T10535
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Christopher Mark McVilly and Marksman Machine & Tool Co Pty Ltd ACN 067304161
Industrial dispute - termination of employment - application amended - no valid reason - unfair - reinstatement impractical - compensation REASONS FOR DECISION [1] Christopher Mark McVilly (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 a dispute with Marksman Machine & Tool Co Pty Ltd ACN 067304161 (the respondent) arising out of the alleged unfair termination of his employment. [2] In Reasons for Preliminary Decision, dated 4 November 2003, the Commission as currently constituted determined, as the threshold matter, the arrangement the applicant had with the respondent was consistent with being a contract of employment and an employer/employee relationship existed between the applicant and the respondent from 15 February 2002 to 31 October 2002. [3] The Commission also found the applicant undertook work for and on behalf of the respondent and that work included, among other things, general fabrication; making contact with subcontractors and suppliers; section rolling; general office work; quoting; purchasing. [4] The unchallenged evidence indicated the applicant received $800 per week net. This equates to a gross amount of $1088.46 per week. [5] This decision centres on the dispute that arose when the respondent terminated the applicant's employment on 31 October 2002. Interestingly, the applicant attended work for the week following his termination. BACKGROUND [6] The applicant said that he was led to believe that he would have continuing employment with the respondent although he indicated a review every 12 months was possible. [7] Whilst there was never any complaint about his work performance or conduct, the applicant conceded that productivity issues had, in a general way, been discussed. [8] According to the applicant, it was September 2002 when the relationship started to "fall apart", when Mr Leslie, for the respondent, took him to task about:
[9] It was at this time, the applicant said, Mr Leslie told him to take a week off as he [Mr Leslie] was of the view that "I was driving him nuts". The respondent never paid the applicant for that week. [10] After the forced leave, the applicant returned to work for a period of about six weeks before his termination. [11] The applicant described the sequence of events, which took place on 31 October 2002, [being the day of termination] as follows:
[12] The applicant returned to work the next day and worked the following week until the close of business on 6 November 2002. [13] Between 6 November 2002 and April 2003 the applicant engaged in other work and received $8,800 gross - $800 of that was received in the first three months following his termination. [14] Some five months after ceasing employment, the respondent raised issues alleging the applicant defrauded the respondent. The applicant said none of these issues were mentioned prior to his termination. [15] During the hearing on 13 October 2003, Mr Leslie gave evidence in respect to the termination of the applicant. The following extracts form transcript are instructive.
[16] And:
[17] And:
[18] And:
[19] And:
[20] And:
[21] And:
[22] During the hearing on Monday 1 December 2003, Mr Leslie did not give evidence under oath but only made submissions from the bar table. He stated that he required the applicant to stand down for one week in September 2002 because he:
[23] As Mr Leslie accepted the applicant was not terminated for reason of those issues, he was asked to describe what had taken place to bring him to the point where he had to dismiss the applicant. [24] His response was: he had spoken to Alan Lee and the applicant, the day before the employment relationship came to an end, about the purchase of steel for a job, which had not been invoiced. He said the job had been invoiced as Chris McVilly Welding yet the respondent had paid for the steel. [25] I gleaned from the submission made by Mr Leslie that he was referring to a job undertaken by the respondent for the Clarence City Council. Chris McVilly Welding invoiced the Council - the Council paid Chris McVilly Welding - Chris McVilly Welding paid the amount received for that job (less an amount paid to a sub-contractor) into the respondent's bank account, however, the entry in the bank deposit book showed the payment from the Clarence City Council and not Chris McVilly Welding. [26] Mr Leslie summarised the issues giving rise to the termination as:
[27] The applicant maintained, in respect to the issue involving the Clarence City Council, he followed the process he did because the respondent did not have a contract with them for the provision of goods and services and that was still the case in May 2003 (see Exhibit A19). However, the payment for the job, he said, was passed on to the respondent (less an amount paid to the sub-contractor/s to the respondent). [28] The applicant was insistent that Mr Leslie did not raise any issue of alleged dishonesty and deceit as grounds for his dismissal. FINDING [29] I accept the applicant, from 15 February 2002 to 6 November 2002, worked for the respondent, at the Cambridge site, between the hours of 8 a.m. and 5 p.m. Monday to Friday and performed work on some weekends. I also accept he had an expectation of continuing employment, albeit there would be a review period every 12 months. [30] Whilst presenting his submissions on 1 December 2003, Mr Leslie agreed the applicant had been stood down for one week in September 2002. He identified what he believed to be the issues that led to the stand down. It is worthy of note that those issues differed appreciably from those brought forward by the applicant whilst giving his evidence under oath. Nevertheless, Mr Leslie conceded that his stated reasons for the stand down did not give rise to the applicant's termination. [31] Section 30(5) of the Act states:
[32] When asked to identify the issues giving rise to the termination, Mr Leslie's submission was, among other things, as follows:
[33] These issues seem to be identical to Mr Leslie's stated prima facie reasons for the applicant's one-week stand down in September 2002, yet he earlier conceded they were not the reasons for termination. [34] In his evidence given under oath on 13 October 2003, Mr Leslie stated three areas of concern: namely, the relationship was not working; he was disappointed that certain machines were never used; and he was told the applicant was looking for premises of his own. [35] I have great difficulty reconciling these inconsistencies, however, in trying to establish the reasons for termination, I would prefer Mr Leslie's evidence given under oath, as apposed to his submission on 1 December 2003. [36] Section 30(6) of the Act states:
[37] In short, it was the applicant's evidence, which I accept, that the respondent did not make him aware of the reasons for dismissal nor was he given any opportunity to respond to any allegations made against him. [38] Section 30(7) and (8) of the Act states:
[39] I am satisfied on the evidence before me that the respondent did not have a valid reason for termination nor was the applicant afforded procedural fairness as envisaged by the provisions of s.30(7) and (8) of the Act, therefore, I find the termination of the applicant to be unfair. REMEDY [40] Section 30(9) of the Act states:
[41] Having regard to the nature of these proceedings and in particular the level of animosity between the parties, I have reluctantly come to the conclusion that reinstatement or re-employment of the applicant would be impracticable. Therefore, I have decided that it is appropriate that an order for compensation be made against the respondent and for the applicant. [42] In determining the amount of compensation, the Commission must have regard to all the circumstances of the case, including the following:
[43] Having regard to the above matters, and particularly the relatively short period of employment with the respondent, I am unable to conclude with any certainty that there was a real prospect of the applicant remaining in the employ of the respondent for any substantial period of time. I have come to that conclusion from the evidence and the fact that the applicant conceded that a review of his position would take place after 12 months' service. [44] I have decided to order compensation to the applicant in the amount of $10884.60 being calculated by reference to the income the applicant would have earned had he remained in the employee of the respondent from 6 November 2002 (being his last day at work) for a further period of 10 weeks. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that Marksman Machine & Tool Co Pty Ltd ACN 067304161 pay to the applicant, Christopher Mark McVilly, 44 Surf Road, Seven Mile Beach, Tasmania 7170 the sum of ten thousand eight hundred and eighty four dollars and sixty cents ($10884.60), by 5.00 pm Wednesday, 11 February 2004. This Order is in full and final settlement of the industrial dispute stated in application T10535 of 2002. Nothing in this Order shall be construed as to prevent the respondent from paying the above-mentioned sum prior to the due date.
R J Watling Appearances: Dateand place of hearing: 1 Transcript PN 2848 |