Wong Kee v Temporary Fence Hire Pty Ltd and another

Smajlagic and Heidi and Ellis Karhunan [1999] NSWIRComm 117 Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd t/as Dymocks Parramatta [2001] NSWIRComm 46 CASES CITED: Larcombe and EBL Catering [2001] NSWIRComm 149 Jones v Dunkel and Others (1958-59) 101 CLR 298 Lorenzato and Sydney Water Corporation [2002] NSWIRComm 277 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

APPLICANT Mr J Boghossian, solicitor Employment Help Lawyers LEGAL REPRESENTATIVES: RESPONDENTS Mr G Ferris, agent Practical H R Solutions

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Tofifou Wong Kee and Temporary Fence Hire Pty Ltd and another

Application by Tofifou Wong Kee re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application by Mr Wong Kee for unfair dismissal against Temporary Fence Hire Pty Ltd and Sydney Clerical Pty Ltd ("the respondents") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 Temporary Fence Hire Pty Ltd is in the business of hiring temporary and mobile fences. Mr Wong Kee was employed to load and unload trucks, install and dismantle temporary fences, drive a forklift, and yard work. Sydney Clerical Pty Ltd was described by Mr Ferris as the employing organisation. He appeared for both respondents, accepting joint responsibility for the employment of the applicant. 3 The application was originally made against the two named respondents as well as Total Staff Pty Ltd and Fence Haulage Pty Ltd. At the commencement of the hearing it was clarified that the application was proceeding against the first two named respondents only. 4 Mr Ferris raised two issues of jurisdiction. Firstly, he submitted that the applicant had been employed as a casual employee and was therefore exempted in accordance with s 83(2) and Regulation 6. Secondly, he submitted that the applicant was excluded from making an application pursuant to s 84 because he was not dismissed by the employer. Casual employment 5 It was agreed between the parties that the applicant had been employed for a period of 13 months and that he had, or may have had, an expectation of ongoing employment. Mr Ferris submitted that there was not a 'regular and systematic' pattern of employment. He relied on the evidence and on the decision in Smajlagic and Heidi and Ellis Karhunan [1999] NSWIRComm 117, in which Deputy President Sams set out the characteristics of irregular casual employment. The characteristics included shifts unequal in length and short notice of the work, both of which applied in the present case. 6 Mr Boghossian for the applicant relied on the decision in Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd t/as Dymocks Parramatta [2001] NSWIRComm 46 and a later decision by Sams DP in Larcombe and EBL Catering [2001] NSWIRComm 149. 7 S 83(2) provides relevantly as follows: This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes : ...... (c) employees engaged on a casual basis for a short period, ......

8 Regulation 6 reads in relevant part: For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act : ...... (d) employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer. 9 The questions which arise from the Dymocks decision are: whether the applicant was engaged for a short period and, if so, do parts (i) and (ii) of paragraph (d) of the regulation apply. 10 In this case it was not argued that 13 months is a short period, and I agree that it is not in the current circumstances. Similarly, I agree that the applicant would have had a reasonable expectation of continuing employment, having worked every day, Monday to Friday, over the relevant period. In particular, the employment records submitted in evidence show that he only had nine days off since the end of June 2005, being one period of two consecutive days and the rest being single days. 11 The question at hand, then, is whether the applicant was engaged on a regular and systematic basis. In arguing against the proposition, Mr Ferris drew on evidence that: · there was no systematic way of allocating shifts to staff, · the nature and availability of work was flexible and dictated solely by orders placed by customers and was unpredictable from one day to the next, · the use of casuals was the usual practice to cover the irregular pattern of hours required to fulfil customer orders, · work was allocated to casual employees as they made themselves available, · the hours of shifts worked by the applicant were unequal in length, frequently less than a full day, · shifts finished at different times each day, · the applicant has been employed in different capacities and on different trucks, and · there were no written rosters and no casual employees are provided with a pattern of work in advance. 12 The employment records showed that the applicant worked on every week from the week ending 3 July 2005 to the time of termination of the employment relationship. Up to the week ending 12 February 2006, Mr Wong Kee worked on average 42 hours per week, with a range of 27.5 to 58 hours per week. There was no week when he worked less that three days. There were only 9 days when he did not work, including Christmas Day when the respondents' business did not operate. Mr Andrew, the Manager of the Sydney yard, said that the absences were not excessive, in his view. Only two of the days were days when there was no work available for the applicant; on the other days Mr Wong Kee had not been available due to his illness or, on one occasion, the need to care for his child. 13 Mr Andrew gave evidence that the nature of the work was demand driven, and it was normal for work to be allocated from one day to the next. He engaged a group of core casuals, as well as 'floaters' to make up the excess work. He said the busy time of year was October to March, with a quieter period from about May to September. Twenty to 30 casual workers were needed during the busy period, with about 16 casual employees working during the quiet times. Mr Andrew described Mr Wong Kee as a core casual. 14 I am satisfied that the lack of rostered shifts and the short notice for work did not affect the applicant's pattern of work. The short notice and the variation in daily hours are simply a characteristic of the industry. The hours were short on a day when there was a short run, and the employees worked in accordance with the run sheet they were given. Mr Wong Kee said the usual practice was to complete the run, clean the truck, sign off and go home. If time allowed and the next day's run was known, the driver and offsider would pack the truck ready for the next day. The driver and offsider would sign off for the day at the same time as each other. It appears to me that the flexibility of daily hours was a matter that suited the employer's convenience and cannot be now used to remove any rights from the applicant. 15 I find that the tests in Dymocks have been satisfied. Specifically, the day to day nature of the engagement provides a pattern of employment which, when seen as a whole, shows regular and systematic employment for more than a short period. That employment was for at least 27.5 hours and averaged 42 hours per week. Based on these figures, and on the fact that he was regarded as a core casual, the applicant would have a reasonable expectation of ongoing employment. The application is not exempted from Part 6 of Chapter 2 of the Act by virtue of being a casual employee. Termination of employment 16 Mr Ferris submitted that the applicant was not terminated by the respondents, but simply did not make himself available for work either by turning up at the yard, as was the usual practice, or by telephoning to ask if work was available. 17 Mr Wong Kee, on the other hand, gave evidence that on 16 February 2006 a manager, Mr Tom Wessell, told him that "we no longer have work for you" and that "work's quiet and my hands are tied from Brisbane". Mr Wong Kee then rang Brisbane, where the head office of the respondents was located, to ask for a Separation Certificate, which he received two weeks later. This evidence was essentially unchallenged. Neither Mr Wessell nor Mr Chris Taylor, who had also spoken to Mr Wong Kee on 16 February, were called by the respondents to give evidence. 18 The decision of the High Court in Jones v Dunkel and Others (1958-59) 101 CLR 298 makes it clear that if there is a witness who could support a particular case who is not called, the presumption must be drawn that they would not have assisted that case. This rule has clear applicability to the present proceedings. It follows that Mr Wong Kee's evidence must be accepted. I find that Mr Wong Kee's employment was terminated by the respondents. 19 This finding is not affected by the evidence that Mr Wessell is said to be employed by Fence Haulage Pty Ltd, and that Mr Andrew, who is senior to Mr Wessell, was not aware that Mr Wong Kee was being dismissed. It would seem from the initial need to nominate four respondents and the respondents' lack of clarity about the relationship between the various companies, that it is unsurprising that the applicant did not question Mr Wessell's authority over him. The applicant had never received a letter of appointment, and until at least April 2005 his pay advices did not show the name of his employer. It was not up to him to know or understand the lines of hierarchy or the complexity of the relationships between the various companies and/or their management structure. Also, I accept the evidence that Mr Wong Kee had seen other employees not return to work after Mr Wessell had spoken to them, and that Mr Wong Kee took this as an indication of Mr Wessell's authority to dismiss him. Harsh, unreasonable or unjust 20 Mr Wong Kee gave evidence that he was told that "work's quiet" as a reason for his dismissal. He was issued with a Separation Certificate that showed that his employment was terminated due to 'shortage of work or redundancy'. On the evidence of Mr Andrew, there was not a shortage of work at that time. It follows that the reason given to the applicant, both verbally and in writing, had no basis in fact. 21 I accept Mr Wong Kee's evidence that he had been given no prior warnings about his performance or conduct at work. Mr Andrew confirmed that the applicant had "no more issues than anyone else". 22 No reason for Mr Wong Kee's dismissal emerged during the proceedings. 23 I find that the dismissal was harsh and unjust. Remedy 24 The applicant did not seek reinstatement or re-employment with the respondents. In fact, he gave evidence that he was offered reinstatement to his casual position at the conciliation conference on 3 April 2006. He said: After about a week I decided that I did not want to return back to work on a casual basis because my hours may not have been guaranteed. There was also a serious issues [ sic ] that I was being underpaid, and not receiving the appropriate entitlements. 25 Instead, Mr Wong Kee sought compensation in accordance with s 89(5) of the Act. Mr Boghossian submitted that the maximum compensation available under the Act ought to be awarded as, on the evidence, Mr Wong Kee had registered with Centrelink, had cooperated with an employment agency but has been unsuccessful in finding alternative employment. He has recently enrolled in a TAFE course for Machine Operators in an attempt to enhance his skills and become more employable. 26 Mr Ferris submitted that there was no evidence of any real attempt by the applicant to find work. Additionally, the reasons given for refusing the offer of employment made on 3 April were dubious as the hours of work were never guaranteed, and any issues of underpayment could have been sorted out at any time if they had been raised with the respondents. 27 In Lorenzato and Sydney Water Corporation [2002] NSWIRComm 277, Sams DP said at [71]: Whatever might be said about the remedies available for unfair dismissal under the 1996 Act, the primary remedy has, and has been for many years, reinstatement of an unfairly dismissed employee, see Leeds and Northrup Australia Pty Limited v Hull (1992) 46 IR 11 and Beahan v Bush Boake Allen Australia Ltd (1999) 93 IR 1. As to the practicality of reinstatement I refer to the decision in Hollingsworth v Commissioner of Police No 2 (1999) 88 IR 282, which quoted with approval the decision in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, as follows: If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive . Whether the standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.

See also Little v Commissioner of Police No 2 and Oswald v New South Wales Police Service (1999) 90 IR 42. 28 I am bound to consider that reinstatement must be viewed as the primary remedy. Such an offer was made by the respondents in good faith at the time of the conciliation conference before the Commission. What was said in Perkins v Grace Worldwide (Aust) Pty Ltd about the relationship of trust may apply equally to the employee as to the employer. In this case the person who told the applicant he was dismissed worked for the respondents for a very short period and Mr Andrew, who managed the applicant's daily workload, appeared as an honest and forthright witness who knew nothing of the events of the time. 29 I accept Mr Ferris' submission that the hours of work were never guaranteed, and any issues of underpayment could have been resolved without disruption to the employment relationship. I am not aware of any efforts on the part of the applicant or his representative to negotiate terms of the settlement offer. 30 The question of trust was not critical, in my view, to re-establishing the working relationship, should Mr Wong Kee have accepted the offer made on 3 April. There were no issues between Mr Wong Kee and Mr Andrew who was responsible for the daily allocation of work to all casual employees at the Sydney site where Mr Wong Kee had worked. 31 At the time the offer was made, I cannot agree that reinstatement was impracticable. However, Mr Wong Kee has enrolled in a course at TAFE to enhance his skills. It may be detrimental to his longer term prospects if I was to order him to return to his employment at this time, interrupting his commitment to furthering his education. In the light of these changed circumstances, I find an order for reinstatement or re-employment is impracticable and I will make an order for compensation. 32 Given that the offer of re-employment was rejected a week after it was made, I find that the period for which compensation should be awarded ends at the date of rejection of the offer. 33 As to the weekly rate on which to calculate compensation, the evidence is inconclusive. The most recent pay advice shows that Mr Wong Kee was paid for 40 hours at $16.50 per hour and additional hours at overtime rates. The unchallenged evidence was that his work was covered by the Building and Construction Industry (State) Award in which, for the period commencing 10 July 2005, the minimum casual rate for a labourer was $19.14 per hour. 34 As stated earlier in this decision, the respondents' records show that Mr Wong Kee worked an average of 42 hours a week over the period for which records were provided. The Award provides for a 38 hour week, resulting in the requirement that four hours be calculated at an overtime rate. The result of this evidence is that the weekly rate for the purpose of calculation of compensation shall be 38 + (4 x 1.5) hours at $19.14. [Note: I do not go so far as to say this is the correct calculation for any claim for underpayment of wages, which is outside the jurisdiction of the Commission in the present matter.] Conclusion 35 Having considered all of the evidence before me and the principles involved, including the cases cited by the applicant's and the respondents' representatives, I have made a number of findings as set out in this decision. In summary: I find that the application is not exempted from Part 6 of Chapter 2 of the Act by virtue of the applicant's casual employment.

I find that Mr Wong Kee's employment was terminated by the respondents.

I find that an order for reinstatement or re-employment is impracticable and I shall make an order for compensation.

I find that the period for which compensation should be awarded ends at the date of rejection of the offer of reinstatement made on 3 April. I find that the weekly rate for the purpose of calculation of compensation shall be $842.16. 36 Based on these findings, I make the following orders. ORDERS 37 I order:

1. That the respondents, jointly and severally, pay to the applicant Mr Tofifou Wong Kee the sum of $5895.12.

2. That the amount set out in order 1 be paid within 21 days of the date of this decision, being 24 August 2006. ____________________________

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