TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T11844

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

Sally-Anne Shade
(T11683 of 2004)

and

Willow Court Training and Construction Pty Ltd

 

COMMISSIONER T J ABEY

HOBART, 15 November 2004

Industrial dispute - alleged unfair termination of employment - jurisdiction - employment relationship found - procedural fairness denied - no valid reason for termination - order

REASONS FOR DECISION

[1] On 25 August 2004, Sally-Anne Shade (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 Willow Court Training and Construction Pty Ltd arising out of the alleged unfair termination of her employment.

[2] This matter was listed for a hearing (conciliation conference) on 14 September 2004, and a further conference by way of audio-link was held on 30 September 2004. Subsequently the matter was listed for hearing on 5, 7 and 14 October 2004. Ms Shade was self-represented. Mr C Green, solicitor, sought and was granted leave to appear on behalf of the employer, with Mr D Bromfield.

Background

[3] The employer, Willow Court Training and Construction Pty Ltd, is redeveloping the Willow Court hospital site at New Norfolk into a complex embracing accommodation, restaurants and retirement units. Mrs Barbara Cavanough is the principal shareholder of the company.

[4] The development was described as a $20m project extending over five or more years.

[5] Mrs Cavanough is a financial adviser specialising in self-managed superannuation funds. Whilst resident in Hobart, Mrs Cavanough usually spent most of the working week in Sydney attending to her financial services business. This included sourcing investment funds for the Willow Court project. Typically Mrs Cavanough would spend one day each week, usually Monday, on the New Norfolk site.

[6] In the November/December 2003 period Ms Shade was engaged to work for the employer. The major difficulty with this case was the profound conflict in the evidence on almost any issue of substance. This included status (i.e. whether employee or contractor), terms of engagement and duties. It was, however, common ground that Ms Shade was responsible for the administration of the site, although the extent of this role was in dispute.

[7] On 5 August 2004 Ms Shade's services were summarily terminated. She was given a letter, which read:1

"Sally Shade

You are hereby given notice that you are immediately dismissed from any association with this and any other company associated with Willow Court Training and Construction for misconduct.

Yours sincerely
Barbara Cavanaugh
Director"

[8] The applicant contends that she was unfairly terminated. Initially Ms Shade sought reinstatement. However during closing submissions she conceded that this was impracticable, and sought appropriate compensation.

[9] Mr Green submitted that it was open to the Commission to find that Ms Shade was in fact a "contractor", and thus beyond the jurisdiction of the Commission. Leaving aside this preliminary question, Mr Green conceded that there were some procedural shortcomings associated with the manner of termination. Nonetheless, there was a valid reason or reasons for termination and the totality of the circumstances outweighed any case for compensation based on absence of procedural fairness.

Evidence

[10] Evidence was taken from the following witnesses:

• Sally Anne Shade, the applicant.
• Barbara Cavanough, majority shareholder of Willow Court Training and Construction Pty Ltd.
• David Bruce Bromfield, initially engaged by the employer to undertake an audit role, and subsequently appointed General Manager of the company following the termination of Ms Shade.
• Matti Virkotie, building contractor, responsible for the supervision of the construction site.
• Kevin Shane Glass, accountant, appointed by the company following the termination of Ms Shade.

Procedural Fairness

[11] Ms Shade said that at no stage had she been warned that her employment may have been in jeopardy, or that her work procedures required change. She was not provided with any additional training.

[12] On 5 August 2004 Ms Shade was called to a meeting with Mrs Cavanough. Also present were Mrs Cavanough's husband and son, and Mr Bromfield. Ms Shade's recollection of what transpired is a follows:2

"Can you tell the Commission what Mrs Cavanough-Adams said to you in relation to your employment coming to an end? Effectively can you outline what she said to you?---I walked into the room and Mrs Cavanough-Adams said, "Your employment is terminated effective immediately," and I asked her for a reason and she said that she had been advised that she didn't have to give me a reason.

Did you press her at all to give you a reason?---Yes, I did.

What was her response?---Her response was she was advised that she didn't have to give me a reason."

[13] Mrs Cavanough said she had received advice that Ms Shade's behaviour amounted to misconduct and there was no requirement to give warnings. On the reasons for termination Mrs Cavanough said:3

"... we had been fighting for about five, six weeks over these issues and the issues over the builders and so rather than - once I asked her to leave I didn't want to make a bigger issue out of it and she said, "Well, start telling me all the reasons," and I said, "Don't you think we have fought enough. You know what has gone on in the last - things haven't happened. Just leave it at that." As we had already covered these issues for weeks, not getting accounts, I left it at that."

[14] Ms Shade then prepared from the computer records a statement of entitlements owed. This was examined by Mr Bromfield and Mrs Cavanough. Subsequently Ms Shade was asked to sign a handwritten statement, which read:4

"I accept $8729.85 as full settlement of any money owing to me."

[15] Ms Shade was given a cheque and left the site.

Valid Reason for Termination

[16] The issues going to the question of whether there was a valid reason for termination can be divided into two categories.

[17] In the first category, which can be conveniently described under the heading of "terms of engagement", is a range of allegations, which, if proven, would amount to deceptive or fraudulent behaviour on Ms Shade's part.

[18] In the second category the allegations relate to performance issues. I deal with each category in turn.

Terms of Engagement:

[19] Ms Shade had been involved with the Willow Court site in one form or another since 1999. In November 2003 she was approached by Mrs Cavanough concerning certain work on the development project. Ms Shade said she discussed her charges with Mrs Cavanough and her husband Harold Adams and followed this up with a confirmatory e-mail as follows:5

"Barbara

Further to our recent conversation, I now confirm my charges as follows:

General set up administration etc $25.00 per hour
Training $35.00 per hour
Research, managerial $35.00 per hour

Facsimile - receive per page $1.00
- send per page $1.50
Travelling - per kilometre $0.60
Telephone at cost

As previously discussed having had a varied involvement with the Willow Court site over the last three years I am keen to continue to see the development of the site.

If you have any further queries please telephone me on 0418 556 398

Regards
Sally Shade"

[20] Mrs Cavanough denied that she ever received the e-mail. Further, a Statutory Declaration from Gizem Ertem was submitted.6 In summary Mr Ertem stated that he held a degree in computer engineering; that he had undertaken a thorough search of all possible computer and server sites and that there was no evidence that the above e-mail had been sent.

[21] Initially Ms Shade worked on a casual "as needs" basis. By e-mail dated 25 November to Mrs Cavanough, Ms Shade states:7

"Have been down to the site and met with LN, who presented me with his business card...stating he was Project Manager, and gave the impression he believes he's my boss.

Perhaps, with your guidance I prepare a staffing/employment structure pro-forma so people are aware of their positions, titles and who they are directly/indirectly responsible to. The staffing/employment structure could perhaps be handed out at the next meeting.

Could I organise a meeting between yourself, Rob Vincent, L, Matt, myself and any others which should be involved for sometime when you are next down. If you would suggest a suitable day and time."

[22] Ms Shade said that Mrs Cavanough then offered her the position as manager on a full-time basis. This was to take effect from 1 December 2004. She said:8

"Yes?---The salary was $35 an hour, with telephone and car. That was to be 40 a week. Soon after I had started as manager of Willow Court Training and Construction, Mrs Cavanough Adams asked me to terminate Mr LN who was project manager."

[23] On 1 December 2003 Ms Shade wrote to Mrs Cavanough in the following terms:9

"Further to our meeting I now confirm in writing I accept the full-time position as Manager effective 1^st December 2003.

I also confirm my hourly rate of $35.00 per hour given the fact I will be taking on a managerial/supervisory role. In addition I will require my travelling and mobile telephone expenses to be met.

Having been involved with the planning of this project for some 3 years I look forward to seeing the redevelopment and construction of the site over the next 5 years.

I look forward to working with you."

[24] Mrs Cavanough said that she did not receive this letter.

[25] Ms Shade said that following discussion with Mrs Cavanough, the per km vehicle allowance was subsequently changed to a flat rate of $174 per week.

[26] Mrs Cavanough's evidence in relation to these matters was as follows:10

"During your time that you dealt with Ms Shade - perhaps if I can start in the initial engagement - did you ever receive the e-mail of 14 November from Ms Shade?---No, I have never seen that e-mail.

And again did you receive a letter dated 1 December 2003 from Ms Shade?---No, and I am surprised if there was a letter on 1 December, it was a Monday, and Sally Shade said it was mailed well, she knows I am always in Hobart on the Monday so why wouldn't she hand it to me personally.

In relation to her engagement, what was your understanding of how she was to perform work for you?---Well, she told me she was wanting to stay on a consultancy basis because she had other clients and she offered to do it for $25 per hour inclusive.

Did Ms Shade discuss with you an increase in her hourly rate?---Never.

Did she discuss with you a change in her status?---Never.

Did she advise you or request an allowance for motor vehicle?---Never.

Did she discuss with you an allowance or the provision of a mobile telephone?---No."

[27] And later:11

"THE COMMISSIONER: Ms Cavanough, is it your evidence that Ms Shade was a contractor or an employee?---A contractor and a few other people are contractors as well. She was a contractor, Ian King was a contractor and Peter Rowe, the chef, was meant to be a contractor but she has put them all on a salary.

How did the amount of $25 an hour materialise?---That was a figure that she actually came up with.

Can you describe the circumstances?---Well, the accountant I was paying $26 an hour prior to Sally Shade. The accountant had his own car, his own phone and I was paying him $26 an hour."

...

"Yes. If we can just take it one at a time. Is it your evidence that $25 an hour has not changed at any stage?---At no stage."

...

"Her evidence I believe was that the contract - in inverted commas - was for 40 hours a week. Do you agree or disagree with that?---No, disagree.

So in your eyes what was it?---On an as-needs basis.

As-needs basis. And the travel time?---That was never discussed."

[28] Mrs Cavanough said she did not become aware of the $35 ph until after Ms Shade was terminated. However Mr Bromfield said he made Mrs Cavanough aware of the position on the morning of and prior to the termination of Ms Shade. He said he believed Mrs Cavanough was mistaken in her evidence as to the timing of this knowledge. I accept the evidence of Mr Bromfield.

Performance Issues:

[29] In closing submissions Mr Green summarised the performance related issues as follows:12

"I submit that the failure to pay the accounts, the failure to request funds in order to pay those accounts, the failure to do all things necessary to obtain a liquor licence and accommodation licence and builders' licences together with Ms Shade's demonstrable incapacity to perform the duties of her position and as a result putting at risk moneys of investors and the development itself, provides you with grounds to find that under those five headings there are grounds for the respondent to find that there was a valid reason to terminate employment."

[30] Ms Shade said that initially only a few people were on site. This grew rapidly during the first part of 2004 and peaked at 60 staff and contractors on site.

[31] In relation to the payment of accounts, Ms Shade said: ¹³

"As stated before, Mrs Cavanough Adams on several occasions since my employment with Willow Court Training and Construction has said that the property was going to be purchased. There were several financial problems - raising moneys - and Mrs Cavanough's other businesses needing moneys which were taken from Willow Court Training and Construction, which held up the purchase of these properties which should have been purchased some time before. That restricted income and cash flow, which was constantly a problem. We constantly had creditors ringing seeking moneys which were promised."

[32] And later:14

"What would you say if there was difficulty obtaining the necessary funding to pay accounts, what would you do?---What would I let - let the creditors know?

I am asking you what would you do? Would you let the creditors know?---Yes, absolutely.

Would you tell them or what type of response would you give to them?---Well, I can let them know when some funds were going to be coming in and just whatever Mrs Cavanough Adams told me where the funds are at and when they can be paid. I'd pass that, relay that message on.

So, would there be occasions where you simply ignored accounts?---No.

Would there be occasions where you ignored letters of demand?---No."

[33] Ms Shade said she prepared a document titled "Creditors - requiring payment soon". In explanation she said:15

"And what was the purpose of generating this document?---To pay some accounts which we had creditors continually ringing up asking for moneys for. I think at that time we probably owed some $300,000 in creditors. Barbara explained that she couldn't get the funds for that and she said, "Give me a list of what's really urgent," so I put that together from people who had been seeking moneys.

Right. Did it contain details of accounts that were outstanding?---It did.

Did it contain all details of accounts that remained outstanding?---This one here?

Yes?---No, it was only just the ones who were continually pressing for payment.

And why were creditors pressing for payment?---Because we didn't have the funds to pay them, because they were due and payable."

[34] On 12 July 2004 Ms Shade sent a memorandum to Mrs Cavanough which she described as a "payables summary". This memorandum read in part:16

"In conversations over the last three months you have advised me when I have requested funds on several occasions, until the purchase of the property goes through and further funds are sought, money is not readily available. You have asked me to only pay accounts, which are urgent. I have been doing this but creditors are becoming impatient."

[35] Cross-examined in relation to this document, Ms Shade said:17

"And you say that you were unable to pay these creditors?---I am, yes, unable to pay these creditors here? I was seeking funds to pay these creditors because we had other creditors that were to be paid as well, but these older creditors that were paying, but these were probably the most, the ones that were creating the most hassles.

Well, is it your evidence that you asked for funding to pay these creditors?---It is, yes.

And what was the response?---Well, I don't know how much came, ended up coming in for that amount but as I usually did I juggled, I didn't pay probably older accounts and paid these ones that were most playing up. Superannuation fund moneys and things didn't get paid if moneys didn't come and we had these creditors threatening to put our accounts on hold or works, the most important thing was to keep the project going and keep people in employment.

I put it to you that it was your responsibility to deal with the accounts and that you failed to deal with them adequately?---Well, I disagree with that. I say there wasn't sufficient funding.

I also put it to you that you failed to seek funding to pay the accounts?---I did seek funding on regular occasions and Mrs Cavanough Adams continued to say that, "Once the purchase was through," and as given in my evidence earlier, the purchase only went through in September which was after my termination and mortgages have taken out and obviously hopefully eased the cash burden a bit."

[36] Mrs Cavanough was aware that Ms Shade did not have formal accounting qualifications. She said:18

"Nevertheless did you have some reservations about the fact that Ms Shade didn't have any formal qualifications?---She assured me that she was really good at doing accounts and I knew she was familiar with the site and I once had a secretary for eight years and she was just as efficient as an accountant so I just took her on face value as well."

[37] On the funding arrangements for the project, Mrs Cavanough said:19

"It would be fair to say that you placed an enormous amount of trust in Ms Shade?---I did because I had to actually raise funds for the site so I stay in Sydney usually about four days a week to talk to clients because I can't suddenly just raise $2 million because we'd be paying interest and not using the money so it is on an at-needs basis so I just needed to know ahead of time if I needed $50,000 that week or $100,000 the next week, whatever I need, I need it on an at-needs basis, not all at once so I am needing to be in Sydney to raise those funds so I am usually there three days a week."

[38] And later:20

"In relation to Ms Shade's evidence that she was asking you for funds to pay creditors what would you say in response to that assertion, that Ms Shade was waiting on you to pay the money to her?---I was asking her often - like I am quite busy in my office. I have appointments every couple of hours and I need to know about Monday or Tuesday how much I need to raise by about Thursday or Friday and I often rang Sally on the Wednesday or Tuesday and said, "Please Sally, how much do I need to raise this week?" and I would find that I wouldn't get the answer till Thursday and the money is in a CMT account so I can earn 4 per cent and you have to pay $35 to do it that day when it costs nothing if you can do it overnight and so it was always a rush that you had to give her the money in the last second because there was no organisation."

[39] Mrs Cavanough denied that Ms Shade regularly asked for funds.

[40] Mrs Cavanough said that she was continually asking Ms Shade for accounts and that Ms Shade failed to deliver. This, she said, prevented a valuation of the site, which was necessary for future funding arrangements. Mrs Cavanough said:21

"Right?---What I didn't know though I couldn't borrow the money unless Sally gave me the accounts to show what I had actually spent on the property and what I owed on the property and I couldn't get those accounts off Sally. In fact I didn't get anything. The first indication of accounts was what has already been tendered on 26 June, is the first time I've got something showing my debts, not counting what's really probably spent as accounts.

Would it be fair to say that when you received the facsimile of 12 July which showed creditors in excess of $300,000, you were very concerned about that. You were angry about that?---I was really angry because two weeks earlier Sally had told me that we only owed $122,000 and then two weeks, after I had already sent her about I think $136,000, she said that we owed 300 and something thousand dollars."

[41] A document titled "Barbara Cavanough Funding" was tendered by the respondent.22 No explanation was provided as to the author of the document, or what purpose it served. It must therefore be treated with some caution.

[42] The document does record that a "request" for funding was made on 20 March, 10 May, 29 May, 9 June, 26 June, 6 July and 9 July. Up until 10 May amounts received closely matched amounts requested. Between 29 May and 9 July there appears on its face to be a shortfall between amounts requested and amounts received in excess of $300000.

[43] Mr Bromfield, who initially was engaged in an audit role, described the state of the accounts as "virtually useless".

[44] Mr Glass, a qualified accountant engaged subsequent to Ms Shade's departure, said he had "found lots of shortfalls in the accounting processes". In particular he highlighted the absence of bank reconciliations. He also said an examination of the bank statements revealed that there were sufficient funds to conduct normal trading.

[45] Mrs Cavanough stated that Ms Shade was asked to lodge an application for a liquor licence following a meeting on 17 May. The application was not lodged until late July.

[46] Ms Shade said she understood her role as providing assistance to the restaurant manager in obtaining the licence. The requirement for the potential licensee to attend a compulsory training course had contributed to the delay.

[47] The respondent referred to correspondence from the ATO concerning the non-completion of BAS for the period November 2003 to February 2004.23

[48] Ms Shade said this was discussed with Mrs Cavanough at the time and some thought was given to engaging a local individual with expertise in the area. She also telephoned the ATO and explained that the previous accountant had been forced to retire on medical grounds. The BAS was purportedly lodged under cover of correspondence from Ms Shade dated 3 August.24 According to Mr Bromfield, the ATO had advised that these returns were not received until 30 August.

[49] Ms Shade said she never had any expectation of handling taxation matters, as in her experience, this task was invariably outsourced.

[50] The respondent raised a number of other issues including building licences, a storage charge and certain petty cash transactions. They have been noted, but are not of sufficient moment to warrant a detailed analysis in this decision.

Finding

[51] I deal firstly with the preliminary jurisdictional issue.

[52] Mrs Cavanough said she understood Ms Shade to be a contractor. Aside from this, no evidence was produced going to the well-litigated tests associated with employee/independent contractor considerations. Even if Ms Shade chose to describe herself as a contractor (which she did not), the evidence points overwhelmingly to an employer/employee relationship. Whilst it is not a matter I need to decide, it would seem that the term "contractor" might in some instances be used somewhat loosely on this project. The mere identification of an individual as a contractor does not, in itself, create an independent contractor/principal relationship if the evidence suggests otherwise.

[53] In this case I have no hesitation in concluding that Ms Shade was engaged in an employment relationship with the respondent. It follows that the Commission has jurisdiction to determine the application on the merits.

[54] In relation to procedural fairness, the evidence indicates that Ms Shade was not at any stage warned or counselled that her employment might be in jeopardy, based on performance grounds.

[55] She was called to a meeting without being provided with the opportunity to have someone of her choosing present (see s.30(8) of the Act). She was summarily terminated without allegations being put and an opportunity to respond. When she asked for reasons, none were given.

[56] She was given a letter of termination citing "misconduct". The Employment Separation Certificate, lodged 25 days after the date of termination, also cited "misconduct". This certificate was subsequently withdrawn and modified following the initial conciliation conference.

[57] It is difficult to imagine a more profound denial of procedural fairness and I find accordingly.

[58] The remaining question therefore is whether there was a valid reason for termination, and if there was, do the circumstances taken as a whole outweigh the denial of procedural fairness?

[59] As indicated at the beginning of this decision, the witness evidence was in fundamental conflict on almost every key issue. There was however no basis for the Commission to make an adverse finding as to witness credit, such as would enable me to prefer the evidence of one witness to another as a matter of course. In certain instances however, I have drawn conclusions based on the balance of probability.

[60] I deal firstly with the matter of Ms Shade's terms of employment. There can be no doubt that the allegations grouped under this category, would if proven, amount to misconduct justifying summary termination. At the heart of this question is the hourly rate, and to a lesser extent the vehicle allowance and mobile phone.

[61] If I am to accept the respondent's contention, then I must conclude that Ms Shade, probably post-termination, constructed an elaborate fabrication of correspondence and events aimed at legitimising what she had allegedly put in place without the approval of Mrs Cavanough.

[62] There is simply no evidence that would allow me to reach this conclusion.

[63] Nothing was put to me that demonstrates how it is possible to get an e-mail print out, showing the date and time sent, unless the e-mail was actually sent. That is not to say conclusively that it was actually received by Mrs Cavanough.

[64] The e-mail of 25 November points to the need for a properly defined staff structure and is consistent with Ms Shade's version of events that followed.

[65] On the evidence it is simply not possible to conclude whether or not the 1 December correspondence was sent and/or received.

[66] I would at this stage make the following observations:

[67] Firstly, it is normal practice for an employer to specify the terms of engagement in writing, particularly for a relatively senior position. Mrs Cavanough did not provide any such advice to Ms Shade. This can be contrasted with a quite extraordinary capacity for detail in other aspects of the project, eg Exhibit A16.

[68] Secondly, matters such as use of a mobile phone and vehicle allowance are commonly provided by an employer in circumstances similar to this. This is not to be construed as a positive finding in favour of Ms Shade's evidence, simply an observation that it would not be unusual to find such arrangements in an employment package at this level.

[69] Both Ms Shade's and Mrs Cavanough's version of events are open. I am satisfied that Mrs Cavanough and Mr Bromfield were, at the very least, aware of the $35 ph issue prior to the termination of Ms Shade. In the circumstances the allegation should have been put to Ms Shade and an opportunity provided for a response. This did not occur.

[70] There are two other aspects which are of note, although do not necessarily lead to any firm conclusion.

[71] Immediately following the termination Ms Shade calculated her termination entitlements on the computer. This document25 clearly shows that the calculations were based on a rate of $35 ph. In light of the evidence, it seems unusual that both Mr Bromfield and Mrs Cavanough accepted these calculations without query.

[72] Mrs Cavanough's evidence was that Mr Glass, an accountant engaged some three weeks prior to the hearing, was paid $26 ph. Mr Glass said he was paid $30 ph. In closing submissions Mr Green sought to clarify this by stating that the $30 includes superannuation. Assuming Mr Glass is paid superannuation in line with SGC requirements (i.e. 9%), this simply does not add up arithmetically. It also raises the question as to why superannuation would be paid at all to an independent contractor. I attach no particular significance to this inconsistency in the evidence, other that to observe, that absent documentation, it is quite possible, indeed likely, that the specifics of employment packages will become increasingly blurred in the memories of individuals as time goes on.

[73] I conclude that in relation to the terms of employment, the respondent has failed to satisfy the onus of proving that Ms Shade behaved in a deceptive or fraudulent manner.

[74] I turn now to the performance related issues.

[75] It is not for the Commission to unravel the complexities of the financial arrangements in place for this project, save to observe that I am not surprised that Ms Shade felt she was under constant cash flow pressure. Whether this perception was justified is another question and not one the Commission needs to answer.

[76] I am satisfied that there were shortcomings in the accounting procedures adopted by Ms Shade, and I highlight in particular the absence of bank reconciliations. Ms Shade said her experience with MYOB was limited. Whether she conveyed something different to Mrs Cavanough prior to appointment is not clear from the evidence. Whether these shortcomings might have been quickly overcome through some additional training does not appear to have been addressed by the parties.

[77] I am satisfied that Ms Shade did on a reasonably regular basis seek funding from Mrs Cavanough and that these requests were not always met either in full or in a timely manner. It is clear that creditors were constantly pressing Ms Shade for payment. This raises the question of what possible motivation would Ms Shade have in subjecting herself to this unpleasant pressure, if she was confident that the funds were available to pay accounts on a timely basis?

[78] The issues relating to the BAS and liquor licence were potentially serious. However Ms Shade offered explanations that, on face value, appear plausible.

[79] Clearly there were issues emerging as to the management of the project. Where the blame for these difficulties should be attributed is another matter. More importantly, what steps did the parties take to retrieve the position? It would seem precious few.

[80] It is not for the Commission to retrospectively micro manage these difficulties. That is a matter for the parties. If there were shortcomings in the performance of Ms Shade, they should have been brought to her attention, ideally with constructive proposals to redress the problems. If her employment was in jeopardy, she should have been told and given the opportunity to meet the employer's expectations.

[81] It would seem that none of this occurred. The problems were allowed to continue without being addressed. Then, without warning, Ms Shade was summarily terminated without reasons on the grounds of misconduct. In my view there was no evidence of misconduct. It is possible that handled differently, a valid reason for termination, based on performance, may have ultimately emerged. However that position had certainly not been reached on 5 August 2004.

[82] Whilst it is a matter for conjecture, it is possible that the position became too large and/or broad for one individual to handle. I am reinforced in this view by the decisions taken subsequent to Ms Shade's departure. It would seem that she has been replaced by a full-time general manager with a degree in business administration, a full-time qualified accountant and increased hours for the two administrative assistants.

[83] I find that the respondent has failed to prove the existence of a valid reason for termination.

[84] It follows that I find Ms Shade was unfairly terminated.

Remedy

[85] Given the level of obvious animosity engendered by Mrs Cavanough towards Ms Shade, I am satisfied that reinstatement is not a practical option. I am however of the view that an order for compensation would be appropriate.

[86] I do not accept that Ms Shade had a five-year contract. She had knowledge that the project would continue for five or more years, and, all things being equal, she had a reasonable expectation that she would have a role in the project for the duration. This however falls short of a binding five-year contract.

[87] I do not accept that Ms Shade's purchase of a new vehicle is something that I should take into account. Whilst this purchase was a perfectly reasonable decision at the time, it was not something mandated by the employer.

[88] I accept that the payment received on termination covered entitlements only and is not something I need to take into account.

[89] I acknowledge and accept the possibility, that even if the employer had followed due process; a valid reason for termination might ultimately have emerged. The qualifications of the individuals who have effectively replaced her give weight to this possibility.

[90] In determining compensation in this case the overriding consideration is the remuneration Ms Shade would have been likely to receive, had she not been terminated.

[91] In my view a reasonable period to allow for due process, including any additional training and assessment, would have been eight weeks.

ORDER

Pursuant to s.31 of the Industrial relations Act 1984, I hereby order that Willow Court Training and Construction Pty Ltd, The Avenue, Willow Court Complex, New Norfolk, Tasmania 7140, pay to Sally-Anne Shade an amount of eleven thousand two hundred dollars ($11200), such payment to be made not later than 5.00pm on Tuesday 7 December 2004.

 

Tim Abey
COMMISSIONER

Appearances:
Ms S-A Shade, self-represented
Mr C Green, solicitor, Page Seager, with Mr D Bromfield, for Willow Court Training and Construction Pty Ltd

Date and Place of Hearing:
2004
September 14, 30
October 5, 7, 14
Hobart

1 Exhibit R17
2 Transcript PN 765 to 767
3 Transcript PN 837
4 Exhibit A25
5 Exhibit A1
6 Exhibit R1
7 Exhibit R1
8 Transcript PN 122
9 Exhibit A4
10 Transcript PN 811 to 817
11 Transcript PN 931 and following
12 Transcript PN 1422
13 Transcript PN 158
14 Transcript PN 343 to 347
15 Transcript PN 432 to 436
16 Exhibit R9
17 Transcript PN 471 to 475
18 Transcript PN 807
19 Transcript PN 808
20 Transcript PN 818
21 Transcript PN 826, 827
22 Exhibit R10
23 Exhibit R2
24 Exhibit R3
25 Exhibit A24