T8795
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tammy Maree Stubley and Sandy Bay Caravan Park
Industrial dispute - alleged unfair termination of employment - alleged breach of award - award interpretation - contractor - records of employment incomplete and insufficient REASONS FOR ORDER [1] This was an application for a dispute hearing made under Section 29 (1A) of the Industrial Relations Act 1984 (the Act) by Tammy Maree Stubley of Dynnyrne, Hobart (the employee). [2] The employee was in dispute with Brian and Harriette Dutton, trading as Sandy Bay Caravan Park of Sandy Bay, Hobart (the employers) over the alleged unfair termination of her employment, severance pay and an alleged breach of the Hotels, Resorts, Hospitality and Motels Award (the first award). [3] The employee worked as a part-time cleaner at the Sandy Bay Caravan Park (the Park). She nearly always worked at weekends only, and her hours of work depended on the workload which varied with the occupancy rate, but, generally she worked less than eight hours each day. [4] Mr G Faulds, for the employee, and Mr B Dutton, for the employers (representing himself and Harriette Dutton) both legal practitioners, sought and were granted leave to appear before the Commission. [5] Eventually, it was determined by the President of the Commission (in a decision arising out of an interpretation application (T9027 of 2000)], parallel and directly related to this application, that the employee was not covered in her employment by the scope of the first award. [6] For all intents and purposes, therefore, I am satisfied that the employee was covered in her employment as a cleaner at the Park by the scope of the Miscellaneous Workers Award (the second award). [7] Early in proceedings the employee withdrew her claim for a severance payment. [8] The employee commenced work as a cleaner at the Park in 1994 and her employment was terminated over the telephone on 1 January 2000 by Mr Dutton. The reason for the employment termination was the alleged failure of the employee to properly clean two of the toilet blocks at the Park on the day of her dismissal, 1 January 2000. The employee claimed she had cleaned the toilet blocks properly on that day. The Commission heard evidence from the employee, the employers and two others on behalf of the employers as to the cleaning of the toilet blocks on the day in question. [9] The Commission also heard evidence as to the employee's work history and performance during the time of her employment at the Park. [10] In evidence, Mr Dutton said he had become concerned about Mrs Stubley's inflated hours claims and also with the quality of her work from late-1997. From time to time, Mr Dutton spoke to the employee about the quality of her work and he said she improved, but, only temporarily each time. In all these discussions nothing was confirmed in writing with Mrs Stubley and kept as a record, nor was Mrs Stubley's pay reduced as a consequence. [11] The employee claimed she had been dismissed summarily and unfairly in that she was not given the benefit of due procedure. [12] As to the alleged breach of the second award, the employee produced as evidence her own book of records1 which contained some details of dates, her hours of work and wages paid to her in the period from 25 March 1995 to 1 January 2000. [13] The employers also produced records (generally signed by the employee) which included wages paid and hours worked, but, they did not show an hourly rate relating to the hours worked, nor were they complete records for the period in question. As time and wages records they were inadequate. [14] The employers did not provide pay slips detailing the amounts paid, tax deducted and net pay. [15] There was evidence also that, for the period 6 June 1999 until the date of the employee's dismissal, the cleaners at the Park were required to work under a contractual arrangement. A contractual document was produced as evidence2. In essence, the employee was paid a set rate for each caravan, cabin or cabinette cleaned, plus other set rates for other work (eg, the toilet blocks and washing and drying linen]. The employee submitted that she was not a contractor for the period mentioned and claimed she had at all times been an employee and hence entitled to the relevant award provisions. [16] During the course of proceedings, the employers sought to discredit the evidence of the witness and the witness herself. In so doing, in a number of instances, matters irrelevant to the issues before the Commission were raised. Conclusions [17] The definition of a part-time employee provided in the second award says: "'Part-time employee' is one engaged to regularly work for less hours per day or week than those prescribed for full-time employees." [18] I am satisfied, on the evidence, that Mrs Stubley regularly worked at weekends and therefore was a part-time employee for purposes of the second award. [19] I am satisfied that Mrs Stubley, for all intents and purposes, for the whole of her employment at the Park, was an employee and not a contractor. She was required to work weekends regularly and, even though starting and finishing times varied, she was required to attend around mid-morning and leave when the available work was completed, which was usually around mid-day or early afternoon. Her work was supervised and all materials and equipment necessary to perform her tasks were supplied by the employers. I say her work was supervised because the evidence was that she was warned often about her work and at times others repeated the work. [20] The latter comment leads to a consideration of the circumstances surrounding her employment termination. The evidence, which, in this regard I accept, was that the employers had spoken to Mrs Stubley a number of times about the quality of her work and the amount of time she took to carry it out. The employers said the introduction of the contract system (for the weekend employees only) was specifically an effort to reduce or control the amount of time Mrs Stubley took to complete her work each day. [21] I am satisfied also, on the evidence, particularly that of Mrs Dutton, that Mrs Stubley failed to clean or properly clean the toilet blocks on the day her employment was terminated. The strange element in this matter was that the employers, being aware of Mrs Stubley's alleged failings, did not take any effective action to remedy the situation over a long period, nor did they keep a record of the cautions or warnings that did take place. [22] In all the circumstances I have outlined in relation to Mrs Stubley's employment termination, I will not intervene in that part of her application and it is dismissed. [23] Because the employers failed to keep proper records of time and wages, the Commission has been unable to accurately assess the amount of wages Mrs Stubley should have been paid for the hours and days she worked during the whole period of her employment at the Park. In the attachment to this decision, marked "Annexure A", an assessment based upon the evidence that was available has been made. The evidence has been gleaned from documents presented at the hearing. Documentation provided by the employers includes dates and amounts paid, daily time sheets (not complete), cash payment slips for the period of the alleged contract work. Documentation provided by Mrs Stubley includes private records showing dates, amounts paid and hours worked (not complete). [24] The assessment in the attachment marked "Annexure A" is primarily based on the evidence obtained from Mrs Stubley's diary, which I accept as bona fide. This primary source of evidence is incomplete and, in the light of the employers' inadequate records (which should have been the primary source), the Commission is unable to assess what other monies may have been due to Mrs Stubley. [25] I find on the evidence before me that Mrs Stubley was underpaid during the course of her employment at the Park. The following order reflects the balance of wages she should have been paid as a part-time cleaner under the second award (as calculated and set out in Annexure A) based on the evidence before the Commission. [26] As to the claim for superannuation underpayments, there was little and insufficient evidence put to the Commission to enable an order to be issued on the subject. That part of Mrs Stubley's claim is also dismissed. Order In accordance with the power vested in me under Section 31(1) of the Industrial Relations Act 1984, in settlement of this dispute, I hereby order that, within 21 days from the date of this decision, Brian and Harriette Dutton, (now) trading as Sandy Bay Caravan Park Resort, of Sandy Bay, pay to Tammy Maree Stubley of 36 Waterworks Road, Dynnyrne, Tasmania 7005, the sum of seven thousand and eighty-eight dollars and forty-one cents ($7,088.41).
P A Imlach Appearances: Date and place of hearing: 2001 ANNEXURE A
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