100315825

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES PETER MAINDOK

CLAIMANT

 -v-

 CABLETECH ELECTRICAL PTY LTD

RESPONDENT

CORAM MAGISTRATE WG TARR IM

DATE THURSDAY, 22 NOVEMBER 2001

CLAIM NO/S M 124 OF 2001

CITATION NO. 2003 WAIRC 07863

_______________________________________________________________________________ 

Representation

Claimant Mr C Young as agent

Respondent Mr E Rea as agent

_______________________________________________________________________________

Reasons for Decision

HIS WORSHIP: These are the reasons for my decision.

1         The action before me is one brought by the Claimant pursuant to the provisions of section 50 of the Workplace Agreements Act 1993.  Section 50 provides for a party to a workplace agreement, where there is a claim that there has been a breach of such agreement, to bring an action before an Industrial Magistrate's Court.

2         There is no issue with the facts that the Claimant was employed by the Respondent and was a party to a workplace agreement (tendered as exhibit B). There is also no dispute that the Claimant's employment was terminated on 3 March 2001 during a telephone conversation with Mr Lawrence Bensusan, a director of the Respondent company.  It was the Claimant's case that he was dismissed and he has not been paid his entitlements pursuant to the workplace agreement.  His statement of claim particularises those entitlements as: -

• $695.00 owing for normal working hours;
• $363.00 owing for holiday pay; and
• $800.00 owing for one week's pay in lieu of notice.

comprising a total amount of $1858.00.  The particulars also include claims for pre-judgment interest, penalties pursuant to section 83(6) of the Industrial Relations Act 1979 and costs.

3         The Respondent concedes that the Claimant is entitled to the sums of $695.00 and $363.00, but denies liability for the amount of $800.00, maintaining that the Claimant resigned, and in such circumstances is not entitled under the workplace agreement to pay in lieu of notice.

4         The Claimant was employed by the Respondent as an electrical mechanic from August 2000 until termination on 3 March 2001.  In that capacity he was provided with a van, uniform and other equipment.  He was required to carry out electrical work assigned to him.  A percentage of that work was assigned by way of a 2-way radio fitted to the van.

5         As I understand the evidence he was required to respond to work requests as allocated, and report each morning when he arrived at his first job.  I have heard evidence of the circumstances which led to a telephone discussion between the Claimant and Mr Bensusan.  It is the Claimant's evidence that he did not want to work after 6 pm on any Friday, as he had an obligation to his daughter on that day.  He claimed to have had an understanding with the respondent in that regard.

6         On Friday, 2 March 2001, at some time before 6 pm, the Claimant had finished his last job, which was south of the river, and was driving home to Duncraig on the Freeway.  His evidence is that at about 5.50 pm he received a request to do another job.  He refused that request, and two further requests made over the radio.  His evidence was that he said "No" each time.  His claim is that there was an agreement that he knocks off at 6 pm on Fridays.  He arrived home about 1 hour later.

7         The Claimant further claims that he was stung by a wasp and was in terrible pain.  It is his evidence that at about 2 am on Saturday, 3 March 2001 he took a painkiller and slept until 12 noon on the Saturday.

8         He obviously did not go to work that day as he was required to do, and made no contact with his employer.  It was his evidence that he knew Mr Bensusan would telephone him some time.  That telephone call was answered by the Claimant some time late in the afternoon on Saturday, 3 March 2001.

9         It is the Claimant's evidence that in response to Mr Bensusan's request for a reason for not contacting the employer to let them know he would not be at work on Saturday, he responded by saying: "You know I don't like working Saturdays".  It is then that the Claimant says that

Mr Bensusan told him he was sacked for gross misconduct.  It is not in dispute that the Claimant responded some time later by telling Mr Bensusan what he could do with his job in the manner given in evidence.

10     Mr Bensusan denies that he sacked the Claimant.  He said he was concerned that the Claimant did not turn up for work on that day and had not telephoned with any reason.  Until then he had considered the Claimant to be a valuable employee, and there had been no problems in the past.  In fact he described him as a model employee.

11     I must find the attitude and behaviour of the Claimant at the time quite remarkable, and it seems consistent with him being, as he said, fed up with the job because of the hours he was required to work, and in particular, the incident where he was requested to work after 6 pm on Friday 2 March 2001.

12     It is my view that he certainly did not behave as one would expect a responsible employee should. There was no mention of the wasp sting when Mr Bensusan asked why he had not gone to work or contacted the employer.  There has been no medical evidence or other evidence supporting the claim.  I am left wondering why he did not offer that reason at the time, instead of responding in the way he did.

13     I accept as credible the evidence of Mr Bensusan that he wanted to pick up the van, money, EFTPOS machine and other company equipment the following day, but accepted the time dictated by the Claimant.

14     As I have mentioned, the fundamental issue in this action is whether the termination was a dismissal by the employer, or a resignation by the Claimant, and I must say that that is not conclusive on the evidence before me.  The evidence of both Mr Waltham and Mr Low does not assist me. Their admission that they did not hear all the conversation between Mr Bensusan and the Claimant, and that therefore Mr Bensusan could have told the Claimant he was sacked, adds absolutely nothing.  Their evidence is that they did not hear it said.

15     In actions like the one before me, the Claimant has the onus of proof to satisfy me, on the balance of probabilities, as to each and every element of his claim.  I am left with two versions of events, the Claimant's word against that of Mr Bensusan.  I have been asked to consider the arrow put on clause 12 of the copy of the workplace agreement (see exhibit F).  Mr Waltham strongly denied that it was he who did that, and I am not able to determine how it was done, or by whom.

16     When I take into account the reaction of the Claimant in refusing work on the Friday night, and the effect that request had on him; the disregard he had for what I would have thought was a reasonable obligation to contact his employer when he was not going to work on the Saturday; his response to a reasonable request from his employer for an explanation on Saturday afternoon, and the evidence in relation to the return of, and damage to, the Respondent's van, I have difficulty concluding that I should accept the Claimant's evidence in preference to that of the Respondent.  That difficulty is compounded when the Claimant admits that he was fed up with the job, in particular the hours he was required to work.

17     I therefore find that the Claimant has not satisfied me to the required standard that he was dismissed from his employment with the Respondent, and his claim for one week's pay in lieu of notice must fail.

18     It seems to me that I should make orders by consent in relation to the payment by the Respondent of the $695.00 relating to normal hours worked and $363.00 for holiday pay due.  I would be prepared to make an order in relation to interest on those sums.

19     The issue of costs has been raised and, pursuant to section 83(3) of the Industrial Relations Act 1979, the Court can only make an order for costs where a defence is frivolous or vexatious.  I could not find in this case that there was no merit in the defence.  Accordingly I am not able, under the legislation, to make any order for costs.

20     As to the issues in relation to the damage to the van and the return of the uniform being part and parcel of the application for costs, I make no finding in relation to the evidence regarding those two matters.

21     My orders will be that the claim in relation to pay in lieu of notice is dismissed and that, by consent, the Respondent shall pay the Claimant $1058.00 plus interest fixed at $40.00, and reimburse the Claimant the amount of $40.00 being the cost of making the claim.

22     It is the intention of every workplace agreement, and in my view there is a moral obligation, that an employee should be paid his or her entitlement at the conclusion of their employment.  It is a fundamental right that an employee has.  There are all sorts of reasons why that should be the case.  Employees have families and commitments, and in my view it is not for an employer to arbitrarily withhold money of that nature which is due.

23     Having said that, in this case there were complications and the complications came about by the actions of the Claimant.  For whatever reason, there was damage done to a vehicle, and although legally under the workplace agreement the provisions of the schedule thereto did not apply, there was, as I said, action taken by the employer, which was contributed to by the employee, in my view.  Having said that, it is my view that it is still appropriate that I impose a penalty.  That is the intention of the legislation.

24     I am aware that there is an outstanding matter, and that is the damage to the vehicle.  I would like to put an end to the matter now so that the parties have nothing further to do with each other.  I had in mind a fine of $500.00, which I think is reasonable.  What I am prepared to do is discount that fine by $150.00, which would be the Claimant's share of the cost of repairing the damaged window.  I think if I do that, it would be fair and equitable, and that should put an end to any further court action for recovery of the amount outstanding or claimed in relation to the damage to the vehicle.

25     By way of penalty, for the reasons I have given, there will be an order that the Respondent pay $350.00, and that penalty is to be paid to the Claimant.

WG Tarr

Industrial Magistrate