Joseph Luke Muratore v Electron Corporation
[1994] IRCA 136
•13 December 1994
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 1332 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N:
JOSEPH LUKE MURATORE
Applicant
A N D
ELECTRON CORPORATION PTY. LTD.
Respondent
Reasons for Judgment
13 December 1994 PARKINSON JR
In this matter the applicant seeks the following remedies:
(a) an order declaring the termination of the employer’s employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988 (“the Act”);
(b) an order requiring the respondent to reinstate the employee in employment; and
(c) an order that the respondent pay compensation to the employee.Such other order or orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the respondent had not been terminated.
The following witnesses gave evidence in the proceedings:
Mr Joe Muratore - the applicant
Mr Gunther Koob - the Managing Director of the respondent company
Mr John Fitzpatrick - the applicant’s supervisor.
The applicant contends that his employment was terminated by the respondent without reason upon his return to work from absence due to injury. The applicant further contends that he was initially engaged by the respondent as a permanent employee, and that some time after he commenced work with the respondent his status, although not the regularity or hours of his work, was altered by the respondent to casual.
The respondent contends that there was never a termination of the employment, but merely a failure to renew the engagement of the applicant at the conclusion of a casual work contract, and that this was consistent with the agreement between the parties and the history of the employment.
It was further contended that the applicant was precluded from bringing the proceeding by the operation of S170CC and Regulation 30B(1)(d) of the Act.
I turn now to deal with the evidence in this matter in summary form and to set out my findings of fact in relation to the evidence.
Summary of the evidence and findings of fact.
The applicant is aged 21 years and has been employed by the respondent for a total of approximately 30 months. He was first employed as a labourer in the respondent’s production area on a permanent full time basis in February, 1992 and remained so employed until March, 1993 when he left the respondent of his own accord to work elsewhere. In or about June, 1993 the respondent’s managing director Mr Koob rang the applicant and invited him to return to the employment of the respondent. The position offered was a full time permanent position. The applicant’s evidence, which I accept, was that the respondent informed him that he would be given training in a range of processes, and that this was one factor which induced the applicant to return to the respondent’s employ.
The evidence is that in or around December, 1993 the respondent informed the applicant that he was to be made a casual employee. The applicant says that this action was explained to him by the respondent as having been taken so that he would start at the same time in the morning as other employees. The respondent says that it was done merely to give the applicant more flexibility in his work attendance in view of his inability to attend on time, because as a casual employee he would not be required to attend and would only be paid if he did. I note in this regard that the applicant’s supervisor Mr Fitzpatrick was also employed on a permanent casual basis, working regular weekly hours. Despite the respondent’s submissions to the contrary, there was no evidence in these proceedings of conduct which would constitute unauthorised absence from work, although I am satisfied on the applicant’s own admission that he was on occasions late for work.
The applicant’s evidence was that his hours of work after the alteration of his status from permanent to casual were Mondays to Thursdays - 8.00am to 4.30pm and 8.00am to 2.30pm on Fridays. Prior to that time he had commenced work at 8.30am.
On 21st February, 1994 the applicant suffered a work-related injury which resulted in the loss of some 13 millimetres of his middle finger, including 8 millimetres of bone. As a result of this injury he was hospitalised for a week and spent some 18 weeks absent from work whilst recovering. During this period of absence the applicant was paid workers compensation on the basis of working 76 hours per fortnight. The rate of payment was $333.00 per week. The evidence was that at some time during his recovery period the applicant informed the respondent of his ability to perform light duties, and of his wish to return to work early, but the respondent was unable to make such duties available. The applicant returned to work in late June, 1994.
The evidence was that the applicant had ongoing treatment for his injury after his return to work and that this included weekly treatment from a hand therapist which was subsequently reduced to fortnightly. The applicant’s evidence was that these continued visits to the specialist were the subject of some derogatory comment by his workmates. The evidence of Mr Fitzpatrick, the applicant’s supervisor, was that there was a “book being run” as to the applicant’s absences from work. The evidence of Mr Koob was that management were aware of this attitude towards the applicant’s absences, however it was denied that this attitude emanated from or was encouraged by management.
On 29th July, 1994 and 1st August, 1994 the applicant was absent from work due to a shoulder injury. This injury was the subject of medical attention and medical certificates were provided in respect of this absence (Exhibits H2 and H3). The applicant also informed the company purchasing officer of his inability to attend for work but, having assumed that a workmate would advise management of his non-attendance on the first day of absence, this did not occur until the morning of the second day of absence.
I accept the applicant’s evidence that upon attending for work on 2nd August, 1994, he was told to hand his clock card to the purchasing officer and to report to the managing director’s office. Upon doing so he was told by Mr Koob that he was unreliable, that he was taking too much time off work and that the respondent had no work for him and he was to leave. The applicant’s evidence was that he informed Mr Koob that he had doctor’s certificates for the absence, and that Mr Koob refused to see them saying that “any doctor can give you a certificate”. The applicant’s evidence, which I accept, was that no other reason was given. The applicant’s evidence was that he understood Mr Koob to be dismissing him.
Mr Koob does not deny that he said words to the effect of those evidenced by the applicant, but explains them as merely being reflective of the day by day working arrangements between the parties. He said further that it was not intended that the applicant’s employment would cease forever but merely until further work became available. Mr Koob’s evidence was that the work load had dropped off and that as a result there was a need to cut back on staff.
However, the evidence of the Mr Fitzpatrick was that there had been no significant change in the work load, and that it was “average”. Certainly his evidence was not that there was any drop off in the amount of work available which would impact upon employment. I accept the evidence of Mr Fitzpatrick in this regard.
The applicant’s evidence is consistent with this evidence and I am satisfied that there was no basis to the assertion by the respondent that the reason why the applicant was not required to attend the workplace was because there was a lack of work. I find that this was not the reason, nor was it given as a reason to the applicant for the termination of his employment on that day.
Some days after the cessation of the employment, the applicant rang Mr Koob to obtain from him an employment separation certificate and was offered work for a day or so filling in a trench for the respondent. This offer of work is relied upon by the respondent as evidence of the itinerant nature of the casual contract between the parties. The applicant’s failure to accept such work is relied upon by it as constituting a failure in the applicant to take reasonable steps to mitigate any loss he may have suffered. The failure in the applicant to apply for unemployment benefits until some time after the termination is also relied upon by the respondent.
Having regard to the above matters and findings of fact, I turn now to determine whether there was a termination of the employment of the applicant, and whether S170CC applies.
Whether the employment was terminated, and S170CC.
I now turn to consider whether there was for the purposes of the Act a termination of the applicant’s employment by the respondent which falls within the operation of Division 3 Part VIA of the Industrial Relations Act 1988.
It was the respondent’s submission that there has not been any termination of the employment of the applicant in that he was only engaged on a casual basis and that nothing had occurred other than that the respondent had not yet called upon the applicant to work in accordance with the casual contractual arrangements.
It was submitted that the respondent was entitled to treat the contractual arrangements between the parties as operating in this manner and thus there had been no termination of employment. The respondent disputes that there was anything regular about the hours of work of the applicant, and submits that the applicant’s employment was casual employment of the most flexible kind in that he could make himself available for work as and when he wished, and that the respondent could hire him for work on a hire by hire basis as and when it wished. That is, that the employment was of an intermittent or itinerant nature.
In support of this contention the respondent tendered six pay slips which seemed to indicate a variation in hours to those of the usual 36 contended for by the applicant (Exhibits OG1, OG2, and OG3). The pay slips related to six pay periods out of the entire period of the employment and they were :
4th November - 17 November 1993 (OG 1) (prior to casual status)
18th November - 1st December, 1993 (OG1)
30th December 1993 - 12th January, 1994 (OG2)
9th December 1993 - 22nd December, 1993 (OG3)
14th January, 1994 - 27th January, 1994 (OG3)
28th January, 1994 - 9th February, 1994 (OG3)
These pay slips were relied upon as evidence of the casual arrangements contended for by the respondent. The limited period of time to which the pay slips relate, combined with there being explanation as to the variations within them, ie: holidays and holiday shutdowns, even from the respondent, makes them of little assistance to me in ascertaining the true nature of the arrangement between the parties. This is particularly so when regard is had to the evidence of the applicant, which I accept, that he worked regular hours as set out earlier herein, and the evidence of Mr. Koob that he could not explain why one period represented only 5 and 1/2 hours when the applicant’s normal time was 7 and 1/2 - 8 hours.
It is not unusual for hours of work during a particular period to vary, and this is particularly so when those hours, or lack of them, are recorded on a pay slip referrable to a holiday close down period, as was the case with Exhibit OG2, the pay slip relevant to the fortnight ending 12th January, 1994. There was no significant variation in the amounts payable to the applicant and hours recorded upon the pay slips which would indicate that the usual hours of work of the applicant were less than the hours he gave in his evidence.
The applicant’s evidence as to the hours of work is set out earlier herein. His evidence was that his employment required his attendance each working day for a regular and certain number of at least 36 hours, although some overtime was worked.
I do not accept that the terms of the engagement of the applicant were for anything less than 36 hours per week. Nor do I accept that the reality of the arrangement between the applicant and the respondent meant that no obligation existed to attend for work on a daily basis, or that no obligation existed in the employer to provide such work. In so far as the contract was a casual contract of employment, and it appears that there is accord between the parties that the title of the employment was of this nature, I do not accept that the substantive obligations between the parties changed in any way at the time of the alteration of the applicant’s employment status from permanent to casual, other than in respect of the loading of the hourly rate of pay with an additional amount of money in lieu of sick leave and holiday pay.
I am satisfied that the applicant’s employment was terminated by the respondent on 2nd August, 1994. I make this finding on the basis that the true nature of the contract of employment between the parties was one of the provision by the respondent of regular and consistent hours of work with a corresponding obligation of attendance and performance on the applicant.
However, I should add that even were I to find that there was truly a casual contract of employment which enabled the respondent to fail to provide work from time to time, I would nevertheless be of the view that in the present circumstances, having regard to the pattern of the previous engagements and the failure of the respondent to provide any additional work to the applicant at his usual work location notwithstanding its evidenced availability, it has been demonstrated that there was in any event a termination of the employment at the initiative of the employer.
I further find that the provisions of S170CC and Regulation 30B(1)(d) do not operate in this matter to exclude the applicant from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act. I find that the applicant was not a casual employee “engaged for a short period”. Having regard to the period of the employment, the initial engagement and the consistent nature of the attendance for work and working hours, I find that the applicant was employed by the respondent upon arrangements which contemplated an ongoing employment relationship between the parties.
Further, having regard to S170CC and Regulation 30B(1)(d) it is my view that, in the absence of the contractual arrangements falling within the categories of employment excluded by those provisions, the abrupt cessation of the provision of long standing and regular employment by the respondent would constitute a termination of the employment at the initiative of the employer as contemplated by Division 3 Part VIA of the Act, and in particular S170DE and S170EA.
Having regard to my findings as to the circumstances of the cessation of the employment, it follows that I conclude that on 2nd August, 1994 the respondent terminated the employment of the applicant.
I now turn to consider the issue of whether the respondent had a valid reason for the termination of the employment.
S170DE(1) - Valid Reason.
Having regard to the applicant’s evidence as to the reasons given by the respondent for the termination of the employment, which evidence I accept, I am satisfied that there was no valid reason for the termination of the employment of the applicant. In view of my finding on the evidence earlier in this decision that the reason given by Mr Koob in these proceedings for the cessation of the employment was not true, I have decided that the termination of the applicant’s employment was not for a valid reason.
Further, I am not satisfied that the respondent has established that the reason or one of the reasons for the termination of the employment of the applicant was not because of his temporary absence from work due to injury on 29th July, 1994 and 1st August 1994. Termination for that reason, or including that reason, is prohibited by the operation of S170DF(1)(a). I make this finding in the absence of any other credible explanation for the termination of the applicant’s employment as and when it was terminated. I find further that it is probable that the continued absences from work for the purpose of seeking medical treatment for his work related injury, absences which in my view fall within the class of temporary absence from work on account of illness or injury, was a factor in the decision by the respondent to terminate the employment.
S170DE(2) - Harsh, Unjust or Unreasonable - Procedural fairness.
It is also apparent on any view of the evidence before the court that the applicant was not accorded an opportunity to be heard in relation to the termination of his employment. Nor was there any process or procedure adopted by which the applicant was forewarned of a possible termination. In the circumstances, even had the termination been for the reason of lack of work, and I have found to the contrary, it is incumbent upon the respondent having regard to the history of the applicant’s employment to look seriously at ways in which it may be possible to reduce the impact of the termination upon the applicant and to discuss these matters with the applicant. This simply was not done. I am satisfied that the termination of employment occurred without the applicant being accorded procedural fairness and was thus harsh, unjust or unreasonable.
I am further satisfied that the respondent failed to give the applicant an opportunity to be heard prior to the termination of his employment, and in this regard there was a failure to comply with S170DC of the Act.
I find therefore that the respondent, in terminating the employment of the applicant, contravened Division 3 Part VIA of the Industrial Relations Act 1988. I turn now to consider the question of remedy.
Remedy.
There is no material before me which would provide any basis for a finding that the reinstatement of the applicant to his previous position with the respondent would be impracticable. In submissions it was submitted by the respondent’s counsel that an order for reinstatement would only result in the applicant being in the same position contractually as contended for by the respondent. That is, that he could be engaged at will by the respondent. I have found that the employment of the applicant was not of such a nature, and therefore my order is to be clearly understood to be an order for reinstatement to the position the applicant occupied prior to the termination, which was one of consistent and regular hours of work in the terms described earlier herein.
This decision requires that the applicant be reinstated and provided with ongoing employment at his previous rate of payment and for a minimum of 36 hours per week.
I have also decided to make an order for payment by the respondent to the applicant of the amount of remuneration lost by the applicant between the date of termination of employment and the date of reinstatement. That amount is $6655.00. That amount is a gross amount.
The orders of the court will be:
That in terminating the employment of the applicant, the respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
That the applicant be reinstated by the respondent to the position in
which he was employed immediately prior to the termination or to another position on terms and conditions no less favourable to those
on which he was employed immediately prior to the termination.That the reinstatement be effective from the date of this order.
That the respondent pay to the applicant the sum of $6655.00 being
the amount of remuneration lost by the applicant as a result of the
termination.That the period between the date of termination and the date of reinstatement be treated as continuous employment of the applicant
by the respondent for all purposes.
That the time for payment is twenty-one days from the date of this order.
I certify that this and the preceding fourteen (14) pages
is a true copy of the reasons for judgment of
Judicial Registrar Parkinson.
Associate:
Dated: 13 December 1994
Solicitors for the applicant: Slater & Gordon
Solicitor appearing for the applicant: Ms G. Hubble
Solicitors for the respondent: Billings Cloak Huggins
Counsel appearing for the respondent: Mr C. O’Grady
Date of hearing: 29 November 1994
Date of judgment: 13 December 1994
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