Gregory Allen Robinson v Custom Craft Marine

[1995] IRCA 160

IN THE INDUSTRIAL RELATIONS  )    No. WI 375 of 1994

COURT OF AUSTRALIA  )

WESTERN AUSTRALIA DISTRICT REGISTRY     )

BETWEEN:Gregory Allen Robinson

Applicant

AND:Custom Craft Marine

Respondent

BEFORE:                 Wheeler JR
PLACE:  Perth
DATE:  21 April 1995

REASONS FOR JUDGMENT

In this case the applicant had his employment terminated by the respondent on 2 June 1994.  He was a qualified mechanic, and had been employed by the respondent in response to the respondent's advertisement for a person with mechanical qualifications to be trained in marine motors.  It was common ground that there was a shortage of experienced and qualified marine motor mechanics.

The applicant's case was that he had been, so far as he knew, a satisfactory employee, that he had had some time off work as a result of an accident at work, and that shortly after his return he had had a renewal of a previous argument with Mr Murray Piesse, the day-to-day manager of the respondent's operations, as a result of which Mr Piesse had dismissed him.

The background to the argument was that the applicant said he had for sometime had a concern about being paid somewhat under the appropriate award rate, and that he had a concern that it appeared to him that work done on Saturday mornings,

for which he said he was paid in cash, had not been the subject of the appropriate returns to the Australian Taxation Office.

The respondent's case was that in the boat building business there is always a quiet time during the winter months, during which servicing work is necessary in order to provide enough employment for the mechanics.  The intention when the applicant was engaged was to send him to a training course in March 1994 so that he would then be qualified to undertake services unsupervised during the quiet period.  Due to the applicant's absence following his accident it had not been possible for him to go to the March course (which it appears was cancelled due to lack of numbers in any event) and upon the applicant's return to work it was realised that there was simply not enough work to keep him going.  There were two mechanics employed, but as the applicant was the last employed, and somewhat less qualified, the decision was made to let him go rather than the other mechanic, Luke Gardiner. 

The respondent's witnesses were at pains to emphasise that in their view appropriate award wages had been paid, and that there was nothing untoward about the arrangements for Saturday morning work; the details of which I do not need to set out here.  In my view, the question of whether there was in fact any irregularity is something of a red herring.  The applicant gave evidence which I accept, that he believed that there was some irregularity and that he had taken it up with his employer on more than one occasion.  He called Mr Gardiner, who gave evidence that he had had similar concerns.  Mr Gardiner gave evidence that he was aware of an argument between the applicant and Mr Murray Piesse on the day that the applicant was dismissed, although he was not aware of all of the details of the conversation.

The evidence of Mr Jay Piesse for the respondent was, in my view, very significant.  He kept track of the respondent's financial affairs, and his evidence about the winter downturn suggested that it may well have been that at some stage during the winter
it would have been necessary to dismiss a mechanic.  However, he also gave evidence that the March school, which the applicant had missed, was not in itself particularly significant, as a mechanic with sufficient experience would be allowed to skip the March training and attend the more important July school at the conclusion of which a certificate was presented.  Further, he said that if a mechanic had been only to a March school, he still would be unable to go out unsupervised in order to do services.  He further suggested that there was in fact no Saturday work, while Mr Murray Piesse had, in his evidence, apparently accepted that there was, which tends to suggest that there may have been room for some differing interpretations on the part of the employees concerning the status of Saturday work and any resulting remuneration.

Because of its inconsistencies in some material respects with the evidence of Mr Jay Piesse, I am inclined to regard Mr Murray Piesse's evidence as unreliable.

I find that there was an argument and that the argument was the immediate cause of the applicant's dismissal.  I further find that the argument, which resulted from a concern on the applicant's part about his conditions of employment, did not constitute a valid reason for dismissal.  There is no suggestion that the applicant conducted himself otherwise than moderately and properly during the course of the argument.

It may well have been that the applicant would have been dismissed at some stage in any event for lack of work.  Further, the applicant soon found other employment in which his pay was better than that he had previously been receiving with the respondent.  He is now a recruit undergoing training to become a police officer and he does not seek reinstatement.  It is appropriate that he receive therefore, only nominal compensation.  The respondent is properly known as BRF Pty Ltd, Custom Craft Marine being its trading name. 

I order in this case that the respondent BRF Pty Ltd pay the applicant compensation in the sum of $300.

I certify that this and the preceding three (3) pages are a true copy of the reasons for the judgment of Judicial Registrar Wheeler.

Associate:
Date:

The Applicant appeared in person.

Counsel for the Respondent:  Mrs K.M. Reid
Solicitors for the Respondent:  Michael, Whyte & Co.

Date of Hearing:  13 March 1995
Date of Judgment:  21 April 1995

IN THE INDUSTRIAL RELATIONS  )    No. WI 375 of 1994

COURT OF AUSTRALIA  )

WESTERN AUSTRALIA DISTRICT REGISTRY     )

BETWEEN:Gregory Allen Robinson

Applicant

AND:Custom Craft Marine

Respondent

BEFORE:                 Wheeler JR
PLACE:  Perth
DATE:  21 April 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The respondent BRF Ltd, trading as Custom Craft Marine pay the applicant compensation of $300 within 10 days of the date of this order.

Note:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - claim of unlawful termination - whether employer had valid reason for termination - compensation.

INDUSTRIAL RELATIONS ACT 1988, S 170EA

GREGORY ALLAN ROBINSON v CUSTOM CRAFT MARINE
No. WI 375 of 1994
BEFORE:                 Wheeler JR
PLACE:  Perth
DATE:  21 April 1995