C2003/1455, Transcript of Proceedings [2003] AIRCTrans 1229 (7 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2003/1455

AUSTRALIAN SERVICES UNION

and

MAERSK AUSTRALIA PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re termination of
employment - sick leave deduction

SYDNEY

4.03 PM, THURSDAY, 20 MARCH 2003

PN1

THE COMMISSIONER: Appearances, please?

PN2

MS L. HUTCHINS: I appear for the Australian Services Union.

PN3

MR E. CHEUNG: I appear for Maersk Australia Proprietary Limited.

PN4

MR J. KIER: I appear for Maersk Australia.

PN5

THE COMMISSIONER: Thank you. Well, the matter before the Commission is an application filed pursuant to section 99 of the Workplace Relations Act 1996 by the Australian Municipal, Administrative, Clerical and Services Union otherwise known as the ASU. It notified the Industrial Registrar of an alleged industrial dispute between the union and the employer, Maersk Australia Proprietary Limited, and the matter is said to concern termination of employment, sick leave deduction. Ms Hutchins, it is your notification and I guess I am meant to read between the lines but I'm not going to guess on anything. You tell me what this dispute is all about.

PN6

MS HUTCHINS: As way of background, Karen Garard was employed by Maersk Australia from July 1998 to July 2002. During employment in February of 1999 Karen fell seriously ill and informed Maersk Australia that she would need to take some substantial time off. Now, according to the Maersk Australia staff manual and also the Shipping Officers' Award, because she was in her first year of employment she was entitled to 5 days paid sick leave and I have copies of that if you require them.

PN7

Understanding that she was not entitled to anything beyond the 5 days and she was informed she would need leave beyond that, Ms Garard requested 2 weeks annual leave as she was entitled to or had accumulated to that period of time. Her manager at the time, a Mr Jeff Gosciniak, having gone to Ms Garard's home and established the validity of her illness, informed her that Maersk would reimburse her 2 weeks annual leave and actually pay her an additional 4 weeks sick leave. I have copies of Karen's pay slip at the time that actually state that it is paid as sick leave and not salary.

PN8

THE COMMISSIONER: You are getting a bit ahead of me. She commenced employment July '98. February '99 she commenced a substantial period of time off for sick leave - of sick leave.

PN9

MS HUTCHINS: Yes.

PN10

THE COMMISSIONER: Had an entitlement in her first year of 5 days of sick leave, was granted 2 weeks additional time off as annual leave which was then somehow credited back to her.

PN11

MS HUTCHINS: Yes. She requested the 2 weeks annual leave understanding she would not be paid for that period. Her manager at the time went to her home and established that she was seriously ill, said to her that they would reimburse her the annual leave that she had requested and then pay her 4 weeks sick leave. As I said, I have pay slips that actually state that the payment for that period was paid as sick leave. There is no indication on the pay slips that this was any additional payment or any special payment as such.

PN12

Now, during her period of leave which totalled 3 months then she returned to work, her manager repeatedly met with her again to find out or establish the validity of her illness. So in total when she returned to work Maersk Australia had paid her 20 days sick leave in addition to the 5 days that she was entitled to under the staff manual in the Shipping Officers' Award. At no time during that period was she informed that this was a payment anything other than a gesture of kindness on the part of Maersk Australia.

PN13

No further mention - as I said, during her remainder of employment with Maersk was it mentioned and from '99 to 2002 she had used her sick leave entitlement as she saw it, the 10 days, for subsequent employment, re-user employment. During this time Maersk Australia paid that sick leave and she wasn't informed again that according to them she was in deficit of sick leave.

PN14

THE COMMISSIONER: Sorry, what period are we talking about now?

PN15

MS HUTCHINS: Between '99 and 2002. I think Maersk has document that state she took about 15 or so, maybe beyond that, days sick leave after that. In July of 2002 Ms Garard resigned from Maersk Australia and was anticipating a termination pay to include the 44.5 days annual leave that she had accumulated throughout her employment. In July 2002 on the 26th for the first time Ms Garard was informed by Maersk Australia that they wished to actually recover the remaining amount of sick leave as they saw it totalling 14.4 days which was a cost to Ms Garard of gross $2375.77. I also have copies of the sheet indicating from Maersk Australia that deduction if you need to see it.

PN16

At this time Ms Garard informed Maersk that she disagreed with their deduction and she wasn't aware that she actually was in deficit of any amount of sick leave. This came as a shock to her. Beyond that I have met with representatives of Maersk Australia to see if there were any documents that they had to support their claim that Karen was aware that she was in deficit throughout the period of employment and also to obviously seek agreement for the payment of that 14.5 days.

PN17

The problem is that Maersk Australia didn't give Ms Garard the option to take the leave as unpaid, she saw it as a gesture of kindness and she was grateful for that. She wasn't informed either in writing or verbally that she would need to pay them back for the amount at the time and if it had been their intention to recover the sick leave there were options for them to do it throughout the remainder of employment, for example not paying subsequent sick leave between '99 and 2002.

PN18

Today I seek from yourself, Commissioner, a recommendation that Maersk Australia repay the 14.5 days deducted from Ms Garard's termination pay on the basis that their intention to recover the money from Ms Garard wasn't made during her 4 years of employment with Maersk. We also have commitment from both the ASU and Maersk Australia to adhere to the recommendation today, be it for or against us. Thank you, Commissioner.

PN19

THE COMMISSIONER: Did you say you have - you said you had documents supporting the actual deductions or payment of ordinary pay rather than sick leave, but do you have anything that supports your contention that the 4 weeks agreed to by Ms Garard's former supervisor was an ex gratia payment?

PN20

MS HUTCHINS: There's nothing that states it was an ex gratia payment. As I said, the pay slips at the time indicate it as ordinary sick leave payments. There's no notification that this is payment prior to accumulation or that this is any type of special payment.

PN21

THE COMMISSIONER: So the additional 4 weeks of pay from which the deduction was made on termination was shown up in the pay slips as sick leave payments?

PN22

MS HUTCHINS: Yes.

PN23

THE COMMISSIONER: You have documentation supporting that?

PN24

MS HUTCHINS: Yes.

PN25

THE COMMISSIONER: Mr Cheung, what is the company's version of the events that have led you to be here today?

PN26

MR CHEUNG: Sir, we have a little bit different story than what we just heard. I have all the evidence in front of me as what the company have done and what have paid her. First of all, she joined us in 1998. She took one day's sick leave and in 1998, she became very ill, and from 24 January onwards, we have been continually paying her sick leave. During those periods - - -

PN27

THE COMMISSIONER: That is from January 1999?

PN28

MR CHEUNG: '99.

PN29

THE COMMISSIONER: From what period of time did you continue to pay sick leave?

PN30

MR CHEUNG: To her employment. e have continued paying her sick leave when she asked for sick leave, except 10 days from 11 March to 24 March, I note that here is no paid leave.

PN31

THE COMMISSIONER: Sorry, I don't understand, what date are you talking about now, what is the 10 days?

PN32

MR CHEUNG: The 10 days was during her real sick in the beginning of 1999.

PN33

THE COMMISSIONER: So from January 1999, you paid her 10 days of sick leave.

PN34

MR CHEUNG: We have not paid the 10 days sick leave, instead, we don't pay her at all for 10 days - don't pay leave.

PN35

THE COMMISSIONER: Yes.

PN36

MR CHEUNG: The situation was the company was very considerate at that time because we felt a new employee became so sick and we do discuss with the then chief executive ..... our duty to look after the employee, even though we did not tell her that we would take it back, but assuming her continuation of employment, those overpayments should automatically offset as time comes, which proven that is the case, okay.

PN37

THE COMMISSIONER: Are you saying the company expected that over a period of time of further service that she would effectively cut out that overpayment?

PN38

MR CHEUNG: Exactly.

PN39

THE COMMISSIONER: What was the balance of that overpayment?

PN40

MR CHEUNG: It was 14.5 days.

PN41

THE COMMISSIONER: Yes, please go ahead.

PN42

MR CHEUNG: Sir, the other point I try to raise here is at that time we very lenient towards her ability to come back to work. We even give her time off whenever is required. In one stage, she come in a couple of hours a day, she can leave any time when she felt not good to continue working.

PN43

THE COMMISSIONER: Was that time off with pay?

PN44

MR CHEUNG: With pay, all the time off with pay. Either we call them "sick pay" or "normal pay" is we pay.

PN45

THE COMMISSIONER: This was after she returned to work, after that long illness?

PN46

MR CHEUNG: Yes, after the long illness we change her work in a casual manners.

PN47

THE COMMISSIONER: Yes.

PN48

MR CHEUNG: It is not a full-time work for her, but however its continue paying.

PN49

THE COMMISSIONER: Yes, so you were paying her full days for the days she attended, or were you paying her as if she was a full-time employee?

PN50

MR CHEUNG: Well, we paid her as - when she come back to work is classified as a normal working day.

PN51

THE COMMISSIONER: Yes.

PN52

MR CHEUNG: If she not come back for part-time, we pay for the time she worked. So during - after become illness, she come back to work as part-time as well, to my memory.

PN53

THE COMMISSIONER: So you paid her for the hours that she worked?

PN54

MR CHEUNG: Yes.

PN55

THE COMMISSIONER: Right.

PN56

MR CHEUNG: As part-time.

PN57

THE COMMISSIONER: But you consented her to having time off and working short days?

PN58

MR CHEUNG: Yes.

PN59

THE COMMISSIONER: Right. What period of time did that cover, when did she return to work?

PN60

MR CHEUNG: She returned to full-time on the - - -

PN61

THE COMMISSIONER: No, when did she resume after she had been ill, when she was working part-time?

PN62

MR CHEUNG: The part-time started on 22 April.

PN63

THE COMMISSIONER: Which year?

PN64

MR CHEUNG: 1999.

PN65

THE COMMISSIONER: That is when she commenced working part-time.

PN66

MR CHEUNG: Yes.

PN67

THE COMMISSIONER: After she had returned from her lengthy illness?

PN68

MR CHEUNG: Correct.

PN69

THE COMMISSIONER: How long did she work part-time, or broken time?

PN70

MR CHEUNG: Until 21 October 1999.

PN71

THE COMMISSIONER: After that she then worked full-time?

PN72

MR CHEUNG: She full-time, yes.

PN73

THE COMMISSIONER: Did she continue to work full-time up until when she resigned?

PN74

MR CHEUNG: That is correct.

PN75

THE COMMISSIONER: The resignation was in July 2002?

PN76

MR CHEUNG: Yes, sir.

PN77

THE COMMISSIONER: Do you have any records of any conversations by, or with Mr Garard, about her then pro rata sick leave, or not?

PN78

MR CHEUNG: No, sir, I do not have that conversation myself.

PN79

THE COMMISSIONER: So when she terminated in July, that is when the company believed that she effectively owed the company 14_ days of sick leave?

PN80

MR CHEUNG: Correct.

PN81

THE COMMISSIONER: Right. What discussion was there with Ms Garard, at the time of her resignation?

PN82

MR CHEUNG: I wasn't involved in any discussion, instead I just ..... send the case to my general manager, which we deduct that payment as we see is within the law, so we do according to the law, because if she has not earned that entitlement - - -

PN83

THE COMMISSIONER: So your general manager directed you to deduct the 14.5 days?

PN84

MR CHEUNG: Yes.

PN85

THE COMMISSIONER: There was no discussion with the lady before that was deducted?

PN86

MR CHEUNG: Not me myself.

PN87

THE COMMISSIONER: Was there any discussion with her by anybody - with anybody?

PN88

MR CHEUNG: Not to my knowledge. Maybe - I had to - sorry, sir, I do not go any further because that - I have no knowledge about this.

PN89

THE COMMISSIONER: Yes, okay, I understand, right. You have endeavoured to resolve this matter in discussion with Ms Garard and with Ms Hutchins, on behalf of Ms Garard and you have reached a stalemate?

PN90

MR CHEUNG: The discussion was - - -

PN91

THE COMMISSIONER: Mr Kier.

PN92

MR KIER: That is correct, sir.

PN93

THE COMMISSIONER: Have you been involved, Mr Kier?

PN94

MR KIER: I have absolutely been involved most recently with my arrival into Australia. I have only been here for the last couple of months.

PN95

THE COMMISSIONER: Yes.

PN96

MR KIER: And come in here on the basis that I wanted to find a solution, which I found reasonable. I have had a couple of conversations with the union about it. My viewpoint - and here you have to excuse me on it - my viewpoint on this is coming as an outsider, I think the company has been very lenient with Ms Garard. I think we have tried to show our company culture, where we are very flexible on our employees when they are sick, but I think this sort of thing also applies both ways, meaning that - the point that we cannot have a scenario where we are to adopt to pay individuals, because I would think that this is.

PN97

THE COMMISSIONER: Mr Kier, was Ms Garard's service satisfactory?

PN98

MR KIER: Yes, to my knowledge, correct. I have not seen any documents which stipulate that Ms Garard did not perform well in her job.

PN99

THE COMMISSIONER: And what is your understanding of Ms Garard's award entitlement?

PN100

MR KIER: My understanding is with after having interviews with those - the manager at that time, with the General Manager, my predecessor, is that it was given for her overtime to pay back.

PN101

THE COMMISSIONER: Sorry, your understanding was what?

PN102

MR KIER: My understanding was that it was given to Karen, Ms Garard, overtime that she would accumulate the sick-pay and then ultimately go back to a zero. Likewise what I see and maybe that is also interesting in this case and not specifically related, but when we for instance have, annual leave, we will also allow a staff member to take that annual leave earlier than actually earned. And we have applied the same - the same in this case, where sick-leave was taken earlier than earned. Unfortunately in this case, it wasn't actually earned.

PN103

Likewise, if you have a similar instance here where we could end up here, saying that we have paid annual leave for a person prior to actually earning it, then the person would come back and say it was, yes, but it was not a gift. That is my logic to say that if we are on annual leave, give that prior to actually having earned it, yes, then this case is similar, people we have also given their sick-leave prior to actually being earned. I think ultimately as a company, what we have done from the beginning here, is that Ms Garard was seriously sick and we actually helped her out and said: okay, you are sick, we want to help you out so that your financial, not all - not - you are sick so therefore we help you on your financial consideration.

PN104

THE COMMISSIONER: Mr Kier, has there been any discussion with Ms Garard's former supervisor, the person who is alleged to have said that the company would continue to pay her sick-leave?

PN105

MR KIER: My conversations with that specific manager, there was made - he has not stipulated to Ms Garard that this was a gift.

PN106

THE COMMISSIONER: You see my dilemma is now I have got two completely opposite stories and neither of those two people are here.

PN107

MR KIER: Yes.

PN108

THE COMMISSIONER: And quite frankly, I don't know who is telling the truth.

PN109

MR KIER: That is - of course, your very right.

PN110

THE COMMISSIONER: Does that supervisor still work with the company?

PN111

MR KIER: Yes, I have here in front of - - -

PN112

THE COMMISSIONER: Would that supervisor be prepared to fill out a statutory declaration recalling the discussion?

PN113

MR KIER: I am absolutely sure that that person would either - would be very willing to do that. Yes, I - of course on the note of having the discussion with him, I have also asked him to put it in writing. Of course, at the same time, I would also have to acknowledge that it is some years ago and therefore discussions at that time might - - -

PN114

THE COMMISSIONER: Of course it is some years ago, but there are also some very severe onuses that rest upon persons who fill out statutory declarations.

PN115

MR KIER: Yes, and therefore I am also - I as I say here, I'm sure that the individual will sign such a document if required.

PN116

THE COMMISSIONER: All right, thank you, Mr Kier. Back to you, Ms Hutchins, would Ms Garard be prepared to do exactly the same thing?

PN117

MS HUTCHINS: Yes, Commissioner, Ms Garard would quite happily fill in a statutory declaration recalling the events of 1999.

PN118

THE COMMISSIONER: All right, does she have any other supporting material or any other witnesses to that discussion, in the same way that I would put it to the company. Is there any other diary note, record or what ever of what was said?

PN119

MS HUTCHINS: I can put that to Ms Garard and ask if she has that documentation, I can't answer today. I can also ask her if there were witnesses to any conversations and I'm assuming that the majority of the conversations taking place in her home, that potentially there are some witnesses to that.

PN120

THE COMMISSIONER: Yes. Well, I think both parties should realise the issue that you bring to me for assistance to resolve and that simply is that one party asserts something was said and interpreted that what was said was effectively a gift of paid leave. On the other hand, the other party says, no such gift was made. I'm in no position to decide one way or the other, or to make a recommendation unless one side or the other can support their contentions about that gift with whatever material what be available or whatever other witness might be available to support those contentions.

PN121

Now, whilst I understand from Ms Hutchins, you are prepared to accept a recommendation from me, I think I need to be more satisfied on the material that I have before me of more of the facts and based on that, I would be prepared to make a recommendation in order to resolve the difference. But can I just get your confirmation on the public record, that whatever recommendation I will make, from you, Ms Hutchins, at first instance, Ms Garard will accept?

PN122

MS HUTCHINS: Yes, I have spoken to Ms Garard and any recommendation that is made by the Commission we will both, the ASU and Ms Garard will adhere to.

PN123

THE COMMISSIONER: All right and Mr Cheung or Mr Kier, will the company accept any recommendation?

PN124

MR CHEUNG: I will do that.

PN125

MR KIER: Yes, we are accepting.

PN126

THE COMMISSIONER: Well, all right, thank you. Well, having heard what you have each had to say and very conscious of the fact that neither Ms Garard nor her former supervisor are present today to have heard this discussion and the submissions made in support of your respective positions. What I will do, is give each side 14 days in which to provide me with any formal submission, witness statement or other documents in support of your contentions about whether this additional sick-leave was or was not a gift from the employer.

PN127

When I receive those submissions, I will consider them and I will make a recommendation at that time and I note on the public record both parties have indicated to me that they will accept that recommendation as the final settlement of this dispute. Before concluding, are there any questions about that - either about that time-table or about other matters related to this dispute? From you, Ms Hutchins?

PN128

MS HUTCHINS: Commissioner, do we give that to your associate via fax or?

PN129

THE COMMISSIONER: You can file it in the Commission, file it in the Registry will do fine.

PN130

MS HUTCHINS: Okay, and in addition, would you like a copy of that also sent from both sides to each other?

PN131

THE COMMISSIONER: I think that is appropriate, then you will each know what you have sent to me.

PN132

MS HUTCHINS: Yes, okay.

PN133

THE COMMISSIONER: And perhaps if I require you both to provide me with your submissions and supporting documents within 14 days of today and any reply to what each other has filed and served within 7 days of that. So that will, on that basis, you will be required to file in the Registry and serve upon each other your first round of documents in support of your respective positions by close of business 3 April and what ever reply each side may wish to make to those first round submissions and documents by close of business on Thursday 10 April and after that I will conclude the matter by making a recommendation. Any questions, Mr Cheung?

PN134

MR CHEUNG: No, sir.

PN135

THE COMMISSIONER: Mr Kier?

PN136

MR KIER: None at all, crystal clear.

PN137

THE COMMISSIONER: All right, fine, well, I will adjourn the proceedings and expect those submissions in time after which I will then deal with the matter by making a formal recommendation. That concludes the matter.

ADJOURNED ACCORDINGLY [4.32pm]