ELECTRICAL CONTRACTING INDUSTRY AWARD NO R 22 OF 1978

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY,INFORMATION, POSTAL, PLUMBING, AND ALLIED WORKERSUNION OF AUSTRALIA, ENGINEERING & ELECTRICAL DIV.

CLAIMANT

-v-

GJ MCBRIDE, NETSPARK ELECTRICAL PTY LTD

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

DATE THURSDAY, 24 FEBRUARY 2005

FILE NO. M 231 OF 2004

CITATION NO. 2005 WAIRC 01575

REPRESENTATION 

CLAIMANT MR L GANDINI (OF COUNSEL) INSTRUCTED BY CHAPMANS, BARRISTERS & SOLICITORS

RESPONDENT MR TCP CROSSLEY-SOLOMAN OF CROSSLEY SOLOMAN INDUSTRIAL RELATIONS CONSULTANTS

REASONS FOR DECISION

Background

1         The Claimant is an industrial organisation registered pursuant to Part II Division 4 of the Industrial Relations Act 1979.  The Respondent is a company incorporated under the Corporations’ Laws of the Commonwealth whose principal business is that of electrical contracting.  The Respondent employed Grant Blake as an Electrical Installer from on or about 22 October 2001 until 28 June 2002.  The Electrical Contracting Industry Award No R 22 of 1978 (the Award) issued by the Western Australian Industrial Relations Commission (the WAIRC) bound the employer and Mr Blake, whose classification as an Electrical Installer is contained within subclause (2)(a)(iii)(aa) of the First Schedule – Wages of the Award.

Claim

2         The Claimant alleges that over the period of employment the Respondent failed to pay Mr Blake the following:

Travel Allowance in accordance with clause 20(2)(c) of the Award.  Amount claimed $950.95.

Grievance Procedure and Special Allowance (hereinafter referred to as the Grievance Special Allowance) in accordance with clause 27(3)(a) of the Award.  Amount claimed $838.00.

Footwear Allowance in accordance with clause 6(1) of the Award.  Amount claimed $65.48.

Annual Leave Loading in accordance with clause 23(3)(c) of the Award.  Amount claimed $294.65.

Redundancy in accordance with clause 38(2) of the Award.  Amount claimed $1,008.00.

Annual leave in accordance with clause 23(5)(a) of the Award.  Amount claimed $1,266.95.

3         Accordingly the Claimant seeks to recover the total of the aforementioned in the sum of $4,424.03 allegedly underpaid together with interest thereon plus costs.  It also seeks the imposition of penalties.

Response

4         The Respondent submits that the Claimant is barred from bringing this claim by virtue of a Deed of Settlement entered into by the parties in November 2002, which inter alia settled a claim made by the Claimant in the WAIRC alleging that Mr Blake was unfairly dismissed.

5         In the alternative the Respondent contends that Mr Blake was, during the course of his employment, paid above the prescribed award rate for his classification and that such over award payment should be “offset” in accordance with what was said by Anderson J in James Turner Roofing Pty Ltd v Christopher Lawrence Peters 83 WAIG 427.  The Respondent says that Mr Blake was, during the relevant period, paid more than he would have been entitled to under the Award and is therefore not entitled to that which the Claimant seeks.  The Respondent says that during the material period that Mr Blake was a permanent employee and he was only entitled to an amount of $608.66 per week comprised of ordinary hours, Tool Allowance, Licence Allowance, Grievance Special Allowance and Boot Allowance.  He was however paid $760.00 per week comprised of the following components:

38 hours @ $18.00 per hour (all in)                                   $684.00

38 hours @ $1.00 per hour – Special Allowance                  38.00

38 hours @ $1.00 per hour – Company Allowance              38.00

                                                                                           $760.00

6         Whilst a casual employee (22 October 2001 to 28 April 2002) Mr Blake was paid $18.00 per hour plus a twenty percent casual loading bringing his hourly rate to $21.60.  A casual worker under the Award was, however, only entitled to $720.00 per week inclusive of allowances.

7         The Respondent says that during the course of his employment Mr Blake was paid $4,458.40 in excess of his Award entitlement and that therefore the Claimant is not entitled to recover that which is sought.  The Respondent submits that given the circumstances the claim ought to be considered as frivolous and vexatious particularly in light of the James Turner Roofing Pty Ltd decision (supra).  It accordingly seeks that costs be awarded against the Claimant.

8         The Respondent contends that because Mr Blake was dismissed for “misconduct” he is precluded by virtue of section 26 of the Minimum Conditions of Employment Act 1993 (the MCEA) and clauses 38(1) and 23(3)(d) of the Award respectively from receiving a redundancy payment, annual leave entitlement and annual leave loading.  The Respondent also relies on the authority of Shire of Esperance v Mouritz (1991) 71 WAIG 891 in rejecting the claim for annual leave and annual leave loading.

Evidence

Claimant

9         The Claimant called two witnesses Grant Blake, the subject employee, and Peter John Carter, an organiser employed by the Claimant.  The Claimant also seeks to prove its claim based on the admissions made by the Respondent in its “Answer and Counter Claim” filed 30 September 2004.

10      Mr Carter’s evidence addressed the relevant pay rates and allowances payable pursuant to the Award.  Mr Carter gave evidence concerning his knowledge of the Respondent’s operations.  Further he was taken to testify about the meaning of certain Award provisions including the meaning of the term “construction”.  In my view Mr Carter’s evidence was of limited value.  His evidence concerning the meaning of certain Award provisions is of no value and is, with respect, irrelevant.  In the end the Award speaks for itself and it is for the Court to construe the Award having regard to the ordinary rules of construction.

11      Mr Blake testified that he was employed by the Respondent from late 2001 until late June 2002.  After responding to a job vacancy advertisement placed in the local newspaper by the Respondent Mr Blake was interviewed by the Respondent’s Managing Director and its then General Manager Mr Garrie Taylor.  Mr Blake testified that although he recalls discussing his rate of pay at interview he cannot now recall with any degree of precision exactly what was discussed (see transcript page 100).  He came away from the interview with the understanding that the hourly rate payable was $18.00.  Following the interview he was informed that he had been successful in his application and was offered a job to start the following Monday.  Mr Blake does not recall ever being told of what the hourly rate comprised.  He could not recall the terms “all inclusive” or “inclusive of all allowances” being used.  Initially in his evidence in chief Mr Blake said there had been no discussion about his casual status but later said that he was told that there was to be a one month probationary period before he could become a full time employee.  Upon appointment he was issued with a uniform and boots.  He was required to wear safety boots whilst carrying out his duties.

12      During the period of his employment Mr Blake worked on Western Power’s Retro Underground Services Project (RUGS) at Mount Lawley.  The project involved the removal of overhead power lines, the substitution of underground cabling and the creation of underground mains, which necessitated him digging on some occasions.  Additionally Mr Blake says he carried out maintenance and installation work not associated with RUGS.  Mr Blake testified that there was never any industrial disputation on the job whilst he worked for the Respondent.

13      Mr Blake testified that he was paid the amounts stated on the pay slips (exhibit 1).  They indicate that he was paid at the rate of $21.60 per hour, which included a twenty percent casual loading for the period from commencement until 28 April 2002, and thereafter at $18.00 per hour.

14      After two or three months of employment with the Respondent, the Claimant was permitted to take home his employer’s vehicle which enabled him to drive directly to and from the work site without the need to go to the Respondent’s depot.  The vehicle was supplied subject to him keeping the same in good order.

15      In late June 2002 Mr Blake was instructed to go in to the Mount Lawley office to speak to Mr McBride.  He said that the request that he attend the office came as somewhat of a surprise.  He testified that following his arrival at the office he met with Mr McBride who told him:

“I’m going to have to let you go, Grant, because it’s the end of the financial year and we’re running out of work.  I would like you to return the uniforms that we have issued you and empty out all of the vehicle.”

16      Following the emptying of the vehicle an audit was done to ensure that all items from the vehicle had been returned.  Thereafter he was driven back home.  Prior to leaving that day he asked if he could have a reference and was told he could.  At that time he also requested the provision of a separation certificate so that he could immediately claim social security payments.

17      Mr Blake testified that during that meeting with Mr McBride there was never any discussion concerning the termination of employment occurring by reason of misconduct.  Mr McBride certainly did not raise any issue of pornographic material being brought into the workplace as a reason for his termination.  Mr McBride was neither angry nor aggressive during the meeting.  There was no indication of disfavour.  Furthermore Mr McBride did not raise at that time or any preceding time any concern about Mr Blake’s work performance.  It had never been suggested that his work was substandard.  He specifically denied being told by Mr Taylor or Mr Stokes that his work was substandard.  Indeed the Respondent through its officers had only ever expressed satisfaction with his work.

18      With respect to pornographic material he said that on one occasion he found some “dirty magazines” in the vehicle supplied to him by his employer.  Mr McBride who witnessed Mr Blake looking at the magazines asked to have a look at them.  After having viewed them himself Mr McBride chuckled and then said:

“Get rid of them . . . there’s apprentices around here.”

19      Mr Blake said he proceeded to put the magazines in the bin and heard no more about them.

20      Mr Blake next testified about an incident at work when he reversed a company vehicle and caused an accident whereby property was damaged.  He said that he was never cautioned or disciplined for that.

21      With respect to the separation certificate he reconfirmed that he asked for one and was given the same about a week or two after termination.  He took the same to Centrelink to facilitate the payment of unemployment benefits.  At the time of the hearing he was unable to produce a copy and had been unable to procure a copy from Centrelink.  He testified that the separation certificate indicated on its face that he had been terminated on account of lack of work rather than any reason aligned to misconduct. Mr Blake admitted however that the certificate was issued by the Respondents’ administrative staff and without Mr McBride’s knowledge.

22      Mr Blake testified that following his termination Mr Taylor gave him a reference.  That occurred on or about 1 or 2 July 2002.  Thereafter he spoke with Mr Taylor concerning obtaining work within the electrical installing industry.  He said that at no time did Mr Taylor express any concerns about Mr Blake’s ability.  Their relationship continued to be amicable.  He certainly did not hold any grudge against Mr Blake.

23      Mr Blake testified also that he was part of a coterie group at the North Melbourne Football Club, which is a vice president’s group.  His involvement in that group necessitated him being away on some weekends and the odd weekday.  He said that his employer was aware of his commitments in that regard and did not have a problem with it.  He was never spoken to about taking days off for such purposes.

24      When cross-examined Mr Blake denied that he remained a casual for longer than four weeks at his request because it best suited him on account of his football and financial needs.  He said that during induction he was informed that he would be placed on probation for a month and paid at casual rates.  He denied that he wanted to remain a casual employee for longer than the standard period of four weeks.  He said that he did not have an input as to how long he stayed as a casual.

25      With respect to his pay rate all he could recall was being informed that he would be paid $18.00 per hour.  Further he said that he could not recall any particular discussions during induction about the vehicle policy, the issue of driving company vehicles and grievance procedures.  When prompted however Mr Blake recalled being told that any grievances should be taken up with the supervisor either directly or at a toolbox meeting.  Mr Blake admitted however having contacted Worksafe relating to safety concerns on site. 

26      Mr Blake was next cross-examined about his work performance.  In that regard he denied ever having been spoken to by any superior about his work performance.  He said that on occasions he was required to re-do jobs but they were not necessarily related to any error on his part but rather because the job was not done correctly as a collective group.  There was only one occasion that he was recalled to re-do his own work but he was never pulled up to be told that his work was substandard.   He said also that aspects of his work included digging trenches.  He conceded that the majority of his work was related to the supply of electricity to existing residential premises.

27      When questioned about the pornographic material allegedly taken by him into the workplace, he denied having done so. He said that the magazines had been found in the vehicle supplied by his employer and the camcorder taken onto site by him depicted footage of a football game and certainly did not depict any pornographic images.

28      With respect to his meeting with Mr McBride on 28 June 2002 Mr Blake denied that he was told of specific matters which, in the employer’s view, amounted to misconduct and which have in this hearing been cited as the basis for the termination of his employment.  In that regard he denied that he was told that his dismissal resulted from amongst other things a failure to comply with the vehicle policy, for promoting pornographic material to minors and for using bad language.  He specifically denied having told Mr McBride to “fuck off” just a few days prior to termination. 

The Respondent

29      The Respondent in its defence of the claim called five witnesses.  They were Gregory McBride, the Respondent’s Managing Director; Garrie Taylor, its General Manager; Ben Stokes, a supervisor, which it employs, and apprentices Blake Harding and Ben Archer.

30      The apprentices were the first to give evidence.  Blake Harding testified that he worked for the Respondent between May 2001 and February 2002.  During that period he worked with Mr Blake from time to time.  On 19 March 2002 he turned eighteen years.  He testified that he saw pornographic material in Mr Blake’s van four or five times.  They viewed pictures together and talked about them.  He did not see any pornographic videos at the workplace.  When cross-examined Mr Harding agreed that he was not offended by what he saw.

31      Ben Archer testified that he worked for the Respondent as a labourer for a year and thereafter as an apprentice for two years.  He turned eighteen years of age on 17 February 2002.  He said that Mr Blake was his tradesman.  Mr Archer said that Mr Blake brought pornographic material onto the worksite, which was viewed by workmates.  There were “pornographic flicks” on the camcorder that Mr Blake brought in showing, amongst other things, a bestiality scene.  There was no sporting activity depicted in what he saw.  Mr Archer conceded under cross-examination that the viewing of pornographic video occurred only once and in any event for two or three minutes.  A number of workmen viewed the video.  He said that Ben Stokes, the supervisor, was one of those who were around at the time and that he “kicked up a stink about it”.

32      Mr Gregory James McBride testified that he is the Managing Director of the Respondent, a position that he has held for the last five years.  He has been an electrical contractor for twenty two years.  He said that the Respondent mainly carries out work for government and local authorities including Western Power.  Such work is carried out in both domestic and commercial settings.  He said that at one point the Respondent employed up to fifty or sixty employees including twenty-five electricians.

33      Mr McBride testified that he first met Mr Blake in 2001.  He believes that he interviewed him at that time but does not now have a specific recollection of the interview.  He does not recall any discussion concerning wages.  He said once an electrician is interviewed and an offer of employment is made the employee is taken through an induction process which includes an explanation of the work, pay details and company rules.  Mr Taylor would normally carry out the induction.

34      Mr McBride said that it was the usual situation for employees to be taken on as casuals for the first month and thereafter to be appointed on a full time basis.  However in Mr Blake’s case he wanted to remain as a casual employee on account of his commitments with the North Melbourne Kangaroos Football Club.  Mr McBride acquiesced in allowing Mr Blake to remain as a casual for longer than the usual period.  Mr McBride said that were a number of ongoing discussions held concerning Mr Blake’s status however Mr Blake was anxious to retain his casual status on account of his football commitments and his need to receive a higher weekly income.  Although paid as a casual after the first month Mr Blake was treated as a permanent employee.

35      Mr McBride testified that Mr Blake was paid $18.00 per hour, which was inclusive of award allowances but exclusive of overaward allowances.  He said that the $18.00 per hour rate was well above what the Respondent was required to pay pursuant to the Award.

36      Mr McBride also testified that the Respondent did not undertake construction work although for the purpose of complying with Western Power requirements safety boots and hard hats were worn as would be the case on a construction site.  He said that Mr Blake was not involved in construction and had no need to dig trenches.

37      Mr McBride also raised the issue of the motor vehicle policy in evidence in chief.  He said that he had to speak to Mr Blake concerning his manner of driving on account of an accident that Mr Blake had whilst reversing and also on account of the speeding infringements that he received.

38      Mr McBride said that he had not spoken to Mr Blake concerning his work performance other than making some brief comments to him to lift his game.  It was left to Mr Taylor and Mr Stokes to speak to him concerning his inadequate performance.

39      Apart from work performance issues, Mr Blake was spoken to about his bad language at the worksite.  Indeed it was the way that he spoke to Mr McBride, which was, in Mr McBride’s eyes, the catalyst for his dismissal.  Mr McBride said that he challenged Mr Blake concerning a job that he had carried out in Selby Street, Subiaco.  Mr McBride was of the view that the job was incorrectly done.  When told of that Mr Blake insisted that the job had been carried out correctly and told Mr McBride to “f… off”.  Mr McBride said that he “lost it” as a result of Mr Blake’s stance.  He said “that was it for him”.  He decided not to dismiss Mr Blake at the worksite but went back to Mr Taylor to put a case together for his dismissal.

40      He said that he knew Mr Blake was a union member and accordingly wanted, using Mr Taylor’s terminology, “to put the ducks in a row”.  That is, he wanted to gather material to justify Mr Blake’s sacking.  Mr McBride said he wanted to get a file together to demonstrate that there were enough grounds to sack Mr Blake.  There had been problems with Mr Blake’s mistakes, in particular, but it was his ultimate act of defiance in telling Mr McBride “f… off” that led to his termination.  That incident at Subiaco occurred on or about the Tuesday preceding Mr Blake’s dismissal on Friday, 28 June 2002.  Mr Blake was advised of his dismissal in a meeting with Mr McBride.  There was no-one else present at that meeting.  Mr McBride testified that he told Mr Blake that he would have to “let him go” because of the mistakes he had made, the fact that he had taken pornographic material onto site and because he had told Mr McBride to “f… off” which could not be tolerated.  He denied telling Mr Blake that the termination was due to a lack of work.  Indeed the Respondent had plenty of work as at that time.  He further denied informing Mr Blake at termination that he was happy with him.  Quite to the contrary he told Mr Blake he was not happy with his work performance and his attitude.  Notwithstanding that, he paid Mr Blake a week’s pay in lieu of notice.  However he did not pay him an incentive allowance for his last week’s work.  Mr McBride said that Mr Blake did not ask him for a reference and that a separation certificate was not issued.

41      When cross-examined Mr McBride conceded that the hourly rate paid was $18.00 per hour, which included Footwear, Licence and Tool Allowance.  He was next cross-examined about Mr Blake’s duties.  He said in that regard that Mr Blake was required to connect underground power to existing dwellings by drilling a sixty-three millimetre hole in the exterior wall plate two courses up and then feed the wiring up the wall and into the roof space of the dwellings.  The roof space could be accessed either internally or externally depending on the circumstances and the type of roof involved.  Once having accessed the roof space the appropriate connection would then be made.

42      Mr McBride was also cross-examined about the vehicle policy and, in particular, the reversing policy.  He said that he instituted the reversing watch requirement for safety reasons to ensure that property was not damaged and that people were not hurt.  The policy was necessary in light of the very cramped situation in the yard.  He agreed that no one had been sacked for misconduct for being in breach of that policy.

43      He was next taken to the issue of pornographic material brought onto the worksite.  Mr McBride said that the introduction of pornographic material into the workplace was a serious matter and one, which constituted a “sackable” situation, particularly if the material was shown to apprentices.  He conceded however that Mr Blake had not been sacked when he had brought such material to work and shown the same.

44      Mr McBride said that he always strived to improve the performance of the Respondent’s workers.  Any work, which was not up to standard, would be brought to the worker’s attention so that rectification could occur.  Those who did not want to “listen”, such as Mr Blake, would be sacked.  Over time Mr McBride has had to terminate the employment of employees for poor performance and for misconduct.  Usually poor performance of itself would not be the basis for sacking unless the employee could not get grips on what was required.  Mr McBride went on to say that in his five years with the Respondent he has had disagreements with tradesmen about how things were to be done.  However he has not sacked any tradesman because of such disagreement.  Sometimes he has learnt something from such circumstances.  He said also “he did not always do things his way”.  The fact that someone might disagree with him as to how a job was to be done did not amount to misconduct.  However it was quite something else for any employee to be defiant.  In this instance after Mr Blake had sworn at him in defiance he contacted Mr Taylor by telephone and told him “get rid of him” (Mr Blake).

45      It was suggested to Mr McBride that he has concocted his account of what was said at termination to justify his failure to pay entitlements.  In reply he said that Mr Blake was sacked because Mr Blake had told him to “f… off”, because his work was “not up to scratch” and because Mr Blake defied him.  He said that Mr Blake was stupid for saying what he said to him.  He said that although he may not have specifically used the word misconduct on the day of termination, Mr Blake would have been left in no doubt as to why he had been terminated.  The termination meeting was of short duration and took no more than five minutes.

46      Mr McBride was next taken to the Award and he was asked whether he was familiar with it.  He said he was.  He was asked why he paid out Mr Blake his annual leave entitlement on termination given that clauses 19(6) and 23 of the Award enabled non-payment of accrued annual leave in cases of termination by reason of misconduct.  He said in response that he paid it because he thought he had to pay.  When re-examined Mr McBride said irrespective of whether or not Mr Blake was paid his annual leave, the situation nevertheless remained that he had been terminated for misconduct.

47      Ben Stokes, an electrical supervisor employed by the Respondent, was called to testify.  He is a qualified electrical mechanic and at the material time was a leading hand.  He supervised Mr Blake.  He said that he worked with Mr Blake for nine or ten months.  He said that Mr Blake’s work “left a bit to be desired”.  He was not up to scratch and that he had to on a number of occasions speak to him concerning the quality of his work.  Some of his work did not comply with the “standard wiring rules”. He also had to speak to him about his bad language. Mr Blake’s performance was the subject of discussions with Mr McBride and Mr Taylor.

48      Mr Stokes also testified that on one occasion he reprimanded Mr Blake for bringing pornographic material to work.  He saw him showing a film clip depicting bestiality on his camcorder, which was being shown to workmates.

49      When cross-examined Mr Stokes admitted that on the occasion that he reprimanded Mr Blake he did not see what else the videotape showed.  Further he conceded that he never recommended that Mr Blake be sacked.  Additionally he had not seen Mr Blake breach the reversing policy.  Finally he said that he had only on three or four occasions heard Mr Blake use inappropriate language.

50      The final witness called was Mr Garrie Taylor.  Mr Taylor no longer works for the Respondent.  At the material time it was his duty as General Manager to oversee the Respondent’s operations.  Although he had the power to hire and fire employees, he would not do it without first consulting with Mr McBride.

51      He testified that he was involved in the hiring of Mr Blake.  He was initially involved in reviewing his application and subsequently undertook his induction.  He said that he would have discussed with Mr Blake the pay rates and informed him that he was an award employee.  Further he would have discussed company policies.  He produced the induction record which shows that he discussed with Mr Blake specific issues such as inter alia the rate of pay, allowances and various leave entitlements.  He said that he also spoke to Mr Blake concerning the maintenance of company vehicles and, in particular, the reversing policy that applied.

52      During the course of Mr Blake’s employment he raised concerns about Mr Blake’s work performance.  His concerns about such work performance are reflected in what he said in a letter to the Chamber of Commerce and Industry dated 11 October 2002 (exhibit 2).  In essence he said therein that Mr Blake’s work was substandard.  Several of his jobs had to be reworked.  In addition to his poor workmanship, Mr Blake had failed to obey vehicle reversing policy.  Any time he was reprimanded for such failures his response was flippant.  Furthermore Mr Blake’s use of bad language was a source of ongoing concern.  Also of concern was Mr Blake’s introduction of pornographic material onto site.   However that was never the subject of any discussion between them.  It was because of those matters that he had recommended Mr Blake’s dismissal.

53      Although Mr Taylor was not directly involved in the actual termination he was aware that Mr Blake had not asked for a separation certificate.

54      Subsequent to Mr Blake’s termination Mr Taylor left the Respondent to set up his own business.  He said that at no time did he offer Mr Blake employment in his own business.  He had little contact with him subsequent to termination.  On one occasion he met Mr Blake quite by chance at a football match.  On another occasion Mr Blake telephoned him seeking employment.  He refuted the suggestion that he had asked Mr Blake to be his nominee for his business.

55      Mr Taylor testified that in the first two or three months of his employment that Mr Blake remained casual at his choosing because it best suited his football commitments and because he received more cash in hand.  Mr Taylor testified that the Respondent was not involved in the construction industry.  Further he said that Mr Blake was not required to dig holes or trenches and that his work was never outside the boundaries of domestic premises.

56      Mr Taylor told the Court under cross-examination that there was a very real safety concern arising from vehicles reversing out of the yard.  There had been some near misses and accordingly there was a requirement for a spotter to be present assisting the reversing driver.  Despite that those persons involved in the near misses were not dismissed for misconduct on account of their actions.

57      Mr Taylor reaffirmed that Mr Blake’s termination was discussed with Mr McBride on several occasions and indeed in the few days prior to his termination.

58      Mr Taylor was cross-examined concerning his preparation of exhibit 2.  He confirmed that he prepared the same in the knowledge that Mr Blake was taking action against the Respondent.  Reflecting upon what he said in exhibit 2 he said there was nothing positive to be said about Mr Blake.  He certainly would not employ Mr Blake given his lack of performance.  He was the last person he would be pleased with or give a job to.

59      Mr Taylor was then shown what now is exhibit 7, being a reference he prepared for Mr Blake.  He conceded that the document was a copy of the reference that he had prepared and signed.  The reference, he concedes, is incorrectly dated 2 July 2001.  It should read 2002.   He created the document at his home following Mr Blake’s termination.  Although he wrote the reference in a personal capacity he did sign the document in his capacity as General Manager for Netspark Electrical.  In the reference he stated;

I have been requested by Mr Grant Blake to supply a reference for presentation to future employers, and to this end I shall be pleased to offer the following.

Netspark Electrical employed Mr Blake for approximately six months as a Casual Employee, and then for approximately 2 months as a Full Time Employee, during this time Grant has been engaged on the regional underground project in Mt Pleasant, Booragoon and Mt Lawley on behalf of Western Power Corporation.

I have always found Grant to be a good all round electrical mechanic with a sound technical background, he has a pleasant personality and relates well to his fellow workers.

Grant was punctual and performed any task given to him

I would wish Grant well in the future.

60      When called upon to account why he wrote such a reference in the light of his evidence he responded that he did so only because he felt sorry for Mr Blake.  He said that the reference was “Bullshit”.   He just tried to help him out.   He denied that he concocted his evidence to support the Respondent’s case.

Determination

Overview

61      This matter is one of two between the same parties that were heard consecutively.  Matter No M 230 of 2004 was heard first in time.  The Claimant insisted that the matters not be heard together notwithstanding that the Clerk at pre trial conference had directed that the matters be listed to be heard together.  The Respondent did not object to the matters being heard separately.  Accordingly the two matters were heard separately.  They are distinct and can only be determined within the boundaries of the evidence given in each matter.  However what has happened in this matter is that although it traverses almost the same issues as matter No M 230 of 2004, the evidence given with respect to common issues has come out somewhat differently to the other matter.  Crucial evidence on certain issues, which was given in matter No M 230 of 2004, has been omitted in this matter.  It may be the case that the parties may have proceeded on the basis that what was said in the preceding matter had application in this matter.  However that cannot occur.  The same can be said about the submissions.  In the end each matter is a discrete matter and is to be determined based on the evidence given.  Given the state of the evidentiary material in this matter there is a potentiality that inconsistent findings to those made in M230 of 2004 may result on identical issues.

Deed of Settlement

62      The first limb of the Respondent’s defence is that this claim is barred by virtue of a Deed of Settlement entered into by the Claimant on the one hand and Netspark Electrical Pty Ltd on the other with respect to the application in the WAIRC in matter No C 137 of 2002 alleging that Mr Blake and another had been unfairly dismissed.

The Deed provides inter alia as follows:

Without any admission of liability the parties agree:

to (d)  . . .

The Union and the Employees agree that this settlement is in full and final settlement of any and all matters relating to and arising from the employment relationship, save for any alleged breach of the Electrical Contracting Industry Award or Western Power Certified Agreement in relation to the payment of wages, and may be pleaded as a bar to any further proceedings;

63      The first observation to be made is that the Deed is made between the Claimant and a different legal entity to the Respondent in these proceedings.  Assuming that the Deed contains a correctable error, which would make it enforceable against this Respondent, the question remains whether the Deed bars this claim.

64      A plain reading of the Deed of Settlement dictates that this proceeding is valid.  There is nothing in the Deed to prevent action being taken for a breach of the Award.  Quite to the contrary, the Deed specifically permits action for the breach of the Award.  Accordingly the Respondent’s contention is without merit.

Was Mr Blake a Casual Employee After the First Month of His Employment?

65      It is common ground that from the commencement of his employment until the week ending 28 April 2002 Mr Blake was paid at a casual rate of $21.60 per hour.  There is conflict in the evidence as to why he remained as a casual for so long.  However the question remains as to whether Mr Blake could be considered as a casual employee after the first month of employment.  The answer is no.

“Casual Employee” is defined in clause 5(11) of the Award to mean:

“. . . an employee engaged and paid as such.  Provided they shall not be employed as such for more than one month.”

66      It is axiomatic that as a matter of law Mr Blake could only be a casual employee for one month irrespective of what the parties may have agreed.  The parties cannot contract out of the Award (Section 114 of the Industrial Relations Act 1979).  Accordingly Mr Blake was a casual until 21 November 2001 and thereafter a full time employee.

Application of the Principle in James Turner Roofing Pty Ltd

67      The application of the principle established in James Turner Roofing Pty Ltd (supra) requires an analysis of a particular allowance and a determination as to whether the particular allowance is capable of being the subject of an all in rate.  In my view the Claimant’s claim for payment of redundancy cannot be the subject of the “all in rate”.  In James Turner Roofing Pty Ltd (supra) His Honour Anderson J said at page 432 (paragraph 48):

I do not say that in no instance has the appellant contravened the award. It may be, for example, that some of the entitlements prescribed in the award and which were denied to the respondent cannot be discharged by payment of money. The obligation to provide those entitlements may not be capable of being discharged by the payment of an all-in rate, no matter how much it may exceed the rates set forth in the award. In that case there could be no question of set off. For example, I would doubt that there is a sufficient degree of correlation between the nature of the payment made to the respondent and the nature of the obligation to pay untaken long service leave. I would doubt that the over award payment for hours worked could be set-off against the obligation to pay untaken long service leave. It will be for the Industrial Magistrate to consider these matters.

68      Only entitlements, which are finite and determinable for the purpose of calculation of any pay period, are those to be considered as subject to set-off.  Redundancy pay for example could not possibly be contemplated as being part of the “all in rate”.  That entitlement accrues upon the happening of a triggering event of termination.  It is indeterminable on a weekly basis.  Further the payment is entirely variable contingent on the length of service.  Given that the quantum payable is contingent upon variable factors that cannot be known or calculated until the triggering event occurs the same cannot therefore be calculated on a weekly basis.  It follows that it cannot form part of the “all in rate”.  The entitlement is in the same class as entitlements such as long service leave, to which His Honour referred.  On the other hand other Award entitlements such as Annual Leave Loading, Travel Allowance, Grievance Special Allowance and Safety Footwear Allowance are finite in nature.  They are calculable for each pay period.  There is certainty in the quantum payable and are not contingent upon a triggering event.  They are entitlements to which the principle outlined in James Turner Roofing Pty Ltd (supra) applies.

69      Was Mr Blake Entitled to the Allowances Claimed?

70      The Claimant says that Mr Blake was not, during the course of his employment, paid Travel Allowance, Grievance Special Allowance and the Safety Footwear Allowance.  It is the case that such allowances are not specifically described in Mr Blake’s weekly payslips (see exhibit 1).  The Respondent says that those allowances, and others, save for the Travel Allowance, which was not payable in any event, make up the “all in rate” of $18.00 or $21.60 per hour, as the case may be, described as “Normal Hours” in Mr Blake’s payslips.

Travel Allowance

71      Clause 20 of the Award is entitled “Allowance for Travelling and Employment in Construction Work”.  It is axiomatic therefore that the allowance is only payable for construction work.  “Construction Work” is defined in clause 5(12) of the Award as follows:

(12) "Construction Work" means work on site in or in connection with -

 (a) The construction of a large industrial undertaking or any large civil                             engineering project;

   (b) The construction or erection of any multi-storey building; and

   (c) The construction, erection or alteration of any other building,                                             structure, or civil engineering project which the employer and the                                                         union agree or, in the event of disagreement, which the Board of                                                                       Reference declares to be construction work for the purposes of this                                                         award.

72      It is for the Claimant to prove on the balance of probabilities that the Respondent was engaged in construction work.  In that regard Mr Carter testified that he was aware of the nature of the Respondent’s operation and that his view was that the Respondent was engaged in civil engineering, which constituted construction work.  Later in his evidence he said that the Respondent was engaged in construction work as defined in clause 5(12)(c).  The Respondent on the other hand says through Mr McBride and Mr Taylor that it was not involved in construction.

73      The evidence called by the Claimant to prove that the Respondent was engaged in construction work is based on Mr Blake’s evidence.  It is obvious that Mr Carter did not see the work that Mr Blake did.  He has never been to the job at Mount Lawley.  The witnesses called by the Respondent dictate that Mr Blake did not work in construction.  The fact that the Respondent paid Mr Blake a Safety Footwear Allowance, only usually payable with respect to construction work, does not of itself change the nature of the work Mr Blake was doing nor does it prove that the Respondent was engaged in construction work. 

74      Without conceding the point, Mr Gandini, for the Claimant, was during submissions in agreement that it might be difficult for the Court to conclude that Mr Blake carried out construction work.  The state of the evidence does not permit a finding to be made that Mr Blake was engaged in the alteration of a building, structure or civil engineering project “which the employer and the union agree(d)” was declared to be construction work for the purpose of the Award (see clause 5(12)(c) of the Award).  In my view the payment of the Safety Footwear Allowance, to which Mr Blake was not entitled as of right, must constitute an over award payment.

75      I find that the Claimant has failed to prove that Mr Blake worked in construction work and accordingly has failed to prove that he was at all material times entitled to the Travel Allowance claimed.

Safety Footwear Allowance

76      Similarly, this allowance is only payable in respect to construction work.  Accordingly I adopt my reasons with respect to Travel Allowance in finding that the Claimant has not proved its claim in this regard.  Having said that, I acknowledge that the Respondent has purported to pay Mr Blake such allowance as an over award payment as part of the “all in rate”.

Grievance Procedure & Special Allowance

77      Mr McBride, when giving his evidence, failed to specifically refer to the Grievance Special Allowance.  It is obvious to me that he did not even contemplate the payment of the same.  He was simply unaware of his obligation in that regard.  It was not, in his own mind, factored into the “all in rate” of $18.00 per hour paid to Mr Blake.  However that becomes irrelevant.  It matters not what was in his mind.  The real issue was what did the parties contract.  In that regard Mr Taylor discussed pay rates with Mr Blake at the commencement of Mr Blake’s employment.  Mr Taylor’s evidence may be considered to be suggestive of the fact that Mr Blake was paid the “all in rate” of $18.00 per hour inclusive of all allowances.  Notwithstanding that he did not directly address the issue of his discussions with Mr Blake about “an all in rate”.  He did not say positively and unequivocally that he told Mr Blake that he was to be paid an “all in rate” inclusive of allowances and other benefits.  So far as Mr McBride is concerned he cannot recall whether he discussed the hourly rate with Mr Blake.  Mr Blake himself cannot recall with any degree of certainty what was said.  The Respondent asserts that the Grievance Special Allowance and other allowances were part of the “all in rate”.  Accordingly the Respondent has the evidentiary onus in raising the same, which it has done.  However the state of the evidence in this matter is such that it does not enable me to make a finding that “an all in rate” was to apply.  Accordingly I proceed on the basis that the hourly rate of $18.00 was that attributable to ordinary hours exclusive of allowances.  Further, given that there is no suggestion that Mr Blake was involved in industrial disputation, which would disentitle him to the payment of the allowance; the same is clearly recoverable.

Annual Leave and Annual Leave Loading

78      The Claimant seeks the payment of proportionate annual leave entitlements pursuant to clause 23(5)(a) of the Award, which provides:

(5)   (a)  If after one week’s continuous service in any qualifying period an employee (other than a casual employee) lawfully leaves their employment, or their employment is terminated by the employer through no fault of the employee, the employee shall be paid 2.923 hours pay at the rate of wage prescribed in paragraph (b) of this subclause in respect of each completed week of continuous service.

The Claimant also claims Annual Leave Loading.  The relevant Award provision is clause 23(3) which provides:

(3) (a)  Except as hereinafter provided, a period of four consecutive weeks                              leave with payment as prescribed in paragraph (b) shall be allowed                                           annually to an employee by the employer after a period of twelve                                                         months continuous service with that employer.

 (b) (i) An employee before going on leave shall be paid the wages they would                 have received in respect of the ordinary time the employee would have                                           worked had they not been on leave during the relevant period.

  (ii) Subject to paragraph (c) hereof, an employee shall, where applicable,                 have the amount of wages to be received for annual leave calculated at                                           the rate applicable to the employee as prescribed in the First Schedule                                           to this award and the               allowances prescribed by Clause 22. - Location                                           Allowances of the award.

 (c)  In addition to the payment prescribed in paragraph (b) hereof an                 employee shall receive a 17.5% loading calculated on the rate of wage                                           prescribed by that paragraph.

(d)  The loading prescribed by paragraph (c) of this subclause shall apply                to proportionate leave on termination except in the case of an employee                             whose services are terminated by the employer for misconduct.

79      Unlike many other award provisions which do not enable, upon termination, the payment of Annual Leave Loading on the proportionate annual leave entitlement, clause 23(3)(d) of the Award specifically provides for the same.  Accordingly the payment of Annual Leave Loading in this instance is not contingent upon any other variable factor.  In this case the quantum payable is capable of calculation for the purpose of weekly payments and can be the subject of an “all in rate”.  However in other awards where the Annual Leave Loading is not payable on proportionate leave the same could not possibly be the subject of a weekly payment as part of an “all in rate”.  In such circumstances there will be contingent and variable factors, which will preclude the Annual Leave Loading from being considered as part of an “all in rate”.  The consideration of whether the Annual Leave Loading can be set off in accordance with what was said in James Turner Roofing Pty Ltd (supra) will always remain a matter to be determined on a case by case basis.  In this case it can be; in other cases it may not.

80      The transformation of the entitlement into a weekly payment calculated as part of the yearly entitlement is permissible and is akin to what happens when a casual worker is paid a casual loading.  The potentiality of the entitlement being forfeited in cases of misconduct does not vitiate the agreement.  If the employer is willing to pay up front such entitlement which may render the exception to payment for misconduct nugatory, then that is a matter for the employer.  In this matter, given my earlier finding that it cannot be established that the hourly rate was an “all in rate”, the issue becomes non-consequential.

81      It follows, for the reasons previously given, that the Claimant is separately entitled to both proportionate annual leave entitlements and the Annual Leave Loading thereon, subject to the Respondent’s contention that because Mr Blake was terminated for misconduct such entitlements should be forfeited.

82      The entitlement to proportionate leave and loading thereon is calculable from 21 November 2001, being the date upon which Mr Blake ceased (at law) to be a casual employee.  Such is payable from that date until 28 June 2002.  However in view of the fact that annual leave has already been paid by way of a casual loading for the period from 21 November 2001 until 28 April 2002, the Claimant is not entitled to recover payment for annual leave for that period.  If he were able to do so then such would amount to double dipping and be contrary to the relevant principle discussed in James Turner Roofing Pty Ltd (supra).  Accordingly the calculation is to be made for the period 29 April 2002 to 28 June 2002 being ten completed weeks.  However I must also take into account the fact that Mr Blake has been paid his entitlements for that period as is evident in the final pay slip in exhibit 1.  It follows that the claim for annual leave payment falls away.  However the claim for Annual Leave Loading in the amount of $294.65 is allowable because the same could never in this instance have comprised part of the casual loading and further because it was not paid upon termination.  Whether or not the claim will be allowed in the end will be dependent upon the determination yet to be made as whether Mr Blake was terminated for misconduct.  For the sake of completeness I also comment there is nothing in what was said in Shire of Esperance v Mouritz (supra) that would require the claim to be rejected.

Redundancy

83      The redundancy provision is found in clause 38 of the Award.  I set out the relevant subclauses:

(1) Definition

"Redundancy" means a situation where an employee ceases to be employed by an employer, respondent to this award, other than for reason of misconduct.  "Redundant" has a corresponding meaning.

(2) Redundancy Pay

A redundant employee shall receive redundancy/ severance payments, calculated as follows, in respect of all continuous service (as defined in subclause (4) of this clause) with his or her employer provided that any service prior to 22 November 1990 shall not be counted as service.

Provided that an employee employed for less than twelve (12) months shall be entitled to a redundancy/severance payment of 1.75 hours per week of service if, and only if, redundancy is occasioned otherwise than by the employee.

102   Mr Blake worked for the Respondent for less than one year but is nevertheless entitled to redundancy pay within the meaning of clause 38(1) unless it can be demonstrated that his employment was terminated for reason of misconduct; the onus resting upon the Respondent to prove the same on the balance of probabilities.  I accept that the Claimant is entitled to recover the amount of $1,008.00 unless it is demonstrated that he was terminated for misconduct.

Misconduct

103   The Respondent’s case is that Mr Blake was dismissed for misconduct.  In essence the evidence given by each of Mr McBride, Mr Taylor and Mr Stokes supports a finding that Mr Blake was incompetent.  The evidence of Mr McBride and Mr Taylor also suggest that Mr Blake failed to observe company policies despite warnings.  In particular, he failed to observe the vehicle reversing policy.  In addition his conduct in bringing pornographic material to the workplace and his use of bad language is also said to amount to misconduct.  Mr McBride testified that Mr Blake had displayed insubordination toward him by telling him to “f… off”, which also constituted misconduct.

104   Mr Blake denied the Respondent’s contention that he had been guilty of misconduct.  He said that there had never been any suggestion prior to the commencement of these proceedings that he was terminated for misconduct.

105   Misconduct connotes positive and intentional wrongdoing whereas other grounds for dismissal, such as incompetence and neglect, do not involve intentional misconduct.  Incompetence of an employee may be sufficient justification for the exercise of the right of summary dismissal (See Harmer v Cornelius (1858) 141 ER 94 at page 98) The Respondent has through Mr McBride and Mr Taylor complained bitterly about Mr Blake’s lack of competence.  It was Mr McBride’s evidence that his lack of competence had, during the period of Mr Blake’s employment, cost the Respondent dearly.  Notwithstanding that, the Respondent failed to warn Mr Blake in any official way.  There is nothing to show that the issue of lack of competency was ever addressed other than in a casual manner.  I fear that the issue of lack of competency has gained more significance in the light of these proceedings, whereas it was not a matter of primary significance during the course of the employment.  Indeed the same is to be said of other issues of which the Respondent complains.  The vehicle reversing policy is one such example.  Other than a casual discussion about the need to take care when reversing following Mr Blake’s traffic accident, the issue did not gain any particular importance.  It has only assumed importance because of these proceedings. Similarly the same can be said about Mr Blake’s introduction of pornographic material onto site.  Although Mr Blake denied bringing pornographic material onto site, the weight of the evidence, particularly with respect to the videotape depicting bestiality, is against him.  I am satisfied, based on the evidence of Mr Archer and Mr Stokes, that Mr Blake did take pornographic material onto the worksite.  Clearly his conduct in that regard was reprehensible.  However his employer did not reprimand or warn him in any official way concerning the same.  Again the incident drew little more than a cursory comment.  It did not lead to any disciplinary action.  It seems that the employer was prepared to let it ride.  Mr Blake’s actions in that regard did not cause the Respondent to consider that it should dismiss him at that time.  However it later became the basis for dismissal.  The Respondent has now chosen to use it as part of its armoury of reasons to justify dismissal for misconduct so as to deny Mr Blake his entitlements.

106   The real reason why Mr McBride decided to terminate Mr Blake’s employment was because Mr Blake told him to “f… off”.  It was not the use of the bad language in itself that was the problem but rather the fact that Mr Blake was insubordinate to Mr McBride.  In my view Mr McBride’s evidence is clearly demonstrative of that fact.  I prefer Mr McBride’s evidence that he was told to “f… off” to that of Mr Blake.  Mr Blake’s credit was found to be wanting on the issue of bringing pornographic material onto site.  That undermines his credibility generally.  I do not accept his evidence that he was terminated for reason of lack of work.  He asserts that he was given a separation certificate, which reflects that, yet the Claimant has failed to produce the document or subpoena the document from Centrelink.  In the end I do not accept Mr Blake’s version of what transpired.

107   Rather than dismiss Mr Blake on the spot when the act of insubordination occurred Mr McBride decided to wait a few days to get together as much adverse material as he could to justify his intended dismissal of Mr Blake.  By that stage he had decided that Mr Blake was no longer to be an employee of the Respondent and wanted to set up a basis for his dismissal.  That is why there was a need for the “ducks to be lined up”.

108   It is obvious that there was not a summary dismissal for misconduct.  Furthermore it is self evident that Mr Blake had not received any formal or written warnings about the issues of which the Respondent now complains and which it says amount to misconduct.  In the circumstances it cannot be said that Mr Blake was dismissed for misconduct.  Mr McBride simply did not want him to retain his employment in the light of Mr Blake’s defiant attitude towards Mr McBride.  His act of defiance caused Mr McBride to decide that the Respondent should no longer employ him.  He was accordingly dismissed with pay in lieu of notice.  All the other issues of concern have been beaten up to make Mr Blake’s situation look far worse than it actually was considered to be when his employment ended.

109   Indeed it is simply inconceivable, even if Mr Taylor had felt sorry for Mr Blake, that he should write a reference in such glowing terms in the light of what has now been alleged against Mr Blake.  Why would Mr Taylor have felt sorry for Mr Blake in any event given that he had done all those things of which the Respondent now complains to the extent alleged?  In reality those matters preceding the defiance of Mr Blake were not seen by the Respondent as being significant issues.  Had they been significant issues I doubt that Mr Taylor, on behalf of the Respondent, would have written the reference that he did.

110   I do not accept that Mr Blake was dismissed for misconduct.  I find that he was not dismissed for misconduct.  Misconduct is a convenient label that the Respondent has given to what occurred to justify the termination and the non-payment of entitlements.

Conclusion

111   The Claimant is entitled to recover that which it seeks on Mr Blake’s behalf with the exception of Travel Allowance, Footwear Allowance, and payment in lieu of Annual Leave.  Accordingly the Claimant is entitled to recover $2140.65, which was underpaid to Mr Blake.

112   I will now hear the parties concerning the orders that are to be made.

G Cicchini

Industrial Magistrate