Hilditch v Australia Post

[1997] IRCA 273

DECISION NO:273/97

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment -  whether VALID REASON - Punctuality

WORKPLACE  RELATIONS ACT 1988,   s.170DE

HILDITCH V AUSTRALIA POST

SA97/1013

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  7 MAY 1997

IN THE INDUSTRIAL RELATIONS COURT      )
OF AUSTRALIA  )
SOUTH AUSTRALIAN DISTRICT REGISTRY   )

No. SA97/1013

B E T W E E N:

PAUL HILDITCH

Applicant

AND

AUSTRALIA POST  
  Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  7 MAY  1997

THE COURT ORDERS THAT:

The Application is dismissed

NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT      )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No.SA97/1013

B E T W E E N:

PAUL HILDITCH

Applicant

AND

AUSTRALIA POST

Respondent

BEFORE:                 JUDICIAL REGISTRAR L FARRELL
PLACE:  ADELAIDE
DATE:  7 MAY 1997

REASONS FOR JUDGMENT
DELIVERED EX TEMPORE REVISED FROM TRANSCRIPT

The application comes before the court pursuant to the provisions of section 170ED of the Workplace Relations Act. The applicant claims that the termination of his employment was unlawful.

The applicant was employed as a postal delivery officer by the respondent from January 1995 until 17 October 1996.  Initially he was employed on a casual basis but in May 1996 he became a permanent employee of the respondent.  The applicant was dismissed because he was regularly late for work and because he failed to advise that he would be late or absent.

All employees at the Lonsdale delivery centre were required to start work by 6 am.  The applicant gave evidence that he has always found it extremely difficult to wake up in the morning.  He had sought medical assistance and on the date his employment was terminated he was due to see a specialist.  Since the termination of his employment he has undergone a sleep study.

The respondent has a manual for dealing with disciplinary matters.  The procedure set out in that manual was followed in relation to the termination of the applicant's employment.  Initially the applicant was informally counselled about his lateness.  On 30 January 1996 the applicant was formally counselled.  On 20 March 1996 he received a warning counselling.  On 17 May 1996 the applicant was again warned.  Mr Colin Brimson wrote to the applicant on 24 May 1996 making it clear that he could be dismissed if he continued to be late for work within the next six months.

In August 1996 the applicant was warned about an unrelated matter and it is clear that that matter was not taken into account in the termination of the applicant's employment. 

On 8 October the applicant was advised that there would be an inquiry into his conduct.  He had been at least half an hour late on at least three occasions in the previous month.  The inquiry was undertaken. Termination of the applicant's employment was recommended and the recommendation was accepted and the applicant's employment was terminated on 17 October 1996.

It was clear that the respondent put up with the problem because the applicant was in all other respects a good worker and well liked.

However, the respondent’s witnesses gave cogent evidence of the importance of punctuality by the applicant.

The applicant did not complain about the procedure undertaken by the respondent in relation to his conduct.  The applicant had two complaints about the termination of his employment.  Firstly, the applicant was concerned that the respondent did not take into account that he was by the time of his termination of his employment seeking medical assistance.  Secondly, had he rung in sick on the last occasion when he was late he would not have been dismissed.

In relation to the applicant's first complaint the medical report from the specialist did not indicate any further treatment that could have been offered to assist him.  It seems unlikely that his seeking medical assistance would have made any difference as to whether his employment was terminated.

In relation to the applicant's second complaint it seems to me that it would be wrong of the applicant to take the day off unless he was unwell.  However, given the number of times the applicant was absent by comparison to the number of times he was late it seems to me that the respondent’s failing to take into account that he should come to work, as the applicant put it "better late than never", I am satisfied that in the circumstances of this matter that the respondent had a valid reason for the termination of the applicant's employment.

I am also satisfied that the respondent gave the applicant an adequate opportunity to respond to the allegations against him.

The applicant was paid in lieu in relation to his entitlement to notice upon termination of his employment.

I therefore dismiss the application.

I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment.

DATE OF HEARING          :          7 MAY 1997
FOR THE APPLICANT      :          HIMSELF
FOR THE RESPONDENT :          MR COLGRAVE