PR951428 PR951428 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Glenn Hamann and Dunkeld Pastoral Co Pty Ltd (U2003/6778) COMMISSIONER GRAINGER MELBOURNE, 27 AUGUST 2004 Termination of employment. DECISION [1] This matter relates to an application by Mr Glenn Hamann (Mr Hamann, the applicant) pursuant to section 170CE of the Workplace Relations Act 1996 for relief in respect of the alleged unlawful termination of his employment by Dunkeld Pastoral Co Pty Ltd (the respondent, Dunkeld). In accordance with the Act the matter was referred to Mr R. Hastings for conciliation. This conciliation took place in Warrnambool on Friday, 28 November 2003. This matter proceeded to a second conciliation before Commissioner Simmonds on Tuesday 20 April 2004 in Warrnambool. On 21 April 2004 Commission Simmonds issued a certificate pursuant to section 170CF(2) of the Act in respect of this matter. The applicant lodged an election to proceed to arbitration pursuant to section 170CFA(1), (2) and (3) of the Act on 27 April 2004 and the matter was heard in Portland on Monday, 23 August 2004. I am satisfied that the requirements of section 170CG(1) have been met and I proceed to arbitrate this matter. [2] Mr Hamann represented himself at the arbitration and Dunkeld was represented by Mr Michael Myers (Mr Myers), one of its own employees. The Evidence [3] Mr Hamann commenced employment as a Yardsman with Dunkeld on or about 10 December 2000 at The Victoria Hotel on Port Fairy. From the time Mr Hamann commenced employment he reported to Mr Michael Myers (Mr Myers), the Manager of The Victoria Hotel at Port Fairy. He was employed as a permanent casual and worked four hours a day six days a week at the rate of $12.00 an hour, consistently earning $288 per week before tax. [4] In late April 2003 Mr Hamann was diagnosed with a serious medical condition which required that he undergo immediate surgery in Warrnambool Hospital. He informed Mr Myers of this and Mr Myers told him that he would keep Mr Hamann's job open for him until Mr Hamann recovered from his operation. Mr Hamann was operated on on or about 29 April 2003. [5] Mr Myers visited Mr Hamann in hospital and, in response to a request from Mr Hamann who required evidence of ongoing employment for the purposes of certain benefits he was claiming, Mr Myers provided Mr Hamann with a letter which stated [exhibit A2]: TO WHOM IT MAY CONCERN Please be advised that Glen Hamann will resume his duties as Yardsman at The Victoria Hotel when he recovers from his sickness. [6] While Mr Hamann was recovering from his operation the respondent had other people filling in on the Yardsman's duties but expected Mr Hamann to return to work and intended that he should have his job back. [7] In late September 2003 Mr Hamann contacted Mrs Sandra Carter (Mrs Carter), supervisor of the cleaning staff at The Victoria Hotel, to tell her that he would be ready to return to work at the Victoria Hotel "in about a fortnight". [8] Mr Myers was replaced as Manager of The Victoria Hotel on 2 October 2003 by Mr Luke Reid (Mr Reid), and continued at The Victoria Hotel for a further period of two weeks to hand over his duties to Mr Reid. [9] On or about 4 October 2003 Mr Hamann came to see Mr Myers at The Victoria Hotel and told him that he was ready to return to work as the Yardsman at The Victoria Hotel. Mr Myers told Mr Hamann that, as Mr Myers had now ceased to be the Manager, Mr Hamann would need to see Mr Reid to discuss the matter. It is in dispute between the evidence of Mr Myers and Mr Hamann whether or not Mr Myers told Mr Hamann that he would get back in touch with Mr Hamann about an appointment to see Mr Reid in the next two weeks. [10] Mr Hamann did not ever ask to see Mr Reid or endeavour to contact Mr Reid himself but, on the evidence before the Commission, clearly was of the belief that it was up to Mr Myers to get Mr Reid to contact him about the resumption of his duties as Yardsman. [11] When he did not hear from Mr Reid in the following twelve days, Mr Hamann went to see a solicitor, Ms Lenehan of Stringer Clark, and, on 16 October 2003, Mr Hamann's application on the requisite Form R18 was lodged in the Commission. [12] Mr Reid, who knew nothing of Mr Hamann's past employment history, referred Mr Hamann's application to Mr Myers who had now returned to work in Dunkeld's Ballarat office. Mr Myers completed the respondent's Notice of Employer's appearance on the requisite Form R21 and lodged it in the Commission on 29 October 2003 stating that "Glen was not terminated". [13] On 31 October 2003 Mr Hamann's doctor, Dr Andrew Cook, furnished Mr Hamann with a medical certificate which stated [exhibit R2]: Glen had a perforated ulcer and operation in April 03. He has fully recovered from this and is fit for work, and would have been fit prior to 26.10.03 when he started his new job. [14] Mr Reid attended the first conciliation conference on 28 November 2003 and heard the history of Mr Hamann's employment relationship with Dunkeld and, it appears, was given a copy of the medical certificate from Dr Cook. [15] Mr Reid then offered Mr Hamann his old position at Yardsman at the rate of $16.11 an hour. [16] On 15 December 2003 Ms Lenehan wrote to Mr Reid as follows [exhibit R3]: We refer to previous correspondence in this matter. Our client will accept your offer of employment for not less than five hours per week on the proviso that he is paid the correct wage of $16.11 per hour in accordance with the Accommodation, Cafes and Restaurants Industry Award. We await your reply. [17] Mr Hamann was not aware that this letter had been sent on his behalf and he declined to resume his duties as Yardsman, because he was about to start a new job with Port Fairy Lawn Mowing at the rate of $16.00 an hour for twenty hours a week. This position commenced in early January 2004 and Mr Hamann continues to be employed in that position. [18] Mr Reid again offered Mr Hamann the position of Yardsman at The Victoria Hotel in Port Fairy in mid May 2004 following the second conciliation conference and Mr Hamann again told him "no, because I already had another job". The respondent has again reiterated the offer of Mr Hamann's position to him as recently as the last two weeks. [19] Mr Hamann claims, despite the reference of Dr Cook to him having started a new job on 26 October 2003, not to have had other employment from early October to late December 2003. During that period he received unemployment benefits of $375 a fortnight. He agreed that his net loss from not having resumed his old position as Yardsman at The Victoria Hotel as being approximately $1,200. [20] Mr Hamann does not seek reinstatement and has declined repeated offers from Dunkeld to have his position as Yardsman back. [21] Mr Hamann has never been told that his employment with Dunkeld had been terminated. Mr Myers gave evidence that the position of Yardsman had been held open for Mr Hamann and had been filled on a temporary basis only pending the resolution of Mr Hamann's health problems following his operation in April 2003. Findings of Fact in relation to the evidence [22] Dunkeld did not terminate Mr Hamann's employment and has, ever since Mr Hamann met with Mr Reid on 28 November 2003, consistently offered to have Mr Hamann resume his duties as Yardsman at The Victoria Hotel at a higher rate of pay than he had been receiving before his operation. [23] Mr Hamann at no time after meeting with Mr Myers on 4 October 2004 contacted Mr Reid to discuss the resumption of his duties and has declined Dunkeld's offer of resumed employment at The Victoria Hotel from December 2003 and has been in alternate employment since early January 2004 if not from 26 October 2003 as referred to in the medical certificate of Dr Cook. The Applicant's submissions [24] The applicant made the following written submissions in this matter [exhibit A1]: Around the end of September 2003, I went to Victoria Hotel in Port Fairy and informed my employer, Mr Michael Myers (Mick) that I had fully recovered from my operation and was fit enough to resume my normal working duties. Mr Myers then informed me that I would have to see the New Manager, so I then requested to speak to him if he was available. Mr Myers then asked if I could give him (the new manager) some time to settle in and he would get back to me. Approximately eighteen day's later after not hearing anything from Mr Myers or the new manager of the Victoria Hotel and because of the dismissive manner in which I was treated, I approached Ms Cherieanne Leneham from Stringer Clarke Solicitors to find out what my Legal Rights were. We then filed the current Application. [25] The applicant made the following submissions at the hearing: (a) the termination of his employment was harsh, unjust and unreasonable within the meaning of s.170CE (1)(a) of the Act; (b) there was no valid reason for the termination of his employment within the meaning of s.170CG(3)(a) of the Act; (c) he was never notified of any reason for the termination of his employment within the meaning of s.170CG(3)(b) of the Act; (d) he was given no opportunity to respond within the meaning of s.170CG(3)(c) of the Act; (e) he had been given no warning within the meaning of s.170CG(3)(d) of the Act; (f) Dunkeld is a large employer in terms of s.170CG(3)(da) and (db) of the Act; (g) as to any other matters, within the meaning of s.170CG(3)(e) of the Act, Mr Hamann said that he was out of work for three months from early October to late December 2003; (h) Mr Hamann does not seek reinstatement but compensation only in lieu of reinstatement. The Respondent's Submissions [26] The respondent made the following written submissions in this matter [exhibit R1]: Glenn's Issues in dispute, evidentiary disputes and agrees facts; (as stated on his R25 form). Employer provided employee with written notice that he would be re-appointed to his position once he recovered from his illness. When employee recovered employer refused to re-appoint employee to his previous position. Written Submissions by Lucas Reid on behalf of Dunkeld Pastoral Company Tuesday 17th August, 2004 Glenn Hamann has been employed as a yardie on a casual basis since 10 December 2000. Glenn fell ill and underwent surgery on a stomach ulcer and was unable to work after the pay period ending 7 May, 2003. The manager at the time, Michael Myers, gave Glenn written documentation informing him that we would hold his position open until he was well enough to resume work. Glenn approached Michael Myers in early October to advise him that he had been cleared by his doctor to resume work. Michael Myers informed Glenn that he was no longer managing the hotel and it would be necessary to speak with Lucas Reid about returning to work. At the time Glen did not provide Michael Myers with any documentation stating he was fit to return to work (at the first conciliation Glen presented a document that stated he would have been fit prior to October 26th - However, this letter was written on 31/10/03). Thus suggesting that Glenn's initial contact was made prior to getting clearance from his doctor. At no time did Glenn approach me "Lucas Reid - Hotel Manager" concerning returning to work. According to records at Dunkeld Pastoral Company Glenn Harman has not been terminated from his employment. An offer to return to work was extended by Dunkeld Pastoral Company after the first conciliation. A letter dated 15 December, 2003 from Cherianne Lenehan accepted the employment on behalf of Mr Hamman. A second conciliation was scheduled for April 20th. However, due to a miscommunication the parties never met to discuss the matter. In July of this year I contacted Stringer Clark to enquire if Mr Hamman was planning on returning to work. I received written documentation on July 5th from Stringer Clark noting that they no longer represented Mr Hamann. I have spoken with Glenn by phone on several occasions stating that the offer to return to work is still available. Glenn has informed me that he has a good job that he has held since October 26th, 2003 (as stated by Port Fairy Medical Clinic). [27] The respondent made the following further submissions in this matter at the hearing: (a) Dunkeld did not terminate the employment of Mr Hamann and therefore the Commission has no jurisdiction to deal with this matter within the meaning of s.170CE (1)(a) of the Act; (b) there was no valid reason for the termination of Mr Harmann's employment within the meaning of s.170CG(3)(a) of the Act; (c) Mr Hamann was given no notification of any reason for the termination of his employment within the meaning of s.170CG(3)(b) of the Act; (d) Mr Hamann was given no opportunity to respond within the meaning of s.170CG(3)(e) of the Act; (e) there was no unsatisfactory performance by Mr Hamann and he had been given no warning within the meaning of s.170CG(3)(d) of the Act; (f) Dunkeld has about 70 employees and has no dedicated human resourced management expertise, in relation to s.170CG(3)(da) and (db) of the Act. The first issue - was there a termination of employment at the initiative of the employer [28] Given these findings the issue I must consider firstly is whether in this case: "the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship." : Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. [29] Following from the decision of the Full Bench of the Industrial Court in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 I take it that the threshold issue in this case is whether there had in fact been a termination of the employment of the applicant by the respondent. The statutory right to seek a remedy depends upon there having been such a termination. This follows from the provisions of s.170CE (1) which states: "subject to subsection (5), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment" . Section 170CA(1) provides that "The principal object of this Division (Division 3) is [inter alia]: (a) to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee's employment in certain circumstances; and (b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and (e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention." Section 170CD(1) provides that in Division 3 of Part VIA of the Act "'termination or termination of employment' means termination of employment at the initiative of the employer". Section 4(1) provides that the Termination of Employment Convention means that Convention which is set out at Schedule 10 of the Act. Schedule 10 sets out the "Convention Concerning Termination of Employment at the Initiative of the Employer" adopted by the International Labour Office on 2 June 1982. Article 3 of the Convention provides that "for the purposes of this Convention the terms `termination' and `termination of employment' means termination of employment at the initiative of the employer" . Article 4 of the Convention provides that: "the employment of a worker shall not be terminated unless there is a valid reason for such terminations connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment of service." [30] In the present case I must therefore determine, before moving on to consider any other issue, whether there has been a termination of the applicant's employment at the initiative of the respondent employer. If there has not been, then the applicant has no case and I must dismiss his application. [31] In considering the meaning of "termination at the initiative of the employer", the Full Bench in Mohazab (No 2) at 204-205 held that: "it is necessary to consider the ordinary meaning of the expression `termination at the initiative of the employer' in context in the Convention having regard to its object and purpose. The word `initiative' is relevantly defined in the New Shorter Oxford Dictionary in the following way: `initiative - 1. The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act'. and in the Concise Macquarie Dictionary in the following way: `initiative - 1. an introductory act or step; leading action; to take the initiative. 2. Readiness and ability in initiating action; enterprise; to lack initiative". These definitions reflect the ordinary meaning of the word `initiative'. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination....Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship." The Full Bench went on to say at 205 that: "it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship". I note that in Mohazab (No 2) the Full Bench found at 206 that "the respondent wanted the appellant's resignation because it desired to terminate the appellant's employment." [32] The approach adopted by the Full Court in Mohazab (No 2) was referred to with apparent approval by McHugh J in Qantas Airways Limited v Christie (1998) 193 CLR 280 at 301. The Full Court of the Federal Court considered the matter again in Pawel v Australian Industrial Relations Commission [1999] FCA 1660. Branson and Marshall JJ at paragraph 25 of their majority decision said: "it seems reasonable to conclude that the expression `termination at the initiative of the employer' and closely related expressions, are used throughout Division 3 of Part VIA of the Act with the same meaning [as in the Termination of Employment Convention]. On this basis, the construction of the expression adopted in Mozahab would extend to s.170CE (1)(a)." Their Honours proceeded to adopt and apply the Full Court decision in Mohazab to the provisions of s.170CE (1) of the Workplace Relations Act 1996. [33] Applying the law as set out in the Act in the light of the principles enunciated in those cases I find that the employment of the applicant was not terminated at the initiative of the respondent employer for the following reasons: (a) termination of employment at the initiative of the employer requires that the employer must have taken the first step in setting in process a chain of events which is intended to and does lead to the termination of the employee's employment with the employer. Cases of this kind must be considered very carefully on their own specific facts but it is a frequently occurring element in such cases that there is evidence of the employer desiring that the employee cease to be in the employer's employment, as was the case in Mohazeb . The question to be asked, as stated by the Full Court in Mohazeb , is whether the employer had not taken the action it did, would the employee have remained in the employment relationship? In the present case the evidence shows that Mr Hamann was a permanent casual Yardsman with Dunkeld who, at his own request, ceased his duties for health reasons in late April 2003. There is no evidence that Dunkeld desired the employment relationship to cease or that it took any action to cause it to cease. Rather, the evidence shows that when Mr Hamann made contact with Dunkeld through Mr Myers in early October he was told that he should contact Mr Reid, the new Manager, to discuss the resumption of his duties. Mr Hamann never contacted Mr Reid and, two weeks later, lodged his application in this Commission; (b) the evidence is that from the time Mr Reid met with Mr Hamann on 28 November 2003 and heard Mr Hamann's story he has repeatedly offered Mr Hamann the opportunity to resume his duties as Yardsman at significantly better hourly rates than he was receiving up to the end of April 2003 when he had to go into hospital for his operation; (c) Mr Hamann has consistently refused to resume his employment with the respondent, despite his solicitor's letter of 15 December 2003 to Dunkeld, because he had found other employment he preferred to take up and remain in. DECISION [34] I find that there has been no termination of Mr Hamann's employment by the respondent employer in this matter and therefore the Commission has no jurisdiction to deal further with the matter. ORDER [35] I order that the application of the applicant in this matter be dismissed. 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