T10328
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 John Victor Marmarinos and The Launceston Community Legal Centre Inc.
Industrial dispute - termination of employment - procedurally unfair - reinstatement impractical - compensation - Order REASONS FOR DECISION [1] On 24 July 2002, John Victor Marmarinos (the applicant), applied to the President, pursuant to s.29 (1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with The Launceston Community Legal Centre Inc. (the respondent), arising out of his alleged unfair termination of employment; and, a dispute over the entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid. [2] On 25 July 2002, the President convened a hearing at the Workers Rehabilitation and Compensation Tribunal Rooms, Second Floor, Cnr St Johns and Brisbane Street, Launceston, Tasmania 7250 before myself, to commence on Friday 23 August 2002 at 9.15 am. [3] Mr J Marmarinos represented himself; Ms D Butler with Mr B Hamilton and Ms E Gobel appeared for the respondent. [4] At the commencement of the hearing Mr Marmarinos informed the Commission that he did not intend pursuing the claim for Long Service Leave and was granted leave to amend the application. [5] After hearing preliminary submissions the parties adjourned into conference. Arising out of the conference it was agreed the hearing be adjourned sine die to enable the respondent to give consideration to a settlement proposal. [6] On 30 September 2002 the matter was relisted for hearing in the Supreme Court, Cameron Street, Launceston, Tasmania on Thursday 17 October 2002 at 1.30 pm. [7] On that day a change of appearance was recorded. Mr S McElwaine, of Shaun McElwaine, Barristers and Solicitors, sought and was granted leave to appear for and on behalf of the respondent. [8] After receiving a report back, it was obvious to the Commission that the conciliation conference had failed to find a resolution to the dispute and it was agreed the matter should be set down for hearing. The hearing adjourned on that day with the Commission issuing directions to the parties. [9] On 7 February 2003 further directions were issued. [10] On 11 February 2003, the matter was again relisted for hearing in the Workers Rehabilitation and Compensation Tribunal Rooms, Second Floor, Cnr St Johns and Brisbane Street, Launceston, Tasmania on Thursday 3 April 2003 at 11.00 am and Friday 4 April 2003 at 9.30 am. [11] On that day the applicant sought and was granted leave to further amend his application to have the Commission determine the alleged unfair termination and a breach of award claim. However, at a later time, that too was amended by withdrawing the dispute in respect to the breach of award matter. Background (12) The applicant, being a solicitor with a practicing certificate, commenced employment as a Welfare Rights Advocate, at the Launceston Community Legal Centre (the Centre), run by the respondent, on 9 August 1999. At that time Mr Noel Wilson was the Manager of the Centre. The applicant was employed under the terms of the Community Services Award. (13) Mr Wilson ceased work in September 2001 due to ill health. (14) On 10 December 2001 Mr Bob Hamilton was appointed Manager of the Centre. (15) In correspondence of 18 March 20021, Mr Hamilton advised the applicant that there appeared to be a number of issues between the applicant and other staff and that he [Mr Hamilton] would be writing to him in a few days setting out those issues and inviting him to respond. (16) Mr Hamilton gave the applicant, on 26 March 2002, a document2 [dated 25 March 2002] setting out allegations made against him in respect to his personal conduct towards other staff members and allegations that had arisen regarding his workplace and professional practices as a Welfare Rights Advocate. (17) The applicant was required to respond to the allegations, either verbally or in writing, on 3 April 2002. However, he was also advised that an alternative date could be arranged if the date nominated by Mr Hamilton did not provide him with sufficient time to prepare a considered response. In addition, he was told the allegations, if proven, could jeopardise his employment with the respondent and for that reason he could have an advocate of his choosing attend the meeting. (18) Briefly stated the allegations arose out of:
(19) A short time after receiving, from Mr Hamilton, the document containing the allegations, the applicant went off work giving no indication when he intended returning to work. (20) The applicant did not respond to the allegations on 3 April 2002 nor did he make any attempt to have the meeting date changed. He did, however, provided Mr Hamilton, on 4 April 2002, with a workers compensation medical certificate to cover the period 26 March to 11 April 2002, which cited anxiety/stress as his incapacity to work. (21) He also made a claim under the Workers Rehabilitation and Compensation Act 1988 alleging stress incurred in the workplace. The insurer disputed this. (22) On 1 July 2002 an Order by Consent3 was issued pursuant to s.61 of the Workers Rehabilitation and Compensation Act 1988, certifying that there was a dispute, however, the applicant was not entitled to weekly payments. (23) Since that time, the applicant has not sought to bring this matter to hearing. (24) Eight Workers Compensation Medical Certificates were issued, stating the applicant was incapacitated for work, between 26 March 2002 and the date of termination. The only day not covered by a medical certificate was 19 April 2002. The applicant returned to work for that day, however, from that day on, his absence from work was covered by workers compensation medical certificates. (25) In correspondence dated 14 June 20024, the applicant was again requested by Mr Hamilton to attend a meeting between 11.00 am to 1.00 pm on Wednesday, 19 June 2002 to provide responses to the allegations particularised in the letter dated 25 March 2002. The letter concluded by stating: "Should you not attend as indicated above, then I shall have no choice but to submit a report to the board that takes into account your non-attendance." (26) On the same date the applicant was also served notice of three new allegations. Those issues centred on:
(27) The applicant was expected to address these additional issues at the meeting on Wednesday, 19 June 2002. (28) In response, the applicant, in correspondence dated 17 June 20025, advised Mr Hamilton, in part:
(29) Mr Hamilton, on 27 June 20026, received another Workers Compensation Medical Certificate from the applicant covering the period 21 June to 10 July 2002. The applicant also advised that, under instruction from his solicitor, he would not be attending the office to answer allegations made against him until his solicitor had contacted Mr Hamilton regarding the matters. In the same correspondence the applicant stated in part:
(30) Mr Hamilton acknowledged the above request on 27 June 20027 and informed the applicant:
(31) Mr Hamilton provided a written report, dated 26 June 2002, to the Chairman of the committee of management in which he:
(32) The applicant was advised that a copy of the report would be made available to him, if he so requested in writing. That request was not made until some time near the end of July 2002 and after he had been terminated. (33) In correspondence dated 2 July 20028, [which was hand delivered to the Centre at approximately 4.00 pm that day] the applicant advised the committee of management as follows:
(34) Notwithstanding that correspondence, the committee of management decided, at it's meeting which commenced at 6.00 pm on 2 July 2002, to dismiss the applicant. This decision was based on the report provided to them by Mr Hamilton dated 26 June 2002. (35) In correspondence, under the signature of Mr Hamilton and dated 3 July 2002,9 the applicant was advised:
(36) On 16 July10 the applicant, in an attempt to have the respondent reverse the decision to terminate his employment, responded to the allegations of the 25 March 2002 by way of correspondence addressed to the committee of management. (37) The committee of management meeting on 30 July 2002 reconsidered its previous decision to terminate the applicant, however, it decided that decision should stand. The Applicant's previous record (38) On 28 February 2000, the applicant was required to attend a disciplinary meeting with Mr Noel Wilson and the then President of the Committee of management, Mr Geoff Phillips. The catalyst for this meeting was the photocopying of a picture that was considered pornographic and various comments made by the applicant that allegedly offended Ms Emma Smith and other staff members. (39) In correspondence dated 1 March 2000, the applicant was notified by Mr Noel Wilson that the complaints made against him were legitimate. The correspondence ended by stating:
The Evidence (40) Evidence was taken from the following witnesses:
(41) The evidence relating to the termination of the applicant, for convenience sake, will be dealt with under the following headings: Breaches of the Centre's code of conduct The incidents involving Ms Emma Smith (42) In October 200112, Ms Emma Smith wrote to the Committee of management of the Centre detailing the applicant's behaviour with regard to unwelcomed and inappropriate remarks made to her by the applicant. (43) In her evidence Ms Smith stated that she had been requested by the Committee of management to document as much as she could recall about incidents between herself and the applicant. (44) In short they were:
(45) She said the comments made by the applicant during those incidents could be categorised as being: unwanted; embarrassing; making her feel uncomfortable; humiliating; ridiculous; and annoying. (46) Ms Smith conceded that at least four of the issues listed in her letter of October 2001 could have dealt with on a previous occasion resulting in the applicant being given a first and final warning.13 They were issues number 1, 2, 11 and 12. (47) To the best of her knowledge all of the remaining issues i.e. 3 to 10 inclusive and 13, arose after the final warning was given to the applicant. (48) Ms Smith said the comments were fairly spasmodic and did not have much of an impact on her work, however, she hated being in the building on her own with the applicant and she had asked the manager to insure that did not happen. She added that she dealt with the interpersonal difficulties with the applicant by avoidance. (49) Putting to one side the four incidents that Ms Smith conceded were part of the final warning, it was the applicant's evidence that:
(50) Of the 13 allegations made by Ms Smith, I reject numbers 8 and 13, as they do not directly relate to the applicant's communication with Ms Smith. It was conceded that allegations numbered 1, 2, 11 and 12 were dealt with at the time when the applicant was given a first and final warning, therefore, only allegations 3, 4, 5, 6, 7, 9 and 10 remain. (51) In respect to a number of these issues, it was Ms Smith's evidence that she made notes at the time, however, none of the notes were produced and she was less than precise when it came to the dates they occurred but she believed they took place after the applicant was given his final warning. (52) The evidence of the applicant and Mr Wilson, whose ill health I have taken into consideration, going to the dates on which the incidents occurred, was also less than precise. (53) In making findings on each of the remaining allegations, I have been mindful of the fact that the applicant was given a first and final warning on 1 March 2000, and it is imperative that he not face disciplinary proceedings on the same issues that gave rise to that warning. (54) The file notes associated with the final warning as seen in exhibits A6 and R1 and the concession made by Ms Smith, clearly establish that allegations 1, 2, 11 and 12 were dealt with during that process, however, in his evidence Mr Wilson stated that:
(55) I now turn to the outstanding allegations. Allegation 3 (56) Allegation 3, Ms Smith said, occurred when the applicant came from the kitchen to the reception area with a magazine containing a quiz about sexual styles and asked her what sexual style she and her partner fitted into. (57) Ms Smith did not respond and just stared at the applicant in disbelief before eventually walking away. She said the comment made her feel uncomfortable and she brought it to Mr Wilson's attention "because I thought that one was particularly inappropriate ...".15 (58) It was Mr Wilson's evidence that he recalled the incident but was unclear as to how he became aware of it. He agreed the comment would have breached the final warning given to the applicant on 1 March 2000, however, he could not recall whether the comment was made before or after that warning. (59) The applicant denied the comment was ever made. (60) I accept the comment was made to Ms Smith and it made her feel very uncomfortable. I also accept that she brought it to the attention of Mr Wilson, however, I am unable to conclude with any certainty that the comment was made after the applicant received his final warning. Allegation 4 (61) Allegation 4 according to Ms Smith's recollection centres on a remark made by the applicant when she returned from lunch on one occasion with messy hair and the applicant told her she looked sexy with messy hair. Ms Smith said she felt embarrassed and mentioned it to Mr Wilson. (62) Mr Wilson said in his evidence that he recalled the comment and in answer to the question, did Ms Smith complain about it Mr Wilson said:
(63) He went on to say:
(64) Whilst Mr Wilson had difficulty recalling when the comment was made, he said, "I suspect that it was after"18 the final warning. (65) The applicant denied making the comment. (66) I accept the applicant made the comment and it embarrassed Ms Smith. I would also conclude that it was made after the final warning and no formal complaint [verbal or written] was made to management. Mr Wilson was in the vicinity at the time the comment was made and he did not view it as an issue that would have breached the applicant's final warning. I do not propose to overturn that view. Allegation 5 (67) A remark made by the applicant gave rise to allegation 5. Ms Smith was demonstrating a yoga position to another female staff member in the kitchen, when the applicant is alleged to have said that it would good for sex with your partner. Ms Smith said she felt humiliated. When asked whether or not she notified Mr Wilson her response was:
(68) The applicant denied making the comment but accepts that he, Ms Smith and another employee did meet up but, he said:
(69) Mr Wilson was of the view that Ms Smith did not come to him and complain about the remark and he did not interpret the statement she made at the time as a complaint, but he acknowledged, "she was quite obviously rattled by it".21 (70) It was his evidence that he spoke to the applicant and said words to the effect "You will have to stop making these remarks, you know."22 (71) Mr Wilson was of a mind that this incident occurred after the final warning was given. (72) I accept the comment was made and Ms Smith felt humiliated by it. I am satisfied it was made after the final warning. Even though no formal complaint [verbal or written] was made to management, I would have to conclude that it was an inappropriate and unwanted remark on the part of the applicant. Allegation 6 (73) Allegation 6 alleges the applicant gave details to Ms Smith about going to the Miss Nude Tasmania Show. Ms Smith said it was an uninvited comment and "I did mention that to Mr Wilson. I don't think I put it in the guise of a formal complaint, I just said that I felt it was inappropriate and that I had made a note of it."23 (74) The applicant conceded that he made the comment but it was not said to Ms Smith. He asserted that Ms Smith overheard a conversation he had with another male employee. (75) Mr Wilson could not recall when this incident occurred. He said, "...because it wasn't actually formally a complaint I didn't feel obligated to actually regard it as an act of sexual harassment."24 (76) In respect to this incident, there is insufficient evidence that would enable me to establish when it occurred or for that matter to whom the comment was directed. Allegation 7 (77) Allegation 7 arose after the applicant made a comment to Ms Smith having received a message from her optometrist advising that her new contact lens had arrived. The applicant said to her that she should get coloured ones as she had nice eyes but they could be nicer. (78) Ms Smith said she felt "...embarrassed and humiliated and annoyed at the ridiculousness and just annoyed that he felt he had a right to pass comment."25 (79) The applicant conceded to having made a remark similar to or the same as those set out in this allegation. (80) Mr Wilson could recall this being brought to his attention; however, he was of the view that it took place before the final warning. (81) I accept that Ms Smith was embarrassed by the comment, however, I am unable to conclude with any certainty that the comment was made after the applicant received his final warning. Allegation 9 (82) Allegation 9 alleges the applicant, when nominations were being called for people to participate in the Olympic torch relay, stated that Ms Smith should apply as she was an attractive woman and she should try to get on television. (83) Ms Smith said the comment, which she did not bring to the attention of Mr Wilson, made her feel ridiculous, embarrassed and annoyed. (84) The applicant conceded to having made remark. (85) Mr Wilson said he recalled the incident and he assumed it occurred before the final warning. He said:
(86) The Olympic Games were in September 2000. Some time prior to that date, nominations were called for community torchbearers to participate in the torch relay. On the balance of probabilities, the statement made by the applicant would have been around the time those nominations were called. As the final warning was given on 1 March 2002, it is more likely than not that this incident occurred prior to the final warning Allegation 10 (87) In allegation 10, Ms Smith was of the view that the applicant made obvious looking gestures at her when she wore a black ankle-length velvet skirt and top to work. Ms Smith, who was not in the habit of wearing a skirt or dress to work, said "I was sitting at the reception desk - and he looked me up and down with an obvious looking gesture and said, "Mm, and what has Emma got on today?""27. She said she found the comment embarrassing and humiliating and ridiculous. Later in her evidence she said, "it was the obvious looking up and down gesture that ...... I objected to."28 Ms Smith said she did not bring this incident to Mr Wilson's attention. (88) The applicant denied making the statement suggested by Ms Smith. He said:
(89) It was Mr Wilson's evidence that he was present at that time and he:
and
(90) There is insufficient evidence to enable me to make finding that the applicant made an "obvious looking up and down gesture" that gave rise to this allegation. In addition I am unable conclude with any certainty that the incident took place after the applicant received his final warning. The issue involving Ms Judith Blades (91) In approximately June/July 2001 the applicant was involved in an incident, which according to Ms Blades, was unwanted touching of her when the applicant attempted to do up the partially undone zip on her dress. (92) It was her evidence that she walked into the workplace kitchen. The then Manager Mr Wilson was seated at the table and the applicant was standing and talking to him. As she walked to the urn the applicant attempted to do up the partially open zipper on her dress. She swiped at his hand and told him to get his hands off her. The applicant responded by saying that he was only doing up her dress, to which Ms Blades responded "You're really fucking stupid, you don't get it do you? You don't touch people." (93) Ms Blades was of the opinion that it was not necessary to make a formal complaint as Mr Wilson was present when the incident occurred. (94) It was the applicant's evidence that a friendship existed between himself and Ms Blades - they had gone out to dinner a couple of times and Ms Blades had visited his place on two occasions. (95) He conceded that, around March/April 2001 his relationship with Ms Blades had changed. (96) The applicant disagreed with the sequence of events as described by Ms Blades. He recalled it as follows: (97) When he entered the kitchen Ms Blades was leaning against the table with a drink in one hand and a piece of cake or a biscuit in the other. She was looking at another employee who was at the urn. Mr Wilson, who was present at the time, mentioned to Ms Blades that her zipper was undone. The applicant said that "..without even me thinking about it, I sort of walked towards her, I said, `hang on Jude, I'll do it,' and....I attempted to do it up".31 (98) The applicant did not challenge the verbal reaction of Ms Blades, however, he did not regard his action as an unwelcomed advance and was shocked by her reaction. (99) Mr Wilson was present at the time of the incident. He said the zip on Ms Blades dress "was like half-way down but not in any provocative way and he zipped it up and I sort of looked at him curiously, regarded it as sort of rather odd behaviour".32 (100) Mr Wilson agreed that the behaviour was not what one would normally expect in the workplace and he said Ms Blades "was furious, absolutely."33 (101) Mr Wilson agreed that the action of the applicant was in breach of the final warning, however, he did not take it up because he accepted that Ms Blades dealt with it herself, at the time. (102) Whilst the evidence differs in respect to the sequence of events surrounding this incident, nevertheless, there is no doubt that the applicant took it upon himself to zip up the dress. Ms Blades reaction and comments were clearly indicative of unwanted touching. Therefore I would have to conclude that the applicants conduct was totally inappropriate especially given this incident occurred after 1 March 2000 warning. The issue involving Ms Dianna Gleeson (103) The nature of this allegation, made against the applicant, was set out in a statement by Ms Dianna Gleeson at Appendix 12 of the document34 dated 25 March 2002. (104) Mr Hamilton, the current manager of the Centre, said in his evidence that the statement was "of great importance in one respect."35 (105) He went on to say it:
(106) Mr Hamilton acknowledged that this issue was considered at the Committee of management meeting on 2 July 2002 and he recalled Mr Malcolm Upston, a member of the committee and witness to the event, pointing out that "it was an innocuous situation."37 (107) Ms Gleeson did not give evidence at the hearing. (108) Given all the above I do not accept this issue constitutes a valid reason for termination. Conducted casework outside his area of responsibility - Anti-Discrimination (109) The respondent alleged the applicant involved himself in casework outside his area of responsibility, in that, discrimination law was not his area of law or the area of law to which his employment related. (110) The issue was brought to the respondent's attention by Ms Judith Blades, an employee at the Centre. Her allegation was as follows: (111) On Tuesday 12 February 2002, Mr Dave Davis discussed with her what he considered to be a discrimination issue by Launceston Council against some youths living in the park. (112) The applicant was in the vicinity of her office when the discussion took place. (113) Mr Davis wanted Ms Blades to lodge a claim with the Anti-Discrimination Commission of Tasmania (114) Ms Blades told Mr Davis that she only dealt with disability discrimination and informed him that the Centre would not represent his clients. She contended that she did not authorise her name to be placed on the document. (115) Sometime after that exchange Ms Blades had occasion to write up a letter in the mail book and noticed a record of the applicant sending the discrimination application. (116) Mr Davis stated in his evidence that he recalled discussing the issue with the applicant who advised him that it was not his area of work and that he [Mr Davis] should speak with Ms Blades. He said he went to see Ms Blades who told him that he would need to proceed with the issue himself as it did not fall within the area of her expertise. (117) Mr Davis decided that he would proceed with the application. (118) The Anti-Discrimination Commission, Tasmania, Claim Form asks the question "Is there anyone who is helping you with this claim with whom you would like us to talk?" Mr Davis said he provided the name of Judith Blades on the form, which he completed because, although Ms Blades had indicated she could not lodge the application or represent his organisation in any way, she was willing to allow them to make contact with her. (119) Mr Davis said the applicant did not enter Ms Blades office, but he recalled him waiting in the reception area. (120) It was the applicant's evidence that he:
(121) In respect to this matter, the applicant conceded that he placed the claim form in the Centre's mail system and recorded it in the mail out book. However, this ill advised action and the evidence relating to this issue, does not establish, on the balance of probabilities, that the applicant assisted in the preparation of the application to the Anti-Discrimination Commission; approved its contents; authorised or countenanced the use of Ms Blades' name as the contact person for the application or gave legal advise outside his area of responsibility. Gary Drake incident (122) On 1 March 2002, the applicant wrote a letter of demand, on behalf of Mr G Drake, to a person requesting money be paid for an alleged breach of agreement. (123) The letter, written on Launceston Community Legal Centre Inc. letterhead paper, was signed off by the applicant rather than for and on behalf of the Centre. It warned that, if no attempt was made to finalise the demand within seven days, "Mr Drake reserves his right to have the vehicle seized and that you will therefore forfeit any monies that you have payed thus far."38 (124) The person subsequently responded to the letter of demand by way of a letter, dated 5 March 200239, [received at the Centre on 13 March 2002] addressed to the applicant, enclosing a cheque for $2500.00 payable to "G Drake". (125) Mr Hamilton presented the applicant with the letter and cheque and during ensuing discussions, requested the file on this matter. (126) Mr Hamilton stated his concerns as follows:
(127) Mr Hamilton agreed that the applicant had no understanding of the potential implications of this action for the centre or his own practising certificate. He said he was further concerned when he heard the applicant's solution to the situation they found themselves in i.e. just mail the cheque to the client. (128) Eventually, Mr Drake attended the Centre and signed a receipt for the cheque. (129) The applicant disagreed that he was operating outside his area of practice because the matter was associated with a client who had an issue that involved welfare rights. He said he was surprised the person sent him the money because he was only asking her to advise him of her intentions, within seven days. (130) The applicant, being the holder of a Practising Certificate issued by the Law Society of Tasmania, is authorised to practice as a legal practitioner under the following conditions:
(131) In his evidence the applicant said he was not aware of a condition in his Practising Certificate in respect of receiving monies nor did he consider the effect of such a condition. (132) The applicant has failed to persuade me that breach of contract issues, along with letters of demand, fell within his area of practice. He was clearly employed as a welfare rights advocate and on the very rare occasion he was required to perform duties outside that area, it would be with the knowledge and approval of the employer. (133) Apart from operating outside his area of practice, the applicant had little or no regard for the requirements contained in his Practising Certificate and in particular Clause 3 where it states, "That the practitioner is not to receive or hold any money of any client." (134) Whilst I accept it was not the applicant's intention to receive the cheque, nevertheless, had the letter been worded more appropriately by clearly indicating that he was writing on behalf of Mr Drake and that any moneys were to be forwarded to him, then the potential implications for the Centre and his own Practising Certificate may not have been called into question. (135) I therefore conclude that the applicant was less than professionally prudent when handling this issue and therefore it constitutes a valid reason for complaint. Terry Fellows incident (136) This matter arose out of a complaint made by Mr Terry Fellows to the Committee of management.41 (137) In that letter, Mr Fellows states that he was asked by Coral Fellows to pick up some documents, belonging to her, from the Centre. When he arrived to pick them up, a person named Bob told him that Coral Fellows was required to collect them herself. (138) Mr Fellows went on to make the allegation that:
(139) On 14 June 2002, Mr Hamilton wrote to the applicant raising concerns about his workplace and professional standards. He said:
(140) Mr Hamilton was concerned that the applicant:
(141) Shortly stated, it was the applicant's evidence that he had a verbal authority from Mrs Fellows and that Mr Fellows had provided the document in the first instance and he [Mr Fellows] had acted on her behalf. He said that, as Mr Fellows had given him the document, he would have returned it to him. (142) During cross-examination the applicant stated:
(143) It would make sense, if the applicant was off work, that he advise Mr Fellows to obtain the document he required from the Centre. Even if I accept the applicant told Mr Fellows to contact Ms Emma Smith, I am not satisfied that he told Mr Fellows there would be no requirement to produce appropriate authority upon collection. (144) Irrespective of any direction or advise given by the applicant to Mr Fellows about the collection of his mother's marriage certificate, I would expect that it was known and accepted practice of all employees at the Centre that they only hand over client documents to the established rightful owner or their authorised agent. (145) Mr Fellows did not give evidence at the hearing nor was he present, therefore, I must treat his letter of complaint with some caution, however, it seems to me that when he went to the Centre to collect the marriage certificate, a person named Bob declined to hand it over and required Mrs Coral Fellows to collect it. (146) Mrs Coral Fellows eventually attended the Centre. It was the fact that she was able to obtain the document from the receptionist, without being required to produce any identification, which gave rise to the complaint. (147) Whilst one might be critical of the applicant for only obtaining a verbal authority from Mrs Coral Fellows in the first place, I am not satisfied this complaint has been made out. Delegation to Canberra (148) As stated above the applicant was incapacitated for work, between 26 March 2002 and the date of termination. The only day not covered by a medical certificate was 19 April 2002. The applicant returned to work for that day, however, from that day on, his absence from work was covered by a workers compensation medical certificate. (149) Whilst at work on that day, the applicant volunteered to be part of a delegation to go to Canberra between 24 and 27 June 2002, presumably for the purpose of dealing with welfare rights issues. (150) An outside body would meet the cost of the airfares, however, the cost for accommodation and meals were to be paid by the Centre. (151) The applicant did not raise this matter with the respondent before volunteering, saying that:
(152) Mr Hamilton found out about this matter when he received a telephone call from a person in Victoria who called for the purpose of setting up flight bookings for the applicant. (153) In correspondence dated 14 June 2002, Mr Hamilton noted that the applicant did not inform him or seek permission to volunteer for or proceed upon the delegation. He further stated:
(154) I accept at the time of volunteering the applicant had no indication or guarantee he would be part of the delegation. Even so, I am of the view that the most appropriate course of action would have been to discuss the issue with management before volunteering, especially given the respondent was required to contribute to the cost of the trip. (155) In that he did not follow that course of action, I believe the applicant showed a lack of judgement for a person in his position and as such his volunteering without prior approval was inappropriate. Misrepresentation of content of Doctors Certificate (156) In correspondence dated 5 March 2002, the applicant [among other things] advised Mr Hamilton:
(157) The medical certificate itself does not say that. The medical certificate, dated 15 November 2001, merely says that the applicant was unfit for his normal work until 21 November 2001 inclusive. (158) It was Mr Hamilton's view that it was:
(159) I accept the applicant's correspondence could be said to lack the detail that would be expected of a solicitor, however, I have not been convinced there was any intention on the part of the applicant to misrepresent the situation, therefore, I do not accept it would constitute a valid reason for termination. Allegation against Centre Manager (160) The applicant, in correspondence dated 17 June 2002,47 requested a meeting with the Centre Manager, Mr Hamilton, along with members of the Committee of management to discuss "your [Mr Hamilton's] comments to a mutual colleague from Hobart about being offered my position by you [Mr Hamilton] and the comment made by you [Mr Hamilton] to him that the committee wants me out." (161) Mr Hamilton vigorously denied this. (162) The applicant stated that he had documented a conversation after receiving a phone call. However, he was not prepared to identify the person who allegedly provided the information nor did he provide the Commission with any other evidence or material to support his contention. (163) As the applicant has not been able to substantiate this allegation, it leaves me no alternative but to conclude that it was either fictitious or at best irresponsible conduct. E-mail to the Premier (164) On 25 June 2002, the applicant, whilst still absent from work with a workers compensation medical certificate, sent an e-mail to the Premier of Tasmania, with a copy to other Members of Parliament [government and opposition]. It states:
(165) The applicant did not deny sending the e-mail. He accepted it contained a strong allegation but he believed it to be true. (166) I am of the view that this e-mail was designed to politicise the applicant's allegation against Ms Anita Smith - it was not the action of a person who wanted the Labor Party to sort out an internal party issue. If that was the case, it begs the question, why did the applicant send the e-mail to various Members of Parliament, which included members of the government and opposition. (167) This I believe to be totally inappropriate conduct and if the applicant had a grievance with Ms Smith then he should have followed the process contained in the Disputes And Grievance Procedures clause contained in the Community Services Award. Relationship difficulties with Centrelink (168) The respondent relied on Concut Pty Ltd v Worrell HCA 64 [2000] to introduce evidence of misconduct against the applicant that was otherwise not available to the respondent at the time of termination. This allegation was in respect to an incident, which occurred in September 2001, involving Centrelink. This incident culminated in:
(169) Evidence was adduced from Mr Justin Kearney, a business leader with Centrelink who had the responsibility for maintaining relationships with welfare rights organisations in every State. (170) It was his evidence that the relationship between Centrelink and the Launceston Community Legal Centre had been "tainted by the previous experience of the last two to three years". (171) Mr Kearney said there had been significant and continuous negative feedback from Centrelink officers and it had reached a stage where Centrelink believed it was not in the customers best interest to be referred to the applicant. (172) It was also his evidence that:
(173) Mr Kearney said the relationship had deteriorated to such an extent that he was required to put in place mechanisms to limit the contact between Centrelink officers and the applicant. (174) Approximately two weeks after an agreed process was put in place, an incident occurred between the applicant and a Centrelink employee that led to Mr Kearney returning to Launceston to undertake further discussions with the applicant. (175) Mr Kearney said the agreed process was pivotal to the applicant's relationship with Centrelink and the applicant had broken it. This he regarded as extremely serious. He requested the applicant apologise to the officer and commit to following the previously agreed process. (176) The incident centred on a letter sent by the applicant to Ms S Conway,48 which Mr Kearney contended, was "written out of ignorance of the actual events of this particular matter "and "based on a misconception". (177) The applicant, in correspondence dated 1 October 2001,49 apologised to the Centrelink officer. (178) The applicant agreed that dealing with Centrelink was the essential focus of his practice as a Welfare Rights Advocate and he was of the view that he maintained an appropriate professional relationship with Centrelink. He did however confirm:
(179) I accept this issue falls within the proposition expressed in Shepherd (1931) 45 CLR 359 at 377 and relied on in Concut v Worrell. (180) I also accept Mr Kearney's evidence on this issue and in doing so I would have to conclude that the applicant's dealing with Centrelink, during the period in question, fell far short of what I would expect of someone in the applicant's position. (181) The applicant's conduct was such that it required a process to be put in place to limit contact between Centrelink officers and the applicant. It is not hard to understand why the respondent viewed this issue with grave concern. (182) It is even more disconcerting when, approximately two weeks after the agreed process was put in place, another incident occurred between the applicant and a Centrelink employee that led to Mr Kearney returning to Launceston to undertake further discussions with the applicant. This required, as one of its outcomes, the applicant providing a letter of apology to the employee concerned. (183) I would therefore conclude that this incident falls into the category of misconduct on the part of the employee. Other issues (184) There were additional allegations that questioned the applicant's professional and workplace practices, however, I would categorise them as being of less significance than the previous issues and in view of my findings on the above, I see no useful purpose being served by going to those matters. Was there a valid reason for termination (185) Section 30[5] of the Act provides that the onus of proving the existence of a valid reason for termination rests with the employer. (186) Having made a number of adverse findings against the applicant and taking into consideration the fact that he had previously been given a first and final warning, I would have to conclude that the onus on the respondent has been satisfied. Was the termination unfair (187) Section 30[6] of the Act provides that the onus of proving that the termination was unfair rests with the applicant. (188) In this context, section 30[7] reads:
(189) In essence, this comes down to a question of whether procedural fairness was afforded to the applicant. Dismissal process (190) Mr Hamilton acting on behalf of the respondent provided the applicant with written allegations on 26 March 2002. (191) The applicant was required to respond to the allegations, either verbally or in writing, on 3 April 2002. He was also advised that an alternative date could be arranged if the date nominated did not provide him with sufficient time to prepare a considered response. In addition, he was told the allegations, if proven, could jeopardise his employment with the respondent and for that reason he was advised to have an advocate of his choosing attend the meeting. (192) The applicant went off work shortly after receiving the document containing the allegations and gave no indication when he might return. (193) He did not respond to the allegations on 3 April - he did not take up the offer to suggest an alternative date - nor did he, at that time, provide any evidence verifying he was medically unfit to respond to the allegations. However, he did provided Mr Hamilton, on 4 April 2002, with a workers compensation medical certificate to cover the period 26 March to 11 April 2002, which cited anxiety/stress as his incapacity to work. (194) Over a period of time, the applicant provided Mr Hamilton with a number of these certificates, however, at the time of termination, he had not sought to progress or finalise his workers compensation claim. (195) On 14 June 2002, the applicant was again requested by Mr Hamilton to attend a meeting, between 11.00 am to 1.00 pm on Wednesday 19 June 2002, to provide responses to the allegations particularised in the letter dated 25 March 2002. The letter concluded by stating: "Should you not attend as indicated above, then I shall have no choice but to submit a report to the board that takes into account your non-attendance." On the same date the applicant was also served notice of three new allegations. (196) On 17 June 2002,50 ie two days prior to the proposed meeting date, the applicant advised Mr Hamilton:
(197) Once again, the applicant did not indicate when he would be returning to work. (198) The applicant did not attend the meeting on 19 June 2002 and two days later Mr Hamilton wrote51 to him noting [among other things] the applicant:
(199) On 26 June 2002, Mr Hamilton provided a written report to the Chairman of the Committee of management in which he:
(200) On 27 June 2002 the applicant provided Mr Hamilton with another Workers Compensation Medical Certificate covering the period 21 June to 10 July 2002 and at the same time advised Mr Hamilton that:
(201) Mr Hamilton responded to that correspondence on the same day, informing the applicant that:
(202) The applicant by some means found out that the Committee of management was going to consider Mr Hamilton's report at its meeting on 2 July 2002. (203) The applicant hand delivered a letter52 to the Centre at approximately 4.00 pm. In which he informed the Committee of management that:
(204) Nevertheless, the Committee of management decided, at it's meeting on 2 July 2002, to dismiss the applicant effective as of 5.00 pm on 9 July 2002. This decision was based on the report provided to them by Mr Hamilton dated 26 June 2002. (205) On 16 July 2002 the applicant decided to respond53 to the allegations. (206) The Committee of management meeting on 30 July 2002 reconsidered its previous decision to terminate the applicant, however, it decided the decision should stand. (207) In view of the above, the question to be determined is whether or not the applicant was denied procedural fairness. (208) In deciding this issue I have considered all the evidence and I find that the termination was procedurally unfair for the reasons I now outline. (209) Although the applicant gave no reason for his non-attendance at the first meeting, nevertheless, he provided a reason for not attending the second. That being, he was still receiving professional help from his general practitioner and a psychologist for his medical condition - stress and anxiety. Mr Hamilton received this, at the latest, a day before the meeting. (210) It was not until two days after the scheduled meeting did Mr Hamilton indicate to him that he, in effect, did not accept the applicant's letter of 17 June 2002, in respect to his illness, as there was no medical evidence in support to his claim. This view should have been conveyed to the applicant prior to the meeting. (211) The other issues of concern are that:
(212) I accept the applicant advised Mr Hamilton that he did not want to receive any further letters regarding complaints made against him, however, I do not accept that request extends to a report to the Committee of management, which contained findings and a recommendation. (213) It also concerns me that the Committee of management continued to consider and adopt Mr Hamilton's report, without any response from the applicant, even though the applicant had advised them, for the first time in a bit over three months, that he was prepared to address the allegations by a certain time i.e. the next committee meeting. (214) Having received that letter54 and given:
the respondent should have deferred consideration of the report until its next meeting on 30 July 2002, at which time the applicant's response would have been available. (215) As it turned out the applicant responded on 16 July 2002 - two weeks prior to the committee meeting held on 30 July 2002. The committee of management on that date confirmed the decision taken on 2 July 2002. Having made the decision to terminate the applicant at the previous meeting, I cannot be satisfied that the response from the applicant was considered with an open mind. Remedy (216) The primary remedy under s.31 of the Act is of course reinstatement or re-employment. It is only where that is considered to be impracticable, that compensation should be contemplated. (217) Having considered the evidence as a whole and observing the parties during the hearing, I have no hesitation in finding that it would be impracticable to order reinstatement or re-employment of the applicant. I am also of the view that it would extremely difficult, if not impossible, to re-establish an amicable employer/employee relationship. (218) That being the case, I now turn my attention to compensation and in doing so I am required to have consideration for s. 31(11) of the Act which states:
(219) The applicant was employed by the respondent for nearly three years and given the fact and circumstances associated with this application I would have to conclude the applicants employment was unlikely to continue for any lengthy period of time (220) In all the circumstances I consider the appropriate level of compensation to be four weeks pay at the rate of $715 54 per week. [18.83 x 38 = 715.54] ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, The Launceston Community Legal Centre Inc. (the respondent) pay to John Victor Marmarinos of 18 Adelaide Street, Launceston, Tasmania 7250 (the applicant) the sum of two thousand eight hundred and sixty two dollars and sixteen cents ($2,862.16) by no later than 5.00 pm on Thursday 10 July 2003.
R J Watling Appearances: Date and place of hearing: 2003 1 Exhibit R8 |