Andrew Wlodek v Casino Canberra Ltd

[1997] IRCA 212

DECISION NO:212/97

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION - REDUNDANCY - VALID REASON - COMPENSATION

Workplace Relations Act, 1996, ss 170 DE(1) EA EE(3)

ANDREW WLODEK-v-CASINO CANBERRA LIMITED(A.C.N. 051 204 114)

No.  AI 1144 of 1996

CORAM:      LINKENBAGH JR
PLACE:        CANBERRA

DATE:           23 MAY 1997
IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY  AI 1144 of 1996

ANDREW WLODEK
Applicant

CASINO CANBERRA LIMITED (A.C.N. 015 204 114)
Respondent

Coram:         Judicial Registrar Linkenbagh
Place:  Canberra
Date:             23 May 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The respondent pay to the applicant the sum of Two thousand five hundred dollars as compensation pursuant to the provisions of section 170EE(3) of the Act

Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY  AI 1144 of 1996

ANDREW WLODEK
Applicant

CASINO CANBERRA LIMITED (A.C.N. 051 204 114)
Respondent

Coram:         Judicial Registrar Linkenbagh
Place:  Canberra
Date:             23 May 1997

REASONS FOR JUDGMENT

Delivered ex tempore and revised from the transcript

This is an application filed in the Australian Industrial Relations Commission on 30 September 1996 in which the applicant seeks a remedy in an application under section 170EA of the Workplace Relations Act 1996. The applicant was employed between 5 May 1993 and 17 September 1996 as what is described in his application as ‘Waiter/Manager/Captain’, and what is described in exhibit 2 as ‘Food and Beverage Attendant’.

The applicant's employment came to an end at the same time as the closure of a restaurant known as Shuffles, located within the Casino premises.  The applicant and one other person were the only full-time employees in that restaurant, and the case for the respondent is that, simply put, because of the closure of the restaurant, the applicant's services were no longer required.  That is, of course, putting the matter very simply and could not be gainsaid if in fact the restaurant were a separate business entity. However, the respondent in these proceedings and the employer of the applicant, is Casino Canberra Limited, and the business operations of the respondent at the time were far wider than the conduct of Shuffles restaurant.

The respondent's evidence clearly shows, and it is not in dispute, that the financial circumstances of the respondent were gradually worsening, and that the closure of the restaurant was a measure taken to save money.  The respondent cannot, of course, be criticised for that.  The difficulty that the respondent faces, however, is in the choice of the applicant as the candidate for this redundancy. 

The evidence before the Court is lacking as to the full picture of the make-up of the people in this workforce.  There were casual employees and there were full time employees who performed a range of duties in the operations of the Casino.  There is no evidence that of the employees in the food and beverage area generally, a selection process was undertaken which resulted in the decision that the applicant was the appropriate person for redundancy.

Exhibit 2 describes the applicant as a Food and Beverage Attendant.  It is agreed that as at September of 1996, he enjoyed the position and status of Manager of Shuffles Restaurant and after 17 September there certainly was no position as Manager of Shuffles Restaurant subsisting. The evidence is, however, that the applicant had a variety of skills and had worked in other parts of the Casino premises, including the Cafe, which was a more informal food and drink outlet than Shuffles Restaurant, and the various bars. 

It would have been prudent for the respondent to have engaged in a process of assessment of the relative merits of those of its employees who performed duties for which the applicant was qualified before coming to the conclusion that the applicant was to be made redundant.  There is no evidence that such an exercise was undertaken. The evidence for the respondent at its highest is that of Mr Lee, who considered that the staff in the cafe part of the respondent's operation were more appropriate than would have been the applicant as a staff member in that part of the operation, because they had been initially selected for that purpose.  That evidence fails to take into account the expertise of the applicant and the fact that he had at times worked in the cafe area.  Mr Lee acknowledged that if the applicant had been placed in the cafe, someone else who was employed there would have had to go.  That is certainly a factor to be taken into account.

There is evidence in exhibits 3 and 4 of details of the persons who commenced employment in various capacities between July and November of 1996 at the Casino and those whose employment terminated between July and October of 1996.  Those exhibits are not as helpful as they would have been if they had been accompanied by evidence of the overall employment situation at the Casino.  Exhibit 3 shows that a full time Food and Beverage Attendant commenced on 13 August 1996, that a casual Kitchen Hand commenced on 18 September and a casual Bar Attendant commenced on 17 September. 

One would think that it would have been reasonable and a relevant consideration, if the respondent were genuinely assessing the redundancy situation, to have taken the necessity for those appointments into account at the relevant time, and that apparently was not done.  The witnesses for the respondent gave evidence that as a further consequence of the downturn in the Casino's financial situation, there was a change in the style of the cafe in December of 1996, and the applicant suggested that he should have been considered for the role of Manager of the restyled cafe.  That evidence is irrelevant to the matters before the Court today.  The Court is considering the position as at 17 September 1996. 

The Court finds that there was a failure on the part of the respondent to genuinely explore the facts and the possibilities in the selection of the applicant for this redundancy.  It seems that the respondent took what was the obvious line of dispensing with the applicant's services because his particular part of the operation had closed down.  The respondent did not do enough, and has not demonstrated that what it did do can be viewed by the Court as a discharge of its obligation to genuinely assess the selection of the applicant for termination of his employment. It may well have been that had a proper exercise been carried out, the result might have been the same, but that is only speculation.  The closure of the restaurant was not the only factor.  The length of service of the applicant and the variety of skills that he possessed are two factors to which no attention was apparently paid. 

Another relevant factor is that there is no evidence that the possibility of any other employment was explored with the applicant.  Given that he had been selected, and also given the apparently quite extensive number of casual employees of the respondent, had there been evidence of the exploration with the applicant of the possibility of some alternate casual employment, there would have been, perhaps, more evidence on which the Court could have been better disposed to find that the respondent's motives were genuine. 

The Court therefore finds that there was no valid reason for the termination of the applicant's employment and the respondent is in breach of section 170DE(1).  It is to be remembered that the respondent carries the onus of proof in that regard.  The applicant is therefore entitled to a remedy.

The evidence for the respondent, which is conceded by the applicant, is that the respondent no longer, as at today, conducts any food and beverage operations at the Casino and has those functions performed by independent contractors.  There is, therefore, no appropriate role at the Casino for the applicant at the date of hearing and reinstatement is therefore impracticable.

In assessing compensation, the Court must take into account all of the circumstances of the case.  The applicant received, on termination of his employment, in addition to his statutory entitlement for pay in lieu of notice, the sum of $2754.51 as a severance payment, apparently calculated according to the provisions of the relevant Award.  The applicant was unemployed from 18 September 1996 to 6 November. His weekly wage at the Casino was agreed by the parties at $615 per week gross.  Exhibit 1 shows that the net loss of the applicant, up to 6 November 1996, was $1154, that being the equivalent of what he would have earned during that period at the rate of $615 per week, less the amount of $2754.51 for severance pay. 

From 7 November the applicant became employed, earning $479 per week.  That employment finished on 21 November and the circumstances of the applicant's obtaining and relinquishing that employment are not in evidence before the Court.  The applicant remained then unemployed from 22 November 1996 to 14 February 1997, and from 15 February to the date of the hearing he has been in employment earning $576 per week.  However the Court was told today that that employment ceased yesterday because the employer had ceased to trade.  The applicant is now unemployed.

The maximum available compensation in this case is 26 weeks pay at $615 per week or an amount of $15,990.  In all of the circumstances, it appears reasonable that the Court should take note that the applicant entered into employment on 7 November 1996 earning $479 per week.  The circumstances of the termination of that employment are not known to the Court nor is there any evidence before the Court of any other efforts made by the applicant to mitigate his loss.  He has no doubt had an ongoing loss since 7 November 1996 and he certainly had a clearly definable loss of $1554 to that date.

Other circumstances which should be taken into account are the declining financial circumstances of the respondent, and the fact that there may well have been no other full time position available to the applicant, notwithstanding that a proper selection exercise had been undertaken.  The restaurant had certainly closed down and any role which the applicant might have taken on with the Casino after 17 September would have been a role involving lesser status than that he had enjoyed as Manager of Shuffles Restaurant and may well have involved a lesser rate of pay, given that the applicant's base rate of pay was $393.50 per week, and that was increased while he was the Manager of the restaurant because of his working hours in excess of normal hours.  His earnings may well, therefore, not have continued at the rate of $615 per week, even if he had continued in employment in some other capacity.  It may well have been that he took up casual employment as well.

Those are all unknown and speculative matters, but they nevertheless make up the circumstances of the case.  If the applicant had gone to work in the cafe, there was certainly a change in the style and theme of the cafe from December of 1996, and whether the applicant would have fitted into the cafe after that time is also an unknown quantity. 

For all of those reasons the Court is not satisfied that the applicant's loss would have continued. It is therefore not reasonable for him to obtain a substantial amount of compensation in these proceedings, and the Court determines in the exercise of discretion that the sum of $2500 is an appropriate amount. The respondent will be ordered to pay the applicant that sum as compensation pursuant to the provisions of section 170EE(3) of the Act.

The Court therefore orders that the respondent pay to the applicant the sum of Two thousand five hundred dollars as compensation pursuant to the provisions of section 170EE(3) of the Act

I certify that this and the preceding 3 pages are a true copy of my Reasons for Judgment

Judicial Registrar Linkenbagh

Date:    6 June 1997

Solicitor for the Applicant:                  Mr R MacDonald
  Vandenberg Reid

Representative of the Respondent:       Mr M Long
  ACT and Region Chamber of Commerce and Industry Limited