T8377 and T8378
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Allan John Bye Peter Arthur Edward Nibbs and Fencing Services, John Knill
Industrial dispute - alleged unfair dismissals - applications dismissed. REASONS FOR DECISION These applications were listed for hearing in Devonport on 14 May 1999. On that day neither the applicants nor the Employer were represented, I therefore chaired discussions in an effort to resolve the issues between the parties by conciliation. After some considerable debate it became obvious that there was unlikely to be any agreement reached. I adjourned the matters and recommended to the applicants that if they wished to pursue their claims further they should seek advice and ideally be represented at any future proceedings before the Commission. On 25 May 1999 I received the following correspondence through the Registrar: "The Registrar Dear Sir Re; Peter Nibbs and Allan Bye V John Knill Fencing Services Nos: T8377 and T8378 of 1999. I am assisting Mr Peter Nibbs and Allan Bye in relation to these disputes. I am instructed that these matters were last before the Commission in Devonport on 14th May 1999. During the course of failed settlement discussions, I understand from my clients that Deputy President King recommended that they obtain representation for any future hearing. I am able to act in this regard. Would you please provide me with detail of the hearing. If possible, are you able to indicate in advance whether any difficulty would exist with my obtaining leave to appear at the hearing, given that the employer appears to remain unrepresented. Yours faithfully I advised Mr Heerey of the North West Community Legal Centre that I had given the Employer (Mr John Knill) the same advice as the applicants re representation and although I would be concerned about one side being legally represented and the other unrepresented I would nevertheless be prepared to proceed when the matter was next listed. The applications were subsequently re-listed on 8 June 1999 in Ulverstone, the Employer was represented by Mr C Marsh. As I foreshadowed with Mr Heerey the matters proceeded to hearing on 8 June 1999 after being formally joined to facilitate proceedings. In his opening submission for the applicants Mr Heerey summarised their case as follows: "The case of the applicants is that the employer's termination contravened the standards of general application of the termination of employment Convention, specifically Article 4, that there was no valid reason for their termination connected with their capacity or conduct or the operational requirements of the employer's business. Also, their case is based on Article 11, that there was no reasonable period of notice given to them of the termination or compensation in lieu thereof." and "If it is the employer's case that there was some termination either direct or constructive on the basis of inadequate performance, then the applicant's case would also be prefaced on Article 7 of the Convention to the effect that they have not been afforded adequate opportunity to defend themselves against any suggestion that their termination, direct or constructive, was related to their conduct or performance. Sir, if I can just direct you to the filed applications of both Peter Nibbs and Allan Bye that I suppose you'd have on the file? DEPUTY PRESIDENT: Yes MR HEEREY: Yes. You'll see that in each of the applications - and if I could draw your attention to Part E, paragraph 5, the applicants indicate in the applications that their employment status with the employer was full-time casual. The case essentially, sir, is that neither of them were casual workers in the colloquial sense of the word. Their case is essentially that the nature of the actual employment arrangement with the employer indicates a continuing relationship which amounts to an ongoing contract of employment." 1 The background to this matter is that the applicants were employed by Mr John Knill in his Fencing Services business as casual fencing labourers. Mr Allan Bye commenced his employment on 25 September 1998 with his last day of work being 1 April 1999. Mr Peter Knibbs commenced on or about 10 February 1999 with his last day of work also 1 April 1999. During the respective periods of employment the employees were employed at various times and at various locations depending on the work available. It was generally agreed or not challenged that the Employees were casual and the award that would apply to their employment was the Metal and Engineering Industry Award. The payments made to the Employees varied from a daily or half day amount; i.e. $50.00 per day or $25.00 per half day, to an hourly rate up to $13.25 or a lump sum payment for a particular job. The Periods of employment were not supported by documentation, for example, letters of employment or offers of employment, there were no appropriate pay records, certainly none were provided to me. Payments were made to the Employees about once a fortnight but this varied depending on the work or the Employees were able to ask for payments on a needs basis. Against the above background Mr Heerey solicited evidence from the Employees in an endeavour to show that the employment was consistent if not full time for both employees therefore requiring that if they were terminated they must be treated in accordance with the conventions earlier referred to. It was not disputed that the Employees last working day was 1 April 1999 the day before the Easter break. Both employees gave evidence that they expected to continue work for Mr Knill after a short break. This did not happen leading both Employees to lodge these application claiming unfair dismissal. The Employers argument was that both Employees were casual. They were employed in accordance with the provisions for casual employment in the Metal and Engineering Industry Award. They were engaged for the period of each contract or job and terminated at the conclusion of each. There was no obligation on the Employer to provide ongoing employment. The Employer denied terminating the employees other than in accordance with the above, it was simply a case of the Employer choosing not to re-employ the Employees after the Easter break. Mr Knill did not deny that he had work after Easter. He returned to work after a break of two weeks or so and he had from time to time since Easter employed others on the work that Mr Bye and Mr Nibbs would otherwise have done. Mr Knill also gave evidence that the correct award rate for a casual labourer is "$359.40 divided by 38 add 20% loading is $11.35 per hour" 2 but also gave evidence which demonstrated that the Employees were paid rates inconsistent with the award, some below some above the award rate. In considering an outcome in this matter I must first determine the type of employment contract that existed between the Employees and the Employer. The applicants did not claim that they were full time employees during their evidence. Although the terminology "full time casual" was used in the application this descriptor was not pursued or sustained by the evidence or the submissions of Mr Heerey. The evidence supported a conclusion that the employees were casual employees employed for the duration of each contract or job. The work varied from one or two days to two weeks or more duration with some of the jobs being interrupted by rain. During periods of rain the Employees did not work and were not paid. The evidence was clear that the Employees were paid for the job at hand resulting in various payment methods; ie. daily, hourly, a given sum; supporting the employers contention that each job was a new start with an obvious termination. The payment method and amounts raises an issue of whether the Employees have been paid appropriately in accordance with the award but this matter was not pursued through the course of these proceedings. If I accept that the Metal and Engineering Industry Award is the correct award underpinning the Employment (this was not denied by Mr Heerey) a Casual Employee is defined as :- "Casual Employee" - means any person who is employed on an irregular basis to perform a specific task(s) over a defined time period. At the completion of such period and/or task(s) the contract of employment shall be deemed to be terminated." The definition seems to clearly fit the circumstances of the employment of the applicants in this case. They were employed for a specific task or job and importantly at the completion of such specific task or job the "employment shall be deemed to be terminated." The Employees did not deny that they were registered with Centrelink for the entire time of their respective employment periods and as required provided details of income earnt. Hardly the action of persons who believed they had "Full Time Casual" employment. The Employer's evidence also was that it was the custom of the Employees or one of them to ring on Sunday night to see if there was any work for the next day or week. I believe I must find on the evidence that the employment of Mr Nibbs and Mr Bye was truly casual as envisaged by the Metal and Engineering Award. That being the case it becomes irrelevant whether or not the applicants were dismissed or not, some time after the 1 April 1999. The reality is they were terminated at the conclusion of work on 1 April 1999. If 1 April 1999 was not the conclusion of the work at that particular job site I accept it could be argued that the payment of one (1) hours pay in lieu of notice is owed by the Employer to both Employees. I indicate for the record if the employment had been "full time casual" for the respective periods of employment for the applicants the outcome in these matters may have been very different, not only because of that fact but also it is clear from the evidence that Mr Knill did not handle his employer responsibilities in the ultimate in a fair and reasonable manner. Having regard for the foregoing I dismiss these applications in accordance with the provisions of s.31(1) of the Industrial Relations Act 1984 and I so order
J G King Appearances: Date and place of hearing: |