10
[Extract from Queensland Government Industrial Gazette,
dated 16 December, 2005, Vol. 20, No. 18, pages 1144-1150]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 74 – application for reinstatement
Gavin Taylor AND Brenigan’s Limited atf The LD Family Trust t/a Pierre’s Golden Chicken (TD/2005/129)
COMMISSIONER THOMPSON 6 December 2005
Application for reinstatement – Witness evidence – Evidence of applicant preferred – Reinstatement impracticable – Compensation awarded – Penalty units – Costs.
DECISION
Background
An application for reinstatement was filed by Mr Gavin Taylor (applicant) on 13 September 2005 in which it was alleged that the termination had been affected whilst the applicant had been on WorkCover.
The respondent at that time was identified as:
Pierre’s Golden Chicken
Shop 21-22, 91 Middle Street
Cleveland.
An amended application was filed on behalf of the applicant on 2 November 2005 in which the respondent was named as:
Brenigan’s Pty Limited as trustee for the LG Downie Family Trust t/a Pierre’s Golden Chicken Cleveland.
On 27 October 2005, the Vice President issued Further Directions Orders which required both the applicant and the respondent to file in the Industrial Registry and supply to each other statement(s) of evidence, from all witnesses to be called, and which were to be relied upon in the hearing by 7 November and 18 November 2005 respectively.
The applicant complied with the directions on 2 November 2005 (inside the scheduled time frames) however, the respondent failed to meet their obligations.
On 24 November 2005, correspondence was received from the respondent seeking an adjournment.
The Commission, at a hearing on 28 November 2005, heard submissions from the parties on the adjournment motion, and subsequently, in giving a decision from the Bench (and released in writing on 1 December 2005), denied the application.
The respondent, in that decision, was subjected to new Directions Orders requiring statement(s) of evidence to be relied upon in the hearing to be filed by 4.00 p.m. on 29 November 2005.
Applicant
The applicant relied on evidence provided in the proceedings by himself, and chose not to call any other witnesses.
Taylor
Mr Taylor’s evidence commenced with details of his employment with Pierre’s Golden Chicken commencing in October 2003, resigning on 17 December 2004, and being re-employed as a Chef on 7 March 2005.
On or around 1 August 2005, as a result of experiencing pain in his right wrist, he was unable to attend for work.
At around 5.30 a.m. on that day, he contacted Ms Leonie Downie (Manager) to advise of his non-attendance at work and that he would be attending the doctors.
Not being satisfied with the medical opinion first given which identified his condition as “overuse” and the need to have his wrist in plaster for a month he, the next day, arranged to get a second opinion.
Ms Downie was advised of the situation on 1 August 2005.
On Tuesday 2 August 2005, his condition was diagnosed as tendonitis with treatment prescribed including time off work for the period 2 to 31 August 2005.
A WorkCover medical certificate was provided by the Medical Practitioner at the conclusion of the visit.
Ms Downie was immediately advised (by phone) and on 5 August 2005 the applicant attended the respondent’s premises where he presented his medical certificate and Ms Downie completed the Employers Report for WorkCover.
A period of around 30 minutes was spent discussing his replacement and recipes to be used in his absence.
In the period between 5 to 24 August 2005 he kept in regular contact with Ms Downie (by phone) mostly at his instigation.
On 24 August 2005, he visited his Medical Practitioner, where he was advised that he had not sufficiently recovered to return to work and was issued with a further medical certificate valid until 30 September 2005.
On the same date (24 August 2005), he visited the respondent’s premises (at Ms Downie’s behest) to sign off on the Apprentice Chef’s training book.
Ms Downie was not present and he informed the Apprentice Chef (Mr Alex Zakharov) that he had the medical certificate excluding him from work until 30 September 2005 and requested that Ms Downie contact him.
Having not received a call from Ms Downie, he phoned her on 29 August 2005 advising her of his current situation and, at paragraph 29 of his affidavit, he noted that she said words to the effect “yep no worries”.
At approximately 10.45 a.m. on 31 August 2005, he contacted Ms Downie (by phone) to advise that he had received correspondence from WorkCover advising that his claim had been accepted.
Ms Downie is alleged to have said words to the effect “I’m considering dismissing you because you can’t give me a date when you’ll return to work”. She further went on to say “Alex has been doing your job since you’ve been away and has been doing okay. He’s also cheaper than you”.
Following his interaction with Ms Downie, he contacted Wageline where he was appraised of his rights in the situation where he now found himself.
He later, that day, contacted Ms Downie where he was advised that she had decided to terminate his employment allegedly saying “It’s a business decision as Alex is a lot cheaper”.
He requested that he be formally advised in writing of the decision.
A letter written by Ms Downie (dated 31 August 2005) was tendered in the proceedings as part of the applicant’s affidavit of evidence.
The full text of that letter is as follows:
“31st August 2005
Dear Gavin Taylor,
During the change in course of events over the last few weeks I have had to make the decision to cease your employment with us.
Several factors have contributed to my decision, which were expressed with you over the phone earlier today.
Basically, since you have been away, Alex has been filling your position as you are aware. At the same time he has finished his apprenticeship which means he is looking for new employment as a chef. He gave me notice to leave due Monday next week, hence the urgency in my decision. Having proved his chef skills, Alex had become a more valuable staff member for his particular shop. It’s important I keep someone with that extra experience with ‘Pierre’s’ and who can train kitchen hands as well as chef. I cannot afford to, nor is there enough work to hire two chefs. This decision has been made n the best interest of the business.
As per our agreement at your commencement, I am giving you four weeks notice beginning from the date on this letter. Therefore you’re final day of employment will be the 27th September, 2005.
Yours Sincerely,
[Signature]
Leonie Downie
Manager.”.
The final stages of his evidence dealt with discussions between Ms Downie and himself around the issue of his termination payments.
The applicant formed the view that he had been terminated on the basis of his temporary absence due to a work related illness, therefore making the termination in contravention of s. 73(2) of the Industrial Relations Act 1999 (the Act) being for an invalid reason.
A copy of a mobile phone account in the name of the applicant was tendered in the proceedings which identified a call being made from a mobile phone number (identified in the account as being assigned to the applicant) to the business premises of the respondent at 12.29 p.m. on 19 August 2005.
The importance of this exhibit, according to the applicant, was to contest a claim made by Ms Downie in her affidavit provided in the proceedings.
Cross-examination
A number of issues were addressed during cross-examination which included:
· Providing recipes to the respondent (page 42, line 40 of transcript):
“Downie: No. Okay, so I believe you gave recipes to me this year after you had your injury; is that correct?
Taylor: Yes, I believe that’s correct. You wrote those down.”.
· Contact with the respondent whilst injured.
· Signing off on the Apprentice’s Training Book.
· Light duties (page 51, line 28 of transcript):
“Downie: Did you at any time in August offer – ask me if you could do any light duties?
Taylor: I do believe that I have possibly could have mentioned it to you during some period in August due to again, the fact that I was trying to get back to work as quickly as possible.”.
· WorkCover claim.
· Applicant having arthritis.
· Duties performed by Apprentice, including Chef duties.
Respondent
In defending the application, the respondent called on evidence from Ms Downie and Mr Zakharov.
Downie
Ms Downie, the Manager of the respondent business (and the proprietor), gave evidence that the business was purchased on 8 February 2005 as a “going concern”.
On 7 March 2005, the applicant was employed by the business, having previously been in the employ of the owners prior to the purchase of the business by the respondent.
Ms Downie entered into a written arrangement with the applicant in respect of his terms and conditions of employment which included a provision where either party were required to provide a minimum of one month’s notice if the employment was to cease.
Her evidence confirmed that of the applicant in respect of contact between them on 1 August 2005 and advice given to the applicant concerning an injury and visit to the doctor.
Whilst the applicant was off work, communications continued between the parties around some work related issues which included the applicant making available a number of recipes to be used until his return to work.
She disputed evidence given by the applicant that he visited the “shop” on 24 August 2005 at her request to sign the apprentices training book instead suggesting that the apprentice had made said arrangement.
She recalled a conversation with the applicant on 29 August 2005 where he advised that he had two different opinions on his injury including an option to perform light duties.
On that basis, she had offered him weekend work which was lighter in nature.
The applicant had not, in the conversation of 29 August 2005, made mention of having an extended medical certificate.
Whilst the applicant was absent on WorkCover leave, Mr Zakharov was in the stages of completing his apprenticeship and offered 4 weeks’ notice to terminate his employment when the applicant returned on 30 August 2005.
The first she knew of the medical certificate for the month of September 2005 was when the applicant handed it to her as he collected his dismissal on 31 August 2005.
On her decision to terminate the applicant’s employment, the witness stated the recently finished apprentice (Zakharov) had qualities more suitable to the business than the applicant, particularly as they related to the training of kitchen hands.
The decision to terminate was based on business needs, and the issue of the injury or WorkCover was not a consideration.
Cross-examination
Under cross-examination, Ms Downie was directed to a number of matters, including:
· Ownership of the business.
· Detail surrounding the applicant going on WorkCover.
· Disputing with WorkCover the applicant’s claim (page 70, line 50 of transcript):
“Heffernan: Do you have an idea of what time you notified WorkCover, or more technically Q-Comp, of the dispute?
Downie: I think it was when I was the QRTC, Jay Price. I think it was after the conciliation conference.
Commissioner: So, it was after the dismissal?
Downie: Yes.”.
· Communication with the applicant whilst he was off work.
· Notice given by the Apprentice to terminate his employment (page 82, line 40 of transcript):
“Heffernan: So you knew for some time, a lot more than, say, August that Alex’s contract was going to expire as soon as – and that he was going to go?
Downie: I knew that his apprenticeship was going to finish and he had talked about leaving.
Heffernan: How long had he talked about leaving for, about what sort of timeframe?
Downie: He just talked. Been a couple of months, I think.”.
· Termination of the applicant.
Zakharov
Mr Zakharov’s evidence was that he gave the respondent 4 weeks’ notice in early august 2005, but had indicated he would stay until the applicant returned to work.
He gave additional evidence in relation to contacting the applicant to sign his Record Book (TAFE) and the failure of the applicant to show up on the Monday.
Further arrangements were made between the parties and the Record Book was eventually signed.
Cross-examination
Matters touched on in cross-examination included:
· Decision to originally offer his termination notice.
· Phone conversation with the applicant.
· Change of mind on resignation and acceptance of position as Chef (page 113, line 30 of transcript):
“Heffernan: So you were offered a job – –?
Zakharov: Before Taylor was sacked.
Heffernan: – – before the 30th, okay?
Zakharov: That’s correct.
Heffernan: So you put up your hand with an expectation to replace Mr Taylor, didn’t you?
Zakharov: Not to replace but, yeah, to replace pretty much – –
Heffernan: Let’s be honest?
Zakharov: – – not Mr Taylor but any other kind of chefs.
Heffernan: Okay, so what did you expect was going to happen to Mr Taylor?
Zakharov: I didn’t really think about it, it wasn’t my problem.
Heffernan: He was a sick worker, cast him off, I’ll take his job?
Zakharov: It wasn’t my problem.
Heffernan: And your testimony was that you offered to stay on until he got better?