T9395
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Alison Jane Liddell and Stennar Investments Pty Ltd, trading as Y & B Home Improvements
Industrial dispute - redundancy - severance pay - roster - part-time employee - order REASONS FOR DECISION [1] This was an application for a dispute hearing made under Section 29(1A) of the Industrial Relations Act 1984 (the Act) by Alison Jane Liddell of Bridgenorth in Tasmania (the applicant). [2] The applicant was in dispute with Stennar Investments Pty Ltd, trading as Y & B Home Improvements of Waverley in Tasmania (the employer), over the termination of her employment due to redundancy. [3] The applicant claimed she had been unfairly dismissed from her employment because she had been given no notice of the termination of her employment, nor had any severance payment been made to her arising out of her redundancy. She sought one week's pay in lieu of notice, plus two weeks' pay for each year of service as a severance payment. [4] At the hearing, the applicant was represented by Ms Jennifer Dunn of the Launceston Community Legal Centre Inc and the employer was represented by Mr Andrew Flood of the Tasmanian Chamber of Commerce and Industry Limited (the Chamber). [5] By agreement this matter was heard concurrently with two other applications1 made against the employer under similar circumstances. [6] The work performed by the applicant was known as telemarketing, whereby the employees endeavoured to sell the employer's home improvement services over the telephone. The employees were paid an hourly rate for time worked, plus a small amount when a "lead" was obtained, plus a commission when a sale was successfully converted to contract form. [7] In evidence, the applicant said she commenced work with the employer in late September or early October 2000, as a casual employee. She said she had worked eight rostered hours per week and the roster was on a fortnightly basis. [8] On the evidence there were three separate shifts worked each day at the employer's premises, the first from 9am to 11am, the second from 4pm to 6pm, and the third from 6pm to 8pm. The employees were rostered to work one of those shifts, from Monday to Thursday inclusive, over a period of a fortnight or a month after which they started on one of the other shifts for the same period(s). [9] A representative of the employer told the employees whilst they were off work for the Christmas period, commencing on 14 December 2000, not to return to work because their part of the operation was being closed down and their employment was being terminated. [10] On the evidence, the employees generally did not work on public holidays and, when they were off work sick or absent for some other reason, they were not paid. The employees were paid $12 per hour. [11] Mr Mark James Willmot appeared as a witness for the employer. He was a business manager for Wacobi Australia Pty Ltd, which was a management company of the employer. [12] Mr Willmot said the applicant was employed as a casual employee. He was not aware that a roster of work existed. He said that the employees had the opportunity to accept or reject the hours of the roster (meaning there was no effective roster) whether for sick leave or whatever reason. He pointed out that the employer's pay sheets, which were produced as evidence (Exhibit F5A), demonstrated that the employees did not in practice follow any kind of roster as there were irregularities in the amounts of pay which indicated different hours worked as opposed to a roster of hours. [13] Mr Willmot also said the employees had all signed (Australian Taxation Office) employment declarations (Exhibit F3) which document them as casual employees. [14] The Chamber produced pay sheets ostensibly as evidence of the irregular hours worked by the employees. The Chamber claimed:
[15] The Chamber submitted that, were the Commission inclined to accede to the claim, the order for payment ought to be based on the average hours per week worked because the evidence before the Commission did not substantiate a regular eight hours per week. Findings [16] I accept that the applicant's employment was terminated effectively from 14 December 2000, hence her period of employment was approximately two and a half months. [17] In the absence of proper records from the employer, the Commission found it very difficult to accurately assess the hours and days worked by each of the employees in question for the periods of employment in each case. However, after the close of the hearing, one of the applicants submitted copies of nearly all of her time sheets which helped clarify the situation. I accept those records as authentic. In particular, the time sheets confirmed the employees did work to a regular roster, albeit punctuated by changes and absences. Such variations to the roster, in these cases, taking into consideration public holidays, sick leave, swapping of shifts, overtime, agreed absences, were not such as to thwart the regularity or consistency of the roster. On the evidence of the three employees, I accept there was a roster and they worked to that roster. [18] All of the foregoing leads me to conclude that these employees were not casuals, as designated by the employer and accepted by the employees, but, part-time employees. In the case of the applicant, this latter conclusion is reached in the absence of an award prescription which otherwise may have given a clear indication in the matter. [19] In the light of what I have concluded in relation to the employees working according to a roster, I reject the Chamber's submission that the eight hours per week at $12 per hour be reduced to an average. [20] I am satisfied that, being a part-time employee, the applicant's employment was terminated unfairly in that she was not given any notice of the termination of her employment. I will accordingly issue an order based upon payment for one week's notice at $12 per hour and eight hours work per week. [21] Considering the short period of the applicant's engagement no severance payment is due. 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 twenty-one (21) days from the date of this decision, Stennar Investments Pty Ltd, trading as Y & B Home Improvements, of 25 Tasman Highway, Waverley in Tasmania 7250, pay to Alison Jane Liddell of 28 Carey's Road, Bridgenorth in Tasmania 7277, the sum of ninety-six dollars only ($96.00).
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