Domenico Trimboli v Underdale Metal Processors Pty Ltd

[1995] IRCA 116

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - warnings - procedural fairness - employer’s reasons for termination not substantiated - reinstatement.

INDUSTRIAL RELATIONS ACT 1988, ss.170EA, 170EE, 170DE

DOMENICO TRIMBOLI -v-  UNDERDALE METAL PROCESSORS PTY LTD

No.  SI 255/1994

Judicial Registrar:                   L Farrell
Place:  Adelaide
Date:  2nd March 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY

SI 255 of 1994

B E T W E E N:

DOMENICO TRIMBOLI

Applicant

AND

UNDERDALE METAL PROCESSORS       PTY LTD
  Respondent

MINUTES OF ORDER

Judicial Registrar Farrell

Dated:  2nd March 1995

THE COURT ORDERS THAT:

1. The termination of the Applicant’s employment by the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act.

1. The Respondent reinstate the Applicant as from 6th March 1995.

1. The Respondent pay the Applicant the remuneration lost between 3rd November 1994 and 6th March 1995.

1. The parties have liberty to apply.

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 DISTRICT REGISTRY

SI 255 OF 1994

B E T W E E N:

DOMENICO TRIMBOLI

Applicant

AND

UNDERDALE METAL PROCESSORS   PTY  LTD
  Respondent

BEFORE:                  JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  2ND MARCH 1995

REASONS FOR JUDGMENT -
DELIVERED EX-TEMPORE - REVISED FROM TRANSCRIPT

This application pursuant to section 170EA of the Industrial Relations Act, was brought by the applicant following the termination of his employment on 3 November 1994. Evidence in the matter was given by Mr Trimboli, the applicant, Mr Costa Gioves, who was another employee of the respondent, Mr Barry Stagbower, a supervisor employed by the respondent, Mr Garry Grunell, a supervisor employed by the respondent and Mr Steve O'Connor, the general manager of the respondent.

I find the facts as follows.  The applicant commenced employment with the respondent in about December 1992 on a full-time and permanent basis.  Previously he had done occasional work for the respondent on a casual basis.  He cannot read English other than in a basic way.  During the course of his employment he worked on the chrome line at the respondent's factory until he injured his back in the course of his employment on 17 March 1994.  Following that his duties were altered to fit with the need for him to perform light duties because of his back injury.  He provided medical certificates which were tendered into evidence.   The medical certificates required that he perform rotating duties, to take breaks and to perform exercises during the day.

On 31 August 1994 he was counselled in relation to the performance of his duties.  On 21 October 1994 he received a written warning in respect of his performance relating to the damage caused to dyes by incorrect placing of parts.  In late August 1994, Mr Barry Stagbower replaced Mr Grunell as the applicant's supervisor.  The applicant gave evidence of his difficulties working for Mr Stagbower.  That evidence was supported by Mr Gioves and, in addition, I had the chance to observe Mr Stagbower as a witness.  I found him to be an unreliable witness and where his evidence fell into conflict with that of the applicant or Mr Gioves, I have preferred their evidence.

I accept that the conflict between the applicant and Mr Stagbower resulted in both the written warning of 21 October 1994 and the termination interview on 3 November 1994 taking place.  The applicant was summarily dismissed on 3 November 1994 because he had:-

1. Paid poor attention to his job;

2. Not remained at the work station as instructed; and

3. Disturbed other employees.

The Industrial Relations Act places the onus on the employer to prove that it has a valid
reason for termination of an applicant's employment.  In this matter, those reasons for
termination have not been proved.  There was simply insufficient evidence before me to prove that the conduct or performance of this applicant warranted dismissal.

Additionally, the concept of harsh, unjust and unreasonable as set out in section 170DE(2) of the Act includes a broad notion that an employer, before terminating an employee, must render procedural fairness to that employee. Procedural fairness includes such things as a system of counselling and warnings. Such a system was in place in the respondent's work place. It was acknowledged by the employer's witnesses. The procedure was as follows:-

1. A counselling session;

2. A written warning;

3. A final written warning; and

4. Dismissal.

Each reprimand was followed by a review period.  There was no evidence of any reviews taking place in respect of this applicant.  In addition, the applicant received no final written warning prior to his termination.  There was also no evidence that the employer properly investigated those matters on which the final decision to terminate the applicant was made. 

I therefore find that the termination was unlawful in accordance with the Act. As to

remedy, the primary remedy in this jurisdiction is reinstatement.  The applicant seeks

reinstatement.  Only brief evidence was led from the general manager regarding

reinstatement.  In my view that evidence was insufficient to establish any reason why I

should not reinstate this applicant.  I therefore order that the respondent  reinstate the

applicant as from 6 March 1995 .

I certify that this and the preceding 2 pages are a true copy of my reasons for judgment.

DATE OF HEARING:            23rd February 1995 and 2nd March 1995

FOR THE APPLICANT:         Mr S Blewett

FOR THE RESPONDENT:     Mr Markiewicz