SKELE -v- KITCHENER MINING NL [1997] IRCA 167

DECISION NO:167/97 CATCHWORDS INDUSTRIAL LAW -. Was TERMINATION OF EMPLOYMENT at the initiative of the employer - complaint of UNLAWFUL TERMINATION - INJURY Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) Ss 170EA SKELE -v- KITCHENER MINING NL WI 1486 of 1996 Before : BOON JR Place : PERTH Date of Judgment : 16 MAY 1997

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WI 1486 of 1996 B E T W E E N: JENNIFER MAUREEN SKELE Applicant A N D: KITCHENER MINING NL Respondent MINUTE OF ORDERS 16 MAY 1997 PERTH BOON JR THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WI 1486 of 1996 B E T W E E N: JENNIFER MAUREEN SKELE Applicant A N D: KITCHENER MINING NL Respondent Before: Judicial Registrar Boon Place: Perth Date: 16 May 1997 REASONS FOR JUDGMENT INTRODUCTION This is an application pursuant to section 170EA of the Workplace Relations Act 1996 (formerly the Industrial Relations Act 1988). The applicant, Ms Skele, is seeking payment of compensation arising out of the alleged termination of her employment by the respondent, Kitchener Mining NL. This matter proceeded to a hearing on 26 February 1997. On that date counsel for the respondent, Mr M Hawkins, foreshadowed that after hearing some of the evidence he would make an application for an adjournment as one of the respondent's witnesses was taken ill and was in hospital. By consent, the parties agreed that this Court should determine a threshold question of jurisdiction, namely, whether Ms Skele was an employee engaged under a contract of employment for a specified period of time within the meaning of Regulation 30B(1)(aa) of the Workplace Relations Regulations. On 5 March 1997 I handed down a decision to the effect that Ms Skele was not an employee engaged under a contract of employment for a specified period of time within the meaning of that regulation. The Court then proceeded to hear further evidence from the respondent's witnesses at later dates. The primary issue in this matter is whether or not there was a termination of Ms Skele's employment at the initiative of her employer. On behalf of Ms Skele it was argued that this Court may infer from acts or omissions on behalf of the respondent that Ms Skele's employment was so terminated. The respondent denies that it initiated the termination of Ms Skele's employment. BACKGROUND FACTS At all relevant times Ms Skele was employed by the respondent at its mine at the Bamboo Creek mine site, near Marble Bar, in the North West of Western Australia. Ms Skele was first employed in around 1993 as a sample prepper in the laboratory. After three weeks, she was promoted to the position of fire assayer in which she sorted samples and determined the amount of gold in grams per ton for the mine. Ms Skele was employed pursuant to a series of three-month written rolling contracts of employment. It is common ground that the respondent's employees each signed similar three-month contracts. The employees would each take two weeks of unpaid leave before commencing a new term of employment under a written renewal of the original contract. The Court heard evidence from Mr Anthony Roberts, the former registered operations manager of the respondent at the Bamboo Creek mine site, and Michael Povey, the former general manager of the respondent, about this practice. The evidence was that the respondent had been in financial difficulties for some years before the mine at Bamboo Creek finally closed down in early 1996. Mr Povey gave evidence that the practice of using three-month written contracts for employees had been introduced because the mine had a high chance of being closed in the foreseeable future. It was only because the chairman of Kitchener Mines had poured his own money into the company that it had kept going at that site. Ms Skele signed a written contract dated 15 March 1995. It stated that the term of contract was from 15 March 1995 to 18 June 1995. On 11 July 1995 Ms Skele signed a contract renewal which allowed for a term of contract of 11 July 1995 to 10 October 1995. It is common ground that on 30 July 1995 Ms Skele was involved in a serious traffic accident. Ms Skele herself was driving a motor vehicle which had three other employees of the respondent as passengers. Ms Skele herself was seriously injured and one of the three passengers was killed as a result of the accident. Ms Skele was evacuated from the mine site and was taken to hospital in Port Hedland. After she was discharged from hospital she returned to Perth to convalesce. A medical certificate which was tendered in evidence showed that Ms Skele suffered head injuries as a result of that accident. Ms Skele's own evidence was that she had a shattered wrist which required the insertion of a pin and plate. She also had facial injuries with a depressed skull fracture and very bad scarring. Ms Skele's evidence was that about a week after the accident, her daughter went to the Bamboo Creek mine site and collected her clothes. Her daughter then returned to Port Hedland to wait for Ms Skele to be discharged from hospital on 8 August 1995. Ms Skele continued to receive medical treatment in Perth. Ms Skele's evidence was that when she arrived in Perth, on or about 10 August 1995, she telephoned Mr Povey to ask if her job was secure, and that he assured her that there was not a problem. She said she was told by Mr Povey that as soon as she was ready or fit for work, she should call the mine and they would arrange for transportation. Mr Povey's evidence was that soon after the accident, between 8 and 10 August 1995, Ms Skele contacted him and inquired about coming back to the mine site. Mr Povey said that he assured Ms Skele that her job was open but said that he had no conversation with her regarding the actual arrangements. Mr Povey said that it depended generally on Ms Skele's health and when she would be fit for work. Ms Skele said that about a week after this conversation, she spoke to Karen Goralski, who was the mill superintendent and her immediate supervisor. Ms Skele said that she told Ms Goralski that she was much better and that she would probably be starting at the end of the month. Ms Goralski said, according to Ms Skele, that as far as she knew everything was fine for her return as soon as she was well. Ms Skele's evidence was that around 6 September 1995 her doctor cleared her for work. Ms Skele said in her evidence that she continually kept ringing the mine from then on. She said that she probably rang at least once per week. She said that she spoke to Ms Ann Taranaki, an employee at the mine, to ask if she could speak to Tony Roberts or Mike Povey but was told that they could not be contacted or they were not there or Mr Roberts was out at the bore fields. Ms Skele said she was never put through to either Mr Povey or Mr Roberts. Ms Skele's evidence was that when she was told this by Ms Taranaki she said that she would like to return to the mine and asked if Mr Roberts or Mr Povey could call her back regarding her position and returning to the mine site. Ms Skele's evidence was that the original conversations were from her daughter's house and the first lot of calls, up to about the middle of September, were from her daughter's telephone. Subsequent telephone conversations were from Ms Skele's own residence. On behalf of Ms Skele, the telephone accounts from her own residence and that of her daughter, were tendered in evidence. Ms Skele's evidence was that the phone number 91761101 went directly to the office at the mine site. She said that the number 91761005 went to the dry mess and other sections in the mine. Ms Skele's evidence in relation to the numbers was somewhat confusing. At one stage she said 005 went through to the dry mess and then later she said 105 went to the dry mess. The telephone accounts from Ms Skele's daughter's residence showed that after 8 August 1995 telephone calls were made to the 091761101 number on 8 August, 10 August and 4 September 1995. There was one phone call to the 091761105 from Ms Skele's daughter's residence on 14 August 1995. Ms Skele's own telephone account showed no telephone calls to the 91761101 number. There was a telephone call to the 091761005 number on 3 October only. There were telephone calls to number 91761105 at Marble Bar on 25 November and 7 December 1995. There were calls to another Marble Bar number being 91761107 on 18 October and 7 December 1995. Mr Roberts' evidence was that after office hours, the 761101 number was switched through to his home and the 761105 number was switched through to the public call box which was situated outside the dry mess at Bamboo Creek. He said that the 1101 and 1105 numbers were the only two that went to the mine site at Bamboo Creek. Ms Skele said that she also made calls to Marble Bar to the police station and to her friend, Helen Mitchell, from the Department of Mineral and Energy. Ms Skele could not say what the respective telephone numbers for those people were. In view of the conflicting evidence from Ms Skele about the telephone numbers at the mine site, I accept Mr Roberts' evidence that the only numbers which went through directly to the mine site were the 1101 and 1105 numbers. The telephone accounts for the period from early September when Ms Skele was certified fit to return to work showed that she made telephone calls to the 1101 number only on 4 September, and to the 1105 number on 25 November and 7 December 1995. Given Ms Skele's evidence that she also spoke to other people at Marble Bar over those few months, it does not appear to me that the telephone accounts support her evidence that she often rang the mine site to inquire about returning to work. Mr Povey and Mr Roberts both gave evidence that they received no messages to ring Ms Skele over this period. Mr Povey, however, said that he was often not at the Bamboo Creek mine site because he was based in Melbourne. Mr Roberts said that they had a system for relaying messages to him and said that if he had received a message to ring Ms Skele he would have returned the phone call. Ms Skele's evidence was that on 18 October 1995 she telephoned Ms Goralski through the telephone in the dry mess and left a message for her to call her back reverse charges. Karen Goralski then telephoned her by reverse charges. The telephone records showed that there was a reverse charge call on 18 October 1995 at 9:32 pm. Ms Goralski's evidence, however, was that she left the mine site between 15 and 20 August 1995 and did not return. Ms Goralski denied ever making a reverse charge telephone call to Ms Skele. She said that Ms Skele rang her just once after the accident. The telephone call occurred in the late morning. Ms Goralski said that she talked to Ms Skele and her daughter about how everything was going with her after the accident. Ms Goralski said that it was just general chitchat. Ms Skele then said that she would come back to work when she felt right and appeared quite happy with the situation. Although Ms Skele's evidence was that Ms Taranaki was working on the switchboard and that she spoke to her on several occasions in attempts to contact Mr Povey or Ms Roberts, Ms Taranaki's evidence was that she was employed as an administrative officer and was never employed as a switchboard operator. Very occasionally she answered the telephone but she avoided doing so. Ms Taranaki said that she recalled a telephone conversation with Ms Skele during which Ms Skele told her that she realised there were some people up on the site who were blaming her for the death of the passenger of her vehicle. Ms Taranaki said that she told Ms Skele that that was not so, that there might have one or two people, but in general everyone was supportive of Ms Skele. Ms Taranaki said that she thought in general she just sympathised with Ms Skele. She could not recall any discussion about Ms Skele's return to work but said that that would not have been discussed with her because she had nothing to do with that part of Ms Skele's employment. Ms Taranaki said that she could recall only one telephone conversation with Ms Skele after the accident. Ms Taranaki said that she was pretty sure she only spoke to Ms Skele once on the phone. She said if she had been asked to leave a message, she definitely would have left one for Mr Roberts. THE CREDIBILITY OF THE WITNESSES There was nothing about the demeanour of any of the witnesses, including Ms Skele, which caused me to question their credibility. Because of the passage of time, it is quite possible that the recollections of the witnesses are not as strong as they would otherwise be. The application in this matter was filed with the Australian Industrial Relations Commission in May 1996. Ms Skele carries the burden of proving that there was a termination at the initiative of the employer. It is my view that she has not discharged that burden. In the first place, each of the respondent's witnesses gave evidence which was contrary to the evidence of Ms Skele. Secondly, although the telephone records show that some telephone calls were made to Marble Bar in the August to December 1995 period, they do not support Ms Skele's allegations that she made many telephone calls to Ms Taranaki and Ms Goralski over the question of her return to the mine. Thirdly, Ms Goralski gave evidence that she left the mine site between 15 and 20 August 1995, well before Ms Skele was certified fit to return to work. Finally, the evidence was that Ms Skele was a good worker. On behalf of Ms Skele it was suggested that this Court should infer that the employer had terminated her employment to avoid any problems relating to ill feeling about the death of one of the workers at the site. It is my view that there is insufficient evidence to support this proposition. Even if I had accepted Ms Skele's evidence in relation to the telephone calls she made to the Bamboo Creek mine site, I consider it unlikely that the omission of her former employer to return the telephone messages would amount to a termination at the initiative of the employer within the meaning of those words in the Act. Ms Skele's case may have been stronger if she had written a letter to her former employer seeking to return to work on the basis that she had fully recovered. In this case, however, Ms Skele did not write to Kitchener Mines at all. CONCLUSION In conclusion, I find on the balance of probabilities that there was no termination at the initiative of the employer. In these circumstances, this Court has no jurisdiction to determine the claim and Ms Skele's application must fail. The order is that the application be dismissed.