T7621
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Pamela Jean Longstaff and The Victorian Company
Termination of employment - dismissal unfair - reinstatement impractical - compensation ordered REASONS FOR DECISION Introduction On 26 March 1998, Mrs P J Longstaff applied to the President for a hearing pursuant to Section 29(1A) of the Industrial Relations Act 1984 concerning her alleged unfair dismissal on 18 March 1998. The respondent former employer is The Victorian Company Pty Ltd trading as Rose Cottage Medical Centre (Rose Cottage) who employed Mrs Longstaff as a medical receptionist. Background In her oral evidence, the applicant alleged that the following facts and circumstances surrounded her dismissal.1 Mrs Longstaff began her period of employment with Rose Cottage in January 1993. She described herself as a "permanent casual" who worked 20-40 hours per week according to a roster. Her rate of pay was $12.50 per hour. Mrs Longstaff said she was very competent in all the work skills required of her and that she got on well with other medical centre staff. In Mrs Longstaff's opinion, the events leading up to her termination of employment began at a practice meeting held in the Royal Hotel during either June or July 1997. Rose Cottage apparently held practice meetings on a regular basis and encouraged staff to speak out for purposes of improving the practice. Among those present at the meeting was Dr Victoria Taylor, the principal proprietor of the Victorian Company Pty Ltd. According to Mrs Longstaff, the office staff had been working under a great deal of stress for some time. By way of explanation, she said she returned one week early from annual leave (March 1997) because the practice manager (Ms S Everett) was on restricted duties as the result of a back injury. About the same time, Mrs Longstaff said, her personal circumstances worsened in that her mother became ill and subsequently passed away in May 1997. Believing she was expressing the views of all office staff, Mrs Longstaff decided to speak out at the practice meeting about work pressure. According to her recollection she said:2
At the time, according to Mrs Longstaff, Dr Taylor's response was that nothing would change. One or two days after the practice meeting Dr Taylor evidently spoke privately to Mrs Longstaff. According to the latter, Dr Taylor gave her "a dressing down for about an hour on how dare I bring up an issue like that at a practice meeting".3 Mrs Longstaff said she tried, without success, to convince Dr Taylor that the staff had a valid reason for raising the matter. In particular, she explained, there was not enough staff to cope with the workload. However, Mrs Longstaff recalled, Dr Taylor suggested she may have had too many whiskies to drink4 before the practice meeting or perhaps was having difficulty coping with the loss of her mother. Mrs Longstaff said she then sought the assistance of the practice manager, Ms Everett. According to Mrs Longstaff, Ms Everett apparently confirmed that Dr Taylor's continual buzzing of the front desk was very distressing for staff having regard to their workload. Dr Taylor evidently again disagreed. Mrs Longstaff said the practice manager then invited another Doctor engaged in the practice-Dr M O'Sullivan-to join the discussion. It seems, from what Mrs Longstaff said, that Dr O'Sullivan agreed that Dr Taylor "was quite a demanding person and that she created a lot of extra work within the practice".5 After that discussion and about a week before her dismissal, Mrs Longstaff said, Dr Taylor again spoke to her about the work situation. On that occasion, it seems the subject apparently concerned a disagreement that occurred between Mrs Longstaff and a temporary employee-Ms B Cooper-whom the practice engaged to accommodate staff absences. After asking her to explain the circumstances, Mrs Longstaff said Dr Taylor simply told her to go back to her work and get on with it. A week later, on the following Wednesday (18 March 1998) according to Mrs Longstaff, Dr Taylor spoke to her after work. That discussion, according to Mrs Longstaff, ended with her dismissal by Dr Taylor. Contentions D Durkin for the applicant: Up to the time of her dismissal on 18 March 1998 the practice rostered Mrs Longstaff on a regular basis to work an average of 30 hours per week. Consequently, on a proper interpretation of the Medical Practitioners (Private Sector) Award, Mrs Longstaff was not a "permanent casual" but a permanent part-time employee. Mrs Longstaff's relationship with Dr Taylor suffered a serious blow when, at the mid-1997 practice meeting, she raised on behalf of all staff the issue of under-staffing. Dr Taylor did not recover from that event or the subsequent meeting because she evidently felt let down by Mrs Longstaff. That feeling tainted all future dealings between employer and employee. However, there was no good reason for Dr Taylor's belief. At the end of the meeting with Mrs Longstaff and others, it was "agreed that when there were three doctors on, then we would in future have three staff members on".6 An employer has an obligation to warn an employee about a pending dismissal. Dr Taylor's observation that "as far as I know you're not allowed to threaten someone with loss of their job"7 is unbelievable in contemporary society. There is no suggestion in the evidence of Ms Everett, the practice manager, that she communicated to Mrs Longstaff even a hint of pending dismissal. Mrs Longstaff was left to read into her conversations with Dr Taylor and Ms Everett that dismissal might be a possibility. The evidence is that Mrs Longstaff got on well with other staff and was competent at her work. There is no evidence to the contrary other than Dr Taylor's generalisations. In particular, the Commission must question Dr Taylor's evidence that Mrs Longstaff "was a burden on other staff"8 and that "other staff were carrying her, covering up for her and trying to make it easier"9. Ms Everett's evidence, to the contrary, is that "I couldn't say that she was being carried".10 Dr Taylor's evidence suggests she believed Mrs Longstaff suffered from depression.11 If Dr Taylor, as a medical practitioner, had formed the opinion that Mrs Longstaff was truly depressed then, as the employer, she should have done more than she did to deal with the issue. Reinstatement is the appropriate remedy in all the circumstances. However, following her dismissal Mrs Longstaff became unwell and is receiving treatment from a medical specialist. For that reason some form of rehabilitation, having regard to the advice of that specialist, should accompany reinstatement. If the Commission should find that reinstatement is impractical, an order by way of compensation for $8000 would be appropriate. Bearing in mind that Mrs Longstaff was a permanent employee averaging 30 hours' work per week at an hourly rate of $12.50, such an order would comprise:
S B McElwaine for the respondent: Mrs Longstaff was not a part-time employee. Her Time and Pay Book13 shows that starting and finishing times are all over the place. There is no consistent starting and finishing pattern. In addition, the practice offered Mrs Longstaff permanent part-time work, which she declined because she would lose her 20 per cent casual loading.14 However, Mrs Longstaff expressly agreed to remain a casual employee and that is how she described herself in the present application. There is no doubt Mrs Longstaff was an efficient and trusted employee for a considerable period. However, when she first learned of her mother's illness her attitude changed and became worse following her mother's death about 18 months ago. Dr Taylor's opinion as a medical practitioner, not challenged in cross-examination, was that Mrs Longstaff suffered from depression.15 According to the evidence, Mrs Longstaff's depression affected not only her personal relationship with Dr Taylor but her work capacity, conduct and performance. For example:
Dr Taylor had to continually remind Mrs Longstaff that her duties included assisting her personally. Mrs Longstaff's response to Dr Taylor's requests, however, was to do them "with grumpiness", refuse to do them or find excuses for not doing them.19 The evidence is that Dr Taylor spoke to Mrs Longstaff about her problems. Although denied by Mrs Longstaff in her evidence, there was no challenge in cross-examination to Dr Taylor's evidence that, following the practice meeting, she said things to Mrs Longstaff such as:20
Mrs Longstaff did not improve. Her fundamental failure lay in an inability to recognise that the problem was hers alone and not the fault of everyone else. The temporary employment of Ms Cooper provides further evidence of Mrs Longstaff's inability to see that she needed help. The evidence of Dr Taylor and Ms Everett, contrary to that of Mrs Longstaff, is that Ms Cooper was highly skilled, experienced and could do the work required of her by the practice. The problem was simply that Mrs Longstaff would not allow Ms Cooper to do her job. The inference available from that evidence is that of a continuing failure on Mrs Longstaff's part to recognise that she had a problem.21 Dr Taylor offered, but Mrs Longstaff declined time off work to try to overcome her depression. The evidence shows that Dr Taylor and other staff members went out of their way for 18 months to accommodate Mrs Longstaff's falling performance and moodiness.22 The evidence also shows that Dr Taylor did not form a view beforehand that she should dismiss Mrs Longstaff on 18 March 1998. To the contrary, Dr Taylor did everything she could for 18 months to avoid taking that action. Clearly Dr Taylor had a valid reason for dismissing Mrs Longstaff because her personal problems were affecting her work performance. However, for 18 months Dr Taylor counselled, spoke to and treated Mrs Longstaff with deference about her work capacity, conduct and performance. In the end, in the absence of any improvement, she found she could not let the situation continue any longer. At the meeting of 18 March 1998, Dr Taylor did not specifically say to Mrs Longstaff that "if you don't do 'X', 'Y' and 'Z' before such and such a date I will terminate your employment".23 However, 18 months of counselling constituted a fair opportunity for Mrs Longstaff to defend herself in the circumstances. In addition, Ms Everett, the practice manager, told Mrs Longstaff that "if she didn't feel she could do that [the jobs that Dr Taylor was asking her to do] then she had to look at whether she was happy working here".24 Nevertheless, even at the 18 March meeting, Dr Taylor gave Mrs Longstaff a further opportunity to admit to her problems by asking if she was unhappy at work. Upon receiving her denial, Dr Taylor saw no point in keeping Mrs Longstaff on because of her continuing refusal to admit that she had a problem. Had Mrs Longstaff made such an admission, however, Dr Taylor's evidence is that her response would have been very different.25 There is an inference in the applicant's submissions that Dr Taylor dismissed Mrs Longstaff for a prohibited reason, ie because of illness.26 If that is the applicant's actual submission, it has no substance. Dismissing a person because illness affects their capacity, conduct or ability to do their job is not the same as dismissing a person because of illness.27 In the present matter Mrs Longstaff's depression related directly to her ability to do her job because, on Dr Taylor's evidence, the practice needed happy, outgoing, positive receptionists.28 Dr Taylor did not dismiss Mrs Longstaff because of illness. Mrs Longstaff's evidence on cross-examination is that reinstatement would be unsuitable because she no longer felt she could get along with Dr Taylor. The evidence discloses that there is a clear breakdown of mutual trust and confidence between Dr Taylor and Mrs Longstaff. Consequently, reinstatement would cause workplace difficulties. In addition, reinstatement of Mrs Longstaff would necessarily mean the loss of a job for another employee. Mrs Longstaff's reinstatement, in all the circumstances, is impractical. Mrs Longstaff's 18 months' period of counselling gave her reasonable opportunity to defend herself. However, should the Commission find Mrs Longstaff's dismissal was unfair because Dr Taylor did not give her an opportunity to defend herself on 18 March 1998, the circumstances of the case do not justify an award of substantial compensation. If there was such a breach of Article 7 of the ILO Convention,29 it was only a technical breach. That is because there was little likelihood of Mrs Longstaff's employment continuing, even if Dr Taylor had afforded her a specific opportunity to defend herself. In those circumstances, it is unlikely Mrs Longstaff would have done other than continue to reject the fact that she had a problem. In such cases the former Industrial Relations Court of Australia awarded only nominal compensation-see, for example, Davis v Portseal Pty Limited30 and Kenefick v The Australian Submarine Corporation Pty Ltd.31 There was no evidence led regarding the applicant's financial position following her dismissal or about the likelihood of her finding alternative employment. In the circumstances, there is no basis to award ten weeks' compensation, which is clearly a figure plucked out of the air.32 Findings I begin my consideration of the issues in this matter with the question of whether Dr Taylor had a valid reason for dismissing Mrs Longstaff. The relevant provisions of the Act in that regard are Section 31(1A) and Article 4 of Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer (the ILO Convention). Article 4 provides that:
There was no suggestion by either party that Mrs Longstaff's dismissal related in any way to the employer's operational requirements. Mrs Longstaff's primary contention is that Dr Taylor did not dismiss her because of reasons related to her "capacity or conduct". Rather, Mrs Longstaff's allegation, in effect, is that Dr Taylor dismissed her simply because she disapproved of the manner in which Mrs Longstaff raised the under-staffing or "work pressure" issue at the mid-1997 practice meeting.33 In my view Mrs Longstaff's emphasis on the under-staffing issue tends to obscure what I believe was the real nature of her grievance-the provision of personal services to Dr Taylor.34 Mrs Longstaff's primary evidence is that she was unsuccessful in her attempt to convince Dr Taylor of the staff's genuine concern about work pressure.35 In cross-examination Mrs Longstaff described the nature of that work pressure as twofold, ie "we were overworked and understaffed and still expected to do personal jobs above surgery jobs".36 As to under-staffing, the evidence of Dr Taylor and Ms Everett is that the practice agreed within days of the particular practice meeting to introduce relevant changes.37 In cross-examination, Mrs Longstaff ultimately acknowledged those changes.38 In the circumstances, the weight of the evidence before me clearly establishes that Dr Taylor responded quickly and effectively to Mrs Longstaff's complaint concerning under-staffing. As to the issue of personal services, however, the evidence is entirely unambiguous.39 Dr Taylor told Mrs Longstaff that nothing would change. During the course of her evidence Mrs Longstaff relied heavily on the assertion that, regarding the concerns she expressed at the practice meeting about Dr Taylor's personal demands, "all the office staff felt the same way".40 Mrs Longstaff's point in this regard was that "I thought I was treated unfairly when ... it was the opinion of all the office workers".41 Mr Durkin did not call any other staff member to corroborate Mrs Longstaff's contention, although the evidence is that all staff were present at the mid-1997 practice meeting.42 Ms Everett's evidence tends to confirm that the practice staff shared Mrs Longstaff's concern about stress and the possible need to increase staff.43 Furthermore, Ms Everett acknowledged that other staff had complained to her about Dr Taylor,44 although whether that was about work stress or Dr Taylor's personal demands is not clear. In the circumstances, since it does no mischief to the respondent's case to do so, I am willing to assume that all staff shared Mrs Longstaff's views about performing personal services for Dr Taylor. However, Ms Everett's further evidence is that shortly after the meeting with Dr Taylor, she spoke to Mrs Longstaff. As a result of that discussion Ms Everett's recollection is that:45
Even if my assumption about other staff members sharing Mrs Longstaff's views is correct, there is no evidence at all that they continued to hold that view following the staff changes referred to by Ms Everett. Despite those staff changes, Mrs Longstaff did not change her attitude towards providing the personal services required by Dr Taylor. Mrs Longstaff's evidence in cross-examination reflects her position, ie "In substance she [Dr Taylor] wasn't going to ease up on any of the personal demands".46 Clearly Mrs Longstaff distinguished between "personal jobs" and "surgery jobs".47 For example, she did not like performing tasks that, in her view, were not work related;48 she would only take patients to Dr Taylor's room when she was able;49 she believed she probably did not have time to do the personal tasks requested of her by Dr Taylor;50 she repeatedly told Dr Taylor that she had not done a personal task or that she did not have the time to do it;51 and she had problems with Dr Taylor's personal attitude.52 Throughout the course of her evidence Mrs Longstaff continued to emphasise that she was presenting a staff view, that she did not resent doing personal tasks for Dr Taylor, and had never refused to perform such tasks. I will come back to these points at a later time. For the present, however, there is a need to establish the basis upon which Dr Taylor requested personal services from the practice staff. In the first place Dr Taylor is the principal proprietor of the Rose Cottage medical practice.53 The evidence on cross-examination is that for over four years Mrs Longstaff "put up with Dr Taylor's demands" without confrontation.54 Although having performed personal services for Dr Taylor for that period, Mrs Longstaff nevertheless initially denied they were part of her job description.55 Later on, however, she agreed that they were part of the job "while we were fully staffed".56 At the end of Mr McElwaine's cross-examination I put a series of questions to Mrs Longstaff concerning this matter, of which the following is an abbreviated extract:57
Mrs Longstaff's evidence makes it abundantly clear that: · she implicitly accepted Dr Taylor's authority to ask practice staff to perform personal services; · she performed those tasks for over four years without complaint to Dr Taylor; · she was aware of and acknowledged Dr Taylor's direction that, as a matter of priority regarding Dr Taylor's personal requests, she was to "leave the patients standing at the front desk"; and · she was aware of and in no doubt about what Dr Taylor required of her by way of personal services. However, notwithstanding that she fully understood what Dr Taylor required of her and contrary to her employer's directions, Mrs Longstaff continued to persist in distinguishing between "personal jobs" and "surgery jobs". Clearly, Mrs Longstaff held the view that "personal jobs" were not work related even though, in that regard, Dr Taylor had made it very plain they were part of her day to day duties. While I note Mrs Longstaff's evidence that she neither resented nor refused to perform a personal task for Dr Taylor, the evidence shows, nevertheless, that she certainly resisted doing those tasks in favour of "surgery jobs". For example, Mrs Longstaff's attitude appears clearly in the following exchange with Mr McElwaine, cross-examining:58
Mrs Longstaff's attitude also reflects in the evidence of Ms Everett. Mr McElwaine, during examination-in-chief, asked her:59
The evidence comes down to this. Mrs Longstaff, while not expressly refusing to perform Dr Taylor's personal tasks, nevertheless assigned priorities to her work that were inconsistent with those directed by her employer. Mrs Longstaff was aware of her employer's priorities but still insisted on putting "surgery jobs" before the "personal jobs" of the surgery's proprietor. In so acting Mrs Longstaff, in my opinion, made a grave error of judgment in that she put herself in a position of direct conflict with her employer. I now return to Mrs Longstaff's conviction that her attitude at all times represented the views of the whole practice staff. Mrs Longstaff relied heavily on that conviction in support of her actions. Even if that view was correct for the period leading up to the staff changes that occurred following the mid-1997 practice meeting, there is no evidence corroborating Mrs Longstaff's implied assertion that it continued beyond that time. Certainly, even though they were evidently available, Mr Durkin did not call any other staff member to give evidence for that purpose. Ms Everett's evidence, however, is that she believed "we had resolved the issues".60 Ms Everett is the practice manager. As such, in my opinion, she is the person at Rose Cottage most likely to be aware of staff feelings. For that reason I prefer her direct evidence to that of Mrs Longstaff which, on this point and without corroboration, was merely an expression of opinion. In the circumstances, I cannot see how the views held by other staff members (if they did hold those views) act to assist Mrs Longstaff in her present situation. I take that approach because the best evidence is that those views did not obtain following the staff changes. Having regard to all the evidence I find that, pursuant to Article 4 of the ILO Convention, Dr Taylor had a valid reason to dismiss Mrs Longstaff on grounds connected with her capacity or conduct. Those grounds, in my view, comprised two elements. First, Mrs Longstaff insisted on assigning priorities to her work that were inconsistent with those directed by her employer (Dr Taylor). Second, she demonstrated and admitted a continuing reluctance to perform personal services for Dr Taylor. In the circumstances, I do not find it necessary to consider the question of Mrs Longstaff's alleged personal difficulties, upon which Mr McElwaine also relied. Mr Durkin submitted in the alternative, in effect, that if there was a valid reason for Mrs Longstaff's dismissal, Dr Taylor denied her procedural fairness by not forewarning her of impending dismissal. For that purpose the relevant provisions of the Act in that regard are Section 31(1A) and Article 7 of the ILO Convention, ie:
No party suggested it was not reasonable for Dr Taylor to provide Mrs Longstaff with such an opportunity. Mr McElwaine's primary position is that Dr Taylor did everything she could for 18 months to avoid dismissing Mrs Longstaff. That period of counselling, he said, constituted a sufficient opportunity for Mrs Longstaff to defend herself. Mr McElwaine also relied on Ms Everett's counselling of Mrs Longstaff to effect that, if she felt she could not do some of the jobs required by Dr Taylor, Mrs Longstaff might reflect upon whether she was happy working at Rose Cottage.61 In my opinion the 18 months' period was exactly as Mr McElwaine described it, a period of counselling. It is also my view that Ms Everett's remarks to Mrs Longstaff were merely advisory and nothing more. There is simply no evidence before me that is capable of supporting the proposition that either Dr Taylor or Ms Everett ever told Mrs Longstaff in clear terms that she might lose her job if she did not change her attitude. Even at the time of dismissing Mrs Longstaff, Dr Taylor did not at first put the position plainly to her employee. Mrs Longstaff had to ask "are you actually saying that you're sacking me", before she got a clear expression from Dr Taylor of her intentions.62 There was also some suggestion by Mr Durkin in the course of his cross-examination of Dr Taylor63 and Ms Everett64 that they, with Dr O'Sullivan, actually decided to dismiss Mrs Longstaff before the meeting of 18 March. If that line of questioning amounts to an implied submission to that effect then I reject it. The uncontested evidence of Dr Taylor is that the persons concerned merely decided to hold a meeting with Mrs Longstaff to see if she would admit to what they saw as being her work related problems.65 In the circumstances I find that, contrary to Article 7 of the ILO Convention, Dr Taylor dismissed Mrs Longstaff for reasons related to her conduct or performance before she gave her an opportunity to defend herself. I now turn to the question of remedy. Mr Durkin sought reinstatement for Mrs Longstaff, subject to certain conditions regarding her personal health. The evidence shows that Mrs Longstaff believed she got on very well with other staff.66 I have no reason to disbelieve that evidence as to its generality. Concerning her relationship with Dr Taylor, however, a long period of apparently amicable association preceded an 18 months' period of strained communication that ended with Mrs Longstaff's dismissal. Mrs Longstaff's evidence is that, by that time, she and Dr Taylor no longer got on well together.67 By itself that breakdown, in Mr McElwaine's terms of mutual trust and confidence, might not be sufficient to dissuade the Commission from ordering reinstatement in appropriate circumstances. A similar observation might also apply to Mr McElwaine's further ground that Mrs Longstaff's reinstatement would result in another employee's loss of a job. In this case, however, there is an additional factor that is decisive of the issue. That is the fact that for a long period of time, although aware of her employer's requirements, Mrs Longstaff assigned priorities to her work that were inconsistent with those directed by her employer. In so acting she demonstrated an ongoing reluctance to perform personal services for Dr Taylor. According to the evidence, Mrs Longstaff never once, either during the long counselling period, on the day of the dismissal, or in these proceedings, showed any willingness to accommodate Dr Taylor by performing the required personal services according to her employer's wishes. From beginning to end, it seems to me, Mrs Longstaff insisted on working according to her own priorities rather than those of Dr Taylor. For those reasons I believe reinstatement of Mrs Longstaff would only serve to recreate the very circumstances that led to her dismissal in the first place. As a consequence I find that reinstatement of Mrs Longstaff is impractical. Turning now to the question of compensation, Mr Durkin quantified Mrs Longstaff's claim as $8000.68 Mr McElwaine, however, submitted that if there was a breach of Article 7 of the ILO Convention-which he did not concede-it was only a technical breach of the kind referred to in Davis and Kenefick. Accordingly, the Commission should only award nominal rather than substantial compensation. That is because there was little likelihood of Mrs Longstaff's employment continuing, even if Dr Taylor had given her an opportunity to defend herself at the time of dismissal. Where the Commission finds that a dismissal was unfair and reinstatement is impractical, it may, if of the opinion that it is appropriate to do so:
In my opinion the facts of the present case show that it is appropriate to make an order for compensation. That is because Section 31(1A) of the Act and Article 7 of the ILO Convention operate to vest a right in employees not to be dismissed before being given an opportunity to defend themselves. In the current matter Dr Taylor breached that statutory right. That breach, in my view, entitles Mrs Longstaff to vindication by way of compensation. What amount of compensation should the Commission order? To answer this question it is necessary to consider what might have happened had Mrs Longstaff received an opportunity to defend herself. The relevant circumstances of this case, as mentioned already, are that for a long period Mrs Longstaff "demonstrated an ongoing reluctance to perform personal services for Dr Taylor".70 Mrs Longstaff continued with that attitude notwithstanding that Dr Taylor, on many occasions, made her requirements to the contrary clearly known. Mrs Longstaff's evidence is that she understood those requirements. Nevertheless, she maintained her reluctance to perform Dr Taylor's personal services in that she either did not do them or pleaded that she did not have time to do them.71 Those circumstances strongly suggest to me that, even had Dr Taylor given Mrs Longstaff an opportunity to defend herself at the time of dismissal, a change of attitude on Mrs Longstaff's part was very unlikely. The evidence of what occurred in this regard at the time of dismissal tends to support my conclusion. While there are some minor differences between Mrs Longstaff and Dr Taylor on this point-due no doubt to the ordinary frailties of human memory-their evidence does not differ in any material sense. What is clear is that there was no real discussion between Dr Taylor and Mrs Longstaff at the meeting. Mrs Longstaff simply denied being unhappy and that she was not coping. Even after Dr Taylor finally told Mrs Longstaff of her impending dismissal, she apparently made no effort to speak in her own defence. In the circumstances, even had Dr Taylor given her a clear and specific opportunity to defend herself at the time of dismissal, it is quite unlikely, in my opinion and having regard to the history of the parties' more recent relationship, that Mrs Longstaff would have made the admissions necessary to ensure her continued employment beyond 18 March 1998. For the above reasons I accept Mr McElwaine's submission that compensation should be nominal rather than substantial. For that reason I see no need to attempt to determine the issue that arose between the parties during the hearing, but which they did not fully argue, as to Mrs Longstaff's employment status, ie permanent part-time or casual. Having regard to all the facts and circumstances I assess appropriate compensation at the sum of $750. ORDER PURSUANT TO the powers conferred on me by Section 31 of the Act I HEREBY ORDER that the respondent employer, The Victorian Company Pty Ltd trading as Rose Cottage Medical Centre, 5 Innes Street, Launceston, Tasmania pay to the applicant, Mrs Pamela Jean Longstaff, formerly of 263 Relbia Road, Relbia but now of 15 Lavender Grove, Summerhill, Tasmania the sum of Seven Hundred and Fifty Dollars exactly ($750) on or before the close of business on Friday, 2 October 1998.
B R Johnson Appearances: Date and Place of Hearing: 1 Transcript 6/7/98, pp. 2-14. |