Michael Carter v Bridgestone Australia Limited
[1995] IRCA 99
•09 March 1995
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - warnings - whether Applicant dismissed because of temporary absence due to illness - whether termination harsh unjust or unreasonable -compensation.
INDUSTRIAL RELATIONS ACT 1988, S170EA, S170EE, S170DF(1)a
MICHAEL CARTER -V- BRIDGESTONE AUSTRALIA LIMITED
NO. SI 152/1994
Judicial Registrar: L Farrell
Place: Adelaide
Date: 9th March 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY SI 152/1994
B E T W E E N:
MICHAEL CARTER
Applicant
AND
BRIDGESTONE AUSTRALIA LIMITED
Respondent
MINUTES OF ORDER
Judicial Registrar Farrell
Date: 9th March 1995
THE COURT ORDERS THAT:
The termination of the employment of the Applicant by the Respondent contravened
Division 3 of Part VIA of the Industrial Relations Act 1988.
That the Respondent pay to the Applicant the sum of $9,000.00 by way of compensation within fourteen days of today’s date.
NOTE:Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SI 143 OF 1994
B E T W E E N:
MICHAEL CARTER
Applicant
AND
BRIDGESTONE AUSTRALIA LIMITED
Respondent
BEFORE: JUDICIAL REGISTRAR FARRELL
PLACE: ADELAIDE
DATE: 9TH MARCH 1995
REASONS FOR JUDGMENT
This is an Application pursuant to Section 170EA of the Industrial Relations Act 1988. The Applicant seeks reinstatement and compensation. The Applicant was employed as a second stage tyre builder at the Respondent’s Salisbury Plant from the 21st April 1986 until his employment was terminated on the 20th May 1994. The Applicant worked a rotating weekly shift alternating between day, afternoon and night shift. In 1993 the Applicant had been given a series of warnings regarding absenteeism. On the 30th November 1993 a written final warning was issued to the Applicant for continuing absenteeism. On the 31st March 1994, a reiteration of that final warning was issued for continuing absenteeism. On the 13th May 1994 the Applicant was approximately 25 minutes late for work. On the 18th May 1994 the Applicant was suspended without pay. On the 20th May 1994 the Respondent verbally terminated the Applicant’s employment. The Applicant subsequently received written reasons for the termination of his employment which stated “a result of your lateness for work having previously received verbal, a written and two written final warnings for absenteeism and lateness”.
Evidence in the matter was given by the Applicant, Mr Carter, a Union delegate, Mr B McRae . The Respondent’s evidence was given by Mr H McManus, Mr V Blacker and Mr T Ryles.
There was very little by way of factual dispute in this matter. It was stated by Mr McManus in his evidence that in respect of the absence by the Applicant on the 30th March 1994 that the Applicant stated that he had slept in. The Applicant’s evidence was that he was unwell on that date. Both Mr Ryles and Mr McRae gave support in their evidence to Mr Carter’s contention. I therefore accept that the Applicant was in fact unwell on the 30th March 1994 and that was the reason for his absence on that day.
The Respondent has a well established procedure for dealing with disciplinary matters. It involves a series of warnings followed by a final warning. The warnings are provided in writing and a Union delegate is present during the discussion regarding the warnings.
The written warnings in this matter refer to “attendance” however the final written warning mentions absenteeism and lateness. In 1993 the Applicant had taken 25 days sick leave of which 13 days were substantiated by a medical certificate. The Applicant was entitled in 1993, in addition to days substantiated by medical certificate , to a further four days as long as they were not consecutive days. This is provided for in the Award which governs the Applicant’s employment being the Plastic, Resins, Synthetic Rubbers and Rubbers (Bridgestone) Consolidated Award 1988.
At Clause 27 the Award reads as follows:
Sick Leave
Every full time employee who is unable to attend or remain at his or her place of employment by
reason of illness and who complies with the terms and conditions prescribed by paragraphs (1) and (11) hereof shall be granted by his or her employer paid leave not exceeding the sick leave credit of that employee:
The sick leave prescribed shall be granted and the payment in respect of an absence due to illness provided that:
1Within 24 hours after the commencement of the absence he or she informs his or her employer of his or her inability to attend for duty and, as far as practicable, also informs the employer of the nature of the illness and the estimated duration of the absence; and
2That during a twelve month period January 1- December 31 of any one year the number of absences from work without a medical certificate or other reasonable evidence does not exceed four(4) days. These four days may be taken singularly. All other claims for sick leave during the twelve month period must be supported with a medical certificate or other reasonable evidence.
For the purpose of this clause illness includes personal injury but does not include an injury for which compensation is payable under the Workers Compensation Act, 1971 of South Australia.
(b) In respect of :
(i)The first year of service with the employer an employee shall be entitled to a grant of leave under this Clause by that employer at the rate of ten days on full pay per year; and
(ii)The succeeding years of continuous service with the employer an employee shall, on or after the commencement of each such year, be entitled to a grant of leave under this Clause by that employer equal to ten days per year on full pay which shall accumulate year by year.”
There are a further three sub-paragraphs of Clause 27 of the Award, however, they are not relevant to this matter. In my view the Applicant should not have been warned following his absence from work on the 30th March 1994. The Applicant was exercising a right, subject to certain conditions, pursuant to the Award.
It was argued by Mr Butler on behalf of the applicant that the termination of the Applicant’s employment was in breach of Section 170DF(1)a which deals with employees who are dismissed because of temporary absence from work because of illness or injury. I do not accept that argument. The Applicant was terminated because he was late for work by 25 minutes on the 13th May 1994.
In considering Section 170DE(1) and 170DE(2) I accept the argument of the employer that it is important to its business that employees arrive for work on time, however in my view the employer should have had regard to the following factors:-
Its own history of having treated this employee inconsistently with regard to his lateness and absenteeism over the years of his employment.
More importantly since the 30th November 1993, the date of the final written warning , the employer has only one complaint that was reasonable against the Applicant and that is that he was approximately 25 minutes late for work five and a half months after that warning.
Thus there had been a very clear improvement in the Applicant’s conduct since the 30th November 1993. In those circumstances I regard the dismissal of the Applicant harsh, unjust and unreasonable and therefore unlawful pursuant to the Act.
In respect of the issue of remedy pursuant to Section 170EE of the Act I note that the granting of any remedy is discretionary. In my view in light of the evidence and in the particular circumstances of this case, reinstatement of the Applicant in this matter is impracticable. In my view compensation is the appropriate remedy pursuant to the Act in this matter. I therefore award to the Applicant the sum of $9,000.00 by way of compensation.
I certify that the preceding 3 pages are a true copy of my reasons for judgment.
DATE OF HEARING: 19th & 20th December 1994
FOR THE APPLICANT: Mr Butler
FOR THE RESPONDENT: Mr Charles
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