Cuda v The Atherton International Club [1998] QIRC 66 (1998) 157 QGIG 125

124 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETT'E 20 February, 1998 20 Fehruary. 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETI-E 125 ############################11##11###/lllllll#ll##ll#############II Qt:EE:--.'SLA'.':D 1:-.:DLSTRlAL. RELATIOt,;S COMMISSIO'.\' lndu.vtria/ Relations Act /990 .s. 295 - apphca11on for rdn$lakmc.nl Mary Cuda A.\'D 'Jh.; Achcn<.>n ln1crna1ion,,l Cluh {No. 842 of /997) C<>MMISSIONER :'<l"ITER 5 Fdmiary 1998 Terminacion of Fmploymcn1 -Oi.<mis.s;,f - Rci1Lsia1e111enc -Compensation - Redundancy - 1-:v,dcnc.: - Arhicrac"d :'-1.ina- Po�icion and Incumhen1 :1,fad� Rcdundan1 - :'sot Offered Altcrna1< Pn,i1ion - Di$nu;ssal Harsh. Unjusc or ( ·n.-�a.,on<1hk -Rc,n.<lakmcnc lnappropria1c -Cnmpcn.s.11ion (.iran1cd. DEC!SIO.\' Mary Cuda (lh� applicanl) comm-anced full lime cmploym�nt wi1h The ,\thaton lnterndtional Cluh (the rc.sf><)Odcm) on I ScJ)lemf}er 1993 as A�sist.tnt St<.Tctary. 11'-'r si::r\'iC�S wert! 1ermina1ed on 9 Dccemher 1996 when the Commiuec of Man«gement (lh< ('(>mntille,•) passed a m()lion:- ··That the po.,ici\lil vf the A!'. •i�1am Manager. prcsc1Hly hdd hy '.vlary Cuda he declarrd r<.:dundant fro.m J/Ii97, and that the appropriate. redul)dancy package be p,,id lO :vlary Cuda:·. During lhe intervening period che appllcanc had hocn appointed 10 lh< po.si1ion of Assi�tant Manag�r and acted in the po...:ition of Manager on a numher of occasion.< during J 99J and 1996 when ,he said the Cluh was hiring <.>r krm.inating ncv,..- \.fanag,c:rs. The applicant had indicated to th\! C<!.<pondent that she. was nm inkr".<ted in the po.�ition of Manager. Jn July 1995 � ne.w :vtanagcr. Rod Chaffey (thc Manager). wa.s employed on 3 month.< prohativn. The \fanai;er had no previous club manag.:ment experience ;ond the Committee decid<d to have the applicanc continu,· tn run the Club during the prohatwnary period whibt lhe :Vlanager karn.:d or w;.s taught the proecdure.�. At the end of the prohacionary period th" Manag<t wa.< conJirmtld in the po.<icion of i\fonagcr and given d 2 year contract. There is a considcrahk ,,mount of s,vid,mce that the applkant an,! che Manag."r did not have a good W<lfking relacion,hip. Th" applicant complaint'd that each time she aucmpted to show Che Manager lhc work chat n�edcd !Cl he done and how lO do it, he would leave after a .<hon �riod. The Manager wmplained 10 memhcr.< of lh" Comminec that lhc applicant would not show him an}1hing. A range of incident< occurred which I do noc propose h.J detail. However, pan of 1hc proolem wa.s chat the applicant reported directly to th,, Comniillcc and not to lhe Manager. Th" Managor al.so reported dir«:t 10 the Conm uttee.. I t was a recipe for <1i.sa.,1a. Each 1houg.ht th,, ochor wa..s undermining himAlcr. 2592.5_!1)()(: -- 1 of 3 -- 1 26 QUEENSLAND GOVERNMENT INDUSTRIAL G AZETTE 20 Fchruary. 1 998 An incident arme on 1 9 July 1 996 which resulted in some name calling and alk�cd threats hdwcen the appl!rnnt and the \1anager. The applicant alleEed that the \1a11a�cr threw a chalf at her and hit her Ill the thigh. The \1a�a£cr alk�cd that he pushed the chalf towards her "-' he stormed out of the n:,m. ·!'he applicant also stated that she wa., fearful hecause the \1anager had a flick J><>n kmfc Ill his hand at the time. The .\1anager adrrutted that he had the pen kmfe which he stated that he used as a letter opener hut s,tid it wct.s a n1.1.nnai>>m he had and wa.-.: not intended to he a threat to the ,,pplicant. The ,,pplicant said that she suhseyuently contacted the police hut decided not to lodge a complaint in the hope that relations would i mprnw and that to make a complaint would only make the situation worse. However. the applicant did ddvise Philip Cuda. the Cluh Preqdent at the time (her uncle), what had transpired. He spoke to the \fanager ,rnd said thdt the \1anager admitted he threw th,· chair. "]his w,cs denied by the \1anager. A decision wa.s made hy the Committee on 23 July 1 996 after separately hearinE versions frnm the applicant and the \fanager to send the dpplicant on annual leave the next day with the \1anager grnng on leaw after the applicant rdurned. They ohviously hoped this would alleviate ur dt best W<l.kr do\vn the i.-;suc. The applicant alleged that during her f)<'.ri,xl of annual leave K<1k Stephens, the other office girl. came to her home on a nun1hcr of tX..:GL-;ion., and said she wa.'- hcing harassed. hy the· \.1anagcr. Thl' \1anagcr said th<lt he· had rcprirnandL·d Kate Stephens ovcr a numher of rnattc-rs during this pcT1od hut had not hara.-.:.,cd hL'r. K<lte Stephens did not <lppcttr to providt: evidencl._'.. This hdckground material hccorncs relevant lct.tcr on. The next nMJor i.ssue was th,' report hy the extern,d audJtor \1r J. !!i l l to the A(i.\1 . \1r l l i l l i n providing the finanual statements which indicated the Cluh had .sustained a loss for the financial year ended 1 0 June 1 996 also proviLk·d to the nwn1h'-·rship at the rneding a report outlining prohkn1-.· associated with finanu<ll reportmg, con1putcr software, the practict:s related to petty ccL-.;h, the non adoption of a hudgd despite rcconunendations dunng the previous 3 ys:ars dnd prohknl.'- �L'>Si.)ciatcd with the convcr.\ion of records to the new progran1. \1r 11!11 said that the incoming President (hank ( i allo) had discussions with him rcgardmr the dcknoLtting financial po.sit ion of the_' ( '}uh a.s the' President w1�hcd tl� see the situation.....,ren1ed1cd. Refaence w;.L<.; n1ade dunng those discus."ions to los_r.;cs m the caknng an:a, overheads and disproportionate increa.r.;es rn the wage cost.-.; a.s against turnover. At the reyuest of the !'resident, Mr l l i l l stated that he provi,kd a wntkn advice to the Presi,knt on 9 December 1 996. In addition the Treasurer, \1 ichael Cuda, .,ubm.itted a rqx,rt to the Comrnrtke ,m 1 4 October 1 996 cxprc.,sing concerns over a nun1ha of rn£1ttcrs mcludmg the kvd of wages for th-: 3 month period to :lO Scptcmher 1 997 a.s a f)<'.rccntagc of turnover, the bistro and har losses and the n.:--:d for <l hudget. }fr stated tfllPr alza � ·'The (:Juh ha.s achiewd a total turnover m sales for the three month period of $36392'i .00. despite such rea.sonahle results . the total net loss is S28420A5 for the peri,xl, mamly due to poor management and high wages rn rdation to the ahoven1entioned sections of the ( 'luh . Tot,,! wages for the three month penod was S I 1 2 308.00 which represents 30.8% ot the total turnover of the Cluh. I may say no hus1ncss can survive hy paymg such a great 1-1crcentage rn Wdges.". At a n1eeting on 25 \'oven1her 1 996, a n1ot ion was moved that the position of A.,sist:nt \,1anager and the present employee m that position he made redundant. lhL\ motion Wd.\ suhscquently withdrawn. It wa., replaced with a motion thdt John \Vilkin.son (a ixr.son seen c;.s i ndependent) mediate bdwccn the Assistant \1anager ,rnd thi: .\1an,tger lI1 regard to their communication prohkm.s and rqx,rt hack to the Committee. It 1::i cl.:ar trorn the c:vidcnc�· that withrn the Cunmuttce there Wc_'fc 2 factions !11 add1t1on to mdef)<'.ndent members such as .\1r WJ! kmson. It was "UlU!ested th(tt these f<lction.11 d1ff crencc.s n1ay h<lvc heen the ratton<tlc hl·hind cc;:1in motions which were put fl1rward to the Comn1itke. That ClTL1rnly clouded the issue. On (J Dl·cernbcr 1 996 at -t Conunittcc rneding \1r \\/ilkrn .,on rerx)rt ed m re}!ard to discussiDns with the <ippl1cant and the \Ltndgcr. He ·"aid that whilst the <-1.pplicant Wd.:'- prc:part:d to he mvulvcd Jn a rnediation, the \1;,1nagcr wa._\ not. HuwevLr, m di:-,cus."jon5 "cp,tL-tkl y with them thi:rc wa., agreen1cnt to a restructure which changed the reporting structure and tht: Assistant \1anagcr position. He felt this would overcome the commurncation prohlem. \fr W i l kin.son n1ade the following rccon1n1-:nddtlons :- ·That the position of Assistant \fanagcr be aholished. lhat the 1x ,sition of Otfice \fanager he cre<1tcd due to the current Assistant \fa nag er' s accounting ahilit1es in the office and she be reassigned to that pnsltion. That the said employee be placed under the control and responsibility of the �1anager rather (than) bemg under the responsihility of the comn1itk.:. as at present . " A n1otion w�L'- tht.�n n1ovcd that ·'the position of Assist<1nt \1anager he abolished and replaced hy the position of Office .\1anager and that the position of Office :vlanager be created which will hecome under the 3unsdict!()n of the Ciuh \1anager.". lhc motion was lost. 'lhe following rr1ot1nn was then movc_•d and pas.i.:cd. - "that the pos!l1on of the Assistant \1anagcr, presently held by Mary Cuda he declared redundant from the I / l /97, and th<1t the appropnate redundancy package he paid to \1ary Cuda.". It wa., indicated to the Commission in evidence that although the letter from the auditor wa.-.: a vailahk at the n1cding. no other dtx.:urr1cntation or ass-:ssmcnt was J.Vadahk as to benefit-; to be achieved through this rnotion or any other options. ( 'ert<1in work carTied out hy the applicant still needed to he done. The effect of the motion wa.s to not only make the position redundant, hut al:-,o to n1akc the occupant redurn.trnt. One could he torg1wn for believmg that the withdrawal of the same rnotion on 25 ,\' ovcn1htT 1 996 and the pa..,smg of a further motion on 9 Dcc-:n1hcr J ()()6 was to (d low time to orgamsl: numht>rs to p<lS'- the motion on that date. The President indicated that following the motion he had a discussion wnh the Club 's .solicitor., and wa.s g1wn advice that the applicant needed to he offered another job. The ]'resident had discu,sions with the .\1anager who said the only po.s1tion then arnilahle wa., a ;xisit1on of casual doorpcrson. He .,aid that at a meeting on 1 1 December 1 996 (thi.s hcing 2 days after the applicant had been advised her scrvICl\S hJ.d been h:rnunated) she wa.<.: given a detailed explanation of the rea.son.s tor the retrenchment and offered a 1x,s1tion of casual d,x,r;xrson. He said she decli ned to accept that position. The d.pplicanl on the other hand said the wonls used were:- "W-: have to offa you ca.sual work if there 1s any going. and the only thmg goJng i, doonnan, and you would n ' t want to do that.". 1be applicant rephed - -·why don ' t you a.s k me first. Sh,: received no rep! ) . The other person., present c1t thc1t m:ctJng. Wilkinson and the \1anager. venfied that the l'r,,.,ident h,,d used the wonb a.s stated hy the applicant but ,aid rh<1t in thelf op1mon a .1oh offe1 wa., made <1nd the applicant should have known that tha� wa.<- the ca.,c. However, having r,·g,trd to the reply hy the «pphcanl to the !'resident, it would have taken little to state that the applicant wa.s bemg offered the po.s1t1on of casual doorr)t:'r:son. What .,uhseyucnlly happened a.fier this wa., that on 1 4 Decemher 1 996, 3 days afier the nweting with th,· <1pplicant, the respondent l odged a vacanc) with the Department of Employrn,·nt. Educ<1t1on, Traimng and Youth Affa!fS for a lull-time ha.r person who prder.,hly would have .some ckncal skills. This Joh wc1.s not offered to the: applicant. Fou r persons were referred but none rnct the requircrr1ents. The applic£rnt stated in ev1t.knce that she relieved rn the h,u dnd could hctvc earned out the work. r 20 February, 1 998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 27 On or ahout 1 3 Decemher 1 996, K. Stephens, the office girl, resigned her position. The applicant alleged that Kate Stephen., was as ked hy the .\1anager to stay on till 20 Decemher 1 996 so she could teach the new employee the 30b includmg the . hookkeep1ng funct _ ion (a !unction substantial l y earned out hy the apphcant previously). Lv1dence from the President wa.s that the po.sition for a hcx)kkeeper was advertised on 1 6 Decemher I 996 and the appointee, Jenny Cahi ll, commenced duty on 2 1 Dece mher 1 996. In response to a question as to why the applicant wa., not offered the position, the President stated that at the time of termination he wa.s not aware that the junior clerk wa.s gomg to kave. He subseyuently knew that the vacancy would he advert1.sed. The hookkeeping work associated with the position was previously carried out by the apphcant m her pos1t1on a.s Assistant \1anager. The \1anagcr in answer to a ,1uestion a.s to why the har person position wa.s not offered to the applicant .stated that it didn't come to his mind. He said he had other troubles at the time. The Manager wa.s then asked why the applicant wasn't offered the position created a.s a result of Kate Stephens' resignation which occurred a week and a-half after the applicant had heen terrrunated. The an.swer wa.s "she just was n ' t" and further on - ")io ] never thought to ask her that and I - well the main rea.,on is because \1ary and I, especially after the ]a.st comments of hers m the office, why would I - why would I want to employ \1ary in that situation?'. Throughout the hearing there were no allegations that the applicant wa.s not a competent and efficient employee. The Commission wa.s adv1.sed that a Special General \1eeting was held hy the Club on 9 :vlarch 1 99 7 so that memhers could he hrrefed by the Cluh' s legal ad visors of the proceedings by the applicant agamst the Club and for memher.s to determine their attitude to the application. lhe Cluh' s hamster stated to the memhers the problems of golllg to Court and urEed the memhers to endeavour to settle out of Court. '.\otwithstandmg this advice, a motion that the Cluh endeavour to settle the matter w<1s lost and a motion that the Cluh defend the matter in Court wa., pa.s.sed. Conclusions In the face of the re;x))1S of the external auditor and the Treasurer there is no douht thdt there wa., a need for the ( :Juh to restructure its operatwn., to ensure that the Cluh did not smtain further lo.sse.s <1nd achieved viahility. One of the options availahle to the (:Juh wa.s to restructure 1t.s operations in the administration area hy making redundant the position of Assistant .\1anagcr and reallocating the work previomly carried out in that position. However, the process then used i n making that determination and the process applied after the determination wa., made Jett much to he desired. The origll!al motion to make the position and person redundant was put forward with no supporting data. It was put forward hy a Comrnrtke memher who allegedly had a grudge against the applicant hecau.se the applicant had heen returning officer on a previous hall ot for 1xisitions and the Cornmltlee member believed the applicant had r ncorrectly counted the votes. lhe motion wa.s .,uhsequently w ithdrawn. The second motion wa.s also supported hy l i mited documentation although the letter from the auditor wa.s available saying .something must he done in relation to reducing staffing cosls. The letter did not categonse any sptcifics. However, the motron put forward and passed made not only the position hut the occupant of the position redundant. I t wa.s a fait accompli. It left no room for discussions with the ,tpphcant regarding contll!uation of employment. It left no options to he explored. The only thing that did occur alter the termination w,cs to have a di.scus.sion with the applicant on advice from the Cluh' s solicitors concerrnng a position of doorperson. She said she wasn't offered the position. The President said she wa.s offered the position of doorpcrson. I have concluded that the President, whilst helieving he made the offer, did not specifically do so. I t wa.s up to him to ensure that the offer w,Ls made. However, little hangs on this. What wa.s more relevant wa.s that within days 2 other positions which were either notified a, vacant to CES or <ldvcrt1scd, which Wt..TC n1ore appropriate to the work the applicant wa.s performing, were not offered to her. The answers given a, to the rea:..;;ons for not offering her a position were unacceptah]e. This lea,ls me to the conclusion that it wa.s alway.s the intention to dispense with the applicant i n the restructure notwithstanding the action by \1r Wilkinson who sought to resolve the issue. This conclLLs ion 1.s reached for 2 rea.son.s - 1 . The alleged unsatisfactory workmg relationship hetween the applicant and the :vlanager which could not he allowed to continue. Th1.s had been partly caused 'L' a re.suit of inappropnate reportll!g practice., and partly a.s a result of f)<'.rsonality clashes. '.'kither the previous nor present Committee dealt effe ctively with this prohlem. 2. The factions on the Committee. This resulted Ill the motion being passed m the way it wa.,. The .supporters of the applicant did not have the n1ernhers on the Con1mittec to prevent that n)ot1on herng p«s.sed. In saying this I am satisfied that the Comrruttee needed to take action to arrest potential losses in the Club. However, the process used in terminatmg the applicant wa., flawed. Had the Committee adopted the motion put forward hy \1r W!lkmson at the meeting on 9 December 1 996, then the appltc,rnt would have heen treated fairly. Whether i n the restructure proposed the applicant would haw heen satisfied with the final salary detc::rnlin-:d Mid the rCfX>rtrng process J.'- not known. (The applicant certainly wa., prepared 1mt 1,tll) to accept the repor1ing process.). However she would have been provlclccl with the opportunity to have discussions on options avdilahk hefort: hl•Jf!g tern1in,1.kd. It may very well have been that Kate Stephens may haw Mln,cd th'1t .she Wd.<-; resigning m a week and that position cou ld haVt'. hLc'n uttered t\1 the appl icant. :\either the !'resident nor .\fanager wa., <1ware that Kate Skphc'n.s was resigmng. It n1ay have h��cnn1e known if discussions h,t.d taken pL:tce with staf f . I am satisfied that h a d t h e applicant continued in employment having regard to the relationship hctween her and the \1anager, that fences would not have heen rnend,,d whereby the '1pplicant would have estahli.shed a re;csonahle working relationship. T,x, much had flowed under the hridge hdore this. I am sat1.-.fied that there were no alkg,ttiun.s.; rnade <1gainst the applicant on the ha.s is of capacity or perfomMnce. I £im satisfied that the pn.x:c.,s u1.;ed with regard to tt-rnuncttion Wd5i not fair m terms of the Act. I have also formed the view that rei nstaten1t:nt L\ unpractJcdhh.: rn th,1t do not hdicve that a satisfactory working rdat1on.--,h1p cuuld now he established hetween the apphcant and the .\1anager or for th,tt matter with the present Conurutke having regard to al l that has dccurred. \1r 1\ 1chol.son for the applicant concurred with thi.s staring Ill h1.s final suhnussions "we ohv1ow,;ly don ' t see reinstakrn-..:nt as an opt ion" (T' cnpt p. 1 79). Section 297/2)(h) of the Industrial Relatiom Act 1 990 prnvides:- "(h) if the Corntnission considers remstatcn1ent wou ld ht' u11pract1cahk - the cn1ployer n1ay pay the cn1ployec an amount ot ,:ompcn.'-<ttlon decided by the Commission.". Subsection (4) provides - ··(4) l ·nder suhsectwn (2)/h), the amount of com1><>nsat1on must not he greater than the remuneration the employer would haw been hahle to pay the employee for the 6 months immediately following the disn1issal, paid at tht' rate the cn1ployec recei,:cd 1:1unt:diatdy hdore the disnu.ssal. ". The mtent of the Act is to pla1.,t: .t wrongful!) tti'1nis."t:d cmpl1 1J\'C !11 ) less favoura.hk a position than had the-y nn( hc'en d1sn11s'-c'd Th-: applicant received payn1cnt m lieu nf !H'tlc,: totalling 56, 1 20. In addition she mitigated her loss h:, position on 1 3 January 1 99 7 . I l er carrnng.s from the p,,rt·!Jn,c -- 2 of 3 -- 128 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE following d1smis,al 10 �Ii Jun-, J9n l<»alkd 56.854 an av.:r;,gc of 5286 ps:r W�ck. I propo�<: to aw.,rd c,.1mpcnsation to cov.:r th� lo�� which she incurred 1hrough no! rt'.maining in <>mploynk!nt wi1h the rcspontknt un1il 9 '.\'larch I <)97, a 1xriod of 3 mn111h.s f«lm datt of 1crrnina1ion. I think it mo,1 unlikdy che �mploym?nt could ha"� wn1i11ut:d p,cst 1h1s dalt'. Thi., mcludc.s che 2 week peri<x1 during which . '-he wa<.: un�mplny0d in h,nu,,ry, the !o.x...; in income frnm I) January I9'J7 to 9 :\-fareh I ')97 and " c:rcdic for on,: w;;ak's rc<.:rc"ation lcav� chat would hd\'(;" JC\.Tlh!d (\) her during thi� rx�riod (ht..:r employment afkr krnunation wa., c1sual and did no! accrue ka vc <>ntickments). The amount aw,U'ded i, $4,:l 12. Paymenc should he made hy the rn,pondcni to the applica111 wi1h,n 2 I day.< of the rdea.,c of 1hi.< dct:i.s1on. \fr !\icholson ,catcd that in the ,·wnc of a favourahk \)(Jtcomc. the applic,ull would he ,caking ,·0,1.,. (f"t:npc p 179). The p<trtics a.re in.,tru<:t..::d to �uhn1i1 wnth:n �uhnti.-..-.itms on 1.:0.,L�. Suhmission-' from th..- applic,tnl -.hould he> fnrwardt•d to lht.' l'.;.'Sf)(lndL·nt and the Commi.ssion hy �.00 pm on 6 \fard1 1998. Th� reply from the r�.,pondcnc should hc fr,rw,1rdcd to the ;,pplicant and ch,1 ( 'nmmis�ion hy :i.00 pm on 27 \,l,,rch J ')98. On.h.:r <lCCOrtlingly. B. J. \T TIT'.R, Comm i�sions:r. i\pp.:ara11r,.I':- Mr. L.. Kkhol.<011 for eh� appli<.:am \1r R. Whice for !ht' The Rt'gistered ;,nd l .it't'tL<t'd ( 'Juhs As.,od�titin ,if (luccnsland, l 'nion of Ernploy,' r., for the r..:.<fX>nd,·1\1. Operali\'o Dai-,: \/A l)�c1s1on - n,::in!-latcnk.::nl -c(1mpc.:n.-:;:1lilm Rdca<ed: 5 h,hru,lfy 199S ########################################################## 2(J Fchrnary, 1998 20 Fchrnary, 1 998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETfE 129 -- 3 of 3 --