Department of Justice

Tasmanian Industrial Commission

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

T12266

 

TASMANIAN INDUSTRIAL COMMISSION

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

Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch
(T12266 of 2005)

and

Cleenco

 

COMMISSIONER T J ABEY

HOBART, 23 November 2005

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

"Now, in relation to leaving early why did you leave early on those two days?---Well, it was just basically common practice once we'd finished and everything was put away and locked down if it was only a matter of a few minutes then it was okay to do so.

You say it was practice for that to happen?---Basically, yes.

And how did you understand it was practice for that to happen?---Well, basically I was told most of the time by the supervisor if there's only a few minutes to spare yes, take an early minute.

You say you were told by the supervisor?---That's correct.

Who was the supervisor?---Wayne Court.

So you are saying that Mr Court advised you that if you finished your work and there were only a few minutes to go you could leave early?---That's correct.

Yes. Now, do you recall how many times Mr Court might have said that to you during the time you were employed?---Probably three to four times, perhaps."

[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

"Now, did you have a discussion with Mr Court some time around 25 August about cleaning at the change rooms at Lindisfarne?---Yes.

Yes. And what was the gist of that conversation?---It was basically that the contract was up for renewal, Cleenco wanted to keep it, and they had nothing on for the rest of the day and to take my time and to give it a thorough detail.

Right. So did you follow that request?---Yes, I did.

Yes. At approximately what time did the conversation take place?---Oh, 10 past 6 on that morning."

[17] And later, under cross-examination:4

"There was only two change rooms out of the six that had been used on the evening of the 24th?---That's right.

So could you just justify to me how come it took you the same time on the 25th as it did on the 24th when you did periodic scrub the floors - the concrete floors in two of the change rooms - - -?---Because I was asked to.

- - - and detailed - as you were asked to do, detailed on the 24th which - to spend three hours there, how come it took you approximately two-and-a half hours to do two change rooms on the 25th?---No, I did the whole lot because I was asked to detail them and give them a thorough go because you had nothing else on that day and that's where I used up the time, and that was from Wayne Court.

And that was from Mr Court?---At 10 past 6.

Okay. Well, I disagree completely with that?---Well, you can disagree to the very - - - "

[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.

"... Mr Harley would take it on himself to do basically whatever he wanted when he wasn't supervised."

[25] Mr Crowther's final submission is well summarised in the following statement:5

"Okay, I'd basically just like to say as we run a very tight business and my position - obviously, I need my employees to be trustworthy and honest and work together as a closely knit team. Since Mr Harley was employed we have had numerous confrontations about small, petty things, which has been - I'd class as petty things in the past that were, you know, that we never have any trouble with, with any other employees, to be flexible and stuff like that. As for different things that Mr Harley disagrees with me, I suppose basically apart from what's there in his own handwriting, is basically his word against mine.

Well, you need to state what your position is on those incidents?---Well, my position is that four times in 10 days he's falsified his time sheet, disposed of his time sheet. In my opinion, that's an admission of guilt, in my opinion, on the first week. As for his duties - which has been explained - other employees have done exactly the same sites and same amount of work and in, you know, my opinion, Mr Harley just - when he's not supervised just takes things on himself as numerous occasions in Argyle Street Car Park where - just take on the other person's duties to suit himself through the day, which is, you know, I can't be there or - in a small business, which I have got or which we have got, I can't expect a supervisor or anyone else to be there on site on every job that he is doing to make sure he's doing the job properly in the time scope. As per the duties he's given - as per Lindisfarne, I mean, it's just totally unnecessary for the - the explanation that he gave for the day that he was observed. And I would like to put, it's not a normal practice to observe staff like that, it was only the fact that he was taking the same time to do one site as he was to do both sites. As for leaving at 10 o'clock and stuff like that, I mean, that was taken upon himself, he wasn't told to leave at 10 o'clock on that day, his duties are to be at Argyle Street till 11 o'clock. Yes, and just basically put up with numerous occasions and warnings about different things through the 11 months and it's just been a total agitation for 11 months, basically. And the final straw was the dishonesty with the time sheets because I just can't afford to be there every day."

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
COMMISSIONER

Appearances:
Mr P Tullgren for the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch
Mr S Crowther for Cleenco

Date and Place of Hearing:
September 22
October 19
Hobart

1 Transcript PN 35 to 41
2 Transcript PN 134/5
3 Transcript PN 180 to 183
4 Transcript PN 268 to 272
5 Transcript PN 424/5