Anthony Raffoul and National Union of Workers v R F McLaughlin and Consolidated Fishermen (Aust) Pty Ltd

[1996] IRCA 87

DECISION NO:   87/96

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -  whether termination for VALID REASON of CONDUCT OR PERFORMANCE - whether termination HARSH UNJUST OR UNREASONABLE - whether PROCEDURAL FAIRNESS

Industrial Relations Act 1988, ss 170EA, 170DE(2), 170DC

Nicolson v Heaven & Earth Gallery Pty Ltd 1 IRCR 199

ANTHONY RAFFOUL and NATIONAL UNION OF WORKERS v R F MCLAUGHLIN & CONSOLIDATED FISHERMEN (AUST) PTY LTD
VI 5312 of 1995

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  19 MARCH 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5312 of 1995

B E T W E E N:

Anthony RAFFOUL and
NATIONAL UNION OF WORKERS
Applicants

A N D

R F McLAUGHLIN &
CONSOLIDATED FISHERMEN (AUST) PTY LTD
Respondent

MINUTES OF ORDERS

19 March 1996   PARKINSON JR

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

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5312 of 1995

B E T W E E N:

Anthony RAFFOUL and
NATIONAL UNION OF WORKERS
Applicants

A N D

R F McLAUGHLIN &
CONSOLIDATED FISHERMEN (AUST) PTY LTD
Respondent

REASONS FOR DECISION

19 March 1996  PARKINSON JR
This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent as a labourer at its operations located at the Melbourne Fish Market. The employment commenced in May 1993 and was terminated on 12 October 1995.

The applicant was originally employed as a casual employee and was then given permanent employment when a vacancy became available. His duties were of a general labouring type, however when he became injured as a result of a back problem, he was assigned to duties involving lighter or less frequent lifting.  During the course of 1993 the respondent, on the applicant’s recommendation, employed a friend of the applicant.  This employee, Mr Finnerty, became a valued employee of the respondent and ultimately was appointed to a supervisory position.  This position required that he directly supervise the work of the applicant, and that the applicant work according to his direction. The termination of the applicant’s employment occurred on 12 October 1995 when, as a result of a dispute between the applicant and Mr Finnerty, the latter informed the applicant that he was unable to continue to accept the applicant’s abuse and undermining of his authority as a supervisor. It is appropriate to set out the background to this incident and the employment history.

The history of the employment was that there had been a number of incidents between the applicant and Mr Finnerty since the time that the latter had become  his supervisor. Mr Finnerty’s evidence was that these incidents included disregard or refusal of instructions and undermining his authority in front of other employees. His evidence was that it was also not unusual for the applicant to abuse him in front of other employees.

There were also other incidents in the employment history relied upon by the respondent as establishing a pattern of unacceptable and unsatisfactory conduct constituting valid reason for the termination of employment. The evidence was that the applicant was the subject of numerous warnings as to his behaviour, including his attitude towards supervision, his conduct towards other employees, including his abuse of the managing director of the respondent, and his frequent refusal to perform various tasks asked of him.

The applicant acknowledged that there had been occasions when he had refused to perform certain jobs, but that this had been because he alleged the work was unsafe or inappropriately being conducted at those premises. The applicant did not in his evidence suggest that he had raised these safety issues with Mr Finnerty. In so far as the other matters were concerned, his response was that he was behaving in a reciprocal manner to that directed to him by others. I do not accept this to be the case. One incident which he did however acknowledge as in part his own responsibility was an incident which resulted in a formal written warning being issued to him on 13 September 1994.  The incident complained of occurred when the applicant, having been reprimanded by the respondent’s general manager, Mr Wallis as a result of an unauthorised absence, lost his temper and deliberately damaged company property, including a telephone and a motor vehicle.  The letter of warning (exhibit R2) clearly spells out to the applicant that the consequences of any repeat of such or similar conduct would be termination of employment. The evidence was that the applicant’s response to receiving this warning letter was to again react angrily and to abuse Mr Wallis. The respondent however, notwithstanding the warning letter which preceded the abuse, again tolerated the conduct and declined to act.

It is against the above background that the incident on 12 October 1995 occurred and resulted in the termination of the applicant’s employment. The incident complained of involved the applicant being warned by Mr Finnerty as to his lateness in clocking on that day and on a previous occasion.  The evidence of Mr Finnerty was that he chose to undertake this warning task in a location where it could be done in a quiet and understated manner. This was because he was concerned that the applicant would react negatively to the warning, and he wanted to avoid a confrontation. The applicant’s account of what occurred is that Mr  Finnerty was confrontationist, and directed offensive language towards him in administering the warning and afterwards.

I am satisfied however that it was the applicant who became hostile and angry and abusive towards Mr Finnerty, and after they had left the tea room used aggressive and offensive language towards Mr Finnerty. I am also satisfied that in the course of discussions with Me Wallis in relation to the termination of his employment, the applicant made allegations about Mr Finnerty’s conduct both in relation to that matter and other unrelated and unsubstantiated issues. The evidence of Mr Finnerty and Mr Wallis, and the evidence as to the history of the applicant's conduct in the workplace, including the warning letter and the applicant’s own acknowledgment in part of previous incidents,  suggests that the preferable version of the events is that of the respondent's witnesses, and I accept that this is so.

I prefer the evidence of Mr Finnerty as to the circumstances of the warning.  I am satisfied that Mr Finnerty, for various reasons which were outlined in his evidence,  had felt a great deal of loyalty towards the applicant and had for a long period of time tolerated conduct from him which was rude and dismissive and calculated to undermine his authority as a supervisor in front of other employees. I accept that whilst Mr Finnerty became angry in response to the applicant’s conduct on 12 October,  it was not he who initiated the abuse which occurred as a result of the warnings being given. 

It is appropriate at this point to discuss the submission on behalf of the applicant that the use of colourful language in the workplace was common in the course of most conversations. There is no doubt that this is so, and were the applicant being terminated for the use of rough language it may well be that the termination would not be for valid reason.  In the circumstances of this workplace, swearing of itself would not constitute misconduct and it would be precious to suggest that it did. However, it was not the actual language used by the applicant which was complained of but the offensive and intimidatory manner in which it was used and directed, and that is quite a different matter. It was the conduct of the applicant overall which was of concern to the respondent.

I am satisfied that the conduct of the applicant was unacceptable and that the incident on 12 October was not isolated, but was a continuation of conduct for which the applicant had been previously and frequently warned verbally and in writing. I am satisfied that the respondent was entitled to terminate the employment of the applicant as a result of the applicant’s misconduct. The respondent had valid reason for the termination of the applicant’s employment. I turn now to consider the operation of s170DE (2) and s170DC.

It was submitted on behalf of the applicant that the termination of the employment was harsh, unjust and unreasonable because there was a failure to give the applicant an opportunity to be heard in relation to the decision to terminate his employment for misconduct. In this regard reliance was also placed on the obligations arising under s170DC of the Act.

I turn first to consider the circumstances of the termination and the interviews and discussions which occurred at that time. This is a case where the applicant was already aware that a final warning existed in relation to his conduct.  The evidence is that after being sworn at and abused by the applicant,  Mr Finnerty said words to the effect that " Raff, I've had enough, you've done it again undermining my authority and I'm going to see Wallis to see whether you should remain working here". After consulting with Mr Wallis, Mr Finnerty informed the applicant that he was being given a weeks notice, but that he was to leave immediately. The applicant then said "if I'm going , you're going." The two then went to Mr Wallis' office where the matter was discussed and various allegations were made against Mr Finnerty by the applicant.  I am satisfied that this is an accurate construction of the events as they occurred.  When in Mr Wallis’ office both parties were heard in relation to the incident. Mr Wallis, seeking to diffuse the situation, informed the applicant that he was to go home and that he would contact him later.  The purpose of this, according to Mr Wallis, was to calm the situation down in view of the applicant’s propensity to violent outbursts,  and to enable him to establish the circumstances of the incident by making inquiries of other employees.  His evidence was that he made such enquiries and was satisfied that the applicant had acted in the manner described to him by Mr Finnerty and that his conclusion was the termination of employment should stand.

A number of attempts were made by Mr Wallis that day to contact the applicant at his home by telephone, these occurring at 7.00pm, 10.00pm and 11.30pm.   The last attempt at 11.00pm was successful and the applicant was informed that the termination of employment stood and that he was not required to work out the notice period. Subsequently an additional weeks payment for notice was made in compliance with the requirements of s170DB of the Act.  The respondent confirmed the termination of employment in writing to the applicant by letter dated 13 October 1995 which was sent to the last known address of the applicant recorded on the respondent’s files.  When they subsequently became aware of the applicant’s change of address, a copy of that letter was sent to the new address.

It was submitted on behalf of the applicant that there was no opportunity for the applicant to be heard in relation to the specific reasons for termination set out in Exhibit A3. It was submitted that each of the allegations contained in that letter had not been put to the applicant specifically and that he had not had an opportunity to respond either to those allegations or fully to the incident of  12 October.  In the context of the discussions with Mr Finnerty and Mr Wallis over the period of the day, I do not accept this is the case.  The evidence is that Mr Finnerty expressed the reason for the termination as being the applicant’s repeated conduct towards him and the particular incident of that day. The evidence is that the applicant was aware of the final warning notice.  The respondent heard the applicant’s version of the events on the day and I am satisfied the applicant well appreciated that management viewed his conduct as being the final straw in a long series of events. The respondent also made inquiries in the workplace as to the matters.  In the circumstances, there was not a failure to give the applicant an opportunity to respond to allegations as to his conduct. He had that opportunity by face to face meetings with both his direct supervisor and the General Manager, Mr Wallis. It is appropriate to refer at this point to the oft quoted extract from Nicolson v Heaven & Earth Gallery Pty Ltd 1 IRCR 199 at 209 where, in considering the application of s170DC, the Chief Justice observed:

The paragraph does not require any particular formality. But this
           does not mean that it is unimportant or capable of perfunctory
satisfaction. Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as “natural justice” or more recently “procedural fairness”. The relevant principle is that a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.... The principle is I believe well understood in the community. It represents part of what Australians call “a fair go”. In the context of s 170DC, it is not to be treated lightly.

I am satisfied that the respondent did all that was required of it in this regard. I am not satisfied that the termination of employment was harsh, unjust or unreasonable for procedural reasons, nor am I satisfied that there was any failure to comply with the requirements of s170DC of the Act.

There is one further aspect to these proceedings which ought be addressed in this decision.  The applicant was a person who had been given numerous opportunities by the respondent and an enormous amount of leeway in relation to his conduct.  There was a tolerance of his conduct and behaviour which is not usual in a workplace, and I am sure that this was as a result of him being an excellent worker when he was so inclined, together with a reluctance in the respondent’s managers, particularly Mr Finnerty and Mr Wills, to do him harm.  I am of the view that there was genuine concern for the applicant, and as a result of this much of his conduct was tolerated for longer than would be reasonably expected.

The applicant was however not able to control his temper, and his extreme reaction to events resulted in the position of the respondent becoming untenable.   In the circumstances there was no alternative to the decision to terminate the employment as and when it occurred and I am satisfied that the termination of employment was not in this regard harsh, unjust or unreasonable. 

For the reasons set out above the application is dismissed.

I certify that this and the preceding eight (8) pages
is a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate:
Dated:  19 March 1996

APPEARANCES

Representative appearing for the applicant:  Mr M Pakula
  National Union of Workers

Solicitors for the respondent:  Wisewoulds
Counsel appearing for the respondent:  Mr R Squirell

Date of hearing:  7 March 1996