Wilki v Pioneer Concrete Pty Ltd
[1995] IRCA 605
•17 October 1995
C A T C H W O R D S
INDUSTRIAL LAW - termination of employment - redundancy - failure to consult with employee or Union resulted in termination being harsh unjust or unreasonable.
INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE
WILKI -V- PIONEER CONCRETE PTY LTD
No. SI1206/95
JUDICIAL REGISTRAR: L FARRELL
PLACE: ADELAIDE
DATE: 17 OCTOBER 1995
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA REGISTRY )
No. SI1206 of 1995
B E T W E E N:
MICHAEL WILKI
Applicant
AND
PIONEER CONCRETE SA PTY LTD
Respondent
MINUTES OF ORDER
BEFORE: JUDICIAL REGISTRAR L FARRELL
PLACE: ADELAIDE
DATE: 17 OCTOBER 1995
THE COURT ORDERS THAT:
The Respondent to pay the Applicant the sum of $11,653.00 within 21 days of today’s date.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA REGISTRY )
No. SI1206 of 1995
B E T W E E N:
MICHAEL WILKI
Applicant
AND
PIONEER CONCRETE SA PTY LTD
Respondent
BEFORE: JUDICIAL REGISTRAR L FARRELL
PLACE: ADELAIDE
DATE: 17 OCTOBER 1995
REASONS FOR JUDGMENT
This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims compensation, he does not seek reinstatement.
The Applicant was employed for twenty three and a half years as a Concrete Batcher by the Respondent. His employment was terminated on 2 June 1995 by Mr Shattock, Production Manager. At the end of his working day the Applicant was told that he was redundant and he was handed documents relating to that.
The Applicant’s employment was governed by the Concrete Batching Plants Award 1985. That Award contains the standard clause relating to Termination, Change and Redundancy. The Applicant was paid the Award minimum on termination of his employment.
There was no consultation with the Applicant prior to the termination of his employment. He had no warning from the Respondent that his employment was to be terminated.
Mr Shattock gave evidence of having had a telephone conversation with a Union Official from the Union of which the Applicant was a member on the day of the Applicant’s dismissal. He advised the Union Official of the necessity to make a job redundant and that Mr Wilki would be dismissed on that day. Mr Shattock’s evidence was that the conversation took about two minutes and that the Union Official made no complaint.
Mr Shattock gave evidence that the reason the Applicant was not consulted about his impending redundancy was that the Company considered sabotage a possibility. I found this evidence astounding in light of his concession that in his twenty three and a half years of service the Applicant had no record of any misconduct.
The Respondent selected the Applicant for redundancy by means of a sixty points selection criteria by which he was compared with the other batcher.
Whilst I have some reservations about the evidence given by the Respondent’s witnesses regarding the selection process, on balance I accept that the process was done honestly and contained relevant factors to determine the least skilled batcher.
In my view the Respondent has failed to meet its Award obligations to discuss the impending redundancy with both the Union and the Applicant. That failure in my view renders the termination of the Applicant’s employment harsh unjust and unreasonable. There is no way that it can be said the Applicant’s dismissal was inevitable if proper discussions had taken place.
I also regard the manner in which the Applicant was dismissed, especially given his length of service and his good record
, as harsh unjust and unreasonable.
I therefore award compensation to the Applicant in the sum of $11,653.00.
I certify that this and the preceding page are a true copy of the reasons for my judgment.
DATE OF HEARING : 26 & 27 September 1995
FOR THE APPLICANT : Ms Condon
F.R THE RESPONDENT : Mr Tiggerman
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