Sutton v CAMRUN Pty Ltd T/as R. Singleton Transport
[1997] IRCA 18
•10 Feb 1997
DECISION NO:18/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION of EMPLOYMENT - claim of UNLAWFUL TERMINATION - truck driver - whether termination at initiative of employer - whether VALID REASON - failure to follow instruction - COMPENSATION.
Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) Ss 170DE(1), 170EA, 170EE(3)
APESMA v David Graphics Pty Ltd, unreported, IRCA 410/95, 12 July 1995, Wilcox CJ
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Izdes v Bennett (LG) & Co. Pty Ltd (1995) 61 IR 439
Lupoi v Phillips Fox, unreported, IRCA 485/96, 3 October 1996, Ritter JR
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199
DANIEL RODNEY SUTTON v CAMRUN PTY LTD T/as R. SINGLETON TRANSPORT
WI 1458 of 1996
Before : RITTER JR
Place : PERTH
Date of Judgment : 10 FEBRUARY 1997
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1458 of 1996
B E T W E E N:
DANIEL RODNEY SUTTON
Applicant
A N D:
CAMRUN PTY LTD T/as R. SINGLETON TRANSPORT
Respondent
MINUTE OF ORDERS
10 FEBRUARY 1997 PERTH RITTER JR
THE COURT ORDERS AND DECLARES THAT:
The respondent terminated the employment of the applicant in contravention of section 170DE(1) of the Act.
Subject to order 3, in respect of the contravention of section 170DE(1) of the Act, the respondent is to pay the applicant $16,987.50 within 21 days of the date of this order.
The amount that the respondent is to pay to the applicant in satisfaction of order 2 above is less any sum required to be deducted therefrom by the respondent pursuant to the Income Tax Assessment Act 1936 and actually paid by the respondent to the Commissioner of Taxation with proof thereof to be furnished to the applicant within 21 days.
There be liberty to apply.
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 1458 of 1996
B E T W E E N:
DANIEL RODNEY SUTTON
Applicant
A N D:
CAMRUN PTY LTD T/as R. SINGLETON TRANSPORT
Respondent
REASONS FOR DECISION
10 FEBRUARY 1997 RITTER JR
INTRODUCTION
This is an application under section 170EA of the now called Workplace Relations Act 1996 ("the Act") in relation to the allegedly unlawful termination of the applicant's employment by the respondent. The remedy sought by the applicant was that of compensation. The respondent did not submit that reinstatement was practicable, and did not oppose the applicant's submission that compensation was the appropriate remedy: see section 170EE(2) of the Act.
The applicant was employed by the respondent from 28 September 1995 until 28 June 1996 as an interstate truck driver. His duties primarily involved driving trucks from Perth to Adelaide and return in a round trip that would take about seven days to complete.
Mr Sutton's employment was allegedly terminated by Mr Harry Berkhort, the manager of the respondent's Perth depot, during a telephone call between Mr Berkhort, at the respondent's depot in Kewdale, and the applicant at his home in Helena Valley. The respondent alleged that during this telephone conversation Mr Sutton refused to agree to adjust the brakes of a trailer which was to be attached to a truck he was to drive the following day and further that he refused to drive the truck unless somebody else adjusted the brakes.
The respondent submitted that during this conversation Mr Sutton either effectively resigned from his position or alternatively Mr Berkhort had a valid reason for the termination of his employment, being Mr Sutton's refusal to carry out his duties and/or a refusal to carry out the instruction to adjust the brakes himself and/or drive the truck the following day.
The applicant submitted that his employment was terminated by Mr Berkhort on behalf of the respondent and that there was no valid reason for the termination, thereby constituting a contravention of section 170DE(1) of the Act.
By agreement between counsel, the applicant presented his case first. The applicant gave evidence in support of his application and called as a witness his wife Ms Veronica Sutton, who said that she heard part of the telephone conversation between her husband and Mr Berkhort.
The respondent called as witnesses Mr Berkhort, Mr Ray Sharp and Mr Paul Hughes. Mr Sharp is a former employee of the respondent who drove the truck and trailer in question after the telephone conversation between Mr Sutton and Mr Berkhort. Mr Hughes is and was an employee of the respondent who had driven a truck with the trailer in question attached from Adelaide to Perth, prior to Mr Sutton being asked to drive the vehicle on 28 June 1996.
The major issues are whether there was a termination of the applicant's employment by the respondent and if so whether the termination contravened section 170DE(1) of the Act.
THE FACTS
Mr Sutton has worked as a truck driver both intrastate and interstate for approximately 13 years. He does not have any qualifications as a mechanic.
Mr Sutton commenced employment for the respondent on 28 September 1995. Mr Sutton said in evidence that it was not part of his duties as a driver to perform mechanical repairs to the truck that he drove. Mr Sutton said that there were arrangements both in Perth and Adelaide for maintenance and repair work to be performed on the trucks that were driven. In particular, the respondent employed mechanics in Adelaide to perform mechanical repairs.
In cross-examination however, Mr Sutton conceded that with respect to brakes, he knew how to perform minor adjustments, which generally involved checking and adjusting the tension of the brakes. Mr Sutton said this job could be performed with a spanner.
Mr Sutton said that on 28 June 1996 he was asked to drive a truck and trailer, which were known as a b-train, from Perth to Adelaide by Mr Berkhort. This was a Friday and was his usual loading day. It was anticipated he would leave for Adelaide the following day. Mr Sutton went to the depot of the respondent at Maddington and was told which trailer to take. He noticed this was a different trailer to the one that he had last brought over from Adelaide. Mr Sutton hooked up the trailer to a prime mover and then proceeded to drive it down the road. When he did this he noticed the brakes of the trailer were not functioning properly. He thought only the brakes of the prime mover were working and the brakes of the trailer were not working at all. He said that he stopped the truck and checked for an air leak but did not find anything. He then proceeded to collect his load from Byford.
Upon returning to the yard, Mr Sutton spoke to Mr Berkhort. He told Mr Berkhort that the trailer did not have any brakes. Mr Sutton said that he was told by Mr Berkhort that he knew of the problem from the driver who had come over from Adelaide. Mr Sutton said that Mr Berkhort told him the driver had spent about two and a half hours attempting to fix the brakes. Mr Sutton told Mr Berkhort that he would not take the trailer on the road in that condition. He said that he thought that it was dangerous for himself and for other road users. Mr Sutton said that Mr Berkhort ignored him for a while but then said that he would do something about the brakes. Mr Sutton said that Mr Berkhort indicated that he should take the truck and the trailer to the Caltex truck stop pit in Kelvin Road, Maddington, which was about half a kilometre from the respondent's depot. Mr Sutton did this. Mr Sutton understood that Mr Berkhort was to arrange for someone to come and have a look at the brakes, who would be competent to do so. Mr Sutton waited but no-one arrived. He waited for one to one and a half hours and then drove home. He left the trailer at the truck stop pit.
Upon arriving home he rang Mr Berkhort at his office at the respondent's depot. Mr Sutton said he told Mr Berkhort that he had taken the truck to the truck stop but that no-one had come to check the brakes. He said that Mr Berkhort said he expected Mr Sutton to fix the brakes. Mr Sutton said he would not and wanted someone to look at the brakes. Mr Berkhort said that if Mr Sutton himself did not fix the brakes then he was finished. Mr Sutton replied that if that was the way Mr Berkhort wanted it, he was finished and he would return to the truck to get his stuff out.
Mr Sutton said that he took Mr Berkhort's comments as effecting the termination of his employment and that he did not have any further discussions with Mr Berkhort about the issue. Mr Sutton said that his wife was in the room for part of this conversation.
Mr Sutton said he did not think the problem with the brakes was of such a minor nature that he could fix it by making an adjustment to the brakes. He thought the problem required a mechanic.
In her evidence, Mrs Sutton said that on 28 June 1996 at about 1:00 pm her husband came home and went into the bedroom. He told her that he was going to make a telephone call. Part way through the telephone call Mrs Sutton walked into the bedroom and heard her husband say that if someone had worked on the trailer for a couple of hours he did not think that he could repair the problem because he was not a trained mechanic. There was then silence at Mr Sutton's end of the telephone call. She then heard Mr Sutton say that he would get his gear out of the truck. Mr Sutton then put the phone down and said that Mr Berkhort had sacked him.
In his evidence, Mr Berkhort said that it was commonplace for a driver to perform adjustments on the brakes of a trailer. Mr Berkhort indicated that this was, in his opinion, part and parcel of the job of a truck driver. He said that a truck driver could adjust the brakes by using a spanner. He said that this involved about 15 minutes work. He spoke of his experiences of 38 years work in the trucking industry as both driver and manager.
With respect to the disagreement with Mr Sutton, Mr Berkhort said that the truck and the trailer had arrived in Perth from Adelaide on Thursday, 27 June 1996. The truck and trailer had been driven to Perth from Adelaide by Mr Paul Hughes. Mr Hughes told him that, at Kalgoorlie he had made some minor adjustments to the brakes; however this was done in darkness and the brakes should be checked again to see if they needed some minor adjustments. Mr Berkhort said that he told Mr Sutton of this before Mr Sutton left the depot to travel to Byford to get the trailer loaded with flour. When Mr Sutton returned with the trailer there was a further conversation about the trailer brakes. Mr Berkhort said that he told Mr Sutton that he could either adjust the brakes in the yard or go to the Caltex truck stop to do it there. Mr Berkhort said that he had this conversation with Mr Sutton because after Mr Sutton returned from Byford he had indicated that he was not quite satisfied with the brakes and that they needed "doing up".
Mr Berkhort denied that Mr Hughes told him that he had tried to fix the brakes for two and a half hours or anything like that. He said that he did not say this to Mr Sutton at any time. He said that from his conversation with Mr Hughes, he thought that the truck may only require a minor adjustment.
After the conversation with Mr Sutton, Mr Berkhort went about his duties in his office. He said that about one and a half hours later Mr Sutton telephoned him and asked about the arrangements that could be made to effect the adjustment of the brakes. Mr Berkhort indicated he thought this was Mr Sutton's job and that Mr Sutton replied why didn't Mr Berkhort do it. Mr Berkhort told him that he was the manager and that it was part of Mr Sutton's job. He said that he told Mr Sutton that unless he did the adjustment, they may have to part company. He said that Mr Sutton said does this mean I have to take my gear out of the truck and that he, Mr Berkhort, replied that if that was how he wanted it, he could.
Of this conversation, Mr Berkhort accepted, in cross-examination, that the effect of what he said to Mr Sutton was that he had to come back and adjust the brakes or Mr Sutton and the respondent would part company. Mr Berkhort accepted that he was in effect giving Mr Sutton an ultimatum.
Mr Hughes' evidence was that he drove the truck and trailer in question from Adelaide to Perth, arriving on Thursday, 27 June 1996. Mr Hughes said that the truck and trailer that he drove was not the truck and trailer that he normally drove. He said that when he first drove the truck in Adelaide he realised that the brakes needed adjustment. He said that it was pouring with rain at the time and that he tried to find an appropriate dry spot to adjust the brakes. Mr Hughes drove on to Norseman and at Norseman changed vehicles with another driver of the respondent whom Mr Hughes described as "Frosty". This arrangement lasted from Norseman to Kalgoorlie when he and Frosty changed vehicles again. At Kalgoorlie Mr Hughes worked on the brakes of the trailer. He said that he adjusted the front and rear axle brakes but did not check the middle axle. This was because it was difficult for him to reach the middle axle because of his size, a lack of light and because it was muddy. He said that the adjustment job took between 20 to 25 minutes. He said that he did not recall telling Mr Berkhort how long he worked on the truck but just thought he described to him what he had done. He said that he told Mr Berkhort that there may need to be further adjustment to the middle axle brake of the trailer. Mr Hughes said that he had always adjusted brakes in his 15 years on and off as a truck driver. He also said that he had considerable experience in working with truck brakes.
Mr Hughes said that after attending to the brakes in Kalgoorlie they worked effectively. He checked the brakes at the compulsory Greenmount hill truck stop and the brakes were adequate. He also said the brakes on the trailer were working properly when he descended Greenmount hill and had to apply the brakes to the trailer because of the steepness of the hill. He said that he did not see how the brakes on the trailer could have deteriorated to the point that they were not working at all when Mr Sutton came to drive the truck the following day; although he did not try and drive the truck on the Friday.
Mr Sharp was a former employee of the respondent as a truck driver. He was an employee on 28 June 1996. He was telephoned by Mr Berkhort and asked whether he could do a job for the respondent and agreed to do so. Mr Sharp drove to the respondent's depot and agreed to drive the truck and trailer to Adelaide. He was told that the trailer was at the truck stop pit at the Caltex service station and that there may be a problem with the brakes on the trailer. He was told by Mr Berkhort that these may need adjusting. He said that he adjusted the brakes, loaded the trailer onto the truck and drove it to Adelaide. He "guessed" that he took 20 minutes to adjust the brakes. He said that he did this work himself. He said that the brakes were then satisfactory and that he did not have any difficulty in driving the truck to Adelaide. He there delivered the truck to the respondent's depot in Adelaide where he told a mechanic there had been a problem with the brakes but that he had adjusted it. He asked the mechanic to check the brakes out. Mr Sharp has worked as a truck driver for about 20 years. He said that he ordinarily did all brake adjustments as he was a mechanic by trade and it was not difficult for him to do. He thought that it was a normal part of his duties as a truck driver.
When cross-examined, Mr Sharp said that he could not specifically recall testing the brakes when he hooked the trailer onto the truck at the Caltex truck pit stop. He said that he would ordinarily do this but did not specifically recall it. In terms of driving the trailer from the Caltex pit stop to the depot, he said that he was aware that the brakes would need adjustment so he would have checked them to make sure they were okay to drive to the yard. Again, however, he could not specifically recall checking them. However, he said that he would not have proceeded back to the depot if the brakes were not functioning at all. He said that in those circumstances he would have adjusted the brakes at the Caltex pit stop because it would be dangerous to drive with a trailer in this condition.
TERMINATION OF EMPLOYMENT
The applicant may only seek a remedy under the Act if his employment has been terminated by the respondent. The expression termination of employment is not, for relevant purposes, specifically defined in the Act. However, section 170CB of the Act says that an expression has the same meaning in Division 3 of Part VIA of the Act as in the Termination of Employment Convention 1982, the English text of which is reproduced as Schedule 10 to the Act. In the Convention, Part 1 Article 3, the expression termination of employment means termination of employment at the initiative of the employer.
The circumstances in which such a situation may occur were considered by the Full Court in Mohazab v Dick Smith Electronics (1995) 62 IR 200 at 206. The Court there said that the following were indicative of a termination of employment at the initiative of the employer:
A termination in which the action of the employer is the principle contributing factor which leads to the termination of the employment relationship;
The act of the employer results directly or consequentially in the termination of the employment;
The employment relationship is not voluntarily left by the employee;
Had the employer not taken the action it did, the employee would have remained in the employment relationship; or
What was the critical action, or actions, that constituted a termination of employment (relying on the judgment of Wilcox CJ in APESMA v David Graphics Pty Ltd, unreported, IRCA 410/95, 12 July 1995).
In this case I am satisfied that there has been a termination of employment at the initiative of the employer, through Mr Berkhort. I accept this to be the case whether the terms of the conversation with Mr Sutton were in the terms suggested by him in his evidence or that suggested by Mr Berkhort. I have said earlier that Mr Berkhort accepted that he effectively gave Mr Sutton an ultimatum to do what was asked of him or end the employment relationship. I am satisfied that the giving of this ultimatum would be a sufficient critical action by the employer for it to be said that the termination of employment was at the initiative of the employer.
In my opinion, it would be too narrow a construction of the events and the conversation, to find that Mr Sutton voluntarily left the employment relationship by his refusal to adjust the brakes or drive the truck.
Therefore, Mr Sutton has discharged his onus and proved there was a termination of employment at the initiative of the employer.
SECTION 170DE(1)
This section provides that:
"An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service".
Under section 170EDA of the Act, the respondent has the onus of proving that there was a valid reason for the termination of employment in accordance with section 170DE(1).
In Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, Northrop J at page 373 said that valid in the context of section 170DE(1):
"should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of section 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business".
The case of the respondent was, in essence, that there was a valid reason for termination of employment because Mr Sutton refused to carry out the reasonable request of adjusting the brakes himself, which the respondent considered to be part of his duties as a truck driver.
The respondent sought to rely on the evidence of both Mr Sharp and Mr Hughes to establish that the problem with the brakes was only one of adjustment which Mr Sutton could reasonably have performed himself.
At least on it's face, there is a significant difference between the problem with the brakes that Mr Hughes and Mr Sharp referred to and that which Mr Sutton gave evidence about. The effect of Mr Sutton's evidence was that the brakes were not working at all, whereas the evidence of Mr Hughes and Mr Sharp was that they merely required adjustment. This was something that both Mr Hughes and Mr Sharp felt confident that they could and should do as truck drivers.
However, despite the difference between the evidence, this does not necessarily mean that either Mr Sutton or Mr Hughes and/or Mr Sharp are not telling the truth about the matter. The difference between their evidence may be explained by their own opinions as to the effectiveness of brakes working or not and their experience and ability to fix such a problem. That is, the differences may be of degree, opinion and perception. Mr Sutton said that he did not think that he had the appropriate experience or qualifications to fix the problem and wanted a properly qualified mechanic to look at it. This was the point of his disagreement with Mr Berkhort, who regarded the problem as one which Mr Sutton could and should solve himself.
Mr Berkhort may have been somewhat hasty in coming to this conclusion, given that neither he nor a mechanic had inspected the brakes.
Another difference in the evidence that I should mention is that Mr Berkhort and Mr Hughes both said that Mr Hughes did not tell Mr Berkhort that he had tried to fix the brakes for about two and a half hours in Kalgoorlie. This was a point of difference between the evidence of these witnesses and Mr Sutton, and also Mrs Sutton who said in evidence that she heard her husband make reference to this fact in the telephone conversation with Mr Berkhort.
This difference of evidence is not easy to resolve but it is one that does not have to be, in my opinion, to determine the case. Generally, I thought that each of Mr Sutton, Mrs Sutton, Mr Berkhort and Mr Hughes gave their evidence in a straightforward and unexaggerated fashion. All of them could be said to have an "incentive" to distort the truth, although it was not obvious to me which of them was so doing; if indeed any were.
With regard to the law on an employee failing to follow a direction, Beazley J in Izdes v Bennett (LG) & Co. Pty Ltd (1995) 61 IR 439 at 449 said that:
"It is well settled by the authorities that any direction to an employee must be both lawful and reasonable".
Her Honour then cited numerous authorities on the issue.
In this case it could be contended that the direction to Mr Sutton to fix the brakes himself was not both lawful and reasonable. Mr Sutton did not consider that he had the appropriate qualifications or experience to fix the brakes and thought that unless the brakes were looked at by a qualified mechanic, it would be unsafe to drive the vehicle. Mr Cuomo, for the applicant, in his closing, made reference to the obligations of the employer at common law, under the Road Traffic Act and under the Occupational Health and Safety Act to ensure that the truck was safe before an employee took it onto the road.
Further, it seems that there was no reason why Mr Berkhort could not get a qualified mechanic, such as Mr Sharp, to check the vehicle and adjust the brakes so that Mr Sutton could drive it interstate the following day. In my view, as stated earlier, Mr Berkhort may have acted too hastily in bringing the matter to a head and giving Mr Sutton the ultimatum that he did .
In Lupoi v Phillips Fox, unreported, IRCA 485/96, 3 October 1996, I canvassed some of the issues which would be relevant to determining whether a refusal to carry out an instruction would lead to a valid reason for termination of employment. At page 25 I indicated that in my opinion misconduct by an employee must have a sufficiently serious quality so as to warrant the sanction of termination of employment.
At page 26 I said that where misconduct was constituted by disobedience, insubordination, or a failure to comply with a lawful or reasonable command, one must consider all of the circumstances of the case to determine whether there has been a valid reason for termination.
This will necessitate an examination of, amongst other things:
The extent of the disobedience, in terms of the length of time over which the employee has been disobedient;
The nature of the disobedience in relation to the contract of employment;
Any warnings that had been given for failing to carry out the instruction;
The reasonableness of the request;
Whether there has been a calculated and persistent course of disobedience;
Whether the disobedience strikes at the essence of the contract of employment in the sense that it is inconsistent with the continuing relationship of employer and employee.
As the authorities to which I referred in Lupoi at pages 26 - 28 indicate, when considering a question of disobedience one must first consider the terms of the contract of employment. In this case, I am not satisfied that it was specifically a term of the contract of the employment that Mr Sutton would adjust brakes when they were in the condition that he described them. It formed no part of any duty statement or specific instruction given to Mr Sutton upon commencement of employment. In particular, Mr Berkhort said that a form of the respondent showing its "rules and regulations" of employment indicated that with respect to maintenance of trucks, the drivers had to check oil and water, but did not mention adjustment to brakes.
Further, I am not of the view that the particular failure by Mr Sutton, that is the failure to adjust the brakes himself, in the circumstances, was sufficiently serious to warrant the termination of his employment. He thought, and I accept this belief, the brakes were dangerous and he was not qualified to fix them. I do not accept that Mr Sutton was wilfully being obstructive or was lazy in saying he did not himself want to try to fix the brakes. I do not think he would have put his job at risk and accepted Mr Berkhort's ultimatum if he genuinely thought he was an appropriate person to work on the brakes. The fact that he waited at the Caltex pit stop for a mechanic to arrive supports this.
With the benefit of hindsight, it is an issue which could have been resolved by Mr Sharp being asked to check and adjust the brakes in question.
In all of the circumstances, I do not accept that the respondent has discharged it's onus and proved that there was a valid reason for termination of employment.
COMPENSATION
As stated earlier, there was no issue that compensation was the appropriate remedy to consider if there was an unlawful termination of employment. When employed by the respondent, the applicant was paid $1,100.00 per week gross. Mr Sutton was unemployed for five weeks and then found employment with Kewdale Structural Engineers working as a trades assistant. For this employment he is paid $565.00 for working a 38 hour week. When working for the respondent, Mr Sutton worked approximately an 80 hour week. Mr Sutton also said that he has made considerable efforts to find further truck driving work but that he has been unavailable to do so. This assertion was not challenged in cross-examination or by evidence.
Section 170EE(2) of the Act states that the Court may, if it considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate. This is subject to section 170EE(3) of the Act. This provides that:
"In working out the amount of the compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that ht employee would have received, or would have been likely to have received, if the employer had not terminated the employment, but the amount of compensation:
(a)must not exceed, in respect of any employee, the amount of remuneration that would have been received by the employee in respect of the period of 6 months that immediately followed the day on which the termination took effect if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect; and
(b)must not exceed, in respect of an employee who is not employed under award conditions, the applicable amount on the day on which the termination took effect".
It was common ground that the applicant was employed under an award, being the Transport (Interstate Driver's Consolidation) Award 1980. Therefore, section 170EE(3) provides a maximum amount of compensation that can be awarded of six months remuneration. In Mr Sutton's case this amount is $28,600.00.
Prior to trial, Mr Sutton has suffered the economic loss of five weeks when he was not employed and during which his loss was $5,500.00. The five weeks extends from 29 June 1996 to 3 August 1996. From 3 August 1996 until trial there are 173 days or approximately 25 weeks. The difference between the amount that Mr Sutton was paid by the respondent and his current weekly wage is $535.00. A loss of this amount for 25 weeks equals $13,375.00. This amount plus $5,500.00 gives a total pre-trial loss of $18,875.00. In assessing compensation I need to have regard to the contingency that Mr Sutton may not have continued to be employed by the respondent, for other reasons, until the trial: Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199. In this case, however, I only reduce the pre-trial loss by 10% for this contingency as there is no evidence of any reason existing at the time of the termination of employment which could have lead to Mr Sutton's resignation or termination for other reasons. This reduces the pre-trial loss to $16,987.50.
In my opinion, this is an appropriate amount to award to Mr Sutton by way of compensation. I do not make any allowance for future economic loss. This is to take into account the fact that although Mr Sutton has been earning less, since the termination of his employment, he has had to work about half the number of hours to earn this amount. This has meant that he has had a greater number of leisure hours. Alternatively, it could be said that in these hours Mr Sutton could, theoretically, have worked a second job but he did not seek such employment. In my opinion, an appropriate way to take into account these factors, in a general sense, is to allow Mr Sutton the full amount of his pre-trial economic loss, but not to allow any amount for future economic loss.
I will order that the amount referred to above be paid to Mr Sutton within 21 days.
I certify that this and the preceding eighteen (18) pages
are a true copy of the reasons for decision of
Judicial Registrar Ritter.
Associate:
Date:
APPEARANCES
Representative for the Applicant: Mr M Cuomo of the
Transport Workers Union
Counsel for the Respondent: Mr P Travers
Solicitors for the Respondent: P. Travers & Associates
Date of hearing: 23 January 1997
Date of judgment: 10 February 1997
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