Biaggio Trentino v City of Stirling
[1995] IRCA 470
•15 September 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether there was a VALID REASON for termination - whether the termination was HARSH, UNJUST OR UNREASONABLE - APPLICATION dismissed.
INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170DC, 170DE, 170DF
BIAGGIO TRENTINO -v- CITY OF STIRLING - WI 404 of 1994
BEFORE: BOON JR
PLACE: PERTH
DATE: 15 SEPTEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 404 of 1994
BETWEEN: BIAGGIO TRENTINO
- Applicant
AND: CITY OF STIRLING
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 15 SEPTEMBER 1995
THE COURT ORDERS THAT:
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 )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 404 of 1994
BETWEEN: BIAGGIO TRENTINO
- Applicant
AND: CITY OF STIRLING
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 15 SEPTEMBER 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988 relating to the termination of the applicant's employment by the respondent.
The applicant's position is that the provisions of the Industrial Relations Act have been breached in various ways. Firstly, it is said that there was no valid reason, or valid reasons, connected with the applicant's capacity or conduct or based on the operational requirements of the employer to justify termination of the employment contrary to Section 170DE(1). Secondly, if there was a valid reason, the termination was in any event harsh, unjust or unreasonable within the meaning of Section 170DE(2). Thirdly, it is said that the applicant did not have an opportunity to defend himself against allegations contrary to Section 170DC. Fourthly, it is said that the applicant's termination was for a prohibited reason or reasons, including a temporary absence from work because of illness or injury, or termination on the grounds of a physical disability. Finally, if it is found that the termination breached the provisions of the Industrial Relations Act, it is said that reinstatement of the applicant would be impracticable and that the appropriate remedy would be payment of compensation.
The respondent denies that the applicant was terminated for a prohibited reason and states that there was a valid reason for the termination within the meaning of Section 170DE of the Act. Further, the respondent states that the applicant was given an opportunity to respond to allegations against his conduct or performance. The respondent's outline of submissions states in part that the valid reasons for the termination relating to the applicant's conduct and performance and based upon the employer's operational requirements included the following:
"(a)The applicant's continued failure to reasonably co-operate with the employer's attempts to rehabilitate the applicant back into the workforce;
(b)the applicant's disruptive influence on the applicant's co-workers and the respondent's operations generally;
(c)the applicant's refusal to comply with lawful and reasonable directions by the employer to perform work within his capacity (in accordance with his rehabilitation programme);
(d)the applicant's disruptive influence and the general effect of his conduct and performance on the morale of the construction crew with whom he worked."
BACKGROUND
The respondent, the City of Stirling, is one of the largest local municipalities in Western Australia. It employs nearly 900 people. Evidence was given by Mr George Steadman, Occupational Health and Safety Co-ordinator with the City of Stirling, that the respondent has shown a strong commitment towards health and safety. The City of Stirling has been presented with a gold award by the Department of Occupational Health, Safety and Welfare to recognise the respondent's commitment towards health and safety. I accept on the evidence that the City of Stirling as an employer prides itself on its commitment to the health and safety of its workers. That does not necessarily mean, of course, that the provisions of the Industrial Relations Act were not breached in Mr Trentino's case.
The applicant, Biaggio "Joe" Trentino, was born on 26 June 1948 and is 47 years old. He migrated to Australia from Italy and has a strong Italian accent. Although some questions were raised about his ability to understand English at some of the meetings he attended with his employers, it was clear from his evidence that he is able to understand English and to speak English reasonably well. Mr Trentino is a married man with three teenage children.
Mr Trentino gained employment with the City of Stirling on 2 April 1990. His position was that of truck driver/labourer. Evidence was given that employees like Mr Trentino were generally classed as truck driver/labourers. Some employees within that category did labouring work only. Those employees who undertook truck driving duties also spent a significant proportion of their time on labouring duties. Initially Mr Trentino was engaged on truck driving duties. He took some pride in his work as a truck driver and various documents tendered as exhibits at the hearing of this matter showed that Mr Trentino's supervisors gave Mr Trentino favourable reports on the way he carried out his work during 1990.
On 19 May 1993, Mr Trentino was riding his push bike to work when he was involved in an accident. A car cut in front of him and Mr Trentino hit his brakes. He went over the handle bar and landed on his left side. Mr Trentino saw his general medical practitioner, Dr Henry Simmons, and was off work for three days as a result of that accident. Mr Trentino's fellow employees gave evidence that they were aware that he had had an accident in May of 1993 but were not aware of any problems with his health until December 1993 when Mr Trentino was removed from truck driving duties. Mr Trentino said that he was able to carry out his truck driving duties after the accident and although he experienced some pain at times he was able to control his condition with pain killers. I find on the evidence that Mr Trentino did not complain about his inability to carry out the labouring side of his duties between the date of the accident and the date on which he was removed from truck driving duties.
MR TRENTINO'S REMOVAL FROM TRUCK DRIVING DUTIES
In early December 1993, following various incidents involving Mr Trentino, he was transferred from truck driving duties to labouring duties.
Initially in his evidence-in-chief, Mr Trentino said that there was no reason for his transfer from truck driving to normal road gang construction duties. He said ".... I was the only one actually to be transferred round for some reason, I don't know why, you know, just when they need someone, just pick on me, and without any reason ...". Later in his evidence-in-chief, Mr Trentino said that he did bog the truck, that everybody did that during the year and that it was not a big deal. Mr Trentino said that in December 1993 he bogged his truck when the backhoe operator positioned him on a particular spot which, once the truck was loaded, collapsed on one side because the sand was soft underneath. He did not know that on the previous day a big hole had been dug in that position. Following this incident, he was called into the office and told that he was not a good enough driver and that he would transferred to the road construction crew as a labourer. It was clear from Mr Trentino's evidence that he felt he was being unfairly singled out for criticism by his employer. He said that he pointed out to the respondent's engineer that everybody bogged the truck three or four times a year and that he did not know why they were making such a big deal about him.
Mr Raymond McCall, a plant operator with the City of Stirling, was called to give evidence. He operates a front end loader and worked with Mr Trentino on the road construction crew. His evidence was that when Mr Trentino was a truck driver, he seemed to make Mr McCall's job a lot harder than it need have been. There were various incidents involving Mr Trentino which indicated that he was unable to properly drive the truck. On one occasion Mr Trentino parked his truck in a completely ridiculous place for Mr McCall to load. Mr McCall was very angry because he was already under a lot of pressure. As a loader/driver, he has to look out for pipes, he has to look out for men and he has to look out for where the trucks are, in addition to watching out for traffic. Mr McCall recalled another incident in which Mr Trentino drove his truck into a box and Mr McCall had to use his loader to pull Mr Trentino's truck out. The final incident, the one which Mr Trentino referred to, occurred on the day after Mr McCall had been angry with Mr Trentino for parking in the wrong place. Other members of the crew had been digging a large hole and Mr McCall saw Joe Trentino backing his truck into the hole. Mr McCall's evidence was that the truck looked like it was going to disappear into the trench and said it was fortunate that there was nobody in the trench at the time.
Mr Kevin Mills, a senior leading hand/acting foreman with the City of Stirling, gave evidence that Mr Trentino was taken off the truck driving duties as he had very bad driving skills. By December 1993, Mr Trentino should have learned how to park vehicles and to reverse with a loader. Mr Mills had had several complaints from the workers about Mr Trentino's driving skills and he had to investigate and try to solve the problem. Mr Barry Knapp, a leading hand with the respondent, also gave evidence that Mr Trentino was a poor truck driver and was taken off his truck driving duties because of his poor performance.
Finally, Trevor Holland, the Human Resources Manager at the City of Stirling, became aware in early December 1993 when the engineer in charge of the area in which Mr Trentino worked telephoned and advised him of some problems they had with the way Mr Trentino carried out his truck driving duties. The engineer recommended that Mr Trentino be demoted but Mr Holland wanted to find out exactly what had happened and arranged a meeting for 6 December 1993. The meeting was attended by Mr Trentino, Mr Steadman, Mr Holland, the engineer and Mr Mills. Mr Holland recommended that Mr Trentino be transferred to labouring duties with the road construction crew with no change in his rate of pay and that was agreed to.
It was clear from the evidence that Mr Trentino was annoyed at being removed from truck driving duties. Much of the case for the applicant revolved around the fact that, considering Mr Trentino's physical condition, he should have been put back on truck driving duties. I am satisfied, however, from the evidence of the respondent's witnesses that there were good reasons for taking Mr Trentino away from the truck driving duties. Mr Trentino had to function as part of a team and it appeared to me from the evidence that the way Mr Trentino drove his truck, particularly in late 1993, not only made the work of others more difficult but at times Mr Trentino's actions may have resulted in some danger to his fellow employees. Further, there was some evidence, both in medical reports and from statements made by Mr Trentino to his employers, that Mr Trentino had suffered from some blurred vision and dizzy spells as a result of his accident in May 1993 and that the City of Stirling was very concerned about any implications this might have for his ability to drive any vehicle.
Mr Trentino was transferred to the road crew on 3 December 1993. Mr Knapp gave evidence that, on the day after Mr Trentino was taken off the truck, when Mr Knapp got to the worksite Mr Trentino said that he had a sore neck and could not work. Mr Mills gave evidence that on that morning he had a call from Mr Knapp who asked Mr Mills to come to the job site. Mr Mills went there and found that Joe Trentino was refusing to work. This was at about 7.30 to 8.00 o'clock in the morning. Mr Mills spoke to Mr Trentino who said "No, I'm not working". Mr Trentino said that he had a sore neck and wanted to go home.
Mr Trentino was then brought in to see Mr Holland and Mr Steadman. A meeting was arranged for 6 December 1993 which was the same meeting at which the question of Mr Trentino's truck driving duties was discussed. At that meeting, Mr Trentino indicated that he had a sore neck and that he should be on light duties. He mentioned that he had been involved in a prior accident in Karratha over ten years before. Mr Trentino's evidence in relation to this accident during cross-examination was that it was a minor thing, that he was never on compensation and that he had never had any time off work. Mr Steadman, Mr Mills and Mr Holland, all of whom were present at the meeting in December 1993, gave evidence that Mr Trentino said at the meeting that he had had dizzy spells and blurred vision occasionally since the Karratha accident. Mr Holland in particular was very concerned about the dizzy spells and said to Mr Trentino that he should not be driving. Mr Trentino denied during cross examination that he had told his employers that he had suffered dizzy spells. He said that they must have obtained this information from a medical report which mentioned some blurred vision he had had during neck manipulation. Mr Trentino said that that was the only occasion on which he ever had blurred vision or dizzy spells. Mr Trentino, however, told doctors at Prime Occupational Health in December 1993 that on occasions he would become dizzy and would have to sit down. This is noted in Dr Garside's report of 9 August 1994 but was stated by Mr Trentino at his first visit to Prime in December 1993. I find on the evidence that Mr Trentino did tell his employers about his dizzy spells in December of 1993.
Mr Trentino saw his own medical practitioner, Dr Henry Simmons, who provided a medical certificate dated 7 December 1993. Dr Simmons stated in that certificate "I understand this man was previously doing mostly driving duties with some periods of labouring. He tells me he has been requested to do full time labouring. He is unable to do seven hours labour per day because of neck pain. He should do no more than two hours per day of heavy work.". Mr Steadman gave evidence that as a result of the previous meeting with Mr Trentino the respondent resolved to have Mr Trentino medically assessed to determine what his restrictions might be. This was in line with the City of Stirling's health and safety programme and rehabilitation policy.
As a result of receiving Dr Simmons' medical certificate, the Council's response was to immediately place Mr Trentino in another job. Mr Trentino was given some work clearing the drainage sumps using a whipper snipper. He was provided with a double shoulder harness to minimise the impact on his neck and he was also provided with transport because there was concern about the dizzy spells. In conjunction with this, Mr Trentino was to be assessed through Prime Rehabilitation to determine a rehabilitation programme. It appears from the evidence that Mr Trentino had no difficulty carrying out the whipper snipper duties.
From December 1993 until April 1994 Mr Trentino carried out the whipper snipping duties. In April 1994 he was transferred back to the road construction crew where he carried out flagman duties, which involved directing traffic by holding a stop/go sign. He was also put onto pegman duties which involved clearing soil from around survey pegs using the back of a shovel in a scraping or sweeping motion. The evidence from all of the respondent's witnesses was that the clearing of soil from around the survey pegs was very light work.
THE INCIDENT ON 14 APRIL 1994
On 14 April 1994 the road construction crew was working in Weaponness Road in Wembley. Mr Trentino gave evidence that on that day the crew was taking kerbs off the road and helping the loader to clear the cement kerbs. He said that Mr Mills whistled to him from far away and told him to shift some of the cement kerbs. Mr Trentino said that he told Mr Mills that he was on light duties and that he had had no clearance. Mr Mills did not seem to understand. Mr Trentino said that he asked Mr Mills to take him to his own doctor who had his surgery nearby. Mr Mills told him to "hop in the ute". Mr Trentino said he didn't know where they were going and they ended up in the depot. He was not told what was going on but Mr Mills asked him to wait in the car. Because Mr Trentino was in a lot of pain, he went across the road to the deli. He telephoned his wife who picked him up and took him to the doctor.
Mr Mills' evidence was that he never asked Mr Trentino to pick up cement kerbs. He said that where a job is very narrow, the front end loader can only get a certain amount into the bucket and then there is a small amount of shovel work whereby the road crew shovel the remaining dirt into the bucket. The rest of the crew had started this work and Mr Mills asked Trentino to help. Mr Trentino said "No, I'm on light duties". Mr Mills said to Mr Trentino "No, we've been given information that you are to do two hours normal work at one time". Mr Trentino said "No way". Mr Trentino then said that he wanted to go home. His supervisor then told Mr Mills to take Mr Trentino back to the depot. When they arrived at the depot, Mr Mills asked Trentino to wait a moment and he would telephone Trevor Holland. Mr Holland was not available so Mr Mills telephoned Mr Steadman. When Mr Steadman came out Mr Mills came over from the main office and found Trentino had gone. They looked throughout the whole depot but could not find him.
When Mr Trentino returned to work after this incident, there was a meeting with Mr Trentino, Mr Hutchins from the union and several employer representatives. As a result of that meeting, Mr Trentino was issued with a "reminder of service" over the incident.
THE REHABILITATION ASSESSMENT
Mr Holland gave evidence that on 25 April 1994 there was a formal meeting with Mr Johnson, a union organiser, Mr Trentino and Mr Holland. As a result of that, an agreement was drawn up between Mr Trentino, the union and the Stirling City Council whereby Mr Trentino agreed to undertake a functional assessment by a recognised rehabilitation provider; to provide written consent to access to medical records relating to his injury in Karratha; to allow the respondent access to a copy of his most recent medical assessment; to undergo rehabilitation by a recognised rehabilitation provider; and the City of Stirling agreed to allow Mr Trentino eight weeks' unpaid leave commencing 1 June 1994 and ending 31 July 1994.
The Court heard from Ms Melanie Baker, a qualified occupational therapist, who at the time of Mr Trentino's employment with the respondent was employed by Prime Rehabilitation. Ms Baker was contacted by the City of Stirling and was asked to do a worksite evaluation and an assessment of Mr Trentino. Her initial contact with Mr Trentino was on 3 May 1994 at Cedric Street in Stirling where there were some roadworks being undertaken. She spoke to Mr Trentino, George Steadman and a union representative for Mr Trentino. Ms Baker viewed the work that was being undertaken and gained some information about the duties Mr Trentino would be expected to undertake. After this initial view she went back to an office with Mr Trentino and the union representative and carried out an initial assessment, gaining basic information such as a medical history and work status. Following that, Ms Baker carried out a functional capacity evaluation, which is a physical assessment which she performed on Mr Trentino to establish his physical capacity at that time. Prior to this assessment, she spoke with Dr Simmons to establish that it was safe for Mr Trentino to undertake the evaluation. As a result of these assessments, Ms Baker prepared a report dated 23 May 1994. That report listed five recommendations, as follows:
"1.A work hardening/exercise programme be undertaken by Mr Trentino following his return from leave, as the results indicate Mr Trentino has poor physical activity tolerances.
2.A graded work programme be designed in a suitable position at the City of Stirling following Mr Trentino's return from leave.
3.Regular changes in posture be given, for example every hour in the work Mr Trentino is performing.
4.Counselling be considered for Mr Trentino for him to discuss his difficulties with work peers and other issues which may be affecting his return to work.
5.If progress is not made with Mr Trentino's rehabilitation following return from leave, a medical review by an occupational physician be considered."
At around this time Mr Trentino saw Dr Simmons who provided a progress medical certificate on 14 April 1994 which said that Mr Trentino was to continue to do light duties only.
Between April 1994 and June 1994, Mr Trentino engaged in further light duties until he left on leave for Italy in June 1994. During this time, some of the respondent's employees were concerned about what they saw as Mr Trentino's negative attitude towards his work and the rehabilitation programme.
Mr Trentino returned to work in August of 1994.
Melanie Baker and her colleague from Prime Rehabilitation had in May 1993 provided the City of Stirling with information relating to the duties Mr Trentino was able to undertake. These duties included clearing soil with the back of a shovel from around survey pegs and shovelling up to seven and a half kilograms in weight for ten minutes maximum at one time, filling the blade to half full, and followed by a minimum of thirty minutes in other duties before resuming shovelling. It was said that Mr Trentino was not to lift sand bags or move drums or road signs. On 9 August 1994, Dr Gary Garside from Prime Rehabilitation stated that Mr Trentino had a capacity for work and was capable of carrying out the modified list of duties as provided by Ms Baker in her report.
On Monday 29 August 1994 Mr Steadman was contacted by Kevin Mills regarding Mr Trentino. Mr Mills told Mr Steadman that Mr Trentino was not fulfilling his obligations under his rehabilitation programme. Evidence was given by Mr Mills and Mr Knapp that every time Mr Knapp left the work site Mr Trentino would sit in one of the vehicles and not do any work. Mr Steadman contacted Ms Baker and she and Mr Steadman attended the work site on Tuesday 30 August 1994 to clarify with Mr Trentino the question of his work breaks. Mr Steadman and Ms Baker both gave evidence that while they were at the work site Mr Trentino was instructed by Mr Mills to clear away any stones from the cycle way and to use a shovel to clear around the wooden pegs. However, Mr Trentino did not seem interested in performing his work and walked back and forth along the cycle way holding on to his shovel. Only occasionally would he stop to scratch around with his shovel. Ms Baker said that Mr Trentino was working slowly and was not performing the tasks as required by his supervisor to the level required.
THE INCIDENT ON 31 AUGUST 1994
Mr Mills gave evidence that on 31 August 1994 Mr Trentino left the depot about twenty minutes early. He said that at the end of the day everyone usually gets into the yard at the depot at about 3.30 pm. The normal finishing time is 3.45 pm. Mr Mills said that he saw Mr Trentino arrive at the yard at about 3.25 pm and then walk straight out of the gate. Mr Mills went to the gate and Joe Trentino had gone. On the following morning, Mr Mills asked Mr Trentino for an explanation but Mr Trentino just shrugged his shoulders. Mr Mills reported the matter to Trevor Holland and told Mr Trentino that he was going to receive a reprimand but Mr Trentino just said "I don't care". As a result of this Mr Trentino was given a written reprimand.
A meeting was held on 5 September 1994 between Ms Baker, Mr Holland, Mr Mills, Mr Steadman and Mr Trentino. The matter of leaving work fifteen minutes early without permission was raised and Mr Trentino could not give a satisfactory answer. It was also explained to Mr Trentino that his supervisor had complained that Mr Trentino continued to display a poor attitude to his work, was not participating as requested and that often the job was not being completed as asked. It was reported that he had not been asked to perform any duties outside the restrictions given. It was stated that the rest of the crew was becoming very disgruntled with Mr Trentino's poor attitude, lack of participation and lack of teamwork. An interpreter was made available to Mr Trentino but she was dismissed after some time because Mr Trentino said he did not need an interpreter. An offer was made to have a shop steward present but Mr Trentino refused the offer. A further meeting was arranged for 6 September 1994 with Mr Trentino, Mr Andrew Johnson of the union, Ms Baker, Mr Holland and Mr Steadman.
At the hearing of this matter, Mr McCall, Mr Mills and Mr Knapp all gave evidence that there had been no problems with Mr Trentino's attitude prior to December 1993. However, after Mr Trentino was moved from his truck driving duties to general labouring duties, Mr Trentino displayed a very poor attitude to his work. All three men said that the work that Mr Trentino was asked to carry out was of a light nature. He was never asked to do anything of a heavy nature except initially and then only for a short period of time. All three witnesses said that it was not a question of Mr Trentino refusing to do heavy work, but rather it was that Mr Trentino refused to do any work at all. Evidence was given that the rest of the crew after some time became fed up with Mr Trentino's poor attitude and with the fact that he was being paid the same as the rest of the crew but refused to pull his weight or do any work at all. This caused poor morale amongst the team. Mr Knapp said that he never asked Mr Trentino to do heavy work but Mr Trentino simply did not do the light duties he was asked to do. Whenever Mr Knapp left the site Mr Trentino would go off and sit in his truck.
THE MEETING ON 6 SEPTEMBER 1994
Mr Holland gave evidence that on 6 September 1995 a meeting was arranged between Mr Trentino, Mr Holland, Ms Baker, Mr Mills, Mr Steadman and Mr Johnson from the union. Mr Holland said that at the meeting they discussed the rehabilitation programme and Mr Trentino's work performance and attitude in some depth. Mr Holland asked Mr Trentino whether he was interested in and committed to his rehabilitation programme and Mr Trentino said "No". Mr Trentino and Mr Johnson were then advised that Mr Trentino could either leave the City of Stirling or return to the rehabilitation programme. Mr Johnson and Mr Trentino left the room together to discuss the issue and when they came back Mr Trentino asked what would happen when the four weeks' payment in lieu of notice he was being offered ran out. When he realised that there would be no further wages after that time, he said that he had three children to support and he needed the money. Mr Trentino then agreed to look at the rehabilitation programme. Ms Baker became involved in the discussion and the rehabilitation programme was revised and developed. Mr Trentino and Mr Johnson agreed that Mr Trentino would sign a formally prepared document. The rehabilitation programme agreed to by Mr Trentino and drawn up on 7 September 1994 stated that he was to perform "restricted duties roadworks crew - shovelling up to 7½ kg in weight, using shovel to clear soil around pegs, clear away small rocks", "work hardening programme - to attend three to four times weekly", and the prohibited activities were said to be "lifting greater than 7½ kg, lifting sand bags, moving drums - road signs".
MR TRENTINO'S ATTENDANCE AT HYDROTHERAPY
As mentioned in the programme, Mr Trentino was to attend hydrotherapy at the recommendation of Ms Baker and Dr Garside at least three or four times per week. Mr Trentino was criticised by the respondent for failing to co-operate with this. The hydrotherapy programme, however, was to be attended by Mr Trentino outside his normal hours of work. Mr Trentino gave evidence that although he tried to attend at least three times a week sometimes it was impossible for him to do so because of his family commitments. His attendance chart at the hydrotherapy pool shows that Mr Trentino did attend hydrotherapy on a fairly regular basis with the exception of one period of about a week when he did not attend at all. I accept, on balance, Mr Trentino's evidence that he did make an effort to attend hydrotherapy, and that the needs of his family prevented him from attending more often.
THE INCIDENT ON 16 SEPTEMBER 1994
Mr Knapp gave evidence that on 16 September 1994 the morale amongst the road construction crew was particularly low. The rest of the crew had become upset because Mr Trentino was refusing to do any work. They were aware that Mr Trentino was on light duties but they were sick of Mr Trentino's attitude in that he was just not making any effort at all. The resentment felt by the rest of the crew against Mr Trentino culminated in an incident on 16 September 1994 when the rest of the crew downed their tools and refused to work until Mr Trentino's attitude changed. Mr Knapp contacted Mr Mills who together with Mr Ian Denny, the respondent's engineer, came to the site. Mr Mills gave evidence that Mr Denny spoke to the work crew and said "Well, Joe is on, you know, light programmes and not allowed to do heavy work" and they said "He is not doing anything". After further conversation, the crew decided to return to work. Mr Denny then gave Mr Trentino a written reprimand. Mr Mills saw this happen and he said that Mr Trentino refused to take the written reprimand. Mr Trentino said "I'm not signing this" but did not give any reason for his behaviour.
Mr Trentino's evidence was that the reason he was not doing any work on that day was that everybody had downed tools and there was no work for him to do as there was nothing to clean away. Mr Trentino did not believe what was written in the second reprimand and that is why he would not sign it. Mr Trentino said that he had been working normally until the rest of the crew downed their tools.
On this matter I accept the evidence of the respondent's witnesses.
THE TERMINATION
Mr Trentino gave evidence that on 21 September 1994 he was carrying out his normal duties. The crew was digging a trench and shifting material with their shovels. He said in his evidence that he was doing his best and was carrying out the job to the best of his ability in accordance with his rehabilitation programme. He said the supervisor was not very happy with him because he could not keep up with the rest of the crew. Mr Trentino said that Mr Mills told the rest of the crew to get out of the trench and told Mr Trentino to do it by himself. Mr Trentino said that he was there for about an hour to an hour and a half and could not go as fast as Mr Mills told him to or pick up a full shovel load. Mr Trentino said that he told Mr Mills "I am following the programme the best I could" and then said "You know, if you want you can call Melanie Baker here. We can have a chat". Mr Trentino said that Mr Holland and Mr Steadman came to the worksite suddenly and he was shocked. He said that he hadn't expected their arrival as he had not been given any warning of this meeting. He said he was neither given an opportunity to contact the union or an opportunity to be heard. He said that Mr Holland did not ask him what the problem was and he denied saying to Mr Holland "Sack me, I don't care". Mr Trentino was sacked on the spot just before knock off time. He denied that he gave no explanation and just shrugged his shoulders. Mr Trentino's evidence was that they came on to the job site and Mr Holland and Mr Steadman just said "That's it, you're terminated Joe because the boys are not very happy".
The evidence of the respondent's witnesses differed markedly from that of Mr Trentino. Mr Knapp gave evidence that on 21 September Mr Trentino once again refused to do any work. The other members of the crew were doing some shovelling and Mr Trentino was no help whatsoever. Out of frustration Mr Knapp called Kevin Mills out to the site. Mr Mills gave evidence that he spoke to Mr Trentino and told him he must follow the rehabilitation programme and that Melanie Baker had said that he needed to follow the programme in order to get somewhere. Mr Trentino's words were "If you want me to, you tell her to come out and do it". Mr Mills then called Mr Holland and Mr Steadman to the site. They had a conversation with Mr Trentino and told him that he must follow the programme and must work. Mr Trentino's reply was "Well, if you don't like it, sack me".
Mr Steadman gave evidence that when he and Mr Holland attended the site Mr Holland spoke to Mr Trentino and asked why he was not following his rehabilitation programme and Mr Trentino would not answer. Mr Holland then said that if Mr Trentino would not answer and tell him why he was not working then Mr Trentino would be given a third and final reprimand and that could lead to his termination. Mr Trentino shrugged his shoulders and said words to the effect of "Sack me, I don't care".
Mr Holland's evidence was that when he arrived at the site Mr Knapp advised him that Mr Trentino had not been working. Mr Knapp brought Mr Trentino's shovel over and showed him a mark on the bottom of the shovel. Mr Knapp's evidence concurred with this. He said he showed Mr Holland the shovel because it was clear from the mark on the shovel, which Mr Trentino had had for some months, that he had only used the shovel up to the 50 ml mark. Mr Knapp told Mr Holland that every time he gave Mr Trentino instructions he was not interested. Mr Trentino would not follow his instructions and he would go and stand somewhere and do absolutely nothing. Mr Trentino was present when this was being said. Mr Holland then asked Mr Trentino for an explanation as to why he would not work. Mr Trentino started to walk off and Mr Holland had to call him back. Mr Holland mentioned again that he wanted to know why Mr Trentino was not performing but Mr Trentino just shrugged his shoulders. Mr Holland then said "Okay, look I'm going to get a shop steward". Mr Trentino turned around and shrugged his shoulders, threw his arms up in the air and said "Sack me". Mr Holland said again "Look Joe, why aren't you working?". Mr Trentino just shrugged his shoulders. Mr Holland said "If you don't give me an answer, you are going to get a third and final reprimand and you'll be terminated". Mr Holland said that he said that twice. Mr Trentino still would not answer and he finally had to terminate his employment.
THE CREDIBILITY OF THE WITNESSES
In many respects the evidence of Mr Trentino differed markedly from the evidence of the witnesses called on behalf of the respondent. I have come to the conclusion that on balance I prefer the evidence of the witnesses for the respondent. I have arrived at this conclusion for several reasons.
Firstly, I had an opportunity to observe the demeanour of the witnesses whilst giving evidence and there was nothing in the demeanour of the respondent's witnesses which would lead me to doubt the truth of what they were saying.
Secondly, Mr Trentino's evidence was inconsistent in some respects. I have already referred to his evidence relating to the Karratha accident. Mr Trentino gave me the impression that he was being less than truthful in some aspects of his evidence. For example, he denied telling the respondent about experiencing dizzy spells and denied suffering from dizzy spells when the weight of the evidence on that point was against him. The thrust of Mr Trentino's case was that he should have been reallocated to his truck driving duties. If he was suffering from dizzy spells this would obviously count against him in any decision to put him back on as a driver.
Finally, I have some doubts about Mr Trentino's credibility based on the fact that he only complained about his injury on the morning of the first day on which he was to undertake labouring duties only. The weight of the evidence was that whilst Mr Trentino had been employed partly as a truck driver, he carried out labouring duties approximately half of the time. Having said that, it is clear that Mr Trentino did suffer a genuine injury to his neck. The main problem experienced by the respondent, however, was that Mr Trentino had a very poor attitude to his work once he was transferred from his truck driving duties.
WAS THE TERMINATION FOR A VALID REASON?
The respondent contends that the applicant's employment was terminated for a valid reason or valid reasons including his continued failure to reasonably co-operate with the City of Stirling's attempts to rehabilitate Mr Trentino back into the workplace; his disruptive influence on his co-workers; his refusal to comply with lawful and reasonable directions by the employer to perform work within his capacity and in accordance with his rehabilitation programme; and his disruptive influence and general effect on the performance and morale of the construction crew.
In arriving at a decision in this matter, I have two misgivings. Firstly, it seems that Mr Mills may have misunderstood the requirements of the rehabilitation programme at the time of Mr Trentino's termination. It seems that Mr Mills may have thought that Mr Trentino was capable of doing two hours of normal work per day, when in fact the programme stated that he was to lift no more than 7½ kilograms on his shovel and that he was to have frequent rest breaks. The reason I have discounted this evidence is that the weight of the evidence establishes that Mr Trentino was not in fact required to do any heavy work at all by his immediate superiors. Mr Mills only became involved occasionally. The weight of the evidence also establishes that, in fact, the work that Mr Trentino did do was far less than that recommended by his rehabilitation providers.
Secondly, Mr Trentino's first language is Italian. He is from a different culture and I have borne in mind that there was a potential for cultural and language differences to have had some effect on the outcome of this matter. I have, however, studied the transcript carefully with this in mind and I am satisfied that on balance, the weight of evidence favours the respondent in this matter. I find that there was a valid reason for the termination of Mr Trentino connected with his conduct at work.
WAS THE TERMINATION HARSH, UNJUST OR UNREASONABLE?
It is clear that Mr Trentino was upset about being transferred from truck driving duties in December 1993. I am satisfied on the evidence that Mr Trentino's attitude to his work suffered considerably as a result. I am also satisfied on the basis of the evidence that the respondent acted reasonably in not returning Mr Trentino to truck driving duties. This is mainly because of the frustrations experienced by the rest of the construction crew in relation to Mr Trentino's poor driving skills. Further, the respondent had some concerns about Mr Trentino's dizzy spells and how they may affect his driving. This is not withstanding Dr Simmons' medical certificate which cleared Mr Trentino as fit to drive.
In my view, the respondent did go to some lengths to attempt to rehabilitate Mr Trentino back into the workforce. The City of Stirling took many steps to accommodate Mr Trentino's injury and to attempt to rehabilitate him. The rehabilitation was not successful primarily because of Mr Trentino's poor attitude to the labouring job. In my view, the termination of Mr Trentino's employment was not harsh, unjust or unreasonable.
WAS THERE A BREACH OF SECTION 170DF?
The applicant's solicitors provided lengthy written closing submissions that the reasons for termination included a temporary absence from work because of illness or injury within the meaning of Section 170DF(1)(a) and physical disability within the meaning of Section 170DF(1)(f). In my view, there is no evidence to support the allegation that the termination occurred for either of these reasons or for reasons including those reasons.
WAS THERE A BREACH OF SECTION 170DC?
The applicant alleges that he was not given an opportunity to defend himself against the allegations made against him within the meaning of Section 170DC. I find that the weight of the evidence establishes that Mr Trentino was given an opportunity to respond to allegations and that he chose not to say anything other than "Sack me, I don't care". I do not accept Mr Trentino's version of the evidence in this regard as I consider it most unlikely that Mr Holland and Mr Steadman would simply come along and terminate Mr Trentino on the spot without saying anything more.
Finally, I accept Mr Holland's evidence when he said "..... we tried every avenue we possibly could with Mr Trentino. I believe we bent over backwards. And, look, it just got to the point there was just nothing else we could do. ...... if he'd showed some form of interest, some commitment, we would have gone through like we had in every other occasion and been successful. But there was just no commitment.".
For these reasons, the application is dismissed.
I certify that this and the preceding 20 pages are the true reasons for judgment of Judicial Registrar Boon.
Associate:
Date:
Appearances:
Counsel for the Applicant: Mr M Bennett
Solicitors for the Applicant: Dwyer Durack
Counsel for the Respondent: Mr S Kenner
Solicitors for the Respondent: Mallesons Stephen Jaques
Date of Hearing: 26 & 27 July 1995 & 23 August 1995
Date of Judgment: 15 September 1995.
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