirement of the Industrial Relations Act that a Commissioner is to take into account the standards of general application contained in Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer as set out in Schedule 10 to the Commonwealth Act [Section 31(1A)]. I have carefully considered each of the standards specified in Part II and can find no evidence of any action being taken which would suggest a contravention of any ILO Convention specified in that Part. Whilst other ILO Conventions not referred to in Section 31(1A) of the Act may, in appropriate circumstances support a case for counselling and warnings being given to an employee before being dismissed, the failure of the employer to do so cannot be taken to automatically result in a finding of unfair dismissal. Clearly each case must be judged according to all of the circumstances applying and an employee, and particularly a mature and work-experienced one, must take responsibility for his own conduct. Mr Goodman ought to have known that even if, as he says, others were breaking the rules he was nevertheless putting himself at some risk by doing private "conveyancing work" in the way that he did, and that is one factor which I have to take into account. That is not to say that I am satisfied that the employer could not have managed the supervision of the office better, nor that the whole series of events relating to Mr Goodman's private activities and the way they were handled once discovered could not have been better. However beyond that comment I am of the view that I should not attempt to superimpose my view over that of the employer who has different responsibilities to mine. Another argument relied upon by the applicant in this matter was that Mr Goodman was denied natural justice, and in this regard the wording of correspondence from the Secretary of the Department of Treasury and Finance dated 3 August 1995 to Mr Goodman was highlighted. At that time a report had been received by the Secretary from the Director of Revenue and Gaming concerning details discovered in relation to Mr Goodman's private conveyancing activity. As a consequence the Secretary then wrote to Mr Goodman and said (inter alia):
Because that statement appeared to be so definite as to a finding of improper conduct and a stated intention to terminate Mr Goodman's appointment before he had been given the opportunity to respond, it was argued by the CPSU that there was a case to say there was a denial of natural justice. However put in proper context the letter then went on to say that:
And whilst a time delay occurred because of other events Mr Goodman was in fact given the opportunity to respond to the accusations made against him before he was dismissed on and from 22 December 1995. Subsequently, on 19 January 1996, Mr Goodman was provided with written reasons for terminating his services which, it was said, were based upon all of the evidence including Mr Goodman's written response. In short the Secretary had concluded that Mr Goodman had acted improperly and provided no satisfactory explanation to excuse such conduct. Perhaps the Secretary of the Department could have qualified his opening remarks made in his 3 August 1995 letter, but the fact is that the correct processes were allowed to be followed, and that is what natural justice is all about. Therefore I am not satisfied that the applicant has made out a case to show that natural justice was denied. Another factor which has influenced my decision is that it was made quite clear that even Mr Goodman himself realistically regarded his position in relation to being re-employed at the Department of Treasury and Finance as being quite untenable after everything which had occurred there, and I agree with that observation. Given all of the aforementioned circumstances I am not satisfied that the actions of the employer in terminating the employment of Mr Goodman can be judged as having been either harsh or unjust or that he was denied natural justice. For all of these reasons the application for reinstatement is dismissed.
A. Robinson Appearances: Date and Place of Hearing: |