Citation : [2005] WAIRC 2073 Catchwords: Industrial law - Termination of employment contract - Dismissal unfair within meaning of Industrial Relations Act 1979 (WA) - Right to be heard - Capacity of Full Bench to substitute finding of Commission under s 49 of Act - Jurisdiction of Full Bench - Compensation for lost income and injury Legislation: Industrial Relations Act 1979 (WA), s 7, s 23, s 23A, s 29, s 49 Result: Appeal dismissed Category: B Representation: Counsel: Appellant : Mr T H F Caspersz Respondent : Mr C S Fayle (Agent) Solicitors: Appellant : Valerie Hodgins Respondent : C S Fayle (Agent) Case(s) referred to in judgment(s): Nil 1486 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. Case(s) also cited: Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia [1999] SASC 300 Automatic Fire Sprinklers Pty Ltd & Anor v Watson (1946) 72 CLR 435 Branir Pty Ltd & Ors v Owston Nominees (No 2) Pty Ltd & Anor (2001) 117 FCR 424 Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 Cargill Australia Ltd, Leslie Salt Division v The Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch 72 WAIG 1495 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Corporation of the City of Enfield v Development Assessment Commission & Anor (2001) 199 CLR 135 Dellys v Elderslie Finance Corporation 82 WAIG 1193 Garbett v Midland Brick Company Pty Ltd 83 WAIG 893 Hospital Employees' Industrial Union of Workers, WA v Applecross Nursing Home Pty Ltd 61 WAIG 120 Lynam v Lataga Pty Ltd 81 WAIG 986 McDowell v Swan Cottage Homes Inc 70 WAIG 3818 Personnel Contracting Pty Ltd t/as Tricord Personnel v The Construction, Forestry, Mining and Energy Union of Workers [2004] WASCA 212 Rigby v Ferodo Ltd [1988] ICR 29 Stead v State Government Insurance Commission [1986] 161 CLR 141 Steele v Clarke and Nicholls (2003) 84 WAIG 17 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 Warren v Coombes & Anor (1979) 142 CLR 531 Wood v National Mine Management Pty Ltd 78 WAIG 4853 1 ROBERTS-SMITH J: I agree with the draft judgment prepared by Le Miere J and have nothing to add. 2 PULLIN J: I have read the draft reasons prepared by Le Miere J. I agree with those reasons and have nothing to add. 3 LE MIERE J: The respondent was employed by the appellant as a part-time medical technician pursuant to a written contract of employment dated 22 May 2003 ("the employment contract"). The respondent worked four days a week doing bone scanning work and office work. On 1 July 2004 Ms Bridges, a friend and fellow employee of the respondent, informed the respondent that she had been told by the appellant's practice manager that the respondent's contract was going to be terminated and that the respondent would be offered another contract working for three days each week. On 6 July 2004 the respondent met with Dr Will who described himself as a proprietor of the appellant's business. The respondent and Dr Will gave conflicting evidence as to what was said at that meeting. The respondent's evidence was that Dr Will said: "Your current contract has - - is terminated, but I will be able to offer you another contract with - - for three days but you'd be scanning only." 4 The respondent's evidence is that she said to Dr Will: "Well, when does this all start from?" and he said: "Today". The respondent said: "Well, I'm not going to make a decision until I see this in writing". 5 Dr Will's evidence was that he said to the respondent that: "We weren't really in the position any longer to employ [her] for 1 day a week of doing clerical duties and that … at that time …, [the appellant] could offer her 3 full days a week of bone scanning duties, but there was certainly the likelihood that … the requirement for bone density scanning would fluctuate from month to month." 6 On 8 July the respondent approached Dr Will and said that she had not received anything in writing. Dr Will said that he did not have time to deal with the matter and that the respondent should see the practice manager. In the following days the respondent asked for some kind of written communication. She did not receive any letter but subsequently received a new form of contract which provided for the respondent to be employed for three months working three days per week. 7 On 15 July 2004 the respondent wrote to Dr Will. The respondent said that on 6 July Dr Will had informed her of his decision to terminate her contract and offer her a three-month contract for a weekly total of eight hours less work. The respondent stated that she had decided not to accept the new contract. She said that her contract stated that the appellant would provide her with five weeks' notice if it terminated her contract and said that that should be implemented from 6 July and the termination was therefore to take effect as of 9 August. The respondent ceased working for the appellant on 9 August 2004. 8 The appellant's case was that the appellant did not terminate the respondent's employment but exercised its contractual right to vary the respondent's hours of work. Clause 2.3 of the employment contract provided, in part: "To ensure that the operational needs of the company are met, [the appellant] may vary your hours of work. In such cases, [the appellant] undertakes to provide you with reasonable notice of significant variation to you [sic] hours of work and due consideration will be given to the needs on both parties." 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1487 Respondent claims unfair dismissal 9 The respondent claimed she was harshly, oppressively and unfairly dismissed. 10 Commissioner Smith found that there was only one substantially material factual issue between the parties and that was whether Dr Will informed the respondent on 6 July that he intended to terminate her contract. Smith C preferred the evidence of the respondent to that of Dr Will. Smith C went on to find that notwithstanding that Dr Will used the word "termination" he did not intend that the respondent should cease to work for the appellant. The Commissioner said that the question was whether Dr Will's actions in offering the respondent a new contract for a period of three months which resulted in the resignation of the respondent constituted a constructive dismissal. 11 The Commissioner found that the appellant's decision to reduce the respondent's hours of work by 25 per cent with a review after three months was unfair. The appellant's proposal was so substantively unfair as to constitute a repudiatory breach of the employment contract. Pursuant to cl 2.3 of the employment contract the appellant was required to consider not only its own needs but the needs of the respondent when making a decision to vary her hours of work. The appellant did not consider the cost of retaining the respondent to work four days a week against a 25 per cent reduction of income to the respondent. Smith C concluded that the appellant's decision to reduce the respondent's hours of work without regard to her needs was unfair. 12 Smith C went on to consider what compensation should be awarded to the respondent. The Commissioner found that the respondent had diligently sought employment as a bone densitometry technician and that the appellant had not discharged the onus of establishing that the respondent had failed to mitigate her loss. The Commissioner awarded the respondent 17 weeks pay, being the time elapsed between the date her employment came to an end and the date of the hearing. The Commissioner found that the manner in which the respondent was informed that her contract was to be terminated was callous, oppressive and humiliating. Further, by informing Ms Bridges in the meeting on 6 July that he intended to provide her with work in relation to new projects when he had just informed the respondent that her hours would be reduced and that she was no longer required to carry out office work the conduct of Dr Will was demeaning. The Commissioner accepted that the respondent later sought medical treatment for depression and insomnia. Smith C awarded the respondent $2000 for injury. Appellant appeals to Full Bench 13 The appellant appealed to the Full Bench. Ground 1 of the appeal was that the Commission erred in fact and law and exceeded its jurisdiction by declaring that the respondent was unfairly dismissed when there was no sufficient evidence that the appellant: (a) dismissed the respondent; or (b) repudiated the contract of employment such that the respondent was "constructively" dismissed. 14 Ground 2 of the appeal was an appeal against the award of compensation for an amount equivalent to 17 weeks of salary and an amount of $2000 for injury. 15 The Full Bench dismissed the appeal. The President, with whom Commissioner Mayman agreed, found that on 6 July 2004 the appellant terminated the respondent's contract of employment. There was an actual or express dismissal of the respondent on 6 July 2004. The President accepted that that was not the way in which Smith C had dealt with the matter. The Commissioner had found that the actions of the appellant constituted a constructive dismissal. The President found that the appellant had expressly breached cl 2.3 of the employment contract and that there was a repudiatory breach of the implied duty of considerateness and goodness. Thus, the President found that there was an actual dismissal on 6 July 2004 or alternatively, that the appellant repudiated the contract, the respondent accepted the repudiation and that this constituted a constructive dismissal. The President found that the dismissal was unfair for reasons which he stated. 16 Commissioner Scott found that there was not a constructive dismissal but an actual dismissal. Commissioner Scott agreed that the respondent's dismissal was unfair for the reasons given by the President. 17 The President, with whom Commissioner Mayman agreed, found that Smith C did not err in awarding compensation of 17 weeks' salary. Further, the President found that the respondent suffered shock and humiliation as a result of her unfair dismissal and the surrounding treatment of her by Professor Will. The President found that ground 2 of the appeal was not made out. Commissioner Scott agreed with the President that the loss and injury found by Smith C was supported by the evidence. This appeal 18 The appellant appeals to this Court on four grounds. I will consider each ground of appeal separately. Ground 1 19 Ground 1 is that the appellant was denied the right to be heard when the Full Bench held that: (a) the appellant actually dismissed the respondent on 6 July 2004 contrary to the finding of the Commission that, on 6 July 2004, the appellant had proposed a variation of the respondent's contract of employment; (b) the appellant owed to the respondent an implied contractual duty of "considerateness and goodness", which it had breached in repudiation of the contract of employment; when the appellant had no notice of, or proper opportunity to respond to such matters. 20 In his submissions to the Full Bench the respondent's advocate submitted that the appellant actually dismissed the respondent on 6 July 2004 rather than constructively dismissing the respondent. In his submissions in reply counsel for the appellant responded to that submission at AB 103: 1488 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. "… If I can reply to what really was the first submission or first part of the submissions by my friend and that is this: It is understood that his submission was along these lines. There was a repudiatory breach because what occurred here was not an attempt to exercise a right under clause 2.3. What occurred here, as I understood my friend's submission, was simply a termination of the contract which at that time was an indefinite contract and the offer of a new fixed term contract of 3 months. That was not something you could do under clause 2.3, given the other provisions of the contract which said you could only have a variation in writing and that, therefore, constituted a repudiatory breach. My friend, in particular, went to paragraph 40 of the Commission's reasons for decision in support of his submission and he also referred to appeal book page 120 and a concession by Dr Will about the use of the word 'termination' and in response to his Honour's question relied upon that as being evidence of a direct act of dismissal. I respond to those submissions as follows." 21 Counsel then went on to respond to that submission. Thus, counsel had the opportunity to, and did, respond to the submission that what occurred on 6 July was an express termination or actual dismissal rather than a constructive dismissal. 22 In the course of counsel for the appellant's submissions, the President expressly raised the proposition that a harsh or oppressive or unfair exercise of the appellant's contractual right to vary the respondent's hours might be a breach of the implied duty of trust and confidence between the parties and might be a repudiatory breach. Counsel for the appellant responded to that proposition. The duty of the employer to be "good and considerate" is an aspect of, or alternatively presented as the employer's part of, the duty of "mutual trust and confidence": see Brooks, A "The Good and Considerate Employer: Developments in the Implied Duty of Mutual Trust and Confidence" (2001) 20(1) UTasLR 29. Thus, counsel had the opportunity to, and did, respond to the finding of the President that the appellant owed to the respondent an implied contractual duty of "considerateness and goodness", which it had breached in repudiation of the contract of employment. 23 For those reasons, ground 1 of the appeal is not made out. Ground 2 24 Ground 2 is that the Full Bench erred in law in its construction or interpretation of s 49(4) of the Industrial Relations Act 1979 ("the Act") when it substituted the Full Bench's finding for the Commission's finding despite the latter being a finding of fact that was open to the Commission on the evidence. 25 Counsel for the appellant did not press this ground in his oral submissions. In any event, the ground has no merit. 26 Subsection 49(4) of the Act provides relevantly that an appeal shall be heard and determined on the evidence and matters raised in the proceedings before the Commission. The Full Bench accepted the finding of Smith C as to what was said and happened at the meeting between the respondent and Dr Will on 6 July 2004. The Full Bench differed from Smith C in its conclusion as to the legal effect or consequence of what was said and happened. The Full Bench finding was a conclusion reached by applying the law to the facts. The Full Bench was entitled to substitute its finding for the Commission's finding. In any event the Full Bench is entitled to substitute its findings, including findings of fact, for the findings of the Commission at first instance. The appellant has not demonstrated that the Full Bench erred in its construction or interpretation of s 49(4) of the Act. 27 Ground 2 is not made out. Ground 3 28 Ground 3 is that the Full Bench's decision was in excess of jurisdiction in that the matter the subject of the decision was not an industrial matter as there was no evidence of a necessary jurisdictional fact to enliven the Commission's discretion under subpar 29(1)(b)(i) of the Act, namely, a dismissal by the appellant of the respondent. 29 This ground of appeal is expressed in confusing terms. Subparagraph 29(1)(b)(i) does not confer jurisdiction on the Commission, nor the power to make any orders. Subsection 29(1) of the Act provides who may refer an industrial matter to the Commission. Jurisdiction is conferred on the Commission by s 23(1) which provides that the Commission has got cognizance of and authority to enquire into and deal with any industrial matter. The powers of the Commission on claims of unfair dismissal are specified in s 23A. 30 "Industrial matter" is defined in s 7 of the Act to mean: "Any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to – … (c) … or the dismissal of or refusal to employ any person or class of persons therein." 31 In this case, the Commission had jurisdiction to enquire into and deal with the matter if it found that the appellant dismissed the respondent. That the appellant dismissed the respondent is a jurisdictional fact; that is, whether the appellant dismissed the respondent is a question concerning the existence of a condition precedent to the power of the Commission to deal with the matter. It is the duty of this Court to decide for itself whether or not the appellant dismissed the respondent and hence whether or not the Commission had jurisdiction to deal with the matter. 32 Smith C found that Dr Will said to the respondent that her contract was terminated but that he would offer her another contract for three days a week. The respondent asked Dr Will when did the termination take effect and he replied: "Today". The Full Bench accepted the findings of fact made by Smith C. There is no appeal from those findings of fact. The legal consequences of those facts is a matter of applying the law to the facts. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1489 33 The appellant, through Dr Will, dismissed the respondent. That is none the less so because the appellant did not intend that the respondent should cease working for the appellant. The undisclosed subjective intention of the appellant is not to the point. Objectively viewed, at the meeting on 6 July 2004, Dr Will terminated the respondent's employment. The conclusion that the appellant dismissed the respondent is not affected by the fact that, by mutual agreement between the appellant and the respondent, the respondent worked out the period of notice provided for by her contract of employment. 34 Alternatively, the conduct of the appellant, through Dr Will, on 6 July 2004 was a repudiatory breach of the contract of employment. That repudiation was accepted by the respondent by her letter of 15 July. The respondent's employment was terminated at the initiative of the appellant. That is, the appellant dismissed the respondent, and the appellant's act was nonetheless a dismissal because the respondent, by mutual agreement between the appellant and respondent, worked out the period of notice provided for in her contract of employment. 35 The appellant dismissed the respondent. This ground of appeal fails. Ground 4 36 Ground 4 is that the Full Bench erred in law in its construction or interpretation of s 23A(6) of the Act when it determined that the appellant should pay compensation to the respondent when there was no evidence of: (a) loss to the respondent caused by the dismissal justifying compensation of an amount equivalent to 17 weeks of salary; (b) injury suffered by the respondent caused by the dismissal. 37 This ground of appeal was elaborated upon by counsel for the appellant in his oral submissions. In essence, the appellant's argument was this. If the respondent's employment had not been terminated unfairly, it may have been terminated fairly by giving five weeks' notice and if that had occurred, the respondent would have suffered no greater loss of income than she ultimately did because, notwithstanding the respondent's dismissal, she worked out five weeks' notice and was paid for that period. 38 This ground of appeal has no merit. The Full Bench found that the appellant acted unfairly in deciding to dismiss the respondent. The President, with whom Commissioner Mayman agreed, found that the dismissal was unfair because: (a) The respondent was a long-standing, hard-working and efficient employee. (b) The replacement of her by a junior employee would give only a small saving of $3200 per annum compared to 25 per cent loss of annual income. (c) There was no reason given why she should have been offered a fixed term of three months instead of an indefinite contract. (d) Whether the contract required or not, the decision to terminate her contract somewhat perplexingly, without considering her needs, was for that reason unfair. (e) There was no evidence of any such consideration of her needs including her obvious financial commitments referred to in correspondence and, for that reason, it was unfair and contrary to the implied term requiring the employer to be good and considerate. (f) The failure to consider her needs was evidenced, too, by the manner in which she was peremptorily dismissed without proper warning, without discussion and, as the Commissioner found, without notice, and presented with a new contract as a fait accompli with no suggestion that the new contract could even be negotiated. 39 There is no basis for finding, or assuming, that if the appellant had not dismissed the respondent unfairly, it would have fairly dismissed the respondent and she would have received no longer a period of employment. 40 The respondent was unfairly dismissed. She was unemployed for a period of time. There was evidence that the respondent suffered loss caused by her dismissal. 41 There was also evidence that the respondent suffered injury as a result of her dismissal. Smith C found that the manner in which the respondent was informed that her contract was to be terminated was callous, oppressive and humiliating. The Commissioner accepted the respondent's evidence that from the time she was informed by Ms Bridges that her hours of work were going to be reduced from four to three days a week at the conclusion of her meeting with Dr Will on 6 July, the respondent was shocked and humiliated. Smith C accepted the respondent's evidence that the respondent later sought medical treatment for depression and insomnia. 42 In its written submissions the appellant submits that the Full Bench must be taken to have misconstrued s 23A(6) of the Act by making an order for compensation for loss and injury in the circumstances. There was evidence that the respondent suffered loss and injury caused by her dismissal. It was open to the Full Bench to find that the respondent suffered loss and injury caused by her dismissal. The appellant has not demonstrated that, in the course of making its decision, the Full Bench erred in their construction of interpretation of s 23A(6) of the Act. This ground of appeal is not made out. Conclusion 43 For the reasons stated, the appeal must be dismissed. 1490 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 2006 WAIRC 04729 AN APPEAL AGAINST THE DECISION OF THE FULL BENCH OF THE WAIRC IN MATTER NO. FBA 2 OF 2005 WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT PARTIES BONE DENSITOMETRY AUSTRALIA PTY LTD TRADING AS PERTH BONE DENSITOMETRY APPELLANT -v- SHARMAINE DEBORAH LENNY RESPONDENT CORAM ROBERTS-SMITH J (Acting Presiding Judge) PULLIN J LE MIERE J DATE HEARD THURSDAY, 1 DECEMBER 2005 DATE DELIVERED MONDAY, 29 MAY 2006 FILE NO/S IAC 9 OF 2005 CITATION NO. 2006 WAIRC 04729 Result Appeal Dismissed Representation Appellant Mr T H F Caspersz of Counsel Respondent Mr C S Fayle Order HAVING HEARD Mr T H F Caspersz (of Counsel) for the Appellant and Mr C S Fayle for the Respondent, the Court hereby Orders that : The Appeal is dismissed. (Sgd.) J A SPURLING, [L.S.] Clerk of Court. AWARDS/AGREEMENTS—Application for— 2006 WAIRC 04730 AUSTRESS FREYSSINET (REMEDIAL DIVISION) / CFMEUW INDUSTRIAL AGREEMENT 2005-2008 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES CONSTRUCTION, FORESTRY MINING AND ENERGY UNION OF WORKERS APPLICANT -v- AUSTRESS FREYSSINET PTY LTD RESPONDENT CORAM SENIOR COMMISSIONER J F GREGOR DATE MONDAY, 10 JULY 2006 FILE NO AG 52 OF 2006 CITATION NO. 2006 WAIRC 04730 Result Discontinued Order WHEREAS on 23 March 2006 The Construction, Forestry, Mining and Energy Union of Workers applied to the Commission to register an agreement pursuant to the Industrial Relations Act, 1979; and WHEREAS the matter was listed for registration on 9 June 2006; and WHEREAS a Notice of Discontinuance was filed on 10 April 2006 and the Commission has decided to discontinue the application. NOW THEREFORE pursuant to the powers vested in it by the Industrial Relations Act, 1979, the Commission, hereby orders: THAT the application be, and is hereby, discontinued. (Sgd.) J F GREGOR, [L.S.] Senior Commissioner. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1491 2006 WAIRC 04597 HOME AND COMMUNITY SERVICES (ALHMWU) AWARD 2002 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH APPLICANT -v- SOUTHERN CROSS W.A. AGED CARE INCORPORATED AND OTHERS RESPONDENTS CORAM COMMISSIONER P E SCOTT DATE THURSDAY, 22 JUNE 2006 FILE NO/S A 7 OF 2002 CITATION NO. 2006 WAIRC 04597 Result Application Dismissed Order WHEREAS this is an application for a new award to be known as the Home and Community Services (ALHMWU) Award 2002; and WHEREAS on Monday, the 14th day of April 2003, and Thursday, the 14th day of August 2003, the Commission convened conferences for the purpose of conciliating between the parties and reporting back to the Commission respectively; and WHEREAS on Monday, the 14th day of March 2005, the Commission convened a hearing for mention; and WHEREAS the hearing was adjourned sine die for the parties to continue discussions and the Applicant to advise the Commission of progress in 3 months’ time; and WHEREAS on Thursday, the 22nd day of December 2006, the Applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, and by consent, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P.E. SCOTT, [L.S.] Commissioner. 2006 WAIRC 04731 PWD CONSTRUCTION / CFMEUW INDUSTRIAL AGREEMENT 2005-2008 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES CONSTRUCTION, FORESTRY MINING AND ENERGY UNION OF WORKERS APPLICANT -v- PWD CONSTRUCTION PTY LTD RESPONDENT CORAM SENIOR COMMISSIONER J F GREGOR DATE MONDAY, 10 JULY 2006 FILE NO AG 241 OF 2005 CITATION NO. 2006 WAIRC 04731 Result Discontinued Order WHEREAS on 24 October 2005 The Construction, Forestry, Mining and Energy Union of Workers applied to the Commission to register an agreement pursuant to the Industrial Relations Act, 1979; and WHEREAS the matter was listed for registration on 24 January 2006; and WHEREAS at the request of the CFMEUW the matter was stood over pending further advice; and WHEREAS the matter was listed For Mention on 9 June 2006; and WHEREAS the CFMEUW filed a Notice of Discontinuance and the Commission has decided to discontinue the application. NOW THEREFORE pursuant to the powers vested in it by the Industrial Relations Act, 1979, the Commission, hereby orders: THAT the application be, and is hereby, discontinued. (Sgd.) J F GREGOR, [L.S.] Senior Commissioner. 1492 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. AGREEMENTS—Industrial—Retirement from— 2006 WAIRC 04760 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION No. 64 of 2006 IN THE MATTER of the Industrial Relations Act 1979 and IN THE MATTER of the filing in the Office of the Registrar of a Notice of Retirement from Industrial Agreement in accordance with section 41(7) of the said Act The Conservation Commission will cease to be a party to the Job Skills Trainee Agreement No. PSAAG 28 of 2003 on and from the 16th day of July 2006. DATED at Perth this 5th day of July 2006. J.A. SPURLING, Registrar. NOTICES—Application for General Order— 2006 WAIRC 04783 WA MINIMUM WAGE FOR NON-AWARD COVERED EMPLOYEES APPLICATION NO. 66 OF 2006 On Friday 18 August 2006 the WA Industrial Relations Commission will hear submissions about setting the WA Minimum Wage for adult employees, apprentices and trainees who are not covered by State awards or industrial agreements and whose employment is covered by the State’s Industrial Relations Act. Any person the Commission is of the opinion may be of assistance may make a submission either in writing or in person. Any person who wishes to do so should notify the Registrar in writing or by email of their intention by 12 noon on Monday 7 August 2006. J Spurling Registrar WA Industrial Relations Commission 111 St Georges Terrace Perth 6000 Email: registrar@wairc.wa.gov.au Telephone: 9420 4444 NOTICES—Award/Agreement matters— 2006 WAIRC 04753 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Application No. P 9 of 2006 APPLICATION FOR VARIATION OF AN AWARD TITLED “GOVERNMENT OFFICERS SALARIES, ALLOWANCES AND CONDITIONS AWARD 1989" NO PSA A 3 OF 1989 NOTICE is given that an application has been made by the Animal Resources Authority and Others under the Industrial Relations Act 1979 to vary the above Award. As far as relevant, those parts of the proposed Award which relate to area of operation or scope are published hereunder. Clause 4. – Scope: Insert the words " – List of Respondents of this Award" immediately following the words "Schedule A" Clause 4. – Scope: Insert the words "-Government Officers Not Covered by the Scope of this Award" immediately following the words "Schedule B" A copy of the proposed variation may be inspected at my office at 111 St. Georges Terrace, Perth. J.A. SPURLING, Registrar. 7 July 2006 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1493 INDUSTRIAL MAGISTRATE—Claims before— 2006 WAIRC 04712 WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT PARTIES ROSANNE BAKER CLAIMANT -v- NEKROS PTY LTD RESPONDENT CORAM INDUSTRIAL MAGISTRATE G. CICCHINI HEARD THURSDAY, 15 JUNE 2006, WEDNESDAY, 7 JUNE 2006, WEDNESDAY, 14 JUNE 2006 DELIVERED WEDNESDAY, 14 JUNE 2006 CLAIM NO. M 34 OF 2006 CITATION NO. 2006 WAIRC 04712 CatchWords Section 8A Long Service Leave Act 1958; non award long service leave; calculation; qualification; entitlements; real estate agent paid by commission only. Legislation Long Service Leave Act 1958 Long Service Leave General Order 52 WAIG 16 Long Service Leave General Order 58 WAIG 1 Cases cited Hayman v Donald F Munro & Associates Pty Ltd (2003) 83 WAIG 3666 Result Claim allowed Representation Claimant Mr M FitzGerald appeared as agent for the Claimant Respondent Mr P Watson appeared as agent for the Respondent REASONS FOR DECISION Facts 1 The facts in this matter are, save for the calculation of the Claimant’s income, not in controversy and can be stated as follows. 2 The Claimant is and was at all material times a real estate agent. On 9 June 1994 she commenced working for the Respondent, trading as Hollow & Darcy Real Estate and remained in the Respondent’s employment until 31 December 2004. It will be obvious that at termination she had completed ten years of continuous service. 3 The terms and conditions of the Claimant’s employment with the Respondent varied from time to time during its course but it suffices to say that her income throughout was derived from commissions earned with respect to the sale of real estate and the letting of properties. Sometimes she also received performance bonuses. 4 The Respondent credited all commission earned by the Claimant to her account against which was debited all the associated expenses incurred in deriving her income. Such expenses included but were not limited to those incurred for advertising, photocopying, printing, sign writing and telephone. The Respondent also debited against the Claimant’s account all compulsory and voluntary superannuation payments made by it for her benefit to the Claimant’s superannuation fund. From time to time the Claimant drew from the funds standing in credit in her account which were paid to her as an “allowance”. 5 In the lead up to the introduction of the Goods and Services Tax in 2000, the Claimant and Mr Peter Hollow entered into discussions concerning the impact of the new tax on commissions. As a consequence issues concerning the Claimant’s terms and conditions, including remuneration, were revisited. During the course of those discussions Mr Hollow suggested that the Claimant enter into a workplace agreement and further that she contract out of various entitlements including long service leave. The Claimant did not agree with Mr Hollow’s proposition. In the end result, the terms as to the Claimant’s remuneration were varied by agreement with effect from 1 January 2000 but the situation with respect to long service leave and other benefits remained unchanged. The parties did not enter into a workplace agreement. Calculation of the Claimant’s earnings 6 During the 2004 calendar year the Claimant “earned” $221,154.68 by way of commission on sales plus the sum of $5,494.27 by way of lease or letting commissions. She claims that the total of such represents her income for that period. She does not claim as part of her income for that year the $12,000.00 in bonuses she received. However when cross-examined, she conceded that the amounts credited to her account were in fact gross earnings from which deductions were made and that the periodic advances received during the year more accurately represented her income . 7 Mr Peter Hollow’s view is that the $197,628.00 the Claimant received by way of advances in the 2004 calendar year as shown on her ledger card (exhibit 1) was in fact her taxable income for that calendar year. When cross examined he conceded that in his calculation of the Claimant’s taxable income he did not include superannuation payments deducted from her account and paid to her superannuation fund. Such payments totalled $27,874 of which $10,000 was paid by way of a salary sacrificed voluntary payment. 1494 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 8 The Claimant’s earnings for the 2004 year were top-heavy in that the majority of her income was either credited to her account or paid therefrom in the first nine months of that year. The respondent asserts in that regard that her income for the last three months of her employment was only $16,500. The quantum of the Claimant’s earnings for the last three months of her employment is a critical issue for the Respondent in the light of its submissions on this matter as hereinafter discussed. Issues 9 It is common ground that when the Claimant left the Respondent’s employment she was not paid any pro rata long service leave entitlement. The Respondent initially took the view that it was not obligated to pay the same but now concedes that the Claimant is entitled to a long service leave payment pursuant to the provisions of the Long Service Leave Act 1958 (the Act) which provides for the granting of long service leave to employees whose employment is not regulated under the Industrial Relations Act 1979 (the IR Act). 10 Section 8 of the Act is headed “Long service leave” and provides as follows: (1) An employee is entitled in accordance with, and subject to, the provisions of this Act, to long service leave on ordinary pay in respect of continuous employment with one and the same employer, or with a person who, being a transmittee, is deemed pursuant to section 6(4) to be one and the same employer. 11 Subsection 8(3) provides: (3) Subject to subsection (5), where an employee has completed at least 10 years of such continuous employment since the commencement thereof, but less than 15 years, and the employment is terminated – (a) by his death; or (b) for any reason other than serious misconduct, the amount of leave to which the employee is entitled shall be a proportionate amount on the basis of 13 weeks for 15 years of such continuous employment. 12 Subsection 8(5) is not relevant with respect to this matter. 13 The dispute between the parties relates to how much the Claimant should be paid with respect to long service leave. The Claimant contends that her pro rata long service leave entitlement should be paid at the ordinary rate as defined in subsections 4(1) and 4(2) of the Act. 14 “Ordinary pay” is defined in subsection 4(1) of the Act as follows. “ordinary pay” means subject to subsection (2), remuneration for an employee’s normal weekly number of hours of work calculated on the ordinary time rate of pay applicable to him, as at the time when any period of long service leave granted to him under this Act commences, or is deemed to commence, and where the employee is provided with board and lodging by his employer, includes the cash value of that board and lodging, where such board and lodging is not provided and taken during the period of leave, but does not include shift premiums, overtime, penalty rates, commissions, bonuses, allowances, or the like. 15 Subsection 4(2) provides: (2) For the purpose of the interpretation of “ordinary pay” in subsection (1) – (a) where the employee is employed on piece or bonus work or any other system of payment by results, he shall be paid during any period when he is on long service leave at the ordinary rate of pay which would be applicable to him if he was employed in the industry appropriate to his calling on a time basis and not on piece or bonus work or other system of payment by results; (b) where no ordinary time rate of pay is fixed under the provisions of paragraph (a) the ordinary time rate of pay shall be deemed to be the average weekly rate earned by him while in employment during the period of 12 months – (i) ending on the day immediately preceding that on which he commences long service leave or would but for payment in lieu of long service leave have commenced long service lave, if he is then in employment; or (ii) ending on the day immediately preceding that on which he was last in employment, if he is not then in employment; or (iii) ending on the day immediately preceding that of his death, as the case requires; and (c) where the normal weekly number of hours have varied over the period of employment of an employee the normal weekly number of hours of work shall, subject to paragraph (a), be deemed to be the average weekly number of hours worked by the employee during that period of employment (calculate by reference to such hours as are ascertainable if the hours actually worked over that period are not known); and 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1495 (d) the cash value of any board and lodging provided for an employee shall be deemed to be its cash value as fixed by or under the conditions of the employee’s employment, or, if it is not so fixed, shall be computed at the prescribed rate; and (e) where by agreement between the employer and the employee the commencement of the leave to which the employee is entitled or any portion thereof is postponed to meet the convenience of the employee, the rate of payment for such leave shall be at the ordinary time rate of pay applicable to him at the date of accrual or, if so agreed, at the ordinary time rate of pay applicable at the date he commences such leave. 16 The Respondent on the other hand suggests that the Claimant’s long service leave entitlement should be calculated in accordance with subclause 4(5) of the General Order made by the Western Australian Industrial Relations Commission on 15 December 1977 (58 WAIG 1) which provides: (5) In the case of workers employed on piece or bonus work or any other system of payment by results the rate of pay shall be calculated by averaging the worker’s rate of pay for each week over the previous three monthly period. 17 The Respondent contends that the aforementioned provision has force by virtue of section 8A of the Act which states: 8A. Variation of qualifications and entitlement to long service leave Notwithstanding any other provision in this Act in the event of a determination of the Commission in Court Session varying from time to time any of the provisions for qualifications or entitlement to long service leave as contained in volume 52 of the Western Australian Industrial Gazette at pages 16 to 21, both inclusive, for the majority of awards which those provisions have been incorporated in and form part of, the qualifications and entitlement of employees to long service leave shall forthwith thereafter be varied accordingly. 18 It is common ground that the order of the Commission in Court Session made on 23 September 1964, as is found in 52 WAIG 16, and as referred to in section 8A of the Act was varied by General Order made on 15 December 1977. Determination 19 The pivotal question to be answered is whether section 8A of the Act has the effect of importing the provisions of the General Orders with respect to qualification and entitlements to long service leave to employees whose employment is not regulated under the IR Act and if so whether a provision therein concerning calculation can be considered an entitlement provision. 20 Section 8A, in my view, is aimed at maintaining consistency with respect to qualification and entitlement to long service leave between those employees whose employment is regulated by the IR Act and those employees whose employment is not so regulated. 21 Section 8A is an enabling provision which facilitates the importation of changes to long service leave qualification and entitlements for the sake of consistency. It can have no other meaning. I reject the Claimant’s contention that the provision has been enacted to facilitate the Commission in Court Session making variations to the General Order with respect to long service leave. Given that such power exists within the provisions of the IR Act, the enactment of section 8A of the Act would in the circumstances have been unnecessary. Section 8A is found within the Act to enable “employees” as defined in the Act to be treated in exactly the same way with respect to long service leave qualification and entitlement as those employees whose employment is regulated by the IR Act. One can well understand that it is desirable from a public policy perspective that all employees, be they governed by awards or not, be treated in the same way with respect to such issues. Section 8A facilitates the variation from time to time of the qualifications and entitlements of employees under the Act without the need to amend the Act each time there is a change made to the long service leave qualifications or entitlements of those employees regulated by the IR Act. The provision achieves immediate consistency without the need to amend the Act. In my view the wording of section 8A of the Act plainly reflects that to be so. 22 It follows that the next issue to be determined is that of what is meant by the terms “qualifications” and “entitlement” referred to in section 8A of the Act. Section 8 of the Act grants, inter alia, 13 weeks long service leave to an employee who has been in continuous employment with the same employer for 15 years. That, however, is subject to subsection 8(3) of the Act which grants pay in lieu of long service leave on a pro rata basis to employees who have been employed by the same employer for at least 10 years but less than 15 years in circumstances where their employment is terminated by death or for any other reason other than serious misconduct. In such circumstances the employee is entitled to be paid the value of the proportion of the 13 weeks (full entitlement) that his or her period of employment bears to 15 years. Ostensibly such is the qualification for the attainment of long service leave or pay in lieu thereof. 23 It necessarily follows that an employee’s “entitlement” is the amount of long service leave which the employee can take upon qualification or alternatively the pro rata proportion of untaken leave where the employee’s employment is terminated after having completed 10 years of continuous service with the same employer. The same must be measured in terms of weeks and, if applicable, part thereof. 24 For present purposes the Claimant’s entitlement to leave is 10.67 8.67 weeks. That figure is derived by applying the formula set out in subsection 8(2) of the Act. The same may be represented as follows: 10 years divided by 15 years multiplied by 13 weeks equals 10.67 8.67 weeks. 25 The Claimant’s right therefore is to be paid the value of 10.67 8.67 weeks of long service leave. “Entitlement” is that to which a person has a right to. “Entitlement” is defined in the CCH Macquarie Dictionary of Employment and Industrial Relations to mean: 1496 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. entitlement that which a person has a right to, e.g. that which is specifically provided for in industrial awards and contracts of employment as the rights of employees. The term is used especially for the additional payment received when leaving employment, consisting of a pro rata amount for accrued annual leave, long service leave where applicable, etc. 26 The Claimant’s entitlement as referred to in sections 8 and 8A can have no other meaning than the pro rata amount of long service leave measured in weeks and part thereof, with respect to which payment is to be made at the ordinary rate of pay. The quantification of the entitlement measured in dollar terms does not relate to the Claimant’s entitlement. The entitlement remains constant but the value thereof is dependant upon the statutory formula provided to give meaning to what is meant by ordinary pay. 27 Subsections 4(1) and 4(2) of the Act and not subclause 4(5) of the General Order made on 15 December 1977 govern the quantification of the Claimant’s entitlement. Subclause 4(5) of the General Order has no application because it is not a provision relating to “qualifications” or “entitlement” as envisaged by section 8A of the Act. Section 8A of the Act does not therefore facilitate the importation of subclause 4(5) of the General Order. Rather it is a discrete provision which creates the formula for calculation of payment in lieu of long service leave for employees who are employed on piece work or whose work is remunerated by the payment of bonuses or any other system of payment by results and whose employment is governed by the IR Act. The Long Service Leave Act 1958 provides for its own method of calculation, which differs from that provided in the General Order, for employees falling within the Act who are employed on piece work or whose work is remunerated by the payment of bonuses or any other systems of payment by results. 28 In my view section 8A does no more than provide for equality with respect to the issue of qualification in terms of years and entitlements in terms of weeks for all employees whether they are within the award system or not. It does not import the method of giving value in dollar terms to such entitlements. Such gives meaning and effect to subsection 4(2) of the Act. Conclusion 29 I find therefore that the calculation of the Claimant’s entitlement should be made in accordance with the method set out in subsections 4(1) and 4(2) of the Act. Her ordinary pay must be calculated on the basis of the average weekly rate earned by her during the period of 12 months ending on the day immediately preceding that on which she was last in employment. 30 Pursuant to section 11 of the Act I determine that the Claimant’s ordinary rate of pay is her average weekly rate earned during the last 12 months of her employment, calculated by adding all those amounts standing to her credit of her account for the 2004 calendar year (as shown in exhibit 1) being sales and rental commissions and deducting therefrom all such sums that were debited to her account for sales expenses. 31 All the superannuation payments made are not to be deducted from the Claimant’s credit balance because it appears, from the 1997 agreement between the parties relating to superannuation which continues to have application, that the Respondent had the responsibility to pay for the Claimant’s superannuation. 32 The net amount achieved in accordance with what I have stated must be divided by 52 (weeks) and then multiplied by 10.67 8.67 to quantify in dollar terms the Claimant’s entitlement. 33 The parties have agreed that I should not calculate the amount in question and that the calculations should be left to them to achieve by agreement. I will leave it to the parties to calculate the quantum of the Claimant’s entitlement by agreement. If agreement cannot be reached I will, on the application of either party with notice to the other party, determine the issue of the quantum of the Claimant’s entitlement. 34 I will now hear from the parties with respect to the orders to be made. G Cicchini Industrial Magistrate UNFAIR DISMISSAL/CONTRACTUAL ENTITLEMENTS— 2006 WAIRC 04614 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES NATASHA LEE ARNOLD APPLICANT -v- DESIGNTECH WA PTY LTD (ABN 30076819960), SUPPLY LINK GROUP PTY LTD (CAN 113 284 576) RESPONDENTS CORAM COMMISSIONER S WOOD DATE MONDAY, 26 JUNE 2006 FILE NO U 297 OF 2005 CITATION NO. 2006 WAIRC 04614 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1497 Result Order Issued Representation Applicant Ms J Walker as agent on behalf of the applicant Respondents Ms M Ivanovski of Counsel on behalf of the respondents Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS a conciliation conference was convened on 1 June 2006 at the conclusion of which the matter was resolved; and WHEREAS the hearing dates of 12 and 13 June 2006 were vacated on the basis of the matter being resolved; and WHEREAS the Commission at the conclusion of conference confirmed with the parties the terms of the settlement; and WHEREAS the Commission advised the parties at the conclusion of the conference that should the settlement not be followed an order would issue in the terms of the settlement; and WHEREAS the settlement was a full and final settlement of all matters in dispute in the employment relationship; and WHEREAS the applicant through her agent on 12 June 2006 sought to withdraw from the settlement reached; and WHEREAS the Commission finds that it is in the public interest to issue an order in the terms of the settlement; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: 1. THAT the respondent will pay to the applicant the sum of $7,015.87. 2. THAT the sum is a net figure and any taxation liability is to be met by the respondent. 3. THAT the respondent will pay the sum in instalments as follows: (a) 10% of the sum within 2 days from the date of this order. (b) The remaining 90% of the sum in equal weekly instalments over the following 13 weeks. 4. THAT the respondent pay to the applicant 9% of $10,022.67 by way of superannuation, to the applicant’s superannuation fund by no later than the last weekly instalment payment. 5. THAT the respondent forward all of the applicant’s payslips to her address on record. 6. THAT the application is otherwise dismissed. (Sgd.) S WOOD, [L.S.] Commissioner. 2006 WAIRC 04594 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MARIA JANE BAKER APPLICANT -v- VLADIMIR HARDI PROPRIETOR RESPONDENT CORAM COMMISSIONER S WOOD HEARD THURSDAY, 8 JUNE 2006 DELIVERED THURSDAY, 22 JUNE 2006 FILE NO. U 151 OF 2006 CITATION NO. 2006 WAIRC 04594 CatchWords Termination of employment - Alleged unfair dismissal - Abandonment or Dismissal - Employment relationship brought to an end by respondent - Duty to attend at work - Absence of warning that position in jeopardy - Fair go all round afforded Result Application dismissed Representation Applicant Ms M Baker Respondent Mr V Hardi 1498 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. Reasons for Decision 1 This is an application made pursuant to s.29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”). The applicant Ms Maria Jane Baker was employed by the respondent, Mr Vladimir Hardi, who is the proprietor of the Lake Grace Roadhouse. Ms Baker was dismissed on 9 February 2006. She describes her position as a Kitchenhand and her duties included cooking, cleaning and operating the till. She was paid $14.50 per hour and worked typically from 1pm to 9pm from Monday to Saturday each week. She says that she had been in the employment of the respondent for a couple of months. 2 Ms Baker says in her application that she was unfairly dismissed because, “there was no way of getting to work as the road to Lake Grace was closed due to floods.” Ms Baker included in her application an explanation of events and photographs of flooded areas and roads around the nearby town of Kukerin where she lived. Ms Baker says in her application that when the flooding occurred she telephoned Mr Hardi who told her, “don’t worry I understand, just get in when you can”. 3 The respondent in the Notice of Answer and Counterproposal says that within a week after the flooding an alternative route was opened via the White Dam Road. He says that light vehicles were then able to travel between Kukerin and Lake Grace. At that time the main road to Lake Grace remained closed and local authorities could not confirm when it would be re-opened. Mr Hardi says that the applicant elected not to use this route and that after four weeks, “this forced me to fill Maria’s position with another person”. 4 Ms Baker’s evidence is that she lives in Kukerin and was not able to attend at work in Lake Grace due to the floods which isolated Lake Grace. She says that the main route was closed and that the only access was via the back road. She was advised by a friend (Michelle) approximately two days after the floods that she should not use the back road. Ms Baker says that the back road had potholes, was suitable only for four wheel drives, she drove a small car (a Hyundai Excel hatchback), drove home from work at night and did not feel safe in those conditions. Ms Baker says also that her husband drove into Lake Grace in a utility, owned by the company he worked for, a matter of days after the flood. She says that her husband drove into Lake Grace 2 or 3 times after the floods. He likewise considered that the road was not safe. Later, under questioning by the Commission as to whether Ms Baker knew if the road continued to remain unsafe, Ms Baker said that she was also told this by another friend (Maggie) and that Michelle continued to tell her that the road was not suitable for her. Both of these women drove four wheel drive vehicles. I do not have confidence in this elaboration of her evidence under questioning. Ms Baker admitted that at no time did she attempt to drive on the back road and to ascertain for herself whether the road was suitable for her vehicle. 5 Ms Baker says that she spoke to Mr Hardi twice after the flood. Originally she telephoned him 2 days after the flood and he said that she should get into work when she could get in. She telephoned him again about one week later and told him that she could still not get to work. She expected that she would get to work when she could. I take this to mean that she would get to work when the main road re-opened. Mr Hardi then telephoned her on 9 February 2006 and told her that her services were no longer required and that the good news was that he could pay her some holiday pay. 6 Ms Baker said at one stage that the trip via the back road would take much longer. This clearly was a disincentive to using that road; albeit Ms Baker said that she simply did not use that road as she could not get through to work. Ms Baker says also that she could not get a lift to work as she worked usually 1pm to 9 pm. She would have to wait out the morning if she got a lift, and then did not have a lift home. She did not ask anyone for a lift into Lake Grace. 7 Ms Baker says that she has not been employed since her dismissal and has not received any income. She gave unchallenged evidence as to the steps which she has taken since her termination to obtain employment. 8 Mr Hardi agrees that he spoke to Ms Baker twice when she rang and he agrees that he indicated on the first occasion that it was okay for her not to attend work. He says that he asked Ms Baker if she would come to work if he came and picked her up, but she declined. During the second conversation Mr Hardi says that he suggested Ms Baker take the back road, but she indicated that her car was not good enough for the road. He says that about one week after the second conversation he rang Ms Baker at her home and spoke with her husband. Ms Baker’s husband advised that she was in Perth. Mr Hardi does not say directly that this influenced his decision to dismiss Ms Baker, however, clearly by his demeanour when he provided this answer, he was not happy that Ms Baker had gone to Perth. 9 Mr Hardi says that he dismissed Ms Baker as he needed someone to do the job. The roadhouse is a small operation. Mr Hardi says that he knew that the back road to Kukerin was accessible as he had customers through his roadhouse who had driven the back road and he received regular updates. This road was accessible 2 or 3 days after the floods. However, the main road was closed for a long time. Mr Hardi under questioning from the Commission agreed that he had not foreshadowed with Ms Baker that her job was in jeopardy if she did not attend at work. 10 The test to be applied is that expressed in Undercliffe Nursing Home –v- Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch 65 WAIG 385, Brinsden J said @ page 386: “The jurisdiction has been variously stated: in re Loty and Holloway v. Australian Workers' Union (1971) A.R. 95 at 99 Sheldon J. said that even though in the dismissal be it summary or on notice, the employer has not exceeded his common law and/or award rights, the Court was entitled to enquire as to whether the employee had received "less than a fair deal". He also approved what had been said in an earlier case whether there had been "a fair go all round". ………………… As His Honour points out the question to be investigated is not a question as to the respective legal rights of the employer and the employee but a question whether the legal right of the employer has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right.” 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1499 11 It is not in dispute as to whether the employment relationship was terminated by the employer. Both parties, through their evidence, accept that Mr Hardi brought the relationship to an end. Mr Hardi says that he had to do this as he needed someone to do the job. The Commission then has jurisdiction to determine the matter. The matter is not submitted to be a case of abandonment of employment, albeit for the reasons I will cover it has some characteristics of abandonment. 12 The applicant following the floods rang the respondent on two occasions to let him know that she could not get to work. This occurred on about the second (15 January) and ninth (22 January) days after the floods. The evidence as to dates is not precise, but this would appear to be the time sequence. Therefore the applicant by her actions, at least initially, evinced an intention to remain employed. There is no evidence as to whether Ms Baker continued to be paid wages, notwithstanding her absence due to the floods. However, Ms Baker does not claim this as an aspect of unfairness. Ms Baker it would seem worked on the basis of Mr Hardi’s assurance that she should come back to work when she could get to work. Mr Hardi then rang Ms Baker on 9 February 2006 to tell her that her services were no longer required. 13 As stated, the applicant says unchallenged that she was told on the first occasion that she could return to work when she could get to work. There is no contest that all roads were inaccessible at that time. Mr Hardi says unchallenged that he asked if she would attend at work if he picked her up and this was refused. This matter was not put to Ms Baker under cross-examination, however, both parties were self-represented and had ample opportunity at hearing to put their evidence and issues. The first issue then is that the parties differ as to how long the back road from Kukerin to Lake Grace remained inaccessible. There is also the fact that Mr Hardi did not warn Ms Baker that he expected her to attend for work or the job would no longer be available to her. 14 Ms Baker’s case is that the road remained unsuitable as at the time of dismissal. I put it in this way as she does not say this precisely, but she does say that she did not go to work as she continued not to be able to get to work due to the condition of the roads. Mr Hardi’s evidence is that the back road was accessible shortly after the floods because he had people come into his roadhouse who had travelled on that road. I accept this evidence. The evidence of Ms Baker in fact reinforces this view. She says that her friends Michelle and Maggie travelled on that road. That was shortly after the floods and they had four wheels drive vehicles. She says also that it was accessible by a utility vehicle as her husband drove on the road shortly after the floods. Ms Baker maintains though that the road would not have been suitable for her vehicle. I do not accept her evidence that she continued to be informed by friends that the road was unsuitable for her to travel. Ms Baker never attempted to find out if she could have driven to Lake Grace on that road; even some 27 days after the floods. This leads me to doubt Ms Baker’s reasons for not attending work. I do not accept her evidence then that she could not have got to work via the back road. Ms Baker also proffered that the trip would have taken longer and was at night. I asked her directly whether the extended length of the trip was a factor and she rejected this. She maintained that it was simply because she could not get through on that road in her car. I consider it probable that the journey would have taken longer and that Ms Baker saw this as a real disincentive to going to work. I am left to wonder how much longer Ms Baker may have continued to be absent from work, without further contact with the respondent, but for Mr Hardi bringing the matter to a close. I should add that it is for the applicant to find a way to get to her employment. 15 There is then the evidence of Mr Hardi that he telephoned the applicant’s home about one week after the second conversation (ie about 29 January 2006). He spoke with the applicant’s husband who advised that the applicant had gone to Perth. The applicant did not contact Mr Hardi as a result of this conversation. It could be expected that the applicant would have kept Mr Hardi informed of her circumstances, especially after he had sought to contact her. In essence, Mr Hardi waited another 11 days before he took the step of dismissing Ms Baker. Ms Baker had not contacted Mr Hardi for 18 days, notwithstanding that she could have simply attended for work. I so find. I weigh these actions against the actions of the employer who waited a considerable time but did not alert Ms Baker that her job was in jeopardy. I would have thought, however, that Ms Baker should have considered that the obligation was on her to get to work if she wanted to retain the job. I do not accept her reasons for not attending at work. 16 Having regard to the principles in Undercliffe I do not find the dismissal to be harsh, oppressive or unfair. I would therefore dismiss the application. 2006 WAIRC 04593 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MARIA JANE BAKER APPLICANT -v- VLADIMIR HARDI PROPRIETOR RESPONDENT CORAM COMMISSIONER S WOOD DATE THURSDAY, 22 JUNE 2006 FILE NO U 151 OF 2006 CITATION NO. 2006 WAIRC 04593 Result Application dismissed Representation Applicant Ms M Baker Respondent Mr V Hardi 1500 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. Order HAVING heard Ms M Baker on her own behalf and Mr V Hardi on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders: THAT the application be and is hereby dismissed. (Sgd.) S WOOD, [L.S.] Commissioner. 2006 WAIRC 04526 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DAVID BIRCH APPLICANT -v- EDITH COWAN UNIVERSITY STUDENT GUILD RESPONDENT CORAM COMMISSIONER S M MAYMAN HEARD MONDAY, 27 FEBRUARY 2006, WEDNESDAY, 15 MARCH 2006 DELIVERED TUESDAY, 13 JUNE 2006 FILE NO. U 73 OF 2006 CITATION NO. 2006 WAIRC 04526 Catchwords Termination of employment – harsh, oppressive and unfair dismissal – application referred outside of 28 day time limit – relevant principles to be applied – Commission satisfied that discretion ought not be exercised – acceptance of referral out of time refused – Industrial Relations Act 1979 (WA) s 29(1)(b)(i), (ii) and (iii) Result Application dismissed Representation Applicant Mr R. Wyatt and Mr R. Amos-O’Callaghan Respondent Mr D. Singh (of counsel) Reasons for Decision 1 On 27 January 2006 David Birch (“the applicant”) referred an application to the Western Australian Industrial Relations Commission (“the Commission”) pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) claiming that he had been harshly, oppressively and unfairly dismissed on 14 September 2005 by Edith Cowan University Student Guild (“the respondent”). 2 The Act requires that such applications be lodged within 28 days after the day in which the applicant was terminated. This application was lodged on 27 January 2006, some 77 days outside of the required timeframe for lodging the claim. The application was listed for hearing to allow the parties to put submissions and lead evidence as to whether the application ought be accepted under s 29(3) of the Act. The section reads as follows: “(3) The Commission may accept a referral by an employee under subsection 29 (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.” 3 The respondent opposed the application. The respondent objected to Mr Wyatt acting as agent for the applicant in these proceedings. The Commission heard submissions from the parties on that issue and ruled that Mr Wyatt could appear. 4 The Commission’s discretion to accept an application outside the 28 day time period ought not be exercised unless it would be unfair not to do so. In determining whether it would be unfair not to accept this application out of time the Commission have taken into account the relevant principles outlined in the Industrial Appeal Court decision in Malik v. Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683 at 686: “(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie’s position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. (2) Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. (3) Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. (4) The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. (5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1501 (6) Consideration of fairness as between the applicant and other persons of a like position are relevant to the exercise of the Court’s discretion.” 5 Central to such issues before the Commission is the question of fairness. Heenan J further observed in Malik v. Paul Albert, Director General, Department of Education of Western Australia (op.cit) the following: “I accept that the concept of fairness is central to a decision whether or not to accept an application under s 29 which is out of time but, with all respect, I cannot accept the submission which was put in this case that it is fairness to the applicant which is either the sole or principle concerned. Fairness in this situation involves fairness to all, obviously to the applicant and to his or her former employer, but also to the public interest and to the due and efficient administration of the jurisdiction of the Commission which should not be burdened with a unmeritorious stale claim.” Background 6 The applicant was employed by the respondent for a period of some 17 months as a Guild Support Officer. Applicant’s submissions 7 The applicant submitted that he was prevented from submitting an application that he had been harshly, oppressively and unfairly dismissed by the respondent within the 28 day timeframe because information was not available at the time of the termination. It was submitted by the applicant that at the time he was terminated he was not aware whether the employing body the senate, had voted on his termination. The applicant submitted that it was subsequently revealed the senate had not made a decision and therefore, a correct process had not been followed. 8 The applicant submitted he was substantially out of pocket as a result of the termination and is currently employed in an inferior position. The applicant chose not to lead evidence on his own behalf. Mr Amos-O’Callaghan gave submissions that he had been approached by the applicant to provide advice on the applicant’s contract. Mr Wyatt gave evidence that the applicant had family reasons for wanting to continue in the position given his daughter was studying at ECU. 9 Mr Amos-O’Callaghan submitted that a number of attempts were made to contact representatives of the respondent, namely Mr Allen, the Guild Manager and Mr Sukhwant Singh. Mr Amos-O’Callaghan submitted he received assurances that a meeting would be held to discuss the matter. 10 Mr Amos-O’Callaghan submitted that a number of the members of the senate contacted were not aware the applicant had been terminated. Mr Amos-O’Callaghan suggested applicant was unaware he had been terminated. Mr Amos-O’Callaghan submitted that there was no information available to the applicant other than he had been terminated and given the reticence on the part of the respondent to respond to any of the approaches made by the applicant or representatives on his behalf the application itself was filed sometime later than it otherwise should have been. Respondent’s evidence and submissions 11 The respondent submitted that the applicant and the advocates representing the applicant advised the respondent that the application would be taken to the Commission on 19 October 2005. Counsel for the respondent submitted that the Guild Manager, Mr Allen received an e-mail from Mr Amos-O’Callaghan and subsequently contacted the respondent by telephone and e-mail on a number of occasions. It was submitted by counsel for the respondent that Mr Amos-O’Callaghan continued to write to the Guild Manager, Mr Allen directly despite the request by the respondent that he deal directly with the solicitors. Commission’s conclusions and findings 12 The Commission has considered all the evidence and submissions from the applicant and respondent in these proceedings. 13 Central to such a determination by the Commission is the concept of fairness. Fairness must involve fairness to all having regard to the employee, the employer and issues of public interest. In this matter, the application is out of time by some 77 days. There has been an inordinate delay and having regard for the delay, it appears to the Commission that the applicant’s principle reasons arose out of family affairs, personal commitments and financial restraints following his own dismissal. No evidence was submitted to this effect however the Commission has had regard for the circumstances and such matters are relevant in the considerations of this nature. 14 The Commission finds in this matter, even though it accepts the submissions that the applicant suffered some financial restraints, to extend the period out to 77 days is, having regard for all other factors, unacceptable. Relevant to the Commission’s determination has been that in the correspondence submitted by the applicant to the respondent immediately following his termination at no stage was the termination contested. The Commission so finds. 15 As to the issue of prejudice. In this particular case, the respondent had no knowledge the claim was being contested until some 67 days had lapsed. The Commission has considered the issue of prejudice to each of the parties and finds in these proceedings prejudice to the respondent outweighs prejudice to the applicant. 16 It is clear to the Commission that the time limits imposed by the Act are to be complied with and on the clear facts of this matter this has not occurred. An extension of time in matters such as this is not to be automatic and a discretion resides with the Commission to enable it to do so where it would be unfair not to accept the application out of time. Not only is the length of delay extensive in the Commission’s view the explanation by the applicant is somewhat less than convincing. Both the applicant’s and respondent’s submissions were confusing and particularly adversarial and at times appeared to work against the interest of each of the parties they were seeking to represent. 17 The tests set out in the Malik decision (op.cit) have not been met in this matter and for those reasons the application for extension of time to file the application will not be granted and an Minute of Order dismissing the application will now issue. 1502 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 2006 WAIRC 04566 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DAVID BIRCH APPLICANT -v- EDITH COWAN UNIVERSITY STUDENT GUILD RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE TUESDAY, 20 JUNE 2006 FILE NO U 73 OF 2006 CITATION NO. 2006 WAIRC 04566 Result Application dismissed Representation Applicant Mr R. Wyatt and Mr R. Amos-O’Callaghan Respondent Mr D. Singh (of counsel) Order HAVING heard Mr R. Wyatt and Mr R. Amos-O’Callaghan who appeared on behalf of the applicant and Mr D. Singh (of counsel) on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders – THAT the application made under s.29(1)(b)(i) be, and is hereby dismissed. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2006 WAIRC 04627 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JOHN COLE APPLICANT -v- CRYSTAL WATERS IRRIGATION RESPONDENT CORAM COMMISSIONER S WOOD HEARD THURSDAY, 22 JUNE 2006 DELIVERED TUESDAY, 27 JUNE 2006 FILE NO. U 355 OF 2006 CITATION NO. 2006 WAIRC 04627 CatchWords Termination of employment – Harsh, oppressive and unfair dismissal –Application referred outside of 28 day time limit – Unfair not to accept out of time – Industrial Relations Act 1979 (WA) s 29(3) Result Application accepted out of time Representation Applicant Mr J Cole Respondent Mr K Trainer as agent Reasons for Decision 1 This is an application pursuant to s.29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”). The application came on for hearing pursuant to s.29(3) of the Act. The applicant was dismissed on 2 March 2006. He lodged his application on 1 May 2006. The application then on its face is some 32 days out of time. 2 As to the reason for the delay in filing the application, the applicant says as follows: “I have wrongly submitted a claim to the fedral industrial relations as I was advised to by a legal aid advisor. My claim lodged 22/3/06 has been rejected stating beyond durisdcition ofthe commission I have spoken with law employment service I am advised that this is the correct channel. I will send seperatly a brief statement that I sent to fedral ind. If I don’t have a case please advise as I do not want the added expense of registering. Thankyoui” 3 The respondent in the Notice of Answer and Counterproposal says that they had to dismiss Mr Cole on 2 March 2006 due to financial considerations. They say that Mr Cole was on workers compensation, it was difficult to get a temporary replacement, and they were losing substantial revenue during a peak cycle for their business. Mr Cole had been on workers compensation since 28 October 2005. They requested that the application be rejected as out of time and that, “an earlier application with the AIRC has been dismissed”. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1503 4 At hearing Mr Cole, the applicant, and Mr Sinclair, the proprietor of the business, gave evidence. There is no issue of credibility. The only real area of conflict in the evidence is that Mr Sinclair says that, in a telephone conversation with Mr Cole on 9 May 2006 about the termination benefits to be paid to Mr Cole, Mr Cole said words to the effect that he had two chances to get him and that he would see him in court. Mr Cole does not remember the conversation in detail, but denies that he said this. I am prepared to accept Mr Sinclair’s account of the conversation. Mr Cole was clearly upset by the dismissal and the termination payments and remains so. 5 Mr Sinclair displayed profit and loss statements which showed that, as a result of Mr Cole’s absence on workers compensation, the respondent had suffered a substantial loss of revenue. I accept this evidence. Mr Sinclair says that the decision to dismiss Mr Cole was made purely for financial reasons. His wife and he looked at the revenue figures and future work and decided that they could not continue to employ Mr Cole. I accept this evidence. 6 Mr Sinclair says that he tried to get a temporary replacement for Mr Cole and advertised in the West Australian and through Seek.com. He had no success and used some subcontractors for work which he would normally use in periods of high demand. He is not sure whether he advertised in the West Australian past 11 November 2005, which is shortly after Mr Cole suffered an injury (ie 28 October 2005). I consider that it is probable that, given the evidence of Mr Cole and Mr Sinclair, the respondent did not advertise in the paper beyond this date. 7 The decision to dismiss Mr Cole was taken shortly after a meeting between the respondent and Mr Cole’s rehabilitation officer on 21 February 2006. Mr Cole’s unchallenged evidence is that the meeting was to discuss the return to work of Mr Cole on light duties. Mr Cole says that at that time he was at 70 to 80 percent capacity. Mr Sinclair rejected the proposal of a return to work. He says that his business is a small operation and that there were no light duties available. Mr Cole says that he was contacted by Mr Sinclair on 27 February 2006 and asked to attend a meeting. The two men met on 2 March 2006 and Mr Sinclair advised Mr Cole that he was terminating his services for financial reasons. Mr Sinclair says that the meeting lasted about 30 minutes and that Mr Cole walked out of the meeting. A letter of termination was later sent to Mr Cole. Subsequently they had a discussion and disagreed about the correct amount of termination payment. Mr Sinclair asked Mr Cole to specify in writing what he considered his entitlements to be. This was never done. Mr Cole says that he did this verbally and it was Mr Sinclair’s responsibility to get it right. 8 Mr Cole says that he sought advice from Legal Aid who told him to make an application for unfair dismissal in the Federal Commission. The application was lodged on 22 March 2006. The Federal Commission then dismissed the application for lack of jurisdiction. Mr Cole was advised of this on 19 April 2006. He says that he then sought advice from the Employment Law Office who told him to apply to the Western Australian Commission. Mr Cole says that he also contacted the State Commission and that he was aware of time limits for applications in both jurisdictions. He lodged his application in the State Commission on 1 May 2006. I accept this evidence. 9 Mr Cole sought and obtained new employment after his dismissal. He commenced in a new job on 27 March 2006. The salary for the new position is $40,000 per annum. His salary with the respondent was $39,000. It is common ground that Mr Cole was paid pursuant to his employment with the respondent until 30 March 2006. There is a dispute as to whether both workers compensation payments and notice payments should have been paid. In any event, albeit it was earlier a matter of conflict, Mr Sinclair increased the notice payment to Mr Cole from 2 to 3 weeks. ISSUES AND CONCLUSIONS 10 The law in relation to s.29(3) applications is as outlined in the decision of Malik v Paul Albert, Director General, Department of Education of Western Australia 84 WAIG 683. Steytler J in his judgment says: “Like E M Heenan J, I consider that the principles enunciated by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 are apposite. As E M Heenan J has said, Marshall J there identified the following six "principles" (at 299 - 300): "1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion."” 11 Mr Cole clearly sought to contest his dismissal. The evidence of Mr Sinclair as to the conversation on 9 March 2006 is proof of that. The length of delay is 32 days. I accept the reasons provided by Mr Cole for the delay. He sought legal advice, acted upon this and then found that he needed to lodge an application in the State Commission. He sought further legal advice and then lodged that application. I consider that Mr Cole has provided a valid reason for the period of delay. The prejudice to the respondent is simply that he will have to face the claim for unfair dismissal, concerning a dismissal which took place only a matter of months ago. Each of these factors weighs in the applicant’s favour. 1504 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 12 As for the question of merit, whilst clearly at this point I do not decide this, I consider that Mr Cole has an arguable case. As stated, I accept that Mr Cole was dismissed for financial reasons. It was not that the respondent did not need someone to do the job, it was because they say that they could not get anyone to do the job on a fill in basis. I am not convinced by Mr Sinclair’s evidence that that avenue was pursued with regular vigour. Mr Trainer for the respondent submits that if the dismissal can be seen as a breach of the Workers Compensation and Injury Rehabilitation Act 1981, then enforcement of that is a matter for the Magistrate. The Commission should not concern itself with that question. Even if I were to accept that submission, which I do not, the manner of dismissal was abrupt and lacked any warning or real dialogue with the applicant. The fact that Mr Cole was lawfully on workers compensation, and undergoing rehabilitation, is an aspect of potential unfairness. Someone who was truly being made redundant, due to financial considerations, would legally be entitled to more consideration than was afforded Mr Cole. Similarly it is the case that it is often more beneficial to seek a new position when one is employed. Notwithstanding the deteriorating financial position of the respondent, Mr Cole may have enjoyed some forewarning and time to obtain new employment. 13 Weighing the criteria I find that it would be unfair not to accept Mr Cole’s application which was lodged out of time. I would make a declaration to that effect. 14 The respondent, prior to calling evidence, and again in closing submitted that the matter should be dismissed in the public interest. I do not need to address again the argument of the respondent concerning enforcement, or the fact that the Commission is exercising arbitral power. The real public interest issue is whether there is any loss. The Full Bench in Civil Service Association of WA Incorporated v Director General, Department of Consumer and Employment Protection 82 WAIG 952 says as follows: “We agree entirely with what Fielding C, as he then was, said in Michael C Johnston v Wesfarmers Ltd 70 WAIG 2434 at 2435:- “There seems to me to be little point in proceeding with what at best would be an academic exercise. The Commission’s charter is to deal with practical solutions and is not such as to invite academic solutions. Furthermore, it is hardly consistent with the public interest that it should be engaged in such an exercise …”” 15 The applicant at a hearing under s29(3) is not necessarily tasked with proving loss. The question of loss was raised in the Notice of Answer and Counterproposal: “Mr Cole has started work on 27/3/06 and was supported up to and beyond that date by us via Workers Compensation Insurance (we have to pay out this money and eventually be reimbursed causing just a little hardship to us) For that reason I do not believe that financial hardship has been suffered by Mr Cole.” 16 However, there is nothing more specific and I am conscious that the applicant is self-represented. The applicant has a new job which on its face pays $1,000 per annum more than his job with the respondent. The applicant started this job before his payments from the respondent were exhausted. If the applicant can prove that he was dismissed unfairly, and this issue has not been decided at this point, and if there is no loss, then I would dismiss the application in the public interest. In saying this I would adopt the reasoning expressed by the then Commissioner Fielding and endorsed by the Full Bench. The applicant has a duty to mitigate his loss and, on the evidence, he has done so. 17 Mr Cole says that he received the benefit of a vehicle. Mr Sinclair says unchallenged that this was simply for business purposes. I accept this evidence. However, Mr Cole says that he regularly worked overtime, albeit he did not have the figures to hand. The submission of the respondent was that the overtime was as required and should not be taken into account. In the circumstances I will have my Associate write to Mr Cole and direct that he specify his actual loss. I do so because the evidence raises a prospect that there may be no loss. I will undertake this step before the matter proceeds any further in hearing. 2006 WAIRC 04628 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JOHN COLE APPLICANT -v- CRYSTAL WATERS IRRIGATION RESPONDENT CORAM COMMISSIONER S WOOD DATE TUESDAY, 27 JUNE 2006 FILE NO U 355 OF 2006 CITATION NO. 2006 WAIRC 04628 Result Application accepted out of time Representation Applicant Mr J Cole Respondent Mr K Trainer as agent 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1505 Order HAVING heard the applicant on his own behalf and Mr K Trainer on behalf of the respondent, the Commission, pursuant to the powers conferred on it under section 29(3) of the Industrial Relations Act, 1979, hereby declares: THAT it would be unfair not to accept the applicant’s referral under s.29(1)(b)(i). (Sgd.) S WOOD, [L.S.] Commissioner. 2006 WAIRC 04545 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MARK GEORGE CURTIS APPLICANT -v- AUSDRILL LIMITED RESPONDENT CORAM COMMISSIONER S J KENNER HEARD THURSDAY, 11 MAY 2006 DELIVERED WEDNESDAY, 14 JUNE 2006 FILE NO. U 246 OF 2006 CITATION NO. 2006 WAIRC 04545 Catchwords Industrial law - Termination of employment - Harsh, oppressive and unfair dismissal - Point at which applicant's contract of employment was terminated by respondent - Principles applied - Applicant harshly, oppressively and unfairly dismissed - Application upheld - Failure by applicant to mitigate loss - Other matters which Commission considers relevant in specific circumstances of case - Nominal compensation ordered - Industrial Relations Act 1979 (WA) s 23A(6), s23A(7)(c), 29(1)b)(i) Result Order issued Representation Applicant Mr G McCorry as agent Respondent Mr A Cameron of counsel instructed by the Australian Mines and Metals Association Reasons for Decision 1 At all material times the applicant was employed as a Driller and was based at the St Ives mining operation at Kambalda in Western Australia. He commenced employment on or about 17 February 2003. The applicant’s employment came to an end in controversial circumstances on or about 13 March 2006 as a consequence of a verbal altercation between the applicant and the respondent’s site manager. 2 The applicant now brings these proceedings under s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) alleging that he was harshly, oppressively and unfairly dismissed by the respondent. The applicant does not seek reinstatement or re- employment as he considers that the circumstances of the termination of his employment arose out of victimisation. The applicant in the alternative seeks compensation for his loss and injury sustained. 3 The respondent denies that the applicant was dismissed unfairly. In short, it says that the applicant was dismissed for his abusive and threatening behaviour towards the respondent’s Site Manager and that its actions were justified. Background Facts 4 The respondent is engaged in the industry of drilling and blasting contracting. As a Driller, the applicant’s main duties were drilling blast holes in the open pit at the St Ives mine. The applicant testified that he worked six days per week on a day and night shift pattern. He worked 12 hour shifts and was paid on average, some $3,800 per fortnight. The applicant lived in Kambalda and travelled to and from the mine site by bus. The applicant testified that he had known the respondent’s Site Manager, Mr Davis, for about 18 months and Mr Davis was, prior to his appointment as Site Manager, a leading hand. 5 The applicant said he generally got on with Mr Davis but referred to a number of safety matters that he said he had raised both with Mr Davis and more senior management but those issues were not adequately resolved, according to the applicant. On or about 13 February 2006, the applicant failed a random drug test which was administered in accordance with the applicant’s terms and conditions of employment, a copy of which was tendered as exhibit R1. Copies of the laboratory reports confirming the positive drug test results were tendered as exhibits both R2 and R3. In accordance with clause 9.3 of the applicant’s written contract of employment, an employee who returns a positive drug test result is suspended from work without pay and if the employee does not satisfactorily pass a further drug test within 14 days of a positive result, then the employee’s employment will be terminated “subject to investigation into the circumstances at the time” . 6 It was common ground that the applicant did not successfully pass further drug tests within that time, however, Mr Davis gave the applicant a further period in order to return a negative test which he did. The applicant returned to work on 8 March 2006. 1506 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 7 A couple of days later on Friday 10 March, the applicant testified that he went out with friends on that evening and said he was not fit for his next rostered shift the following Saturday morning. He said he asked his then partner to telephone the respondent’s office at about 6.15am but received no response. On the applicant’s next rostered shift of Monday 13 March the applicant arrived with another employee about 15 minutes late for work. According to the applicant, Mr Davis called him over and asked him about his absence the previous Saturday morning. On the applicant’s evidence, Mr Davis said words to the effect “what the f... hell are you doing to me? Where were you on Saturday?”. The applicant said he replied that he was “crook and that I tried to get my Mrs to ring up to....”. Mr Davis asked why the mobile telephone number was not used to which the applicant replied he didn’t have a note of that number. The applicant testified that Mr Davis then said words to the effect “do you really want your job here?” and the applicant replied in words to the effect “the way things are... I really don’t know”. Mr Davis, according to the applicant, replied in words to the effect “That’s it. You’re finished. Get your gear and I’m taking you home”. 8 The applicant denied that he abused or threatened Mr Davis at this point. Other employees were present at this time outside the crib room and were preparing to leave for the days’ work. 9 The applicant said he went into the crib room to collect his gear and said he was shocked and angry. He went back outside and told Mr Davis in words to the effect that “I’m not f.... getting into the car with you. You have to get someone else to take me home”. There was then further abuse of Mr Davis by the applicant, to which I will further refer to later in these reasons. 10 The applicant said he took Mr Davis’ responses to constitute a dismissal and he went home with another leading hand. He testified that he later telephoned a senior manager of the respondent, a Mr McCulloch, who informed him that he had to back his Site Manager’s decision. 11 The applicant gave evidence that the dismissal caused some stress to him and put strain on his relationship with his then partner. He also said that as most mines were underground and he didn’t wish to work underground, he decided that the best option was to relocate to Perth. The applicant testified that he then spent some weeks preparing his house for sale and rearranged his personal affairs and arrived in Perth on 22 April. The applicant obtained some casual work starting on or about 5 May as a handyman working between 20 to 30 hours per week at the rate of $35 an hour. As at the date of the hearing of this matter, the applicant had worked for a few days only and had yet to be paid. 12 The version of the events according to Mr Davis was not substantially different. Mr Davis testified that after the incident he recorded a note in his diary tendered as exhibit R4. This note subsequently formed the basis for a written statement that he prepared dated 10 April 2006, which was tendered without objection as exhibit R5. Mr Davis affirmed the content of the 10 April statement. He testified that in the initial exchange with the applicant, when he asked him about his absence from work on the Saturday morning, he did not tell the applicant that “you’re finished” or words to that effect. He certainly said that after asking whether the applicant wanted his job or not the applicant replied to the effect that “if you want me to stay, I’ll stay or if you don’t f... want me here then I’ll f... go”. Mr Davis considered this to be unacceptable behaviour and he told to him to get his gear and he would take him home. This was after giving the applicant an extension of time to pass his drug test, the applicant having been absent from duty and been late for work. 13 According to Mr Davis, he did not intend to dismiss the applicant at that point. Rather as things were getting out of hand, he was going to take the applicant home and to think about the situation. This was so according to Mr Davis, because the applicant failed to give him a plausible explanation for his absence on the previous Saturday. 14 Immediately after the initial exchange, Mr Davis said that the applicant stormed off and in the presence of others started yelling abuse at him in words to the effect “you’re a c... head mate... nobody likes you.. You are a big fat useless c... You’ve been here three years and you have no friends... Nobody likes you, you dumb fat f... I’ll get you, you c... Don’t worry about that”. Mr Davis testified that the applicant also said words to the effect “who’s got the Mine Manager’s number? I will ring them and asked them what they think about drugs on site”. 15 According to Mr Davis, the applicant, after refusing to get into Mr Davis’ vehicle and while walking towards another employee who took him home, continued to yell out obscenities and said further words to the effect “I wanted you to sack me anyway, this place is f...ed and it has been f...ed for two years now, no one likes it here anymore because no one likes you because you are a useless fat f...”. The applicant was said to have further uttered words to the effect “it doesn’t matter anyway I have a couple of jobs to go to”. 16 In cross-examination, the applicant largely conceded that he used the words recorded in the evidence of Mr Davis save that he denied he made the further comments after walking towards the employee who took him home. The applicant also denied that in the first volley of abuse, he said to Mr Davis that he would “get him”. Consideration 17 In terms of my findings, to the extent that there was some conflict on the evidence between the testimony of the applicant and Mr Davis, I prefer that of Mr Davis. Whilst Mr Davis was cross-examined on some variations between his diary note and his later written statement, I am satisfied that Mr Davis’ recollection of the conversations and the events in question was better informed than that of the applicant. He did make an initial note contemporaneous with the events in question. The applicant admitted that he was angry and was shouting at Mr Davis. I find that the general content and tenor of the abuse by the applicant was as outlined by Mr Davis in his testimony. 18 A critical issue to determine in this matter is the point at which the applicant’s contract of employment was terminated by the respondent. It was the contention of the applicant, through his industrial agent, that it was at the point of Mr Davis telling the applicant to “get his gear and he would be taken home”, that in context, the dismissal took place. On the other hand, counsel for the respondent argued that it was only after the various volleys of abuse by the applicant, that the termination of employment took effect. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1507 19 There was no clear indication either orally or in writing as at that time that pointed directly to a dismissal, in the sense that words were used to the effect that the applicant’s employment was terminated or he was dismissed or the like. The only documentary evidence was an employment separation certificate tendered as exhibit A2 which referred to the termination of the applicant’s employment due to “misconduct by reason of breach of a safety policy”. The separation certificate bears a date of 20 March 2006, about a week after the events in question. This was followed by a letter dated 18 April 2006 tendered as exhibit A3, from the respondent’s Payroll Administrator. This letter referred to an error on the applicant’s separation certificate and that the reason for termination of employment was incorrectly described as “Breach of Safety” with the letter further noting that the reason should have been “Gross Misconduct”. 20 In the absence of any other evidence before the Commission as to the timing of the applicant’s dismissal, it is necessary to characterise the events as they occurred on 13 March in order to determine their most likely construction. As a general proposition, where plain or unambiguous words of resignation or dismissal are used, resort should not be had to surrounding circumstances to determine whether a reasonable employer or employee would have understood the words used to be those of resignation or dismissal: Macken, McCarry & Sappideen “The Law of Employment” 4th Ed pp 168 – 170. However, in the case of ambiguity, then it seems recourse may be had to the surrounding circumstances to confirm the apparent intention: BG Gale Ltd v Gilbert (1978) ICR 1148 at 1152 – 1153; Tan v Kafetzis t/as Gabriel’s Cafe (1999) 79 WAIG 2987. 21 In my opinion, taken in context, the words used by Mr Davis to the effect “get your gear and I will take you home”, those words coming immediately after the exchange between the applicant and Mr Davis about keeping his job or not, conveyed a sufficient intention in my view to terminate the applicant’s employment. There was no indication by Mr Davis, or anyone else on behalf of the respondent, that the applicant was merely being suspended or stood down on pay so the respondent could consider its position. Furthermore, there was no indication given as to when the applicant would return to duty and if so, under what circumstances. The applicant’s evidence was he certainly took the statements made by Mr Davis, and the action to accompany those words, in being him being taken from the site and driven home, as words and actions of dismissal. In my opinion, objectively, that conclusion was reasonably open. Initially, that construction of the events may also explain, but certainly does not excuse, the applicant’s immediate verbal attack on the respondent and Mr Davis. 22 In the alternative however, even if it is necessary to look to surrounding circumstances, then in my view, they support the construction that I have placed upon these events. The timing and context of the words used are important. Mr Davis’ statement to the applicant in words to the effect that he should get his gear and be taken home, came immediately after the exchange between the applicant and Mr Davis as to whether or not the respondent wanted the applicant to stay in the job. Furthermore, the applicant had only two days earlier failed to attend for a rostered shift without providing notice to the respondent as he was required to do and he was late to work on the day in question. 23 There is the further earlier event of the applicant’s failed drug test and the respondent’s indulgence granted to him to return a negative test over a period of time longer than that specified in the applicant’s contract of employment. Whilst in my opinion, given the respondent waived its right to terminate the applicant’s contract of employment by not strictly enforcing its terms, and therefore is now estopped from relying upon that as a ground for dismissal, in the overall context of the history of events it is not insignificant. It seems to me that taken together, and in particular with the applicant’s manner of response to Mr Davis on the Monday morning when he arrived late for work, that Mr Davis would have been more than likely quite unhappy with the applicant’s behaviour and conduct taken in its totality. This is quite understandable in the circumstances. 24 I am therefore satisfied that the initial events as they transpired on 13 March with Mr Davis directing the applicant to get his gear and he be driven home, constituted words of dismissal to terminate the applicant’s employment, in effect summarily at that time. The applicant did not attend for work after that time. 25 The reason alleged for the dismissal of the applicant was abusive conduct and behaviour, however I am satisfied that this occurred immediately after the act of dismissal. There was no other substantive ground for dismissal at that point, despite the applicant being absent from work the previous Saturday, which was not justification of itself to dismiss that applicant. In these circumstances, on the test in Miles v Federated Miscellaneous Workers Union of Australia, Western Australian Branch (1985) 65 WAIG 385 I find the dismissal of the applicant to been harsh, oppressive and unfair. 26 The next question is what remedy should be granted by the Commission. The respondent argued, and the applicant accepted, that in the circumstances reinstatement or re-employment was not tenable. Given the nature of the abuse metered out by the applicant, this is certainly the case in my opinion. 27 As reinstatement or re-employment is not a remedy to be considered by the Commission, the applicant submitted that he should be compensated for his loss from the date of his dismissal. The agent for the applicant attempted to explain the applicant’s failure to mitigate his loss given his personal circumstances. Counsel for the respondent argued however, that if any order for compensation for loss is to be made by the Commission, then in the circumstances it should be nominal. 28 The relevant powers of the Commission in relation to a claim of unfair dismissal are set out in s 23A of the Act. Relevantly, s 23A(6) and (7) provide as follows: “(6) If, and only if, the Commission considers reinstatement or re-employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal. (7) In deciding an amount of compensation for the purposes of making an order under subsection (6), the Commission is to have regard to — (a) the efforts (if any) of the employer and employee to mitigate the loss suffered by the employee as a result of the dismissal; (b) any redress the employee has obtained under another enactment where the evidence necessary to establish the claim for that redress is also the evidence necessary to establish the claim before the Commission; and 1508 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. (c) any other matter that the Commission considers relevant.” 29 Relevant principles as to the making of findings as to loss and injury and orders for compensation in light of such findings, were discussed by the Full Bench in Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8. The power of the Commission under the Act, as it then was, to order compensation for loss or injury was set out in s 23A(1)(ba) and was in the following terms: “(ba) subject to subsections (1a) and (4), order the employer to pay compensation to the claimant for loss or injury caused by the dismissal; and” 30 The Act was amended by amending Act No 20 of 2002 which inserted a new s 23A in its present terms. Notwithstanding this, I remain of the view that I expressed in Bogunovich, at 13 – 14, that in assessing compensation for loss and injury as found, the Commission should not have regard to the conduct of the employee or employer which led to the dismissal itself. It is that conduct which is relevant to the Commission’s finding in the first instance, whether a dismissal is harsh, oppressive or unfair within the terms of the statute. 31 Whilst it has always been accepted by the Commission that an employee in an unfair dismissal claim is required to mitigate his or her loss, Parliament has now made that requirement express in s 23A(7)(a) of the Act, following the amendments made in 2002. It is also the case that despite the duty to mitigate, the onus of proving a failure to mitigate is upon a respondent in such a claim: Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] VR 507; Goldburg v Shell Oil Co of Australia Ltd (1990) 95 ALR 711; Bogunovich at 8 and 13. An employee who is wrongfully dismissed and unreasonably acts by failing to mitigate his loss would only be entitled to nominal damages: Brace v Calder [1895] 2 QB 253; Beckham v Drake (1849) 2 HLC 579 at 607- 608. 32 In this case I am not satisfied on the evidence that the applicant has taken any reasonable steps to mitigate his loss. The applicant conceded in his evidence, and it is well known, that the job market in the mining industry in this State is very buoyant. He accepted that he could have obtained another position as a Driller on a mine site almost immediately. I do not accept that attending to some of his personal affairs supplanted his obligation to seek and obtain alternative employment, which he could have easily done on the evidence, in this case. The applicant's testimony was he did not endeavour to look for alternative work until he arrived in Perth on or about 22 April 2006 and found some casual work from 5 May. This was work as a handyman and not in the mining industry, where he could have clearly enhanced his income. Whilst I find the applicant's loss in terms of his loss of remuneration to have been some $15,200, being a period of about 8 weeks to the date of the hearing, and may be ongoing, I take into account as s 23A(7)(a) of the Act requires, the failure of the applicant to effectively mitigate his loss, which has been established by the respondent. 33 In my opinion, based on the foregoing, I consider that the applicant would have been able to obtain another position as a Driller in the industry very readily but he took no steps at all to do so. Indeed, the applicant took no steps to obtain any form of alternative employment at all until he returned to Perth some considerable time after his dismissal. However, that is not the end of the matter. I return to the abuse metered out to both Mr Davis and the respondent. On the findings the Commission has made, this abuse was a profane, vitriolic and sustained attack on Mr Davis and the respondent. It occurred in the presence of other employees of the respondent and was targeted particularly and spitefully towards Mr Davis in terms that were no doubt hurtful to him. It was of such magnitude that the applicant conceded that it should tell against any order of reinstatement or re- employment, should his claim succeed. In my view, given its proximity to the dismissal, this is a matter the Commission can have regard to for the purposes of assessing compensation as being a matter “the Commission considers relevant” under s 23A(7)(c) of the Act, in the specific circumstances of this case. In my view the Commission should be slow to reward such conduct, in the present circumstances, by way of an award of compensation. 34 Taking all of these matters into account, including the fact that the applicant has made some income from casual work to the date of the hearing, for the purposes of s 23A(7) of the Act, in accordance with equity and good conscience, I propose to only make a nominal award of compensation in this case in the sum of $500.00. 35 A declaration and an order will now issue. 2006 WAIRC 04562 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MARK GEORGE CURTIS APPLICANT -v- AUSDRILL LIMITED RESPONDENT CORAM COMMISSIONER S J KENNER DATE MONDAY, 19 JUNE 2006 FILE NO/S U 246 OF 2006 CITATION NO. 2006 WAIRC 04562 Result Order issued Representation Applicant Mr G McCorry as agent Respondent Mr A Cameron of counsel instructed by the Australian Mines and Metals Association 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1509 Declarations and Order HAVING heard Mr G McCorry as agent on behalf of the applicant and Mr A Cameron of counsel on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 (“the Act”), hereby – 1 DECLARES that the applicant was harshly, oppressively and unfairly dismissed from his employment as a Driller on or about 13 March 2006. 2 DECLARES that reinstatement or re-employment is impractical. 3 ORDERS the respondent to pay to the applicant the sum of $500.00 as compensation for loss less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid within 21 days of the date of this order. (Sgd.) S J KENNER, [L.S.] Commissioner. 2006 WAIRC 04565 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JASON DUNNE APPLICANT -v- PLACER DOME KALGOORLIE LIMITED RESPONDENT CORAM COMMISSIONER J L HARRISON HEARD TUESDAY, 2 MAY 2006 DELIVERED TUESDAY, 20 JUNE 2006 FILE NO. U 256 OF 2005 CITATION NO. 2006 WAIRC 04565 Catchwords Termination of employment - Harsh, oppressive and unfair dismissal - Principles applied –Dismissal not harsh, oppressive or unfair in the circumstances – Application dismissed – Industrial Relations Act 1979 (WA) s 29(1)(b)(i) Result Dismissed Representation Applicant Mr J Dunne on his own behalf Respondent Mr A Cameron (as agent) Reasons for Decision 1 This is an application by Jason Dunne (“the applicant”) pursuant to s29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”). The applicant alleges that he was unfairly terminated from his position as a processing team leader with Placer Dome Kalgoorlie Pty Ltd (“the respondent”) on 25 November 2005. Background 2 There are a number of relevant facts that are not in dispute. The applicant became an employee of the respondent around September 2003 when the respondent took over Aurion Gold. When the applicant was terminated on 25 November 2005 he was working on a full time basis at the Paddington Gold mine on a gross salary of $83,527 per annum. At the time the applicant was promoted to the position of processing team leader in March 2005, supervising three employees, he signed a contract confirming his promotion and his conditions of employment (Exhibits R3 and R4). Applicant’s evidence 3 The applicant stated that he worked out the basics of using his computer himself and that throughout his employment with the respondent he was given limited training about using his computer and he was not given any documents to assist him to use his computer. The applicant stated that after requesting training in the use of his computer for some time the applicant was to attend a computer course which was to take place on 25 November 2005. The applicant stated that he had to ask a colleague to set up the folders on his computer and the applicant stated that he had a computer at his desk on which he sent e-mails and work orders and he stated that he had difficulty generating documents on his computer. 4 The applicant stated that whilst attending a training course for working at heights on 22 November 2005 he was asked to attend a meeting that day with Mr Dan Schwann, Processing Superintendent, Mr Neil Lester, Processing Manager and Mr Greg Mincham, Human Resources Manager. The applicant gave evidence that at this meeting he was given a summary of e-mails sent by him from June 2005 through to 10 November 2005 and he was given a document headed ‘Jason Dunne’s Movie Folder as at 10 November 2005’ (Exhibits A1(a) and (b)). The applicant stated that he was told that some of the e-mails he had sent which were contained in one of the summaries given to him at the meeting were pornographic and offensive and he was also advised that some of the movies stored in his movie folder were pornographic and offensive. The applicant stated that he did not see anything wrong with the movies in this folder and that after colleagues sent him these movies he put them in a separate folder to remove them from his in-box. The applicant stated that he was then told that he was to be stood down for storing and 1510 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. sending offensive material, pending a further investigation. The applicant stated at this meeting that Mr Rob Hunt, a relief team leader, had sent most of the inappropriate e-mails to the applicant. 5 When the applicant was contacted by the respondent on 25 November 2005 and asked to attend another meeting he was advised at the time that he could bring a witness with him, however the applicant declined this offer. At this meeting, attended by the applicant, Mr Schwann, Mr Mincham and Mr Lester, the applicant was again asked about his response to the issues put to him on 22 November 2005 and the applicant stated that he had already explained his position. The applicant stated that he was then told that he was to be terminated and he was given a letter confirming his termination (Exhibit A2). After the meeting finished the applicant was advised that he would be paid four weeks’ pay in lieu of notice. 6 The applicant commenced alternative employment on 24 January 2006 as a process technician on a remuneration package of $78,050 per annum (Exhibit A3). 7 The applicant stated that as a team leader he received lots of e-mails and he stated that most if not all of the offensive e-mails he received had been sent to him by fellow employees. The applicant stated that he sent the e-mails in question to other employees except for one e-mail which he sent to his brother and the applicant believed that the content of this email was not inappropriate. The applicant stated that he did not download any inappropriate material from the internet but the applicant conceded that he forwarded some e-mails that the respondent deemed to be inappropriate to workers in his crew. 8 The applicant complained that the respondent’s IT system allowed inappropriate e-mails to be circulated and that the respondent had no safeguards in place to prevent inappropriate e-mails being sent to the applicant. The applicant maintained that Mr Mincham had forwarded some of the inappropriate e-mails that he had received as well as a processing manager Mr Rodney Johns who no longer worked for the respondent. The applicant maintained that Mr Lester never explained the respondent’s IT rules to him and the respondent did not give him the chance to redeem himself nor was he offered any retraining. The applicant also claimed that he was treated unfairly as other employees who had been involved in sending and receiving inappropriate material only received written warnings. The applicant stated that he never had a day off work, he put his heart and soul into his job and he was disappointed that the respondent did not give him a second chance. The applicant stated that he had not previously received any warnings about his behaviour or performance and that the respondent had twice promoted him. 9 The applicant gave evidence that three other supervisors were terminated at the same time he was terminated for committing the same breaches. 10 Under cross-examination the applicant was asked about presentations made by Mr Mincham in September 2003 concerning the respondent’s Employee Relations Manual (“ERM”). The applicant remembered that Mr Mincham stated at a meeting that copies of the ERM were available on the respondent’s intranet and he agreed that he could download a copy of this manual but he said that this was difficult to do because of a lack of time. The applicant confirmed that a letter confirming his salary and employment status given to him on 27 February 2004 refers to the respondent’s policies and procedures being included as part of his contract with the respondent and that if employees could not access these documents by computer they should ask their section superintendent for a copy (Exhibit R1). 11 The applicant agreed that he signed a document titled ‘Form of Acknowledgement’ confirming that he had received, read and understood the respondent’s Code of Business Conduct (“the Code”). This form is as follows (formal parts omitted): “Form of Acknowledgement As Placer Dome is an entity comprised of individuals, it can only comply with or violate the law or the Placer Dome Code of Business Conduct (the “Code”) through the actions of its employees. Therefore, it is the unqualified responsibility of all employees working for or on behalf of Placer Dome to observe and comply with all applicable laws and the Code in the performance of their duties. As defined in the Code and used in this Acknowledgement, Placer Dome includes Placer Dome Inc., its subsidiaries and joint ventures managed by Placer Dome. 1) I acknowledge that I have received, read, and understand the code dated April 2001. 2) I certify that the provisions of the Code are in effect in my area of responsibility and the code has been provided to and has been reviewed with employees reporting to me. 3) I hereby certify that with respect to the year ended December 31, 2004 : N/A I have filed a report of a violation of the Code with Placer Dome; or N/A I have not filed any reports of violations of the Code with Placer Dome. (please check one of the above) 4) For the year ended December 31, 2004 , I hereby certify that, except as previously reported by me to Placer Dome: I have not breached or violated the code; and To the best of my knowledge, I am not aware of any violations of the Code by any other employees, whether they report to me or not.” (Exhibit R2) 12 The applicant stated that even though he acknowledged that he had read the Code he stated that he just looked at this document and signed it and did not read it because he was very busy at work. 13 The applicant stated that he was not in a supervisory position because he was not a decision maker. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1511 14 The applicant agreed that his last contractual arrangement with the respondent applied from 11 March 2005 and that the ERM formed part of this contract (see Exhibit R4). The applicant maintained however that he had not seen the respondent’s ERM and he stated that the Code was meant to be in a bundle of documents given to him by the respondent but it was not included in this package. 15 The applicant denied that the e-mail he sent to his brother contained material of an offensive nature and he maintained that the e-mail was humorous and well done (see Exhibit A1(a)). The applicant could not recall if a movie he sent to one of his team members, Mr Peter Hall on 25 June 2005 was extremely pornographic and involved bestiality. When asked if he forwarded extreme material to fellow workers the applicant stated that he only sent material to persons who would not find the images offensive. 16 The applicant was asked if he had reviewed a CD containing attachments to the e-mails and movies on the applicant’s computer that the respondent maintained were inappropriate which was provided to the applicant the day before the hearing (Exhibit R7). The applicant stated that he did not review the contents of the CD as he did not have a computer. 17 The applicant stated that a movie folder was established on his computer because it was easier to move the e-mails with movie attachments sent to him there as opposed to keeping them in his in-box. The applicant maintained that he did not remember a lot of the content of these movies. The applicant stated that after he was sent movies he moved them into the movie folder and did not go back to review them and the applicant regarded the storage of these movies in a folder as being similar to deleting them. The applicant maintained that he was too busy to remember all of the contents of each movie as he was too busy working. The applicant conceded that bestiality may be contained on some of the movies and he recalled one movie involving interactions between an octopus and a woman. The applicant agreed that some of the movies in his movie folder would be offensive to some people but he maintained that the material was not offensive to the people he sent them to and he maintained that he only sent the movies to friends. The applicant stated that he did not look at all of the movies Mr Anthony Carlton sent him and he stated that because he wanted to clear his in-box he put them in his movie folder. 18 The applicant agreed that he was advised at the first disciplinary meeting he attended on 22 November 2005 that some of the material on his computer was highly offensive and pornographic and that some material may involve criminal activity. The applicant agreed that he stated at this meeting that he did not really look at this material and that he was not computer literate. The applicant agreed that at the meeting he conceded that some of the stored material on his computer was highly offensive but the applicant denied that he stored movies to look at later. The applicant confirmed that he apologised for having some offensive material on his computer and he agreed that some of the material would be offensive to some people. The applicant gave evidence that at the meeting held on 25 November 2005 he stated that he could not believe what he had done and that his behaviour was out of character. The applicant stated that he made these comments because by then he was aware that other employees had not been terminated for storing and sending inappropriate material. 19 The applicant stated that he was never told that it was wrong to act in the way that he did and he stated that a friend told him to put the movies in a separate folder. The applicant could not recall if some of the e-mails sent to him had warnings on them to view them in private. The applicant stated that he did not have time tell the persons sending him inappropriate e-mails not to send them. The applicant was unable to give specific details of any e-mails he received containing inappropriate material that he claimed were forwarded to him via Mr Mincham. 20 The applicant stated that he did not send many e-mails and that when he was sent movies he sometimes did not look at them or did not review them in full. Respondent’s evidence 21 Mr Dean Robinson gave evidence by video link. Mr Robinson ceased being the respondent’s IT co-ordinator at the beginning of December 2005. Mr Robinson stated that on or about the middle of November 2005 Mr Mincham asked him to check the respondent’s e-mail system as employees were experiencing difficulties sending e-mails. Mr Robinson stated that the respondent’s IT system was congested because of an extensive amount of inappropriate material that was on the system and he reported this to Mr Mincham. Mr Mincham then asked him to further investigate information on the respondent’s IT system. Mr Robinson stated that as part of this further investigation he discovered that many employees had sent, received and stored a number of inappropriate e-mails and he reported this to Mr Mincham, Mr Lester and the respondent’s General Manager Mr Mark Fisher. Mr Robinson stated that he then undertook further investigations into this issue. Mr Robinson confirmed that the applicant had a number of stored movies in a folder called ‘movies’ and that this folder contained a large amount of non- work related material. Mr Robinson confirmed that he copied the mail boxes of all users sending and receiving inappropriate material and gave a copy of the contents of these mail boxes to Mr Lester and Mr Mincham. 22 Under cross-examination Mr Robinson stated that he did not check every employee’s mail box to locate inappropriate material and he stated that he only checked the mail box of those employees who were sending and receiving inappropriate material. Mr Robinson stated that the respondent did not have the resources to comprehensively check each employee’s mail box. Mr Robinson confirmed that material deleted from an employee’s mail box would not be picked up as part of his review however Mr Robinson stated that all e-mail links relevant to the sending and receiving of inappropriate material were checked. Mr Robinson stated that he was not directed to check only the applicant’s work area. Mr Robinson stated that it was difficult to set up a system to filter e-mails containing inappropriate material however he agreed that there were some processes that could have been put in place by the respondent to deal with blocking inappropriate information. When asked if his investigation was extensive enough to identify who was sending and receiving inappropriate e-mails Mr Robinson stated that his investigation covered as many departments and users as possible. Mr Robinson stated that it was difficult to review all e- mails sent and received by the respondent’s employees because this may impede the sending and receiving of legitimate work related e-mails. Mr Robinson stated that it was not always possible to ascertain who originated an inappropriate e-mail. 23 Mr Mincham gave evidence that when the respondent took over Aurion Gold he made presentations to employees about employees’ new employment contracts and he stated that he made sure that copies of the respondent’s ERM was made available to employees and when electronic copies could not be accessed by employees hard copies of the ERM were available 1512 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. for them. Mr Mincham was satisfied that all of the respondent’s employees were made aware of the existence of the ERM. Mr Mincham stated that during his presentations to employees they were also made aware of the Code. Mr Mincham stated that the respondent confirmed with employees in leadership roles about their awareness of and compliance with the Code on an annual basis. 24 Mr Mincham stated that an e-mail Mr Robinson showed him that he had discovered as part of his investigation into the blocked e-mail system contained offensive material. Mr Mincham then asked Mr Robinson to find out how this e-mail had come into the system and after a further investigation lasting approximately two weeks the respondent discovered that many of its employees were involved in sending and receiving and retaining inappropriate e-mails and movies. Mr Mincham stated that he was provided with copies of some of this material and the respondent took a snapshot of the materials in various individual’s mail boxes on a particular date. Mr Mincham stated that as a result of its investigations the respondent found a substantial amount of pornography and highly graphic and inappropriate material on the computers of a number of employees. Mr Mincham stated that he compiled a CD of the inappropriate material contained in the applicant’s mail boxes and Mr Mincham stated that pornography was contained in some of the material in the applicant’s mail boxes (Exhibit R7). [At the time Mr Mincham tendered this CD into evidence the applicant did not contest that the CD contained inappropriate material which was stored on his computer (transcript pp 62 to 63)]. After the offensive material was discovered on a number of computers Mr Mincham liaised with Mr Schwann to interview the employees concerned and Mr Mincham stated that he made handwritten notes of these interviews which were later typed up. Mr Mincham then tendered the records of the interviews with the applicant made by Mr Mincham held on 22 and 25 November 2005 (Exhibits R8 and R9). 25 Under cross-examination Mr Mincham denied that he had sent inappropriate e-mails to his work mates. 26 Mr Lester is the processing manager for the Kanowna Belle mine and since April 2005 he has also held this position at the Paddington Gold mine. Mr Lester stated that in the middle of November 2005 Mr Mincham advised him about the inappropriate use of the respondent’s e-mail system by a number of its employees and Mr Lester told Mr Mincham to obtain more information. Mr Lester stated that he saw a small excerpt of some of the offensive material located by Mr Robinson and it was his view that this material was highly pornographic. Mr Lester stated that it was then decided that Mr Robinson should conduct a full investigation which he did so and Mr Lester stated that he was satisfied that as extensive an investigation as possible was undertaken by the respondent. Mr Lester stated that this investigation took some time as it required checking employees’ mail boxes and checking who sent and received e-mails and Mr Lester stated that whilst a number of the e-mails had innocuous titles the material contained in these e-mails was sometimes pornographic. Mr Lester stated that he understood that some of the material located as a result of the investigation was extreme and involved bestiality and the respondent investigated the possibility of criminal activity in relation to this material however decided not to pursue this issue. 27 Mr Lester stated that all persons identified by the respondent’s IT department as being involved in sending, storing and receiving significant amounts of inappropriate material were interviewed by the respondent. Mr Lester stated that Mr Mincham’s summary of the interview with the applicant held on 22 November 2005 was accurate and added that the applicant’s movie folder contained movies which were highly explicit and he stated that some movies involved bestiality. Mr Lester stated that the applicant’s response at this meeting did not make sense as the applicant maintained that he was unaware about how to use the computer system yet he was able to forward inappropriate material to others including his brother. Mr Lester stated that the applicant’s attitude contrasted with some of the other employees involved in sending and receiving inappropriate e-mails particularly other non-supervisory employees who apologised and realised that they had made a mistake in contrast to the applicant who blamed a lack of training about the respondent’s computer system for his actions. Mr Lester stated that at this meeting the applicant apologised for storing a video containing bestiality and Mr Lester stated that the applicant told him that he was disappointed with himself. Mr Lester stated that he believed the applicant was disappointed more at being stood down and he stated that even though the applicant claimed that his supervisors were involved in sending inappropriate e-mails to him he did not see any e-mails from other supervisors. 28 Mr Lester stated that the summary completed by Mr Mincham of the meeting held on 25 November 2005 was accurate. Mr Lester added that the applicant, who was in a supervisory position, did not consider himself accountable for his actions at this meeting and Mr Lester maintained that the applicant did not take into account his leadership role and the effect of his actions on others. Mr Lester stated that he was concerned that the non-supervisory employees who were involved in sending and receiving inappropriate e-mails acknowledged that their actions were wrong and stated that as their supervisors were involved in sending and receiving this material they believed that their actions were being condoned by the respondent. Mr Lester stated that he did not go into this meeting with a view to terminating the applicant but as the applicant did not state anything by way of mitigation at this meeting then Mr Lester advised the applicant that he would be terminated. Mr Lester stated that all supervisory employees involved in sending, storing and receiving inappropriate e-mails were terminated and those employees who were not in leadership positions were given final warnings. 29 Under cross-examination Mr Lester denied that the applicant was unable to participate in computer training and he stated that he had no objection to the applicant undertaking this training. Mr Lester then stated that he was of the view that the computer training that the applicant was seeking would not have made any difference to his ability to access, store and forward inappropriate information or material on his computer. 30 Mr Lester confirmed that the applicant was terminated because he was in a leadership position and failed to act accordingly and he stated that the respondent also took into account the applicant’s behaviour and attitude when he was caught with a significant amount of inappropriate material on his computer which contrasted with the employees in non-supervisory positions who apologised from the outset and stated that they were aware that they had behaved inappropriately. Mr Lester stated that the respondent checked the computers of as many employees as possible as part of its investigation. Mr Lester stated that when the respondent came across employees who had one or two e-mails containing inappropriate material in their in-box which were received some months prior to the investigation and were not forwarded to anyone else those persons were not subject to any disciplinary proceedings. Mr Lester stated that when an employee was found to have been regularly involved in storing and forwarding inappropriate material they were subject to further investigation. Mr Lester stated that most of the activity involving receiving, sending and storing inappropriate material centred round the processing crew at the 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1513 Paddington Gold mine. Mr Lester stated that he was aware of one instance where a crew leader at another mine was sent inappropriate material and told the person who sent him this material not to do so again and deleted this material from his computer. Submissions 31 The applicant argues that his dismissal was unfair given the manner of his termination and because the respondent had not trained him in the use of a computer. 32 The applicant submits that he undertook his job honestly and that he was a good team leader. The applicant maintains that when the issue of inappropriate material being on his computer was put to him by the respondent he showed remorse and he stated that he had learnt from his experience. The applicant maintained that he did not review the material contained on the CD generated by the respondent and he stated that he gave it to his solicitor to review as he did not have a computer. The applicant understood the names of the people who had forwarded the offensive material to him would be on the CD however the CD only included film clips. 33 The respondent maintains that it had good reason to terminate the applicant. The respondent argues that the applicant received, stored and sent on material which was offensive in the extreme and the applicant’s actions in this regard were systematic and took place over a lengthy timeframe. The respondent acknowledges that not all of the movies stored in the applicant’s movie folder were inappropriate and that some were innocuous however it maintains that some movies in the applicant’s movie folder were highly inappropriate, pornographic and extreme and the applicant’s actions were contrary to the respondent’s policies and the applicant was well aware of these policies. 34 The respondent argues that as the applicant was a team leader he had a special responsibility to the employees he supervised. The applicant acknowledged that he was aware of the Code and the respondent argues that it was impossible for the applicant not to be aware of the ERM. The respondent maintains that both documents clearly set out that it was against the respondent’s policies to hold and forward inappropriate material and the respondent maintains that the applicant was aware that his behaviour was contrary to the respondent’s policies given the applicant’s responses at the meetings held on 22 November 2005 and 25 November 2005 when he was questioned about his actions in relation to the receipt, storage and sending of inappropriate material using his computer. 35 The respondent maintains that the applicant’s evidence that he was not aware of the content of the movies on his folder and did not really look at them lacked credibility and the respondent maintains that the applicant was aware that his behaviour was wrong and tried to make excuses for his behaviour. The respondent argues that the issue was not the applicant’s lack of training about using his computer as training would not have stopped the applicant’s actions. The respondent concedes that even though it was not always possible for it to determine the origin of each e-mail it carried out an extensive and time consuming investigation which was appropriate in the circumstances and was able to identify the major players involved in the distribution and retention of inappropriate material. The respondent argues that all major players were identified as part of the applicant’s investigation and the respondent was confident that it had identified the major players who had misconducted themselves. Findings and conclusions Credibility 36 I listened carefully to the evidence given in these proceedings and closely observed each witness. 37 I have concerns about the evidence given by the applicant. I do not consider the applicant to be a reliable witness as I find that the applicant’s evidence about his lack of knowledge of the respondent’s policies and procedures, specifically the ERM and the Code, was unconvincing and his claim in this regard was contrary to the applicant’s written acknowledgement that he was aware of the respondent’s Code (see Exhibit R2). In reaching this view I take into account that the ERM, which formed part of the applicant’s contract of employment, was referred to in a letter to the applicant dated 27 February 2004 confirming his salary and employment status and it was mentioned in the applicant’s contract of employment dated 11 March 2005 (Exhibits R1 and R4) and Mr Mincham gave evidence that employees were made aware of the ERM and copies were made available to employees. The applicant also conceded that he was aware that a copy of the ERM was available on the respondents’ intranet. The weight of evidence is against the applicant on this issue as Mr Lester gave uncontradicted evidence that a number of the applicant’s colleagues who were involved in receiving and sending inappropriate material readily admitted that their behaviour was wrong which would indicate that the respondent’s employees were advised about the provisions of the ERM. It is also my view that the applicant was not being frank and was deliberately evasive when he stated that much of the material stored in his movie folder was innocuous and that he could not recall the details of these movies. 38 In contrast I find that the evidence given by the respondent’s witnesses in these proceedings was given honestly and to the best of their recollection and in my view each witness gave evidence which was both considered and forthright. I therefore have no hesitation accepting their evidence. 39 In the circumstances where there is any inconsistency in the evidence given by the applicant and the respondent’s witnesses I prefer the evidence given by the respondent’s witnesses. 40 The test for determining whether a dismissal is unfair or not is well settled. The question is whether the employer acted harshly, unfairly or oppressively in dismissing the applicant as outlined by the Industrial Appeal Court in Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385. The onus is on the applicant to establish that the dismissal was, in all the circumstances, unfair. Whether the right of the employer to terminate the employment has been exercised so harshly or oppressively or unfairly against the applicant as to amount to an abuse of the right needs to be determined. A dismissal for a valid reason within the meaning of the Act may still be unfair if, for example, it is effected in a manner which is unfair. However, terminating an employment contract in a manner which is procedurally irregular may not of itself mean the dismissal is unfair (see Shire of Esperance v Mouritz (1991) 71 WAIG 891 and Byrne v Australian Airlines (1995) 61 IR 32). In Shire of Esperance v Mouritz (op cit), Kennedy J observed 1514 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. that unfair procedures adopted by an employer when dismissing an employee are only one element that needs to be considered when determining whether a dismissal was harsh or unjust. 41 A repudiation of a contract will exist either when there is a breach of a condition of employment going to the essence of the contract or when one of the parties to the contract has evinced an intention through her or his conduct, either expressly or by implication, to be no longer bound by the contract (see Macken, O’Grady, Sappideen and Warburton, ‘Law of Employment’ 5th Edition at 221) and a refusal to perform contractual obligations if sufficiently serious will amount to a repudiatory breach (Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698). 42 When the applicant was terminated he was told to leave the respondent’s premises on the day of his termination and he was advised that he was to be paid four weeks’ pay in lieu of notice which occurred shortly after he was terminated. The issue of whether a dismissal of this nature constitutes a summary termination or a termination on notice was canvassed by Smith C in Thomas Howell v Barminco Pty Ltd (2002) 82 WAIG 2528 at 2533: “Mr Gifford on behalf of the Respondent contends that the onus of proof that the Applicant was harshly, oppressively or unfairly dismissed lies on the Applicant as the Applicant's employment was terminated by the payment by the Respondent of pay in lieu of notice. In support of its submissions the Respondent relies upon the decision of the Full Bench in Newmont Australia Ltd v Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677. In that case the Full Bench of the Commission observed that where an employee's employment was terminated by summary dismissal there is an obligation upon the employer to show on balance that misconduct had in fact occurred. The Respondent contends that in this case the Applicant was not dismissed for misconduct but for poor performance so the nature of the termination was not summary. In The Federated Miscellaneous Workers' Union of Australia, WA Branch v Cat Welfare Society Incorporated (1991) 71 WAIG 2014 at 2019 Sharkey P and Gregor C observed: "It seems to us that whether a dismissal has occurred in circumstances where pay in lieu of notice is made, that the question is one of mixed fact and law as to whether what occurred was a summary dismissal or not. One consideration is that it depends whether such payment is permissible. That in turn depends on the contract and its construction (see Macken JJ, McCarry G and Sappideen C "The Law of Employment", 3rd Edition, pages 170-172). In some industries, also, it might be said to be a custom. If then, a payment in lieu of notice were not provided for in the contract, then proper notice has to be given or there is a summary dismissal. The same would apply if there were no custom or usage. It follows that a summary dismissal, as a matter of fact and law, cannot be altered in its nature by payment in lieu of notice." Further Smith C observed: “More recently in Sanders v Snell [1998] HCA 64 at [16]; (1998) 196 CLR 329 at 337 Gleeson CJ, Gaudron, Kirby and Hayne JJ held that where there is no condition in a contact of employment for payment in lieu of notice, the employer is in breach of the contract if the employer does not give the employee requisite notice of termination. In that case there was a written contract of employment which specified a period of notice to be given. It is apparent that the Applicant was not immediately paid pay in lieu of notice as he initially made a claim in his application for such a payment. Further, for the reasons set out below I am of the view that the Applicant's termination was sudden and unexpected. It is my view that the Applicant was summarily terminated and the onus of proving the circumstances justifying the termination rests upon the Respondent.” 43 I find that it was lawful for the respondent to make a payment in lieu of notice to the applicant at termination given the terms of Clause 17.5 of the applicant’s contract of employment with the respondent and there was no dispute that this payment was made soon after the applicant was terminated. 44 I find that there were good reasons for requiring the applicant to cease working with the respondent with immediate effect as at 25 November 2005. The applicant did not deny receiving and storing inappropriate material on his computer over a lengthy timeframe and the applicant also forwarded some of this material to colleagues for whom he was responsible. It is my view that it was appropriate for the respondent to require the applicant to cease work with immediate effect as the applicant’s actions concerning his dealings with a substantial amount of inappropriate material constituted serious breaches of the respondent’s policies and it is my view that if the applicant had the opportunity to continue this behaviour during his period of notice he could have further compromised the operation of the respondent’s computer system. 45 When taking into account the relevant authorities and the above findings I therefore find that the applicant was not summarily terminated. 46 The background to this application is set out at paragraph 2. 47 The applicant’s termination was confirmed by letter dated 25 November 2005 which reads as follows (formal parts omitted): “Dismissal from Placer Dome Kalgoorlie Limited On the 8th November it came to out attention that there had possibly been a breach of the Company’s Code of Conduct as it pertains to its electronic information systems, specifically the use of the e-mail system for the creation, storage and distribution of pornographic and offensive material. An investigation was initiated in which the e-mail accounts of a number of employees were scrutinized. The investigation revealed that your e-mail account contained a number of occasions where pornographic and offensive material had been either stored or sent/forwarded on to other people. This information was presented to you on 22nd November in a meeting with Neil Lester, Processing Manager, Dan Schwann, Mill Superintendent and Greg Mincham, HR Manager. At this meeting you were given the opportunity to explain the reasons for the material being in, and sent from, your e-mail account. You were also advised of the 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1515 seriousness of the alleged breach of the Company’s Code of Conduct and that the outcome of the investigation may result in disciplinary action, which may include dismissal. You were then stood down pending further investigation. On the 25th November you were given another opportunity to provide any mitigating information in relation to your actions. The Company’s investigation into this matter has now been completed and I have found that your actions over an extended period of time constituted a serious breach of the Company’s Code of Conduct, of which you were aware. I have also concluded that, as a person holding a leadership position within the organisation, your apparent willingness to participate in this type of behaviour, failure to instruct your team members to cease the activity and failure to report it to your supervisor demonstrates an inability on your behalf to meet an acceptable level of leadership required of a person in such a position responsibility (sic). As a result you are hereby dismissed with payment in lieu of notice from Placer Dome Kalgoorlie Limited effective from 25th November 2005.” (Exhibit A2) 48 The applicant’s last contract of employment with the respondent, dated 11 March 2005, provides the following at Clause 12.1 and Clauses 17.3 to 17.5: “12.1 Unless specifically stated in this agreement all other benefits and conditions of employment shall be those contained in the PDAP Employee Relations Manual and other Kalgoorlie Operations specific policies and guidelines as amended from time-to-time. 17.3 The Company reserves the right to terminate your employment for unsatisfactory work performance, breach of the Company’s policies and procedures, misconduct or serious misconduct or for unacceptable personal behaviour. 17.4 You have a right to procedural fairness in any disciplinary action that may result in termination of your employment however, depending on the seriousness of the reason for dismissal, the Company reserves the right to dismiss you from your employment with or without notice. 17.5 With the exception of you still being within your probation period, either the Company or you may terminate your employment by giving four (4) weeks’ notice, or payment or forfeiture in lieu.” (Exhibit R4) 49 The covering letter of the applicant’s contract, dated 27 February 2004 refers to the ERM being available on the respondent’s intranet site (Exhibit R1). 50 Under Clause 2.11 – Internet and Email Usage in the respondent’s ERM the following provision is included at Clause 2.11.4 – Unauthorised Use: “Unauthorised use includes: … • Offensive, fraudulent or illegal content … It is the recipient’s responsibility to promptly erase any e-mail received that contains any of the above.” and at Clause 2.11.6 – Misuse, the following is included: “In the event of any misuse of a Company computer and/or messaging system, PDAP will take remedial action that will result in disciplinary action and in instances of serious misuse, dismissal. There have been instances where pornographic and offensive material has been brought into the email and computer system, stored and distributed on site and off site. This is a breach of company policy, and Federal and State legislation. Access to illegal sites (eg Child pornography) will result in the relevant authorities being advised. This type of material is not to be stored or distributed using PDAP’s electronic media. There are no exceptions to this and the computer system may be checked. To further explain: If someone sends you an e-mail that contains offensive or pornographic material, delete it and advise the sender that it is against Company policy to transmit it and that you do not wish to receive it. (Attached is a sample response for your assistance). If they persist, it is your responsibility to seek assistance from your supervisor or management to deal with the matter. At no point should you send the e-mail or its attachments to other employees. To do so would mean you were also in breach of the policy. Additionally, the computer system is provided to assist you in your work. It is not for inappropriate private use and consequently, offensive and/or pornographic material is not to be stored on it. PDAP supports and encourages people to use the e-mail system to stay in touch with family etc. However, reasonableness must be applied to the amount of time committed to private use and the same rules apply to the sending/receiving of pornographic or offensive material. What is considered offensive or pornographic material? The best test to apply to any material is whether it would be appropriate to put on public display or to be displayed in a courtroom or to show your family. If the answer to this is no, then it is offensive or pornographic and the policy must be adhered to. Reference should also be made to the Harassment and Anti-Discrimination (HAD) policy above. 1516 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. The computer system and the e-mail system have been put in place as a communication tool. It is effective when used properly but it can be equally damaging if improperly used. There is no future scope for misinterpretation of what PDAP’s requirements are in this matter. Breaches of this policy are likely to result in dismissal. If you are unsure about this policy or how to deal with this issue you are urged you (sic) to seek advice and assistance in this matter. Sample return e-mail: Using the reply button (not the reply with history button), copy the following text into the e-mail. “I have just received and deleted an email that you sent to me. It contains offensive and/or pornographic material which is in breach of this Company’s policy on the transmission or storage of this sort of material. I ask that you immediately cease sending me material of that kind.” (Exhibit R6) 51 The respondent’s Code dated 19 April, 2001 provides the following: “Every employee who has executive or managerial responsibilities is: i) expected to ensure that the Code is communicated to and understood by employees reporting to him or her; and ii) required to sign an annual acknowledgement of adherence to the Code.” (Exhibit R5) The applicant acknowledged that he had received, read and understood the Code dated April 2001 as at December 2004, that he had not breached the Code and that other employees, whether or not they reported to him, had not breached the Code (see Exhibit R2). 52 The following provision is included in the Code under the heading of ‘Information Systems’: “(vi) offensive material (e.g., pornography, hate literature, etc.) is not permitted on Placer Dome systems; and” (Exhibit R5) 53 The following provision is included in the Code under the heading ‘Compliance with the Code’: “All employees are expected to adhere to this Code. Employees who breach the policies outlined in the Code may be subject to disciplinary action up to and including dismissal. If the situation involves a violation of the law, the matter may also be referred to the appropriate law enforcement authority for consideration.” (Exhibit R5) 54 The applicant’s letter of termination confirms that the applicant was terminated after the respondent concluded that the applicant was aware of the Code and had breached it in relation to the use of the respondent’s e-mail system to create, store and distribute pornographic and offensive material. The applicant was also terminated because of his position as a team leader and his failure in this role to instruct his team members to cease the same activities and his failure to report their actions to his supervisor. 55 I find on the evidence that the respondent had sufficient reasons to terminate the applicant. 56 It was not in dispute and I find that the applicant’s contract of employment incorporated the terms of the Code and the ERM and the applicant’s last written contract with the respondent refers to the applicant being bound by the terms of the ERM and other specific policies and guidelines as amended from time to time (see Exhibit R4). I accept Mr Mincham’s evidence that copies of the ERM were given to employees during presentations given by him when the respondent took over Aurion Gold and that copies of the ERM were also available to the respondent’s employees on the respondent’s intranet. The applicant claimed that even though he had acknowledged that he had received, read and understood the Code he was unaware of the content of the Code and did not have the time to read it due to his heavy work schedule. Given my views on witness credit and the fact that the applicant acknowledged that he had received, read and understood the Code dated April 2001 I doubt the applicant’s claim in this regard. I therefore find that the applicant was on notice that any misuse of the respondent’s computer system as outlined in the Code would result in disciplinary action and in instances of serious misuse, possibly dismissal. 57 I find on the evidence that the applicant committed a number of breaches of the respondent’s Code and the ERM relating to e- mail usage in relation to the relevant provisions of the Code and the ERM as set out in paragraphs 50 to 53 of this decision. The applicant did not deny that he received, stored and sent pornographic and offensive material (see transcript pp 16 and 21) and the applicant’s actions in this regard are confirmed by the contents of Exhibits A1(a) and (b) which was a snapshot taken of information on the applicant’s computer as at 10 November 2005 and the contents of a CD which the applicant conceded was a summary of inappropriate material located by the respondent on the applicant’s computer which was compiled by Mr Mincham (Exhibit R7). I find that at meetings the applicant attended with the respondent on 22 November 2005 and 25 November 2005 the applicant conceded he had received sent and stored inappropriate material on his computer and at times had forwarded some of this inappropriate material to employees for whom he was responsible which in my view constituted a serious breach of trust given his supervisory position. I also find that because the applicant received, sent and stored a number of movies on his computer this contributed to some disruption of the respondent’s computer system. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1517 58 The applicant argued that he was singled out by the respondent as his team members were not terminated even though they behaved in a similar manner. It was not disputed that some of the applicant’s colleagues were engaged in similar activities to the applicant and were in breach of their contractual obligations to the respondent and were not terminated, however, this does not alter the fact that the applicant breached the respondent’s policies in relation to the inappropriate use of his computer. In any event it was not in dispute that three of the applicant’s colleagues who were in supervisory positions were terminated for behaving in a similar manner to the applicant. Additionally I find that it was open to the respondent to regard the applicant’s actions more seriously than his subordinates who were involved in the distribution and storage of inappropriate material as the applicant was in a leadership position whereby he was required to lead by example and his actions in continuing to receive and send inappropriate material to his team members was in my view an abrogation of this responsibility. 59 I reject the applicant’s claim that the inappropriate use of his computer was caused by a lack of expertise to operate his computer. It was clear that the applicant was sufficiently computer literate to receive, open and send e-mails and to store movies in a specific folder as confirmed by the information contained in Exhibits A1(a) and (b). In my view the applicant’s argument that he only sent this material to colleagues who did not find it offensive is no defence as it is clear that the applicant was in breach of the respondent’s policies when he sent on pornographic and inappropriate material to colleagues. I also reject the applicants’ view that the respondent should have had processes in place to prevent the receipt and distribution of inappropriate material on the applicant’s computer as it is my view it was the applicant’s responsibility to ensure compliance with the respondent’s ERM and the Code. Whilst the respondent could have put some filters in place to limit the amount of inappropriate material on its computer system I accept that it would be difficult to prohibit all offensive and inappropriate material on a computer system and that this filtering could disrupt day to day activities. 60 I find that the respondent conducted a full and extensive investigation as was reasonably practicable in the circumstances into the applicant’s actions and those of a number of his work mates and I accept that the main persons involved in the storage and distribution of inappropriate material were caught by this investigation. I find that once the respondent became aware that its computer system was compromised by an excessive amount of stored material on its system and that some of this material was inappropriate and offensive Mr Robinson conducted a wide ranging investigation to locate offensive material and to determine which employees were involved in the storage and distribution of this material and the extent of this involvement. 61 I find that the applicant was afforded procedural fairness given the events leading up to his termination and the manner of his termination. It was not in dispute and I find that the applicant was advised on 22 November 2005 that the respondent had reviewed the contents of his computer and had found pornographic and offensive material on it and the respondent gave the applicant specific details about his computer usage which was contrary to the respondent’s policies and procedures for the applicant to review and respond to. On 25 November 2005 the applicant attended another meeting with the respondent and was given a further opportunity to respond to the allegations that he had inappropriately used the respondent’s computing system. Even though the applicant attended this meeting on his own I accept that he declined the opportunity to have a support person in attendance. Clearly the applicant had been on notice about these allegations and he was given a further opportunity to defend himself against the accusations about his behaviour. I also accept Mr Lester’s evidence that the respondent did not decide to terminate the applicant until after the applicant was given a further opportunity to explain his actions at the meeting held on 25 November 2005 which demonstrates that the applicant’s termination was not pre-determined. 62 Given the above findings and when taking into account the relevant authorities it is my view that the breaches of the respondent’s policy committed by the applicant were incompatible with the fulfilment of his duty as an employee and was destructive of the necessary confidence required between an employer and an employee (see Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66). Additionally I find that the applicant breached the requirements of his supervisory position by forwarding inappropriate material to workers for whom he had responsibility. I therefore find that in all the circumstances the applicant’s actions were sufficient to warrant termination notwithstanding the applicant’s unblemished employment history with the respondent. I also find that given the manner in which the respondent handled the applicant’s termination that he was given a ‘fair go all round’. 63 As I have found that there is no merit to the applicant’s claim that he was unfairly dismissed an order will now issue dismissing this application. 2006 WAIRC 04567 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JASON DUNNE APPLICANT -v- PLACER DOME KALGOORLIE LIMITED RESPONDENT CORAM COMMISSIONER J L HARRISON DATE TUESDAY, 20 JUNE 2006 FILE NO/S U 256 OF 2005 CITATION NO. 2006 WAIRC 04567 Result Dismissed 1518 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. Order HAVING HEARD Mr J Dunne on his own behalf and Mr A Cameron as agent on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders – THAT the application be and is hereby dismissed. (Sgd.) J L HARRISON, [L.S.] Commissioner. 2006 WAIRC 04588 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES TROY EDWARDS APPLICANT -v- IAN DIFFEN THE TYRE FACTORY RESPONDENT CORAM COMMISSIONER S M MAYMAN HEARD TUESDAY, 11 APRIL 2006 DELIVERED WEDNESDAY, 21 JUNE 2006 FILE NO. U 145 OF 2005 CITATION NO. 2006 WAIRC 04588 Catchwords Industrial law (WA) – termination of employment – harsh, oppressive or unfair dismissal – summary dismissal - principles applied – application dismissed - Industrial Relations Act 1979 (WA) s 29(1)(b)(i) Result Application dismissed Representation Applicant Mr T. Edwards Respondent Mr R.H. Gifford (as agent) Reasons for Decision 1 This is an application by Troy Edwards (“the applicant”) pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”). The applicant claims he was harshly, oppressively and unfairly dismissed by Ian Diffen The Tyre Factory (”the respondent”). The applicant seeks a sum of $2214.00 as compensation caused by the dismissal by way of an order pursuant to s 23A of the Act. 2 The respondent opposes the claim, submitting the applicant was dismissed summarily for misconduct. Background 3 The applicant commenced employment with the respondent on 2 August 2005 as a wheel aligner. Other duties also involved tyre fitting and exhaust fitting. The applicant’s employment was terminated on 21 October 2005 and the applicant’s weekly termination salary was $618.00 gross and an additional $120.00 cash in hand for working Saturdays. Applicant’s evidence and submissions 4 The applicant gave evidence that on 21 October 2005 he heard an argument in the office between Mr Brian Fletcher and Ms Gina Rice, proprietors of the respondent. In his evidence, the applicant testified that he heard Mr Fletcher say: “Troy was always whingeing … He’s always f------ ringing up Dick and whingeing” (Transcript pages 61 & 62) 5 The applicant testified that he wrote on a piece of paper a person’s name, Rob, who employs wheel aligners, brick layers, etc, and handed the piece of paper to Mr Fletcher. The applicant gave evidence that an argument arose and Mr Fletcher said to him “You’re always f------ whingeing and complaining”. The applicant testified that Mr Fletcher then grabbed him by the throat and told the applicant to pack his stuff and leave. The applicant testified that he rang the police and the police attended a short time later. 6 The applicant testified that swearing was common in the workplace between himself and Mr Fletcher. 7 Under cross-examination the applicant denied when Ms Rice arrived at the respondent’s premises in a ute, he signalled to another employee; Ryan Sheldon. The applicant testified that on previous occasions employees have assisted in the unloading process and it may have been that on that day the applicant was too busy doing wheel alignments. 8 The applicant in cross-examination denied it was the case that he always complained at work. The applicant in cross- examination admitted ringing up a proprietor from a similar business complaining about Mr Fletcher. In cross-examination the applicant testified that on one occasion: “I rang Dick and said, “Is Brian always an arsehole or is he just like that?”” (Transcript page 62) 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1519 9 Mr Ryan Sheldon gave evidence on behalf of the applicant. Mr Sheldon testified that on 21 October 2005, the day the applicant was dismissed, he was at the tyre changing machine fixing a wheelbarrow tube. Mr Sheldon testified that where he was working there was a clear view of the office window. Mr Sheldon testified that whilst he was working he could hear arguing between Mr Fletcher and Ms Rice. Mr Sheldon gave evidence that the argument was about the applicant ringing up a Rockingham store complaining and whingeing. Mr Sheldon testified that he did not see Mr Fletcher assault anybody in the workshop. 10 Under cross-examination, Mr Sheldon testified that the applicant had gone across to the window of the workshop, which was open, and gave Mr Fletcher and Ms Rice a piece of paper. Mr Sheldon testified under cross-examination that he heard some discussions between the applicant and Mr Fletcher: “… he was told to pack his things and get out sort of thing …” (Transcript page 51) 11 Ms Jean Tischler, de facto of the applicant, gave evidence. Ms Tischler testified that whilst the applicant was working for the respondent, the applicant would come home “very grumpy and miserable” to the point he would not want to go back to work. Ms Tischler testified that when the applicant was working for the respondent, the applicant was constantly complaining. Respondent’s evidence and submissions 12 The respondent submitted that the abusive conduct from the applicant in relation to the incident on Friday, 21 October 2005 was sufficiently serious to warrant summary dismissal. The respondent submitted that if it was found by the Commission that the respondent was justified in taking the action it did to dismiss the applicant then it followed that the dismissal of the applicant must also have been, in all the circumstances fair. The respondent sought to have the application dismissed. 13 Mr Fletcher gave evidence. Mr Fletcher testified that early in the morning of 21 October 2005 there was a job that was booked for an exhaust fitment job. Mr Fletcher testified that in the course of that morning’s activities a heated discussion occurred between himself and Ms Rice and in the course of this heated exchange he and Ms Rice were abused by the applicant. 14 Mr Fletcher gave evidence that he was not shocked at the applicant’s behaviour on this occasion because the applicant had abused Mr Fletcher on two prior occasions leading up to that date. Mr Fletcher testified on one previous occasion around mid- September 2005 when the applicant was doing a suspension job he was cursing and swearing at the job and Mr Fletcher counselled him regarding his swearing. On the evidence of Mr Fletcher the applicant abused him on that occasion accusing him of not being aware of how the job ought be done. Mr Fletcher testified that on another occasion in October 2005 the applicant approached him in an aggressive and abusive manner in the showroom. 15 Mr Fletcher gave evidence after the final incident had occurred he responded to the applicant: “My response was that that was enough, I’d had enough. In front of myself and Gina, that was enough. It was just enough, so I told him to grab his tools and f--- off.” (Transcript page 18) 16 Mr Fletcher testified that there was no other contact between himself and the applicant following the termination. 17 Ms Rice, gave evidence that she was present at the time when the applicant was terminated on 21 October 2005. In her evidence the applicant was terminated by Mr Fletcher. Ms Rice gave evidence that when she came in that day she raised the issue of the applicant’s behaviour with Mr Fletcher: “You need to say something to Troy, you can’t let him keep doing this. He is abusive. He was ringing up Dick abusing, swearing about us, of how we run our business. You can’t let somebody that we employ talk about us or like that or even behave with abusive language in our workshop or towards us.” (Transcript page 32) 18 Ms Rice conceded in evidence that she was fuming that day regarding the applicant’s behaviour. Ms Rice testified that what occurred next was the window leading into the office was hurled back by the applicant. Ms Rice testified the applicant then proceeded to abuse Mr Fletcher using a string of four letter words and informing Mr Fletcher to take on the services of an alternative wheel aligner. On the evidence of Ms Rice, Mr Fletcher told the applicant to get his belongings and that he needed to go. 19 On the submission of the respondent there had been a history of the applicant challenging the authority of the supervisor, Mr Fletcher in an abusive manner. It was the submission of the respondent that the problem was escalating. On the final occasion the actions taken by the respondent to terminate the applicant were serious enough for the respondent to treat the behaviour as misconduct and not one in which a formal warning might be forthcoming. 20 The respondent referred to the principles for the purposes of determining misconduct as reflected in the decision of the High Court in Blyth Chemicals v. Bushnell (1933) 49 CLR 66 and in particular the principles expressed by Dixon and McTiernan JJ. In more recent times what is seen as misconduct is reflected in the decision of Kirby J in Concut v. Worrell (2000) 75 ALJR 312 (para 51), in particular: “Only in exceptional circumstances, or it is only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily.” Kirby J expresses further: “Whatever the position may be in relation to isolated actes of negligence, incompetence or unsuitability, it cannot be disputed that acts of dishonesty or similar conduct destructive of the mutual trust between employer and employee once discovered, ordinarily fall within the class of conduct which, without more, authorise summary dismissal.” 1520 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 21 The respondent submitted that the conduct demonstrated by the applicant over a period of time and culminating in the abusive events of 21 October 2005 destroyed the mutual trust between the respondent and the applicant. It was on this basis that the respondent took the view that it was reasonable to act and effect a summary dismissal. Commission’s conclusions and findings 22 The Commission finds there to be a fundamental difference between the applicant and the respondent in these proceedings. It is the view of the applicant that he merely intervened in a heated discussion that was occurring between Mr Fletcher and Ms Rice. That intervention, on the evidence of the applicant, was merely to advise them of another wheel aligner the respondent might wish to employ. Contrary to that evidence is the evidence of Mr Fletcher and Ms Rice that while the heated discussion was occurring they were unexpectedly interrupted as a result of the applicant bursting through the windows adjoining the workshop and the showroom and proceeding to swear at each of the proprietors. This intervention on the evidence of the respondent concluded in the applicant throwing a note with relevant information as to where the respondent could locate an alternative wheel aligner. It is significant as the Commission finds that the evidence of Ms Rice and Mr Fletcher was consistent and contrary to the evidence presented by the applicant. Overall, the Commission accepts the evidence of Mr Fletcher and Ms Rice and finds their evidence to be preferred to that of the applicant. In particular, Mr Fletcher was not shaken under cross-examination. 23 In this matter, the termination was a summary dismissal for misconduct and therefore the respondent carries an evidentiary onus to establish the facts on which the decision to dismiss was based as per the principles outlined in Newmont Australia Ltd v. Australian Workers Union, WA Branch (1988) 68 WAIG 677. Where an employee is to be dismissed for misconduct, in particular a single act of misconduct, that behaviour must be of a nature which demonstrates the employee is repudiating the contract of employment or one of its essential conditions and for that reason the disobedience complained of should really connote a deliberate flouting of the contractual conditions Laws v. London Chronicle (Indicators Newspapers) Ltd [1959] 2 ALL ER 285. It must be borne in mind that summary dismissal for misconduct is the most extreme penalty available to an employer. It is not always the case that a single incident of a behaviour complained of would amount to gross misconduct justifying summary dismissal. In considering matters such as examining the facts surrounding a summary dismissal it must be remembered that a rigid approach is not consistent with the requirements of s 26 of the Act. Consideration by the Commission must be determined in accordance with equity, good conscience and the substantial merits of the case. The Commission finds in all the circumstances that the ongoing behaviour of the applicant breached the mutual trust between the respondent and the applicant and accordingly the Commission finds the respondent was justified in summarily terminating the applicant for misconduct. 24 The Commission therefore finds that the applicant has failed to make out his claim in respect of the alleged unfair dismissal. Having determined that the actions by the respondent to terminate the applicant were justified and an order will now issue dismissing this application. 2006 WAIRC 04643 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES TROY EDWARDS APPLICANT -v- IAN DIFFEN THE TYRE FACTORY RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE WEDNESDAY, 28 JUNE 2006 FILE NO U 145 OF 2005 CITATION NO. 2006 WAIRC 04643 Result Application dismissed Representation Applicant Mr T. Edwards Respondent Mr R.H. Gifford (as agent) Order HAVING HEARD Mr T. Edwards on his own behalf as the applicant and Mr R.H. Gifford (as agent) on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders – THAT the s.29(1)(b)(i) application be, and is hereby dismissed. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1521 2006 WAIRC 04575 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JACQUELINE HEALY APPLICANT -v- AMADEUS AUSTRALIA RESPONDENT CORAM COMMISSIONER S WOOD HEARD WEDNESDAY, 31 MAY 2006 DELIVERED TUESDAY, 20 JUNE 2006 FILE NO. U 14 OF 2006 CITATION NO. 2006 WAIRC 04575 CatchWords Termination of employment – Preliminary issue – Whether deed of release bars application – Claim barred by deed of release – Application dismissed Result Application dismissed Representation Applicant Ms J Healy Respondent Mr R Pegg of Counsel Reasons for Decision 1 This is an application pursuant to s.29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”), filed in the Commission on 5 January 2006 by Jacqueline Healy alleging that she was unfairly dismissed by the respondent on 12 December 2005. 2 On 30 January 2006 the respondent filed in the Commission its Notice of Answer and Counterproposal opposing the claim and raised the issue of a deed of release. The matter was programmed for conciliation conference on 20 February 2006. Conciliation in the matter was unavailing. The respondent requested that the matter be referred for a preliminary hearing as they submitted that the deed was a bar to further proceedings. The matter was heard on 31 May 2006 at the conclusion of which I gave brief Reasons for Decision and dismissed the matter. These are now my full reasons. 3 Mr Gregory, the respondent’s then Human Resources Manager, gave evidence that he met the applicant in Perth on 12 December 2005. Ms Castle (another manager) was also present. He advised Ms Healy that her employment was terminated for performance reasons. He says that Ms Healy sought to discuss the terms of her departure with “specific reference to the financial settlement”. He says that he advised her that the respondent required a deed of release and advised Ms Healy, on at least two occasions, that she could take the draft deed home to review and seek advice. Mr Gregory says that Ms Healy said, “I am happy to sign the deed if the funds go into my account tonight”. 4 Mr Gregory says that they reached agreement, he drafted the deed, they then reviewed the deed together. Ms Healy pointed out one error in the draft but made no other changes. Ms Healy asked whether she would receive payment that day if she signed the deal and Mr Gregory advised that the payment would be made the next day. Ms Healy then signed the deed in the presence of Mr Gregory. Mr Gregory says that Ms Healy was calm and composed. He says that the settlement monies were paid into Ms Healy’s account the next day. 5 Under cross-examination Mr Gregory says in effect that the payment was contingent upon the deed being signed. 6 The deed at clause 4 reads: “The Employee hereby unconditionally releases the Company its servants or agents or subsidiaries or related companies from all actions, claims, demands, suits, proceedings, liabilities, sums of money (including the payment of salary in lieu of notice), damages and costs no matter how the same arose and on every account (with the exception of any claim for workers’ compensation) which now exist or which would but for this deed exist at the date of this deed including without limiting the generality of the foregoing any which arises out of the contract of employment or any arrangement between the Employee and the Company or out of any conditions or collateral arrangements relating to that contract of employment or arrangement or which arise out of any act or omission of either the Employee or the Company during the course of that contract of employment or arrangement or which arise out of the termination of the Employee’s employment.” 7 Ms Healy’s evidence is that she received an email on the Friday before 12 December 2005 asking that she meet with Mr Gregory and Ms Castle. At the meeting she was informed that her employment was terminated. She indicated that she had not received three warnings and asked if she was to have some mediation. She raised issues of bullying and unfair treatment. The bullying, at least in part, related to earlier incidents involving Ms Castle. She says that she was quite distressed. She says that she was under duress but was not bullied at the meeting. She felt under duress because there were two people from the respondent at the meeting and she was told she was dismissed. She had expected to review the last 3 to 5 months. Ms Healy agrees that she was told she could take the deed away and consider it. She says she was told this once. She says that Mr Gregory would not guarantee when she would be paid her final monies if she did not sign the deed. Ms Healy agrees that she signed the deed and that she knew what she was signing. She says that it was not until later, when she read the deed properly, that she realised that maybe she should not have signed it there and then. 1522 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. 8 Mr Pegg for the respondent submitted that the Commission was without jurisdiction as a result of the deed. Alternatively, he submitted that the application should be dismissed in the public interest due to the deed. He submitted that courtesy of the deed the applicant was paid more generous benefits than an employee for her length of service. She had access also to outplacement services. There is no evidence to sustain a claim that the deed was entered into under duress. 9 It is clear that a deed of release may serve as a bar to further proceedings in this jurisdiction (see for example Alan Barker v Steelweld Personnel Pty Ltd 86 WAIG 81 and Steven C Catarino v Woolworths Limited 86 WAIG 524). 10 I prefer the evidence of Mr Gregory to that of Ms Healy. The deed is clear in its terms. The deed provides, amongst other things, a bar to further proceedings. This includes proceedings of this kind. On the face of the deed then, should a person sign with a clear mind, knowing what they are signing, they could not rightfully make such an application. Ms Healy acknowledges that she read and signed the deed. She acknowledges that she could have taken the deed away and considered it further. She was clearly concerned about when her monies would be paid. On the evidence of Mr Gregory they were paid the day after the deed was executed as indicated previously to Ms Healy. The deed was executed properly. 11 Ms Healy says that she was under duress. I do not agree. If she was under such duress she could have chosen not to sign the deed there and then. That option was clearly open to her. More importantly, there is no evidence of duress (see the discussion of duress in Macken, O’Grady, Sappideen and Warburton’s Law of Employment 5th Edition @ p.78). In respect of whether the deed should be set aside for any reasons of duress or lack of clarity, I do not find, on the evidence, that there is sufficient or any reason why the deed should, in fact, be set aside. I accept that Ms Healy might have been stressed. She was to be dismissed. However, she had previously been on notice, via an email in November 2005, that her dismissal was a possibility if her performance did not improve. 12 Having regard to these reasons and my obligations under section 26 of the Act I would dismiss the application. The deed serves as a bar to further proceedings, there is no reason to negate the effect of the deed and it is not then in the public interest to allow the application to proceed further. 2006 WAIRC 04576 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JACQUELINE HEALY APPLICANT -v- AMADEUS AUSTRALIA RESPONDENT CORAM COMMISSIONER S WOOD DATE TUESDAY, 20 JUNE 2006 FILE NO U 14 OF 2006 CITATION NO. 2006 WAIRC 04576 Result Application dismissed Representation Applicant Ms J Healy Respondent Mr R Pegg of Counsel Order HAVING heard Ms J Healy on her own behalf and Mr R Pegg of Counsel on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders: THAT the application be and is hereby dismissed. (Sgd.) S WOOD, [L.S.] Commissioner. 2006 WAIRC 04705 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MARY COLLEEN LANG APPLICANT -v- SILVERBIRD NOMINEES PTY LTD T/A C RESTAURANT RESPONDENT CORAM COMMISSIONER J H SMITH HEARD THURSDAY, 20 APRIL 2006, FRIDAY, 21 APRIL 2006 DELIVERED WEDNESDAY, 5 JULY 2006 FILE NO. U 217 OF 2005 CITATION NO. 2006 WAIRC 04705 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1523 CatchWords Termination of employment - Harsh, oppressive and unfair dismissal - Applicant summarily dismissed - Alleged poor performance and serious and wilful misconduct - Turns on own facts - Contractual benefits claimed - Application for unfair dismissal dismissed - Contractual benefits claim upheld in part - Industrial Relations Act 1979 (WA) s 29(1)(b)(i) & (ii) Result Application for unfair dismissal dismissed and order made that the Respondent pay the Applicant $457.39 (gross) for annual leave. Representation Applicant In person Respondent Mr P Clements Reasons for Decision 1 This is an application by Mary Colleen Lang (“the Applicant”) under s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) for orders pursuant to s 23A of the Act. The Applicant claims that she was unfairly dismissed by Silverbird Nominees Pty Ltd trading as C Restaurant (“the Respondent”) on 2 November 2005. 2 The Applicant also makes a claim under s 29(1)(b)(ii) of the Act, that she has not been allowed by the Respondent benefits to which she is entitled under a contract of employment not being benefits under an award or order. The Applicant claims that she is owed: — (a) payment in lieu for 50 hours of accrued annual leave; (b) $10,000 plus superannuation of 9% on that amount for work performed carrying out duties associated with stocktake purchasing and control of beverages; and (c) a refund of $600 or $700 wrongly deducted as income tax from her pay for the week ending 6 November 2005. Background 3 The Respondent’s business is a large restaurant in the centre of the central business district of Perth. The Applicant at all material times was employed by the Respondent as its Office Administrator and had control of the Respondent’s accounts and was responsible for the Respondent’s banking internet transfers and all monies. Among other duties the Applicant was also responsible for the calculation and preparation of the payroll each week and was required to enter data relating to sales, purchases and receipts on the Respondent’s MYOB computer system. The Applicant was required to calculate and ensure compliance with the Respondent’s obligations in respect of superannuation payments to superannuation funds and to deal with enquires from and provide information to the Australian Taxation Office (“ATO”). The Applicant was also required to prepare monthly management reports to the Respondent’s administrators as at all material times the Respondent was under a deed of company arrangement. 4 The Applicant in her application states the reason why she was dismissed was because she was in dispute with the Respondent about the non-payment of meal penalties to employees of the restaurant who worked longer than six hours without a break. The Applicant says that at all material times the Respondent was required to pay these employees penalties pursuant to clause 13 of the Restaurant, Tearoom and Catering Workers’ Award 1979 No. R 48 of 1978 (“the Award”). Clause 13 of the Award provides: “(1) (a) Every employee shall be entitled to a meal break of not less than one half hour nor more than one hour after not more than six hours of work. (b) Where it is not possible for the employer to grant a meal break on any day, the said meal break shall be treated as time worked and the employee shall be paid at the rate applicable to the employee at the time such meal break is due, plus fifty per cent of the prescribed ordinary hourly rate applying to such employee, until such time as the employee is released for a meal. (2) In addition to a break for a meal, there may be one other break of at least one hour during each shift. Such break may be taken in conjunction with the meal break. (3) Where an employee is required to work 6 or more consecutive hours in a shift the employee shall also be entitled to one (1) only paid break of 10 minutes at a time agreed between the employer and the employee provided that the employer shall not require that the break be taken in the first or last hour of any work period and the employee shall not work more than 6 hours before either the paid or unpaid break is taken. (4) Nothing in sub-clause (3) shall affect an employee’s entitlement to a paid break where such was afforded to an employee under circumstances more favourable prior to the inclusion of that sub-clause on 21 February 2001.” 5 Sometime before 31 October 2005, $600 was stolen from one of the Respondent’s cash bags. The Applicant says she was one of several employees who was suspected of stealing this amount and that Mr Phillip Clements, a director of the Respondent had referred to her and other staff as “thieves”. 6 The Applicant says that on 31 October 2005, she informed the Respondent’s General Manager, Mrs Kym Clements, that from immediate effect all staff would be paid in terms of the Award and that she (the Applicant) would be reconciling back payments. On 1 November 2005, the Applicant made some penalty payments. The Applicant contends that Mrs Clements authorised those payments. 7 On 2 November 2005, Mr Clements asked the Applicant to resign. She refused and was told by Mr Clements she was dismissed. In her application the Applicant alleges, among other allegations, that she was assaulted by Mr Clements after he 1524 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 86 W.A.I.G. informed her she was dismissed. In particular, she says in her application that she sustained a wound to her left hand that later required her to seek medical attention. She also alleges in her application that whilst she was employed by the Respondent she experienced both physical and verbal abuse by Mr Clements the result of which she feared for her safety within the workplace when he was on site. 8 After the Applicant’s claim was filed the Respondent requested that the Applicant provide particulars of the following: “1. As to your alleged injury set out in section 20 of your application state: a. What medical aid was required for your alleged injuries. b. The name, address and telephone number of the doctor or other person who provided the medical aid. c. Provide a copy of any medical report produced by the person referred to in (b) herein. 2. In relation to the physical abuse alleged, state what actions of Mr Clements it is alleged by you constituted such abuse and the date, time and place of such actions. 3. In relation to the verbal abuse, state the words alleged by you to be used by Mr Clements and state the date, time and place such words where used. 4. In relation to the allegation that you required an increase dosage of antidepressants, state the name, address and telephone number of the doctor you allege was consulted by you and provide a copy of any reports provided by that doctor in relation to that consultation. 5. In relation to the allegation that Mr Clements referred to you as a thief, state: a. The precise words alleged to have been used by Mr Clements. b. The time and place where the words are alleged to have been used by Mr Clements.” 9 In response the Applicant stated: “1. With reference to the injury sustained by me as detailed in section 20 of my application. a. The wound sustained by me was cleaned and disinfected. b. ‘Clinton’ from the Tank Coffee Shop provided medical aid attention. c. A medical report was not obtained from him at the time of his assistance. Points 2; 3; & 5 Since I consider all these points to be interrelated I will deal with them as a whole. The memorandum from Mr Clements dated the 19 October 2005, addressed to Mary Lang; Kiatjin Lye; Debbie Chi’ng, Sally Harris and Steve Wood refers. Subject matter of this memorandum was referred to as ‘Theft of $600 from the cash-up, between 10pm Sunday 16th October and 2.15pm Monday 17th October.’ I quote from this memorandum paragraph 1 and paragraph 2 as follows: ‘As you all now know, $600 was stolen from the cash-up bag between Sunday night and Monday afternoon. I have investigated this matter and viewed the CCV security tape in the restaurant and St Martins security video and concluded that the culprit can only be one of the five people mentioned above.’ Between 5.11pm and 5.30 pm on 28 October 2005, when I said to Mr Clements that I was pleased that the police had been called in after me requesting on three occasions for the theft to be investigated, he said words to the effect of ‘That is another thing, why have you responded like this to my letter, whereas the other people have not’. He then said to me ‘What is it that you are hiding, is there something you want to tell me’? The inference in itself I consider tantamount to an accusation. This discussion took place within the administration office of Silverbird Nominees Pty Ltd, situated on the 24th Floor, St Martins Tower, 144 St Georges Terrace, Perth, Western Australia. I refer you to my letter dated the 31 October 2005 and receipt of which was signed for by Mrs Clements. Point 4 provides the following details of the abusive behaviour perpetrated against me. I quote: ‘I again reinforce my standing that I find Phill’s manner to be abusive on many levels. The situation where he physically hit the wall and pigeon holes in the office between 4.30pm and 5.00 pm on the Wednesday afternoon after you arrived back from Italy was both physically abusive, threatening and intimidating, not only to myself but to other staff who were in the vicinity at the time. I refuse to be treated in such an abusive manner.’ On Friday 28 October 5.11 pm and 5.30 pm when I voiced my objection to such abuse being directed against me, Mr Clements words to me were ‘I will do what I want’. At that point I made it clear should Mr Clements behave in a similarly abusive manner towards me in the future I would exercise my right to have the matter dealt with by the Judiciary. On asking Mr Clements as to what sort of man needs to rule by fear, the elicited response was ‘… the sort of man who has a bunch of thieves working for him’. This portion of the discussion took place in the main office situated at the same address detailed above, and next to the administration office of Silverbird Nominees Pty Ltd. 86 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1525 4. Dr Leeb of the Illawarra Medical Centre was consulted regarding the stress sustained by me whilst in your employ. The address of the centre is PO Box 1234, Morley WA 6943, and the telephone number 9249 2003. A copy of Dr Leeb’s medical report dated the 2 February 2006 is enclosed.” 10 The Applicant seeks an order that the Respondent pay her six months’ remuneration as compensation for loss of earnings, stress and suffering caused by her dismissal. 11 The Respondent denies the Applicant was harshly, oppressively or unfairly dismissed. The Respondent in its amended notice of answer and counter-proposal states that the grounds for the Applicant’s dismissal on 2 November 2005 with immediate effect were: a. Dishonest behaviour, whereby she could no longer be trusted with control of the respondents financial assets. b. Despite numerous written and oral warnings, the claimant failed and refused to carry out her duties in an efficient and timely manner. c. Consistent defiance of the General Manager’s instructions and / or requests. d. The claimant engendered a disruptive and antagonistic work place environment which, had the claimant not been dismissed, would have resulted in a valued member of the respondent’s staff resigning. e. The claimant’s actions set out above were adversely affecting the health of the General Manager. f. Theft of company financial records; the property of the Re