Barratt v Byrtford

[1996] IRCA 204

DECISION NO:  204/96

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION  -  VALID REASON  -  WHETHER HARSH, UNJUST OR UNREASONABLE  -  PROCEDURAL FAIRNESS

INDUSTRIAL RELATIONS ACT  1988 , s170EA, ss170DE(1), ss170 DE(2), s170DC

MICHAEL BARRATT -v-BRYAN BYRT FORD

QI 95/1270

BEFORE:             BOULTON JR

PLACE: BRISBANE

DATE:   29  February 1996              

IN THE INDUSTRIAL RELATIONS   )
COURT OF AUSTRALIA  )   No.  QI  95/1270
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  MICHAEL BARRATT

Applicant

AND:  BRYAN BYRT FORD

Respondent

BEFORE:  BOULTON JR

PLACE:  BRISBANE

DATE:                  29  FEBRUARY  1996

THE COURT ORDERS THAT:

1.The application be dismissed.

NOTE:   Settlement and entry of orders are dealt with in Order 36 of the   Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS   )
COURT OF AUSTRALIA  )              No.  QI 95/1270
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  MICHAEL BARRATT

Applicant

AND:  BRYAN BYRT FORD

Respondent

BEFORE:  BOULTON JR

PLACE:  BRISBANE

DATE:                  29  FEBRUARY  1996

REASONS FOR JUDGMENT

Background

The applicant is now 42 years old.  Between 12 May 1995 and 11 August 1995, he was employed by the respondent at its motor vehicle sales premises at Upper Mt Gravatt, Brisbane, as a storeman/driver.  The applicant had previous work experience as a driver.

As the evidence unfolded, it emerged that there was very little factual dispute between the parties.  That this was so is in no small measure due to the disarming frankness of the applicant.  His frankness allows me to deal with the matter in fairly short order.  What follows is virtually common ground between the parties.

The applicant had been accident prone while driving his employer's vehicle during the short period of his employment.  He had been warned by his superiors on several occasions about his driving, including being given a written warning on 21 June 1995.  He knew and was quite concerned that his job was at risk if he were to be involved in any more collisions.  His employer paid for him to attend a defensive driving course, which he undertook, in late July 1995.

Regrettably, the applicant was involved in a further collision, with another vehicle, at about 2.35 pm on 11 August 1995 when he failed to yield way to it.

The applicant's superior spoke to him after he returned to his employer's premises later that afternoon.  The applicant was given an opportunity to convince his superior why he should not be dismissed in light of his driving history while employed by the respondent.  His employment was terminated, with one week's pay in lieu of notice, and all statutory entitlements.  He was also paid half an hour's overtime because of being kept waiting while the necessary paperwork associated with his termination was processed.

ss 170DE(1)

I am satisfied that the respondent has proved it had a valid reason for the applicant's termination, connected with his incapacity to properly and safely perform the duties of his employment.  The applicant's superior thought he was not cut out to be a driver.  On the evidence before me, I agree. 

ss 170DE(2)

I am not satisfied that the termination was harsh, unjust or unreasonable.  The applicant complained that the respondent had written on his Employment Separation Certificate, "too many accidents in parts delivery truck" when detailing his unsatisfactory work performance.  It is difficult to imagine just what else the respondent ought properly to have written.

s 170DC

Procedural fairness was accorded to the applicant in the manner of his termination.

General

The applicant had showed promise in storeman-type work with the respondent.  While I am unable to make any order in this regard, I would urge the respondent to consider whether or not it might find a place in its business for the applicant as a storeman with no driving duties.  I make this suggestion because on the evidence, the respondent presented as a caring and responsible employer.

Conclusion

The termination of the applicant's employment was lawful.

Order

I order that the application be dismissed.

I certify that this and the preceding two (2) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  29  February  1996

Appearing for the Applicant:  In person

Appearing for the Respondent:  Ms Garner
  Hopgood & Ganim, Solicitors

Date of hearing:  27  February  1996

Date of judgment:  29  February  1996