Harvey v AJ Mills & Sons Pty Ltd

CASES CITED: Outboard World v Muir (1993) 51 IR 167 Huseyin Arslan and others and Berkeley Challenge (Commercial) Pty Ltd and Others [2001] NSWIRComm 45

APPLICANT Mr Walker of counsel Solicitors LEGAL REPRESENTATIVES: Ellis & Baxter Solicitors

RESPONDENT Mr S Radburn, solicitor Somerville Laundry Lomax & Co

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Andrew Anthony Harvey re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application by Andrew Anthony Harvey for unfair dismissal against AJ Mills & Sons Pty Ltd, pursuant to section 84 of the Industrial Relations Act 1996. The application showed that Mr Harvey was dismissed from the position of driver (heavy vehicle) based at Tweed Heads on 16 March 2006, having been employed by the respondent since 9 May 2005. 2 Mr Harvey had previously worked on and off for the respondent since October 2003. He commenced in August 2005 as an interstate truck driver and after an illness and diagnosis of diabetes in August 2005, requested and was granted a transfer to the Brick Truck which was a day job, not entailing extended periods away from home. This resulted in a substantial loss of income for Mr Harvey. 3 Mr Harvey discussed the option of working as a casual driver with his supervisor, but the supervisor confirmed that, as a casual, there would be no guarantee of a minimum number of days' work. 4 When work was quiet, Mr Harvey said that he suggested he take some annual leave, and this was agreed. Before he went on leave he asked if his job would still be available on his return. Cory Chisholm, Mr Harvey's supervisor, said: "There is no reason why it shouldn't be." Ben Hawkey, who also issued work directions to Mr Harvey, also told Mr Harvey he was not expecting any change during the two weeks of annual leave. Mr Hawkey acknowledged that Mr Harvey's work had been quiet. 5 During his annual leave, on 16 March 2006, Mr Harvey rang the respondent's Sydney depot to ask about the demand for interstate driving, thinking that he might apply to return to interstate work to raise his income level. Mr Harvey gave evidence that, when he rang Mick Mills at the respondent's Murwillumbah office to ask about interstate work, Mr Mills said he would call him back. About ten minutes later Mr Mills called to say there were no interstate positions available. Mr Harvey gave evidence that Mr Mills then said: If you want to work interstate ring Ross Brims. I'm sure he's looking for drivers. If you want interstate then you will have to look for work with another company. 6 When Mr Harvey reminded Mr Mills that he was due back to work the following Monday, following his annual leave, Mr Harvey stated that Mr Mills said: No you're not. We have looked at your work record and you have chopped and changed about five times. We have restructured your position and there is no job for you to come back to on Monday. Don't bother coming back.

7 Mr Mills, on the other hand, said he offered Mr Harvey interstate work and told him that his position as a local driver was redundant. 8 Mr Chisholm, the Operations Manager for Mills Bricks & Pavers, Tweed Heads, a company closely related to Mills Transport for which Mr Harvey worked, said he was not aware of the decision to make Mr Harvey redundant until after it happened but that he "can understand why the decision was made". He then set out in his witness statement a series of concerns about Mr Harvey's work ethic, some incidents at work and his belief that Mr Harvey was looking for other work and was tying to force Mills Transport to sack him. 9 Mr Hawkey, General Sales Manager, Mills Bricks & Pavers, also became aware of the redundancy only after the fact. He said it was the responsibility of Mills Transport to make arrangements to suit the clients' needs. 10 Wilfred Mills, known as Mick Mills, is a Director of the respondent which trades as Mills Transport. He gave evidence that Mills Bricks & Pavers, Tweed Heads had experienced a 52% decline in sales in the three months to February 2006 compared with the three month period from September to November 2005. He said that he decided to make Mr Harvey's position redundant after he had spoken with Mr Chisholm and Mr Hawkey. 11 The respondent argued that the applicant's position had been made redundant, following a decision to streamline the way deliveries were made. An employee with 28 years' experience and a good employment record was preferred over the applicant, who had been employed for less than one year and whose record included a number of unacceptable incidents and warnings. In his written evidence, Mr Mills said that two other employees had been made redundant in the restructure and depots were closed. In his oral testimony, Mr Mills said that the Kyogle depot was closed and he thought two employees took redundancy and others were re-located. He did not say when this occurred. 12 Written statements of evidence were provided by Mr Chisholm, Mr Hawkey and Ross Campbell, Transport Manager at the respondent's Murwillumbah Depot. They were not called to give further evidence. Much of their evidence was consistent with the applicant's evidence, particularly in regard to events relating to change from interstate to local driving, casual work and annual leave.

13 Mr Hawkey confirmed the respondent's position that sales at Tweed Heads were declining at the time of Mr Harvey's dismissal. He said: Sales for Tweed Heads have declined since Christmas and the Tweed Heads brick truck had definitely been under utilised. Over the past twelve months Mills Transport has been streamlining the way our brick deliveries have been made and attempting to improve the utilisation of the portion of their fleet which is dedicated to Mills Bricks & Pavers. The B-Double fleet has been increased to make deliveries direct to site from the brick yard. The Lismore trucks which were running to Brisbane empty now make Murwillumbah and Tweed Heads deliveries on the way through. The Ballina brick trucks have been transferred to Lismore depot to improve utilisation of the fleet and eliminate crossing over of vehicles. Kyogle transport and brick depot has been closed. This area is now serviced from Lismore and Casino. 14 As to the day of the dismissal, Mr Hawkey confirmed that Mr Harvey rang him to tell him about it but did not recall if they discussed future transport needs. He did not deny the terms of the conversation as set out in Mr Harvey's affidavit. Mr Harvey's written evidence was that the telephone conversation between himself and Mr Hawkey commenced as follows: I said to Ben, "What's going on?". Ben said, "I just got off the phone to Mick. It's the first I have heard about the restructure and Mick told me to keep my nose out of it sonny".

The conversation that followed, in Mr Harvey's recollection, was about future transport needs. Submissions 15 Mr Walker, counsel for the applicant, submitted that the applicant's version of events should be preferred for the following reasons: · the greater proportion of the respondent's witnesses' affidavits supported the applicant's evidence; · the applicant was honest about all matters, including two incidents about which he was given verbal warnings, and his need to 'chop and change' his work arrangements to suit the demands of his young family; · Mr Mills conceded that his memory is not as good as it once was, whereas the applicant is a younger man who demonstrated a good recall of events and details; and · the evidence of Mr Hawkey and Mr Chisholm reflects a good relationship between the applicant and his supervisors. 16 Further, Mr Walker submitted that the incidents for which Mr Harvey received warnings were irrelevant to the proceedings because the respondent was arguing that the dismissal was a redundancy. Mr Walker submitted that the dismissal was not a genuine redundancy but was an unfair dismissal arising from what the respondent described as 'chop and change' in employment status and the applicant's work record. 17 Mr Radburn, for the respondent, said that Mr Harvey's position had been made redundant because of a downturn in work in the building industry and because the respondent found a new, more efficient way of doing the work. He submitted it was a genuine redundancy, with the evidence showing that Mr Harvey knew that the work had decreased. 18 Mr Mills' evidence that there was a shortage of interstate drivers in the industry generally supported the respondent's case, said Mr Radburn. He submitted that it should be accepted that Mr Harvey was offered interstate work as an alternative position when his local driving position became redundant. The documentation issued on termination was also consistent with redundancy. 19 The selection of the applicant was a simple choice, said Mr Radburn. The respondent had two local drivers: Mr Harvey and another, based at Murwillumbah, who had worked with the respondent for 18 years. The other employee was selected to remain because of his long service and his loyalty to the company. 20 The decision to restructure the position was made during the applicant's leave, according to Mr Mills' evidence. Alternative employment in the form of interstate driving was offered, but the applicant did not want it because of his family circumstances, said Mr Radburn. Mr Mills also offered to talk to a colleague in support of Mr Harvey. 21 It was submitted that the applicant had contrived to be dismissed because he wanted to work for himself. Mr Harvey had bought a tipper truck in December and was currently using it in developing his own business. This was the reason he did not accept interstate driving work when it was offered to him, said Mr Radburn. Consideration 22 I have considered all of the evidence, not only that which is summarised above. The onus is on the applicant to prove that his dismissal was harsh, unreasonable and unjust. 23 I do not accept Mr Chisholm's assertion that Mr Harvey was trying to force the respondent to dismiss him. On the contrary, I accept Mr Harvey was making genuine attempts, on an ongoing basis, to balance his family responsibilities. 24 I have no doubt as to the accuracy of the business decline which led to the respondent's decision to carry out the work, previously undertaken by Mr Harvey, in a way that was more efficient and cost-effective. I am satisfied that no-one has been employed to replace Mr Harvey in that position. That is, I am satisfied that the position no longer exists. I am also satisfied that the respondent had good and adequate reasons to retain the Murwillumbah driver rather than Mr Harvey, given that employee's lengthy and loyal experience with the respondent. 25 However, it is well-established that even a genuine redundancy may be harsh, unreasonable or unjust: Outboard World v Muir (1993) 51 IR 167. The relevant principles are summarised by Sams DP in Huseyin Arslan and others and Berkeley Challenge (Commercial) Pty Ltd and Others [2001] NSWIRComm 45. 26 In the current proceedings there is little in dispute, apart from the disparate versions of the telephone conversation between Mr Harvey and Mr Mills on 16 March. I prefer Mr Harvey's version of that conversation for the following reasons: · Mr Harvey's version of previous events and conversations was consistent with that of the respondent's witnesses, showing both accurate recall and honesty in his evidence; · there is no reason to doubt that Mr Harvey remained consistent in the accuracy and honesty of his testimony; · Mr Harvey's evidence that he rang Mr Mills to ask for interstate work was consistent with his earlier evidence that the previous times he had spoken to Mr Mills were to seek employment, whereas he would not have rung Mr Mills, as was suggested, simply to check on his work for the following Monday; and · Mr Mills' evidence that he spoke to Mr Campbell and Mr Hawkey prior to dismissing Mr Harvey was inconsistent with Mr Harvey's evidence and also inconsistent with that of Mr Campbell and Mr Hawkey. 27 It follows that I accept that Mr Harvey rang to ask for interstate work. Rather, I expect that when Mr Mills made enquiries in response to this request, he discovered that Mr Harvey had 'chopped and changed' in his employment over the years, and that there were a number of incident reports on his file. He may then have decided to restructure his workplace to remove any inconvenience. I do not accept that this was a considered decision, but was one made on the spur of the moment. I do not doubt Mr Mills' capacity to make sound business decisions, given his extensive experience and his industry knowledge. However, in doing so in the circumstances as described, Mr Harvey's dismissal was effected in a way that can only be described as harsh and unreasonable. 28 Mr Harvey had a varied employment record, but all changes were made when he made a request and approval was granted. No change resulted, for example, from disciplinary proceedings. He was simply following past practice in approaching Mr Mills to make a further change to his work. He did this on his own time, while he was on annual leave, and was honest with his employer about his reasons for doing so. To be told "Don't bother coming back" was an unreasonable response to his request and harsh in its effect on Mr Harvey. 29 As to remedy, I find that reinstatement or re-employment are impracticable, for two reasons: the first is that the position no longer exists; the second is that Mr Harvey is developing his own business at this stage. 30 In considering compensation, I am required to take into account the applicant's efforts to find alternative employment and the remuneration received in alternative employment. While I note Mr Radburn's submission that Mr Harvey did not accept available alternative interstate work, I accept Mr Harvey's explanation about the reasons for not accepting interstate work after he was dismissed, because of his need to care for his young family. I also accept Mr Harvey's evidence that he was advertising to seek work with his own truck. While Mr Harvey is now caring for his children while his wife is employed on a part-time basis, that commitment only commenced on 31 July 2006. 31 Evidence of Mr Harvey's income from his own business showed a net income (before tax) of $1622 for the period to 15 September. I accept this figure as relevant to Mr Harvey's remuneration rather than the gross income figure, as suggested by Mr Radburn, since income could not be earned without expenditure of the sort itemised in the Profit and Loss Statement provided in evidence. 32 I note the application shows that Mr Harvey's average weekly pay was $750 per week. 33 I find that the dismissal of the applicant was harsh and unreasonable. I make the following orders. ORDERS

1. The respondent is to pay to the applicant an amount of $6000.

2. The amount in Order 1 is to be paid within twenty-one days of today, being 18 October 2006.

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