T8911
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Aron Stewart Harvey and Westari Pty Ltd
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.
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.
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.
The hearing was then adjourned into conference. Following discussions, I made the following comments, on record.
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 Appearances: Date and place of hearing: 1 Transcript 11/4/00, p.2. |