Kenneth Dean Hockey and Multiskip Pty Limited [1995] IRCA 556

THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA No WI 439 of 1994 WESTERN AUSTRALIA DISTRICT REGISTRY B E T W E E N : Kenneth Dean Hockey Applicant A N D : Multiskip Pty Limited Respondent REASONS FOR JUDGMENT - DELIVERED EX TEMPORE This matter was heard in Perth on 5 May 1995 and an ex tempore judgment handed down at the conclusion of proceedings. The respondent was ordered to pay the applicant the sum of $9,000.00 as it was found on the evidence that the applicant had been denied procedural fairness under the terms of the Industrial Relations Act. The respondent requested written reasons and the Court granted a stay in the payment of the sum of $9,000.00 until the receipt by the parties of these written reasons. The ex tempore judgment was brief but in order to assist the parties more detail as to the reasons behind the decision to award the sum of $9,000.00 to the applicant will now be provided. By application dated 19 October 1994, the applicant claimed compensation for unlawful termination and at the hearing on his behalf it was alleged by Ms Stanton, Section 170 DF had been breached as the applicant was discriminated against because he was not a member of a union and further that Section 170 DE (1) had been breached as the respondent had demonstrated no valid reason for the termination. The respondent operated a waste disposal business comprising three rubbish trucks and three driver/operators. The applicant commenced work on a casual basis at the end of March 1994 and some two weeks later was made a permanent employee. The applicant stated that eleven weeks after he commenced employment he was dismissed. On Thursday 12 May 1994 after he brought his truck back to base, he was told by the manager Mr Brunning that his services would no longer be required. At the time the applicant was told that the reason he was being stood down was that the truck he was using was being stood down and would not be used for business. The basis of the termination apparently was redundancy. The applicant ceased work on that day and despite vigorous searching was unable to find suitable employment for some time thereafter. Certain discrepancies in relation to post termination employment were corrected at the hearing and the applicant explained he had no intention to mislead. The applicant stated that prior to the dismissal, on 11 May 1994, he had had discussions with Mr Brunning about not visiting certain sites for rubbish collection as there was union trouble and as the applicant was not a member of a union he was not to visit certain sites until the matter had been cleared through Mr Brunning. The applicant stated he was told that all drivers would probably have to join the union and that as a matter of convenience the company should send union ticketed drivers to closed shop sites as a matter of principle. At the time of the dismissal the applicant stated that he would join the union if that meant keeping his job to which Mr Brunning replied that the union issue " was not the whole reason for the termination". On behalf of the applicant the Court heard evidence from Mr David Martin who advised that at all times prior to the applicant's dismissal he was employed by the respondent as a driver and that shortly before the applicant was dismissed, the respondent took on a new employee. Further, Mr Martin stated in his affidavit that when he went to work on 14 May 1994 he discussed the applicant's dismissal with Mr Brunning who said words to the effect that the applicant had been sacked because he did not want to join the union. Mr Martin also deposed that the vehicle that the applicant had been driving for the respondent was not stood down after the applicant was dismissed and that he had taken over driving that truck for a period of time and it was still in use when he resigned some time later. On behalf of the respondent the Court heard evidence from Mr Keith Sydney McCawley who stated that he was the Managing Director of the respondent and in about August 1993 the respondent added to its business ventures, in the area of a commercial front-end loading disposal business. It was that business which employed the applicant. The witness stated that over approximately 1 year the respondent lost between $25,000.00 and $30,000.00 and that the decision to sell the business was made about late April, early May 1994. The witness stated that the decision was made to take one of the front-end loaders off the road which meant that one of the drivers would be made redundant. The witness stated that the choice of which driver was left to Mr Kevin Brunning. Subsequently negotiations for the sale of the commercial front-end loading disposal part of the respondent's business were entered into in about early May 1994 and the business was finally sold on 1 August 1994. The witness stated at the time of the dismissal the respondent did not have the capacity to employ the respondent in any other part of its business. The Court also heard evidence from Mr Kevin Brunning who stated that he was employed by the respondent as Operations Manager commencing in 1992 and that he finished on 2 December 1994. Mr Brunning stated that at the time of employing the applicant he was aware that the applicant was not a member of a union. It appears that at a meeting in early May 1994 that the witness had with Mr McCawley, it was decided that it would be best for the respondent that one of the drivers of the front-ended loaded trucks would be released. Mr Brunning decided that it was the applicant who would be terminated. The witness stated that he did not take into consideration the issue as to whether the applicant was a member of the Transport Workers' Union in considering whether to terminate him. Mr Brunning stated that at the time of the applicant's dismissal the respondent had entered into negotiations with another disposal company for the sale of the respondent's business, which was subsequently completed on 1 August 1994. It appears that after the applicant's dismissal, the two remaining drivers worked longer hours. Mr Brunning testified however that the fact that the applicant had been terminated meant a considerable saving to the respondent. During the hearing of this matter there was certain evidence produced that in the opinion of Mr Brunning the applicant lacked certain physical attributes necessary to be a driver of a waste disposal truck. It is clear that these deficiencies were not brought to the attention of the applicant either during the course of his employment or at the termination. CONCLUSION The respondent stated that he commenced business in the venture in which the applicant was employed in August 1993 and that as a result of an on-going loss the business was sold some 12 months later. The applicant was employed some 7 months after the respondent commenced that particular business and after commencing as casual was made permanent. Nothing was indicated to the applicant that the employer's business was not viable as alleged and the combining factors of the forthcoming sale of the business and the union intervention must all be considered as playing a part in the termination of the applicant's employment. The Court heard no evidence that staff numbers and imminent redundancies were discussed with the in-coming purchaser of the business in order to protect the employment of staff members. On behalf of the applicant in the case of Budget Couriers Equity Management -v- Beshara(1993) AILR 324 where it was stated as follows: "... in approaching matters alleging that a dismissal is harsh, unjust or unreasonable, it is not enough for an employer to establish that the circumstances are those of a genuine redundancy. The dismissal must be tested against substantive and procedural fairness. The obligations to consult, to provide adequate notice and to apply objectable selection criteria in determining which employee is to be made redundant are factors in determining whether a dismissal is harsh, unjust or unreasonable. " It is well established that provisions of the Industrial Relations legislation apply to redundancy situations. I am of the view that in this case, on the basis that the respondent is correct in alleging that the reason for termination was a redundancy, it is clear that the applicant has been denied procedural fairness. It was arguable that the respondent did not have a valid reason for the termination in light of the existence of other factors, that is, the forthcoming sale of the business and existing difficulties with the union. The respondent at no stage discussed the forthcoming termination/redundancy with the applicant - the decision to terminate was made unilaterally.

The respondent relied on Gromark Packaging v Federated Miscellaneous Workers Union of Australia (WA Branch) (1992) 46 IR 98 heard before the Industrial Appeal Court of WA, where that court stated that redundancy having been found, the remaining issues before the Commissioner was whether selection of the applicant for dismissal was unfair. On the authority of Australian Shipbuilding Industries the Commissioner held that in cases of redundancy, the evidentiary onus is on the party alleging unfairness in the selection or termination of employment to show by specific comparison with other employees that the selection was unfair. To my mind that authority is distinguishable as in the case at hand it has not been conclusively proved that redundancy was the sole issue for the termination. Further, from the evidence before the Court, the truck which the applicant used to drive was used by the respondent by other employees after the termination.

The respondent also relied on the case of R v Flight Crew Officers Industrial Tribunal: Ex-parte Australian Federation of Air Pilots (1971) 127 CLR 11. There the Tribunal in the first instance stated: the question of the respondent to terminate on account of redundancy. This essential issue required the Tribunal to hear evidence of the nature described in the notification. The issue involved is really whether a management decision pertaining to the retrenchment was wrong and ought to be corrected. The question was posed where is the authority of the Tribunal to inquire into the decision of the respondent. It was stated that the Tribunal was really being asked to assume that authority quite gratuitously without any foundation for so doing and then to manufacture, as if it were, an industrial matter from the result of an inquiry. That was found to be insupportable.

The High Court upheld that analysis of the matter by the Tribunal at the first instance.

On consideration of the evidence before the Court I am of the view that division three of part IV A of the Industrial Relations Act was breached - and these provisions do apply to redundancies. I find the applicant in the first instance was not accorded procedural fairness in the manner in which he was terminated. This Court does not tell management how to run its business and although this termination may fall into the category of being a true redundancy I am still of the view that the legislation has been breached. It cannot be denied that the non union membership of the applicant played a part in his dismissal.

Accordingly I order the respondent to pay to the applicant the sum of $9000.00.

I certify that this and the preceding 6 pages area a true and correct copy of the reasons for judgment delivered ex tempore by Judicial Registrar Tomlinson on 5 May 1995.

Associate:

Date:

Appearances: Solicitor for the Applicant: Ms F.A.Stanton Mazza McCullen & Robinson Solicitor for the Respondent : Mrs Cott -Gunning Mr S.J. McComish