Whimpress v Ki Export Abattoir Ltd
[1996] IRCA 382
•13 August 1996
This copy has been electronically compressed to single spacing and smaller font size to reduce transmission costs - page numbering will therefore differ from the original file copy.
DECISION NO: 382/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - whether Applicant a CASUAL EMPLOYEE - whether termination HARSH, UNJUST OR UNREASONABLE
INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170EE
WHIMPRESS V KI EXPORT ABATTOIR LTD
No.SA95/1764
JUDICIAL REGISTRAR : LJ FARRELL
PLACE : ADELAIDE
DATE : 13 AUGUST 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No.SA95/1764
B E T W E E N
AARON WHIMPRESS
Applicant
AND
KI EXPORT ABATTOIR LTD
Respondent
MINUTES OF ORDER
BEFORE : JUDICIAL REGISTRAR LJ FARRELL
PLACE : ADELAIDE
DATE : 13 AUGUST 1996
THE COURT ORDERS THAT:
The Respondent pay to the Applicant the sum of $9,400 within 21 days.
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 )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No.SA95/1764
B E T W E E N
AARON WHIMPRESS
Applicant
AND
KI EXPORT ABATTOIR LTD
Respondent
BEFORE : JUDICIAL REGISTRAR LJ FARRELL
PLACE : ADELAIDE
DATE : 13 AUGUST 1996
REASONS FOR JUDGMENT
This is an application pursuant to Section 170EA of the Industrial Relations Act. The
Applicant claims that his employment has been terminated unlawfully. He seeks reinstatement.
I was asked to determine whether the Applicant was excluded from the provisions of Part VIA Division 3 of the Act by virtue of Regulation 30B. I determined that issue in favour of the Applicant.
The Applicant was employed as a slaughterman by the Respondent at its Kangaroo Island Abattoirs. The Respondent paid him and regarded him as a casual slaughterman even though the award that governs the Applicant’s employment permits slaughtermen to be employed on a casual basis for only a limited time.
The Applicant was employed on a regular and systematic basis working 38 hours per week. This was the third season that the Applicant had worked for the Respondent. The length of the season which depends on stock availability was usually between five and a half months and seven months. The gap between the 1994-1995 season and the 1995-1996 season was less than 6 months.
In my view the Applicant had a reasonable expectation that his employment with the Respondent would continue throughout the 1995-1996 season, based on his previous experience working for the Respondent.
In my view the Applicant was not a casual employed for a short period of time; nor can it be said that he was employed for a specified period of time, as the length of the season varied from year to year.
The Applicant’s employment was terminated on 15 December 1995.
The Respondent asserts that the Applicant was dismissed on that day for failing to carry out proper procedures.
The Respondent had recently lost its United States Licence and the viability of the business was under threat. Regaining the licence could only be achieved by the slaughtermen adhering to proper procedures, some of which had never been practiced at this Abattoir before.
The Applicant had been performing legging duties for only a few weeks. He and other ‘leggers’ were required to use the blade of the knife rather that the handle, which had been the former practice.
Mr Derer, Supervisor, gave evidence for the Respondent as to what had occurred on 15 December 1995. In addition he had made notes.
His evidence can be summarised as follows:
that he had given a general warning to all leggers at 7.55am
that at 10am he saw the Applicant ‘handling out’
that the Applicant had said “sack me then”
he had explained the necessity of adhering to proper procedures, that this was an official warning and that he did not want to dismiss the Applicant for not doing his job.
he then spoke to the Union Delegate Mr Deece.
at 11.15am he again saw the Applicant ‘handling out’ and he asked the Applicant if there was any reason why he was ‘handling out’.
the Applicant had replied “Well sack me then”.
at 11.18am the Applicant was dismissed after which the Union Delegate was notified.
It is important to note that Mr Derer claimed these conversations all took place without the necessity for the chain to be stopped or for the Applicant to be taken away from his duties.
Mr Deece, the Union Delegate was not called to give evidence.
The Applicant gave evidence that he had not been present at any general warning at 7.55am, that he had not been spoken to at 10am, and that at about 11.15am Mr Derer had said that if he was seen ‘handling out’ again he was getting the sack, that he said “Are you going to sack me?” and that Mr Derer replied “Go” which both he and Mr Derer seemed to understand as meaning that the Applicant’s employment was terminated.
Mr Capper, a slaughterman employed by the Respondent gave evidence that he found it difficult to get out of the habit of using the handle of the knife instead of the blade.
In regard to the events of 15 December 1995 I preferred the Applicant’s evidence. Mr Derer’s demeanour suggested untruthfulness and I found him to be an unsatisfactory witness.
In addition the process recorded by Mr Derer in exhibit R3 that led to the dismissal of the Applicant on 15 December 1995 was quite different from the normal procedures adopted by Mr Derer in warning employees.
I accept the importance, particularly in the circumstances of this employer, of correct procedures being adhered to in the workplace.
The Respondent has quite clearly failed in its obligation to give the Applicant the opportunity to respond before proceeding to terminate his employment.
I think the practice of allowing supervisors to dismiss employees without any discussions with management is fraught with risks of a simple personality clash leading to the harsh dismissal of an employee.
I therefore find that the termination of the Applicant’s employment was unlawful.
In my view it is impracticable to reinstate the Applicant, the season is at an end and in my view, the Respondent has no obligation to employ the Applicant when its next season commences.
In my view compensation is the appropriate remedy. In assessing the amount of compensation that the Respondent should pay to the Applicant I have had regard to the likelihood of the Applicant’s employment coming to an end by lawful means.
I order the Respondent to pay to the Applicant the sum of $9,400 within 21 days.
I certify that this and the preceding 4 pages are a true copy of my Reasons for Judgment.
DATES OF HEARING : 12 APRIL 1996 & 11 JUNE 1996
FOR THE APPLICANT : MRS ROBINSON
FOR THE RESPONDENT : MR SANDERCOCK
0
0
0