Darren Shane Carter v Boral Contracting Pty Ltd
[1994] IRCA 111
•9 Nov 1994
C A T C H W O R D S
INDUSTRIAL LAW - termination of employment - contravention of Division 3 of Part VI A of the Industrial Relations Act 1988 - procedureal and substantive fairness - fitness to return to work affects quantum of compensation.
INDUSTRIAL RELATIONS ACT 1988, ss 170DB, 170DC, 170DE, 170EA
Nicolson v. Heaven & Earth Gallery Pty Limited (20/9/94, unreported, Wilcox CJ)
DARREN SHANE CARTER v. BORAL CONTRACTING PTY LIMITED WI 288 OF 1994
Before: Linkenbagh JR
Place: Perth
Date: 9 November 1994
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 288 of 1994
DARREN SHANE CARTER
- Applicant
and
BORAL CONTRACTING PTY LIMITED
- Respondent
MINUTES OF ORDER
BEFORE: JUDICIAL REGISTRAR LINKENBAGH
date: 9 NOVEMBER 1994
PLACE: PERTH
THE COURT ORDERS RHAT:
That the time for filing of the Applicant's application be extended to 8 August 1994.
That the termination of the employer's employment of the employee contravened Division 3 of Part VI A of the Industrial Relations Act 1988.
That the employer pay to the employee compensation pursuant to the provisions of Section 170EE(2) of the said Act in the sum of Four hundred dollars ($400.00).
That the employer pay to the employee the sum of Four hundred and thirty nine dollars and forty cents ($439.40) as payment in lieu of notice pursuant to the provisions of Section 170DB(4) and (5) of the Act.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 288 of 1994
DARREN SHANE CARTER
- Applicant
and
BORAL CONTRACTING PTY LIMITED
- Respondent
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988, which was filed on 8 August 1994, in respect of the termination of the Applicant's employment by the Respondent on 15 July 1994. At the commencement of the hearing a formal Order was made extending the time for filing of the application, pursuant to Section 170EA(3)(b) of the Act.
There was some dispute between the evidence of the Applicant and that of the Respondent's witness, Mr Paul Berkhout, as to the facts. Both witnesses impressed the Court as trying to recollect the events and conversations to the best of their ability, and the Court finds the following facts without making any adverse finding as to the credit of either witness:
The Respondent is a mining contractor and since 4 February 1994 has operated an open-cut mining operation at Yilgarn Star Mine Site.
The mine is located about 20 km south of Marvel Loch, a township of about 300 people, which is 35 km from Southern Cross, which is a more substantial town about 400 km east of Perth, on the main road to Kalgoorlie.
The Applicant has worked at the mine since 17 February 1994, as a dump truck driver. He generally worked alternating fortnights of an 11 hour per day shift, with two days off each week. His weekly net pay alternated between $950.00 and $650.00, which amounts included $200.00 per week for accommodation and living expenses.
The Applicant's work performance record was not in issue.
The Applicant had a few days absent from work, and may have been spoken to about his being absent without explanation once in March, April or May.
There is a very high turnover of dump truck drivers at mine sites.
The Applicant lived in a caravan in Marvel Loch and travelled to the mine in a Company bus, with the others on his shift, from Marvel Loch. On arrival the men are counted and an enquiry is usually made amongst the men by the supervisor regarding any absentees.
There are two office staff and two telephone lines at the mine.
From 20 June 1994 the Applicant could not attend work for one week because of the recurrence of an old injury to his back. He was paid sick leave for four of the days he was off, then had a week off on recreation leave, and returned to work for the week commencing 4 July 1994. His back problem deteriorated, and he did not attend work from Monday, 11 July 1994.
10.The Applicant conceded that because of his back problem, he has not been able to work since 11 July 1994. He did do a couple of days work in July, which ceased because he fell over and broke a rib. He has not been able to afford chiropractic and massage treatment for his back, which may assist his return to work, but in any event he could not work as a dump truck driver. He is an alcoholic and cannot do manual work because any small injuries such as cuts or scrapes to his hands do not heal readily.
11.The Applicant is aged 34 years and would like to work if he were able to do so.
12.The Applicant sent a message with the bus driver at the commencement of his night shift on Monday, 11 July 1994, and on Wednesday, 13 July 1994. He attempted to telephone the mine on Monday, 11 July 1994, and the phone was engaged. On the Wednesday night, he called at Mr Berkhout's house and there was no response to his knock. On Thursday, 14 July 1994, he went to the Doctor as his back was no better, and he delivered a Certificate to the office girl from the mine, when he met her at the local shop that afternoon. The certificate covered the period 11 July to 17 July 1994.
13.Mr Berkhout did not receive any of the Applicant's communications until the Medical Certificate came to his notice on Friday, 15 July 1994. He was told by another employee that the Applicant had been seen in the Hotel at Marvel Loch on the Tuesday evening.
14.The Respondent has a practice that employees should notify foreseeable absences prior to the commencement of the shift, and that practice was known to the Applicant.
15.The Respondent made a decision to dismiss the Applicant on Wednesday, 13 July 1994.
16.The Applicant of his own initiative, went to see Mr Berkhout at the mine at 1pm on Friday, 15 July 1994. There was a short conversation, the terms of which are disputed, during which Mr Berkhout informed the Applicant that he was dismissed.
The Court finds that the Respondent fell short of its obligations, both as to procedural, and substantive, fairness. Section 170DC of the Act carries into the Act the Common Law principles of natural justice, and the requirements of the Section were explained by the Chief Justice of this Court in the recent decision of Nicolson v. Heaven & Earth Gallery Pty Ltd (20 September 1994, unreported). The Court confirmed that "a person should not exercise legal power over another, to that prson's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case". What is necessary to satisfy that obligation in any particular employment situation will vary.
The Respondent was aware of recent health problems of the Applicant. It is difficult to accept that, given the routine at the mine and the Applicant's history, the Respondent could be said not to have been aware that he was ill. In this kind of community, it would not be unreasonable to expect that some inquiry could be initiated by the employer if it were in any doubt.
In any event, Mr Berkhout made the decision to dismiss the Applicant on Wednesday, 13 July 1994. At that time he had no knowledge of the Applicant's circumstances and had not sought to gain any knowledge. The receipt of the Medical Certificate and the visit of the Applicant to Mr Berkhout at the mine on 15 July 1994 made no difference, and this Court finds that even allowing for the kind of workplace this was, the employer failed to discharge the duty imposed on it by Section 170DC.
On the issue of substantive fairness, under Section 170DE, the Court finds that as at the date of termination, 15 July 1994, the Applicant was covered by a Doctor's Certificate up to 17 July 1994. In retrospect, it can be seen that the Applicant would have continued to be unfit for work indefinitely, and as his sick leave entitlements were exhausted, it would have been inevitable that his employment as a dump truck driver came to an end. That wasnot, however, known at 15 July 1994, and the employer therefore acted prematurely in dismissing the Applicant.
The reason given for the termination was failure to notify of the absences. The Court is not satisfied in all the circumstances that the Applicant did ignore his obligations, and given the nature of this particular work place, had Mr Berkhout initiated some inquiry as to the Applicant's whereabouts at the time, the matter may not have come this far.
The Court therefore finds the Respondent to be in breach of Sections 170DC and 170DE. Reinstatement is not practicable and the quantum of compensation must be determined. The relevant considerations are that there is a high turnover of dump truck drivers in the industry, and that the Applicant's health has prevented his being fit or able to work since 15 July 1994. The latter is of more weight, and applying the principles set out by Wilcox CJ in the decision referred to above, and looking at what would have been likely to occur if there had not been a breach of Section 170DC, it follows that only nominal compensation is appropriate.
The Respondent conceded during the hearing that it had failed to comply with the provisions of Section 170DB as to payment in lieu of notice, and there will be an order to remedy that failure.
The orders that I make will be:
That the time for filing of the Applicant's application be extended to 8 August 1994.
That the termination of the employer's employment of the employee contravened Division 3 of Part VI A of the Industrial Relations Act 1988.
That the employer pay to the employee compensation pursuant to the provisions of Section 170EE(2) of the said Act in the sum of Four hundred dollars ($400.00).
That the employer pay to the employee the sum of Four hundred and thirty nine dollars and forty cents ($439.40) as payment in lieu of notice pursuant to the provisions of Section 170DB(4) of the Act.
I certify that this and the 6 preceding pages are a true copy of my reasons for judgment.
Linkenbagh, J.R.
Date: 17 November 1994
The Applicant appeared in person, unrepresented.
Representative of the Respondent: Mr R H Gifford
Australian Mines and Metals Association (Inc.)
Date of hearing: 9 November 1994
Date of judgment: 17 November 1994
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