Carnegie v Eastern Energy Limited
[1996] IRCA 124
•23 February 1996
DECISION NO: 124/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -RESTRUCTURE - Transfer of employee - allocation of meter reading duties - allocation of general duties - reallocation of meter reading duties - employee objects to reallocation of duties complaints re performance of duties - Performance - CONDUCT - Ample opportunity to respond to allegations - VALID REASON - termination not harsh, unjust or unreasonable
Industrial Relations Act 1988 ss.170DC, 170DE, 170EA
CASES:
Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20
Byrne and Frew and Australian Airlines (1995) 61 IR 32
CARNEGIE -v- EASTERN ENERGY LIMITED
No. VI-4041 of 1995
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 23 February 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-4041 of 1995
B E T W E E N :
FRANK CARNEGIE
Applicant
AND
EASTERN ENERGY LIMITED
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 23 February 1996
THE COURT ORDERS:
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-4041 of 1995
B E T W E E N :
FRANK CARNEGIE
Applicant
AND
EASTERN ENERGY LIMITED
Respondent
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 23 February 1996
REASONS FOR JUDGMENT (Ex Tempore)
The Claim
Mr Frank Carnegie (the applicant) has lodged a claim of unlawful termination of employment. The application is by way of the standard form 132 and indicates that reinstatement is the remedy sought.
The applicant appeared on his own behalf and indicated in the course of the hearing that he is not seeking reinstatement as a meter reader, which was the position he held at the time of termination of his employment. The applicant seeks reinstatement to an unspecified position, presumably to a position he would regard as more suitable given his qualifications and experience.
Late Application
The respondent gave the applicant written notice of termination dated 7 July 1995. The claim was lodged on 28 July and was therefore probably not made within 14 days of the applicant receiving the Notice of Termination. However, the respondent made no issue of the possibility that the claim was up to 7 days late under S170EA(3)(a) of the Industrial Relations Act 1988 (the Act). In any event, pursuant to S170EA(3)(b) the Court allows the application to be made on 28 July 1995.
Background - Restructure
In January 1994 the State Electricity Commission of Victoria (SECV) split into generation, maintenance and service entities. The service entity was known as Electricity Services Victoria (ESV).
In October 1994 ESV split into five distribution companies one of which is the respondent, Eastern Energy Limited. All five distribution companies have been sold to private operators. The staff of ESV were effectively transferred to the five distribution companies and the legal effect of the transfer was that transferred staff by and large were provided with terms and conditions of employment similar to those existing at the time of the transfer except where the transfer removed or abolished previous terms and conditions or new terms and conditions were specified.
The applicant was a guillotine operator with SECV in William Street Melbourne. In 1993 he was located in the Energy Information Technology Centre (EITC). EITC was reducing in size and all staff were invited to apply for new positions. The applicant did not apply for a new position. On 11 October 1993 the applicant was advised in writing he was surplus to requirements and that SECV was looking for a position for him.
On 16 November 1993 he was advised by letter that negotiations had been taking place with the Strategic Businesses of the SEC in relation to finding new positions for staff such as himself identified as surplus to EITC requirements. The applicant was advised that he had been allocated to ESV and that he would be contacted in a few days to arrange “for a mutually suitable placement”.
The letter to the applicant concluded as follows:
“I would like to take this opportunity to thank you for your patience while this matter was resolved, and to wish you well in the new directions your career will be taking in the electricity industry.
Please do not hesitate to talk to Michael Cains (6913006) if you have any queries.
Yours sincerely
John Preston
Managing Director EITC”
The applicant was placed as a meter reader working from the Beaconsfield office or depot. He began in late January or early February of 1994 and was trained by a special meter reader, Mr Trevor McGrath. Mr McGrath gave evidence of that training and of advising the applicant to respect customer property and adopt a courteous and co-operative approach to customers.
Meter Reading February to June 1994
Mr Trevor McQualter, a Billing Supervisor in 1994, gave evidence of customer complaints against the applicant in April, May and June 1994. The respondent asserts that it does not rely on the substance of those complaints as grounds for the termination of the employment by the respondent in July 1995. However, the respondent does rely on the fact that such complaints were made and were not denied by the applicant and that such complaints led to an oral warning on 6 June 1994. The written report of that warning is dated 7 June 1994. It is Exhibit R4. It is a letter on SEC letterhead to the applicant. The letter refers to discussions on 6 June 1994 with Mr McQualter and Mr John Watson, Human Resources Manager, and concludes as follows:
“Since your employment as a Meter Reader at Beaconsfield on 10 January 1994, the above performance defects have been brought to your attention but have continued despite you being (given) extra tuition, and being made aware of performance requirements on a regular basis. (The reference to ‘above performance defects’ is to the customer complaints).
This poor performance cannot be permitted to continue.
In the absence of any significant improvement in your performance and attitude to your work and to customer relations, your continued employment as a Meter Reader shall be reviewed.
Your performance shall be the subject of further review on 30 June 1994.
Yours faithfully
T McQualter COPY TO: F Carnegie (Original)
BILLING SUPERVISOR “P” File
BEACONSFIELD W Whitehead (ASU Rep)”
Mr McQualter gave evidence at the hearing.
Transfer to General Duties
The respondent also relies on uncontested evidence that on or about 27 June 1994 the applicant was moved by ESV to cleaning, driving, storeman and general rouseabout duties at the Beaconsfield office with provision for some meter reading. The applicant claims that from 27 June 1994 to 12 May 1995 he did not work at all as a meter reader. Mr Ian Jackson, Customer Manager (Central) directed the applicant to return full-time to meter reading.
The applicant places a great deal of importance on the period of employment June 1994 to May 1995 and on his unwillingness to return to working as a meter reader because he found the work demanding physically given his age and a pre-existing foot injury.
Transfer Back to Meter Reading
Mr Jackson gave somewhat imprecise and vague evidence of the transfer of the applicant back into full-time meter reading duties following a meeting on 12 May 1995. Mr Jackson and the applicant were present at that meeting. Because the former had an injured wrist and could not write a record of the discussion was made by a Mr Ian Spreckley, a Human Resources Officer in the Beaconsfield office. It was not clear whether Mr Spreckley was present at the discussion but, in the absence of clear evidence, the Court assumes that he was not present. Mr Spreckley was not called to give evidence.
The record of the discussion is Exhibit R14. It was written and signed by Mr Spreckley and the evidence of Mr Jackson suggests that the record was prepared under his direction. Mr Jackson stated in evidence that Exhibit R14 “covers the salient points” of his discussion with the applicant on 12 May 1995 and it is reproduced below:
“RECORD OF DISCUSSION BETWEEN IAN JACKSON CUSTOMER MANAGER (CENTRAL) AND FRANK CARNEGIE COMMERCIAL OFFICER WARRAGUL.
Frank’s role within customer services is strictly confined to Meter Reading at Warragul as a band 1.5 officer.
In accordance with correspondence dated 7 June 1994 “PERFORMANCE/DISCIPLINE POLICY”. Frank will be taken down the path of the Discipline Policy (all steps) if adherance (sic) to that policy is not maintained.
Frank will be paid Meter Reading Allowance whilst performing that role (this is to be arranged by IAN today 12 May 1995).
Frank agrees and full understands this situation.
Frank claims to have performed Line Inspection duties for a period of time but was not paid the appropriate allowance. IAN is to follow up this matter with HANS FRAMMER, Supervisor, Line Insp.
Frank indicated that in conjunction with his solicitor he is preparing a case to support payment of a relocation allowance amounting to $5,663.88. He is also preparing a submission to the Equal Employment Opportunity Board regarding what he perceives as discrimination due to being confined to band level 1.5 whilst other Meter Readers are paid band 2 salaries. He is also concerned about lack of career opportunity.
I Spreckley
PREPARED BY: HUMAN RESOURCES OFFICER, BEACONSFIELD”
The Court has given considerable emphasis to the meeting which led to the applicant going back full-time to meter reading because:
the substance of the applicant’s claim that his termination was harsh, unjust and unreasonable is that it was unfair and unreasonable to force him back into meter reading
the applicant’s disputes with the respondent over a relocation allowance, a line inspection allowance and a meter reading allowance were all raised by the applicant at the meeting on 12 May 1995 and the applicant regards the non-payment of the relocation allowance and delays in the payment of the other two allowances as part and parcel of an unfair approach to him and part of the alleged harshness and unfairness of his termination
the respondent did not adequately explain through Mr Jackson, or any other witness, why Mr Jackson determined to take the applicant off the broad range of duties outlined in Exhibit R5 and place him full time in meter reading duties
the applicant alleged in cross-examination and his final submission that he was unsuited physically and in personality or temperament for the meter reading duties and the respondent knew this through his unsatisfactory performance in that role in April, May and June 1994
Furthermore, the Court has concluded that it is a reasonable implication from the duties actually performed between 27 June 1994 and 12 May 1995 that the respondent had in June 1994 concluded the applicant was not suitable to work as a meter reader.
However, the applicant had failed to apply for any positions open in EITC when invited to do so in early 1993 and, when in November 1993 he was allocated to ESV (Customer Services Group), he had accepted a placement from 12 January 1994 as a meter reader, an important and responsible position in the Customer Services Group.
The respondent was not obligated to allocate the applicant the broader yardman, driver, rouseabout duties which he performed from June 1994 to May 1995 or to keep him in those duties or to decline to allocate to him meter reading duties which were, in any event, designated as part of his duties from June 1994 to May 1995.
The respondent was entitled to direct that the applicant perform the meter reading duties full-time once more and the fact that it is not entirely clear why the respondent, through Mr Jackson, decided to do that does not of itself render harsh, unjust and unreasonable the termination of the applicant for unsatisfactory performance and conduct as a meter reader.
The fact that the applicant may have protested about the reallocation to meter reading duties on 12 May 1995 or 15 June 1995 or 7 July 1995 or on some other occasion does not mean that the respondent was not within its rights in requiring the applicant to work as a meter reader.
The Discipline Policy
The Court is satisfied that Mr Jackson, having decided to reallocate the applicant full-time to meter reading duties, referred to the letter to the applicant of 7 June 1994 from Mr McQualter (Exhibit R4) and, because the letter of 7 June 1994 had documented poor performance by the applicant of meter reading duties (April to June 1994) Mr Jackson referred to what he called “the discipline policy” and to what was tendered as Exhibit R16 which was Clause 6.6.5 of a Human Resources Manual developed by SECV.
The Court is satisfied that on 12 May 1995 Mr Jackson explained to the applicant in general terms the effect of Clause 6.6.5 including steps 1 to 5 of the procedure for following up unacceptable performance or conduct. It has not been suggested that Mr Jackson went through Clause 6.6.5 word for word with the applicant but the Court accepts that the procedures and guidelines and the steps in the procedure were explained to the applicant and more importantly that the applicant accepted that the procedures applied to him.
Customer Complaints June and July 1995
On 5 June Mr Jackson discussed a customer complaint with the applicant and the discussion was recorded in Exhibit R15 which reads:
“6 June 1995
I have discussed a recent customer complaint with Frank Carnegie. The discussions with Frank took place at the Warragul depot @ 9 am on Monday 5 June 1995.
The customer complaint alleges a meter reader being quite rude and arrogant to her on her property as well as some minor damage occurring to one of her plants. Frank could remember the incident and agreed the situation could have been handled differently. We discussed how the incident should have been handled pertaining to our Quality Customer Service.
Frank is aware from previous discussions held with myself that his continued employment with Eastern Energy hinges on his satisfactory performance in the meter reading field.
I have now officially warned Frank again his requirements in the meter reading area and have indicted (sic) to him he is now on step one of the discipline procedure.
Ian Jackson
Customer Manager, Central”
On 6 June 1995 the applicant was the subject of further customer complaints. A letter to the applicant on 18 June from Mark Robinson, Customer Manager (East) is Exhibit R17 and sets out events as follows:
“Dear Mr Carnegie,
CUSTOMER COMPLAINTS - 6 JUNE 1995
Thank you for meeting with Ian Jackson and myself at Beaconsfield on 15 June 1995. The purpose of the meeting was to discuss two incidents which occurred on 6 June 1995. In the two incidents you were viewed by customers as rude and abusive. You agree that your actions may have been viewed that way by the customers concerned. This behaviour conflicts with our standards. Eastern Energy is committed to providing a high level of customer service and at every opportunity we must act professionally and with courtesy.
Ian Jackson spoke to you on 5 June 1995 about a separate customer complaint. At this time he conveyed to you our customer service standards. The recent incidents occurred just one day after your discussion with Ian. As discussed, it is appropriate that you be placed on step 3 of our disciplinary procedure.
In the future please direct any frustrations or anger away from the customer.
Should there be no further instances of unacceptable performance within 12 months, relevant correspondence relating to these incidents will be destroyed.
Please contact Herman Brewer on (051) 711529 should you have any concerns with your work.
Yours faithfully,
Mark Robinson
Customer Manager East”
After the meeting of 15 June the respondent received several more complaints in relation to the applicant’s conduct in dealing with customers while performing his meter reading duties. Those complaints included:
an incident on 7 July 1995 of which the complainant gave evidence in this hearing (Exhibit R2).
I’m satisfied that the applicant was rude and aggressive to the complainant and reacted quite inappropriately to a dog which was barking at him and that the applicant drove his car around the complainant’s property in an unusual, eccentric and agitated manner
an incident on 27 June 1995 of which the customer complained on 29 June and which involved the applicant becoming abusive with the complainant and her daughter when he had difficulty locating a meter (Exhibit R20)
an incident of 3 July 1995 in which a customer complained that the applicant was agitated and abusive to the complainant and the complainant’s wife and daughter, over reacted to the presence of a dog and drove too fast on the complainant’s property (Exhibit R21)
an incident on 23 June 1995 where a customer complained on 6 July 1995 that the applicant was rude, agitated and angry when requesting the location of meters near a dairy and misread the meter resulting in an unusually high account reported as part of the complaint on 6 July (Exhibit R22)
an incident of 6 July 1995 (Exhibit R23) of which the complainant gave evidence in this hearing in which the applicant drove in a dangerous and erratic manner and at an excessive speed up and down the complainant’s driveway and overreacted to a barking dog (albeit a large dog) and abused the complainant in a manner more severe than anything the complainant had previously experienced
The Termination Meeting
As a result of these further complaints the respondent called the applicant to a meeting on 7 July. This emerged as the meeting at which the applicant’s employment was terminated. Messrs Jackson, Robinson, Spreckley and Sultry were present. Mr Sultry is the respondent’s Executive Manager, Employee Relations. He gave evidence. He was the most senior company officer present at the final meeting. He gave Messrs Jackson and Robinson advice on the application of company policy and on his view that the last series of complaints, taken in conjunction with the applicant’s previous history, justified termination of employment if those complaints were substantiated and provided that the applicant was given an opportunity to comment on the complaints.
The Court notes that each of this last series of complaints, and indeed all the preceding complaints, had been followed up by the respondent with the complainants. In the case of the two complaints of 6 July (Exhibits R22 and R23) these had been conveyed to Mr Robinson as he drove to the meeting on 7 July and he telephoned both complainants and confirmed their complaints before he arrived at the final meeting.
At the final meeting the applicant was given an opportunity to comment on the final series of complaints. However, as the details of the complaint reported in Exhibit R22 and in (iv) above was read out to the applicant, he demanded to know the names of the complainants and expressed an intention to visit each of them. The respondent’s representatives refused to divulge this information and the applicant indicated that in this situation he was not interested in hearing the details of the other complaints and that the respondent should in effect do what it wanted to do or what it intended to do.
The applicant was offered an opportunity to resign with a voluntary departure package of two weeks pay for each year of service plus the reallocation allowance he had earlier claimed. The applicant declined to resign. His employment was terminated. He was handed a letter which had already been prepared and which is Exhibit R25 and reads as follows:
“Mr Frank Carnegie
Customer Service
Eastern Region
Warragul FSC
7 July 1995
Dear Mr Carnegie,
TERMINATION OF EMPLOYMENT
Further to previous correspondence and discussions regarding your unacceptable performance, I regret to advise you that there have been further serious customers complaints regarding your conduct, attitude and general behaviour.
As a consequence, and in view of previous discussions regarding your performance, I am left with no alternative but to terminate your services with Eastern Energy, effective from close of business 7 July 1995.
Arrangements will be made for all moneys due to you to be paid in accordance with your normal pay arrangements. Any adjustments will be finalised in the pay for the period ending 27 July 1995.
Yours faithfully
Mark Robinson
Customer Manager East
Copy to:
Personal File”
Findings
The Court has concluded that:
the respondent had a valid reason for termination of the employment of the applicant connected with performance and conduct
the applicant’s conduct was manifestly unsuitable for a meter reader and the applicant virtually admitted this in his final submissions
the applicant’s performance of his duties as a meter reader was unsatisfactory
the applicant was given ample opportunity to respond to the allegations made against him on 5 June and 15 June, the allegations were put to him and he did not deny any of the complaints made against him
the applicant was given a similar opportunity on 7 July but he declined to allow the complaints to be put to him and, in any event, he did not deny them then or during the hearing
the termination of the employment was not harsh, unjust or unreasonable and the reallocation of meter reading duties full-time from 12 May 1995 was quite consistent with the applicant’s terms and conditions of employment as offered by the respondent and as accepted by the applicant on transfer to Beaconsfield on 12 January 1994
There being no breaches of Division 3 of Part VIA of the Act the application is dismissed.
This was the issue, the existence or non-existence of a breach of the Act. The respondent’s performance and discipline procedure, and specifically Clause 6.6.5 and the five step process was, as stated, a series of guidelines. The procedure was part of an original SECV policy. Parts of the policy and parts of the procedure are no longer applicable. Those parts which were applicable were followed where practicable and reasonable. Any element of non-compliance with any part of that policy, if there was any non-compliance, is neither here nor there. I am indebted to Counsel for the respondent for drawing my attention to the fact that I have expressed that position in more detail in Cartmel v Skilled Engineering, Decision No 140 of 1995 (5 April 1995) but I do not consider it appropriate or necessary to cite or rely on that decision.
There was no breach of S170DE(1).
There was no breach of S170DE(2).
The gravity of the applicant’s misconduct clearly justified the termination. See Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 at 28 and Byrne and Frew and Australian Airlines (1995) 61 IR 32 at 73 per McHugh and Gummow JJ.
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 10 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 3 April 1996
Mr F Carnegie appeared on his own behalf.
Solicitors for the Respondent: Freehill Hollingdale & Page
Counsel for the Respondent: Mr S Wood
Date of hearing: 21 and 22 February 1996
Date of judgment: 23 February 1996
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