Schiller and Partridge v Professional Care Services of Australia Pty Ltd
[1996] IRCA 128
•04 April 1996
DECISION NO: 128/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - disability service industry - whether termination at initiative of the employer - whether SPECIFIED PERIOD CONTRACT - REDUNDANCY - whether HARSH, UNJUST OR UNREASONABLE.
Industrial Relations Act 1988 ss 170DE(2), 170EA, 170EE(3)
Fair Trading Act (WA) s 14
Quality Bakers of Australia Limited v Goulding (1995) 60 IR 327
Peter SCHILLER & Alison PARTRIDGE -v- PROFESSIONAL CARE SERVICES OF AUSTRALIA PTY LTD - WI 95/2353 & WI 95/2354
Before: BOON JR
Place: PERTH
Date: 4 APRIL 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 95/2353 & WI 95/2354
B E T W E E N:
Peter SCHILLER & Alison PARTRIDGE
Applicants
A N D:
PROFESSIONAL CARE SERVICES
OF AUSTRALIA PTY LTD
Respondent
MINUTE OF ORDERS
4 APRIL 1996 BOON JR
THE COURT ORDERS THAT:
The respondent pay to each of the applicants the amount of $17,500 within 28 days of the date of this order, by way of compensation for the contravention of Section 170DE.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 95/2353 & WI 95/2354
B E T W E E N:
SCHILLER & PARTRIDGE
Applicants
A N D:
PROFESSIONAL CARE SERVICES
OF AUSTRALIA PTY LTD
Respondent
REASONS FOR DECISION
(Delivered ex tempore - revised from transcript)
4 APRIL 1996 BOON JR
The applicants have applied under Section 170EA of the Industrial Relations Act 1988 for compensation arising out of the alleged unlawful termination of the applicants' employment by the respondent. There is a further claim for damages for an alleged breach of Section 14 of the Fair Trading Act (WA). It is alleged that the employer, in transferring the applicants from Adelaide to Perth, engaged in conduct misleading as to the nature of the business of the respondent. In relation to the claims under the provisions of the Industrial Relations Act, the applicants allege that their termination was harsh, unjust or unreasonable within the meaning of those words in Section 170DE(2).
The respondent says that the termination of the applicants' employment was not a "termination at the initiative of the employer" and alleges that the applicants were employed for a fixed term initial period of three months, after which their contracts were simply not extended. If the Court finds that it was a termination at the initiative of the employer, the respondent says that there was a valid reason for the termination in that the position of both applicants was made redundant, and that the termination was not in all the circumstances harsh, unjust or unreasonable as the applicants were not suitable for the one remaining position in the Perth office of the respondent. It was said that the respondent had no alternative to terminating the employment of the applicants.
BACKGROUND
The applicants, Peter Schiller and Alison Partridge, are married to each other although they have, since their employment with the respondent was terminated, separated. Ms Partridge is a paraplegic and Mr Schiller is a quadriplegic. They have both been wheelchair bound for many years. Each of the applicants has had many years' experience working with various organisations relating to the care of disabled people. It appeared to be common ground that both Mr Schiller and Ms Partridge are well known in the disability industry in Adelaide and that their work with disabled people is highly regarded.
Evidence was given at the hearing that for disabled people who are unable to fully care for themselves without assistance there appear to be three options in relation to their residential arrangements. Firstly, they may live in an institution specifically catering for people with disabilities. Secondly, they may reside at home and be cared for primarily by their families. Thirdly, they may reside in their homes and live an independent life but receive care from professional carers in the disability industry. There are various organisations throughout Australia which receive government funding and which provide various kinds of care for disabled people in their own homes. Evidence was given that there are waiting lists in each state for disabled people requiring such care. The schemes covering the care of disabled people are funded by both federal and state governments.
The evidence was that Mr Schiller and Ms Partridge, prior to their transfer to Perth, received care in their own home in Adelaide of two-and-a-half hours' assistance in the morning and half-an-hour's assistance in the evening. The type of care provided to them included assistance with getting out of bed, showering and having breakfast in the morning, and assistance with getting into bed in the evening. When they left South Australia they had to give up that care and if they were to return to South Australia they would have to go back onto a waiting list for that level of care once again.
Evidence was given by Mr Schiller and Ms Partridge that some years ago they saw a gap in the provision of care for disabled people. The type of assistance then available for people such as themselves who wish to live an independent life was limited to carers coming into their homes between the hours of 9.00 am and 5.00 pm. This meant that unless they asked for the assistance of family or friends, or paid for carers privately, they were restricted to staying in bed until 9.00 am and having to retire in the evening by 5.00 pm.
Mr Schiller and Ms Partridge set up their own company, Professional All Care Services Pty Ltd. Mr Schiller and Ms Partridge were the two directors of that company. At the time that this company was set up there was no such thing as private health care in the sense of a private, profit-making organisation engaged in the brokerage of services for disabled people. The company employed and trained carers for disabled people. The company's customers were disabled or elderly people who required nursing care. Their customers were charged a certain fee per hour depending on the type of care required. The company's performance was measured in the numbers of hours of care provided per week. At its peak, Professional All Care Services sold 2,000 hours of care per week in Adelaide.
In the last few months of operation of Professional All Care Services in Adelaide, the company experienced severe financial problems. Mr Schiller knew Mr Jeffrey Edmond socially and approached him for financial assistance through Frank Du Bois & Associates, investment advisers. Mr Edmond was at that time the office manager for Frank Du Bois & Associates. Mr Du Bois arranged for Mr Peter Mattiske, a financial consultant with Frank Du Bois & Associates, to spend some time with Professional All Care Services to uncover its true financial position. This occurred in July of 1994. Mr Mattiske gave evidence that it took him some months to discover the financial position of Professional All Care Services. He ultimately discovered that the company had a significant amount of debt and was insolvent. The amount of the debt was over $400,000. Mr Mattiske recommended that Professional All Care Services go into voluntary liquidation, and this was eventually done. The two directors of Professional All Care Services, Mr Schiller and Ms Partridge, also became personally bankrupt because of outstanding debts associated with the failure of the business.
Mr Edmond and Frank Du Bois & Associates incorporated a new company, Professional Care Services of Australia Pty Ltd, at around the time that Professional All Care Services went into liquidation. Mr Mattiske was appointed general manager of Professional Care Services. The two shareholders of Professional Care Services were Mr Edmond and Frank Du Bois. Professional Care Services negotiated with the liquidator of Professional All Care to purchase the contracts of Professional All Care's clients. This was done and Professional Care Services commenced operation in Adelaide in November 1994.
It is common ground that at around the time of the liquidation of Professional All Care Services, the federal police raided its business premises in relation to allegations of sales tax exemption fraud relating to another company with which Mr Schiller and Ms Partridge were involved. The federal police were apparently seeking evidence relating to allegations that the directors of Professional All Care Services were involved in the sale of vehicles and other equipment which had been purchased on a sales tax exempt basis. It was alleged that a fee was charged to the purchasers of the vehicles and goods. Mr Schiller and Ms Partridge have both denied any wrongdoing and they have to date not been charged with any offence arising out of those allegations. Neither Mr Schiller nor Ms Partridge has any criminal convictions.
When Professional Care Services of Australia Pty Ltd was established, it employed Mr Schiller as a marketing manager and Ms Partridge as a care co-ordinator. Professional Care Services of Australia was set up to run a business along very similar lines to the old Professional All Care Services' business. Mr Schiller and Ms Partridge were useful employees as they had operated an almost identical business in the past and they each had considerable experience in the field of disability services. They were both well known in Adelaide and had gained some credibility in the disability service industry. Although the board of directors of Professional Care Services included a doctor who had experience in the disability industry, none of the staff who ran the business on a daily basis, apart from Mr Schiller and Ms Partridge and another former employee of Professional All Care Services of Australia, had any previous experience in the disability industry.
The respondent, Professional Care Services of Australia, suffered some setbacks as for various reasons some of the former clients of Professional All Care Services transferred their care to other care providers. Professional Care Services was constantly looking for new business opportunities. Evidence was given that at the time Professional Care Services was established, it was intended to eventually set up offices in each state of Australia. Western Australia and Queensland in particular were seen as potential markets.
The chairperson of directors of the respondent visited Perth and found that the disability industry in Western Australia was going through a privatisation phase. It was decided that Mr Edmond was to organise a feasibility study in relation to setting up a Perth office of the respondent. Mr Schiller, drawing from his personal knowledge of the disability industry, drew up a list of people in the disability services industry in Western Australia who would make useful contacts. He arranged over 30 interviews with various representatives of organisations in Perth.
Mr Edmond and Mr Mattiske flew to Perth in March and each attended about 15 interviews. They returned to Adelaide feeling confident from speaking to industry people that it would be feasible to set up a Perth branch. The confidence of the company's management increased when the company successfully tendered for work with the Stirling City Council. That council had a budget of $1.3 million allocated to the provision of care for disabled and elderly people. Professional Care Services was successful to the extent that it was named as the second preferred provider of care to the City of Stirling Council. Although the City of Stirling did not confirm any particular number of hours of business which it would provide to Professional Care Services, Peter Mattiske estimated that it would amount to about 400 hours per week.
On the basis of the feasibility study carried out by Mr Edmond and Mr Mattiske, the board of directors of Professional Care Services decided to set up a Perth branch. Mr Mattiske's evidence was that he became aware, from discussions with Mr Schiller, that Mr Schiller himself was interested in applying for a transfer to Perth. Mr Mattiske's evidence was that he had some concerns about Ms Partridge being "steamrolled" into a move to Perth and he asked Mr Schiller to go home, discuss the matter with Ms Partridge, and prepare a written expression of interest. Mr Schiller's evidence was that he was very keen to move to Perth because he saw it as an opportunity to leave his failed business venture behind him and get away from the embarrassment he had suffered as a result. Further, there was to be a bonus scheme put into place at the Perth office and he saw it as a way of recouping some of his losses.
Ms Partridge's evidence was that she did not want to move to Perth as she was established in Adelaide. She received care from someone she trusted, her daughter and grandson lived in Adelaide and her elderly parents also lived in Adelaide. After some persistence on the part of Mr Schiller, however, she saw that the move would be good for him and decided to support him. Mr Schiller prepared an expression of interest which was signed by both Mr Schiller and Ms Partridge and submitted it to the board of the respondent. The management of Professional Care Services were never made aware that Ms Partridge was extremely reluctant to move to Perth.
During April and May 1995, negotiations took place between Mr Schiller, Ms Partridge and Professional Care Services for the transfer of Mr Schiller and Ms Partridge to Western Australia. Mr Edmond gave evidence that as far as the board was concerned, the agreement was to be that there was an initial three month contract to be offered to Mr Schiller and Ms Partridge. Mr Edmond himself did not speak to the applicants about this. Mr Mattiske gave evidence that Mr Schiller was unhappy about what he said was a three month probationary period after already having served six months' probation when he first started with Professional Care Services. Mr Mattiske said that the terms of the offer from the board were not negotiable. The terms of appointment, as far as Mr Mattiske was concerned, were contained in a letter from himself to Mr Schiller and Ms Partridge. The relevant part of the letter states:
"The approved salary for both of you will remain unaltered (ie $35,000 pa each) for the initial three month period and these salaries will be subject to review at the end of the first quarter of trading in Perth.
The initial probationary period for your employment in Perth will represent three months and again your individual performances will be reviewed at the end of the first quarter of trading."
Mr Mattiske referred to this part of the letter as being somewhat ambiguous and he said he made it clear verbally to both applicants that it was to be a three month appointment.
Both Mr Schiller and Ms Partridge gave evidence that what was being offered to them was a transfer to Perth with a three month probationary period similar to the six month probationary period they had already served in Adelaide. After serving with the respondent for the first six months, their employment had continued without any formal written notification to that effect.
Although there was some question in Mr Schiller's and Ms Partridge's minds about whether or not the letter dated 29 May 1995 contained the terms of the final agreement between the parties relating to the transfer to Perth, Mr Mattiske's evidence was that he made it clear that the terms set out in the letter were not negotiable.
On 19 June 1995, Mr Schiller and Ms Partridge were transferred from Adelaide to Perth. The respondent gave them an initial period of one week's paid leave to enable them to find accommodation in Perth. The respondent paid for their Adelaide carer to fly to Perth with them and help them become established. They had some difficulty locating suitable accommodation and this period was stressful, particularly for Ms Partridge. The total relocation costs for the two applicants were said to amount to approximately $9,000.
It was agreed that Mr Schiller and Ms Partridge were to commence work in Perth at 9.00 am on 26 June 1995. The official opening date for the Perth office was 3 July 1995. Mr Mattiske was flown to Perth to act as general manager of the Perth office. Mr Schiller was marketing manager and Ms Partridge was care co-ordinator. At the time the Perth office was opened it was intended that Mr Mattiske would remain in Perth for a period of only three months to help establish the new office and find a suitable local person to take over the management duties. By all accounts, Mr Schiller and Ms Partridge worked extremely hard in setting up the Perth office. The respondent has never questioned their commitment or criticised their performance.
The Adelaide office of Professional Care Services produced a target budget for the Perth office. This budget estimated hours sold to customers to range from 30 in July 1995 to 200 in August and 1,000 by December 1995. Mr Schiller informed the company that the proposed budget was unrealistic and unattainable in the short term. His evidence was that it took a considerable amount of time to gain credibility in the disability services industry and that private enterprise in particular was viewed with distrust. He said that he expected the number of hours sold to be very low at first and to increase gradually only after repeated canvassing of prospective clients.
Unfortunately, the Perth branch of the company did not perform anywhere near as well as had been anticipated by management. The company experienced heavy losses. According to Mr Mattiske, it was evident from early on that the company couldn't maintain the Perth office unless it gained a substantial increase in the number of hours of care sold. Mr Mattiske said that he had regular meetings with Mr Schiller and Ms Partridge at which they discussed the office's position. According to Mr Mattiske, by this time he had become close friends with both Mr Schiller and Ms Partridge and they would sometimes discuss what might happen in the future, although this was done on a social basis.
Mr Edmond gave evidence that he came to Perth in September 1995. He spoke to the applicants on or about 6 September 1995. He had been instructed by the board to make it clear to everyone in the Perth office that the company could not sustain the losses. Mr Edmond said that he made it clear to both Mr Schiller and Ms Partridge that their jobs were in jeopardy. Ms Partridge was in tears during the conversation. Although the applicants were clearly warned in September that their jobs were in jeopardy, there was no ultimatum issued and there appears to have been no discussion regarding alternatives if the Perth office couldn't be maintained with its staff of three people.
During September the Perth office continued to make a loss, although the number of hours sold did slowly increase. One of the main problems was that although Professional Care Services had successfully tendered for the City of Stirling contract, the actual workload it obtained from that source was far lower than had been anticipated.
The board of the respondent met on 28 September 1995. It passed a resolution that:
"due to the inability of the Western Australian operation to achieve budget and become financially viable within the foreseeable future that the employment contracts of Peter Schiller and Alison Partridge are now due to expire will, regretfully, not be renewed. The secretary was instructed to advise Mr Schiller and Ms Partridge that their efforts have been appreciated and the directors are disappointed that the volume of hours anticipated have not materialised into chargeable hours."
Mr Edmond gave evidence that the board would have liked to have closed the Perth office, but as part of the tender to the Stirling City Council, both directors had guaranteed a service to the clients for two years. The company needed to maintain the Perth office for this reason. In addition, they had around 70 clients in Perth by this time who needed care. It was not the type of business that the company could leave without notice as the people who needed care would effectively be left stranded. Mr Edmond gave evidence that the board did consider in September 1995 whether one or both of the applicants could be appointed to the one person operation in Perth. Mr Edmond said a number of factors led the board to decide not to do so. These included the historical performance of the applicants in their own company plus the possible fraud charges. Mr Edmond said there was "a huge difference between Mr Schiller and Ms Partridge being employees as opposed to the head of the Perth operations". The board was concerned that if Mr Schiller or Ms Partridge were eventually to be charged with fraud, it would look bad for the company if that type of person was managing the Perth office. In addition, Ms Partridge had always conceded that she was not the type of person to be able to manage the business by herself. Her strength lay in co-ordinating. This was confirmed by Ms Partridge at the hearing.
Mr Edmond telephoned Mr Mattiske on Friday, 13 October 1995. He advised Mr Mattiske of the resolution of the board and said that notice was to be given to the applicants by Mr Du Bois in person on the following Wednesday. Mr Mattiske however, because of his friendship with both of the applicants, asked that he be permitted to break the news to them instead. This was done on Monday, 16 October. Mr Schiller and Ms Partridge were each given two weeks' notice of termination to take effect from the following Wednesday, 18 October 1995. It was resolved by the company to employ a new person to carry out the three tasks of management, marketing and co-ordination. During her final period of employment, Ms Partridge trained the new appointee, Mr Danny Woodham, in the co-ordination aspects of the job.
Mr Schiller and Ms Partridge both gave evidence that the notice of termination came as a shock to them. Mr Schiller was of the view that they should have been given more time in which to establish the business. He was also of the view that he was the person who should have been appointed in place of Mr Woodham, who apparently had no previous experience in the disability service industry. Ms Partridge was extremely distressed as a result of having her employment terminated. She described co-ordinating as being her "life" and said that she had earlier offered to work for half time rates in return for doing a full week's work.
Both Mr Schiller and Ms Partridge felt that they had been treated extremely unfairly, particularly as they had worked exceptionally hard and had put in far more hours of work than they were actually paid for. It was insulting to be terminated suddenly and to have an inexperienced person taken on in their place.
The evidence was that Mr Woodham was trained by Mr Mattiske, who was unable to leave the Perth office until January 1996. Mr Mattiske was asked to resign as general manager and has since returned to a position with Frank Du Bois & Associates.
WAS THE EMPLOYMENT TERMINATED AT THE INITIATIVE OF THE EMPLOYER?
It is the respondent's position that the applicant's contract of employment expired by effluxion of time as they had only been appointed for a three month period. It is my view that the evidence does not support this proposition. Although it was suggested that the letter of 29 May 1995 was in its terms ambiguous and needs to be interpreted in light of the oral evidence of Mr Mattiske, I find that there was nothing ambiguous about it. The letter of 29 May 1995 appointed the applicants to their positions and imposed a three month probationary period based solely on their performance. It was not expressed to be a fixed term contract which expired after three months. The sole criterion was the performance of the applicants, and refers to their individual performances being reviewed "again" at the end of the first quarter of trading. The word "again" in that letter obviously refers to the six month probationary period to which the applicants had been subjected when they first started work with the respondent in Adelaide. Once the applicants were transferred to Perth, their new positions started on Monday, 26 June 1995 and they continued to work beyond the three month period which expired on 26 September 1995. As was the case with their initial appointment in Adelaide, the probationary period came and went and the applicants continued to work. They were not given notice of termination until 16 October 1995.
Further, the respondent's contention that the appointment was to be for a period of three months only is inconsistent with the fact that the respondent's directors had given personal guarantees to keep the service open for two years. Mr Schiller and Ms Partridge both gave evidence that they expected to be in Perth for at least two years.
In these circumstances, I consider that the employment of the applicants did not expire by effluxion of time and that their employment was terminated at the initiative of their employer.
WAS THERE A GENUINE REDUNDANCY?
Counsel for the respondent has submitted that there was a valid reason for the termination based on the operational requirements of the respondent's business. It was said that this was a case of genuine redundancy and the decision to terminate the employment was based on the financial position of the respondent and, in particular, on the fact that the respondent was suffering a loss of between $13,000 and $20,000 per month associated with the Perth office. It was said that the respondent, in the interests of its clients, rather than closing the Perth office decided to restructure and to employ only one person at the Perth office.
Counsel for the respondent referred this Court to a number of decisions in other jurisdictions relating to the meaning of redundancy. It was submitted that a redundancy occurs wherever an employer no longer wishes to have a particular job done. I indicated that a similar approach had been taken in this Court. I referred to the decision of Quality Bakers of Australia Limited v Goulding (1995) 60 IR 327 where her Honour Justice Beazley said at page 332:
"A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs."
In my opinion, in this case there was sufficient evidence to establish that there was a genuine redundancy based on the operational requirements of the business, namely, the fact that the Perth office of the respondent was losing a substantial sum of money each month and wished to amalgamate the three Perth jobs into one position.
WAS THE TERMINATION HARSH, UNJUST OR UNREASONABLE?
It was submitted on behalf of the respondent that the termination of the applicants could not be said to be harsh, unjust or unreasonable. It was said that the applicants were very keen to come to Perth and that they knew and accepted the risk that the business may not be successful. It was submitted that the Court must not take into account the consequences to the applicants as a result of their disabilities as they were "two experienced players who knew better than anyone what the consequences would be" if the business failed. Counsel submitted that this Court cannot rely on the fact that it will now be difficult for the applicants to return to Adelaide because of the waiting lists for care in deciding whether or not the termination was harsh, unjust or unreasonable. Further, it was said that the applicants were consulted in that Mr Edmond told them in September that their jobs were in jeopardy if the losses continued. It was said that the Court has to approach the matter by looking at all of the aspects of the termination and balancing the interests of both parties concerned. Counsel suggested that the only other option was the closure of the Perth office. The respondent determined that the applicants were not appropriate people to conduct the respondent's operations at the Perth office and it was submitted that there was nothing else the respondent could have done.
I do not agree that the respondent engaged in anything that could be described as adequate consultation with the applicants in relation to this matter. The applicants were warned by Mr Edmond in early September 1995 that their jobs were in jeopardy if the company's losses continued. Mr Mattiske advised them of the losses the company was making and had informal discussions on a social basis relating to what the future might hold for the three of them. The applicants were never given any opportunity to have any input at all into what may be the best approach to be taken by the company. Her Honour Beazley J said at page 334 of the Quality Bakers' decision that:
"Even in the case of a genuine redundancy, the termination of employment of a particular employee may be harsh, unjust or unreasonable. ... A failure to consult with an employee or union about the issue of redundancy may mean a termination on that ground is harsh, unjust or unreasonable ... A termination may also be harsh, unjust or unreasonable because the employee may have been, but was not, offered suitable alternative employment with the employer ... The need for consultation with employees and, if applicable, the employee's union, in the case of workplace change or restructuring, has consistently been recognised as an essential element of fairness in the relationship between employee and employer."
In this case, the respondent established its business in Adelaide with a great deal of assistance from the applicants. Not only did the applicants have a thorough knowledge and understanding of the disability industry, but it is my view that the respondent sought to gain some credibility in the industry by employing the applicants. This is illustrated by a corporate profile of the respondent dated June 1995 which sets out under the heading "History of Professional Care Services (PCS)":
"The history of Professional Care Service having acquired the business contracts of Professional All Care Services Pty Ltd spans back to 1990 when it was originally founded as the first private for profit organisation of its type in South Australia.
Two consumers, a quadriplegic and a paraplegic, having experienced the shortfalls in care provision at the time perceived a need for a 'client choice' and consumer driven service that could be relied upon 24 hours each day of the year.
This original motivation has not been lost and continues to be the prime focus of the organisation. In fact, the founders of the private care industry remain in the company enjoying executive positions and regularly offer sound advice on the often changing needs of consumers."
Upon the transfer of Mr Schiller and Ms Partridge to Perth, they were once again heavily involved in contacting and meeting with members of the disability industry in this state. It appears that they put in an extraordinary effort in establishing a profile for the company in Perth. The fact that Mr Schiller and Ms Partridge are themselves wheelchair bound no doubt improved the credibility of the respondent company in its operations in Perth.
Although I accept that Professional Care Services had a need to restructure or cut back its operations in Perth, I consider it harsh, unjust and unreasonable that the company did not consult with either of the applicants when it decided that they were not suitable for the Perth position on the basis of their history with Professional All Care Services. Further, it is apparent that no alternatives were considered. They did not consider transferring either of the applicants back to the South Australian office as, in the words of Mr Edmond, it would be "too expensive". By this time it was well known to Peter Mattiske, and quite probably other members of the respondent's management, that Ms Partridge was finding it extremely difficult to settle in Perth. The termination of her employment has left Ms Partridge "devastated" and her main aim now is to return to South Australia. Her marriage has ended as a result of the stress she has suffered. It was Ms Partridge's evidence that she cannot now afford to return to South Australia.
By all accounts, much of the financial management of the respondent's Perth office was handled in Adelaide and it is difficult to see why Mr Schiller could not have been accommodated instead of introducing and training a person who had no experience at all in the disability industry.
I find in all of the circumstances that the termination of the applicants' employment was harsh, unjust or unreasonable within the meaning of the words in Section 170DE(2) of the Act.
THE CLAIM UNDER THE FAIR TRADING ACT
The respondent has pointed to the fact that the negotiations leading up to the transfer of the applicants to the Perth office were conducted in Adelaide. It is said that this Court has no jurisdiction to deal with the claim under the Western Australian Fair Trading Act for that reason. I consider that even if there is jurisdiction for this Court to hear that claim, the applicants have not discharged the burden of proof in that matter. There is simply insufficient evidence upon which this Court could find that the applicants were induced to move to Western Australia by misleading conduct on the part of the respondent's management. The respondent invested heavily in the establishment of the Perth office and the two shareholders gave personal guarantees to the City of Stirling. This was the conduct of an employer which genuinely believed that there were good prospects for the business in Perth. That part of the applicant's claim is accordingly dismissed.
THE APPROPRIATE REMEDY
Although the legislation makes it clear that the primary remedy for a breach of the Industrial Relations Act is intended to be reinstatement, there is power to order payment of compensation if reinstatement is impracticable and if the Court thinks it appropriate in all the circumstances to do so. In this case, neither Mr Schiller nor Ms Partridge is seeking reinstatement. Because of this, and also because the respondent has effectively abolished the positions of both of the applicants, I consider that to order reinstatement would be impracticable. Despite the submissions of the respondent's counsel to the contrary, I consider it is appropriate in all of the circumstances of this case to make an order for payment of compensation. The disabilities of the applicants, which were well known to the respondent, puts them in an unenviable position in the job market. Although both Mr Schiller and Ms Partridge are well known in the disability industry in South Australia, they are not well known in Western Australia. Mr Schiller is presently unemployed. Ms Partridge has not found suitable alternative employment as she wishes to work as a co-ordinator. She has been able to obtain some part-time casual teaching work in the area of care and health. Her hours are not consistent. Because of their disabilities, it would appear that the job prospects of Mr Schiller and Ms Partridge are severely limited. Under Section 170EE(3) in working out the amount of the compensation, the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment. The amount of compensation must not exceed six months' remuneration. Both Mr Schiller and Ms Partridge received salaries of $35,000 per annum. If their employment had not been terminated it is likely that they would have remained employed at that salary, either in the Perth office or in the South Australian office of the respondent. In these circumstances, I consider it appropriate to make an award for payment of compensation of $17,500 in respect of each of the applicants.
I certify that this and the preceding nineteen (19) pages
are a strue copy of the reasons for decision of
Judicial Registrar Boon as recorded in the transcript
and revised by the Judicial Registrar
Associate:
Dated:
APPEARANCES
Counsel appearing for the applicant: Mr A Hocking
Solicitors for the applicant: Wojtowicz Kelly
Counsel appearing for the respondent: Mr G Manos
Solicitors for the applicant: Manos & Associates
Dates of Hearing: 18 & 19 March 1996
Written submissions complete: 4 April 1996
0
1
0