Paterson v State of South Australia
[1996] IRCA 381
•13 August 1996
DECISION NO: 381/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether the employer had a valid reason for the termination of the Applicant’s employment - redundancy - employee paid as casual..
INDUSTRIAL RELATIONS ACT 1988, s.170DE, 170EE
South Australian Termination, Change and Redundancy Case, 1986 54 SAIR 258.
PATERSON V STATE OF SOUTH AUSTRALIA
No.SA95/1733
JUDICIAL REGISTRAR : LJ FARRELL
PLACE : ADELAIDE
DATE : 13 AUGUST 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No.SA95/1733
B E T W E E N
BARRY WILLIAM PATERSON
Applicant
AND
STATE OF SOUTH AUSTRALIA
Respondent
MINUTES OF ORDER
BEFORE : JUDICIAL REGISTRAR LJ FARRELL
PLACE : ADELAIDE
DATE : 13 AUGUST 1996
THE COURT ORDERS THAT:
The Respondent pay to the Applicant the sum of $4,000. pursuant to Section 170EE
The Respondent pay to the Applicant the sum of $4725 pursuant to Section 170DB
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 )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No.SA95/1733
B E T W E E N
BARRY WILLIAM PATERSON
Applicant
AND
STATE OF SOUTH AUSTRALIA
Respondent
BEFORE : JUDICIAL REGISTRAR LJ FARRELL
PLACE : ADELAIDE
DATE : 13 AUGUST 1996
REASONS FOR JUDGMENT
This is an application pursuant to S170EA of the Industrial Relations Act. It follows on from my decision of 19 July 1996 in which I determined that the Applicant was an employee of the Respondent for the purposes of Part V1A, Division 3 of the Act.
On 3 November 1995 when the Applicant attended work as usual, he was advised to attend a meeting with the 3 other owner-drivers in his gang. The four men were told by Mr Vogelsang that they were being stood down that afternoon. Mr Vogelsang advised the men that there would be some work in approximately 2 weeks time, as well, he hoped more work would become available in the future.
Mr Vogelsang telephoned the Applicant on at least 2 days to offer him work however, there was no answer. I do not think anything turns on that fact.
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In my view the conversation on 3 November 1995 brought to an end the long-standing relationship between the Applicant and the Respondent. There can be no other construction placed on the words of Mr Vogelsang than that of a termination of employment at the initiative of the employer.
I am satisfied on the evidence before me of Mr Vogelsang and Mr Argent that the Respondent had a valid reason for terminating the Applicant’s employment because of it’s operational requirements. There was evidence before me that the Respondent was reducing the size of it’s workforce, that using single axle trucks was not cost effective and all single axle truck drivers engaged on the Applicant’s gang were dismissed at the same time.
Counsel for the Applicant argued that the termination of the Applicant’s employment was unlawful because the Respondent failed to pay any severance payment. In my view that argument must fail. In my view the only construction that can be placed upon the arrangement between the Applicant and the Respondent is that he was an employee paid as a casual bearing in mind the following factors.
It is obvious that he was engaged on a different basis to that of the weekly hired employees of the Respondent.
He was regarded by the Department and by himself as an independent contractor.
He was only paid when he worked.
He could be sent home in wet weather and only be paid for 2 hours work.
The rate he was paid of $23.84 in addition to mileage of 56 cents per kilometre was more than double the rate paid to the weekly hire labourers.
It seems to me that there was an intention on the part of both parties that the Applicant was to be responsible for annual leave, sick leave and severance payments from the hourly rate that he was paid. It has been recognised in the South Australian Termination Charge and Redundancy Case, 1986 54 SAIR 258 that persons paid as casuals are not entitled to receive notice or payment in lieu of severance payments in the event of their being made redundant.
In my view the Applicant is not excluded from the entitlement to notice pursuant to Section 170DB. In my view the use of the word “casual” in Regulation 30BC does not
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apply to persons such as the applicant who are paid as casual although the nature of the relationship between the employer and the employee is not in fact casual. The Applicant is entitled to five weeks notice pursuant to Section 170DB. That Section provides at sub paragraph (5) for the calculation of the amount based on the Applicant’s ordinary hours of work, including allowances, loading and penalties. On my calculation the Applicant is entitled to the sum of $4,725 by way of payment in lieu of notice.
On the evidence before me I am satisfied that the Applicant was made aware of the situation in the Department regarding the reduction in the size of its workforce. However he received no specific advice regarding his position until the day he was dismissed. The Respondent did not consult with the Applicant about his situation prior to the termination of his employment. Beyond advising the Applicant of the future availability of what can be described as “odd jobs” , no attempt was made by the Respondent to lessen the impact on the Applicant I therefore find that the termination of the Applicant’s employment was unlawful.
As I have determined on this narrow ground that the Applicant’s employment has been terminated unlawfully, it is my view that the Applicant can only be compensated for the lost opportunity to prepare himself for his employment being terminated. The Applicant has been able to find some alternative work and although he is aged 57 he has the advantage of having a son involved in the earthmoving business. I therefore award compensation to the Applicant in the sum of $4,000.
I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment.
DATES OF HEARING : 29 & 30 JULY 1996
FOR THE APPLICANT : MS M KAUKAS
FOR THE RESPONDENT : MR J HANKIN
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