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Tasmanian Industrial Commission

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T8945

 

TASMANIAN INDUSTRIAL COMMISSION

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

Aron Stewart Harvey
(T8945 of 2000)

and

Westari Pty Ltd

 

COMMISSIONER P C SHELLEY

HOBART, 23 June 2000

Industrial dispute - termination of employment - alleged breach of award - termination unfair - failure to pay annual leave due - compensation ordered - payment of annual leave ordered

REASONS FOR DECISION

On 18 April 2000, 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 respondent) arising out of the termination of his employment and the alleged breach of the Fish, Aquaculture and Marine Products Award.

On 19 April 2000, the President convened a hearing at 'Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania, before myself, to commence on Wednesday, 24 May 2000 at 10.30 am.

On that date the employer did not enter an appearance and the matter was adjourned so that the respondent employer could be given a second opportunity to appear. Accordingly, the matter was relisted for hearing at 9.00 am on Thursday 15 June 2000.

On 25 May 2000 I wrote to the employer at their registered office at 51 Davey Street, Hobart, and at the address which appears on the letterhead of Westari Pty Ltd, PO Box 492, Rosny Park, in the following terms:

"On 19 April 2000 I informed you and other interested parties, in writing, that I proposed to hear the above matter at 10.30 am Wednesday 24 May 2000. The Registrar notified the place of hearing as 'Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania. ...

On the morning, when the case was called on, Aron Stewart Harvey registered an appearance on his own behalf. The record shows, however, that you did not appear and that no person appeared on your behalf.

As you were not in attendance, I determined that the matter should be adjourned to another date, thus giving you another opportunity to be represented in person or by an agent.

... Therefore, I inform you that the matter has been relisted for hearing at 9.30 am on Thursday, 15 June at 'Lyndhurst' ...

If you are not in attendance on that day, I hereby give notice that pursuant to section 21(2)(e) of the Act, that I intend to hear and determine this application in your absence."

On 15 June 2000, when the hearing resumed, Mr Aron Harvey represented himself and the employer again failed to register an appearance.

The hearing proceeded in the absence of the respondent employer under section 21(2)(e) of the Act.

Background

The facts are that Mr Harvey was employed by Westari Pty Ltd from 23 August 1999 until 11 April 2000, when he was dismissed by letter, without notice or payment in lieu of notice.

The Case for the Applicant

Mr Harvey began by referring the Commission to a previous hearing, T8911 of 2000, which was heard on 11 April 2000. In that case, I determined in a decision dated 11 April, that Mr Harvey had been suspended without pay, on 19 March 2000 from his employment with Westari Pty Ltd, and that the terms of the Fish, Aquaculture and Marine Products Award contained no provisions which allowed for the standing down of employees without wages. During that hearing it was agreed between the parties that Mr Harvey was still employed and a Consent Order was issued, ordering the employer to pay a sum of money to Mr Harvey in settlement of that dispute.

Mr Harvey said that shortly after that hearing he received a letter of termination, dated 11 April 2000, which said:

"Westari PTY. LTD. Hereby confirm that your Contract of Employment is Terminated With immediate effect.

Reason for termination is for willful (sic) neglect in discharge of the duties of the described Position. ...

Westari Pty. Ltd. Reserves the right to take legal action to recover losses sustained, Due to your willful (sic) neglect of your duties.

Westari Pty. Ltd. Advises you that all payments awarded to you by the Tasmanian Industrial Commission (Matter No T8911 of 2000) will be subject to appeal. WESTARI PTY LTD reserves the right to appeal this matter as Your application was based on False and Misleading information.

Signed by Mr Ken Lee, Director, Westari Pty Ltd.

In response to a question from the Commission Mr Harvey said that he had been given no opportunity to discuss the letter of termination or to put his side of the case, and that Mr Michael Berry (who had previously appeared on behalf of Westari Pty Ltd) was not willing to make any comment on the matter, and that he had not had any discussions with the directors themselves in relation to the dismissal.

Mr Harvey said that the "wilful neglect" referred to in the letter was in relation to stock losses suffered when a refrigeration unit was turned off by another employee. The other employee had turned the gas off without Mr Harvey's knowledge and without having been authorised to do so. This action resulted in damage to product as a result of it having thawed.

A few days later the problem was discovered and Mr Harvey was suspended, without notice, he said. He told the Director, Mr Ken Lee, that the incident was an accident, but he was not given the opportunity to have his say about what had happened.

Following his suspension from employment, Mr Harvey said that he "badgered them" (Westari Pty Ltd) as to the reason for his suspension, but he was not given a proper reason. It was not until he received the letter of termination that he knew what the suspension was actually for (alleged wilful neglect).

Mr Harvey said that the act of turning off the gas was not something that normally happened and that he was still "at a loss" as to why the employee had done so.

Whilst he had made an application for reinstatement, Mr Harvey said that was no longer a possibility, due to the fact that the facility had completely closed down. In terms of remedy, he said that he would be happy with the payment that had been previously ordered by the Commission (and not yet paid), plus holiday pay owing.

Findings

In the absence of any evidence to the contrary, I accept Mr Harvey's version of the events which led to the termination of his employment.

Mr Harvey was held responsible for the actions of another employee, and was immediately suspended without pay from his employment. He was given no opportunity at that stage to put his case, nor was he told the reason for the suspension.

Immediately following a hearing before myself, which resulted in an Order being issued for payment of wages during the period of the suspension, Mr Harvey was dismissed by letter for "wilful neglect". The letter does not make reference to the nature of the alleged wilful neglect of his duties.

I find that the employer's action in dismissing Mr Harvey as a result of the actions of another employee to be for no valid reason and to be substantively unfair. I also find the failure of the employer to give Mr Harvey full particulars in relation to the reason for his dismissal and an opportunity to respond, to be procedurally unfair.

Remedy

Section 31(1B) of the Industrial Relations Act 1984 states:

"If a Commissioner, in hearing an industrial dispute relating to termination of employment, considers that an employee or former employee has been unfairly dismissed but reinstatement to the employee's or former employee's previous position is impractical, the Commissioner, if of the opinion that it is appropriate to do so, may make an order requiring the employer to pay the employee or former employee compensation of any amount the Commissioner determines appropriate."

In this case, it is clear that reinstatement is not practical, given that the employer has closed down its operations in Tasmania. Accordingly, I intend to order payment of compensation for unfair termination of employment.

In considering what that compensation should be, I have relied on the precedent established in Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCA 1994, in which Wilcox J said:

"... in assessing compensation ... it is appropriate to consider what would have been likely to occur if that breach had not occurred. It should not be assumed that the employee would have been dismissed anyway. Such an assumption ignores the rationale of procedural fairness and everyday experience that decision-makers often change their minds when presented with another side of a case. ...

On the other hand, it would be unrealistic for a court automatically to assume that, ... the employee's employment would have continued indefinitely. ...

So, had Mr Harvey not been dismissed, what would have been likely to happen? In view of the fact that the employer ceased operations in Tasmania a few weeks following Mr Harvey's dismissal his employment would have been unlikely to continue past that date, and a redundancy situation would have arisen.

In view of the above I intend ordering three weeks' pay in lieu of notice, plus three weeks' wages per year of service or part thereof. This amounts to five weeks wages.

I also find that Westari Pty Ltd failed to pay to Mr Harvey annual leave payments due, amounting to three weeks wages.

Mr Harvey's weekly rate of pay was $576.92, therefore the amounts due are $1730.76 in lieu of notice, $1153.84 compensation for unfair dismissal, and $1730.76 for unpaid annual leave.

ORDER

PURSUANT TO the power conferred on me 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 8945 of 2000, the employer, Westari Pty Ltd, pay to Mr Aron Stewart Harvey of 4 Wickham Court, Claremont, Tasmania, 7011, the sum of Four Thousand, Six Hundred and Fifteen Dollars and 36 Cents, in full settlement of this dispute, such payment to be made on or before the close of business Friday 7 July 2000.

 

P C Shelley
COMMISSIONER

Appearances:
Mr Aron Harvey, representing himself

Date and place of hearing:
2000
May 24
June 15
Hobart