T8205 - 14 April
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Paul Frederick Gillam and Delta Hydraulics Pty Ltd
Industrial dispute - alleged unfair dismissal - unfair dismissal upheld - parties directed to confer on remedy. REASONS FOR DECISION Mr Gillam (the Employee) was terminated from his employment with Delta Hydraulics Pty Ltd (the Employer) on 6 January 1999. The Employment Termination Form 1 indicates the reason for his termination as "non conformance with Enterprise Agreement." The employee had been an employee of the company for approximately fourteen (14) years. The background to the termination is that on 4 January 1999 at a meeting of managers a decision was made requiring the machine that was operated by the Employee to increase its operating time to eighty (80) hours per week for a period of four (4) weeks. This requirement would necessitate the Employee working afternoon shifts or weekends over that period of four (4) weeks, instead of his normal Monday to Friday day work hours. A dispute over how the Employee should work his share of the additional hours resulted in his termination. Management's requirement was that the Employee work two (2) weeks afternoon shift or two weekends during the four (4) week period. The Employee claims he was prepared to work one or other of the options provided it was "fair". In the ultimate he believed that the options discussed were not "fair" therefore declining the additional hours. Managements response was to dismiss the Employee. Significant evidence was produced by both sides going to the circumstances leading up to the dismissal. I do not intend to canvas that evidence as I do not believe it will assist greatly in the determination of this matter. However, I will indicate clearly at the outset that I believe from the evidence the issues between the parties could have been satisfactorily resolved with a little goodwill on both sides. The issues could and should have been resolved through Clause 10 Avoidance of Disputes of the Delta Hydraulics Pty Ltd Enterprise Agreement 1998/2000. (the Agreement) Mr Brady of Employment Outcomes Personnel Consultants for the Employee submitted that it was not the Employee who had breached the Agreement but in fact the Employer. 2 Mr Brady referred me to the following Clauses of the Agreement :- "9. Grievance/Dispute Committee The Committee shall comprise six or more elected employee representatives of all areas of the company and will be responsible for handling all areas of dispute that should arise within the company and in addition the responsibility of performance remuneration (see Clause 8). A quorum shall consist of 80% of the committee. This committee has the ability to approach the company at any negotiated time to resolve issues. Any grievance or dispute not able to be resolved through the committee and/or management shall be taken before the commissioner for a ruling (see Clause 10)." Clause 10:-"Avoidance of Disputes The paries to this agreement unequivocally commit themselves to the peaceful resolution of all grievances and/or disputes arising during the currency of the agreement without recourse to any form of industrial action. In particular the parties are committed to the following procedure in the avoidance and resolution of grievances and/or disputes. a) any grievance/dispute or potential grievance/dispute shall first be raised by an employee with the immediate supervisor who shall endeavour to resolve the matter. b) Should the Supervisor be unable to resolve the matter the employee shall submit the matter to the employer, who shall confer with the parties in an endeavour to resolve the dispute. c) In the event the matter remains unresolved either party may notify the matter to the Grievance Dispute Committee. d) If the matter should still be in dispute, either party may notify the Tasmanian Industrial Commission for conciliation and/or arbitration. All parties unequivocally agree to accept the decision of the Commission as final and binding on both parties, subject to normal appeal rights." 3 "Clause 12 Work Distribution Distribution of all available hours must be done fairly within classifications. Any grievance or dispute must be brought to the attention of the relevant management personnel and Grievance/Dispute Committee as per Grievance/Dispute Clause." 4 and submitted that it was clear from the evidence that the process outlined in the clauses detailed above was not followed. In those circumstances the Employer was in breach of the Agreement by dismissing the Employee before exhausting the appropriate process. A summary of the evidence of Mr Robert John Stubbs the Chairman of the Grievance/Dispute Committee is that he was initially contacted by the Employee and; "He said to me, I'm going to have to call the Committee in regarding the situation with my hours, or along those lines" 5 Mr Stubbs indicates his reaction was; "Initially, I just said well surely you'll get it sorted out. That was it. It was left as that but he did approach me again later on and say that, it wasn't going to happen." 6 Mr Stubbs gave further evidence of exchanges between himself the Employee and Mr White the Managing Director. However, in relation to the convening of the Grievance/Disputes Committee his primary evidence was:- "Mr Brady xn After the conversation with Mr White, he did acknowledge to you that if it couldn't be resolved, that the committee may have to be formed?... Yes, he did, although I did say that I would recommend that Paul speak to him again. What was your involvement after that? Did the committee form?... No. I spoke very briefly to a couple of the committee members. We couldn't have formed on that day anyway. We did not have enough members to do so." 7 and "So a quorum couldn't be formed. Mr White was aware, obviously, that you had been approached as the chairperson of the committee?... He would have been because I spoke to him. ....So during that period then where obviously Mr Gillam was terminated, you were not approached by any member of management to inform you that all communications and discussions had broken down and that they intended to terminate Mr Gillam?... No. I think the first news I got of that would have been when Paul actually came and told me." 8 It is clear from the above that the issues involving the Employee were not the subject of discussions with the Grievance/Dispute Committee. It is equally clear from the Agreement that any disputes over the distribution of hours must go the Grievance/Disputes Committee in accordance with Clause 12 of the Agreement. Having regard for the above I believe the Employee has not been afforded the appropriate process to deal with the differences between him and management before he was dismissed. I believe he has therefore been inappropriately dealt with and unfairly treated/dismissed. Given the evidence and my conclusions in this matter I believe it important to make some observations about some of the issues raised by the parties. It should be clear from the above that I am not determining the merit of this matter. It seems clear to me that if I did I would find that the Employee had an unreasonable attitude about a number of issues and would need to modify those attitudes if he was to remain in employment at Delta Hydraulics Pty Ltd. Equally the Employer dismissed the Employee for non conformance with the Agreement which may be so but in reality the Employer was in substantial breach of the Agreement. The Agreement provides a frame work for the employment relationship and once entered into must be observed by both parties. The unfortunate aspect of this matter is that I believe if the Grievance/Disputes Committee had been involved in discussions with management over this issue there would have been a satisfactory outcome. Issues would have been appropriately discussed and common sense prevailing. As it was I believe a hard nosed approach to the issues by those immediately involved did not allow for a resolution. Again I make it clear (I did on the record of proceedings) that the Grievance/Disputes Committee has no power to make management decisions but it has been given an appropriate role under the Agreement to facilitate the resolution of issues. In the light of my finding that the Employee has not been afforded appropriate treatment in accordance with the Agreement and therefore unfairly dismissed I direct the parties to further confer on an appropriate outcome to this matter. I do not preclude any reasonable resolution from being discussed by the parties. Should the parties not be able to settle this matter I will re-list it to hear appropriate submissions going to remedy from the Commission. It goes without saying that the discussions between the parties should take place as soon as practicable.
J G King Appearances: Date and place of hearing: 1 Ex B.2 |