Andersen v Umbakumba Community Council

LEGISLATION CITED: Industrial Relations Act 1996

Andersen v Umbakumba Community Council (1994) 56 IR 102 Bruce v AWB Pty Limited (No 2) (2000) 101 IR 296 Darren James Anderson v Northern Co-operative Meat Company NCNC Butchery Pty Limited (2004) NSWIRComm 300 Fary v Clements Techforce Pty Limited (2002) 120 IR 372 CASES CITED: Four Sons Pty Limited v Sakchai Limsiripothong (2000) 98 IR 1 Hill v Director General Department of Education and Training New South Wales (1998) 85 IR 201 IGA Distribution Pty Ltd v Moses No 2 (2002) 114 IR 30 Ogilvie v Warlukurlanga Artists Aboriginal Association Inc (unreported) AIRC Adelaide 28 August 2002 PR 921908

HEARING DATES: 02/25/2005 EXTEMPORE JUDGMENT DATE: 02/25/2005

Applicant Mr A Joseph, of counsel Mr Mueller National Union Of Workers, NSW Branch LEGAL REPRESENTATIVES: Respondent Ms K Nomchong of counsel Solicitor: Mr Rutherford Shanahan Tudhope Solicitors

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

National Union of Workers, New South Wales Branch, on behalf of Arvin Tubungbanua, and Express Data Pty Limited

Application by the National Union of Workers, on behalf of Arvin Tubungbanua, for interim orders under s 136 (1), s 137 (1) (b) and s 138 (3) of the Industrial Relations Act 1996.

1 On 25 January 2005 the National Union of Workers (New South Wales Branch), ("the NUW"), filed a notification of industrial dispute under section 130 of the Industrial Relations Act 1996 ("the Act"), in the Industrial Registry of this Commission against Express Data. At that stage the dispute concerned the threatened dismissal of an employee of the respondent, Mr Tubungbanua. 2 On 10 February 2005 the NUW sent by facsimile an application for dispute orders under s 137 (1)(b) and s 138 (3) of the Act. The orders are sought against the respondent. An amended version of that application forms part of the bundle of material sent to my associate by the NUW on 22 February 2005. That amended application has today been filed in court. 3 The orders sought in that amended application are in the following terms: " C. (1)(a) The Respondent, its related bodies corporate, officers, agents and employees are ordered to reinstate Arvin Tubungbanua in his former position as a Distribution Controller at the Respondent's premises at 14A Baker Street, Botany in the state of New South Wales on terms not less favourable to Arvin Tubungbanua, than those that would have been applicable had he not been dismissed; (1)(b) In the alternative to order (a) above, the Respondent, its related bodies corporate, officers, agents and employees are ordered to re-employ Arvin Tubungbanua as a Distribution Controller at the Respondent's premises at 14A Baker Street, Botany in the state of New South Wales; (1)(c) Arvin Tubungbanua's period of employment is to be treated as continuous and not having been broken by his dismissal on 26 January 2005. C. (2) These orders shall stay in force until the final determination by the Industrial Relations of NSW (including any appeal) in proceedings numbered IRC No. 799 of 2005." 4 The grounds and reasons and particulars are set out in the amended application: " D. Grounds and Reasons (1) Arvin Tubungbanua was employed full time by the Respondent from 27 January 2004 until 26 January 2005. (2) Arvin Tubungbanua was employed on a series of three consecutive contracts and had reasonable expectations of ongoing employment. (3) Arvin Tubungbanua's dismissal was for alleged poor work performance. (4) The details of the employment contracts and the surrounding circumstances support the proposition that Arvin Tubungbanua's employment was not genuinely of a fixed term nature but was in fact of an ongoing nature, or in the alternative that there is a serious question to be tried in relation to this issue. (5) If the Commission so finds, then Arvin Tubungbanua has been denied procedural fairness in the manner of his dismissal. (6) In the alternative, if the Commission wants to find that the contracts were for a fixed term then the circumstances of the termination are such that the Commission may order re-employment of Arvin Tubungbanua. (7) The balance of convenience favours the making of the orders sought. (8) Such other grounds and reasons as the Commission deems appropriate. E. Particulars (1) Arvin Tubungbanua's contracts contained provisions which allowed for the unqualified right to terminate by either party. This is one aspect of the contract which supports the proposition that they were not genuine fixed term contracts. (2) The representations made to Arvin Tubungbanua by officers of the Respondent were to the effect that he would be made permanent subject to the ongoing employment needs of the Respondent and subject to his satisfactory work performance. (3) Arvin Tubungbanua, when he was terminated, was advised that it was due to his work performance. This leads to two conclusions; (a) Firstly, that the reason given sits more comfortably with the view that Arvin Tubungbanua was on an extended probation period; and (b) Given that he had not been previously advised and/or counselled about poor work performance and had in fact been commended for his performance, then the dismissal is unreasonable and ought be reversed. (4) The contracts contain provisions allowing for termination by either party for any reason during the life of the contract. (5) If Arvin Tubungbanua's employment is treated as a fixed term then the union relies on paragraphs 2 and 3 of these particulars to support an order of re-employment. (6) On the question of balance of convenience; (a) The position held by Arvin Tubungbanua was subsequently filled by another person; (b) Respondent has undertaken to the Commission that no more employees will be engaged in fixed term contracts; (c) Arvin Tubungbanua is unemployed and has significant financial responsibilities to meet until the final determination of his application; (d) It is contended that his performance as a Distribution Controller was satisfactory and the documentary evidence supports this proposition. 5 On 17 February 2005 I was informed by the NUW that it had filed an application for relief in relation to unfair dismissal on 16 February 2005 in the Industrial Relations Commission. That matter has been allocated the number IRC05/799 and is set down for hearing before Commissioner Cambridge on 9 March 2005.

6 The respondent made an application that the application for dispute orders be dismissed on the ground that the issues in respect of that application were identical to the issues to be decided in the unfair dismissal application. I declined to grant that application. I advised the parties that I would recommend that Commissioner Cambridge deal with the unfair dismissal application and the application for dispute orders under s 137 and s 138; and, that I will hear the parties on the application for dispute orders on an interim or interlocutory basis.

7 To that end I gave the parties some little time in which to file and serve evidence and I set the matter down before me today. Preliminary Matters

8 The proceedings presently involve the application for dispute orders ("the application") which were commenced on 25 January 2005 by way of a notification of dispute under s 130. The notification of dispute under section 130 was the subject of an attempted conciliation before the Commission. A certificate under s 135 is on the file, signed and dated 1 February 2005. This advanced the course of proceedings to arbitration (see ss 135 (2)). 9 Once in arbitration proceedings, the Commission may make dispute orders of the kind sought in the application and may make orders on an interim basis. 10 S 136 where relevant provides: (1) The Commission may, in arbitration proceedings, do any one or more of the following: ..... (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis).

11 Under s 137 the Commission may make dispute orders when only dealing with an industrial dispute in arbitration proceedings. 12 S 137 (1) (b) and s 138 (3) where relevant provide: s 137 (1) (b), The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: ..... (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. s 138 (1) A dispute order may be made only against: (a) a party or likely party to the industrial dispute, ..... s 138 (3) If an employee is reinstated or re-employed under this Part, the Commission may order that the period of employment of the employee with the employer is taken not to have been broken by the dismissal .

13 There are a number of preconditions which must be met before s 137(1)b may be successfully invoked. These are: (1) The proceedings must be arbitration proceedings (2) There must be an industrial dispute. (3) The employee, Mr Tubungbanua, must have been dismissed either in the course of the industrial dispute, or his dismissal must have resulted in the industrial dispute.

14 In relation to (1), I have already dealt with this point. A certificate dated 1 February 2005 confirms that the matter is currently in arbitration.

15 In relation to (2), "industrial dispute" is defined in the dictionary under s 4 (1) of the Act to mean a dispute about an industrial matter. 16 "Industrial matter" is defined in s 6 of the Act. The definition is broad and includes the termination of employment of any person in any industry. On the material before me I am satisfied the matter concerns an industrial dispute about an industrial matter. A dispute was notified to the Commission on 25 January 2005 outlining a number of industrial matters, which included the threatened dismissal of Mr Tubungbanua. That Mr Tubungbanua's employment was terminated shortly thereafter does not change the proper characterisation of the matter as an industrial matter. 17 In relation to (3), the third precondition which must be satisfied before s 137 (1) (b) may be invoked is that Mr Tubungbanua must have been dismissed either in the course of the industrial dispute or as a result of the industrial dispute. 18 Mr Tubungbanua's employment came to an end on 26 January 2005. The dispute was notified to the Commission on 25 January 2005, therefore Mr Tubungbanua's employment ended in the course of an industrial dispute. 19 The question remains whether Mr Tubungbanua was in fact dismissed on 26 January 2005. There is no definition of "dismissed" or "dismissal" in the Act, although there are a number of case authorities, which provide assistance. In Fary v Clements Techforce Pty Limited (2002) 120 IR 372 the Full Bench of the South Australian Industrial Relations Commission dealt with the definition of "dismissed" and "dismissal" in the context of a casual employee whose employment was based on an arrangement with the employer whereby the employee notified the employer of his availability for further work in accordance with the requirements specified in the employer's induction manual. 20 The employee was advised his services were no longer required on the basis of operational requirements, not capacity or conduct. Following an unfair dismissal application, the finding at first instance was that there was no dismissal because the employee's employment was "suspended" pending reassignment to another position. 21 In reversing the decision on appeal the Full Bench, after noting there was no definition in the New South Wales Industrial Relations Act 1991 of "dismissed" or "dismissal", and, after examining the various dictionary definitions of "dismissed" and "dismissal", concluded: "We apprehend no real issue may be taken with the ordinary meaning of the word dismissal' as so applied to s 245, and, indeed, it seems to us that it is in that defined sense of an employee being sent away from employment that unfair dismissal cases in industrial jurisprudence have been concerned ... Therefore we find no difficulty in accepting the ordinary meaning of dismissal' suggested by Brereton J in Ex parte Wurth; Re Tully ((1954) 55 SR (NSW) 47) as being `the termination of services by the employer without the employee's consent'; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal ..." 16 After referring to this passage in his judgment in Grivell, Bleby J went on immediately to say:- "I have no difficulty in adopting the same definition of the word when it is used in the Act, namely the termination of services by the employer without the employee's consent." (par 27) 17 Bleby J concluded that the word "dismissal" as used in the (South Australian) Act was to be given its ordinary and natural meaning and that this was only open to the one construction, namely that expressed above." 22 The respondent has filed a number of statements made by various respondent employees which have been tendered into evidence and upon which it relies in this application. These statements received by me today suggest that the respondent decided not to renew Mr Tubungbanua's contract as early as 12 January 2005 (refer to the affidavit of Yanni Hatzidis sworn 24 February, 2005 at paragraphs [2] and [6] and Mike Kelloway's affidavit sworn 23 February, 2005 at [1], [2] and [10]). 23 Those statements and other statements of employees of the respondent also suggest that the reason Mr Tubungbanua's contract was not renewed was because of his poor work performance and because there was insufficient work for another permanent employee (see Mr Kelloway's affidavit at [6]). 24 Another issue relevant to whether or not Mr Tubungbanua was dismissed from employment on 26 January 2005 (after his contract expired) is the nature of the contract of employment. 25 On 11 February 2005 when the application first came before me, three contracts of employment were tendered. The parties to those contracts were Mr Tubungbanua and the respondent. They represented the period of Mr Tubungbanua's employment with the respondent, that is, from 27 January 2004 until 26 January 2005. The most recent one gives rise to the present application. 26 That contract is dated 20 July 2004 and on its face offers Mr Tubungbanua a position as "distribution controller" for a period of six months on an annual base salary of $30,000, superannuation entitlements and a right to terminate, given by either party, by the giving of one week's notice (see paragraph 3 of the contract dated 20 July 2004.) 27 The NUW contends as its primary position that Mr Tubungbanua's employment was not in fact of a fixed term nature, but of an ongoing or continuous nature. There is some force in the submission. The contracts contain what appear to be an unqualified right of both parties to terminate without the necessity to give reasons. In some instances this may mean the series of contracts may not be for a fixed or specified term. 28 In Andersen v Umbakumba Community Council (1994) 56 IR 102 at 107 Von Doussa J examined the contract of employment which contained a right to terminate by either party on two weeks' notice. His Honour found the right to terminate was unqualified and was not conditional upon a breach of the term of the contract. This aspect of the contract provided a basis for the finding by his Honour that the contract could not be characterised as one of employment for a specified or fixed period of time. 29 Andersen v Umbakumba Community Council was cited with approval by Sundberg J in the Federal Court in Bruce v AWB Pty Limited No 2 (2000) 101 IR 296 at 298. (See also Ogilvie v Warlukurlanga Artists Aboriginal Association Inc (unreported AIRC Adelaide 28 August 2002 PR 921908 at [13])). Similarly here, the contracts contain a term conferring an unqualified right to terminate by either party on one week's notice. 30 In all of the circumstances, that is taking into account the definition of "dismissed" and "dismissal", the circumstances of Mr Tubungbanua's termination, and, the nature of the contracts of employment, I am of the view Mr Tubungbanua was dismissed on 26 January 2005 in the course of an industrial dispute. The preconditions for the invocation of s 137(1) (b) have therefore been satisfied. Serious question to be tried 31 At this interim stage the principles to be applied are set out in Hill v Director General Department of Education and Training New South Wales (1998) 85 IR 201. The first consideration as to whether the interim orders should be granted is whether there is a serious question to be tried, or the applicant has made out a prima facie case.

32 Here, the applicant contends Mr Tubungbanua, on the basis that his employment was for an ongoing or continuous period, had a reasonable expectation that his employment would be continued. The applicant relies not only on the fact Mr Tubungbanua was employed continuously on three consecutive contracts over a twelve month period, but that during that period he was actually told by his managers that his employment would be made permanent (refer to Mr Tubungbanua's statement at [2], [7], [8] and [11]). 33 In addition, Mr Tubungbanua's statement annexes independent documentation which provides some corroboration for his version of events, namely, that during the course of his employment he had reason to believe his employment would continue after 26 January 2005. 34 At paragraph [6] of Mr Tubungbanua's statement, Mr Tubungbanua states that he received a performance review from a Mr Ezekiel on or about 14 July 2004. That performance review is attachment 3 to Mr Tubungbanua's statement. 35 It can be seen from the contents of that review, which is dated 14 July 2004, that Mr Tubungbanua effectively receives praise and encouragement for his work performance to that date. For example, in the section entitled "Manager's comments", it states: "I feel you have taken on the challenges and have improved and developed in the despatch area. I feel this will only improve in the coming months as you have become a valued member of the despatch team. There is still a lot to learn in the coming months and I can see you are ready to learn and develop. Thank you for your help and support over the last six months." 36 Also at paragraph 10 of Mr Tubungbanua's statement, Mr Tubungbanua states that in early November 2004 he was approached by the manager, Mr Hatzidis, and taken to see Mr Kelloway, who told him that he was about to receive a pay increase. Mr Kelloway then handed him a copy of a letter which dealt with that pay increase. That copy is attachment 5, to Mr Tubungbanua's statement. It is dated 9 November 2004 and signed by Mr Hatzidis as the national distribution manager. Among other things, the letter states that the annual review of remuneration has been completed for the period 1 October 2003 to 30 September 2004 and that the review was carried out with regard to a number of criteria, including personal contribution. The letter ends with the words, "I would like to thank you for your personal contribution you have made to date and I look forward to working with you in the year ahead". 37 This documentation indicates Mr Tubungbanua at least up to 9 November 2004 had been held in high regard by the respondent for his work performance. I will return to this aspect of the evidence later. 38 In Four Sons Pty Limited v Sakchai Limsiripothong (2000) 98 IR 1, the Full Bench of the Commission held that a casual employee who had worked at a restaurant had a reasonable expectation of continuing employment on the basis that he had had regular and systematic employment for six months. That case (at [19] and [20]) is also authority for the proposition that the test of whether a dismissal is unfair, is objective, although in deciding whether the test is satisfied objectively it is appropriate to have regard to the expectation that an employee may reasonably have gathered from what may have been said to him, or from what the employee may have inferred or had an expectation about from the employer's conduct, acts or omissions. 39 In relation to this first limb, which is required to be satisfied before interim orders may be granted, and in all of the circumstances outlined above, pertaining to the first limb, namely, whether Mr Tubungbanua was dismissed, whether his employment prior to dismissal was continuous, and, whether he had a reasonable expectation of his employment continuing, I am satisfied that there is a serious question to be tried. That question is whether in all of the circumstances Mr Tubungbanua had a reasonable expectation of continuing employment.

40 The second consideration to be assessed before granting interim orders is whether Mr Tubungbanua would suffer irreparable injury for which damages will not be an adequate compensation. In the amended application of dispute orders, it is stated under the subheading, "Particulars", (at [6]), that Mr Tubungbanua is presently unemployed and has significant financial responsibilities to meet until the final determination of this application. 41 In Mr Tubungbanua's statement, at paragraphs 17, 18 and 19, Mr Tubungbanua states that his family is under considerable financial pressure with various financial commitments, and that he wishes to regain his job with Express Data. 42 I note that even if Mr Tubungbanua is ultimately successful in his unfair dismissal application set down for 9 March 2005, it may be some period of time before he obtains the benefit of some remedy. In the meantime, he remains unemployed, with financial commitments, and without adequate financial means. 43 During the proceedings before me, the respondent tendered into evidence a document that was marked Exhibit J. This document offers Mr Tubungbanua a payment of six weeks' wages in respect of notice or compensation. The offer is stated to be conditional upon interim reinstatement not being ordered by the Commission. In the event reinstatement is ordered by the Commission, the offer will lapse. In my view, six weeks payment may not adequately fill the gap. There is no guarantee that the matter will be resolved within that time. In those circumstances damages may well be an inadequate remedy. 44 In all of the circumstances I am satisfied that the second limb has been made out. Balance of Convenience 45 This leads to the consideration of the balance of convenience.

46 In my view several matters are relevant to this third limb. These include: (i) Is there work available? (ii) Is reinstatement or re-employment practicable? (iii)The reasons, if any, for the termination of the employee's employment. 47 In relation to whether there is work available, the material before me suggests that some weeks before Mr Tubungbanua's employment was terminated, a person by the name of Jason Eastcott and another were engaged as casual workers to assist the distribution team (see Mr Kelloway's affidavit, at [24]), and that following Mr Tubungbanua's termination, Mr Eastcott took over his position as a casual (see Mr Kelloway's affidavit at [16] and [17] and Mr Hatzidis' affidavit, at [10]). 48 According to Mr Kelloway, this means that there is no position to which Mr Tubungbanua can return. Mr Kelloway also states, at [6] of his affidavit that at the end of Mr Tubungbanua's third contract (which expired on 26 January 2005) there was insufficient work for another permanent employee. This, together with poor work performance, is cited as the reasons why Mr Tubungbanua's contract was not renewed.

49 I find that the bulk of the material sent by the respondent in support of its argument against the granting of the application for interim orders, is concerned with Mr Tubungbanua's work performance and his inability to work with his colleagues. Very little is said about the availability or otherwise of work if Mr Tubungbanua were to be reinstated or re-employed, pending the resolution of the substantive proceedings. 50 There is no evidence before me, for example, in relation to the size of the respondent's operations tendered by the applicant. The fact that Mr Tubungbanua's position, however, has been filled by someone else and is now a casual position, does not mean that reinstatement or re-employment is impracticable or that there is no work available for Mr Tubungbanua at the respondent's premises. 51 In Darren James Anderson v Northern Co-operative Meat Company NCNC Butchery Pty Limited (2004) NSWIRComm 300, the Full Bench cited with approval (at [43]), the principles stated in IGA Distribution Pty Ltd v Moses No 2 (2002) 114 IR 30, "43 Having made these observations regarding s89(1), it is not necessary for us to deal with Ritchie C's treatment of the other statutory remedies available in s89 of the Act. We would add, however, for completeness, that in relation to s89(2) it was open on the evidence before the Commissioner to find, if he was not inclined to make an order in accordance with s89(1), that there was available a suitable position for the appellant with the respondent, namely the position occupied by the appellant while performing modified duties immediately prior to his termination. This construction of s89(2) is also in conformance with IGA v Moses where the Full Bench preferred the approach given to the meaning of "available" in Commonwealth Steel Company Ltd v Ward (unreported IRC93/3144, 16 December 1994) to the approach taken in Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341. In IGA v Moses (at 315), the Full Bench found that equating the word "available" with "vacant" was unduly restrictive and, in practice, could defeat the purpose of the section." 52 In other words, when considering the application of s 89 (2) of the Act, the availability of work is not confined to whether or not there is a vacant position. 53 I am therefore satisfied at this interim stage that there is work available should Mr Tubungbanua be returned to work for the respondent by way of reinstatement or re-employment. 54 In relation to the reasons for Mr Tubungbanua's termination, it remains to deal with the allegation levelled at Mr Tubungbanua by the respondent that his employment was terminated because of poor performance. Mr Tubungbanua in his statement at paragraphs 12 to 15 recounts conversations he had with his manager about his work performance. 55 At paragraph 15 of his statement he attempts to offer an explanation. "15. The only incident I can recall where there may have been a problem, was at the beginning of January 2005. At Express Data we did not have fixed lunch breaks and took lunch where we could. One day Mr Hatzidis approached me when I was having my lunch and said words to the following effect: "Go back to work" I replied with words to the following effect: "But I am having my lunch break" Mr Hatzidis then walked away. Approximately two minutes later, Mike Kelloway approached me and threw a pile of pick slips on the table in front of me and said words to the following effect: "Take these and pick orders" Then he walked away. I started to pick up orders straight away." 56 Statements relied upon by the respondent in these interim proceedings tend to suggest Mr Tubungbanua did not get on at least with some of his team workers and that he was lazy. Against this, however, is not only Mr Tubungbanua's very different account of his work history while working for the respondent, but the independent documentation that I have before me, which supports Mr Tubungbanua's version of events.

57 For example, Mr Kelloway states, (at [22] of his affidavit), that Mr Tubungbanua's pay increase was for the purpose of ensuring his wages remained in line with award conditions and was "entirely independent of work performance". On its face, the document suggests otherwise. I refer particularly to the last paragraph of the document which I have already quoted in relation to thanking Mr Tubungbanua for his personal contribution and the fact that Mr Hatzidis is looking forward to working with him in the year ahead. 58 The document, attachment 5 to Mr Tubungbanua's statement, is dated 9 November 2004. Therefore, as late as 9 November 2004, Mr Tubungbanua was effectively receiving praise and encouragement for his work efforts from the respondent. This is at odds with the accounts given by Mr Kelloway and Mr Hatzidis. Neither of those two gentlemen suggest the problem regarding Mr Tubungbanua's work performance arose suddenly, that is, some time after 9 November 2004. On the contrary, Mr Kelloway's affidavit suggests that there was a problem and it was manifest before that date. Indeed, according to Mr Hatzidis (see second paragraph [5] of his affidavit) as recently as early December 2004, Mr Tubungbanua was still being given the impression that his job may be made permanent. 59 The other document that lends independent support and tends to corroborate Mr Tubungbanua's version of events is attachment 3 to Mr Tubungbanua's statement, the dimension data performance review form.

60 These are matters (ie allegations of workplace performance) which may be more fully explored in the substantive hearing. In relation to the application before me I must balance the competing considerations which I have outlined above. Having balanced those competing considerations, I am of the view that the balance of convenience favours the granting of the interim orders. Orders

61 I make the following orders: (1) Subject to any further order of the Commission, the respondent is to re-employ Mr Tubungbanua to a position at its premises at 14A Baker Street, Botany, New South Wales, such position to be commensurate with the position occupied by him at the time of his termination on 26 January 2005. (2) This re-employment is effective from 27 January 2005 and is to remain in force until the final determination by the Industrial Relations Commission of New South Wales of the proceedings IRC05/799.

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