T9322
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union - and Chau Nominees Pty Ltd and Whitby Pty Ltd
Industrial dispute - alleged unfair termination - wilful misconduct not found - summary dismissal a disproportionate response - reinstatement impracticable - compensation ordered REASONS FOR DECISION On 11 December 2000, the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Chau Nominees Pty Ltd and Whitby Pty Ltd trading as Mother Goose Child Care Centre (the employer) arising out of alleged unfair termination of Mrs Glenda Fish. On 14 December 2000 the A/President convened a hearing before myself at "Lyndhurst", 448 Elizabeth Street, North Hobart, Tasmania to commence at 10.30am on 3 January 2001. When this matter first came on for hearing on 3 January 2001 Mr P Tullgren of the ALHMWU appeared for the applicant. Mr J O'Neill of the Tasmanian Chamber of Commerce and Industry Limited represented the employer. Jurisdiction Mr O'Neill raised a preliminary jurisdictional question. He contended that the application had been served on the "Mother Goose Child Care Centre" which was the trading name for the corporate entity of "Chau Nominees Pty Limited and Whitby Pty Limited". As such the application had not been properly served on the employer and it followed that the Commission lacked jurisdiction to hear the application. Following submissions from both parties I issued the following decision on transcript:
Having determined the preliminary issue the hearing was adjourned into private conference, with the Commission, in an effort to find a resolution to the dispute. This however proved to be unsuccessful and the application was set down for hearing on 5 January. Background Mrs Fish had been employed at the Mother Goose Child Care Centre for nearly seven years. She had at various times been employed as a carer, cleaner and cook and for the last four years had performed the duties of carer and cook. Mrs Fish was employed on a part-time basis for five and a half hours per day, five days a week. The relevant Award is the Child Care and Childrens Services Award. In June 2000 Mrs Fish was involved in a disciplinary issue relating to the non refrigeration of soup and the cooking of chickens allegedly from a frozen state. This incident culminated in the issuing of a "first and final warning".1 On 28 November 2000 the employment of Mrs Fish terminated in somewhat unusual circumstances. This will be outlined in greater detail later in this decision but can be briefly summarised as follows. On the previous day Mrs Fish had taken delivery of a quantity of food supplies including four frozen chickens. Mrs Fish proceeded to allow the chickens to thaw at room temperature, a practice the employer contends is contrary to Centre policy. The next morning Mrs Fish commenced to cook the chickens in the oven. Subsequently there was an exchange between the Centre Manager, Mrs Laing, and Mrs Fish, the outcome of which resulted in the termination of the applicant's employment. During the hearing evidence relating to these events was taken from the following witnesses:
Was There a Termination at the Initiative of the Employer? During final submissions Mr O'Neill argued that the termination was not at the initiative of the employer and that Mrs Fish had repudiated her contract through her own actions. As there clearly must be a termination at the initiative of the employer to invoke the jurisdiction of the commission, it is necessary to determine this issue first, prior to a consideration of the merits of the case. In relation to the conversation between the applicant and Mrs Laing on 28 November, Mrs Fish said:2
And later:
Mrs Laing's recollection of the same conversation was as follows:3
The proximity of Mrs Williams' work station meant that she partially overheard the conversation. Her statutory declaration4 said in part:
Later in her evidence Mrs Laing said as follows:5
I have no doubt that the intention of Mrs Laing was to implement an investigation into the incident and to follow the tenets of "procedural fairness" with which she is clearly familiar. Rather than ordering an immediate stop to the cooking of the chickens, Mrs Laing was clearly looking for a concession from Mrs Fish that her actions were inconsistent with Centre policy. It would appear that these best laid plans went astray when Mrs Laing made the comment along the lines of "... you could poison 70 little children ..."6. This, not surprisingly, gave rise to a defensive reaction from Mrs Fish which in turn led to the following comment from Mrs Laing:7
Despite the original laudable intentions of Mrs Laing I am quite satisfied that, in light of the events as they unfolded, Mrs Fish genuinely believed that she had been terminated. On this question Mr Tullgren referred the Commission to the judgement of Mohazab v Dick Smith Electronics,8 which says:
Having regard to the totality of the circumstances I am satisfied that the facts support a finding that Mrs Fish was terminated at the initiative of the employer. This finding of course does no more than invoke the jurisdiction of the Commission and allow for a consideration of the merits of the application. The Prior Warning In June 2000 Mrs Fish was involved in a disciplinary procedure arising from a written complaint from another staff member. In short summary, the complaints involved soup which had not been refrigerated and the cooking of chickens, allegedly from a frozen state. Considerable evidence was adduced from both sides going to the relative merits of the incidents involved and the subsequent "first and final warning". As I have observed on a previous occasion,9 I do not consider it the role of the Commission to review in fine detail earlier counselling sessions which often go back over a considerable period of time. Management has to manage and I consider it far more relevant to look at an employer's overall approach to disciplinary issues and, in particular, the question of procedural fairness. Applying this approach to the instant matter I find that, in terms of procedural fairness, the process followed by the employer in respect of this earlier disciplinary issue was without fault. The final outcome of this process was a detailed letter dated 23 June 200010 to Mrs Fish which concluded as follows:
Mrs Fish acknowledged that she did receive this letter and hence she should have been well aware that a further breach of Centre policy may have resulted in termination of her employment. The November 2000 Incident In accordance with normal practice, on Friday 24 November, Mrs Fish placed an order for food requirements for the following week. This order, which included four frozen chickens, was delivered at approximately 9.30am on Monday 27 November. Mrs Fish placed the chickens in a bowl and left them on the bench to thaw. Under cross-examination, Mrs Fish offered the following explanation as to why she did not thaw them in the fridge or microwave:11
The employer subsequently acknowledged that the fridge could not have accommodated the chickens in the bowl, but room could have been found if the chickens were separated. At approximately 1.30pm that day Ms Manning noticed the chickens on the bench and alerted Mrs Laing. They inspected the chickens together and Mrs Laing decided that, because they were partially defrosted, they could not be consumed. Initially they left the chickens as they were but later Mrs Laing returned and covered them with a tea towel. According to Mrs Laing's evidence:12
During the afternoon a number of staff approached Mrs Laing about the chickens. This certainly included Mrs Burns and Mrs Williams. In the case of Mrs Williams, the evidence is that Mrs Laing told her that they would not be able to use the chickens and that the Centre would have to get cold cooked chickens from a retail outlet. The chickens remained on the bench overnight until Mrs Fish commenced cooking them at approximately 8.30am the following day. The sequence of events thereafter is covered in the section dealing with the question of whether the termination was at the initiative of the employer. It is common ground that no-one spoke to Mrs Fish about the chickens. No attempt was made to dispose of the chickens and no note was left indicating that the chickens were not to be cooked. Breach of Centre Policy It is apparent that Mrs Fish's employment contract was terminated because the employer considered that there was a breach of policy in relation to health and hygiene. In my view the key tenets of good policy are as follows:
It should not come as a surprise to employees that a breach of policies which satisfy these criteria will inevitably have consequences. This is particularly so when a clear warning of the consequences of breaching such a policy has been issued. I turn now to apply these tests to the circumstances of Mrs Fish. It is of course entirely appropriate that a child care centre have policies relating to the hygienic handling of food. I also have no difficulty with the notion that such a policy may impose requirements that are more onerous than that which might be required of general community based health standards. In this context I refer to the submissions of Mr Tullgren relating to the Australia New Zealand Food Authority [ANZFA].13 Mr Tullgren contended that the science as endorsed by the appropriate food standards authorities made it clear that frozen raw meats, including chicken and turkey may be able to be safely thawed at room temperature. He argued that Mrs Fish "... engaged in an action which was not contrary to food handling policy that is best practice".14 Mr Tullgren went on to argue that the policies of the Centre, whilst well intentioned, are at variance with the relevant regulatory authority, and [by inference] are unreasonable and should be changed. I do not agree with Mr Tullgren's contention. Child care centres house a sector of the population which is particularly vulnerable to health risks. In such circumstances, it is quite open to centre operators to put in place policy standards which are more onerous than that which would apply to the population at large. A policy which forbids the thawing of frozen raw meat at room temperature fits quite comfortably within these parameters. Having said that, such a policy would go beyond the requirements of the relevant regulatory authority and beyond what is not an uncommon domestic practice. In such circumstances there is a clear onus on the employer to make it absolutely clear as to what the requirements are. It is not, in my view, sufficient to rely on a general understanding or "commonsense", because the requirements go beyond that which is encountered in everyday life. In this category would be the policy on reheating food. Whilst it was not tabled, this is a policy specifically written for the Centre and is clearly well understood. However the position is not so clear cut when it comes to the thawing of frozen raw meat. Exhibit R4 consists of a generic poster titled "Promote Safe Food". It was in fact obtained by Mrs Fish [presumably on her own initiative] and fixed to the kitchen wall. One of the seven "steps for safe food" states:
Whilst no-one would likely take issue with any of the messages in the poster, there is nothing to indicate that it is endorsed as inviolate Centre policy. It is true that the poster is specifically referred to in the "first and final warning" letter.15 The same letter also refers to a reference publication, "Caring For Children Food, Nutrition and Fun Activities" by Bunny and Williams, which is apparently kept in the kitchen. This latter reference referred to the thawing of food in the following terms:
It is noteworthy that this same publication provides advice on the refrigeration of hot food which appears to be at odds with the evidence in relation to the Lady Gowrie training course16 which Mrs Fish had previously attended. I also note in passing that the chickens which were cooked from an allegedly frozen state in the June 2000 incident, were in fact allowed by senior Centre staff to be consumed, despite the advice to the contrary in the Bunny and Williams publication. I turn now to the evidence as it relates to Mrs Fish's understanding of Centre policies. In relation to the four-hour Lady Gowrie course, the following exchange took place:17
And in respect of Centre policy:18
Specifically in relation to the thawing of food, the following exchange took place:19
In response to a question from the Commission, Mrs Laing had this to say in relation to the thawing policy:20
Procedural Fairness There can be no doubt in my mind that Mrs Laing had every intention of following the principles of procedural fairness "to the letter" when she approached Mrs Fish on 28 November. It is also clear that these best intentions were overtaken by events as they occurred. Whilst it might be argued that Mrs Laing should have made some [verbal] attempt to prevent Mrs Fish from leaving, it would be bordering on presumptuous for someone not caught up in the emotion of the moment to make that call. It follows that I intend to apply these rules flexibly and attempt to determine what would have been a fair outcome had a proper investigation been carried out. Whilst not necessarily coming under the heading of procedural fairness, there are some other aspects of this case which I find both unusual and puzzling. It is surprising to me that despite a number of staff commenting to Mrs Laing about the chickens on the afternoon of 27 November, no-one actually raised it with Mrs Fish. No attempt was made to dispose of the chickens and no note was left stating that they were not to be cooked. It is also surprising that Mrs Williams, who knew that cold chickens were to be sourced from a retail outlet, apparently "allowed" Mrs Fish to commence cooking the condemned chickens without making some comment, despite the close proximity of their respective work stations. Finding This is a decision which has troubled me. Mrs Laing impressed as an effective and caring manager of the Centre and is clearly highly regarded by the staff. She is clearly aware of the principles of procedural fairness, and where practicable, followed them meticulously. Mrs Fish was an employee of relatively long standing. She was clearly subject to a "first and final warning" although there was no evidence of any previous disciplinary or counselling issues. Mrs Fish clearly did the wrong thing. Even by domestic standards, leaving chickens to thaw at room temperature for 23 hours is excessive. [Note: The Food Standards Code states that total exposure time should not exceed 15 hours.21] I have made it clear that it is entirely proper for the Centre to adopt, where appropriate, policies that impose a higher standard than that applying to the community generally. The real issue is whether or not such a policy is articulated clearly and consistently to the employees concerned. In the eyes of Mrs Fish clearly this was not the case. At no stage did she attempt to hide or cover up what she did. Her evidence that she had not received specific training on this aspect nor had she been given a clear policy document was not seriously tested. Certainly it can be argued that the "first and final warning" letter spelt the policy out. However on my assessment it is a document that outlines the "preferred way of doing things" rather than a policy that is so set in concrete to be inviolate. This can be contrasted with the "reheating of food policy" which is apparently quite specific. I have also pointed to the apparent conflict between the Bunny and Williams publication and the Lady Gowrie training course, together with the apparent inconsistent application of the policy concerning the cooking of frozen food. Having regard to all the evidence I am satisfied that Mrs Fish did not wilfully and knowingly breach a Centre policy. Certainly she made a mistake which in a worst case scenario may have had serious consequences. It was an action which could not be condoned and some response on the part of management was clearly warranted. However in the circumstances I consider what amounts to instant dismissal to be a disproportionate response. It is common ground between the parties that the relationship between Mrs Fish and the employer is a fractured one and that reinstatement is not a practicable option. In all the circumstances I propose to order modest compensation which includes a component which compensates for the absence of any notice. ORDER Pursuant to Section 31[1B] of the Act I hereby order that Chau Nominees Pty Ltd and Whitby Pty Ltd trading as Mother Goose Child Care Centre pay to Mrs Glenda Fish of 57 Sugarloaf Road, Risdon Vale 7016 the sum of one thousand eight hundred dollars [$1800], such payment to be made within 21 days of the date of this decision. Note: As this application was lodged prior to 1 January 2001, this order is made in accordance with Act as it then was.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit R3 |