Woodend v MacMAHON Contractors (WA) Pty Ltd
[1997] IRCA 222
•11 Jul 1997
DECISION NO:222/97
CATCHWORDS
INDUSTRIAL LAW -.TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - OPERATIONAL REQUIREMENTS
Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) Ss 170DC, DE(1), EA, EDA
Burke v Reander Pty Ltd, unreported, IRCA 454/96, Millane JR, 17 September 1996
Jobson v Allwest Print Pty Ltd, unreported, IRCA, 144/97, Boon JR, 3 April 1997
Kerr v Jeroma Pty Ltd (1996) 70 IR 469
Kennefick v Australian Submarine Corporation Pty Ltd (1996) 65 IR 366
Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370
Nicholson v Heaven and Earth Gallery Pty Ltd, (1994) 1 IRCR 199
Westen v Union des Assurances de Paris, unreported, IRCA 660/96, Madgwick J, 17 December 1996
WOODEND -v- MacMAHON CONTRACTORS (WA) PTY LTD
WI 1034 of 1997
Before : RITTER JR
Place : PERTH
Date of Judgment : 11 July 1997
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1034 of 1997
B E T W E E N:
PAUL ALBERT WOODEND
Applicant
A N D:
MacMAHON CONTRACTORS (WA) PTY LTD
Respondent
MINUTE OF ORDERS
11 July 1997 PERTH RITTER JR
THE COURT DECLARES AND ORDERS THAT:
The respondent terminated the employment of the applicant in contravention of sections 170DC and 170DE(1) of the Workplace Relations Act 1996.
Subject to order 3, the respondent is to pay to the applicant compensation in the sum of $2,702.34 within 14 days.
The amount that the respondent is to pay to the applicant in satisfaction of order 2 is less any sum required to be deducted therefrom by the respondent pursuant to the Income Tax Assessment Act 1936, and actually paid by the respondent to the Commissioner of Taxation with proof thereof to be served upon the applicant within 14 days.
There be liberty to apply as to the terms of this order.
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 )
WI 1034 of 1997
B E T W E E N:
PAUL ALBERT WOODEND
Applicant
A N D:
MacMAHON CONTRACTORS (WA) PTY LTD
Respondent
REASONS FOR DECISION
11 July 1997 RITTER JR
INTRODUCTION
This is an application under section 170EA of the Workplace Relations Act 1996 (the "Act") for a remedy in respect of the allegedly unlawful termination of the applicant's employment. The remedy sought is that of compensation. The applicant does not seek reinstatement. The application is opposed by the respondent, although it agrees that if the Court finds that the termination of employment was unlawful, then compensation rather than reinstatement is the appropriate remedy to consider. The hearing of the application raised the issues of whether section 170DE(1) and/or section 170DC of the Act had been contravened by the respondent.
The respondent presented its case first and called three witnesses. These were:
Mr Patrick Ellis, a mining area manager of the respondent;
Mr Adrian Horne, a mining projects manager for Australian Mine Management, which is a division of the respondent; and
Ms Janette Glasson, the employment manager of the respondent.
The applicant, who appeared in person, gave evidence in support of his application. With the consent of the respondent, he also tendered some documentary exhibits.
THE FACTS
The respondent is a contract mining company. Its main activities are to operate open-cut mining operations for various clients in Western Australia at different mine sites. The duties of Mr Ellis were to administer and manage a number of these projects, including the Woodie Woodie mine site. Woodie Woodie is a manganese mine site situated about 400 km east of Port Hedland in Western Australia.
The applicant was employed by the respondent on 24 January 1996, as a fixed plant fitter at the Woodie Woodie mine site. His employment primarily involved maintenance duties on the crusher and screening unit involving maintenance of equipment, servicing and lubrication. Mr Woodend is a qualified fixed plant fitter having served a five-year apprenticeship and obtained his trade qualification in 1980. There is no dispute that Mr Woodend's employment was terminated by Mr Ellis on behalf of the respondent on 23 November 1996.
The respondent submitted that its operational requirements provided a valid reason for Mr Woodend's termination of employment, in terms of section 170DE(1) of the Act. The respondent also submitted that section 170DC of the Act did not apply to the termination of Mr Woodend's employment as his employment was not terminated for reasons related to his conduct or performance. The respondent submitted that the operational requirement which led to the termination of employment of Mr Woodend was a large decrease in the mining activities that the respondent was required to undertake at Woodie Woodie.
At the time of the commencement of Mr Woodend's employment, the respondent was employed under a contract with Portman Mining to operate mining operations at Woodie Woodie. This contract was due to expire in July 1996. In the early part of 1996, Portman was negotiating with an adjacent mining lease holder by the name of Valiant Consolidated in relation to the sale of the Woodie Woodie mining lease.
Although the respondent operates other mining activities throughout the state, according to the uncontradicted evidence of Mr Ellis, Woodie Woodie was the only mine site where fixed plant fitters were employed by it. At Woodie Woodie both fixed plant fitters and mobile plant fitters were employed.
Pursuant to the respondent's contract with Portman Mining, the respondent excavated about 100,000 bank cubic metres of material per month. The ore portion of the excavation was taken to the processing plant where it was crushed, put in a benefication circuit, dumped in stock piles and then loaded on road trains for transfer to Port Hedland. There, the ore was loaded onto ships.
On 1 May 1996, Mr Mark Gifford, the registered mine manager of Portman at Woodie Woodie wrote to Mr Ellis. The letter advised that due to significant stock piles at the Woodie Woodie site and Portman's wharf facilities at Port Hedland, production from the crushing and benefication circuits would be suspended from 8 May 1996 until early July 1996. The letter said that a skeleton crew of staff would be required for care and maintenance on both the crusher and benefication plants and for the loading of road trains. However the letter advised that mining would not be suspended. The result of this letter was that there was a lesser amount of work to be done by those employed in Mr Woodend's section. Prior to the suspension of work, the crusher operated on a 24-hour basis, involving two teams who both worked 12-hour shifts. After the suspension of works, the hours of work were restricted to ten hours. There was also an alteration from a continuous roster involving a five-panel system where individuals worked for four weeks on and one week off to having simply four panels working four weeks on and then one week off. The effect of this was that one area of the operation was unmanned in the fifth week. Effectively, the change from a five-panel to four-panel roster involved a 20% work force reduction. Mr Ellis said that employees who were no longer required at Woodie Woodie were generally redeployed to other sites operated by the respondent. However, Mr Woodend was not in this category of employee, because there was no other site on which he could work as a fixed plant fitter.
As stated earlier, the contract with Portman was due to run out in July 1996, although negotiations were taking place between both Portman and the respondent with Valiant Consolidated. Mr Gifford sent a facsimile to Mr Ellis dated 5 July 1996, confirming the cessation of mining activities at Woodie Woodie as of that date. By the facsimile Portman gave the respondent permission to use the site for temporary storage of machinery and chattels. In addition, the respondent’s personnel were able to stay on at the site until suitable arrangements were made for their relocation or redeployment. The facsimile advised that the plant would continue to process until at least 15 July 1996 unless otherwise advised.
Mr Ellis also said that he and Mr Gifford agreed that the respondent could leave a mobile maintenance team on site to do some running repairs and maintenance on the respondent's equipment. It was also agreed that two personnel would remain on site to load road trains.
On 12 July 1996, Mr Ellis sent a facsimile to Mr Gifford and also Mr Paul Maroney of Valiant Consolidated. The letter confirmed that five named employees would remain on site for a few weeks until arrangements were finalised. They included Mr Ian Ryan and Mr Doug Bryce, who were listed as mobile plant maintenance. The facsimile said that equipment would be removed and demobilised as required and convenient. The processing plant was to be "mothballed" with gear boxes filled with oil, pumps flushed out, etc., in preparation for preservation or start-up at short notice as required.
In his evidence, Mr Ellis said that three of the five named employees were mobile plant mechanics. In addition to Mr Ryan and Mr Bryce, Mr Ellis mentioned a Mr Marc Zimmer.
Most of the remainder of the 35 employees who had been on site were redeployed by the respondent. However, Mr Woodend was stood down because there was no fixed plant equipment at the other sites operated by the respondent where he could be redeployed. Mr Ellis said that he understood that Mr Woodend's skills were limited to fixed plant maintenance. The effect of Mr Woodend being stood down was that whilst he remained technically an employee of the respondent, he was not working nor paid, unless he was taking annual leave.
After he was stood down, Mr Woodend had a conversation with Mr Ellis. There was a dispute between Mr Woodend and Mr Ellis as to the contents of this conversation, however it is not necessary to resolve the conflict. The result of the conversation was that Mr Woodend was returned to Woodie Woodie to do maintenance work. Mr Ellis said that this came about because Mr Woodend came to see him and explained that he was in a situation of hardship. Mr Ellis offered to have Mr Woodend do training as a service man at the Perth workshops of the respondent. However, this was rejected by Mr Woodend. It was then agreed that Mr Woodend would return to Woodie Woodie, even though he would be surplus to requirements, to keep him in remunerated employment, because of his hardship. Mr Woodend said that he was returned to the Woodie Woodie site because it was anticipated work at Woodie Woodie would recommence or the respondent would move to working on the adjacent mine of Valiant Consolidated, called Mike Mine. Whichever version of the conversation between Mr Woodend and Mr Ellis is correct, Mr Woodend did return to Woodie Woodie to perform maintenance work. This occurred in the week after 17 July 1996. An internal document of the respondent indicated that Mr Woodend's position at Woodie Woodie would then remain for a maximum of three weeks. This document was dated 23 July 1996.
I earlier mentioned that Portman Mining were considering the sale of the Woodie Woodie mining lease to Valiant Consolidated. By facsimile from a Mr Wayne Beaumont of Portman Mining to Mr Ellis dated 12 July 1996, Mr Ellis was advised that settlement of the sale of the Woodie Woodie mining lease by Portman to Valiant was expected to be concluded on 15 July 1996. Australian Mine Management were then involved in negotiations with Valiant to secure a contract to operate the mines at Woodie Woodie and the Mike Mine. Although there was a lack of specific evidence on this, it seems that during this period Mr Woodend remained working at Woodie Woodie despite the previous indication from Mr Ellis that he was to remain for a maximum period of three weeks. By letter dated 20 August 1996 from Australian Mine Management to Mr J S Barraclough, the general manager of Western Region of the respondent, Mr Barraclough was advised that the respondent had been awarded mining and processing contracts at Mike Mine and Woodie Woodie. The contracts were to commence on 26 August 1996 for six years duration.
After this, Mr Ellis said that "the entire crew", including Mr Woodend, was mobilised and commenced mining and processing at the Mike Mine operation. This was situated about 20 km from the Woodie Woodie mine site. Mike Mine was mined at about the same rate as Woodie Woodie had been previously; that is 100,000 bank cubic metres per month. The mine was mined and processed through the Mike Mine processing plant. Mr Ellis said that this continued for a period of just under three months until the pit was depleted. The Mike Mine pit was then abandoned and the respondent was scheduled to re-commence mining at the Woodie Woodie site on 3 December 1996.
However, in the week leading up to 22 November 1996, Mr Ellis was advised that Valiant had not made the sales of manganese that they had anticipated and so that therefore production levels were required to be halved from that which was anticipated; ie: 100,000 bank cubic metres to 50,000. A memorandum from Mr Gary Comb, the chief executive officer of Australian Mine Management, to Mr Ellis dated 22 November 1996 made mention of the production level of 50,000 bank cubic metres per month.
Mr Ellis said that as a result of this, he had to reassess the respondent's manning levels. He said it was a similar situation to that of July 1996, when most of the people who were on site were redeployed to other sites. Mr Ellis said that given the halving of production levels, he made a decision to reduce the maintenance personnel from two to one. In part, this was because, at the reduced production levels, the people who were operating, for example, the crusher, could also maintain it. Mr Ellis decided that it was necessary to have only one additional service person available for lubrication and maintenance. Therefore, one person had to be "dropped off" from the maintenance team. At the time the two people in maintenance were Mr Ryan and Mr Woodend. Mr Ellis made the decision to terminate the employment of Mr Woodend.
Mr Ellis was asked, when examined in chief, the reasons why he decided on Mr Woodend as against Mr Ryan. He said that "the main reason was that Mr Ryan was multi-skilled. He was able to operate a loader in a production situation. He had a C-class licence and was trained up as an operator. He was a skilled service person. He was also able to operate the crusher and he was also able - to a certain extent he was showing a lot of interest in learning to operate the benefication side of the plant as well, so he was a skilled all-rounder that could be used in any application". Mr Ellis was also asked whether there was a consideration of the skills in doing the maintenance work of Mr Woodend and Mr Ryan. Mr Ellis said "that was part of my consideration, because you have to have skills in operating then, and I didn't have a real problem with either of them in the skills in the maintenance-only function, which had now become redundant. The reason that Mr Woodend wasn't selected was because he'd never showed any interest in wanting to be trained up on the crusher. He wasn't able to operate a loader and he didn't show any interest in being a service person". Mr Ellis also confirmed that Mr Woodend was terminated because there was no possibility of redeployment of him to other sites. This was because the other sites did not have any work for a fixed plant fitter.
After making the decision to terminate Mr Woodend's employment, Mr Ellis arranged for Mr Woodend to come and see him at his Perth office on Saturday, 23 November 1996. This was communicated to Mr Woodend on 22 November 1996. On that date, Mr Woodend was on a one week rest and recreation leave break in Perth. Mr Ellis said that he then explained to Mr Woodend what was happening at Woodie Woodie and the reason why his services were terminated. Mr Woodend was also given the necessary paperwork. Mr Woodend was given a notice of termination dated 23 November 1996. This stated that the reason for termination was "reduction of labour at Woodie Woodie due to a shortage of work". The document also recorded that Mr Woodend was to be paid in effect for one week, in lieu of notice.
Mr Woodend asserted that Mr Ellis also told him that Mr Ryan's employment was to be terminated. Mr Ellis had not recollection of this. I do not accept that this was said by Mr Ellis. It was not correct that Mr Ryan was to be terminated and I can see no reason why Mr Ellis would have given inaccurate information about this to Mr Woodend.
The respondent conceded that Mr Woodend was the only employee whose services were terminated at this time. All other employees who were to no longer work at Woodie Woodie were redeployed.
Mr Ellis gave evidence about the work at Woodie Woodie after the termination of Mr Woodend's employment. Documents tendered by the respondent showed that from 11 October 1996 to 9 December 1996 and then to 12 March 1997, there was a reduction in the Woodie Woodie work force from 39 to 32 and then 20 people respectively.
The scheduled recommencement date at Woodie Woodie was 3 December 1996. The work force moved across to Woodie Woodie for the commencement of mining operations. Works commenced at Woodie Woodie on 3 December 1996 but only continued until 13 December 1996. At that time, Valiant suspended works because they did not have sufficient sales to justify further excavation when stockpiles were full. Therefore there was no work at the site from 14 December 1996 to 15 January 1997. On 15 January 1997, the mine operated again until 5 February 1997. At that time, the operation was again suspended. The operation was still under suspension on the date when Mr Ellis gave his evidence, being 21 March 1997. The remaining employees of the respondent at Woodie Woodie had been stood down or were redeployed during this period.
This is the general factual background within which the application of Mr Woodend needs to be considered. However, before doing this, I wish to consider two specific issues raised by Mr Woodend.
MR HORNE'S MEMORANDUM AND EVIDENCE
Mr Horne sent a memorandum to Mr Ellis dated 26 November 1996 concerning the Woodie Woodie mine site. The memorandum mentioned a number of issues about the site. In the memorandum, Mr Horne made mention of Mr Woodend's termination. The memorandum said:-
"In future, AMM must be notified of all proposed changes in personnel (eg Paul Woodend - I agree with your decision, but I would have liked to know prior to the event to avoid any potential embarrassment)."
In the memorandum “AMM” meant Australian Mine Management.
In his evidence, Mr Horne said that the embarrassment referred to Australian Mine Management not knowing that Mr Woodend was not going to be required to be flown back to the site. Australian Mine Management not knowing this meant that they could not try and make maximum use of the flight.
Mr Horne also said in his evidence that he agreed with the decision that only one plant fitter was required and that given that Mr Ryan had a greater range of skills than Mr Woodend, "his utility value was a little bit higher than" that of Mr Woodend.
When cross examined, Mr Horne indicated that the decision of which personnel were to remain was largely that of the respondent rather than Australian Mine Management. However, he said that if Mr Ellis had made the decision to continue the employment of Mr Woodend and not Mr Ryan, he could have "quite happily lived with that". It was then put to Mr Horne that Mr Woodend would not therefore have been surplus to requirements. Mr Horne said that if Mr Ellis had sent Mr Woodend back to site, he would have been "happy to live with that". I then asked whether this was in addition to Mr Ryan or instead of him. Mr Horne replied "instead of him".
In either his evidence or submissions, Mr Woodend claimed that Mr Horne indicated that both Mr Woodend and Mr Ryan could have been appropriately accommodated as employees at the Woodie Woodie site. However, the above review of Mr Horne's evidence shows that this is not the case. The thrust of his evidence was that he agreed with the assessment that only one of the fitters was required. He also agreed that Mr Ryan had the edge on Mr Woodend, because of his greater range of skills. However, if the decision had been made for Mr Woodend to continue employment in place of Mr Ryan, he would have been quite happy with that.
THE NEWSPAPER ADVERTISEMENT
Mr Woodend tendered in evidence an advertisement placed by the respondent in the West Australian newspaper on 30 November 1996. The advertisement mentioned that it was for fixed plant fitters, heavy duty mechanics and service persons. Mr Woodend suggested that this advertisement indicated that there was scope for the continued employment of himself by the respondent, in a new position. However, Mr Ellis' evidence suggests that this was not so. Whilst he was not involved in placing the advertisement, Mr Ellis indicated that the reference to a fixed plant fitter in the advertisement may have been in error as the advertisement went on to state that the applicants must have extensive experience on large Caterpillar dozers, dump trucks and excavators. These are mobile rather than fixed equipment. Mr Ellis said that at the time the advertisement was lodged, the respondent was awaiting the award of some major projects. An additional person had been employed in the personnel department whose primary task was to get on the books of the respondent applications from as many trades people as they could so that if a job started up, they were ready to go. The advertisement was not for an employee at Woodie Woodie. Mr Ellis said that he was not aware of the advertisement at the time, but he was of the view that it was just a general advertisement to get applicants on the books of the respondent if the respondent was awarded a mining contract for the Tarmoola project, north of Leonora.
Mr Ellis, in re-examination, said that no people were interviewed or employed consequent upon the advertisement being placed on 30 November 1996.
In her evidence, Ms Glasson confirmed that the advertisement that was run on 30 November 1996 was for no particular site. A recruitment-advertising disbursement form of the respondent indicated that this position was for "all sites" in contra-distinction to each of the other positions mentioned on the form between 18 November 1996 and 22 February 1997. The number of positions advertised for during that time period was about 25.
Given the evidence of Mr Ellis and Ms Glasson, I am satisfied that the advertisement placed on 30 November 1996 did not indicate that there was a new position within the respondent for which Mr Woodend could have been employed.
VALID REASON FOR TERMINATION
I accept, from the evidence of Mr Ellis, that the reduced production requirements from the mine at Woodie Woodie meant that there was less need for labour at the mine site. I also accept that there was then only the need to employ one fixed plant fitter or serviceman at the mine site. However, this is insufficient to prove a valid reason for termination of Mr Woodend's employment. The respondent must go further and prove that there was a valid reason for deciding that the termination of Mr Woodend's employment was an appropriate response to the respondent's operational requirements; Kennefick v Australian Submarine Corporation Pty Ltd (1996) 65 IR 366, page 392. This includes there being not only a valid reason to reduce the workforce but also a valid reason for the selection of Mr Woodend as an appropriate employee to terminate.
I have earlier set out the reasons given by Mr Ellis for deciding that Mr Ryan should be retained and Mr Woodend terminated. It is clear from this that Mr Ellis did not consider another alternative, which was that Mr Ryan be redeployed and Mr Woodend retained at the Woodie Woodie site. The reason that Mr Woodend was not redeployed was because, as a fixed plant fitter, he could not work at any of the other sites where the respondent used mobile equipment. However, the same could not be said for Mr Ryan. Given the multiple skills that Mr Ryan had, as Mr Ellis outlined in his evidence, it is likely that he could have been redeployed. However, Mr Ellis seems to have not considered this alternative to the termination of Mr Woodend's employment.
The evidence of Mr Ellis as to why Mr Ryan was selected to continue in employment disclosed that the reasons involved Mr Ryan being multi-skilled and aspects relating to Mr Woodend's attitude. In the second category, Mr Ellis commented that Mr Woodend had not shown interested in wanting to be trained on the crusher and did not show interest in being a service person. With respect to these matters, I think the respondent has some difficulty in proving them. The allegations were disputed by Mr Woodend. Further, some support for his position can be gained from the references that were tendered on his behalf. These references were tendered without objection by the respondent. One reference was written by Mr Paul Ridley, a plant supervisor of the respondent. Mr Ridley said that he had known Mr Woodend for nine months and was his supervisor at Woodie Woodie. He stated that Mr Woodend was extremely diligent in all aspects of his work and was most impressive in his attention to detail when learning new tasks. The other reference was written by Mr Marc Zimmer, a maintenance supervisor of the respondent. This reference said that Mr Woodend had shown skill and ability in the repair of the crusher and benefication plant. The reference said that during the final stages of the project, Mr Woodend was given the opportunity to gain experience operating the site service truck and that Mr Woodend had taken this task with utmost vigour. These references do not appear to be consistent with the evidence of Mr Ellis and tend to undermine one of the reasons given for the selection of Mr Woodend as the employee to be terminated.
In addition to these issues, Mr Woodend was given no notice of his impending redundancy and there was no consultation with Mr Woodend as to whether there was any option but the termination of his employment.
In all of the circumstances I am not satisfied that the respondent has discharged its onus under section 170EDA of the Act and proved that there was a valid reason for the termination of Mr Woodend's employment, on the basis of its operational requirements. In making this finding, I have regard to authorities such as Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, Kerr v Jeroma Pty Ltd, (1996) 70 IR 469, Kennefick v Australian Submarine Corporation Pty Ltd, (1996) 65 IR 366, Jobson v Allwest Print Pty Ltd, unreported, IRCA, 144/97, Boon JR, 3 April 1997, Westen v Union des Assurances de Paris, unreported, IRCA 660/96, Madgwick J, 17 December 1996 and Burke v Reander Pty Ltd, unreported, IRCA 454/96, Millane JR, 17 September 1996.
SECTION 170DC
I have set out the reasons given by Mr Ellis for the selection of Mr Ryan ahead of Mr Woodend as the maintenance employee to remain at Woodie Woodie. It is clear that the reasons why Mr Woodend was not selected as the maintenance employee to continue included aspects of his conduct and performance. These were the matters relating to Mr Woodend's attitude, as referred to earlier. Section 170DC of the Act generally provides that an employer must not terminate an employee's employment for reasons related to their conduct or performance unless the employee has been given the opportunity to defend themselves against the allegations made. This section applies to a redundancy situation where one of the reasons why a particular employee is selected to be made redundant, are reasons relating to their conduct or performance; Kennefick page 371. This was the situation here. Clearly, Mr Woodend did not get the opportunity to answer to the allegations relating to his conduct or performance inherent in the beliefs held by Mr Ellis about his attitude. He did not therefore get the "fair go" which section 170DC demands; Nicholson v Heaven and Earth Gallery Pty Ltd, (1994) 1 IRCR 199 at page 210. The termination of Mr Woodend's employment was in contravention of section 170DC of the Act.
REMEDY
I have earlier set out that the parties were agreed that the appropriate remedy to consider was that of compensation. After his employment with the respondent ceased, Mr Woodend sought work as a fitter with other mining companies. The work sought was largely country work. This was because as Mr Woodend and his wife only owned one car, it would create logistical problems for them and their three children if Mr Woodend obtained city work. The applicant obtained employment with Fabcon Construction as a mechanical fitter at the Hedges gold plant in Dwellingup. This employment commenced on a full-time basis, according to the applicant's summary of facts, on 1 February 1997. Prior to that, he had three weeks' full time work with Fabcon Construction as a casual employee. This would therefore have commenced on about 10 January 1997. The work with Fabcon Construction continued until about 26 April 1997. At that time, Mr Woodend left his employment with Fabcon Construction because he was in the process of setting up his own business and going overseas. Mr Woodend said that the employment with Fabcon Construction was comparable to his employment with the respondent, in terms of the remuneration that he received.
In the circumstances of this case, given the evidence of the applicant's re-employment, consideration of the applicable compensation must be limited to the period up to and including 10 January 1997.
There is also a further limitation in that even if Mr Woodend had remained an employee at the Woodie Woodie site, he would have been again stood down in December 1996 because of the cessation of production at the site. Mr Ellis said that Valiant suspended works at the site after 13 December 1996 and all employees took a break from 14 December 1996 to 15 January 1997. Prior to 15 January 1997, Mr Woodend had commenced employment with Fabcon Construction. I am therefore satisfied that the only period for which Mr Woodend could be compensated is the period from the date of the termination of his employment to 13 December 1996. This is a period of about three weeks. Mr Woodend was paid, in lieu of notice, for one of these weeks. Therefore, the compensation to be paid to Mr Woodend should be the equivalent, in my opinion, of two weeks' pay.
The respondent tendered through Mr Ellis copies of Mr Woodend's pay slips for the period 11 February 1996 to 17 November 1996. This disclosed total gross earnings of $54,046.74 for this period. The period was one of 40 weeks. Therefore, Mr Woodend’s average gross pay per week was $1,351.17. Two weeks' pay at this rate is $2,702.34. The respondent will be ordered to pay to Mr Woodend compensation in this amount.
The respondent argued that the amount of compensation should be reduced further because Mr Ellis gave evidence that the hours that Mr Woodend worked would have been reduced in the period following the termination of his employment because of the reduced production levels. Despite this evidence, I am satisfied that it is appropriate to apply the general average of Mr Woodend's wages throughout the total period of his employment. This is because there was a fluctuation of hours worked and pay received during this period. It is not simply the case that a weekly figure has been applied that was necessarily higher than the amount that Mr Woodend may have earned to 13 December 1996.
The respondent also argued that the amount of compensation should be reduced because Mr Woodend had not taken all reasonable steps to mitigate his loss. I am not persuaded that this is so. In my opinion, Mr Woodend took reasonable steps to obtain alternative employment, as he outlined in his evidence, as set out above.
I will make an order that the respondent have 14 days to pay the amount of compensation ordered.
ORDERS
The respondent terminated the employment of the applicant in contravention of sections 170DC and 170DE(1) of the Workplace Relations Act 1996.
Subject to order 3, the respondent is to pay to the applicant compensation in the sum of $2,702.34 within 14 days.
The amount that the respondent is to pay to the applicant in satisfaction of order 2 is less any sum required to be deducted therefrom by the respondent pursuant to the Income Tax Assessment Act 1936, and actually paid by the respondent to the Commissioner of Taxation with proof thereof to be served upon the applicant within 14 days.
There be liberty to apply as to the terms of this order.
I certify that this and the preceding eighteen (18) pages
are a true copy of the reasons for decision of
Judicial Registrar Ritter.
Associate:
Date: 11 July 1997
APPEARANCES
Applicant: The applicant appeared in person.
Counsel for the Respondent: Mr A Randles:
Chamber of Commerce and Industry (WA)
Date of hearing: 21 March and 16 May 1997
Date of judgment: 11 July 1997
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