Magagna v FAI Workers Compensation Vic Pty Ltd

[1995] IRCA 519

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION  -    whether repudiation of contract of employment  -  regular daily hire  -  failure of employee to offer himself for work  -  no termination at initiative of employer

INDUSTRIAL RELATIONS ACT  1988 , ss170EA

JASON  IAN  GRAHAM  v FRUGALIS  PTY  LTD               No.  QI95/1075

BEFORE:    BOULTON JR

PLACE:      BRISBANE

DATE:        13 SEPTEMBER 1995

IN THE INDUSTRIAL RELATIONS               )
COURT OF AUSTRALIA  )                    No.  QI  95/1075
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  JASON  IAN  GRAHAM

Applicant

AND:  FRUGALIS  PTY  LTD                  

Respondent

MINUTE OF ORDERS

CORAM:            BOULTON JR

PLACE:              BRISBANE

DATE:                13 SEPTEMBER 1995

THE COURT ORDERS THAT:

1.      The application be dismissed.

THE COURT GRANTS LIBERTY:

1.      To the respondent to file a notice of motion if it wishes to argue the   question of costs, which notice of motion must be served on the   union which represented the applicant at the trial, such filing and   service to occur on or before 22 September 1995.

NOTE:       Settlement and entry of orders are dealt with in Order 36 of the   Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS               )
COURT OF AUSTRALIA  )       No.  QI 95/1075
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  JASON  IAN  GRAHAM

Applicant

AND:  FRUGALIS  PTY  LTD

Respondent

BEFORE:           BOULTON JR

PLACE:              BRISBANE

DATE:                13 SEPTEMBER 1995

REASONS FOR JUDGMENT

Background:

The applicant is now aged 27.  He was employed at the respondent's abattoir at Grantham, Queensland, as a boner on the afternoon shift.  It was common ground that the terms and conditions of his employment were governed by the Federal Meat Processing (Queensland) Industrial Award 1988 ("the award").

It is necessary for a proper understanding of the nature of the applicant's employment to have regard to some of the provisions of the award.  Clause 4 thereof provides:

(a)(i) Employees, except for those specifically engaged as casuals, shall be engaged as regular daily employees, or regular part-time daily employees.

The applicant was a regular daily employee.

Clause 4 goes on to state:

(b) A regular daily employee shall be employed by the day or shift; and without prejudice to the provisions of this Award as to payment for award holidays, sick leave, and annual leave, his or her employment shall terminate at the end of each day or shift on which he or she is employed.

(c)Notwithstanding the termination of his or her employment at the end of each day or shift, the engagement of a regular daily employee shall continue and he (sic) shall remain a regular daily employee until his or her engagement as such is terminated as herein prescribed........ ......

(d)In consideration of the rights conferred on regular daily employees by this Award, a regular daily employee shall attend and offer himself or herself for employment at a place specified by the employer at the normal starting time on each ordinary working day unless notified that on a particular day he or she is not required to attend........ ........ ...

In the week beginning 6 February 1995, the applicant worked on the Monday and Tuesday.  In the morning of Wednesday, 8 February, he learnt from a Mr Barton, a union delegate, that two employees, being Mr Barton himself and a Mr Hoger, had been suspended from work.  Mr Barton also told him that the workers had been told by Mr Doube (a consultant to the respondent) that if they did not want to work under Mr Doube's terms, they were to leave the plant. 

Mr Barton told the applicant that there was going to be a meeting that afternoon.  The applicant attended the afternoon meeting, at which Mr Barton reported on events at the workplace that morning.  The workers then formed a picket-line at the entrance to the respondent's premises, which line the applicant joined.  He was part of the picket for 25 days, the picket lasting for 12 weeks.  The applicant did not ever resume work for the respondent.  On 5 April 1995 he signed a document which read:

I hereby give notice that I wish to terminate my employment with this company, of my own accord, as of 5.4.95 and that I would like all monies owing to me to be paid in full.

The applicant has since obtained and kept other employment.

Issues:

On behalf of the applicant it was contended that management's directive to workers at the morning meeting of 8 February amounted to a repudiation of the contract of employment between the respondent and its employees, such that the applicant was entitled to not attend and offer himself for employment at the normal starting time of his shift on that day.  It was further contended that the applicant's resignation was not a true resignation, he being forced to sign the letter of resignation before the respondent would pay him any outstanding monetary entitlements.

The respondent's case was, in essence, that the relationship of employment continued until the applicant's resignation of 5 April, despite the applicant's failure to present himself for work since he finished the afternoon shift of 7 February 1995.  There was no repudiation of the contract of employment.  There was no termination of the applicant's employment at the initiative of his employer.

Findings:

The 8 February morning meeting of workers continued beyond normal starting time for the morning shift.  Mr Doube, to whom I have earlier made reference, addressed that meeting after normal starting time.  I accept that, amongst other things, he said words to this effect:

This is private property.  You're employed to come here and work.  If you're not going to work, then leave the premises.

After that admonition, the workers left the premises, and formed the picket-line.  While a few workers did work that day, the great majority, of both the morning and afternoon shifts, and the slaughter-floor crew, did not.

The union of which the applicant was a member served notice on the respondent's solicitors at about 10.18 am on 8 February of protected action in the nature of an indefinite stoppage of work from Saturday, 11 February, at the respondent's Grantham premises.

The respondent did not at any time close the gate to its premises, so as to effect a lock-out of its workers.  It offered work to any of those who would accept it, including at the start of the afternoon shift of 8 February.  Work continued to be performed at the premises, on 8 February, and subsequently.  Some workers crossed the picket-line.  These numbers gradually increased as the picket wore on.  Perhaps 40 or 50 of those 90, or thereabouts, who attended the morning meeting of 8 February have since returned to work with the respondent.

The applicant was not forced to sign the letter of resignation.  His impression that the only way he would be paid his outstanding entitlements was if he signed the form was not engendered by anything said or done by the respondent.

The applicant contended in evidence that he was always prepared to work on 8 February, and thereafter, but only in accordance with the terms and conditions of the award.  When pressed to say what he would not have got under the award if he had gone to work on 8 February, he was unable to point to anything.  While it no doubt would not have been an easy thing for him to break ranks and cross the picket-line, he chose to take part in strike action.  From 8 February to the time of his resignation, he failed to offer himself for work, as required by the terms of the award.  Work was available to him in this period.  On 5 April 1995 he resigned, and took his outstanding entitlements.  There was no termination of the applicant's employment at the initiative of his employer.

I make no findings as to the lawfulness or otherwise of the suspensions of the workers Barton and Hoger; likewise in respect of the workers' apparent grievances with management about, inter alia, the payment of waiting time.  These are issues which do not properly arise for determination in these proceedings.

Order:

The order I make is that the application be dismissed.

The respondent is at liberty to file a notice of motion if it wishes to argue the question of costs, which notice of motion must be served on the union which represented the applicant at trial, such filing and service to occur on or before 22 September 1995.

I certify that this and the preceding __________ (    ) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  13  September  1995  

Appearing for the Applicant:              Ms F. Robinson

Counsel for the Respondent:              Mr Murdoch

Solicitor for the Respondent:             Quinn, Ryan & Scattini

Dates of hearing:  5 and 6  September  1995

Date of judgment:  13  September  1995