Varuna Mallawarachchi v Quirk Corporate Cleaning Australia Pty Ltd
[1995] IRCA 587
•01 November 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim for UNLAWFUL TERMINATION - whether PROCEDURAL FAIRNESS - whether a VALID REASON for termination - REMEDY.
INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170DC, 170DE, 170EDA, 170EE
VARUNA MALLAWARACHCHI -v- QUIRK CORPORATE CLEANING AUSTRALIA PTY LTD - WI 95/1627
BEFORE: BOON JR
PLACE: PERTH
DATE: 1 NOVEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1627
BETWEEN: VARUNA MALLAWARACHCHI
- Applicant
AND: QUIRK CORPORATE CLEANING
AUSTRALIA PTY LTD
- Respondent
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 1 NOVEMBER 1995
THE COURT ORDERS THAT:
Within 14 days of the date of this order, the respondent reinstate the applicant by appointing the applicant to another position within the Perth city area on terms and conditions no less favourable than those on which the applicant was employed immediately before the termination.
Within 14 days of the date of this order, the respondent pay compensation to the applicant at the rate of $312.49 per week for the period between the date of termination and the date of reinstatement.
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 ) No. WI 95/1627
BETWEEN: VARUNA MALLAWARACHCHI
- Applicant
AND: QUIRK CORPORATE CLEANING
AUSTRALIA PTY LTD
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 1 NOVEMBER 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988 arising out of the alleged unlawful termination of employment of the applicant by the respondent. The applicant alleges that the provisions of the Industrial Relations Act were breached in a number of ways.
Firstly, it is said that he was not given an opportunity to defend himself against the allegations made in relation to his conduct or performance. The respondent says that the applicant was given an opportunity to defend himself and further states that it gave the applicant a warning letter one week prior to termination. Secondly, the applicant says that the termination was not for a valid reason connected with his capacity or conduct or based on the operational requirements of the employer's undertaking. The applicant further says that the termination was in any event harsh, unjust or unreasonable within the meaning of Section 170DE(2) of the Act.
BACKGROUND
The respondent, Quirk Corporate Cleaning Australia Pty Ltd, is one of the largest contract cleaning establishments in Western Australia. It has a contract to clean the Myer store in Perth. The applicant, Varuna Mallawarachchi, is a temporary resident in Australia. His country of origin is Sri Lanka. In Sri Lanka, he was a practicing lawyer. Next year, he plans to study law in Western Australian with the aim of eventually being admitted to practice in this country. He is married and he and his wife have a small child. He needs part-time employment to support his family while he is studying.
In December 1994, Mr Mallawarachchi started work as a part-time cleaner with Quirk Corporate Cleaning in the Myer store in Perth. Initially, Mr Mallawarachchi worked 24 hours per week on a split shift of mornings and evenings. This was later increased to 26 hours with the addition of Sunday trading. Some time after Mr Mallawarachchi started to work for the respondent, he obtained additional employment with the Myer city store as a kitchen hand. Mr Nilan Chandratilake, the respondent's Customer Service Manager, responsible for the Myer city store, informed Mr Mallawarachchi that he had some concerns in relation to this as Myer had a policy of not allowing their direct employees to work for anyone else on the same site. It was put to the applicant that he would not be able to work for both Quirk Corporate Cleaning and Myer at the same site. Because of this policy, it was suggested by the respondent to the applicant that Mr Mallawarachchi be transferred by the respondent to the Myer store in Booragoon. This did not suit the applicant as he did not have transport to enable him to work at the Booragoon store. After some negotiations between Mr Mallawarachchi and his union official on the one hand and Ms Diane Rowe, the State Manager of Quirk Corporate Cleaning, and the management of Myer on the other hand, the matter was satisfactorily resolved. Mr Mallawarachchi was permitted to work for both employers at the Myer city site.
There was some conflict in the evidence as to whether Mr Mallawarachchi spoke to Ms Rowe in person or only over the telephone. Mr Mallawarachchi gave evidence that he attended at the office of Quirk Corporate Cleaning and met only with Mr Tony Petric, the Payroll Manager, to discuss concerns regarding his pay. Ms Rowe gave evidence that Mr Mallawarachchi attended a meeting with her wherein she told him that Myer was prepared to accept him continuing in the city store, provided that security was strictly adhered to by him and that Quirk Corporate Cleaning supplied a guarantee to this effect. Mr Mallawarachchi had made some allegations about Mr Chandratilake's management style but these had been found by Quirk Corporate Cleaning to have no substance. Ms Rowe said that she told Mr Mallawarachchi that there were problems with his performance in his job which he needed to address and that Mr Mallawarachchi also had to restore the working relationship with Mr Chandratilake and accept his right to manage. Ms Rowe said that Mr Mallawarachchi agreed to give her a commitment to address these issues and on that basis he was allowed to stay at the city store.
Mr Mallawarachchi gave evidence that he continued in his job at Myer. His duties involved buffing the floors in the morning, mainly in the Myer Food Hall. He also worked two hours in the evenings which involved sweeping and mopping the Food Hall. His evidence was that when arrived at work on the morning of 1 May 1995, Mr Chandratilake said that he was to do vacuuming in the mornings instead of buffing the floors. The reason given by Mr Chandratilake, according to Mr Mallawarachchi, was that the workers had to learn each other's jobs.
Mr Mallawarachchi was assigned to another cleaner who showed him around the various levels and how to do the vacuuming. Mr Mallawarachchi and the other cleaner each had a vacuum cleaner. From the second day onwards, according to Mr Mallawarachchi, he had to do the vacuuming alone. He had to vacuum a certain area on each of the five floors in the Myer city building. He said that in the first week it was confusing to the extent that he ended up vacuuming someone else's area as well as well as his own. He was unable to finish vacuuming up to level 5. At the time he was terminated, he had only reached up to half of level 4. Mr Mallawarachchi said that even the experienced vacuumers found it very difficult to finish five levels in the two hours allotted. Mr Mallawarachchi said he was not really trained in how to do the vacuuming. The other cleaners were faster because they were more experienced. Mr Mallawarachchi said that when he was changed to vacuuming duties, he was told that if he didn't finish the area allotted to him he must tell Mr Chandratilake how much he couldn't do by paging him at 8.00 am. Mr Mallawarachchi did this and left after doing the vacuuming for the two hours allotted to him. Mr Mallawarachchi said that about three or four days after he started on the vacuuming there was a meeting at Myer with the other vacuuming team members where they were all told that they had to vacuum the edges of the floors. The other members said that it was very difficult to do it in two hours as the job used to be done in two-and-a-half hours. Mr Chandratilake said that he would give each member of the team an extra half hour for a week, but that didn't eventuate.
Mr Mallawarachchi's evidence was that until his termination he was never given any warnings about his performance at work. He says that he never received any complaints and he did not receive a warning letter a week before he received his letter of termination.
Mr Nilan Chandratilake gave evidence that he had daily contact with Mr Mallawarachchi. His evidence was that he received customer complaints about the standard of Mr Mallawarachchi's cleaning on a daily basis. Mr Chandratilake said that he therefore spoke to Mr Mallawarachchi about his work performance on a daily basis. Mr Mallawarachchi, according to Mr Chandratilake, answered as if he didn't care. Mr Chandratilake's main complaint was that the edges of the floors in the Food Hall were not clean. He also had trouble with Mr Mallawarachchi's original morning duties of buffing the floors. Mr Mallawarachchi had problems starting the buffing machine. He would page Mr Chandratilake up to three times each morning to come and start the machine for him. As a result of this, he told Mr Mallawarachchi on 1 May 1995 that he was taking disciplinary action because he had to continually start the buffing machine for him. It was for this reason that Mr Mallawarachchi was changed to vacuuming duties. Mr Chandratilake said that once Mr Mallawarachchi had moved into vacuuming duties he continued to receive customer complaints on a daily basis in relation to the standard of work. He had to tell the other three members of the vacuuming team to help Mr Mallawarachchi and to finish his work for him. On some occasions, he had to ask full-time employees to finish the work after the store was open. Mr Chandratilake said that he spoke to Mr Mallawarachchi on numerous occasions about his work performance. Mr Mallawarachchi would simply finish work at 8.00 am and Mr Chandratilake would have to ask other members of the team to finish the vacuuming. After some time, the other staff members said they were not prepared to keep on working with Mr Mallawarachchi as they worked as a team and they did not want to finish his work for him.
Maggie Fung gave evidence on behalf of the respondent. She has been working for Quirk Corporate Cleaning for 2½ years as a vacuum cleaner. Before she worked for the respondent, she had worked as a cleaner at another company. Ms Fung gave evidence that sometimes Mr Mallawarachchi didn't finish his work but he went home at 8.00 am anyway leaving the rest of the team to finish his job. Mr Mallawarachchi had the same amount of work to do as the rest of the team. Ms Fung talked to Mr Chandratilake about this and indicated that the rest of the team was not prepared to continue to do his work for him. There was a meeting with Mr Chandratilake and the vacuum cleaning team but Mr Mallawarachchi was not there. He was only present at one meeting at which he said that he was only paid for two hours' work and would therefore only do two hours' work. Ms Fung gave evidence that Mr Mallawarachchi worked between 6.00 am and 8.00 am and that he continued to work all the time during that shift. The vacuuming team is supposed to finish its work within the two hour period. Ms Fung said that when she first started doing the area vacuuming at Myer she couldn't finish the job in two hours. She finished the work but she didn't get paid for the extra time it took her to complete the task. Her evidence was that after three or four weeks she could finish the vacuuming in two hours.
Another member of the vacuuming team, Darmono, also gave evidence that working with Mr Mallawarachchi was a problem as he was not finishing vacuuming the carpets and the rest of the team would have to finish them for him. He was unhappy about that as he would have to work about 15 minutes overtime for which he was not paid.
Mr Mallawarachchi gave evidence that as he was only paid to work between 6.00 am and 8.00 am, he only worked for the two hours. He was not aware that the other members of the team finished his work after he left. He was not aware that they were not paid for this overtime work. He said that he simply did what Mr Chandratilake told him to do, namely, to page Mr Chandratilake to tell him how much of the vacuuming he had finished.
Mr Chandratilake gave evidence that after these meetings with the rest of the vacuuming team he gave Mr Mallawarachchi a warning letter. Mr Chandratilake said that he handed the letter to Mr Mallawarachchi on Monday 8 May. The copy of the warning letter is dated 7 May and reads as follows:
"Dear Sir/Madam
Recent investigation has revealed that your work performance is not up to the standards required by this company. This letter is to advise that unless there is a marked improvement and instructions from your leading hand/supervisor are adhered to, your services will be terminated under the conditions of the award.
We look forward to your co-operation.
Yours faithfully
QUIRK CORPORATE CLEANING AUSTRALIA PTY LTDN Chandratilake
Contract Manager"
Mr Mallawarachchi maintains that he never received this letter.
Mr Mallawarachchi gave evidence that on Friday 12 May his hand was strained when he was folding up some chairs. This happened at about 11.30 pm. There was no other person in the building as the others had finished earlier. Mr Mallawarachchi said that he paged Mr Chandratilake on his mobile phone and said that he had injured his left wrist. Mr Mallawarachchi left work early because of the pain. He went to work the next morning as he thought he could do some work without using his left hand. He said that he asked Mr Chandratilake to find someone else to do the mopping that day and to find him another job. Mr Mallawarachchi's evidence was that Mr Chandratilake said that he had no work to give him and advised him to obtain a medical certificate. Mr Mallawarachchi did not work on Sunday morning but returned to work the following Monday.
Mr Chandratilake said that on Friday 12 May he was looking for Mr Mallawarachchi in the Food Hall and could not find him. The security guard told him that Mr Mallawarachchi had left. Mr Chandratilake had to stay and finish his work for him. Mr Mallawarachchi had not signed off as he was required to do. On the Saturday morning when Mr Mallawarachchi turned up, Mr Chandratilake asked why he had left early and at first Mr Mallawarachchi denied it. After a while, Mr Mallawarachchi said that he'd had a slight accident and had a sore wrist. Mr Chandratilake said to take the afternoon off and see a doctor as he may be entitled to workers' compensation. The evidence was that Mr Mallawarachchi did see a doctor who provided a medical certificate for the relevant period.
THE TERMINATION
On Monday 15 May, Mr Mallawarachchi arrived at work and Mr Chandratilake handed him a letter of termination. Mr Chandratilake's evidence was that he told Mr Mallawarachchi the reasons for the termination, namely that the Food Hall was not cleaned properly, that the edges of the floors had not been mopped at all and that his vacuuming was not up to standard. Mr Mallawarachchi told Mr Chandratilake he'd take it further and that he'd make sure that he'd get Mr Chandratilake sacked.
Mr Mallawarachchi said that on the Monday morning when he was mopping the Food Hall Mr Chandratilake handed the letter to him. He read it and went in search of Mr Chandratilake. He asked Mr Chandratilake what this termination was about and asked him what he meant by "a letter of 8 May". Mr Chandratilake said that he didn't want to argue with him and walked off. Mr Mallawarachchi subsequently spoke to Kim Maher of the union.
The letter of termination reads as follows:
"Dear Mr Mallawarachchi
TERMINATION OF EMPLOYMENT
I regret to advise you that your performance has not improved since I informed you of a problem, by letter, dated 8 May, 1995. Since this date I have raised with you, on a number of occasions the following on-going problems:1. Unable to finish a given task (vacuuming).
2. Continuous problems in the Food Hall.
3. Carpeted edges not vacuumed on level 3.
4. Tiled edges not cleaned in the Food Hall.
Accordingly, as per the terms of your Contract of Employment I am terminating you on 22 May, 1995.
I wish you all the best for your future.
Yours sincerely
QUIRK CORPORATE CLEANING AUSTRALIA PTY LTDNILAN CHANDRATILAKE
Customer Service Manager"
Mr Mallawarachchi spoke to Mr Maher of the union and arranged to meet him at the Myer city store at 5.30 pm on the following day so that they could discuss the matter with Mr Chandratilake. Mr Mallawarachchi went to work as arranged but Mr Maher was not there. In fact, when Mr Maher had contacted Mr Chandratilake, the time of appointment was put back to 5.00 pm.
Mr Maher gave evidence that he has been a union official for twelve years. Mr Maher had previously been involved in the dispute concerning the policy of Myer not to employ people who are also employed on the same site by the respondent.
Mr Maher's evidence is that when he spoke to the respondent's management in relation to that matter the only issue was the Myer policy. Mr Mallawarachchi's performance was not at issue at that stage. The next time he heard from Mr Mallawarachchi was when he received the termination letter. He contacted Mr Chandratilake who gave him "a series of verbals regarding Varuna's work". He arranged an inspection of the workplace for Wednesday 17 May at 5.30 pm and this was later changed to 5.00 pm. He met Mr Chandratilake at 5.00 pm and Mr Mallawarachchi was not present because he started work at 5.30 pm. Mr Maher was taken to the Food Hall and shown dirty marks two inches away from the wall. Mr Chandratilake said that this was why Mr Mallawarachchi's work was not satisfactory.
Mr Mallawarachchi's evidence was that he was told he was not to worry about the edges as contractors came in on a regular basis to clean them properly. Mr Chandratilake said that he understood the edges to form part of Mr Mallawarachchi's work. Mr Chandratilake further told Mr Maher that Mr Mallawarachchi was slow at vacuuming. After the inspection, Mr Maher and Mr Chandratilake had coffee and discussed various problems. Mr Maher suggested to Mr Chandratilake that the termination was harsh and that there were better ways of going about solving the problem. Mr Chandratilake's response seemed to be quite favourable and Mr Maher was left with the impression that the problem could be fixed. Mr Maher asked Mr Chandratilake about the termination letter and Mr Chandratilake said that point No. 1 and point No. 3 referred to the same thing and point No. 2 and point No. 4 referred to the same thing. Mr Maher suggested to Mr Chandratilake that it would be a good idea to have a meeting with the State Manager, Ms Rowe, who was on leave at the time. Such a meeting was, however, never held.
Mr Mallawarachchi gave evidence that after Mr Maher did not meet him on the Wednesday evening as arranged he tried to get to see Diane Rowe to discuss the matter with her. Ms Rowe was on leave and on Friday 19 May he saw John Rodda who was Acting State Manager at the time. Mr Mallawarachchi told Mr Rodda that Mr Chandratilake had a personal grudge against him. This was because Mr Mallawarachchi would not work overtime without pay and that he'd had some arguments on several occasions about being underpaid. He told Mr Rodda that he had proof that Mr Chandratilake was stealing money from the company and gave him the names of four or five co-workers who could provide evidence of this. Mr Rodda said that he thought that the General Manager should be present at the conversation. The General Manager was not present so he had another person sit in on the meeting.
Mr Mallawarachchi told Mr Rodda and the other person what Mr Chandratilake allegedly did, namely putting money into accounts, overpaying people then getting them to repay Mr Chandratilake personally. Other people had told Mr Mallawarachchi what was happening. Mr Rodda said that these were serious allegations and Mr Mallawarachchi said that he stood by them. Mr Mallawarachci said that he had all the relevant papers and that he and his brother would co-operate with the inquiry. Mr Rodda thanked Mr Mallawarachchi for coming forward and telling them of this and said that he would have to speak to others about his job and get back to Mr Mallawarachchi. Mr Mallawarachchi said that he went home and then left to work at Myer.
When he arrived home from work there had been a telephone message from Mr Rodda to tell him not to worry and that he could continue in his job. Mr Mallawarachchi said that he spoke to Mr Rodda the next day and Mr Rodda said that the management was very grateful to him. Mr Rodda said not to worry about his job, to disregard the letter of termination and to start work again on the following Monday. Mr Rodda said to Mr Mallawarachchi that he told Mr Chandratilake that he had overruled him. Mr Mallawarachchi said that after ringing Mr Rodda on the Saturday he worked on the Sunday. On the Monday, he did the vacuuming and turned up for work on the Monday evening. Mr Chandratilake came up to him and said "I know you had a meeting with Rodda. You don't come to work tomorrow." Mr Mallawarachchi said "No, Rodda said I'm working" but Mr Chandratilake insisted that his employment was terminated. Mr Mallawarachchi then rang Mr Rodda that evening who said "Sorry, I have to go back on my word and the decision to terminate stands". Mr Rodda told Mr Mallawarachchi that his decision was overruled by other managers.
Mr Rodda gave evidence that at the meeting on the Friday he and Mr Mallawarachchi talked over a number of issues. Mr Mallawarachchi made serious allegations against Mr Chandratilake. Mr Mallawarachchi also felt that he was being victimised by being moved to vacuuming. Mr Rodda told Mr Mallawarachchi that he would take it to the Managing Director and the Chairman of the Board. Mr Rodda then spoke to the Chairman and the Managing Director of the respondent. He made it clear to them that the accusations were of a criminal nature and that charges should be laid if proved. The Chairman and Managing Director investigated the matter over the weekend and by Monday morning they said that they couldn't find any validity in the allegations and that the termination was to stand. Mr Rodda said that he spoke to Mr Mallawarachchi on a couple of occasions and once to a lady at Mr Mallawarachchi's house. He remembered saying that if there was any validity to the allegations then the termination would be halted. He couldn't remember the words he used. However, after the investigation, the termination stood. Mr Rodda said that he couldn't truthfully say whether or not he told Mr Mallawarachchi that his termination no longer stood. He also doesn't know if he discussed the matter with Mr Maher. His evidence was that he doubted that he would have said that the termination would no longer proceed. It was clear from Mr Rodda's evidence that he was more concerned about the allegations made against Mr Chandratilake and the implications for the company than he was about Mr Mallawarachchi's termination of employment. That is only natural, because the allegations made by Mr Mallawarachchi were of a very serious nature.
Mr Maher gave evidence that close to 22 May he spoke to John Rodda who said that he was offering Mr Mallawarachchi his job back. Mr Maher found out later that this had fallen through.
I find on the evidence that Mr Mallawarachchi was told by Mr Rodda that the termination of his employment no longer stood, and that he was subsequently told by Mr Rodda on 22 May that that decision had been overruled. Evidence was given at the hearing of this matter that some time prior to Mr Mallawarachchi's termination some anonymous allegations had been made involving tax fraud and immigration fraud against Quirk Corporate Cleaning in general and Mr Chandratilake in particular. Those allegations were extensively investigated by both the Immigration Department and the Taxation Office and were found to be unsubstantiated. Evidence given by the respondent's management was that the substance of the allegations made by Mr Mallawarachchi to Mr Rodda was basically the same as the allegations which had been made previously. For this reason, it was not necessary to conduct another full scale investigation into Mr Chandratilake's behaviour. He had already been cleared by the relevant authorities on an earlier occasion. I should say that there was no evidence before this Court that Mr Chandratilake has behaved at all improperly in relation to taxation or immigration matters.
THE CREDIBILITY OF THE WITNESSES
The two main witnesses involved in this hearing, Mr Mallawarachchi and Mr Chandratilake, each gave evidence in a clear and forthright manner. There was nothing about the demeanour of either witness which would cause me to doubt the truth of what they were saying. It is clear, however, that there was a history of some hostility between the two men. Based solely on their demeanour, I was unable to simply accept or reject the evidence of either one of them. This Court was faced with a direct conflict of evidence on a number of points. Mr Chandratilake stated that he warned Mr Mallawarachchi on a daily basis about problems with his work performance. Mr Mallawarachchi said that he was never warned about his work performance. Faced with this direct conflict of evidence, I suspect that the truth lies somewhere in between these two positions. If Mr Mallawarachchi's performance was as bad as it was made out to be by Mr Chandratilake, I consider it unlikely that he would have remained in his employment for a full six months.
WAS THERE A BREACH OF SECTION 170DC?
Under Section 170DC of the Act, an employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless the employee has been given an opportunity to defend himself or herself against the allegations made. Because of the provisions of Section 170EDA, the applicant carries the onus of proof in relation to this matter. Given my findings in relation to the credibility of the witnesses, I am left in some doubt as to whether or not Mr Chandratilake in fact warned Mr Mallawarachchi on a regular basis about his work performance. Even on Mr Chandratilake's evidence, however, when the decision to terminate Mr Mallawarachchi's employment was made, Mr Chandratilake simply handed Mr Mallawarachchi the termination letter and there does not seem to have been any fair opportunity for Mr Mallawarachchi to respond to the allegations made against him. Further, even if Mr Mallawarachchi did receive the warning letter as alleged by Mr Chandratilake, the matters set out in the letter dated 7 May 1995 were of such a general nature as to not provide a reasonable opportunity for Mr Mallawarachchi to know what was being alleged against him. Further, based on Mr Mallawarachchi's actions in rushing straight to the union on the other two occasions on which Mr Chandratilake's actions caused him grounds for concern, I consider it more likely than not that if he had received a warning letter he would have gone straight to the union. He did not do this on or about 8 May. In these circumstances, I find that Mr Mallawarachchi was not given a reasonable opportunity to defend himself against the allegations made.
WAS THERE A VALID REASON FOR THE TERMINATION?
Quirk Corporate Cleaning bears the onus of proving that there was a valid reason for the termination connected with the employee's capacity or conduct within the meaning of Section 170DE. The respondent states that Mr Mallawarachchi's work performance was so poor as to justify termination. It is clear even on Mr Mallawarachchi's own evidence that he did not finish the vacuuming tasks assigned to him from 1 May 1995. However, Mr Mallawarachchi was given very little training in how to carry out these tasks. He had only been doing the vacuuming job for one week when he received the letter of termination. Maggie Fung, an experienced cleaner, gave evidence that it took her three or four weeks of working at the vacuuming job before she was able to finish what was required within the two hours allotted to her. In these circumstances, I don't consider that it was unreasonable of Mr Mallawarachchi to refuse to do unpaid work beyond the two hours for which he was paid. Therefore, taking into account:
(a)that Mr Mallawarachchi had only been working at the vacuuming job for a period of one week when the decision to terminate his employment was made,
(b)that Mr Mallawarachchi was given very little training, and
(c)that Mr Rodda had apparently told Mr Mallawarachchi that he had overruled the decision to terminate his employment
I consider that the termination was harsh, unjust or unreasonable within the meaning of subsection (2) of Section 170DE.
REMEDY
Pursuant to Section 170EE of the Act, reinstatement is intended to be the primary remedy. It was strongly argued on behalf of the respondent that because of the allegations made by Mr Mallawarachchi against Mr Chandratilake reinstatement in the Myer city store would be impracticable. Mr Mallawarachchi gave evidence that he had no problems working with Mr Chandratilake if he were to be reinstated to the Myer city store.
It was clear from the evidence and from the demeanour of the two main witnesses in the hearing that there was a considerable degree of hostility between the two men. Because of this and in particular because of the extremely serious allegations Mr Mallawarachchi made against Mr Chandratilake I consider that it would be impracticable to reinstate him to his previous position in the Myer city store. The respondent, however, is a very large cleaning contractor and I consider that it would not be impracticable for the respondent to appoint Mr Mallawarachchi to another position within the Perth central business district.
Under the provisions of Section 170EE(1)(b)(ii), if the Court makes an order reinstating an employee it must make an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination. Mr Mallawarachchi's evidence was that he commenced part time employment with Myer some time before his employment with the respondent was terminated. If his employment with the respondent had not been terminated, he would have continued to work for Myer and to work for Quirk Cleaning. In these circumstances, I consider it appropriate to make an order for the payment of remuneration lost at the rate of $312.49 per week from the date of termination until the date of reinstatement. I therefore make the following orders:
Within 14 days of the date of this order, the respondent reinstate the applicant by appointing the applicant to another position within the Perth city area on terms and conditions no less favourable than those on which the applicant was employed immediately before the termination and
Within 14 days of the date of this order, the respondent pay compensation to the applicant at the rate of $312.49 per week between the date of termination and the date of reinstatement.
I certify that this and the preceding 15 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate
Date:
Representative for the applicant: Ms J Freeman, Industrial Officer,
Australian Liquor, Hospitality &
Miscellaneous Workers' Union
Representative for the respondent: Ms D Rowe, State Manager of
Quirk Corporate Cleaning Australia
Pty Ltd
Hearing date: 3 & 4 October 1995
Judgment date: 1 November 1995
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