T11559 and T11563
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Classic Video Pty Ltd trading as Video City and Tennille Joanne Avadon Tennille Joanne Avadon and Classic Video Pty Ltd trading as Video City
Appeals against a decision handed down by Commissioner Abey arising out of T11275 of 2004 - Appeals rejected - order confirmed REASONS FOR DECISION [1] These are two appeals against the decision of Commissioner Abey in Matter T11275 of 2004. The Commissioner ordered that:
Appeal No. T11559 of 2004 [2] Classic Video Pty Ltd trading as Video City (the employer) has appealed the decision of Commissioner Abey and cites the following grounds:
Appeal No T 11563 of 2004: [3] Tennille Joan Avadon (the employee) has also appealed the decision of Commission Abey on the following grounds:
[4] The employer argued that the appeal filed on behalf of Ms Avadon was filed outside the prescribed time limit in the Industrial Relations Act 1984 (the Act) which states:
[5] It was submitted that the order of the Commissioner was dated 7 June, 2004, and the decision and order was emailed to both parties that day at 1.52pm. Accordingly the employer argued that any appeal should have been filed no later than 28 June, 2004. The appeal by the applicant was filed 29 June, 2004, and as such was outside the prescribed time limit. [6] The employee's representative had confirmed receipt of the decision and order by letter to the employer dated 7 June, 2004. [7] In response to the alleged late filing of the employee's appeal it was submitted that service by email does not constitute service as provided in s.88 of the Act which prescribes as follows
(a) in the case of a person who is neither a body corporate nor a firm -
[8] The employer did not wish to proceed further with the claim that the Ms Avadon's appeal was filed outside the prescribed time limit and noted that proposed amendments to the Act may address service of documents by email. T No. 11559 of 2004: [9] The employer relied on the principles found in the High Court decision in House v King which state:
[10] The employer argued that the Commissioner had "acted on a wrong principle and had made mistakes as to the facts that were before him and has not taken into account some material considerations." Appeal ground 1:
[11] The Commissioner found that the employee was properly covered by the provisions of the Miscellaneous Workers Award (the MW award). He said:
[12] The employer submitted that the employee had been initially employed pursuant to the the MW Award but this changed when she moved to the support office where her role did not require library attendant duties. As such the appropriate award coverage was the Clerical and Administrative Employees (Private Sector) Award (the C & A Award) as the employee was engaged in a clerical and/or administrative capacity. The employee was then told by the employer that she was to return to the library and it was submitted that the appropriate award would have again been the MW Award which has application to library attendants and library supervisors. Whilst not clear, we have concluded, as did the Commissioner, that Ms Avadon was to return to her previous position in the Davey St library. There was no reference to any specific position or any other position. [13] Accordingly the duties performed, or which would have been performed by Ms Avadon and as was found by the Commissioner, satisfy the classification descriptions for Library Attendant and Library Supervisor found in the MW Award rather than the generic descriptions in the C & A Award. [14] The Scope clause of the MW Award prescribes as follows:
[15] The definition makes specific reference to an employee in a video outlet, which is the business of the employer, and represents the classification under which the employee was initially engaged and represents the duties Ms Avadon was instructed to perform at the time of her termination. [16] It was argued by the employer that it is an established practice in this Commission with respect to industry awards to determine the industry within in which the employer is engaged in accordance with the scope clause and then determine an appropriate classification for the relevant employee. The MW Award, like the C & A Award, is not an industry award and is a classification specific award. The MW Award applies to employees employed in the classification of Library Attendants/ Supervisors in video outlets. [17] It is our view that the C & A Award does not have application to the employee in this matter. The employee was employed pursuant to the MW Award and entitlements were accrued by reference to that award. [18] We agree with the submissions of the employer that it is appropriate to first determine the industry of the employer, however in the case of the 2 awards the subject of this appeal the awards are not industry awards but are occupation awards. [19] We do not agree that the Commissioner misapplied the award applicability test. [20] Appeal ground 1 is rejected. Appeal ground 2:
[21] The employer argued that Ms Avadon was more appropriately classified at Level 3 rather than Level 4 as determined by the Commissioner. The employer claimed that to satisfy the Level 4 requirements the employee must be "appointed by the employer to supervise employees at levels 1 to 3 and generally supervise the library." It was submitted that the Commissioner did not provide in his decision any reason as to why he had determined that the employee was Level 4. We reject that submission as the Commissioner has considered the memorandum from Mr Ewing informing staff of Ms Avadon's position of Roster Supervisor at the Davey St library. That memorandum states that the role will be extended to "include comprehensive training of staff." The Commissioner has noted the requirements of the position and decided accordingly. He has provided reasons for his determination of the appropriate level. [22] The employer claimed that there was no evidence that Ms Avadon was appointed by the employer to Level 4 or that she had completed the required training modules and that there was no evidence that she supervised employees at levels 1 to 3 or generally supervised in the library. Accordingly she could not be classified at Level 4. [23] On behalf of Ms Avadon it was argued that even if she had not been formally appointed to the role of Level 4 the work performed was "within the collective definitions for Library Attendant and Library Supervisor in the MW award." [24] There is nothing in the award to prevent an employee being appointed to a level without having first completed training modules, in any case in this matter it is arguable whether in fact such modules exist, nevertheless the evidence before the Commissioner as to the work performed by the employee was not seriously challenged by the employer. It would seem to us that the classification is the appropriate one for the employee in question in the absence of any formal notification or position descriptions. The evidence would support such conclusion. [25] Ms Elliott testified that "she [Ms Avadon] was employing people, interviewing people."2 Mr Ewing testified that "in fact she had enjoyed doing the training, doing the work that you would say was above a library attendant as such... I offered her an additional sum of money of $50 per week....." 3 [26] We reject appeal ground 2. Appeal ground 3:
[27] The employer relied on the evidence of Ms Avadon in respect to the functions she performed in her role as Human Resource Manager, this was the role she held prior to being informed that she would return to the Davey St library, and was mainly an administrative role. The Commissioner has acknowledged the role and has identified that it involved administrative functions however he has noted that Ms Avadon did relieve in the library on occasions whilst classified as Human Resource Manager. At the time of her termination she had been informed that she would be returning to the library and in the absence of anything more specific it would appear that it was intended that she would return to her previous position at the Davey St library. Likewise it is unclear as to how long she was to return to that position. [28] The employer relied on the fact that Ms Avadon worked in the library by choice, the evidence however does not support such submission as it would seem that Ms Avadon did so to keep the stores open due to staff shortages. Her sworn evidence indicates a commitment and responsibility to keep the libraries open and functioning when other employees were absent or did not turn up for work. She testified, in cross examination, ".....I went in to help at that time because there was no other option, and considering I was the head of the staff I was setting the example to go in and do that." When asked what work she performed she responded "Well, the library attendant work as well as HR from that point."4 [29] There is no dispute between the parties that Ms Avadon was required to return to the library although it is disputed as to how long that relocation was to last, nevertheless at the time of her termination she was engaged in that role and as such is the appropriate classification. Commissioner Abey found that "....at the time of the pay day in question (24/12/03) Ms Avadon had been instructed to work in a library environment for an extended period of time" and that her employment ceased effective 8 January, 2004. She was at the relevant time employed in the library. [30] The fact that Ms Avadon considered her role as administrative is irrelevant to the consideration of what classification applied at the time of her termination. The Commissioner has clearly spelled out his reasons and we agree with his findings. Further, we are of the view that he has applied sufficient weight to the matters relevant to those findings. [31] We reject appeal ground 3. Appeal ground 4:
[32] The employer argued that Ms Avadon's role in the library did not include the supervision of other employees. The Commissioner noted that in October 2003 a memo from the Managing Director indicated that Ms Avadon was appointed as Roster Supervisor (South) and that she would implement changes to the system and that her position would be extended to include comprehensive training of staff. Ms Avadon listed her duties and the Commissioner has considered those and determined the appropriate classification level, we also note that he has determined that where the evidence was contradictory he preferred the evidence of those witnesses other than Mr Ewing. [33] The employer argued that the evidence supports its position that Ms Avadon was employed in the support office in an administrative role, that submission disregards the direction by the employer that Ms Avadon was to return to her Davey St role and it was that role in which she was employed when terminated. It is the employment status at the time of termination which is the determining factor as to which classification applies. [34] We reject the submissions of the employer that the Commissioner made a mistake as to the facts. [35] Appeal ground 4 is rejected. Appeal grounds 5, 6 and 7:
[36] These 3 appeal grounds are addressed together. [37] The MW award provides, where relevant:
[38] The employer argued that the Commissioner erred in finding that the employee was entitled to payment for waiting time as she was not kept waiting. Alternatively if there exists an entitlement it was incorrectly calculated as any payment should have been calculated at ordinary time only. [39] The employer relied on a number of authorities. In Wahlgren v Transfield Power Systems Manufacturing (IRCA Decision 352/96) (Wahlgren) it was found that the employee did not wait at his place of employment and therefore was not entitled to payment for waiting time. In that matter the relevant award provided:
[40] In Wahlgren the relevant award did not prescribe that the employee "shall be deemed to be working during the time he is kept waiting" and was significantly different to the award provision the subject of this decision. [41] Likewise the decision of the Supreme Court of the Northern Territory in Laferia v Birdon Sands Pty Ltd (Civil LA 22 of 1997) where the award states that an employee kept waiting on termination "shall.........be paid waiting time at overtime rates until payment........" can be distinguished from the circumstances in this matter. [42] The employer drew our attention to a number of decisions which addressed the `concept' of waiting time, we have considered those decisions; however for the purpose of this appeal it is the prescription found in the relevant award which we must take into account. [43] Again the history of the provision provides a background as to its intent but regardless of that history and whether we agree with the concept of waiting time or not we are required to consider the actual words in the provision and how those words should be applied. That was the task before the Commissioner and that is the basis of the appeal not a reconsideration of the history or the principle but what the award actually provides. [44] The employer claims that the Commissioner erred in his calculations of the entitlement and that it should not be calculated on the basis that the employee be deemed to be working throughout the entire waiting period, that is seven (7) days a week and twenty four (24) hours per day. [45] It was submitted that had the employee been working during the period in contention there is no evidence to support that she would have worked any more than her normal time or ordinary hours of work, accordingly she should not be entitled to any more than what she would have been paid if at work. [46] The employer submitted that the Commissioner had correctly identified that the MW award contemplates payment by bank deposit so the issue of physically waiting to be paid does not arise and that the phrase `kept waiting' does not require the employee to be physically waiting at the workplace. [47] The Commissioner found that the employee was entitled to waiting time from the time when she ceased work on 24 December, 2003, until normal ceasing time on 8 January, 2004. He decided further that she would be paid as if she were at work in ordinary hours and any time outside normal hours would be paid at penalty rates for waiting time. [48] This finding was in accord with the decision of President Westwood who was required to interpret the clause in the MW award which "in all material respects" is the same wording as the current clause. The Commissioner noted that the President's finding was not binding as no declaration had been made however it was a persuasive finding on which he relied. [49] The employer claimed that the reason why payment was not made was due to an incorrect time sheet being provided, we do not need to address that submission as the Commissioner dealt with that issue in his decision. It was not by any action of Ms Avadon that the incorrect time sheet was provided and at paragraph 46 the Commissioner says:
[50] The award provision requires payment as if the employee was deemed to be working for the period of the waiting time. In this matter the employee was on sick leave, although we note the employer's refusal to acknowledge the medical certificate and pay the entitlement, nevertheless, we need to consider the award provision in the circumstances of this matter. [51] The entitlement can only accrue to an employee in an employment relationship and, simply put, an employee would be working, or on some kind of authorised leave, so the words deemed to be working would not be necessary unless it is intended to apply to the time outside the normal working hours. In this matter the employee was entitled to paid sick leave, which would represent normal work hours, so any waiting time for which the employee was deemed to be working would have to be the time outside normal work time for which paid sick leave was due. The award provides that payment shall be made during the time the employee is kept waiting. There is no definition as to what time is being considered other than the whole of the time during the period kept waiting. [52] The Commissioner found, and it is not challenged, that "there was no suggestion that the non-payment was a consequence of circumstances beyond the control of the employer. To the contrary, the non payment was the result of a deliberate act of the employer, who clearly knew what the outcome would be." [53] The employer, in the grounds of appeal, suggests that the intent of the waiting time clause is to only pay an employee whilst they were deemed to be working normal hours. If that were the case, and accepting an employment relationship must exist to attract the entitlement, it is our view that the clause would be meaningless as the employee would receive no additional benefit. [54] It would seem to us that this award, and possibly others, do not contemplate the electronic transfer method of payment of wages in respect to waiting time. The award does make provision for such type of payment of wages but the waiting time provision continues the anachronistic concept of an employee physically waiting at the pay office. There is no doubt an inconvenience and, in some cases disadvantage, to an employee not being paid on time however the inconvenience or disadvantage is somewhat diminished by payment through electronic transfer. The employee is not physically required to wait at the pay office until payment is received and is able to continue normal outside work activities. [55] Whilst we agree that some penalty should be imposed on an employer who does not honour his or her obligation to ensure wages are paid at the specified time and in this case in particular, where the delay was certainly avoidable and perhaps deliberate, however we do think that the penalty imposed in this award is probably excessive in the circumstances of a contemporary workplace. [56] Nevertheless we are required to consider the award provision and the grounds of appeal. We are satisfied that the Commissioner was correct in his construction of the award entitlement. [57] We reject appeal grounds 5, 6 and 7. Appeal No. T11563 of 2004: Appeal ground 1:
[58] It was submitted on behalf of Ms Avadon that the decision of President Westwood can be distinguished from the circumstances in this matter as the President was then dealing with an interpretation which had application only to employees following their termination whereas in the instant matter the employee was still employed. [59] Further it was argued that none of the authorities suggest that the entitlement ceases on termination. [60] The employer submitted that that part of the decision of Westwood P which found that "...the award does not bestow on persons who are no longer employees the right to be paid waiting time" should be accepted and that no entitlement can accrue once termination is effected. [61] Further it was submitted by the employer that the provisions of an award are only binding as an entitlement, or an obligation, whilst the employment relationship continues, and the meaning of an `industrial matter' means a matter pertaining to the `relations of employers and employees' therefore if no relationship exists no entitlement could accrue. [62] In this matter it is the words in the provision which are relevant and they provide that the employee "shall be deemed to be working." As such the submission on behalf of Ms Avadon must fail as the Commissioner found that there was no employment relationship after 8 January, 2004. That finding was not challenged. Once the termination has been effected any employee/employer relationship ceases; if there is no employment relationship the employee cannot be deemed to be working. There is no contract of employment and no entitlement can accrue. [63] We reject appeal ground 1. Appeal ground 2:
[64] Our findings in respect to appeal ground 1 apply to appeal ground 2. If there was no employment relationship no entitlement can accrue. Although final payment was not made until 3 February, 2004, the Commissioner had found that the employment relationship came to an end effectively on 8 January, 2004, accordingly the claim is for payment to apply for some 4 weeks after the termination had occurred and the employment relationship had ceased to exist. No entitlement existed for that period. [65] We reject appeal ground 2. [66] We confirm the decision and order of Commissioner Abey. ORDER Pursuant to Section 31 of the Industrial Relations Act 1984, I hereby order that Classic Video Pty Ltd trading as Video City pay to Tennille Joanne Avadon an amount of:
Such payments to be made not later than 5.00pm on 12 January 2005.
P L Leary Appearances: Date and place of hearing: 1 Original Decision paras 62, 63 and 64 |