John Franklin Douglas v Tarenberg Pty Ltd
[1994] IRCA 120
•24 Nov 1994
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 1104 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N:
JOHN FRANKLIN DOUGLAS
Applicant
A N D
TARENBERG PTY. LTD.
(t/as SIMCOCKS BUS SERVICE)
Respondent
Reasons for Decision - delivered ex tempore
24 November 1994 PARKINSON JR
This is an application brought pursuant Division 3 Part VIA of the Industrial Relations Act 1988 (“the Act”).
In this matter the applicant alleges that the termination of his employment by the respondent was:
A termination of his employment at the initiative of the employer;
A termination which was without valid reason;
A termination which was harsh, unjust or unreasonable.
For those reasons the applicant contends that the termination was unlawful in that it contravened Div 3 Part VIA of the Act.
The respondent contends that there was no termination of employment and that the applicant in fact resigned his employment. It further contends that there was never any threat of termination of employment made by the employer, and that what occurred was merely a mutual agreement between the parties in respect of the employment as to a “parting of the ways”. The respondent therefore contends that there is no basis for the application made.
It is appropriate to outline the circumstances of the termination of the employment to ascertain at whose initiative the employment ceased.
It is common ground between the parties that the applicant commenced employment with the respondent in October, 1991, initially as an emergency school bus driver. Ultimately he was appointed to a regular position termed “casual driver”.
The hours worked by the applicant were 7.45am to 9.30am and 2.30pm to 5.00pm each day during each of the school terms. It is not disputed that the applicant worked these hours upon a regular basis during the period of the employment. During the period between those rostered hours, the applicant would attend to his other occupation of farming.
On 27th June, 1994 the applicant attended at his place of employment and was in the proximity of the bus he was taking out that day, when a guard dog kept on the premises by the respondent attacked him and bit him on the calf. The applicant’s evidence was that he sheltered in the bus and then drove the bus to the fuelling point, fuelled it and left on his round.
The respondent gave evidence that he had in fact witnessed the attack and that he had called the dog off. His evidence was that he did not speak to the applicant about the incident until after the applicant returned from his round and raised the matter with the respondent. The respondent took no steps to inquire as to the applicant’s well being at the time of the attack, notwithstanding that he had witnessed the dog biting the applicant.
The applicant gave evidence that he attended upon a doctor and was given a tetanus injection in connection with the dog bite. His evidence was that upon his return to his place of employment he spoke to the respondent’s manager Mr. Simcocks about being “unable to continue to work with the dog around”.
The evidence of the applicant, which was undisputed, was that the respondent’s guard dog caused him great concern as to his physical safety, and that he had in fact complained of this to the respondent. His evidence was that the dog, which had often roamed free on the respondent’s premises, was aggressive towards himself and others.
Mr. Simcocks conceded that such a complaint had been made by the applicant to him at least a week prior to the biting incident. His evidence was that he had taken steps to chain the dog up when in the presence of the applicant. The respondent conceded that the dog was apparently aggressive towards the applicant, although he did not concede that he was aggressive towards other persons. It was implicit in the evidence of Mr. Simcocks that there must have been some reason attributable to the applicant that caused the dog to act so aggressively towards him. The respondent did, however, acknowledge that the dog would confront strangers coming onto the premises, in particular by chasing and biting at their vehicles. He also acknowledged in his evidence that he had received complaints from other persons in relation to the dog.
The applicant’s evidence was that on the day of being bitten by the respondent’s dog, and upon his return to his place of employment after he had finished his morning run, he spoke to the respondent’s manager Mr. Simcocks about being “unable to continue to work with the dog around”.
The applicant says that the respondent replied “well go then”. This is denied by Mr. Simcocks. His evidence was that he said “well I’m not getting rid of the dog”.
The evidence is that the respondent then made the following statement:
“Perhaps we should think about going our separate ways”. It was the respondent’s evidence in his affidavit that the applicant agreed with that proposition. The applicant does not deny that he agreed, but says that there was no choice in the circumstances. The respondent, however, did say in oral evidence that the applicant did not actually agree, rather that he just nodded his head and mumbled agreement.
The issue that arises in this case is what is the meaning of the term “termination” in S170EA of the Act, and what is the meaning of the term “at the initiative of the employer”, which is the termination to which the Court is directed by virtue of the operation of S170CB and Article 3 of the Convention Concerning Termination of Employment at the Initiative of the Employer, which is Schedule 10 of the Act.
It is clear from various authorities of this Court, in particular the decision of Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 and the decision of Gray J in Association of Professional Engineers, Scientists and Managers Australia v Skilled Engineering (1994) 122 ALR 471 that, in considering an application pursuant to S170EA, it is the act which brought about the termination of the employment with which the Court is concerned.
In Grout v Gunnedah Shire Council, ( an unreported decision of Moore J, 30 September 1994) his Honour, in considering the question of whether there had been a termination at the initiative of the employer or a resignation, said at pages 38-40 :
On the approach of Wilcox CJ it is necessary to ask did the employer terminate the employment relationship and on the approach of Gray J it is necessary to ask whether the employer has done some act terminating or purporting to terminate the employment. On either approach the answer is, in my opinion, the same in this matter...
Division 3 is intended to provide employees with a statutory remedy in the event of termination. It constitutes, in this respect, beneficial legislation that should be construed liberally...
I have already said that Div 3 concerns terminations at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Article 3 of the Convention which speaks of “termination...at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Division 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately lead to the employer dismissing the employee. However, that situation
and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.
In the present case the respondent did two things that fundamentally affected the employment of the applicant to either terminate it in adopting the approach of Wilcox CJ, or purportedly to terminate it adopting the approach of Gray J.
I have considered the above decisions in relation to question of whether there was, in this case, a “termination of employment at the initiative of the employer”. I have also considered the principles applicable to constructive dismissal, and am of the view that, in this case, there was in fact an act of the employer which terminated the employment relationship. That act was the failure of the employer to comply with its well established contractual obligation to provide an employee with a safe system or place of work. It was this failure which constituted a repudiation by the employer of the contract and thereby resulted in the termination of the employment at the initiative of the employer, in the sense contemplated in the decision of Wilcox CJ in Siagian.
Further, the continued failure on the part of the employer at the time of the complaint by the applicant to take any positive action in relation to the dog made it apparent that the applicant had no real choice in the matter but to accept the termination of the employment. The conduct of the employer in the circumstances of the dog attack, combined with the verbal proposition regarding the “parting of the ways” referred to above, in my view constituted a constructive dismissal and thereby a termination of employment at the initiative of the employer.
In the circumstances of this matter no valid reason for the termination of the employment was raised by the respondent, and I do so find.
Having regard to my finding that the respondent did terminate the employment without valid reason, I turn now to consider the question of the appropriate remedy pursuant to S170EE of the Act.
It has been submitted by both parties in this proceeding that an order of re-instatement would be impracticable. The decision of the Chief Justice in Nicolson v Heaven & Earth Gallery Pty Ltd (unreported, 20 September 1994) and the various matters cited therein, were relied upon by the parties as relevant to the question of whether reinstatement would be impracticable in this proceeding. Reasons included in the applicant’s submission were the fact of the likely continued presence of the dog on the premises, and the present business arrangements of the applicant which now occupy his full time and attention.
The applicant has contended for an amount of compensation in the sum of
$ 9,204.00, which amount is constituted by $ 354.83 multiplied by the maximum available to the applicant pursuant to the provisions of S170EE(3) of the Act. This amount is submitted to be based upon the gross amount of weekly earnings the applicant would have earned had his employment continued until the end of the 1994 school year. This amount was based upon a divisor of the amount of earnings of applicant recorded in the group certificate for the previous 12 month period (Exhibit H1). The amount was a gross amount.
The respondent contends that any award of compensation should be determined by reference to the net amount of what is the actual amount of weekly earnings of the applicant. The respondent contends that this amount was $ 243.05 per week. The additional earnings were comprised of charter and other operations of which there is no guarantee or continued expectation. It is put by the respondent that, at best, the reality of charters was one per month.
I am not satisfied that the Exhibit H2, which was the payslip provided by the applicant, was related to the relevant employment period. I am unable to be satisfied as to the extent and nature of the charter operations and, in any event, I am not satisfied, having regard to the business commitments of the applicant, that such additional work would have continued to be undertaken by him after the date of the termination of employment.
I am satisfied that the appropriate remuneration to be considered for the purposes of any award of compensation is the amount of weekly earnings set out in Exhibit TH1, that amount being $ 285.00 per week. I am satisfied, having regard to the nature of the remedy to award compensation, that the amount awarded should be in a gross amount.
The applicant’s ceased working for the respondent on Friday 1st July, 1994. I am satisfied that he received payment upon termination in respect of a further two week period to 15th July, 1994. I am satisfied that the employment would have been likely to have continued on its former basis until the end of the current school year. I am of the view that the fruition of the applicant’s own farming business arrangements would have been likely to impact upon the continuance of his employment beyond that time. I have had regard to the applicant’s ongoing business arrangements, including the fact that the commitment which has been made to those arrangements is, and has been since November, 1994, a full time commitment. I have also had regard to the fact that this business commitment is one basis upon which the applicant has submitted that reinstatement is not practicable. I have concluded that an award of compensation ought to be made in the circumstances in respect of wages lost during the period 15th July, 1994 to the end of October, 1994 inclusive. The amount ordered in compensation is the sum of $ 4,332.00, which is a gross amount.
The orders of the Court will be:
That the termination of the applicant’s employment by the respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
That the respondent pay to the applicant compensation in the sum of $4,332.00.
That such payment be made within 21 days of the date of this order.
I certify that this and the preceding nine (9) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.
Associate:
Dated: 24 November 1994
Solicitors for the Applicant: Slater & Gordon
Solicitor appearing for the applicant: Ms. K. Hawkins
Solicitors for the respondent: M. Davine & Co.
Counsel appearing for the respondent: Mr. T. Hurley
Date of hearing: 24 November 1994
Date of judgment: 24 November 1994
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