T9406
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Municipal, Administrative, Clerical and Services Union and Migrant Resource Centre (Southern Tasmania) Inc.
Industrial dispute - alleged unfair termination of employment - no valid delegation of authority to terminate - no valid reason to summarily terminate - summary termination of employment harsh and unjust - reinstatement ordered REASONS FOR DECISION On 5 February 2001, the Australian Municipal, Administrative, Clerical and Services Union (ASU) 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 the Migrant Resource Centre (Southern Tasmania) Inc. (MRC) arising out of the alleged unfair termination of employment of Mrs Maureen Adamson. On 9 February 2001 the President convened a hearing before myself at "Lyndhurst", 448 Elizabeth Street, North Hobart, Tasmania to commence at 2.15pm on Friday 23 February 2001. Mr I Paterson of the ASU appeared for the applicant and Mr K Godfrey from Jobs Australia appeared for the employer. Following preliminary submissions the hearing was adjourned into private conference, with the Commission, in an effort to find a resolution to the dispute. This proved to be unsuccessful and the matter was adjourned until 26 March. Further hearings took place on 27 March, 9 April and concluded on 10 April. A number of documents were subsequently submitted as supplementary submissions which I allowed to form part of the record. Evidence During the hearing evidence was taken from the following witnesses:
In addition approximately 80 documents were submitted into evidence and the Commission conducted on site inspections. Sequence of Events [Summary] The catalyst for the application was the summary termination of Mrs Adamson on 5 February 2001. In his closing submission Mr Godfrey submitted that events prior to December 2000 were not relevant to the circumstances of the termination in February 2001. However this does not sit entirely comfortably with Mr Godfrey's later contention that "... the broad approach for approval [to terminate] ..."1 was determined at a management committee meeting in November 2000. I have reached the conclusion that whilst the fairness or otherwise of the termination must ultimately turn on the circumstances of the actual termination and the events immediately preceding this, it would be folly to view these events in a clinical vacuum. To provide context, I have therefore prepared the following short form summary of relevant events in the 18 months or so preceding the termination. Where necessary, a more extensive analysis of the most critical issues is provided later in the decision. Mrs Adamson commenced employment with the MRC in October 1997 in the position of Office Manager. From September 1999 through to December 1999 Mrs Adamson was Acting Executive Officer pending the selection of a new Executive Officer. (Note: the title of this position subsequently changed to General Manager). Mrs Adamson was an applicant for this position. A few days after the interview Mrs Adamson heard through "gossip" that she was not successful. She raised her concern as to this breach of confidentiality with the board. Mrs Adamson said in her evidence that her concerns related to process rather than the outcome. Further, she believed that the successful candidate, Mrs Provan "was the best candidate at the time".2 Mrs Adamson said that she was told by members of the board that her contribution to the MRC was valued and that she was encouraged not to resign. This was not contested. Immediately prior to the commencement of the new General Manager, Mrs Adamson had preliminary discussions with the chair of the board, Mr Abdullah, concerning a revised position description, title and salary review. These issues were referred to Mrs Provan for attention on her commencement in January 2000. Mrs Adamson and Mrs Provan worked together for the next 14 weeks. This period appeared to be largely unremarkable although there was some evidence of growing tensions between the two, particularly in relation to an apparent lack of clarity as to delineation of respective responsibilities. Some discussions took place in regard to position description but the matter was certainly not finalised. On 25 May 2000 Mrs Adamson went on sick leave for a week and a half. She returned to work briefly but in early June was hospitalised for major spinal surgery, a consequence of a car accident several years earlier. It was clear that an extended period of convalescence would be necessary following the surgery. As it turned out Mrs Adamson did not return to work [save for a few hours on 16 November] until the day of her dismissal in February 2001. A number of events occurred during July whilst Mrs Adamson was on sick leave. Firstly, on 18 July the board adopted a new position description and title for Mrs Adamson's position. It is common ground that Mrs Adamson had not seen the new position description prior to its presentation to the board. In response to a question from the Commission, Mrs Provan said she considered the new position description as being "neutral to her original position but I would probably accept that Maureen Adamson would see it as a downgrading ..." Following representations from the ASU3, the MRC agreed to revert to the status quo.4 Secondly, the car park previously occupied by Mrs Adamson was reallocated to another staff member. Mrs Adamson first heard of this decision when a staff member telephoned her with an invitation to participate in an arrangement whereby she would pay for an adjoining car park. Mrs Adamson said that she had been allocated a car park since commencement, a driver's licence was an advertised prerequisite for her position, and that she was required to use her vehicle for work purposes. Aside from that, her restricted mobility following surgery was an additional consideration. Mrs Provan maintained that car parking spots were allocated on a hierarchical [work] needs basis and that Mrs Adamson's position description did not require her to use a vehicle for work purposes. Thirdly, Mrs Adamson's work station was relocated. Prior to going on sick leave Mrs Adamson shared an office with another staff member. During a visit to the office to pay her membership fee, Mrs Adamson discovered that her work station had been relocated to a public area immediately behind the reception. Mrs Adamson was clearly upset by these events and telephoned Mrs Provan to express her concern. Mrs Provan said she was reluctant to discuss these issues whilst Mrs Adamson was on sick leave, but would do so on her return. Mrs Provan also requested that Mrs Adamson in future make an appointment with her and not to come into the office in her absence. Mrs Adamson wrote to the board re the work station and carpark issues on 14 August5. It is fair to say that these two issues remained very much alive over the following months. On 7 August a significant incident occurred when Mrs Adamson visited the office to present a sick certificate. She had telephoned to advise of her intentions earlier in the day but the General Manager was absent when Mrs Adamson arrived. Shortly thereafter Mrs Provan arrived and confronted Mrs Adamson who was in the tea room with other staff members. Mrs Provan said she was "... firm in my questioning of her ..."6 Mrs Adamson said:7
Ms Orr said that Mrs Adamson was distressed by the event and that "I myself felt quite distressed that I had to be in the middle of the whole situation".8 Mrs Adamson wrote to the board chair concerning this incident.9 It is not clear whether the board considered this complaint but certainly no formal response was forthcoming. There can, however, be little doubt that this incident exacerbated an already deteriorating relationship between Mrs Adamson and Mrs Provan. Over the next two months there was some limited dialogue between Mrs Adamson's rehabilitation coordinator, Celia Leonard, and Mrs Provan concerning a graduated return to work program. These negotiations were unsuccessful and on 16 October CRS Australia advised "a return to work at the Migrant Resource Centre is currently not appropriate".10 From the MRC point of view it would appear that Mrs Adamson's request for board involvement in the return to work plan negotiations was a major sticking point. In October Mrs Adamson lodged a complaint with the Anti-Discrimination Tribunal.11 Mrs Provan agreed that she had informed the staff of this complaint to "... dispel any gossip or hearsay ..."12 Mrs Adamson said she was "most distressed"13 by this action. On 9 November Ms Leonard sent an e-mail to Mrs Provan advising that "Maureen's GP has certified her fit to return to work with reduced hours from the 15th November 2000".14 Apparently Mrs Provan was attending a conference in Perth at this time. Mrs Adamson said she also advised Mr Abdullah of the doctor's recommendation. Mrs Adamson returned to work on 16 November and submitted a medical report from Dr Begbie dated 15 November. This report said in part:15
The report also recommended the return of her original work space as "an integral part of her successful rehabilitation ...". The following is Mrs Adamson's account of what occurred when she returned to work:16
Mrs Provan in her evidence expressed considerable surprise that Mrs Adamson had returned to work.17 It is clear that Mrs Adamson was medically cleared to return to work on 16 November. However given that the previous advice via Ms Leonard had been less than precise, I am surprised that Mrs Adamson did not make a more determined effort to contact Mrs Provan prior to her return to work. Mrs Adamson left the workplace on the advice of the ASU. Later that day Mr Abdullah sent an e-mail to the ASU stating:18
This position was subsequently confirmed by the board and conveyed in the following terms:19
On 8 December a meeting took place to discuss the carpark and work station issues. In correspondence of the same date the ASU confirmed its position in the following terms:20
On 21 December the MRC responded as follows:21
By letter dated 8 January 200122 the MRC proposed that the cost of the assessment be borne by Mrs Adamson. This was rejected by the ASU in correspondence dated 9 January.23 A special board meeting took place on 12 December. It would appear that the sole purpose of this meeting was to consider a report prepared by the General Manager.24 This report raised a number of issues of concern relating to the operation of the board. It also raised a number of issues directly related to and critical of Mrs Adamson. Mrs Provan described the report as a "public document".25 And later:26
A number of staff "who wanted to provide some support for the manager"27 also attended this board meeting. The resolution passed by the board was effectively a vote of confidence in the manager.28 Mrs Adamson was clearly incensed by certain aspects of this board meeting and wrote to Mr Abdullah advising that legal action for defamation would be instituted.29 By correspondence dated 10 January the MRC directed Mrs Adamson to return to work on 15 January.30 Mrs Adamson stated that she did not receive this letter and only became aware of the requirement through a casual conversation with Mr Paterson on the afternoon of Friday 12 January. Mrs Adamson said:31
Mrs Adamson said that the shock of hearing of this requirement aggravated the pain associated with her injury. She visited her doctor and obtained a medical certificate for the period 13 to 27 January. Mrs Adamson travelled to Queensland on 15 January for a planned 3-week visit. Arrangements for this trip had been made in August but it was common ground that no leave application had been submitted. Mrs Adamson said that her union had advised her that this would be okay as she was suspended on full pay pending a workplace assessment.32 Circumstances Leading to Dismissal On 24 January the MRC wrote to Mrs Adamson in the following terms:33
The ASU was copied in on this correspondence. Mrs Adamson was still in Queensland and the ASU responded advising that she would be unable to return until 5 February.34 The MRC responded the same day rejecting the terms of the ASU letter.35 Later that same day the Anti-Discrimination Commission issued an interim order constraining the MRC from doing any act to:36
By facsimile of same date the MRC accepted the Interim Order but noted that the absence during the week commencing 29 January was "unauthorised".37 On 5 February Mrs Adamson reported to the MRC office at approximately 9.25am. She was accompanied by Mr Paterson. Mrs Adamson's recollection of this meeting is contained at pages 17 to 19 of the transcript and is too lengthy to reproduce. The essential elements can be summarised as follows:
Mrs Provan's recollection of the meeting was similar to that of Mrs Adamson. Points of difference or emphasis can be summarised as follows.
In response to a question as to how she understood the letter of 24 January, Mrs Adamson said:38
In response to a question from the Commission, Mrs Adamson said she was prepared to sit at the new work station and understood that that would happen. Her main concern was to find out about the reintegration program.39 Mrs Adamson and Mr Paterson then went to the ASU office. Shortly after their arrival [9.54am] a facsimile letter addressed to Mrs Adamson arrived expressed in the following terms:40
The employer contends that Mrs Adamson was guilty of misconduct by disobeying a lawful instruction. I must say however that the evidence as to whether this was the real reason is equivocal as shown by the following exchange between Mr Godfrey and Mrs Provan:41
Mr Paterson submitted that there were no grounds for summary dismissal:42
Did Mrs Provan Have the Authority to Terminate? Mrs Provan stated that she did not have the power to hire and fire unless it was specifically delegated by the Board. This is consistent with Mrs Adamson's letter of appointment which states:43
The question therefore is, was the authority to summarily terminate Mrs Adamson specifically delegated to Mrs Provan by the Committee of Management? Nothing was put forward which suggested that either of the board meetings in December 2000 or January 2001 resolved to provide such delegation. Mr Godfrey said that "the broad approach for approval was done at a full management committee meeting in November."44. Sielito said that "we'd already given authority for this to take place at a full board meeting."45. The evidence of Mrs Blomberg was that she could not recollect the board ever delegating authority to Mrs Provan to terminate the employment of Mrs Adamson.46 It transpires that the board meeting that Mr Godfrey and Sielito were referring to was that which was held on 21 November 2000. Resolution 00/93 of that meeting reads as follows:47
Unanimous" In relation to this resolution Mr Paterson said:48
I accept the submission of Mr Paterson. This resolution does no more than say that the board will continue to take advice from a particular source. It is certainly not a specific delegation to "hire and fire" and indeed it does not even state that such advice would necessarily be accepted. It is important to note that the resolution is drafted in the context of the advice being to the board, rather than specifically to Mrs Provan. That this was not a specific delegation tends to be supported by subsequent events. When asked whether she took any action to ensure she had the authority of the board, Mrs Provan said:49
This action resulted in a letter to Mrs Provan from Mr Abdullah expressed in the following terms:50
Mrs Provan went on to say that, of the 10 voting members, only seven were approached. Mrs Provan said that she needed a majority and she did not consider it necessary to approach all members once this was achieved.51 Later Mrs Provan said:52
It is common ground that the decision to terminate Mrs Adamson was not ratified at the February board meeting. In this context Mr Paterson referred to the decision of Evans J in The Queen v Watling; Ex Parte Northern Residential Support Group Incorporated.53 In this matter Evans J said:54
Retrospective ratification is not an issue in this case. It follows therefore that for Mrs Provan to be authorised to terminate Mrs Adamson, there must have been a valid delegation of power in the first place. In my view there was no such valid delegation. It is not unusual in meeting procedure to deal with matters "out of session" and to record the decision as a resolution in the minute book. In this case there was no meeting, the views of known opponents were specifically excluded from the process, the "decision" has not been minuted and there has been no ratification by a subsequent board meeting. The perception that one or more members of the board may have constituted a security risk is immaterial. They were presumably properly elected or appointed board members and they were entitled to have proper knowledge of what was contemplated and to express their view. For these reasons I conclude that there was not a valid delegation of authority to terminate the employment of Mrs Adamson. There is a further related issue which might more comfortably come under the heading of procedural fairness. However, as it is a direct consequence of the exclusion of the above board members, I will deal with it here. The MRC concedes that some of the decisions taken were driven by a fear that an Interim Order from the Anti-Discrimination Commission [ADC] may have precluded them from taking actions they wished to pursue. The following exchange between Mr Godfrey and Mrs Provan illustrates this point:55
In his closing submissions Mr Godfrey had this to say:56
Whilst the existence of the Anti-Discrimination legislation is a valid explanation for some of the employer's actions in this case, it must be acknowledged that it is the will of Parliament that the ADC be given power to issue interim orders. I would observe in passing that actions taken by an employer to circumvent these powers will in no way render an action, which is otherwise unfair, as being less unfair, or indeed, fair. Was There a Valid Reason For Termination? The position of the MRC is well summed up in the following statement from Mr Godfrey:57
By contrast, Mr Paterson said:58
Mr Godfrey referred to events prior to December 2000 as "useful background information",59 but not relevant to the actual termination in February 2001. I accept that this application must turn on the question of whether the events of February 2001 constitute serious misconduct as prescribed in Clause 3 of the Community Services Award. The events in question are:
Serious misconduct brings with it an onerous test. It is well established that behaviour which constitutes serious misconduct must be of such nature so as to strike at the heart of the employment contract. I readily accept that unauthorised absence would in many circumstances constitute serious misconduct.. However every case must be looked at on its merits and it would be quite wrong to look at any single act without regard to the circumstances leading up to it or indeed the environment of the day. In the instant case the events of the previous 15 months simply cannot be washed away as if they did not happen. Indeed these events coloured in a very tangible way the relationship between Mrs Adamson and Mrs Provan, Mrs Adamson and the board and Mrs Provan and the board. The events of February could fall into one of three categories:
Mr Godfrey's view of the background events was made abundantly clear in the following passage:60
I do not propose to review the evidence of these earlier events in any great detail. A number of the issues will presumably be the subject of an investigation by the ADC. I do however wish to make a number of observations. The uncontested evidence is that Mrs Adamson was asked by members of the board not to resign when she was the unsuccessful candidate for the General Manager position. I can only conclude that this meant that the board had no significant difficulties with her performance prior to December 1999. It is to be expected that the advent of a General Manager recruited from outside operating in close proximity with an unsuccessful candidate would create some friction and tension, at least initially. This of course is not an unusual occurrence and in my experience these initial difficulties are more often than not worked through to a constructive relationship. I must say I was initially troubled by Mrs Adamson's apparent predilection towards making direct representations to the board or the chair rather than through the General Manager. This is at odds with a normal corporate management structure and I would certainly understand if it was a source of annoyance and frustration for Mrs Provan, which I suspect it was. The following exchange between the Commission and Mrs Provan throws some light on this issue:61
Thus it is clear that the MRC actively encouraged staff to make direct representations to the board. I suspect the attendance of a number of staff at the special board meeting on 12 December is an example of this policy in action. Given this policy, it would be wrong for me to be critical of Mrs Adamson's actions. I do accept that this made the management role of Mrs Provan more difficult, but this is a direct consequence of a policy freely adopted by the board. There was clearly three major issues which led to a rapid deterioration in the working relationship. They were:
On the available evidence I am satisfied that these decisions were made without any consultation with Mrs Adamson and at a time when Mrs Adamson was absent on sick leave recuperating from major spinal surgery. It is also apparent that Mrs Adamson learnt of these decisions almost by accident, and certainly not through direct communication from the General Manager. All of the above issues would arguably fall within the province of management prerogative and as such not something that this Commission would lightly interfere with. I must however observe that to take these decisions in such a unilateral and non consultative manner was both unnecessary and unreasonable. The incident on 7 August was also unnecessary and regrettable. I do accept that in the normal course of events, Mrs Adamson's apparent insistence on having a member of the board involved in the return to work plan negotiations, to be unreasonable. Again this was no doubt an indirect outcome of the policy regarding staff representations to the board. I find it surprising that Mrs Provan considered it necessary to discuss Mrs Adamson's ADC complaint with the staff. The decision, apparently taken by Mr Abdullah rather than the board, to require Mrs Adamson to pay for the workplace assessment is in my experience unheard of. There was arguably no compulsion on the MRC to undertake the assessment. The employer did, in my view, agree to undertake the assessment and that is to their credit. It may well have been that the cost of the assessment was greater than originally anticipated. If that was the case the appropriate response would have been to consult with Mrs Adamson and/or the ASU with the view of exploring alternatives. To require Mrs Adamson to pay for the assessment without explanation or consultation was, in my view, quite unreasonable and Mrs Adamson had every reason to feel aggrieved by this turn of events. The above snapshot of the preceding months should be taken into account when considering the events which led to the ultimate dismissal. I turn firstly to consider the "unauthorised" absence during the week commencing 29 January 2001. Mrs Adamson made arrangements in August 2000 to go to Queensland during January 2001. She was on sick leave at the time the bookings were made. It is common ground that she did not apply for leave for this period. Following the aborted return to work on 16 November Mr Abdullah sent an e-mail to the ASU which stated inter alia as follows:62
On 19 November Mr Abdullah wrote to Mrs Adamson in the following terms:63
Following the meeting on 8 December Mr Paterson wrote to the MRC confirming the ASU position. This letter said in part:64
In a response dated 21 December the MRC effectively rejected the car park proposal. In relation to the workplace assessment, the letter said:65
From the above exchange of correspondence, together with the 8 December meeting, Mrs Adamson could have reasonably concluded that she was on "special leave on full pay" at least until the workplace assessment was completed. I distinguish this status with that of "suspension", with an attendant capacity of the employer to require a return to work, effectively "at will" and without reason. Without any prior warning Mrs Adamson learnt, almost by accident, on Friday 12 January, that she was required to report for work on the following Monday 15 January. According to Mrs Provan this decision was taken by the board on 19 December. She also agreed that there was no reason why Mrs Adamson could not have been advised immediately thereafter that she was expected to return to work on 15 January. There was no explanation provided as to the extraordinarily short notice that was subsequently given. This is particularly surprising given that the MRC had complained [with some justification] as to the lack of notice on Mrs Adamson's part when she returned to work on 16 November. In all the circumstances I consider that the requirement to return to work on 15 January to be quite unreasonable. Mrs Adamson was due to travel to Queensland on 15 January. It appears that Mrs Adamson sought advice from the ASU as to ability to leave the State. She also asked the ASU to advise the MRC of her circumstances, albeit in less than precise terms.66 In an ideal world it would have been far preferable had Mrs Adamson made direct contact with MRC and advised of her intentions. Whether that could or would have been accommodated is another issue. I do however accept that the employment status of Mrs Adamson immediately prior [special leave on full pay] was such that an application for annual leave would not have been necessary. I also accept that the environment at the time was less than ideal. In all the circumstances I conclude that the failure of Mrs Adamson to seek approval from the MRC to travel interstate was at least understandable. The requirement to attend for work on Monday 29 January was effectively conveyed to Mrs Adamson on the last working day prior to the long weekend. This resulted in a flurry of correspondence between the ASU, the MRC and the ADC. Prior to the end of the working day the ADC issued an Interim Order covering the period 25 January through 5 February 2001.67 The MRC acknowledged this development in the following terms.68
I accept that MRC did not approve this absence and are therefore entitled to consider it to be "unauthorised", notwithstanding the ADC Order. This however does not inevitably lead to the conclusion that the absence constituted "serious misconduct". I accept that the omission of Mrs Adamson was probably misguided and at worst, conceivably inappropriate. In light of the background circumstances however I conclude that this absence fell a long way short of constituting serious misconduct. I turn now to consider the second leg of the "serious misconduct" question. In Mr Godfrey's words:69
The nub of this question essentially revolves around the expectation on Mrs Adamson's part that there would be a meeting to discuss the "reintegration program" and Mrs Provan's refusal to have a meeting at that time and without representation. The letter from the MRC dated 24 January states in part:70
It is of significance that a copy of the letter was sent to the ASU. Given the "hands on" role the union had played in virtually every aspect of this matter, it should not have come as a surprise to Mrs Provan that Mr Paterson accompanied Mrs Adamson on her return to work. Secondly, the letter clearly states that "... your manager will meet with you, on your return, regarding a reintegration program" [my emphasis]. In these circumstances it was quite reasonable for Mrs Adamson to anticipate that a meeting to discuss the reintegration program would happen first up. I also accept that in the absence of a pre-arranged meeting, it was quite open for Mrs Provan to wish to defer any meeting until her adviser could be present. Both positions were equally valid. Unfortunately Mrs Provan did not explain her position other than to refuse a meeting. According to Mrs Adamson she made it clear that her wish was to commence work. She did not impose any pre-conditions other than a desire to discuss the reintegration program in the presence of her representative. I have no doubt that the atmosphere was tense and Mr Paterson presumably decided that the best course of action was to take Mrs Adamson back to his office for a short period to consider the position. There can be no suggestion that Mrs Provan either agreed to this or even condoned it. The evidence was that she acknowledged this with a nod of the head. By the same token Mrs Provan certainly did not indicate that such action would lead to termination. Within a few minutes of arriving back at the ASU office the letter of termination was received.71 In closing submissions Mr Godfrey said that the MRC was not challenging Mrs Adamson's right to consult with union but that should have occurred during a recognised work break. Mr Paterson referred to a decision of Westwood P.72 This case involved an employee who absented himself from the workplace following a heated discussion for the purpose of taking advice from the Workplace Standards Authority. After reviewing the evidence the President concluded:73
Whilst not on "all fours" with the instant case, there are similarities. As I have said earlier, a single act cannot be looked at in isolation of all the events that surround it. Having regard to all the circumstances I am unable to conclude that the actions of Mrs Adamson on 5 February were of such moment as to strike at the heart of the employment contract, and thus constitute serious misconduct. Findings For the reasons outlined above I find as follows: 1. Mrs Provan did not have valid delegation of authority to terminate Mrs Adamson on 5 February 2001. 2. The MRC did not have a valid reason to summarily terminate Mrs Adamson on 5 February 2001. In these circumstances it is unnecessary to consider the question of procedural fairness. 3. The summary termination of Mrs Adamson's contract of employment was harsh and unjust. Remedy The primary remedy under S.31 is of course reinstatement or re-employment. It is only where that is considered to be impracticable, that compensation should be contemplated. Mr Paterson argued strongly that the applicant should be reinstated on full pay but that she not be required to attend for work pending resolution of workplace issues. Mr Godfrey contended that reinstatement in any capacity "is both impracticable and we would say undesireable". And further:74
Mr Paterson submitted that "no reliance or weight should be placed to the detriment of the employee on the legitimate exercise of rights". He made the point that the MRC Grievance Procedure75 clearly acknowledges recourse to external bodies. There is force in Mr Paterson's submission. It would be quite wrong to conclude that the reference of a complaint to an external agency, whether it be the Industrial Commission, the Anti-Discrimination Commission or indeed the Civil Courts would in itself lead to an irreparable breakdown in the employment relationship. The real issue is the relationship itself, and most importantly, whether any fractures are capable of healing. On this question the following exchange between Mr Godfrey and Mrs Provan is of interest:76
I would observe that Mrs Provan's unprompted response was not entirely negative on the possibility of recovering the relationship. I place a greater weight on this than I do to her response to the leading question that followed. I also note that throughout January 2001 the MRC repeatedly indicated that Mrs Adamson was required at work. For example, the letter from Mr Abdullah dated 8 January concludes:77
For Mr Godfrey's submission to be accepted, logically I must conclude that the events of 5 February alone were so damaging, as to render the employment relationship as irretrievable. I am unable to conclude that that is the case. I propose to order reinstatement, albeit with some attendant observations. Firstly, I accept the submission of Mr Godfrey concerning a reinstatement without a requirement to attend for work, pending a resolution of certain workplace issues. The reinstatement I propose will be without any pre-conditions. I fully accept that the relationship between Mrs Adamson and Mrs Provan has been strained and if the parties maintain the respective mind sets of earlier this year, there is no chance that the relationship can be successfully re-established. For Mrs Adamson's part, it will require an acceptance that Mrs Provan is the General Manager and a cessation of the practice of going directly to the board, other than in accordance with the Grievance Procedure. I say this irrespective of the board policy on this question, which I consider to be inconsistent with sensible management practice. For the MRC management, it will mean that existing and future issues should be considered on their merits in a consultative manner, rather than the exercise of unilateral "management prerogative". This should not be interpreted as meaning that management can never make a decision, indeed to the contrary. I should add that I consider the unfairness associated with this dismissal to be at the upper end of the spectrum. Had I been considering the question of compensation it would have been the maximum allowable under the Act, that is, six months' salary. I am not however satisfied that reinstatement is impracticable. ORDER Pursuant to Section 31 of the Act I hereby order: Part A 1. Mrs M Adamson be reinstated by the Migrant Resource Centre (Southern Tasmania) Inc. to the position she occupied prior to 5 February 2001, or to a position at least equivalent in terms of salary and status, such reinstatement to be without loss of accrued entitlements and continuity. 2. The reinstatement is to be effective from 5 February 2001. 3. Mrs Adamson is to resume her duties at a date mutually agreed but not later than Tuesday 12 June 2001. 4. The applicant and the employer are to confer prior to 8 June 2001 for the purpose of settling details associated with this order. It is open for either party to be represented by an agent at this conference. It shall be the responsibility of the applicant to initiate this conference. Part B Nothing in this order shall be construed as preventing the parties from agreeing on an alternative solution to this dispute provided that such agreement is reached prior to 12 June 2001. In the event that an alternative solution is agreed, it shall be the responsibility of the applicant to advise the Commission accordingly not later than 12 June 2001.
Tim Abey Appearances: Date and Place of Hearing: 1 Transcript p. 238 |