T4790
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Pasminco Metals - EZ
Appeal against an order handed down by Commissioner R. K. Gozzi on 24 December 1993 in matters T4639 of 1993, and T Nos 4750, 4751, 4752, 4753, 4754, 4755, 4756, 4757, 4758, 4759, 4760, 4761, 4762 and 4763 of 1993 REASONS FOR DECISION This was an appeal brought by Pasminco Metals E.Z. (the Company), under Section 70(1)(c) of the Act, against an order pursuant to Section 31(1) of the Act made by Commissioner R K Gozzi on 24 December 1993. The Commissioner ordered the re-employment of eight employees of the Company whose employment was terminated on 18 October 1993. The order arose out of dispute hearings and negotiations in matters T4639 lodged on 18 October 1993 and T Nos 4750, 4751, 4752, 4753, 4754, 4755, 4756, 4757, 4758, 4759, 4760, 4761, 4762 and 4763 of 1993, lodged on 14 December 1993 under section 29 of the Act by the AWU-FIME Amalgamated Union, Tasmania Branch (the Union), following the termination of the employment of sixteen employees of the Company on 18 October 1993. During the course of the dispute hearings eight of those sixteen employees whose employment had been terminated eventually came to redundancy settlements with the Company leaving eight former employees who were ordered to be re-employed by the Commissioner. Company Submissions Leave was granted for the Company to be represented by an agent. The Company's grounds of appeal were as follows:
The Company based its appeal submissions on four broad issues and, during the course of its submissions, at appropriate junctures to the satisfaction of the Commission, related them directly to the formal grounds listed in the appeal. The broad issues were:
The key factor in the Commissioner's reasons for ordering the re-employment of the eight employees of the Company had been the claim by the Union that the Company had breached an agreement whereby it had promised when employment terminations took place, to give preference to permanent employees as opposed to temporaries (the preference agreement). All parties were agreed that the preference agreement was that labelled as exhibit G5 in the original hearing which applied specifically to the employment of temporaries in the Company's casting division. At the same time as the dismissals were effected the Company had renewed the contracts of a number of temporary employees and the Commissioner found that the Company, by so doing, had breached the preference agreement. On the latter point we agree with the Commissioner. However, early in the dispute hearing proceedings the Commissioner had indicated to the parties that, in his view, the breach or otherwise of the preference agreement was a threshold matter and that he believed a ruling on that point would influence the way in which he would decide in each individual application before him. The transcript showed the Commissioner had stated that he would deal with each individual application after he had settled the threshold point. Despite this expression of intent, the Commissioner, on reaching a conclusion as to the threshold point, did not examine each individual application before him but recommended, and then, when the Company rejected his recommendation, ordered the re-employment of the eight individual dispute hearing applicants on the grounds that they had been harshly and unjustly dismissed. The Company submitted that, by failing to examine each individual application separately, the Commissioner had denied the Company the opportunity to address the Commission on the outstanding applications; put another way, that he had been procedurally unfair. The Company also claimed that the Commissioner had erred in that there was no logical connection between the breach of the preference agreement and the Commissioner's general finding that the breach was harsh and unjust in relation to each dismissal, that is, there was no causal link. The Company claimed, without prejudice to its denial of the preference agreement breach, that the Commissioner should have proceeded to hear the merits or otherwise of each individual application once he had decided on the threshold point. In its submissions in the hearings before the Commissioner, the Company sought to demonstrate that, even if the threshold point had been decided against it, none of the sixteen original applicants on assessment for dismissal would have been retained and the Commissioner had erred in not giving the Company the opportunity to put its case in that regard. The Company quoted from a number of decisions emanating from law courts and other industrial tribunals in support of its major arguments and produced extracts as exhibits. The Company stressed its view that the Commissioner's description of the threshold matter changed from time to time during the course of the original hearing and it said that these changes represented a flaw in the way the Commissioner had proceeded. On that point we consider there may have been some inconsistencies in the Commissioner's references to the threshold matter, but we are satisfied that the real point was whether or not the preference agreement had been breached by the Company and we are satisfied also that it was so regarded by the parties despite their different view on the implications arising out of the finding on the breach. As to the onus of proof, the Company pointed out that the Commissioner, in the initial stages of the hearing, had advised the Union that he would be requiring it to demonstrate the harsh, unjust and unreasonable nature of the dismissals and that he had gone so far as to refer them to Western Suburbs District Ambulance Committee v Tipping [(1957) AR (NSW) 273] (the Tipping case) as an example of what principles were to be applied. The Company submitted that by relying solely on the breach of the preference agreement as evidence of harsh, unjust and unreasonable dismissals the Commissioner had erred in that there was no connection between the breach and the dismissals and, moreover, the Commissioner failed to apply his finding to each individual case to assess whether or not the breach had been harsh, unjust and unreasonable. As to the remedy determined by the Commissioner, that is, re-employment with the retention of termination monies, the Company referred to the general rules set out in various decisions of tribunals and added that when re-employment was contemplated the Commissioner should have been concerned only to return the parties to the position they were in prior to the dismissals as if nothing had occurred. The Company went on to point out that the Commissioner had relied on assertions, not evidence or facts, that some of the dismissed employees would suffer financial loss were they to be reinstated with the obligation to pay back redundancy monies. Hence, the Company submitted, the Commissioner had erred in the exercise of his discretion because it had not been based upon any facts or evidence. Further, the Company submitted that by not returning the parties at least to the status quo, those ordered to be re-employed were in a better position than they had been before dismissal. In addition, it was pointed out that this was unfair, ironically, to those who had not been dismissed at all. In any case, where an order for re-employment was made, the Company said all termination payments should be required to be returned to the employer under the principle that the parties should be put back in the situation they would have been in otherwise. The Company also said that the Commissioner had erred in the exercise of his discretion in that he failed to consider its submissions that re-employment would be impracticable, undesirable and unfair. As to the grounds of public interest, the Company claimed that it had been a serious error for the Commissioner to have returned employees to their employment and to have allowed them to retain the benefits emanating from their dismissals. It disadvantaged those who had remained in employment all the time and in that sense was inequitable. Furthermore, the Company said all other employees dismissed by the Company would be able to rely on the Commissioner's reasoning for a similar claim for re-employment. Therefore the Company claimed it would be unfair for others not to be given the same opportunity to return to the Company's employment, a situation which manifestly was not in the public interest. The Company further contended that the order was against the public interest because of the Commissioner's failure to consider the material the Company sought to bring forward relating to each individual. It established a dangerous precedent which was against the public interest, the Company said, since many other claims could be made seeking to have employees retain their redundancy payments on re-employment. As to remedy the Company submitted that the order should be quashed. If that submission failed the Company proposed that we should hear the evidence that the Company would have submitted in respect of the individual's applications "had it been afforded the opportunity to do so on the individual merits." (transcript p.96) Union Submissions The Union's submissions were based on the view that the Commissioner having decided the threshold issue, namely that the Company had breached the preference agreement by terminating the employment of permanent employees whilst retaining temporary employees, was right in consequently deciding that the Company's dismissal action was harsh and unjust and therefore the order for re-employment was quite proper and within his discretion. The Company, in response, submitted that the Union did not show, at any time, how the breach of the preference agreement harshly and unjustly affected each of the eight employees re-employed, nor did it show that there was any connection between the breach of the preference agreement and the termination of each of the applicants. The Union quoted from a number of case precedents dealing with well established principles which, it claimed, supported its position in this matter (meaning the Commissioner's decision that the breach of the preference agreement was the reason for the harsh and unfair dismissals). The Company, in its response, indicated that it agreed with the principles enunciated in nearly all the precedents quoted and had indeed relied on some of them in its own submissions, but the Union had either misconstrued the principles in relation to this matter or had failed to relate the principles correctly to the facts. The Union also sought to persuade the Commission that the Company had been given every opportunity by the Commissioner to put all its case and the Company had failed to show us otherwise. The Union claimed that the settlement of the first eight of the sixteen individual applications before the Commissioner was based on an acceptance of the threshold point and that the threshold point should have been accepted in respect of the remaining eight applicants. The Company was seeking to change the rules, the Union claimed, by persisting with its opposition to the re-employment order. On this point, we consider the fact that eight applications were settled originally had no bearing on the Company's rights to pursue its case in respect of the other eight. It is acknowledged that such settlements are commonly entered into on a without prejudice basis and are not available as precedents. The Union claimed also that the Company had changed its position by indicating it would accept the Commissioner's decision on the threshold point, but that it had refused to do so when it discovered the finding went against it. The Union went further and claimed that the whole procedure followed by the Commissioner (that is, both the finding as to the threshold point and the resultant decision to re-employ) had been accepted by the parties before he embarked upon it. In addition it was submitted by the Union that the Company's breach of the preference agreement was against the public interest, and as a matter of principle, all workplace agreements ought to be upheld. DECISION The Company's main argument was two pronged in that:
Amongst all the arguments and counter-arguments put to us about previously settled cases and principles the Company made the following submission:
As to the Union's submission on this matter, we are unable to find any indication in the record of proceedings from the original hearing, that an agreement existed between the parties that a finding that there had been a breach of the preference agreement would automatically lead to a conclusion that the dismissals were harsh, unjust and unreasonable. We accept the Company's argument and we are satisfied that the Company made reasonable attempts to put submissions as to the effect of the Commissioner's finding on the threshold point in respect of each individual application, but, the Commissioner denied the Company the opportunity to make its submissions in that regard. In the circumstances we find that the Commissioner erred in not affording procedural fairness to the Company when he did not allow it to address him on the individual applications which were before him and in not applying his threshold finding as to breach to each individual applicant. Therefore, we uphold the appeal on Ground 6. Whilst we recognise that each case will be determined on its own merits nevertheless we are of the view that, when ordering reinstatement or re-employment, a remedy sufficient only to put the parties in the position they would have been in had the dismissals not taken place is the most appropriate, and the employee concerned should not be better off than he or she otherwise would have been. Further, the transcript reveals that the Commissioner was aware of the general industrial principles relating to circumstances involving reinstatement or re-employment where termination monies has been paid, but, seems to have been persuaded to order re-employment because it was submitted to him that such an order would result in the least financial difficulties for the employees concerned. We accept the Company's submission that the Commissioner's order for re-employment with the retention of termination monies was based on submissions rather than evidence, but we also say that the re-employed employees were advantaged in that they were permitted to keep all the termination payments they had received on dismissal. We are satisfied, therefore, that the Commissioner erred in ordering the re-employment of the applicants which allowed them to retain their termination payments when without good reason he did not return the dismissed employees to the same position they had been in prior to dismissal. We uphold Ground 4. Having upheld the appeal on Grounds 4 and 6 we revoke the order made by the Commissioner, dated 24 December 1993, which is the subject of this hearing and do not consider it necessary to address the other grounds of appeal. After considering the transcript of the original hearing and the submissions presented during the course of this appeal, and in order to settle the original industrial dispute, we are of the view that it is appropriate to make the following findings:
Given the foregoing and in accordance with Section 71(13)(b) of the Act we hereby order:
It should be noted that a re-assessed person who has not obtained a position after the reassessment process has been completed, who is still aggrieved, may make application to the Commission in order to have the grievance tested.
Appearances: Date and Place of Hearing: |