Tranter v Council of the Shire of Wentworth
[1995] IRCA 573
•24 October 1995
CATCHWORDS
INDUSTRIAL LAW - Review of JUDICIAL REGISTRAR’S exercise of powers - AWARD interpretation - TERMINATION OF EMPLOYMENT - Termination not for a VALID REASON - COMPENSATION - Deduction from figure that would have been earned, if employment had continued, of the moneys earned in alternative employment - Proper quantum of deductions - Calculation of interest payments due to applicant - COSTS
Industrial Relations Act 1988, ss 170DC, 170DE, 170EA, 377
Mutual Acceptance Co Ltd v Federal Commission of Taxation (1944) 69 CLR 389, 397
Jim Peter Mullany v Active Concrete, WI 0747R of 1994, Industrial Relations Court of Australia, 3 May 1995, (as yet unreported), at 4-5, Wilcox CJ
Paul Janicek v ICI Dulux Australia, VI 94/1955R, Industrial Relations Court of Australia, 4 September 1995, (as yet unreported), at 11-12, Wilcox CJ
AMIEU v Sunland Enterprises Pty Ltd (1988) 81 ALR 213, 222.
Patricia Andrews v Uniting Church in Australia Frontier Services Trading as Old Timers, DI 94/198, Industrial Relations Court of Australia, 19 September 1995, (as yet unreported), at 16, Gray J
R v Moore; ex parte Federated Miscellaneous Workers Union (1978) 140 CLR 470, 473
No. VI 1264R of 1994
IAN JAMES TRANTER -v- COUNCIL OF THE SHIRE OF WENTWORTH
Marshall J
Melbourne
24 October 1995
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VI 1264R of 1994
IAN JAMES TRANTER
Applicant
COUNCIL OF THE SHIRE OF
WENTWORTH
Respondent
JUDGE: Marshall J
PLACE: Melbourne
DATE: 24 October 1995
ORDER
THE COURT ORDERS THAT:
1.Order No 2 of the Orders of the Court of 16 March 1995 constituted by Judicial Registrar Farrell be set aside.
2.It is declared that the termination of the employment of the applicant by the respondent contravened s170DE Industrial Relations Act 1988.
3.The respondent shall pay to the applicant on or before 13 November 1995 compensation in the sum of $6,218.50 plus interest thereon at the rate of 12% per annum calculated from 31 March 1995.
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 )
)
VICTORIA DISTRICT REGISTRY ) No. VI 1264R of 1994
IAN JAMES TRANTER
Applicant
COUNCIL OF THE SHIRE OF
WENTWORTH
Respondent
JUDGE: Marshall J
PLACE: Melbourne
DATE: 24 October 1995
REASONS FOR JUDGMENT
BACKGROUND
On 2 August 1994 the applicant filed in the Registry an application pursuant to s170EA Industrial Relations Act 1988 (“the Act”). The applicant sought orders including an order that the respondent pay compensation to the applicant. The applicant filed an affidavit which accompanied the application. The affidavit disclosed that the applicant had commenced employment with the respondent in November 1989. It also disclosed the following material facts:
·the applicant was employed pursuant to the Municipal and Shire Council Wages Staff Award (NSW) (“the Award”);
·the applicant’s employment was terminated by the respondent on 22 July 1994;
·the applicant was then engaged as a Plant Operator Grade One;
·the applicant’s employment was terminated because of his refusal to carry out certain duties.
On 3 October 1994 Judicial Registrar Ryan dismissed the respondent’s notice of motion to strike out the application. The respondent had contended unsuccessfully that the applicant had an adequate alternative remedy in the New South Wales Industrial Relations Commission. On 3 October 1994 the matter was also referred to the Australian Industrial Relations Commission (“the federal Commission”) for conciliation. On 2 December 1994 Vice President McIntyre certified that the federal Commission had been unable to settle the matter by conciliation.
The application was head by Judicial Registrar Farrell on 8 and 9 February 1995. On 16 March 1995 the Judicial Registrar delivered her reasons for judgment. The order of the Court of 16 March 1995 was:-
“1.The termination of the Applicant’s employment by the Respondent contravened Division 3 Part VIA of the Industrial Relations Act.
2.That the respondent do pay to the Applicant compensation in the sum of $11,180.00 within fourteen days of today’s date.”
On 3 April 1995 the respondent moved the Court for orders including an order that the exercise of power by the Judicial Registrar be reviewed pursuant to s377 of the Act. The respondent’s notice of motion came before Gray J on 24 April 1995. His Honour directed that “the review be conducted on the transcript of the evidence and the exhibits tendered before the Judicial Registrar supplemented as the parties desire”. Gray J also ordered that the Judicial Registrar’s order for the payment of $11,180.00 be stayed “upon the respondent paying into an interest bearing account with the Westpac Banking Corporation, [that sum] to abide the order of the Court”. On the review the Court was informed that the respondent, on 21 April 1995, had paid the $11,180.00 into such an account with the Westpac Banking Corporation (“Westpac”) effectively as a sign of good faith pending the outcome of the review.
The review was heard by the Court on 9 and 10 October 1995. It was not in dispute that the applicant was originally employed by the respondent as a gardener and that in October 1993 he was reclassified to “Plant Operator Grade One”. From October 1993 the applicant although so classified was used by the respondent as a spare man to plug deficiencies in labour resources in various parts of the respondent’s activities.
The events that led to the termination of the applicant’s employment were as follows:-
·In February 1994 the applicant was required by the respondent to work as an off-sider to a grader driver in locations remote from the respondent’s headquarters where the applicant was required to camp-out overnight at his isolated work location during the working week. This activity continued for two consecutive weeks.
·After the two weeks in February 1994 referred to above, the applicant performed work on the respondent’s road maintenance team until 19 July 1994. On that day the applicant proceeded on work which again required camping out. This time he was told by representatives of the respondent that he would be required to camp out for four days, i.e. until 22 July 1994.
·On 22 July 1994 he was informed by representatives of the respondent that he was required to camp out again the following week. He was most unhappy about the prospect of camping out again for another week and further time beyond that week.
·There was a dispute on the evidence as to the length of time which the applicant was required to camp out from 25 July 1994. The applicant’s version was that it was an “indefinite” requirement. The respondent’s version was that it was “a week to week proposition”. Counsel for the respondent (Mr Hodgkinson) accepted that the Court was entitled to form the view that the respondent may have required the applicant to camp out for a little longer than three months; by which time another employee’s wife would have delivered her baby and been assured of appropriate post natal care. It was that employee that the applicant was replacing in work that required camping out.
THE OBLIGATION TO “CAMP OUT”
The solicitor for the applicant (Mr Richards) contended that the applicant was not required to camp out as a result of any obligation imposed by the award and that he was entitled to refuse any direction to camp out. I reject that submission. In my view clause 14 of the award evinces an intention to permit employers bound by it to require their employees to camp out to perform their duties. Clause 14 provides as follows (so far as is material):-
“(i)(a) Employees who are required to camp either by the Council or because no reasonable transport facilities are available to enable them to proceed to and from their homes each day shall be paid a camping allowance of (See Appendix) for each day they camp out.
.....
(c) When employees are required to camp, all travelling between their respective depots and camp site at the beginning and/or completion of the camp be undertaken during normal working hours. If employees are required to travel outside normal working hours they shall be paid a travelling allowance (in accordance with Travelling Allowance prescribed in Clause 14, (ii)(b) of this Award) in addition to all other payments the employee is entitled to in accordance with this Clause. (emphasis supplied)
.....
(xiii)No employee shall be required to camp without at least 24 hours’ notice unless he agrees to do so.”
The language of the provision set out above is indicative of a right in an employer to require an employee to camp out. Clause 14 recognises this requirement and provides for an allowance to be paid to employees so required, as “compensation for unusual conditions of that service”. See Mutual Acceptance Co Ltd v Federal Commission of Taxation (1944) 69 CLR 389, 397 per Latham CJ. Clause 14 (xiii) restricts the right of an employer to so require an employee, in the absence of consent, to camp out on less than 24 hours notice.
THE CRITICAL ISSUE
Given that the respondent was entitled to require the applicant to camp out, the critical issue in the review is whether or not its command that the applicant camp out on and from 25 July 1994 during his working week for a period of up to approximately three months was a reasonable one. Mr Hodgkinson submitted that the applicant might have been relieved of the duties which required him to camp out within a relatively short period of time. However what the Court has to focus upon is what was put to the applicant at the time he was requested to camp out on and from 25 July 1994. The applicant was not informed of the possibility of being “relieved” in a short time frame. He was placed in a position where he was being directed to camp out for a potentially long period of time immediately after a four day period of camping out. I do not suggest that the respondent should have employed someone especially to perform the duties which the applicant declined to perform. Nor do I suggest that the respondent should have reorganised its rosters for the week commencing 25 July 1994. The most reasonable course of action would have been for the respondent to put to the applicant that it had no alternative but to require him to camp out in the week of 25 July 1994 but that it would make every effort to ensure that he would be relieved of that task as soon as possible by manipulating rosters for future weeks and/or by expediting the process already then in train of interviewing potential new employees.
By not putting those inherently reasonable and in the circumstances, workable, propositions to the applicant the respondent left him with no alternative but to refuse to accept what the Court considers to be an unreasonable request. That is, a request which involved a family man such as the applicant being confronted with the prospect of camping out during the week, away from his family potentially for months on end.
As Mr Hodgkinson submitted, the ultimate question is whether the direction of the respondent to the applicant on 22 July 1994 was a reasonable one. Also, as counsel put it, if the Court finds the direction was an unreasonable one the termination of the applicant would be unlawful.
I find that the direction was, in all the circumstances, unreasonable for the reasons set out above. I therefore find that the respondent did not have a valid reason for the termination of the applicant’s employment. In terminating the employment of the applicant the respondent acted in breach of s170DE of the Act. I decide the critical issue in the applicant’s favour.
SECTION 170DC
Mr Richards submitted that the respondent had also breached s170DC of the Act by terminating the employment of the applicant without giving the applicant an opportunity to defend himself against the allegations made. I accept Mr Hodgkinson’s submission that the respondent did not breach s170DC of the Act. The applicant was given a hearing by the respondent as to why he considered it to be unreasonable for the respondent to require him to camp out in all the circumstances. Notwithstanding the giving to the applicant of such a hearing the respondent proceeded to dismiss the applicant unreasonably.
I find that no breach of s170DC occurred in the termination of the applicant’s employment by the respondent.
REMEDY
Mr Hodgkinson quite properly conceded that should the Court find that a relevant breach of the Act had occurred the appropriate remedy would be the equivalent of six months wages less the earnings of the applicant from other sources in the six months following his termination up to an amount in all relevant pay periods equal to that which he would have received from the respondent had he remained in the respondent’s employ. I believe this position to be an appropriate one. I do not propose to deduct money received by way of social security payments. I received no submission that I should do so but have considered the matter in any event. I agree, with respect, with the observances of Wilcox CJ in Jim Peter Mullany v Active Concrete (“Mullany”), WI 0747R of 1994, Industrial Relations Court of Australia, 3 May 1995, (as yet unreported), at 5, where His Honour said:-
“The Court is required under s.170EE(3), in working out the amount of compensation, ‘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’; but the amount must not exceed the amount of remuneration that would have been received by the employee in respect of the period of six months that immediately followed the date of termination.
I think that the subsection directs attention to remuneration received in respect of work done, not money received from other sources and unrelated to work done; for example, social security receipts or gifts received from organisations or persons who take a charitable interest in the employee’s plight. Accordingly, I do not propose to reduce the amount of compensation to which I think the applicant is otherwise entitled because of the social services payments.”
See also, albeit in the context of “remuneration lost” as distinct from “compensation”, the decision of Wilcox CJ in Paul Janicek v ICI Dulux Australia (“Janicek”), VI 94/1955R, Industrial Relations Court of Australia, 4 September 1995, (as yet unreported), at 11-12.
The deduction of sums received from other sources in the relevant period up to amounts equal to those amounts which the applicant would have received from the respondent during any such period is an appropriate deduction to be made. See Mullany at 4-5 and Janicek at 12 as to the deduction of amounts earned in the six month period after the termination. As to the limit of such amounts to be deducted in any relevant period see AMIEU v Sunland Enterprises Pty Ltd (1988) 81 ALR 213, 222.
The $11,180.00 ordered by the Judicial Registrar to be paid by the respondent to the applicant represented six months’ wages based on $430.00 gross per week. In the six months following the termination of his employment, Mr Tranter earned $5,235.00. In four weekly periods he earned in excess of $430.00 in such alternative employment by the following sums:- $32.50, $30.00, $123.00 and $88.00. The total of such sums is $273.50. Therefore the sum of $5,235.00 should have deducted from it the sum of $273.50 in order to determine the appropriate amount which should be deducted from $11,180.00. That appropriate amount is $4,961.50. The compensation which the Court orders to be paid to the applicant is hence $6,218.50.
INTEREST
Mr Richards submitted that the respondent should be required to pay interest on any amount ordered by the Court with effect from 31 March 1995, being 14 days after Judicial Registrar Farrell’s order. In my view it is appropriate for the Court to so order. I do not believe that it is appropriate for the Court to order that the applicant receive a proportion of the interest in the account held by the respondent with Westpac and referred to in the 24 April 1995 order of Gray J. That account was opened in advance of the directions hearing before Gray J. The applicant played no role in the selection of that account nor did he agree to only seek any interest payable on that account or a proportion thereof in the event that he succeeded in whole or in part in the review. Pursuant to Order 35 r8 of the rules of Court I will order that the amount of compensation to be ordered shall be supplemented by an amount equal to 12% interest thereon on and from 31 March 1995.
COSTS
By letter dated 20 October 1995 the applicant sought costs of the review. I reject that application upon the basis that the Court has no power to grant costs on the review. See Patricia Andrews v Uniting Church in Australia Frontier Services Trading as Old Timers, DI 94/198, Industrial Relations Court of Australia, 19 September 1995, (as yet unreported), at 16, Gray J, where His Honour said:
“In my view, the nature of a review of a judicial registrar’s exercise of the power is such that an application for such a review cannot be regarded as a ‘proceeding’, for the purposes of s. 347 of the Act. It is an integral part of the proceeding which is commenced by application made under s. 170EA of the Act. It is properly made by notice of motion, which is to be treated in the same manner as a notice of motion seeking any other interlocutory order within the proceeding commenced by the application under s. 170EA.”
I respectfully agree with the views of Gray J expressed above. Even if the Court was of a contrary view as to its jurisdiction, I would not have awarded costs in this case given the fact that the amount of compensation which the respondent is now liable to pay to the applicant has been significantly reduced as a result of the review. I also would have taken into account the fact that while the respondent did not succeed on the primary issue as to whether the Act had been relevantly breached its submissions were not unarguable. See R v Moore; ex parte Federated Miscellaneous Workers Union (1978) 140 CLR 470, 473 (per Gibbs J).
ORDERS
The order of the Court in this matter is as follows:
1.Order No 2 of the Orders of the Court of 16 March 1995 constituted by Judicial Registrar Farrell be set aside.
2.It is declared that the termination of the employment of the applicant by the respondent contravened s170DE Industrial Relations Act 1988.
3.The respondent shall pay to the applicant on or before 13 November 1995 compensation in the sum of $6,218.50 plus interest thereon at the rate of 12% per annum calculated from 31 March 1995.
I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date: 24 October 1995
Counsel for the Applicant: Mr K Richards (Solicitor)
Solicitor for the Applicant: Messrs Irwin & Richards
Counsel for the Respondent: Mr B D Hodgkinson
Briefed by: Local Government and
Shires Association NSW
Date of hearings: 9, 10 October 1995
Date of judgment: 24 October 1995
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VI 1264R of 1994
BETWEEN: IAN JAMES TRANTER
Applicant
COUNCIL OF THE SHIRE OF
WENTWORTH
Respondent
JUDGE: Marshall J
PLACE: Melbourne
DATE: 2 November 1995
CORRIGENDUM
Please insert the following paragraph at the beginning of page 9 immediately under the heading “REMEDY”:-
“There was evidence in the proceeding that the applicant felt that there was a conspiracy against him at the foreman/supervisory level. Relations between the applicant and those superior to him were not good. In view of this, but for the termination, the applicant’s employment would have been unlikely to last beyond another six months and that by that time it is probable that his employment would have been validly terminated.”
Associate:
Date: 2 November 1995
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