T10814
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australasian Meat Industry Employees Union, Tasmanian Branch
Industrial dispute - alleged unfair termination of employment - order issued REASONS FOR DECISION [1] On 23 April 2003, The Australasian Meat Industry Employees Union, Tasmanian Branch (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Newemploy Pty Ltd (Newemploy) arising out of the alleged unfair termination of employment of Ms Sandra Long and Mr Dane Campbell. [2] On 30 April 2003, the President convened a hearing at the Supreme Court, Cameron Street, Launceston, Tasmania, before myself, to commence on Monday 5 May 2003 at 11.30am. At the request of the applicant the hearing was adjourned until 26 May 2003. Subsequently, at the request of the parties it was adjourned sine die. On 27 August 2004, the applicant requested that the matter be relisted. A hearing was conducted in Launceston on Monday 13 September 2004. [3] Mr G Courtney appeared on behalf of the applicant union. No appearance was entered on behalf of the respondent employer. BACKGROUND [4] This application concerns the dismissal of two employees who were dismissed from their employment in April 2003 at the same time as a number of other employees and, it is claimed, in identical circumstances. The Commission as currently constituted heard a dispute relating to seventeen of the other employees in Matter T10797 of 2003. The circumstances are set out in detail in a decision dated 1 October 2003. That hearing involved nine hearing days over a period of five months, resulting in a finding that the employees the subject of that decision had been unfairly dismissed. The Commission ordered that Blue Ribbon Products Pty Ltd (Blue Ribbon) and Newemploy reinstate the seventeen employees to their previously held positions, and:
[5] The decision in T10797 was the subject of an appeal by Newemploy and Blue Ribbon to the Supreme Court of Tasmania. His Honour Justice Blow determined that the Commissioner's decision was within jurisdiction. The decision of Justice Blow is now subject to an appeal by Blue Ribbon to a Full Bench of the Supreme Court of Tasmania, in respect of that part of the decision that ordered that Blue Ribbon reinstate the former employees. Newemploy has not appealed Justice Blow's decision. [6] Newemploy appealed the findings in T10797 to a Full Bench of this Commission, which heard the matter on 29 April 2004. In a decision published on 7 May 2004 (T11126 of 2003), the Full Bench said:
EVIDENCE [7] The applicant presented a number of documents, which established that Newemploy had been placed into voluntary Liquidation some two weeks after Justice Blow's decision. Newemploy had total assets of $816.00 and liabilities of $604,614.00.1 [8] Also presented was a letter dated 2 September 2004 from Jones Condon Scott, Chartered Accountant, as follows:
SUBMISSION [9] Mr Courtney submitted that the two employees the subject of this dispute were in identical circumstances to those employees previously dealt with by the Commission; by Justice Blow in the Supreme Court; and by the Full Bench of this Commission. Therefore, they should be treated identically. The transcript, the arguments advanced and the authorities in T10797 should be adopted for the purposes of the current proceedings. In the present case an order is sought against Newemploy only. FINDINGS [10] I accept Mr Courtney's submission that the situation in respect of the two employees the subject of this dispute is indistinguishable from the seventeen employees the subject of Matter T10797. For the purposes of this decision, I have taken into account the evidence, the arguments, the authorities and the decision in respect of that case. During that hearing the following exchange took place:
[11] This transcript indicates that what distinguishes these two employees from the previous seventeen was simply the fact that their application was filed at a later date. [12] For reasons outlined in my findings in T10797 of 2003 I find that the employees had a reasonable expectation of continuing employment; that there was no valid reason for the termination of their employment; and that they should be reinstated to their former positions with no loss of wages. The following order is in the terms sought by the union. ORDER I hereby order, pursuant to the provisions of section 31 of the Industrial Relations Act 1984, that Newemploy Pty Ltd, ACN 099 079 553 (In Liquidation) reinstate the employment arrangements that were in place immediately prior to 2 April 2003 in respect of the persons named below: Sandra Long FURTHER that Newemploy Pty Ltd pay to the employees the amount of wages they would have received from 2 April 2003 to the date of the implementation of these Orders, less any income from paid work performed during that period, such details to be confirmed by way of statutory declaration; and FURTHER that the terms of these orders be complied with by no later than the close of business on Friday 22 October 2004.
P C Shelley Appearances: Date and place of hearing: |