TASMANIAN INDUSTRIAL COMMISSION

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

Bruce Gregory Robinson
(T12545 of 2006)

and

Captain Fell's Historic Ferries

Industrial dispute - alleged unfair termination of employment

REASONS FOR DECISION

[1] On 12 February 2006, Bruce Gregory Robinson (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with Captain Fell's Historic Ferries (the respondent) arising out of his alleged unfair termination of employment; and alleged breach of award or registered agreement.

[2] The matter was listed for hearing on 7 March 2006 (Conciliation Conference) and 19 April 2006 at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania.

[3] Through Centrelink, the applicant participated in a WorkSkills Program, which gave him the opportunity to take up limited employment. As part of the program the applicant was employed as a Charter Coach Driver with Captain Fell's Historic Ferries from 7 December 2005. His employment status is unclear.

[4] On 22 January 2006, the applicant alleged he was unfairly dismissed from his employment. The applicant also asserted he was not paid penalty rates for working overtime, weekends or public holidays.

[5] The respondent contested that the applicant was a casual employee and that he was stood down, not terminated. The stand down was the result of an alleged behavioural change in the applicant that resulted in serious customer complaints. The stand down was to be enforced until the applicant produced a medical clearance certificate to assure his future behaviour. The respondent also asserted the applicant was paid over award wages.

[6] No witnesses were called. The respondent did not appear, however he supplied a statement detailing his response to the allegations.

BACKGROUND

[7] Following this matter being set down for a conciliation conference on 7 March 2006, the Commission received a communication dated 9 February 2006 from Mr Paul Kasz asserting he represented the respondent, outlining, allegedly, the respondent's position. There was no authority from the respondent to verify Mr Kasz's representation. Neither the respondent nor his, supposed, representative appeared at the conference. A copy of the conference transcript was forwarded to the respondent affording him the opportunity to comment.

[8] The Commission received correspondence from the respondent, dated 12 April, 2006, informing it that he would not attend the hearing. He asserted he feared for his own safety and that of his staff, business and home. He also undertook to explain his position regarding the instant matter.

[9] The hearing took place on 19 April 2006, again without representation from the respondent.

[10] The applicant asserted his employment was terminated on 22 January 2006, after customers had allegedly made complaints about his conduct. The circumstances of his alleged dismissal were not clear.

[11] At paragraph 17 of transcript, the applicant stated:

"... he went straight to the office and accused me of swearing at him, saying the F word, etcetera. I was told by the office lady in the office that I was sacked ..."

[12] However in his written application the applicant asserted:

"... Michael came and told me I was stood down ... Mr Fell told me at approx 3.30pm I was sacked ..."

[13] In his correspondence, the respondent asserted that the applicant had been "stood down" until a medical clearance certificate was obtained assuring his future behaviour. Various allegations regarding the applicant's state of health were made by the respondent in his submission, and in that of Mr Kasz. The applicant refuted the allegations.

[14] During the initial conference the applicant asserted his Centrelink caseworker, Mr Alex Burleigh, would appear before the commission and also refute the respondent's allegations. The applicant at the hearing did not call Mr Burleigh.

[15] The applicant was not sure of his employment status. He asserted he had never "signed anything", he had not been given a letter of appointment, nor had he received pay slips. He also asserted the respondent had never asked him for his Tax File Number. He asserted he was always paid cash in hand.

[16] The provision of accurate pay slips, the deduction of appropriate tax and keeping correct time records are all mandatory aspects of conducting a business. However, the resolution of respondent's alleged failure to comply does not fall within this jurisdiction.

[17] The applicant alleged that on the day he believes he was terminated, he had worked eleven days straight.

FINDINGS

[18] The effectiveness of the Commission in arbitrating the instant application has been hampered by the lack of cooperation by the respondent. Every allegation made against the applicant could have been supported by the appearance before the Commission of the respondent, the key employees cited and, a statement from Tasmania Police regarding the alleged public complaint against the applicant.

[19] The respondent's assertion that the applicant was "stood down" pending production of certification of acceptable medical condition can neither be substantiated nor refuted. However, I do note the respondent asserted there had been no problems with the applicant's performance until the last few days of his employment when his behaviour allegedly altered.

[20] The applicant's employment status was unclear. He was unable to furnish any documentation to establish his status. The dependence of any tour on customer numbers may, and the business seasonality imply, the casual nature of the driver's position. However, from his own assumptions, and the correspondence from the respondent, I find in all probability the applicant was employed as a casual driver, as needs required.

[21] The respondent has a duty of care to his customers as well as his employees. I accept if there was a suspicion of inappropriate behaviour he had to take action. As a casual the applicant's employment was by the hour. Accepting the applicant was stood down with conditions, I find he was not unfairly dismissed. I so find.

[22] The respondent, in his communication, asserted he was paying the respondent over award wages according to the Transport Workers (Passenger Vehicle) Award 2002, which is a Federal Award. From the Commission's search, Captain Fell's Historic Ferries does not appear to be a respondent to that award. The Public Vehicles Award, a State award, therefore governs the applicant's conditions of employment.

[23] According to that award, the base rate the applicant should have been receiving $14.26 per hour, plus 20% casual loading of $2.85 per hour, which equates to $17.11 per hour for ordinary time. The applicant should also have received time and one half for Saturday work and double time for Sunday and Public Holiday work. The applicant was paid $17.00 per hour, flat rate at the respondent's admission.

[24] The respondent breached the Public Vehicles Award by paying under the award rates for straight time and, failing to pay penalty rates as appropriate, and I so find.

[25] Because of the paucity of timekeeping and wages data it is not possible to ascertain the quantum of outstanding wages.

[26] Should the applicant obtain, via Workplace Standards Tasmania, verification of his employment status, accurate wage slips and time records for the duration of his employment he is at liberty to continue with this application to seek reparation for outstanding wages.

James P McAlpine
COMMISSIONER

Appearances:
Mr BG Robinson for himself

Date and place of hearing:
2006
March 7
April 19
Hobart