CATUSAustralian National University and ALHMWU v Ray's Guard Security Services Pty Ltd
[1997] IRCA 228
•29 July 1997
DECISION NO:228/97
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - CASUAL EMPLOYMENT - VALID REASON - DISCRIMINATION - ONUS OF PROOF - applicant dismissed after letter of demand alleging BREACH OF AWARD - whether UNION MEMBERSHIP a reason for dismissal - whether registered organisation is a “competent administrative authority” - whether letter of demand from a REGISTERED ORGANISATION was recourse to competent administrative authority - OPPORTUNITY TO RESPOND - REMEDY - COMPENSATION.
Workplace Relations Act 1996 (Cth) ss 170CK, 170CR, 170DC, 170DE, 170DF, 170DG, 170EA, 170EDA, 170EE, 178, 469.
Workplace Relations Regulations Reg 30B
Termination of Employment Convention, 1982
Reed v Blue Line Cruises Ltd (unreported, Industrial Relations Court of Australia, Moore J, 26 November 1996)
Johns v Gunns Ltd (1995) 60 IR 258
Stojanovic v The Commonwealth Club Ltd (unreported, Industrial Relations Court of Australia, Moore J, 8 December 1995)
Bowling v General Motors Holden Pty Ltd (1975) 8 ALR 197
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 606
Burcombe v Oldham (unreported, Industrial Relations Court of Australia, Marshall J, 3 December 1996)
Andersen v Umbakumba Community Council (1994) 1 IRCR 457
Mohazab v Dick Smith Electronics Pty Ltd (No.2) (1995) 62 IR 200
Grout v Gunnedah Shire Council (No.1) (1994) 1 IRCR 143
Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1995) 63 IR 1
Burazin v The Blacktown City Guardian (1996) 142 ALR 144
CATUSANU & ALHMWU - Miscellaneous Workers Division
v RAY’S GUARD SECURITY SERVICES PTY LTD
VI 1039 of 1997
Before: MURPHY JR
Place: MELBOURNE
Date: 29 JULY 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1039 of 1997
BETWEEN:
STALIEN CATUSANU
Applicant
ALHMWU - MISCELLANEOUS WORKERS DIVISION
Applicant
AND
RAY’S GUARD SECURITY SERVICES PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 29 JULY 1997
MINUTES OF ORDERS
ORDER:
The Court declares that the respondent has breached ss 170DC, 170DE(1) and 170DF(1) of the Workplace Relations Act1996 (Cth);
The Court orders the respondent pay to the applicant the sum of $13,000.
The respondent may offset against the sum in paragraph 2 hereof any amounts remitted to the Australian Taxation Office on the applicant’s account.
Note:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1039 of 1997
BETWEEN:
STALIEN CATUSANU
Applicant
ALHMWU - MISCELLANEOUS WORKERS DIVISION
Applicant
AND
RAY’S GUARD SECURITY SERVICES PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 29 JULY 1997
REASONS FOR DECISION
This is an application for a remedy pursuant to s 170EA of the Workplace Relations Act 1996 (Cth) (“the Act”). The first applicant (“the applicant”) alleged that his employment as a security patrol officer with the respondent was unlawfully terminated on 17 December 1996. He alleged that the respondent contravened ss 170DC (opportunity to respond), 170DE(1) (valid reason), and 170DF(1) (proscribed reason) of the Act.
The issues to be determined were threefold. The first went to jurisdiction. The respondent alleged that the applicant was a casual employee and thus excluded from the protection of Part VIA of the Act under Regulation 30B of the Workplace Relations Regulations. The second and third issues related to the reasons for the applicant’s termination. The applicant alleged that the reasons for his termination included two reasons that were proscribed under paragraphs 170DF(1)(b) and (e) of the Act. The reasons alleged were respectively union membership, and the filing of a complaint against the respondent. The respondent disputed that these reasons were included in its reason for termination. It maintained that it had a valid reason for the applicant’s termination based on a catalogue of performance deficiencies that was putting its business in jeopardy. The applicant denied that the respondent had any basis to dismiss him on performance grounds.
Background.
At relevant times the respondent had about six employees and operated in the security industry. Its principal business was a licence agreement (Exhibit R1) with Wormald Security (later known as Chubb), to perform the patrols on a number of security rounds.
The applicant was employed after responding to an advertisement placed at the CES. He was employed as a casual patrol officer. He commenced work on 23 May 1996 and was placed on three months probation. Mr Raymond Bastian, a director of the respondent, trained the applicant for a period of about two weeks. He was paid $8 per hour for his training period. At the end of this period his pay was increased to $11 per hour. At the end of the three month probation period the wage was increased to $12 per hour. At first the applicant would be contacted to be advised when to work and was later placed on a roster. After his training period the applicant worked seven days per week for two and one half months. Wage records (Exhibit R12) indicate that the applicant regularly worked sixty hours per week.
Jurisdiction - was the applicant excluded as a casual?
It is convenient to consider this issue at this stage. The evidence was that the applicant and all the other security patrol officers, were described in the respondent’s documents as “casual patrolmen”. They were paid at the same rate. The applicant gave evidence that he was told by Mr Bastian that if he was pleased with his work he could work for the respondent for one to three years, as long as the business was continuing. The applicant’s evidence was that he was engaged to work on a particular round and that there was no indication as to “the time frame it would continue for”.
A number of rosters were placed in evidence (Exhibit A3). The rosters, particularly in the early stages, were often modified because of shortages of staff. One of the rosters in evidence is marked “temporary roster till new persons employed and trained”. The applicant gave evidence that he was asked to take extra shifts and he did so. Mr Bastian told the applicant that he intended to employ other staff so that a proper roster could be prepared. On 4 October there is an entry in Mr Bastian’s diary (Exhibit R10): “New Roster start”.
The respondent argued that the applicant was a casual employee and excluded under Reg 30B. The representative of the applicant submitted that the evidence showed that the nature of the applicant’s engagement was not casual and thus he was not excluded under Reg 30B.
The construction of the term “casual employee” has been considered in Reed v Blue Line Cruises Ltd (unreported, Industrial Relations Court of Australia, Moore J, 26 November 1996) where Moore J said:
“In my opinion, what is intended by Article 2(2)(c) is that the regime embodied in the [Termination of Employment] Convention should not apply to employment where the employment is known to the parties at the time of engagement to be informal, irregular and uncertain and not likely to continue for any length of time. It is accepted that it would not be reasonable to impose that regime on employment of that character.
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.
........ ..
In my opinion, a casual employee for the purposes of Reg 30B is an employee who is, from time to time offered employment for a limited period on the basis that the offer of employment might be accepted or rejected but in circumstances where it could be expected that further employment of the same type would or might be offered and accepted but there was no certainty about the period over which it would continue to be offered.”
In Burcombe v Oldham (unreported, Industrial Relations Court of Australia, Marshall J, 3 December 1996) Marshall J followed Reed and noted that the issue is whether the employee is engaged on a casual basis. There he looked at the hours of work, and the fact that the employment was specifically terminated as considerations, in the totality of the relationship, as to whether the employee was a casual, or a regular part-time, employee.
Applying the evidence here to the test in Reed the applicant was not a casual employee. The description of the applicant as a casual patrolman in the respondent’s documents is not determinative. The rosters, the extensive hours worked and the comments by Mr Bastian as to the duration of the applicant’s employment satisfy me that the employment here lacked the informality, uncertainty and irregularity that usually characterises casual employment. The applicant is not excluded under Reg 30B(1).
The applicant’s performance.
There was extensive evidence as to a number of specific incidents that occurred in the course of the applicant’s employment. Mr Bastian’s evidence was that as various matters about aspects of the applicant’s duties were brought to his attention, usually as a result of a facsimile from the licensor (Exhibit R9), he raised them with the applicant. Mr Bastian recorded details of a number of these discussions with the applicant in his diary.
On 14 August Mr Bastian raised with the applicant an incident regarding a private hospital. Mr Bastian recorded in his diary (Exhibit R10) “unacceptable response”. In late September Mr Bastian received a complaint about a door being left open at the Department of Defence in Highett. He had queried the applicant and advised him that there had been too many complaints, and that possibly the applicant could lose his job if there were further complaints. In mid October there was a complaint about abusive language over the radio. On 17 October Mr Bastian advised the applicant to “stop immediately any abusive language”.
In late October there were a number of complaints about the level of service at the Brighton Cemetery. Mr Bastian himself attended on one evening to ensure that the buildings were properly inspected. He told the applicant he would have to pick up his performance. On 8 November he received a facsimile from his licensor again raising problems with the level of service.
On 10 November Mr Bastian received a facsimile regarding the Optus Bentleigh site. The facsimile related to an incident where the applicant had been unable to locate the keys to access the site, and had later been uncontactable for a period. The applicant was asked about the matter by Mr Bastian. He advised him that he did not know where the keys were and could not explain why the control room had been unable to locate him. Mr Bastian recorded in his diary on 12 November: “maintained to him far too many complaints. Not acceptable.”
The straw that broke the camel’s back was a complaint from the Department of Health and Community Services. It had complained of squatters in premises. The applicant had not seen them. Mr Bastian told the applicant: “This is the last, I can’t bear it.” The applicant’s response was “bureaucratic bullshit”. Although Mr Bastian recorded that on 12 November he spoke to the applicant about the Optus facsimile, he made no such notation in relation to this matter.
The applicant’s account contrasted sharply with that of Mr Bastian. He admitted that various operational matters were raised with him but gave explanations as to what had happened. For example, in relation to the Brighton Cemetery round he said that the procedure required by the client had changed three times. In relation to the Optus site he maintained that he had never been shown over the site. When he had been called to an alarm he had contacted the control room to ascertain the codes and how to obtain access to the site. His response is recorded in handwriting on the facsimile. The applicant denied that he had engaged in abusive language over the radio. In relation to the Health and Community Services building, he said he had not been told to patrol the building. Mr Bastian had accepted his explanation.
Many of the explanations given by the applicant, of their nature, could not be corroborated. What must be noted however is that over this period the applicant completed his three months probation, had his wage rate increased, and worked long hours. Contrary to what is recorded in his diary, I am satisfied that at no time did Mr Bastian indicate to the applicant that he was on anything approaching a final warning in relation to his performance. Rather I accept the applicant’s evidence that the explanations given by him at the time were accepted by Mr Bastian and the various matters left at that.
Circumstances of the termination.
The applicant worked a period of nightshift ceasing at about 8.00 am. on Friday 15 November. He attended at Mr Bastian’s house and in a conversation with Mr Bastian sought and was granted four days off to see his mother. He had discussed this about two weeks earlier. Mr Jiggins, another employee, was also present. Mr Bastian told them both that he was happy: because of their good work he would be getting two more rounds and he would be able to employ other staff. Mr Jiggins corroborated this conversation. Mr Bastian denied that he told the applicant and Mr Jiggins that they were working well. He merely said that he was expecting more work. He said that the upon receipt of the facsimile dated 10 November regarding the Optus site he decided that the applicant had to go. In cross-examination Mr Bastian said that he had decided to terminate the applicant’s employment about two weeks before he actually did so. He formed the view he was in danger of losing his contract with Chubb.
On 19 November the applicant received a letter from Mr Bastian dated 17 November (Exhibit R11) telling him that his services were terminated. The letter read:
“Following the completion of your probationary period with my Company I wish to advise you of notification of one week’s notice of termination of employment.
My decision has been based on the following:-
1.Repeated complaints from clients stating inspections are not being carried out in according with their instructions.
2.Several complaints from Chubbs employees stating offensive language being used.
3.The company mobile phone being used for extremely large amounts of your personal phone calls which as you are aware is totally against company policy. The cost of these personal phone calls will be your responsibility as per company policy.
Should you wish to discuss this matter further please do not hesitate to contact me.”
Mr Jiggins, a fellow employee, said that he had a conversation with Mr Bastian after the applicant’s employment had been terminated. During the conversation Mr Bastian said that the applicant was no longer employed and “you do not need to know the reasons why”.
The applicant’s union involvement.
The applicant gave evidence that at one stage early in his employment he was talking to Mr Bastian who mentioned an employee who had been a troublemaker. The employee had raised questions about an industrial award with Chubb and with the union. Mr Bastian told the applicant that the employee had been sacked. He asked the applicant if he was in the union. The applicant said he was not. In cross-examination Mr Bastian was unable to recall this conversation. When the applicant was cross-examined, it was put to him that the discussion had been about an employee whose employment had been terminated because he had not renewed his licence. The applicant denied that this was the conversation.
The applicant joined the second applicant (the union) in August. Three other employees, Messrs Crawford, Jiggins and Sebastian, were also members. Mr Sebastian took up with the union the question of underpayment of wages. The matter was handled by a Branch Organizer, Mr Geoff Beckman. He had a number of meetings with the men to calculate their entitlements, and advised them to maintain secrecy about the matter until the union had sent a letter of demand on their behalf.
The letter of demand and its aftermath.
On 15 November the union forwarded a letter of demand (Exhibit A5) to the respondent. It alleged underpayment of wages and other entitlements under the relevant award and threatened proceedings under the Act. The amounts claimed were $9,968 for the applicant, $2,100 for Mr Crawford (who had ceased employment on 19 October), $3,000 for Mr Jiggins, and $9,656 for Mr Sebastian. On that day Mr Beckman had a conversation with Ms Judy Bastian. He sent her a facsimile copy of the letter at 1.25 pm.
By letter dated 15 November (Exhibit A6) Mr Sebastian was given one week’s notice. No reason was given. He had not been at work since 28 October. At that time he had told Mr Bastian he had an ankle injury. A couple of days later Mr Bastian had seen him working at a service station. There was a brief conversation and Mr Sebastian told Mr Bastian that at that stage he didn’t think the ankle would be able to take the strain of working for the respondent.
Mr Jiggins gave evidence that on 16 or 17 November he was due to start work at 4.00 pm. He was called to see Mr Bastian. Mr Bastian told him he was disappointed that his name was on the letter from the union and asked whether he intended to take any further action. Mr Jiggins replied that the matter was out of his hands. Mr Bastian told him that if he took any further action he would have no future in the industry. Mr Jiggins then asked if he was going to be sacked. Mr Bastian replied that there was no reason to dismiss anyone as “everyone was working to a high standard”.
Onus of proof and the reasons for termination.
The onus of proof plays an important role in the findings necessary to apply the facts of a proceeding to the provisions of the Act. The reasons for the termination are, in a number of ways, central to the resolution of this proceeding. First, the reasons for termination are solely within the employer’s knowledge. It thus carries an evidentiary onus on that matter. This is linked to s 170DC of the Act which requires the employer to afford the employee the opportunity to respond to “allegations” that form the basis of the termination. Further, under ss 170EDA(1) and 170DE(1) the employer carries the onus of proof that it had a valid reason to terminate.
Finally, under ss 170EDA(2) and 170DF(1) the respondent must not terminate employment for a reason that includes a particular reason alleged under s 170DF(1). The relevant provisions are:
“170EDA(2) If an application lodged under section 170EA alleges that a termination of employment of an employee contravened subsection 170DF(1) on the ground that the termination:
(a)was for a particular reason or reasons referred to in that subsection that were stated in the application; or
(b)was for reasons stated in the application that included a particular reason or reasons referred to in that subsection;
the termination is taken to have contravened subsection 170DF(1) unless the employer proves, in any consent arbitration arising from the application or in any proceedings arising on the referral of the application to the Court, that:
(c)the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reason; or
......”
“S 170DF(1) An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
....(b) union membership or participation in union activities outside working hours, or with the employer’s consent, during working hours;
.....
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;”
What was the reason for the applicant’s dismissal?
It is now necessary to make findings on the reasons for the applicant’s termination. According to Mr Bastian the applicant was dismissed for the reasons set out in the letter of termination. In early November he was fearful that as a result of the applicant’s poor performance he would lose his licence agreement with Chubb and took action accordingly.
There are a number of things that can be said about this evidence. First the letter of termination itself refers to “the completion of your probationary period”. As at the date of the letter the applicant had completed his probationary period some three months earlier. Further, as I have indicated, he had been working some sixty hours per week.
Next, the date of the termination letter was not satisfactorily explained by the respondent. Mr Bastian shifted in his evidence as to when he decided to terminate the applicant’s employment. At first he said it was after the facsimile of 10 November regarding the Optus site. Then he referred to the facsimile from the Department of Health and Community Services received on 11 November. Then he said he had decided a couple of weeks earlier to dismiss the applicant. What is difficult to reconcile with this evidence is why the applicant was permitted to continue working when the alleged performance problems had caused Mr Bastian to reach the conclusion that the applicant had to be dismissed because he was threatening the viability of the business.
More significant is why, on the morning of 15 October, did Mr Bastian grant the applicant four days off to see his mother? If the applicant’s conduct and performance were such that a decision had been taken to terminate his employment, this action is inconsistent with that decision. It is consistent with the applicant’s evidence that he had provided acceptable explanations to Mr Bastian as to the various incidents that had been raised with him. Mr Bastian’s actions are consistent with my earlier finding of his acceptance of the applicant’s explanations, and of the employment continuing.
The evidence regarding the second and third matters listed as reasons in the letter of termination also support this conclusion. Mr Bastian had only discussed with the applicant one incident of alleged bad language over the radio. This had been a month earlier. Mr Bastian claimed that there were other verbal complaints. He admitted he had not raised them with the applicant. The third matter included in the letter was private telephone calls on the mobile telephone. Mr Bastian had never discussed this with the applicant. He gave no explanation why it had not been previously raised with the applicant.
Another matter is the comment made to the applicant and Mr Jiggins on the morning of 15 November. Mr Bastian denied suggesting that he was happy with the performance of both of them. I am unable to accept his evidence on this point. This comment is consistent with Mr Bastian continuing to utilise the applicant’s services. It is also consistent with a comment that Mr Bastian made to Mr Jiggins that there was no reason to dismiss anybody for performance reasons.
Conclusion - the letter of demand precipitated the dismissal.
Mr Bastian denied that there was any connection between the letter of demand and the decision to terminate the applicant’s employment. I am unable to accept this. On the contrary, the letter of demand provides the substantive explanation why the applicant was dismissed on 17 November. There are too many coincidences to avoid this conclusion. Two of the three still serving employees named in the letter of demand were dismissed. The reason proffered in evidence for Mr Sebastian’s dismissal had existed for two weeks prior to Mr Bastian giving him written notice of termination on 15 November. The amount sought for the applicant in the letter of demand was substantially more than that sought for Mr Jiggins, who was not dismissed. There had been no additional performance related incidents between 12 November when Mr Bastian spoke to the applicant, and 17 November when the letter of termination was written. On the contrary, on 15 November Mr Bastian had made a decision to approve the applicant’s period of leave - a decision consistent with the continuation of the employment. Mr Bastian had made a favourable comment about the future based on the performance of all employees, including the applicant. I am satisfied that, even accepting the respondent’s version of the various events prior to 15 November, the applicant’s performance was not the only reason for his termination. Another reason was the receipt of the letter of demand.
Application of the Act - proscribed reason - approach to s 170DF(1).
The application of ss 170DF(1) and 170EDA(2) was considered in Johns v Gunns Ltd (1995) 60 IR 258. There Northrop J was considering a proceeding where the allegation was that the termination was for a reason that included temporary absence from work (s 170DF(1)(a)). He considered that the relevant provisions in the Act were similar to earlier legislative provisions where there was a reversal of the onus of proof. At 267-8 he said:
“In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, those provisions and earlier authorities relating to them were discussed at length and in particular at 266-271. I set out a passage appearing at 268 which has equal application to cases where s 170DF(1)(a) of the Act applies:
"The provisions of s.5(4) of the [Conciliation and Arbitration] Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge."
........
Section 170EDA applies with respect to terminations where the employee alleges there are no valid reasons for the termination under s 170DE(1) as well as to reasons, not necessarily the only reason, prohibited under s 170DF(1). In my opinion, the opening words of s 170EDA(1) are to be construed as meaning that if, upon all of the evidence, the termination is proved, then the employee is entitled to a remedy unless the employer establishes a valid reason or reasons under s 170DE(1)........
For similar reasons, the opening words of s 170EDA(2) are to be given the same meaning. However, a very important result follows. Under s 170EDA(2), where that subsection is to be applied, the termination is taken to have contravened s 170DF(1) unless the employer proves:
"(c)the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or"
It is because of this provision that the passage quoted from Heidt is of such importance. On the facts of this case, on the assumption that s 170EDA(2) applies, it would not be sufficient for the respondent to establish the reasons for dismissal as set out in the affidavit of the respondent and that they constituted valid reasons for termination under s 170DE(1). The respondent has to establish a negative namely that the reasons for dismissal did not include the reason that Mr Johns was temporarily absent from work because of injury. A mere denial may not be sufficient. All the facts and circumstances of the case have to be considered.”
The approach to s 170DF(1) was also considered in Stojanovic v The Commonwealth Club Ltd (unreported, Industrial Relations Court of Australia, Moore J, 8 December 1995). There Moore J said that some caution should be exercised in applying to s 170DF(1) the approach developed in cases applying s 5 of the Conciliation and Arbitration Act 1904 because the provisions were expressed differently. He referred to Bowling v General Motors Holden Pty Ltd (1975) 8 ALR 197 at 200 where Smithers and Evatt JJ said:
"Reading s.5(4) as part of s.5 taken as a whole, we are of the opinion that a particular action taken by an employer may be said to have been actuated by a particular reason or circumstance. If that reason or circumstance was a substantial and operative factor influencing him to take that action. Further, an employer may be said to have been actuated by a particular reason if it was a substantial and operative factor influencing him to take that action, although that reason was but one of a number of reasons which so influenced him. ... It is in this sense ... the burden is cast upon the defendant to prove to the satisfaction of the court as on the balance of probabilities that in dismissing the informant (employee) it was not actuated by the circumstances that the informant was a shop steward."
Moore J noted that under s 170DF(1) the proscribed reason can be one of a number of reasons. He added:
“Section 170EDA requires the employer to establish either that if a proscribed reason is alleged, that was not the reason, or if a number of reasons are alleged including a proscribed reason, the proscribed reason was not one of the reasons. While the concept of "substantial and operative factor" referred to in Bowling (supra) provides a useful guide in applying s 170DF and s 170EDA, it should not distract attention from the width of the language in s 170DF.
I should add that the notion of substantial and operative factor was referred to with approval in the High Court by Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 616 with whose reasons Stephen and Jacobs JJ agreed. Mason J went on to say at 617:
"Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge."
It is now necessary to apply these authorities to the reasons for termination.
I have found that the letter of demand was a reason for the termination. The next issue is whether the applicants have made out their case that the termination was for a reason rendered unlawful under paragraphs 170DF(1)(b) and (e). The letter of demand can be seen as an announcement to the respondent that the applicant is a member of the union, that he has not been paid in accordance with an industrial award, and that the union intends to bring proceedings on his behalf if the demand is not complied with.
Was union membership a reason? - s 170DF(1)(b)
The respondent was not aware before the receipt of the letter of demand that the applicant was a member of the union. Mr Bastian admitted this. Mr Bastian, in a conversation with the applicant after he commenced employment had referred to the dismissal of a member of the union and asked the applicant if he was a union member. The implication was clear. I do not accept Mr Bastian’s denial of this conversation. The applicant was dismissed within two days of the letter of demand. The investigation and promotion of the applicant’s rights under an industrial award is a visible manifestation of the applicant’s union membership. The applicant suffered an immediate adverse consequence that the respondent must satisfactorily explain. It has not. The circumstances of the termination as I have outlined above, and the contents of the conversation, thus lead me to the conclusion that the respondent has not discharged its onus of proof that the applicant’s union membership was not a reason for his termination. The respondent has breached s 170DF(1)(b).
Filing a complaint a reason? - s 170DF(1)(e).
The provisions of s 170DF(1)(e) are designed to protect employees against retaliatory measures. They mirror Article 5 of the Termination of Employment Convention, 1982 (Schedule 10 of the Act) (“the Convention”). In the 1995 ILO Report of the Committee of Experts: Protection against Unjustified Dismissal, at para. 117 it was said:
“117. In the General Survey on equality in employment and occupation, the Committee emphasised more specifically that the effective protection of the principle of equality presupposes the existence of guarantees providing protection against retaliatory measures for a person who lodges a complaint with the appropriate body, who institutes proceedings to enforce his or her rights, or who is a party to such proceedings as a witness. Such measures, the most brutal form of which is termination of employment, taken against a person who has suffered discrimination and who has availed himself of a right which is his in accordance with the national policy of equal opportunity and treatment, are of a particularly serious nature and can have detrimental effects with regard to the practical application of anti-discriminatory provisions, as those who have suffered discrimination often hesitate to have recourse to procedures to redress their grievances for fear of reprisals.”
In the court a broad approach to the construction of the provisions of the Act and the Convention has been adopted: see e.g. Grout v Gunnedah Shire Council (No.1) (1994) 1 IRCR 143 at 160; Andersen v Umbakumba Community Council (1994) 1 IRCR 457 at 461; and Mohazab v Dick Smith Electronics Pty Ltd (No.2) (1995) 62 IR 200.
The provisions of paragraph 170DF(1)(e) are designed to cover the field against retaliatory action against an employee who is involved in a complaint of a formal nature, or proceedings, against his or her employer. Three different aspects are described in the provision, viz. filing a complaint, participation in proceedings, or recourse to a competent administrative authority.
Here when the applicant was dismissed no legal proceedings against the respondent were actually on foot. Only a letter of demand had been served. It would be a strange outcome if the failure of an employee to actually issue proceedings should be the determinant as to whether or not he or she is entitled to the protection of paragraph 170DF(1)(e). For example, often letters of demand or draft statements of claim are forwarded before proceedings are filed in a court or tribunal. It could not have been the intention of the drafters of the Convention that retaliatory action against the employee in those circumstances could be taken with impunity.
This leads me to conclude that the applicant’s participation in the union’s investigation of the alleged award breaches, and the service of a letter of demand on his behalf by the union, a registered organisation under the Act, is comprehended within the phrase “recourse to competent administrative authorities”. Registered organisations are established under the Act. They have been accorded a particular status, and have privileges under the Act. They may be parties to an award. Their privileges include the right of appearance by their officers or employees (s469), the right to sue for recovery of a penalty for a breach of an award (s 178), or to bring an application under Part VIA (s 170EA). Registered organisations thus have a clearly recognised and important role within the framework of the Act and for that purpose can be easily accommodated within the term “competent administrative authorities”.
The recourse by the applicant to the union, in circumstances were the union lodges a letter of demand on his behalf alleging a breach of an award, is recourse to a “competent administrative authorit(y)” within the meaning of s 170DF(1)(e). I am not satisfied that the respondent has excluded this recourse as a reason for its termination of the applicant’s employment. The respondent has breached s 170DF(1)(e).
Valid reason and opportunity to respond: ss 170DC and 170DE.
It is strictly unnecessary for me to consider whether the applicant has made out any other breaches of the Act. Lest I am wrong in my conclusion that s 170DF(1) has been breached, I will shortly indicate my conclusions on the other issues in the proceeding.
As I have found that the respondent has not excluded prohibited reasons from its reason for termination, there can be little doubt that the respondent has not discharged its burden of proof that it had a valid reason to dismiss the applicant. Even if the letter of demand is excluded, the respondent has not discharged this onus. On its own evidence it did not give the applicant the opportunity to respond to the matters in the letter of termination. For the respondent to conclude that the applicant’s conduct and performance deficiencies justified his dismissal it had to give him a proper opportunity to respond to the allegations on which it was acting. It could not defensibly terminate his services just after granting him a period of leave. It had to put the matters on which it intended to act to him. It did not do so and therefore its reasons for termination lack validity. The respondent has breached ss 170DC and 170DE(1) of the Act.
Remedy.
The applicant did not seek reinstatement to his former position. In a small workplace this is not so surprising. The applicant sought compensation under s 170EE(2). Since his dismissal he has remained unemployed, despite a search for work. The representative for the applicant sought the statutory limit of compensation under s 170EE(3). The applicant’s average weekly earnings over his period of employment were $674. Had the applicant continued to work at that rate, six month’s remuneration totals $17,524, and on one view is the measure of the applicant’s remuneration loss as a result of the unlawful termination of his employment.
Counsel for the respondent, however, put in issue whether, had the applicant not been terminated in November 1996, he would have been lawfully terminated soon after due to changes in the rounds the respondent was servicing. These changes resulted in the termination of Mr Jiggins in late January 1997. Mr Bastian, however, accepted that he still had a number of employees and that while there had been some turnover of staff, he had recruited additional employees since the applicant’s departure.
In determining the measure of compensation under the Act a number of matters must be considered. The first is whether an order is, in all the circumstances, appropriate. There were no discretionary reasons put by the counsel for the respondent why an order for compensation should not be made. On the contrary the respondent, in terminating the applicant’s employment in contravention of s 170DF(1), has contravened an important public right enshrined in that provision. The significance of this right is evidenced by the provision in s 170CR, the successor provision to s 170EE of the Act, for the Federal Court of Australia to impose, in addition to the current remedies, a penalty of up to $10,000 for a breach of s 170CK, the successor to s 170DF. This is relevant on the issue of compensation: Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1995) 63 IR 1 at 9; endorsed in Burazin v The Blacktown City Guardian (1996) 142 ALR 144 at 156.
Next the Court must have regard to the remuneration that the applicant “would have received, or would have been likely to receive, if the employer had not terminated the employment.....”: s 170EE(3). Here the changes in the respondent’s business, and the fact that there had been incidents regarding the applicant’s employment, lead me to conclude that there was a real possibility that the applicant may not have remained employed by the respondent for the indefinite future had his employment not been terminated on 17 November 1996. His employment may have been lawfully terminated or he may have resigned. Further, the employment of additional staff may have reduced the number of hours that the applicant worked.
Having regard to these considerations and contingencies, I am of the view that $13,000 is appropriate compensation for the respondent’s breach of the Act.
ORDER:
The Court declares that the respondent has breached ss 170DC, 170DE(1) and 170DF(1) of the Workplace Relations Act1996 (Cth);
The Court orders the respondent pay to the applicant the sum of $13,000.
The respondent may offset against the sum in paragraph 2 hereof any amounts remitted to the Australian Taxation Office on the applicant’s account.
I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for decision of Judicial Registrar Murphy.
Associate: KAREN HALSE
Dated: 29 JULY 1997
APPEARANCES
Appearing for the applicant: MR K FAROUQUE Applicant’s representative: ALHMWU - Miscellaneous Workers Division
Counsel for the respondent: MR M SASSE Solicitors for the respondent: PURCELL BALFE & WEBB Dates of Hearing: 15 & 16 MAY 1997 Date of Judgment: 29 JULY 1997.
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