Andrew Robert Blight v Transfields Construction Pty Ltd

[1995] IRCA 692

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - claim for UNLAWFUL TERMINATION - whether there was a VALID REASON for the termination - whether the termination was HARSH UNJUST OR UNREASONABLE

INDUSTRIAL RELATIONS ACT 1988, ss.170DE

ANDREW ROBERT BLIGHT -V- TRANSFIELDS CONSTRUCTION PTY LTD

No. SI 95/1316

JUDICIAL REGISTRAR:                   L FARRELL
PLACE:  ADELAIDE
DATE:  21 DECEMBER 1995

INDUSTRIAL RELATIONS COURT             )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY           )

No SI 95/1316

B E T W E E N:

ANDREW ROBERT BLIGHT

Applicant

- and -

TRANSFIELDS CONSTRUCTION PTY LTD

Respondent

MINUTES OF ORDER

BEFORE:JUDICIAL REGISTRAR  FARRELL

PLACE  :           ADELAIDE

DATE             :           21 DECEMBER 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 DISTRICT  REGISTRY          )

No. SI 95/1316

B E T W E E N:

ANDREW ROBERT BLIGHT

Applicant

- and -

TRANSFIELDS CONSTRUCTION PTY   LTD
  Respondent

BEFORE         :          JUDICIAL REGISTRAR FARRELL

PLACE                      :ADELAIDE

DATE             :21 DECEMBER 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act (1988). The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement.

The Applicant was employed by the Respondent as a marine painter from 8 March 1995 until 18 July 1995.  On 18 July 1995 his employment was terminated because he had been often late, failed to notify the employer of when he would be late or was absent and because he was absent without leave from work.

I accept the evidence of the Respondent that the Applicant had been warned about these matters on 2 December 1994.  He was given a final warning on 8 March 1995.  His performance was subject to review on 6 June 1995.

The evidence of the Respondent’s witnesses was that on 6 June 1995 a request was made by Mr Western, Union delegate that the final warning be lifted.  No assent was given to that request and later that day the Applicant was told by Mr Evans, his supervisor, words to the effect that he would still be watched.

The evidence of the Applicant’s witnesses was that Mr Sloan, project manager, had nodded his assent to the request of Mr Western and that no conversation had taken place between the Applicant and Mr Evans on that day.  I preferred the evidence of the Respondent’s witnesses in relation to the events of that day.

On 17 July 1995 the Applicant was absent from work and did not contact the Respondent on that day.  On 18 July 1995 the Applicant telephoned Mr Sloan approximately three hours after his shift had commenced to advise that he would be late for work and that his sister was supposed to call the day before because his car had become bogged on 16 July 1995 outside of Renmark and could not be moved until 17 July 1995.

When the Applicant arrived at work on 18 July 1995 he was interviewed by Mr Sloan and Mr Evans in the presence of another employee, Mr James.  I accept the evidence of the Respondent’s witnesses that the Applicant was given an opportunity to explain and justify not just the events of the last two days but also his recent history of attendance at work.  Following the interview of the Applicant, his employment was terminated and he received the appropriate payment in lieu of notice.

It was not argued by the Applicant that there was a breach of Section 170DC of the Act and in my view there was no breach of Section 170DC.

In my view the termination of the Applicant’s employment was for a valid reason.  His history of later attendances, inexcusable absences and failure to notify the employer with only patchy improvements following warnings warranted the termination of his employment.

In my view the termination of the Applicant’s employment was no harsh unjust or unreasonable.  Appropriate procedures were followed prior to the termination of his employment. Whilst the applicant could explain his absence on 17 July 1995 I do not regard his explanation for failing to ensure that the Respondent was advised of his absence on that day as adequate.

In my view the Applicant’s arguments that the Applicant was treated less favourably than other employees of the Respondent was not proven on the evidence before me.

I therefore dismiss the Application.

I certify that this and the preceding page is a true copy of the reasons for my judgment.

DATE OF HEARING             :          7 & 8 December 1995

FOR THE APPLICANT          :          Mr Harrison

FOR THE RESPONDENT      :          Mr Short