T12266
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch and Cleenco
Industrial dispute - alleged unfair termination of employment - termination unfair - reinstatement impracticable - compensation ordered REASONS FOR DECISION [1] On 5 September 2005, the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch (LHMU) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Cleenco arising out of the alleged unfair termination of employment of Tony Harley. [2] This matter was listed for a hearing (conciliation conference) on 22 September 2005, and listed for hearing on 19 October 2005. Mr P Tullgren appeared for the LHMU. Mr S Crowther appeared for Cleenco. [3] Mr Harley commenced employment as a full-time Cleaning and Property Services Employee on 18 September 2004. His employment contract was summarily terminated on 25 August 2005. The applicant asserts that he was unfairly terminated and seeks compensation. [4] During the hearing Mr Harley gave sworn evidence. Mr Crowther made a sworn statement and was subject to cross-examination. [5] There were a number of issues that appeared to play some part in the employer's decision to terminate the contract of employment. [6] It was common ground that Mr Harley left work early on both 18 and 19 July 2005. Mr Harley said on one occasion it was five minutes early and two minutes on the other occasion. Mr Crowther suggested it was more like 10 minutes. Mr Harley's time sheet indicated that he finished at the normal finish time (2.30pm). [7] Subsequently Mr Crowther made a notation on the time sheet. It transpired that Mr Harley removed the time sheet and replaced it with a corrected version. [8] Mr Harley's explanation was as follows:1
[9] On 25 July Mr Harley claimed an extra 15 minutes on his time sheet, stating that his vehicle had been "blocked in" by a fellow employee. Mr Crowther said that the same employee had put 2.30pm finish on his time sheet that day. Mr Harley responded by stating the employee in question filled out his time sheet in the morning and put 2.30pm every day. [10] Mr Crowther said that on 28 July Mr Harley was not present when he arrived at the depot at 2.25pm, notwithstanding that 2.30pm was on the time sheet. Mr Harley denied that this happened. [11] A regular component of Mr Harley's duties was cleaning the change rooms at the Lindisfarne sports grounds. He said this task normally took between one hour and one hour 20 minutes, depending on what needed to be done.2 [12] On 24 August Mr Harley was instructed to spend three hours on the change rooms so as to do a particularly thorough job. It was explained that this was motivated by an imminent review of the contract. [13] On 25 August Mr Harley again went to the Lindisfarne change rooms. He was not aware that Mr Crowther was watching the site from his vehicle, parked some distance away. It is clear from the evidence that Mr Crowther had a clear view of Mr Harley when he was outside the rooms, but could not see what was happening inside. [14] Mr Crowther said he undertook the surveillance because he was concerned as to the time taken by Mr Harley over the previous six weeks to complete this task. He said that Mr Harley was taking as long to do Lindisfarne as he did to clean both Lindisfarne and Wentworth Park, prior to the ending of this latter contract. [15] On 25 August Mr Harley was at the Lindisfarne change rooms for 2.5 hours. Mr Crowther submitted that a further consideration was that the change rooms had been thoroughly detailed the previous day, and only two out of six change rooms were used on the Thursday evening. [16] Mr Harley said by way of explanation:3
[17] And later, under cross-examination:4
[18] Mr Crowther and Mr Harley met at the depot at approximately 2.20pm that same day. Both the time taken to clean the change rooms and the previous time sheet issues were raised in what Mr Harley said was an increasingly aggressive meeting. [19] According to Mr Harley the meeting concluded with Mr Crowther saying "I want you to finish up right now". Closing Submissions Mr Tullgren, for the applicant: [20] The events used to ground the dismissal either individually or collectively do not constitute misconduct. [21] According to the evidence the supervisor, Mr Court, had sanctioned the early finishes. Further Mr Court had on 25 August instructed Mr Harley to spend additional time on detailing the change rooms. Mr Crowther was not present when these conversations took place, and no counter evidence had been presented. [22] There had been a breakdown in the employment relationship and as a consequence, reinstatement was impracticable. There was no evidence to suggest that Mr Harley's employment could not have continued indefinitely and therefore compensation in the form of 12 weeks' wages was an appropriate remedy. Mr Crowther, for the employer: [23] There were four time sheet discrepancies in a 10-day period and Mr Harley had "disposed" of one of the offending time sheets. [24] During his period of employment there were constant discrepancies and warnings.
[25] Mr Crowther's final submission is well summarised in the following statement:5
Findings [26] I have no doubt that Mr Crowther genuinely considered Mr Harley to be a less than satisfactory employee. Mr Crowther felt that he could not trust Mr Harley, particularly when he was in an unsupervised situation, which on the evidence was most of the time. [27] Whilst there had clearly been a number of incidents that caused Mr Crowther aggravation, there was not, however, any evidence of a formal (or indeed informal) warning from which Mr Harley could have concluded that his position was in jeopardy. [28] In relation to the incidents whereby Mr Harley left work early, the evidence was that this practice was reasonably commonplace and indeed had been informally approved by the supervisor, Mr Court. [29] In relation to the Lindisfarne change rooms issue on 25 August, the evidence was that Mr Court had, earlier that same day, instructed Mr Harley to spend the additional time on cleaning the change rooms. [30] No counter evidence was produced other than Mr Crowther stating that he disagreed with that which had been put forward. [31] Mr Court was present throughout the proceedings. His evidence may well have been critical, but he was not called. I therefore must accept the evidence of Mr Harley. [32] The remaining two time-keeping incidents on 25 and 28 July were contested by Mr Harley and lack certainty as to what actually happened. It would be unsafe to make a finding of misconduct sufficient to justify termination, based on these two incidents in isolation. [33] In relation to the remaining issues, based on the evidence before me, Mr Harley's behaviour had either the implicit approval of the employer, or he was acting on a specific instruction of the employer. [34] To be summarily dismissed in such circumstances amounts to an unfair termination. [35] I am satisfied on the evidence that the employment relationship has irretrievably broken down and reinstatement is impracticable. [36] Mr Tullgren submitted that there was no evidence to suggest that the employment contract would not have continued indefinitely. I disagree. Issues were clearly coming to a head and, but for the termination, I doubt that the employment would have continued for longer than a few weeks. [37] In my view the appropriate level of compensation is an amount equivalent to three weeks' wages. ORDER Pursuant to s 31 of the Industrial Relations Act 1984, I hereby order that Cleenco pay to Tony Harley an amount equivalent to three weeks' wages, such payment to be made not later than 5.00 pm on Thursday 15 December 2005.
Tim Abey Appearances: Date and Place of Hearing: 1 Transcript PN 35 to 41
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