T8945
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Aron Stewart Harvey and Westari Pty Ltd
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 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:
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:
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:
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 Appearances: Date and place of hearing: |