T6622
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Community and Public Sector Union and Minister for Public Sector Administration
Termination of employment - dismissal of long-term temporary employee -termination unfair - relisted to consider remedy REASONS FOR DECISION This application sought the reinstatement of a former employee, Mrs Margaret McCrossen, to a position in the Department of Education, Community and Cultural Development. The Community and Public Sector Union (State Public Services Federation Tasmania) (the CPSU) claimed that Mrs McCrossen had been a long term temporary employee engaged by the Department in a clerical capacity on a continuous basis since April 1993. It was alleged that Mrs McCrossen's termination was unfair as she had not been employed in compliance with due processes; that she had a reasonable expectation of continuing employment; and should have received the same support as a permanent employee whose position might be abolished. Mrs McCrossen's history of employment with the Department since March 1993 was tendered as Exhibit CPSU.2. That exhibit also included copies of various letters of appointment received by Mrs McCrossen during her employment with the Department. That history is set out in tabular form using Exhibit CPSU.2 as the base with some adjustments taken from the Department's letters and additional comments by the Commission.
Ms Strugnell for the CPSU also tendered an Administrative Instruction dated 28 August 1992, issued by the Minister administering the Tasmanian State Service Act 1984 which dealt with temporary employment in the State Service; and an Employment Instruction dated 14 May 1996 issued by the Commissioner for Public Employment which, amongst other things, defined the expression "Temporary Transfer" and set out the procedure to be followed to convert temporary employees to permanent status. Documents detailing Mrs McCrossen's entitlement to a Higher Duties Allowance for acting in a Clerk Class II position were also tendered. It was submitted that the Department had failed to forward to the Commissioner for Public Employment an application known as Form 206 which was a request to the Commissioner dated 12 July 1996 by Mrs McCrossen to have her temporary employment converted to permanent employment. Ms Strugnell said that clause 15 of the Employment Instructions referred to above required the Head of Agency to submit a request from a temporary employee for conversion to permanent appointment to the Commissioner for Public Employment (CPE). She said there was no evidence that the request had been forwarded to the CPE, and that Mrs McCrossen had received no response from the Department. Mrs McCrossen's letter to the Department's Director, Human and Payroll Services covering the Form 206 contained the following:
In evidence Mrs McCrossen admitted that there were small breaks in service between 2 November 1992 and March 1993; hence the claim before the Commission is for the period from 15 March 1993. Mrs McCrossen said she had asked previously about having her employment converted from temporary to permanent 12 months after she had started with the Department but had been told by someone in "Employee Relations" that she would be wasting her time. Mrs McCrossen said she had made a number of attempts to find alternative employment in 1996 without any assistance from the Department. She had presented her resume to officers responsible for staffing but had received no response. She had been issued with a new uniform in July 1996 along with other staff in Records Services. She said that the issue of new uniforms implied there was some expectation that her employment was to continue. Mrs McCrossen said she had been selected on merit by an interview panel of four for the Clerk Class II position in Records in September 1994. Mrs McCrossen acknowledged that for the time she had been in Records Services there had been "talk of perhaps something happening in the future", although "nothing in particular" (transcript page 23). She had been informed that jobs in the Records Section would come to an end in 1995 or 1996 because 75% of the files would be going to Facility Services. She said she had applied for an Administrative Officer position at the Rose Bay High School and Goulburn Street Primary School. She had been interviewed for the Rose Bay High School position in late October 1996 and informed towards the end of November or early December 1996 that she had been unsuccessful. A similar sequence of events applied in relation to the Goulburn Street School position which was for 10 hours per week. She also applied for a .6 support clerk position, that is 3 days a week, in the Grants and Assistance Unit in the Finance Branch but was unsuccessful. The position was offered to her later as the successful applicant had left after 6 weeks. She said she had decided to stay with the Facility Services position on the advice that the position was probably ongoing. When asked how she knew to continue her employment when she had not received a "contract or letter of appointment", Mrs McCrossen said:
(Transcript, p.12) Mrs McCrossen said that in view of the way in which she had been employed in the Department she had formed an expectation of continuing employment. Under cross examination Mrs McCrossen repeated that she had declined the offer to take up the position in Grants and Assistance which would have extended her employment to June 1997, because her supervisor, Mrs Blande, had told her that she would be "better off" in Facility Services and she had been given an indication that the job would have been ongoing. A memorandum from Mr N May of the Grants and Assistance Unit dated 9 December 1996 (Folio 37 of Exhibit G) also suggested that Mrs McCrossen had believed she had the chance of securing a better position with Facility Services and she did not want to jeopardise her prospects there. She said Mrs Blande had told her not to give up hope that "something could happen", and "that it could be ongoing because of the records being over there", that is at Facility Services. She had attended a "team building workshop" with Facility Services held at Bicheno in September because, Mrs McCrossen said, Mrs Blande had said that as the job was "probably ongoing" it would be a "good way to get used to the section and to find out what the other jobs were about". It was noted that Mrs McCrossen had been absent on workers compensation for 3 months from May 1996 and may not have been aware of some training programmes. Ms Strugnell submitted that the case represented an "appalling misuse" of temporary employment. It was an abuse of the Administrative Instructions. The letters of appointment were inconsistent, inaccurate and created uncertainty in the minds of the recipients. A Higher Duties Allowance which, it was said, was payable only to permanent employees had been paid to Mrs McCrossen, suggesting that the Department regarded Mrs McCrossen as a permanent employee. The Department failed to comply with the Employment Instructions of the CPE in relation to Mrs McCrossen's Form 206 application. Ms Strugnell claimed that the Department had used temporary employment status to avoid the need to refer to redeployment registers which were applicable only in respect of permanent employees; to avoid the requirement to make redundancy payments and to avoid the general responsibility to assist the employee to find alternative employment. Ms Strugnell submitted that Mrs McCrossen should have been afforded the same considerations as a permanent employee when her position was abolished. In particular Mrs McCrossen should have been considered for redeployment rather than allowing positions in the agency to be filled following general advertisement. Mr Gourlay, for the Minister, introduced two witnesses, Mr Cardiff and Mrs Blande, both of whom had been supervisors of Mrs McCrossen at relevant times of her employment with the agency. Mr R J Cardiff, Co-ordinator, Document Services Unit, said he had regularly stressed to temporary staff that changes in the organisation of the Records Section were to occur over 1995 and 1996. Appointments for temporary staff were extended every 3 months. There were 3 permanent and 3 temporary staff at that time. Now there were only 3 permanent staff in Records Services. He said he had highlighted for Mrs McCrossen information in advertisements seeking expressions of interest for people with her skills. Other employees had taken up offers of assistance and one had got a job elsewhere in the agency. Under cross examination Mr Cardiff said he had not contacted the managers at the Goulburn Street Primary and Rose Bay High Schools which were schools in which jobs had been advertised for which Mrs McCrossen had applied. The nature of the work, the skills and training required were the same for temporary and permanent employees, he said, and he acknowledged that temporary employees were treated differently from permanent employees. Mrs E M Blande, Executive Officer, Finance and Contracts with the Facility Services Section, said she had had an informal discussion with Mrs McCrossen about a temporary vacancy to commence early in September 1996. She later classified that discussion as an interview. She denied having offered Mrs McCrossen continuing employment in her section. She said that 2 weeks after joining Facility Services Mrs McCrossen was offered a position in Grants and Assistance and she had advised her to take it. She said she had helped Mrs McCrossen with advice or assistance in finding other employment, providing training, including a team building exercise at Bicheno. She could not recall what she had said to Mrs McCrossen in relation to the latter's observations that she felt her skills were being improved by working in Facility Services. Mr Gourlay submitted that at all times Mrs McCrossen had been aware of the temporary nature of her employment in Records Services and Facility Services. Mrs McCrossen acknowledged that was the case during cross examination. It was not disputed that Mrs McCrossen had been given advice by the agency both verbally and in writing of the pending conclusion of her appointment in Records Services at least three months before it occurred. To emphasize this point Mr Gourlay tendered a copy of a letter dated 10 May 1996 to Mrs McCrossen from the Deputy Secretary (Corporate Services) which is set out below:
Mr Gourlay tendered copies of statements attributed to certain employees in Facility Services, the general tenor of which was that none of these employees had heard Mrs Blande tell or had told Mrs McCrossen that her temporary employment would become ongoing. Following objections from Ms Strugnell as to the contents of these documents, I informed Mr Gourlay that the Commission preferred witness evidence and sworn affidavits in contested cases of this nature as it was not possible to properly test statements such as those provided and determine what weight should be given to the evidence so deposed unless the writers were available to give evidence. Mr Gourlay submitted that considerable "assistance and guidance" was provided to Mrs McCrossen to help her find alternative employment, particularly by her two supervisors. He again referred to the temporary part time position with Grants and Assistance which was to expire at 30 June 1997. Mrs McCrossen had declined that offer even though, Mr Gourlay said, she knew the other position in Facility Services had a clearly defined earlier termination date. He also drew the Commission's attention to the range of training programmes which he said were available to Mrs McCrossen and showed the extent to which the Department had endeavoured to help Mrs McCrossen. Mr Gourlay submitted that the "conclusion of Mrs McCrossen's temporary employment occurred in accordance with the written and verbal advice that she was given in relation to her appointment in Facility Services". "This was in no way unreasonable", he said (transcript p.61). Mr Gourlay said there were no vacant positions suitable for Mrs McCrossen in the agency and that reinstatement was not practical from the agency's perspective. Mr Gourlay acknowledged that "the level and standard of correspondence that Mrs McCrossen has received certainly in terms of temporary appointment letters" was not satisfactory and that the Department hoped to rectify the problem. FINDING Mrs McCrossen was employed in records and similar work in a number of units, branches or sections within the agency between 2 November 1992 and 8 November 1996. That period was unbroken from 15 March 1993 to 8 November 1996, apart from three months of absence on workers compensation. She was classified at different stages of her employment with the Department under the Administrative and Clerical Employees Award as Clerk Class I, Clerk Class II with an HDA, Acting Clerk Class II with an HDA, Acting Records Officer Class II, Acting Records Officer Class II with an HDA, and in her last "position" or "positions" Clerk Level 2 year 3, Clerk Level 3 year 1, and Clerk Level 2 year 1. The Department acknowledges that the level and standard of correspondence with this temporary employee was not satisfactory. Whilst it is not a matter for this Commission to rule on, the agency does not appear to have observed the spirit and intent of the requirements of the Minister administering the Tasmanian State Service Act as set out in Administrative Instructions dealing with temporary employment in the Tasmanian State Service, nor does it appear to have complied with the requirements of the CPE set out in the Employment Instructions of 14 May 1996. In particular the Administration Instruction states:
That advice in writing is required, as a minimum, to include certain specific details set out in the Instruction. In this case during her period of continuous employment with the Department of some 3-1/2 years plus, Mrs McCrossen was employed without written confirmation on three occasions for a total of approximately 8-1/2 months. Written advice of the extension of her employment or appointment was dated prior to the commencement of her new period of employment on only three occasions out of the fifteen documented periods of employment. The other twelve documents were dated between one day and two months after the date of the commencement of her employment. None of the documentation indicated the reason for the vacancy being for a short term. For the last period of her employment which appears to have commenced on Saturday, 3 August 1996, three letters of appointment were forwarded to Mrs McCrossen, each one citing a different classification level and consequently a different rate of pay and there were two different commencement dates. Apparently it was not the practice to require appointees to accept, in writing, job offers before they commenced employment or indeed at any time. Her employment generally appears to have been extended five times at three months each time between 31 January 1995 and 31 July 1996, with one period of three months in that span for which no authority was given. The letter from the Deputy Secretary, reasonable as it is in isolation, needs to be viewed in this context. The Department appears also to have ignored the specific requirements of the CPE. The Employment Instruction issued by the CPE dealing with the Conversion of Temporary Employees to Permanent Status, requires a Head of Agency to refer a request (Form 206) from a temporary employee for permanent employment. In this case that does not appear to have been done. Mrs McCrossen submitted her Form 206 on 12 July 1996, but Mr Gourlay informed the Commission that the Head of Agency was not intending to recommend that Mrs McCrossen be made permanent and so the form had not been sent on to the CPE. Whilst the Head of Agency may not have been intending to recommend permanency, the Instruction, it seems to me, makes it mandatory that an application be forwarded to the CPE for consideration. I do not intend to comment on the claim that the payment of a higher duties allowance to Mrs McCrossen might have indicated some form of permanence in her employment, nor do I wish to comment on the distinction between permanent and temporary employees which are derived from the Tasmanian State Service Act. Those factors are not relevant to, and have not influenced my findings. I do not consider the availability of training programmes and the assistance provided to Mrs McCrossen to obtain suitable alternative employment were sufficient to offset the facts of this case given the length and continuity of Mrs McCrossen's service. Such a finding should not be construed to mean that the Department's efforts in this regard were worthless. However the significance of those efforts was not sufficient to outweigh the other factors. Mrs McCrossen received mixed messages throughout her employment with the Department. Her employment continued and generally supporting documentation arrived after the date of commencement. Notwithstanding the difference of opinion as to whether or not Mrs Blande had told Mrs McCrossen that there was a chance of her employment at Facility Services being extended, I consider that the pattern of employment created for Mrs McCrossen in the Department was such that it was not unreasonable for her to think that ongoing employment in the Department would eventuate. Such had been the case since March 1993. The records and Exhibit CPSU.2, which was not challenged, show that she had been continuously employed from 15 March 1993 to 8 November 1996. Regardless of the documentation of her employment, flawed as it was, in substance and in truth, Mrs McCrossen was employed continuously for that period, and I consider that it was quite reasonable for her to conclude that ongoing employment in the Department most likely would be provided. Although the positions she occupied were said to be temporary and were for short, specific time periods, for three and a half years new positions were found for her. Mrs McCrossen became, it seems to me, a relief clerk filling in for the agency wherever her skills were suitable. The ongoing and unbroken nature of her employment, and the Department's failure to provide a satisfactory redeployment option or some form of separation package, in my opinion in all the circumstances of this case, is unfair. I therefore reject the submission that Mrs McCrossen has been treated fairly by terminating her employment without recognition of the period of her continuous service. Therefore, in view of the continuous nature of Mrs McCrossen's employment with the same agency over the period 15 March 1993 to 8 November 1996, and the lack of a genuine redeployment effort or a suitable separation payment, I find that Mrs McCrossen's employment with the Department of Education, Community and Cultural Development has been unfairly terminated. This application will be relisted at 2.15 p.m. on Friday, 4 April 1997, to allow the parties to make detailed submissions as to the appropriate remedy to settle this industrial dispute.
F D Westwood Appearances: Mr P Gourlay with Mr J O'Neill for the Minister for Public Sector Administration Date and place of hearing: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||