T7212
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Terrence James Price and Roadways Pty Ltd
Termination of employment - valid reason for termination of employment - termination unfair because no opportunity given to employee to defend himself - reinstatement impractical - order made for compensation REASONS FOR FURTHER DECISION Background On 1 September 1997 the applicant, Mr T J Price, applied to the President for a hearing pursuant to Section 29(1A) of the Industrial Relations Act 1984. The subject-matter of the application concerned his dismissal by Roadways Pty Ltd on 23 May 1997. The applicant's solicitors also applied for an extension of time pursuant to Section 21(2)(m)(i) of the Act. The respondent employer challenged the substantial application on certain jurisdictional grounds and opposed the extension of time application. On 17 February 1998 I published my Reasons for Decision rejecting the jurisdictional grounds and granting the extension of time application.1 The parties' further efforts to resolve the matter by conciliation failed. Accordingly, the hearing resumed on 27 July 1998. Particulars of the Dispute According to the Applicant At the time of his dismissal Roadways Pty Ltd employed Mr Price as a mechanic and diesel fitter and had done so since March 1995.2 In October 1996, after a period of some matrimonial difficulty, Mr Price said his wife left him.3 A little over six weeks after that event, on 26 November 1996, according to Mr Price, he attended his mother-in-law's funeral.4 After the funeral, he said he drove to his wife's residence where a collision occurred between his motor vehicle and a letter box.5 Subsequently, following a police interview, Mr Price said he failed to pass a breathalyser test. That circumstance led to his later prosecution for allegedly driving with a blood alcohol concentration in excess of .05 per cent.6 The following day Mr Price approached Mr V Green, the Company's general manager, and informed him of the drink driving charge. Mr Price also volunteered the observation that he expected to lose his driver's licence as a consequence of that charge and asked where he stood with his job.7 According to Mr Price, Mr Green told him he was very lucky because, under the new workplace agreement, which had not yet come into effect, any employee who lost their driver's licence would automatically lose their job.8 Ultimately, because of adjournments, determination of Mr Price's case did not occur until 23 May 1997.9 Before that event, however, there occurred two workplace incidents involving Mr Price. In early 1997, not long after Christmas, Mr Price admitted to arriving at work smelling strongly of alcohol. The Company's head workshop mechanic, Mr A Pasten, advised him to go home. Mr Price, who agreed he was in no fit state to be at work, accepted Mr Pasten's advice.10 On a subsequent occasion, again involving alcohol, Mr Price said he knew he should not be at work. He said he admitted as much to Mr Green who, at Mr Price's request, gave him a few days annual leave.11 Mr Price said his problems with alcohol arose directly from emotional stress arising from the circumstances that then surrounded him. In that context he specifically referred to the break up of his marriage; the death soon after of his mother-in-law, for whom he had special affection; and the realisation that, in settling matters with his wife, he would have to sell his house.12 On 23 May 1997 Mr Price received the judgment of the Court of Petty Sessions regarding his drink driving charge. Magistrate Wright imposed a fine and disqualified Mr Price from holding a driver's licence for a period of two years.13 The next day, according to Mr Price, he told Mr Green he had lost his driver's licence. Mr Price said Mr Green told him he would have to finish up "and he finished me up there and then". Mr Price said Mr Green did not give him any opportunity to put a submission to him or to any other Company person regarding his job. 14 Mr Price said that, according to his Employment Separation Certificate, the Company dismissed him on the grounds of "unsuitability for this type of work" with a note appended stating "Loss of licence - required to carry out responsibilities of position".15 However, according to Mr Price, when the Company advertised in "The Mercury" newspaper on 22 March 1997 for the position of diesel fitter, there was no stipulation that possession of a current driver's licence was a prerequisite for employment.16 Remedy Sought Mr Price asked for reinstatement. The Issues W M Hodgman QC with A Valentine for the applicant:
M O'Farrell and T Baxter for the respondent:
The Applicable Law It was common ground between the parties that I should hear and determine this matter according to the law as it stood at the time of the applicant's dismissal. Was the Termination Effected at the Initiative of the Employer? W M Hodgman QC for the applicant: The day after the Police charged him with drink driving, Mr Price told Mr Green of that occurrence. Mr Green claims that Mr Price gave notice. However, Mr Price's evidence is that, at the time, he was distressed and he cannot now remember everything that he might have said. Mr Price was so distressed that day because of his matrimonial, alcohol and police problems that he might well have said anything. The bottom line, in any event, is that the Company did not terminate Mr Price's employment in November 1996. If Mr Price ever gave notice, it was not accepted by anyone on the employer's behalf. The fact of the matter is that, after that date, the Company continued to employ Mr Price for a further six months: five months part-time and one month full-time. The question of "notice" is a red herring. M O'Farrell for the respondent: If the Industrial Relations Act 1984 is to apply at all, the applicant must show that his termination occurred at the instance of the employer: Saarinen v University of Tasmania (1997).17 In the present case that is impossible because the undisputed evidence is that, when Mr Price went to see Mr Green to inform him of the breathalyser charge, he gave notice. Mr Green may have said that Mr Price could stay in his employment until the outcome of the breathalyser case was known but, even so, it was Mr Price who gave notice or resigned. There is no requirement for an employer to accept notice. The giving of notice is an employee's right. A question may sometimes arise about whether an employee can withdraw notice, once given. However, in the present case there is no evidence that Mr Price ever withdrew his notice. Mr Price gave his notice voluntarily and that is an end to the matter: Gunnedah Shire Council v Grout (1995) 134 ALR 156. All the probabilities in connection with notice favour the employer. If Mr Price knew nothing of the Company's requirement for him to hold a driver's licence to keep his job, there was no reason for him to see Mr Green. In the circumstances, his visit to Mr Green must have arisen as the result of a belief on Mr Price's part that there was some connection between his employment and holding a driver's licence. Findings I accept the contention that, for purposes of the ILO Convention,18 "termination of employment" means termination at the initiative of the employer. Mr Price's evidence is that, the day after his breathalyser offence, he went to Mr Green's office at about 8:15am. Mr Price said he told Mr Green of the offence, informed him that there was a likelihood he would lose his driver's licence and asked him "how do I stand with my job?"19 According to Mr Price's recollection, Mr Green responded along the following lines:20
In cross-examination, Mr Price conceded he could remember saying to Mr Green at the time something to the effect that the current drink driving offence would be his third and that he had no hope of getting another hardship licence. In cross-examination, Mr Price also acknowledged that, when he first spoke to Mr Green, he could not recall saying something like "I have to give notice". He did agree, however, that even though he could not remember exactly what he did say to Mr Green that day, he might have said, "I think I will give my notice, or some words to that effect".21 Mr Green's recollections of the same conversation are somewhat different. He recalled that Mr Price told him of the breathalyser offence, said he would have to give notice, and that he intended to ask Mr Hodgman to represent him. Mr Green's next response, according to his evidence, was to effect that "well he'll get it adjourned three or four times for you so why don't you wait till you actually lose your licence before you finish".22 In cross-examination Mr Green vigorously rejected any suggestion that, at the time, Mr Price also told him he had been drinking, and was muddled and distressed because of problems with his wife.23 The evidence of Mr Manson, the Company's Administration Manager, is intriguing. That is because he recalled that, the day after Mr Price's discussion with Mr Green, the latter informed him (Manson) that "Terry [Mr Price] had in fact blown a breathalyser, had come up to give notice". He then added that "Vic [Mr Green] ... suggested he could stay on until such time as he lost his licence".24 There is no reason for me to disbelieve any of the witnesses in respect of this issue. Whether Mr Price actually told Mr Green of his drinking and matrimonial difficulties when they met that morning I cannot say. There is a very strong likelihood however, and here I accept Mr Hodgman's submission, that Mr Price was in a confused state of mind given the circumstances of the preceding day. That is, the funeral he attended, his involvement in the accident at his wife's residence, and his very high breathalyser reading of .26. For those reasons I accept Mr Price's evidence that he could not remember exactly what he said to Mr Green on the day of their meeting. On a balance of probabilities, I believe Mr Price most likely talked to Mr Green about giving notice, but whether he actually intended to give notice I cannot say. In that sense, I think the circumstances of this case are not like those of Gunnedah Shire Council v Grout, in which the Court found that "although he was stressed, Mr Grout knew what he was doing and wanted to resign".25 The most likely course of events in my opinion, again on a balance of probabilities, is this. Whether Mr Price said he would have to give notice or merely talked about giving notice, Mr Green-having regard to his evidence and that of Mr Manson-told him, in effect, that he need do nothing about the matter until he actually lost his licence. This conclusion allows me to make the following findings. If Mr Price merely talked about giving notice, then he did not give notice at that time; but, if he did give notice, then Mr Green effectively declined to accept it by allowing the contract of employment to remain on foot, as he did, for a further six months. In that regard I do not accept Mr Green's contention that he simply extended Mr Price's period of notice. He did not tell Mr Price that was what he was doing: he just said, "why don't you wait" and Mr Manson's evidence is that Mr Green "suggested he could stay on". In this respect I also rely on the Employment Separation Certificate26 that Mr Manson said he completed and signed,27 which states that Mr Price did not cease work voluntarily. For the above reasons, I reject the respondent's contention that Mr Price gave notice when he informed Mr Green of the breathalyser charge. It follows, in the circumstances, that Mr Price's dismissal was a termination effected at the initiative of the employer. I find accordingly. Did the Employer Unfairly Terminate the Employee's Contract of Employment? W M Hodgman QC for the applicant: In dismissing an employee modern society obliges an employer to apply the fundamental rules of natural justice. In the present case, however, the day after Mr Price lost his driver's licence in the Magistrate's Court, the employer, despite the pleas of Counsel to the contrary, terminated Mr Price's contract of employment without any hearing at all. Mr Price, acting on the instructions of his legal advisers, did not argue with Roadways Pty Ltd. Even so, notwithstanding the further intervention of Counsel, the Company confirmed on the following Monday that the termination would stand. What the Company did was peremptory, arbitrary and contrary to natural justice. Whether or not it was a condition of Mr Price's contract of employment that he hold a current driver's licence the Company, in dismissing him because he did not have such a licence, clearly terminated Mr Price's employment for reasons relevant to his capacity or conduct. According to the ILO Convention, the Company needed a valid reason in order to terminate Mr Price's employment. The Company did not have a valid reason, however, because the evidence shows that Mr Price did not require a driver's licence to perform over 90 percent of his work. Even when he had to go off-site Mr Price was, on most occasions, accompanied by some person who also held a driver's licence. Only very rarely did the Company require Mr Price to go off-site on his own. The Company, in an attempt to refute Mr Price's estimate of his on-site work, relied on work record extracts from a vehicle log book.28 However, those records do not help the respondent very much at all-in fact they assist the applicant. For example, the record, which begins in April 1995, shows at best intermittent or irregular driving throughout 1995-40 of the 52 trips entered in the log book relate to Mr Price-until the time of his accident (about October 1995). After that time Mr Price's use of the vehicle dropped dramatically until he returned to work in 1996. In 1997 his use of the vehicle was virtually non-existent. In fact, for the two year period 29 August 1996 to 18 May 1998, only five of the 17 entries in the log book relate to Mr Price. Far from contradicting Mr Price's evidence, the Company's own records show that his driving duties were very limited indeed. The evidence also shows that the Company retained the services of two other employees, Mr R Williams and Mr R McCarthy, even though they had lost their driver's licences. The Company even allowed its former managing director's son, who was at one time a Company employee, to drive within the precincts of the Company's headquarters after he too had lost his driver's licence. Unless the Company were to encourage members of the general public to drive in and out of its premises at any time of their choosing, the Company's premises are prima facie private property. Insurance obligations aside, it is not necessary to possess a driver's licence to drive on private property. As for the insurer's requirements, they do not assist the Company in the present circumstances because they were not put up at the time and did not come forward until November 1997, months after Mr Price's dismissal. The ILO Convention also obliged the employer, before terminating Mr Price's employment, to afford him a reasonable opportunity to defend himself against the Company's allegations. The Company's actions denied Mr Price the opportunity to point out that, as he said in his evidence, he performed 90 percent of his work at the depot, for which purposes he did not need a driver's licence. On the occasions when he did have to go off-site, he was almost invariably accompanied by another person who would have a driver's licence. Alternatively, the Company gave him no chance to suggest other options, ie cut back his hours or, if necessary, take away the $8,000 per annum loading that Mr Green said Mr Price received for off-site work. Then there are the circumstances in which the Company set in motion steps to appoint Mr Price's successor. Before the Magistrate's Court hearing, the facts of Mr Price's breathalyser case suggested there was no certainty the Court would convict him in a fully contested hearing. Should the Court not convict him there was, of course, no chance that he would lose his licence. In a clear case of unfair dismissal, Roadways Pty Ltd advertised in "The Mercury" newspaper of 28 March 1997 for a diesel fitter-Mr Price's replacement-nearly two months before proceedings in the Magistrate's Court concluded. In addition, the advertisement contained no condition or provision whatsoever to effect that the successful applicant would need to possess a current driver's licence. Finally, there is the matter of workers' compensation. In 1995 Mr Price suffered a severe industrial accident to his leg. He was off work for several months and returned to full-time work only four weeks before the Company terminated his employment. In fact, although Mr Price had received full compensation for several months, at the time of his dismissal the determination of a lump sum figure for compensation remained outstanding. However, in the Employment Separation Certificate, the Company wrongly answered "No" to the questions "Has a claim been made or is a claim likely to be made for compensation?" and "Did the person get or is the person getting payment(s) of compensation?". M O'Farrell for the respondent: On no view of the evidence could the Company's termination of Mr Price's employment be seen to be unfair. That is because at all material times Mr Price was aware that Roadways Pty Ltd would not continue to employ him without he possessed a current driver's licence. It is clear that the reason why Mr Price went to see Mr Green the morning after his breathalyser charge (to inquire about his employment status) is because he knew there was some real connection between his possession of a current driver's licence and his employment. Otherwise, the conversation would not have occurred at all, since it served no purpose. In any event, during the time the proceedings in the Magistrate's Court stood adjourned, Mr Green left Mr Price in no doubt that, if he lost his licence, he would be without a job. At any time following his initial discussion with Mr Green, it was open to Mr Price to approach Roadways Pty Ltd with a request that his employer find other work for him or permit him to just work on site. Mr Price did not do that, remaining absolutely silent until after the end of the Court of Petty Sessions proceedings. Mr Price opted for that approach because, should his case fail, he wanted Counsel to be able to plead on his behalf in mitigation that if he lost his licence he would also lose his job. It was, therefore, clearly to Mr Price's benefit that he should be at risk of losing his employment. In the circumstances, it is duplicitous in the extreme for Mr Price to now ask the Commission to give him back his job when, on his instructions, Counsel put a contrary proposition to the Magistrate's Court in a legal proceeding. There was never any question that Mr Price knew what the score was regarding his possession of a current driver's licence and he had ample opportunity to do something about the matter. Perhaps Mr Price did not receive classic procedural fairness from the Company. On the other hand, however, with the kind of relationship one could infer he had with Roadways Pty Ltd, it is almost ridiculous to think he could not have gone to the Company and discussed his problem. In that regard, there is no evidence that suggests the Company is anything other than a benevolent employer. Nothing arises from the fact that the advertisement did not refer to the need for applicants to possess a current driver's licence. Similarly, the advertisement said nothing about wage rates. All the advertisement did was ask appropriately qualified persons to apply for a job. At subsequent interviews the applicants could find out about the terms and conditions that would apply. In relation to his employment by Roadways Pty Ltd, Mr Price's need to possess a current driver's licence could arise in two ways. It could arise as an express term of his contract of employment, ie by way of written or oral stipulation. It could also arise as a condition of his employment. In that regard, some assistance is available from the recent High Court case of Qantas Airways v Christie (1998) 152 ALR 365. In that case Mr Christie, an airline pilot, complained that his employment came to an end because his age (60 years) prevented him from flying on particular international routes. In the circumstances of that case, which concerned the Commonwealth Industrial Relations Act 1988, the Court accepted that age was capable of being an inherent requirement of the position. In coming to that conclusion Brennan CJ, agreeing substantially with Gaudron J, said:
In the present case, possession of a current driver's licence was an inherent requirement of Mr Price's position since, without it, he could not continue to perform the duties that he previously undertook. The extracts of the Company's vehicle log book show that when he was not on workers' compensation Mr Price, in broad terms, used the vehicle "just about more than anybody else".29 In addition, Mr Price acknowledged that Roadways Pty Ltd paid him an allowance of $8,000 per annum to perform work off-site, sometimes after hours. The Company's employment of Mr Price depended upon his ability to perform his duties both on-site and off-site. To go off-site, of course, Mr Price needed a current driver's licence. In those circumstances, it is ridiculous as a matter of logic to argue, as Mr Price does, that he performed 90 percent of his work on-site. The remaining 10 percent of his work that he performed off-site was the absolutely critical requirement of his employment-a requirement for which he needed to have a current driver's licence. In any event, even if there was procedural unfairness on the part of Roadways Pty Ltd, the decided cases show that such unfairness must actually affect the action taken. In the present case procedural unfairness, if it existed, would not have affected the outcome, so far as it concerned Mr Price's continued employment, because it was not causative of what happened to him. Mr Price would have lost his job anyway because he no longer held a current driver's licence, an essential requirement of his employment. There is no substance to the submissions regarding the Employment Separation Certificate. Even if its content was inaccurate, the document, like the whole issue of workers' compensation, has no relevance to the question of whether or not Roadways Pty Ltd unfairly dismissed Mr Price. The evidence before the Commission is that Mr Price was off workers' compensation well and truly before he left the Company's employment. Findings It seems clear enough to me on the evidence that, if the Company's requirement of Mr Price that he hold a current driver's licence was not an express term of his contract of employment, it was certainly an implied or inherent term. In that regard, I base my conclusion on Mr Price's own evidence that Roadways Pty Ltd paid him an allowance of $8,000 per annum to perform work off-site, sometimes after hours. Plainly, Mr Price could not satisfy that term of his contract of employment unless he possessed a current driver's licence. It is no answer, in my opinion, to suggest, as Mr Price did, that he performed 90 percent of his work on-site. The issue that confronted Mr Price in that regard was not the proportion of work performed on-site or off-site, but the fact that his contract of employment required him to work off-site on occasions. The Company evidently believed such a facility was important, because it paid Mr Price a substantial allowance to ensure its availability. In those circumstances, the frequency with which the Company called on him to actually perform the particular task, as a proportion of all his work functions, is beside the point. The same can be said, I think, about the fact that, from time to time, another licensed driver apparently accompanied Mr Price on his off-site trips. Those same contractual arrangements, I have no doubt, are also the reason why Mr Price, the day after his breathalyser charge, went to see Mr Green to ask where he stood with his job. The available inference from that action is that Mr Price knew-most likely, I suspect, because of his $8,000 allowance-that there was a real and substantial connection between his possession of a driver's licence and his job. Otherwise, there is simply no credible reason for him to have taken that course of action. In my opinion, once Mr Price actually lost his driver's licence he also lost his ability to satisfy the terms of his employment contract by performing the occasional off-site duties for which the employer paid him an allowance. In the circumstances, the option to terminate Mr Price's contract of employment or to take some other action was exercisable entirely at the Company's discretion. The Company chose to terminate his employment. In doing so, in my opinion, Roadways Pty Ltd possessed a valid reason for its actions, ie that because he no longer possessed a current driver's licence, Mr Price was unable to fulfil a principle term of his contract of employment. Accordingly, I find that the Company had a valid reason for terminating Mr Price's contract of employment. Moving on, Mr Price said in his evidence that the morning after the Magistrate disqualified him from holding a driver's licence:30
Mr Price added that Mr Green terminated his employment without giving him any prior opportunity to put forward reasons why the Company should not take that action. There were some differences in the recollections of Mr Price and Mr Green as to what was actually said on that occasion. However, there was no dispute that Mr Green terminated Mr Price's employment immediately upon learning that the latter had lost his driver's licence. There was no suggestion put to me that it was not reasonable for Roadways Pty Ltd to provide Mr Price with an opportunity to attempt to persuade the Company not to dismiss him. It is undoubtedly the case-as Mr Price himself confirmed-that Mr Green on a number of earlier occasions told him he would lose his job if he lost his driver's licence. I cannot see how that fact helps the employer's position in the present circumstances because such advice does not, in my opinion, amount to providing Mr Price with a reasonable opportunity on the day in question to defend himself in respect of the Company's announced intention to end his employment. It is quite clear on the evidence, in my view, that Mr Green summarily terminated Mr Price's employment in a manner that deprived him of a prior opportunity to be heard in his own defence. It is possible, as Mr O'Farrell contended, that even if Mr Green had given Mr Price such an opportunity, there was nothing Mr Price could have said-since he could not claim to be possessed of the required current driver's licence-that might have altered the ultimate outcome. Nevertheless, I am not prepared to rule out the possibility, faint though it may have been, that had he been given an appropriate opportunity, Mr Price might have been able to persuade the Company to take some different course of action.31 However, in my opinion, that is a consideration that, as Mr O'Farrell admitted, really goes to the question of remedy. It remains for me to say that, in considering this question, including whether there was a valid reason for Mr Price's termination, I did not find it necessary to discuss the parties' submissions regarding the Company's actions in advertising for Mr Price's replacement, the content of the particular advertisement, or the issue of workers' compensation. I have however, in accordance with Section 31(1A) of the Industrial Relations Act 1984, taken into account the standards of general application contained in Part II of the International Labour Organisation's Convention concerning Termination of Employment at the Initiative of the Employer. In conclusion I find that, on the evidence, Roadways Pty Ltd unfairly terminated Mr Price's contract of employment in that, even though it had a valid reason for dismissing him, the Company denied Mr Price the opportunity to defend himself before taking a final decision to terminate his employment. Should the Commission Reinstate the Applicant? W M Hodgman QC for the applicant: There is no suggestion that the Company dismissed Mr Price because of misconduct, or his drinking problem, or for any reason other than the matter of the loss of his driver's licence. No one said Mr Price was not a good worker or that he failed to do his job properly. It is no answer in the circumstances for the Company to suggest that Mr Price's personal problems might be a bar to reinstatement. He is totally abstaining from consumption of alcohol and the strains and stresses of his marriage breakdown are diminishing. Mr Price's excellent work references show that he is a good worker. There is no substance in the Company's suggestion that it cannot reinstate Mr Price because, as a consequence, the person appointed in his stead would lose his job. The evidence before the Commission is that, on occasions, there have been three persons working in Mr Price's direct and immediate area. Similarly, it is a red herring for the Company to suggest that it cannot reinstate Mr Price because he has sold some or all of his tools. Mr Price is clearly capable of buying more tools. M O'Farrell for the respondent: Having regard to the chronology of events surrounding this case, it would be oppressive on the employer for the Commission to now order reinstatement. Mr Price finished work on 23 May 1997. Through no fault of the Company the matter did not find its way to the Commission until 1 September that year. There then followed a number of hearings that dealt with issues of jurisdiction that concluded on 7 November 1997. The Commission resolved those issues by decision of 17 February 1998. Finally, after a failed attempt at conciliation, the matter came back to the Commission for further hearings, which took place between May and July 1998. In the circumstances, the employer should not be visited with an order that would effectively put Mr Price back where he started. The Commission should also have regard to Mr Price's drinking problem. Even though he may now be an abstainer, his record shows three convictions for drink driving, in which his blood alcohol readings were greatly in excess of the permitted level. Furthermore, the evidence shows that, on at least two occasions, he had to be sent home from work, so seriously was he affected by alcohol. In a workshop where there is a requirement to use heavy machinery, Mr Price's problem represents a potential workplace safety risk. Mr Price may well be ready, willing and able to return to work. However, his own evidence is that he sold his tools because of financial hardship. Nothing was put to the Commission on Mr Price's behalf as to how he might, in those circumstances, find the financial resources with which to fund the purchase of a new set of tools. Then there is Mr Green's unchallenged evidence that, following Mr Price's departure, the Company sold its wood-yard business. As a result of that transaction the Company now has less work available for mechanics. But, in any event, without a current driver's licence Mr Price cannot fully perform the duties required of him. For example, he cannot test machinery and he cannot drive vehicles that he may have repaired, even on site, because the Company's insurance policies do not permit it to allow such activities where the employee concerned does not possess a current driver's licence. Findings I have already found that the Company's termination of Mr Price was for a valid reason, ie because he no longer possessed a current driver's licence, Mr Price was unable to fulfil a principle term of his contract of employment. Mr Price's position in that regard remains unchanged. In the circumstances and after having regard to the requirements of Section 31(1A) of the Act, I find that reinstatement of Mr Price to his former position is impractical. Should the Commission Award Compensation? W M Hodgman QC for the applicant: If the Commission should find that it cannot reinstate Mr Price, then it should award very substantial compensation. The Company's arbitrary termination of Mr Price's employment means that, in his mid-forties, he is now on the labour scrap heap. Every day, week and month that now passes means it will be harder than ever for him to obtain gainful employment. The Company paid Mr Price $1,300 gross per fortnight. Since his termination, Mr Price has received $300 per fortnight by way of unemployment benefits-a loss to him of $1,000 per fortnight. In those circumstances it is laughable for the Company to suggest that, should the Commission make an order of compensation at all, the resultant amount should not exceed the equivalent of four week's salary. Mr Price has tried to find work from numerous companies, including those who previously employed him and gave him good references.32 His only success, however, was a few hour's work in a Mobil service station mechanical section. In all the circumstances compensation should start at $150,000. Because the Company treated Mr Price so unfairly, it is not enough to merely say "you can't have your job back but here's $5,000 compensation".33 M O'Farrell for the respondent: The sum of $150,000 that Mr Price seeks by way of compensation is equivalent to something in excess of four years' salary, based on Mr Price's salary at the time of his termination. There is no decided authority that supports such a claim. In New Town Timber & Hardware Pty Ltd v Gurr and Gozzi (1995) 5 Tas Rep 71 Green CJ observed that:34
The correct principles are set out in the Full Bench decisions of this Commission in Capital Hill Corporation Pty Ltd v O'Connor35 and Fossey's (Australia) Pty Ltd v the Australian Liquor, Hospitality and Miscellaneous Workers' Union, Tasmanian Branch36 and in the Australian Industrial Relations Court decision of Wilcox CJ in Nicolson v Heaven & Earth Gallery (1994) 126 ALR 233. Looking at those cases, the real question in the present circumstances concerns how long Mr Price would have remained in employment with Roadways Pty Ltd, even if the issue of his driver's licence was not a consideration. In terms of Nicolson it would be unrealistic for the Commission to automatically assume that, had the Company offered Mr Price an opportunity to defend himself, his employment would have continued indefinitely. In the circumstances, should the Commission decide to award Mr Price compensation on the basis of the Company's procedural irregularity, it should not order a large sum. Because of his drinking problem, it would not have been long before the Company dismissed Mr Price in any event, on the grounds of conduct and performance. Even if one used a rule of thumb measurement of, say, two or three weeks per year of service, the most he would receive would be around the equivalent of four to six week's salary. That is because there is nothing in the employer's conduct in this case that would warrant the order of a greater amount. On that basis, if the Commission also takes into account the fact that Mr Price received one week's pay in lieu of notice, the equivalent of one month's salary would be exceedingly adequate. Findings In the present matter Roadways Pty Ltd denied Mr Price the opportunity to defend himself before taking the final decision to terminate his employment. Had he received an opportunity to advance reasons why the Company should not dismiss him there was some chance in my opinion, even if only faintly so, that he may have been able to convince his employer to take a different approach. Accordingly, in all the circumstances of this case, I believe it is appropriate to make an order for compensation. In that regard, however, I take into account the fact that, at best and in the absence of a current driver's licence, Mr Price's chances of encouraging the Company to continue his employment were slight. Because the likelihood of Mr Price's employment continuing was very small, I accept the thrust of Mr O'Farrell's submission that compensation should be minimal rather than substantial. Having regard to all the facts and circumstances of this matter, I assess appropriate compensation at the sum of $2,500. ORDER PURSUANT TO the powers conferred on the Commission by Section 31(1B) of the Industrial Relations Act 1984 I HEREBY ORDER that the respondent employer Roadways Pty Ltd, Jackson Street, Glenorchy, Tasmania 7010, in full and final settlement of the industrial dispute referred to in application T No 7212 of 1997, pay to Mr Terrence James Price, 2 Hannan Place, Bridgewater, Tasmania 7030 through his agents, Ware and Otlowski Barristers and Solicitors, GPO Box 643G, Hobart, Tasmania 7001, the sum of Two Thousand Five Hundred Dollars ($2,500) on or before the close of business on Wednesday 14 April 1999.
B R Johnson Appearances: Date and Place of Hearing: 1 T7212 of 1997, Reasons for Decision 17 February 1998. |