T12582
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Patricia Kathleen Tilyard and Sandy Bay Hi-Fi Retail Pty Ltd
Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - alleged breach of an award or a registered agreement - entitlement to long service leave - Order issued REASONS FOR DECISION [1] On 27 February 2006, Patricia Kathleen Tilyard (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 Sandy Bay Hi-Fi Retail Pty Ltd (the respondent) re: severance pay in respect of termination of employment as a result of redundancy; alleged breach of award or registered agreement; and, a dispute over the entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid. [2] On 1 March 2006, a notification was sent to the applicant and the respondent notifying of the Commission's intent to conduct a hearing (conciliation conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 21 March 2006 at 9.30 am. [3] On 9 March 2006 the Commission received correspondence from Mr Nigel Dreaver (the Director and Secretary of Sandy Bay Hi-Fi Retail Pty Ltd), for the respondent, outlining his views of the application. [4] On 20 March 2006 a medical certificate was delivered by hand, by Mr Dreaver to the Commission, expressing that he would be unfit to attend the conference. [5] The Commission chose to hear submissions from the applicant. [6] On 27 March 2006, a copy of all exhibits and a verbatim transcript was forwarded to the respondent requesting a response within a period of time. No response was forthcoming. A further hearing was set down for Tuesday, 9 May 2006 at 9.30 am. [7] At the commencement of the hearing it was agreed by Ms Tyson that this matter be heard in parallel with T12589 of 2006 (Mr SC Trotter), T12592 of 2006 (Mr JP Cooper) and T12599 of 2006 (Mr S Reidy). The evidence educed with respect to the events leading up to the closure of business is common to the four matters. [8] At the hearing the applicant was represented by Ms K Tyson, Working Women's Centre Tasmania. Mr Benson, Ogilvie Jennings, Barristers & Solicitors, sought and was granted leave to appear for the respondent. [9] At the commencement of the hearing Mr Dreaver, for the respondent, had not appeared. The Commission was informed by Mr Benson that:
[10] Mr Benson presented a threshold matter with respect to the applications of Mr Trotter, Mr Reidy and Mr Cooper being out of time. [11] Mr Benson then sought and was granted a short adjournment to attempt to locate Mr Dreaver. After approximately forty-five minutes the hearing was reconvened. Mr Benson informed the Commission that he had located Mr Dreaver and, although "only twenty minutes away", at the commencement of the adjournment had still not arrived. The Commission elected to continue with the hearing. Mr Benson sought and was granted leave to withdraw. [12] Approximately one and a half hours after the original commencement of the hearing Mr Dreaver arrived. He offered no apology or explanation for his tardiness. Mr Dreaver continued the representation of the respondent. [13] The applicant was employed as an Administrator by the respondent on a permanent basis from 3 August 1995, until her alleged retrenchment 6 February 2006. The applicant cited the closure of the business as the reason for her termination. [14] Mr Dreaver said the applicant left her employment of her own volition when two key employees left. He stated that as a result of these two employees leaving the business could not function and had to close down [15] The applicant sought pro-rata long service leave, payment of outstanding annual leave, payment in lieu of notice and redundancy commensurate with her 10.5 years of service. [16] Mr Dreaver sought forfeiture of one weeks wages in lieu of notice. BACKGROUND [17] In evidence it was stated by both Mr Reidy and Mr Cooper that they were made aware, some time prior to Christmas 2005, that there was a probability that the respondent would cease operation in the foreseeable future. It was alleged by Mr Cooper that Mr Dreaver had confided in him at that time, that due to poor health he would be forced to close the business. This was not challenged. [18] It was further alleged by Mr Reidy that the respondent had been given notice to quit the premises by the property's landlord. [19] Mr Dreaver initially denied there was an issue with the lease. Subsequently however, in his further evidence, he alluded to "ongoing negotiations" with the landlord, which facilitated him still occupying the premises. He further denied the business was in danger of closing at that time. He cited another local business, Danny Burkes, which ran a closing down sale "for a very extended time". [20] Mr Dreaver broached the subject of starting a sale on Boxing Day with some of the employees. Mr Cooper, Mr Reidy and Mr Trotter all said Mr Dreaver wanted to conduct a sale during that time, but would not pay penalty rates. Although some agreed to work for ordinary time payment, the sale did not eventuate. [21] There were general discussions with the employees and the respondent, and between the employees themselves, regarding setting up a `closing down' sale for January. [22] Mr Reidy said that he approached Mr Dreaver asking for all the staff to be given time off around the post Christmas - New Year period. He said he reminded Mr Dreaver that the staff had worked for an extended period without time off and that he, Mr Dreaver, would require that time to organize the sale. He also said he discussed with Mr Dreaver that the break would help the employees get motivated to maximize the sales effort in the proposed closing-down sale. [23] Although challenging Mr Reidy's evidence as to why time off was given to the employees, Mr Dreaver conceded he had charged Mr Reidy with boosting morale. [24] The applicant, and the other three employees, claimed Mr Dreaver was evasive when challenged on issues of the business closure and of payment of entitlements. Mr Reidy, Mr Cooper and Mr Trotter all said that at various times they spoke to Mr Dreaver, either personally or by telephone, regarding closure of the business and payment of entitlements. This was not challenged. [25] Indeed, evidence was presented that Mr Dreaver had been in negotiations with a representative of Bartertrade to have entitlements paid out in vouchers redeemable for goods and service.2 The employees rejected this notion. [26] It was alleged the situation became so frustrating the employees, including the applicant, en masse penned a letter on 16 January 2006 demanding answers to their concerns3. [27] The main points of the letter were as follows:
[28] The gist of Mr Dreaver's curt scribbled reply4, was as follows:
[29] As a result of alleged evasiveness by Mr Dreaver, after he had replied to their letter of 16 January, it was stated by the applicant, Mr Reidy, Mr Trotter and Mr Cooper that another letter was sent requesting further clarification. This letter, composed by Mr Cooper, was dated 31 January 20065. Again, in that letter the applicants sought some commitment from the respondent:
[30] The respondent did not reply to this letter. [31] Mr Reidy gave evidence that he took a telephone call from Mr Dreaver on the afternoon of the 2 February 2006. The gist of which was that he was told that his last day of work would be Friday, 3 February 6006. He was also asked to notify the applicant that her last day of work would also be Friday, 3 February 2006; and to inform Mr Trotter his last day of work was to be Saturday, 4 February 2006. The applicant and Mr Trotter confirmed that Mr Reidy did, indeed, inform them of the date of their last workday. [32] At paragraph 732 of transcript, Mr Dreaver said:
[33] Mr Dreaver did not deny a conversation took place, but denied the content. [34] It followed that: Mr Reidy finished on 3 February 2006; Mr Trotter finished on 4 February 2006; but the applicant did not finish as expected on the 3 February 2006. [35] The applicant stated she spoke to Mr Dreaver on the afternoon of 3 February 2006. She said she had expressed her grievance at hearing of the demise of her employment from a third party. [36] Mr Dreaver acknowledged a conversation took place between himself and the applicant. However, he evaded committing to the applicant's account of that aspect of the conversation. [37] The applicant further stated that during this conversation she, with Mr Dreaver's permission, arranged to work on Monday, 6 February 2006 to complete important bookwork. On 4 February 2006, the applicant said she cancelled a cheque to herself for wages and re-issued another to include pay for 6 February 2006. She left a note for Mr Dreaver explaining what she had done. [38] The hand-written note dated 4/2/06 (referred to, together with a copy attached, in the correspondence to the Commission by Mr Dreaver dated 9 March 2006) reads:
[39] Mr Dreaver stated that this note was evidence the applicant had resigned her position. He said he did not terminate her employment. It was stated by Mr Benson, during the course of submissions on behalf of the respondent:
[40] When challenged as to why a 63-year old employee would just walk out of a job leaving a note, Mr Dreaver replied:
[41] The applicant continued to work for some days for no remuneration. [42] Mr Dreaver stated8 that no one was given notice to quit:
[43] Mr Dreaver cited his response #3 to the letter of the 16 January as evidence of his intention to maintain the employment of his staff. FINDINGS [44] There was a strong and consistent case put by the applicant and the three other employees, that it was common knowledge the respondent was in the final stage of closing the business down in January and February of this year. Mr Dreaver's assertion that the business only closed because two key employees left is outweighed heavily by evidence from the applicant and the other employees and his own evidence contradicting his stated position. The respondent's reply to the letter of 16 January 2006 clearly shows the process of closing the business was well progressed. [45] Mr Dreaver said he was aware of the two employees intent to leave yet made no attempt to mitigate the impact on the business by either recruiting to fill the potential voids or negotiating with either or both employees to stay. [46] In the entire matter of dealing with this application, I found Mr Dreaver to be evasive, deliberately obtuse and much of his assertion to be calumnious. Indeed, his response #3 to the letter of the 16 January 2006, in my view, further confirms his evasiveness and duplicity. [47] Mr Dreaver would not admit he had given instructions to Mr Reidy to inform the applicant of the demise of her employment. He did admit to speaking with the applicant after she had been given the news. [48] I accept the applicant's recollection of her conversation with Mr Dreaver on 3 February 2006, in that she discussed her termination and her desire to complete outstanding work before she finally ceased employment. [49] At no stage did Mr Dreaver withdraw the notice of termination relayed by Mr Reidy to the applicant. [50] Mr Dreaver's assertion that the note (as previously mentioned, a copy of which formed part of his reply to the Commission, on behalf of the respondent of 9 March 2006) left by the applicant explaining her actions in changing a cheque was a notification of resignation is absurd. His further assertion that an employee of more than ten years would walk out of a job because she realized " she had no choice" is fanciful in the extreme. [51] It was stated by Mr Benson:
[52] I find this assertion to fly in the face of any credibility in Mr Dreaver's version of the events. [53] Mr Dreaver's statement that the business need not have closed down at the time it did, is contradictory to his own evidence in the reply to the letter of the 16 January 2006. In it he mentioned early February as an expected time for closure. He also stated that the payment of employees' entitlements was dependent on the sale of stock. It was common knowledge that Mr Dreaver was in negotiations with Bartertrade to broker a deal with respect to employee entitlements. No other conclusion can be drawn; the respondent had chosen to wind up his business around February of this year. [54] I find the applicant's employment was terminated on or around the 6 February 2006 as a result of redundancy. I further find that the applicant is entitled to payment of outstanding leave, one week's pay in lieu of notice as per the Clerical and Administrative Employees (Private Sector) Award, pro-rata long service leave, redundancy of two weeks wages for each completed year of service. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, that Sandy Bay Hi-Fi Retail Pty Ltd, pay to Patricia Kathleen Tilyard, the sum of twenty eight thousand seven hundred and fifty four dollars and eighty-one cents made up as follows:
The above amount of twenty eight thousand seven hundred and fifty four dollars and eighty-one cents to be paid to Patricia Kathleen Tilyard by no later than 5.00 pm on Friday, 7 July 2006. James P McAlpine Appearances: Date and place of hearing: 1 Transcript, PN225 |