T12816
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Rachelle Jane Hornsby and PWB - LET Services Partnership No 2
Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - entitlement to redundancy payment - order issued REASONS FOR DECISION [1] On 13 October 2006, Rachelle Jane Hornsby (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 PWB - LET Services Partnership No 2 in respect to severance pay in respect of termination of employment as a result of redundancy. [2] This matter was listed for hearing (conciliation conference) on 9 November 2006, for a teleconference on 15 November 2006 and 30 November 2006, and for hearing on 11 December 2006. Mr J Zeeman, solicitor, Hunt & Hunt, represented the applicant. Mr P Barker, solicitor, PWB Lawyers, represented the respondent. [3] In August 2006 the partners in PWB, Ms Ros Courtney and Mr David Smith, took the decision to restructure the business. The nature of this restructure was to focus on family law with a significant reduction in the litigation and commercial departments. This involved a reduction in total staff, professional and support from approximately 35 to between 15 and 17. [4] Prior to advising staff of the restructure the partners entered into negotiations with a number of other law firms, with the objective of transferring files and staff with a minimum of dislocation. Inherent in these negotiations there was the possibility at least that some secretarial support staff would "follow" the solicitors to the new practice. Mr Smith described the partners' objectives as follows:1
[5] This approach met with some degree of success, and in some cases staff made their own arrangements in seeking alternative employment. [6] The above is provided by way of background and context only. The facts of this case relate solely to the circumstances of the applicant, Ms Hornsby, who had been employed as a legal secretary since April 2002. Ms Hornsby claims that she has an entitlement to a redundancy payment pursuant to s.47AH(2) of the Act, which reads:
[7] The respondent submits that no entitlement to a redundancy payment arises in that Ms Hornsby declined a reasonable offer of continuing employment. [8] Sworn evidence was taken from the following witnesses: · Rachelle Jane Hornsby, Legal Secretary since April 2002. · Samuel John Colin Peart, Solicitor, employed by PWB until the restructure. · David Maurice Smith, partner with PWB. · Timothy James Levis, Solicitor with PWB for past four years. [9] There was a degree of inconsistency and confusion in the evidence of various witnesses, particularly as to dates and actual words used. I have however formed the view that these relatively minor inconsistencies, which were the result of no more than imperfect recollection, do not alter the essential facts on which this case turns. Summary of the Evidence [10] On Tuesday 12 September 2006 Ms Hornsby attended a meeting with the partners. She said:2
[11] The evidence of Mr Smith was as follows:3
[12] Ms Hornsby denied that points (a) to (c) above had been told to her, although there was no actual deadline to find alternative employment. She agreed that the firm had offered to assist in finding alternative employment. [13] Mr Smith described the above statement as a "general message" made to all support staff interviewed, but he could not recall the specific conversation with Ms Hornsby. He said:4
[14] Ms Hornsby immediately telephoned two employment agencies and arranged interviews with them. [15] In the meantime Mr Peart, who had been told that there was not an ongoing role with PWB, had been having discussions with another legal firm, Dobson Mitchell and Allport (DMA). He attended an interview with DMA on Thursday 14 September. Mr Peart had previously told Ms Hornsby that if at all possible, he would try to arrange employment for her at whichever firm he ultimately joined. [16] That same day Mr Peart told Ms Hornsby that he was looking favourably on joining DMA, and that there was a possibility that she could go with him. Mr Peart made the decision to join DMA on either 14 or 15 September. Arrangements were made for Ms Hornsby to be interviewed by DMA on Monday 18 September. Following the interview she was offered and accepted employment with DMA. [17] The partners had determined that there would be a requirement for one ongoing secretarial support position relevant to Ms Hornsby's role to date. Initially a Ms V was approached. She declined as she followed another solicitor to an alternative firm. The position was then offered to a Ms T who Mr Smith described as ambivalent. He said:5
[18] Ms Hornsby was aware of both these offers of ongoing employment. She was under the impression that Ms T had until Monday 18 September to decide. [19] The e-mail from Mr Smith to Mr Levis could not be produced. According to Mr Levis, it was expressed along the following lines:6
[20] Mr Levis went to Mr Peart's office where both Ms Hornsby and Mr Peart were present. It is not clear whether this occurred on Thursday 14 September or Friday 15 September although on balance I suspect Thursday 14 September was more likely. Mr Levis described the meeting in the following terms:7
[21] Both Ms Hornsby and Mr Peart said that Mr Levis did not produce the e-mail but conveyed the message verbally. Ms Hornsby described the meeting as follows:8
[22] Mr Peart's recollection of the meeting was:9
[23] Ms Hornsby said Mr Levis again approached her on Friday 15 September indicating that Mr Smith required an answer straight away. She said she "wasn't able to make a decision that fast". Mr Levis did not recall this meeting. [24] Under cross-examination Ms Hornsby's evidence was:10
[25] Mr Smith gave evidence as to the various deadlines relating to the offer to Ms T:11
[26] And later:12
[27] As to the genuineness of the offer to Ms Hornsby, Mr Smith said:13
[28] According to the evidence Ms T did continue to work for PWB after Ms Hornsby had left, but has subsequently resigned. [29] Ms Hornsby's "Employee History Card" contains a hand written entry of "Redundancy" in the section titled "Reason for Termination". Mr Smith said a member of the administrative staff had made this in error. Findings [30] The entitlement arising out s.47AH(2) is a statutory entitlement to a redundancy payment in the event of a redundancy arising, unless otherwise determined by the Commission. This amendment, which came into effect on 15 February 2006, in some respects amounts to a significant departure from the past in that an order from the Commission is no longer a prerequisite to an entitlement arising. [31] In the instant matter there is no application to set aside or vary the statutory entitlement. It follows that the only question to be determined is whether or not Ms Hornsby was made redundant. [32] In the overall context, I am satisfied that the partners, having made the decision to restructure, set about to manage the staff implications with a high degree of sensitivity and provided positive assistance in minimising dislocation and possible economic hardship. The partners are to be commended for this overall approach. [33] Having said that, the facts as they applied to Ms Hornsby, are the only consideration. [34] I am satisfied that following the meeting with the partners on 12 September, Ms Hornsby had every reason to believe she had been made redundant. Absent any counter evidence, I have no reason not to accept the evidence of Ms Hornsby in relation to the nature and outcome of this meeting. [35] Ms Hornsby immediately set out of her own volition to find alternative employment. She immediately contacted two employment agencies and arranged interviews. She also discussed the matter with Mr Peart, who offered to take Ms Hornsby with him if that was at all possible. [36] However, an individual having been told they are redundant does not mean that the employer is unable to withdraw a notice of redundancy and reinstate an ongoing employment relationship. This is in fact what the respondent contends in this case, although the respondent further contended that the ongoing position was always equivocal, depending on "how the cards fell with the other secretaries".14 I do not accept that this latter point was conveyed to Ms Hornsby. [37] I accept that at the time Mr Levis conveyed Mr Smith's "offer" there was a strong possibility that Ms Hornsby would be offered a position with DMA. However that possibility did not become a reality until after her interview with DMA on 18 September. It was only at that point that Ms Hornsby was in a position to accept or reject an offer from DMA, a position she ultimately accepted. [38] Despite the uncertainty about some of the evidence, one thing was abundantly clear to all concerned. There was only going to be one ongoing secretarial support position, which could be filled, by either Ms T or Ms Hornsby. [39] Mr Smith's evidence about a first deadline (PWB's), and a second deadline, being Ms T's, is confusing. There is no doubt that Mr Smith was becoming increasingly anxious that the firm might be left in the position of having no secretarial support, and he was understandably keen to bring matters to a head. [40] I am not however convinced that the offer of employment to Ms T was unequivocally withdrawn at the time of the first deadline. Mr Smith did not say as much. He did say he conveyed his unhappiness with Ms T's prevarication, but that is something short of taking the offer off the table. [41] To say that Mr Levis was a reluctant emissary for Mr Smith is an understatement. Mr Levis, for his own good reasons, simply did not want to get involved. In essence Mr Levis was asked to ascertain Ms Hornsby's attitude in relation to ongoing employment in circumstances whereby Ms Hornsby was aware the same position had been offered to Ms T, and as far as Ms Hornsby was aware, was still open to Ms T to accept (as she subsequently did). It is not surprising in the circumstances that Ms Hornsby reacted with a degree of incredulity. I also accept that Ms Hornsby did not reject the offer (such as it was) out of hand, but it would seem, stated that she was not in a position to respond immediately. [42] I have no doubt that Mr Smith was motivated only by a desire not to be left without secretarial support and did not wish to cut off his options. Mr Zeeman drew an analogy that this was akin to making multiple simultaneous offers for the one position, with the first one to say yes gaining the position and the remainder being denied a redundancy payment on the basis that they did not accept a reasonable offer of employment. I accept firstly, that this analogy has some relevance to the instant case, and secondly, such an outcome would be unfair. [43] This application presented with an unusual set of circumstances and the outcome was always far from clear-cut. Redundancy payments should not be viewed in the same light as accrued entitlements such as long service leave, and should be limited to genuine cases of employment loss through no fault of the individual. [44] I am however satisfied on balance that the nature of the offer and the manner in which it was made against the background of the particular circumstances, lacked the quality reasonably expected of an offer which, should it be rejected, would disbar an entitlement to a redundancy payment. [45] I find that the applicant has an entitlement to a redundancy payment pursuant to s.47AH(2) of the Act. ORDER Pursuant to s 31 of the Industrial Relations Act 1984, I hereby order that PWB - LET Services Partnership No 2 pay to Rachelle Jane Hornsby an amount equivalent to eight weeks' salary by way of a redundancy payment. Such payment to be made not later than 5.00pm on Tuesday 30 January 2007. Tim Abey Appearances: Date and place of hearing: 1 Transcript PN 328
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