Hudson v Jambro Pty Ltd
[1996] IRCA 317
•18 July 1996
DECISION NO: 317/96
C A T C H W O R D S
INDUSTRIAL LAW - UNLAWFUL TERMINATION - REDUNDANCY - VALID REASON for termination - failure to show proper application of selection criteria - HARSH UNJUST OR UNREASONABLE - PROCEDURAL FAIRNESS - failure to consult employee in contravention of award provisions - failure to take steps to minimise or avert harsh consequences of redundancy
Industrial Relations Act 1988 ss.170DB, 170DC, 170DE(2), 170EA, 170EE(2), 170EE(3)
CASES: Kenefick & Ors v Australian Submarine Corporation Pty Ltd
(unreported, Full Court of the Industrial Relations Court of Australia,
Nos SI 94/290, 292, 293, 294, 295, 26 March 1996)
Quality Bakers of Australia Ltd v Goulding and Another (1995) 60 IR
327
Sinclair v Anthony Smith & Associates Pty Ltd (unreported,
von Doussa J, No. SI 1260 of 1995, 1 December 1995)
Mitchell-Collins v Latrobe Council (1995) 60 IR 480
Goss & Ors v Fluor Daniel Power & Maintenance Services Pty Ltd
(unreported, Millane JR, Nos. VI95/2459, 2463, 2464, 2468, 2469
2470, 2474, 2478, 2536, 8 February 1996)
Kilpatrick v Birko Australia Pty Ltd (unreported, Millane JR, No.
VI 5669 of 1995, 12 July 1996)Leddicoat v Schiavello Commercial Interiors (S.A.) (unreported,
von Doussa J, No. SI 1153 of 1995, 18 October 1995)
KEVIN HUDSON - v - JAMBRO PTY LTD
No. VI 5743 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 18 July 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5743 of 1995
B E T W E E N :
KEVIN HUDSON
Applicant
AND
JAMBRO PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 18 July 1996
THE COURT DECLARES THAT:
The termination of the applicant’s employment on 13 October 1995 contravened Division III Part VIA of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT:
Within 21 days of the date of this Order the respondent pay to the applicant compensation in the sum of $5,307.72 gross less any amount payable to the Commisioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5743 of 1995
B E T W E E N :
KEVIN HUDSON
Applicant
AND
JAMBRO PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 18 July 1996
REASONS FOR JUDGMENT
On 30 January 1995 the applicant who has training as a motor mechanic and was then unemployed was offered and accepted employment by the respondent as a service technician at the respondent’s Clayton premises. The applicant alleges that on 13 October 1995 he was made redundant in contravention of Division III Part VIA of the Industrial Relations Act 1988 (the Act).
Defending the proceedings the respondent relied on what it said was a valid reason; namely, termination due to the operational requirements of the company.
The respondent was represented by counsel at hearing and called two witnesses, Noel Francis Edwards (Edwards), the respondent’s state manager for some two and a half years and Roland Alexander Perry (Perry), who is based in Sydney and has been the respondent’s general manager for just on five years.
The applicant appeared in person and gave evidence in his own cause. It is always difficult for unrepresented parties and those without training in legal matters to operate within the Court environment as well as understand and meet the requirements of the rules of evidence. The applicant’s difficulties were compounded by his obvious distress concerning the matters which occurred during his employment and which he says were the reason for the termination.
BACKGROUND
The applicant obtained his position through the Commonwealth Employment Service. It was common ground that the position required on the job training in the servicing and repairing of tools. The respondent sells and maintains building tools and has offices in each state. In Victoria there was at the relevant time the Clayton office, which has since shifted to Cheltenham, and a Geelong office where there are no service technicians but principally sales people.
The advertisement for the position sought a mechanically minded person, a description which fitted the applicant with his motor mechanic training.
After two interviews the applicant was engaged by Edwards who alleged that at both interviews the applicant was referred to and shown a job description (Exhibit R3) which the applicant declined to sign because he did not agree with some of the functions listed on it. The applicant on his part denies ever seeing Exhibit R3 and, on balance, it is unlikely that Edwards would have proceeded to engage the applicant for the position offered if there had been a refusal to accept all of the functions offered. What is more likely is that when subsequent difficulties emerged concerning the performance of the applicant’s duties this document came to light and the applicant declined then to sign it because it included duties such as maintaining and servicing vehicles etc.
It was agreed that there was a trial period of some three months to 30 April 1995 when the applicant’s performance was considered sufficiently good for his services to be retained. Indeed, Edwards said he was happy with the applicant’s employment performance up until the end of that period. Edwards acknowledged that when the applicant was engaged he was told there would be an annual review of his salary and his salary review would occur after the trial period, in about June 1995. Despite a protest by the applicant it appears that no review of his salary ever took place.
It was Edwards evidence that his assessment of the applicant’s performance changed after 30 April 1995. There were numerous meetings with the applicant concerning training and performance matters as well as meetings initiated by the applicant regarding his salary review and some complaint about his training.
In his evidence-in-chief Edwards spoke only in terms of the applicant’s commitment to training and performance issues. He did allude to the applicant’s express concerns referred to above, but otherwise made no mention of any other concerns the applicant raised at any of their meetings until Edwards was pressed to do so in cross-examination.
The respondent’s Melbourne operation during 1995 had eleven staff. There were two service technicians, including the applicant, and a service technician named Jeff who had been employed by the respondent for some four and a half years. Apart from Edwards there were four external sales people, two telephone sales persons, two administrative staff and one dispatch and store person.
On the evidence given by Perry it was said that in the months preceding the applicant’s employment the number of tools logged in for service for the months of January and February 1995 were 19% and 16% respectively more than the same period in the previous year, however, from March 1995 there was a significant downturn fluctuating between 35% in March and 10% in September 1995. Interestingly enough, the downturn in April was allegedly 29%. Despite this downturn the respondent retained the applicant’s services at the completion of the three month trial period. This action is consistent with a belief that he was then performing well.
The applicant worked in a workshop with the other service technician, Jeff, who apparently had some hand in training the applicant. It was alleged by the applicant that Jeff was a manager and had business cards for selling products to clients which identified him as a manager. The respondent denied this indicating that Jeff was at best in a supervisory role. Whatever the true position of Jeff may have been, it is clear that Jeff had some role in training and instructing the applicant in the workshop where the applicant was new and required training.
The applicant told the Court that in the first couple of weeks at work all was well until Jeff started bullying, threatening and intimidating him. The applicant appeared to be of an average height, however, it was agreed that Jeff was very tall, possibly as tall as 6ft 8”.
The applicant claimed that at first he was subjected to verbal bullying and he tried to ignore it and get on with his job in the first few months. However, it got so bad that on one occasion he was picked up by the other employee and shaken. Because of this incident and the verbal bullying, some days later when a position became vacant in the company in about April 1995 as a result of another employee, Lisa, going on maternity leave, he went and saw Edwards and applied for the position. The position was in administration. He was interviewed by Edwards who at the same time asked him why he was applying for the position. In response the applicant alleges he explained to Edwards in some depth the extent of the threats and bullying he was experiencing from Jeff as well as mentioning the lifting and shaking incident.
The applicant was not offered the alternative position because, according to Edwards, the applicant had no data entry training. This allegation was disputed by the applicant who claimed to have done some data entry training at a TAFE college whilst he was unemployed.
In cross-examination Edwards denied any mention at the interview for the alternative position of any intimidation or stand over tactics being used by Jeff. However, he eventually conceded that there was at least a complaint about Jeff’s rudeness to the applicant. At that stage he claims to have not received any formal approach from the applicant on the problems he was having with Jeff. Notwithstanding this evidence, however, he told the Court that he informed the applicant that if he was having trouble and, “if it got out of hand” he would discuss it with the other employee. I infer from this statement that he was then well aware of the complaint concerning Jeff.
In contrast the applicant alleges that after the interview and as a result of the matters he told Edwards, Jeff was called to see Edwards and when Jeff returned to the workshop he had “another go at” the applicant, but otherwise the work environment was quiet for about one week before the intimidation started up again.
I accept the applicant’s evidence on the abovementioned matters generally in preference to that given by Edwards because Edwards failed to make any reference to the applicant’s repeated concerns in his evidence-in-chief even though he was asked to describe the matters discussed in the various meetings between them prior to the termination. In cross-examination he reluctantly conceded some mention of these matters and in my view attempted to down play the applicant’s concerns by first suggesting that he had only complained about Jeff being “rude”. The events were of sufficient concern to the applicant to approach his manager to ask to be transferred to another job which was only a temporary position. Edwards conceded that he had a discussion with Jeff at one stage and I am of the view that that probably first occurred in late April or early May 1995.
The applicant kept on trying to do his work and on or about 5 September 1995 it was common ground that he again complained to Edwards about Jeff standing over him whilst he was working and staring at him, as well as telling him he had “come to bother him (the applicant)”. The applicant felt very intimidated by these actions and physically threatened.
Edwards agreed that on 5 or 6 September 1995 the complaint was made to him and as a result there was a meeting of all three men to discuss the problem.
What happened at that meeting is a matter of contention. Edwards said that he obtained a commitment from Jeff not to stand over the applicant whilst he was working and asked those men to discuss the problem themselves and come back to him if they could not resolve the problem. Edwards felt then that he had no evidence to substantiate the allegations which were denied by Jeff. Because he heard nothing further after that meeting Edwards took the matter no further.
On his part the applicant claims that after his first complaint to Edwards he was ostracised because no one would talk to him and at the meeting with the three of them present Edwards told the applicant he had “no guts”. Edwards denied making any statement at all to this effect.
The applicant received his first written warning from the respondent on 8 September 1995 after a meeting on 7 September 1995 with Edwards and Alan Metcalfe, a national supervisor. That meeting was organised and the date of the meeting conveyed to the applicant on 5 September 1995. Edwards conceded in cross-examination that the warning letter had been prepared by the respondent the day before the meeting and that meant that that letter was prepared on 6 September 1995.
Looked at in context it is a remarkable coincidence that the applicant received his first formal warning and a meeting to formally counsel and discipline him was arranged on the same day, 5 September 1995, as the applicant raised his second complaint concerning his work colleague’s behaviour towards him. Perry who was present in Court as the respondent’s representative throughout the hearing told the Court that he had been informed that there was a problem of intimidation with another employee, which had been the subject of discussion and the employees’ respective work stations were moved apart to help solve the problem. He was also, he said, aware that there had been meetings with the applicant about his performance and his training on a number of occasions. Perry told the Court that the company had not had the problem of intimidation before and, although it had no policy on this sort of matter, it would take such a complaint seriously.
On the evidence the applicant’s complaint does not appear to have received serious treatment at all. Despite his complaint the matter was not thoroughly investigated in the first instance because on Edwards’ evidence he did not speak to Jeff in the April/May period when the first complaint was made. Nor was there any indication that the situation was monitored or supervised closely by the state manager once he was made aware of the problem. In the end because Edwards could not substantiate the allegations he simply told the antagonists to try and work it out and come to see him if it was not resolved.
At all relevant times the respondent owed the applicant a duty to provide him with a safe place of work and an environment where he would not be subjected to physical and verbal harassment on an ongoing basis. In my view, an employer acting reasonably would have taken positive steps to fully investigate and oversee the situation.
In cross-examination the respondent’s counsel suggested to the applicant that he had taken considerable sick leave in the months he was employed. He agreed he did take some sick leave in respect to an eye injury but more importantly told the Court that he had some days off work with medical certificates when he was diagnosed as suffering from depression. It was not entirely clear from the evidence what connection, if any, there was between this condition and his employment. However, what is clear is that the applicant claimed to have been distressed when he was presenting his complaints to Edwards about the other worker; feeling then that his complaints were not adequately dealt with.
It is the applicant’s contention that when he was retrenched on 13 October 1995 he was selected by the respondent because he was viewed as a trouble maker, having made the complaints about the other worker.
In his evidence-in-chief Edwards told the Court that for the first warning meeting on 7 September 1995 and when the applicant was notified of the meeting on 5 September 1995, he was given an opportunity to have a representative present. What he did not tell the Court, and this only emerged in cross-examination and from the applicant’s evidence, is that in August 1995 the applicant, whose employment is covered by the Metal Industry Award 1984 joined his union. When the applicant was notified of the meeting in September 1995, which he believed was confined to a warning regarding an issue over a telephone call, he contacted his union delegate who Edwards agreed rang him seeking a date for the meeting on which the delegate could attend to represent the applicant. Because Metcalfe was coming from interstate and would attend the meeting, Edwards declined to rearrange the date and proceeded with the applicant unrepresented.
The written warning given on 7 September 1995 and contained in a document dated 8 September 1995 was as follows (Exhibit R1):
“This is to record that as a result of earlier counselling and a disciplinary interview held on 7 September 1995, you are officially warned in respect to your conduct/competency in the following areas:
1. Customer service requirements of your position.
2. Your competency to repair tools.
3. Your competency to repair tools within a reasonable time.
4.Communication - Your lack of communication with the Service Supervisor in regard to seeking advice on the repair of tools, servicing of tools and in regard to problem solving with tools sold by Jambro Pty Ltd.
The company expects that the foregoing aspects of your performance will be corrected. Failure to improve these areas may lead to termination of your employment.
Your conduct in respect to point 4 will be reviewed on Thursday, 14 September 1995 and your conduct/competency in respect to points 1, 2 and 3 will be reviewed on Thursday, 12 October 1995.
This warning will be placed on your personal file.”
Edwards acknowledged that there was some improvement in the areas of complaint outlined in the warning after 7 September 1995.
The applicant alleges that the abovementioned meeting and warning first came about because in receiving a phone call from a customer he pressed the pause button on the telephone and it failed to work because it was faulty. He did not know this at the time and made some remark about the customer which was heard and was the subject of a complaint to Edwards. Edwards agreed that on checking the telephone there had been a fault detected. I note that the record of interview Edwards alleges recorded the matters discussed at the meeting on 7 September 1995 and is attached to Exhibit R1, contains no reference to the applicant’s explanation for the telephone incident under the heading of communication issues. The applicant claims that when he attended the warning meeting he believed it was only to do with telephone and communication matters and was surprised and upset to be met with issues to do with his competency and the time it took for him to complete work.
I found Edwards’ evidence on the issues of competency and the time taken to repair tools rather vague. In cross-examination he conceded the applicant repaired some twenty-five tools each week. In the first three months there were ten returns on those repairs and that was a period where Edwards said he was happy with the work the applicant was performing; acknowledging his aptitude for the job. In the subsequent period to October 1995 there were some eighteen repairs returned. In comparison Jeff had returns of up to two tools per week, although he was working on different types of tools.
THE REDUNDANCY
The respondent starts to prepare its budget forecast for the following year in about August each year. The respondent’s business, it was said, is sensitive to any downturn in the building industry and that is illustrated by the downturn the respondent referred to and outlined above in the logging in of tool repairs and maintenance from March 1995 right through until October 1995. Perry contacted Edwards in about August 1995 and instructed him to look at ways of reducing the cost of the Melbourne operation. According to Perry that may include reduction of costs such as vehicles and telephones. Edwards told the Court he was also directed to look at cuts in staff and once there was a decision on what to do he took his recommendations back to Perry who made the final decision to implement the applicant’s redundancy. It seems from Perry’s evidence that the only cut back suggested to him by Edwards was the reduction of one staff member and that was the applicant. It was agreed by Edwards a sales person’s motor vehicle was replaced in the same period and there was no other reduction in expenditure in the business to otherwise accommodate the respondent’s desire to cut costs.
Perry told the Court the company had a reduction of some seven staff nationally, some of whom were redundancies and some were non-replacement of staff leaving. There were redundancies in other states prior to the budget being decided on. Perry advised Edwards of his decision to accept the recommendation a few days before he came to Melbourne on 13 October 1995 to make the applicant redundant. The recommendation was received by Perry from Edwards in late September or the first week of October. Perry decided that because of the reduction in tool services and because the other service technician had been with the company since 1991 and had what he referred to as “vastly more experience”, the applicant should go.
There was no evidence to show there were calls for voluntary redundancies or there were steps taken by the respondent to find alternative work for the applicant, or indeed to in any way mitigate or minimise the harsh effects of the termination on the applicant.
The letter of warning offered the applicant an opportunity to improve in the areas the respondent identified as wanting. It was contemplated by the letter of warning that there would be a review of three of the matters on 12 October 1995. On 10 October 1995 the applicant received a memorandum from Edwards stating the following (Exhibit A1):
“Due to other issues the meeting scheduled for Thursday October 12 1995 has been postponed.”
Edwards’ reason for cancelling the meeting with the applicant on 12 October 1995 was that by then he knew the applicant was to be made redundant and Perry was due in Melbourne on 13 October 1995 to implement the redundancy.
At approximately 9.30am on Friday, 13 October 1995 the applicant was called to a meeting with Perry and Edwards. There was no forewarning or consultation concerning the redundancy and certainly no opportunity afforded to the applicant to be represented at that meeting. Perry explained the company’s economic circumstances, told the applicant he was to be made redundant and also outlined the payments to be made to him which consisted of his accrued entitlements and four weeks’ pay in lieu of notice. It was said by the respondent that he received no severance pay ostensibly because it was the company’s policy not to pay any severance pay until one year’s service has been completed. On this last matter the respondent produced a copy of the redundancy arrangement between it and W.A. Deutsher Pty Ltd, which latter company the Court was told owns the respondent company, providing the following arrangement for the payment of severance pay (see Exhibit R5):
“... Severance Pay
Payable after one year of completed service.
Three week’s pay per completed year of service.
Pro-rata on a completed three months basis.
Maximum amount payable is 52 weeks pay.”
At the last interview the applicant was offered the opportunity to remain for the rest of the working day or leave immediately. He left, but not before he says he asked if there was a chance of alternative employment. Perry was unable to recall this request.
At the request of the Court the respondent filed a copy of the Metal Industry Award 1984. Clauses 41 and 42 of that award specifically deal with the introduction of changes to the workplace and redundancy with the following provisions:
“41(a) Employer’s Duty to Notify
(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and their union or unions.
(ii) “Significant effects” include termination of employment, major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Provided that where the award makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not have significant effect.
41(b) Employer’s duty to discuss change
(i) The employer shall discuss with the employees affected and their union or unions, inter alia, the introduction of the changes referred to in subclause 41(a) hereof, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their unions in relation to the changes.
(ii) The discussions shall commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in subclause 41(a) hereof.
41(b)(iii)For the purposes of such discussion, the employer shall provide in writing to the employees concerned and their union or unions, all relevant information about the changes including the nature of the changes proposed; the expected effects of the changes on employees and any other matters likely to affect employees provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer’s interests.
...
42(a)Discussion Before Terminations
(i) Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected and with their union or unions.
(ii) The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provisions of paragraph 42(a)(i) hereof and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the employees concerned.
(iii) For the purposes of the discussion the employer shall, as soon as practicable, provide in writing to the employees concerned and their union or unions, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of workers normally employed and the period over which the terminations are likely to be carried out. Provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to the employer’s interest.”
Clause 42(c) of the award does not provide for severance pay to be paid to employees who have not completed one year’s service. The award provides for four weeks’ pay after one year’s service and is clearly different to the provisions of the company’s policy contained in Exhibit R5, which amongst other things, allows for a pro-rata payment on a completed three months’ basis. The company’s provisions are ambiguous because it is not clear whether the pro-rata payment is confined only to any three month period after the completion of one year’s service. Notwithstanding this ambiguity, however, it does seem that some period of additional notice was paid for at termination even though the respondent was at pains to say that it did not pay severance pay because of the company’s policy not to pay it to employees of less than one year’s service.
FINDINGS
The respondent carries the burden of showing that it has a valid reason for terminating the applicant’s employment. Its case is primarily based on the operational requirements of the company, however, it is clear from the evidence that there were unresolved issues concerning the applicant’s conduct or performance and I am inclined to the view that on balance these matters coloured at least Edwards’ decision to nominate the applicant for redundancy; not to mention the applicant’s troublesome complaints concerning the other employee’s workplace conduct.
On the one hand, I am satisfied that as a result of the alleged downturn the respondent was required by its operational needs to consider cost cuts which may have involved the loss of staff. If that is so the respondent still must show that there was a valid reason for selecting the applicant for redundancy as opposed to any other employee or, indeed, any other reasonable method of cutting costs. Further, because of the extant complaints regarding this man’s conduct and performance the respondent had an obligation to afford him the opportunity of explaining his conduct and putting any exculpatory matters before it which may have included the behaviour of the other employee in order to discharge the respondent’s obligation of procedural fairness; such obligation being imposed on it by section 170DC of the Act (see the decision of the Full Court in Kenefick & Ors v Australian Submarine Corporation Pty Ltd (unreported, Nos SI 94/290, 292, 293, 294, 295, 26 March 1996) for a full discussion on the onus of proof carried by the respondent in a redundancy situation).
Accordingly, whilst I am able to find on the balance of probabilities that there was a valid reason for termination by reason of the company’s operational requirements, because of the doubts raised in my mind about the evidence given by Edwards I am not satisfied that the respondent had a valid reason for selecting the applicant for redundancy or that it afforded the applicant procedural fairness in all the circumstances.
If I am wrong in the abovementioned conclusion there is also a very clear case of breach of section 170DE(2) of the Act because of the failure to follow appropriate procedures in bringing about the termination. There was obviously no attention paid to the requirements of the award provisions. There are now a significant number of decisions in this Court which emphasise the need to observe not only the award requirements in redundancy situations but the need to forewarn and consult employees to help cushion them from the effects of a termination brought about through no fault of their own (see generally, Quality Bakers of Australia Ltd v Goulding and Another (1995) 60 IR 327, Sinclair v Anthony Smith & Associates Pty Ltd (unreported, von Doussa J, No. SI 1260 of 1995, 1 December 1995), Mitchell-Collins v Latrobe Council (1995) 60 IR 480, Goss & Ors v Fluor Daniel Power & Maintenance Services Pty Ltd (unreported, Millane JR, Nos. VI95/2459, 2463, 2464, 2468, 2469 2470, 2474, 2478, 2536, 8 February 1996) and Kilpatrick v Birko Australia Pty Ltd (unreported, Millane JR, No. VI 5669 of 1995, 12 July 1996)).
This Court does not provide a remedy in the form of severance payments to employees made redundant where they have not had the benefit of any or any adequate financial assistance to overcome the immediate financial effects of a redundancy. Again there are a number of decisions by this Court which consider the issue of severance pay, the reasons for such a payment and the potential for non-payment of severance pay to amount to a contravention of section 170DE(2) of the Act where this is considered in the context of the particular case at hand. This is so even in cases where the award and the contract of employment do not provide for any payment in the nature of a severance payment at all. It follows that if an employer acts generously in a redundancy situation making payments to alleviate the immediate financial consequences of the redundancy, such action is relevant on the question of the steps taken to mitigate or avert the harsh effects of a termination (for discussion of these matters see Leddicoat v Schiavello Commercial Interiors (S.A.) (unreported, von Doussa J, No. SI 1153 of 1995, 18 October 1995) and generally my decision in Phillips v F A & D M Gaze, (unreported, No. 5550 of 1995, 25 June 1996)).
The applicant received four weeks’ notice and was not offered the opportunity to work out that period of notice whilst seeking further employment. This was quite apart from the failure to give him timely warning of the impending redundancy. The applicant, despite efforts to find employment, remained unemployed for at least six months following the termination other than one day’s work on 29 March 1996 for which he received $125.00 gross pay. In the fortnight prior to the hearing the applicant told the Court he obtained a temporary casual position for two months, although at hearing he believed the time for working in the position could be extended in the future. What is clear from this evidence is that the applicant did not at the time of hearing have the security of permanent employment.
REMEDIES
The applicant did not seek reinstatement and this was, in any event, opposed by the respondent. Given all the circumstances of the case it would not be appropriate to return this man to the work environment where he may be required to work in close proximity to another employee he believes bullied him in the fashion described by him. Had he sought reinstatement I would have been very tempted to order this because of my real concerns about Edwards’ bona fides in the selection process. However, the circumstances before the Court lead me to the conclusion that reinstatement is impracticable and the applicant should be compensated pursuant to sub-sections 170EE(2) and (3) of the Act.
The applicant’s annual gross income at the time of termination was $23,000 or $442.31 per week. He received four weeks’ notice in lieu of compensation which exceeds by three weeks’ pay the statutory minimum provided for in section 170DB of the Act.
It is not enough to say that because the respondent had bona fide operational requirements for making cost cuts and possible employee redundancies, that it follows that the applicant’s future with the company, had the redundancy been handled in a way which did not contravene the Act, was a limited one in any event. In my view the applicant was so disadvantaged by the way in which the selection process was handled and the redundancy was implemented the appropriate amount of compensation is the equivalent of three months’ gross remuneration amounting to $5,307.72.
MINUTES OF ORDERS
THE COURT DECLARES THAT:
The termination of the applicant’s employment on 13 October 1995 contravened Division III Part VIA of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT:
Within 21 days of the date of this Order the respondent pay to the applicant compensation in the sum of $5,307.72 gross less any amount payable to the Commisioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding seventeen (17) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 18 July 1996
Applicant in person.
Solicitors for the Respondent: A.J. Macken & Co
Counsel for the Respondent: Ms M. Trevisiol
Date of hearing: 23 May 1996
Date of judgment: 18 July 1996
0
3
0