John Scott and Westmeats Pty Ltd (Formally National Cold Storage)

[1994] IRCA 31

0IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 860/94

B E T W E E N:  JOHN SCOTT

AND:

WESTMEATS PTY LTD (FORMALLY NATIONAL COLD STORAGE)

COURT:                  J.A. RYAN, Judicial Registrar
PLACE:                   MELBOURNE
DATE:  12 September 1994

REASONS FOR JUDGMENT

THE EMPLOYMENT

John Scott obtained a certificate as a forklift operator in 1989. He has had considerable experience in that capacity primarily in the textile industry.

In April 1994 he was unemployed. He responded to an internal CES job centre advertisement for a forklift driver at the respondent's premises in Thomastown. He and others were interviewed. He was successful and commenced duty on 5 May.

THE TERMINATION

On 8 June he was given oral notice that there was not enough work for him. He worked out the week of the notice and ceased employment on 15 June. On or about 25 June he became aware of an advertisement on page 77 of the classified pages of the Sun Herald of that date. The advertisement reads as follows:-

"Forklift operator/general hand
for Northern suburbs cold store. 38 hour week plus overtime. Must have DLI licence. Some heavy lifting required. Cold storage experience essential. Phone Stephen on Monday. 465-3222".

The telephone number is that of the respondent's Thomastown business and the "Stephen" referred to in the advertisement appears to be the employee of the respondent company who interviewed and employed the applicant on 5 May.

APPLICATION FOR REMEDY

On 29 June the applicant filed an application under Section 170EA seeking reinstatement and compensation on the grounds that the termination of his employment by the respondent was unlawful.

I

His affidavit in support of his application contains, in paragraph 3, the following statement of belief as to why he considers the termination of employment unlawful.

"As I was told due to lack of work. The job 1 was doing has now been advertised again in the Sun on Saturday the 25 of June. This is only two weeks after being put off".

DIRECTIONS HEARING 12 AUGUST 1994.

The applicant appeared at the directions hearing on 12 August. At that stage no person appeared on behalf of the respondent. Registrar Morris adjourned the matter to 5 September and, at his direction, a letter dated 15 August issued from the Victorian District Registry. The letter was addressed to National Cold Storage, 73 High Street, Thomastown and read as follows:-

"Re John Scott v National Cold Storage.
At a directions hearing on 12 August 1994 at which there was no appearance by you the above matter was adjourned to 5 September 1994.

Pleas note at that time there will be the possibility of the matter being finally heard and determined".

HEARING 5 SEPTEMBER 1994

When the matter was called with many others in the Industrial list for directions hearings on 5 September the applicant appeared unrepresented and in person and the General Manager of Westmeats Pty Ltd Mr. Martin Wieselmann appeared unrepresented and on the basis that Westmeats Pty Ltd was the real employer, having taken over the business of National Cold Storage some considerable time before the applicant's employment in the Cold store on 5 May 1994.

Having noted the terms of the registry letter of 15 August and having drawn to the attention of the parties the reference to the possibility of the matter being finally heard and determined, the matter was stood down and reached again early in the afternoon. By that time, the applicant had appointed Maurice Blackburn and Company as his solicitors and Mr. Mark Irving of that firm announced his appearance.

At that stage, Mr. Wieselmann sought advice from the Court as to whether given the legal representation so recently obtained by the applicant, the respondent should obtain legal representation. Mr. Wieselmann was advised that if he wanted to obtain legal representation an adjournment would definitely be granted for that purpose. However Mr. Wieselmann elected to proceed with the hearing and Mr. Irving called the applicant to give evidence.

REFERRAL FOR CONCILIATION - SECTION 170EC

Soon after the applicant's evidence began the Court became aware that the application had not been referred to the Australian Industrial Relations Commission pursuant to 170EC (it having been incorrectly assumed that a direction for referral had been made at the first directions hearing).

The parties were immediately advised of the terms of section 170EC and Mr. Irving and Mr. Wieselmann both made submissions that this was a matter where the Court could be satisfied that it was not appropriate to refer to the Commission. Both parties were present. Both parties wanted the matter resolved quickly. Both parties wanted to avoid the costs associated with delay and neither party considered a referral to the Commission, and the subsequent delay, were likely to lead to a successful conciliation.

2

Furthermore Mr. Irving indicated that his client was scheduled to recommence employment as a forklift operator with another employer on Monday 12 September, was no longer seeking reinstatement and, like the respondent, wanted the matter resolved as quickly as possible.

In the circumstances, the court was satisfied that it was not appropriate to refer the matter to the Commission.

EVIDENCE AT THE HEARING

The applicant's case was confined to his evidence, the affidavit in support of the application and the following exhibits

A I - A certificate of qualification as a forklift operator issued in 1989

A2 - Page 77 Sun Herald Saturday 25 June 1994.
A3 - A statement of employment and weekly earnings issued by Westmeats Pry Ltd on 13 May 1994.

The respondent's case consisted of sworn evidence from Mr. Wieselmann and submissions made by him.

There is very little conflict in the evidence but a marked difference in interpretation as to what flows from the evidence.

UNCONTESTED EVIDENCE It is clear that

(1)       The applicant was employed full-time and entitled to payment on a weekly basis
pursuant to Clause 6(a) of the Federal Meat Industry Award 1981.

  

(2)       The company has, in the past, and on this occasion, availed itself of the advantages
which can flow from recruiting through the Jobstart program

  

(3) The applicant was selected after interview.

(4)       The position was a third forkdriver position and was established to cater for
additional work demands created by an export contract for South Africa and was
expected to be required for at least two years.

  
  

(5)       In the six weeks in which the applicant occupied the position about 80% of the duties
involved operating a forklift and shifting cartons of meat within the cold store and the
remainder of the duties were of a labouring or general hand variety and involved
some physical lifting and movement of meat cartons.

  
  
  

(6)       in the six weeks in which the applicant occupied the position no person ever
suggested that the applicant's performance was inadequate or deficient in any
particular.

  
  

(7) in the five weeks in which the applicant occupied the position before he was advised on 8 June that there was insufficient work to continue his employment the applicant was never consulted or counselled or advised about the possibility of a sudden redundancy.

(8)       At no stage before or after 8 June did the respondent discuss with the applicant any
possible part-time or full-time alternative options to what the respondent claims was a
genuine redundancy.

  
  

3

(9)      On 25 June, ten days after the applicant was terminated allegedly on the grounds of
redundancy, a position virtually identical to that previously occupied by the applicant
was advertised in the Sun Herald.

  
  

(10)     The position advertised on 25 June was filled quite quickly and still exists and is still
occupied.

  

(11)     Supervisory staff at the respondent's Thomastown premises raised the possibility of
the applicant being considered for the position advertised on 25 June but Mr.
"  Wieselmann, as General Manager, decided that the applicant should not be
considered and made this decision on the basis of advice he had received that the
applicant had an injured shoulder which restricted or might restrict the performance
of the general hand aspects of the duties.

  
                  
  
  
  

DIFFERENCES IN INTERPRETATION

The differences in interpretation of the evidence are as follows:-

(1)      The applicant alleges the termination on 15 June was not on the grounds of genuine
redundancy and that the speedy advertising and filling of the same position and the
failure to consider the applicant for that position support the contention that there
was never a genuine redundancy. The applicant gave evidence that when he was
terminated he was advised that if alternative work became available he would be
contacted.

  
  
  
  
  

(2)       On the other hand, the respondent alleges that an increase in duty in respect of a
contract for export of meat to South Africa created a sudden and unexpected
diminution in the work for forklift drivers and led to the redundancy.

  
  

The respondent explains the advertisement of 25 June as the creation of a more flexible position with the potential for a greater proportion of the duties to be general hand duties.

The respondent also claims that while the third forklift operator position is permanent it was originally created just after the applicant was made redundant when one of the other two longer-term forklift operators demanded six weeks leave with an ultimatum that if he did not obtain the leave he would resign.

(3)The applicant, in the alternative, claims that even if the Court were to accept that the termination of 15 June was the result of a genuine, if short-lived, redundancy, the termination was harsh and unjust and unreasonable because the applicant was not advised until 8 June and was never counselled or assessed or considered for alternative part-time or full-time employment and was never contacted or genuinely considered for the position advertised on 25 June.

(4)       The respondent denies that the procedures adopted resulted in a harsh; unjust or
unreasonable termination but is confronted with a substantial difficulty in
demonstrating that the applicant was treated with procedural fairness.

  
  

The respondent seems to imply that the applicant was on probation and was therefore an employee excluded from the operation of sub-divisions B,C,D and E of Division 3 of Part VIA of the Act.

PROBATION

The difficulty is the lack of evidence that the applicant was ever placed on probation or told he was on probation.

Mr. Wieselmann stated that the applicant should have been told he was to be on probation and that, if the company followed the usual practice, he would have been informed accordingly.

The applicant on oath stated quite clearly that no such advice was ever given to him.

There is no evidence to contradict the applicant. There is no evidence to suggest that the applicant was on probation or that any period of probation was determined in advance and was reasonable having regard to the nature and circumstances of the employment. Furthermore, the court notes that at no stage was it ever suggested to the applicant that his performance was inadequate or deficient in any particular.

CONCLUSIONS

On 8 June the applicant was told that there was not enough work to justify his retention. On 15 June he left having worked out a weeks notice. On 25 June the respondent advertised a very similar position. The applicant considered it was virtually the same position as that which he had occupied. The respondent denied this and stated that the inclusion of “general hand" duties meant that it was a different and more flexible position.

A question of substantive unfairness does not arise if the termination is accepted as a genuine redundancy created by the huge increase in South African duty and resultant loss or diminution in the work associated with the South African contract.

If the termination was not due to redundancy but was for some other unspecified reason, then there is a real likelihood that the applicant was denied both substantive and procedural fairness.

Given the somewhat unsatisfactory state and limited nature of the evidence, I have decided, after some hesitation, to give the respondent the benefit of the doubt. I have treated the decision to terminate, orally conveyed to the applicant on 8 June, as a decision based on the loss of the South African work and as a decision to terminate on the grounds of genuine redundancy. Frankly, this is a generous treatment which accords the respondent the benefit of any doubt in the evidence.

However, I have also concluded that the respondent did not accord procedural fairness to the applicant. The applicant was not consulted. There was no exploration of other options with him. No enquires were made as to alternative work which might have been found for the applicant.

in cross examination Mr. Wieselmann firmly rejected any likelihood of alternative work. The inference I draw from his evidence on this point was that no enquires were made as to alternative work because at that time there was no alternative work. Yet on Mr. Wieselmann's own evidence, alternative work emerged between 15 and 25 June and was the subject of the advertisement of 25 June. Again, on his evidence it was alternative work in the sense that it involved forklift driving, some duties as a general hand and some heavy lifting.

FINDING

In the circumstances I find that

(!) The termination was harsh and unreasonable.

(2) Re-instatement is not sought but is in any event impracticable.

(3)       Compensation is an appropriate remedy and should take account of the fact that the
applicant was unemployed from 16 June to 11 September.

  

ORDERS

(1)      The application under Section 170EA filed on 29 June 1994 is by leave amended
with the reference to "National Cold Storage" as respondent deleted and the
respondent recorded as "Westmeats Pty Ltd (formally National Cold Storage)".

  
  

(2) The termination of the applicant's employment by the respondent on 15 June 1994 contravened Part 3 of Division VIA of the Industrial Relations Act 1988.

(3) The respondent is to pay to the applicant the some of four thousand three hundred

"dollars ($4,300) in compensation, such amount taking account of weekly wages paid by the respondent to the applicant in the period 5 May to 15 June 1994 and a period of twelve weeks and four days unemployment from 6 May to 1 i September 1994.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Industrial Relations Court rules.

I certify that this and the preceding 5 page(s) are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Date  12 September 1994
Appearances:
Solicitor for the Applicant  Mr. Mark Irving of Maurice Blackburn and Company

The Respondent  Mr. Martin Wieselmann, General Manger of the
respondent company appeared on behalf of the respondent

  

Date of Hearing  :           5 September 1994
Judgment  :           12 September 1994

6