TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Quentin Harry Bradley
(T10851 of 2003)

and

Robert William Reece trading as
Somerset Discount Tyre Service

Industrial dispute - alleged unfair termination of employment - termination at the initiative of the employer found - absence of valid reason for termination - recommendation

REASONS FOR DECISION

(1) On 16 May 2003, Quentin Harry Bradley (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Robert William Reece trading as Somerset Discount Tyre Service, arising out of the alleged unfair termination of his employment.

(2) The matter was listed for a conciliation conference on 27 May 2003. Mr B Trafford, a solicitor, sought and was granted leave to appear for the applicant. Mr J Dewar, a solicitor, sought and was granted leave to appear for the employer. An initial attempt to resolve this matter through conciliation was unsuccessful and the matter was set down for hearing on 3 June 2003.

(3) Mr Bradley, now aged 24, left school at age 13 to take up a full-time job in the dairy industry. He had subsequently held approximately five positions in farming and mechanical fields. Immediately prior to accepting a position with Somerset Discount Tyre Service Mr Bradley had been employed on a casual basis as a trade's assistant in the automotive industry. He does not hold any formal qualifications.

(4) According to his evidence Mr Bradley had never walked off the job, been sacked or had a confrontation with his employer in any of his previous positions.

(5) Mr Bradley successfully applied for a position with Somerset Discount Tyre Service and commenced employment on 13 January 2003. He said that the attraction of the position was that it had the security of being full-time.

(6) The position involved a 38-hour week plus some Saturday work every second weekend. The rate of pay was $459 per week. There was an initial trial period of three months to assess suitability. It is common ground that the employer was well satisfied with Mr Bradley's performance and his employment effectively "ran on" at the conclusion of the trial period. Thus for the purposes of this application, Mr Bradley is a full-time employee engaged on a permanent, or perhaps more accurately, indefinite basis.

(7) Late on Monday 28 April, Mr Bradley was instructed by his employer to repair a tyre. Through circumstances outlined later in this decision this task was not completed prior to Mr Bradley leaving work at 5.30pm.

(8) The next morning [29 April] there was a discussion/altercation between the employer and Mr Bradley concerning the non-completion of this task. There is conflict in the evidence as to what was actually said in this discussion. Notwithstanding this conflict, Mr Bradley immediately left the premises believing, according to his evidence, he had been terminated.

(9) Later that day Mr Bradley sought legal advice and instituted proceedings resulting ultimately in this hearing.

(10) The position of Mr Reece is that Mr Bradley was not terminated at the initiative of the employer, but through his own actions, Mr Bradley effectively resigned. As succinctly put by Mr Trafford, the question to be determined is, "did he jump or was he pushed".

The Evidence

(11) Evidence was taken from the following witnesses:

• Quentin Harry Bradley, the applicant.
• Robert William Reece, proprietor of Somerset Discount Tyres for the past 11 years.
• David William Reece, son of Mr Bob Reece and Sales Manager of the business for the past 18 months.

Mr Bradley's Work Performance

(12) Prior to the incident on 28 April, it is apparent that the employer was well satisfied with Mr Bradley's work performance. Mr Bob Reece said:1

"And what was the basis upon which you took him on; what was his job to be and was it to be a permanent position from day one? Just what was the story there?---I gave him three months trial and then I said I would discuss it after three months, but I was very impressed with his work, he was always on time, he was never late."

(13) And later:2

"And how did things go during that three months?---His work was excellent, you know, I couldn't fault it.

Right?---He was good, you know, everyone has a problem now and again, you know, with a come back or something like that, wouldn't matter what your game is, whether it's me or Allison in the office there's always a problem somewhere. But his work was good, he was never late, he was, yes, he was good.

Did you have any hesitation about keeping him on after the three months was up?---Well, I didn't even worry about it, I just let it keep going because he was good, yes, not a problem.

So are you saying that the fact that you said nothing to him was an indication of how satisfied you were?---Yes, yes."

(14) Mr David Reece said:3

"Okay. Did you have any problems with Mr Bradley yourself?---Absolutely not. He was a very good worker."

(15) Mr Bradley said that apart from a couple of minor incidents involving smoking in the workshop, he had never been told of a problem concerning his work performance.

(16) Mr Bradley said that he had been disturbed or upset by a number of incidents in which he considered that Mr Bob Reece had spoken to him in an unnecessarily abrupt manner. Indeed one such incident had occurred on 28 April, prior to the tyre repair instruction. Mr Bradley said that he was concerned that these incidents remained unresolved in that "every time he [Mr Reece] would walk away from me, walk away from the situation".4

The 28 April Incident

(17) The evidence of Mr Bob Reece is captured in the following exchange:5

"I want to bring you up now to 28 April, which was the Monday, and which was the day when as I understand it you asked Quentin to fix this tyre. Can you tell us please what you remember about that incident?---Yes, sure. Yes, the boys had just locked up about 5 o'clock, Quentin always helps Troy lock up around the back and Troy's in charge of the workshop out the back so he doesn't leave till it's locked up. If there's anything goes wrong, well, Troy's got to answer to me, I've got to answer, you know, discuss it with him. He came round the front and then I just said, "Look, Quentin, there's a tyre there that's got to be fixed by 5.30 because the guy's coming in, in the morning at 7.30 to go down the Cradle Mountain," I said, "He's got to have a spare," and he said, "Yes, not a problem." And I knock off at 5 so I said, "Right," went to the office and said, "See you guys," and I'm off, so I left.

What was your understanding as a result of your conversation with Quentin as to whether that job would be done that night?---Well, he said, "Yes, not a problem," I thought well, it'll be right.

And that was your expectation?---Yes.

What happened the following morning?---When I got there the bloke was waiting for me, it was 7.30, I usually get there about 7.30 to try and get things organised, and he was there so I raced round the back and opened the doors and the tyre wasn't done and I said, "Oh, geez," I said, "We've got a problem here," and he said, "Oh, why" and I said, "Your tyre's not ready." He said, "Oh, geez, I can't go down to Cradle Mountain without the tyre," and I said, I had a look at it and it had a big patch in it or something and the tube was there and it was - anyway when I looked at it the tyre was no good anyway so probably should have had another tyre on it, I guess, I don't know. I raced around the back and found a spare which fitted his car but it wasn't - it would have got him out of trouble, yes, so within five minutes I guess he was gone."

(18) Mr Bradley's recollection of this incident was as follows:6

"What happened?---He come to me roughly about 10 past 5 and I was still locking up around the back, he told me that he needed a tyre, a puncture repair around there, it's sitting out there, and I said, 'Fair enough, I'll just finish locking up and I'll go around and start on it.' And that's what I did, I went around and started on it, it come to about 25 past and I had the tyre half done, I was waiting for the glue to dry so I finished locking up, it was knock-off time. I went out, I seen David Reece, his son, who was sitting in front of the computer at the last door that I shut, and I said to him, 'That tyre's only half done but it is sitting there in order for the boys to finish in, which would only take a couple of minutes to finish in the morning,' and David Reece said, 'Fine.' "

(19) Mr Bradley denied that he had been told that the job had to be finished prior to knock-off, as the customer was to collect the tyre at 7.30am the next day.7

"Thank you. Now, the fact is that Bob told you that these people needed the tyre because your recollection is they were going to the West Coast, yes? And I am putting to you also that he told you that the job had to be finished that night because they were coming in at 7.30 the next day to pick up the tyre?---No, he didn't, he definitely didn't say that to me."

(20) In relation to the glue drying process Mr Bradley said:8

"You also stated that you had to wait for the glue to dry?---Yes. I rolled it but I still wasn't happy with the way the glue was drying, like, it was a bit slow taking off so that's why I just sat it there on top of the tyre so it was nice and flat so in the morning it would be perfectly dry and it would be right to fix, but I did roll it there for quite a while trying to get it flat."

(21) There are two issues of significance, which, on the evidence, are in conflict.

(22) Firstly, at what time was the instruction issued? Around 5.00pm on Mr Reece's recollection, or closer to 5.10pm on Mr Bradley's evidence?

(23) Secondly, was it made clear that the repair had to be finished that day?

Tuesday 29 April

(24) Mr Bradley's recollection of events commencing at approximately 8.50am was as follows:9

"Which day was that?---That was on the Tuesday. I turned up for work and he told me that he needed to speak to me about something, so - but he just didn't have time then. I worked for about half an hour and then I noticed Bob come around the back driving a car for a wheel alignment. There wasn't much going on so I went and seen him and I said, I asked him, "What did you want to speak to me about," and he told me that a tyre that I was meant to have fixed the night before and that if I'd come to work any earlier he would have sacked me on the spot because the bloke wanted the tyre finished at 7.30.

How would you describe this conversation; was it a friendly conversation?---No, it was definitely not friendly. He was pretty aggressive about it, he wasn't happy about the tyre not being finished.

Can you please recite, as best you can remember, exactly what was said to you by Mr Reece and what you said in response?---He just said that if I didn't - he said that if I'd turned up any earlier he would have sacked me then and there and I said, "Well, why didn't you," and there was no answer to that. He started walking away and I told him, you know, "Please don't walk away from this conversation, we need to talk about this," and - - - 

Were you angry at this time?---No, I was trying to, I was keeping calm because I really wanted to talk about this situation, like, I might have been able to fix it in the future if it was my problem. Then, yes, he turned back around and he told me that he could speak to me and tell me what to do the way he wants.

Can you remember his exact words at all?---He just said that he could tell me and speak to me the way that he wants.

And what was your response to that?---I was a bit stunned when he said that and I just said, "Look, you can't do that, Bob, you just can't," and he said, "Yes, I can," and I said, "You can't," and then he just told me to get my gear and go.

Was that a surprise to you?---It was, I was stunned, and then, yes, I walked - and I said, "You just can't do that," and I walked away to get my car so I can get my tool box out of the garage and he said, "What are you going to do, something like you did to Diamond Drilling," and at this stage I was turning around to look at him, and I looked at him and then I just shook my head and I walked away, and I grabbed my car, back into the workshop, grabbed my tool box, went around the front and filled out my paybook and left."

(25) And later:10

"So you have stated that Mr Reece told you to get your stuff and go, or words to that effect?---Yes.

How do you know that he was serious and that he was not joking or that it was not a comment that was said in the heat of the moment?---He was looking me straight in the eye and he was pretty serious, he was really close to me, yes.

Did you ask him if he was seriously telling you to leave?---I just said, "You know you can't do that," and he said, "Yes, I can," yes, I just gathered to take it as serious, just the way he said it and looked at me."

(26) Under cross-examination Mr Bradley agreed that Mr Reece had not used the expression "You're fired". Rather, Mr Reece had told him to leave.11

(27) Mr Bradley said the conversation took place whilst both were walking over a distance of 10 to 20 metres.

(28) There is a minor conflict in the evidence in that Mr Bradley asserts that he approached Mr Reece immediately after Mr Reece parked a vehicle in the wheel alignment area. Mr Reece agreed that he did park the car, but then went back to the office, returning a couple of minutes later in the company of his son David. As the evidence of Mr David Reece corroborated this, I accept the evidence of Mr Bob Reece on this point. The time frame between leaving the parked car, going to the office and returning was so short that Mr Bradley might not have noticed it.

(29) The following is Mr Bob Reece's recollection of what happened next:12

"So I just take you back now to when you were walking around with David, just take the story from there?---Right. When I was walking down to the second-hand tyres Quentin sort of approached me and said, "Right, what's our problem, or what have we got to do or what's happened?" I said, "Well, I'm not happy with what happened last night." I told him the position, you know, I said, "The bloke come in and the tyre wasn't ready," and he said, "I knock off at 5.30." I said, well - and these are not quite, you know, I don't know whether they're exact words or not now because you, but he just said - - - 

I know that is hard but I do want you to think quite carefully about the way the conversation went?---Oh, yes. You know, he said, "I knock off at 5.30," I said, "Look, Quentin, I told you specifically that I wanted that tyre done," and he said, "I knock off at 5.30, that's when I go," and I said, "Well, that's a poor attitude," and he said, "Look, I don't care about your job, it doesn't mean anything to me," and then the conversation sort of went on a little bit more and I just walked away, I didn't want to get involved in it, I didn't want to have a confrontation with him because I thought, "Well, he's had a bad night, or something's happened," and I started walking away and he kept saying, "Don't walk away from me, don't walk away from me," so I just kept going.

All right. Was that the extent of the conversation as you recall it?---Pretty well, yes, I didn't want to just, I just didn't want to stand there and argue with the bloke over just, over a tyre, you know."

(30) Mr Reece denied that he had any intention to sack Mr Bradley13 or that he had threatened to sack him.14

(31) And later:15

"Was it your impression at that time that you had given him the sack or that he had said that he was going to walk off the job or didn't you think about any of those things?---Well, no. He just said some words to the effect, he said, 'The job doesn't mean anything to me, I don't care about it,' and I said, 'Well, you know, that's a poor attitude,' and then he said, 'Well, I'll finish up, I'll go.' I said, 'Well, I'm not holding you, Quentin,' I said, you know, 'I gave you a job when you didn't have one, it's a full-time job. You didn't have one, I gave you a good job,' I said, 'It's entirely up to you.' "

(32) Mr Bradley denied that he said anything to the effect that the job was not important to him.16

(33) Mr Reece agreed that the conversation took place on the move. He said that Mr Bradley was following him asking Mr Reece not to walk away. He said:17

"I didn't want to get into an argument or a confrontation with Quentin, I just kept walking."

(34) Mr Reece denied that he told Mr Bradley "To get your stuff and go".18 Under cross-examination he said:19

"I would suggest that the act of the employer resulted either directly or consequentially in the termination of Mr Bradley's employment; would you agree with that, Mr Reece?---I think Quentin just left on the conversation we had."

(35) Mr David Reece said that he witnessed the conversation from a distance of about 5 metres and that he could clearly hear everything that was said. His recollection of the incident was as follows:20

"That morning me and Bob walked out to the back to - I went to grab a second-hand rims worm - he was going to help me to look for a tyre for it as well.

Right?---I arrived with a second-hand rims worm which was next to a trailer that was full of rubbish. Bob then walked over towards the second-hand tyres. Five or 10 seconds later Mr Bradley walked out of the back shed. He then proceeded over to Bob and said, "What did you want to see me about?" So I was, sort, of, five metres away at this stage. They were both side on to me, so I was sort of, listening to what they were saying. Bob asked him, "How come you didn't finish that job I asked you to the previous night?" He said, "It was because it was 5.30 and that's what time I finish." Do you want me to say any more?"

...

"You started to tell us about the conversation which happened. Can you just pick up the threads, as best you remember them, from where you left off before?---I finished at 5.30, then Bob explained that the customer arrived early that morning to pick up the tyre, and it put him in an awkward situation but, luckily, he found something that got him out of trouble.

Right?---He said, "You should've at least told someone around the front that you didn't complete the job." He said, "Don't let it happen again."

Right?---Then Mr Bradley replied, "My job doesn't mean anything to me," and Bob said, "No one's forcing you to stay here. You know, I helped you out when you were unemployed. Your mother rang up. I gave you a job. Don't let it happen again." And that's when Mr Bradley walked away."

(36) In response to a question from the Commission, Mr David Reece said that Mr Bradley and his father were stationary at the time of the conversation.21

(37) After leaving the premises Mr Bradley said he went home, sat down for an hour thinking about what had happened, then looked through the phone book for a lawyer. This resulted in a letter from McGrath and Co. dated that same day and expressed as follows:22

"We act for the abovenamed who has sought our advice following his recent dismissal as an employee of Somerset Discount Tyres. We understand that our client was dismissed without warning or reason on the 29^th April 2003 after having been employed full time at Somerset Discount Tyres since around 13^th January 2003.

On the information given to us we have advised our client that he has an apparently solid claim against Somerset Discount Tyres for unfair dismissal pursuant to the provisions of the Industrial Relations Act 1984.

Please confirm in writing before the close of business on Friday the 9^th of May 2003 that Somerset Discount Tyres will reinstate Mr Bradley as a full time employee on the same terms and conditions that applied before his recent dismissal. If we do not hear from you by the 9^th of May 2003 we have instructions to lodge a claim against you before the Tasmanian Industrial Relations Commission seeking reinstatement, or all outstanding wages and other entitlements as well as further compensation. In those circumstances it is likely that our client would claim a sum of around $5,000.00 in compensation for his losses. Somerset Discount Tyres would also be likely to incur substantial legal costs of their own above and beyond any sums they were ordered to pay by the Commission.

Please confirm before the 9^th of May 2003 that you will reinstate our client or offer to pay him an agreed sum as compensation. We look forward to hearing from you."

(38) Mr Trafford asserted that the letter was faxed to the employer that same day but conceded that he was unable to provide documentary evidence of such transmission. I therefore accept Mr Bob Reece's evidence that he did not receive this correspondence until 1 May. [Note: Mr Reece's evidence refers to Friday 1 May. Friday was actually 2 May. Given that the letter was dated 29 April, it would seem likely that it would have been received by Thursday 1 May at the latest.]

Events Subsequent to 29 April

(39) Mr Bob Reece said that the next day [Wednesday 30 April] he still did not think that Mr Bradley had resigned23 and that he expected him to come back:24

"No, why did you think he hadn't come back?---Oh, why didn't I think? Yes. Well, I just thought he's had a bad night and got a bit hot under the collar and went home, he would think about it and come back.

Okay. So you didn't think he had resigned then?---No."

(40) Later on that day [approximately 4.00pm] Mr Reece prepared a letter expressed in the following terms:25

"I am writing in regards to your resignation on Tuesday 29^th April 2003 at 9.40am when during a conversation you told me to 'keep my job, you didn't care about it' before you left the building at 10.00am.

I would like to advise that your resignation has been accepted.

As the Automotive Trades Award stipulates that a minimum of 7 days notice must be given prior to resignation we have the option of forfeiting one week's wages. However, out of good faith I have decided to forgo this right.

Attached is a cheque for $712.00 for one week's pay and your annual leave entitlements outlined in the enclosed payslip. As previously arranged $50.00 has been deducted for part-payment of your account."

(41) This letter was handed to Mr Bradley when he collected his pay on Thursday 1 May.

(42) It is clear from the evidence that Mr Reece was offended by the reference to compensation in the letter from McGrath and Co. The following extracts are illustrative:26

"And you did eventually, you claim, receive the letter in which Mr Bradley made it quite clear that he wanted to be reinstated?---Or wanted $5000, yes.

But he asked you for reinstatement specifically, didn't he?---And the $5000, yes.

Well, let us forget about the $5000 now, we won't go into a pointless discussion about the way the letter was worded. You are telling me that on one hand you had not taken on any new employees for two weeks after Mr Bradley left?---Mm.

But at the same breath you are stating that you would like to have him back but there are no vacancies? Can you explain to me how that can be?---Well, when you get a letter in the mail stating that someone wants $5000 out of you, you don't feel real good about it, do you?

No, let us forget about the $5000?---No, you can't forget about it because it's in black and white, isn't it?

Were you happy to reinstate Mr Bradley or not?---I would have been only - - - 

You would have been?---Yes.

So, now you are saying it is not an unequivocable yes, you are saying that you would have been but?---Mm.

Is that right?---I would have been till you get a letter for $5000 and it feels not a real good taste, is it?

How about a week afterwards, how about in the first couple of days of May would you have been happy to have reinstated him then?---1 May, when's that, April/May, what are we now, June?

I am talking a week after he left would you have been happy to take him on if he had come back?---If he had come back his job was still there.

Was it?---Yes.

Why did you not then respond to the letter that you received when he asked you for his job?---I just told you, when you get one in there demanding $5000, it's a bit hard to sort of - - - 

So, what you are actually telling me then is, no, you wouldn't have reinstated him because you got offended because he asked, because he suggested $5000?---Mm, well it did in the end, yes.

Did in the end?---Mm, but I would have put him on if he had come back the next morning, or the next day, not a problem.

So, if he had come back the day when you told him you accepted his resignation you would have not accepted his resignation and taken him on?---Mm.

And pretended it never happened?---Yes."

(43) And later:27

"You didn't take Mr Bradley on because you got offended by his comments about $5000 in the letter?---Mm.

And that is the only reason you wouldn't take him on?---True."

(44) In response to a question from the Commission, Mr Reece said had the letter only sought reinstatement, "I would not have been offended whatsoever".28

(45) On the question of reinstatement, Mr Reece said:29

"And you would be quite happy to have him back if there was a vacancy, wouldn't you?---If there was a vacancy I'd have him back and I'd recommend him to anyone because he was a good worker."

(46) Mr Reece said that as a consequence of pressure of work, Mr Bradley was replaced with a new employee some two weeks after his termination.

Closing Submissions

Mr Trafford for the applicant:

(47) If there was not an actual dismissal at the initiative of the employer then it was certainly a constructive dismissal.

(48) Authority for a constructive dismissal can be found in Blue Ribbon Meat Products Pty ltd v Carnie30 which in turn cited Pawel31 and Mohazab.32

"The proper construction of the phrase 'termination of employment at the initiative of the employer was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd. The approach adopted by the Full Court was referred to, with apparent approval, by McHugh J in Qantas Airways Ltd v Christie. The Full Court held in Mohazab that termination at the initiative of the employer occurs when 'the act of the employer results directly or consequentially in the termination of employment'."

(49) The employer had admitted, effectively, that the termination of Mr Bradley's employment arose as a result of the act of the employer, and hence, at the very least, there is a constructive dismissal, and one that was unfair.

(50) If it comes to a question of witness credit, then the evidence of Mr Bradley should be preferred, given the inconsistencies in the evidence of Mr Bob Reece and Mr David Reece.

(51) The issue involved was trivial. The employer had said that he was prepared to reinstate but had not taken the opportunity to do so.

(52) Mr Bradley had no motivation whatsoever to resign and every reason to maintain his employment. He took steps to pursue reinstatement almost immediately on leaving the premises.

Mr Dewar for the employer:

(53) The applicant had failed to satisfy the onus arising from s.30 [6] of the Act to prove that the termination was unfair.

(54) Having failed to return to work within a reasonable time, Mr Reece reasonably concluded that Mr Bradley had resigned, and hence the letter of 30 April accepting his resignation.

(55) For there to be a constructive dismissal, the employer must act in such a way that the employee is justified in leaving the job. There is no evidence of a constructive dismissal.

(56) Mr Reece did not approach Mr Bradley with the intention of giving him the sack. It was quite reasonable for Mr Reece to take up the issue of the incomplete tyre repair.

(57) When Mr Reece walked away from the conversation he was not expecting Mr Bradley to go. He hadn't asked him to go and was just looking for a cooling off period. Mr Reece was surprised and bewildered by subsequent events.

(58) The cumulative effect of an incident on 28 April and being "chatted" about the tyre repair, led to a position whereby Mr Bradley decided, "I've had enough of this and I'm going".

(59) The weight of evidence is that Mr Bradley simply walked away from the job and this is not a case of wrongful dismissal.

Findings

(60) I deal firstly with the question of witness credit.

(61) Mr Bradley impressed as an honest witness who gave his evidence clearly and without hesitation. His evidence was internally consistent and was not seriously challenged under cross-examination.

(62) Similarly I have no reason to doubt the veracity of the evidence given by Mr Bob Reece.

(63) The evidence of Mr David Reece in large measure corroborated the evidence of Mr Bob Reece. I have however discounted the weight attaching to this evidence for two reasons.

(64) Firstly Mr Bob Reece conceded that he had discussed his evidence "vaguely" with his son prior to the hearing. It would seem likely that this discussion took place subsequent to the conciliation conference on 27 May and before the hearing on 3 June.

(65) Secondly Mr David Reece said that the parties were in a stationary position when the conversation took place. This is clearly at odds with the evidence of both Mr Bradley and Mr Bob Reece on a fairly important point. It leads me to conclude that Mr David Reece may not have recalled the conversation with the precision he displayed as a witness.

(66) This of course is understandable. No witness claimed a recollection as to the precise words used. Given my finding as to credit I am not in a position to prefer one version of the incident to the other.

(67) Weighing the totality of the evidence, I am however satisfied that something was said by Mr Reece which led Mr Bradley to believe he had been terminated, or in the alternative, that he had no course open to him but to leave. I have reached this conclusion for the following reasons:

• Walking off the job for no apparent reason is quite inconsistent with Mr Bradley's demonstrated work ethic.

• On his unchallenged evidence, Mr Bradley had a reasonable explanation for the non-completion of the tyre repair. In the circumstances it is difficult to envisage how a civil discussion on the subject would provoke a walkout on Mr Bradley's part.

• Mr Bradley had every reason to maintain his employment. He had left a casual position paying a higher hourly rate for the security of full-time employment. He has a family to support and he owes money to the employer, which is being repaid in weekly instalments.

• Within an hour of leaving the premises Mr Bradley sought legal advice, which resulted in a letter seeking reinstatement being sent that same day.

• Mr Bradley impressed as a person who was always anxious to work through differences with his employer by civil discussion. He did not give the impression of being prone to irrational, "hothead" behaviour.

(68) On the test identified in Mohazab, I find that there was a termination at the initiative of the employer.

(69) It was not suggested by anyone that the incident complained of [the incomplete tyre repair] was a matter justifying termination. I therefore find that the employer has not satisfied the onus of proving that there was a valid reason for termination [see s.30[5]].

Remedy

(70) It is clear from the scheme of the Act that the primary remedy is reinstatement or re-employment. It is only when these options are found to be impracticable that the question of compensation arises.

(71) It is abundantly clear from the evidence that Mr Reece was incensed by the reference to compensation in the McGrath & Co. letter. But for that reference, it seems highly likely that Mr Bradley would have been quickly reinstated and the matter would not have come to the Commission.

(72) Whilst I can to some extent understand why Mr Reece was incensed, it was an unfortunate and in my view unjustified reaction to the letter.

(73) On a fair reading of the letter Mr Bradley is seeking reinstatement. It is only if the employer failed to agree to this within a period of some nine days, that the matter of a reference to this Commission and possible compensation arises. I conclude that it would be quite unfair for Mr Bradley to be disadvantaged by the terms of this letter.

(74) On the evidence it is very clear that reinstatement or re-employment are practical options. Absent other factors I would be inclined to order reinstatement retrospectively to the date of termination.

(75) There are however other considerations which should be taken into account.

(76) In circumstances whereby a dismissal is contested, the engagement of a replacement employee is not a defence against reinstatement where a dismissal is found to be unfair. In this case I have also taken into account that Mr Reece has to run a business. He employs ten staff in all, of which possibly four or five positions would be suitable for Mr Bradley. Whilst this case has been heard and dealt with quite expeditiously, I acknowledge that a delay, which might be of little or no consequence in a large corporation, can assume quite intolerable proportions in a small business.

(77) I also conclude that it is more likely than not that Mr Bradley said something during the conversation that might have upset Mr Reece. Thus it is possible that Mr Bradley, to a limited extent, may have contributed to an unfortunate outcome.

(78) This is a most regrettable case. In every sense of the word, Mr Bradley is a good employee. Whatever happened seems to be entirely out of character. I sincerely hope that the position is retrievable and that a sound working relationship can be restored.

(79) Taking into account all the circumstances, I issue the following recommendation.

Recommendation

(80) I recommend that on or prior to 14 July 2003 Mr Bradley be re-employed by Somerset Discount Tyres in a position equivalent to that which he held immediately prior to his termination. In the event that Mr Bradley is not re-employed in accordance with this recommendation, the parties are directed to confer as to appropriate compensation, with recourse to the Commission if necessary.

(81) The file will remain open until we hear from the applicant as to the future course of this application.

Tim Abey
COMMISSIONER

Appearances:
Mr B Trafford, solicitor, for Quentin Harry Bradley
Mr J Dewar, solicitor, for Robert William Reece trading as Somerset Discount Tyre Service

Date and Place of Hearing:
2003
June 3
Ulverstone

1 Transcript PN 458
2 Transcript PN 462
3 Transcript PN 965
4 Transcript PN 394
5 Transcript PN 466 to 469
6 Transcript PN 134
7 Transcript PN 199
8 Transcript PN 397
9 Transcript PN 31 to 37
10 Transcript PN 46 to 48
11 Transcript PN 291 to 293
12 Transcript PN 489 to 491
13 Transcript PN 492
14 Transcript PN 545
15 Transcript PN 496
16 Transcript PN 276 to 281
17 Transcript PN 638
18 Transcript PN 643
19 Transcript PN 755
20 Transcript PN 825 and following
21 Transcript PN 986 to 989
22 Exhibit R3
23 Transcript PN 570
24 Transcript PN 580
25 Exhibit R1
26 Transcript PN 687 and following
27 Transcript PN 765 and 766
28 Transcript PN 793
29 Transcript PN 677
30 T9833 of 2001
31 Pawel v AIRC & anor, FCA, [1999] 94 FCR at 231
32 Mohazab v Dick Smith Electronics Pty Ltd, IRC of A, 62 IR 200 [1995]