Damien Oliver v Cox Couriers Pty Ltd
[1996] IRCA 88
•19 March 1996
DECISION NO: 88/96
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - RESIGNATION - TERMINATION of applicant during notice period - whether termination for VALID REASON of CONDUCT OR PERFORMANCE - whether termination HARSH UNJUST OR UNREASONABLE - COMPENSATION
Industrial Relations Act 1988, ss 170EA, 170DE(1), 170DE(2), 170EE(5)
DAMIEN OLIVER v COX COURIERS PTY LTD
VI 5600 of 1995
Before: PARKINSON JR
Place: MELBOURNE
Date: 19 MARCH 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5600 of 1995
B E T W E E N:
Damien OLIVER
Applicant
A N D
COX COURIERS PTY LTD
Respondent
MINUTES OF ORDER
19 March 1996 PARKINSON JR
THE COURT ORDERS THAT:
The respondent pay to the applicant compensation in the sum of $1468.40.
That the respondent pay to the applicant damages in the sum of $367.10.
That the time for payment is twenty one days from the date of order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5600 of 1995
B E T W E E N:
Damien OLIVER
Applicant
A N D
COX COURIERS PTY LTD
Respondent
REASONS FOR DECISION
19 March 1996 PARKINSON JR
This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent as a bicycle courier. The applicant gained the employment after responding to an advertisement placed with the Commonwealth Employment Service. He was employed on 19 July 1995 and his employment was the subject of a JobStart Labour Market Program. His employment was terminated on 20 October 1995, some 13 weeks after he commenced employment.
The respondent operates a business aimed at attracting custom from business in the corporate world. It operates its courier service in the central business district in Melbourne, and as a consequence requires that all employees maintain a high standard of dress and personal appearance.
The respondent’s evidence was that this included a policy within the respondent that all employees must be either clean shaven or have a fully grown beard or moustache. The latter was to be grown during holidays, not during work time. The evidence of the applicant was that he accepted that there was a policy as to facial hair, and I accept that this was so. Ms Mitchell’s evidence was that she had reminded all employees of these requirements when she had commenced employment. She did not however discuss with the applicant or any other employee the consequences of non-compliance with this requirement.
It should be noted at this point that nowhere in any written document tendered in these proceedings is there such a requirement. The policies referred to required a neat and tidy appearance. I do not accept that any written documents setting out such policy were ever presented to or shown to the applicant, and I do not accept that he ever saw such a document. The evidence of Ms Mitchell contradicts Mr Cox’s evidence that any such policy was ever posted on the windows of the office during the period of the applicant’s employment. It is clear from all of the material before me and on the evidence, that the applicant had never been informed that facial hair of the type he had grown was liable to result in the termination of his employment.
The applicant was by all accounts a dedicated employee. It was a term of the employment that the employees provide their own bicycles, and the applicant did so. Some time in early September his bicycle was stolen from the premises of the respondent. The applicant was aware that his employment would terminate if he did not provide his own bicycle.
The applicant, being unable to afford to buy a new bicycle, asked the respondent to advance his wages to enable the purchase. In exchange for advancing the money, the respondent requested that the applicant convert to a monthly pay system. This was agreed to on a trial basis by the applicant, although, as he said in evidence, reluctantly. The applicant used the advance of wages to purchase an appropriate bicycle. This purchase was in the sum of $540.00 and the applicant was thus left with little money to tide him over for the rest of the pay period.
As a result of an incident involving another employee and his wages and conditions of employment, and in particular the requirement by the respondent of four weeks notice of resignation, the applicant drafted an employment agreement which he asked Mr Cox, the managing director of the respondent, to agree to and sign. That draft agreement, which the respondent was unable to locate for the proceedings, contained various terms and conditions of employment, including notice periods applicable to both parties and hours of work. The agreement also provided for the applicant to receive a small proportion of his wages on a weekly basis, instead of four weekly as had been recently adopted. The applicant earned $ 367.10 gross per week, the net figure being $307.30, such amount being payable on a monthly basis. The applicant asked that he be paid $100.00 per week to enable him to meet commitments, and that the balance of his wages be paid four weekly. The applicant anticipated that the task of managing on monthly wages on such a small income would be onerous, and he needed a small amount weekly to be able to adequately manage his finances.
This agreement was presented to Mr Cox on 17 October 1995. The applicant’s evidence was that he received no response to the agreement and queried with Mr Cox on a number of occasions over the following days as to what the position was. The applicant’s evidence was that on 19 October 1995 Mr Cox informed him that the agreement was rubbish and that he would not be agreeing to its contents, but he would get back to the applicant. Mr Cox’s evidence was that he did not describe the agreement as rubbish, although he expressed concern about various of its inclusions. The applicant was able to remember the contents of the agreement. Mr Cox was at first unable to remember the contents, but later in his evidence was able to provide detailed information as to the contents of specific clauses of the document. Earlier in his evidence he had said he had not had an opportunity to consider any of the detail of the clauses in the draft agreement. Whilst it is understandable that neither witness could recall the exact terms of the conversations between them, the applicant was open and forthright in his evidence in relation to his recollection. In contrast I found Mr Cox to be unforthcoming in his answers. There were inconsistencies in the evidence of Mr Cox in relation to the agreement and I prefer the evidence of the applicant in this regard.
On 19 October the applicant became upset at having had no response as to the document and informed Mr Cox that if the matter was not able to be resolved he would have to resign. In his evidence the applicant volunteered that he did request that his employment be terminated. There was no progress of the matter. Mr Cox failed to enter into any discussions at all with the applicant as to the terms and conditions of his employment. The applicant advised the respondent that he was resigning and giving the respondent four weeks notice. This resignation and notice was accepted by the respondent. The period of notice ran from 19 October 1995 and would have expired on 16 November 1995. At the conclusion of the meeting regarding the applicant’s resignation, Mr Cox advised the applicant that he was to remove the facial hair he had grown. He also advised Ms Mitchell the following morning of this and gave instructions in relation to the applicant’s continued employment. It was ostensibly the issue of the facial hair which led to the termination of employment the day after the applicant had given notice of resignation. It should be noted that whilst the facial hair was described for the purpose of the proceedings as a “goatee”, this was not understood by the parties to describe a full or fully flowing beard, but rather a small amount of facial hair underneath the applicants bottom lip.
There were inconsistencies between the evidence of Ms Mitchell and that of Mr Cox. Mr Cox’s evidence was that the decision to terminate the employment of the applicant was a matter for Ms Mitchell and that his role was to provide her with support and to act as a sounding board. Ms Mitchell’s evidence was that she was instructed to terminate the employment if the applicant refused to shave his "goatee" beard immediately. I prefer the evidence of Ms Mitchell to that of Mr Cox.
The interview between the applicant and Ms Mitchell took place, and her evidence in the proceedings was that she perceived the matter as trivial and the termination of the employment for such a reason as being "over the top". Her evidence was however that she had no choice but to follow instructions from Mr Cox.
The applicant returned to the office of the respondent after completing a job at approximately 5pm on the evening of 20 October 1995. He was told by Ms Mitchell that she had been told to instruct him to shave his "goatee" beard immediately or his employment would be terminated. The applicant indicated that he had had the facial hair for approximately two weeks and that the only time anyone had said anything to him was when he tendered his resignation. He said he really did not want to remove it, and after some prevarication asked whether he could just keep it for the weekend and that he would return to work on Monday without it. Ms Mitchell at first refused this request and advised him that his employment was terminated. Then, after the termination it became apparent to her that a number of jobs were required to be completed. She then in effect indicated to the applicant that she would revoke the termination and allow him to keep the goatee for the weekend if he would do the urgent jobs. The applicant then indicated this revocation was not acceptable and that he would only accept reemployment on terms that included that he could keep the beard. Mr Cox, upon being contacted, refused this concession and the applicant was not reemployed.
The sequence of events in this matter is critical. Firstly, it is clear that the applicant resigned his employment on 19 October 1995. The employment would therefore on any view of the matter have only continued for a further four weeks beyond the actual date of termination by the respondent.
The second aspect relates to the timing of the termination of employment. The employment of the applicant had been terminated prior to the concession as to the applicant temporarily retaining the goatee. After the termination of his employment he was entitled not to accept the terms of reemployment set by the respondent, just as the respondent was entitled not to reemploy him on the terms proposed by him. Whilst it might be said that the applicant could be criticised for failing to accept the concession made by Ms Mitchell to enable the additional work to be done that evening, the circumstances were such that I can accept the applicant was beyond any compromise by the time the offer of reemployment on the original terms was offered.
For that reason my principal attention in these proceedings is focused upon the circumstances and conduct of the parties leading up to the actual termination of employment as effected by Ms Mitchell, prior to the reconsideration of the position.
I am not satisfied that in the circumstances of the employment, having regard to the dealings between the parties, that the termination of employment was for valid reason of misconduct. The applicant had given notice of resignation. Until that time, despite being in daily contact with the applicant, neither Ms Mitchell nor Mr Cox had commented on or criticised the applicant’s goatee. There is no evidence to suggest that the goatee was not fully grown. There is also no evidence in these proceedings to suggest that the applicant did not look neat and well presented, and Ms Mitchell who was, on the evidence of Mr Cox, the applicant’s supervisor and entirely responsible for such matters, had not formed that opinion of his personal presentation. Her express views to the applicant at the time and in these proceedings was that the whole matter was ridiculous and that terminating the employment for that reason was unreasonable. Ms Mitchell is a most sensible and reasonable person and I agree with her conclusion.
I am not satisfied that the respondent terminated the employment of the applicant for valid reason of misconduct. I am not satisfied that on the evidence the applicant did not maintain a neat and tidy appearance during the course of his employment. I am further not satisfied that the goatee was not fully grown or not in compliance with the respondent's policy at the time of the termination of employment.
Notwithstanding my findings as to S170DE(1), I feel compelled to record my findings in relation to the operation of S170DE(2) on the question of harsh, unjust and unreasonable. The applicant was a good, hard working and dedicated employee. The applicant supplied his own bicycle, he took steps to replace a stolen bicycle weeks before the termination of the employment and was, as a consequence, placed in a dire financial situation. He is a young man who, it is apparent to the court, has made every effort to behave reasonably in the course of the employment and was committed to the employment, maintaining this demeanour even after he had tendered his resignation as a result of the refusal of the respondent to negotiate an employment agreement. The refusal initially to allow him to retain the goatee for the weekend, coming as it did at 5.00pm on the Friday evening before finishing work for the weekend, combined with the imposition of the penalty of summary dismissal, was harsh. The penalty was unreasonable having regard to the all of the circumstances and in particular the employment record of the applicant.
Further, it should be noted that the termination of the applicant’s employment was summary. He was summarily dismissed without notice. I agree with the submissions of counsel for the applicant that misconduct which would warrant dismissal of this type must be of a serious nature, fundamental to the relationship between the parties and wilful. I do not accept in the circumstances that this was the case. For that reason alone, leaving aside the notice obligations arising under S170DB of the Act, the termination of the employment was harsh, unjust and unreasonable in the sense provided for by s170DE(2).
I find that the applicant’s employment was terminated without valid reason and that the termination of employment was harsh, unjust and unreasonable. I turn now to consider the question of remedy.
The provisions of s170EE require that the court have regard to all of the circumstances in determining whether an order for reinstatement is impracticable and, in determining whether, in the event of that being so, compensation ought lie.
I turn first to consider the question of the operation of S170DB of the Act. The applicant in my view pursuant to the Act was entitled to a minimum of one weeks notice of termination of employment. The respondent has failed in this regard to comply with the requirements of the Act. My observations in relation to summary termination of employment apply equally in respect of the application of S170EE(5). In this circumstance I am not satisfied there was any basis upon which it could be said that it would have been unreasonable for the respondent to continue the employment in the notice period. This is particularly so because of the express indication of Ms Mitchell after the termination was effected that she was prepared to do so.
The applicant is entitled to the equivalent of one weeks pay in damages pursuant to S170EE(5).
I am satisfied that an order for reinstatement of the applicant would be impracticable having regard to the uncertainty as to the terms of the employment and the apparent reluctance of the respondent to negotiate any formal agreement in that regard. The applicant has also obtained alternative employment in the interim on a wage which is in excess of that paid to him by the respondent. However, this employment was not obtained until 2 weeks prior to this hearing.
The applicant’s counsel sought an order for an amount of six months pay in compensation to the applicant. I am unable to agree that this is the appropriate amount of compensation to be ordered. The evidence is that the applicant had resigned his employment, and that such resignation was to take effect in four weeks. There was no indication in the proceedings that either party had at any stage prior to the termination changed their positions in such a way that there was any possibility that the resignation would have been revoked. I am therefore bound to find that the likely length of the employment beyond the date of termination would have been to the date of the expiration of the notice period.
The applicant is entitled to compensation in an amount equivalent to the wages which he would have been earned in this period. This is in addition to the damages pursuant to S170EE(5).
The orders of the Court will be:
That the respondent pay to the applicant compensation in the sum of $1468.40.
That the respondent pay to the applicant damages in the sum of $367.10.
That the time for payment is twenty one days from the date of order.
I certify that this and the preceding nine (9) pages
are a true copy of the resons for decision of
Judicial Registrar Parkinson.
Associate:
Dated: 19 March 1996
APPEARANCES
Solicitors for the applicant: Ryan Carlisle Thomas
Counsel appearing for the applicant: Ms L Fleming
Solicitors for the respondent: Thompson & Thompson
Counsel appearing for the respondent: Mr P Burchardt
Date of hearing: 13 March 1996
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