Amore v A and M Garages and Sheds

[1997] IRCA 43

DECISION NO:43/97

C A T C H W O R D S

INDUSTRIAL LAW - termination of employment - operational requirements justified the employer requiring employee to work on Saturdays - valid reason for termination

Workplace Relations Act 1996 ss.170DC, 170DE, 170EA

CASES:

Selvachandran and Peteron Plastics Pty Ltd (1995) 62 IR 371

Nicolson and Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199

Gibson and Bosmac Pty Ltd (1995) 60 IR 1

Kerr and Jeroma Pty Ltd (unreported, IRCA, Marshall J, 7 October 1996)

Nettlefold and Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996)

AMORE -v- A & M GARAGES & SHEDS

No. VI-2310 of 1996

Before:  Ryan JR
Place:  Melbourne
Date:  21 February 1997

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-2310 of 1996

B E T W E E N :

JOHN AMORE
Applicant

AND

A & M GARAGES & SHEDS
Respondent

MINUTES OF ORDERS

Judicial Registrar Ryan  21 February 1997

THE COURT ORDERS:

1. That the application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-2310 of 1996

B E T W E E N :

JOHN AMORE
Applicant

AND

A & M GARAGES & SHEDS
Respondent

Before:      Ryan JR

Place:       Melbourne

Date:         21 February 1997

REASONS FOR JUDGMENT
(Delivered ex tempore)

The Applicant claims relief in respect of termination of employment.

Mr Steven Wilkinson conducts a business under the name of A & M Garages & Sheds. The business sells, packs and delivers kits of steel building products which when erected no doubt constitute garages and sheds. On the 5 June 1995 he employed the Applicant in work described in a JobStart Wage Subsidy Agreement as “assembling pre-fabricated garages and sheds, operating a forklift, sales work”.

The Applicant was provided with a copy of the Agreement which was between the Respondent as employer and the Commonwealth as the provider of wage subsidies. The Agreement, under the heading of “Title of Award” referred to the “Retail Trade Industry State Award Level 5”. Counsel for the Respondent submits this can only be a reference to the Electrical Furniture and Hardware Shops Award No 1 of 1994, a State Award made under the Employee Relations Act 1992.  However, Counsel for the Respondent concedes that this Award ceased to be applicable on the 11 May 1995 before this period of employment began. Nevertheless, the Respondent argues that the provisions in the Award, which provide that the ordinary hours of work are 38 hours between Monday to Friday 7:00 am to 9:00 pm and Saturday 7:00 am to 6:00 pm, were incorporated into the contract of employment between the Applicant and the Respondent. Reliance is placed on the reference to 38 hours under the heading “Award Enterprise Agreement Full Time Hours” and the reference to 38 hours under the heading, “Hours of Work” and the vague incorrect reference to “Retail Trade Industry State Award”.

There is no evidence that the Applicant was ever given a copy of the allegedly relevant State Award and no evidence that specific conditions in that Award were ever applied to the contract between the Applicant and the Respondent or discussed in specific terms by Mr Wilkinson and the Applicant.

I find that the terms of the Award were not incorporated into the Contract of Employment. However, I accept the evidence of Mr Wilkinson that the possibility of a requirement for the Applicant to work on Saturdays was raised early in the employment. His evidence was that initially the spread of hours was “left up in the air” but that Saturdays would probably become relevant as the business grew and that the Applicant’s attitude was to the effect that he “would take it as it comes”. It is clear from the Applicant’s own evidence that “take it as it comes” does not mean that the Applicant would agree to Saturday work. The Applicant concedes that Saturday work was discussed and that he never agreed to work what he described as “Saturdays full on”. The Applicant stated that he shrugged off suggestions that he work on Saturdays, that his weekends were sacred to him, and, with his wife working Thursday, Friday and Saturday, the obligations of five children militated against him working Saturdays as a regular thing. Nevertheless, the Applicant did work as a subcontractor delivering kits for the Respondent on nine Saturdays between the 13 January 1996 and the 1 June 1996 and worked on wages in his normal job on one Saturday.

Mr Wilkinson had very little detailed recall of the Applicant’s responses to overtures that he should work on Saturdays in his normal job either by taking a day off in lieu during the week or by working Saturdays in addition to Monday to Friday on the basis of commission only on such Saturdays.

It is clear, and the Court finds, that the Applicant never consented to regular Saturday work although he had clearly consented to contract delivery work on nine Saturdays and presumably to ordinary work on one Saturday. It is also clear that matters came to a head on the 8 July 1996 when Mr Wilkinson told the Applicant he would have to work every second Saturday.

Both Mr Wilkinson and the Applicant agree that the Applicant told Mr Wilkinson that he, (Mr Wilkinson) had a problem and that he, (the Applicant) was not available on Saturday.

Again, there is no doubt that Mr Wilkinson on his own evidence told the Applicant then and there that he had no choice but to terminate the employment with two weeks notice and this was confirmed in a letter of termination the next day.

The Court has no difficulty with the proposition that the operational requirements of the business justified the Respondent requiring the Applicant to work on Saturdays and that the Applicant’s refusal to comply could constitute a sound, defensible and well founded reason for termination within the terms of Selvachandran and Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373. This was a small business. There was slack during the week and peak demand on Saturday.

However, the Court is not satisfied that the Applicant was given an opportunity to respond in the sense of an opportunity to comply with the Respondent’s wishes, and indeed the Respondent’s direction, on the basis that non-compliance would lead to termination at two weeks notice. The Applicant was not told on 8 July that non-compliance would lead to termination. He was told his non-compliance had led to his termination. Be that as it may, I have no doubt that if the Applicant had agreed to work on the alternate Saturdays and had so agreed later on 8 July or during the part of the notice period that he remained working, his employment would have continued. Equally, I have no doubt that if the Applicant had been told prior to the advice of termination that termination was inevitable if he did not comply, he still would have declined to work every second Saturday.

The Judges of this Court have often said that s170DC must be applied in a practical and commonsense way. Nicolson and Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199, Gibson and Bosmac Pty Ltd (1995) 60 IR 1 and Selvachandran are but three of many examples.

If Mr Wilkinson had been scrupulously fair in a procedural sense and had not only advised the Applicant on 8 July that a failure to work every second Saturday would result inevitably in termination but had also given the Applicant a formal chance to reconsider, it would not in the Court’s view have made a whit of difference. The Applicant had been pursuing alternative employment while with the Respondent. The Respondent did not stand in his way. A favourable reference was provided and the Applicant was given some time to pursue other applications. The Court also notes that the Applicant obtained alternative employment albeit shortlived within a week of the termination.

I find that there was a valid reason for this termination and that minor defects in the termination process in a procedural sense did not vitiate the validity of the reason. I find that the reason was based on the operational requirements of the business and was justified and objectively defensible in the circumstances (see Kerr and Jeroma Pty Ltd (unreported, IRCA, Marshall J, 7 October 1996)).

I also find that, if in terms of Nettlefold and Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996) there is a requirement that a termination of employment at the initiative of an employer be not unjust or unfair, then this termination was not unjust or unfair.

The Applicant seems troubled by concerns about unpaid commission and some aspects of a loan for a truck purchased for contract deliveries. There is no evidence of unpaid commission even if leave had been granted to pursue such a claim in the accrued jurisdiction.  The Applicant’s arrangements as a contract deliverer are not relevant to his claim for relief for termination of employment.

In the circumstances and for the reasons outlined, the Applicant’s claim for compensation in respect of his termination of employment by the Respondent cannot be sustained and is dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That the application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding 3 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.

Associate:          
Dated:  24 February 1997

Mr J Amore appeared for himself.

Solicitors for the Respondent:      Eales & Mackenzie
Counsel for the Respondent:                 Mr I Upjohn

Date of hearing:  21 February 1997
Date of judgment:  21 February 1997