TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70(1) appeal against decision

Netcraft Pty Ltd
(T9968 of 2001)

and

Department of Infrastructure, Energy and Resources

Appeal against a decision handed down by Commissioner Imlach arising out of T9769 of 2001 - Appeal dismissed - decision confirmed

REASONS FOR DECISION

[1] In Matter T9769 of 2001 Commissioner Imlach determined that Patricia Gaye Cox should receive a pro rata payment of her long service entitlement following the termination of her employment by Netcraft Pty Ltd (the employer).

[2] The determination by the Commissioner followed an application lodged by the Secretary, Department of Infrastructure, Energy and Resources, Workplace Standards, Tasmania (the Department) pursuant to s.13 of the Long Service Leave Act 1976 (the LSL Act) claiming Ms Cox was entitled to a payment of pro rata leave.

[3] The employer filed an appeal against the decision of Commissioner Imlach claiming that the Commissioner had erred:

1. By failing to give sufficient weight to the respondent's submissions;

2. By not allowing the respondent's request that the applicant attend the hearing to be cross examined on her evidence;

3. By not giving sufficient weight to the respondent's further written submissions nor was there any mention of these submissions made in the decision;

4. In that he didn't act in accordance with s.20 -(Commission to act according to equity and good conscience) of the Industrial Relations Act, 1984.

[5] The appeal was listed for hearing in Hobart on 7 February 2002, at which time the Department raised a threshold issue for determination claiming that the appeal had been filed incorrectly and was therefore defective.

[6] The Department submitted that the appeal had been filed pursuant to s.70(1) of the Industrial Relations Act 1984 (the IR Act) when the application determined in the hearing below was an application filed pursuant to the LSL Act.

[7] Having heard the parties on that issue we dismissed the application.

[8] We now record the issues we were required to consider and our reasons for dismissing the application:

• The application before the Commissioner was an application pursuant to s.13 of the LSL Act.
  

• The determination by the Commissioner was made pursuant to the LSL Act.
  

• The appeal against the decision of the Commissioner was filed pursuant to s.70(1) of the IR Act when in fact it should have been filed pursuant to the LSL Act.
  

• The appellant sought to amend the application to create the necessary jurisdiction for the matter to proceed.
  

• The Full Bench dismissed the application being of the view that there was no application before us capable of amendment. The only action available to the employer was for a new application to be filed in accord with the LSL Act. However we noted that to do so would be outside the time limit prescribed in s.5(1)(a) of the Long Service Leave Regulations 2000 for the filing of an appeal.
  

• We are of the view that we have no discretion to extend the time limit prescribed for the filing of an appeal either under the LSL Act or the Regulations.
  

• The application was therefore dismissed.

[9] We note that it was agreed in the hearing below that the transcript of a s.29(1A) application lodged by Ms Cox alleging unfair termination, heard and determined by Commissioner Abey, would be relied upon by the parties to the s.13 LSL Act application. In that matter Commissioner Abey determined that:

"The behaviour of Ms Cox, as judged by contemporary workplace standards, was unacceptable. Had it occurred in a post 4 September environment, that is, after the general and specific warning given to all staff, I would have no hesitation in finding that the behaviour amounted to serious misconduct which would justify summary dismissal. The circumstances surrounding this case however demand a special consideration."

and

"The behaviour of Mrs Cox was both reprehensible and unacceptable. However, the same could probably be said for the majority of the staff at the time."

and

"I find that the employer did have a valid reason for termination. However, I find that there was a significant element of procedural unfairness in the fact that she was not given the same opportunity to modify her behaviour that was afforded to the other staff."

and further

"It is common ground that reinstatement is not a practical option given the effluxion of time and the adversarial nature of the proceedings. I am therefore prepared to award compensation. It would however be wrong to conclude that Ms Cox is blameless and as a consequence the award of compensation will be modest."

[10] Whilst the merits of the appeal were not raised before us we note that the LSL Act provides that an employee who has completed seven years, but not fifteen years, of continuous employment with an employer has an entitlement, if dismissed by the employer, to a payment of pro rata long service leave unless that employment is terminated for "serious and wilful misconduct of the employee".

[11] We note that Commissioner Abey found, with some reservation, that Ms Cox had not been terminated for "wilful misconduct".

[12] It is arguable whether the appeal, had it been correctly lodged, would have been successful.

[13] The application is dismissed.

P L Leary
PRESIDENT

Appearances:
Mr J O'Neill from the Tasmanian Chamber of Commerce and Industry Limited with Mr S Shield for Netcraft Pty Ltd.
Mr G Williams from Department of Infrastructure, Energy and Resources.

Date and place of hearing:
2002
February 7
Hobart