T9803
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Emma Andrews and The Vanderwal Family Trust
Industrial dispute - alleged unfair termination of employment - neglect of duty -notice or payment in lieu - underpayment of wages - order issued REASONS FOR DECISION [1] On 18 September 2001, Emma Andrews (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with The Vanderwal Family Trust trading as Leo's Coffee Lounge arising out of the alleged unfair termination of her employment. [2] On 20 September 2001 the President convened a hearing before myself at "Lyndhurst", 448 Elizabeth Street, North Hobart to commence at 9.00am on Monday 24 September 2001. [3] When this matter came on for hearing Miss Emma Andrews appeared for herself, together with Mrs Heather Andrews. Mr Barry Vanderwal appeared for the employer. [4] 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 referred to the Commission for determination. [5] Whilst there was some conflict in the evidence, I formed the view that the areas of disagreement as to the facts were not pivotal to the outcome of the dispute. As a consequence I chose to proceed by allowing both parties put their position on the record rather than going to formal evidence. Mr Vanderwal declined to remain until the conclusion of the hearing. [6] The applicant commenced employment on 18 July 2001 on a three month trial period which, if successful, would have led to an apprenticeship. There can be little doubt that the employer quickly formed the view that the performance of Miss Andrews was less than the required standard. The employer had conveyed this to Miss Andrews on at least one occasion and possibly two. Whilst there was some disagreement as to the substance of the discussion, I am satisfied that the employer had embarked on a proper counselling program consistent with the nature of a probationary employee. [7] On Thursday 6 August Miss Andrews telephoned the employer prior to the commencement of her shift and advised that she was unwell and would not be in that day. The call was taken by a fellow staff member and passed on to the employer. Miss Andrews said that she then contacted her GP but was unable to secure an appointment until 1pm the following. day. Upon describing the symptoms Miss Andrews said the doctor advised her to continue with a course of previously prescribed antibiotics. [8] On Friday 7 August Miss Andrews said she visited her doctor at 1pm. The consultation took approximately 10 minutes following which she immediately proceeded to her place of employment, arriving there between 1.30pm and 2pm. Miss Andrews said she handed Mr Vanderwal a sickness certificate covering both the Thursday and the Friday. She said she was berated by Mr Vanderwal, in the presence of a customer, for not advising much earlier in the day that she would not be in attendance. [9] Mr Vanderwal said Miss Andrews did not arrive at the coffee lounge until after 3pm, that the sickness certificate was handed to Mr Vanderwal's wife, who in turn said that Miss Andrews was carrying shopping bags. When this was put to Miss Andrews, all three assertions were denied. [10] On Monday 9 August Miss Andrews worked her shift normally. At the conclusion of the shift Mr Vanderwal took her aside, paid her for the Monday, and according to Miss Andrews, said she "did not have the love for the job". Miss Andrews' employment terminated at that point. Finding (11) Whilst this matter initially proceeded on the basis of an alleged unfair dismissal, it became apparent that the real issues were the absence of notice or payment in lieu, and a relatively minor issue relating to an alleged underpayment of wages. (12) The relevant provision in the Restaurant Keepers Award is Clause 35 - Terms of Engagement, which reads as follows:
(13) Mr Vanderwal relied in the first instance on the paragraph above beginning with the word "Provided". His contention is that Miss Andrews was outside the three hour limit when she advised the employer of her non attendance on that day. (14) It followed, Mr Vanderwal argued, that Miss Andrews was guilty of "neglect of duty" as referred to in the third paragraph of the clause and, as a consequence, wages are only payable up to the time of dismissal. (15) The paragraph beginning with the word "Provided" is a most unusual provision. It certainly does state that an employee who advises of his or her inability to attend for work within three hours of normal commencement, shall not be summarily dismissed. It does not, in my view, necessarily follow that a transgression of the three hour limit, whether by a few minutes or a few hours, leads to a situation whereby there has been misconduct or neglect of duty of such a nature as to justify summary dismissal. (16) In this context Section 30[4][f] of the Act is relevant. Paraphrased, this section states that in the absence of persistent or unjustified absenteeism a temporary absence from work because of illness or injury is not a valid reason for termination. (17) It should not for one moment be suggested that Miss Andrews did not have an obligation to advise the employer of her inability to attend on the Friday much earlier than she did. My own view is that, notwithstanding the most unusual three hour provision in Clause 35, employees should, wherever possible, advise the employer of their inability to attend for duty either before the commencement of the shift, or very shortly thereafter. Indeed Miss Andrews did just this on the previous day. (18) Miss Andrews made a mistake, but it was not, in my view, of such a serious nature as to justify summary termination. This was her first job and she had only been employed a few weeks. There was no evidence that she had been warned about this before or indeed whether the requirements of the employer had been clearly made known. No payment was involved as Miss Andrews had not been employed for long enough to accrue a sick leave entitlement. (19) Had Miss Andrews been an employee of more senior years with an unsatisfactory track record on sick leave and/or time keeping matters, I may well have viewed this issue in a different light. (20) In all the circumstances I am quite satisfied that the minimum obligation on the employer was to either provide two days' notice of termination, or payment of two days' wages in lieu. (21) I turn now to the question of the alleged underpayment of wages. (22) Miss Andrews was employed at the rate of $6.06 per hour. The correct rate for a first year apprentice at the time was $6.48 per hour. I am advised that when this was brought to Mr Vanderwal's attention, the underpayment was remedied. From the beginning of the first pay period to commence on or after 1 August 2001, the rate increased to $6.67 per hour. From what I was told Miss Andrews should have been paid this rate for all work performed on or after Monday 6 August. The discrepancy involved can only amount to a few dollars and was probably quite inadvertent on the employer's part. (23) I therefore invite the employer to remedy the position, including for the two days' notice referred to above, as part of the full settlement of this dispute. If it becomes necessary for the Commission to issue an order on this latter aspect, I will consider it upon advice from the applicant. Order (24) Pursuant to Section 31 of the Industrial Relations Act 1984, I hereby order that The Vanderwal Family Trust trading as Leo's Coffee Lounge, Upper Level, 42 Eastlands Shopping Centre, Rosny Park, Tasmania 7018, pay to Miss Emma Andrews, 650 Dorans Road, Sandford, Tasmania 7020, a sum equivalent to the ordinary hours which would have been worked by Miss Andrews, but for her termination, during the next two rostered shifts. Such payment is to be made not later than 5pm on Wednesday 3 October 2001.
Tim Abey Appearances: Date and Place of Hearing: |