Goodfellow v Scrymgour Printers and Stationers Pty Ltd
[1996] IRCA 379
•05 July 1996
DECISION NO: 379/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - unlawful termination - redundancy - failure to consult or consider alternatives - compensation
INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170EE
GOODFELLOW V SCRYMGOUR PRINTERS & STATIONERS PTY LTD
No.SA96/1042
JUDICIAL REGISTRAR : LJ FARRELL
PLACE : ADELAIDE
DATE : 5 JULY 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No.SA96/1042
B E T W E E N
PAMELA GOODFELLOW
Applicant
AND
SCRYMGOUR PRINTERS &
STATIONERS PTY LTD
Respondent
MINUTES OF ORDER
BEFORE : JUDICIAL REGISTRAR LJ FARRELL
PLACE : ADELAIDE
DATE : 5 JULY 1996
THE COURT ORDERS THAT:
The Respondent pay to the Applicant the sum of $5,500 within 21 days.
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 )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No.SA96/1042
B E T W E E N
PAMELA GOODFELLOW
Applicant
AND
SCRYMGOUR PRINTERS &
STATIONERS PTY LTD
Respondent
BEFORE : JUDICIAL REGISTRAR LJ FARRELL
PLACE : ADELAIDE
DATE : 5 JULY 1996
REASONS FOR JUDGMENT
This is an application for relief in respect of termination of employment. The application comes before the Court pursuant to the provisions of Section 170ED of the Industrial Relations Act.
The Respondent is a company that has a printing operation and a retail stationery business. The Applicant commenced employment with the Respondent in September 1989 as a bench hand. From about 1990 until the termination of her employment on 9 February 1996 the Applicant performed a range of duties as the assistant to the Factory Manager.
2
It was agreed between the parties that the Graphic Arts - General - Interim Award 1995 governed the Applicant’s employment with the Respondent. By about September 1995 the Respondent was incurring financial losses. In about October 1995 new hardware was purchased and a refurbishment took place. In about November 1995 it was decided that some jobs would have to be made redundant if the company’s financial position did not improve. In January 1996 it was decided that four positions were to be made redundant, two of those positions were to be from the factory and two from the other side of the business. Because of two resignations at about that time it was necessary only for one position from the factory to be made redundant.
Mr John Scrymgour decided to make the Applicant’s position redundant. He did some check to see if the Applicant could be employed in some other part of the business. On 5 or 6 February 1996 he telephoned the Union representative of the Applicant. On Thursday, 8 February 1996 he called the Applicant into his office and following a brief explanation of the company’s financial position, he advised her that her employment was being terminated and she was given the option of working out her notice period or leaving straight away. The Applicant subsequently decided not to work out her notice period.
I am satisfied that the Respondent genuinely needed to reduce the number of employees working in the factory based on the evidence before me relating to the Respondent’s financial position. I am not satisfied that the Respondent had a valid reason for choosing to terminate the Applicant’s employment rather than any other non tradesperson.
The Respondent had no established criteria for selection of employees for redundancy, nor did it seek to consult with the union to agree the criteria to be applied in selecting the employees to be made redundant. The Respondent failed to demonstrate any sound or objective basis of comparison between the Applicant and other non tradespeople in the factory. Rather, my impression of the Respondent’s evidence in this regard was that the Applicant was selected first and only then did the Respondent seek to justify her selection.
3
Counsel for the Applicant argued that the Applicant was dismissed because she had made a complaint of sexual harassment against another employee in September 1995. Counsel for the Respondent sought to adduce evidence regarding that complaint. I refused to allow any more than evidence of whom the complaint was made to and what the nature of the complaint was. The implication was that the complaint was either trivial or vexatious. It seemed to me that because the Applicant regarded the making of a complaint as being the cause of the termination of her employment delving into the substance of the complaint went beyond the bounds of what was relevant to the issues in this matter.
In any event on the evidence before me I am satisfied that the Respondent did not have regard to that complaint in coming to its decision to dismiss the Applicant.
The Applicant’s representative argued that the termination of the Applicant’s employment was harsh, unjust and unreasonable because of the Respondent’s failure to consult with the Applicant and her union, and the failure of the Respondent to consider other alternatives such as calling for volunteers or reducing the Applicant’s hours.
There was evidence of employees subsequently leaving the Respondent and the Respondent had no reasonable explanation for not calling for volunteers. In these circumstances I think the failure of the Respondent to consider other alternatives renders the termination of this Applicant’s employment harsh, unjust and unreasonable.
Before advising the Applicant of the termination of her employment the Respondent advised the Applicant of the Respondent’s financial circumstances. The Applicant was also given the option of working out her notice or leaving. No other attempt was
made to discuss or consult with the Applicant regarding the termination of her employment.
REMEDY
The Applicant did not seek reinstatement. The Applicant is aged 49 years.
4
The Applicant was paid $391-90 per week. The maximum amount of compensation that I could award is $10,189-40. Since approximately five weeks after the termination of her employment the Applicant has been in casual employment. The amount she has earned in each week varies. On a simple averaging of her loss she would be entitled to $55 per week . However on an application of the principle set out by Gray J in AMIEU v Sunland Enterprise (1988) 81 ALR at page 222 her average weekly loss would be approximately $90 per week. In addition the Applicant is now paid a loading of 20% however any sick leave or annual leave she takes will be without payment.
The Applicant received the Award prescription in relation to notice and severance payment. The Applicant was not cross examined as to what age she intended to retire. The Applicant continues to seek permanent full time employment.
Although the Respondent has a history of avoiding terminating the employment of its employees, its current financial position and the downturn in the Industry generally must mean there is some real risk that the Applicant’s employment would have come to an end in any event.
Having regard to the above factors and contingencies I award compensation to the Applicant in the sum of $5,500.
I certify that this and the preceding 3 pages are a true copy of my Reasons for Judgment.
DATES OF HEARING : 24 & 26 JUNE 1996
FOR THE APPLICANT : MR BLEWETT
FOR THE RESPONDENT : MR CHISMESYA
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