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T10243

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Jason Myles Luck
(T10243 of 2002)

and

Mornington Garden Supplies and Woodyard

 

COMMISSIONER T J ABEY

HOBART, 6 September 2002

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:

"I am writing to you in reference to the application lodged by Jason Myles Luck in respect to an industrial dispute with Mornington Garden Supplies and Woodyard (T No 10243 of 2002).

I will not be attending the hearing to be held on July 16th at 9.30am, and I wish it to be noted that Mr Luck's termination of employment was not due to his position being made redundant, it was due to the fact that his work attitude had been unsatisfactory for some years now.

Attached is a letter outlining the reasons for Mr Luck's termination of employment, please use this information as responses to any allegations put forward at the hearing."

"Re: Jason Luck - Termination on Employment

To whom it may concern,

Approximately 3 or more years ago, I was advised to let Jason go by my accountant and a number of customers that he had upset with comments and a bad attitude. Not only was he upsetting my customers, but also fellow workers due to a consistent bad work attitude, and derogatory comments about myself.

At times Jason would come to work with a smile on his face and have a positive outlook on work, which made it a pleasure to work with him, however, this mood would only last for a few days at a time, before Jason would relapse into a more negative and uncooperative manner. It was these mood swings, which made it difficult to work with Jason as when he was feeling good, so would the rest of the workforce, yet when he was having a "bad" few days, he would bring the rest of the workforce down with him.

Unfortunately, the times when Jason was negative began to outweigh the times when he was positive about his work. Due to this I sought advice about whether I could send him to a course or something of the like to try and help him, yet was informed that it was very hard to try to "change" Jason's "problems".

The final incident, which confirmed my suspicions that it would be a positive step forward for the company to let Jason go, occurred in early 2002. Whilst working behind the counter, Jason spoke of me in a very derogatory and disrespectful manner in front of one of our regular, well-respected customers, and fellow workers. The exact words used by Jason in reference to me were "... a grey haired, silly old cunt" this comment was very discriminatory, vulgar, and definitely not tolerable.

After this incident we tried to place Jason in a new role where he had minimal contact with customers, by working mainly in maintenance in the shed. After approximately one month in this new role, his attitude failed to improve, and at times was even worse.

When the final decision was made to lay Jason off, I decided not to bring up all of the "nitty-gritty" reasons, which had contributed to my decision, as I believed that it would not help him find future employment opportunities."

[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:

"As you are aware this matter was listed for hearing on 16 July 2002.

As foreshadowed in your correspondence [undated but received in the Commission on 21 June], you chose not to be represented in the hearing.

The issue of representation is of course a matter for you to determine. I would, however, point out, that I am obliged to hear and determine applications on the basis of what is put to me. Correspondence, which cannot be tested under cross-examination, carries little or no weight.

In light of your foreshadowed non-attendance, I decided to hear the applicant's case. At the conclusion of Mr Aiken's submissions on behalf of Mr Luck, I adjourned the hearing until 19 August in order that you be given the opportunity to respond. The following documents are enclosed:

  • Transcript of hearing on 16 July 2002
  • Statement from Jason Luck
  • Notice of Hearing for 19 August 2002
  • Extract of sections 29 to 31 of the Industrial Relations Act 1984

Should you choose not to be represented, either in person or by agent, on 19 August, I will have no alternative but to determine the application on the material that is before me."

[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

"I arrived at work at 8.28am and the Managing Director (Robbie) called me into his office and sat me down, he said he didn't want to do this, but he had thought about it all weekend but seeing his son was going to be running the business and not him, and that we do not get along well, and that I would not fit into their new criteria, that he would have to let me go."

[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:

"(5) Where an employer terminates an employee's employment, the onus of proving the existence of a valid reason for the termination rests with the employer."

[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:

"(7) The employment of an employee must not be terminated for reasons related to the employee's conduct, capacity or performance unless he or she is informed of those reasons and given an opportunity to respond to them, unless in all the circumstances the employer cannot reasonably be expected to provide such an opportunity."

[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:

"When the final decision was made to lay Jason off, I decided not to bring up all of the "nitty-gritty" reasons, which had contributed to my decision, as I believed that it would not help him find future employment opportunities."

[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:

"(8) An employee responding to an employer under subsection (7) is to be offered the opportunity to be assisted by another person of the employee's choice."

[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:

"(11) In determining the amount of compensation under subsection (10), the Commission must have regard to all the circumstances of the case, including the following:

(a) the length of the employee's service with the employer;

(b) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated;

(c) any other matter the Commission considers relevant."

[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
COMMISSIONER

Appearances:
Mr P Aiken for Mr J M Luck

Date and Place of Hearing:
2002
July 16
August 19
Hobart

1 Exhibit A1
2 Exhibit A1