Deon Kelk v M.Q.F. Queensland Pty Ltd [1994] QIRC 79 (1994) 145 QGIG 669

668 QUEEN SL AN D GOVER NME NT IN DUST RIA L G AZETTE [25 March, 1994 25 March, I 994J QUEENS LAND GOVERNMENT INDUSTRIAL GAZETTE 669 ############## # # # ###### ### # ### ### # ###### ############ QUEE NSLAND INDUSTRIAL RELA TIONS COMM ISSION Industrial Relations Act 1990 s. 174 - application for re i nsta tement Deon Kelk AND M.Q. F. Queensland Pty. Limited {Case No . 8 7 5 1 of 1993} COMMISSIONER BLOOMFIELD 11 March 1994 Re i ns tatement - Claim for Reinstate men t - Dismi ss al - Whe th er Di sm i ssa l Occurred - Casua l Emp loyee - Arbitr ated Matter - N_o ev idence to suggest di sm i ssa l occurred - No juri sd icti on if no di smissal - A pp lication Refused. DECISION This matter rel ates to an appli ca ti on under sec ti on 1 74 of the Act by Thomas Schu lz of the The Bacon Factories' Union of Employees, Queensland for the rei ns tate ment of Deon Kelk to his rc:,rmer position of General Labourer wi th M .Q .F. Queensl and Pty. l 1m1t ed without prej udice to the former condit ions of em ployment; payment of lost wages between the date of te rminati on namely 10 November 1993 and the date of reinstatement; an d/or in the alternative, th e payment of compensation "w hich the Comm is si on considers appropria te". Background The circumstances of this case are un usua l an d the back.ground of the matter is critical to t he arguments of both th e applicant and the respondent empl oyer, as we ll as to the deci sion of the Commi ss ion. Mr Kelk was interviewed on 29 October 1993 in con ne ction wi th his application for work as a casual employee at M .Q.F. duri ng what w as desc ribed in t he proceedings as the "Christmas rush". Mr Kelk h ad be en referred to the employer by the CES and was of the view that h is engage ment would be during the Christ mas rush. There was no guarantee given to M r Kelk as to t he duration of the period of his casua l engagement no r that he would be engaged for every day. In accordance wi th instructi ons M r Kelk reported for employment on 1 November 1993 and was direc t ed to the cryovac p ack ing secti on. The supervi sor of this section, a Mr Peden, gave evidence that it was his u su al procedure to info rm all new employees about such matters as starting time, ceas ing time, safety procedures. and work ing overt ime as requir ed . He al so gave evidence that, as a stan dard procedure, he told new sta rters commencing around Christmas that th at period was a trad itionally ve ry busy time and that no time off would be allowed. He al so indicated t hat i t would be standard procedure to info rm any new employees, such as Mr Kelk, that they must telephone the Company on the morni ng of any day that they were no t ab le to atte nd for work because of " an emergency". He further indicated that he believed t hat he had gi ve n Mr Kelk this standard induction. Mr Kelk gave evidence that he could recal l being spoken to about thi ngs such as starting and fi ni sh ing tim es; that he coul dn't recall anything being sa id about safe ty requirements bu t that he w as "q ui te sure" that he hadn't been told about the importance of turn ing up for work every day no r that no time oft wou ld be allowed duri ng the Christ mas rush. Mr Kelk wo rk ed the first week of his employment w ithout incident - including overtime - and the Company found his work qu i te sat isfactory. Mr Ke lk again worked on 8 and 9 November 1993. On 10 November 1993 Mr Kelk di d not report for wo rk and no contact was recei ved by the em ployer wh ich indicat ed the reason for his absence. The personnel officer of the em ployer, a Mr McAdam, g ave evidence th at he at tempt ed to contact Mr Kelk at the phone number stated on his j ob application. It turned out that th is phone contact number was t he app li cant's fa t he r on Stradbroke Is land who did not know his son's w hereabouts. M r McAdam left a message for M r Deon Ke lk to contact the Company i f he should make contact with his fat her. Mr McA dam report ed his act i ons to the M.Q.F. Production Manager, M r Wh itl am, who instructed him to find a re placement for Mr Ke lk and to "terminate• M r Kelk. Mr McAdam gave ev idence th at he never had the opportunity to do this as he had no further con tact w i th Mr Kel k. Mr McAdam indicated th at apa rt from Mr Wh itl am he had informed M r Peden of the decision that had been ta k en to "terminate" Mr Ke lk and to find a replacement employee. At around 6.30 a.m. on ·t 1 Novemb er 1993 t he employer - through the fre sh meat purchasing manager Mr Kinman - rece i ve d a ca ll from M r Kelk in wh ich he indicated t ha t he would be absen t from wo rk until 15 November 1993. M r Kinman had no responsibility for the hiring or fi ring of empl oyees and simply passe d the message on to others within the Company. Ev idence and sub mi ssi ons from the employer i nd i ca te th at it received no further contact from Mr Ke lk un ti l approached by Th e Bacon Fac tori es' Union of Employees, Queensl and on or after 16 November 1993, when Mr Kelk's re i ns tatement was so ught. In Mr Kelk's statemen t of evidence he stated that he b egan experiencing discomfort in the groin area on the afternoon of 9 November, wh ich became worse on the foll ow ing day, namely 1 O November. His statement al so i nd icated that he was unable to move very iar and unable to l eave his flat to see k medical ass i sta n ce, or to advise the employer of hi s incapacity to at te nd for duly. He did no t have a telephone service connected to his pl ace of residen ce at Wyn num Central. -- 1 of 2 -- 670 Q UE ENS L AND GOVERNMENT INDUSTRI AL GAZETTE [25 March, 1994 Mr Kelk told the Commissi on that he was ab le to telephone th e employer at approxi mately 6.30 a.m . on 11 November w h en he spoke to a person unknown to him an d advised that per son that he was incap ac itated and wou ld be un ab le to attend for work th at day. Mr Kel k also advi sed that la1er during that d ay he was ab le to move more free ly and vi si t ed a d oct or in Wynn um w ho dia gn osed tha1 he was sufferi ng from "an abdominal groi n inj ury'' and was issued with a m ed ica l certi i icate stati ng tha1 he wou ld be total ly i nc apaci ta ted for w ork up to an d including 14 November 1993 . In his sta tement of evidence M r Kelk funher i nformed the Commi ss ion that he again rang the employer later on 11 Novem be r an d spoke to M r McA d am, w hom he knew to be th e personnel o ff icer, to advi se h im of his i ncap ac i ty, only to be inform ed that his serv ices ha d been terminated as from the previous day. n amely 10 November, and that he was no lo nger employed by M.Q . f. Decision The Commi ssion has h ad the opportunity 10 observe the demeanour of a ll wi tnesses an d to further consider th e evidence {and submi ssions) since the decision was rese,ved. The evidence presen ted during th e cou rse of the case causes the Commi ss ion to dou bt Mr Kelk's vers i on oi events. In his sta tem en t of evidence (reierred to above) Mr Kel k advi sed the Comm iss ion of his contact w ith the employer on 11 November an d 1he reasons io r each alleged contact. However, in his eviden ce- in-chief Mr Kelk revealed 1ha t he h ad rung hi s father who told him that he had b een dismi ssed an d then he "rang them (the Company) up". Th is is at odds wit h his statem en t of evid ence i n wh ich reference to two (2i cal ls was made - neither of wh ich was prompted by a discussion with his iather. Mr M cAdam on the other hand, gave very convinci ng ev idence tha t he would never leave a message i nforming a second pany of an employee's di sm i ssa l. Fu rth er, Mr McAdam had a pecul iarity of informing anyone who was bei ng terminated that they were being "paid off" and that the wo rd "termina ted" was a term th at he wo uld not use . M r Ke lk's evidence was th at he visited the doctor on 11 November 1993. The original of the medi ca l certificate was tendered in evidence to the Commission. Mr Kelk' s ev idence was al so that he b egan to experience disco mfort on th e afternoon of 9 November 1993 and that the medical practi tioner had "diagnosed" the ai lment on 11 NovP.mber. fhe medical ce rt ii icate indicates that Mr Kel k had inform ed th e med ic al prac1 i tio ner concerned that the "i ncapaci ty co mmenced on 11 /1 1/93". Th e certificate appears to indicate that th e medical pract it ioner ex ami n ed M r Kel k on 14 November 1993. On the top oi the certii i ca te, but w ritten over " 14/ 11 /93", add i tional wor ds and iigures are written "for 11/ 11/93". Upon the Commission 's examination of the certifica te. it appears that the date " 14/ 11 /93" was w ritten prior to the addition of th e wo r ds and fi gu res "For 11/11/93" . The Commission can only conclude that the visit to the doc tor took pla ce on 14 Novem be r 1993, that the certificate was mean t to apply in relation to the absence on 11 November, and th at Mr Ke lk had inform ed the doc tor that the "abdominal groi n inj ury" had commenced on 11 November. Finally, in his sta tement of evidence M r Kelk all eges that his initial pho ne ca l l to th e Compan1' advised of hi s incapacity to wo rk ior th at day and that he later phoned Mr McAdam to iniorm him oi his i ncapaci 1y on ly to be ad vi;ed oi his term inati on as from the previous d ay . The employer's ev idence is that Mr Kelk made only one phone ca ll on 11 November whe n he advi sed Mr Kinman thai he wou ld be absen t un til 15 November 1993. M r McAdam deni es having spoken 10 M r Kelk on 11 November or, indeed, at al l after the decision was made by Mr Wh i tlam tha t M r Kelk be "terminated". Faced w i th the inconsistencies in Mr Ke lk's own evidence, ta ken on top of the divergence between his evidence and tha t of the employer, th e Commission can find nothing to support M r Kelk's con ten tion that he was "di smi ssed". Spec,fica lly, the Co mm i ss i on rej ects M r Kelk's contention 1hat he was advi sed of h is dism issal by M r McAdam on 11 November 1993. Further, the Commi ssi on finds that Mr Kelk's abse n ce on 10 November was unauthorised and unexplained and that, 1n the circumstances, the employer was en ti 1led to as sume that as a casual employee M r Kelk had decided not to continue to oiier for employment (this i s not an unusual occurrence at the estab li sh m en1). H ad M r Ke!k presented for employm en t on ·1 1 Novembe{ 1993 the employer wo uld have been entitled to cons id er w hether to re-en gage Mr Kel k as a casual empl oyee ,n accordance with the A ward. Equally, it wou ld have b ee n under no compulsion to have all ow ed him to co mmence work as the previo us con tract w ould h av e ce ased by vi11ue oi M r Kelk's non- attend an ce on 10 November. (See Pacific Was te Managemen t Pty Lt d v Michael John Saley, Ma tter No IRC (N SWJ 928 of 1993 i ssue d 12 November 1993). In con trast to the prov isions of the lnduscrial Conciliacion and Ar bitration Act 196 1, the lnduwial Rel,1tions Act 1990 contains specific provisio ns concern ing reinstatement and re- employment (Part II - Divi si on 4 ) . Under the "o ld" Ac t the au th oriiv of the l nduwia l Co nc iliation and Arbitration Commission to· or de r re-employmen t or rei n sta temen t r este d on the operation of section 11 on the deiinition of "industrial malter" in secti on S(c) wh ich defi nes "in du st rial rnaner'' 10 include "a claim to di sm i ss or to refuse co employ any particular person or per so ns or class of per so n s: or any question whether any particular per son or class of persons ought (having regard to pu b li c in terests) , and notwithstanding th e common law rights of employers or e mp loyees, to be continued or reinsta ce d in the employment of any particular emplo yer." (underlining mine). (See ,vtount Isa Mine s Limited /\ ward (1965) 60 QC IG 549; affirmed (1966) Qd R 245 (FC) (See al so Hall and Watson " Industri al Laws oi Qu een sland" Vo l. l, p. 26-30). Under the "o ld" Act the Com mi ssion wo uld have b een entitled to consider whether the decision of M .Q.F. 10 "reiu se to em ploy " Mr Kelk was h ars h. unj ust or unreasonable in all the circum s1 a nces, and w ould have possessed a discretion to cons ider whether an order requiring his re-emp loymeni was appropriate. The " new" Act, however, gives the Commission no such di sc retio n. For the Commission's i ntervention to be en li vened there must be "a dismi,sal" . In my view it is not possible to access the Commission's ge neral pow ers under s. 3 1, by reierence to the definition of "industrial matter", to co nsider applications for rei n sta temen t or r e-e mploymen t whe n the legisl ,1t 1on specifica ll y provi des the circu m s1ances under wh ich the Commi ss ion's powers to order reinstatemen t or re-employment may be assesse d an d wh ich have been so delib erately and clearl y se1 ou t in Division 4. Simply pu1, if no dismissal has occu rred the Commi ss ion h as no j urisdi ction to deal wit h th e m atter. Notw ithstandi ng its find ing (above) that there was no dismi ssa l, the Commission indicates th at even had i t io und that a dismissa l did occur the Commi ss ion wou ld not have exerci sed i ts discretion in iavour of Mr Kelk to order reinsta tement or re- ernploymen1. This 1s bec ause of the non-guaran tee of wo rk every d ay, the likely short peri od of en gagement and the im practi cabi li ty of ordering rei nstatement or re-employment to a posi ti on wh ich no longer exi sts. Fu r th er, 1 do not be lieve that any "dismi ssa l", in the circu ms tances, wo uld have been harsh, un ju st or unfai r. The i ss ue of compensa ti on, or payment for l os t w ages . thereiore, does not arise for considera tion. The ap p lication is refu sed . O rder accordingl y. A.l. BLOOM FIELD, Commi ss ioner Appearances :- Mr T. Schul z, w ith h,m Mr D. Burgess, of The Bacon Factori es· Un ion of Emp loyees, Queen sland for M r D. Ke l k. Mr I. Pat ti , w i th him Mr B. VV h it lam and M r N. M il ler, ior M.Q .F. Pt y. Limi ted Ope r a1 ive Date: NIA Decision - Reinstatement Released: 11 Ma rch 1994 25 M arch, l 994J QUEENSLAND GOVERNMENT INDUSTRI AL GAZETTE 67 1 -- 2 of 2 --