T9448
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Paula Sutherland and Classic Video Pty Ltd, trading as Video City
Industrial dispute - termination of employment - severance pay - Order REASONS FOR DECISION This was an application for a dispute hearing made under the Industrial Relations Act 1984 (the Act), Section 29(1A)(b), and it concerned severance pay in connection with the termination of employment of Miss Paula May Sutherland by Classic Video Pty Ltd, trading as Video City (the Company). Miss Sutherland, who made the application and had been employed by the Company as a library attendant, was represented at the hearing by the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the Union). The award applying to Miss Sutherland's employment was the Miscellaneous Workers Award (the award). The Union claimed that Miss Sutherland's employment had been unfairly terminated and sought a redundancy payment made up of four weeks' pay for lack of notice, plus three weeks' pay for each year of service. Miss Sutherland commenced employment with the Company as a casual employee in late 1995, and her employment was terminated on 7 March 2001. Miss Sutherland's status as a part-time employee was confirmed as from March 1997 in a decision by the then Commissioner A W Pearce,1 delivered on 19 December 2000. That matter was also a dispute over the alleged unfair termination of Miss Sutherland's employment by the Company. Commissioner Pearce ordered that Miss Sutherland be reinstated in her employment. Because of certain previous dealings between the Union and the Company in August 1999, the Company declined to take part in conciliation discussions and the instant hearing proceeded forthwith. In evidence, Miss Sutherland said that on Wednesday, 7 March 2001, whilst working in the Company's Moonah store, she had been spoken to by Mrs Teresa Clark, an acting assistant manager. Mrs Clark told Miss Sutherland that, consistent with a memorandum that had been circulated around the Company at that time, the Company had been "letting people go"2, and Miss Sutherland was being made redundant with one week's pay. In answer to a number of questions from the Union, Miss Sutherland, as a witness, said that the Company had not consulted her beforehand, had not made efforts to find alternative solutions or employment for her and had not explained the criteria used in her selection for redundancy. The Union submitted that it was unjust and unfair for the Company to terminate Miss Sutherland's employment on the grounds of redundancy and pay her only one week's wages. The Union said there was no recognition of Miss Sutherland's long-term employment, six years, nor was there any notice payment. The Union quoted a number of previous decisions of the Commission in redundancy matters which set the precedents to be applied in this case. In particular, the Union relied on a decision of the previous President of the Commission, Mr F D Westwood, in the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch and Another v Fosseys (Australia) Pty Ltd.3 These decisions in one way or another, the Union said, endorsed all the necessary steps an employer should take in redundancy situations, but they were not applied by the Company in this case. Included in this was the provision of time off work with pay for an employee facing redundancy to attend job interviews, which opportunity was not given to Miss Sutherland, the Union claimed. The Union submitted that, because of the complete lack of effort by the Company in seeking to alleviate the effect of the redundancy, which was unfair and unjust, the remedy sought by the Union in this case was warranted. In reply, the Company relied on the fact that the employee was a part-timer and said that all the precedents quoted by the Union were not apposite because they related to full-time employees. The Company also said that the decision of Commissioner Pearce previously quoted did not address continuity of service, a matter which should be considered in this case. The Company said it considered that as Miss Sutherland, who was a university student, had other part-time jobs, it should not be construed that, " ... she was going to incur any significant disadvantage."4 This was particularly so, the Company said, because the award was silent on the issue of redundancy. The Company said it had addressed the issue of the employment contract (in the award) and, as a result, the giving of one week's notice met its obligations. In response, amongst other things, the Union pointed out that Commissioner Pearce had ordered that Miss Sutherland be reinstated to the position that she occupied immediately prior to her employment termination without any loss of entitlements, which included continuity. Hence, the Union said, she was a continuous employee for six years with no break in service as a result of the Order. The Union said that references to Miss Sutherland's other employment were irrelevant; she was an employee of the Company and she had been made redundant. As to the Company's reference to the lack of a redundancy provision in the award, the Union pointed out that the Commission had determined that redundancies should be dealt with on a case-by-case basis and the Act, Section 29(1)(b), specifically provided for that to occur. Findings I accept the evidence of the witness, Paula May Sutherland (which was not disputed) and the submissions of the Union. In particular, I do not accept the Company's submission that Miss Sutherland was somehow excluded from redundancy consideration because she was a part-time employee. The key criterion is whether or not she was a long-term employee (whether part-time or full-time), and I am satisfied she was. In view of the Company's failure to carry out any of the measures specified in previous decisions of the Commission concerning redundancy, based upon the original Full Bench decision, Tasmanian Trades and Labor Council - application to vary the Retail Trades Award,5 I consider the Union's claim should be met in full and I will so order. For the purposes of calculations, I have assessed Miss Sutherland's period of employment at four years (as a part-time employee) from March 1997, as found by Commissioner Pearce (at page 9 of his Decision) and her weekly pay at $69, based upon the hours per week and hourly rate specified in the application (5 hours @ $13.80 per hour). The one week's payment already made has not been included, being a requirement of the award in any case. Order In accordance with the power vested in me under Section 31(1) of the Act, in settlement of this dispute, I hereby order that within fourteen (14) days from the date of this decision, Classic Video Pty Ltd, trading as Video City, pay to Paula May Sutherland of 28A Giblin Street, Lenah Valley, Tasmania 7008, the sum of one thousand, one hundred and four dollars ($1,104) being a severance payment on the termination of her employment.
P A Imlach Appearances: Date and place of hearing: 1 T9012 of 2000 |