Peter William Presland v Sievwright the White Glove Mover Pty Ltd
[1995] IRCA 434
•23 August 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - SERIOUS MISCONDUCT - EVIDENCE, Lack of - COMPENSATION
Industrial Relations Act 1988, S170DB, S170DC, S170DE, S170EA, S170EDA, S170EE
PETER WILLIAM PRESLAND v SIEVWRIGHT THE WHITE GLOVE MOVER PTY LTD
No. VI-1996/94
Before: Ryan JR
Place: Melbourne
Date: 23 August 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI-1996/94
B E T W E E N: PETER WILLIAM PRESLAND
Applicant
AND:SIEVWRIGHT THE WHITE GLOVE MOVER P/L
Respondent
RYAN JR
MINUTES OF ORDER
23 AUGUST 1995
THE COURT ORDERS THAT:
The respondent pay within 21 days compensation in the sum of $450 being the equivalent of one week of wages for failure to give notice under section 170DB and one day of wages (8 hours) lost on 21 October 1994.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI-1996/94
B E T W E E N: PETER WILLIAM PRESLAND
Applicant
AND: SIEVWRIGHT THE WHITE GLOVE MOVER P/L
Respondent
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 23 AUGUST 1995
JUDGMENT EX TEMPORE
(Revised from Transcript)
HISTORY OF THE APPLICATION
This application has an unusual, and in many ways, an unfortunate history.
The history can best be described by quoting Gray J. in his judgment of 29 May which reviewed orders to dismiss this application and pay costs to the respondent. (VI-1996R)
The proceeding concerns an application under s.170EA of the Act, in which the applicant claims a remedy in respect of the termination of his employment by the respondent.
In accordance with the provisions of the Act, the matter was referred to the Australian Industrial Relations Commission for conciliation. It was returned to the Court prior to 22nd February 1995, with a certificate that the commission was unable to settle the claim. Apparently, there had been two dates fixed for conciliation sessions and the applicant had not appeared at either of them.
There was also a directions hearing fixed for 14th March in this Court, at which the applicant did not appear. He did appear on 21st March 1995 at a directions hearing, at which stage the matter was fixed for trial on 28th April 1995. Because of his presence at the directions hearing on 21st March, the applicant was well aware that the matter had been so fixed.
At the time, the applicant was employed by Austwide Removals as a driver. His duties involved driving vehicles, moving furniture and similar items and at times involved driving such vehicles interstate. On 26th April, the applicant was directed by Austwide Removals to travel to Queensland by air and retrieve a vehicle, which was then in Queensland. He accepted that direction, notwithstanding his knowledge that the application was listed for trial on the Friday.
On 26th April 1995 Austwide Removals, by its Operations Manager, Mr Ted Stacey, sent a facsimile to the Court. The message contained in the facsimile was in the following terms: ‘Please be advised that Mr Peter Presland will not be able to attend case being hear on Friday 28.4.95 @ 10 a.m. as he will be doing an interstate job for our company on that date.’ At that stage, no advice was given to the respondent, or the respondent’s representative, of the inability of the applicant to attend.
On the following afternoon, 27th April, Mr Knowles, the representative for the respondent, had a conversation with the manager of Austwide Removals, who asked whether the case was due to be heard in the near future. Mr Knowles informed the manager that it was. The manager then said that he had sent the applicant to Queensland that morning. The applicant’s own recollection in evidence was that he had flown to Queensland on the morning of 28th April. At all events, it was clear to Mr Knowles on the afternoon of the 27th that there was some doubt whether the matter would proceed.
Mr Knowles and the witnesses for the respondent did attend the Court on the morning of 28th April. After hearing from Mr Knowles, the judicial registrar dismissed the application. An application for costs was made on behalf of the respondent. The judicial registrar adjourned the application for costs to 19th May 1995.
In the meantime, by letter dated 28th April 1995, at the direction of the judicial registrar, the Court communicated with Mr Presland, advising him that the application had been dismissed ‘as you failed to appear’. The letter read in part as follows:
‘The court dismissed your application on the basis of submissions made by Mr Knowles and taking into account the history of this proceeding and the number of times you have failed to appear at Court.
The respondent sought from the Court an order for costs against you. The Court has adjourned the respondent’s costs application to 19th May 1995 at 9.30 am.
Should you fail to appear on this occasion, it is likely that an order for costs will be made against you pursuant to the Industrial Relations Act 1988 which permits the Court to order costs when an application is made vexatiously or without reasonable cause.’
On 19th May, the application for costs was heard. In the result, the judicial registrar ordered the applicant to pay the respondent’s costs, fixed at $1,000, and stayed the order for 21 days.”
Gray J. set aside the orders dismissing the application and awarding costs to the respondent and ordered that in lieu thereof the application be heard by a Judicial Registrar. His reasons appear at pages 4 to 7 of the judgment.
HEARING 23 AUGUST 1995
The application came on for hearing before me today. The applicant appeared in person and gave evidence. The respondent was represented by Mr Knowles of the Victorian Road Transport Association. The respondent is a member of that Association.
THE APPLICANT’S EVIDENCE
The applicant gave evidence that without warning, counselling or advice he was dismissed on Friday 21 October 1994 while on a domestic removal job in Fairfield. He claims that:
on that day he was instructed to go from the respondent’s Cheltenham depot to Fairfield with Lorraine Woods, who was described by the respondent as a domestic supervisor
he was loading the goods and furniture of a client into a furniture van and, when putting down or lifting a box exclaimed “shit”, an expression he says of surprise or concern because of the weight of the box
Ms Woods allegedly responded that she was sick of the applicant’s swearing and according to the applicant appeared to have a conversation by telephone. It seems clear from the evidence of Ms Anne McMillan, the respondent’s operations manager, that the conversation was with her.
The applicant then claims that:
Woods returned from the phone conversation and told the applicant, “you are out of the job. I have had enough of you swearing”
he said to Woods words to the effect, “what am I supposed to do?”
Woods allegedly said, “you can probably go back to the yard”
the applicant said, “how do I get there?” and he was told to leave the site, walked to the Fairfield Railway Station and rang Ms McMillan
he said to Ms McMillan, “what do you want me to do? I have been kicked off the job”
Ms McMillan said to him, “I don’t want you to do any more today. I have spoken to Michelle Sievwright, (i.e. McMillan’s supervisor) and your services are to be terminated
he, the applicant, went that day to the Commonwealth Employment Services Office in Cheltenham and obtained forms but began other work on the Monday, i.e. on 24 October 1994
about ten days later he received a cheque for $500.40. The cheque is Exhibit A2 and is dated 31 October 1994
no Notice of Termination was ever given or any details of the termination payment or, any Separation Certificate.
THE RESPONDENT’S CLAIM OF SERIOUS MISCONDUCT
Mr Knowles indicated that he had instructions that the cheque was posted to the applicant together with a Separation Certificate. No evidence was produced of such a certificate. Mr Knowles conceded that:
the cheque of $500.40 (Exhibit A2) was from the respondent and represented payment for the Wednesday, Thursday and Friday, 19, 20 and 21 October and for 39 hours of leave entitlements
no Notice of Termination was given
no payment was made in lieu of notice
Mr Knowles claimed that the applicant was terminated for serious misconduct and that the circumstances were such that the employer could not reasonably be expected to give the employee the opportunity to defend himself against the allegations. Mr Knowles did not put it in those terms but that was essentially the position taken by the respondent.
LACK OF DIRECT EVIDENCE OF MISCONDUCT
Of course, serious misconduct can constitute a valid reason for termination and for immediate summary termination (see S.170DC(b)) of the Industrial Relations Act 1988). Unfortunately the respondent decided, because of questions of costs and convenience and quite possibly because of practical difficulties in witness location, to call no other witness other than Ms McMillan. Ms Sievwright was not called and yet McMillan indicated she really made the decision to terminate the applicant. More particularly, Ms Woods was not called. There may be all kinds of practical difficulties but nevertheless Ms Woods was not called and the respondent was simply unable to give evidence which might well have constituted evidence of serious misconduct and could have constituted an entirely valid reason for summary termination.
Ms McMillan substantially confirmed the substance of the telephone conversation of which the applicant gave evidence and which he states was made from Fairfield Railway Station on 21 October. The rest of Ms McMillan’s evidence was to the effect that she reported her earlier telephone conversation on 21 October with Ms Woods to Ms Sievwright and that the latter determined that the applicant should be terminated and directed Ms McMillan to implement that decision.
I adjourned the proceedings briefly to allow Mr Knowles to get instructions. I told him that if he wanted an adjournment to call other evidence I would almost certainly grant such an adjournment, although of course I would have had to hear from the applicant before determining such an application. However, Mr Knowles repeated that the respondent proposed to proceed without calling any direct evidence of the alleged serious misconduct. This was the respondent’s choice.
FINDINGS
I will say immediately that I find it quite unlikely that the applicant was terminated because he used one solitary swear word. There are clear suggestions in the evidence of the sole witness for the respondent and in cross-examination of the applicant that the applicant behaved in an inappropriate manner at Fairfield on the 21 October both to Ms Woods and, quite possibly to the respondent’s client who had retained the respondent to move furniture.
However, the Court cannot find or establish serious misconduct on the basis of inferences and in the absence of evidence.
The respondent has the responsibility of establishing a valid reason for termination (see S.170EDA). The respondent has been unable to discharge this responsibility.
In the absence of evidence to the contrary I find that the termination was without valid reason. There almost certainly was a reason associated with the applicant’s conduct which might have justified summary termination I put it no higher than that.
I have no alternative but to find that the termination breached S.170DE(1), i.e. it was a termination without valid reason or at least a termination for which no valid reason has been provided by way of acceptable evidence.
REMEDY
The applicant does not seek reinstatement. I have no doubt in any event that reinstatement would be impracticable. The applicant immediately obtained other employment on a substantial casual basis. He also obtains income through his own company and that is the applicant’s own evidence.
I am not satisfied he sustained any loss as a result of the termination other than possibly wages on Friday 21 October.
However, I order the payment of one week’s wage, that is 40 hours wages because of the termination of the applicant without notice and because that termination constituted a breach of S.170DB.
Initially I declined to order any compensation under section 170EE but the respondent was unable to provide the Court with the exact details of the applicant’s wages and could not satisfy the Court that the payment of $500.40 on 31 October included a payment for Friday 21 October.
Mr Knowles estimated one week’s wages as about $370.00 i.e. $74.00 a day. If this is correct the payment of $500.40, if including 39 hours leave, clearly did not include a payment (for say 8 hours) on 21 October. I estimate 6 days wages (5 days or 1 week in lieu of notice and one day for Friday 21 October) at $440.00 and I order that the respondent pay the applicant $450.00 and that the payment be made within 21 days.
ORDER:
The respondent pay within 21 days compensation in the sum of $450 being the equivalent of one week of wages for failure to give notice under section 170DB and one day of wages (8 hours) lost on 21 October 1994.
I certify that this and the preceding page(s) are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 29 August 1995
Appearances:
Mr Peter Presland, applicant, appeared for himself.
Mr P Knowles of the Victorian Road Transport Association Inc, appeared for the respondent.
Date of Hearing : 23 August 1995
Judgment : 23 August 1995
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