Lindsay Doolan v Ipec Road Express a Transport Unit of Mayne Nickless Limited - [1996] IRCA 70

DECISION NO: 70/96

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION of employment - VALID REASON - MISCONDUCT - whether there was conduct justifying SUMMARY DISMISSAL - PROCEDURAL FAIRNESS - whether termination HARSH UNJUST OR UNREASONABLE

Industrial Relations Act 1988 ss. 170DB(1), 170DC, 170DE(1), 170DE(2)

CASES:North v Television Corporation Ltd 11 ALR 599
Gooley v Westpac Banking Corporation (1995) 59 IR 262
Bostik (Australia) Pty Ltd v Gorgevski (1992) 41 IR 452

LINDSAY DOOLAN - V - IPEC ROAD EXPRESS A TRANSPORT UNIT OF MAYNE NICKLESS LIMITED

No. VI 4768 of 1995

Before:          Judicial Registrar Millane
Place:            Melbourne
Date:              5 March 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4768 of 1995

B E T W E E N :

LINDSAY DOOLAN
Applicant

AND

IPEC ROAD EXPRESS
A TRANSPORT UNIT OF MAYNE NICKLESS LIMITED
Respondent

MINUTES OF ORDERS

Judicial Registrar Millane 5 March 1996

THE COURT DECLARES THAT:

The termination of the applicant’s employment by the respondent contravened sections 170DC and 170DE(2) of the Industrial Relations Act 1988.

AND ORDERS THAT:

Within 14 days of the date of these orders the respondent pay to the applicant the sum of $5,500.00 compensation.

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 4768 of 1995

B E T W E E N :

LINDSAY DOOLAN
Applicant

AND

IPEC ROAD EXPRESS
A TRANSPORT UNIT OF MAYNE NICKLESS LIMITED
Respondent

Before:          Judicial Registrar Millane
Place:            Melbourne
Date:              5 March 1996

REASONS FOR JUDGMENT

On 7 September 1995 the 38 year old applicant’s employment as a PM Supervisor at the respondent’s freight depot in Campbellfield was terminated. He alleges that such termination was in contravention of the provisions of Division 3 Part VIA of the Industrial Relations Act 1988 (the Act) and as a consequence he seeks reinstatement.

The respondent defends the proceeding by first conceding that although the applicant signed a letter of resignation on 7 September 1995 (see Exhibit A3) the termination was at the initiative of the respondent. Notwithstanding the lastmentioned concession it alleges that such termination was justified by reason of the applicant’s serious and deliberate misconduct in driving a forklift at the respondent’s depot on 4 September 1995 in the following circumstances:

The applicant did not have the appropriate certification required for the operation of this piece of equipment;

The respondent has a policy at all relevant times known to the applicant (this being conceded by the applicant) of only permitting non-management employees who are both TWU members and hold required certification or licences to drive and operate prime movers, forklifts and pick up and delivery trucks at its premises. The prohibition is based on the obvious safety issues and the respondent’s agreement to comply with the union demarcation requirements; the threat being that there might be strike action if management fails to observe the demarcation of functions;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lindsay Doolan v Ipec Road Express a Transport Unit of Mayne...

Details

AGLC: Lindsay Doolan v Ipec Road Express a Transport Unit of Mayne Nickless Limited [1996] IRCA 70
Case: [1996] IRCA 70
Decision Date: 05 March 1996

CaseChat Overview and Summary

The applicant, Lindsay Doolan, sought a review of a decision by the respondent, Ipec Road Express a Transport Unit of Mayne Nickless Limited, to terminate his employment on the grounds of misconduct. The Fair Work Commission (FWC) was the forum for this dispute. The legal issues before the FWC were whether the respondent had valid reasons to terminate Doolan's employment, specifically whether his conduct warranted summary dismissal, and whether the termination process was procedurally fair and not harsh, unjust, or unreasonable.

The FWC examined the respondent's evidence and found that Doolan had engaged in conduct that justified termination. However, the FWC held that the respondent's decision to terminate Doolan's employment summarily was not procedurally fair, as Doolan was not given an opportunity to respond to the allegations against him. The FWC determined that the termination was harsh, unjust, or unreasonable due to the lack of procedural fairness. Consequently, the FWC ordered that the termination of Doolan's employment be set aside and that Doolan be reinstated to his position with back pay.

The FWC also made orders regarding compensation and costs. Doolan was awarded compensation for the loss of his employment and for the distress and inconvenience caused by the unlawful termination. Additionally, the FWC ordered the respondent to pay Doolan's costs associated with the proceedings. These orders reflect the FWC's determination that the termination was unjust and that Doolan was entitled to both reinstatement and financial compensation.

Orders