Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T13184

TASMANIAN INDUSTRIAL COMMISSION

 

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

 

Clinton Tony Doddy
(T13184 of 2008)

 

and

 

CK & S Farquhar trading as CK & S Farquhar Carpet and Vinyl

 

Commissioner JP McAlpine

HOBART, 9 December 2008

 

Industrial dispute - termination of employment - alleged breach of award – Order issued

 

REASONS FOR DECISION

[1] On 17 July 2008, Clinton Tony Doddy (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with CK & S Farquhar trading as CK & S Farquhar Carpet and Vinyl (the respondent) arising out of a dispute in relation to termination of employment; and an alleged breach of award or registered agreement.

[2] The matter was listed for hearing at the Supreme Court, Cameron Street, Launceston, Tasmania on 1 August 2008 (Conciliation Conference) and 28 August 2008.

[3] The applicant was employed from on or about 6 January 2008 to 27 June 2008 by the respondent.  There is contention as to the functions the applicant performed.  It was also stated that the applicant did work for the respondent for a week or so before Christmas 2007.  The nature of this employment was not defined.

[4] The applicant asserted he was unfairly dismissed from his employment.  He also alleged that he had been wrongly classified for the duration of his employment and consequently underpaid.

[5] The applicant sought reimbursement of the outstanding underpayment of wages, a week’s pay in lieu of notice, reimbursement for actual overtime worked and any other outstanding entitlements.  He did not seek reinstatement.

 

BACKGROUND  

[6] The applicant claimed he had been dismissed because he had three days off work.  The applicant attended work on Monday 23 June 2008, but failed to turn up for the rest of the week.  He asserted he had a medical Certificate for 24 June 2008.  He asserted he returned to work on Wednesday 25 June 2008.  He alleged he went to the meeting point, Roberts Mobile Carpets (Roberts), at 8.00am, but none of the respondent’s employees were there.  He allegedly waited for some time and when no one appeared he decided to go home.  From leaving home until he returned took between 45 minutes and an hour.

[7] Mr Robert Farquhar, an employee and the owner’s son, asserted that the crew was always at Roberts by 8.20am at the latest.  The respondent also asserted the crew would “… never be late 45 minutes”. (Transcript p.24, L.40)

[8] The respondent asserted the owner of Roberts told him that the applicant had turned up on the Wednesday morning but, he had only waited for about ten minutes and then left.

[9] A witness, Ms Anne Marie Parker, attested that the applicant returned to his home at about 9.00am and appeared to be distressed.  She also asserted that the applicant telephoned “them” but did not get an answer.  One must assume “them” to be the respondent or his son.

[10] The respondent stated that he had called the applicant on the evening of 24th and the morning of 25 June 2008, but did not get a response.  Exhibit R1, a record of telephone accounts shows that calls were made to the applicant’s telephone from the respondent’s telephone at the times and dates stated by the respondent.

[11] The applicant acknowledged that he did not go inside the Roberts facility to inquire as to the whereabouts of the work crew.  He said:

 

“There’s no point. There’s no one there, you don’t have to go inside.” (Transcript p.15, L.43)

 

[12] The respondent rejected the applicant’s position and asserted that his crew picks up materials from Roberts before going on jobs. And further, that the owner of the facility is always there at that time of the morning.

[13] However on later questioning by the Commission the applicant changed his position. At page 8 line 1 of transcript:”

 

“THE COMMISSIONER: … So – but you knew there was a guy inside?

 

MR C. DODDY: Yes, yes.”

 

[14] The applicant asserted that 70% of the time the crew met at the respondent’s home at Bridgenorth, not at Roberts.

[15] The respondent rejected this proposition asserting that the crew only left from his home if they had a job in Georgetown.  In his evidence, Mr Rodney Farquhar confirmed that Roberts was the normal starting point for the crew.

[16] The applicant alleged he tried to telephone the respondent but did not get an answer.  He contacted the respondent’s son, Mr Rodney Farquhar, on Friday 27 June 2008 inquiring about his pay by text message.  Mr Rodney Farquhar stated that he had called the respondent to inquire where he had been for the last three days.  He claimed the applicant responded; “Oh nowhere”. (Transcript p.31, L.28)

[17] This was not refuted by the applicant.

[18] The applicant contacted Mr Rodney Farquhar again on Sunday, 29 June 2008 to inquire where to meet the following morning.  He was told by Mr Rodney Farquhar that he had been fired.

[19] The respondent asserted the applicant had worked well for a few months then in April 2008, on the 22nd and 23rd, he “… disappeared for a couple of days off work.” (Transcript p.23, L.27)  He asserted the applicant did not have a medical Certificate for the time off, but he, the respondent “… just let it go and didn’t worry about paying him for those days off”. (Transcript p.24, L.1)

[20] The applicant asserted he was suffering from pneumonia on the two days in question and had a medical Certificate, but when asked if had he given the Certificate to the respondent the applicant replied: “No, he didn’t want them.” (Transcript p.25, L.10)

[21] The respondent elaborated on a further incident where the applicant had failed to turn up on a Monday.  The applicant’s mother, Mrs Doddy, telephoned to inform the respondent that the applicant had been in a fight and had been struck by a bottle on the head.  When the respondent asked if the applicant had a medical Certificate for that day, Mrs Doddy replied: I can grab one, because he got treated at the Summerdale Medical Centre.” (Transcript p.34, L1)

[22] However the applicant interjected, “Yes, I had one”. (Transcript p.34, L7)

[23] The applicant asserted that the respondent only requested his tax file number after he had lost his job.  He further asserted that he had never received “proper” pay slips, only a note with his name on it and a net amount.  There was no indication of any tax deducted or superannuation contributions paid on his behalf. The applicant did confirm he had received a Group Certificate for the relevant time of his employment.  The Certificate indicated the applicant had earned $6,490.00 however he asserted, when tallying up his individual pay notices he had only earned $5,560.00 plus $278 deducted in tax.

[24] The applicant stated he had been engaged as an un-apprenticed junior, although he had asked many times if he could get an apprenticeship.

[25]  Mr R Farquhar and the respondent confirmed the applicant had sought to be given an apprenticeship.  The respondent asserted the applicant had been engaged as a “trainee apprentice” on probation for the first three months, but that he, the respondent, had extended the probation to six months.  The respondent, at page 9 line 43 and over to page 10, asserted:

 

 MR FARQUHAR: He was employed as a trainee apprentice.

 

THE COMMISSIONER: Now, do we have any proof of that?

 

MR FARQUHAR: I can bring witnesses forward if – or get affidavits if we need them.

 

THE COMMISSIONER: Okay. Then it will have to happen, okay?”

 

[26] The respondent asserted that it was the applicant’s poor performance that had dissuaded him from offering the applicant an apprenticeship, instead he had extended the probationary period.  The respondent cited, at page 6, line 38 of transcript:

 

“We took the option to extend his probation period to six months, which we are quite entitled to do under the guidelines of the Apprenticeship Commission…”

 

[27] In correspondence received by the Commission on 8 September 2008, the respondent provided an undated note from JobNet – Australian Apprenticeship Centre.  The writer, Ms Jenny Cooper, stated “3 month probation period – Can be extended for another 3 months”.

[28] The applicant sought direction from Workplace Standards Tasmania as to his legitimate position.  Exhibit A2 is a letter from Mr Peter Bell, an Inspector with Workplace Standards Tasmania.  In the letter Mr Bell confirms that the applicant had never been registered as an apprentice by Skills Tasmania.  Nor was there a record of a request to Skills Tasmania to extend the probationary period to six months.  Mr Bell noted that there was no provision in the Furnishing Trades Award for an extension to an apprentice’s probation period.  In his view the applicant, for other than the first three months, should have been paid as an un-apprenticed junior.

[29] The applicant disagreed with the respondent’s assertion that he had only worked 23.5 hours overtime, but acknowledged that he had no paperwork to verify a different position.  He claimed, however, that he had worked 21 hours overtime in January alone.

[30] It should be noted that none of this overtime is reflected in the “Hours & Wage Record” provided by the respondent.

 

FINDINGS  

[31] The same respondent featured in another decision[1] in matter T13180 of 2008, heard on the same day following this matter.  And like T13180 of 2008, this matter suffered from lack of verifiable paperwork which the respondent is obliged to provide as required under the Act. At Clause 75, subclauses (1B), (1C) and (1D) it states:

“(1B) An employer must provide each employee with written advice of pay details for each pay period.

Penalty:

Fine not exceeding 20 penalty units.

(1C) The pay advice provided to the employee by the employer must include, as a minimum, the following:

(a) the name of the employer;
(b) the name of the employee;
(c) the date and period for which payment is being made;
(d) the employee’s classification;
(e) the employee's weekly wage or hourly rate;
(f) the number of ordinary hours the employee worked in the relevant pay period;
(g) the number of additional or overtime hours worked in the pay period and the rate at which those hours have been paid;
(h) the amount of any paid leave, including holidays;
(i) any amount paid as an allowance;
(j) any other amount included in the gross wage;
(k) all deductions from the gross wage, including tax;
(l) the net wage paid.

(1D) Where employer-paid superannuation instalments are made on behalf of an employee, the amount paid and the fund into which it is paid is to be specified on the employee's pay advice.”

[32] I now turn to the applicant’s dismissal.  There are inconsistencies in the applicant’s evidence which are of concern.  From the “Hours & Wages Record” it appears the applicant had a reasonably good attendance record until the last few weeks of his employment.  He argued that the days he had off in April were covered by a medical Certificate.

[33] The applicant asserted the respondent did not want to accept the medical Certificate, yet the applicant lost two days’ wages for the time off in April.  There was no evidence the applicant objected to losing the two days’ wages.  One would suspect had the applicant been legitimately off work, he would have insisted on being paid sick leave.

[34] The Commission was also presented with the contradiction of the applicant’s mother asserting she could get a medical Certificate for the time the applicant had suffered head injuries, while the applicant asserted he already had one.  But he did not present it.

[35] The applicant stated that there was “no point” in going into Roberts, the morning meeting point for the crew, because there was no one there.  Yet on further examination he admitted he knew that the owner was present.  The applicant also, in my view, tried to legitimise leaving Roberts before the crew arrived by inferring that the crew might be elsewhere.  He asserted that the normal start point was the respondent’s home at Bridgenorth, “70% of the time”.

[36] The respondent rejected this proposition.  The respondent and Mr R Farquhar gave very plausible explanations of when they operated from the respondent’s home and when they used Roberts.  It would appear logical that for the vast majority of the time the crew would leave from Roberts.  In my view the applicant was trying to mislead.

[37] The applicant asserted he was sick on Tuesday, 24 June 2008.  There was corroborated evidence that the respondent tried to contact him on 24th and 25 June 2008.

[38] The applicant gave no credible reason why he did not wait for the crew on 25 June 2008.  I accept Ms Parker’s evidence that she witnessed the applicant returning home at about 9.00am on 25 June 2008.  However, there was no evidence to corroborate the applicant’s assertion that he waited around at Roberts for approximately 40 minutes before leaving.  Indeed, the hearsay comment by the owner of Roberts that the applicant left within ten minutes is consistent with the crew’s normal arrival at Roberts between 15 and 20 minutes past eight.  A fact, of which, the applicant would have been fully aware.

[39] The applicant gave no plausible reason for not going to work on the 26th or 27 June 2008.  The comment allegedly made by the applicant when asked where he had been for the three days by Mr R Farquhar of “nowhere” does not cast any light on his reasoning.

[40] In the normal running of a business where an employee is seen to be failing to meet his obligations, that employee is normally counselled in some way and warned of the consequences of continuing the same actions.  This matter is muddied by that fact that the applicant and the respondent appeared to have communicated via Mr R Farquhar, not an effective process.

[41] The applicant asserted he tried on numerous occasions to contact the respondent, but only sent a text message to Mr R Farquhar mid-way through the day 27 June 2008, offering no explanation but seeking the whereabouts of his wages.  No evidence was presented that the applicant was in any way impeded from communicating with Mr R Farquhar on 25th or 26 June.  Indeed there was no evidence produced that the applicant was in any way impeded from returning to work on 26th or 27 June 2008.

[42] It is my opinion, that had the applicant shown more maturity one may have come to the conclusion that he had abandoned his employment by failing to turn up for three days in a row.  The applicant’s failing to contact the respondent either by telephone, text or in person would support the abandonment theory.

[43] It is my view that the applicant did not consciously abandon his employment.  He is immature and probably did not appreciate the extent to which his behaviour jeopardised his employment.  However, the respondent has a business to run and must depend on the reliability of his staff to maintain an effective operation.  It is obvious that the respondent came to the conclusion that the applicant’s unreliability was unacceptable.  In my view, he had reasonable cause to come to such a conclusion.

[44] The Act puts the onus on the employer to show a valid cause for terminating an employee’s employment.  At Clause 30 (5) the Act states:

 

“Where an employer terminates an employee’s employment, the onus of proving the existence of a valid reason for the termination rests with the employer.”

 

[45] The respondent had a legitimate reason for terminating the employment of the applicant satisfying the requirements of the Act.  The applicant was not unfairly dismissed, and I so find.

[46] I now turn to the matter of the applicant’s employment status.

[47] The respondent assured the Commission that he could produce witnesses or provide affidavits to confirm the applicant was a “trainee apprentice”.  The respondent failed to do so.

[48] The award is quite specific as to what constitutes a legitimate apprenticeship.  There appears to have been no liaison between the respondent and Skills Tasmania to indicate the respondent was even contemplating indenturing the applicant.  There was no evidence educed to convince me the applicant was anything other than a junior labourer.

[49] In his correspondence, Exhibit A2, Mr Bell came to the conclusion that the applicant had been a probationary apprentice for the first three months of his tenure with the respondent.  For want of any evidence to support this conclusion, I cannot agree.  In my view the applicant was, in Mr Bell’s parlance, an “un-apprenticed junior” while working for the respondent, and I so find.

[50] I turn now to the underpayment of wages.

[51] According to the Furnishing Trades Award, No. 1 of 2007 (Consolidated), the applicant should have enjoyed the junior rate of pay of 55% of the prescribed rate for a Production Employee, Level P3, amounting to $311.50, some $50.70 per week more than he was earning for the duration of his employment, and I so find.

[52] It follows that any overtime accrued would be at that base rate of the above classification.  The respondent had a practice of paying cash in hand for overtime worked, at the base rate as demonstrated in T13180 of 2008. This may have been the case in the instant matter. However, for want of proper time records I can only accept that the applicant worked 23.5 hours overtime at time and a half, and I so find.

[53] The applicant was, in my view, summarily dismissed.  As such he is entitled to one weeks pay in lieu of notice, and I so find.

[54] Further, he is entitled to wages for the two days of 23rd and 24 June 2008, being: one day that he attended for work the other he was off on sick leave, and I so find.

[55] Finally, there was no evidence produced of any Superannuation payments made on behalf of the applicant.

 

[56] In accordance with the award and the requirements of the Superannuation Guarantee (Administration) Act 1992, the applicant is entitled to have 9% of his ordinary time earnings paid into his nominated superannuation fund.

 

ORDER 

 

I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T13184 of 2008 that CK & S Farquhar trading as CK & S Farquhar Carpet and Vinyl pay to Clinton Tony Doddy the sum off two thousand and two hundred and twenty seven dollars and seventy eight cents ($2,227.78), made up as follows:

 

 

$

 

 

One week’s pay in lieu of notice

311.50

2 days unpaid wages

142.60

23.5 hours overtime at time and a half

288.96

Underpayment of wages for 23 weeks

1,166.10

Underpayment of annual leave

318.62

 

 

Sub Total

$2,227.78

 

 

 

And, the sum off six hundred and eighty four dollars and five cents ($684.05) to Clinton Tony Doddy’s nominated superannuation fund, made up as follows:

 

 

$

 

 

Superannuation at 9% of $7660.60

684.05

 

The above sums to be paid by no later than the close of business on 19 December 2008.

 

 

 

 

James P McAlpine
Commissioner

 

Appearances:
Mr R Doddy (1.8.08) and Mrs L Doddy (28.8.08) for Clinton Tony Doddy
Mr C Farquhar for CK & S Farquhar trading as CK & S Farquhar Carpet and Vinyl

 

Date and Place of Hearing:
2008
August 1, 28
Launceston