Rethmann Australia Environmental Services Pty Limited (ACN 002-429-781) v Melide

[1997] IRCA 151

DECISION NO:151/97

TERMINATION OF EMPLOYMENT - Alleged UNLAWFUL TERMINATION - Application for review of Judicial Registrar's decision - Whether termination was at initiative of employer - Conflict of evidence as to conversation - No fresh evidence adduced at the hearing of the review - No basis for choosing between the competing versions of the conversation - Onus of proof.

Wyndham Lodge Nursing Home Inc v Reader (No.2)(1996) 65 IR 253 applied.
Workplace Relations Act 1996, s 170EA

No. NI96/1996R
RETHMANN AUSTRALIA ENVIRONMENTAL SERVICES PTY LIMITED (ACN 002-429-781) v RUBEN EDWARD MELIDE

CORAM:       WILCOX CJ
PLACE;       SYDNEY
DATE:             8 APRIL 1997

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )        No. NI96/1996R
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN:RETHMANN AUSTRALIA ENVIRONMENTAL SERVICES PTY LIMITED (ACN 002-429-781)

Applicant

AND:RUBEN EDWARD MELIDE

Respondent

CORAM:    WILCOX CJ
PLACE:    SYDNEY
DATE:        8 APRIL 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application for review be allowed.

1. The orders made by the Judicial Registrar on 16 January 1997 be set aside and, in lieu thereof, it be ordered that the application under s 170EA of the Workplace Relations Act 1996 be dismissed.

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  )        No. NI96/1996R
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN:RETHMANN AUSTRALIA ENVIRONMENTAL SERVICES PTY LIMITED (ACN 002-429-781)

Applicant

AND:RUBEN EDWARD MELIDE

Respondent

CORAM:    WILCOX CJ
PLACE:    SYDNEY
DATE:        8 APRIL 1997

EXTEMPORE REASONS FOR JUDGMENT

WILCOX CJ:  This is an application by a former employer, Rethmann Australia Environmental Services Pty Limited ("Rethman"), for review of a decision of a Judicial Registrar that its employment of the applicant, Ruben Edward Melide, was terminated by it in breach of the Industrial Relations Act 1988, now the Workplace Relations Act 1996. The employment was terminated on 24 July 1996. A number of matters were put before the Court in support of the application for review. I will not consider them all as I have heard argument on only one point. That point is a fundamental question: whether the employment was terminated at the initiative of the employer.

It is common ground that Mr Melide's employment was terminated during the course of a meeting at about 5am on the morning of 24 July.  The persons who gave evidence concerning that meeting were the employee, Mr Melide, and Mr Norman Madison, the employer's foreman. 

Mr Melide was employed by Rethmann as a casual worker on a garbage collection run.  Work normally started each day at about 4.30am.  In relation to the casual employees, there was no guarantee that each available employee would be used each morning, although in practice Mr Melide usually was used.  He averaged about 30 hours per week.

It is common ground that, early in the morning of Wednesday, 24 July, Mr Melide telephoned Mr Madison, apparently from his home, and told him that he would meet Roy, who was a driver, "down the road"; that is, he would work but not start from the yard.  Mr Madison told Mr Melide he was "giving him the day off".  According to Mr Melide, Mr Madison then said he had to give priority to "financial members" or "union members".  He also said, according to Mr Melide, that if Mr Melide did not wish to join the union he should "go work elsewhere". 

There was a history in relation to Mr Melide's union membership.  Apparently, at one stage he had been a union      member; but he did not renew his subscription.  This caused some discontent amongst his work-mates.  He then paid a $20 subscription for a short term renewal.  Notwithstanding that, there was some continuing animosity towards him from his fellow employees.

Mr Madison gave evidence denying the statements attributed to him by Mr Melide in relation to union membership and working elsewhere. 

After the telephone conversation, Mr Melide went to the yard.  He arrived within a few minutes; the yard was not far from his home.  According to Mr Melide, he asked Mr Madison to explain why he was not given a run and told him he felt it was discrimination.  He asked why he was "being treated like that".  He said Mr Madison replied that, if he "wanted to see discrimination", he would give him one or two days a week and "then he would see discrimination".  Mr Madison denied having made this statement.

It is common ground that other matters were discussed.  Mr Melide said he brought up some grievances he had harboured for some time.  One of them was the company's alleged failure to investigate a complaint he had made about a fellow employee.  He also complained he was getting insufficient work.  He said he also referred to his position with the union.  Mr Madison said he did not recall the substance of the conversation.  He said it went on for about 20 minutes.

It seems to be common ground between the two men that the conversation occurred near Mr Madison's office.  Apparently in an endeavour to terminate it, Mr Madison went into his office.  However, Mr Melide followed him and closed the door.  His explanation in evidence was that there were other casuals in the outer section of the office, and they were listening.

Mr Melide gave evidence that, when he closed the door, "Norm was panicking and he told me to open the door".  Mr Melide said he laughed and opened it immediately.  Mr Madison then said he had nothing more to say and he should just leave.  Mr Melide said he replied "No, I want some answers" and persisted to get these.  Mr Madison once again told him to leave and threatened to call the police.  Mr Melide continued asking for answers.  Mr Madison picked up the telephone, dialled the police and asked them to come down.  During this time, Mr Melide made a reference to his separation certification; that is, the certificate given by an employer for social security purposes in respect of an employee whose employment is terminated.

Even on Mr Melide's evidence, this was the first reference to the termination of his employment.  It is important to note that it came from Mr Melide, not from Mr Madison.  Mr Madison responded that the document would need to be prepared by the paymistress.  He asked Mr Melide what reason should be put on the separation certificate and Mr Melide replied, "Anything". 
         I asked counsel for Mr Melide, Ms Judith Keys, to identify the act of the employer that constituted a termination by it of Mr Melide's employment.  She referred to Mr Madison's alleged statements about working somewhere else, if Mr Melide did not want to join the union, and about giving him work on only one or two days per week.  She was unable to point to anything else and, so far as I can see, there is nothing else in the evidence that could arguably be relied on.  It seems clear that Mr Madison never said to Mr Melide, in terms, that he was "dismissed", "sacked" or anything of that nature.

Both the statements relied on by Ms Keys were strongly disputed.  During the course of his cross-examination before the Judicial Registrar, counsel put both the alleged statements specifically Mr Madison.  He denied them.  When I mentioned this to Ms Keys, she referred to what was said by the Full Court in Wyndham Lodge Nursing Home Inc v Reader (No 2) (1996) 65 IR 253 at 258. I agree that the relevant passage is directly in point, but it does not assist Ms Keys' argument. In the cited passage the Full Court pointed out that, where contested ultimate findings of fact depend on what conclusions ought to be drawn from primary facts that are uncontested at the review stage, the Judge conducting the review is as well able to make the ultimate findings as was the Judicial Registrar. In such a case, there is no difficulty in determining the matter on the papers, without seeing and hearing the witness. The Full Court went on:

"However, where there is a dispute as to primary facts it will usually be impossible for the Judge to resolve it on the papers.  Determination of a dispute about primary facts involves choosing between conflicting elements of the evidence.  This almost always involves an assessment of the witnesses not only as to their truthfulness but also as to their characters and personalities and the likelihood that they acted in a particular way.  Without seeing and hearing the witnesses the Judge has no basis for substituting his or her opinion on such matters for that of the Judicial Registrar.  The Judge will be bound to hold that the party who bears the onus of proof on the disputed issue has failed to discharge that onus.  It is important that the parties understand this in determining how they wish a review to be conducted."

That is the position in this case.  There is a dispute as to the primary facts:  the content of the two conversations. 

I held a directions hearing in connection with the present review at which there was discussion as to the course proposed to be taken by the parties.  I was informed there may be some supplementary evidence; and indeed two short additional affidavits were filed by the employer.  They are not relevant to the present question.  Notwithstanding Wyndham Lodge, the representatives of Mr Melide took no steps to adduce oral evidence on this critical point.  Mr Melide was not recalled and there was no request for Mr Madison to be available for further cross-examination.  The result is that I am left in the precise position discussed in Wyndham Lodge.  I have assertion and counter-assertion as to whether Mr Madison told Mr Melide that if he did not wish to join the union he should work somewhere else, and in respect of his alleged comment regarding discrimination.  I have no way of determining where the truth lies. 

It is not clear to me that Mr Madison's alleged statements, if proved, would constitute a termination at the initiative of the employer.  But, even if they would, I cannot find them proved; they are disputed and the party who bears the onus of proving termination has chosen to take a course that does not enable me to resolve the dispute. 

It is unfortunate to determine any case on the basis of onus of proof, but this is the course I have to take.  The situation was appreciated by Ms Keys before the hearing today; there was no element of surprise.

It seems to me I have no alternative other than to rule that the employee has not established termination at the initiative of the employer. Consequently, I must allow the review and set aside the order made by the Judicial Registrar, and I do so. The order I make is that the orders made by the Judicial Registrar on 16 January 1997 be set aside and, in lieu thereof, it be ordered that the application under s 170EA of the Workplace Relations Act 1996 be dismissed.

I certify that this and the preceding seven (7) pages
are a true copy of the Reasons for Judgment
of Chief Justice Wilcox.

Associate:

Dated:    8 April 1997

APPEARANCES

Counsel for the Applicant:           P Huntington

Solicitors for the Applicant:             Employees Federation of New South Wales

Counsel for the Respondent:          Judith Keys

Date of hearing:  8 April 1997