Scott Bruce Webb v Baillie Pty Ltd

[1995] IRCA 604

C A T C H W O R D S

INDUSTRIAL LAW -TERMINATION OF EMPLOYMENT-WHETHER APPLICANT’S EMPLOYMENT TERMINATED BY THE RESPONDENT

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

SCOTT BRUCE WEBB -V- BAILLIE PTY LTD

No. SI95/1119

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  26 OCTOBER 1995

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI95/1119

B E T W E E N:

SCOTT BRUCE WEBB

Applicant

AND

BAILLIE PTY LTD

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  26 OCTOBER 1995

THE COURT ORDERS THAT:

.          The 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  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI95/1119

B E T W E E N:

SCOTT BRUCE WEBB

Applicant

AND

ROLFE & BAILLIE PTY LTD

Respondent

BEFORE:                 JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  26 OCTOBER 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement.

The Applicant was employed as a painter by the Respondent from August 1989 until 27 April 1995.  He was employed pursuant to the National Building and Construction Award 1990.  Pursuant to the Award the Applicant was entitled to claim mileage for travelling to and between jobs.  When the Applicant accepted his position with the Respondent in 1989 he understood that he was required to use his own vehicle to transport paint and equipment between jobs.  The Award is silent in relation to the transporting of paint and equipment by painters.  It is clear from the evidence before me that some painters do transport paint and equipment and some do not.

For a period of approximately two years between July 1990 and July 1992 the Applicant was allowed to draw petrol on the Respondent’s account.  The Respondent stopped allowing the Application to do so in about July 1992 because of financial constraints.
On 25 May 1995 the Applicant notified Mr Punko, his supervisor that his car had broken down.
The Applicant had some discussions with Mr Punko to see what arrangements could be made about work and Mr Punko suggested some alternative temporary arrangements.  The following day, 26 April 1995, he spoke to the Managing Director, Mr Craig Rolfe.  A further conversation took place on the 27 April 1995.  The gist of that conversation was that the Applicant should seek other employment if he was unhappy about the existing arrangements.  The conversation became heated.   The Applicant left the Respondent’s premises saying “I’m sacked then”.

Later that day the Applicant telephoned Mrs Hibbard, the pay officer and asked for his “redundancy” payment.  The payment in question was an entitlement pursuant to the Award to which the Applicant was entitled regardless of whether he was dismissed or resigned.  The Applicant told Mrs Hibbard that he was unable to collect the payment the next day as he had a job to do.  Arrangements were made for the Applicant to pick up his pay the next week.

In my view there was nothing in words or conduct of the Respondent witnesses which amount to the termination of the Applicant’s employment.  Nor do I accept that this was a construct dismissal.  The Application had been offered other options by Mr Punko in order for work to be made available to him.  As I have no jurisdiction to deal with a matter where there has been no termination of employment I dismiss the Application.

I certify that this and the preceding  page are a true copy of the reasons for my judgment.

DATE OF HEARING  :          

FOR THE APPLICANT       :          MR M. HARRISON

FOR THE RESPONDENT    :          MS. S. SHAW