TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Katrina Maria Sutton
(T.7163 of 1997)

and

Tasmanian Group Training

Industrial Dispute - alleged unfair dismissal - application upheld - order issued

REASONS FOR DECISION

This application lodged pursuant to section 29 of the Industrial Relations Act 1984 seeks the re-instatement of Katrina Maria Sutton (the employee) to her former position with Tasmanian Group Training Ltd (the employer).

A brief background to this matter is that the employee commenced her full time role of Development Officer with the employer in January 1997 and was based in Launceston. She was provided with a fully maintained motor vehicle which her "Conditions of Employment" document¹ indicated, "will be provided for business and private use".

At or about Easter of 1997 the employee was apprehended by the police and exceeded the legal blood alcohol level in a breathalyzer test. She attended a court hearing in relation to the offence in May and advised the employer of her problem on 4 June 1997.

On 22 July 1997 the employee lost her licence for a period of twelve (12) months, as a result of the infringement. The employee was subsequently dismissed from her employment with the last working day being 31 July 1997.

The employers "Termination of Employment Form"² stated that the reason for termination was the employees "loss of drivers licence ".

Mr M Daly ( of counsel ) appearing for the employee in this matter submitted that the dismissal of the employee was capricious and not for valid reasons and that the employee seeks re-instatement to her former position. He further submitted that if re-instatement was impracticable the employee should receive six (6) months pay as compensation for the loss of her employment.

The main points from the evidence of the employee and the submissions of Mr Daly in support of the application in this matter are as follows:-

• The newspaper advertisement for the position of Development Officer contained the following reference only to a motor car; "The salary for this position will be commensurate with the skills and attributes of the successful applicant and includes a fully maintained motor vehicle".

• The car was part of the salary package and not an essential part of the requirements for doing the job.

• There was no reference to a drivers licence being an essential requisite for the job in either the position advertisement³ or the "Conditions of Employment" document.⁴

• Following advice by the employee to the employer on 5 June of her likely disqualification from driving, there was no reaction from the employer that would suggest she may lose her position as a consequence.

• On 11 June the employee received a letter⁵ advising her that she would receive a salary increase from the first pay day in July 1997, following an annual salary review. Hardly the action of an employer who is unhappy with the employee and about to terminate her services.

• On 19 June a discussion took place between the employee and Management, (Mr Stafford and Mr McHenry) where a range of matters were discussed including the pending loss of licence. There was no suggestion the employee was about to lose her position.

• On 22 July the employee was convicted and lost her licence for twelve (12) months.

• The employee prepared a "Strategy for Launceston Office"⁶ for her continued employment following the loss of her licence

• On 24 July further discussions between the employee and Management resulted in a rejection of her "strategy" by Management and the employee being advised that she would be terminated.

• The employee gave considerable evidence going to her role and the requirements to use a motor vehicle.

• The evidence was that for the first four months she had been in the vehicle for approximately 40 to 50 per cent of her time. This had produced limited success for the business and was largely familiarisation, a getting to know you period.

• The next two months saw the focus change to the greater Launceston C.B.D. which required very little use of the vehicle. This emphasis produced good results for the employer and could continue for up to six (6) months.

• A new Development Officer who had contacts and experience in the North West could do most of the field work thus allowing the employee to focus on the Launceston C.B.D. where the use of a vehicle was limited.

• The employee did offer to resign if the situation became unworkable. However, she did not accept that this was the case and no trial of her strategy to overcome the problem was allowed.

In his concluding submissions Mr Daly put that the clear evidence was that over the last two months of employment the focus had been on the Launceston and greater Launceston C.B.D. where the need for a car was limited and any future requirement could be overcome with the use of taxis at probably no greater cost.

The focus for the future was also to be on the Launceston C.B.D. thus limiting any problems. The new Development Officer could service outlying areas and the "Strategy for Launceston Office"⁷ prepared by the employee could be the basis of future operation probably for the twelve (12) months disqualification period.

There had been no examples of emergencies or other urgent situations in the last six months where it had been imperative that the employee have a licence. It was reasonable to conclude that the future was also not likely to produce any such incidents. It was submitted that there was no evidence produced to prove that the employee's job could not be done, in the absence of a licence, without loss of performance.

There had been no consultation in this matter, no serious consideration of the employee's proposal for the future and the dismissal in all of the circumstances was harsh, unjust and unreasonable.

The evidence and submissions of the employer were focused on the expansion of the employers business from the South to the North of the state. The expansion itself focused on the appointment of the employee in January 1997 and her base being Launceston, with responsibility for the Company's activities in the North and North West. Having such a wide area of operation it was submitted it was virtually impossible for the employee to be able to carry out her functions without the constant use of or ability to use a motor vehicle.

I accept Mr Gates submission that if the holding of a current drivers licence had been a requirement stated in the position advertisement⁸ and in the employers "Conditions of Employment" document⁹ it is highly unlikely this matter would be before the Commission. The reality is though that the requirement supported by clear reasons for the provision of a motor vehicle to the employee are not included in Exhibits D.1. and D.2.

I acknowledge that Exhibit D2 contains the following:

"Company Vehicles

A vehicle will be provided for business and private use . . . . . . . ."

No elaboration on the extent of use required or whether it is primarily part of the salary package or a fundamental tool in doing the job required.

Further the evidence was that for the two (2) months up to the date of termination, the employee with the knowledge and support of Management, had focused her efforts on the Launceston C.B.D. and the use of a vehicle was not critical even essential for most of that time. Her evidence was also not seriously challenged that the same pattern could continue for some months.

With the employment of a second Development Officer to work with the employee in the North and North West of the state it is conceivable that the employee's evidence is accurate, that with careful planning and working together the two employees could have minimised if not alleviated the difficulties caused by the loss of the employees licence.

I am also concerned that the evidence of the employee, generally not challenged by the employer, was that from the time of notification of the likely loss of licence (4 June 1997) up until 24 July 1997 (the termination meeting) there was no suggestion from Management that the employee would be terminated if she lost her licence.

It does not appear from the evidence that the employer gave serious consideration to the employees suggested "Strategy for Launceston Office"¹⁰ to apply after she had lost her licence. Instead it seems management was offended by its wording or suggestions and dismissed it out of hand.

On 24 July the employee was asked to resign, when she refused, she was told she would be dismissed. From the evidence, I can only conclude without any meaningful discussions on options for continuing the employee's employment.

These matters raise questions of natural justice and I believe the employer is found wanting in this respect.

I accept that in evidence the General Manager indicated that he had in his mind that the loss of licence would only be for three months. Three months is an easier period to manage in such circumstances than twelve months. However, I would have assumed that from 4 June whether the anticipated suspension was three months or twelve months, serious thought would have been given to working out a strategy for dealing with the problem. If three months was manageable perhaps twelve months was manageable particularly with the work focus on the Launceston C.B.D. continuing and with the addition of a new staff member who has a licence and vehicle.

I believe in all the circumstances the dismissal was unfair and unreasonable and find accordingly.

Before going to a remedy in this matter I feel it important that I comment on an issue raised by Mr Gates in cross examination of the employee and in final submissions.

Mr Gates drew from the employee confirmation that she was driving the employers vehicle at the time the blood alcohol reading was taken by the Police. In final submissions he asserted that driving a company vehicle with a blood alcohol reading in excess of the legal limit was a serious offence and could justify dismissal on its own. He relied on this submission as a secondary position but none the less something the Commission should take into account.

The employee advised the employer on 4 June 1997 of her predicament. If management was going to make an issue of the driving of the company vehicle with an excessive blood alcohol reading (and I acknowledge it certainly could) that was the time to do it, not in Commission proceedings, not only well after the event but some time after her dismissal.

If any company policy or generally accepted standard had been breached by the employee in her use of the company vehicle the lack of any action on the part of the employer between 4 June and 31 July 1997, effectively means the employer has condoned the breach and forfeited any right to raise it in this forum. I readily concede that this issue raised at the right time and dealt with in an appropriate manner may lead to dismissal.

The ultimate remedy in this matter is re-instatement of the employee. However, there are two significant issues in considering re-instatement they are; that at about the time of the employee lodging this dispute notification (7 August 1997) the employer engaged another Development Officer to work in the North of the State. This engagement effectively replaces the employee. The second consideration is that while I believe from the evidence the employee could continue her work in the Launceston CBD without significant interference, through the loss of her licence, no trial period was implemented to confirm or otherwise that belief. There is no doubt in my mind that the appointment of another Development Officer who would have worked with the employee would also make it easier to manage her constraint.

However, in the absence of a trial and not knowing for certain that the loss of licence would not impose unnecessary restraints on the employer's business activity I am not prepared to order re-instatement. Having decided as I have in relation to the work situation I do not have to consider the ramifications of a re-instatement of the employee on the employment of the second Development Officer.

Having decided that re-instatement is not appropriate I now consider appropriate compensation in accordance with Section 31(1)(1B) of the Industrial Relations Act 1984.

Mr Daley submitted that six (6) months pay was the level of compensation that he considered justified if the Commission considered compensation was the only or appropriate remedy.

Mr Gates while opposing any remedy did submit that if I was to consider compensation then one (1) months pay was the maximum I should consider. The payment equating to the one (1) month trial period suggested by the employee in her "Strategy" document¹¹ and rejected by the employer.

Taking into account all of the relevant issues in coming to a decision in this matter, not limited to but including the following:

• the employees length of service (6 ½ months)

• the payments made to the employee on termination, all entitlements plus two weeks notice or pay in lieu of notice, plus a further two weeks pay (the "Conditions of Employment" document¹² provided for two weeks notice of termination)

• the length of time that I think would have been necessary to trial a new work arrangement

• the employee conceding that if a new working arrangement did not work out she would have to resign

• the undisputed good service of the employee.

I believe a payment to the employee of four (4) weeks pay to be an appropriate settlement of this matter and I make the following order.

ORDER

PURSUANT TO the powers conferred on me by Section 31 of the Act I HEREBY ORDER that, in full settlement of this matter Tasmanian Group Training Ltd, PO Box 447, Moonah, Tasmania pay Ms K. M. Sutton, 16 Elphin Road, Launceston, Tasmania an amount of money equating to four weeks pay at the salary rate paid to Ms Sutton at the time of her termination.

J G King
DEPUTY PRESIDENT

Appearances:
Mr M Daley (of Counsel) representing the applicant
Mr S Gates for the Tasmanian Chamber of Commerce and Industry Limited.

Date and place of hearing:
1997
September 29, 30
Hobart