Joseph Spiteri and Monocure Pty Limited
[1995] IRCA 183
•31 March 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
No. NI 0653 of 1994
BETWEEN:
Joseph SPITERI
Applicant
AND:
MONOCURE PTY LIMITED
Respondent
Before: LOCKE JR
Place: SYDNEY
Hearing Date: 1 March 1995
Date Orders Made: 31 March 1995
REASONS FOR JUDGMENT
(Ex tempore - as revised from transcript)
In this matter the applicant contends that the termination of his employment by the respondent was unlawful and that it was not for a valid reason associated with the applicant’s capacity or conduct. Alternatively, it is alleged such termination was harsh, unjust and unreasonable. At the hearing the applicant appeared in person.
The applicant is 54 years of age and still seeking employment. He labours under a triple disability so far as the employment market is concerned - age, a vulnerable spine and the fact he was dismissed.
The respondent alleges that the applicant was terminated for valid reasons related to his capacity and conduct and his termination was not harsh, unjust or unreasonable.
For seven years until 27th July 1994 the applicant had been employed by the respondent at premises at 32 Raglan Road, Auburn. He took over his job from a woman and his duties included purchasing, dispatch, running the factory (though not factory manager) and ensuring all orders were carried out. He alleges the position was not a manual one, although he did a lot of manual work. The percentage break-up of manual and clerical duties could not be readily ascertained as it depended on what work at the establishment was required to be done at a particular time.
Dispatching was done on a daily basis. Prior to the bringing in of computers, all cards were done by hand. This required the applicant to do it all on a calculator which took 15 - 20 minutes a time.
Further, two weeks of every month required a lot of clerical work, because raw materials had to be ordered for the beginning of the month. The applicant stated:
“That needed me to sit down in the office and at my phone quite a bit and do a lot of ordering.”
Mr Andrew Farensky, the respondent’s quality control manager since 1994 to 1 June that year swore an affidavit in the proceedings and he also gave oral evidence at the hearing. In paragraph 1 of his affidavit this witness deposed that on 1 June 1994 he was promoted to operations manager. At this point in time that applicant was overseas and Mr Farensky assumed the clerical portion of his duties.
Prior to the applicant’s departure on holidays it would appear Mr Farensky had a good working relation with the applicant as well as a great deal of daily contact in the workplace. He was in a position to observe the applicant’s activities and regarded him as a hard worker. Mr Alan Anderson, the respondent’s Marketing Director since 1983, was less laudatory of the applicant’s performance. When asked by his solicitor, Mr Hassett, was Mr Spiteri a hard worker, he paused before answering, pursed his lips and responded “loyal”. Then again, he acknowledged later that Joe, (meaning the applicant), certainly had his heart in it before.
Mr Anderson gave evidence he was not at the Auburn premises all the time and goes there two or three times per week. Indeed, he did not see the applicant after his return from the United State of America on 11 July 1994 until he terminated the applicant’s employment on 27 July 1994, a period of sixteen days.
Mr Farensky was asked by the solicitor for the respondent the following question:
“In your observation during 1994, how much time did Mr Spiteri spend doing manual tasks and how much time did he spend doing clerical tasks?”
The witness responded:
“It was - it varied from day to day but basically - usually it was 50/50, sometimes 70/30, it depended - it depended on the workload we have.”
It related to the activity of the day it would seem. While Mr Farensky’s evidence was not on all fours with that given by the applicant in this regard they were unanimous in that “it depended”. Regard must be paid to the fact that Mr Spiteri would be in a better position to give precise evidence as to what duties he performed both in 1994 and the six years prior to this person taking up his employment with the respondent.
Reverting back to the duties performed by the applicant in the course of his employment with the respondent, it is pertinent to relate that in addition to the three tasks already enumerated the applicant also mixed batches which involved constant handling and repetitive heavy lifting. This was of his own violation, he says, and was not included in the list of duties assigned to him at the point of commencement of his working life at Monocure Pty Limited.
The Marketing Director’s evidence on this aspect was that when the applicant first came he did most of the manual work in the factory and as the company grew, he got an offsider, then, (incredibly), he took upon himself to do the ordering and other duties which were required to run the factory.
That would not seem to constitute an exhaustible list of what Mr Spiteri did in aid of his employer: Mr Jackson, who was previously employed at a firm called Colourpac, a customer of the respondent company, gave evidence that during his time at Colourpac, the applicant demonstrated the ink manufacturing process. He gave this evidence:
“Joe came over to help us with the manufacture. He was manufacturing the goods for us at Colourpac because we were having trouble with the actual manufacture at the time. So Joe was demonstrating how to manufacture them correctly. He came over on a few occasions but initially I think it was for two days then that would’ve been around 1989/1990.”
Just from that evidence highlighted so far it can be inferred the applicant was competent, hardworking, will-motivated employee, but it does not end there.
Whilst working with another company the applicant injured his back, a fact he disclosed to the respondent when he took up employment with the respondent company. It would appear that there was a resolution of any pain and the injury was asymptomatic until July 1992 when he aggravated that injury when “removing a drum from the scales”. The pain he said remained with him after this accident but he continued doing jobs he has always done around the factory subject to some qualifications as “he wanted to get things done”.
Of his own volition or with the consent of the management, a bit of both says the evidence , things changed and he began to take things more easily. He put it this way:
“If my backs says, “Joe, you’re in pain , go and sit down” then that’s what I did . I went and sat down and if it eased off a bit I’d go and do some other job or whatever the case may be. I started doing other things that suited my back.”
Jack Mikita, a bodybuilder gave him a lot of help with the heavy stuff. Before Mr Mikita commenced work he was assisted by John Humphrey plus a variety of other employees who worked on the floor. Being a small company, everybody “pitched in” and did the work as required.
Subsequent upon this injury sustained in July 1992, Mr Spiteri spent some time performing light duties, consulted his local medial practitioner who prescribed tablets and referred him to physiotherapy which treatment he took for three months. The workers compensation insurer met his medical expenses.
In September 1993, the applicant again sustained a work related injury. On this occasion to his knee and again, an aggravation of his pre-existing back condition. His local doctor gave him a certificate for light duties but this was not for long he said in the evidence. Yet another incident occurred in July 1994 shortly after he returned from his vacation on 11 July 1994. This is the way applicant described how this injury was sustained:
“I hurt my back again packing from a vessel into a five kilo container - lifting the container.”
Again he sought treatment from Dr Viren, his local medical officer who put him off work for five days and certified him for light duties from 25 July 1994 until 1 August 1994 with review on that date. This certificate became annexure “A” to the affidavit of one Tim Jackson deposed on 13 September 1994 and which formed part of the evidence in the proceedings. Dr Viren’s certificate specifically prohibits the performance of certain tasks.
This evidence or the evidence of this certificate becomes very important later on when Mr Anderson, the managing director of the company said he did not know that this certificate existed when he sacked the respondent although it was quite obvious that Mr Jackson knew about it. He was also present at the termination of the applicant’s employment by Mr Anderson. The certificate is an annexure to Mr Jackson’s affidavit.
Allegations were made in the evidence particularly the affidavit material that on this occasion the applicant went on workers compensation as a quid pro quo for certain of his duties being stripped from him when he returned from his sojourn abroad. His response to this was:
“It was my doctor’s request not mine”.
The applicant responded when asked what the doctor had said on the point:
“Well, he told me to give my back a rest and go back and see him on Monday which I did. He asked me how my back was and I said well I’m still in pain. He said do you think you’ll be able to do light duties? I said, well, yes I’ve been doing them for quite a while now. He said in that case I will specify what you may and may not do and send you back to work. I said, well you know its up to you.”
Doctor Viren has no doubt the applicant was genuine. The evidence tends to suggest that there can be no doubt that he was suffering and continued to suffer the sequelae of an aggravation of a previous injury.
Evidence fell from two of the three respondent witnesses, Messrs Jackson and Farensky, that the applicant made comments which had a sinister connotation about the applicant going on workers compensation. He denies this and such denial is accepted. One might expect the applicant would make mention of workers compensation in the circumstance of his accident and it can be put no higher.
During the hearing of the case on 1 March 1995 Mr Hassett on behalf of the respondent put to the applicant in cross-examination the following:
“Was there work that Monocure could have found for you in the light of these restrictions, according to you?”
Responding the applicant said:
“Well, I suppose I could have been some help, yes. I could have done purchasing, I could have done. I don’t know, a hand in dispatch: getting the paperwork ready. I could have done invoicing. There are quite a few things I could have done where it would not require me to just sit all day, that I could move around and that I could do things in my own way. I’m not a cripple. I never stated I was a cripple in any way, shape or form.... I can use my hands. I can use my legs. I can do quite of few things”
He went on to state that he could also drive a fork lift with some limitation. This evidence is most important in the light of what occurred on 27 July 1994 the day of the termination of employment.
Evidence was given by three witnesses for the respondent of acts and omissions which allegedly constituted grounds for the applicant’s dismissal. The workers compensation component has already been covered. Others are as follows and I deal with them seriatim.
(a) Applicant’s attitude to Mr Farensky being appointed to perform the clerical side of his work duties.
(b) The clearing of his office by the applicant.
(c) Taking seven weeks holiday.
(d) The asportation / throwing away of records.
(e) Lack of interest in training Mr Jack Mikita’s successor.
(f) Alleged intention to move to Wollongong sooner rather than later.
(g) Attitude to job both before and after the visit to his son in the United States of America.
(h) Denigrating the Company.
(a) The applicant’s attitude to Mr Farensky being appointed to perform the clerical side of the applicant’s duties.
When the applicant left for overseas in May 1994 Mr Farensky was assigned to perform his duties. Mr Jackson was to assist him.
During the seven week period the applicant was away it was found that Mr Farensky could “relatively easily” manager the clerical side of the applicant’s work activities. Mr Jackson described the situation thus:
“We discovered that having Mr Farensky do the clerical work created efficiencies and better fitted with his job than it did with the plaintiff’s particularly given his computer skills. In addition Mr Mikita was leaving the defendant’s employment in July 1994 and had to be replaced with a new man. It was decided that upon the plaintiff’s return the clerical work would stay with Mr Farensky and the plaintiff would teach Mr Mikita’s replacement the job. This change did not involve any new duties for the plaintiff, just greater emphasis on production supervision as opposed to doing accounts and clerical work.”
On his return to the respondent company on 11 July 1994 the applicant said he was called into Mr Kevin Jarrett’s office and was told by that person “that Jack Mikita was leaving. He put his notice in and that it was decided that Andre Farensky will take over my duties and I will take over Jack Mikita’s duties on the floor.”
According to the plaintiff nothing was said that his future duties would involve greater emphasis on production and supervision as Mr Jackson alleges.
Evidence was given by the respondent’s witnesses that the applicant upon being informed of the new arrangements subsequently appeared to be “resentful” and “unhappy” without focusing on detail of how that was so.
It was acknowledged by the applicant that he became heated by receipt of the news. He said he was more than unhappy. He continued:
“I did get stirred up. I wasn’t even given the decency to be asked: I can handle the position. Myself being there for seven years. It didn’t mean I couldn’t handle the job that was on offer. I was very cranky. I was handling the computer that was there and getting from it whatever information that was necessary.”
That be as it may, the applicant was not cross-examined on this point as to whether or not his “heatedness”, “unhappiness” or “resentfulness” and any other emotions he described effected his work performance. The only evidence touching this aspect is deposed by Mr Farensky in paragraph 6 of his affidavit. He swore:
“During the period 11 July to Tuesday, 14 July 1994 the defendant carried out his normal manual duties. “
This evidence supports an inference that the applicant performed appropriately.
Subsequently Mr Farensky deposes that upon the applicant’s return from his certified period off work on 26 July the applicant took it easy, as well he might, he had been injured. It must be remembered that there is uncontroverted evidence that there were no orders to prepare that day and the applicant was unable to give Mr Mikita’s successor a proper induction. This is uncontroverted evidence. It is difficult to base any finding on this evidence in the absence of anything to point to the fact that the applicant’s chagrin affected his work performance. His evidence as to the genuineness of his injury being accepted.
More importantly there is no evidence the applicant was warned or counselled about his attitude on that occasion or was it nominated that his job was in jeopardy.
(b) Clearing of his office by the applicant.
Again it is quite difficult to ascertain the relevance of this evidence as to why the applicant’s employment was terminated.
Clearly it would seem that if the applicant was no longer performing his clerical duties his need for an office, space and equipment would be superfluous to say the least.
No inference can be drawn form this fact and circumstances that the applicant intended to leave the respondent’s employ. The evidence is to the contrary. He did not wish to resign, as he said, on 27th July when he was asked to do so.
Mr Tim Jackson gave evidence the applicant did not need to clear his desk. The purpose of his evidence on this point is fairly obscure.
On the other hand, according to the applicant, Mr Kevin Jarrett told him on 11 July 1994 that “it is no longer my office.” That is why he removed his belongings from the room he had previously occupied.
It is not known if Mr Kevin Jarrett is still in the respondent’s employ. He was not called to give evidence. His absence was not explained and the only inference can be drawn from his non appearance is that he could not have assisted the respondent’s case. The authority for this proposition is Jones v Dunkel and Another (1959) 101 CLR at 298. Thus the applicant’s evidence on this circumstance is accepted.
(c) Taking of seven weeks holiday.
In May 1994 the applicant requested seven weeks leave to repair to the United States. He took five weeks accumulated leave to which he was entitled and two weeks without pay. He sought and was granted permission to do so by Kevin Jarrett who was then his superior. It would appear this was an extraordinary and isolated occurrence and the reason for going was described by the applicant as follows:
“My son was in Seattle, Washington. My son was pregnant. They asked us can we go there to the birth of their child and we agreed that we would. Now, we had no idea when that birth was going to take place and as it turned out we were there for four weeks before she gave birth.”
There is no evidence to support a finding that Mr Jarrett objected to the seven weeks as proposed by the applicant nor did it seem, did Mr Jackson. It was he who took the proposal to the directors for approval. The only complaints came ex post facto when the respondent commenced to construct a case against the applicant in support of the resolution to terminate his employment. Then, and only then it was thought to be too long. Mr Anderson, in his evidence said he was “shocked” when he learned of the eight weeks, (in fact, it was only seven)
If the applicant’s proposition was so preposterous so as to shock Mr Anderson it is remarkable that everybody was so agreeable at the time of the request. It is just as remarkable the applicant was not admonished about making plans in the future to be away from the workplace for a similar duration.
There is no evidence at all that any warning of this nature took place. In the circumstances I find nothing turns on this particular aspect and no finding is warranted.
(d) The asportation / throwing away of records
One of the grievances against the applicant was he allegedly threw away a number of cards “including sales representative cards and cards which held information of raw materials and where to buy them.”
Mr Jackson described these cards as being created by the applicant, he knew the details by heart. He went on to say:
“After the defendant left, it was a difficult and a time consuming task to rebuild this data base”.
This witness deposed in his affidavit sworn 13 September 1994 that he saw the cards on the applicant’s desk on 11 July and they were gone on the 12th. He gave evidence at the hearing that Mr Farensky told him the applicant had thrown them away. Although this latter person, that is Mr Farensky deposed in his affidavit that he had seen the applicant throw the cards away., when questioned whilst giving evidence at the hearing it emerged he did not in fact observe the applicant throwing the cards away but merely concluded this was the fact by their absence.
It is very difficult given these two inconsistent statements to give much credit to what Mr Farensky says on this particular point. Despite the alleged value and importance of these cards, between 12 July and 27 July 1994 the applicant received no queries as to their possible whereabouts and he was not cautioned for destroying or removing the cards nor was he told that his job was in jeopardy because of their absence.
The applicant denies throwing the cards away and he is unshaken in his evidence in this regard.
In the light of the fact that Mr Farensky gave two different versions as to what he saw and what he did not see and that Mr Jackson’s evidence was based on what he was told by that gentleman, in the absence of any other evidence the applicant’s denial that he threw them away must be accepted. This view is fortified by the fact the Mr Spiteri also gave evidence which is unshaken that “quite a few times he found them on other people’s desk” which must support a reasonable hypotheses somebody else could have taken them away from the applicant’s office.
This incident on any view could not constitute a valid reason. The applicant was not warned about it, he was not spoken to about it nor was he counselled about it.
(e) Lack of interest in training Mr Jack Mikita’s successor
Mr Mikita it will be remembered was the person who performed the manual work in the factory. He resigned from the respondent company and his successor Mr Bob Blair commenced employment in his place one and a half days before the applicant was terminated.
It was alleged by Mr Jackson in paragraph 15 of his affidavit sworn 13 September 1994 the applicant showed little or no interest in training Mr Bob Balir, he would simply point to things rather than show Mr Blair how to do them.
This was refuted by the applicant who said:
“I gave him what I could which was I showed him the operations of the forklift in a safe manner. I showed him the operations, how we operate the different chemicals and what we do with them. We couldn’t make any products because we had no orders that day so all I could do was explain to him.”
He continued:
“The morning of the next day we did make a particular product which I got him to do by my experience. That is the way you learn by doing something.”
One must be satisfied that the applicant did the best he could to instruct Mr Blair in the duties expected of him in the one and a half days available to him. Documentary evidence tendered at the hearing supports the proposition that there were indeed no orders for the short period in question.
If Mr Jackson merely saw the applicant pointing to things it must be inferred this was during the “dry run” the applicant adverted to in his evidence which was being conducted by him to give Mr Blair practical experience.
Again, I find nothing turns on this evidence. It can only be regarded as being raised in order to bolster the respondent’s case. It does not. On no view could this incident form part of a pattern of behaviour which justified the applicant’s dismissal. Again, there was no warning. He was not told his job was in jeopardy.
(f) Alleged intention to move to Wollongong sooner rather than later
It was difficult to comprehend the probative value of the evidence of the purchase of the applicant of a block of land in Wollongong. A possible explanation might be that it formed part of fact and circumstances of the negative attitude the applicant exhibited towards his job noticed by Mr Jackson in the early part of 1994 and that he appeared to be contemplating early retirement.
It is also difficult to give much weight to this argument in light of the evidence given by Mr Farensky that during this period he had contact with the applicant on a daily basis and he seemed to be a hard worker.
It is common ground that the applicant did indeed purchase a block of land at this location. He looked at brochures and spoke about retrenchment packages, did sell his home, in which he continued to reside, to his son who held the property as an investment. However, the applicant gave evidence these matters were not considered by him because he wished to leave the respondent’s employ in the immediate future or at all prior to the statutory retiring age. I accept what the applicant says and find that he was “day dreaming” as to what might occur on a later date.
When asked:
“Were you intending to move down there?”
He replied:
“Eventually, yes, I mean I had an idea - I was hoping that one day I’ll move down there. I never stated that you know, I seen this block of land that I fell in love with and the only way that I can have it is by doing what I did which was selling my son my home, stay living there in it which I still do and maybe one day live down there.”
Watching and listening to the applicant in the witness box his evidence on this point had the ring of truth about it. Therefore, I find as a fact Mr Jackson was merely speculating as to the applicant’s motives in this regard by investigating the matter as he is required to under the Act he could have easily arrived at the truth. He did not bother to do that. There is no evidence to suggest he ever asked the applicant what his intentions were. On the evidence the purchase of the said land could not found a fact and circumstances constituting a valid reason.
(g) Attitude to job both before and after the visit to his son in the United States of America
The applicant denies his attitude to the job change in 1994. At least until his departure overseas Mr Farensky agrees with this, thus the preponderance of evidence is the applicant was a hard worker at least until May 1994 when he went on his holidays and returned on 11 July 1994.
It was upon returning that he learned of his change of duties and he did have a view on this. However, there is no evidence to suggest that the notification of this change of duties affected his work performance. Clearly in the 15 days leading up to the termination of his employment the applicant’s ability to perform his duty was hindered by the aggravation of his back injury, previously mentioned.
Again, this evidence led on behalf of the respondent, was yet another example of attempting to gild the lily and bolster its case. No warning was given to the applicant about the standard of his work and certainly he was not told that his employment would be in jeopardy if he did not improve.
(h) Denigrating the Company
.Mr Tim Jackson deposing in paragraph 6 of his affidavit said as follows:
“I recall an occasion in May 1994 overhearing the plaintiff speaking to a sales representative, Norm Braybrook, from Stewart Plastics who was visiting the defendant.”
The applicant allegedly said words to the following affect:
“Monocure’s not much of a company to work for. You can’t trust them. They don’t pay their bills.”
Mr Jackson alleged he conveyed these comments to the directors and they were discussed. However, the applicant was never admonished about this or any other incident. Alan Lionel Neil Anderson, a director of the respondent company, gave evidence in the proceedings but nothing fell from him on this point as to whether he knew of this particular alleged incident or not. For such a breach of fealty it is indeed hard to believe the applicant was not reprimanded. Mr Anderson did not admit to discussing the matter with Mr Jackson in his evidence.
Denying that he made such a remark the applicant said this:
“Monocure was being sued by Stewart Plastics for not paying their bill. Why would I bother to tell him anything that he already knew.”
There is a certain logic in those foregoing remarks. I accept the plaintiff’s evidence on this especially as no cross-examination took place on this aspect nor was there any evidence called to disprove the fact the respondent was being sued by Stewart Plastics. I have to accept that it was. Mr Jackson allegedly heard the words uttered when he was sitting in an office next door and he said he could hear the conversation. He made no note of the alleged conversation. It cannot be ruled out that there may have been some reference in the conversation between the applicant and Mr Bradbrook about the respondent’s liquidity problems. It need not have been perjorative. However, the alleged conversation, as Mr Jackson would have it, is a gross overstatement of the position in light of the evidence.
Termination.
It is common ground between the parties that the respondent terminated the applicant’s employment on 27 July 1994. On the morning of that day the applicant was called to a meeting with Mr Jackson and Mr Anderson. There was a divergence of evidence of what was said at that meeting but one thing is clear, that is a letter dated 26 July 1994 was handed to the applicant. This became exhibit “A” in the proceedings and reads as follows:
“Dear Joe
This is to inform you that your services are no longer required by the company.
Prior to your return from overseas we had decided that one person could handle our current production requirements.
With negligible sales of ink products, it was proved over a two month period, that manufacture and blending was achievable by a single person.
Since your return you have not indicated that you are capable of fulfilling this role.
As you are aware, the company is not in a healthy position cash wise and cannot afford the luxury of putting you on light duties.
Thank you for all you have contributed to the company whilst you have been with us.
Your retrenchment cheque is enclosed and I would be glad to give you a reference if you require it.
Yours sincerely
Alan Anderson
Director.”
It is perfectly obvious that the management of the respondent company had already made up their minds to terminate the applicant when they met with the applicant on that fatal morning. The meeting was a sham.
Evidence has already been mentioned that the applicant was certified by his local medical officer as being unfit for certain duties until 1 August 1994 when the situation was to be reviewed. Mr Anderson’s evidence on this point was:
“I didn’t realise he’d had it renewed. I know he had one a week before. I was looking at the long term.”
He went on to say:
“I was quite happy you know to stay on till whenever that runs out. That is why I offered him a retrenchment packet rather than say: You’re gone, now.
Might it be said that there even if Mr Anderson did not know the medical certificate had been renewed it was indubitable that Mr Tim Jackson did, it being an annexure to his affidavit. That certificate was within the company’s power and control. There is an inconsistency in this particular evidence of Mr Anderson which cannot quite be resolved. He says he did not know about a further certificate on this occasion yet he goes on to say that is why he offered him a retrenchment package.
It may be mentioned that despite the terms of exhibit “A” the alleged retrenchment package was also a sham. The applicant’s termination package, so called, included the following:
a. Five weeks in lieu of notice as required under section 170DB(2) of the Industrial Relations Act;
b. One week’s wages; and
c. Statutory long service leave entitlements.
Furthermore, Mr Anderson thinking of the long-term, he said in evidence, he did not know if the applicant was permanently incapacitated and did not even both to ask.
In my mind that would have been a pertinent and relevant inquiry to make at the time. Mr Anderson did not make an adequate investigation as to the circumstances of the applicant’s injury and the applicant was not given an adequate opportunity to explain his situation. Further entrenchment, in my view, that come what may, the applicant was to be disposed of that day whether it was by way of sacking, resignation or so-called retrenchment. The applicant says he was given the opportunity to resign and refused to do so he was then terminated. The respondent’s witnesses say to the contrary. No matter how one views the evidence given by Messrs Anderson and Jackson, in the light of exhibit A, the inference is irresistible that the applicant should have no choice in the matter. He had not been warned that his job was in jeopardy neither orally or in writing. In fact there is no evidence to suggest the applicant even had constructive notice of his dismissal. Further he was not given an opportunity to defend himself.
In light of all the circumstances I accept the evidence given by the applicant as to the facts and circumstances surrounding him leaving the company. It is clear he was dismissed. Exhibit “A” gave him no option and its contents are consistent with what the applicant says occurred. It was pre-dated,
WAS THE WAY IN WHICH THE APPLICANT’S EMPLOYMENT TERMINATED A BREACH OF SECTION 170DC OF THE ACT?
In my opinion the answer to the above questions is yes.
Section 170DC of the Act is as follows:
‘An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless
(a) the employee has been given the opportunity to defend himself or herself against the allegations made.
(b) the employer could not reasonably be expected to give the employee that opportunity.
In Nicholson -v- Heaven and Earth Gallery Pty Limited (1994) 126 ALR at 223 at 243, , Wilcox CJ said, in respect of 170DC:
“The paragraph does not require any particular formalities. But this does not mean that it is unimportant or capable of perfunctory satisfaction. Section 170DC carries into Australian Labour Law a fundamental component of 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 another to that person’s disadvantage and for a reason personal to him or her without first affording the affected person an opportunity to present a case. The principle is well established in public and administrative law. It is accepted in the international Labor Law when article 7 was inserted into the Termination of Employment Convention. Section 170DC is directly modelled on article 7. The principle is, I believe, well understood in the community represents part of what Australia calls a fair go.”
Continued the Chief Justice:
“In the context of Section 170DC it is not to be treated lightly. The employee is to be given an opportunity to defend himself or herself against the allegations made. That is the particular allegations of misconduct, and poor performance that have put the employee’s job at risk.”
When an employer is contemplating dismissing an employee for specific reasons it is insufficient that the employer merely puts those reasons to the employee unless the employer also makes it clear that the employee’s job is at risk.
This is, in my opinion, implicit in the working of 170DC. The phrase “allegations made” in section 170DC must be read to mean, the allegations made in respect of which the employees employment may be terminated. This is because of the obligation on the employer to put the allegations to the employee and give him or her the opportunity to respond. This obligation is imposed on the employer only in the context of possible termination of the employees employment.
This is what I understand the Chief Justice to have meant in Nicolson when he said:
“The employee is to be given an opportunity to defend himself or herself against the allegations made. That is the particular allegations of misconduct or poor performance that are putting the employees job at risk.”
I am reinforced in this opinion by section 170CA(1) of the Act together with schedule 11 of the Act which is the recommendation 166 of the International Labour Organisation which is referred to in that section.
Section 170CA(1) of the Act is as follows:
“The object of this division is to give effect or give further effect, to:
(a) The termination of employment convention; and
(b) The termination of employment recommendation 1982 which the general conference of International Labour Organisation adopted on 22 June 1982 and is also known as recommendation 166 and a copy of the English text which is set out in schedule 11.
The title of the recommendation is:
“Recommendation Concerning Termination of Employment at the Initiative of the Employer”.
Under the heading “Standards of General Application”, there is a subheading “Procedure Prior to or at the Time of Termination”. Paragraph 8 under that subheading is as follows:
“The employment of a worker should not be terminated for unsatisfactory performance unless the employer has given the employee appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvements has elapsed.”
One of the objects of division 3 of part 6A of the Act is to “give effect or to give further effect to” the recommendation in determining the meaning of section 170DC and the obligations imposed on employers as a result if that section.
The Act does not in terms impose an obligation on employers to give employees a “written warning” in terms of paragraph 8 of the recommendation. I accept that. If it were the intention of the Parliament to impose generally such a requirement then the Act would specifically say so, and does not. Thus, such an obligation is not part of the domestic law of Australia.
Nonetheless, in view of the fact that one of the objects of the Act is to give effect to the recommendation and in view of the fact the recommendation is incorporated into the Act in the sense that it is a Schedule to the Act the absence of a written warning (where it could be practically and appropriately given) is a factor to be taken into account on the question of whether or not an employer has breached the provisions of 170DC of the Act and indeed section 170DE.
To put it another way, I do not regard the recommendation as necessarily binding but I do take into account as providing a significant guide to the court on the question of the proper procedures for an employer to follow.
Furthermore, there are sound policy reasons why a written warning stating that the employees job is at risk and setting out the reasons why that it is the case (where it can be again, appropriately and practically given) should be given. It is in the interests of both parties and the potential for misleading is minimised - a written warning has that effect.
Related to that, my opinion, is this, if an employees work performance is not up the required standard for whatever reason then an employer should inform the employee as precisely as possible exactly what the problems are. The best way to do it is in writing. If there are required standards to which the employee must perform, then those standards as a matter of fairness, would be best set out in writing.
Nonetheless, lest I should be misunderstood, each case has to be examined in the light of its own facts. The absence of such a written warning is not necessarily determinative of the question and lack of same in all circumstances would not be a breach of the Act. It is simply a factor to be taken into account in the way I have already set out above.
In this case there was no reason why the respondent, (in particular, Messrs Jackson and Anderson) could not have given a written warning to the applicant that his job was in jeopardy.
But Messrs Jackson and Anderson did not even give an oral warning to the applicant that his job was in jeopardy. Even if there is some criticism by the employer it does not follow from that the employee must know his job is in jeopardy. I am reminded of the words that fell from the Chief Justice in Nicholson:
“It must be precise. It must not be a mere exhortation.”
As the applicant was not made aware by the respondent that his job was in jeopardy I find that the termination of the applicant’s employment by the respondent was in breach of 170DC of the Act.
WAS THE DECISION TO TERMINATE THE APPLICANT’S EMPLOYMENT A BREACH OF SECTION 170DE OF THE ACT?
Section 170DE reads as follows:
“An employer must not terminate an employee’s employment unless there is a valid reason or valid reasons connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.”
170DE(2) [Termination harsh, unjust or unreasonable if reasons not valid]
“A reason is not valid if having regard to the employee’s capacity and conduct and those operational requirements, if termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid.”
In my opinion, (putting aside for the moment the question of whether the termination of the applicant was harsh, unjust or unreasonable in the terms of 170DE(2), the respondent has not established that there was a valid reason for the termination of the applicant’s employment.
The reason for the applicant’s dismissal would appear to be those acts of omissions to which I have already referred. These on analysis do not appear to be the principle reasons and when focussed upon do not amount on the evidence to conduct unbecoming. There is no basis for some of them whilst others are merely trivial. In this respect, heed must be given to the legal maxim de minimis non curat lex.
It would appear (although this is not certain from the evidence) that the reason for the applicant’s dismissal was that he informed Messrs Jackson and Anderson on 27 April 1994 that at that point in time he would not be able to perform manual work. Nothing about the future was discussed and neither gentleman took cognisance of the fact that the applicant’s disabilities and ability to preform his work was to be reviewed on 1 August 1994 - 5 days later.
A resolution of the applicants symptoms flowing from his most recent accident could well have resolved significantly during that time. It is a well known medical fact that rest and withdrawal from demanding activity often leads to resolution of symptoms of the kind being experienced by the applicant.
On 27 July 1994, Mr Spiteri was still under doctor’s orders as to what duties he could and could not perform. It would have been foolhardy of him to divert from those medically recommended duties prior to be review.
Mr Anderson gave evidence he was unaware of the medical certificate stating the applicant would be reviewed in five days time. Nor does he make any investigation as to any prognosis in relation to the applicant’s injury. No, he took a premature step. He thought of the future he said without considering whether or not this long term, hard working, loyal employee would recover from his work related injuries so as to be able to take his place as required in the respondent’s work establishment.
Having regard to the evidence as a whole, one cannot base a finding that the reorganisation which occurred in May, June, July 1994 was reason for validly terminating the applicant’s employment with the respondent. It was made perfectly clear to him when he returned from the United States he was still regarded as a member of the team albeit with emphasis on refined duties.
This being so, it must be found as a fact that the respondent did not have a valid reason for terminating the applicant’s employment with it and is thus in breach of section 170DE(1) of the Industrial Relations Act.
WAS THE TERMINATION OF THE APPLICANT’S EMPLOYMENT HARSH, UNJUST OR UNREASONABLE IN THE TERMS OF SECTION 170DE(2) OF THE ACT?
For the reasons set out above, I have found that the termination of the applicant’s employment was in breach of section 170DC of the Act. This was in part because the applicant was not made aware by the respondents his job was in jeopardy, despite the respondent being critical of his performance.
For the same reason the termination of the applicant’s employment was unjust because he was denied procedural fairness in accord with 170DC.
In Byrne and Frew -v- Australian Airlines (1994) 52 IR 10, Gray J in considering the use of the term harsh, unjust and unreasonable in an Industrial Award said at page 63:
“So far as the procedural aspects of a clause such as clause 11A have been seen as confined to the need for an employer to make a proper investigation of the facts and to consult with the employee about those facts and their possible consequences..... In my view, that analysis has been in adequate. The use of the word unjust in the clause is intended to import requirements of natural justice or procedural fairness into the process of terminating employment.”
His Honour continued at page 64:
“.....I am of the view that a clause such as 11A requires that an employer contemplating terminating the employment of an employee is obliged to afford procedural fairness to that employee. Not to do so would be unjust.”
The respondent did not consult with the applicant about the possible consequences of his alleged failure to perform. That is to say the possibility that his employment would be terminated. In my view, natural justice requires an employer to tell the employee that his job is in jeopardy.
For these reasons the applicant was denied natural justice and the termination of his employment was indeed unjust.
By not warning him, the respondent gave the applicant a false sense of security. The fact is on 27th July, the respondent had already determined the applicant’s working life at Monocure would cease. Yet he did not have a clue what the future held for him. This constituted unjustness and harshness.
The applicant was, in fact, dismissed on 27 July 1994. he had no idea what was happening. The termination came as a considerable shock to him. The shock was entirely understandable given that the fact the respondent never told him that his job was in jeopardy.
If the respondent had told the applicant his job was in jeopardy or alternatively giving him proper notice (I note here that he did receive pay in lieu of notice) it might have been possible for the applicant to commence search for alternative employment at an earlier time. This possibility was denied him because of the secret and summary way in which the respondent proceeded. Furthermore, the consequences to the applicant of the termination of his employment has been made worse by the way in which it was done. It must be more difficult in these circumstances to find suitable alternative employment because of the circumstances of his dismissal.
Thus, in all the circumstances, and particularly taking into account the fact that the witnesses for the respondent’s credit in all aspects of evidence has been called into question. I find that the respondent decided to terminate the employment of the applicant well before the meeting of 27 July 1994. The applicant was not told about this decision and the termination of the employment was harsh and unjust.
Should the applicant be reinstated?
In my opinion, it would be impracticable to order the applicant be reinstated.
While some of the applicant’s duties have been absorbed it would appear on balance and giving credence to what the applicant has said in his evidence, there still existed duties at this former work place which he could have performed. however this may require some rearrangement.
Another consideration is the obvious rupture in the relationship between the applicant and three gentlemen who gave evidence for the respondent is quite clear reinstatement of the applicant would impose strains on the small working environment provided by the respondent.
In the case of Samuel McGregor Nicholson and Heaven and Earth Gallery Pty Limited (1994) 126 ALR 223 Wilcox CJ made the following remarks at page 225:
“It is important to note that Parliament stopped short of requiring that for general compensation to be available reinstatement is impossible. The words impracticable requests and permits the court to take into account all the circumstances of the case relating to both employer and employee and to evaluate the practicality of reinstatement in a common sense way. If a reinstatement order is likely to impose unacceptable problems or embarrassment or seriously affect productivity or harmony within the employer’s business, it may be impracticable to order reinstatement notwithstanding that the job still remains available.”
In arriving at a decision on this aspect of the applicant’s claim what fell from the Chief Justice has been borne in mind and I will not be ordering reinstatement.
WHAT AMOUNT OF COMPENSATION, IF ANY SHOULD BE AWARDED T THE APPLICANT FOR THE UNLAWFUL TERMINATION OF HIS EMPLOYMENT
The applicant is 53 years of age. he has instituted proceedings in the New South Wales Compensation Court in relation to his injuries and disabilities. He waits the hearing of that matter. His chances of entering the labour market are slight, for three reasons.
His age,
His disability, and
The circumstances of his dismissal - it must be more difficult for him to find a suitable alternative employment because of those circumstances.
In assessing the amount of compensation I take into consideration that it is unlikely the applicant will find employment in the near future. Given that, the maximum amount of compensation would seem appropriate.
Thus, in all the circumstances I consider a figure of $15,499.00 is the appropriate amount to order by way of compensation. That sum is to be paid by the respondent to the applicant within 28 days of the date of this judgement.
Might I make it perfectly clear that if I had not been constrained by the provisions of the Industrial Relations Act section 170EE (3) I would have awarded a greater amount.
I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgement of Judicial Registrar Locke.
Associate: Caroline Sternberg
Date: 9 May 1995
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