Ashtons Circus Pty Ltd v Grant (No. 2); Ashtons Circus Pty Ltd v Lopez (No. 2); Ashtons Circus Pty Ltd v Lopez (No. 2); Ashtons Circus Pty Ltd v Grant [2003] ICQ 63 (2004) 175 QGIG 107

########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Ashtons Circus Pty Ltd AND Marshall Grant (No. 2) (No. C75 of 2003) and Ashtons Circus Pty Ltd AND Agustin Lopez (No. 2) (No. C76 of 2003) -- 1 of 3 -- 108 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 January, 2004 and Ashtons Circus Pty Ltd AND Tamalyn Lopez (No. 2) (No. C77 of 2003) and Ashtons Circus Pty Ltd AND Gary Grant (No. C78 of 2003) PRESIDENT HALL 17 December 2003 DECISION On 26 April 2002 each of the respondents filed an application for reinstatement of an earlier employment relationship with the appellant. By a decision of 21 March 2003, now reported 172 QGIG 1452, the Queensland Industrial Relations Commission found that each of the respondents had been dismissed by the appellant, that each of the dismissals was “harsh, unjust or unreasonable”, that in each case both reinstatement and re-employment was impracticable and in each case awarded the respondent the sum of $5,000 by way of compensation. In the case of each respondent Ashtons Circus Pty Ltd launched an appeal impeaching both the conclusion that the dismissal was “harsh, unjust or unreasonable” and, in the alternative, the quantum of compensation awarded. By a decision now reported at 173 QGIG 1162, each of the appeals was dismissed insofar as it challenged the finding that the dismissal was harsh, unjust or unreasonable”. By the same decision each appeal was allowed insofar as it went to the quantum of compensation. Each matter was remitted to the Commission (as originally constituted) in order that compensation might be assessed according to law. By a decision of 9 September 2003 now reported at 174 QGIG 205, the Commission assessed compensation (in each case) as $9,146. Ashtons Circus Pty Ltd now attacks that finding in each case. To understand the case made by the appellant, it is necessary to remember that the basis for the Commission’s decision that the dismissal was “harsh, unjust or unreasonable” was that whilst a bona fide and genuine conclusion that the respondent was redundant had been reached in each case, there had been an absence of appropriate process in that there had been an absence of proper notice, proper consultation, proper consideration of alternative employment options and a failure to provide appropriate counselling and/or assistance in obtaining alternative employment. Commenting upon the appropriate manner in which to assess compensation in such a case this Court, in setting aside the earlier decisions on compensation, observed: “The Commission did not find that not one of the Respondents might be made redundant. Indeed, the Commission expressly found that there was an operational reason for each of the redundancies. As counsel for the Appellant accepts, the harshness, injustice or unreasonableness was found in the way in which it was all done. In those circumstances, the Commission might reasonably have sought to calculate pecuniary loss by looking at what each of the Respondents would have earned during the minimum period of consultation and assistance in finding employment which would render a dismissal fair and the minimum payment in lieu of consultation and/or assistance which would achieve the same result.”. It seems tolerably clear that by its decision of 9 September 2003 the Commission embraced that approach. After referring to the decision of this Court cited above (at 206) the Commission went on to observe (at 206): “Lorraine Ashton’s Classic Circus Pty Ltd (LACC) of which all four applicants are Directors was established for a number of reasons, one of which was as insurance should the respondent close. LACC took over a number of engagements that the respondent did not wish to fulfil. So be it, when the respondent decided to cease operating as a Circus it did not assist the applicants to find alternative available employment or ascertain from them what assistance was required. Discussions appeared to be at the organizational level (LACC and the respondent) rather than between the respondent and the employees. The Commission acknowledges that employment in the Circus industry as compared to the entertainment industry is very limited. As such it may have been necessary for the applicants to be retrained. No efforts were made by the respondent to assist them by modelling a plan along the lines of an industrial instrument within a contemporary industrial format. The type of employment requires skills applicable primarily to circus life and are not skills easily transferable into other work situations. Each applicant had presumed (quite fairly so) that they would be employed in the position (or another appropriate position) for the rest of their working life. It was all they knew. Except for rumours they were not forewarned of their plight. They had no opportunity to attempt to find alternative employment. Their employment with the circus could only be described as dedicated, committed and of course lengthy.”. The Commission then went on to consider the personal circumstances of each of the respondents and, in each case, came to the conclusion that the true loss was 26 weeks’ salary. Having found that in each case the weekly salary was $371 (a matter to which I shall return) and that in each case a “nominal” amount of $500 should be allowed for “assistance” received, the Commission quantified the compensation for each respondent as $9,146. When one looks at the passage from the earlier decision of this Court, the passage from the decision of the Commission cited above and the factors taken into account in the case of each of the respondents, viz. age, association with the appellant, chances of alternative employment as a circus performer and the daunting prospect of retraining, it seems to me to be tolerably clear that the Commission was determining what period of notice would be “reasonable notice” in all the circumstances of each case and what compensation should be allowed in lieu thereof. Such an approach is in no way surprising. At common law, the parties are free to agree upon the duration of a contract of employment or upon a period of notice necessary to bring it to an end. However, where the parties omit to agree the common law has, since the demise of the presumption in favour of a yearly hiring, treated the parties as having agreed that the contract may be terminated by reasonable notice. In calculating the period of notice which is reasonable notice in a particular case, the necessity for a period of notice which allows for securing alternative employment is a cardinal consideration. In Brookton Holdings Pty Ltd (No. V) v. Kara Kar Holdings Pty Ltd (1994) 57 IR 288 at 290 Young J said: “What is reasonable is what a reasonable observer would consider the employee would need in order to find a new position in the labour market, if the contract should come to an end.”. In Rankin v. Marine Power International Pty Ltd (2001) 107 IR 117 at 138 Gillard J said: “In determining what is a reasonable period in respect to an employee, it must be steadily borne in mind what the primary purpose of giving a period of notice is. It is to enable the employee to employ new employment of a similar nature.”. For myself, I should have thought that 26 weeks’ notice was very much at the lower end of the appropriate notice in the case of a long-serving employee of a travelling circus faced with the prospect of changing lifestyle as well as occupation. However, the question which the Commission was attempting to answer was not one which permits of a unique and correct answer, compare Macauslane v. Fisher & Paykel Finance Pty Ltd [2003] 1 QdR 503 at 512 per Holmes J (with whom McMurdo P and White J agreed). I am not prepared to say that 26 weeks was not within the range of permissible answers. Indeed, Mr Merrell of counsel who appeared for the appellant, does not attack the decision as clearly wrong or unjust. The complaint, rather, is that the Commission acted on a wrong principle and/or took into account irrelevant considerations. The foundation of the argument is the summary of the decision in Chenery v. Klemzig Nursing Home (1988) 55 SAIR 544 and the decision in Griggs v. Health Equipment Hire and Supplies Pty Ltd (1995) 149 QGIG 131 which appears at p. 206 of the Commission’s decision of 9 September 2003. -- 2 of 3 -- 16 January, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 109 I must confess that the relevance of the decision in Chenery, ibid. and Griggs, ibid. quite escapes me. The decisions were decisions which would have been relevant to a contrived redundancy driven by mala fides. It may be that the Commission regarded the cases as listing the factors potentially appropriate to the assessment of compensation and set about looking at the factors listed which were relevant to a procedurally flawed dismissal rather than dismissal for which there was no valid operational reason. (The factors in Chenery, op. cit. partially overlap the factors listed by Ryan J in McCasker v. Darling Downs Co-operative Bacon Association Ltd (1988) 25 IR 107 at 123 to 124 as the factors relevant to the assessment of reasonable notice.) It may simply be that having considered the period of notice to which each of the respondents was entitled, having concluded that the period was 26 weeks in each case, having concluded that a fair period of notice might not be less than a period of notice to which a respondent was lawfully entitled and having identified that the arbitrary cap at s. 79(2)(b) had “kicked in” (compare Angus Stewart v. Creek Gold Pty Ltd (2003) 174 QGIG 104 at 105), the Commission concluded that there was no necessity to inquire further. In any event, whatever the reason for the reference to the decisions in Chenery, op. cit. and Griggs, op. cit., it has not led to the award of excessive compensation. It is contended that the Commission failed to deal with the submission that by February 2002 or, in the alternative, by March 2002 each of the respondents had been given notice of the pending closure of the circus and of the dismissal which (as a matter of formality) occurred on 6 April 2002. With respect, the Commission’s first decision (21 March 2003) found that neither of those submissions had been made out. The Commission’s findings were attacked on the first appeal. The attack was rejected on the basis that the findings were open to the Commissioner (173 QGIG 1162 at 1163). In my view those issues are closed. The final matter is the finding that each respondent received a gross wage of $371. With respect to the Commission, the evidence was that each of the male respondents received a gross wage of $371 and that Ms T. Lopez received a gross wage of $195 per week. That evidence provoked an exchange between the Commission and the (then self-represented) parties. There was an adjournment. The Commission was informed that that issue was not to be pursued. In those circumstances it seems to me that the Commission did err in law in turning its mind to that issue, unaided by evidence or argument, and concluding that for the purposes of assessing compensation Ms Lopez’ wage be adjusted to $371 per week. Ms T. Lopez argued before the Court that an amount of $431.40 per week should have been paid, based upon the Queensland Minimum Wage. With respect the Queensland Minimum Wage was not operative until almost 12 months after Ms T. Lopez’ employment with the appellant came to an end. In those circumstances I allow the appeal in case No. C77 of 2003. I set aside the decision of the Queensland Industrial Relations Commission ordering that the sum of $9,146 be paid by Ashtons Circus Pty Ltd to Tamalyn Lopez. In lieu thereof I order that Ashtons Circus Pty Ltd pay the sum of $4,570 to Ms Lopez. I dismiss the appeal in each of No. C75 of 2003, No. C76 of 2003 and No. C78 of 2003. Dated 17 December 2003. D.R. HALL, President. Released: 17 December 2003 Appearances: Mr J. Merrell, instructed by Deacons Lawyers, for the appellant. Ms T. Lopez for the respondents. -- 3 of 3 --