Brendan Craig Lowe v Forest Enterprises (Tasmania) Pty Limited

[1994] IRCA 171

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - failure to remain at worksite - failure to return to worksite.

Industrial Relations Act 1988, S170DC, S170DE, S170EA.

BRENDAN CRAIG ROWE - V -FOREST ENTERPRISES (TASMANIA) PTY LIMITED

No. TI 138 1994

Before:              Ryan JR

Place:                 Melbourne

Date                  15 DECEMBER 1994

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No TI 138 1994

B E T W E E N:    BRENDAN CRAIG ROWE
  Applicant

AND:    

FOREST ENTERPRISES (TASMANIA) PTY LIMITED

Respondent

RYAN JR

MINUTES OF ORDER

15 DECEMBER 1994

THE COURT ORDERS THAT:

The application is dismissed.

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

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No. TI 138 1994

B E T W E E N:  BRENDAN CRAIG ROWE
  Applicant

AND:FOREST ENTERPRISES (TASMANIA) PTY LIMITED

Respondent

COURT:              RYAN JR

PLACE:               HOBART

DATE:                  15 DECEMBER 1994

On 21 July the applicant applied for the usual remedies for alleged unlawful termination of employment.  Affidavits filed by both parties suggested the employment began on 15 June and ended 30 days later on 14 July.  The applicant at trial claims the termination actually took place on the evening of 13 July.

The applicant was employed as an excavator operator under the Timber Industry Award 1990.  The applicant claims no reason was given for termination but in paragraphs 3 and 4 of the affidavit of 22 August of Gordon Ross McCutchan, a director of the respondent company, the following statements are made.

The employee was specifically told by the respondent that the employee was dismissed because he left the work site against the implicit instruction of the employer and in addition he did not return to the work site as instructed.  The reason for the respondent's decision to terminate the employe’es employment is that despite specific instructions the employee abandoned the work site and did not return.

At trial, McCutchan seems to suggest one additional ground associated with alleged misuse of a petrol card.  I will come to that later.

Directions hearings took place on 23 August and 2 November with Mr McTaggart representing the applicant and Mr Targett the respondent on 23 August and Mr Gates the respondent on 2 November.  The file suggests that there might have also been a directions hearing on 5 October but nothing turns on that.

Commissioner Lewin of the Australian Industrial Relations Commission issued a certificate on 20 October certifying that the commission had been unable to settle the matter by conciliation.  Mr McTaggart appeared today for the applicant and Mr Targett appeared for the respondent. 

The applicant's evidence is that he was referred to this employment by the Commonwealth Employment Service and that he was referred to Gordon Ross McCutchan on 15 June.  Mr McCutchan took him to the bush on the first occasion.  This was to Ringarooma or Warrentinna, depending on which version is accurate.  It would appear to be some two hours drive (at least in the applicant's estimation) from the applicant's residence which he said was in Westbury - or at least, I understood that his evidence was that Westbury was his residence at that time. 

His evidence is that he worked in the bush on the Thursday, did not work on the Friday and worked the next week in the bush and that during this second week Mr McCutchan told him he would be employed full time as an excavator, barking logs, loading them and cutting them up with a chainsaw, presumably to a length allowing transport by truck.

The applicant estimated 90 per cent of the job involved using the excavator.  On 13 July he went to the bush site at 6.45 am and discovered that the excavator was running inadequately and was running poorly and it seems uncontested that there was some turbo or diesel injection problem.  It is also uncontested that at about 9.30 am he drove to a phone box at Branxholm and ran Mr McCutchan and that the latter indicated he would send a mechanic and that meanwhile, if it was possible, the applicant was to continue loading logs with the defective excavator.

McCutchan also instructed the applicant to contact him again by phone at about 11 or 11.30 am and again it is conceded that this was done.  There is clear disagreement as to the substance and content of this second telephone conversation.  The applicant states that McCutchan asked him to de-bark logs with an axe and that he, the applicant, indicated he was not prepared to do that. 

The applicant's evidence is unclear as to whether, on his version, he told McCutchan that he would not de-bark with an axe because it was unsafe as a barking method and was not approved by DLI, which I took it to mean the Department of Labour and Industry.  In any event, his evidence today is that he declined to do it because it was unsafe and it was not part of his job.

His evidence is also to the effect that McCutchan did not remonstrate with him given his refusal.  The court notes that if the applicant's version is correct and he did at that time decline to carry out what he says was a request or direction or instruction it seems curious that Mr McCutchan, a director of the respondent company, would have simply offered no further comment.  In any event, the applicant's evidence is that when he refused to undertake the de-barking McCutchan said nothing.

The applicant states that McCutchan also told him in the second telephone conversation that he expected the mechanic to arrive about 1 pm and if the excavator was not fixed by Thursday the applicant was to go home and return to the site on Friday, 15 July.  The applicant deposes that the mechanic came about 1 to 1.30 pm, examined the excavator and, I gather, dismantled parts or at least, "pulled the engine apart", to use the applicant's words and that the mechanic then left and that he, the applicant, also left taking the faller or bushman called Blue with him and that they left in the applicant's car and went to the applicant's home in Westbury.

Again, if the applicant's version is correct, I find it curious that the mechanic would have left the site within 30 to 60 minutes and the applicant and Blue also. 

McCutchan's version of the second telephone call is markedly different.  He says he understood or had the impression that the mechanic had not arrived at this stage, about 11.30 am, but that he expected the mechanic would have been nearing the site by that stage.  McCutchan states that he stressed to the applicant that it was important that the skidder, Tim Walsh, and the faller or feller or bushman, Blue, should continue falling and trimming the logs and he that he gave precise instructions to the applicant to that effect and told the applicant he was to remain at the site and to cut logs into truck lengths and remove some bark with a spade and that he specified that the bark was to be removed from Stringy Bark Eucalyptus and that he would contact the applicant that evening at the company-provided accommodation in Legerwood, which is apparently about 20 kilometres from the site.

McCutchan states that the applicant did not dispute his instructions, did not refuse to de-bark trees, did not express any concern and agreed to do the work as instructed.  McCutchan also swears that he went over the instructions several times.  McCutchan states he was unable to contact the applicant that evening as arranged at Legerwood and that after a telephone conversation with Tim Walsh, the skidder, at his home in Scottsdale, he contacted the applicant not at Westbury where the applicant claims he went but at Deloraine, which McCutchan understood was the applicant's residence at that time.

Again there is conflict as to the content and substance of this third telephone conversation on 13 July.  The applicant admits McCutchan asked him why he was at home, which again of course was a curious question for McCutchan to ask if, on the applicant's version, McCutchan had told him to go home.  Indeed, the applicant says his response was exactly to that effect, that he was at home because McCutchan had told him he could go home or had authorised him to go home.

My point is not that the applicant's alleged answer is inconsistent with the applicant's version but that the question, which the applicant says McCutchan asked and which McCutchan in his evidence says he asked, is inconsistent with the applicant's version.  The applicant then deposes that McCutchan said,  "I do not want you on site again", and that McCutchan would not give an answer when the applicant asked him why this was so.  If one accepts the applicant's version it seems curious that McCutchan would say he did not want the applicant on site again but would not give a reason. 

The court is not saying that could not have happened.  The court is not saying it is at all that uncommon for an employer to express such a view and decline to give reasons.  The court simply notes that if the applicant's version is in every way a correct and accurate and precisely recalled account the failure of McCutchan to give a reason for no longer wanting the applicant on site is curious indeed if, as the applicant has said, his absence from the site was initially authorised by McCutchan.

Of course, Mr McTaggart puts it for the applicant that this was consistent with McCutchan having already determined to terminate the applicant and that having decided to do so he was simply not giving reasons.  McCutchan states that the boot was really on the other foot.  He too concedes he asked the applicant why he was at home but he says that was an understandable question because the applicant had not stayed at the site or gone to Legerwood where he was expected to stay to take McCutchan's call and indeed to return to the site on Thursday.

McCutchan says the applicant was very vague and replied along the lines that he had been told the excavator was not serviceable till Friday morning and he had decided to go home.  It must be said that the court observes some vagueness and lack of recall and some inconsistency in the applicant's position but that is no more than something to be weighed in the balance in the very difficult task of determining facts - not beyond reasonable doubt but on a balance of probabilities.  The task is made no easier when there are some curious aspects about some parts of both the applicant's version and McCutchan's version.

Of course, the court is not naive.  The court is all too aware that in many cases of this type neither party necessarily gives complete and accurate version of every aspect and that reasons for omissions and inaccuracies - and I would say inconsistencies are not necessiarily expressed or ever discovered.  In any event McCutchan swears he directed the applicant in no uncertain terms to be at the site on Thursday morning and that the applicant agreed and that he, McCutchan, never suggested at all at that stage that the applicant's employment was in jeopardy.

The court is unlikely to ever learn precisely what occurred in these conversations but it seems to me that McCutchan might have been somewhat more forceful than he implied in this conversation, this last conversation, on the evening of Wednesday 13 July.

On 14 July the applicant did not attend at the site but Blue did, apparently in his own car.  I will not go through the evidence of the applicant's visit to the respondent's Launceston office, other than to say that the witness Dannock has no reason that the court can discern to fabricate his version of the applicant's conversation including apparent threats and no reason to ring the police, other than because of the applicant's behaviour and no reason to swear he rang the police if he did not.

The court accepts Dannock's version.  This makes it difficult for the applicant.  It means to find termination on 13 July would mean the court accepts the applicant vis-a-vis McCutchan but not vis-a-vis Dannock.  Without going into the detail of the meeting at Exton on the evening of 14 July the court concludes that this was when McCutchan terminated the applicant and it was because the applicant had failed to obey directions to bark trees, to stay on site on the afternoon of Wednesday 13 July and to return to the site on the morning of Thursday 14 July as directed on the evening of Wednesday 13 July.

The court would not regard the refusal to bark trees, be it by spade or axe as justifying termination and if it were by axe no ground for termination in any shape or form.  The court is not entirely convinced of Mr McCutchan's evidence in respect of the barking but does not accept the applicant's version either.

The court places no weight on the alleged petrol card misuse.  It does not find it did or did not occur.  It was introduced late as an additional ground.  On the state of the evidence before the court even if it had been taken into account, and it was not, but even if it had been taken into account the court would not consider it a valid ground for termination on the state of the evidence.

The court considers the refusals to stay on site on Wednesday 13 July and return to the site and return to the site on morning of 14 July as directed on the evening of 13 July justified termination.  The court finds the directions were given and that the applicant did not comply with them.  The court finds the termination occurred on 14 July and was not harsh or unjust or unreasonable and that the applicant was given an opportunity to defend himself, pursuant to section 170DC at about 9 pm at Exton on 14 July.

Any breaches of award are for another time and place.  The court simply recommends that if the respondent has breached the award in respect of overtime or anything else that the respondent make it good without delay.  The application is dismissed.

I certify that this and the preceding page(s) are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              
Date  :              16 January 1995
Appearances:

Counsel for the Applicant                 :              Mr Mc Taggart
Solicitor for the Applicant                 :              Jennings Elliot

Counsel for the Respondent             :              Mr Targett
  Tasmanian Chamber of Commerce and
  Industry Ltd

Date of Hearing  :              15 December 1994
Judgment  :              15 December 1994