Santos v Sidy’s Icecream
[1996] IRCA 173
•10 May 1996
DECISION NO: 173/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether employee resigned or abandoned employment - whether employment terminated at the initiative of employer - whether employee employed as a casual at the date of the alleged termination - duty to mitigate loss - relevance of subsequent offer to reinstate to question of mitigation and amount of compensation payable
Industrial Relations Act 1988 s.170CB
Industrial Relations Regulations regs. 30B(1)(d), 30B(3)(a), 30(3)(b)
CASES:Mohazab v Dick Smith Electronics Pty Ltd (unreported, Full Court of the Industrial Relations Court of Australia, No. NI 2571 of 1995, 28 November 1995)
Anne Rheinberger v Huxley Marketing Pty Ltd (unreported, Moore J, NI 2064R of 1995, 16 April 1996)
Maria Teresa Bechara v Gregory Harrison Healey & Co,
(unreported, Madgwick J, NI 1129 of 1994, 19 April 1996)
ELIANO EUGENIO SANTOS - v - SIDY’S ICECREAM
No. VI 4433 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 10 May 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 4433 of 1995
B E T W E E N :
ELIANO EUGENIO SANTOS
Applicant
AND
SIDY’S ICECREAM
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 10 May 1996
THE COURT ORDERS THAT:
The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 4433 of 1995
B E T W E E N :
ELIANO EUGENIO SANTOS
Applicant
AND
SIDY’S ICECREAM
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 10 May 1996
REASONS FOR JUDGMENT
The applicant seeks a remedy pursuant to Division 3 Part VIA of the Industrial Relations Act 1988 (the Act), alleging that his employment with the respondent was unlawfully terminated on or about 16 August 1995. There was no indication in the applicant’s opening as to what part or parts of the Act were breached, however, because of my findings on the preliminary issue of whether or not there was termination at the initiative of the respondent employer (see section 170CB), it has not been necessary for me to deal with contravention of the other sections of the Act. In making his claim the applicant confined the claim for remedy to compensation of $5,300; being his loss of remuneration from the alleged date of termination until his resumption of gainful employment with another employer.
The main issue in the proceeding, as indicated above, was the question of whether there was termination of the employment at the initiative of the respondent on or about 16 August 1995. In addition to this there was an issue concerning the applicant’s employment status at all relevant times.
Dealing with the last issue first, it was common ground that in approximately June 1994 the applicant commenced employment with the respondent on the basis that he was paid at the rate of $10.30 per hour and worked at the respondent’s factory, which was dedicated to the production of icecream for supply to restaurants and the Wendy’s shops around Melbourne and interstate. The duties engaged in by the applicant ranged from duties on the production line through to duties involving cleaning around the factory and driving a delivery truck from time to time. When the applicant was engaged in June 1994 it was again common ground that either at the point of engagement or some short time thereafter he indicated to the employer that he would be leaving his position in December 1994 to travel overseas for some months. When the time came for him to leave he did just that and left in the knowledge that he could return and, if work was available, the employer would consider rehiring him. On his return to Australia in February 1995 the respondent had work available and the applicant was rehired with no apparent variation in the terms of conditions of his employment.
It is the respondent’s case that the applicant was employed as a casual employee performing the duties referred to above and that employment was a day shift from 6.00am in the summer period or 7.00am during the winter months, with the applicant working up to 50 hours per week, six days per week. It is clear that the hours varied either as a result of the seasonal pressures on the business or if there was a need for employees to do extra hours depending on the amount of staff coming on for work on the late shift. There was also some variation in the weekend work offered. He was not paid any holiday or sick leave pay during the currency of the two periods of employment.
In his evidence the applicant conceded that on at least one occasion prior to the events occurring on 16 August 1995, he and the other employees of the factory had not been required to attend for work for a short period of time because production had either ceased or diminished whilst Simon John Hansford (Hansford) was absent overseas. In other words, although there had been some consistency in the hours worked and no doubt an expectation on the applicant’s part that he would be offered further employment on a regular basis, there could be variation in the hours worked and the work offered depending on the employer’s needs. With the shut down of production in the period mentioned and no offer of work the applicant obviously accepted this as well as the flexibility of having been able to leave his position for some months with the prospect of re-employment if work was available on his return.
Very little was asserted against the applicant in relation to any matters concerning his performance during the two periods of employment with the respondent. Insofar as there was any issue as to his status at the date of the alleged termination, it is my finding on the evidence that he was a casual employee who was 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 at the date of the alleged termination had a reasonable expectation of continuing employment by the employer (see Subregulations 30B(1)(d) and 30B(3)(a) & (b) of the Industrial Relations Regulations).
THE EVENTS LEADING UP TO THE ALLEGED TERMINATION
The respondent’s factory is located in Keysborough in Victoria. On 16 August 1995 the applicant was engaged in duties involving van deliveries of icecream to the Mornington Peninsula. It was agreed by both parties that from at least July 1995 there was an understanding that the applicant would need to leave work on Wednesdays by 5.00pm in order to attend classes at Barton College. 16 August 1995 was a Wednesday and on that afternoon when the applicant made contact with the factory, he was informed that one of the main freezers had broken down and there was an emergency; in that icecream had to be shifted manually from the malfunctioning freezer to a second freezer in another part of the respondent’s factory. He along with other employees were asked to remain and assist with the emergency. The discussion in which the applicant was informed of this matter was conducted with the respondent’s factory supervisor, Graham Frederick Pitcher (Pitcher).
Because of his commitment to attend school the applicant told Pitcher he could not remain late to assist with the emergency. Pitcher then asked him to at least wait until Hansford, a director of the respondent company and essentially the person in charge, had arrived. The applicant declined to do this and after arriving at the factory and returning the van, left for his class.
The only oral evidence heard by the Court was from the applicant, Hansford and Pitcher. Having had the opportunity to hear from and view the witnesses, as well as consider the plausibility of their evidence, I have accepted the evidence of the respondent’s witnesses where there is any conflict between the evidence given by them and the applicant. Essentially, there was not a great deal of conflict on the factual matters; the differences primarily lying in the inferences the Court should draw from the words and conduct of the parties.
The applicant has the burden of proving on the balance of probabilities that there was termination at the initiative of the respondent. What occurred after he left work on 16 August 1995 does not support a finding that there was any conduct or any course of conduct on the part of the respondent which might be construed as having initiated the termination process. Quite the contrary appears to be true.
Hansford conceded that he was not happy with the applicant’s failure to comply with Pitcher’s request to remain and assist the respondent in its hour of need. On the evening of 16 August 1995 he telephoned the applicant’s home and left a message with the applicant’s wife indicating that the applicant should not attend for work at 7.00am on the following day because there could be no production without the freezer space to store any newly produced icecream. The message included a request that the applicant make telephone contact to see if there was any work available.
On the following day, Thursday, 17 August 1995 the applicant did telephone and was informed by Hansford that there was no production on that day; being told also that he should telephone each day to find out if there was any work. There was no call made by the applicant on Friday, 18 August 1995 or Saturday, 19 August 1995. However, on Monday, 21 August 1995 he again telephoned Hansford and it was a result of this discussion that he formed the view that his employment had been terminated.
In his evidence-in-chief it was asserted generally by the applicant that the lastmentioned discussion centred around Hansford telling him that he had not been “100% loyal to the company and because of that he (Hansford) put me on - on this, where I have to ring every day to find out whether there is work for me or not”. The applicant alleges that he denied that he was not 100% loyal because he had often stayed longer and had worked when he was sick. Because of this discussion he alleges that he, “knew straight away if I rang there would be no work” and after forming this view he made no further calls to his employer; instructing his solicitors to issue this application which was filed on Wednesday, 23 August 1995 alleging unlawful termination of his employment.
In cross-examination the applicant expanded on the matters discussed during the abovementioned telephone conversation. The applicant agreed that in the course of the telephone conversation he asked Hansford why he had been “sacked”, in response to which question Hansford informed him that he had not been sacked; his name still being on the list of employees to attend the respondent’s premises and work for the respondent. He did deny, however, that Hansford mentioned a lack of production at that time and lack of or limited freezer space. Notwithstanding this denial he then agreed that it was possible Hansford had also referred to limited production at that time of the year as well as the applicant’s failure to remain at the factory to assist on 16 August 1995. These matters being the basis for Hansford feeling obliged to give whatever work there was to the other casual employees who had remained to assist.
Insofar as there is any real departure in the evidence given regarding the conversation with Hansford, it relates to what the applicant allegedly said to Hansford after Hansford had made the abovementioned statements. It was alleged by Hansford that the applicant responded to his explanation by saying, “fuck you” to which Hansford replied, “thanks very much” and hung up the telephone. The applicant denied saying those words.
I found the applicant’s denial unconvincing in all the circumstances. It is clear that he was unhappy during the course of the conversation with Hansford, feeling that he was being unjustifiably penalised in the distribution of the much depleted workload because of his failure to remain to assist the respondent during an emergency. It was his interpretation of Hansford’s behaviour that what Hansford was really saying was that there was no work for him in the future and was in fact sacking him. In these circumstances it is more likely than not that he did respond angrily and following that call never rang the respondent again to seek employment even though he accepts that Hansford reiterated that offer during their exchange on 21 August 1995.
Both Hansford and Pitcher gave evidence that the freezer which had caused the significant reduction in production and had led to the laying off of other employees, although not all of the employees, was not fully operational until the middle of the week following the breakdown on 16 August 1995. In other words, the production in the factory was affected well beyond Monday, 21 August 1995 when the applicant had decided that he had been sacked. Indeed, on their evidence it seems that the application filed in this Court alleging that his employment was unlawfully terminated may in fact have been filed before the freezer was fully operational and production had returned to normal.
In determining whether there has been termination at the initiative of the employer the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (unreported, No. NI 2571 of 1995, 28 November 1995), identified this expression as being a reference to a termination brought about by an employer which is not agreed to by the employee and further stated that an important feature of the alleged termination at the initiative of the employer is “... that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did the employee would have remained in the employment relationship.” (See page 10 of the Court’s decision).
In his recent decision in Anne Rheinberger v Huxley Marketing Pty Ltd (unreported NI 2064R of 1995, 16 April 1996), Moore J interpreted the observations of the Full Court in the Mohazab case in the following way:
“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”
In the present case the evidence before the Court fails to establish on the balance of probability that there was any intention on the part of the employer to bring the employment to an end or that on any reasonable view of the evidence the probable effect of, for instance, actions in allocating what work there was to casual staff who had remained to assist during the emergency would have the effect of bringing the applicant’s employment to an end or the cessation of his employment was the probable result of Hansford’s conduct. What the evidence does suggest is that the applicant acted precipitously; the effect of his actions being that he either resigned or abandoned his employment.
At hearing the applicant sought to rely on evidence that, following conciliation, agreement was reached for him to recommence his employment with the respondent on 25 September 1995. On his attendance at work, he was met with a request from the employer that he sign certain documents amounting to an employment agreement with some variation to the terms and conditions of employment he enjoyed prior to the alleged termination. The case was not run on the basis that there had been a settlement of the action and that there was any breach of any term of settlement. I permitted evidence to be given during hearing of matters relating to the purported return to work and the further breakdown of the relationship allegedly because of the employer’s request that the applicant enter into a written employment agreement, to deal with the question of mitigation of the applicant’s loss should the applicant have succeeded in discharging the initial burden of proof. Clearly the offer of a return to work and any circumstances preventing that from occurring are relevant to any award of compensation if the circumstances of the case justify the Court making such an order. (See the decision of Madgwick J in Maria Teresa Bechara v Gregory Harrison Healey and Co, (unreported NI 1129 of 1994, 19 April 1996)).
In view of my findings, the order the Court makes is that the applicant’s application is dismissed.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The applicant’s application is dismissed.
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 eight (8) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate: ........ ........ ........ ........ ........
Dated: 10 May 1996
Solicitors for the Applicant: McDonald & Charman
Appearing for the Applicant: Mr Alan McDonald
Representative for Respondent: Mr Simon Hansford
Counsel for the Respondent: Mr P. Ginnane
Date of hearing: 22 April 1996
Date of judgment: 10 May 1996
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