Christopher Stewart Daw v Frugalis Pty Ltd [1995] IRCA 673

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - whether repudiation of contract of employment - regular daily hire - failure of employee to offer himself for work - no termination at initiative of employer INDUSTRIAL RELATIONS ACT 1988 , ss170EA Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd Full Court, IRCA, 28.11.95 unreported, 11 Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 CHRISTOPHER STEWART DAW -v- FRUGALIS PTY LTD QI 95/1078 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 14 DECEMBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1078 QUEENSLAND DISTRICT REGISTRY BETWEEN: CHRISTOPHER STEWART DAW Applicant AND: FRUGALIS PTY LTD Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 14 DECEMBER 1995 MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1078 QUEENSLAND DISTRICT REGISTRY BETWEEN: CHRISTOPHER STEWART DAW Applicant AND: FRUGALIS PTY LTD Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 14 DECEMBER 1995 REASONS FOR JUDGMENT Background. The applicant, now aged 34, was employed as a boner on the day shift at the respondent's Grantham, Queensland abattoir. Apart from a break in his employment of about 5 months, he had been employed by the respondent for 11 years, as at February 1995. The terms and conditions of the applicant's employment were governed by the Federal Meat Processing (Queensland) Industrial Award 1988 ("the award"). Clause 4 thereof provides (a)(i) Employees, except for those specifically engaged as casuals, shall be engaged as regular daily employees, or regular part-time daily employees. The applicant had been a regular daily employee, from 7 March 1985 onwards. Clause 4 of the award goes on to state: (b) A regular daily employee shall be employed by the day or shift; and without prejudice to the provisions of this Award as to payment for award holidays, sick leave, and annual leave, his or her employment shall terminate at the end of each day or shift on which he or she is employed. (c) Notwithstanding the termination of his or her employment at the end of each day or shift, the engagement of a regular daily employee shall continue and he (sic)shall remain a regular daily employee until his or her engagement as such is terminated as herein prescribed....... d) In consideration of the rights conferred on regular daily employees by this Award, a regular daily employee shall attend and offer himself or herself for employment at a place specified by the employer at the normal starting time on each ordinary working day unless notified that on a particular day he or she is not required to attend....... Findings In the first week of February 1995, the applicant and other boners were dealing with excessively dirty meat. This required extra trimming, which meant the boners were kept waiting. This in turn meant a decrease in their earnings, they being paid on the basis of the work they actually performed. They approached the respondent to be paid for waiting time, but an impasse was reached. This then was the background to events which unfolded in the week commencing 6 February 1995. On Tuesday 7 February 1995, the applicant started work at 6.30 am. The problem with dirty meat persisted. The boners were complaining loudly. A consultant to the respondent, a Maurice Doube, told them to shut up. When some did not quieten, Mr Doube had the Department of Primary Industries officers collect up the stamps used to stamp meat, and take them away. This meant the men could not any longer work, because the meat had to be stamped before it was packed. The workers left their place of work, and went to the amenities area. Later Mr Doube and other management staff came to the amenities area. He asked the workers to restart work. They queried him about payment for waiting time. Mr Doube suspended one of their number, a Mr Hoger, for two weeks. Union delegates intervened and asked the workers to go back to work. They did, continuing for the rest of their shift. No agreement had been reached about the payment of waiting time. The applicant turned up for work at about 6.15 am the next day, Wednesday, 8 February 1995. Beforehand, he had been told that one of the union delegates, a Mr Barton, also had been suspended form work the previous afternoon. The applicant thought that other workers might be about to suffer the same fate. A mass meeting of workers (about 80 to 90 people) then took place which voted not to start work until Mr Barton's suspension was lifted. After 6.30 am, the normal starting time for the day shift, Mr Doube came to the meeting and asked the workers to start work. He was not responsive to questions from the workers about why Messrs Hoger and Barton had been suspended. Mr Doube said words to this effect: This is private property. You're employed here to come and work. If you're not going to work, then leave the premises. The applicant took this to mean that his employment had been terminated. He, with other workers, collected their gear and formed a picket-line at the entrance to the respondent's premises. While a few workers did work that day, the great majority, of both the morning and afternoon shifts, and the slaughter-floor crew, did not. The union of which the applicant was a member served notice on the respondent's solicitors at about 10.18 am on 8 February 1995 of protected action in the nature of an indefinite stoppage of work from Saturday, 11 February, at the respondent's Grantham premises. The respondent did not, at any time, close the gate to its premises, so as to effect a lock-out of its workers. It offered work to any of those who would accept it, including at the start of the afternoon shift of 8 February. Work continued to be performed at the premises, on 8 February, and subsequently. Some workers crossed the picket-line. These numbers gradually increased as the picket wore on. Perhaps 40 or 50 of those 90, or thereabouts, who attended the morning meeting of 8 February have since returned to work with the respondent. The picket lasted for 12 weeks. Work was available to the applicant at the respondent's premises in the period following 8 February 1995. The applicant did not offer himself for work with the respondent again. Being short of funds, he applied to the respondent for, and was paid, holiday pay and pro rata long-service leave on 7 April 1995. The applicant took up other employment on 28 April 1995, and has remained employed. He is content in this employment and does not seek reinstatement with the respondent. Issues The applicant's case was that his employment was terminated by Mr Doube when the workers were told to leave the premises, at the morning meeting of 8 February 1995. The respondent contends that there was no termination of the applicant's employment at the initiative of the respondent; rather, the applicant failed to offer himself for employment, from 8 February 1995 to 7 April 1995, as required by the Award. Termination of his employment occurred only when the applicant applied for, and received, his termination entitlements, on 7 April 1995. A termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship - Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd, Full Court of the Industrial Relations Court of Australia 28 November 1995, as yet unreported, 11. The applicant was mistaken in his view about the effect of Mr Doube's admonition. Before Mr Doube addressed their meeting, the workers had already voted not to start work until Mr Barton's suspension was lifted. The employment relationship came to an end on payment to the applicant of his termination entitlements. There was no termination of the applicant's employment at the initiative of his employer. Costs In anticipation of an application by the respondent for costs, I record that I am unconvinced the application was instituted vexatiously or without reasonable cause in the sense that, upon the facts known to the applicant at the time of instituting (my emphasis) the proceeding, there was no substantial prospect of success - Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264 - 5. I was impressed with the applicant's candour in giving evidence. In my view the applicant genuinely, though mistakenly, held the view that his employment had been terminated by his employer, on 8 February 1995. Given what appears to have been less than a sensitive approach by the respondent to the industrial problems which confronted it in early February 1995 (and I refer here to the actions of Mr Doube), the applicant (and his union) might reasonably have entertained the view they did about the consequences of Mr Doube's actions on the morning of 8 February 1995. I will not make any order as to costs. Order I order that the application be dismissed. I certify that this and the preceding FOUR (4) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 14 December 1995 Appearing for the Applicant: Ms F. Robinson Counsel for the Respondent: Mr Murdoch Solicitors for the Respondent: Quinn, Ryan & Scattini Date of hearing: 4 December 1995 Date of judgment: 14 December 1995