Shop, Distributive and Allied Employees' Association, Broken Hill Branch (on behalf of Michael Roy Hoskins) and Gateway Investments Pty Ltd t/as Broken Hill Hungry Jack's [2005] NSWIRComm 209 (24 June 2005)

Last Updated: 28 June 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Shop, Distributive and Allied Employees' Association, Broken Hill Branch (on behalf of Michael Roy Hoskins) and Gateway Investments Pty Ltd t/as Broken Hill Hungry Jack's [2005] NSWIRComm 209

FILE NUMBER(S): 3645

HEARING DATE(S): 19/04/2005

DECISION DATE: 24/06/2005

PARTIES:

APPLICANT:

Shop, Distributive and Allied Employees' Association, Broken Hill Branch

RESPONDENT:

Gateway Investments Pty Ltd t/as Broken Hill Hungry Jack's

JUDGMENT OF: Sams DP

LEGAL REPRESENTATIVES

APPLICANT:

Mr D Blairs (for the Union)

RESPONDENT:

Mr D Tunkin (unrepresented)

CASES CITED: Antonakopoulos v State Bank of New South Wales (1999)

91 IR 385

Bankstown City Council v Paris (1999) 93 IR 209

Broad v Wesfarmers Federation Insurance Limited [1994]

SAIRC 30

Buckman and Another v Burdekin Resources NL (1998) 85 IR 415

Byrne & Anor v Australian Airlines Limited [1995] 185 CLR 410

D & R Commercial Pty Ltd and Flood [2002] NSWIRComm 88

Little v Commissioner of Police (No.2) [2002] NSWIRComm 52

Mohammed Shakiq v Boral Australia Gypsum Limited [2003] NSWIRComm 182

Outboard World Pty Limited t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167

Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2002]

NSWIRComm 144

Re Equal Remuneration Principle (2000) 97 IR 177

Williams and Pigment Dispersions Pty Ltd [2004] NSWIRComm 268

Wilson v Department of Education and Training (2000) 100 IR 1

AWARD:

Broken Hill Hungry Jack's Agreement 1994

LEGISLATION CITED: Industrial Relations Act 1996

Anti Discrimination Act 1977

JUDGMENT:

- 6 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: SAMS DP

24 June 2005

Matter No IRC04/3645

Shop, Distributive and Allied Employees' Association, Broken Hill Branch (on behalf of Michael Roy Hoskins) and Gateway Investments Pty Ltd t/as Broken Hill Hungry Jack's

Application by Shop, Distributive and Allied Employees' Association, Broken Hill Branch on behalf of its member Michael Roy Hoskins re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2005] NSWIRComm 209

1 At fifteen years of age, Mr Michael Roy Hoskins ('the applicant') commenced casual employment with Gateway Investments Pty Ltd t/as Broken Hill Hungry Jack's ('the respondent') on 21 May 2001. In April 2002, he commenced a full time Retail Certificate 2 Traineeship for 12 months. After successfully completing the traineeship, the applicant continued to work for a short time as a casual employee before commencing Certificate 3 Retail Traineeship from May 2003.

2 Just prior to concluding the second traineeship in May 2004, the applicant injured his right shoulder at work and remained off work until his alleged unfair dismissal on 1 June 2004. (I shall return to the circumstances of his termination of employment later). The letter terminating the applicant's employment was expressed as follows and dated 29 May 2004:

Dear Micheal (sic),

We are writing you this letter as confirmation that your traineeship has finished with Hungry Jack's.

Unfortunately a position is not available for continued employment.

We appreciate you are currently off with an injury and have advised CGU of this letter and monies we have paid to you.

We enclose your holiday pay being 4 weeks as discussed in our original traineeship agreement.

We thankyou for the time you have been with us in traineeships and now wish you all the best for your future employment.

3 The Shop, Distributive and Allied Employees Association, Broken Hill Branch ('the Union') filed an unfair dismissal claim on the applicant's behalf pursuant to Pt 6 ch 2 of the Industrial Relations Act, 1996 ('the Act') on 22 June 2004.

4 The Union later made claims of underpayment of wages under s380 of the Act and pursuant to the provisions of the Broken Hill Hungry Jack's Agreement 1994 ('the Agreement'). These claims were dealt with concurrently in the arbitration of the unfair dismissal application in Broken Hill on 19 April 2005.

5 Prior to the arbitration, a number of attempts were made to resolve all claims against the respondent. However, as these attempts proved unsuccessful, the Commission made a finding, pursuant to s87 of the Act, of unsuccessful conciliation and issued directions for the filing and service of evidence in the case. Mr D Blairs from the Shop, Distributive and Allied Employees' Association (South Australia) with Ms R Ferry appeared for the applicant and the Union in the arbitration proceedings. Mr D Tunkin, the former franchise owner of Hungry Jack's, appeared unrepresented for the respondent.

THE EVIDENCE

The applicant's case

6 On 31 May 2004, the applicant was paid annual leave as a lump sum of $1405.60 at the completion of his traineeship. As this was not the usual procedure and he was off work with his injury, he went into the store to ask why he had been paid a lump sum.

7 When he arrived at the store, another employee, shift runner, Scott Kelly, told him he could not go to the back of the store to speak to the Store Manager, Crystal Djakovic. Mr Kelly then produced the letter terminating the applicant's employment. Mr Kelly said he was sorry; it was not his decision, but Mr Tunkin's and Ms Djakovic's. The applicant went home and he and his mother went to Mr Tunkin's Art Gallery and residence, Red Sands, to confront Mr Tunkin.

8 When they arrived Mr Tunkin told him that he was trying to sell the business and could no longer afford to keep him on as a senior employee after his traineeship ended. The applicant queried why there was a sign advertising for staff outside the store. Mr Tunkin said that the sign was for junior staff - not senior staff. After leaving the Gallery, the applicant returned to Hungry Jack's to photograph the sign. However, it had been removed. When he asked another staff member why it had been taken down, he was told Mr Tunkin had just phoned and asked her to take it down.

9 It was the applicant's evidence that during his employment as a full time trainee he was regularly rostered to work less than 35 hours. When he queried this with Ms Djakovic, he was told that full time hours were between 30 and 38 and there was not enough work to provide all employees with 38 hours a week. He had not pursued this at the time because he did not want to upset the management.

10 Since his dismissal, the applicant claimed his injury had deteriorated and he had been unable to find alternative work. He had been looking for three jobs a week.

11 Mr Blairs tendered the following documents in support of the applicant's case:

(a) the applicant's traineeship contract which disclosed that he was employed on a full time basis. The contract included this paragraph:

An Apprenticeship/Traineeship can be undertaken on a full-time or part-time basis in all States and Territories. A full-time Apprentice/Trainee is one whose ordinary hours of employment, including the training component, are not less than the usual hours of employment for a full-time employee in that industry, trade or kind of work. Part-time provisions vary, on similar basis and from State to State.

(b) the applicant's pay records;

(c) the Broken Hill Hungry Jack's Agreement 1994, with reference in particular to Cl.6(1):

(1) FULL-TIME EMPLOYEES

Full-time employees will be engaged by the week and work 38 hours per week.

Full-time employees will not be engaged for less than five consecutive hours per shift.

Full-time employees will be paid an hourly rate equal to the appropriate weekly rate divided by 38.

12 In oral evidence, the applicant said he worked regularly as a casual in 2001/02, initially 10 hours, then 20 hours a week. When he resumed casual work after his first traineeship, he had worked regularly for about 30 hours a week. When he commenced his full time traineeship he had expected to be working 38 hours a week, but this was not always the case. The applicant claimed he was aware of, and had seen new employees working at Hungry Jack's since his dismissal.

13 In cross examination, the applicant agreed that Mr Tunkin was an approachable person whose "door was always open". The applicant accepted that his final holiday pay was calculated on 35 hours a week. He agreed his hours of work had not been a major concern for him.

14 Mrs Elizabeth Maria Hoskins, the applicant's mother, gave evidence corroborating her son's version of the conversation with Mr Tunkin on 1 June. In cross examination, Mrs Hoskins was asked who had raised the issue of the sign outside the store. She said she could not remember whether she or her son had raised the matter. Mrs Hoskins said that her son had never been offered a casual job after his dismissal and the Union had never mentioned it.

Respondent's evidence

15 Mr Tunkin believed that when the applicant finished his traineeship his "position was completed with us." Just prior to completing the traineeship the applicant was on worker's compensation and was paid his annual leave in part from the insurer.

16 Mr Tunkin deposed that when the applicant and his mother arrived at his house on 1 June, the applicant was swearing and aggressive. Mr Tunkin told him that his traineeship had ended and unfortunately there were no full time positions available. Mr Tunkin also told him he was negotiating the sale of the business. When the applicant asked why he was advertising for staff, Mr Tunkin said it was for junior positions. The applicant had said, "I'm not fucking putting up with this," and stormed out.

17 Mr Tunkin said he then rang the store about the sign and was told it had been taken down after sufficient applications had been received for a casual position. Mr Tunkin said that in his early conversations with the Union, he had offered the applicant a casual position, but could not guarantee him a set number of hours per week.

18 Mr Tunkin said that when the applicant and his mother came around he wasn't even aware the store was advertising for staff at the time. Staffing decisions were left with Ms Djakovic.

19 In oral evidence, Mr Tunkin said that Hungry Jack's was run by a trust with he and his wife as directors. He did not have a "hands on" role in managing the staff roster, but did have staff management meetings once a week. These meetings would decide the mix of staff required; whether, full or part time, casuals or trainees.

20 Mr Tunkin said he had had no control over running Hungry Jack's since July 31, 2004. He offered the business to a new operator for 12 months rent free. However, there had been no actual sale. Mr Tunkin said that in mid 2004 he had approached the new owner/manager about casual work for the applicant. The new owner had agreed, but couldn't guarantee specific hours. He had put this offer to the Union (Roslyn Ferry and Brendan Duffy), but had heard nothing further.

21 It was Mr Tunkin's understanding that there was no obligation to retain an employee after the completion of a traineeship. He had decided not to renew traineeships because a new owner might be coming into the business.

22 Mr Scott Kelly deposed that on 1 June when Mr Tunkin called about the sign he informed him that, as the position had been filled, Ms Djakovic had taken the sign down about an hour earlier. He agreed the sign had been there when the applicant attended the store earlier in the day. At that time, the manager had given Mr Kelly a letter to be given to the applicant. However, Mr Kelly had no knowledge of what it contained. Mr Kelly agreed that Ms Djakovic made all the decisions regarding hiring and firing. He accepted that new junior staff had commenced a few days later. Mr Kelly said the store rarely hired older casuals. However, he said that he had not seen casuals sacked if they reached a certain age.

23 Mr Kelly said he had worked with the applicant for over two years and had never heard him complain about working less than 38 hours a week.

24 Unsuccessful attempts were made, including during the proceedings, to contact another witness, Ms Djakovic, in order for her to be cross examined. Her untested statement was tendered in the proceedings. In it, she deposed that she had been advised by Access Group Training that in order for the applicant to complete his traineeship, he would be required to work between 31 and 38 hours a week. These hours had been guaranteed to him. Ms Djakovic said that between August 2003 and May 2004, the applicant never approached her with concerns about his hours.

25 Ms Djakovic confirmed that she had given Mr Kelly the applicant's termination letter on 1 June.

26 Ms Djakovic claimed that the sign advertising for casual staff had been put up around 19 May and taken down on 1 June after 15 applications had been received for the position.

SUBMISSIONS

For the applicant

27 Mr Blairs submitted that when the applicant's traineeship came to an end it constituted a termination of employment and an unfair dismissal. The applicant should have been placed back on casual employment; just as he had been when his first traineeship ended.

28 The applicant had an expectation of ongoing employment and indeed, the respondent not only had work available, but was advertising for new staff. The applicant's position had now been prejudiced by having taken up the traineeship. Mr Blairs asserted that there was no issues of misconduct or poor work performance and the applicant was an experienced and valued employee with over three years service.

29 Mr Blairs submitted that the applicant's workplace injury may have impacted on the decision to dismiss him, as did his age and the requirement to pay him more than junior staff. As Mr Tunkin was seeking to sell the business, a smaller wages bill would have made the business a more attractive proposition. Both these reasons for the applicant's termination offended the provisions of the Act and the Anti Discrimination Act 1977.

30 Mr Blairs submitted that there was no written offer of re-employment made to the applicant. Mr Tunkin was, in fact, in no position to make such an offer because he no longer owned the business. The applicant was actively seeking re-employment but was having difficulty in light of his injury and the poor job market in Broken Hill. He sought monetary compensation for his unfair dismissal.

31 Mr Blairs put that the applicant received no warning of his dismissal, it was conveyed to him by someone other than the decision maker and he was never given an opportunity to discuss the matter with management. This demonstrated a high level of procedural unfairness.

32 As to the under payment claim, Mr Blairs submitted that the full time definition under the Agreement was 38 hours a week and the applicant should be paid for 38 hours, even if he didn't work those hours. See Broad v Wesfarmers Federation Insurance Ltd (1994) SAIRC 30.

33 While accepting that the respondent might have been told that full time hours were between 31 - 38 hours, there was no variation to the applicant's contract of employment for 38 hours. As a 17 year old, he was in no position to query or challenge his hours. The applicant had, on occasion, worked 38 hours. However, the Union was seeking the payment of the difference when he had worked less than 38 hours. After making certain adjustments, Mr Blairs claimed the amount was $2,233.94.

For the respondent

34 Mr Tunkin submitted that the applicant's employment came to an end when his traineeship concluded. Mr Tunkin stressed he never had a policy of laying off older workers. Moreover, he had offered the applicant re-employment on a casual basis, but had heard nothing back from him or the Union.

35 Mr Tunkin said that the average hours were 35 as can be seen by the amount of annual leave paid on termination. There was also a period of overpayments which should be taken into account. Mr Tunkin said the applicant had not complained about his hours and on his own admission, said it had not been of concern to him.

36 Mr Tunkin agreed that the applicant may have had a reasonable expectation of ongoing employment. He accepted that it was not usual to have a letter of termination handed to an employee without prior discussion.

CONSIDERATION

37 In the usual course, there is no obligation on an employer to retain an employee on completion of the employee's apprenticeship or traineeship. Both parties are usually fully aware of this at the commencement of the traineeship and the employee understands that there might not be an offer of ongoing employment. This reality would seem to be expressly comprehended by the exclusion from Pt 6 ch 2 of the Act for apprentices and trainees found at s83(3):

(3) This Part does not apply to the dismissal of any such employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001 or any such employee who is an executive officer to whom Part 2A of the Public Sector Management Act 1988 or Part 5 of the Police Service Act 1990 applies.

I hasten to add that by offering training, particularly to young people so that their skills can be developed and enhanced, the employer is fulfilling a commendable public duty.

38 However, the circumstances of this case are completely at odds with those which I have just described. The applicant had over three years of employment under two traineeships, and two periods of casual employment, with the same employer. In other words, he would have had no reason to believe that his employment would be terminated at the end of his second traineeship. Indeed, in light of his earlier experience, his apprehension would have been directly to the contrary. To his credit, Mr Tunkin conceded that the applicant may have had a reasonable expectation of continuing employment.

39 Viewed in this way, I find that the applicant had an expectation of ongoing employment when he was abruptly dismissed without warning on 1 June 2004. He was therefore placed in the same position and entitled to the same protections as any other employee who is dismissed and who has legal and industrial rights under Pt 6 ch 2 of the Act.

Was the dismissal unfair?

40 The task of the Commission then is to determine whether the dismissal of the applicant was "harsh, unreasonable or unjust" within the meaning of Pt 6 ch 2 of the Act.

41 The expression "harsh, unreasonable or unjust" is not defined in the statute, but has been relevantly considered in a number of frequently quoted authorities to which I shall refer shortly. The meaning of the words have an industrial connotation based on their ordinary plain English usage.

42 The Macquarie Dictionary defines the terms "harsh" - ungentle and unpleasant in action or effect; "unreasonable" - not endowed with reason; not guided by reason or good sense; not based on, or in accordance with, reason or sound judgement; and "unjust" - not just; not acting justly or fairly, as persons; not in accordance with justice or fairness, as actions.

43 The Concise Oxford Dictionary defines "harsh" - repugnant to feelings or judgment; cruel, unfeeling; "unreasonable" - not reasonable; going beyond the limits of what is reasonable or equitable; and "unjust" - not just, contrary to justice or fairness.

44 Notwithstanding that the expression "harsh, unreasonable or unjust" is often applied globally to a particular dismissal, it can be seen from the dictionary definitions, that each word has a discrete meaning.

45 The correct approach to be applied to by the Commission in determining s84 matters was recently considered in Williams and Pigment Dispersions Pty Ltd [2004] NSWIRComm 268. There the Full Bench said at paras 19-23:

19. However, in reaching his determination, the Commissioner has failed to apply the statutory test which is set out in s 84 of the Act. The phrase "harsh, unreasonable or unjust" is an important key to the jurisdiction and requires some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust; other permutations may apply. In Bankstown City Council v Paris (1999) 100 IR 363 at 371 Wright J President, Peterson J, Bishop C noted at 373:

We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

20. A classic exposition of principles applicable to unfair dismissal matters was given by Watson J in Metropolitan Meat Industry Board v Australasia Meat Industry Employees Union, New South Wales Branch [1973] AR 231 at 233, which principle, while stated in relation to proceedings under the Industrial Arbitration Act 1940 (NSW), is equally applicable to the proceedings under the Industrial Relations Act. His Honour there stated:

In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.

21. In Entertainment Distributors Company Pty Limited and Anor v Burnard (1993) 49 IR 446, a Full Bench of the Commission (Hill and Peterson JJ, Connor CC) considered s 246 and s 250 of the 1991 Act which were predecessor provisions to s 84 and s 89 of the 1996 Act. The Full Bench said at 453:

In our opinion, having regard to the provisions of Part 8 and in particular ss 246 and 250 it is fundamental to the proper exercise of the jurisdiction that the Commission should first make a finding whether or not the employee has been harshly, unreasonably or unjustly dismissed or threatened with dismissal by the employer and set out the reasons for that finding prior to making any order disposing of an application under s 246. It is not sufficient in our view for this merely to be left as a matter of inference from the fact that the Commission decides to dismiss the application or alternatively make orders pursuant to s 250. In this case the Commissioner made orders under s 250, including an order for re-employment without any finding or conclusion that the employees had been harshly, unreasonably or unjustly dismissed and without setting out any reasons for decision in which such a finding and the reasons therefor were implicit.

Furthermore, in our opinion, s 250 requires a finding that it would be impracticable to reinstate the applicant prior to the making of any order of re-employment in lieu of reinstatement ... but having regard to the terms of s 250 considered as a whole, it is necessary in our view, for the Commission when ordering reinstatement or re-employment to give reasons in the case of reinstatement why such reinstatement is appropriate and/or reasonable in all of the circumstances or where re-employment is ordered why reinstatement is not practicable but re-employment is practicable and justified. Similarly in a case where an order is made for compensation, it is necessary that a finding be made that the dismissal was harsh, unreasonable or unjust and the reasons therefor should be set out together with the reasons why in the circumstances it is not practicable to order either reinstatement or re-employment but that it is just an (sic) appropriate to order compensation.

22. The decison under appeal in this case contains no findings whether or not Mr Williams was harshly, unreasonably, or unjustly dismissed, nor are reasons for such a conclusion provided.

23. The debate before us as to the proper analysis of the Commissioner's decision demonstrates the importance of the Commission indicating clearly in terms of the statute, the conclusions which are reached and the reasons for such conclusions. For example, was consideration given to the employee's length of employment; was consideration given to whether the employee was acting out of character; was the employee under financial time pressures; had there been delays in the past in receiving his wages.

See also Byrne & Anor v Australian Airlines Limited 185 CLR 410, Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167, Bankstown City Council v Paris (1999) 93 IR 209 and Mohammed Shakiq v Boral Australia Gypsum Limited [2003] NSWIRComm 182.

46 It is curious that the respondent was actually recruiting staff at the time the applicant was dismissed. I agree with Mr Blairs that, at the very least, the applicant should have been offered ongoing employment as a casual employee. Mr Tunkin's belated offer of casual work was, in my view, a hollow one. Firstly, Mr Tunkin was no longer in control of the business and was in no position to guarantee any ongoing work. Secondly, he could not guarantee what hours the new operator could offer. There was no evidence that Mr Tunkin genuinely pursued a concrete proposal or advance it formerly to the applicant or his representatives.

47 It seems to me that one conclusion able to be drawn in this matter is that the end of the traineeship was a convenient excuse to dismiss the applicant. I draw this conclusion from the following evidence. At that time, Mr Tunkin was attempting to sell the business. The applicant had a workers' compensation claim and had reached an age when he would cost more to employ than a junior casual employee. I accept the evidence of the applicant and his mother that Mr Tunkin told them that he could not afford to keep the applicant on as a senior. This evidence seems entirely consistent with the advertisement for junior staff placed outside the store, at around the same time.

48 It follows that I agree with Mr Blairs' contention that the applicant was dismissed, inter alia, because of his age. Viewed in this way, and having particular regard to s169 of the Act, it would seem unarguable that a dismissal of an employee based on the employee's age, must be unfair.

49 It is trite to observe that the Commission is mandated by s169 of the Act to take into account the principles contained in the Anti Discrimination Act 1977 in the exercise of any, and all of its functions and powers:

169. Anti-Discrimination matters

(1) The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977.

50 The significance of s169 of the Act was referred to in Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2002] NSWIRComm 144:

The operation of s169 was considered by the Full Commission in Re State Personal/Carer's Leave Case (1998) 84 IR 416. It was there held that s 169 was "one of a number of provisions which run through the Industrial Relations Act which together form a scheme designed to incorporate Anti-Discrimination Act concepts into the industrial jurisdiction." Those concepts were considered to be of "fundamental importance" to the operation of the present statutory scheme. The reference to the "principles" contained within the Anti-Discrimination Act in s 169(1) was considered to require the Commission to have regard to the express provisions of the Act. This would, in our view, plainly include provisions such as s 24(1)(b) of the Anti-Discrimination Act , encompassing notions of indirect discrimination.

As was expressly acknowledged by the Full Bench Re Equal Remuneration Principle (2000) 97 IR 177 it is "fundamental human right" that every person is entitled "to be treated equally and fairly in the sense that the person should not be dealt with on the basis of irrelevant considerations such as the person's sex, race, or age, and with a right not to be discriminated against by reference to such considerations". Further, the Full Bench observed (at [43]):

This right is reflected in various statutory provisions in New South Wales. The fixing of a rate of pay for, or the payment of a wage or salary to, a woman where that rate of pay, salary or wage has been fixed differently because of the woman's sex is presumptively an infringement of her human rights and inconsistent with the provisions of the 1996 Act.

51 Of particular relevance in this case are the age discrimination provisions of the Anti Discrimination Act 1977. Section 49ZYB(2) is as follows:

It is unlawful for an employer to discriminate against an employee on the ground of age:

(a) in terms or conditions of employment that are afforded to the employee, or

(b) by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

52 Thus, it can be seen that age discrimination is unlawful in New South Wales. It is appropriate that I should take such a matter into account in respect to this application.

53 In my opinion, the dismissal of the applicant for the irrelevant reason of his age, to use the words of the Full Bench in Re Equal Remuneration Principle Case, is presumptively an infringement of his human rights and inconsistent with the provisions of the 1996 Act. Moreover, to do so in order to secure some collateral advantage, is in my judgment, manifestly unfair.

Procedural Fairness

54 Much attention was given by Mr Blairs to the denial of procedural fairness in respect to the applicant's dismissal. The concept of procedural fairness, while not expressly referred to in the statute, is nevertheless, a factor the Commission may take into account when assessing whether a particular dismissal can be characterised as "harsh, unreasonable or unjust." In Byrne & Anor v Australian Airlines Limited, the High Court, concluded that "it is clear that the use of an unfair procedure may result in a dismissal being 'harsh, unreasonable or unjust.'"

55 In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385, the Full Bench of this Commission said at p389:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

and later, at page 390:

While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust.

56 The above reference to Buckman is Buckman and Another v Burdekin Resources NL (1998) 85 IR 418. In that case, the Full Bench said:

Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness.

57 See also the Full Bench decisions D&R Commercial Pty Ltd v Flood [2002] NSWIRComm 88 and Wilson v Department of Education and Training (2000) 100 IR 1.

58 Relevantly, s88 of the Act deals with matters which might broadly be described as going to issues of procedural fairness. The section is expressed as follows:

In determining the applicant's claim, the Commission may, if appropriate, take into account:

(a) Whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer; whether a reason was given for the refusal to reinstate or re-employ, and

(b) If any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his behaviour or to justify his or her reinstatement or re-employment, and

(c) Whether a warning of unsatisfactory performance was given before the dismissal, and

(d) The nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

(e) Whether or not the applicant requested or re-employed with the employer, and

(f) Such other matters as the Commission considers relevant.

59 One will readily see that s88(f) does not limit the Commission to the matters referred to in the aforementioned sub clauses. The Commission is able to take into account such other matters, which it considers relevant arising from the facts and circumstances of a particular case.

60 I have already referred to the fact that the applicant had no idea he was to be dismissed and had no warning or notice of his dismissal. He was never informed that he would be terminated at the end of his traineeship. Moreover, he was handed the letter of termination by another employee who was not even the author of the letter. Mr Tunkin conceded that it was unusual to hand a letter of termination to an employee without prior discussion. In the result, these matters raise serious procedural issues warranting a finding that the applicant's dismissal was harsh, unreasonable and unjust, both substantively and procedurally.

61 In reaching this conclusion, I would add that the respondent made no claim that the applicant was a poor worker. Indeed, it is reasonable to assume that after three years of employment with an unblemished record, that this employee was a hardworking young man with a conscientious work ethic.

Relief

62 Many decisions of the Commission have emphasised that the policy emphasis of the Act is the reinstatement of an unfairly dismissed employee, see Little v Commissioner of Police (No.2) [2002] NSWIRComm 52. However, the applicant here does not seek reinstatement or re-employment. In addition, a significant factor mitigating against the practicality of reinstatement in this case, is the fact that Mr Tunkin no longer owns the business. It would be wrong, I think, and a denial of natural justice to visit upon an employer an order for reinstatement (or indeed any order of the Commission) without that employer being given an opportunity to be heard. Accordingly, I find therefore that reinstatement would be impractical, and I propose to make an order for compensation.

63 In the exercise of my discretion in assessing the level of compensation, I have had regard for the applicant's age, his length of service and experience, his efforts at securing alternative employment, and the difficulty of finding work in Broken Hill. I determine compensation at 10 weeks wages at $351.40 per week. This amount was agreed by Mr Tunkin to be the average of 35 hours a week and confirmed in the final annual leave payment of 4 weeks wages at $1405.60.

Underpayment Claim

64 Even accepting that the respondent may have been told that full time work for trainees was between 31 - 38 hours a week, it does not sufficiently explain why there were some weeks in the applicant's last 12 months of employment where he worked less than 31 hours. During the course of argument, Mr Blairs relied on the definition of full time work in the Broken Hill Hungry Jack's Agreement 1994 being 38 hours a week. In my view, reliance on the Agreement definition of full time work would apply had there been no traineeship. However, the traineeship must be a factor taken into account in the employment relationship. I have also had regard for the fact that the applicant did not question his hours with either the respondent or his traineeship supervisor. What then, was the applicant's full time hours of work?

65 The applicant was paid 4 weeks annual leave at $1405.66. Mr Tunkin said that this was based on an average of 35 hours a week. The applicant himself accepted that he worked an average of 35 hours a week. Applying that approach, I am prepared to accept the average hours worked by the applicant at 35 hours a week.

66 I am satisfied that the applicant has established a claim for the difference between what he was paid and work for 35 hours a week.

67 I determine that the applicant should be paid the difference between what he was paid and his average hours of 35 hours per week for the 12 months of his second apprenticeship The parties are to confer as to the calculation of this amount. Any disagreement about the calculation shall be referred to the Commission for further argument and if necessary, an order pursuant to s380 of the Act.

Orders

1. Pursuant to ss89(5) and (6) of the Industrial Relations Act 1996, the Commission orders that the respondent, Gateway Investments Pty Ltd shall pay to the applicant, Michael Roy Hoskins, an amount of $3514.00.

2. The above amount shall be paid within 21 days of today.

Further Directions

1. The Commission further directs that the respondent, Gateway Investments Pty Ltd, shall pay to the applicant, Michael Roy Hoskins, an amount representing the difference between what he was paid and work based on 35 hours a week over the 12 months of his second traineeship. There shall be no discount for any week worked in excess of 35 hours.

2. The parties are directed to confer as soon as practicable, but no later than 28 days, to arrive at an agreed calculation of the above amount.

3. In the event of no agreement, liberty to apply is available to both parties.

68 Subject to the above directions, these proceedings are now concluded.

P J Sams, AM

Deputy President

LAST UPDATED: 24/06/2005