Mark Telfer v Tatiara Meat Co Pty Ltd

[1995] IRCA 626

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - Misconduct - Reinstatement

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

MARK TELFER -V- TATIARA MEAT CO PTY LTD

No. SI95/1159

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE (HEARD IN BORDERTOWN)
DATE:  2 NOVEMBER 1995

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI95/1159

B E T W E E N:

MARK TELFER

Applicant

AND

TATIARA MEAT CO PTY LTD

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  2 NOVEMBER 1995

THE COURT ORDERS THAT:

1. The Respondent reinstate the Applicant to his former position within 21 days.

1. The Respondent pay to the Applicant the remuneration he has lost as a result of the termination of his employment.

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

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI95/1159

B E T W E E N:

MARK TELFER

Applicant

AND

TATIARA MEAT CO PTY LTD

Respondent

BEFORE:                 JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE (HEARD IN BORDERTOWN)

DATE:  2 NOVEMBER 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that his employment has been terminated unlawfully. He seeks reinstatement.

The Applicant was employed as a Production Worker at the Respondent’s Bordertown meatworks.  His employment commenced on 15 February 1995. His employment was governed by the “Tatiara Meat Company Agreement”, an agreement certified by the Australian Industrial Relations Commission.

From about April 1995 the amount of work available at the meatworks diminished. The Applicant was dissatisfied with this and so sought out other more lucrative employment. The Applicant gave his evidence in an articulate and straightforward manner. He gave evidence that he obtained an offer of employment as a Farm Hand and that he intended to resign from his employment on the Tuesday following the Public Holiday on 15 May 1995.

On 10 May 1995 he attended the pay office and gave written notice of his resignation from the Union and from the social club.  On the same evening or the following evening he had a conversation with the Night Manager, Mr Elert in the nurses station. The Applicant had sought out Mr Elert because he was feeling dizzy and wanted to obtain medication from the nurses station.. 

There is a direct conflict on the evidence of Mr Elert and the Applicant about what was said in that conversation.  The Applicant’s evidence was that he told Mr Elert that he was intending to resign after the public holiday and wanted to know if he would have any difficulty obtaining further work within the Respondent when work became more plentiful.  Mr Elert gave evidence that the Applicant said that he was giving five days notice of his resignation to “keep sweet” with the Company.  (It was agreed by the parties that the practice at the Respondent’s work place is to give one shift’s notice).  Mr Elert made no note of the conversation and nothing was passed on to the pay office concerning it.  On balance I prefer the Applicant’s version of that conversation. His version of that conversation is consistent  with both his prior and subsequent actions. He gave evidence that he would have given written notice at the appropriate time. In view of the fact that the applicant gave written notice to both the social club and the Union I think it is very likely that if and when he gave notice of his resignation , he would do so in writing.

On 12 May 1995 the Applicant called his supervisor, Mr Michael Brooks a “fuck head”.  Mr Brooks summarily dismissed the Applicant a minute or so later. Mr Brooks gave evidence that the words “fuck head ’’ themselves did not offend him, but the fact that they were directed to him did offend him.   The Applicant argued with Mr Brooks and they went to the office of the Plant Manager Mr Ericson.  A further heated conversation took place.  The end result of that conversation was that the Applicant’s dismissal was confirmed by Mr  Ericson.

In my view the conduct of the Applicant did not justify  the termination of his employment without warning.  Some form of discipline was appropriate. The agreement that governs the applicant’s employment permits suspension of workers for a maximum of 10 days. In my view that would be an appropriate penalty for the applicant, together with a warning that such behaviour ,if repeated, would result in the termination of his employment.

I therefore find that the termination of the applicant’s employment was  unlawful.

The offer of employment as a Farm Hand fell through and the Applicant has been unable to find work other than casual shearing work.

In my view reinstatement is practicable in this matter.  The Applicant appears to have been held in high regard by all witnesses other than Mr Brooks, who now works  a different shift. In my view there are no obstacles to the applicant being reinstated to his former position.

I certify that this and the preceding page is a true copy of the reasons for my judgment.

DATE OF HEARING            :         11 OCTOBER & 2 NOVEMBER 1995
FOR THE APPLICANT       :          MS F ROBINSON
FOR THE RESPONDENT    :          MS S SHAW