Raymond John Forbes v Ori Enterprises Pty Ltd
[1995] IRCA 598
•14 November 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3227 of 1995
B E T W E E N :
RAYMOND JOHN FORBES
Applicant
AND
ORI ENTERPRISES PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 14 November 1995
REASONS FOR JUDGMENT
Between late November 1994 and 1 June 1995 the applicant was employed as a chef and kitchen hand at the respondent’s roast carvery located in the Toorak Village. He alleges that on 1 June 1995 the respondent terminated his employment in contravention of Division 3 Part VIA of the Industrial Relations Act 1988 (the Act).
As a preliminary matter the original respondent, Ted Ori, through his legal representative Mr Macken, made an unopposed application pursuant to Order 6, Rule 11(1)(d) of the Industrial Relations Court Rules to substitute Ori Enterprises Pty Ltd as the employer. Such application was granted and an appearance was filed.
It was alleged by the respondent that the applicant was a casual employee excluded from the operation of Subdivisions B, C, D and E of Division 3 Part VIA of the Act being an employee engaged for a short period within the meaning of subregulation (3) of Regulation 30B of the Industrial Relations Regulations. Regulation 30B(3) provides that:
”For the purposes of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless:
(a) the employee is engaged by a particular employer on a
regular and systematic basis for a sequence of periods
of employment during a period of at least 6 months; and
(b) the employee has, or but for a decision by the employer to
terminate the employee’s employment, would have had,
a reasonable expectation of continuing employment by the
employer.”
As to paragraph (a) of the abovementioned subregulation the respondent conceded that the applicant met the requirements set out. However, it was contended on the facts before the Court that the applicant did not have a reasonable expectation of continuing employment by the respondent. Because it was accepted by both parties that the requirements of Regulation 30B(3) contained in paragraphs (a) and (b) are cumulative (see Andison v Woolworths Limited (unreported, Moore J, 8 August 1995 No. NI 522 of 1994) a finding that there was an absence of a reasonable expectation would remove the jurisdiction of this Court to consider the lawfulness or otherwise of the termination of the applicant’s employment.
If unsuccessful on the jurisdictional point the respondent further argued that it had discharged the onus of proof it carries under S170DE(1) of the Act in that there was on 1 June 1995 a valid reason for termination connected with the applicant’s capacity or conduct. That valid reason was recorded by the respondent as being “for not complying with the work standards and quality that is associated with...” the respondent’s premises (see Exhibit A1). In the final resort the respondent also argued that there was no breach of S170DE(2) in the sense that the termination was not harsh, unjust or unreasonable and the applicant had not discharged the onus on him of showing that there was a failure to give him the opportunity required by S170DC of the Act to defend himself against the allegations relied upon by the respondent as evidencing poor performance on his part.
The Contract of Employment
It was not disputed that the applicant answered the respondent’s newspaper advertisement in November 1994 for a position at the respondent’s gourmet roast carvery.
By way of background the applicant told the Court that in the two years preceding his employment with the respondent he worked as a head chef at a gourmet roast outlet in the Australia On Collins. Because of financial pressures his then employer suggested he look for alternative employment. On these matters the applicant was corroborated by Eric William Dixon (Dixon) who is the proprietor of the abovementioned business. Dixon also described the applicant’s performance during his period of employment as head chef in glowing terms and told the Court that in March 1995 the applicant declined Dixon’s offer of re-employment stating that he “...was committed to work where he was for a period of 12 months and felt an obligation to stay there”. This statement from Dixon was certainly consistent with a belief that the applicant was expecting to remain with the respondent over a substantial period.
The applicant completed only two years of his apprenticeship at the Customs House Hotel in Williamstown. However, during the apprenticeship he spent two 7 week periods at the William Angliss College studying food, hygiene, safety, and other matters related to the sale and preparation of food. The applicant cut short his apprenticeship to pursue his hobby as a professional cyclist.
There was no admissible evidence produced to the Court by the respondent to establish the contents of the advertisement placed in circumstances where the applicant asserted that the newspaper advertisement referred to full-time employment. The respondent denied this but did not at any stage assert that the advertisement, which drew the applicant to its employment, contained any reference to the job being offered on a casual basis.
The applicant alleges that he met with Ted Ori (Ori) a director of the respondent company and sat at a table outside the carvery to discuss the terms of his employment in the latter part of November 1994. After discussing his employment experience the applicant recalled being told by Ori that “there’s two years work here...let’s see how we go for the first 12 months”. The applicant asserted that he was employed on an hourly basis between 7:00 am and 3:00 pm Monday to Friday at the rate of $12 per hour without accruing annual leave or sick leave entitlements. Further, the applicant conceded that for any sick leave and time off during the period of his employment with the respondent he was not paid. He did not receive payslips and, whilst there was some suggestion by the respondent that his hours were variable, I am satisfied that on average the applicant was employed for a 40 hour week. The applicant was paid a net cash sum each week with no indication of how that sum was made up. Superannuation payments were also made by the respondent to a fund.
In cross-examination the applicant also asserted that at his original meeting with Ori he was told that:
(a) the work was full-time;
(b) the wage was negotiable;
(c) there was no trade union;
(d) superannuation would be paid to a fund; and
(e) there was four weeks holiday pay.
There is clearly an inconsistency between the answer given in cross-examination concerning the holiday pay and the applicant’s evidence-in-chief as well as in his response to two earlier questions put to him in cross-examination.
Ori’s evidence concerning the terms of the contract of employment caused me some concern. Initially he spoke broadly and referred to the practice he adopted in employing staff alleging that the respondent employs three casual staff and one permanent employee at the carvery. Ori told the Court that when potential employees came in for an interview it was his habit to speak to them and if they were interested they were to work with him for a day. He also asserted that he told potential employees that the respondent pays “so much per hour” and that includes holiday and sick pay. It is instructive to note that Ori has never dismissed any employee prior to the dismissal of the applicant and professed an ignorance of the legal obligations cast on the respondent by the Act; suggesting that if he had been aware of these obligations the matter would never have come this far. He also made it clear that he was under the impression that he could dismiss a casual employee at any time without warnings or counselling and an opportunity to respond to any allegations of poor performance.
It was never put to the applicant that he had worked for one day in the respondent’s kitchen before being employed. Subsequently, Ori asserted that he told the applicant that “we would have him for one day and the wages were $12 per hour and would include all holiday pay and sick pay”. He denied mentioning the length of the applicant’s employment. Insofar as Regulation 30B(3)(b) is concerned it would be fair to say that the respondent gave no evidence of any conduct or statements on its part which, objectively speaking, would have made unreasonable any expectation of continuing employment with the respondent.
On the evidence given I am satisfied that the contract of employment was one where at the time of entering into the contract of employment the applicant understood that he was being offered employment on a casual basis. In arriving at this conclusion I have taken into account the inconsistency in the applicant’s evidence as to his entitlement to holiday pay, the hourly rate paid to him and his admission that in the period of his employment sick leave and holiday leave taken by him were not the subject of any remuneration by his employer. In his previous job he had received those entitlements as a permanent employee. Whilst Ori denied any representation that there was some two years work available to the applicant he did agree that he may have said that his casual employees worked for the respondent for several years. I infer from this that it is more probable than not that he gave this impression to the applicant during his job interview. Notwithstanding this finding, I am not satisfied that he made any direct representation that there was some two years of full-time employment for the applicant.
Reasonable expectation of continuing employment
As already noted the respondent led no substantive evidence to displace any allegation that the applicant could reasonably expect to have continued in his casual employment with the respondent. The absence of evidence to contradict the applicant’s alleged expectation does nevertheless clear the applicant’s path towards satisfying the Court that he had both an expectation and that it was a reasonable one having already met the requirements of Regulation 30B(3)(a). This does not mean that the respondent carries the burden of proof on this point. Indeed, Ori agreed that if his casual employees worked well they could expect to continue their employment with the respondent.
Neither party grappled with the issue of at what point in time the Court is to determine the reasonableness or otherwise of the employee’s expectation under the regulation. To sensibly interpret the regulation in the context of casual employment it seems to me that the time at which to determine both what the expectation was and the reasonableness of that expectation should be the time when a casual employee meets the requirements of paragraph (a) of the regulation. Once the casual employee meets the threshold requirements of paragraph (a) the employee is entitled to the benefits conferred on casual employees by Subdivisions B, C, D and E of Division 3 of Part VIA of the Act unless the employee fails to satisfy the Court on the facts of the case that the employee at that time had a reasonable expectation of continuing employment.
The respondent in its submissions to the Court referred to and relied on a number of decisions of this Court to establish that the applicant could have no reasonable expectation in the circumstances. It specifically relied on evidence given by a fellow casual employee, Patricia Ann Stooke (Stooke), who has been employed by the respondent as a sandwich hand for nearly four years. Stooke gave evidence that in her discussions with the applicant during his employment and, in particular, in the last month of his employment he expressed dissatisfaction with his job and a desire to leave as quickly as possible. To this end he informed her that he had been looking in the Age newspaper for another job. It was also alleged by Stooke that the applicant had mentioned opening his own business in the near future and had spoken to her about working with him. She did not regard this discussion as containing an imminent offer of employment.
It is the respondent’s contention that the abovementioned matters as well as its allegation that the applicant’s performance was criticised by it on a number of occasions during the last months of his employment are inconsistent with a reasonable expectation of continuing employment.
In Hitchcock v Warner Bros Movie World (unreported, Judicial Registrar Boulton No. QI 190 of 1994) the Judicial Registrar commented at page 5 of his decision that, for the expectation to be reasonable, there must be a reasonable probability of it being borne out. Clearly any facts known to an employee; for example, an employer’s intention to sell the business in the short term should militate against any expectation of continuing employment.
The respondent also relied on the decision of this Court in Stone v Australia Post (unreported, Judicial Registrar Tomlinson No. AI 1002 of 1995) and the observations made in that decision at page 3 when the Judicial Registrar said:
“The Court considered the evidence and found that it lacked jurisdiction to hear the application on the basis that the applicant was a casual employee within the meaning of Regulation 30B of the Act. In considering the submissions of the applicant the Court noted that to have written an article to a newspaper criticising the respondent while the applicant was still employed may well have been misconduct such that it may have had the effect of denying the applicant the benefit of Regulation 30B(3)(b) as the employee would not have had a reasonable expectation of continuing employment by the employer.”
In the abovementioned case the applicant had, on the facts, failed to meet the requirements of Regulation 30B(3)(a). Accordingly, it was not necessary for the Court to consider the second limb of that subregulation.
In considering the effect of Regulation 30B(3) in my view the following matters are important. The first is that once a casual employee exceeds a six month period of regular and systematic employment there must be a prima facie presumption that it would be reasonable to expect continuity of that employment, albeit it on a casual basis, unless there is objective evidence to negative such an expectation.
I am troubled by any submission suggesting that a casual employee can not have a reasonable expectation of continuing employment if the employee is dissatisfied in any way with the job, actively seeks alternative employment, expresses the employee’s dissatisfaction to fellow employees and is allegedly the subject of criticism by the employer on occasion with no explicit warnings other than exhortations to “keep an eye out” for the performance problems complained of. It would create absurd results if each time a casual employee expressed job dissatisfaction and surveyed job opportunities elsewhere the employee’s accrued right to the protection of the Act is taken away. I do not accept that the criticism of one’s employer in itself vitiates either the expectation or its reasonableness. This too could lead to the result that each time a casual employee was critical of the employer; for instance, in relation to a safety matter, the employee would be denied the protection of the Act. It also follows from what I have already observed that I am not satisfied that criticism of a casual employee’s performance from time to time without explicit warnings should be a basis for rendering an expectation of continuing employment unreasonable. Equally, it can be argued, that the employer’s failure to warn the employee acts as a bolster to the employee’s expectation of continuing employment in the absence of any other objective criteria to displace such an expectation.
Accordingly, I am satisfied on the evidence that the applicant had an expectation of continuing employment and objectively speaking there were no matters which rendered such expectation unreasonable.
The termination of the applicant’s employment
It was alleged by the respondent and in some instances conceded by the applicant, that over the period of the applicant’s employment there were a number of incidents where his performance was questioned by the respondent. The respondent further alleged that the incidents were brought to the applicant’s attention and he was variously told to “keep an eye on things ... we can’t go on like this” and “to pull his head together”. No evidence was given of any specific warnings that his job may be in jeopardy and this was confirmed by Stookes’ evidence that, although she overheard exchanges between the applicant and Ori concerning some of the incidents alleged, such exchanges contained no specific warnings that the applicant’s employment was at risk.
The applicant’s duties included the preparation and cooking of roasted meats and patties, and the preparation and cooking of vegetables and rice all of which were for sale to the public. In the first two months or so of his employment Ori worked along side the applicant supervising him and instructing him on the menu and the methods the respondent used for producing its menu in its kitchen over some eight years of operation. Subsequently, Ori, who has other business interests, did not attend the carvery every day during the hours that the applicant worked but attended for at least a few days a week and sometimes attended after the applicant had left for the day at 3.00pm. Apart from the casual sandwich staff there was a shop manager referred to as Rena who also attended to sales of the cooked food items.
There is not a great deal of divergence between the applicant’s description of the termination of his employment and that given by Ori. The applicant told the Court that on his last day he was eating his lunch at approximately 12.30pm when Ori came to him and told him that the respondent “no longer needs your services ... finish your lunch and you can go”. In response to the applicant’s question as to what the applicant had done wrong the applicant alleges that Ori said words to the effect of “I no longer needs your assistance ... please make it easier on me ... I don’t want any trouble”. When the applicant insisted on an explanation he alleges Ori told him “ ... it’s very hard to explain ... the standard of your cooking has dropped”.
As already indicated Ori’s evidence on the abovementioned matters whilst the wording was slightly varied was to the same effect. He told the Court that there were too many issues and he had not wanted to go through them all in the shop and, in any event, he believed they had already been covered on earlier occasions. In his evidence-in-chief Ori made no reference to any further incidents on the date of termination to justify the termination. When asked what he meant in his letter of 1 June 1995 where he stated that the applicant had not complied with the respondent’s work standards and the quality “that is associated with this premises”, Ori reiterated the earlier incidents complained of.
It was the applicant’s evidence that on the date of termination after he pressed Ori to find him a dish with which Ori was not happy Ori “looked around” the kitchen and said indicating some cut pumpkin on the preparation bench “the pumpkin is rotten”. The applicant told the Court that the pumpkin was supplied by Ori from his farm. When it came in it was cut, put in boxes and stored in the cool room and some of the pumpkins brought in were rotten. The applicant’s unchallenged claim was that he was instructed by Ori to salvage the good pumpkin, which he had, however, whilst the pumpkin remained in the cool room during the week some had rotted. The applicant told Ori this and also told him that he had no intention of using the pumpkin in the cooking.
In cross-examination Ori, who was in Court throughout the entire hearing, when challenged by the proposition that there were no incidents on the date of termination to justify the act of termination, referred to the rotten pumpkin and some rice allegedly cooked without salt and pepper on that day. The last matter was not put to the applicant in cross-examination. It was Ori’s allegation that the pumpkin had not been stored too long and that there was a round rotten wart in a pumpkin and this was not the first occasion that the applicant used rotten vegetables. However, somewhat inconsistently, Ori conceded that the pumpkin and the rice incidents on the date of termination had nothing to do with his decision to terminate the applicant.
The evidence concerning the termination points to a conclusion that the respondent had no contemporaneous justification for terminating the applicant’s employment on or about 1 June 1995. Such justification as was eventually proffered was really thought of after the applicant had been terminated and in response to the applicant’s insistence on Ori explaining his allegation that the cooking standard had dropped. In other words, Ori had already decided to and had taken steps to terminate the applicant before he saw any unsuitable cuts of pumpkin on the preparation bench or tasted the rice and decided that it lacked salt and pepper. By that stage he was neither interested in giving any explanation nor was he interested in hearing from the applicant any explanation he may have had concerning these incidents or any other earlier incident. This is clearly a breach of s.170DC of the Act.
Ori’s actions on the date of termination are consistent with his view that because the applicant was a casual employee he could dismiss him at will. Essentially, in order to justify the termination the respondent relies on a series of incidents none of which occurred on the date of termination and none of which were the subject of proper counselling or warnings. Moreover, many of the incidents complained of were not the subject of proper investigation and individually could not provide a sound, defensible and well-founded basis for termination.
The performance related incidents complained of by the respondent
It was the respondent’s contention that at first the applicant was enthusiastic and quick to learn the menus and kitchen techniques required in the performance of his duties. However, following the initial period of instruction by Ori, and after Ori was not fully supervising the applicant’s work, it is alleged that the applicant’s performance deteriorated to such an extent that the respondent’s business interests were threatened; not to mention the well-being of some of the customers.
The incidents complained of are summarised in the following paragraphs:
The burning of several batches of rice.
Ori was unclear about dates and times admitting in cross-examination that he had prepared notes and read them beforehand to help him give his evidence. Even with this sort of preparation he could not be more specific other than to say that most of the incidents complained of occurred in April or May 1995. In cross-examining the applicant Mr Macken put specific dates to the applicant concerning a number of the incidents however his client was unable to identify or confirm those dates in evidence-in-chief.
The applicant claims that he cooked more than 100 pots of rice while employed by the respondent. He readily recalled burning some rice and, in particular, the onions in the rice “catching” during his instruction period as well as a further occasion in March 1995. It was not put to him that this last incident occurred in May 1995; nor was it ever suggested to him in cross-examination that he burnt rice each month and was specifically warned other than “to keep his eye” on the rice. The applicant also told the Court that in a busy kitchen there were mistakes from time to time. Ori conceded this much in his evidence.
Burnt vegetable patties
The respondent complained that the applicant burnt “dozens” of vegetable patties which had to be thrown away. Up to twenty patties a day were made by the applicant and, according to the respondent, it threw away dozens of those patties over the time the applicant was employed with the respondent. The applicant admitted burning five patties on one occasion having cooked some 2,000 while employed by the respondent, however, he denied burning any more than that batch. He conceded that the burnt batch which were brought to his attention by Ori, had to be thrown away. The incident was not the subject of a specific warning.
The metal bolt in the chicken pattie
The respondent alleged that it received a complaint from a customer who purchased a chicken pattie and found a bolt in the pattie. Ori alleges that the shop manager brought the bolt to him telling him that it had been returned by a customer. He investigated and as a result concluded that the metal bolt had fallen from an ice cream scoop used by the applicant to make the chicken patties. The scoop was supplied to the applicant by the respondent as a piece of kitchen equipment. It was maintained by the respondent, as was all the equipment supplied for the applicant’s use, and the applicant was instructed to use the scoop to measure out the appropriate quantity of pattie mixture for cooking. The mixture was made by the applicant and the method for measuring and cooking the numerous patties on a daily basis was adopted by him in response to specific instructions from his employer.
Ori accepted the customer’s complaint and took the view that the applicant was responsible for the incident. This was because, in Ori’s opinion, the mixture was like a dough and, if the applicant had been more vigilant, he should have seen the bolt on the top of the mixture before he scooped the offending pattie mix from the large mixing bowl he used to make the patties in. There was no warning other than an alleged instruction to the applicant to watch what he was doing.
I found Ori’s rather unscientific explanation for the apportionment of blame to the applicant unconvincing. The respondent employer was at all times responsible for the provision of the equipment and its maintenance; not to mention the work methods adopted. The metal bolt was described as a small one and I am satisfied that it was not at all reasonable to expect the applicant or any other person working with a substantial quantity of food mixture to meet the extraordinary standards of vigilance required by the respondent to avoid the consequences of the breakdown of the respondent’s well used equipment. If anything this incident demonstrates the very high and unrealistic standards of performance demanded of the applicant by an employer who had no system of checking and maintaining its equipment and, who, quite irresponsibly, ignored the need for it to maintain high standards in the supply, checking and maintenance of equipment used in the preparation of food for the sale to the public.
Eggshells in the chicken patties
The respondent alleged that another instance demonstrating the applicant’s want of performance of his duties occurred in April or May when eggshells were found in the chicken patties. The applicant had agreed that there had been such an incident. However, at his suggestion the respondent implemented a system whereby a colander was used when making the pattie mix with eggs to prevent any eggshells straying into the mixture. The respondent alleged that in eight years of operation this sort of problem had never arisen. Its existence was, therefore, an indication of the applicant’s failure to take care. There was no evidence that any customer complaint preceded this incident and, on the evidence, a rather small adjustment to the work system obviated both the risk and the problem.
The undercooked chicken
Ori agreed that he instructed and trained the applicant to roast chickens on the respondent’s rotisserie (constructed and designed by Ori some 10 to 12 years earlier) by reference to time; that is to say 11/2 to 2 hours depending on the size of the chicken placed on the rotisserie. The applicant was required to watch the time and to check the chicken’s colour when removing it from the oven. The respondent has regular customers one of whom purchased roast chickens each Friday for some two years. In April or May this year this customer complained to Ori by telephone that a chicken purchased on the Friday beforehand was undercooked. The chicken was not returned however Ori accepted the complaint as genuine. Throughout the hearing there was a great deal said about this chicken, the suggestion being that it was almost raw.
Ori conceded that in order to ascertain whether a chicken is undercooked it may be necessary to cut it open. From his enquiries Ori discovered that the offending chicken was sold by the shop manager, Rena, and to do so she had to manually remove it from the bain marie where it was kept for sale and place it in a bag. Ori told the Court that one can tell whether a chicken is cooked by its colour. If it looks pale there is “a chance that it is not properly cooked”. Rena the shop manager had been selling roasted chickens for 5 to 6 years and in Ori’s view she would know when a chicken was cooked and, if it was “a nice brown colour”, it would have been cooked.
Rena did not give evidence. Obviously she handled the chicken and was willing to sell it in the state she found it. I was particularly disturbed by Ori’s comment that the shop may have been running out of roast chickens and those left were not well done and “went to customers anyway”. This comment certainly contradicts any claim the respondent made that it maintained high standards in the sale of roast chickens to the public.
No evidence was given as to the extent, if any, the chicken was allegedly undercooked. It was certainly not obvious enough to be rejected by the sales staff if they ever exercised any vigilance over the products sold. It was alleged by Ori that the same problem occurred with the same customer on the previous Friday. However, he had not raised this previous occurrence with the applicant. The earlier incident was not put to the applicant in cross-examination and from this I infer that it was never raised with him even after the second chicken, which was the subject of the alleged complaint, was brought to his attention.
The applicant did respond to his employer’s complaint by observing that there were problems with the oven burner which meant that chickens were cooking unevenly. On the day following the complaint and the applicant informing Ori of his concerns about the oven the applicant alleges that Ori fixed the burner and this helped adjust the flame and solve the problem.
Ori denied that the undercooking of the chicken could have been caused by his oven. Indeed, he was adamant that the performance of his oven could not be responsible in any way. He agreed that he did some work on the oven on the following day but this was only to replace some worn parts in the rotisserie drive dog. According to Ori these parts are replaced every 3 to 4 years. He had noticed that the parts were worn some three weeks before the chicken incident and had purchased the parts without replacing them until the day following the discussion with the applicant about the undercooked chicken. Ori does the maintenance on the oven and he described his system for looking after it as one where he fixes anything that goes wrong and, if he notices anything wrong, he replaces it.
One of the difficulties in the respondent’s case was that much of the case it alleged against the applicant was not put in any detail to the applicant when he was cross-examined. I found Ori’s evidence on many matters of significance unconvincing and lacking in credibility. In order to justify his actions he recalled further and more compelling incidents of poor performance; not mentioned in his evidence-in-chief, much less canvassed with the applicant. For instance, he accused the applicant of cooking rancid lamb after having washed it, presumably to make it more suitable for cooking. Conduct of this kind in the preparation of food for public consumption might of itself be sufficient to terminate an employee’s employment. I found it astounding that this alleged incident was added as an afterthought behind; for instance, the issues of eggshells and burnt patties and rice. Bearing these observations in mind I am inclined to accept the applicant’s evidence in preference to that given by Ori. Accordingly, I am satisfied that the oven did malfunction in a way that probably contributed to the undercooking of one chicken, if in fact there was ever an undercooked chicken sold to a customer. Moreover, if the respondent’s method for ascertaining when a chicken is cooked is accepted then I am not satisfied that the applicant can be held to be entirely responsible for the sale of an allegedly undercooked chicken by a shop manager of many years sales experience. As with all other incidents the respondent held the applicant entirely to blame and took no steps to remonstrate with the shop manager for selling a chicken, which on the respondent’s version of events, was obviously undercooked.
Chicken guts, seasoning and stuffing
The applicant conceded that on one occasion the giblet and guts were stuck in a cooked chicken. It was his job to clean and remove these items. When Ori was cutting the chicken into sections he observed the guts in it. He also observed, he alleged, that it had not been seasoned with salt and pepper by the applicant as was required. He alleged that he had removed an entire batch of chickens on the same day because of the lack of seasoning in them. The allegations to do with the seasoning and the getting rid of a whole batch of chickens because of the omission of the seasonings were never put to the applicant.
The respondent takes orders for chickens. It has a recipe for stuffing chickens with rice, onion and seasonings. Ori alleges that he came into the shop in late May and found that an order for a large stuffed chicken had not been prepared. It was the applicant’s responsibility to prepare the stuffed chickens for the next day’s cooking. There was no stuffing left and to fill the order Ori took the stuffing from two smaller birds and discovered they only contained rice.
The applicant’s explanation was that he ran both out of time to do the job and the stuffing mix ingredients. This being so, he left a note on the respondent’s noticeboard for Ori. He had previously been instructed to leave messages and seek help if he needed it. He denied stuffing the smaller chickens with only rice. Ori denied that any notice was left for him and asserted that the ingredients for the stuffing were available at the relevant time. Notwithstanding this, he agreed that it was his responsibility to order and supply goods for the shop. If the ingredients for the stuffing were available to make stuffing it is somewhat surprising that Ori went to the trouble of taking the stuffing out of two smaller birds instead of making stuffing for the larger bird. His actions are consistent with there being no suitable ingredients available at that time.
It would be fair to say that at the date of termination the respondent believed that the applicant’s cooking standards were not what it required and it formed this belief by relying on the incidents referred to above. This belief, however, has not been substantiated as scrutiny of the events relied upon now discloses. Because of the admissions made by Ori it is more likely than not that he gave very little thought to either substantive or procedural fairness because he was ignorant of the obligations the respondent has as an employer. The letter of termination containing a rather broad allegation as the reason for the termination was an afterthought provided because the applicant insisted on receiving written reasons for termination.
I infer from the respondent’s inability and unwillingness to provide reasons for same when pressed on the date of termination that there was no valid and contemporaneous reason for termination connected with the applicant’s conduct or performance other than a general dissatisfaction over a number of comparatively small incidents. The more significant events relied on, which may have combined to support sound and defensible reasons for termination, are not proven. At best the evidence shows that the applicant may have only contributed to the incidents complained of.
This is a case where there was no proper opportunity given to the applicant to explain contentious matters regarding his performance before he was terminated eventually being given one weeks pay in lieu of notice. Such a failure on the part of the employer is a breach of s.170DC of the Act.
Even if one allows for the cumulative effect of all the performance matters as a basis for saying there was a well-founded reason for termination, the lack of procedural fairness in the termination process and the failure to give the applicant any explicit warning which would allow him to address some of the respondent’s concerns suggest that the termination in all the circumstances contravened s.170DE(2) of the Act; in that it was harsh, unjust or unreasonable. The failure of the respondent to properly maintain and service its equipment and accept responsibility either wholly or in part for some of the consequences of its own shortcomings is further evidence of the unreasonableness of the termination in all the circumstances.
Remedies
The applicant seeks reinstatement. I am satisfied that this is impracticable because of the small size of the respondent’s operation and the need for the applicant, Ori and Stooke to work in close proximity to one another.
It seems that by a letter dated 29 May 1995 the Australian Taxation Office notified the respondent that pursuant to s.218 of the Income Tax Assessment Act 1936 it required the respondent, as the applicant’s employer, to make payments to it from monies owing by the respondent to the applicant up to a sum of $499.65. This was said to be money due to it by the applicant as a tax payer. Consequent upon that notice the respondent paid the sum of $480.00, being the amount owing by it to the applicant for the one week’s notice referred to in its letter of termination dated 1 June 1995 (see Exhibit A1). Accordingly, in calculating any entitlement to compensation for the applicant’s casual employment I have taken into account the sum paid for and on behalf of the applicant by the former employer pursuant to the statutory notice received by it.
The applicant deposed to a number of efforts made to gain regular employment since 1 June 1995. He has not been successful in gaining employment having also lost the opportunity to return to his former employer in March this year. In considering the amount of compensation payable and bearing in mind the slow erosion of the employment relationship between the applicant and the respondent’s principle, Ori, both of whom, according to Stooke’s evidence, argued on a number of occasions over performance matters, I have calculated compensation at the rate of $480.00 per week over a 3 month period at $5760.00.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
Ori Enterprises Pty Ltd be substituted for Ted Ori as respondent.
Within 14 days of the date of making this order the respondent pay to the applicant the sum of $5760.00 by way of compensation.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding twenty-four (24) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 14 November 1995
Solicitors for the Applicant: Ryan Carlisle Thomas
Counsel for the Applicant: Mr R. Niall
Solicitors for the Respondent: Mr D. Macken
A.J. Macken & Co
Date of hearing: 24 & 25 October 1995
Date of judgment: 14 November 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - casual employment - reasonable expectation of continuing employment by the employee - the time at which a reasonable expectation of continuing employment is to be determined
Industrial Relations Act 1988 ss.170DC, 170DE(1), 170DE(2)
Industrial Relations Regulations, Regulation 30B(1)(d), 30B(3)(a),
30B(3)(b)
CASES:Andison v Woolworths Limited (unreported, Moore J 8 August 1995 No. NI 522 of 1994)
Hitchcock v Warner Bros Movie World (unreported, Judicial Registrar Boulton No QI 190 of 1994)
Stone v Australia Post (unreported, Judicial Registrar Tomlinson No. AI 1002 of 1995)
RAYMOND JOHN FORBES -v- ORI ENTERPRISES PTY LTD
No. VI 3227 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 14 November 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3227 of 1995
B E T W E E N :
RAYMOND JOHN FORBES
Applicant
AND
ORI ENTERPRISES PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 14 November 1995
THE COURT ORDERS THAT:
Ori Enterprises Pty Ltd be substituted for Ted Ori as respondent.
Within 14 days of the date of making this order the respondent pay to the applicant the sum of $5760.00 by way of compensation.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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