Joseph Mark Robinson v Kingston Cabinet Makers

[1995] IRCA 281

C A T C H W O R D S

INDUSTRIAL LAW - Termination of employment - claim of unlawful termination - whether a valid reason for termination - whether termination was harsh, unjust or unreasonable.

INDUSTRIAL RELATIONS ACT 1988, S 170EA

JOSEPH MARK ROBINSON v KINGSTON CABINET MAKERS -
WI 673 of 1994

BEFORE:                 FLEMING JR
PLACE:  PERTH
DATE:  12 MAY 1995

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )         No. WI 94/0673

BETWEEN  JOHN MARK ROBINSON
            -      Applicant

AND  KINGSTON CABINET   MAKERS  -    Respondent

BEFORE:                 FLEMING JR

PLACE:  PERTH

DATE:  12 MAY 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

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

IN THE INDUSTRIAL RELATIONS        )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 94/0673

BETWEEN  JOHN MARK ROBINSON
  -             Applicant

AND  KINGSTON CABINET         
  MAKERS
  -         Respondent

BEFORE:                 FLEMING JR

PLACE:  PERTH

DATE:  12 MAY 1995

EX TEMPORE REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant was employed by the respondent as a machinist on 4 May 1994 and his employment was terminated on 13 December 1994.  His last day of employment was 19 December 1994. 

The applicant gave evidence that he was expected to work overtime on Saturday, 10 December 1994, as per an agreement with his employer.  The applicant, however, failed to attend work on the Saturday because of ill health.  He said he did not go to the doctor because he was not that ill.  His evidence was that he was "sick as a dog" from the Friday to Monday.  The applicant did not notify his employer that he would be absent from work on 10 December 1994. 

On Monday, 12 December 1994, the applicant again did not attend work nor did he notify his employer of his absence.  Instead his evidence was that he was ill and that he had an appointment to see the doctor.  He gave evidence that he went to work on that day by way of hitch-hiking but when he got to within 500 metres of work at approximately 6.30 am, he felt unwell and decided to return home by hitch-hiking.  The applicant's evidence was that he attempted to telephone the employer but that the employer's telephone was busy.  The applicant then telephoned for a medical appointment and also telephoned his friend Tony who was then to give him a lift to the doctor's surgery. 

The applicant gave evidence that the doctor's surgery was approximately 3 or 4 miles from his home, and he could not say which doctor he saw at this doctor's surgery.  He tendered the medical certificate dated 12 December 1994 which is exhibit 1.  It is unclear which doctor has signed the certificate.  It is also unclear what the diagnosis is, although it appears it may be “viral illness”.  The applicant said that when his friend Tony collected him, he drove him to a shopping centre about 20 miles away where he purchased some alcohol and some Quick Eze from the bottle shop.  He said he then went to the doctor who prescribed antibiotics and Mylanta. 

The court does not doubt the validity of the medical certificate.  However, the applicant's evidence of what occurred on the Monday morning is extraordinary in terms of his efforts to get to work and get back from work. 

Mrs Giglia, whose husband owns the respondent business, gave evidence that she had seen the applicant at the shopping centre and that they were so close that they were approximately two arm's lengths from each other and that they made eye contact but that nothing was said.  The applicant denied seeing Mrs Giglia at the shopping centre. 

When Mrs Giglia returned to the respondent's premises, her evidence is that she looked around for the applicant.  When he was not there she asked her husband the whereabouts of the Applicant.  Mr Giglia said he had not seen the Applicant. In her evidence, Mrs Giglia said she told her husband, Mr Giglia, that she had seen the applicant at the shopping centre. 

Mr Giglia gave evidence that on the evening of December 12, 1994 he had not decided to do anything about the applicant's absence, except to have him explain himself on the next day.  On the following day Mr Giglia gave evidence that he was very angry and asked the applicant, "What happened yesterday?"  The applicant attempted to hand Mr Giglia the medical certificate but Mr Giglia said he believed that the applicant was unreliable and dishonest and he refused to take the medical certificate.  The medical certificate was handed to Mrs Giglia later that day.  Mr Giglia said he believed that the applicant was dishonest because he said he was sick, but his wife had seen him at the shopping centre and if the applicant was sick he should have been at home.  There ensued what seems to have been a heated discussion wherein Mr Giglia said, "If you're not happy here, find other work". Mr Giglia gave the applicant one week's notice and the applicant worked out that notice period and his last day of employment was 19 December 1994.

The applicant has claimed unfair dismissal on the grounds that he was dismissed because he was ill.  This is denied by the respondent.  I accept the evidence of Mr Giglia that he dismissed the applicant because he was unreliable.  This is evidenced by exhibit C which is a letter from Mr Giglia to the applicant dated 19 December 1994 claiming that the applicant was dismissed for misconduct arising out of the applicant's irregular attendance at work.  Mr Giglia denied dismissing the applicant for ill health and I accept this evidence. 

The evidence before me is clear insofar as both the applicant and the respondent agree that there was a meeting on 5 November 1994 wherein overtime and the workload prior to the Christmas break was discussed.  The applicant was aware of the requirement to work overtime, and the need to work it prior to Christmas in order to get through the workload.  I accept the evidence of Mrs Giglia that in the 5 or 6 weeks between 5 November and 12 December the applicant was unreliable in working overtime on Saturdays.

Accordingly, I find that in terminating the employment of the applicant, the respondent had a valid reason. 

I turn now to consider whether or not the decision of the respondent to terminate the applicant constituted conduct which was harsh, unjust or unreasonable.  The applicant has not established that the termination of his employment was harsh, unjust or unreasonable.  Mr Giglia has given evidence that he extended to the applicant an opportunity to explain what had occurred on the Saturday and the Monday before he made up his mind to dismiss the applicant, but that he had lost faith in the applicant and on that basis could not continue the employment relationship.

The applicant gave evidence that he felt better after being sacked and he also gave evidence that he had asked the respondent to dismiss him earlier in the year in June.  Furthermore, he said that he would be in a better position in relation to payment from the Department of Social Security if he were dismissed rather than if he resigned.  I make no comment about that evidence.  On the applicant's evidence it would appear to the court that he considers himself in a better position financially by not working and by receiving payments from the Department of Social Security.  However, this has not been a factor in my reason for decision.

I find Mr Robinson was dismissed for his unreliability and I find that in dismissing him, the respondent has not dealt with the applicant harshly, unjustly and/or unreasonably.  Accordingly, I dismiss the application.

I certify that this and the preceding four pages are a true copy of reasons for judgment of Judicial Registrar Fleming.

Associate:
Date:

The Applicant appeared in person.

Representative for the Respondent:       Mr A Tomlinson
   Chamber of Commerce and Industry
  of Western Australia (Inc)

Date of Hearing:        12 May 1995

Date of Judgment:     12 May 1995