Graham Philip Forster v Stainless Tube Mills (Aust) Pty Ltd
[1995] IRCA 51
•27 February 1995
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 1702 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N:
GRAHAM PHILIP FORSTER
Applicant
A N D
STAINLESS TUBE MILLS (AUST) PTY LTD
Respondent
Reasons for Judgment
27 February 1995 PARKINSON JR
This is an application pursuant to S170EA of the Industrial Relations Act
1988 (“the Act”).
The applicant seeks the following orders:
An order declaring the termination of the employer’s employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act;
an order requiring the respondent to reinstate the employee in employment; and
an order that the respondent pay compensation to the employee.
During the course of the proceeding the court was informed that the applicant no longer sought an order for reinstatement.
Background and findings of fact.
The applicant who is 31 years old is a qualified fitter and turner with various additional post trade certificates. He was employed as a machine shop operator at the respondent’s engineering workshop in 1988. He was promoted in 1989 to the position of foreman and remained in that position until the termination of his employment on 19 September 1994. At the time of the termination of his employment, the applicant’s immediate supervisor was Mr Andrew and he was also subject to direction from Mr Kastropil, a director of the respondent.
The reasons given for the termination of the applicant’s employment were contained in the affidavit of Mr Kastropil dated 6 October 1994, those reasons being “poor and fraudulent timekeeping.” The reasons were also set out and expanded upon in a further affidavit sworn by him on 6 February 1995 (Exhibit L3) as follows:
that contrary to verbal and three written warnings, the applicant had
failed and refused to attend work at proper starting times.
the applicant worked inefficiently during normal working hours and
then claimed excessive and unnecessary hours of overtime.
the applicant left the workplace after clocking on without permission
or just cause, thereby claiming pay for hours of work which had not
been performed.
the applicant clocked on for overtime after all other employees of the
respondent had left the premises. As a result, in view of his poor
productivity, it was apparent that the applicant was claiming hours of
overtime that he had not worked.
on Thursday 15 September 1994 the respondent had claimed hours of
overtime which he had not worked.”
These were the matters relied upon as the reason for the termination of the employment on 19 September 1994. The overtime claims and the absence from the respondent’s premises as set out in (iii) above were said to constitute fraudulent timekeeping on the part of the applicant. I now turn to consider each of the matters set out above in turn in relation to the operation of S170DE ( 1) and (2).
Lateness for work.
The evidence is that the applicant had a poor record of attendance for work on time. In September 1993 the applicant was given a written warning as to his tardiness in attendance (Exhibit P2). The evidence was that after this written warning the applicant’s attendance level improved for a period of time. He received no further warnings for any reason between September 1993 and June 1994. The evidence is however that this improvement was not maintained and that there was during the course of the employment a pattern of lateness in attendance. A further written warning was given to the applicant regarding his late attendance on 14 June 1994 (Exhibit P4).
On 5 May 1994 the applicant was injured during the course of his work when a motor weighing approximately 80 kilograms fell approximately 1.8 metres onto his back. The applicant’s absence from the workplace was short and he made significant efforts to return to work very shortly after the accident. His return to work was effected by way of light duties for a period of time. This injury required ongoing physiotherapy treatment and the applicant’s evidence was that he was in significant ongoing pain. His evidence was that the injury resulted in his flexibility of movement being significantly reduced particularly in the mornings when the pain was more intense, and that he required a period of time to warm up. Usually his physiotherapy appointments were scheduled for the mornings for this reason.
The applicant acknowledged that he was frequently late in the mornings for work, but says that this lateness is explained by his injury and difficulty in movement in the mornings, and his physiotherapy attendances. There is evidence in the form of clock cards that the applicant’s lateness for work was an ongoing problem and that it existed prior to the injury being suffered (Exhibits L1 and L2). However aside from a warning in November 1993 , the only other written warning in relation to the applicant’s lateness was given on 14 June 1994 during the period in which the applicant was suffering from the back injury (Exhibit P4).
Whilst the respondent describes its letter of 20 June 1994 (Exhibit P6) as a further warning letter, it is merely a reply to the matters raised by the applicant in his response to the warning of 14 June.
The applicant’s reply (Exhibit P5) to the warning letter of 14 June 1994 acknowledged his lateness but asked for some indulgence because of the difficulties he was suffering with his back. He requested that the respondent allow him an 8.30 a.m. to 5.00 p.m. day until he was no longer on light duties. The respondent agreed to this in part, but limited its operation to 1 August 1994 (Exhibit P6). There was no suggestion that during that period of modified hours the applicant did not comply with starting or finishing times, and no clock cards were tendered in relation to this period of time.
There is no evidence to suggest that there was any reason referable to the continuation of the applicant’s injury or recovery from that injury which formed a basis for the adoption of the 1 August time frame. No discussions were held with the applicant’s physiotherapist to attempt to ascertain a reasonable time frame for renewal of ordinary starting times. The evidence was that the effects of the applicant’s injury continued after the 1 August. The evidence also was that the applicant did not meet his starting time once it reverted to 7.30 a.m.
In this case I am satisfied that there was a persistent failure to attend for work on time despite the expressed concern of the respondent, and thus the respondent did have a valid reason for the termination of employment related to the conduct or performance of the employee.
However having regard to the circumstances of the applicant in this matter and in particular his back injury and the explanation offered to the respondent for his continued lateness and request for special consideration whilst on light duties, I am satisfied that the decision, at that particular time, to terminate the applicant’s employment by reason of his lateness was harsh. This is particularly so in light of there being no action taken by the respondent to establish the ongoing prognosis for the applicant’s injury, despite some recognition in Exhibit P5 that there was a basis for allowing the applicant later starting times.
One further matter arose in respect of this aspect of the applicant’s timekeeping which it is appropriate to refer to at this stage. The evidence of Mr Kastropil, when dealing with the issue of the applicant’s tardiness in timekeeping, was that the applicant took time off to go to the physiotherapist but did not seek permission or inform the respondent in advance. This evidence was contrary to that given by Mr Andrew who said that the applicant did inform him in advance of his physiotherapy appointments and did seek his permission. There was a significant amount of overstatement of the evidence by the respondent in these proceedings. It is apparent that the applicant behaved properly in relation to his absences for physiotherapy treatment and that there was no basis for such criticism as was made by the respondent in this regard.
Working inefficiently - Length of time to complete work.
A number of examples were given as to the basis upon which it was alleged that the applicant did not perform his work efficiently. I deal with each of those examples individually although they were relied upon cumulatively.
The Queensland Job
In August 1994, the applicant was sent by a director of the company, Mr Martin to perform work on hydraulic equipment located at the respondent’s operations in Queensland. The applicant was the subject of criticism by Mr Kastropil for the time spent in completing this job.
The applicant’s evidence was that he arrived in Brisbane and travelled to the respondent’s premises on Saturday. On his arrival he found the premises to be closed for the weekend. He attended at the premises first thing on Monday morning, and his evidence is that he worked consistently on the repair job until it was completed on Thursday afternoon. He returned home that evening and presented for work in Melbourne on Friday morning.
There was no evidence to suggest that the length of time taken to complete the job was unreasonable. The applicant had been sent to do the job because of what the respondent believed to be an excessively priced quotation from outside contractors to perform the job. Whilst there was criticism from the respondent’s director Mr Kastropil as to the amount of time the applicant spent on the job, there was no suggestion in the evidence that the exercise was not cost effective for the respondent.
There was no evidence to contradict the applicant’s evidence as to the nature of the work to be completed on the machinery and the reasons for the job taking the length of time that it did. I am not satisfied that the criticisms of the respondent in this respect were valid.
The Vehicle Delivery.
On 4 February 1994 the applicant used his own accrued rostered days off to travel to Queensland to deliver a vehicle on behalf of the respondent. This arrangement had been made with Mr Martin, a director of the respondent. He was not called to give evidence in the proceedings. Mr Kastropil criticised the applicant for being absent from work on rostered days off at a time when the workload of the respondent was heavy. He also criticised the applicant for failing to clear the arrangement with him. The implication of his evidence was that he had no knowledge of the arrangement.
Even were I to accept this evidence, the problem rests with the level of communication between the respondent’s directors and not with the applicant. No evidence was called to contradict the applicant’s evidence that he was given permission to use his rostered days off and be absent at that time. I am not satisfied that this criticism of the applicant was valid.
The Acid Tank Repair.
The applicant was criticised for the length of time he took to repair an acid tank. He was not accused of not performing any work during that time, but rather it was said that the extent of the work he did was unnecessary. The applicant made various decisions about what was required to repair the acid tank properly and I accept that these decisions were appropriate. He was not instructed to do anything other than repair the tank. No instructions were given as to the extent of work to be done or any limitations in that regard. I do not accept that this criticism of the applicant was valid.
One further aspect of this matter was the allegation that by working inefficiently the applicant had claimed unnecessary and excessive amounts of overtime. I deal with the question of overtime in the period 14 to 16 September 1994 later in this decision, however I am satisfied having regard to the evidence of the extent of the repair work performed, and the evidence of Mr Andrew that he would view two hours of overtime per day as reasonable, that the applicant had not worked inefficiently nor claimed unnecessary or excessive amounts of overtime at any time prior to 14 to 16 September 1994. The clock cards (Exhibits L1 and L2) confirm that the pattern of the applicant’s overtime was consistent with the expectations of Mr Andrew. This criticism of the applicant was not valid.
Standard of work and skills - faulty machining
During the course of the applicant’s employment there appear to have been no difficulties with the standard of his work or skills until Friday 16 September 1994. The respondent’s evidence was that in the week preceding the termination of the applicant’s employment he performed faulty work on a piece of equipment. This fault was relied upon as one of the reasons for the termination of the employment. The initial evidence of the respondent in the affidavit of Mr Andrew (Exhibit L5 ) was that the equipment was rendered useless because of the fault. His oral evidence in the proceeding was, however, that the equipment was not useless but required adjustment before it could be used. The applicant’s evidence was that whilst there was a minor fault in the machining it was not positioned in such a way as to affect the use or application of the equipment. I am of the view that the respondent overstated the degree of the effect of the fault in the workmanship on the usefulness of otherwise of the equipment and I accept the applicant’s evidence in this regard.
Fraudulent time-keeping
I deal in this aspect of the decision with the matters set out herein at (iii), (iv) and (v) of the reasons for the termination at pages 2 and 3 of this decision.
It was alleged that on 14, 15 and 16 September 1994 the applicant had defrauded the company by remaining at work for excessively long periods
of overtime and not really working during that time, and by clocking on at work and then not working but leaving the premises and going on a frolic of his own. The circumstances of the overtime relate to the completion of the work on the relevant job discussed earlier in this decision.
The first allegation relates to the applicant’s hours of attendance at work on the afternoon and evening of the 14 September to the early hours of the morning on 15 September. It is alleged that those hours were excessive and unnecessary. This allegation is made on the basis of the evidence as to the mistake in the job, discussed earlier, and the nature of the job not requiring such lengthy amounts of time . The evidence of the applicant was that the job was not a job frequently undertaken and that it required a significant amount of work to get it to the stage of sending to the hardeners. His evidence was that there was pressure to complete the job and that he had undertaken to work as long as was required to get the job done. He indicated that he had given this undertaking to Mr Andrew. Mr Andrew’s evidence confirmed this. At paragraph 16 of his affidavit (Exhibit L5) he said:
“He clocked off at 4.26pm and clocked on again at 6.49 pm. At
9.15pm that day the other Engineering Workshop employees and
myself left for the evening but the applicant stayed on. The applicant
stated at this time that he would be approximately another 2 hours but
would stay all night if necessary to have the roll ready for the heat
treatment company (Hardeners) on Thursday 15 September.”
There is no evidence that any limitation on overtime that evening or direction as to hours of work was imposed on the applicant by any person in authority, including the applicant’s supervisor Mr Andrew. The evidence is that the applicant was on the respondent’s premises until he clocked off at 3.49 a.m. on 15 September.
Having regard to the fact that the evidence was that the job had to be completed, it is unfair and unreasonable of the respondent to rely upon the fact that it had overtime approval forms that were required to be completed before undertaking overtime and that in this period this did not occur.
This is because the evidence was the job was urgent and had to be completed. The applicant had undertaken in a discussion with Mr Andrew to work as long as required to complete the job. Mr Andrew raised no objection to this undertaking. The evidence of the applicant, which I accept, is that Mr Andrew verbally authorised the overtime when he said words to the effect of ‘he didn’t care how long the job took, just get it done’.
The second allegation relates to the applicant’s hours of attendance at work on the afternoon of 15 September until 1.00 a.m. on 16 September. The allegation is that the applicant clocked on at 4.29 p.m., and then left the premises without permission or just cause and did not return until 8.00 p.m.
However the evidence of the applicant, which I accept, was that he left the premises after clocking on to collect the relevant job from the hardeners, and that the respondent had requested this to be done. This evidence is consistent with the evidence of Mr Andrew at paragraph 16 of his affidavit of 6 February 1995 (Exhibit L5).
The applicant’s evidence was that upon arrival at the hardeners the job was not ready to be moved as it was still too hot to be touched. He waited until it was ready, had dinner and then returned to work. This was at approximately 7.00 p.m.
Mr Andrew’s evidence was that he knew the applicant was absent between 4.29 p.m. and 7.00 p.m. as he had been advised by other employees that the applicant had gone to collect the job from the hardeners and to get his dinner. There were no steps taken to ascertain the whereabouts of the applicant during that period of time. Notwithstanding that the respondent says that the applicant should not have taken so long at the hardeners, with the inference being that there was no delay, no enquiries were made of the hardeners and no evidence was called to refute that applicant’s evidence as to the time it took for the job to be collected. Mr Andrew left the premises at 7.00 p.m. along with all other staff. The applicant’s evidence was that he finished the job by hand machining and that he clocked off at 1.07 a.m. on 16 September. On Mr Andrew’s own evidence the applicant was authorised by him to continue working overtime on that evening until 12.00 a.m. There is no basis on the evidence before me to suggest that the applicant did not attend at the premises during that time, or that he did not work or work efficiently during his working time, or that he claimed for unauthorised overtime.
I am not satisfied that the respondent was fraudulent in his time-keeping at any time during his employment with the respondent and I find that this allegation was not true and did not constitute valid reason for the termination of the applicant’s employment.
Having regard to all of the matters considered herein, I am not satisfied that the respondent had a valid reason for the termination of the applicant’s employment on 19 September 1994. Consequently, I find that in terminating the employment of the applicant, the respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
Remedy.
The applicant has not been employed on a permanent basis since the date of the termination of his employment. He has been able to obtain some casual or temporary work through an employment agency. The applicant informed the court that he had no wish to return to work for the respondent. This was because he felt that the relationship between himself and Mr Kastropil was irretrievably broken down. I am inclined to accept this is so particularly because of the allegations of fraudulent conduct made by the respondent and the close working relationship necessary in the circumstances of the employment.
I have decided that in the circumstances it would be impracticable to order the reinstatement of the applicant and have decided to order compensation.
I have considered the amount of compensation which ought be ordered having regard to the circumstances, and the future employment prospects of the applicant. The applicant had been in the employ of the respondent for almost seven years. I am satisfied that, but for the unlawful termination, the employment was likely to have continued for a further period, however having regard to the problems between the applicant and Mr Kastropil in my view it is not likely that the employment would have continued beyond a further six months.
The applicant‘s gross earnings in the week 9 August 1994 were $ 725.58 (Exhibit P8). This amount included amounts for overtime worked. Whilst the amount paid in lieu of two weeks notice by the respondent recognised the applicant’s gross weekly pay as $834.61 (Exhibit P7), I am satisfied that the difference in these amounts is indicative of the variation in the amount of overtime performed by the applicant in any one week. I am satisfied that the appropriate amount of weekly gross earnings is the lesser amount contained in Exhibit P8 and it is that amount upon which the calculations of compensation are based.
The applicant is 31 years of age and is a skilled tradesperson with good future employment prospects. Whilst he had not at the date of the hearing obtained permanent employment, he had been successful in obtaining regular casual employment and I am satisfied that, at the very least, the applicant would continue to have available to him regular employment of a casual nature.
Having regard to these matters I have decided to order payment of compensation of $9,195.86 which is an amount calculated by reference to an amount of six months pay (26 weeks) being the likely length of the employment discussed above, less the amounts received by way of termination pay of $1,669.22 and the amount earned in casual employment which, at the date of hearing, was by my calculations a gross amount of $8,000.00.
The orders of the court will be:
That in terminating the employment of the applicant, the respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
That the respondent pay to the applicant compensation in the sum of $9,195.86 within 21 days of the date of this order.
I certify that this and the preceding fifteen (15) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.
Associate:
Dated: 27 February 1995
Representative for the applicant: Automotive, Food,
Metals & Engineering Union
Representative appearing for the applicant: Mr M Perica
Solicitors for the respondent: Tollhurst Druce & Emmerton
Solicitor appearing for the respondent: Mr I Lulham
Dates of hearing: 6 and 9 February 1995
Date of judgment: 27 February 1995
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