T8114
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Nicholas Lindsay Porter and Charcoal Chicken (Real Food Fast Pty Ltd)
Industrial dispute - termination of employment - arbitrated REASONS FOR DECISION This was an application for a dispute hearing made under section 29(1A) of the Industrial Relations Act 1984 (the Act) by Nicholas Lindsay Porter of 3 Pandanus Place, Devonport. Mr Porter was in dispute with Charcoal Chicken (Real Food Fast Pty Ltd) also of Devonport (the Company) over the alleged unfair termination of his employment. He sought reinstatement or compensation if reinstatement was not practical. Mr Porter, who was 16 years of age, was employed by the Company as a kitchen hand in its newly opened take-away shop in Devonport. He was given the job (his first) and started work on Saturday, 31 October 1998. On 12 November 1998, less than two weeks later, Mr Porters' employment was terminated on the grounds that his sister, Kate, was employed at the nearby Chick Inn and it was the Company's policy that relatives of employees of competing businesses would not be employed. Whilst the evidence was conflicting it appeared Mr Porter, in the course of general conversation at work had adverted to the fact that his sister, Kate, was employed at the nearby competing "The Chick Inn". On being made aware of this situation Mr Ross Thomas Arthur Butler a director and manager of the Company, called Mr Porter into the shop and terminated his employment. A feature of this case was that the evidence from both sides relating to the key facts was contradictory and inconclusive. In evidence Mr Porter claimed that he had not been told during his job interview of the Company's policy not to employ relatives of persons who worked in directly competing shops nor had he been told that his status was that of a casual employee. Mr Butler said in evidence that he had told Mr Porter during his job interview of the Company's policy about the employment of relations and also that he would be a casual employee. At the interview Mr Butler used a piece of paper with notes on it as a guide to the conduct of the interview, but, the applicants did not see the notes nor were they given any papers setting our the basic conditions of their future employment including relevant Company policies. In the week ending Saturday 31 October 1998, Mr Porter worked his first and only shift for that week. During the second week of his employment Mr Porter worked three shifts. In the third week of his employment Mr Porter worked two shifts (Tuesday and Wednesday) and then on Thursday (12 November 1998) his employment was terminated. At the time of his employment termination Mr Porter had been "rostered" or allocated work for some days in the two weeks after that.1 DECISION I am satisfied that Mr Porter was unaware of the Company's policy concerning the employment of persons with relatives working in other similar shops and in that context the termination of his employment was unfair. In the circumstances, however, of the Company's policy (which I do not criticise) the short term of Mr Porter's employment and the absence of any written evidence of his status, apart from the "casual" notation on a pay slip, I am not prepared to say he was anything other than a casual employee in the terms of the Restaurant Keepers Award (the Award). Conversely and again, in the circumstances, I do not accept that Mr Porter was a part-time employee. As a matter of interest the advertisement to which Mr Porter responded announced that both part-time and casual positions were available hence it has been of no assistance in establishing Mr Porter's status. The Chamber, on behalf of the Company, submitted that Mr Porter had been on probation and therefore under the International Labour Organisation's Convention he should be excluded from making an unfair dismissal application. Again, there was no evidence, apart from witness assertions, that Mr Porter was in a probationary period whilst employed by the Company and the Commission rejects that submission. In consideration of the foregoing I am not prepared to reinstate Mr Porter, but, if necessary I will order that he be paid the amount of wages he would have earned had he been at work for the days he was "rostered" or allocated to work after the date of termination of his employment. I dismiss Mr Porter's claim for his expenses in buying jeans and boots because of the lack of evidence.
P A Imlach Appearances: Date and place of hearing: |