Amprimo v T W and K F Blackwell Pty Ltd
[1996] IRCA 338
•01 August 1996
DECISION NO: 338/96
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1206 of 1996
B E T W E E N :
PETER ALFRED PAUL AMPRIMO
Applicant
AND
WAVERLEY LIGHTING
Respondent
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 1 August 1996
EX-TEMPORE REASONS FOR JUDGMENT
The applicant, as a result of a motor vehicle accident, has certain physical disabilities and acquired brain injury. His acquired brain injury has resulted in significant short term memory loss. In October 1995, the applicant, who had, except for some short term training positions, been unemployed for some years, responded to the respondent's advertisement for a trainee clerical assistant position. The respondent is a small company involved in the electrical and lighting industry. Its Managing Director is Mr Blackwell, a former electrician, who appeared for the respondent in the proceedings. The company employs a manageress for a retail lighting shop, Mr Blackwell's daughter as a book keeper, and a couple of electricians who service domestic customers throughout the metropolitan area.
The position advertised by the respondent was under a wage subsidy scheme and was to assist in the shop as required, to take phone calls from customers, process the resulting jobs and order various parts. The applicant was originally requested by Mr Blackwell to attend at the work place for a couple of days as a trial. He was then offered the position. In evidence was a Job Start Wage Subsidy Agreement dated 13 November 1995 (Exhibit A1). Under that agreement, the fine print of which Mr Blackwell admits he has not read, the respondent is committed to using its best endeavours to provide ongoing employment to the applicant for a minimum of three months after the six months duration of the agreement. The agreement also provides for a one month probation period.
The applicant's work performance.
Mr Blackwell gave evidence that at some stage in the first month of employment he was told by the applicant that he had a short term memory problem. The applicant said he told Mr Blackwell this at the pre-employment interview - it is common ground that Mr Blackwell was aware of it. After the employment commenced Mr Blackwell said that the applicant had a lot of difficulties performing the job. He would leave customers waiting at the counter, could not remember the price of globes, failed to properly record jobs, and misplaced notes that he had left for himself following telephone calls. Mr Blackwell and the other two staff members sought to help the applicant with the job. Mr Blackwell said “he spoke to him every day on how we can help him”.
As far as Mr Blackwell was concerned, nothing worked. It got to the stage that, although Mr Blackwell gave the applicant 100 per cent for enthusiasm, he was unable to persevere with him. He said that he gave the applicant about four verbal warnings that he should pull his socks up and that he was not doing his job. The applicant denied any warnings in these terms. He said that there were no discussions about his performance, although he admitted he had made mistakes. Ms Tiralosi, the manageress of the store, said that she had discussed the applicant's deficiencies with Mr Blackwell. She heard no formal warnings, but assumed they had been given. Mr Blackwell's daughter, Ms Brackenreg, who works as a book keeper, said that Mr Blackwell gave the applicant two warnings. She was vague on the details.
The matter that precipitated the applicant's departure was the use of a computer package. Mr Blackwell had shown the applicant how to work the particular package on a number of occasions, but the applicant had failed to learn it. On 15 January 1996, Mr Blackwell again showed the applicant and he was unable to master it. Mr Blackwell, as well as the other staff, were fed up. By then Mr Blackwell had had enough. He decided to dismiss the applicant. The following day the applicant in fact asked Ms Brackenreg for some extra assistance to learn the package but she was unable to do so that lunchtime. That afternoon the applicant was given a week's notice.
The applicant called evidence from Dr David Smith, a forensic psychologist. He commenced seeing the applicant in November 1995. He was seeking to assist the applicant's transition back to the work force, and was giving him strategies to learn new skills. His evidence was that the applicant was able to learn new skills. He needed to use particular strategies to process new information, and would be assisted in processing new information by the way that it was presented.
Findings.
There are only a limited number of areas where findings are necessary to dispose of this matter. The first is the nature of the position. By virtue of the job advertisement (Exhibit A2), this was a trainee position. Mr Blackwell said he understood that. Next, the applicant told Mr Blackwell that he did have a short term memory problem. I am satisfied that Mr Blackwell sought some further information from the CES and from another organisation WorkBridge, as to how to address the difficulties that the applicant was having. The nature of the advice given did not emerge in the evidence. As to the applicant's performance, I find that his level of performance was deficient. The extent of that deficiency was less than that painted by the respondent, but I am satisfied that there were enough instances of failure to properly process jobs, failure to order parts, and customer complaints, to cause Mr Blackwell to become concerned as to the applicant's long term viability as his employee. Unfortunately for Mr Blackwell, the applicant did not assist by advising him that he had sought the assistance of Dr Smith who may have been able to assist Mr Blackwell to solve the problems that were emerging. On the question of warnings, I find that no warnings of a formal nature were given by Mr Blackwell. It is perhaps understandable that he did not do so. He admitted he gave no written warnings. Given his knowledge of the applicant's short term memory problems, he should have known that he would need to put a matter such as a warning in writing in these circumstances. I am satisfied that the computer package difficulties became the straw that broke the camel's back. Mr Blackwell, ignorant of a learning approach that the applicant could accommodate, admitted he put a bit of pressure on him; when he failed, the inevitable occurred.
It is important to record that the purpose of the Industrial Relations Act (“the Act”) is to ensure that employees whose services are terminated are treated in a fair and reasonable manner to enable them to retain confidence in their self worth, and to reduce the prospect that they will have to rely on relief payments from the public revenue. In other words, the Act has imposed requirements that employers act reasonably in the way they deal with their employees. The Act thus gives employees a measure of job security or job protection. The Act however must be applied in a practical manner in a work place where employees and employers have duties and responsibilities.
Here Mr Blackwell, who impressed as a fair minded man with a genuine commitment to providing the applicant with a job, admitted he was unaware of the fine print of the Job Start Agreement. He was left by the applicant in some ignorance of the details of the counselling he was being given by Dr Smith. Mr Blackwell, however, made some endeavours to obtain assistance from the CES and WorkBridge. What I am satisfied he failed to do in the circumstances was to give the applicant what has been described as a “fair go” at the very end of the employment relationship. He knew the applicant had a short term memory problem. He did not explore in enough depth with the applicant the implications of that problem for the trainee position to which he had appointed him.
He could have done this by giving the applicant a written warning, or saying to the applicant that the relationship appeared not to be working out, and thus inviting the applicant to mention the assistance he was receiving from Dr Smith. He could have mentioned that he had spoken to the CES and Work Bridge. It had to be done. That is what a reasonable employer should have done because Mr Blackwell had taken no real action during the one month period of probation that was contained in the Job Start Agreement. Instead unfortunately, perhaps understandably, Mr Blackwell lost patience with the applicant, particularly over the computer package.
I am satisfied that the highest Mr Blackwell's discussions with the applicant reached prior to the termination were what could be classed as “exhortations to improve”. Given that the probation period had passed, and given the short term memory problems of the applicant, Mr Blackwell could have taken the relatively simple step of a written warning so that there was no misunderstanding. Such a written warning is not always necessary, but here I am satisfied it should have been given.
Under the Act the employer carries the onus of proof that it had a valid reason to terminate the employment. For the reasons that I have just discussed, the respondent did not have a valid reason to dismiss the applicant.
If I am wrong about that, I am also satisfied that the respondent breached the prohibition contained in s170DF(1)(f) of the Act. The respondent carries the onus of proof on this point. My reasons for concluding that the respondent has not discharged its onus of proof that the applicant's mental disability was not a reason for its termination are that Mr Blackwell said in his evidence that he told the applicant after he gave him notice “you have a lot of problems”, “this is not working out”, and “we can't solve the problems”. The immediate problem that Mr Blackwell was referring to was the inability of the applicant to learn the computer package. Mr Blackwell admitted he had put the applicant under a bit of pressure, and would have refused the applicant's request to take notes. The applicant mentioned his short term memory problem, and the applicant said that it was “not going to get any better”. Mr Blackwell said that he “couldn't handle it any more”. Mr Blackwell also said that he disproved the applicant's claim that, although his short term memory was deficient, he was able to remember things the next day. This was on the basis that the applicant had been unable to master the computer package.
When this evidence is taken into account, I am not satisfied that the applicant's mental disability, namely, short term memory impairment, was not a reason for his termination. It follows that the respondent has breached s170DF(1)(f) of the Act unless it can rely on s170DF(2) of the Act. This provides that a prohibited reason can be a reason if the reason is based on the inherent requirements of the particular position. Thus a reason based on, inter alia, mental disability, can be a reason provided it is based on the inherent requirements of the particular position. It has been held that as this is a defence it should be narrowly construed. In any event, I am not satisfied that the inherent requirements of this position are such that the applicant's mental disability preclude him from the discharge of that position. The respondent has not made out the defence in s170DF(2) of the Act.
Remedy.
When a breach of the Act is made out, the Court is given a discretion, when reinstatement of the employment relationship is impracticable, to order that the respondent pay the applicant compensation. Here, it is common ground that reinstatement is impracticable.
I am satisfied that it is appropriate that there be an order for compensation here. The respondent has, for reasons I have already indicated, fallen below the standards that are expected of a reasonable employer in the circumstances - it has breached the Act. As a result of that breach, the applicant has sustained losses that exceed $11,000. Here I am satisfied, however, that the proper way to assess compensation for the breach of the Act is on the basis of what would have happened had the unlawful termination not occurred. In other words, what was the probability that the employment would have endured had the employer not acted unlawfully.
In this small work place, that probability was not high. There were deficiencies in the applicant's performance that were a cause of aggravation to Mr Blackwell and the other two witnesses called. There had been complaints. Had Mr Blackwell approached the matter properly by a system of warnings, the applicant may have improved his performance. He may not, however, have reached a level that Mr Blackwell deemed satisfactory. I am of the opinion that the applicant's employment would not have lasted more than another two months. In making this assessment, I have taken into account the fact that at the time of his dismissal, the applicant had not told Mr Blackwell about Dr Smith. There was a significant chance that that information would not have been provided to Mr Blackwell, or even if it was, Mr Blackwell would not have been able to process it and alter his approach.
I therefore propose to award compensation of two month's pay at the rate of $382.10 per week, a total of $3,312.00.
Overtime.
The applicant claimed $308.99 for overtime. This arose because, without formally claiming overtime, he worked longer hours to discharge his duties. This is another example of a lack of communication between the parties that led me to the conclusion that the employment relationship would not have long endured. The applicant has however satisfied me that to the knowledge of Mr Blackwell he did work those extra hours, and he is therefore entitled to be paid for those hours as set out in the statement of claim, and I will make an order that that amount be paid.
MINUTES OF ORDERS
THE COURT ORDERS THAT :
The respondent, pay to the applicant the sum of $3,312.00 pursuant to s170EE(2) of the Act
The respondent pay to the applicant the sum of $308.99.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding eight (8) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.
Associate:
Dated: 1 August 1996
Solicitor for the Applicant: Vivienne Wiles, Job Watch Inc.
Counsel for the Applicant: Ms Melinda Richards
Appearing for the Respondent: Mr Terry Blackwell
Date of hearing: 31 July and 1 August 1996
Date of judgment: 1 August 1996
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - CONDUCT AND PERFORMANCE - INJURY -INTELLECTUAL DISABILITY - WARNING - COMPENSATION - employee with short term memory loss dismissed without proper warning - whether mental disability was a reason.
Industrial Relations Act 1988 ss.170 DF, 170EE
PETER ALFRED PAUL AMPRIMO -v- T W & K F BLACKWELL PTY LTD (t/a WAVERLEY LIGHTING)
No. VI 1206 of 1996
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 1 August 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1206 of 1996
B E T W E E N :
PETER ALFRED PAUL AMPRIMO
Applicant
AND
WAVERLEY LIGHTING
Respondent
MINUTES OF ORDERS
Judicial Registrar Murphy 1 August 1996
THE COURT ORDERS THAT:
The respondent, pursuant to s170EE(2) of the Act, pay to the applicant the sum of $3,312.00;
The respondent pay to the applicant the sum of $308.99.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
0
0
0