Reader v P&O Catering and Services Pty Ltd
[1996] IRCA 484
•03 October 1996
DECISION NO: 484/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1227 OF 1996
B E T W E E N:
JAG JULIUS READER
1st Applicant
AND: THE AUSTRALIAN WORKERS UNION
2nd Applicant
A N D:
P&O CATERING AND SERVICES PTY LTD
Respondent
REASONS FOR JUDGMENT
3 OCTOBER 1996 BOON JR
INTRODUCTION
This is an application under section 170EA of the Industrial Relations Act 1988 (C'th) ("the Act") for payment of compensation arising out of the alleged unlawful termination of Mr Reader's employment by P&O Catering and Services Pty Ltd ("POCS").
The respondent, POCS, says that this Court has no jurisdiction to hear the matter as there was no termination at the initiative of the employer in this case.
The applicants, Mr Reader and the Australian Workers Union ("AWU"), allege that there was such a termination. Furthermore, Mr Reader and the AWU state that there was no valid reason for the termination and that a remedy should be granted by this Court.
The respondent says that if it is found that there was a termination at the initiative of the employer, the termination was for a valid reason based on the operational requirements of the respondent's undertaking. Further, it says that if this Court finds that there was an unlawful termination of Mr Reader's employment, it would be inappropriate in all the circumstances of this case to grant any remedy to Mr Reader.
THE EVIDENCE
P&O Catering and Services Pty Ltd provides crews of workers, including chefs, cooks and cleaners, to various construction and civil engineering sites around Western Australia. Mr Reader is a chef, whose most recent employment relationship with POCS began in January 1995. He worked for the respondent on various sites before he commenced on Varanus Island (on the North-West Shelf of Western Australia) as a chef on 26 September 1995. Mr Reader was part of a work crew of four or five people who provided catering and cleaning services to a construction crew building a gas plant on Varanus Island.
Mr Reader signed an Employee Appointment Advice, setting out his conditions of employment on the island. Clause (I) of that document reads as follows:
"(I) I understand that when camp numbers fluctuate or for any reasons of my suitability, I may be transferred to other sites at the company's discretion."
The POCS camp manager was Mr Brian Williamson. Mr Williamson's wife, Mrs Maude Williamson, was one of the other employees on the island. The head chef on the island was Mr Paul Archer. On 1 February 1996, POCS flew a female cleaner to the island, whose duties were divided between the kitchen and outside work.
Mr Reader's evidence was that he felt Mr Williamson disliked him. He says, however, that he had no problems in relation to his work until around Christmas of 1995.
Mr Reader was given a written warning from Mr Williamson on 16 January 1996, relating to his work performance. Mr Reader does not accept the content of the warning or Mr Williamson's version of the circumstances surrounding it.
On 31 January 1996, Mr Reader was given a second written warning by Mr Archer. That warning related to his work performance and attitude. Once again, Mr Reader does not accept the contents of the warning.
On Wednesday, 7 February 1996, Mr Reader was telephoned by Mr Nigel Wiltshire, POCS Manager-Contract Support, who was based in Perth. Mr Wiltshire asked Mr Reader to fly to Perth on the following day to discuss what was happening on the island and his work performance. On the evening before he left the island, Mr Reader had a conversation with the female cleaner employed by POCS. She bought him a drink and they each had a cigarette. During the conversation, she expressed her desire to Mr Reader that she be transferred to Port Hedland, as she had recently become engaged and her fiance lived there.
On the morning of Thursday, 8 February 1996, Mr Reader flew to Perth and met Mr Wiltshire at the company's Perth offices. He was accompanied by a union representative. Mr Wiltshire's evidence was that he asked Mr Reader to this meeting as Mr Reader had received two written warnings in the space of a two-week period. It appeared that there were serious problems on the island which needed to be looked into. At the meeting, Mr Wiltshire advised Mr Reader that a number of the Varanus Island work crew had complaints about his work performance and attitude.
Mr Reader denies any suggestion that his job performance was not up to the required standard. He called Mr Peter Erikson, an employee of the principal contractor on Varanus Island, to give evidence that Mr Reader's work performance was always good. Mr Erikson further gave evidence that Mr Williamson had told him that he did not like Mr Reader, and wanted him off the island.
During the course of the meeting with Mr Wiltshire, a message was received by the POCS head office by way of a facsimile from the island. The facsimile was sent by the female cleaner employed by POCS on the island. The message was treated as an allegation of "sexual harassment" against Mr Reader.
The position of POCS is that at that meeting, it was decided that the sexual harassment allegation needed further investigation and that it should all be kept quiet and left with the company for investigation. Unfortunately, Mr Reader himself, during a telephone conversation with one of the construction workers on the island, advised that worker that the female cleaner had made an allegation of sexual harassment against him. As a result, most, if not all, of the people working on the island became aware of the allegation. The female cleaner was ostracised by the island's work force and was eventually transferred to Port Hedland.
Mr Wiltshire gave evidence that POCS had, in any event, been having some difficulties with its contractor in relation to the POCS crew employed on the island. The principal contractor had not been happy with the POCS crew. Mr Reader's own evidence was that there had been some difficulties experienced with the principal contractor around Christmas of 1995. Mr Wiltshire said that in the circumstances, POCS management decided to transfer all of its catering and cleaning crew from the island into other positions. A new crew was flown into the island.
Mr Wiltshire rejected any suggestion that Mr Reader could have been returned to the island after the meeting and his rest and recreation leave in Perth. He said that in view of the problems and the complaints by its principals, it was necessary and desirable for POCS to have an entirely different crew sent to the island. If Mr Reader been returned to the island, not only would he have been seen as being treated differently from the rest of the crew, but he would have been aware of the old habits and old ways of doing things, and the company needed a fresh start. Mr Reader wanted to return to the island as it had desirable conditions in that he could go fishing in his spare time. He enjoyed the lifestyle, and the pay and conditions available to him on the island.
Mr Reader and his union representative, Mr Lourey, both felt strongly that there had been some kind of conspiracy to remove Mr Reader from the island, and they alleged that he was "set up". The reasons for this include Mr Williamson's obvious dislike of Mr Reader; the fact that, according to Mr Reader, the employees of the principal contractor always approved of the work he did; and the fact that the female cleaner had expressed a desire to Mr Reader to be sent to Port Hedland, and that this subsequently had occurred. The female cleaner involved had had a previous close working relationship with Mr and Mrs Williamson.
Mr Reader's evidence was that he was extremely distressed and upset by the allegation of sexual harassment. He was also concerned about the alleged conspiracy against him. Both Mr Lourey and Mr Reader pressed for a full investigation into the matter. Mr Wiltshire's evidence was that he flew to the island and interviewed the POCS employees and also spoke to some of the employees of the principal contractor. His view was that the circumstances surrounding the two written warnings constituted a "grey area" in that it was impossible for him to obtain any independent evidence of what was being alleged against Mr Reader. He expressed this to Mr Reader, some time after he returned to Perth. Mr Wiltshire's firm view was, however, that there appeared to be some substance to the allegations. Mr Reader continues to deny those allegations. In the circumstances of this case, it is not necessary for me to determine whether or not there was any substance to the allegations contained in the written warnings. The respondent does not rely on those allegations and there was no evidence adduced by the respondent in support of those allegations.
Furthermore, the female cleaner, after being interviewed by Mr Wiltshire, decided she did not want to proceed with her allegations against Mr Reader and signed a letter on 20 February 1996 stating in part, "I hereby wish to withdraw any claim for sexual harassment in this recent instance". When this document was shown to Mr Lourey, he was not satisfied with the terms of the withdrawal and at Mr Lourey's request, the statement from the female cleaner was subsequently amended to read, "I hereby wish to withdraw any allegation for sexual harassment in this recent instance".
Evidence was given on behalf of POCS that on 12 February 1996, Mr Reader was offered an alternative position with the company at Big Bell. Mr Reader rejected that offer. Further, POCS states that a further offer of employment at the Bounty Mine was made to Mr Reader on 20 February 1996. The company says that Mr Reader also rejected that offer.
Mr Wiltshire gave evidence that after Mr Reader had rejected two job offers, there were further discussions between Mr Wiltshire, Mr Lourey and Mr Reader. The company felt that it could not continue to pay Mr Reader at his previous rates if he continued to refuse job offers. It is apparent that Mr Wiltshire went to some trouble to ascertain Mr Reader's wishes in relation to an alternative job and the company sought to accommodate those wishes. By letter dated 1 March 1996, Mr Wiltshire wrote to Mr Reader in the following terms:
"Dear Jag,
Meeting - Monday, 26 February 1996
Thank you for coming in to see me to finalise arrangements.
As discussed, we confirm you will be paid until such time as a job offer is made to you.
It was agreed that the job offer made in the first instance might not be ideal and not necessarily 6&1 R&R. However, we would continue to look for a position that was 6&1, whilst you were working in this temporary role.
Whilst you have refused two job offers to date, it was felt you must accept the next offer made or payment would cease.
Since our discussion, I can officially inform you that the sexual harassment claim against you has been withdrawn.
We look forward to a positive and professional working relationship.
Should you have any queries, please don't hesitate in contacting me."
The evidence from witnesses called on behalf of POCS was that three further job offers were made to Mr Reader, as follows: on 5 March 1996, the position of cook at Mt Gibson; on 6 March 1996, the position of cook at Orient Well; and on 14 March 1996, the position of cook at Sunrise Dam.
Mr Reader's evidence in relation to the five job offers was variously that he had not received all of those offers, that he did not consider verbal offers to be valid job offers, that he was given insufficient information about the job offers for him to make up his mind and that he was unable to accept an alternative job whilst he had serious allegations hanging over his head. He wished to remain in Perth whilst the investigation process was under way, so that he could answer any allegations made against him.
Mr Lourey's evidence was that he would not go so far as to describe any except the first and the last job offers as job offers. Mr Lourey said that the last job offer was the one that he had hoped would enable all the parties to walk away happy. However, Mr Reader did not trust POCS, and instructed Mr Lourey to institute the present proceedings against the company. Mr Reader said that although he did consider that the final job offer of the position of cook at the Sunrise Dam did constitute a valid job offer with sufficient detail, by that time it was too late and it was a case of "shutting the gate after the horse had bolted".
On balance, I prefer the evidence called on behalf of the respondent in relation to the job offers. I am satisfied, on the balance of probabilities, that five job offers were made to Mr Reader between 12 February and 14 March 1996 and that he rejected each of those offers.
I found Mr Reader's evidence in relation to the job offers to be vague. Further, he sometimes contradicted himself. In contrast, the evidence given on behalf of the respondent company was firm and to the point.
In relation to Mr Reader's allegations that he was not provided with sufficient details of each job to enable him to make up his mind, it is my view that such information was available to Mr Reader and he simply was not interested in accepting an alternative position.
The attitude of both Mr Reader and Mr Lourey acting on his behalf was that despite the fact that the female cleaner had withdrawn the allegation of sexual harassment, those allegations, once they were out in the open, would not simply go away and should be investigated by the company.
It is difficult for me to see what more the company could have done in relation to those allegations. I accept that Mr Reader was upset at being confronted by such allegations. The allegations have, however, been withdrawn and that should be the end of the matter. It is unfortunate that Mr Reader told others of the allegations made against him. He is understandably concerned that those allegations, once having been made, may affect his future job prospects.
I indicated at the hearing that the allegations were, in any event, not serious. The allegation in the facsimile sent to the meeting on 8 February was that, as the female cleaner was in the dining room washing the dishes, Mr Reader was getting an ice-cream. Mr Reader said to the cleaner, "So is there any chance?" with "a seductive look in his eye". The cleaner said, "No way" and Mr Reader said, "I can keep trying, though", with a smile on his face. The only other allegation is that at the bottom of the facsimile it states, "+ dirty songs, jokes".
At the hearing, I expressed my view that this did not, even if proved, constitute "sexual harassment". In any event, Mr Reader denies the allegation and there is no evidence before me which could substantiate that allegation.
By letter dated 21 March 1996, Mr Wiltshire wrote to Mr Lourey, stating as follows:
"Thank you for your telephone message, left on 19 March 1996.
It is my understanding from this message that Jag Reader has refused to accept the position offered to him at Sunrise Dam (as outlined in the letter sent to him) and wishes to terminate his services with us.
Due to this notification, I have organised for his final pay with annual leave accrual up to 19 March 1996, to be forwarded to him.
As verbally informed to you on 12 March 1996, I now confirm in writing that the sexual harassment allegation has been withdrawn.
I presume this concludes all further discussions in relation to Jag Reader."
Mr Wiltshire's evidence was that it was his understanding that Mr Reader had voluntarily left his employment with POCS.
By application filed on 26 June 1996, Mr Reader and the Australian Workers Union have alleged that Mr Reader's employment was unlawfully terminated by POCS.
WAS THERE A TERMINATION AT THE INITIATIVE OF THE EMPLOYER?
Mr Lourey, on behalf of Mr Reader, conceded that POCS had a contractual right to transfer its employees, but said, however, that there was no operational requirement to move Mr Reader from Varanus Island. Mr Lourey argued that if it was an exercise of POCS's contractual right under clause (I), the company would not have been required to give Mr Reader various job offers, but could simply have transferred him. It was argued that the union and Mr Reader expected the company to have a proper and full inquiry into all of the circumstances surrounding the allegations. It was suggested that Mr Reader was the victim of a set-up.
Although I am satisfied that Mr Lourey made the allegations of a "set-up" or a conspiracy in good faith, there is insufficient evidence in my view to find that this was so.
Mr Lourey submitted that there was a termination at the initiative of the employer. Although he was unable to pinpoint a date at which the alleged termination took place, his view was that the termination occurred at whatever point the company had had a reasonable opportunity to inquire into what was alleged and, having had that opportunity, sufficient time to make a decision as to whether the sexual harassment claim was well-grounded. In Mr Lourey's view, this would have taken place anywhere between half a week and two weeks after the sexual harassment claim was made.
Mr Curlewis, on behalf of POCS, submitted that there was no termination at the initiative of the employer, and that this was consistent with the version of events given by Mr Reader. It was submitted that it was clear that Mr Reader had called for his entitlements after he had rejected the final job offer, and that this, at best, called the contract to an end.
In the case of Mohazab v Dick Smith Electronics (1995) 62 IR 200, the Full Court stated, at page 205,
"Viewed as a whole, the convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the convention to treat the expression 'termination at the initiative of the employer' as a reference to a termination that is brought about by an employer and which is not agreed to by the employee.
Consistent with the ordinary meaning of the expression in the convention, a termination of employment at the initiative of the employer may be treated as the termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression 'termination of employment'."
Seen in that context, it is my view that on the evidence, it could not be said that it was the employer's actions which were the principal contributing factor ending the employment relationship. On the contrary, the employer went to some lengths to continue the employment relationship and made five offers of alternative employment to Mr Reader. It was only when he had rejected several job offers that the employer indicated that it was not prepared to continue paying Mr Reader. Even then, the employment relationship continued in that further job offers were made. It is my view that Mr Reader's actions in rejecting each of the job offers and then calling for payment of his entitlements were what brought the employment relationship to an end. In these circumstances, it is my view that there was no termination at the initiative of the employer and that this Court has no jurisdiction to hear the matter.
WAS THERE A VALID REASON FOR THE TERMINATION?
If I am wrong in relation to the jurisdictional question, I consider that in any event, the employer had a valid reason for terminating Mr Reader's employment. It was clear from the evidence of Mr Wiltshire that the management of POCS had made a decision, based on its operational requirements, that the POCS crew had to be re-assigned from Varanus Island. This was because there had been complaints from its principal contractor about the POCS crew on the island. That evidence was not challenged. Further, POCS had a contractual right to transfer Mr Reader from the island. In these circumstances, I consider that there was a valid reason for the termination.
REMEDY
If I am wrong about the jurisdictional issue and the question of whether or not there was a valid reason for the termination, it is my view that it would, in any event, have been inappropriate to award a remedy to Mr Reader. This is because, in refusing five offers of alternative employment, Mr Reader failed to mitigate his loss. I referred the parties to the case of Bechara v Gregory Harrison Healey & Co, IRCA 142/96, unreported, Madgwick J, 19 April 1996. In that case, reinstatement was offered two days after the unlawful termination by the respondent. That offer was declined. His Honour, Madgwick J, was of the view that it was not appropriate, in all the circumstances, to award any compensation to the applicant in that case, as the applicant had failed to mitigate her loss.
For these reasons, I am of the view that the appropriate order is that the application be dismissed.
I certify that this and the preceding 12 pages are a true copy of the reasons for decision of Judicial Registrar Boon.
Associate :
Dated : 3 October 1996
APPEARANCES
Representative for the Applicant: Mr M Lourey
Organisation for the Applicant: Australian Workers Union
Counsel for the Respondent: Mr I Curlewis
Solicitors for the Respondent: Phillips Fox
Dates of Hearing : 23 and 24 September1996
Date of Judgment : 3 October 1996
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether TERMINATION AT THE INITIATIVE OF THE EMPLOYER - application dismissed
Industrial Relations Act 1988 (C'th)
Bechara v Gregory Harrison Healey & Co, IRCA 142/96, Madgwick J, 19 April 1996, unreported.
Mohazab v Dick Smith Electronics (1995) 62 IR 200.
JAG JULIUS READER & THE AUSTRALIAN WORKERS UNION V P&O CATERING AND SERVICES PTY LTD, WI 1227 OF 1996.
Before: BOON JR
Place: PERTH
Date: 3 OCTOBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1227 OF 1996
B E T W E E N:
JAG JULIUS READER
1st Applicant
AND:
THE AUSTRALIAN WORKERS UNION
2nd Applicant
A N D:
P&O CATERING AND SERVICES PTY LTD
Respondent
MINUTE OF ORDERS
3 OCTOBER 1996 BOON JR
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
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