Ledge Point Charters Pty Ltd T/A Trimview Building Industries

On the 9 February 1998, Cheryl Dawn Miskiewicz (the applicant) applied to the Commission for an order pursuant to section 29(1)(b)(i) and (ii) of the Industrial Relations Act, 1979 (the Act). The grounds on which the application was made are that the applicant alleged that at the termination of an employment relationship with Ledge Point Charters Pty Ltd trading as Trimview Building Industries (the respondent), that the employment contract was brought to a closure on terms which were harsh, unfair or unreasonable. In addition, at the time of termination, outstanding benefits due to her.

This is a case which the respondent denies the termination was harsh, unfair or unreasonable. It was brought about in circumstances which were forced upon the company by its financial position. As a result of an assessment of the financial position, there was a restructure of the company and the applicant's position no longer was required in the form that it existed before.

As I understand it an employer is entitled to restructure is operations. It is an action which, if bona fide, should not be disturbed by the Commission. That a restructure may bring to the end a contract of employment does not necessarily give rise to a finding of harsh, unfair or unreasonable dismissal.

So far as the history of the employment contract of the applicant is relevant, she was first employed as a bookkeeper. She undertook bookkeeping duties, mainly by use of a computer. Other duties included banking, postal duties, mail opening and sorting. There is some dispute between the parties whether she did personal work for the then General Managing Director, Colin Bramley, but it is safe to say that she did the general office work for the respondent. In the first instance, the relationship was part time described variously during these proceedings as casual and part time. That changed in October 1996 and the position became full time. The relationship continued until on or about the 3 February 1998 when it came to a close in circumstances of controversy between the parties.

What the applicant says is that she rang Ms Delma Davies who was a consultant business manager at that time for the respondent. Ms Davies was told the applicant was going to see a doctor on the following day concerning a problem with her toe. The applicant saw the doctor on the following day. The doctor decided that a procedure was necessary to remove her toenail. The applicant colourfully described the procedure on a number of occasions during her evidence as `having [her] toenail ripped off'. The result was she was not available for work. She says she has a medical certificate to cover her absence between the 2-5 February 1998 (Exhibit F4). In the circumstances, I do not need to make a finding about whether the absence was bona fide or not. The medical certificates show she obviously needed a procedure on her foot, which she had. As it turns out though, that event is not of major moment to what is before the Commission. What needs to be focussed upon is why was there a need to change the way the business operated.

The Commission has heard evidence from Ms Davies about the need to restructure. Her evidence was authoritative, clear and concise. I accept her evidence as evidence of a person who is qualified in the area and has a detailed, if not intimate knowledge about the operations of the respondent. Ms Davies told the Commission about the dire financial circumstances of the respondent; how before she was involved advice had been taken from an insolvency manager about how the respondent ought be managed. There were grave doubts about the financial viability of the respondent which was one of the reasons for her involvement. She was engaged to analyse the business operations and advise whether the respondent could be saved for further trading.

After her initial examination, she was concerned about the way that the insolvency question was being tackled and obtained a second opinion. As a result, she set about producing changes to the management and the administration of the respondent company, including such things as the use of contractors or consultants, re-allocation of work amongst various managers and a restructure of the essential administrative functions so that the emphasis shifted to purchasing and production. Of relevance here Ms Davies paid attention to the duties performed in the position occupied by the applicant. An analysis of the way the duties were performed, together with how those duties would be recast in the new company structure was performed (Exhibit F5).

The analysis also described a new structure and shows how the work has been distributed through the operation and what savings have been made in doing so. It is determined by Ms Davies that as a result of the restructuring there has been a total saving on annual operations of approximately $149,000.

What the Commission needs to examine in cases like this is whether when there has been a redundancy there has been a change so that the position is no longer required to be done by the employer. It is not the role of this Commission to be a surrogate manager and place itself in the position of the respondent when it is making an analysis of this kind and offer a conclusion that it would have done something different. That is not the role of the Commission at all. An employer is entitled to run its business in such manner as it considers appropriate and this Commission has no power to intervene unless in doing so the employer acts in a harsh, unreasonable or unfair manner.

The Commission is to apply the authorities established in Undercliff Nursing Home -v- Federated Miscellaneous Workers Union of Australia (1985) 65 WAIG 385. That case adopts the basic premise of industrial law concerning unfair dismissal and that is that there is to be a `fair go all round'.

That test has been approved by the Industrial Appeal Court in the Shire of Esperance -v- Mouritz (1991) 71 WAIG 891 where the appeal court confirmed the rule in Undercliffe (ibid). It is important in making its assessment the Commission looks at all of the surrounding circumstances, not just some of them, that is it would be wrong for the Commission to conclude that a single error by an employer in effecting a dismissal such as failure to adopt proper procedure would bring the dismissal into question generally. What the Commission is required to do is discover all of the circumstances and balance them out. It must look at the position not only from the point of view of the applicant but the point of view of the employer as well.

Applying those rules to this case, I have heard from the applicant and one witness on behalf of the respondent. The Commission is to make assessments of credibility of the witnesses. When there is corroborating evidence that is less a onerous task than when both of the witnesses for the opposing sides have given evidence which is directly in conflict, as the case is here.

I have had the opportunity of observing the witnesses in the witness box and I say of the applicant, I am sure she tried to give evidence to the Commission to the best of her memory and ability, but it is clear that there was conflict between her evidence in chief and her responses to Mr Friedman, of Counsel, in cross examination. Some of those differences do not really affect the outcome of the case other than that they give me some measures upon which I can assess the credibility of the witness insofar as her memory is concerned.

I have some doubts about whether her memory about the relevant facts is particularly accurate. I have some doubts about her version of the events when she rang Ms Davies. I have those doubts because when she first gave her evidence concerning her luncheon meeting with Ms Davies, she was quite dogmatic about what Ms Davies had said to her, but under cross examination from Mr Friedman she admitted that Ms Davies took quite a different approach to the meeting. It may well be that her memory of the telephone conversation is flawed. I do not know the reason for it being flawed but there is a considerable difference between the applicant and Ms Davies about what passed between them during that conversation.

For the purposes of determining this case I do not need to make a finding about that difference, but so there is no doubt as to my view of the matter I had the opportunity of examining the diary of Ms Davies where I was able to observe notes which she says were made contemporaneously to the conversation and before she made phone calls to other senior members of the respondent on that same evening. Those notes do not differ in great degree from her viva voce evidence and I am inclined to the view that they support the proposition that Ms Davies' recollection of the events is likely to be more correct than that of the applicant.

What is at issue here is that there has been a restructure of the nature I have described previously. I think in that respect the evidence of Ms Davies is to be accepted above that offered by the applicant, purely on the basis that the applicant was not in the position to know these things other than that she did say she knew the respondent was in trouble and she knew that things were going badly. She knew she was being asked to do strange things with cheques by Mr Bramley and she said she did them because the boss (Bramley) told her to. She knew that things were not right with the respondent so it is not surprising therefore that when Ms Davies, who is skilled in these areas, gives evidence that the company was in a severe financial position, there were difficulties with the way the director was running the operation, there were difficulties with cash flow, the company was on the brink of financial disaster and that evidence should be accepted and I do.

The next step is what was done about it? What was done about it was a restructure of the operation. I accept the evidence that such a restructure has taken place. I accept the evidence that the duties previously performed by the applicant are no longer performed by one person in the operation. They are spread across a number of different areas in the firm. That is often how restructuring takes place. In fact it is indicative of a restructured company. In those circumstances it is not open to find that there has been harshness or unfairness in the way the applicant has been treated in this case and I so find, and Orders will issue concerning that. I will dismiss the application where it concerns unfair dismissal.

As to the applicant's claim for an alleged underpayment of wages, she has given no evidence at all to support the proposition that she was to be paid the sum of $13.16 per hour. The more likely rate of pay on the face of the evidence before the Commission (Exhibit F1) was that the applicant was paid $500 per week. If there was an arrangement before she became a part time worker that she was to be paid $13.16 an hour, it was never put into operation. On the face of the documentation over a period of some five months, she received $500 per week. That can be said to be her contract. I cannot see that she was entitled to any other money other than that which she was paid. It was conceded to her that she may have been underpaid a sum of $148 but that was made good to her as part of her final payment.

The respondent says that there has been an error made by the applicant in the conduct of her work and seeks reimbursement from her in the sum of $95.92. It has not put a counterclaim to the Commission. I do not think I have jurisdiction to award it in any case, even if I were to inquire into it, and I do not intend to do so.

In the circumstances the matter will be bought to a close by orders for dismissal. I thank you all and the matter is now concluded.

Appearances: The applicant appeared in person on her own behalf.

Mr N Friedman, of Counsel, appeared on behalf of the respondent.