Miranda v Ici Australia Operations Pty Ltd
[1996] IRCA 321
•07 May 1996
DECISION NO: 321/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Applicant sent a letter threatening, amongst other things, the site manager’s “spiritual neck”, and warning of “God’s brand of justice” - Further such letters were repeated, after an express direction not to do so - Reasonable apprehension of violence - serious misconduct - VALID REASON for the termination of employment - The misconduct was so serious that it warranted the summary and immediate termination of the applicant’s employment - Not HARSH UNJUST OR UNREASONABLE.
Industrial Relations Act 1988 ss 170DC, 170DE, 170EA.
Occupational Health and Safety Act, NSW (1983) section 15(1).
REYNALDO MIRANDA -v- ICI AUSTRALIA OPERATIONS PTY LTD
No. NI 0030 of 1995
BEFORE: PATCH JR
PLACE: SYDNEY
DATE: 7 MAY 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY
No. NI 0030 of 1995
BETWEEN:
REYNALDO MIRANDA
Applicant
AND:
ICI AUSTRALIA OPERATIONS PTY LTD
Respondent
BEFORE: PATCH JR
PLACE: SYDNEY
DATE: 7 MAY 1996
REASONS FOR JUDGMENT
(Delivered ex tempore - revised from transcript)
This is an application under section 170EA of the Industrial Relations Act 1988 ("the Act"). The applicant was first employed by the respondent in 1989, in a different division to the pharmaceuticals division. He was made redundant after a few months and subsequently regained employment in the pharmaceuticals division of the respondent's group of companies.
By way of background, considerable evidence was called, and considerable cross-examination resulted, in respect of the applicant's performance and conduct - that is to say, his competence at work and his relationship with his fellow employees.
The chain of events which led up to the termination of his employment commenced in the middle of 1993 when the applicant was disciplined for some infractions of the safety regulations - namely drilling holes in his safety hat and his safety shoes. (See exhibit 4 which is a file note of a meeting held on 26 July 1993 concerning those safety issues).
Eight days before that meeting, two members of the applicant's work group had approached one of the managers of the site wishing to organise a meeting to discuss the conduct and attitude of the applicant.
I should add here that the ICI Pharmaceuticals worksite at Villawood is organised on the basis of self managed work groups. This occurred in the early 1990s as a result of enterprise agreements entered into between the respondent and the relevant trade union or trade unions.
The applicant, at the time of the termination of his employment, was a member of a four man self-managed group in the dispatch section of the respondent's warehouse at Villawood.
The two persons who approached management in July 1993, Mr Peter Mackman and Mr Adrian Johnson, were representative of all of the others of the work group apart from the applicant. Various complaints were made about the applicant's performance, attitude and conduct.
As a result of those complaints, and as a result of an assessment which followed concerning those complaints and the applicant's safety infractions, at the end of August management determined, in consultation with the work group, that the applicant's merit money was to be reduced to zero and that he was to undergo a period of what was, in effect, strictly supervised work with a view to improving his conduct and performance.
The applicant's work did improve under supervision, and on 28 June 1994 his position was reviewed, his merit money of $6 was restored and he was promoted in grade. There were, however, still some criticisms of his conduct and performance, although they had abated somewhat from the position in July and August 1993.
At the end of October 1994 the other members of the applicant's work group once again complained to management about his conduct and performance. See exhibit 9 which is the notes of a meeting held on 31 October 1994.
In his evidence the applicant said that he had disagreed at the time, and still disagreed, with each and every criticism of his conduct and performance made of him by his workmates and management - with the exception of the safety infractions. That disagreement was not always expressed at the time the criticisms were made.
That attitude of the applicant's is important, because the events which led up to the termination of his employment were developments of what, to my mind, is a stubborn and irrational refusal by the applicant to accept justifiable criticism. Everybody else in the applicant's workplace, with the exception of him alone, was united in making serious criticisms of his conduct and performance.
The applicant consistently refused to take those criticisms on board and to accept them as having any validity. Instead, particularly from the end of October, he responded by making defensive allegations and, to some extent, harassing two of his colleagues in the work group, Mr Johnson and Mr Bergman.
More importantly, he started writing letters to Mr John Long, who was the site manager of the respondent’s warehouse at Villawood. The first of those series of letters was dated 14 November 1994 but not received by Mr Long until 21 November 1994.
This letter followed a meeting on 31 October 1994 (which is recorded in exhibit 9) at which criticisms were made of the applicant's performance.
In a signed note of that meeting, exhibit 9, the following is recorded:
It was stipulated by J. Long that R. Miranda's performance level must increase immediately and be maintained.
J. Long specified that he will be closely monitored and written warnings issued when performance is below the acceptable standard. This note is to be considered as a formal written warning that his performance is not acceptable.
On 21 November 1994 the applicant wrote a letter to Mr Long, beginning with the words, "Please allow me to tell you about a development which is no less than a miracle!" He then went on to talk about how a work practice had, according to him, been changed in the work group and that all of the complaints about him were based on inaccurate information, and so on. The applicant also asserted that Mr Long had wrongly misunderstood the information given to him and which had provided, according to the applicant, the illusion of under -performance.
As a response to that letter, Mr Long initiated a meeting between himself and the applicant, which occurred on 24 November 1994. In essence, Mr Long reiterated the warning given to the applicant in the note of the meeting of 31 October 1994 (exhibit 9) and stressed the necessity for proper communication within the work group.
I accept Mr Long's version of that meeting and I accept that the file note made by Mr Long is an accurate record of the substance of the discussion between himself and Mr Miranda. A sufficient reason for accepting Mr Long's version is because his version of the events is reflected in a contemporaneous note.
After that meeting the applicant, according to his own testimony, was angry - and he was angry with Mr Long.
The meeting on 24 November had, according to the applicant, lasted for about two hours. In cross-examination concerning the letter which the applicant sent to Mr Long on 28 November 1994, exhibit 12, the applicant said that he had sent that letter "telling him exactly how I felt during those two hours." He said that he was angry and a series of questions and answers followed that evidence.
I read from my note which I am confident is an accurate record of the evidence, if not accurate in a verbatim sense.
Question: "Be very careful with my neck and yours" was a threat?
Answer: It was a spiritual warning.
I interpose here to note that the words "Be very careful with my neck and yours" are a reference to a passage from exhibit 12.
Question: You meant him to be scared?
Answer: Yes, scared of God. Not of me, because I don't implement God's justice.
Question: You were angry and you wrote that in a spirit of anger?
Answer: Yes.
Question: In anger and to scare him into acting the way you wanted him to act?
Answer: Yes.
In reference to the applicant's admitted conduct in on 30 November in following Mr Johnson, a member of his work group, into the smoking area and confronting him there, the applicant was asked a series of questions and gave answers as follows:
Question: You construed Mr Johnson's complaints as aggressive and decided to be aggressive to him?
Answer: Yes.
Question: On 30 November you decided to unsettle Mr Johnson by following him around the workplace?
Answer: Yes, as much as he'd unsettled me. I announced that to him. I followed him to the smoking table and confronted him.
Question: The way you were trying to get him to change his opinion was to intimidate him?
Answer: Counter-intimidation. He was intimidating me all along.
Question: Mr Johnson walked away from the smoking table upset?
Answer: Yes.
The applicant agreed that his behaviour to Mr Johnson was aggressive.
The letter of 28 November 1994 addressed to Mr Long (Exhibit 12) reads as follows:
20 Nov. 1994
Mr John Long,
It is not impossible that God sent me to you for your Biggest and Final test to determine whether you will qualify for eternal reward in heaven or you qualify for eternal punishment in the like of fire. I may be small yet I am not expendable. I may be enough to merit you eternal tears, pain and sorrow. You may have done a lot of things pleasing to the eye of God but mishandling me can make you lost reward for other good deeds (James 2:10).
Both believers and unbelievers will be judged by Christ (Romans 2:11-16). Any wise person would very, very much prefer to be a winner before the judgment seat of Christ. Uncompromised preparation or qualification for final and everlasting victory is an absolute must therefore. Risking eternal damnation and punishment is the ultimate act of insanity! Would you rather risk or lose your salvation for the sake of a few inaccurate or prejudiced or downright false accusers? What does it profit a man to gain the whole world (or the favor of the whole world) but suffers the loss of his soul? (Mark 8:36).
Heaven or salvation is not gained cheaply. Many are called to salvation but only a few are chosen (MT. 22:14). Why? Because people try to please men rather than obey God (Acts 5:29). For example rather than give an accused person due process he is not given a chance to sort out his problems by his workgroup and by his managers. His explanation, side or defense (sic) in each major or substantial issue is not heard or listened to. A written warning and a monitoring are initiated before his side of issues are heard. Is this the way Christ would do it if he was in Mr Long’s position? I doubt that very much.
Anyway you can cut my careers neck using Christ’s or God’s brand of just adjudication processes and you have no problem with your salvation in reference to me. However if you cut my careers neck (using any other brand of justice other than the brand acceptable to God and Christ) it is tantamount to cutting your own spiritual neck!!! You would not want to do that I suppose. You can still fulfill your duty to the business while making sure that you save your spiritual neck by deciding and actioning my case using God’s brand of justice. No penalty or warning or monitoring until all sides have finished their rendering of their positions and information.
I will write you about merit and performance soon and on bludging too.
What are some characteristics of God’s brand of justice?
It does not discriminate based on race, color, nationality, religion etc. Such as the ICI employment policy says. Why? Because God is not racist presumably because he created all people. “Have we not all one father? Has not one God created us?” (MAL.2:10).
It is not partial, blinkered or one-sided. No favoritism nor discrimination.
God’s heavenly reward is eternal and too precious to lose. To gain it one may or must be more than ordinary extraordinary or even unpopular decisions may need to be made by would-be-heaven-dwellers. Serving God above men or before serving men can mean going thru fire-like-tests so men can be refined as silver is refined and be tested as gold is tested. (LEC.13:9).
Be very careful with my neck and yours. Your spiritual neck is to precious to risk. Judgment day can be closer than we think. Time flies. Do not be a fool for anyone and pay with your soul forever and ever.
Your fellow aspirant
for salvation
R. Miranda
P.S. This letter was pre-discussed with the workgroup as a personal letter. Contents and copies for distribution was left by the workgroup for your discretion. No one knew what this personal letter would contain.
Some words in the middle of the second page of that letter were underlined in order to give them increased emphasis. Those words were:
However, if you cut my career's neck (using any other brand of justice other than the brand acceptable to God and Christ) it is tantamount to cutting your own spiritual neck!!!
The applicant went on to say in that letter, although these words were not underlined:
You would not want to do that I suppose, you can still fulfil your duty to the business by making sure that you save your spiritual neck by deciding and actioning my case using God's brand of justice. No less.
He went on to say:
We can start all over. This time with God's brand of justice.
I also regard the last paragraph above the applicants signature as important, and will repeat it. That reads as follows:
Be very careful with my neck and yours. Your spiritual neck is too precious to risk. Judgment Day can be closer than we think. Time flys. Do not be a fool for anyone and pay with your soul for ever and ever.
It is signed, “your fellow aspirant for salvation, R. Miranda.”
Upon examination, in my opinion, that letter would cause a reasonable person to fear for his or her safety. Mr Long's reaction to that letter - namely that he feared for his physical safety - was a reasonable one.
On 1 December 1994 a meeting was called involving the applicant. Those present were Mr Long, the applicant, and the three other members of his work group, namely Mr Peter Mackman, Mr Adrian Johnston and Mr Ernie Bergman.
The meeting was called to discuss the applicants situation. The letter of 28 November, (exhibit 12), was mentioned by Mr Long at that meeting.
On 2 December 1994 Mr Long sent the applicant a letter, that letter reads as follows:
I have again read your letter of 28 November 1994 and I find it extremely offensive.
I also find your references to my spiritual neck very threatening. I find the entire tone and content of your letter threatening.
I demand that you do not write me any more letters of this kind. If you do, I will pass them on to the appropriate authorities.
That was a clear demand and a directive from Mr Long, both at a personal and a managerial level, to the applicant that he should not send any further letters of the kind of that dated 28 November 1994 (exhibit 12).
On or just before 9 December 1994 the applicant wrote another letter to Mr Long (exhibit 15). The applicant says that he tried twice on that date to give the letter to Mr Long but Mr Long refused to accept it.
Mrs Amanda Baston, who was the Safety, Health and Environment Manager of the respondent, gave evidence that Mr Long had discussed that letter of 9 December 1994 with her on that date.
However, the notes of a meeting held on 9 December involving Mr Long, the applicant, Mrs Julie Wetherston (who at the time was a manager at the plant) and Mrs Baston refer only to the letter of 28 November 1994 as having been discussed.
That meeting occurred at 4.10pm and was the meeting at which the applicant was suspended from work. There is specific reference in those notes (exhibit 18) to the "letter" in the singular. I am sure that if Mr Long had received the letter of 9 December 1994 prior to that meeting it too would have been canvassed in discussions. As it was clearly not canvassed in discussions, I conclude that Mrs Baston's evidence on that matter is faulty (but not untruthful) and that Mr Long did not receive the letter until some time later.
The applicant was unable to explain how the letter came into the possession of the respondent company. The best he could do was to speculate that at some time later in December, when he faxed some documents to Mrs Cussens in Melbourne, it was sent by mistake.
To my mind, that is inherently unlikely. In my opinion, it was deliberately communicated to the respondent, (and therefore to Mr Long) not on 9 December 1994 but at some time within the few days that followed. Perhaps it was sent to Mrs Cussens - but I do not accept that that was by mistake. The fact that the letter was similar in some ways to other letters sent to Mr Long by the applicant makes it unlikely that it would have been sent by mistake.
In any case, I regard it as important that the applicant wrote the letter and tried twice to physically deliver it to Mr Long on 9 December 1994. The act of attempting to physically deliver the letter was itself a breach of the directive given by Mr Long to the applicant on 2 December 1994 in the letter of that date (exhibit 14).
The letter was essentially a plea to Mr Long to hear him before any decision was made in relation to his future.
The last paragraph of that letter reads as follows:
All authority comes from God. Even yours. Thus I believe that God is your highest boss too. God would like you to represent him as Christ would in the administration of his brand of justice.
Please hear my side first, or also, before any decision. May God bless you.
It is signed by the applicant.
I regard the repeated reference to God's "brand of justice" (the same terminology as used in the letter of 28 November - Exhibit 12) in that letter as an infringement of the directive given to the applicant by Mr Long on 2 December 1994, and a repeated and deliberate attempt to intimidate Mr Long.
On 9 December 1994 Mr Long, having consulted with other persons within the respondent's group of companies, decided to suspend the applicant from employment on pay.
In my view, that action of Mr Long was a reasonable one because of the contents of the letter of 28 November 1994, exhibit 12. Mr Long was justifiably concerned for his own physical safety, as well as the physical safety of other persons in the work group. The receipt of such a letter by management would, in my view, reasonably result in an apprehension that the sender of the letter could be capable of inflicting harm, not only on the receiver of the letter, but on other persons at the workplace.
On 11 December 1994 the applicant wrote another letter to Mr Long. That letter became exhibit 19, and reads as follows:
11.12.94
Mr. John Long,
You, after God, are the person I fear most. I am filled with fear everytime I hear your name, read your name or see you. You are also the person from whom I need the most, next to God, for the continuation of my life and that of my family’s. And I needed your help, justice, most desperately. I can never for a moment think of threatening you physically. Absolutely never and God is my witness. God when used as a witness to a lie will repay the swearer most severely. And I am second to none in believing in God’s justice which I in fact specifically and maybe over-emphatically tried to remind you of - for your benefit and for my benefit too hopefully.
I underlined the word “biggest” and last or “final” rather because your support of the accusers in the workgroup was equivalent to unconditional. Therefore it is not impossible that my case is the biggest and most consequential (therefore good as “final”) test for you. There could be more similar tests later but your seemingly unchangeable one-sided position makes my case the biggest test for you to turn impartial. Impartiality is pleasing to God and good for your chances for salvation (or spiritual neck). The level of difficulty for you to belive me made me use the word “biggest” and I used the word “final” because any similar cases in the future would not be as difficult for you because your style, position and procedures would have been started and firmed up in this most difficult case for you. Difficult in the sense that it is difficult, very difficult for you to change position and style having started in a one sided and too hasty style.
But I still pray very hard that you pass this biggest test for both of us. For your soul’s salvation.
R. Miranda
P.S. I have not forgotten that you spared my life once. I can never think of being ungrateful to you. God will remember your mercy for me then and some reward is reserved for you but you have to continue to be merciful to remain reward-worthy.
True it is that the applicant specifically asserted that he could "never for a moment think of threatening you physically". However, the particular passage in the letter of 28 November 1994 that Mr Long had most objected to and had specifically referred to as being threatening to him was in essence repeated, the applicant, once again, referred to Mr Long's "spiritual neck" in the passage "impartiality is pleasing to God and for your chances for salvation (or your spiritual neck)."
Furthermore, the final paragraph above the applicant's signature also contains what I consider to be a significant reference to part of exhibit 12, namely the opening paragraph of exhibit 12.
I repeat, for the sake of being able to be easily understood, the opening words of exhibit 12:
It is not impossible that God sent me to you for your biggest and final test to determine whether you will qualify for eternal reward in heaven.....
The last paragraph of exhibit 19 reads:
But I still pray very hard that you pass this biggest test for both of us. For your soul's salvation.
I regard the repetition of the references to “spiritual neck” and "biggest test" and "soul's salvation" as a deliberate and repeated attempt by the applicant to intimidate Mr Long.
Other letters were sent by the applicant to Mr Long but it is unnecessary to repeat them.
On 19 December 1994 a meeting was held at the workplace and the applicant's employment was terminated.
The decision to terminate the applicant's employment had been made in advance of that meeting by Mr Long, in consultation with his managerial colleagues, and at least with Mr Ernie Bergman, who was both the union delegate and a member of the applicant's work group.
A pre-prepared letter dated 19 December 1994 and signed by Mr Long (exhibit 26) was handed to the applicant. The last paragraph of that letter reads as follows:
Because you continue to react to counselling and warnings on performance-related issues by sending me threatening letters I have no alternative but to terminate your services with ICI.
In my opinion there was a valid reason for the termination of the applicants employment, as that phrase is used within section 170DE(1) of the Act. That was a reason connected with the applicant’s conduct. That reason was the sending of the letter of 28 November 1994, in anger, with the deliberate intention to intimidate Mr Long. That alone, is in my opinion sufficient to warrant the termination of the applicant’s employment.
I also find that there was a further valid reason for the termination of the applicant’s employment. That was his conduct in repeating the most threatening parts of that letter, after being expressly directed at both a personal and a managerial level by Mr Long not to do so. This was done with the intention of intimidating Mr Long into concurring with the applicant’s view as to the way in which he, the applicant, should be dealt with in respect of the complaints concerning his performance and conduct.
SECTION 170DC OF THE ACT
The applicant was given ample opportunity to respond to the allegations made by Mr Long concerning the letter of 28 November 1994. That opportunity was given both at the meeting of 9 December 1994 and in correspondence. The applicant in a series of letters to Mr Long was clearly responding to the criticism made by him (Mr Long) concerning the sending of that letter of 28 November 1994.
In my opinion, the applicant was not given an opportunity to respond to the allegation that he continued to send letters of the same kind as exhibit 12, and that was also a reason for the termination of his employment.
However, in view of the fact that it was reasonable for Mr Long to regard, not only the letter of 28 November, but the continuation of the correspondence of a similar nature, as threatening to his physical safety, and the safety of the applicant’s fellow workers, it was reasonable for Mr Long to terminate the applicant’s employment without giving him the opportunity to respond. In other words, in my opinion, in respect of the second reason which I have set out for the termination of the applicant’s employment, I find in accordance with section 170DC(b) of the Act, that the employer could not reasonably be expected to give the employee the opportunity to respond to that particular allegation.
This was a case where summary termination of employment was both warranted and necessary. I should add that in coming to that view, I have had regard to section 15(1) of the Occupational Health and Safety Act, New South Wales (1983) which reads, quote:
"Every employer shall ensure the health, safety and welfare at work of all his employees."
Mr Long, as the site manager, had that duty put upon him.
There is no basis in my opinion for an argument that the termination of the applicant’s employment was either harsh or unjust or unreasonable within the meaning of section 170DE(2) of the Act. The applicant’s serious misconduct was such that summary and immediate dismissal was warranted.
The order that the Court makes is that the application be dismissed.
I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch.
Associate: Caroline Sternberg
Date: 24 July 1996
Appearances:
Applicant in person.
Counsel for the respondent: Mr S Benson
Solicitor for the Respondent: Mr M Butler
Lander & Rogers
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY
No. NI 0030 of 1995
BETWEEN:
REYNALDO MIRANDA
Applicant
AND:
ICI AUSTRALIA OPERATIONS PTY LTD
Respondent
BEFORE: PATCH JR
PLACE: SYDNEY
DATE: 7 MAY 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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