Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of Australia (New South Wales Branch) (on behalf of Denise Shields) and Oceania Pty Limited [2005] NSWIRComm 1064 APPLICANT Transport Workers' Union of Australia (New South Wales Branch) (on behalf of Denise Shields) and Oceania Pty Limited PARTIES: RESPONDENT Oceania Pty Limited FILE NUMBER(S): 917 of 2003 CORAM: Patterson C LEGISLATION CITED: Industrial Relations Act 1996 DATE OF JUDGMENT: 04/26/2005 DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER PATTERSON 26 April 2005 Matter No IRC 917 of 2003 Transport Workers' Union of Australia (New South Wales Branch) (on behalf of Denise Shields) and Oceania Pty Limited Application by Transport Workers' Union of New South Wales on behalf of its member Denise Shields re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm #### 1 This application for relief was filed by the Transport Workers' Union of Australia, New South Wales Branch (the "Union) on behalf of its member, Ms Denise Shields, whose employment with Oceania Vehicle Processors Pty Ltd (the "Company") was abruptly terminated shortly before she had achieved three months' service. 2 Briefly stated, Ms Shields had previously been employed as a "Co-ordinator of (motor) Vehicle Preparation" (pre-delivery) at Daimler-Chrysler in Milperra for approximately 12 years. Her duties "were to ensure all administrative work was completed" to ensure that vehicles complied with relevant Australian standards and dealership requests prior to delivery. 3 Having learned that the respondent had won the contract for this work, and that her position would become redundant on 25 October 2002 Ms Shields wrote to Oceania Vehicle Processors Pty Ltd to offer her services. On 5 November the Company responded and arrangements were made for an interview on the following morning with Mr Bob Stowe, National Operations Manager. 4 Mr Stowe provided a brief history of the company and its operations and "mentioned the contract which they had won to work with Mercedes vehicles." The position discussed was that of a "Customer Liaison Officer," there currently being three others "all handling multiple manufacturers." In the event of Ms Shields being appointed she claims to have been told "apart from you looking after Mercedes Benz you would be given other manufacturers." Asked as to her familiarity and experience with sales and service people at the Daimler Chrysler dealerships she claimed to have enjoyed a long-standing "good rapport" with all of them. After then introducing her to the site manager, Brett Molloy, Mr Stowe undertook to contact her later in the day. 5 He subsequently offered Ms Shields the position and, after they agreed upon a salary of $36000 per annum he said, according to her evidence: "I'll put you on a three month contract and then you'll be given extra clients after this period. We'll dispense with the probation period. Welcome aboard Denise, we'll see you on Monday and, if you have any problems or queries, just contact myself." Ms Shields duly commenced on 11 November. Her duties would embrace co-ordination of all activities associated with vehicle pre-delivery between manufacturer and dealerships by liaison with the relevant personnel and services within and beyond the site. 6 Approximately three weeks after her commencement the applicant received a letter from Mr Stowe as purporting to confirm the terms of her appointment significantly different to that which, she states, had been verbally agreed earlier. Attached to the letter dated 4 December was a summary of the Company's general conditions of employment whereupon Ms Shields was asked to acknowledge her understanding and acceptance by signature at the base of Mr Stowe's letter. 7 Contrary to her claimed understanding the letter made reference to her employment being characterised as "casual," her salary of "$3600"(?) being supplemented by a "20% loading of $600" (?). It made reference to the rights of either party to terminate the contract by provision of "one week's notice" contrary to the attached general conditions of employment which provide for "four weeks'" notice. 8 The letter also stated: "At the completion of this contract on 11th February 2003, you may be offered permanent employment subject to a satisfactory performance during your period of casual employment" 9 Hours of work were described as being "8 am to 4 pm", Monday to Friday, with a lunch break of 30 minutes "for a total working week of 38 hours": "However in order to perform the job effectively, your hours may sometimes vary and you may be required to work additional hours. Your salary covers payment for overall performance of the job and overtime will not be payable." 10 Unable to contact Mr Stowe, Ms Shields wrote back in the following terms on 13 December "to clarify the anomalies in his letter": " Offer of Casual Employment – Contract Dear Mr Stow Thank you for your letter of offer of 4 December 2002. I appreciate the offer, however there are some anomalies to the conditions that vary from the details that we actually discussed during our phone conversation in relation to the position of Customer Liaison Officer for Mercedes-Benz being offered to me that I would like to bring to your attention. The offer as I recall was for me to be given a three (3) month contract without a probation period and there was no mention for either party to formally give one (1) week's notice for termination of this contract. The hours of work I agree are 8.00am to 4.00pm which constitutes 37 hours and 30 minutes per week, and not the 38 hours as specified in the contract. For the last 4 weeks I have commenced work at 7.10am and finished late to put in an extra effort to catch up with outstanding work which I am finding a nearly impossible task Mercedes-Benz had a total of 5 people allocated for vehicle processing which did not constitute the repetitive work required by this system. I feel that to get on top of this workload an extra 20 hours a week is required. The contract stipulates that these hours would be unpaid and it would be totally unreasonable to expect anyone to put in these hours and not receive remuneration. I wish to draw to your attention that the number of Mercedes Benz vehicles arriving for the month of December is 600, an increase of one hundred above previous months. There is no job description attached to the terms and conditions for employment and I was under the impression that I would be directly responsible to your control and not that of the site manager. I would also like to know as the customer Liaison Officer for Mercedes Benz if I am to be included in meetings with Mercedes Benz as my exclusion from the last meeting left me misinformed and lacking in information that transpired as the result of that meeting. I am also experiencing great difficulty in calculating my pay Statement as I cannot reconcile the hours worked with the calculations even after speaking to the pay office. The salary of $36,00 per annum is obviously a typographical error." 11 On the following day, Ms Shields was approached by Mr Molloy who was said to have been seeking a particular vehicle compliance plate and job card but she could not find them claiming the reason as probably being due to other employees accessing various paperwork for which she was responsible. She states that he replied in a "very loud and agitated way ... 'just do it, just do it'." Upset with Mr Molloy's alleged general attitude and treatment of her, Ms Shields promptly went over his head and dispatched a list of her concerns to the National Manager - Geoff Ellis, National Accounts Manager - Marilyn Schofield and National Operations Manager - Bob Stowe. 12 I reproduce the terms of this email dated 15 January: "Dear Geoff, Bob and Marilyn Tuesday 14th January was the second day back for Mr Brett Molloy from his Christmas break. The site at Rosehill has been considerably understaffed over the Christmas period due the absence of Margaret, Moses, Frank (mechanic), the termination of Paul Millar (mechanic) and Debbie Gillett only returning back to work on 9th January 2003. Each staff member who remained at work over this period put every effort and energy into trying to maintain the constant flow of production. Prior to Brett Molloy taking annual leave I was subjected to his curt and tyrannical manner when he required me to follow through with one of his commands for an urgent request for a vehicle, when I tried to convey the reason he yelled out to me in the build shed to "JUST DO IT, JUST DO IT". I asked him to be civil and he ignored me and walked off. Tuesday afternoon I experienced this attitude again. I was informed by Brett that paper work had gone out to the Build shed incomplete, I tried to explain that a number of people had been to the Mercedes-Benz' paperwork on my desk, taking papers pertaining to vehicles that I was now chasing up for dealerships and due to other staff members printing job cards and taking compliance plates I was not able to collate a full set of documents, he did not want to listen to my explanation and became extremely agitated with me. I was originally prepared to work back that afternoon to complete the work but due to the emotional stress that he put me under I did not feel well enough to stay back that afternoon When I advised Brett of this he told me that I had had a "DUMMY SPIT". I again asked him to be civil to me and he said that he believed he was. I am making every possible effort to keep on top of the workload even though this is an impossible task. Mercedes-Benz Milperra were extremely efficient in obtaining their goals in this area as they had a staff of five (5) full-time managing all aspects required to achieve their unique results. Oceania has one CLO doing the complete workload while expecting to achieve the same results as Milperra. Well I would have thought that an International Organisation such as Oceania would have had the acumen to sustain if not better the efficiency of Mercedes-Benz Milperra by implementing the appropriate strategies and policies. Occasional hiring of a casual to fill in the gaps is counter-productive as there is no commitment towards long term goals. I find that this lack of co-operation from management is very stressful and it is impeding on my work performance and my personal health to the extent that I am experiencing migraine headaches and extreme anxiety all the time. I had no problems of this sort when I was employed by Mercedes Benz. Yours sincerely" 13 On 21 January Mr Ellis is stated to have phoned her confirming receipt of the email indicating that he would "take (its contents) on board ..." and advising her to "hang in there and I'll be back in touch with you." 14 At "approximately 3.45 pm on 31 January" Ms Shields received a call over the two-way radio from Mr Molloy asking her to meet with him in his office. Arriving there she states the meeting to have been brief with his saying words to the following effect: "Denise, I'm exercising my options and we won't need you any longer, you've done a good job, we appreciate what you've done. Thank you." With no further discussion the dismissal was to take effect immediately. 15 As I understand her evidence "all" entitlements together with the balance of her so-called three-months' contract (to11 February) were paid in lieu. However, she states that she did not receive any monies for approximately three weeks. 16 The respondent has filed two replies to the application for relief. The first, filed on 14 March 2003, detailed and signed by Mr Stowe, provides: "Denise Shields was employed as a casual under a contract with a 3 month probationary period. We do not believe this is an Unfair Dismissal case as Oceania Vehicle Processors has exercised the option to terminate Denise within the 3 month period ..." 17 However, in the late afternoon of 16 April, and on the eve of the matter being first listed for conciliation and directions, an amended application was filed by the Motor Traders Association of NSW ("MTA") which stated: "1. Jurisdictional issue: Application filed in wrong jurisdiction. Employee (Applicant) subject to FederalVehicle Industry Repair, Service and Retail Award 1983 by reason of Respondent's membership with MTA (NSW) (respondency basis) coverage. 2. Company is a constituted corporation and pursuant to provisions of W.R. Act 1996 , the Federal Act applies together with assoc. Regulations. 3. Termination effected during probation period, therefore, under Reg. 30B(1)(c) WR Act, applicant excluded from bringing unfair dismissal claim." 18 Appearing for the respondent Mr T Vargo, of the MTA, submitted that the role of Ms Shields fell within the Federal Award definition of "Record Keeper" which states: "(ad) 'Record keeper' means an employee not being a tradesman who is mainly engaged in making, issuing and/or maintaining records of times, costs, receipts, payments, hire purchase transactions and/or other records associated with sales, repairs and/or service operations." 19 In describing the respondent's operations Mr Vargo supplied an extract of his client's "brochure" which conveniently summarises its activities as such: "Oceania Vehicle Processors (OVP) have been providing vehicle processing solutions to the automotive industry since 1998. OVP specialises in: Pre-delivery – vehicle inspections, road testing, detailing; Additional pre-delivery services – accessory fitment, paint and fabric protection, window tinting, alarm installation, data dot security application, air conditioning; Fit-out of commercial vehicles – fitting internal shelving, installing ladder and roof racks, decal and signage; Paint and panel – colour coding; Storage of floor plan vehicles - inspection and maintenance of stored vehicles, preservation for long term storage vehicles. OVP is the logistical link between vehicle Manufacturers and vehicle Dealers." 20 Having been a member of the Motor Traders Association of New South Wales since 2001, and continuing to be so at the time of these proceedings, the respondent operates in all states of the Commonwealth with its local facility based at Rosehill. 21 Whilst there was no job description or duty statement provided to the applicant during interview, or on appointment, or several weeks later in accompaniment with Mr Stowe's correspondence of 4 December, the applicant had prepared a summary of her duties for use in these proceedings. 22 This version of duties is put forward by Union advocate, Mr C Heuston, in support of the claim that the applicant's employment was more appropriate to the Clerical and Administrative (State) Award. However, no detailed reference is made to its general grading structure or the precise grade in which her position would have been conveniently and properly situated. In the alternative, it is put that the applicant's employment should be determined as award-free. 23 Whilst there appears to be no serious disagreement between the parties as to Ms Shield's own description of her duties, save for a differing (and loose) emphasis on each party's convenient reference to the term "duties of a clerical nature," the Commission is left to rely upon a paucity of evidence largely confined to a perusal of her own singular document, barely a scintilla of cross-examination, and broad consideration of the respondent's summary of business activities [19]. 24 Indeed, this scarcity of evidence extends to the entire case due to the unfortunate difficulties caused in the failure of the respondent's representative to file and serve its evidence in accordance with the Commission's directions. 25 Filed in February 2003, the matter was first listed for conciliation and directions in March but postponed until April due to the Union's inability to be represented. In those proceedings the circumstances were unable to be explored sufficiently due to the MTA representative being without assistance by the presence of a representative of his client. The matter was adjourned with the parties under directions to confer and stood out of the list for the Union to advise. 26 When relisted in July the parties advised that no progress had been made – either on the question of jurisdiction or the merits. In fact, the parties had, it seems, not met at all having relied merely on a single contact by telephone and a written offer of settlement by the respondent which had been rejected. 27 Then set down for Hearing to take place on 19 September with directions for the filing and service of witness statements according to an agreed timetable it became necessary to vacate and provide an alternative date due to my being unavailable due to illness. 28 The alternative date, 28 October, was then vacated upon a request by Mr Vargo due to a conflict in respect to his own commitments previously listed before the Australian Commission. Further set for 21 November according to mutual availability the matter was to finally proceed. However, not withstanding the July directions for filing and serving of the evidence, the respondent's evidence had not been filed until the afternoon of 20 November – nearly three months after it was originally due – and only a whisker before the hearing was set to commence. 29 Since the applicant had been placed at a disadvantage – a possibility which had earlier been flagged by the Union in correspondence to the MTA – Mr Heuston, not unexpectedly, made application for the respondent's evidence to be excluded from the proceedings. 30 Opposing this application Mr Vargo explained the delay as being due to an inordinate workload being undertaken by him over this time and apologised accordingly. 31 In considering Mr Heuston's application I referred the parties to the transcript of 2 July in which I had, in issuing directions, made the following statement: " COMMISSIONER: The matter is now set down for hearing. The jurisdictional question and the merits will be heard concurrently for convenience and expedition. The hearing date will be 19 September, to commence at 10 am in the expectation that the matter will conclude within that day. I direct that the matter shall proceed wholly by witness statements, save for cross-examination, and for the applicant to file and serve her material by 30 July; the respondent to file and serve by 26 August. If the applicant has anything in reply, then that should be attended to by 9 September. I would also impress upon the advocates the need to have the material filed and served on time, otherwise it might not be accepted. If either of you have a difficulty – and these things happen – you might contact the other and attempt to reach an accommodation, in which case I would be content with whatever that would be, provided it does not prejudice the hearing date. If you do have a problem and you can't accommodate, then you should contact my office and ask for the matter to be re-listed for directions. All right, gentlemen, then the matter will be adjourned. Thank you." 32 However, notwithstanding Mr Vargo's other stated commitments he made no attempt to advise the Union – or this Commission had it been necessary – of his difficulties. As I understand the position neither did he respond to Mr Heuston's correspondence of 14 November – only one week before the hearing. 33 Clearly, this presented an unacceptable situation and, save for granting a further adjournment thereby causing further delay, would have placed the applicant at considerable disadvantage. 34 Accordingly, I decided to grant Mr Heuston's application for the respondent's evidence to be excluded – save for various documents which would assist the jurisdictional question – and proceed with the applicant as sole witness. 35 Returning to the threshold question as to jurisdiction, I have considered very carefully the applicant's own version of her statement of duties against the respondent's operations and the Federal Award definition of "Record Keeper" and, in the absence of any additional evidence which might have otherwise assisted by the Union's loose reference to the Clerical and Administrative(State) Award, am unable to determine in favour of the latter. 36 I set out below the applicant's own summary: "My functions as Customer Liaison Officer – Mercedes–Benz Vehicles at Oceania: Monitor shipments carrying Mercedes-Benz vehicles into Sydney ports and prepare wharf papers and labels for each vehicle. Prepare warranty papers and job cards for each vehicle on shipment; Marry warranty papers with sales report papers and compliance plates; Monitor in-house reports for Sydney vehicles in relation to: level in which metropolitan dealer was to receive the vehicle (level 1 was build status only, level 2 was build status and detail, level 3 was build status, detail and road test and registration certificate all of which was done on the Sydney premises); Update Vehtrack system with wharf damage; Prepare job cards for vehicles that needed spare parts to be ordered for warranty or body repairs; Liaise with stock controllers at Mercedes-Benz (Daimler Chrysler) Milperra for variations to the level that vehicles were to be prepared or the exchange of a vehicle to a metropolitan dealership; Liaise with dealerships as to the date the vehicle is required; Monitor the progress of each stage of the vehicles within the build shop; Book metropolitan car carriers to transport vehicles to dealerships; Print and fax despatch job card for gatehouse to release vehicle to car carrier; Attend meetings between Oceania management and Mercedes-Benz Milperra management; Organise couriers to deliver various items to metropolitan destinations, such as: documents, compliance plates, keys etc. which may have been lost by the dealership; Arrange for damaged vehicles to be repaired at metropolitan repairer; Track progress of vehicles on premises and off premises; General office work: Answering of phones and two-way Faxing Photocopying Reception Email Computer functions relating to processing of vehicles. I hope this will be of assistance." 37 On the evidence, limited as it is, I would describe Ms Shield's function as one which might equate to co-ordination of a production line – in this case a production line of vehicles from the manufacture to dealership. 38 Of necessity, the miscellany of activity associated with each individual vehicle is required to be organised according to common standards and/or special requisition. Whilst the applicant's duties must, of course, involve some "clerical" application the core of her function, it seems to me, lies in the generation and maintenance of "production line" (my description) records which flow with the vehicles' progress. 39 Such activities comfortably fit with the "Record Keeper" definition, in my opinion, particularly as it relates to records "associated with ... repairs and/or service operations." 40 In dismissing this application for want of jurisdiction I note the confusion which has arisen between the parties as to the terms of Ms Shield's appointment and the early references by the respondent to a question of "probation/casual status/fixed term appointment", none of which should have arisen in the manner experienced. Having regard to the reference of "four weeks" notice being applicable to the document which had accompanied Mr Stowe's letter of 4 December I consider that Ms Shields ought not bear the sole burden of that confusion. 41 Notwithstanding this Commission's absence of jurisdiction, as determined, I nevertheless recommend that the respondent pay to the applicant a sum equivalent to a further three weeks' payment in lieu of notice – an amount, on one view, which would otherwise have reflected an entitlement which remains outstanding. R. J. Patterson COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.