Cains v Wadepack Limited (No. 3) [2003] QIRC 25 (2003) 172 QGIG 1340

1340 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 March, 2003 ######################################################################################################################## ### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Patrick Bernard Cains AND Wadepack Limited (No. 3) (No. B1150 of 2002) VICE PRESIDENT LINNANE 6 March 2003 Termination of employment – Re-employment ordered on terms – Continuity of employment maintained – Portion of Applicant’s costs ordered to be paid by Respondent due to unreasonable omission on the part of the Respondent connected with the conduct of the application – Industrial Relations Act 1999 – ss. 78, 335(1)(b). DECISION [1] This matter has been the subject of two previous decisions: see Cains v. Wadepack Limited (2003) 172 QGIG 240 and (2003) 172 QGIG 890. I rely upon findings made and material contained in those two previous decisions. [2] In the latter of those decisions I afforded Wadepack Limited (Respondent) the opportunity to provide written submission on why re-employment of Patrick Bernard Cains (Applicant) would be impracticable, relying upon the evidence before me on 28 October 2002. I also gave the Applicant an opportunity to respond to the Respondent’s written submission. On 31 January 2003 the Respondent filed an application to include supplementary material in its written submission. The written submission was required to be filed by the Respondent by 4.00 p.m. on 3 February 2003. [3] On 3 February 2003 the Respondent’s representative was advised orally that such additional material could be included with the written submission and that I would then make a determination as to whether to allow the additional material prior to making any decision on remedy. The Applicant’s solicitors were also orally advised of that position. [4] The Respondent’s submission was lodged on 3 February 2003, in accordance with the direction. The additional material sought to be relied upon was simply contained in the written submission. There was no affidavit or sworn statement containing the additional material. I then received a written submission from the Applicant and attached to that was an Affidavit of Gareth John Price which went to the additional material contained in the Respondent’s written submission. [5] On 20 February 2003 I resumed the hearing of the matter. On that occasion I indicated that, whist the matter should probably be determined on the basis of the evidence before me on 28 October 2002, I was prepared to allow the Respondent to adduce further evidence as to why re-employment would be impracticable. My preparedness to do so was conditional on the fact that the Respondent would give an undertaking to pay the costs thrown away by the Applicant as a result of a further hearing. [6] I then asked the Respondent’s representative to indicate by 21 February 2003 whether the Respondent wished to pursue the option of adducing additional evidence and that if the Respondent indicated that it wished to pursue that option I would arrange for a further hearing of the matter on 4 March 2003. I was mindful of the delay to date and that the matter should be heard and determined as soon as possible given that it was re- employment that was being considered and not reinstatement. [7] On 21 February 2003 I received correspondence from the Respondent’s representative advising that firstly, John Yenn, the Respondent’s Operations Manager, would not be available to attend a hearing in the first week in March, and secondly, that the Respondent was not prepared to give an undertaking to pay the Applicant’s cost of a further hearing in the matter. The correspondence then stated that the Respondent “accepts your alternative position whereby you will proceed to determine the matter in line with your decision of 29 January.”. [8] In that decision I indicated that “I currently lean towards an order for the re-employment of the Applicant as a printer.”. In its written submission, the Respondent refers to the evidence of Mr Nassibian that he was unaware of the fact that the Applicant was a printer by trade until he was cross– examined at the hearing of the application. The Applicant in his written submission refers to paragraph 2 of the Affidavit of the Applicant (Exhibit 1) wherein the Applicant deposes to the fact that he was a “printer by trade.”. That Affidavit was filed and served on the Respondent on 26 September 2002 i.e. approximately one month prior to the hearing of the matter. Further exhibited to that Affidavit was a job description supplied by the Respondent to the Applicant showing that the Applicant had “printing industry experience other than sales.”. [9] The evidence before me on 28 October 2002 was that the Applicant was a printer by trade, that the printing side of the Respondent’s business in Brisbane was expanding and that an additional printer had been employed since the termination of the Applicant’s employment. [10] The Respondent’s Brisbane factory operates one printing press – a 44 inch (220 cm) wide, five colour, Komori with coater and it is worth -- 1 of 2 -- 21 March, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1341 approximately $2 million. The Respondent asserts that the printer operating this machine needs a high degree of competency and expertise. Only one printer is employed on each shift, and, according to the submission of the Respondent, the “printer needs to run the press at full production and with a high quality of output given the autonomy that he has.”. [11] It would seem that the Applicant would require some training in the use of the Komori printing press. I have an untested Affidavit of Gareth John Price attached to the Applicant’s written submission filed on 6 February 2003 which suggests that the Applicant could be properly so trained within one month. On the other hand I have the contents of the Respondent’s written submission to the effect that Mr Yenn is of the view that it would take a “minimum of 12 month’s training, both in-house and with the supplier of the Komori…”. [12] I have formed the view that the Respondent should provide training to enable the Applicant to become proficient in the operation of the Komori printing press. That training should occur until the Applicant becomes proficient but be no longer than two (2) months of training. The training provided should be both in-house and with the supplier of the Komori. If the Applicant is not proficient in the operation of the Komori at the end of the training period then this matter should be referred back to the Commission for further consideration. [13] The Respondent also contends that the Applicant has placed a restriction on the working of shift work. The printer engaged since the termination of the Applicant’s employment was specifically employed to work on the additional third shift and currently rotates between afternoon and night shift. According to the Respondent’s submission all printers employed at the Brisbane factory work rotating shifts. The Applicant however indicates that he is prepared to work shiftwork and did indicate this to the Respondent on 21 January 2003. Any order for re-employment is conditional upon the Applicant working rotating shifts on the same basis as other printers at the Brisbane factory. [14] The Respondent also raises the issue of remuneration of the Applicant should he be re-employed. According to the Respondent’s submission, its production employees are paid under the Graphic Arts – General – Award 2000 – an award of the Australian Industrial Relations Commission. The salary paid to the printer employed subsequent to the Applicant’s termination is currently $42,484 – an amount which is in excess of the rate payable under the Award. This is done, according to the Respondent’s submission, in order to “attract printers with the necessary skills and expertise capable of operating the Komori…”. Any order for re-employment is conditional upon the Applicant receiving the award rate of pay and penalties during the training period. Assuming that the Applicant, at the end of the training period, is proficient in the operation of the Komori printing press his salary, including penalties, should be at least be $40,186 i.e. the rate of pay he received prior to the termination of his employment. This is still some $2,300 less than the printer employed subsequent to his employment currently receives. [15] If there are any difficulties at the end of the training period then the matter should be referred by the Respondent to the Commission. [16] The Applicant also seeks an order under s. 335(1)(b) of the Act for costs on the basis that the Applicant has incurred an additional $1,500 in costs because the Respondent failed to adequately address the issue of re-employment during the course of the hearing. This, it is submitted, was an unreasonable omission on the part of the Respondent connected with the conduct of the application. I agree with that submission. [17] The Applicant has been put to the additional cost of a written submission, the Affidavit of Gareth John Price and the telephone hearing of 20 February 2003. The Respondent should have been in a position to address the issue of re-employment at the hearing on 28 October 2002. In the circumstances I am prepared to make an order that the Respondent pay the Applicant an amount of $400 by 4.00 p.m. on 3 April 2003. [18] In the circumstances, I order the re-employment of the Applicant to the position of printer with the Respondent. The re-employment is on the basis that: (i) the Applicant is to be provided with training, both in house and with the supplier of the Komori printing press; (ii) the training is for a minimum period of two (2) months, or until the Applicant is proficient in the operation of the Komori printing press, whichever is the lesser period; (iii) the Applicant is to be engaged on shifts similar to those being performed by other printers in the employ of the Respondent i.e. rotating shifts; (iv) during the training period the Applicant is to be paid according to the provisions of the Graphic Arts – General – Award 2000; (v) following the completion of the training, the Applicant is to be paid a minimum of $40,186 per annum; (vi) the re-employment of the Applicant is to occur on Monday 10 March, 2003; and (vii) if there are any difficulties, either during the training period, or on the completion of the training period, the matter is to be referred back to the Commission prior to any action being taken by the Respondent which would prejudice the Applicant in his employment. [19] I also order, pursuant to s. 78(4)(a) of the Act, that the Applicant’s continuity of employment be maintained as if the termination of his employment on 10 July 2002 had not occurred. [20] I released the first decision in this matter on 2 January 2003. In that decision I stated the following: “[19]There is however the potential for re-employment of the Applicant as a printer. In circumstances where Mr Nassibian was only recently made aware of the Applicant’s printing qualification I am prepared to give the parties a fourteen (14) day period to see whether they are able to resolve the issue of relief. A Member of the Commission will be available to the parties to convene a Conference in relation to the matter should the parties so desire. [20] If the parties are unable to resolve the issue of relief by 12 noon on 16 January 2003 then I will issue a further decision on the matter.”. [21] Ultimately Commissioner Blades convened a conference of the parties but no agreement was reached. Shortly after being advised that the parties were unable to reach agreement I issued the further decision of 29 January 2003. Had the issue of re-employment been addressed by the Respondent in the course of the hearing the Applicant may have been able to be re-employed shortly after 2 January 2003. He has thus been deprived of in excess of two (2) months of income. In those circumstances I will further order that, pursuant to s. 78(4)(b) of the Act, the Respondent pay the Applicant an amount equal to six (6) weeks’ remuneration under the Graphic Arts – General – Award 2000 for a printer engaged on a Komori printing press. This amount to be paid to the Applicant by 4.00 p.m. on 3 April 2003. Order Accordingly. D.M. LINNANE, Vice President. Hearing Details: 2003 20 February Appearances: Mr R.G. Walters of Walters & Co Solicitors, for the Applicant. Ms V. Lincoln of Printing Industries Association of Australia, for the Respondent. Released: 7 March 2003 -- 2 of 2 --