Fryar v System Services Pty Ltd

[1995] IRCA 256

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - REDUNDANCY -

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

VI-DAN THACH -V- SA TOYO PAPER PRODUCTS PTY LTD

No. SI 95/1019

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  8 JUNE 1995

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI 95/1019

B E T W E E N:

VI-DAN THACH

Applicant

AND

SA TOYO PAPER PRODUCTS PTY LTD

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  8 JUNE 1995

THE COURT ORDERS THAT:

1. The application is dismissed.

NOTE:           Settlement and entry of Orders is dealt with by Order 36 of the   
  Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI 95/1019

B E T W E E N:

VI-DAN THACH

Applicant

AND

SA TOYO PAPER PRODUCTS PTY LTD

Respondent

BEFORE:                 JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  8 JUNE 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act 1988. The Applicant claims that his employment was terminated unlawfully. He seeks compensation. He does not seek reinstatement.

I find the facts as follows.  The Applicant was employed by the Respondent as a Machine Operator from the 28th October 1992.  From about the time that his employment was made permanent in March 1993 the Applicant’s duties were those of a packer. 

On the 16th December 1994 the Applicant’s employment was terminated.  He was not given written notice of the termination of his employment, however, he was advised that the reason for the termination of his employment was “decrease in production”.

The Applicant’s employment was terminated along with five other employees.  Three of those employees were machine operators from the afternoon shift which was abolished.  The afternoon shift consisted of four machine operators.  A fourth employee who worked on the afternoon shift was promoted to production supervisor following the resignation of another employee.  The other employee whose employment was terminated was a trainee machine operator on the day shift.  The Applicant did the packing work for both the day and the afternoon shift. 

Another employee of the company Mr Nguyen, returned to work in September 1994 on light duties. He was given packing and cleaning duties. Initially he worked four hours per day however by late December he was working eight hours per day. Mr Nguyen had been returned to work to meet the employer’s obligations pursuant to the Workers Rehabilitation and Compensation Act (SA). Another employee also did packing work, Mr Ming Bow Hoan. His main duties however were those of Storeman and Forklift Driver.

At the time of termination of the Applicant’s employment he was offered the opportunity to work out his notice period.  The employer made enquires with another packing company to see if the employees could be employed there.  The employer offered to approach the employees whose employment was terminated first if jobs became available in 1995.  The employer refused to do so in writing.

A meeting was held at the request of the Applicant following the termination of his employment. 
The purpose of the meeting was to explain to the Applicant why he had been dismissed.  The Applicant made a tape of that meeting, however that tape was not tendered in evidence.

In early 1995 an employee of the company took paternity leave and a casual employee replaced him.  Another employee of the company was involved in a motor vehicle accident and was absent for approximately two months.  During that period he was replaced by an employee of  “Section B” being a separate company but under the same roof as the Respondent company.  Employees of the Respondent have been working increased over time since the abolition of the afternoon shift.

I accept the argument of the Applicant’s counsel that there is no obvious correlation between  the figures regarding sales performance and the reasons for the termination of employment of the Applicant as asserted by the Respondent.

There is no dispute that the afternoon shift was in fact abolished and in the absence of any significant evidence to the contrary that establishes that production must have decreased.  That some employees have performed overtime since the abolition of the afternoon shift does not alter that.  The employer maintained it had the right to select employees that best fitted the tasks at hand.  In view of the fact that of the two other employees who performed some packing duties one was mainly employed as a Storeman Forklift Driver and the other was employed as a Packer and Cleaner, it appears to be that the employer had a valid reason for choosing Mr Thach rather than either of those two employees. 

The Applicant’s counsel argued that the employment of a casual and employment of a “Section B” employee in early 1995 to replace a worker who had been involved in a motor vehicle accident established that the employer was not bona fide in making the Applicant’s position redundant however those two events were not anticipated by the company at the time of the termination of this Applicant’s employment. 

I am satisfied for these reasons that the Respondent had a valid reason for the termination of the Applicant’s employment.  No evidence was tendered that satisfies me that the employment of the Applicant was terminated harshly unjustly or unreasonably in view of the fact that he was given the opportunity to work out his notice, all award obligations were met and that he was offered work if there was an increase in production at a later date.

For these reasons the Application is dismissed.

I certify that this and the preceding two pages are a true copy of the reasons for my judgment.

DATE OF HEARING          :          24 and 25 May 1995

FOR THE APPLICANT       :          Ms I Condon

FOR THE RESPONDENT    :          Mr A Chismeysa