T12468
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Aaron Butterworth and Breadd
Industrial dispute - termination of employment alleged breach of award - application dismissed REASONS FOR DECISION [1] On 13 December 2005, Aaron Butterworth (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 Breadd arising out of the termination of his employment and alleged breach of award. [2] This matter was listed for a hearing (conciliation conference) on 16 January 2006, and further listed for a hearing on 23 March 2006. The applicant was self-represented. The employer was represented by Mr L Banks-Gorton. [3] Mr Butterworth commenced employment as an apprentice baker on 11 June 2001. At the time of termination Mr Butterworth had completed the term of his apprenticeship although certain aspects of the TAFE training remained incomplete. [4] Mr Butterworth was terminated by the employer on 13 December 2005 in circumstances which he submitted were unfair. Mr Butterworth seeks the following outcome: · One weeks pay in lieu of notice. · Reimbursement of $500 deducted from termination pay · Unspecified compensation. [5] Both Mr Butterworth and Mr Banks-Gorton made sworn statements and were subject to cross-examination. [6] The employer took sworn evidence from the following witnesses: · Katherine Jane Banks-Gorton, wife of Mr Banks-Gorton and in charge of payroll. · Ersin Akpinar, an employee of Breadd throughout Mr Butterworth's apprenticeship. · James Christopher Cockburn, employee of Breadd. Circumstances of 13 December 2005 [7] From an analysis of the evidence of both Mr Butterworth and Mr Banks-Gorton, the following is a reconstruction of events on that day and immediately following. [8] Mr Butterworth commenced work at either 5.00am or 7.00am. He was required each day to undertake certain deliveries. On this particular day he overlooked a delivery to a local shop. Mr Banks-Gorton said this was a regular occurrence. Mr Butterworth acknowledged that he had not delivered the product but said:1
[9] Later that morning (possibly around 10.00am) Mr Butterworth approached Mr Banks-Gorton asking if he would like him to work overtime that day. Mr Banks-Gorton said he responded with alacrity, as the shop was extremely busy and Mr Butterworth's offer would avoid the necessity to get his wife to come in or engage a casual. [10] At 12.30pm (his normal finishing time) Mr Butterworth informed Mr Banks-Gorton that he did not wish to stay on and work overtime. Mr Banks-Gorton, who was serving a customer at the time, asked him to wait for a short period as he wished to speak to him. Mr Butterworth's recollection of the conversation that followed was:2
[11] Mr Banks-Gorton's recollection of events was:3
[12] Mr Akpinar was present at the time and said that "Lee tell him to - he's got two weeks notice." [13] It is not entirely clear from the evidence whether Mr Akpinar actually heard the conversation, or was relaying what Mr Banks-Gorton had told him. Mr Akpinar was quite specific about "two weeks" notice, whereas Mr Banks-Gorton's evidence only referred to "notice", not a period of notice. [14] Mr Butterworth left the employer's premises and went to the Tasmanian State Training Authority (TASTA). [15] According to Mr Banks-Gorton, approximately one hour later the "Apprenticeship Board rang up and they said, `We have got Aaron here, he doesn't want to come back, would you be interested in an early release?' " [16] Mr Banks-Gorton agreed to the early release, and the appropriate form was faxed to him at 3.43pm that day. Mr Banks-Gorton went on to say:4
[17] Mr Butterworth said that he was under the impression that he was sacked on the spot. Background Material [18] Mr Banks-Gorton described the employment relationship as a "very, very bad four years of my employer experiences". He said that throughout the term of his employment Mr Butterworth had demonstrated a negative attitude which was bad for staff morale. [19] There was evidence presented as to a previous incident involving unauthorised removal of the employer's product. Mr Banks-Gorton said he did forgive him on that occasion on the basis that Mr Butterworth "apologise to all the other staff members, you have let them down". [20] The thrust of the evidence of Mr Akpinar and Mr Cockburn was that Mr Butterworth was unreliable, moody and had a negative impact on staff morale. [21] Mr Butterworth said that Mr Banks-Gorton would at regular intervals "take his stress out on me and say that he was sick of me and threaten to sack me, but always talked things through and settled the matter the next day when Lee calmed down". [22] He said that Mr Banks-Gorton had previously said he "could sack me on the spot if I refused (to work overtime)". [23] Mr Butterworth said he had an expectation of continuing employment, and that there had been some discussions with Mr Banks-Gorton concerning the possibility of Mr Butterworth managing his own shop. The $500 Loan [24] It was common ground that over the period of employment Mr Banks-Gorton had extended a number of loans to Mr Butterworth, which totalled $500. This amount was deducted from his termination pay, which Mr Butterworth said was not authorised. [25] Mr Butterworth agreed that the money had been loaned to him and it had not been repaid. However he said that following an argument, Mr Banks-Gorton had said "No, that's it, we will wipe the slate clean and start again." And that included the loan, so that's why I believe that I am still owed the money." [26] Mrs Banks-Gorton said that a request for a further loan had been denied on the basis that Mr Butterworth had made no effort to repay the existing loan. When the matter was discussed, Mr Butterworth had allegedly said that he didn't have to pay because "nothing was in writing". [27] Asked whether there was any discussion as to how and when the loan was to be repaid, Mr Banks-Gorton said:5
[28] Mr Banks-Gorton denied that he had agreed to "wipe the slate clean" so far as the loan was concerned. Findings [29] I deal firstly with $500 loan issue. [30] I have no hesitation in finding that a series of loans totalling $500 had been extended to Mr Butterworth and not repaid. There is no convincing evidence that Mr Banks-Gorton ever forgave the loan. [31] There is certainly some doubt as to whether the employer could legally deduct the $500 from the termination payment. However the only evidence presented as to repayment arrangements was that each loan was to be repaid the following week, when Mr Butterworth was paid. This arrangement, assuming it existed, was clearly not honoured. [32] Irrespective of what order the Commission made, Mr Butterworth would still owe the $500 to Mr Banks-Gorton. [33] In the circumstances and given the lack of clarity as to repayment arrangements, I am not prepared to make the order sought by the applicant. [34] I now turn to the termination of employment component of the application. [35] Taken in isolation, Mr Butterworth's conduct on the day of termination, was not such as to warrant termination. [36] I am, however, prepared to accept that in Mr Banks-Gorton's eyes, the incident, or incidents, amounted to the proverbial straw that broke the camel's back. [37] There was evidence of a long running unhappy and indeed unsatisfactory employment relationship. "Attitude" is concept which is difficult to define, but is nonetheless very real, particularly in a small business environment where teamwork is of the utmost importance. It is very clear that Mr Banks-Gorton considered that Mr Butterworth had an attitude problem, which was counterproductive to a team environment and the consequent success of his business. [38] There is equally a responsibility on the employer to demonstrate respect towards employees and attempt to manage behavioural and performance issues. Some of the threats and comments allegedly attributed to Mr Banks-Gorton, if true, were inappropriate. [39] I have reached the conclusion that there is little value in addressing fine points of law as to whether proper notice was given, whether there was an obligation to work out the notice period, or whether some form of compensation is justified. Neither party is blameless for the events of that particular day. [40] It would seem that Mr Butterworth now holds a trade certificate and gained full-time employment shortly thereafter. That is to his credit. [41] I have no doubt that the interests of both parties are best served by putting this unhappy employment relationship behind them and moving on. I am not prepared to make an order in favour of the applicant. [42] The application is dismissed. I so order.
Tim Abey Appearances: Date and Place of Hearing: 1 Transcript PN 14
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