Gareski v A W Tyree Transformers Pty Ltd

[1996] IRCA 244

DECISION NO:  244/96

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - SERIOUS MISCONDUCT - VALID REASON - employee abusing supervisor and failing to apologise - whether valid requirement to impose - whether employee showed lack of intention to be bound by employment agreement - whether OPPORTUNITY TO RESPOND - whether HARSH UNJUST or UNREASONABLE termination.

Industrial Relations Act 1988 ss.170DB, 170DC, 170DE, 170EA

CASES:Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

Gibson v Bosmac Pty Ltd  (1995) 130 ALR 245

North v Television Corporation Ltd. (1976) 11 ALR 599

BILL GARESKI -v- A W TYREE TRANSFORMERS PTY LTD

No. VI 1152 of 1996

Before:  Judicial Registrar Murphy
Place:  Melbourne
Date:  24 May 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1152 of 1996

B E T W E E N :

BILL GARESKI
Applicant

AND

A W TYREE TRANSFORMERS PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Murphy  24 May 1996

THE COURT ORDERS:

1. The application is 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 1152 of 1996

B E T W E E N :

BILL GARESKI
Applicant

AND

A W TYREE TRANSFORMERS PTY LTD
Respondent

Before:          Judicial Registrar Murphy
Place:            Melbourne
Date:              24 May 1996

EX-TEMPORE REASONS FOR JUDGMENT

The applicant seeks a remedy pursuant to s170EA of the Industrial Relations Act (“the Act”). He was employed as a welder with the respondent. At the time the parties went their separate ways in December 1995 he had been employed for nearly two and a half years. No criticism was made of his performance.

On 12 December the applicant got something in his eye at work.  He was taken to a nearby medical clinic.  A WorkCover certificate (Exhibit A1) was issued stating that :

“Because of the pain and the particular job, he has to rest for at least 24 hours.”

He was stated to be unfit for work on 12 and 13 December.  The applicant returned with the medical certificate to the factory.  He handed it to his supervisor, Mr Kidman, who handed it to Mr Power, the Manufacturing Manager.  When Mr Power read the certificate he read the word "pain" as "rain" and queried why the applicant had been certified as unfit for all duties as light duties were available.  He formed the view that the issuing doctor may have been unaware or uninformed as to the nature of the applicant's work and the availability of light duties.  He directed Mr Kidman to find some light duties for the applicant. 

The applicant refused at that point to do any light duties and said that in accordance with the certificate he was unfit for work for two days.  Mr Power decided to ring the clinic.  He did this that afternoon.  He did not speak to the doctor.  Subsequently the doctor rang the factory back and spoke to Mr David Mann, the Administration Manager.   Mr Mann had been briefed by Mr Power.  He queried the certificate and advised Dr Hosn that light duties were available for the applicant.  Arrangements were then made for the doctor to review the applicant. 

Mr Mann telephoned the applicant's home that afternoon and spoke to his son.  Mr Mann asked the applicant's son to pass on to his father a message to attend at the clinic the following morning to be re-examined by Dr Hosn.  The applicant's son gave evidence and said that the conversation consisted only of Mr Mann advising him to advise his father that unless his father was at work the next day he would be sacked.  Mr Mann denied any such conversation.

The following morning the applicant attended for work in his overalls.  He met Mr Kidman, who was unaware of the phone calls, and told him he was going to see the doctor.  The applicant then saw Dr Hosn who gave him another medical certificate (Exhibit R1) stating that he was fit for work that day.  The certificate went on:

“Apparently the patient can be offered light duties while the ulcer is healing....

After reviewing him today on 13/12/95 he can go to work today and the ulcer nearly healed - this is the reason while(sic) the medical certificate has been changed.”

The certificate states he would be expected to be fit for his normal duties on 14 December. 

The applicant then attended his family doctor, Dr Tandon, who gave him a certificate (Exhibit R2) which stated his work restrictions as:

“No close welding work, light duty duties.”

The certificate stated that he was expected to be fit for normal duties on 13 December although the date appears to originally read 14 December. 

Around lunch time the applicant attended at the factory.  He went to the lunch room and spoke briefly to Mr Beshay.  He was angry and upset about his being given light duties and made derogatory comments about management.  He then saw Mr Kidman and handed him the second certificate from Dr Hosn.   When Mr Kidman read that the certificate certified the applicant as fit for light duties he sought to arrange light duties for the applicant.  The applicant advised him he was unhappy that the company had contacted the doctor.  Mr Kidman could not take this matter further as the two managers, Mr Power and Mr Mann, were out for the afternoon.  He asked the applicant to come to the store to see if light duties were available.  The applicant refused.  He was adamant that he was not doing light duties and wanted to see the two managers.  An argument ensued.  At some stage the applicant showed Mr Kidman the certificate from his own doctor.  Mr Kidman told the applicant that if he was not going to work he was to wait in his welding bay and not walk around the factory distracting other workers. 

A short time later Mr Kidman saw the applicant talking to another employee.  He asked him to return to his welding bay.  An argument ensued.   Mr Kidman said that the applicant was abusive and swore at him.  He also said the applicant shaped up to hit him and said he would "thump him".  The applicant invited Mr Kidman to hit him.  The applicant was loud and seemed to be upset.  At this point Mr Kidman had had enough.  He felt a bit worried.  He told the applicant to “piss off”.  He told him he could finish work the following Thursday.

At this the applicant demanded to be paid out immediately.  Mr Kidman said he could not do it and that he would have to wait until the following Tuesday which was pay day.  The applicant then demanded a spray gun that had been given to Mr Kidman to repair.  The spray gun was in pieces and Mr Kidman threw it into the welding bay where the applicant was.  Mr Beshay gave evidence corroborating the physical and verbal aggression by the applicant. 

The applicant's version of what happened on that afternoon was different, although the Court had some difficulty divining what his version was.  He maintained however that he did not think he was fit for light duties due to pain in his eye.  He wanted to see Mr Power and Mr Mann.  He maintained that Mr Kidman provoked him.  He denied any aggression or threats.  In cross-examination he admitted that he refused the light duties as directed by Mr Kidman.  He also said he was upset because he did not have the two days off work as originally certified by Dr Hosn. 

Late that afternoon Mr Kidman left a note (Exhibit R3) of what happened for Mr Power and Mr Mann.  They returned to the factory later.  Mr Power read the note of Mr Kidman.  The note makes no reference to any physical threat by the applicant.  It does state that the applicant:

“Carried on, asked me to hit him,  told him to piss off, he could finish up next Thursday, one week's notice.”

The next morning Mr Power attended the factory and obtained from Mr Beshay a short account of what he saw.  He was told that the applicant had been arrogant and abusive and threatened to punch Mr Kidman.  Early that morning the applicant had come to Mr Power's office.  Mr Power at that point was tied up with a customer.  The applicant had tried to discuss the matter with him.  Mr Power told him that there was not a lot to talk about.  He said the applicant could go back to work but had to apologise to Mr Kidman.  The applicant replied:  “I don't care a fuck about the job, I have two jobs to go to.”  This conversation was repeated again a short time later when Mr Power added that the applicant had to apologise - “I've got no alternative to support the supervisor.”

The applicant had declined to take up the offer and had demanded to be paid.  The applicant returned a short time later and the same conversation ensued.  Mr Mann was present and again suggested an apology to advance matters.  The applicant was not interested.  Mr Mann said it was up to the applicant:  “At least to show some remorse, having physically threatened a supervisor.”  At no time did the applicant give a reason why he would not apologise. 

The applicant in his evidence denied that the respondent ever said that if he “Said sorry, he could come back.”  He also denied any reference to having two jobs to go to.  He maintained that he asked why Mr Mann had been in contact with his doctor and said it was never explained why the first medical certificate had been cancelled. 

The applicant's case, apart from his denial of any threats to Mr Kidman, resolved around an allegation that the respondent's actions in relation to the medical certificates, were improper and inflammatory.  It was suggested that the applicant should have been consulted before contact was made with Dr Hosn.  The respondent denied anything improper.  Mr Power maintained that the relationship with the clinic was close and that the respondent took its safety responsibilities seriously.  He felt he was entitled to clarify the first certificate as the respondent had previously had dealings with the clinic in relation to light duties work. 

I accept his evidence on this point.  There was nothing improper in what was done.  Further, there was no breach of the respondent's procedures manuals in the request by Mr Kidman.  The applicant at that stage was proffering two medical certificates that he was fit for light duties.  When Mr Kidman asked him to perform light duties he was acting perfectly properly.

The next argument of counsel for the applicant related to the procedures manual (Exhibit A2) of the respondent on discipline.  The manual provides for quite an elaborate discipline procedure with a graduated warning system.  The procedure, in accordance with usual practice, provides for summary dismissal for a number of offences.  These include:

“(k)Refusal of duty or to obey lawful direction or abuse to those in authority,

(l)Technical assault.”

Mr Power conceded in cross-examination that the respondent did not summarily dismiss the applicant and did not believe that what happened on Wednesday, 13 December justified summary termination.  Counsel for the applicant built on this concession to suggest that the applicant had been denied procedural fairness as a result of events on Thursday 14 December.  He submitted that because Mr Power had imposed a condition of an apology on further discussion of the matter, then the applicant had been denied any opportunity to put his case.  By requiring an apology Mr Power had attributed blame to the applicant.

At this point I should indicate that I have no hesitation in accepting the respondent's witnesses on all matters where there is a conflict in the evidence.  In particular, having had the opportunity to observe the demeanour and presentation of Mr Kidman and the applicant, I prefer to accept that the applicant did refuse to obey Mr Kidman's directions, shaped up to him, swore at him and threatened to hit him.  Further, I am satisfied that the applicant's actions were unreasonable, given the contents of the medical certificates.  I draw no inference against the respondent for failing to call Dr Hosn.  His certificate is virtually identical to the applicant's own family doctor's certificate.  I also prefer the evidence of Mr Mann over that of the applicant's son in relation to the contents of the telephone conversation on 13 December. 

Returning to the position on 14 December, the respondent was faced with an impasse.  Mr Kidman had given the applicant notice of termination.  That notice had to be confirmed by Mr Power.  I am satisfied that Mr Power dealt with the matter by asking the applicant to apologise to Mr Kidman.  An apology must be seen for what it is:  an acknowledgment of Mr Kidman's authority as supervisor.  Mr Power, in evidence that was not challenged, indicated that the applicant could continue to work but had to apologise. 

The applicant refused and in colourful language expressed his feelings about his job.  Importantly, I am satisfied that Mr Power had reasonable grounds for believing that the applicant had to apologise because the applicant's actions the day before, at a minimum, warranted an apology given my acceptance of the respondent's version, and in particular the account by Mr Kidman and Mr Beshay.  Mr Mann said that in effect the applicant sacked himself by failing to accept the respondent's offer. 

Did the respondent have a valid reason to terminate the applicant's employment? 

When the applicant refused to apologise to Mr Kidman he demanded that he be paid out.  This was refused but the following Tuesday he was paid three weeks wages and his accrued annual leave.  Counsel for the respondent submits that the termination here can be described as a summary dismissal.  He argued that it was valid as meeting the test of misconduct set out in North v Television Corporation Ltd. (1976) 11 ALR 599. Counsel for the applicant submitted that the events of Wednesday 13 December were trifling, "a storm in a teacup".

He submitted that Mr Power, in imposing a requirement on the applicant that he apologise, and terminating him on notice for failure to do so, acted harshly and disproportionately.  He submitted that the applicant's state of mind was relevant.  He submitted that the respondent should not have contacted the applicant's doctors and he was entitled to refuse light duties on Wednesday.  Counsel for the applicant submitted that had the matter been approached differently the outcome would have been different.

A valid reason has been described in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373 meaning a “sound defensible or well founded” reason.  Northrop J goes on:

“A reason which is capricious, fanciful, spiteful or prejudiced, could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privilege and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical common sense way to ensure that" the employer and employee are each treated fairly”.

Here the respondent had a valid reason to dismiss the applicant.  It was not capricious.  It was a logical response to the employee's capacity or conduct or based on the operational requirements of the respondent.  The respondent was entitled to expect an apology from the applicant.  It was entitled to expect the applicant to acknowledge his supervisor's authority.  It was entitled to expect him to take a step to rebuild his relationship with Mr Kidman.

The applicant, by refusing to do so, had shown that he did not intend to be bound by an essential term of his employment contract.  His intention not to be so bound was repeated on at least three occasions over a period of an hour or so on 14 December. 

Further, the termination, for the same reasons was not, in all the circumstances, harsh, unjust or unreasonable.  The applicant carries the onus of proof on this issue.  He has given no substantive explanation for failing to accept Mr Power's offer.  He brought the dismissal on his own head by failure to comply with what was an eminently reasonable request by a witness who impressed as a fair employer.  The applicant failed to act reasonably by continuing with his belligerent approach of the day before.  He failed to discharge his obligation of co-operation in the agreement between them.  Reasonableness must be looked at from the position of both parties:  see Gibson v Bosmac Pty Ltd (1995) 130 ALR 245 at 253.

The respondent was faced with an employee who would not meet the minimum standards of civility expected in a workplace. His refusal stalled the resolution of the matter. In these circumstances the employer had no obligation to continue the employment relationship. It had no obligation to continue to argue with the applicant. In these circumstances, the applicant has not shown that the respondent has breached either s170DE(2) of the Act or s170DC of the Act.

The opportunity to respond to allegations imposed by s170DC could not be met as a result of the applicant's own actions and so the respondent was entitled to rely on s170DC(b) in these circumstances.

Further, if it were necessary to do so, the respondent would also be entitled to point to the applicant's actions to found a compelling argument that no remedy should be granted under s170EE(1) of the Act due to the applicant's own actions in refusing the reasonable request of Mr Power. As the respondent had paid the applicant three weeks pay in lieu of notice, it has not breached s170DB of the Act.

The applicant has not proved any breach of the Act, the application must be dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. The application is 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 nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:                 
Dated:  24 May 1996

Solicitors for the Applicant:          Gill Kane & Brophy
Counsel for the Applicant:            Mr P Morrissey

Solicitors for the Respondent:      Freehill Hollingdale & Page
Counsel for the Respondent:         Mr M McDonald

Date of hearing:  24 May 1996
Date of judgment:  24 May 1996