C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether employee resigned or was terminated - whether VALID REASON - whether PROCEDURAL FAIRNESS - claim in the accrued JURISDICTION - REMEDY. INDUSTRIAL RELATIONS ACT 1988, Ss 170EA, 170DC, 170DE, 170EE ADAM DANIEL BOYES v PRECISION ENGINE PARTS GROUP PTY LTD - WI 95/1531 BEFORE: BOON JR PLACE: PERTH DATE: 2 AUGUST 1995 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1531 BETWEEN: ADAM DANIEL BOYES - Applicant AND: PRECISION ENGINE PARTS GROUP PTY LTD - Respondent BEFORE: BOON JR PLACE: PERTH DATE: 2 AUGUST 1995 MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The claim for unpaid wages under the Court's accrued jurisdiction is dismissed. 2. The Respondent pay to the Applicant the sum of $754.68 by way of compensation for the unlawful termination of the Applicant's employment within 21 days of the date of this order. NOTE: Settlement and entry of Orders dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1531 BETWEEN: ADAM DANIEL BOYES - Applicant AND: PRECISION ENGINE PARTS GROUP PTY LTD - Respondent BEFORE: BOON JR PLACE: PERTH DATE: 1 AUGUST 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising out of the alleged unlawful termination of the Applicant's employment by the Respondent. There is a further claim under the accrued jurisdiction for back pay to which the Applicant claims he is entitled under an award. The Applicant maintains that his employment was terminated by the Respondent when he queried the amount of pay he had been receiving. He says that his employment was terminated for a reason which was not a valid reason within the meaning of Section 170DE of the Act. Further, he states that he was not given an opportunity to answer allegations against him as required by Section 170DC of the Act. The Respondent on the other hand denies that the termination was at the initiative of the employer within the meaning of Section 170EA of the Act and states that the Applicant's employment ceased when the Applicant voluntarily resigned. The Respondent denies that the Applicant was covered by an award and states that there is no back pay owing to the Applicant. BACKGROUND The Applicant, Adam Boyes, was born on 26 March 1976 and is now aged 19 years. Mr Boyes commenced employment with the Respondent on 12 January 1994. There was no written contract of employment. It was initially agreed between Mr Boyes and the Respondent that he would work on a casual basis five days a week between the hours of 8.00 am and 5.00 pm. It is common ground that his duties included packaging, taking in stock, despatching stock, cleaning and various general duties as required. The Respondent's business involves the wholesale of automotive engine parts. Mr William Nitschke is the National Manager of the Respondent. Mr John Tougher is the State Manager of the Respondent. Mr Nitschke came to Western Australia on only two or three occasions during the Applicant's employment with the Respondent. Mr Tougher carried out the day to day management of the Respondent's business in Western Australia and in that capacity he had daily contact with Mr Boyes. It is common ground that Mr Tougher and Ms Beahan, another Manager involved in the Respondent's business, had on several occasions in the course of the Applicant's employment spoken to the Applicant about his work performance and his standard of dress. It is the Respondent's position that the Applicant was dirty and unkempt when he arrived for work and further that his work performance would deteriorate over some time until he was spoken to by his employers after which an improvement was seen for a short period. Mr Boyes denied that there was anything lacking in his performance and also stated that because of the nature of the work in which he was involved his clothes became very dirty during the day. The work involved a lot of carrying of engine parts, some of which were covered in grease. Mr Boyes denied that he arrived at work with dirty clothes and denied that his hair was always unkempt. The Precision Engine Parts Group moved to different premises over the Easter weekend in 1995. Mr Boyes gave evidence that before Easter he had heard rumours that the staff of the Respondent were not going to be paid properly for working over the Easter break. He telephoned the Department of Labour and Productivity's Wageline and that organisation advised him as to the remuneration he was allegedly entitled to. Mr Boyes and the other members of the Respondent's staff (including management) worked over the entire Easter weekend, namely from Friday 14 April 1995 to Monday 17 April 1995 inclusive. Mr Boyes was paid a total of $675.24 for his work over this Easter period. He contends that he should have been paid for his work as follows: Friday 9 hours x 2.5 (rate) x $9.93 = $223.42 Saturday 2 hours x 1.5 (rate) x $9.93 = $29.79 7 hours x 2 (rate) x $9.93 = $139.02 Sunday9.5 hours x 2 (rate) x $9.93 = $188.67 Monday 8.5 hours x 2.5 (rate) x $9.93 = $211.01 ______ $791.91 He alleges that he was underpaid in the amount of $116.67. Some of the work required of Mr Boyes and the other staff over the Easter weekend was heavy. All of the stock of the Respondent company had to be moved to different premises. Mr Boyes gave evidence that his work involved a lot of bending over, picking up heavy equipment, and that the breaks were minimal. He became very tired as a result. Some of the work was extremely boring. There were many boxes of nuts and bolts. Each box had a code on it and part of his duties was to put these boxes in numerical order on the shelves at the new premises. According to Mr Nitschke, there were 1800 of these boxes to be shelved. The shelving job was done only after Mr Boyes and Mr Tougher had physically removed the boxes from the old premises onto a truck, driven the truck to the new premises and unloaded the boxes. Mr Nitschke gave evidence that on his prior trips to Perth he had not had the opportunity to observe the Applicant's work performance. The Easter weekend was the first time that he had really been able to see and assess his quality of work. His view was that Mr Boyes was lazy and he was amazed that he had been employed with the company for such a long period. He said that if his work performance was so bad while the boss was there he could not imagine what his performance was like when the boss was away. Mr Nitschke said that on each day over the Easter break he had had to speak to Mr Boyes because in his view he had not worked fast enough. It was clear by his attitude and his performance that he did not wish to work over the Easter weekend. Basically, Mr Boyes' view was that he worked extremely hard over the Easter weekend and was not paid according to the rates set out in the appropriate award. Mr Nitschke's view was that the Applicant did not work nearly hard enough and was paid at a rate well above the minimum wage. Mr Nitschke did not consider that there was any applicable award relating to the Applicant's employment. THE CONCLUSION OF THE EMPLOYMENT RELATIONSHIP Mr Boyes gave evidence that on Friday 21 April 1995 he went to work after having checked the rates given to him by Wageline. He considered that he had been underpaid and he went to Christina Beahan to raise the matter with her. He asked what the gross income hourly rate was at which he had been paid over the Easter weekend. Ms Beahan asked him if there was a problem and he said he might have been underpaid. At 5 o'clock on that same day Mr Boyes went to see Mr Nitschke to see if he had the necessary information which would enable him to assess whether or not he had been paid properly. He was shown into Mr Nitschke's office and Mr Nitschke said that he could wait for ten minutes while he obtained the information or see him about it on the following Monday. Mr Boyes said that he would wait the ten minutes. Mr Nitschke then told him that he was paying Mr Boyes more than the required rate. Mr Boyes asked Mr Nitschke what rates he was referring to as he (Mr Boyes) was a casual worker. There was some discussion during which Mr Boyes told Mr Nitschke of the rates he considered he should have been paid under the Shop and Warehouse (Wholesale and Retail Establishments) Award. According to Mr Boyes, Mr Nitschke then said to him "You are not worth that kind of money, don't bother coming back to work". Mr Boyes said Mr Nitschke then lost his temper. Mr Nitschke screamed at him and used some foul language. Mr Boyes then went out of Mr Nitschke's office and into the kitchen, where he poured the water from his drink container into the sink. According to Mr Boyes, Mr Nitschke threatened to ram his fist down his throat and Mr Boyes replied "That will get you nowhere". Mr Boyes denied saying to Mr Nitschke "You can stick your job up your arse" as alleged. He also said that the termination conversation was held in Mr Nitschke's office, with at least one room separating it from the area in which Ms Beahan and Mr Tougher were positioned. Mr Boyes said that as he left the Respondent's premises he walked past Mr Tougher in the warehouse and said "Nice working with you John, it's a pity you have to work with shit like that". Mr Nitschke stated that at the close of the day in question, Ms Beahan showed Mr Boyes into his office. He had asked Mr Boyes to wait ten minutes while he worked out the pay, or alternatively to wait until the following Monday. Mr Boyes referred to the award under which he alleged he was entitled to be paid, and Mr Nitschke said he was not paid under an award but that he had chosen to pay him the agreed amount which was higher than the minimum wage. Mr Boyes said to Mr Nitschke "You can stick your job up your arse" quite loudly and left Mr Nitschke's office. Mr Boyes then went into the kitchen, with Mr Nitschke in pursuit, and emptied the water bottle so that the water splashed everywhere. Mr Nitschke said "Cut it out" and Mr Boyes said "Who's going to make me?". Mr Nitschke then said "Get out of here you little turd". Mr Boyes left the kitchen and Mr Nitschke followed him. He heard Mr Boyes say to Mr Tougher "Nice working with you John, a pity you have to work with shit like that". Mr Tougher gave evidence that when Mr Nitschke and Mr Boyes were walking towards Mr Nitschke's office, he heard Mr Boyes say that he thought he should have been paid more. He heard Mr Nitschke say that for the job Adam had done he was not worth more. This was said leading into the office and he did not hear more until they came out of the office and went into the kitchen. Mr Boyes was splashing water everywhere. Mr Nitschke said "Cut it out" and Mr Boyes said "Who's going to make me". Mr Boyes then came out and said to Mr Tougher "I told him to belt it. Nice working with you John, a pity you have to work with shit like that". Mr Tougher took the words "I told him to belt it" as meaning that Mr Boyes had quit. Ms Beahan gave evidence that on the day in question she had taken Mr Boyes to Mr Nitschke's office and she had closed the office door on them. After a while Mr Boyes and Mr Nitschke came out into the kitchen hallway and because a window was open she could overhear a conversation in that hallway. Mr Nitschke said "Are you happy with that" and Mr Boyes said "No". Mr Nitschke said "You must be joking, you're not worth any more" and Mr Boyes said "You can stick your job up your arse". Mr Boyes then went into the kitchen and threw water around. It is always difficult when faced with a conflict of evidence to determine what really happened. It appeared to me from the evidence that as everyone at the Respondent's workplace had worked long hours over the Easter weekend and there had been some strains placed on the employer and employee relationship, contributed to in part by the stress of moving the stock of the Respondent in a short period of time; in part by Mr Boyes' perception that he was not going to be paid properly for the overtime he had worked; and also by Mr Nitschke's perception that Mr Boyes was not pulling his weight. I have had the benefit of assessing the demeanour of the parties and I have come to the conclusion that on balance I prefer the evidence of Mr Boyes that he did not resign. Although the Respondent relies on the evidence of three witnesses, this is not something to be decided by weight of numbers. There were significant inconsistencies between the evidence of the Respondent's three witnesses as to what transpired on the day in question. Mr Nitschke and Mr Boyes were, on their evidence, in Mr Nitschke's office when the vital part of the conversation took place. The door was shut. Although Ms Beahan stated that she heard Mr Boyes say to Mr Nitschke that he could stick his job, she said this was said when they were walking to the kitchen, and this conflicts with Mr Nitschke's evidence that it was said in the office. Further, although the Respondent relies on Mr Tougher's evidence that Mr Boyes said "I told him to belt it. Nice working with you John, a pity you have to work with shit like that", this was not supported by the evidence of Mr Nitschke, who heard only the last part of that statement, something which Mr Boyes admits he said. The Respondent points to some alleged inconsistencies in Mr Boyes' evidence as a whole but I found Mr Boyes to be a believable witness: an intelligent young man who conducted his case in person quite well under difficult circumstances. WAS THE TERMINATION UNLAWFUL? It follows from my finding that the Applicant's employment was terminated at the initiative of the employer, that the termination breached the provisions of the Industrial Relations Act. Mr Boyes was not satisfied that he was paid all that he should have been paid for working over the Easter long weekend. When he queried this with Mr Nitschke and stated that he thought he should have been paid according to the provisions of the award, Mr Nitschke told him that he was not worthy of any more and said not to bother coming back. Mr Boyes was not given an opportunity to respond to the allegations about his performance as required by Section 170DC. Further, the circumstances surrounding the termination of Mr Boyes' employment did not amount to a termination for a valid reason as required by the provisions of Section 170DE. Although Mr Nitschke was clearly irritated by what he saw as a lack of a concerted effort by Mr Boyes over the Easter long weekend and had had several occasions to speak to Mr Boyes about it over those few days, this does not appear to have been the reason for the termination. Some time was taken up at the trial with seeking to establish that Mr Boyes used bad language, and that he was dirty and unkempt. Some of those allegations were, in my view, quite petty. The duties Mr Boyes was required to perform consisted of heavy and dirty work; he did not have regular contact with the public other than with mechanics who were themselves often dirty; and it appears that Mr Tougher himself often used bad language. It was said that Mr Boyes' performance of his duties was sometimes slow and that he did not clean the Respondent's premises adequately. It may be that the employment relationship would not have lasted much longer in any event. THE CLAIM FOR UNPAID WAGES The evidence is that Mr Boyes agreed with the Respondent that he would work on a casual basis five days a week. No mention was made of an award. Mr Boyes considers that the provisions of the Shop and Warehouse (Wholesale and Retail Establishments) Award applied to him. Mr Boyes obtained information from the Department of Productivity and Labour Relations as to the provisions of that award. Mr Nitschke denied that the provisions of the award applied to Mr Boyes, although he agreed that he used the award as a guide and paid Mr Boyes the sum of $9.93 per hour stipulated by the award for his normal duties based on a 38 hour week. Mr Nitschke considered that in paying Mr Boyes an amount considerably above the minimum wage, he was paying him at a high enough rate. Mr Boyes' argument was that as he was required to work on average a 42 to 43 hour week, he was considerably underpaid. The Respondent denied that Mr Boyes worked more than a 38 hour week and says that he frequently worked for substantially less time than he was paid for. It may well be that the provisions of the award applied to Mr Boyes but there was insufficient evidence before this Court for me to be satisfied that this was so. The onus of proof is on the Applicant and it has not been sufficiently discharged. I therefore dismiss the claim for unpaid wages made under the Court's accrued jurisdiction. REMEDY The only question for this Court to now determine is the appropriate remedy under Section 170EE. I am satisfied from the evidence that the ill feeling between the parties is such as would make reinstatement impracticable. Further, the Applicant's evidence was that he was successful in obtaining alternative employment some two and a half to three weeks after the termination. In his new position the Applicant is paid at a higher rate than at which he was paid by the Respondent. In the circumstances, I consider that the appropriate order is for the payment of compensation of two weeks' wages. I therefore make the following orders: 1. The claim for unpaid wages under the Court's accrued jurisdiction is dismissed. 2. The Respondent pay to the Applicant the sum of $754.68 by way of compensation for the unlawful termination of the Applicant's employment within 21 days of the date of this order. I certify that this and the preceding nine pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon. Associate Date: The applicant appeared in person Counsel for the respondent: Mr J Picton-Warlow Solicitors for the respondent: Picton-Warlow & Co Date of Hearing: 11 July 1995 Date of Judgment: 2 August 1995