WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES ANTHONY AND SONS PTY LTD T/A OCEANIC CRUISES

APPELLANT

-and-

PETER FOWLER

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  COMMISSIONER S J KENNER

  COMMISSIONER S M MAYMAN

DATE FRIDAY, 3 JUNE 2005

FILE NO. FBA 53 OF 2004

CITATION NO. 2005 WAIRC 01744

CatchWords Industrial Law (WA) - appeal against decision of single Commissioner - denial of contractual benefits - casual employee - termination of employment - redundancy - procedural fairness - loss/injury -  Industrial Relations Act 1979 (as amended), s29(1)(b)(i), s29(1)(b)(ii), s49.

Decision Decision at first instance varied and appeal otherwise dismissed.

Appearances 

Appellant Mr K Trainer, as agent

Respondent Mr P Fowler

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1         This is an appeal against the decision of the Commission, constituted by a single Commissioner, given on 30 November 2004 in application No 782 of 2004, and the appeal is against the whole of the decision.

2         A notice of appeal was filed on 20 December 2004.  The appeal is brought under s49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).  The decision appealed against is, formal parts omitted, as follows (see page 16 of the appeal book (hereinafter referred to as “AB”) (2004) 84 WAIG 3855 at 3859.):-

“DECLARES that the Applicant was unfairly dismissed by the Respondent;

ORDERS that the Respondent pay the Applicant the sum of $676 (gross) and $3,000 (net) within seven (7) days of the date of this Order;

ORDERS that the application is otherwise and is hereby dismissed.”

GROUNDS OF APPEAL

3         The appellant now appeals against that decision on the following grounds (see page 2 (AB)):-

“1. The Commission erred in finding that there was a dismissal of the Respondent on 19 May 2004.  The Commission ought to have found that

1.1 There was no employer/employee relationship between the parties on 19 May 2004.

1.2 The employment relationship between the parties came to the completion of each period of duty.

1.3 Each period of duty stood alone.

1.4 The roster did not represent an engagement of the Respondent’s services for any period.

2. The Commission erred in failing to give proper weight to its finding that the Appellant had a valid reason to downsizing its operations

2.1 The Appellant was entitled to reduce the number of skippers it employed.

2.2 The Respondent consequently could not have an expectation of further offers of employment

3. The Commission erred in finding that the Respondent was entitled to or ought to have been allowed to work on the 19 May 2004.

4. There was no basis for the Commissions conclusion that the Respondent suffered any loss of opportunity in the period from 19 May 2004 until the end of May.

5. The Commission erred in making an award for injury when

5.1 The Commission did not make any finding that the effects of the termination on the Respondent were any more than those ordinarily associated with a termination

5.2 There was no substantive evidence to support the findings

5.3 The amount ordered was arbitrary.

5.4 The amount ordered was punitive.

5.4 Alternatively, the amount ordered was excessive”

BACKGROUND

4         Mr Peter Francis Fowler, the above-named respondent, made application to the Commission claiming that he was harshly, oppressively and unfairly dismissed on 18 May 2004.  That application was made by way of a claim under s29(1)(b)(i) of the Act, filed on 14 June 2004.  There was also a claim by the same application, pursuant to s29(1)(b)(ii) that Mr Fowler had been denied a contractual benefit, not being a benefit under an award or industrial agreement, namely pay in lieu of leave for six months’ service.

5         Mr Fowler was employed by the above-named appellant as a ferry captain or skipper.  His employment was terminated when his name was removed from the weekly roster of the appellant on 16 May 2004.  It is common ground that Mr Fowler commenced employment on 23 September 2002.  He alleged that he was employed as a casual employee.  However, at the commencement of the hearing, Mr Fowler contended that his engagement in law was permanent.  He was paid a flat rate of pay for each hour he worked.  It was the case for the appellant that Mr Fowler’s employment was terminated because there was a downturn in trade which resulted in the appellant discontinuing one of its ferry services.  Consequently, there was a need to reduce the number of skippers whom it employed.

6         Thus, Mr Fowler’s name was removed from the roster because he was one of two skippers who drove the vessel which conducted the service that was to be discontinued.  The appellant said that it made the decision that it would not roster Mr Fowler for future services and would retain the services of the other skipper on grounds of family responsibility.

7         The case for the appellant, who was the respondent at first instance, was that each time Mr Fowler reported for work to conduct a ferry service, it constituted a separate engagement so that no notice was required to terminate his casual contract of employment.  Mr Fowler submitted that, even if he could be regarded as a casual employee, he had an ongoing expectation of work from week to week.  He said that his dismissal was unfair and oppressive or harsh, since there was work for him to carry out, and, further, that his dismissal was effected without notice and without procedural fairness.

8         At all material times, Mr Fowler held a Master Class 5 Certificate and had held it since 1996.  He had served for 25 years in the Royal Australian Navy, retiring from the Navy in 1993.  During his working life, he had driven a number of different classes of vessels around the world in different types of waters from 42 metre patrol vessels to 30 metre tugs and fuel lighters, to passenger ferries.  Since 1998, he had skippered various boats along the Swan River.  His Master Class 5 Certificate restricts him to driving vessels no longer than 23.9 metres.

9         Before he was employed by the appellant, Mr Fowler worked for Boat Torque as a Senior Master.  He was employed by Boat Torque for three years, and, for the most part, drove river boats along the Swan River.  Boat Torque went into receivership and he was contacted by a director of the appellant, Mr Antonio Di Latte, who offered him a job working as skipper for the appellant.  Mr Fowler said in evidence that Mr Di Latte told him that he wanted Mr Fowler to develop a wine cruise to the Swan Valley and was building the most luxurious boat, “Queen of the Valley”, for that purpose.  Whilst working for Boat Torque, Mr Fowler had driven vessels used for wine cruises, night cruises and special functions.

10      At the initial interview, Mr Fowler was told that he would not be paid annual leave.  Mr Di Latte also informed Mr Fowler that, if he stayed with the company for 12 months, he would be paid two weeks’ pay as a bonus.  Mr Fowler said that he thought that the bonus was payment for holidays.  He understood that he would not be paid sick leave, but he was informed by Mr Di Latte at the time he was engaged that he would be employed as a casual for a three month probationary period or for a three month trial.  After considering the offer, he agreed to commence his employment with the appellant. 

11      Mr Fowler, in evidence, maintained that, after the trial period, he expected that his status as an employee would change.

12      On 28 August 2002, he signed a tax declaration which records his employment as casual.  He was paid $22.00 per hour for each hour he worked during the day and $23.00 per hour for each hour he worked at night, together with a uniform allowance of $2.50 per shift.

13      From the time he commenced employment until his dismissal, Mr Fowler was rostered to work on a weekly basis to drive river vessels.  The rosters ran from Thursday to Wednesday of each week and the roster for the following week was usually posted on the Sunday evening before the commencement of the roster on the following Thursday.  The rosters were set each week depending on the availability of the vessels and what cruises were proposed to run the following week.  The rosters showed the cruises for that week, the hours actually worked by each skipper and any changes to the roster during the roster period.

14      Mr Fowler usually drove “Queen of the Valley”.  He also drove another vessel called “Classique” which was used for “coffee cruises” and functions.  On occasions, he drove a vessel called the “River Cat”.  Most weeks, however, he was rostered to drive the “Queen of the Valley” and the “Classique”.  If cruises were cancelled before Mr Fowler or any other skipper reported for work, they were not paid.  On occasions, a “coffee cruise” was cancelled at the last minute if there were no customers.  If the proposed duration of a cruise was shortened, Mr Fowler was only paid for the hours worked.

15      The rosters showed that Mr Fowler was usually rostered to work five days per week with two rostered days off.  Sometimes his rostered days off were consecutive and, on other occasions, they were spread throughout the week or weekend.  When he was not available to work or asked for a day off, his practice was to leave a note for Mrs Gabrielle Di Latte who prepared the rosters.  When he advised Mrs Di Latte that he did not wish to be rostered on a particular day his request was usually accommodated.  Occasionally, a request by him not to be rostered on a particular day was not granted and he accepted that as he himself had in the past prepared rosters.  He accepted that, whilst it was open to him to make a request not to be available for work on a particular occasion, it was common knowledge that, if any of the skippers accepted work elsewhere, they would be taken off the roster.  Mr Fowler understood that his hours of work would be reduced in winter and when passenger numbers were down.  He also said that Mr Di Latte had assured him that his company does not lay off people in winter and that Mr Di Latte had informed him that there would always be hours to do and that he, Mr Di Latte, would “look after” him.

16      When cross-examined, Mr Fowler admitted that, as a casual employee, the appellant did not have to offer him work each week and he could be rostered to work in any manner which the appellant chose.  Nonetheless, he maintained that he was assured by Mr Di Latte that the work would be ongoing.

17      Mr Fowler gave evidence that it was common practice for the skippers to swap shifts among themselves.  In cross-examination, he admitted that, if another skipper agreed to take on his shift, he would not be paid for the shift which he gave up since he would only be paid for the shifts which he actually worked and not for the shifts he was rostered to work.

18      Another skipper called Andrew telephoned Mr Fowler on 16 May 2004 and told him that he was not on the roster for the following weekend.  Mr Fowler had worked that day, but was rostered off on 17 and 18 May 2004.  He was rostered to work on Wednesday, 19 May 2004.  He telephoned the appellant’s office to ask for a copy of the roster to be faxed to him, which was the usual practice, and was informed that Mrs Di Latte had said that it should not be faxed to him, and that Mr Di Latte would ring him later.  He then tried to telephone Mr Di Latte on a number of occasions but Mr Di Latte did not return his telephone calls.  He later received a letter from Mr Di Latte dated 18 May 2004, which states (see exhibit E, page 56 (AB)):-

“Dear Peter

Refer:  Employment

Unfortunately, with the downturn in ferry trade and the general lack of tourists throughout winter, we are forced to reduce costs and overheads.

From today and for the immediate future I’m advising that there is no requirement for your services as a skipper on our vessels.

If this situation changes I will contact you.  Thank you for your past efforts and we wish you well in the future.

Regards”

19      Mr Fowler was not allowed to work on 19 May 2004.  The roster for that week shows that his name was crossed off the roster for that day and Andrew’s name was written in for the cruise which was to be undertaken by Mr Fowler on that day.

20      Mr Di Latte said in evidence that, at the beginning when he interviewed Mr Fowler, the words he would have used were that “I would try to maintain your level of work during the year”.

21      Mrs Gabrielle Di Latte gave evidence that she is the appellant’s office manager, having held that position since 1992 and prepared the weekly rosters.

FINDINGS AT FIRST INSTANCE

22      The words “casual employee” has no fixed meaning.

23      The Commissioner at first instance found as follows:-

a)             The true nature of any employment relationship will depend on the facts and circumstances of each case (see Doyle v Sydney Steel Company Limited [1936] 56 CLR 545 at 551 and 565).

b)             The nature of casual engagement has been set out in a number of decisions of this Commission (see Serco (Australia) Pty Ltd v Moreno (1996) 76 WAIG 937 at 939 (FB) and the cases cited therein, where the President observed:-

“…. The concept of casual employment within the common law of employment, untrammelled by award prescription, is generally taken to connote an employee who works under a series of separate and distinct contracts of employment entered into for a fixed period to meet the exigencies of particular work requirements of an employer, rather than under a single and ongoing contract of indefinite duration.”

c)             The parties cannot of course, by use of a label, render the nature of a contractual relationship something different to what it is (see Stewart v Port Noarlunga Hotel Ltd (1980) 47 SAIR 406 at 420 per Haese DPP).

d)             In the Australian Industrial Relations Commission, it has been accepted that the status of “casual employment” is not necessarily inconsistent with the concept of an ongoing contract of employment (see Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385, applied in Swan Yacht Club (Inc) v Bramwell (1997) 78 WAIG 579 (FB)).

e)             In this matter, Mr Fowler worked a substantial number of hours each week from 22 September 2002 to 18 May 2004, his hours varying between 20 hours per week on one occasion and 44 hours per week on another occasion.  On average, he worked over 30 hours per week.  It cannot be disputed that there was a reasonable mutual expectation of continuity of employment.

f)              Mr Fowler had a continuing contract of service, even though it was a contract which could be described as a “casual” contract of employment which did not entitle him to be paid sick or annual leave.

g)             By failing to roster him for work and not allowing him to work on 19 May 2004 which was the last day he was rostered to work, this constituted a dismissal.

h)             The Commissioner preferred the evidence given by Mr Fowler to the evidence of Mr Di Latte, having heard the evidence of the witnesses and observed their demeanour, because Mr Fowler gave his evidence in an honest and open way and openly admitted matters when they were put to him.

i)              Mr Di Latte was not an honest witness, in the Commissioner’s opinion.  He was argumentative, his evidence that Mr Fowler’s last rostered cruise was cancelled was not truthful, and the roster clearly showed that it was Andrew’s “River Cat” cruise that was cancelled on 19 May 2004.

j)              The crossing of Mr Fowler’s name off the roster on 19 May 2004 and the insertion of Andrew’s name instead was contrary to practice because changes to the existing roster were made by arrangement between the skippers.

k)             Mr Di Latte’s evidence about the rostering of skippers was inconsistent with the evidence of Mrs Di Latte and was also inconsistent with her evidence about the information given to Mr Fowler by telephone on Monday, 17 May 2004.

l)              Mrs Di Latte was a credible witness and her evidence was not inconsistent with Mr Fowler’s evidence.  Thus, the Commissioner preferred the evidence given by Mr Fowler and Mrs Di Latte.

m)          That, as the appellant made the decision to reduce its number of river cruises from four to three, the Commissioner was satisfied that the appellant did have a valid reason for restructuring its business by reducing its number of skippers.

n)             However, Mr Fowler should have been allowed to complete his shift on 19 May 2004 because he was rostered to work the “Queen of the Valley” cruise that day.  On that day, the “Classique” was running and another skipper, Mr Mick Doyle, was rostered to skipper that vessel for two shifts.  In the circumstances, there was no reason why Mr Fowler should not have been allowed to work the “Queen of the Valley” cruise on 19 May 2004.

o)             Reinstatement was not practicable as the appellant had reduced the number of its cruises, and, in any event, Mr Fowler was not seeking an order for reinstatement.

p)             An employee must demonstrate that they have suffered loss or injury caused by the unfair, harsh and oppressive dismissal.

q)             The Commissioner accepted that there was a valid reason for downsizing the operation and that the appellant was entitled to reduce a number of its regular cruises and thus the number of its skippers.

r)              Thus, Mr Fowler was unable to prove his contention, on the balance of probabilities, that the appellant had work for him to do beyond the end of May 2004.

s)             The manner of dismissal was blatantly procedurally unfair.

t)              The conduct in removing Mr Fowler’s name from the roster and not taking any steps to advise him of the decision and reasons why until a letter was sent on 18 May 2004 was oppressive, callous and humiliating.

u)             Mr Fowler should be paid compensation, being the loss of pay for eight hours’ work at $22.00 per hour for the lost opportunity to work the cruise on 19 May 2004 and $500.00 per week to work until the last week of May 2004, whilst the “coffee cruise” continued to run.  Thus, the only order for loss is one that the amount of $676.00 gross be paid to Mr Fowler.

v)             The Commissioner was satisfied that Mr Fowler had suffered an injury and made an award of $3,000.00 for the injury.

ISSUES AND CONCLUSIONS

24      The appeal is on the following bases:-

a)                  That it was an error to find that it was a dismissal.

b)                 That the Commissioner did not give proper weight to its finding that the appellant had a valid reason to reduce its operation.

c)                  That the Commissioner erred in finding that Mr Fowler was entitled to or ought to have been allowed to work on 19 May 2004 and there was no basis for the Commissioner’s conclusion that he suffered any loss of opportunity.

d)                 Further, the amount ordered by way of an award for injury was erroneous.

Ground 1

25      There was a major question to be answered in this matter.  The question was whether there was a dismissal of Mr Fowler on 19 May 2004.  That depended on allegations that the Commissioner at first instance ought to have found that there was no employer/employee relationship between the parties on 19 May 2004, because the employment relationship between the parties came to an end at the completion of each period of duty, and that therefore each period of duty stood alone, and that the roster did not represent an engagement of Mr Fowler’s services for any period.

26      In other words, the case for the appellant was that Mr Fowler was not dismissed because he was a casual employee (ie) at common law, he was an employee who worked under a series of separate and distinct contracts of employment entered into for a fixed period rather than for a single and ongoing contract of indefinite duration.

27      Thus, so the submission went, he was dismissed at the conclusion of one of a series of separate and distinct contracts entered into for a fixed period as a casual employee.  If instead his contract expired on 19 May 2004 and he was not dismissed, then there was no jurisdiction in the Commission to deal with the question of unfair dismissal, there not being any dismissal (see an example of expiration of a contract by effluxion of time, such as was alleged here, in Gallotti v Argyle Diamonds Pty Ltd (2003) 83 WAIG 919 (FB) and Gallotti v Argyle Diamond Mines Pty Ltd (2003) 83 WAIG 3053 (IAC)).

28      I add, however, that a casual employee may clearly be dismissed (see Serco (Australia) Pty Ltd v Moreno (FB) (op cit) at page 939-940).

29      What is casual employment has been considered in a number of appeals by Full Benches of this Commission (see Serco (Australia) Pty Ltd v Moreno (FB) (op cit), and more recently Swan Yacht Club (Inc) v Bramwell (FB) (op cit) at 583).

30      Whether a person is a casual employee depends on the facts and circumstances of each case.  The parties cannot, by the use of a label, render the nature of a contract of employment something which it is not.  That has been decided in a number of cases over the years in this Commission and elsewhere (see, for example, the discussion by the High Court in Doyle v Sydney Steel Company Limited (op cit) at pages 551 and 565).

31      Certainly there may be indicia which are indicative of the nature of the contract, but, taken alone, they are not necessarily determinative of the nature of the contract.  The indicia may include the classifying name given to an employee and mutually accepted by the parties, the provisions of the relevant award (if an award applies), the number of hours worked per week, whether the employment was regular, whether the employee worked in accordance with a roster prepared in advance, whether there was reasonable mutual expectation of continuity of employment, whether notice is required by an employee prior to the employee being absent on leave, whether the employee reasonably expected that work would be available, and whether the employer had a consistent starting time and finishing time for his/her employee.

32      The evidence in this matter was quite clear.  The appellant employed Mr Fowler during a period from 23 September 2002 to 16 May 2004, a period of almost 20 months.  He was “removed from the roster” on 16 May 2004 because one boat service was to be discontinued, and he was one of two skippers who drove the boat.  The appellant’s case was that the decision had been made not to “roster him for future services” and to retain the other skipper, Andrew, because of “family responsibilities”.

33      The appellant’s case was that each time he reported for work to “drive” a ferry, this constituted a separate engagement of Mr Fowler so that no notice was required to terminate his casual contract of employment, which, in fact, expired at the end of his time on duty, each time that he was on duty.

34      Mr Fowler was rostered weekly and usually drove one of two vessels.  One was “Queen of the Valley”, a wine cruise which went up into the Swan Valley, and the other was called “Classique”, which was used to take persons for a trip during which they were able to drink coffee.

35      The other skipper, Andrew, worked in tandem with Mr Fowler.

36      Mr Fowler admitted in evidence that he was not entitled to leave and he was paid at a rate, it was said, which contained a casual employee loading.  Mr Fowler was usually rostered five days a week with two rostered days off.  That is, he was rostered to work five days a week with two rostered days off, not necessarily taken consecutively.

37      The busiest time of the year was from October to December, after which trade would quieten down.  Then from the end of January it would pick up again until winter when it would quieten down again.

38      Mr Fowler was, however, rostered weekly throughout the time of his employment and for a week at a time, including his two days off.  The roster was, however, it was accepted, subject to the cancellation of work for any particular day or days by the employer if there were not enough customers for a trip or trips on that day.  The rosters were also subject to alteration if a skipper, including Mr Fowler, wanted a day off.  Then he would leave a note for Mrs Di Latte who prepared the rosters.  His request not to be rostered on a particular day was usually met, but it was not always accommodated and it was the right of the employer to accept that cancellation or not.  Mr Fowler accepted that that was the arrangement.

39      It was common knowledge that if any of the skippers accepted work elsewhere that skipper would be taken off the roster.

40      However, the matter can be best described in the words of Mrs Di Latte, the wife of Mr Di Latte.  It was her job to prepare the rosters.  It was she who was notified if skippers wanted to take time off.  As she said in evidence, and as coincides with the evidence of Mr Fowler, the roster is and was prepared according to the movements of the boats, and any changes which were to occur had to occur within the framework of the roster.  This might occur due to break downs, insufficient customers, cancellations or if a skipper were unavailable.  In other words, Ms Di Latte prepared the roster, from week to week, on the assumption that the skippers were available and would work as rostered.  She did not check whether they were available before preparing and promulgating the roster.

41      It is to be noted that a skipper, including Mr Fowler, of course, was only paid for the hours which he actually worked.  Thus, if he swapped shifts he was obviously not paid because he did not work.  If he finished early or late he was paid only for the hours which he worked.  Obviously if he worked more hours than he expected to on that day he would be paid more money.

42      The work which Mr Fowler did was labelled casual.  There was no finding at first instance that any award applied to Mr Fowler’s employment, nor was it suggested in this hearing that any such finding was made.  There is no doubt that the employment was labelled “casual”.  The classification name given to Mr Fowler’s job, namely “skipper” does not indicate the nature of his employment one way or the other.  It was not established that any award applied.  The number of hours which he worked per week were regular, depending on the seasons.  However, there were fixed and regular rosters which were worked by the skippers and which it was expected would be worked by the skippers.  The hours which Mr Fowler and other skippers worked were fixed in advance.  Certainly, they were able to swap a shift at the change of skippers, or to seek to not work a shift, but that latter matter was one within the power of the employer to deal with.  It was not a matter of right or a matter for the decision of the employee.  There were fixed starting and finishing times set out in the roster.  There was clearly a reasonable expectation of continuity of employment on the part of Mr Fowler, and, indeed, that expectation was met for a period of approximately 20 months until the employer terminated, all of a sudden, Mr Fowler’s employment with little notice.

43      Mr Fowler also had a reasonable expectation that work would be available and would continue to be available, and that expectation was met whilst it continued for a period of almost 20 months without any indication that it would not continue.  His expectation in that regard was clearly met.  The arrangement might readily be found to be continuing and indefinite.  He was in regular employment indefinitely for approximately 20 months and his employment had the nature of a permanent position.

44      That Mr Fowler was away for a week or so, and that he swapped shifts or gave notice of days when he was unable to work because he was ill or otherwise, does not at all detract from the regular, indefinite, continuing and permanent nature of his employment.  I have already referred to that.  That he worked to a roster prepared in advance with the expectation that he would comply with it also detracts from any suggestion that he was working a series of separate distinct contracts of employment entered into for a fixed period.  That is the essence of casual employment and a finding that the employment was casual could not be made for that reason.

45      I would add that because working the rosters involved working for a single and ongoing contract of indefinite duration that also meant that the contract was not a casual one.  That he agreed not to claim leave or an entitlement to leave is inconclusive because paid leave is often excluded if the parties or one of them is under the impression that the contract is not one which imposes an obligation upon the employer to pay annual leave, sick leave, or that other terms and conditions also or alternatively might apply.  In any event, if the contract is one to which the Minimum Conditions of Employment Act 1993 applies, whether the parties or a party are of the view that annual or other leave should be paid, is not to the point because the obligation to pay for annual leave or sick leave is a condition of the contract implied pursuant to s5 of the Minimum Conditions of Employment Act 1993.

46      If Mr Fowler were a part-time permanent employee, which it was clearly open to find that he was, he may well be entitled to leave.  Further, the fact that Mr Fowler was not paid for the hours which he did not work, and the fact that he had some extra time off for illness or otherwise did not mean that he was required to work as a casual employee.  In other words, such an arrangement, which was not implemented often, was not incompatible at all with the contract being a single ongoing contract of indefinite duration and therefore not a casual contract.  Further, swapping shifts is not incompatible either with such a finding.

47      I have already referred to rostered days off which constituted his regular days off each week.  That sort of flexibility also arose because work could be cancelled even though rostered if there were insufficient customers for a trip or trips.  There was a seasonal factor, too, but that did not detract from the ongoing nature of the contract.  Sometimes the roster was altered by the employer.

48      The Commissioner at first instance was, for those reasons, too, entitled to and correct to find that there was a clear employer/employee relationship between the parties on 19 May 2004 and that the employment relationship between the parties did not come to an end upon the completion of each period of duty.  For all of those reasons, the Commissioner was correct to find that the employment was not casual (see paragraphs 32 to 38 of the reasons for decision at first instance).  Therefore, each period of duty on each rostered day or even on rostered days off did not mean the termination of the contract and the continuing rosters represented clearly an engagement of Mr Fowler’s services for any period.  It was open and was correct to find.  The Commissioner was correct to find that the employment was not casual in that Mr Fowler did not work under a series of separate and distinct contracts of employment entered into for a fixed period, but rather that the contract between the parties was a single and ongoing contract of indefinite duration.  That was the correct finding on a consideration of all of the facts and circumstances of the case.

49      Ground 1 is not made out for those reasons.

Ground 2

50      By this ground, it was alleged that the Commissioner at first instance erred in failing to give proper weight to its finding that the appellant had a valid reason for “downsizing” its operations, and therefore the appellant was entitled to reduce the number of skippers which it employed.

51      Further, the respondent, it was submitted, could not have any expectation of further offers of employment.  That is not a submission of great merit.  In my opinion, it was open to find that a week’s notice was required to terminate the contract, so that the failure to give any notice at all was entirely unfair and Mr Fowler at least should and could have been allowed to work a shift that day, 19 May 2004, instead of Mr Mick Doyle or Andrew doing them.

52      The point of the finding was not that there was a valid reason for making Mr Fowler’s job redundant.  The Commissioner at first instance found that there was a valid reason.

53      Next, if, by further offers of employment in ground 2.2, it is meant that each day commenced with another offer of employment, then such a notion, for the reasons expressed above, is entirely mistaken.

54      Mr Fowler was employed on a continuing indefinite basis on weekly rosters.  He was deprived of employment on a day for which he had or could have been rostered.  He was therefore entitled to be paid for it.  It was open to the Commissioner to so find.

55      Ground 2 fails for those reasons.

Ground 3

56      In relation to this ground, again, there is clear evidence that there was work available for Mr Fowler until the end of May 2004 because the coffee cruise was still continuing and he could have worked it.  It was therefore open to find, and correct to find, that his loss was eight hours work at $22.00 per hour, namely $176.00 for the lost opportunity to work on 19 May 2004, on the cruise that day, and $500.00 per week until 31 May 2004.

57      For those reasons, ground 3 fails.

Ground 4

58      By that ground it is alleged that there was no basis for the Commissioner’s finding that Mr Fowler suffered any loss of opportunity in the period from 19 May 2004 until 31 May 2004.  There was no error there.  If he had not been dismissed certainly he could have expected to and would more probably than not have worked during that period as it was open to find.

59      For those reasons, ground 4 fails.

Ground 5

60      This ground contains the complaint that the Commissioner at first instance erred in making an award for injury for five different reasons.  First, the Commissioner made no finding that in the principles expressed in AWI Administration Services Pty Ltd v Birnie (2001) 81 WAIG 2849 (FB), that the effects of the dismissal were any more than those ordinarily associated with a dismissal, it was alleged.  I should add that the Commissioner found that the conduct of the appellant in removing Mr Fowler’s name from the roster and not taking any steps to advise him of the dismissal and reasons why and then to send the letter of 18 May 2004 to Mr Fowler informing him his services were no longer required was blatantly procedurally unfair.

61      (I would add that it was not contested before the Full Bench that this was a dismissal and it was clearly a dismissal within the meaning of Metropolitan (Perth) Passenger Transport Trust v Gersdorf 61 WAIG 611 (IAC), and see particularly in relation to casual employment Ryde-Eastwood Leagues Club Limited v Taylor (op cit), applied by a Full Bench of this Commission in Swan Yacht Club (Inc) v Bramwell (FB) (op cit))).

62      The Commissioner also found that this conduct was oppressive, callous and humiliating.

63      The Commissioner went on to find, too, that Mr Fowler had suffered an injury as a result of the manner of his dismissal, emphasising that the callous way in which he was treated caused injury.  It was not disputed that this was the fact.

64      The Commissioner was also satisfied, she said, that Mr Fowler suffered feelings of “shock” within the legal meaning of that word.

65      None of those findings were challenged.  It is quite clear that those findings of fact clearly expressed the Commissioner’s finding that the effects of the termination, both in the nature of the act of termination or acts, and the effect on Mr Fowler were more than those ordinarily associated with a dismissal.

66      There was also, contrary to the submission for the appellant, ample unshaken evidence from Mr Fowler of the effect of what occurred.

67      Next, the order was not punitive at all, nor was it arbitrary.  That much is clear.

68      The Commissioner canvassed the nature of the injury which was an injury towards the lower end of the scale, and the evidence of the acts causing the injury, and the effect on Mr Fowler and made a judgment.  It was not arbitrary and it was certainly not punitive.  Indeed, nothing was said or submitted which would properly persuade me that it was punitive.

69      Speaking for myself, I would add this.  There is something to be said for an opinion that awards in this Commission of compensation for injury are too low, and particularly in cases where there is medical and legal evidence of injury, but not solely.  It might be said that Full Benches of this Commission should consider, if the parties submit it, whether the awards should be increased.  However, that is a matter which it is not necessary to consider on this occasion and can await any submissions which are made another day before there is any consideration of it.

70      This award was not sufficiently judged as being at the lower end of the scale, which the injury was.  I would reduce it therefore by one-third to reflect that it was at the lower end of the scale and award $2,000.00 not $3,000.00.  The discretion, for those reasons, and in that respect alone, I am satisfied, is established to have been miscarried within the grounds laid down in House v The King [1936] 55 CLR 499 because the amount is manifestly outside what a fair exercise of discretion would be.  The Full Bench is therefore entitled to substitute its decision for that of the Commissioner at first instance, on that point.

71      Ground 5 is therefore made out.

FINALLY

72      I would, for all of those reasons, find that the exercise of the discretion at first instance miscarried only in relation to the quantum of the award of compensation for injury and not in relation to loss.  I would find ground 5.4, the second ground 5.4 that is, made out for that reason and uphold that ground.

73      I would otherwise find that there was no miscarriage of the exercise of the discretion at first instance and no appealable error established applying the principles in House v The King (op cit).

74      I would vary the order at first instance by substituting in the second paragraph for the figure “$3,000” the figure “$2,000”.

75      I would otherwise dismiss the appeal.  I would issue a minute accordingly.

COMMISSIONER S J KENNER:

76      The grounds of and background to this appeal are set out in the reasons for decision of the President which I have had the benefit of reading in draft form.  I therefore do not repeat those matters.  I only wish to deal specifically with ground 5, which challenges the learned Commissioner's finding and order to make an award of compensation for injury. The learned Commissioner in her reasons at first instance at par 40, was satisfied that the applicant had suffered an injury as a result of the manner of the termination of his employment.  She concluded that the dismissal of the respondent was effected in a callous way and he had suffered shock accordingly. An award of $3,000 compensation for injury was made.

77      The appellant submitted that there was no substantive basis for the order of compensation for injury in this case.  The thrust of the submission was that the evidence adduced at first instance as to the effect of the dismissal on the respondent, was no greater than that ordinarily associated with a termination of employment and did not warrant any award of compensation.  Moreover, the appellant submitted that in any event, the quantum of compensation for injury awarded was arbitrary and the reasons expressed by the learned Commissioner for awarding compensation were inadequate.

78      It is undoubtedly the case that pursuant to s 23A(6) of the Industrial Relations Act 1979 (“the Act”) the Commission, on a finding that an employee has been dismissed harshly, oppressively or unfairly, may make an order of compensation for injury as long as such an order for compensation, including any compensation for loss, does not exceed six months remuneration of the employee.

79      It is of course necessary, for the Commission to make an order of compensation for injury, for it to be satisfied and to find, that the injury was causally connected to the dismissal.  That is, it must be the manner or act of the dismissal itself, which is causally connected to the injury suffered.  It has been recognised that there is an element of distress connected with every termination of employment and that there must be evidence of particular circumstances to warrant an award of compensation for injury.  For example, in Burazin v Black Town City Guardian Pty Ltd (1996) 142 ALR 144, the Industrial Relations Court of Australia had before it a case in which an allowance for distress was made in an order for compensation, in the case where an applicant was escorted from the employer's premises by police in the full view of other employees.  (See also similar observations in Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8; Timms v Philips (1989) 79 WAIG 1318: Lynam v Lataga Pty Ltd (2001) 81 WAIG 986; AWI Administration Services Pty Ltd v Birnie (2001) 81 WAIG 2849.

80      In this case, the evidence as to the effect on the respondent of the dismissal was brief.  However, simply because the evidence was brief, does not mean that it may not support a finding of injury for the purposes of s 23A(6) of the Act.  Where there is an allegation or claim of injury, then some caution should be exercised.  Whilst not always necessary, it will be of assistance in assessing any such claim if there is independent oral or documentary evidence of the effect of a dismissal on an employee, by way of medical or other evidence to that effect.  On the evidence at first instance, the injury found by the learned Commissioner was certainly at the lower end of the spectrum and would warrant a limited award of compensation.  I agree that to this extent, the discretion of the Commission at first instance miscarried and it would be appropriate to reduce the award by 30% in this case, given the evidence and the findings made.

81      I do not agree with the appellant’s submissions that the award of compensation for injury was arbitrary.  Nor do I accept that the reasons for decision of the learned Commissioner in this respect were inadequate.  There was evidence adduced and a finding made, albeit in brief terms.  Brevity of reasons expressed does not mean however that those reasons are inadequate, as long as the basis for the Commission's decision is apparent: Ruane v Woodside Petroleum (1990) 71 WAIG 913.  I would therefore uphold this ground of appeal to this extent but otherwise dismiss the appeal. 

COMMISSIONER S M MAYMAN:

82      I have had the advantage of reading the draft reasons for decision of His Honour, the President.  I agree and have nothing further to add.

THE PRESIDENT:

83      For those reasons, the order at first instance is varied and the appeal is otherwise dismissed.