Brett Leon McGuire v P a Thomson

[1995] IRCA 544

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
  TI 1130 of 1995


B E T W E E N:

Brett Leon MCGUIRE
Applicant

A N D

P.A. THOMSON
Respondent

Before:       Judicial Registrar Parkinson
Place:         Hobart
Date:          29 September 1995

REASONS FOR DECISION
 - delivered ex tempore

This is an application made pursuant to S170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent as a brickie’s labourer and was employed on a daily hire basis pursuant to Clause 8.2 of the National Building and Construction Trades Award (the Award). He was employed from October 1994 until the date of the termination on 5 June 1995.

The applicant was employed in the bricklaying side of the respondent’s building operations. The evidence of the respondent is that he was employed together with a bricklayer, Mr Hutchins, and that this employment was originally brought about as a result of his having a history of working with Mr Hutchins as his labourer on jobs.  The applicant’s evidence was not in substance in contradiction to this, although it is clear on the evidence, and is not contested,  that it was the respondent and not Mr Hutchins who employed the applicant. The applicant was paid each Friday on a weekly basis by the respondent and his hours of work varied between 1.5 days to more than 60 hours per week. Overall the evidence satisfies me that he was in receipt of an average of five days pay per week and that this was the sum of $550.00 per week (Exhibit A1).

The evidence was that the respondent terminated the applicant’s employment as a result of the termination of Mr Hutchin’s employment.  This, it was said by the respondent, resulted in there being a labourer in excess of the respondent’s requirements. Consequently the respondent decided that the applicant was the appropriate person to select for redundancy. Whilst the evidence is that the respondent subsequently only engaged two bricklayers and one labourer, and has recently ceased to employ any in that section of his business, I am not satisfied that there is any evidence to establish that the operational requirements led to this occurring.  The respondent’s evidence was that he had decided that the business was not cost effective enough, but no evidence was led to satisfy me that this was the case in light of the evidence as to the ongoing operation of the business. Further, the evidence of the respondent was that he took a decision to cease to employ all persons in the bricklaying section of the business only as a result of these proceedings.

There was no evidence before the court that established that it was an operational requirement of the respondent that the applicant’s employment be terminated when Mr Hutchins left the employ of the respondent.  There was no evidence that the level of work of the respondent had reduced, or that there was no alternative work available upon which the applicant could have been engaged.  Further, the evidence was that at or after the termination of the employment of the applicant the respondent entered into sub-contract agreements with up to seven bricklayers, who in turn themselves engaged labourers, to work on sites being contracted by the respondent. 

There is no evidence in a decline of work being done by the respondent. There is no evidence to satisfy me that the termination of the employment was for any other reason than the fact that the employment of Mr Hutchins had been terminated. This is not a valid reason for the termination of the applicant’s employment.

Whilst I appreciate that there is in the building industry a custom and practice of engaging labourers who are acceptable to bricklayers, or even requested by them, this does not remove from the employer the obligation to comply with the provisions of this Act, nor does it create a separate underclass of employees who are denied protection against unlawful termination of their employment merely because there is a hiring practice which is tied to the interests of another employee. In fact, the Award suggests to the contrary as it prohibits at Clause 8.2 termination of employment which is harsh, unjust or unreasonable. Whilst the operation of that provision is limited to persons in classifications covered by Clause 9.1(a) and (b), I am satisfied that the applicant fell within that category of employees classified therein, in particular at Clause 9.1(b). 

Although not articulated by either counsel in this proceedings, this in my view was the substance of the case being run for the respondent before me in these proceedings. I do not accept that this approach is either appropriate or according to law. 

Further, whilst I am satisfied that the applicant was employed on a daily hire basis pursuant to the Award, and that there may well be circumstances where  particular award-endorsed or prescribed hiring practices should be taken into account in determining matters such as these,  I have had regard to the Award and there is nothing in the provision for engagement in Clause 8.2   that provides for termination of employment of a brickie’s labourer merely as a consequence of the termination of the employment of the bricklayer.

I am not satisfied that the respondent had valid reason to terminate the employment of the applicant. I find therefore that the respondent contravened S170DE(1) of the Industrial Relations Act 1988. I briefly turn now to consider the operation of S170DE(2).

S170DE(2)

Whilst unnecessary in view of my earlier finding in relation to valid reason, I observe in relation to S170DE(2) that the evidence establishes that there was no consideration given by the respondent to any alternative position for the applicant, nor was there any discussion with the applicant as to alternatives to the termination of his employment, and there was no forewarning. In view of there being on the evidence a number of ongoing projects being worked by the respondent during and after the time of the termination of the applicant, I am satisfied that it was unreasonable of the respondent not to give consideration to finding,  or making any attempt to find, alternative work for the applicant, even with another of the bricklayers engaged on the site then, or intended to be engaged for subsequent projects. I refer also to my earlier observations in this decision to the applicable award. For the above reasons I am satisfied that the termination of the applicant’s employment was harsh, unjust and unreasonable.

In view of my findings, I turn now to consider the question of remedy.

S170EE - Remedy

The applicant has not been regularly employed since the termination of his employment.  His evidence was that he was in receipt of approximately 20 days work during the period to the date of this decision.  His evidence was further that he had an expectation of shortly commencing regular full time work with Mr Hutchins, the bricklayer with whom he had previously worked. The evidence is that the respondent no longer engages labourers as employees, but rather via a subcontract arrangement for the reasons discussed earlier. This of itself does not however make an order for reinstatement impracticable. In the circumstances, however, in view of the applicant’s evidence as to impending employment, and the employment with the respondent being daily hire of uncertain duration,  I am of the view that an order for reinstatement would be impracticable.

I turn therefor to consider the issue of compensation.

Whilst counsel for the applicant submitted that the best method of establishing the likely length of the ongoing employment with the respondent is to look at the history of the actual employment, I am of the view that there are also other matters to be taken into account. They include the manner in which the applicant was hired, the manner in which his employment was terminated, the loss of regular and ongoing employment, the length of the employment to the date of termination and the reasonable expectations in relation to the ongoing employment. The evidence was that the applicant was a good employee and that there were no difficulties with the applicant’s work performance or attendance whilst he was in the employ of the respondent. 

Having regard to the application of the award termination provisions, and in view of the ongoing work of the respondent, notwithstanding that the employment was daily hire, I am satisfied that the applicant could have had a reasonable expectation of the employment continuing with the respondent and that it was likely to continue at least until the respondent reorganised the manner in which he performed the bricklaying work. This from the evidence apparently occurred some time after 5 July 1995.  The applicant’s evidence that he expected that he would be dismissed because the bricklayer was dismissed is not entirely to the point when considering what objectively was likely to be the length of the employment in circumstances where it was terminated lawfully.  The compensation ordered also includes an aspect of compensation for the lost opportunity for ongoing employment with the respondent.

I am satisfied that the applicant is entitled to an amount of compensation in the sum of $2,000.00. That sum is a gross amount and represents an amount of four weeks gross pay, which in my view is reasonable compensation in this matter. I do not deduct from that amount any sum for earnings by the respondent during the period after the termination and, in view of there being no order for reinstatement and thus no order for lost remuneration, I do not deduct any amount from the compensation ordered as a consequence of any social security benefits received in the period. 

The orders of the court shall be:

1. That the termination of the applicants employment by the respondent
   contravened S170DE(1) and (2) of the Industrial Relations Act 1988.

1. That the respondent pay to the applicant compensation in the sum of
            $2,000.00 within 21 days of this order.

I certify that this and the preceding 6 pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate:
Date of Judgment:
Place of Judgment: