Jim Peter Mullany and Active Concrete (a Division of Hymix Industries Pty Limited

[1995] IRCA 6

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY  No. NI 747 of 1994

Between:  JIM PETER MULLANY

Applicant

And:ACTIVE CONCRETE
(A Division of  HYMIX INDUSTRIES PTY LIMITED)
Respondent

Before:   Judicial Registrar LOCKE

Place:  Sydney

Date of Hearing:                   19 January 1994

_____________________________________________________

Mr James Peter Mullany makes application pursuant to s.170 EA of the Industrial Relations Act 1988 claiming:

a)An order declaring the termination of the employer’s employment of the employee contravenes Div. 3 of Part VIA of the Act.

b)     An order requiring the respondent to pay compensation to the employee.

c)      An order requiring the respondent to re-instate the employee in employment; and

d)Such other order as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the respondent had not been terminated.

FINDINGS

1. I find the respondent failed to give the applicant the prescribed period of notice as required under Section 170DB of the Industrial Relations Act.

1. The applicant was not given the opportunity to defend himself on 25 July 1994 by reason of the fact he was not given the opportunity to take advice as to the legal effect of a letter headed “Formal Warning” which was handed to him that day.

1. The termination of the applicant’ s employment was not valid and in the circumstances harsh, unjust and unreasonable.

ORDERS

I order that:

The respondent pay the applicant the sum of $6,273.00 as required by Section 170DB(2) of the Industrial Relations Act within 21 days.

REASONS FOR JUDGMENT(EX-TEMPORE)

The applicant commenced work with the respondent on 10th October 1992 as a truck driver delivering concrete in an agitator truck to various sites.  He was employed under the Transport Industry - Mixed Enterprises Interim (State) Award.  His employment with the respondent company was terminated on 25th July 1994.

It is necessary to note that the applicant had never previously worked in the ready mixed concrete industry and it was part of his duties to maintain slump quality control from the time the truck left the depot (Camellia, Clyde) until it reached his destination at the building site.  For this he was paid an additional  amount as provided for by the award of $13.80 per week.

Upon the commencement of his employment the applicant received some training and tuition in all aspects of the job he was expected to perform including the all important aspect of slump control.  This training consisted of some time with the driver of an agitator truck as an offsider and about an hour’s lecture or induction briefing course held on 20th October 1992.

This was conducted by a Mr Lynch (T.130) who deposed to the fact that it usually took him this period of time to go through the document of some 60 pages called “Driver Training Policies”.  Mr Lynch had no independent recollection of how long he spent on slump control on this occasion, just as his evidence as to how long the entire course took was based more on supposition rather than his memory of what took place on that particular date.

A Mr Belcher gave evidence that the training he received at Ready-Mixed Concrete, by whom he was initially employed in this industry was far more extensive.  As nothing really turns on this aspect of the evidence as to why the applicant’s employment was terminated, it is unnecessary to traverse it in the detail as it fell.  In passing, it is pertinent to note the only additional training provided to the applicant was a lecture given by a Mr Jeffrey Lehto, the Quality Assurance Manager of the respondent.  A quality assurance system was introduced by the respondent in May 1994 and on 3rd May of that year a quality assurance induction was given by Mr Lehto to the applicant which lasted about thirty minutes.  This procedure was conducted from a Concrete Cartage Manual, a document of some 50 pages and which included (T.160) at least twelve substantive sections of procedure, all of which had to be covered.  Mr Lehto (T.161) did not recall the induction training session with the applicant, other that he asked some questions.  His recollection also included that he spent five to ten minutes on slump control which included answering questions.

Prior to this, in June 1993, also in an effort to improve the quality control of the slump procedure, the respondent introduced a system of defective slump notices (DSN) which were issued to drivers whose load of concrete arrived at the site and which were declared defective by the tester.  It is interesting to note these loads were not always rejected as was the case of the applicant’s load on 21 July 1994.  It was this load that led to the issue of a DSN, central to these proceedings.

All witnesses for the respondent gave evidence that slump control was a relatively easy procedure.  It  must be noted that these gentlemen were on the management side of the respondent’s business and did not have to cope with the vagaries and delivery which included the weather and traffic.  No evidence was called from other agitator drivers who could have given pertinent evidence on these aspects from their experience.  The only inference to be drawn from this failure is that those other eight or nine drivers at the Camellia Plant could not have assisted the respondent’ s case. (Jones v Dunkel and Anor 1959 101 CLR 298).

On the other hand, the evidence of both the applicant and his witness Mr Belcher was that slumping required skill and responsibility.  Mr Belcher had spent some years in the ready mixed concrete industry as an agitator driver.  So experienced was he considered by the respondent that he did not have to undertake any training upon the commencement of his employment.  This was the case, he said, despite that fact the respondent’s mix was different from that used at his other place of employment and it took him “a good couple of months” to get used to it (T.116).  It would appear from his evidence that he got used to the different mixture merely by trial and error and not by instruction.  Thus this experienced man on the job did not find slump control a relatively simple procedure.

Indeed between July 1993 and October 1993 he received three DSNs’, all involving the difficult Thompson Hill’s site.  On two occasions the load was accepted whilst the other was re-used all without loss to the respondent. 

On the other hand, the less experienced applicant from October 1993 to July 1994, a period of nine months, received five defective slump notices with only one loss to the employer - two being accepted - that of 21 July 1994, and 14 June 1994, and the remaining two loads being re-used elsewhere.

In this period the Thomson’s Corner site was a frequent destination.  The applicant’s evidence was (corroborated by Mr Belcher), that the task of arriving on site with the appropriate slump was rendered particularly difficult by traffic.  It would have indeed assisted had the respondent called other agitator drivers so the court could have heard their views on this particular matter.

It would seem that despite the receipt of the five notices and other isolated incidents, of what was complained of by the respondent as unbecoming behaviour, the combination of these matters was not regarded as serious enough to ground a dismissal.  Indeed I find as a fact from the evidence these particular incidences would not warrant a dismissal.  It is thought that they were brought up in evidence to strengthen the respondent’s case; they do not assist it and indeed are not germaine to it.

What this case is all about is the applicant’s failure to sign a letter presented to him on 25 July 1994 (and dated that same day).  Historically what led to the request by Mr Lynch to the applicant that he sign the letter was as follows: -

On 21 July 1994, the applicant delivered a load of concrete to the Thompson’s Corner site.  Upon discharge it was found to be defective, because the applicant alleges the unusually high temperature recorded on that winter’s day.  This evidence is uncontroverted.  It would appear the load was not rejected due to a false particular being supplied on the site by the tester.

At T.22, the applicant’s evidence is that on the next day (Friday), that is the 22 July 1994, Mr Brett Lovett called him aside and said:

“Yesterday’s load was defective and here’s a slump notice” - which I refused.

The reason given by the applicant for refusing the notice was that the load was put into the job and the company received its payment for the load and everything else associated with it.

So was the applicant’s evidence in chief on this point.  Under cross-examination (T 84) the applicant conceded the interchange between Mr Lovett and himself on that day was very heated.  Under cross-examination, (T.84) the applicant conceded the interchange between Mr Lovett and himself on that day was very heated:

“It was an argument during which a lot of things were said,” was the evidence he gave.

It was put to him by counsel for the respondent, or the representative of the respondent, that he said:

“I don’t care a fuck about slumps.  I don’t get paid enough to put up with these fucking slump notices”

To this the applicant responded that that could have indeed been said.  This was the purport of Mr Lovett’s evidence on this point in respect of which he made a contemporaneous note some minutes after the incident.

I am satisfied that the applicant did voice such opinions but they were done in the heat of the moment and amounted to mere “puffing”.  He did so because he was chagrined by the receipt of the slump notice in the circumstances of a defect being caused by extraneous circumstances and also by the fact the load was not rejected.  Thus I find that Mr Lovett’s treatment of the applicant was somewhat punitive and the applicant’s reaction was to say the least, justifiable.

No evidence was led that Mr Lovett took time to investigate the applicant’s version to ascertain the truth or otherwise of the matter.  There, of course, is a duty cast upon him so to do as a matter of substantive fairness as decided in Byrne v Frew 1994 52 IR 10.

If the applicant had lost his temper and said things he did not mean was not exhibited by his behaviour when he resumed work on 26 July 1994, the Monday following the incident.

There is no evidence other than he attended to his duties in an appropriate and responsible way, having delivered five or six loads that day

Despite this being so, after the applicant had completed his shift on that Monday at about 2.30 pm, he was called into an isolated part of a building in the depot by Mr Lovett.  It is quite clear that the applicant’s employment was to be terminated if he did not comply with the request Mr Lovett was to put upon him.

In examination in chief (T.23), the applicant gave this version of what occurred in that upstairs room.  He was shown a letter, which was written by the respondent’s Sydney Divisional Manager, Mr Mario Pannunicio, with whom Mr Lovett discussed the events of the previous Friday.  This document bore the title of “Formal Warning”  and is annexure “F” to Mr Pannunicio’s affidavit deposed on 9 December 1994.

No reading of that document would warrant it being construed as a formal warning.  The letter reads as follows:

25th July 1994

FORMAL WARNING

Mr Jim Mullany

It has come to the attention of  management that you have consistently had difficulty with the slumping of concrete.

Management has discussed this matter with you on several occasions following particular instances.

What is of concern to ourselves is your apparent lack of feeling for accountability, based on your claims that you believe you are paid sufficiently for this responsibility.  We regard the responsibility of slump control as a fundamental part of this job and accordingly we pay the appropriate ‘slump allowance; of which you are quite aware.

We view this situation as serious and consequently require your confirmation below that you accept the responsibility for slump control.

Should you not accept this requirement of the job your employment with us must be terminated.

Should you accept the responsibility you are herein formally warned that your control of slump must be improved.

Regards

Brett Lovett
PLANT MANAGER

I herein accept the responsibility of slump control for which I am currently being paid.

Signed ........ ........ ........ ........ ........ ........ ...... (Jim Mullany)

It would appear that there is no real dispute as to what occurred at the meeting.  In effect it was as set out in Mr Lovett’s affidavit at pages five and six.

Mr Lovett gave the applicant the letter previously set out, watched him read it and upon observing him to have completed this process asked him if he understood it, to which the applicant replied

“Does it mean that next time I get issued with a defective slump notice I get sacked?”

So it is quite apparent that the applicant did not understand the letter or in the circumstances of his lack of education (he left school prior to the School Certificate) could be expected to.  Having been asked the question by the applicant, Mr Lovett then replied:

“No” Mr Lovett replied “It does not say that.  All I want you to do for me is by signing the letter you’re accepting your responsibility and I can expect a change in attitude”.

From that it was quite clear that the applicant did not understand what the letter was all about.  Mr Lovetts’ response, I regard as no elucidation of the meaning of the document but it is clear from the applicant’s evidence (T.23) that his understanding was not assisted at all by the reply.  He said

“things just didn’t seem to click the way this letter was worded”.

There is other evidence which confirms this was so.

This should have been perfectly clear to Mr Lovett that the applicant was having difficulty coming to terms with the letter, yet he made no attempt to properly explain the affect and meaning of the word, “responsibility”, as set out therein.  It was obvious the applicant was having difficulty with comprehension.  Was it the responsibility that fell on the applicant since the commencement of his employment or did it mean a greater responsibility at law for any loss the defendant might incur by the delivery of a defective load by the applicant?  It was clear the applicant could not answer this question and he was not given or permitted any assistance.

Because of the fact termination was a probable result of Mr Lovett’s request I find at that point the applicant had been denied both substantive and procedural fairness.  However, the matter does not end there:

“I want to take it to my lawyer” - said the applicant.

Because of the probable consequences of the applicant signing this document (real or imagined), this was a reasonable request in the circumstance and one which was refused. It is indubitable the applicant held the belief, if he signed the letter it would be against his interest. This refusal amounted, in my opinion, to conduct which was harsh, unjust and unreasonable (from my point of view unconscionable) within the meaning of section 170DE. Nothing would be lost so far as the respondent is concerned, to concur with what I regard as a reasonable request. The only inference one might draw from this refusal was the respondent’s determination to bring the applicant to heel or terminate which indeed occurred with only forty hours notice in breach of section 170BD(2) of the Industrial Relations Act.

At this point, the applicant said (T.24)

“I was just trying to be fair.  I thought well if they give me a couple of hours to get legal advice I will be able to give them an answer whether I’ d sign it or not.  I just felt if I signed it in one week, two weeks, three months, or a year they could turn around and say you signed it, good-bye.

“They wanted me to be responsible for it...yes it was something way out of the parameters as us being an employee/driver sort of thing”.

Looking at the letter, the applicant was of the view that he was being asked to assume legal responsibility for the load.  That he would be personally liable for any loss occasioned and he just wanted to seek clarification of that point from an independent person as to whether this was the case or not.

Rightly or wrongly, might I reiterate, it is quite apparent that the applicant believed that signing the letter would place an obligation upon him outside the terms and conditions of employment.

The actions of the respondent’s agent, Mr Lovett in terminating the applicant under such circumstances was not valid and indeed harsh, unjust and unreasonable within the meaning of section 170DE.  He was denied both substantive and procedural fairness.

CREDIT
It is not always easy to resolve a conflict of evidence in any proceeding.  In the evidence given in the four day  hearing, the main areas of conflict arose in matters peripheral to the issues.  If I were asked to make a finding as to credit on the evidence given by a person in relation to such subjects as adequate training, the effect of traffic conditions and weather on the concrete en route to the site I prefer that evidence given by Mr Belcher and the applicant as men on the job doing the day-to-day work of carrying concrete, to that of the managerial witnesses who gave evidence on the respondent’s behalf.  I found more consistency in these witnesses’ evidence, as well as a propensity to make concessions.  This was not so obvious in the those giving evidence for the respondent.

RE-INSTATEMENT

As to the applicant’s reinstatement, I have given deep thought to reinstating the applicant and on balance I think it inappropriate in this case.  It my opinion it would be impracticable.  An incident had occurred between the applicant and a member of senior staff which I do not think, with all the good will in the world, could be mended.  Camellia is a small depot with nine or ten drivers and it would not be feasible for a resumption of employment by the applicant without some ill feeling.  I put some weight in this regard on the evidence given by Mr Lovett as to remaining drivers’ adverse attitudes expressed to him after the applicant had attended the Christmas function held by the staff at Rosehill in 1994 and to which he invited himself.

This evidence remains unshaken and uncontroverted.  Apart from this particular incident, from all the evidence that fell over the four days of the hearing, I draw an inference this would not be in either parties’ best interest for this to occur.  Reinstatement is required, if it can be done,  i.e. that is if the employer is still employing or is able to employ someone to perform the same or similar tasks, then, of course, reinstatement may be practical.  Evidence was given on the respondent’s behalf, which was uncontroverted, that the small depot known as Camellia, is fully staffed rendering it impractical from this angle to be able to make an order which would put the applicant in his former position.

APPLICANT LICENSE

I wish to make mention of some evidence which was given by one of the respondent’s witnesses which raised a suggestion that the applicant deliberately put himself in a position to be terminated because he was to lose his license on the points system on Wednesday 28 July 1994 (T.100).

There is no evidence to support a finding that the applicant forced his termination as suggested.  One might only speculate on this point and this the law enjoins us not to do this.  The evidence given by the applicant was that by virtue of accumulation of points he was due to lose his unrestricted 5A licence on 28 July 1994.  However, it was open to him to sit a test at the Road Transit Authority in order to obtain a provisional licence which was sufficient for him to be able to drive in the course of his employment with the respondent.

On Saturday 22 July 1994 he took the test and failed and was again booked to take another test, on the very afternoon he was terminated, at 4.15 pm.  So distraught and despairing was he of his situation, caused by the respondent’s conduct, he did not take that test and subsequently served the disqualification period.  Had he not been terminated he might well have been granted a  provisional licence.  One might infer that the evidence supported a proposition that he, at that time, was a very experienced driver who drove many kilometres in the course of his employment and that he could have passed the test.

Because of the periods he spent on the road and the time limits placed upon him by his employment, this made him a candidate for a greater receipt of breaches than would befall a normal motorist, so I make no comment about him, as a driver who earned his living on the roads, losing or about to lose his license on the points system.  I just do not think it is relevant to these proceedings.  Three months on, with that period away from driving, the result might be different, he might have to take the test one or two times, which indeed was the case, but he did obtain his unrestricted 5B licence and is again pursuing his employment using that license.

The applicant’ s good faith in this regard is supported to some extent that in June 1994, after he had unsuccessfully exhausted legal avenues to retain his unrestricted license, he asked permission of the respondent to have three months unpaid leave.  This was refused, so it can be seen that the applicant did all in his power to ensure his employment would not be put in jeopardy.  At the time of the hearing the applicant had a clean 5B licence, unrestricted, and to his credit was working with his truck again, which he had been doing since he was twenty one years old.  He has also been operating earth moving equipment.

EMPLOYERS’ OBLIGATIONS IMPOSED UNDER INDUSTRIAL RELATIONS ACT

I wish to refer briefly to the obligations imposed on employers under the Industrial Relations Act. It is perfectly clear there must be a valid reason for dismissal related to the applicants conduct or performance. “He must have an opportunity to defend himself” - section 170DC - against allegations which carries into Australian labour law the concept known to lawyers as “natural justice” or more recently “procedural fairness”.

The relevant principle is that a person should not exercise legal power over the other to that person’s advantage, without first affording that affected person an opportunity to present a case : Nicholson v Heaven and Earth Gallery Pty Ltd.  It is unreported at this stage and the number given is 68/94 (NI 127/94).

The court in the above case went on to hold that:

“Section 170DC is not satisfied by a mere exhortation to improve...”

For section 170DC to be satisfied it would be necessary for the respondents to determine if the applicant’s conduct and performance were such to justify dismissal and put those matters squarely to him under such circumstances where he had a fair opportunity to defend himself.

Instantly, of course, performance was not an issue which would have immediately led to the applicant’s dismissal, but conduct was, insomuch that the applicant would not sign the document headed “Formal Warning” without assistance of his solicitor. I find Mr Mullany’s dismissal infringed section 170DC. Section 170DB(2) has also been breached in that an inappropriate period of notice was given. Section 170DD(2) was not taken into consideration, in that written notice of termination was not given to the applicant, setting out the reasons for his termination. Thus the respondent has been remiss so far as the Act has been concerned in relation to substantive factors. He has also denied the applicant procedural fairness which is embodied in Clauses 9, 10, 11, 12 and 13(i) of Recommendation No. 166. The clauses relevant instantly are as follows:

9.A workers should be entitled to be assisted by another person when defending himself, in accordance with Article 7 of the Termination of Employment Convention, 1982 against allegations regarding his conduct or performance liable to result in the termination of this employment.  This right may be specified by the methods of implementation referred to in Paragraph 1 of this Recommendation.

11.The employer may consult worker’s representatives before a final decision is taken on individual cased of termination of employment.

12.The employer should notify a worker in writing of a decision to terminate his employment.

This was not done, of course.

13 (i)A worker who has been notified of termination of employment or whose employment has been terminated should be entitled to receive, on request, a written statement from his employer of the reason or reasons for the termination.

This did not occur in this case.  Those provisions of Division 3 of the Act when read with the Recommendation accompanying the Convention, therefore requires a strict procedural fairness to be applied before terminating an employee.”

I find that this was not done in relation to the applicant’s termination.

Those are the reasons for my decision, gentlemen.

____________________________________

BEFORE:  Judicial Registrar LOCKE

PLACE:  Sydney

HEARING DATE:               19 January 1995

I certify that this and the proceeding nine (9) pages are a true copy of the Reasons for Judgment (Ex-Tempore) of Judicial Registrar Locke.

Associate:  Jeynelle Moffat

______________

Date signed:                 27 January 1995