Luke Bateman v Divisional Holdings Pty Limited (first respondent) and Paul Hicks (second respondent)
[1996] IRCA 60
•19 Feb 1996
DECISION NO: 60/96
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - Employee or Independent Contractor - No VALID REASON - No PROCEDURAL FAIRNESS - UNJUST - REINSTATEMENT IMPRACTICABLE - COMPENSATION.
Industrial Relations Act 1988 ss 170DB, 170DC, 170DE ,170EA, 170EE
Stevens v Brodribb Sawmilling Company Pty Limited (1985-6) 160 CLR 16
Humberstone v Northern Timber Mills (1949) 79 CLR 389
Re Porter, Re Transport Workers Union of Australia (1989) 34 IR 179
Jones v Dunkel (1959) 101 CLR 298
Vabo Proprietary Limited v Commissioner of Taxation 30 ATR 303
Baster v London and County Printing Works (1899) 1 QB 901
LUKE BATEMAN -v- DIVISIONAL HOLDINGS PTY LIMITED (first respondent) and PAUL HICKS (second respondent)
No. NI 2300 of 1995
COURT: PATCH JR
PLACE: SYDNEY
DATE: 18 & 19 JANUARY 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY
No. NI 2300 of 1995
BETWEEN:
Luke Richard BATEMAN
Applicant
AND:
DIVISIONAL HOLDINGS PTY LIMITED
1st Respondent
AND:
Paul HICKS
2nd Respondent
MINUTES OF ORDER
THE COURT ORDERS THAT:
The first respondent pay compensation to the applicant for the unlawful termination of his employment in the sum of $8,780.00 (gross) within 21 days of today.
The first respondent pay damages to the applicant for wages in lieu of notice in the sum of $540.00 (gross) within 21 days of today.
The first respondent deduct tax at the appropriate rate from each of the above sums and the balance only be paid to the applicant.
Liberty is given to relist the matter if agreement cannot be reached on the appropriate amounts of taxation to be deducted.
Note: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY
No. NI 2300 of 1995
BETWEEN:
Luke Richard BATEMAN
Applicant
AND:
DIVISIONAL HOLDINGS PTY LIMITED
1st Respondent
AND:
Paul HICKS
2nd Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore - revised from transcript)
18 & 19 January 1996 Patch JR
This is an application under section 170EA of the Industrial Relations Act 1988, hereinafter called "the Act".
The first issue to be determined is this: was the applicant an employee of the first respondent, Divisional Holdings Pty Limited or the second respondent, Mr Paul Hicks?
The determination of this question depends significantly on the nature of the relationship between the first and second respondents. That is to say, was the second respondent an employee of the first respondent, or was the second respondent a subcontractor, or an independent contractor engaged by the first respondent?
If the second respondent was an employee of the first respondent, it follows that he must have been acting in that capacity when he dealt with the applicant. That would strongly suggest that the applicant was not the employee of the second respondent, Mr Hicks, but the employee of the first respondent. So I first have to determine the question of the nature of the relationship between the second respondent and the first respondent.
In the well known case of Stevens v Brodribb Sawmilling Company Pty Limited, (1985-6), 160 CLR 16 Mason J, and Brennan and Deane JJ, (who agreed with him), said this at page 24, in respect of the question of whether the relationship between the plaintiffs and the defendant was one of employer and employee or one of principal and independent contractor:
"A prominent factor in determining the nature of the relationship between the person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it."
His Honour cited the judgment of Dixon J in Humberstone v Northern Timber Mills, (1949) 79 CLR 389 at page 404, as follows:
"The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions."
Mason J went on to say:
"But the existence of control whilst significant is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this court has been to regard it merely as one of a number of indicia which must be considered in determination of that question."
He continued as follows:
"Other relevant matters include but are not limited to the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee."
In the same case, their Honours, Wilson and Dawson JJ, said at page 35:
"The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending on whether the engagement subjects the person engaged to the command of the person engaging him not only as to what he shall do in the course of his employment but as to how he shall do it."
Their Honours went on to say:
"The modern approach is, however, to have regard to a variety of criteria."
They went on to say at pages 36 and 37:
"The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like."
"Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance."
In the case of Re Porter, Re Transport Workers Union of Australia (1989), 34 IR 179 his Honour, Gray J, said, at page 184:
"A court determining whether a particular relationship is that of employment or of some other kind can therefore only resort to the process of balancing all of the factors, or as they are called in Stevens and other cases the "indicia". "
He went on to say:
"The court will always look at all of the terms of the contract to determine its true essence and will not be bound by the express choice of the parties as to the label to be attached to it. ....... the parties cannot create something which has every feature of a rooster but call it a duck and insist that everybody else recognise it as a duck."
That last mentioned passage has some significance in this case because of the evidence that the terminology used during the relevant period by the respondents to describe the relationship between them involved the second respondent being a “subcontractor”.
Well, what then are the particular circumstances of this case, what are the indicia? There are factors or indicia pointing in both directions and I have weighed them up to reach a balanced view.
Counsel for the first respondent pointed out helpfully a number of factors which in his submission support the contention that the second respondent was a sub-contractor of the first respondent. They are as follows:
The first respondent is a security company which contracts with various organisations to provide security services. Of relevance to this case is the first respondent's contract with various organisations to provide security guards to visit those organisation's premises, in the normal way, to check that there have been no break-ins and that everything is okay and so on and so forth.
Prior to the end of March or early April 1994, the particular "run" that the second respondent had responsibility for - the run which covered an area between the city at one point of the compass; Marrickville at another; Vaucluse at another; Ramsgate at the other - was the responsibility of an organisation called Kedron Security. There is no evidence as to the nature of Kedron Security, whether it was an individual person's trading name or a corporation, but the second respondent was, according to his uncontradicted evidence which I accept, an employee of that entity, Kedron Security.
At about the end of March or the beginning of April 1995, Kedron Security ceased to have any function in respect of the security run in that area and the second respondent was engaged directly by the first respondent to take over responsibility for that run.
Counsel submits that as Kedron Security was a contractor it follows that so, too, was Mr Hicks.
The second fact that Mr Moore, counsel for the first respondent, points to is that the second respondent said to the applicant when the applicant started working as a patrolman that the applicant was to work for a trial period. Mr Moore submitted that although Mr Hicks (the second respondent) told the applicant that he, the applicant, was to work for a "trial" period as a patrolman (having until then worked for the first respondent as a security guard at a building called Northpoint in North Sydney), Mr Pahl, the General Manager of the first respondent, did not tell Mr Hicks that the applicant was to work for a trial period.
On analysis of the evidence, this submission is not well founded. The true nature of the evidence is that there is no evidence one way or the other whether or not Mr Pahl told Mr Hicks that the applicant was to work for a trial period.
The third factor or indicia that Mr Moore points to is that Mr Hicks, the second respondent, paid the applicant out of money paid generally to him, Mr Hicks, by the first respondent. In my opinion, that is a factor which suggests that the second respondent was a sub-contractor of the first respondent.
The fourth factor or indicia that Mr Moore points to is that at or shortly after the time the applicant started working as a patrolman doing the run in the area that Mr Hicks had responsibility for, a time and wages record re: the applicant was commenced by Mr Hicks. That time and wages record is exhibit 4 and it has at the top of the page a heading, Employers Name, and written in hand next to that Paul Hicks Security Services. In my opinion, the fact that Mr Hicks brought into existence a time and wages record for the applicant rather than Mr Hicks simply relying on the applicant's employment details continuing to be recorded by the first respondent suggests that Mr Hicks regarded himself as having direct responsibility to maintain those records. That in turn suggests that Mr Hicks was a sub-contractor of the first respondent.
Related to that is the fact that the mode of payment of the applicant for the work that he performed changed when he moved from being a "static" security officer at Northpoint to a patrolman. Previously, at Northpoint, he had been paid by cheque. As soon as he started being a patrolman, he was paid in cash by Mr Hicks. Indeed, there was only one such payment but it was a significant change, which suggests a change in the employment relationship and suggests that Mr Hicks had some individual discretion as to the mode of payment of the applicant. That suggests that he, Mr Hicks, was independent of the first respondent.
Also, tax was taken out by Mr Hicks when that cash payment was made by him to the applicant. That again, suggests an independent responsibility on Mr Hick's part to do that-which suggests that he was an independent contractor.
On the other hand, there are some factors which suggest that Mr Hicks, the second respondent, was an employee of the first respondent and not an independent contractor. In his address on this point, Mr Giagios, counsel for the applicant (whose submissions which were adopted by Mr Hicks), pointed out the following factors or indicia as suggestive of the conclusion that the second respondent was an employee of the first respondent.
Firstly, Mr Giagios submitted that the principle benefit of the work done by the applicant was to the first respondent, not to Mr Hicks.
In my opinion, that is a circular argument and capable of going both ways. On analysis, the second respondent would have earned about $180 per night for the 12 hour shift of the applicant, whereas the applicant was paid only $144. Mr Hicks, therefore, made a small profit from the fact that the applicant did a shift.
The second factor that Mr Giagios points to is that Mr Hicks could only do work for the first respondent and was prohibited from doing work for any other person or organisation. In my opinion, that is a factor which suggests that Mr Hicks was an employee and not an independent sub-contractor. This is because independent sub-contractors by their nature are free to work for other people. Employees by their nature are not free to work for other people or other organisations apart from their employer.
Thirdly, Mr Pahl, according to Mr Hicks' uncontradicted evidence, was the person who made the decisions about who Mr Hicks could hire to work on that particular security run and who Mr Hicks had to fire. That is a significant element of control over Mr Hicks in the performance of the duties that he had in relation to the first respondent.
Mr Pahl was not called to contradict Mr Hicks' evidence. I therefore accept Mr Hicks' evidence on that point. See Jones v Dunkel (1959) 101 CLR 298. That is, in my opinion, a significant factor suggesting that Mr Hicks was not an independent contractor.
Fourthly, there was a very significant degree of control, apart from the question of the power to hire and fire, which was exercised by Divisional Holdings, the first respondent, over the second respondent. This included how the security run was to be done, and the priority to be given to various parts of that security run. There was a contract between Divisional Holdings and the State Education Department for security over schools in the particular area and Divisional Holdings had directed Mr Hicks to give priority to servicing that particular part of that security run.
All matters were to be reported to the control room of the first respondent. All persons engaging in work in respect of this particular security run wore the uniforms of the first respondent, they drove cars labelled with the logo of the first respondent. All equipment was provided by the first respondent, including - and I regard this as important - guns. The shifts were determined by the first respondent and they were to be normally 12 hour shifts. That was a decision of the first respondent, not a decision of Mr Hicks.
The notion of flexibility is a matter which is at the very heart of the relationship of principle and independent contractor. An independent contractor is a person or an entity which has a significant degree of flexibility in relation to the principal. See Vabo Proprietary Limited v Commissioner of Taxation 30 ATR 303, at page 308.
In this case, Mr Hicks had very little flexibility at all as to how he could perform the duties which he was required to perform as a result of the relationship between himself and the first respondent.
As Gray J said in Porter, cited above, the decision of a court in respect of the nature of the relationship between the parties, "may be a matter of impression."
In this case, the significant degree of control exercised by the first respondent over the duties performed by the second respondent on a day to day and even on an hour to hour basis, including the lack of flexibility of the second respondent, and the fact that the power to hire and fire was not in Mr Hick's hands, are strongly suggestive of an employer/employee relationship.
Taking into account the evidence as a whole, and including the particular matters to which I have made reference, and balancing all of the "indicia" as required by Stevens, in my opinion, the relationship between the first respondent and the second respondent was one of employer and employee.
That strongly suggests that the applicant was not the employee of the second respondent, but was the employee of the first respondent.
Furthermore, there are some other indicia which suggest, in my opinion, that the applicant was an employee of the first respondent.
Firstly, the applicant was never told that he was no longer employed by the first respondent. It is an uncontested fact that he was an employee of the first respondent during the time that he worked at the Northpoint building. What happened was that it was decided, apparently mutually, that the applicant would be better off working as a patrolman and Mr Pahl directed him to Mr Hicks without ever saying to the applicant that Mr Hicks was going to be his new employer.
Mr Hicks never told the applicant that he, Mr Hicks, was going to be the applicant's new employer. The applicant at all times believed that he was still an employee of the first respondent.
There is also the existence of exhibit 3 which is a letter from Mr Lou Raskovic who styles himself as the general manager of Divisional Holdings Pty Limited, the first respondent, dated 28 April 1995, as follows:
"This is to confirm and verify that Luke Richard Bateman is employed by this company as a security patrol officer. This position earns Luke a salary of $880 per fortnight plus additional bonuses of $200 per fortnight. Should you require further details please contact the undersigned.
Yours sincerely,
Divisional Holdings Pty Limited,
Lou Raskovic,
General Manager."
That suggests that the applicant was, as the letter says in terms, an employee of the first respondent. Mr Raskovic was not called to contradict the assertion made by him in that letter, or to explain it in some way. In my opinion that gives rise to an inference that his evidence would not have assisted the first respondent's case. See Jones v Dunkel (1959) 101 CLR 298.
I also take into account the fact that Mr Pahl was the man who made the decision to terminate the applicant's employment's, not Mr Hicks.
I have again balanced all of the factors, all of the indicia, and I pay particular attention to the degree of control exercised by the first respondent directly over the applicant.
I conclude that the applicant was an employee of the first respondent.
JUDGMENT CONTINUED, 19 JANUARY 1996
This is the continuation of the judgment which I commenced yesterday. Yesterday I determined that the applicant was an employee of the first respondent, Divisional Holdings Pty Limited.
The first issue to be determined now is whether or not the termination of the applicant's employment was unlawful.
Was there a valid reason for the termination of the applicant's employment?
The applicant commenced employment with the first respondent in March 1995 as a casual security officer. He then progressed to permanent employment with the first respondent working at an office block in North Sydney called Northpoint. In mid April the applicant approached Mr Steven Pahl, the general manager of the first respondent - hereafter called the respondent - and asked if he could move from what was a static security officer position at Northpoint to a job involving patrol work.
Mr Pahl directed the applicant to Mr Paul Hicks who, as I found yesterday, was also an employee of the respondent, Mr Hicks being the second respondent to these proceedings. The applicant commenced work as a patrol officer on 21 April 1995. He performed 10 shifts as a patrol officer, on 21, 22, 23, 24 and 25 April and then 29 and 30 April and 1, 5 and 6 May.
The respondent argues through it's counsel that there were several occurrences during the time that the applicant worked as a patrol officer which, taken together, amounted to a valid reason for the termination of his employment. These factors were as follows:
the loss of an electronic wand;
regular lateness;
inability to be contacted;
not performing patrols in the manner required;
sleeping on the job.
I will deal with each of those matters as they appear in the above list.
Firstly the loss of the wand. The wand is an electronic device which is simply tapped onto receptors at the sites patrolled by the security officers engaged by the respondent and which automatically records the fact that a patrol officer has visited the site and when. It is an expensive piece of equipment, costing between $2000 and $2500. The applicant was given such a device when he commenced work on 29 April and by the end of that shift he did not have it any more. His explanations as to what happened are in my view unsatisfactory and the logical conclusion is that he did not look after it properly and he lost it.
However, as Mr Giagios, counsel for the applicant, points out, the loss of the wand was an isolated incident and there is no evidence as to the real impact on the applicant's employer in respect of disruption of work or economic loss. There is no evidence as to whether or not the wand was insured. Nonetheless, it was an expensive piece of equipment and its loss is not a trivial thing.
The second matter is the applicant's lateness for work. There is no doubt that on a number of occasions, particularly in the last week of his employment, the applicant was late for work. He was meant to start work at 1800 hours and on several occasions was late. This is evidenced by the gun register which records the time at which patrol officers sign guns out before they go on patrol. The gun register is signed when the guns are taken out, which occurs very shortly after patrol officers arrive at work, so it is a reliable indicator of the time at which the applicant arrived at work.
It is important for security officers to be on time because the premises which they are meant to be patrolling are, except for on-site alarms, unprotected when security officers are not at work. If they simply show up late or show up late for work without proper notice, then problems can occur at the sites which are meant to be protected, which problems cannot be responded to adequately. So again, regular lateness is not a trivial matter.
The third matter is the applicant's alleged inability to be contacted. This was principally, as it turned out, an inability to be contacted on the days that the applicant was not rostered for work. I accept the applicant's evidence that he was not told he had to work (not rostered) on 26, 27 and 28 April and the 2, 3 and 4 May. Therefore, the fact that he was unable to be contacted on the days that he was not rostered to work is not a matter of censure. He was an employee, right at the bottom of the chain of command, not in a management position. It is not reasonable to expect him to make himself available to be contacted on his days off, so I do not regard that as a matter of any importance whatsoever.
The fourth matter was non-performance of patrols in the manner required. This had two aspects, the non-attendance at Glenmore Road Public School in Paddington on 5 May 1995 and the non-attendance at the Kahla Gift Warehouse on 6 May 1995. The applicant in my opinion gave no satisfactory reason for the non-performance of the check at Glenmore Road Public on 5 May 1995, but I do accept that he had not been properly trained in respect of the location of the Kahla Gift Warehouse and his non-attendance at that site therefore is not a matter for censure.
The non-performance of a check at a public school in the circumstances where his employer had an important contract with the state education system to provide security at schools again is not a trivial matter. However, it has to be put in context. It was an isolated failure and it was a failure by an inexperienced patrol man who started work very recently.
The respondent also relied on the late reporting of the applicant's illness on 7 May 1995, a day upon which he was rostered to commence work at 1800 hours. The respondent's control room log book, exhibit 6, records that the applicant's girlfriend phoned at 1511 hours and reported that the applicant was suffering from the flu and unable to come to work. If that was the first time that the applicant had taken steps to report that he was too sick to come to work, then it would have been a rather tardy reporting of illness. But I would not have regarded it as a matter so serious that it could properly be taken into account as a valid reason for the termination of his employment.
However, the applicant gave evidence that he did try and contact Mr Hicks who, on any view of the matter, was his superior in the organisation, and who organised his rosters. He said that he tried to contact Mr Hicks sometime before 1500 hours.
The respondent's log book, exhibit 6, shows that the respondent's control room tried to contact Mr Hicks at 1524 hours, and again, a short time later, and that Mr Hicks' mobile phone was off and his home phone was not being answered. In those circumstances I accept the applicant's evidence that he did try and contact Mr Hicks earlier than 1500 hours. In my opinion his failure to contact Mr Hicks was because Mr Hicks was not at home (or not answering his home phone) and did not have his mobile phone switched on. So, there can be no censure directed to the applicant for the "late" reporting of his illness on 7 May.
By way of factual filling in, the illness that the applicant was suffering from was, in fact, very bad tinea which had caused his feet to bleed during the performance of his shift the night before. I do not know why the applicant's girlfriend told the control room that he had the flu, but in my opinion it does not matter. I accept that the applicant was genuinely unfit to perform his duties on the evening of 7 May 1995.
The second aspect of this alleged non-performing of patrols in the manner required was what was said to be a "blow out" in the response times to alarms in the school system. The evidence established that, prior to the applicant commencing employment as a patrol officer, the average response time was 13 to 14 minutes. But that, after he commenced work as a patrol officer, the average response time to such alarms was 35 minutes.
However, such raw statistics are of little assistance. If there were only two or three responses, each of which was of 35 minutes, then naturally the average response time would be 35 minutes. If there was one response time the average response time would be 35 minutes. Without evidence as to the number of slow responses during the time that the applicant was working as a patrol officer the raw statistic does not assist me very much. That lack of assistance is compounded by the fact that there is no evidence as to the number of slow responses by the applicant personally, as opposed to evidence of the average response times.
So, in the absence of evidence about each of those potentially significant matters, I do not regard the evidence as to the blowout in the response times as a matter for which the applicant can fairly be held by the Court to be responsible.
The fifth matter was called "Sleeping on the job". The applicant was cross-examined to the effect that he had had a two hour sleep on duty on one of his shifts at about the end of April on the day that the wand was lost (probably
29 April 1995).
Despite the blunt cross-examination to the effect that he had been sleeping on duty, when Mr Osborne, the control room manager of the respondent, was called to give evidence it turned out that all that had happened was that the applicant was asleep on the couch in the foyer, at 8.30 in the morning, after he had finished work. There is, therefore, no basis upon which the applicant could ever have been censured for sleeping on the job, because he in fact never did that.
It was the totality or the cumulative effect of the applicant's breaches of appropriate performance standards that the respondent in the end relied upon to terminate his employment. Mr Hicks made that quite clear in his evidence, repeating his opinion and the opinion of Mr Pahl. But the applicant's performance has to be put into context. The applicant was an inexperienced patrol officer. He only ever did 10 shifts. He is a young man. Furthermore, not only had he worked only 10 shifts, it was only for a very short period from 21 April until 6 May 1995.
In those circumstances, in my opinion, the respondent had no proper basis upon which to reach the conclusion that it did, namely: that the applicant was never going to perform properly as a patrol officer because he was simply too unreliable. In my opinion, there is no sufficient basis on the evidence before me upon which such a conclusion could be reached.
Therefore, the termination of the applicant's employment was not for a valid reason, and was unlawful, being a breach of section 170DE(1) of the Act.
Was there a lack of procedural fairness - and therefore a breach of section 170DC or 170DE(2) of the Act?
Counsel for the respondent argued that the applicant's misconduct justified summary dismissal because in totality his conduct amounted to such a neglect of duty that he had in effect, repudiated his contract of employment, thereby justifying his summary dismissal. He relied upon the case of Baster v London and County Printing Works (1899) 1 QB 901.
In my opinion, for much the same reasons as I rejected the proposition that there was a valid reason for the termination of the applicant's employment, there was no serious misconduct justifying summary dismissal. There was certainly no neglect of duty over a period of time justifying summary dismissal.
This is because, firstly, in my opinion, the neglect of duty was not sufficient to warrant dismissal in any case. And secondly, the period of time was very, very short. That finding of no serious misconduct is also relevant to the question of damages under section 17DB of the Act.
The applicant was summarily dismissed. Mr Pahl contacted Mr Hicks and told Mr Hicks, to quote Mr Hicks' evidence, to "get rid of him". That is exactly what Mr Hicks did. He telephoned the applicant, (and I accept the applicant's evidence that this telephone call occurred on late afternoon or early evening on 7 May 1995) and asked the applicant "What's going on?" The applicant told Mr Hicks that he had cracked bleeding feet and that he was unable to go to work because of that condition. Mr Hicks responded by saying "Bullshit, don't bother coming in again, you piece of shit".
It was the words "don't bother coming in again, you piece of shit" by which the applicant's employment was terminated. That was an abrupt and summary dismissal. The applicant had no opportunity to respond to the criticisms concerning his conduct or performance. There was no reason why he could not have been given such an opportunity. The termination of his employment was therefore a breach of 170DC of the Act.
Furthermore, the unjustifiably abrupt and summary nature of his dismissal rendered the termination of his employment "unjust" within the meaning of section 170DE(2) of the Act. Therefore, even if there were to be an otherwise valid reason for the termination of the applicant's employment, it would be deemed to be not for a valid reason because of the provisions of section 170DE(2).
Remedy
Both the applicant and the respondent submit that the reinstatement of the applicant would be impracticable. I accept that to order to his reinstatement would be impracticable for the following reasons:
The manner of his dismissal was extremely rude and abrupt and the applicant became very upset as a result of that. That would colour his employment with the respondent if he ever were to return there.
Secondly, his employment was terminated on 7 May 1995, which is a long time ago. Both the respondent and the applicant have settled into ways of working apart and it would be too disruptive to return the applicant to his former employment.
Thirdly, the manner of his dismissal and the attitude shown by the management of the respondent would result in a significant degree of disharmony if the applicant were to return to work. This is despite the fact that neither Mr Hicks nor Mr Pahl remain in the employ of the respondent.
Fourthly, the applicant does not seek reinstatement. In my opinion that is a relevant factor, although not necessarily a determinative one, on the question of the impracticability of an order for reinstatement. The Courts cannot order persons to return to work where they do not want to work.
The remedy therefore is compensation under section 170EE(2) of the Act.
Under section 170EE(3) of the Act, the Court in working out the amount of compensation for the purposes of subsection (2), is to have regard to the remuneration that the employee would have received or would have been likely to have received if the employer had not terminated the employment of the applicant.
In my opinion, if the employment of the applicant had not been terminated and he had been given the chance to overcome those short term problems, in particular punctuality, the applicant would have applied himself more diligently, (a diligence generally demonstrated during the course of his employment up until 29 April), and he would have returned to a satisfactory level of performance. It is likely therefore that his employment would have continued and I assess the amount of compensation which is appropriate in that light.
The applicant found another job some time around 20 August 1995 and continues in that employment. That is a casual job at the Sydney Convention Centre at Darling Harbour. His hours vary, as do his rates of pay. Prior to commencing in that job he worked a few shifts for another security company earning a relatively small amount of money. The evidence is not clear as to the amount of money he earned but I am content to regard that as approximately equivalent to one week's work at his previous employment.
It is an agreed fact under section 191 of the Evidence Act that the applicant's average earnings with the respondent were $540 per week (gross) and I will assess the amount of compensation which I consider to be appropriate on that basis.
I assess compensation as follows. There was a period of approximately nine weeks between 7 May and 20 August. I deduct from that one week to allow for the few shifts that the applicant worked with that other security company.
The applicant is also entitled to damages under section 170DB of the Act and there is an overlapping period there, so I also deduct a further week from the amount of compensation to which the applicant is entitled.
$540 times 7 comes to $3,780.00, which is the amount of his loss until he obtained his current job.
The applicant's current employment is casual, his earnings vary and by its very nature it is not secure. In my opinion, it is likely that the applicant will suffer a continuing economic loss as a result of the termination of his employment by the respondent. It is always difficult to quantify such continuing economic losses but I take into account the applicant's evidence that his current job is, in his opinion, likely to continue.
I take into account the fact that it is casual and by its nature not as secure as a permanent job, and that his earnings vary. I assess a figure of $5,000.00 as being appropriate for ongoing economic loss.
I also will order the sum of $540.00 to be paid to the applicant by the respondent as damages under section 170DB of the Act.
The orders that the Court makes are as follows:
That the first respondent pay compensation to the applicant for the unlawful termination of his employment in the sum of $8,780.00 (gross) within 21 days of today.
That the first respondent pay damages to the applicant for wages in lieu of notice in the sum of $540.00 (gross) within 21 days of today.
That the first respondent deduct tax at the appropriate rate from each of the above sums and that the balance only be paid to the applicant.
Liberty is given to relist the matter if agreement cannot be reached on the appropriate amounts of taxation to be deducted.
I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch.
Associate: Caroline Sternberg
Date: 28 February 1996
APPEARANCES
Counsel for applicant: Mr G Giagios
Counsel for first Respondent: Mr R Moore
Second Respondent: In person
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