Doss v J. Hutchinson Pty Ltd [1998] QIRC 481 (1999) 160 QGIG 10

10 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 8 January, 1999 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1997 - s. 218( I) - application for reinstatement Kim Allan Doss AND J. Hutchinson Pty Ltd (No. B606 of 1998) CHIEF INDUSTRIAL COMMISSIONER HALL 18 December 1998 Application for Reinstatement·· Dismissal or Abandonment of Employment Absence of Authority to Dismiss Ratification - Compensation Awarded. DECISION The application was brought against Hutchinson Builders, Toowoomba. It was common ground at the hearing that J. Hutchinson Pty Ltd actually employed the applicant. Amendment of the application was not opposed. In those circumstances, I intend to treat the application as brought against J. Hutchinson Pty Ltd. The bulk of the evidence and submissions were directed at two issues. First, the issue whether the applicant abandoned his employment or was dismissed. Second, if the applicant did not abandon bis employment, the issue whether the person who purported to dismiss him bad authority to do so. It was common ground that the respondent engaged the applicant on 23 February 1998. He was employed as the foreman on a building site al Toowoomba. His immediate superior was the site superintendent, Bernard Bugden. Mr Bugden was himself subordinate to the project manager, Grant Dwayne White. On Friday, 20 March 1998 the applicant and Mr Bugden took opposing positions on the matter of a concrete pour. Mr Bugden was insistent that the concrete be poured the following day, Saturday, 21 March 1998. The applicant opposed that course for a variety of reasons. Important amongst them was bis opinion that if the concrete was poured between block walls that had yet to pass inspection by the site engineers, it was inevitable that the respondent would be required to demolish all that had been done and start again. The disagreement flared again the following morning when Mr Bugden rang the applicant and told him to pour the concrete. The conversation ended when Mr Bugden said to the applicant " ... if you can't follow orders, pick up your gear and get off site." The applicant took that to mean that be was dismissed. After making arrangements to lock up the site, he took some of his gear and left. The respondent contended that no reasonable person would treat the words used by Mr Bugden as an intimation that the applicant's employment was terminated. Mr White told me that it was common in the building industry to tell people to "get off the site" if tempers become frayed in order that the person involved may cool down. (Mr Bugden was not called as a witness.) It may be conceded that the words "get off the site" have no settled meaning. However, in this case they were accompanied by a demand that the applicant remove his gear from the site. He had so much gear on the site that he had to return on the following Monday to complete the task. The direction to remove such a large quantity of material is some indication that he was not me.rely to "get off the site", but that he was not to come back. Given that Mr Bugden was on the telephone and not on the site, the argument that a reasonable person would have thought that he was being told to take a cooling off break carries little weight. Additionally, the minutes of certain site meetings were put in evidence. It was common ground that the maker of the typed document was not called as a witness. However, the documents that were put in were documents in the possession of Mr Michael Moran, the clerk of works for the client on the site. They bore his handwritten corrections to the original typed version. It seems to me that Mr Moran did, at the time, adopt those typed words that were not deleted or changed, together with the words that appeared in his own handwriting. The minutes relating to meeting number 8 recorded "Kim Doss to be replaced - as he refused to complete corefill to masonry work which was rejected by the Engineer." The minutes of meeting number 9 recorded "Kim Doss was dismissed - as he refused to complete corefill to masonry work which was rejected by the Engineer." On both occasions the word "out" appe.ared next to the passage that I have recorded. Mr White told me that was because it was agreed that the passage was wrong and was to be corrected in future minutes. Mr Moran had earlier said that the word "out" was used to indicate the item was not to be recorded in future minutes. When that was put to him Mr White contended that the word "out" was used in both senses. With the greatest of respect to him, I do not see how it could be. It must be conceded that the minutes of site meeting number 10 recorded "C/W advised he understood Kim Doss was dismissed, however HB do not agree that he was dismissed." However, that meeting occurred aftec the application had been served on the respondent. I do not attribute to the respondent that it was trying to rewrite history. The innocent explanation that, upon receipt of the application somebody had re-examined the matter and taken the absence of authority point, should, I think, be adopted. The obstacle remains, however, that at each of two meetings attended by Mr White and Mr Bugden, the effect of the recorded discussion was that the applicant had been dismissed. The respondent sought to take some solace from the employment separation certificate. Mr White asserted that it was his policy. when an employee was dismissed, to pay two weeks salary in lieu of notice. The applicant was not paid any moneys in lieu of notice. It was contended that that was some evidence that the employee was not dismissoo. In the absence of some evidence that the applicant was aware of the policy, I wonder bow that would be so, though it would show consistency by the respondent. In my view, the suggested policy was quite inconsistent with the way in which the form was filled out. It is apparent from the form that the applicant was not given moneys in lieu of notice. Yet the box ticked to show the reason for dismissal was "unsuitability for this type of work". That could only have happened if the person filling out the form departed from policy or if there was no such policy. Additionally, one has to wonder why it was that the box adjacent to the reason for dismissal, viz. "Did the employee ce.ase work: voluntarily?", was not ticked if the applicant had abandoned his employment. In all the circumstances, I am satisfied that it is more probable than not that the applicant understood that be had been terminated at the initiative of Mr Bugden and that a reasonable person in that position would have taken the same view. There was no evidence that Mr Bugden had the authority to tenninate the applicant's employment. There was an abundance of evidence that Mr White had the authority to terminate the applicant. There was a significant conflict of evidence between the applicant and Mr White. The applicant said that he telephoned Mr White on the Monday morning and enquired whether Mr White was aware of what had occurred. He said that Mr White told him that his employment had been terminated. He said that he had a further face to face meeting with him later on in the morning at which Mr White said that he was 8 January, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 going to stand by Bernie's decision. Mr White said that be had a face to face conversation with the applicant on the Monday morning at which the applicant indicated to him that, because of his difficulties in getting on with Mr Bugden, he did not propose to continue his employment at the site. Having regard to the minutes to which I have previously referred and the form of the separation certificate, I have decided to treat the applicant as more reliable and to accept the evidence of the applicant. I do not accept that the word "decision" should be construed to mean that Mr White was standing by Mr Bugden' s decision to order the pour. Mr Bugden did not make the decision to order the pour. Mr White bad made that decision and told Mr Bugden to implement it. In the circumstances I am satisfied that Mr White ratified the dismissal. Little has been said upon the question whether the dismissal was harsh, unjust or unreasonable. Plainly, a submission justifying the dismissal would have been incompatible with the respondent's submission that the termination was at the initiative of the employee. The applicant, who carries the onus s. 221 (a), put some material in. On that evidence the dismissal did not relate to the operational re.quirements of the respondent's business. The truth was that the applicant was ende.avouring to further the respondent's interests. No evidence was adduced to show that his opinion was incorrect. The correctness of his opinion about the need for the work to be demolished was not attacked in cross-examination. On my findings of fact about the interactions between Mr White and the applicant, the latter was not given the opportunity to defend bis conduct or to plead for his job. Mr White bad made the decision to support Mr Bugden's decision to dismiss the applicant before the applicant spoke to him. I am satisfied on the balance of probabilities that the dismissal was harsh, unjust and unreasonable. The construction project is incomplete but it was common ground that reinstatement was not an option. The applicant was paid $50,000 per year. Superannuation contributions (in an unspecified amount) were made on his behalf. He was unemployed until 24 August 1998. He is now employed on a salary of $54,000 per year plus (unspecified) superannuation contributions plus telephone expenses. During the period 21 March 1998 to 24 August 1998 the applicant did a few days work here and there with McMasters Builders. (The evidence did not disclose the applicant's actual earnings.) It was submitted the applicant did not discharge his duty to mitigate damages. However, the so-called duty is not absolute. An applicant under s. 218 is required to act reasonably with a view to mitigating his damages. The applicant is a resident ofToowoomba. It seems to me that, at least for some period of time, it was reasonable for him to seek work in the vicinity of his home. It was also reasonable for him to seek work, for at least some period of time, at the level of site foreman. (I note the evidence of the applicant that he did a couple of days work: on the tools for McMasters Builders.) Whilst five months is getting towards the end of a reasonable period, I have to take into account that, in consequence of comments made to him by McMasters Builders, the applicant believed that he would be employed as a site foreman at either the Toowoomba RSL site or the Queensland Transport site, somewhat earlier than be actually found employment with Watpac Pty Lld. It is no longer adequate to assess a successful applicant's loss and, subject to the statutory ceiling, order that the employee be compensated to the extent of that loss. Bys. 222(4) I am required to take into account the length of the employee's employment witl1 the employer. (I note that, in its application to the length of the employee's service, s. 222(4) was referred to neither in the Minister's Second Reading Speech nor in the Explanatory Notes.) Doing the best I can, it seems to me that, when re.ad with s. 213(d), the purpose of requiring reference to be made to length of service is to ensure that there is some sense of proportion between the length of service and the compensation awarded. (It is unlikely that the purpose of the provision is to require reference to length of service in order that an assessment might be made of whether a successful applicant was likely to acquire an entitlement to long service leave some short time after the date of the unlawful dismissal or in order to predict the likelihood of the employee continuing in the employment if the dismissal had not occurred. Length of service has always been looked at on such matters.) Here, it does seem to me that there will be some lack of proportion if an employee with one month's service is awarded his full loss of five months salary. The proportion after all is 1:5. That said, length of service is not the only matter to be taken into account and the employee subjected to an unfair dismissal has the same right to "a fair go" as does his (guilty) employer. Given the limited materials which have been placed before me upon the matter of quantum and given that I have heard but scanty argument, I have decided to take a robust approach. Putting aside the statutory scheme, it seems to me that the correct contractual period of notice would have been two to three months. It seems to me that that would have been a reasonable period of time for an employer to allow a foreman with the applicant's experience to seek out alternative employment. In the absence of evidence I have decided to treat the unspecified superannuation contribution as offsetting the unspecified earnings with McMasters Builders. In those circumstances I award the applicant the sum of $12,500. I order that the respondent forthwith pay to the applicant the sum of $12,500. Dated this eighteenth day of December. 1998. D.R. HALL, Chieflndustrial Commissioner. Appearances - • Mr S. Lynch instructed by John Davies & Company Solicitors for the applicant. • Mr A. Stone instructed by Craig Ray & Associates for the respondent. Released: 18 December 1998 ##############4t#l####l##############H##########ffl######ffl################ffl########ffl####################fflffl######## -- 1 of 1 --