TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against an order

Minister for Public Sector Management
(T6041 of 1996)

Appeal against order to reinstate a dismissed employee handed down by Deputy President Robinson on 21.12.95 in Matter T5994 of 1995 - appeal dismissed - order confirmed

REASONS FOR DECISION

This appeal application was lodged by the Minister for Public Sector Management pursuant to Section 70(1) of the Industrial Relations Act 1984, against an order issued on 21 December 1995 by Deputy President Robinson in Matter T5994 of 1995, a dispute in relation to the termination of employment of Mr Matthew Green who was employed at the Glen Huon Primary School.

In his decision the Deputy President ordered:

"that Mr Matthew Green be reinstated to the same position which he occupied prior to his termination and on conditions no less favourable to him. In the alternative the Minister is at liberty, with the agreement of the union, to reinstate Mr Matthew Green to a similar position which is located in the same locality as before".1

The appeal application contained 12 grounds of appeal, 2 of which were varied on the day of the appeal proceedings. The grounds then advanced were as follows:

1. The Deputy President failed to recognise that there was a valid reason for termination of the former employee as provided in Article 4 of Part II of the ILO Convention 158.

2. The Deputy President erred in that he was not obliged to have regard to Part I of ILO Convention 158.

3. The Deputy President erred in that he failed to recognise that the contract of employment provided the right to terminate the employment of the former employee.

4. The Deputy President failed to give due weight to the fact that, at all material times during the former employee's period of employment, the employee was fully aware of the terms of his employment contract.

5. The Deputy President failed to recognise the right of the employer, following a vacancy, to advertise and to select an employee of his/her own choosing.

6. There was insufficient evidence before the Deputy President which would support the view that the termination of employment was harsh, unjust or unreasonable.

7. The Deputy President erred in that he failed to place sufficient weight on the evidence provided by the Principal of the school.

8. The Deputy President should not have found on the evidence and in all the circumstances that this would be an appropriate case for the Commission to order the appellant to reinstate the employee in the former position.

9. The Deputy President failed to recognise that the termination of the former employee resulted from his unsuccessful application in a merit selection process - a process which is an established operational requirement of the service.

10. The Deputy President failed to place any weight on the evidence that the Supervisor did not give the former employee any indication that his employment was secure and/or that he would be successful in obtaining the vacant position.

11. The primary remedy of reinstatement ordered by the Deputy President was inappropriate as no vacancy exists to allow the former employee to take up an appointment.

12. The alternative remedy of reinstatement ordered by the Deputy President was inappropriate as no suitable vacancy in a similar position located in the same locality exists to allow the former employee to take up an appointment.

We consider it is important before dealing with the specific grounds of appeal to clearly establish the type of contract of employment under which the dismissed employee, Mr Green, was working. These facts are gleaned from the transcript of the section 29 hearing and from the appeal proceedings.

Mr Green was appointed as a cleaner/groundskeeper at the Glen Huon Primary School from 22 October 1994 to 12 December 1994. He was notified of this appointment by the Director (Human and Personnel Services) of the Department of Education and the Arts in correspondence dated 16 November 1994.

Mr Green, who was employed in accordance with the provisions of the Miscellaneous Workers (Public Sector) Award, was aware at the time of his employment that he was replacing another employee who was on sick leave (which he later found to be an absence on Workers' Compensation) and he was of the view that his employment would continue until that employee returned to work.

This initial contract of employment was not extended or terminated during its life and it expired on 12 December 1994.

Just prior to the expiry date Mr Green enquired of the Principal and the Bursar of the school as to what would happen at the end of the contract period. He was advised to keep working until he heard from head office.

We are of the view that after the expiry date of the initial contract of employment Mr Green entered a new contract and his acceptance of this was communicated to the employer's representative by the fact that he offered himself for employment and undertook the duties of cleaner/groundskeeper at the school for approximately 12 months after the expiry date of the initial contract of employment.

This second contract of employment was one based on "offer and acceptance" as Mr Green's attendance at work was with the knowledge and approval of the employer's representative and he was paid on a regular basis for his services.

Mr Green believed himself to be a temporary employee with nothing more than an understanding, unsupported by documentation, that he would occupy his position until the other employee returned to work from his Workers' Compensation absence. In September 1995 the latter employee's Workers' Compensation claim was settled and he resigned from his employment.

The circumstances changed at this point and we note that the employer made no attempt to renegotiate the contract of employment.

This left Mr Green in a position whereby the understanding he had, that is that his employment would come to an end on the return of the other employee, no longer existed and in the absence of any other verbal or written understanding a reasonable person would expect the contract to continue as, from all accounts, Mr Green was carrying out his duties to the standard required by the employer.

In October 1995 the position of cleaner/groundskeeper was advertised and Mr Green applied for the position which he occupied.

After the interviews were carried out Mr Green was informed that he was not the successful candidate and he was dismissed from his position with effect from 29 November 1995.

Before we turn to deal with the specific grounds of appeal we consider that it should be stressed that a contract of employment for a specific period of time (which seems to have been in the employer's mind in this case and in fact was in relation to the initial contract) is one where the commencement time and the time for completion are clearly and unambiguously identified in the terms of the contract.

We deal now with the grounds of appeal:

1. The Deputy President concluded that there was no valid reason for the termination of the employment and we agree with him. Clearly the contract of employment was terminated by the employer without any suggestion of fault on the part of the employee. The reason relied upon by the Minister was that someone else had been appointed to the position. We consider this reason was not valid because Mr Green already occupied the position and the Minister had failed unfairly, in our opinion, in the changed circumstances, to renegotiate the contract of employment. We consider that this ground has not been made out.

2. We do not consider that the Deputy President erred by referring to Part I of the International Labour Organisation Convention. Section 31(1A) of the Act requires a Commissioner, when dealing with disputes relating to the termination of employment to "take into account the standards of general application contained in Part II" of the Convention. A Commissioner is not obliged to have regard to Part I, however, the legislation does not proscribe reference to Part I.

3. Ground 3 of the appeal was not directly addressed by the applicant and accordingly that ground is dismissed.

4 Ground 4 of the appeal is dismissed. Having studied the transcript and considered the submissions on this matter we are of the opinion that the awareness of the employee and for that matter of the employer as to the terms of the employment contract bears little resemblance to the facts of the matter. We consider the Deputy President was right to address the facts rather than the thoughts or assumptions the participants might have had about the nature of the employment contract.

5. As mentioned in the preamble to this decision, we are satisfied that the employee, at the time of his dismissal, validly occupied the position of cleaner/groundskeeper at the Glen Huon Primary School and the position should not have been advertised until it was vacant. We agree with the Deputy President that in the circumstances the position should not have been regarded as vacant and, accordingly, Appeal Ground 5 fails.

6. This ground of appeal was not addressed, and having regard to our findings on the other grounds this ground of appeal is dismissed.

7. This ground was not addressed directly and we can only observe that the Commission member hearing the evidence is best placed to determine what weight should be attached to it.

8. Again this ground of appeal was not addressed directly and we observe that it appears to be a generalisation of all the specific grounds of appeal which we have dealt with and will deal with separately.

9. We consider this ground fails as the merit selection process should only be applied once the position becomes vacant. The point is not that the Deputy President failed to recognise the reason for termination, but, as we noted in our decision on the first ground of appeal, the employee had been unfairly treated prior to the selection process and hence it had proceeded on an improper basis - the employee's status should have been settled first.

We note that this ground of appeal refers to the merit selection process as an "operational requirement" of the service. In our view "operational requirements", as the words are used in Article 4 of the Convention, do not encompass matters such as the merit selection process for the staffing of an organisation - and we should note that the Commission is proscribed from dealing with such matters. In our view the expression "operational requirements of the ... service" refers to the more basic requirements of an organisation, such as its economic circumstances, whether demand for its product or service is up or down, and its staffing needs depending on the foregoing or, for example, technological change.

10. We agree with the conclusion reached by the Deputy President in relation to the contract of employment and accordingly consider he was not required to give any specific weight to the evidence of the supervisor regarding the security of the employee's position. Therefore this ground of appeal is not substantiated.

11. and 12.

No submissions were made by the employer during the section 29 hearing as to what remedy should follow in the event that the Deputy President found the employee had been unfairly treated. Having so found we consider the Deputy President was entitled to make an order in the manner set out in his decision. Accordingly these grounds are not substantiated.

Given these reasons, the employer's appeal against the order of Deputy President Robinson dated 21 December 1995 in Matter T No. 5994 of 1995 is dismissed, and the order is confirmed.

Appearances:
Mr G Payne with Mr P Gourlay for the Minister for Public Sector Management
Mr K O'Brien for Australian Liquor, Hospitality and Miscellaneous Workers Union, Tasmanian Branch

Date and place of hearing:
1996
Hobart:
January 29

1 T5994 of 1995