Martin v Barry Bros Specialised Services Pty Ltd
[1997] IRCA 52
•07 March 1997
DECISION NO:52/97
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - whether proof of SERIOUS MISCONDUCT - whether employee disobeyed lawful and reasonable direction to work underground - procedural fairness - whether any or any proper opportunity to respond to allegation of MISCONDUCT
Workplace Relations Act 1996 ss 170DB, 170DC, 170DE(1),
Income Tax Assessment Act 1936
ERNEST JOHN MARTIN - v - BARRY BROS SPECIALISED SERVICES PTY LTD
No. VI 2296 of 1996
Before: Judicial Registrar Millane
Place: Melbourne
Date: 7 March 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2296 of 1996
B E T W E E N :
ERNEST JOHN MARTIN
Applicant
A N D
BARRY BROS SPECIALISED SERVICES PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 7 March 1997
THE COURT DECLARES THAT:
The termination of the applicant’s employment by the respondent on 17 July 1996 contravened the provisions of the Workplace Relations Act 1996.
AND THE COURT ORDERS THAT:
Within 21 days of the date of making these orders the respondent pay to the applicant the sum of $7360.60 net.
Any tax assessed by the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and payable in respect to the sum of compensation awarded by the Court to the applicant be paid by the respondent to the Commissioner for Taxation
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 2296 of 1996
B E T W E E N :
ERNEST JOHN MARTIN
Applicant
A N D
BARRY BROS SPECIALISED SERVICES PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 7 March 1997
REASONS FOR JUDGMENT
By an application filed on 7 August 1996 the applicant seeks reinstatement and compensation alleging that on 17 July 1996 the respondent terminated his employment in contravention of the Workplace Relations Act 1996 (the Act). His claim covers at least three areas. The first is the allegation that there was no valid reason for termination at the date of termination and, therefore, a contravention of section 170DE(1) of the Act. The second was the alleged failure by the respondent to allow him an appropriate opportunity, as contemplated by section 170DC of the Act, to respond to a number of allegations regarding his conduct prior to the decision to terminate and the implementation of that decision. Lastly, it was agreed that at termination the applicant was paid no compensation in lieu of notice; namely, one week’s pay as provided for by section 170DB of the Act. The applicant’s agreed average weekly earnings as at termination were $566.00 net and, therefore, any damages claimed are confined to that sum.
The respondent defends the proceeding by alleging that at the date of termination it had three bases upon which it justifies the decision to terminate. They are set out under three headings in a letter dated 24 July 1996 forwarded to the applicant subsequent to the termination (Exhibit R3):
“1. Gross misconduct
You were responsible for driving a company vehicle in a suburban area sounding the vehicle horn continually at 6.00 o’clock in the morning, apparently to raise the attention of one of our operators who you were to meet.
Complaints from residents resulted in the police being called to the scene. You subsequently yelled out and abused the police who attended to the extent that the police phoned the company’s after hours number and spoke to our Works Manager. They requested that we not allow you to drive our truck because you were too aggressive and that if you were to drive a truck whilst in that mood in their opinion, you would have been a danger to the public and may have killed someone.
Following this incident, Mr. Lilley informed you and warned you that your behaviour was considered as gross misconduct and that your employment was in jeopardy.
2. Insubordination/refusal to carry out company instructions
On the 16th June, Mr. King instructed you that vehicle unit 701 was not to be taken home by you and was to be parked in the company’s yard.
As you are aware, the company had received several complaints about the truck being parked in your street and additionally the company needed the unit to be available for work at the yard. These instructions were ignored by you.
Further, on Tuesday, 16h (sic) July, against instruction you refused to enter the underground pipe where you were working unless you were paid double time for the work. You also made statements that you would not be attending for work the following day. This placed in jeopardy the requisite safety arrangements for procedures required for the job as well as jeopardising the job itself.
3. Neglect of duty
During the majority of your shift on Tuesday, 16th July / Wednesday, 17th July, against instructions you remained in the cabin of the truck either sleeping or playing a guitar. In doing so, you failed to undertake your work and more importantly failed to provide the requisite support for the men working underground in a confined space, as required.
In doing so, you blatantly breached the safety procedures of the job and thus endangered men working in the confined space.”
The author of the abovementioned letter did not give evidence, even though the letter appears to suggest that it was he who decided to terminate the applicant’s employment. With regard to the procedural fairness issue, the respondent relies on an alleged opportunity offered to the applicant to go to its depot and speak to Jeffrey Colin King (King), the Geelong area manager, which opportunity was not taken up because the applicant became extremely agitated, abusive and threatening towards King and others during his final telephone conversation with King.
The respondent denies any liability to pay compensation in lieu of notice alleging that because of the events described in its letter, it was then entitled to summarily dismiss the applicant and in arguing this it relies on the qualification contained in section 170DB(1)(a) of the Act which is an exception to the requirement that a statutory minimum sum of compensation be paid in lieu of notice on termination.
THE WITNESSES
The respondent called the following witnesses:
-Cesar Melhem (Melhem), a Victorian branch organiser for the Australian Services Union;
-Detective Senior Constable Adam Fry (Fry), Altona North CIB, Victoria Police;
- Jeffrey Colin King (King), the respondent’s former Geelong area manager;
-David James Hannah (Hannah), the respondent’s supervising service manager; and
- Ian Lilley (Lilley), the respondent’s Victorian manager.
The applicant was not represented and gave evidence on his own behalf.
BACKGROUND
The respondent company operates a national business providing drainage and industrial cleaning services. In Victoria it has some fifty to fifty-five employees with four branches, one of which is located at Geelong. This is the location from which the applicant worked.
It was common ground that in approximately May 1995 the applicant commenced work with the respondent as a casual employee driving and operating one of the respondent’s twenty-four vacuum trucks.
His uncontested evidence is that before he commenced work with the respondent the applicant had some ten years’ experience and, in the period shortly prior to his employment with the respondent, he had attempted to start his own business in a similar field of operation. The failure of this business led to his return to employment.
There were no complaints about the applicant’s employment performance. Indeed, it was acknowledged by the respondent that he was a very capable employee. Because he was good at his job in February 1996 he was engaged as a permanent driver and operator of the truck he had been driving as a casual employee.
Problems appeared to have first manifested themselves in both his work and his relationships with his superiors from approximately May/June 1996. This is a significant period because from 18 May 1996 through to the date of termination King took up the position as the Geelong area manager and the applicant was answerable to King. It was apparent from the evidence given by both these men that they did not work well together at all times. Even though King in giving his evidence sought to suggest that their relationship was a good one, it is apparent from the applicant’s evidence and Lilley’s evidence that all was not well between them from the first meeting King held with the men he supervised as Geelong area manager. During that first toolbox meeting it appears that they clashed when the applicant sought, amongst other things, to be compensated by the company for the use of his mobile telephone on company business. This apparently led to the applicant disconnecting or not using his mobile phone for work. King agreed in his evidence that he understood that the mobile phone was not being used subsequent to that meeting.
One matter which became apparent during the hearing was that the applicant is a person who has a quick temper. For instance, he concedes that at the date of termination he was so agitated by the news that he was terminated, as he put it, “he lost it” and proceeded to bash the public telephone receiver he was using against the walls of the telephone booth. Although he could not remember what he said after he claims King told him that he was instructed to terminate his employment, he agreed that it was probable that he threatened at least King and made a statement to the effect that he would “rip his head off and put it up his arse”. He denied making similar or any other threats against Lilley. I note that although the letter set out above forwarded to the applicant following termination makes reference to threats made against the writer of that letter, no evidence was called to substantiate that allegation.
I am satisfied that there is a factual basis for saying that the applicant had an extremely quick temper and some difficulty managing his anger, particularly towards King for whom he said he had no respect. Notwithstanding this finding, I am not satisfied that there was any evidence called to suggest that the applicant was as a general rule confrontational and aggressive in his workplace, at least before the issues concerning his conduct arose from about June/July 1996.
The allegation of gross misconduct
It was conceded by the applicant that on a date in early July, possibly 10 July 1996, after the respondent had commenced work on its Kings Way drainage project, the applicant drove his truck in suburban streets in Deer Park sounding the air horn repeatedly.
At the time of the incident he was on night shift and was required to swap trucks with another driver/operator named Peter. He was given Peter’s address in Deer Park and attended the area between 5.00 and 6.00am. When he got there he could not find Peter’s home and Peter was not waiting outside. He now concedes that his actions in trying to rouse Peter by driving around the streets sounding the truck’s air horn was totally inappropriate.
Detective Senior Constable Fry was rudely awaken by the sound of the air horn and followed the truck until the applicant parked outside a public telephone box. The applicant alleges that he was frightened by the police officer suddenly rapping his badge against the window of the truck in a way which suggested to the applicant that the window might be broken. I accept that in the circumstances which occurred it is likely that the applicant acted in a hostile fashion towards the police officer who himself was not in a happy frame of mind having been woken from his sleep and, when he approached the truck, then believed that it may have been stolen. Instead of finding a thief, Detective Senior Constable Fry found the applicant sitting in the vehicle attempting to check Peter’s address.
The detective senior constable called other police to attend prior to dressing and pursuing the applicant’s vehicle. They attended and the applicant was questioned. The upshot of the incident was that he was not charged with any offence and the truck was delivered to Peter.
Detective Senior Constable Fry gave evidence and told the Court that he was concerned by what he perceived as the applicant’s aggressive behaviour. Because of this view he took it upon himself to ring the respondent during the day following the incident and complained to the respondent about the applicant’s conduct. At that time he suggested to the respondent that the applicant should not be allowed to drive the truck. There was no evidence given to corroborate the allegation contained in the respondent’s letter that the applicant “yelled out and abused the police”. Nor was there any evidence to support the assertion that the police told the respondent that the applicant was a danger to the public and “may have killed someone”.
More importantly, so far as the proofs the respondent is required to meet on valid reason are concerned, at no time did Lilley suggest that he gave the applicant any formal warning about the incident; much less one that informed the applicant that he was guilty of gross misconduct and that his employment was then in jeopardy. On the contrary, Lilley’s evidence was confined to an assertion that he spoke to the applicant about the complaints received by King at the Kings Way worksite on the evening after the complaints had been received. In that conversation he told the applicant that, with the company’s name on the vehicle, when driving the applicant was an ambassador for the company and the company could not afford the bad publicity his conduct attracted. Lilley told the Court that the applicant responded by saying he had not blown the air horn for very long. After discussion of what Lilley referred to as the “evidence”, Lilley said that he told the applicant his conduct was unacceptable and suggested to him that in future he park the vehicle and wait for Peter or look for his number in the phone book.
None of the abovementioned evidence in any way supports a conclusion that if the discussions occurred in the circumstances alleged, there was any warning or any suggestion that the applicant’s employment was in jeopardy as at approximately 10 July 1996.
The applicant contends that the discussion referred to by Lilley did not occur until some ten days after the termination when he met with Lilley and they had a broad-reaching discussion about the events preceding his termination. Lilley agrees that there was the further meeting following termination in which this incident was raised but still asserts that he had the earlier meeting prior to termination concerning the air horn incident.
Given the contact made by Detective Senior Constable Fry on the day of the incident, I take the view that it is more probable than not that Lilley did raise the issue with the applicant, however, I am not satisfied that there was meaningful discussion of the incident until after termination. The incident appears to have assumed greater significance, and was only characterised as gross misconduct, after the termination occurred in connection with other matters. Of itself, the complaint and the circumstances giving rise to the complaint would properly attract counselling and disciplinary procedures yet, because of the applicant’s excellent work record, would not have provided a sound basis for justifying a summary termination.
The allegations of insubordination/refusal to carry out company instructions and neglect of duty
King gave evidence that at the end of June 1996 the applicant’s landlady rang to complain about the applicant’s truck parked outside her property as well as his use of the water hose on the truck. He told the Court that as a consequence he contacted the applicant and asked him to bring the truck back to the depot. The applicant’s response, according to King, was “not to worry about it” and he did return the truck. So far as King was concerned to his knowledge the truck remained at the depot thereafter. He was not cross-examined by the applicant on this matter.
In his own evidence the applicant explained that his landlady had expressed concern about the cost to her of him using a quantity of water to wash the vehicle. He acknowledged that he was instructed by King to return the vehicle which he says he did. However, that instruction he alleges was subject to him having his vehicle repaired and returning the truck after he collected his own vehicle. It appears from the applicant’s answers to questions put to him in cross-examination that he took the view that the incident with his landlady occurred in early July during the ten days or so after he had commenced night shift on the Kings Way project and, therefore, he had permission to have his vehicle at his home on 17 July 1997 when King attended his home looking for the applicant with a view to terminating his employment. The letter from the respondent to the applicant puts the date of the complaint from the landlady at 16 June 1996. King, as I have already noted, says the end of June 1996 and the applicant asserts that it was in the week prior to termination which puts it in early to mid July 1996. The letter contains numerous factual errors and King’s evidence was that the applicant complied with the instruction to return the vehicle. However, he did contradict this evidence by then saying that the truck parked at the applicant’s premises on 17 July, when he attended looking for the applicant, should not have been there.
It was my understanding of the respondent’s evidence that the operators were allowed to take their trucks home, however, because of the complaint made by the landlady the arrangement was for the applicant to return the truck to the depot. Relying on the evidence given and, in particular, the inconsistency in King’s evidence, I am not satisfied that there is proper evidence of the applicant ignoring the instruction to return the vehicle when he was asked to do so.
Lilley told the Court that on the evening preceding the termination of the applicant’s employment, the applicant telephoned him to express his concern over the rate of pay being paid to him in respect to the night shift hours worked on the King Way project, which project had commenced nearly two weeks earlier. The applicant’s concern was that he should be paid double time. It was contended by Lilley that their discussion was confined to matters to do with the rates of pay payable, with Lilley informing the applicant that because he worked more than four shifts in succession he was paid the shift allowance at the rate of thirty per cent which rate exceeds the applicable award rate of fifteen per cent for a shift allowance.
According to Lilley the applicant accepted the answers given by him and Lilley informed the applicant that he would speak further to him about this matter the next day when he attended the Kings Way site. Lilley did not give evidence of any statements by the applicant to the effect that he would not be attending work on the following day or that he would not enter the Kings Way underground pipes being cleared at the Kings Way project unless he was paid double time.
The applicant claims that on the evening preceding his last shift he and Lilley discussed some of his personal circumstances to do with his family and finances as well as the question of his entitlement to double time. This evidence was not disputed by Lilley. However, the applicant also alleges that they discussed a further issue relating to whether the applicant was prepared to enter the drains when he did not have what he referred to as a confined spaces entry ticket or any vaccinations against hepatitis or what he described as distemper.
The applicant denied any full explanation in response to his query about his entitlement to double time, pointing out that he had arranged to meet with Lilley the next day to discuss this matter but was terminated before the meeting took place. As far as he was concerned he did not receive any explanation to satisfy him that he was not entitled to the payments he alleged he was missing out on.
As a result of his discussion with Lilley the applicant attended work for his shift and operated his truck at his worksite, remaining in the cabin of the truck throughout the course of the evening. At the end of his shift he drove the truck in the “wrong” direction in the two lanes of Kings Way closed to traffic by the respondent to perform its works, and emptied the water from his truck into a drain located at the intersection. The emptying of the water in the truck was done in accordance with the instructions received from his supervisor and, he says, in accordance with the procedure he had adopted on each night shift since the drainage works had commenced.
Hannah was the supervisor of the last shift worked by the applicant at the Kings Way site. He told the Court that on the shift for 15 to 16 July 1996 the applicant worked very well but had, nevertheless, let him know that the applicant was not happy about the money he was receiving and did not believe that he was being paid at the correct rate. He also made comments referring to Lilley as “an arsehole”. On the last shift worked by the applicant Hannah told the Court that the applicant set up his truck and remained in the cabin. He was unable to say whether the applicant was asleep in the cabin and because Hannah was working below the ground for most of the shift, he did not observe whether the applicant got out of and operated the truck during the course of the evening. At approximately 4.30am Hannah left the pipes and instructed the applicant to empty out his truck, which instruction the applicant followed. Hannah received a report from another employee who did not given evidence, to the effect that the applicant drove in the wrong direction along Kings Way, spun the truck around and opened the back of the truck spilling silt and mud over the Cavanagh Street intersection.
Other than the matters I have already referred to, the applicant denied the lastmentioned allegation pointing out that there were two interceptor bins into which the silt and mud were directed and only water was discharged from his vehicle when he emptied it at the intersection. At hearing the respondent did not rely on these allegations as reasons for termination. However, the significance of the allegations lies in the fact that such allegations appear to have been known to the respondent along with other allegations relied on by Lilley who was responsible for instructing King to terminate the applicant’s employment on 17 July 1996. At no stage was the applicant’s response to these particular allegations ever sought.
Hannah’s evidence did not establish a factual basis for saying that the applicant was instructed to enter the underground pipes to work on his last shift and that he had refused a lawful and reasonable instruction to do so.
In his cross examination the applicant conceded that on previous shifts he had worked in the pipes without a confined spaces entry ticket. He also appeared to concede there was a team of six men working on the pipes with three underground and, apart from a camera surveilling the pipes, the other three working above ground had some role in ensuring the safety of those in the pipes.
On the evidence I am not satisfied that during the conversation he had with Lilley on the previous evening, the applicant refused to enter the underground pipes or said that he would not attend for work the following day unless he was paid double time. If that was so and safety was an issue, it is remarkable that Lilley as Victorian manager took no steps to ensure that there was sufficient above ground man power to watch over the safety of the men in the pipes once he knew of the applicant’s intentions. The most likely scenario is that they did in their conversation cover at least the issue about underpayment and there was an arrangement to meet and discuss this issue more fully on the next day. In the meantime, the applicant determined not to work underground, nevertheless there was no evidence given by the respondent’s witnesses to indicate that any lawful and reasonable direction was given to the applicant to enter the pipes and such direction was refused.
On the question of any requirement to have a confined spaces entry ticket, I am not satisfied that the respondent, who carries at least the evidentiary burden of showing that any instruction given is a lawful one, provided any persuasive proof that it could lawfully and reasonably instruct an employee to enter the underground pipes without any training in or possession of a confined spaces entry ticket as well as appropriate vaccinations against various diseases an employee may be exposed to in a specific working environment.
There was no evidence given to indicate that the safety of those working in the underground pipes was compromised by the applicant operating his truck and remaining in its cabin during the shift. I do accept, however, that the thrust of the evidence from both the respondent and the applicant was to the effect that those in the team of men above ground played a role in preserving the safety of those below the ground. Having said that, there was no evidence given to indicate what safety duty or duties the applicant failed to perform whilst he was in his truck cabin with the truck operating as required.
On the morning following the applicant’s last shift Lilley was informed by a supervisor, Greg Harkness, who did not give evidence, that he, Harkness, had been informed by Hannah that the applicant had refused to work and had spent the night in the truck asleep. Lilley rang Hannah at home and was told that the applicant had been asleep and had not entered the drains at all. It was Lilley’s evidence that he was concerned about safety matters and as a result telephoned King between approximately 8.30 am and 9.00am, explained what had occurred and told King that he could not tolerate this behaviour. He then instructed King to “... look at termination and ask him (the applicant) to come and talk about it”.
King’s evidence was that when Lilley telephoned him he informed him that there were problems with the Kings Way job involving the applicant sleeping in the truck cabin and went on to say that they would have to terminate the applicant’s employment because of these problems and the recent incident concerning the sounding of the air horn of the truck.
In accordance with instructions given to him King attempted without success to telephone the applicant at his home. I accept the applicant’s evidence that he did not then have a telephone at home, although he still had a mobile phone the accounts for which King had declined to cover where the accounts related to the use of the phone during working hours. In any event, it was common ground that King attended the applicant’s home because he said he could not contact him by telephone. King says he could not raise the applicant and saw the truck parked out front. He used his spare keys to drive the truck back to the depot but before doing so he put a card underneath the applicant’s door asking him to ring urgently.
The applicant subsequently found the card and rang from a public telephone booth. I am satisfied that when he called he was not then aware of what news awaited him. There is conflict between the evidence of the applicant and King on the order and substance of their last conversation. King claims that he initially asked the applicant to attend the depot. The applicant queried this and was told that King wanted to talk to him. At that point in the conversation King alleges that the applicant said “you’re going to sack me”. To this statement King alleges that he replied “no” after which the applicant repeated the words “you’re going to sack me”. In response King alleges that he said “yes I am” following which statement the applicant became very agitated and abusive saying that he was going to “rip Ian Lilley’s fucking head off and jam it up his arse”. There was also a statement from the applicant that he would go to jail for what he was going to do. King told the Court that he then asked the applicant to go into the office to discuss the matter and informed the applicant that he would be in the office until midday. I am unable to accept that this lastmentioned invitation was extended to the applicant in view of King’s further evidence that he went to the Mulgrave office at about 11.30am.
Lilley’s evidence indicates that he was telephoned by King on a number of occasions during the morning and, amongst other things, was told that the applicant had gone into a frenzy during the telephone conversation and had made threats against Lilley. Whether or not threats were made against Lilley personally or anyone else, it is clear that the applicant responded angrily and aggressively to the news that he was to be terminated.
One question to be answered is whether the applicant was given any or any real opportunity to deal with the allegations made against him, which allegations were relied on to terminate him? He says that he did not have any discussion about the air horn incident before he was terminated, however, as I have already indicated I am inclined to the view that it is more probable than not that this issue was raised with him by Lilley shortly after the incident occurred at least in a cursory way.
It is apparent from Lilley’s evidence that the decision to terminate was made and King was instructed to implement that decision before any discussions were entered into. There was no discussion between Lilley and King about seeking any explanation from the applicant concerning any of the complaints made against him. In cross-examination it was put to King that he commenced the telephone conversation with the applicant by saying, in effect, that he had been instructed to terminate the applicant’s employment. King agreed that this was the instruction he had received but denied that these were the first words spoken. In my view because of the instructions given to him, it is probable that very early in the conversation King let the applicant know what his instructions were and, because the decision had already been taken, King was not then pursuing any meeting to discuss the applicant’s version of any allegations concerning his conduct or performance. If there was an invitation to attend the depot to discuss the matter, it was to inform him that he was being terminated and to put into effect the termination.
On any view of the evidence, the decision having been made, there was no proper opportunity given to the applicant to put his case with regard to the issues that precipitated the decision to summarily terminate the applicant’s employment.
FINDINGS
As can be seen from my analysis of the evidence given by the respondent in seeking to establish that the decision to terminate was a sound, defensible or well founded one, it has not called evidence which generally discharges its burden of proof, particularly in relation to the allegations of serious misconduct. In making this finding I am mindful of the admissions made by the applicant concerning the air horn incident and his intentions and actions in not working underground on his last shift when he had previously done so without complaint. The provisions of the award applicable to the applicant’s employment suggest that the respondent’s contention that it was, at the relevant time, paying the applicant in accordance with the award provisions may be a justifiable one. Had the applicant been satisfied by the matters raised with Lilley in their final conversation before his last shift, I am satisfied that he would have continued to work underground as he had done in earlier shifts.
On the evidence before the Court I am not satisfied that there is proof of serious misconduct such that it justified summary dismissal. Nevertheless, I am satisfied that the applicant’s pranks and defiant conduct in the week or so before termination led to the difficulties he encountered with his employer on 17 July 1996.
Generally speaking, when an employer fails to establish the facts upon which it bases its reasons for termination, an employee may seek reinstatement. In this case the applicant does seek reinstatement having remained out of permanent employment after the termination until October 1996 when he commenced casual employment averaging two days’ work per week.
The decision to grant the remedy of reinstatement is qualified by two considerations. The first is that I must conclude that reinstatement is appropriate in all the circumstances of the case and, secondly, where the remedy of reinstatement is sought, it is open to a party to prove that reinstatement is impracticable.
This is a case where in all the circumstances of the case I am persuaded that reinstatement is not an appropriate remedy. The applicant does demonstrate an inability to contain his anger when he rightly or wrongly perceives an injustice in the workplace. He made it abundantly clear to the Court that he has no respect or regard for King who remains employed by the respondent but no longer works at its Geelong branch. He also demonstrated a strong personal antipathy towards Lilley who is the Victorian state manager because of the matters raised at hearing. Even after hearing all the evidence he did not accept that there was a case for saying that he was wrong in concluding that he had been underpaid for the shifts worked until 17 July 1996. I must be satisfied that if the employee is reinstated there is a prospect of a productive and proper working relationship. In my view the respondent’s concerns about the threats made against other employees and the applicant’s aggressive responses when any confrontation occurs, are sound and rational concerns which militate against reinstatement as a remedy.
The respondent acted precipitously in terminating the applicant’s employment and, because of the way it effected termination, it contributed to his sense of injustice and the anger directed towards individuals involved in the termination. In saying this I am not suggesting that it was in any way appropriate for the applicant to make any threats against individuals when advised of the decision to terminate.
The fact that the applicant did not accept, even at hearing, that there was a basis for saying that he was properly paid up until the date of termination, as well as his aggressive behaviour once confronted, suggest to me that, arguably his employment may not have continued in the long term; not because of any lack of excellence in the performance of his duties but because of this behaviour fuelled by the failure of his relationship with his fiancee, the loss of the custody of his children and the financial losses he carried from his failed business. In this climate I am not satisfied that the applicant had at termination long term prospects in his employment with the respondent or any long term prospect of maintaining his relationship with his managers. My conclusion is that this is a case where it is appropriate to make an order for compensation. Bearing the abovementioned considerations in mind, the amount of compensation I propose to order payment of is confined to three months’ net average pay totalling $7,360.60. This sum includes the one week’s damages in lieu of notice, otherwise payable pursuant to section 170DB of the Act on termination. The parties were not able to tell the Court what the gross figures were for the relevant period. This being so I propose to make a further order that any tax assessed by the Commissioner of Taxation and payable pursuant to the provisions of the Income Tax Assessment Act 1936 in respect to the sum of compensation awarded by the Court to the applicant be paid by the respondent to the Commissioner for Taxation.
MINUTES OF ORDERS
THE COURT DECLARES THAT:
The termination of the applicant’s employment by the respondent on 17 July 1996 contravened the provisions of the Workplace Relations Act 1996.
AND THE COURT ORDERS THAT:
Within 21 days of the date of making these orders the respondent pay to the applicant the sum of $7360.60 net.
Any tax assessed by the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and payable in respect to the sum of compensation awarded by the Court to the applicant be paid by the respondent to the Commissioner for Taxation.
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 eighteen (18) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 7 March 1997
Applicant in Person.
Solicitors for the Respondent: Purves Clarke Richards
Counsel for the Respondent: Mr B. Lacy
Date of hearing: 3 March 1997
Date of judgment: 7 March 1997
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