Dean Kenneth Hockey v Multiskip Pty Ltd
[1995] IRCA 557
•29 September 1995
CATCHWORDS
INDUSTRIAL LAW - review of JUDICIAL REGISTRAR - nature of review - extension of time for application for review - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - HARSH, UNJUST OR UNREASONABLE - order for payment of compensation
Industrial Relations Act 1988, Div 3 Pt VIA, ss 170DE, 170DF, 170EE, 377
Quality Bakers v Goulding, WI 142R/94, Industrial Relations Court of Australia, 23 June 1995, (unreported) 16-21, Beazley J
Jones v Department of Energy and Minerals, VI 527/94, Industrial Relations Court of Australia, 16 June 1995, (unreported) 18-19, Ryan J
Federated Clerks’ Union v Victorian Employers’ Federation (1984) 154 CLR 472, 493-494, 502
Re Cram; ex parte N.S.W. Colliery Proprietors’ Association Ltd (1987) 163 CLR 117, 135
Ferry v Minister for Health Western Australia, WI 0641R/94, Industrial Relations Court of Australia, 25 August 1995, (unreported) 2, 14, Marshall J
AMIEU v Sunland Enterprises Pty Ltd (1988) 81 ALR 213, 222
Newcrest Mining Limited v AWU, West Australian Branch (1992) 47 IR 189, 201
Corkrey v General Motors Holden Limited (1986) 55 SAIR 531
Andrews v Uniting Church, DI 3 of 1995, Industrial Relations Court of Australia, 19 September 1995, (unreported) 16, Gray J
No. WI 439R of 1994
DEAN KENNETH HOCKEY v MULTISKIP PTY LTD
JUDGE: Marshall J
PLACE: Perth
DATE: 29 September 1995
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WI 439R of 1994
BETWEEN: DEAN KENNETH HOCKEY
Applicant
AND MULTISKIP PTY LTD
Respondent
JUDGE: Marshall J
PLACE: Perth
DATE: 29 September 1995
ORDER
THE COURT ORDERS THAT:
1.The order of the Court constituted by Judicial Registrar Tomlinson made on 5 May 1995 is set aside.
2.It is declared that the termination of the employment of the applicant by the respondent contravened s170DE Industrial Relations Act 1988.
3.The applicant shall pay to the respondent on or before 13 October 1995 the sum of $8,162.02.
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 439R of 1994
BETWEEN: DEAN KENNETH HOCKEY
Applicant
AND: MULTISKIP PTY LTD
Respondent
JUDGE: Marshall J
PLACE: Perth
DATE: 29 September 1995
EX-TEMPORE REASONS FOR JUDGMENT
BACKGROUND
On 19 October 1994 the applicant filed an application under s170EA Industrial Relations Act 1988 (“the Act”) in the Western Australia District Registry of the Court. The application disclosed that the applicant was employed by the respondent as a driver on 24 March 1994 and that his employment was terminated by the respondent on 13 May 1994. The application sought orders including an order that the respondent pay compensation to the applicant. No written notice of the termination of the applicant’s employment was provided to him.
On 31 October 1994 the respondent filed a notice of appearance in the matter. The District Registrar of the Court referred the matter for an informal mediation conference under 075 r5(1) of the rules of the Court on 2 November 1994. The mediation conference was not successful. The application was heard by Judicial Registrar Tomlinson on 5 May 1995. On that day the Judicial Registrar gave an ex-tempore judgment in an abbreviated form and informed the parties that she would give more detailed reasons at a later date. Written reasons were received by the solicitors for the respondent on 27 June 1995. From the final page of the reasons it appears that they were finalised on 20 June 1995.
The order of the Court as constituted by the Judicial Registrar, on 5 May 1995, was as follows:
“The respondent pay the applicant the sum of $9,000.00 within one month of the receipt of written reasons for judgment in this matter.”
That order was entered on 6 July 1995.
On 13 July 1995 the respondent sought a review of the decision of the Judicial Registrar pursuant to s377(1) of the Act. The respondent also sought an extension of the time within which it was required to seek the review. It also sought a stay of the order of Judicial Registrar Tomlinson pending the outcome of the review.
On 20 July 1995, Deputy District Registrar Richardson gave certain directions including an order that the review “is to be conducted on affidavits”. A timetable was provided for the receipt of additional affidavits to those relied upon before Judicial Registrar Tomlinson. The transcript of the evidence before the Judicial Registrar was to be treated as evidence before the Court on the review only with the consent of the parties. Notices for cross-examination of any deponent were required to be given not less than ten days prior to the hearing date.
On 26 July 1995 Judicial Registrar Fleming dismissed the stay application of the respondent. A notation accompanying the order of Judicial Registrar Fleming stated that:-
“$9,000 will be made payable to the respondent (sic) on or before 28 July 1995.”
The reference by Judicial Registrar Fleming to the “respondent” in the note rather than the “applicant” stems from the fact that the parties treated the review as a separate proceeding rather than as a matter arising in the s170EA application. See Andrews v Uniting Church (“Andrews”), Industrial Relations Court of Australia, DI 3 of 1995, 19 September 1995, Gray J (as yet unreported). His Honour said at 16 :-
“In my view, the nature of a review of a judicial registrar’s exercise of the power is such that an application for such a review cannot be regarded as a ‘proceeding’, for the purposes of s. 347 of the Act. It is an integral part of the proceeding which is commenced by application made under s. 170EA of the Act. It is properly made by notice of motion, which is to be treated in the same manner as a notice of motion seeking any other interlocutory order within the proceeding commenced by the application under s. 170EA.”
I respectfully agree with that passage in Gray J’s decision in Andrews.
MATERIAL BEFORE THE COURT ON THE REVIEW
The review proceeding was heard by the Court today. The applicant was not represented. He has not filed any notice requesting the presence of any deponent of any affidavit in support of the respondent for cross-examination. He has not given his consent to the use by the Court of the transcript of the evidence before the Judicial Registrar. The applicant did not ensure the presence in Court of deponents of affidavits filed on his behalf and whose presence was required by the respondent. In the circumstances the Court on the review cannot have regard to any of the affidavit material filed by the applicant in support of his application. The only evidentiary material before the Court are the following affidavits:-
1.The affidavit of Kevin Malcolm Brunning sworn 12 December 1994 (“the first Brunning affidavit”).
2.The affidavit of Keith Sydney McCawley, undated but filed on 12 December 1994 (“the McCawley affidavit”).
3.The affidavit of Stephen John McComish sworn on 13 July 1995 (“the McComish affidavit”)
4.The affidavit of Kevin Malcolm Brunning sworn 10 August 1995 (“the second Brunning affidavit”)
5.The affidavit of Michael David Coff sworn on 22 September 1995 (“the Coff affidavit”).
TIME WITHIN WHICH TO APPLY FOR A REVIEW
Section 377(1) of the Act provides that:-
“[Party to proceedings may apply to the Court for review] A party to proceedings may apply to the Court to review a Judicial Registrar’s exercise in the proceedings of a power delegated under section 376. An application must be made within the period prescribed by the Rules of Court or such further period as is allowed in accordance with the Rules.”
Order 74 rule 3 of the rules of the Court provides that:-
“Prescribed time in relation to review
For the purposes of section 377(1) of the Act, the time prescribed in relation to an application to review the exercise of a power by a Judicial Registrar is 21 days or such further time as is allowed by the Court or a Judge for special reasons upon application at any time.”
I am satisfied that there are special reasons which favour the Court extending the time within which the respondent is able to apply for the review by the Court of the exercise of power by the Judicial Registrar until 13 July 1995, the date of the making of the “application”. I decided this matter today as a preliminary point before proceeding to hear the review. My reason for so doing is that the respondent did not have a copy of the reasons for judgment of the Judicial Registrar until 27 June 1995 and was not, as the McComish affidavit shows, able to properly advise the respondent as to the appropriateness of a review until after that day. I reached an identical conclusion upon similar grounds in Ferry v Minister for Health, Western Australia, WI 0641R of 1994, Industrial Relations Court of Australia, 25 August 1995, (unreported), per Marshall J at 2.
THE FACTS
The evidence before the Court discloses the following material facts:-
1.On 24 March 1994 the applicant was employed by the respondent as a casual driver of a rear loader truck in the respondent’s waste disposal business.
2.The applicant was engaged by Mr Kevin Brunning, the Operations Manager of the respondent.
3.In late April 1994 the applicant became a full time employee of the respondent. He drove the third of three commercial front end loader trucks for the respondent.
4.On the applicant’s engagement in March 1994 and upon the change in his duties in April 1994, Mr Brunning was aware that the applicant was not a member of the Transport Workers’ Union of Australia (“TWU”).
5.On 6 May 1994, according to the first Brunning affidavit, the respondent decided, for commercial reasons, not to use a third commercial front end loader truck on the road.
6.The decision was made at a meeting between Mr Brunning and Mr Keith McCawley, the Managing Director of the Respondent.
7.The decision as to which front end loader driver would cease to be used on the road was left up to Mr Brunning.
8.On 12 May 1994 Mr Brunning decided that the applicant should be dismissed.
9.One of the other drivers, Mr Paul Honey, was not chosen to be terminated because he “had been employed by the Respondent for close to twelve months and had proved to be a very reliable operator” (paragraph 7 of the first Brunning affidavit).
10.Mr Honey and the other driver, a Mr David Martin, were physically stronger than the applicant and Mr Brunning slightly preferred their attitude to the respondent and its customers to the attitude of the applicant (paragraph 6(iii) of the second Brunning affidavit).
11.It was decided between Messrs Brunning and McCawley that the applicant would not be informed of the termination of his employment until notice of it was given to him.
12.At 5.30 p.m. on 12 May 1994 the applicant returned to the respondent’s depot after his day’s work. Mr Brunning was waiting for him. Mr Brunning said to him:
“as from tonight we’re standing your truck down so therefore, unfortunately, your services are no longer required. The company will give you one week’s pay in lieu. If you would like, you could work your final day, being tomorrow, in the depot.”
(see paragraph 8 of the first Brunning affidavit).
13.The applicant asked Mr Brunning:-
“Are you putting me off because I won’t join the union”
Mr Brunning replied “No”.
(see paragraph 8 of the second Brunning affidavit).
14.The respondent sold that part of its business that required the use of front end loader trucks on 1 August 1994.
(see paragraph 14 of the Coff affidavit).
THE JUDICIAL REGISTRAR’S REASONS
The Judicial Registrar effectively held that the applicant’s employment had been terminated as a result of a genuine redundancy situation but that the termination contravened the Act because the respondent’s “decision to terminate was made unilaterally” and hence the applicant was denied procedural fairness. The Judicial Registrar also said that:- “It cannot be denied that the non union membership of the applicant played a part in his dismissal.” The effect of the decision of the Judicial Registrar was as follows:-
1.A finding that s170DF(1)(c) had been breached by the respondent;
2.A finding that s170DE had been breached by the respondent because although it had terminated the applicant’s employment for a valid reason, i.e. a genuine redundancy situation, such reason was nevertheless in the circumstances harsh, unjust or unreasonable given the respondent’s failure to consult with the applicant about the redundancy situation.
3.A finding under s170EE(3) that $9,000.00 was an appropriate amount of compensation.
SECTION 170DF(1)(c)
The evidence before the Court shows that the decision of the respondent to terminate the employment of the applicant was not taken for a reason which included the reason that the applicant was not a member of the TWU. The respondent did not contravene s170DF in terminating the employment of the applicant. See paragraphs 12 to 14 inclusive under the heading above entitled “THE FACTS”.
SECTION 170DE(1)
The evidence before the Court also shows that the respondent had a valid reason for the termination of the employment of the applicant connected with the requirements of the respondent’s undertaking. The valid reason was that there was a genuine redundancy situation which required the termination of the employment of one front end loader driver.
SECTION 170DE(2)
Notwithstanding that the respondent had a valid reason to terminate the employment of the applicant such reason will nonetheless be taken not to be valid if, having regard to the employee’s capacity and the operational requirements of the employer’s undertaking the termination is harsh, unjust or unreasonable.
It is well established in this Court that a termination of an employee’s employment on redundancy grounds will be harsh, unjust or unreasonable where there is no prior consultation with an employee before that employee’s employment is terminated on redundancy grounds.
See Quality Bakers v Goulding, WI R142 of 1994, Industrial Relations Court of Australia, 26 June 1995, (unreported) per Beazley J at 16-21. See also Jones v Department of Energy and Minerals, VI 527 of 1994, Industrial Relations Court of Australia, 16 June 1995, (unreported) per Ryan J at 18-19.
In my view, it does not matter that the employer anticipates that such consultation may lead to the employee involved being unhappy. It also does not matter that there was a relatively short time frame between the decision to terminate and the actual termination. There must nonetheless be consultation with affected employees as soon as possible.
The lack of prior consultation with the applicant about his impending redundancy meant that he had no opportunity to seek to remain in employment with the respondent on some other basis or for it to reconsider its selection of him as the one to be dismissed. Such consultation may also have led to a process where the applicant was assisted by the respondent to gain employment elsewhere. It does not matter that it may have proved unlikely that any of the abovementioned scenarios would have eventuated. The important point was that the applicant was denied the opportunity of having them explored.
Paragraph 49 of the Coff affidavit (which was sworn in the United Kingdom) contains the following opinion:-
“I believe it is remarkable to suggest as has been suggested by Judicial Registrar Tomlinson that the management of a business are obliged to discuss their financial situation with employees. It is my opinion the only obligation the Applicant had in this regard is to the shareholders and the Taxation authorities.”
In Australia, at least in the federal jurisdiction, employees are entitled to be accorded some dignity and not treated as mere numbers on a piece of paper. As Murphy J said in Federated Clerks’ Union v Victorian Employers’ Federation, (“FCU”) (1984) 154 CLR 472, 493-494:
“In the history of industrial law, many matters which were within the exclusive managerial prerogative of employers have been brought within the scope of industrial regulation, by the legislature or industrial tribunals. Sometimes the former prerogative has been eliminated, for example by health and safety laws which prohibit certain practices. Sometimes it has been restricted, for example by minimum wage provisions. Various privileges which were once exclusive to the employer are now shared with employees (or their organizations).
During this generation, there has been an accelerating trend towards concentration of economic power in fewer and fewer persons. The growth of the great national corporations, their mergers and expansion into transnationals have transformed the methods of production, distribution and exchange. The power of the greatest corporations transcends that of most governments. A reaction to the submergence of the individual worker is the demand by organized workers for some share in deciding what work is to be done, by whom and when, where, and how it is to be done. The thrust of the demand is not merely the improvement in existing pay and conditions. It extends to the protection of jobs, for themselves and other workers, but is more than that; it is a demand to be treated as more than wage-hands - to be treated as men and women who should be informed about decisions which might materially affect their future, and to be consulted on them. It is a demand to be emancipated from the industrial serfdom which will otherwise be produced by the domination of the corporations; a demand to be treated with respect and dignity.”
See also Wilson J in FCU at 502 (.1) where His Honour said:-
“... Consultation between employers and employees, preceded by the distribution of adequate information is not only sensible but essential if commerce and industry are to meet the challenge of progress in a spirit of harmony and with some regard for human dignity.”
See also Re Cram; ex parte N.S.W. Colliery Proprietors’ Association Ltd (“Cram”) (1987) 163 CLR 117, 135 where the Full Court of the High Court in a joint judgment said:
“... No doubt our traditional system of industrial conciliation and arbitration has itself contributed to a growing recognition that management and labour have a mutual interest in many aspects of the operation of a business enterprise. Many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee and constituting an “industrial matter”.
A dispute about the level of manning is a good example. It has a direct impact on the work to be done by employees; it affects the volume of work to be performed by each employee and the conditions in which he performs his work. So also with the mode of recruitment of the workforce. The competence and reliability of the workforce has a direct impact on the conditions of work, notably as they relate to occupational health and observance of safety standards. Employees, as well as management, have a legitimate interest in both these matters.”
In the circumstances I find that the respondent has contravened s170DE of the Act by its failure to consult the applicant about his impending dismissal prior to the applicant’s employment being terminated on redundancy grounds.
I disagree with the decision of Sharkey P. of the Western Australian Industrial Relations Commission in Newcrest Mining Limited v AWU, West Australian Branch (“Newcrest”) (1992) 47 IR 189, 201 where His Honour albeit reluctantly was of the view that a redundancy would not be considered unfair alone as a result of the failure of the employer to consult the dismissed employee about the impending redundancies. The contrary view expressed in the decision of Corkrey v General Motors Holden Limited (“Corkrey”) (1986) 55 SAIR 531 is to be preferred. Corkrey was applied by Beazley J in Quality Bakers and in my view correctly so. The decision in Newcrest is also entirely inconsistent with the thrust of the decisions of the High Court of Australia in FCU and Cram.
REMEDY
The evidence before the Court is that the applicant became gainfully employed (according to the Coff affidavit) two weeks after the termination of his employment. He has since departed the State of Western Australia and according to information provided to the Registry by his former solicitors he now resides in South Australia. He has not appeared before me to seek reinstatement. In the circumstances I do not believe that reinstatement is practicable. The appropriate starting point on the question of remedy is the payment of compensation for two weeks wages. In my view there is no obligation on an employee dismissed in contravention of Division 3 of Part VIA of the Act to mitigate her or his loss. I do not therefore consider whether the applicant should have tried to find other employment within the two week period referred to above. See Ferry v Minister for Health, Western Australia, Industrial Relations Court of Australia WI 0641R of 1994, 25 August 1995, Marshall J, as yet unreported at 14 and AMIEU v Sunland Enterprises Pty Ltd (1988) 81 ALR 213, 222.
The appropriate amount of compensation in this case is based upon a figure equivalent to twice the gross average weekly wage of the applicant less the amount he was paid in lieu of notice. I was informed by counsel for the respondent that the relevant average weekly wage was $645.34. Further, counsel for the respondent informed the Court that the payment in lieu of notice was $452.70. Accordingly, the compensation payable to the applicant should be $837.98.
The applicant has already been paid a sum of $9,000.00 by the respondent as a result of Judicial Registrar Fleming’s refusal to grant the respondent a stay of the order of Judicial Registrar Tomlinson. Therefore, the Court will order that the applicant shall pay to the respondent the sum of $8,162.02.
In the circumstances the Court will make the following orders:-
1.The order of the Court constituted by Judicial Registrar Tomlinson made on 5 May 1995 is set aside.
2.It is declared that the termination of the employment of the applicant by the respondent contravened s170DE Industrial Relations Act 1988.
3.The applicant shall pay to the respondent on or before 13 October 1995 the sum of $8162.02.
I certify that this and the preceding 15 pages are a true copy of the Reasons for Judgment herein of His Honour Justice Marshall.
Associate:
Date: 29 September 1995
Counsel for the Respondent: Mr S J McComish
Solicitor for the Respondent: Kott Gunning
Date of hearing: 29 September 1995
Date of judgment: 29 September 1995
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