Kanes Hire Pty Ltd v Mitchell

Introduction 1 This is an appeal against a judgment of the Chief Industrial Magistrate of New South Wales given on 13 January 2010: Mitchell v Kanes Hire (unreported, Chief Industrial Magistrates Court of New South Wales, Newcastle, Chief Industrial Magistrate Hart, 125735 of 2008, 13 January 2010). 2 The appellant, Kanes Hire Pty Ltd, operated premises on the Central Coast of New South Wales. Its principal business was hiring out a range of equipment and goods. This equipment, to illustrate the nature of the business, included grinding machines, sanding machines, lawn mowers, mulchers, box trailers, cement mixers, portable toilets, fuel, sandpaper, gumboots, spades, shovels and gardening equipment. The respondent, Mr Mitchell, was employed by the appellant from 2003 until he was retrenched on or about 14 February 2008. Around that time the appellant's Central Coast operation was closed due to a downturn in business, and all employees including Mr Mitchell were made redundant. Mr Mitchell later filed an application for recovery of money against the appellant in the Chief Industrial Magistrate's Court. The application was brought under the small claims procedure in s 725 of the Workplace Relations Act 1996 (Cth). He claimed payment of the sum of $10,000, being the maximum amount allowed under that section. The application relied on, in terms, a failure: … to pay Robert Mitchell, full time Grade 4 Shop Assistant in Charge with the duty of buying and in charge of nil to 4 employees 14 weeks severance payment in accordance with clause 33 - Redundancy, Subclause 33(4) - Severance Payment of the Notional Agreement Preserving the Shop Employees (State) Award, on 14 February 2008. 3 The appellant defended the matter on a number of grounds. It disputed that the Notional Agreement Preserving the Shop Employees (State) Award ("Shop Award") applied to its business. It is unnecessary to detail the legal characteristics of the Shop Award. It is sufficient to note that it was, in substance, a state award made under New South Wales state industrial legislation which was legislatively transformed into an industrial instrument given legal effect by the Workplace Relations Act. The appellant further contended that Mr Mitchell's position at the time of his termination put him outside the classification structure of the Shop Award. Finally, it contended that Mr Mitchell had engaged in serious and wilful misconduct during the course of his employment, and that had the appellant discovered the misconduct during the course of Mr Mitchell's employment it would have been entitled to and would have summarily dismissed him. The misconduct was particularised in the reply as "accessing explicit pornographic material from the Internet and forwarding it on to third persons". 4 The area of operation of the Shop Award was established by a number of provisions:- Clause 2 - Definitions (i) 'General Shops' means and includes all shops other than special shops, and confection shops as defined in this award. (ii) 'Special Shops' means and includes audio shops, book shops, video shops, cake and pastry shops, cooked provisions shops, take-away food shops, fish shops, flower shops, garden plant shops, hairdressers' shop, newsagencies, pet shops, souvenir and gift shops, tobacconists' shops (each as defined in Schedule 1 to the Shops and Industries (Trading) Regulation 2002 to the Shops and Industries Act 1962), small shops (as defined in Section 78B of the Shops and Industries Act 1962) and retail liquor shops. (iii) 'Confection Shops' means and includes confectioners' shops, refreshment shops and fruit and vegetable shops as defined in Schedule 1 of the Shops and Industries (Trading) Regulation 2002 to the Shops and Industries Act 1962). … (v) 'Shop' - See Section 78 of the Shops and Industries Act 1962. 5 Prior to its repeal, section 78 of the Shops and Industries Act 1962 (NSW) provided:- "Shop" means place, building, stall, tent, vehicle, boat, or pack in which goods are sold or offered or exposed for sale by retail, or from which goods are sold by retail, or in which the business of a hairdresser, pawnbroker or farrier is carried on, and includes any portion of a building which is separated from the rest of the building by a permanent and substantial partition or wall, and in which goods are sold or offered or exposed as aforesaid, or in which any such business as aforesaid is carried on, and includes where the context requires it, kind or class of shop. 6 Clause 37 provided: Clause 37 - Area, Incidence and Duration This award rescinds and replaces the following award: (a) Shop Employees (State) Award published 2 June 1995 (286 I.G. 28) as varied. It shall apply to all classes of employees employed under classifications in this award who work in or in connection with a retail shop, employees employed in the sale of goods by retail away from the employer's place of business in the State within the jurisdiction of the Retail Employees (State) Industrial Committee and the Salesmen, Outdoor (State) Industrial Committee, excluding the County of Yancowinna. It shall take effect from the beginning of the first pay period to commence on or after 7 March 2001 and shall remain in force for a period of 12 months. The changes made to the award pursuant to the Award Review pursuant to section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made by the Industrial Relations Commission of NSW on 28 April 1999 (310 I.G. 359) and take effect on 14 July 2004. This award remains in force until varied or rescinded, the period for which it was made already having expired. 7 The Shop Award went on to set out the jurisdiction of the Retail Employees (State) Industrial Committee. Relevantly, the jurisdiction of that Committee was: Industries and Callings Section I All persons employed in or in connection with a shop and/or automatic vending device including (but without limiting the generality of the foregoing) sales assistants, self-service employees, demonstrators, ticket writers, checkout operators, grocery orderperson, reserve stock hands, display hands, window dressers, persons engaged in the hiring of goods in a shop, office assistants, telephone attendants, delivery clerks, persons employed on machines designed to perform or assist in performing any clerical work whatsoever, and cashiers employed solely as cashiers and/or on other clerical duties, in the State, excluding the County of Yancowinna; excepting- Van salesperson; Storeperson and packers; Employees other than sales assistants, in restaurants, tea shops and cafeterias; Persons employed selling motor oils, accessories and petrol at or in motor garages and parking and/or service stations or petrol from petrol pumps; Drivers of trolleys, drays, carts, motor and other power-propelled vehicles, loaders, brakesperson, extra hands, grooms, stableperson and yardperson; Cleaners; Employeees, other than sales assistants, in or in connection with hospitals, mental hospitals, public charitable institutions or ambulance work; Butchers, persons engaged in the sale of uncooked meat by retail, carters and other persons delivering such meat, and cashiers in butchers' shops; and excepting persons employed by - Sydney Electricity; The Australian Gas Light Company; and excepting also employees within the jurisdiction of the following Industrial Committees - Commercial Travellers (State); County Councils (Electricity Undertakings) Employees, Models and Mannequins (State); Motor Vehicle Salesperson (State); Northern Rivers County Council; Pharmacies (State); Shortland County Council. Note: 'Shop' in this constitution shall have the same meaning as 'shop' as defined in section 78 of the Shops and Industries Act 1962, or in any Act amending or replacing that Act. 8 Also relevant is the clause prescribing wage rates and the classifications it comprehends. It provided: Clause 38 - Wages (a) The minimum rate of pay for each classification incorporating both the base rate and supplementary payments is expressed for each classification as set out in Table 1 - Wages. (b) The rates of pay in this award include the adjustments payable under the State Wage Case 2005. These adjustments may be offset against: (i) any equivalent over award payments, and/or (ii) award wage increases since 29 May 1991 other than safety net, State Wage Case, and minimum rates adjustments. (c) Junior employees - Junior employees and improver waiters/waitresses shall receive the percentages set out in (iv) of Table 1 - Wages of the appropriate adult rate prescribed in Group No 1 of Table 1 - Wages. PART B MONETARY RATES Table 1 - Wages Group Description Former rate per SWC Total number week $ 2009 $ rate per week $ 1 Shop assistants, demonstrators, trolley collector, salespersons outdoor, employees driving a forklift or using mechanical equipment as required, the role of Santa Claus, ticket writers, mannequins, order hands, reserve stock hands (including reserve stock hands in theatre distributing services), employees delivering goods (other than newspapers and the like) by bicycle or tricycle, employees engaged in the cooking or the preparation of provisions for sale in the shop of the employer, cashiers in special shops, persons employed on information desks and/or on customer services or as full-time shop of the employer, cashiers in special shops, persons employed on information desks and/or on customer services or as full-time messengers, employees engaged in the installation (other than installation requiring trade skill), servicing, stocking, collection of money from, and preparation of, commodities for sale in automatic vending devices, employees engaged in the pre-packing, weighing, pricing of fruit and/or vegetables on the shop premises, employees principally engaged in hiring out activities in a shop, and waitresses in confection shops employed waiting on tables for two hours or more per day. 525.80 17.00 542.80