Neville John Waters v David Evans and Company

[1995] IRCA 302

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT- claim of UNLAWFUL TERMINATION - CONSTRUCTIVE DISMISSAL - whether probation or qualifying period of employment - COMPENSATION

INDUSTRIAL RELATIONS ACT 1988, Ss 170EA, 170DC, 170DE, 170DB
INDUSTRIAL RELATIONS REGULATIONS, Reg 30B(1)(c)

NEVILLE JOHN WATERS v DAVID EVANS & COMPANY - WI 411 of 1994

BEFORE:                 BOULTON JR
PLACE:  PERTH
DATE:  23 MAY 1995

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 411 of 1994

BETWEEN:  NEVILLE JOHN WATERS
  -          Applicant

AND:  DAVID EVANS & COMPANY
  -          Respondent

MINUTE OF ORDERS

BEFORE:                 BOULTON JR

PLACE:  PERTH

DATE:  23 MAY 1995

THE COURT ORDERS THAT:

1. The respondent pay compensation to the applicant in the sum of $2500 within 14 days of the date of this order.

NOTE: Settlement and entry of Orders dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 411 of 1994

BETWEEN:  NEVILLE JOHN WATERS
  -          Applicant

AND:  DAVID EVANS & COMPANY
  -          Respondent

BEFORE:                 BOULTON JR

PLACE:  PERTH

DATE:  23 MAY 1995

REASONS FOR JUDGMENT
(Ex tempore - as revised from transcript)

The applicant, a painter now aged 40, answered an advertisement for a painter placed by the respondent, a painting contractor, in a newspaper dated 11 June 1994.  The applicant then resided in South Australia, and the respondent carried on his business in Bunbury, Western Australia.

That advertisement read as follows:

PAINTER

Must have experience in commercial, industrial and unit developments.

Must be self starter.  Long term employment.  Award wages, to be

re-negotiated after a two month qualifying period.

Thereafter followed the respondent’s name and phone numbers.

I find the facts as follows.  The applicant and the respondent’s principal, Mr Evans, spoke on the telephone several times after the applicant responded to the advertisement.  Mr Evans agreed to keep the position open for the applicant.  There was no discussion about reimbursement of costs to be incurred by the applicant in coming to Western Australia.  The applicant drove to Bunbury and started work with the respondent on 19 August 1994.  He was employed under the terms of a Federal Award, the National Building Trades Award.

Early the next week a difference arose between the applicant and Mr Evans about the way in which the applicant was carrying out his work, painting a group of home units.  This difference was principally about the order in which the job was to proceed.  Mr Evans agreed in evidence that the applicant was a tradesman-like painter.  On Thursday, 25 August 1994, the applicant told Mr Evans on site in effect that in his opinion, the state of construction was such that painting should not proceed.  Thereupon there was a heated discussion between them, with Mr Evans concluding by saying, “If you don’t like the way things are done, pack your tools and leave”.  This, the applicant did, thinking he had no real choice, after receiving a cheque for $500 for work done since his employment commenced.

The only witnesses who gave evidence before me were the applicant and Mr Evans.  The applicant considered he had been sacked, whereas it was contended on behalf of the respondent, that he had quit.  I find that termination of employment at the initiative of the employer did occur, there being, at least, a constructive dismissal of the applicant.

The respondent contended also that the applicant was excluded from the benefit of the relevant provisions of the Act by virtue of paragraph 30B(1)(c) of the Industrial Relations Regulations which states:

Subject to subregulation (2) for the purposes of Section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:

(c)       an employee serving a period of probation or a qualifying period of            employment, if the duration of the period or the maximum duration of    the period, as the case requires:

(i)is determined in advance; and

(ii)       is reasonable, having regard to the nature and circumstances   of the employment.

I consider that the two month qualifying period stated in the advertisement refers only to the period of time after which Award wages might be re-negotiated.  Having heard the parties, and noting that the full content of conversations about the applicant’s employment which Mr Evans gave in evidence was not put to the applicant, I do not consider that the applicant was serving a period of probation or a qualifying period of employment within the meaning of the Regulation.  If the contrary were the case, I would not in any event find the period to be reasonable, having regard to the nature and circumstances of the applicant’s employment, including his experience as a tradesman, and the presence of four men to supervise his work.

Having found that the employment was terminated at the initiative of the employer, it is clear to me that:

(a)procedural fairness was not accorded the applicant in the manner of his termination; and

(b)there was no valid reason, at the time of termination, within the meaning of Section 170DE of the Act for that termination.

Indeed, the respondent’s representative did not urge upon me to the contrary, confining himself to the questions of termination at the initiative of the employer, and the Regulation 30B point.

As for remedy, the applicant sought reinstatement or compensation.  I consider reinstatement to be impracticable.  While there was no overt animosity evident between the parties at trial, Mr Evans was adamant that he did not want the applicant to be reinstated.  I consider that their differences in approach about the manner in which work was to take place would be likely to occur again, creating an unsatisfactory, if not intolerable, work environment.

Since termination, the applicant has had periods of employment, as a painter, between 6 October 1994 and 20 October 1994, and again between 1 November 1994 and 23 December 1994.  He has had further employment in the last fortnight.  The applicant has also received in total about 17 weeks of unemployment benefit.  The Award rate for the applicant at the time of the termination was about $491 gross per week.

I take into account the prospect that the applicant’s employment with the respondent might, in any event, have not been of long duration unless he became better able to accommodate his employer’s method of working after appropriate counselling on that issue.  He was, however, an experienced painter of some 11 years.  I take into account also that his employment with the respondent was of relatively short duration.

I consider that appropriate compensation, including damages for the respondent’s failure to give the applicant either the period of notice or compensation instead of notice required by Section 170DB of the Act, is the sum of $2500.

I certify that this and the preceding four pages are a true copy of the Reasons for Judgment of Judicial Registrar Boulton.

Associate:

Date:

The applicant appeared in person.

Representative for the respondent:         Mr O Moon

Hearing Date:             23 May 1995

Judgment Date:          23 May 1995