T12102
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tanya Louise Atkins and Tasmanian Canine Defence League Inc
Industrial dispute - alleged unfair termination of employee - alleged failure to observe policies and procedures - procedural fairness - order made REASONS FOR DECISION [1] On 30 May 2005, Tanya Louise Atkins (the applicant) 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 Tasmanian Canine Defence League Inc [the employer] arising out of the termination of her employment. Mr B. Trafford sought and was granted leave to appear for the applicant. Mr S. Cornish of the TCCI appeared for the employer. [2] Ms Atkins commenced employment as an animal attendant at the Burnie Dogs' Home on 28 February 2005. Immediately prior to this appointment Ms Atkins had worked at the home in a volunteer capacity for a month or so. [3] On 6 May 2005 Ms Atkins was summarily terminated following an incident that occurred on 4 May. There was no letter of termination tendered into evidence. However in a newspaper article, which was not challenged as to accuracy, the State General Manager of the Canine Defence league was quoted as stating:1
[4] This matter was initially listed for a conciliation conference on 16 June 2005. At that time there appeared to be some prospect of settlement, although in subsequent negotiations this did not materialise. Subsequent attempts to have the matter re-listed became something of a saga, given the unavailability of both parties at various stages. Suffice to say that the delay in bringing this matter to finality is quite unacceptable and in the ordinary course of events should have been completed at least six months ago. The Commission is not apportioning blame or criticism for this delay, other than to observe that an expeditious hearing process best serves justice. Extension of Time Application [5] The termination occurred on 6 May 2005. The application was dated 27 May and received in the Commission on 30 May. Mr Cornish contended as a preliminary matter that the application was out of time. I made an ex tempore decision granting an extension of time. I now provide brief reasons for this decision. [6] 27 May 2005 was a Friday. It was also the 21 days after the date of termination. [s29[1B]]. The application was lodged by post and received on Monday 30 May. According to s 29[4] of the Acts Interpretation Act 1931, the application was probably one day out of time. [7] The application could, and should, have been sent by facsimile. The fact that it was not is clearly representational error. I was persuaded to grant the application for extension for the following reasons. 1. The applicant did nothing wrong. She sought legal advice in a timely manner and was entitled to rely on the actions of her legal representative. 2. The respondent did not raise the preliminary issue until a few days before the final hearing, despite the long running nature of the case. 3. The application was only one day out of time. 4. There was no evidence of any prejudice to the employer if the application was granted. 5. In all the circumstances it would have been unfair to deny the applicant the opportunity to put her case. [8] In granting the extension I emphasise that that the "exceptional circumstances" test is more onerous than the general discretion allowed in many other statutes, and that the Commission expects time limits to be complied with. Evidence [9] Sworn evidence was taken from the following witnesses:
Events of 4 May 2005 [10] This case revolves around a dog named "Blackie" who had been impounded on a court order for allegedly being a dangerous dog. The case had been listed for hearing in the Burnie Magistrates Court on that day. [11] Ms Atkins said:2
[12] In the absence of the two co-managers, Ms Holland was the supervisor or Duty Manager for the day. Her evidence in relation to this conversation was as follows:3
[13] In a written statement, apparently prepared soon after Ms Atkins' application was lodged, Ms Holland elaborated as follows:4
[14] Ms Holland denied that she had referred to D Day as "destruction" day. [15] It transpired that the magistrate fined Mr Lowery, recorded convictions, but determined that he required further evidence about the dog's behaviour and arrangements for its future control before deciding its future on May 16. [16] Immediately following the court case, Ms Vowles, an Advocate photographer [Mr Cross], Mr Lowery, and his solicitor [Mr Trafford] went to the dogs' home. They were allowed entry by Ms Atkins, who escorted them into the pound area. [17] Only Mr Lowery was allowed to enter Blackie's pen, whilst Mr Cross took photos from outside. Ms Vowles and Ms Atkins said the gate was closed whilst Ms Holland said it was open. [18] Asked what happened next, Ms Atkins said:5
[19] Ms Vowles said that no staff member raised any objection to Mr Lowery being in the pen with his dog, nor raise any safety concerns. [20] Ms Holland said that she was not initially aware that media representatives were present. [21] Ms Holland's account of events is as follows:6
[22] Under cross-examination Ms Holland said:7
[23] After the group had left, Ms Atkins telephoned Ms Walsh [co manager] and advised that the Advocate had been present. [24] In relation to allowing Mr Lowery to enter the pound, Ms Atkins said:8
[25] Ms Atkins said she was not aware the Advocate people were coming9 and she had not been previously told not to allow journalists into the dogs' home.10 Meeting on 6 May 2005 [26] The following day Ms Atkins was contacted by Ms Walsh. Ms Atkins said:11
[27] Present at the meeting were Ms Walsh, Ms Charlton and Ms Atkins. Ms Charlton took notes and Ms Walsh "did most of the talking." Ms Atkins said she was "pretty upset and in the middle of having another asthma attack and yes, it was a pretty stressful moment." [28] Ms Atkins further recounted:12
[29] Ms Atkins said she was not given the opportunity to explain her actions. However under cross-examination she said:13
[30] Ms Charlton's recollection of the meeting was as follows:14
[31] Ms Charlton's handwritten notes of the meeting were tendered into evidence and are reproduced below.15
[32] Ms Charlton said the reasons given to Ms Atkins for her dismissal was failure to follow policies and putting people at risk by entering a no access area. [33] Ms Charlton said that Ms Walsh had been instructed by the State Manager to fire Ms Atkins.16 She said:17
Knowledge of Policies, Training [34] Ms Atkins Position Description18 lists as essential qualifications/experience: · Empathy with animals and a genuine respect for their welfare. · Current Drivers Licence and own transport. [35] Listed among the desirable qualifications/experience is: · An understanding of the role and policies of the TCDL. [36] A Volunteer Induction Questionnaire completed by Ms Atkins contained the following:
The policies applicable to the home are contained in a manual that is approx 100 pages long. The manual is located in the office, and according to Ms Charlton, staff are encouraged to "refer to these policies and procedures." [37] Ms Atkins said she was allowed to take the manual home for one night. Her evidence was that she only managed to read the first five or ten pages. She said:19
[38] Ms Atkins said she asked to take the manual home again but this request was denied.20 [39] There are three specific policies relevant to this matter. Access to Pound Section21 [40] This policy states that only staff members are permitted 'general access to the pound area." [41] The policy then lists the exceptions to this general rule and relevantly includes the following:
Court Case Dogs.22 [42] Relevantly, this policy includes the following:
Media Involvement.23 [43] This policy is reproduced in full.
[44] Ms Atkins said she had not read any of the policies referred to above, nor had they been brought to her attention.24 [45] Ms Charlton acknowledged that she was not aware of all the policies,25 and was only "somewhat" aware of the policy concerning media involvement. Findings [46] As best as can be ascertained Ms Atkins was terminated for not following policies and procedures. It would seem from the evidence that the policies that were allegedly breached related to allowing the owner of court order dog to enter the pound area, together with a breach of the policy concerning media involvement. [47] I deal firstly with the policy manual. [48] In my view it is quite unrealistic to expect staff, and in particular Ms Atkins to be familiar with the policy details in a 100-page policy folder. According to the evidence Ms Atkins was allowed to take the folder home on one occasion only. Through her own domestic circumstances she was unable to read more than the first five or ten pages and was denied the opportunity to take the folder home again. Even senior staff conceded that they were not familiar with all aspects of the written policies. [49] There was no evidence of any specific training in relation to the policy manual and Ms Atkins' unchallenged evidence was that she had not seen the three policy documents in question. [50] There is nothing wrong with having a policy manual available for reference. However if management expects precise compliance with a written policy, then there is a clear responsibility on the employer to bring it to the attention of staff in a specific manner. This is particularly pertinent in the case of a staff member who had only been employed for a period of two months. [51] I conclude that any breach of the media policy on Ms Atkins part was quite inadvertent and certainly did not involve any conscious intent to bring harm to the dogs home. Indeed the opposite was the case. [52] The issue of allowing Mr Lowery to visit his dog is not so clear. I am satisfied on the evidence that there is not a blanket prohibition on anyone but staff entering the pound area. It is clear that under certain circumstances dog owners, dog walkers, volunteers and council inspectors may enter the pound area. Indeed Ms Atkins said that she had on a number of occasions escorted Mr Lowery to Blackie's pen. [53] The evidence of Ms Holland was that she specifically instructed Ms Atkins that no one was to enter the pound section that day "in case the outcome of the case was not favourable for the dogs owner." [54] Ms Atkins' understanding of this instruction was that "Robert wasn't allowed in the pen if the court case went bad." [55] Whilst I tend to accept that Ms Holland's instruction did amount to a blanket prohibition, given the words used, the construction placed on the instruction by Ms Atkins was not beyond contemplation. It was certainly an explanation that should have been taken into account by management. [56] There are at least two aspects of the termination interview that were quite inconsistent with procedural fairness. [57] Firstly, Ms Atkins was not offered the opportunity to be assisted by another person of the employee's choice. This is a clear statutory requirement [s 30[8]] and was particularly pertinent given the evidence as to Ms Atkins state of stress at the time. [58] Secondly the persons conducting the interview were clearly under instructions as to the outcome and no explanation would have made any difference. [59] Mr Cornish acknowledged that procedural fairness "was a bit lax" but submitted that in any event, Ms Atkins made no attempt to offer an explanation for her actions. [60] I suspect that this was not the case. Ms Charlton's notes of the meeting contain the following:26 "Court case bad - not allowed in there - didn't turn bad." [61] This short hand version of Ms Atkins' response at the time is entirely consistent with her evidence as to the nature of the instruction given by Ms Holland. It should have been considered. [62] There can be no doubt that Ms Atkins made an error of judgement. It was not however an action intended with any malice. Nor, given the amount of time taken by Ms Holland in assessing the situation, could it be described as particularly reckless, although clearly safety issues were involved. Taking into account the totality of the evidence I find that there were circumstances surrounding this event which leads me to conclude that summary termination was a quite disproportionate response. A warning, coupled with counselling and training, would in my view have been an appropriate outcome. [63] I conclude that Ms Atkins was unfairly terminated. [64] I turn now to the matter of remedy. [65] Whilst reinstatement/re-employment is the primary remedy, the effluxion of time alone suggests that this would be impracticable. [66] In terms of assessing compensation, I am prepared to accept, although it was not beyond doubt, that Ms Atkins was part way through a probationary period. Whilst this matter concerned an allegation of serious misconduct rather than a performance issue, the probationary component of the contract of employment, is a factor which must be considered in assessing the remuneration Ms Atkins might have received, but for the termination. I am also required to take into account length of service, which in this case was quite short. [67] I conclude that the appropriate level of compensation to be three weeks wages. Order [68] Pursuant to section 31 of the Industrial Relations Act 1984, I hereby order that the Tasmanian Canine Defence League Inc pay to Ms Tanya Louise Atkins an amount of one thousand one hundred and thirty three dollars [$1133], by way of compensation, such payment to made not later than 5 pm on 12 May 2006.
Tim Abey Appearances: Date and place of hearing: 1 Exhibit A1
|