Clemments v Yuddika [1994] QIRC 445 (1994) 146 QGIG 977

976 QUE EN SLAND GOVERNMENT fNDUSTR IAL GAZETTE l26 Au gust. 1994 26 Au gust, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 977 l/######/lll#####ll#######ll###ll#/lll##ll#ll##ll#####/lllll/l#/11111/1111/11 QUE ENS LAND INDUSTRIAL RELATIONS CO MM ISS ION lnd11strml Re/a/1011s Act 1990 s. 174 - applic.il ion for reinstatement s. 320 and r 25 - med iation Carl e..: n Dori s Cle mment s /\ 1) Yuddika (Abo ri g in al and Islander Child Care Agency) {No. B/61/ o//994) CO MMIS S ION ER BLOOMflEU) 2 Au gust I 994 Reinstatement - Tcnnination of Empl O)·lllen l - Dism iss al - Re - Employment - Co mpen sati on - Pa ymen t for Los1 Wages - Mediation - Publ ic !merest - Period of Employme nt - Absences from E111p loymcn1 - Com mi ssion Be lieves No Po ss ibili1y o l' Successful Re storation of Employer/Employee Relationship - Emp loyer Enti1led to Mak e Decis ion 01 10 Continue Employment - One Weck·s Wages lo be Pa id in Lieu of Not ice Plus O ne Day's Wages. REPORT ON DEC ISION (as edited) In giving h is decision f'rom 1hc Bench in Cairns on 2 Augu ~t 199 4 Comm issioner Bloomfield stated :- "Backgrou nd This mauer arises as a result of an application lodged on behalf of Ms Carleen Doris Clemments seeking rcmsta1cment or re- employrncn1. plus compensation. in respect of her 1e nmna 1io11 b) the Yuddika (Aboriginal and Islander Chi ld C,1re Agency) on 7 February 1994. The applica1ion, having occum.:d before Lhe Industrial Relations Refonn Act commenct:J opera 1i on on 30 March 1994, is to tie dealt with und er sect ion 17 4 and section 175 of the previous Act. After a number of earl ier fa iled hearing attempts before Commissioner Edwards th e matter was reassigned to th e Co mm iss ion as presently constituted and li sted for hearing iu Cairns on I and 2 August 199 4. At th e commencement of proceedings Ms Clemments represented h.:rself. and the Yuddika (Aboriginal and Islander Ch il d Care Agi:ncy) was represe nted by Ms Margaret Ahkee. Bo th of th ese persons ar.: lay advocates and both had great d iffi culty in dealing with the fonnalities of proceedings in 1he Indu st ria l Comm ission. Co nseque nt ly the Commission took an active role itself in order to assist the parties and 10 detcnnine for itscl f what the rea l issues were . TI1is approach has been cri1 icised in other ·1 ribunals but 1he Commission as cons1ituted believes that it has a res pon s ibi lily 10 detem 1ine outcomes bas ed upon equi1y and good conscience. and in the fu ll kno"le dgc of all of the fam, rather 1ha n in the li gh 1 of which advocate omits the least amoun1 of in fo nnation in th e prosecu1 ion of their case. At1er hearing evidence from Ms Clemments and from Ms Ahk ee the Co mm iss ion took the unusual s1ep of inqui rin g of Ms Cl emments what she was really seeking in respect of her ap pli ca tion. M~ Clemmen ts responded by indicating tha t she was see kin g compensa1ion for wron g ful dismissal, a nd payment for lost wages since that time. The Co mmi ssion inforn1ed Ms Clemments of the difficultic~ which 1he Commission would have in arriv in g at such a sol uti on given lhe constraints im posed by th e legisla li on cover ing her dismissa l. and the rem edies open 10 the Co mmi ssion. (See for example Ach al v Elec1rorux 14 3 QG lG 144, and Drcsk var v The Li beral Panv 145 QG IG 869). In the li ght or 1he evidence advanced to thal point and in the fu rther light of Ms Clem ment s· srntemcnt as 10 ~,hal s he was seek in g. the Commiss ion took the additional h ighl y unu sual Slep of suggesting 10 both parties . in Lhe pub lic i11tercs1. 1ha1 t hey submit the case to mediation pursuant 10 section 320 of the Acl. and rul e 25 of The Rules ofCoun. The Co mm iss ion e llp lained th1: process involved. should 1h c panics be agreeable 10 such a course. anJ adjourned the proceed ings to a llo w both parties to consider their posi t ion s. Upon resuming. 1hc Conunis~ion answered several funher questions of 1he panics before inq uir in g whether they ,\ished to submit to mediation. Bolh panies indicateu t hai th ey wi s hed lhe matter to be detennined b) mediation. Bo th parties also agreed 10 be bound by the decision of the Commission followi ng mediation. and bo1h in dicated that 1h ey understood tha t once dete rm ined thi: decision was final and 1101 subject to appeal. To reduce forma li 1y . and in order that the issues surrounding 1.h1: tennina1ion could Ix frankly raised. and explored in that light. lhe Commission chosc not to record the mediation proceedi ngs . The Commi ss ion chaired the proceedings fo r an addilional On(; and one-half hours during which bo1h parties were given an equal, and an amp le, opportunity to outl in e th eir re spec1 ive cases. The Commission imposed no time limils on such proce s~ -- 1 of 2 -- 978 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (26 August, 1994 and took pains to establ ish that both parties had presented all the i11forn1ation/ 111aterial that they wished to canvas. At 1he conclusion of th e mediation proceedings th e Commission indicated that it wished to re fl ect on 1he issues raised. and wo ul d hand down it 's decision at 9.30 a.m. on the following day (Tuesday, 2 Au gust). Decision The Comm iss ion detern1ines that. based on th e evidence. Ms Clemments was in itially appoin ted fo r a period of 16 weeks under a Jobstart Subsidy. Ms Clem ments might have had her 0v\11 expectat io n of a longer period of employment bu t this do es not alter th e fac tual position. The Com mi ssion also detennines t ha t based on the evidence Ms Clemments was offered contin ui ng employment commencing on 14 January 1994 in connection with the visitation program associated with the National Family Violence In tervent ion Program. Whatever was discussed between Ms Clemments and Ms Ahkee as tc t he actual perio d of employment I make no comment other than to note that it was clear to the applicant. Ms Clemments, just a few days later that the position was not pennanent and that applications were being ca ll ed for the pennanent position. A lthough the events an d circumstances which occurred between 2.00 p.m . on 14 January 1994 and Sunday 23 January 1994 <1 rc unfortunate I have not considered them in coming to a conclusion in thi s ma tt er. It is clear that Ms Clemments' mind w a~ elsewhere and that any absences during thi s period were with the knowledge and consent of her emp loyer. Eq uall y. the absences during the period Monday 24 Jan uary to Friday 28 January were within the knowledge of the emp lo yer. Whether there was consent in re lat ion to thcse absences is an e nti rely different mailer. Because I' ve not been able to hear from Mr Ga vin Ahkcc in re sp ec t of his movcrm:nts between Monday, 31 January and Wednesday. 2 February (in the eveningi I have nothing agains t which to reference the evidence and tes timony of Ms Clemments in respect of that per io d, and so will afford her th e benefit of th e doub t. In moving fr om this point, however, I ind icate that her mov ements seem to be at odds with t he it in erary and dillicul t to explain. and in that sense unusua l. However I have indicated th at I will ex tend to he r the benefit of the do ub t in respect of these three days. Be t ween late Wednesday evening on 2 February and Friday 4 Fe bruary her movemen ts were under the control and direct ion of Mr Gavin Ahkcc. That b rin gs us to i February. On that day the employer. th rou gh Ms /\hkee, infonned Ms Clemments that her employment was 10 be tern1inatcd effocti ve from the previous Fri day a ft ernoo n. Although the in itial decision to tenn in ate was taken hy t he cha irn1an an d treasurer of Yuddika, it has since been confirmed by t he full executive of Yudd ik a (Aboriginal and Islander Child Care Agency). That such a decision had initia ll y been taken is not w ith out so me influence. That the decision was ultimately confinned by the fu ll executive is of greater moment and of greater influence upon the Comm is sion. The app li cat ion lodged in t hi s matter asks th e Commission to order the Agency to re i nst ate or re- em ploy Ms Clemments. The Co mmi ssion believes that there is no possibility of a successful restoration or the employer/employee relat io nship. Although this was evident in the Commission proceedings proper it was more than amplified in th e mediation proceed ings whe re th e animosi ty of the parties towards each other was patently obvious. Notwithstanding that this was not what Ms Clemments ul t imatel y sought, the Commission makes it plain that it wou ld not have granted either of these remedies in any event. In s uch circumstance the Commission turns to consider t he claim for payment of compensation and lost wages, which is th e only avenue able to be left open for consideration and lhe issue put to t he Commission for mediation. It is clear th at at the time of her tennination Ms Clemments was no t asked to explain her absence in the previous week. nor was she given an o pp ortunity to do so . It was also clear th at the e mp loyer relied on other extraneous circ um stances, particularly involving creditors visiting the centre in search of Ms Clcmments. to justify her term ination. Against this. however, we ha ve th e situation th at Ms Clemments cmploymem under th e Jobstart Subsidy had ceased, and that the continuati on of her employment had been to provide, and I quote, 'an ex tra pair of hands' on the visitation program of the National Fam i ly Violence In tervention Program. As it turned out Ms Clemments was not able lo provide that extra pair of hands du ri ng that visitation program. As it also turn ed ou t the in itial visitation program ceased on Fri day 4 February 1994 . In my view, taking all of th e facl5 into consideration, the employer was entitled to 111.ake a decision nm to continue to employ Ms Clemments and that it was entitled to act to tenninate her servi.ces when it did on 7 February 1994. Where th e agency fell down though was by not giving Ms Clemmen1s notice of her tennination. In such circumstances the Commission dete rmines that the Yuddika (A bori ginal and Islander Child Care Agency) is to pay one week's wages in li eu of notice. plus pay fo r Monday. 7 February - in o th er wo rds up to the close of busi ne ss on Monday. 14 Fe bruary 1994. Such payment in lieu of notice may be offset against any wages paid in advance beyond 4 February 1994, and aga inst travelling a ll owances paid in advance in respect of the period be tween Monday 24 and Friday 28 January Q!ill: . Because of the doubt t ha t I have ex tended to Ms Clemments in respect of the fo ll owing week (31 Janual)' to 4 Feb rual)' ) there is to be no absorption of any travelling allowances paid in that period. The Comm.ission so orders.". Da ted this second day of August, 1994. By th e Commission, IL.S.) M.J. CALLEN, Industrial Re gistrar. Appearances: ••· Ms C.D. Clemments, the applicant. appeared on her own behalf. Ms M. Ahkce. wi th her Mr D. Greenwood. lor Yudd ika (Aboriginal and lsiander Ch il d Care Agency). Opera ti ve Date: N/A Dec ision - Rein statement Released: 11 August 1994 26 August, 199 4] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 979 -- 2 of 2 --