Melide v Rethmann
[1997] IRCA 102
•16 Jan 1997
DECISION NO:102/97
CATCHWORDS
INDUSTRIAL LAW
Wilson -v- IPC (IRCA Moore J, 67 IR 302)
APESMA & Carl Sparre -v- David Graphics Pty Limited (Unreported Wilcox CJ 12 July 1995, Decision Number 410/95)
Liddell -v- Lembke (1 IRCA 466)
Melide -v- Rethmann
NI 1996 of 1996
Before: MCILWAINE JR
Place: SYDNEY
Date/s of hearing: 15-16 JANUARY 1997
Date of judgment: 16 JANUARY 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 1996 of 1996
BETWEEN:
Reuben Edward Melide
Applicant
AND
Rethmann Australia Environmental Services Pty Limited
ACN 002 429 781
Respondent
BEFORE: MCILWAINE JR
PLACE: SYDNEY
DATE: 16 JANUARY 1997
MINUTES OF ORDERS
THE COURT FINDS THAT:
The respondent did not have a valid reason for the termination of the employment of the Applicant on 24 July 1996.
The Respondent has contravened Section 170DF(1)(c) on the grounds
that the Applicant was an unfinancial member of the Union prior to the
termination of his Employment.
The Respondent has contravened Section 170DF(1)(f) on the grounds
of Race.
The Respondent has contravened Section 170DB in that wages for two
weeks should be paid.
It is impractical to reinstate the Applicant in his former position with the
Respondent.
It is appropriate to award compensation to the Applicant in the sum of
Three Thousand Six Hundred and Sixty Dollars and Sixteen Cents
($3660.16).
THE COURT ORDERS THAT:
The Respondent to pay to the Applicant within seven days of the date of
these Orders the amount of Nine Hundred and Fifteen Dollars and Four
Cents ($915.04).
Any sum paid within seven days of the date of these Orders to the
Australian Taxation Office, on account of the Applicant in respect of the
sum ordered in paragraph 1 shall be pro tanto satisfaction of the
Respondent's obligation under Order 1.
The Respondent to pay to the Applicant within twenty-one days of the
date of these Orders the amount of Three Thousand Six Hundred and
Sixty Dollars and Sixteen Cents ($3660.16).
Any sum paid within twenty one days of the date of these Orders to the
Australian Taxation Office, on account of the Applicant in respect of the
sum ordered in paragraph 3 shall be pro tanto satisfaction of the
Respondent's obligation under Order 3.
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
NEW SOUTH WALES DISTRICT REGISTRY
NI 1996 of 1996
BETWEEN:
Reuben Edward Melide
Applicant
AND
Rethmann Australia Environmental Services Pty Limited
ACN 002 429 781
Respondent
BEFORE: MCILWAINE JR
PLACE: SYDNEY
DATE: 16 JANUARY 1997
REASONS FOR DECISION
Delivered ex tempore - revised from the transcript
This is an application by Reuben Edward Melide claiming unlawful termination of his employment by his former employer Rethmann Australia Environmental Services Pty Limited under what was then Division 3 Part VIA of the Industrial Relations Act 1988 and which on 25 November 1996 became known as the Workplace Relations Act 1996 ("the Act").
The Applicant, now 25 years of age, in his claim records the work performed for his employer as: "domestic garbage collector". The Applicant started work with the Respondent on 11 July 1994, the last day he actually worked for the Respondent was 23 July 1996. The remedy originally sought by the Applicant in his application was compensation. At the commencement of the hearing Miss Keys, counsel for the Applicant sought leave to amend the application to include a claim for reinstatement. This was not opposed by Mr Chadwick, industrial advocate for the Respondent, and the amendment was allowed.
I note that the correct name of the Respondent is Rethmann Australia Environmental Services Pty Limited (ACN No 002 429 781) and I direct that the court records show that name although the Applicant in his application describes the Respondent as “Rethmann Waste Management”. It may be that there is a business name, however I am assured by both counsel and the advocate that there is no necessity for me to take account of that issue in this judgment.
The application was received by the Australian Industrial Relations Commission on 8 July 1996. Presumably on the basis that the employment separation certificate was written notice of termination, an application was made for an extension of time to lodge the application. I have a certificate issued by Senior Deputy President Marsh of the Industrial Relations Commission dated 23 November 1995 in the following form.
“In accordance with subsection 170ED of the Industrial Relations Act 1988 the Commission hereby certifies:
(i) that it has been unable to settle this matter by conciliation within a reasonable period and
(ii) that the parties in this matter having been invited to elect to have the matter dealt with by consent arbitration, have not so elected.
Under paragraph 170EA(3)(b) of the Act the Commission allows the lodgment of the application to be extended until 8 August 1996.”
There was no objection to the certificate made by either party, I therefore find the matter as properly before the court pursuant to section 170ED(2) of the Act.
The Applicant gave evidence that he emptied garbage bins as a casual domestic runner commencing at the employer's yard at 4.30 am on a Monday to Friday basis. Up to 15 people would turn up to work. The difference is not clear to me but it appears that there were a pool of casuals as well as a number of permanent employees. The Applicant regularly appeared at 4.30 am at the yard. It appears to me that he was a good worker during the last two years of his employment. It was hard running work often in 40 degree heat, and doing up to 16 kilometres a day. The Applicant maintained that in the early stages of his employment he was getting work on a five days per week basis. The employment records for this particular period, that is the July 1994 to July 1995, were not apparently available and therefore his claim is unable to be contested by the employer with written records. He suggests that during the last six months of his employment on average, he was reduced to a four days a week basis.
It was suggested that during about August/September 1994 he brought his fears about a "co-worker" to the attention of management, by an oral report to Mr Maddison. In this decision I will simply refer to as "N". He was not called to give evidence and apart from the allegations made by the applicant there is no other evidence that would enable me to make any finding in specific terms against "N”. I presume that he is still in employment with the Respondent.
The allegation Mr Melide made was that the driver had nearly collided with two cars and that he had been drinking whilst driving the vehicle. He maintained that as a result of his report nothing happened to the driver, that was apparent to him. Thereafter he was rotated to a different truck every day and he suggests that five months later his allegation was brought to the attention of Kevin Gray in January 1996. This suggestion was not put to Mr Gray in cross-examination so I am unable to make a determination on that issue. It was also suggested that Mr Gray was a personal friend of “N” and did not act for this reason.
His evidence was that on Christmas Day 1995 he was approached by “N” who called him a lagger. “N” then came towards to him and said very close to his face that he should not be in the yard. There was an exchange of words and a small scuffle. It was suggested by the Applicant that “N” was intoxicated, swearing at him and was opening the door of the truck so as to strike the Applicant with it. The Applicant admits that he pushed “N” against the truck and told him to stop calling him names. He used the following phrase in evidence: "I told him to stop calling me names or I would break his jaw".
The scuffle was reported by “N” and according to Mr Maddison's evidence it was also noticed by a couple of other employees. However it appears that none of this other evidence was discussed with the Applicant. On this issue it appears that the evidence of the Applicant and Mr Maddison coincide to a certain degree. Both men were called into the office and told that fighting is not permitted. The Applicant was then told to shake hands and both were to forget their differences.
This result was not satisfactory to the Applicant. He continued to harbour his concern that his previous complaint was not being properly dealt nor had this one in relation to the assault. To some extent he was justified in maintaining that concern. However it appears that he may have allowed this to become an overriding issue although his disquiet about the drink driving allegation was justified.
Thereafter he felt that his work days were reduced. He was not able to give the court specifics. In addition, he also asked to be transferred to another driver but nothing happened with this request to accompany a man called Roy who apparently got on well with Mr Melide. This request occurred around about May 1996. Unfortunately Mr Maddison was not cross-examined on this issue so I am unable to make a specific finding, I accept that this was the employee who the Applicant sought to work with on 24 July 1996. I believe there is some merit in the claim of the Applicant on this issue.
The other issue that became apparent was that the Applicant gave evidence that he was a member of the union. He first described it as the Miscellaneous Workers Union but this is not correct. It would have been the Transport Workers Union. Later in subsequent evidence he acknowledged his membership of that union and produced evidence of payment of union fees. This is supported by two receipts contained in exhibit 1 which was issued on 22 February 1995 by the union delegate, Mr P. Reithkerk. It was issued apparently from the Transport Workers Union, New South Wales Branch, and the receipt was issued for the sum of $50 and discloses the Applicant’s address.
On 12 May 1995, again, a receipt was issued by Mr Peter Reithkerk of the Transport Workers Union. He issued a receipt for the sum of $145 and the document carries the endorsement that the union membership was paid in full. However, for reasons that I do not understand, apart from the Applicant’s suggestion that he could not afford to pay his union fees, as he was getting married, he did not continue his membership of the union. He is entitled to do so under the legislation, however, in a yard such as this where there is constant heavy physical work and large numbers of the employees are members of the union, it takes some courage to adopt that attitude.
In any event, his failure to remain financial became an issue in the workplace. I have no doubt that it became an issue between him and the union delegate because he would not pay the fees. I only have the Applicant’s evidence on this issue. Mr Peter Reithkerk is apparently no longer an employee of the firm. This fact alone does not excuse, in my view, the Respondent from making some attempt to have Mr Reithkerk give evidence. There are procedures of the court available to ensure that Mr Reithkerk gave evidence. Apart from the statement from the Bar table that he had ceased to be an employee, there was no evidence or explanation given to the court as to why he was not present. Accordingly, I believe that I am entitled in those circumstances to accept the Applicant’s version of events in relation to the issues in which Mr Reithkerk is involved.
The Applicant gave evidence that there was a union meeting at which the members were asked to vote on the question that non-members of the union would be put on last. Mr Peter Reithkerk called a meeting of the union at about 4.15 am one morning before work and a motion was put that non-members would be put on last. Originally there was to be a motion that non-members not be employed, however, that was varied to a resolution which was apparently carried that non-members of the union would be put on last.
The Applicant gave evidence that his name was mentioned specifically and that words such as "fucking casuals should be sent home" were used at the meeting. It was suggested that Mr Maddison was, although not part of the meeting, close enough to hear what was going on. However, this was not put to Mr Maddison in specific terms, and therefore I do not propose to make any finding adverse to Mr Maddison's evidence on that issue.
The Applicant gave evidence that he went to the union when this dispute arose to pay $20 and he ran into the Area Supervisor at the Administration Office. He made a complaint about Mr Reithkerk's attitude and the way in which he was following up these matters. The Area Supervisor told him that he fully supported the action which was being taken by Mr Reithkerk.
He thereafter paid $20 to the union, the receipt for which is now unable to be produced, although he showed it to Mr Maddison. His employment continued along at that pace without further difficulties until an occurrence on 23 July 1996 when the Applicant went to pick up his pay slip, (Exhibit 2). The pay slips apparently were not handed out each pay day. I suppose that is a little difficult to bring an office worker in at 4.30 in the morning to hand out the document. Moreover, trucks would come back at different times, so the device which was used by the company was to place all the pay slips in a lunch box and to allow people to pick them up at their convenience.
There is no evidence given by the Respondent as to whether the pay slips were in a sealed envelope which I would have thought ought to be the situation. I infer from the evidence of the Applicant that this was not the case. The Applicant, did not need to pick up his pay slips regularly because his money was paid into his bank account. When he did pick up the pay slip he found written on the back in fairly large letters, the words "Pay Up Wog."
I asked him some questions about the identification of the writing. He testified to me that it was not his writing, and I accept his evidence on that issue. He gave some evidence to me as to how he identifies the writing on the document as being Mr Reithkerk. I have made a comparison with the writing on the receipts. There are a number of the letter P written on the document such as in Mount Pleasant, in the first and second receipts issued by the union. In my view, on the balance of probabilities, I could not make any finding that the "Pay Up Wog" was written by the union delegate. In fact, the Applicant gives evidence that the former union delegate denied writing on it as does Mr Maddison.
I have no evidence from the former union delegate, so I cannot make any concluded view except that I am unable to make a finding based on the evidence before me - that is looking carefully at the receipts and the "Pay Up Wog" written on the back of the pay slip that those words were written by the person who signed those receipts. It may be that an expert may take a different view of that issue. I accept the evidence of the Applicant that he did not write those words. Mr Maddison said he did not do it and I accept his denial, nevertheless somebody did it for a purpose which would give the maximum amount of offence to the Applicant, he being an Australian-born person.
The Applicant testified that he had been on Roy's truck on Tuesday 23 July 1994. There was no real explanation given in the Applicant’s evidence as to why he thought he could start from his home. I believe that he would be aware of the policy of the company that you only got a start from the yard. There was no prior consultation with Mr Maddison the day before as to whether he could start work with Roy the next day, from near to his home. Now, it seems to me that he was a little presumptuous, given that I accept evidence of Mr Madison that what he tried to do was, if someone missed out the day before, he would endeavour to give them work the next day which would then mean someone else missing out. By this means, he tried to balance the allocation of work to individual employees.
The Applicant was understandably very upset by what had been written on his pay slip. It may be in those circumstances that he felt that if he started from the yard he would avoid a confrontation with his fellow employees at that time when he might have done something that he would regret. I do not know what his reasons were as it didn’t emerge in evidence. This a work-place involving hard physical work, and I would be an unreal person if I did not understand that quite often such issues are wrongly resolved by the parties stepping outside the yard and having a physical altercation with one another to finalise their dispute.
The Applicant phoned up Mr Madison and said that he would start from home that day on Roy’s truck, and was told, "Well, you can have the day off." The Applicant testified that he was told that there were financial members at the yard who Mr Madison would have to put on first; and “if you want to continue working here you should join the union.” Whilst I do not accept the evidence of the Applicant completely as these words were denied by Mr Maddison. However, I do accept that some words to the effect of "if you want to continue working here, you should join the union" were used by Mr Maddison. Mr Maddison volunteered in his evidence that he was a union member.
Both men testified that one or the other then hung up the phone. In the light of the impressions that I have taken of both the Applicant and Mr Maddison, it really would be impossible to determine who hung up the phone first unless someone was actually listening in to the conversation, but in any event I do not think it matters.
The Applicant gave evidence that he went to the yard where; he first saw Peter Reithkerk and showed him the pay slip. Mr Reithkerk laughed about it, and the Applicant testifies that he said, "No, it is fucking not all right," and then he snatched back the pay slip from the hand of the union delegate and went to speak to Mr Maddison.
He went into the office and asked him to explain why he was not being given a run that day saying he felt it was discrimination. He then testified that Mr Maddison said; “if you wish to see discrimination, I will give you one or two days work per week”. I point out that when the phrase was put to Mr Maddison in cross examination, it was only one day a week basis. Mr Maddison denied that he said those words. Therefore I do not have a complete clash in the evidence, but I infer that Mr Maddison would have said some words to similar effect.
Apparently for about 20 minutes there was a vociferous discussion between the Applicant and Mr Maddison. Mr Maddison testified that it went on for such a time that he went to get himself a cup of coffee and that the Applicant still maintained his "rage about the matter."
There was a further discussion about the $20 that had been paid on account of Union Dues. Mr Maddison denied to the Applicant that he had written those words on the pay slip. I accept his denial, a man who can stay 14 years in a job which requires him to balance the competing demands of permanent and casual employees in the hard, physical work of picking up garbage, does have, in my view, some skills in dealing with individual personalities. However, some of the necessary skills may be lacking. The Applicant admits that Mr Maddison felt threatened, and that he walked back into the office and closed the door. At this stage, Mr Maddison demanded the Applicant open the door.
The Applicant was persistent, wanting some answers about what he regarded as an invasion of his personal privacy. The use of the word “wog” was an intrusion in an offensive and abusive way with, in my view, racial or racist overtones. It can be used in an inoffensive way, but it is more often than not said so to be most offensive.
Eventually, the Applicant was told to leave by Mr Maddison. He did not leave. He persisted in trying to get some action from Mr Maddison, and eventually Mr Maddison picked up the telephone and called the police. At that stage the Applicant says that he said these words, "I seem to have no choice", and that he asked then for a separation certificate. Mr Maddison told him that he would have to do the necessary paperwork, but "I want you out of the yard, get out". Then there was some discussion about when the separation certificate would be ready, and then "you go off before the police arrive" At that stage the Applicant admits that he called Mr Madison a "fucking child", and told him that he would be back at 10 o'clock to pick up the separation certificate and left the yard. He knew he needed the certificate to qualify for social security benefits.
The Applicant gave evidence that he got a casual job some eight weeks later with Chubb Security, also known as Gale Force, and that it was only at $150 net after tax for some 22 hours a week; that he is now established in a process working job. There was an eight week gap before he got any employment at all. It has been agreed by the parties that the average weekly rate of his salary was $457.52 gross.
There was some merit in the cross‑examination to the effect that the Applicant, did receive regular employment of at least 38 hours per week. When the document, exhibit 4, was prepared by the counsel for the applicant and is headed Reuben Melide Schedule of Hours Worked is examined it shows:
If the first column for 1995 that for 11 out of 32 periods he received 38 hours a week. For the next column, which is the balance, that is, from 15 August '95, to 26 December '95, there is a further 20 days. He received six out of the 20, and apparently one overtime period of 45 hours; again, not a majority of work at 38 hours. The ratio seemed to be improving for the 1996 period as it achieved the rate of 15 out of 30.
Mr Melide had been there for two years, and no doubt would have harboured ambition to be in permanent employment, given that his marriage occurred during this period. I accept that the disputes which had occurred over his union membership and non-payment of union dues could lead him to believe that he was actively being discriminated against by management. I can well understand why he probably felt that having had two years in employment he should be virtually a permanent employee although he gave no evidence of ever asking for such consideration. It seems to me that the personnel side of this company is a bit lacking depth of management. Although there was no necessity for evidence to be given to me about the method of permanent appointment. My observations are based on the way in which the pay slips were handed out to employees. This task could have been done a little better although I understand the difficulties facing the company where all its employees start work well before anyone is out of bed.
Under cross-examination the Applicant conceded that he received on average over the last six months some 30 hours a week. However, if one examines the raw statistics, one can understand how he got the impression or had the feeling that his dispute with the union delegate and with the union members over the non-payment of his fees could well have led to him having these difficulties.
The Applicant was able to give some evidence of a “Shane Tucker” getting 38 hours every week. There may have been some particular reason for that, I am not sure that this issue was put to Mr Maddison but in any event I accept that it was reasonable for the Applicant to have a perception that he was "being discriminated against" in his employment.
The Applicant gave evidence that there was an instance involving a Brian Finch when there was some threatened legal action and that Mr Finch resolved the matter by leaving so that there is a history which was not disputed by the company of matters being resolved in this way. The Applicant gave evidence of a conversation with Mrs Sweeney and in the light of the evidence given by Mrs Sweeney and the fact there was no cross-examination I think it will be sufficient if I just refer to her evidence and secondly, also in relation to Mr Gray, Mr Gray's evidence to a large extent coincides with that of the Applicant.
Mr Norman Maddison gave evidence on behalf of the company. He was currently employed with the Respondent as a domestic supervisor. He had been employed by the Respondent on and off for 14 years. Currently, his job is to start the trucks, to sort out the permanents and casuals and then during the day to deliver garbage bins. He described the situation regarding the casuals and the need to start and finish at the yard. He stressed that casuals who had a 3B licence were more likely to get work because he could put them onto a truck as a driver. There is no evidence from the Applicant that he had such a licence.
He gave his evidence as to the conversation which occurred, in a fairly laconic way. It was very brief and to the point. He expressed his concern that he could not remember some of the matters because of the time that had elapsed. However, his evidence to some extent coincided with that given by the Applicant.
He gave as his reason for calling the Police that he had been told the Applicant was a kick boxer and he was standing over him and that he was frightened for those reasons.
I have some difficulty in relation to this issue because the advocate for the Respondent did not put to the Applicant that he was a “kick boxer” which in my view would put him in a particular category depending on his level of competence in that professional or amateur sport. However, it was not put to the Applicant so I really cannot take much account of this claim. I note the Applicant had enough sense to feel that he had given - wrongly, perhaps, in his mind - the impression to Mr Maddison that he was threatening him. Thus there is some credence for this claim by Mr Maddison.
Mr Maddison said he first saw the Applicant walking across the yard and then saw him speaking to another driver. He admitted to me that he was a member of the union and, no doubt, supported its objectives but he was not allowed to attend meetings. I think this probably gave him some conflict in his day to day activities. He confirms the evidence of the Applicant in relation to the physical altercation which occurred with "N". He told the Applicant that the version which was given to him by other witnesses was that “Reuben had pushed "N" first”, or “had pushed "N””, but he had resolved the matter by telling him to shake hands and be friends.
I accept that he probably had accepted the version of the event given by “N” supported as it apparently was by another person who may have, rightly or wrongly, given eye witness evidence about what happened. Again, I think this may have given the Applicant a further sense of grievance.
I accept his evidence that he tried to allocate work each day to make sure that the employees got the same amount each week. However, I also accept that the issue of union membership became a problem for him probably on a day to day basis. When this occurred, he would perhaps back off in favour of not bringing the matter to a head which would involve him in some decision which was adverse to the Applicant’s interests in terms of being employed on that day.
I make that finding based on the way in which Mr Maddison has given his evidence. In particular, the way in which he justified decisions he had made on the basis that he had a constant round of day to day problems involving a highly volatile work force. His way of dealing with the issues was to make a decision, get on with it and then expect everybody to accept it and for there to be no recriminations or further reactions. I make that finding based on the way in which he has given his evidence as to how matters were dealt with on a day-to-day basis. Moreover, there is no evidence that there was any regular consultation on industrial type issues that might have long-standing consequences for the management of the employees.
He did not deny the evidence that the Applicant had approached him to show him a receipt for the $20. He used the words, "It could have happened, I don't know". He denied using the words; "If you don't want to join the union go elsewhere". However, I find that words to that effect were used by him because in my view that would be his way of resolving the issue without bringing on a major confrontation between the union, his employer and the particular individual.
Mr Gray gave evidence for the Respondent. He was their operations manager. He was responsible for the drivers and the vehicles and reported to the New South Wales branch manager. There were some 50 permanent employees and the company was established on an interstate basis. I suggested to the Respondent that they not call that evidence or more detailed evidence as to the activities of the company as I did not feel it was relevant to the proceedings, particularly in the light of the decision which I will make in relation to impracticality.
Mr Gray gave evidence that on 24 July 1996 he received a message to ring Reuben Melide at his home number. I accept that it was more likely than not that this was the first knowledge he had of the incident. He may not have spoken to Mr Maddison until the next day about it when he then heard the version given by Mr Madison. However, he was able to determine in the conversation, that the Applicant was not in the yard for the job, that he rang from home and that was against the company policy.
Mr Gray recalls the Applicant told him about the material written on the pay slip and that the Applicant was unable to indicate who had written it or to give him his suspicions. There is no doubt in my mind that Mr Gray took a serious view of that issue and offered employment to the Applicant the next day. He said he would be there at 5 o'clock to see that there were no recriminations on that day. However, in my view Mr Gray did not go sufficiently far enough to provide assurances to the Applicant in view of the history involving his union membership - the issue about the drink driving, and the abusive and racist comment on the pay slip. There was no assurance to the Applicant that things would change as a result of him accepting the offer to go back. In my view the Applicant was entitled to test the issue in court.
Ms Marcia Sweeney gave evidence that she had been employed there for about nine years processing the payroll. When she arrived at work on 24 July 1996 she received a note requesting the issue of a separation certificate. This note was not tendered in evidence. Ms Sweeney filled it out as best she could but there were two matters that she could not complete. That was the net final amount and the reason for termination. Ms Sweeney could not process the amount until the Applicant’s payroll which was normally processed the next day had gone through the system. After discussion with the Applicant, she endorsed the certificate with the words "not get enough hours and days a fortnight, not enough work". Her evidence was uncontested under cross-examination and she confirmed that the Applicant had shown the offending pay slip to her. Again, this is an indication of his concern about what was written and the failure of management on at least two opportunities to take some action about his complaint.
I have had detailed submissions from the Applicant’s counsel and from the Respondent, all of which I found helpful in determining this matter and I do not propose to outline them in any detail.
Mr Maddison impressed me as a laconic person who is ideal to deal with the day-to-day difficulties which no doubt arose in the yard of the Respondent. There is often a common factor of disputation in employment relations where there is a mixture of permanent and casual employees employed in the one workplace. Tension often arises over the perceptions about the allocation and extent of work given to either the permanent or casual staff at the expense of the other category of worker. Mr Maddison admitted in evidence that he was a union member who was not allowed to attend meetings. It was not specifically put to him that he had in fact, because of his physical location to the union meetings held in the yard of the employer, heard the discussion about the Applicant.
I am satisfied that having been employed by the Respondent for some 14 years that he had some good skills which enabled him to handle the day-to-day situations which arose and the allocation of work at 4.30 and 5 o'clock in the morning quite well. He also maintained an attitude towards work of dealing with the immediate problem irrespective of the consequence of moving on to the next issue without taking any follow-up action. I am convinced that there was not any proper procedures made available to him by management to enable him to take follow-up action in the light of the dispute that was occurring about the drink driving allegation. I regard this as a very serious allegation and I am not satisfied that the company properly investigated the complaint.
This no doubt was not satisfactory to the Applicant and therefore became a cause for a long-standing grievance. The way in which the company dealt with this most serious allegation about “N” being a professional driver and drinking on the job was alarming. As a professional driver, “N” is a “Special Category Driver” subject to “Special range prescribed concentration of alcohol in his blood” limitation when driving the trucks of the Respondent. (See “Section 4E(IB) Traffic Act 1909 (NSW) “Special Category Driver”, and Section 4E(ID) “Special Range Prescribed Concentration of Alcohol”) The mere suggestion that an employee was going onto the road with any alcohol was a matter that ought to have been thoroughly investigated.
I would strongly recommend to the company that it develop a drug and alcohol policy that would enable, for instance, its own random testing of drivers and rehabilitation and counselling services to employees. The trucks that are being used by the company are large vehicles. They are required to operate in extremely dangerous conditions in residential streets and major roads. The residential streets may range from main roads down to little cul-de-sacs but in any of those cases the slightest mishap can cause enormous damage. In my view consideration may need to be given by a company where there are allegations of this nature of requiring the employee to submit to a random breath test on a regular basis.
There is no evidence that I can make any finding that “N” was imbibing any alcohol at all although I accept the report of the applicant to be genuine and truthful. I stress, it is a serious offence with a possible penalty of goal, particularly with the type of the vehicle and the way in which the trucks operate. I think the Applicant was entitled to be concerned about this aspect and the way his complaint was investigated left much for him to be concerned about. This justified him in feeling that his complaint about the abusive and racial comment would not be properly investigated.
Management was deficient in that it did not provide Mr Maddison with any proper support. He would make a decision and move on to other things as he had to at 4.30 or 5 o'clock in the morning. I cannot make any positive finding against Mr Gray in the light of the suggestion that he knew about the drink-driving issue at an earlier date. However, it is as I say a matter of concern that this sort of issue was not dealt with properly at the time it was first reported.
On the question of union membership, I find that Mr Maddison found himself in a quandary. He was a member of the union; the union delegate was endeavouring by a number of means to collect the fees for the union and the Applicant, for whatever reason, did not wish to remain financial. He gave evidence that as a person who was getting married he could not afford to pay the union dues. Perhaps if all three parties had been able to sit down in a mutually beneficial way and sort it out then this matter might not have occurred, but the parties did not do take that course.
I accept that Mr Maddison, on the balance of probabilities, did say to the Applicant that he ought to fix himself up with the union. Although he denied saying these words I believe that would be his way of resolving the issue without bringing it to the attention of management, particularly knowing management's policy as expressed by Mr Gray that they would not stand for, “union bully-boy tactics”. His reporting of such incidents was likely to lead to a larger confrontation in the work force and he did not wish that to occur.
There is support for this proposition in the sense that the evidence of Mr Gray is that the company has now entered into a new contract in which all the employees are required to be permanent employees, thus getting rid of the tension that existed between the permanent and casual employees as to the allocation of work.
In considering the effect of the offer of employment made by Mr Gray, I have taken into account the observations made by Moore J in Wilson -v- IPC (Unreported IRCA 67 IR 302). In that case, a similar offer of employment was made the next day.
The evidence of Ms Sweeney supports the version of the Applicant relating to his concern about the pay slip. It was then that Ms Sweeney wrote the words which are on the separation certificate to the effect that the employee was working on a casual basis and felt he was not getting enough hours. In my view that is a summary which Ms Sweeney probably felt she could record without offending too many people. It was more appropriate for her to have reported the situation, particularly the remarks on the pay slip, to senior management. But as stated in her evidence it was not her problem. I therefore, on the balance of probabilities, do not make any finding against the Applicant on the basis of what was written on the employment separation certificate.
Her evidence in my view corroborates the evidence of the Applicant about his concern about the violation of what is normally regarded as a confidential document between an employee and the employer.
There is no fault that can be directly attributed to Mr Maddison as there had not been any previous instances of writing on pay slips. Certainly there was no evidence of that nature given to me. However, that does not excuse management from its responsibility to reasonably take care of such documents. In my view, the inaction of the Respondent allowed this incident to happen and therefore it must bear the responsibility and the consequences of whoever it was that wrote the words "pay up wog" on the pay slip.
It was reasonable under the circumstances that the Applicant thought that were he to make further complaints about this abusive and highly disparaging remark, that it would only lead to further loss of work and no proper investigation. In the circumstances I accept that the Applicant considered that he had no option other than to take the action which he did in seeking to protect himself by obtaining an employment separation certificate and to obtain the Social Security benefit as soon as possible.
I, specifically, find that the Applicant had no option other than to remove himself from the premises when Mr Maddison told him to leave. I find that to be a termination of the initiative of the employer. See them discussion on this issue by Wilcox CJ in Carl Sparre -v- David Graphics Pty Limited (Unreported Wilcox CJ, 12 July 1995, Decision No. 410/95).
The evidence of Mr Green and the Applicant is similar in relation to the offer of further employment being made. I consider that the Applicant was justified in not accepting the offer of re-employment in the circumstances. Mr Gray either did not realise the necessity for or was not prepared to make any other long-term assurances to the Applicant for him to come in to his office and set out in full his grievances with the company.
Whilst his offer to be there at 5 o'clock is acknowledged to see there were no recriminations - but that is simply part of the work of the operations manager in such a business. Undoubtedly, he would be there on a regular basis from time to time. However, it was again a "short-term fix" similar to the way in which Mr Maddison went about doing his job and that was not acceptable in the circumstances. I note the allegation that “N” is a personal acquaintance of Mr Gray's, again that may afford some additional support to the Applicant on this issue.
In all the circumstances, having regard to the fact that in my view there was a termination at the initiative of the employer there was no valid reason for the termination of the employment of the Applicant.
I turn now to the question of impracticality. Normally, in a case like this I would follow the remarks about the impracticality and re-instatement as discussed by the full court in Liddell -v- Lembke (1 IRCR 466). Those observations in effect suggest that I have a limited discretion not to make an order for reinstatement where the business is still operating. I did not in the evidence detect any great animosity towards the Applicant by either Mr Maddison or Mr Green and as I have indicated earlier, his evidence as to turning up every day and looking for work was unchallenged. Indeed the usual lack of confidence argument was certainly not pursued.
There are two factors why I consider that it is impractical to reinstate the Applicant. The Applicant has not indicated in his evidence, or volunteered, that there has been any change of attitude towards the payment of union dues. The legal situation is that there is no necessity for him to make that concession.
In the industry that he was working in, it would seem to me that the union could provide him with support in a number of ways. The assistance which a union can provide to a worker may have been lost sight of by the Applicant. There is no doubt that his dispute with the former union delegate provided some personal animosity. In any event he is not required to be a member of the union and the company in my view is required to enforce his decision not to be a member of the union and to employ him. I acknowledge that the Respondent is a member of an employer's organisation and there is a lot to be said for companies being members of such organisations and having the capacity to get experienced and expert advice on issues as they arise on industrial matters.
Nevertheless, the position at law is that he is entitled not to be a member of the union and the company is not able to make any distinction on this basis as an employee. I find that there was that distinction, it may not have been done deliberately but it may have been done insensitively. It may not have been done or encouraged by the senior management of the employers but in the circumstances I find that it occurred. There has been no change of attitude by the company, it is unlikely the union is going to change its attitude and so if I were to reinstate the Applicant I would be subjecting the company to a further industrial problem. In my view I should take that into account and determine that there is to be no reinstatement.
More importantly, I accept the evidence of Mr Gray that the company has now entered into a ten year contract for collecting domestic rubbish in the area in which the Applicant worked. The trucks have now been converted to one-man operation and all the employees are permanent. In my view that would not of itself prevent the Applicant being appointed to a permanent position. But in order to have that job the person must be the holder of a specified class of licence. There is no evidence before me that the Applicant has a licence or that category of licence. On that basis I also make the finding that it is impracticable to re-instate the Applicant.
It would of course be possible for me to make orders to overcome the situation if I regarded the company was more culpable in this matter than I have concluded it was in all the circumstances. Orders could be made to the effect that it would provide the Applicant with an opportunity of obtaining the necessary category of licence if that was possible, and there were no other reasons why he could not acquire the licence.
As I say I find a degree of culpability of management in relation to its breaches of sections 170DF(1)(c): non-membership of a union, I take the words "non-membership of a union" to include being an unfinancial member of the union and therefore not a member in legal standing with the union. I also find the company to be responsible in terms of Section 170DF(1)(f) on the basis of the racial comment that were made. The Respondent was responsible for the production of the pay slip and its security and confidentiality and it failed lamentably in that regard. Had those remarks not been made this case would not have occurred.
I understand from the evidence of Mr Gray that the Respondent now has a workplace health and safety committee and it would be possible for any employee who found himself aggrieved as the Applicant did to be able to raise the matters with this committee. The matter of the drunk driving, the violence and the physical confrontation are all matters that the committee through its own employee members could take action to resolve these issues. However, that was not done in this case.
As I say I have assessed the degree of culpability in the lower range but in all the circumstances I find that the re-employment of the Applicant is impracticable. In the light of that finding I turn to the question of compensation under section 170EE(2). I am obliged by that section take account of the circumstances, but I am able to make an order requiring the employer to pay the employee's compensation of such amount as the court thinks appropriate.
In working out the compensation I am to have regard to the remuneration the employee would have received or would have been likely to have received if the employer had not terminated the employment. There is also a limitation expressed as to the amount of allowable compensation. In this application the Applicant volunteered that it was about eight weeks before he was able to obtain other employment. Thereafter he was paid at a lesser rate than he was earning with the Respondent. Whilst there are cases that suggest that I can take into account future wage losses in employment for in this case I feel it appropriate in all the circumstances to assess the compensation on the basis of the eight weeks period which he said he was without work at all.
In making this award I note that it was some time before he went on to what might be regarded as a full wage and probably today is not earning as much as he could have if he had five days a week on the hard physical work that he was doing for the Respondent. In making that eight weeks award I take into account that I am going to find that there was also a contravention of section 170DB in that the Applicant having been employed for more than a year and not more than three years should have been paid at least two weeks notice and there will be a finding that there be compensation on the basis of two weeks wages.
There will be an award under section 170DB(2) of two weeks being an amount of $915.04; There will be an award of eight weeks compensation at $457.52 per week being an amount of $3660.16. I note that in the above awards I contemplate the deduction by the employer of taxation at the appropriate rate, to be deducted on the basis of a pro tanto recognition of the payments.
The orders I propose and what I am going to suggest in view of the time that the counsel and the Respondent confer and produce draft orders for me to sign, that can be done in chambers and I will issue them as soon as possible.
The award will run from the date I issue those written orders. They will be on the basis that I regard the company as a substantial company and I do not think I need to hear from you on time to pay.
I propose that the award of the two weeks wages be made within seven days, and that the Respondent can have pro tanto relief for any amount of tax paid to the Taxation Office within seven days. The amount of $3660.16 is on the basis of the eight weeks at the $457.52, be paid to the Applicant within 21 days of the issue of the orders. Finally the company may obtain pro tanto satisfaction by payment to the Taxation Office within 21 days of the appropriate amount of taxation.
The court finds that:
The Respondent did not have valid reason for the termination of the employment of the Applicant on 24 July 1996.
The Respondent has contravened Section 170 DF(1)(c) on the grounds that the Applicant was an unfinancial member of the Union prior to the termination of his employment.
The Respondent has contravened Section 170DF(1)(f) on the grounds of Race.
The Respondent has contravened Section 170DB in that wages for two weeks should be paid.
It is impractical to reinstate the Applicant in his former position with the Respondent.
It is appropriate to award compensation to the Applicant in the sum of Three Thousand Six Hundred and Sixty Dollars and Sixteen Cents ($3660.16).
The court orders that:
The Respondent to pay to the Applicant within seven days of the date of these orders the amount of Nine Hundred and Fifteen Dollars and Four Cents ($915.04).
Any sum paid within seven days of the date of these Orders to the Australian Taxation Office, on account of the Applicant in respect of the sum ordered in paragraph 1 shall be pro tanto satisfaction of the Respondent’s obligation under Order 1.
The Respondent to pay to the Applicant within twenty-one days of the date of these orders the amount of Three Thousand Six Hundred and Sixty Dollars and Sixteen Cents ($3660.16).
Any sum paid within twenty one days of the date of these orders to the Australian Taxation Office, on account of the Applicant in respect of the sum ordered in paragraph 3 shall be pro tanto satisfaction of the Respondent’s obligation under Order 3.
I certify that this and the preceding 33 pages
are a true copy of the reasons for decision of
Judicial Registrar McIlwaine JR as recorded in the transcript
and revised by the Judicial Registrar.
Associate: Biddy Hughes
Dated: 4 April 1997
APPEARANCES
Counsel appearing for the applicant: Judith Keys Industrial Officer appearing for the respondent: Nick Chadwick
Dates of hearing: 15-16 January 1997
0
0
0