Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T11391

 

TASMANIAN INDUSTRIAL COMMISSION

Decision Under Appeal

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

Liquor, Hospitality and Miscellaneous Union -
Tasmanian Branch
(T11391 of 2004)

and

Classic Video Pty Ltd trading as Video City

 

COMMISSIONER T J ABEY

HOBART, 14 April 2005

Industrial dispute - reference from Full Bench pursuant to s.71(13)(c) - new evidence not available at first hearing - termination not a genuine redundancy - reinstatement ordered

REASONS FOR DECISION

Background

[1] On 24 June 2004 the Commission as presently constituted issued a decision in relation to the termination of employment of Ms Allison Adkins1 [The first decision].

[2] Relevantly, I made the following observation in this decision:

"I have reached the conclusion that this was a genuine redundancy, albeit handled poorly and insensitively. In the circumstances reinstatement is not a practical option, in that the employer has made it clear that there is no longer a role for four full-time library attendants in the Devonport library. I turn now to the matter of compensation."

[3] The union lodged an appeal against this decision alleging, inter alia, that the termination of Ms Adkins was not for the purpose of a genuine redundancy and that there was no valid reason for such termination.

[4] On 30 November 2004 a Full Bench of the Commission heard an application from the union which sought the admission of fresh evidence pursuant to s.71(8) of the Act, together with Directions for the production of certain documents and information.

[5] On 7 December 2004 the Full Bench issued a decision in relation to this application.2 The Full Bench said:3

"We propose to grant the application by the LHMU in a limited way.

We grant leave to present the additional evidence to the Full Bench and have decided to direct Commissioner Abey to hear and consider that additional evidence either by hearing argument and/or sworn evidence and to take any further action he deems necessary to deal with the subject matter of the decision in accordance with this direction.

This is an appeal against the decision of Commissioner Abey in the form of a rehearing but not a rehearing de novo and as such it is our view that it is appropriate to remit the matter back to Commissioner Abey.

We adopt this action being of the view that Commissioner Abey is familiar with the matter having heard the application at first instant. Further it is of concern to us that allegations that the termination for reasons of redundancy was little more than a sham need to be tested against the evidence already presented and heard by Commissioner Abey. It is in the public interest that the Commissioner not be seen to have been misled in respect to this application in the hearing at first instant.

The fresh evidence needs to be tested. It will be relevant whether or not it was the intention of the employer to replace Ms Adkins regardless of the determination of her application before the Commission. Before Commissioner Abey there were no issues of work performance raised in respect to Ms Adkins, nevertheless it seems that when the employer determined it necessary to engage a new employee at Devonport, some short time after declaring Ms Adkins redundant, that new position was not offered to Ms Adkins.

The fresh evidence will address the events surrounding the employment situation at both the Devonport and Burnie outlets since the termination of Ms Adkins. The issue of the termination being necessary due to redundancy was fundamental to the matter before the Commissioner.

It is the contentious nature of the allegations by the LHMU, both before Commissioner Abey and again in appeal documents, which causes us to take the perhaps unusual approach we have decided.

Further, the principles generally applied in a consideration of an application to admit further or fresh evidence take account of the possibility that "if the evidence had been available there was at least a firm chance that the result would have been different." That does not mean that the result would have been different only that it was a possibility.

We have already indicated that the fresh evidence relied upon was not available at that time and we note that the termination was effected due to an alleged redundancy. It was not until Ms Adkins was alerted to the fact that a new employee had been engaged at the Devonport store that her concern that her redundancy was not a genuine redundancy again surfaced."

[6] The Full Bench issued Directions in the following terms:

"Accordingly and pursuant to s.21(2)(n) of the Act we direct the respondent employer in this matter to provide the following information and documentation to the LHMU and to the Commission:

(1) All media advertisements relating to the employment of Ms Pulford and Ms Brown;

(2) Rosters for the Devonport and Burnie stores for the period 1 July, 2004 to 13 September, 2004;

(3) Job descriptions or documents setting out the duties and tasks of both Ms Pulford and Ms Brown;

(4) Names, employment history and status of employees at the Devonport store including other locations at which work has been performed by those employees, from 1 July, 2004 to 13 September, 2004;

(5) Sales and hiring records and records of daily takings for the Devonport and Burnie stores for the period 1 January, 2003 to 1 November, 2004. This information shall be treated as commercial-in-confidence and will only be available to the LHMU in the presence of the Commission Registrar. This information will be treated as commercial-in-confidence if presented to Commissioner Abey in formal proceedings. The information cannot be provided to any other person or persons.

Such information shall be made available to the Commission Registrar by 4.30pm Friday 10 December, 2004."

[7] Subsequently the date for the provision of information was altered to 7 January 2005.

[8] The Full Bench also issued a Direction to the Commission as presently constituted "pursuant to s.71(13)(c) ... to take further action to deal with the subject matter of the decision in accordance with our directions".

[9] Section 71(13)(c) reads:

"(13) On the hearing of an appeal, a Full Bench may do one or more of the following:

    ...

    (c) direct the Commissioner who made the award or the Commissioner or Registrar whose decision is appealed against, or another Commissioner, to take further action to deal with the subject-matter of the award or decision in accordance with the directions of the Full Bench."

Current Proceedings

[10] Attempts to list the matter in January 2005 failed due to an inability to find a common date when all parties were available. As a consequence the matter was listed for hearing in Hobart on 4 March 2005.

[11] On 2 March the union sent the following correspondence:

"I refer to this matter and the hearing set down for 4 March.

As a result of information received, the union now wishes to put on evidence however the Union is not in a position to do this on Friday. The Union therefore seeks that the date be vacated and the matter relisted in Ulverstone, at the convenience of the Commission."

[12] After conferring with the parties per telephone, the following Directions were issued on 3 March 2005:

"1. The parties are to exchange the names of any witnesses to be called, together with a dot point summary of the nature of the evidence to be adduced. Such exchange to take place not later than 5.00pm Thursday 17 March 2005.

2. The nature of any evidence must be within the confines of the subject matter identified in the directions issued by the Full Bench in the decision issued on 7 December 2004, and subsequently modified by a decision handed down on 9 December 2004.

3. The Commission is to be provided with a copy of any documentation exchanged pursuant to the above directions.

..."

[13] The matter was re-listed for hearing on 23 March 2005 in Ulverstone.

Evidence

[14] Sworn evidence was taken from the following witnesses:

    · Belinda Jane Saltmarsh, a Level 2 Library Attendant for eight years, six of which have been in the Devonport store.

    · Daleleen Lynette Cox, Supervisor of the Devonport and Burnie libraries.

[15] From the evidence the following picture emerges:

[16] Up until the early part of 2005, Mrs Cox had a supervisory responsibility for two libraries located in Launceston, together with the Devonport and Burnie libraries. She was based in the Devonport library and travelled to Launceston on average once per fortnight.

[17] As a consequence of a company restructure a new library manager was appointed in Launceston. Mrs Cox was relieved of management responsibilities for the Launceston libraries, including the necessity to travel to Launceston. Whilst there was some debate as to what this actually meant in practical terms, it is clear that the change enabled Mrs Cox to spend more time on what might be described as library attendant duties in the Devonport store.

[18] Prior to the termination of Ms Adkins, the staffing complement at the Devonport library consisted of Mrs Cox, four full-time library attendants plus a number of casual employees.

[19] The decision to make Ms Adkins redundant was made by Mr Ewing.

[20] At the time the decision to make Ms Adkins redundant was made, both Mrs Cox and Mr Ewing were aware that another full-time library attendant, Ms Megan Williams, would be proceeding on maternity leave in the near future.

[21] Ms Adkins ceased employment on 2 April 2004.

[22] Ms Williams proceeded on maternity leave on 9 April 2004.

[23] With these two departures the operating staff consisted of Mrs Cox and two full-time library attendants, plus casual employees. This staffing complement remained in place for the next three months.

[24] On the evidence of Mrs Cox they "managed" with this reduced staffing level until it became necessary to cover annual leave absences. Both of the remaining full-time employees were due to take annual leave in July and August 2004.

[25] Mrs Cox was aware of the leave schedule at the time Ms Adkins ceased employment. Further she was aware that they would not be able to provide appropriate staff relief with the reduced number of full-time employees. The evidence of Mrs Cox on these issues was as follows:4

"What was the basis upon which you made that decision that you could cope with two full timers?---Well, I was doing the duties of a library attendant and we managed to cope, Belinda, myself and Jacinta managed to cope okay.

So what changed - when did the change come into your mind that you couldn't cope and you needed to put somebody else on?---When I knew that annual leave had to be taken, or eight consecutive weeks.

And when was that?---June, around June.

Now, company policy is that employees have to take annual leave within three months of their anniversary date; isn't that the case?---Yes.

Yes, so you would have known when Mrs Adkins and Ms Williams left that you would be facing eight or nine weeks of annual leave that had to be taken some time in June onwards, wouldn't you?---Yes.

Yes. Now, were you consulted about the decision to make Mrs Adkins redundant?---No.

So you were just told she was going to be made redundant?---Yes.

Now, you say you decided that Mrs Williams - or Ms Williams, I do apologise - Ms Williams wouldn't be replaced; that is correct, isn't it?---No.

You have already said in answer that you decided that you wouldn't replace Mrs Adkins and Ms Williams?---Megan Williams was on maternity leave - - - 

Yes?--- - - - it wasn't up to me to say that we would replace her or - - - 

Well, you said in answer to my friend and then you have kindly repeated it to me that in fact you made the decision you could cope with two less people after Mrs Adkins and Ms Williams left; that is correct, isn't it?---I didn't make any decision, we just coped okay at that time.

You just stumbled along?---No, we managed very well and I suggested to Mr Ewing that we were running the library quite well with myself and Belinda and Jacinta, the two full timers.

But you knew that within a month or two that you had eight or nine weeks annual leave that you couldn't cover, didn't you?---Yes, I knew annual leave was due for the two girls.

And you knew how much?---Yes.

And you knew you couldn't cover it?---Yes.

Yes. But even so you told Mr Ewing that everything was going along well, did you?---Yes, it was at the time.

Yes, but you knew that that wouldn't be the case?---Yes.

Now, see, the only thing that changed between 9 April, that is the date that Megan Williams went on maternity leave, and June when you - when it was decided to employ another person, was that the annual leave issue became important?---Yes."

[26] On 30 June 2004 the following advertisement was placed in the Advocate newspaper.5

"Video Library Attendant

Full Time

Video City

Experience in a retail or video environment would be an advantage. Training will be provided in relation to the video industry. A licence and own transport is essential as some travel to work in our Burnie Library will be required. Applications must include a hand written covering letter outlining your reasons for wishing to work at Video City. Please include photo and contact phone number. Address the application to Manager Video City, 130 Best Street, Devonport 7310.

Applications close Tuesday, July 6, 2004. The successful applicants only will be notified by Friday, July 9, 2004."

[27] Ms Adkins did not apply for this position, nor was she approached by the employer.

[28] Mrs Cox said:6

"THE COMMISSIONER: Mrs Cox, when the advertisement was placed in June - the end of June and early July?---Yes.

- - for the position that was ultimately filled by Ms Pulford, was any thought given to ringing up Ms Adkins and asking her if she was interested?---I didn't give it any thought, no, because, like, it was, sort of, out of my hands. I knew that the case was, you know, ongoing, so no, I didn't approach Mr Ewing at all.

No, but you didn't approach Ms Adkins?---No."

[29] On 9 July 2004 Ms Cindy Pulford was appointed as a full-time library attendant based in the Devonport library. The duties performed by Ms Pulford are essentially similar to that previously performed by Ms Adkins. However Ms Pulford does not perform duties associated with banking with the same regularity as previously undertaken by Ms Adkins.

[30] In December 2004 Ms Pulford worked for one month in the Burnie library.

[31] On 6 September 2004, Ms Jacinta Morgan, a full-time library attendant, resigned. She was replaced by Ms Michelle Brown. It would seem that an advertisement in Australian JobSearch on 30 August 2004 for a "Temporary, Full-Time" employee, may have related to this position. However the evidence in relation to this advertisement was confusing.

[32] The staff complement in the Devonport library at the time of hearing the current matter consisted of Mrs Cox, three full-time library attendants, and presumably a number of casual employees.

[33] No evidence was presented going to either a downturn or increase in business activity prior to or after the termination of Ms Adkins.

[34] None of the above evidence was made available to the Commission when hearing the matter at first instance.

Finding

[35] As I observed in the first decision, on the authority of Quality Bakers of Australia,7 the evidentiary onus falling to an employer to justify a redundancy is not particularly onerous. In the matter at first instance the employer produced no evidence whatsoever. In the matter now before the Commission, the employer's position is that a management restructure resulted in excess staff being employed in the Devonport library, and the employer exercised its prerogative to rearrange the staffing complement to best meet the efficient ongoing operation of the business.

[36] The direction from the Full Bench is quite specific. I am to consider the new evidence for which leave to introduce has been granted, and determine whether the first decision might have been different, had the new evidence been made available at the time.

[37] I turn firstly to matters which I consider should be disregarded.

[38] No evidence was produced purporting to justify the redundancy based on a downturn in business activity. Similarly no evidence was produced purporting to justify the employment of Ms Pulford because of an upturn in business following the termination of Ms Adkins. Accordingly I conclude that neither the termination of Ms Adkins, nor the subsequent engagement of Ms Pulford, was in any way linked to a change in business activity.

[39] Similarly I reject the relevance of the resignation of Ms Morgan and subsequent appointment of Ms Brown in September 2004. This occurrence could not have been known or anticipated by the employer at the time of the Ms Adkins' termination.

[40] It is clear from the evidence that the management restructure resulted in Mrs Cox being in a position to spend more time in an operational role at the Devonport library. Given this change, it is not for the Commission to micro analyse and manage the revised duties of Mrs Cox.

[41] The notion of "operational requirements" was discussed in Nettlefold v Kym Smoker8 and referred to in my first decision. If, as it appears on first blush in this case, the employer chooses to "arrange for labour to be used more productively", then that is a decision with which I would not lightly interfere.

[42] Similarly, narrow definitions of redundancy, along the lines of the employer not requiring the job to be done by anyone, are not particularly helpful. The commercial realities are that it is open to an employer to decide that the same work is to be done by fewer people, or that duties previously performed by an individual are divided amongst remaining staff. Provided employees affected adversely by such a process are treated sensitively and fairly, it would not be appropriate for a tribunal to substitute its view for that of management.

[43] Applying these tests to the instant matter, I would accept that it would be open to the employer in light of the management restructure, to reduce the number of full-time library attendants from four to three, even in the absence of a downturn in business.

[44] I would go further and observe that it would be open to the employer not to replace the employee on maternity leave, if on an objective assessment, the business could continue to operate on a sustainable basis.

[45] The facts in this case point however to a quite different conclusion.

[46] At the time Ms Adkins was made redundant, the employer knew that Ms Williams would be proceeding on maternity leave in the near future.

[47] Ms Williams commenced maternity leave one week after the termination of Ms Adkins.

[48] The employer was aware at the time Ms Adkins was terminated, that the two remaining full-time staff would be proceeding on leave during July and August 2004. Further the employer knew, at that time, that the business could not cope with only two full-time library attendants.

[49] It should be noted that in the matter at first instance, Ms Adkins sought reinstatement. In light of the evidence it would therefore seem a quite extraordinary coincidence that the employer would place an advertisement in the newspaper for a full-time library attendant, less than one week after my decision was known. Further the advertisement clearly called for a full-time employee, without any mention of a "temporary" position, which might be expected if it was for maternity leave relief.

[50] Given that at no stage has the work performance of Ms Adkins been questioned, it seems most unusual that Ms Adkins was not approached concerning the vacancy. Had the need for an additional library attendant not manifested itself until some time after the termination of Ms Adkins, such an approach would have been expected.

[51] I have reached the conclusion that at the time Ms Adkins left her employment, the employer knew that the remaining staff complement was insufficient to cover the ongoing requirements of the business. It would seem that the timing of the decision to advertise was closely linked to the release of the first decision.

[52] In light of the evidence I have reached the regrettable but unavoidable conclusion that the decision to make Ms Adkins redundant was in some way retaliation for the earlier s.29 dispute notification lodged on her behalf in relation to the roster issue. This is a finding I declined to make in the first decision.

[53] I am satisfied that the termination was not on the basis of a genuine redundancy.

[54] It would not be strictly correct to say that the Commission was misled when hearing the matter at first instance. Simply put, I was not provided with any rationale or justification for the termination.

[55] Consistent with the direction from the Full Bench, the question that must be determined is, would the first decision have been different, had this new evidence been before the Commission?

[56] The answer is "Yes".

[57] I would have ordered reinstatement.

Remedy

[58] Section 31(1B) of the Act makes it clear that the primary remedy for an unfair dismissal is reinstatement or re-employment. Ms Adkins has consistently pursued reinstatement during the hearing at first instance, the appeal and the current proceedings.

[59] At no stage has Ms Adkins' work performance been called into question.

[60] The employer did not advance any evidence to suggest that reinstatement was impractical.

[61] Consistent with the requirements of the Act I propose to order reinstatement without loss of continuity of employment for the purposes of accrued entitlements.

[62] There is however one further matter which requires consideration.

[63] This matter has taken an inordinately long period of time to bring to finality. Whilst arbitration and a subsequent appeal process will inevitably take some time to resolve, a period of more than 12 months is excessive.

[64] The reasons for the delays have been soundly based and no particular blame should attach to the parties or the Commission.

[65] Suffice to say that the employer has been cooperative throughout the process. In such circumstances I consider that it would be unreasonably onerous for the employer to bear the entire cost of wages for the period since 2 April 2004.

[66] I propose to order payment of wages for a period of 26 weeks, from which may be deducted any payment the employer may have made in the nature of a redundancy payment.

ORDER

Pursuant to section 31 of the Industrial Relations Act 1984 I hereby order that:

1. Ms Adkins be reinstated to her former position without loss of continuity of employment for the purpose of accrued leave entitlements, such reinstatement to take effect not later than 20 April 2005, and

2. Classic Video Pty Ltd trading as Video City pay to Ms Adkins an amount equivalent to 26 weeks' wages, less an amount that may have previously been paid by way of a redundancy payment, such payment to be made not later than 4 May 2005. For the purposes of this calculation the weekly wage shall be the normal weekly wage that was paid to Ms Adkins immediately prior to the termination of her employment.

 

Tim Abey
COMMISSIONER

Appearances:
Mr P Tullgren for the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch
Mr S Cornish, of the Tasmanian Chamber of Commerce and Industry Limited, with Mr T Ewing, for Classic Video Pty Ltd trading as Video City

Date and Place of Hearing:
2005
March 23
Ulverstone

1 T11316 and T11391 of 2004
2 T11594 of 2004
3 Supra PN 48 to 56
4 Transcript PN 495 and following
5 Exhibit A1
6 Transcript PN 700 to 702
7 IR Court No. RWIR 142 of 1994
8 1996 Federal Cases vol 40 at 2847