TASMANIAN INDUSTRIAL COMMISSION

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

Samantha-Jo Lewis
(T11576 of 2004)

and

Patch's Variety

 

COMMISSIONER JP McALPINE

HOBART, 2 December 2004

Industrial dispute - alleged unfair termination of employment - alleged breach of award or registered agreement - reinstatement - Order issued

REASONS FOR DECISION

[1] On 2 July 2004, Samantha-Jo Lewis (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with Patch's Variety (the respondent) arising out of her alleged unfair termination of employment; and alleged breach of award or registered agreement.

[2] The respondent employed the applicant under a training agreement. Mission Australia was the registered training organization. Her employment commenced on 12 January 2004. She was engaged on a full time basis for 38 hours per week and intending to attain a Certificate 2 in Retail.

[3] On the 10 June 2004 the applicant asserted she was ill. She claims to have asked for and been granted permission to leave her place of employment before the end of her shift.

[4] The applicant asserts she went home to bed. She could only get a doctor's appointment on the next day, 11 June 2004.

[5] During the afternoon of the 10 June 2004, the applicant was telephoned by Mr Brown, who she claimed had given her permission to leave work, and informed that her employment had been terminated. The reason given for termination was that she, the applicant, had abandoned her employment by leaving work early without permission.

[6] The applicant attended her general practitioner on the 11 June 2004 and was given a Medical Certificate covering her absence from the 10^th to the 13^th of June 2004. She was diagnosed with tonsillitis.

[7] The applicant claimed she took the Medical Certificate to Patch's Variety on the 11 June 2004, but was not given the opportunity to submit it to management.

[8] Subsequently the applicant approached Mr S Durkin from the Office of Post Compulsory Education and Training to intercede on her behalf with her employer.

[9] The negotiations took place over a period of approximately three weeks from the date of dismissal. They proved fruitless and an application was made to this Commission.

EVIDENCE

[10] Evidence was taken from Samantha-Jo Lewis for herself and Mr PA Fruin for the respondent.

THRESHOLD MATTER

[11] The application was submitted to the Commission on 2 of July 2004, 22 days after the termination took place.

[12] Section 29 1(b) of the Industrial Relations Act 1984 states:

"An application for a hearing before a Commissioner in respect of an industrial dispute relating to termination of employment or severance pay relating to redundancy is to be made within 21 days after the date of termination or, if the Commissioner considers there to be exceptional circumstances, such further period as the Commissioner considers appropriate."

[13] Ms Butler, for the applicant, asserts that:

"... parties were making - on our part we were making every attempt to resolve the matter without having to bring it to the Industrial Commission ..."1

[14] The respondent did not challenge this assertion.

[15] Ms Butler also put forward the argument that Mr Fruin took some time to consider and provide a response to the applicant and Mr Durkin.

[16] Again, the respondent did not challenge this assertion.

[17] Ms Butler also asserts Mr Fruin:

"... got back in touch with them on the 22nd day after the termination. Samantha-Jo was in Mr Durkin's office because she hadn't heard back and so they had ended up contacting Mr Fruin themselves and at that time Mr Durkin assisted Samantha-Jo to lodge the application electronically."2

[18] Mr Fruin, for the respondent, submitted that the discussions between Mr Durkin and Mr P Fruin senior resulted in a request for a Medical Certificate to cover the period the applicant was off work.

"... because at that time nobody knew why she was off."3

[19] Mr Fruin also alleged there were anomalies with the Medical Certificate which was:

"... provided to Mr Paul Fruin senior at some time in July."4

[20] Mr Fruin cited:

"... there was a recent case before Commissioner Abey whereby he set out the details of what he felt to be exceptional circumstances ..."5

[21] Mr Fruin does not elaborate on which decision of the Commissioner he refers. I have reviewed the decisions for the Stephen John Streets v Murtrans Pty Ltd6 and Stephen Izard v R G Simons as Trustee for R G Simmons Family Trust trading as T & H Investments cases.

[22] In the two decisions of Abey C, Stephen John Streets v Murtrans Pty Ltd7 and Stephen Izard v R G Simons as Trustee for R G Simmons Family Trust trading as T & H Investments, both address lack of knowledge of the law, which is not an issue in this case. In the matter of Stephen Izard v R G Simons as Trustee for R G Simmons Family Trust trading as T & H Investments, the point of contention is the applicant's attempt to have further matters considered beyond the original application, again not an issue in this case.

[23] The matter before me is quite different from the recent authorities alluded to by Mr Fruin. In this case the respondent was the principal cause of the delayed submission due to his own procrastination. This fact was not challenged. As a result of the negotiations breaking down, the applicant immediately filed an application by the quickest means available, electronically.

[24] I find the applicant took reasonable means to resolve the issue, with support. The applicant had a reasonable expectation the decision of the respondent may have been reversed by virtue of her having a Medical Certificate and participating in a training agreement. On being notified of the breakdown in negotiations, the applicant's agent applied immediately to the Commission, under s.29, by the quickest means available to them.

[25] I find the applicant's reasoning for a late application satisfies the "exceptional circumstance" criteria.

[26] Extension of time is granted.

BACKGROUND

[27] On 10 June 2004, the applicant's employment was terminated by her employer Patch's Variety. The reason given to the applicant, which is not disputed, is that she had abandoned her employment by leaving her place of work earlier on that day without permission.

[28] The applicant asserted she was ill on the day in question and had sought and obtained permission to leave her place of employment before the end of her shift.

[29] The applicant gave evidence that she had informed Mr Fruin, the morning manager, on her arrival of feeling unwell and of her desire to go home.

"... and I went into see Paul Fruin junior and asked if he needed me that day because I was unwell and he said he didn't have any staff to cover so I was needed so I started work at 10 o'clock ...8"

[30] The applicant further asserts she spoke to and was given permission to leave by Mr Brown the afternoon manager.

"... as the afternoon manager and I asked him at half past 12 if I could go home at 2 because ... and he said, "We will see what happens," and then at a quarter to 2 he come up to the front counter where I was working at the time and I said, "I am going home in 15 minutes if that is all right with you," and he looked at me, nodded his head and kept going with what he was doing ..."9

[31] Supporting the assertion, she cited:

"... I sung out to Leon across an aisle sort of thing and informed him I was going home and he said, "Okay, ..."10

[32] In his evidence, Paul Anthony Fruin denies the applicant informed him she was feeling unwell or that she intended to leave.

[33] The respondent, during the earlier conference, informed the Commission that Mr Brown claimed he was also not aware of the applicant's condition, or of her leaving her place of work. Mr Brown, however, was not offered as a witness by the respondent

[34] The respondent has put significant weight on their understanding of the medical certificate, produced by Ms Lewis, as being flawed.

"... It was then that it was discovered that the certificate had been backdated and the matter was reported to the Medical Council of Tasmania and as a result of that a complaint has been lodged with the Medical Council of Tasmania."11

[35] As a consequence of this understanding, Mr Fruin senior would not accept the Medical Certificate as valid.

[36] Ms Butler for the applicant asserts:

"... Mr Fruin refused to accept said doctor certificate ... on the basis that it was fraudulent because the doctor put the wrong date ..."12

[37] The respondent painted the picture of an employee who had a poor attendance record at work and was unreliable. In his cross-examination, the respondent attempted to gain reinforcement of his expressed opinion of the applicant's alleged poor attendance. Unsuccessfully.

"... Had you ever asked the manager for time off before? - On different occasions when I had been ill, yes ...13"

[38] And:

"Did you ever have time off without a doctor's certificate? - No, not that I am aware of. As far as I know I have provided doctor's certificates for every time I had off."14

"Were there not times you didn't get paid because you didn't provide a doctor's certificate? - No, there were days that I asked to have off unpaid that I was given - yes."15

[39] And again:

"Did you ever receive any warnings about the time you took off? - No, I didn't receive warnings about the time I took off ..."16

[40] In his evidence, Mr PA Fruin supported the contention the applicant had a poor attendance record:

"During that time was her attendance at work good? - No."17

"... There was quite a few days where she was late, turning up 20 minutes, half an hour late with no excuse."18

"... It was probably four, five times, just when I was there."19

"... there were times where she didn't show up on the weekends."20

"Were the other times that she was actually off without pay? About how many? Can you remember in that time that she was with you? - In the six weeks that I was there probably three and a half days.21"

[41] However under cross examination by Ms Butler, Mr Fruin was less sure of his facts when challenged about the applicant having obtained permission to have a Saturday off, referred to before, from Mrs Jenny Fruin.

"In fact you don't know whether Samantha-Jo had organised to have that day off or not? - No, but Samantha ..."22

[42] Mr M Fruin asserted that the applicant breached her contract of employment by leaving work without permission and, as such, forfeited her training contract.

[43] Ms Butler, on the other hand, asserted that the training contract, and therefore the contract of employment, can only be terminated in accordance with the Vocational Education and Training Act 1994.

[44] The National Training Wage (Tasmanian private Sector) Award, in Clause 10(c)(iv), states:

"The employment of a trainee shall not be terminated other than in accordance with the provisions of the Vocational Education and Training Act 1994."

[45] The Vocational Education and Training Act 1994, Clause 42 (1), states:

"A training agreement may be cancelled- (a) by the parties to the agreement with the approval of the Training Agreements Committee."

[46] This Act is not clear as to whether it requires both parties to agree to a cancellation or only one.

[47] The Act is also silent on the conditions under which a trainee may be dismissed from their employment.

[48] The Vocational Education and Training Act 1994, Clause 68, offers a process whereby disputes may be heard:

"(1) A party to a training agreement ...... may apply to the Training Agreements Committee to hear and determine any dispute."

[49] The Tasmanian Training Agreements Committee Policies state:

"Policy 6

Termination of Employment
Termination of employment of apprentice/trainee requires compliance with the terms and conditions of:
the training agreement
relevant industrial arrangements

Approval
In all circumstances, cancellation will not take effect until approval is granted by TTAC or it's delegate."

[50] Contained within the Samantha-Jo Lewis and Patch's Variety Training Agreement, at Part C:

"The Employer Must:

notify the appropriate State/Territory government department or agency and the Registered Training Organisation within five normal working days if the training Contract has become jeopardised or broken ..."

[51] And further:

"Both Parties agree to:

the Training Contract expires when any of the following occur:

------

the Apprentice/Trainee ceases to be employed by the employer and following application to and acceptance of the relevant State/Territory government department or agency, where necessary."

[52] Ms Butler asserted the applicant had suffered loss through a breach of the award, in that the respondent had failed to offer her 38-hours per week on a continuous basis.

[53] In his letter of 29 October 2004, Mr M Fruin confirmed that the respondent would reimburse the applicant for those weeks she received 37.5 hours instead of 38 hours pay between the 12 January and 9 June 2004.

AUTHORITIES

[54] Stephen John Streets v Murtrans Pty Ltd and Stephen Izard v R G Simons as Trustee for R G Simmons Family Trust trading as T & H Investments.

FINDINGS

[55] In the first instance I will deal with the matter before me as it is impacted upon by the Industrial Relations Act 1984.

[56] The dispute hinges on the issue surrounding the nature of applicant's departure from her place of work on 10 June 2004.

[57] There are two aspects that must be dealt with initially. Firstly, the applicant asserts that due to the circumstances surrounding her visit to Patch's Variety on the day after she was dismissed, she was not given the opportunity to present her Medical Certificate to the owner.

[58] Her evidence shows the manager to whom she spoke was only prepared to reiterate his discourse of the previous day in confirming her dismissal.

[59] The evidence presented regarding the applicant's visit to Patch's Variety on the 11 June 2004 was not challenged by the respondent.

[60] I consider the applicant's treatment on the 11 June 2004, at the Patch's Variety office, to be a denial of natural justice and inherently unfair, as well as preventing her from complying with the procedure required by the respondent and the Retail Trades Award with respect to the submission of Medical Certificates.

[61] The second matter relates to the refusal by the respondent to accept the Medical Certificate provided because of a perceived flaw in its make up.

[62] A business has every right to challenge a medical certificate. However, the benefit of the doubt must be given to the employee until proven otherwise, this was clearly not done. The make up of the certificate is beyond the control of the employee. The onus is on the prescribing practitioner to ensure the certificate truly reflects the situation.

[63] I find the absolute refusal by the respondent to accept the Medical Certificate where an alternative action is available, is unreasonable and unfair to the employee.

[64] The Retail Trades Award is quite clear on the requirements of an employee who claims or is intending to claim sick leave in both these situations.

[65] Clause 32(a) of the Retail Trades Award states:

"(ii) he shall, as soon as possible and where practicable within one hour of the commencement of the employees normal working day, inform the employer of his inability to attend for work, and as far as may be practicable, state the nature of the illness or injury and the estimated duration of absence;

(iii) he shall prove to the satisfaction of the employer (or in the event of a dispute, the Industrial Commission), that he was unable on account of such illness or injury to attend for work on the day or days for which the sick leave is claimed;"

[66] Only at a later date was there the opportunity for the applicant to present the Medical Certificate.

[67] Throughout the proceedings the respondent attempted to depict the applicant as unreliable, exhibiting poor attendance and somewhat recalcitrant. There is evidence of the respondent's emphasis in the wording of the written warnings.

[68] The assertions regarding the applicant's time keeping, reliability and poor attendance by the respondent met with rebuttals from the applicant. The evidence given by the respondent's witness, Mr PA Fruin has been clearly proven to be inaccurate during cross-examination.

[69] Indeed the time sheets presented in evidence by the respondent as a record of the applicant's poor time keeping and attendance failed to confirm that assertion.

[70] Eighteen out of twenty two time sheets were provided. A nineteenth was provided, but the date does not correlate with the others. These show the applicant was late on two, possibly three occasions. They show she left early, due to sickness, on two occasions; two short weeks, which appear to be approved time off; and, seven full days equivalent on sick leave.

[71] On the evidence before me there is no justification in using the applicant's attendance record as a cumulative catalyst for dismissal.

[72] Her manager via a telephone communication dismissed the applicant. Both parties presented this fact. The applicant was not given the opportunity to explain her actions. She was told to pick up her Separation Certificate the following day.

[73] On the following day, 11 June 2004, the applicant attended her place of employment, sought but failed to meet the owner, was confronted by the manager who had dismissed her and who would not listen to any explanation of her absence. The manager claimed to be executing the directives of a "higher authority". The respondent refuted none of the evidence.

[74] I find the applicant's treatment by the respondent to have been harsh, unreasonable and unfair.

[75] Natural justice for any employee should involve counseling for misdemeanors, written warnings for persistent misdemeanors or major failings and finally, dismissal if the employee, after a concerted effort and support from the management does not reach the standards required of the business.

[76] For whatever reason, elements of the management of Patch's Variety sought to have the applicant terminated. Evidence of this is the excessive reaction of providing two written warnings; one for each occasion she was late. The written warning for being the intermediary in accepting a gift on behalf of her manager, and the fanciful and comprehensively unreliable evidence of Mr Fruin with regard to the applicant's attendance record, the offhand dismissal process and the vindictive and unsubstantiated content of the Separation Certificate.

[77] With regards to the obligations of the respondent under the following authorities of:

it is abundantly clear the process of dismissing a trainee from their employment, for whatever reason must follow the process clearly prescribed in the Act, which is supported by the other authorities.

[78] The respondent has clearly failed to comply with the intent and the letter of the Vocational Education and Training Act 1994.

[79] I deem the dismissal of Samantha-Jo Lewis by Patches Variety to be both harsh and unfair under the Industrial Relations Act 1984.

[80] I also find that Patch's Variety have failed to comply with their obligations contained within Vocational Education and Training Act 1994 and the Training Agreement between themselves and Samantha-Jo Lewis.

ORDER

I hereby order that Samantha-Jo Lewis be reinstated immediately to continue her training with Patch's Variety. I also order that all wages and accrued benefits due to her from and including the 10 June 2004 until the day she re-commences work with Patch's Variety, be paid in full.

 

James P McAlpine
COMMISSIONER

Appearances:
Ms D Butler, The Launceston Community Legal Centre Inc., for Samantha-Jo Lewis
Mr M Fruin for Patch's Variety

Date and place of hearing:
2004
August 6
October 13
Launceston

1 Transcript para 57
2 Transcript para 56
3 Transcript para 61
4 Transcript para 62
5 Transcript para 64
6 Decision T11432 of 2004
7 Decision T11432 of 2004
8 Transcript, para 103
9 Transcript, para 103
10 Transcript, para 103
11 Transcript, para 62
12 Transcript, para 54
13 Transcript, para 155
14 Transcript, para 156
15 Transcript, para 157
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17 Transcript, para 295
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19 Transcript, para 297
20 Transcript, para 298
21 Transcript, para 304
22 Transcript, para 348