Roberts and Transport Workers Union v Konway Express Pty Ltd [1996] IRCA 264

DECISION NO: 264/96 C A T C H W O R D S INDUSTRIAL LAW - timing of TERMINATION OF EMPLOYMENT brought forward by incident of CONDUCT AND PERFORMANCE where no OPPORTUNITY TO RESPOND given - VALID REASON - REDUNDANCY - OPERATIONAL REQUIREMENTS - whether DISMISSAL based on UNION MEMBERSHIP - whether HARSH UNJUST or UNREASONABLE - COMPENSATION Industrial Relations Act 1988 ss.170DE, 170DF, 170EA, 170EDA CASES: Kenefick v Australian Submarine Corporation Pty Ltd (1995) 62 IR 107 Nicolson v Heaven & Earth Galleries Pty Ltd (1994) 1 IRCR 199 MICHAEL PATRICK ROBERTS and TRANSPORT WORKERS UNION -v- KONWAY EXPRESS PTY LTD (formerly CERVARA TWENTY FOUR PTY LTD) No. VI 6231 of 1995 Before: Judicial Registrar Murphy Place: Melbourne Date: 14 June 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 6231 of 1995 B E T W E E N : MICHAEL PATRICK ROBERTS and TRANSPORT WORKERS UNION Applicants AND KONWAY EXPRESS PTY LTD (formerly CERVARA TWENTY FOUR PTY. LTD) Respondent MINUTES OF ORDERS Judicial Registrar Murphy 14 June 1996 THE COURT ORDERS: 1. That within 21 days, the respondent pay to the applicant the sum of $482.00. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 6231 of 1995 B E T W E E N : MICHAEL PATRICK ROBERTS and TRANSPORT WORKERS UNION Applicants AND KONWAY EXPRESS PTY. LTD. (formerly CERVARA TWENTY FOUR PTY LTD) Respondent Before: Judicial Registrar Murphy Place: Melbourne Date: 14 June 1996 EX-TEMPORE REASONS FOR JUDGMENT In this application for a remedy under s170EA of the Industrial Relations Act ("the Act") the issues were whether the respondent had a valid reason to terminate the first applicant's employment; whether the reason included a reason proscribed by s170DF(1)(b) of the Act, and whether the termination was otherwise harsh unjust or unreasonable. The applicant commenced employment with the respondent in June 1995 as a driver. He was employed after responding to a job advertisement. Two other drivers were employed as a result of the same advertisement around the same time. The respondent operates a fleet of trucks in Victoria as well as in other states. Over the period from September 1995 the manager of the Adelaide operation of the respondent had been seeking the re-assignment of a truck to that state. The Victorian management had been resisting this request. Around 18 November it appeared to the Victorian management that its fleet requirements were such that it was in a position to assign a truck to Adelaide. The Adelaide requirement was for a 12 tonne vehicle. There were two vehicles of this type in the Melbourne fleet, one driven by the applicant. It was decided by Mr Dipietro, the Managing Director, and Mr Wilson, the Operations Manager, that the applicant's truck would be assigned to Adelaide and that the applicant's position would be made redundant. The basis for preferring to retain the other truck and its driver was that the other driver had significantly longer service than the applicant. On Monday 20 November, the applicant arrived at work and was advised that as his truck had been re-assigned to Adelaide, his services were no longer required. He was offered three options. He could leave immediately and be paid a week in lieu of notice, he could work out the one week's notice period, or he could purchase a prime mover vehicle to be a yard truck and be retained on that basis by the respondent as a sub-contractor. Both Mr Dipietro and Mr Wilson said that at the time of this conversation there were no other jobs available to do in Melbourne. A point of contention in the evidence was whether the applicant proposed to Mr Dipietro that he go to Adelaide to drive his truck over there. Mr Dipietro denied that this was raised. Mr Wilson said he was pretty sure it was not raised in the conversation. The applicant maintained that he did raise this option and that Mr Dipietro said he would think about it over night. The applicant claimed that the following day Mr Dipietro said it was not possible that this occur and he would not expect an employee to relocate interstate. After having considered the evidence of all witnesses on this point, I prefer to accept the respondent's version of this conversation and find that the option of the applicant moving to Adelaide was not raised in that conversation. Later that week Mr Wilson made inquiries about a rental truck. He had the feeling that there might be work available for the respondent in the lead-up to the Christmas period. On Thursday or Friday of that week the availability of a rental truck was confirmed. Mr Wilson then discussed with Mr Dipietro whether to hire the truck and a meeting was held where the applicant was offered the option of driving the rental truck while it was available to the respondent. The applicant agreed. There was conflict in the evidence as to whether the applicant was offered work until at least Christmas as he claimed, or, as stated by the respondent's witnesses, whether he was offered work just for the period that the respondent had work available to utilise a rental vehicle. On this issue I prefer to accept the respondent's witnesses that the offer of work was for a limited period not beyond Christmas whilst the respondent could utilise the services of a rental vehicle. The vehicle arrived the following Monday and for the next two weeks the respondent drove the vehicle. It was hired on a daily basis. On 8 December the applicant returned from a delivery with a spillage in his vehicle. Mr Dipietro observed the spillage. Without giving the applicant any opportunity to explain the circumstances of the spillage, he ordered that Mr Wilson terminate his services. The rental truck was cleaned out and returned to the rental company the next day. The applicant was paid his outstanding entitlements and left the respondent's employ on 8 December. Did the respondent have a valid reason to terminate the applicant's services? It is necessary to properly characterise what happened here. I find that the decision to terminate the applicant's employment was taken on 20 November. He was given a week's notice at that point. He agreed to work out the notice period. I am satisfied that subsequently on 23 or 24 November the parties mutually agreed to extend the notice period to a further date to be determined by the respondent having regard to its operational requirements. I am satisfied that at no time did Mr Dipietro advise the applicant that the notice of termination given on 20 November was rescinded. It is now necessary to consider whether the respondent had a valid reason to terminate the applicant's employment. I am satisfied that the respondent has discharged its onus of proof that consequent upon the re-assignment of a vehicle in its fleet to Adelaide, it no longer required the applicant's services. The evidence that no replacement vehicle has been retained is some ex post facto support for the fact that the termination of the applicant's services was a "logical response" to the respondent's operational requirements: Kenefick v Australian Submarine Corporation Pty Ltd (1995) 62 IR 107, 116. I am satisfied that given that the respondent had only four trucks and five drivers in Melbourne, and the evidence of the two respondent's witnesses that there were no other jobs available in Melbourne, the termination of the applicant's services was a decision based on its operational requirements and was a logical response to its labour surplus. I further reject the submission that the applicant's union membership or activities played any part in the respondent's reason for termination. It is significant that the applicant was offered both the option of a position of a yard truck retainer and the rental driver position. These actions are inconsistent with the respondent wanting to get rid of the applicant because of his union membership or activities. I am satisfied therefore that the respondent has discharged its onus of proof under s170EDA(2) that a reason proscribed under s170DF(1)(b) was not a reason for the termination. I am further satisfied that the incident on 8 December was not a factor in the decision to terminate the applicant's services, as distinct from the timing of the cessation of his services. The 8 December incident brought forward the ending of the employment relationship, but it was not the reason that the applicant's services were terminated. That reason was the respondent's operational requirements. Was the termination harsh, unjust or unreasonable? It was submitted that this termination of employment was harsh unjust or unreasonable. The applicant's union was not consulted but there was no evidence that the applicant had advised the respondent of his union membership. The applicant was to a limited degree consulted about the redundancy of his services. He was however, not given the opportunity to have an input into the selection criteria. I am satisfied that objective selection criteria were used in any event. The failure to consult with the applicant will not necessarily mean that the termination is to be characterised as infringing s170DE(2) of the Act. Mr Dipietro gave evidence that the respondent, when it considered purchasing a replacement truck, contemplated alternatives to redundancy. Further, the applicant was given the option of working out his notice period. He was also given the opportunity to purchase a vehicle and be retained as a sub-contractor. In the context of this small workplace, particularly given the evidence, which I accept, of a work down-turn, I am satisfied that the obligations of the respondent to seek to mitigate the effects of the redundancy have been satisfied here. Further, I am satisfied that the respondent is entitled to rely upon the short term engagement of the applicant as a driver of the rental truck. This I am satisfied extended the notice period from, in effect, one week to three weeks. There is one aspect of the termination here which can be characterised as harsh, unjust or unreasonable. This was the summary termination of the applicant on 8 December. Mr Dipietro in his evidence said that if the applicant was a company employee at the time, driving a company truck, then the matter would have been the subject of a written warning. Here the applicant was not given a written warning and he was not given any opportunity to explain his position as to why the incident occurred. Had he had that opportunity, I am satisfied that there was a prospect that he may have continued his employment as a driver of the rental truck until Christmas. He may have been able to continue for a further week at least in the employment of the respondent. There was no evidence that the truck, but for the incident, was going to be returned to the rental company the next day. It follows from this that it is proper to characterise the respondent's termination of the applicant's employment as in breach of s170DE(2) of the Act because of its failure to accord any procedural fairness associated with the 8 December incident. Compensation. The parties are agreed here that reinstatement is impracticable. In Nicolson v Heaven & Earth Galleries Pty Ltd (1994) 1 IRCR 199 at 212, Wilcox CJ said that in determining compensation the court should have regard to what would have happened had the termination of employment not occurred. Here, I am satisfied that it is unlikely that the applicant's employment would have endured beyond 25 December 1995. I am further satisfied that there was a likelihood that the employment would have continued for another week. Having regard to these considerations, in all the circumstances, there should be an order for compensation based on one week's wages, being the sum of $482.00. MINUTES OF ORDERS THE COURT ORDERS: 1. That within 21 days, the respondent pay to the applicant the sum of $482.00. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 14 June 1996 Representative for the Applicant: Transport Workers Union Appearing for the Applicant: Mr Moore Solicitors for the Respondent: VECCI Appearing for the Respondent: Mr R Ironmonger Date of hearing: 14 June 1996 Date of judgment: 14 June 1996