Lin v Allied Container Services Pty Ltd [1995] IRCA 177

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1583 of 1994 B E T W E E N : GUANG JIE LIN Applicant AND ALLIED CONTAINER SERVICES PTY LTD Respondent Before: Judicial Registrar Fleming Place: Melbourne Date: 3 May 1995 REASONS FOR JUDGMENT This application was made pursuant to s.170 EA of the Industrial Relations Act 1988. Mr Lin was employed by the respondent as a welder on 13 December 1993. His employment was terminated on 1 September 1994. Mr Lin is subject to the Metal Industry (Skilled) Award No.2 of 1990 ("the Award"). The reason given for Mr Lin's dismissal was that he was dismissed due to the insufficiency of available work. There is no suggestion that the applicant was dismissed for poor work performance or poor work conduct. Findings of fact: Mr Lin's English speaking skills are rudimentary. At the initial interview with Mr Toth, Mr Lin understood his terms of employment would be as a casual employee for 2 months following which he would be made permanent. During his period of employment, the applicant received sick pay on 3 occasions and, on termination, was paid termination pay of $909. Mr Lin gave evidence that, since arriving in Australia from China in 1990, he had been working as a welder. He tendered a Certificate of Welder for Boiler and Pressure Containers (Exhibit 1). This Certificate was translated on 19 June 1994. The translator cannot guarantee the authenticity of the original document but I accept the translated document. The certificate stated that Mr Lin was tested in March 1983 and passed the test to obtain a Certificate of Welder. I accept that Mr Lin had prior experience as a welder, however, there is no evidence before me that this Certificate qualifies Mr Lin to do the work which was required by the respondent and so I can make no finding in this regard. As his work performance is not in issue in these proceedings, nothing turns on this point. Mr Toth's evidence was that Mr Lin was employed as a casual employee. Mr Toth's evidence initially was that Mr Lin was employed strictly as a casual because of his lack of experience. Mr Toth conceded in his evidence that Mr Lin had told him: "back home he had some experience as a welder." Mr Korsten gave evidence that Mr Lin was a good welder after three and a half months service with the respondent. In his affidavit dated 2 December 1994, Mr Toth however cited a different reason why Mr Lin was employed as a casual employee. In paragraph 6, Mr Toth says: "I agree that the applicant was employed on a casual basis but it was not for the first 2 months only. The nature of steel work available to the respondent meant it was not possible to anticipate how many welding employees were needed from month to month." I prefer the evidence of Mr Lin that he was initially a casual employee for two months and then became a permanent employee. In support of this finding was the payment of sick pay and termination pay paid to Mr Lin and also that he was not paid casual rates in accordance with the Award, but rather was paid the same hourly rate as permanent employees, that is, $13.00 per hour. I comment however that, given the problems the parties must have had with communicating, that the employer should have clarified the terms of employment in a way that Mr Lin clearly understood prior to the commencement of the employment with the respondent. Termination of employment Mr Lin gave evidence that on the day of termination, Mr Toth said to him: "Here is your pay, no more job, you can go." Mr Lin said there was no one else at this meeting and that he was not told that others were to be retrenched or that he was retrenched on the "last in first out" principle. Mr Lin was unaware that anybody else was terminated on the same day as he was and Mr Lin stated that the two workers whose employment is alleged to have been terminated on the same day were still there on 1 September 1994. Mr Lin's evidence was that he was shocked and surprised to be retrenched. Mr Lin said that at no stage did Mr Toth discuss the availability of other jobs either in his establishment or elsewhere although Mr Toth gave evidence that he knew 50 to 60 people in the industry or about 30 other companies. Mr Lin's evidence was also that he was very busy just before his dismissal and that he was working 40 to 48 hours per week. Mr Toth gave evidence that he knew up to six weeks before Mr Lin's employment was terminated that the orders had completely stopped. He conceded that he did not ask Mr Lin what other work he could do "because I know what he is capable of doing." Mr Toth conceded that he had breached the Award. Clause 40(j) of the Award states: "Employees with less than one year service. This clause shall not apply to employees with less than one year continuous service and the general obligation on employees should be no more than to give relevant employees an indication of intending redundancy at the first reasonable opportunity, and to take such step as may be reasonable to facilitate the obtaining by the employee of suitable alternative employment." No warning was given to Mr Lin of the impending redundancy. Mr Toth knew six weeks prior to the day of Mr Lin's termination that orders had completely stopped and, on that evidence, it would be likely that some employees would be dismissed. Mr Toth gave evidence however that the decision to retrench Mr Lin was made one week prior to the dismissal but that he had spoken about it one month before then. Mr Toth's evidence was that Mr Lin was retrenched because there was insufficient work. This evidence conflicts with Mr Lin who said he was busy at the date of the dismissal and was surprised and shocked by the dismissal. Mr Toth sought to rely on figures tendered to the Court and set out in his affidavit of 10 October 1994. In cross-examination, Mr Bailey put to Mr Toth paragraph 6 of his affidavit dated 10 October 1994 which reads as follows: "As the respondent generally invoices its clients in the same month that work is carried out it is possible to assess the level of work that was available to the respondent by looking at the credit sales figures. All sales are invoiced and credit is given to all customers. The following sales figures were achieved for the period June 1993 to September:" Mr Bailey put to Mr Toth that the first sentence of this paragraph was not true to which Mr Toth responded: "True in which sense." I find that the figures referred to in paragraph 6 are prone to be unreliable and are therefore unhelpful in establishing whether or not the work was diminishing either in July, August or September 1994. Both Mr Toth and Mr Korsten gave viva voce evidence that the amount of work available to the respondent had reduced. On Mr Toth's evidence, he became aware of this sometime in July 1994 and Mr Korsten deposes in his affidavit of 2 December 1994 to a meeting on 25 August 1994 where the amount of available work was discussed. Mr Lin however gave evidence that in July Mr Toth asked him if he knew of anyone who wanted welding work and that two new employees were hired to do welding work in the third week of August 1994. One of these employees was the brother-in-law of Mr Korsten. Mr Toth gave evidence that he employed two people five or six weeks before 1 September 1994. There is not sufficient evidence before the Court which would form a basis for finding that there was on 1 September 1994 a bona fide operational requirement that the employment of the applicant be terminated. I find that the respondent has not discharged its burden of proof and that there is insufficient evidence before this Court to make a finding that the applicant was retrenched due to shortage of work. Accordingly, I find that the applicant's employment was illegally terminated for failure to provide a valid reason. I make a further finding that the termination of employment was harsh, unjust and unreasonable. Mr Lin's English is minimal. He was not given an opportunity to discuss his employment with the respondent nor was he given any warning of the impending retrenchment. There was no counselling of Mr Lin nor was he assisted in any way to find future employment. There was no consideration of alternatives to the termination of the applicant's employment discusssed at any time. It is a credit to him that by virtue of knocking on doors, he has found new employment. I do not propose to rule on whether or not "last on first off" "policy" of the respondent is appropriate given my findings as detailed above. I turn now to consider the question of remedy in this matter. Remedy - s.170 EE The applicant does not seek reinstatement. He has been employed since 25 January 1995. Accordingly, I find that as alternative employment has been obtained reinstatement is impracticable. Turning now to compensation pursuant to s.170 EE(3), the applicant commenced his new employment on 25 January 1995. Although it was submitted by counsel for the applicant that his current base wage is $40.00 per week less than what he was receiving in the employ of the respondent, I find that there are no circumstances warranting any consideration beyond 25 January 1995 and I confine my consideration of appropriate compensation to the period 1 September 1994 until 25 January 1995 that is a period of 21 weeks from the date of termination. The evidence was that the applicant remained unemployed during that period. He received one week's pay in lieu of notice upon termination and was paid all outstanding entitlements. Whilst it was submitted that the applicant worked overtime in the weeks prior to termination of his employment, I do not propose to take into account future overtime possibilities in the calculation of the amount of compensation in this matter. I have therefore determined the amount of compensation by reference to the applicant's base rate of pay for the period of unemployment less the deduction for one week's pay in lieu of notice. The applicant's base rate of pay was $13.00 per hour. He received $520.00 per week for 40 hours ordinary time week. This amounts to $10,920.00, from which I propose to deduct $520.00 for paid notice. The total amount of compensation which will be ordered is $10,400.