David John Perrin v Des Taylor (Trading as Bellbowrie Motors Pty Ltd)

[1995] IRCA 40

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - whether a valid reason for termination - procedural fairness - compensation - country employment in Motor Vehicle Industry.

Industrial Relations Act 1988 ss. 170DE and 170EE.

DAVID JOHN PERRIN v DES TAYLOR (TRADING AS BELLBOWRIE MOTORS PTY LTD)

No. NI 576  of 1994

CORAM:      McILWAINE JR
PLACE:        SYDNEY
DATE:          20 FEBRUARY 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

No. NI 576 of 1994

BETWEEN:

DAVID JOHN PERRIN

Applicant

AND:

DES TAYLOR

(trading as BELLBOWRIE MOTORS PTY LTD)

Respondent

Before:        McIlwaine JR
Place:          Sydney
Date:           20 February 1994

REASONS FOR JUDGMENT

(Delivered Ex Tempore - Revised from transcript)

Mr David John Perrin relies on an application under section 170EA of the Industrial Relations Act 1988 filed in the Registry on 22 July 1994. The applicant claims, paragraph 1(a): An order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988; and (c) an order that the respondent pay compensation to the employee.

I note that paragraphs 1(b) and 2 of the application have been deleted.  I also am satisfied that it would be impracticable for me to order reinstatement of Mr Perrin to his former position or to another position in the company.

Mr Perrin gives evidence that at 4 pm on Friday, 8 July 1994 as he was about to leave work his department manager, Mr Ross Bruce, came and sat at his desk and told him that he had been instructed by Mr Des Taylor, who I understand from other evidence to be the dealer principal of the company, to dismiss him.  He was also told he could attend the staff party that night and to enjoy himself.

Mr Taylor is mentioned in the evidence on a number of occasions as being involved in discussions with Mr Perrin about his performance.  The evidence of Mr Perrin was not affected by cross-examination on these issues and Mr Taylor was not available to give evidence.

There is a background to this matter which I will briefly set out and it is included by way of a number of exhibits which are before the court.  These comprise - in exhibit 3, a letter dated 11 May 1993 from Mr Bruce to Mr Perrin; one dated June 1993 and one dated October 25, 1993 again addressed to Mr Perrin; and a staff review of December 1993; and a letter dated 28.4.1994 on which there is some dispute as to whether this was signed by Mr Perrin. 

Whilst it is impossible for me to make a finding on this matter because I do not have in front of me the original documents, but I note that a signature which appears on the letter of 11 May 1993 to Mr Perrin can be compared with the signature on exhibit ‘B’, which is also a photocopy document.  The signature appears similar to Mr Perrin's but nevertheless nothing of substance turns on that issue.  However, I accept Mr Bruce's evidence that a signature was appended at some stage.

It is also relevant to note that the Court has before it a letter, which was admitted by me after an objection as to relevance, dated 21 November 1994 which outlined that during the period March 1993 Mr Perrin was suffering from an illness and was being treated by Dr Lloyd Mason of Coffs Harbour.  There was evidence given by Mr Perrin to the effect that he went back to work before he was quite well enough to assist the company and I accept his evidence in relation to that matter.

The difficulty that the company has in this matter is that all of the letters that have been written indicate and confirm in some respect that Mr Perrin was a good employee.  There is no dispute between him and Mr Bruce as to the times he spent his lunch hour and other times doing extra work to ensure that work was done.  I need only quote from the staff review of December 1993 where it is said:  "David has the ability of being a good parts interpreter and has no problem with time, quite often sacrificing lunch breaks and staying much later than his appointed finishing time, as is the case many a day because of our department numbers".  And then it goes on to address some of the issues about which Mr Bruce has given evidence as to the problems that are outlined in that letter.  Evidence was also given by Mr Bruce of a review on 25 October 1994 and the issue of a job description dated 27 October 1994.

I am satisfied on the evidence before me that Mr Perrin's position with the company was under review and that at some future stage it may well have been properly determined by the company.  However, I have accepted Mr Perrin's evidence as to what occurred on 8 July 1994 and at that stage he was not given any opportunity to address the specific concerns of the company in a more formal way.  In particular, I note the evidence of Mr Bruce that he declined to provide Mr Perrin with the details of the people who had complained about him.  However, I think this is a course fraught with difficulties in the light of the legislation which provides that a person must have a fair opportunity of responding to the matters which are being put to him as a reason for his dismissal.

I have accepted evidence and I note the agreement of Mr Perrin to the effect that he has been paid four weeks money in lieu of notice,     pursuant to section 170DB.  The difficulty for the respondent in this matter is that section 170DC provides that "an employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless the employee has been given the opportunity to defend himself or herself against the allegations made", or, in subparagraph (b), "the employer could not reasonably be expected to give the employee that opportunity". 

I find in this case that this was not a case in which the employer could not be reasonably expected to give Mr Perrin the opportunity to defend himself or to deal with the allegations as to poor service, or lack of customer service which had been made against him.  Therefore I find that there has been a lack of procedural fairness in this matter and that the termination was made in breach of section 170DC(a) of the act. 

I also find, given the facts that appeared before me in evidence that, in due course a valid reason may have been established by the company for terminating Mr Perrin's employment. However in the circumstances under which the termination was carried out on 8 July 1994, it was not valid. It did not have regard, as it is required to by Section 170DE(2), to the employee's capacity and conduct. I therefore find the termination is harsh and unjust and unreasonable and I propose to order that compensation be paid to Mr Perrin.

On the question of compensation I asked the respondent for submissions on this issue.  The representative of the employer put to me that I should take account of the fact that Mr Perrin commenced employment on 23 March 1992 and was terminated on 8 July 1994 by the Company.  There was no direct evidence of any losses caused to the Company by Mr Perrin although there was a submission to this effect.

I propose to assess the compensation at $10,000.  I do that having regard to the age of Mr Perrin (51), and the difficulty that he will have in obtaining other employment in the industry. In particular, the fact that he is employed in a country town.   I accept the evidence that he has given before me as to the difficulty he has had in obtaining further employment.  In making that order I have taken account of the fact that the company has given four weeks notice.

I order that the respondent pay the applicant the amount of $10,000 compensation by 22 December 1994.

___________________________________________________________________________

REPRESENTATION

Applicant in Person

Representative for the Respondent:   Mr George Harris, Motor Traders’ Association

I certify that this and the preceeding two (2) pages are a true copy of the Reasons for Judgment of Judicial RegistrarMcIlwaine.

Associate:       Julianne Taverner

Date:              20February 1995