T7146 - 12 May
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Michael Charles Hoskinson and Tamar Valley Wines
Industrial dispute - termination of employment - jurisdiction matter - arbitrated - jurisdiction found - continuation REASONS FOR INTERIM DECISION Introduction The applicant in this matter, Mr M C Hoskinson, was formerly an employee of Tamar Valley Wines (the Company). Mr Hoskinson said the Company employed him as a casual vineyard hand,1 a position he had held for the previous five weeks.2 On Wednesday 23 July 1997, he said he began work at the usual time of 8.00 am. At lunch time that day, it seems the supervisor, Ms C Mahoney, approached Mr Hoskinson and his fellow workers (among whom were the two independent witnesses in this matter, Mr Phillip Smith and Mr Steven George). She told them that, for the next 15 weeks, Friday "knock-off" time would be 4.00 pm (a 40-hour week) rather than 1.30 pm (a 38-hour week) as was the current practice.3 Mr Hoskinson apparently told Ms Mahoney that, nevertheless, on the coming Friday, he intended to "knock-off" at 1.30 pm instead of 4.00 pm. He said he did not get a chance to explain at the time because Ms Mahoney said she would "see about that" and walked off.4 According to Mr Hoskinson, he and his workmates then returned to work. However, he said, within about half-an-hour Ms Mahoney came back and "sacked a young fellow by the name of Shaun Geale and then walked straight over to me and said to me 'Instead of knocking off at 1.30 on Friday you can finish now'".5 Mr Hoskinson responded by walking off the vineyard accompanied, he said, by "another five guys that walked with me because [of] the way I was treated and the way Cheryl [Ms Mahoney] dismissed me".6 Mr Hoskinson, in applying to the President for a hearing pursuant to Section 29(1A) of the Industrial Relations Act 1984 (the Act), claimed reinstatement on the grounds that there was no reason for the Company to sack him because he was never told his work was unsatisfactory. Appearances Mr L Fulton appeared by leave of the Commission for Mr Hoskinson at the hearings of 24 November and 8 December 1997. Subsequently, on 3 April 1998, Ms R Holder, with the Commission's leave, lodged a supplementary written submission on Mr Hoskinson's behalf. Mr S McElwaine appeared by leave of the Commission for Tamar Valley Wines. In addition, he lodged a supplementary written submission, dated 19 December 1997. Contentions After hearing oral evidence tendered in support of Mr Hoskinson's application, Mr McElwaine submitted that the application is outside the Commission's jurisdiction.7 The undisputed evidence, he said, shows that between 1.30 pm and 2.00 pm on Wednesday, 23 July 1997 Ms Mahoney, in substance, told Mr Hoskinson that "if you want to finish ... at 1.30 next Friday, or on Friday, make this your last day". There was no oral response to this statement, either from Mr Hoskinson or from any other employee present at the time. There was, however, a physical reaction in that all five employees walked off the job without saying one word. There certainly was a termination of employment, Mr McElwaine submitted, but only one undertaken at the initiative of Mr Hoskinson and the other employees concerned. In that regard it is clear from the evidence that employee dissatisfaction was growing over matters such as toilets, sharpening facilities and Ms Mahoney's alleged attitude. However, Mr McElwaine said, all Ms Mahoney did on 23 July was issue a warning, ie "if you want to disobey our direction then consider yourself finished now". In reply, being presented with that choice, the employees, including Mr Hoskinson, just got up and left, thereby terminating their own contracts of employment. In the circumstances, Mr McElwaine contended, relying on the observations of Underwood J in Saarinen v University of Tasmania (1997),8 there was no termination at the initiative of the employer within the meaning of the ILO Convention.9 Accordingly, he submitted, there is no jurisdiction in the Commission to proceed further. Mr Fulton submitted that, on the evidence, Mr Hoskinson attempted to explain his reason for wanting to finish work early on the coming Friday, but he was cut short by Ms Mahoney. There is, he said, no doubt about what happened half-an-hour later. Ms Mahoney sacked Mr Geale (who was a member of the same pruning team as Mr Hoskinson) then went to Mr Hoskinson and told him, in so many words, that if he intended to finish early on Friday he might as well go immediately. In the circumstances, Mr Fulton contended, any reasonable person in Mr Hoskinson's position would conclude that his employer was dismissing him in addition to Mr Geale. Mr Hoskinson's position, Mr Fulton submitted, can only be understood by reference to what happened to Mr Geale. Mr Hoskinson's evidence is that, because of his employment experience at Comalco and his union involvement, he decided it was in his best interest to simply leave the workplace saying nothing, having concluded Ms Mahoney was dismissing him as well as Mr Geale. In the circumstances, Mr Fulton continued, it is nonsense to contend that Ms Mahoney did not dismiss Mr Hoskinson and it is ludicrous to think that he would walk off the job merely because Ms Mahoney spoke to him. Mr Hoskinson's understanding of his position, Mr Fulton argued, is supported by the fact that his five fellow workers, in leaving the workplace with him, believed that not only was he dismissed, but that, also, his dismissal was unjust. Considerations Although much of what happened at lunch time on 23 July 1997 is uncontested, it is nevertheless a convenient starting point. It is quite clear from the evidence that Ms Mahoney told Mr Hoskinson and other employees present at the time that, starting from the coming Friday, all would be working a 40-hour week. The new arrangements, she evidently said, would continue for the next 15 weeks.10 Apparently, during the preceding five weeks, the employees, Mr Hoskinson included, worked a 38-hour week, their obligation to the employer being to work a minimum of 152 hours per month.11 Mr Hoskinson's evidence is that, after hearing Ms Mahoney's direction, he told her that "I won't be working a 40 hour week this week. I'll be knocking off at 1.30".12 Ms Mahoney's response, according to Mr Hoskinson, was to effect that "I'll see about that".13 Mr Hoskinson said that, at the time, he did not have a chance to say anything (presumably by way of explanation) because Ms Mahoney straight-away told him (and the other employees) to go back to work.14 As far as the evidence discloses the facts, no other employee voiced any objection to Ms Mahoney's 40-hour week direction. In cross-examination Mr Hoskinson conceded he did not give Ms Mahoney any reason in support of his desire to "knock-off" at 1.30 pm on the coming Friday. He denied, however, that Ms Mahoney ever asked him for such a reason. He also denied that Ms Mahoney told them that he and his fellow employees were down on their hours for the month and that, if Mr Hoskinson in particular wanted to finish at 1.30 pm on the Friday in question, it would be his last day.15 Mr Smith's evidence regarding these events is that Ms Mahoney "didn't agree with" Mr Hoskinson's decision to "knock-off" at 1.30 pm on the coming Friday.16 Mr Smith also said Mr Hoskinson did not have a chance to offer a reason for wanting to "knock-off" early because Ms Mahoney "walked off".17 In cross-examination, he said Ms Mahoney did not ask Mr Hoskinson for his reasons or, if she did, he did not hear her do so. Although sitting next to Mr Hoskinson at the relevant time, Mr Smith explained that he was reading a contract he had been given to sign.18 Mr George's evidence, however, is somewhat different. He said Mr Hoskinson told Ms Mahoney that he had to "knock-off" at 1.30 pm on Friday. Before Mr Hoskinson could give any reason, Mr George recalled, Ms Mahoney replied "No, that's finished, it's not going on any more. It's just not on".19 In cross-examination he added that Ms Mahoney "didn't ask why [Mr Hoskinson wanted to "knock-off" at 1.30 pm], she got in a huff and walked off".20 It is difficult to know what to make of this evidence in the absence of any testimony from Ms Mahoney. However, it seems safe to conclude that Mr Hoskinson either told Ms Mahoney he would not work beyond 1.30 pm on the coming Friday or that he had to "knock-off" at 1.30 pm that day. In both cases it seems clear enough that, when she left the lunch time meeting, Ms Mahoney was unaware of Mr Hoskinson's reason for wanting to finish work early. All she apparently knew, on the basis of the evidence presently before me, is that, contrary to her direction, Mr Hoskinson was refusing to work until 4.00 pm on the coming Friday. The evidence concerning Mr Hoskinson's state of awareness is somewhat more consistent. The witnesses each used different words to describe what they believed Ms Mahoney said to Mr Hoskinson about his desire to "knock-off" at 1.30 pm on the particular Friday. However, in my opinion, the substance of their evidence, nevertheless, reflects a consistent theme. In short, Ms Mahoney did not accept Mr Hoskinson's decision, or request if he was actually asking for time off, to "knock-off" at 1.30 pm on the day in question. In my view Mr Hoskinson must have known, when Ms Mahoney left the lunch time meeting, that she did not agree with his expressed intention in that regard. There is no dispute as to what occurred next. About half-an-hour after the lunch time meeting, Ms Mahoney returned to the vineyard and immediately sacked Mr Geale, perhaps because his work was not up to standard.21 Mr Hoskinson's evidence suggests he was nearby when that event took place because he apparently knew of Mr Geale's dismissal at or about the time of its occurrence.22 It is also undisputed that, after dismissing Mr Geale, Ms Mahoney went directly to Mr Hoskinson. What she then actually said to him, however, is the subject of conflicting evidence. Mr Hoskinson, his evidence on this issue unshaken in cross-examination, said Ms Mahoney told him that "instead of knocking off [finishing]23 1.30 on Friday you can finish now".24 Mr Hoskinson apparently, although curiously, said "thank you" and then walked off without saying another word. In that action, Mr Hoskinson said, five other employees walked off with him "because of the way I was treated and the way Cheryl dismissed me".25 Mr Smith's evidence on the same point is that he heard Ms Mahoney say to Mr Hoskinson "If you was [sic] going to have your half-day Friday you may as well have it now and you're no longer employed with us".26 Mr Smith went on to confirm that, as far as he could see, Mr Hoskinson then just walked off. In cross-examination, however, when Mr McElwaine suggested to Mr Smith that, among other things, Ms Mahoney said to Mr Hoskinson words to effect that "I suggest that you finish at the end of today" Mr Smith's response was "I heard that".27 Mr George's evidence, in my opinion, does not differ in any substantial way from that of Mr Smith. He recalled hearing Ms Mahoney saying to Mr Hoskinson "Oh well, if you're going to knock off at 1.30 Friday, Michael [Mr Hoskinson], you might as well finish up today".28 He also said that, when Mr Hoskinson started walking off, followed by his five workmates, "none of us said anything in reply to her or anything, we just walked off".29 Mr George did not retreat from his recollections in cross-examination.30 I have no reason to disbelieve any of the witnesses concerning the evidence they gave about these events. However, in my opinion, regarding what Ms Mahoney said to Mr Hoskinson, the more reliable evidence is that of witnesses Smith (his comment in cross-examination notwithstanding) and George. Both individuals are independent witnesses in the sense that they cannot benefit from the outcome of Mr Hoskinson's application. Their evidence also displays an element of consistency. Mr Hoskinson, on the other hand, has a strong personal interest in actively promoting his application. In such circumstances one might reasonably expect that, while being at all times truthful according to his recollection, he would nevertheless tend to present his oral evidence in a manner that he considered best supported his own case. In my view that attitude, most likely, is the reason why Mr Hoskinson's evidence differs from that of witnesses Smith and George on the relevant issue. For those reasons, I find that the evidence of witnesses Smith and George, rather than that of Mr Hoskinson, more believably reflects what Ms Mahoney actually said to Mr Hoskinson at the time of the alleged dismissal. Mr McElwaine, in his written contentions of 19 December 1997, submitted that should I make such a finding, the Commission is then without jurisdiction because: "This was not a termination at the initiative of the employer. A choice was given to the employee as to what he wished to do." Or, in other words: "Mr Hoskinson was presented with a choice and he elected to terminate his own employment by his conduct (but not his words)." Mr McElwaine's submission in this regard rests on the use by witnesses Smith and George of the word "if" when describing what they believed Ms Mahoney said to Mr Hoskinson, ie. "if you was [sic] going to have your half-day Friday..." and "if you're going to knock off at 1.30 Friday...".31 Mr McElwaine's central contention here appears to be that phrases conditioned by use of the word "if" are necessarily, by that fact alone, conditional statements that predicate the availability of an option or a choice. I will return to this point later. Ms Holder, in rebuttal, contended in her written submission of 2 April 1998 that: "Even if the Commission were to prefer the evidence of Messrs George and Smith ... there is still no evidence of a termination of employment by the employee. If the words allegedly stated by the supervisor are reasonably construed it is clear that the applicant was not given a choice as to his employment. At lunch time on 23 June [sic] 1997 the applicant stated his position, which in substance was - I am finishing work at 1.30 pm on Friday. Later on in the day the supervisor accepts the applicant's stated position and dismisses the applicant. In essence, the supervisor is stating - if that is your position (which the applicant has already stated it is, and the supervisor knows it to be) then you can leave now. This is a termination of employment at the initiative of the employer." In my view, there is some substance to this submission. In the first place, it is clear from my earlier observations what was in the parties' minds at the relevant time. In Ms Mahoney's case, she knew that "contrary to her direction, Mr Hoskinson was refusing to work until 4.00 pm on the coming Friday".32 Mr Hoskinson, for his part, "must have known, when Ms Mahoney left the lunch time meeting, that she did not agree with his expressed intention in that regard".33 In addition, just before speaking to Mr Hoskinson, Ms Mahoney dismissed Mr Geale, evidently within sight and hearing of Mr Hoskinson, who was nearby.34 Furthermore, there is the evidence of witnesses Smith and George, who each said that, according to their recollections, Ms Mahoney dismissed Mr Hoskinson.35 Returning to Mr McElwaine's written submission, it is arguable that Ms Mahoney's apparent use of "if" is not free from doubt, since the word contains many latent ambiguities. For example, it "is often used as a substitute for 'whether', with the implicit meaning of 'whether or not'.36 It is instructive to apply such a meaning to the circumstances of the present case by substituting the word "if" in the relevant evidentiary statements of witnesses Smith and George with the words "whether or not". That is to say, in the case of witness Smith "[whether or not] you was [sic] going to have your half-day Friday you may as well have it now and you're no longer employed with us". In the case of witness George, the substituted phrase would be "Oh well, [whether or not] you're going to knock off at 1.30 Friday, Michael, you might as well finish up today". Seen in this light, the meaning of what witnesses Smith and George believed Ms Mahoney said is not necessarily that for which Mr McElwaine contended, but one that accords closely to that for which Ms Holder argued. In summary, the state of the parties' minds at the relevant time and the belief of witnesses Smith and George that Ms Mahoney dismissed Mr Hoskinson, when taken together with the latent ambiguity present in the word "if", satisfy me that Ms Mahoney's real intention was not to offer Mr Hoskinson a choice or an option. Rather, in my opinion, the more believable explanation of her actions is that she intended to convey to Mr Hoskinson that "whether or not" he elected to work until 4.00 pm on the coming Friday, he could finish immediately. I accordingly reject the submission of Mr McElwaine on this point and uphold that of Ms Holder. Having regard to all the considerations discussed above, I find that Mr Hoskinson's dismissal on Wednesday 23 July 1997 constituted a termination of employment at the initiative of the employer. Consequently, there being jurisdiction in the Commission to proceed further with this matter, my Associate will contact the parties in due course to arrange a continuation.
B R Johnson Appearances: Date and place of hearing: 1 Transcript 8/12/97, p. 14. |