Lindsay Doolan v Ipec Road Express a Transport Unit of Mayne Nickless Limited
[1996] IRCA 70
•05 March 1996
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;
The applicant had been warned once on or about 25 May 1995 for driving a prime mover at the yard and this was an oral warning. He was further warned in writing (see Exhibit R1) and given an explicit threat of termination on or about 26 June 1995 for driving a forklift on 19 June 1995; and
On 4 September 1995 his action in driving a forklift was a deliberate breach of the lastmentioned policy which could have but, as it turned out, did not have serious consequences for the respondent.
BACKGROUND
The applicant is married with a young family, mortgage and a wife who is also an employee of the respondent for some eight years.
The applicant’s employment with the respondent commenced in November 1985 and at the date of termination he was some 39.47 days (see Exhibit A5) short of accruing his long service leave entitlements. In the years spent with the respondent the applicant worked variously as a dock hand and driver holding a Class 5 licence for some twenty years. It was his uncontested evidence that at least in the early years of his employment he drove prime movers and trailers and pick up and delivery trucks as well as forklifts. Despite his lack of formal accreditation to drive, for instance, a forklift he alleged he did this from time to time with the knowledge of the company at least up until 1990.
Whatever took place in earlier years it was not contested by the applicant that the policy prohibiting the driving of forklifts without the appropriate certification was one which the company had and was well known to him in 1995. He did attempt to argue that the policy insofar as it required only drivers with appropriate certification to drive was more honoured in its breach than being observed and enforced by the respondent. The evidence on the whole did not support such a finding. Indeed, the respondent’s concerns about occupational health and safety issues, insurance, union backlash and the warnings given to the applicant are consistent with both the existence of the policy and a real desire to implement it.
The applicant moved up through the ranks to leading hand, eventually being appointed PM Supervisor on 10 December 1992. This position involved him in supervising the loading and unloading of freight on the afternoon shift and, from approximately January 1995 he was in charge of what was referred to as the heavy section where heavy freight items are lifted on and off trucks by forklift. This required him to supervise casual labour, including the forklift drivers.
On taking on his supervisory duties the applicant ceased to be a member of the TWU either because of union or company opposition to management membership.
In considering the merits of the application there was one significant personal factor and that was that the applicant suffered a hip injury some years earlier; that injury being further exacerbated in about 1994 by a fall at work leading to six weeks’ absence from work and a continuing disability inasmuch as the applicant cannot perform duties including climbing stairs and lifting. Because of its location and the supervisory duties the applicant was and did perform the job of PM Supervisor without difficulty. However, since the termination of his employment his disability and outstanding Workcover status have militated against him obtaining and keeping gainful employment. This is a matter that is clearly relevant to whether the termination was a harsh one when considered in the context of all the matters known to the respondent at the date of termination.
THE BREACHES OF COMPANY POLICY AND THE WARNINGS GIVEN
On 25 May 1995 it was agreed that the applicant drove a prime mover at the employer’s premises and such action was witnessed by the then State Operations Manager, Noel Edward Fritz (Fritz) who was attending a management meeting and saw the applicant drive past. He diarised (see Exhibit R2) both the sighting and the fact that he and Patrick Charles Galea (Galea), the respondent’s PM Manager and the applicant’s immediate superior, on the same day warned the applicant not to drive equipment in the yard.
Fritz ceased his employment with the respondent in about July 1995 and is now employed by one of the respondent’s competitors. He recalls waiting to the end of the management meeting he was attending and collecting Galea who was not at the meeting but who went with him to speak to the applicant about the incident. It was agreed by all the witnesses involved in the subsequent exchange that the applicant had told Fritz that he had reversed the prime mover to move it out of the way of the cleaners whose job it was to sweep and clean the yard. It was further agreed that the oral warning amounted to telling the applicant not to drive equipment as well as telling him that Fritz did not care what the applicant’s reason was.
One of the difficulties this case presented was that the applicant presented as a likeable, hard-working individual whose misplaced humour and somewhat casual approach to compliance with company policy on his use of equipment in the yard were significant factors in the loss of his employment.
He told the Court that he was aware of the management meeting and the fact that those attending the meeting could observe his unauthorised action in driving the prime mover, however, he thought at the time management would be pleased that he was attempting to help clean the yard and as he put it instead he received “a kick in the bum”.
I am satisfied on hearing the applicant’s evidence and observing him in the witness box that on each of the occasions it was alleged that he actively breached the company policy he did so knowingly, taking the view that if management were reasonable they would forgive the transgressions once they understood his well-intentioned motivation for flouting the procedure. Because he had many years experience using a forklift without any formal accreditation to do so he saw no potential harm in his actions and further because the union had never until then taken any action on the demarcation issue it was not likely to do so just because he drove a piece of equipment a few feet or a few metres.
On 19 June 1995 a second incident occurred in which the applicant was seen to move a forklift. Fritz told the Court that he had not observed the incident but fielded a complaint from one of the TWU delegates telling him that the applicant had been seen driving the equipment and if nothing was done about it there would be strike in the yard. No evidence was called from the delegate to substantiate any of the hearsay allegations made. Nevertheless, the applicant in his evidence conceded that he had in fact driven a forklift on the occasion alleged and had been approached by the AM Operations Manager and told to get off the forklift “you mad so and so”. He alleges he told this person that he had moved pallets left outside the shed with the forklift so that no one else would get into trouble for leaving them there.
Fritz had no real knowledge of the circumstances of the abovementioned incident other than the complaint he acted on. He called in Galea as the applicant’s immediate superior and instructed him to give to the applicant a written warning prepared by Fritz (see Exhibit R1). The notice was a standard form document in which the respondent could type detail and such notice contained the following warning:
“Because of the serious nature of this matter and because of previous warnings in this area, it will be necessary for you to closely abide by the Company’s instruction if you are to retain your position. Your (sic) are warned:
Under no circumstances are you to drive or move any equipment (Prime Movers, Forklifts, P.U.D. Vehicles) within the Campbellfield Depot.
We believe you are capable of following this directive, but if you fail to do so, you may leave us no alternative but to terminate your services.”
Galea was not aware of the circumstances of the incident and as instructed approached the applicant with the warning note recommending that he read it and requesting his signature on it.
In giving his evidence the applicant recounted his exchange with Galea with some obvious amusement. He was with another employee when approached by Galea and at first refused to read the warning note. He conceded that he understood and knew what the warning note was about but also knew that Galea was not able to answer his questions on where, when or at what time the incident occurred. In other words, the applicant engaged in a little sport with his superior requiring Galea to return to Fritz to obtain answers to his questions on what was alleged against the applicant when all was known to the applicant in any event. Ultimately he refused to sign the document because he felt the respondent should have known and have been able to say what happened.
What emerges from the abovementioned exchange is that although neither Fritz nor Galea were in a position to provide any real detail of the incident the applicant was, in any event, under no illusions as to the extent of the allegation made. Had he chosen to he could have defended himself against that allegation by offering the explanation for it to either or both Fritz and Galea.
It was further evident from the applicant’s evidence that he understood on receipt of the written notice of warning that by his actions he had placed his employment in jeopardy. When Fritz was cross-examined none of the matters the applicant alleged occurred in relation to the incident on 19 June 1995 were put to Fritz at all. This is not a case where the employee was precluded from offering an explanation when he was formally warned; rather it is a case where he elected to remain silent. In any event it is unlikely that the circumstances the applicant referred to as explaining and excusing his conduct would have been sufficient to remove or reduce the severity of the warning given because such circumstances hardly amount to anything more than evidence of his good intentions whilst deliberately ignoring both the policy prohibiting him from driving the forklift and the additional policy prohibiting management from performing the function of union members in handling freight or the pallets.
The applicant told the Court that once he got the warning notice he determined not to breach the policy again. Notwithstanding this resolution on Monday 4 September 1995 he drove a forklift into the overnight garage area allegedly to protect its cloth seat from wet weather. The significance of this action according to the applicant lies in the fact there could have been trouble between the A.M. and P.M. shifts in the highly unionised worksite because the next shift would not be prepared to use a forklift with a wet seat.
Realistically speaking none of the incidences alleged were ones where the applicant was presented with some pressing urgency precluding any attempt to arrange for an authorised employee to use each item of equipment or to shift the pallets. The respondent’s State Operations Manager since July 1995, Adrian Trevor Pitcher (Pitcher), told the Court that with 250 to 300 employees to manage on the site safety was a major issue; the only exception to the prohibitions being one where immediate safety was a consideration.
For security reasons the respondent has video surveillance of its yard. This was known to the applicant who agreed that he drove the forklift past the surveillance camera realising that his activity would probably be recorded. Because, in his words, no one was around he believed that “most bosses would understand if I told them” and, “men being men, they’d understand”, he moved the forklift some ten to twelve feet.
THE TERMINATION
Pitcher told the Court that he was shown the video surveillance cassette and on 7 September 1995 he asked Galea to arrange a meeting with the applicant in the State Manager’s Office. Pitcher’s evidence indicated that because he had identified the applicant in the video and had viewed the applicant’s file containing the diary note and warning notice, as well as having had a short discussion with Fritz about the matter, he determined that it was appropriate to dismiss the applicant. This determination was related to both the safety and industrial risk the applicant’s repeated breaches posed. It is clear from his evidence that the determination to dismiss was made well before he interviewed the applicant on 7 September 1995 and it was made irrespective of any explanation that may have been offered. In other words, the purpose of the meeting was to terminate the applicant not to expand the respondent’s investigations of the incident or to provide a forum for any explanation. At the time of the interview Pitcher was well aware of the applicant’s physical handicap and whilst he denied any knowledge of the actual time accrued towards the applicant’s long service leave entitlement, he did concede that he knew the applicant had been with the respondent for nearly ten years and understood that he may have had some accrued long service leave entitlement.
The interview was conducted in Galea’s presence. It was Pitcher’s evidence, generally corroborated by Galea, that in the half hour or so the meeting took place Pitcher told the applicant that he had been observed by the video camera driving the forklift and that he had been formally warned previously not to do this. He asked the applicant for an explanation and was given it following which he then asked why the respondent should not dismiss the applicant. The applicant was apparently non-responsive to the last enquiry and Pitcher went on to inform him that he had a choice. The first option was to resign with one month’s pay in lieu of notice. This offer appears to have also involved the payment of $2,000 for out-placement assistance. The alternative was summary dismissal with no payment in lieu of notice and presumably no out-placement assistance.
Eventually the applicant capitulated and signed the prepared written resignation (see Exhibit A3) and left his employment.
The applicant paints a somewhat more dramatic picture of the last meeting. He alleges that when he was called to interview he understood that he was probably going to in his words, “get a kick in the bum for moving the forklift”. However, he was surprised to find that after the preliminary discussion of the event and the earlier warnings he was presented with two documents; one being details of a payment of $5,000 if he resigned and the other detailing a payment of $1,500 for dismissal, such sum presumably representing his entitlements to the date of the meeting. He alleges that Pitcher told him that he was not interested in excuses because the applicant would never drive a forklift again in the yard.
In response to the applicant’s questioning Pitcher told the applicant that if he resigned he would receive $5,000 otherwise he would be sacked and would receive $1,500 because the respondent did not need to pay him any monies in lieu of notice.
The applicant asked for time to think as well as have a cigarette and speak to his wife. Pitcher gave him fifteen minutes to consider the choice facing him but declined to let the applicant leave the room or consult with his wife, telling him that it was his job and his decision to make. Pitcher’s explanation to the Court for this behaviour was that he wanted the matter resolved and his intention was to have the applicant make a decision. Because he was authorised to dismiss the applicant and it was in his view open to him to dismiss the applicant without notice he saw his behaviour in offering the lesser option of resignation as compassionate behaviour.
VALID REASON - SECTION 170DE(1) AND AN OPPORTUNITY TO DEFEND HIMSELF - SECTION 170DC
On the evidence I am satisfied that Pitcher’s actions were, in all the circumstances, oppressive and completely unnecessary. There is no plausible reason for denying the applicant the opportunity to consult with at least his wife and give proper consideration to all the options open to him.
Essentially the evidence as to the occurrence of the breaches of company policies is uncontested. The evidence supports a finding that there was a valid reason for termination; namely the applicant’s misconduct in deliberately and repeatedly breaching the respondent’s policies. I have described the applicant’s actions as misconduct because those actions were intentional ones and a serious breach of his obligations under his contract of service; such that they would ordinarily entitle the employer to terminate his employment (see generally North v Television Corporation Ltd 11 ALR 599). However in the circumstances described I am not satisfied that his actions were of a kind that it would have been unreasonable to require the respondent to continue the applicant’s employment during the minimum notice period of four weeks provided for in s.170DB(1) of the Act. In other words, this was not a case justifying summary dismissal as was asserted by Pitcher during his final interview of the applicant.
It follows from the abovementioned matters that there was no basis for deciding and acting on that decision to terminate without having heard the applicant’s explanation or having given him an opportunity to defend himself. Pitcher’s oppressive behaviour during the last interview precluded any reasonable opportunity for the applicant to defend his actions as well as offer any reasons for not terminating his employment; for instance, considering alternative disciplinary measures.
HARSH, UNJUST OR UNREASONABLE - SECTION 170DE(2)
One explanation for Pitcher’s oppressive attitude towards the applicant may be that on 29 August 1995 the applicant was interviewed by Pitcher with a view to moving him to another supervisory shift; such change being part of the respondent’s multi-skilling program. The applicant contends that at a subsequent meeting on 1 September 1995 he told Pitcher that he was unable to change to the alternate shift because of his physical incapacity. It appears that the dock duties involved in the alternative supervisory shift would have required regular use of stairs by the applicant. During this meeting the applicant alleges that Pitcher was at first insistent that the applicant move shifts, threatening to terminate his employment if he did not. When the applicant raised the issue of his physical disability Pitcher arranged a medical appointment with the respondent’s doctor who in turn confirmed that the applicant was not able to perform the dock duties on the alternative shift because of his physical disability.
My observation of both witnesses leads to the conclusion that the applicant was a witness of truth who never once sought to deny his actions in using the company equipment even though he was not astute enough to fully appreciate the serious consequences he faced because of those well-intentioned actions. On the other hand, Pitcher could provide no plausible explanation for his overbearing behaviour on the date of termination, having already made a decision to terminate the applicant’s employment before any discussion with him concerning his conduct on 4 September 1995. I am inclined to the view that Pitcher was unhappy with the applicant’s refusal to alter his shift on 1 September 1995 and, at first, tried to bully him into changing with the threat of termination. However the medical material on that occasion stayed his hand.
Pitcher gave evidence that dismissal was necessary as a disciplinary measure where a supervisor breached the company policy. The respondent gave no evidence of having considered any other disciplinary measures such as demotion or transfer. Nor was there any evidence of any attempt to counsel the applicant about his behaviour after each breach with due consideration being given to the applicant’s reasons for his behaviour and his otherwise good record.
In considering the harsh consequences of termination the interests of both the employer and the employee should be balanced one against the other. Clearly the consequences of the termination were particularly harsh where the applicant is disabled by a work-related injury and after nearly ten years of otherwise good service he stood to loose secure employment and his accrued entitlement to long service leave. Against these considerations the respondent correctly points to the need to maintain safety and industrial harmony at the worksite as well as impose some discipline amongst the employees to ensure observance of its policies.
The decision to dismiss was made by Pitcher without regard to the need to obtain any explanation and in that sense was procedurally unfair. Insofar as there is procedural unfairness it can support a finding that a termination is harsh, unjust or unreasonable (Gooley v Westpac Banking Corporation (1995) 59 IR 262 at page 280).
Bostik (Australia) Pty Ltd v Gorgevski (1992) 41 IR 452, Shepherd and Heerey JJ at page 459 of that decision said of the words harsh, unjust and unreasonable:
“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employees misconduct.”
Whilst accepting that there was misconduct I am satisfied that objectively speaking the termination was a harsh one in all the circumstances.
REMEDY
The applicant seeks reinstatement; the respondent arguing that in all the circumstances such a remedy is impracticable. The respondent has filled the position held by the applicant and also points to the serious consequences for discipline in the workplace if a supervisor who persistently breaches company policies returned to his position. Obviously the respondent could have avoided all these consequences by considering other less draconian methods of discipline.
One of the matters I have given consideration to in determining that reinstatement is impracticable is that even at hearing the applicant demonstrated a remarkable lack of appreciation of the risks his conduct carried in the safety and the industrial sense. I consider that this is a case where it is appropriate to award compensation to the applicant addressing the consequences he faced as a result of the termination of his long term employment. At the date of termination the applicant was in receipt of a sum of $42,000 gross per annum. Subsequent to his termination he obtained employment for a short time between 11 September and 22 September earning $634.97 and $779.18 (totalling $1,414.15 gross) working as a truck driver with a former colleague from Ipec. Because of his hip injury he was unable to handle the unloading of freight and the truck driving, being forced to give up that employment. He is also found it difficult to obtain further employment because references to his injury deter prospective employers.
Despite the respondent’s belief that it had the right to summarily dismiss the applicant it did, in any event, pay him on top of his entitlements four weeks’ pay in lieu of notice as well as $2,000.00 for out-placement services.
The applicant’s Counsel was invited, amongst other things, to address the Court on the question of compensation. Regrettably the only contribution made was to seek payment to the applicant of the full compensatory sum allowed by the Act, without addressing the question of how this should be calculated.
For the loss of the chance to accrue his long service leave entitlement, the opportunity to consider other alternatives to termination where there was a good record of lengthy service and the loss of the chance to retain his secure employment, I have assessed compensation at $5,500.00. In making this assessment I have borne in mind the reluctance of the applicant to accept that there were real risks to people, property and the employer’s industrial environment as a result of his conduct as well as the amounts paid to him at termination exclusive of his entitlements to that date.
MINUTES OF ORDERS
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.
I certify that this and the preceding fourteen (14) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 5 March 1996
Solicitors for the Applicant: Maurice Blackburn & Co
Counsel for the Applicant: Mr Steve Anger
Solicitors for the Respondent: Freehill Hollingdale & Page
Counsel for the Respondent: Mr C. Blanden
Date of hearing: 1 & 2 February 1996
Date of judgment: 5 March 1996
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