T12575
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Bradley Leonard Duffy and High Professional Productions Pty Ltd, ACN 88879369
Industrial dispute - application amended - termination of employment - application dismissed REASONS FOR DECISION [1] On 24 February 2006, Bradley Leonard Duffy (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 Howarth Payne Constructions Pty Ltd and/or Hi Vis Labour Hire (the respondent) arising out of his alleged unfair termination of employment. [2] The matter was listed for hearing on 14 March 2006 (Conciliation Conference) and 6 April 2006 at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania. [3] The applicant commenced employment with the Howarth Payne Constructions Pty Ltd on 21 March 2005. He was employed as a labourer and, it appears, also under a training contract. On 12 January 2006, for business reasons, the applicant's employment was transferred to High Professional Productions Pty Ltd, ACN 88879369 trading as Hi Vis Labour Hire, a related business, along with everyone else on site. [4] On 30 January 2006, the applicant was observed "surfing" on the towbar of a moving vehicle on site. The applicant was removed from the site for dangerous conduct, on instructions from the site manager for Howarth Payne Constructions Pty Ltd. The site manager was also contracted to Howarth Payne Constructions Pty Ltd from the respondent. The applicant had received one and a half day's work from the respondent since the end of January to the date of hearing. The applicant claimed unfair dismissal and that he has been denied further work as a result of the incident. [5] The respondent asserted the applicant had only been removed from that particular site and when appropriate work came in he would be approached. BACKGROUND [6] Mr Waller, for the respondent, asserted both the respondent and Howarth Payne Constructions Pty Ltd were part of a group of companies operating at the Willow Court Redevelopment Project, controlled by a Mr Harold Adams. The respondent is a labour hire company. It maintains a pool of people with various skills and matches them up to specific jobs as they occur. Each worker is employed for the duration of a "contract" through the labour hire company to the host employer. It is the practice of the respondent to give each worker a Separation Certificate at the end of each "contract" of work. [7] The applicant admitted he had acted in a dangerous manner on the 30 January 2006 at the Willow Court Redevelopment Project site in New Norfolk. He also acknowledged he had had received a safety induction, which illustrated horseplay as being unacceptable on site. The site manager asserted he had little option but to have the applicant immediately removed from site. His role as site manager holds him accountable for the safety of the site. [8] Mr Waller asserted on several occasions the applicant was still on the "company books" and as such would be called upon as and when work became available. [9] The applicant asserted he had been given work at the Maypole Bakery site, but after a day and a half was removed at the behest of Mr Harold Adams. There was no evidence to support this. [10] Mr Waller asserted all employees of Howarth Payne Constructions Pty Ltd transferred to the respondent on 12 January 2006. Mr O'Malley, the site manager corroborated Mr Waller's assertion. [11] The applicant, however, was less sure of the position. There was no evidence presented which allowed this Commission to ascertain if the status of the employees changed when they changed companies, for example from full time to casual workers or the like. [12] Mr Waller also asserted the training agreement between Howarth Payne Constructions Pty Ltd, the applicant and the training organization had been cancelled.
[13] The applicant was unable to throw any light on the training situation at all. FINDINGS [14] The feature of the applicant's employment status is a concern. I am not convinced the applicant understands his training agreement was site dependent as asserted by Mr Waller. Nor am I convinced he understands his training agreement has been terminated as asserted by Mr Waller. However, there was no concrete evidence presented by either party for this Commission to take any action other than noting the anomaly. [15] Mr O'Malley, the site manager, had personal responsibility for the occupational health and safety of the workforce as well as anyone else who may venture onto the Willow Court Redevelopment Project, New Norfolk site. His immediate removal from site of an employee who was wilfully acting in an unsafe manner, in my view, was an appropriate action. [16] The evidence by Mr Waller, and the fact that the applicant did continue working, albeit for a short time, suggests he is still employed, in some capacity. [17] The applicant's removal from the site does not constitute unfair dismissal, I so find. [18] The application is dismissed.
James P McAlpine Appearances: Date and place of hearing: 1 Transcript, paras 218, 219, 221, 225 and 227
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