T7008 - 17 October
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Mr Timothy Richard Smith and Classic Video Pty Ltd trading as Video City
Industrial dispute - termination of employment - unfair - relisted to hear submissions on remedy REASONS FOR DECISION On 4 June 1997 Mr Timothy Richard Smith (the applicant) applied to the President, pursuant to s.29(1A)(a) of the Act, for a hearing before a Commissioner in respect of an industrial dispute with Classic Video Pty Ltd trading as Video City (the respondent) arising out of the termination of his employment on 20 May 1997. The matter was referred to me, pursuant to s.15(1)(d) of the Act, for the purpose of presiding over the hearing, which was listed on 28 July 1997 at the Magistrates Court in Launceston. When the hearing commenced, on that day, no appearance was entered by the applicant, nor by any agent for and on behalf of the applicant. As a result, the following correspondence was forwarded to the applicant on 6 August 1997.
The applicant responded to the correspondence on 20 August 1997, giving reasons for his non-attendance, and concluded with a request that the matter be relisted for hearing. This request was granted and the hearing was relisted in Hobart on 18 September 1997. During the hearing, the Commission encouraged the parties, on two occasions, to have discussions in an attempt to resolve the dispute. This was to no avail, and the Commission was required to hear submissions from the parties and make a finding. Employment History The applicant commenced his employment with the respondent on 22 August 1996, at the Newstead Video Library. The job advertisement stated the successful applicant:
Having completed a four-week training course at Newstead, the applicant was transferred to the respondent's establishment at Invermay. There he remained until he was transferred back to the Newstead library, commencing on Monday, 19 May 1997. Leaving aside the issues that led to his termination on 20 May 1997, the applicant's employment record with the respondent was not in dispute. Pre-dismissal matters On Wednesday, 14 May 1997, Ms D Smith - Regional Manager and Ms J Rodman - Supervisor, for the Invermay and Newstead video libraries, both of whom gave evidence under oath during this hearing, visited the Invermay library. The precise reason for doing so was unclear. During the course of that visit, the applicant contended that he suggested possible improvements to the system which, he maintained, led to the Regional Manager making a gesture with her fingers and saying to him "You are this close", and indicating that he was crossing the line of being impertinent. This resulted in the applicant feeling that his employment was under threat. The applicant responded by saying there was "no point suggesting anything to you", after which he went about his normal duties. That evening, a discussion took place between the Supervisor and the applicant, about the way the Regional Manager had conducted herself earlier that day. The applicant expressed the view that the Regional Manager had acted in an intimidating and threatening manner, especially when she inspected a shelf that had just been cleaned and said it was "putrid". The Supervisor, the applicant submitted, asked whether or not he wanted to put in a complaint or make a report at the time when she sent her weekly or fortnightly notes to Hobart. The applicant indicated that it would be sufficient if the Regional Manager could just change her attitude, to that of being more friendly, when she was at the library. The applicant said that he was quite happy for the Supervisor to speak to the Regional Manager about the issue. The Regional Manager acknowledged that she received a complaint from the Supervisor saying that staff at the Invermay library were unhappy. On 15 May 1997, the Regional Manager and the Supervisor again visited the Invermay library. The applicant said, just before the Regional Manager left, she asked to see him. During the course of that conversation she indicated to him that she had heard that he had some problems with her. The applicant indicated he did, and so did other staff members. The Regional Manager said she met with the three staff members individually, and arrived at the conclusion that the applicant was the only one that had a problem with her attitude. The submission presented by the applicant and the evidence given by the Regional Manager, led me to the conclusion that their discussion covered a number of issues, culminating in the Regional Manager suggesting to the applicant that he speak to the General Manager of Operations and/or the Managing Director. However, this offer was declined by the applicant. Before leaving to return to Devonport, the Regional Manager asked the applicant to write down his grievances and facsimile them to her, so she could have a look at them and get back to him. This suggestion was also declined by the applicant. The Regional Manager submitted that, during the course of their discussions, the applicant made a number of comments about management; disagreed with certain management decisions; and complained about information not going directly to him. As a result, the Regional Manager thought it would be in the best interest of the company and the applicant, if the applicant was transferred to Newstead, to work alongside the Supervisor. On the evening of Thursday, 15 May 1997, the Supervisor visited the Invermay library and just before leaving, she told the applicant that he was being transferred to the Newstead library on Monday, 19 May 1997. The applicant said that he was upset that management had taken his genuine grievance, and that of other staff, and turned it into a campaign of putting, what he believed to be, pressure on him to leave his place of employment. He contended the Supervisor stated, when they were in the office together, "Why don't you leave, you don't need the job." The applicant said that, when he was told about the move to Newstead, he indicated he did not want to be transferred in circumstances where his complaint had not been resolved and he was midway through a shift. The applicant asked the Supervisor why he had been transferred to the Newstead library and her response was, "Because we need a man there", to which the applicant indicated that it was not fair and was sexist. Whilst the evidence is not clear, I am satisfied that somewhere between 4.00 pm and 4.10 pm on Friday, 16 May 1997, the applicant received a telephone call from the Supervisor. The applicant stated that the Supervisor rang to tell him that she was sending a facsimile regarding his transfer to the Newstead library. The Supervisor said she telephoned the applicant to ensure that he received the facsimile and to advise him to notify her if it was not received. The applicant submitted that it was during that telephone conversation, he, once again, expressed his dissatisfaction with the move, and indicated to the Supervisor that he would be consulting the Department of Labour and Industry (DLI), if they insisted on the transfer. The applicant contended that the Supervisor replied by saying "That's fine. Just let me know if you don't receive this fax." The facsimile, which was transmitted at 4.10 pm on 16 May 1997, stated :
The applicant said, when he received the facsimile, he informed the only other employee at the Invermay library, Kim Hergatt, that on the way to do the banking (because it was Friday afternoon and they needed to get extra change for the library) he was going to drop into the DLI. After he had completed the banking he made telephone contact with a person at the DLI. During the applicant's absence, the Supervisor received a telephone call from Kim Hergatt, who, it was said, expressed concern that she could not have her lunch break, because the applicant had left the library and she did not know what time he was going to return. The Supervisor agreed to leave the Newstead library and go to the Invermay library to enable her to have a break. She arrived at approximately 4.20 pm and remained until 5.15 pm. When the applicant returned to the Invermay library, the Supervisor was still in attendance. According to the applicant's recollection, the Supervisor did not mention anything about his absence. This was confirmed by the Supervisor, who stated that she did not ask the applicant why he was absent from the library, for fear of getting into a confrontation with him. The Supervisor submitted that she was not aware of the reason for the applicant leaving the library, nor did he seek her permission. However, she assumed he went to the DLI, because, in a previous conversation with him, he said he would be going to the DLI. After returning to the Newstead library, the Supervisor contacted the Regional Manager about the incident. The Regional Manager advised the Supervisor that she would speak to the Manager of Operations and the Managing Director. The applicant stated, that due to the time taken at the DLI, he felt it necessary to work another half hour, over what was required of him, that day. The applicant's time sheet, for 16 May 1997, records he commenced work at 10.00 am; had a lunch break from 1.30 pm to 3.00 pm; and finished work at 7.00 pm. Later in this Decision it will be seen that, due to the work load and as there were only two employees in the library for that shift, the lunch break was not taken at 1.30 pm to 3.00 pm, but at a later time that day. On Monday, 19 May 1997, the applicant opened the Newstead store in accordance with the directions given. At approximately 11.00 am the Regional Manager telephoned and requested that he facsimile all time sheets to her at the Devonport library. On the evening of Monday, 19 May 1997, at about 9.30 pm, the Regional Manager made telephone contact with the Managing Director, during which time she conveyed to him the conversation she had with the Supervisor on Friday, 16 May 1997. Essentially, the conversation centered around the applicant's time sheet; how he had absented himself from work on Friday, 16 May 1997; and whether or not the applicant should be terminated. The Regional Manager agreed that the Managing Director requested her to confirm, with the applicant:
The Managing Director instructed the Regional Manager, if confirmation was received on the three questions, to dismiss the applicant on the grounds of falsifying his time sheet. The Regional Manager acknowledged (transcript pg 47) that the conversation with the Managing Director, concerning the dismissal of the applicant, was principally based on the falsification of the time sheet. Two time sheets were tendered as exhibits during the hearing, however, Mr Ewing for the respondent agreed that the time sheet identified as Exhibit A2, was not relevant to the dismissal. Dismissal Process On the Monday evening the Regional Manager made some notes on questions to ask and comments to be made to the applicant at a meeting the following day. On Tuesday, 20 May 1997, she attended the Newstead library and, at approximately 11.50 am, she asked the applicant to meet with her in the office. The applicant asserted, the Regional Manager commenced the meeting by reading from a prepared statement, which, he maintained, she only got about a quarter way through, when she told him she was terminating his employment and she required him to return his key. He said the reason he was given for the dismissal was, an unauthorised departure from the workplace. The position taken by the Regional Manager, in respect of the meeting, was that she:
The Regional Manager's notes, made soon after the meeting, indicate she made the following statement to the applicant, when bringing the meeting to its conclusion:
The Regional Manager then went on to ask the applicant if there was anything he wished to say as they could be recorded in her notes. The applicant had nothing to say, apart from a derogatory comment he made when leaving the premises. It was not contested that the meeting lasted about 10 minutes. Finding Whilst the evidence in this matter was sometimes inconsistent, nevertheless, I would have to conclude the reasons for the termination were:
However, transcript shows the Regional Manager stated that she had made up her mind to terminate the applicant before going into the meeting on 20 May 1997. When asked why, at page 44 of transcript, she stated:
The time sheets, required to be completed by employees of the respondent on a daily basis, have columns for Start Time; Break Start; Break End; End Time; Total Hours. If employees work an abnormal pattern, that is, outside their normal roster, then they are required to give an explanation at another part of the time sheet. On 16 May 1997, the applicant had intended to go to lunch at 1.30 pm, however, it got busy and with only one employee to assist him, he did not go until 4.00 pm. It is true to say that the times stated on the time sheet, indicating he had his lunch break between 1.30 pm and 3.00 pm, are not correct. When questioned why that time was written on the time sheet, the applicant said, when filling out the time sheet he put down 1.30 pm, as that was his rostered time. Then he realised it was incorrect so, as opposed to putting a line through it and writing it again, he adjusted the time he returned from the break, to take into account the length of time he believed he was away from the premises. In addition, he maintained that he worked an additional half hour on the day (after his normal finishing time) to make up for his visit to the DLI. The applicant said, the total number of hours he actually worked on 16 May 1997, were correct, even though there was an irregularity in relation to the time placed on the time sheet. This fact was not challenged during the course of his dismissal, nor during this hearing. When giving their evidence, the Regional Manager and the Supervisor conceded that it was possible, employees of the respondent commenced work before the start time and/or ceased work after the end time, and those times were not accurately recorded on their time sheet. Indeed, the evidence in this hearing showed that the other employee at the Invermay library, namely, Kim Hergatt, made an incorrect entry on her time sheet, on the same day as the applicant. Prima facie there seems to be an inconsistency in the approach taken by the respondent in relation to irregularities in employees time sheets. The Regional Manager conceded (transcript pg 70) that the error in the applicant's time sheet on 16 May 1997, if it stood alone, would not warrant summary dismissal. In relation to the alleged unauthorised absence from work, the evidence suggests the applicant was away from the library on 16 May 1997, somewhere between 4.00 pm and 5.15 pm. However, in the absence of any precise evidence, it is not possible for me to determine what proportion of that time was the employee's lunch break. There was certainly an indication, that the applicant went to the bank and contacted the DLI during that time. When the applicant returned to the library, the Supervisor, who was still in attendance, made no comment to him about his alleged unauthorised absence. In my view, the respondent should have, at least, established by way of dialogue with the applicant, such things as:
Another issue to be considered by the respondent was, could the applicant have reasonably arrived at the conclusion that his absence was so authorised, given that he had clearly indicated to the Supervisor (when she telephoned him to advise him that she was transmitting a facsimile regarding his transfer) that he was going to the DLI, to which she made no response. The applicant could be forgiven for thinking that the Supervisor's lack of interest in his stated intention to go to the DLI, was tacit approval. I am satisfied the respondent did not genuinely and fully investigate the allegations, which were later used as grounds to summarily dismiss the applicant. During the meeting that led to the eventual termination:
The facts and circumstances of this case, lead me to the view that the applicant was denied the opportunity of having the allegations clearly presented to him, thus denying him an adequate opportunity to respond. On balance, I would also conclude that the Regional Manager had determined, prior to entering the meeting with the applicant, that his employment was to be terminated. Given the foregoing; having heard the submissions of the parties; considered the evidence given under oath by the witnesses; and carried out my statutory obligation pursuant to s.31(1A) of the Act, that is, taking into account 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, I hereby determine that the dismissal of the applicant was unfair. Remedy The applicant in this matter submitted that, if the Commission found in his favour, reinstatement to his previous position was the appropriate remedy. On the other hand, Mr Ewing, for the respondent, was opposed to reinstatement as a remedy, even though he believed the applicant had the capacity to perform the work. He said that it would be inappropriate because:
Mr Ewing said that if the Commission was to find in favour of the applicant then the only remedy should be that of compensation. Whilst he did not have a firm view on the amount, he requested the Commission to take into account that the applicant had only been employed with the respondent for a period of seven months. The submissions of the parties in relation to the remedy were insufficient and, as a result, it has created difficulties for the Commission to arrive at an appropriate remedy. Section 31(1B) of the Act states in part:
As can be seen, the Commission can only turn to compensation after it has been satisfied that reinstatement is impractical. For that reason I am going to reconvene this hearing to enable the parties to present further submissions on the remedy to this dispute. In accordance with Section 20(4) of the Act, I also advise the parties that I intend taking into account Perkins v. Grace Worldwide (Aust) Pty Ltd 1997 IR Vol 71 at 186, Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 and Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, when determining this aspect of the application. This application will be relisted for hearing at 'Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania on Thursday, 13 November 1997 at 10.30 am. Before the hearing is reconvened, I would strongly recommend that the applicant and the respondent participate in further discussions in an attempt to settle the outstanding issue relating to this application. If a settlement is reached prior to the hearing date, then the Commission should be notified as early as possible by the applicant and the matter will be withdrawn from the list.
R J Watling Appearances: Date and place of hearing: |