Ellison v ICM Farm Products Pty Ltd
[1997] IRCA 226
•18 July 1997
DECISION NO:226/97
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
INDUSTRIAL LAW - termination of employment - whether termination at the initiative of the employer
Workplace Relations Act 1996 ss.170DE, 170DF, 170EA
CASES:
Slifka v JW Sanders Pty Ltd (1995) 67 IR 316
Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200
Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154
Jones v Dunkel (1959) 101 CLR 298
ELLISON -v- ICM FARM PRODUCTS PTY LTD
No. VI-1726 of 1996
Ryan JR
Melbourne (heard in Wodonga)
18 July 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-1726 of 1996
B E T W E E N :
KEVIN ELLISON
Applicant
AND
ICM FARM PRODUCTS PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 18 July 1997
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-1726 of 1996
B E T W E E N :
KEVIN ELLISON
Applicant
AND
ICM FARM PRODUCTS PTY LTD
trading as YARRAWONGA ABATTOIRS
Respondent
Ryan JR
Melbourne
18 July 1997
REASONS FOR JUDGMENT
THE CLAIM
The Applicant seeks compensation in a claim of unlawful termination of employment.
The Respondent denies there was a termination of the employment at the initiative of the employer. I agree with Counsel for the Applicant that this is a case addressing and answering a rather common question. Did he jump or was he pushed? Slifka v JW Sanders Pty Ltd (1995) 67 IR 316 at 317.
The easiest, but not the shortest, way to answer the question is to examine the background to events which occurred on Wednesday 15 May 1996, Thursday 16 May and Monday 20 May and the conflict of the evidence given as to those events.
WORK IN THE BONING ROOM
The Applicant was employed by the Respondent as a casual labourer in the boning room at the Yarrawonga Abattoirs from 12 July 1993 to March 1995. In March 1995 the Applicant was required to undertake a medical examination which revealed a hernia. The hernia was surgically repaired in June 1995. The Applicant was off work for eight weeks and returned to light duties.
Initially, the Applicant was performing light duties in the boning room. He described the duties as “making boxes, some computer work, driving a forklift”.
TRANSFER TO THE KILL FLOOR
In December 1995 the Applicant was transferred to light duties on the kill floor. He described his duties there as “trimming skirt steak and tails and handling of offal”.
On 28 December 1995 the Applicant negotiated and signed an agreement with the manager of the abattoirs, William Neil Hooper, and his supervisor, Douglas Pitches. The agreement is Exhibit A1 and reads:
“YARRAWONGA ABATTOIR
28/12/95
Kevin ELLISON EMPLOYED AS A CASUAL LABOURER
RMB 2140
Telford Rd
TELFORD
3730
THIS AGREEMENT STATES THAT
WHEN CLEARED BY HIS DOCTOR TO RETURN TO WORK ON NORMAL DUTIES, KEVIN NOEL ELLISON WILL BE ABLE TO RETURN TO HIS DUTIES AS A CASUAL LABOURER IN THE BONING ROOM, WHERE HIS SUPERVISOR WILL USE HIM AS REQUIRED, AT TIMES AND PLACES CONVENIENT TO THE BONING ROOM WORK PROCESS.
SIGNED William Hooper MANAGER
Douglas Pitches SUPERVISOR
K N Ellison EMPLOYEE”
In March 1996 the Applicant had a second operation for hernia repair. He states that when he returned, still on light duties, the attitude of staff on the kill floor was “a bit negative”. When asked to be more specific and describe the conversations with the kill room staff he said (T17)
“such as, you know, you won’t have a full-time (job) ...and that...in the kill floor.....that I should be back in the boning room....so if I’m not going to work in the boning room I won’t be working in the kill floor”
On 14 May 1996 the Applicant received a medical certificate which cleared him as fit for normal duties.
On 15 May he presented the certificate to his supervisor, Mr Pitches.
This is the last day on which the Applicant worked with the Respondent. There is some dispute as to what occurred on 15 and 16 and 20 May. Set out below is the relevant evidence of the Applicant, the Manager of the abattoirs, Mr Hooper, and the Respondent’s Health and Safety Officer, Michael Dunstan, and a boner and union delegate in the boning room, Peter Ronald Gissing.
WEDNESDAY 15 MAY 1996
The Applicant states that once he presented the medical certificate to Mr Pitches he asked whether he “could....resume full-time duty in the boning room”. Mr Pitches told him “that there wasn’t any work at this stage in the boning room, just to continue on the kill floor at this stage”.
The Applicant stated that he worked for the rest of the day on the kill floor and had a conversation with Mr Hooper. The Applicant’s evidence of this conversation appears in the following exchange with his Counsel (at T20 and 21).
Counsel: What did Mr Hooper say to you?
Applicant:That there wasn’t any work available in the boning room at this stage because they have got enough full-time and casuals there.
Counsel:What did you say?
Applicant:I said, “well, I was promised a full-time job in there, shouldn’t I be put in there”, and he said, as I said, there is - you know, he had sufficient workers in there. Then he stated that if there was any work in the kill floor would I be interested in that.
Counsel:And what did you say?
Applicant:I said “not really, I would rather my job in the boning room” like I was promised even in the - as the letter specified.
Counsel:Did you tell Mr Hooper about the letter?
Applicant:Yes I did
Counsel:And what did he say?
Applicant:He said, well, I am not sure what his response was to that, I can’t remember
CounselAnd what happened at the end of the conversation?
Applicant:I was just left in the understanding that if - I either accept work in the kill floor or there will be no work.
The Applicant also described the conversation or conversations with Mr Hooper in cross-examination as follows:
Counsel:If I can take you to the events of 15 May, is it not true that you approached Mr Hooper about being fit to resume your normal duties?
Applicant:Yes
Counsel:And then you asked him what happens from here?
Applicant:I was later on confronted with him, he confronted me later on, yes.
Counsel:Well you had two discussions, did you not, with Mr Hooper on that day?
Applicant:Yes
Counsel:You had one in the boning room?
Applicant:Yes
Counsel:And one in or outside his office?
Applicant:Yes
Counsel:And he approached you on the...kill floor, and then when he was there you asked him what happens from here?
Applicant:Yes
Counsel:And he then told you that you would return to work as a casual labourer?
Applicant:He offered me employment as a casual labourer on the kill floor.
Counsel:And then you asked Mr Hooper “what, are you going to give me the arse?”
Applicant:I asked him “can’t I be placed in the boning room?” that is what the agreement says that I should go back into the boning room.
Counsel:And did you ask Mr Hooper whether he was terminating your employment?
Applicant:Yes, I did.
Counsel:And what did Mr Hooper say?
Applicant:He said no, he was just offering me...work on the kill floor.
Counsel:So he was telling you that he would keep you on as a casual labourer on the kill floor?
Applicant:Yes
Counsel:And that conversation became quite heated did it not?
Applicant:Not really, no.
Counsel:And then you spoke again with Mr Hooper later that day outside his office?
Applicant:Yes.
Counsel:And the conversation was a similar conversation?
Applicant:Similar, yes.
Counsel:What did you say?
Applicant:“What is happening tomorrow.”
Counsel:And what did Mr Hooper say?
Applicant:Nothing, at this stage, “we will call you”, something to that effect, I can’t quite recall the exact conversation.
Mr Hooper’s evidence of the events can be summarised (T54 and 55) as follows:
“On 15 May 1996 Mr Ellison was on alternative duties on the kill floor. I went to him to say good day to him and I said, ‘how did you go with your medical examination?’ and he said that he had been cleared to start on normal duties. I then told him that if that is the case well he would go to a casual status as he was before the injury. Well, he got pretty upset about it and he said to me, you know, “what are you just going to give me the arse?” and I said “well, no, I’m not”. I said, “but look, come and see me after work and we’ll discuss whatever concerns you have”.
He was just upset in the way he was, you know, he thought I was going to give him the flick, you know. I was going to, you know, dismiss him or whatever, but I said, “that’s not the case...you can come back on a casual basis in the boning room”.
He came in to see me after he finished work. I told him exactly what I told him on the kill floor that he could come back on a casual basis the way he had been before his injury and he seemed pretty happy about that. Well, he wasn’t upset, I should say, like he was on the kill floor that morning.”
Mr Hooper was asked in evidence-in-chief whether he required the Applicant’s services on 16 or 17 May. He replied (T55):
“No, I did not. There was one casual required in the boning room on Thursday and Friday but that had been arranged on the Monday which was common practice when we knew there was going to be people away.”
Mr Hooper also gave the following evidence in cross-examination.
Counsel:During the time Mr Ellison was on light duties you described going to see him on 15 May and asking him how his medical examination went.
Hooper:Yes
Counsel:And he said he had been cleared for normal duties?
Hooper:Yes
Counsel:And you told my learned friend that you had said to him that if that is so then “you can come back on casual status?”
Hooper:That is right, in the boning room.
Counsel:So you definitely added the words “in the boning room” did you?
Hooper:Yes
Counsel:Well, it is the case, is it not, that you told Mr Ellison on that occasion “there is no work in the boning room but you can come back as a casual on the kill floor?”
Hooper:No, that’s right. I knew Kevin didn’t want to work on the kill floor and I knew he wanted to go back to the boning room, that is why I said, “you will go back on the same status as he was before his injury”.
Counsel:And by that you meant a casual in the boning room?
Hooper:A casual in the boning room, yes.
Counsel:And was there work available in the boning room?
Hooper:I mean, we didn’t know exactly when there was work going to be there. I mean it was - we used casuals as needed and he would be just one of the casuals.
THURSDAY 16 MAY 1996
The Applicant’s evidence can be summarised as follows (T21 and 22):
“I went back to work on 16 May. I was expecting to work either in the kill floor or the boning room, anywhere. I confronted Mr Hooper again and said was there any work. I was told that there wasn’t and that they would call me. I went to the change rooms first. A couple of guys in there, I can’t remember who now, said that they didn’t think I was working today so I went over to see Mr Hooper and said, “is there any work for me today?” I was told, no, but that if there was some work in the kill floor that I would be phoned. I went home. I never received any more phone calls for work. I assumed that I would be out of work, paying off my house, I needed money to live on so....I started chasing up unemployment benefits, a Separation Certificate was required.
Mr Dunstan has given evidence of his involvement in events on 16 May. The following is extracted from transcript (T76-78):
“I was present at work on 16 May. I was approached by an employee. The employee said that he wasn’t going to take what Kevin had said. That something should be done about it. Kevin had said to this employee that if he didn’t get his job back that he “would make Port Arthur look like a picnic”. I sought out the manager of the works and told him the situation.”
In cross-examination (T78) Mr Dunstan indicated that the employee who had approached him was Wayne Lowrie, that the manager he had approached was Mr Hooper and that he had not given a statement to the police about the conversation (i.e. the conversation with Lowrie in which he reported the alleged reference by the Applicant to Port Arthur).
Mr Gissing’s evidence in respect of 16 May appears in the following extract from transcript (T79-82):
“I recall a discussion on 16 May 1996 between a number of employees and Mr Ellison. Kevin was having a discussion with a few of the other employees there about a permanent position in the company...and sort of mentioned that it would be unlikely that Kevin would probably get full-time employment because he was a casual. I stated that to Kevin. The discussion went on, and whereas Kevin turned around and said “that if he didn’t receive a full-time position in the company he would make Port Arthur look like a picnic”. Well, I felt there was no further sense in talking to Kevin on the subject and I went back over to the boning room to proceed to work and explain to the other blokes that I work with what Kevin had said.
The conversation was actually between Mr Ellison and Mr Lowrie. I was also present in the room and heard the conversation as well. I voiced my opinion on it as well being a union delegate for the boning room. Kevin had spoken to me on several occasions about it and I have discussed it with the union and they sort of said “well he was casual and that’s it”.
I did not approach Mr Dunstan. I didn’t think it was up to Dick and, as far as I knew, Wayne Lowrie may have already reported it. I had no idea. It would have been brought up, no doubt but I did not plan to approach someone like Mr Hooper or Mr Pitches and report it myself. It’s not up to me to tell the police about it. I thought management would handle that sort of thing. (The police) rung up my place that evening and asked if I was prepared to make a statement to what I’d heard. I said to the police I would and they said they would get back to me. They never did get back to me. They said they would have a word with Kevin and “work” about it. Since then I have not had discussions with Mr Hooper or Mr Pitches about what Kevin said on that day...not in any great length or form ...only just to make a statement to what I’d heard...well..”work” asked me would I make a statement to what I’d heard and that’s what I done.
I wrote something out and gave it to Mr Hooper...probably a week after it.”
Mr Hooper’s evidence in respect of 16 May appears in the following extract from the transcript (T55 and 56):
“On 16 May I came out of a consultative meeting with other employees. As I came out of the meeting, Richard Dunstan said to me that there had been a discussion between Kevin Ellison and Wayne Lowrie. Kevin had stated that he was going “to make Port Arthur look like a picnic”. I told Geoff Perry exactly what had been said to me and Geoff asked me what I was going to do about it. I said, well, I was going to report it to the police as soon as possible because in my role as manager I believed that I had a responsibility to protect other people as well as I felt myself that I was potentially threatened.
I went straight round to Terry Christie’s house, who was the kill floor supervisor who was Kevin’s immediate supervisor, told him of the event that had happened because he didn’t know about it. Terry rang the police from his house and they came around and I gave them my statement.”
The following exchange in cross-examination (T61-63) is relevant:
Counsel:You gave evidence that on 16 May Mr Dunstan told you that he had heard of a discussion between Mr Ellison and Mr Wayne Lowrie.
Hooper:Yes
Counsel:So Mr Dunstan described to you what Mr Lowrie told him?
Hooper:Said to him, yes.
Counsel:And was he pretty sure about what Mr Ellison was supposed to have said?
Hooper:Yes, he was very sure of what he said.
Counsel:And when did he say Mr Ellison had said it?
Hooper:That morning.
Counsel:On 16 May. And what did Mr Dunstan say Mr Lowrie had said Mr Ellison had said?
Hooper:He said that he had had a conversation with Kevin and Kevin said that he may be getting some casual work in the kill floor, and Wayne, who was the union labourer’s delegate said that he would not be getting any work in front of other casuals on the kill floor, and to that he said, “well, if I don’t get a full-time job, I will make Port Arthur look like a picnic”. That is how it was said to me.
Counsel:And you gave evidence that you went and repeated this conversation to Mr Geoff Perry. What position does he hold?
Hooper:General Manager.
Counsel:And is he above you in the chain of command is he?
Hooper:Yes, he is. He was at the consultative meeting...I conveyed to him what Richard Dunstan said to me about the incident. Geoff then asked me what I was going to do about it. I said, “I’ll report the incident to the police as soon as possible.”
Counsel:And then you went to see a Mr Christie?
Hooper:That’s right. Terry Christie is kill floor supervisor. He is Kevin’s direct supervisor. He is below me in the chain of command.
Counsel:At his house did you again repeat all of this to him?
Hooper:Yes, because Terry was unaware of what had happened.
Counsel:And Terry then rang the police did he?
Hooper:Yes, I was there, he said, “well, I’ll give them a ring and see if they are there because sometimes they are not there”.
Counsel:So the police were called and came around to Mr Christie’s house?
Hooper:Yes
Counsel:And they took a statement from you?
Hooper:Yes
Counsel:And did your statement set out that a Mr Dunstan had told you that a Mr Lowrie had told him that Mr Ellison had said something along the lines that you described.
Hooper:Yes
Counsel:And what did the police say they would do about it?
Hooper:Well, they said they would go and interview him, you know, see why he said it.
Counsel:Well did you say to them...or did you make a decision about whether or not you were going to call Mr Ellison about work the next day?
Hooper:He wasn’t required because we knew there was only one casual required on both those days but I had made...(indistinct)....no. I mean I was quite prepared to do it.
Court:You were quite prepared to do what?
Hooper:To call him in if required.
Counsel:Despite the fact that you have just told the police that this man has threatened to turn your workplace into a Port Arthur?
Hooper:Yes, I mean I hadn’t finally made a decision what I was going to do about it.
Counsel:Were you going to let the police sort it out for you?
Hooper:Yes
Counsel:And so what was going to be the decider for you, whether or not he was charged with something or convicted of something?
Hooper:I am sorry?
Counsel:Why would you let the police sort it out, what were they going to add to your decision making process?
Hooper:Well, I don’t know why he said it in the first place and I just thought it was serious enough for me to report it to the police because I was concerned of the safety of myself and other people that were working there and that was part of my responsibility.
Counsel:Let me ask you this, Mr Hooper, have you ever asked Mr Ellison why or in what context he made those comments?
Hooper:No
Counsel:Have you ever asked him when he made those comments?
Hooper:No
Counsel:So your reaction or decision was to inform the police of the conversation you had been told of?
Hooper:Yes, and that is in the light of the recent events at Port Arthur. I mean it made me aware that these things can happen and I didn’t treat it lightly.
Counsel:Certainly. But what I then asked you, Mr Hooper, was had you decided - when did you decide not to call Mr Ellison about work on 17 May?
Hooper:I hadn’t decided not to call him in. He wasn’t required.
Counsel:So the reason that Mr Ellison did not work on the 17th is that he was excess to labour in the boning room on that day? It is nothing to do with Port Arthur, is it?
Hooper:That’s right. There was one labourer required for Thursday and the Friday, which had been arranged pre the incident.
Counsel:Yes, you have explained that, Mr Hooper but is it the case that the reason Mr Ellison did not work on 17 May, the reason he did not work that day was pre-determined, if you like, because he was excess to labour?
Hooper:He wasn’t required.
Counsel:So the fact that he did not work that day had nothing to do with his Port Arthur incident, because he was not required?
Hooper:No, No.
Counsel:Now, did you hear back from the police about how their investigations are going?
Hooper:No. I rang the police, I think on Tuesday the 21st....I can’t remember exactly what day it was but I did ring them the next week.
Counsel:Do you remember whether you rang them before or after Mr Ellison came and got his Separation Certificate?
Hooper:It was after that.
Counsel:Right. And what did they report?
Hooper:They said that they had interviewed him. The people (i.e. the police) that I had spoken to and given my statement to weren’t there. I spoke to someone else and they just said that they had interviewed him.
MONDAY 20 MAY 1996
The Applicant gave evidence (T22) that when he went home on 16 May he “assumed that I would be out of work, paying off my house, I needed money to live on so...I started chasing up unemployment benefits, a separation certificate was required”.
The following exchange (T22) is relevant:
Counsel:Can you remember how long passed before you started chasing up the dole?
Applicant:It was roughly a week.
In fact five days later on 20 May the Applicant collected a Separation Certificate. He states (T21 and T22):
“on 20 May...I am not sure of the date now...I went to get a Separation Certificate from ICM. I saw Doug Pitches. Doug or Gina (a secretary) ticked the box which says ‘shortage of work’...they gave me the certificate on the same day...since that time I have not received any phone calls from ICM about work in the boning room or on the kill floor.”
The following exchange in cross-examination is relevant (T46 and T47).
Counsel: You came in again to the Respondent on 20 May?
Applicant: Yes
Counsel:You say you went and saw Mr Pitches, is not it true that you went and saw Mr Hooper?
Applicant:No, I saw Mr Pitches.
Counsel:You say you did not go and see Mr Hooper and ask for an Employment Separation Certificate?
Applicant:I am pretty sure it was Doug and Gina that were there, they were going to...there...I think.
Counsel:And in your discussions with the company on the 20th...were you told that you were dismissed?
Applicant:No, not exactly told, no.
Counsel:Well, what did they say to you?
Applicant:Well, I just walked into the office, asked if I could get a Separation Certificate.
Counsel:And who did you ask?
Applicant:Doug Pitches and then he said “yes”, and so they fussed around and got it and that was all that was said.
Counsel:And they provided you with an Employment Separation Certificate?
Applicant:Yes, and then I left.
Mr Hooper’s evidence (T56 and T57) is quite different.
Hooper:Mr Ellison came into my office on 20 May and asked me for a separation form. I said, “Okay, I’ll get that for you”...I went out of my office into the main office and said to Gina Annand to get the separation form and fill out what we had to fill out...then she brought it into me for me to sign, which I did, and then gave it to Kevin and then Kevin said that he had some bills for some mileage that he needed to be paid for...going from Yarrawonga to Albury to see his doctor. I said, “well, we’d fix that up”, and then he left. I didn’t say any more to him because I just felt that anything I said could inflame the situation and he didn’t say anything more to me so, you know, we left it at that.
Counsel: Do you believe that you terminated the Applicant’s employment?
Hooper: No, not under any circumstances.
Counsel:When the Applicant asked for an Employment Separation Certificate, what did you think?
Hooper:Well, I thought he was finishing up of his own accord. I mean, I had not seen him since Wednesday 15th until he presented himself on the Monday for a separation form.
Counsel:And you did not call Mr Ellison after that and offer him casual work?
Hooper:No...I just felt that...with the threats he had made...there was a possible conflict between..the people who worked there and himself. I didn’t think it was...conducive to a good working environment...I honestly thought he had resigned.
The following evidence in cross-examination is relevant (T66 and T67).
Counsel: When he came in on the 20th, did you ask him for his version?
Hooper:No, I didn’t. As I said, I didn’t want to inflame any situation that could have arisen from that. I didn’t know what frame of mind Kevin was in then.
Counsel:So that is why you filled out the form and had him out of there?
Hooper:I filled out the forms - got it filled out, signed it, gave it to Kevin, and Kevin left.
Counsel:And on the 20th was it your opinion that you didn’t want him working back there because of what you described as conflict?
Hooper:Well, I was concerned that - I mean, if he made that threat, that the same sort of thing could happen in the future.
Counsel:So you did not really want him back there, did you?
Hooper:Well, I suppose not. No. Especially after he’d asked for the separation form on Monday.
SUBMISSIONS
In essence, the Respondent’s case is that on 15 and 16 May the Applicant reacted angrily and inappropriately to the proposition that he was to return to casual work and that no such work was immediately available. The Respondent asserts that on 20 May the Applicant, by his own action, brought the employment relationship to an end.
The Respondent does not speculate on why the Applicant acted as he did on 15, 16 and 20 May.
The Court has concluded that the Applicant wanted and expected and thought he was entitled to a permanent position in the boning room.
The Court has also concluded that the Applicant did not want to come off light duties expect by way of appointment to such a permanent position.
Despite the expectation, the Applicant states he held, that he would be able to take a permanent appointment in the boning room when fit to return to normal duties, such an expectation could not be based on the Agreement of 28 September 1995 which provided for “return to his duties as a casual labourer in the boning room, where, his supervisor will use him as required, at times and places convenient to the boning room work process”.
The Respondent concedes that the Applicant’s behaviour on 16 May may have later led to a decision not to offer the Applicant further casual work in the boning room or on the kill floor but asserts that no decision to that effect was ever made because the Applicant obtained an Employment Separation Certificate on 20 May and left Wangaratta and left his employment with the Respondent.
Relying on Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 at 205 the Respondent asserts that there was no “act of the employer which resulted directly or consequentially in the termination of the employment” and further asserts that the Applicant “voluntarily left...the employment relationship”.
The Respondent cites Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160:
“It is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there has been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect.”
Counsel for the Applicant is also content to rely on Mohazab at 205 and claims that “the action of the employer is the principal contributing factor which (led) to the termination of the employment relationship”.
The Court is urged to “go behind the face of the Employment Separation Certificate” and consider “the evidence that the Applicant has given with respect to the background against which he went and asked for that certificate”.
Counsel for the Applicant also asked the Court to take account of Mr Hooper’s evidence in cross-examination (T67) that he “supposed (he) did not really want (the Applicant) back (at the Yarrawonga abattoirs)”.
The difficulty with these submissions is that there are aspects of the Applicant’s evidence which conflict with the evidence of Respondent witnesses and there are inconsistencies in the Applicant’s evidence. Where there are such conflicts, and because of the inconsistencies, the evidence of the Respondent’s witnesses is preferred to that of the Applicant.
The Applicant claimed that his comment about “making Port Arthur look like a picnic” was made in jest, “not intentioning to hurt anybody or anything just meaning (to) cause a fuss” (T46).
The Applicant also cannot remember when he made the comment but is adamant he made it “probably a week before (16 May)”. Indeed, in cross-examination, he responded to a question that “the Port Arthur incident had occurred some two or three weeks prior to this” as follows, “Yes, it did” (T46).
This is in direct conflict with the evidence of Mr Gissing who heard the comment and Mr Hooper who acted on the comment.
Counsel for the Applicant has submitted that the Court should draw an adverse inference from the failure of the Respondent to call Wayne Lowry to confirm the comment was made to him on 16 May. However, the Respondent did call evidence from Mr Gissing, a witness who heard the comment. I simply note that the rule in Jones v Dunkel (1959) 101 CLR 298 provides that the unexplained failure to call a witness may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case. The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. In this case I do not consider such a inference available, but, if it is available, it is of little significance.
The Applicant’s claim that the comment was made in jest and a week or two or three weeks before 16 May is inherently unlikely in the context of police action taken on 16 and 17 May and where the police investigation at that time is undisputed.
There is also the evidence of the Applicant that he went on unemployment benefits, although he expected to work for the Respondent again. He said (T50):
“I would just go on unemployment benefits just to cover me because I was not sure how long it was going to be, I thought it might have taken some time to cool down maybe. I thought it might cool down, like they might give me a couple...if I wait..to cool down, I did not know what was going on. I didn’t know, just to let all the...I don’t know. Because I had asked them about the full-time bizzo and that, and I thought I would just wait until that had settled down, like the dust had settled, I expect.”
The Applicant seems to imply that he was talking about a cooling down period because of heat generated by his requests for full-time or permanent employment. It is far more likely that he was referring to some time being necessary for the situation to cool down after the threat “to make Port Arthur look like a picnic”.
The Court has noted that the conflicts in the Applicant’s evidence also included his initial claim that prior to the hernia operation he invariably worked from 7:00 am to 12 noon five days a week and received a salary in the order of $600 a week. In cross-examination, the Applicant conceded the inaccuracy of this claim. The Applicant has also claimed that it was Mr Pitches and not Mr Hooper who gave him the separation certificate. The certificate was signed by Mr Hooper. The Court accepts that he gave the certificate to the Applicant.
CONCLUSION
The Court has already expressed the view that the Applicant:
wanted and expected and thought he was entitled to a permanent position in the boning room
did not want to come off light duties except by way of appointment to a permanent position
The Court has concluded that:
on 16 May the Applicant did make a comment to the effect that “if (he) didn’t receive a full-time position (he) would make Port Arthur look like a picnic”
on 20 May the Applicant sought and obtained an Employment Separation Certificate and deprived himself of the possibility of future offers of casual employment consistent with the Agreement of 28 December 1995
the Respondent did not take action to terminate the employment of the Applicant although that is a course of action which may have been taken if the Applicant had not left of his own accord
I find that there was no termination at the initiative of the employer and that the application fails for lack of jurisdiction and must be dismissed.
It is therefore unnecessary to further consider the Applicant’s claims that there was a termination:
without valid reason pursuant to s170DE(1)
for a prohibited reason pursuant to s170DF(1)(a)
in breach of s122 of the Accident Compensation Act 1985 (Victoria)
in breach of the ICM/AMIEU Victorian Meat Processing Agreement August 1995
MINUTES OF ORDERS
THE COURT ORDERS:
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
I certify that this and the preceding 14 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 18 July 1997
Solicitors for the Applicant: Ryan Carlisle Thomas
Counsel for the Applicant: Ms R Doyle
Mr A Britt, Australian Chamber of Manufactures, appeared for the Respondent
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