T11685
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Elizabeth Margaret Hingston and Dimension Property Services Australia Pty Ltd
Industrial dispute - alleged unfair termination - severance pay - alleged breach of award - minimum period of engagement - Saturday work - notice - order REASONS FOR DECISION [1] On 27 August 2004, Elizabeth Margaret Hingston (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 Dimension Property Services Australia Pty Ltd arising out of the alleged unfair termination of her employment, severance pay and alleged breach of the Cleaning and Property Services Award. [2] This matter was listed for Hearing (Conciliation Conference) on 22 September 2004. The applicant appeared for herself, together with her husband, Mr Greg Hingston. [3] The employer was not represented and no explanation had been provided to the Commission as to this non-attendance. Having satisfied myself that the employer had been properly notified (by Notice of Hearing dated 31 August 2004 and again by NOH dated 17 September changing the hearing time by two hours) I decided to hear the applicant's case. [4] Following the hearing the Commission forwarded the transcript to the employer under cover of letter dated 4 October 2004. This correspondence advised that the Commission would take into account any written submission lodged prior to 20 October 2004. A written submission was received from the employer on 20 October and has been taken into account in this decision, as has the right of reply from the applicant, dated 28 October 2004. [5] Mrs Hingston commenced employment as a cleaner on 17 March 2002. Her employment was terminated by the employer on 6 August 2004. The applicant contends that she was unfairly terminated and that the employer was in breach of the Award for the duration of her employment. [6] The relevant award is the Cleaning and Property Services Award. Alleged Award Breach [7] Mrs Hingston was employed as a part-time Property Service Employee Grade 1.The relevant award rate at the time of termination was $16.09 per hour. [8] Mrs Hingston was engaged to clean the Sheffield branch of a bank. This task was performed in the late afternoon after closing. Initially she was engaged to work 30 minutes per day, five days per week. [9] In September 2003 the employer reduced the shift to fifteen minutes per day, although according to Mrs Hingston, she was still required to perform the same amount of work. [10] The applicant asserts that the employer was in breach of the award in that the minimum period of engagement requirements were not observed. There is a consequential flow on application in relation to annual leave payments. [11] The applicant also asserts that she should have been paid penalty rates for shifts performed on Saturday morning. Minimum Period of Engagement: [12] Clause 22(d) of the award reads:
[13] Mrs Hingston said she had not signed any agreement to work less than two hours per engagement. As to any agreement with the union, Mrs Hingston said:1
[14] The employer in a written submission said:
[15] Many, perhaps most awards provide minimum periods of engagement for casual and part-time employees. It could be argued that the prescription in this award is less onerous than many other awards, which prescribe minimum engagement periods of three, sometimes four hours. [16] The employer provided no evidence of any agreement with the union, which would allow for a lesser period of engagement, even though the issue was clearly "flagged" during Mrs Hingston's submissions. [17] In essence the employer contends that by working the hours as directed, Mrs Hingston agreed to the arrangement. Even if that was the case, such agreement must be read in the context of s.85 of the Act:
[18] It is simply not open to an employer and an employee to agree to something that confers a lesser benefit than that prescribed by the award. [19] It may well be contended that the circumstances of this particular cleaning contract render a requirement for a two hour minimum to be unduly onerous on the employer. If that was the case there was an avenue open to the employer to regularise a more acceptable alternative. There is no evidence that the employer even approached the union, let alone enter into an agreement pursuant to Clause 22(d) of the Award. [20] In the circumstances I have no alternative but to find that the two-hour minimum must apply on each occasion Mrs Hingston was required to perform cleaning duties in the bank. [21] In relation to annual leave, Clause 9(e) reads:
[22] It follows that payment for annual leave should be based on the two hour minimum period of engagement, as this is what Mrs Hingston should have been paid had she not been on leave during the relevant period. [23] The calculations relevant to the amount necessary to remedy this breach, including the consequential breach of the annual leave clause, are shown at Appendix 1. Saturday Work: [24] It is clear that the employer required the cleaning work to be performed each day, Monday to Friday, after the bank had closed. [25] Mrs Hingston, for her own personal reasons, chose to perform the Friday evening shift on Saturday morning. It would seem that the employer accepted this arrangement, or at least allowed it to continue. [26] Mrs Hingston claims that she should have been paid the additional penalty rate applicable to Saturday work. [27] I acknowledge and respect the personal reasons Mrs Hingston had for not working on Friday evening. It would however be unfair for the employer to be faced with additional costs, simply as a consequence of facilitating Mrs Hingston's preferred working arrangements. [28] This aspect of the claim is rejected. Alleged Unfair Termination of Employment [29] Mrs Hingston explained the circumstances of the termination as follows:2
[30] The employer sent a letter of termination as follows:
[31] Mrs Hingston said she had never been warned by the employer as to her standard of work. [32] Mrs Hingston acknowledged that on occasions a back injury prevented her from doing the vacuuming. On these occasions a member of the bank staff would do the vacuuming. One such occasion occurred just prior to termination:3
[33] The employer in a written submission said:
Finding [34] The fact that a client requires/requests a contractor to replace an employee is not, in itself, a valid reason for termination. The employer is still obliged to observe the normal standards of fairness in relation to a termination of employment. This includes the existence of a valid reason for termination and observance of procedural fairness. [35] In this case there is insufficient evidence before the Commission to make a finding, one way or the other, as to whether or not there was an unfair termination. I refer in particular as to the nature and cause of Mrs Hingston's back injury, her capacity to perform the work, counselling, rehabilitation and/or alternative work methods. [36] In the circumstances I refrain from making any finding in relation to the termination. [37] In accordance with Clause 14, Mrs Hingston should have been given one week's notice of termination. She was in effect given four days' notice. It follows that there is one day of two hours still outstanding. ORDER Pursuant to s.31 of the Industrial relations Act 1984, I hereby order that Dimension Property Services Australia Pty Ltd, 67 Inkerman Street, St Kilda, Victoria 3182 pay to Mrs Elizabeth Margaret Hingston, fifteen thousand four hundred and sixty nine dollars and seventy cents ($15469.70), such payment to be made not later than 4.00pm on Friday 17 December 2004.
Tim Abey Appearances: Date and Place of Hearing: Appendix 1
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