Edward Alphonsus Kenny and John Henry See [1995] IRCA 23

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY NO. ACT 1128 OF 1994 BETWEEN: EDWARD ALPHONSUS KENNY Applicant AND: JOHN HENRY SEE Respondent RESPONDENT FOR JUDGMENT BOULTON J.R. The applicant brings an application in respect of the respondent's termination of his employment on 18 June 1994. The facts as I find them are as follows. The applicant is now 54 years old. For much of his working life he worked as a wool classer. For three years he managed his father's pastoral property. He has also been a truck driver and has worked for grain marketing boards. The applicant answered an advertisement dated 25 February 1993 (ex. A1) for a caretaker/manager for the respondent's cattle property near Cooma. While I accept evidence called on the applicant's behalf in preference to that of the respondent, I find the applicant was mistaken in his evidence about the remuneration agreed upon between the respondent and him. That remuneration I find to be $400.00 gross per week plus a house to live in, free electricity, the cost of local telephone calls and the use of a four wheel drive vehicle. The applicant's wife was separately employed by the respondent to man the telephone, to take bookings for any visitors wishing to stay in cottages on the property, to clean those cottages and if necessary, cook for those visitors. She was to be paid $100.00 gross per week and 10% commission of the tariff paid by visitors. The applicant commenced work for the respondent on 25 March 1993. His wife did not join him at the property until about July 1993. The applicant's principal duties were looking after cattle, fencing and water, looking after the lawns and gardens around the homestead and general maintenance. There were also rabbits which had to be dealt with. The respondent who lived elsewhere, visited his property about once a fortnight. The applicant hurt his back working in the cattle yards at the property on 21 October 1993. His back worsened until, about 9 June 1994, he underwent a laminectomy and a discectomy. While recuperating in hospital, the applicant was handed a letter of termination of his employment dated 18 June 1994 (ex. A3). The respondent subsequently provided the applicant with an excellent reference, dated 23 June 1994 (ex A4). Despite termination, the applicant and his wife were permitted to remain on the respondent's property until 1 September 1994. The applicant has not worked since his June 1994 operation. He underwent a further operation on his back in November 1994. His treating specialist recently told him he should not return to the sort of work he was doing for the respondent. The account which follows illustrates the quandary the respondent found himself in at trial. In the letter of termination, the reason given to the applicant for terminating his employment was "Mary (the respondent's wife) and I are unable to have any reasonable relationship with Fay (the applicant's wife)". In an affidavit sworn by the respondent and filed on 28 July 1994, the reasons for the respondent's decision to terminate the applicant's employment were said to be: "..... the applicant was offered and accepted employment on a temporary basis. Further that the respondent's property Rose Valley Station, Cooma, was to be sold and that the applicant's employment was of a limited duration. The applicant accepted employment of a limited duration and agreed that frequent inspections from prospective buyers would occur and the residence currently occupied by the applicant was to be sold. Further that the applicant failed to facilitate home and property inspections clearly prejudicing the respondent's capacity to dispose of the property". At trial, the representative of the respondent attempted to rely on yet other reasons. These, as I understand them, were linked to the applicant's alleged incompetence as a manager, and the fact that his continued employment was linked to the continued employment of his wife, they having been employed (allegedly) by the respondent as a couple. It is sufficient to dispose of the respondent's case by observing that none of these multifarious grounds was proved. I consider that whatever the real reason for the respondent's termination of the applicant, it did not amount to a valid reason within the meaning of ss.170DE(1) of the Industrial Relations Act 1988. The termination contravened that subsection. Neither procedural nor substantive fairness was accorded the applicant. In a written submission, the respondent submitted that the regulation 30B of the Industrial Relations Regulations applied to the applicant's employment. In the present circumstances, I consider it is sufficient to dispose of this submission by saying it is misconceived. The respondent also mounted an argument that the applicant's employment was caught by the provisions of an Award. It was submitted that this had some impact on the question of the quantum of compensation which might be awarded. Given the size of the compensation I have assessed I find it unnecessary to determine this question. The applicant's remuneration package was of the order of $800.00 gross per week. Reinstatement was not sought. In any event, the applicant's medical condition makes reinstatement impracticable. I assess appropriate compensation as being the sum of $12,000.00. In arriving at that assessment, I take into account that the applicant was paid for 2 weeks in lieu of notice, he may have had some (unpaid) unfitness for work following his June 1994 operation, he had the benefit of remaining on the respondent's property until 1 September 1994 and his likely inability in any event to do the sort of work required by the respondent after his second operation in November 1994. The applicant's entitlement, if any, to workers' compensation as a result of the injury to his back on 21 October 1993 will be determined elsewhere. The orders I make are: 1. The application is allowed. 2. The respondent to pay the applicant the sum of $12.000.00 within the 21 days of the date of these orders. 3. Liberty to the respondent to apply, if so advised, in respect of the timing of payment of compensation. I certify that this and the preceding SEVEN (7) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton. ............................................................... Judicial Registrar DATED: 3 February 1995