Dec 526/00 M Print S5904

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996
s.45 appeal against decision Print Q1099
issued by Simmonds C on 21 May 2000

Karl Pawel
(C No. 33992 of 1998)

s.170CE application for relief in respect of termination of employment

K. Pawel

and

Advanced Precast Pty Ltd
(U No. 33326 of 1997)

SENIOR DEPUTY PRESIDENT POLITES

 

SENIOR DEPUTY PRESIDENT WATSON

 

COMMISSIONER GAY

MELBOURNE, 12 MAY 2000

Appeal re termination of employment.

DECISION

[1] On 4 September 1998 this Full Bench refused to grant leave to appeal in relation to a decision by Simmonds C made in Melbourne on 21 May 1998 that the termination of Mr Pawel's (the appellant) employment by Freshmore Pty Ltd (the respondent) had not been at the initiative of the employer. Consequently he dismissed an application under s.170CE of the Workplace Relations Act 1996 (the Act).

[2] An application for prerogative relief was made in relation to this decision to the High Court of Australia and it was remitted by that Court to the Federal Court of Australia.

[3] On 10 December 1999 the Federal Court quashed the decision of the Full Bench and directed a writ of mandamus to the Commission to hear and determine the matter in accordance with law.

[4] Different reasons for the issue of the prerogative writs were given on the one hand by Branson and Marshall JJ and on the other hand by Dowsett J. The substantive reason given by Branson and Marshall JJ is as follows:

[5] A different approach was taken by Dowsett J in the following passages:

[6] The matter was relisted before us on 20 April 2000 when Mr McDonald, a solicitor who appeared for the appellant, made the following submissions:

[7] Mr Martin of Counsel who appeared on behalf of the respondent, conceded in the light of the decision of the Court that it was an appropriate case for the grant of leave to appeal. He requested the Commission not to make a finding on the issue of whether the termination was at the initiative of the employer because, he submitted that question in fact overlaps with the question of whether the termination, if it be a termination, by the employer is harsh, unjust or unreasonable. Mr Martin submitted because of cost, the extremely time consuming and difficult piece of research necessary to address the issue of when a termination might be at the initiative of the employer which was suggested in the decision of Dowsett J in the following passages, had not been undertaken. Dowsett J in his minority decision in the Federal Court, when the matter was before it, said

[8] In light of the decision of the Court and having regard in particular to the concession by Mr Martin made above, we grant leave to appeal.

[9] We turn then to determine the appeal. We turn first to the issue of jurisdiction and in so doing we decline to accept the submission by Mr Martin that we should not consider this issue. This involves the determination of whether the appellant's employment was terminated by the employer. It was not contended before Simmonds C that there was any direct termination of the employment by the employer. Rather, it was submitted there was "a constructive dismissal occasioned by the requirement that Mr Pawel undertake welding duties with such duties being a threat to his health". Simmonds C summarised the appellant's case as follows:

[10] Simmonds C also made a number of factual findings which Mr McDonald on the relisting of this matter, did not challenge. They were:

[11] The jurisdictional question for us to determine is having regard to those factual findings as properly expressed, whether the respondent's actions were such as to amount to termination of employment at the initiative of the employer and it is to be noted that on this issue there was a clear division between the majority and minority decisions in the Federal Court. The majority made this observation:

We have already set out in this decision the observations of Dowsett J in relation to this issue.

[12] In Mohazab v. Dick Smith Electronics Pty Ltd (No 2) (Mohazab) the Full Court made these observations:

[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.

[14] In those circumstances the employer's requirement that the appellant carry out welding duties was plainly a reasonable instruction and it was not an instruction of a character which in our view would enable the appellant to say that he had no option but to terminate his employment. In our view, different considerations would arise if the instruction was unreasonable or had placed the employee under some sort of unfair pressure. This is not the case here. Accordingly, we are of the view that there was no termination of employment at the initiative of the employer. The appellant knew of the requirement to weld and chose to leave the employment rather than weld.

[15] However, even if we were wrong in respect of that matter and the Commission had jurisdiction to entertain the claim we would not be of the view that the determination was harsh, unjust or unreasonable. In our view, having regard to the findings of Simmonds C, the employer's requirement that the applicant undertake welding duties was a reasonable requirement. It posed no objective danger to his eye sight provided the welding was not continuous welding. It is clear from the findings of Simmonds C that the welding was not continuous welding and that the appellant had welded (with the exception of a few weeks before the termination) for the whole of his period of employment with the respondent. Moreover, the findings reveal that while the appellant did not like welding he performed the work without apparent difficulties. The findings also indicate the employer required the employees to be multi-skilled.

[16] Where in the circumstances outlined above termination of employment had followed a refusal to perform welding duties the termination could not in our view be described as harsh, unjust or unreasonable. Rather, there was a valid reason for the termination of the appellant connected with the operational requirements of the undertaking. None of the other factors in s.170CG(3) bears upon this mater. We reject the application.

[17] For these reasons we dismiss the appeal.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Appearances:

A. McDonald of Counsel on behalf of K. Pawel.

D.P. Martin of Counsel on behalf of Freshmore Pty Ltd.

Hearing details:

1998.
Melbourne:
July 31.

2000.
Melbourne:
April 20.

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