Williams v Kirkman's Crane Trucks of Melbourne
[1994] IRCA 140
•23 November 1994
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - substitution of respondent’s name - no valid reason for termination - compensation - factors taken into account - annual leave, sick leave, long service leave, superannuation contributions and worker’s compensation insurance.
Industrial Relations Act 1988, s.170DE, s.170EE.
IAN ALEXANDER WILLIAMS -v- KIRKMAN’S CRANE TRUCKS OF MELBOURNE PTY LTD
NO. VI 1222 of 1994
Before: STAINDL JR
Place: MELBOURNE
Date: 23 November 1994
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1222 of 1994
BETWEEN:
IAN ALEXANDER WILLIAMS
Applicant
AND
KIRKMAN’S CRANE TRUCKS OF MELBOURNE PTY LTD
Respondent
MINUTES OF ORDER
23 November 1994 Judicial Registrar Staindl
THE COURT DECLARES:
That the termination by the respondent, as substituted, of the employment of the applicant contravened Division 3 Part VIA of the Industrial Relations Act 1988;
AND THE COURT ORDERS:
By consent that the name of the respondent be substituted by W.K. and C.G. Kirman Transport Pty Ltd.
That the respondent, as substituted, pay to the applicant compensation of $16,000.00.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1222 of 1994
BETWEEN:
IAN ALEXANDER WILLIAMS
Applicant
AND
KIRKMAN’S CRANE TRUCKS OF MELBOURNE PTY LTD
Respondent
EX TEMPORE REASONS FOR JUDGMENT - REVISED FROM TRANSCRIPT
23 November 1994 Judicial Registrar Staindl
About 18 years ago, on 1 July 1976, Ian Alexander Williams commenced employment with a company known as Weeks Transport Pty Limited. Although the ownership of this company changed hands in ensuing years Mr Williams remained with the company and its successors until 18 July 1994. The applicant is now aged 53 and prior to this employment he had worked for almost 10 years with Mayne Nickless. This is a most impressive employment history. The applicant was employed with the respondent as driver of a crane truck and received a glowing reference form his superior, Mr Bonner, following the termination of his employment.
During the current proceedings it was established through the evidence of Mr Shane Parsons that a company known as W.K. and C.G. Kirman Transport Pty Limited was in fact the applicant’s employer and not Kirkmans Crane Trucks of Melbourne Pty Limited; accordingly, I have given leave for the name of the respondent to be substituted by W.K. and C.G. Kirkman Transport Pty Limited. I should indicate that Mr Parsons gave evidence that he was the manager of both of these companies and following the luncheon adjournment he in fact appeared on behalf of both of these companies. He stated that he was so authorised to appear on behalf of these two companies.
On 18 July 1994 Mr Williams attended for work but was called into the office of the general manager. He was told that he had a bad attitude and that he had been abusive to customers. The applicant inquired as to which customers but was told that he could not be told their name. He was also told that his termination had nothing to do with the loss of a contract with VicRoads. I note that in an affidavit filed on behalf of the employer it is alleged that the applicant was dismissed for economic reasons as the employer had lost a contract with VicRoads. I accept he applicant’s evidence on this point and, indeed, accept his evidence generally.
I find that the applicant was not given a chance to respond to the allegations by the employer and accordingly the termination of his employment was harsh, unjust or unreasonable on this basis. I further find that the employer had no valid reason to terminate the applicant’s employment. Even if the employer’s contentions were correct, that is, that the termination was due to the loss of a contract with VicRoads the employer has not made out such a case.
Mr Lester from the Transport Workers’ Union who represented the applicant went to a great deal of trouble to demonstrate that the truck regularly driven by the applicant prior to the termination of the applicant’s employment was in almost constant use following the termination of his employment. This was shown by the evidence of Mr Malloy who now regularly drives the truck and further by documentary evidence consisting of Mr Malloy’s daily work sheets. Accordingly, in my view there was no valid reason for the applicant’s termination of employment and such termination was harsh, unjust or unreasonable on this basis.
Following a period of unemployment the applicant has now gained work although in effect on a sub-contract basis. When questioned on the subject of a remedy the applicant stated that he did not seek reinstatement because of the very deep distress that his termination had caused him and the difficulty and embarrassment of trying to resume a relationship of trust with his former employer. I understand such feelings on the part of the applicant and find that reinstatement is impracticable. Furthermore I take into account that any reinstatement was vigorously opposed by the employer.
The applicant seeks compensation and points to the loss of job security which now faces him together with loss of wages during his period of unemployment. The applicant’s wage over the first six months of 1994 was conceded to be about $16,000.00. This equates to $615.38 per week. The applicant was unemployed until 4 September 1994, a period of seven weeks. His loss of wages during this time is therefore $4,307.66. He was paid one week’s base wage of $452.35 in lieu of notice and I deduct this amount to give a figure of $3,855.31. It seems to me that the applicant is entitled to this amount.
I note that the period of notice provided to the applicant was far less than that provided in section 170DB of the Act but I take this into account in awarding an amount of compensation generally. The applicant should also be entitled to superannuation contributions of $20.11 per week during this seven week period, totalling $140.77.
During the period 4 September 1994 to date the applicant has earnt the sum of $6,822.00 by working as a sub-contractor driver. He has had to register a business name in order to do this and has accordingly incurred a cost of about $80.00. I deduct this amount to arrive at a figure of $6,742.00 over an eleven week period, or $612.91 per week as being his average weekly income. There is thus very little difference between this figure and the figure of $615.38 per week previously earn by the applicant.
However, there is a great deal of difference to the applicant between his former position and his position now. Previously he was in what he reasonably thought to be secure and certainly long-standing employment. He is now in a position where he has no job security. He works on a day-to-day basis and there is no guarantee of work the following day, the following week or month. He is not entitled to sick leave. He does not accrue long service leave or annual leave. He is not paid for public holidays. No superannuation is paid for him. He has to provide his own worker’s compensation insurance. Such benefits are substantial although difficult to quantify.
As noted previously the applicant is now aged 53 and has some problems with blood pressure. In his employment with the respondent he had accumulated 60 days’ sick leave; this was lost upon termination of employment. He now faces a ten year period in order to qualify for long service leave whereas he was already accruing it in his previous job.
In his job with the respondent, the applicant could have expected to have been paid for four weeks’ annual leave per year, to have received at least two weeks worth of public holidays per year, and about 0.7 of a week per year for long service leave. Based on the applicant’s pervious wage this would have been a figure in the vicinity of $3,000.00 - $4,000.00 per year (depending on whether the applicant’s base wage rate is used, or average wage rate). In addition, the applicant could have expected about $1,000.00 per year to be made for superannuation contributions on his behalf, by the Respondent. WorkCare payments would have been made for him.
Employment security was and is very important for the applicant. Based on his evidence, I think it is unlikely that he will gain secure employment similar to that which he was now lost. It is certainly most unlikely that he will ever again qualify for long service leave. He gave evidence of making some 20 to 30 phone calls and visiting between 17 and 20 transport companies to seek employment, as well as making some written applications for employment. He was told on many such occasions that his age was a significant factor in him not getting work.
In assessing the amount of compensation payable to the Applicant I take into account his loss of wages and superannuation contributions prior to him gaining work. These amounts (of $3,855.31 and $140.77 respectively) total $3,996.08. But taking into account all of the other factors mentioned above I assess the compensation payable to him as an amount which exceeds $16,000.00. Because of the provision of section 170EE, I am restricted to awarding an amount which does not exceed the amount the employee would have earned in a six month period. Accordingly, I am restricted to awarding an amount of $16,000.00 to the applicant and I order that amount to be paid to the applicant.
MINUTES OF ORDER
THE COURT DECLARES :
That the termination by the respondent, as substituted, of the employment of the applicant contravened Division 3 Part VIA of the Industrial Relations Act 1988;
AND THE COURT ORDERS:
By consent that the name of the respondent be substituted by W.K. and C.G. Kirman Transport Pty Ltd.
That the respondent, as substituted, pay to the applicant compensation of $16,000.00.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl.
Associate:
Dated: 23 November 1994
Solicitors for the Applicant:
Counsel for the Applicant:Solicitor for the Respondent:
Counsel for the Applicant:Mr Chris McLennan
Dates of hearing:
23 November 1994
Date of Judgment:
23 November 1994
0
0
0