Dec 681/99 M Print R6090
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision Print R0909 and order Print R0952
issued by Commissioner Holmes on 21 January 1999
SERCO Gas Services Pty Ltd
(C No. 30526 of 1999)
s.170CE application for relief in respect of termination of employment
H.A. Alkemade and others
and
SERCO Gas Services (Vic) Pty Ltd
(U Nos. 34344, 34158, 34159 and 34160 of 1997)
VICE PRESIDENT ROSS |
|
SENIOR DEPUTY PRESIDENT POLITES |
|
COMMISSIONER HINGLEY |
MELBOURNE, 21 JUNE 1999 |
Appeal re termination of employment.
DECISION
[1] This is an appeal against a decision and order of Commissioner Holmes for compensation in respect of four terminations by SERCO Gas Services Pty Ltd (appellant). Three of the respondents were employed by appellant at its Port Melbourne depot while the fourth was employed as a warehouse provider at Bendigo. All of the employees were terminated on redundancy grounds and it was not in issue before Commissioner Holmes that there was a valid reason for their termination, namely redundancy. In each case, however, Commissioner Holmes considered that the termination of the employees was "unfair and unjust" and awarded compensation in varying amounts.
[2] In accordance with directions given by the Commission each party filed written submissions in relation to the appeal and in addition both parties were given an opportunity to speak to their submissions and to deal with questions from the Full Bench on 24 May 1999. An opportunity to put further written submissions was also afforded to the parties following the hearing. Both parties took the opportunity to file such submissions.
[3] Commissioner Holmes' conclusions in relation to the matter are set out under the heading "Consideration of the issues" in his decision. In view of the length of the conclusions we do not propose to set them out here. Rather, we propose to deal seriatim with each argument advanced in the appellant's written submissions as to why the appeal should be allowed. In doing so, we note that the written submissions do not address some of the grounds separately identified in the notice of appeal. Before doing so, however, we note as does the appellant that an appeal under s.45 of the Workplace Relations Act 1996 (the Act) is not an appeal of right. The following passages from Fisher v Telstra Corporation Limited make plain that position.
"80. Section 170JF deals with appeals from orders arising from the determination of whether a termination was harsh, unjust or unreasonable. It states:
`(1) An appeal to a Full Bench under section 45 may be instituted by any person who is entitled under section 170JD to apply for the variation or revocation of an order under this Part.
(2) For the avoidance of doubt, an appeal to a Full Bench under section 45 in relation to an order made by the Commission under Subdivision B of Division 3 may be made only on the grounds that the Commission was in error in deciding to make the order.'
81. Section 45(2) provides that a Full Bench shall grant leave to appeal if `in its opinion, the matter is of such importance that, in the public interest, leave should be granted'. Having regard to the terms of s.170JF(2) we think that leave to appeal should generally not be granted unless the appellant satisfies the Commission that there is an arguable case that the member at first instance had either made a legal error or had acted upon a wrong principle, given weight to irrelevant matters, failed to give sufficient weight to relevant matters or made a mistake as to the facts or that the decision was plainly unreasonable or unjust. In the absence of an arguable case of either legal error or that the discretion was miscarried the Commission would not grant leave merely to substitute its decision for the decision under appeal.
82. Leave to appeal is not a mere formality and a substantive submission is required if leave is to be granted.
83. The requirement for an arguable case of either legal error or that the discretion has been miscarried means that the appellant must demonstrate that their case has a reasonable prospect of success. This requirement is rigorously applied in order to ensure that the standing and purpose of Commission proceedings at first instance are not diminished by automatic or unwarranted access to an Appeal Bench." [Print R2558 pp. 17-18]
[4] We turn then to the question of whether leave to appeal should be granted. The first issue raised on appeal was that Commissioner Holmes had misdirected himself or otherwise fallen into error in applying the principle of "a fair go all round". Two arguments were put in this regard. Firstly, the appellant submitted that s.170CA(2) of the Act requires the question be asked whether there has been a fair go all round as between the employer and the employees whose employment has been terminated. It was submitted in relation to the notion of a fair go all round that to the extent it travels beyond the issue of remedy it is concerned with the notion that an employee ought not to be the subject to the employer's oppression or abuse of power in relation to that employee. Accordingly, that comparative treatment of the employer's other employees is only relevant to the extent it demonstrates conduct on the part of the employer that may be regarded as oppressive or discriminatory on some unlawful grounds. Accordingly, it was submitted that Commissioner Holmes fell into error in paying regard to the treatment of other employees in applying the tests under s.170CG.
[5] We are unable to accept that proposition. In Mollinger v National Jet Systems Pty Ltd (Mollinger's Case) a Full Bench of the Commission in considering the operation of s.170CA(2) of the Act made the following observations:
"There is little doubt that s.170CA(2) enjoins the Commission to apply basic notions of fairness in carrying out its functions under Division 3. This injunction is not limited to the manner in which the hearing is conducted or the consideration of the remedy to be awarded but extends to the Commission's consideration of all of the relevant circumstances." [Print R3130 at p. 5]
[6] Moreover, in Mollinger's Case the Full Bench concluded that it was appropriate for a member of the Commission at first instance to have regard to different treatment afforded to another employee in similar factual circumstances. We respectfully agree with these conclusions. We do not think there is any justification in the context of s.170CA(2) of the Act for implying that a consideration of the comparative treatment of other employees is only relevant to the extent that it demonstrates conduct on the part of the employer which may be regarded as oppressive or discriminatory on some unlawful grounds.
[7] The appellant's second point in relation to s.170CA(2) of the Act was that to the extent that section is tempered by reference to Loty and Holloway v The Australian Workers' Union [(1971) AR (NSW) 95] (Loty's Case) Commissioner Holmes misdirected himself in applying the principle of a fair go all round, because the decision in Loty's Case is consistent with the notion of employers treating different classes of employees differently provided that the individual is given a fair go as between that employee and the employer and the employer's conduct is a rational and logical consequence of that circumstance. We respectfully agree with the appellant that the decision in Loty's Case does not preclude the differential treatment of employees in relation to the application of the principle of a fair go all round. But that does not take the applicant as far as it is necessary to demonstrate that Commissioner Holmes fell into error in this regard.
[8] In the following passages from his decision Commissioner Holmes clearly considered arguments as to why a different treatment of groups of employees may be considered.
"In Ms Richards submissions it was unfair that the four applicants did not receive comparable payments. It is clear on the facts before me that Mr. Coghill similarly believed the provision of differential severance payments to be unfair in that on a number of occasions he raised the issue with GASCOR with a view to receiving supplementary funds from GASCOR and (WESTAR) to enable these employees to be paid on a similar basis. In the event his efforts in that regard were to no avail. Ms Richards also contended that the fact that SERCO made those payments albeit funded by GASCOR meant that SERCO had adopted a policy of two weeks pay for year of service for the blue collar workers and that policy in fairness and equity ought be applied to the four applicants.
Mr. Lacy contended that there was no requirement for an employer when making employees redundant to provide the same formula or utilise the same formula to provide for comfortable redundancy payments. In that regard he provided a number of authorities which have been set out above. However on the material before me there is clearly a standard of redundancy pay of two weeks per year of service for the gas industry in Victoria as is evidenced by the fact that GASCOR (and its now constituent part WESTAR) made redundancy payments according to that formula and SERCO certainly applied that formula albeit at the insistence of WESTAR to the other 100 redundant employees.
In considering these issues I have regard to the requirements of s.170CA that in considering such matters the Commission must be concerned to ensure that `a fair go all round' is accorded to both the employer and employee(s) concerned. It is clear on the evidence before me that the supplementation by GASCOR of redundancy payments made to the blue collar workers meant in the end that SERCO did not have to fund fully its element of the severance payments made to the blue collar workers. SERCO acknowledged that it paid 3.2 weeks severance pay to each of the blue collar redundant employees rather than four weeks provided in the contract. As a consequence it benefited to an amount of 80 weeks severance pay which under the contract of employment it would have had to have paid those blue collar workers which it was ultimately not required to fund. In my view it is clear that Mr. Coghill through his actions in seeking additional funding from GASCOR, which was not acceded to, clearly accepted that the four applicants, that is the four redundant white collar workers, were not treated equitably.
In light of the failure of SERCO Gas Service Pty Ltd to treat those employees comparably with the redundant blue collar workers and taking into account savings which SERCO itself achieved by the assistance provided by GASCOR I am of the view that a fair go all around was not accorded to the redundant four employees whose applications are before me and therefore that their termination was both unfair and unjust." [Print R0909 at p.19]
[9] Leaving aside any factual errors in the decision (to which we will return later) it is apparent that Commissioner Holmes did consider the argument for differential treatment but rejected it on the material. In our view, these passages afford no basis for the submission that Commissioner Holmes misdirected himself in relation to the question of providing different treatment for different groups. Accordingly, there is no substance in this point.
[10] The second broad ground of appeal was that Commissioner Holmes failed to give weight to the following factors:
· SERCO did all it could to secure for the respondents the same benefits as the blue collar workers received and it was not suggested that these efforts were in some way a sham; and
· there was no suggestion that SERCO acted capriciously or oppressively in respect of the respondents;
and wrongly gave weight to:
· what Mr Coghill, (a witness for SERCO's) thought about equity between the respondents and the blue collar workers was irrelevant to the issue.
[11] We consider that Commissioner Holmes did take into account the fact that Mr Coghill had attempted to secure redundancy payments from GASCOR as noted earlier in this decision.
[12] The substance of this argument appears to be, however, that Commissioner Holmes should have concluded that SERCO having done all it could to secure the payments from GASCOR its conduct should not be considered harsh, unjust or unreasonable. We do not accept that proposition. The responsibility not to act harshly, unjustly or unreasonably is cast by the legislation upon the employer. It cannot avoid that responsibility simply by asserting that some other body had refused to fund its action. While we accept (as we think Commissioner Holmes did) that SERCO did not act capriciously or oppressively it was open to Commissioner Holmes to conclude that its decision to refuse to pay a benefit payable to other retrenched employees based on the decision by GASCOR not to fund such benefit was unfair and unjust.
[13] As to the suggestion that what Mr Coghill considered was irrelevant to Commissioner Holmes's determination we do not agree. We believe that the inference drawn about Mr Coghill's view was reasonably open to him on the material. Moreover, we believe Commissioner Holmes was entitled to take that matter into account under s.170CG(3)(e) of the Act.
[14] The next ground advanced by the appellant in its written submissions was that the evidence supported a finding that the appellant did what it could to alleviate the impact of the redundancy on respondents and its conduct ought to have been properly seen in that light. It was submitted that the appellant took all steps consummate with reasonable and fair considerations that one was entitled to expect in the employer/employee relationship. In this respect reliance was partly placed on the fact that the respondents received substantial superannuation benefits. In our view, it was open to Commissioner Holmes to disregard the issue of superannuation benefits for the reasons outlined in his decision, namely that the redundancy payments were enjoyed by both blue and white collar workers and that the redundancies arose as a result of the termination by GASCOR and not as a result of the termination by the appellant. We have dealt above with the submission that Commissioner Holmes failed to take into account the employer's conduct in relation to alleviating the impact of redundancy.
[15] The second broad ground of appeal dealt with the appellant's written submission that there was no evidence to support the finding by Commissioner Holmes that SERCO "benefited to an amount of 80 weeks severance pay which under the contract of employment it would have had to have paid those blue collar workers which it was ultimately not required to fund." [Print R0909 p.19]. It was submitted that the fact that the appellant paid "3.2 weeks of the redundancy payments does not warrant the presumption that SERCO had the benefit of the other .8 of a week that SERCO would have had to pay to the `100 blue collar workers' but for the intervention of a third party."
[16] It was also submitted that a denial of natural justice was involved in drawing such an inference because it was not put directly to the witnesses for SERCO.
[17] We have examined the transcript and we consider that there was evidence sufficient to justify the finding of Commissioner Holmes in relation to this matter, however since the evidence was given in confidence we do not propose to set out the particulars of that evidence in this decision.
[18] We take the submission to be based on the rule in Browne v. Dunn [(1894) 6 R 67]. That rule requires that:
". . . unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings."
[19] However, in this case what was being relied on was a conclusion to be drawn from the evidence rather than a contradiction of the evidence of any SERCO witness. Moreover, in this case it is clear from pages 282 and 283 of transcript (before Commissioner Holmes) that the conclusion to be drawn from the evidence was put directly to Commissioner Holmes in the submissions of the respondent. No complaint of a denial of natural justice was made at that stage. Indeed, the appellant had the opportunity before Commissioner Holmes to reply to the submission. We do not think there is any substance in this point.
[20] The third broad ground of appeal amounts to a contention that Commissioner Holmes fell into error in assessing the appellant's offers of alternative employment subjectively and not objectively. In particular, it was suggested that Commissioner Holmes was in error in deciding the matter by reference to the personal circumstances of the respondents. In this respect reference was made to the decision in Derole Nominees Pty Ltd [Print J4414] (Derole Case) which held that in determining the question of whether suitable alternative employment had been offered by the employer the test was an objective one, as the following passage from that case makes clear:
"We are satisfied that the Commissioner erred in principle in considering the test which is to be applied in determining whether acceptable alternative employment has been obtained. In the course of his decision the Commissioner stated his view that the failure of the employees to accept the employment meant that necessarily the alternative employment was unacceptable. This approach is inconsistent with the decision of a Full Bench of the Commission (Munro J, Peterson JJ and Leary C) in a decision on appeal concerning an application by a company known as Hot Tuna Proprietary Limited for exemption under subclause 51(e) of the award [Print H3100]. This decision makes clear that the test to be applied to determine whether employment is `acceptable' within the meaning of the clause is an objective one. That is to say the question whether particular employment for an employee is acceptable must be determined according to objective standards." [ibid., p. 3]
[21] We have carefully read the decision of Commissioner Holmes and we do not think the approach taken by Commissioner Holmes was inconsistent with that set out in the Derole Case. It is true that Commissioner Holmes expresses his conclusions in the form of the decisions by the individuals but in the context of the passages we think he is confirming the decisions of the individuals as reasonable in the objective sense. For example in relation to Mr Barrett the following passage appears:
"However, for a range of reasons Mr. Barrett understandably decided that the proposal was not satisfactory to his needs. Certainly SERCO acknowledged the fact that the duties involved etc were significantly different from those which he had undertaken at Bendigo. Again issues involving family circumstances etc were of importance in Mr. Barrett's deliberations regarding that particular option." [Print R0909 p.18]
[22] We take the word "understandably" in this sentence to be objective confirmation of the position. In all of the circumstances we do not think an error of principle was disclosed in this area.
[23] The final ground in the appellant's written submissions deal with compensation. In particular two aspects were complained of:
· no attempt was made to assess the amount of salary the respondents would have received had their employment not been terminated; and
· the Commission simply applied the same formula used to calculate the retrenchment payments of the blue collar employees.
[24] In this respect the material in relation to the loss of income by each of the respondents was contained in their evidence (exhibits B1, B4, B5 and B7) and these matters were referred to by Commissioner Holmes in his decision. Accordingly, he cannot be said to have been in error in failing to have regard to such material. Moreover, whilst it is clear that Commissioner Holmes did have regard to the basis of calculating severance payments received by blue collar employees we consider he was entitled to do so under s.170CH of the Act.
[25] Whilst members of this Full Bench may not necessarily have come to the same conclusion about the level of compensation awarded, the approach by Commissioner Holmes appears to us to disclose no appealable error.
[26] For the above reasons we conclude that none of the grounds spelt out in detail in the appellant's written submission disclose an error of the type which justifies the grant of leave to appeal.
[27] Accordingly, leave to appeal is refused.
BY THE COMMISSION:
VICE PRESIDENT
Appearances:
B. Lacy of Counsel for SERCO Gas Services Pty Ltd.
M. Richards of Counsel for H.A. Alkemade and others.
Hearing details:
1999.
Melbourne:
May 25.
Decision Summary
Termination of employment - unfair dismissal -- appeal - full bench claimed Commission misapplied "fair go all round" test - claimed Commission feel into error in paying regard to the treatment of other employees in applying the test under 170CG - held per Mollinger's Case that it was appropriate to have regard to the different treatment of another employee in similar factual circumstances - noted Loty's Case does not preclude the differential treatment of employees in relation to the application of the principle of a fair go all round - held approach taken by the Commission discloses no appealable error - leave to appeal refused. | ||||
Appeal by SERCO Gas Services Pty Ltd against a decision of Holmes C (Print R0909) issued 21 January 1999. | ||||
C No 30526 of 1999 |
Print R6090 | |||
Ross VP Polites SDP Hingley C |
Melbourne |
21 June 1999 | ||
Printed by authority of the Commonwealth Government Printer
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