T10088
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australasian Meat Industry Employees Union, Tasmanian Branch and Blue Ribbon Meat Products Pty Ltd (in liquidation)
Industrial dispute - severance pay and payment in lieu of notice - whether still employed on particular date - whether notice period applied REASONS FOR DECISION [1] On 12 March 2002, the Australasian Meat Industry Employees Union, Tasmanian Branch applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 (the Act) for a hearing before a Commissioner in respect of an industrial dispute with Deloitte Touche Tohmatsu, liquidators of Blue Ribbon Meat Products Pty Ltd, arising out of severance pay and payment in lieu of notice for Mr Alex Coates. [2] On 14 March 2002, the President convened a hearing at the Supreme Court, Cameron Street, Launceston, Tasmania, before myself, to commence on Monday 29 March at 2.30 pm. [3] At the hearing, the applicant union was represented by Mr Grant Courtney. Blue Ribbon Meat Products Pty Ltd (in liquidation) was represented by Mr Michael Flynn. During the proceedings Mr Flynn indicated that the correct title of the respondent, for the purpose of any Orders which might arise out of a decision was Blue Ribbon Meat Products Pty Ltd (in liquidation). He said that the liquidators are not Deloitte Touche Tohmatsu, but individuals who work for Deloitte Touche Tohmatsu. As it happens, there are no Orders arising out of this decision. [4] The parties told the Commission that the question to be determined was whether or not Mr Alexander Coates was still an employee of Blue Ribbon Meat Products on 5 December 2001. It was agreed that the matter would be decided on documentary evidence and submissions, without calling witnesses. [5] The background to the dispute is that, following the corporate collapse of Blue Ribbon Meat Products on 5 December 2001, over four hundred employees were dismissed by the administrators. There was no money available to pay wages for the last week, outstanding entitlements or severance pay. Following those events, the Australasian Meat Industry Employees Union, Tasmanian Branch, applied to the President, pursuant to section 29 of the Act, for a hearing before a Commissioner in respect of an industrial dispute with Blue Ribbon Meat Products Ltd (under administration Deloitte Touche Tohmatsu) over severance pay and pay in lieu of notice [6] On 11 December 2001, Watling DP, issued an Order by Consent1, to the effect that all employees whose names appeared in Attachment 1 of the Order be paid a severance payment equivalent to two weeks ordinary pay for each completed year of service and one weeks ordinary pay in lieu of notice, no later than 5.00 pm on 24 December 2001. [7] Mr Alexander Bruce Coates had been employed by Blue Ribbon Meat Products Pty Ltd at their Smithton plant. The Blue Ribbon Meat Products Pty Ltd Enterprise Agreement covered his employment. The name of Mr Alexander Bruce Coates appears on Attachment 1, as an employee to be paid severance pay and notice as per the Order issued by Watling DP. The current dispute concerns the failure to pay Mr Coates any or all of the severance pay and notice ordered. [8] Mr Courtney, for the union, said that, to the best of his knowledge, all employees listed on the Attachment to the Order, excepting for Mr Coates, had been paid an amount through the General Employee Entitlements and Redundancy Scheme (GEER), which provides for the payment of up to five weeks pay in lieu of notice and up to eight weeks severance payment. This is an amount advanced by the Commonwealth Government. The administrators wrote a letter terminating the employment of the employees, dated 5 December 2001. In the letter the employees were asked, as a matter of urgency, to complete an application for the GEER scheme. Mr Coates completed the application form, but, to date, has received no payment through the scheme. [9] The reason Mr Coates has not been paid is because there is some dispute as to whether or not he was still an employee of the company at the relevant time, that is, on 5 December 2001. The Commission has been asked to determine that question. That is the relevant date because that was the date on which the mass terminations took effect. The Order issued by Watling DP included one week's pay in lieu of notice for those employees. [10] Mr Coates' situation, according to Mr Courtney, was that on either 4 or 5 December 2001, he had asked Mr Richard Leslie, who was in charge of the Smithton plant at the time, if he could take three months leave without pay. Mr Coates was aware, through the media, that the workforce was being sacked. Mr Leslie told Mr Coates that he was unable to do anything in the absence of Mr Erichsen, the Plant Manager. He was referred to Libby Ollington, who was in charge of administration at the Smithton site. Mr Coates was given a document headed "Termination Notice" which is a proforma document with blank spaces to be filled in with the employee's name, signature, signature of witness and the relevant dates. In Mr Coates' case, the document is dated 5 December 2001. It then goes on to say: "I, Alex Coates, hereby voluntarily terminate my employment with Blue Ribbon Meat Products Pty Ltd with effect of 30.11.01."2 [11] Mr Coates' signature at the bottom of the page is dated 30 November 2001, as is the signature of the witness. Mr Courtney said that Mr Coates signed the document but did not date it. It is apparent from an examination of the document that the name and dates have been filled in by a person other than Mr Coates. [12] Mr Courtney said that Mr Coates, in signing the termination notice, was giving a weeks notice from 30 November 2001. On the following week, it was anticipated that there would be no work until the Wednesday (5 December 2001), because of difficulties in sourcing livestock. He had worked on the Tuesday and the Friday of the previous week. There had only been two days' kill during that week. Mr Coates is still owed wages for those two days. [13] Mr Coates received an Employment Separation Certificate, signed by the employer, which stated that the final day that Mr Coates worked was 5 December 20013. [14] Mr Flynn, for the respondent, said that on 4 December 2001 Mr Coates went to the works and sought information regarding his future. He had obtained casual employment and employees who had, or potentially had, other employment had been asked to inform the company. The workers at the Smithton plant were not officially informed of their termination until 6 December, but would have been aware of it through media reports. [15] At the time Mr Coates spoke to people at the plant, the payroll for the previous week had not been completed, and it was decided, with the best intentions, to attempt to get Mr Coates' wages included in the previous weeks' payroll. However, the administrators took over and the payroll was frozen. Mr Coates did not actually work in the week which included 5 December 2001. [16] Mr Flynn said that there were a number of employees who had resigned the week before and who were still working out notice, and there were others who had been terminated or who had resigned and who were not serving out notice. [17] The administrators of the GEER scheme had asked a direct question, Mr Flynn said, which was, was Mr Coates working at the time of termination? The company's response was that he wasn't. The fact of the matter was that Mr Coates did not last work for the company on 5 December 2001. He had worked for two days during the previous week. [18] The reason for the separation certificate being dated 5 December 2001 was that a number of errors were made in an attempt to deal with the large number of employees in a very short time, and one common date was adopted. Similarly, the letter of termination was sent to all employees who were listed on the payroll at the time. This included some employees who had left the company within the last two or three weeks. [19] On the question of whether or not the termination notice signed by Mr Coates was dated or not, Mr Flynn said that his instructions were that the document was dated at the time that Mr Coates finished with the company. It was done as an opportunity for his wages to be included in the previous week's payroll. There was no expectation that Mr Coates would work for a further week after 30 November 2001. It had been the custom and practice of the company, on occasion, for employees to give notice and for the company to waive the notice period. FINDINGS [20] The termination notice signed by Mr Coates states that he voluntarily terminated his employment with effect from 30 November 2001. It does not specify whether that date is intended to be the last day of employment or the date from which notice to terminate employment commences. The document itself is dated 5 December 2001. It is not possible to give notice retrospectively. If the date on which the document was signed was 5 December 2001, which seems likely, then the giving of notice would be from that date, irrespective of the earlier date filled in below, unless it were confirmation of notice given at an earlier date. There was nothing before me to indicate that notice had been given any earlier than the date on which the document was signed. There was no certainty on the part of either party as to when the dates were filled in, or by whom. What is clear, however, is that the termination notice (or notice of termination) was completed no earlier than 4 December 2001, more likely on 5 December 2001. [21] Whether, in fact, it was Mr Coates' intention to resign is unclear. He went to the plant to request three months leave without pay, but events overtook him, and he was given the termination notice to complete, apparently backdated with the intention of including payment for work he had performed in the payroll for the previous week. It seems that the completion of the termination notice may simply have been a device to enable his wages to be paid by a particular time. [22] At approximately the same time (the termination notice is dated 5 December 2001 as is the letter of termination) Mr Coates received a letter from the Administrators advising that his employment had been terminated as a result of the current financial position of Blue Ribbon Meat Products Pty. Ltd. This letter was dated 5 December 2001. He was advised to complete another form in order to "accelerate" payment under the GEER scheme. [23] If there was no true resignation, that is, no intention on the part of Mr Coates to resign, and the form was signed for a different purpose altogether, then he was clearly still an employee of Blue Ribbon Meat Products on 5 December 2001. [24] If, however, the Termination Notice is accepted at face value, and he did in fact resign, he would still have been an employee of Blue Ribbon Meat Products Pty Ltd on 5 December 2001, for the following reasons: [25] Clause 2.1 Contract of Employment, of the Blue Ribbon Meat Products Pty Ltd Smithton Enterprise Agreement states at sub-clause (f)(i) Warnings, Suspension and Termination of Employment that:
[26] Nothing in this clause enables either party to waive the giving of the week's notice, except by either payment or forfeiture of one week's wages. It was not suggested by either party that this was the case, that is, there was no forfeiture of wages nor payment of wages in lieu of notice. [27] Mr Flynn said that it was the custom and practice of the employer, on occasion, to waive the requirement to serve out notice. Nothing was put to me to show the extent of this practice, or whether such an arrangement was agreed to between the parties in this case. The Blue Ribbon Meat Products Pty Ltd Smithton Enterprise Agreement is very specific in stating that the employment can only be terminated by the giving of notice, or by the payment or forfeiture of one week's wages (except in cases of serious misconduct or serious neglect of duty). [28] Once notice of termination of employment has been given, the termination of employment does not take place until the expiry of the notice period, unless wages in lieu of notice have been paid. This is the case, even where the employer relieves the employee from the burden of having to work through a period of notice. The employer has merely waived what would otherwise have been a continuing obligation on the employee to attend work. Such a circumstance, however, does not terminate the employment relationship, which remains in place until the notice period has expired. In the circumstances of this case, there was, in any event, no more work available due to the collapse of the company. It is possible, by consent, to withdraw notice; the giving of notice, of itself, cannot be seen as the termination of the employment relationship. [29] Mr Coates, in signing the document entitled Termination Notice, in effect gave notice of his intention to terminate the employment contract by the giving of one week's notice. In the absence of a payment in lieu of notice, or forfeiture of wages, it could be no other thing. If the relevant date was from 30 November 2001 his contract of employment remained in place until 7 December 2001. If the date was 4 or 5 December 2001 his contract of employment remained in place until 11 or 12 December 2001. Therefore, the earliest date on which his employment would have terminated was 7 December 2001. I have already found that the most likely date on which he handed in his notice was 5 December 2001. I think it probable that the date on which his employment was terminated was 12 December 2001. [30] In relation to the specific question that I have been asked to determine, I find that Mr Alexander Coates was still employed by Blue Ribbon Meat Products on 5 December 2001.
P C Shelley Appearances: Date and place of hearing: 1 Exhibit A1 T9948 of 2001 |