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T9162

 

TASMANIAN INDUSTRIAL COMMISSION

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

Pamela Joy Jones
(T9162 of 2000)

and

Rod Mills Telemarketing Consultant

 

COMMISSIONER T J ABEY

HOBART, 22 September 2000

Industrial dispute - alleged unfair termination and alleged breach of the Clerical and Administrative Employees (Private Sector) Award - application refused - file closed

REASONS FOR DECISION

On 28 August 2000, Pamela Joy Jones (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984 for a hearing before a Commissioner in respect of an industrial dispute with Rod Mills Telemarketing Consultant (the employer) arising out of the alleged unfair termination of her employment and the alleged breach of the Clerical and Administrative Employees (Private Sector) Award.

On 31 August 2000, the Acting President convened a hearing at "Lyndhurst", 448 Elizabeth Street, North Hobart, before myself, to commence on Monday 18 September 2000 at 10.30 am. Mr Ian Paterson of the Australian Municipal, Administrative, Clerical and Services Union (ASU) appeared for the applicant and Mr Rod Mills represented himself.

The application concerned the alleged unfair termination of employment of Miss Jones by the employer together with an alleged breach of the Clerical and Administrative Employees [Private Sector] Award. During the proceedings Mr Paterson advised that the claim concerning the alleged award breach would not be pursued.

After hearing preliminary submissions the hearing was adjourned into private conference, with the Commission, in an attempt to find a settlement to the dispute.

The conciliation conference failed to find a resolution to the dispute and as a consequence the hearing was resumed. Both Miss Jones and Mr Mills gave sworn evidence going to the nature of the employment relationship and the events leading up to the cessation of Miss Jones' employment.

BACKGROUND

The employer operates a telemarketing business which solicits sponsorship for disadvantaged children to attend various forms of entertainment. The client base for the business appeared to be predominately service clubs such as Rotary and Lions. Mr Mills runs the business through a series of campaigns based on the major population centres. These campaigns average around four to seven weeks in duration and run continuously for about nine months of the year.

Miss Jones commenced working for the employer on 24 January 2000. Miss Jones had also worked for Mr Mills for a period during 1999 but there was no continuity between the two periods of employment.

It is common ground that Miss Jones was initially engaged to work 32 hours per week. She fulfilled two functions, one of secretary/personal assistant to Mr Mills and the second role as a telemarketer. It would appear that the time spent on each function was approximately 16 hours a week. Miss Jones was paid at the rate of $15.50 per hour which included a 20% loading in lieu of annual leave, sick leave and public holidays.

In her application to the Commission, Miss Jones described her employment status as "casual-part time". This is an important issue which I will return to later. Miss Jones worked 32 hours a week on a regular basis from January to July 2000. On or about 24 July her hours were reduced from 32 to 16 a week. The evidence of Miss Jones on this event is as follows:

"... I was ill so my fiancé called from his place of employment and was told, that that's all right, I was cutting her hours anyway, I will ring her when I need her ...

I went down that afternoon and met with him ... I said you're cutting my hours. He said, yes. And he said, you can come in and allocate the tickets. That will be four hours a day, four days a week for the four weeks. That's the deal. That's the only deal." 1

Miss Jones, whilst understandably disappointed with the cut in hours, continued to work 16 hours a week for the balance of the Hobart campaign, that is, until 18 August 2000.

What happened next is not entirely clear. Mr Jones moved the operation to Launceston for the next campaign which commenced on 21 August. Miss Jones was not present.

On 22 August Miss Jones wrote to Mr Mills in the following terms:

"I refer to my recent employment with your business.

As this employment was terminated before the agreed duration was completed, I am examining the means available at law to obtain what is owing to me in lost wages.

I consider legal action to be a last resort. However, I believe that I have been treated unfairly by you and expected more consideration for the commitment I have given over the last year.

In order to save you unnecessary cost and inconvenience I am extending to you the opportunity to meet your obligation by paying $3820.00. I have calculated this amount on the following basis: 4 weeks x 16 hours and 6 weeks x 32 hours @ $15.50 per hour.

Having sought and received advice on this matter I am filing an application for unfair dismissal with the Tasmanian Industrial Relations Commission. However, if I receive a positive response from you within 7 days of the date of this letter, I will withdraw this application.

My preference is that any further communication from this point be in writing to the above address." 2

Mr Mills responded on 28 August as follows:

"Thankyou for your recent correspondence, however I must say that I am not only shocked but amazed at your interpretation of recent events concerning your hours of work.

As you know you were originally employed by me as a casual secretary/personal assistant on an hourly rate of $11.50 per hour, you were not engaged as a telemarketer on commission.

I have always attempted to give you more hours per week by allowing you to perform some telemarketing work on a new hourly rate of $15.50 when it was available, however as you know Brian Gallagher from the Rotary Club of Hobart requested that we not ring certain organisations, and, as a result we had 2,000 less cards to ring. Our operating database was reduced and I was obliged to give the telemarketing work to those people who were employed by me as telemarketers working on commission.

Unfortunately there was never 32 hours worth of work per week available for you unless you performed telemarketing work, which we had discussed many times.

Your position is still available to you with my business but unfortunately I still cannot offer you more than 16 hours per week at $11.50 per hour. And you are most welcome as you always have been to continue on in my employment as my secretary/personal assistant.

To clear up any misconceptions in relation to telemarketing, should the situation improve and our data base work improve I am prepared to allocate some of this work to you on a commission basis, however there is no guarantee that it will improve.

Please reply no later than the 31st August 00 if you wish to continue your employment with me - you have my phone no. and my address, otherwise I will have to fill your position as I still need a casual secretary/personal assistant.

I do hope that you reply by phone or mail." 3

During the hearing Mr Mills explained that the reference to $11.50 per hour was a mistake and should have read $15.50 per hour. I accept that this was the case but observe that it was indeed a most unfortunate mistake.

There was no further correspondence or dialogue between Miss Jones and Mr Mills up until the date of this hearing.

SUBMISSIONS OF THE APPLICANT

Mr Paterson submitted that Miss Jones was engaged on the basis of a common law fixed term engagement for the period of the company's year 2000 campaigns in Tasmania. It followed that Miss Jones had a clear expectation of employment through all of the Tasmanian campaigns from 24 January through until the end of September or early October.

When Miss Jones inquired as to her employment status on 24 July she was given a "take it or leave it position" and her understanding was that was the end of her employment with this firm.

At the beginning of the Launceston campaign Miss Jones believed her employment had been terminated, Mr Mills knew that she was not there and he had done nothing to indicate that he wanted Miss Jones to be involved in the Launceston campaign.

Mr Paterson submitted that there had been inadequate communication and consultation about the process of change and the consequent impact on mutual expectations. As such, the circumstances did constitute an unfair dismissal. However given the short time remaining in the campaign, the difficulties in Miss Jones relocating at short notice and the element of tension in the relationship at the end of the Hobart campaign, reinstatement was impracticable.

By way of compensation Mr Paterson sought an amount equivalent to the lost wages for the six weeks of the lost Launceston campaign at 16 hours a week at $15.50 an hour, an amount totalling $1488.

SUBMISSIONS OF THE EMPLOYER

Mr Mills submitted that he did not enter into fixed term durations of employment and that every person who works for him does so on the basis of campaign to campaign.

He explained that Miss Jones' hours had been reduced on 24 July as a direct consequence of a substantial reduction in the data base available for telemarketing. This had been imposed by the client on 21 July and was totally unforeseen. In the circumstances he had chosen to share the available telemarketing amongst employees who had been specifically engaged as telemarketers, mostly on a commission basis. The reduced data base in turn translated to the Launceston campaign although Mr Mills conceded that he was not aware of the full impact until the Launceston campaign actually commenced.

Mr Mills stated that he had never actually terminated the employment of Miss Jones, he had reduced her hours. He said that Miss Jones was a "great secretary" and was still able to work for him on the reduced hours basis.

FINDINGS

There can be little doubt that when Miss Jones commenced employment on 24 January she had a reasonable expectation that she would be employed for 32 hours per week for the full duration of the Tasmanian campaigns. I suspect that Mr Mills had a similar expectation, assuming that circumstances followed the 1999 pattern. There is however a difference between a "reasonable expectation" on the one hand and a binding contractual relationship on the other. This brings me to a consideration of the employment status of Miss Jones as this is pivotal.

In the application Miss Jones describes her status as "casual-part time". It must however be one or the other. It is clear that Mr Mills considers that Miss Jones was employed on a casual basis. Mr Paterson submitted that the character of the employment relationship did not comply with the definition in the award. Clause 7 of the Clerical and Administrative Employees [Private Sector] Award defines a Casual Employee as follows:

"... means any person specifically engaged to work on an irregular basis, as and when required by mutual consent between employer and employee, but does not include any person employed on a part-time or full-time basis."

Whilst the regular 32 hours per week applicable from January through to July does have some of the characteristics of a part-time contract I do accept Mr Mills' contention that employment is on a "campaign to campaign" basis. This is reinforced by Miss Jones' acknowledgement that she did ask Mr Mills, on or about 10 July, whether she would be required for the Launceston campaign.4 It is clear that Mr Mills employed a different number of people for each campaign, that this varied from year to year and some but not all employees worked for two or more campaigns each year. The work available for each campaign was reasonably regular, unless there was a major hiccup, as instanced by the significantly reduced data base in this case.

I have reached the conclusion that whilst the characteristics of Miss Jones' employment are not a perfect fit with the award definition of a "casual", it was a mode reasonably open for Mr Mills to offer, and indeed is arguably a better fit than that of a part-time employee. Having concluded that Miss Jones was properly engaged on a casual basis does not of course absolve the employer from acting fairly in all the circumstances.

The situation which led to the reduction in Miss Jones' hours was entirely unforeseen. The employer was faced with a situation whereby the amount of work available was substantially reduced and he clearly had to take some action. Mr Mills chose to share the available work amongst those employees who had been specifically engaged as telemarketers. It was a decision that was open to the employer and not one which this Commission finds fault with. Regrettably this decision impacted negatively on Miss Jones' situation and she was understandably disappointed and probably upset. I strongly suspect that from this point on there was a significant breakdown in communication between Miss Jones and Mr Mills. Whether Mr Mills conveyed to Miss Jones the specific nature of the data base change is unclear, but certainly she was aware that there was a problem.

As Mr Paterson said in closing submissions:

"We are not making a claim that her hours should have been maintained at 32 hours per week. I accept, and Ms Jones accepts, that at the end of the day Mr Mills did have a valid reason for reducing hours. There are a number of ways in which he could have done that although ultimately I concede that it's his prerogative to arrange his staffing in the way he sees best fit for the nature of his business." 5

This brings us to the Launceston campaign where the circumstances are clouded to say the least. Miss Jones claims that her employment came to an end at the conclusion of the Hobart campaign by virtue of the conversation with Mr Mills on 24 July. Mr Mills claims that he never at any stage terminated the employment of Miss Jones and while there have been serious shortcomings in communication, there is no evidence that he did.

As it turns out, not a great deal turns on this issue. What is pivotal is the correspondence between Miss Jones and Mr Mills dated 22 August and 28 August. Miss Jones sought compensation and Mr Mills responded by offering her ongoing employment which, allowing for the mistake in the hourly rate, was on the same basis as the latter part of the Hobart campaign. The fact that Mr Mills during the hearing again offered employment for the balance of the Launceston campaign convinces me that the offer of 28 August was genuine. I also believe that the same offer would have been made prior to the Launceston campaign had a workable relationship existed between Miss Jones and Mr Mills.

It was of course open to Miss Jones to reject the offer for a range of reasons not the least of which would be the cost of relocating to Launceston for what was a 16 hour per week position. However rejecting the offer does not in my mind give rise to justification for compensation.

The primary remedy under Section 31 of the Act is reinstatement of employment. Leaving aside for the moment the issue of whether or not there was a termination, I have reached the conclusion that the equivalent of reinstatement was offered and rejected. For these reasons I am not prepared to grant the applicant's claim for compensation.

The hearing is discontinued and the file is closed.

 

Tim Abey
COMMISSIONER

Appearances:
Mr I Paterson of the Australian Municipal, Administrative, Clerical and Services Union for Miss P A Jones.
Mr R Mills for Rod Mills Telemarketing Consultant.

Date and Place of Hearing:
2000
September 18
Hobart

1 Transcript, p. 7
2 Exhibit P1
3 Exhibit P2
4 Transcript p. 9
5 Transcript, p. 13