Matheson v Australia Meat Holdings Pty Ltd
[1996] IRCA 205
•29 Feb 1996
DECISION NO: 205/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - VALID REASON - HARSH, UNJUST OR UNREASONABLE - PROCEDURAL FAIRNESS - REMEDY
INDUSTRIAL RELATIONS ACT 1988 , s170EA, ss170DE(1), ss170DE(2), s170DC
MICHAEL RONALD MATHESON -v- AUSTRALIA MEAT HOLDINGS PTY LTD
No. QI 95/1308
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 FEBRUARY 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1308
QUEENSLAND DISTRICT REGISTRY
BETWEEN: MICHAEL RONALD MATHESON
Applicant
AND: AUSTRALIA MEAT HOLDINGS PTY LTD
MINUTE OF ORDERS
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 FEBRUARY 1996
THE COURT ORDERS THAT:
The time for the making of the application is extended to 11 September 1995.
The application is allowed.
The respondent is ordered to pay the sum of $1000 to the applicant within 14 days of this order.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI95/1308 QUEENSLAND DISTRICT REGISTRY
BETWEEN: MICHAEL RONALD MATHESON
Applicant
AND: AUSTRALIA MEAT HOLDINGS PTY LTD
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 FEBRUARY 1996
REASONS FOR JUDGMENT
Background
The applicant, now aged 27, commenced work at the respondent's abattoir at Nerimbera, Rockhampton, as a labourer in mid-1990. After about 12 months, he became a butcher.
The remarks which follow, until otherwise indicated, are the applicant's version of relevant events. His duties as a butcher were, initially, to mark and saw briskets, and assist the hide stripper. The applicant's case was that about a month before mid-May 1995 his foreman, Mr Goodwin, gave him an additional task, which was to free the windpipes of large beasts. He claimed he did not have enough time to perform this additional task, and to sterilise his implements properly. The applicant complained to Mr Goodwin who said he must carry out the additional task. He also complained to his union representative, a Mr McPhee, who he understood took the matter up with the management of the respondent. In the week before 16 May 1995, Mr Goodwin insisted he free the windpipes of all beasts.
On the morning of 16 May 1995, Mr Goodwin asked the applicant if he were freeing the windpipes as required. The applicant said he was doing the ones he could. Mr Goodwin replied that he had to free all of the large beasts' windpipes. The applicant said he had not enough time. The assistant manager, a Mr Burns, appeared and spoke to Mr Goodwin. Mr Burns then watched the applicant work, and asked him if he were going to do the windpipes. The applicant said he had not time. According to the applicant, Mr Burns then said, "That's it, you're finished," and then stopped the chain carrying the beasts. The applicant took his knives and apron off, and went to Mr Burns' office. He was joined there by a union representative. Mr Burns said that he had to terminate the applicant for refusing a foreman's instruction. Shortly after, the applicant left the respondent's premises.
Mr McPhee, the central district secretary of the applicant's union, gave evidence that following the applicant's complaint to him, he spoke to Mr Burns on 12 May 1995. Mr Burns said he would look into it. The next day Mr Burns told him that the applicant was walking too far in the performance of his work, and that was why he (the applicant) did not have enough time to carry out his work. Mr McPhee disagreed and told Mr Burns he thought there should be an extra man on the hide stripper. Mr McPhee was left with the expectation that Mr Burns would get back to him if there was still a problem. He thought Mr Burns was going to rectify the problem.
On the other hand, Mr Burns gave evidence that in his opinion the applicant had ample time to free the windpipes of large beasts if he changed his work method. He denied there was any under-manning on the kill floor. Hygiene was the reason for the necessity to free the windpipes, not just of large, but all beasts. Export requirements meant there had to be zero contaminants on carcasses in the chiller. Windpipes left in place could leave contaminants in the form of ingestor.
It appeared to be common ground as between applicant and respondent that those working on what was known as the front-out table ordinarily removed beasts' windpipes. It was found, however, that in the case of large beasts the removal of their windpipes occasioned too much bending on the part of the front-out staff. Large beasts were inclined to hang over the front-out table - hence the requirement of the applicant that in the case of large beasts, he removed their windpipes before those beasts got to the front-out table.
A number of the applicant's former workmates gave evidence, including some who had done the tasks required of the applicant since he ceased with the respondent. Generally, the tenor of their evidence was that while the work was hard, they had enough time to perform it, and were not
under-manned.
Mr Burns also gave evidence that when he asked the applicant on the morning of 16 May 1995 if he were going to free the windpipes, the applicant looked at the floor, removed his knives and apron and walked off the floor. Mr Burns took this to be a stoppage of work on the applicant's part. He denied he dismissed the applicant there and then by saying, "That's it, you're finished". He said that he told the applicant in his office that he was dismissing him for refusing to carry out an instruction.
There is evidence also of friction between Mr Goodwin and the applicant, and alleged racist remarks directed to the applicant by Mr Goodwin and by another employee, Mr Walsh.
Mr Goodwin denied making those remarks. He also said that it was, on five or six occasions, in the two or three weeks prior to 16 May 1995, that he instructed the applicant to free the windpipes of large beasts. He denied telling the applicant to free the windpipes of all beasts.
There is evidence also about the way in which tally and manning figures were arrived at for the kill floor.
I have not purported to deal with all the evidence; only what I consider to be the most relevant.
Issues
The respondent contended that the appellant stopped work in breach of a settlement of disputes procedure clause contained in the applicable award, namely the Australia Meat Holdings Pty Limited - Rockhampton Abattoir - Interim Award 1995. I did not understand it to contend that there was no termination of the applicant's employment at the initiative of his employer. I find that there was.
Ss 170DE(1)
In the circumstances, the question is whether or not the respondent had a valid reason or reasons connected with the applicant's capacity or conduct, or based on its operational requirements to terminate his employment. I am satisfied that it did. I found the evidence led by the applicant to prove under-manning unconvincing. I was more taken with the views of the applicant's fellow employees about the reasonableness of the set of tasks requested of the applicant by his superiors. I am satisfied that it was important to the proper operational requirements of the respondent that the windpipes of large beasts were freed by someone in the applicant's position. The applicant had received numerous instructions to carry out this procedure. Mr McPhee, the union official, relied on an interpretation of clause 51 of the award in his support for the notion that the kill floor was, at relevant times, under-manned. I am satisfied, however, that at the material time, the chain (carrying the beasts) was operating at a slower speed allowing the applicant more time to perform his tasks, and obviating the need for greater manning. Also, Mr McPhee did not personally assess the actual work situation of the applicant.
Ss 170DE(2)
Was the termination harsh, unjust or unreasonable? I am not satisfied that it was, in light of the findings I have already made.
S 170DC
It seems to me that on any view of the evidence, the applicant was not, at a time proximate to termination, given an opportunity to defend himself against any allegations related to his conduct or performance. While I preferred Mr Burns' evidence about what occurred on the floor and later in his office on 16 May 1995, all that happened in substance was that he told the applicant he was dismissing him for refusing to carry out his instruction. Mr Burns agreed that there was no discussion about the applicant's alleged problems with carrying out all his tasks. The applicant was not asked to give his side of events at all. In truth, he was not given the opportunity to defend himself against any allegation. Para 170DC(a) of the Act was breached.
S 170DB
The respondent submitted that the effect of reg 30BC(1) of the Industrial Relations Regulations was that the applicant was one of those specified employees excluded from the operation of S170DB of the Act. Its submission was that the applicant was a daily hire employee performing work in the meat industry in, or in connection with, the slaughter of livestock. While the evidence was not altogether clear about the applicant's status at the material time, I am prepared to find that it was within this description of excluded employees, such that the notice provisions of S170DB are inapplicable to him.
Remedy
What is the consequence of the breach I have found proved? To my mind, the applicant was fixed, unjustifiably, in the attitude he had adopted about his inability to perform the tasks allotted to him. Equally, as the respondent was justified in its attitude that its requirements of the applicant were not unreasonable, the outcome of the stand-off is unlikely to have been any different had the respondent accorded the applicant procedural fairness. Some further time, albeit short, may have elapsed before the applicant's intransigence would have resulted in the lawful termination of his employment by the respondent.
I conclude that reinstatement is impracticable, being inappropriate in the circumstances of this case where I have found that the likely consequence of the lack of procedural fairness is that some further short time only may have elapsed before a lawful termination.
Turning to the question of compensation, the parties agreed at trial that the respondent's plant shut down operations from 19 May to 25 June 1995, and again from 29 June to 23 July 1995. In those periods, the applicant would not, in any event, have been in receipt of remuneration from the respondent. The applicant's average weekly earnings with the respondent were $476.35 gross between 15 July 1994 and 12 May 1995.
I proceed on the basis that had the applicant not been terminated on 16 May 1995, the issue of his failure to obey instructions would not have been lawfully resolved until after the respondent's plant recommenced operations in late July 1995. The issue would, however, have been resolved soon after. I fix compensation in the sum of $1000, arrived at by allowing the applicant in all the equivalent of a little more than two weeks pay, spanning the short period between 16 May 1995 and the plant's shut down, and a further two weeks after the plant started up again in late July 1995.
S 170DF
I reject the submission on behalf of the applicant that his employment was terminated for the reason of race. While I am suspicious that derogatory remarks were from time to time made to him by fellow employees, I am not satisfied the respondent had any role in the making of those remarks.
Extension of Time
Proceedings were not filed in this Court until 11 September 1995. It was, however, common ground that the applicant's legal representatives had mistakenly filed proceedings with the Queensland Industrial Relations Commission in different script, the respondent was aware at all material times that the applicant was disputing the termination of his employment, and the respondent had suffered no prejudice in consequence of the time of filing in this Court. If it be necessary to do so, I extend the time for the making of his application to 11 September 1995, the actual date of filing.
Orders
The time for the making of the application is extended to 11 September 1995.
The application is allowed.
The respondent is ordered to pay the sum of $1000 to the applicant within 14 days of this order.
I certify that this and the preceding FIVE (5) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 29 February 1996
Appearing for the Applicant: Mr Grant
Solicitors for the Applicant: Grant & Simpson
Appearing for the Respondent: Mr Crow
Dates of hearing: 6, 7, & 8 February 1996
Date of judgment: 29 February 1996
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