Begbie v City West Pty Ltd
[1996] IRCA 259
•13 Jun 1996
DECISION NO: 259/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - OPERATIONAL REQUIREMENTS - PROCEDURAL FAIRNESS - ASSOCIATED JURISDICTION
INDUSTRIAL RELATIONS ACT 1988 , s170EA, 170DE, 430
Moorgate Tobacco Co Ltd v Philip Morris (1980) 145 CLR 457
PAUL JOSEPH BEGBIE -v- CITY WEST PTY LTD
QI 95/1256
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 13 JUNE 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No.QI95/1256
QUEENSLAND DISTRICT REGISTRY
BETWEEN: PAUL JOSEPH BEGBIE
Applicant
AND: CITY WEST PTY LTD
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 13 JUNE 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
1.The application be allowed.
2.The respondent pay the applicant the sum of $2757.69 compensation within 14 days of today.
3.The respondent pay the applicant the sum of $3276.22 unpaid wages and holiday pay within 14 days of today.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1256
QUEENSLAND DISTRICT REGISTRY
BETWEEN: PAUL JOSEPH BEGBIE
Applicant
AND: CITY WEST PTY LTD
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 13 JUNE 1996
REASONS FOR JUDGMENT
Background
From about August 1994 the applicant, now almost 40, was employed by a company called Prosper Transport Pty Ltd as its Queensland manager. In early 1995 the business run by that company was apparently taken over by the respondent, the head office of which was in Sydney. The applicant continued as the Queensland manager of the business.
The respondent's business was interstate general freight. The applicant's duties with it included not only the paperwork associated with the booking, moving and receiving of freight but also loading and unloading of trucks, forklift operating and the generation of business. For all but three weeks of his employment, he was the only Queensland employee.
The applicant and respondent both appeared unrepresented at trial.
The applicant's case was that he was paid fortnightly. His pay was paid direct into a bank account. He discovered soon after 14 July 1995 that he had not been paid for the fortnight ending on that date. He tried contacting the respondent's Sydney office to find out what had happened, without initial success. Eventually, on 20 July 1995, he learned from one of the respondent's directors, a Mr Leslie, that he had been dismissed, allegedly "over some welders which had gone missing". Soon after, he brought proceedings in this court.
Issues
The respondent's case was that its Brisbane operation was losing money. The applicant, it said, was told on one of Mr Leslie's visits to Brisbane, on 21 June 1995, that the Brisbane depot was to be closed. The respondent further claimed that the applicant received two weeks' pay in lieu of notice, and one week's holiday pay owing, soon after.
The applicant denied that Mr Leslie had told him of the imminent closing of the depot, on his 21 June Brisbane visit. His evidence was that on that visit, as a result of freight movements having slowed, Mr Leslie told him to go out and sell (meaning attract more business), and hand over the day to day operation of the depot to someone else. This he did. To assist at the depot, he took on a Mr Morton.
Mr Leslie did not give evidence before me. A Mr Prosper, who appeared for the respondent and described himself as its manager, and who was one of its witnesses, told me he was aware of Mr Leslie's current whereabouts. Mr Leslie was no longer a director of the respondent.
The respondent produced no records of the alleged payments to the applicant of pay in lieu of notice, and holiday pay.
In response to a question from me, Mr Prosper admitted that no one in the respondent's management ever discussed with the applicant the plan to close down the business prior to that allegedly taking place, that is not prior to Mr Leslie's alleged discussion with the applicant on 21 June 1995.
The direct evidence in support of the claim that the Brisbane business was losing money was Mr Prosper's assertion of that fact. The applicant appeared to accept that to be the case. I accept Mr Prosper's evidence on this aspect only.
I find that Mr Leslie relied on a spurious reason, namely the alleged missing welders, to terminate the applicant's employment. The respondent had available to it a valid reason to dispense with the applicant, based on its operational requirements, had it chosen to avail itself of it. It was obliged also to accord the applicant procedural fairness in the manner of his termination.
On any view of the evidence, the applicant was not fairly treated in the manner of his termination. Even in the case of an unprofitable business, an employer has an obligation to consult with, and inform, his employees of the position so far as it might impact on their continued employment. Such consultation must allow an employee a reasonable time within which to make other employment plans. The termination in this case was unlawful.
Remedy
One difficulty in this case is to determine the appropriate remedy. The applicant asserted that the Brisbane depot was still receiving freight up until mid July 1995. The respondent claimed it engaged an agent in Brisbane to do all its deliveries, from the time of Mr Leslie's visit on 21 June 1995. It appears to be common ground, at least, that the responsibility for operating whatever freight the respondent handled in Brisbane fell to another. I prefer the applicant's evidence on this issue, and generally, unless otherwise indicated.
In his address the applicant put to me that he ought to have been given the opportunity to take on the role which the agent now handling the respondent's business in Brisbane has been doing since mid July 1995. He also sought reinstatement.
These issues were never really explored at trial. The onus of proving the impracticability of reinstatement rests on the respondent. While it did little more than assert that there was no longer a job for the applicant to fill, I am satisfied that reinstatement is impracticable. As I previously indicated, I accept Mr Prosper in his assertion that the Brisbane end of the business was losing money, and alternative arrangements were made to have that end taken over by an agent. That agency relationship apparently continues today.
The applicant submitted that he had arranged his personal affairs in the expectation of long term employment with the respondent. I have doubts about how realistic this expectation was. The applicant had been asked to chase, and was chasing, business. His employment was, with the respondent's predecessor about seven months, and with the respondent, about four months, neither being lengthy periods.
At termination, the applicant was being paid $40,000 gross per annum, and a car allowance of $7800 gross per annum. Since termination, he has earned by way of remuneration about $10,000 gross, to the date of trial. These earnings appear to be from self-employment in the transport industry.
I consider that appropriate compensation is the equivalent of three weeks' remuneration. In my view the respondent ought to have informed the applicant of its decision to reorganise its business, and allowed him this period within which to make his own arrangements for finding suitable alternative employment.
The applicant claimed also for other losses. I propose to allow his claim for unpaid wages between 1 July and 20 July 1995 (both dates inclusive), and one week's holiday pay. The applicant claimed also that he had signed, in his own name, a lease of premises from which the business of the respondent's predecessor, and subsequently the respondent, was conducted from late January 1995. I am not satisfied that this claim, in the associated jurisdiction of the court, arises from a substratum of facts common to the termination of employment claim - Moorgate Tobacco Co Ltd v Philip Morris (1980) 145 CLR 457; likewise, with the applicant's claim for reimbursement for wages he claimed to have paid Mr Morton (who assisted at the depot from late June 1995) on his employer's behalf.
I decline to deal with these two claims. The applicant is at liberty to pursue them elsewhere.
Generally
This case has occasioned me more difficulty than it ought, the quality and paucity of evidence from both parties being the cause. I have had to piece together what was an altogether incomplete picture. If neither party is content with the result, it is clear where the blame lies.
Orders
I order that:
The application be allowed.
The respondent pay the applicant the sum of $2757.69 compensation within 14 days of today.
The respondent pay the applicant the sum of $3276.22 unpaid wages and holiday pay within 14 days of today.
I certify that this and the preceding four (4) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 13 June 1996
Appearing for the Applicant: In person
Appearing for the Respondent: Mr Prosper (manager)
Date of hearing: 22 May 1996
Date of judgment: 13 June 1996
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