Francis Owen Jones and Department of Energy and Minerals
[1994] IRCA 50
•20 Sep 1994
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SYDNEY No. NI 362 of 1994
Nathanial SHARAN Applicant
and
FCS Holdings Pty Ltd
Trading as FERGUSON’S TOYOTA. Respondent.
JUDICIAL REGISTRAR WALKER
1 September 1994
Mr Nathaniel Sharan makes application pursuant to Section 170 EA of the Industrial Relations Act, claiming.
An order declaring the termination of the employer’s employment of the employee to have contravened Division 3 of Part VIA.
An order requesting the respondent to reinstate the employee in employment..
An order that the respondent pay compensation to the employee.
Such other order or orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the respondent had not been terminated.
Leave for the extension of time for this application to be filed and served.
FINDINGS.
I find that:
the respondent failed to give the applicant the prescribed period of notice as required by Section 170 DB.
The applicant was not given the opportunity to defend himself against the allegations made at the meeting held on 16 March 1994 and subsequently incorporated into the letter of the 17 March 1994, as required by Section 170 DC.
The termination of the applicants employment was not valid in the circumstances and was, harsh unjust and unreasonable.
The termination may have contravened Section 170 DF(f) as the applicants behavioural change or emotional state may be classed as a mental disability.
Leave for an extension of time for filing the application is not required as the applicant was not given written notice of his termination.
ORDERS
I order that:
the respondent pay to the applicant the sum of $717.00 as required pursuant to Section 170 DB (2)
the respondent pay to the applicant a further amount as compensation in the sum of $3,000.00
time for payment be 21 days from the date of this order.
REASONS FOR JUDGMENT
The applicant appears in person and the respondent is represented by Mr Ian Cassidy, a Director of the Respondent Company and Mr Taylor, the Spare Parts Manager and the applicants supervisor.
Mr Sharan commenced his employment with the respondent as a Storeman on the 11 October 1990 and was terminated on 4 May 1994.
Evidence was given by Mr Cassidy and Mr Taylor, representing the respondents, that the applicant was a very good worker, in fact he remained a good worker up to the date of his dismissal.
In about December 1993, something happened that changed Mr Sharan from, as Mr Cassidy put it,
“... a very shy sort of reserved person, come in, do his job, you would not even know he was there, to be honest, and gradually his behaviour changed and he became more outgoing.”
Mr Cassidy attributed the change in behaviour to Mr Sharans’ marriage breakdown, however, Mr Taylor, when asked by me if he knew of the reasons for the change stated,
“well we didn’t know about the matrimonial problems. The hearing that we were at on - what was the date, the last hearing - I think was the first time that we heard about it and he said then at that hearing that his wife left him in December.”
Mr Sharans’ evidence was that his wife left him after he had been dismissed.
Mr Sharan did not agree that he had suffered any change in behaviour. He just could not understand how his actions could have been interpreted as harassment.
APPLICANTS EVIDENCE
Mr Sharan is of Indian Fiji extraction and is 51 years of age. He appeared as a polite and respectful man with a happy disposition. He treated the respondents representative with respect, suggesting only that they had told “fibs.” He appeared deeply hurt by his dismissal. he showed some anger when he talked about his treatment by some of his fellow workers. he alleges they called him a “black bastard” and a “nigger” and they started to hate him after Mr Taylor had put him in the position of supervisor manager of the warehouse.
Mr Sharan gave evidence that the first notice he received that he was doing anything wrong was on the 17 March 1994 when he was called in by Mr Taylor and was required to sign the letter.
The applicant’s version of the dismissal is set out in an exercise book tendered. Mr Cassidy had a copy and had no objection to it being put into evidence, he said he would reply upon it. The events set out are as follows:-
At the close of business on Wednesday 4 May 1994 at 4:45pm, after locking up and putting out the lights Mr Sharan walked into the front office where Mr Taylor met him. Mr Taylor told him he had lost his job and handed him his termination pay and social security employment separation certificate. No written notice was given, the termination was an instant dismissal. Mr Sharan said to Mr Taylor,
“This is my biggest shock of my life, what have I done wrong?”
REASONS FOR TERMINATION
There were two reasons set out in the warning letter of 17 March 1994.
The first was that Mr Sharan bought spare parts at discount prices for his friends, and the second that his actions to other employee’s constituted harassment.
The first reason given is plainly absurd as the employer always had the option of refusing or withdrawing the discount privilege at any time. The second reason is of course a serious charge.
Mr Cassidy gave examples of these incidents of harassment and Mr Taylor corroborated his evidence. They are set out hereunder:
·Mr Sharan would say to other employees, “God is helping me”, he would say, “lucky, lucky,”: and touch his head.
·He would bring food from home and offer it to other employees
· He would regularly bring employees glasses of water
·He emptied garbage bins frequently (although it was admitted this was part of his duties)
·He would frequently come around on his week-ends to see the salesmen and obtain brochures and business cards (although it was admitted that this practice was initiated by the company)
·He frequently asked for spare parts prices, although he was rarely successful in obtaining sales.
· He sent letters written on scraps of paper to the used car manager.
·After a social cricket match one Monday night after work Mr Sharan had attended a local hotel and had written a note to some girls.
To substantiate the harassing letters Mr Cassidy tendered a letter dated the 8 March 1994 addressed to, “Dear Chris and others” and the note written on two beer coasters at the hotel and addressed to, “Dear Charming Girls.”
The First letter addressed to Chris and others, Chris being the used car manager is simply a letter of referral by Mr Sharan of a prospective customer who is interested in obtaining a four wheel drive vehicle. Some part of the letter refers to fellow employees and is in general praise of them. The contents of the letter certainly does not contain any harassing statements. I can only assume the mere fact it was sent must in Mr Cassidy’s opinion constitute the harassment.
The second of the letters tendered was written on two beer coasters and given to “some girls” at the Peakhurst Inn Hotel on a Monday evening following a social cricket match. Staff of the respondent played on Monday evenings and would attend the hotel for a social drink. Why his note was ever retained by management is amazing to say the least. The letter is as follows:-
To Dear charming girls
Always at my good service I really mean this I am Nat Sharan - Bula Fiji and I an managing the warehouse at 1 Roberts Lane Hurstville P/N 587 7577 and also at times at 23 Treacy Street Hurstville P/N 798 8077. Also dealing with new cars, used cars vans utes etc. Also discount on Toyota parts and accessories and also very very cheap small cars in good condition manual and Auto with regos. Because I deal I know lots and lots of dealers. Also cheap air fares to anywhere in the world etc. I sell anything but not women and not train contacts. But I have 4 train driver friends and they are teaching me to drive the train. So no worries I am always there for you good folk.
Bye Bye Nat King Cole.
Taking into account the applicants prior history of good behaviour and the nature of the so called harassment incidents put forward by the respondent I am satisfied that the respondent has failed to convince me that the reasons put forward for the termination were valid in the circumstance. I am however, convinced that Mr Sharans’ unusual behaviour caused annoyance and a certain amount of disruption throughout the Ferguson establishment, but to dismiss a proven loyal and conscientious employee with over three years of service can only be described as harsh, unjust and unreasonable.
PROCEDURAL FAIRNESS.
Section 170DC provides that an employer must not terminate an employee’s employment for reasons relating to the employees conduct or performance unless the employee has been given the opportunity to defend himself against the allegations made.
Clauses, 9, 10, 11, 12 and 13 (1) of Recommendation No. 166 provides.
9A workers should be entitled to be assisted by another person when defending himself, in accordance with Article 7 of the Termination of Employment Convention, 1982 against allegations regarding his conduct or performance liable to result in the termination of this employment; this right may be specified by the methods of implementation referred to in Paragraph 1 of this Recommendation.
10The employer should be deemed to have waived his right to terminate the employment of a worker for misconduct if he has failed to do so within a reasonable period of time after he has knowledge of the misconduct.
11The employer may consult worker’s representatives before a final decision is taken on individual cased of termination of employment.
12The employer should notify a worker in writing of a decision to terminate his employment.
13 (1)A worker who has been notified of termination of employment or whose employment has been terminated should be entitled to receive, on request, a written statement from his employer of the reason or reason for the termination.
The provisions of Division 3 of the Act when read with the Recommendation accompanying the Convention therefore requires a strict procedural fairness to e applied before terminating an employee.
In GEORGEVSKI v. BOSTICK (Australia) Pty Ltd (1992) 41 IR 452 the Court found that the dismissal was harsh unjust or unreasonable when the employee was automatically terminated on the basis of a policy for instant dismissal for smoking in a no smoking area. The employer made no real investigation into the circumstances of the particular incident and was therefore not aware of a number of mitigating circumstances.
Mr Sharan was not offered any procedural fairness. The great pity is that management did in no way attempt to find out what had caused his sudden emotional change. Mr Taylor was the one who counselled Mr Sharan on the 16 March 1994 and had him sign the warning letter of 17 March 1994. When I asked Mr Taylor if he had asked Mr Sharan to explain why he had changed his behaviour Mr Taylor answered, “not at all.”
I then asked Mr Taylor “do you think it would have been fair though, to ask him that?”
Mr Taylor replied, “well I guess if I was put in that position again I probably would.”
THE LETTER OF 17 MARCH 1994
The respondent relies upon this document in order to justify the applicants instant dismissal. The respondent said that the Applicant had verbal warnings prior to this letter but I am of the opinion that Mr Sharan just did not understand that his actions were annoying the staff.
The lack of understanding could have been a result of his emotional state or because of ethnic and cultural difference however, it does raise the issue of the substantive affects of the claim. Gray J, in BYRNE & FREW v AUSTRALIAN AIRLINE LIMITED 1994 AILR 165 referred to this position when he stated,
“Plainly it would be harsh, unjust and unreasonable to dismiss an employee for an offence which he or she had not committed”... the Court must determine whether as a matter of fact, the cause which the employer advanced as the ground for dismissal existed”
The first ground in the letter of the 17 March, was, as I have already stated, absurd. The second ground, was as far as I am concerned, taking into account the circumstances and the emotional state of the applicant at the time, a breach of the requirement for substantive fairness.
In BOSTIK (AUSTRALIA) P/L v GEORGEVSKI the Federal Court was of the opinion that,
“Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”
REINSTATEMENT
When asked if he still sought reinstatement Mr Sharan indicated that he did not want to return to employment with the respondent.
COURT: R A Walker, Judicial Registrar
PLACE: Sydney
DATE: 1 September 1994
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgement of Judicial Registrar Walker.
Associate : Jeynelle Moffat
____________________
Date : 1 September 1994
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