Jamie Giles v Cercal Holdings Pty Limited (ACN 008 652 953) trading as Weston Cleaning Services
[1996] IRCA 78
•15 March 1996
DECISION NO: 78/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
AI 1243 of 1995
JAMIE GILES Applicant
CERCAL HOLDINGS PTY LIMITED (A.C.N. 008 652 953) trading as WESTON CLEANING SERVICES
Respondent
Coram: Judicial Registrar Linkenbagh
Place: Canberra
Date: 15 March 1996
REASONS FOR JUDGMENT
This is an application under the provisions of Section 170 EA of the Industrial Relations Act, 1988 in which the applicant seeks a remedy in respect of the termination of his employment by the Respondent on 25 July 1995.
The respondent had a contract with the CSIRO for cleaning its premises at Black Mountain and the proper performance of their duties by the employees who worked for the respondent was essential to the subsistence of that contract. The applicant commenced working at the site on 5 September 1994. Since January 1995 he worked in the Administration area, known as Building 1. This was a second job for him and he was a permanent Part-time employee working 40 hours a fortnight, from 5 p.m to 9 p.m Monday to Friday. During the day the applicant worked at the Canberra Institute of Technology in an administrative role.
The applicant is a 27 year old man who prior to the events which culminated in the termination of his employment was of excellent character and he had an unblemished work record with the respondent.
I find the following facts:
- on 12 July the applicant observed a person “hanging around” the Canteen area at the CSIRO during his shift, and he reported that fact to the security personnel
- during the night of 13 July there was a forced entry of the Canteen and cigarettes were stolen
- the applicant spoke to CSIRO personnel and Mr McCaul, his area supervisor and wrote a report about his observations on 12 July
- the applicant assisted the Police in their enquires into the theft
- Mrs Kosalka, another cleaner, told her husband at her home about the robbery, within the hearing of her daughter Julie who was the girlfriend of Paul, a friend of the applicant
- Julie informed the Police that the applicant was involved in the theft and the Police questioned the applicant
- the applicant telephoned Julie on 20 July and spoke to her about her actions. Julie telephoned Mrs Kosalka and said that the applicant had that evening and made threats against her
- on Friday 21 July at work Mrs Kosalka and the applicant argued about Julie’s action in “dobbing” on the applicant to the Police
- on Monday 24 July Mrs Kosalka told Ms Milne, the immediate supervisor of herself and the applicant, about the argument on 21 July and said that the problem was not work related
- the applicant and Mrs Kosalka were scheduled to work together on a special cleaning project on the Tuesday and Thursday of that week
- also on 24 July the applicant told Ms Milne that he had a problem with Mrs Kosalka and her daughter and that he did not want to work with Mrs Kosalka that week . Ms Milne affirmed that he would not have to work with Mrs Kosalka on the special project
- Ms Milne was not interested in the details of the problem between the applicant and Mrs Kosalka although she was told it related to a robbery and she made no independent enquiry
- Ms Milne reconsidered the issue overnight and on 25 July directed the applicant to work with Mrs Kosalka
- the applicant did not do so and went to his usual place of work
- Ms Milne spoke to Mr McCaul and they went to see the applicant . Mr McCaul directed the applicant to go and work on the special project and the applicant refused. Mr Mc Caul asked for his dust coat and keys and directed him to leave the site
- the applicant told Mr McCaul that he could not sack him and Mr McCaul said that he could do as he liked in the situation
- the applicant moved towards the entrance of the building with the intention of phoning his Union. Mr McCaul instructed him not to use the phone inside the building and a physical scuffle ensued. Both men inflicted blows on the other and Mr McCaul’s glasses were broken. The applicant then left the workplace
- the applicant reported the events to the Police and sought medical attention. Mr McCaul did neither
- the applicant contacted the Union the next day
- the applicant telephoned Mr Adler at the CSIRO and Ms Grassia at the respondent’s office. She informed him he had been “terminated for striking”
The applicant conducted his own case. He gave his evidence in a forthright manner and was credible. His perception that he was misunderstood and unfairly treated is very strong. He felt that he had done all he could to assist in the matter and was then accused of committing the crime. His frustration was increased when Ms Milne and Mr McCaul were not motivated to get to the bottom of the problem between him and Mrs Kosalka and took the easy line of presuming that it was personal to them and should not interfere with their work relationship. One can understand his point of view.
Ms Milne gave her evidence honestly. She readily admitted her lack of interest in the problem between the two workers and her change of mind which set the scene for the events of 25 July. The applicant was an excellent worker and there is no evidence of any prior difficulties involving him in the workplace. With the benefit of hindsight it is apparent that had Ms Milne been more perceptive and made some enquiry into the causes of the applicant’s refusal to work with Mrs Kosalka, particularly as the question of his involvement in a robbery was concerned, matters would have taken a different course.
Mrs Kosalka was placed in a difficult position because of her conflicting loyalties to her daughter, who can only be described on the evidence before me as a troublemaker, and her employer. Had she told Ms Milne the full reasons behind her conflict with the applicant matters may have taken a different course, as Ms Milne could not then have so readily accepted Mrs Kosalka’s false assertion that the problem was not work related. Mrs Kosalka was essentially an honest witness and she was of the opinion that she could not believe what happened to the applicant.
Mr McCaul was not a truthful witness. His assertion that he was motivated to act against the applicant because Ms Milne and Mrs Kosalka felt intimidated by the applicant is not supported by the evidence of the two women. His assertion that he never swears in the workplace was denied by the evidence of Mrs Kosalka and is not credible in the light of his use of phrases such as “he was upsetting the whole bloody building”, “ thank Christ”, “robbery bullshit” and “living shit” in the course of his evidence before me. Equally his manner and mode of speech when giving his evidence belied his assertion that he does not “get agitated”.
Mr Grassia and Ms. Grassia gave evidence. They were both credible witnesses whose attitudes and conduct in the matter were predicated on what they were told of the events of 25 July by Mr McCaul. It is perhaps regrettable that Mr Grassia, who appears to be a very fair man, was absent from Canberra at the time. He conducted an “investigation” on his return, but did not see fit to interview the applicant, probably because of the delay and the preconceptions created in his mind by what he was told by Mr McCaul, and concerns about the continuity of the respondent’s contract with the CSIRO.
I find that Mr McCaul exaggerated his account of the scuffle on 25 July and in particular his evidence that the applicant initiated the scuffle cannot be relied upon. Mr. Wilson for the respondent submitted that under the principle based on the decision in Jones v. Dunkel 1959 101 CLR 298 the applicant should have called the CSIRO personnel who witnessed part of the scuffle to substantiate his version of the events, and that as he did not do so, I should draw an adverse inference against the applicant’s version. I reject that submission, as it was equally open to the respondent to call those witnesses if their evidence would have assisted its case. I note the terms of a letter to Mr Grassia from the CSIRO dated 28 July, in which it refers to the incident and the witnesses, and expressly declines to “take sides” in the dispute. Mr McCaul’s judgment and actions were driven by a desire to get the job done and he was not minded to tolerate anything which interfered with that motive. He therefore failed to exercise caution and prudence in making his approach to the applicant in circumstances where, if he had ascertained the facts, he would, I am sure, have acted in a manner which was more fair to the applicant. It is understandable that he was annoyed in the circumstances, and I find that that annoyance contributed substantially to the cause of the scuffle, when Mr McCaul followed the applicant to the foyer after he had dismissed the applicant and made an issue of the use of the telephone by the applicant. I note also that although Mr McCaul gave evidence that the applicant was trying to kill him, he did not see fit to report the matter to the Police or to seek any medical attention.
The respondent’s case before me was that the applicant was dismissed because of the scuffle. I find that he was dismissed by Mr McCaul before the scuffle, and that the evidence before me supports the view expressed by Mr. Grassia in his letter to the CSIRO of 23 August, that
“I believe Frank (McCaul) had underestimated the ‘depth of feeling’ of the situation and was caught out by the intensity of the moment when he dismissed Jamie Giles and asked him to leave the premises”
In addition, there is no evidence of any words being said by any person on behalf of the respondent or any action to give effect to a decision to terminate other than the words said by Mr McCaul before the scuffle. There is no evidence to support the respondent’s contention that Mr McCaul could not have terminated the employment, because he had no authority to do so, and only had authority to suspend. The respondent gave evidence of its discipline procedures, which may have existed, but were not followed on this occasion. Mr McCaul held himself out to the applicant as having the authority to terminate his employment and if he exceeded that authority in terminating the employment then that is a matter between him and the respondent.
I find that the respondent is in breach of Section 170 DE of the Act, in that there was no valid reason for the termination of the employment. The applicant had tried to do everything correctly, and suffered because of the lack of candour on the part of Mrs Kosalka in her dealings with Ms Milne, the unexplained and unreasonable change of mind by Ms Milne, the aggression of Mr McCaul, and the failure by both of those persons to ascertain the real reasons for the refusal by the applicant to work with Mrs Kosalka.
The respondent seeks to avoid its obligations under Section 170 DB by arguing that the applicant was guilty of serious misconduct . Given my finding that the termination took place before the scuffle, the scuffle cannot be the basis of such an allegation. The respondent also argues that the refusal to work on the special project constituted wilful disobedience of a lawful and reasonable command which amounted to serious misconduct. I do not agree on the basis I have already discussed, and I find that the respondent failed in its obligation as an employer to act reasonably and make proper enquiries, which obligation is acknowledged by the respondent in its evidence as to its usual disciplinary procedures.
I also find that the respondent is in breach of Section 170 DC in that it failed to make proper enquiries and give the applicant an adequate opportunity to explain his point of view.
The respondent raised during the hearing an assertion that these proceedings had been settled at the Conciliation stage by payment of two weeks’ wages to the applicant, following a settlement negotiated with a Union representative for the applicant, in his absence. It is not necessary for me to canvass the detail of what occurred. It is enough to say that there is no evidence before me that there was a meeting of minds as to the settlement. The proceedings were not discontinued, and there is no evidence of any attempt to make the applicant discontinue after the cheque for the two weeks’ pay was sent to him.
The applicant’s evidence is that his purpose in having this second job was to establish himself financially by saving a deposit for a home. There is no evidence to suggest that his employment would not have continued indefinitely, as had he not been dismissed the scuffle would not have occurred. He has not found another second job, and seeks reinstatement. The respondent has the capacity to employ him and my observation of Mr Grassia is such that I have every confidence that he would ensure that any order of the Court is complied with. Equally my observation of the applicant is that he is a person who gives his best to his employer and will respond well to the opportunity to resume his employment. I therefore consider that in all the circumstances of the case it is appropriate to make an order that the respondent reinstate the applicant, and to preserve the continuity of the employment.
The orders I make are therefore :
That the respondent reinstate the applicant by appointing him to another position on terms and conditions no less favourable than those on which he was employed on 25 July 1995
That the respondent do all things necessary to maintain the continuity of the applicant’s employment
That the respondent pay to the applicant the remuneration lost because of the termination, less the two weeks’ pay received by the applicant after the conciliation conference in these proceedings.
I certify that this and the preceding 6 pages are a true copy of my Reasons for Judgment
Judicial Registrar Linkenbagh
Date: 15 March 1996
The Applicant was not represented by a Solicitor or Counsel
Solicitor for the Respondent: Mr John Wilson of Crossin Barker Gosling
Date of Hearing: 13 February 1996
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION - VALID REASON - MISCONDUCT - EMPLOYER TO ACT REASONABLY - REINSTATEMENT
Industrial Relations Act 1988, S 170 DB DC DE EA
Jones v. Dunkel 1959 101 CLR 298
JAMIE GILES V CERCAL HOLDINGS PTY LIMITED (A.C.N. 008 652 953) trading as WESTON CLEANING SERVICES
No. AI 1243 of 1995
CORAM: LINKENBAGH JR
PLACE: CANBERRA
DATE: 15 MARCH 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY AI 1243 of 1995
JAMIE GILES
Applicant
CERCAL HOLDINGS PTY.LIMITED (A.C.N. 008 652 953)
trading as WESTON CLEANING SERVICES
Respondent
Coram: Judicial Registrar Linkenbagh
Place: Canberra
Date: 15 March 1996
MINUTE OF ORDERS
That the respondent reinstate the applicant by appointing him to another position on terms and conditions no less favourable than those on which he was employed on 25 July 1995
That the respondent do all things necessary to maintain the continuity of the applicant’s employment
That the respondent pay to the applicant the remuneration lost because of the termination, less the two weeks’ pay received by the applicant after the conciliation conference in these proceedings
Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
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