T7725
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Joanne Catherine Ross and All Bar One Gastrodome
Industrial Dispute - re Termination of employment - Finding of dismissal - payment of notice period ordered REASONS FOR DECISION At the outset of proceedings in this matter three (3) issues were in dispute between the parties, however, after initial conciliation discussions Mr Durkin appearing for the applicant advised me that two issues had been resolved. Those matters were a claim for underpayment of wages and superannuation contributions. The remaining issue, an alleged termination of employment of Ms Joanne Ross (the Employee) was not resolved. Evidence and submissions in this matter were therefore directed to the alleged unfair termination of employment of the Employee from All Bar One Gastrodome. Mr Durkin described the issue between the parties as follows:- "Mr Durkin And the third issue, the one which we didn't reach agreement on . . . . . . and it's as to whether or not there was a termination, whether actually termination took place, we would request the commission to determine that and if there was a termination what would be the appropriate amount of notice or either by virtue of an instrument or a contract, what would be the appropriate notice in the circumstances and we will both lead argument on both those issues through our respective witnesses."1 The evidence of the Employee was that she was employed at the All Bar One Gastrodome from 14 February 1998 and her last day of work was for a short period on 6 May 1998. The initial period of employment (approximately two weeks) was as a casual and from then on the employment was full time as an Assistant Manager. This was not contested by the Employer. Considerable debate and evidence in this matter went to the contract of employment and whether or not the employment of the Employee was under the provisions of an enterprise agreement. An Enterprise Agreement for the All Bar One Gastrodome was approved on 16 January 1998 and registered on 2 February 1998. It had effect from 19 January 1998, with a life of three (3) years. Part of the evidence of the Employee on this matter is recorded as follows:- "Mr Durkin xn Had you ever been given a copy of the enterprise agreement?............ No. Were you aware it existed?............ Yes, I was aware it existed but I didn't think I was part of it. Why would you think that?............ Because when Brendon said we want to put you on to full-time, I said, `Well, you know, I'll get a contract won't I?' And he said, `Yes.' You understood that to mean that you wouldn't be covered by the enterprise agreement?............ Yes, I thought that I was going to have you know, my own contract because I was in a managerial position."2 The primary evidence of Mr Stephen Bourke one of the joint owners of the All Bar One Gastrodome on this issue is as follows:- "Mr Brown xn And as Ms Ross was an employee from the 14th and then her employment status changed in early March - approximately - was it your impression that Ms Ross would be covered by the enterprise agreement that All Bar One had initiated with respect to all its employees?............ We believe currently that everybody is covered by it - that was the intention of it - and that was the understanding that whilst it was being prepared and the people who prepared it for us gave us. So, yes."3 This issue is critical to any finding I might make in this matter going to termination of employment and notice periods. On the evidence before me there is no doubt in my mind that the Employee was in fact covered by the Enterprise Agreement for the duration of her employment. Having determined that the Employee was in fact covered by the Enterprise Agreement I will decide other issues where appropriate in accordance with the provisions of the Agreement. Before going to those issues I feel it important I make an observation in relation to the Enterprise Agreement. It gives me great concern that the Employee in this case did not know she was employed under the provisions of an Enterprise Agreement. This fact should have been made very clear to her at the outset of her employment and she should have had access to if not provided with a copy of the Agreement. The alleged termination of the Employee occurred in the following circumstances. The Employee in her evidence indicated that she had been consistently working long hours (on average 52, 53 per week)4 and had on one occasion asked one of the owners how much longer this was going to continue? Some time later on Sunday 3 May 1998 Mr Stephen Bourke advised her by telephone that he could only find thirty (30) hours per week for her into the future. The Employee requested and was granted a face to face meeting with Mr Bourke to discuss this development the following day. Her evidence of that meeting is:- "Mr Durkin xn Monday you met with him?............Mm. And what occurred there?............ He told me that, you know, as it was getting quieter he couldn't find enough hours for me and he reiterated what he'd said that night before - 30 hours - and this is to the best of my knowledge. Yes, just as you recollect?............ Okay. ............ I said that's your prerogative to do that but I believe you have to give me two days' notice on my full-time position. And I also asked him - I said, `Can you assure me of 30 hours' - oh, that's right - 30 hours at $15 an hour - which is less than what I was making, and when I asked him if he could assure me of the 30 hours he said, `No'."5 and "Mr Durkin xn Well bring us forward again. What occurred after the meeting with - that would have been the 3rd - on the Monday?............ Well, when - I"d better finish the story - and then when I asked Stephen, I said, well look, you'll have to pay me out because I wasn't obviously very happy with not even being assured of the 30 hours - he just got up and walked out and said the meeting is over."6 Mr Durkin in summarising the evidence on this issue submitted as follows:- "Our submission, sir, is that in our evidence and certainly evidence that hasn't been contradicted, there's been no substantive reason given for a reduction from full-time employment - permanent employment - as assistant manager to a part-time position, and in fact we rely not only on the lack of contradictory evidence but we also rely on the 6th May exhibit D.2, and in that, the third paragraph, a statement from Stephen and Brendon Bourke to the effect, and I quote: We were keen for you to adopt a permanent part-time position. Their own documentation supports the fact, in our view, that it was an intention and that intention was communicated for the hours to be reduced and we contend to be reduced to 30 hours. In doing so, we would maintain that that is a fundamental change in the contract and fundamental to the extent that it amounts to a termination, a constructive dismissal, if you like."7 Mr Brown for the Employer contended and was supported by the evidence of Mr Bourke that at no time was the Employee terminated. That it was in fact the actions of the Employee that have led to this matter being before the Commission. It was acknowledged by the Employer that discussions took place over a possible reduction in hours for the Employee, this was also confirmed by Ex. D.2. However, it was denied by Mr Bourke that he advised the Employee that her hours would be reduced to thirty (30) per week. Part of his evidence reads:- "Mr Brown xn So in terms - was there ever any mention by yourself or anyone else, that you're aware of, in regards to the fact that this 30 hours would be the figure that was floated about?............ Well, that's a figure that I - a pie in the sky as far as I'm concerned. So you have no recollection of making a statement in regards to the hours of Ms Ross in the future being 30 or less?............ Well, we didn't have an opportunity to discuss any final hours because the meeting didn't - the discussion didn't end anywhere - it didn't go anywhere. So there was no concrete conclusions reached. So at the conclusion of that meeting then, essentially there had been no change whatsoever from your point of view in regards to what Ms Ross's hours of work were?............ Absolutely. None. There was - nothing had been changed."8 Given the conflicting evidence of the parties in this matter I am left with no option but to make an assessment of that evidence. If the Employee was not confronted with an ultimatum of a reduction of full time hours to thirty (30) with a reduction in her hourly rate and no guarantee of even thirty hours in the longer term, the Employer's position that the Employee was not terminated and his only action was to initiate discussions on possible change could be sustained. However, my assessment of the evidence is that he Employee's version of events is the more credible. She was emphatic that she was advised her hours would be reduced to thirty and that her hourly rate was to be reduced. Her statements on these points were not shaken in cross examination on the other hand Mr Bourke's evidence on critical issues was equivocal or qualified. I am further supported in my assessment of the evidence by the fact that when the Employee rang on Monday 4 May 1998 for her starting time on Tuesday she was told not to come in on that day. Her evidence was: "Mr Durkin xn Okay, well, we're up to the 3rd - 4th. What date was the Monday?............ Monday was the 4th. That's right. Okay?............ And I rang at 8.55pm for my starting time. On the Monday night?............ Mm - and was told that I didn't have to work on the Tuesday. Was that unusual?............ Well, it had never happened before.9 If nothing had changed (see earlier evidence of Mr Bourke) why was the Employee advised not to come in on one of her normal working days i.e. Tuesday 5 May 1998. Her evidence was that Sunday and Monday were her normal days off. Although Mr Bourke gave some evidence on the situation on 5 May 1998 I am, based on the total evidence, inclined to the view that it was the commencement of new part time working arrangements for the Employee. I accept the evidence of Mr Bourke that he did not have any intention of "dismissing" the Employee at the time of the Sunday phone call and at the meeting the next day. However, I believe from the evidence that he had a clear intention of reducing the full time working hours of the Employee the effect of which (in the absence of the Employee's agreement) is to terminate her full time contract and commence a part time contract. The Employee made it clear that she could not sustain such a consequent reduction in income and was therefore not prepared to accept the reduction. On my assessment of the evidence I believe the Employee was the subject of a dismissal from her full time employment and for the purposes of this decision find accordingly. Mr Durkin submitted that if I find the Employee has been dismissed, she must be paid a period of notice or paid compensation for wrongful dismissal. His claim on behalf of the Employee for a notice period was for payment of one month's salary. In relation to the notice period it was submitted by Mr Brown that the Employee was on probation and that in accordance with the Enterprise Agreement the notice period was therefore one (1) day only. As the Employee had been paid additional time for compassionate reasons after 4 May there was no entitlement to payment in lieu of notice. Clause 13.2 Probation of the Enterprise Agreement reads: "13.2 Probation
Clause 13.3 (a) of the Agreement reads:- "13.3 Termination
Having determined that the Agreement applies I must have regard for the above provisions. Sub clause (a) of 13.2 says that new employees "shall" be subject to a probationary period of a maximum of three (3) months. However, sub clause (b) says that new employees will be advised of the commencement and completion of the probationary period prior to taking up their employment. This was not done. Mr Durkin submitted that if the Employee was not advised of any probationary period she did not have one. What is clear from the provisions is that the probationary period prescribed is up to three months. Senior staff will be provided with a minimum of four weeks notice other than where poor work performance or misconduct is involved. The Employee was recognised by Mr Bourke in his evidence as a good employee and nothing was said at any time during the proceedings to suggest otherwise. She was also "transferred" from casual to full time employment after approximately two weeks service a clear indication of good performance. I believe that if the Employer had complied with clause 13.2(b) and notified the period of probation it would not be unreasonable for me to accept he would have terminated it at the time he made her a full time employee or a short time thereafter, perhaps another two weeks. In those circumstances I believe the provisions of Clause 13.3 come into force. Therefore in accordance with section 31(1) of the Industrial Relations Act 1984, I hereby order that All Bar One Gastrodome pay to Ms Joanne Catherine Ross four (4) weeks pay at the weekly rate being paid to Ms Ross at the time of her termination. The gross amount to be reduced by any payments made for compassionate reasons after 4 May 1998. The payment to be made to Ms Ross by Friday 31 July 1998.
J G King Appearances: Date and place of hearing: 1 Transcript page 1. |