TASMANIAN INDUSTRIAL COMMISSION

DECISION APPEALED - SEE T11445

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

Garth Eric Walker
(T11296 of 2004)

and

Omega Computer Industries Pty Ltd

 

COMMISSIONER T J ABEY

HOBART, 6 April 2004

Industrial dispute - alleged breach of award - severance pay - genuine redundancy - payment in lieu of notice - unpaid wages - order issued

REASONS FOR DECISION

[1] On 28 January 2004, Garth Eric Walker (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 Omega Computer Industries Pty Ltd arising out of the alleged breach of an award and severance pay in respect to termination of employment as a result of redundancy.

[2] The matter was listed for a conciliation conference/hearing on 31 March 2004. The applicant was self-represented. Mr C Cunningham, of Simmons Wolfhagen, Barristers & Solicitors, appeared with Mr B Donaghey and Mr C Hilyer, for the employer.

[3] The conciliation conference failed to find a resolution to the dispute. In accordance with an understanding reached at the time of initial listing, the matter proceeded immediately to hearing.

[4] In terms of procedure the applicant made submissions from the bar table and was subject to cross-examination under oath. Mr Barry Donaghey gave sworn evidence for the employer.

[5] Mr Walker commenced employment as a sales representative on 23 December 2002. This was a full-time position with a salary of $30000 pa.

[6] On 13 January 2004 he was called to a meeting with management and was told he was to be made redundant forthwith. According to Mr Walker he was given no forewarning that redundancy was a possibility nor was there any discussion as to possible alternatives. Mr Walker left employment that same day.

[7] It would appear that at the time of termination, Mr Walker was offered payment based on the following:

[8] The above offer was made on the basis the payment would be entirely offset by the extinguishment of a debt owed by Mr Walker to the employer. That is, no actual payment would be made to Mr Walker.

[9] Mr Walker declined to sign a Deed of Release giving effect to the above and notified the Commission of a dispute.

[10] Mr Cunningham acknowledged that amounts identified in 1. and 2. above were properly owed to Mr Walker.

[11] Mr Donaghey gave evidence relating to alleged excessive use of a company-provided mobile phone and improper reimbursement of entertainment expenses by Mr Walker during his period of employment.

[12] Mr Cunningham noted the Commission policy of treating each redundancy case on its merits and submitted that, if the Commission was of a mind to grant a redundancy payment, it should be discounted to take into account the above factors.

[13] I do not accept this submission. The evidence in relation to the alleged performance/behavioural shortcomings was inconclusive. In any event the evidence relates to issues that should properly be dealt with by the management process at the time they occurred. There is no justification to retrospectively seek to discount a severance payment for redundancy based on these factors.

[14] There is no suggestion that this is anything other than a genuine redundancy, which on the face of it, was handled in a somewhat summary and insensitive manner by the employer. There was clearly an absence of consultation, consideration of alternatives, assistance with finding another position or extended notice which might have allowed Mr Walker to seek alternative employment from a position of strength.

[15] In the circumstances I have no hesitation in awarding a redundancy severance payment of two weeks' pay in addition to the two weeks' payment in lieu of notice.

[16] The matter of any debt owed by Mr Walker to the Company is not within the jurisdiction of this Commission.

ORDER

Pursuant to Section 31 of the Industrial Relations Act 1984, I hereby order that Omega Computer Industries Pty Ltd, 7-9 Maurice Court, Nunawading, Victoria 3131 pay to Garth Eric Walker, Unit 4, 1 McAulay Road, Sandy Bay, Tasmania 7005, the following:

1. A redundancy payment (which includes payment in lieu of notice) of two thousand, three hundred and eight dollars ($2308); and

2. An amount of $230.80 representing wages owed.

Such payment is to be made not later than 5.00pm on Friday 16 April 2004.

 

Tim Abey
COMMISSIONER

Appearances:
Mr G E Walker representing himself
Mr C Cunningham, of Simmons Wolfhagen, Barristers & Solicitors, with Mr B Donaghey and Mr C Hilyer, for Omega Computer Industries Pty Ltd

Date and Place of Hearing:
2004
March 31
Hobart