Cooper v Anthony and Sons Pty Ltd T/As Oceanic Cruises

[1998] IRCA 4

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - alleged UNLAWFUL TERMINATION - whether applicant CASUAL EMPLOYEE engaged for a short period - whether applicant engaged on a regular and systematic basis - whether VALID REASON - whether applicant given opportunity to DEFEND himself against allegations - whether prohibited reason - COMPENSATION.

Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170DC, 170DE, 170DF, 170EA, 170EDA & 170EE.
Industrial Relations Regulations Reg 30B
Minimum Conditions of Employment Act (WA)

Reed v Blue Line Cruises Ltd (1996) 73 IR 420
Kumar v Prima Furniture (NSW) Pty Ltd (1997) 73 IR 349.
Cosco Holdings Pty Ltd v Thu Thi Van Do (unreported, Federal Court Judgment No. 1353 of 1997, Northrop, Lindgren and Lehane JJ, 4 December 1997).
Venn v Wesfarmers (unreported, IRCA No. 128 of 1997, RD Farrell JR, 16 April 1997)

KIM COOPER V ANTHONY & SONS PTY LTD trading as OCEANIC CRUISES
WI 1474 of 1996

R.D. FARRELL JR
PERTH
4 FEBRUARY 1998

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1474 of  1996

BETWEEN:	KIM COOPER APPLICANT
AND:	ANTHONY & SONS PTY LTD TRADING AS OCEANIC CRUISES RESPONDENT
COURT:		R.D. FARRELL JR
DATE OF ORDER:		27 JANUARY 1998
WHERE MADE:		PERTH

THE COURT DECLARES THAT:

1. The applicant is not excluded by Regulation 30B(1)(d) of the Industrial Relations Regulations from the operation of Subdivisions B, C, D, and E of Division 3 of Part VIA of the Workplace Relations Act 1996.

1. The termination of the applicant’s employment by the respondent contravened Section 170DC of the Workplace Relations Act 1996.

THE COURT ORDERS THAT:

1. Within 21 days of the date of making these orders, the respondent pay to the applicant compensation in the sum of $1,500.00 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 in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1474 of 1996

BETWEEN:	KIM COOPER APPLICANT
AND:	ANTHONY & SONS PTY LTD TRADING AS OCEANIC CRUISES RESPONDENT

COURT:	R.D. FARRELL JR
DATE:	4 FEBRUARY 1998
PLACE:	PERTH

REASONS FOR JUDGMENT

This is an application under Section 170EA of the then Industrial Relations Act 1988 now known as the Workplace Relations Act 1996 (“the Act”) for compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Kim Cooper (“Mr Cooper”), by the respondent, Anthony & Sons Pty Ltd trading as Oceanic Cruises (“Oceanic”). Reinstatement is not sought and I am satisfied that it is not practicable.

Anthony & Sons Pty Ltd is in the business of boat-building and has also, for the past five years, been in the business of providing ferry services. These ferry services include daily return services from Perth to Rottnest Island, which is a popular holiday destination off the coast of Perth, river cruises along the Swan River and occasional whale-watching cruises.

The ferry service business is conducted under the name of Oceanic Cruises, and is managed on a day to day basis by Mrs Gabrielle Dilatte, one of the directors of Anthony & Sons Pty Ltd. The other director, Mr Antonio Dilatte, runs the boat-building business and, it was agreed, also exercises ultimate control over the ferry service business.

Mr Cooper was 43 years of age at the time he was employed by Oceanic as a ferry operator in the beginning of December 1995. His employment ended on 22 October 1996.

Mr Cooper contends he was dismissed by Oceanic because he queried safety procedures on one of their vessels.

Oceanic denies this, and contends that Mr Cooper was dismissed for a number of reasons connected with his conduct and performance of his duties. Mr Cooper disputes those allegations and says that, in any event, he was not given an opportunity to defend himself against those allegations before his dismissal.

Whether Mr Cooper was a Casual Employee Engaged for a Short Period

Oceanic raised a preliminary issue, contending that Mr Cooper was a casual employee engaged for a short period, so that he was excluded by Regulation 30B of the then Industrial Relations Regulations from the protection of the unlawful termination provisions of the Act.

Regulation 30B(1)(d) excludes casual employees engaged for a short period from the operation of the unlawful termination provisions of the Act. Regulation 30B(3) provides that a casual employee is taken to be engaged for a short period unless the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months and the employee had a reasonable expectation of continuing employment by the employer.

In order to show that he is not caught by Regulation 30B, Mr Cooper must therefore establish either that:

• he was engaged by Oceanic:

• during a period of at least six months

• on a regular and systematic basis, and

• with a reasonable expectation of continuing employment by Oceanic, or

• he was not a “casual” employee, as that term is properly understood.

Mr Cooper was employed by Oceanic over a period of about ten months.

Mr Cooper applied for work in response to a newspaper advertisement placed by Oceanic. The terms of the advertisement are not known; it was not produced at the hearing.

Mr Dilatte selected Mr Cooper from the available job applicants because he seemed keen to do the job. Mr Dilatte told the Court that he regarded a skipper’s reliability and commitment to the job as very important. Oceanic employed a pool of deckhands, engineers and skippers. There were four skippers being offered work by Oceanic at the time of Mr Cooper’s dismissal. It would appear that only one of them, Mr Mick Doyle, had been employed over a longer period than Mr Cooper. In the 47 weeks that Mr Cooper worked with Oceanic, he worked an average of almost 28 hours per week, over an average of four days a week. He very seldom worked less than three days a week; twice in his first three weeks and once in June. He often worked five days a week.

I am satisfied that Mr Cooper had an expectation of continuing employment with Oceanic, and that his expectation was reasonable, given the availability of work and the number of employees engaged by Oceanic.

Whether he was engaged on a “regular and systematic basis” is a more complex question. Mrs Gabrielle Dilatte, another Director of Oceanic, drew up rosters on a weekly or fortnightly basis for the various ferry crews. These were distributed at least a week in advance. While Mrs Dilatte says she had no rigid guidelines, her aim was to distribute the available work amongst Oceanic’s pool of employees as evenly as possible. Mr Cooper sometimes worked as an engineer, but usually worked as a skipper. He sometimes worked on the “MV Classique”, a boat which conducted tours of the Swan River, and at other times worked on the “Supercat” or its successor from May 1996, “Supercat II”, which covered routes from Perth to Rottnest island, and sometimes conducted whale watching tours.

I have closely examined the rosters and the wages book. Where they are not consistent, I have treated the wages book as more accurate, because it is a retrospective record. While some patterns can be discerned in Mr Cooper’s days and hours of work from week to week, these patterns tend not to be long-lasting. His employment thus cannot be said to have been “regular” in the sense that he worked at fixed times. Notwithstanding Mrs Dilatte’s guiding principle of sharing the work fairly, I would also hesitate to describe the manner in which she drew up the rosters as “systematic”.

The nature of Mr Cooper’s employment is therefore such that it could be argued that he does not fit comfortably into the category deemed under Regulation 30B(3) not to be “engage(ment) for a short period”.

I will therefore consider whether he can properly be described as a “casual” employee engaged for a short period.

There was no written contract of employment.

Mr Dilatte claims that he offered Mr Cooper work on a casual basis and that nothing was said to Mr Cooper about future employment. He says they didn’t discuss rostering.

Mr Cooper left a permanent job to work for Oceanic. He says, variously, that Mr Dilatte guaranteed him 40 to 45 hours work per week, or a minimum of 45 hours and up to 60 hours work per week. In fact he worked less hours than that. However, he says it was a full-time job as far as he was concerned. Mr Terry Cahill, who was a fellow ferry operator with Oceanic for a time, gave evidence that the position, while technically casual, was effectively a full time job.

Mr Cooper says he didn’t discuss with Mr Dilatte when he was hired whether the position was casual. He says he presumed when he started that he was entitled to holiday pay, but learnt from other staff after beginning work that he wasn’t. 

Mr Kenneth Scott, who worked as a skipper for Oceanic for a time, says that in his experience it was possible to swap shifts without objection from Mrs Dilatte. He usually worked four days a week. Mr Lawrence, a deckhand, agrees they could swap with approval, but did not believe it was open to them to refuse to work on a particular day. However, he accepted that if he asked in advance to have a particular day off, there would be unlikely to be any problems; he told the Court that he wouldn’t ask, and was happy to get the days he got. He has an expectation that his employment would continue. Mr Wright, a deckhand, says that they were expected to come in on rostered days, but that they could swap shifts as long as it was organised in advance. Mr Cooper says he had swapped shifts where Mrs Dilatte was in agreement, but had never tried to reject a roster without arranging a replacement. He would occasionally do other work, but not if it clashed with his roster.

Mrs Dilatte says that if casual employees let her know in advance, she tried to give them the days off they wanted. She says that a person who had been there longer might get preference. Mrs Dilatte agreed that if a casual employee couldn’t work on a rostered day, they could arrange a swap with another employee, which was never a problem. If they couldn’t find a replacement, in her experience they always agreed to work. She says she would tell them that she needed them to work, but denied that she had the power to make anyone work. She denied that she would “hold a grudge against” someone who did not work when rostered to do so.

On the evidence before me, it is not clear whether the roster was adhered to and Mrs Dilatte’s consent to any change sought as a matter of courtesy, or whether it was required by Oceanic. There was some suggestion that the allocation of work was used as a disciplinary measure, at least with regard to junior employees. Whether or not this was the case, the potential for Oceanic to withdraw future work from an employee who chose not to work hours allocated to him or her would, in the absence of a clear direction to the contrary, cause employees to feel obliged to accept work hours allocated to them or to arrange a suitable “swap” and secure Mrs Dilatte’s acceptance to such a swap,  

Mr Cooper’s pay records maintained by Mrs Dilatte describe his classification as “Casual Skipper/Engineer”. He was paid at an hourly rate for work done. When, for example, a trip was cancelled due to bad weather, he was not paid. He did not accrue leave entitlements.

In common Australian industrial parlance, such an arrangement would routinely be described as casual employment. The term “casual” is not defined in the Act. However, as Moore J points out in Reed v Blue Line Cruises Ltd (1996) 73 IR 420 at 427, one of several decisions of the Industrial Relations Court of Australia which have considered the term, Regulation 30B is not intended to reflect entrenched notions of what may be a “casual” for the purposes of Australian domestic law, but rather what is comprehended by the expression “engaged on a casual basis for those periods” in the international Convention concerning Termination of Employment at the Initiative of the Employer. Moore J also found that it would be wrong in principle to treat an award definition, even where it was accepted by the parties, as conclusive.

After considering dictionary definitions and the legislative context, Moore J concluded:

“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.”

Reed v Blue Line Cruises Ltd has been widely followed, and I am aware of no alternative judicial definition of the term “casual” for the purposes of Regulation 30B.

Applying Moore J’s definition to the facts of this case, I am satisfied that there was an understanding between Mr Cooper and Oceanic that he would continue to be offered employment for the foreseeable future.

I conclude therefore that it was not a casual employment relationship and that Mr Cooper was not a casual employee for the purposes of the Act.

I am reinforced in my finding by the fact that the employment in Reed v Blue Line Cruises Ltd was held by Moore J to be casual in nature, notwithstanding that Mr Reed was engaged to be master of a vessel which was chartered for cruises. It is likely that his hours of engagement were at least as irregular, in the sense that they were not fixed, as those of Mr Cooper.

Whether There was a Valid Reason for the Termination of Mr Cooper’s Employment

Mr Cooper was given no reason for his termination when he was dismissed. However, a catalogue of reasons were raised by Oceanic in response to Mr Cooper’s application, all of which go to his conduct, capacity or performance. Oceanic contends that these reasons, whether viewed separately or cumulatively, constitute a valid reason for Mr Cooper’s dismissal, as required by Section 170DE(1) of the Act.

In due course I will enumerate each of those reasons, assess whether they are made out on the evidence and, if so, consider whether they constitute a valid reason for dismissal.

Before doing so, however, I will consider the meaning of the term “valid reason”.

Section 170DE(1) of the Act reads:

(1)An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

Section 170EDA(1) reads that:

(1)If an application lodged under section 170EA alleges that a termination of employment of an employee contravened subsection 170DE(1) then... in any proceedings arising on the referral of the application to the Court:

(a)the termination is taken to have contravened subsection 170DE(1) unless the employer proves that... there was a valid reason, or valid reasons, of kind referred to in subsection 170 DE(1)...

While this application was heard in the Industrial Relations Court of Australia, any review from this decision would be heard by a judge of the Federal Court under the transitional provisions put in place following the removal of the Industrial Relations Court of Australia’s jurisdiction by amendments to the Workplace Relations Act 1996: See Kumar v Prima Furniture (NSW) Pty Ltd (1997) 73 IR 349.

I am therefore bound under the doctrine of precedent by the decision of the Full Court of the Federal Court in Cosco Holdings Pty Ltd v Thu Thi Van Do (unreported, Federal Court Judgment No. 1353 of 1997, Northrop, Lindgren and Lehane JJ, 4 December 1997).. In that decision, a majority of the Full Court held that:

“...a reason for termination ...may be valid even if the termination ...may be regarded as unfair. In other words, fairness, reasonableness or justice, as regards the employee, is not the realm of discourse with which ‘valid’ is concerned... In the statutory context with which we are concerned, the primary work of ‘valid’ is to exclude the reasons listed in s 170DF(1) [which prohibits various listed reasons, including union membership or non-membership, race, disability, age etc]. If there are other reasons for which an employee may not lawfully dismiss an employee, then equally, no doubt, such a reason would not be a ‘valid’ reason. Additionally, perhaps, the word ‘valid’ may serve to emphasise that the reason must be genuinely connected with the employee’s capacity or conduct or genuinely based on operational requirements. In our view... it has no wider operation.”

Northrop J, the other member of the Full Court, gave the term a similarly narrow construction, holding that:

“To be a valid reason, the reason must be lawful in the sense of not being prohibited, and genuinely must be based on those operational requirements [or, presumably, genuinely connected with the employee’s capacity or conduct]. The word ‘valid’ is used as an adjective qualifying the word ‘reason’ and is used in the sense of sound, defensible or well founded with respect to the foundation, namely the operation requirements of the employer [or, again presumably, with respect to the connection with the employee’s capacity or conduct]”

Oceanic contends that Mr Cooper was dismissed because:

1. he was often rude and abrupt to passengers;

2. his appearance was not up to the standard of the position as a skipper;

3. the vessels he skippered were frequently damaged due to his mishandling;

4. he abused the vessel by travelling at full speed, despite instruction as to the speed at which he was to operate;

5. he often failed to welcome passengers on board and thank the passengers upon departing the vessel which was a part of his duties as skipper and a significant part of the service of Oceanic;

6. he often failed to provide commentary on the Swan River cruises when instructed to do so;

7. he intentionally sped in Thomson Bay at Rottnest Island to the extent that on one occasion a dingy broke its mooring and was washed ashore, the incident being reported to Oceanic by the Rottnest Ranger;

8. he was found speaking badly of his employer and the company he worked for;

9. he on many occasions was rude to the office staff in front of customers causing them embarrassment and distress;

10. fellow crew members refused to be rostered to work with him due to his attitude and other reasons; and

11. he never exercised the emergency drills with the crew of his vessel.

Evidence was led both to support and to rebut these allegations.

My first task is to make findings of fact as to whether and to what extent the respondent’s allegations are made out.

Given that a dismissal for a reason connected with any of the above allegations would not be prohibited by Section 170DF and assuming that the dismissal was not unlawful for any other reason, if some or all of the above allegations are made out then the only question remaining is whether the reason for Mr Cooper’s dismissal was genuinely connected with Mr Cooper’s capacity or conduct.

My findings of fact follow as to which of the allegations have been made out on the evidence.

Valid Reason: Operation of and Damage to Vessels

It was Mr Dilatte who took the decision to dismiss Mr Cooper. Mr Dilatte says that the most important of the many reasons for the dismissal was his dissatisfaction with the manner in which Mr Cooper operated Oceanic’s vessels.

Mr Dilatte gave evidence of an unusual amount of damage being done to the vessels, which he believed Mr Cooper to have caused. It was not contended that the damage was deliberate. Rather Mr Dilatte contends that it resulted from Mr Cooper’s lack of skill or capacity as a skipper.

Mr Cooper recalls that the position for which he applied required a “Marine Engineer Drive 2” qualification, which he possesses, and that he was initially taken on as an engineer, rather than a skipper. This issue was not pursued by the applicant. After he was engaged, Mr Cooper received some training from Mr Doyle, one of the existing skippers.

Mr Cooper initially spent most of his time as skipper on the “Classique”, conducting river cruises. Mr Dilatte complains that the “Classique” incurred an unacceptable amount of damage when under Mr Cooper’s control. This included damage to the railings, the rubbing board and the loss of a midship door, broken off when caught against a jetty as the boat was docking.

Mr Cooper admits that he sometimes made contact with the jetties with the railings and rubbing boards. He admits that when he was operating the Classique it lost a door.

In broad terms, Mr Cooper’s response was that:

• it was usual for rubbing boards and railings to be dented through hitting and rubbing against jetties in the normal course of operation - that was the function of a rubbing board;

• the Classique was a very difficult vessel to handle - some of the skippers refused to work on it and it has, since his dismissal, had modifications in an effort to improve its handling; and

• other skippers have had the same difficulties with the Classique - eg another skipper had also lost a door by catching it on the jetty while docking.

Mr Dilatte claims that he decided to shift Mr Cooper to the more easily handled “Supercat”, an ocean-going ferry, after the incident with the Classique’s door. Other evidence suggests however that this change came about as a result of the dismissal of Mr Cahill, who had previously been skippering the Supercat. Mr Cooper, in fact, disliked operating the Classique, and had been wanting to be moved from it for some time.

Viewed in isolation, the evidence about Mr Cooper’s operation of the Classique was inconclusive. Mr Dilatte was hindered in his account by the fact that his beliefs concerning Mr Cooper’s performance as skipper of the Classique was often based on second hand evidence. He could see the damage, but could not always be sure who was responsible for it or how it had happened. Mr Cooper admitted responsibility for some of the damage, but I was not sufficiently satisfied on the above evidence that his performance as skipper of the Classique was poor in comparison with what could properly be expected of a skipper in those circumstances with that boat.

However, Mr Cooper’s operation of the Supercat and its successor, the Supercat II, was also the subject of criticism. While there was some more evidence of damage to rubbing boards and similar matters, two incidents were given particular prominence. They were:

• an occasion when Mr Cooper grazed the new Supercat II against the Fremantle Bridge, causing damage to its side; and

• an occasion when a bollard broke off the vessel as it was being brought alongside a jetty, injuring a deckhand.

Mr Cooper’s explanation concerning the collision with the bridge was that:

• The rudders of the Supercat were inadequate and ineffective for controlling the vessel at low speed, so that it got caught on a current of the river and was pulled onto the bridge;

• The skippers conferred after the incident and agreed that in future they would use the motors of the vessel to steer it at low speeds, rather than the rudder;

• Mr Cooper had chosen to use the rudder at the time because there was a problem with the hydraulics which would otherwise have permitted him to operate the motors from the preferred vantage point; and

• He was exercising his judgment as skipper at the time as best he could, given that the vessel was new and his knowledge of it correspondingly limited.

His evidence on this matter received some support from the evidence of Mr Scott, another skipper who operated the Supercat II over two weeks. Mr Scott suggested, presumably with some degree of exaggeration, that there was no one on the river who had not hit the Fremantle Bridge, because of the strong currents and eddies which were to be found under it. The Supercat II apparently had about two metres’ clearance on either side when going under the bridge.

The damage caused by the bridge was not structural, and was not repaired for some time, as it would have required the vessel to cease operating.

With regard to the bollard incident, the Supercat II was engaged in the process of coming alongside the jetty. One of the deckhands had tied a “spring rope” from the jetty to one of the bollards attached to the stern of the ferry. In the usual course, the boat would be idled forward in gear to take up the slack in the rope, after which the combination of the motor and the resistance of the rope would cause the boat to move into position alongside the jetty, when the slip rope at the bow would be fastened.

The result on this occasion was that such force was exerted on the aluminium bollard by the slip rope that one of the arms of the bollard snapped off and struck the deckhand in the leg, injuring him and leaving him scarred.

The deckhand, Mr Wright, says that Mr Cooper failed to take up the slack on the rope, but instead accelerated the motor with too much power so that a sudden stress was placed upon the bollard.

The bollard was repaired, but broke again soon after. Another deckhand, Mr Tim Lawrence, gave evidence of another occasion when the bollard broke off, at Rottnest Island. It was his assessment that Mr Cooper was “going too hard at it”.

Mr Cooper contends that the problem lay in the bollards, which were not strong enough and were positioned wrongly. This was a criticism of the respondent, which built the Supercat II. Mr Cooper denies that he did anything more than idle the motor, and says his boat-handling did not contribute to the damage.

It was also contended that as a matter of boat-building design and practice, the strength of the bollards and the ropes used should be such that if too much stress is exerted on the spring rope when coming alongside, it should be the spring rope that breaks rather than the bollard.

There was differing evidence as to whether manilla rope or the stronger nylon rope was used. It was not clear to me on the evidence whether the wrong rope was used and, if so, whose fault that would be.

It was surprising that there are no references to the incidents with the bollards in the vessel’s log. One of Mr Cooper’s own witnesses, Mr Cahill, suggested that it would have been Mr Cooper’s obligation as skipper to record the details of any such incident.

Several of the witnesses were invited to give their general view as to Mr Cooper’s capacities as a skipper.

The qualifications of the two deckhands to offer such an opinion were properly challenged. They were able, however, to make some factual comparisons of Mr Cooper’s methods of operating compared with other skippers with whom they worked.

Mr Wright says that Mr Cooper used to come alongside the jetty “a lot harder” than the other skippers he had worked with. Mr Lawrence described Mr Cooper as “a lot rougher” with the boat when docking than other skippers. When asked what he meant by this, he said that Mr Cooper often seemed to go faster when docking. However, in Mr Lawrence’s view, Mr Cooper’s “seamanship” ie his knowledge of the sea and handling, was as good as any other skipper. Mr Cooper points out that during winter, the surges and strong winds required some firmness of handling when manoeuvring the vessel at the jetty.

Mr Scott, who is a lecturer and director of the Swan Maritime Institute and holds a MED1 qualification (which is the most senior available), saw Mr Cooper perform his duties as skipper on a few occasions. He considered Mr Cooper’s skills very good, including his operation of vessels in confined quarters such as jetties.

Mr Cahill, who also saw Mr Cooper operate vessels on occasion, described Mr Cooper’s skills as “definitely adequate”.

In other respects, Oceanic’s complaints about the manner in which Mr Cooper operated the ferries were concerned with conduct, rather than incapacity.

Mr Dilatte alleges that Mr Cooper often travelled at full speed, despite instruction to the contrary. For example, there was a specific allegation that Mr Cooper intentionally sped in Thomson Bay at Rottnest Island to the extent that on one occasion a dingy broke its mooring and was washed ashore. Mr Dilatte says the incident was reported to Oceanic by the Rottnest Ranger.

The Rottnest Ranger did not give evidence. Mr Cooper says he would have expected the Ranger to raise the matter with him if such an incident had occurred. The matter was never raised with Mr Cooper by the Ranger nor by Mr Dilatte. In the absence of any direct evidence, I have disregarded the specific allegation.

More generally, Mr Dilatte says that operating the Supercat II faster than the recommended speed:

• was detrimental to the engines - Mr Dilatte says the fact that the motors were being abused was pointed out by the people provided by the manufacturer to service them;

• made the trip less comfortable for the passengers - Mr Dilatte says Oceanic received complaints on this issue and a written complaint was tendered;

• reduced fuel economy; and

• posed safety risks - Mr Cooper was told that one passenger had complained of falling over due to the speed of the ferry.

Mr Dilatte sometimes tried to assess Mr Cooper’s speed, based upon the time it took him to complete defined portions of the journey, and concluded he was travelling at excessive speed. Mr Cooper was aware that it was an issue of concern to Mr Dilatte, who would apparently ask him what speed his was doing when contacting him by mobile phone from time to time. Mr Cooper denies driving the vessel faster than the recommended speed.

The signs of excessive speed commented on when the engines were serviced need not have been caused by Mr Cooper; others also skippered the Supercat II. While there was evidence tendered of written complaints by passengers concerning the speed of the vessel, detailed below, it does not establish that the speed complained of was in fact faster than the recommended speed. Nor do I regard Mr Dilatte’s method of calculation as reliable. In the absence of evidence from, for example, other crew members able to see or judge whether the speed was greater than the recommended speed, I am not satisfied that it is more likely than not that Mr Cooper constantly or even regularly operated the ferry at excessive speed.

Mr Dilatte complains that Mr Cooper never exercised the emergency drills with the crew of his vessel, as he was meant to do. Certainly, if he did attend to the drills, he made no note of it in the log, as it seems he was required to do. Otherwise, however, there seemed to be considerable support for the proposition that Mr Cooper was very safety conscious as a skipper. I have real doubts that Mr Cooper’s dismissal was genuinely related to any deficiency in conducting drills, and believe that Mr Cooper would have ensured strict compliance with this requirement if any perceived deficiency had been effectively brought to his attention. 

Finally, there was a complaint concerning an attempt by Mr Cooper to relocate a malfunctioning bilge alarm. On the evidence before me I do not consider Mr Cooper to have acted unreasonably in that regard, and I do not see his actions as contributing to a valid reason for his dismissal.

Generally, however, the impression I have been left with on a consideration of the accumulated evidence is that Mr Cooper did not operate the ferries with the degree of care or cautiousness that Mr Dilatte required, and that as a result the Supercat II, and indeed the Classique, sustained damage which Mr Dilatte believed to be avoidable, and which was more than Mr Dilatte was prepared to accept.

I am satisfied that Mr Dilatte made it known to Mr Cooper, at least initially, that he was not happy with the extent of the damage being sustained by vessels skippered by Mr Cooper.

In considering whether the damage sustained by the vessels was inevitable or whether Mr Cooper’s style of operating contributed to it, I have been influenced by the evidence of the deckhands who worked with him regularly and their comparisons with other skippers. Given their evidence concerning the operation of Supercat II, I am prepared to put greater weight on the evidence concerning the operation of the Classique than I would were it to be viewed in isolation.

Mr Cooper may well be a very skilful ferry operator. The manner in which he went about his duties may well have reflected his confidence in his abilities. I am prepared to accept, however, that when something went amiss - perhaps for reasons beyond his control - the damage sustained by the vessel was greater than perhaps it would have been with a more tentative skipper.

Valid Reason: Work Performance in Relation to Passengers

Mr Dilatte told the Court that passengers are the life blood of the ferry business. There is a rival ferry service so passengers have a choice. He says it was part of Mr Cooper’s duties as skipper to provide service to the passengers and to generate goodwill for Oceanic.

On all cruises Mr Cooper was expected to welcome passengers on board, thank them as they disembarked and be courteous during his informal dealings with them.

On river cruises, Mr Cooper was required to give a standardised commentary over the boat’s public address system during the cruise.

Mr Dilatte says that at regular meetings with the crew, including Mr Cooper, he stressed that it was important that the crew be courteous and friendly in its dealings with passengers. I am satisfied from the evidence of other crew members that the high standard of behaviour expected from the crew in this area was made clear to them.

Oceanic allege, however, that Mr Cooper was often rude and abrupt to passengers. They say he often failed to welcome passengers on board and thank the passengers upon departing the vessel and that he often failed to provide the commentary on the Swan River cruises when instructed to do so.

Several of Mr Cooper’s witnesses gave evidence that he was courteous in his dealings with passengers. Mr Scott described him as good with passengers, pointing out that the deck hands usually had more to do with them. Mr Michael Watson, a former employer, agrees he could be very good with the public. Mr Cahill says he never saw Mr Cooper be discourteous to passengers.

The deckhands’ evidence was less favourable. Mr Lawrence initially said Mr Cooper’s dealings with the passengers was similar to the other skippers, but later conceded that Mr Cooper was less friendly and courteous than the other skippers. He says Mr Cooper was “a bit short-tempered” and sometimes gave difficult passengers the “cold shoulder”. Mr Cooper did not live up to Mr Dilatte’s requests concerning treatment of passengers “100 percent of the time”; in Mr Lawrence’s view, one can’t be courteous 100 percent of the time. In Mr Lawrence’s experience however, he always met his responsibilities with respect to welcoming passengers aboard and providing commentary.

Mr Wright was less equivocal. He says that while other skippers were quite happy to help out passengers, Mr Cooper was not so much rude to passengers as abrupt, talking to passengers as if he didn’t have time for them.

Mrs Dilatte gave evidence of the fact that Oceanic received specific verbal complaints against Mr Cooper. I accept that those complaints were received. In addition, Oceanic received the following letter, dated 17 October 1996:

“The Manager
Oceanic Cruises
Perth

Dear Sir or Madam,

Recently we spent a delightful holiday in Western Australia, with many varied activities, one of which was the Whale Watching cruise as advertised in your flier, departing East Street Jetty, East Fremantle at 12.00 noon and returning at 2.00pm. I am sorry to say this was not a pleasant experience, and this is the reason why I am writing to you.

The only human voice my daughter and I heard for the whole voyage, in an official way, was when a man indicated the gangway and said “you can get on, now.”

There were no words of welcome then, or over the loudspeaker. We were sat, with a dozen or so other people, on the upper deck. We did not hear one word from the loudspeaker for the whole voyage. At the end of the trip we trailed off the boat, with not a staff member in sight – no farewell, nor somebody to say “Sorry we did not see any whales today – better luck next time” or words to that effect.

During the two hour voyage we charged about the ocean at top speed. I wondered if this was an exercise to see how fast the Supercat could go. My seventeen year old daughter looked white, and felt ill for the rest of the day. I hung on to a pole and was able to take my mind off the tossing and turning by reading a book. At one point there was some excitement when all of the passengers observed a black fin in the water.

However, at that moment we were speeding in the opposite direction, and soon lost sight of it. I was so disappointed I went below (hanging carefully on to the rails), to see if there was anyone keeping watch.

There were three staff members at the back of the boat, inside. I spoke to one who was sitting up, but he was sound asleep and did not respond. Another was stretched full length on a seat – he was also asleep. A lad aged about 14 was awake. In response to my question he said he did not know if any whales had been sighted the day before as he was not working. He had heard that there were not many whales about at present...

The reason I am writing this letter is so that you can improve the experience for your customers. I deliberately have not given specific dates, to avoid singling out staff. I do feel that we are entitled to a refund of our fares of $15 and $12, but I leave this to your discretion.

I am not sending a copy of this letter to the minister of tourism although advised to do so by my friends.

Sincerely

(Signed)”

Mrs Dilatte rang the passenger and established the date of the cruise, and from that established that Mr Cooper had been the skipper. She later forgot the date. It was agreed in the course of the hearing that it was Friday, 4 October 1996. According to the log, Mr Cooper was the skipper on that cruise, and Mr Lawrence was one of the deckhands.

Mr Lawrence was not asked about the cruise, because the parties had not rediscovered the date of the cruise at the time he gave his evidence.

Mr Cooper only recalls one occasion when no whales were found during a whale watching cruise. He believes an expert whale commentator would have been available that day, as was the usual practice, to provide commentary. The only explanation he could offer for the apparent lack of commentary was that the speakers must have been malfunctioning or turned down.

The status of this evidence is problematic. The passenger was identified. She is resident in South Australia. The possibility of taking her evidence by telephone was contemplated. In the end, the parties decided to proceed on the basis that it was conceded that Mr Cooper had been skipper on the day complained of, and that Oceanic had received the complaint. I can, given the indirect nature of the evidence, make no finding as to the truth or otherwise of the complaint. The mere fact that complaints are received, whether or not they are objectively justified, can be relevant where part of the purpose of a position is to generate goodwill: eg Venn v Wesfarmers (unreported, IRCA No. 128 of 1997, RD Farrell JR, 16 April 1997)

One can appreciate that the receipt of such a letter would cause an employer to be concerned about the manner in which a skipper was going about his duties.

The evidence concerning the allegation that Mr Cooper consistently failed to perform his commentary duties on other cruises was inconclusive. I accept that there were problems with the public address systems on occasion, in that they were distorted, or didn’t work, as a result commentary could not be given on some occasions through no fault of Mr Cooper. It may be that he failed to provide commentaries on other occasions. However, the evidence on the issue is sufficiently confused that I can not be satisfied that it is more likely than not that he was derelict in his duty to provide the commentary. 

On the more general issue of Mr Cooper’s dealings with passengers, from my opportunity to observe him in the course of the hearing and when giving evidence, I accept that he has a tendency to irascibility, and that in the normal course his manner of speaking is abrupt. I can see how passengers might sometimes have perceived him as being discourteous in his dealings with them, even if that was not his intention.

Whether or not any such offence caused to passengers was intended or not, it is a problem for Oceanic if passengers were offended. The problem is no less if the offence was not intended. They would, in my view, have been entitled to require Mr Cooper to take more care in his dealings with passengers to avoid such offence in future. However, while I accept that the importance of courteous treatment of passengers was stressed by Mr Dilatte in general terms, it does not appear that it was ever made clear to Mr Cooper that he was failing to reach the required standard.

The final issue in this context concerns Mr Cooper’s personal presentation. Mr Cooper was expected to be neat and tidy, and wore a uniform with a white shirt and blue trousers. Oceanic allege that his appearance was not up to the standard of the position as a skipper. Having considered the evidence on this matter, I am not satisfied that it assists Oceanic. Mr Dilatte did raise Mr Cooper’s level of cleanliness with him on at least one occasion. However, Mr Cooper’s duties as engineer often required him to get dirty working on the engine and other machinery. I accept that the facilities available on the ferries and on the jetties were not such that Mr Cooper could always restore himself to a pristine level of cleanliness in the short-term. I am not satisfied that his presentation was often less than adequate, and when it was I accept that there were acceptable reasons for any such shortcomings. 

Given the state of the evidence on all these matters, I am satisfied that Mr Cooper’s level of performance in his dealings with passengers did not meet Mr Dilatte’s standards. I am not satisfied, however, that Mr Dilatte was aware that his performance was below standard in this regard.

Valid reason: Dealing with his Employer and Fellow Employees

Mr Dilatte was also dissatisfied about the manner in which Mr Cooper conducted himself with other employees.

Mr Dilatte gave the Court hearsay evidence that he was told by an employee, Mr Chapman,  that Mr Cooper had told Mr Chapman that he disliked Mr Dilatte, that Mr Dilatte didn’t know how to run his business and that his boats were badly made.

When it was put to Mr Cooper that he had spoken in this way, he said that all the employees “ran the company down” in their conversations with each other, and that Mr Chapman was speaking to him in the same way. He stood by the assertion that Oceanic’s ferries were not good vessels, that they displayed bad workmanship and were difficult to handle. He mentioned that the company was jokingly referred to by its employees as “ocean panic” cruises.

Some of the issues which arose in connection with Mr Cooper’s dealings with passengers also arose in his dealings with other employees. There was evidence that he was abrupt and moody. Mrs Dilatte complained that he never smiled, would mumble when speaking to her and sometimes answered “in a smart way”.

Evidence was given of three particular incidents.

On one occasion, while the Supercat was moored at Rottnest Island, Mr Wright, the deckhand, was approached by a crew member from another vessel, and asked whether the Supercat could move its position. Mr Cooper was on the telephone at the time. Mr Wright responded that he didn’t see any difficulty, but he would check with Mr Cooper.

Mr Cooper reacted very angrily when Mr Wright told him what had happened. Mr Cooper explained to the Court the background to his outburst, whereby the request to move had a significance that he believes Mr Wright did not appreciate. Nevertheless, his response was an over-reaction, and was unwarranted given that Mr Wright had not finally agreed to the request.

After this, Mr Wright requested of Mrs Dilatte that he not be rostered to work with Mr Cooper. Mrs Dilatte was not able to fully grant that request, given the constraints on her rostering options. Mr Cooper says he spoke with Mr Wright and resolved the problems between them. I accept that he attempted to do so, but suspect he did not fully succeed.

Mr Lawrence, the other deckhand to give evidence, was asked about Mr Cooper’s dealings with him. He described Mr Cooper as more “full on” than the other skippers, with the result that the crew was kept under more pressure. He stopped short of describing Mr Cooper’s approach as unfair. Mr Lawrence suggested that when Mr Cooper was angry with a crew member, they usually deserved it.

The complaint of Mr Wright came to Mr Dilatte’s attention. He took Mr Cooper aside a week or two later and asked him to deal more sensitively with the crew.

Mr Wright also had a confrontation with Mrs Dilatte, some months before his dismissal. He attended to collect his roster, and was disappointed to see that he had been rostered all week on the “Classique”, which he disliked operating. In his annoyance, he screwed up the roster, threw it in the bin and walked out. He claims that he did not think Mrs Dilatte was looking. However, Mrs Dilatte witnessed what he had done and was upset. When Mr Cooper calmed down and retraced his steps to retrieve the roster, Mrs Dilatte spoke to him angrily, remonstrating about the time she put into preparing the rosters. He apologised. Mr Dilatte did not learn of this incident until after the dismissal.

Finally, Mr Cooper had an altercation with Ms Alita Gaspar, an employee who worked in the ticketing office. Mr Cooper had come into the office on behalf of  some customers to speak with Ms Gasper about their ticketing arrangements. For reasons which he believes were incorrect, Ms Gaspar insisted that they were unable to travel on the ferry. While Ms Gaspar was on the telephone to Mrs Dilatte, Mr Cooper asked her if he could speak with Mrs Dilatte before she hung up. Ms Gaspar then hung up. She says he reacted angrily and threw the telephone across the desk, saying “Is it too much effort for you to ask Gaby (Mrs Dilatte) if I could speak to her?” Mr Cooper denies that he was angry, that he shouted or that he threw the telephone. He says he later apologised to her, and stated in his evidence that he had a lot of respect for her.

The altercation took place in front of customers. I accept that Ms Gasper was upset to the extent that she began crying. She made her distress known to Mrs Dilatte and, through her, to Mr Dilatte. Mr Dilatte reprimanded Mr Cooper about the incident and told him he was not to interfere with the ticketing arrangements. There was no evidence of further difficulties between he and Ms Gaspar.

To the extent that Mr Dilatte was aware of shortcomings in Mr Cooper’s dealings with other employees of Oceanic, I doubt that they would, in themselves have been enough to cause Mr Cooper’s dismissal. They would, however, have been a weight in the scale.

The Circumstances of the Termination

Mr Dilatte’s evidence was effectively that the decision was made in principle to terminate Mr Cooper’s employment some time before he was actually dismissed. Mr Dilatte’s evidence was somewhat inconsistent as to which incident led him to conclude that Mr Cooper should in due course be dismissed, but it seems most likely that it was the occasion on which he first broke the bollard.

It seems that it was not convenient for Oceanic to dismiss him at that time, however, because business was busy and they did not have a replacement skipper available. By the time Mr Cooper was eventually dismissed, it was unnecessary to replace him for two to three months.

The receipt of the passenger’s letter dated 17 October 1996 was the catalyst for the dismissal. On learning about it, Mr Dilatte instructed Mrs Dilatte not to roster Mr Cooper any more. When Mr Cooper contacted Mr Dilatte to ask why he was no longer being rostered, Mr Dilatte told him he was “finished”, citing the damage to the boats, abuse of employees and complaints from passengers as the reasons.

Mr Cooper was paid a week in lieu of notice, based on his average earnings over the past three months.

Conclusion: Whether the Reasons for Dismissal Were Genuinely Connected with Mr Cooper’s Capacity or Conduct

In my view it would be artificial to regard the passenger’s letter as the reason for Mr Cooper’s dismissal. It was the occasion for the dismissal, but sufficient reasons had accumulated in Mr Dilatte’s mind to bring about the dismissal some time earlier. The letter was not a decisive factor, but rather a reminder to Mr Dilatte of his earlier decision.

In terms of contractual analysis, issues of waiver might arise in these circumstances. If an employer does not, for example, treat an act of the employee as grounds for summary dismissal at the time at which it occurred, he is taken to have waived the opportunity to rely upon it at some future time. Mr Dilatte is not attempting to justify summary dismissal, however. He is effectively contending that he merely reached the view that Mr Cooper was an unsatisfactory employee for a range of reasons, and acted upon that view to dismiss Mr Cooper when it was convenient for Oceanic to do so.

Given the narrow approach taken by the Cosco decision, I do not consider I am able to say that Mr Dilatte’s reasons for dismissing Mr Cooper were not “genuinely connected” with Mr Cooper’s capacity or conduct. Nor, on balance, am I able to say it was not “sound, defensible or well founded” with respect to its connection with Mr Cooper’s capacity or conduct.

The area of greatest difficulty for Oceanic was Mr Dilatte’s failure, with respect to some of the matters relied upon, to warn Mr Cooper that his performance was considered to be inadequate, so that improvement was required. I accept that Mr Dilatte sometimes raised these matters in general terms in group meetings. However, this will not always be effective. Mr Dilatte claims that if Mr Cooper’s performance had improved he would not have dismissed him. In some respects, however, he was not told he had to improve.

This is a different issue from the requirement that employees be given an opportunity to defend themselves, which is considered below. It involves clear communication to employees in advance of the standard of performance required of them. In some respects, however, such as Mr Dilatte’s requirement for greater caution in avoiding damage to the boats, I am satisfied that Mr Cooper was aware of the standards required of him.

Whether Mr Cooper had an Opportunity to Defend Himself

Under Section 170DC of the Act, Oceanic were required, before terminating Mr Cooper’s employment, to give him the opportunity to defend himself against any allegations relating to his conduct or performance unless Oceanic could not reasonably have been expected to give Mr Cooper that opportunity.

Mr Dilatte conceded that he did not ever raise with Mr Cooper many of the matters which led to his dismissal.

At one point in his evidence he said that after the incident with the bollard, he “let it lie”, saying that at that point he knew that Mr Cooper was not the person to operate a passenger vessel of that nature. However, he went on to say that he did not want to alert Mr Cooper that he was going to be dismissed, because of the capacity of a skipper to maliciously damage a boat in a way that could not be proved.

The requirements set out in Section 170DC do not necessitate employees to continue working in the interim. It was Mr Dilatte’s decision to not act immediately to investigate all of the incidents upon which he relied, put them to Mr Cooper and, assuming Mr Cooper’s response was inadequate, to dismiss him.

Oceanic has therefore breached Section 170DC.

Whether Mr Cooper was Dismissed for Reasons Including a Prohibited Reason

Section 170DF (1) relevantly provides that:

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:

...(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...

Section 170EDA(2) places the onus on Oceanic to prove that the employment was not terminated for that reason or for reasons that included that reason.

Mr Cooper says that soon after the Supercat II came into service, the skippers approached Mr Dilatte about visibility problems through the wheelhouse windows. Mr Dilatte dismissed their concerns.

Then, in July 1996, a Marine Officer from the Department of Transport boarded the Supercat II while Mr Cooper was skipper, and travelled to Rottnest. He says Mr Cooper complained to him about the inadequacy on the Supercat II of the window wipers and about the malfunctioning bilge alarm. The officer also had concerns about the extent of what I will paraphrase as “blind spots” in the wheel house.

The Department of Transport wrote to Oceanic on 15 August 1996, raising two items of concern with a view to their being further inspected and, if necessary, rectified. They were a visibility problem through the wheelhouse windows and the positioning of life rafts. In his evidence, Mr Dilatte downplayed the significance of the matters raised by the Department of Transport, saying any necessary rectifications weren’t of any great concern to Oceanic.

Mrs Dilatte asked each of the skippers whether they knew anything about the Department of Transport inspection. Mr Cooper denied it.

Mr Cooper says that one of the other skippers, Mr Stewart Franke, had told him that Mr Dilatte had been asking questions about the visibility issue, enquiring who had brought it up with the Department of Transport and saying that whoever had done it would get the sack. Mr Dilatte did not have the opportunity to specifically deny saying this, as it was not put to him. Mr Cooper conceded that he may not have advised his advocate of Mr Franke’s account before Mr Dilatte’s evidence. In any event, as Mr Franke did not give evidence, I will disregard Mr Cooper’s evidence on that matter as hearsay.

Mr Cooper also claims that Mrs Dilatte, during her angry outburst on the occasion when he had screwed up his roster, which he places in early September, said “We’ve had enough - you’re slagging the company all over the place. You’ve spoken to the Department of Transport”. This was not specifically put to Mrs Dilatte.

At a meeting between the Department of Transport officers and Rottnest Ferry Masters, Engineers and crew on 12 August 1996, Mr Cooper raised a concern about the confidentiality of information passed to the Department regarding defects and other problems aboard passenger ferries. According to the minutes, he claimed that he had made a report to the Department and had been confronted on the matter by the owner (Mr Dilatte) shortly thereafter. He says he was referring to what he was told by Mr Franke.

He contends that his complaints to the Department of Transport were the reason or one of the reasons for his dismissal.

A number of preliminary issues might arise. Was any complaint “filed”? Was there an allegation of violation of laws or regulations? Is the Department of Transport a “competent administrative authority” for the purposes of Section 170DF?

However, the admissible evidence is such that it is not, in my view, necessary to resolve those questions. Assuming they were all resolved in the applicant’s favour, I would find that the respondent has satisfied me that it is more likely than not that Mr Cooper’s complaint to the Department of Transport was not a reason for his dismissal. Mr Cooper himself conceded that he only came to the conclusion that the complaint was a factor in his dismissal some time after his dismissal when he had had time to think about it. Aspects of his evidence concerning the occasions when Mr and Mrs Dilatte are said to have raised the issue were not convincing. The multiplicity of other factors raised by Oceanic as reasons for the dismissal were such that the decision to dismiss was explicable without need to have regard to the complaint to the Department. Finally, even allowing for the fact that there was some delay between Mr Dilatte deciding Mr Cooper should go, and the effecting of his dismissal, the fact that the letter from the Department was received two months prior to the dismissal is a further factor tending to negate any connection. 

Remedy

Given that Oceanic contravened Section 170DC, Mr Cooper is entitled to a remedy. The remedy sought was an order that Oceanic pay Mr Cooper compensation pursuant to Section 170EE(2).

It has been recognised that the assessment of compensation in these cases is not an exact science. In the event, I have decided to award considerably less than Mr Cooper claimed. In the remainder of these reasons I will outline the considerations which led to that result.

At the time Mr Cooper gave his evidence, he had been dismissed for a little more than three months. Mr Cooper assessed that his average weekly gross income from Oceanic had been $697.00. This was not challenged.

Mr Cooper’s claim proceeded on the assumption that, had Oceanic not contravened the Act, he would have continued to earn income at the average rate of $697 per week. However, in assessing the compensation that is appropriate, the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened.

The breach involved here was Mr Dilatte’s failure to give Mr Cooper an opportunity to defend himself against the allegations. While it cannot be assumed that Mr Cooper would have been dismissed anyway, even had he received that opportunity, neither can I ignore that possibility.

The flexibility inherent in the employment relationship was such that if Mr Dilatte remained dissatisfied with Mr Cooper’s suitability in some or all respects, he could have instead reduced his hours, and thus his average weekly income. He could have engaged him for a higher proportion of the time as an engineer rather than a skipper, which would have involved a lesser rate of pay.

Also, the fact that Mr Cooper was not replaced for two or three months suggests that Oceanic were not as busy and that his hours were likely to have been less in the ordinary course of things.

In deciding whether the employment would have continued indefinitely, I must also take into account another issue which came to light in the course of the evidence.

Mr Cooper revealed in the course of his evidence that he suffers from industrial deafness. There was no medical evidence, and indeed, because its relevance was not clear to the parties until the hearing had begun, there was a dearth of evidence generally on the issue. It appeared to me from difficulties Mr Cooper experienced while giving his evidence that his hearing difficulties are quite marked. He had difficulties, for example, understanding questions put to him by Counsel at a conversational tone from a distance of about three metres. He says his hearing is better outside, and that his difficulty increases when sound reverberates.

It seems to me that this disability is likely to have interfered with the performance of Mr Cooper’s duties and, in particular, that it has worrying implications for safety on vessels he skippered. Mr Cahill, a skipper called by Mr Cooper, expressed the view that a deaf skipper would be a safety hazard. It would be speculative on the evidence to presume that it played any part in the bollard incident, but the advocate for Mr Cooper did suggest that his deafness may contribute to Mr Cooper’s irritability and perceived abruptness.

There was evidence that a medical examination, including a hearing test, was required in order to obtain a the necessary Marine ticket. There was, however, limited evidence as to whether persons holding such tickets have to continue to meet standards of hearing in order to retain their tickets.

It may well be that Oceanic could demonstrate that adequate hearing was an inherent requirement of the job as skipper.

Mr Dilatte says he did not know that Mr Cooper had hearing difficulties, and that if Mr Cooper had disclosed it during his interview he would not have been hired, because it would, in Mr Dilatte’s view, be dangerous. Mr Wright, one of the deckhands, says he knew of Mr Cooper’s hearing difficulty. Mr Cahill said that he believed Mr Cooper’s hearing was adequate at the time he worked with him, but that they both had to be concentrating the whole time.

Mr Cooper says his hearing has deteriorated further in the past nine months. I must in assessing compensation take into account the real prospect that, had Mr Cooper not been dismissed, his hearing difficulties would have come to Mr Dilatte’s attention and have resulted in his dismissal. That dismissal may well have been lawful.

Mr Cooper was fortunate enough to have obtained casual employment elsewhere after his dismissal, and to have earned at least $2,557 between 8 November and 20 December 1996. It is reasonable to assume that he would continue to have some success in obtaining such employment. While his new casual employment may not be as secure, plentiful and remunerative as his employment with Oceanic had been, it is apparent that his actual and prospective loss as a result of Oceanic’s breach of the Act will be something less than the full amount he would otherwise have earned with Oceanic. Based on his apparent rate of alternative income in the months following his dismissal, I have assumed that he has and will defray the loss he would otherwise have suffered by at least $250 per week.

Expressing the above considerations in a calculation, I have decided to award Mr Cooper for the loss he would incur in ten weeks, allowing for the significant probability that his employment would have ended lawfully in any event had the Act not been breached, either because the opportunity to defend himself would not have changed the result, or because of dangers arising from his hearing difficulties.

In assessing the loss incurred by Mr Cooper over those ten weeks, I am of the view that his earnings from Oceanic are likely to have been less than his previous average earnings, and have assumed a figure of $400 per week. Given my assumption that this loss would be defrayed by $250 per week, I have awarded compensation of $1,500.

Finally, there was an attempt brought to claim outstanding entitlements to which it was contended Mr Cooper was entitled under the Minimum Conditions of Employment Act (WA). I refer to my findings of fact set out above in my discussion of the possible application of Regulation 30B. My findings are such that I am satisfied that Mr Cooper would be a casual employee for the purposes of the Minimum Conditions of Employment Act, and therefore not entitled to the benefits claimed.

I certify that this and the preceding thirty (30) pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.

Associate:

Dated:            4 February 1998

APPEARANCES

Representative for the applicant:                   Mr T. Boronovskis
  Australian Maritime Officers Union

Counsel appearing for the respondent:          Mr C. Chenu
Solicitors for the respondent:  Durack & Zilko

Dates of Hearing:  28, 29, 31 January and 5 March 1997

Date of Order:  27 January 1998
Date of Decision:  4 February 1998