Blundell v Islander Resort Hotel
[1996] IRCA 354
•30 July 1996
DECISION NO: 354/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION - VALID REASON - REDUNDANCY - PERIOD OF NOTICE
INDUSTRIAL RELATIONS ACT 1988 , s170EA, ss170DE (2)
Bunnett v Henderson’s Federal Spring Works Pty Ltd (1989) AILR 356
Kenefick & Ors v Australian Submarine Corporation Pty Ltd
Full Court of IRCA 26 March 1996, unreported
Wynn’s Winegrowers Pty Ltd v Foster (1986) 16IR 381 at 384
WAYNE BLUNDELL -v- ISLANDER RESORT HOTEL
QI 95/1403
BEFORE: BOULTON JR
PLACE: ROCKHAMPTON (HEARD IN BRISBANE)
DATE: 30 JULY 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1403
QUEENSLAND DISTRICT REGISTRY
BETWEEN WAYNE BLUNDELL
Applicant
AND: ISLANDER RESORT HOTEL
Respondent
BEFORE: BOULTON JR
PLACE: ROCKHAMPTON (HEARD IN BRISBANE)
DATE: 30 JULY 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application be allowed.
The respondent pay to the applicant the sum of $1269.23 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 95/1403
QUEENSLAND DISTRICT REGISTRY
BETWEEN: WAYNE BLUNDELL
Applicant
AND: ISLANDER RESORT HOTEL
Respondent
BEFORE: BOULTON JR
PLACE: ROCKHAMPTON (HEARD IN BRISBANE)
DATE: 30 JULY 1996
REASONS FOR JUDGMENT
Background
During the proceedings, I gave the applicant leave to amend the name of the respondent to read Warwick Bannister Tate.
The applicant took up employment with the respondent as its maintenance manager at the Islander Resort Hotel, Surfers Paradise, on 27 February 1995. Apart from the Islander Resort, the respondent operates a further hotel on the Gold Coast, the Park Regis, and one in Sydney.
The applicant is now aged 41, having been born on 14 March 1955. He is a qualified electrical contractor, and also a refrigeration and air-conditioning mechanic.
On 15 November 1995, the respondent terminated the applicant's employment, claiming that his position was redundant.
Issues
The contest at trial was primarily about whether or not this was a genuine redundancy case. On behalf of the applicant, it was asserted that the respondent had, in truth, terminated his employment for a reason proscribed by para 170DF(1)(e) of the Industrial Relations Act 1988, namely, recourse by the applicant to competent administrative authorities over the respondent's alleged lack of training of some Aboriginal trainees on its staff. I reject this submission. I am satisfied that the respondent has proved that the applicant's employment was not terminated for that particular reason.
Alternatively, the applicant asserted that the termination of his employment was unlawful because there was, in truth, no redundancy. This was put on the basis that the respondent had failed to prove that the job formerly performed by the applicant was no longer required to be performed by anyone. I think this is met by referring to the statement in Bunnett v Henderson's Federal Spring Works Pty Ltd (1989) AILR 356:
Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others.
I am satisfied that, subject to subsection 170DE(2) of the Act, the respondent has proved there was a valid reason for the termination of the applicant's employment based upon the operational requirements of its business, the applicant's position having been made redundant. The character of the respondent's maintenance cell changed after the applicant's termination. His technical qualifications were no longer required in-house. The salary paid to the employee who took over some of the applicant's former duties was significantly lower than that paid to the applicant. This is not a case of a choice being made between equally qualified persons for the position.
Further, section 170DC is irrelevant in the present circumstances. The applicant's employment was not terminated for reasons related to his conduct or performance - Kenefick & Ors v Australian Submarine Corporation Pty Ltd Full Court of IRCA 26 March 1996 unreported.
Turning now to whether or not the termination was harsh, unjust or unreasonable, it was common ground that, in early November 1995, the question of the restructuring of the respondent's maintenance department was raised with the applicant. Specifically, he was told his job was on the line and he should put up any options for consideration of management. This he did in a memo on 13 November 1995. The respondent then took the decision to terminate his employment, notifying the applicant of that on 15 November 1995. The applicant was given 1 week's pay in lieu of notice, and holiday pay entitlements.
I am satisfied that the applicant's termination may properly be characterised as harsh, unjust or unreasonable because of the length of notice given to him - Wynn's Winegrowers Pty Ltd v Foster (1986) 16 IR 381 at 384. He was a well-regarded employee about whom his employer had no complaints. He had received a healthy pay rise during his short employment with the respondent. According to a Mr Ragg, presently General Manager of both the respondent's Gold Coast hotels, there had been consideration of the maintenance department's payroll expenses (and by implication possible restructuring of it) for 3 or 4 weeks prior to late October 1995. The respondent ought reasonably, in my view, to have given the applicant 3 weeks’ notice, or pay in lieu, before the termination of his employment was effected.
The applicant's gross salary at termination was $33,000 per annum. I fix appropriate compensation in the sum of $1269.23, being the equivalent of 2 weeks’ additional pay in lieu of notice.
I order that:
1.The application be allowed.
2.The respondent pay to the applicant the sum of $1269.23 within 14 days of today.
I certify that this and the preceding two (2) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 30 July 1996
Appearing for the Applicant: Mr Lee
Solicitors for the Applicant: Warren Lee & Co
Counsel for the Respondent: Mr Horneman-Wren
Solicitors for the Respondent: Goss Downey Carne
Date of hearing: 27 June 1996
Date of judgment: 30 July 1996
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