Allan Bell v Commonwealth of Australia

[1995] IRCA 474

C A T C H W O R D S

INDUSTRIAL LAW - termination of employment - performance

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

ALLAN BELL -V- COMMONWEALTH OF AUSTRALIA

No. SI 1129 of 1995

JUDICIAL REGISTRAR:                   L FARRELL
PLACE:  ADELAIDE
DATE:  14 SEPTEMBER 1995

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA REGISTRY  )

No. SI 1129 of 1995

B E T W E E N:

ALLAN BELL

Applicant

AND

COMMONWEALTH OF AUSTRALIA

Respondent

MINUTES OF ORDER

BEFORE:                 JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  14 SEPTEMBER 1995

THE COURT ORDERS THAT:

1. The Application is dismissed.

NOTE:            Settlement and entry of Orders is dealt with by Order 36 of the   
  Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA REGISTRY  )

No. SI 1129 of 1995

B E T W E E N:

ALLAN BELL

Applicant

AND

COMMONWEALTH OF AUSTRALIA

Respondent

BEFORE:                  JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  14 SEPTEMBER 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks compensation. He does not seek reinstatement.

The applicant was employed as an Administrative Services Officer Class 1 in the Department of Social Security from 16 May 1990 until 23 March 1995.

His supervisor, in the probation report, included the following remarks, “making very satisfactory progress”, “an attitude problem”, “aggressive remarks” and “certain tasks get behind a little at times”.

In 1992 and 1993 there were some good and some bad reports on his work performance.

On 13 January 1994 the Applicant received a warning.  On 21 September 1994 the Applicant was formally warned for failing to achieved an acceptable standard of work.  On 28 September 1994 Mr Klauke was appointed to assess the Applicant by what is known in the Australian Public Service as the “inefficiency process”.  This was a three month assessment of the Applicant’s work performance.

From 10 October 1994 to late December 1994 the Applicant’s supervisor kept daily statistics of the Applicant’s work performance.  Those statistics indicated that the Applicant performed his duties at a much slower rate than would be expected.

On 3 January 1995 Mr Klauke reported to the Delegate on the Applicant’s standard of work performance. On 4 January 1995 the Delegate, Mr Farnham, issued a notice of intention to retire the Applicant. On 10 January 1995 the Applicant responded to the notice of intention. On 18 January 1995 the Applicant was given a Notice of Retirement pursuant to Section 76W of the Public Service Act 1922.

The Applicant appealed to the Redeployment and Retirement Appeal Committee on 29 January.  The Redeployment and Retirement Appeal Committee dismissed the Applicant’s Appeal on 22 March 1995, publishing its reasons on 10 April 1995.

In the course of the hearing before me the applicant attacked the honesty of Mr Reyes-Smith and Mr Klauke as well as a number of other persons whose reports were in evidence before me.

Both Mr Klauke and Mr Reyes-Smith gave evidence and they impressed me as honest and straight forward.  The criticisms of them were trivial and insignificant, especially when seen against the background of the daily statistics of the Applicant’s work performance.

I found it difficult to accept the Applicant’s evidence, it was give in an extreme manner.  He failed to deal intelligently with the criticisms he faced and he was highly repetitive in his answers in cross-examination.

It was the Applicant’s case that 26 people in the Department of Social Security had engaged in victimisation and harassment of him.  There was no evidence before me that could support such a finding.

It appears to me that the Applicant failed to appreciate the necessity to co-operate with his supervisor in his work performance.

I accept the evidence before me that the Applicant’s work performance was poor and this was the reason for the termination of his employment.

In my view it was a valid reason for the termination of the Applicant’s employment.

The Applicant also argued that the fact that the inefficiency process was two weeks short of the prescribed three months rendered the termination of his employment harsh unjust and unreasonable.

In my view the “inefficiency process” represents the high water mark in terms of community standards for approaching the termination of employment of inefficient workers.  That the process was slightly shortened in no way effects the efficacy of the process in this matter.

For these reasons the Application is dismissed.

I certify that this and the preceding two pages are a true copy of the reasons for my judgment.

DATE OF HEARING             :          4 and 5 September 1995

FOR THE APPLICANT         :          Himself

FOR THE RESPONDENT     :          Ms J Bonsey