T6496
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and and Gloria Marshall Figure Salon
Industrial dispute - termination of employment - reinstatement sought - arbitrated - payment ordered REASONS FOR DECISION This was an application for a dispute hearing made under Section 29 of the Industrial Relations Act 1984 by the Australian Liquor, Hospitality and Miscellaneous Workers Union (Tasmanian Branch) (the Union). The dispute concerned the termination of the employment of Mesdames Karen Minty, Sharon West, Vicki Klein and Kellie Hamilton (the four employees) by the Gloria Marshall Figure Salon of Sydney in New South Wales (the Company) which had closed its salon in Rosny, Tasmania because it was losing money. The Company operated 56 salons in other States. The Union sought reinstatement for the four employees, but, in the event the Commission found this to be impractical and not possible, the Union claimed the following redundancy payments:
From that part of the evidence which was uncontested the following relevant facts emerged:
During the period until the close-down date one or more of the four employees availed of the Company's offer of time off with pay to seek alternative employment and one of the employees, Vicki Klein, left her employment with the Company prior to 30 September 1996 to take up new employment elsewhere. The Union submitted that the Company had failed in that it did not formally notify each employee specifically that her employment was to cease on 30 September 1996, and moreover, the Company should have notified each employee in writing of the date of the cessation of her employment. The Union went further and said the verbal advice to the four employees together on 14 August 1996 did not constitute satisfactory notice, but only served as a general notice of the salon's closure. The witness for the Company, Ms Mollica, operated out of the State of Victoria, but, held the position of State Director for Tasmania. Ms Mollica stated that she had told the four employees at the meeting on 14 August 1996 that their jobs would cease when the salon closed down on Monday, 30 September 1996. The Union challenged this part of the evidence on the basis that the Union's two witnesses said otherwise, but, did not put it to Ms Mollica. The Tasmanian Chamber of Commerce and Industry (the Chamber) submitted that it was clear from the evidence that the four employees were notified properly and clearly on the 14 August 1996, that their employment would cease on 30 September 1996 and hence the Company had not failed in that regard. The Chamber stressed the following factors as confirming its submissions:
The Chamber also submitted that there was no general requirement or precedent established anywhere that notice of employment termination must be in writing. What was important, the Chamber said, was that the notice clearly and effectively terminated the contract of employment on a specified date, 30 September 1996. The Chamber stressed that, unless the Union could establish that the terminations of employment were harsh and unfair, its claim must fail. Decision I am satisfied from the evidence that the four employees were notified properly and sufficiently that their employment would cease on Monday, 30 September, 1996. Put another way, I am not able to accept that they were not sufficiently notified. It may have been better for written notices to be given to each of the four employees, but, nothing put to me indicated that course of action as mandatory. In the context of adequate notice in this redundancy situation where none of the four employees had much more than twelve months employment with the Company, six weeks notice of termination of employment was adequate. That part of the claim is dismissed. In the context that the Company had closed the salon permanently and in the prevailing bad unemployment situation the four employees did receive harsh treatment. Even though the Company's offer of interstate employment was a fair proposition (to any one of the four employees for whom it would have been convenient to accept) I do not criticise the four employees for not accepting it. It is obvious that reinstatement of the four employees is not an option in this case; I therefore decide that a payment of two weeks pay for each year of service or part thereof, on a proportional payment basis, is due. Order In accordance with the power vested in me under Section 31(1) of the Industrial Relations Act 1984, I hereby order that, within 21 days from the date hereof, Gloria Marshall Figure Salon of 10-12 Wentworth Avenue, Sydney in New South Wales, pay to Karen Anne Minty of 60 Arunta Crescent, Chigwell in Tasmania, Sharon Isobel Vincent West of 86 Lennox Avenue, Lutana in Tasmania, Vicki Klein of 41 Oakleigh Avenue, Taroona in Tasmania and Kellie Hamilton of Unit 3, 25 Daylesford Road, West Moonah in Tasmania, an amount of money equal to two weeks pay for each year, plus part thereof, on a proportional basis, of their employment with Gloria Marshall Figure Salon.
P A Imlach Appearances: Date and place of hearing: |