T7994
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Geoffrey Alan Jackson and Vynleaf Pty Ltd
Industrial dispute - re termination of employment - alleged unfair dismissal - application dismissed REASONS FOR DECISION During the merit considerations in this matter Mr Laning of counsel for Vynleaf Pty Ltd (the Employer) raised the fact that Mr Jackson (the Employee) had not complied with the requirements of s.29(1B) of the Industrial Relations Act 1984 (the Act) in that his application had not been lodged with the President within the prescribed fourteen (14) day period following his termination. It was Mr Lanings submission that I should have regard to Parliament's clear intention that applications be filed within the fourteen (14) day period and not exercise my discretion to extend the period. The Employee was terminated on 3 September 1998 and lodged his application on 21 September 1998 a discrepancy of some four days. I was not impressed by the Employee's reasons for his lateness in lodging the application. His evidence was that he had to wait for an appointment with an officer of Workplace Standards until the 21 September after making the original telephone contact on 7 September 1998. However, during his original call on 7 September 1998 he only raised the issue of pro-rata long service leave, it was not until his meeting on 21 September 1998 that the possibility of an unfair dismissal claim was raised, by him or an officer of Workplace Standards is not clear. The impression from his responses to questions was that his only issue in going to Workplace Standards related to his long service leave and during discussions on that issue he found reasons why he should lodge an unfair dismissal claim. Whether the above be the case or not I am prepared to exercise my discretion, particularly having regard for the short period at issue, and not dismiss the application because it was out of time. The arguments going to the claim that an unfair dismissal occurred fall into two categories, those going to the merit and those going to alleged shortcomings in the dismissal process. In relation to the merit arguments I will not summarise the arguments of the parties as is the usual procedure, because much of the evidence of the Employer going to misconduct or poor performance by the Employee was not denied or challenged by the Employee. The main accusations against the Employee were that he had over a period of time since becoming the State Manager of Research Products in February 1997, deliberately ignored reasonable directions of the Employers, ignored clear policies in relation to the handling of cash and driven a company motor vehicle during a period that his drivers licence was suspended. That he had also deliberately misled the Employers in relation to his licence status. Mr Graham appearing for the Employee in final submissions and in referring to the drivers licence issue said:
The evidence was that the Employee lost his licence in October 1997, for exceeding the legal alcohol level, for a period of twelve (12) months. During the time of suspension he admitted driving the company vehicle on a number of occasions. He also admitted that he tried to mislead the Employer by arranging through a friend at Service Tasmania to have misleading documents sent to the Employer. The documents related to his current driving record and status and his critical responses in cross examination were:
But he did it at your direction?............ Yes."2 That "doctored" document was then sent by the Employee to the Employer in Sydney for use by the Employer in negotiating new insurance premiums for Company vehicles in Tasmania. Part of a letter hand delivered to the Employee by Mrs Elizabeth Goldsmith at the time of his dismissal reads:
It is obvious from the above that the Employer believed the motor vehicle licence issue was misconduct and grounds for dismissal and acted accordingly. In relation to the disregard of company policy the Employee gave evidence in cross examination going to cash sales as follows:
Other instances of similar disregard for reasonable and proper instructions given by the Employer to the Employee were the subject of further cross examination of the Employee. However I do not believe it necessary that I record each of them but simply note that there were a number. My conclusions from the evidence in this matter are that the Employee was guilty of gross misconduct in relation to the drivers licence issue and his general performance as a responsible manager was sub-standard and both matters if dealt with appropriately by the Employer could result in his dismissal. In the ultimate the arguments of Mr Grahan in support of the applicant focussed on the process leading up to the Employee's dismissal. It was his submission that the Employee was not given an opportunity to defend himself and that there in fact had been a clear breach of Article 7 of Part 11 of the International Labour Organisations Convention concerning Termination of Employment at the Initiative of the Employer which reads:
The evidence of Mrs Goldsmith a Director of Vynleaf Pty Ltd in relation to the termination is recorded as follows:
and in further elaboration of what happened on 3 September 1998 in cross examination the transcript reads:
It is clear from the above that the Employer did in fact contravene the requirements of the Industrial Relations Act 1984 and in particular Article 7 by not giving the Employee the opportunity to defend himself against allegations of misconduct and poor performance before dismissing him. My dilemma in this case is obvious I have accepted the evidence that the Employee is guilty of serious misconduct in relation to the drivers licence and has also been a poor performer as a manager over an extensive period of time. There is also the issue of his purchase of machinery which raised questions of conflict of interest and the amount of outstanding cash from cash sales which from his evidence left many questions unanswered and more than a suggestion that he had been inappropriately using Employer funds. These performance related issues in my view also constitute grounds for dismissal. If the process leading to dismissal had been appropriate, this application would clearly be dismissed. I am now left to decide whether the misconduct and other issues are such that they should override considerations going to a lack of fairness in the dismissal process. There is no doubt that the licence issue is very serious. The Employee was not only breaking the law every time he drove a company vehicle but he was also implicating the Company in possible substantial financial consequences should he have had a serious accident. He had an obligation as a responsible employee to advise of his loss of licence, he not only chose not to but ultimately deliberately misled his Employer by providing false information. His poor performance and possible dishonest or unprofessional actions relating to cash and other matters are also serious. On balance I am not prepared, because of the seriousness of the issues going to merit, to determine that the lack of a proper process to terminate the Employee should override the other considerations. Process and fairness in a process is a very important consideration and the lack of substantive fairness generally results in a penalty against the Employer. I believe the circumstances of this case warrant an exception to that general principle. In any case if I was to consider compensation in this matter it would be in accordance with a judgement of Wilcox C.J. in Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 which details the approach adopted by this Commission as appropriate in considering compensation in these circumstances. That approach broadly is to consider what would be likely to occur should the Employer adopt a proper process to achieve the outcome desired, in other words how much longer would the Employee have remained in employment beyond the termination date if the process had been done properly. In the case of the performance issues the answer may well have been some weeks. However, as I accept that the licence issue constituted serious misconduct I conclude that in this case following a proper process on the day of the termination the outcome would have been the same ie. the Employee would have been summarily dismissed. Therefore in accordance with s.31(1) of the Act I dismiss this application and order accordingly.
J G King Appearances: Date and place of hearing: 1 Transcript page 92 |