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Tasmanian Industrial Commission

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T8911

 

TASMANIAN INDUSTRIAL COMMISSION

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

Aron Stewart Harvey
(T8911 of 2000)

and

Westari Pty Ltd

 

COMMISSIONER P C SHELLEY

HOBART, 11 April 2000

Industrial dispute - termination of employment - alleged breach of the Fish, Aquaculture and Marine Products Award - employee not terminated but suspended without pay - payment of wages ordered

REASONS FOR DECISION

On 28 March 2000, Mr Aron Stewart Harvey (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Westari Pty Ltd (the employer) arising out of the termination of his employment and alleged breach of the Fish, Aquaculture and Marine Products Award.

On 29 March 2000, the President convened a hearing at `Lyndhurst', 448 Elizabeth Street, North Hobart, before myself, to commence on Tuesday, 11 April 2000 at 9.30am.

On Monday 10 April, the day before the hearing, the Commission received, per facsimile, a request from Mr Michael Berry, on behalf of Westari Pty Ltd, for a "postponement" of the hearing due to the fact that the Director of the company was in Singapore. The applicant was unable to be contacted prior to close of business on that day, consequently the hearing went ahead as scheduled.

At the hearing Mr Aron Harvey represented himself and Mr Michael Berry appeared as agent for Westari Pty Ltd.

Mr Berry requested an adjournment of the matter on the basis that Mr Ken Lee, Director of the company, wished to handle the matter himself. However, Mr Berry did indicate that he had attempted to negotiate a settlement directly with Mr Harvey in the days leading up to the hearing.

"Mr Berry: ..I have tried to be some form of arbitrator between management of Westari and Aron to come to some form of settlement and had discussions with Aron as to trying to create some sort [of] settlement between the company"1

On that basis, I indicated that, following an overview being given by the parties, the Commission would have discussions in conference to see whether or not a settlement could be reached, and failing that, the matter would be adjourned and another hearing day would be set.

"Commissioner: Given what you've just told me in relation to the discussions that you've been having with Aron in an attempt to, as you say, negotiate some sort of settlement at that level, then we can certainly pursue that today with the assistance of the Commission............If we're unable to do that, then we will grant your request for an adjournment and we'll adjourn to another date, so that the matter can proceed to full hearing"2.

Mr Harvey and Mr Berry each gave an overview of the circumstances surrounding the dispute, which concerned actions taken by the employer following damage to product, allegedly caused by Mr Harvey's failure to ensure that a freezer was operating correctly on the weekend of 18 and 19 March 2000.

On 19 March the company suspended Mr Harvey from his employment, without pay. Mr Harvey's weekly rate of pay was $576.92. It was common ground that Mr Harvey was not paid wages owed up until 19 March and had not been paid any wages since that date.

There was no difference between the accounts given by the parties in relation to the above matters, although there were differences in relation to the events surrounding the fact that the freezer operated without gas for a period of time, the amount of stock damaged, and whether or not stock was able to be salvaged.

Mr Harvey and Mr Berry said that the status of Mr Harvey's employment was that of suspension without pay, rather than termination of employment. Mr Berry said that Mr Harvey was suspended without pay until such time as the Director could ascertain what Mr Harvey's "punishment'' was to be.

"Mr Harvey: I wasn't actually given notice of termination but I was given notice - after I badgered them and badgered them, I was eventually given notice of suspension....."3

"Mr Berry: ...yes, the suspension was basically until such time as the director of the company could ascertain what damage had been sustained to the product in the blast and what course of action could be taken to salvage the product and/or punish Aron..."4

The hearing was then adjourned into conference. Following discussions, I made the following comments, on record.

"The parties have agreed that Mr Harvey is still employed, although suspended, and is to be paid wages owing up until today."5

I also indicated that I would set down a further hearing date in relation to the dispute concerning Mr Harvey's continuing employment and the suspension which gave rise to the unfair dismissal application.

Upon further consideration however, I have concluded that the agreement reached between the parties to the effect that Mr Harvey is still employed effectively deals with the alleged unfair termination of employment.

It follows that, as Mr Harvey's is still an employee of Westari Pty Ltd then he is entitled to be paid as such. The Fish, Aquaculture and Marine Products Award contains no provision which allows for the standing down of an employee without pay.

Should Mr Harvey be dismissed at some time in the future in relation to the events surrounding this application, then it is open to him to bring a fresh application within fourteen days of the date of any such dismissal.

In view of all of the above, I issue the following Order:

ORDER

PURSUANT TO the power conferred on me by Section 31(1) of the Industrial Relations Act 1984 I HEREBY ORDER that, in settlement of the industrial dispute referred to in matter T No 8911 of 2000, the employer, Westari Pty Ltd, pay to Mr Aron Stewart Harvey of 4 Wickham Court, Claremont, Tasmania, 7011 the sum of Two Thousand Three Hundred and Seven Dollars and 68 Cents, in full settlement of this dispute, such payment to be made on or before the close of business Tuesday 18 April 2000.

 

P C Shelley
COMMISSIONER

Appearances:
Mr Aron Harvey, representing himself
Mr Michael Berry, as agent for Westari Pty Ltd

Date and place of hearing:
2000
April 11
Hobart

1 Transcript 11/4/00, p.2.
2 Transcript 11/4/00, p.2,
3 Transcript 11/4/00, p.4.
4 Transcript 11/4/00, p.4.
5 Transcript 11/4/00, p.8.