WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2016 WAIRC 00786

DELIVERED : Wednesday, 21 September 2016

FILE NO. : M 11 OF 2016

Claimant

AND

Clough Projects Pty. Ltd.

Respondent

CatchWords : Adjournments

Legislation : Fair Work Act 2009
Industrial Magistrates Courts (General Jurisdiction) Regulations 2005

Case(s) referred to
in reasons  : Myers v Myers [1969] WAR 19
    Minister for Immigration and Multicultural Affairs v Bhardwaj
    [2002] HCA 11
    Compass Group (Australia) Pty Ltd v National Union of Workers                                                         [2015] FWCFB 8040
    Fashion Flair Pty Ltd v Department of Industrial Relations (1999)
    92 IR 271
    Re: Application for Redundancy Award (1994) 53 IR 419

Cases also cited : Transport Workers' Union (NSW) v Veolia Environmental Service (Australia) Pty Ltd [2013] NSWIRComm 22

Result : Application granted

Representation:

Claimant : Mr M. Jones appeared on his own behalf.

Respondent : Mr M. Borlase (industrial officer) for the respondent

REASONS FOR DECISION

(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of proceedings and edited by her Honour)

1         I have had the chance to read the claimant’s submissions, heard further from the claimant, and heard the respondent’s submissions.  I will deal with the matter today and give extemporary reasons for my decision in this application.  The parties will be provided with those reasons in writing in due course.

2         In this matter, the court is dealing with an application by the respondent for the trial listed on 5 October 2016 to be vacated and relisted to a further date.  This application is opposed by the claimant.  At all times in this application the onus is on the respondent, on the balance of probabilities, to persuade the court to make the order that it seeks.

3         Before commencing my determination of this particular application, it is important to set out the background to the matter.

4         The claim before the court is a claim for a redundancy payment pursuant to s119(1) of the Fair Work Act 2009 (FW Act).  Mr Marc Longley Jones (Mr Jones) filed his claim on 28 January 2016 and the claim is for the sum of $19,728.  The claim is defended on the basis set out in the response filed on 1 March 2016, which is that the respondent states that its obligations to provide redundancy payments pursuant to s119 of the FW Act do not extend to circumstances where an employee’s employment is terminated due to the ordinary and customary turnover of labour.  The respondent states that this is what occurred with Mr Jones’ employment.

5         Section 119 of the FW Act relevantly states:

(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour.

6         The effect of s119 of the FW Act is that it creates an entitlement to redundancy payment in certain situations, but that entitlement does not result in payment if the employment was terminated because of the ordinary and customary turnover of labour.  Clearly that is the essential element in dispute in this claim.

7         The application by the respondent to vacate the trial was made on the basis as set out in Mr Michael Borlase’s (Mr Borlase) affidavit sworn 2 September 2016 and attached to the application of the same date.  Essentially, the ground is that Ms Nada Jevtic (Ms Jevtic), a recruiter for the respondent responsible for the recruitment of Mr Jones has crucial evidence relating to this issue, which is the significant issue in dispute in the matter.  That recruiter ceased being employed by the respondent in 2011, was located, but was unable to attend the trial date. Ms Jevtic is a willing witness and will attend to give evidence at trial, but has prearranged travel arrangements from Australia which prevent her attending at the trial on 5 October 2016.

8         Mr Borlase has made submissions, which I will return to later, as to why Mr Jevtic’s evidence is crucial and Mr Jones has provided written submissions in response.

9         It is important that I note the actual test that I will be applying in determining this application and that is essentially that:

Where the refusal to adjourn would result in serious injustice to one party an adjournment should be granted unless, in turn, this would mean serious injustice to the other party: Myers v Myers [1969] WAR 19

It is fundamental to the administration of justice that persons are given the full opportunity to present their case.  The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case: see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 594 [40] and the various cases which rely on that case.

10      In particular I would also note reg 5 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (Regulations) which clearly sets out the court’s duties in dealing with cases.  These duties bind this Court and direct my inquiries within that framework.  It states that:

(1)    A Court is to ensure that cases are dealt with justly.

(2)    Ensuring that cases are dealt with justly includes ensuring –

(a)    that cases are dealt with efficiently, economically and expeditiously.

(b)    so far as is practicable, that the parties are on an equal footing; and…

(c)    that a Court’s judicial and administrative resources are used as efficiently as possible.

11      This imports not only the position of the parties, but also the desired outcome that the Court’s resources are not wasted as well.

12      I would note that whilst the timing of the respondent’s application to adjourn this case is not ideal, neither could it be described, in my view, as particularly dilatory.  The notice of trial was given on 9 June 2016.  I understand from the affidavit that the witness contact was on 31 August 2016, which was well within the time allowed to file the witness statement due on 14 September 2016, all going well.  The witness’ arrangements are of course, beyond the control of the respondent and this application was made on 2 September 2016, immediately or as soon as practical after that issue became known to the respondent.

13      Mr Borlase has submitted that the respondent will suffer substantial injustice if Ms Jevtic’s evidence is not able to be presented to the court. Her evidence goes not only to the particular circumstances of Mr Jones’ employment or recruitment, but as to the business practices of the respondent and as to the consistency of how the position was described to other applicants and employees. This is an important issue, a very important issue, and I think it is appropriate that I set out what the court will be doing when it looks at Mr Jones’ claim.

14      As I have said, the court will be deciding whether or not Mr Jones’ claim for redundancy falls within the exclusion in s 119(1)(a) of the FW Act.  It is clear from the case law that it is necessary in each case to look at the factual circumstances in which the redundancy occurred and the cause of the termination of employment to determine whether or not it was due to the ordinary and customary turnover of labour.  That particular phrase has been given a significant amount of judicial attention and does not turn solely on a consideration of the terms of the written contract of employment, if there is one.

15      In Compass Group (Australia) Pty Ltd v National Union of Workers [2015] FWCFB 8040, which Mr Borlase has referred to, the Commission noted:

[24] The importance of the questions to be asked at the time it is determined that the employment has come to an end is not to be underestimated, with the product of such inquiry demanding that each case will depend on its own circumstances.

[25] We have considered a number of single member decisions regarding the exception. In our view these decisions do not suggest that the approach outlined above is incorrect.

[26] We also note the reasoning of the Industrial Court of NSW in the matter of Transport Workers' Union (NSW) v Veolia Environmental Service (Australia) Pty Ltd, which gave practical application to the circumstantial inquiry we have referred to.  In that matter, being a civil penalty action under the Fair Work Act 2009 Haylen J:

• Followed earlier reasoning of the NSW Court and Commission that establishing whether a termination did not take place in the ordinary and customary turnover of labour is a question of fact, which requires regard to be had to ‘the normal features of the business wherein the employee worked’, as well as whether it was customary to dismiss employees regardless of their service history upon the loss of contracts;
• Considered that other decided cases on the question of ‘ordinary and customary turnover of labour’ have examined whether there is a known or understood lack of continuity of work; and
• Distinguished the circumstances of the employee who was the subject of the case from the proposition put forward by his former employer that, with the end of its contract, his employment would end as well.  Instead, the employee had performed work at other contract sites as well as the one for which the contract had been lost; and it was not customary for employees to be dismissed upon the loss of a contract.  He was not a seasonal or casual employee and his rate of pay was not loaded for those factors, or the intermittency of his employment.  In all, he had ‘a settled expectation of continuing employment and that expectation increased with the length of his employment and his engagement on other contract work held by the respondent’.

[27] In order to determine whether the exception applies in a given case it is necessary to consider the normal features of the business and then determine whether the relevant terminations are properly described as falling within the ordinary and customary turnover of labour in that business. This is a question of fact, to be determined on the basis of the circumstances of each termination and each business. It necessarily focuses on the business circumstances of the employer.

16      There is also further guidance in Fashion Flair Pty Ltd v Department of Industrial Relations (1999) 92 IR 271, which is to the effect that:

The concept of the ‘ordinary and customary turnover of labour’ has been considered in subsequent cases. It has frequently been observed that whether an entitlement to redundancy or severance pay accrues upon termination depends upon whether there was a ‘settled’ expectation of continued employment or whether the employees were aware that their employment was for a specified period or task [280].

17      Other cases are Re: Application for Redundancy Award (1994) 53 IR 419 and Australian Workers’ Union v Leyton Contractors, an unreported decision.  In Re: Application for Redundancy Award, the Commissioner stated:

Taking a balanced view of the case as a whole, it is appropriate that this aspect of terminations, traditional as it is, be distinguished from redundancies arising from economic recession and financial stress, technological change and company reconstruction or restructuring. Terminations in the context of the general turnover of labour are the norm; they are expected: there is no basis for thinking that some ‘settled expectation’ has been lost. The occurrence of the likely or expected event should not bring with it an unnecessary and unwarranted additional burden on the employer and a windfall gain for the employee (444).

18      It is clear from those matters that when the court considers Mr Jones’ case, it will consider his contract of employment and any subsequent extensions of that, but it will also consider the matters raised in the Compass decision and whether or not there was a settled expectation of continued employment.  I accept that, as outlined to me today in Mr Borlase’s submissions, that Ms Jevtic’s evidence will be relevant and I am told, crucial to the employer’s presentation of its defence on that issue.  In saying that, I am in no way suggesting or pre-judging the likely outcome of the matter.  It is a matter to consider before the matter comes to trial when considering the question of injustice to the parties.

19      Mr Jones’ written submissions have pointed out that he has, to date, suffered a nine month delay in receiving a redundancy payment, even before any proposed reschedule to the trial date.  Quite clearly I accept that he will suffer the prejudice of a delay in obtaining his redundancy payment, should he ultimately be successful.

20      He also points out the parole evidence rule in relation to the construction of his written contract of employment.  However, I hope I have made quite clear that the court’s inquiry goes well beyond the written terms of that actual employment contract, although that is a particular matter of importance in the consideration of the case.

21      Mr Jones questions the accuracy of recollection of Ms Jevtic. That will be something which will be tested and can only be properly tested if she appears in person before this court.  Mr Jones has pointed out that he feels the respondent has been disingenuous and tardy in locating Ms Jevtic and I have already commented on that.

22      I accept that Mr Jones will suffer the injustice of a delay to his case and that is against a background where one of the things this court is required to do is deal with the case efficiently and expeditiously. Those requirements of course do not have any greater weight that the need to ensure that court cases are dealt with justly.

23      Having weighed the injustices to both parties, it is clearly inevitable that whichever way the matter is decided, one of the parties will, by definition, suffer an injustice.  In this case, I am persuaded by the respondent that it will suffer a significant injustice as it will not have the opportunity to present its defence by way of the crucial evidence of Ms Jevtic which will go to the matters that I have described.  I do accept that her evidence will impact on the Industrial Magistrates Court’s inquiries as to whether the redundancy payments are precluded under s119(1)(a) of the FW Act, if it is found that the termination was due to the ordinary and customary turnover of labour.

24      Mr Jones will suffer injustice from the delay. He is clearly seeking a significant entitlement monetarily from the termination of his employment. Whilst I accept that is an injustice, in my view it is not as significant as that which will be suffered by the respondent.  To some extent, whilst it may be cold comfort to Mr Jones at this point, the provisions of the FW Act and the regulations of the Industrial Magistrates Court provide for interest to be payable on any sum awarded, which may go some way to amelioration of the hardship suffered.

25      For those reasons, I do grant the application of the respondent to vacate the hearing, which is due to be held on 5 October 2016.

M. PONTIFEX

INDUSTRIAL MAGISTRATE