WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES IAN PHILLIP BUTLER

CLAIMANT

-v-

Starpac Corporation Pty Ltd

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE W.G. TARR

HEARD Wednesday, 5 July 2006, Wednesday, 26 July 2006

DELIVERED Wednesday, 26 July 2006

CLAIM NO. M 26 OF 2006

CITATION NO. 2006 WAIRC 05222

CatchWords Skin classer; Termination of Employment, Introduction of Change and Redundancy General Order 2005; Redundancy, Payment of Notice; Sick Leave; Rostered Days Off.

Legislation  Industrial Relations Act 1979.

Termination of Employment, Introduction of Change and Redundancy General Order 2005.

Minimum Conditions of Employment Act 1993.

Wool, Hide and Skin Store Employees’ Award No 8 of 1966.

Result Claim allowed in relation to payment for rostered days off.  Otherwise dismissed.

Representation 

Applicant Mr I P Butler appeared in person

Respondent Mr G Pugh appeared for the Respondent

REASONS FOR DECISION

(These reasons are the reasons delivered extemporaneously by His Honour which have been extracted from the transcript of proceedings and edited.)

Background

1         The Claimant commenced employment with the Respondent as a Skin Classer in or about November 1999.  After some five years service he was terminated on 28 December 2005.  By this claim, lodged on 28 February 2006, the Claimant seeks the payment of the balance of his entitlement to a redundancy payment pursuant to the Termination of Employment, Introduction of Change and Redundancy General Order 2005, a General Order issued by the Western Australian Industrial Relations Commission on 1 June 2005 to take effect from 1 August 2005.  The Claimant also seeks, pursuant to the provisions of the Wool, Hide and Skin Store Employees’ Award No 8 of 1966, the payment of one week’s pay in lieu of notice and payment for two rostered days off (RDOs) which were paid to him when he was entitled to paid sick leave.

Determination

2         It is to be noted that the provisions of the General Order under which payment for redundancy is claimed is intended to apply in the case of a bona fide redundancy. I have heard the evidence of the Respondent that for some time there has been some dissatisfaction with the performance of the Claimant, although the Claimant takes issue with that evidence.  I have heard from Mr Pugh, who is a Director of the Respondent, and he has explained that it was not easy to speak to the Claimant about his performance and this is often a problem where there is some breakdown in the relationship between employee and employer.  It seems to me to be unsatisfactory that the Claimant was advised by telephone of his termination by Ms Kitchen, the Administration Manager of the Respondent.  I would have thought that it would have been more appropriate for the Respondent to make contact with the Claimant at work and give him notice in person, but for the reasons that Mr Pugh has set out that did not happen.

3         On the separation certificate provided to the Claimant it does indicate that the termination occurred because of a shortage of work or a redundancy.  Ms Kitchen said that it was she that completed that form and she claims to have made a mistake.  It is not uncommon for employers to try and soften the blow for employees by not describing on the separation certificate that someone was dismissed because of misconduct or unsatisfactory work performance.  She said she made a mistake, and the evidence before me is that the Claimant was dismissed because of his lack of performance and not due to a redundancy.

4         It seems to me credible evidence that there is a shortage of employees in this industry and that it is difficult to get employees, and had the Claimant’s performance been up to the standard required, then he would have still been there.  That is what I am picking up from the evidence.

5         The Claimant has not taken issue with the fact that he was telephoned by Ms Kitchen and told that he was fired.  They were the words that she said she used and the Claimant has not challenged that.  The Claimant’s response was, "I've been expecting it".  There was no discussion.  I think the employer was remiss in not documenting any unsatisfactory performance, but that has not been done and some reason has been given for that.

6         It does seem on the evidence before me that the Claimant was dismissed, not because there was no work for him but because his performance was not up to the standard required.  That is the evidence I have heard from the employer, from Ms Kitchen and from Mr Darren O'Donnell, the Manager of Perth Hide & Skin Exports, who employs the Respondent to do the work that it does.  Eighty per cent of the work done by the Respondent is for Perth Hide & Skin Exports.

7         Mr O'Donnell has given evidence that there was a percentage increase in the hides that were of the better standard when the Claimant stopped doing classing work.  He was taken off that because it would seem that his work was not up to the standard that was required.

8         I think I can only come to one conclusion, and that is that the Claimant was not dismissed as a result of a bona fide redundancy.  The Claimant was dismissed because his performance was not up to scratch, so that part of the claim must fail.

9         The claim in relation to the payment of one week’s pay in lieu of notice must fail because it is apparent, on the evidence, that that payment has been made to the Claimant.

10      It does seem on the evidence presented by the Claimant in relation to the RDOs that there may be some merit in his claim.  It does seem as though the Claimant should have been entitled to sick leave for the 4 days in question.  The witnesses from the Respondent have not brought any evidence which supports what they are saying in relation to that, so I am prepared to make an order in relation to the two days payment claimed.

11      Accordingly, there will be an order that the Respondent pay to the Claimant the sum of $280, including tax of $58, and the claim will otherwise be dismissed.

WG Tarr

Industrial Magistrate