Marijanich v Vaquero Pty Ltd (Trading as Sidero Construction)

[1997] IRCA 37

DECISION NO:37/97

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - VALID REASON.

Workplace Relations Act 1996 (Cth) (formerly Industrial Relations Act 1988) Ss 170DC, 170DE(1),170EA, 170EDA(1)(a).

Bruno MARIJANICH -v- VAQUERO PTY LTD (trading as SIDERO CONSTRUCTION)
WI 1456 of 1996

BEFORE:        R. D. FARRELL JR
PLACE:           DARWIN (Heard in Perth)
DATE:              21 February 1997

IN THE INDUSTRIAL RELATIONS     )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          

No. WI 1456 of 1996

BETWEEN:  

Bruno MARIJANICH
  Applicant

AND:  

VAQUERO PTY LTD
  (trading as SIDERO CONSTRUCTION)
  Respondent

MINUTE OF ORDERS

BEFORE:                 R. D. FARRELL JR

PLACE:  DARWIN (Heard in Perth)

DATE:  21 February 1997

THE COURT ORDERS THAT:

1.          The respondent pay the applicant the sum of            $5773.00 by way of            compensation.

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

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

WI 1456 of 1996

BETWEEN:

Bruno MARIJANICH
Applicant

AND:

VAQUERO PTY LTD
(trading as SIDERO CONSTRUCTION)
Respondent

REASONS FOR DECISION

21 February 1997  R. D. FARRELL JR

This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). The application is for compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Bruno Marijanich (“Mr Marijanich”), by the respondent, Vaquero Pty Ltd trading as Sidero Construction (“Sidero”). It was not contended that reinstatement was practicable.

Findings as to the Facts

Mr Marijanich is 54 years of age and has worked as a sand blaster and painter, and also as a crane driver.

Sidero is a company owned and run by Mr Savas (Steve) Lazidis. Its sole business at the relevant time was the provision of maintenance services, including boiler-making and painting, under a contract with Coogee Chemicals, a business with its plant in Kwinana.

Mr Lazidis was also the principal of another company, trading as Alpha Crane Hire (“Alpha”). That company had recently commenced a business of hiring out cranes, sometimes with the services of a crane-driver.

In late May or early June 1996, Mr Marijanich visited the office of Mr Lazidis to “say hello”. At the time, Mr Marijanich was employed by SDR Constructions, a company run by two of Mr Lazidis’ sons. In the course of a conversation between Mr Marijanich and Mr Lazidis, Mr Marijanich told Mr Lazidis that he was an experienced spray painter and blaster, and that he could also drive cranes.

Mr Lazidis, who had already placed a newspaper advertisement seeking a full-time blaster and painter for Sidero, offered Mr Marijanich the job at a wage rate of $15.00 per hour. Mr Marijanich considered this an attractive rate of pay. After checking with Mr Lazidis’ son at SDR Construction, Mr Marijanich accepted the offer. He left SDR Construction and began work with Sidero on 6 June 1996.

He was employed at the Coogee Chemicals plant throughout his employment, except for a short period in late August when he was sent to work with an Alpha crane at the BP refinery. The potential complications arising from the separate corporate identities of Alpha and Sidero were not addressed at the hearing.

Mr Marijanich’s work at Coogee Chemicals consisted almost solely of painting or preparation for painting. He sometimes had to use a crane to assist him to move things in the course of his painting duties. On some occasions, when there was no painting to do, he would be asked to assist the boilermakers.

In the first week of September 1996, Mr Marijanich was granted compassionate leave to attend to funeral arrangements on the death of his mother-in-law. During Mr Marijanich’s absence, Sidero engaged a contract painter in order to meet a deadline on the painting job Mr Marijanich had been working on.

When Mr Marijanich returned to work on Friday 6 September, 1996, the contract painter was still working. Rather than work with the painter that day, Mr Marijanich was asked to work as a “dogman” with one of the cranes. He was reluctant to do so, being of the view that he was not a qualified dogman. His supervisor, Mr Tsalamangos, contends that any crane driver would know how to perform the duties of a dogman. Mr Marijanich disputes this, saying they are different qualifications.

At the end of that day, Mr Marijanich was advised that his employment was terminated.

Mr Tsalamangos says he told Mr Lazidis on 6 September 1996, the day Mr Marijanich returned to work, that there was no more work for him. Mr Tsalamangos says they were sometimes busy for a few months and then not. He claims Sidero had no painting work for a month or two after Mr Marijanich left.

Mr Lazidis has no recollection of speaking with Mr Marijanich after his return from compassionate leave. He believes he decided to terminate Mr Marijanich’s employment while he was still away on compassionate leave, after seeing some of Mr Marijanich’s poor workmanship. He does not recall who advised Mr Marijanich of the decision.

Mr Marijanich says he was advised of the termination of his employment by a new manager who had been engaged while he was on compassionate leave. He says the new manager told him that Sidero had to “let him go” because there was not much work for him to do. He was paid one week’s pay in lieu of notice, together with his accrued leave entitlements.

Mr Marijanich says he then drove off in search of Mr Lazidis, pulling up to talk to him in his car near the Coogee Chemicals plant. Mr Marijanich says that when he asked Mr Lazidis why he was being dismissed, Mr Lazidis replied that he had had three complaints from Coogee Chemicals. Mr Marijanich says that when he sought to discuss the matter further, Mr Lazidis raised his arm as if to wave goodbye and drove off.

Whether There was a Valid Reason for Termination

Section 170EDA(1)(a) confers the onus on the employer to prove that there was a valid reason for the termination of the employee’s employment connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

The notice of employer’s appearance filed by Sidero on 19 November 1996 summarises the reasons given for termination as “insufficient work, & unavailable to attend when required”.

The latter of these reasons was not raised in the hearing. The reasons for termination put forward by Sidero during the hearing fell into two categories. There were allegations of unsatisfactory performance (connected with Mr Marijanich’s capacity or conduct), and a contention that there was insufficient work available for Mr Marijanich (based on the operational requirements of the business).

The Court heard evidence on these matters from Mr Marijanich, Mr Lazidis, Mr Tsalamangos, Mr Brian Andrews - a manager at Coogee Chemicals, and Mr Glen McLagan - an office employee at Sidero.

The nature of the evidence was such that it has been difficult to make findings of fact with any confidence.

The business appears to have been conducted in a very informal manner. Little appears to have been committed to writing. Evidence was given of a number of incidents, but the timing of the incidents was usually unclear. As a result, I have not always been confident that the witnesses were giving evidence of the same incidents. General evidence was given that Mr Marijanich was given a series of warnings, and that warnings were given after each of the incidents described.

The only documentary evidence available was a diary kept by Mr Tsalamangos, apparently for the purpose of preparing invoices for jobs which were charged to Coogee Chemicals at an hourly rate. Mr Tsalamangos explained that other jobs done for a lump sum were not noted in this diary. A comparison between the hours noted in the diary for Mr Marijanich and the hours shown in the wage book for which Mr Marijanich was paid confirms that Mr Marijanich worked more hours than are noted in the diary.

While the diary lists work done by Mr Marijanich during his employment, the diary does not readily correlate with the oral evidence. The oral evidence makes reference to several jobs, most of which cannot be identified in the diary. It may be that most of the problems arose in connection with lump sum jobs.

In any event, the reliability of the diary, and indeed Mr Tsalamangos’ credibility generally, was tainted by a discrepancy between the diary as it was presented at the hearing and copies obtained during inspection of the diary by Mr Marijanich’s solicitor. Inspection took place at some time between Sidero filing its list of documents on 21 January 1997 and the hearing. It seems clear that a new entry has been made in the diary, apparently in Mr Tsalamangos’ handwriting, since 21 January 1997. The new entry related to an allegation that Mr Marijanich had caused $2000 damage to a crane while using it on 31 July 1996. Mr Tsalamangos maintained in evidence that the entry was made before Mr Marijanich’s dismissal in September 1996. I have no doubt that his evidence was incorrect on this point and I find it difficult to accept that he could be honestly mistaken about an entry which must have been made within the past three weeks. Accordingly I intend to direct the Registrar of this Court to refer these reasons for consideration by the Director of Public Prosecutions.

While the evidence of Mr Marijanich’s alleged unsatisfactory performance was often general in nature, there were some references to specific occasions and incidents, which I will address before considering the general allegations.

Mr Andrews, of Coogee Chemicals, says he complained to Sidero that Mr Marijanich was disruptive to Coogee Chemicals workers on site. He complained that Mr Marijanich kept talking and distracting them. Mr Lazidis says that, following a complaint from Coogee Chemicals, he had to tell Mr Marijanich not to leave his job and talk to people from Coogee Chemicals, thereby disrupting their work. He says this occurred within a month of Mr Marijanich starting.

Mr Marijanich says that he was initially told by Mr Lazidis that he was to take orders from and was answerable to the Coogee Chemicals supervisor. I accept that this may have been a misunderstanding on Mr Marijanich’s part. It was not until later that he learnt that Mr Tsalamangos was meant to be his supervisor. He agrees Mr Lazidis had told him that he “talked too much”, and told him “from now on don’t talk to Coogee Chemicals”.

There was no direct evidence of any repetition of this behaviour after Mr Lazidis raised the matter with Mr Marijanich. Counsel for Sidero suggested that an incident concerning a pipeline involved such a repetition, but there was no evidence that the interaction with Coogee Chemicals personnel on that occasion was at Mr Marijanich’s initiative, and there was no firm evidence dating that incident after the instruction.

It was alleged that Mr Marijanich used incorrect paints, contrary to direction. Mr Tsalamangos spoke of a job, apparently the painting of some pipes, having to be redone when Mr Marijanich used a paint called Duramestic 2000, which did not require an undercoat, rather than applying the undercoat as instructed.

Mr Marijanich claims that personnel at Coogee Chemicals asked him for his opinion about the job, and that he recommended Duramestic 2000. Mr Marijanich then “ran it by” Mr Tsalamangos and asked him if he could supply the paint. Mr Marijanich claims that Mr Tsalamangos gave him the “OK” to use the paint at the time.

Mr Marijanich maintains that he didn’t order any paint himself, but that Mr Tsalamangos ordered the paint through Mr McLagan, in Sidero’s office.

Mr Lazidis was angry when he learned that no undercoat had been applied and that a new paint had been used. Mr Lazidis and Mr Tsalamangos say that Coogee Chemicals required specified paints to be used, and did not allow use of other products.

Mr Marijanich accepts now that it was a mistake to do the work in that way, and accepts that Coogee Chemicals wanted things done otherwise. Mr Marijanich explains, however, that he did not know this at the time, and that Mr Tsalamangos had approved his idea to use the new paint. Mr Tsalamangos denied having done so.

In Sidero’s summary of facts, it is claimed that Mr Marijanich ordered the wrong paint, so that Sidero was left with thousands of dollars of unusable paint.

Mr Lazidis could say only that he did not order the paint. He had no direct evidence that Mr Marijanich ordered it. He says Mr Tsalamangos normally ordered the paint, and sometimes Mr McLagan ordered it at Mr Tsalamangos’ request. Mr Tsalamangos says that Mr Marijanich ordered the paint through Mr McLagan in the office.

Mr McLagan says that he would usually order the paint and would usually have the orders checked by Mr Lazidis. The process was that someone would request a purchase. Mr McLagan would find out the price  and then get Mr Lazidis’ approval. He believes Mr Marijanich placed orders for paint sometimes. He conceded it was possible that an order might proceed from time to time without Mr Lazidis’ express approval. He confirms that Mr Tsalamangos had an order book.

In summary then, the work was done incorrectly, and the wrong paint bought. Mr Tsalamangos says it was done contrary to instructions. Mr Marijanich says that while he understands now that it was done incorrectly, he did not know that at the time. He had suggested an alternative method to Mr Tsalamangos and Mr Tsalamangos did not demur. Mr Lazidis cannot know whether Mr Tsalamangos approved the work method or not.

I prefer the evidence of Mr Marijanich to that of Mr Tsalamangos, because:

·   there was no advantage to Mr Marijanich in disobeying instructions to get the work done more quickly - he was paid by the hour, whereas Sidero may have been paid by lump sum;

·   if Mr Lazidis did not approve the ordering of the paint, it is unlikely that Mr McLagan would have ordered it at Mr Marijanich’s request without at least Mr Tsalamangos’ approval - no order book records were tendered; and

·   my perception that Mr Tsalamangos’ evidence was partisan and unreliable, most obviously illustrated by the evidence referred to earlier in relation to the late diary entry.

Accordingly I am not satisfied Mr Marijanich acted disobediently in connection with this incident, but find rather that he acted in ignorance of Coogee Chemical’s requirements, and with the acquiescence of his supervisor.

In a further allegation, Mr Tsalamangos says Mr Marijanich wouldn’t use a steel brush to properly remove rust before painting a steel platform which could not be blasted due to its proximity to chemical tanks. As a result, the paint work was unsatisfactory.

Mr Marijanich agrees that he was told to stop blasting the platform, and was instructed to scrape it down with wire brushes and scrapers. He says he did so, and that he had a casual Technical Assistant to help him. Mr Tsalamangos disputes that they had a casual employed at that time. Mr Marijanich says it was intended to apply a cosmetic coat, and then a full coat, but he was not allowed to go back and finish it, being allocated instead to another job. It then rained while the metal was still exposed and Mr Marijanich surmises that that is why it started to rust again.

I accept that the job may have had to be redone, but I again prefer Mr Marijanich’s evidence on this matter as to why the work result proved to be unsatisfactory.

The final alleged example of poor workmanship as a painter relates to the job Mr Marijanich was working on before Mr Marijanich went on compassionate leave. He was painting a large hopper which was being constructed for the Port Authority.

Mr Lazidis says that when the painting contractor came in to finish the hopper, it was discovered that Mr Marijanich had not blasted the hopper properly before painting it, and that the work done by Mr Marijanich had to be repainted. Mr Lazidis says the hopper should have been blasted, given one coat of primer and then a top coat. Mr Lazidis says he saw it when the contractor had finished, and had an opportunity to compare the contractor’s work with Mr Marijanich’s work. It appeared to both Mr Lazidis and Mr Tsalamangos that Mr Marijanich had painted over the rust without properly blasting it.

Mr Lazidis says he made the decision then, while Mr Marijanich was away, to dismiss Mr Marijanich.

Mr Marijanich denies that his work on the hopper was substandard, and says there was never any complaint to him about it. It may be that, had it been raised with him at the time, he would better recall the circumstances of that job.

In its summary of facts, Sidero claimed that Mr Marijanich caused $2,000 worth of damage in an incident with a crane on or about 31 July 1996.

Mr Lazidis says that the first time Mr Marijanich was asked to drive the 20 tonne crane, Mr Lazidis supervised; he wasn’t confident of Mr Marijanich’s capacity to drive the crane.

Mr Marijanich has no knowledge of any damage to a crane. He recalls an incident when Mr Lazidis told him to push a pedal, and on doing so a drum was undone and a wire rope tangled up. However, he believes that the rope was not damaged and that the problem was resolved that day.

Mr Lazidis says that two weeks later he asked Mr Marijanich to do another job at the BP refinery, which was a “big disaster”. A clearance pass for BP tendered in evidence would indicate that this must have been after 23 August 1996.

As a result Mr Lazidis says he had to take Mr Marijanich out of driving cranes.

The evidence from Sidero in relation to this allegation was very vague, and lacked obvious potential corroborating evidence of damage to the crane. The one part of the evidence which might have been intended to be corroborative, the diary, appears to have been fabricated. There was very little evidence as to the manner in which the damage was alleged to have occurred.

I have found, for reasons set out below, that Mr Marijanich was qualified to operate the crane it was alleged he damaged. He made some reference to the fact that the crane was computerised; the nature of that evidence leads me to infer that there were aspects of that crane’s operation which Mr Marijanich found unfamiliar.

I am not, on balance, satisfied that it is more probable than not that the alleged damage occurred. If it did occur, I do not accept that it was a valid reason to permanently remove Mr Marijanich from crane driving duties rather than, for example, providing him with minimal training.

Sidero make general allegations as to Mr Marijanich’s proficiency as a painter.

Mr Lazidis gave evidence that he believed Mr Marijanich did not know how to use a spray gun, and that on one occasion he was using too thin a nozzle, so that the paint had to be thinned. This was not put to Mr Marijanich.

Mr Tsalamangos says that Mr Marijanich’s paintwork was not up to a professional standard, and that he would always try to make shortcuts. He says he complained repeatedly to Mr Lazidis, but that Mr Lazidis kept giving Mr Marijanich another chance. He said that Mr Marijanich had a mind of his own, and consistently refused to follow instructions as to how work was to be done.

Mr Andrews says he met Mr Marijanich as he was wandering around and considered him not fully aware of what he was doing.

Mr Marijanich maintains that Mr Tsalamangos and Mr Lazidis are not experienced painters, but nevertheless he says he had always done what he’d been told.

Mr Marijanich says that when he first started Mr Lazidis used to compliment him on what he described as the “quality control” of his work, complimenting him for example on his ability to avoid run-ons in the paint.

Mr Marijanich maintains that he always tried to maintain quality control, unless Mr Lazidis required him to hurry the job. Mr Marijanich volunteered evidence of two occasions when he believes his work was not of the standard he set for himself, through no fault of his own.

Mr Marijanich tells of an occasion in the last month of his employment when he was blasting a seed container, but was finding it very difficult and time consuming to get the paint off. It was a lump sum job, for which Sidero were only getting $250. Mr Lazidis told him to apply a lower level of blast, and to finish the job quickly. Mr Marijanich says did as he was told, though the result did not meet his standards. When the paint was applied to the inadequately blasted surface, it began to flake within a day. When Coogee Chemicals complained, Mr Marijanich claims that Mr Lazidis “wiped his hands” of the job, and reprimanded Mr Marijanich.

Mr Marijanich volunteered information on another job, to the effect that he was required by Mr Tsalamangos to paint a small hopper with insufficient paint, so that the paint was too thin and the result was not up to Mr Marijanich’s standards.

I place little weight on this evidence, which was not put to Mr Lazidis or Mr Tsalamangos.

Mr Marijanich recalls Mr Lazidis being unhappy on one occasion about the time a job was taking, but says it was due to the weather conditions, with strong winds and rain delaying the work.

Mr Lazidis says that he told Mr Marijanich many times that he had had complaints, and that he couldn’t afford to lose the Coogee Chemicals contract. He says Mr Marijanich would react by laughing and smiling. Mr Lazidis says he had told Coogee Chemicals to leave it up to  him, and resolved to watch Mr Marijanich more closely. He says that Mr Marijanich would not accept correction, and would insist on doing things his way.

Mr Lazidis says he warned Mr Marijanich that his job was on the line. Mr Lazidis says that about a month before his dismissal, after a complaint from Mr Andrews, Mr Lazidis told him of Coogee Chemical’s dissatisfaction with his work and “told him to watch out”.

Mr Lazidis initially indicated in evidence that he kept Mr Marijanich away from Coogee Chemicals after that, and sent him driving cranes for Alpha, but it became clear that Mr Marijanich continued to do any painting work which was required by Coogee Chemicals in August. However, Mr Lazidis maintains that after that Mr Marijanich worked only in an area known as “the graveyard”, about 500m from the plant. He thinks Mr Marijanich never went back to the Coogee Chemicals plant.

As I have observed earlier, the evidence on these matters is somewhat vague, due to the informal manner in which Sidero did business.

That informality no doubt has its advantages to the business. However, it is a serious step to deprive an employee of his or her employment, and necessarily deserves some care and formality. The unlawful termination provisions of the Act recognise this and have the effect of safeguarding employees from capricious termination of their employment.

There were no written warnings issued to Mr Marijanich. While written warnings may not always be necessary in all circumstances, the lack of such formality in any discussions between Mr Marijanich and his employers makes it more probable that, even if a warning were merited, it was less likely to be effectively communicated. It may be that even if what was said was intended as a warning that if his work did not improve then his job was in jeopardy, Mr Marijanich may have misinterpreted it as a mere exhortation to improve.

Of course, written warnings would also have assisted Sidero to meet its evidentiary burden.

Having considered all the evidence before me, I am not satisfied that it is more probable than not that Mr Marijanich’s performance was such that there were grounds on which a reasonable employer could be justified in terminating his employment.

To the extent that his work was sometimes below the required standard and resulted in complaints from Coogee Chemicals, I am not satisfied that Mr Marijanich was always the culpable party, if ever. I am not satisfied that he was properly warned of any perceived shortcomings in his performance.

I turn now to consider whether there was a valid reason for the termination of Mr Marijanich’s employment based on the operational requirements of the undertaking, establishment or service. Before considering the claim that there was no painting work for Sidero at all, I will consider the contention that, because of an alleged ultimatum from Mr Andrews, there was no capacity for Sidero to use Mr Marijanich on Coogee Chemicals’ work at all.

Mr Lazidis gave evidence that Mr Andrews complained to him on numerous occasions about Mr Marijanich’s work and performance. He says that finally, about a month before Mr Marijanich’s dismissal, that is early August 1996, Mr Andrews told Mr Lazidis that if he did not replace Mr Marijanich, he would ask Coogee Chemicals to end the maintenance contract with Sidero.

Mr Andrews verified a prior written statement to the effect that he told Sidero to employ another painter and not to use Mr Marijanich. However, in the course of his oral evidence he described his communication with Sidero in less emphatic terms, so that it seems to have been more in the nature of a suggestion than an ultimatum. He says he told Mr Lazidis that “there are plenty of other painters around”.

Mr Andrews placed this conversation in November or December 1996, by reference to his date of departure from Western Australia on 23 December 1996. This would, of course, have been after Mr Marijanich’s dismissal. Counsel for Mr Marijanich submitted that this showed that it was likely that Mr Andrew’s complaints actually concerned work done by whoever replaced Mr Marijanich. While I have noted that Mr Andrews professed difficulty in estimating the timing of the incidents he recounted, having carefully considered Mr Andrews’ evidence, I accept Counsel for Mr Marijanich’s submission, at least in part.

For example, Mr Andrews says he complained about work done by Sidero on a 60 cubic metre tank, where the undercoat was too thin and the work was not up to standard. Mr Marijanich denies ever painting a 60 cubic metre tank. Nor do Sidero allege he did so.

Mr Andrews gave evidence that an undercoat had been used that Coogee Chemicals had told Sidero not to use. This was the occasion for the alleged ultimatum. Sidero make no such allegation in relation to Mr Marijanich.

It also seems, if one were to accept Mr Lazidis’ timing, that Mr Marijanich continued to work on the Coogee contract for a month, despite the alleged ultimatum.

Mr Andrews’ evidence was vague. He says some of the painting work was not to the required standard. He conceded that he assumed it was Mr Marijanich’s work because as far as he knew, Mr Marijanich was the only painter. He says he came to know Mr Marijanich by sight “towards the end”. He was not, however, aware that Mr Marijanich had been dismissed until after 22 October 1996, when he wrote a letter to Sidero complaining about Mr Marijanich coming onto the site improperly dressed; either the complaint was much delayed or it was Mr Marijanich’s replacement whose dress standards were sub-standard. Apart from occasions when he personally inspected unsatisfactory paintwork, Mr Andrews was often relaying complaints he had received from other Coogee Chemicals’ personnel.

I am satisfied that it is more probable than not that Mr Andrews’ suggestion that Sidero get a new painter came after Mr Marijanich left and that the suggestion was prompted, at least in part, by work done after Mr Marijanich’s departure.

As for the allegation of a general shortage of work, almost all Mr Marijanich’s work during his employment was at Coogee Chemicals, performing blasting, painting and related tasks. Sidero’s advertisement was for a full-time painter and blaster. Mr Lazidis lured Mr Marijanich away from what appears to have been a full-time job. Mr Marijanich consistently worked overtime over the weekends.

Mr Lazidis says that after Mr Marijanich was dismissed, Sidero engaged a painter on a casual basis “on and off”, but no wage records were tendered to corroborate this.

Mr Marijanich holds a crane licence, obtained in 1967, authorising him to operate cranes with a lifting capacity of up to 20 tonnes. Mr Lazidis and Mr Tsalamangos, who gave evidence before Mr Marijanich, expressed doubts as to whether he held a licence; they claim they had never seen it and that he was never able to produce it on request. It was later tendered in evidence. I find, in accordance with the evidence of Mr McLagan, that it was known and accepted by those at Sidero that Mr Marijanich was licensed to operate cranes with a lifting capacity of up to 20 tonnes.

Mr Lazidis contends that Mr Marijanich told him that he had an unrestricted crane licence. I am satisfied that Mr Marijanich did not misrepresent the nature of his licence. It may be that Mr Lazidis assumed that Mr Marijanich’s licence was unrestricted. That is not Mr Marijanich’s fault, and I am satisfied that Mr Lazidis learnt of the restriction at an early stage in Mr Marijanich’s employment.

I accept that most of the work to be done for Alpha required a licence to operate cranes with lifting capacities of more than 20 tonnes. However it was apparent from the evidence that Alpha were prepared to train other employees to obtain the licence and that the necessary training was not extensive.

It has been confirmed in recent decisions of the Court that employers must establish as an objective fact that the operational requirements of the employer were such that they constituted a valid reason for terminating the employment of the applicant. This need not be difficult. The Court will often be prepared to infer from the fact that an employee has not been replaced a conclusion that there was insufficient work available to justify his or her continued employment.

In the circumstances of this case, where

·   a full time job was offered;

·   the work arose from a maintenance contract, rather than, for example, a construction contract;

·   there was a consistent pattern of full time work with significant overtime over three months; and

·   there is no evidence that anything was said to Mr Marijanich to suggest in advance that there may be a falling off in work

it is a surprising development for the work to suddenly evaporate. In the circumstances the uncorroborated oral evidence of two of the employers’ management, one of whom’s credibility is severely tainted, was insufficient to satisfy me that there was no painting work for Mr Marijanich. In any event, given that a mechanism seems to have been in place under which Sidero employees provided labour for Alpha, I am not satisfied that Mr Marijanich could not have been trained to obtain an unrestricted crane licence to enable him to be used for those purposes instead of dismissing him.

Accordingly, I find that Sidero has breached Section 170DE(1) of the Act, having failed to satisfy me that there was a valid reason for the termination of Mr Marijanich’s employment connected with Mr Marijanich’s capacity or conduct or based Sidero’s operational requirements.

Whether the Applicant was Given the Opportunity to Defend Himself against the Allegation

Section 170DC of the Act provides that:

“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; or

(b)the employer could not reasonably be expected to give the employee                    that opportunity.”

I find there has been a breach of this provision, given Mr Lazidis’ evidence as to the timing of his decision to dismiss Mr Marijanich.

Compensation

In assessing the compensation that is appropriate, the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened.

Counsel for Sidero submitted that Mr Marijanich’s employment was likely to end soon in any event, given the evidence as to his unsatisfactory performance and work availability.

However, for reasons set out above, I have not accepted much of this evidence. It is in my view more likely that Mr Marijanich was the scapegoat for the shortcomings of others than that his performance was of a standard justifying dismissal. Nor was there sufficient evidence to satisfy me that there was no work for him. There was no evidence to show that it was likely that circumstances would arise to render any future dismissal in accordance with the Act, where this dismissal was in breach of it.

Accordingly, I find that had Mr Marijanich not been dismissed on 6 September 1996, it is more probable than not that he would have remained in full-time employment for at least three months.

Based upon the wages book, I have calculated Mr Marijanich’s average weekly gross earnings during his employment by Sidero from Thursday 6 June 1996 to Friday 6 September 1996 at $766.79 per week, given that his total gross earnings were $10,275 and he was employed for 13 weeks and 2 days.

The evidence before the Court is that Mr Marijanich found full-time employment with another company on 21 November 1996, and that in the interim he had earned $1,785.35 gross in casual employment. Mr Marijanich’s rate of pay in his new employment is not clear on the evidence. It was not suggested that he is suffering any continuing loss. Mr Marijanich was paid one week’s pay in lieu of notice.

His have assumed that his average weekly earnings for the ten weeks and three days since his dismissal would have been $8,128. I have deducted the $570 he was paid in lieu of notice, and the $1,785 he earned in that period, leaving $5773. 

Conclusion

I will order that Sidero pay Mr Marijanich compensation of $5773.

I certify that this and the preceding 19 pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.

Associate:
Dated:  21 February 1997

APPEARANCES

Counsel appearing for the applicant:     Mr D I Connor

Solicitors for the applicant:  Hoffmans

Counsel appearing for the respondent:  Mr de Kerloy

Solicitors for the respondent:  Mony de Kerloy

Dates of Hearing:  11, 12 February 1997

Date of Judgment:  21 February 1997