INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY No. WI 142 of 1994 B E T W E E N: JOHN GOULDING AND TRANSPORT WORKERS UNION OF AUSTRALIA Applicants - and - QUALITY BAKERS AUSTRALIA LTD Respondent REASONS FOR JUDGMENT BEFORE : Judicial Registrar Farrell PLACE : Perth DATE : 18th January 1995 This Application was made pursuant to Section 170EA of the Industrial Relations Act 1988 in respect of the Applicant's employment with the Respondent. The Applicant sought an Order declaring that the termination of his employment by the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988 and he sought reinstatement and compensation. The Applicant was a 62 year old breadcarter when his employment was terminated by the Respondent on the 22nd April 1994. His employment had commenced with the Respondent in March 1978. He had thus had 16 years of service at the time his employment was terminated. It was the employer's contention in this claim that the Applicant's employment was terminated because his position had become redundant. The parties requested that I deal with two Notices of Motion filed by each of them initially. The Respondent's Notice of Motion sought to have the Application dismissed because it was out of time and the Applicant's Notice of Motion sought an extension of time. The Application was issued 27 days after the final date that the Applicant worked. The Industrial Relations Act 1988 provides in Section 170EA(3): "An application must be made:- (a) within 14 days after the employee receives written notice of the termination; or (b) within such further period as the Court allows on an application made during or after those 14 days." The Respondent argued that the Application was out of time on the basis that any of three separate documents that it had provided to the Applicant amounted to written notice. The first two of these documents were calculations of payments that the Applicant was to receive on termination of his employment. These documents could just as easily have been consistent with the Applicant resigning as with his employment being terminated. The third document on which the Respondent sought to rely was a form known as a Statement of Termination Payment which is a form that must be completed by an employer for the purposes of the Australian Taxation Office. It is provided to employees regardless of whether they resign or their employment is terminated. In my view none of the three documents that the Respondent sought to rely on was a written notice for the purposes of the Act. In my view a written notice should be clear and unequivocal in advising the Applicant that his employment is being terminated and on what date. It should be addressed to the Applicant and it should be signed by the Respondent or a person employed by the Respondent having the appropriate authority to terminate the Applicant's employment. It is also preferable that the Notice should spell out the reasons for the termination of employment. I therefore dismiss the Notice of Motion of both the Applicant and Respondent on the basis that no extension of time was necessary in regard to this matter. If I am wrong in that regard then I note that evidence was given regarding the possible prejudice to each of the parties and that I would have granted an extension of time to the Applicant if necessary. In this matter evidence was given by the Applicant, Mr Goulding, Mr Andrew Waddell, a Union Official and Mr Murray Scott, the State General Manager of the Respondent. In addition a number of documents were put before me including a copy of transcript from a related matter before the Court. During the hearing of this matter a considerable amount of evidence was given regarding an agreement that had been negotiated between the Union and the employer in respect of redundancy payments. The Applicant, Mr Goulding, gave evidence that he was unaware of those negotiations. I accept without any reservation the evidence of Mr Goulding. In my view the negotiations and whether or not an agreement was reached are irrelevant to my decision. The Applicant's rights under Division 3 Part VIA of the Industrial Relations Act 1988 cannot be overridden by such an agreement. In my view the two issues to be decided are as follows. Firstly, was there a valid reason for the dismissal of the Applicant. Secondly, if there was a valid reason for the dismissal was the dismissal carried out in a fair manner. With regard to whether or not a valid reason existed for the dismissal of Mr Goulding, the employer argued that this was a genuine redundancy. The Industrial Relations Act 1988 does not mention "redundancy". It refers instead to the "operational requirements of the employer". In my view the employer should have put direct evidence before me as to the operational requirements of its business, and how the termination of this Applicant was necessary to fulfil those requirements. The evidence I have in that regard was the evidence of Mr Scott who indicated that the Company was eliminating a large number of customers because they were uneconomical. In addition I was provided with transcript from the decision from the hearing of matter WI 154 of 1994 Wickham -V- Quality Bakers Australia. Evidence in that case was given by a Mr Milligan, Sales Manager for the Respondent regarding the economic situation of the Respondent. The evidence reveals that there were 57 breadcarters employed by the Respondent. The Respondent lead no evidence as to why it chose Mr Goulding rather than any other employee. There was no evidence as to the criteria used for selecting the Applicant for redundancy. There were references in the evidence that suggest the reasons for termination relate to other factors. For example, in Wickham's case Mr Burton, a Union Official, gave evidence that the age of the Applicant was a factor. In the evidence of Mr Scott he referred to "people who were really struggling." An Affidavit of Mr Milligan, filed in the matter of Wickham, and handed up as an exhibit in this matter by the Respondent includes the statement "Mr Burton replied that he would tell them (the breadcarters) that a redundancy agreement had been reached between Buttercup and the TWU and that it would be far better for them to accept this package than the Company taking disciplinary procedures against them if they could not perform their job satisfactorily". The onus is on the employer to prove that an employee who is terminated in a redundancy situation is terminated in accordance with fair selection criteria. Unless the employer can so prove then the dismissal is not for a valid reason. In this case the employer has not discharged that onus. I therefore conclude that the termination of the employment of Mr Goulding was not for a valid reason and was in breach of the Act. I also regard the manner adopted by the employer in terminating Mr Goulding to be unfair. Here was an employee who had given 16 years of service to the company. He was not consulted regarding the impending redundancy and his requests for meetings with the Respondent were not met. As to remedy the Applicant gave evidence regarding his unhappy circumstances since the termination of his employment and the difficulty he had experienced in trying to find alternative employment because of his age. Reinstatement is the primary remedy provided for by this Legislation and in my view it is the appropriate remedy in this case. Accordingly I will order the employer to reinstate the Applicant. I certify that this and the preceding 5 pages are a true copy of my Reasons for Judgment Signed: Dated: Counsel for the Applicants : Ms V Ponnuthurai Counsel for the Respondent : Mr Kenner Hearing Date : 16 November 1994 CATCHWORDS INDUSTRIAL LAW -Termination of Employment - written notice of termination: extension of time - redundancy - valid reasons for termination. INDUSTRIAL RELATIONS ACT 1988, ss 170DE, 170DC, 170EE, 170EA JOHN GOULDING AND TRANSPORT WORKERS UNION OF AUSTRALIA -v- QUALITY BAKERS AUSTRALIA LTD No. WI 142 of 1994 BEFORE : L Farrell PLACE : Perth DATE : 18th January 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY No. WI 142 of 1994 B E T W E E N: JOHN GOULDING AND TRANSPORT WORKERS UNION OF AUSTRALIA Applicants - and - QUALITY BAKERS AUSTRALIA LTD Respondent MINUTES OF ORDER BEFORE : Judicial Registrar Farrell PLACE : Perth DATE : 18th January 1995 THE COURT ORDERS THAT: 1. The termination of the Applicant's employment by the Respondent contravened division 3 of Part VIA of the Industrial Relations Act. 2. That the employer reinstate the employee as from 23rd January 1995. 3. The employer do pay to the employee the remuneration loss by the employee because of the termination between the 22nd April 1994 and 23rd January 1995. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules