Armstrong v York International Australia Pty Limited

[1996] IRCA 408

DECISION NO: 408/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY  No.    AI  1027   of   1996

DAVID ALLAN ARMSTRONG
Applicant

YORK INTERNATIONAL AUSTRALIA PTY LIMITED (A.C.N. 009 420 080)
Respondent

Coram:         Judicial Registrar Linkenbagh
Place:            Canberra
Date:             28 August 1996

REASONS FOR JUDGMENT

(Delivered ex tempore and revised from the transcript)

This is an application pursuant to the provisions of Section 170 EA of the Industrial Relations Act 1988. The applicant was employed as an Airconditioning/Refrigeration mechanic by the respondent between 27 July 1987 and 8 January 1996. The applicant's work history was apparently without incident until August 1995, when an issue arose which consequentially led to the termination of his employment. On 25 August 1995 Mr Daley, the recently appointed Manager of the respondent's business in the Australian Capital Territory, issued to the applicant a document headed "York (ACT) Australia Employment Policies" and that document summarised the terms and conditions of the applicant's employment. Amongst other things, it provides:

You will be required to be on the after hours roster for one week interval during various months.  A full list of dates, days and times will be supplied and updated by our controller.  For each period of one week you are on "after hours" you will receive $100 extra to your wage.  The minimum after hours call out is four hours double time and each hour after that is at double time rates.

The respondent's business is the installation and maintenance of airconditioning and refrigeration equipment.  As part of its service to its customers it provides a 24 hour service facility.  One of the technicians employed by the respondent is on-call by way of a pager at all times outside normal hours and if a call is made to that technician, the technician attends at the premises, assesses the cause of the call, and makes the equipment safe, until any work necessary can be done during normal business hours.  The evidence is that up to August 1995 the technicians, in effect, arranged their own roster for the on-call work and some of them were on the roster and some of them were not.

When Mr Daley took over as Manager in August 1995, he elected to regularise the position regarding the roster by requiring all the technicians to take their place on the roster, on the understanding that each technician would be rostered for a week at a time on a rotating basis, but that if particular technicians wished to alter the arrangements for which they were rostered, they could do so by a private arrangement with another technician.  The applicant took issue with the requirement of Mr Daley that he participate in the roster.  He had elected not to participate in the roster prior to August 1995 and he adopted the standpoint that because he had not participated in the roster in the past he was not to be required to do so in the future.

The issue escalated to the point where the respondent engaged in discussions with the applicant, the applicant's Union and the Confederation of Industry in the Australian Capital Territory, in an attempt to resolve the impasse.  There were meetings held in October, November and December 1995 and there were letters written to the applicant which are exhibits “E” “F” “G” “H” and “L”.  The discussions and letters, from the respondent's point of view were on the basis that the applicant was required to be required to take his place on the roster.  Exhibit “J” is a copy of the roster from 16 October 1995 to 28 January 1996 and it shows that the applicant was rostered for the week 8 January to 14 January 1996.

In the discussions in the last three months of 1995 the applicant failed to provide to the respondent any reason for his not co-operating with the request that he go onto the roster, other than to assert that he had not been on it before and ought not be expected to be on it now.  The discussions produced no result and eventually the applicant was on notice that if he did not agree to participate in the roster for the week commencing 8 January 1996, his employment would be terminated. 

He failed to give that assurance to his employer and at a meeting on 8 January 1996, his employment was terminated.  At that meeting, there was mention for the first time of some matters personal to the applicant, and the applicant declined to provide any details of those matters, being of the view then, and at this hearing, that he was not obliged to tell his employer any details of matters personal to himself.

Also at the meeting on 8 January 1996, there was what might be described as a threat by the Union that if the employer carried out its intention to terminate the employment of the applicant, it would initiate Industrial action which would take the form of denying access to building sites in Canberra.  The applicant agreed in cross-examination that that threat had been made.

The respondent put its intention to terminate the employment of the applicant into effect by a letter dated 8 January, a copy of which is attached to the Application in these proceedings.

The applicant must demonstrate that the respondent is in breach of its obligations under the legislation if he is to succeed in his application.  He argues that he did not have the necessary skills to enable him to participate in the roster.  I have heard the evidence of the applicant and particularly the evidence of Mr Watts for the respondent, as to the range of duties and frequency of actual call-outs, and I am satisfied that the applicant was not or could not be said to have been precluded from being requested to do after hours call-outs because of any lack of skill, expertise or experience on his part.   I also note that the applicant did not raise that issue as a reason for his refusal to participate in the roster at any time. 

The applicant also argues that he had a medical condition which prevented him from engaging in the roster.  That medical condition resulted from an injury at work on 8 November 1995.  There is no doubt that the applicant suffered an injury on that day.  The respondent wrote a letter to the applicant on 20 November, and exhibit “L” is a copy of that letter.  It informed the applicant that he would be required to carry out duty on the after hours roster, and that failure to do so would result in instant termination of his employment.  It also informed him that the respondent was aware that the applicant’s doctor had certified him to be fit for light duties.  After he received that letter the applicant apparently arranged for his treating specialist, Dr McGrath, to forward a letter to the respondent, which is exhibit “C”.  In that letter, Dr McGrath notes that the applicant is unable to lift heavy weights or work in awkward positions on a frequent basis.  The doctor indicates an understanding that the applicant had been asked to work after hours on a general roster, and expresses a view that he did not think that that was appropriate until the applicant's rehabilitation was complete.  The doctor goes on to say: "As explained to me, the after hours roster would involve non-restricted activities which would create a physical hazard for his spinal injury."  There is no doubt that the doctor wrote that letter based on what he was told by the applicant.

The evidence satisfies me that the doctor's assertion that the after hours roster creates a physical hazard for the applicant's spinal injury and the suggestion that he would be required to lift heavy weights and work in awkward positions was not based in fact.  The respondent, being aware of that, wrote to the doctor on 14 December and that letter is exhibit “D”.  The respondent there expresses concern that if the applicant is unfit for inclusion in the after hours roster then perhaps he is unfit for all duty.  That letter is in very clear terms, seeking clarification from the doctor as to his meaning, and I note that the doctor did not respond.  I also note more importantly in relation to the medical issue that the applicant did not raise it directly with the respondent as a reason for his failure to agree to be on the roster.

I find that the applicant's true motive in failing to agree with the request of the respondent was that he personally did not wish to be on the roster and saw no reason to explain that personal preference to the respondent. I also note the evidence of the applicant in relation to matters discussed at a meeting which took place on 10 November 1995.  That date was two days after the applicant's injury and it would have been a perfect opportunity for the applicant to seek - to suspend the issue or to be taken off the roster because of the injury he had sustained on 8 November if the consequences of the injury had been an important matter to him at that time.

One of the issues the applicant raised at that meeting was that in his view those participating on the roster should be paid equal wages.  There are about 10 technicians employed by the respondent and the wages paid to each of those technicians for ordinary hours worked in their daily work for the respondent varies from one to the other.  The applicant made an issue at the meeting on 10 November, on his own evidence, that it was his view that everyone participating in the roster should be paid at the highest rate of any of those participating in the roster rather than being paid at the rate applicable to them in the course of their ordinary hours.  It is my finding that the applicant had that issue on his agenda and that that was an issue which was motiving him on 10 November 1995.

The applicant argues that Clauses 57 and 59 of the Metal Trades (ACT) Award are relevant in these proceedings.  Clause 57 is headed, "Introduction of Change" and imposes on an employer which has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, to notify that decision to the employees who may be affected and to involve those employees in the steps leading to implementation of those changes.

Clause 57(A)(2) defines “significant effects” as including..... “the alteration of hours of work”.  The applicant argues that the procedure contemplated in Clause 57 should have been followed in this case.  I cannot agree with that.  The respondent must be free, as all managers must be free, to manage its business in the way it thinks best.  A change to arrangements for an after hours call roster cannot, in my view, fall within the definition:

A definite decision to introduce major changes in production, program, organisation, structure or technology.

I am therefore of the view that Clause 57 is of little relevance to these proceedings.  In any event, the evidence before me clearly is that the respondent did engage in discussions with the applicant, or attempt to engage in discussions with the applicant, once it was made aware by the applicant that he was not happy with the manner in which his duties were restated in the letter of 25 August 1995.  Certainly he was not consulted by the employer before the letter was written, but the employer, on the evidence before me, did more than was necessary to engage in discussions with the applicant once it became aware that the roster issue was an issue of particular concern for him.

Clause 59 of the Award is headed "Avoidance of Disputes" and it sets out a procedure which is a fairly standard procedure in Awards for dealing with disputes or claims arising between employers and employees.  Little assistance can be gained from Clause 59 in these proceedings.  The applicant created an issue of the question of his inclusion in the after hours roster. Whether or not the difference of opinion between him and respondent can be categorised as a dispute or claim to which Clause 59 ought to have applied is beside the point because the applicant did not follow the procedures set out in Clause 59 inasmuch as the respondent did not.

The applicant had the opportunity under Clause 59(e), if he or his Union was of the view that the issue was a dispute to which that Clause applied, to take the matter to the Australian Conciliation and Arbitration Commission and that was not done.  The respondent, as I have said, engaged in discussions with the applicant and his Union and involved the employer organisation in those discussions.  The respondent made its position very clear.  The applicant did little to contribute to the discussion and certainly did not discharge any duty that he may have had, or may be seen to have had, to negotiate within the provisions of Clause 59.

I am therefore of the view that this application must fail.  The facts indicate an attitude on the part of the applicant of non co-operation with his employer and his attitude which created an issue out of something which need not have been an issue at all.  I have observed the applicant in the witness box and it is my conclusion that the attitude which he took in the matter was obstructive.  He was not co-operative with his employer in attempting to explain himself or his reasons or to sort out the impasse which he had created himself with his employer.

It might be said that the employer took a firm view and contributed to the matter’s reaching the status of an impasse.  However, it seems to me, from observing the witnesses, particularly the applicant and Mr Daley, that the attitude of the applicant prevented the softening of the negotiations so that some reasonable solution might have been worked out.  The applicant maintained his attitude and his non co-operative stance, notwithstanding the very clear terms of letters written to him indicating that his employment was in jeopardy.  That attitude on the part of the applicant indicates to me that this employment relationship had broken down in any event.  The applicant was not motivated to be conciliatory or to work towards obtaining a solution which would preserve his relationship with his employer and he destroyed that relationship.

I have doubts about the bona fides of the applicant in his expression during this hearing of the reasons for which he did not participate in the roster.  Had there been good reasons at the time I am sure the applicant, if he was properly motivated towards his employer, would have expressed those reasons.  He elected not to do so and he brought the consequences down on his own head.  For all of those reasons there was a valid reason for the termination of this employment and the application will be dismissed.

There is an application for costs. Costs are provided for in Section 347 of the Act and in Order 62 of the Industrial Relations Court Rules.  Costs are payable if the Court is satisfied that the proceedings were instituted vexatiously or without reasonable cause, and the Court has interpreted those words in Section 347 to mean that as at the date of filing of the application, which in this case is 16 January 1996, the applicant must have had an arguable case. It is my view that by that date it cannot be seen to be a reasonable proposition that the applicant had an arguable case.

The applicant certainly had the right in August and September of 1995 to discuss with his employer the requirements in relation to the roster.  But equally, the applicant had a responsibility as an employee, and as an equal party to an employment contract, to adopt a reasonable point of view and to comply with reasonable requests of his employer.  The requirement in relation to the roster was, in my view, part of the employment contract.  The possibility is provided for in the Award.  Other employees participated in it and the applicant had chosen personally not to participate in it prior to August of 1995 and the employer had not pressed the issue prior to that date.  Nevertheless, participation in the roster is something that is contemplated by this employment contract and the applicant, as I have said, adopted an obstructive attitude which led to an impasse which brought about the consequence that his employment was terminated.

That happened on 8 January 1996 and by 16 January, in my view, any assessment of there being an arguable case against the validity and fairness of this termination of employment had vanished.  I propose to Order that the applicant pay the respondent's costs.  There are three alternatives provided for in Order 62.  What I propose is to adjourn the matter for mention to allow the parties some time to consider which of the alternative courses in Order 62 is preferable.  I have expressed the view in previous cases that my preference, partly based on my long, laborious years as a solicitor, is for the option provided for in (b), that is having the Court specify an amount of costs.  That is in my view the most practical and expeditious manner in which a costs Order should be made.  It is the old fashioned way and it works.  The other two alternatives in Order 62 require the preparation of a detailed itemised bill and involve time and expense to the parties.  (c) certainly involves the Registrar and (a) possibly involves coming back to the Court in relation to the itemisation of the bill.  (b) is clean and easy, but if the respondent asks me to apply (b), it will have to either  to reach agreement with the applicant before or provide information to me, preferably in writing, which has been provided to him to justify whatever claim is made for a lump sum amount.  I am minded to make an Order in a specific amount so that the proceedings between the parties are at an end and the parties avoid having to spend as much as they have already spent to date on legal costs in arguing about the legal costs.

I therefore order:

1. That the application is dismissed.

1. That the applicant pay the respondent's costs in these proceedings.

1. That the proceedings be listed for mention on 6 September 1996 at 2pm as to the assessment of costs pursuant to Order 62 of the Court Rules.

I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment of Judicial Registrar Linkenbagh

Associate:
Date:  1996

Solicitor for the Applicant:               Mr J. Wilson
  Crossin Barker Gosling

Representative of the Respondent:     Mr S. Dargavel
  Automotive Food Metals Engineering and Printing and   Kindred Industries Union

Dates of hearing:  19 July and 28 August 1996