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T12658

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against decision

Alan Griffiths
(T12658 of 2006)

and

Port of Devonport Corporation

 

FULL BENCH:
PRESIDENT P.L. LEARY
DEPUTY PRESIDENT P.C. SHELLEY
COMMISSIONER J.P. McALPINE

HOBART, 30 August 2006


Appeal against a decision handed down by Commissioner T.J. Abey arising out of T11272 of 2004 – appeal dismissed – decision upheld

REASONS FOR DECISION

[1] This is an appeal by Alan Griffiths against a decision of Commissioner Abey in matter T11272 of 2004. In that decision the Commissioner decided that:

"Mr Griffiths did have a reasonable expectation of continuing employment"[1] with his then employer the Port of Devonport Corporation [now the Tasmanian Ports Corporation] and that "Mr Griffiths was made redundant and is entitled to a severance payment."[2]

[2] The notice of appeal claimed that:

"1. Compensation offered is grossly inadequate;

2. The Compensation order awarded to me by Commissioner Abey is not consistent with other similar matters;

3. The Commissioner in reaching his decision made a legal error;

4. The Commissioner acted on a wrong principal;

5. The Commissioner gave weight to an irrelevant matter;

6. The Commissioner gave insufficient weight to a relevant matter;

7. The Commissioner denied me due process and natural justice."


[3] Mr Griffiths, the appellant, submitted that he would like his job back as part of the appeal process. He said "I just stand here trying to get my job back. I really would like to be employed. I have been out of work for a long time... but that is really why I am here today, to getting returned to work."

[4] It would appear that appeal ground 4 is the appeal ground Mr Griffiths relies on in respect to his claim that the Commissioner erred in determining that he had been made redundant. During the course of the appeal hearing Mr Griffiths accepted the Commissioner's finding that the "corporation has opted for a model whereby key engineering resources were outsourced" and that he was in fact made redundant as the employer had outsourced the work that he had performed. That work was no longer performed by an employee of the corporation; accordingly reinstatement was not an option available to the Commissioner below. Mr Griffiths had sought redundancy pay and that is the relief the Commissioner addressed.

[5] Mr Griffiths is challenging the amount of compensation awarded by the Commissioner submitting that the Commissioner erred in his calculation of the amount of redundancy payment. Appeal grounds 1, 2, and maybe 3, are the grounds of appeal in relation to the quantum of the compensation order made by the Commissioner.

[6] In respect to the appeal against the quantum of compensation ordered Mr Griffiths agreed that the claim he now makes was not before the Commissioner. The claim he now makes refers to his annual package of wages and conditions and includes some additional employment conditions being payment for a telephone line rental; a dollar amount he has estimated would represent the value of an annual clothing issue and interest on the amount awarded by the Commissioner due to the delays caused by the respondent taking the Commission to the Supreme Court on jurisdictional grounds.

[7] For his appeal to be successful the appellant must be able to demonstrate where the Commissioner erred.

[8] Mr Griffiths proposed the following in his appeal document:

"The decision by Commissioner Abey to award me sum $25688 is paltry, manifestly unfair and unjust. No consideration has been given to the fact that I have not been able to find employment in the field of engineering due to my unjust dismissal. I have applied for numerous employment positions, but unfortunately prospective employers are reluctant to engage me because of suspicion and doubt surrounding my dismissal by the Port of Devonport. As a result I have suffered severe financial loss, loss of professional status, severe mental stress, loss of confidence, loss of esteem and self worth, anguish and depression. This has manifested itself that I now have severe depression and my loss of confidence has made me unable to sustain personal relationships with people. My dismissal has crippled me both mentally and financially.

I consider the paltry sum offered by Commissioner Abey not as compensation but as punishment. Common criminals have been treated more justly. I know of an instance where the Education Department suspended a women on full pay, pending a court hearing and conviction for theft. The woman was subsequently convicted of theft and the Education Department reinstated HER to her FORMER JOB. In my case I was exemplary employee, did no wrong, I was not subject to any disciplinary action, given no warnings and never received council regarding my inter‑personal behaviour with Mr Witt or any other colleague. And now I am been punished like a common criminal. In fact I was praised by the directors at one board meeting and I quote." More maintenance and capital work had been done around the Port in the last 5 years than the last twenty years due to my work output."

[9] The reference by Mr Griffiths to the Education Department matter was not expanded upon and as far as we are aware was not a matter before the Commissioner. Accordingly we are unable to make any comment or rely on that part of his submission. The Commissioner has determined that Mr Griffiths was made redundant and awarded him a payment of 2 weeks pay for each year of service as well as an additional 5 weeks pay for lack of proper notice.

[10] The amount awarded is in accord with the recent amendments to the Act which provide at s47AH:

"(i) Unless prescribed otherwise in an Act, award or agreement or determined otherwise by the Commission, an employee with more than one year's employment with an employer must be given not less than 4 weeks' notice of the employer's intention to terminate the employee's employment on account of redundancy or 4 weeks' pay in lieu of such notice.

(ii) Unless prescribed otherwise in an Act, award or agreement or determined otherwise by the Commission, if an employee's employment is terminated on account of redundancy, the employee is entitled to a redundancy severance paymentcalculated on the basis of 2 weeks' wages for each completed year of employment with the employer, up to a maximum of 12 weeks."

[11] The basis of Mr Griffiths claim that the amount awarded was grossly inadequate cannot be sustained as he was not dismissed but made redundant and was paid redundancy pay as he requested. The additional amounts proposed by Mr Griffiths for inclusion for calculation of his payment were not before the Commissioner and as such he was unable to take them into account.

[12] Accordingly the Commissioner has made no error.

[13] We note that the additional amounts are not those normally included as salary for the purposes of compensation payments. Likewise the list of 'losses' for which Mr Griffiths seeks recognition in any compensation payment are not matters usually considered in s.29 applications.

[14] The respondent noted that in Hughes v Tasman Group Services [T10339 of 2002] the Full Bench discussed the basis of any calculation for redundancy payments as being:

".....intended to compensate the employee firstly for non transferable credits and secondly for the inconvenience and hardship imposed upon employees as a result of the loss of employment through no fault of their own."[3]

[15] It was also noted by the respondent that the figures relied upon by the Commissioner for the calculation of the redundancy payment and notice period is incorrect. The respondent however makes no submission in respect to that error.

[16] It was further submitted in the appeal document:

"My matter is not unlike Carr verses Tasmanian Alkaloids. In this matter Mr Abey as with my matter found that Mr Carr had a reasonable expectation of continuation of employment. Mr Carr was awarded fairer compensation. He was allowed to resume work or alternatively Tasmanian Alkaloids compensate him with a negotiated settlement."

[17] The reference to the decision in Jason Mark Carr v Tasmanian Alkaloids Pty Ltd[4] (Carr) provides little assistance. The circumstances in that matter are different to the situation faced by Mr Griffiths. In Carr there was no determination made by the Commissioner and a recommendation was made for the employer to re-employ Mr Carr or negotiate compensation. Further the Commissioner in that matter rejected the reasons given for the termination. It was submitted by the employer that Mr Carr had abandoned his employment and that there was a lack of work, the Commissioner found that the claim that there was no work was "plainly not the case" and that Mr Carr did not abandon his employment as alleged. In Carr work was still available that Mr Carr could perform and he had not been made redundant. Accordingly it was found that there was no valid reason for the termination. A further and relevant issue in Carr was the vagaries of seasonal work requirements.

[18] The submission by Mr Griffiths does not point to any error on the part of the Commissioner.

[19] It was the finding of the Commissioner below that reinstatement was impracticable as the position held by Mr Griffiths no longer existed and the "corporation has opted for a model whereby key engineering resources were outsourced."[5] Further the Commissioner found that the management model which the employer introduced "was open to the corporation to adopt, and is not something the Commission would interfere with."[6]

[20] The Commissioner noted in his decision at paragraphs 2 to 8:

"[2] This matter has a long and chequered history. The application was first listed for a conciliation conference on 17 February 2004. The matter was not resolved and subsequent negotiations between the parties failed to find a settlement.

[3] The application proceeded to formal hearing on 9 June 2004. The applicant proceeded by way of an unsworn statement from the bar table, with certain documentation tendered into evidence. At the conclusion of the applicant's submission, the respondent submitted that the Commission lacked jurisdiction to hear the matter. The basis of this contention was that Mr Griffiths was party to a fixed term contract that had expired and there was no termination at the initiative of the employer.

[4] On 30 June 2004 the Commission issued a decision rejecting the jurisdictional objection and finding that applicant "has made out a case, albeit with limited evidence, which needs to be answered." The components of the application concerning alleged award breach and long service leave were also dealt with in this decision.

[5] The respondent subsequently filed in the Supreme Court a notice to review the decision pursuant to the provisions of the Judicial Review Act 2000. This application was heard on 18 October and 12 November 2004. On 19 January 2005 Underwood CJ issued a judgement dismissing the application and confirming the jurisdiction of the Commission.

[6] The respondent lodged an appeal against this judgement to the Full Court.

[7] In a judgement dated 5 October 2005 the Full Court dismissed the appeal.

[8] As a consequence the matter was re-listed before the Commission on 29 November 2005."

[21] Many of the issues of concern raised by Mr Griffiths have been overtaken by events, this was due to no fault on his part, but the application, has taken some years to reach a conclusion. That is regrettable but is beyond the control of the Commission however both parties have exercised their rights as they are entitled to do.

[22] We reject the appeal grounds 1, 2 and 3 to the extent on which they were relied.

[23] We agree with the findings of the Commissioner and confirm his decision.

 

P.L. Leary
PRESIDENT

Appearances:
Mr A. Griffiths for himself.
Mr S. McElwaine for the Port of Devonport Corporation [now the Tasmanian Ports Corporation].

Date and Place of Hearing:
2006
July 18
Hobart


[1] Original decision para 46
[2] Supra 53
[3] T10339 of 2002 para 83
[4] T9859 of 2002
[5] Original decision para 34
[6] Supra 51