Bryden v Training Recognition Council; D.J. Richardson Pty Ltd v Training Recognition Council [2001] QIRC 28 (2001) 166 QGIG 305

23 March, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 305 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Training and Employment Act 2000 – s. 230 – appeal Malana Tamara Bryden AND Training Recognition Council (No. AT1 of 2000) D.J. Richardson Pty Ltd AND Training Recognition Council (No. AT2 of 2000) COMMISSIONER BLOOMFIELD 28 February 2001 Appeals – Decision of Training Recognition Council to cancel Training Contract – Appeals allowed – Decision to cancel Training Contract set aside – Commission ordered that Training Contract be cancelled from date of commencement – Compensation awarded to employee. DECISION Ms Malana Tamara Bryden has lodged an appeal (AT1 of 2000) under the Training and Employment Act 2000 (the Training Act 2000) against the decision, dated 5 October 2000, of Mr David Benson as delegate of the Training Recognition Council, to repeal her Training Contract with D.J. Richardson Pty Ltd t/a Wulguru Colonial Bakehouse. The Training Contract (referred to as a Training Agreement under the predecessor legislation) was for a Certificate Level III qualification in Business (Office Administration). It had a commencement date of 28 April 2000 to coincide with the completion of an earlier Certificate Level II Training Agreement between the same parties. A second appeal (AT2 of 2000) was subsequently lodged by D.J. Richardson Pty Ltd in correspondence to the Commission received on 20 November 2000. By leave of the Commission, time was extended to the employer, pursuant to s. 230(4) of the Training Act 2000, to allow it to commence its appeal outside the 21 day time limit contemplated at s. 230(3). The basic facts of the matter are quite simple. -- 1 of 4 -- 306 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 March, 2001 D.J. Richardson Pty Ltd operates the Wulguru Colonial Bakehouse, which includes a retail operation. Ms Bryden commenced employment in April 1999 under a Training Agreement designed to achieve a Certificate Level II qualification in Small Business. Upon her successful completion of that traineeship negotiations occurred between her mother, herself and Mr Richardson about continuing employment. After discussion with representatives of Townsville Employment Training Inc (TETI) a new Training Certificate Level III Training Agreement was entered into on 24 May 2000, operative from the cessation of the earlier agreement, viz 28 April 2000. At the time that the second Training Agreement commenced the company had very limited training facilities and the only possible persons who could train Ms Bryden in the areas to be covered under the new traineeship were Mr Richardson and his mother, Ms Billee Richardson. Mr Richardson said that he had discussed the training requirements with representatives of TETI informing them that it was his intention to purchase certain computer and other office equipment in the near future. Taking into account that intention, as well as the facilities that TETI itself could provide in off-the-job training, TETI apparently agreed that sufficient facilities and supervision existed to allow Ms Bryden to be trained at the requisite level. Unfortunately the equipment was not purchased. Further, the parties to the agreement did not develop a training plan as required by the legislation. Similarly, Ms Bryden was not provided with a Training Log Book as required under the procedures governing the administration of training agreements. The evidence also disclosed that Ms Bryden essentially worked as a food preparer and as a shop assistant in the retail section of the bakery. Whilst undertaking that role she performed some minor ordering and stock control functions as well as balancing the till, banking and securing the premises at the end of the day. Mr Richardson claimed that the latter roles were relevant to the Level III Training Agreement that the parties had entered into. However, the evidence suggests that most of those tasks were already being performed by Ms Bryden when the new Traineeship commenced. Ms Bryden’s attempts to access the additional requisite training required under the Training Agreement were not acted upon nor taken up by Mr Richardson. Her attempts to contact the appropriate officer at TETI about her concerns at the lack of training were also frustrated because of that person’s absence. Her approaches to Mr Richardson about the issue apparently caused some tension between them because Mr Richardson was more preoccupied with bedding down a major new contract (involving the preparation and delivery of pre-prepared food trays, platters and sandwiches) which had been obtained by the company. On 31 August Ms Bryden was asked by another employee, Ms Larson, how she should prepare a particular product for the major new contract. Ms Bryden was not sure about the product herself and suggested to Ms Larson that she ask Mr Richardson how it should be done. She said that the following exchange then occurred between herself and Mr Richardson:– Mr Richardson: “Stop standing there like a fucking goomie and go and get a fucking bag and show Val how it’s done.” Ms Bryden: “I wasn’t too sure what you put on them and I told Val to ask you.” Mr Richardson: “Are you hard of hearing?” “Get that fucking dweeb to come and pick you up.”. Ms Bryden says that as a result of this exchange she went home. Later that afternoon she went to TETI to make enquiries about her treatment with a view to asking that organisation to contact Mr Richardson to establish what his future intentions were. Her contact person at TETI was absent on that day and the other officers that she spoke to said that they would get her to talk to Mr Richardson upon her return. The contact person was also away on the following day, Friday 1 September. On the following Monday, not having heard from TETI, Ms Bryden arranged for a friend to talk to the Department of Employment, Training and Industrial Relations (DETIR) about her predicament. The friend informed a Ms Ann Bahr that Ms Bryden was under a Training Agreement and that she believed that she had been dismissed by Mr Richardson the previous Thursday. The circumstances (above) which gave rise to that view were explained to Ms Bahr. Ms Bahr undertook to contact the employer to get its version before taking the matter further. Ms Bahr phoned Mr Richardson to make an appointment to meet with him on the following day to discuss the matter. During the meeting she put to Mr Richardson that she had been told that he had dismissed Ms Bryden to which he answered “Yeah”. She informed him that it was not possible to terminate a Training Agreement in that manner and he allegedly became a bit aggressive and replied with the comment that he “didn’t want to be pointed out to be the effing bad bastard in this lot”. She informed him that she was not there to take sides but it might be possible to cancel the Training Agreement with the consent of Ms Bryden. If she agreed the matter could be processed on that basis. If not, and he wished to cancel the traineeship, he would have to make application. Mr Richardson signed an Application for Cancellation form and left it to Ms Bahr to speak to Ms Bryden about whether the matter could be processed by consent or otherwise. A day or so later, Ms Bahr spoke to Ms Bryden about whether the cancellation could occur by mutual consent. Ms Bryden refused. Ms Bahr then commenced the processing of the Application for Cancellation signed by Mr Richardson. After discussions between officers of DETIR it was felt more appropriate that the Training Agreement be repealed from its original commencement date rather than cancelled upon the application of Mr Richardson on the basis of lack of facilities, lack of supervision and the failure to provide training as required under the Training Agreement. In line with this intention each of Ms Bryden and Mr Richardson was forwarded correspondence on 19 September calling on them to show cause why the Training Agreement should not be rescinded because:– • The workplace did not have the capacity to train a trainee in the Certificate Level III Business (Office Administration) program as the necessary equipment had not been installed. • There was no full-time supervision by a qualified person for the traineeship. • The trainee was working as a shop assistant in the bakery and did not carry out any office administration duties. Ms Bahr phoned Ms Bryden to warn her of the arrival of the show cause letter. Ms Bahr indicated to Ms Bryden that she did not need to act on the letter as it was primarily directed at the employer. Accordingly, Ms Bryden did not respond to the “show cause” letter. Mr Richardson provided only a limited response. -- 2 of 4 -- 23 March, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 307 On 5 October 2000, acting as the delegate of the Training Recognition Council, Mr David Benson wrote to Ms Bryden and D.J. Richardson Pty Ltd, respectively, informing them that the Training Contract had been repealed effective 28 April 2000. The “information notice” attached to the letter purported to rely upon s. 66(1) of the Training Act 2000, as well as s. 24AA of the Acts Interpretation Act 1954, together with s. 55(1) of the Training Act 2000 as the foundation upon which Mr Benson had acted to repeal the Training Agreement/Training Contract. It is against Mr Benson’s decision to repeal the Training Contract that each of Ms Bryden and D.J. Richardson Pty Ltd have appealed. Ms Bryden seeks the following orders:– 1. Appeal No AT1 of 2000 be allowed. 2. Appeal No AT2 of 2000 be dismissed. 3. The decision of David Benson for and on behalf of the Training Recognition Council dated 5 October 2000 be set aside. 4. The contract between Malana Tamara Bryden and D.J. Richardson Pty Ltd be cancelled under section 237 of the Training and Employment Act 2000. 5. The employer pay the appellant compensation under section 124A(1) of the Vocational Education, Training and Employment Act 1991 and section 237(b) of the Training and Employment Act 2000 [equivalent to six months’ pay]. 6. The employer pay the appellant an additional amount under section 124A(4) of the Vocational Education, Training and Employment Act 1991 and section 240 of the Training and Employment Act 2000 fixed in the sum of [equivalent to four weeks’ pay]. The employer, D.J. Richardson Pty Ltd, seeks the following orders:– 1. Appeal No AT1 of 2000 be dismissed. 2. Appeal No AT2 of 2000 be allowed. 3. The decision of David Benson for and on behalf of the Training Recognition Council dated 5 October 2000 be set aside. 4. The contract between Malana Tamara Bryden and D.J. Richardson Pty Ltd be cancelled under section 233 of the Training and Employment Act 2000 with effect from 31 August 2000. Having regard to the nature of the proceedings the Commission decided to hear the appeal as if it were a fresh matter pursuant to s. 232(2) of the Training Act 2000. Evidence was given by the following persons:– • Malana Bryden • Matthew Carroll (statement filed – not called by any party) – the friend who phoned DETIR • Mrs Hannar Bryden – Malana’s mother • Darryl Richardson • Cameron Skene (statement filed – not called by any party) – employee of the bakery • Valerie Phillips – employee of the bakery • Billee Richardson • Ann Bahr It is not necessary to traverse the evidence of the various witnesses as the essential elements have been spelt out above. However, it is necessary to record that I have considered all of the evidence of all of the witnesses and that I have determined points of conflict based upon my assessment of the whole of the evidence, inconsistencies in the way the particular witnesses gave their evidence and the demeanour of all witnesses during their time in the witness box. In particular, I record that Mr Richardson did not present well as a witness. His answers to questions were inconsistent and he regularly changed his position if pressed or if he thought that some advantage could be obtained if he gave a different answer. It is clear to me that Mr Richardson did use the general words (above) which are attributed to him by Ms Bryden when he spoke to her on 31 August 2000. Although Mr Richardson denied, under cross-examination, that he had sworn at Ms Bryden, he did agree that the conversation between them had flowed largely as suggested. Similarly, whilst denying that Mr Richardson had sworn, Ms Phillips also volunteered that the conversation had flowed as suggested. In addition, she said that Mr Richardson had told Ms Bryden to “get out” or to “go home”, or words to that effect. I have concluded that Mr Richardson did swear at Ms Bryden as suggested. His propensity to swear as part of a normal discussion was evidenced by Ms Bahr – a public servant simply performing her duty. Although Ms Phillips denied that Mr Richardson had sworn I think that her recollection of events is faulty. She had most probably heard swearing on so many occasions around the workplace that she had closed her mind to such words whenever she heard them. Whilst Mr Richardson might not have intended to directly terminate Ms Bryden’s employment on 31 August it is clear from the events which followed that he viewed, and treated, the events as if he had. Whilst he sought to resile from it at the time that he gave his verbal evidence, Mr Richardson’s written statement to the Commission on 20 November – when he announced his intention to appeal – included the comment that when he had not heard from Ms Bryden for several days after 31 August he instructed his mother to “make up her pay and pay her out”. Further, Mr Richardson did not deny that he had terminated Ms Bryden when Ms Bahr met with him on 5 September to discuss the incidents of the previous week. Had he not believed that he had terminated Ms Bryden that was surely the time to attempt to correct the position. Similarly, if he had not intended that his actions be taken as a termination of Ms Bryden’s employment he did not need to go through with the request to cancel the Training Agreement. He could have told Ms Bahr it was all a mistake and that Ms Bryden should come back to work. In all of the circumstances I am satisfied that Mr Richardson’s actions resulted in him purporting to cancel the Training Agreement between D.J. Richardson Pty Ltd and Malana Tamara Bryden in a way other than as contemplated by legislation. -- 3 of 4 -- 308 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 March, 2001 When Mr Benson wrote his show cause letter to Ms Bryden and the employer on 19 September 2000 the relevant provisions of the Vocational Education, Training and Employment Act 1991 governed his actions. By the time the decision was taken on 5 October 2000 to cancel the Training Contract that Act had been fully replaced by the Training and Employment Act 2000. Section 66 of the Training and Employment Act 2000 is in the following terms:– “Cancelling registration of training contract 66.(1) The council may, by fair procedures prescribed under a regulation, cancel the registration of a training contract if the council reasonably believes – (a) the contract was registered in error or because of a materially false or misleading representation or declaration; or (b) . . . . . . . . (c) . . . . . . . . (2) The council must promptly give the parties an information notice for its decision. (3) . . . . . . . .”. At the time that the decision to cancel was taken there were no relevant procedures prescribed under a Regulation. Such procedures did not come into effect until the Gazettal of the Training and Employment Regulation 2000 which became effective on 20 October 2000. There was a period where there was a void. This fact was apparently recognised by Mr Benson because he sought to rely upon s. 66 as well as s. 24AA of the Acts Interpretation Act 1954 and s. 55(1) of the Training and Employment Act 2000 to ground his decision. In the absence of a suitable fair procedure prescribed under a Regulation, as at 5 October 2000, it is unclear whether Mr Benson had power to cancel the Training Contract as he purported to do. However, if he did have such power at the time it would have been appropriate for him to have exercised it in the way that he purportedly did in the circumstances of this case. It is abundantly clear from the evidence of Ms Bryden, Ms Bahr, Mr Richardson and Mrs Richardson that the employer did not have the necessary equipment and range of work to adequately train a person in the range of tasks and duties necessary for her to be able to complete the Certificate Level III Business (Office Administration) program, notwithstanding that some training might, at some stage, have been provided at the offices of TETI. The reality was that Ms Bryden performed work which was covered by the Baking, Processing, Distribution and Manufacturing Industry Award – Northern Division rather than work which would have been necessary for her to have undertaken the Certificate Level III Training program. In the circumstances I have decided that it is appropriate to allow each of the appeals. Although it is unclear whether Mr Benson was entitled to repeal the registration of the Training Contract the reality of the events is that the employer, through the actions of Mr Richardson, purported to cancel the Training Agreement by its actions on 31 August 2000 in a way other than as contemplated by legislation. The events which followed – including Mr Benson’s actions – do not change that fundamental fact. It is the Commission’s order that each of the appeals be allowed and that the decision appealed against be set aside. In substitution the Commission makes the following decision and order pursuant to s. 233 and s. 237 of the Training and Employment Act 2000:– (1) The registration of the Training Contract between Malana Tamara Bryden and D.J. Richardson Pty Ltd be cancelled with effect from its commencement date viz. 28 April 2000; (2) The employer D.J. Richardson Pty Ltd is to pay Malana Tamara Bryden compensation under s. 237 of the Training and Employment Act 2000 in the amount of $5,827.09 within 22 days of release of this decision. Such amount of compensation has been calculated by reference to the underpayment of wages by the employer to Ms Bryden by engaging her under a Training Agreement rather than under the Award between 28 April and 31 August 2000. The amount of underpayment, taking into account holiday pay and two weeks in lieu of notice is $3,508.39. The compensation also includes an additional amount of $2,318.70, which represents the equivalent of six weeks’ wages at the Award rate of $386.45, as compensation for the manner of her termination and her loss of income because of her loss of employment. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Appearances:– Mr R. Armstrong, with Ms J. Melick of Roberts Nehmer McKee Lawyers, for Ms M. Bryden. Mr D. Richardson and Ms B. Richardson for D.J. Richardson Pty Ltd t/a Wulguru Colonial Bakehouse. Mr D. Benson and Ms A. Bahr for the Training Recognition Council, Department of Training and Industrial Relations. Released: 12 March 2001 -- 4 of 4 --