T10697
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Kentish Council and Kevin Lewis Winduss
Appeal against a decision handed down by Commissioner Abey arising out of T10298 of 2002 - Appeal grounds 3 and 4 upheld - new Order issued REASONS FOR DECISION [1] In a decision in Matter T10298 of 2002, Commissioner Abey determined that Kentish Council pay to Kevin Lewis Winduss the sum of Twenty seven thousand and eighty three dollars ($27,083) in settlement of his claim, lodged pursuant to s.29(1A) of the Industrial Relations Act 1984 (the Act). [2] The payment ordered settled the dispute notified by awarding 5 months salary to the respondent. [3] An appeal, pursuant to s.70(1)(b) of the Act, was lodged by Kentish Council (the appellant) against the decision of Commissioner Abey citing the following grounds of appeal:
[4] It was submitted by the appellant that the respondent, in his s.29(1A) application to the Commission, identified three matters which he claimed were matters in dispute with the Appellant. The three matters were:
[5] The appellant submitted that the third matter, being the alleged breach of an award or agreement, was not pursued by the respondent and was not subject to any specific finding by the Commissioner. [6] Appeal grounds 1 and 2:
[7] The appellant does not challenge the finding of the Commissioner that the termination of the respondent was a "clear case of redundancy" but submitted that the Commissioner made no finding as to the date that the position of Works Manager, the position held by the respondent, was abolished. [8] The respondent submitted that the Commissioner had found that the evidence supported the date of redundancy for the position of Works Manager as being 26 May, 2002, and that it was not necessary to expressly state such was the case. Further the respondent agreed that the termination was a case of redundancy and relied on the content of letters [R13 A9] from Mr Holwerda which referred to the termination as being in respect to the position of Works Manager. [9] The letter of 9 January, 2002, indicated that the respondent would continue in his current role and "on the conditions included in your existing contract." That letter also noted that the respondent had not applied for the position of Technical Services Manager which at that date remained vacant. [10] It was submitted by the appellant that the only appropriate finding as to the date on which the respondent's position of Works Manager was made redundant was 15 October, 2001. In written submissions the appellant addressed the evidence before the Commissioner to support the view that 15 October, 2001, was the appropriate date. [11] It was said that:
[12] It was submitted by the appellant that some ambiguity existed in correspondence from the appellant to the respondent in respect to the respondent's contract of employment and its expiration by the effluxion of time on 17 January, 2002. It was submitted that Mr Holwerda was incorrect in his assumption that the respondent's contract would expire on 17 January, 2002, and by letter dated 9 January, 2002, offered the respondent a further one month of employment which could be extended by mutual agreement if requested. By a further letter dated 18 April, 2002, Mr Holwerda informed the respondent that his position of Works Manager (this was said to be an error as the position in fact was that of Technical Services Manager) would become redundant from 28 June, 2002, and his services would be terminated effective from that date. [13] The evidence of Mr Holwerda in the hearing below was that many of the duties and responsibilities of the role of Works Manager "became redundant because they related to the purchaser role with Mersey Works which was to be no more from 15 October onwards. Other duties were incorporated in the technical services manager's position, the technical officer's position and the Supervisor's position."1 The respondent however testified that he did not accept the new position and that evidence is supported by the fact that he did not apply for the position when it was advertised. It was submitted that there had been no new contract entered into only that the original contract had been extended. [14] Nevertheless after 15 October, 2002, Mr Holwerda consistently referred to the position as being that of Works Manager in correspondence between the appellant and the respondent. [15] The respondent does not accept that the references by Mr Holwerda to the position being that of Works Manager are ambiguous, to do so would be in contradiction of the content of correspondence provided to the respondent during the course of his employment. [16] It was submitted by the appellant that the position of Works Manager was redundant effective from 15 October, 2001, and that the respondent was kept in employment until May, 2002, with payment until 28 June, 2002. As such the respondent had received at least six months notice of his position being made redundant which satisfied the term of his contract. [17] Further it was submitted by the appellant, that the ambiguity did not alter the fact that the position of Works Manager was abolished when the employees were transferred back to the appellant's employ from Mersey Works on 15 October, 2001. [18] The appellant argued that the Commissioner below did not determine a date on which the respondent's position became redundant nor did he make a finding of fact as to what happened between the date of the redundancy and the date of termination. As such it was submitted that the Commissioner had "vitiated the exercise of discretion to grant a remedy pursuant to s.31 and as a consequence that discretion must now be exercised by the Full Bench." [19] The events that transpired between the date the appellant claimed the respondent was advised that the position of Works Manager would be made redundant and the date of termination can be summarised as follows:
[20] It was submitted that the respondent could not have continued in his previous position of Works Manager as the position no longer existed but that he had maintained his level of salary and employment benefits until termination. [21] The appellant argued that the Commissioner's finding that he was required to award compensation for breach of a contractual provision was an exercise of judicial power and not an exercise of arbitral power. As such the Commissioner acted outside his jurisdiction in so ordering. We note however that a claim that the Commissioner was acting outside his jurisdiction was not a ground of appeal nor was it a matter raised in the proceedings below. [22] The Commissioner noted that neither party had raised any issues of jurisdiction during the proceedings below. He said "No jurisdictional issues were raised by either side."2 [23] This was conceded by the appellant and it was submitted that the respondent was then seeking reinstatement for the balance of his two year contract in settlement of his application. [24] Whilst it was not strenuously argued on appeal that the Commissioner acted outside jurisdiction and, although not tendered as an authority before us, we note the observation of Deane J in Sullivan v Department of Transport [(1978) 20 ALR 323 at 343]:
[25] The appellant submitted that considering the process undertaken and the information available that the respondent had been provided general notice that was "fair, reasonable and adequate in the circumstances." [26] Clause 3.5 of the respondent's contract of employment did not refer to redundancy and was not contemplated to do so according to the appellant, likewise should the clause be dispositive the appellant could have given 6 months notice or paid the equivalent of 6 months salary and benefits. [27] It was submitted by the appellant that the respondent entered into a new agreement effective 15 October, 2001, in which he worked for more than 7 months, notice of termination of that new employment was given on 9 and 17 January, 2002, albeit under an incorrect assumption by Mr Holwerda that the respondent's contract of employment would expire by the effluxion of time on 17 January, 2002. [28] We disagree that there was a new contract of employment. As noted previously Mr Holwerda informed the respondent that he would continue "in your current role and on the current conditions included in your existing contract..." [29] The evidence and particularly the exhibits tendered reveal that the respondent continued employment in the position of Works Manager until notified by Mr Holwerda by letter dated 18 April, 2002, that "your position of Works Manager will be officially abolished from June 28, 2002, and that you will become redundant from that date and your employment terminated. I trust that in the meantime you will continue to undertake your current duties diligently in accordance with the existing roles and responsibilities and complete the current year's works program." [30] The existing roles and responsibilities are those found in the contract of employment and Mr Holwerda makes it clear in the letter of 18 April, 2002, that no appointment had been made to the new position of Technical Services Manager and that he proposed recommencing the process to fill that position. It would seem to us therefore that the position of Technical Services Manager was not an operative position at the time of the notice of termination being given to the respondent. As such the only position to be made redundant was that, as alluded to by Mr Holwerda, of Works Manager. [31] We find no error with the finding of the Commissioner that the position declared redundant was that of the Works Manager. Having made such finding it was reasonably open to him to award a payment similar to the entitlement prescribed in the contract of employment as the prescribed notice therein had not been provided. [32] We reject appeal grounds 1 and 2. [33] Appeal grounds 3 and 4:
[34] It was submitted by the appellant that even had the order made by the Commissioner been within jurisdiction and calculated by reference to clause 3.5 of the respondent's contract of employment the respondent had been given 2 months and 10 days notice of termination. This submission relied on acceptance of the letter of 18 April, 2002, as being notice advising that termination would be effected on 28 June, 2002. [35] It was submitted that as the contract provided that notice could be satisfied by giving notice of a period of time or payment in lieu that notice was partly satisfied by notice in time and partly by payment in lieu. It was argued that the Commission had given no credit to the appellant for the 2 months and 10 days notice given on 18 April, 2002. [36] The respondent submitted that it was within the power of the Commissioner to settle the industrial dispute before him by reference to the contract of employment and to rely on the entitlement to the period of notice prescribed therein. [37] The Commissioner said "Whilst a precise date of termination was given in the letter of 18 April, 2002, this was subsequently changed by letter of 22 May, 2002, and the latter must prevail."3 Accordingly the respondent submitted that the Commissioner had determined that the precise date of termination of the position of Works Manager was as prescribed in the letter from Mr Holwerda dated 22 May, 2002, that being 26 May, 2002. [38] We disagree as it is our view that notice was provided to the respondent by the letter dated 18 April, 2002. The letter dated 22 May, 2002, which made reference to your position which, we are satisfied, is reference to the position of Works Manager, did no more than bring forward the date on which the respondent would physically cease to attend the workplace but maintained the previously advised date of termination as 28 June, 2002. [39] Accordingly we are of the view that the precise date of termination was that provided in the letter dated 18 April, 2002. We therefore accept the position of the appellant that the respondent was given a notice period of 2 months and 10 days. [40] We find that the Commissioner was in error in determining that notice was provided on 22 May, 2002. The letter of 22 May, 2002, did not alter the date of termination which was 28 June, 2002, but merely provided that the respondent would not be required to attend for work after 26 May, 2002. He received all salary entitlements up to 28 June, 2002. [41] We uphold appeal grounds 3 and 4 and the order determined by the Commissioner will be revoked. [42] An alternative position was proposed by the respondent that there existed an entitlement to a severance payment as the position had been declared redundant and that the Full Bench, pursuant to s.71(13)(b) of the Act, should consider an order for severance pay as well as the notice required by reference to the contract. The respondent relied on a decision of Deputy President Johnson in Fellows v Lloyds North [T8150 of 1998] where His Honour said "I take that view because the ILO Convention and the decided cases show that redundancy and notice are separate issues." [43] The appellant opposed the alternative position proposed by the respondent. [44] The issues raised in Fellows v Lloyds North were not discussed before us or at the hearing below, accordingly we decline to make any additional order. [45] We revoke the order of the Commissioner and the following order gives effect to our decision. [46] We hereby order that Kentish Council, High Street, Sheffield, Tasmania 7306 pay to Kevin Lewis Winduss, 10 Quiggins Grove, Ulverstone, Tasmania 7315 an amount of Nineteen thousand, eight hundred and ten dollars (19,810.00). The amount determined has been calculated as follows: $65,000.00÷12=$5,416.60 x 3=$16,249.80, plus $65,000.00÷365=$178 x 20=$3560.00, total $19,809.80 rounded to $19,810.00. [47] Such payment to be made within 21 days from the date of this decision.
P L Leary Appearances: Date and place of hearing: 1 Original transcript PN1890 |