T7892
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 David John Potter and Kelma Pty Ltd trading as Jackson Ford
Industrial dispute - termination of employment - alleged unfair dismissal - application dismissed REASONS FOR DECISION When this matter was first listed for hearing on 3 September 1998 the parties were referred into conference as there had been no previous discussions on the issues. A number of jurisdictional matters were discussed and it was ultimately agreed that the merit of the application would be debated at a time and place to be fixed. Any residual jurisdictional issues would also be debated in conjunction with the merit. Agreement to proceed in this jurisdiction resolved one of the issues as it was contended by Mr Cameron of the Tasmanian Chamber of Commerce and Industry for Jackson Ford (the Employer) that Mr Potter was employed under a Federal Award. The background to this matter is that Mr Potter commenced employment with the Employer on Saturday 27 June 1998 and was terminated on Monday 27 July 1998. Mr Potter commenced employment following his response to an earlier advertisement in the press and discussions with Mr Lack the Service Manager of Jackson Ford the last of which occurred on Friday 26 June 1998 when it was agreed Mr Potter would attend the workplace on the 27 June 1998. He ultimately worked for much of that day although Mr Lack maintained the original idea was for Mr Potter to familiarise himself with the way the Company worked. Early on Monday 29 June 1998 Mr Potter was presented with a letter1 the content of which Mr Lack took him through and Mr Potter then signed it. Mr Potter continued working that day and for the next month on the basis of the number of hours that suited his personal circumstances generally varying between six (6) and eight (8) hours per day. As indicated earlier he was terminated on 27 July 1998 and it is the status of the employment for the period that is the critical question for my determination. The Employers position is that Mr Potter was employed as a casual for a period of one month with the situation to then be reviewed. It was, and the work for which Mr Potter had been engaged was completed and therefore his employment was not extended but terminated. Mr Durkin maintained that Mr Potter had been engaged as a permanent employee and had been unfairly dismissed on 27 July 1998. He should therefore be re-instated or compensated accordingly. Part of Mr Durkin's opening submission in this matter reads: "Mr Durkin, ...there was either a permanent contract in place or there wasn't and I believe that if there wasn't, then that will be the end of the matter, if the commission is of that view. If there was, we have some serious issues to address as to the way this employee has been treated by the management at Jacksons."2 The undisputed events leading up to Mr Potter's employment are that Mr Potter had in 1996 provided the Employer with a C.V. of his long career in the car industry and advised the Employer that he would be moving to Tasmania at some time in the future and would be looking for employment. Soon after arriving in Tasmania in August 1997 he again made contact with Jackson Ford leaving a phone number and a contact address. By the time Jackson Ford were looking for an employee with Mr Potter's skills he had moved address and had not advised them. Mr Lack then decided to advertise the position with the intention of attracting Mr Potter's attention if he was still in the state. The advertisement achieved its purpose and Mr Potter made contact with Mr Lack. Following discussions and Mr Potter obtaining a medical report he commenced work on 27 June 1998. Mr Potter's evidence is that the newspaper advertisement was for a full time position and at no time prior to Monday 29 June 1998 had there been any suggestion to him of anything other than permanent work. This included discussions with Mr Lack on Friday 26 June 1998 when it was agreed he would come in on Saturday 27 June 1998. Mr Potters evidence is that he commenced full time permanent work on that day. On Monday 29 June 1998 he accepts that Mr Lack went through the document Exhibit C2 with him and that he signed it indicating his agreement with it. Exhibit C2 reads:- "MEMO TO: DAVID POTTER DATE: JUNE 29, 1998 RE: CASUAL POSITION IN SERVICE DEPARTMENT The above position will be initially for a 1 month period. Duties will include: 1. Retail costing Including customer meet and greet, service bookings, attending driveway, answering phones, queries and other functions that may be required during the course of the day. When required the above mentioned duties will need to be carried out at any of our dealership sites. The rate of pay will be $14.69 per hour. Start and finish times will be of the discretion of the employer. BARRY LACK As read David Potter." Mr Potter then worked varying hours by agreement with Mr Lack to suit his personal circumstances. Mr Lack agreed that the position was intended to be full time. Mr Lack gave evidence that on Friday 26 June 1998 he advised Mr Potter that the employment was initially for one month and that it would be casual. He believes that was confirmed by Mr Potter signing Exhibit C2 on the Monday morning. He gave further evidence that it was not his intention that Mr Potter work on Saturday 27 June 1998 but that he could come in and observe the processes which other staff worked on that day. He later decided to pay Mr Potter when he became aware that he had in fact worked for a substantial period on the Saturday. Mr Lack's evidence on this critical discussion of 26 June 1998 is:- "Mr Cameron xn So Mr Potter came and saw you. Can you take the commission through the conversation, of what was said at that meeting?............ Yes. I told Mr Potter that Mr Stewart had made a decision that we put the position through Secretary Birds. Including his application?............ Including his, and that he would be more than likely called through there to be interviewed and that the position was going to be a casual position initially for a one month period. And you told him that at that meeting on the Friday?............ Yes. You're fairly sure about that?............ Definitely. After we had that discussion and I put to him what had changed - Did he agree, or disagree, or what?............ He didn't disagree. Our people were working and had been working for the Saturdays and evenings trying to break this workload, so it was a suggestion that because they were working on the Saturday that I said to Mr Potter that they were working and if he wished, it would be an opportunity for him to come in and just oversee what happens."3 Mr Potter's responses in cross-examination on the same meeting and issues are as follows: "Mr Cameron xxn I put it to you that he said to you on that Friday afternoon, we will give you a position for a month?............ Not at all. Sorry. I say to you that he put to you at that time, that you would be employed as a casual?............ No mention of that at all. The discussions about working on the Saturday, didn't he say that you would commence on the Monday, the 29th?............ No. He specifically said to me, he had quite a backlog there at that time. I said, how much problem have you got with it, and he explained to me, some of these guys were rostered on Saturdays. I said, fine. He asked me how soon could I start. I said, if you need a hand, I can start tomorrow or on the Saturday. The warranty guy in question was working that Saturday, so I offered to start that Saturday. He said, that's fine, because he wanted to get this backlog - it was worrying him, the backlog he had. I put it to you that the only discussion that came up about Saturday was that Mr Lack said, we're open tomorrow. If you want to have a look around, you can come in tomorrow?............ No. No mention of that at all. The only intention was for you to come and look around. There was no requirement for you to do any work on the Saturday?............ It's funny you say that because he did say to me, that if you work, I'll pay you for what you work. They were his exact words, I'll pay you for what you work."4 If I had to make a decision on these issues on the verbal evidence alone of the two witnesses I would prefer the evidence of Mr Potter compared to Mr Lack. However, Mr Potter does not deny that he went through the document Exhibit C2 on the Monday morning and agreed to its terms and conditions. As indicated while I prefer the evidence of Mr Potter on what transpired on Friday 26 June 1998 I do not believe that I can be sufficiently satisfied to the extent that I can make a finding that he in fact commenced a full time, permanent position the following day Saturday 27 June 1998. In the absence of being able to make such a finding I must turn to the remaining evidence which is clear and leaves me with little alternative but to find that Mr Potter commenced casual employment if not on 27 June 1998 certainly from 29 June 1998. That employment was in accordance with the content of Exhibit C2 earlier detailed. Considerable evidence was given in this case going to the reasons for the change from permanent to casual employment. Mr Durkin alleging that the change was made because of the content of the medical report and Mr Stewart's (the General Manager) concern about employing Mr Potter if he had medical problems or a disability. He also alleged, supported by the evidence of Mr Potter, that the reason for the termination was an incident which occurred on the morning of 27 July 1998 involving Mr Potter and a valued client of Jackson Ford. The evidence presented would tend to support these allegations but I will not address it because I believe in view of my finding in relation to the type of employment undertaken by Mr Potter it is not material to my decision. Exhibit C2 indicates the employment is casual and will be "initially" for a period of one month. The month had expired and the evidence, which was not challenged, was that a backlog of work for which Mr Potter was engaged had been completed. Mr Lack gave evidence that he had made the decision the previous Friday (24 July 1998) to terminate Mr Potter as the work was up to date but by the time the decision was made Mr Potter had left for the day. His evidence was that the "incident" on the morning of 27 July 1998 was no more than that and had nothing to do with the termination of Mr Potter. Again I prefer the evidence of Mr Potter going to the events on 27 July 1998, however, the fact remains that the termination of Mr Potter's casual employment after one month of service does not require a reason, other than the work was up to date, and therefore in my view must stand. There are some disturbing aspects from the evidence in this matter such as the reason for Mr Stewart changing his mind on the type of employment to be offered Mr Potter and whether the "incident" on the morning of 27 July 1998 was the real reason for Mr Potter's termination. But for the reasons given earlier I believe I have no alternative but to dismiss this application, and I so Order.
J G King Appearances: Date and place of hearing: 1 Ex. C2 |