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T11819

 

TASMANIAN INDUSTRIAL COMMISSION

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

Emily Louisa Ross
(T11819 of 2004)

and

Brandon Raynor Naturopath

 

COMMISSIONER JP McALPINE

HOBART, 7 February 2005

Industrial dispute - termination of employment - alleged breach of award - Orders issued

REASONS FOR DECISION

[1] On 22 November 2004, Emily Louisa Ross (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 Brandon Raynor Naturopath (the respondent) arising out of her alleged unfair termination of employment; and alleged breach of award or registered agreement.

[2] The President convened a hearing (conciliation conferences) at the Supreme Court, Cameron Street, Launceston, Tasmania on 21 December 2004. The Commissioner convened a further hearing on 7 January 2005.

[3] Mr M Rapley, Page Seager, Barristers and Solicitors, appeared for and on behalf of the applicant; Mr Thane Brady, Tasmanian Chamber of Commerce and Industry Limited for and on behalf of the respondent.

[4] The respondent employed the applicant from 9 March 2004 until 2 November 2004. She was remunerated at a rate of $600.00 per week for a nominal 40-hour week.

[5] On 2 November 2004 the applicant alleged the respondent unfairly dismissed her. She also alleged the respondent breached the Clerical and Administrative Employees (Private Sector) Award by employing her at Grade 2a salary, rather than Grade 5.

[6] The respondent asserted the applicant was not unfairly dismissed, but resigned of her own volition. The respondent also denied breaching the award with respect to the applicant's award level.

[7] Evidence was taken from the following witnesses:

Stephen Stearnes
Fiona Denise Ind
Emily Louisa Ross
Karel Clark-Stonehouse
Brandon Raynor

BACKGROUND

[8] The applicant asserted the respondent unfairly dismissed her on 2 November 2004 following a confrontation initiated by Brandon Raynor and his wife Rebecca Raynor. The parties admitted the confrontation to being very heated, loud and noisy. It was initially directed at another staff member, but then Mr Raynor and his wife confronted the applicant. The applicant asserted she was accused of complicity in a scheme allegedly initiated by other staff members to entice clients of the respondent away from that business.

[9] The applicant was accused of stealing information from a client database, for use by other staff members, to damage the respondent's business. The respondent further accused her of manoeuvring to falsify a Shiatsu massage course certificate for a staff member, who was one of the alleged conspirators.

[10] The applicant was also accused of communicating with Workplace Standards for some alleged sinister, but unspecified reason. The applicant denied all of the allegations.

[11] The applicant attested she offered to continue working on that day, but was told to leave. She further attested she offered to return to work on 3 November 2004, to discuss the situation rationally with the respondent. She did return the following day to a hostile reception by Mrs Raynor, eventually saw the respondent but could not resolve the situation.

[12] The applicant and others have suffered the ignominy of being publicly accused of duplicity by way of a large notice1 displayed on the respondent's notice board, on the outside wall of his establishment. The respondent denied having any knowledge of the authorship of the document, or of who placed the document on his notice board.

[13] The respondent did not deny accusing the applicant of duplicity with regard to poaching clients from his business. He did not deny accusing the applicant of stealing data or of legerdemain in procuring a certificate for Ms Ind. He did not deny alleging sinister motives for the applicant approaching Workplace Standards.

[14] The respondent based the bulk of his allegations on information given to him by Karel Clark-Stonehouse, a past student of his massage school. He claimed to have had bad feelings of his own as a basis for some of his accusations. He cited no other proof.

[15] The respondent asserted the applicant resigned of her own volition. He cited the fact the applicant produced a formal Centrelink Separation Certificate for him to fill in when they met on 3 November 2004. He denied he or his wife dismissed the applicant on 2 November 2004. He claimed the business needed the applicant's services in one part of his evidence, yet under cross-examination he denied saying this.

[16] The respondent asserted it was he who initiated the meeting on 3 November 2004; however, in another part of his evidence he agrees it was the applicant who initiated the meeting.

[17] The applicant asserted the respondent had breached the Clerical and Administrative Employees (Private Sector) Award by remunerating her at a Grade 2a instead of Grade 5. She cited duties that she claimed entitled her to the higher level of remuneration.

[18] The respondent denied the breach of award and cited his view of the applicant's duties.

[19] The applicant also asserted a breach of award with respect to hours of work and payment of overtime.

[20] The respondent acknowledged two-hours overtime were worked each week and paid at ordinary time. He also acknowledged he was prepared to pay the applicant for a week's training she undertook, for which she was not remunerated.

FINDINGS

[21] I will deal with the alleged breach of award in the first instance.

[22] It was asserted by the applicant, she was performing duties consistent with Grade 5 of the Clerical and Administrative Employees (Private Sector) Award. The purported job description tendered by Mr T Brady, for the respondent, with final submissions, is of little value. It only outlines the telephone sales process and the course enrolment process. I will rely, in the main, on the evidence given at the hearing and the content of the award itself. To function as a Grade 5 a person must demonstrate proficiency and execution the following skills areas.

  • Computer Operation: there is no evidence the applicant either utilized multiple software packages, or was required to manipulate data such as graphing or charting;
  • Word Processing: there is no evidence the applicant was required to perform advanced word processing techniques;
  • Secretarial Skills: the applicant did perform some of the more organizational aspects of this requirement, however, there is no evidence to conclude she was required to demonstrate a high proficiency in shorthand or typing;
  • Information Handling Skills: the requirement of the applicant in this area was not as extensive as Grade 5 demands. The skills required in the role could be met at Grade 2;
  • Business/Financial Skills: the requirements of the applicant were predominately depositing monies and reconciling petty cash. The applicant claimed she maintained records and instructed the mainland office as to wages and payments to practitioners. In evidence, the applicant asserted she checked the arithmetic for correct wage rates and the practitioners' calculations. She did not instruct the mainland office, but merely transferred checked calculations. She had no authority in this area. The applicant also claimed she was responsible for calculating practitioners' superannuation. This, in evidence, was admitted to be a once off event and not expected to be a feature of the role;
  • Supervisory Skills: the applicant claimed she trained, supervised, and organized the work of Kalinka Booth. Ms Booth was a part time employee who assisted the applicant for a short time. The respondent asserts Ms Booth reported to him and it was he who set out the times when she would work. The applicant in all probability did allocate tasks to Ms Booth and probably mentored her. This does not satisfy the requirements of Grade 5; and
  • Specialist Skills: again the applicant failed to demonstrate she was required to exhibit any of these skills.

[23] I find there are no grounds for the applicant's assertion she performed at Grade 5 of the Clerical and Administrative Employees (Private Sector) Award. Accordingly, I dismiss the alleged breach of award, in respect to the classification level of the applicant, of the application.

[24] In respect of the hours of work breach of the award, the respondent acknowledged the applicant, under the award, should have worked a 38-hour week. Anything beyond that was overtime. The applicant was engaged on a 40-hour week. She was paid at ordinary time for the two hours extra.

[25] The respondent accepted he owed the applicant the difference between the two rates for the weeks she worked. The respondent also confirmed he was prepared to pay the applicant a further 38-hours pay, at ordinary time, for one week's training she undertook but for which she was not remunerated.

[26] I will outline the quantum of the outstanding monies in the Orders.

[27] I now consider the alleged unfair dismissal aspect of the application. The Industrial Relations Act 1984 (the Act) is clear on the onus of proof.

[28] Section 30(5) of the Act states:

"Where an employer terminates an employee's employment, the onus of proving the existence of a valid reason for termination rests with the employer."

[29] In the case before me s.30(5) should not apply as the respondent claims the applicant resigned. The respondent, however, went to considerable lengths to portray he indeed did have valid reasons for the alleged termination.

[30] Section 30(6) of the Act states:

"Where an applicant alleges that his or her employment has been unfairly terminated, the onus of proving that the termination was unfair rests with the applicant".

[31] To assess this aspect of the requirement of the Act, events of 2 November 2004, the events of the 3 November 2004 and contributing factors before and after the alleged dismissal need to be considered.

[32] It was agreed in evidence, on 2 November 2004 the respondent and his wife, Rebecca, entered their premises in a somewhat agitated state. The respondent and Mrs Raynor confronted Helen McCauley with various accusations. She was told to leave in no uncertain terms.

"... you know," but my wife was sort of also - she was just - she was yelling at her to get out basically." 2

"... and then Rebecca and Brandon came in very angry and started screaming and swearing at Helen, our massage therapist." 3

[33] The respondent and his wife then turned their attention to the applicant. However, the applicant and respondent's version differ somewhat.

"So neither you nor your wife were yelling at Emily.---No." 4

"So, Emily, this was a very heated conflict?---Mm, yes." 5

"Is that a fair assessment?---Yes, it had me shaking and I was even - it was even commented that, "Oh, you're shaking, you must be guilty," so ---" 6

[34] I have no doubt the confrontation was heated. The respondent and his wife had been primed by the allegations secreted to them by Ms Clark-Stonehouse. In her evidence Ms Clark-Stonehouse alludes to the agitated state of mind of the respondent and his wife as she unfolded her allegations prior to the confrontation with the staff.

[35] It is hard to believe that Mrs Raynor who, one moment was screaming at one person accusing her of various duplicitous acts would not behave in the same way with another accused of the same things, in the same time frame and in the same physical locality.

[36] The applicant asserted the words used at the confrontation on 2 November 2005 left her in no doubt her employment had been terminated. The respondent denied this. The applicant claimed her sister phoned the business that same day to speak to her and was told she no longer worked there. This was not challenged.

[37] Whether the respondent or his wife said, "get out" or "go home" to the applicant on the 2 November 2005 cannot be established. However, the intent was certainly to remove the applicant from the premises, in the same vein as the other staff member who was accused.

[38] In comments on transcript during the conciliation conference on 21 December 2004, the respondent asserted it was he who initiated the meeting on the following day. However, during examination-in-chief, he confirmed it was the applicant who had initiated the follow-up meeting, in her words "after things had calmed down".

[39] On 3 November 2004, the applicant returned to the business at the appointed time. She asserted she met an extremely hostile Ms Raynor, who told her that her husband was not ready to see her and to leave and come back later. She returned and met with the respondent. The applicant asserted, after no headway in the discussions she asked the respondent to fill out a Separation Certificate.

"He sat down opposite me and he just - he went, hm and looked at me and he didn't say anything and I just said after a period, I said, "If I don't work here any more then you may as well fill that in," and it was a separation certificate that I got from Centrelink ..." 7

[40] The respondent on the other hand claims the applicant resigned.

"... and I said, "So, you know, what do you think? What, you know" - and she goes, "Yes, I don't feel comfortable working here any more," and she gave me her employer separation certificate." 8

[41] The respondent filled in the Centrelink Separation Certificate and cited "unsuitable for employment" as the reason for the applicant's termination. I take it the respondent meant he ticked the box next to the words "unsuitable for this type of work". He gave various reasons for denoting the separation as being due to "unsuitable for this type of work". The respondent was aware of his responsibility to fill out this certificate honestly. On the certificate it clearly states "Giving false or misleading information is a serious offence".

[42] In his evidence, the respondent expressed that the business "required" the applicant, hence he had no reason to dismiss her. He later denied the business required the applicant in cross-examination, but the transcript shows he indeed tried to make a case that the applicant was required.

[43] On 3 November 2004 the respondent had every opportunity to ask the applicant to return to work, if she was required. He did not.

[44] In determining this application much comes down to the credibility of the witnesses.

[45] I found the applicant, Emily Ross, to be clear and unambiguous. She portrayed herself as a reasonable employee. Her actions: eg, reconciling the petty cash after she had allegedly been terminated; and offering to be available should clarification be required on any matter and the like.

[46] The respondent confirmed the applicant's considerate behaviour. Other witnesses referred to her in positive terms. I believe her evidence to be an honest account of how she saw the situation.

[47] The evidence of Mr Stearnes and Ms Ind was directed at the allegations made regarding the applicant's conduct, with respect to the respondent's accusations of duplicity, legerdemain, poor performance and disloyalty. Their evidence supports the applicant's assertions contributing to their veracity.

[48] Ms Clark-Stonehouse's evidence, once again, revolves around the applicant's conduct, with one difference. The respondent accepted the allegations of the applicant's misconduct, proffered by Ms Clark-Stonehouse, apparently without question. The result of this contributed to the demeanour of the respondent and his wife when they confronted the applicant. Ms Clark-Stonehouse's evidence was peppered with her assumptions, much based on hearsay with no supporting evidence. Her evidence lacked credibility.

[49] The respondent presented as unreliable. He contradicted himself on a number of occasions. His evidence at almost every juncture was circuitous. Three incidents confirm my regarding his evidence as, in the least, unreliable. His admitted attempted intimidation of the applicant during a break in the conciliation conference, his admitted authorship of an offensive e-mail to Mr Stearnes and the existence of the libellous poster displayed outside his business premises, albeit he denies knowledge of authorship of the latter. The language and tenor of the poster is in concert with the respondent's views expressed during the hearing. His suggestion that the poster could have been created and put on his notice board by those named in it to discredit him is fanciful in the least. These acts imply vindictiveness on the part of the respondent.

[50] All the evidence points to a situation that was ignited by the largely unfounded hearsay of Ms Clark-Stonehouse. I am convinced the respondent left the applicant in no doubt her employment had been terminated on 2 November 2004. Supporting this, among other evidence, is the Separation Certificate admitted to being signed as "unsuitable"; the fact the respondent could have assured the applicant of her ongoing role on 3 November 2004, and the unreliability of the respondent and his witness.

[51] In addition, the applicant has suffered the ignominy of public scrutiny, in a small community, of unproven allegations against her. The applicant, until the confrontation on 2 November 2004, had every right to expect ongoing employment with the respondent.

[52] Allegations of misconduct were, in the main, hearsay. The allegation regarding issuing a Certificate to Ms Ind by underhanded means could not be proven, but should it have been true could have been reversed by the respondent at the time. Allegations of poor performance were not addressed at the time and therefore basic procedural fairness would have to be questioned.

[53] I find the respondent harshly and unfairly dismissed the applicant from her employment on 2 November 2004.

[54] By nature of the breakdown in the working relationship, reinstatement or re-employment are not practical options.

ORDERS

I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, Brandon Raynor Naturopath pay Emily Louisa Ross the following:

1.

Employment period: 9 March 2004 to 2 November 2004, inclusive.
i.e. 239 days = 34.14 weeks
Pay rate $570 per week ($15/hr X 38hrs)
Overtime applied to each week except 1 week attending the course i.e. 33.14 weeks

      $
    Course attendance 1 week @ $570  570.00
    Overtime 2hrs/wk for 33.14 wks @$15/hr x 1.5 1491.30
    Less single time paid, 2hrs/wk for 33.14wks @$15/hr (994.20)
    Payable for salary and overtime 1067.10
       
    Compensation for harsh and unfair dismissal  
    3 months (13 weeks) salary @ $570/week 7410.00
       
    Total $8477.10

The above amount of eight thousand four hundred and seventy seven dollars and ten cents ($8,477.10) to be paid to Emily Louisa Ross no later than 5.00 pm on Monday, 19 February 2005.

2.

Outstanding superannuation: period 1 July 2004 to 2 November 2004, inclusive
i.e. 125 days = 17.86 weeks
>.09(rate) x 17.86 x $570/wk

                                                                        $

    Total                                                                916.07

The above amount of nine hundred and sixteen dollars and seven cents ($916.07) to be paid into Emily Louisa Ross' nominated superannuation fund by no later than 5.00 pm on Monday, 12 February 2005.

 

James P McAlpine
COMMISSIONER

Appearances:
Mr M Rapley, Page Seager, Barristers and Solicitors, for Emily Louisa Ross
Mr Thane Brady, Tasmanian Chamber of Commerce and Industry Limited for Brandon Raynor Naturopath

Date and place of hearing:
2004
December 21
Launceston

2005
January 7
Launceston

1 Exhibit A.1
2 Transcript, para 903
3 Transcript, para 408
4 Transcript, para 904
5 Transcript, para 413
6 Transcript, para 414
7 Transcript, para 433
8 Transcript, para 925