Industrial Relations Commission of New South Wales CITATION : Blum v Global Vision [2001] NSWIRComm 291 PARTIES : Peter Blum Global Vision International Pty Ltd FILE NUMBER: IRC 3993 of 2001 CORAM: Harrison DP Application for relief from unfair dismissal - conclusion of casual engagement - lack of work CATCHWORDS : Held - termination not harsh, reasonable or unjust - application refused LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 10/30/2001 DATE OF JUDGMENT: 11/16/2001 APPLICANT Mr Peter Blum LEGAL REPRESENTATIVES: RESPONDENT Ms P Nair Employers First JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 16 November 2001 Matter No IRC 3993 of 2001 PETER BLUM & GLOBAL VISION INTERNATIONAL PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2001] NSWIRComm291 1 This matter was subject to arbitration proceedings at Murwillumbah on 30 October 2001 consequent upon unsuccessful attempts at conciliation by both McKenna C and the Commission as presently constituted. 2 Mr Peter Blum, the applicant, appeared on his own behalf. Ms P Nair of Employers First appeared on behalf of Global Vision International Pty Ltd ('the respondent'), with Mr Robert Rubens (aka Kanan Alexander). 3 Mr Blum provided an affidavit of evidence (ex 1) and was subject to cross examination by Ms Nair. 4 Ms Nair brought evidence from Mr Rubens, owner and Director of the respondent; and Mr A Snowdon, contracted by the respondent to coordinate marketing and promotional functions of the respondent's products, inclusive of two web sites. THE EVIDENCE 5 The evidence is that the applicant was engaged by the respondent on or about 15 May 2000 until 25 May 2001 as a casual employee working variable hours each week, ranging from a minimum of 9 hours in the week of 2 June 2000, to a maximum of 32 ½ hours in the week of 15 March 2001. The hours worked each week were different 6 The applicant was initially engaged to provide technical support to the respondent's computer system, which developed to the upgrading and maintenance of computer equipment, leading to involvement in internet marketing and the development of an internet web site. 7 Employment in the initial period appears on the evidence to have been uneventful, mutually advantageous and satisfactory. 8 Mr Snowdon commenced working for the respondent from 9 October 2000, primarily responsible for internet marketing. There was some initial friction between the applicant and Mr Snowdon concerning delineation and overlap of duties, and functions required of them. This was resolved; the evidence being that the applicant and Mr Snowdon developed a friendly relationship which continues. 9 The applicant described the later period of employment with the respondent in the following terms (para 4, ex 1): "Following a major equipment failure I was called in to a meeting on a Saturday in late January with the employer and Alan Snowden. The employer stated he wanted me to come in to work on a daily basis to avoid the delay that occurred during the week. The meeting was to negotiate a new work arrangements. I had previously been working irregular hours doing much of the web site development from home in my own time and unpaid. I readily agreed to coming in on a daily basis as this meant I would get paid for the work I did. It was agreed that I would not need to come in full time as I was a single father so a verbal Part Time Work Agreement was agreed to where I would be able to work irregular hours to accommodate my responsibilities to my children so long as I came in for at least two hours each day to ensure the technical support was available on a daily basis. I was also told I would be given a work agreement and job description in writing - this never eventuated even after repeated requests. During my employment I was always led to believe my work was appreciated and my presence was definitely needed on a daily basis to ensure the business did not suffer due to technical problems, I was led to believe I had permanent part-time employment following verbal inquiries on numerous occasions so I undertook an $8,000 commitment, to first buy a computer to assist with my work and later a reliable vehicle. At no time was I ever given any indication there would be a reduction in work or any changes to the agreed upon arrangement until 4.50 pm Friday 25/5/2001. At no time was I offered alternative work or asked if I was capable of taking on alternative tasks. At not time was any disciplinary action ever taken or needed." 10 The respondent denies that there was ever an arrangement for part time employment, which he supports by reference to the hours worked and wages records contained within his affidavit of evidence (ex 2) which describes continued variable casual engagement. 11 Toward the end of May 2001 development of a particular web site was near completion, the evidence being that it required perhaps a day or two to complete; however, this work could not be done until Mr Snowdon had completed some associated and related tasks of apparently uncertain duration. 12 The applicant's evidence is that on 25 May 2001 he was advised by Mr Rubens that he was no longer required to attend on a daily basis and he would called when required. The applicant regarded this as a termination of his employment. 13 This prompted an exchange between the parties much of which is denied by Mr Rubens. 14 During the course of this exchange the applicant maintained that he was being dismissed on the basis that Mr Rubens consistently restated that he had no work for him. Mr Ruben's assertion is that he put to the applicant that he had no work at the present time, but would continue to call the applicant as required, which he deposed the applicant was not prepared to accept. Mr Rubens then presumed that the applicant had no further wish to work for him as Mr Rubens would not guarantee a minimum engagement. 15 A separation certificate was issued with which the applicant took exception on the basis that it incorrectly stated the dates of engagement; and that the applicant had left of his own accord. The evidence of the applicant is that he objected to this, Mr Rubens agreed to amend the document and consequently the applicant attended upon Mr Rubens residence on the evening of 1 June 2001. 16 Mr Rubens asserts that there was a further discussion between himself and the applicant in which he reiterated that casual, on-call work would remain available to the extent required; and that the applicant further rejected this arrangement on the basis that he was not prepared to work piecemeal hours and the work available to him was insufficient to meet his financial needs. 17 The applicant denied this exchange took place, asserting that he at no time sought a minimum guarantee. 18 It is the applicant's evidence that the first mention of a minimum payment emerged in the settlement proposition of a compensation payment at the rate of 20 hours per week, which he put to the respondent following initial conciliation attempts before McKenna C. 19 The evidence of the respondent is that he advertised and obtained a replacement on-call casual to provide technical support, and that he had needed to call for that support on only 11 occasions since June 2001. SUBMISSIONS 20 The applicant submitted that the Commission held jurisdiction on the grounds that he had worked as a casual employee in excess of 12 months for the respondent. The applicant submitted that termination of his employment was harsh, unreasonable and unjust as it had come without warning or consultation; and that the argument of lack of work held no substance. 21 The applicant submitted that the evidence of Mr Rubens should not be accepted. He further submitted that the termination of his employment was harsh as it had reduced his financial state to the point where is obliged to sell his residence and relocate to a capital city, which will severely restrict access to his son in respect to whom he has custodial rights. 22 Ms Nair submitted that the termination of the applicant's engagement was the consequence of a genuine downturn in work and the conclusion of a specific project with which the applicant had been engaged. 23 Ms Nair put that on any version of events there was no prospect of ongoing employment for the applicant, emphasised by the minimal on-call requirement for technical support deposed by Mr Rubens. CONCLUSION 24 The termination of the applicant's employment is surrounded by some serious and unfortunate misunderstandings of the availability of ongoing work of a casual nature and the attitude of both parties towards each other's circumstances. 25 Distilled to the gravamen of the issue, i.e the availability of work, the minimal requirement for on-call casual support is inescapable. Whilst termination of employment clearly has consequences for the applicant which are harsh, eleven separate engagements in five months, it must be concluded, would have delivered a small outcome. 26 Whilst is it easy to have sympathy for the applicant in these circumstances, the termination of employment does not fall within the definition of harsh, unreasonable and unjust as found in Part 6, Chapter 2 of the Act. 27 I am compelled to the conclusion that whilst the separation arrangements could have been handled in a more professional manner, both parties contributed to the circumstances. 28 Correspondence from Mr Rubens of 4 June 2001 (att. B to ex 1) clearly expresses his understanding that the applicant has chosen to leave his employ. There is no documentary response thereto challenging that conclusion or setting out the basis on which the applicant sought to continue engagement. 29 Whilst unfortunate, the termination of the applicant's employment could not be found to be harsh, unreasonable and unjust. 30 The application for relief his refused. oo0oo 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.