Brett John Francis and Reclaim Resources
[1994] IRCA 166
•17 November 1994
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 115 of 1994
B E T W E E N: BRETT JOHN FRANCIS
- Applicant
and
RECLAIM RESOURCES
- Respondent
BEFORE: JUDICIAL REGISTRAR FARRELL
DATE:17 NOVEMBER 1994
PLACE: PERTH
REASONS FOR JUDGMENT - EX TEMPORE - REVISED FROM THE TRANSCRIPT
This is an application pursuant to s.170EA of the Industrial Relations Act 1988, the applicant seeks an order requiring the respondent to reinstate him and to pay him compensation.
The applicant was at the time of his termination 26 years old and a truck driver. He had been employed by the respondent from early January 1994 until 18 April 1994. Evidence was given in the case by the applicant, by a manager, Mr Winner, and by the general manager, Mr Curry. The applicant's employment was terminated on 18 April because the applicant had failed to follow instructions given to him that day.
On that date he had commenced his duties at 8 am. In the course of the day he had driven to Wongan Hills Abattoirs where he experienced difficulty loading offal as a result of problems with a hopper. Following those difficulties he made contact with his employer in Perth and was given instructions by telephone as to how to deal with the loading difficulty. The applicant was unable to fix the problem.
There is only one significant factual dispute between the parties and that is in relation to what the applicant was told by telephone to do upon leaving Wongan Hills.
The applicant says he was told to go to Tammin and then to call. The respondent says he was told to go to Tammin and then to call and then return to Wongan Hills. All witnesses gave their evidence in a credible manner. However, the applicant's conduct following the telephone call is consistent with his evidence that he was not told to return to Wongan Hills or, at the very least, did not know that he was to return to Wongan Hills. It is also consistent with the employer's stated view that the applicant had been a good employee and had been keen to do overtime.
It is important to mention here that the applicant did not make the telephone call from Tammin as requested to. His evidence was that he asked the manager when he arrived at Tammin if he could use the telephone when he had finished doing his work. However, by the time he had finished doing the work at Tammin the office was locked and he was unable to find anyone who could unlock it so that he could use the phone. The applicant later made contact with the respondent while driving back through the Perth foothills.
He agreed under cross-examination that the time he made contact with them was at about 7.40 pm. At that time he was told to return to Wongan Hills and to pick up the load of offal that he had been unable to load earlier in the day and bring it back to Perth. He refused to do so. On his return to the respondent's premises he was summarily dismissed. The general manager of the respondent, Mr Curry, gave evidence that the minimum additional time it would have taken the applicant to return to Wongan Hills and then back to Perth would be approximately 4 hours. The applicant gave evidence that it could take a considerably longer period of time depending on what truck was used.
In my view, the employer's request was both unlawful and unreasonable. The termination of the applicant's employment was both substantively and procedurally unfair. To require the applicant to work a shift of at least 16 hours, having advised him only when he had already worked 12 hours was both unlawful and unreasonable. I find that the dismissal was harsh, unjust and unreasonable in accordance with the Act.
The respondent presented only scant evidence as to why the applicant should not be reinstated. It was acknowledged by the respondent's witnesses that the applicant was a good worker. Under the Act reinstatement is the preferred remedy and in the circumstances of this case it is practicable.
I order that the respondent reinstate the applicant in his former position as from Monday, 21 November 1994 and that the respondent do pay to the applicant the remuneration lost by the applicant because of the termination.
Now if there is any dispute about the amount of the remuneration to be paid by the employee or any other matter that arises, I give the parties liberty to apply.
I certify that this and the 3 preceding pages are a true copy of the reasons for judgement of Judgicial Registrar Farrell.
Associate:
Date:
Applicant: Mr A Castigleone
Respondent: Mr P Brunner
Date of hearing: 17 November 1994
Date of Judgment: 17 November 1994
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 115 of 1994
B E T W E E N: BRETT JOHN FRANCIS
- Applicants
and
RECLAIM RESOURCES
- Respondent
MINUTES OF ORDER
BEFORE: JUDICIAL REGISTRAR FARRELL
DATE: 17 NOVEMBER 1994
PLACE: PERTH
THE COURT ORDERS THAT:
The termination of the applicant's employment by the respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
The applicant be reinstated to his former position as from 21 November 1994.
The respondent to pay the applicant the renumeration lost by the applicant because of the termination of his employment.
The parties to have liberty to apply if any dispute arises concerning the amount of renumeration lost by the applicant.
NOTE:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Rules
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - failure to follow instruction - whether instruction lawful and reasonable - whether reinstatement practicable.
Industrial Relations Act 1988 s.170EA
Before: Farrell JR
Place: Perth
Date: 17 November 1994
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