Amos v Kawana Engineering Pty Ltd [1996] IRCA 231

DECISION NO: 231/96 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - WHETHER TERMINATION OR RESIGNATION - PROCEDURAL FAIRNESS INDUSTRIAL RELATIONS ACT 1988 , s170EA, 170DC, 170DE Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd Full Court of IRCA, 28.11.95, unreported DENIS ARTHUR AMOS -v- KAWANA ENGINEERING PTY LTD QI 95/1335 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 30 May 1996

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1335 QUEENSLAND DISTRICT REGISTRY BETWEEN: DENIS ARTHUR AMOS Applicant AND: KAWANA ENGINEERING PTY LTD Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 30 MAY 1996 THE COURT ORDERS THAT: 1. The application be allowed. 2. The respondent pay to the applicant the sum of $3250 within 14 days of today. 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 95/1335 QUEENSLAND DISTRICT REGISTRY BETWEEN: DENIS ARTHUR AMOS Applicant AND: KAWANA ENGINEERING PTY LTD Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 30 MAY 1996 REASONS FOR JUDGMENT Background The applicant is now aged 48, having been born on 25 March 1948. He is a fitter and turner by trade. The respondent operates a steel fabrication business at Caloundra, on the Sunshine Coast. It employs about 30 people. On 29 July 1995, the applicant answered an advertisement placed by the respondent in a local newspaper for a workshop supervisor. After interview, he was selected for the position, commencing on 7 August 1995, on the day shift, on a salary of $27,000 gross per annum. After four weeks in the position, the applicant's salary was increased to slightly over $30,000 gross per annum. On 22 September 1995 the respondent's general manager, Mr Campbell, spoke to the applicant. Mr Campbell told him that one of the respondent's directors, a Mr Dore had instructed him (Mr Campbell) to tell the applicant that he had the option of either taking up a position on the tools on the factory floor, or leaving the respondent's employment. The former was, undoubtedly, a demotion. The applicant chose not to accept it, and finished up at the end of that day. Mr Campbell also told the applicant that Mr Dore thought the applicant was unsuitable for the position of workshop supervisor. No particulars were provided of his alleged unsuitability. Issues Both parties were unrepresented at trial. The respondent appeared to assert that the applicant had resigned (despite being paid in lieu of notice). In other words, there was no termination of the applicant's employment at the initiative of the respondent. I reject this submission. I am satisfied that the action of the respondent, as evidenced in Mr Campbell's conversation with the applicant on 22 September, was the principal contributing factor which led to the termination of the employment relationship - Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd, Full Court of Industrial Relations Court of Australia, 28 November 1995, unreported. The respondent did not contend that the applicant had been given any opportunity to defend himself against allegations relating to his conduct or performance as an employee. In evidence, Mr Dore said that the applicant was never informed of his "alleged" shortcomings as an employee, because he (Mr Dore) did not want to embarrass the applicant. The termination of the applicant's employment was in breach of para 170DC(a) of the Industrial Relations Act 1988. I am not satisfied that the respondent has proved that it had a valid reason or reasons connected with the applicant's capacity or conduct for the termination. Mr Dore gave some vague evidence about problems on the factory floor which he attributed to the applicant. I thought the applicant was rather convincing in his refutation of Mr Dore's suggestions of his shortcomings. It is more than curious that the reason the respondent gave for the applicant's termination in the Employment Separation Certificate provided to him was "Shortage of work." I prefer the applicant's evidence to that of the respondent. The respondent is in breach of subsection 170DE(1) of the Act. Remedy It was apparent to me that the applicant and Mr Dore had quite different views about the way in which the workshop ought to be run. While the applicant sought reinstatement, I consider it is impracticable. It seems to me that a resumption of the employment relationship would lead almost inevitably to a clash or clashes between the two about management on the factory floor. I am not confident, having observed Mr Dore, that such differences could be resolved deftly and with assured touch on his part in the future. I turn to compensation. Despite rather sporadic work since termination, principally as a steel fabricator and erector on building sites, the applicant's remuneration to date, after expenses, totals about $13,000. It is now about eight months since termination. On the evidence before me, actual remuneration in the six months subsequent to termination is about $9750. I arrive at appropriate compensation by discounting the difference between what the applicant might have earned over the six months following termination and his actual remuneration in that period. I do so on account of his relatively short period of employment with the respondent prior to termination, and the differences to which I have earlier made reference between Mr Dore and the applicant as to the running of the workshop. After taking into account the one week's pay in lieu of notice, I assess compensation in the sum of $3250. Generally Mr Dore conducted the respondent's case, and gave evidence, in an odd, detached fashion. He seemed unaware of any of the relevant requirements of the Act which impinge on employment. His company is an employer of a not insignificant number of employees. It would be foolhardy on his part that he not acquaint himself soon with the requirements of the legislation (and its successor, when enacted). Orders I order: (1) That the application be allowed; (2) That the respondent pay to the applicant the sum of $3250 within 14 days of today. I certify that this and the preceding three (3) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 30 May 1996 Appearing for the Applicant: In person Appearing for the Respondent: Mr Dore (a director) Date of hearing: 17 May 1996 Date of judgment: 30 May 1996