Cummings v Whitworth [2005] QIRC 49 (2005) 179 QGIG 7

[Extract from Queensland Government Industrial Gazette, dated 6 May, 2005, Vol. 179, No.1, pages 7-8] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Dustin James Cummings AND Carl Andrew Whitworth (No. B21 of 2005) COMMISSIONER FISHER 20 April 2005 Application for reinstatement – Applicant absent from work – Applicant failed to notify and provide medical certificates – Applicant verbally warned on several occasions – Applicant provided one weeks pay in advance – Applicant takes holiday leave – Applicant fails to contact respondent at pre-arranged time – Respondents recollection of events corroborated by witness – Dismissal found harsh and unjust – Industrial Relations Act 1999 ss. 83(1) and 85 – Respondent failed to pay appropriate notice – Pay in lieu raised at conciliation conference – Respondent to pay applicant one week’s pay within 22 days of release of decision – Section 393(6) Penalty not imposed. DECISION Carl Whitworth is self employed, working as a subcontractor to Ergon Energy and is directly contracted to Utility Asset Management (UAM). His role as a subcontractor includes inspecting power poles for serviceability and, if necessary, performing treatments to them. Mr Whitworth became self-employed in January 2004 and worked initially as a trainee with another trainee. On completing a personal inspection of 1000 poles, Mr Whitworth was able to work without supervision and was directly contracted to UAM. In July 2004 Mr Whitworth engaged the applicant, Dustin Cummings, as a casual labourer, to assist him in his role. In September 2004 Mr Whitworth offered, and Mr Cummings accepted, full-time employment. I accept as inherently more likely, Mr Whitworth’s evidence that the full-time employment commenced on Monday 4 October 2004 and not Friday 1 October as claimed by Mr Cummings. Shortly after the full-time employment commenced the employment relationship began to sour due to Mr Cummings’ continued absences from work. During the period 4 October 2004 to 4 January 2005, the date of Mr Cummings’ dismissal, Mr Cummings was absent from work entirely or left work early on the following occasions: Monday 11.10.04 – Friday 18.10.04 inclusive ill Thursday 21.10.04 – Friday 29.10.04 inclusive ill 10.11.04 left work after 11 a.m. due to partner’s illness 17.11.04 left work due to partner’s illness 10.12.04 left work due to partner’s illness Part of Mr Whitworth’s concern was the failure by Mr Cummings to notify him of his absences. On the first occasion of illness, Mr Whitworth may have pre-empted Mr Cummings’ notification. Mr Whitworth telephoned Mr Cummings on 10 October 2004 to advise where they were working the next day. During that telephone call Mr Cummings advised Mr Whitworth of his illness and that he would not be attending work the next day. Mr Cummings did not contact Mr Whitworth regarding his illness. On 17 October 2004 Mr Whitworth again telephoned Mr Cummings regarding their place of work for the next day. At that time Mr Cummings said he was still ill but would return to work on 19 October 2004. On 21 October 2004 Mr Cummings notified Mr Whitworth that he was ill. On 25 October 2004 Mr Whitworth contacted Mr Cummings who advised that he was still sick but would return to work on 29 October 2004. He did not return until the following Monday. Mr Cummings agreed that Mr Whitworth asked him to produce a medical certificate for the two periods of illness in October 2004. Neither was provided despite Mr Whitworth’s constant requests. Mr Cummings said he obtained medical certificates for the periods of illness but when he went to give them to Mr Whitworth he said he did not want them. Mr Whitworth denied that and said they were simply not provided. Mr Cummings also agreed that Mr Whitworth verbally warned him on several occasions, initially in respect to not producing a medical certificate and later about his absences due to his partner’s illness. In circumstances where Mr Cummings has agreed that he was warned that his continued employment was in jeopardy if he failed to produce medical certificates, I find that on the balance of probabilities, Mr Cummings decided not to provide the medical certificates. The dismissal of Mr Cummings must be seen against the background of his continual absences and the warnings about his future employment. Mr Whitworth, being self-employed, relied on Mr Cummings to ensure the efficient and timely completion of contracts. The absence of Mr Cummings affected productivity. Further, the failure to produce medical -- 1 of 3 -- 2 certificates for the extended period of absence raised issues about whether Mr Cummings had a lawful reason to be absent. Mr Cummings’ partner had given birth in early October 2004. At that time Mr Whitworth gave Mr Cummings one weeks’ paid holiday in advance. The parents of Mr Cummings’ partner lived in Tasmania and arranged for their daughter, Mr Cummings and their grandchild to fly there over the Christmas/New Year period. Mr Whitworth agreed to Mr Cummings taking leave from 23 December 2004. It appears that Mr Whitworth also planned to take a break over the Christmas/New Year period and return to work on Tuesday 4 January 2005. Mr Whitworth understood that Mr Cummings would be returning from Tasmania on 3 January 2005 ready to commence work the following day. He said Mr Cummings agreed to telephone him on 3 January 2005 to find out where they would be working on 4 January 2005. These arrangements were confirmed over Christmas drinks at the RSL on 22 December 2004 and were overheard by Michael Christensen, another contractor to UAM. Mr Cummings maintained that he told Mr Whitworth that he would be back from Tasmania on 4 January 2005 ready to commence work on 5 January 2005. He telephoned Mr Whitworth on 4 January 2005 to find out where they were working. Because Mr Whitworth had expected Mr Cummings to call on 3 January 2005 ready to commence work on 4 January 2005, Mr Whitworth said to Mr Cummings when he did telephone, words to the effect of: “You have been given previous warnings. You did not contact me yesterday about work today. You should look for another job.”. Mr Royds, who appeared for Mr Cummings, made much in closing submissions about an answer he understood Mr Whitworth to give in cross-examination. He contended Mr Whitworth said that Mr Cummings was to start on Monday (i.e. 3 January 2005). The transcript shows when he was asked the exact words he said that Mr Whitworth replied: “You must call me on Monday when you get back from Tasmania so I can tell you where we’re going to be working.”.(p. 69). Mr Whitworth’s evidence on the point was put as consistently as Mr Cummings put his. Mr Christensen provided corroborative evidence for Mr Whitworth. The Commission allowed Mr Christensen to give evidence by telephone over the objection of the applicant. While acknowledging that Mr Christensen was a witness of credit, under Practice Note 1 issued by the Commission on Taking Evidence by Telephone, the Commission has the unfettered discretion as to whether to allow such evidence to be heard. I permitted the evidence to be given as it was to be short and an outline had been provided in advance to the applicant. In addition, the witness was not in Cairns and it seemed unnecessary to require the attendance of the witness in person when there was some doubt as to whether a hearing on this application would be held. (Mr Whitworth had filed his own application seeking that the Commission dismiss or refrain from hearing No. B21 of 2005.). The matter of the period when Mr Cummings was granted leave could have been easily resolved had the leave been recorded. The absence of such a record leaves the matter to be determined on the basis of competing evidence. On the balance of probabilities I find that despite Mr Cummings having a return ticket for 4 January 2005, that this was the day his employer required him to return to work. I make that finding based on Tuesday 4 January 2005 being the first ordinary working day after the New Year long weekend. Mr Whitworth had work commencing on that day and it was reasonable for him to require his labourer to recommence on that day. Mr Whitworth’s evidence about Mr Cummings’ return to work was also confirmed by Mr Christensen, who has no interest in the working relationship between Mr Whitworth and Mr Cummings, nor does he have any interest in Mr Whitworth’s business. The lack of benefit to Mr Christensen causes me to accept his corroborative evidence. This is not a case where an employee has been dismissed because of temporary absence form work. Rather, Mr Cummings had a number of days off work, and although they may have been for legitimate reasons, he failed to notify his employer about some of them and failed to provide medical certification. His failure to be available for work on 4 January 2005, without notification, tipped the scales against Mr Cummings’ continued employment. Ordinarily, where an employee has been warned on several occasions about the amount of time off work without adequate notification, the Commission would not intervene in any dismissal that subsequently occurred for that reason. In this case however the dismissal must be found to be harsh, unjust or unreasonable. Chapter 3 of Part 3 of the Industrial Relations Act 1999 sets out the requirements for dismissal. Section 83(1) provides that an employer may dismiss an employee only if: “(a) the employee has been – -- 2 of 3 -- 3 (i) given the period of notice required by section 84; or (ii) paid the compensation required by section 85.”. (emphasis added) The subsection goes on to make provision for summary dismissal. At no time did Mr Whitworth contend that Mr Cummings had been summarily dismissed. Mr Whitworth acknowledged that he did not pay the compensation required by s. 85, that is pay in lieu of notice. Mr Whitworth said wages in lieu of notice had not been paid at the time because as a new person in this country (he emigrated from the UK in September 2003) he was unaware of the statutory requirements. While I am prepared to accept Mr Whitworth’s lack of knowledge as at 4 January 2005, he consulted a Solicitor on 7 January 2005 once Mr Cummings’ application for reinstatement was received. An offer of reinstatement together with the payment of lost wages between 4 and 11 January 2005 (the date of reinstatement) was communicated to Mr Royds on 10 January 2005. No response was received to the offer. It is common ground that the failure to pay wages in lieu of notice was raised at the conciliation conference for this application. Despite that the amount remains unpaid to this date. Ms Bosel, who appeared for Mr Whitworth, said that the offer of reinstatement together with the payment of lost wages overcame the statutory hurdle raised by s. 83 of the Act. I cannot accept that argument. Section 83 provides that an employee can be dismissed only if certain requirements are met. They were not met at the relevant time. Further, s. 393(6) of the Act provides that wages are to be paid within three days of the employee stopping work with the employer. The wages were not paid to Mr Cummings within this period. In my view the obligation under s. 393 (6) of the Act cannot be displaced by a later offer of reinstatement and payment of lost wages. Sections 83 and 393(6) place statutory obligations on employers, both of which must be met when an employee is dismissed. Reinstatement, re- employment or compensation are post-dismissal remedies that arise after a dismissal is considered to be unfair and are not obligations that arise at the point of termination. Given the lack of response to the offer (for reasons explained in my decision in B472 of 2005 dated 20 April 2005), Mr Whitworth should then have ensured his obligations under the Act were discharged. In this case I have found that Mr Cummings was dismissed unfairly only because the requirements of s. 83 of the Act were not met. Accordingly, I order that Mr Whitworth pay to Mr Cummings one week’s wages. Such amount is to be taxed according to law and paid within 22 days of the date of release of this decision. Under s. 393(6) of the Act a penalty may attach where wages are not paid within the specified timeframe. Although the failure to pay wages in lieu of notice was raised by Mr Royds, the application did not seek the imposition of a penalty nor did Mr Royds seek one at the hearing. Procedural fairness requires that the respondent be given notice about the prospect of a penalty and the opportunity to make submissions on the matter. In the absence of the issue being formally raised, I decline to consider imposing a penalty in this case. The outcome could well have been different had the issue been squarely raised. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2005 30 March Appearances: Mr W. Royds (William Royds Solicitors) for the applicant. Ms J. Bosel (MacDonnells Solicitors) for the respondent. Released: 20 April 2005 Government Printer, Queensland The State of Queensland 2005. -- 3 of 3 --