Ian Thompson v Kertam Pty Ltd [1995] IRCA 533

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3265 of 1995 B E W T E E N : IAN THOMPSON Applicant A N D KERTAM PTY LTD Respondent Before: Judicial Registrar Fleming Place: Melbourne Date: 29 September 1995 REASONS FOR DECISION (delivered ex tempore and revised from the transcript) The applicant commenced employment with the respondent on 19 January 1994 as a glazier. His hours were 7.30 am to 4 pm and he worked regular overtime. On the morning of 24 March 1995, Friday, at 7.25 he telephoned his employer, George Lewis, to advise him that he would not be attending work that day as he had been awake most of the night with his 3 year old daughter who suffers from asthma. Mr Lewis responded with the surprising comment: "why did you have to stay up all night and hold her hand, you are the breadwinner and your wife is at home". Mr Thompson said his family was a one car family and he did not want to take the car in case his wife needed it to take his daughter to the hospital. Mr Lewis told Mr Thompson that, if he did not go to work that day, he need not go to work on Monday. Mr Thompson rang his employer again at 11 am and spoke to Mrs Lewis, the wife of Mr Lewis, and the bookkeeper for the respondent, and asked her if Mr Lewis was joking, and Mrs Lewis responded that he was serious. Mrs Lewis was an honest and credible witness, and I accept that she understood that her husband had conveyed the message to Mr Thompson that if Mr Thompson did not come in on Friday he need not return to work at all. Mr Thompson collected his tools on Monday and Mr Lewis denied him the opportunity of saying goodbye to his work colleagues. Mr Thompson received $514.50 per week in gross pay and overtime. He gave uncontested evidence that he performed regular overtime and the wage records, exhibit A1, reveal that in the four weeks to his termination he received $465.40 in overtime payments. Mr Thompson is currently employed and is receiving $514.50 per week and does not receive overtime. His evidence was that his overtime was very limited. Mr Thompson says that he was able to find employment on Tuesday, 28 March, and Mr Thompson's termination pay out includes holiday pay and termination pay but does not include pay for Friday, 24 March, or Monday, 27 March. Extension of Time In relation to the extension of time, the applicant filed his application on 13 June 1995, less than three months after the termination. The provisions of the Act require the applicant to make an application pursuant to section 170EA(3) within 14 days or such further period as the Court allows on an application being made. One has been made by Ms Patrick for the applicant. Mr Le Grand for the respondent submitted the Court ought not to extend the time for making an application to this Court. This Court takes into account the guidelines as set out by Keely J in Coker-Godson and TWUA v National Dairies Limited (1994) 57 IR 186, and also the guidelines as set out by Wilcox J, as he then was, in Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344. I have taken into account these guidelines. I have also taken into account the merits of the application in considering whether or not to extend time, and also considerations of fairness. Mr LeGrand submitted that there should be finality to the proceedings. I am in agreement with the spirit of the legislation that is to expedite the proceedings before this Court. However, the prejudice to the respondent in not extending time is minimal to that of the prejudice to the applicant in not extending time, and taking into account the merits of this particular case, I propose to order that the time for making an application before this Court be extended. Resignation or Termination In relation to the issue of whether or not there has been a termination or a resignation, Mr LeGrand submitted that Mr Thompson resigned. He relied on the decision of Moore J in Grout v Gunnedah Shire Council (1994) 125 ALR 355 and stated that the conduct of the employee amounted to repudiation of the contract. Although generally this is a persuasive submission on the facts of this case it is clearly untenable. Mr Thompson's employment was terminated by the respondent and for Mr Lewis to suggest that he gave Mr Thompson a choice is a nonsense. Mr Thompson had no choice. I find that Mr Lewis terminated the employment of Mr Thompson on 24 March 1995, and the termination was a direct result of Mr Thompson's family responsibilities. Section 170DF (1)(f) of the Act provides: "an employer must not terminate an employee's employment for any one or more of the following reasons and 1(f): family responsibilities." It is my view that Mr Lewis has terminated the employment of Mr Thompson on this basis. Mr Lewis has shown a complete lack of compassion and understanding towards his employee and his callous comments suggesting Mr Thompson should not have attended to the needs of his family on the evening of 23 March are extraordinary. I find that there was no valid reason for the termination. S170DC Mr Thompson was not given an opportunity to respond. Mr Lewis suggested that he gave Mr Thompson an opportunity to respond on the telephone. It is clear to this Court that the brief telephone conversation between Mr Thompson and Mr Lewis comes nowhere near to satisfying the requirements of section 170DC. It is clear that in the telephone conversation between Mr Thompson and Mr Lewis, Mr Thompson was uncertain as to his status, and rang Mrs Lewis for clarification. After talking to Mrs Lewis, Mr Thompson was clear that his employment was terminated because he did not go to work on the Friday. Harsh Unjust & Unreasonable Mr Lewis' attitude towards Mr Thompson was harsh, unjust and unreasonable. It is an attitude that this Court cannot and must not condone in any circumstances. I order that Mr Lewis has terminated the employment of the applicant without valid reason and that the termination is harsh, unjust and unreasonable. Remedy The applicant does not seek reinstatement, and it is clear to me that reinstatement is impracticable. Reinstatement is impracticable firstly, because Mr Thompson is currently employed, and secondly, because of both the attitude of Mr Lewis and the relationship between Mr Lewis and Mr Thompson. Accordingly I make an order for compensation and damages, and the order is as follows: (1) I order that the respondent pay to the applicant damages pursuant to section 170DB of $1029.00. This amount represents two weeks pay in lieu of notice. (2) I further order that the respondent pay to the applicant compensation in the amount of $1512.55 being overtime he would otherwise have received if he had been employed with the respondent. I consider 13 weeks overtime at the rate of $116.35 per week as reasonable. The figure of $116.35 per week is an average figure that I have calculated from exhibit A1. (3) I further order that the respondent pay to the applicant two days ordinary pay which is a total amount of $205.80 (4) I order that the respondent have 21 days in which to pay the total amount which is $2737.35. I certify that this and the preceding six (6) pages are a true copy of the reasons for decision of Judicial Registrar Fleming delivered ex tempore and revised from the transcript. Associate: Dated: 29 September 1995 Solicitors for the applicant: Ryan Carlisle Thomas Counsel appearing for the applicant: Ms J Patrick Solicitors for the respondent: Hawthorne Williams & Tait Counsel appearing for the respondent:Mr S Le Grand Date of hearing: 29 September 1995 Date of judgment: 29 September 1995