Cases: severance pay; work performance; salary cap; constructive dismissal

Cases

Cases: severance pay; work performance; salary cap; constructive dismissal

Four dismissal cases (two from Queensland and two from NSW) illustrate: some insights into acceptable alternative employment; alleged work performance issues lacked weight; the salary cap and superannuation question; and no constructive dismissal when an employee is prime mover in termination.

WantToReadMore

Get unlimited access to all of our content.


Four dismissal cases (two from Queensland and two from NSW) illustrate: some insights into acceptable alternative employment; alleged work performance issues lacked weight; the salary cap and superannuation question; and no constructive dismissal when an employee is prime mover in termination.

Acceptable alternative employment - considerations

The Qld IRC considered applications by a number of employees for severance pay and considered in each case whether each employee was offered acceptable alternative employment. If an employee is offered acceptable alternative employment then severance pay is not due.

Deputy President Swan noted:

'Relying upon the principles set out in The Australian Chamber of Manufacturers v Derole Nominees Pty Ltd Print J4414 (12 September 1990) the Full Bench of the Australian Industrial Relations Commission stated:

“What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis.

Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay the exemption provision would be without practical effect.

Yet, the use of the qualification ‘acceptable’ is a clear indication that it is not any employment which complies but that which meets the relevant standard.

In our opinion there are obvious elements of such a standard including the work being of like nature; the location being not unreasonably distant; the pay arrangements complying with award requirements. There will probably be others.”.

…in Mr H’s situation, I find that the employer had effectively found “acceptable alternative employment”. ..., Mr H obtained employment immediately after he finished his employment with the applicant and there was no subsequent loss of money.

… In the case of Ms S, the position offered at the Chermside store (even with the added component of “petrol money”) was never a realistic option. The distance from her place of residence was a sufficient obstruction to her accepting this position.

… Ms D was offered “acceptable alternative employment” and declined the offer …'

Queensland Pine Company Pty Ltd (No. B1774 of 2004) DEPUTY PRESIDENT SWAN 9 March 2005 DECISION - 09/

Related
Redundancy and suitable alternative employment

Work performance issues lacked weight

Work performance issues argued by the employer were of insufficient weight to justify dismissal and so compensation was awarded.

The applicant was a licensed real estate agent.

Commissioner Ashbury of the Qld IRC concluded:

'… [re] issues with the applicant’s work performance ... no evidence that Mr M raised any of these issues with the applicant at the time he believed they had arisen. ...

The evidence establishes a degree of procedural unfairness with respect to the respondent’s treatment of the applicant. I am unable to be satisfied that the applicant was told of the reasons for her dismissal in a manner which would have enabled her to defend herself. ….

On Mr A’s evidence, he simply asked the applicant whether she was planning to set up her own agency, and in the face of an ambiguous answer, told her he was giving her four week’s notice.

… Further, I do not think that it was reasonable for the respondent to have dismissed the applicant on the basis that she blinked her eyes and said that she might set up her own agency, especially when she had just been persistently questioned about her intentions in this regard, and had not been warned that her job was in jeopardy ….'

Application for reinstatement: Isabel Tamayo AND David James Arnold t/as Elite Real Estate (B1115 of 2004) - Ashbury C - 02/

Related
Insufficient time allowed to improve performance

Salary cap and super up for consideration

A Full Bench of the NSW IRC has granted leave to appeal on the basis that the issue of superannuation's impact on the salary cap that bars non-award employees from unfair dismissal applications is still a debatable matter.

The Full Bench concluded:

' ...that leaves the more difficult question as to whether leave to appeal should be granted with respect to what has been loosely described in the proceedings as the "remuneration issue" …..
We have come to the view that we shall grant leave to appeal in that respect but wish to emphasise in doing so that our considerations in that respect are finely balanced and it is a decision we have reached with some degree of difficulty. ...

However, on balance we have determined that leave to appeal should be granted because we consider that the issues raised by the decision in Austeck have real implications for the present proceedings and in any event, raise significant issues as to jurisdiction of the Commission to hear applications under Part 6 of ch 2 of the Act in the context of superannuation schemes, (particularly in relation to the timing of any assessment of the superannuation benefit vis-à-vis the jurisdictional restraints).

... We order, therefore, that leave to appeal be granted in relation to the appeal so far as it bears upon the remuneration question. Leave to appeal otherwise is refused.'

New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (on behalf of Geoffrey Taylor) and MM Kembla Products [2005] NSWIRComm 64 - Walton J Vice-President; Grayson DP; McLeay C - 25/02/05

 
Related
Austeck - Unfair dismissal salary cap assessed at time of dismissal

Commission payments excluded from 'remuneration' for unfair dismissal purposes

‘Remuneration ' and private usage of car

No constructive dismissal

There was no act or omission by the employer that could be considered an act of constructive dismissal.

Deputy President Harrison of the NSW IRC concluded:

' … [the employer had said:} "I can't tell you right now, you better go ahead and do the other things you want to do this week and I will get back to you about your shifts for next week."

.. [the applicant replied:] "That's not good enough. I want you to give me my Separation Certificate now."

… [the employer] deposed that at no time had he intended to terminate Mr S's employment.
… [the applicant's] failure to pursue any alternative work at all is consistent with an intention to end his employment with the respondent….'

Sanson v Port Macquarie Cinemas T/As Ritz Twin Cinema [2005] NSWIRComm 38 - Harrison DP - 25/02/05  

Related
Constructive dismissal must be considered case-by-case

 

Post details