Karamitsios v Alan Beckwith Macbro Pty Ltd

[1996] IRCA 535

DECISION NO:535/96

C A T C H W O R D S

INDUSTRIAL LAW - termination of employment - termination for valid reason - inadequate performance - warnings given and adequate opportunity to respond

Industrial Relations Act 1988 ss.170DE(1), 170EA, 170EDA
Industrial Relations Regulations - Regulation *

CASES:

Selvachandran v Peteron Plastics Pty Limited (1995), 62 IR 371

Kenefick v Australian Submarine Corporation (No 1) (1995) 62 IR 107

Johns v Gunns Limited (1995) 60 IR 258

Nicholson v Heaven and Earth Gallery Pty Limited 1994, 1 IRCR 199

KARAMITSIOS -v- ALAN BECKWITH MACBRO PTY LTD

No. VI-5788 of 1995

Before:  Ryan JR
Place:  Melbourne
Date:  21 October 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-5788 of 1995

B E T W E E N :

VASILIOS KARAMITSIOS
Applicant

AND

ALAN BECKWITH MACBRO PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Ryan       21 October 1996

THE COURT ORDERS:

1. The application be dismissed.

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

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-5788 of 1995

B E T W E E N :

VASILIOS KARAMITSIOS
Applicant

AND

ALAN BECKWITH MACBRO PTY LTD
Respondent

Before:      Ryan JR
Place:       Melbourne
Date:         21 October 1996

REASONS FOR JUDGMENT
(Delivered Ex Tempore - Revised from Transcript)

The Applicant was employed as a foundry labourer on a shop cast machine.  He claims unlawful termination of employment and seeks compensation, including a component of compensation for the loss of pro-rata long service leave for nine years and nine months continuous employment at the Coburg Foundry of the Respondent.

The Respondent took over the business of the foundry in June 1995. Earlier the foundry was run by the Stanley Group and earlier again by Sidchrome.

The Applicant claims to have worked at the foundry off and on for over 20 years and for nine years and nine months continuously until termination in November 1995.  The Applicant claims that he was that he was not orally warned at any time for poor performance and was never given a first formal warning on 7 September 1995 or a second formal warning on 17 October 1995. He also claims that the written warning of 9 November 1995 was not accompanied by any oral advice that his employment was in jeopardy. He also asserts that he was never given any opportunity to respond to allegations of poor performance.

I have noted the evidence of the Applicant.  He was not easy to understand. I am satisfied that he has an adequate grasp of spoken English and that his son, and probably the shop steward, Mr Jeffrey Mark, explained the real purport of exhibit R1 to him.  Exhibit R1 is dated 8 November 1995, is addressed to the Applicant and reads as follows:

“This is to record that after numerous verbal warnings regarding your attitude to work practices, this written warning is to be placed on your file.  Continuation of your conduct may lead to termination of your employment.  Your conduct will be reviewed on November 14, 1995 to assess whether any change has occurred.  Terry Beckwith, Managing Director.”

The Applicant also, in my view, understood all warnings, formal or informal, given to him. I note the evidence of all four witnesses for the Respondent that after some of the warnings the performance of the Applicant improved, albeit only for short periods of time.

This is a straight contest of fact between four Respondent witnesses and the Applicant.  To prefer the evidence to the Applicant over that of Messrs Mark, Wilson, Beckwith and Firman, who all gave consistent and firm evidence, would be to draw a conclusion that those four men conspired to concoct a case against the Applicant and falsely claimed numerous informal oral warnings and two recorded formal warnings.  The final written warning of 9 November cannot be disputed.  I do not accept that the Respondent, through the managing director, the foundry manager, the Applicant's supervisor and a shop steward, has conspired against the Applicant.

The Applicant seems to claim that he stayed at his machine seven hours a day and had breaks of no longer than five minutes.  I do not accept this evidence.

The weight of the evidence is in favour of a termination for a valid reason.  The consistent evidence of the four Respondent witnesses, backed up by exhibits R1, R2 and R3, leads the court to prefer the evidence of those witnesses over the evidence of the Applicant.  Having heard the evidence of Mr Mark, moulder, and shop steward, Mr Wilson, supervisor, Mr Beckwith, managing director and Mr Firman, foundry manager, and having considered exhibit R1, a written warning of 9 November 1995, and exhibit R3, oral warnings recorded in the day book on 7 September 1995 and 17 October 1995, I am satisfied that the Applicant was terminated for valid reason and for a sound, defensible and well-founded reason as set out by Northrop J in Selvachandran v Peteron Plastics Pty Limited (1995), 62 IR 371 at 373.

I have also noted the comments of the Chief Justice in Kenefick v Australian Submarine Corporation (No 1) (1995) 62 IR 107 at 116. I have no doubt that there was a causal relationship between the termination and the reasons stated by the Respondent. I have no doubt that the termination was a logical response by the Respondent. I note in particular what the Chief Justice said about section 170DE(i) being designed to inhibit capricious terminations and not to put the court in the employer's managerial chair.

The Applicant's performance had been unsatisfactory for most of the time that he worked for the Respondent.

The Respondent discharged the onus under S170DE(1) and S170EDA(2) and did so as set out by Northrop J in Johns v Gunns Limited (1995) 60 IR 258 at 266 to 269. It would appear that the Applicant's performance was unsatisfactory over a long period prior to June 1995 and that that performance was possibly condoned by previous employers but that is neither here nor there.

I am satisfied that Messrs Beckwith, Firman and Wilson took action to warn the Applicant of his inadequate performance and that he was warned on several occasions by Mr Wilson and then more formally in writing on 8 November 1995 and that Mr Beckwith and Mr Firman present on that occasion.

The Respondent complied with section 170DC of the Act.  The Applicant had ample opportunity to respond to the allegations.  He knew his employment was in jeopardy.  He was not put in a position of a mere exhortation to improve.  He was given a fair go: Nicholson v Heaven and Earth Gallery Pty Limited 1994, 1 IRCR 199 at 209 and 210.

The result of these conclusions is inevitable.  The application of unlawful termination of employment and the claim for compensation is dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. The application be dismissed.

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

I certify that this and the preceding 3 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.

Associate:          
Dated:  8 November 1996

Solicitors for the Applicant:           Gregorys
Counsel for the Applicant:            Mr N Lontos

Solicitors for the Respondent:      Mackinnon Jacobs Norton
  & Irving Pty

Counsel for the Respondent:                 Mr S Stuckey

Date of hearing:  21 October 1996
Date of judgment:  21 October 1996