T11860
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Patch's Variety and Samantha-Jo Lewis
Appeal against a decision handed down by Commissioner JP McAlpine arising out of T11576 of 2004 - Original order revoked - new Order issued REASONS FOR DECISION [1] Patch's Variety has appealed the decision of Commissioner McAlpine in which he ordered "that Samantha-Jo Lewis be reinstated immediately to continue her training with Patch's Variety." He also ordered "that all wages and accrued benefits due to her from and including the 10 June 2004, until the day she re-commences work with Patch's Variety, be paid in full." [2] The grounds of appeal are as follows:
[3] In considering the appeal the Commission relies on the principles established in the decision of the High Court in House v The King (1936) [55CLR499, at 504-505 per Dixon, Evatt and McTiernan] which provides:
[4] Appeal ground 1:
[5] The applicant in the hearing below, Samantha-Jo Lewis filed her application to the Commission 22 days after the termination was effected. S.29(1B) prescribes:
[6] The Commissioner granted the extension of time finding that Ms Lewis had taken "reasonable means to resolve the issue" and once aware that negotiations were not going to be successful filed an application "by the quickest means available." The application was filed electronically. [7] The appellant referred to a number of decisions which it relied on in the hearing below to support an objection to an extension of time for the filing of the application. The Commissioner rejected those decisions and said:
[8] It was agreed that attempts to resolve the dispute had been in progress since the termination was effected, Ms Lewis sought the assistance of the Office of Post Compulsory Education and Training who raised the issue with the appellant on her behalf. When it became clear no resolution was likely an application was filed. [9] The appellant relied on the words "exceptional circumstances" and argued that there were no such circumstances in respect to this application. There is no definition in the Act as to what constitutes exceptional circumstances and each application must be considered on its particular merits. The appellant referred to the decision of Commissioner Abey in Stephen Izard v RG Simons as Trustee for RG Simons Family Trust trading as T & H Investments (Izard) [T11310 of 2004] where he made the following comment:
[10] In Izard Commissioner Abey considered matters relevant to an extension of time application as being the following:
[11] Those principles are widely adopted and we agree with them. Commissioner McAlpine has considered the submissions of the parties and the authorities provided by the appellant, which included Izard, and has exercised his discretion to extend the time for filing by the one day required. [12] We find no error and reject appeal ground 1. [13] Appeal ground 2:
[14] The Commissioner found that:
[15] The applicant attended the premises on 11 June, 2004. She said that when she "called into Patch's I went straight upstairs to see......" the person who "handled all the wages and office stuff."3 She also said that she was informed that Jenny Fruin, a partner in the business and a signatory on the training agreement, "was acting on the information she had been given the previous day by Leon Brown and that, yes, my job was finished."4 [16] Ms Lewis also testified that when she visited the premises on 11 June, 2004, she had with her a medical certificate attesting to her ill health. She did not recall whether she had showed it to her employer at that time. [17] Whilst we agree with the submission of Patch's that there was no evidence that Ms Lewis had a discussion with Mr Brown on 11 June, 2004, we note that the application filed by Ms Lewis does suggest there was some contact with Mr Brown as it records:
[18] The evidence is contradictory as to the precise events on the day of 11 June, 2004, and perhaps some confusion as to who was spoken to, nevertheless we uphold appeal ground 2 as the Commissioner erred in respect to his finding that Ms Lewis spoke with the manager on that day. [19] Despite our view that the Commissioner erred and we uphold appeal ground 2, it is our view that such error is not fatal to his decision. [20] Appeal ground 3:
[21] It was the submission of the appellant that Ms Lewis intended having 10 June, 2004, as a day off work "no matter what" regardless of the medical certificate which the appellant said may well be a "red herring." Accordingly the Commissioner erred by not applying sufficient weight to the delay in producing the certificate. Ms Lewis testified that she did not recall whether she had shown the certificate to her employer on the day of 11 June, 2004, when she visited the premises, but it was produced at a later date by Mr Durkin who was assisting her in respect to her training agreement. [22] Ms Lewis had no entitlement to sick leave so was not required to provide a medical certificate for that purpose, it is not clear whether the employer sought a medical certificate as evidence that she was ill on the day in question but if such request was made the employer seemingly did not pursue Ms Lewis to provide that evidence. It is also not clear whether the provision of an acceptable medical certificate would have caused the termination of Ms Lewis to be reconsidered or overturned. [23] In the hearing below the evidence of Ms Lewis that she had informed the manager that she was feeling unwell and wished to go home, was not challenged by the appellant. [24] The medical certificate attests to Ms Lewis being unwell, we don't consider the fact that it was not produced on 11 June, 2004, as relevant and a matter on which the Commissioner should have placed much weight. Furthermore the fact that the employer rejected the medical certificate, and has taken action elsewhere in respect to that, is not something which we should take into account. We agree with the Commissioner that "the benefit of the doubt must be given to the employee until proven otherwise..." [25] We reject appeal ground 3. [26] Appeal ground 4:
[27] It was submitted that during her six months of employment Ms Lewis had "received at least three written warnings for poor attitude to work and a poor attendance record, this would have been in addition to numerous verbal discussions with managers."5 [28] The written warnings were not provided to the Commissioner although they were provided at a later date, and no sworn testimony was provided to support the allegations of poor performance and poor attitude. The only sworn evidence provided by Patch's was that of Mr P Fruin, who was not present at the time Ms Lewis left the premises, and his evidence was hearsay only. Mr Brown, the manager responsible for the termination, was not called to present evidence in support of the appellant. [29] The paucity of evidence in both the hearing below and the appeal makes any consideration and/or determination as to poor performance or poor attitude difficult. Nonetheless there is a history of attendance issues, reference to some approved absences, early departures and the "seven full days equivalent" sick leave absences for the short employment period. [30] It was submitted that Ms Lewis leaving work without permission was the "last straw" and resulted in her termination. We recognise that there is a relationship between poor attendance and allegations of poor performance and poor attitude and we are of the view that some weight should be attributed to each aspect. We note also that there did not appear to be any effort by the appellant to address the alleged concerns about performance and attitude. We consider the issue of attendance in appeal ground 7. [31] We reject appeal ground 4. [32] Appeal ground 5:
[33] The Commissioner found that "...the process of dismissing a trainee from their employment, for whatever reason must follow the process clearly described in the Act, which is supported by the other authorities."6 He further said:
[34] Ms Lewis was engaged under a Training Agreement and Mission Australia was the registered training organisation. The Training Contract document refers to the following obligations , where relevant, under the heading Both parties agree that:
[35] It was submitted that an application to cancel the agreement was filed by Patch's, seemingly on 27 August, 2004, but the application was opposed by Ms Lewis and, it was submitted, could not proceed. The Training Contract also provides the following obligations under the heading The Employer must:
[36] The Training Contract also provides that:
[37] It was submitted on behalf of Ms Lewis that an application in respect to the dispute was lodged with the Training Agreements Committee under the provisions of the Vocational Education and Training Act 1994 on 15 September, 2004. [38] The actions taken by both parties under the provisions of the Training Contract post-date Ms Lewis' termination. [39] The training agreement has been suspended by the Tasmanian Training Agreements Committee pending the outcome of this appeal. [40] The National Training Award provides at clause 10, Conditions, that the employment of a trainee on probation may be terminated by the giving of notice in accordance with the relevant award provisions. It would seem that no action was taken to terminate Ms Lewis during her period of probation. [41] The appellant submitted:
[42] Whilst the above submission makes some sense it does ignore the fact that there is a process available for cancellation of the training contract which does not require the agreement of both parties. As noted previously that process was not followed prior to the termination. [43] It is, and was, the responsibility of the parties to that training agreement to do what is required under the Vocational Education and Training Act, 1994, to bring the agreement to an end. The training contract requires that the employer (Patch's) "employ and train..." the trainee (Ms Lewis) and that Ms Lewis "...work and observe the conditions of her employment and follow the lawful directions of the employer." [44] Accordingly we are of the view that the training contract continues in force. We address how that affects this application in our considerations in respect to appeal ground 7. [45] We reject appeal ground 5 insofar as the Commissioner found that the appellant failed to comply with the provisions of the Vocational Education and Training Act 1994. We agree with his finding. [46] Appeal ground 6:
[47] This ground was not pursued by the appellant. [48] Appeal ground 7:
[49] It was submitted that the penalty imposed was out of proportion to any fault on the part of the appellant. Patch's argued that the time taken for the matter to be heard and determined was excessive and not the fault of the parties to the application but that the timing was at the discretion of the Commissioner below. [50] We note that no request was made by either party for the matter to be dealt with expeditiously and it was listed and heard in the normal way. [51] We reject the criticism that the matter should have been referred to another Member or dealt with in a shorter period of time. In the absence of any request to do so or any concern having been raised by either party as to the time taken we find no error and reject that part of appeal ground 7. [52] It was submitted that the reason for the termination was Ms Lewis leaving work early, allegedly, without permission. This, according to Patch's, was "the last straw" as Ms Lewis' attendance and performance record was unsatisfactory. Ms Lewis had taken her award entitlement to sick leave in her period of six months employment. [53] As we have noted previously we are not satisfied that there was sufficient evidence as to allegations of specific poor performance and poor attitude however we do agree that the attendance record of Ms Lewis was extremely poor and her regular absences would indicate a pattern that would most likely continue if the employment was maintained. There is no doubt therefore, in our view, that the employment relationship would not be likely to continue and that Ms Lewis, due to her own behaviour, could have no reasonable expectation of continuing employment. We think that the Commissioner failed to take sufficient account of the parlous attendance record of Ms Lewis. [54] As such we consider that the penalty imposed on the appellant is 'unreasonable and unjust.' [55] We have previously found that the training contract continues as neither party sought to cancel or terminate it, as such it is our view that the employment contract also continues until such time as the training contract is terminated. That is despite the appellant attempting to terminate the training contract which was opposed by Ms Lewis. [56] We agree with the Commissioner that the termination of Ms Lewis lacked procedural fairness and was poorly executed. [57] However in consideration of the circumstances of this application and in settlement of Ms Lewis' s.29 application we are of the view that Ms Lewis should not be reinstated but should receive compensation, as provided by s.31(1B)(b) of the Industrial Relations Act 1984 (the Act), as if she were still employed but only until the date that the appellant sought to cancel the training contract, which we were advised was 27 August, 2004. [58] It is our view that had the parties followed proper procedures Ms Lewis' employment would have come to an end by that date. Whilst we maintain the view that the contract of employment remains in force until the termination of the training contract, in this matter we see no justification for Ms Lewis to receive payment until such time as the training contract is terminated. The cancellation, or otherwise, of the training contract can only be satisfactorily resolved by the training authority. We do not see that Ms Lewis should receive a benefit over and above that available to any other applicant pursuing a claim under the Act merely because she was able to oppose the termination of her training contract thereby prolonging her contract of employment. [59] We uphold appeal ground 7 but only in respect to remedy. [60] We make the following comments:
[61] We revoke the order of Commissioner McAlpine and replace it with the following: ORDER We hereby order that Patch's Variety pay Samantha-Jo Lewis compensation which represents payment and all entitlements as if she were at work from the period 11 June, 2004 to 27 August, 2004. Payment should be made within 7 days from the date of this decision.
P L Leary Appearances: Date and place of hearing: 1 Decision T11576 of 2004 para 23 |