Kenneth Purdue, Paul Ellison, Peter Jackson v Brown and Hatton Group Limited, Brown and Hatton Rural Pty Limited, Parkville Pig Stud Pty Limited
[1996] IRCA 79
•18 March 1996
DECISION NO: 79/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION- VALID REASON - IDENTITY OF EMPLOYER - REINSTATEMENT - COMPENSATION
Industrial Relations Act 1988, Ss. 4, 170 DB EA EDA EE, and 347
May v. Lilyvale Hotel Pty Limited (unreported) Wilcox C.J. Judgment No. 628/95
KENNETH PURDUE, PAUL ELLISON, PETER JACKSON
-V-
BROWN AND HATTON GROUP PTY LIMITED
BROWN AND HATTON RURAL PTY LIMITED
PARKVILLE PIG STUD PTY LIMITED
NI 531 of 1994
NI 533 of 1994
NI 534 of 1994
CORAM: JUDICIAL REGISTRAR LINKENBAGH
PLACE: SYDNEY
DATE: 18 MARCH 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 531 of 1994
BETWEEN:
Kenneth PURDUE
Applicant
AND:
BROWN AND HATTON GROUP PTY LIMITED
(A.C.N 003 573 537)
First Respondent
BROWN AND HATTON RURAL PTY LIMITED
(A.C.N 003 747 966)
Second Respondent
PARKVILLE PIG STUD PTY LIMITED
(A.C.N 059 356 946)
Third Respondent
CORAM: JUDICIAL REGISTRAR LINKENBAGH
PLACE: SYDNEY
DATE: 18 MARCH 1996
MINUTES OF ORDERS
That the name of the Respondent be changed to Brown and Hatton Group Pty Limited (A.C.N. 003 573 537) and Brown and Hatton Rural Pty Limited (A.C.N. 003 747 966) and Parkville Pig Stud Pty Limited (A.C.N. 059 356 946).
That the respondents reappoint the applicant to another position on terms and conditions no less favourable than those on which he was employed on 28 June 1994.
That the respondents do all things necessary to maintain the continuity of the employment.
That the respondents pay to the applicant the remuneration lost by him because of the termination, the calculation of that remuneration to take into account my findings of fact as to the applicant’s earnings from other employment since 30 June 1994.
Note: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 533 of 1994
BETWEEN:
Paul ELLISON
Applicant
AND:
BROWN AND HATTON GROUP PTY LIMITED
(A.C.N 003 573 537)
First Respondent
BROWN AND HATTON RURAL PTY LIMITED
(A.C.N 003 747 966)
Second Respondent
PARKVILLE PIG STUD PTY LIMITED
(A.C.N 059 356 946)
Third Respondent
CORAM: JUDICIAL REGISTRAR LINKENBAGH
PLACE: SYDNEY
DATE: 18 MARCH 1996
MINUTES OF ORDERS
That the name of the Respondent be changed to Brown and Hatton Group Pty Limited (A.C.N. 003 573 537) and Brown and Hatton Rural Pty Limited (A.C.N. 003 747 966) and Parkville Pig Stud Pty Limited (A.C.N. 059 356 946).
The respondents are in breach of section 170 DE (1) of the Act.
In all the circumstances of the case no order under section 170 EE of the Act is made.
Note: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 534 of 1994
BETWEEN:
Peter JACKSON
Applicant
AND:
BROWN AND HATTON GROUP PTY LIMITED
(A.C.N 003 573 537)
First Respondent
BROWN AND HATTON RURAL PTY LIMITED
(A.C.N 003 747 966)
Second Respondent
PARKVILLE PIG STUD PTY LIMITED
(A.C.N 059 356 946)
Third Respondent
CORAM: JUDICIAL REGISTRAR LINKENBAGH
PLACE: SYDNEY
DATE: 18 MARCH 1996
MINUTES OF ORDERS
That the name of the Respondent be changed to Brown and Hatton Group Pty Limited (A.C.N. 003 573 537) and Brown and Hatton Rural Pty Limited (A.C.N. 003 747 966) and Parkville Pig Stud Pty Limited (A.C.N. 059 356 946).
That the respondents pay to the applicant the sum of $12,152.40 as compensation pursuant to the provisions of section 170 EE (3) of the Act.
Note: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 531 of 1994
NI 533 of 1994
NI 534 of 1994
BETWEEN:
Kenneth PURDUE
Paul ELLISON
Peter JACKSON
Applicants
AND:
BROWN AND HATTON GROUP PTY LIMITED
(A.C.N. 003 573 537)
First Respondent
BROWN AND HATTON RURAL PTY LIMITED
(A.C.N. 003 747 966)
Second Respondent
PARKVILLE PIG STUD PTY LIMITED
(A.C.N. 059 356 946)
Third Respondent
CORAM: JUDICIAL REGISTRAR LINKENBAGH
PLACE: SYDNEY
DATE: 18 MARCH 1996
REASONS FOR JUDGMENT
These are applications under the provisions of Section 170 EA of the Industrial Relations Act, 1988 in which the applicants each seek a remedy in respect of the termination of their employment. The facts are common to the three applications and these reasons are given in each application. I propose to make separate Orders appropriate to the separate applications.
THE IDENTITY OF THE EMPLOYER
At the commencement of the hearing three respondents were joined, and all are represented by the same solicitor and counsel. One of the reasons for that is that the applicants do not know the identity of their employer and have not at any stage been informed as to the true identity of the ‘legal person’ who is their employer. That is not an uncommon occurrence in this jurisdiction. In this case documentation such a Group Certificates from year to year not only does not assist to establish that identity, but confuses the issue. For instance, Mr. Purdue’s Group Certificate for 1991/2 shows the employer as “Brown and Hatton Rural P/L” and those for 1992/3 and 1993/4 show the employer as “Parkville Stud Pty Limited”, a non-existent entity. Mr. Constantinidis, who has had an interest in all the relevant Corporations, told the Court that the information on the 1992/3 and 1993/4 Group Certificates was a mistake generated by the Accountants who prepared the Certificates.
I agree with the description by Mr Sweeney in his submissions of the applicants as “unsophisticated but patently honest country people” and it appears that their interest in the identity of their employer went no further than knowing that the Brown and Hatton companies existed, and that they worked for “the piggery” under the names Parkville Stud or Woodlands Piggery. The last payslip issued to each of the applicants is headed “Brown and Hatton Woodlands”. The form of Application for Employment which each was asked to sign on 30 June 1994 was headed “Brown and Hatton Rural Pty Limited”.
In his affidavit of 9 March 1995 Mr Constantinidis asserted that the employer was Brown and Hatton Group Pty Limited. That Company was the Vendor to Parkville Pig Stud Pty Limited of the land on which the piggery was conducted, and the plant equipment and livestock, under a Contract for Sale dated 11 May 1993, which was completed on 11 May 1994. Mr Constantinidis’ evidence does not support the submission by Mr Moore that “at all times up to 30 June 1994 the Second Respondent was the true employer”, and is probably inconsistent with paragraph 4 (p) of Mr. Constantinidis’ affidavit of 20 February, 1996, in which he says that he told the employees on 28 June 1994 that their employment with “Parkville Stud” would be at an end on 30 June. No search of that business name was put in evidence.
The applicants are not in a position to know the intricacies of the corporate structure of the employer, nor do they have access to its records. Whatever they thought as to the identity of their employer was assumption on their part, and the employer did nothing to inform them accurately, even at the stage when their permanent employment was terminated and they were offered casual employment with a “new” employer. The evidence discloses that Mr Constantinidis was a thread common to each entity, and was regarded by the applicants as one of the bosses. He spoke for the employer to the employees on 28 June 1994 when he terminated their employment and in his affidavit of 20 February 1996 at paragraph 4 (g) admits that at that time he said, “I can’t speak totally for the new employer” (emphasis added), without identifying the new employer.
At the commencement of the hearing Mr. Moore informed the Court that he had instructions to act for all the respondents and that the Brown and Hatton companies would accept joint and several liability under any Orders made by the Court in the proceedings. That acceptance was not expressed to extend to the third respondent. The power of the Court in Section 170 EE is to make Orders against “the employer” and that term is defined in Section 4 of the Act as including “a person who is usually an employer”. I have some doubt as to whether, particularly in defended proceedings, the Court has power to allow a party to assume responsibility under an Order unless the Court is satisfied that it is proper for the Order to bind that party. I have no doubt however that rights of employees should not be defeated because the employer creates uncertainty. I am not able on the evidence before me to precisely identify the parties to the employment contracts, but there is no doubt that the applicants were employed by one of the three respondents. As will be apparent later in these reasons, on the evidence before me, which falls short of a satisfactory standard but is the best there is, it is most likely that the employer at all material times was Parkville Pig Stud Pty Limited I note that no search of that Company is in evidence.
The onus is on the applicants to prove their cases but on the other hand the respondents ought not to be permitted to gain any benefit from their failure to adequately inform the employees of the true identity of the employer, and I make my findings on the totality of the evidence. Bearing the respondents’ consent in mind, and because any doubts as to the identity of the employer could have been cured by the respondents and they have chosen not to clear up those doubts, and because they all used Mr. Constantinidis as their agent to deal with the applicants, I propose to make my Orders against all three respondents jointly as the employer, and it will be for them to determine between themselves their separate liability.
THE FACTS
I find the following facts.
Mr. Purdue was born on 14 February 1946 and became employed at the piggery on 11 September 1989. He left school at the age of 14 years, has had little formal education, and is now learning to read and do mathematics. His wages from his work at the piggery in 1993/4 were $24,107. He was unemployed from 30 June 1994 until 25 March 1995, and thereafter until 11 January 1996 he worked on a part-time basis at another piggery where his average income was $200.48 per week. He has done a small amount of stock-carting for no profit and was unemployed at the date of hearing.
Mr. Ellison was born on 18 May 1962 and became employed at the piggery on 15 September 1982. He became re-employed by Ridley AgriProducts Pty Limited at the Fielders Mill in Tamworth immediately after the termination of his employment at the piggery. His income from the piggery in 1993/4 was $29,112 and from Fielders in 1994/5 was $29,015. Since 1 July 1995 his weekly wage records show that he has earned substantially more in that employment than the $446.10 per week he was earning at the piggery.
Mr. Jackson was born on 30 October 1959 and became employed at the piggery in June 1988. He was unemployed from 30 June 1994 until 9 August 1994 and since then has worked at a golf course in Tamworth. His wages at the piggery in 1993/4 were $24,305 or $467.40 per week and in 1994/5 at the golf course were $15,266, an average of $293.57 per week over the 52 weeks, or $331.86 over the 46 weeks he was actually employed in that year. Over the 80 week period from 9 August 1994 to 21 February 1996 he earned $27,904.73, or an average of $348.80.
The business of the respondent was the running of a pig breeding and raising farm
The applicants worked as piggery attendants under Mr. Finlay, the resident manager of the piggery. Working hours were from 7 am to 3.30pm or 4 pm and there was some regular weekend work.
The applicants were employed under the Federal AWU Pig Breeding and Raising Award, 1992
There had been no prior disciplinary action, warnings or counselling of any of the applicants in relation to their conduct or work performance.
In May 1994 Mr Purdue spoke to Mr Kellow, the local inspector from the Department of Industrial Relations about incorrect calculation of wages for weekend work at the piggery. Mr Kellow commenced an inquiry which resulted in payments being made to all employees at the end of June 1994 to adjust incorrect calculations of wages. Mr Purdue kept the other two applicants informed of the progress of his talks with Mr Kellow.
At 11 May 1993 Brown and Hatton Group Pty Limited was the registered proprietor of the land in Certificate of Title Volume 7451 Folio 222 on which the piggery was conducted and on that date it entered into a Contract for Sale of the real estate, plant and equipment and livestock to Parkville Pig Stud Pty Limited. The transfer pursuant to that contract was dated for the transferee on 7 June 1993. The date of execution of the transfer was 11 May 1994 and the transfer was registered on the title as dealing number U 505528 on 29 August 1994. The date of completion of the contract was 11 May 1994.
Mr Constantinidis was absent from Australia from late May until late June.
The applicants were not informed of the change in ownership of the business before 28 July 1994 and they were not informed of the identity of the purchaser at all.
On 28 July 1994 Mr Constantinidis met Mr Kellow at the piggery and discussed and resolved the wages issue which had been raised by Mr Purdue in May.
After the meeting with Mr Kellow Mr Constantinidis called the employees to a meeting and informed them that the wages issue had been resolved. He also told them that the piggery had a “new owner” and that their employment would cease on Thursday 30 June. He referred to the new owners as “we” and offered to re-employ all the staff as casuals. Mr Satill, a superannuation consultant was at the meeting. The men consulted with one another and informed Mr Constantinidis that they would accept the offer. Mr Constantinidis told Mr Purdue he could continue to agast his cattle on the property, “until things were sorted out”.
On 30 June after lunch time Mr Finlay asked the men to each sign an Employment Declaration form for the Taxation Department and a form of Application for Employment which was headed “Brown and Hatton Rural Pty Limited”. No particulars were completed on the forms. The applicants were unwilling to sign the forms until they were filled in and Mr Finlay said “Sign the bloody things or you will be sacked.”
At the conclusion of work on 30 June Mr Finlay again spoke to the applicants and told them their services were no longer required. He told them that Mr Constantinidis had asked him which employees had complained to the Department and that when Mr Finlay had told him it was the three applicants Mr Constantinidis had said “Get rid of them.”
Mr Finlay reported the events of 30 June 1994 to Mr Constantinidis by telephone.
The applicants sought advice from the Union and from Mr Kellow on 30 June by telephone and thereafter.
There was no change in the day to day operations of the piggery which became effective on 30 June 1994.
Mr Finlay, and the other employees at the piggery whose length of service was less than that of the applicants, continued in employment and others were employed within a short time after 30 June. If their employment was casual at all, it was only casual for a very short period.
Since 30 June 1994 there has been an investigation into non-payment contributions to the applicants’ superannuation accounts and those payments have been adjusted.
THE WITNESSES
The relative credit of the applicants and Mr Kellow against Mr Finlay and Mr Constantinidis is a determining factor in my findings as to fact.
Whilst there were some minor variations between the versions of the facts given by the applicants, their evidence was essentially consistent. The respondents argue that Mr Purdue planned the dismissals with Mr Kellow after 28 June so as to enable the applicants to bring unfair dismissal claims against the employer on the ground of the complaint to the Department. That argument relies on the words used by Mr Purdue to Mr Kellow when he telephoned him on 30 June and said, “Now we’ve got him, he’s just sacked us”. It also necessitates the plot having been hatched on the telephone on the Tuesday or Wednesday. I am unable to draw these inferences, as suggested by Mr Moore, from the evidence.
The argument also begs for explanation of a motive in the two men. Mr Kellow is a Public Servant who became involved because of the complaint about underpayment of wages and who, after the terminations, assisted the applicants, probably to a greater extent than his role as an inspector required him to do. There is no evidence which sustains his being motivated to assist Mr Purdue against the employer. The underpayment of wages issue had been settled between Mr Kellow and Mr Constantinidis on the Tuesday, and Mr Finlay told the Court that Mr Purdue had said to Mr Constantinidis on the Tuesday that “there was no hard feelings about bringing Kellow in”. Why would Mr Kellow want to take matters against the employer any further?
Nor is there any evidence of any motive in Mr Purdue to throw away his livelihood, and a job which he clearly liked doing, just so that he could take the employer to Court over an issue which had already been resolved in his favour. He had accepted the proposition put by Mr Constantinidis on the Tuesday regarding the casual work, and on that day said words to the effect that Mr Constantinidis was a good person and encouraged the other men to go along with his proposition. There is no evidence to support any change in Mr Purdue’s attitude, although he did have telephone contact with Mr Kellow in the meantime, until the forms were presented for signature on the Thursday. There is also no evidence to explain how, when and why, if Mr Purdue and Mr Kellow had hatched a plot, the other two applicants were informed of it and agreed to go along with it to the point of losing their employment.
The employer relies on alleged conversation on the Thursday between Mr Purdue and Mr Finlay regarding the proposed attendance for work by the applicants on 1 July, to support its argument that Mr Purdue was looking for an issue on which to base his dismissal, and created that issue by saying that he would only work for four hours a day if he was a casual. I accept the applicants’ evidence of that conversation, to the effect that it arose after the blank forms had been presented to them, and that they said that until the terms of their employment with the “new” employer were settled, they would not leave the pigs unattended, but would only work the minimum time necessary to feed and maintain the pigs, because the welfare of the pigs was important to them. Again, the employer’s argument relies upon a desire by the applicants to deliberately act to bring their employment to an end, so that they could take action for unfair dismissal based on the wages issue, which had at that stage been resolved.
Another area of challenge to the credibility of the applicants arises from the amendment of the affidavits in support of their Applications, which are in identical terms to one another and were sworn by Ms Gaynor from the Union. The affidavit sworn and filed on 12 July 1994 gives as the reason for termination “that the nature of the business was to change to a stud requiring less staff to run it”. The affidavit filed on 27 July 1994, which on its face was sworn on 12 July, but on Ms Gaynor’s oral evidence was sworn later, gives as the reason, “that the employee had made a complaint to the Department of Industrial Relations about underpayment of wages”. Those documents appear to indicate a change in Ms Gaynor’s instructions. I accept the explanation offered by Ms Gaynor and the applicants, that there was a breakdown in communications between the local Union representative in Tamworth and Ms Gaynor, the applicants and Mr Kellow, which resulted in her being misinformed at the time she swore the first affidavit. That explanation is supported by the handwritten affidavits of Mr Ellison and Mr Purdue which were sworn on 8 July 1994 but not filed, and are Exhibits “U” and “V” and the file note prepared by Ms Gaynor on 22 July 1994 which is Exhibit “W”. This aspect of the evidence illustrates the lack of wisdom inherent in swearing an affidavit as to facts of which the deponent has no personal knowledge.
Mr Constantinidis’ credibility suffered because of a lack of attention to detail and internal inconsistencies. A ‘near enough is good enough’ management style, and inattention to the interests of his employees, is apparent from the confusion over which of the corporations in which he had an interest was the employer of the applicants, his assertion that, even though the sale of the business was completed on 11 May 1994, it would not be effective until 30 June, and his giving the employees two days notice of the decision to terminate and re-employ them as casuals, without providing any details such as the identity of the new employer, rates of pay, or hours to be worked, and without any attempt to follow the procedures set out in the Award.
His account of the meeting on 28 June in his affidavit of 20 February 1996 is that he did not offer casual employment to all the employees, but said that their future depended upon a board meeting to be held on 29 June. That is not consistent with his oral evidence that on the Tuesday he told the men they would be doing “exactly the same work at casual rates” and his taking the superannuation consultant to Tamworth to speak to all the employees on 28 June, or with Mr Satill’s oral evidence of what was said to the men, that is, that “they would all be casual workers.” Mr Constantinidis’ evidence could have been confirmed by calling the other employees who were present at the meeting and who remained in employment, to give evidence, but they were not called.
Mr Constantinidis told the Court that he told Mr Finlay on 29 June that all the men would be offered casual employment. It follows from that that none of the men would have known before 30 June whether their employment was to continue and Mr Finlay would have had to tell the men they were all to be re-employed as casuals. There is no evidence that Mr Finlay spoke to the men along those lines. The next contact Mr Finlay had with the men was his request at lunchtime on 30 June that they all sign the forms and he gave no evidence of any conversation with the men before then. The applicants’ evidence of the offer and acceptance of casual employment on 28 June is consistent with the provision of the forms to all the employees without further information from Mr Finlay on 30 June. It is also consistent with paragraph 4 (u) of Mr Constantinidis’ affidavit of 20 February 1996, where he reports that he said to Mr Finlay on 30 June 1994, “they are being offered casual employment......as I advised them all on Tuesday.” His account of the meeting on 28 June in his affidavit is therefore not credible and casts doubt over his evidence generally.
Another area in which the evidence of Mr Constantinidis is not credible is his account of his contact with Mr Finlay and his actions on 30 June 1994. His evidence of what occurred is confusing and lacks detail. The evidence overall does not support his evidence that he spoke to Mr Finaly “early” on 30 June 1994, because the subject matter of that converstion, being the statements by the men as to what hours they would work on 1 July 1994, did not arise until after lunchtime on that day.
In paragraph 4 (w) of his affidavit of 20 February 1996 Mr Constantinidis says that he informed the pay office of “the employees who would not be restarting with the new employer”. He does not explain in the affidavit, and could not explain in his oral evidence, how he was notified of the names of the three men. The evidence of the applicants that Mr Finlay told them that he had been directed to dismiss them by Mr Constantinidis offers a cogent explanation. It could be said that it was mere coincidence that the three men who were terminated were the three who supported the complaint to the Department. However, the absence of any evidence as to the selection process which was used, and the ready acceptance by him of the applicants’ failure to sign the forms as justification for the dismissals, and the unreasonableness of the request for signature of the blank forms, lend some significance to that coincidence. The active participation by Mr Constantinidis and the level of that participation support the applicants’ submission that it was he who was the cause of their final termination on 30 June 1994.
The other major witness was Mr Finlay who, I find, was essentially an honest witness, whose memory of detail failed him at times, and whose evidence was at times affected by the consideration that he is still an employee of Mr Constantinidis.
BREACHES OF THE ACT
I find that there was no valid reason for the termination of employment which was effected by the giving of notice on 28 June 1994. There is no evidence other than assertions by Mr Constantinidis of any change in the operation of the piggery business on 30 June 1994. The onus is cast on the employer by Section 170 EDA to establish that there was such a change, which constituted a valid reason for the termination of the employment. The business had changed hands on 11 May 1994 without the knowledge of the employees. Mr Constantinidis asserts that that change was effective from 30 June 1994 and had the effect of creating a need for redundancies, but has brought no evidence before me to support that assertion, and in his oral evidence described 30 June 1994 as “just a neat cut off.” One test is that if the employees of a business work for the owner of the business, and the evidence is that Parkville Pig Stud Pty Limited acquired the business on 11 May 1994, the applicants worked for that company from that date. The provisions of the Award would apply to protect the continuity of employment.
As I have found that there was no valid reason for the terminations on 28 June it follows that the employer is in breach of Section 170 DE (1) of the Act. The applicants did agree on 28 June to go along with the proposal of Mr Constantinidis for casual employment with the “new owner” from 1 July 1994. That agreement was given under a misunderstanding of the true position, induced by the conduct of the employer, and could not, in my view, have been enforceable. The respondents argue that the applicants are excluded by Regulation 30B from bringing a claim in respect of the termination of that contract for casual employment. I find that there is no need for me to consider that issue, as I have already found a breach which entitles the applicants to consideration of a remedy. Whilst the events of 30 June intensify the effect of the initial termination on the applicants, and have assisted me in my assessment of the relative credibility of the witnesses, I do not have to consider whether they constitute breaches of the Act and they are not relevant to consideration of the question of appropriate remedies. Likewise, it is not necessary for me to determine whether there was a breach of Section 170 DF (1) (e) of the Act on 30 July 1994
REMEDIES - REINSTATEMENT
The primary remedy available is reinstatement. Mr Ellison and Mr Jackson have other permanent employment and do not seek reinstatement and I find that in their cases reinstatement is impracticable for that reason. Mr Purdue is unemployed and is anxious to work, and gave evidence that he enjoyed the work and intended to remain in the job until he retired. The lapse of time since the terminations might in other circumstances render reinstatement impracticable. However, the delays in bringing these matters on for hearing were caused by the failure of the parties to ensure that settlement negotiations were properly concluded and put into effect. Those are matters over which the parties, particularly the respondent, had control. Interests in which Mr Constantinidis is involved still run the piggery and there should be a job there for Mr Purdue. I propose to order that he be reinstated and that all remuneration lost be made up to him.
COMPENSATION
The principles applicable in assessing compensation are set out in Section 170 EE of the Act and the case law. The decision of the Chief Justice of the Court in May v. Lilyvale Hotel Pty Limited on 1 December, 1995, which is unreported judgment number 628/95 spells out the manner in which the cap on compensation under Section 170 EE (3) should be applied. The 15 January 1996 amendments to Section 170 EE (2) apply to give a discretion as to whether an order for compensation should be made. Mr Moore submitted that the amendments give a discretion to reduce the amount of the order which might otherwise be made. That is not a proper reading of the amendment. The discretion is to refuse an order, if the Court considers it appropriate in all the circumstances of the case, not to tinker with the amount of the order, which is calculated under Section 170 EE (3).
In the case of Mr Ellison, whose good fortune in obtaining other work instantly meant that he did not suffer any economic loss, it is not appropriate for any order to be made.
Mr Jackson was out of work for six weeks and since then his income has been lower that what he would have earned at the piggery by about $130 per week. If the May v Lilyvale Hotel reasoning is applied, the Court looks at his potential future loss, not just at his loss in the six months after termination, to determine his gross loss, and then judges whether that loss exceeds the cap. If it does, then the maximum compensation is awarded. The cap in his case is twenty-six weeks at $467.40, or $12,152.40. His actual loss in the six months following termination (to 1 January 1995) was six weeks at $467.40 plus twenty weeks at $130, which is a total of $ 5404, and but for the decision in May v Lilyvale Hotel Pty Limited that would be the appropriate amount for compensation. That decision requires the Court to determine gross economic loss. The Court usually has to use a crystal ball to look into the future to assess economic loss. However, the delay in hearing of the matter has placed the Court in the position where it knows that the loss at the rate of about $130 per week has continued, and that loss, since 1 January 1995 and up to the date of hearing, is 60 weeks at $130, or $7,800. The cap is exceeded at that point and therefore the maximum amount is payable. It is not necessary for me to assess the extent of future economic loss hereafter.
Mr Moore argues that the payment in lieu of notice should be credited against the compensation. That is not appropriate. Section 170 DB provides for a payment in addition to the remedies available under Section 170 EE.
I note that Mr. Moore has foreshadowed an argument as to costs. Notwithstanding that I have decided that it is not appropriate to make a substantive order in favour of Mr. Ellison, his application had merit, and therefore no issues giving rise to consideration of payment of costs under Section 347 of the Act arise.
The orders I make are therefore:
That in each matter the name of the Respondent be changed to Brown and Hatton Group Pty Limited (A.C.N. 003 573 537) and Brown and Hatton Rural Pty Limited (A.C.N. 003 747 966) and Parkville Pig Stud Pty Limited (A.C.N. 059 356 946)
That the orders made in the separate proceedings are in each case orders against those three corporations jointly
PURDUENI 531 of 1994
That the applicant be reappointed to another position on terms and conditions no less favourable than those on which he was employed on 28 June 1994.
That the respondents do all things necessary to maintain the continuity of the employment.
That the respondents pay to the applicant the remuneration lost by him because of the termination, the calculation of that remuneration to take into account my findings as to the applicant’s earnings from other employment.
ELLISON NI 533 of 1994
I find that the respondents are in breach of section 170 DE (1) of the Act and decline in all the circumstances of the case to make any Order under section 170 EE of the Act
JACKSON NI 534 of 1994
That the respondents pay to the applicant the sum of $12,152.40 as compensation pursuant to the provisions of section 170 EE (3) of the Act.
I certify that this and the preceding seventeen(17) pages are a true copy of my Reasons for Judgment
Maria Linkenbagh
Judicial Registrar
Date: 18 March 1996
Counsel for the Applicants: Mr. M.J. Sweeney S C
Solicitor for the Applicants: Paul Etherington and Associates
Counsel for the Respondents: Mr M. Moore
Solicitors for the Respondents: Gadens Ridgway
Dates of hearing: 26 27 and 28 February, 1996
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