Warrell & Western Sydney Tiles Pty Ltd [2004] NSWIRComm 1089 (20 October 2004)

Last Updated: 16 November 2004

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Industrial Relations Act 1996

EDWARD GEORGE WARRELL

(applicant)

-V-

WESTERN SYDNEY TILES PTY LTD

(respondent)

Commissioner Macdonald 20 October 2004

Matter No IRC 4872 of 2002

Matter No IRC 4908 of 2002

Application by Edward George Warrell for reinstatement of an injured employee pursuant to section 93 of the Industrial Relations Act 1996.

Application by Edward George Warrell re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

_____________________________________________________ ____

D E C I S I O N

1 On 22 August 2002, Edward George Warrell ("the Applicant") filed an application for reinstatement of an injured employee pursuant to section 93 of the Industrial Relations Act 1996 ("the Act").

The Respondent was named as: Tiles Extra.

2 On 27 August 2002, the Applicant also filed an unfair dismissal claim against the Respondent pursuant to section 84 of the Act.

3 Both applications came before the Industrial Relations Commission of New South Wales ("the Commission") on 30 September 2002.

The Applicant represented himself. The Respondent was represented by Mr G Mavrakis, solicitor.

The Applicant advised he had been in the employ of the Respondent for only about one and a half weeks when he suffered an injury on the job. He said he returned to base and reported the injury to his employer, who, he said told the Applicant to get off the premises and not come back. The Applicant said he was then given a letter, by the employer, stating that the Applicant was on a seven-week trial period. The Applicant said he had not been informed of this trial period beforehand.

Mr Mavrakis advised that the Respondent's proper title was: Western Sydney Tiles Pty Ltd. Amongst other things, he stated that the Applicant had been a probationary employee.

4 At a Report Back of 30 October 2002, the Commission advised that the matter had not settled. Accordingly, the unfair dismissal application (IRC 4908/02) was set down for a Hearing on the threshold issue that the Applicant could not continue the proceedings as he was allegedly a probationary employee. The Hearing was set for 20 December with the Respondent carrying the onus to prove the Applicant was a probationary employee.

5 On 20 December, the Commission was advised that the parties were engaged in discussions to settle the matter. The scheduled Hearing did not proceed.

The Applicant was now represented by Mr R Barwick, agent. The matter was set down for a Report Back on 10 February 2003.

6 The Report Back of 10 February was vacated by consent of the parties who advised that negotiations were continuing.

7 At a Report Back of 18 March, the Commission was advised that the parties had been unable to settle. The parties requested a Hearing.

A filing program was put in place with a Hearing set down for 27 June.

8 At the Hearing of 27 June, the Applicant was represented by Mr R Barwick, agent.

9 The Respondent was now represented by Mr Newall, barrister. Mr Newall called the following witnesses:

John Heffron - storeman;

Gwenda Darling - customer of the Respondent;

Chris Plagiotis - manager;

Joe Frangelli - managing director.

10 Only the oral evidence was completed on the allocated Hearing day. The parties agreed to complete the case by way of written submissions. Due to the circumstances pertaining to both parties there was a substantial delay in the Commission taking receipt of the parties' written submissions.

THE PROCEEDINGS

For the Applicant

11 Mr Edward Warrell (the Applicant) filed a witness statement (exhibit 1) and, inter alia, deposed as follows:

a)	He answered a job advertisement for a full time truck driver. He telephoned a person called "Joe" who advised that the salary for the job was $500 nett. There was no discussion with regard to any trial or probation period, nor any suggestion of written terms of employment being entered into.

b)	He began his employment on 7 August 2002.

c)	On 15 August, the Applicant was making deliveries to customers in the company truck. One of these deliveries was at an address in Lurnea.

Whilst unloading the delivery, part of the plastic sheeting for the load, blew away, across the road, into a grassed paddock. The customer (an un-named lady) told the Applicant to get the plastic as she needed it to cover the delivered tiles. The Applicant retrieved the plastic sheeting from the paddock but whilst walking back through the grassed paddock, he said he fell over a concealed rock in the grass. He said he hurt his ankle and back and was in pain.

d)

He returned to the depot and reported the injury to his supervisor, Chris who told the Applicant to be seated. Chris departed for about 20 minutes and upon his return, allegedly said to the Applicant: "you were on one month's trial. You are sacked. Get on your way". Chris then handed the Applicant his termination letter dated 15 August 2002.

The Applicant deposed that he had never been told he was on one month's trial or any trial/probationary period.

e)

He subsequently facsimiled a doctor's certificate to the Respondent. He made a workers compensation claim and the matter was settled. He had received workers compensation payments for several weeks: 15 August to 8 October 2002. The workers compensation proceedings were discontinued without admissions being made.

For the Respondent

12 Mr John Heffron handed up a witness statement (exhibit 10) and, inter alia, deposed as follows:

a) He had been employed by the Respondent for 2 and ½ years as a storeman.

b) He said the Applicant found it difficult to make up customers' orders correctly and to understand delivery instructions.

c) He conversed with the Applicant after the latter had made his deliveries on 15 August. He said he observed the Applicant sweeping the floor with a broom. He said the Applicant helped prepare orders for the next day - bending down into his knees to lift a box of tiles, weighing 20 to 30 kilograms, and load onto a pallet. This he did about ten times. The Applicant did not complain of any pain during this work performance.

13 Ms Gwenda Darling handed up a witness statement (exhibit 11) and, inter alia, deposed as follows:

a) She was a customer of Tiles Extra (the Respondent). The tiles she had ordered were delivered on 15 August around 2.10pm. (Ms Darling is the un-named lady referred to in the Applicant's statement - Macdonald C).

b) She had just arrived home at the time of delivery. She commented to the driver on the late 9.00am delivery. He (the Applicant) said he had been at her house at 9.00am but had allegedly said he had forgotten to leave half the order.

Ms Heffron noticed that the goods had been left on her front verandah, in full view of the neighbourhood including a $1,000 toilet.

c) She said she asked the Applicant to help her carry the delivered goods inside but he refused.

d) She saw a plastic wrap blow out of her driveway to the other side of the road. She asked him to pick up the plastic but he refused.

e) She rang and complained to Chris about the Applicant's conduct.

f) She observed the Applicant pick up the plastic sheeting which she said was no more than 3 metres from the edge of the bitumen road.

Ms Darling stated that the Applicant returned to his truck, with the plastic sheeting, and at no time did she observe the Applicant trip or twist his feet or legs in any way.

g) She described the Applicant as unhelpful and incompetent.

14 Mr Chris Plagiotis handed up a witness statement (exhibit 13) and, inter alia, deposed as follows:

a) He is the manager and has been working for the Respondent since August 2000.

b) He said that he received customers' complaints about incomplete orders and wrong orders, pertaining to the Applicant.

c) He received customers' complaints about the Applicant's deliveries for 15 August - during that day of 15 August. One such complaint was from Gwenda Darling.

d) He said the Applicant returned to the depot around 4.00pm and seemed fine.

He spoke then to Mr Joe Frangelli (managing director) about the customers' complaints. The latter advised to get rid of the Applicant, if Mr Plagiotis was not happy. Mr Plagiotis said he approached the Applicant around 5.00pm, advised of the customers' complaints and of the Applicant's termination. The Applicant was given his termination letter.

The Applicant allegedly responded: "I was injured on the last job". Mr Plagliotis responded: "Now you're telling me".

e) He said that the Applicant turned up the next day looking for Mr Frangelli and allegedly stated to Mr Plagliotis: "This is an unfair dismissal you owe me more money I am going to take this further, you pay me $2000 or $3000 or I'll take this further".

15 Mr Joe Frangelli handed up a witness statement (exhibit 4) and, inter alia, deposed as follows:

a) He is the managing director.

b) He placed a job advertisement with CES on or about early August 2002. The Applicant responded by telephone on or about 6 August, to the job advertisement. Later that day, the Applicant and Mr Frangelli conversed. The latter claims he said the job was on the basis of one month's probation.

c) He said that within a few days of employing the Applicant, the storeman (John Heffron) complained about the Applicant's work.

d) On 15 August, about 4.00pm, Mr Plagliotis discussed with Mr Frangelli, the complaints received from customers about the Applicants performance. Mr Frangelli advised to get rid of the Applicant, if Mr Plagliotis was not happy with the Applicant.

SUBMISSIONS

For the Applicant

16 Mr Barwick for the Applicant made the following submissions in respect of the s84 unfair dismissal application and the s93 reinstatement of an injured employee application.

Section 84

a) The Applicant had not been on probation. The Respondent carried the onus of proving that the Applicant had been a probationary employee.

b) The Applicant had sustained an injury on the job and had produced a medical certificate.

c) The Applicant had been dismissed. The reason for dismissal was the injury the Applicant sustained at work. The Respondent's claim of performance factors as reason for dismissal was rejected.

d) Monetary compensation be paid in the sum of six months salary pursuant to s89(5).

Section 93

e) The Applicant suffered a work related injury and the reason for dismissal was the injury sustained by the Applicant.

f) There was a refusal to reinstate.

g) The issue of probationary employment does not apply to s93 proceedings.

h) the Applicant's injury was "compensable" and therefore he was an injured employee for the purposes of s 93 and entitled to pursue his s 93 application.

i) Monetary compensation be paid in the sum of three months salary.

For the Respondent

17 Mr Newall for the Respondent made the following submissions in respect of the s84 and 93 applications.

Section 84

a) The Applicant had been a probationary employee and was therefore excluded from bringing his application.

b) The account of the injury did not hold water, given the Applicant's account and that of the Respondent's witnesses (which included a customer of the Respondent).

c) The Applicant had only been employed for one week and so any compensation awarded was restricted to one week's pay.

Section 93

d) The account of the injury by the Applicant did not hold water.

e) There was no proper evidence that the Applicant suffered a "compensable" injury and in any event, liability was denied and never accepted. Therefore the Applicant was unable to rely on s93 of the Act and hence the Commission lacks jurisdiction to deal with the Applicant's s93 application.

f) If the Commission has jurisdiction pursuant to the s93 application (in this case or under s93 generally) then the Commissioner's orders are limited to either:

i) the Commission has no power to make an order for compensation; or

ii) if the approach in Johnson v Impala Kitchens (1998) be correct, then the Commissioner's power to make a s93 order for compensation flows from and is limited by the constraints under s89. In this case, the s89 compensation is limited to one week's compensation and so therefore the Applicant's available compensation pursuant to s93, is limited to one weeks compensation, if granted.

CONSIDERATION

18 There are two applications before the Commission for its consideration:

(a) the s 93 reinstatement of an injured employee; and

(b) the s 84 unfair dismissal.

The Commission proposes to consider the applications in the above order.

Section 93 Application

19 The Applicant's s 93 application falls within "Part 7 - Protection of Injured Employees" of the Act. Resort to the Second Reading Speech in the Legislative Council of New South Wales establishes the policy rationale behind Part 7 as being: "... designed to provide certain employment - security rights for persons who have suffered a work-related injury" - Hansard, 23 November 1995, page 51.

20 The Commission notes that in order to entertain a s 93 reinstatement order, there are certain statutory prerequisites to be satisfied:

• The Applicant must be an injured employee, that is, an employee who receives an injury for which the employee is entitled to receive compensation under one of two named pieces of legislation: s 91(1).

• The injury needed to arise (either wholly or partly) out of or in the course of employment: s 91(2).

• The Applicant's application is for reinstatement: s 92(1), which includes re-employment: s 91(3).

• The Applicant must produce to the employer a medical certificate to the effect that the injured employee is fit for employment: s 92(3).

The foregoing prerequisites are also potential issues in any proceedings before the Commission. And that was the situation in these proceedings.

21 One of the statutory prerequisites that needs to be satisfied is that the employee makes an application for reinstatement: s 92(1), which includes re-employment: s 91(3).

The Applicant made such an application for reinstatement and it was filed on 22 August 2002. However, the Applicant's representative (Mr Barwick) advised the Commission in preliminary submissions from the bar table, that the evidence would show that there was no opportunity (no work) available for reinstatement. In the same vein, he went on to say that the trail had gone very cold and the first anniversary of dismissal was approaching. Further, if the Commission was satisfied that there was no job opportunity with the Respondent, then the Commission could then consider monetary compensation: "...since the date of the accident to the date of the making of any order of this Commission, less ... any amounts he's received in the interim" - (transcript, pages 11 - 12)

This submission from Mr Barwick advises the Commission that the Applicant is not seeking reinstatement but monetary compensation.

The Commission takes the view that the above submission fatally flaws the Applicant's s 93 reinstatement application. A reading of Part 7 shows that there is only one remedy available to any applicant and that is reinstatement (which includes re-employment). There is no option available to claim compensation only or to claim (as did Mr Barwick) that reinstatement is impracticable and that compensation was then available as a remedy. No doubt Mr Barwick relied upon the Employers Reply to IRC 02/4872 to say reinstatement was impracticable. This Employers Reply said: "The Respondent does not have any available position for the Applicant for the purpose of reinstatement".

Mr Newall, for the Respondent, succinctly put the point as follows: "So it's reinstatement or bust, if I can use that vernacular term;" - (transcript, page 9).

Accordingly, because the Applicant sought an order not available under Part 7, then the Applicant's s 93 application is not properly grounded and the Commission can no longer consider the s 93 application.

22 Before moving on to a consideration of the Applicant's s 84 unfair dismissal application, some further commentary on the operation of Part 7 is required.

23 Mr Barwick's preliminary submission, extracted above, seeks an order of monetary compensation from the Commission. Mr Newall's "vernacular" submission also went onto say it was reinstatement only with an order for compensation. No doubt these advocates used the term "compensation" because of their regular attendance before the Commission in unfair dismissal proceedings and/or that there was also an unfair dismissal application by the Applicant to be considered by the Commission. However, the Commission points out that the remedy of "compensation" is not available under Part 7 proceedings. The only remedy available is reinstatement: s 93, which may include re-employment: s 91(3) and the Commission may order payment of "remuneration:" s 94(4).

From a reading of s 94(4), it is clear that this concept of "remuneration" is not compensation, but "back-pay". This point is made explicit in the Minister's Second Reading Speech: "There is no ability to order compensation in lieu of reinstatement" - (Hansard, page 51).

Section 84 Application

24. There were a few issues for the Commission's consideration in respect of the Applicant's s 84 unfair dismissal application:

• Mr Newall in his oral preliminary submission raised the operation of s 90 of the Act and its impact on the ability of the Applicant to proceed with his s 93 application.

• Mr Newall submitted that the Applicant was a probationary employee and was thus excluded from bringing his application.

• Mr Newall submitted that if the Commission was against the Respondent on the above two issues, the Commission would not be moved to find the dismissal unfair in any event.

25 Section 90 - Mr Newall pointed out in his oral preliminary submissions that the Applicant had not filed a s 90 undertaking: "Effect of Availability of Other Remedies". Accordingly, he said that the Applicant could not proceed with his s 93 reinstatement of an injured employee application.

Further, he said that the Commission is barred from determining any applicant's unfair dismissal application if:

(i) the applicant has not filed a s 90 undertaking not to proceed under another Act or statutory instrument for redress; or

(ii) the applicant has commenced proceedings under the other Act or statutory instrument.

The Commission notes that this oral submission was not repeated in Mr Newall's final written submissions. In any event, the Commission rejects Mr Newall's submission on two grounds.

26 Firstly, section 90 speaks of pursuing a redress under "another Act" and does not speak of pursuing a redress under another section or part of the Industrial Relations Act 1996. Thus the prohibition upon any unfair dismissal applicant goes to redress under any other Act, apart from the Industrial Relations Act 1996. Accordingly, the Applicant is not caught by the s 90 prohibition as his s 93 application was not pursuant to "another Act" - being one other than the Industrial Relations Act 1996.

Secondly, "Part 7 - Protection of Injured Employees” specifically provides that the operation of Part 7 "... does not affect any other rights of a dismissed employee under this or any other Act or under any industrial instrument or contract of employment" - (s 100 of the Act). Thus the Applicant's s 93 application does not prohibit him from pursuing his unfair dismissal application.

For the above reasoning, the Commission rejects the Respondent's oral submission that the Applicant is precluded from bringing his s 84 unfair dismissal application.

27 Probationary Employee - Mr Newall submitted that the Applicant was a probationary employee and therefore excluded from bringing his unfair dismissal application: s 83(2)(b).

The Applicant denied he was on probation. The onus for proving he was a probationary employee is on the Respondent.

The evidence of the Respondent that the Applicant was a probationary employee comes from Mr Joe Frangelli, the managing director, who deposed he placed an advertisement for a driver/storeman and arising therefrom he interviewed the Applicant on or about 6 August. During this interview, Mr Frangelli deposed he told the Applicant the job included one month' s probation - (exhibit 14, paragraphs 2 and 4).

The Applicant denied under cross-examination that the issue of probation was raised during the interview.

The Commission notes that the job advertisement contained no reference to a probationary period. As to the job interview itself, there was no witness.

The Respondent carries the onus, on the balance of probabilities, for proving the Applicant was a probationary employee. The Commission finds that that onus has not been satisfied.

28 Unfair Dismissal ? - The Respondent claimed that the Applicant had been dismissed because of customer complaints.

The best evidence presented by the Respondent for this claim came from its witness, Ms Darling who was a customer of the Respondent. She had placed an order with the Respondent and the Applicant delivered that order on a Friday. Her evidence in cross-examination about that delivery was that the Applicant was rude and arrogant and that he had refused her request to carry the delivered goods inside her house. She then rang Mr Plagiotis to complain about the foregoing and further that the Applicant refused her request to pick up the plastic covering which had blown away in the wind, from her lawn to across the street.

29 Mr Plagiotis was not cross-examined by Mr Barwick about the Applicant's rudeness and Ms Darling's request refused by the Applicant .

Accordingly, the Commission accepts that the Respondent had a genuine issue to raise with the Applicant as to his conduct with this customer.

The Respondent also claimed that it had other complaints about the Applicant's conduct but the evidence of Mr Platiotis shows that if there were such complaints, they were not raised with the Applicant - (transcript, page 102). Nor was the Applicant given the opportunity to respond to these complaints - (transcript, page 104).

Prima facie, there is evidence then of denial of natural justice against the Applicant.

30 Another issue for the Commission's consideration goes to the credit of the Applicant in the context of the Respondent's claim that the Applicant's account of his injury does not hold water. In that respect, the Respondent relies upon the evidence of Ms Darling (the customer) who did not observe any limping by the Applicant from his tripping over a concealed rock allegation; and relied upon the evidence of Mr Heffron (the storeman) and Mr Plagiotis ( who spoke to the Applicant before dismissing him) and Mr Frangelli (the owner) who all said that they had not seen any limping or signs of any injury allegedly sustained by the Applicant.

Although this means that there are several witnesses against the Applicant on this point, there is the counter evidence provided by the Applicant in the form of his medical certificate (exhibit 3). This asserts him to be unfit for work from 15/8/02 (the day of his dismissal) to 23/08/02. The diagnosis is given as: "LOW BACK/RIGHT HIP/RIGHT ANKLE OUTER MALLEOLAR AREA". This certificate seems to support his claim of sustaining an injury - and work related as well.

Accordingly, the Commission is unable to make a finding in favour of the Respondent's claim on this point.

Summary

31 The Commission has before it two applications: ss 84 and 93.

32 The Commission has decided that the s 93 application was not properly grounded as the Applicant sought a remedy, being compensation, and which remedy cannot be granted by this Commission. The Commission is limited to the remedy of reinstatement (which includes re-employment) and the payment of back-pay. Section 93 does not allow the remedy of a finding by the Commission that reinstatement is impracticable and thence the ordering of compensation.

33 The Commission then considered the s 84 application. The Commission accepted that there had been a complaint raised by Ms Darling (a customer) with the company on 15 August, being the day the Applicant made a delivery of goods to this customer. The Commission also found that this complaint about the Applicant's rudeness and arrogance was not challenged by Mr Barwick.

The Commission noted that Mr Plagiotis agreed, under cross-examination, that such complaints were not raised with the Applicant prior to his dismissal.

Accordingly, the Commission concludes that the Applicant was denied procedural fairness.

Following on from that, the Commission finds that the decision to dismiss the Applicant was unjust: Outboard World Pty Ltd (t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 168.

CONCLUSION

34 The Commission, for reasons contained herein, has rejected the Applicant's s.93 application which sought compensation as a remedy.

The Commission, for reasons contained herein, has held that the Applicant was denied procedural fairness in respect of his s 84 application.

35 The Commission notes that the Applicant's unfair dismissal application advises that the Applicant was employed from 7 to 15 August 2002. This made for seven days of employment. Because this period of employment is less than six months, then the amount of compensation that can be awarded is restricted to no more than that particular period of employment (7 days): South West Security Pty Ltd v Baker (1993) 36 AILR 227.

The Commission also notes that the Applicant's weekly gross pay was recorded in his s 84 application as $500 per week.

O R D E R S

In this matter for reasons outlined therein, I have determined that the dismissal was unjust and I hereby make the following orders:

(a) The Commission orders that the Respondent pay to the Applicant an amount of compensation of one weeks pay. ($500 gross)

(b) The amount of compensation specified above has been determined, having regard to section 89(5) and 89(6) of the Act.

(c) The amount of compensation specified above is to be paid by the Respondent to the Applicant within twenty-one days from the date of this Decision.

A Macdonald

Commissioner