TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for a hearing in respect of an industrial dispute

Paul Frederick Gillam
(T8205 of 1999)

and

Delta Hydraulics Pty Ltd

Industrial dispute - alleged unfair dismissal - unfair dismissal upheld - parties directed to confer on remedy - no agreement - order issued.

REASONS FOR DECISION

On 14 April 1999 I issued a decision in this matter upholding the applicants claim of unfair dismissal and directed the parties to confer in relation to remedy. My conclusions and directions to the parties reads:

"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." 1

Subsequent discussions did not produce an agreement. The applicant has advised me that he is not in a position to proceed with further submissions on a remedy to this matter. I will therefore determine a remedy on the basis of the established principles accepted by this Commission.

I do not intend to go back over evidence of this matter that has been done in my earlier decision.2

Having decided that the applicant has been unfairly dismissed the first remedy for consideration is re-instatement. In my earlier decision I criticised the parties for their intransigence in dealing with the initial problem that resulted in the applicants dismissal. I repeat those observations:-

"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."

and

"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." 3

I believed at the time of my original consideration of this application that the parties should have been able to resolve this matter with an outcome satisfactory to both sides. Unfortunately this has not occurred. I can only conclude that the same "hard nosed" attitude by one or both parties has prevented an agreement. Assuming that to be the case it seems to me that re-instatement is not a realistic option as it would not be long before further incidents arise which would cause another break down in the employment relationship.

I therefore turn to compensation and consider an appropriate remedy in accordance with the approach by Wilcox C.J. in Nicolson v Heaven and Earth Gallery.4

It seems to me that given the original circumstances that resulted in this matter coming to the Commission the incidents which had occurred some months before involving the applicant and the fact that agreement has now not been reached by the parties to settle this matter, it is unlikely that the applicant would have had a long term future with the Company.

I therefore determine that appropriate compensation would be the payment of six (6) weeks pay to the applicant.

I therefore order in accordance with section 31(1B) of the Industrial Relations Act 1984 that Delta Hydraulics Pty Ltd pay to Mr Paul Gillam of 113 Ronald Street, Devonport 7310 an amount equal to six (6) weeks pay at his normal rate of pay at the time of his dismissal on 6 January 1999. The payment to be made no later than 16 July 1999.

J G King
DEPUTY PRESIDENT

Appearances:
Mr T Brady with Mr P Gillam
Mr R Brown with Mr J White of Delta Hydraulics Pty Ltd

Date and place of hearing:
1999
February 23
Ulverstone
March 10
Devonport

1 Decision 14 April 1999
2 Decision 14 April 1999
3 Decision 14 April 1999 Page 4
4 Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1.1.RCR 1994