Manikantan v Instrument Data Communications Pty Ltd
[1997] IRCA 145
•21 April 1997
DECISION NO:145/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - CONDUCT AND PERFORMANCE - VALID REASON - BREACH OF CONTRACT - HARSH, UNJUST OR UNREASONABLE - SERIOUS MISCONDUCT - TERMINATION PAY - COMPENSATION
Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988 (C'th)) Ss 170DB, 170DE(1), 170EA, 170EE(3)
Australian Telecommunications Commission v Hart [1982] 65 FLR 41
Nettlefold v Kym Smoker Pty Ltd, unreported, IRCA 469/96, Lee J, 4 October 1996
Woods v W.M. Carr Services (Peterborough) Ltd [1982] ICR 693
KARIADATH THANANGAR MANIKANTAN -v-
INSTRUMENT DATA COMMUNICATIONS PTY LTD
WI 1476 of 1996
Before: BOON JR
Place: PERTH
Date: 21 APRIL 1997
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1476 of 1996
B E T W E E N:
KARIADATH THANANGAR MANIKANTAN
Applicant
A N D:
INSTRUMENT DATA COMMUNICATIONS PTY LTD
Respondent
MINUTE OF ORDERS
21 APRIL 1997 PERTH BOON JR
THE COURT ORDERS AND DECLARES THAT :
The respondent has breached the provisions of section 170DB and section 170DE(1) of the Workplace Relations Act 1996.
The respondent pay to the applicant the sum of $1,846.60 by way of payment in lieu of notice, within 21 days of the date of this order.
The respondent pay to the applicant the sum of $12,000 compensation, within 21 days of the date of this order.
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 )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1476 of 1996
B E T W E E N:
KARIADATH THANANGAR MANIKANTAN
Applicant
A N D:
INSTRUMENT DATA COMMUNICATIONS PTY LTD
Respondent
REASONS FOR DECISION
21 APRIL 1997 BOON JR
INTRODUCTION
This is an application under section 170EA of the Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) (the Act) for relief arising out of the alleged unlawful termination of the applicant's employment by the respondent. The applicant, Mr Manikantan, concedes that reinstatement would be impracticable and accordingly seeks payment of compensation only. On behalf of Mr Manikantan it is alleged that the provisions of the Act have been breached in several ways. In the first place, it is alleged that the termination contravened the provisions of section 170DB of the Act in that Mr Manikantan was not given any notice of the termination nor any payment in lieu of notice. In relation to that allegation the respondent, Instrument Data Communications Pty Ltd (IDC), states that it was not required to give notice as Mr Manikantan was guilty of serious misconduct. That is denied by Mr Manikantan.
In the second place, it is alleged that IDC did not have a valid reason for the termination as required by section 170DE(1) of the Act. IDC alleges that there was a valid reason for the termination of Mr Manikantan's employment, namely, that he refused to obey a lawful and reasonable direction given to him by his employers. Briefly, Mr Manikantan was directed by his employers to fly to Brisbane in late October 1996 and conduct a workshop on practical fibre optics for industry. Mr Manikantan refused to conduct that workshop by himself on the grounds that he had no practical experience with fibre optics and had not been adequately trained by his employers to conduct the workshop.
BACKGROUND
IDC's own literature states that it is a specialist in the field of industrial communications, automation and control and has been providing high quality training for the past six years on an international basis from offices around the world. A significant part of IDC's business is in conducting training workshops for practitioners in the communications, automation and control industry. It also provides consultancy services.
Mr Manikantan is a qualified engineer with 13 years' experience in systems and networking. His primary area of expertise is in computing systems and networking. He has worked both as an engineer and as a lecturer in TAFE and university. In early 1995 he answered an advertisement from IDC calling for applications for a position with the company. He attended two interviews and gave a practical demonstration of his skill before he accepted a position with the company. Mr Manikantan was provided with a written offer of employment which purported to contain the conditions of his employment with IDC. Mr Manikantan states that he made a few amendments to the document and signed it. Clause 1-1 of the contract states in part as follows:
"You will be employed on the basis that you are initially required to study, train and satisfactorily deliver two existing IDC workshops. Satisfactory cross training on further workshops will attract an allowance in the vicinity of $1,500."
Clause 2 states as follows:
"2.0 OVERALL JOB DESCRIPTION
2.1The main reason for your employment is to run industrial training workshops, develop further courses and undertake consulting activities.
2.2An overall company business plan in which you will play a key role has been prepared and is currently implemented.
2.3 To assist with the other activities of Boston Technology."
Boston Technology was the former parent company of IDC. Clause 3 sets out a brief summary of the daily duties which include presentation of training courses at selected venues in Australia and around the world; assistance with marketing and market research for the training courses; preparation of revisions to the training course notes; preparation of new training courses; and assistance with consulting activities. Clause 4 states as follows:
"4.00 TIME AWAY FROM HOME
As discussed, it is highly likely that you will spend two to three weeks a month promoting and presenting the training courses. This is a KEY PART of the job. It is, however, anticipated that once we have wrapped up to optimum level of courses in each market, anticipated to be June, 1996, we will have the services of other instructors and you will play a more supervisory role with far less time away."
When Mr Manikantan started with IDC he was given two workshops to conduct. Those workshops related to matters within his area of expertise and were called "Practical Local Area Networks" and "Practical Data Communications". Mr Manikantan's evidence was that he received training in how to conduct these workshops before he did them himself. As part of the training, he attended a Local Area Network workshop to see how it was presented. This took place in the United States of America. The subsequent workshops were done by him. He needed no further training in local area networks because it was his area of expertise. Mr Manikantan's evidence was that he sat through a complete training course in the U.S.A. for the data communications workshop. He sat through three workshops at the end of June to early July and then gradually took over the conduct of those workshops himself. He said that he presented more than fifty workshops in these two areas over the following months. As was stated in the contract of employment, the work involved Mr Manikantan's absence from his home in Perth for extended periods. Each member of staff was given a roster setting out which workshops each lecturer was to present over the ensuing months. Mr Manikantan's evidence was that in June or July 1996 he noticed that he was rostered to do a fibre optics workshop in October 1996.
THE FIBRE OPTICS WORKSHOP
Mr David Bailey, the engineering manager for IDC who was also a director of the company, wrote the company's fibre optics manual. It was a new workshop conducted by IDC and preparation of the course was completed in the latter half of 1996. Mr Bailey's evidence was that he prepared a manual for the fibre optics course in conjunction with other people on the staff. Mr Bailey did the great majority of it. He asked Mr Manikantan to have a look at it in around May 1996. Mr Manikantan gave Mr Bailey some feedback in relation to grammar, typographical errors and some feasibility. Mr Bailey recalled telling Mr Manikantan in about May 1996 that he would be allocated a fibre optics workshop. He said it was discussed with Mr Manikantan, Mr Bailey, Mr McKay and Ms Vivian. Mr McKay is the managing director and principal shareholder of IDC. Ms Vivian is the marketing director and also a director of IDC. Mr Bailey's evidence was that he personally did not communicate to Mr Manikantan before May 1996 that he would be allocated a fibre optics workshop. He had, however, raised the question of fibre optics with Mr Manikantan before then.
Mr Manikantan said that he had never presented a fibre optics course in his life. He said that fibre optics could be ancillary to what he knew because the basic principles of communication are the same. It was, however, new technology and he had no industry experience in fibre optics at all. Mr Manikantan said that in late June or early July when he saw the schedule he told Mr Bailey that he needed training in the practical aspects of fibre optics. Mr Manikantan said that he was keen to learn. According to Mr Manikantan, Mr Bailey said "Don't worry, I'll train you". Mr Bailey went overseas shortly afterwards and he and Mr Manikantan did not see each other until the later part of October.
Mr Manikantan's evidence in relation to the fibre optics course was that it was meant to be a practical fibre options workshop. He himself had never installed a fibre optics system and he was not confident doing what the manual said the workshop was for. According to Mr Manikantan, the target audiences were people already working in the field of fibre optics. Mr Manikantan said that he was comfortable with the theory of fibre optics but did not have the practical skills to do the practical exercises which formed part of the workshop. Mr Manikantan said that he could learn to do those practical exercises but it would take some time. He was confident that he could learn fast but needed training. Mr Manikantan had anticipated that he would be trained in conducting a fibre optics workshop and then take them over in stages after observing somebody else conducting the workshop, as had been the case with the data communications workshops he had conducted when he started with IDC. He said that all of the instructors were trained in that manner. Mr Manikantan said that he thought he would do part of the workshop with somebody else for five or six workshops. Mr Manikantan said that he was not confident conducting a fibre optics workshop by himself as he might make a mistake and it would reflect badly on the whole organisation. Mr Bailey's evidence was that the fibre optics course was one of IDC's easiest courses to teach. His evidence was that IDC requires people who are good lecturers rather than "a genius".
Mr McKay gave evidence that IDC relied on people they employed to be flexible. He said that they were looking for people who showed initiative and could give the courses themselves and had the ability to research a course themselves. Mr McKay said that they do not ask people to do a course in which they have no expertise; for example, they would not ask a communications expert to give a course on automation. Mr McKay and Mr Bailey were both of the view that Mr Manikantan's qualifications were such that he should easily be able to conduct a fibre optics workshop with only a small amount of training. They both played down the importance of the practical skills necessary to conduct the workshop. Mr McKay's evidence was that the manual itself runs the course and that it was almost incidental to have an engineer run the workshop. He said that if the manual is designed properly, then the engineer does not have to answer questions.
The IDC manual entitled "Practical Fibre Optics for Industry" which was the manual presented to course participants, was tendered as an exhibit at the hearing of this matter. In its introductory pages, it states that the immediate benefits of attending IDC workshops are to "gain practical hands-on experience", "obtain state of the art knowledge for your company", and "learn new approaches to trouble shooting". It goes on to state:-
"IDC has structured a number of workshops to cover the major areas of technology. These courses are presented by instructors who are experts in their fields, and have been attended by thousands of engineers, technicians and scientists world wide . . . the IDC team of professional engineers is constantly reviewing the courses and talking to industry leaders in these fields, thus keeping the workshops topical and up to date."
Further on in its introductory pages it states:-
"The IDC engineers have developed the workshops based on the practical consulting expertise that has been built up over the years in various specialist areas. . . . The IDC instructors place particular emphasis on the practical hands-on aspect of the workshops presented."
Mr McKay's evidence was that the target audience was the medium-level person with no knowledge in the area. He said that 60% of the people who attend their courses were technicians and 20 to 30% were engineers. Mr McKay said that IDC's target audience was for the bottom end of experience. IDC's advertising brochure for the practical fibre optics course, however, states that it is:
"a practical hands-on workshop designed for instrumentation and control engineers and technicians; electrical engineers; project engineers; telecommunications engineers and technicians; process control engineers; consulting engineers; electricians; maintenance engineers and technicians; systems engineers and project managers".
The people who attended the two-day workshop paid a fee of just under $900 each. The workshop consisted of some lecturing in theory plus seven practical tasks which each participant was invited to do. Mr Manikantan's evidence was that he was certainly not an expert in fibre optics as suggested by the literature and he felt that it would be a breach of his professional duty to hold himself out as an expert in the field.
The Court heard evidence from Mr Kenneth Prosser who is a lecturer with the Department of Training and who has been conducting courses in fibre optics for some considerable time. Mr Prosser had examined the IDC manual on fibre optics and concluded that the IDC course was very similar to the course he himself had been delivering for about ten years. Mr Prosser said that the main outcome of these courses is a knowledge of practical hands-on techniques. Mr Prosser's evidence was that a normally-qualified engineer would not be an expert in fibre optics as there was a need to demonstrate how to do each exercise and to help the students do the exercise. He said that students invariably make mistakes and without experience the person conducting the course could not tell them what they did wrong. Mr Prosser said that after a two-day course, an engineer could put a connector together but could not teach others how to do that. Mr Prosser was very clear in his view that a person who is a qualified engineer with two-days' training in fibre optics could not satisfy the needs of the course as presented in the manual. Mr Prosser said that the people who attend such courses do it for a particular reason such as wanting advice on specific questions such as the type of equipment they should purchase and who to purchase it from. It was Mr Prosser's evidence that it would take at least three to four weeks for a qualified engineer to be trained sufficiently well to present such a course. His own view was that training should last for several months.
Mr Manikantan's evidence was that he was away from IDC's Perth office because he travelled extensively in the months of August, September and October. He came back to Australia on 19 October. He inquired at the Qantas counter in Sydney about his next round of flight bookings. The Qantas counter had no bookings for him at all and nobody at IDC had communicated with him about the fibre optics workshops by that stage. Mr Manikantan arrived back in Perth on Saturday 19 October. He says that he assumed that somebody else from IDC would be doing the fibre optics workshops for which he had been rostered at the end of October, as the roster said he was to give the workshop in Darwin from 28 October. 21 and 22 October were Mr Manikantan's rostered days off. He went into the office on Tuesday 22 October, however, to see if there had been any change in the roster. He found he was rostered to do a fibre optics workshop on 28 October. Mr Manikantan said that when he went into the office on 22 October he was called to Mr McKay's office. They chatted for a half hour or so. Mr Manikantan's evidence was that Mr McKay seemed upset about a memorandum signed by the engineers employed by IDC, including Mr Manikantan. The memorandum listed a few steps the engineers felt would improve communications with Mr McKay. Mr McKay mentioned to Mr Manikantan on that day that they would have a performance review for Mr Manikantan on 23 October. The performance review was long overdue.
Mr Manikantan said that he went into the office on Wednesday 23 October. Mr McKay put some transparencies for the fibre optics workshop on Mr Manikantan's desk. Mr Manikantan said that they did not have the performance appraisal on Wednesday 23 October as Mr McKay was busy and told Mr Manikantan that it would take place the next day. Mr Manikantan said that he had had no training in fibre optics by Thursday 24 October. He went through the manual by himself and on Thursday 24 October he went into work and spoke to David Bailey who had just returned from overseas. According to Mr Manikantan, Mr Bailey asked Mr Manikantan, "What's your next round of workshops?" and Mr Manikantan replied, "That depends on you. I've been put down for fibre optics but nothing has been done yet." Mr Manikantan said that Mr Bailey then brought his materials on fibre optics in to him and started to train him at about 9 or 9:30 a.m. on Thursday 24 October. Mr Manikantan said that he practiced for the whole afternoon in relation to the first of the practical exercises.
Mr Manikantan's evidence was that the performance review was once again postponed to Friday 25 October. Mr McKay and Mr Bailey were present at the review. It started off in a friendly tone. They discussed some problems Mr Manikantan had had right at the beginning of his employment but referred to excellent feedback that IDC had been getting in relation to Mr Manikantan's workshops. Although both Mr Bailey and Mr McKay referred to as what they saw as Mr Manikantan not putting in enough hours at work, Mr Manikantan's evidence was that at times he put in 90 hours per week. This included travelling time. Mr Bailey in his evidence seemed to suggest that travelling time should not count as work time. At the performance review, Mr Manikantan raised the question of a salary increase. That was refused. Mr Manikantan's evidence was that he was disappointed by this but not angry. He suggested that he be given some alternate duties but this was also refused.
Mr McKay's evidence was that Mr Manikantan became very upset and started shouting during the performance review. Mr McKay's evidence was that after Mr Manikantan's outburst, Mr Manikantan said that if IDC did not fix his pay problem, then he would not do the fibre optics course as they were "ripping him off". Mr Bailey's evidence in relation to the performance review was somewhat different from that of Mr McKay. Mr Bailey was, however, of the view that Mr Manikantan was only interested in money. Mr Bailey said that they discussed the fibre optics course. Mr Manikantan indicated that he wanted somebody else to go to Brisbane with him to do the fibre optics course on the following Wednesday. Mr McKay wrote various scenarios on a whiteboard, including one option that somebody would go with Mr Manikantan to Brisbane but it was decided that that would be too costly. According to Mr Bailey, the question was left unresolved. Both Mr Bailey and Mr McKay were adamant that the performance review took place on the Thursday, not the Friday. A time sheet completed by Mr Manikantan at the time, however, supported his evidence that the performance review took place on the Friday.
Mr Bailey gave evidence that he volunteered to come in on the weekend to train Mr Manikantan in fibre optics but Mr Manikantan refused to consider that. Mr Manikantan's evidence was that his car had been stolen and he had private business to attend to on the weekend. He had been away for a considerable period of time and could not spend the weekend working. Mr Bailey's view was that if Mr Manikantan refused his offer of training over the weekend, he could only assume that Mr Manikantan felt happy in his ability to conduct the fibre optics workshop himself.
On the following Monday, Mr Bailey and Mr McKay were to conduct a fibre optics workshop at a hotel in Perth. Both Mr Bailey and Mr McKay said that when they arrived at work on Monday, 28 October, Mr Manikantan looked surprised when they told him to come along with them to the workshop.
Mr Manikantan's evidence was that his attitude to the fibre optics workshop was that he could not do it alone. He said it was only on Monday 28 October that he realised that the first workshop to be held that day was to be held in Perth, not Darwin. He assumed that somebody else was doing the workshop because he had not been trained. He had only practised the first of the seven or eight practicals. He worked 48 hours during the week preceding Monday 28 October
and he was unable to put in any more hours to do the training. This was after a long tour. Mr Manikantan said that it was not communicated to him that he had to attend at the workshop on Monday 28 October. Mr Manikantan went to the hotel and attended the fibre optics course on the Monday and Tuesday, 28 and 29 October. Mr Bailey said that he and Mr McKay pulled Mr Manikantan aside at the hotel on the Monday and asked him if he would do the fibre optics workshops and Mr Manikantan said no. According to Mr Bailey, they said to him "What do we have to do to get you to do it" and Mr Manikantan said, "I'm never going to do the workshops". Mr McKay's recollection was that Mr Manikantan did not categorically say no to doing the workshops. Mr Manikantan's evidence was that he did not recall saying anything like that on the Monday. He said that on the Tuesday, he told Mr McKay and Mr Bailey that it might be better for him not to do the fibre optics workshop at all in these circumstances. He said that if they could not send two people then it would be better for David Bailey to do it. On the Tuesday there was a heated discussion and tempers were high. Mr Manikantan said that he could not do the workshop alone. Mr McKay and Mr Bailey attempted to hand Mr Manikantan a letter on the Tuesday. That letter directed Mr Manikantan to do the fibre optics workshop or else he would be dismissed.
On Wednesday, 30 October, Mr Manikantan went to the office as usual and started working on a problem. Mr Manikantan was then handed a letter of termination. Mr Manikantan said that Mr Bailey and Mr McKay explained that it was for financial reasons that he needed to do the workshop alone. To Mr Manikantan it was not a good enough reason for doing a bad workshop. He said that if the workshop gets a bad name, it would be a loss to the company. He said that he always wanted to do a progressive takeover to get the feel of fibre optics and do a better workshop. He said that he could never predict all questions which might arise. His position was that he could not do the fibre optics workshop alone by Wednesday, 30 October. He said that it would have been a breach of his professional duty to do so. Both Mr Bailey and Mr McKay said that Mr Manikantan refused to cooperate and to put in the extra hours needed to do the training. They said that they expected him to train after hours if that was needed. He should have worked late and on the weekend to get himself ready to take over the fibre optics workshop. Mr Bailey was not in a position to do the fibre optics workshop as he had been away overseas for months and was exhausted. Mr Bailey was the only person who could conduct the fibre optics workshop at IDC.
Mr Manikantan's evidence that IDC's lecturers were always trained in stages to take over a new course was different from the evidence of Mr Bailey and Mr McKay. Mr Bailey said that IDC advertises for a "certain skills set" depending on the workshops it runs. Mr Bailey said that when they take on new employees, those new employees are made well aware of the workshops they will be doing and they agree to do them before they take the job. Training varies depending on the skills of the employee. The most important skill is how much lecturing they have previously done. It was preferable that they do two courses when they start. Mr McKay's evidence was that when taking over a new workshop, the employee attends one or two workshops and then does it himself. The idea of an employee attending a workshop is to get familiar with the format and maybe find out something he does not know. He then goes and does the research to become proficient. Mr McKay's evidence was that some engineers can do a workshop with no preparation at all.
THE CREDIBILITY OF THE WITNESSES
There were some conflicts between the evidence of Mr Manikantan on the one hand and that of Mr McKay and Mr Bailey on the other hand. Further, there were conflicts of evidence between Mr Bailey and Mr McKay. Mr McKay's evidence was internally inconsistent in some respects. For example, Mr McKay said that on Tuesday 29 October, he was taken aback because Mr Manikantan had never previously indicated to him that he would not take the fibre optics course and he had never expected that there would be question of him not doing it. Mr McKay said that he was shocked when Mr Manikantan indicated that he would not do the fibre optics course. However, earlier on in his evidence in relation to the performance review, Mr McKay said that on the previous Thursday Mr Manikantan said that if IDC did not fix his pay problem, he would not do the fibre optics course. Further, Mr McKay admitted during cross examination that there was a lot of discussion regarding the problems of the fibre optics course at the performance appraisal and that he wrote out various options on a white board.
To the extent that there is a conflict of evidence, I prefer the evidence of Mr Manikantan. I have arrived at this conclusion by balancing considerations of the demeanour of the witnesses and also inconsistencies in the respondent's evidence. I find as a matter of fact that Mr Manikantan was at all times prepared to conduct a fibre optics workshop provided he was given sufficient training. The only person at IDC who could provide him with training was Mr Bailey. Mr Bailey did not return to IDC's Perth office until Wednesday, 23 October 1996. Further, I accept the evidence of Mr Prosser that it would have taken much more than a few days to train Mr Manikantan sufficiently to enable him to deal with the practical aspects of the fibre optics workshop. Although Mr Manikantan's view was that he could train sufficiently after attending several workshops, this may well be incorrect. Mr Prosser was an independent witness who had many years' experience conducting training courses in fibre optics and I accept his evidence in this regard.
WAS THERE A BREACH OF THE PROVISIONS OF THE ACT?
On behalf of Mr Manikantan it was submitted that the respondent has failed in its burden of proving that there was a valid reason for the termination of Mr Manikantan's employment. Mr Castiglione on behalf of Mr Manikantan referred to the case of Nettlefold v Kym Smoker Pty Ltd, unreported, IRCA 469/96, Lee J, 4 October 1996, in which His Honour stated at pages 6 - 7:-
"By giving effect to the convention the Act seeks to establish a balance between the right of an employer to duly manage an enterprise in which labour is employed and the right of an employee, and of the community, not to have the asset represented by the capacity of employees who provide such labour, whether skilled or unskilled, depreciated by incompetent or capricious management of labour by an employer".
In his decision, Lee J referred to the decision of Lord Denning in Woods v W.M. Carr Services (Peterborough) Ltd [1982] ICR 693 that it is an implied term of an employment contract that an employer be "good and considerate" to its employees. Both counsel agreed that the balance of the authorities on the common law position on what would justify "summary dismissal" for a refusal to obey a direction is that the direction given by the employer to the employee must have been both lawful and reasonable in all the circumstances.
The argument on behalf of the applicant was that the direction to take the fibre optics workshop on Wednesday 30 October 1996 was neither reasonable nor lawful in all the circumstances. At to the lawfulness of the direction, it was argued firstly that it was beyond the scope of the contract of employment to give this direction to Mr Manikantan. Secondly, it was argued that this conduct would in all probability have resulted in a civil wrong and would have breached section 52 of the Trade Practices Act and possibly breached a contract of IDC and its attendees on the grounds of misrepresentation. In support of these submissions, it was said that with proper training Mr Manikantan would have been keen to present the fibre optics course. The question was whether he could be asked to do it without training. It was submitted that there was a failure to communicate within IDC and that Mr Manikantan was never provided with anything near the training he required as a professional, which IDC said it would give and which the attendees were represented they would get. It was pointed out that it was not contested that Mr Bailey was the only person at IDC who could provide the training and that Mr Bailey was away from June or July until 23 October 1996. During this period, no training was provided to Mr Manikantan and Mr Bailey had no contact with the applicant. It was submitted that this situation was the product of poor planning on behalf of IDC. It was said that it was an implied term of the contract that Mr Manikantan would receive adequate training to conduct the fibre optics course. It was further submitted that as the contract was silent on the question, it was a term implied by fact that the respondent would not require the applicant to present a course in which he had no expertise or, alternatively, it was a term implied by fact that if the employer did require the applicant to present a course in which he had no expertise, it would properly train him.
Further, Mr Castiglione pointed to the representations IDC made in its literature to its attendees. Those representations included statements that the people running the course were experts in their field and that attendees would be given practical hands-on skills. It was submitted that to require Mr Manikantan to conduct the workshops in all the circumstances would have misrepresented his expertise to attendees and could amount to misleading or deceptive conduct within the meaning of those words in section 52 of the Trade Practices Act or misrepresentation on the part of IDC to the attendees who paid substantial amounts of money to attend the course.
It was submitted that because of the implied terms of the employment contract and because of the misleading or deceptive conduct or the misrepresentations, it would be unlawful to require Mr Manikantan to conduct the course in all the circumstances.
Further, it was submitted that in any event, it was unreasonable in all the circumstances to require Mr Manikantan to present the course without adequate training. It was submitted that the absence of the training made it impossible for Mr Manikantan to give the course.
On behalf of the respondent it was submitted that Mr Manikantan was summarily dismissed for failing to comply with a lawful and reasonable request, that is, to conduct a series of workshops in Brisbane from 30 October. It was submitted that if Mr Manikantan's refusal to do that was not sufficient for summary dismissal, then it would still be a valid reason within the meaning of section 170DE(1). It was said that it was an express term of the contract that Mr Manikantan conduct additional workshops in the future, and that it was not necessary to imply a term that the performance of future workshops would be by negotiation and agreement. It was said that this was a case in which the employer could exercise its managerial prerogative provided it fell within the skills Mr Manikantan possessed. If not, there had been negotiation and agreement on the Thursday and Friday immediately preceding the termination date. It was submitted that as far as the employer was concerned, Mr Manikantan was going to do it. Mr Lyons on behalf of IDC referred to the case of Australian Telecommunications Commission v Hart [1982] 65 FLR 41. It was said that this case was authority for the proposition that the question was whether it was reasonable to require him in all of the circumstances to do the workshop. It was said that Mr Manikantan knew from June 1996 that he was allocated the fibre optics workshop because his employer thought he was capable of doing it. Mr Manikantan's evidence was that he was comfortable with the theoretical aspects of the workshop but it was the practicals which caused him difficulty. It was submitted that the respondent was a small company of professionals who were required to exercise autonomy and initiative. It was not a "9-to-5" job and there was a recognised need to work outside normal hours. In the respondent's view, there was adequate opportunity to get training over a period of a week. Mr Manikantan's evidence was that all he needed was one or two more workshops before he felt he would be comfortable with doing it. It was said that there was much criticism leveled at the respondent regarding misrepresentations in the brochures and the use of the term "expert". It was said that "expert" is a subjective term and that Mr Prosser agreed that some people are more expert than others. It was said that Mr Manikantan's only concern was in not being able to answer the questions in the practicals. It was submitted that the emphasis from the employer's point of view was on an ability to present a workshop and that an engineer was almost incidental to it. The Court was invited to look at Mr Manikantan's conduct in that he had almost five months' notice that he was allocated the workshops. Mr Manikantan appeared to have done nothing of his own initiative to acquire the necessary knowledge. It was not accepted that Mr Manikantan had no opportunity while he was overseas to gain the knowledge he might need. The respondent pointed to a curriculum vitae prepared by Mr Manikantan while he was still employed with IDC. In the curriculum vitae, he says that he gives workshops on fibre-based glands. It was submitted that given the nature of Mr Manikantan's employment and the size of the employer, there was an obligation to ensure either that he had the relevant expertise or alternatively to inform his employer so that they knew there was a problem.
In my view, Mr Manikantan did at all relevant time inform his employer that he had a problem with presenting the fibre optics workshop without further training. He told Mr Bailey so several months before the termination of his employment and Mr Bailey agreed to train him. Mr Bailey was away until Wednesday 23 October 1996. That left two or three working days prior to the presentation of the first workshop on Monday 28 October for Mr Bailey to train Mr Manikantan. During that time, Mr Bailey was unavailable some of the time and it appears that about half a day was spent on the performance review. I do not consider it reasonable of the employer to suggest that Mr Manikantan should have spent a lot of time working into the night and over the weekend in order to attempt to get the necessary expertise to run the workshops. He had been away from home for several months and he had personal business he had to attend to. Although it is obviously the case that many professionals are required to work outside "9-to-5" hours, the weight of the evidence was that Mr Manikantan did work outside normal working hours on a regular basis. Further, in view of Mr Prosser's independent evidence, I am of the view that Mr Manikantan could not have been trained adequately in the short period of time allocated to him by his employer. It is my view that this situation arose because of poor communication and poor planning within the respondent company. When looking at all the circumstances of the case, it is all necessary to take into account the representations made to attendees of the course. Each person attending the course paid almost $900 to do so. It was represented to them that the person running the course would be an expert in the field. Despite the contentions of Mr McKay and Mr Bailey in this regard, it is my view that Mr Manikantan could not be considered to be anything like an expert in the field of fibre optics as at 29 October 1996. It appears clear that he has the potential to become an expert but he would require, on Mr Prosser's evidence, significant amounts of training to do so. In these circumstances, I do not consider it necessary to decide whether the direction given to Mr Manikantan was lawful. I have some doubts about whether there would be a sufficient link between Mr Manikantan running the fibre optics workshop and the representations made to the attendees for Mr Manikantan's actions to become unlawful. However, I am satisfied that the direction was unreasonable and therefore I consider that the termination of Mr Manikantan's employment was not for a valid reason within the meaning of the words in section 170DE(1). Further, I do not consider that Mr Manikantan was guilty of serious misconduct within the meaning of those words in section 170DB(1). In these circumstances, IDC has breached the provisions of both sections 170DB and 170DE(1) and Mr Manikantan must succeed in his application.
THE APPROPRIATE REMEDY
It was considered by Mr Manikantan that reinstatement would be impracticable. In these circumstances, payment of compensation is the appropriate remedy. Further, as Mr Manikantan was aged under 45 years and had been employed for more than one year but not more than three years, he was entitled to payment of at least two weeks' wages in lieu of notice. In the 1995 to 1996 financial year, Mr Manikantan earned $48,000 or an average of $923.30 per week. Mr Manikantan should have been paid $1,846.60 in lieu of notice. His only earnings since termination have been in the amount of $1,230. He has made several hundred applications for work since the termination of his employment and I am satisfied that he has tried to mitigate his loss. On behalf of the respondent it was submitted that this Court should take into account the fact that Mr Manikantan was looking for alternative work at the time of his termination. It was submitted that compensation should be calculated on the base rate of $40,000 and should not include any additional amounts for workshop allowances. I do not agree with that submission. Section 170EE(3) states that in working out the amount of the compensation, the Court 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". The use of the term "remuneration" in section 170EE is to be contrasted with the use of the word "wages" in section 170CD. Because different terms are used in these two sections, I am satisfied that the term "remuneration" encompasses workshop allowances as well as Mr Manikantan's base wages. The appropriate remuneration level to consider is $48,000. In all the circumstances of the case I consider it appropriate to make an order requiring IDC to pay to Mr Manikantan compensation in the amount of three months' remuneration, or $12,000.
The Court orders and declares that:
The respondent has breached the provisions of section 170DB and section 170DE(1) of the Workplace Relations Act 1996.
The respondent pay to the applicant the sum of $1,846.60 by way of payment in lieu of notice, within 21 days of the date of this order.
The respondent pay to the applicant the sum of $12,000 compensation, within 21 days of the date of this order.
I certify that this and the preceding twenty-one (21) pages
are a true copy of the reasons for decision of
Judicial Registrar Boon.
Associate:
Date: 21 April 1997
APPEARANCES
Counsel for the Applicant: Mr R Castiglione
Solicitors for the Applicant: Dwyer Durack
Counsel for the Respondent: Mr T.B. Lyons
Solicitors for the Respondent: Athol C. Gibson & Associates
Date of hearing: 18 and 19 February 1996
7 March 1996
Date of judgment: 21 April 1997
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