David James Crabtree v David Lucas trading as Lucas Baron

[1996] IRCA 17

DECISION NO:   17/96

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether termination for VALID REASON of CONDUCT OR PERFORMANCE - whether termination HARSH UNJUST OR UNREASONABLE - whether PROCEDURAL FAIRNESS - NOTICE OF TERMINATION

Industrial Relations Act 1988, ss 170DE(1), 170DE(2), 170DC, 170DB

DAVID JAMES CRABTREE v DAVID LUCAS trading as LUCAS BARON

VI 4289 of 1995

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  30  JANUARY 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4289 of 1995

B E T W E E N:

David James CRABTREE
Applicant

A N D

DAVID LUCAS
trading as LUCAS BARON
Respondent

MINUTES OF ORDERS

30 January 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. 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
VICTORIA DISTRICT REGISTRY

VI 4289 of 1995

B E T W E E N:

David James CRABTREE
Applicant

A N D

DAVID LUCAS
trading as LUCAS BARON
Respondent

REASONS FOR DECISION

30 January 1996  PARKINSON JR

This is a decision in relation to an application made pursuant to s170EA of the Industrial Relations Act 1988. Save for the application of amendments to s170EE of the Act by Act No 168 of 1995, this application is not subject to the operation of those amendments in other respects. The applicant was employed as a solicitor at the respondent’s practice in Ferntree Gully from June 1992 to 5 August 1995, and is an experienced legal practitioner with many years of experience.

The respondent’s practice is a suburban general practice and relies heavily upon recommendations and ongoing business from clients for its profitability. The respondent’s principal, Mr Lucas, also a practitioner with many years experience, adopted a procedural approach designed to ensure that clients’ timetables were met. Consequently, it is apparent that there was an understanding in all persons working at the firm that certain procedures were to be followed in the progression of work.

It is clear that there was dissatisfaction on the part of Mr Lucas with the timeliness with which the applicant progressed work and the procedures adopted by him, however there is no evidence before this court of any conduct on the part of the applicant constituting negligence. The evidence suggests that there were occasions on which the applicant did not pay sufficient regard to timely progression of matters and that the outcome of this,  in terms of loss of ongoing business, was significant to the respondent. It is my view that the fundamental difficulty which arose between the parties was that of the procedures to be followed and the application of the respondent’s policy in this regard by the applicant.

The applicant acknowledged in part in the course of his evidence that he did not follow the procedures established by the respondent and that he did not strictly apply the respondent’s policy of “getting it done yesterday”.  There were occasions where the applicant acknowledged that he ought to have progressed a matter more quickly or ought to have communicated with the client earlier. Experienced practitioners may vary in their approach to these matters, and in this case the court is faced with a situation where there are two very experienced practitioners apparently in conflict as to the manner in which files ought to be managed and the practice run.  However,  Mr Lucas was the principal of the firm and was entitled to direct the manner of work in the practice.

It is clear on the evidence that Mr Lucas had on a number of occasions given clear instructions as to the method or approach to be adopted.  Further, it is clear that his dissatisfaction with the applicant’s performance or approach was made clear to the applicant on a number of occasions. Mr Lucas did this by individual discussion and by way of performance reviews. He was at pains to emphasise the need for timeliness in response to clients and in work turnaround. The most recent of these interviews took place some time at the end of April 1995 where particular incidents of concern to the respondent were discussed with the applicant. There are also documented performance appraisals in 1994 and 1995, (Exhibits R1 and R2), which identify similar concerns being expressed by Mr Lucas.

I am satisfied that the respondent was entitled to expect the work to be performed and progressed to his direction and that in this matter the applicant did not do so. I am satisfied that the respondent in terminating the employment of the applicant had valid reason relating to the conduct or work performance of the applicant.

I turn now to consider the application of s170DE(2) and s170DC.

The applicant contends that the dismissal was harsh because it was summary, notwithstanding that notice was paid and the respondent met the obligations provided for in s170DB. I am not satisfied that the applicant has established the conduct of the respondent in the manner of termination to be harsh. This is because of the background of discussion which had occurred between them, resulting in the applicant having been on notice as to the expectations of the respondent and the consequence of non-compliance. Whilst it is clear that the applicant was shocked and upset by the notification of termination, made by telephone, this is not a case where the termination of employment was without previous warnings.

It is also clear that the applicant and the respondent adopted different work methods and approaches and that these were ultimately not compatible. All of these factors lead me to conclude that I am not satisfied that the decision to terminate the employment was harsh or unreasonable.

I am not satisfied there was a failure on the part of the respondent to comply with s170DC by giving the applicant an opportunity to respond to the allegations as to his performance or conduct. I am satisfied that there had been an ongoing discussion in this regard and that the applicant in the course of the conversation at termination was told what the complaint was and was asked if he wished to say anything about it. I am satisfied that he had ample opportunity to respond to the allegation made and that there has been no contravention of s170DC of the Act.

The notice period

The applicant raised the fact that he was informed by the respondent after the termination of the employment that he would be paid two months pay in lieu of notice.  The respondent conceded in evidence that such a period had been discussed. The correspondence between the parties subsequent to the termination suggests such an arrangement. However,  the application before me is not one relating to the enforcement of the agreement and no such claim was made in the accrued jurisdiction,  on the application filed by the applicant.

I have considered the operation of s170DE(2) in this regard and have concluded that in most circumstances failure to pay requisite notice would result in a termination being characterised as harsh, unjust or unreasonable. However, in this case, save for any contractual entitlement not argued before me, the requisite notice pursuant to s170DB of this Act has been given. I am not satisfied that in this case, the failure of the respondent to pay the applicant an additional period of notice agreed to after the termination of employment, constituted the termination of the employment as harsh, unjust or unreasonable in the sense contemplated by S170DE(2) of the Act.

Costs
The respondent submitted that costs ought be awarded in view of the fact that the applicant had suffered little compensable loss. This it was submitted constituted the application as vexatious or without reasonable cause.  This application has been dealt with and dismissed prior to any decision as to quantum of compensation.  It is not readily apparent from the facts of this matter that the applicant did not have an arguable case as to merit.   Further, in so far as compensation was to be considered, the applicant, whilst not seeking reinstatement, sought compensation in an amount for various losses. This is not a case where the proceeding is brought for purposes other than obtaining a remedy of the type provided for pursuant to the Act. The application for costs pursuant to S347 of the Act is refused.

The order of the court shall be that the application is dismissed.

I certify that this and the preceding four (4) pages
are a true copy of the reason for decision of
Judicial Registrar Parkinson.

Associate:
Dated:     30 January 1996

APPEARANCES

Applicant in person

Solicitors for the respondent:                   McDonald & Charman
Solicitor appearing for the respondent:    Mr A McDonald

Date of hearing:  29 January 1996