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T11275

TASMANIAN INDUSTRIAL COMMISSION

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

Tennille Joanne Avadon
(T11275 of 2004)

and

Classic Video Pty Ltd trading as Video City

 

COMMISSIONER T J ABEY

HOBART, 7 June 2004

Industrial dispute - alleged unfair termination of employment - no repudiation of contract found - alleged breach of award - waiting time - annual leave - order issued

REASONS FOR DECISION

[1] On 8 January 2004, Tennille Joanne Avadon (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 Classic Video Pty Ltd arising out of the alleged unfair termination of her employment and an alleged breach of award.

[2] The matter was listed for a hearing (conciliation conference) on 21 January 2004. Appearances: Ms E Beecroft, of the Working Women's Centre, for the applicant. Mr T Ewing, for the employer. The matter was further listed for hearing on 5 and 6 May 2004. Mr R Benson, solicitor, sought and was granted leave to appear for the applicant. Mr P Gourlay, with Ms J Thomas, of the Tasmanian Chamber of Commerce and Industry Limited, with Mr T Ewing, appeared for the employer.

[3] The particulars of the claim in this application were identified by Mr Benson as follows:

  • Payment of accrued annual leave
  • Payment of annual leave loading
  • Underpayment of wages (not proceeded with)
  • Payment of notice
  • Compensation for unfair dismissal
  • Payment for waiting time

[4] The respondent conceded that accrued annual leave was owed, but was dependent on the date of termination being identified. All other claims were denied.

Evidence

[5] During the hearing evidence was taken from the following witnesses:

  • Tennille Joanne Avadon, the applicant.
  • Cathy Leeanne Elliott, a former library attendant of Video City.
  • Noel Keith Holloway, father of the applicant.
  • Terrence Gilbert Ewing, Managing Director of Video City.
  • Margaret Joan Mellick, Personal Assistant to Mr Ewing (evidence taken via telephone hook-up).
  • Keryn Natasha Leitz, Debt Recovery Manager for the past eight months, formerly a library attendant for seven years.
  • Anita Ellen Bourn, Bookkeeper and Receptionist.
  • Karl Thomas Jones, Financial Controller for the past 12 months.

Events prior to 16 December 2003

[6] Miss Avadon commenced work as a library attendant on 7 April 2003. Shortly thereafter she took on additional duties involving the training and rostering of transaction handlers.

[7] In early October 2003 Mr Ewing offered Miss Avadon a substantially expanded and changed role. This new role included the hiring and training of staff, rostering of staff and implementing Australian Workplace Agreements (AWAs). A memorandum dated 14 October 2003 from the Managing Director to all libraries notes as follows:1

"I am pleased to announce the appointment of Tennile Avadon (DST) to the position of Roster Supervisor (South). Tennile will work with me to implement a number of changes to the rostering system and when that is settled the position will be extended to include comprehensive training of staff."

[8] A wage increase of $50pw together with partial reimbursement of mobile phone expenses accompanied these revised duties.

[9] Initially Miss Avadon performed this new role in conjunction with her duties as a library attendant in the Davey St library. However Miss Avadon found the dual role to be exhausting and unsustainable. Following discussions with Mr Ewing she moved to the Support Office on a full-time basis with effect from 5 November 2003.

[10] Thereafter Miss Avadon worked predominantly in the Support Office. However on at least two occasions she covered absent staff for short periods in a library environment.

[11] Mr Ewing described his relationship with Miss Avadon as "excellent" and said that he was happy with her work.

Events on 16 December 2003

[12] Miss Avadon's evidence was as follows:2

"Ms Avadon, can you please explain how your employment actually came to an end?---It was the week of 13th, 14th, 15th from about 15 December, that week, my last week in the office, I think it was either the Monday, or Tuesday of that week that Mr Ewing was - or asked me to come and see him in his office. We were talking about normal rostering and things that were going on. I remember that I was asking him for probably the tenth, or twelfth time to address my wages; what was going on? He kept promising me that he would talk to me about looking seriously at what I was being paid because I said "I'm being underpaid", and I was being paid less than I was working as a library attendant, though I was doing so much more responsibility and so many more hours. There was a problem with a few employees. Those that were full-time staff on AWAs, they, a few of them it was found in the filing cabinet, did not have their AWA present in their file. When I questioned a couple of them Mr Ewing had asked me to contact everybody, go through the whole filing cabinet, check who didn't have AWAs, etcetera. Many of them were unsigned. It had been missed and they were obviously being held to their AWA agreement but there was no evidence of that in their file. So he asked me to go through, check everyone who didn't have one present and call them and get them in to sign them again. A couple of them were upset about doing that. They were long-time staff members and they told me: was I aware that there was a different AWA for five staff members who signed it together on one day in Mr Ewing's presence, and amendments were made in writing on that AWA. I said I had no idea that had happened. They said, "I want you to know that we are different, the five of us, because we have changes such as we do get penalty rates for holidays that we work where others on AWAs don't. When I questioned Mr Ewing about these five agreements that morning of the Monday, or the Tuesday he said to me that as far as he was concerned he didn't know anything about it. He said, "If you can show me those documents then I guess they exist, don't they?" He wouldn't look at me. He was upset with me. I was in there for about 15 minutes, we were doing - talking about some other rostering and he was very upset with me. I went back to my office and an hour-and-a-half later he asked to see me again. He said to me to get a pen and paper, he wanted me to make some notes, and he just said to me, "I'm going to make some changes. He said, "As of Monday", I think it was 22 December as I remember, he said, "Belinda Clifford", who was working at Davey Street, "she will be on opens at Moonah. Tennille Avadon, opens Davey Street." And I just sat there, I was shocked, and I said, "I'm sorry?" and he said, "Yes", he said, "you're going back to the library", and I said, "Why is that, Terry?" He said, "It's coming up to a busy time." He said, "I want you to go back into the library."

And that's all I knew. I didn't have a time for how long that would be for; I was stunned. My first question was, "Do I have to work Christmas Day?" because I had a very sick grandparent and we'd made arrangements to have lunch and he said, "I'll think about it." And I said, "Oh, Terry", I said, "please, can I have Christmas Day off?" and he said, "All right, you can have Christmas Day." I said, "The other staff members in here have all got the week off at least, maybe two I've heard", and he said, "Well", he said, "you should have checked with me first then, shouldn't you, before you made arrangements for Christmas." And that was it. I was upset. I walked into my office and I was crying and Anita Bourn came in to see me and saw that I was pretty upset."

[13] Under cross-examination Miss Avadon described the conduct of the first meeting as follows:3

"It was conducted as normal. Mr Ewing was just straight to the point discussing matters. I can't remember exactly what was happening with staff on that day, but it was a normal report to discuss any issues that were going on. The moment that I talked about the AWA issue was uptight because we had quite a few people who were reluctant to re-sign and I said "We can't, in fact, force them to in this situation." He said to me that if they weren't going to sign then I had to tell them that they'd lose their job, "That's it. You're gone." Particularly, the transaction handlers. I was upset about that and said, "You can't do that." He started getting uptight and when I asked him about these five agreements which are something important and I said, "You've never told me there were amended agreements here", he became very irate, sat there, and would not look at me, was talking to me, but would not look me in the face for about the next 15 minutes, at all."

[14] Miss Avadon said that Mr Ewing had given no indication whether the move back to the library was permanent or temporary.4 She said:5

"Now, I think you said in evidence-in-chief that there was no indication as to whether that was a permanent, or temporary move?---No.

You presumed, due to Mr Ewing's reaction, that, and what you had talked about prior to, that it was more of a longer-term arrangement?---Yes.

But did you know that for sure?---No, I didn't. The reason I assumed that was that Mr Ewing, on many occasions, takes retaliation of anyone who doesn't do what he wants, in a nasty fashion always, so that's my assumption.

Okay, let us just deal with the issue with yourself, Ms Avadon. So you weren't sure? Did - was there any reason then why you didn't seek clarification of that?---Because of the way he was speaking to me, because he was playing with me about Christmas Day and had shocked me and stunned me so much."

[15] Miss Avadon said that Mr Ewing had not told her that the move was to cover a temporary shortfall in staff.6

[16] Ms Leitz said she spoke with Miss Avadon shortly after the meeting. Miss Avadon told her she did not know how long the relocation to the library was to be for.7 Mr Jones said that in a conversation the following day, he formed the view that Miss Avadon was not aware that the library role was for a period of three weeks.

[17] Mr Ewing's evidence was that there was only one meeting with Miss Avadon on 16 December. He said the purpose of the meeting was to discuss roster arrangements for the Christmas/New Year period. Miss Avadon had prepared a roster, which they jointly reviewed. He said:8

"Well, my examination of that I actually discovered we would be short staffed over the Christmas/New Year period. I was satisfied with that. I informed Tennille that I would like her to work at the Davey Street library for the three week period starting on 22nd - Monday, 22 December until Monday, 5 January where she would come back to the office.

So that request of yours, Mr Ewing, came directly from an examination of the rosters in place at that time; is that your evidence?---Yes.

And you made that request at that meeting at that time on the 16th?---I would say it was more a directive than a request."

[18] On two occasions Mr Ewing said he could not recall whether AWAs were discussed at the meeting.9 Later he categorically denied that they were discussed:10

"Well, I want to put to you that you had a discussion with Ms Avadon about that and that it was a heated discussion because issues had arisen as to AWAs being misplaced and allegations being made by employees that AWAs had in fact been changed?---Okay. You can put whatever you like to me for a start, but I can only tell you what took place in that office. Thirdly, to the best of my knowledge AWAs were not discussed in that meeting. Fourthly, if there were issues pertaining to the AWA they were not discussed at that meeting, it might have been discussed prior, in the prior week or the prior day, but that was not the subject of the meeting in the office.

I want to suggest to you that later that day, perhaps between one to two hours after the meeting as we will call it, that you had another conversation with Ms Avadon during which you advised her that she would be returning to the Davey Street library as a library attendant?---I don't know how many times I've got to say this, but I'll say it again. In the meeting that we had she was advised that she would be going to Davey Street for a three week period. The only issue during that meeting was whether she would work on Christmas Day or not. That matter was resolved later in the afternoon. Unbeknown to me as I discovered in January, yes, we did have issues concerning the AWA, but they were not communicated to me by Tennille in that meeting or at any other time prior to her departure from work."

[19] Mr Ewing denied that he got angry or raised his voice and described the meeting as "amicable". He said that the move back to the library was to overcome an operational problem and denied that it was retribution for raising the AWA issue.11

[20] Ms Mellick occupied an office which adjoined Mr Ewing's office. She said she was in her office when Miss Avadon and Mr Ewing had a meeting on 16 December. Her evidence was:12

"Can you recall any of the conversation that took place in that meeting?---I did hear bits and pieces of the conversation. Do you want to know what sorts of things I heard?

Yes, please?---Well, it was regarding the staffing of the library before Christmas, and I did hear Mr Ewing say to Tennille he needed people on the ground, and would Tennille work in Davey Street for three weeks over Christmas."

[21] Ms Mellick said that she did not hear any reference to AWAs, nor were there any "harsh words".

Events Following 16 December 2003

[22] Miss Avadon went to work on 17 December despite feeling ill. She had a conversation with Mr Jones who advised her "not to do anything rash". Mr Jones said that he told her the move was only for three weeks.13

[23] During that day Miss Avadon consulted with the Working Women's Centre, who wrote to Mr Ewing that same day as follows:14

"I act on behalf of Ms Tennille Avadon. Tennille approached our Centre after being informed by you that she was to begin work as a library attended (sic) at the Davey St Video City store on Monday 22nd December.

We consider the manner in which you have handled this matter to be unacceptable. You should be aware that if you require Tennille to work solely as a library attendant you will be effectively dismissing her from her current position as Human Resources Manager. As you have not communicated reasons for such a dismissal or given effective notice, Tennille would have grounds to pursue this matter as an unfair termination with the Tasmanian Industrial Commission.

If you require Tennille to simply assist in the video library at any stage, for example over the busy Christmas period, you should specify the exact period when this will take place. During this time you must continue to pay Tennille at the higher rate for the duration of her time assisting in the video library, in accordance with clause 20 of the Miscellaneous Workers Award.

As Tennille has not been provided with a letter of appointment or Job Description for her position as HR Manager, it is unclear whether assisting as a video attendant is within her range of duties as HR manager. However given her duties to date, it does not seem appropriate.

We are also concerned by the fact that Tennille has not been provided particulars regarding her current level of employment, rate of pay or the hours that she is required to work. These details should have been provided to her upon appointment.

The poor communication and handling of these matters has caused Tennille substantial stress, and as a result she has decided to take some time off work. Consequently she will not available (sic) to commence work as a video attendant on Monday 22nd December as instructed by you.

In order to allow Tennille to return to the workplace, it is imperative that these issues are resolved quickly. If possible please contact either me to discuss these matters by midday Tuesday 23rd December. If you are unable to contact me before this time, I will not be available until Monday 5th January 2004.

Yours sincerely

Esther Beecroft
Industrial Officer"

[24] Mr Ewing said that he did not read this letter until 27 or 28 December. He did not respond because Ms Beecroft had indicated that she was unavailable after 23 December.

[25] Miss Avadon consulted her doctor on the evening of 17 December. She was provided with a medical certificate stating that, due to a medical condition, Miss Avadon was unable to attend work from 18/12/03 to 5/01/04.15

[26] On 18 December Miss Avadon wrote to Mr Ewing in the following terms:16

"I am writing to inform you that I am currently unable to attend work and have attached my medical certificate with this notification for you.

I also called the support office today to notify the office of my absence.

I have completed my time sheet for the fortnight ending December 21st, 2003 and have asked my father to deliver it to the office tomorrow morning so that it is available for Karl to process as usual."

[27] Mr Holloway confirmed that he delivered the letter, medical certificate and time sheet to the support office on the morning of 18 December.

[28] Mr Ewing said he saw the medical certificate on 19 December. He was concerned about the length of the absence and the difficulties her absence would cause in an operational sense. Mr Ewing said he attempted to contact Miss Avadon on her mobile phone on several occasions but his calls were not returned. He also attempted to contact Miss Avadon's doctor.

[29] Mr Ewing said that the sick leave was not paid because he "questioned the validity of the certificate being issued by the doctor".

[30] Mr Ewing said he expected Miss Avadon to return to work on 5 January 2004. However a further medical certificate covering the period 5/01/04 to 8/01/04 was submitted.

[31] Mr Ewing said he was contacted by Ms Beecroft from the Working Women's Centre on 6 January 2004. He said that he told Ms Beecroft that he would not discuss matters pertaining to Miss Avadon with third parties.

[32] On 8 January 2004 the Working Women's Centre lodged an application with the Commission, which ultimately gave rise to this hearing.

[33] Subsequently Miss Avadon submitted claims for worker's compensation covering the period 8/01/04 to 8/02/04.

The Time Sheet

[34] A critical part of the evidence relates to the time sheet submitted by Miss Avadon for the pay period ending 24 December 2004.

[35] The employer has two time sheets in place, one for award employees and one for employees covered by AWAs. Miss Avadon was required to complete an award time sheet.

[36] Miss Avadon said that for the previous pay period ending 10 December she submitted an AWA time sheet, as there were no award time sheets available in the support office. This she said had been specifically approved by Mr Jones, the financial controller and responsible for pay-roll matters. Mr Jones confirmed that this was the case, describing it as a "common sense approach".

[37] The time sheet submitted by Miss Avadon, via Mr Holloway, on 17 December was also an AWA time sheet. Miss Avadon put a hand written note on the sheet as follows:

"No 'Award' time sheet could be located in support office."

[38] Mr Ewing's evidence in relation to the time sheet issue was as follows:17

"Now, did you receive the time sheet that has been referred to in evidence in December? Did you personally receive it?---No. No, look I was unaware of the - I was unaware of the time sheet having been received.

...

And at the conciliation conference on 22 January was the matter of payments discussed including the payment of wages?---Yes.

And what did you do as a consequence of that, following the conference I am talking about?---I'm just - after the conference I went back - I think that was on a Thursday, I went back to the office, I arranged for a time sheet and a letter to be sent to Tennille - or was it sent to Ms Beecroft? Look, I can't recall, but a letter went out with a time sheet asking her to complete it. We - yes, and the time sheet came back I think on the Monday week, in fact it took a week to get back and then that week was the pay week and we processed that with the pays.

...

You said before that, I think it was after the initial conference in the Commission that a new time sheet was sent out to Ms Avadon; was that correct?---Yes.

And the new time sheet was sent out because you did not have in your possession a completed time sheet from her; is that correct?---That's correct.

So the reason wasn't that she had completed an AWA time sheet, it was simply that you claimed not to have in your possession a completed time sheet full stop?---That's correct.

...

Perhaps if that document could be returned please. Mr Ewing, I take it that the failure to pay wages for the period of work from 10 December until 17 December 2003 was simply because you claim that the time sheet went missing?---No, I haven't claimed that.

Well, why was the time sheet not processed and the wages not paid?---I don't process the time sheets, to my knowledge I cannot recall anything concerning the pay sheet. When it became apparent to me in the hearing here I acted upon that, sent her the time sheet, she filled it in and she was subsequently paid.

...

MR GOURLAY: Mr Ewing, you were asked then in cross-examination by my friend about the payment that Ms Avadon eventually received in February in terms of her wages. Without going over old ground, can I put it to you this way: if a time sheet had of been received and if it had of been the correct time sheet for the period in question, would have Ms Avadon been paid on the next available pay day?---Yes.

So was the payment deliberately withheld due to some sort of, I will have to use the term, spiteful or vindictive direction on your part?---I don't know how many times I've got to say this, but I considered my relationship with Tennille was good and solid. There was no spite in anything that I did or directed to Tennille or anything pertaining to her employment with Video City.

So there was no reason to withhold payment - - -?---No.

- - other than the issue of the time sheet?---That's correct.

...

Okay. Now, in terms of the time sheet itself, you have given evidence to say that - I think you said that you haven't seen the time sheet. I again ask you can you recall whether you have seen the time sheet in question, or a time sheet that evidence has been led was dropped off at your premises during December?---Yes, I have. I have subsequently seen that time sheet, yes.

And when did you see that time sheet, can you recall approximately?---Where are we? May - sometime in April I think.

Some time in April. Again I am asking you to the best of your recollection. So it possibly could have been in someone else's possession in your organisation, I think as my friend put to you?---I actually don't possess the time sheets, they go somewhere else.

And can you recall discussing the time sheet at around the December period with anyone in your office?---No. It has actually subsequently became an issue - it is an issue obviously, but no - no.

...

THE COMMISSIONER: Mr Ewing, I am not sure if I heard you correctly, did you say that some time in April you sighted the time sheet which we have heard evidence from Mr Holloway this morning was submitted to your office in - - -?---Yes.

Would you care to enlarge on that, what were the circumstances that you sighted that?---I think I got a call from Paul Gourlay asking - I think I got a call from Paul Gourlay asking about the original time sheets, the letter to me, if it had a time sheet in it and I said, "No, there was no time sheet." But I actually decided to turn the place upside down to see if a time sheet had come in.

And what did you find?---We found the time sheet. You know - yes."

[39] Miss Avadon said that following the conciliation conference she received a time sheet in the mail:18

"Okay. Following the conciliation conference on 22 January did you receive anything in the mail from the employer?---I don't know what date it was but I received a time-sheet with a note from Margaret asking me to "Complete this, please" and that's all there was in the envelope.

So a note from Margaret Merrick, who works in the office?---Just a posted note, yes.

Right, and you, I presume, you completed that and sent that back to the employer?---Yes, with a note at the top that I hoped that they didn't lose this one also."

[40] Mr Jones said he received the time sheet on Thursday 18 December. He said that he processed it notwithstanding that it was an AWA time sheet. He said:19

"What do you mean by processed it?---I put it into the attache accounting payroll system, which was going to sit there until the next pay run is done, and all the pays go through, and we were going to pay them on the Monday, due to Christmas being on a Wednesday, from memory, or Thursday. I can't remember.

Okay?---But it was - we were going to post them on the Monday with all the other time sheets. But I did actually process that into the accounting system as soon as I received it.

...

Okay. And did you have any conversations with Mr Ewing about that time sheet, that you received around the 18th?---No, I didn't have any conversations with him at the time. Somewhere - I can honestly remember where - somewhere along the line, Terry had seen the time sheet with the entered stamp on it, which means entered into the accounting system, and he had said he had seen Ms Avadon's note on top of the time sheet, which actually said, "Could not locate an award time sheet in the office." And I was shocked by the comment really, because I wasn't approached in the first instance, and there are definitely award time sheets in the office, and - - - 

...

Okay. And so Mr Ewing saw it, and then what conversation ensued from there?---I was advised and instructed not to process that, as it was on the incorrect time sheet. And then I put it on top of my filing cabinet, where by disputed pays go to until someone calls up.

...

Okay. So was there any instruction given not to pay on the basis of some sort of a spiteful act, if I can put it that way?---Absolutely not. Absolutely not.

It was purely on the basis of not filling out the correct time sheet?---That's correct.

...

And I want to be clear as to this. He specifically instructed you not to go ahead and pay that time sheet?---Correct.

And that was at that time on or before the 23rd, so that that time sheet didn't go through?---Correct.

...

Can I turn to the time sheets just for one final issue? Given that you processed the previous AWA time sheet, and Ms Avadon was paid, do you think Ms Avadon would have expected that the next AWA time sheet would also have been processed and paid?---I can't comment on that, I'm afraid. Yes, I don't know what her expectation would have been.

Do you think it would have been reasonable to expect that the next one would have been paid?---Correct. From my own point of view, if that was me, yes, I probably would have.

...

Right?---So it was a separate time sheet. I processed it separately, but it still went - it was going to be processed with the batch that would have been paid on the Tuesday and put into people's bank on the Wednesday.

Right. So did Mr Ewing see it as part of the batch, can you recall?---No. He didn't. He saw it in isolation from the batch.

But - sorry, I will rephrase. Sorry, how did Mr Ewing come to check it or see it then?---It must have been on my desk somewhere, or - I cannot recall. I honestly cannot recall."

Witness Credit

[41] There were three key witnesses in this matter.

[42] Miss Avadon impressed as an honest witness who gave her evidence in a straightforward consistent manner. Her evidence was not seriously challenged under cross-examination.

[43] I reach the same conclusion in respect of Mr Jones.

[44] Regrettably I am unable to reach the same conclusion in relation to Mr Ewing.

[45] Mr Ewing said:

  • That he had no knowledge of the time sheet at the time it was lodged;
  • That the first time he sighted it was in April 2004;
  • That the reason for non-payment of wages was the absence of a time sheet, not the fact that the wrong form had been completed;
  • That a new time sheet was forwarded following the conciliation conference because the company did not have a completed time sheet in its possession.

[46] It is absolutely clear that Mr Ewing personally intervened in the pay process, withheld the completed time sheet, and as a consequence, ensured that payment was not made. It is a reasonable assumption that Mr Ewing's disquiet about the medical certificate submitted by Miss Avadon was the motivation behind this action.

[47] The issue of the non-payment of wages was raised in detail in the s.29 notification lodged on 8 January 2004. It is inconceivable that Mr Ewing's role in this issue could have escaped his mind in such a short period of time. One can reasonably assume that his subsequent action of sending out a new time sheet was to create a diversion from what actually happened.

[48] I have reached the inevitable conclusion that Mr Ewing has knowingly and deliberately misled the Commission. Given this adverse finding as to witness credit, to the extent of any inconsistency between the evidence of Mr Ewing and any other witness, the evidence of the other witness is to be preferred.

When Did the Employment Contract End?

[49] The applicant contends that she was effectively dismissed on 16 December 2004 when Mr Ewing instructed her to return to library duties. I am unable to conclude that the contract of employment came to an end at that point.

[50] Miss Avadon worked as normal on 17 December. She sought advice from the Working Women's Centre who in turn wrote to Mr Ewing that same day. This letter sought clarification of a number of issues including the matter of whether the change in duties was temporary or permanent. The letter foreshadowed that Miss Avadon would be taking some time off work as a consequence of stress.

[51] Medical certificates were submitted covering the period 18/12/03 to 8/01/04. The s.29 application was lodged on 8 January.

[52] It seems to me that there can be no valid reason for claiming sick leave after a date that has seen the end of the employment contract. This can be contrasted with a claim for worker's compensation, which may be lodged after the date of termination.

[53] Miss Avadon did not at any stage resign nor did Mr Ewing expressly terminate her services. The validity or otherwise of the medical certificates is not at issue. The fact that they were lodged coupled with the actions of the Working Women's Centre points to a continuing employment relationship at least until 8 January 2004. It was at that point, through the actions of the parties, that the contract of employment could reasonably be seen as coming to an end. I find accordingly.

Award Coverage

[54] The question of award coverage is relevant to the claim for Waiting Time, and to a lesser extent, the claim that Miss Avadon was unfairly terminated.

[55] It is clear from the evidence that Miss Avadon was initially engaged under the terms of the Miscellaneous Workers Award and was never told by her employer that she was subject to another award. However irrespective of what someone is told, award coverage is a matter of legal fact.

[56] Mr Gourlay contends that, following the change in duties on 10 October 2003 the relevant award coverage changed from the Miscellaneous Workers Award [the MW award] to the Clerical and Administrative Employees (Private Sector) Award [the C & A award].

[57] Both these awards are occupation awards and hence the only consideration is the work performed by the employee.

[58] Clause 3 - Scope of the C & A award reads:

"This award is established in respect of private sector clerical and/or administrative employees who shall include persons engaged in a clerical and/or administrative capacity and, without limiting the generality of the foregoing, all persons engaged in the occupation of shorthand writers and typists and/or on any machine designed to perform or assist in the performance of clerical or administrative functions.

This award shall not apply to state employees or any employee covered by any other award of the Tasmanian Industrial Commission.

In relation to trainees, this award shall have effect as if it was included in Schedule A of the National Training Wage (Tasmanian Private Sector) Award."

[59] It follows that the first consideration is whether or not the MW award applies to the work performed by Miss Avadon.

[60] Clause 2 - Scope of the MW award relevantly refers to the occupation of "library attendant".

[61] Clause 7 - Definitions includes the following references under "Tasks/Duties/Responsibilities" for a "Library Supervisor Level 4":

  • "training and induction of Level 1 to 3 employees;
  • supervision of Level 1 to 3 employees."

[62] Whilst Miss Avadon agreed that her role was administrative in nature, it is clear that a major part of her duties involved training and rostering of staff.20 It is also clear from the evidence that Miss Avadon was expected to work in the libraries from time to time to cover absenteeism.

[63] I note also that at the time of the payday in question (24/12/03) Miss Avadon had been instructed to work in a library environment for an extended period of time.

[64] I conclude therefore that the duties performed by Miss Avadon fit comfortably within the collective definitions for Library Attendant and Library Supervisor in the Miscellaneous Workers Award. It follows that the C & A Award does not have application. I find accordingly.

Alleged Unfair Termination of Employment

[65] Mr Benson submitted that the change in duties as announced by Mr Ewing on 16 December amounted to a demotion. He said that such a significant variation constituted a repudiation of the contract of employment, a repudiation that Miss Avadon accepted through her actions in not returning to work in the library.

[66] Mr Gourlay contended that Miss Avadon was directed to cover a short-term staff shortage in the library, a position she was trained and competent to perform. There was no reduction in salary. This did not amount to a demotion.

[67] Mr Gourlay relied on a number of authorities including Advertiser Newspaper Pty Ltd v IRC of SA21; Mohazab v Dick Smith Electronics Pty Ltd22; Avery v Air Design Pty Ltd23.

[68] In Carrigan v Darwin City Council24 von Doussa J noted the judgement in Woods' case in which Browne-Wilkinson J said:

"In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84. To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the Tribunal's function is to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it: see BAC Ltd v Austin [1978] IRLR 332 and Post Office v Roberts [1980] IRLR 347. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed: Post Office v Roberts (supra) paragraph 50."

[69] I accept the evidence of Miss Avadon as to the events of 16 December 2003. Whatever was said by Mr Ewing, there can be no doubt that Miss Avadon left the second meeting uncertain as to whether it was a temporary or permanent change in duties.

[70] I also accept that the AWA issue was raised by Miss Avadon and that Mr Ewing responded in the manner she described.

[71] I am unable to conclude with confidence whether Mr Ewing's decision to make the change was an act of retribution or would have happened in any event. I do accept however that Miss Avadon, not unreasonably, perceived it to be in the former category. Mr Ewing volunteered that it was a direction, not a request. In the circumstances such an approach is hardly likely to engender loyalty and co-operation.

[72] I accept that Miss Avadon felt unsettled, perhaps even intimidated by Mr Ewing's behaviour. Perhaps this was the explanation as to why she did not return his phone calls.

[73] I am however of the view that, in the right circumstances, a short term transfer to cover a staffing shortfall is not so far removed from what could be reasonably contemplated as to constitute a repudiation of the contract of employment. Miss Avadon was clearly trained and competent to perform this role, had covered absenteeism in the past and would suffer no salary reduction.

[74] I am satisfied that Mr Jones probably clarified the temporary nature of the change when he spoke with Miss Avadon on 17 December. Even if he did not, there were still avenues open to Miss Avadon to seek clarification.

[75] I can understand why the chain of events would have disturbed Miss Avadon. I am unable to conclude however, that she was in a situation whereby she had no reasonable alternative but to resign.

[76] That aspect of the application alleging an unfair termination is dismissed. I so Order.

Waiting Time

[77] Clause 23 of the award reads:

"The employer shall specify a time and place at which wages and other moneys are to be paid to the employees other than employees engaged for less than one week. The time so specified shall not be more than 48 hours from the time when such wages become due and shall not be later than Thursday in the week. Any employee who is not paid at the time so specified shall be deemed to be working during the time he is kept waiting. Casual employees (as defined) shall be paid within one hour of the termination of employment.

Payment may be made weekly or fortnightly as agreed between the employer and the employee.

Such payment shall be in cash, or by cheque or by direct bank deposit into an account nominated by the employee. The employer may determine the method of payment.

Where payment is to be made by cheque or direct bank deposit and such cheque is not met on presentation or such bank deposit is not made at the time specified, otherwise than in circumstances beyond the control of the employer waiting time shall be paid."

[78] Miss Avadon was due to be paid wages on 24 December 2003. Such wages were not paid until 3 February 2004.

[79] There was no suggestion that the non-payment was a consequence of circumstances beyond the control of the employer. To the contrary, the non-payment was the result of a deliberate act of the employer, who clearly knew what the outcome would be.

[80] In the circumstances there can be no doubt that waiting time is payable pursuant to Clause 23 of the award. The question to be determined is the calculation of waiting time.

[81] In an interpretation of the Commonwealth Works and Services (Northern Territory) Award25 the Full Bench of the Commonwealth Industrial Court held that if an employer paid to an employee on the normal pay day an amount which was a bona fide payment of all moneys believed to be due to the employee, then the employer was not liable to pay "waiting time" even though the sum paid was not the precise sum representing the total amount of all moneys which were in fact due. A similar conclusion was reached by Wright J in Emmerton v Terry26.

[82] In the instant case no payment at all was made. Hence the above authorities are not relevant.

[83] Earlier judgements supported the concept of waiting time being paid for time actually spent waiting at the work site. In Cranford-Webster v McFarlane, Mayo J said:27

... 'waiting time' seems to me inappropriate to the present circumstances. I think it means time which the employee spends at the employer's establishment actually waiting for his pay, and the penalty reckoned at so much per quarter-hour is intended to compensate him for possible loss of other work. I do not agree that it contemplated anything so extravagant as the claim put forward ...

...

'Waiting time' would mean in its ordinary sense the time that an employee spent and wasted in loitering about whilst payment of wages to him was not forthcoming. The appropriate meaning to be given to 'waiting' would seem to be staying in expectation, stopping, or remaining stationary, or inactive till the happening of the event, holding over departure."

[84] A similar finding is found in a decision of Connor CC in Re Darling Harbour Development Project Industrial Agreement.28

[85] The persuasiveness of these judgements has been overtaken by events given the modern trend towards payment by electronic funds transfer direct to a nominated bank account. The award in question clearly contemplates this payment method whereby waiting on the employer's premises for payment of wages is simply not an issue.

[86] In T5029 of 1992 Westwood P was asked to interpret the "Payment of Wages" clause in the Miscellaneous Workers (Public Sector) Award. In all material respects, the wording in this clause is identical to the clause under consideration in the instant matter.

[87] The applicant in T5029 [the ALHMWU] contended that the provisions relating to "waiting time":

  • "Should be interpreted to mean that all time spent waiting for wages to be paid should be deemed to be time spent working;
  • That such time should be paid as if the work continued for all such time;
  • That time, other than time spent working, should be paid at overtime rates; and
  • That elapsed time after the contract of employment ceases should be counted as waiting time for the purposes of Clause 23."

[88] In his finding Westwood P said:

"A third interpretation, as proposed by the union, could be that all elapsed time between the specified time and the actual time of payment should be compensated as if the employee was physically at work for all that time. Whether or not overtime rates would apply would depend on the hours already worked on pay day up until the actual time of payment and, perhaps, on other award provisions. I think this interpretation properly reflects the meaning of the words used.

However, although Clause 23 requires casual employees to be paid their wages within one hour of the termination of employment, the clause does not indicate when an employee who is not a casual should be paid on termination of employment. The clause is silent on that point. The clause simply states that "any employee who is not paid" at the specified time is entitled to be deemed working.

Consequently, in my opinion, which is contrary to that of the union, once an employee, other than a casual, has finished work and left the workplace for the last time the contract of employment has ended and the employee cannot earn ongoing entitlements under the award. From that time, therefore, the sentence which commences with the words "Any employee" cannot apply to an employee whose employment has been terminated other than a casual whose circumstances are provided for in the next sentence of the clause. Award entitlements which have accrued during the course of employment are protected. However, with the exception of casuals, the award does not bestow on persons who are no longer employees the right to be paid waiting time."

[89] Given the facts of that particular case the President declined to make a declaration and his decision is not therefore binding. It is however a persuasive finding, and absent a more detailed argument, is one I intend to follow in this case.

[90] I conclude that "waiting time" is payable from the end of Miss Avadon's normal ceasing time on 24 December 2003 until the normal ceasing time on 8 January 2004. Payment shall be calculated as if Miss Avadon was physically at work for all that time. I have assumed that seven hours and 36 minutes has been worked on each day Monday to Friday excluding public holidays. This is to be paid at ordinary time. Overtime and other penalty rates will apply as applicable. Details of the calculation are shown in Appendix 1.

Annual Leave

[91] Clause 10(k) prescribes that proportionate annual leave is payable on termination calculated on the basis of 4/52 of a week's wages for each completed week of continuous service.

[92] Up until 8 January 2004, Miss Avadon had completed 39 weeks' service. This equates to a pro rata annual leave entitlement of $1613.00. In the circumstances of Miss Avadon's termination, the annual leave loading is not payable.

ORDER

Pursuant to Section 31 of the Industrial Relations Act 1984, I hereby order that Classic Video Pty Ltd trading as Video City, Level 1, 40 Melville Street, Hobart, Tasmania 7000, pay to Tennille Joanne Avadon, 679 Nelson Road, Mt Nelson, Tasmania 7007, an amount of:

(i) nine thousand six hundred and ninety seven dollars and ninety five cents ($9697.95) in respect of waiting time; and

(ii) one thousand six hundred and thirteen dollars ($1613.00) in respect of annual leave.

Such payments to be made not later than 5.00pm on 29 June 2004.

 

Tim Abey
COMMISSIONER

Appearances:
Ms E Beecroft, of the Working Women's Centre (22/1/04); Mr R Benson, solicitor, Ogilvie Jennings (5-6/5/04), for Miss T J Avadon
Mr P Gourlay, with Ms J Thomas, of the Tasmanian Chamber of Commerce and Industry Limited (5-6/5/04), with Mr T Ewing (22/1/04, 5-6/5/04), for Classic Video Pty Ltd trading as Video City

Date and Place of Hearing:
2004
January 21
May 5, 6

APPENDIX 1

CALCULATION OF WAITING TIME

   

$

24 December 2003 2 hours @ 1.5x @ $14.15ph

42.45

  6 hours @ 2x @ $14.15ph

169.80

   

212.25

     
25 December 2003 24 hours @ 2.5x @ $14.15ph

849.00

     
26 December 2003 24 hours @ 2.5x @ $14.15ph

849.00

     
27 December 2003 24 hours @ 2x @ $14.15ph

679.20

     
28 December 2003 24 hours x 2x @ $14.15ph

679.20

     
29 December 2003 7.6 hours @ $14.15ph

107.50

  2 hours @ 1.5x @ $14.15ph

42.45

  14.4 hours @ 2x @ $14.15ph

407.50

   

557.45

     
30 December 2003 7.6 hours $14.15ph

107.50

  2 hours x 1.5x @ $14.15ph

42.45

  14.4 hours @ 2x @ $14.15ph

407.50

   

557.45

     
31 December 2003 7.6 hours @ $14.15ph

107.50

  2 hours @ 1.5x @ $14.15ph

42.45

  14.4 hours @ 2x @ $14.15ph

407.50

   

557.45

     
1 January 2004 24 hours @ 2.5x @ $14.15ph

849.00

     
2 January 2004 7.6 hours @ $14.15ph

107.50

  2 hours @ 1.5x @ $14.15ph

42.45

  14.4 hours @ 2x @ $14.15ph

407.50

   

557.45

     
3 January 2004 24 hours @ 2x @ $14.15ph

679.20

     
4 January 2004 24 hours @ 2x @ $14.15ph

679.20

     
5 January 2004 7.6 hours @ $14.15ph

107.50

  2 hours @ 1.5x @ $14.15ph

42.45

  14.4 hours @ 2x @ $14.15ph

407.50

   

557.45

     
6 January 2004 7.6 hours @ $14.15ph

107.50

  2 hours @ 1.5x @ $14.15ph

42.45

  14.4 hours @ 2x @ $14.15ph

407.50

   

557.45

     
     
7 January 2004 7.6 hours @ $14.15ph

107.50

  2 hours @ 1.5x @ $14.15ph

42.45

  14.4 hours @ 2x @ $14.15ph

407.50

   

557.45

     
8 January 2004 2 hours @ 1.5x @ $14.15ph

42.45

  6 hours @ 2x @ $14.15ph

169.80

  7.6 hours @ 14.15ph

107.50

   

319.75

     
Total  

$9697.95

1 Exhibit A1
2 Transcript PN 129
3 Transcript PN 230
4 Transcript PN 131
5 Transcript PN 254 to 257
6 Transcript PN 272
7 Transcript PN 911
8 Transcript PN 604 to 606
9 Transcript PN 593 and 623
10 Transcript PN 715, 716
11 Transcript PN 613
12 Transcript PN 865, 866
13 Transcript PN 1105
14 Exhibit R3
15 Exhibit R4
16 Exhibit A4
17 Transcript PNs 637, 642-643, 692-694, 776-777, 793-796, 803-806, 836-838
18 Transcript PN 371 to 373
19 Transcript PN 1156 and following
20 Exhibit A1
21 [1999] 74 SASR 240
22 [1995] 62 IR 200
23 [1996] 67 IR 95
24 [1997] IRC of A No. 101/97
25 [1960] 1 FLR 336
26 [1994] 53 IR 180
27 [1947] SASR 162
28 [1988] 27 IR 375