Industrial Relations Commission of New South Wales CITATION: Ferguson v Inghams Enterprises Pty Ltd. [2005] NSWIRComm 1117 APPLICANT: Mr. Richard Ferguson PARTIES: RESPONDENT: Inghams Enterprise Pty Ltd FILE NUMBER(S): 3545 of 2005 CORAM: Ritchie C Threatened dismissal Application for orders preventing termination Applicant working in a position for last ten years as a consequence of an industrial accident. Applicant believed he had ongoing employment of an indefinite nature Respondent had introduced contractors to carry out the applicant's job. CATCHWORDS: Applicant's job no longer required to be done. Applicant sought interim orders to prevent termination and for the applicant to continue to employ him in his previous job or a similiar role. Respondent stated job no longer existed and no other job available. Commision rejected draft orders ,job no longer under respondent's control and orders too imprecise. Application to proceed to hearing. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Blackadder v Ramsey Butchering Services Pty Ltd[2005] HCA 22 HEARING DATES: 07/15/2005 DATE OF JUDGMENT: 07/18/2005 Mr. Moorhouse of Counsel LEGAL REPRESENTATIVES: Mr. Moses of Counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C 18 July 2005 Matter No IRC 3545 of 2005 IN THE MATTER OF : Richard Ferguson and Inghams Enterprise Pty Ltd Application by Richard Ferguson re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 INTERIM DECISION [2005] NSWIRComm 1117 Background. 1 On 7 July 2005 Mr. Richard Ferguson (the applicant ) filed a claim for a threatened dismissal under Ch. 2 Part 6 of the Industrial Relations Act 1996 (the Act) from Inghams Enterprises Pty Limited (the respondent). 2 The application stated that the applicant commenced with the respondent on 12 August 1987 and was threatened with dismissal on 30 June 2005. 3 It was accepted by both parties that correspondence received by the applicant from the respondent dated 15 July 2005 (Ex 3) stated that the applicant will cease duty with the respondent from the close of business 19 July 2005 on the basis that his position of Weighbridge operator/gatekeeper had been made redundant. 4 The matter came before the Commission on 12 July 2005 and again on 15 July 2005 when application was made by the applicant for an interim order preventing termination by the respondent. 5 At the hearing the applicant was represented by Mr. Moorhouse of Counsel and the respondent by Mr. Moses of Counsel. Applicant's Submission 6 The applicant filed an Affidavit of Urgency (Ex. B) and gave brief evidence .He stated that on 6 December 1992 he was injured at work that resulted in the loss of his right leg below the knee. He eventually returned to work on light duties. In April 1995 he was transferred to the respondent's factory at Hoxton Park where he was appointed to the position of Weighbridge operator at the gatehouse. He worked Monday to Friday 6.00am to 2.00pm. 7 Action was taken in the Supreme Court of New South Wales claiming damages for the injury he sustained in December 1992.Correspondence was attached to his Affidavit of Urgency from the respondent (dated 20 June 1995and 7 November 1996) concerning the intention of the respondent with respect to the applicant's ongoing employment. Suitable employment was to be provided. Also attached was a Terms Of Settlement filed in the Sydney Registry of the Supreme Court that settled his action against the respondent. Point 6 of the document in hand writing was stated : It is agreed and acknowledged that the plaintiff relies upon the terms of a letter from the defendant dated 7/11/1996 in settling his claim against the defendant 8 The contents of that correspondence materially influenced the applicant to agree to a settlement by way of compromise with regard to the issue of future economic loss. He believed he had ongoing employment of an indefinite nature. 9 In June 2005 the applicant was advised by the respondent that the respondent had decided to contract out the roles of security and gate keeping in the respondent's factory outlets. Discussions took place between the applicant and his union representative and the respondent's representatives considering alternative employment. No alternative employment was offered by the respondent to the applicant. 10 The applicant sought the following Interim Order to be made by the Commission. 1. That pending the hearing and determination of the Applicant's claim for relief in relation to threatened unfair dismissal, the Respondent not terminate the employment of the Applicant. 2. That pending the hearing and determination of the Applicant's claim for relief in relation to threatened unfair dismissal ,or further order of the Commission , the Applicant be returned to the duties and roster which he was performing in the period immediately preceding 30 June 2005. 11 In reply to the respondent's submission the applicant did submit that the Commission could vary the Interim Order sought by adding to point 1 " for reasons of redundancy " and to point 2 with respect to duties "same or equivalent duties ". 12 Mr. Moorhouse provided written submissions which outlined the principles governing the granting of any interlocutory relief. That there was a serious question to be tried, that the applicant will suffer irreparable injury for which damages will not be an adequate compensation unless interlocutory relief is granted and the balance of convenience favours the granting of the interlocutory relief. 13 The applicant wishes to continue to work for the respondent. If he is unsuccessful in his application for reinstatement then the maximum he could obtain would only be six months pay. The balance of convenience lies with the applicant as if not granted then the nature and balance of any final hearing is altered significantly. Respondent's Submission. 14 Statements of Evidence were provided by Mr. J. Jones and Mr. S. Ruff. Only Mr. Ruff was required to give evidence. It was his evidence that on 30 May 2005 the respondent made a decision to contract out the security and gate keeping operations at the Hoxton Park factory. He confirmed that various options for alternative duties were canvassed with the applicant but due to his medical restrictions and or limited computer/ clerical skills no alternative duties could be found. The three other security officers all were made redundant and paid out. The applicant was advised that he would receive 52 weeks redundancy pay. 15 He advised that the position of Gatehouse/ Weighbridge assistant was created in 1995 to accommodate the applicant. 16 An outside contracting company now operated the security section of the Hoxton Park factory with 12 hour shifts operating every day of the week. The applicant's position no longer existed. 17 Mr. Moses stated that there could never have been given a life time guarantee of future employment as inferred by the applicant. The job no longer exists nor does any other appropriate alternative job. The orders sought by the applicant were too imprise and the job the applicant used to do no longer existed. If orders sought were granted then the respondent would not be able to provide work ,as per the High Court case of Blackadder v Ramsey Butchering Services Pty Ltd requires. 18 As the applicant will receive 52 weeks pay he can not state that he will be disadvantaged. Considerations and Decision. 19 Due to the circumstances of the Hearing of this urgent application and the immediacy of the proposed date of termination, this Decision has had to be given without the assistance and benefit of transcript. 20 The applicant is a long term employee of the respondent and as a consequence of a terrible accident in December 1992 has for the last ten years carried out the role of weighbridge/gatekeeper at the respondent's Hoxton Park factory. 21 That position according to the evidence of Mr. Ruff was created to accommodate the applicant and now as at 1 July 2005 it no longer exists. The responsibility for that work is now being carried out by another Company. 22 I note the competing submissions with respect to the subject of "ongoing employment" and recognise that this may well be an important part of the substantive case. 23 I have very carefully weighed the competing cases on their merits and I have concluded, on balance. that the orders as varied by the applicant should not be granted. 24 I am in agreement with Mr. Moses that the orders sought would require the Commission to direct the respondent to place the applicant back into his previous position that is no longer being controlled by the respondent. Supervision of the applicant would not exist. 25 An alternative position with the " same or equivalent duties " was not identified by Mr. Moorhouse or for that matter by anyone else . I find that the orders sought lack the necessary sphericity. 26 The Commission must be able to identify a position that will require the applicant to be gainfully employed (Blackadder v Ramsey Butchering Services Pty Ltd- [2005] HCA 22. D. RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.