Atkin v Hymix Industries [1999] ICQ 5 (1999) 160 QGIG 165

164 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETrE 5 March, 1999 5 March, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 165 ##########################!!################################################################################################ QUEENSLAND I.\'DIISTRIAL COURT Workplace Relations A.et 1997 - s. 360(2) appeal from decision of industrial commission Ross Atkin AND Hymix Industries (No. C49 of 1998) JUSTICE WILLIAMS. PRESIDE\T 19 February 1999 Vofair dismissal - reinstatement impracticable- quantum of compensation appeal dismissed. JLDGMENT This is an appeal by an employee against the decision of a Commissioner on a reinstatement application brought pursuant to the provisions of the Workplace Relations Act 1997. ·me Commissioner concluded that in the circumstances the termination of employment was harsh, unjust and unreasonable bm fhat, a.~ reinstatement was irnpraciical, compensation was the appropriate remedy. The employee appeals pursuant to s. 360 of the Act (which gives an appeal on the ground of .;rror of law) against the conclusion that reinstatement was impracticable, against the quantum of compensation awarded, and against tht' failure to award costs. The appellanf s employment commenced on 29 April 1997 and terminated on 16 July 1997. It was agreed that initially he was employed for a probationary period as a diesel mechanic. There was a dispute as to whether the probationary period was to be for 6 or 8 weeks; in fact the appellant worked for 11 W<::eks. The Commissioner found that the respondent decided to extend the probauonary period but that was not communicated to the appellant. By July the appellant reasonahly be.Jieved he was a permanent employee. QGIG 5/3/99 -- 1 of 2 -- 166 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 March, 1999 The initial agreement provided for the appellant to be engaged as a casual, and in fact he was paid casual rates. Because he was working a full 38 ~our week he was strictly not a casual within the applicable Award, but it was accepted by each party that throughout the whole of the penod ot his employment wages were calculated according to casual rates. In the circumstances the Commissioner concluded that as at the date of termination the appellant was no longer on μ-obation. That finding was not challenged on appeal and it accords with the evidence given. The Commissioner noted that the appellant had not been counselled prior to dismissal "as to perfocmance or relationships with other staff'. The material finding of the Commissioner was that the respondent "determined on 16 July 1997 to terminate the applicant because the workshop foreman decided that the applicant was not what he was looking for. This decision was made because of an altercation with another mechanic over a tool drnpped on the applicant while working on the job and because the foreman was not satisfied with the applicant's performance" As the respondent was actmg on the 1-)[ernise that the appellant was employed on a casual b<i-'is it terminated his employment at the end of the day. The finding that the termination was harsh, unjust and unreasonahle was made for the following reasons:- 'The applicant was dismissed as it he was a casual employee when in fact he was a weekly hired employee as prescribed by the A ward. Toe applicant was not counselled during the probationary period as to any deficiencies in his performance or relationships. The applicant was not given an opportunity to respond to allegations made against him. The probationary period was extended without the knowledge of the applicant.". No challenge was made to those findings. The Comnnssioner then went on to consider the question ofreinstatement. Critically, in his reasons he observed:-- ·'Toe applicant argues that the respondent has several related business operations on the Gold Coast and that he would accept employment at any one of them if it was contended that reinstatement at the original site was found to be impracticable. No evidence was provided as to what these business operations might be or whether an order might properly be made as prnposed. The respondent holds the view that the small team at the worksite requires that there be compatibility between all employees and that the applicant has not demonstrated that he has the necessary attributes to work as a team member. These are the issues which should have been addressed during the probationary period. Such action may have removed the conflict which resulted in the termination. I do have some concern that the applicant would be able to work as a team member if reinstated. J am satisfied, ta.king into account the foregomg and other related matters raised during the proceedings, that the employment relationship has metrievably broken down and that compensation should be paid by the respondent. I am further satisfied that. taking into account all of the evidence, that a satisfactory working relationship as envisaged between the parties as a requuement at commencement, would not have heen an outcome had the employment continued even in the short term." I have omitted from the passage quoted the Commissioner's recital of particular matters supporting the stated conclusions. It is sufficient for present purposes to say that the Commis.sioner made ample findings lO support the conclusions expressed in the passage quoted above. The principal error of law relied on by the appellant is that he was denied procedural fairness in that he was not afforded a pr~er opportunity of placmg all material relevant to reinstatement and compensation before the Commissioner. In particular it was claimed that he was demed the opportumty placmg before the Commissioner evidence as to the respondent's other business operations on the Gold Coast. Much of the argument on appeal centred on a particular document to which reference is made in the transnipt of proceedings before the Commissioner. Apparently on the first day of heru:ing, whilst the appellant was in the witness box, he had in his possession to assist in givmg accurate evidence a document prepared for purposes of the litigation. On the second day, which was mainly take11 up with addresses, that document was also referred to. It was accepted hy both sides that at some stage the Commissioner took a copy of that document into his possession though it was not formally marked as an exhibit. By agreement I was shown a copy of that document during the hearing of the appeal. Despite what was said in the cour.se of submissions, it did not materially advance the appellant's case either with respect to reinstatement or compensation. When that was pointed out, it was said that there were other relevant documents which could have been relied on for those purposes. The appellant chose to be represented before the Commissioner by an agent who was not a qualified practitioner. In the end I have come tu the conclusion that there was ample opportunity for the appellant, by his duly authorised agent, to place all relevant material before the Commissioner. The fact that mav not have been done was not due to any fault on the part of the Commissioner. The observation of Moynihan Pin McMahon v Queensland Newspapers' Pry Lui (135 QGIG 1040, at 1041) is pertinenl:- "It has not, to my mind, been established that the employee was deprived, 'as a matter of procedural fairness' of an opportunity to be heard on the relevant issues. The obligation is to provide a 'reasonable opportunity' to present a case and not· ... ensure that a party takes the best advantage of the opportunity to which he is entitled' . " In support of that proposition reference wa.s made to the judgments of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343 and Gaudron Jin Re Association of Architects of Australia; fa Parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305. The most critical findings of the Commissioner would appear to be:- (i) Concern that the appellant would he able to work as a team member if reinstated; (ii) The employment relationship had irretrievably broken down; (iii)If employment had continued (rather than being terminated on 16 July 1997) a satisfactory working relationship would not have existed; in other words in any event the appellant had unly a very limited job expectancy with the respondent. QGIG 5/3/99 5 March, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 167 1bose findings were sufficient lo support a conclusion that reinstatement was impracticable. Given those findings the absence of evidence as to the respondent's business operations at other Gold Coast sites was irrelevant. Ibat was particularly so in view of the Commissioner's conclusion that the appellant had, without justification, sought to denigrate management, implied malpractice with respect lo the respondent's operations in connection with the disposal of waste and use of equipment, and alleged malpractice evidenced by a propensity to alter documents. I am satisfied that the appellant was given ample opportunity of placing all material relevant to the issue of reinstatement before the Commissioner and that there was no error of law involved in the Commissioner's finding that reinstatement was impracticable. Section 222(3) of the Act in broad terms and so far as is relevant provides that the maximum of compensation payable is the renruneration the employee would have received for the 6 ruunth period immediately following the dismissal. In this particular case the Commissioner awarded compensation of $5.077. In his reasons the Commissioner noted that after termination the appellant had engaged in a business activity conducted prior to his employment with the respondent. In that regard the Commissioner said:- "Subsequent to his termination the applicant engaged in, for a substantial period, a business activity conducted by him prior to his employment in the name uf Pioneering Spirit Pty Ltd. He is a Director of the company. The company operates a double decker London bus which had to be prepared for a 13,000 km trip through Australia. Included in this was a substantial mechamcaJ overhaul, organisation of the tour and conduct of the tour tor twenty-nine days. This was carried out by the applicant.". Immediately following that passage the Commissioner's reasons stated:- "! have taken this activity and other employment of varying natures and remuneration into account in assessing the compensation to be paid. I have also taken into account the non payment of wages in lieu of notice because of the termination as if he was a casual employee.". Following that the Commissioner merely stated his award of compensation in the amount of $5,077. The object of compensation is to restore the employee as far as practicable to the financial position in which he would have been, but for the v.rnngful dismissal (Rebel liquor and Best QGIG 539). Here compensation must be assessed in the light of the finding that, because of the breakdown in the working relationship, the appellant would not have remainerl for long in the employ of the respondent. Allowance also had to be made foc the other activities of the appellant in the period following the dismissal. Further, as noted by the Commissioner, something had to be included foc wages in lieu of notice. It is arguable that the Commissioner should have more fully exposed his reasoning in arriving at the figure which he did for compensation. But bearing in mind the factors relevant to that assessment to which I have already referred, it cannot be said that there was some erroc of law involved in assessing quantum at $5,077. The appellant also complained that the Commissioner made no order as to costs of the proceedings before him Section 225 of the Act confers on the Commissioner a discretion to award costs in the circumstances therein defined. Macken.lie Pin Culhane v St Josephs College (149 QGIG 709) indicated the general approach which should be adopted at the appeal stage:- "The jurisdiction to award costs is discretionary but such discretion must not be exercised arbitrarily. Because it is a discretionary exercise each case must be influenced by its own particular facts. It must also not be lost sight of that the reinstatement jurisdiction is essentially industrial in nature. It is probably impossible and certainly fraught with difficulty to define the kinds of cases where particular results will follow. It must also be kept in mind that the grounds of appeal are limited and do not ordinarily allow a review of the merit.« of the decision.". The appellant only had an entitlement to costs in the exercise of the Commissioner's discret10n if he established that s.225(l)(b) of the Act applied. The Commissioner did not articulate any reason for not awarding costs, but a perusal of the uanscript of the proceedings before the Commissioner does not indicate a clear basis for a finding that that provision applied. In the circumstances it cannot be said that there was an error of law associated with the Commissioner's decision not to award costs. Notwithstanding that the appellant has not been successful on the appeal in view of the industrial nature of the issues raised I will make no order as to cost;;; of the appeal. Appeal dismissed. No order as to costs. Dated this niueteenth day of February, 1999. G. WILLIAMS, President. Released: 19 February 1999 Appearances:- Mr S. Royce (of Australian Industrial Reinstatement Services) for the Appellant. Mr J.R. Jones ( of Jones Ross) on behalf of the Respondent. ########################################################################################################################### -- 2 of 2 --