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[Extract from Queensland Government Industrial Gazette,

dated 8 April 2005, Vol. 178, No. 15, pages 348-355]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 – s. 74 – application for reinstatement

Karen Rebecca Koppe AND Compass Group (Australia) Pty Ltd t/a ESS Support Services (B460 of 2004)

COMMISSIONER ASBURY23 March 2005

Unfair dismissal application – Employer providing catering and ancillary services to client company – Decision by client company to withdraw access of employee to accommodation at site – Dismissal of employee because of withdrawal of employee’s accommodation rights by client – No enquiry made by employer in relation to client’s reasons for withdrawal of employee’s accommodation – Unfair dismissal case law – Difficulties associated with contractual arrangements where employees of one employer work on a site operated by another entity – Relationship between contractor and client – Commission not precluded in considering actions of non-party to employment relationship where those actions directly impact on employee – Employers required to treat employees fairly – Employers cannot avoid obligations to treat employees fairly by arguing that they were complying with directions of client – Finding that employer was unreasonable in failing to make enquiries or discuss with client reasons for withdrawing employee’s accommodation rights –Finding that dismissal of employee was unfair – Rights of client under Mineral Resources Act 1989 – Finding that reinstatement was impracticable – Industrial Relations Act s. 79(2) - Assessment of compensation – Method of calculating compensation– Commission not restricted in temporal sense in calculation of compensation to period of six months from date of termination – Commission may determine an amount of compensation in excess of amount employer liable to pay within six months of termination make deductions and then cap amount as required by s. 79(2) – Compensation Awarded.

DECISION

1. INTRODUCTION

This is an application under s. 74 of the Industrial Relations Act 1999 (the Act) by Karen Rebecca Koppe alleging her unfair dismissal by the Compass Group Australia Pty Ltd t/a ESS Support Services (ESS). ESS engages in the business of providing catering and ancillary services under contract at various sites operated by its clients. In the present case ESS provided such services at a mine site operated by Birla Mt Gordon Pty Ltd (BMG). The duties performed by Ms Koppe were principally cleaning. In the performance of her work for ESS Ms Koppewas required to reside in accommodation provided by BMG.

2. PRELIMINARY AND JURISDICTIONAL ISSUES AND PROCEEDINGS

Upon Ms Koppe filing her unfair dismissal application the respondent raised a number of issues which can broadly be categorised as preliminary or jurisdictional in nature. The hearing of the following issues was allocated to Commissioner Blades who determined them in a decision of 24 August 2004, published at 177 QGIG 41:

  • whether Ms Koppe should be granted an extension of time in which to file the application alleging unfair dismissal;
  • whether Ms Koppe was dismissed from her employment; and
  • whether ESS or BMG was the employer and the appropriate respondent.

Commissioner Blades granted the extension of time and found that Ms Koppe had been dismissed from her employment. In relation to the identity of the employer, Commissioner Blades rejected an argument put on behalf of Ms Koppe that BMG was a joint employer of Ms Koppe and held that ESS was her employer and the appropriate respondent in the unfair dismissal application. Commissioner Blades reached this conclusion on the basis that the control exercised by BMG was merely incidental and routine and was not with respect to essential terms of employment, without deciding whether joint employment was a part of the industrial law of Queensland or not.

The hearing of the substantive aspect of the application – i.e. whether the applicant was unfairly dismissed – was allocated to the Commission as presently constituted and that hearing was held in Townsville on 14 December 2004.

Mr Gallagher for ESS in his final submissions to the Commission as presently constituted, indicated reliance on a finding which was said to have been made by Commissioner Blades, with respect to the effect of s. 403 of the Mineral Resources Act1989 and contended that the Commission should be bound by that finding in the present case. The Mineral Resources Act 1989 was briefly mentioned in the witness statement of Ms Bigg filed by the respondent but there was no reference to a specific section of that Act: refer Exhibit R1 paragraph 4. There were no submissions in relation to the operation of s. 403 of the Mineral Resources Act 1989 made to the Commission as presently constituted. It was also apparent during the hearing of the present case, that relevant correspondence which was put into evidence before Commissioner Blades was not put into evidence before the Commission as presently constituted.

It is frequently the case that parties to reinstatement applications (and other applications) seek to have preliminary or jurisdictional matters dealt with in proceedings which are separate from those dealing with the substantive aspects of the application. Obviously the benefit of this approach is that if the preliminary or jurisdictional argument succeeds, the proceedings on the substantive issues in the application will not be required. However, when proceedings are split in this way, the member of the Commission who hears the preliminary or jurisdictional matters may not be allocated the substantive matter.

A member of the Commission hearing substantive aspects of a matter is not bound by any findings in the decision of another member of the Commission in preliminary or jurisdictional proceedings on the same matter, where those findings relate to matters which are later part of a substantive hearing. While in appropriate cases there may be good reasons why findings made by a member of the Commission in a preliminary or jurisdictional matter would be adopted by another member of the Commission deciding the substantive aspects of the same application, there may equally be good reasons why this should not be the case, including that evidence in preliminary or jurisdictional proceedings may be incomplete because of the narrower issues being determined.

In the present case, separate directions orders were issued in relation to the preliminary matters dealt with by Commissioner Blades and the substantive matters before the Commission as presently constituted. Both sets of directions orders required the parties to respectively supply to each other and file in the Industrial Registry, statements of evidence from all witnesses to be called and went on to direct the parties to the effect that leave of the Commission would be required should they seek to adduce further evidence beyond that contained in the witness statements.

In my view if a party seeks to rely on material put before another member of the Commission in preliminary proceedings, that party should at very least advise the respondent and the Industrial Registrar of this intention. It is a simple exercise to put material from preliminary proceedings into evidence in later proceedings by having a witness indicate reliance on a statement made in the earlier proceedings.

In the present case however, I am prepared to give consideration to the possible effect of the Mineral Resources Act 1989 on the basis that it is a statute. Further, there was some reference to it in the witness statement for the respondent. I have also given consideration to a number of relevant pieces of correspondence which were put into evidence before Commissioner Blades on the basis that their contents were referred to in (but not attached to) witness statements in the present case.

3. RELEVANT FACTS

Evidence was given in support of the unfair dismissal application by Ms Koppe. Evidence for the respondent was given by Ms Vicki Bigg, the HR Advisor for ESS. I note that Ms Bigg was also a witness for the respondent in earlier proceedings before Commissioner Blades. The events surrounding Ms Koppe’s employment and dismissal can be briefly summarised. Ms Koppe was employed by ESS under a written contract of employment signed on 20 January 2003. The written contract of employment (Appendix A to Exhibit R1 in the current proceedings) relevantly provides as follows:

“…

This offer of employment is made on the basis that you may be required to work and live at different sites depending on the Company and the clients needs

…

3. Term of Employment

You will be employed to work at the MountGordon site in relation to the Company’s contract to provide catering and ancillary services to Western Metals Copper Limited.

Eurest are contracted to each site for varying lengths of time and employment is subject to the continuation of the contract. Continuous employment, wages, working hours and/or conditions cannot be guaranteed during quiet periods in the business eg. semester breaks and/or if camp numbers fluctuate less (or more). Changes in contracts and client requirements may also result in reduction or increase of hours and workload.

As a result of changes in operational demands you may be given the opportunity or required to transfer to another site, or we may offer you employment in another classification or position at your current site. If this occurs your wage/salary terms and conditions may be varied. These changes will be discussed with you and confirmed in writing. Please be aware that if the re-classification or position offered is not acceptable to you then we may be unable to employ you further.

Upon expiration or termination of the Company’s current contract with Western Metals Copper Limited [later bought by Birla Mount Gordon Pty Ltd], provided your performance and conduct has been satisfactory, all reasonable efforts will be made to redeploy you to another site at which the Company provides the same or similar services subject to the availability of positions for which you are qualified and able to fill

…

11. Termination of Employment

Except during the period referred to in clause 10, Probation Period, your employment may be terminated as per applicable Award/Agreement…”.

The written contract of employment provided that a probationary period did not apply to casual employees. Appended to the written employment contract was a document headed “REMUNERATION SCHEDULE – Award/Agreement Employee CONDITIONS OF EMPLOYMENT” where a box indicating that Ms Koppe was employed as a casual employee was ticked, although the same form indicates that Ms Koppe was a temporary employee and entitled to leave loading of 17%. That document, beside the heading “Award Title”, referred to “CAFÉ RESTAURANT AND CATERING”. Appendix B to the written contract of employment was a document headed “CONTRACT OF EMPLOYMENT VARIATION ADVICE” indicating that on 3 March 2003 Ms Koppe’s employment was made “permanent” and “FT”. I infer that as the other options on the form are “PT/Temp/Casual” the variation resulted in Ms Koppe’s employment being on a weekly full time basis. I also infer that the award covering the work performed by Ms Koppe for ESS was the Café, Restaurant and Catering Award – State (Excluding South-East Queensland) 2003.

On 5 February 2004 ESS were advised by BMG that Ms Koppe’s accommodation at the site where she worked had been withdrawn. Ms Koppe said in her evidence that she was given a letter by a Mr Cooper of ESS who was her manager, under the signature of Mr Anthony Wilson of BMG, advising that Ms Koppe’s accommodation had been withdrawn. That letter was not in evidence before the Commission as presently constituted, however in the proceedings before Commissioner Blades, a letter in the following terms signed by Anthony Wilson, Contracts Manager on BMG letterhead and dated 5 February 2004, went into evidence before Commissioner Blades as Exhibit 4:

“Re: Removal of Accommodation Rights

Dear David,

This letter is to inform you that accommodation for Karen Koppe has been rescinded. This is effective as of Monday the 9th of February 2004.

Please ensure the person takes all their belongings with them or organise for these to be forwarded to them…”.

The terms of that letter were also referred to in the decision of Commissioner Blades. I infer that it was this letter that was referred to by Ms Koppe in her evidence and in the material facts set out in her unfair dismissal application. Ms Koppe said that she had made various attempts to discuss the reasons for her accommodation being withdrawn with Mr Wilson and with various persons employed in the HR department of BMG including Ms Karen Mortimer. Ms Koppe said that she was not provided with any explanation of the reasons for her accommodation being withdrawn by either management of ESS or BMG.

During a discussion with Ms Mortimer (of BMG Human Resources Department) Ms Koppe said that she was told that the reasons for the withdrawal of her accommodation stemmed from months ago and related to behavioural problems. Ms Koppe also said that she was told by Ms Bigg that she still had a job with ESS and would be placed in a relief pool while a permanent position was found for her. Ms Koppe left the BMG site on 13 February 2004, and worked for a period of four weeks at Weipa, as requested by ESS. The period Ms Koppe worked at Weipa was said by ESS to include a two week notice period and a further two weeks casual work as a kitchen hand.

Ms Biggwrote to Ms Koppe on 12 February 2004 advising her that her employment at Mt Gordon would cease on 15 February 2004. Ms Koppe said that she did not receive this letter until her return from Weipa on 12 March 2004. The letter was not put into evidence by either of the parties in the current proceedings. However, in the decision of Commissioner Blades the terms of a letter from Ms Bigg to Ms Koppe dated 12 February 2004,are set out as follows:

“This letter is to confirm your conversation with David Cooper and to advise you that your employment with Compass Group at MountGordon will cease on 15th February 2004 due to your accommodation being rescinded by Birla Mt. Gordon Pty Ltd who have ultimate control of our contract.

You are entitled to two weeks notice, which will be worked at Weipa for ESS, with a following two weeks relief work at Weipa under the conditions of employment applicable at Weipa.

Karen, after your period at Weipa you will be placed on the relief pool and we will endeavour to find you an alternative full time position within the company.”.

I infer that this letter was the one referred to by Ms Koppe in her witness statement (Exhibit A2) and by Ms Bigg in her witness statement (Exhibit R1).

Ms Bigg’s evidence was that under the terms of the Mineral Resources Act 1989, BMG had the sole right to determine who and when visitors and others could enter the mine site. Under cross-examination, Ms Bigg said that at the point Ms Koppe’s accommodation had been withdrawn by BMG, she had not known the reasons for this action. Ms Big also said that she had not asked any agent or representative of BMG why Ms Koppe’s accommodation had been withdrawn. Ms Big said that if the reason had been serious misconduct, she would have expected to be advised of this by BMG. Further, Ms Big said that there were no serious issues with Ms Koppe’s work performance. Ms Bigg was not cross-examined in relation to her evidence about the Mineral Resources Act 1989.

There was no evidence as to the location of the accommodation provided by BMG or whether the accommodation was on the mine lease. Further, there was no evidence that BMG had removed Ms Koppe’s access to the mine lease or to its operational facilities on that lease. All that can be ascertained from the evidence is that BMG removed Ms Koppe’s rights to access accommodation provided by it.

Ms Bigg agreed that between 12 March 2004 and 9 June 2004 no work was offered by ESS to Ms Koppe and she remained in the “relief pool” of labour operated by ESS. Ms Bigg’s evidence about the status of the applicant’s employment was somewhat unclear. Ms Bigg agreed that Ms Koppe’s employment status had been changed from permanent full-time to casual when she had been placed in the relief pool (Transcript p. 22 line 28) and that Ms Koppe was subject to an employment contract which allowed her employment status to move between full-time and casual (Transcript p. 28 line 51). Ms Bigg said later in her evidence that Ms Koppe had been employed on a casual basis, and that her appointment to a permanent full-time position at BMG had been a contract variation (Transcript p. 27 line 1).

Ms Bigg said that at some point in mid to late March, Ms Koppe requested that her accrued leave be paid to her. Ms Bigg agreed that Ms Koppe had indicated that this request had been made because Ms Koppe needed the money. On 9 June 2004 Ms Koppe had been offered a position as a temporary cleaner at the Eloise Mine for a period of two weeks’ commencing on 24 June 2004. On 28 June 2004 Ms Koppe had been offered further work at the North Queensland Gas Pipeline Camp 3 at Woodside. Both of these offers had been rejected by Ms Koppe. In response to a question from the Commission, Ms Bigg said that ESS still had a contract to provide catering and ancillary services to BMG, and that this contract was not due for renewal until December 2005.

Under cross-examination, Ms Koppe agreed that she had received two letters from the Australian Mines and Metals Association Inc. dated 9 June and 28 June 2004 respectively, offering her two weeks work. On advice from her representative Ms Koppe had not accepted either offer as they did not constitute reinstatement. Ms Koppe said that she had not been advised by her representative of any need to mitigate her loss of wages by accepting the offers. Ms Koppe also said that she had pursued alternative work in Townsville as a cleaner and had obtained some casual work as a cleaner and a breakfast cook, with no guarantee as to hours. For this work Ms Koppe had been paid $16.00 per hour and $19.00 per hour if the work was performed on Sunday. Hours worked by Ms Koppe in this capacity ranged from 16–25 per week. Ms Koppe provided group certificates to the Commission which indicated that on or about 20April 2004 she commenced work with Frontline Defence Group and earned an amount of $3,286.00 in the period until June 2004. From June 2004 up until the date of the hearing of her reinstatement application, Ms Koppe earned an amount of $1,279.00from casual employment with the Ridgemount Hotel.