T12466
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Decision under appeal TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Georgina Margaret Taylor and Classic Video Pty Ltd t/a Video City
Industrial dispute - alleged unfair termination of employment - order issued REASONS FOR DECISION [1] On 12 December 2005, Georgina Margaret Taylor applied, pursuant to s.29(1A) of the Industrial Relations Act 1984 ("the Act"), for a hearing before a Commissioner in respect of an industrial dispute with Classic Video Pty Ltd t/a Video City ("the company") arising out of the alleged unfair termination of her employment. [2] A hearing commenced at the Supreme Court, Cameron Street, Launceston, Tasmania on Monday 30 January 2006 Ms Taylor represented herself, and Ms J Branch appeared on behalf of the company. Ms Branch told the Commission that she did not have "the authorisation" to make any major decisions on behalf of the company and that she had received no instructions about anything affecting a possible settlement to the dispute and that she had received no instructions in regard to jurisdictional matters and the ability of the Commission to hear the matter. BACKGROUND [3] Ms Taylor commenced work as a full time library attendant with Classic Video at the Mowbray store on 25 August 2005. On Tuesday 22 November she received an email requesting that she meet with the owner/manager, Mr Terry Ewing, on the following day. Ms Taylor claims that she was given no reason for the meeting. [4] At the meeting on 23 November she was dismissed on the basis that a three months probation period would expire on, she was told, on the following day. Mr Ewing had decided not to offer her a position. [5] The employment was terminated one day before the probationary period would have ended. [6] The employee was paid no notice. She claims that she was given no reason for the termination of employment. MS TAYLOR'S STATEMENT [7] Ms Taylor told the Commission that Mr Ewing said that there had not been a problem with her work and that, according to an agreement she had entered into, he did not have to give her an explanation for her dismissal. After insisting upon being given a reason, she says that Mr Ewing told her that she had little computer experience. [8] According to Ms Taylor, Mr Ewing told her that she had learned a lot, but that he would not extend her training period. [9] She said that another trainee staff member had provided the only training that she received. [10] Ms Taylor claims that Mr Ewing said to her: "The decision has been made that you not go past today"1. He then gave her a folded form and requested that the store keys be returned and told her that her wages would be withheld until she completed the form and returned it with any work property, including the uniform, which must be dry cleaned at her expense. [11] The form that she was given was a resignation form.2 She eventually signed the form because she had received no notice, had no work and had no income. [12] Ms Taylor said that she believed she should have been given notice. She had left reliable employment to take up the position with Classic Video, had expended $360 for the required drivers' licence, had purchased suitable trousers at her own expense and had paid half the cost of two uniform shirts, which were returned, dry-cleaned, to the company. [13] When she was eventually paid she was not refunded the uniform costs and $7.13 was deducted from her pay, she was not sure exactly what for. MS BRANCH'S RESPONSE [14] Ms Branch apologised for her lack of knowledge in this area and said that she had only been given notice a week before about the hearing and was not really sure of the procedure. She had only been appointed as Assistant Supervisor a short while before the hearing. She said that she had been "thrown in the deep end with it all".3 [15] She had been told by Mr Ewing to come along and to present copies of whatever he gave her. She said that she had never done this before and so "I am a little out of my element"4. [16] Ms Branch referred the Commission to the "contract" [Australian Workplace Agreement], in particular, the probationary provisions:
[17] She said that people were told to take the agreement home and carefully read it before signing. They were also told that the position is not guaranteed and is only for the probationary period. [18] Ms Branch said that there were reasons why Ms Taylor's employment was terminated and that she was given adequate training. Ms Taylor was not coping well in the workplace and she had been given ample notice of what she was doing wrong. Ms Branch believed that she had been dismissed for poor performance. FINDINGS [19] There was an attempt to settle the dispute through the conciliation process, which was unsuccessful because the respondent's representative had no authority to make any offers of settlement in relation to the matter. [20] This hearing was unusual in that the respondent was represented by a young woman who had no instructions in relation to the proceedings, no experience in matters such as this, and who, through her own statements, had no direct knowledge of the events. No jurisdictional matters were raised as a bar to the Commission determining the matter.
[21] Section 28 of the Act provides:
[22] The applicant had signed a document titled "Australian Workplace Agreement"7. Whilst there was no evidence before me that the document had been registered with the Office of the Employment Advocate, I note that as a probationary employee with less than three months' service Ms Taylor would not have access to a remedy for unfair termination of employment in the Australian Industrial Relations Commission, and that S.30(A) of the Tasmanian Act would apply. [23] Nonetheless, the agreement between the parties has some weight. It was argued by the respondent that a probationary employee can be dismissed at any time without the giving of a reason or the giving of notice. [24] The agreement certainly states that no reason is required to be given, but the probationary clause is silent on the question of notice. Clause 31 - Termination of Employment says:
[25] I find that the termination was procedurally unfair. There is insufficient evidence to make a determination as to whether or not the applicant's performance was so poor as to warrant the termination of her employment, but even if it were, the termination was procedurally unfair in that no formal warnings were issued, no notice was given, the applicant was not informed in advance of the reason for the meeting at which she was terminated, the decision to terminate was made in advance of the applicant being given the opportunity to put her case and she was not given the opportunity to be represented. [26] I have decided that the remedy in this case should be the payment of two weeks' wages. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T12466 of 2005 that Classic Video Pty Ltd trading as Video City pay to Georgina Margaret Taylor the sum of One Thousand Dollars and Seventy Two Cents by close of business on 18 May 2006.
P C Shelley Appearances: Date and place of hearing: 1 Transcript PN67
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