Cox, Colin v Conroys Smallgoods Pty Ltd
[1997] FCA 867
•26 August 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - complaint of unlawful termination of employment - review of exercise of power of judicial registrar - whether valid reason for termination of employment - walk-out by employees - whether employer assented to that action - whether decision to terminate justifiable or defensible on an objective analysis of the circumstances - whether employees given an opportunity to respond to allegations that they had abandoned their employment
Workplace Relations Act 1996 ss 170DC, 170DE, 170EA, 170EE
COLIN COX AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
SA 1105R of 1996
DARRIN DAVEY AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
SA 1106R of 1996
JEFFREY DAVEY AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
SA 1107R of 1996
EDWARD HUNTER AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
SA 1113R of 1996
DEAN LAURITSEN AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
SA 1114R of 1996
CHRISTOPHER SPARKS AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
SA 1120R of 1996
DION SPARKS AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
SA 1121R of 1996
SCOTT ANTHONY SPARKS AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
SA 1122R of 1996
CHRISTIAN DOUGLAS WOOD AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION v CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
SA 1125R of 1996
MARSHALL J
MELBOURNE
26 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) SA 1105R of 1996 ) GENERAL DIVISION )
BETWEEN: COLIN COX
First ApplicantAUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
Second ApplicantAND: CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN ADELAIDE AND MELBOURNE) DATED: 26 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
It is declared that in terminating the employment of the first applicant the respondent contravened ss 170DC and 170DE(1) of the Workplace Relations Act 1996 (“the Act”).
Pursuant to s 170EE(1) of the Act the respondent shall on or before 19 September 1997 reinstate the first applicant to the position in which he was employed immediately before the termination or to another position on terms and conditions no less favourable than those on which the first applicant was employed immediately before the termination.
The respondent shall on or before 19 September 1997 pay the first applicant an amount representing his remuneration lost because of the termination in accordance with the principles referred to in these reasons. In the event of the parties being unable to reach agreement on the relevant amount, each party has recourse to the Court pursuant to liberty to apply under the Federal Court Rules. A reinstatement voluntarily made by the respondent earlier than 19 September 1997 will impact on the amount of remuneration lost.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) SA 1106R of 1996 ) GENERAL DIVISION )
BETWEEN: DARRIN DAVEY
First ApplicantAUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
Second ApplicantAND: CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN ADELAIDE AND MELBOURNE) DATED: 26 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
It is declared that in terminating the employment of the first applicant the respondent contravened ss 170DC and 170DE(1) of the Workplace Relations Act 1996 (“the Act”).
Pursuant to s 170EE(1) of the Act the respondent shall on or before 19 September 1997 reinstate the first applicant to the position in which he was employed immediately before the termination or to another position on terms and conditions no less favourable than those on which the first applicant was employed immediately before the termination.
The respondent shall on or before 19 September 1997 pay the first applicant an amount representing his remuneration lost because of the termination in accordance with the principles referred to in these reasons. In the event of the parties being unable to reach agreement on the relevant amount, each party has recourse to the Court pursuant to liberty to apply under the Federal Court Rules. A reinstatement voluntarily made by the respondent earlier than 19 September 1997 will impact on the amount of remuneration lost.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) SA 1107R of 1996 ) GENERAL DIVISION )
BETWEEN: JEFFREY DAVEY
First ApplicantAUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
Second ApplicantAND: CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN ADELAIDE AND MELBOURNE) DATED: 26 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
It is declared that in terminating the employment of the first applicant the respondent contravened ss 170DC and 170DE(1) of the Workplace Relations Act 1996 (“the Act”).
Pursuant to s 170EE(2) and (3) of the Act the respondent shall on or before 19 September 1997 pay the first applicant compensation in the sum of $8162.86.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) SA 1113R of 1996 ) GENERAL DIVISION )
BETWEEN: EDWARD HUNTER
First ApplicantAUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
Second ApplicantAND: CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN ADELAIDE AND MELBOURNE) DATED: 26 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
It is declared that in terminating the employment of the first applicant the respondent contravened ss 170DC and 170DE(1) of the Workplace Relations Act 1996 (“the Act”).
Pursuant to s 170EE(1) of the Act the respondent shall on or before 19 September 1997 reinstate the first applicant to the position in which he was employed immediately before the termination or to another position on terms and conditions no less favourable than those on which the first applicant was employed immediately before the termination.
The respondent shall on or before 19 September 1997 pay the first applicant an amount representing his remuneration lost because of the termination in accordance with the principles referred to in these reasons. In the event of the parties being unable to reach agreement on the relevant amount, each party has recourse to the Court pursuant to liberty to apply under the Federal Court Rules. A reinstatement voluntarily made by the respondent earlier than 19 September 1997 will impact on the amount of remuneration lost.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) SA 1114R of 1996 ) GENERAL DIVISION )
BETWEEN: DEAN LAURITSEN
First ApplicantAUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
Second ApplicantAND: CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN ADELAIDE AND MELBOURNE) DATED: 26 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
It is declared that in terminating the employment of the first applicant the respondent contravened ss 170DC and 170DE(1) of the Workplace Relations Act 1996 (“the Act”).
Pursuant to s 170EE(2) and (3) of the Act the respondent shall on or before 19 September 1997 pay the first applicant compensation in the sum of $7411.56.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) SA 1120R of 1996 ) GENERAL DIVISION )
BETWEEN: CHRISTOPHER SPARKS
First ApplicantAUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
Second ApplicantAND: CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN ADELAIDE AND MELBOURNE) DATED: 26 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
It is declared that in terminating the employment of the first applicant the respondent contravened ss 170DC and 170DE(1) of the Workplace Relations Act 1996 (“the Act”).
Pursuant to s 170EE(2) and (3) of the Act the respondent shall on or before 19 September 1997 pay the first applicant compensation in the sum of $9529.15.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) SA 1121R of 1996 ) GENERAL DIVISION )
BETWEEN: DION SPARKS
First ApplicantAUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
Second ApplicantAND: CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
Respondent
JUDGE): MARSHALL J PLACE: MELBOURNE (HEARD IN ADELAIDE AND MELBOURNE) DATED: 26 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
It is declared that in terminating the employment of the first applicant the respondent contravened ss 170DC and 170DE(1) of the Workplace Relations Act 1996 (“the Act”).
Pursuant to s 170EE(2) and (3) of the Act the respondent shall on or before 19 September 1997 pay the first applicant compensation in the sum of $10587.94.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) SA 1122R of 1996 ) GENERAL DIVISION )
BETWEEN: SCOTT ANTHONY SPARKS
First ApplicantAUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
Second ApplicantAND: CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN ADELAIDE AND MELBOURNE) DATED: 26 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
It is declared that in terminating the employment of the first applicant the respondent contravened ss 170DC and 170DE(1) of the Workplace Relations Act 1996 (“the Act”).
Pursuant to s 170EE(2) and (3) of the Act the respondent shall on or before 19 September 1997 pay the first applicant compensation in the sum of $9976.82.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) SA 1125R of 1996 ) GENERAL DIVISION )
BETWEEN: CHRISTIAN DOUGLAS WOOD
First ApplicantAUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
Second ApplicantAND: CONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN ADELAIDE AND MELBOURNE) DATED: 26 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
It is declared that in terminating the employment of the first applicant the respondent contravened ss 170DC and 170DE(1) of the Workplace Relations Act 1996 (“the Act”).
Pursuant to s 170EE(2) and (3) of the Act the respondent shall on or before 19 September 1997 pay the first applicant compensation in the sum of $1532.98.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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COLIN COX and
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
ApplicantsCONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
RespondentSA 1105R of 1996
DARRIN DAVEY and
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
ApplicantsCONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
RespondentSA 1106R of 1996
JEFFREY DAVEY and
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
ApplicantsCONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
RespondentSA 1107R of 1996
EDWARD HUNTER and
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
ApplicantsCONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
RespondentSA 1113R of 1996
DEAN LAURITSEN and
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
ApplicantsCONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
RespondentSA 1114R of 1996
CHRISTOPHER SPARKS and
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
ApplicantsCONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
RespondentSA 1120R of 1996
DION SPARKS and
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
ApplicantsCONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
RespondentSA 1121R of 1996
SCOTT ANTHONY SPARKS and
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
ApplicantsCONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
RespondentSA 1122R of 1996
CHRISTIAN DOUGLAS WOOD and
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
ApplicantsCONROYS SMALLGOODS PTY LTD, TRADING AS PORT PIRIE ABATTOIRS
RespondentSA 1125R of 1996
JUDGE: MARSHALL J PLACE: MELBOURNE (HEARD IN ADELAIDE AND MELBOURNE) DATED: 26 AUGUST 1997
REASONS FOR JUDGMENT
In each of the applications before the Court the applicant employee has sought a review of the exercise of power by a Judicial Registrar in proceedings pursuant to s 170EA of the Workplace Relations Act 1996 (“the Act”). On 29 November 1996, Judicial Registrar L Farrell made orders for the payment of compensation to each of the applicants in varying amounts. On review, four of the applicants seek orders for reinstatement and remuneration lost. Each of the other applicants seek compensation in amounts greater than that ordered by the Judicial Registrar. The respondent seeks orders dismissing each application.
FACTUAL BACKGROUND
The respondent, Conroys Smallgoods Pty Ltd, trading as Conroys Port Pirie Abattoirs, conducts an abattoir operation at Port Pirie, a rural city in South Australia. The directors of the respondent are Mr Andrew Conroy and his brother Mr Patrick Conroy. (Unless otherwise indicated in these reasons, references to Mr Conroy are references to Mr Andrew Conroy.) The plant manager at the abattoir is Mr Evans. The abattoir has been operated for many years by a series of owners but since January 1993 it has been operated by the respondent.
The sequence of events that led to the termination of the employment of each applicant commenced with the decision by Mr Evans to transfer one of the applicants, Mr Wood, from his duties as a slaughterman to labouring duties. The transfer decision was made on account of perceptions held by management that Mr Wood had a poor attendance record and “attitude problems”. Mr Wood’s transfer occurred on 29 July 1996. On 30 July 1996 there was a meeting of the respondent’s employees at which a decision was taken to go home in protest at what appeared to them to be a demotion of Mr Wood.
On 31 July 1996 Mr O’Leary, who was then a State Organiser with the Australasian Meat Industry Employees Union (“the union”), attended at the abattoir. He approached Mr Evans concerning Mr Wood’s situation and was informed that nothing had changed. He then met with the union delegate at the abattoir, Mr Farrugia. At about 6.30 am Mr Farrugia and Mr O’Leary approached Mr Conroy and Mr Evans and asked if they would agree to place Mr Wood back on the slaughtering line. Mr Evans and Mr Conroy refused to do so. At about 6.45 am Mr O’Leary chaired a meeting of the workers on the slaughter floor (that is, a meeting of both slaughtermen and labourers) in the lunch room. A motion was moved at the meeting that the workers strike in support of Mr Wood. Mr O’Leary recommended against the withdrawal of labour. His recommendation was rejected by the workers. Mr O’Leary then suggested that the motion be amended by the deletion of the word “strike” and the inclusion of the words “go out in protest” and that the motion should say that they would return to work “tomorrow morning”, which would allow the union time to negotiate with management regarding the dispute about Mr Wood’s transfer or demotion.
The motion, as amended, was carried. After the meeting Mr Farrugia and Mr O’Leary met with Mr Evans and Mr Conroy. Mr O’Leary testified that he informed Mr Conroy that the workers had elected to go home in protest at Mr Wood’s demotion but that they would return to work the following morning. Mr O’Leary was not challenged on that testimony under cross-examination. Mr Evans agreed under cross-examination that Mr O’Leary told him that the workers “would go out in protest, that is take industrial action in protest, and return to work tomorrow morning”. Mr Conroy gave evidence that Mr O’Leary informed him of the outcome of the meeting. It was put to Mr Conroy in cross-examination that he was told by Mr O’Leary that “a resolution had been passed”. His reply was “I’m not sure if they were his exact words but he indicated the feeling of the men”. Mr Conroy was then asked the following questions and gave the following answers:
· “He [Mr O’Leary] said to you that they had elected to go home in protest today and return to work tomorrow? - He definitely didn’t use the words ‘return to work tomorrow’ in my hearing.
· I suggest to you that he did? - There was no indication at any stage from any member of the union that the men would be returning tomorrow to work.”
I do not accept this evidence of Mr Conroy. I prefer the account of the discussion between Mr O’Leary on the one hand and Mr Conroy and Mr Evans on the other which was given by Mr O’Leary and confirmed by Mr Evans. I find that Mr O’Leary told Mr Evans and Mr Conroy that the men had resolved to go home in protest but would return to work the following morning. This finding is consistent with the fact that a resolution in the terms referred to earlier in these reasons was made at the lunch room meeting, and that it would be expected that the union official at the site would convey the terms of that resolution to management.
After Mr O’Leary informed Mr Conroy of the text of the resolution, Mr Conroy asked Mr O’Leary if he understood the union’s obligations under the disputes procedure in the relevant award. A difference of opinion between the two men ensued as to which side, management or the workers/union, was in breach of that procedure. Mr Conroy said that he wanted to address the workers to be sure that they understood their obligations under the award. Mr Evans then arranged for a meeting of workers in a yard outside the maintenance shed. The meeting commenced at about 7.15 am. The meeting was heated. Mr O’Leary attacked the respondent, inter alia, for not properly handling the dispute about Mr Wood. Mr Conroy attacked the union on the same issue. He encouraged the workers to return to work. When the meeting had become quite heated, Mr Conroy produced a box which he had been carrying under his arm and announced that he had termination letters for everyone. He said that if the workers did not take the letters they would be posted out to each worker.
Mr Evans was asked under cross-examination if Mr Conroy told the assembled workers that there was work for them and “if they did not turn up to work tomorrow morning they would be sacked for abandoning their employment”. Mr Evans replied that although he was unable to recall the exact words used by Mr Conroy, Mr Conroy used “words to that effect”. Mr Evans testified that he then said to the assembled workers that those who wanted to return to work should do so, and those who did not should go.
Under re-examination, Mr Evans was asked the following questions and gave the following answers:
· “Did Mr Conroy say to the employees: Those who want to go, go and you can come back tomorrow? - No.
· Are you sure that Mr Conroy never said to the employees: Go and come back tomorrow, those who want to go? - No.”
This evidence is not necessarily inconsistent with Mr Evans’ evidence under cross-examination on this issue as it was never put to Mr Evans that Mr Conroy had uttered the precise words “Go and come back tomorrow, those who want to go”. What Mr Evans agreed with under cross-examination was that Mr Conroy uttered words to the effect that “if they did not turn up to work tomorrow morning they would be sacked for abandoning their employment”.
Any reliance by the respondent on the answers given in re-examination by Mr Evans, if those answers are interpreted as being supportive of a view that Mr Conroy said nothing about the workers coming “back tomorrow”, can only reflect adversely upon Mr Evans’ credibility and, in any event, leads the Court to prefer the consistent accounts of what Mr Conroy relevantly said at the meeting which were given by each applicant and by Mr O’Leary. No applicant was challenged on his evidence by way of statutory declaration before the Judicial Registrar and which was treated as evidence before me on the review, of what Mr Conroy said about “returning to work tomorrow”. Only Mr O’Leary was challenged on this issue under cross-examination on the review. His testimony was relevantly unshaken. I accept the evidence of each applicant and Mr O’Leary and the evidence of Mr Evans under cross-examination (unaffected by any response to leading questions in re-examination which, on one view, may have elicited some inconsistent evidence) that Mr Conroy said to the assembled workers words to the effect that if they did not return to work the following morning they would be sacked for abandoning their employment. Consequently, I reject as untruthful Mr Conroy’s evidence that he did not make “any offer to the employees regarding return to work”. I also reject as untruthful his denial under cross-examination of having said to the workers that “if they did not return the following morning they would be terminated for abandoning their employment”.
I observed Mr Conroy as he was seated in the courtroom while Mr Evans gave his evidence. He was seated alone and at no time appeared to be distracted.
After he had denied under cross-examination using words to the effect of those which I have found he used at the meeting regarding returning to work on the following morning, I put to Mr Conroy the following question:
· “Does it surprise you that that appeared to be Mr Evans’ recollection in his evidence?”
Mr Conroy’s answer was -
“I didn’t hear that from Mr Evans’ evidence but I have no memory of saying those words.”
I do not accept that Mr Conroy did not hear what was said by Mr Evans in his cross-examination. I am also unimpressed by Mr Conroy’s reversion to a lack of memory regarding the relevant words, instead of a denial, when I squarely raised the issue with him. The use of words by him to the effect that the workers would be sacked if they did not return to work on the following morning is consistent with him being aware, as I have found he was, of the text of the resolution made earlier that morning calling for a walk-out in protest with a return to work the following morning.
Mr Conroy’s credibility is also severely impaired by his acknowledgment under cross-examination that by the time of the meeting on 31 July his position was that if the men did not return to work the next day they would be terminated, and that his position did not change until after the meeting.
No-one at the meeting accepted Mr Conroy’s invitation to take a letter of termination. No person had his employment terminated at the meeting. The termination letter was in the following form:
“Mr ......
RE: UNLAWFUL STOPPAGE AT THE PORT PIRIE ABATTOIRS
We refer you to Part 1 Cl5A of the Federal Meat Award, Settlement of dispute procedure.
Part C: ‘If the matter is not settled it shall be submitted to the Australian Industrial Relations Commission which shall endeavor (sic) to resolve the issue between the parties by conciliation’.
Part D: ‘Without prejudice to either party work shall continue while the matters of dispute are being dealt with’.
You are required at normal start time, to commence work on Thursday 1st August.
Failure to do so may result in TERMINATION of employment.
You are further advised that any future unlawful stoppage of work may be regarded as grounds for instant dismissal.
(signed) ANDREW CONROY
DIRECTOR”.
Mr O’Leary only became aware of the contents of the letters when management gave him a copy on the morning after the meeting at which they were produced.
About twenty-six employees left the abattoir on 31 July 1996 after the meeting which Mr Conroy addressed. Most of the other employees returned to work and three of the twenty-six subsequently decided to return to work.
On the morning of 1 August 1996, each applicant in these proceedings presented for work at his usual starting time. Mr O’Leary and the Secretary of the union’s South Australian branch, Mr Warren, arrived at the abattoir at 6.30 am. Mr Conroy informed the union officers that the workers who had not returned to work on the previous day, including the applicants, had been terminated for abandoning their employment. At this time Mr Cox had already changed his clothes and was ready to commence work. As each of the other applicants arrived they were denied clean work clothing and were not permitted to start work.
There was in evidence before the Judicial Registrar (and by agreement before me on review) an exhibit which is a letter addressed to one of the applicants, Mr J Davey, dated 31 July 1996. The letter is in the following terms:
“Dear Mr Davey,
At the commencement of production on 31st July, 1996 you where (sic) offered continued employment with Conroys Port Pirie Abattoir, and asked to resume employment, but you refused to do so.
As you refused this offer we find no other alternative but to terminate your employment with Conroys Port Pirie Abattoir as of 31st day of July, 1996.
Regards,
Geoff Evans
ABATTOIR MANAGER
on behalf of the Directors of Conroys Port Pirie Abattoir”.
Mr Evans said under cross-examination on the review that this letter was prepared by him in conjunction with Mr Conroy and his brother, Mr Patrick Conroy (the other director), and that the relevant discussions had occurred on 31 July 1996, the date of the letter. He said that the letter was typed on 31 July 1996 and that twenty-three people, including the applicants, received it. He said that the decision to terminate twenty-three people was taken on 31 July 1996, notwithstanding that Mr Conroy had earlier informed those twenty-three people that, if they did not return to work on 1 August 1996, they would be terminated. The effect of Mr Evans’ evidence under further cross-examination was that the decision to terminate was made after Mr Conroy had addressed the meeting on 31 July 1996, but before 4 pm on that day. Asked what had changed in that time, Mr Evans said:
“What changed is the biggest percentage of workers went back to work and we have a business to run.”
Under cross-examination before the Judicial Registrar Mr Evans said that the decision to terminate was made after the workers had left the abattoir, but that he needed to discuss it further with the directors. He said he met with Mr Conroy after lunch and the decision was then made.
Several of the applicants testified that they received a letter in the form referred to above on 2 August 1996 because they were told that the letters were not ready on 1 August 1996, the day they were terminated.
Mr Conroy’s evidence is inconsistent with that of Mr Evans regarding the timing of the termination decision. In reference to 31 July 1996, he said in his affidavit tendered on the review:
“Later that morning I advised our Adelaide office to prepare termination pay for all those who had abandoned their employment.” (Emphasis supplied)
He confirmed in his oral evidence that the decision was made before lunch on 31 July 1996.
At whatever time on 31 July 1996 the decision to terminate was made, it was made in circumstances where the applicants had been given the unmistakable impression by Mr Conroy that their jobs would not be in jeopardy if they returned to work the following morning. They returned to work in the morning only to find, in most cases via a union official (Mr O’Leary and/or Mr Warren), that their employment had been terminated.
VALID REASON
The actions of the respondent in terminating the employment of each applicant were reprehensible and dishonest. The respondent permitted the applicants to leave the abattoir under the impression, which was at that time the clear stated position of Mr Conroy, that if they returned to work the next day they would not be terminated. Upon realising that most workers had not left the premises after the meeting on 31 July 1996, the respondent changed its mind and decided to punish those who had left. Its behaviour through its officer, Mr Conroy, and its manager, Mr Evans, was deceitful. It is inconceivable that any rational person would be able to form a view on the facts of this case that there was a valid reason for the termination of the employment of the applicants. Certainly, the decision to terminate was not justifiable or defensible on any objective analysis of the circumstances: see Kerr v Jaroma Pty Ltd (1996) 70 IR 469, 473-477; Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, 372-373; Thomas v Lynch (1996) 71 IR 307, 310-312 and Weston v Union Des Assurances De Pavis (Madgwick J, 17 Dec 96, IRCA, unreported).
Consequently, I find that in terminating the employment of each applicant, the respondent contravened s 170DE(1) of the Act.
SECTION 170DC
The applicants were given no opportunity to respond to any allegations raised against them. It was merely put to them that their conduct of the previous day amounted to an abandonment of employment. This contention was wrong as they intended to return to work the next morning at the expiration of their “protest”, a course which they had every reason to believe had the grudging assent of management given the findings which I have made earlier in these reasons. They were summarily terminated. Section 170DC of the Act has also been contravened by the respondent in respect of each applicant. No opportunity was afforded to the applicants to defend themselves against the allegation that they had abandoned their employment.
REMEDY
In what follows in these reasons for judgment I refer to the appropriate remedy for each individual applicant having regard to the remedy sought by him and his individual circumstances.
(a) Dean Lauritsen
Mr Lauritsen does not seek reinstatement. He has work elsewhere as a regular casual labourer. I find that his reinstatement is impracticable. I turn now to consider what compensation, if any, the Court should order the respondent to pay Mr Lauritsen as a result of its unlawful termination of his employment. In assessing the appropriate amount of compensation the Court must consider the length of time it believes that the employment would have continued but for the unlawful act of the respondent: see s 170EE(3) of the Act. When Mr Lauritsen was terminated he was part of a regular slaughtering and labouring team. Some or all of the employees in that team who returned to work on 31 July 1996 are, according to Mr Evans’ evidence, still employed by the respondent. There is no reason to suggest that if the events of 31 July and 1 August 1996 had not occurred, Mr Lauritsen would not have remained in the employ of the respondent for a considerable period of time. In just over a year after 1 August 1996 the number of persons employed on the slaughtering chain has remained fairly constant at about twenty-seven slaughterers and fifty-four labourers.
According to Mr Lauritsen, there was never any criticism of his work and he was a good slaughterman who had been engaged at the abattoir for some seven years.
Every working day from 1 August 1996 to 27 September 1996, he attended at the abattoir to make himself available for work but was not re-engaged. On or about 27 September 1996, Mr Lauritsen received a letter from Mr Evans in the following terms:
“Dear Dean
Re: Alleged Unfair Dismissal Application
I write concerning the above matter. Following the conference that took place in the precincts of the Industrial Court on 24 September last, I again make the offer (in full settlement) of taking you back on the books as an employee of this Company.
Could you let me know your decision as soon as possible.
Yours sincerely,
Geoff Evans
ABATTOIR MANAGER
on behalf of The Directors of Conroys Port Pirie Abattoir”.
Mr Lauristen went to the abattoir shortly thereafter and filled out an application for employment. He did not hear from Mr Evans until 8 November 1996 when he received a telephone message to go to the abattoir to talk to Mr Evans. He did so immediately after being advised by Mr Evans that he would be able to return to “duties”, although not necessarily “slaughterman’s duties”. Mr Evans requested Mr Lauritsen to sign a document entitled “Employment Agreement”. A copy of that document was tendered in evidence before the Judicial Registrar. It provides as follows:
“EMPLOYMENT AGREEMENT
This Agreement is made between CONROYS PORT PIRIE ABATTOIR and ___________________ for the position of ____________________
The conditions of my re-employment are as follows:
1.I will abide by the duties of my position as set out in Part III of the Federal Meat Industry Award 1981 and in line with Company policies, which includes working reasonable overtime.
2.That there will be no industrial disruption taken by me for a period of three (3) months commencing on _______________
3.I acknowledge that I am able to discuss areas of concern in line with work practices at the plant with my immediate supervisor or my Union Delegate.
4.I acknowledge that my re-employment is on the basis that a breach of the above conditions will be considered a final warning and may result in termination of my position.
5.I agree to discontinue the current claim for alleged unlawful termination of my employment.
This Agreement is signed on ________________
_______________________________________________
For the Company Employee
_________________”.
Witness
Mr Lauritsen wanted to take a copy of the document away to obtain legal advice, and to allow his wife to look at, as his literacy skills are not strong. Mr Evans refused Mr Lauritsen permission to remove a copy of the document from the abattoir. Mr Lauritsen, understandably, declined to sign the document. Consequently, I find that no genuine offer of re-employment was made to Mr Lauritsen and that any order for compensation which I make should not be discounted having regard to Mr Evans’ so-called offer of “full settlement” by re-engagement of Mr Lauritsen to an unstated position on terms that he was not able to fully comprehend and which, in any event, were partially intolerable. In that regard, I draw particular attention to clause 2 thereof which seeks to ban “industrial disruption” without making any allowance for genuine concerns for a worker’s personal safety, especially in an industry such as the meat industry.
Mr Lauritsen did not receive unemployment benefits for three months after his termination and was obliged to spend all his savings on living expenses for himself and his family. He actively sought alternate employment from 1 August 1996. Only since 18 March 1997 has he obtained regular casual work with his current employer. He has earned $2127 in that employment from 18 March 1997 to date of his giving evidence; that is, to 22 July 1997. In the circumstances, Mr Lauritsen would be entitled to at least seven months wages by way of compensation. However, the statutory cap provided by s 170EE(3) of the Act is six months remuneration.
The Judicial Registrar awarded Mr Lauritsen twelve weeks compensation. He received $6352.76, $1994.76 of which was paid to the Australian Taxation Office (“ATO”). In the circumstances, I would award twenty-six weeks compensation. A further fourteen weeks compensation is payable to Mr Lauritsen. I will order a gross amount. Whatever taxation liabilities arise will fall where they are due. I do not believe it is appropriate for the Court to act as a tax assessor in the absence of submissions from the parties on the taxation treatment of awards of compensation: see Golja v Kelvin Ernest Lord t/as Kelvin Lord & Co (Madgwick J, 20 June 1996, IRCA, unreported). That role belongs to the ATO.
An additional fourteen weeks pay for thirty-eight hours per week at a rate of $13.9315 amounts to $7411.56. I will order that amount be paid by the respondent to Mr Lauritsen.
(b) Dion Sparks
Mr Dion Sparks testified that his reinstatement is impracticable. He is engaged in other employment which may lead to him securing trade qualifications in the building industry. I agree that his reinstatement is impracticable and now consider the question of compensation regarding his unlawful termination.
Mr Dion Sparks was part of the regular labouring and slaughtering team. At the time of his termination he was one of the longest serving slaughtermen on the chain at the abattoir. As with Mr Lauritsen, there is no reason to believe that had the events of 31 July and 1 August 1996 not occurred Mr Dion Sparks would not have remained in his employment at the abattoir for a considerable period of time. He was a good employee and there was never any criticism of his work. As with Mr Lauritsen, he attended at the abattoir every working day from his termination until 27 September 1996. He was not re-engaged. On or about 27 September 1996, he received a letter in materially identical terms to the one received by Mr Lauritsen and set out above. He contacted Mr Evans in response to that letter. He gave the following evidence about Mr Evans’ discussion with him:
“He told us to come out and get an application form, fill it out and he’ll pick and choose who he wants.”
Mr Dion Sparks filled out an application form for employment but heard nothing in response from Mr Evans or anyone else from the respondent.
Since his termination, Mr Dion Sparks and his family have suffered severe financial hardship. He has yet to receive any income from his new employment at the time of giving evidence before me. In the circumstances, I believe that the appropriate compensation is the statutory cap of twenty-six weeks compensation. The Judicial Registrar ordered that he be paid six weeks compensation at the same rate as applied to Mr Lauritsen. I will order that a further twenty weeks compensation be paid to Mr Dion Sparks. The relevant amount is $10587.94.
(c) Jeffrey Davey
Mr Jeffrey Davey testified that he was employed by a fish wholesaler and was learning a trade as a fish filleter. He said that he did “not want to go back to work at Conroys”. I find his reinstatement to be impracticable. I turn to consider the question of compensation in relation to Mr Jeffrey Davey. He was employed as a labourer in connection with the slaughtering chain. He was a regular casual employee with an expectation of on-going work. He testified that “I was one of the longest serving labourers so I would be the last one to be laid off if there is no work for labourers.” I have no reason to believe that, but for the events of 31 July and 1 August 1996, Mr Jeffrey Davey’s position at the abattoir would not have remained unaltered until this date at least. As he said before the Judicial Registrar, if these events had not occurred he would have expected regular and consistent work at the abattoir.
Since his termination Mr Jeffrey Davey has lived on his savings while actively seeking work. His current employment is part-time and his income would not approximate to his former income derived from work at the abattoir.
In the circumstances, the appropriate amount of compensation is the statutory cap of twenty-six weeks. The Judicial Registrar awarded Mr Jeffrey Davey eight weeks compensation. I will order a further eighteen weeks compensation based on an hourly rate of $11.934 for thirty-eight hours work per week. The relevant sum is $8162.86.
(d) Christopher Sparks
Mr Christopher Sparks does not seek reinstatement. On 7 July 1997 he became engaged as a sub-contractor in the building industry. I find his reinstatement to be impracticable. I turn to consider the question of what compensation, if any, should be payable to Mr Christopher Sparks. For some eight and a half years he had been employed at the abattoir, the last six and a half years as a slaughterman. This would have made him one of the most experienced slaughtermen at the abattoir. I am confident that if the events of 31 July and 1 August 1996 had not occurred, Mr Christopher Sparks would have remained in his employment with the respondent for a considerable period of time. Every day, from 1 August 1996 until 27 September 1996, he carried a car load of former employees who had been terminated on 1 August 1996 to the abattoir in search of further work. He was not re-engaged. Like Mr Dion Sparks he received a letter from Mr Evans, dated 26 September 1996, inviting a settlement. He lodged an application form but heard nothing in response from the respondent. He has yet to receive any income from any work undertaken since his termination.
The Judicial Registrar awarded Mr Christopher Sparks eight weeks compensation. Having regard to the abovementioned factors, the appropriate remedy is the statutory cap of twenty-six weeks compensation. I will order that a further eighteen weeks compensation be paid to him. That amount is $9529.15, being eighteen weeks at thirty-eight hours per week at the rate of $13.9315 per hour.
(e) Christian Wood
Mr Wood did not seek reinstatement. I find his reinstatement to be impracticable. He is currently performing unpaid work as a stonemason which work is likely to lead to full-time employment. Since his termination, he has been earning about $200 per month as a firefighter. In all, he has earned $6000 in the year since his termination. It was Mr Wood’s demotion or transfer that lead to the incidents the subject of these applications. I am not convinced that his employment at the abattoir was secure, having regard to his absences from work without a doctor’s certificate and difficulties his foreman encountered as a result of perceived “attitude problems”. I believe that Mr Wood’s employment would have been unlikely to last beyond four months in all the circumstances but for his termination on 1 August 1996. Accordingly, I will order that he be paid seventeen weeks compensation, but reduce any amount by the $3000 sum which would have been earned in firefighting duties in that time. I will also order compensation at a labourer’s rate rather than at a slaughterman’s rate, given that he had been demoted or transferred to a labouring position by 1 August 1996.
The Judicial Registrar ordered that he receive six weeks compensation at a slaughterman’s rate. That is a sum of $3176.38. I will order seventeen weeks compensation at the labourer’s rate, being $7709.36, and reduce that amount by $6176.38, leaving an extra compensation payment being payable to Mr Christian Wood in the sum of $1532.98.
(f) Scott Sparks
Mr Scott Sparks sought reinstatement, but I do not believe that it is practicable to order his reinstatement. I also believe it would not be appropriate in all the circumstances of the case to order his reinstatement. He testified before me that he would probably find it hard to work at the abattoir and that he had had “a run-in or disagreement with several people out there”. I now consider the question of what compensation, if any, he should receive.
Mr Scott Sparks was employed for about a year as a regular casual labourer prior to his termination. He was a good worker and testified before the Judicial Registrar that if the events of 31 July and 1 August 1996 had not happened, he would have expected to be still working at the abattoir “on a consistent regular basis”. He was not challenged on that evidence.
From 1 August 1996 until 27 September 1996, he attended daily at the abattoir seeking re-employment. He testified that:
“We did that until 27 September 1996. Then the Union told us that there was no point in turning up any more.”
He did not obtain other work until 3 February 1997 when he secured casual work as a butcher at a Coles Supermarket. Prior to then he searched extensively for other employment. In the circumstances, I consider that it is appropriate to order that he be paid twenty-six weeks compensation (the statutory cap). The Judicial Registrar ordered that he receive four weeks compensation. I will order that a further twenty-two weeks compensation be paid to him at the rate of $11.934 per hour for a thirty-eight hour week, making a total sum of $9976.82.
(g) Colin Cox
Mr Colin Cox is forty-seven years old and had fourteen years service at the abattoir as a slaughterman. He was one of the most experienced slaughtermen at the abattoir. His work performance was good. His employment was regular and he expected to continue his work for as long as he was able. Apart from two years employment elsewhere, he has known no work except in the meat industry. Since his termination he has filled out an application form for re-employment. A number of people who filled out such forms are back at work, but not Mr Cox. From 1 August 1996 until the date of the hearing before me he has been in receipt of unemployment benefits. He testified that “I haven’t been able to get a job since the termination and I have applied all over the place.” He produced a long list of employers from whom he had sought employment.
There is no cogent basis for the Court to consider Mr Cox’s reinstatement impracticable. He testified that he gets on well with the other employees at the plant. He was not challenged on that evidence. I will order that he be reinstated to his former position as a slaughterman and that he be paid remuneration lost as a result of his termination. His remuneration lost will cover a period of sixty weeks. That figure should be discounted by twelve weeks for the twelve weeks compensation ordered by the Judicial Registrar. His solicitors are requested to provide an up-dated figure for his unemployment benefits at the date of his reinstatement; that is, 19 September 1997. The relevant order in respect of remuneration lost will provide for the payment of forty-eight weeks remuneration less tax (see John v Gunns Limited (1995) 60 IR 258, 272-273) and less his unemployment benefits. In the absence of agreement about the relevant sum, the parties should approach the Court pursuant to liberty to apply under the Federal Court Rules.
(h) Darrin Davey
Mr Darrin Davey’s situation, apart from his relative youth (30 years of age), is not materially distinguishable from that of Mr Cox. There is no reason to consider his reinstatement impracticable. I will make identical orders in his case save that his period of sixty weeks remuneration lost should only be discounted by eight weeks, having regard to the eight weeks compensation ordered by the Judicial Registrar.
(i) Edward Hunter
Mr Hunter’s situation is not distinguishable from Mr Darrin Davey’s situation. His reinstatement is not impracticable. I will make identical orders in his case, with the following exceptions:
an amount of $740 less tax should be deducted in relation to part-time work performed in early 1997; and
the relevant discount factor is six weeks, having regard to the Judicial Registrar’s order.
It should also be noted that Mr Hunter was asked by Mr Evans to sign the Employment Agreement set out earlier in these reasons. In the absence of any information being given to him about the type of job he would be given if re-employed and in the absence of any other information, he decided not to sign the agreement. I believe that no criticism can be made of him for not signing the document in the circumstances. I do not consider that the evidence shows Mr Evans to have made any firm or genuine offer of re-engagement as a slaughterman. I therefore make no finding adverse to Mr Hunter on this issue when considering the remedy to which I believe he is entitled.
I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Associate:
Dated: 26 August 1997
Counsel for the Applicants: Mr J Weatherill Solicitor for the Applicants: Lieschke & Weatherill Representative for the Respondent: Mr G P Johnston Dates of Hearing: 22 July 1997 and 26 August 1997 Date of Judgment: 26 August 1997
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