T12294
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Allan Raymond Smith and Chubb Security Personnel
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
[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
[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
[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:
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 Appearances: Date and Place of Hearing: 1 Transcript PN 66
|