Laidlaw, Bruce Noel v Hockley, Colin t/as the Futon Bedding Shop
[1997] FCA 1103
•15 OCTOBER 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - CONTRACT OF EMPLOYMENT - whether employee covered by AWARD - VALID REASON - whether TERMINATION for PROHIBITED REASON of acting as a representative of another employee - ASSOCIATED JURISDICTION - whether damage to the trust and confidence of the employment - classification of employee having regard to duties and level of remuneration - REASONABLE NOTICE - whether claim for mental distress related to the actual incidents consequent upon the termination of employment - REMEDY - COMPENSATION - DAMAGES -
Workplace Relations Act 1996 (Cth) ss 170DC, 170DE, 170DF, 170EA, 170EE, 430
Furnishing Industry - General - Victoria, South Australia and Tasmania - Consolidated Award 1996 [F0029]
Addis v Gramophone [1909] A.C. 488
Burazin v Blacktown City Guardian (1996) 142 ALR 144
B.P. Refinery (Westernport) v Hastings Shire Council (1977) 16 ALR 363
Byrne v Australian Airlines Ltd (1995) 131 ALR 422
Ciro v Phone Installations Australia Pty Ltd (unreported, IRCA, Parkinson JR, 24 February, 1997)
Johns v Gunns Limited (1995) 60 IR 258
Malik v Bank of Credit and Commerce International S.A. 3 WLR 95
Quinn v Jack Chia Pty Ltd (1991) 43 IR 91
LAIDLAW -v- HOCKLEY
VI 1243 of 1997
PARKINSON JR
MELBOURNE
15 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1243 of 1997
BETWEEN:
BRUCE NOEL LAIDLAW
APPLICANTAND:
COLIN HOCKLEY TRADING AS THE FUTON BEDDING SHOP
RESPONDENTJUDICIAL REGISTRAR:
PARKINSON
DATE OF ORDER:
15 OCTOBER 1997
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
Pursuant to Subsection 170EE(3) of the Workplace Relations Act, 1996, the respondent pay to the applicant compensation in the sum of $5,200.00.
The respondent on the contractual claim pay to the applicant damages in the sum of $620.00.
Time for compliance with Orders 1 and 2 herein is 21 days from the date of this Order.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1243 of 1997
BETWEEN:
BRUCE NOEL LAIDLAW
APPLICANTAND:
COLIN HOCKLEY TRADING AS THE FUTON BEDDING SHOP
RESPONDENT
JUDICIAL REGISTRAR:
PARKINSON
DATE:
15 OCTOBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is a decision in relation to an application made pursuant to Section 170EA of the Workplace Relations Act 1996. (‘the Act’) The applicant was employed by the respondent in approximately April 1994. He was initially employed pursuant to a Commonwealth funded training scheme known as ‘Jobstart’. The period of the scheme was 13 weeks. The respondent manufactures and sells futons, a type of bed, at its premises at Brunswick in Victoria. It also has a retail outlet at Fitzroy. The respondent is a sole trader and has personally operated the business since purchasing it in September 1993. He was directly responsible for hiring the applicant. This case is extremely unfortunate in that it is apparent that friendships have been destroyed in the course of the employment relationship. It is clear that the applicant’s employment was initially offered partly on account of the friendship between the applicant and the respondent. This case was conducted in a climate of personal animosity and antagonism, which to a degree affected the clarity of the evidence being given by both parties.
The applicant was initially employed by the respondent as a factory hand making futons. I am satisfied that in the course of the employment, and after the expiration of the subsidy program, the applicant’s duties and responsibilities altered and expanded. It is apparent that he undertook clerical, administrative, sales and supervisory tasks in the course of his employment and that this work was delegated to him by the respondent. In the absence of the respondent, either on business or holiday, the applicant managed the store. The respondent described himself as the Manager of the business and informed the Court that he was opposed to hierarchical structures in which people worked other than co-operatively. Whilst I am prepared to accept that this was the philosophy underpinning the operation of the business, it is apparent from the evidence that the reality was that the applicant undertook a supervisory role, which in the absence of the respondent was managerial, and this role was undertaken with the encouragement and acceptance of the respondent. That this was so is evidenced by the wages paid to the applicant which were slightly in excess of those paid to other employees and the additional conditions applied, and by the respondent’s own correspondence in which he described the applicant as a Manager of the business in November, 1996. (Exhibits A1 & A2)
The applicant contends that his employment was terminated as a consequence of his acting as a representative of another employee. He contends that the respondent has contravened s170DF(1)(d). He further contends that in terminating his employment, whilst he was absent on account of illness or injury, the respondent has contravened s170DF(1)(a) of the Act. The applicant contends that the employment was terminated without valid reason. The applicant also brings a claim in the associated jurisdiction of the Court, for breach of contract as a consequence of the alleged failure of the respondent to accord reasonable notice of termination of employment and the alleged breach by the respondent of an implied contractual term not to damage the trust and confidence of the employment relationship.
I turn first to the alleged contravention of sub-ss17ODE(1), 170DF(1)(a), 170DF(1)(d), & 170DF(1)(e) of the Act. In this part of the proceeding it is for the respondent to establish that he had valid reason for the termination of the employment of the applicant and that the reason for termination of the employment did not include one of the reasons prohibited by s170DF of the Act and raised by the applicant in the claim.
Section 170EDA provides:
SECTION 170EDA ONUS OF PROOF
170EDA(1) [Termination contravenes subsec 170DE(1)]If an application lodged under section 170EA alleges that a termination of employment of an employee contravened subsection 170DE(1) then, in any consent arbitration arising from the application or in any proceedings arising on the referral of the application to the Court:
(a)the termination is taken to have contravened subsection 170DE(1) unless the employer proves that, apart from subsection 170DE(2), there was a valid reason or valid reasons, of a kind referred to in subsection 170DE(1); and
(b)if the employer so proves, the termination is nevertheless taken to have contravened subsection 170DE(1) if the applicant proves that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid.
170EDA(2) [Onus of proof on employer]
If an application lodged under section 170EA alleges that a termination of employment of an employee contravened subsection 170DF(1) on the ground that the termination:
(a)was for a particular reason or reasons referred to in that subsection that were stated in the application; or
(b)was for reasons stated in the application that included a particular reason or reasons referred to in that subsection;
the termination is taken to have contravened subsection 170DF(1) unless the employer proves, in any consent arbitration arising from the application or in any proceedings arising on the referral of the application to the Court, that:
(c)the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or
(d)the particular reason was a reason, or the particular reasons were reasons, to which subsection 170DF(2) or (3) applied.
170EDA(3) [“termination of employment”]
In this section:
“termination of employment” means a termination of employment that occurred before, or occurs after, the commencement of this section, but does not include a termination of employment in respect of which an application was made to the Court before the commencement if the Court pronounced final judgment in respect of the application before that commencement.
Subsection 17ODF(1), in so far as is relevant, provides:
170DF(1) [Employer not to terminate on certain grounds]
An employer must not terminate an employee’s employment for any one of the following reasons, or for reasons including any one of the following reasons:
(a) temporary illness from work because of illness or injury;
(b) ...
(c) ...
(d)seeking office as, or acting or having acted in the capacity of, a representative of employees;
(e)the filing of a complain, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
The onus of proof which rests upon the respondent by operation of s170EDA of the Act has been discussed at length by Northrop J in Johns v Gunns Ltd (1995) 60 IR 258 where his Honour stated;
(at pages 267-8)
The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. Parliament has, from time to time, devised procedures to transfer to an employer the onus of proving the reason for termination of employment. Thus s5 of the Conciliation and Arbitration Act, 1904 (Cth) made it a criminal offence for an employer to dismiss an employee by reason of specified circumstances. Section 5(4) provided that in proceedings for an offence, if all the relevant facts and circumstances, other than the reason “set out in the charge as being the reason ... of the ... (dismissal) ... are not proved, it lies upon the person charged to prove that ... ... (the dismissal) ... was not activated by that reason ...”
In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, those provisions and earlier authorities relating to them were discussed at length and in particular at 266-271. I set out a passage appearing at 268 which has equal application to cases where s170DF(1)(a) of the Act applies:
The provisions of s5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant’s action was not actuated by the reason alleged in the charged. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge.
In the same lengthy passage, at 267 reference is made to averment provisions and what was said by Dixon J in R v Hush; Ex parte Devanny (1932) 48 CLR 487. These views could have equal force in the application of s170DE(1) and s170DF(1) of the Act.
The section now corresponding to s5 of the Conciliation and Arbitration Act is s334 of the Act. The wording is somewhat different but, for relevant purposes, the effect is the same, see Lawrence v Hobart Coaches Pty Ltd (1994) 1 IRCR 92; 57 IR 218.
Section 170EDA was inserted into the Act and came into operation on 30 June 1994. Section 170EDA(1) and (2) commences “If an application under section 170EA alleges...”. The section was enacted when the Court Rules contained provisions that an application, being a formal document initiating a claim or application for a remedy under s170EA(1), had either itself or in the accompanying affidavit, to allege the employer’s stated reason for termination. Since then, from 14 October 1994, under the Court Rules, no allegation of reason for termination is required to be given. Order 75 describes an application under s170EA(1) as a “claim” and Form 132 adopts that terminology. As a result, if a claim for remedy comes before the Court there is no application containing an allegation of reason for termination.
Section 170EDA applies with respect to terminations where the employee alleges there are no valid reasons for the termination under s170DE(1) as well as to reasons, not necessarily the only reason, prohibited under s170DF(1). In my opinion, the opening words of s170EDA(1) are to be construed as meaning that if, upon all the evidence, the termination is proved, then the employee is entitled to a remedy unless the employer establishes a valid reason or reasons under s170DE(1). If established, s170DE(2) has to be applied. If this construction is not accepted, the absence of appropriate forms in the Court Rules could defeat the intention of the Parliament.
For similar reasons, the opening words of s170EDA(2) are to be given the same meaning. However, a very important result follows. Under s170EDA(2), where that section is to be applied, the termination is taken to have contravened s170DF(1) unless the employer proves:
(c) The employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or ...
It is because of this provision that the passage quoted in Heidt is of such importance. On the facts of this case, on the assumption that s170EDA(2) applies, it would not be sufficient for the respondent to establish that reasons for dismissal as set out in the affidavit of the respondent and that they constituted valid reasons for termination under s170DE(1). The respondent has to establish a negative namely that the reasons for dismissal did not include the reason that Mr. Johns was temporarily absent from work because of injury. A mere denial may not be sufficient. All the facts and circumstances of the case have to be considered.
The respondent by evidence called in the proceeding must establish that the prohibited reason did not form the reason or part of the reason for the termination of the employment. I turn now to consider my findings on the facts. It is clear from the evidence that there were ongoing tensions in the workplace which arose to some extent from the applicant’s own manner of dealing with people. I accept the evidence of Ms. Hockley, Mr. Fei and Mr Bate as to this matter. However a significant period of time passed during which there was no complaint by the respondent formally raised with the applicant and nor was there any step taken in relation to concerns which the respondent now says he held even in the initial period of the employment. I also accept that the applicant’s responses to the respondent was to some extent borne out of his frustration when he failed to obtain a satisfactory resolution of the workplace issues raised by him.
It is apparent from the evidence that the warnings as to the applicant’s conduct and the termination of the applicant’s employment arose in the context of an ongoing dispute between the respondent and the applicant as to the entitlements of himself and other employees. In particular it is apparent that the applicant was acting as an advocate or representative of another employee, Mr. Zoran Stanojoski, in relation to that employee’s ongoing employment with the respondent and his Workcare claim, which issues arose initially in September, 1996. The applicant’s participation on behalf of the other employee was rejected by the respondent in a hostile interchange between them on 16 December, 1996.
The applicant was pressing the respondent to process the Workcare claim in the period of time required by the Act. Whilst I accept that the respondent was to some extent uncertain about the obligations and entitlements which existed, nevertheless it is apparent that he was tardy in forwarding the necessary documentation to the Workcare insurer and some information provided did not accurately reflect the terms of the employment. The evidence establishes that the respondent was resentful of the applicant’s involvement in the issue and that he on at least one occasion, shortly prior to the termination of the employment, warned the applicant against advocating for the other employee. The issue came to a head as between the applicant and the respondent on 16 December, 1996, when the respondent advised the applicant that he could not be present at any meeting between Mr. Stanojoski and the respondent. It is apparent that the applicant had been appointed by Mr. Stanojoski to assist in advocating his case with the respondent. On 17 December, the applicant became upset and left the workplace ill suffering from a stress related condition, and at that time a course of correspondence commenced between the parties. A letter was sent to the applicant from the respondent dated 16 December, requesting that he “ refrain from involving himself further or interfering or commenting in any way on the matter between Zoran Stanojoski and myself ”. (Exhibit A11)
The applicant’s evidence was that he received this document on 23 December, 1996 after the termination of the employment, and the Australia Post receipt, (Exhibit A12), satisfies me that this is so. On 17 December, 1996 the applicant wrote to the respondent explaining his position in relation to the other employee and his attempts to resolve the situation. (Exhibit A7) On 18 December the respondent wrote to the applicant and advised him that he was to speak in a manner that is courteous and not rude and further that such behaviour would no longer be tolerated. The respondent also demanded the return of the motor vehicle by Friday 3:00pm or the police would be advised. (Exhibit A4) In the intervening period there had been attendance’s at the premises of the respondent by the applicant and a number of hostile interchanges between the parties, for which, on the state of the evidence, it is difficult to attribute blame to either party. On 18 December the applicant sent a letter to the respondent in response to its letter of the 18th, in answer to the two points. (Exhibit A6)
On 20 December, 1996 the respondent wrote to the applicant advising him that the continuation of the employment was untenable and proposing a redundancy package. The evidence is that this letter was given to the applicant at the premises on that day and the applicant was required to respond advising acceptance or rejection by 5:00pm that day. The applicant did not respond stating that he required more time to consider the proposal. (Exhibit A8)
On 23 December, 1996 the respondent wrote to the applicant advising that, in view of his failure to respond to the redundancy offer, he was terminating his employment. (Exhibit A9) The termination letter cites as reasons for the termination incidents of hostility occurring on 19 and 20 December. In addition it cites as a reason the request that the applicant not involve himself in the matter concerning Zoran Stanojoski and his failure to comply with this request.
As to this matter I accept that the applicant in involving himself in the issue was attempting to represent the interests of another employee as a representative of employees. It is apparent that he was authorised to do so by Mr Stanojoski and that the respondent was aware of this authorisation. s17ODF(1)(d) does not confine the status of representative of employee to that of an elected representative. I have previously considered the operation of this provision in Ciro v Phone Installations Australia Pty Ltd (unreported, IRCA, Parkinson JR, 24 February, 1997).
It is appropriate to extract from that decision.
(at pages 6-7)
I accept the submission that the term ‘representative of employees’ in ssl70DF(1)&(d) comprehends a broader class or category of persons, than merely persons elected as representatives of an organisation registered under the Act.
In my view it encompasses those persons, whether elected or not, who act on behalf of an employee or employees, including on their own behalf, by raising employment related issues, including occupational health and safety issues for the attention of the employer. I am satisfied that the applicant, on the occasions when he pursued the safety issues, was acting in the capacity of a representative of employees.
As to this matter the respondent has not satisfied the onus he bears to establish that this representative activity on the part of the applicant was not any part of the reason for the termination of the applicant’s employment. The correspondence identifies it specifically as part of the reason. The respondent has contravened s170DE(1) by including as part of the reason for the termination of the employment a reason prohibited by s170DF(1)(d) of the Act.
The letter of 23 December, also cites the failure of the applicant to return the company vehicle at the request of the respondent. As to this matter it is apparent, even from the respondent’s own calculations of the proposed redundancy payment, that the applicant had some personal use and entitlement of the motor vehicle. It is clear from the conduct of the parties in the course of the employment that the applicant utilised the vehicle for personal use outside of working hours. Whilst I accept that the use of the vehicle was subject to the overriding requirements of the business, nevertheless there was sufficient uncertainty as to the entitlement to use the vehicle as to make the reliance upon this matter as a ground for termination of employment unsound and capricious. As to the other matters, it is apparent that the relations between the parties had reached a stage where invective and abuse was a common occurrence. I have earlier described the context in which the relations deteriorated and the history to the interaction between the parties, which I am satisfied contributed to the robust nature of discussions. It is within this context that the conduct of the applicant at the workplace on 19 and 20 December, 1996, is to be viewed. Whilst I accept that the respondent had cause to complain over some aspects of the manner in which the applicant progressed the grievances on those occasions, I am not satisfied, having regard to the long standing and less formal manner of interaction between the parties, that the abrupt termination of the employment as a result of the applicant’s manner in the recent events was defensible. The termination of the employment was not defensible in these circumstances and the timing of its implementation constituted it as capricious. I am not satisfied that the termination of the employment on 23 December, 1996, on the terms it was terminated after having offered a voluntary redundancy package as recently as 20 December, or for the reasons it was terminated, was for valid reason. The respondent has not satisfied me that the reason for the termination of the employment was sound, defensible or well founded, nor has he established that the applicant’s acting as a representative of another employee and employees generally as to their superannuation entitlements, was not a part of the reason for the termination of the employment. However I am satisfied that the reason for the termination of employment did not include the fact that the applicant was absent from work on account of short term illness or injury and that there has been no contravention of s170DF(1)(a) of the Act. For the reasons set out herein the termination of the employment was in contravention of s170DE(1) of the Act and for reasons prohibited by ss170DF(1)(d) and 170DF(1)(e) of the Act.
I turn now to the other aspects of the claim.
The applicant claims that the respondent is in breach of an implied term in the contract of employment that the respondent will not conduct himself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee.
Having heard the evidence of the applicant and the respondent, I am not satisfied that the breakdown of personal relations in this case is attributable to the respondent or principally attributable to him. Whilst it is obvious that an employer bears a responsibility to employees not to damage the trust and confidence of the relationship, that responsibility arising under the contract is a mutual one. In this case that responsibility, and the degree of it, is affected by the nature of the relationship between the parties. The nature of the friendly relationship between the parties enabled the applicant to express himself more forcibly and freely, and in a less restrained manner towards the respondent. Similarly the respondent clearly conducted himself in a less businesslike and more casual manner in relation to the applicant. I am not satisfied on balance that the respondent conducted himself in a manner which, having regard to the historically robust nature of the relations between the parties, was in breach of the implied obligation of good faith.
In the recent decision of the House of Lords in Malik v Bank of Credit and Commerce International S.A. 3 WLR 95, relied upon by the respondent, their Lordships in addition to reconsidering the principles as to damages espoused in Addis v Gramophone Co. Ltd [1909] A.C. 488, also considered the nature of the implied obligation. Whilst the case was principally directed to a revisiting of the principles as to damages in Addis, about which I make not finding, pertinent observations were made as to the nature of a breach of the type complained on by the applicant in this case. Their Lordships observed:
(at page 99)
The conduct must, of course impinge upon the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances.
For the reasons set out above I am not satisfied having regard to the history of the relations between the parties and the informality of their past dealings, that the conduct of the respondent was in breach of any implied obligation under the contract. This aspect of the claim for damages is dismissed.
Operation of the Award
It was contended in these proceedings that the applicant was entitled to the benefit of an award of the Australian Industrial Relations Commission.(‘the Commission’) At the outset it is appropriate to note that it was not established in these proceedings that an award was binding by operation of the Act upon the employment of the applicant. There is no evidence before the Court establishing that the respondent was bound by an award as a consequence of being party to an industrial dispute. I am not satisfied that an award applied by operation of the Act. Alternatively it was put that the provisions of an award were said to apply to the applicant as representing the terms of the contract of employment between the parties. Reference was made to the initial Jobstart agreement. I accept that the terms of the Jobstart agreement were likely to have included a provision that the Furnishing Industry - General - Victoria, South Australia and Tasmania - Consolidated Award 1996 [F0029] (‘the Award’) applied. This is consistent with the contents of the other Jobstart agreements available in the proceedings. It was submitted on behalf of the applicant that I should accept that the applicable award would be the Federal Award because the department which supervised the Jobstart program was a Federal Government Department. I do not accept that such a conclusion necessarily follows in the absence of an express or implied agreement between the parties to the contract to that effect. For an award to be relevant in these proceedings it is necessary for a term to be implied into the contract of employment. The relevant principals for consideration in relation to implication of terms into a contract are set out in BP Refinery (Westernport) v Hastings Shire Council (1977) 16 ALR 363. For a term to be implied it must be necessary to give business efficacy to the contract and be so obvious as to go without saying. In Byrne v Australian Airlines Ltd (1995) 131 ALR 422 the High Court considered the circumstances in which the terms of an award are to be implied into the contract of employment. Whilst the High Court decision in Byrne was not addressed in the proceedings, it is relevant to any consideration of the question of how the contractual entitlement is said to arise. It is noted that in Byrne an award already bound the employer as a matter of statutory obligation, and the issue in question was whether any contractual entitlements accrued to the employee as a consequence of the application of the award to the employment. Whilst the present case is different, in that I have found that the Award does not, in the absence of a distinct contractual obligation, bind the employer, nevertheless the observations of the High Court in Byrne as to the contractual entitlements are pertinent. (at pages 427-8)
The implication which the appellants seek to make is based upon the presumed or imputed intention of the parties. In that context, the remarks of the majority in the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363 are frequently called in aid:
"(1) [the implication] must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract".
In laying down those criteria, it was recognised that there was a degree of overlap. Further, as Deane J has observed, (see Hospital Products Ltd v United States Surgical Corp. (1984) 55 ALR 417), the cases in which the criteria in BP Refinery (Westernport) Pty Ltd v Shire of Hastings have been applied in this Court are cases in which there was a formal contract, complete on its face. He pointed out that a rigid approach should be avoided in cases, such as the present, where there is no formal contract. In those cases the actual terms of the contract must first be inferred before any question of implication arises. That is to say, it is necessary to arrive at some conclusion as to the actual intention of the parties before considering any presumed or imputed intention. And the test to be then applied was in a later case formulated by Deane J in these terms (see Hawkins v Clayton (1988) 78 ALR 69):
"The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties."
In this case whilst I accept that there are similarities between some of the Award rates of pay and the pay rate accorded to the applicant, there is no evidence as to the arrangements made between the parties after the expiration of the Jobstart scheme. It is apparent that his employment altered significantly at that time. The evidence is that the applicant was described as a ‘Manager’ or ‘Supervisor’ and it is not apparent from the evidence how this description of the employment falls within the classifications provided for by Clause 36 of the Award. I am not satisfied that there was an agreement between the parties that the terms of the Award from time to time were to be incorporated into the contract of employment. Nor having regard to the principles in BP Refinery am I satisfied that there is any evidentiary basis to imply such a term into the contract. There was no evidence from either the respondent or the applicant as to their intentions as to the operation of the entirety of the Award on the contract after the expiration of the Jobstart agreement and the alteration of the applicant’s employment status.
The Reasonable Notice Claim
I turn now to consider the claim for reasonable notice. Only in the absence of a contractual provision specifying the period of notice will a term be implied into the contract requiring reasonable notice. See in this regard Quinn v Jack Chia Pty Ltd (1991) 43 IR 91 at pages 102 and 103. In view of my finding that the terms of the Award do not constitute the terms of the contract of employment, and in the absence of any other express notice provision, the applicant is entitled to reasonable notice of the termination of the employment. Reasonable notice is to be determined in the circumstances of the employment, having regard to the level of the employment, the responsibilities of the position, the wages earned and the length of the employment. Whilst the applicant was described as a Manager, his duties were apparently those of a Leading Hand Supervisor and his wage rate was relatively low for a supervisory position. The applicant had minimal supervision responsibilities on a day to day basis, however he did take responsibility for the ongoing and overall management of the premises in the absence of the respondent, on occasions for weekly periods. However this responsibility is to be contrasted with the level of the wage paid. The other relevant factors to be taken into account are the length of the employment and the circumstances in which the employment was entered. Whilst there is some evidence of discussions between the parties as to future prospects which might be available to the applicant, I am not satisfied that the employment is readily described as one which was expected to lead to a lengthy career employment. I am not satisfied that his employment could be characterised as sufficiently senior as to warrant in excess of one month notice of termination of employment. The applicant was accorded 3 weeks pay in lieu of notice. The respondent ought to have accorded one month notice of termination of employment. Consequently the applicant is entitled to damages in an amount equivalent to an additional one week of remuneration, that is salary and benefits, which is the sum of $610.00. I turn now to consider the question of remedy arising from s170EE of the Act.
Section 170EE Remedy
No order for reinstatement is sought and in the circumstances of the relations between the parties such an order would be impracticable. The applicant is in receipt of Workcare payments as a consequence of the work related injury and those payments are continuing. I accept that the applicant is unlikely to return to employment in the medium term and that his prospects of finding alternative employment are hampered by his medical condition. The amount claimed by the applicant is the sum of $5,200.00, being the difference between the compensation payments he is receiving and his wage and wage related entitlements including the motor vehicle in relation to the period of six months from the date of termination of the employment.
I am satisfied that the applicant was entitled in the employment to wage related benefits, including the use of the motor vehicle, which resulted in his salary being in the sum of $610.00 per week. The claim for $5,200.00 is based upon the entire remuneration package. That is the amount which will be ordered. Having regard to the circumstances of the employment, and in particular the relations between the parties, I think it unlikely that the employment would have continued for any significant period of time and was unlikely to continue beyond a six month period. I am satisfied that this is the amount of loss sustained by the applicant as a consequence of the termination of the employment and that he is entitled to compensation in that amount. In so finding I am conscious that to some extent the claim for damages for reasonable notice might be said to be relevant for consideration in determining the quantum of any compensible loss arising under s170EE of the Act and I have done so in adopting the figure for compensation contended for by the applicant.
As to the part of the claim for compensation pursuant to sl70EE for mental distress arising as a consequence of the termination of the employment, I decline to make any order for additional compensation. It is clear that a stress related injury arose in the course of the employment, however I am not satisfied that the stress related injury, which is ongoing, is related to the actual incident of termination or consequent upon the termination of employment and that relationship was a fundamental consideration of the Full Court in Burazin v Blacktown City Guardian (1996) 142 ALR 144 in considering compensation for mental distress arising from the termination of the employment. In this proceeding it is apparent that the workplace circumstances and the associated stresses resulted in a compensible injury under the workers compensation legislation, however I am not satisfied that there was anything in the conduct of the employer, in the actual implementation of the termination of the employment, which resulted in mental distress being suffered by the applicant as a direct consequence and compensible pursuant to s170EE of the Act.
The Orders of the Court will be:
Pursuant to Subsection 170EE(3) of the Workplace Relations Act, 1996, the respondent pay to the applicant compensation in the sum of $5,200.00.
The respondent on the contractual claim pay to the applicant damages in the sum of $610.00.
Time for compliance with Orders 1 and 2 herein is 21 days from the date of this Order.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Parkinson
Associate:
Dated: 15 October 1997
APPEARANCES
Counsel for the Applicant:
Mr. R. G. Maxted Solicitor for the Applicant: Baker & Armstrong The Respondent, Mr. C. Hockley, in person.
Date of Hearing: 22, 23, 24 & 25 September 1997 Date of Judgment: 15 October 1997
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