Brown v Carpentaria Transport Pty Limited
[1997] IRCA 194
•16 May 1997
DECISION NO:194/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -employee dismissed for no valid reason - employee denied procedural fairness - REINSTATEMENT - COMPENSATION
Workplace Relations Act 1996 (formerly Industrial Relations Act 1988)
ss 170 DC, 170 DE(1), 170 EE
Nicolson v Heaven and Earth Gallery Pty Ltd (1 IRCR 199)
Liddell v Lembke (1 IRCR 466)
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
BROWN -v- CARPENTARIA TRANSPORT PTY LIMITED
QI 1009 of 1997
Before: TOMLINSON JR
Place: TOWNSVILLE
Date: 16 MAY 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QI 1009 of 1997
BETWEEN:
Allen Kennedy BROWN
Applicant
AND
CARPENTARIA TRANSPORT PTY LIMITED
Respondent
BEFORE: TOMLINSON JR
PLACE: TOWNSVILLE
DATE: 16 MAY 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The Respondent to reinstate the Applicant to his former position within 14 days of today.
The Respondent to pay to the Applicant the sum of $3,180.00 compensation, within 14 days of today. This amount being based on the net weekly pay of the Applicant ($530.10) times a six week period.
The Respondent is to pay to the Applicant a further amount of compensation at the rate of the average weekly pay of the Applicant ($572.78) times a period of four and one half months, to be paid within 14 days of today. In order to facilitate this Order the Applicant is to provide the Respondent with documentary proof of the amount of social security benefits received from the date he commenced receiving such benefits until 26 May 1997.
Leave is granted to both parties to restore the matter at short notice.
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
QUEENSLAND DISTRICT REGISTRY
QI 1009 of 1997
BETWEEN:
Allen Kennedy BROWN
Applicant
AND
CARPENTARIA TRANSPORT PTY LIMITED
Respondent
BEFORE: TOMLINSON JR
PLACE: TOWNSVILLE
DATE: 16 MAY 1997
REASONS FOR DECISION
Delivered ex tempore
This is an application for reinstatement brought by Allen Brown against his former employer, the Carpentaria Transport Proprietary Limited under the Industrial Relations Act, now the Workplace Relations Act. In the hearing of the matter, the applicant represented himself and the respondent was represented by Mr Logan. By agreement, the respondent presented its evidence first. The respondent operates a freight transporting business throughout Queensland and is a wholly owned subsidiary of TNT Transport.
A telephone directions on 21 February 1996, the parties were ordered to file and serve no later than Friday, 11 April 1996, witness statements. The respondent sought to file the statements on the first day of hearing, and advised that it had experienced certain difficulty as the applicant at one stage was represented by his union. However, the applicant stated he had received the witness statements of the respondent a week before the hearing.
On behalf of the respondent the Court heard from Mr John Phillips, the North Queensland Area Manager, whose statement was admitted into evidence and marked exhibit A. Mr Phillips is the most senior ranking person at the Townsville depot of the respondent, in charge of some 30 production staff, and 14 office staff. The statement marked exhibit A indicated Mr Phillips had worked for the respondent for some 15 years.
Annexed to his statement were various photocopies from pages of his diary, relevant to particular dates. Mr Phillips agreed the diary was not a complete record of the events surrounding the termination of the applicant. Allegedly probative conversations relating to complaint issues concerning the applicant had not been fully recorded in the diary, I am unable to afford the annexures full weight and note particularly that the original diary was not produced to the Court. It was the evidence of the respondent that the applicant commenced employment on a casual basis in 1993. Paragraph 21 of Mr Phillips' statement provided:
"11 October 1995 the applicant was inducted as a permanent employee into the respondent's organisation."
Annexures O, P, Q and R, to the statement are copies of the job description, points regarding conditions of employment, induction procedures, and a check list for entry to the pay roll to be completed on the day of induction. Annexure P is signed by both the applicant and Mr Phillips, and is headed, Points Regarding Conditions of Employment. Point 14 provides;
"Abuse or assault of other employees, supervisors, or managers, will result in instant dismissal."
In his evidence in chief, Mr Phillips confirmed that he had pointed that section out to the applicant at the induction, and said words to the effect "you have to do what the supervisors tell you to do." The Court was told the applicant would allege he had been discriminated against due to his involvement with his union, the Transport Workers Union. At all times the applicant was a member of the union, and there was evidence he had been an active union delegate. In order to meet that claim the respondent provided some details of the applicant's work history, concerning matters perhaps not directly bearing upon the termination.
Some evidence was given concerning damage to one of the respondent's vehicles caused by the applicant, and due to poor lighting of the work area in the words of Mr Phillips it was "decided to leave the matter at that point." On the basis of the oral evidence of the applicant, I am unable to conclude that in that scenario the applicant was discriminated against because of his union activities. Marked as exhibit's B to I were a series of photographs showing some of the trucks of the respondent with load carrying equipment.
The Court heard evidence that the fixing of gates to the trucks such that they would swing to assist with loading and unloading was a distinguishing feature of the respondent's Townsville operations. That evidence was later controverted by the applicant’s witness Mr Ferguson. Marked as exhibit J was a business record of the respondent indicating the applicant earned an average of $572.78 for the period of November/December 1996. I have to say I found the paucity of information contained in that exhibit to cause a problem.
Paragraph 8 of Mr Phillips' statement refers to the incident involving a roller door that allegedly occurred on 27 June 1995. The evidence was discounted as being hearsay, and accordingly not probative. Paragraph 9 of the statement provides;
"At 10.30am on 29 June I had a meeting with Gil Puckering and Allen Brown. This meeting was to discuss Allen's poor work attitude, and his unacceptable number of accidents."
Since the time of employment until that point the Court had only heard a possible three incidents involving the applicant. On the basis of the provided evidence of the respondent, it is my view that the number of accidents allegedly involving the applicant could not fall into the category of being "unacceptable."
Paragraph 11 of the statement states that:
"On 22 August 1995 the applicant approached Mr Phillips about being paid for sick days he had taken and was advised that as there were no sick days accrued there would be no pay for those days."
It was put to the witness in cross-examination that in fact Mr Phillips had approached the applicant. Mr Phillips said he could not really recall that. Noting the difference between the statement and the oral evidence of Mr Phillips, I am unable to accord weight to the evidence of Mr Phillips. However, I do note the incident was some two years ago, and accordingly should not be given much weight in the overall scheme of things. It is further noted that additional evidence on behalf of the respondent on this point was provided to the Court by Mr Scott Keevers.
Paragraphs 12, 13, 14, 15, 16, 17 and 18 of the statement of Mr Phillips refer to an incident of verbal abuse allegedly on the part of the applicant of a supervisor that occurred on 18 September 1995. The allegation was that the applicant called Scott Keevers, his supervisor, a "fucking clown". A final warning was issued, and that is annexure I to the statement of Mr Phillips. It is dated 18 May 1995. The circulation list is noted as having the name of "G. Bourne", the depot manager, blackened out. The applicant tendered his own version of the warning, and the name "G. Bourne" is not blackened out.
The final warning document is signed by Mr Phillips, and the Court heard however Mr Phillips does not have power to terminate employment, only to recommend such. The Court heard no reason for the difference in the two documents. The document states, inter alia, however;
"The purpose of this letter is to advise that your behaviour on 18 September 1995, as directed towards supervisor, Scott Keevers, was totally unsatisfactory and will not be tolerated."
A meeting was organised the next day attended by various people, including Mr Graham Bourne, the Townsville Branch Manager. Paragraph 18 of the statement of Mr Phillips provides, inter alia;
"The issue by then had become an industrial issue."
The new TWU organiser, Peter Ferguson, had also commenced work, and he was not prepared to accept the previous agreement made with the respondent in relation to the matter, apparently as made by the former union organiser. Senior managers of the respondent made a decision that the written warning, previously given to the applicant, would be taken off the file of the applicant. Mr Phillips states;
“I personally disagreed with that decision. And it was clear that from our investigation that the allegations originally raised by Scott Keevers were correct, and I believed the matter was sufficiently serious to warrant the issuing of a warning letter."
In his oral evidence Mr Phillips confirmed that it was his view that the warning letter was wrongly withdrawn by management and from his written statement it can be seen that Mr Phillips failed to exhibit a broad acceptance of management decision.
Paragraph 19 of the statement of Mr Phillips stated that;
“On 3 October 1995 he was advised that the applicant refused to deliver some cartons of dangerous goods, despite being specifically instructed to do so.”
In cross-examination it became clear that Mr Phillips was not precisely aware of the situation concerning the applicant being licensed to carry dangerous goods. In re-examination the Court heard in fact subsequently the applicant had undergone a Dangerous Goods Course, but the date of that course was not provided. In light of the manner in which the witness, Mr Phillips, gave his oral evidence, and the discrepancies between the oral evidence, in that Mr Phillips could not recall if the applicant was ever offered the opportunity to undergo such a course at the time he was instructed to carry those goods, it can be concluded that the respondent in requesting the applicant to carry dangerous goods failed to exhibit an attitude of good faith towards the applicant.
Paragraphs 22 to 32 deal with what is called the Cannington Mine incident, where on 8 August 1996 it appears Mr Phillips inadvertently requested an outside employee to perform a one off driving task to that mine. The matter developed into the proportions of an industrial dispute. A meeting of employees took place, and the vote was put to strike. Paragraph 27 of the statement of Mr Phillips refers to the matters to which he was not privy, including allegedly offensive abuse given by the applicant to fellow employees shortly after the meeting.
I am unable to accord the evidence of Mr Phillips weight in regard to the matters in his statement as they are clearly hearsay. Three people became upset apparently at the level of abuse given by the applicant. Gary Bradshaw, Steve Winfield, and Gil Puckering. The Court did not hear from the former two. In diary notes recorded by Mr Phillips and annexed to his statements it is clear that those persons wanted the abusive language incident forgotten and taken no further. Those indications were made to Mr Phillips on 8 August 1996.
It is noted that the incident occurred at a union meeting. That the incident did not arise primarily from the performing of a particular contract of employment, nor did it involve management. It can be said the abusive language incident arose out of a secondary matter, that of a personality clash at a union meeting. It cannot be said that such matters were fully covered by point 14 of annexure P of the statement of Mr Phillips, referred to earlier in these reasons of my decision. However, in spite of that, and as a result of being specifically directed to do so by management, Mr Phillips took the matter of the alleged abusive language further, and on the next day, 9 August 1996, Mr Phillips conducted a meeting with the applicant, and the union delegate, Heath Ward, about the matter.
The Court did not hear from Mr Ward. The Court heard no direct evidence from Mr Phillips that he advised management of the wishes of the alleged complainants, and that they required the matter to go no further. It is my view that the further involvement of the respondent, bearing in mind the circumstances surrounding the alleged abuse and the expressed desires of those involved, was inappropriate. Such further involvement does fall into the category of harassment of the applicant, Mr Brown. It is noted that management took the initiative on previous occasions to withdraw the warning against the applicant, and it is felt that a better management practice could have been applied than to intervene in matters that in all likelihood had been settled by the union members themselves.
In light of the assertion of the applicant that he has been discriminated against because of his union activity, and in light of the conclusions above, it will be necessary to examine the motive behind the treatment of the applicant. Be that as it may, the issue of the alleged verbal abuse arising out of the union meeting dragged on until 14 August 1996. On that date a meeting was held involving some six people. It appears no formal warning was issued. Paragraph 33 of the statement of Mr Phillips continues, and I quote;
“Following the meeting of 14 August, Barry Drape addressed all employees on the outcome of the meeting.”
No evidence was provided for the holding of that meeting. Paragraph 34 of the statement refers to an incident on 1 October 1996 when the applicant sought pay for sick leave. A conversation ensued wherein the applicant advised he was under the impression RDOs could be taken when sick leave had been used up. In his oral evidence Mr Phillips did agree that some employees, and in fact including the applicant, had been allowed RDOs in these circumstances.
And so it is felt that a clear company directive stating the policy and of the management attitude towards the matter would have been helpful, rather than what seemed to be a piecemeal approach to the taking of such leave. Exhibit 6 was the medical certificate obtained by the applicant for the day in question. And exhibit 8 was an open letter from the general practitioner of the applicant indicating he was suffering from a medical condition. Reference was made to the fact that Mr Phillips subsequently inquired as to whether the applicant had consulted a specialist.
It was put to Mr Phillips in cross-examination he had doubted the integrity of the practitioner of the applicant. The issue of personal health is a sensitive one, however I find no derogatory inference was intended by Mr Phillips.
Paragraph 35 deals with the matters surrounding the termination of the applicant. The paragraph states that;
“On 9.40 on 18 October 1996 Scott Keevers advised Mr Phillips of an incident where he had been verbally abused by the applicant.”
A meeting was conducted and the applicant was issued with a letter of warning. Annexure X to the statement. That annexure reads, inter alia;
“The purpose of this letter is to formally provide you with a written warning concerning your continued unsatisfactory behaviour and attitude. I refer specifically to an incident this morning between yourself and Scott Keevers which you not only used abusive language towards Scott, but refused to obey a reasonable instruction.”
Paragraph 36 provides;
“At 1.05 18 October 1996 I handed Brown a warning. Indicated that continued behaviour of that sort would not be tolerated, and advising him that unless a drastic and immediate improvement in his general behaviour and attitude, the company would have no alternative than either to provide him with a final warning, or to terminate his service.”
In his oral evidence Mr Phillips admitted in fact he did not hand the warning to the applicant on that day as alleged. Accordingly, the sentence reproduced above was struck out. In light of the marked conflict of evidence I am forced to accord the evidence of Mr Phillips scant weight as to the alleged breaches of conduct by the applicant, and am of the view that Mr Phillips lacks bona fides in his treatment of the applicant. That view is further enforced by events that took place on 25 November 1996, when Mr Phillips received a report from Scott Keevers that the applicant had refused to use the gates on what has become known as the Blackwater truck, and was "once again disobeying a directive from his supervisor."
As a result Mr Phillips allegedly instructed Mr Keevers to tell the applicant to come to his office. The message came back, the applicant would not come until he had finished his smoko. There was apparently no argument. The applicant was legitimately on smoko. Upon learning that, Mr Phillips said he went to the smoko room and advised the applicant that he was suspended with pay until the union organiser could be back at the depot. In cross-examination Mr Phillips was asked, how did he know the applicant was treating the matter of allegedly refusing to obey a lawful command lightly, and the answer was given that the applicant remained on smoko and would not approach Mr Phillips to take the matter further.
It was put to Mr Phillips that at that time the applicant had no idea that the respondent had formed the view that "the matter was a very serious one." At no time prior to suspension did Mr Phillips, nor anyone else in management, ask the applicant for his version of what had taken place. The applicant remained on suspension. It was the oral evidence of Mr Phillips that all papers relating to the incident were sent to head office in Brisbane, including the personnel file of the applicant. Mr Phillips advised head office that it was his opinion that what the applicant had reputedly done was serious misconduct, and that he should be terminated.
Accordingly, the decision was made to terminate the applicant some time - either 26 or 27 November 1996. And Mr Phillips advised that decision was made by the Human Resources Manager in Brisbane. It is clear that at no time from the point of receiving advice that the applicant had allegedly refused to obey instruction of a supervisor, until his termination, did Mr Phillips or anyone else from the respondent company, put the allegation to the applicant, conduct an inquiry as to the nature of the issues that may have caused the applicant to refuse to follow the command, or set up a meeting in order that both sides could put their views in a fair fashion.
Paragraph 39 of the statement of Mr Phillips provides:
“At 1.05 on 28 November 1996 a meeting was held between me, Scott Keevers, Peter Ferguson, Heath Ward, Peter Parkes, and Allen Brown. This meeting commenced with me saying words to the effect, well, you know why we are here. Peter Ferguson said, that is to terminate Allen's employment. I said, that was correct. I said, that was correct and Allen was being terminated because of his serious misconduct and refusing to comply with a lawful instruction which gave us no alternative but to terminate his services. Ferguson then asked whether it related to Allen's refusal to use the gates, and a conversation ensued. I then advised Ferguson that Allen's termination was to be effected on that day, and that his letter of termination and a cheque with all moneys outstanding would be forwarded to him.”
The statement continues:
“The applicant then queried the process concerning the second and third warnings, and that the procedure had not been followed. The applicant was then advised that the company had made its decision.”
Section 170DC of the Work Place Relations Act, known as the section setting out the requirements of procedural fairness, provides:
“An employer must not terminate an employee's employment
for reasons related to the employee's conduct or performance unless,
(a), the employee has been given the opportunity to defend himself or herself against the allegations made, or
(b), the employer could not reasonably expected to give the employee that opportunity.”
Subsection (b) of that section is not relevant, as that relates to serious misconduct arising when an employer has no alternative but to forcefully possibly project an employee from the work place, such as fighting, violence, or other criminal activity. That section, section 170DC, has been interpreted in a much reported decision of Wilcox CJ of Nicolson v Heaven and Earth Gallery Pty Ltd.(1 IRCR 199) The decision has been interpreted to mean that before a termination can take place the allegations concerning the alleged wrongful conduct must be squarely put to the employee, and the employee accorded the opportunity to deal with those allegations. The oft-quoted phrase is that circumstances such as these, when they arise, “an employee must be given a fair go.” It is clear the applicant here was not accorded procedural fairness and at no time was afforded the opportunity to deal with the allegation that he had failed to follow the order of a supervisor. There is no way that the applicant could have worked out the fact that he was being given an opportunity to speak up on behalf of his job.
The applicant was dismissed by formal notice dated 29 November 1996, being annexure AA to the statement of Mr Phillips.
It states that the applicant was terminated for serious misconduct. The letter enclosed one week's pay in lieu of notice. Section 170DB of the Act provides the circumstances in which notice payments are to be made. Subsection (b) of that section provides that;
“If an employee is guilty of serious misconduct, that is,
misconduct of a kind such that it would be unreasonable to require
the employer to continue the employment period during notice.”
So, here, as raised by Mr Logan in submission, it is doubtful that in fact the applicant was dismissed for serious misconduct, as it seems on the one hand notice payments were provided, and on the other hand the respondent referred to those notice payments as an ex gratia payment.
On behalf of the respondent the Court heard from Gil Puckering, now a general freight handler who has been employed by the respondent company for some time.
It was the evidence of Mr Puckering that the truck in question, known as the Blackwater truck, had been discussed by the applicant with him prior to 28 November, and the issue raised that the gates on the back of the truck were impractical and unable to be used. Mr Puckering acknowledged that when the truck arrived at the depot, at the instigation of the applicant, the gates had been taken to the workshop to be modified, as they were too heavy and not operable completely satisfactorily in their existing condition.
During the course of the proceedings the Court heard evidence that Fauldings, the pharmaceutical company, was a regular client of the respondents, and that it required its freight to be delivered in a special way involving the use of protective angle irons, or gates.
Mr Puckering stated that he asked the applicant to load Fauldings freight on to the truck in question on 28 November and that the issue of the use of gates then arose. There was other evidence given that at the time the applicant arrived for work on 28 November the load was already on the truck, that having been done by fork lift drivers prior to that time.
Mr Puckering was asked whether he considered the gates too heavy for use, and it was his answer, they were too heavy for him to lift. However, he had offered to give the applicant a hand to lift them on to the truck. In cross-examination it was put by Mr Brown to the witness that that would be no good, as what was to happen at the other end when a delivery was to be effected. I have to say I found merit in the question. There was some evidence concerning the union Workplace Health and Safety Representative being with the applicant at the time, found that the use of the gates being too heavy and impractical would be a contravention of that section.
In re-examination Mr Puckering agreed the applicant could generally be considered a team player, and that the trucking industry is one where swearing is not uncommon. I found Mr Puckering to be a credible and reliable witness.
On behalf of the respondent the Court heard from Scott Keevers, now the Operations Supervisor of the respondent, formerly the supervisor of the applicant. The statement of Mr Keevers was admitted to evidence as exhibit K. Mr Keevers said since amalgamation the business of the company had increased two-fold, although no more road drivers are required. Further, the Court was told smoko is an agreement between the union and the company, and is paid time. Paragraph 5 of the statement of Mr Keevers refers to damage to company vehicles on a number of occasions allegedly caused by the applicant. This statement was not proven. And from the manner in which Mr Keevers answered in cross-examination the conclusion is reached that there was no evidence to substantiate the allegation that the applicant was involved in "a number of accidents."
Paragraph 12 of the statement of Mr Keevers states:
“On 22 August 1996 I asked Allen Brown to drive to Pancon, but he refused to go. I later asked Allen in the presence of other employees why he did not want to drive out Fallangur, and he replied, "I don't like driving out of town any more, and I don't want to." I said to him, you just can't refuse to do that job, Allen. Don't you want to drive a truck any more? He said, no, I don't want to drive a truck any more. I want to work as a fork lift drive/doc hand. I said, okay, and left it at that.”
Paragraph 18 of the statement deals with the termination incident of the applicant. Mr Keevers states:
“That whilst at a different location he drove the Blackwater truck, the basis of the trouble, without difficulty and that work included using of the gates.”
I note Mr Keevers is a tall person of solid build. Further the Court heard no details of the loads Mr Keevers would or might have carried during that course of employment. As with Mr Phillips, the diary notes of Mr Keevers are annexed to his statement in photocopy form. The whole of Mr Keevers' diary was not produced, similarly with Mr Phillips, nor were the original documents. It is my view the diary records of Mr Keevers as tendered should not be accorded weight, and it in support of that conclusion I read from annexure G of the statement of Mr Keevers, that provides;
“Peter Ferguson sat down after acknowledging John and myself. He then looked at John and said, righto, your call. John then said, okay, my call. Well, you know why we are here. Peter Fitzgerald said, that is to terminate Allen's employment with NQX. John said then, that is correct. And Peter then said, why? And John said, Allen has shown serious misconduct with his refusal to comply with a lawful instruction, giving the company no alternative but to terminate Allen's employment.”
The similarity of wording, as appears in that document, and the statement of John Michael Phillips, is inescapable. It causes me concern as to the credibility of the witnesses, Mr Keevers, and Mr Phillips. It is the conclusion of this Court that it is likely that in the preparation of those statements and that diary records that collusion has occurred.
Mr Keevers told the Court on 25 November Gil Puckering, the leading hand in charge of the applicant, and further that the task of making the gates swinging on the Blackwater truck, was a job to be done in the future, but not necessarily immediately.
That accords with exhibit 12, being the Work Place Health and Safety Report prepared by the applicant witness, wherein page 2 states;
“It is understood that an undertaking to fit the Acco truck with swinging gates has been made by NQX . . .”
Paragraph 18 of Mr Keevers' statement reveals the applicant approached Mr Keevers concerning gates on the Blackwater truck, and conceded that the applicant could well have raised his concern about the gates and the load safety two or three weeks before the 21 November 1996. Mr Keevers was of the view that between 21 November 1996 and 25 November 1996 the applicant could have used the gates on the truck, but no evidence was produced in that regard. It is noted that the evidence of the applicant was specifically to the contrary.
I have to say in that instance I prefer the evidence of Mr Brown. Paragraph 19 deals with the incident on 25 November. At one stage it provides;
"I went and organised angles for the freight and gave them to Allen and told him to use the angles."
Although that evidence was not specifically given by Mr Puckering, it is clear Mr Puckering did not know that that was what had happened. Paragraph 21 deals with the incident when the applicant had returned to work after making the Fauldings delivery. Mr Keevers told the Court that it was a special requirement of Fauldings that both angles and gates be used. There was no corroborative evidence from Fauldings in this regard, and so in the light of the question marks I have over the evidence of the respondent's witnesses I give the applicant's evidence full weight in that regard.
It is my conclusion the applicant on this occasion, being 25 November, arguably refused to obey the direction of a superior. Nothing from that refusal eventuated. I specifically read the statement concerned of Mr Keevers onto the record. However, on 25 November the applicant was summarily dismissed by the respondent The applicant clearly refused to do as he was lawfully instructed and nothing eventuated. However, on 25 November the applicant was summarily dismissed by the respondent for similar conduct. For some reason the applicant was treated differently. Vastly differently on two different occasions in seemingly identical circumstances. In cannot be concluded that the respondent had a valid reason for the termination of the applicant. Section 170 DE(1) of the Act has been breached. Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, deals with ‘valid reason’ and that decision is noted for the purposes of these proceedings.
Accordingly, it can be said the applicant was correct in putting a question in cross-examination to Mr Phillips, "How was I to know that the matter on 25 November was serious"? Nothing in the statement of Mr Keevers would lead the applicant to be aware that his job on and from that point when he was requested to come to a meeting, and at the time he was having smoko, was on the line.
In giving his evidence the applicant told the Court that when the Blackwater truck arrived it was immediately assigned to him. He cleaned it. He spent further time thereafter cleaning it, and it is clear that he had pride in his job. The applicant told the Court he had a good relationship with customers. Had a good driving record. The applicant liked his job, and was well known in the district to be a good driver. When the truck was delivered it had no equipment for load carrying, such as angles, chains, ropes, nor dogs. The applicant obtained new ropes. At the end of the first week the applicant took the gates to the workshop to be modified.
In his evidence in chief the applicant gave an outline of the type of work he performed. In cross-examination the applicant said the union meetings were monthly, at the end of the month, and that he was terminated before he had the chance to bring the heavy gates issue up at such a meeting. The applicant denied from 21 November 1996 until 25th he carried loads that required gates. On 21 November 1996 the applicant said Gil Puckering wanted to load small cable drums on to his truck. On that occasion he assisted Mr Puckering place gates on his truck.
The applicant said he was instructed to use the gates. He refused. The matter was not sorted out. In his evidence in chief it was the evidence of the applicant that Fauldings did not require both angles and gates. The applicant then said Scott came down and he told him he would not use the gates. It was the evidence of the applicant that Scott Keevers got angles for the applicant and the applicant used them on the load.
The applicant returned to the depot after making the delivery at approximately 10am, and indicated to Mr Keevers that there was something wrong with the paperwork to that delivery. The applicant said he then went and had smoko. Scott Keevers came to the smoko room, and asked him to come to a meeting. Mr Keevers did not say why. The applicant said he would go after smoko. The applicant said he had no idea something was wrong. A few minutes later Scott came back and asked him to go again. He said he was on smoko.
Five to ten seconds later the applicant said John Phillips came to the smoko room and told the applicant he was stood down on full pay for three weeks. The applicant said he was shocked. He simply finished his smoko and went home. Three days later he telephoned Scott Keevers, who advised that John Phillips was going to be in touch. The applicant agreed in substance with the evidence already before the Court as to what occurred at the meeting on 28 November 1996. The applicant has not been provided with a separation certificate. The applicant was six weeks waiting for Social Security payments.
These were not received until the end of December. The applicant said he has tried numerous places to obtain work without success. Marked as an exhibit in evidence was a copy of a pay slip produced to the Court by the applicant for the week ending 23 October 1996 indicating the gross pay of the applicant to be $713.10, the net pay to be $500.30. The applicant is still pursuing award for under-payment of shift allowance in another place. There is no claim for those moneys in the accrued jurisdiction of this Court, accordingly, I can take the matter no further.
In cross-examination it was the clear evidence of the applicant that on 25 November Mr Keevers did not ask him to put gates on the truck. I place weight on that evidence of the applicant, and note, inter alia, the applicant was terminated for refusing to carry out a lawful and reasonable request from a supervisor. I am not satisfied that that allegation was made out. After the applicant received a warning letter in 1995 he was shortly thereafter made permanent, so it has to be concluded the company at that point had no major concerns as to the applicant's conduct.
It was the evidence of the applicant although he has been discriminated against for his union activities, and possibly also racially, that that workplace of the respondent is no better or no worse than other situations he has found himself in.
On behalf of the applicant the Court heard from Peter Stuart Ferguson, the branch organiser with the TWU. The relationship of Mr Ferguson with the applicant goes back until September 1995. It was the evidence of Mr Ferguson that on Monday, 25 November, he received a telephone call from John Phillips, who said there was ‘a problem with Allen.’
Matters were stood over until the return of Mr Ferguson to the Townsville area. During the course of a conversation the following day John Phillips advised the witness that the gates in question, the subject of the refusal of the applicant to work, were made of aluminium. The next day, Tuesday, Mr Ferguson was told the applicant had been stood down on full pay. On Thursday morning Mr Phillips advised Mr Ferguson that the respondent had decided to terminate the applicant. The weight of the subject gates on the Blackwater vehicle was discussed.
On Thursday, 28 November, Mr Ferguson discovered the gates were steel and were heavier than anticipated. The Work Place Health and Safety Representative assessed the position, and a meeting convened in the office. Mr Ferguson stated that the applicant was terminated for refusing to follow a lawful direction, and that that was what had been stated by Mr Phillips at that meeting. I am not satisfied there is such a thing as a standard gate, but Mr Ferguson conceded that most of the issues raised at union meetings of the respondent's work force were in fact raised by the applicant.
Mr Ferguson stated that it was his view the applicant displayed a responsible attitude towards his position of being a union co-delegate to the TWU. Mr Ferguson was of the view that the union activities of the applicant may have been a reason towards the termination of the applicant by the respondent. It was further stated by the witness that swearing and heated arguments occur at the respondent's work place both during and after the employment of the applicant. The Court heard from Mr Russell Savage, a public servant involved with industrial relations matter in the Department of Training.
Mr Savage produced a specialist report indicating his assessment of the gates in question on the Blackwater truck. The last page of exhibit 12, being that report of Mr Savage, is an improvement notice. It is my conclusion that the company was required to improve the matter of the gates to be used on the Blackwater truck, and that it is possible that at the time that the applicant objected to the use them, he had in fact what was a legitimate and valid objection.
The applicant stated he sought reinstatement and compensation as he was of the view he did not deserve the treatment accorded to him. In final submission, Mr Logan, on behalf of the respondent stated reinstatement was not practicable as there is simply no job for the applicant. Due to radical restructuring the job no longer exists. However, I am mindful of the evidence of Mr Keevers that the new operation seems to have double the work-load. The Court was referred to the matter of Liddell v Lembke (1 IRCR 466) where Wilcox CJ and Keely J discussed the wording ‘practicable’ in section 170EE with regard to a Court such as this making a determination to reinstate an employee.
Isdis v R.G. Bennett, 61 IR 439 a decision of Beazley J, was referred to. The respondent argued that the job of the applicant simply does not exist, however, from my summation it is clear the main enterprise of the respondent is transporting freight and that it still does that and that it still needs a driver to do that, albeit in an altered form as the respondent has now moved. The respondent referred to proceedings in another place concerning allegations of discrimination. The applicant said he has faced and had to deal with issues of discrimination all his life.
It is clear that it is his choice that he wishes to return and that this Tribunal, it is my view, should have full regard to that choice. I place weight on the evidence of the applicant as to his evidence to mitigate his losses. The respondent urged the Court to discard any award of the applicant by any moneys he has received and further discount should be made in light of the fact the applicant has not brought corroborative evidence as to his attempt to find work and mitigate his losses. I am forced to discount that position and find no authority in law for it. It is a finding of this Court that the Workplace Relations Act has been breached.
The question as to whether the respondent had a valid reason for the termination of the applicant is arguable, however, clearly the applicant has been denied procedural fairness. It is my opinion that a remedy is due. Having considered all the facts before the Court, it is appropriate the applicant be reinstated to his former position. On the one hand, the company is down-sizing, on the other hand it attempted to produce evidence that driving jobs are not hard to come by in Townsville. Accordingly, I make the following orders: Order 1. The respondent is to reinstate the applicant to his former position within 14 days of the date of this judgment.
I turn now to compensation which was sought by Mr Brown in his final submission. Section 170EE deals with remedies this Court may make. Subsection (b) of section 170EE provides that if a Court makes an Order under paragraph (a), then the Court may make any order it thinks necessary to maintain the continuity of the employee’s employment.
I come now to the question of compensation. Exhibit 11 was the wage packet received by the applicant, indicating the amount of money received for the week ending 23 October 1996. Exhibit J was a record produced by the respondent in very meagre form, indicating certain moneys it alleged was the average weekly pay received by the respondent.
Order 2. The respondent is to pay to the applicant the sum equivalent to six weeks' salary, being the time the applicant had to wait prior to receiving Social Security benefits at the rate of $530.10, to my calculation that being an amount of $3180.60, being the amount the applicant immediately lost, that amount to be paid within 14 days of today's date. It is my view that six months' compensation is due to the applicant. I further order - this is order 3 - the respondent is to pay to the applicant the difference between the weekly Social Security payment and the average weekly payment at the rate stepped out in the respondent's exhibit J, that being the amount of $570.78 gross or a net amount, whichever the respondent elects. It would probably be appropriate the net amount be repaid as the responsibility for income tax payments is the responsibility of an employer, for a period of four and a half months.
In order to facilitate order 3, it is my view it is appropriate the applicant is to provide the respondent with documentary proof of the amount of Social Security benefits received from when such payments began until Monday, 26 May, that date being exactly six months, to my calculation, from the date of termination. I realise these orders are complicated. I propose to fax copies of them through to the relative parties on Monday morning. I further grant leave to restore the matter at short notice in case there be difficulty with the mathematics.
I certify that the preceding (21) Twenty One pages are a true copy of the reasons for decision of Judicial Registrar Tomlinson.
Associate:
Dated: 16 June 1997
APPEARANCES
Applicant in person Mr A Brown Counsel appearing for the respondent: Mr J Logan Solicitors for the respondent: Aspromourgos & Associates Date of hearing: 15 & 16 May 1997 Date of oral submissions: 16 May 1997
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