T12722
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Erica Evelyn Short-Maynard and Tasmanian Aboriginal Land and Sea Council
Industrial dispute - termination of employment - alleged breach of an award - contract of employment - application found not to be `out of time' - constructive dismissal - unfair termination - order issued REASONS FOR DECISION [1] On 10 July 2006, Erica Evelyn Short-Maynard (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 Tasmanian Aboriginal Land and Sea Council arising out of the termination of employment and the alleged breach of an award or a registered agreement. [2] This application was listed for a conciliation conference on 6 September 2006, listed for a teleconference (Directions) on 29 September 2006 and listed for hearing on 18 December 2006. The applicant was represented by Mr Stephen Wright, solicitor, Crisp Hudson and Mann and Mr Craig Green, solicitor, Page Seager appeared for the Tasmanian Aboriginal Land and Sea Council (TALSC). [3] On 20 September 2005 the applicant entered into a contract of employment [the first contract] with TALSC.1 In the preamble the contract is described as a "contract of temporary employment as Preminghana Project Manager..." the rate of remuneration was $36000 pa and clause 11 Duration stated:
[4] The contract provided that the employee was bound by the "employer's policies and procedures" [clause 12]. Clause 16 Termination provided that the employer may terminate the agreement at any time without notice in the event that the employee;
[5] TALSC was established in its then manifestation in 1989. Section 1.2 of the Policies and Procedures Manual reads:2
[6] The Council is reliant to a large extent upon funding from various government sources. Preminghana is 540 hectares of aboriginal land near Marrawah on the west coast. [7] Ms Short-Maynard asserts that she was unfairly terminated and seeks reinstatement in her former position. [8] The respondent contends that the applicant ended her employment through her own actions, specifically that she failed to sign and return a contract to TALSC. [9] There is a further issue in that the respondent contends that the application was lodged `out of time' and there are no exceptional circumstances which would justify an extension of time. As this preliminary issue was inextricably bound up in the totality of the circumstances surrounding this case, the parties agreed that the matter should be run in its entirety rather than dealing with the out of time question in isolation. [10] There have been a number of delays in bringing this matter to finality. These delays were largely at the request of the respondent, and whilst apparently unavoidable, is nonetheless a matter for regret. Evidence [11] Sworn evidence was taken from the following witnesses: Erica Evelyn Short-Maynard, the applicant. Lois Jane Reid, Administrator of TALSC since June 2004. Colin John Hughes, employed by TALSC since 1991, currently and at all material times, Manager of the Council. Chronolgy of Events [12] From the evidence the following chronology of events emerges. [13] Upon accepting the position, Ms Short-Maynard was required to relocate from Wynyard to Preminghana. Accommodation was in a caravan, with limited facilities. There is a fully furnished two-bedroom cabin on site, for the use of the caretakers. [14] Ms Short-Maynard stated that until the appointment of caretakers, she worked "24/7." The contract provided that the hours of work were 9am to 5pm, Monday to Friday, with one hour for lunch. Ms Short-Maynard said she was not paid overtime. [15] The caretakers at Preminghana during the relevant period were Ms Fiona Hughes [sister of Colin Hughes], and her partner, Mr Dean Lesley. According to Ms Short-Maynard, the caretakers were appointed on 4 March 2006. Prior to that they were living on site as guests, but were not performing the caretaker role. According to Ms Reid, Ms Hughes and Mr Lesley had been performing the role of caretaker since 31 January 2006 and were paid as such. However the contract of employment was not signed until 8 March 2006.3 [16] Ms Short-Maynard said she had previously raised concerns with the Manager concerning alleged breaches of the Policies and Procedures Manual [the manual] by Ms Hughes and Mr Lesley. [17] Between 27 February and 3 March 2006, Ms Short-Maynard attended an aboriginal tourism symposium in Cairns, funded by TALSC. She returned to Preminghana on Monday 6 March. Ms Short-Maynard's uncontested evidence of what followed was:4
[18] Ms Short-Maynard more or less immediately travelled to Hobart, via Launceston, arriving at the TALSC office on 8 March. Mr Hughes was not in the office, and hence Ms Short-Maynard met with Ms Reid. Ms Short-Maynard described this meeting as follows:5
[19] Ms Short-Maynard remained in Hobart for the balance of that week. She then returned to Wynyard, and subsequently had meetings with various real estate agents concerning alternative office accommodation. [20] Ms Reid said she was aware that Ms Short-Maynard was coming to Hobart and was upset. Ms Reid agreed that the caretakers had no authority to fire Ms Short-Maynard. She also said that he first contract was misleading, in that it referred to supervision of the caretaker. This she said was inappropriate. [21] Ms Reid drafted and presented Ms Short-Maynard with an alternative contract. [The second contract].6 The position was described as "Project Manager for `Sharing Preminghana's Indigenous Heritage'". The remuneration remained at $36,000 pa. The Duties clause was modified to include a greater emphasis on a tourism plan. Reference to supervision of the caretaker was deleted. Significantly, the agreement was operative from 20 September 2005, the same operative date as the first contract. [22] Ms Short-Maynard said that it was agreed that Mr Hughes would meet with Ms Short-Maynard on 15 March, to view the real estate options. Ms Reid was to inform Mr Hughes of the proposed meeting. The meeting did not take place. [23] Ms Reid agreed that she asked Ms Short-Maynard to look for alternative office accommodation. However she did not have any recollection of arranging a meeting with Mr Hughes for 15 March. [24] Ms Reid said the only occasion she had difficulty contacting Ms Short-Maynard was on or about 14 March when she did not respond to mobile phone contact. [25] In early April Ms Reid contacted Ms Short-Maynard to arrange a meeting with Mr Hughes in Launceston on 6 April. At that meeting there was a discussion concerning the second contract. Ms Short-Maynard's evidence was:7
[26] Mr Hughes' recollection of the meeting was:8
[27] Mr Hughes agreed that Ms Short-Maynard was to commence on 11 April. He was aware that office equipment remained at Preminghana but denied that he had agreed to take Ms Short-Maynard to Preminghana to collect it. [28] On 17 April Ms Short-Maynard rang Mr Hughes inquiring about her pay and whether a time sheet was required. A time sheet was duly submitted but she was still not paid. Ms Short-Maynard's evidence was:9
[29] And later:10
[30] Ms Reid agreed that she had told Ms Short-Maynard that she was not entitled to annual and sick leave, as she was a contractor.11 Mr Hughes said he was aware of the conversation between Ms Reid and Ms Short-Maynard. Mr Hughes also maintained that Ms Short-Maynard was a contractor.12 [31] In late April Ms Short-Maynard spoke to Mr Ricky Maynard of the Tasmanian Aboriginal Centre [TAC] in relation to the ongoing issue. She said:13
[32] Mr Hughes agreed that Mr Maynard had spoken to him. He said:14
[33] Ms Short-Maynard denied that she was to post the amended contract back to TALSC. She said:15
[34] And later:16
[35] The following is an extract from a Manager's Report prepared by Mr Hughes and dated 9 May 2006.17
[36] Ms Short-Maynard sought legal aid through the TAC and subsequently consulted Mr Wright. On 9 May 2006 Mr Wright wrote to TALSC in the following terms:18
[37] Questioned in relation to this correspondence, Mr Hughes said:19
[38] Mr Hughes did not respond to this correspondence until 28 June 2006. On 1 June he wrote to Ms Short-Maynard in the following terms:20
[39] Ms Short-Maynard said in relation to this correspondence:21
[40] Later under cross-examination, Ms Short-Maynard said:22
[41] It is unclear whether Ms Short-Maynard sought advice as to the impact of this correspondence. At one point she agreed that she had discussed the matter with Mr Wright a few days after receiving it.23 However later she said:24
[42] Ms Short-Maynard arranged to return the equipment through a member of the community. [43] On 28 June 2006 Mr Hughes responded in the following terms:25
[44] Under cross-examination Mr Hughes agreed that the manual made no reference to the completion of timesheets.26 [45] The application to the Commission was dated 6 July and received in the Commission on 10 July 2006. Other Considerations [46] The following factors, which do not fit conveniently into the above chronology, have some relevance in the overall context. [47] According to Ms Short-Maynard, she had never received any warnings or complaints concerning the performance of her duties.27 [48] Ms Short-Maynard was paid up until 10 March. There is a complete gap in the evidence as to what occurred between 11 March until 11 April 2006. [49] It was not unusual for a delay between the actual commencement of work and the signing of a contract.28 The contract for the caretaker was a case in point.29 [50] There was no evidence of any disciplinary action against the caretakers for their unauthorised dismissal of Ms Short-Maynard, nor any action taken to resolve the differences between the caretakers and Ms Short-Maynard.30 [51] At no stage did the Committee direct the manager to terminate the services of Ms Short-Maynard.31 Findings [52] The circumstances of this case are quite extraordinary and are characterised by a significant breakdown in communications. I turn firstly to the standing of the two contracts. [53] The first contract was legitimately made and came into effect on 20 September 2005. [54] The termination of Ms Short-Maynard by the caretakers was done without authority and was strongly contested by Ms Short-Maynard. It was not a legitimate termination of employment. [55] There is no evidence that Ms Short-Maynard ever agreed to formally terminate the first contract. Certainly she agreed in principle to accept the revised role, but this was subject to certain terms relating to annual and sick leave being included in the contract. Until the first contract is cancelled or replaced with the consent of both parties, or the employment of Ms Short-Maynard is terminated in accordance with its terms, it continues to run. I find accordingly. [56] Certainly there was an expectation that the second contract would ultimately be signed by both parties, but there was no evidence that this was a precondition for payment of wages. The evidence was that it was not unusual for delays to occur between the commencement of work and the signing of a contract. It is beyond argument that Ms Short-Maynard commenced work in her new role on 11 April and submitted time sheets. She was not paid, and was told, some time after 11 April, firstly that she would not be paid until the contract was signed, and secondly, TALSC would not agree to include annual and sick leave because she was a contractor. [57] The assertion by Mr Hughes and Ms Reid that Ms Short-Maynard was a contractor, as distinct from an employee, is frankly nonsense. Both contracts refer to "employee, employer and employment" throughout. The contracts provide for the payment of an annual salary. Frankly there is not one aspect of the arrangement between Ms Short-Maynard and TALSC that remotely resembles a genuine contractor/principal relationship. [58] Ms Short-Maynard sought the inclusion of annual and sick leave provision in the contract. This was a perfectly reasonable request. Both contracts make reference to the employee being bound by the employer's policies and procedures. The policy manual at clause 3 provides detailed annual and sick leave provisions applicable to staff. Ms Short-Maynard was a full-time salaried employee. There was in my view a clear entitlement to leave by reference to the policy manual. Even more compelling are the provisions of s.47AE and 47AH of the Industrial Relations Act 1984, which provide minimum standards for annual and sick leave, applicable to all employees other than casuals. [59] Ms Short-Maynard had a statutory entitlement to annual and sick leave. It is not legally possible to contract out of this obligation on less favourable terms. [60] The confusion as to whether Ms Short-Maynard was to post the contract to TALSC or whether Mr Hughes was to collect it is a matter of regret which in normal circumstances should have been quickly resolved by a simple phone call. Both parties must accept some blame for this. Notwithstanding, there was always going to be a disagreement about the annual and sick leave issue and hence there was no likelihood of the contract being executed without one party giving ground. In the circumstances Ms Short-Maynard had every reason to seek legal advice. [61] The correspondence from Mr Wright dated 9 May does not concede that Ms Short-Maynard's employment had come to an end. On the contrary, the correspondence sought payment of salary and confirmation of her employment status. [62] It is clear from the evidence that Mr Hughes was in no hurry to resolve the issues. He did not respond to the letter until seven weeks later and appeared untroubled by the prospect of litigation. Again it is a matter of regret that Mr Wright did not bring matters to a head by lodging a s. 29 application as foreshadowed in his correspondence. [63] As the representative of the employer Mr Hughes had a responsibility to respond in a timely manner to the legitimate concerns raised by her legal representative. Instead he chose to write to Ms Short-Maynard some three weeks later in a manner which implied that Ms Short-Maynard had ended her own employment at some earlier but indefinite point. There is no doubt that on receipt of that letter; Ms Short-Maynard felt that her employment had come to an end. Whilst this is an understandable reaction for someone not legally trained, it does not necessarily amount to a termination at the initiative of the employer. [64] There is nothing in the correspondence of 1 June 2006 that can be construed as a termination of employment by the employer. Apart from suggesting the implication above, it does no more than seek the return of equipment. I find accordingly. [65] Mr Hughes finally responded by letter dated 28 June 2006. This is an unusual letter. The reason given for the delay is that Ms Short-Maynard has not replied. The unanswered question is, replied to what? The letter refers to timesheet requirements in the policy manual, of which there are none, and by the construction of the correspondence, suggests these alleged breaches occurred prior to the termination by the caretakers, of which there is no evidence. Notwithstanding these aspects, it would be a reasonable conclusion that Ms Short-Maynard's contract of employment ended at that point. I find accordingly. It follows that the out of time issue does not arise and it is unnecessary to address the submissions on this preliminary point. [66] I find that Ms Short-Maynard's contract of employment came to an end a consequence of a constructive dismissal. The nature of this constructive dismissal was that the employer attempted to impose, after employment had commenced, as a precondition for payment of salary, a contract that was arguably illegal and certainly unenforceable. Further, the employer refused to address the legitimate concerns raised by the employee as to the terms of the contract. The constructive dismissal was formalised by the correspondence dated 28 June 2006. [67] I further find that the termination of Ms Short-Maynard's contract of employment was unfair. Remedy [68] The applicant seeks reinstatement to her formal position. On the evidence of Mr Hughes the position has not been filled and remains open. However it is to be relocated to Hobart. Ms Short-Maynard has shown no inclination to relocate to Hobart and in the circumstances, reinstatement would seem impracticable. [69] In assessing compensation I have taken into account the relatively short service of Ms Short-Maynard, and the "temporary'' nature of the employment contract. Nonetheless, Ms Short-Maynard had a reasonable expectation that she would be employed at least for the duration of the projects, however long that might have been. [70] On the evidence Ms Short-Maynard did nothing wrong although she should have been more diligent in seeking to bring matters to a head. I have already found that the first contract was never terminated and remained on foot until 28 June 2006. Hence salary is payable up to that point in time. From this I have discounted the unexplained period from 11 March to 11 April. I have included an additional four weeks salary, representing reasonable notice. This makes a total of 15 weeks salary. This equates to $10,385. ORDER Pursuant to section 31 of the Industrial Relations Act 1984 I hereby order that Tasmanian Aboriginal Land and Sea Council pay to Erica Evelyn Short-Maynard an amount of ten thousand, three hundred and eighty five dollars ($10,385), such payment to be made not later than 5.00 pm on Friday, 9 February 2007.
Tim Abey Appearances: Date and place of hearing: 1 Exhibit A2
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