Ashtons Circus Pty Ltd v Falagan; Ashtons Circus Pty Ltd v Grant; Ashtons Circus Pty Ltd v Lopez; Ashtons Circus Pty Ltd v Lopez; Ashtons Circus Pty Ltd v Grant [2003] ICQ 32 (2003) 173 QGIG 1162

1162 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 8 August, 2003 INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Ashtons Circus Pty Ltd AND Tanya Falagan (No. C24 of 2003) and Ashtons Circus Pty Ltd AND Marshall Grant (No. C25 of 2003) and Ashtons Circus Pty Ltd AND Agustin Lopez (No. C26 of 2003) and Ashtons Circus Pty Ltd AND Tamalyn Lopez (No. C27 of 2003) and Ashtons Circus Pty Ltd AND Gary Grant (No. C28 of 2003) PRESIDENT HALL 23 July 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. The appellant now seeks to set aside each of the orders for compensation. It is contended that in each case in determining that the dismissal was “harsh, unjust or unreasonable” the Commission exceeded jurisdiction and erred in law. Alternatively, it is contended that in each case the Commission erred in law in concluding that the correct amount of compensation was $5,000. By consent of the parties all five appeals were heard contemporaneously. Ms Tamalyn Lopez appeared for herself and each of the other respondents save for Ms Tanya Falagan who indicated in writing that she did not wish to be heard and was content to abide the order of the Court. The conclusion that each of the dismissals was “harsh, unjust or unreasonable” is said, in all cases, to involve an error of law in that it involves a perverse finding “that the applicants had no reason to believe that the respondents were not continuing in the mode of family arrangements rather than moving towards the employer/employee relationship mode”, in respect of informing the respondents of the management decision to restructure the appellant. That same finding is said to have led the Commission to exceed its jurisdiction in each case. It is additionally contended, in each case, that the finding that the dismissal was “harsh, unjust or unreasonable” involved an error of law in that it was based on a perverse finding of fact that “the management did not act in an appropriate manner until 1 April 2002 to ensure that employees were aware that the Company was serious in its decision and not a continuation of family rumours” of suspension of operation of the circus. That finding is said to have led the Commission to exceed its jurisdiction in each case. Put shortly, I am not satisfied that the Commission made either of the findings complained of. In those circumstances it is unnecessary to revisit McPhee v. S. Bennett Ltd (1934) 52 WN (NSW) 8 at 9 per Jordan CJ, The Australian Gas Light Company v. The Valuer-General (1940) 40 SR (NSW) 126 at 138 per Jordan CJ, Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 356 per Mason CJ, Azzopardi v. Tasman UEB Industries Ltd (1985) 4 NSW LR 139 at 151 per Kirby P and Vetter v. Lake Macquarie City Council (2001) 75 ALJR 578 at 592 per Kirby J in order to determine when, if at all, perversity makes an error of fact an error of law. Neither is it necessary to review the way in which the decision in Minister for Immigration and Multicultural Affairs v. Yusuf (2001) 206 CLR 323 builds upon the decision in Craig v. The State of South Australia (1995) 184 CLR 163 in developing the characteristics of an error of jurisdiction. The critical passage in the Commission’s decision appears to be – “The Commission accepts that as a result of the management decision to cease performances, the positions of the applicants became redundant. Having made that decision the management did not act in an appropriate manner until 1 April 2002 to ensure that employees were aware that the Company was serious in its decision and not a continuation of family rumours. The applicants had no reason to believe that the respondents were not continuing in the mode of family arrangements rather than moving towards the employer/employee relationship mode. The management of the respondent had a duty to inform all employees that the Company would operate as a business with the 100 years of family custom and practice coming to an end. Such communication would ensure that contemporary industrial practices be followed so that the management decision to restructure the Company could be implemented. The respondent terminated the employment of the applicants for operational reasons. It is therefore necessary to consider whether the dismissals were harsh, unjust and unreasonable. After consideration of all the evidence, exhibits and material, the Commission is satisfied that management did not act clearly to outline to the persons associated with the performances and associated duties that family arrangements would cease and a clear employer/employee relationship would be established. This would ensure that the long time family rumours of closure could be addressed and the applicants informed of the formal decisions made by the Board of Directors. In Patrick Bernard Cains AND Wadepack Limited 172 QGIG 240–241 Linnane VP stated: ‘In Scott v. Westmeats Pty Ltd (unreported, Ryan JR, Industrial Relations Court of Australia, 12 September 1994) it was observed that the failure to consult had meant that there was no exploration of other options with the employee and no inquiries were made as to alternative work which might have been found for that employee. In Quality Bakers of Australia Ltd v. Goulding, Beazley J. held that the failure to consult with the employee about the redundancy, the failure to consider alternative employment options with the employee and the failure to provide the employee with any counselling or assistance in relation to the redundancy or in obtaining other employment, made the termination of his employment harsh, unjust or unreasonable.’ The Commission accepts that for a considerable period there was family communication about the future of the Circus. As already mentioned the rumours which persisted over a long time were not weighted highly by family members (the employees). -- 1 of 2 -- 8 August, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1163 On consideration of all the evidence the terminations were harsh, unjust and unreasonable. Reinstatement to positions within the Circus is not an option nor is re-employment.”. It is impossible to believe that the Commission was asserting that the relationship between each of the respondents and the appellant was not that of employer and employee. Each of the respondents was seeking a remedy available only to former employees. The Commission expressly found that each of the respondents had been dismissed by the appellant. In dealing with the matter of compensation the Commission expressly said: “In view of the years of service to the respondent and the efforts of the employees (family), the Commission is of the view that all applicants are entitled to an appropriate level of compensation.”. With respect to the careful argument of counsel for the appellant, it seems to be that in the passage complained of the Commission was doing no more than recognise that whilst the members of the circus troupe had a relationship with the appellant, either as an employee or a director, the members of the troupe were also bound by blood and by marriage. Such a view was plainly required by the evidence. Indeed, on the evidence, this was no ordinary case of family members being workmates. Because of the circumstances of circus life not only did they work together: they lived together. In my view the finding of the Commission (at 1454) that – “Except for the recent period the applicants did not regard themselves as working for the Circus but as part of the circus.” was plainly open and against that background the second finding complained of is perfectly understandable. The burden of the evidence was that since the end of the financial year 1999-2000, the circus had been running at a loss and that by February 2002 there were substantial debts. But there had been a falling out of members of the family. As sometimes happens in such situations, there was enmity and distrust. In particular, the matriarch of the wing of the family to which the respondents were most closely related did not believe the figures. It was her belief, given in evidence, that she considered that the figures had been “doctored” with a view to winding down the operation, excluding her wing of the family and recommencing business. It was open to the Commissioner, who had the benefit of seeing and hearing the witness, to conclude that the witness’s belief was genuine and to conclude that the apparent parlous financial state of the appellant was not a warning to the respondents that a cessation of business was at hand. It was also open to the Commission, on the whole of the evidence, to conclude that the respondents were not brought to a realisation that the business was to cease trading and told that they were to become redundant at a meeting of 12 March 2002. They were certainly told that at a meeting of 12 March 2002 and told that the date of cessation would be 24 March 2002. However, Ms Tamalyn Lopez discussed the matter with Mr Douglas Ashton, a director of the appellant found by the Commission to be the senior member of the family, and persuaded him to defer the closure until 6 April 2002. It was plainly open to the Commission to treat that transaction as continuing to foster the belief that whilst cessation of trade was constantly on the table an appeal to “family”, loyalty and the chosen way of family life might still prevail in extremis. It is but a short step from the formation of those views to a conclusion that the respondents were not told that all had changed and that henceforth a business view of life would prevail, until it was too late for the appellant to properly consult with the respondents about their future and to assist them in seeking out alternative employment. In my view the Commission’s conclusion that each of the dismissals was “harsh, unjust or unreasonable” is unimpeachable. The quantum of compensation is another matter. I accept the appellant’s submission that the starting point has to be each respondent’s pecuniary loss. I do not accept that the Commission looked at length of service rather than loss. At the time of dismissal the respondents had little to lose. The Commission did not find that no 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 at the minimum payment in lieu of consultation and/or assistance which would achieve the same result. Length of service is always relevant to the quantification of severance payments. However, in the absence of reasons, I cannot conclude that the amount of compensation was the same in each case and it was $5,000 in each case. Notwithstanding the length of time which these proceedings have taken, there seems to be no alternative but to set aside the order of the Commission that each of the respondents be paid $5,000 by way of compensation and to remit to the Commission, as previously constituted, the function of hearing argument upon that matter and issuing further orders. I set aside the Commission’s orders about compensation and remit the matter to the Commission to be heard and determined according to law. Dated 23 July 2003. D.R. HALL, President. Released: 23 July 2003 Appearances: Mr J. Merrell, instructed by Deacons Lawyers, for the appellant. Ms. T. Lopez for the respondents other than Ms T. Falagan. -- 2 of 2 --