T11600
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Christopher Stuart Morrow and Hurricane Cleaning Services P/L
Industrial dispute - alleged unfair termination of employment - alleged breach of award - no valid reason for termination - breach of award found - Order issued REASONS FOR DECISION [1] On 21 July 2004, Christopher Stuart Morrow (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 an industrial dispute with Hurricane Cleaning Services P/L (the respondent), arising out of his alleged unfair termination of employment; and an alleged breach of award or registered agreement. [2] The President convened a hearing (conciliation conferences) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 22 September 2004, which was subsequently heard on 23 September 2004. The Commissioner convened a further hearing on 26 October 2004. [3] Mr RL Mecklenburgh, appeared for and on behalf of the applicant, and Mr K Jomantas for and on behalf of the respondent. [4] The applicant commenced employment with the respondent, on 7 of April 2004. The applicant is profoundly deaf and intellectually handicapped. He gained employment through the advocacy of Jobmatch. [5] The applicant alleges his employment was unfairly terminated on 1 June 2004, the day after he took a day off on sick leave. He had presented himself at his general practitioner's surgery seeking treatment for a knee ailment. [6] In a counter claim the respondent alleged the applicant abandoned his employment on or after 31 May 2004, by not returning to his place of employment within a reasonable time after his sick leave expired. [7] Witnesses for the applicant: Robert Maxwell Morrow [8] Witness for the Respondent: Kes Jomantas BACKGROUND [9] The applicant commenced employment with the respondent on 7 April, 2004. The applicant is profoundly deaf and intellectually handicapped and has difficulty communicating in general. [10] Mr Morrow gained employment through the advocacy of Jobmatch. Jobmatch is an agency that intercedes with prospective employers on behalf people with disabilities or impairments. [11] On 28 May 2004 the applicant, Mr Jomantas, Ms Harrod and Ms Diane Gerlach (the applicant's case Manager from Jobmatch) attended a work review meeting to discuss the applicant's progress. There were several outcomes from this review. [12] The first issue was, the respondent was experiencing progressive communication difficulties with the applicant; however, progress was acknowledged. [13] The second issue was around the applicant's application to his work, particularly with requests for time off at critical times to the business. Again the applicant, apparently, acknowledged this and confirmed he understood the requirements of the business. The final outcome of the review was Mr Jomantas's affirmation that he was keen to make the applicant's employment with the respondent a success. [14] On 31 May 2004, the applicant took time off to attend his General Practitioner, Dr McGlone, to seek treatment for a painful knee. The applicant claimed he had a Doctor's Certificate, however this was not produced. [15] Shortly after the applicant returned home from visiting the doctor, his neighbour, and surrogate carer, Mrs Norma Cornford, telephoned both Mr Jomantas, for the respondent, and Ms Gerlach of Jobmatch. Mrs Cornford claims she informed Mr Jomantas of the applicant's condition and proffered an opinion that the applicant's ailment may prevent him from returning to work on the Wednesday, which would be the 2 June 2004. [16] Mrs Cornford could not contact Ms Gerlach then, but Ms Gerlach did return the call the following day, Tuesday, 1 June 2004. Mrs Cornford asserts Ms Gerlach also asked her to pass on a message to the applicant that he would not be required at work on the Wednesday. [17] On 1 June 2004, Mr Burleigh, of Jobmatch, received a telephone call from Mr Jomantas. The facts surrounding the discussion are in dispute. Mr Burleigh asserts Mr Jomantas informed him the applicant's services were no longer required.
[18] And:
[19] Mr Jomantas, on the other hand, asserts he did not inform Mr Burleigh of the applicant's dismissal. Indeed, that Mr Burleigh misinterpreted the content of the conversation.
[20] Further:
[21] Mr Burleigh asserts he passed on the information he allegedly received from Mr Jomantas to Ms Gerlach. He asked Ms Gerlach, as the applicant's case manager, to inform Mr Morrow of his dismissal. [22] Mr Jomantas asserts the applicant abandoned his employment by not returning to work after his sick leave.
[23] At one point during questioning the applicant, through the interpreter, indicated he did not want the job.
[24] However, this assertion made by the applicant under cross-examination came after a period of confused statements about specific work, as well as his lack of clarity with timeframes. [25] In summing up, Mr Mecklenburgh, for the applicant, concedes lack of process with respect to Medical Certificates. However, he submitted notification to the employer regarding the applicant's absence on 31 May 2004 was adequate. Subsequent dismissal through Jobmatch was unfair. [26] Mr Jomantas summed up by reiterating the applicant had abandoned his employment by not turning up to work after his sick leave. He asserts he did not dismiss the applicant through Jobmatch. He concedes he was notified of the applicant's medical condition on the 31 May 2004. He did concede he had a conversation with Mr Burleigh on 1 June 2004 regarding the applicant. FINDINGS [27] I must acknowledge the contribution of Ms Priscilla Young, who interpreted for the applicant. She was patient, very clear in her responses and instructive where necessary from a technical perspective. It appeared she interpreted the applicant's words, the intent and emotions attached to them, faithfully. [28] The successful management of employees is not an easy task, particularly for small businesses. Managing employees who may have some form of disability demands even more focus. Mr Jomantas, for the respondent, certainly showed a willingness to work with the applicant and Jobmatch in making the applicant's appointment a success. [29] Indeed, Ms Harrod, the General Manager of Jobmatch, commented in evidence:
[30] The applicant claimed to have been suffering from an injured knee. On 31 May 2004, he attended Dr McGlone. The applicant's informal agent, Mrs Cornford, asserts she informed both Mr Jomantas and Ms Gerlach, of Jobmatch, of the applicant's situation. [31] Mr Jomantas spent considerable time challenging the "authority" of Mrs Cornford to represent the applicant. Eventually, Mr Jomantas conceded "someone" notified him of the applicant's medical situation on 31 May 2004. [32] I accept the action of Mrs Cornford, notifying the employers, as going part way to satisfying the applicant's obligation under the Cleaning and Property Services Award. [33] Clause 28 of the Cleaning and Property Services Award states, in part:
[34] There is some confusion with respect to the provision of a Medical Certificate. I accept that this was not an issue for Mr Jomantas. In his evidence Mr Jomantas states:
[35] Mr Burleigh asserts Mr Jomantas called him on 1 June 2004 and informed him Mr Morrow was no longer required. He subsequently passed on that information to the applicant's case-manager. Mr Jomantas denies having dismissed the applicant. He asserts Mr Burleigh misunderstood the conversation. Mr Jomantas insists Mr Burleigh passed on erroneous information attributed to a decision of Mr Jomantas. [36] Ms Harrod, Mr Burleigh's manager, insists he is a conscientious worker and could cite no evidence he had made mistakes, such as erroneously interpreting conversations in the time she worked with him. I find it inconceivable a person in Mr Burleigh's position would get such a critical message wrong. [37] The process of dismissing an employee remotely, by Mr Jomantas, was not a unique occurrence. Indeed, Mr Burleigh alleges he had a similar experienced with respect to the dismissal of another Jobmatch client, a Mr Wayne Brodribb by Mr Jomantas. Again, the notification was by telephone to a Jobmatch officer, not to the respondent's employee directly. I find this practice unreasonable. [38] In a business such as Mr Jomantas runs, it is understandable when an employee does not turn up for work it causes a great deal of inconvenience, much re-scheduling and appeasing clients. I accept Mr Burleigh's paraphrasing of his conversation with Mr Jomantas.
[39] Mr Jomantas asserts the applicant abandoned his employment by not contacting him for three weeks. Having been informed by an agent, whose role is to find work, that your employer has dismissed you, I find it quite understandable one would not rush back to that employer. This is more understandable if one is carrying a disability and unable to communicate adroitly. [40] Mr Jomantas claimed he tried to contact the applicant's agent during this three-week period. There was no evidence presented to substantiate this. [41] Mr Jomantas, in his summing up, cites the applicant clearly stated he did not want the job while giving evidence. Mr Mecklenburgh attempted to explain the applicant's thought process and emotional state, without much success. [42] Despite the skills and patience of an expert interpreter, the applicant became quite mixed up, and at one point referring to "a job cleaning windows" with which he couldn't cope. At another point, he wildly claimed he did not want to go back to work. [43] I cannot ascertain whether the applicant was referring to the "window cleaning" job or, indeed, his employment with the respondent, when he indicated "he did not want to go back". I acknowledge he was agitated during this time and I deem his evidence not to be reliable. [44] I deem the applicant did not abandon his employment with the respondent, but was unfairly dismissed by Mr Jomantas through the applicant's agent at Jobmatch on 1 June 2004. [45] I uphold the applicant's claim, that Hurricane Cleaning Services Pty Ltd unfairly dismissed Christopher Stuart Morrow. [46] I find that Hurricane Cleaning Services Pty Ltd, has breached the Cleaning and Property Services Award by withholding wages (26.5 hours). [47] I find that the respondent failed to give notice or wages in lieu of notice, and award one week's wages (10 hours) in lieu thereof. [48] I note Mr Mecklenburgh asserts he has not argued unjust or harsh termination, but that the applicant was summarily dismissed. [49] I believe this has been a very difficult situation for both the applicant and the respondent, Mr Jomantas. I accept Mr Jomantas tried to make the employment relationship work, but there was a point where it broke down. I believe the applicant's dismissal was not vindictive but arose through frustration. As such, due process was not followed. ORDER Pursuant to s.31 of the Industrial Relations Act 1984, I hereby Order that Hurricane Cleaning Services Pty Ltd pay to Christopher Stuart Morrow an amount of five hundred and eighty eight dollars ($588.00) in full settlement of application T11600 of 2004. Such payment to be made not later than 5.00 pm on Wednesday, 22 December 2004.
James P McAlpine Appearances: Date and place of hearing: 1 Transcript, para 663 |