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T12294

 

TASMANIAN INDUSTRIAL COMMISSION

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

Allan Raymond Smith
(T12294 of 2005)

and

Chubb Security Personnel

 

COMMISSIONER T J ABEY

 

HOBART, 28 October 2005

Industrial dispute - termination of employment - severance pay in respect of termination of employment as a result of redundancy - application for extension of time to lodge application - exceptional circumstances - application granted

REASONS FOR DECISION

[1] On 21 September 2005, Allan Raymond Smith 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 Chubb Security Personnel arising out of the alleged unfair termination of his employment and severance pay in respect of termination of employment as a result of redundancy.

[2] When this matter came on for hearing (conciliation conference) on 14 October 2005 and for hearing on 17 October 2005, Mr D Rees, solicitor, appeared for the applicant. Mr P Mazengarb, of the Tasmanian Chamber of Commerce and Industry Limited, with Mr P Bobar, appeared for the respondent.

[3] This is an application for an extension of time pursuant to s.29[1B] of the Act.

[4] Mr Smith's employment contract was terminated by his employer on 21 June 2005. The application alleging unfair termination was lodged on 21 September 2005, some 71 days out of time. For an extension of time to be granted, the Commission must be satisfied as to the existence of "exceptional circumstances" which justify an extension.

Background

[5] Mr Smith gave sworn evidence. He is 58 years old, and commenced employment as a security guard in 1990. In 1996 he was appointed to an inspector/supervisor role. In 2000 Mr Smith was appointed Operations Manager, a position he held at the time of termination. In this position he was 2 I/C of Tasmanian operations. His evidence was that at its peak, Chubb employed up to 120 staff in Tasmania. For the past two years the employment level had been in the region of 70 staff.

[6] On 20 June 2005 Mr Smith heard, via a Launceston supervisor who reported to him, that Mr Steve Sullivan, General Manager of Victoria/Tasmania "was coming over to Tasmania to dismiss me". Mr Smith sought to clarify the position with Mr Bobar, the State Manager, but this proved to be inconclusive. Mr Smith said that he had no prior warning of any restructure or that his job might be in jeopardy.

[7] On 21 June Mr Sullivan arrived in Tasmania and called Mr Smith to a meeting. Mr Sullivan gave Mr Smith "a piece of paper which stated the area in which the company was going", together with a letter of termination. He was advised to leave that day and to come back in a day or so to collect personal belongings. It would seem that Mr Smith was paid a redundancy payment in his termination pay.

[8] Mr Smith said he was "pretty disillusioned and you know, still asking the question why? And you know, because nothing was ever explained to me or anything, and I just couldn't understand why".

[9] Nonetheless Mr Smith's evidence was that he initially accepted the redundancy as being genuine. He said:1

"- at that time, what did you believe in relation to your employer's decision to terminate you?---Well, considering the way that the company is very big on ethics, because they push it very strongly through management and down through the workforce, I was natured to believe that ethically that basically, that's the way they were going. You know, I knew that we had had problems because of some contracts that we had lost, and because I was an indirect sort of thing, I couldn't be charged out to clients, that was probably a saving of somewhere around about $75,000 off the bottom line of the figure and so yes - so I naturally thought, oh well, that makes good sense, you know, if you're running a business.

[10] At some point in August Mr Bobar approached Mr Smith and encouraged him to apply for a position that was about to be advertised. He said:2

"And then did you - in your application, you have annexed a copy of an advertisement. Can you tell me about that?---Yes. During that time that I was doing this, I was approached by Mr Bobar, who said to me - he said, "We have a new position that's going to be advertised in Saturday's Mercury." He said, "I would like you to apply for the position." And he said, "It's important that you do a resume and that so that everything is above board." "

[11] The position, described as "Duty Manager", was advertised in the Mercury on 13 August. Mr Smith applied for the position.

[12] Mr Smith said that he previously performed all the duties outlined in the advertisement. He had in addition previously performed some administrative and payroll duties. He was aware that the position attracted a lower salary than his previous role, but was not aware of the actual salary.

[13] On or about 6 September Mr Smith approached Mr Bobar as to the progress of his application. His evidence in relation to this approach was:3

"MR REES: And were you told anything else about that position by Mr Bobar at a later date?---Yes. I called into his office and just inquired about whether or not they had made a decision on the position, and he said that - he said to me, "I've only - I've had a speak with Steve Sullivan today and he said that you can't really apply for it because you've been redundant and you have to be out of the workforce for three months before you can apply for any position with the company." And he also stated that Steve also commented that, "How am I going to explain this to the people in Sydney?" which is where the hierarchy of Chubb work from. He said, "How can I explain that to them after we've just paid you out?"

Okay. Did you respond or inquire - - -?---I said to Peter, I said, "Well, you know, I've roughly got about 14 days to go before those three months are up," and he said, "Yes, I never really gave that a thought."

Right. Was there any comments made about your ability to do the work?---No."

[14] Mr Smith said that following this advice he sought advice from the "Department of Labour and Industry" (presumably Workplace Standards Tasmania), Legal Aid and ultimately Mr Rees' legal firm.

[15] Mr Smith consulted Mr Rees on 10 September "and left it in your (Mr Rees) hands to investigate for me". They met again on 21 September and the application was lodged that day.

[16] The respondent did not call any evidence.

Closing Submissions

Mr Rees, for the applicant:

[17] Events subsequent to the termination suggest strongly that the redundancy was a "sham".

[18] As soon as Mr Smith became aware of the true position he took immediate action to seek relief.

[19] The conduct of the employer was reprehensible in a number of respects and in particular had not provided any opportunity for Mr Smith to offer input or consider alternatives. In this context he cited Corkrey v General Motors Holden Ltd4, which said that where there was a failure to consult with the employee or relevant union over the issue of redundancy, the whole process should be considered unfair and be set aside.

[20] There was no valid reason for termination and the applicant had a good prospect of success should the matter proceed.

[21] Any delay on his (Mr Rees) part was minimal and a consequence of lack of familiarity with recent case law on this subject.

Mr Mazengarb, for the respondent:

[22] The length of the delay was extensive.

[23] The redundancy was genuine and part of a large number of redundancies Australia-wide.

[24] The position as advertised in August is a different position to that previously held by Mr Smith.

[25] Whilst certain shortcomings as to process are acknowledged, they are not fatal to a conclusion that this was a genuine redundancy.

[26] In Levett & Ors v Brisbane City Council5 there were close parallels with the instant case. Bacon C said:

"The applicants submit that the respondent terminated their employment due to redundancy. Through various means the applicants in mid 1998 formed the view that the positions from which they were terminated still exist and had been filled by other employees and that the positions had not in fact changed in the way or to the extent that the applicants had been led by the respondent to believe would occur. Thus the applicants explain in part the cause of the delay to be that initially the applicants believed the redundancies to be genuine and they accepted them. However, by mid 1998 their views had changed and the applicants concluded that they had been treated harshly, unjustly or unreasonably.

Having reached this conclusion, the applicants sought advice. It is at this time that they discovered the statutory requirement to lodge applications within 21 days of the termination. The evidence of Mr Clarke (which was agreed by the applicants and the respondent would be taken as representative of all eight applicants) was not precise as to the time when they were first aware of the statutory limitation, however further evidence establishes that it was before and certainly no later than 17 September 1998 (Exhibit S1). On that day the applicants (through their representative) wrote to the respondent and, amongst other things, advised:

`Whilst of course, application to the Australian Industrial Relations Commission for suitable redress on that account is available to our several clients ...'

At that time the applicants were in the knowledge that redress could be sought in this Commission and that they knew that for most of them they were seven months outside the statutory limit for the lodgement of such an application. The applications were not lodged until 25 November 1998. Even if I was minded to accept the applicant's arguments up to 17 September, there is no adequate explanation or reason given for the further delay of 2 months before the applications were made."

Findings

[27] The considerations relevant to an extension of time application are discussed in Izard v RG Simons6 as confirmed by the Full Bench in Patch's Variety v Samantha-Jo Lewis7. I have applied such of these principles as are relevant to the instant case.

[28] The delay in lodgement was, on its face, extensive, and as such the applicant carries a heavy onus to demonstrate the existence of exceptional circumstances. There is however an explanation for this delay which carries considerable force.

[29] It is clear that Mr Smith initially accepted that the redundancy was genuine. It was the company which subsequently approached Mr Smith and encouraged him to apply for the soon to be advertised position. It was only when Mr Smith followed up on the progress of this application that he was informed of the arbitrary Three month policy.

[30] I am at a loss to understand the basis of this policy. Whilst such a policy might make sense in the case of voluntary redundancies, Mr Smith did not ask to be terminated. Indeed it came as a complete shock to him. It was the company that made the subsequent approach and hence it must be assumed that Mr Smith was considered competent to perform the role.

[31] I have reached the inevitable conclusion that Mr Smith's subsequent exclusion from consideration had far more to do with avoiding embarrassment with head office than it did with his capacity to perform the role.

[32] The parallels between this case and Brisbane City Council are acknowledged. There is however one important distinction. In the latter case the applicants, after becoming aware of the statutory limits, waited more than two months before lodging the application. In Mr Smith's case, he sought advice immediately he became aware of his disqualification. Indeed the time taken between this event and the ultimate lodgement of the application was comfortably inside 21 days. Perhaps Mr Rees might have acted a little more swiftly although his explanation was reasonable. In any event we are talking days, not months, as was the case in Brisbane City Council.

[33] I am satisfied that the applicant has made out a strong case as to the existence of exceptional circumstances. The application for an extension of time is granted and the matter will be re-listed on request from the applicant.

[34] In the meantime I urge the parties to enter into discussions as to the suitability of Mr Smith for the position as advertised. This would seem a more productive course, at least initially, than further litigation.

Tim Abey
COMMISSIONER

Appearances:
Mr D Rees, solicitor, E R Henry, Wherrett & Benjamin, Barristers & Solicitors, for Mr A R Smith
Mr P Mazengarb, of the Tasmanian Chamber of Commerce and Industry Limited, with Mr P Bobar, for Chubb Security Personnel

Date and Place of Hearing:
2005
October 14, 17
Hobart

1 Transcript PN 66
2 Transcript PN 80
3 Transcript PN 85 to 87
4 [1986] 53 SAIR 531
5 Print R0149 Bacon C. 21/12/1998
6 T11310 of 2004
7 T11860 of 2004