Gordon Jung v Tempo Services Ltd
[1995] IRCA 321
•20 July 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2189 of 1995
B E T W E E N:
GORDON JUNG
Applicant
AND
TEMPO SERVICES LTD
Respondent
BEFORE: JUDICIAL REGISTRAR CHANCELLOR
PLACE: MELBOURNE
DATE: 20 JULY 1995
REASONS FOR DECISION
This is an Application pursuant to section 170EA of the Industrial Relations Act by Gordon Jung with respect to the termination of his employment as a site clean supervisor by Tempo Services Ltd on 23 February 1995.
The Applicant gave evidence on his own behalf and called three other cleaner employees of the Respondent to give evidence. Those employees were Maureen Leach, Angela La Micela and Helen Christou.
The Respondent called the following witnesses:
1. David Jordan, the Regional Manager for Victoria and Tasmania of the Respondent from the beginning of December 1994;
2. Peter Gilbert the Operations Manager of the Respondent;
3. Azizan Carlstrom (nee Grumbridge), one of the Area Managers of the Respondent;
4. Barry Hyett, a Night Shift Leading Hand;
5. Heather McDonald, the Food Court Supervisor;
6. Joe Gomes, a Food Court Cleaner; and
7. Margaret Moran, a Union Organiser.
The Applicant is aged 52 and is married with a 9 year old daughter. He has a limited education and since age 15 has worked in manual and labouring type jobs. He has been a cleaning supervisor at Northland since November 1989.
Tempo won the contract to clean five Gandel Group shopping centres, including Northland and Chadstone, from August 1994. They took over the existing contract and pursuant to a union agreement the existing employees continued in their positions. Mr Gilbert said that there were a number of changes introduced by Tempo in order to try to improve the cleaning situation at the Northland shopping centre including changes to labour, rosters, equipment and the introduction of a non-working supervisor. The union described the situation as volatile and indeed it seems there were regular changes in rosters and personnel and there was certainly a climate of change.
The Applicant’s position was changed from that of working supervisor to a non-working supervisor. Apart from supervising staff he became responsible for rosters,
job description, time sheets, organisation of the site Christmas party as well as ensuring that the staff adapted to the changed situation. Mr Jung attended a training program and was given a detailed job description. Mr Gilbert gave evidence that the previous Chadstone centre site supervisor had been changed after six weeks because he was unable to cope with the new situation.
The Centre management at Northland had requested that Mr Jung stay on as the new non-working supervisor and he continued in that position.
However, there were a number of on-going problems at Northland resulting in meetings with Centre management in the first half of December where eventually an ultimatum was effectively given that the standard of cleaning had to improve dramatically or the Tempo contract was at risk.
By this time, Tempo was unhappy with the Applicant’s performance. He was counselled by Peter Gilbert and Azizan Carlstrom in December. A written warning in very general terms was prepared urging him to improve his performance. The written warning was left on the Applicant’s desk. The Applicant denied receiving the warning and I accept his evidence on this point, given that it was not signed and returned as was the normal course of events nor was there any follow-up carried out by Tempo. The Applicant had been asked to improve the flexibility of his working hours and, following the counselling, the evidence was that he came in later, started earlier and generally showed the flexibility required. Azizan said that the Applicant had trouble handling the rosters, time sheets and development of job descriptions for each of the cleaners. The Applicant said that he thought he performed those tasks O.K. but, given that he had no prior experience compared to Azizan who had quite considerable experience in such matters, I accept her evidence that the Applicant struggled to cope with the new paper work requirements.
The union had received complaints about the Applicant’s sometimes abrupt manner in dealing with the cleaners and spoke to Azizan. Margaret Moran confirmed that the Applicant had always acted with that sort of manner. Azizan recalled only one specific complaint to her and she counselled the Applicant by saying that it was “unnecessary to have that manner.” The evidence also indicated that the Applicant had sworn at two female employees on one occasion each, although I am not sure whether this was in the pre or post Tempo period but no further allegations were made.
All in all, Azizan felt that the Applicant was struggling with his new non-working supervisor’s position and needed help and support. She spent much more time at Northland than she normally would and, indeed, spent approximately a couple of weeks full-time at the Centre. Further, the area Food Court supervisor, Louise, became almost full-time both to assist with the Food Court who had a new supervisor, Heather McDonald, and also to help out with the paperwork.
Events came to a head on 15, 16 and 17 December 1994. One of the night shift cleaners was away on holiday. The Applicant had responsibility to organise his replacement. He did not organise one for the first night but said that he would turn up himself. The Applicant failed to attend and was unable to provide a satisfactory explanation. He merely told the night shift supervisor to “do the best you can” and this meant that, being one cleaner short, the night shift was unable to complete the work up to the required standard. On the second night, the Applicant arranged for a replacement to be present. The Applicant said that the replacement told him that he was an experienced floor scrubber, and Barry Hyett and the Applicant agreed that the Applicant spent a couple of hours with the replacement at the start of the shift showing him the operation of the machine. Unfortunately, the replacement obviously could not cope and, effectively, one end of the Northland Shopping Centre was left uncleaned. This served to amplify the on-going problems. The next day, David Jordan and the Applicant walked through to inspect the site and saw that there were considerable problems. David spoke to the Applicant and confirmed his concerns in writing. The letter said in part:
“The following points were obvious:
The north end area of the Centre had not been cleaned.
Insufficient water was used in the scrub machines causing streaking and dirty patches.
Chewing gum had not been removed, and heavy build up was evident in the Food Court area.
Edge cleaning and mopping was not done.
Major doorways had not been cleaned properly.
The following action points were agreed:
Barry (night scrub leading hand) is to be counselled and given a verbal warning. Job description is to be reiterated.
Additional labour (6 hours) is to be used on a once only basis to clean up chewing gum (Peter Gilbert to action).
A review of the chemical used in scrub machines is to be undertaken by Peter Gilbert to establish effectiveness.
Methodology of scrub team to be undertaken by yourself.
The Food Court entrance is to be gurneyed as soon as possible.
You are to ensure both the night and day staff use their scrapers to remove all gum as they clean through. I cannot emphasise enough that it is up to you as supervisor to ensure the standards and discipline are maintained.”
The plan of action was duly undertaken. The chemicals being used were reviewed. Problems with the brushes and squeegies on the scrubber machines were addressed. The Applicant said that he assisted by performing some of the physical work himself, sometimes outside his normal working hours. Staff training was carried out. With these changes and an increase in staff from 26 to 31 and the extra support from Azizan and Louse, the performance of the Centre cleaning improved.
This was confirmed by the winning by the Northland Centre of the Gandel Group January “Clean Team Award”. Each of the five Gandel sites cleaned by Tempo was inspected by representatives of both Gandel and Tempo and percentage points awarded. Northland had an 86% success rate and a circular said: “Congratulations to Gordon and team who receive the January trophy and a $25 gift voucher for each cleaner.”
One of the matters in the 6 point action plan required the Applicant to counsel and verbally warn the night scrub leading hand, Barry Hyett. On any view of it, this counselling session was very poorly handled by the Applicant. He effectively attempted to lay all the blame on Barry and, during the session, handed Barry a blank resignation form for Barry to fill out and return. In what was a verbal warning situation (the Company then has provision for a 3 step written warning process), the handing over of a resignation form by the Applicant was totally inappropriate.
The next day, Barry spoke to Azizan and complained. She told him not to resign, but did not speak to the Applicant about the incident, and nor did any other managers speak to the Applicant about it.
The Applicant was given responsibility to organise the Northland Centre cleaning staff Christmas party. He chose to hold the party off site and arranged to book a room in a Preston hotel. There was a poor response from the staff and the Applicant’s proposed party fell through. The Applicant sought to blame Tempo for not providing money for the party but, based on the evidence of Peter Gilbert and Azizan, I do not think that this was the case and, in any case, it does not represent an adequate excuse. I accept the Applicant’s evidence that he was prepared to put in some of his own money to support the party but, although his heart may initially may have been in the right place, his people and management skills were not.
Management became aware that the party was not going ahead and saw that a morale problem existed. Azizan took responsibility for the Christmas party which eventually took place on site. In what he agreed was “an act of retribution,” the Applicant failed to attend the party except for a very few minutes when he happened to be in the vicinity. This seems to be highly inappropriate behaviour for a site supervisor, particularly given the problems which the site had been having.
On the morning following the Christmas party, David Jordan counselled the Applicant, indicating to him that he should have organised, attended and shown leadership to weld the staff together as a team. David said that Gordon was sheepish, showed some remorse and blamed it on Tempo not forwarding the cheque.
The Applicant’s termination was precipitated by an incident which occurred on 17 February 1995 following a party which was held at the Northland Shopping Centre to celebrate its victory in the January “clean team” award. The Applicant left the party and went to check the floors and then the Food Court area. An altercation followed between the Applicant and Heather McDonald. Their versions of what took place differed quite considerably except that both agreed that, when Gordon arrived at the Food Court, the cleaners were standing around and chatting and not doing their duty, being somewhat excited having just come from the clean team party.
Heather described the Applicant as wild, confused, angry, frustrated, constantly swearing - in particular, regularly using the word “fucking” - looking like a caged wild animal, pacing the Food Court and frightening the other female cleaners who were running around like robots. She said that she tried to get the Applicant to calm down, sit down and have a coffee, but that he continued abusing and threatening her. Heather said she felt intimidated, the Applicant towered over her and that this caused her to cry. She also said that she grabbed a Centre security guard and he called the Centre Manager. She said that the Applicant’s conduct was an embarrassment to the Centre. After a number of clashes, she said that finally the Applicant moved his hands toward her in a strangling type manner and said, “I’m not fucking coming in tomorrow.”
The Applicant admitted that he was unhappy when he arrived at the Food Court and saw that the cleaners were talking and not working and that the Food Court was a bit of a mess. He said that he fronted Heather and admitted that the was upset and angry. He denied using the word “fucking,” denied towering over and intimidating her, denied aggressively pacing the Food Court, but said that he grabbed a rag and went quickly up and down helping to clean the tables and to set an example for the other girls. He denied holding his hands in a strangling type motion and said that the incident finished with him saying: “I don’t think I’ll be in tomorrow.” The Applicant denied that he was drunk or under the influence of alcohol.
Only two other witnesses were called in relation to what took place in the Food Court Hall - Angela by the Applicant and Joe by the Respondent. Angela gave evidence that the Applicant was very angry when he reached the Food Court because the girls were not working and the Food Court was a bit of a mess. She said that he started cleaning the tables, pacing quickly beside the girls. The Applicant said that she was running from table to table to catch up with the work that had to be done but denied that she was frightened. She overheard a brief part of the conversation between Gordon and Heather and said that Gordon was not yelling, not swearing, that there were a lot of people around and that he knew how to behave. At one stage, she saw Gordon leaning over Heather, but said that the Applicant always leaned over all of the staff - “he is tall, we are small, that was his manner.” The Applicant was angry and Heather was trying to calm him down. Angela said that she went to speak to the Applicant, but he was angry and said, “If you want to speak to me, see me on Monday” and patted her on the back and sent her back to work. Angela agreed that it was a very large Food Court and that she could not see or hear Gordon at all times, but the tenor of her evidence indicated that she was certainly not aware of anything that would be an embarrassment to the Centre or would require the calling of security.
Joe Gomes gave evidence that he saw Gordon arguing with Heather. He saw him going to throw his hands towards her throat but he did not touch her. He heard Gordon say, “I won’t come back tomorrow.” He did not hear Gordon swear. He said that two customers asked who Gordon was, which suggested that perhaps there was some concern over his behaviour, but this matter was not pressed.
There were a number of obvious witnesses who were not called - the other two female cleaners in the Food Court, the security guard who was allegedly called and neighbouring Food Court holders, some of whom would surely have witnessed the on-going incident as described by Heather McDonald. The Centre Manager was not called although I understand the Respondent’s submission that it did not want its client involved in this matter. Further, Heather McDonald said during her cross-examination “I had people see how he acted and what he done - I have someone who did see it.” The identity of this person was not followed up in re-examination and nor was such a person called.
In the absence of such corroborative evidence, there is certainly a strong suspicion that Heather McDonald exaggerated the extent of the incident. She was unhappy with the Applicant prior to the incident saying that he interfered with the way she did her job and that he would take girls away from her. She had previously threatened to resign as a result of her relationship with Gordon. The type of abusive language she complained of was denied by Gordon and was not heard by the only two witnesses called. Further, Azizan said that, when Heather complained of the incident to her, there was definitely no mention made of any swearing which appears strange given the nature and the extent of the language alleged by Heather. In her evidence, Heather denied that the Food Court was messy which seems illogical given the fact that the cleaners had been at the party and she agreed that they were talking and not working when Gordon arrived. Perhaps the fact that she was caught out not properly supervising the Food Court cleaners contributed to her perception of the incident.
All in all, I am not satisfied that the Respondent has established that an incident to the extent complained of by Heather McDonald occurred.
On the day of the incident, Heather spoke to Craig Bramage, the Northland Centre Operations Manager. Her evidence was that he indicated to her that he did not want Gordon to remain at the Centre. The next day, Heather spoke to Azizan on the telephone to complain about the incident. Heather said that she told Azizan what she told the Court. Azizan gave evidence that Heather told her that Gordon spoke in quite a loud voice, accused her of trying to get his job, was drinking a bit, frightened her, was in a state of mind and that security was involved and the client was involved. In cross-examination, Azizan said that there was no complaint of swearing and that Heather did not tell her what was said. Heather was upset and intended resigning. Azizan subsequently discussed the matter with Peter Gilbert and, on the following Wednesday, attended a meeting with Centre management.
Peter Gilbert gave evidence that Azizan had told him that Gordon was intoxicated, that he swore at some cleaners, that he created a scene, that he was escorted away by security. None of those matters accord with the evidence of Azizan nor do they accord with the evidence given to this Court. None of the witnesses who had seen Gordon either at the party or in the Food Court suggested that he was intoxicated, there is no evidence that he swore at any of the cleaners other than Heather McDonald and even that is very much in dispute, there was no specific evidence that he created a scene and no evidence that he was escorted away by security. On the basis of his mistaken belief, Peter Gilbert formed the view that, unless Gordon provided a satisfactory explanation, he should be dismissed. He also said that, if Gordon proved something else, he may still be working. Depending on the true extent of the altercation, a verbal warning, written warning, demotion or transfer might all have been considered.
David Jordan gave evidence that he received a call from Azizan on the Monday morning indicating that Gordon had threatened Heather McDonald, that he was abusive toward her and that he put his hands up to her body looking as though he was ready to throttle her. Her was sure that he received such a call even though this did not accord with the evidence of Azizan. He said that he spoke to Craig Bramage briefly on the Monday, trying to ascertain facts and that he was getting mixed impressions. It seems more likely that the information he says he gained from Azizan was in fact gained from Craig or from some other source. David Jordan said that he told Azizan on Monday that, if Gordon provided no satisfactory explanation, he would be dismissed. It appears that at some stage he talked to the union about Gordon although the evidence from the union suggests that it was not specifically in relation to the Friday night incident.
The Applicant injured his back changing a tyre and only worked for a couple of hours on the Monday and Tuesday. A meeting was arranged with Centre management on Wednesday at which Azizan, Peter Gilbert, Craig Bramage and Gordon Jung attended. All witnesses agreed that Gordon was obviously distressed and in some pain because of his back condition and Peter Gilbert suggested that he see a doctor and get back to them when he was ready to talk.
On the Wednesday evening, David Jordan asked Azizan to contact Gordon to find out when he would next be at work. Azizan gave evidence that either during this conversation or in the telephone call with David Jordan the next morning that she was told that Gordon would be dismissed. This was denied by David Jordan. Gordon advised Azizan that he would be at work the next morning and David Jordan and Peter Gilbert decided to meet him at work.
Shortly after 7 a.m. on Thursday, 23 February 1995, David Jordan and Peter Gilbert met with Gordon at his Northland site office. There is some conflict as to exactly what was said but it is certainly agreed that very little was said during the course of the discussion. Doing the best that I can, it seems that, in general terms, David Jordan opened the conversation by saying something like: “I guess you know why we are here, let’s sit down and discuss what happened.” Gordon probably replied with something like: “You have already made up your mind, it’s
no good talking to you guys.” David Jordan then again urged Gordon to talk about the matter. When Gordon said nothing, a period of silence ensued and, eventually, David Jordan gave evidence that he said: “I’m sorry, but after what’s happened, we will have to part company.” Gordon then got up, threw his keys on the table, swore and stormed out.
Both Mr Jordan and Mr Gilbert said that Gordon appeared very agitated, fidgeting and moving during the brief course of the discussion.
The next day, David Jordan rang Gordon and asked him to come in to the office and discuss the matter again. Gordon refused saying that he would only discuss the matter on site in the presence of the cleaners so that they could present their view to management. David Jordan felt this process was inappropriate and no further discussions took place.
WAS THERE A VALID REASON FOR THE TERMINATION?
David Jordan said that he dismissed Gordon because of the incident which was at the end of a long chain of events. He did not dismiss Gordon because he refused to discuss the matter on 23 February. He listed the following matters which were taken into account:
Tempo’s predecessor was dissatisfied with Gordon. No evidence was called to support this proposition and, indeed, Centre management had requested that Gordon be kept on and trained in a non-working supervisor’s role.
The inspections of 15, 16 and 17 December indicated that Gordon was not doing his job. However, evidence indicates that the performance of the Centre improved, admittedly with extra managerial support, and that the Clean Team Award was won in January.
In early December, Gordon had been counselled by Peter Gilbert and had received a written warning. I have already made a finding that Gordon did not receive the written warning.
The poor counselling of Barry Hyett by Gordon. David Jordan thought that Gordon had been spoken to in relation to this matter, but the evidence indicates that the matter had never been discussed with him.
Gordon had been counselled about leadership and handling staff after the Christmas party incident.
There were rumours or gossip about Gordon swearing at female staff and there were on-going communication problems between Gordon and both of his immediate underlings, Barry Hyett and Heather McDonald. David Jordan was unaware of these matters having ever been previously put to Gordon.
It was also put by the Respondent’s counsel that Gordon had been doing some on-site cleaning of one of the shops at Northland, Star Flowers, and this placed him in a position of conflict of interest with Tempo. Gordon said that he had mentioned the Star Flowers cleaning to Azizan and she confirmed this in her evidence. Both Mr Gilbert and Mr Jordan said that, if it had been known that Gordon was carrying out such cleaning work, he would have been told to stop and he would have been warned that the behaviour was unacceptable, but that it would not have led to termination. In any case, I am of the view that such a matter cannot be relied upon by the Respondent to substantiate a valid reason because it was not known to and not relied upon by the Respondent at the time of termination.
In view of the Respondent’s own disciplinary procedure which generally required a first, second and then third and final written warning prior to termination, none of these matters amounted to a valid reason for termination. Further, given my finding that the Respondent has not established that an incident to the extent complained of by Heather McDonald occurred, there is every chance that an incident of lesser import would not have justified the termination.
WAS THE TERMINATION HARSH, UNJUST OR UNREASONABLE?
The Respondent submitted that, in accordance with the decision in Byrne and Frew v Australian Airlines Ltd 120 ALR 274, procedural fairness required that there be a reasonable investigation, that the allegations be put to the employee and that the employee be given the opportunity to be heard in relation to the allegations and on the question of mitigation.
I accept that submission but, in my opinion, the Respondent has failed to accord the Applicant procedural fairness. In effect, there was no investigation carried out by the Respondent. A verbal complaint was received from Heather McDonald, but no detailed statement either verbal or in writing was taken from her. Neither Mr Gilbert nor Mr Jordan spoke to her in any detail in relation to the alleged incident. Apart from the fact that Azizan spoke to one of the cleaners, Joe, and the evidence does not indicate what was said, there is no evidence that any representative of the Respondent spoke to the other cleaners at the party in relation to any alleged intoxication of the Applicant, the other cleaners in the Food Court in relation to any alleged intoxication or Gordon’s conduct and behaviour, storeholders in the Food Court, the security guard who was allegedly called or, indeed, the witness who Heather McDonald alleged could support her story. It seems that the Respondent placed reliance upon information received from Centre management and perhaps on a lot of rumours which were apparently going through the Centre.
In my opinion, the failure by the Respondent to conduct even a basic investigation meant that it was never really in a position to properly consider the matter.
It also seems that despite having very limited and sometimes, especially in the case of Peter Gilbert, very incorrect information, that the Respondent had formed a very firm view, if not a final view, that the Applicant should be dismissed prior to even hearing from him. Perhaps there may have been some pressure placed on the Respondent by Centre management but, at the end of the day, it is for the employer to make a fair and considered decision.
The Applicant was obviously of the view that the matter had been pre-determined and this provides, at least in part, a reason for his reluctance to speak. At the termination interview, Gordon was never told that he was to be dismissed nor asked if he had anything to say in relation to any proposed dismissal. This means that matters such as warning, demotion or transfer were never really considered nor was the effect of the dismissal on the Applicant taken into account.
In all the circumstances, I find that the termination was harsh, unjust and unreasonable in breach of s170 DE(2) of the Act.
WAS THERE A BREACH OF SECTION 170 DC?
In my opinion, there was a clear breach of this section. None of the allegations relating to the incident of 17 February were put to the Applicant nor were the allegations of the alleged dissatisfaction of Tempo’s predecessor, the alleged poor counselling of Barry Hyett or the alleged swearing at female staff an on-going communication problems with Barry Hyett and Heather McDonald ever put to the Applicant. The Respondent argued that, because the Applicant refused to discuss matters at the termination interview, that it was not possible to put the allegations. I am unable to accept that argument. David Jordan could have outlined each of the allegations concerning the Applicant’s conduct and performance and asked for a response. Alternatively, given the Applicant’s apparent state of agitation and unwillingness to talk, the allegations could have been put in writing, delivered to him and his response sought.
REMEDY
In relation to the question of remedy where there has been a breach of s170 DC, Chief Justice Wilcox and Justice Keely in their joint judgment in Liddell v Lembke 127 ALR 342 at 359 said as follows:
“A similar situation applies in relation to a termination in contravention of s170DC, the procedural fairness provision of the Commonwealth Act. The effect of that section is that the dismissal of an employee in circumstances of procedural unfairness is unlawful. If procedural unfairness is established, the employee may be reinstated, unless this is impracticable; and, if it is impracticable, may receive compensation instead. This is so even if the employee was guilty of conduct that would have entitled the employer, adopting proper procedures, to terminate the employment under s170DE.”
Thus, it would seem that, prima facie, reinstatement should be the remedy in this case. Given the further breach of s170 DE(2) and the distinct possibility that if the Applicant had been accorded procedural fairness that he would have remained in employment in some capacity, the argument for reinstatement is compelling.
The Respondent argued that reinstatement to its Northland site and any one of the other four Gandel sites was impracticable. Both Barry Hyett and Heather McDonald, the two people immediately under the Applicant at the Northland Centre, said that they would not work with him. It is obvious that, for a variety of reasons, Centre management has lost confidence in Gordon. David Jordan gave evidence that if Gordon was reinstated to Northland, there was a real risk of the loss of the contract with both that site and the whole Gandel Group.
It seems to me that, with the number of changes brought by Tempo, that there was considerable pressure placed on the supervisors, leading hands and staff. Barry Hyett gave evidence that, when Tempo came in, the night shift hours were reduced from 8 to 6 and they were cut down by one and a half men, meaning that there were real problems getting the job done. With overall responsibility, Gordon became harder on Barry and later clashed with Heather who was having similar problems. It appears that Gordon, who naturally seems to have a fairly abrupt manner at times, had trouble coping with this extra pressure. Further, I do not think that Gordon was particularly suited to the non-working supervisor’s role with its increased paper work, indeed, he saw the need to keep working in any case. Peter Gilbert gave evidence that the Respondent was considering moving Gordon to a smaller shopping centre and that he was more of a “hands on” sort of person.
In my opinion, it is not in the best interest of either the Applicant or the Respondent to return Gordon to a position within the Gandel Group, but if there was no alternative, I would not hesitate to do so in this particular case. Fortunately, the Respondent is a large employer, employing over 800 employees pursuant to various cleaning contracts in a variety of hotels, shopping centres and other buildings throughout the metropolitan area.
Section 170 EE(1)(a)(ii) allows the Court to order the reinstatement of the employee to another position on terms and conditions no less favourable.
Therefore, it appears appropriate to order that the Respondent re-appoint the Applicant to a position of site supervisor either in a working or non-working capacity at one of the Respondent’s sites within a reasonable geographic proximity to the Applicant’s place of residence. The Act requires that the Applicant be re-employed with the same salary, remuneration and conditions that applied to him immediately prior to the termination. I also intend making an order requiring the Respondent to pay to the Applicant the remuneration lost by the Applicant because of his termination.
I order that:
The Applicant be reinstated by the Respondent to the position of a site supervisor in either a working or non-working capacity at one of the Respondent’s sites within a reasonable geographic proximity to the Applicant’s place of residence, and that the reinstatement take effect forthwith;
The Applicant be reinstated on the same salary, remuneration and conditions that applied to him immediately prior to his termination;
The period from 23 February 1995 to 20 July 1995 inclusive be treated for all purposes as continuous employment of the Applicant by the Respondent in the position occupied by the Applicant immediately before the termination of his employment.
The Respondent pay the Applicant remuneration at his pre-termination rate from 23 February 1994 to 20 July 1995 less any amounts received by the Applicant for work carried out by him in that period;
The Applicant provide the Respondent with written particulars of all remuneration earned by him in the period 23 February 1994 to 20 July 1995 within 7 days.
I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment of Judicial Registrar Chancellor.
Associate :
Date :
Appearances:
Representative for the Applicant: Mr B. Tee of Australian Liquor Hospitality & Miscellaneous Workers’ Union
Counsel for the Respondent : Mr C. Muir
Solicitor for the Respondent : Tanya Cirkovic & Associates
Dates of Hearing : 12, 13 & 14 July 1995
Date of Judgment : 20 July 1995
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - HARSH, UNJUST OR UNREASONABLE - PROCEDURAL FAIRNESS - OPPORTUNITY TO RESPOND - REINSTATEMENT
Industrial Relations Act 1988, s.170EA, s.170DE, s.170DC. s.170EE
CASES CITED
Byrne & Frew - v - Australian Airlines Ltd 120 ALR 274.
Liddell - v - Lembke 127 ALR 342
GORDON JUNG - v - TEMPO SERVICES LTD
No. VI 2189 of 1995
Before: Judicial Registrar Chancellor
Place: Melbourne
Date 20 July 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2189 of 1995
B E T W E E N:
GORDON JUNG
Applicant
AND
TEMPO SERVICES LTD
Respondent
CHANCELLOR JR 20 July 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The Applicant be reinstated by the Respondent to the position of a site supervisor in either a working or non-working capacity at one of the Respondent’s sites within a reasonable geographic proximity to the Applicant’s place of residence, and that the reinstatement take effect forthwith;
The Applicant be reinstated on the same salary, remuneration and conditions that applied to him immediately prior to his termination;
The period from 23 February 1995 to 20 July 1995 inclusive be treated for all purposes as continuous employment of the Applicant by the Respondent in the position occupied by the Applicant immediately before the termination of his employment.
The Respondent pay the Applicant remuneration at his pre-termination rate from 23 February 1994 to 20 July 1995 less any amounts received by the Applicant for work carried out by him in that period;
The Applicant provide the Respondent with written particulars of all remuneration earned by him in the period 23 February 1994 to 20 July 1995 within 7 days.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
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