Gary Sinclair v Anthony Smith and Associates Pty Ltd

[1995] IRCA 603

C A T C H W O R D S

INDUSTRIAL LAW - Termination of employment - redundancy - failure to consult with Applicant or Union - reinstatement.

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

GARY SINCLAIR -V-ANTHONY SMITH & ASSOCIATES PTY LTD

No. SI1260 of 1995

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  2 NOVEMBER 1995

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

No. SI1260 of 1995

B E T W E E N:

GARY SINCLAIR

Applicant

AND

ANTHONY SMITH & ASSOCIATES PTY LTD

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  2 NOVEMBER 1995

THE COURT ORDERS THAT:

1. The Respondent reinstate the Applicant by appointing the Applicant to another position on terms and conditions no less favourable than those on which he was employed immediately before the termination of employment.

1. The Respondent pay to the Applicant the remuneration lost by the Applicant because of the termination of his employment.

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. SI1260 of 1995

B E T W E E N:

GARY SINCLAIR

Applicant

AND

ANTHONY SMITH & ASSOCIATES PTY LTD

Respondent

BEFORE:                 JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  2 NOVEMBER 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement.

The Applicant was employed by the Respondent from January 1990 as a shift supervisor.  His employment is governed by the Metal Industry (South Australia) Award.  His employment was terminated on 15 June 1995. The reason his employment was terminated was because the job he had been doing was being made redundant.

The Applicant gave evidence that the termination of his employment came as a surprise to him.  All previous indications from the Respondent were to the effect that no jobs would be lost on the factory floor.  The Applicant is the father of five children, aged between 14 years and 6 months.  He continued to work for the Respondent despite the fact that over the last few years he has not wanted to do shift work because of difficulties with his teenage son and despite the fact that he would receive payments from Social Security in excess of what he earned from his employment.

He was given no warning that his employment was to be terminated.  He was given no opportunity to work out his notice period.  The employer did not consult with the Applicant or the relevant Union regarding the matter.  No attempt was made to find an alternative position for the Applicant within the Respondent’s business operation.  The Applicant was not counselled about his impending dismissal.

In my view if the employer had consulted with the Applicant and the Union and considered the alternatives available to it, it is likely that the Applicant’s employment would have continued. 

In my view the termination of the Applicant’s employment was harsh unjust and unreasonable and breached the Industrial Relations Act 1988.

Reinstatement is the primary remedy in this jurisdiction.  The applicant gave evidence of his desire to be reinstated and expressed his desire to hold himself out as a role model for his teenage son.  None of the evidence adduced by the Respondent satisfies me that reinstatement is impracticable. 

A number of positions at the Respondent’s business are currently filled by casual contract labour.  I am satisfied that reinstatement to some other position in the Respondent’s business is not impracticable.

I therefore order the Respondent to reinstate the Applicant by appointing the Applicant to another position on terms and conditions no less favourable than those on which he was employed immediately before the termination of employment and the pay to the Applicant the remuneration lost by the Applicant because of the termination of his employment.

I certify that this and the preceding  page is a true copy of the reasons for my judgment.

DATE OF HEARING  :          19 and 23 October 1995

FOR THE APPLICANT       :          Mr S Blewett

FOR THE RESPONDENT    :          Mr G Coppola