AMACSU v Shire of Collie
[1995] IRCA 467
•14 September 1995
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether termination was harsh, unjust or unreasonable within the meaning of clause 6(f) Municipal Employees (Western Australia) Award 1982.
Industrial Relations Act 1988 (Cth) s178
Municipal Employees (Western Australia) Award 1982 clause 6(f)
Bostick (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20
Byrne v Australian Airlines Limited (1994) 47 FCR 300
THE AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION & ANOR v SHIRE OF COLLIE
No. WI 342 of 1994
Beazley J
14 September 1995
Sydney
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
) No WI 342 of 1994
WESTERN AUSTRALIAN )
DISTRICT REGISTRY )
BETWEEN:THE AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION
First Applicant
BRIAN WILLIAM ADAMS
Second Applicant
AND:SHIRE OF COLLIE
Respondent
CORAM: BEAZLEY J
PLACE: SYDNEY
DATED: 14 SEPTEMBER 1995
SHORT MINUTES OF ORDER
The Court declares:
That the responent in terminating the second applicant's employment on 27 July 1993, breached cl 6(f) of the Municipal Employees (Western Australia) Award, 1982.
The Court orders:
That the respondent pay the sum of $50 by way of penalty pursuant to s 178 of the Industrial Relations Act, 1988
Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
) No WI 342 of 1994
WESTERN AUSTRALIAN )
DISTRICT REGISTRY )
BETWEEN:THE AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION
First Applicant
BRIAN WILLIAM ADAMS
Second Applicant
AND:SHIRE OF COLLIE
Respondent
CORAM: BEAZLEY J
PLACE: SYDNEY
DATED: 14 SEPTEMBER 1995
REASONS FOR JUDGMENT
This is an application under s178 of the Industrial Relations Act, (1988) (Cth) (the Act) for an order for the imposition and recovery of a penalty against the respondent for an alleged breach of cl 6(f) the Municipal Employees (Western Australia) Award 1982 ("the Award") by the respondent. There is no dispute that the respondent was bound by the Award. Clause 6(f) provides:
"Termination of employment by an employer shall not be harsh, unjust or unreasonable."
The alleged breach arises out of the termination of the second applicant's (Mr Adams) employment with respondent on 27 July 1993.
BACKGROUND
Mr Adams commenced employment with the respondent in about October 1988 as a truck driver. For about the first eighteen months of his employment, his duties included driving a desludge truck, which was a small three tonne vehicle. In about December 1992, he was reclassified to drive larger six wheel trucks of up to about 14-15 tonnes. It was suggested in the evidence that this reclassification involved an upgrading of Mr Adams' position. Mr Adams thought that the wages for driving the desludge truck may have been higher. In any event, even after December 1992, Mr Adams was sometimes directed to drive the desludge truck. Mr Adams' termination on 27 July 1993 followed three particular incidents in the preceding months. The first incident occurred on 27 May 1993 when the power take off unit ("PTO unit") on the fifteen tonne vehicle which Mr Adams was driving on that day was damaged. The second incident occurred on 31 May 1993, when Mr Adams took some sheets of corrugated iron from the council tip for his personal use and used a council truck to transport them within the tip to a convenient pick up spot. The third incident occurred on 3 June 1993, when Mr Adams reported a malfunction of the ignition key on the pump motor to the tank on the desludge truck. It is necessary to deal with each of these incidents in turn.
INCIDENT ON 27 MAY 1993
Mr Adams gave evidence that, on 27 May 1993 he was assigned to a road construction job at Cherry Road, Collie. Three tipper trucks were being operated on the job, one driven by Mr Adams and the other two driven by Mr Brian Turvey and Mr Troy Johnson. During the course of the day, Mr Adams had been driving the fifteen tonne truck over rough terrain carrying soil from the site to dump it at a nearby farm. He said that after dumping a load of soil, the farmer indicated there was a problem with the truck and he noticed that the PTO unit on the truck had been damaged.
Mr Adams stated that at no time whilst driving the truck on 27 May 1993 did he strike any object or do anything else that would have caused the PTO unit to be damaged. He said that about twenty minutes prior to his becoming aware of the damage, he had used the tipper on another load at a different location. He had no difficulty with that load and concluded that the PTO unit must have been attached and working at that time.
The respondent's foreman mechanic (Mr True) was called out to inspect the truck near the job site. He said that on examination, he discovered that the PTO unit for the tipper tray had been smashed off the gearbox of the truck and was hanging down at the end of the hydraulic hoses. He observed that the protection guard, designed to shield the PTO unit hydraulic hoses from damage, had been bent away from its normal position. Mr True concluded, from his examination, that the damage must have been caused by the truck being reversed over a large solid obstacle at least eighteen inches in height.
The respondent's engineer, Mr Harris, inspected the damage to the PTO unit as well as the site where the incident occurred. He measured the truck and examined the location of the PTO unit relative to the height of the axles. He examined the Cherry Road site the day after the incident. He said on that day there were no rocks on the roadside, but he examined the stock-piles of rocks which had been carted from the roadside, over the several days prior to the day of his inspection. He said that there were plenty of rocks in evidence in the spoil dumps, which varied up to two feet in size.
However, Mr Adams' fellow employees supported his version. Mr Greaves, was the grader operator and leading hand in charge of the crew at the Cherry Road site on 27 May 1993. Part of his work involved creating a windrow. The windrow was located in the middle of the road so that the trucks could drive down one side of the windrow, collect the gravel at the end and then drive along the other side. This meant that there was no need to reverse the truck over the windrow. The loader would load gravel on to the back of the trucks for carting away to a nearby farm. Mr Greaves said that the load only consisted of gravel and small rocks. The larger rocks had been removed earlier. Mr Greaves said that at no stage did he observe Mr Adams driving the truck in anything but a very careful and safe manner. In particular, he did not observe him driving the truck over the windrows on that day.
Mr Turvey stated that he had worked with Mr Adams from the time that he joined the respondent's employment and had worked consistently with him almost every day. He said that during that time he had never seen him driving roughly and believed that he was a careful driver. He never saw him mistreat any equipment. Mr Turvey stated that there were no large rocks, potholes or branches either in the vicinity where the gravel was loaded, including on the road verge or on the windrow, along the road to the farm or at the farm. He confirmed Mr Greaves' evidence that the large rocks had been carted away prior to 27 May 1993. He said this was in accordance with normal practice. He said that he did not go over the windrows on that day nor did he see Mr Adams go over the windrows. He said they both drove around the windrows.
Mr Johnson gave similar evidence. He said he was working with Mr Adams on 27 May 1993 on the Cherry Road project. He said the larger rocks had been removed from the site prior to the trucks coming in and removing the gravel. He did not see Mr Adams reverse over or drive over a large rock. He also gave evidence that Mr Adams was not the sole operator of the truck and sometimes other drivers drove the truck for short periods.
Neither Mr Greaves, Mr Turvey nor Mr Johnson were cross-examined.
INCIDENT AT THE LOCAL TIP: 31 MAY 1993
On 31 May 1993, in the course of his duties with the respondent, Mr Adams was required to go to the local tip. Whilst there he took two sheets of corrugated iron for himself. Mr True, who was on a rostered day off, was at the tip. He observed Mr Adams' conduct and reported it to Mr Wignell, Mr Adam's immediate supervisor. He said that Mr Adams took about twenty minutes talking to the tip attendant and loading the iron onto the council vehicle.
Mr Adams did not deny that he had removed the corrugated iron from the tip. However, he disputed the detail of Mr True's version. He said, in the first place, that it is common practice in the Shire rubbish tip for the respondent's employees to take items from the tip. His understanding was that council time and equipment should not be used for private purposes so that, for example, he would not be able to use a council truck to drop items off at his house. He believed, however, that it was permissible to leave items aside to take home after work hours. He said that on 31 May 1993, he merely loaded the two sheets of corrugated iron on to the council truck, which he was loading in any event. He then drove the truck approximately one hundred metres and dropped the sheets off in a place where he could pick them up after work. He said this took about one or two minutes, as he dropped the sheets off on the way to the exit from the tip. He did admit that whilst he was at the tip, he spent about five minutes talking to the tip attendant and undid the tailgate of the truck whilst doing so. He said his discussions with the tip attendant related to her concerns that she was being removed as tip attendant and also to ask if he could take the two sheets of corrugated iron from the tip.
He said that whilst he believed he had acted reasonably and in accordance with his understanding of council rules, once he had been warned not to remove materials from the tip for his own purposes, he accepted this direction and had not subsequently removed any other materials from the tip site.
Mr Wignell considered this incident to be a significant one when the time element of about twenty minutes was taken into account. He said in that regard, he believed Mr True's evidence. He said the aspects about the incident which bothered him were the time wasting element and the fact that it was illegal to take anything from the tip. Mr Harris did not consider the tip incident to be as serious as the incident relating to the damage to the PTO unit and the desludge truck incident. He said, however, that council employees had no right to use council vehicles for "private purposes during work hours, whether it's five minutes or 15 minutes" without permission. In that regard, council had a policy that a person had to make an application at the Shire for private work to be carried out using council equipment and that "an up front minimum fee of $100" was payable. He did not agree that it was an "utterly trivial incident".
THE DESLUDGE TRUCK INCIDENT: 3 JUNE 1993
On 3 June 1993, Mr Adams was required to drive the desludge truck. He said that on that occasion, before he took the truck from the depot, he tested the ignition switch on the pump motor and found that it did not work. He said he took the precaution of testing the ignition switch before setting out on his job as, when he was performing duties on the desludge truck three weeks previously, he could not get the ignition switch to work. He said that when he returned to the yard that day, he put in a fault docket reporting a malfunction of the switch.
When, on 3 June 1993, the ignition switch again would not work, Mr Adams called Mr Wignell over the two-way radio and informed him that he could not start the pump motor on the desludge truck. Mr Wignell told him that the pump had been working a few days previously and asked whether Mr True was there. Mr Adams replied "I've no idea". At the time, Mr Wignell was about fifteen kilometres away in his council vehicle. He told Mr Adams to wait and he would return to the depot. When he arrived at the depot, he tried the ignition key on the pump motor. The key turned and the motor started immediately.
Mr Wignell said that that was the first occasion he had had anything to do with the operation of the pump motor and he experienced no difficulty whatsoever in starting it. Mr Adams, however, stated that there was a genuine problem with operating the desludge pump motor. He said it could only be started by pressing in the key hard enough for the centre part of the ignition to be pressed in and by then turning the key. He said that he was not aware of this on 3 June 1993. Mr True said, however, that the ignition is spring loaded and all that was necessary was to push the key in before turning it. In other words, there was no problem with the ignition.
Mr Adams called witnesses in support of his case on this issue. Mr Johnson gave evidence that, on 7 July 1993, he had experienced a similar problem with the ignition key. He said that one of the other workers explained to him, however, that there was a trick with the ignition and that it required special handling in order for the key to start the motor. He said he did not report the incident because he had heard of people having problems with the ignition key previously and thought that it was likely to have already been reported. Mr Thomas, another fellow employee, said that on 29 June 1993, when he attempted to start the desludge pump motor, it would not start. He said that the key assembly seemed loose and when he tried to turn the key, everything turned. He said he continued several times "twisting and turning the key" and it eventually turned properly and the motor started. Mr Greaves also gave evidence that after Mr Adams had been accused of wasting time when he had been unable to start the pump, he personally went and investigated the key mechanism and found that he could put the key in and turn it the full distance without the mechanism working.
Mr Adams also called evidence to the effect that the ignition switch required maintenance about a month later. However, according to the respondent's witnesses, the repairs which were carried out at this time involved replacing a missing locking nut, and were not because it was faulty.
None of Mr Adams' witnesses were cross-examined on this issue. Notwithstanding this, Mr Wignell refused to concede that there was a problem with the key mechanism as it had not been reported to him at any time and, when he had tried to operate it, it had started without difficulty. He did not appear to know that a fault docket had been put in about three weeks earlier. He considered that Mr Adams was merely feigning the incident. Mr Harris, however, had checked to see whether a fault notice had been lodged in respect of the faulty switch prior to 3 June 1993. He ascertained that it had.
Another issue arose in respect of this incident. Mr True was in fact at the depot when Mr Adams called Mr Wignell on the two-way radio and overheard the entirety of their conversation. He said Mr Adams knew that as, when Mr Adams went into the key room within the workshop building to get the key for the pump, he looked directly at Mr True. Mr Wignell conceded that when Mr Adams told him that he had no idea where Mr True was, he made an assumption that Mr True was not at the depot.
Mr True admitted that he had acted wrongly on that occasion in not contacting Mr Wignell and advising him that he was in fact nearby. He in fact had been reprimanded for his conduct. He said that did not do so because he considered that Mr Adams "had an attitude problem to his employer and I just didn't want to get involved in his funny little games like that".
Relationship between Mr Adams and the respondent
The respondent's normal disciplinary procedures involved the immediate supervisor giving a verbal warning to an employee in the first instance, to see if the matter could be settled at that level. If not, it could be followed by a meeting with a senior officer and the issue of a written warning. In the present case, Mr Wignell admitted that he had not given Mr Adams any verbal warning in respect of the incident with the PTO unity. He said, however, that Mr Adams knew that he was upset about the incident, "and I said to him that it would be investigated ... And he naturally assumed that there would be a reprimand to follow". When asked how Mr Adams would have made the assumption, Mr Wignell said, "I suppose of past things that had been a problem you know ... he certainly got his fair share [of reprimands] from me". Mr Wignell also conceded that he made an assumption that the damage to the PTO unit was caused by rocks and that he in fact prejudged the situation. He also conceded that he had told Mr Harris that he had given Mr Adams a verbal warning prior to the 16 June 1993 meeting. Mr Wignell did not raise the rubbish tip incident with Mr Adams at all prior to 16 June 1993.
It will also be observed that all three of these incidents, in one way or the other, involved Mr True. It was apparent that there were personal difficulties between Mr Adams and Mr True. Initially, in his evidence, Mr True said that he was "just neutral" towards Mr Adams, that he was not a person he got friendly with. However, in proceedings in the Industrial Relations Commission, Mr True had said of Mr Greaves and Mr Adams, "they've got a sort of intense hatred for me for some reason". He had said in the course of those proceedings, however, that if he saw Mr Adams stuck on the side of the road he would offer to help him. He then gave the following evidence:
"In fact, the situation got so bad that Adams would always have to go through his work supervisor and could not really approach you directly to ask you to do work. There had to be a middle man. Is that correct?
...
That is the ruling that the Shire has that everybody goes through their supervisor. None of them are supposed to come to me in the first place, but discretion is used. If the supervisor's not available they can come straight to me."
Mr Wignell confirmed that this was the correct procedure. He said that the system had been put in place, in part at least, as he understood it, because of the problems between Mr Adams and Mr True. He said, however, that he considered that simple tasks could be taken directly to the mechanic.
16 JUNE 1993 INCIDENT
On 16 June 1993, Mr Harris called Mr Adams to a meeting to discuss these incidents. Mr Wignell was present, as was Mr Greaves, who was also an MEU shop steward. At the end of questioning in respect of each incident, Mr Adams was advised that he would be given a written warning. In addition, Mr Harris advised him that the matters which he had raised in his defence would be investigated and at the conclusion of the investigation he would be informed of any decision concerning his employment with the council.
Mr Adams was given a written warning in respect of the damage to the PTO unit on 16 June. The warning, which was signed by both Mr Wignell and Mr Harris stated, wrongly, that a verbal warning had been given by Mr Wignell on 28 May 1993.
On 21 June 1993, Mr Harris and Mr Wignell interviewed Mr Anderton, the council's safety representative, and Mr Johnson. Mr Anderton said that he had not been working on the Cherry Road project on 27 May 1993, but that he had been called out to the site at the end of that day to pick up Mr Adams' truck on the low loader for transport to the depot for repairs. He said that when he went to fetch the truck, he had not observed any rocks on the road nor on the track into the farmer's property. When Mr Wignell reminded Mr Anderton that there were rocks of varying sizes mixed in with the spoil being removed and carted away, Mr Anderton acknowledged that he was aware of that from another occasion on which he had been working on this project. Mr Anderton also admitted to Mr Harris and to Mr Wignell, that whilst it was not usual practice to drive over the windrows when positioning a truck, it was done from time to time. Mr Harris said that Mr Anderton's evidence regarding the driving of trucks over the windrows supported his conclusion that Mr Adams had, in all probability, driven the truck over a windrow of dirt which contained a rock and in doing so had damaged the PTO unit.
Mr Johnson also confirmed that drivers from time to time did drive over the windrows, but could not say whether it had occurred on the day in question. He also said that he had noticed an oil spillage from the PTO unit "on Cherry Road right back to the source of spoil".
Mr Harris had concluded that, from his examination of the PTO unit, there was clear evidence that it had been struck by a rock. His inspection of the site confirmed him in his conclusion. Mr Harris stated that from the information from Mr Anderton and Mr Johnson that, from time to time, truck drivers drove over windrows, he came to "the logical conclusion that [Mr Adams] must have driven over the windrow at some time to have hit the rock with the truck". Mr Harris admitted that, from his observation, the axles had not been hit by a rock or, at least not sufficiently, to have caused any mark to be seen. The axles, of course, were considerably closer to the ground than to the PTO unit. However, he said that that did not discount the possibility that the truck had been driven over the windrow at an angle, having missed the rock either driving forward or in reverse. To the extent that Mr Anderton supported Mr Adams, Mr Harris had dismissed what he said as he considered that Mr Anderton was "not a very substantive witness, as indicated to me by the shop steward".
Mr Harris concluded that Mr Adams had been negligent in respect of the incident with the PTO unit. He said that he reached this conclusion having regard to his investigation at the site, his inspection of the soil dumps and observation of the rock sizes, his investigation of the truck itself and the axles, as well as the nature of the damage to the PTO unit. In addition, he relied upon Mr True's opinion as to the cause of the damage.
Mr Harris and Mr Wignell had another meeting with Mr Adams on 22 June 1993. Mr Greaves was in attendance. The three incidents were again raised at this meeting. Mr Harris advised Mr Adams that contrary to what had been indicated on 16 June, Mr Adams would not be given a written warning over the rubbish tip incident but would be given a strong verbal reprimand. He confirmed, however, that written warnings would, as previously indicated, be given in respect of the damage to the PTO unit, and the desludge truck incident. In relation to the former, Mr Harris advised Mr Adams that he considered that his conduct and performance of his duties:
"displayed a degree of negligence and a don't care attitude, which not only indicated that he was not interested in care of plant entrusted to him, but also a neglect of his duty of care and responsibility and the performance of his assigned duties relevant to council's standards".
In relation to the desludge truck incident, Mr Harris advised Mr Adams that he had concluded that he had acted in an uncooperative manner, and:
"that his actions were deemed to be inefficient, time wasting and neglectful of his own duties not to mention the wasting and unnecessary diverting of the Principal Works Supervisor time from his normal duties".
Mr Adams was asked whether he wished to comment in respect of any of these incidents. Mr Adams declined to do so. Mr Greaves similarly declined to make any comment. Mr Harris advised Mr Adams that he had decided that he should be stood down from his duties as a 14/15 tonne truck driver, that he be allocated alternative duties as directed by the Principal Works Supervisor and that he be required to undergo a suitable training programme. As events turned out, no training was provided prior to Mr Adams' dismissal.
On 24 June 1993, Mr Adams received two letters from the respondent. The first related to the damage to the PTO unit and the desludge truck incident. In the letter, Mr Harris confirmed that Mr Adams was to be taken off his duties as a 14/15 tonne driver and offered alternate duties as required. He was also advised that he would be required to undergo a retraining programme and that he would suffer no loss of basic salary and allowances. The second letter related to the rubbish tip incident. It confirmed that Mr Adams had been issued with a "strong verbal reprimand" on 22 June 1993 and that the matter would be placed on his personal file.
Mr Adams was called to another meeting with Mr Harris on 20 July 1993. On this occasion, Mr Wall, the Principal Parks Supervisor, was in attendance, as was Mr Greaves. Mr Harris advised Mr Adams that the meeting had been convened as a direct result of his having refused to drive the desludge truck as instructed by the Shire Engineer at 7.30 that morning. Mr Adams explained his actions on this occasion by stating that as he had not been retrained, he considered that he should not drive the desludge truck, or any vehicle for that matter, because he felt that he was just as capable of doing or causing damage to those vehicles as the one from which he had been removed.
Mr Adams repeated this point of view in his evidence. He said that he had told Mr Harris on 20 July 1993 that he was not refusing to drive the truck, but told him that he would rather not do so. As he said, "I don't think it was right to ask me to drive that truck under those circumstances". He then asserted that he had been accused of deliberately damaging the 14/15 tonne truck. He conceded, however, that there was no such allegation in the minutes of the meetings held on 16 and 24 June 1993, but he said Mr Harris had called him "incompetent, negligent...". Mr Harris advised Mr Adams that he would be placed on menial duties during the day so that he could consider his position and that a further meeting would be conducted that afternoon. I am satisfied that the finding which had been made against Mr Adams was of negligence. This is not only supported by the evidence in the record of the meeting, but also by Mr Greaves who gave evidence on behalf of Mr Adams.
A further meeting was held at 4.00pm that day. Mr Adams advised Mr Harris that there was no change in his position. He was then given another opportunity to consider his position overnight.
On the morning of 21 July 1993, there was another meeting at which Mr Adams again advised that there was no change in his decision. Mr Harris, after a short fiery exchange, gave Mr Adams a letter dated 20 July 1993, which stated:
"This is to confirm that in accordance with your contract of employment council hereby formally notifies you that as from Wednesday 18 August 1993 your classification as Truck Driver 14/15 tonne at a base rate of $377.70 per week will be changed to Road Worker at a base rate of $312.70 per week and your pay rate will be adjusted accordingly from that date."
Mr Harris then instructed another employee, Mr Poole, to drive the desludge truck and directed Mr Adams to travel with Mr Poole, in order that Mr Adams could undertake the desludge required at the specified location. Mr Adams demanded a written guarantee that he would not be held responsible if the pump failed because he was not trained to use the pump. This request was refused. Mr Harris gave Mr Adams directions as to his duties as operator of the desludge pump. Mr Adams, however, refused to accept responsibility for checking the operation of the pump and oil levels. Mr Harris then advised Mr Adams that on this occasion he would have Mr True check the pump oil level and operation prior to the truck going out. He was also warned that his attitude would not be tolerated any further. Shortly thereafter, Mr Adams returned to Mr Harris and stated that he was not prepared to travel with Mr Poole whom he considered to be too inexperienced to handle the desludge truck on the road in question. Mr Harris then arranged for Mr Turvey to drive the truck and directed Mr Adams to accompany him and do the desludging. He was again advised that this attitude was inexcusable and that he had become a totally unsatisfactory employee.
On 27 July 1993, there was yet another meeting with Mr Harris. Mr Wignell, Mr Greaves and Mr Adams were in attendance. Mr Harris gave Mr Adams copies of the records of the meeting held in the afternoon of 20 July and the morning of 21 July 1993. Mr Harris advised Mr Adams that the purpose of the meeting was to discuss his employment status with the council.
The various incidents during May, June and July 1993 referred to above were outlined again. Mr Adams was told that he had been generally obstructive to management and advised that these matters were of considerable concern to council and management and amounted to Mr Adams "having developed into a totally unsatisfactory employee". The following exchange then occurred between Mr Harris and Mr Adams:
Mr Harris:
"Perhaps you can give me a good reason why I should not terminate your employment with this council and if so I invite you to do so now."
Mr Adams:
"I have nothing to say Mr Harris."
Mr Harris:
"Is that your only defence?"
Mr Adams:
"I have nothing to say."
Mr Harris:
"Can you not give me a good reason at all?"
Mr Adams:
"I told you I had nothing to say."
Mr Harris advised Mr Adams that he proposed to terminate his employment, giving him four weeks' pay in lieu of notice. He was again asked whether he had any comment to make. Again Mr Adams said he had no comment.
The following day, 28 July 1993, Mr Harris wrote to Mr Adams confirming that "in a counselling session" held on the previous day, Mr Harris had reiterated the numerous serious concerns which council had in relation to his conduct and demeanour as an employee of council and confirmed that his employment had been terminated in accordance with his contract of employment, effective from close of business on 27 July 1993. The advice that he would receive four weeks' payment in lieu of notice and his normal entitlements for that period was also confirmed.
Mr Adams hotly contested that he had been involved in any "counselling session" with Mr Harris. He said that a counselling session with Mr Harris amounted to an interrogation. Mr Harris conceded that the concept of counselling was new to him and to council at that time.
It is clear from the following evidence, that Mr Harris was totally frustrated in his attempts to deal with Mr Adams.
"Mr Adams' initial refusal to carry out the duties was based on the fact that I had a skeleton crew, that I was in charge, that I have an enormous job to do and he knew it would disrupt my handling of the workforce under those circumstances."
He was asked whether he was suggesting that Mr Adams intentionally did this to disrupt him. He replied "that's right". He continued:
"I'd reviewed Mr Adams' ethics in the situation. The fact that I had failed to solicit any satisfaction from Mr Adams whatsoever that he would be a cooperative employee regardless of the declassification so I decided to call Mr Adams in and discuss with him those issues and relate to him how I felt about them. I expected to get from Mr Adams some form of undertaking but it was not forthcoming."
"What kind of undertaking?"---"That he would change his attitude towards me and his employer".
He said that the factor which motivated him to terminate Mr Adams was:
"[his] belligerent attitude towards me, his refusal to carry out lawful instructions, his demand of written guarantees that he would not be dealt with as required or disciplined if necessary if he caused damage to the desludge pump, when he knew full well that he was required as the operator to check the oil and those sorts of things ... His entire demeanour, his attitude towards me, his attitude towards authority and his willingness to disrupt the work was what prompted me".
Another factor which affected Mr Harris' attitude to Mr Adams was the fact that after Mr Adams had been taken off his truck driving duties on 22 June 1993, he and Mr Greaves, who was also relieved of his grader driving duties at that time, withdrew from the consultative process which the council had set up and called a stop-work meeting.
WHETHER TERMINATION WAS HARSH, UNJUST OR UNREASONABLE
The sole question for determination in this matter is whether the termination of Mr Adams' employment was harsh, unjust or unreasonable. In Bostick (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, Sheppard and Heerey JJ stated as to the meaning of the words harsh, unjust or unreasonable:
"These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust, or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the affect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct."
Their Honours specifically rejected the proposition that, provided an employer's direction was sufficiently clear and the consequence of disobedience with it clearly brought home to an employee, "dismissal can never be harsh, unjust, or unreasonable".
In Byrne v Australian Airlines Limited (1994) 47 FCR 300, Beaumont and Heerey JJ noted at 331 that:
"It is well established that, for present purposes, where a dismissal is based upon alleged misconduct, the employer will not breach the award if it is demonstrated that, in so far as it was within the employer's power before dismissal, the employer conducted as full and extensive an investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances: see Bi-Lo Pty Ltd v Hooper (1992) 34 AILR 330."
In the present case, some criticism can be made of the manner in which Mr Adams was treated. In the first place, Mr Wignell prejudged the PTO unit incident. Further, in relation to both the PTO unit incident and the rubbish tip incident, Mr Adams was accused of engaging in practices which were practices engaged in by employees of the council. Secondly, in relation to the desludge truck incident on 3 June 1993, the circumstances of the incident, and the annoyance it caused Mr Wignell, were exacerbated by Mr True's conduct which Mr True admitted was inappropriate. Next, Mr Harris made a decision to issue a written warning in respect of the three incidents, prior to having conducted a complete investigation of the incidents. Further, Mr Wignell had informed Mr Harris, falsely, that in respect of the first incident, he had given a verbal warning to Mr Adams. Thus Mr Harris unknowingly invoked his stage of Council's disciplinary procedure when the usual prior procedures had not been carried out. Next, it is significant that there was no cross-examination of the witnesses who supported Mr Adams' version in relation to the PTO unit and desludge truck incidents. Finally, Mr Harris himself conceded that he was not familiar with appropriate procedures of counselling, which is an important process in the disciplining of employees.
On the other hand, Mr Adams conduct was hardly to be commended. It seems apparent, however, that he strongly held the view that there was no point in his being cooperative as his version of events would not be accepted. This attitude also has to be viewed in the light of his knowledge that it had been alleged against him that he had been given a verbal warning when this was not the case. In addition, he had been promised retraining and this had never occurred.
I am of the opinion, in all the circumstances, that this is one of those unfortunate cases where the result may well have been different had the matter been handled differently.
However, because of the circumstances to which I have referred, including the deficiencies in procedure, I am of the view that Mr Adams's dismissal was unreasonable. The respondent therefore breached cl 6 (f). However, the breach was far from blatant. In my opinion, it arose, in large measure, from the frustration Mr Harris felt in dealing with a difficult employee. The maximum penalty which may be imposed under the Act is $500. Because of the view which I have taken of the respondent's conduct, I consider that a minimum penalty
should be imposed. In all the circumstances, I consider that the appropriate penalty is $50.
I certify that this and the
preceding twenty-six 26 pages
are a true copy of the Reasons
for Judgment herein of her Honour
Justice Beazley.
Associate:
Date: 14 September 1995
Counsel and Solicitors Mr R. Castiglione
for Applicant: Messrs Dwyer and Durack
Counsel and Solicitors Mr S. R. Edwards
for Respondent: Western Australian Municipal Association
Dates of Hearing: 27 & 28 March 1995
Date Judgment Delivered: 14 September 1995
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