DECISION NO:645/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether employee on CASUAL EMPLOYMENT pursuant to Reg 30B.
Workplace Relations Act 1996 (formerly Industrial Relations Act 1988)
Ss 170DE, 170EA.
Industrial Relations Regulations Reg 30B, 30BC.
Workplace Agreements Act 1993 (WA).
Eric Maurice KIPLING -v- STEPHEN JAMES STEWART trading as DAILY MEATS
WI 1412 of 1996
BEFORE: R. D. FARRELL JR
PLACE: PERTH
DATE: 4 December 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
No. WI 1412 of 1996
BETWEEN:
Eric Maurice KIPLING
Applicant
AND:
STEPHEN JAMES STEWART
(trading as DAILY MEATS)
Respondent
MINUTE OF ORDERS
BEFORE: R. D. FARRELL JR
PLACE: PERTH
DATE: 4 December 1996
THE COURT DECLARES THAT:
1. The applicant was a “casual employee for a short period” for the purposes of Regulation 30B(1)(d) of the Industrial Relations Regulations 1988.
Note: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1412 of 1996
BETWEEN:
Eric Maurice KIPLING
Applicant
AND:
STEPHEN JAMES STEWART
(trading as DAILY MEATS)
Respondent
REASONS FOR DECISION
(Delivered ex tempore - revised from transcript)
4 December 1996 R. D. FARRELL JR
1. This is an application under Section 170EA of the then Industrial Relations Act 1988 (now known as the Workplace Relations Act 1996) (“the Act”) for compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Eric Kipling (“Mr Kipling”), by the respondent, Mr Stephen Stewart (“Mr Stewart”).
2. Mr Stewart conducts a meat-slaughtering business as a sole trader under the trading name “Daily Meats”. Daily Meats performs contract kills for another firm, Red Meats (WA), which runs an abattoir at Capel near Bunbury in Western Australia.
3. Mr Kipling has had past experience in the meat industry, including some work (beginning when he was fourteen years of age) in an abattoir in Queensland and, more recently, a total of two years' work in abattoirs near Bunbury. Mr Kipling concedes he is not a competent slaughterperson, as that term is understood in the meat industry. I heard evidence to indicate that the terms "qualified slaughterperson" or "competent slaughterperson" are generally understood in the meat industry to mean a slaughterperson who is competent in performing at least three positions on a slaughtering chain. One year of Mr Kipling’s time in the Bunbury meat industry was spent at an abattoir known as “Goodchild's”, during which he mainly worked in the “gut room” trimming offal with a knife. He worked at another Bunbury abattoir, known as “V. & V. Walsh”, for a further twelve months. During part of that time he worked as a knife hand on a mechanised mutton slaughtering chain.
4. Having been unemployed for some months, Mr Kipling sought employment with Daily Meats and worked there performing slaughtering duties for about two hours on the morning of Monday, 21 June 1996.
5. He then left work to attend a doctor to treat a burn he had sustained while working that morning. Mr Stewart told Mr Kipling that night in a telephone call that his services were no longer required and that he was not suitable for the position.
Preliminary Issues
6. The respondent raised a preliminary issue, contending that Mr Kipling was excluded from the operation of the unlawful termination provisions of the Act by Regulation 30B of the Industrial Relations Regulations 1988. I should note at this point that the respondent’s representative, Mr Darcy, also submitted that Regulation 30BC was relevant. On my reading of the regulations, Regulation 30BC does not exclude section 170DE of the Act, which is the provision that requires there to be a valid reason for termination. It has therefore not been necessary for me to consider whether that regulation applies to these facts.
7. The submission regarding Regulation 30B was foreshadowed to some extent in the respondent's summary of facts, which included the contention that Mr Kipling had been engaged “for a trial period only”. There are two elements of Regulation 30B which might arguably apply to Mr Kipling, depending upon the terms of his employment; he might be an employee serving a period of probation or qualifying period of employment for the purposes of Regulation 30B (1)(c), or he may be a casual employee for a short period for the purposes of Regulation 30B (1)(d).
The Circumstances in which Employment Commenced
8. Mr Stewart had, as early as April 1996, placed an advertisement for a “slaughterperson” with the Commonwealth Employment Service (“CES”), providing the following details:
“Description: Qualified or very experienced person for the Bunbury region. Duties include all aspects of the trade.
Requirements: Must be qualified or have extensive experience.
Hours: Full time.
Pay: Award.”
9. The abattoir was experiencing difficulties locating and engaging competent slaughterpersons and had begun a training program of sorts to fill the gap. In any event, it seems that the advertisement lapsed some time after Mr Stewart placed it, so that it was not regarded by the CES as a current advertisement.
10. On about 12 June 1996, Mr Stewart took what was intended to be two weeks’ annual leave; Mr Reimers, one of his employees who performed the role of a foreman, was left in charge to keep the business running as smoothly as possible.
11. By about Wednesday, 19 June 1996, the business was suffering from a shortage of workers. Mr Reimers says some workers had left and another was away from work due to a work-related injury. Of course Mr Stewart, who worked alongside his employees as a slaughterperson, was also away. Mr Stewart had left some phone numbers for Mr Reimers to contact if additional labour was needed. Mr Reimers tried those numbers, but none of the people listed were available, because they had work elsewhere. Mr Reimers therefore rang the CES and advised the CES that Daily Meats needed two labourers and also a “qualified butcher”, as he put it.
12. Despite the potential for confusion arising from the description of the position as that of a “qualified butcher” when it appears what was needed was a “slaughterperson”, it appears the CES were not confused, because they revived the earlier advertisement Mr Stewart had placed for a slaughterperson.
13. Mr Kipling learned about the job at Daily Meats through the CES when one of its officers, Mr Keith Woolsey, drew his attention to the advertisement and, referring to Mr Kipling’s experience in the meat industry, suggested he apply for the position. Mr Kipling understandably adopted that suggestion, and went out to the abattoir on Friday 21 June 1996 to apply for the position.
14. Mr Kipling met with Mr Reimers about the job. There are differences in their accounts of what was said in their ensuing discussion.
15. According to Mr Kipling, Mr Reimers told him he was looking for a fully qualified slaughterman. Mr Kipling replied that he had learnt a bit about slaughtering over the past twelve months, and specifically that he had learned the tasks of “A frame”, “flanking” (but that he could not do it “real well”) and “plucking” (but that he was not very good at that). Mr Kipling went on to tell Mr Reimers that he had done “briskets”. He admitted that he could not do “back legs”. He said he had taken out hearts and lungs. When Mr Reimers asked him whether he could do beef, Mr Kipling said no, that he had only trimmed heads and tongues and washed beef. They then went on to talk about mutual acquaintances. Mr Reimers explained that they were very short staffed, and said that he would give Mr Kipling a start, working between the A frame and the brisket. At Mr Kipling’s request, Mr Reimers then rang a CES employee, Ms Michelle Fenton, and confirmed with her that Mr Kipling had been offered a permanent position. This was because Mr Kipling had applied to the CES for a grant of “immediate minor assistance” with which to buy knives. That assistance would not be forthcoming if he did not get the job.
16. Mr Reimers account differs in two respects. First, Mr Reimers says Mr Kipling claimed to be a qualified slaughterman, whereas on Mr Kipling’s account, he acknowledged to Mr Reimers that he wasn’t proficient in any of the slaughtering positions except perhaps “A-frames”.
17. Secondly and more importantly for the purposes of the preliminary question of whether or not Regulation 30B applies, Mr Reimers says that he didn’t offer Mr Kipling permanent employment and, while he rang Ms Fenton at the CES, he merely confirmed that Mr Kipling had “got a start” on the following Monday on a trial basis. Ms Fenton has no recollection of the conversation with Mr Reimers, or indeed as to whether any such conversation took place. Given that Mr Kipling and Mr Reimers agree that Ms Fenton was spoken to, I am satisfied that there was a conversation of some sort.
18. For the purposes of resolving this conflict in the evidence, I should note that on the question of whether Regulation 30B has application, Mr Kipling bears the onus of proof.
19. In resolving the conflict in evidence as to what was said by Mr Reimers to Ms Fenton it has been of assistance to consider the situation in which Mr Reimers found himself at the time of their conversation. For the purposes of this exercise I have accepted Mr Kipling's version of the rest of the conversation. The situation might be summarised as follows:
· Mr Kipling had applied for a position which is advertised as requiring a qualified slaughterperson or "a very experienced person".
· Mr Kipling concedes he was not a qualified slaughterperson and there is some doubt as to whether he could be described as “very experienced”. Mr Kipling says that he made it clear to Mr Reimers that there were limitations on his competency in doing the job.
· Mr Reimers was merely “minding the shop”. He did not usually run the business and he was seeking to address a short term shortage of labour until such time as Mr Stewart got back.
· There was uncontradicted evidence that all existing employees of Daily Meats at that time, including Mr Reimers, were engaged as casual employees.
20. In those circumstances, I consider it more probable that the employment was offered by Mr Reimers on a trial period basis, rather than Mr Kipling's recollection he and Ms Fenton were told by Mr Reimers that it was permanent.
21. I considered the possibility that, while Mr Reimers might have always intended that the employment would only be for a trial period, he might not have said anything about such a limitation to Mr Kipling. No mention might have been made about there being a trial period. However, even if there had been no discussion of the trial period previously, in circumstances where he was specifically asked to talk to the CES about it, I think it is more probably that he would have clarified the matter with Ms Fenton, with Mr Kipling looking on.
22. In reaching my findings on this point, I have considered some documentary evidence prepared by the CES which was potentially relevant.
23. Mr Kipling relied upon the fact that the Application for Immediate Minor Assistance form completed by the CES describes the expected length of employment as “perm” (sic), while the CES advertisement for the position describes the hours as “full-time”. Mr Kipling said, when I asked him, that he regarded the description “full-time” as meaning the same thing as “permanent”.
24. I will deal first with the advertisement. While they are commonly confused, permanent employment and full-time employment are of course different things. Mr Reimers, for example, was a casual full-time employee. It is also possible to be a permanent part-time employee. The fact that the advertisement describes the hours as “full-time” does not therefore mean that it offered permanent employment. I should also note that the terms of the advertisement are not conclusive of the terms of the employment. For example, the CES advertisement was inaccurate in describing the pay as “Award (pay)”, given that there was uncontradicted evidence that, like all other employees of Daily Meats, Mr Kipling was to be required to accept employment under a “workplace agreement”. Under the Workplace Agreements Act 1993 (W.A.) such an agreement would have the effect of excluding the application to the employment of any award made by the Western Australian Industrial Relations Commission. There was no suggestion that Daily Meats was the respondent to any Federal award.
25. The Application for Immediate Minor Assistance form raises a more difficult issue, because whoever originally filled in the form has written "perm" as the expected length of employment, which is clearly an abbreviation of “permanent”. Ms Fenton identified that writing as that of Mr Woolsey. Mr Woolsey did not give evidence so we have no direct evidence of what it was he relied upon to designate the position as permanent. Mr Kipling says that the occasion upon which he dealt with Mr Woolsey was on the morning of Friday, 21 June 1996 when Mr Woolsey drew his attention to the advertisement and suggested that he should apply for the position.
26. Given that Mr Woolsey's involvement appears to have been at that time, and given that Mr Woolsey completed the form, I am satisfied that it is more probable than not that Mr Woolsey took the information for the purposes of completing the Application for Immediate Minor Assistance from the advertisement, and in doing so succumbed to the common assumption that “Full-time” is synonymous with “Permanent”.
27. I am reassured in that view by the fact that it is agreed Mr Reimers spoke to Michelle Fenton and not to Mr Woolsey when he rang the CES later that Friday. I find therefore that the word “Perm” was more probably written by Mr Woolsey at the time he was dealing with the matter and did not relate to whatever Mr Reimers later told Ms Fenton.
28. I also note that Ms Fenton crossed out the word “perm” and made two further annotations on the form, ie “casual only” and then “confirmed on 25/06/96 that job is only casual”. Ms Fenton's supposition was that she made those notes a day after, on the following Tuesday 25 June 1996, as a result of a communication from Daily Meats that the advertised position was only casual. Mr Kipling confirmed in his evidence that he noticed that the advertisement was later changed to reflect that.
29. It is not apparent why it would be necessary to make both annotations in the same part of the form at the same time; Ms Fenton was not specifically questioned about that. If, as I have found, Mr Reimers informed Ms Fenton in the course of their telephone conversation on Friday 21 June 1996 that the position was not permanent, then Ms Fenton might on that occasion have just noted “casual only”. After the further conversation the following Tuesday she could then have written that it was “confirmed casual” and dated the second confirmation.
30. In any event, on the morning of Monday 24 June 1996, Mr Stewart returned early from his leave to resume work at the abattoir. He spoke to Mr Kipling and required Mr Kipling to sign a workplace agreement before they started work. Mr Stewart told Mr Kipling that he would be given a one day trial period. Mr Kipling says he protested but that Mr Stewart responded that he could “take it or leave it.” Mr Kipling then began work.
Period of Probation?
31. I am satisfied that Mr Kipling was not an employee serving a period of probation or qualifying period of employment in terms of the regulations, primarily because if one takes the view, and I think it is the better view, that the employment contract was entered into on the Friday, between Mr Reimers and Mr Kipling, then Mr Reimers is not contending that he told Mr Kipling a definite duration for the trial period.
32. Mr Reimers said in evidence that he expected that the trial period would be until Mr Stewart got back, which he expected would be the following Wednesday, but that he didn’t think he told Mr Kipling that.
33. On the evidence it is more probable than not that the period of the trial period was not determined in advance, and therefore, the provision dealing with probationary periods does not apply to this case.
Casual Employee for a Short Period?
34. The first matter to be addressed is the fact that every employee who is a slaughterperson at Daily Meats regards themselves as a casual. If we accept that at face value, that does not conclude the matter, because Regulation 30B defines the term “casual employee for a short period” to mean “an employee who has or, but for decision by the employer to terminate the employee's employment, would have had a reasonable expectation of continuing employment by the employer”.
35. If, for example, Mr Reimers were sacked tomorrow, he would have a fair argument that he had a reasonable expectation of continuing employment by Daily Meats, given that he has worked there for 18 months as a casual slaughterperson. If so, he would not be excluded from the protection of the unlawful termination provisions of the Act.
36. Mr Kipling, on the other hand, is at the other end of the spectrum, having worked there for a mere two hours. The question is, was Mr Kipling able to share the reasonable expectation of continuing employment that some of the other slaughter persons, though they were apparently casuals, may have had. In my view, that depends upon to the extent to which it was made clear to him that he was being employed for a trial period and the time at which he was told that.
37. Mr Kipling denies that he was engaged as a casual and contends that he was employed by Mr Reimers during his interview on Friday, 21 June 1996 on a permanent basis to do slaughtering tasks.
38. However, if Mr Reimers referred to the fact that the employment would be for a trial period, as I have found, then it follows that Mr Kipling could not have had a reasonable expectation of continuing employment by Daily Meats. He would have been aware that his continued employment was conditional on the trial period working out and on his “making the grade”. For that reason, I am satisfied that on the findings of fact that I have made Mr Kipling comes within the ambit of Regulation 30B (1) (d) as a “casual employee engaged for a short period within the meaning of Subregulation (3)”.
39. Therefore, I conclude that the relevant provisions of the Act relating to unlawful termination do not apply to Mr Kipling. It follows that the application should be dismissed.
40. If I were wrong about my findings as to Mr Reimers’ conversations with Mr Kipling and Ms Fenton then it would seem to me that, in any event, it is highly arguable that the position was changed or made clear by Mr Stewart on the Monday morning when he told Mr Kipling that it would be a one day trial period and added that Mr Kipling could take it or leave it. So whatever the position after Mr Reimers had finished with Mr Kipling on the Friday, I am satisfied that by the time Mr Kipling started work on the Monday he had no reasonable expectation of continuing employment and understood that it would be subject to a successful trial period.
Valid Reason Connected With the Employee’s Capacity
41. It has not been necessary to decide on the merits of the claim that the termination was not for a valid reason for the purposes of Section 170DE(1). Had it been necessary to so decide, then I would have taken some time to review all the evidence, and taken more time to consider my findings on these additional issues. However, without purporting to decide the issues, I will make some additional observations on the merits which lead me to the conclusion that Mr Kipling’s prospects of success in the substantive claim would not have been great in any event.
42. For the purpose of considering the threshold question of the possible application of Regulation 30B to his employment, I have been happy to proceed on the assumption that Mr Kipling's evidence should be accepted as to whether or not he claimed to be a qualified slaughterperson.
43. If I had had to examine the issue of whether Mr Stewart had a valid reason connected with Mr Kipling’s capacity to terminate Mr Kipling’s employment, then I doubt that assumption would have withstood scrutiny, particularly given that Mr Kipling later gave a statement to the W.A. Department of Productivity and Labour Relations in which he appears to have said that he told Mr Reimers that he was “qualified”. Mr Kipling has sought to explain this as a claim to be merely a qualified learner, but I do not find that explanation persuasive.
44. If I were to have found that Mr Kipling had said that he was qualified then it becomes a reasonably simple case in terms of the merits. Mr Kipling admits he was not a qualified slaughterperson. I accept that, as his witness Mr Nash conceded, it is possible to quite quickly make an assessment of the competence of a slaughterperson. I would therefore not regard the fact that only two hours were spent as invalidating any assessment that was made.
45. As to the conflict in evidence as to whether Mr Kipling worked on the A frames, I would decide in accordance with the weight of the evidence, where three people say that he had and only Mr Kipling says that he did not.
Costs
46. Mr Darcy has indicated that some application might be made on costs if the respondent were successful. If such an application is to be made, then a notice of motion should be filed setting out the basis for the claim for costs. It may be appropriate to put at least some of the evidence in an affidavit form, given that much of it will relate to receipts and other evidence of quantum if the quantum of costs cannot be agreed.
47. At the time of hearing I indicated that, because the question of costs remains outstanding, I would not go on to dismiss the application until within 7 days of making available the written reasons. Accordingly, the minute of order is limited to a declaration. If I have not received any further notices of motion by 4.00pm Friday 17 January 1997, then an order will issue dismissing the application and the matter will be concluded.
I certify that this and the preceding (12) pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.
Associate:
Dated: 9 January 1997
APPEARANCES
Counsel appearing for the applicant: Ms D. Peters
Solicitors for the applicant: Peter J. Griffin & Co
Representative for the respondent: Mr M. Darcy
National Meat Industry Association
Dates of Hearing: 3 - 4 December, 1996
Date of Judgment: 4 December, 1996
