Paul Hanfling v United Construction

[1995] IRCA 402

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - casual employee - whether reinstatement impracticable - compensation

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170EA, 170DC

INDUSTRIAL RELATIONS REGULATIONS reg 30B

PAUL HANFLING -V -UNITED CONSTRUCTION

No.  WI 1573/1995

Judicial Registrar:  L Farrell
Place:  Adelaide
Date:  24 August 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

No. WI 1573 of 19954

B E T W E E N:

PAUL HANFLING

Applicant

AND

UNITED CONSTRUCTION  PTY LTD

Respondent

MINUTES OF ORDER

Judicial Registrar Farrell

Date:  24 August 1995

THE COURT ORDERS THAT:

1. The Respondent pay to the Applicant the sum of $5,000.00 within 21 days of today’s date.

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

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

No. WI 1573 of 1995

B E T W E E N:

PAUL HANLFING

Applicant

AND

UNITED CONSTRUCTION PTY LTD

Respondent

BEFORE:                  JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  24 AUGUST 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act.The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement and/or compensation.

The Applicant was employed by the Respondent from 13 September 1994 to 7 April 1995 as a crane driver at Tubridgee.The Applicant resided in Onslow approximately 30 km south of Tubridgee and travelled to work each day with other workers in a vehicle owned by the Respondent.  He understood that he was replacing a crane drive by the name of Tony Gomes who had left the employment of the Respondent.

The Applicant’s employment came to an  end on 8 April 1995.  The Applicant had expected to be picked up for work that morning.  Eventually he rang Mr Cathcart, his supervisor who advised him that he was no longer needed by the Company because of his attitude.  On the same day a flood occurred which prevented any employees travelling from Onslow to Tubridgee.

The Applicant’s employment was considered by the Respondent to be casual.For the duration of his employment with the Respondent the Applicant usually worked a full day although the actual length of his shift varied sometimes.  He worked continuously except for breaks that he requested, the normal Christmas break and a break following a cyclone.

He gave evidence that he expected the work to continue indefinitely.

Mr Clements, the Works Superintendent for the Respondent gave evidence concerning the Respondent’s contract to provide construction services and subsequently maintenance services at Tubridgee.

It was argued before me that the Applicant was excluded from the operation of the provisions of the Act relating to the Termination of Employment by Regulation 30B. On the evidence before me I am satisfied that the Applicant was a casual employee engaged by the Respondent on a regular and systematic basis for a sequence of periods of employment during a period of at least six months and that but for the decision of the Respondent he would have had, a reasonable expectation of continuing employment by the Respondent.

Section 170DC and Section 170DE

In my view the statement made by Mr Cathcart on 8 April 1995 terminated the Applicant’s employment. The Applicant was not given any opportunity to address the allegation concerning the reasons for the termination of his employment in accordance with Section 170DC. Nor was he accorded procedural fairness in the broader sense in accordance with Section 170DE(2). I therefore find that the termination of the Applicant’s employment was unlawful.

Remedy

The Applicant sought reinstatement or compensation.  I accept the evidence of Mr Clement that:-

-Workers will no longer be mobilised from Onslow but will be mobilised from Karratha, a township approximately 3 1/2 hours north of Tubridgee.

-          There has been a significant reduction in the work at Tubridgee.
-          The rostering of workers has changed considerably.

It is my view that reinstatement is impracticable.

The Applicant was paid an hourly rate of $14.41 together with a site allowance of $2.00 per hour.  He gave evidence that he usually worked 70 hours per week.
Given the evidence of Mr Clement it is my view that the Applicant’s employment with the Respondent would not have continued for more than a further month.I therefore award compensation  to the applicant in the sum of $5,000.00.

I certify that this and the preceding  page are a true copy my reasons for judgment.

DATE OF HEARING:          17 August 1995
FOR THE APPLICANT:        Mr W Tracey
FOR THE RESPONDENT:     Mr Tomlinson