T9162
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Pamela Joy Jones and Rod Mills Telemarketing Consultant
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:
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:
Mr Mills responded on 28 August as follows:
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:
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:
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 Appearances: Date and Place of Hearing: 1 Transcript, p. 7 |