Jamie Allan Medhurst and Pallet Industries
[1994] IRCA 103
•3 Nov 1994
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - Casual employee - engagement on a regular and systematic basis for a sequence of periods of employment in excess of six months - reasonable expectation of continuing employment - casual employment not excluded from potential remedy for unlawful termination - defiance of a legitimate management order - employee stood down - refusal of offer for further casual employment based on union and legal advice - no termination by an act of the employer or at the initiative of the employer.
Industrial Relations Act 1988, S170CB, S170CC, S170DE, S170EA
Licensed Clubs Association of Victoria (1988) AILR 497
JAMIE ALLAN MEDHURST AND PALLET INDUSTRIES
No. TI 116/94
Before: Ryan JR
Place: HOBART
Date 3 November 1994
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
TASMANIAN DISTRICT REGISTRY Matter No TI 116/94
B E T W E E N: JAMIE ALLAN MEDHURST
AND:
PALLET INDUSTRIES
COURT: RYAN JR
PLACE: HOBART
DATE: 3 NOVEMBER 1994
JUDGMENT EX TEMPORE
The applicant was employed by the respondent from 6 October 1992 to 16 May 1994. The respondent's letter of confirmation of appointment describes the employment as
Pallet bearer on a casual basis -
and refers to an hourly rate of pay and also contains the following statement
As previously advised this is a casual position and there is no guarantee of regular and/or permanent work.
The employment ended on 16 May 1994. The applicant submits this was an unlawful termination and seeks remedy under division 3 Part VIA of the Industrial Relations Act 1988. The respondent contends the applicant was an employee excluded from the operation of subdivisions B, C, D and E, division 3 of Part VIA, because the applicant was a casual employee engaged for a short period within the meaning of Industrial Relations Regulation 30B(3).
In the alternative, the respondent contends that even if the court was to find that the applicant was not an employee excluded from division 3 Part VIA, no evidence has been led which establishes a contravention.
Mr McTaggart of Jennings Elliott appeared for the applicant and Mr Bill FitzGerald of the Tasmanian Chamber of Commerce and Industry for the respondent.
Mr McTaggart called the applicant as a witness and in addition relied on the file documents, exhibits and submissions.
Mr FitzGerald called Mr Stephen Marshall, operations manager, Pallet Industries (a Division of Devonfield Enterprises). Mr FitzGerald likewise relied on file documents, exhibits and submissions.
The applicant was employed on a regular and systematic basis for 25 weeks from 6 October 1982 to 26 March 1982. Indeed, for 15 of these weeks he was employed for 38 hours, two weeks for 45 hours, seven weeks for 30.4 hours, and one week for 22.8 hours. In the 26th week ending on 2 April 1993, he was employed for two days or 15.2 hours. Then there was no work for several days until 13 April 1993. From the 13 April 1993 to 4 June 1993, the work was quite regular but in six of these eight weeks it was not really full-time.
After 10 days of no work between 5 June 1993 and 14 June 1993, there then followed 31 weeks of quite regular employment until workers compensation leave began on about 21 January 1994. During these 31 weeks the applicant worked 11 weeks of 38 hours and eight weeks of more than 38 hours.
The applicant could not be categorised as a casual employee engaged for a short period within the meaning of Regulation 30B(3)(a). He was clearly engaged on a regular and systematic basis for a sequence of periods of employment during a period well in excess of six months.
Be that as it may, the respondent argues that the applicant did not have and could not have had a reasonable expectation of continuing employment by the employer.
The respondent seems to rely on the way in which casual employees at Pallet Industries were employed and the specific advice given to the applicant. Firstly, there is exhibit A1, the letter confirming the appointment of the applicant to Devonfield's Pallet Industries. This letter was signed by the executive director of Devonfield Enterprises, Steve Daley. The letter was addressed to the applicant, requested the applicant to return a signed copy and advised him that the receipt of the signed copy and a completed employee details form would be taken as acceptance of his appointment to the position of pallet repairer.
The respondent relies at least in part on a particular statement in that letter in arguing that the applicant is an excluded employee under Regulation 30B. The statement is:
As previously advised this is a casual position and there is no guarantee of regular and/or permanent work.
Secondly, although less was made of this, two other letters from Steve Daley to the applicant make references as follows, (exhibit A2, 27 October 1992):
Your work performance as a pallet repairer on a casual basis.
(Exhibit A3, 22 March 1993):
Your rate of pay as a casual pallet repairer.
The respondent also seeks to rely on responses by the applicant in evidence to the effect that he was employed on a casual basis and had been told that he would not be paid when work was not available, and understood that he was not to receive leave and accepted that he was only to work when work was available. The respondent also relied on the undisputed evidence that the applicant had requested but had been refused permanent employment.
All of this overlooks the fact that it is not all types of casual employment which are excluded from potential remedy for unlawful termination under division 3 Part VIA of the Commonwealth Industrial Relations Act 1988. Mr McTaggart conceded that the applicant was a casual employee.
The issue is whether the applicant was a casual employee excluded from the requirements for termination of employment as a casual employee engaged for a short period within the meaning of Regulation 30B(3). I have already found that his employment was an engagement on a regular and systematic basis for a sequence of periods of employment during a period well in excess of six months. The secondary issue then is the question of whether the applicant had a reasonable expectation of continuing employment by the employer.
What was the applicant's reasonable expectation? It is not to the point that he was advised in writing that there was no guarantee of regular work. It is not to the point that he accepted that there was no guarantee of regular work. The fact of the matter is that the applicant was provided with regular work and, apart from a few small breaks, he was provided with regular work from 6 October 1992 until he went on workers compensation leave on about 21 January 1994. Again, on his return from workers compensation leave on or about 12 March 1994, he was provided with regular work until he had two days workers compensation leave on 8 and 9 May and two days personal leave on 10 and 11 May.
I am of the view and find that the applicant had a reasonable expectation of continuing casual work on a regular and systematic basis and that expectation was of work up to 38 hours a week, sometimes more, sometimes less, sometimes no work, but a reasonable expectation of continuing work. I find that the applicant had such a reasonable expectation until his employment ended and at least until 16 May 1994 when the applicant states he was told his services were no longer required and Stephen Marshall, the respondent's operations manager, states that he told the applicant, "No casual work was immediately available."
Having reached this conclusion it is not necessary to consider whether the applicant was employed under the Tasmanian Timber Merchants Award. Certainly Mr Marshall thought this was the case and Mr Daley's letter of appointment of 9 October 1992 refers to the applicant's terms and conditions of employment as being in accordance with the Timber Workers Award. However, while the terms and conditions of the applicant's employment may be of relevance in determining whether any ending of that employment by an act of the employer constituted a contravention of division 3 Part VIA, the fact of whether or not the applicant was actually employed under the State Award is of less relevance.
If the employment was ended by an act of the employer, the events leading up to the ending of the employment may well cast light on whether there was a termination of employment which attracts remedy.
It is undisputed that the applicant returned to work on the morning of 12 May 1994 after two days workers compensation leave followed by two days personal leave granted with the permission of the operations manager, Mr Marshall. Strictly speaking, the applicant was not entitled to leave as a casual employee, but there is no doubt his absence on 10 and 11 May was with the permission of the employer.
It is also undisputed that Pallet Industries is a division of Devonfield Enterprises and that the business is a supported employment business which provides employment for intellectually disabled persons and that commercial elements of the enterprise include the production of goods for resale and, in the case of Pallet Industries division, the repair of pallets for commercial clients in the food and agricultural industries.
Some employees in Pallet Industries are disabled; others are not. Some employees are permanent and full-time; others are casual and may often work full-time but sometimes work part-time and sometimes do not work at all if there is not work available.
About 10.15 am on 12 May 1994, the operations manager, Mr Marshall, was working on a roto-shear when a pallet repairer, to use Mr Marshall's words, "threw a pallet in frustration." A fork-lift driver stopped and again in accordance with Mr Marshall's uncontested evidence, attempted to lift the pallet, that is, the thrown pallet which was blocking the progress of the fork-lift. Mr Marshall shouted to the driver that he was to leave the pallet where it was because, presumably as a disciplinary measure, Mr Marshall was insisting that the pallet should be picked up and removed by the employee who had thrown it in the first place.
Again, the uncontested evidence of Mr Marshall is that the fork-lift driver had a blank look on his face and did not respond a second time to a shouted direction to leave the pallet where it was. Mr Marshall then directed a disabled employee, who was working beside him, to turn off a radio which according to the applicant was always on and was located near the crib room. It is conceded by both Mr Marshall and the applicant that the radio was turned off by an employee and it is reasonable to assume this was the employee who had been directed to do that by Mr Marshall. Both Marshall and the applicant agree that the former then shouted at the latter that the radio was to be left off.
Marshall's evidence is that he decided that this was necessary in the interests of safety. No evidence was given as to other noise in the workplace, but it seems clear that the task of pallet repairing and the operation of machinery including at least a roto-shear and one or more nail guns, create some noise. Again, it is uncontested that after smoko when Marshall had left the workplace, the applicant turned the radio on again. It is also uncontested that when Marshall shouted his direction to the applicant that the radio was to be left off, he did not go into any detail and did not explain at that stage that the direction was based on maintaining or assisting to maintain a safe workplace.
Be that as it may, it is clear that the applicant defied the operations manager's direction and did so soon after the manager left the workplace. The manager returned at about 12.30 pm and finding the radio on, turned it off, and returned to what I thought he described as the “bearing machine”. He may have said “shearing machine”. In any event, the impression I gained is that Marshall returned and continued operating the roto-shear.
The applicant in his evidence states that Marshall at this stage said nothing to him but turned off the radio, and according to the applicant, Marshall gave him, the applicant, a “black look”.
At about 4 pm, Marshall summoned the applicant and he states that he was “totally annoyed that his instruction to leave the radio off had been defied" and that he told the applicant that "it was a matter of safety." Marshall concedes that the applicant pointed out that it had always been the practice to allow the radio to be on but that as manager he had indicated that he was not interested in past practices but was concerned about safety and the respondent's duty of care and that the volume of the radio breached safety requirements in that instructions could not be heard. Marshall also stated that he told the applicant that he was not to attend for work on the next day, Friday, 13 May. The applicant has not contested this version of events and I accept that this is what occurred and that Marshall gave a true and accurate description of these events as they occurred on Thursday, 12 May 1994.
At about 8 am on Friday, 13 May, another employee, who was also a union representative, Steven Jones, approached Marshall. The applicant was with Jones. Jones advised Marshall that the applicant was at work and asked whether work was available for him. Marshall replied in the negative, indicating that his decision of 12 May stood. The result was that work ceased immediately and it would appear that all employees walked out. At about 10.45 am, Mr Scot McLean, an industrial officer of the Tasmanian Branch, Forestry Division, Construction Forest Mining and Energy Union, discussed the events of 12 May with Mr Marshall. It appears from the applicant's evidence that he was present. Both the applicant and Marshall agree that an agreement was reached that the radio could be used at a lower volume although Marshall's evidence is that he was still concerned that legitimate and lawful instructions might not be heard.
The exact nature of the agreement as it affected a return to work is not clear. The applicant suggests that the agreement envisaged all employees returning to work on Monday, 16 May. Marshall's evidence is simply that he believed the issue had been resolved and put aside, and that as there was not by midday a full complement of workers available, he agreed with McLean, that work could recommence on Monday, 16 May. Both the applicant and Marshall agree that all workers attended work at Pallet Industries at 8 am on Monday, 16 May and were then asked to attend a meeting at Devonfield Enterprises.
The executive director, Steve Daley, addressed the meeting. The applicant claims that Daley referred to workers compensation claims and that the company would close if there were too many more claims. He also claims that Daley indicated all workers would be put back on and that the permanents remained at work that day and the casuals went home but were paid for four hours. It seems curious to me that the casuals would have been sent home if part of the agreement was that they all recommence work immediately. Marshall states that union advisers had agreed to attend the meeting and that in his presence Daley discussed the issues of 12 and 13 May and indicated that:
(1)the leaving of the site on 13 May constituted a breach of the contract of employment
(2)this action on the Friday had put Pallet Industries in a precarious position
(3)a client who had been expecting repaired pallets that day had made alternative arrangements for the supply of pallets
(4)the demand on Pallet Industries had thereby diminished
(5)as a result there was no longer an immediate requirement for casuals
(6)as an expression of bona fides, all casual employees would be paid for four hours that day
(7)all casual employees were to contact Marshall in respect of further work.
To the extent that there is a conflict as to what happened at the meeting on 16 May, I accept the evidence of Stephen Marshall, the operations manager at Pallet Industries.
The applicant's evidence is that on the evening of Monday, 16 May, he contacted Marshall's office and Marshall's assistant, Miss Tania Kingshott, told him that "No work was available on Tuesday, 17 May or Wednesday, 18 May." The applicant also states that he telephoned Marshall on the afternoon of Wednesday, 18 May, to ascertain whether work was available. Marshall agrees that this occurred, but the two witnesses give very different versions of that telephone conversation. This is a crucial issue.
The applicant states that Marshall said that the applicant's services were no longer required. The inference is clearly, if the applicant's evidence is accepted, that Marshall was at that time indicating that the applicant's services were either never required again or not required in the foreseeable future. If the court was to accept that Marshall said this, then it would conclude the services of the applicant, as a rather long-term casual employee engaged till then on a regular and systematic basis from 6 October 1992 to 12 May 1994, had been terminated and the court would then need to consider whether that termination was valid and even if otherwise valid, whether the termination was harsh, unjust and unreasonable.
However, Marshall vehemently denies that he ever said that the applicant's services were no longer required. His evidence is that the applicant took the initiative in the conversation and asked a number of questions, including a direct question as to whether he had been sacked. Marshall states that he emphatically replied that the applicant had not been sacked and was “on the records” as a casual employee. Marshall maintained this position in cross-examination. In evidence-in-chief, Marshall indicated that he had advised the applicant that he could make no commitment of work for the applicant and he used the words in referring to availability of work that he was "still under the guidance of the client." The court took this to be a reference to the client who had made alternative arrangements when repaired pallets were not delivered on Friday, 13 May (or were not delivered directly after 13 May because of the work stoppage on 13 May).
Marshall admitted that the applicant suggested other casuals present prior to the 13 May stoppage had been re-engaged and that the applicant further suggested that he and Jones should have been given preference in terms of re-engagement. Marshall did not deny that some of the casuals had been re-engaged on 18 May. Indeed, in cross-examination he identified a Mr Burr and a Mr Griffiths as casual employees re-engaged on that date and Mr Gleeson as a casual employee re-engaged on 29 June, and Mr Welsh engaged in August 1994, (in fact, in a position offered to the applicant and confirmed in a letter of 22 August 1994, exhibit A5).
I found Mr Marshall an impressive witness with remarkable recall of Pallet Industries employees and the date of their employment and re-employment. Other casual employees employed and the dates of employment as given in cross‑examination by Marshall included Gude and Cass, (August 1994), and Cattling, (October 1994).
In evidence-in-chief, when describing the telephone conversation with the applicant in the afternoon of Wednesday, 18 May, Marshall indicated that he told the applicant on that occasion that he considered that it was a “production prerogative” as to what casuals were to be employed or in this case, re-employed.
He explained the desire to improve productivity and promote team unity. (I am not suggesting he explained this to the applicant. He explained this in his evidence in the court). He explained the desire to improve productivity and promote team unity and the importance in a special workplace where disabled and able worked together, of teams of two or more workers. In other words, Mr Marshall gave evidence of a desire to employ the most productive teams.
Wherever there is a conflict between the evidence of the applicant and the evidence of Marshall, the court has preferred the evidence of the latter.
Mr McTaggart has argued that the fact that the applicant obtained from the respondent, albeit at his own request, an employment separation certificate dated 19 May 1994, is strongly suggestive of a termination of employment on 18 May 1994. The certificate was tendered by the respondent as exhibit R1. However, the applicant in his own evidence conceded that he had sought such a certificate in the past during a short period of work unavailability at Pallet Industries. Indeed, the respondent tendered this certificate as exhibit R3, and that certificate was dated 25 May 1993 and refers to a period of employment from 13 May 1993 to 24 May 1993. The applicant admitted that he sought such certificates to facilitate applications to the Department of Social Security for unemployment benefits
I have concluded that:
(1)the respondent did not terminate the applicant's employment on 18 May 1994 but as a disciplinary measure determined not to offer him work on Friday, 13 May after a direct defiance by the applicant of a legitimate management order on Thursday, 12 May
(2)as a result of a stoppage of all employees on Friday, 13 May, casual employees were not offered work on Monday, 16 May or Tuesday, 17 May although all casuals were paid for four hours work on Monday, 16 May
(3)on and from 18 May, the respondent chose to offer available work to some casual employees and not to others
(4)there is no evidence as to whether the respondent offered the applicant work or attempted to offer the applicant work in the three months from 18 May 1994 until mid-August 1994 and no evidence that the applicant sought work in that period.
Mr FitzGerald made an attempt to elicit evidence in respect to that May/August period but Mr McTaggart successfully objected on the legitimate ground that these were matters which could have been put to the applicant when he was giving evidence and that these matters were not put to him. The position is that there is no evidence of attempts to offer the applicant work in that three month period and no evidence of the applicant seeking such work.
However, there is clear evidence both from Mr Marshall and the applicant that the respondent did offer the applicant short-term work operating a bearer machine in conjunction with a co-worker from 29 August 1994 to 9 September 1994, and that continued work thereafter was to depend on the availability of work and the attitude and performance of the employee and that minimum targets or quotas were set. The details are set out in the respondent's letters of 22 and 25 August, exhibits A5 and A6.
It is also clear that the applicant declined this offer on the basis of union and legal advice. Furthermore, during the hearing Mr Marshall indicated that work is still available for the applicant at Pallet Industries under the sort of conditions set out in exhibits A5 and A6.
I have considered it necessary to deal with the conflicting evidence on the facts in this case in such detail as to risk tedium in those subjected to it, but having found the nature of the casual employment was not excluded from the operation of subdivisions B, C, D and E, of division 3 of Part VIA, it was essential to determine whether the respondent terminated the applicant's employment.
I am mindful of the body of case law suggesting that where there is a regular casual employee there can be a dismissal from employment and I refer particularly to the authorities cited in the appeal by the Licensed Club Association of Victoria (1988) AILR 497 and for that matter, to my own decision of 14 October 1994, Maggs and Victorian Art Centre Trust VI 261 of 1994. However, there can be no termination within the terms of division 3 Part VIA except by an act of an employer.
I find the respondent did not terminate the applicant's employment and the application for remedy under section 170EA is dismissed.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 9 November 1994
Appearances:
Counsel for the Applicant : Mr. McTaggart
Solicitor for the Applicant : Jennings Elliott
Advocate for the Respondent Mr. W. Fitzgerald
Tasmanian Chamber of Commerce and Industry
Date of Hearing : 2 and 3 November 1994
Judgment : 3 November 1994
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