BARRY JOHN LOWE - v - PROFOUND DAIRY MANAGEMENT PTY LTD

s of their intention to cease to act. The matter proceeded undefended and the only evidence called was from the applicant in person. He told the Court that he is 32 years of age. He was raised on a diary farm and has had three years' service in the army with some six and half years' employment with BHP as a crane driver and operator. The respondent's dairy business and properties at Stanhope are managed by a person identified by the applicant as Rob Ewing (Ewing). The applicant has had a longstanding association with Ewing and early last year indicated to Ewing that he was looking for a house to rent in Stanhope. He was then told that there was a property referred to in Court as the Kings property available for rental at the rate of $120.00 per week. On the date upon which the applicant was interviewed as a prospective tenant for the property, he asked if there was any work available at the respondent's property with the possibility of lower rent being charged in return for work performed. Ewing subsequently offered him two weeks' part-time work on the farm. In respect to the part-time work the applicant told the Court that he was paid directly by Ewing by cheque; receiving $317.00 gross per week for a 40 hour week. Some three days into his part-time employment the applicant was asked if he wanted full-time employment because, in Ewing's words, another employee was "useless" and Ewing intended to sack that employee. The applicant took the opportunity to obtain full-time employment and started that employment on 27 February 1995. Broadly speaking the applicant described his duties as including irrigation on the farm consisting of some 1,500 acres, checking cattle, looking after the tractor, fencing, maintenance, general farm work and overseeing other employees. It appears that from early in the applicant's employment there was some discussion about formalising the arrangement with a written contract. The applicant at some stage pointed out to Ewing that he had the opportunity to obtain alternative employment in which he was able to earn $10.00 per hour with significant paid overtime. In response to this he claims Ewing said that the respondent could match that rate of pay. Eventually it was agreed that the applicant would receive $10.00 per hour for a 40 hour week and any overtime would also be paid at the rate of $10.00 per hour. There was overtime on Saturdays, with early starts, and night watering of the farm. When the applicant was offered full-time employment there was also discussion about the availability of a rent subsidy for he and his fiancee, both of whom who were occupying the farm house on the property. Ewing told the applicant there would be a rent reduction and that he would try and arrange for a reduction as low as possible and get back to them. Eventually the applicant was informed that the reduction was to be $50.00 per week from the $120.00 per week then being paid by the applicant on the property. The reduction was first implemented seven weeks after the commencement of the applicant's full-time employment, however, by agreement with Ewing, the reduction was to be backdated to the first week of the applicant's employment. This never happened and because of this the applicant has notified the respondent of a claim for a rent refund for seven weeks totalling $350.00 also seeking an order from the Court in its accrued jurisdiction for payment of this sum. Apart from the rent reduction the applicant submitted, and I accept this submission, that his salary package included the $50.00 per week reduction up until the date of the termination and such sum should be treated as a component of his salary for the purposes of calculating his entitlements. The applicant's evidence is that pursuant to the initial employment agreement he was paid overtime of $10.00 per hour, however, after a couple of weeks Ewing informed him that all overtime would accrue and that he should take this accrued overtime as leave during quiet periods. By the end of May 1995 the applicant claimed to have some 125 hours of accrued overtime which Ewing informed him he could take when it was quiet. It appears that during June and July he did take some leave which was not annual leave but was in lieu of payment of overtime. At the date of dismissal the applicant alleges that he was owed up until July 1995, 57 hours in unpaid overtime. In the week preceding the termination, he alleges that he also worked some 13 hours of overtime for which he was never paid. Insofar as overtime is concerned, there appears to have been a change in the terms of his contract during July and after his return from the leave taken to offset the accrued overtime then owing. In any event, for the purposes of this proceeding it is sufficient to note that the 57 hours unpaid overtime is claimed in the Court's accrued jurisdiction; notice of that claim being given to the respondent through its solicitors prior to this hearing. In addition to the earlier amount claimed for overtime, the applicant also alleges that by the date of termination and after he was told by Ewing he could not have any overtime, Ewing subsequently agreed that he would be entitled to take a day's leave from time to time when it was quiet or wet to make up for the extra time he regularly worked. Indeed, at termination the question of outstanding overtime was discussed, with Ewing stating to the applicant that he should take one week's time in lieu of the overtime owing. In other words, at the date of termination Ewing represented and the respondent paid to the applicant (see Exhibit A2), a payment referred to as "time in lieu" of $480.77 which was then the rate of pay payable for the applicant's base salary against the outstanding overtime. At termination, which occurred on Wednesday, 27 September 1995, the applicant had already worked 39 hours of an expected 48 to 50 hour week. Accordingly, the hours of work owed to the applicant as at the termination date totalled 109 hours for ordinary hours and overtime hours. His termination pay of $480.77 paid as against all the accrued ordinary hours of work and overtime covers 39 hours of work and some 9 hours of overtime, leaving a balance for unpaid overtime of 61 hours; that is to say a claim of $610.00. In addition to the abovementioned amounts, the applicant told the Court that he was owed holiday leave of approximately twelve days totalling $847.95. This claim was also notified to the respondent and remains unpaid. The applicant's contract of employment originally negotiated was varied during the period between the commencement of his employment and the date of termination. In late March he told the Court that Ewing approached him and informed him that he, Ewing, was to take over management duties of another property and wanted the applicant to accept more responsibility with the prospect of receiving more money and having extra staff work under him. He was then informed that he would receive a mobile phone and a utility truck for use. Initially Ewing informed him that the change would mean an improvement in his salary and a contract would be drawn up. The applicant increased his responsibilities as requested but the discussion as to the terms of his contract and an indication as to the increase to be received in his salary did not come to fruition until at least July 1995; after he had returned from taking leave to offset accrued overtime. On his return he was given a hand written document by Ewing (see Exhibit A1) which contained an offer of $25,000 per annum for 50-55 hours per week, including one day each weekend and the sharing of night irrigation duties. The offer also referred to the $50.00 per week rent reduction "already in place" but stated that there would be no time off in lieu of overtime worked. The offer only increased the applicant's base salary to $480.77 per week however the hours he was expected to work in order to earn that salary with the inclusion of all overtime in the package was not acceptable to him. The applicant pointed out that in effect the offer showed a drop in the hourly rate paid to him to a figure below $10.00 per hour. Although the applicant was not happy with the offer, he essentially accepted the broad terms of the offer whilst agreeing with Ewing that work hours would be between 48-50 hours per week. His uncontradicted allegation is that subsequent to the offer and his acceptance of the new responsibilities, Ewing indicated to him that he could take the "odd day" off when it was raining or the farm was not busy to offset the large amounts of overtime he was working. Indeed, because of the matters raised in their last discussion on 27 September 1995, it is apparent that Ewing accepted that the applicant needed to be rewarded for the accrued overtime; attempting to do this by not requiring him to work out any period of notice. The applicant told the Court that throughout the period of his employment with the respondent, Ewing had nothing but praise for his efforts. He received no warnings or counselling concerning his conduct or performance as an employee. On Tuesday, 26 September 1995 the applicant was involved in training a young employee. During the course of the afternoon he had a discussion with this employee; such discussion centred around the work Ewing was doing and the use of farm facilities by Ewing to look after his own cattle. The conversation also turned to the amounts per hour the respective employees were earning. The applicant conceded that during the discussion with the younger employee, he warned him and through him his colleagues to watch their pay and overtime because in the past there had been problems being paid by the respondent. Given the matters before the Court in the present case, it seems that the applicant's unguarded observations were accurate at the time. On the following day, Wednesday, 27 September 1995, the applicant had by then worked considerable overtime in performing night irrigation. In the morning he had to move a diesel pump to pump water on another part of the property and as he was riding his motor cycle along the road, he met Ewing who was driving in the same area. The applicant stopped and attempted to start a conversation with Ewing. It was then that Ewing said, "I believe you had a bit to say yesterday", this comment obviously referring to the applicant's conversation with the other employee. Ewing went on to tell the applicant that he could not "shit can" Ewing and told the applicant he had a week's notice commencing immediately. The applicant told the Court that he did inform Ewing that what he had said in his conversation with the other employee was true and that it was a warning to the other employees to take care concerning their wages. Ewing's response was to tell him that that was "crap" and despite the applicant's attempt to discuss the matter with him, Ewing told him "I don't give a fuck - you're out of here". The conversation between the men shifted to the question of the hours still owing to the applicant, who reminded Ewing that he was owed 57 hours overtime as well as overtime for the preceding week, yet to be calculated. Ewing's response then was that the applicant could take the overtime by not working during the week's notice. As already indicated above, the 48 hours paid for fell some 61 hours short of the mark in compensating the applicant for the time already worked with his employer. Apart from the applicant's wages entitlement, the other matter of considerable concern to him and his fiancee was the question of their continuing accommodation. On the date of the termination Ewing informed the applicant that he would have to leave the house within seven days. The applicant insisted on his right to have 60 days' notice and paid $120.00 per week thereafter. He and his fiancee were able to find alternative accommodation within six weeks and moved. The applicant now claims a continuing loss of rent rebate from 27 September 1995 as a part of his compensable loss. He also seeks reimbursement of mobile telephone expenses of $80.00, having produced to the Court a bundle of Telecom invoices (see Exhibit A3) showing mobile phone call charges of approximately $60.00. The applicant alleges that following the increase in his responsibilities, that although he did not get a mobile telephone, he was informed by Ewing that he would receive reimbursement for mobile phone calls made to Ewing's mobile telephone to report farm activities; he was never paid these amounts and his estimate of the cost for the whole period is some $80.00. Insofar as the applicant's evidence is uncontradicted, I am satisfied that, first, there was termination of the applicant's employment at the initiative of the respondent. Secondly, the respondent's failure to defend the proceeding means that it has not discharged the burden of proof it carries to show that there was a valid reason for termination. Apart from contravention of section 170DE(1) of the Act, the applicant also relied on the procedural fairness provision contained in section 170DC of the Act, saying that he was not given any adequate opportunity to explain his conduct on 27 September 1995. His evidence does suggest that once Ewing believed the applicant had been talking out of turn, he dealt with him in a high-handed fashion; not affording any reasonable opportunity to explain his conduct. Accordingly, prima facie, there was a breach of section 170DC of the Act. REMEDY The applicant does not seek reinstatement. Since 4 December 1995 he has been employed by Manchester Tank & Equipment Co. earning a gross weekly income of $397.84 and working an average of 30 hours per week in a position characterised as that of a permanent casual employee. He has not been able to replicate his full-time employment with the respondent; nor since the date of the unlawful termination has he been able to obtain employment providing him with the hours and benefits associated with his previous position. At termination the respondent declined to provide the applicant with an Employment Separation Certificate and has further declined to provide any details of any superannuation payments made; the latter item being the subject of further investigation through the Australian Taxation Office. I am satisfied that it is not practicable to reinstate this employee and it is appropriate to order the alternative remedy of compensation in all the circumstances. To 4 December 1995 the applicant suffered a loss of base salary of $4,807.70. From 4 December 1995 to the date of hearing the shortfall in his income was $82.93 per week, totalling $3,151.34. In addition to these amounts the applicant also seeks compensation for the loss of the rent rebate since 27 September 1995 to the date of hearing totalling $1,900.00. Accordingly, his claim for compensation for loss of remuneration to the date of hearing is $9,859.04. In addition to this amount, the applicant claims that his loss is ongoing and that he has also lost the security of full-time employment, the benefit of a rent subsidy and work related accommodation. The applicant's gross salary package was $27,600.04 per annum. In accordance with section 170EE(3) of the Act, the ceiling applicable to the compensation this Court can award is $13,800.02. Accepting as I do the applicant's claim to be entitled to be compensated for the remunerative loss up to the date of hearing on 18 June 1996, I am further satisfied that his continuing loss as well as his loss of job security entitles him to compensation exceeding the ceiling applicable to compensation payable under the Act. Accordingly, the order for compensation is for the payment of $13,800.02. On the accrued jurisdiction claim, I am satisfied that the applicant has established an entitlement to paid overtime of $610.00, unpaid annual leave of $847.95, a rent refund for seven weeks of $350.00 and reimbursement of mobile phone call expenses. This gives a total of $1,887.95. Because of the rather unusual action by Ewing in giving the applicant time in lieu of outstanding overtime payments, the applicant did not receive any proper notice or compensation in lieu of notice in accordance with section 170DB of the Act. Accordingly, the applicant is entitled to one week's pay paid as damages pursuant to section 170EE(5) of the Act. This amounts to a sum of $530.77 which sum represents the whole of his salary package at the date of termination. MINUTES OF ORDERS THE COURT DECLARES THAT: 1. The respondent terminated the applicant's employment on 27 September 1995 in contravention of Division III Part VIA of the Industrial Relations Act 1988. AND THE COURT ORDERS THAT within 21 days of the date of these orders the respondent pay to the applicant the following amounts less any sum required to be deducted therefrom by the respondent pursuant to the Income Tax Assessment Act 1936 and actually paid to the Commissioner of Taxation: 2. Compensation in the sum of $13,800.02 pursuant to section 170EE(3) of the Industrial Relations Act 1988. 3. Damages in the sum of $530.77 pursuant to section 170EE(5) of the Industrial Relations Act 1988. 4. The sum of $1,887.95. AND THE COURT FURTHER ORDERS THAT: 5. There be liberty to each party to apply to the Court on reasonable notice on the amounts payable pursuant to orders 2, 3 and 4 of these orders. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 25 June 1996 Solicitors for the Applicant: Dawes & Vary Pty Counsel for the Applicant: Mr D. Burnett No appearance for the Respondent. Date of hearing: 18 June 1996 Date of judgment: 25 June 1996