Chuck v Kilsby
[1996] IRCA 525
•24 October 1996
DECISION NO:525/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - whether direction to work during agreed holiday leave lawful
Industrial Relations Act 1988 ss.170DB, 170DE(1)
Income Tax Assessment Act 1936
GARY JOHN CHUCK - v - BARRY GRAHAM KILSBY
No. VI 1323 of 1996
Before: Judicial Registrar Millane
Place: Warrnambool
Date: 24 October 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1323 of 1996
B E T W E E N :
GARY JOHN CHUCK
Applicant
A N D
BARRY GRAHAM KILSBY
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 24 October 1996
THE COURT ORDERS BY CONSENT THAT:
The title of the respondent be amended to read "Barry Graham Kilsby".
AND THE COURT FURTHER ORDERS THAT:
The respondent's solicitors, D. Madden and Co, have leave to withdraw as the solicitors on the record acting for the respondent.
Within 21 days of the date of these orders, the respondent pay to the applicant:
(a)damages pursuant to section 170DB of the Industrial Relations Act 1988 in the sum of $488; and
(b)compensation in the sum of $6344, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1323 of 1996
B E T W E E N :
GARY JOHN CHUCK
Applicant
A N D
BARRY GRAHAM KILSBY
Respondent
Before: Judicial Registrar Millane
Place: Warrnambool
Date: 24 October 1996
REASONS FOR JUDGMENT
(delivered ex tempore - revised from transcript)
By an application made on 25 March 1996 the applicant seeks the payment of compensation, alleging that his employment with the respondent was terminated in contravention of Division III Part VIA of the Industrial Relations Act 1988 (the Act). At hearing it was agreed that the title of the respondent should be amended to Barry Graham Kilsby, who is one of the proprietors of the registered business name, Ready Hire.
At hearing the solicitors acting for the respondent applied for and were granted leave to withdraw. This left both the applicant and the respondent to appear in person with no additional witnesses called by either of them.
From August 1994 the applicant was employed as a casual employee, at first for four months and thereafter as a full-time mechanic in the respondent's equipment hire business. The applicant is a registered diesel mechanic but not a qualified motor mechanic.
Apart from his duties as a mechanic the applicant served customers and booked equipment in and out as well as possessing keys to open and close the business. It appears from the evidence that at the relevant time the business was a two man operation with one casual employee coming in to assist from time to time. The applicant was engaged for a forty hour week between 8.00am and 5.00pm Monday to Friday. From September 1995 his pay was increased to $488 gross per week to cover work for two additional hours on one Saturday morning in each month.
The applicant and the respondent agreed that there were a number of conversations in the months preceding the termination on 7 February 1996 about the impending birth of the applicant's child and the arrangements for the applicant to take some of his annual leave in February 1996 to coincide with the birth. On the evidence I am satisfied that some months before the birth there was a request by the applicant to take leave from 5 February 1996 and this was because he had to arrange to care for his two year old daughter whilst his wife was in hospital.
Prior to the February birth there was a conversation between the two men in which it was agreed that the holidays would commence on Wednesday, 7 February 1996 rather than Monday, 5 February 1996 which was the date the applicant wanted, both to cover the birth and to collect from the airport relatives arriving on that date. In the same conversation it appears that the respondent made it clear to the applicant that he expected the applicant to be at the business in which he was employed even if it meant that he missed the birth of the child.
The tenor of the respondent's evidence is that he expected the employee to put the needs of the business first. On Thursday, 1 February 1996 with the birth due in that week, the respondent went to Melbourne on business and left mid-morning. It was agreed that the applicant was instructed to contact the respondent on his mobile telephone should there be any problems. It was also agreed that the applicant knew that the respondent was staying with his sister in Geelong on Thursday night and returning to the business by 12.00pm on Friday.
The applicant alleges that the respondent failed to take his mobile telephone with him. On the other hand, the respondent says he did take it but the battery was flat. Either way, when the applicant received news on Thursday afternoon that his wife's waters had broken and she had to go to hospital, he could not contact the respondent on the mobile telephone. Whilst the respondent acknowledged that the applicant did not know the respondent's sister's married name for the purposes of contacting her, the respondent felt that the applicant should have used the business teledex to contact a family member to let him know there was a problem.
The applicant, because he was not familiar with the sister's name, did not contact the respondent, but did ring all the clients who either had equipment booked out on hire or were due to collect equipment on Friday morning, telling them what had happened and advising them to attend at 12.00pm on Friday when the respondent would be back. He then closed up the shop at 5.00pm and left and took his wife to hospital. On the evidence, I am satisfied the applicant acted reasonably, and took all necessary steps to protect the employer's business.
When the respondent returned on Friday, there does not appear to have been any particular difficulty, although he claims that some clients were waiting for him. The applicant spoke to the respondent on Friday night. The baby was born at 5.30 am on Saturday, and during the day, the applicant attended the shop and agreed to arrange a babysitter between 4.30 and 5.30pm on that day so that he could help in the business. Although he was due to work on Monday and Tuesday before commencing his holidays on Wednesday, 7 February 1996, the applicant, because of the need to look after his two year old daughter, did not attend work on Monday or Tuesday. This was done by arrangement with the respondent and, instead, the applicant agreed to work on Wednesday, 7 February, which was the first day of his holidays. He was not paid for the Friday, Monday or Tuesday he had not worked and that time was obviously treated as unpaid leave. It is not clear whether he was ever paid for the Wednesday, 7 February work, although on 8 February 1996, he received his outstanding holiday leave entitlements. At approximately 4.30 pm on Wednesday, 7 February the respondent asked the applicant to come to work on Thursday for one or two hours. He was told by the applicant that the applicant could not attend work.
The respondent claims that the answer given was that the applicant would not work, rather than he could not. In any event, the applicant's response caused the respondent to ask if the applicant wanted his job. The applicant claims to have said he did, but was also told there had to be give and take, and he was to finish up. The respondent says he used different words, telling the applicant he was too unco-operative and he thought it best the applicant look for another job. The upshot of that conversation was that the employment was terminated and it was done so at the respondent's initiative.
FINDINGS
The respondent carries the burden of showing that there was a valid reason for termination. The applicant's employment was in this case terminated summarily. The reason for termination appears to have been the applicant's failure to agree to work for a short period on the second day of his holidays. For this to amount to misconduct the instruction to work must be a lawful one at the time it is given. In this case it is not disputed that the applicant was from Wednesday, 7 February 1996 on holiday leave. Accordingly, the respondent was not in a position to lawfully instruct him to work on Thursday, 8 February 1996.
A valid reason is one that is sound, defensible or well-founded. On the evidence the respondent has not discharged the onus it carries because it was, in all the circumstances, unreasonable to require the employee to attend work when he was on agreed holiday leave. Apart from contravening section 170DE(1) of the Act, the respondent also failed to pay any compensation in lieu of notice pursuant to section 170DB of the Act. The period of employment attracts a statutory minimum of one week's pay, namely, $488.
REMEDY
Because of the small size of the operation, I am satisfied that reinstatement is impracticable. The applicant has not found full time employment since 7 February 1996, although he has had casual employment paying him some $2,000 gross in income. I am satisfied, on his evidence, that he has endeavoured to obtain full time employment during the relevant period.
In considering whether the payment of compensation is appropriate, I am required to consider all the circumstances of the case. Whilst it was not lawful for the respondent to require the employee to work on the second day of his holidays, it is clear that in a small business operation there does need to be give and take, and the applicant was able to take unpaid leave on Friday, Monday and Tuesday, which were all days he would otherwise have been obliged to work. Accordingly, I have reduced the entitlement to compensation to reflect the abovementioned matters and have assessed it at three months or 13 weeks’ remuneration; namely, $6,344.
MINUTES OF ORDERS
THE COURT ORDERS BY CONSENT THAT:
The title of the respondent be amended to read "Barry Graham Kilsby".
AND THE COURT FURTHER ORDERS THAT:
The respondent's solicitors, D. Madden and Co, have leave to withdraw as the solicitors on the record acting for the respondent.
Within 21 days of the date of these orders, the respondent pay to the applicant:
(a)damages pursuant to section 170DB of the Industrial Relations Act 1988 in the sum of $488; and
(b)compensation in the sum of $6344, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 6 November 1996
Applicant in Person.
Respondent in Person.
Date of hearing: 24 October 1996
Date of judgment: 24 October 1996
0
0
0