Breskvar v Liberal Party of Australia (Queensland Division) [1994] QIRC 143 (1994) 145 QGIG 869

868 Q UEENSLAND GOVERNMENT INDUSTRIAL GAZE TTE [22 April, 1994 22 April, 1994 J QUEENS LAND G OVERNMENT INDUS TRI AL GAZET TE 869 ############################# # ###################### QUEENSLAND INDUSTRIAL RELAT IONS COMM ISS ION Industrial Relations Act 1990 s. 174 - - app li ca ti on for reinstatement Do nna Loui se Bre skvar AND Li be r al Party oi Australi a (Queensland D ivision) (N o. 836 of 199 4) COMMISSIO NE R BLOOMFI ELD 12 Apri l 1994 Re i n sta temen t - Termination of Employment - Dism issal - Redundancv - Reasona ble Notic e - Harshness, Un ju stness and Unfai rness • - Arbitrated Matter - Cons truction of s. 175 Con si der ed Re i ns ta tement Not App r op riate - Compensation Awarded . DEC ISION By way of appl icati on lodged on 12 Janu ary 1994 Mrs Donna Lou i se Bres k va r (the appli ca nt) so u gh t reinstatemen t to her former position of Fi nance D irector w ith the Libe ra l Party of Austra lia (Queensland Div ision) (the emp loy er) . The termination had occurred on 21 December 1993. No is sue was taken as to whe ther the appl icatio n was wi thin or outside the statutory time li mit. Background Th e app licant commenced employment w ith the empl oyer on 25 November 198 5 and occupied various posi tions during th at period ultimately working in a posi tion described as "Finance Di re ctor" . Th e position was a salari ed one and required the appli cant to work the ne ces sary hours to complete her various tas ks and functio ns . .Add itional hours - often qu i te consider ab le - were expected to be w orked at certain times, particularl y aroun d Sta te Conven tions and in the period leading up to elections. The parti es are agreed that on Friday, 1 7 December 1993 at approxi ma tely 4.00 p.m. the employer's Stat e D i rector told the appl icant that the positi on o/ Finance D irector was to become redundant i mmediately and that the applic an t co uld either become red undant or become the "recep ti onist/admin1strat1on ass is tan t " in the new organisation struct ure. The applicant was invit ed to consider her preferen ce over th e week-end. On Monday, 20 December 1993 the applicant request ed the al ternatives to be p ut to her in w r it ing and this was don e dur ing the course of that d ay. The letter spelt out the duties oi the receptionist/administ ra tion assistan t and the prop osed sa lary, wh ich wa s some 40% below that previo us ly bei ng pa id. 1 here was some di scuss i on as to whether the applicant cou ld receive a redundancy package as wel l as accepting the offer ed position. This did no t eventuate on the bas is ot advice ob ta ined from external accountants by the State Di rector and led to a situa tion on Tuesday, 2 1 December w here the appl icant was advi sed that she coul d ei ther accept a redundan cy payment or the offer ed positi on . Th e appli ca nt declined to accep t the offered p osi tion and her se rvi ces were t hus seve red. By way oi coveri ng lett er dated 21 December 1993 th e State Director confir med th e outcome of discussions w hi ch had co mmenced the previous Friday and enclosed a summary oi her redundancy payment wh ich included four weeks in li eu of not ice and ei gh t weeks redundancy payment. Th e Case for the Applicant Mr R. Ste init z, who appeared for the app li cant, put that the term ination was one wh ich should attract the i n te rven ti on oi the Commission on the bas is that it was harsh, unjust and un fa ir. He particularly st ressed that no warn i ngs oi any description had b ee n given to M rs Breskvar about her work performance no r w as she informed, by the State D irector, that he was con templating r est ructuri ng the organisati on and making her position redundant. Mr Stei ni tz highlighted the un fa irness of the emp loyer's act ions in k eep ing i ts intentions sec re t fr om the app li cant. This was demonstrated by the fact that right up un ti l the morni ng of th e an nouncement - that the position was to be made redun dant -- 1 of 3 -- 870 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [22 April, 1994 - the State Director was engaged in written commuriication with the applicant about several working conditions which were raised by her in a memo dated as recently as 13 December. The evidence showed that the applicant had sought to discuss with the State Director his written reply to her memo, given to her on the morning of 17 December at around 11.30 a.m., at which time she was asked to meet him at 4.00 p.m. ,A.t the appointed hour the applicant was informed of the decision to make her position redundant. Further, Mr Steinitz attempted to infer that a letter of complaint, about the organisational structure and management from a disgruntled party member received around 10 December. had led to the decision to restructure which ultimately led to the applicant's termination. Mr Steinitz also attempted to draw certairi inferences from statements in the applicant's affidavit which referred to the inner workings of the employer and concerns which the applicant had about the ethics of such workings. None of these alleged concerns were claimed to be in any way related to the decision to terminate; rather, both the applicant and Mr Stein1tz attempted to rely on them as a means of discrediting the employer's overall conduct, which (it was stated) was typified in the circumstances surrounding her termination. Although, in my view, none oi this material had any relevance whatsoever to the termination I mention it because of the nature of the claims, the way that thev were brought to public attention, and the affect that their use in this way has had on my overall decision in the matter. Mr Steinitz put to the Commission that it should intervene in the termination because of the procedural unfairness attached to the termination. This unfairness was stated to arise because of the secretiveness of the actions of the State Director in determining to restructure the organisation; not cfocuss1ng the proposed restructuring with the applicant; advertising the restructured vacancy (without giving the applicant a chance to apply); selecting the successful person and then informing the applicant (in these proceedings) ot her termination. In concluding, tvh Steinitz referred the Commission to several authorities which he contended supported his submission that the Commission should intervene and award appropriate compensation. It should be noted that in making this submission Mr Steinitz indicated that it wa, common ground between the applicant and the employer that it would be impossible to recreate a proper employer/employee relationship having regard to the nature ot the employer's activities. In such circumstances, he argued, the only alternative available to the Commission was to award the maximum compensation allowable under the Act. The Case for the Employer Mr R. Livingstone, who appeared for the employer, argued at the outset of proceedings that the Commission should - pursuant to section 68(1 )(b) -:-- dismiss the matter or refrain from hParing on the basis that 11 was not In the public interest for iurthpr proceedings to be held. In making this submission Mr Livingstone drew to the Commission's attention certain media articles which had appeared in early Janua,·y ;rnd !ate March 1994 which dealt, ir, considerable detail, with thP 1"ues which rwtween the applicant and the employer. It was submitted the second article, which contained extensive (and damaging) e>scerpt, from the applicant's aftidavit, could only have been providPd to the media bv the applicant and that its provision constituted vexatious behaviour in respc>ct of this matter. Such vexatious behaviour, was put, was the real reason behind the applicat:on and the Commission was urged to reject it at the outset. In declining Mr Livingstone's application the Commiss1or1 indicated that the media ar'icles referred to were not evidence and did not represent the totality of the applicant's claim as outlinPd in her afridavit the Commission did indicate to the appl:cant and Mr Stein1tz 1t would .riot allow issues which had noth;11g to do \\ith the termination to be traversed in the proceedings. 1 he case \vas to be one oi rev,ew oi the circumstances of the applicant's termination, riot one relatf:'d to the peripheral grnngs oci within the employer's organisation and structure. The employer"s evidence. led by the State Director at the time, was that a decision had been taken shortlv after the ~ederai election in March 1993 to restructure the ·operation of the secretariat to enhance performance and efiiciencv thereby enabling the employer to best meet the new challenges which faced it. There was no timetable attached to the restructure Evidence was given as to the restructuring which occurred between that time and 17 December - the date on which the applicant was informed that her position was redundant. These changes appeared to be gradual and subtle, and their ultimate form and effect appeared to rest in the mind of the State Director, with the timing and extent of the changes left to him. The proposed changes were apparently not discussed with any staff - and definitely not with the applicant. Insofar as they affected the applicant, the State Director gave evidence that he reached a decision "around early December" that the applicant's position did not fit into the new state secretariat restructure, which he had determined, with most of her duties to be performed by a new position of "accountant" with qualifications and duties taking that role to a higher level than the previous Finance Director's position. The State Director indicated that in his view the applicant could not fulfil the new role and resolved to advertise it (also in early December) without informing the applicant. In a very short space of time a person was selected. After this person was selected he decided to inform the applicant (in these proceedings) that her position had become redundant. Some of the impetus for these developments, and the quick t1meframe of events, could be attributable to the fact that the State Director was to conclude his employment on Friday, 24 December 1 99 3. When questioned as to why he had not informed the applicant before 17 December that her position was to be made redundant and why he had not given her an opportunity to apply ior the new position, the State Director informed the Commission that the new position required new skills, with important responsibilities, and that the applicant did not possess such qualities. When further questioned as to why no notice of the intended change had been given to the applicant he informed the Commission that It was better to make the decision and do things quickly rather than leave them hanging. He also indicated that it was necessary to have a replacement in place because there was a need to have the financial functions being undertaken and that there was a concern that if the applicant had been alerted to the employer's intentions some difficulties might have arisen. In his submissions Mr Livingstone highlighted that in matters under the industrial Relations Act 1990 the onus fell on an applicant in proceedings under section 174 to prove to the satistaction of the Commission that the circumstances surrounding termination were sufficiently harsh, unjust or unfair for the Commission to intervene. He submitted that the applicant and Mr Ste1nit7 had failed to do this. Mr Livingstone also highlighted that the employer had offr,red the applicant a new position and that the offer of this position meant that any subsequent termination as a result of its non-acceptance was not unfair. In particular, he highlighted the unusual circumstances confronting a political partv as it concerned termination or potential tPrminat1on of an employee and sought to draw comparisons between this matter and Steinitz's case (1981) 107 QGIG 163 and loty's case (1971) 71 NSWAR 95 where it was found that different approaches might be required in special circurnstances --- the tv-/o ca~es in question !rivoivlng terminations by tradP unions. ~1nally, Mr Liv1'.lgstone referred to the involvement of the n1edia in its report,ng of these proceedings and submitted that the cfo, ;sion of the applicant to discuss the case with the media on two !21 occasions - including the distribution of her affidavit to various media outlets - had made the application vexatious with the applicant hc1ving gone out of her way "to get square". The Comm,ss,ori \\dS asked to re 1ect the claim of naivety on the applicant's part as to what the outcome oi the involvement of the media in the case might be. It was said that less intelligent persons than the applicant have known not to go to the media when mounting reinstatement cases. Mr Livingstone also took issue with two particular parts of her affidavit which, it was submitted, were not relevant to the case, had been inserted vexatiouslv, and had been seized upon bv the media to the detriment of the employer On the basis that the application was clearly vexatious. it was submitted, the employer sought costs to cover its defence of the matter. Decision Despite the attempts by ,'v1r Steinitz to draw inferences from other events ~-- some contemporarv w,th the termination and ot~ers long since passed -- there Is no evidence which could lead the Comrrnss,on to anv conclusion other than that the employer did make a dec:s1on to rnake the applicants position redundant in 22 April, 1994 J QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 871 early December; that it advertised the newly created position; that it selected a person to fill that position and, after such selection, informed the applicant that her position was no longer available. What is complained of is that this constituted harsh, unfair or unjust treatment of the applicant by her employer. Arising out ot this treatment relief under s. 174 and s. 175 was sought. The construction of s. 174 and s. 175 is not without its difficulties. (See Madhu Achal v Electrolux Pty. Ltd. (1993) 143 QGIG 144 at 145; See David Jones !Australia) Pty. Limited v Barbara Ann Mason (7993) 144 QGIG 378). Read literally s. 175(1) requires that the Commission make a decision that a dismissed employee should be reinstated or re- employed before the options outlined in that subsection are canvassed. \!Vhat is not stated is how the Commission might arrive at such a decision. In this case the Commission has been informed by the applicant's advocate that it was common ground that it would be impossible to recreate a proper employer/employee relat1onsh1p. Such a submission, other factors ignored, is a dangerous on_e In that It immediately brings into question the whole nature ot the proceedings. By the way that they were conducted It could be viewed that the applicant's sole obJective was to seek compensation in respect of her alleged harsh, unjust or unta1r termination. The legislation does not permit such a remedy. (See in Re. David Jones v /'v1ason and Re. Achal v Electrolux). Before the Commission might turn its mind to the issue of compensation it must reach a contemporaneous formation of an opinion that the dismissed employee should be reinstated or re- employed and an opinion that each of an order for reinstatement and an order for re-employment Is inappropriate (See Achal v Electrolux). It is as a direct result of the construction of the secf1on that the Commission has some difficulties in approaching this matter. For reasons which will become apparent the Commission would not have reached a decision that the applicant be reinstated or re-employed. This is, firstly, because of the applicant's actions subsequent to her termination to actively encourage the involvement of the media in the pursuit of her claim - including the apparent embellishment of her circumstances by the inclusion of issues which were peripheral to her termination, but potentially damaging to the employer, in her affidavit which was deliberat_ely distributed to the media. (See rT,y decision In Phyllis /'v1cDutt v Clayfield College 143 QGIG 58) Secondly, the employment relationship which is needed within an establishment of the nature of the employer's undertaking requires a special iorm. The nature of the conduct of the case -- where both the applicant and her adviser thought that it was a legitimate tactic to use the media to put pressure on the employer to achieve a negotiated settlement - and the obvious demeanour of the respective litigants towards each other during the proceedings convinces the Commission that, irrespective ot the submissions which were put, it would be impossible to recreate the necessary employer/employc>e relationship. Notwithstanding the fact that the Commission would have determined not to reinstate or re-employ the applicant, the Commission nonetheless feels that the applicant was harshly, unjustly or unfairly dealt with. It is this aspect which gives the Commission some concern about the construction of s. 175(1 ). Overall the Commission has determined to adopt a liberal construction of the section and its intent. It is quite apparent that a practice has developed whereby the reinstatement or re- employment jurisdiction will be enlivened where the Commission has determined a view that, in all ot the circumstances, "there are circumstances demonstrating that the emplover has abused the right to dismiss or the dismissal was harsh, unconscionable, unfair or some like expression _., (See McKenzie J. rn Re. David Jones v Mason). The Commission has, on balance, come to the conclusion that the employer did terminate the applicant in a_ manner which was harsh, unjust or unfair. This Is because ot two elements which I believe, in this case, are required to be considered conJ01ntly. The first is that the employer's actions in advertising the new position behind the applicant's back; selecting someone to fill that new position and only advising the applicant of the new position and that someone else had been engaged to fill 1t, as a fait accompli, constitutes unjust and unfair behaviour. The second element is that the employer has failed to provide, in my view, "reasonable notice" to Mrs Breskvar. I must comment that in the overall circumstances of this case the second element has only been considered as a result of the first. Had the earlier unfairness not occurred the amount of notice given, versus what I consider reasonable, would not have caused me to find harshness, unjustness and unreasonableness by itself. The second element would have been marginal w·11hout the first Having formed the view that, in all of the_ circumstances, the employer did act harshly, unjustly or untairly towards the applicant, and, having earlier decided that reinstatement or re- employment is not desirable, the Commission turns its mind to whether the available remedies under s. 175(1) should be availed of. It will be readily apparent that the section provides a discretion to the Commission. The simple fact that an employee has been dismissed in circumstances which are harsh, unjust or unfair does not, of itself, require the Commission to provide one of the forms of relief contemplated in s. 175(1 ). This discretionary element further compounds the diff1culfies which the Commission has had in approaching this matter. In earlier indicating that it would not order reinstatement or re-employment in respect of the applicant it could be said that the Commission cannot exercise its discretion to consider the issue ot compensation. However, such a view over simplifies the construction of the section and its apparent intent. The Commission has also indicated that it proposes to take a I iberal construction of the section and how it has been appi ied in practice which means that the Commission will consider the termination in a way which has become the traditional torm ot assessment within this Tribunal. The practical application of the section requires that the Commission consider the matters in the following order:- • Whether the employer has acted harshly, unjustly or unfairly towards the dismissed employee. • Whether the Commission should exercise a discretion to:- • reinstate the employee; or • order re-employment of the employee in some other position, or • determine an appropriate amount of compensation. Following this trdditiondl approach the Commission would a.ns\ver:- • The employer did act harshly, unjustly or unfairly. • The Commission will - albeit with some reluctance - exercise a discretion in favour of the employee. • The Comrrnssion will not order reinstatement. • The Commission will not order re-employment to some other position. • The Commission will determine an appropriate amount of compensation. The employer paid four weeks in lieu of notice and eight weeks redundancy pay to thP applicant_ upon her termination. Coincidentally, this Is an amount applicable to an employee covered by an award of this Commission who is made redundant. (See Termination Change and Redundancy DecisJOn 125 QGIG 1119-1121 as amended by 125 QGIG 1377 and 126 QGIG 188) Mr Steinitz has argued for the maximum compensation available under the Act, viz., marginally in excess of eight month's pay. In advancing this proposition he argued that the four week's notice must be excluded from any calculation of ··compensat1on'' because notice was an entitlement of the applicant and compensation is something quite different. Having regard to the overall construction of the provision I do not think that this is a valid argument. As with the earlier parts of the section the awarding of compensation - and the quantum - is discretionary. There are no clear guidelines established within this Commission nor within -- 2 of 3 -- 872 QUEENSLAND GOVERNMENT lNDUSTRIAL GAZETTE other tribun als and the amount oi compensation awarded w i ll largely be a creature of the in div idual c ase and the ci rcumstances of th at case . Th ere have b een some attempts to cr ea te guid el ines ( see Chenery v Klemzig Nvr sing Home (1988) 55 SAIR 544) bu t thei r appli ca1ion sti ll cal ls for the use of di sc re ti on b ased upon the ci rcumstances of each case . The ap pli ca n t was a sala ried empl oy ee w ho had b ee n employed for ma rginally in excess of ei ght years. Her duti es, although in vo lvi ng a certa in ty pe of specialist activity associated w ith the nature of the employer's activi ty were no nethel ess essen ti al ly cleri ca l in nature. H ad she been covered by the Clerical Employees Awa rd - State her entitlements to r ed undancy pay (includi ng notice) wou ld have been preci se ly tha t w hich was paid to her by th e employer. As a salaried employee she i s entitl ed to "r easonable notice" at common law. In as sessing wha t con st itut es reasonable n otic e the Commi ssion is entitled to con si der wha t sim ilar employees of similar age, background, and experience wo uld be en tit l ed to re ce ive if th ei r em ploymen t was to be termi nated in circumstances where suc h employee b ecame redundant b ec ause of a r es tructuring of their employer' s w orkpl ace . In al l of the ci rcumstances oi th is case 1he Commi ssi on determi nes th at reasonable no ti ce to the appli ca nt, M rs Breskva r, should be l ou r (4) months in total. This would i nvol ve an amount of $ 11 ,883.33 . The applicant havi ng already b een pa id an amou nt oi $8,226.96 the Commi ssi on determines that an additional am ou nt of $3,6 56.3 7 be pa id lo the applicant by the employer. Such amount is to be paid by Friday 6 May 1994. The Commission makes no order wi th respect to pa yment for lost wages because oi i ts find ing that th e termination was one created th rou gh redun da ncy. It was the ci rcumstan ces surrounding the dete rm in at ion of th e redundancy an d the method of i ts c ommu nication which was harsh, unj us t or un fa ir and caused the Com mi ss ion to in terven e. Having regard to my decision the employer's claim io r co sts is r eiu sed. Al though no claim was made by the applican t for co sts any such applicatio n, i f made, wou ld al so have b een reiused. I order accordingly. A. L. BLOOMFI EL D, Commi ss ioner Appearances:- Mr R. Ste ini tz , w i!h him Mrs D. Breskvar, the applicant. Mr R. l.ivmgstone for the Liberal Par ty of Australia /Quee ns land Division). Operat iv e Date: NIA D ec ision - Rei ns tate me nt Re l eased : 12 Apr il 199 4 #################### ########## ###################### l22 April, I 994 22 April, 1994] Q UEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 873 -- 3 of 3 --