Henry Tomlinson v National Rail Corporation Ltd
[1995] IRCA 376
•31 July 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - Reinstatement
Industrial Relations Act 1988, S170DB, S170DE, S170EA, S170EE
CASES:
Cooper v Darwin Rugby League [1994] 1 IRCR 130
R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Limited [1977] 44 SAIR 1202 at 1205
Corkrey v General Motors Holden Ltd [1986] SAIR 351; 1986 AILR 439
Hemmings and Others v CPS Credit Union [1991] 58 SAIR 421; 1991 AILR 323
Cheesman v Kinhill Engineers Pty Ltd [1992] 59 SAIR 168
Papadopoulos v The Colonial Mutual Life Assurance Society Ltd, IRCA, Ryan JR, (unreported) 16 August 1994
Byrne & Frew v Australian Airlines Pty Ltd [1994] 120 ALR 2724
Nicholson v Heaven and Earth Gallery Pty Ltd [1994] 126 ALR 233
Liddell v Lembke [1994-95] 127 ALR 342
ANTHONY WAYNE STORK v K J WAITES
No. VI-1671/95
Before: Ryan JR
Place: Melbourne
Date: 3 August 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI-1671/95
B E T W E E N: ANTHONY WAYNE STORK
Applicant
AND:K J WAITES
Respondent
RYAN JR
MINUTES OF ORDER
3 AUGUST 1995
THE COURT ORDERS THAT:
for the breach of section 170DB(2), the respondent pay the applicant the sum of $500 by 5 pm on Monday, 7 August 1995
for the breach of section 170DE(2), the respondent pay compensation in the sum of $5,000 to be paid in monthly instalments of $1,000 commencing 17 August 1995.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI1671/95
B E T W E E N: ANTHONY WAYNE STORK
Applicant
AND: K J WAITES
Respondent
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 3 AUGUST 1995
JUDGMENT EX TEMPORE
Anthony Wayne Stork on 16 February 1995 lodged an application for remedy in respect of a claim for unlawful termination of employment. Attached to the application is a copy of a notice of termination of employment which reads as follows:
“Waites Robson Stonemasons
Notice of termination of employment.
To Anthony Stork.
10 February 1995.
Please be advised that your employment under the individual employment agreement dated 8 November 1993 is hereby terminated forthwith.
You are not required to work the period of notice required in the agreement and payment in full is made for this period.
Reason for termination:
We are currently downsizing our business and restructuring our production resources. The Northwestern Regional Office at Swan Hill is currently being closed down and, as a result, your position no longer exists.
Waites Robson Stonemasons, Stawell,
per P Kinnane
for Mr Kevin Waites, Manager/Owner.”
The application is in the form prescribed under Order 75 subrule 3(1).
In paragraph 21 of the application (form 132) the applicant has written:
“I did not work in Swan Hill. Since my termination, two employees have been employed. Upon termination, I received one week’s pay for a period of 34 months continuous service.”
On 9 March the District Registrar received a letter dated 6 March 1995 from Goodfellows Specialist Services who, among other things, describe themselves as “consultants for employee agreements”. At that stage, Goodfellows Specialist Services appear to have been acting for the respondent. The second paragraph of that letter reads as follows:
“The employer is instructed to exercise his rights to defend the matter and puts on notice his intention to lodge a motion before the Commission as to appropriate jurisdiction on the basis of:
the employee was terminated due to a restructure and downturn in business
the employee was covered by an individual employment agreement under the Employee Relations Act 1992, Victoria, and subsequently lodged with the Victorian Commission
the termination convention under the Industrial Relations Reform Act, Division 3, Part VIA section 170CC excludes certain types of categories of employees, specifically employees engaged under a contract of employment.”
First of all, the Court notes that no such motion was ever filed.
The Court notes that this particular issue was not pursued at the hearing but given that the respondent is unrepresented and is appearing for himself, the Court proposes to deal with that matter now.
Section 170CC does not exclude employees under a contract of employment. It may exclude an employee under a contract for a fixed period. This is not such a contract. I rely on Cooper v Darwin Rugby League [1994] 1 IRCR 130 for that proposition.
On 21 March, K J Waites, Kevin Waites, as a proprietor of the respondent business, signed and lodged a notice of appearance. On or about 29 March, the application was referred to the Australian Industrial Relations Commission pursuant to section 170EC and on 11 May the Commission certified under subsection 170ED(2) that it had been unable to settle this matter by conciliation, thus the matter is to be heard and determined by the Court.
Let me begin by stating that I have no doubt that Kevin Waites is a good and genuine employer and that Anthony Stork was an effective, productive, experienced worker in the stone industry and with the respondent’s business. Furthermore, I have concluded that the respondent terminated the applicant’s employment. Mr Waites has a clear perception that, in terms of the operational requirements of his business, a restructure which removed one or more experienced but, in relative terms, expensive workers, just below the top tradesman level (using that term in an industry sense and not in the sense of somebody with approved qualifications) might allow the business to survive for some time or perhaps indefinitely.
The Court does not accept the proposition of Counsel for the applicant that salary rises, overtime or the employment of Mr Holmes full time, or even the employment of Mr Cashin for some time in an additional capacity, are inconsistent with viability problems or inconsistent with a termination based genuinely on operational requirements. The Court accepts the decline in monumental graves and the increase in lawn cemeteries and, for that matter, cremation, continue to impact adversely on those stonemasons who rely on funeral monuments for all or part of their business.
On the basis of numerous authorities, including R v Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-operative Limited, Corkrey v General Motors Holden, Hemmings and Others v CPS Credit Union, Cheesman v Kinnel Engineers and, indeed, several other authorities cited in Papadopoulos v CML. I conclude that a restructure such as followed by the respondent, rather fast and with a minimum of preparation, can constitute a valid reason for termination. However, the authorities just cited all make it very clear that the process must be fair and reasonable.
More importantly, section 170DE(2) requires it and leading cases such as Byrne v Frew, Nicholson v Heaven and Earth Gallery and Liddell v Lembke confirm that fact.
The respondent concedes that section 170DB(2) required a minimum of two weeks notice, not one.
Furthermore, clause 7 of the employment agreement was clearly breached in this termination and Mr Waites basically conceded that consultation with the employee in respect of a rather fast, informal restructure process was, to summarise his words, “impracticable and counter productive”.
Well, the fact of the matter is that fundamental fairness requires some opportunity be provided to the employee before he is chopped off at the socks - in this case, four days after Mr Waites told him that his employment was not at that stage under threat and that no decision had been made in respect of future terminations. I rely on Mr Waites own evidence in respect of that.
An employee cannot simply rely on assumed knowledge by employees of financial difficulties, no matter how real those difficulties. The termination was unfair and breached S170DE(2).
The order of the Court is that for the breach of section 170DB(2) - before I go to that, I have concluded and specifically using the test of the Chief Justice in Nicholson v Heaven and Earth Gallery, that in these circumstances reinstatement would be quite impracticable.
ORDERS
So the orders of the Court are as follows:
for the breach of section 170DB(2), the respondent pay the applicant the sum of $500
for the breach of section 170DE(2), the respondent pay compensation in the sum of $5,000; that is, the equivalent of 10 weeks salary at $500 gross a week.
In making such orders I take into account the $2500 earned by the applicant in casual employment since termination. The applicant is to be commended for the efforts he has made and continues to make to obtain full time employment.
I take into account the unemployment benefits received at a rate of $145 a week when the applicant was in a position of unemployment.
I have taken into account the fact that the applicant is a reasonably skilled operator in an industry in some decline and I have taken into account a difficult employment situation in Victoria and specifically in Maryborough.
I have also taken into account that if the employer had applied procedural fairness, the applicant’s likely tenure of employment with the respondent was almost certainly short, despite clause 7 in the employment agreement.
Mindful of the respondent’s difficult financial position, I order that the $5,000 compensation be paid in monthly instalments of $1,000, commencing on 17 August 1995; but I order that the $500 in lieu of the second week of notice be paid by 5:00 pm on Monday, 7 August.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 11 August 1995
Appearances:
Counsel for the Applicant : Angela Nordlinger
Solicitor for the Applicant : Ramsay, Gaunt & Fraser
The Respondent appeared in person
Date of Hearing : 3 August 1995
Judgment : 3 August 1995
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