Bailey v CQ Calibration Services Pty Ltd [2005] QIRC 157 (2005) 180 QGIG 916

[Extract from Queensland Government Industrial Gazette, dated 25 November, 2005, Vol. 180, No.17, pages 916-917] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application to recover unpaid wages William Bailey AND CQ Calibration Services Pty Ltd (W/2005/157) DEPUTY PRESIDENT SWAN 14 November 2005 DECISION This is an application made by the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland on behalf of its member Mr William Bailey to recover unpaid wages from CQ Calibration Services Pty Ltd (the respondent). The quantum sought is $2,343.84 and represents payment in lieu of notice. The applicant had been employed as a store person working in the engineering tool store for the respondent from 18 January 1999 until 31 March 2005. The location of the employment was the Stanwell Power Station (Stanwell). The respondent had a contract with Stanwell for the management of the tool store and the calibration of the tools. The applicant had understood that the original contract between the respondent and Stanwell was for a period of two years. The applicant was also aware that this contract had been extended without a further tender process being undertaken until 2004. In May 2004, Stanwell had put the contract for the operation of the tool store out to tender. The applicant submitted an expression of interest for the tender but had been unsuccessful. The applicant understood that the respondent had tendered for the contract with Stanwell in 2004 as had a firm called Infraserv. Infraserv was ultimately successful and had engaged the services of some of the previous individual service providers as sub-contractors. The applicant says that he was not consulted by the respondent when it was involved in the tender process however there was a general view held amongst those at Stanwell with whom he interacted that the respondent was unlikely to be granted the contract. In late February 2005, the applicant noticed that Infraserv had advertised in the local Rockhampton newspaper for a range of positions at Stanwell, including positions for the operation of the tool store as sub-contractors. The applicant correctly understood that one of the positions being offered was his. The applicant applied for the position with Infraserv “to try to keep my job if Infraserv did not sub-contract the tool store to the respondent.”. The respondent paid his wages while he attended these interviews. The applicant attended interviews with Infraserv on 15 and 22 March 2005 as did Mr Coulter (supervisor for the respondent). The applicant was unsuccessful in his application. On 24 March 2005, a meeting was held in the tool store lunch room between representatives of the respondent (the respondent’s Manager Mr Gilluley and Mr Coulter) and representatives of Infraserv and Stanwell. After the meeting finished, the applicant says that this was the first time that the respondent had advised that it lost the contract for the tool store and that his employment would cease on 1 April 2005. On 31 March 2005, Mr Coulter gave the applicant a letter enclosing his payslip. The applicant had been paid for work up until 31 March 2005 together with his annual leave plus loading, but he was not paid any payment in lieu of notice. Mr Gilluley said that on 18 February 2005, he had phoned Mr Coulter’s supervisor and advised that the respondent had lost the contract to operate the tool store (Mr Coulter was on leave at the time). Upon his return to work, Mr Coulter contacted Mr Gilluley on 2 March 2005 and advised that he had told the applicant verbally on that day that the respondent had lost its contract and that the applicant would be unemployed as at 31 March 2005. Under cross-examination by Mr Gilluley, the applicant stated that he had applied for the position with Infraserv sometime before he claims to have heard that his position was to become redundant. He says that there was confusion on site and he remained adamant that he did not know what was happening with his position. Mr Coulter stated that he had not advised Mr Bailey in writing of the loss of the contract with Stanwell because “it was common knowledge and everyone was talking about it. There were many contractors on site – [they] knew they were out of a job as of 31 March 2005, unless of course they got employed by the new contractor.”. On 22 March 2005, Mr Coulter advised Mr Gilluley that he had given the applicant a letter for him to take to CentreLink confirming that the respondent had lost its contract as of 31 March 2005. That letter states as follows: -- 1 of 2 -- 2 “Thursday 31 March 2005 To Whom It May Concern This is to advise that William Bailey, employee of CQ Calibration Services has been made redundant from tomorrow, Friday 1 April 2005. This is due to CQ Calibration Services losing the contract to manage the Tool Store at Stanwell Power Station. Regards John Gilluley Manager.”. It is noted that the letter was dated 31 March 2005. The respondent’s evidence was that the date on the letter was incorrect and that the letter was given to the applicant on 22 March 2005. The respondent also says that the letter was, in fact, generated a few days before that. Mr Gilluley’s evidence around this point was that the letter related to the loss of the position with the respondent company and Mr Coulter said that the letter was generated as a consequence of Mr Bailey’s unsuccessful application with Infraserv. Given the wording of the letter, especially the words “has been made redundant from tomorrow, Friday 1 April 2005.”, it is difficult to accept the respondent’s evidence around this point. This factor will be weighed accordingly by the Commission in making its decision. Mr Coulter believed that the applicant had been given some 29 days’ notice that his position would cease on 31 March 2005. The respondent agreed that it had underpaid the applicant one week upon terminating his employment and this was because the applicant was aged over 45 years and would have attracted that payment pursuant to the Industrial Relations Act (1999) (the Act). The respondent had subsequently offered this amount to the applicant after the conciliation conference before the Commission, but the applicant had refused to take the money. There was evidence of a cool relationship between the applicant and Messrs Coulter and Gilluley because of past differences. Communication between the parties seemed to be conducted on a “need to know” basis only. I have no doubt whatsoever that the applicant was told that his position with the respondent company was to cease on 31 March 2005 and that he was told this on 2 March 2005. In forming this view, I have taken into account the corroborating factors that the applicant had seen his job advertised with the new contractor and had actually undertaken interviews with Infraserv which in my view destroys any notion that he was confused about his situation. It can be argued that “appropriate notice” would be better provided in writing to an employee, however, this was a small workplace and the information relayed through Mr Coulter to the applicant was reasonable in my view. Whilst I have found the respondent’s evidence on the question of the letter to Centrelink to be unconvincing, it is not sufficient for me to find for the applicant on the crucial point of when he was appropriately notified that his position was to cease on 31 March 2005. The application is dismissed. The respondent is aware of the requirement to have paid the applicant an extra week’s pay as previously mentioned in this decision. The respondent is to pay to Mr Bailey the amount of $585.96 (subject to appropriate Taxation requirements) within 21 days of the release of this decision. Order accordingly. D.A. SWAN, Deputy President. Appearances: Hearing Details: 2005 13, 17, 20 October Released: 14 November 2005 Mr E. Moorehead of Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland for the applicant. Mr J. Gilluley, with him Mr I. Coulter, on behalf of CQ Calibration Services. Government Printer, Queensland The State of Queensland 2005. -- 2 of 2 --