C A T C H W O R D S INDUSTRIAL LAW - Termination of Employment - whether the Applicant required to "camp out" - summary dismissal - whether termination harsh, unjust and unreasonable. INDUSTRIAL RELATIONS ACT 1988, S170EA, S170DE IAN JAMES TRANTER -V- COUNCIL OF THE SHIRE OF WENTWORTH NO. VI 1264/1994 Judicial Registrar: L Farrell Place: Adelaide Date: 16th March 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1264/1994 B E T W E E N: IAN JAMES TRANTER Applicant AND COUNCIL OF THE SHIRE OF WENTWORTH Respondent MINUTES OF ORDER Judicial Registrar Farrell Dated: 16th March 1995 THE COURT ORDERS THAT: 1. The termination of the Applicant's employment by the Respondent contravened Division 3 Part VIA of the Industrial Relations Act. 2 That the respondent do pay to the Applicant compensation in the sum of $11,180.00 within fourteen days of today's date. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1264 OF 1994 B E T W E E N: IAN JAMES TRANTER Applicant AND COUNCIL OF THE SHIRE OF WENTWORTH Respondent BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 16TH MARCH 1995 REASONS FOR JUDGMENT This is an Application pursuant to Section 170EA of the Industrial Relations Act 1988. The Applicant claims compensation following the termination of his employment by the Respondent on the basis that the termination of his employment was unlawful. I find the facts as follows. The Applicant was employed by the Respondent from December 1989 to July 1994. He was initially engaged on a casual basis in the parks and garden sections of the Respondent. His employment became permanent after three months. In October 1993 he was moved from that section of the Respondent to the road maintenance section where he came under the supervision of Mr Lindsay Doolan. It should be noted that in October 1993 he was moved from the parks and gardens section essentially because of difficulties he was experiencing with his supervisor in that section. In February 1994 after an absence on annual leave the Applicant agreed to go out as an "off-sider" to a grader. This meant that he camped out overnight for the time that he worked. On that occasion it was for a period of two weeks. On the 13th July 1994 he was requested again to work as an off-sider and he camped out for four nights. On the day of his dismissal, the 22nd July 1994, he was advised that he would be required to camp out commencing on the following Monday. He refused and he advised Mr Doolan of his reasons. Subsequently he was handed a written warning. He again refused and his employment was terminated summarily. The Applicant alleged that a vendetta was being conducted against him by his earlier supervisor and he stated that this was the real reason for his termination. The evidence does not support such a finding and I find that this had no bearing on the termination of his employment. The Applicant also argued that "camping out" was not a term and/or condition of his employment. It was not something that he ever agreed to do as part of his contract of employment. The Respondent argued that the "Municipal and Shire Council Wages Staff Award", being the Award that it was agreed covered this person's employment (hereinafter referred to as "the Award"), compelled all persons employed by the respondent pursuant to the Award to camp out if required by the employer to do so. I do not accept that argument regarding the Award. The Award contained a prescription as follows: Clause 14 "(i)(a) employees who are required to camp out either by the Council or because no reasonable transport facilities are available to enable them to proceed to and from their homes each day shall be paid a camping allowance of (see appendix) for each day they camp out....." and "xiii no employee shall be required to camp without at least 24 hours notice unless he agrees to do so". In my view something else other than the Award has to deal with the requirement to camp out. Clause 14 of the Award only provides for the conditions that must be met by the employer in relation to camping out, it does not of itself compel employees to camp out. It is interesting to note that since shortly before the Applicant was dismissed that new employees were being required by the Respondent to agree at the commencement of their employment to camp out. It was not argued before me by the Respondent that it was part of custom and practice that the Applicant was required to camp out or that his consent to camping out on two occasions in 1994 rendered it a part of his contract of employment. I therefore conclude that the Respondent had no valid reason for terminating the Applicant's employment. Even if camping out was a part of the Applicant's contract of employment I would still find that the termination of the Applicant's employment by the Respondent was harsh, unjust and unreasonable. It was in evidence that on the day of the termination of the Applicant's employment that some other employees were asked if they would camp out. They refused to do so. In one case because of the health situation of that person's wife and in another case for reasons that were not given during the course of the hearing. It seems to me that some greater effort could have been made by the employer to find an employee who was willing to camp out or alternatively to assess the competing needs of it's workforce in determining who should be required to camp out. It seems unfair in the circumstances that the Applicant was singled out to be summarily dismissed for refusing to work as an offsider when no other employee's refusal resulted in the termination of their employment. An employee of the Respondent named Steve, who normally did the off-siding work, had requested that he no longer perform that duty because of his wife's pregnancy. The evidence regarding Steve's situation was unclear. The Applicant gave evidence that Steve's wife was not due to give birth for a period of approximately three months. It appears from Mr Doolan's evidence that he was unaware of this. In any event it shows a considerable discrepancy in the way the Applicant was treated by comparison to other similar employees. In my view the manner in which the Respondent dealt with the applicant in deciding to terminate him on the 22nd of July 1994 was exceedingly harsh.The applicant's reasons for not wanting to camp out should have been given some consideration,his request to discuss the matter with the general manager ought to have been complied with. I find that the termination of the Applicant's employment by the Respondent was harsh, unjust and unreasonable. The Applicant did not claim reinstatement. The Applicant gave frank evidence regarding his current employment situation. He has been obtaining seasonal work as a fruit picker. He has been unable to and believes he will continue to be unable to find employment in Wentworth where he lives on a full time permanent basis. He does not wish to leave that area because of his family commitments. The Act limits compensation to be awarded to six months pay. In my view the limit relates only to the quantum that can be awarded. It does not limit the period that I can have regard to in determining what compensation should be paid to the applicant. In the circumstances and bearing in mind that there was no attack on the Applicant's evidence regarding the limited job opportunities in the Wentworth area I award the Applicant the sum of $11,180.00 by way of compensation to be paid within fourteen days of today's date. I certify that this and the preceding 3 pages are a true copy of my reasons for judgment. DATE OF HEARING: 8th & 9th February 1995 FOR THE APPLICANT: Mr. Richards FOR THE RESPONDENT: Mr. Hanson