Brodie-Hanns v MTV Publishing Ltd
[1995] IRCA 601
•26 October 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT-WHETHER HARSH UNJUST OR UNREASONABLE
INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE
CATHERINE ELIZABETH FORREST -V- TATIARA MEAT CO PTY LTD
No. SA95/1180
JUDICIAL REGISTRAR: L FARRELL
PLACE: ADELAIDE (HEARD IN BORDERTOWN)
DATE: 26 OCTOBER 1995
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SA95/1180
B E T W E E N:
CATHERINE ELIZABETH FORREST
Applicant
AND
TATIARA MEAT CO PTY LTD
Respondent
MINUTES OF ORDER
BEFORE: JUDICIAL REGISTRAR FARRELL
PLACE: ADELAIDE
DATE: 26 OCTOBER 1995
THE COURT ORDERS THAT:
The Respondent pay to the Applicant the sum of $411.60 pursuant to the Tatiara Meat Processing Agreement 1994.
The assessment of compensation payable pursuant to Section 170DE of the Industrial Relations Act is adjourned sine die.
The Applicant to have leave to apply at short but reasonable notice to re-list the matter.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICTREGISTRY )
No. SA95/1180
B E T W E E N:
CATHERINE ELIZABETH FORREST
Applicant
AND
TATIARA MEAT CO PTY LTD
Respondent
BEFORE: JUDICIAL REGISTRAR FARRELL
PLACE: ADELAIDE (HEARD IN BORDERTOWN)
DATE: 26 OCTOBER 1995
REASONS FOR JUDGMENT
This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant seeks compensation. She does not seek reinstatement. The Applicant was employed as a Production Worker by the Respondent for approximately four years. She resigned her employment in about June 1994. She recommenced employment in about September 1994.
In March 1995 the Applicant was given a first and final warning for failing to notify the Respondent when she was absent as a result of illness. She complained at the time she was given that warning about no-one answering the telephone in the hour before her shift was due to commence. She was clearly frustrated by the Respondent’s lack of procedure in this regard.
Her evidence was that she understood that she had to telephone before 8:00am when she was absent because of illness. However this does not accord either with the Agreement that covers the Applicant’s employment or the Company policy and appeared to stem from her employment with the preceding management of the Company.
The Applicant was absent again in early May and on 10, 11 and 12 May 1995. The Human Resources Manager of the Respondent was uncertain as to whether the Applicant had notified the Respondent of these absences as a number of different people could have taken the call and one of those people recalled a phone call from the Applicant but did not know when that call was made. The Applicant was absent following the public holiday on 15 May 1995 until 19 May 1995. She telephoned the Occupational Health Nurse, Mrs Tucker on 18 May 1995 to advise of her illness. The Applicant was suffering from an ear infection and gave evidence that she was in severe pain until treated by a specialist on 18 May 1995. That evidence was not contested by the Respondent.
On 22 May 1995 the Applicant was interviewed by Mr Grantham, Human Resources Manager in the presence of the Union Delegate. The Applicant was given the opportunity to explain her failure to call. Her reasons related to the severity of her condition and the fact that she had spoken to Mrs Tucker in a social situation on 13 May 1995 regarding her illness. Mrs Tucker gave evidence that there was no discussion of the Applicant’s illness on 13 May 1995. I do not think anything turns on whether that conversation took place. The conversation could not in any way have been construed as some form of notice to the Respondent. Mr Grantham did not regard the Applicant’s explanation as sufficient and so dismissed her. The Applicant was given no notice of the termination of her employment nor was she paid in lieu of notice.
Counsel for the Respondent argued that the conduct of the Applicant was serious and wilful and justified summary dismissal. Counsel for the Applicant argued that the conduct did not justify summary dismissal and that the Applicant should have been given a further warning or been subjected to other discipline available pursuant to the Agreement.
In my view the conduct of the Applicant was not so serious as to warrant summary dismissal. In my view she is entitled to one weeks wages in lieu of notice pursuant to the Tatiara Meat Processing Agreement 1994 as damages.
The conduct of the Applicant clearly warranted some disciplinary action from the Respondent however in my view the Applicant should have been given one further chance prior to dismissal.
I think such a further chance is especially warranted in this matter because of the Respondent’s failure to ensure the telephone is always answered, a matter which could easily have been remedied by the installation of an answering machine, and its failure to ensure that any record was kept of calls especially as it regarded the failure to notify illness so seriously.
I therefore find that the termination of the Applicant’s employment was harsh unjust and unreasonable.
I will delay the assessment of compensation in this matter as the Applicant has a claim for workers compensation which will shortly be determined and it is likely that the outcome of that claim will have some bearing on the compensation to be awarded.
I certify that this and the preceding page are a true copy of the reasons for my judgment.
DATE OF HEARING 11 & 12 OCTOBER 1995
PLACE OF HEARING BORDERTOWN
FOR THE APPLICANT : MS F ROBINSON
FOR THE RESPONDENT : MS S SHAW
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