Dennis Andison v Woolworths Limited
[1995] IRCA 205
•31 March 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH DISTRICT REGISTRY
No NI 0552 of 1994
BETWEEN:
Andison
Applicant
AND:
Woolworths Limited
Respondent
BEFORE: MCILWAINE JR
PLACE: SYDNEY
HEARING DATE:
DATE ORDERS MADE: 31 March 1995
REASONS FOR JUDGEMENT
Mr Dennis Andison, the applicant in these proceedings, relies on an application under section 170EA of the Industrial Relations Act 1988, in respect of the termination of his employment by the employer, who is listed as Woolworths (NSW) Limited but is "Woolworths Limited". There is also evidence that he was employed by a related or subsidiary company trading as Woolstar Limited. The applicant claims:
(a) In order declaring termination of the employer's employment of the employee to have contravened division 3 of part VIA of the Industrial Relations Act 1988;
(b) An order requiring the respondent to reinstate the employee in employment; and
(c) An order that the respondent pay compensation to the employee;
Such other order or orders as will put the employee in the same position as nearly as can be done as if the employment of the employee by the respondent had not been terminated: See section 170EE of the act.
That application was filed in the Registry on 8 July 1994 and dated the same day.
I have a certificate dated 13 October 1994 issued by Commissioner Palmer of the Australian Industrial Relations Commission. That certificate certifies that the commission has been unable to settle this matter by conciliation. I am satisfied the matter is properly before the court.
This matter was heard by me on 14 November 1994, 18 November 1994 and 15 December 1994. Those days basically completed the evidence in the proceedings, and the matter was set down for further hearing before me on Friday, 16 December, to ensure that the respondent had every opportunity to make any submissions which were necessary on its behalf to me in these proceedings.
According to an affidavit sworn on 2nd December 1994 by Lisa Murphy Industrial Relations Officer, on behalf of the respondent, Dennis Andison commenced his employment with Woolworths on 25 May 1994 and was terminated from the company on 24 June 1994. He was:
"Employed on the rolling stock-take team and his duties on that team would involve going from store to store carrying out the exercise of stocktaking."
Paragraph 4 of the affidavit sworn on 2 December 1994 by Lisa Murphy, sets out the hours which the company says Mr Andison worked, and I extract that information under the headings Date Rostered and Shift Length as follows:
Date Rostered Shift Length
25 May '94 6 am to 4 pm 9.5 hours;
6 June '94 6 am to 4 pm 9.5 hours;
7 June '94 6 am to 3 30 pm 8.5 hours;
8 June '94 6 am to 4.30 pm 10 hours;
14 June '94 6 am to 1 pm 7 hours;
15 June '94 6 am to 3.30 pm 9 hours;
20 June '94 6 am to 4 pm 9.5 hours;
21 June '94 6 am to 3 pm 8.5 hours, and
22 June, '94 6 am to 1 pm 7 hours.
The applicant did not challenge this evidence.
What is immediately apparent from the record of hours worked by Mr Andison is that he commenced work at 6 am in the morning and the end of his shift varied from anywhere between 1 pm to 4 pm on the nine shifts, as the company says that he worked. It is immediately apparent that Mr Andison had a regular and systematic basis for the terms of his employment, at least in relation to the starting time and the apparent regularity of those shifts.
I think it is fair to say at the outset that Mr Andison would be the first to acknowledge that if it were not for the roster for the "July period to December period", exhibit 6 in these proceedings, he would have no right of recourse to the court.
I might mention, to clarify the position taken by the respondent, that at the time Mr Ritchie initially raised this issue in court he did so on the basis that he was prepared only for a jurisdictional argument in terms that Regulation 30B, as it then was, of the Industrial Relations Regulations excluded Mr Andison from any recourse to this court.
There was some discussion between us on this point at an early stage. However, I indicated that I was not able to determine that issue until I had heard the facts surrounding the termination, and as a consequence Mr Ritchie then sought to call further evidence.
In his evidence Mr Andison advised me that he lived at Glendenning and he described himself as an assistant on the inventory team. He admitted that he was a casual in the sense that in his answer to an earlier question put by me he said, "Well, I was employed to assist on the inventory team on the stocktake team as a casual." And he also indicated that he was now a casual employee currently in employment as a casual general hand at the Penrith Landfill.
It is conceded by the applicant that an award of the Australian Industrial Commission applies to his employment being NSW/ACT Woolworths Supermarket Enterprise Award 1993. Although the award that was tendered by the company appears to be a July 1994 reprint.
He gave evidence that he commenced employment with the Woolworths rolling stocktake team at their Marayong store on 25 May 1994 and that his employment was verbally terminated on 24 June 1994. On the afternoon the evidence broadly states - and I do not think there is much conflict about this - that on the afternoon of 24 June 1994, two days after his last workday attendance at approximately 2.30 a telephone call to his home was made by Coral Bax, who is or was a friend of Mrs Andison. Ms Coral Bax was the Inventory Crew Manager.
As Mr Andison was absent Coral Bax, at the request, I am sure of Mrs Andison, informed her that Mr Andison's services were no longer required. The evidence then is somewhat contradictory. However, I accept Mr Andison's explanation that he rang Ms Bax to ascertain what the position was regarding his employment. I should deal with this aspect of the evidence at this stage. As I understand the evidence, there was a 20 minute telephone call in which the issues surrounding the continued employment of Mr Andison were discussed and he was advised that he was no longer required to work for Woolworths.
Whether it was a 20 minute conversation or longer, it is virtually impossible for me sitting here with all the hindsight that one might have to determine accurately what was discussed. However, one factor that I take account of is the concession made by Ms Bax that at some stage Mr Andison asked for "a round table conference" with the company in relation to his continued employment. The events as they turned out indicate that his request for a round table conference was never agreed to by the company and nothing further was done about it.
I also accept Mr Andison's evidence that he asked Coral Bax if he could come to her office and discuss the issue or alternatively have something in writing that he was dismissed which set out the reason for his dismissal. I accept his evidence - and I do not think there is any evidence to the contrary from the company that the only information that he received was a letter dated 11 July 1994, exhibit number 11, in these proceedings written by Coral Bax, the Inventory Crew Manager, which states as follows:
"This is to certify that Dennis Andison was in our employ from 25 May 1994 until 26 June 1994. Whilst in our employ Dennis held a position on our computerised rolling stocktake team. His duties involved counting and scanning stock in our supermarkets. I found Dennis to be honest, courteous and a most reliable person. All tasks he performed were of a high standard."
I accept that Ms Bax may have written those words of sentiment or was motivated by her friendship with Mrs Andison, and that the letter was issued without the authority of the company. Nevertheless, I accept the evidence of Mr Andison that he did ask for a round table conference and he did ask for information in writing to be conveyed to him and this was not done, apart from exhibit 6.
One matter which is of more concern is that as a result of the dismissal in relation to Woolworths he ceased to obtain any further offer of casual work at "Woolstar", another division of Woolworths Limited, in which he states that he had worked for four of the five previous Saturday evenings. Now, I accept the evidence which was given by the company that this was sometimes seen as "top up", work for employees but in these matters the company has an onus to prove that its actions were in accordance with the Act. The company has not sought to bring forward to me any evidence whatsoever that any work he did at "Woolstar" was questioned in any way.
The key point was Mr Andison's evidence that:
He was issued by a staff member, the respondent, a location store calendar roster for the period of six months from 27 June 1994 to 7 December 1994.
And he then goes on to explain that:
Standard procedure as explained to me was to arrive at work locations as per the roster at 6 am start, with finishing times being determined by store sales and work load.
As I have indicated earlier the evidence from the company as to the starting and finishing times confirms Mr Andison's evidence in this regard. There was also a number of other witnesses who were called on behalf of the respondent, and in answer to questions confirmed that there was a standard starting time and the finishing times varied.
At this stage it is appropriate to note that the company has submitted that the provisions of the award would not allow this type of arrangement to occur. However, in practice, in this particular part of the company's operation it was occurring, and accordingly I do accept that the document, which is exhibit 6, was issued by the company and was more than just an "operational" document.
Regulation 30B uses the word "engaged", and based on the evidence of all the respondents, it appears that upon receiving this roster they regarded themselves as being engaged to attend for work on the specified dates at 6.00 am, unless they were advised otherwise.
There are two general exceptions and here the evidence is without conflict, that is for certain stores outside the Sydney metropolitan area, for example, Mt Hutton or Cardiff, the employees had a right not to accept the engagement on the basis that they did not want to have an overnight stay. There were probably even some other instances where by agreement between the parties, ie, for reasons of exigency the company did not need so many persons to carry out the stocktake of a particular store the number of employees needed to be reduced.
This readily appears from the evidence tendered by the company in its affidavits, and by the information given, or volunteered by the witnesses for the applicant and the respondent. In the circumstances, I find that Mr Andison was engaged by the company from 25 May 1994 to 7 December 1994, on a regular and systematic basis.
On the second day of hearing the company brought a number of witnesses in to give evidence. It appeared that the witnesses made a series of allegations in relation to Mr Andison. The difficulty for the company in relation to this evidence is that none of these allegations were ever put to Mr Andison in a proper manner. I suggest a proper manner should include having a person for the Employers Organisations available if necessary, and at least a union representative or other independent person nominated by the employee when these issues were to be discussed.
Some of the witnesses raised quite serious allegations. One, in particular, Ms Elizabeth Brown, suggested that there were comments made by Mr Andison with sexual overtones, in that he referred to her as wearing shorts. However, on cross-examination Ms Brown admitted that other employees had made similar reference to this fact, and no complaint had ever been lodged by her, possibly out of respect for or deference to Mrs Andison. I note that there is also in the evidence a reference to the fact that there was some suggestion made by a person to Mrs Andison that she might wear shorts, which would similarly improve her job prospects. It seems to me that this was an issue that required proper investigation. No doubt, Woolworths has the appropriate policies in relation to sexual harassment in force, but it seems that from the evidence and the concession made by Ms Brown, in her evidence, that the policies might be there but their implementation in the workforce are not succeeding.
There are a number of other employees who gave evidence, some I suppose, at the best, I place it, as neutral to Mr Andison, and some as, I would accept, probably not adverse to him but certainly not favourable to his continued employment with the company. I have therefore determined that it would be impracticable to reinstate Mr Andison in his former position. And in doing that I am conscious of the fact that if I were to reinstate him, it may well mean the necessity for the company to pay to him all of his entitlements which he has lost between June 1994 and the date of reinstatement.
However, I do make a finding that it is impracticable, having regard to the fact that Mrs Andison no longer works with the company. Mr Andison, as I understand it, has obtained alternative employment. In addition I have also taken account of the fact that some of the witnesses, suggest it might cause more difficulties if he were to come back into this operation, which no doubt requires a degree of co-operation between all employees.
There are a number of practical issues which were brought forward by the company in the hearing that were never previously put to Mr Andison. I do not place much weight on them for that reason.
There was a matter of more serious nature, which was the altercation or confrontation which occurred between Mr Taylor and Mr Andison in the stockroom.
I have had the opportunity of observing both men in the witness box. Ms Julie Beasley was the witness who observed the incidents. At the time Mrs Andison was also present. If the incident was as stressful, traumatic extraordinary , I suppose, would be the most neutral word to use, for Mr Taylor, as he sought to put forward in the his evidence, then I would have assumed that Ms Beasley would have felt the need to intervene. Ms Beasley could not hear what was said but described it as "obviously an argument".
Nevertheless, I accept that Mr Andison raised his voice. In regard to that finding I have taken account of the evidence that at some stage Mr Andison had been involved in an armed hold-up, when he was the victim, and that it may well be that he is suffering from some stress, as a result of that incident.
The other factor that I take into account in not regarding it as serious misconduct which would enable the company to immediately terminate his employment, is the fact that it was not conducted out in front of the public. Moreover it is my view that Mr Taylor could have handled it more appropriately if he had arranged for an office to be made available for the discussion.
I accept that he did not change the rosters, which apparently was what the argument was about, so that Mr Andison and Mrs Andison were on different shifts. There may have been some support given by him for the change, but it was done by the supervisors at a lower level.
He may not have been aware of the specifics of the split-up, and may not have been conscious of the need to preserve his original undertaking. I do not think it was denied, that he had given to Mrs Andison a commitment, that they could work together. There are other issues which I do not need to consider today. However, the company would be well aware of the suggestion that the company could be acting in a discriminating way if it had a policy that married people cannot, or ought not work together. I invite the company's attention to the provisions of the Industrial Relations Act, 1988 in particular section 170DF(1)(f),
I have carefully considered all of the submissions that Mr Ritchie put to me on Friday 16 December 1994. I have also considered the additional correspondence that was sent to me by way of submission by both parties. I declare that the company had no valid reason for terminating the employment of Mr Andison in the circumstances.
As has been outlined by me, I also find that the company contravened section 170 DC (a), in that when a round table conference was requested by Mr Andison, that request was not acted upon by the respondent.
I now turn to the question upon which the company was probably on strongest ground, and that is the suggestion that the section 30B(1)(d) Industrial Relations Regulations applied. I understand that there has been a change in those regulations. The regulation which was effective at the time is in the following form - it is convenient to set it out. Section 30B(1):
[Excluded Employees]
"For the purposes of section 170CC of the Act, the following employees are excluded from the operation of subdivisions B, C, D and E, of Division 3 of part VIA of the act:
(a) subject to sub-regulation (2), employees engaged under a contract of employment for a specified period of time;
(b)employees engaged under a contract of employment for a specified task;
(c)employees serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires,
(i) is determined in advance and,
(ii) is reasonable having regard to the nature and circumstances of the employment;
(d)casual employees engaged for a short period within the meaning of sub-regulation (3).
30B(2)[(Contract employees for a specified time] Paragraph (1)(a) does not apply to an employee engaged under a contract of a kind referred to in that paragraph, if a main purpose of the employees engagement under the contract of that kind is to avoid the employers obligations under subdivision B, C, D or E of Division 3 of part 6A of the Act.
30B(3)[(Casual employees engaged for a short period] For the purpose of paragraph (1)(d), a casual employ is taken to be engaged for a short period, unless:
(a) the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months; and
(b) the employee, has, or but for a decision by the employer to terminate the employee's employment, would have had a reasonable expectation of continuing employment by the employer.
30B(4) [Casual employees exclude] For the purposes of section 170CC of the Act, casual employee (not being casual employees of the kind referred to in paragraph(1)(d)) are excluded for the operations of section 170DB, 170DD and 170EF and subdivisions D and E and Division 3 of part VI of the act."
The history of that regulation is that it commenced on 30 March 1994. In this matter, the evidence from Mr Taylor is that Mr Andison approached him and he interviewed him in the store. There apparently was never a letter issued by the company to confirm his engagement, so the only evidence I have before me is from Mr Andison and Mr Taylor.
I invite the company's attention to the observations made by the Chief Justice in the case of Ian Samuel McGregor Nicholson and Heaven and Earth Gallery Pty Limited 1994 126 ALR 233, where in discussing the suggestion of - where there was a suggestion of a probationary agreement, that the submission was made to the Chief Justice that there should be some documentary evidence of a probationary agreement. And I quote from the Chief Justice's observations:
"I have some sympathy for this submission. I could have been easy for Mr Holt to send Mr Nicholson a short letter confirming the terms of his appointment, including the fact that it was subject to a two month probationary period. Where such an easy step is omitted, it is tempting for a judge to say that if employers do not bother to put the terms of the agreement in writing, they ought not to expect a court to accept that there was an oral agreement for a probationary period. However, lawyers have been lamenting that commercial people often fail to put agreements in writing since time immemorial, to little effect.
Notwithstanding the failure of parties to take this obvious step, courts have to take the evidence as they find it and endeavour to divine the truth. I must resist Mr Christie's invitation to treat the absence of writing as a reason for preferring his case on this issue. However the submission provokes me to emphasise the desirability of employers confirming, by contemporaneous letter, the terms of engagement of employees. It is particularly desirable that they do this in cases where an employee is engaged on one of the bases referred to in regulation 30B - that is, under a contract of employment for a specified period of time, or for a specified task under a contract providing for probationary or qualifying period of employment, or as a casual employee engaged for a short period of time.
If the employment of such an employee is terminated and claim is brought under section 170EA of the act, employers may be assured that the judge or judicial registrar who hears the case will earnestly endeavour to determine the true terms of employment. But evidentiary conflicts turning on different versions of conversations are notoriously difficult to resolve. With the best will in the world, the court may wrongly find against the employer's claim that there was an oral arrangement making the contract one to which regulation 30B applies.
By contrast, a contemporaneous letter, clearly specifying the terms of employment will probably ensure the employer's success in defending the claim. Indeed, its mere existence may persuade the applicant not to bring or persist with a claim. This, itself, is a matter of moment."
I do not think I need to comment any further than that. In this case, it is quite clear to me that Mr Andison was engaged by the company. In the Macquarie Dictionary "engaged" is defined as:
busy or occupied; involved.
Under engagement; pledged
Mr Andison was to be "occupied" from the evidence which I have from the company on and from 25 May 1994 to December 1994. At some stage during those nine shifts, he received the roster, exhibit "6" This document to my mind falls fairly and squarely within the provisions of regulation 30B, which I have quoted, in that he was engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months. More over, if he had not been terminated he would have had a reasonable expectation of continuing employment.
Now, I note the very strong submission which is made by the company, that I should interpret the phrase, that he has been employed for a period of at least six months at the 24th June 1994. I have carefully considered all the submissions. I have looked at the Acts Interpretation Act 1901 section 15AB(2)(f) of the Act dealing with the use of parliamentary material, which I was very properly referred to by Mr Ritchie. However in section 15AB(2)(e) there is authority for condiser "any treaty or other international agreement that is referred to in the Act..
It is quite clear that the legislation was introduced to prevent the termination of a person's employment without a valid reason and to give employee the opportunity of responding to any allegations made against him. Even on the respondent's own evidence, Mr Andison requested that opportunity and it was never given to him. In those circumstances, I find that the company did not have a valid reason for terminating his employment, under section 170DE and it contravened section 170DC in that it did not afford him a proper opportunity to defend himself.
I have already indicated that I find the circumstances of the termination to be such that it would be impracticable to order the reinstatement of Mr Andison.
On the question of compensation, I have taken account of the fact that, as the company points out, this is a short-term employment Mr Andison was only employed for nine shifts. I have taken account of the fact that he volunteered evidence that he was in other employment. I have also considered the fact that, had I been minded to reinstate him to the position - that he may well have been entitled to the amount of money which has been lost in the time since his termination in June until today. I have also taken account of the fact that the period from 25 May when he was first employed to 7 December is a period of six months and, I think, about 12 days, and that he would have had an expectation at least of some possibly 60 days further employment with the stocktake team.
As I have indicated earlier in my judgment, I consider the fact that he was dismissed or not offered further work from "Woolstar" as being something that should not have happened, because there was no allegation and there are no allegations before me now as to any of his conduct or performance at that particular store. Notwithstanding the evidence of the company that the work at the Woolstar is offered as a top-up operation. I consider, taking account of all of those circumstances that is appropriate that an amount of compensation of $2500 be paid.
I declare:
That the company is in contravention of section 170DC of the Industrial Relations Act 1990. It is also in contravention of section 170DE(1) of that Act;
I find that it is impracticable to reinstate Mr Andison to his former position or to another position in the company.
I order:
The employer pay compensation in the amount of $2500 to the applicant within 14 days.
I certify that this and the preceding nine (9) pages are a true copy of the reason for judgement of Judicial Registrar McIlwaine.
Associate: C. Sternberg
Dated: 23 May 1995
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