Struthers v Clarklift WA Pty Ltd - [1996] IRCA 272

DECISION NO:   272/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - ABSENTEEISM - whether VALID REASON - PROCEDURAL FAIRNESS - COMPENSATION.
Industrial Relations Act 1988 Ss 170DB, 170DB(1)(b), 170DC, 170DE, 170EA, 170EE, 170EE(5).
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199, 57 IR 50.
Bean v Milstern Retirement Services Pty Ltd IRCA No. 248 of 1995, Moore J, 2 June 1995, unreported
David Hopewell STRUTHERS -v- CLARKLIFT WA PTY LTD
WI 2587 of 1995
BEFORE:       R. D. FARRELL JR
PLACE:          PERTH
DATE:            19 April 1996
IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA                   )
WESTERN AUSTRALIA                )
DISTRICT REGISTRY  )         No. WI 2587 of 1995
BETWEEN:  David Hopewell STRUTHERS
  -         Applicant
AND:  CLARKLIFT WA PTY LTD
               -         Respondent
MINUTE OF ORDERS
BEFORE:               R. D. FARRELL JR
PLACE:                  PERTH
DATE:  19 April 1996
THE COURT DECLARES AND ORDERS THAT:
1. The termination of the employment of the Applicant contravened Sections 170DB and 170DC of the Industrial Relations Act 1988 (“the Act”).
2. The Respondent shall pay compensation to the Applicant in the sum of $5,417.25 pursuant to Section 170EE(3) of the Act.
3. The Respondent shall pay damages to the Applicant the sum of $1805.75 pursuant to section 170EE(5) of the Act.
4.         The Respondent shall pay to the Applicant in the sum of $650.00, being unpaid commission, within 14 days of the date of this order.
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
WI2587 of 1995
BETWEEN:
David Hopewell STRUTHERS
Applicant
AND:
Clarklift WA Pty Limited
Respondent
REASONS FOR DECISION
(Delivered ex tempore - revised from transcript)
19 April 1996  R. D. FARRELL JR

This is an application under section 170EA of the Industrial Relations Act 1988 (“the Act”) for compensation arising from the allegedly unlawful termination of the employment of the applicant, Mr David Struthers (“Mr Struthers”) by the respondent, Clarklift WA Pty Ltd (“Clarklift”). I am satisfied that reinstatement is impracticable, and it was not sought.

Mr Struthers also claims that he is due payment for notice, no notice having been paid on his termination as is required by section 170DB. Mr Offer, who appeared for Clarklift, says in response that this case falls under section 170DB(1)(b); he alleges the employee was guilty of serious misconduct, such that no notice was payable.

In addition, there was a claim for unpaid commission, which the parties were able to agree in the course of the hearing, so I will order that Clarklift pay to Mr Struthers the sum of $650 within 14 days of today, that being the amount of commission which it has been agreed was due to Mr Struthers as a compromise of that claim.

Findings of Fact

Mr Struthers was originally employed on 27 June 1994 as Service Manager with Clarklift. Initially, his job involved responsibility for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] IRCA 272
Decision Date: 19 Apr 1996

CaseChat Overview and Summary

In the case of Struthers v Clarklift WA Pty Ltd, David Struthers brought an application under section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of his employment by Clarklift WA Pty Ltd. Struthers contended that the termination contravened sections 170DB and 170DC of the Act and sought compensation for the failure to provide notice of termination and for procedural unfairness. The central issue was whether Struthers' termination was lawful, particularly in light of his alleged failure to notify the company of his absences as required by a prior warning.

The court examined the nature and frequency of Struthers' absences from work, Clarklift's warnings and communications regarding these absences, and the consequences of Struthers' conduct on the company's operations. The court found that Struthers' absences, particularly his failure to notify the company of his absences as required by the warnings, constituted a valid reason for dismissal. However, the court also determined that Clarklift failed to provide Struthers with an opportunity to defend himself against the specific allegation of failing to notify, as required by section 170DC of the Act. Consequently, the court held that Struthers was entitled to compensation for the breach of procedural fairness.

The court ordered that Clarklift pay Struthers compensation in the amount of $5,417.25 for the breach of section 170DC and damages in the amount of $1,805.75 for the failure to provide notice of termination. Additionally, Clarklift was ordered to pay Struthers $650 for unpaid commission. The decision underscored the importance of adhering to procedural fairness in the termination process and the consequences of failing to do so.

Orders