T6120
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Mr Dean Fulton and Minister for Public Sector Management
Industrial dispute - termination of employment - finding of unfair termination - reinstatement ordered REASONS FOR DECISION This matter concerns an application by a former employee to the President for a hearing in respect of an industrial dispute pursuant to Section 29(1A) of the Industrial Relations Act 1984. The dispute related to the alleged termination of employment of the applicant, Mr Dean Fulton who described the circumstances of the dispute as being that:
Given these circumstances Dean Fulton applied to the Commission for his reinstatement as an employee. The Minister for Public Sector Management (the Minister), as employer, opposed the application on the primary ground that the applicant in this matter had been employed on a fixed term contract which had expired on 25 February 1996, and no other contract for further employment was ever put in place. It was the Minister's secondary position that if, in the alternative, I was to find that a further contract of employment validly existed and that its terms extended beyond 25 February 1996, then Dean Fulton's conduct was such that the employer was justified in terminating his services for misconduct. Whilst I invited the parties to participate in conciliation proceedings as a mechanism for resolving the dispute consistent with Section 20(1)(b) of the Act, and the applicant was willing to participate in such an exercise, the response from the Minister's representative indicated to me that this process was unacceptable and therefore recourse to arbitration was the only available option. Given this position Mr Daly, of Counsel for the applicant, was invited to proceed and, in outlining his case, said that Dean Fulton claimed his services were terminated in circumstances which would be described as harsh, unjust or unreasonable. I was told that Dean Fulton commenced his probationary employment as a fire equipment officer located at Launceston in August 1994. Later, on 15 February 1995, an employment contract was signed which was to apply from 25 February 1995 until 25 February 1996. I was further advised that it was the employee's case that prior to this one year employment contract expiring, a telephone call was made on 22 December 1995 by Mr Tim Woodham, who was State Manager of the Fire Equipment Division (and the authorising officer on the original contract) to Mr Ray Fulton (Dean Fulton's father) who was Dean Fulton's senior officer at the Longford work site. According to Mr Daly the conversation between Mr Woodham and Mr Fulton senior was about who in the particular workplace was to be put on either a one year contract or a three year contract. Mr Fulton senior was told by Mr Woodham that he was going to go on a three year contract, as would Derry Freeman and Dean Fulton. Mr Daly said in his opening address that Mr Fulton senior relayed this message to Dean Fulton. It was further put to me that it was understood the new contracts began to operate as from 1 January 1996, and the only significant difference between the new and the old contract was the inclusion of a provision relating to employee salary deductions of 7.65% for the purpose of superannuation. In fact deductions of this amount were commenced to be made from that date. The claim was that Dean Fulton had executed no authority in respect of this deduction, nor was he consulted as to his own contribution. Rather, it was agreed, it was just the Tasmania Fire Service conducting itself in accordance with the terms of the new contract. An allegation was made against Dean Fulton by his employer about a possible offence which was alleged to have occurred on 5 February 1996 concerning the alleged misuse of a fuel card and said to involve the Longford Voluntary Fire Brigade. As a consequence the Northern Regional Manager of the Tasmania Fire Service, Mr Otley, was said to have contacted Dean Fulton and had a meeting with him on 12 February. Certain allegations were made but were said to have been denied by Dean Fulton. Shortly afterwards, on the same day, the police were called by Mr Otley and as a result Dean Fulton was processed and charged. Mr Daly submitted that this action by the management of the Tasmania Fire Service was one of the more heavy handed employer/employee interchanges that he had seen. The applicant's case was that after 12 February when Dean Fulton had the meeting with Mr Otley about the alleged offence the new written contracts arrived at the workplace on 15 February. They were all signed by Mr Woodham and backdated to 1 January 1996. It was further submitted that after Dean Fulton was processed by the police he was stood down on full pay until such time as it was decided what else was to be done regarding the alleged offence. By a letter dated 16 February 1996 from the Chief Officer of the State Fire Commission, Dean Fulton was advised that it was believed that he may have misconducted himself in an improper manner in that he improperly used a State Fire Commission fuel card. He was requested to furnish a written explanation concerning the alleged conduct within seven days. Following receipt of this letter from the State Fire Commission, Dean Fulton contacted Mr Daly on 20 February 1996. Mr Daly said he in turn contacted Mr Gledhill, the Chief Fire Officer of the State Fire Commission and author of the letter concerned. As Dean Fulton's solicitor, Mr Daly said he told Mr Gledhill the letter of 16 February had been passed on to him and some further time was needed in which to respond. Mr Daly said he in fact provided a response to the State Fire Commission on 5 March 1996 and in that letter he asked for clarification at their earliest as to what attitude the State Fire Commission was to take in respect of Dean Fulton's continued employment. The next letter received by Dean Fulton dated 29 February 1996, was from the State Fire Commission's Mr W.M. Gallagher, Director (Finance and Administration), who said no reply had been received to the Chief Officer's letter of 16 February requesting a written explanation within seven days. In the second paragraph of his letter Mr Gallagher said:
The rest of the letter concerned details of final payment and other sundry items. Subsequently Mr Daly requested that the State Fire Commission provide an employment separation certificate, which it did, and was signed by Mr Gallagher. Whereas the letter of termination earlier referred to had said the employment contract was due to expire and would not be renewed, the employment separation certificate disclosed that, in answer to the question on the Department of Social Security Form: "Was employment terminated due to misconduct", answered: "Yes". And when asked on the same form: "Did the employee cease work voluntarily", answered: "No". The form also requested that reasons be given for termination due to misconduct, but the State Fire Commission simply responded by claiming confidentiality. Mr Daly submitted the facts confirm that a new contract had begun on 1 January 1996 and was being acted upon and that after 5 February the State Fire Commission unfairly terminated Dean Fulton's services. Mr Daly presented his client, Mr Dean Fulton, to give sworn evidence and be cross-examined. Part of Dean Fulton's testimony was that on 5 February this year an allegation was made against him by his superior officers. According to Dean Fulton he was in the office of Mr Graham Otley (Northern Regional Chief Officer) with Mr Woodham when it was put to him that he had obtained $60 worth of petrol from the BP Longford Service Station and asked: "Did you not, or did you?" Dean Fulton said in evidence that he answered "No". Dean Fulton said the next thing which happened was that Mr Otley told him: "If you are sure you did not do it I will take your word for it", but added that "There will be a police investigation". Further details were provided concerning how Dean Fulton was sent out of the room and shortly after police arrived and he accompanied them to the nearby police station. Whilst Dean Fulton had been taken before a court in connection with this matter he had entered no plea and the matter was still adjourned. Whilst Dean Fulton's solicitors had requested information from police such as details of possible charges and of any taped interviews, that had not been received. Dean Fulton also said he believed he had been on a new three year contract at the time he was notified that his one year contract had expired. In addition, evidence was provided in respect of advice given to him by his father in relation to a new three year contract and the fact that deductions were made from his pay concerning superannuation as from 1 January 1996 even though he had not authorised such deductions. Under cross-examination Dean Fulton said that he had obtained $60.00 worth of petrol from the Fire Service (sic) at the Longford Fire Brigade, but no further detail was provided. Sworn evidence was given by Mr Raymond John Fulton (Mr Fulton senior). He said he was the Senior Fire Equipment Officer at the Kings Meadows Branch of the Tasmania Fire Service and as such was in charge of the branch and son Dean was under his control. He also said that on or about 22 December 1995 he received a telephone call from his boss, Mr Tim Woodham, "about our contracts that had been passed" [transcript p.16]. Mr Fulton senior said he had been told by Mr Woodham that "two of us was on a three year contract and three on a one year contract" [transcript p.17]. It was said that Mr Woodham's message as it related to Dean was that he had reviewed his performance as per sales and service figures and said that as a consequence he was going to put Dean on a three year contract. Mr Fulton senior said every employee went on to these new contracts and he informed son Dean and the rest of the staff who were given either a one year contract or a three year contract. According to this witness Dean Fulton was told: "I have some good news for you. Tim rang just before knock off time and said you are on a three year contract" [transcript p.19]. Mr Fulton senior said he received his written three year contract for signature on 15 February 1996 and its commencement date was 1 January 1996. The commencement date on the contracts of all other employees was assumed to be 1 January 1996 also. Mr Pearce, for the Minister, called Mr Timothy Woodham to give sworn evidence. Mr Woodham was State Manager for the Fire Equipment Division of the State Fire Service. Mr Woodham said he had been involved in a number of meetings in relation to a series of propositions going to contracts of employment and persons who were to receive different contracts of employment. These meetings extended over a period of six to eight months prior to the middle of December 1995. The meetings were usually conducted each fortnight. At page 28 of transcript Mr Pearce asked Mr Woodham:
To which Mr Woodham said there were and listed a number of other subjects including matters relating to certain aspects of an enterprise agreement. Mr Woodham testified to the fact that he had telephoned Senior Fire Equipment Officer, Mr Ray Fulton, just before Christmas 1995 regarding the issue of identifying those persons who were to receive contracts and the duration of such contracts. In this regard Mr Woodham said:
and a little later:
The Minister's primary position was that the contract of employment which was in place at the time of the alleged incident involving Dean Fulton was the contract of employment which was dated 25 February 1995 to run to 25 February 1996 and that no termination of employment occurred under that contract and that that contract of employment merely lapsed according to its terms. Mr Pearce said that in this regard there was no renewal of a contract with the State Fire Commission having regard for the circumstances which had occurred during the course of that contract. It was not denied that there was evidence of the fact that there was on foot a further contract to operate from 1 January 1996. Nor was it denied by Mr Peace that there was evidence of that having occurred in a retrospective sense. This point was illustrated by reference to Exhibit F7, copy of Mr Ray Fulton's contract, and it was said that similar contracts came into being in relation to all fire equipment division officers who were currently employed. It was noted that these documents were sent out in about the second or third week of February 1996. Using the example of Exhibit F7 it was noted that the opening words of the contract said:
The contract was to commence on 1 January 1996 and expire on 31 December 1998, and required the employee's signature under the wording:
Mr Peace argued that a discussion which took place between Mr Woodham and Mr Ray Fulton on 22 December 1995 amounted to no more than to advise that certain employees within his area of responsibility were to be offered contracts of either three years or one year duration, but that paperwork would follow and that no such confirmed offer was made to the applicant in this matter. As a secondary argument it was submitted that, in the event I find a new three year contract came into effect for Dean Fulton as from 1 January 1996, then this person was correctly dismissed because the relevant award provides for a head of power for an employee to be summarily dismissed by his employer on account of misconduct. In this regard it was said that the nature of the alleged offence regarding the manner in which a petrol card was used was regarded by the State Fire Commission as striking at the heart of the contractual relationship and it was justified in deciding not to renew the contract of Dean Fulton. Mr Pearce said that if the fuel card incident occurred during the course of what might have been the new three year contract (from 1 January 1996) then summary dismissal without notice was available under the provisions of the Tasmanian Fire Fighting Industry Employees Award 1995. Mr Pearce also submitted during the hearing that the serious nature of the alleged fuel card offence was outlined to Dean Fulton who himself chose, or on advice chose, not to respond to those allegations and in such circumstances the employer had a right to bring to a conclusion whatever employment contract was on foot at that time. Reliance for this position was supported by reference to a case reported in 1966 CCH Labour Law Review - Industrial Relations Court, Ryan JR (No. V1 95/1005) 12/10/1995, in CS Heard v Monash Medical Centre [Exhibit MPSM6]. In deciding this matter it must be acknowledged that not only are the circumstances of the industrial dispute unusual, but the outcome requires consideration of a mix of circumstantial evidence and fact. In addition I have heard different versions of what was meant and understood by witnesses who variously gave, or received verbal messages, and where necessary passed them on. Here I refer to the important issue of the message Mr Woodham gave to Mr Fulton senior and the resultant message passed on to Dean Fulton on 22 December 1995 relating to Dean's continued employment. All three gave sworn evidence and I am satisfied each did their best to recall exactly what was said at the relevant time and repeated what they believed was being essentially conveyed. Unfortunately the information was all too brief. Mr Woodham told Mr Fulton senior which employees were to get three year contracts and which were to be given a one year contract, and Dean's contract was to be of three year's duration. Each man understood that the paperwork would follow later, but on the eve of Christmas 1995 the clear picture seemed to be that Dean had performed so well in the preceding period that he had qualified not for a one year contract but for the much preferred three year contract. This was treated as good news and a welcome result by both Dean and his father and which by every sign was accepted by Dean without reservation. It seems to me that there would have been little point in this information being relayed to Dean through official channels just before Christmas if the clear intention was not to create a new three year contract to replace and supersede his one year contract. And it is not without some significance that the announcement of a new three year contract was not stated at the time as being conditional or predicated upon, for instance, final approval later; or subject to funds being available or the like. From the evidence it seems all of Dean's co-workers actually received the same kind of advice and all except Dean received written contracts for signature on or about 15 February 1996. In the example put forward the Special Contract - Fire Equipment Officer was worded:
Given that, despite the absence of formality, offer and acceptance occurred on or about 22 December 1995, the use of the word "confirm" on what was accepted as the standard form of new contract (Exhibit F7) represents a higher case for proof of a pre-existing contract than if this word had not been used. Furthermore clause 4 of the same contract created for the first time superannuation arrangements requiring employees to contribute 7.65% of their earnings as from 1 January 1996. It was an uncontested fact that the employer acted upon this provision of the new contract and deducted a sum of money from Dean's pay in the 1996 year (Exhibit F5]. If the events outlined were all that occurred then there may have been a case for saying that the position put on behalf of the Minister in this matter was correct and that the only firm arrangement which was in place so far as Dean Fulton was concerned was a 12 month's contract which expired, according to its terms, on 25 February 1996. In such circumstances it would follow that it could not be held that this employee was unfairly treated because the mere offer of a new three year contract did not reach finality. However the circumstances of this particular industrial dispute must be considered as a whole before deciding the first of two elements, i.e. did Dean Fulton's one year contract expire according to its terms on 25 February 1996, or was he employed for a further term of three years which would have commenced on 1 January 1996. I decide on balance, and not without some difficulty, that not only was Dean Fulton offered a three year contract which replaced and subsumed his one year contract which was in place on or about 22 December 1995, but that he had accepted that new contract and that it was being acted upon in all material respects. I have concluded that this decision is supportable for the following additional reasons:
It was because no written explanation was provided by Dean Fulton within the time specified that he was advised by letter dated 29 February 1996 that, inter alia:
Notwithstanding other events, Dean Fulton's position on all but one of the indicators available was that he was being employed on a new three year contract, and if this was not so then notice of non-renewal should properly have been conveyed to him before 25 February 1996 and not after, especially given the advice which he received on 22 December 1995 and subsequently when his position was that he was suspended on pay until the matter in contention was resolved [Exhibit F2]. 2. An official "Employment Separation Certificate" which was completed by the Director (Finance and Administration) of the State Fire Commission dated 8 March 1996 for the Department of Social Security (Exhibit F4), answers the question: "Was employment terminated due to ... misconduct?" "Yes". This information is, in my view, not consistent with the argument that Dean Fulton's services were not terminated for misconduct but that his one year contract expired according to its terms. Having decided against the Minister's primary argument I turn to the secondary argument that the employer was wholly justified in terminating Dean Fulton's services for reasons of misconduct. On reviewing the evidence before me it is apparent that the State Fire Commission Chief Officer, by letter dated 16 February, made an allegation expressed in the following terms:
On the evidence before me Dean Fulton denied the allegation and no case of proven misconduct has been made out. Whilst Dean Fulton made a comment under cross-examination to the effect that he had done the wrong thing, this was never pursued or further explained. According to Exhibit F3 it may be concluded that a decision was made (retrospectively) not to renew Dean Fulton's contract of employment because:
If, as I have already found, a new three year contract was already on foot at the relevant time then the decision "not to renew" was in fact a decision to terminate services for misconduct. ILO Convention 158, Part II, which concerns termination of employment at the initiative of the employer provides in Article 4 that:
I am not able to be satisfied that misconduct of such a nature as to justify termination of services has been proven. Certainly allegations of a serious nature exist but that is a different case to proven serious and wilful misconduct by Dean Fulton. On the uncontradicted evidence before me Dean Fulton has not refused to comply with a written request to answer allegations against him, but has for reasons advanced by his legal representative asked for more time. That is an entirely different position to the circumstances of a reported case put forward by Mr Pearce in M. Abbott-Etherington v Houghton Motors Pty Limited (Exhibit MPSM6). ILO Convention 158, Part II, Article 9, provides that (inter alia):
Given all of the circumstances of this case I am satisfied that the worker has been able to show good reasons why his application for reinstatement should be granted and that alternatively the employer has not discharged the burden of proving the existence of a valid reason for termination as defined in Article 4 of the relevant Convention. Having presided over a conference under Section 29 of the Act and having afforded the parties a reasonable opportunity to make any relevant submissions, and having considered the views expressed, I have decided that the following things need to be done for the purpose of settling this particular dispute:
This decision constitutes the making of an Order pursuant to Section 31 of the Industrial Relations Act and shall be effective from the date of this decision.
A. Robinson Appearances: Date and Place of Hearing: | ||