Davey v Cray Holdings Pty Ltd
[1996] IRCA 127
•22 March 1996
DECISION NO: 127/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - deckhand - whether employee or share fisherman - whether termination at the initiative of the employer - whether VALID REASON - COMPENSATION - whether employee under obligation to mitigate loss
INDUSTRIAL RELATIONS ACT 1988 Ss 7, 170CB, 170DB, 170DB(4), 170DE(1), 170DE(2), 170EA, 170EDA(1), 170EE(1), 170EE(2), 170EE(3), 170EE(5)
MINIMUM CONDITIONS OF EMPLOYMENT ACT (WESTERN AUSTRALIA) Ss 3, 23(1)
MINIMUM CONDITIONS OF EMPLOYMENT REGULATIONS 1993 Sch 1
TERMINATION OF EMPLOYMENT CONVENTION, 1982
TAXATION RULING NO. IT 2137
INDUSTRIAL RELATIONS ACT 1979 (WA) S 7
Stevens v Brodribb Sawmilling Company Pty Ltd (1985) 160 CLR 16
Re Porter; Re TWU (1989) 34 IR 179
Fitt & HSUA v Department of Health and Community Services, unreported, IRCA No. 613/95, Murphy JR, 17 November 1995
Purvis v Chiefton Management Pty Ltd, unreported, IRCA No. 527/95, Marshall J, 29 September 1995
Garth v Innerspace Wardrobes, unreported, IRCA No. 495/95, Murphy JR, 22 September 1995
Mohazab v Dick Smith Electronics Pty Ltd, unreported, IRCA No. 625/95, Lee, Moore & Marshal JJ, 28 November 1995
Grout v Gunnedah Shire Council (1994) 125 ALR 355
Tranter v Council of the Shire of Wentworth, unreported, IRCA No. 573/95, Marshall J, 24 October 1995
Mullany v Active Concrete, unreported, IRCA No. 262/95, Wilcox CJ, 3 May 1995
Ferry v Minister for Health, unreported, IRCA No. 408/95, 25 August 1995
Soltwisch v Didco Pty Ltd, unreported, IRCA No. 319/95, Millane JR, 19 July 1995
Cox v SA Meat Corporation, unreported, IRCA No. 100/95, Farrell JR, 8 March 1995
Marke v G & J O'Connor Pty Ltd, unreported, IRCA No. 11/95, Staindl JR, 18 January 1995
Glimsholt v Australian Unity Friendly Society t/as Christian Unity, IRCA No. 124/94, Ryan JR, 9 December 1994
Cox v SA Meat Corporation (1995) 60 IR 293
Petera Pty Ltd v Eaj Pty Ltd (1985) 7 FCR 375
ANDREW GEORGE DAVEY -v- CRAY HOLDINGS PTY LTD - WI 95/2256
BEFORE: RITTER JR
PLACE: PERTH
DATE: 22 MARCH 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/2256
BETWEEN: ANDREW GEORGE DAVEY
- Applicant
AND: CRAY HOLDINGS PTY LTD
- Respondent
MINUTE OF ORDERS
BEFORE: RITTER JR
PLACE: PERTH
DATE: 22 MARCH 1996
THE COURT ORDERS, DECLARES AND DIRECTS THAT:
The respondent terminated the employment of the applicant in contravention of Sections 170DB and 170DE of the Industrial Relations Act 1988.
The respondent pay to the applicant $972.09 in damages pursuant to Section 170EE(5) of the Industrial Relations Act 1988.
The respondent pay to the applicant $5,174.40 in compensation pursuant to Section 170EE(2) of the Industrial Relations Act 1988.
The amounts referred to in orders 2 and 3 above be paid to the applicant within 21 days.
The applicant's claims for damages for breach of the contract of employment and contravention of the Minimum Conditions of Employment Act (WA) 1993 be dismissed.
The Deputy District Registrar of the Western Australia district registry of the Industrial Relations Court of Australia cause to be forwarded to the Attorney General of the Commonwealth of Australia and the Attorney General of Western Australia a copy of the reasons for judgment and thereafter make available, as may be required, the full transcript of proceedings and the exhibits for inspection by any officers authorised by the Attorneys General or by the Commissioner of Taxation.
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 )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/2256
BETWEEN: ANDREW GEORGE DAVEY
- Applicant
AND: CRAY HOLDINGS PTY LTD
- Respondent
BEFORE: RITTER JR
PLACE: PERTH
DATE: 22 MARCH 1996
REASONS FOR JUDGMENT
This is primarily an application under Section 170EA of the Industrial Relations Act 1988 ("the Act"). The applicant alleged that he was the employee of the respondent and that the respondent terminated his employment in contravention of Part VIA of Division 3 of the Act. The respondent denied this. The respondent asserted that the applicant was not the employee of the respondent and that therefore the Court had no jurisdiction to order any remedy. Alternatively, the respondent argued that if the applicant was the employee of the respondent, the respondent did not terminate the employment of the applicant. The respondent argued that the applicant had failed to attend for work and had in effect resigned.
The applicant did not seek reinstatement but compensation pursuant to Section 170EE(2) of the Act. The respondent agreed that reinstatement was impracticable and accordingly if the applicant was the employee of the respondent and the employment was terminated in contravention of the Act then consideration should be given to awarding compensation.
The applicant also claimed any payments to which he was entitled pursuant to the Minimum Conditions of Employment Act 1993 (Western Australia). In particular he referred to unpaid annual leave. The respondent asserted that the applicant's engagement with the respondent was not covered by this Act.
The applicant also claimed that he was not paid the amount which he ought to have been paid pursuant to his contract with the respondent. Again the respondent denied this and asserted that the applicant had been fully paid in accordance with the contract.
BACKGROUND
The applicant appeared in person. He gave evidence in support of his case and called one witness, Mr Ben Elphick. By consent, an affidavit sworn by Ms Kathrine Farquhar-Reid was also tendered by the applicant as an exhibit. The respondent called Mr Carlo Gullotti and Mrs Deborah Gullotti who are the married directors of the respondent and also Mr Murray Banks.
The respondent conducts a shark fishing business. At the relevant time this was done in one boat off the Safety Bay and Mandurah areas. Mr Gullotti was the skipper on the fishing boat. The applicant was engaged as a deck hand on the fishing boat. During the period whilst the applicant was engaged by the respondent, the applicant was the only permanent deck hand on the boat. However, at times, Mr Elphick was also engaged as a deck hand on the boat. During the period whilst the applicant was engaged by the respondent, Mr Elphick worked part time with the respondent.
Mr Banks is an officer of CALM and a keen amateur fisherman who works in the Safety Bay area. He gave evidence of his observations of the times that the respondent's fishing boat left and returned to shore. This was a peripheral issue in the trial and it has not been necessary to determine that matter to decide this case.
The affidavit of Ms Farquahar-Reid also concerned a peripheral matter. She is a neighbour of Mr and Mrs Gullotti and deposed to seeing the applicant "working with .... [Mr Gullotti] ... almost every day around the back yard and in the sheds". This was not really in issue. I do not need to make any further reference to this evidence or that of Mr Banks.
The evidence was that the applicant commenced working with the respondent in October or November 1994. The records of the respondent indicate that the applicant was first paid on 3 November 1994 in relation to fish that had been caught. I think it safe to take this date as the date of commencement of employment. The applicant did not really contest that this was the date of commencement of employment. An employment declaration form that was filed with the Australian Taxation Office indicated the employment commencement date of 7 November 1994. This document was signed by the applicant. However, he indicated it was signed some time after his commencement with the respondent and therefore he could not be sure that the date indicated on the document was the correct commencement date. An employment separation certificate signed for the Department of Social Security by the respondent at the end of the applicant's "employment" listed the commencement date as 1 November 1995. Apart from the obvious mistake in the year, this is consistent with the financial records referred to above.
The applicant referred in his evidence to the fact that, prior to November 1994, he travelled with Mr Gullotti to Leeman to bring the respondent's fishing boat down the coast to Safety Bay. The applicant raised in his evidence the issue as to whether he had been employed by the respondent during this time period. I am not satisfied that he was. I think the applicant travelling to Leeman with Mr Gullotti and some friends of Mr Gullotti's to bring the fishing boat from Leeman to Safety Bay was something which the applicant did prior to the commencement of his work with the respondent. I am satisfied that there was no requirement for the respondent to remunerate the applicant for his participation in this trip.
The applicant's evidence was that the issue of employment with the respondent was raised not long after the applicant met Mr Gullotti. He met Mr Gullotti when he saw Mr and Mrs Gullotti moving into their house. This was in the same street as that where the applicant lived. The applicant assisted Mr and Mrs Gullotti in moving into their house. The issue was raised as to whether the applicant would like to work with the respondent as a deck hand. The applicant said he was told by Mr Gullotti that fishing involved going out every day when weather permitted. Mr Gullotti said that the remuneration would be 15% of the catch. The applicant was told this would work out to be about $400 per week. The applicant said that he thought that this was a good job and agreed to be employed with the respondent. The applicant said that no other terms and conditions were discussed.
Mr Gullotti in his evidence said that the applicant showed an interest in the respondent's shark fishing business from the time when he first met him. There were general discussions about how the business operated. Mr Gullotti had indicated to him that when the boat was moved to Safety Bay he may require a deck hand. The applicant said that he was interested. Mr Gullotti said that they could further discuss the issue when the boat was moved to Safety Bay.
Prior to the boat being moved from Leeman, there was a further discussion. The applicant indicated that he wanted the job of the deck hand although he mentioned that he was not sure if he could do it because he had not done it before. Mr Gullotti said that he would "try out" the applicant. Mr Gullotti said that he told the applicant "You will be on 15%". Mr Gullotti said that he normally paid deck hands 10% of the catch but because the applicant lived "next door" he would pay him 15% of the catch. Mr Gullotti said that he told the applicant that he would be on a 15% share fishing agreement. The applicant denied that Mr Gullotti used the words "share fishing agreement".
Mr Gullotti said that he employed previous deckhands on a share fishing agreement. However, he wasn't precise in what he meant by a share fishing agreement. He said that a share fishing agreement is where the deckhand works for himself "sort of thing" and the "other way he works for a boss". He said that he had learnt the difference at meetings of WAFIC, a fishing industry body.
As stated earlier, the respondent asserted that the applicant was not an employee.
The belief of the applicant and Mr Gullotti as to whether the applicant was an employee or not is not determinative of this issue. The Court must consider and weigh each relevant indicia to decide the true nature of the relationship; Stevens v Brodribb Sawmilling Company Pty Ltd (1985) 160 CLR 16, per Mason J at page 24 and Wilson and Dawson JJ at page 36-37.
Further, the label that the parties may choose to put on the relationship is not determinative of the issue: "The parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck". (Re Porter; Re TWU (1989) 34 IR 179 per Gray J, page 184). I am satisfied that the applicant believed that he was an employee and that Mr Gullotti did not think that he was. Whilst Mr Gullotti may well have indicated to the applicant that he was to be paid 15% of the catch under a share fishing arrangement, the applicant did not know what a share fishing arrangement was. Mr Gullotti did not explain this to him. Mr Gullotti said that as the applicant did not query what was said to him, he assumed that the applicant understood what a share fishing arrangement was. He asserted this even though he was aware that the applicant had not previously worked on a fishing boat. It is quite possible that even if Mr Gullotti did indicate that the applicant was to be paid 15% on a share fishing arrangement, that the applicant took the description "share fishing arrangement" to simply describe the arrangement whereby he was going to be paid 15% of the amount made by the respondent from the sales of fish caught.
The applicant provided me with extracts from Taxation Ruling No. IT 2137, which discusses the difference between an employee and a share fishing arrangement. Paragraphs that appear of some relevance are as follows:
"9. Although fishing operations may constitute a business of primary production it does not follow that all persons engaged in fishing operations may be said to be carrying on a business. There will undoubtedly be some persons who are carrying on a business of fishing operations. They will be the persons who have the responsibility, the control, the liability for all the expenses of the venture and who ultimately receive the net profits or bear any losses.
10. Others may operate under the direction and control of the owner and/or operator of a fishing vessel. Their contracts may well be contracts which are principally for the labour of the person and their duties and status may be, in fact, characteristic of a relationship of master and servant. The fact that they may be remunerated by a share of the catch does not, of itself, affect the relationship of master and servant.
11. It is in the area of those who describe themselves as "share fishermen" that some difficulty may arise in determining the precise nature of the relationship between the parties. A share fisherman, properly so called, carries on with another or others a business of fishing operations. A true share fishing arrangement is a joint venture business and is usually evidenced by a written contract which specifies the rights and obligations of the parties. It is usual for a contract to provide that the parties shall share the gross proceeds of the sale of fish and that they each bear a proportion of the operating expenses of the vessel whether or not the gross proceeds exceed operating expenses. Where an agreement of this nature is entered into and the parties observe the terms of the agreement, they are each in the business of fishing operations. It will be necessary to determine in each case whether the arrangements constitute a true share-fishing situation or whether, in fact, they constitute an employer/employee relationship...
16. As is the case with boat skippers, crew-members of a vessel engaged in fishing operations may fall into one of two categories. The first category includes deck-hands, cooks, mechanics, engineers, spotters, divers etc who work for, and under the direction of, the owner/skipper of the vessel. Remuneration received by persons in this category may take the form of a set weekly wage, a guaranteed wage plus a share of the catch, a share of the catch only or some other form of periodic remuneration. Persons in this category are considered to be employees under the income tax law and payments to such persons are "salary or wages" for the purposes of sub-section 221A(1) of the Act. Examples of the calculation of tax instalment deductions from payments to persons in this category are provided in the Attachment to this Ruling.
As the Taxation Ruling indicates, the fact that a deck hand is remunerated by a share of the catch does not necessarily mean that they are not an employee.
The High Court indicated in Stevens v Brodribb Sawmilling Company Pty Ltd that one prominent factor in determining the nature of the relationship is the degree of control which can be exercised over the putative employee. In this case, Mr Gullotti, on behalf of the respondent, had much actual or potential control over the applicant. Mr Gullotti determined the days on which work would be done. He also determined the hours of work. It was Mr Gullotti who directed the applicant to perform the various duties of a deck hand on board the boat and on land.
As will be set out later in these reasons, Mr Gullotti asserted the entitlement to tell the applicant when he would be tying nets, on days when there was no fishing. This assertion is consistent with a relationship of employer and employee. So too is Mr Gullotti's evidence that he would "try out" the applicant as a deck hand as referred to above.
Additionally, as will also be further detailed below, Mr Gullotti asserted the entitlement to terminate the relationship with the applicant if he would not tie nets on a particular day. Again, this assertion is far more consistent with a relationship of employer/employee than that of a joint fishing operation.
There was no real evidence of a share fishing agreement. There was nothing in writing. There was no evidence that the basis of distribution of profits and losses was agreed other than that the applicant would be paid 15% of the gross proceeds of sale of the catch.
After the applicant had ceased with the respondent, Mr Gullotti on behalf of the respondent signed an employment separation certificate for the Department of Social Security. This document described the applicant throughout as an employee.
The respondent deducted income taxation from the payments that were made to the applicant. This would ordinarily also be indicative of an employer/employee relationship. However, Mr and Mrs Gullotti said that the deduction of income tax was made because of advice that they had received from their accountant, years earlier. This was to the effect that even though crew members were engaged on share fishing arrangements, as Mr and Mrs Gullotti asserted, if a crew member was paid gross amounts and did not themselves declare income tax, Mr and Mrs Gullotti could be liable to pay income taxation with respect to the gross amounts paid to the deck hand. Due to the evidence of this advice, the fact that the respondent deducted amounts of income tax from the amounts paid to the applicant has less significance than it might ordinarily have.
Another important indicia of whether somebody is an employee is what is known as the organisation test. In this case it is clear that the applicant was integrated within the business of the respondent. The respondent conducted a fishing business on one boat. The applicant was the only crew member of the boat for much of the period of his engagement. The applicant was not in any real sense carrying on a business on his own account; see Fitt & HSUA v Department of Health and Community Services, unreported, IRCA No. 613/95, Murphy JR, 17 November 1995 at page 14.
In considering this issue, I am mindful of the submission of Mr Ward that the relationship between Mr Gullotti and the applicant was one of skipper to deck hand. Therefore there will in that relationship be an element of control, irrespective as to whether the deck hand is the employee of the company of which the skipper is a director. I accept this to be correct, but as set out above, the degree of control exercised or sought to be exercised by Mr Gullotti over the applicant went above and beyond that which would be exercised simply by a skipper over a deck hand.
I also take into account the other points raised by Mr Ward on this issue, that the applicant provided his own sea boots, used his motor vehicle for himself and Mr Gullotti for work matters when the latter's motor vehicle was damaged, assisted in selling fish and arranged for a friend to lend a generator to the respondent. However, I do not think these matters either individually or collectively are of much weight.
In considering all the indicia set out above, I am of the firm view that the applicant was the employee of the respondent. This is reinforced by my clear impression of the nature of the relationship. The importance of "a matter of impression" was referred to in Re Porter by Gray J at page 184. See also Purvis v Chiefton Management Pty Ltd, unreported, IRCA No. 527/95, Marshall J, 29 September 1995 at page 10 and Garth v Innerspace Wardrobes, unreported, IRCA No. 495/95, Murphy JR, 22 September 1995 at page 7.
My conclusion on this point is that the applicant was in an employment relationship with the respondent and that therefore the Court has jurisdiction under Section 170EA of the Act to determine the matter.
TERMINATION OF EMPLOYMENT?
As stated earlier, the respondent's alternative submission was that the applicant's employment was not terminated at the initiative of the employer. It is agreed that the applicant's employment with the respondent ceased on 11 October 1995. There was, however, some disagreement in the evidence as to how this came about.
The applicant said that he and Mr Gullotti fished every day weather permitting. There were no set days off. They would not go fishing when they were unable to due to the weather. Further, if Mr Gullotti had other business to take care of then they may take days off.
The applicant said that some time after he commenced work, Mr Gullotti required him to perform maintenance work on nets. This involved work on old nets and also tying newly purchased nets. The applicant said that this was often done in the afternoon after fishing in the morning.
The applicant said that some time prior to his dismissal, probably in September, he had worked for two weeks straight. This was because there were good weather conditions and they were catching a lot of sharks. The applicant was then told by Mr Gullotti that he could have a two day holiday break.
Mr Gullotti had purchased a new net and during the break said that he wanted the applicant to tie net during the break. The applicant did not agree to this. The applicant then came to see Mr Gullotti at his house during his break. He said that Mr Gullotti was irate that he had not tied the net. The applicant said that he had agreed to tie net on days after fishing and that he did not feel that it was fair for him to tie net on his days off. However, they finished tying the net that day.
The applicant said that he was concerned that Mr Gullotti had attempted to direct him as to what to do when he was having days off. He therefore made some enquiries about whether Mr Gullotti was legally entitled to do this.
Fishing recommenced after the two day break and he then worked, according to the applicant, three weeks straight. Towards the end of this period, the applicant was advised that he would be having a few days' break. This would commence on Saturday or Sunday. The applicant said that he, Mr Gullotti and Mr Elphick, who was also employed during this period, were all tired. They finished work on the Sunday and the applicant thought that he would have Monday to Wednesday as a break. On the Monday, the applicant proceeded to fix his motor vehicle which had broken down. On the Tuesday, the applicant went to a part-time job which he had maintained throughout his employment with the respondent. This was a gardening job which he did with his father. He said that he did about six hours' work per week in this job which was at an estate in Baldivis.
The applicant said that he then went to Mr Gullotti's house. Mr Elphick was in the backyard. The applicant saw Mr Elphick and then Mr Gullotti came from within the house to the backyard. Mr Gullotti asked the applicant "where he had been" and "what was he doing" and "where was he to tie net". The applicant replied that he had been at the "farm" with his father doing gardening work. Mr Gullotti said that he wanted the applicant to tie net and that he was not "fucking" paying 17% if he was not there to tie net when he (Mr Gullotti) wanted him to. The reference to 17% as opposed to the 15% agreement initially entered into will be referred to later in these reasons. The applicant said that he told Mr Gullotti that this was his time off. The applicant said that Mr Gullotti replied that he "did not give a shit", when he had work to do he expected the applicant to do it. He would not pay 17% to someone who would not do the work. The applicant attempted to say to Mr Gullotti that this was unreasonable as he had been told he was having days off and made plans accordingly. He said that he did not feel as though he should change his plans because Mr Gullotti had bought net which required tying. Mr Gullotti replied that he was not interested in excuses and that there would be "a hundred blokes who would have the job tomorrow" if he did not complete what was required of him. The applicant said that he attempted to reason with Mr Gullotti in a calm manner and explain that when he had days off he should be able to do as he pleased. Mr Gullotti said that when he wanted net tying to be done it should be done and that one could not catch fish without a net. The applicant said that Mr Gullotti said that if the applicant did not want to do this then he could "piss off". The applicant explained to Mr Gullotti that he had plans for the following day so that it was not reasonable to expect him to tie net. The applicant said Mr Gullotti told him that he did not "fucking care" what plans he had, that if he was not going to show up he would be sacked. The applicant said that he kept trying to say that it was unreasonable to expect him to tie net without reward. Mr Gullotti said that the reward was 17% and therefore the applicant should tie net when Mr Gullotti felt it was required. He said that Mr Gullotti continued to "rant and rave" and was not interested in discussing the issue. The applicant asked Mr Elphick what he felt and Mr Elphick said that he did not want to get involved and walked away. The applicant attempted to come to an arrangement with Mr Gullotti concerning net tying but Mr Gullotti said that if he was not going to tie net then he could "fuck off". The applicant presumed from this that Mr Gullotti was referring to dismissal from his employment. The applicant could not reach any agreement with Mr Gullotti and the choice he was given was to tie net tomorrow or to "fuck off". The applicant was not prepared to tie net the following day as he had made other plans.
The applicant then went to see Mrs Gullotti. Mrs Gullotti handled the book work of the respondent. She was then inside the house. The applicant told her that Mr Gullotti had told him to "get lost" so could she pay what was owed to him as he believed he had been dismissed. Mrs Gullotti said that this could take a day or two to work out. The amount depended on the amount of fish sales.
As it turned out, the applicant was given his cheque the next day. He was only paid for the amount of fish sold to date. He was not given any money in lieu of notice or other severance pay.
The applicant also wanted Mr or Mrs Gullotti to sign a separation of employment certificate for the Department of Social Security. Apparently this would enable him to claim social security benefits more quickly. This form was completed by Mrs Gullotti and signed by Mr Gullotti. On the form a box was ticked saying that the employee ceased work voluntarily. Then in another box which was headed "Give reason for voluntary termination of employment or for unsatisfactory work performance", was written "Didn't turn up for work". There was also an incorrect date on the separation certificate in that it indicated that the applicant had started employment on 1 November 1995. The applicant asked Mrs Gullotti for the form to be amended. He asked why the box had been ticked when he did not quit. He wanted the box changed to indicate that he had been terminated. Mrs Gullotti said that this could be discussed with Mr Gullotti but he was fishing.
The applicant later saw Mr Gullotti about the form. Mr Gullotti said that he had resigned and had not been sacked. The applicant replied that he had not resigned. He then asked, did he still have his job then. The respondent replied "If I did not tell you to fuck off then, fuck off now". He asked the applicant to leave. The applicant did not get the form amended.
Regarding the increase in pay from 15% to 17% of the catch, the applicant said that he spoke to Mr Gullotti about his income a few months after he had commenced working. The income he was receiving was not as much as he had expected. He said that Mr Gullotti had told him that 15% of the catch would equate to about $400 per week but this had not eventuated. He said that he told Mr Gullotti that he would not be able to continue working for him unless he was given a better incentive. Mr Gullotti then agreed to increase his pay to 17% of the catch. As set out later, Mr Gullotti did not agree with this version of events.
In his evidence, Mr Elphick said that he worked with Mr Gullotti and the applicant fishing in the three weeks before the applicant left the employment of the respondent. He said that during this period they had been fishing seven days a week. Mr Elphick said that Mr Gullotti had said that they could have a few days off. He understood from that that he could have a few days off work. However, on the morning of the argument between Mr Gullotti and the applicant, Mr Elphick was telephoned by Mr Gullotti. Mr Gullotti asked Mr Elphick to tie net with him that day. Mr Elphick did not like this request because he had been told that he could have the day off work. He said that he felt that it was unfair. However, he was concerned that if he did not show up he would get the sack. This was not based on anything that Mr Gullotti said but simply his feeling.
Mr Elphick said he was there for part of the disagreement between the applicant and Mr Gullotti. He said that Mr Gullotti used what he described as aggressive and violent language. He said that this was because Mr Gullotti was saying "fuck this and fuck that". He said that the applicant had attempted to reason with Mr Gullotti and not argue. Mr Elphick said that Mr Gullotti did not want to hear what the applicant was saying. Mr Elphick said that Mr Gullotti said "Don't give me that bullshit". He said that Mr Gullotti was not listening to what the applicant was saying. Mr Gullotti was aggressive, would not listen and kept swearing.
Mr Elphick agreed that the applicant had asked him what he thought of the situation of working on days off. Mr Elphick said that he didn't like it, that he wanted the days off. Mr Elphick said that he then tried to find something to do to get out of the argument. He moved away. He said that he heard Mr Gullotti say that if the applicant did not tie nets then he could "fuck off". He did not hear any mention of the applicant resigning. The applicant had not given Mr Elphick any impression that he was unhappy with fishing, did not want the job or wanted to resign. Mr Elphick said the applicant did not swear during the discussion.
In cross examination, Mr Elphick denied that Mr Gullotti had said that they were having days off fishing to tie net when they ceased fishing on the Sunday before the disagreement between Mr Gullotti and the applicant.
Mr Gullotti in his evidence agreed that the issue of tying of net was not discussed when the applicant was first employed. He said that the applicant raised with him that he was not getting paid enough on the rate of 15% of the catch. Mr Gullotti said that he agreed to increase the percentage to 17% if the applicant would tie nets. This was agreed to by the applicant. Mr Gullotti said that the applicant tied net when net was first bought after this agreement but after that there were difficulties with the applicant doing this. The first time that this occurred was when a net had been purchased which would take two days to hang. The applicant worked with Mr Gullotti to hang net on the first day but did not reappear on day two. On this day the applicant came to see the respondent in the afternoon. The applicant was asked where he had been and he said that he had been gardening. Mr Gullotti asked the applicant whether the gardening job was more important and the applicant said "Yeah". Mr Gullotti said that the boat came first and his other job second. There was an argument and Mr Gullotti said it should not happen again. Mr Gullotti said that he could put the applicant back to working for 15% of the catch and pay somebody else to tie the net. That afternoon the applicant assisted Mr Gullotti in finishing the tying of the net.
Subsequent to that there was the disagreement which led to the cessation of employment. This concerned nets which had been purchased on 18 September 1995. Mr Gullotti claimed that he told the applicant (presumably on the Sunday) that they would not be fishing the following day but that they would tie net. The applicant said that he could not come the following day because of the gardening job. However, he said that he could be there on the Tuesday (the next day). Mr Gullotti agreed to this. On the Monday Mr Gullotti tied net without the applicant. On the Tuesday the applicant showed up at about lunch time. Mr Gullotti said the applicant had a smirk on his face. He asked the applicant where he had been and swore at him. He said that the applicant laughed. The applicant was asked if "it was a joke". The applicant did not answer. The applicant said he had been at his gardening job again. The applicant said that he could not now tie net but was going to fix his Landrover. Mr Gullotti said that he told the applicant that if he was not there the following day that he should find himself another job. He said that he told the applicant he was not paying him 17% not to tie net. He would pay someone else to tie the net and give the applicant 15%. If he was not there the following morning, he could find another job. He said that the applicant laughed and walked off. Mr Gullotti said that the applicant said "Are you going to sack me?" and appeared to be trying to provoke him into dismissing him. Mr Gullotti said that he was not sacking him but if he was not there in the morning he should find another job. Mr Gullotti said both Mr Elphick and Mrs Gullotti were there when this was said. The applicant did not tie net the next day and only came to the house that day to collect his final wages. Mr Elphick and Mr Gullotti were tying net that day.
Mr Gullotti agreed that there was a disagreement about the completion of the separation certificate.
Mr Gullotti agreed that there was discussion about it being unfair to tie nets on days off. Mr Gullotti said that the applicant said this to him but he replied that it was not unfair because he was being paid the extra 2% to tie the nets. Mr Gullotti disputed previously saying to the applicant that net would be tied on fishing days in the hours after fishing.
During cross examination, Mr Gullotti agreed that during the discussion about the separation certificate he told the applicant to "fuck off".
Also during his cross examination Mr Gullotti agreed he told the applicant during the argument on the Tuesday that if he did not come the following day to tie net he could "fuck off". However, he denied that this constituted a dismissal. Mr Gullotti said that the applicant could tie net the following day or "fuck off", it was up to him. Mr Gullotti did not accept that he had previously told the applicant and Mr Elphick that they could have days off work.
As stated earlier, Mrs Gullotti did the book work for the respondent. Her records indicated that the applicant's share of the proceeds of the catch was increased to 17% in May 1995. This accorded with the evidence of Mr Gullotti that the applicant's share was increased because he agreed to tie net. This was because an invoice was tendered indicating that net had been purchased on 2 May 1995. From the records of Mrs Gullotti, the applicant's share increased to 17% from 8 May 1995. This was the first amount paid to the applicant in May 1995. Given this evidence, I am prepared to accept on balance that the applicant's share increased to 17% on the basis that he would tie net for the respondent.
Mrs Gullotti also said that she heard and saw some of the relevant argument between the applicant and Mr Gullotti. She said that Mr Gullotti and Mr Elphick had been working on the net and that the applicant was not there. The applicant then arrived. Mr Gullotti asked where he had been and swore at him. She said that Mr Gullotti was angry. She said that the applicant laughed. She said Mr Gullotti asked was it a joke and the applicant laughed again. Mrs Gullotti thought that she should leave and went into the house. She did not hear anything else except that she heard the applicant saying to Mr Gullotti "Tell me I'm sacked". Mr Gullotti replied that it was up to the applicant. He could come in the morning. This exchange was then repeated.
Mrs Gullotti agreed that the applicant came to see her the next day to obtain his final payment for a share of the catch. Mrs Gullotti agreed that there was a discussion with the applicant about the way in which the separation certificate had been filled out and that she would not change the certificate without the permission of Mr Gullotti and that the applicant should come back later to discuss the matter with Mr Gullotti.
This completes the review of evidence relevant to the issue as to whether there was a termination of the applicant's employment with the respondent.
THE LAW ON TERMINATION
For present purposes, the Act does not define "termination of employment". However, Section 170CB of the Act states that an expression has the same meaning in Division 3 of Part VIA of the Act as in the Termination of Employment Convention, 1982. In Article 3 of the Convention, the terms "termination" and "termination of employment" are stated to mean "termination of employment at the initiative of the employer".
The Full Court of the Industrial Relations Court of Australia considered the expression "termination of employment at the initiative of the employer" in Mohazab v Dick Smith Electronics Pty Ltd, unreported, IRCA No. 625/95, 28 November 1995. In the joint judgment of Lee, Moore and Marshall JJ at page 11, their Honours said that:
"A termination at the initiative of the employer may be treated as a termination in which the action of the employer is the principle contributing factor which leads to the termination of the employment relationship".
At page 12, their Honours said that an important feature was:
"that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action that it did, the employee would have remained in the employment relationship".
In this case, there is broad agreement between all relevant witnesses that the cessation of the applicant's employment occurred after three events:
The argument between the applicant and Mr Gullotti on Tuesday, 10 October 1995 concerning net tying the following day. In this argument, Mr Gullotti used words which can only be construed as meaning that if the applicant did not turn up for net tying the following day then his employment would cease.
The applicant did not turn up for net tying the following day.
The employment of the applicant by the respondent did not continue.
In these circumstances, I am satisfied that the termination of employment was at the initiative of the employer. It was Mr Gullotti who made the threat referred to in point 1. above. The threat was carried out, albeit perhaps tacitly, when the applicant's employment did not continue when he did not appear for net tying on the relevant day. That the employment had ceased was confirmed by the respondent in completing the separation of employment certificate for the applicant. Further, I accept the applicant's evidence as to the words used by Mr Gullotti during the disagreement with Mr Gullotti about the way in which the separation certificate had been completed. These words emphatically confirmed that the employment of the applicant had ended. In my opinion, it was the actions of the respondent which were the critical actions in terminating the employment relationship; see Mohazab, page 14. I am satisfied that the applicant did not voluntarily leave the employment. Whilst his act in failing to attend for net tying may have led to termination, it was the attitude and decision of Mr Gullotti on behalf of the respondent which resulted in the cessation of the employment relationship; see the reference in Mohazab, page 11, to the judgment of Moore J in Grout v Gunnedah Shire Council (1994) 125 ALR 355 at 372.
It seems to me that the real question is whether, in light of the applicant's conduct which led to the termination, there has been a breach of the Act.
I should also refer to two aspects of the applicant's evidence. Firstly, during his cross examination the applicant admitted that the income he received from his gardening job was "cash money", which he did not declare for the purposes of income tax. Secondly, the applicant gave evidence of a motor vehicle accident which he had when travelling in the same vehicle as Mr Gullotti. The applicant received some minor injuries in the accident and attended his doctor. The doctor gave the applicant a certificate for absence from work due to his injuries for one week. However, as it turned out, the applicant's injuries only necessitated him being absent from work for two days. The applicant made a claim against the State Government Insurance Commission of Western Australia ("the SGIC") for the loss he suffered as a result of his injuries. However, the applicant admitted in cross examination that he claimed loss of wages for a full week, based on the doctor's certificate, rather than the actual loss of wages of two days. Mr Ward relied on both these matters to attack the credibility of the applicant. In considering the evidence I have taken into account these matters. I also take into account that, to his credit, the applicant readily admitted both matters when asked about them. I will further comment on these pieces of evidence in my conclusion. My determination of this claim has not been wholly dependent upon an assessment of the applicant's credibility. This is because on a crucial issue, that of whether Mr Gullotti told the applicant and Mr Elphick that they could have a few days break from fishing for net tying or just general leave, the applicant's evidence is corroborated by Mr Elphick. Although Mr Elphick is only 19 years old and appeared to be reserved and quiet in nature, I was impressed with him as being a witness of truth.
BREACH OF THE ACT
For relevant purposes, Section 170DE(1) of the Act states that an employer must not terminate an employee's employment unless there is a valid reason or reasons connected with their capacity or conduct. Section 170DE(2) provides that a reason is not valid if, having regard to the employee's capacity and conduct, the termination is harsh, unjust or unreasonable.
Section 170EDA(1)(a) provides that a termination of employment is taken to have contravened Section 170DE(1) unless the employer proves that there was, apart from subsection 170DE(2), a valid reason of the kind referred to in Section 170DE(1). Section 170EDA(1)(b) provides that if the employer does so prove, the termination is nevertheless taken to have contravened subsection 170DE(1) if the applicant proves that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid.
In this case, the respondent terminated the employment of the applicant because of his failure to attend for net tying on 12 October 1995. This was a matter relating to the applicant's conduct. The next question is whether it constituted a valid reason for termination.
In considering this issue I take into account the following:-
The applicant's duties did include tying of net and the increase in the rate of pay from 15% to 17% of the catch was because the applicant had agreed to tie net for the respondent.
Prior to the break from fishing which included the day on which the argument arose concerning net tying, the applicant had been fishing every day for two to three weeks.
I accept the evidence of the applicant, as supported by Mr Elphick, that at the cessation of this fishing period, Mr Gullotti informed the applicant and Mr Elphick that they would be having a few days' break. I am satisfied that Mr Gullotti did not qualify this in any way. In particular, I am satisfied that Mr Gullotti did not advise either the applicant or Mr Elphick that they would be taking a few days' break from fishing for the purposes of tying net. I am satisfied that the break was general leave for the applicant and Mr Elphick.
There were no pre-determined or set days off from work for the applicant. Days off from fishing were determined by Mr Gullotti. The applicant was advised of such days in advance by Mr Gullotti.
In this instance, the applicant was either specifically advised or it was a reasonable inference by him that Monday to Wednesday would be days off from work for the applicant and Mr Elphick.
The argument concerning net tying arose on the Tuesday or the second of these three days. The termination of employment occurred when the applicant did not attend for work on the Wednesday which was the third of the three days off.
The applicant had, in reliance upon the advice from Mr Gullotti that he would not be required for work from Monday to Wednesday, made plans as to what he would do on the Wednesday.
Whilst the failure to attend for work would in many circumstances provide a valid reason for the termination of employment, I am not satisfied that it was in this case. This is because after a lengthy period of work the applicant was specifically advised that he would be having a break. He was either specifically informed or reasonably inferred that the break would extend from Monday to Wednesday. Therefore the applicant was entitled not to work on the Wednesday. Whilst Mr Gullotti could always request that the applicant re-commence working on Wednesday rather than Thursday, the applicant's failure to agree to this could not provide a valid reason for the termination of employment.
At the very least, such a termination of employment would be harsh, unjust or unreasonable and therefore in contravention of the Act pursuant to Section 170DE(2). I therefore find that there has been a contravention of this Section.
There has also been a contravention of Section 170DB of the Act. According to the table set out in Section 170DE(2), the applicant should have been given notice of at least one week before the termination of his employment or compensation instead of notice according to the formula set out in Section 170DB(4) of the Act.
REMEDY
The remedy for the breach of Section 170DB of the Act is set out in Section 170EE(5). This states that in respect of a contravention of Section 170DB constituted by the termination of employment of an employee, the Court may make an order requiring the employer to pay to the employee an amount in damages equal to the amount of the compensation which, if it had been given by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section. As stated above, the amount of compensation referred to is calculated in accordance with the formula set out in Section 170DB(4). This specifies an amount of compensation equal to the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period. The period in this instance is one week. Calculation of the amount of damages in this instance is complicated by the fact that the applicant did not get paid a set amount, but was paid an amount based on the gross sales of the catch. In such circumstances there is no precise answer to the question of what the applicant would have been paid if the employment had continued for a further week. Therefore, in my opinion, the section must be construed to mean the amount that the applicant would have been likely to have been paid by the respondent if the employment had continued for a further week.
I think that this can best be calculated by considering the total of all sale proceeds for September and October 1995. I limit my consideration to this period because the evidence was that there were large numbers of sharks caught during this period. If I were to take into account earlier periods this would take into account times when lesser numbers of sharks were caught than was likely in the seven days following termination. In considering what were the likely earnings of the applicant if his employment had continued for a further week, it is more appropriate to consider the sale proceeds which were being realised in the period leading up to the termination of employment. In making the calculation however I exclude sales of shark fins, as to which see further below. The records of Mrs Gullotti for September 1995 and October 1995 prior to the termination of employment of the applicant, record that there were fish sales totalling $33,491.68. There were 41 days in September and October up to the time of the termination of employment. For these 41 days there was therefore an average of $816.87 of fish sales per day. Seventeen percent of this amount is $138.87. Seven times this amount is $972.09. Therefore, this amount is the gross amount which the applicant would have been likely to have earned if his employment had continued for a further seven days.
The records of Mrs Gullotti indicate that after the applicant's employment was terminated, there were further fish sales on 16, 20 and 24 October 1995. However, I do not consider it appropriate to have regard to these figures when determining the damages for the breach of Section 170DB. This is because I do not know whether the fish catch and sales subsequent to the applicant's termination of employment were affected by the fact that the applicant was no longer able to work for the respondent. I do not know whether there was any disruption to the fishing activities of the respondent occasioned by the applicant no longer working for it.
With respect to the breach of Section 170DE of the Act, the primary remedy for such a breach is reinstatement. This remedy is provided for by Section 170EE(1) of the Act. However, where reinstatement is impracticable, the Court may if it considers it appropriate in all the circumstances make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate. As stated at the outset of these reasons, it was agreed between the parties that reinstatement is impracticable. Further, I am satisfied that it would be appropriate in all the circumstances of this case to make an order for compensation. The reason for this is that I consider that by the actions of the respondent the applicant has suffered economic loss.
Section 170EE(3) states that in working out the amount of compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment. The subsection goes on to state that the amount of compensation must not exceed the amount of remuneration that the employee would have received in respect of the period of six months immediately following the day on which termination took effect, if the employee had continued to receive remuneration at the rate at which he received remuneration immediately before the termination took effect.
In this case there is again a difficulty in precisely ascertaining this amount because of the way in which the applicant was paid. I think that the maximum permissible amount of compensation can be best calculated by ascertaining the gross sales over the period that the applicant worked and then averaging this over a six month period.
The records of Mrs Gullotti indicate that gross sales (excluding shark fins) for the period during which the applicant was employed were $106,056.52. Taking 3 November 1994 as the commencement date of the applicant's employment, the applicant worked for the respondent for 342 days. There was therefore an average of $310.11 obtained from fish sales for each day during which the applicant worked for the respondent. Seventeen percent of this is $52.72. Six months is approximately 182.5 days. Multiplying this figure by $52.72 gives an amount of $9,621.40. This figure is therefore the amount that the applicant would have been likely to have received if his employment had continued with the respondent and he had been paid at the rate at which he received remuneration prior to termination. Therefore this amount is the maximum amount of compensation that can be awarded for the breach of Section 170DE of the Act.
Subsequent to the termination of the applicant's employment, he has had a limited amount of work. He has continued his gardening job that he maintained during the period of his employment with the respondent. There is no indication that the amount of income earned from this gardening job increased after the termination of employment with the respondent. The applicant's evidence was that this job was simply six hours' work per week. Therefore, I disregard any income earned from the gardening job subsequent to the termination of employment, for the purposes of assessing compensation.
The applicant has received some social security benefits since the termination of his employment. It has been held, however, that social security benefits should not be taken into account for the purposes of assessing compensation under Section 170EE: Tranter v Council of the Shire of Wentworth, unreported, IRCA No. 573/95, Marshall J, 24 October 1995, pages 9 and 10 and Mullany v Active Concrete, unreported, IRCA No. 262/95, Wilcox CJ, 3 May 1995, page 5.
The applicant also said that he had obtained 12 days of casual welding work, for which he was paid $12.00 per hour for eight hours per day. This makes a total of $1,152. I am satisfied that this amount ought to be taken into account in assessing compensation. The applicant said that there would be no further casual welding work from this source.
The applicant gave evidence that he had been looking for other work without success. He had made several applications to fishing companies and fishing people. Under cross examination, the applicant said that the applications took the form of the applicant asking deck hands who worked on the fishing boats in the area whether there was a position vacant. It seems that the applicant did not ask any of the skippers whether there was any work available. Further, the applicant's enquiries were limited to the Mandurah area and did not extend to Fremantle, for example. The applicant explained this on the basis that his 1969 Landrover was not a suitable motor vehicle to drive from his residence in Safety Bay to Fremantle in the early hours at which he would be required to travel to commence fishing. However, his de facto partner had a newer vehicle and there was no satisfactory explanation as to why the applicant could not use this vehicle to travel to Fremantle if he obtained a fishing job there. There was also no evidence that the applicant had attempted to get more gardening work or good reason offered why he had not done so.
I am not satisfied that the applicant has made reasonable efforts to try to obtain employment since his termination by the respondent. However, I also note that even if the applicant had made all such efforts, it is questionable whether he would have been likely to obtain employment. The applicant has no formal qualifications or trade certificates although he has passed some units in an Associate Diploma of Business course at TAFE.
Marshall J in Ferry v Minister for Health, unreported, IRCA No. 408/95, 25 August 1995 at page 14, said that "There is no obligation on an employee dismissed for no valid reason to mitigate his or her losses". However, this was said in the context of a case in which reinstatement was sought and ordered. In Soltwisch v Didco Pty Ltd, unreported, IRCA No. 319/95, 19 July 1995, Judicial Registrar Millane said at page 14:
"It would be inappropriate for this Court, in dealing with compensation claims rather than reinstatement claims, to appear to endorse an approach that suggests applicants can decline to test the employment market pending the determination of the proceedings, particularly where the facts central to a reason for termination are admitted".
In other decisions of Judicial Registrars, it has been held in compensation cases that there is a duty to mitigate loss. I refer to the decisions of Cox v SA Meat Corporation, unreported, IRCA No. 100/95, L Farrell JR, 8 March 1995, Marke v G & J O'Connor Pty Ltd, unreported, IRCA No. 11/95, Staindl JR, 18 January 1995 and Glimshot v Australian Unity Friendly Society t/as Christian Unity, unreported, IRCA No. 124/94, Ryan JR, 9 December 1994. With respect to the Cox decision, I note that there was a review of the decision of the Judicial Registrar by Justice von Doussa: Cox v SA Meat Corporation (1995) 60 IR 293. However in the review, von Doussa J does not criticise the view of the Judicial Registrar that it would be appropriate to take into account the principle of mitigation of loss. I think it appropriate in assessing compensation to take into account my finding that the applicant has not to date made all reasonable efforts to find alternative employment.
In assessing compensation I also take into account the fact that the applicant could well have resigned from the employment in the short to medium term. This could well have happened given the disagreements between the applicant and Mr Gullotti. I also take into account that the applicant's employment could possibly have been terminated at a later stage by the respondent in a manner and for a reason which did not breach the Act. However, apart from the disagreements with respect to the tying of nets, the applicant's work performance to the time of the termination of his employment was not criticised by the respondent.
In all the circumstances I think it appropriate to make an award of compensation of the equivalent of four months' remuneration, less the $1,152.00 earned from the welding job. This amount of compensation takes into account that the applicant has suffered a loss before the trial. However, it does not compensate him for the full period of unemployment prior to trial as he has not made reasonable efforts to find alternative employment. In addition I have made an allowance for some future economic loss. Again the quantum of this reflects that, to date, the applicant has not made reasonable efforts to find alternative employment; so that one cannot simply conclude that it is likely he will remain unemployed for an extended period.
Four months (120 days) at the average daily rate paid to the applicant, as referred to above, $52.72, equals $6,326.40. Deducting the amount of $1,152.00 leaves an amount of $5,174.40.
MINIMUM CONDITIONS OF EMPLOYMENT ACT
As stated earlier, the applicant also claimed that he was not paid entitlements under the Minimum Conditions of Employment Act (WA). Section 23 of the Act gives an employee, as defined in the Act, annual leave entitlements. In Section 3, an employee is defined to mean a person who is an employee within the meaning of the Industrial Relations Act 1979 but does not include a person who belongs to a class of persons prescribed by the Regulations as persons not to be treated as employees for the purposes of the Act.
Section 7 of the Industrial Relations Act 1979 (WA) (as amended) defines an employee to include any person employed by an employer to do work for hire or reward and any person whose usual status is that of an employee. Given my findings with respect to this matter as set out above, I am satisfied that the applicant meets the definition of an employee in the Industrial Relations Act.
Regulation 3 of the Minimum Conditions of Employment Regulations 1993 prescribes in Schedule 1 persons who are not to be treated as employees for purposes of the Act. Item 1 of Schedule 1 is "persons whose services are remunerated wholly by commission or percentage reward".
In my opinion the applicant's services were "remunerated wholly by percentage reward". This is because his remuneration was wholly based on a percentage of the gross proceeds of sale of the catch of the fishing boat. The argument that the applicant is excluded from the definition of an employee for the purposes of having the statutory entitlement to annual leave is enhanced by Section 23(1) of the Act. This refers to an employee being entitled for each year of service, to be paid annual leave for the number of hours the employee is required ordinarily to work in a four week period. This applicant was not required to ordinarily work any particular number of hours in a four week period. The number of hours that he worked was determined by the number of days that fishing activities took place and the vagaries of the individual fishing trip including such matters as the weather, the success or otherwise of the trip and consequent upon that the time required to be spent in cleaning fish caught.
It seems from the terms of Section 23 of the Minimum Conditions of Employment Act and the item of the Schedule to the Regulations I have referred to, that the intention is for the Section 23 entitlements to apply to employees who are employed on a wage or salary and who perform a reasonably regular number of hours. This does not apply to the applicant. Not only was his remuneration calculated wholly by reference to a percentage of the proceeds of sale of the fishing catch, but he did not have any ordinary hours of work. In the circumstances, I am not satisfied that the employment of the applicant is covered by the Minimum Conditions of Employment Act.
Therefore, an employee deck hand in Western Australia who is paid on a percentage reward basis would need to individually negotiate annual leave conditions as part of their contract of employment to ensure entitlement to such leave.
SALE OF FINS
An issue that was raised during the course of the hearing was the fact that the applicant had not been paid a percentage of the sale of shark fins. This is confirmed by the records kept by Mrs Gullotti which separates the proceeds of sale of shark fins from other fish sales. It is only with respect to the latter that the applicant's percentage was calculated and paid.
The applicant claimed that he was entitled to be paid for the sale of shark fins. He said that the agreement with the respondent was that he would be paid the fixed percentage of the total catch. The total catch included shark fins and therefore he was entitled to a percentage of these sales. The evidence of Mr Elphick was that he was employed on the same basis.
However, the evidence of Mr Gullotti was that he advised the applicant that the sale of shark fins was excluded from the proceeds of which the applicant's percentage would be calculated. Mr Gullotti said that this had been the basis upon which previous deck hands had been employed. Mr Gullotti's evidence is supported by the fact, as mentioned, that the proceeds of sale from shark fins were separated in the records of Mrs Gullotti. There would be no reason for her to separate such proceeds, if the agreement was that the applicant was to be paid a percentage of gross sales for these items as well.
I am not satisfied, on balance, that the applicant was to be paid a percentage of the proceeds of the total catch of the respondent including shark fins. Therefore there has been no underpayment of the applicant on the basis of the failure of the respondent to pay the applicant for a percentage of the sale of shark fins.
CONCLUSION
As set out above, I have found that the respondent has contravened Section 170DB and 170DE of the Act. I have set out above the amounts of damages and compensation to be awarded to the applicant as a consequence of such contraventions. I will also make an order that these amounts be paid to the applicant within 21 days.
I referred earlier to the applicant's evidence about the income he received from his gardening job not being declared for income tax purposes and the claim made against the SGIC. In my opinion, I am obliged to ensure that the executive branch of the state and federal governments is aware of this evidence; Petera Pty Ltd v Eaj Pty Ltd (1985) 7 FCR 375 at page 380. I propose to direct the Deputy District Registrar of the Court to cause to be forwarded to the Attorney General of the Commonwealth, in respect of the income tax matter and the Attorney General of Western Australia, in respect of the SGIC matter, a copy of these reasons for judgment and to make available, as may be required, the full transcript of proceedings and the exhibits for inspection by any officers authorised by the Attorneys General or the Commissioner of Taxation.
I certify that this and the preceding 30 pages are a true copy of the Reasons for Judgment of Judicial Registrar Ritter.
Associate
Date:
The applicant appeared in person
Counsel for the respondent: Mr P Ward
Solicitor for the respondent: Peter Ward
Hearing date: 21 & 22 February 1996
Judgment date: 22 March 1996
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