T7986
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Linda Avery and Classic Foods Pty Ltd
Industrial dispute - re termination of employment - claiming redundancy payment - incorrect payment of leave loading - unfair dismissal - redundancy claim dismissed - leave loading claim dismissed - unfair dismissal upheld compensation awarded REASONS FOR FURTHER DECISION On 5 November 1998 I issued a decision in relation to this application which dismissed the claim for a redundancy payment to Linda Avery (the Employee) and an order which reads:-
I also left it open to the applicant to pursue an unfair dismissal claim which was part of her original application but was not debated in the initial hearing. At the outset of the further hearing of this matter on 25 November 1998 I advised the parties as follows:- "Thank you. Gentlemen, this matter has been relisted primarily to give the applicant the opportunity to develop an argument in relation to a claimed unfair dismissal. I also indicate to the parties that in relation to the decision I issued recently in relation to the other matters - and in particular, annual leave loading - in arriving at that decision, I did not take into account correspondence that was, after the hearing, sent to me by Mr Cameron. I would like to revisit that matter, take into account that correspondence, and in doing so I give the parties the opportunity this morning, if they so wish, to put further submissions in relation to that matter."1 The parties accepted my invitation to further address the issue of annual leave loading. I will therefore initially deal with that matter and then consider the unfair dismissal claim. The detail of the annual leave loading issue is contained in my decision of 5 November 1998 I will not revisit it, but I will address the correspondence from Mr Cameron referred to in transcript quoted earlier. That correspondence reads:-
As indicated this correspondence was not taken into account in my earlier decision, if it had been my findings and order would have been different. The letter explains that the anniversary date for the Employee's full time employment and therefore the anniversary date for her annual leave accrual was 12 September in any year. Her termination date was 31 August 1998. My earlier decision and order on this matter was based on the assumption that the majority of the Employee's leave entitlement of 172.17 hours was in fact made up of fully accrued leave of 152 hours with the balance being from the previous years entitlement. From the correspondence this is clearly not so, the vast majority of the 172.17 hours was pro rata leave for almost a full year of service with 24.34 hours being from the previous years fully accrued leave. Mr Cameron argued that all of the leave was pro-rata for the purpose of determining payment of annual leave loading and therefore did not qualify for any payment. However, he conceded the Employer had paid annual leave loading on termination on the 24.34 hours, the balance of fully accrued leave from the previous year and indicated the Employer did not seek to change that situation. None of the above detail was challenged by Mr Bartlett for the Employee. The award makes it very clear that annual leave loading is not paid on pro rata annual leave. In the light of information provided by Mr Cameron and the award provisions I am left with no alternative but to find in favour of the Employer on this issue and therefore revoke my earlier order. In relation to the unfair dismissal claim Mr Bartlett (of Counsel) for the Employee relied on the evidence of the Employee to support his claim that the Employee was denied procedural fairness in her termination and that in the circumstances she should receive compensation. It was generally agreed between the parties that re-instatement was not appropriate in this case. The background and respective arguments going to the merits of this matter have as indicated earlier been canvassed in my decision of 5 November 1998 so I will not repeat them again. However, Mr Cameron did call evidence from Mrs Meridith Gracie the Administrative Supervisor of Classic Foods which was primarily to demonstrate that the Employee accepted her termination. He subsequently submitted that as it was a mutual termination there could now be no claim for compensation on the basis of unfairness. My findings on the evidence in this matter are that a meeting between representatives of the Employer Mr Wilson (Managing Director) with Mrs Gracie (Administrative Supervisor) and the Employee took place. From the evidence I am inclined to the view that the meeting occurred on 24 August 1998. The Employee was not advised by management of the purpose of the meeting. The Employee's services were terminated without her being given the opportunity of being represented or accompanied. She was not given the opportunity of considering her options including getting legal/industrial advice or further medical opinions going to her then or future capacity to undertake on-going employment. The Employer also did not seek up to date medical advice to back up its view that the Employee was totally medically unfit for further employment. I acknowledge that there seems little doubt that the Employee has significant back problems which will preclude her from working at least for a further substantial period of time from the date of her termination. I am inclined to accept the evidence of Mrs Gracie that the Employee appeared to accept the termination when advised of the Employer's decision, but perhaps this is not surprising in the very unequal and maybe intimidating environment she found herself at the meeting. For the above reasons I find that the employee was unfairly dismissed. This finding is a little unfortunate as it would appear the treatment of the Employee up to the time of her dismissal by the Employer had been compassionate and aimed at achieving a mutually acceptable outcome. As I also accept that re-instatement is not appropriate in this case I must look at compensation and will do so having regard to the principles generally adopted by the Commission as found in a decision of the Industrial Relations Commission in Nicholson v Heaven and Earth Gallery. It is my opinion that an appropriate time frame in which a proper termination of the Employee could have been effected would have been one month from the initial meeting of 24 August 1998. This period would have allowed time for the Employee to obtain appropriate advice and arrange further meetings with the Employer if necessary and obtain medical opinions regarding her back condition. The Employee may also have needed to get expert medical advice. As indicated earlier I am inclined to accept the evidence of the Employer that the meeting took place on 24 August 1998 not 31 August 1998 as claimed by Mr Bartlett on the Employee's behalf. The only documents available tend to support that finding however, even one of those the termination notice,2 is dated 7 September 1998 and begs the question why it took two (2) weeks from the meeting date before it was produced. However, the evidence of the Employee in relation to the date of the meeting is very vague at best assessment. I therefore believe that the month referred to above must be offset by the period of notice given by the Employer of one (1) week from 24 to 31 August 1998. Therefore my order in this matter is that the order of 5 November 1998 relating to annual leave loading is rescinded and in relation to the unfair dismissal, in accordance with s.31(1) of the Industrial Relations Act 1984 I order that Classic Foods Pty Ltd pay to Mrs L Avery of R.S.D. 605 Edith Creek, Tasmania three (3) weeks pay at the rate paid to Mrs Avery when she last worked for the Employer.
J G King Appearances: Date and place of hearing: |