Industrial Relations Commission of New South Wales CITATION: CFMEU (on behalf of) Justin Sutherland and Kevin Bowden [2005] NSWIRComm 220 Construction, Forestry, Mining and Energy Union (on behalf of ) Justin Sutherland PARTIES: K & K Bowden FILE NUMBER(S): 592 of 2005 CORAM: Grayson DP Ex parte Hearing - Employer's refusal to attend - Victimisation claim - Dismissal - Unpaid/underpaid entitlements - Building industry - Apprenticeship trainee- Small claim application granted - Claim for relief from victimisation granted - Application for costs granted - Orders made CATCHWORDS: HEARING DATES: 06/17/2005 EXTEMPORE JUDGMENT DATE: 06/17/2005 Leah Charlson - Legal Officer LEGAL REPRESENTATIVES: CFMEU Kevin Bowden JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Grayson DP 17 June 2005 Matter No IRC 592 of 2005 CFMEU (on behalf of) Justin Sutherland and Kevin and Kama Bowden Application by Construction, Forestry, Mining and Energy Union (on behalf of its member Justin Sutherland) for relief from victimisation under section 213 of the Industrial Relations Act 1996. JUDGMENT [2005] NSWIRComm 220 1 The applicant Union on behalf of its member, Mr Sutherland, applies for relief from victimisation under section 213 of the Industrial Relations Act 1996. The Union, again on behalf of its member, brings a further claim namely, a small claim under section 379 of the Act. 2 The Union relies upon the evidence given by Mr Sutherland, both in affidavit and supplementary oral form, and further upon the material contained in the affidavit of Ms Charlson, who appears for the CFMEU today. 3 It is clear to the Commission, and in the absence of evidence to the contrary the Commission is compelled to accept without reservation the proposition for which the union contends and that is, in essence, that Mr Sutherland's employment was brought to a summary end by his employer, Mr Bowden, on 17 January 2005 as a result of Mr Sutherland pursuing his entitlements under the relevant industrial instrument, namely, The Building and Construction Industry (State) Award. I am comfortably satisfied on the evidence given that Mr Sutherland was dismissed in those circumstances. 4 The union has taken the Commission to various decisions which are helpfully set out in the written submissions prepared by Ms Charlson and need not be recited for the purpose of these ex tempore reasons. It would suffice to say, however, that as was observed by Commissioner Murphy in Birchall v Abacus Shade Structures et cetera [2005] 1041 NSWIRC that dismissal of a worker in circumstances where the worker has sought no more or less than his or her lawful entitlement constitutes one of the worse reasons for dismissal. 5 I therefore find that Mr Sutherland was dismissed by reason of his request for benefits to which he was entitled under the Award, thus enlivening the provisions of section 210 of the Act. In that regard the CFMEU seeks orders pursuant to section 213 subsection 2 of the Act ,in effect requiring the employer to pay the whole, or at least part, of the amount of remuneration or other financial benefits lost or foregone. 6 The evidence given by Mr Sutherland today indicates that in the period since being dismissed he was, notwithstanding his diligent quest for alternative employment, unemployed for a period of nine weeks and in the remaining period of sixteen weeks between the date of his dismissal and today he has worked as a swimming coach earning approximately $113 per week, thus incurring an ongoing loss. Mr Sutherland gave evidence today that he will commence employment in a sport and recreation traineeship next week and he expects to earn in that traineeship an amount of $284 per week thus significantly mitigating his ongoing loss. 7 The Union further contends, and as much is clear from the evidence, that Mr Sutherland should have been paid but was not paid during the period of his employment with Mr Bowden a tool allowance of $18.20 per week pursuant to clause 24 subclause 3 of the relevant Award and also a travel allowance in the order of $62.25 per week pursuant to clause 38 of the relevant Award. In addition thereto the Union contends that Mr Sutherland should have been paid but was not paid pursuant to clause 27 of the Award for rostered days off numbering six in all during the period of his employment and, finally, that Mr Sutherland should have been paid but was not paid an amount equivalent to two weeks pay on termination pursuant to clause 17 subclause 6 of the relevant Award. 8 There was some discussion in the course of the proceedings today as to whether the provision by the employer of certain tools at some stage approximately one month after Mr Sutherland was terminated may in some way reduce the employer's indebtedness with respect to the payment of a tool allowance. The Commission is not sufficiently seized of the approximate value of tools which were provided to Mr Sutherland in that way but, assuming the tools to have some value, it seems to me appropriate that the Union claim with respect to tool allowance be discounted for that reason. 9 I am comfortably satisfied that the Union has made out its case in all respects and I now order, pursuant to section 213 subsection 2 of the Act, that the respondent, Mr Bowden, pay within twenty-eight days an amount of $6,035.25, being in broad terms the aggregate of amounts to compensate Mr Sutherland for remuneration lost or foregone in the period since his dismissal and contemplating in addition to that an amount, although a modest amount with respect to ongoing or future economic loss. I say modest amount for the reasons earlier given, that the applicant has commendably obtained further employment which commences next week and that his loss is thereby significantly mitigated. 10 With respect to the small claim it seems to me clear on the evidence that there has been an underpayment by this employer, or a non-payment as the case may be, of the allowances claimed and the amounts claimed with respect to RDOs and termination. The Commission therefore orders, pursuant to section 380 of the Act, Mr Bowden to pay within twenty-eight days an amount of $400 by way of unpaid tool allowances, again having regard to and approximating the value of the tools ultimately provided to and residing in Mr Sutherland's possession. 11 The Commission further orders, pursuant to section 380 of the Act, that Mr Bowden pay within twenty-eight days an amount of $1,680.75 by way of unpaid travel allowances. 12 The Commission further orders that Mr Bowden pay within twenty-eight days an amount of $246.27 by way of underpayment for RDOs. 13 The Commission further orders that Mr Bowden pay, pursuant to section 380 of the Act, within twenty-eight days an amount of $449.92 by way of its obligation under clause 17 subclause 6 termination of employment of the relevant Award. 14 The CFMEU brings an application for costs under section 181 subsection 2(d) of the Act and the Commission orders that Mr Bowden pay such costs as may be agreed or assessed within twenty-eight days. oOo 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.