T7986
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Linda Avery and Classic Foods Pty Ltd
Industrial dispute - re the termination of her employment - claiming redundancy payment - incorrect payment of leave loading - redundancy claim dismissed - order issued in relation to annual leave loading REASONS FOR DECISION Mr Bartlett of Counsel appearing for the applicant identified the issues in this matter as a claim for the appropriate payment of annual leave loading and the payment of a redundancy to Mrs Avery following her termination from her position with Classic Foods Pty Ltd on 31 August 1998. Mrs Avery commenced employment with Classic Foods Pty Ltd on 4 January 1994 as a casual and commenced a period of full time employment from 12 September 1994. In relation to her claim for payment of annual leave loading, evidence was produced and not disputed that Mrs Avery had an entitlement to 172.17 hours annual leave at the time of her termination. She was paid for that amount of leave but was only paid annual leave loading for 24.34 hours resulting in a payment of $43.56. Mr Bartlett submitted that the narrow interpretation of the award provision by the Employer in this case was incorrect and the Employee should on his calculations receive an amount of approximately $308.00. Again the evidence is that Mrs Avery was paid $1760.85 for her accrued 172.17 hours of annual leave. The calculation of 17.5% of $1760.85 produces an amount of $308.15. Mr Cameron of the Tasmanian Chamber of Commerce and Industry Ltd appearing for Classic Foods Pty Ltd submitted that the award (Dairy Processing Award) provided that an employee must receive a 17.5% annual leave loading when "going on annual leave". As Mrs Avery was not going on leave she had no entitlement to the 17.5% loading. He submitted the award was very clear in relation to pro-rata leave that there was no entitlement to the loading. However, Mr Cameron did not offer any explanation going to the payment of $43.56. I accept the submission that payment of annual leave loading on pro-rata annual leave entitlement is proscribed by the award. However, I do not accept the limited construction put on the award provision by Mr Cameron that if an employee is not "going on annual leave" there is no entitlement to annual leave loading on fully accrued annual leave. Mrs Avery is therefore in my opinion entitled to 152 hours annual leave loading less the hours already paid i.e. 24.34. For me to form any other conclusion would have required far more in terms of submissions and precedent than was put to me in this case. By contrast substantial evidence and submissions were put to me on the issue of the entitlement or otherwise of Mrs Avery to a redundancy payment. As indicated earlier Mrs Avery commenced full time employment with the Company on 12 September 1994. During 1996 Mrs Avery injured her lower back at work and has been absent on workers compensation for much of the time since. Over the last twelve months or so Mrs Avery was put on rehabilitation programs by the Company. However, she was unable to sustain full time employment with recurrent problems with her back which required the termination of each of the programs. Mrs Avery's evidence is that on or about 31 August 1998 she was asked to attend a meeting with Mr Wilson the Managing Director of Classic Foods and Ms Meredith Gracie the Administration Manager. At that meeting Mrs Avery was advised that her services were terminated because Mr Wilson was unable to keep her job open for her any longer. At that meeting Mrs Avery signed a Classic Foods "Resignation/ Termination of Employment" document1 and was advised that she would be paid any entitlements in the next few days. That meeting was the only one that occurred and she was not given time to seek advice or consider her position before being advised that she was being terminated. She gave evidence that with her back problems her prospects of getting work in the future were minimal. The Company's evidence given through the Managing Director, Mr Wilson, was that Mrs Avery was initially employed as a packer with predominantly manual functions. At about the time of Mrs Avery's initial accident much of that manual work disappeared with the advent of automation. Employees doing the manual work, as packers, who have remained with the Company have been retrained and now work at different functions. Mrs Avery was off work on workers compensation at the time the factory was automated in June/ July 1996. Mr Wilson described how rehabilitation programs were put in place for Mrs Avery involving functions that it was hoped Mrs Avery was capable of doing, however she ultimately suffered recurrent back problems and had to go back onto workers compensation. Mr Wilson's evidence on this time is: "Mr Cameron xn
Mr Wilson's further evidence was that following the July attempt at rehabilitation the rehabilitation officer spoke to Mrs Avery on Friday 21 August 1998, followed by a discussion involving himself, Mrs Gracie and Mrs Avery on 24 August 1998 at which he ultimately advised Mrs Avery that he was going to terminate her services effective on 31 August 1998. His principal evidence on this discussion is:-
You had a meeting with Mrs Avery concerning her employment. Do you remember when that took place?............ That was Monday the 24th. That meeting followed discussions on the previous Friday with her. What were those discussions?............ Those discussions were with her rehab officer and the basic reason for talking to the rehab officer and subsequently to Linda, was to discuss the concern that I had in the rehabilitation programs and their subsequent failure to be effective and also the most recent one, where Linda, despite being able to do six hours work and so forth on the floor, the fact that the spasms would come from nowhere, the concern for her security first and also the rest of the factory staff was of major concern to the work force including our factory manager. It was discussed, basically, to find out whether Linda and her rehabilitation officer had any idea as to whether she would be able to successfully complete a rehabilitation program and get back into the work force. And you had a meeting then with Mrs Avery?............ On the Monday, yes. That's the 24th. The discussions went along the same lines. Can you take the commission through those discussions. Can you recall, roughly, what you said, what Mrs Avery said and what Mrs Gracie might have had to say?............ I can't recall word for word. I do remember expressing to Linda my major concern with her well being on the factory floor and also the subsequent well being of the factory staff because if she was to take a turn while attending a machine, she could put herself at risk, plus she could put others at risk as well. We talked in general terms - it was a very amicable meeting - about the number of rehabilitation programs we'd tried to assist Linda with and the fact that she wasn't completing them and obviously her physical condition was a major problem and as such, it was very difficult for Classic Foods to continue holding a position for Linda. And what else was discussed? What did Mrs Avery say in response to that, when you put it to her?............ I think Linda was very appreciative of the fact that we'd persevered with having her back and under rehab programs and the discussion then went to the fact that I was going to terminate her services. What reason did you give her for that?............ Basically, that it was not possible for us to have her on the factory floor working for us."3 He believed that Mrs Avery accepted the termination at the meeting and was appreciative of the efforts made by the Company to rehabilitate her to the workforce. Mr Bartlett put himself in the witness box and gave evidence of a telephone discussion between he and Mr Wilson on 8 September 1998. He produced a file note of his discussion with Mr Wilson the main tenure of which supported the applicant's claim that she had been made redundant but without any accompanying compensation. The evidence is clear in this case that the Employee was provided with at least four (4) rehabilitation programs over the period of her workers compensation which commenced in April 1996. The last of those programs was detailed in Exhibit B5 and involved phased-in hours to end with normal working hours and agreed functions that she was to perform. It was to commence on 10 August 1998 and conclude on 25 September 1998. The program was agreed between the Insurance Company rehabilitation provider, the Company and Mrs Avery. Unfortunately Mrs Avery was unable to complete the program which it was agreed would have resulted in a return to full time work. Mrs Avery was also unable to complete the earlier programs. It is also not disputed that the position Mrs Avery occupied at the time of her accident had disappeared due to changed technology over two years ago. Any redundancy claim could therefore only relate to positions or work available at the time of Mrs Avery's termination. The evidence is clear that other employees had been retrained to new jobs or had moved on. Part of the rehabilitation programs were to train Mrs Avery for new functions should she be able to return to the workforce as a full time employee. Unfortunately she was unable to do so. The Company's evidence was that there had never been any redundancies from its employment. I am unable to find that there was a position made redundant which resulted in Mrs Avery's termination by redundancy. It seems clear to me from the evidence that the Company dismissed the Employee because of their view, perhaps supported by the rehabilitation provider that Mrs Avery was permanently unfit for the work available. The difficulty with that conclusion is that it is not supported by any medical evidence. Had the Company obtained medical evidence to support its conclusion that the Employee was permanently unfit for work available I would have little difficulty accepting its position. I acknowledge that Mrs Avery had supplied the Company with appropriate medical certificates for her period of workers compensation but any supplied to me were for a specific period of time and did not offer any prognosis for the future. The application in this matter seeks a hearing on the basis of alleged unfair termination of employment and severance pay in respect of termination as a result of redundancy. At the outset of proceedings in this matter I asked the following question:- "D.P. King Well, is it a redundancy or is it an unfair dismissal that you are claiming?" Mr Bartlett Well, if we can resolve the issue of redundancy, probably not, but we don't abandon the issue of unfair dismissal."4 However the possible issue of unfair dismissal was not debated. For the reasons detailed above I dismiss the claim for severance pay as a result of a redundancy. Should the applicant wish to pursue the unfair dismissal claim I am prepared to re-list this matter for further hearing. I indicate to the parties that I would not anticipate further evidence being presented should the matter be re-listed. In the light of my conclusions the parties may wish to further discuss the outstanding issue to see if it can be resolved by agreement. In relation to the annual leave loading claim I order in accordance with s.31(1) of the Industrial Relations Act 1984 that Classic Foods Pty Ltd pay to Mrs L Avery annual leave loading at the rate of 17.5% for one hundred and fifty two (152) hours annual leave, less the amount $43.56 already paid. The loading to be based on the normal hourly rate applying to Mrs Avery at the time of her termination.
J G King Appearances: Date and place of hearing: 1 Exhibit B1 |