T8770
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Jason Scott Lumley and Tasmanian Sandstone Pty Ltd ACN 063 543 706
Industrial dispute - termination of employment - alleged breach of registered agreement - order 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 Jason Scott Lumley of Buckland. Mr Lumley was in dispute with Tasmanian Sandstone Pty Ltd (trading as Tasmanian Sandstone) of Adelaide in South Australia (the Company) over the alleged unfair termination of his employment on 14 December 1999. The Company ceased operations on 24 January 2000 and was in 'voluntary administration' at the time of hearing. When it was operating, the Company was covered by the Tasmanian Sandstone Enterprise Agreement 1999 (the Enterprise Agreement) which was approved and certified by Acting Enterprise Commissioner B R Johnson on 15 November 1999, pursuant to the provisions of Section 61J of the Act. Mr Lumley was represented by the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the Union) and the Company was represented by directors, Mr Peter Wood, leading, and Mrs M Wood. The Union sought the reinstatement of Mr Lumley's employment. The Union brought Mr Lumley and Mr Rodney James Sculthorpe as witnesses. Mr Lumley commenced full-time employment with the Company as a saw operator on 9 June 1999 [Exhibit W2]. On 11, 12, 13 and 14 December 1999, Mr Lumley was absent from work. He claimed his absence was due to a back problem. He also said he had telephoned the Company well before the first shift, on 11 December 1999, to notify his pending absence and the reason for it, but, he had to contend with the Company's telephone answering machine so he left the appropriate message in that way, adding (in his application) that he would be seeking medical attention. Mr Lumley claimed that when he notified his absence for the forthcoming shift, he meant the full period or number of four, twelve hour shifts he was commencing, not just one shift of twelve hours. Mr Lumley also said that, during the course of his absence, he had spent the time at a friend's place and not at home and he also said, after finding out that the Company had telephoned his home on 12 December 1999 seeking his whereabouts, he had telephoned the Company again, but, still had to contend with the answering machine and he left a second message that way. Mr Lumley said he went to a doctor on Monday, 14 December 1999 (in fact, the Monday was the 13th), and obtained a medical certificate (Exhibit W1) as to his condition and he presented it to the Company on 15 December 1999. He said his employment had been terminated soon after he presented the medical certificate. He said notice of termination had been waived by agreement. Mr Lumley said that during the period of his employment he had not been warned or cautioned in any way. He said that the advent of an enterprise agreement covering the work of the Company had caused a number of employees to leave their employment with the Company. The Union alleged that the Company had campaigned to get rid of permanent employees, like Mr Lumley, and replace them with casual employees. The Company alleged that telephone calls to the address at which Mr Lumley claimed to have been living whilst away from work for the period in question were not answered. The Company acknowledged receiving the first of Mr Lumley's telephone calls, but, denied receiving the second alleged telephone call from Mr Lumley. The Company said Mr Lumley had been spoken to previously because he had not notified an earlier three months' absence. Mr Lumley claimed his lawyer had notified the Company at the time of his absence. The Company also said Mr Lumley had been formally warned over alcohol consumption affecting his work. Mr Sculthorpe, who was the Company's cutting plant supervisor at the time of Mr Lumley's employment termination, but, had since resigned, said Mr Lumley had been a good, reliable, punctual employee whom he did not have to warn or reprimand at any time. He agreed with the Company that the amount of work and the number of employees had increased over the period. He also agreed that, during the time in question, no other employees had been terminated. The Union pointed out that no documentary evidence of the Company's allegations had been forthcoming; there had been accusations, but, no evidence. The Company disputed Mr Lumley's claim that the notice of termination period had been dispensed with by agreement, saying he had been offered two weeks' day work as notice, but, he had refused. It was extremely difficult to resolve this dispute because of the lack of proper evidence from the Company, and the decision of its directors to represent themselves. On the other hand, it is hard for the Commission to overlook witness evidence given under oath which was not countered, save for allegations made from the bar. In these circumstances, the Commission generally accepts the evidence given by Mr Lumley and Mr Sculthorpe. I am satisfied that on the days in question Mr Lumley was absent from work on account of illness and he made reasonable attempts, in accordance with the Tasmanian Sandstone Enterprise Agreement 1999, Clause 18.2 Sick Leave Notification, to notify the Company in time of the reasons for his absence. I am also satisfied that Mr Lumley was not properly warned at the time of previous alleged misdemeanours. For these reasons, I find that Mr Lumley's employment was terminated unfairly and I will order that he be paid his wages for the remainder of the period of the Company's operation, that is, from 15 December 1999 to 24 January 2000, inclusive. I am not satisfied, on the evidence, that Mr Lumley was entitled to sick leave for the work for which he was rostered between 11 and 14 December 1999 and I dismiss that part of the Union's claim. Order In accordance with the power vested in me under Section 31(1) of the Industrial Relations Act 1984, in settlement of this dispute, I hereby order that, within fourteen (14) days from the date of this decision, Tasmanian Sandstone Pty Ltd of 313 Ward Street, North Adelaide, South Australia, pay to Jason Scott Lumley of Buckland the amount of wages he would have received had he been in employment as a Level 2 Saw Operator under the terms of The Tasmanian Sandstone Enterprise Agreement 1999, for the period 15 December 1999 to 24 January 2000, inclusive.
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