Butcher v Scanmaze Pty. Ltd. trading as Harvey World Travel, Tully [1995] QIRC 371 (1995) 150 QGIG 165

164 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (8 September, 1995 8 September, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 165 ####################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION /ndus1rial Re/a/ions Ac, /990 s. 295 - appl ication for reinstatement Frances Anne Butcher AND Scanrnazc Pty Ltd . tra ding as Harvey World Travel. Tully (1\'o B289 of 1993) CLER ICAL E:\·1PL OYU.: S AWAR D -S TATE COM MISSIONER RLOOMFIELD 24 August 1995 Wrongful Dismissal - Re instatement Now Impracticable- Variation of Original Deci sion - Additional Compensation Awarded. SUPPLEMENTARY DECISION This matter has had a long and chequered history. It is unnecessary to recount that history here because it is wel l known to the direct parties involved and it would serve no worthwhile purpose to traverse it again. Withou t fear of contradiction I wou ld describe it as one of the most difticull. and adversarial_ cases wi th which I hav e had to deal. On IODecember 1993 I issued a decision in which I found that Mrs Frances Butcher ha d been wrongfully dism issed. Hav i ng regard to the unusual circumstances of the case I gave Mrs Butcher an opt ion as to whether she would elect to return to work with in a particular per iod following the birth of her child or to receive twelve ( 12) weeks compensation pursuant to section 175 (I) (c) in respect to her wrong ful termination. The re were various disputes between Mrs Bu tcher and he r employer about a return to work and the basis upon which that return might he effected. This progressively worsened the position between th e parties to the point where the Federated Clerks' Un ion of Australia, Nort h Queensland Branch. Un ion of Employees on behalf of Mrs Butcher, notified a dispute to the Commission . Despite several conferences I was unable to resolve the differences between the parties. Ultimately the employer caused an application to be lodged which asked the Commission to review its earlier decis ion and to a llow the e mp loyer to sever the relationship by paym ent of the original twelve (12) weeks compensation . The Commission conducted an abortive hearing on thi s application Ill Townsvi lle on 25 May 1995 and adjourned the matt er to Cairns on 29 June I995. During the courst.! of proceedings on that day it became progressively cl ear that. despite my observations in the earlier dec is ion that reinstaternem was practicable, there was now no chance whatsoever of a successful employer/employee relationship be ing re- created between Mrs Butcher and Mr Taylor. At a particular point in the hearing this fact also became evident to a ll the parties. I called a halt lo proceedings and directed the parties to confer as to how the) wished to have the matter finalised. At the conclusion of the conference it was confinned to me by Mrs Butcher, Mr O' Donn el l. Mr Taylor and Mr Garske that reinstatement/re-employment was not an op tion . The parties agreed that I be empo\\ered lo detem1ine an appropriate compensation payment having regard to all of the facts and circumstances which had led me to the original decision and to the facts and circumstances which had transpired since that time . The parties informed me that they would be co111fo11able if my findin g was wi thin a part icul ar range which had been ca nvassed bet ween them and which they had made lat0\\-n 10 me. Accordingly, in the extremely unusual circumstances which now confront me I am prepared to vary (and now do vary) the original decision which I made on 10 December 1993 to provide only a s ing le outcome, namely: that the employer, Scanmaze Pty Ltd, is to pay to Mrs Frances Ann e Butcher the sum of SI0 182.15 (representing an amount of seventeen ( 17) weeks of compensation for wrongfu l dismissal) pursuant to section 175 (I) (c) of the Jnd11s1rial Relations Ac/ 1990, as it stood at 10 December 1993. The amount. although calculated by reference to a particular number of weeks. is compensation for wrongful dism issal and should be treated as such by the employer hav ing regard to its obligations under th<: Taxation Act. The total amount {net of taxation obl igat ion s) is to be paid to Mrs Bu tcher by 3 1 August I 995 . I so order. A.L. BLOOMFIELD. Commissioner Appearances:-- Mr .I . O'Donnell. of the Federated Clerks' Un ion of Australia, North Queensland Aranch, Union of Employees for Mrs F Butcher. Mr P. Garske and Mr D Taylor for Scanrnaze Pty Ltd trading as Harvey World Travel, Tully. Operative Date: 24 August 1995 Decision - Compensation Released: 28 August 1995 ####################################################### -- 1 of 1 --