T10243
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Jason Myles Luck and Mornington Garden Supplies and Woodyard
Industrial dispute - alleged unfair termination of employment - found no valid reason for termination - termination procedurally unfair - reinstatement or re-employment impracticable - compensation ordered - order issued REASONS FOR DECISION (1) On 14 June 2002, Jason Myles Luck (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 Mornington Garden Supplies and Woodyard arising out of the alleged unfair termination of his employment and severance pay in respect of termination as a result of redundancy. (2) The matter was set down for hearing (conciliation conference) at "Lyndhurst", 448 Elizabeth Street, North Hobart at 9.30am Tuesday 16 July 2002. (3) Mr P Aiken appeared on behalf of the applicant. The employer was not represented. (4) Prior to the hearing correspondence from the employer was received in the Commission on 21 June 2002. The correspondence and attachment read as follows:
[5] In the circumstances I determined that the applicant should proceed to present his case. At the conclusion of the applicant's submissions, the hearing was adjourned until 19 August 2002. [6] The following correspondence, dated 25 July 2002, was sent to the employer:
[7] When the matter resumed on 19 August the employer was not represented and no explanation had been provided to the Commission concerning this non-attendance. In the circumstances I advised the applicant that the matter would be determined on the basis of the material before me. [8] This is a quite unsatisfactory situation. The applicant attended the hearing and presented a detailed personal statement,1 together with supporting submissions. The employer did not attend and, it follows, forfeited the opportunity to cross-examine witnesses and/or present submissions justifying the termination. In such circumstances and in the absence of any other issue/s that might call into question any aspect of Mr Luck's statement, the Commission is obliged to accept the factual veracity of the material presented on behalf of the applicant. [9] By contrast the employer was clearly advised by the Commission that "Correspondence, which cannot be tested under cross-examination, carries little or no weight". I am however satisfied that the employer was given every opportunity to present his case, and for his own reasons, chose not to. [10] Mornington Garden Supplies and Woodyard employed Mr Luck in August 1992. He was employed continuously until his termination on 27 May 2002. His main duties included delivery, machinery operation, and maintenance and customer service. His ordinary rate of pay was $512 for a 40-hour week. [11] Mr Luck's statement records the following for Monday 27 May:2
[12] It is not possible to determine with any certainty the reason/s for Mr Luck's termination. [13] The material before me traversed issues such as conflict between Mr Luck and the son of the Managing Director [Mr Seabrook Snr], the "attitude" of Mr Luck towards customers and fellow employees and alleged complaints from certain customers. [14] On 7 April there was an incident in which Mr Luck referred to the Managing Director in a derogatory manner. Mr Seabrook Snr was not present at the time although the comment was presumably passed on. Whilst there is a disagreement as to the words used, this incident, depending on context, may or may not have constituted serious misconduct. There is no evidence however, that the employer took up the issue with Mr Luck. In such circumstances it is not open to the employer to subsequently use this incident as a justification for the termination of Mr Luck's contract of employment. [15] Mr Luck stated that with the exception of two incidents [one five years and the other 18 months previous] no customer complaints had been brought to his attention by management. In addition, he had not been counselled or formally warned during his nearly 10 years of employment. In the absence of anything to the contrary, I must accept this as being the case. [16] There is little point in traversing the series of incidents, conversations and duty changes which apparently occurred during the last few months of Mr Luck's employment. On the material before me, I am unable to conclude which, if any, of these factors contributed to Mr Luck's subsequent termination. [17] Section 30[5] of the Act states:
[18] On the material before me the only reason given for the termination was the alleged inability of Mr Luck and the Managing Director's son to "get along well" and that Mr Luck "would not fit into their new criteria". There was no evidence of any efforts by the employer to address and manage this alleged conflict nor was there any detail provided to Mr Luck, or the Commission, as to "their new criteria". [19] I conclude that the employer has failed to satisfy the onus that falls to him to prove the existence of a valid reason for termination. [20] I turn now to the question of procedural fairness. [21] The fundamental tenet of the principle of natural justice is that a person must be made aware of the allegations against him and be given the opportunity to respond in defence of any such allegations. This is codified in s 30[7] of the Act, which states:
[22] In this particular case no allegations at all were put to Mr Luck. It is possible that the employer may have had issues relating to Mr Luck's employment, which caused Mr Seabrook Snr to move in the direction he did on 27 May. If that was the case, the issues were certainly not put to Mr Luck. Indeed in the undated correspondence to the Commission, Mr Seabrook concluded with the following comment:
[23] As no allegations were put to Mr Luck, the opportunity to respond does not arise. [24] The process of terminating Mr Luck's contract of employment also contravened s.30[8] of the Act which states:
[25] In addition to the absence of a valid reason, I find that the employer failed to observe procedural fairness. [26] It follows that I find the dismissal of Mr Luck was unfair. Remedy [27] Having regard for the tenor of Mr Luck's statement and the correspondence from the employer, I am satisfied that there is no realistic prospect of re-establishing a workable employment relationship. I conclude therefore, that reinstatement or re-employment is impracticable. [28] Section 30[11] of the Act states:
[29] Mr Luck was employed by Mornington Garden Supplies for nearly 10 years. On the available evidence, he had not been formally counselled or warned at any stage during that period. There were undertones relating to Mr Luck's alleged difficult relationship with the son of the Managing Director and also of a tendency for mood swings on Mr Luck's part. [30] Mr Luck's duties were altered in the latter part of his employment. There was nothing however, put forward which would allow me to conclude that Mr Luck was aware, or should have been aware, that his job was on the line unless things changed. [31] In the circumstances I find that Mr Luck had no reason to think that his employment would be anything other than ongoing on an indefinite basis. [32] Prima facie, this finding, coupled with no valid reason for termination and an absence of procedural fairness, would lead to an order for substantial compensation. Indeed, Mr Aiken argued for the statutory upper limit of six months' ordinary pay. [33] It is however, well established that some onus at least falls on the applicant to mitigate his loss by seeking alternative employment. Mr Luck certainly did this, and to his credit, he has subsequently secured employment. Little detail was provided as to this new position other than it involved "slightly less pay". [34] In determining compensation it is incumbent on the Commission to guard against windfall outcomes. Mr Luck's actual loss can be measured by the break of approximately five weeks between his termination and 1 July when he commenced his new position. Other factors to be taken into account include the "slightly lesser pay rate" in his new position and the general dislocation associated with finding and starting a new job when it is not your wish to do so. There may well also be a loss of certain accrued entitlements such as sick leave. [35] In all the circumstances I consider the appropriate level of compensation to be seven weeks' pay at the rate of $512 per week. ORDER Pursuant to s.31 of the Industrial Relations Act 1984, I hereby order that Mornington Garden Supplies and Woodyard, 122A Mornington Road, Mornington, Tasmania 7018 pay to Jason Myles Luck, 19 Magnolia Road, Risdon Vale, Tasmania 7016, by way of compensation, an amount of three thousand five hundred and eighty four dollars [$3584], such payment to be made within 21 days of the date of this decision. Tim Abey Appearances: Date and Place of Hearing: |