Freda Voulgarakis and Sandringham & District Memorial Hospital

[1994] IRCA 99

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 810 of 1994

BETWEEN:

FREDA VOULGARAKIS
Applicant

AND

SANDRINGHAM & DISTRICT MEMORIAL HOSPITAL
Respondent

MINUTES OF ORDER

Date:  10 November 1994  Staindl JR

THE COURT ORDERS THAT:

1. The Respondent pay to the applicant the sum of $1,138.00 by way of damages pursuant to section 170EE(5) of the Industrial Relations Act.

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 810 of 1994

BETWEEN:

FREDA VOULGARAKIS
Applicant

AND

SANDRINGHAM & DISTRICT MEMORIAL HOSPITAL
Respondent

REASONS FOR JUDGMENT

Date:  10 November 1994  Staindl JR

Background

Freda Voulgarakis was employed by the Sandringham and District Memorial Hospital on 6 February 1980. Her duties essentially involved the preparation and distribution of food and the collection and cleaning up associated with such tasks. At least in 1994 she was employed for between 3.5 and 5 hours per afternoon, 5 days per week. She remained employed by the Hospital until her employment was terminated summarily on 10 June 1994. On 20 June 1994 she filed an application in this court alleging that this termination was contrary to the Industrial Relations Act.

It was agreed between the parties that the provisions of the Health and Allied Services Award (“the Award”) applied to the Applicant’s employment.  Clause 29B of that Award sets out a detailed disciplinary procedure:

“(i)Where disciplinary action is necessary, the management representative shall notify the employee of the reason.  The first warning must be verbal and will be recorded on the employee’s personal file.  A union representative shall be present if desired by either party.

(ii)If the problem continues the matter will be discussed with the employee and a second warning in writing will be given to him/her and recorded on his/her personal file.  A union representative shall be present if desired by either party.

(iii)If the problem continues the employee will be seen again by management.  If a final warning is to be given then it shall be issued in writing and a copy sent to the relevant union.  A union representative shall be present if desired by either party.

(iv)In the event of the matter recurring, then the employee may be terminated.  No dismissals are to take place without the authority of senior management.

(v)Dismissal of an employee may still occur for acts of “serious and wilful misconduct”.

(vi)If a dispute should arise over the disciplinary action, the course of action to be followed is that the matter shall be referred to the appropriate reference body for resolution.  Such resolution shall be accepted by the parties as final.

(vii)If after any warning, a period of twelve months elapses without any further warnings or action being required, all adverse reports relating to the warning must be removed from the employee’s personal file.”

Incidents Leading Up To The Dismissal

1. Allegation that Applicant was late for work on 14 January 1994.

   The events leading up to the Applicant’s termination of employment need to be reviewed.  On 14 January 1994 it is alleged that the Applicant was late for work.  Ms Hornbuckle, the Respondent’s catering supervisor, gave evidence that she recollects that the Applicant arrived “after 5 past 4”, (when the Applicant was due to commence work at 4:00pm).  From this answer and other evidence I accept that the Applicant was late on this occasion although not more than 10 minutes late.  I do note at this point that it was important from the Respondent’s point of view that the applicant commence work on time due to the tight schedule of the Respondent in getting meals out to the patients.  The applicant conceded that she may have been late on this occasion and confirmed having received a written warning dated 19 January 1994.  This warning was stated to be a “first written warning, according to section 29” (of the Award).

1. Allegation that Applicant failed to notify the Respondent of her not attending work on 19 February 1994.

   The Applicant then had time off work on account of sick leave in February 1994.  She failed to attend for work on Saturday 19 February immediately following the period covered by a medical certificate.  She did not notify anyone that she would not be attending work and this caused considerable inconvenience for the Respondent.  The Applicant says that she misread the medical certificate because she had been told that the certificate covered the period up to 19 February.  However when asked subsequently by Ms Hornbuckle about her reason for not attending on 19 February the Applicant did not give this reason but stated that she did not have to ring in but only had to provide a Doctor’s certificate upon her return to work.  This evidence of Ms Hornbuckle is confirmed by a file note dated 22 February 1994 written by her and I accept this evidence.  Mr Barry Daniels, the Respondent’s Food and Environment Services Manager also wrote a file note dated 22 February 1994 concerning the Applicant’s absence on 19 February 1994.  The file note is to the effect that he asked the Applicant the reason for her absence and that she stated that she was sick and fell asleep.  Although Mr Daniels’ actual recollection of this conversation was less clear I am prepared to accept that it did occur.  He also gave evidence which I accept that it was only subsequent to this that the Applicant stated that she had misread her medical certificate.

   The Applicant’s failure to attend for work on 19 February 1994 without notifying the Hospital was a serious matter form its point of view.  The 19th day of February was a Saturday and the hospital was run on a “skeleton staff”.  Accordingly it was more difficult on such a day to have existing staff perform the tasks normally performed by the Applicant.

   Ms Hornbuckle wrote a memorandum on 24 February 1994 to the Applicant concerning her absence.  Although the date refers to the Applicant’s absence on 19 January 1994 it is obviously meant to refer to February.  Ms Hornbuckle gave evidence that she handed this document to the Applicant and I prefer this evidence to the Applicant’s denial of having received it.  Accordingly this constituted a second warning pursuant to the disciplinary procedures of the Award.

1. Allegation that Applicant was late for work on 26 February 1994

   On 26 February 1994 the Applicant is alleged to have been late for work again.  She denies this and says that no one spoke to her about this at the time.  The Respondent’s witnesses accept that no-one spoke to the Applicant immediately about being late for work.  Ms Jacqueline Stygall, the Assistant Supervisor, Food Services, was on duty on this day and gave evidence that the applicant was between 5 and 10 minutes late, although she did not look at the clock.  As noted above she did not say anything to the Applicant at the time but then reported it to Ms Hornbuckle.  This resulted in a letter dated 1 March 1994 being written to the Applicant by Ms Hornbuckle concerning the Applicant’s “late arrival for work” on 26 February 1994.  Upon receiving this the Applicant went to see Mr Daniels.  The Applicant gave evidence that she disputed that she was late and said that Mr Daniels should “go and call the others” who were on duty at the time.  Mr Daniels’ memory of this meeting was somewhat unclear although he believed that the Applicant had requested that the others be called from the kitchen.  In the situation of a denial by the Applicant of being late it does seem to me that Mr Daniels should have made further enquires.  Rather, he simply relied on the report that he had received.  Although the evidence is not entirely clear on this point it would seem that the report of the incident upon which he relied was a report from Ms Hornbuckle, who had no direct knowledge of the incident.  Therefore, at a minimum there was a lack of procedural fairness in respect to this incident and I disregard it as a warning for the purposes of the disciplinary procedure.

1. Allegation that Applicant refused to follow a direction on 19 May 1994

   On 20 May 1994 the Applicant was given a third and final warning pursuant to the disciplinary procedures of the Award.  This related to her “unacceptable attitude and performance” on 19 May 1994.  The Applicant gave evidence that she had been asked by Ms Hornbuckle to make “special sandwiches” for persons attending a meeting at the Hospital.  This was not normally a duty carried out by her.  She said that she would make these sandwiches later, after she had taken a meal trolley to the patients.  In cross-examination of the Applicant she was asked at some length about this incident and it was put to her that she had refused to make sandwiches but she denied this.  Ms Hornbuckle stated that the Applicant had twice refused to make up sandwiches, and I accept her evidence.  A file note dated 20 May 1994 signed by Mr David Graham, the Director of General Services, is consistent with such evidence.

1. Allegation that Applicant refused to follow a direction on 8 June 1994

   The final incident of relevance occurred on 8 June 1994.  It is important to provide the background to this incident.  The Applicant was assisting in serving out the food to patients:  the meals were placed onto plates (which were in insulated plastic trays) and then put onto trolleys for distribution to patients.  The Applicant would get the plates out of a plate warmer; the chef served out the food as detailed to him by Ms Jacqueline Stygall, the Assistant Supervisor of Food Services.  This was a critical time in the catering operations as the meals then had to be distributed to patients as quickly as possible.  During this “plating-up” procedure the Applicant stated in evidence that she told Ms Stygall that she wanted to use the phone urgently.  This was because her daughter had been admitted to hospital and she wanted to contact her husband.  However she concedes that she did not tell Ms Stygall of the reason for needing to ring.  Although she stated that her supervisor had asked her to wait she told her it was urgent and then tried to make her call.

   Ms Stygall’s evidence about the incident was unequivocal.  She said that when the Applicant asked whether she could use the telephone she (Ms Stygall) said no.  She then turned away and when she turned back the Applicant was not there.  She stated that she came back “two minutes later” but that this delayed the meals by 5-7 minutes.  When pressed on this point the extra delay was due to the chef being upset at the Applicant for being absent and “shouting at her”.

   I accept Ms Stygall’s evidence of what occurred on 8 June 1994.  The Applicant directly ignored or refused to follow a direction from her supervisor and provided no explanation at the time as to any urgency about the need to make a telephone call.  Although her absence was for two minutes, her presence was essential to the Respondent’s operations and her conduct was a direct challenge to the authority of the Applicant’s supervisor.  Ms Stygall did not speak to the Applicant about the matter at the time but I accept her evidence that the chef had angrily remonstrated with the Applicant upon her return.  In fact this caused the meal to be further delayed but I do not think that the Applicant can be held responsible for this further delay.

   As a result of this incident the Applicant had a meeting with Mr Daniels and Ms Hornbuckle on 10 June 1994.  I accept that at this meeting she was given a chance to offer an explanation as to the urgency of her call but that she did not provide it.  In such circumstances the Respondent could only see the incident as a failure without cause to follow a specific direction by the Applicant’s supervisor.  If the Applicant’s daughter had in fact been admitted to hospital it was incumbent upon her to inform her supervisor of the urgency for the call at the time or, at the very least, when she was spoken to about the incident two days later.

Summary Termination For Serious and Wilful Misconduct

The Respondent relied on this incident to justify the Applicant’s employment being terminated summarily for serious and wilful misconduct.  Although I have found that the Applicant’s absence for a period of two minutes was at a critical time, it does not follow that the Applicant’s actions were such as to justify summary dismissal.  In fact the consequences of such action in that some of the meals going out to patients were delayed by two minutes and were not has hot as they might otherwise have been could not reasonably be described as serious.  As counsel for the Respondent pointed out, regard must be had to the nature of the Applicant’s actions rather than the consequences of such action.  However, that is not the sole consideration.  Where the consequences of an employee’s actions are very serious (such as injuring another employee) then those actions must be regarded more seriously than where the consequences are not as severe (such as in the present case).  I do not accept the submission put on behalf of the Respondent that the nature of the misconduct can be isolated completely from the consequences of such misconduct.  In many cases the two considerations will be inextricably linked.  Moreover, in the present case it is my view that the nature of the Applicant’s actions are not sufficient to justify summary dismissal.  Her actions on 8 June 1994 amounted to wilful misconduct but not to serious and wilful misconduct.

Counsel for the Respondent referred me to the case of North -v- Television Corporation Ltd 11 ALR 599 where Smithers and Frank JJ described “misconduct” as referring to “... conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment” (at pp 608-9). Other cases have described summary dismissal as a “drastic step”. See for example Williams -v- Printers Trade Services (1984) 4 IR 82 at p 85 per Toohey J. I agree with such a description.

The provisions of s.170DB(1) of the Act provide some assistance in looking at the question of misconduct.  That subsection provides:

170DB (1)“An employer must not terminate an employee’s employment unless:

(a)the employee has been given either the period of notice required by subsection (2), or compensation instead of notice; or

(b)the 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 during the notice period.”

In the present case I do not consider that the Applicant’s misconduct was such as to make it unreasonable for her employment to continue during the notice period. Accordingly the Respondent should not have summarily dismissed the Applicant, and it has contravened s.170DB. Reference then must be had to s.170EE(5) which provides:

“In respect of a contravention of section 170DB constituted by the termination of employment of an employee, the court may make an order requiring the employer to pay to the employee an amount of damages equal to the amount of the compensation which, if it had been given by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section.”

The amount that the Applicant would have earned had she worked out her period of notice was agreed at $1,138.00.  She is entitled to this sum.  However, in my view her dismissal was not harsh unjust or unreasonable.  The incident on 8 June 1994 followed the three previous warnings detailed above and was a matter able to be relied upon by the employer pursuant to the disciplinary procedure of the Award.

I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl.

Associate:

Dated:  10 November 1994

Solicitors for the Applicant: Counsel for the Applicant:	Zafaras Dandanis Pty Mr J. Ireland
Solicitor for the Respondent: Counsel for the Respondent:	Mr George Szlawski Mr M. McDonald
Dates of hearing:	17, 19 & 20 October 1994
Date of Judgment:	10 November 1994