Steven John Sharp and Matrik Structures: a division of Matrik Holdings

[1994] IRCA 59

INDUSTRIAL RELATIONS COURT

OF AUSTRALIA  NI No. 383 of 1994

SYDNEY DISTRICT REGISTRY  

BETWEEN:

Steven John SHARP
  Applicant

AND: 

MATRIK STRUCTURES:
A DIVISION OF MATRIK HOLDINGS
  Respondent

MINUTES OF ORDER

12 October 1994  Tomlinson, JR

THE COURT ORDERS THAT:

1. That the application made under Section 170 EA of the Industrial Relations Act 1988 be dismissed.

NOTE:   Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  NI No. 383 of 1994
SYDNEY DISTRICT REGISTRY  

BETWEEN:

Steven John SHARP
  Applicant

AND: 

MATRIK STRUCTURES:
A DIVISION OF MATRIK HOLDINGS
  Respondent

Reasons for Judgement

12 October 1994
TOMLINSON JR

The applicant Steven John Sharp under Section 170 EA of the Industrial Relations Act 1988 (“the Act) claimed:

1.(a) an order declaring the termination of his employment to have contravened Division 3 of Part VI A of the Industrial Relations Act 1988.

(b)     reinstatement

(c)     compensation.

2.Such are the orders as would put the employee in the same position (as nearly as can be done) as if the employment of the employee by the respondent had not been terminated.

3.      costs.

4.an order seeking leave for extension of time to file and serve this application. 

The application for Leave to Proceed out of time was granted by consent when the matter was dealt with on the 11 August 1994 by Linkenbagh J. R.

The applicant Steven John Sharp is a qualified sheet metal worker who in 1986 was involved in an accident causing the amputation of one leg just below the knee.  As a result the applicant has a prosthetic leg.  The applicant commenced working as a sheet metal worker in about March 1994 as a casual employee working full time hours.

It was common ground between the parties that initially the job of the applicant included:

(a)     metal work with aluminium including welding.

(b)     project installation work on site.

(c)     assembling domestic sky lights.

In June 1992 the applicant was upgraded to a full time permanent employee and in approximately June 1993 the domestic sky light market declined and the respondent took on work for Polyfloor, a vinyl wholesaler.  The duties of the applicant thereafter included storeman work for the vinyl business of Polyfloor for a short period.  It is probable that if it had not been that Polyfloor could utilise the services of the applicant and pay part of his wages on a pro rata basis, the respondent may have been forced in September 1993 to consider seriously the future employment of the applicant. 

In his affidavit dated 25 August 1994 the applicant stated that from November 1993 he took over as project supervisor and as part of his duties he arranged for the respondent to employ casual workers, one of those workers being Richard van Garlen. 

The applicant stated that in about April 1993 (sic) he learnt from conversations with another employee and the respondent director Mr. Bryce Downes that the lease on the Kings Park premises had expired and that the factory premises were to be moved.  The applicant further outlined a conversation he had with Mr. Downes indicating that the new director of the respondent, Mr. Tom Westcott had indicated that the respondent could not take the risk of the applicant sustaining personal injury through climbing on roofs installing sky lights. 

The applicant stated in his affidavit that on the 4 May 1994 Mr. Bryce Downes advised to the effect:

“You know that we are going to be moving out of here at the end of June.  As the vinyl has shut down, there is no more storeman’s work and you are a storeman.  I am giving you a week’s notice.”

The applicant replied that he had never just been a storeman and that the respondent was well aware of all the work that  he had been doing in the workshop and on the installation sites.  Conversation ensued concerning the safety risk of having the applicant climb on installation sites.  The applicant stated that the respondent then offered the applicant a few months work as a casual employee until the company moved premises. 

In his affidavit the applicant stated he replied to the effect:

“O.K. but I want to be paid at the rate that I am currently getting.”

The applicant deposed that the respondent agreed.  The applicant stated that he worked the following week and on Wednesday 11 May 1994 he received his last pay cheque for one week’s as a permanent employee.  Further that he was paid an amount for three and a half weeks holiday pay that was due.  On Thursday 12 May 1994 the applicant worked as a casual employee.  Subsequently a conversation ensued between the applicant and Mr. Downes concerning the rate of pay:

“O.K. then I can’t afford to stay working with you.  Pay me for today and we will leave it at that.”

The applicant advised that on about 23 May 1994 Mr Bryce Downes telephoned him and asked him if he would do some casual work and that the next day Mr. Downes rang back and advised:

“We won’t be needing you after all.”

In cross examination the applicant agreed that in December 1993 he had a conversation with Mr. Downes wherein the planned move of the factory to the Crows Nest/Artarmon area was discussed. 

The applicant could not recall stating to the respondent at that time that as he lived in Lalor Park that he would not be prepared to travel to work that far from his home.  Mr. Downes in an affidavit dated 31 August 1994 stated the respondent’s business was sold in September 1993 and from that time onwards the applicant also worked as a storeman for the sub-tenant Polyfloor as well as for the respondent.  Further, that at no time did the applicant work as a Project Supervisor.  In December 1993 Mr. Downes stated that he told the applicant that the respondent would be moving it’s premises to Artamon.  To this the applicant replied that he would not be relocating with the business if the factory moved to that area as he lived in Lalor Park and he did not want to travel so far to work every day.

Mr. Downes further stated that in December 1993 the other director of the respondent, Mr. Tom Westcott told him that he similarly had had a conversation with the applicant.  Mr. Downes concluded that the applicant was put on notice of the factory moving premises on December 1993.  Similar evidence was placed before the court that the applicant was advised of the move of the respondent again in March 1994.

In March 1994 Mr. Downes stated that the applicant gave the directors notice that he would not be continuing with the company after the 30 June 1994. 

Upon examination Mr. Downes agreed with the suggestion that he and the applicant held differing views as to the rate at which the applicant was to be after his permanent employment ceased on 11 May 1994.  It was common ground that the applicant on 12 May 1994 returned to work for the respondent as a casual employee.  Contrary to the evidence of the applicant, the respondent Mr. Downes advised that up until February 1994 an employee Mr. Bob Michele had been the site supervisor and that after that time this position was filled by Mr. Richard van Garlen.  Mr. van Garlen was a qualified steel welder.  Mr. Tom Westcott the other director of the respondent company, stated to the court that from the beginning he had been aware of the physical impairment of the applicant and further that he was not happy with the idea that the applicant on occasion would visit installation sites and climb upon structures to a height of some eight metres from the ground.  In relation to the forthcoming factory move Mr. Westcott stated that just prior to Christmas 1993 he had a conversation with the applicant who indicated that the cost of the travel and the time it would take made it impossible for the applicant to move that close to Sydney.  Further, Mr. Westcott stated:

“I mean, everyone knew there was a big lease sign on our factory out at Blacktown.  Everyone knew that it was certainly my intentions to move the company to the CBD area.”

Mr. Westcott stated that a final decision as to where to move the factory was not made until April 1994.

Having considered all the facts of this case I find that the applicant resigned and that this was a decision taken voluntarily by him when he learnt that the respondent was moving closer to the CBD.  The reasons that the applicant had for not moving with the respondent employer were that it was too far for him to travel and would take too much time.

I find that after the applicant’s permanent employment ceased there was casual work offered him with the respondent and further that the applicant did not avail himself of that opportunity of work.

Contrary to the suggestion of the solicitor of the applicant, I find that the decision to move the factory was made in 1993 and that those plans were finalised when the lease was signed in 1994.

I find that the applicant began work with the respondent as a casual employee and was subsequently made a full time employee.  In his present employment the applicant is employed on a casual basis and has recently been awarded a pay rise.  This court heard no evidence that the applicant is prevented from altering his employment status to that of a permanent employee and it appears that the offer of work with the current employer is firm and on a casual full time basis - that is, the same basis on which the employee stated work with the respondent.

It is noted that the applicant failed to recall the conversations each of the respondent directors stated that they had with him in December 1993 advising him of the forthcoming move. 

COURT:                   E. J. Tomlinson, Judicial Registrar

PLACE:  Sydney

DATE:                     12 October 1994

MINUTES OF ORDER

The court orders that the application made under Section 170 EA of the Industrial Relations Act 1988 be dismissed.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgement of Judicial Registrar Tomlinson.

Associate  :          

Date  :          12 October 1994

Appearances:

Counsel for the Applicant      :          Ms. F. O’Loughlin

Solicitor for the Applicant     :          Stephen Blanks & Associates

Counsel for the Respondent   :          Ms. S. Bower

Solicitor for the Respondent   :          Cutler Hughes & Harris

Date of Hearing  :          6 September 1994

Judgement  :          12 October 1994