T9069
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Chamber of Commerce and Industry Limited and Health Services Union of Australia, Tasmania No. 1 Branch
Appeal - against decision by Commissioner P C Shelley on 5 June 2000 in matter T8934 of 2000 - new evidence pursuant to s.71(8) - public interest - unique and exceptional circumstances - order revoked - all grounds of appeal dismissed - T8934 of 2000 referred back to Commissioner P C Shelley to hear new evidence REASONS FOR DECISION [1] This is an appeal pursuant to s.70(1) of the Industrial Relations Act, 1984, as amended, (the Act) against a decision of Commissioner Shelley in matter T8934 of 2000 issued on 5 June, 2000 re redundancy entitlements and payment in lieu of notice for former employees of Our Place Inc. [2] The appeal is lodged by the Tasmanian Chamber of Commerce and Industry (TCCI) on behalf of its member Our Place Inc., the respondent in the matter below. The Health Services Union of Australia, Tasmania No 1 Branch (HSUA) was the applicant in that matter. [3] The appellant, Our Place Inc., provided ten (10) grounds on which it based its appeal. However, on the day of hearing, it sought leave of the Commission to proceed on one (1) ground only, that being ground five (5) which claimed that the Commissioner had "determined an amount of severance pay that was manifestly excessive in all the circumstances". [4] Leave was granted and the appellant submitted that circumstances had changed since the determination of the Commissioner. It was claimed that since the handing down of the decision three service providers had employed all of the former employees of Our Place Inc. and have recognised the continuity of their service with Our Place Inc. for the purposes of long service leave and in the event of redundancy. It now seeks to have set aside both the decision and order of Commissioner Shelley. [5] The HSUA conceded that the circumstances had changed but were not such as to warrant the setting aside of the decision and order of Commissioner Shelley. HSUA also opposed reference of the matter back to Commissioner Shelley to hear any new evidence which it was claimed by Our Place Inc. which was not available to Commissioner Shelley at the time of hearing the matter and making her decision. [6] There is disagreement between the parties as to the actual events which transpired at the time of the employment being terminated by Our Place Inc. and it is the detail of those events which needs to be considered. [7] The onus rests with Our Place Inc. to demonstrate that the circumstances were in fact different to those put to Commissioner Shelley and on which she based her decision. It would appear also that HSUA is not absolutely certain as to the terms of employment offered and/or accepted by former Our Place Inc. employees. Likewise it appears that the employees may also be unsure of their employment status and entitlements. [8] Our Place Inc. does not dispute the merits of the decision of Commissioner Shelley only that the circumstances presented at the time and on which the decision was made are significantly different to what in reality occurred. [9] Having heard the submissions of the parties we are of the view that there are changed circumstances and new evidence now available since the Commissioner made her decision. What those changed circumstances are, and the effect of those changes on the employment relationship and conditions of the former Our Place Inc. employees is not agreed between the parties and we consider they should be reviewed. [10] Further we are of the view that the issues raised by Our Place Inc. in this matter in effect constitute new evidence not raised in the earlier proceedings. Accordingly we allow the new evidence pursuant to s.71(8) of the Act in the public interest and in the unique and exceptional circumstances of this matter it will be referred back to Commissioner Shelley to hear the parties in respect of that new evidence. [11] We note that the appellant does not dispute the merit of, or the principles espoused in the Commissioner's decision and now seeks only to revoke the order implementing her findings. [12] To allow the matter to be referred back to Commissioner Shelley, as we have decided, we hereby revoke the order in matter T8934 of 2000 issued 5 June, 2000 pursuant to s.71(13)(a) of the Act. [13] The matter will be referred back to Commissioner Shelley pursuant to s.71(13)(c) to hear the new evidence and reassess the eligibility of those employees named in the order in matter T8934 of 2000, applying any principles and/or formulae determined by her in her decision in that matter. [14] The appellant only pursued its application relying on ground five (5) of its grounds of appeal. We are unable to make any finding on that ground on the basis of the evidence before us. Accordingly we dismiss all of the grounds of appeal numbers one (1) to ten (10). The appellant did not wish to pursue grounds one (1) to four (4) or six (6) to ten (10). [15] Pursuant to s.71(13)(c) Commissioner Shelley is directed to hear any new evidence and reassess the eligibility of those former employees of Our Place Inc. named in the order arising out of matter T8934 of 2000 in light of that new evidence applying any principles and/or formulae determined by her in her decision in that matter. The reassessment will have regard to the submissions of the parties and any new evidence not available to her at the time of the original hearing.
P L Leary Appearances: Date and place of hearing: |