T6674, T6675, T6676, T6691, T6692 etc
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union - Shop, Distributive and Allied Employees Association, and Fosseys (Australia) Pty Ltd
Industrial disputes - Termination of employment of nominated employees - dismissals unfair - severance allowance of 2 weeks pay per completed year of service determined REASONS FOR DECISION These applications were lodged by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the ALHMWU), and by the Shop, Distributive and Allied Employees Association, Tasmanian Branch (the SDAEA) pursuant to section 29 of the Industrial Relations Act 1984 for the purpose of settling industrial disputes with Fosseys (Australia) Pty Ltd (Fosseys) relating to the termination of employment of nominated employees from the Hobart city store which ceased trading in January 1997. The applications were in respect of three members of the ALHMWU and seven members of the SDAEA. They were:
who were ALHMWU members, and
who were SDAEA members. It was alleged that each former employee had been notified by the employer that the Fosseys Hobart store would close on 11 January 1997 and that their employment would be terminated from the close of business on 25 January 1997. Reinstatement to their former positions was claimed in respect of each employee. Mr Mathewson, representing the ALHMWU requested that the applications be joined for the purposes of hearing. There being no objection that request was approved. He submitted that discussions had taken place between the parties and it had been agreed that it would not be practical for reinstatement to occur, as the city store had closed and the terminations were to come into effect on 25 January 1997. Therefore he said that the remedy now sought was compensation - specifically appropriate redundancy payments. Mr Edwards, for the employer, agreed that reinstatement would not be a practical outcome and said that the parties had agreed to direct their attention to the issue of compensation. Mr Mathewson described the relevant circumstances of his members for whom applications had been made in the following terms:
Ms Dooley, representing the SDAEA members, described the relevant circumstances of the members she represented in the following manner:
Mr Mathewson told the Commission that in an open letter to employees written and distributed from the national office of Target Australia Pty Ltd (Target) in Victoria, dated 12 September 1996, employees were advised of a change of closure date from that previously notified of 18 October 1996 to 11 January 1997. He said the letter, which he tendered and identified as Exhibit M.1, addressed concerns the employees might have about the closure and made the following statement regarding redundancy payments:
Mr Mathewson said, however, that the company's position on the redundancy payment was immovable and fixed on the New South Wales Retail Industry State Redundancy Award standard which the ALHMWU did not accept as appropriate for Tasmania. The New South Wales Redundancy scale was tendered in Exhibit M.2 which is as follows:
He said the standard provided a scale which was generous for short term employees but failed to take into account the circumstances of long term employees with more than 6 years' service. The major area of disagreement was in respect of the capping at 16 and 20 weeks which was a disadvantage to his members with service ranging from 17 to 25 years. He said the New South Wales standard might be appropriate for that state where there were greater opportunities, but in Tasmania, where the unemployment rate was higher and where there seemed to be "a reduction in store restaurants and catering and the economy is generally depressed", the redundancy offer was not appropriate. Mr Mathewson said that given the case-by-case approach adopted by the Commission since the Termination, Change and Redundancy (TCR) case, T125 of 1985, in fairness to the long-term employees and in recognition of the difficulties they would face in the Tasmanian labour market, the New South Wales standard should not be applied in this State and a redundancy payment equivalent to 2 weeks' pay for each completed year of service plus an additional 4 weeks' pay for those over 45 years of age should be provided. Mr Mathewson tendered other examples of redundancy payments affecting members of his organisation and referred to the federal TCR decision. Ms Dooley made submissions which were similar to those of Mr Mathewson. She confirmed that the SDAEA had not agreed to the redundancy package offered by the company. She referred the Commission to a decision of Imlach C. in a matter involving the dismissal of an employee from the Coles Fossey Store in Hobart which awarded the employee 3 weeks' pay for each year of service "due to the nature of the dismissal". Ms Dooley said Commissioner Imlach's decision4 referred to the obligations the company had to meet since it was a "nation-wide employer of so many workers".5 Ms Dooley said the employees should have been redeployed into other areas of the Coles Myer Corporation. As they had not, she said, the company "had failed to meet the requirements of the State TCR decision". Ms Dooley said the members she represented, with the exception of Mrs L'ann Dillon, were offered a full time position in the new Target store to be opened on the Coles Fossey site in "eight months approximately". She said there was to be a retraining period commencing six weeks prior to the opening of the new store for which they would be paid, but she said the company was unable to give a precise date because of "difficulties with building delays".6 Mrs Dillon had been told that she could apply for a position with Target "but there wasn't actually a position there for her", Ms Dooley said.7 Her members had been told they would not be paid for the gap period and that they should use their long service leave and annual leave payments to "cover some of the time". Because of financial circumstances, her members, with the exception of one whose leave entitlements would cover the whole period, would need to seek other employment for financial reasons, she said. In addition she said her members had been told by management that Target could not give a guarantee that they would retain their full time status because of the "economic conditions". Ms Dooley said her members had also been told by the Department of Social Security (DSS) that they would have to be "actively seeking work" in order to be entitled to any unemployment benefit. Ms Dooley also sought redundancy payments of 2 weeks' pay per year of service and an additional 4 weeks' pay for those over 45 years of age. Mr Edwards for Fosseys (Australia) Pty Ltd outlined the prima facie position of the employer in the following manner:
Mr Edward said that Fosseys "verbally advised its employees at its Hobart store on 16th April of last year that the store was to close on or about 18th October 1996 .9 He said that verbal advice was followed up and confirmed in a circular dated 22 April 1996 from the General Manager Stores to all staff at "Fosseys Store 30 Hobart" which he tendered and was marked Exhibit E1. The document contained an assurance that every endeavour would be made to place people within other "Coles Myer businesses". Mr Edwards explained that the proposal to close the Hobart Fosseys store followed the integration of Fosseys Australia with Target Australia; both entities were part of the Coles Myer group of companies, he said. He submitted that the difficult trading pattern of the store in Tasmania had been discussed with staff and their unions during the preceding months. Work practices had been altered to optimise employment at the Hobart store. Mr Edwards addressed the content of the open letter to staff identified as Exhibit M1, to explain that since Target did not conduct food service functions, the skills of some employees were not "readily transferable to a Target situation".10 Mr Edwards said that whilst the store would be closing its doors on 11 January 1997, work would continue for an additional two weeks to enable "cleaning up and packing of stock and gear, et cetera, ready for auction...".11 All employees had been given specific notice dated 21 December 1996 which was handed to them on or about 23 December 1996 effectively, Mr Edwards said, 5 weeks notice. Mr Edwards submitted that the Company was committed to finding alternative employment for Fosseys' employees with the Coles Myer Corporation and to ameliorate the impact of the redundancy for employees at the Hobart store. To that end a number of processes had been initiated by the Company. They were:
It was submitted that the guarantee of employment by Target for non food service employees would not be available for approximately eight months with the intervening period being catered for by using all or some of annual leave, long service leave, unpaid leave, leave in advance (by application and approval) and paid training time "of eight weeks".12 Mr Edwards tendered an Exhibit (E3) which showed, for former employees, the amount of unpaid time which would occur between the end of any paid leave and the possible commencement of the training period of eight weeks prior to the new Target store opening. The opening date according to the timetable provided could be between August and October 1997. Food service employees were offered the option to seek retraining and transfer to Target but there was no guarantee of employment for those employees. Mr Edwards then referred to the "detailed information session" for each staff member conducted between 2 and 13 December 1996 dealing with:
Mr Edwards submitted that the package offered by the company was fair and reasonable. He said that it was for the Commission to judge the actions of the company to determine whether or not it had "acted in some way harshly, unjustly or unreasonably"13 and further that the applicants "must demonstrate a manifest unfairness that warrants the intervention of the Commission before the Commission is empowered to act in these matters."14 Mr Edwards said staff had been addressed by the Victoria/Tasmania Personnel Manager for Target Mr L Biesbroek who had provided details relating to the new Target store, types of work available and training to be provided. He said employees were informed that the redundancy package would be available to any employee leaving during the specific notice period. Mr Edwards provided the Commission with extracts from the State TCR case and quoted sections dealing with the need for employers to give as much notice as possible of redundancy situations and to allow employees to attend for job interviews. He also referred to the Bench's rejection in that case of a standard severance pay prescription. Mr Edwards submitted:
Mr Edwards then tendered several decisions of this Commission which he submitted supported his contention that where an employer acts reasonably in a redundancy situation, as was the case with his client, the Commission should not find the employer to have acted unfairly or unreasonably. He referred in particular to the provision of a guarantee of continued employment, "albeit with another employer". He said the employer had complied with the spirit and intent of the Commission's Full Bench decision and in his view full credit was due. He said the employer had endeavoured to minimise the trauma of the closure and loss of jobs and the Commission should follow the principles set by the Commission in the cases to which he referred. Mr Edwards submitted some of the employees had not availed themselves of the programmes being offered and that there was an obligation on employees "to mitigate their own loss" as "the whole obligation in circumstances such as this do not fall on the employer".16 Mr Edwards said the offer of guaranteed alternative employment with Target was a reasonable offer and should be taken into account in determining the extent of any severance payment. He conceded that the offer was "less relevant for some than for others".17 He said since continuing employment with Target could not be offered immediately employment with Fosseys ceased, the company accepted that it could not apply to have the "severance pay prescription entirely set aside."18 He said there were other former employees not the subject of these applications who, most likely, would seek to improve the redundancy package they had already accepted. An exhibit (E8) was tendered which set out the age and years of service of all employees affected by the closure of Store 30. Mr Edwards said the adoption of the "New South Wales formula" from the Retail Industry (State) Redundancy Award (NSW) had occurred because of a "desire of seeking a national uniform and consistent approach to the calculation of retrenchment payments, so as not to fuel claims for additional claims and leap frogging". A "privately typed" copy of the award was tendered and marked as Exhibit E9. Mr Edwards submitted that in each redundancy situation involving the Company in the past 2½ years, during which time some 25 stores had been closed, the terms of the New South Wales Award had been applied. That situation he said had occurred "with the full knowledge and the consent of at least the SDAEA."19 He was not certain about the position of the ALHMWU in the other States. A document entitled "Severance Pay Comparison" (Exhibit E10) was tendered which compared severance payments available in the other states (with the exception of South Australia) and the ACT. Exhibit E11 was an extract from an order of the federal commission issued 23 August 1994 providing severance payments for Coles Supermarkets Australia Pty Ltd. Other federal orders in respect of K-Mart Australia Ltd and Big W Discount Department Stores were tendered and Mr Edwards submitted they clearly demonstrated an obligation on those employers, within this State, to meet the severance pay standards set out in the federal Termination, Change and Redundancy Test Case decision. He said they demonstrated the general level of severance payment that major retailers in this state and elsewhere were required to observe. With the exception of the first two items in Exhibit E2 dealing with the specific and general notice periods, both Ms Dooley and Mr Mathewson were reluctant to accept, at face value, the submissions in support of and the "statements" contained in, much of the Exhibit. Both unions questioned the accuracy with which some of the activities were described and also questioned whether the statements in the Exhibit "reflected genuine efforts at the workplace level". Mr Mathewson contested Edward's submission that the company's actions were reasonable in respect of the "process and content of communications to employees" and "the company's actions regarding retraining, transfer and offers of alternative employment".20 He said that so far as the food service employees were concerned redundancy was the "obvious resort" although the company had said that redundancy would be the last resort.21 Ms Dooley sought to make a more detailed submission and to call witnesses to give evidence on all aspects of their employment and subsequent dismissal. As a result of the applicants' concern about the effectiveness of the company's actions and the veracity of Exhibit E2, an adjournment was sought to allow evidence to the presented to challenge the employers' claims. Mr Edwards indicated that he would seek to separate the applications to deal with each one individually if evidence from employees was to be led that went further than the material contained in Exhibit E2.22 The matter was adjourned to 11 March 1997. When the hearing resumed, Mr Mathewson declined to bring any witnesses in respect of Exhibit E2. Ms Dooley called four witnesses to give evidence, primarily in relation to that exhibit. Miss Margaret Gorringe said she had been given notice on 21 December 1996 that her services would be terminated on 25 January 1997. She said she had received no feed back from Coles Myer as to potential jobs. Some positions had been advertised on the Staff Notice Board but they were not suitable. She said she had not attended for job interviews as she had hoped that Fosseys would stay open. She rejected the Target offer as she did not know what position she would get, what the rate of pay would be, or what hours of work would be provided. A second witness, Miss Andrea Voss, said she had been given notice of the closure on 21 December 1996. She went for four interviews with Target but was told she was not suitable. She had applied for the jobs through the CES at Glenorchy. She said she had not accepted the Target offer because she "didn't think it was fair that (she) had to use all (her) entitlements" for which she had "worked hard" to carry her through the "gap" to the Target opening.23 Miss Voss said she had not received a formal letter from Target, addressed to her, guaranteeing a full-time job at Target and setting out the duties involved.24 She said she could have accessed a Social Security payment that did not require her to accept any job for which she might be sent for interview. The third witness, Mrs L'ann Dillon, confirmed the dates of receiving letters of notice and terminating employment. She said she did not think the company was committed to finding alternative employment for staff. She said there had been "no interviews with other stores" and only four jobs had been put on their notice board over the period and that none of the jobs were suitable for her.25 She said she was offered retraining but she was worried that if she retrained and got a job at Target she might later be told that she was unsuitable and be asked to leave. She said she was hoping "we'd ... get a reprieve". The fourth witness, Miss Sonya Carr, also confirmed the dates of necessary specific notice and termination. She said only four jobs in the "Coles/Myer department" were put on the notice board and other jobs, "cut out of the Mercury", were posted on the board. She said the jobs were unsuitable for her. She had been offered a job at the new Target store but she said there was no guarantee that it would be "permanent full-time."26 She said that made her feel "pretty insecure". Asked how she felt about having to use her leave entitlement to cover the gap she said:
Asked why she would not accept the offer of retraining Miss Carr said:
In response to a question regarding consultation between the company and the employees Miss Carr said:
Miss Carr signed a letter to the company, prepared by the union, indicating that she did not accept the redundancy pay. Mr Edwards then introduced Ms Connie Abate who said she has been Personnel Manager for Fosseys in Hobart from June 1993 to January 1997. Ms Abate confirmed that general notice of the closure of the Hobart store "sometime in or about October" was given to all staff on 22 April 1996. Specific notice of termination of employment was given on or about 21 December 1996 "by way of a letter addressed to each individual member personally".30 The letter (a copy of which was tendered as Exhibit E14) contained the following paragraph:
Staff were each given the same notice period of five weeks regardless of length of service, she said. The majority of the staff worked their last day on 13 January 1997. Ms Abate said the employee profile booklet referred to in Exhibit E2 was sent to "all managers in all Coles Myer stores in the south of the State". Two staff were employed by other Coles Myer businesses as a result of the booklet. Ms Abate said "eighty to 90 per cent" of staff made use of her offer to prepare and type their resumés. CARESEARCH had been available to staff "for the last few years and was a 24-hour contact number of a referral search". She said a notice was placed on the notice board informing staff that information sessions were to be conducted by the CES in June of 1996. A list of names of the employees who attended was tendered as Exhibit E16. She said if she had been informed she would have arranged for anyone to attend if they had so wished. The sessions conducted by the Department of Social Security had been organised by the SDAEA she said; despite the fact the company had tried to arrange them. Ms Abate said at least 90% of staff had attended the workshops on stress etc., which she had arranged with Dr Harry Stanton. Some staff had seen Dr Stanton on a one-to-one basis. Ms Abate said that to her knowledge the offer of guaranteed employment with Target was "absolute". She said that the "employment transfer" would happen and it would be on the same terms and conditions but with a higher rate of pay. When asked why employees were not advised what position they would be transferred to Ms Abate replied:
The following exchange between Mr Edwards and Ms Abate occurred:
Ms Abate said the offer to food-service employees to retrain was genuine. She said a number of staff had taken the opportunity to attend job interviews during paid time and in some cases to attend the "first shift of their new job".33 Details of those taking advantage of paid time off for interviews were contained in a document tendered as Exhibit E17. Ms Abate said all staff were made to attend the information session conducted by Mr Biesbroek and she had no idea why some of the witnesses could not remember those sessions. She said all employees were given a quotation sheet which showed "the proposed redundancy being offered by the company". They were made aware of what the unions were seeking; they were told how far their entitlements would take them and how long the training period would be. She said three employees left Fosseys during the notice period to take up other employment. Under cross-examination by Mr Mathewson, Ms Abate said that the employee profile booklet was not circulated to individual stores in the north of the State but given to the "head of the Coles personnel". She said that K-Mart had two vacant positions and Coles Supermarket at Bridgewater had one position. Between May and December 1996 reminder calls were made by Ms Abate to stores, asking if they had any vacant positions. Two employees were placed as a result of the initiative. Ms Abate said Target was aiming for an opening date in June 1997 subject to something unforeseeable happening. In cross-examination by Ms Dooley, Ms Abate said she was aware that some staff were not satisfied with the level of consultation between the company and employees. She said she was confused about the closing date of the Coles Supermarket at Glenorchy when she advised Mr Edwards on his submissions that she thought that had affected the ability of Fosseys staff to be absorbed. She said individual follow-up on the progress of the profile booklet had not occurred with all 70 staff members. Ms Abate disagreed with the evidence of some of the applicants that there had been no follow-up in respect of the CES sessions. Ms Abate said she had not been aware of the difficulties some employees had encountered in getting to the DSS session. She did not understand how any former employee could not have been aware of the offer of paid time off to attend job interviews. She acknowledged that it was very difficult to give employees any detailed individual information as to the job opportunities at the new Target store. Ms Abate thought the proposal offered by the company was fair and she would have accepted it if she had been in the same position. Mr Mathewson submitted that communication between the company and staff slowed in the second half of 1996 because of changes to the scheduled closing date and the breakdown in communication between the unions and the company at a national level. These developments, he said, adversely affected communications and increased the anxiety of staff. Further communications to employees through the general information session and individual sessions in December were held only after the Commission had been involved.34 He was concerned that some of his members were unable to attend certain information sessions and no effort had been made to provide them with the opportunity to do so. Anxiety was heightened, he said, when the company presented their redundancy package to all employees. In respect of the food-service staff Mr Mathewson said:
Mr Mathewson concluded his submission in the following manner:
Ms Dooley addressed Exhibit E2 and criticised the effectiveness and accuracy of a number of the features relied on by the employer. Some are referred to below. She submitted that although general notice had been given in April 1996 "adequate and proper consultation was not undertaken by the company between then and the termination date". In respect of the employee profile booklet Ms Dooley said it was "lacking in detail" and "wouldn't inspire" many employers. She said the notice board near the pay office window was across the corridor and would not be seen as a matter of course by anyone picking up their pay. Further employees were not directly informed of the availability of CARESEARCH. It was simply a poster on the notice board and had been there for some years. She was concerned there had been no follow up in respect of the CES visits on 6 and 7 June 1996, and that from that time, until January, the CES had not made contact. Ms Dooley said the DSS session had been organised by the union just prior to Christmas and not all staff could attend due to the short session and the "unavailability of DSS officers". She said employees who were absent when the clinical psychologist held his sessions, were disadvantaged, and one member said in evidence that she had not been made aware of the sessions. Ms Dooley again questioned the employer's submission that the effectiveness of the employee profile booklet issued in May 1996 was hampered by the closure of the Glenorchy supermarket as, she said, that store did not close until September 1996. Ms Dooley submitted that when Ms Abate told her members that ongoing full-time employment at Target could not be guaranteed as she "didn't have a crystal ball", they began to question the offer of employment. Ms Dooley also referred to the difference between the applicants' version of the length of the proposed training period, four to six weeks, compared with the employer's version of eight weeks. With respect to Mrs Dillon, Ms Dooley said Mrs Dillon was offered no guarantees other than to retrain and the evidence showed she was not confident of success. She said a stop work meeting, involving lost pay for the employees was necessary before a meeting was arranged by the industrial relations manager for Target Australia on 16 September 1996 to establish what might be available at Target. Eventually the Union brought the matter before this Commission in November 1996 but withdrew because specific notice of cessation of employment had not been given to employees. Another stop work meeting was held on 20 November 1996, she said. Ms Dooley said:
Ms Dooley said only three staff meetings were held during the general notice period and that it appeared that major aspects of the employer's redundancy program were not communicated to employees. She said the offers of assistance outlined in Exhibit E2 were not put in writing to employees and that the employer relied, largely on the notice boards and "verbal notice" to convey information and the company did not check to see "whether employees were getting the message or not".38 Ms Dooley submitted that it was "not feasible to accept" that only 4 or 6 job vacancies occurred in the general notice period in the other Coles Myer businesses. She said there was no feedback to the members she represented on the employee profile booklet. It was submitted that the offer of employment with Target was "fraught with difficulties" caused by the gap between employment and the lack of certainty that full-time employment would be retained. Ms Dooley said:
In closing Ms Dooley said:
and further:
In response to my request for reassurance that the individuals' circumstances had been properly addressed during the proceedings, Mr Edwards said he thought the circumstances of the individuals were almost identical and for that reason it had been agreed to proceed by way of a general claim for redundancy rather than to deal with each application in isolation. Mr Edwards said he was not in a position to repudiate the claim made by Mr Mathewson that the paucity of relief staff and subtle pressure on employees to remain at the work stations might have occurred to prevent his members' attendance at certain sessions. He acknowledged that at times in the lead up to the closure, manning levels were quite low and the pressures referred to by Mr Mathewson "undoubtedly were there". He submitted:
He submitted that Exhibit E2 which listed the action taken by the company to help employees was shown, by the evidence of the employees and Ms Abate, to be accurate. He said consultations in respect of the closure had started at least in May 1996 when the first hearing of application T6175 of 1996 took place. Mr Edwards said the company had gone to some trouble to ensure that they complied with the decision by Commissioner Imlach in the unfair dismissal case involving the company referred to by Ms Dooley, in which the Commissioner had criticised the company for having failed in its obligations to an employee whose position had been made redundant. Mr Edwards said the company "had done virtually every single solitary one of those things that the commission exhorted them to do".43 He said in this case the company had not been "one hundred per cent successful" in finding alternative employment but the company was not arguing that it should provide no redundancy payments. It was arguing that the Commission should have regard to the reasonable efforts the company had made. He submitted that the failure of the Commission to recognise the "legitimate and genuine" endeavours of the employer would mean that "employers will cease making the efforts which is not a good result for anyone".44 Mr Edwards submitted that the employees had received a redundancy payment from their employer in accordance with Article 12(1)(a) of Part II of the International Labor Organisation Convention on the Termination of Employment at the Initiative of the Employer and they would be entitled "at least prima facie, to certain allowances from the government by way of unemployment assistance which is in accordance with 12(1)(b)".45 FINDINGS I propose to deal first with the other State Commission decisions which Mr Edwards submitted should be considered in this matter. T2410 of 1991 was a dispute between the Tasmanian Branch of the Transport Workers' Union of Australia and the Cascade Brewery Company Ltd over redundancy payments. Deputy President Robinson set out a number of measures which an employer should take to cushion the effect of "job loss" which was unavoidable and occasioned through no fault of the employee. Although the Full Bench in the State TCR case did not decide all the measures an employer should take to cushion job loss, Deputy President Robinson listed those he thought were appropriate. Of more significance, in my opinion, was the Deputy President's finding that -
In my opinion the guarantee of continued employment for the four redundant employees with another firm, which was to perform the same work they had performed with Cascade, is substantially different from the offer of future employment in the Fosseys-Target circumstances. "Continued employment" to me suggests the immediate "transfer" to new employment of a similar nature and providing similar remuneration and other conditions. On the latter point I make the comment that the Cascade case had some unusual peripheral conditions which are not relevant to this matter. T1218 of 1988 was a dispute between the SDAEA and Fotheringhams involving redundancy pay. President Koerbin determined that the spirit and intent of the Commission's TCR decision should be studied if "costly termination payments are to be avoided". His decision clearly was appropriate in the circumstances that applied in that case. T4207 and 4223 of 1994 were applications by the SDAEA against Fosseys in respect of an employee whose position had been made redundant. Commissioner Imlach awarded 3 weeks' pay per year of service because the company had failed to give adequate notice; to provide counselling; to consider and investigate redeployment and training; to assist with finding alternative employment or grant time off for job searching. Again not all of those measures are addressed in the State TCR decision but it was certainly open to Commissioner Imlach to determine they were measures that he considered appropriate. T4613 of 1993 and 4654 of 1994 related to disputes between the AWU-FIME and AMACSU respectively, and Pasminco Metals-EZ involving redundancy payments. Commissioner Gozzi commended the company's efforts to "ameliorate the impact of retrenchments" on its employees and considered the Retrenchment Package, in the context of "weeks per year of service" was "fair and reasonable given that there was no ceiling in the package apart from the fact that no employee could receive more than if they had worked to retirement age". However the Commissioner decided that the notice period was inadequate and he determined that a period of six weeks' notice was reasonable. Mr Edwards did not address the quantum of the redundancy payments as he considered that was not relevant to the Fosseys matter and I agree with that submission. T1676 of 1988 was a dispute between the Federated Clerks Union of Australia, Tasmanian Branch, and Tasmaid Foods Pty Ltd in which Commissioner King rejected a claim for a redundancy payment because an employee had refused to accept alternative employment in another city when the company relocated its administration from Launceston to Devonport. In the circumstances of that case Commissioner King found the employer had not acted in a harsh, unjust or unreasonable manner. That decision was open to him on the case-by-case approach established by the 1985 Full Bench. Having considered the arbitrated cases presented by Mr Edwards, I am satisfied that principles flowing from them reasonably reflect the general approach of the Commission to redundancy situations in this jurisdiction. I agree with Mr Edwards' submission that the general principles for dealing with these matters should be maintained to give certainty to employers and employees. It is clear that where reasonable efforts have been made to ameliorate the impact of redundancy the Commission has taken that into consideration. An assessment of the amount of notice to be provided and the level of severance payment to be made will be determined after considering all the circumstances of each case as decided by the Full Bench in the TCR case. In essence that decision simply stated that "redundancy or retrenchment procedures" would continue to be decided by a "case by case" approach as circumstances "can and almost certainly do differ between employers and employees in the same industry and in different industries". In my view the cases referred to by Mr Edwards do no more than confirm that the Commission has applied the general principles determined in the TCR case. I turn now to the issues raised by Mr Edwards as indicative of the company's efforts to assist its former employees whose jobs disappeared when Fosseys closed its Hobart store to the public on 11 January 1997.
I recognise the genuine efforts made by the company to try to cushion the effects of redundancy, but those efforts without tangible results do not compensate the employees for the loss of their jobs in what is acknowledged to be a difficult employment period. Having considered all the material and submissions put to me I have concluded that the company's decision to terminate the employees, who are the subject of these applications, with severance payments calculated in accordance with the NSW Retail Industry Redundancy Award was unfair. It is in the public interest that an appropriate recognition be made of employees with good long service records with large and small employers. I consider the provision of two weeks' pay per year of service to retrenched employees, in the absence of any other agreement, is appropriate and in the public interest. Such an award will have no adverse impact on the public interest as set out in the tests in section 36 of the Act. In that context I remind the parties of what the Full Bench had to say at page 37 of its decision in the 1985 TCR case:
As all parties accept that reinstatement is clearly not an option in this case and having regard to the provisions of Article 12 of the International Labor Organisation's Convention, I have decided that the level of severance allowance to be paid by the employer to all former employees, the subject of these applications, should be two weeks' pay per completed year of service. I have considered the unions' claim that those over 45 years of age should receive an additional 4 weeks' pay. However I am not persuaded that sufficient reasons exist or were put to justify such an arrangement. That part of the unions' claim is dismissed. My findings in this matter have no application to any other former employee engaged at the Fosseys store at Hobart. Accordingly, pursuant to section 31 of the Act, I order Fosseys (Australia) Pty Ltd to pay to the following former employees at its Hobart store - Mr Bernard Dance a severance allowance of 2 weeks' pay for every year of completed service, less any payment already made in accordance with the Retail Industry (State) Redundancy Award (NSW). Such payment to be effected by 11 August 1997.
F D Westwood Appearances: Dates and place of hearing: 1 Application amended, transcript p.11 |
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