Industrial Relations Commission of New South Wales CITATION: Goodwin and Paul Baker [2006] NSWIRComm 1116 APPLICANT Gary Douglas Goodwin PARTIES: RESPONDENT Paul Baker FILE NUMBER(S): 6447 of 2005 CORAM: Murphy C CATCHWORDS: Applicant employed as regular casual - dismissal following erroneous deduction from pay and upon presentation of letter of demand by applicant - allegations of slackness not convincing and applicant's evidence preferred - ignorance and unsophisticated nature of business taken into account in award for harsh, unreasonable and unjust dismissal. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Spanish Club Limited v Bainouar (1998) 94 IR173 HEARING DATES: 28/06/06 DATE OF JUDGMENT: 07/25/2006 EXTEMPORE JUDGMENT DATE : 06/28/2006 APPLICANT Mr Gary Goodwin represented himself LEGAL REPRESENTATIVES: RESPONDENT Mr Paul Baker represented himself DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C Date of Issue: 25 July 2006 Matter No IRC 6447 of 2005 Gary Douglas Goodwin and Paul Baker Application by Gary Douglas re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1116 1 In this matter of Gary Douglas Goodwin sought relief against his alleged unfair dismissal from Paul Baker. The Commission is now (28 June 2006) handing down an ex tempore decision in this matter as contemplated by practice note 17 where it is appropriate. 2 The evidence was short. There were two witnesses, the applicant, Mr Goodwin, followed by Mr Baker, the respondent. An opportunity was provided for the applicant to be recalled to deal with the matters raised by Mr Baker in his evidence in view of the failure of Mr Baker to follow the directions issues by the Commission at the end of conciliation on 22 March. That option was not in the end taken up by Mr Goodwin. 3 At the first conciliation of this matter on 22 February, there was no appearance by the respondent and some effort was required to properly identify the respondent's side. The file had showed originally that Advance National Service Company, along with Mr Baker was the employer. It became apparent that Advanced National Services Company was not the employer, Mr Baker was a contractor to that organisation and that Mr Baker employed Mr Goodwin. 4 On 22 March, the last attempt at conciliation, where Mr Baker was present, the Commission was unable to resolve matters and today the matter was required to proceed to arbitration, despite a last attempt to settle the matter between the parties. 5 In recent weeks it became known that the respondent had not provided his witness statement, despite promises and efforts were made by my assistant to contact Mr Baker, which I will not repeat now in this decision, but which I went on record this morning to place before Mr Baker and to decide how to minimise any prejudice to the applicant caused by that inactivity. 6 It is fair to say, I think, that Mr Baker's failure to do so arises from a profound ignorance of litigation and whilst it is not uncommon for both applicants and respondents to be unrepresented and for the Commission to encounter some difficulties when it comes to complying with directions, this is a case which must rank in a worse case range. Mr Baker's ignorance of that was not just restricted to his ability to lodge on time and I was forced to walk Mr Baker through the processes here this morning with some care. 7 Nonetheless, the parties appeared to be eager to have the Commission go back into conciliation, which I did. Unfortunately that effort was barren, just as it was on 22 March, and it is fair to say that essentially Mr Baker was unable to settle the matter due to his impecunious state. I say that to clarify the situation that Mr Baker's failure to conciliate did not appear at least to solely arise from sheer ignorance or appreciation of matters, but essentially that it was just not possible to get any offers from Mr Baker to settle the matter in circumstances where this decision might show then that he should have tired to settle. 8 Further by way of background, might I say then that the failure of Mr Baker to provide witness statements required me to give consideration and make a ruling prior to proceeding into the hearing of the case on the admissibility of Mr Baker's oral evidence, conscious as I was of practice note 17's requirement for evidence to be filed on time and telling Mr Baker of that instruction under practice note 17. I made a ruling after giving consideration to the Spanish Club case and I did allow the evidence of Mr Baker. For that reason, as I have already alluded to, Mr Goodwin was given the option to come back to counter the evidence of Mr Baker. 9 Throughout the evidence of both Mr Baker and Mr Goodwin, the Commission was at pains to ensure that both gentlemen were not prejudiced by their own ignorance, but particularly that of Mr Baker. The evidence given came firstly in the form of exhibit 1, the applicant's statement to this Commission of the circumstances of his dismissal. It was addressed in the format of a letter to the respondent and it was a short statement, which nominated 30 November 2005 as the date of his dismissal. 10 He says in that statement that $160 was taken out of his pay and the respondent gave the explanation when initially challenged that the applicant had been "slack". The applicant on that same day contacted the New South Wales Department of Industrial Relations, which advised him to write a letter of demand to his boss. That letter of demand became exhibit 2 in these proceedings, and apart from specifying the amount as $162, was consistent with the applicant's statement that the respondent had deducted those monies from his weekly wages. The applicant rightly pointed out in that letter of demand that he wrote in exhibit 2, that it was an illegal act of the respondent. The applicant told the respondent on that occasion that he would lodge a formal complaint with what he called the New South Wales Industrial Relations Board. 11 There is an important response from Mr Baker and not denied by him, and that is that, after saying this, Mr Baker turned to the applicant and said, "Fine, you can have your money, but you no longer have a job". The applicant gave oral evidence also that "You can go home" was also said to him. 12 The applicant gave the disturbing evidence that Mr Baker also failed to pay his superannuation contributions into a fund and in the last six weeks has received advice of where monies have gone in, which was from a former employer, which itself indicated to the applicant that at that stage at least, there was still no payments made by Mr Baker. 13 In respect of the Taxation Office, it was a case that the Commission was concerned that there may be an obligation under the Evidence Act to warn Mr Baker about giving evidence in that connection, that he might prejudice himself in some other proceedings that may be brought. The evidence in that respect was therefore incomplete, but the applicant's evidence was uncontested that the deductions were not given to the Australian Tax Office at the time that they should have been at the very least. There's some suggestion that the payment was made to the applicant himself at a later date. 14 The applicant approached Advanced National Services with his dismissal and received the reply that they could not do anything about it as Mr Baker was subcontracted to them. The applicant proceeded to lodge his application. 15 Apart from the applicant's statement and exhibit 2, which was the letter of demand, the applicant gave oral evidence of whether or not he received warnings. The Commission was required to frame some questions to the applicant in view of the inability of Mr Baker to properly put questions, which might have clarified his broad allegations against Mr Goodwin. The applicant was clear in his denial that any specific warning was ever given to him, although he did hear rumours that Mr Baker was dissatisfied with all the employees on the basis of slackness. He denied being slack himself. 16 In his own evidence, Mr Baker put, when questioned by Mr Goodwin as to when the alleged slackness took place, his response was, "Every day". In response to when he was supposed to have been warned, Mr Baker's evidence was that he was "warned all the time" and the slackness occurred when the applicant's girlfriend or fiancée worked in the nearby kebab shop. 17 The evidence of Mr Goodwin again had to be compared then with Mr Baker's assertions. It was clear that there was no evidence of any written warnings given to Mr Goodwin, but the Commission was more concerned with the type of conversation which might have taken place tantamount to warning. The Commission is unconvinced that any effort was made by Mr Baker to specify to Mr Goodwin any dissatisfaction. In fact, the Commission has accepted the evidence of Mr Goodwin over that of Mr Baker, largely because of the vagueness of Mr Baker's evidence, that there was no warnings given to Mr Goodwin. 18 Evidence of the conversation on the day of dismissal is a little more serious, and that is that the applicant was dismissed following Mr Baker's attempt to deduct $160 from the normal wages, which in exhibit 2 is shown as $722 that particular time. It is uncertain as to whether that's a week or a fortnight's pay, but on that occasion, Mr Baker attempted to do something which is certainly not allowed by the legislation. The applicant gave evidence that he thought the reason for the deduction might have been because the respondent needed the money himself. He was then dismissed because of his letter of demand in raising a matter he was more than entitled to raise with his employer. 19 That raises a very serious matter, which is not raised by Mr Goodwin in these terms himself, but which the Commission is compelled to note under section 210(f). I will come back to that in a moment. But in my consideration of this matter, I must say that this is the rarest of cases where an employer firstly is allegedly more impecunious than the person he has dismissed and being unemployed himself. And it is said that that's the reason for his inability to settle this matter, but clearly, after considering the evidence, this is a matter that Mr Baker should have moved heaven and earth to try and settle. I am fairly convinced the matter might have been settled for a modicum of a payment to Mr Goodwin, but in the absence of any offers, Mr Goodwin had a perfect right to pursue his claims, when in fact the evidence shows that despite Mr Baker's profound ignorance of what he was supposed to do by way of warnings, et cetera, he was not able to settle the matter. 20 In my consideration of the matter, firstly I must say that there was a complete absence of procedural fairness in this dismissal. Section 88 of the Act requires the Commission to at least take into account, if appropriate, certain basic natural justice issues, the first of which is that employees who are dismissed ought to be given the opportunity of the reasons for their dismissal. I believe Mr Baker did indirectly give those reasons however illegitimate, i.e. that the applicant wrote a letter of demand in respect of the $160 deduction. The subsequent summary dismissal should never have happened. Mr Baker should never have dismissed the applicant in these basically unjust circumstances. 21 So regardless or whether the applicant was slack or not at his work, the paramount issue for the Commission here is that the applicant was dismissed on an issue not denied by Mr Baker, that there was $160 taken out of his pay and that he made this profound statement to the applicant, "Fine, you can have your money, but you no longer have a job". 22 I am reluctant to go down the route of victimisation, but it is fair to observe that it seems to be fairly line ball with the prohibition in section 210(f) which says firstly in the headnote, "Reasons for victimisation", and goes on to say, "An employer or an industrial organisation must not victimise an employee or a prospective employee because the person informs any person of an alleged breach by an employer of an industrial relations legislation or an industrial instrument". This provision was naturally not raised by Mr Goodwin and I do not intend to take that route, although I sense that it is one which if raised in a proper form might have given rise to a separate order from the Commission, on the basis of being properly canvassed. 23 In section 88(b), goes on to say, if any such reason was given, "it's nature, whether it had a basis in fact and whether the applicant was given an opportunity to make out a defence of give an explanation for his or her behaviour or to justify his or her reinstatement or reemployment". Clearly if the question of slackness had been raised, the applicant was not given an opportunity to address any complaint. There was no convincing evidence by Mr Baker of any attempt to put to Mr Goodwin the allegations of slackness by him prior to dismissal. 24 Subsection (c), I need not waste too much time on because I've already dealt with whether a warning of unsatisfactory performance is given before a dismissal. Under subsection (f), the Commission is allowed to take such other matters as the Commission considers relevant. That includes, of course, the circumstances of the applicant's dismissal, which in this case are extreme, that is, the dismissal occurred because he sought the fulfilment of his industrial rights, namely to not have his pay of $722 deducted by $162. Such clearly unfair circumstances leave no question of the Commission's intervention on the employees behalf, noting that there were no believable actions of the applicant contributing to his demise. 25 So on the question of what orders the Commission ought make, I noticed the evidence from the applicant that the applicant was unemployed for a period of two months when he obtained employment with an organisation in the region of the Gold Coast, the West Burley Heads area, known as Blinds To Go. And in that job he enjoyed a new hourly rate of pay, which meant his take home pay was $442 per week. 26 I've also taken into account the evidence of the applicant of the nature of his employment, which whilst casual, was of a regular nature, and I also note the applicant's evidence that he was the subject of regular rostering. The allegations by the respondent of the applicant changing those roster arrangements were unconvincing and the denial by the applicant is accepted and the Commission has decided in view of the almost 12 months period of the applicant's employment and together with his reasonably regular employment and systematic rostering, that he ought to enjoy the jurisdiction of the Commission. 27 My findings are that the applicant's dismissal was harsh, unjust and unreasonable in extreme circumstances. 28 I have taken into account the apparent circumstances of the respondent's impecuniousness or at least as alleged at the bar table. Certainly I think I am entitled to take into account the unsophisticated nature of the operation and it is clear from the style of Mr Baker's conduct throughout these proceedings that he is, without offering any insult to him of course, not a well educated man, and certainly not in the ways an employer should act, especially to young staff. Nonetheless, the Act does not allow me to exonerate Mr Baker on that basis and I've made that clear in my earlier efforts to settle this matter. 29 I accordingly, taking into account the size and nature of the business involved, the very minimum that ought to be awarded comes to mind and I make this my order: O R D E R S 30 The respondent Mr Paul Baker is to pay to the applicant, Mr Goodwin the equivalent of eight weeks payment at the average of $300 per week earned by him, which is an amount of $2400. That payment should be made by Mr Baker within 28 days of the release of this decision. J P MURPHY 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.