Panagiota Vlahos v Chambion Hosiery Pty Ltd

[1995] IRCA 619

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - PROCEDURAL FAIRNESS - whether failure to perform reasonable request within scope of duties resulted in HARSH, UNJUST OR UNREASONABLE TERMINATION.

Industrial Relations Act 1988 ss.170DB, 170DC, 170DE & 170EDA.

CASES: Gibson v Bosmac Pty Limited (1995) 130 ALR 245

PANAGIOTA VLAHOS -v- CHAMBION HOSIERY PTY LTD

No. VI 3330 of 1995

Before:  Judicial Registrar Murphy
Place:  Melbourne
Date:  10 November 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 3330 of 1995

B E T W E E N :

PANAGIOTA VLAHOS
Applicant

AND

CHAMBION HOSIERY PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Murphy  10 November 1995

THE COURT ORDERS:

1. The application is dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 3330 of 1995

B E T W E E N :

PANAGIOTA VLAHOS
Applicant

AND

CHAMBION HOSIERY PTY LTD
Respondent

Before:           Judicial Registrar Murphy
Place:              Melbourne
Date:              10 November 1995

REASONS FOR JUDGMENT
(Ex Tempore - Revised from draft transcript)

In this proceeding the central issue is whether the Respondent had a valid reason to terminate the Applicant's employment.  The Respondent is involved in the textile industry; it employs some 47 people at its factory where it makes hosiery and socks.  Its workforce is predominantly female and comes from a variety of ethnic backgrounds.  The Applicant has been involved in the textile industry for some 30 years and is of Greek origin.  Although the Applicant has required the assistance of a Greek interpreter in the hearing, I am satisfied that she has a reasonable understanding of English.

She commenced employment with the Respondent in October 1994 after referral from the CES.  Her duties were primarily mending of garments.  The evidence of the Respondents was that its employees undertake a variety of duties within the factory.  In mid-May 1995, the Respondent received an urgent order for a volume of socks.  The general manager of the Respondent, Mr Schiavello, gave evidence that it was necessary to re-arrange the employees to meet this urgent order.  One of the tasks that had to be performed was working on a machine that turned socks.  The work involved placing inside out socks on to stands on the machine which automatically turned them right-side out.  The socks would then be pressed, labelled and boxed for dispatch.

On 16 May, Schiavello asked the Applicant to cease duties on mending hosiery and to commence on the sock turning machine.  His evidence was that he showed the Applicant how to perform the work.  The task was a very simple one, and could be performed either standing up or seated on a high stool or chair.  Schiavello's evidence was that the Applicant readily agreed to perform the duties.  He left the Applicant and returned after a couple of hours.  At that point the Applicant refused to continue the duties and sought other duties.  Schiavello then told the Applicant on a number of occasions, “pleaded with her”, that she had to perform the work, as she was the only employee available and the job was urgent.  The Applicant refused.

It was the Applicant's evidence that she in fact worked the whole of the day on the machine, but I accept the Respondent's evidence that she only worked for a limited period on that machine on that day.  When Schiavello asked her to return to duties on the machine, she said to him that she did not like the job and wanted a job packing.  Schiavello replied that she could not do such a job because she would need to be trained in those duties.  I accept his evidence that on that day he warned her four times to perform the duties.  On the next day, when the Applicant commenced work, she went back to her mending duties.  Schiavello approached her and again requested her to perform the duties on the sock machine.  Again the Applicant refused. Schiavello then arranged for a written warning to be prepared and handed to the Applicant.  That warning reads:

“Dear Panagiota,

From repairing pantyhose we need you to turn socks to complete an urgent order.  Please understand if you refuse you do not give me any other alternative but to dismiss you from your duties.

Ori Schiavello,

General Manager.”

He handed the written warning to her.  He explained it to her and asked her if she understood it.  He told her that if she did not understand it to check it with her sister-in-law who worked for the Respondent a short distance from the Applicant on another machine.  His evidence was that he said to the Applicant: "I beg you" to do the duties.  He told the Applicant he would be back a short time later to ascertain her response.  When he returned an hour and a half later, the Applicant maintained her refusal to perform the duties.  He then advised the Applicant that, by refusing to perform the duties, she had left him no alternative but to terminate her employment.  She was given a week's notice.

The Applicant's version of the conversation was that she told Schiavello that the duties were too heavy, and requested him to get some younger employees to perform them.  She said that as a result of performing the duties the preceding day she had suffered back pain and thus she could not perform them.  She did not advise the Respondent of the back pain for fear of being terminated.  She maintained in cross-examination that the job required lifting and dragging of boxes which was too heavy for her.  This evidence was disputed by Schiavello.  The Applicant maintained that Schiavello's wife had given the direction for the work and that it required dragging boxes.

The Applicant's evidence on this aspect of the duties was most unsatisfactory.  She called no witnesses to support her version of what the duties were.  Schiavello's wife was not called either.  On the evidence before me I prefer to accept Schiavello's evidence that the duties he requested the Applicant to perform were very light.

After the Applicant had been advised that she had been given a week's notice, on the next day she saw a doctor and produced a medical certificate certifying that she was not fit for any heavy occupation for 6 months as a result of chronic back strain.  She gave this to the CES and it found its way to the Respondent.  I place little weight on the certificate.  The author was not called.  I am satisfied that at the time of the giving of the notice, Schiavello had never been told of any back condition of the Applicant, and that the nature of the duties was not such as to make such a condition a likely result of those duties.

There is a direct conflict between the evidence of the Applicant and Schiavello in relation to the events of 16 and 17 May.  The central area of conflict is whether the Applicant ever gave Schiavello any reason for refusing to perform the duties.  On all areas where there is a conflict in the evidence, I prefer the evidence of Mr Schiavello.  I am satisfied that his request to the Applicant to perform the duties was a reasonable request.  I am satisfied that the duties were of a very light nature and within the Applicant's capabilities.  I am satisfied that the Applicant proffered no reason for refusing to perform the duties.  In particular, I am satisfied that at no time in the face of at least four verbal requests to perform the duties and one written warning, did the Applicant suggest that the duties were too heavy or that she required assistance or modification of the duties.  Given the light nature of the duties and the urgency of the task of the Respondent, I am satisfied that had such a request been made it would have been met.

I am further satisfied that the Applicant understood the request that was being made of her by Schiavello and further that she understood that unless she carried out the request to perform the work, her employment would be terminated. It follows from these findings that I am satisfied that the Respondent had a valid reason to terminate the Applicant's employment, namely her failure, without reasonable excuse, to obey a reasonable order. The Respondent has discharged its onus under section 170EDA of the Industrial Relations Act 1988 (“the Act”) and has not breached section 170DE(1) of the Act.

I am further satisfied that in this case the requirements of section 170DC of the Act were met. The Applicant understood the contents of the verbal and written warnings. She had an opportunity to respond to the contents of the warnings and I am satisfied that she was given a fair go.

The decision of the Respondent to terminate the Applicant's employment was not in breach of section 170DE(2). The request made by the Respondent was reasonable, and the Applicant had an adequate opportunity to bring forward any matters in mitigation of her refusal to perform the duties.

In her evidence she maintained, in effect, that the Respondent maintained a reign of terror whereby employees were fearful of reporting any workplace injuries or making requests for assistance for fear of termination of their employment.  No corroborating evidence was presented to confirm this picture, and I am satisfied that it was not the case.  Having regard to the reasonable nature of the request made by the Respondent and the failure of the Applicant to present any excuse to it, I am not satisfied that the termination can be characterised as harsh, unjust or unreasonable as these ordinary non-technical words have been considered in numerous cases, see e.g:  Gibson v Bosmac Pty Limited (1995) 130 ALR 245.

The Applicant also alleged that the Respondent had failed to pay her all her entitlements upon termination. The nature of the failure by the Respondent was not made clear. I am not satisfied that the Applicant has made out any breach of the Respondent's obligations. It was common ground that upon her termination she was given a week's notice which she was required to work out. The Respondent has therefore complied with its obligations under section 170DB of the Act. The Applicant has therefore failed to make out a case that any provision of the Act has been breached. The application must be dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. The application is dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:                   
Dated:  23 November 1995

The Applicant in person

Solicitor for the Respondent:             Mr Aurricchio from
  Australian Chamber of Manufactures

Date of hearing:  10 November 1995
Date of judgment:  10 November 1995