T8371
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Roadways Pty Ltd ACN 009 485 812 and Terrence James Price
Appeal - decision by Deputy President Johnson on 23 March 1999 in matter T7212 of 1997 - re termination of employment of Terrence James Price - appeal dismissed - order confirmed REASONS FOR DECISION On 29 August 1997, Mr Terrence James Price made application to the President for a hearing in respect of an industrial dispute, pursuant to section 29(1A) of the Industrial Relations Act 1984, in relation to the alleged termination of his employment by Roadways Pty Ltd. That application, T7212 of 1997, was referred to Deputy President Johnson who determined that the termination was at the initiative of the employer and that even though the employer had a valid reason for dismissing Mr Price, the employer had denied the employee the opportunity to defend himself before taking the final decision to terminate his employment. The Deputy President then found that reinstatement of Mr Price to his former position was impractical; that the likelihood of Mr Price's continuing employment was very small and that compensation should be minimal rather than substantial. In settlement of the dispute he awarded the former employee compensation of $2,500. Subsequently, pursuant to section 70(1) of the Act, the employer lodged the application now before us. It cites the following grounds of appeal:
Mr Price did not appear in the matter and was not represented. Ms Lyon of Dobson, Mitchell and Allport, sought and was granted leave to appear as agent for the appellant. The first three grounds of appeal are related to the finding by the Deputy President that the termination was at the initiative of the employer and we deal with those grounds together. The evidence in the proceedings at first instance reveals that on 27 November 1996 the employee informed the company that he had been charged the day before with a drink driving offence. He admitted to being confused and distressed at the time and testified he was unable to remember exactly what was said. Mr Price had a conversation with Mr Green, the company's general manager, informing him that he had been caught on the breathalyser and said, according to Mr Green, "I've got to give notice...."4 It was also Mr Green's evidence that he suggested that Mr Price wait until he actually lost his licence before he finished. The appellant relies on the cross examination of Mr Price5 in its contention that Mr Price resigned his employment by giving notice to the company. But nowhere does Mr Price say "I'm giving notice", as quoted in the grounds of appeal. Those words were contained in a question during his cross examination on the events of 27 November 1996, where it was contended that Mr Price was told by Mr Green that he would have to leave his employment when he lost his licence. Mr Price did not agree with the date on which it was alleged this conversation took place and the questions and his responses are, to say the least, ambiguous. We are of the view that the responses to the questions posed are not clear. The transcript suggests that Mr Price was confused by the reference to dates and alleged events on those dates. Mr Price had testified previously that he did not give notice but only indicated that he may have to resign in the event that he lost his driver's licence. In any case if he did give notice it was for some unknown date in the future as, at the time, he would have been unaware of the date and the result of court proceedings related to his possible loss of licence. It is also clear that if he did give notice it was not accepted by the company as he continued to work for a further six months. The Deputy President did not accept Mr Green's contention that he had simply extended Mr Price's period of notice because Mr Green did not tell Mr Price that was what he was doing, he just said, `why don't you wait'. The Deputy President noted that the evidence of Mr Manson, the company's administration manager, was that Mr Green `suggested he could stay on'. The Deputy President also relied on the Employment Separation Certificate that Mr Manson said he completed and signed, which stated that Mr Price did not cease work voluntarily.6 In addition, Mr Green's evidence suggests to us that Mr Price was not certain that he would lose his job. He said that when Mr Price reported to him that he had lost his licence and had been fined, he said "I suppose I'm finished", and Mr Green replied "... well, I'm afraid, yes, that's it". That was confirmed we think when during cross examination Mr Price agreed that Mr Green said something like "... you know that's it. You'll have to finish now". Despite the appellant's submissions to the contrary we are of the opinion that, on the evidence available to him, the conclusion reached by the Deputy President that the termination was at the initiative of the employer was one reasonably open to him. We note that he also had the benefit of hearing the evidence of the witnesses at first instance. In respect of the fourth ground on which the company appeals the Deputy President determined that the circumstances in this matter were unlike those in Gunnedah Shire Council v Grout. He said "On a balance of probabilities, I believe Mr Price most likely talked to Mr Green about giving notice, but whether he actually intended to give notice I cannot say. In that sense, I think the circumstances of this case are not like those of Gunnedah Shire Council v Grout, in which the Court found that `although he was stressed, Mr Grout knew what he was doing and wanted to resign'."7 Having determined that it was open to the Deputy President to find that the termination of Mr Price's employment was at the initiative of the employer and, that Mr Price did not give notice of his resignation, we reject the submission of the appellant that the Deputy President failed to apply properly, or at all, the principles in Gunnedah, and we adopt the conclusion reached by the Deputy President. The remaining grounds of appeal deal with whether compensation should have been awarded by the Deputy President and, if it should have been, whether the Deputy President had applied the correct principles. In this matter at first instance, for the purpose of determining compensation the employer relied on the approach taken in the cases referred to in Appeal Ground 7, and on Article 12 of the ILO Convention 158. The Deputy President, we note, observed at the time that Article 10 deals with compensation for unfair dismissal and that Article 12 deals with severance payments in redundancy type situations. The appellant took us to the cases mentioned but submitted that Article 10 of the Convention, rather than Article 12, was the appropriate Article to be observed in this matter. We agree. It was acknowledged also that during the original proceedings the employer had submitted that compensation of anything more than one month's salary would not be justified and that one month's salary would be "exceedingly adequate". We were reminded that it had been put to the Deputy President that he should take into account the fact that the employee had already received one week's pay in lieu of notice. Relying on Nicolson and Heaven and Earth Gallery8, the appellant submitted that it was unlikely that the employee would have remained in the employment of Roadways if the breach of procedural fairness had not occurred and that even if he had been afforded procedural fairness there was no chance that he would have been able to affect the employer's decision. It was argued that the alcohol problems Mr Price was experiencing, the loss of his driver's licence, and the operational requirements of the company, especially the fact that the employer had sold the firewood supply part of the business, made it clear that Mr Price would not have continued in his employment and his job life was limited. It was submitted that the loss experienced by Mr Price was caused by the loss of his driver's licence and that he would not have been kept on even if he had been given the opportunity to say something to the employer because he could not have said anything that would have made a difference. It was submitted therefore that the employee suffered no loss because of procedural unfairness and consequently was not entitled to any compensation. Kenefick and Others v Australian Submarine Corporation Pty Ltd9 was relied on to support that submission and the case of Dickinson v Woolworths Safeway Pty Ltd determined in the Employee Relations Commission of Victoria was advanced in further support of the appellant's contention that where only "a slim chance" of continuing employment exists in a matter involving procedural unfairness only, compensation should not be awarded. But if compensation was deemed to be appropriate, it was contended that the amount should have been reduced further than the Deputy President determined. It was also submitted that the Deputy President had given no indication of the basis upon which he had decided the actual amount of compensation and he had not assessed the percentage possibility of continuing employment. The decision of Wilcox J. in Kenefick was relied upon as an appropriate example of the method of assessing compensation For all the reasons submitted the appellant asked the Full Bench to uphold the appeal and find that the circumstances of the case did not warrant an award of compensation. We have considered the proposition that the Commission should make the distinction between substantive unfairness and procedural unfairness as decided in Dickinson. In doing so, we note that Dickinson was not advanced by the employer in the matter at first instance as being an authority which the Deputy President should follow. However, given the observations contained in Nicolson which draw on comments from Bostik10, we are satisfied that a dismissal involving procedural unfairness is capable of being dealt with in accordance with the provisions of the Industrial Relations Act without the need to distinguish such a difference. In that context, we note that in Nicolson, Wilcox CJ agreed with the observations of Gray J, in Bostik, who did not accept the argument that if a breach was merely procedural the amount of damages to be awarded (in that case in respect of a breach of an award provision proscribing the "harsh, unjust or unreasonable" dismissal of an employee) might be affected. He observed that to ignore the rationale of procedural fairness devalued section 170DC of the federal Industrial Relations Act 1988 to "the point of redundancy". Section 170DC, in our opinion, reflects Article 7 of the ILO Convention. Accordingly we consider that the Deputy President was not required to make a distinction between substantive unfairness and procedural unfairness. In the circumstances we reject appeal ground 5. After reviewing the submissions and evidence, the Deputy President came to the conclusion that even though the chance that Mr Price would be able to convince his employer to retain his services, to use the Deputy President's words, was faint, very slight, and very small, there was some chance that he might do so. In our view Wilcox CJ in Nicolson makes the point very clearly that in dealing with cases involving procedural unfairness it should not be assumed that the employer would not have had a change of heart when confronted with "another side of the case" and further, that when assessing compensation it is appropriate to consider what would have been likely to occur if the breach, in this case of procedural fairness, had not occurred. We think it was not unreasonable for the Deputy President to take the view that there was a chance that the employer might have decided not to go ahead with the termination, despite the circumstances referred to by the appellant, because it was a matter of record that other employees who had lost their drivers' licences had not been dismissed. We feel it was entirely reasonable that he should then move to consider reinstatement or compensation. The Deputy President decided that reinstatement was impractical and that decision is not challenged. We note that the appellant in the matter at first instance had submitted that Nicolson was the appropriate authority to be called in aid for the purposes of assessing adequate compensation and that four weeks' pay would be exceedingly adequate. We consider the Deputy President properly exercised his discretion when considering compensation and that his decision conforms with the principles espoused in Nicolson. The transcript records that Kenefick was raised by the Deputy President as being authority for the proposition that a technical breach of the requirements of procedural fairness should bring about a substantial reduction in the compensation. The employer at that time did not comment on the Deputy President's observation. We agree with the Deputy President's reference to Kenefick. However we observe that in Kenefick, Wilcox J was confronted with circumstances which were significantly different from the circumstances in this matter. We do not think the Deputy President was required to attribute a percentage to the chances of Mr Price retaining employment when determining compensation. He concluded that "Mr Price's chances of encouraging the Company to continue his employment were slight". In our opinion that assessment was sufficient. We consider that his assessment of adequate compensation is within the parameters established by Wilcox CJ in that matter. Having regard to the circumstances of this case, we are satisfied that the decision of the Deputy President to order compensation in respect of an unfair dismissal caused by procedural unfairness was entirely open to him. We also consider that having decided, pursuant to section 31(1B), that reinstatement was impractical, it was open to him to determine that $2,500, being just less than 4 weeks' pay, was an appropriate amount of compensation. Transcript records that Mr Price was paid approximately $1,300 per fortnight, that is $2,600 every four weeks. The employer, at first instance, had also referred to the fact that Mr Price had received one week's pay in lieu of notice and submitted that amount should be set off against any compensation. The Deputy President noted those submissions in his decision and we are satisfied that he took them into consideration in arriving at compensation amounting to $2,500. For the above reasons we reject appeal grounds 6(a) and 6(b). As we have already indicated, we think the Deputy President correctly applied the principles set out in Nicolson, and in our view did nothing to offend or contradict the principles established in Capital Hill and Fosseys. Accordingly we reject appeal ground 7. Since all appeal grounds have been rejected this appeal application is dismissed and the Deputy President's order in Matter T7212 of 1997 is confirmed.
F D Westwood Appearances: Date and Place of Hearing: 1 T6915 of 1997 and T6918 of 1997 |