Paul Janicek v ICI Dulux Australia

[1995] IRCA 63

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1955 of 1994

BETWEEN:

PAUL JANICEK
Applicant

AND

ICI DULUX AUSTRALIA
Respondent

EX TEMPORE REASONS FOR JUDGMENT

1 March 1995  Judicial Registrar Staindl

Introduction

In 1989 Paul Janicek (“the applicant”) commenced employment with ICI Dulux Australia (known as Dulux).  He performed a variety of duties in ensuing years but in October 1994 he was working as a machine operator on a paint tin labelling machine.  Empty paint tins were labelled and then fed onto a metal conveyor belt.  The tins ran along the conveyor belt and were stacked on pallets.  It was this latter function for which the applicant was responsible through the machine known as the “blue monster”.

Incident Leading To Dismissal

At about 11:45am on 11 October 1994 the applicant was seated at his position on the blue monster.  He had leaned back in his seat and had his eyes closed.  This much is common ground between the parties.  The applicant says his eyes were shut for a short time only because he is short sighted and he occasionally shut them and rubbed them.  Mr Philip Handby, one of the applicant’s fellow employees, was nearby and observed that the applicant’s eyes wee shut over a period of 5-8 minutes.  Although Mr Handby did not observe the applicant continuously during this period I am satisfied that when he looked over the applicant’s eyes were shut.  I am satisfied that the applicant was not paying attention to the operation of the machine:  I think it likely that he was “cat‑napping”, although he was not sound asleep.

The applicant stated that he heard a couple of tins fall to the floor and thought that someone was playing a game to wake him.  However a tin or tins were then thrown at him.  Although later that day he said that he was hit on his head by a tin, he gave evidence that he was either hit or a tin landed so close to him as to cause a “blast” which caused immediate and severe pain in his ear.  The applicant’s evidence on this point was unsatisfactory:  there is a significant difference between the physical contact from an object as compared to the noise or blast from that object landing nearby.

Furthermore there was no evidence of any physical mark or injury to the applicant even though he mentioned to his supervisor that he had been injured some few minutes later.  The applicant also attended a doctor the following day but likewise there was no evidence of any injury or mark.

Two witnesses, called by the respondent, gave evidence about this incident.  Mr Handby said he saw Mr Peter Williams drop some tins onto the conveyor belt close to the applicant, but was sure that none of the tins had hit him.  Likewise Mr Williams himself gave evidence that some tins had fallen from a pallet and that he picked up three or four one-litre tins in one hand and dropped then on to the conveyor belt from a height of about 8-10 inches.  His approach had been from behind the applicant so that he could only see the back and one side of the applicant’s head.

Mr Williams said he was about 2-3 feet away from the applicant at this time and was sure that the tins did not bounce or catapult into the applicant.  Although he stated that he was quite sure of this it is surprising that he saw no reaction from the applicant.  I say this for two reasons:  first the evidence of Mr Handby seemed to indicate that the applicant had an immediate reaction to the tins being dropped, and secondly I am satisfied that the applicant would have heard the tins being dropped so close to him, even allowing for it being a very noisy work environment.

In any event I am satisfied that the applicant was not hit by a tin and that he received a start from the tins being dropped onto the conveyor belt near him.  He immediately left the blue monster and spoke to his supervisor Mr Graham Jordan.  Both Mr Jordan and the applicant say that the applicant stated that he had been injured after being struck on the head.  The applicant gave evidence that he also told Mr Jordan that he was going home but I prefer Mr Jordan’s evidence that the applicant did not say this.  In my view it is likely that Mr Jordan would have responded somewhat differently if the applicant had said this.

Nevertheless Mr Jordan’s response - or lack of it - is unsatisfactory.  He had been told by a worker for whom he is responsible that he (the worker) had been struck on the head and had concussion.  Mr Jordan did nothing about this and made remarkably little enquiry.  He explained this by saying he had been constantly harassed by the applicant in recent months over various issues.  He frequently wanted to leave early and Mr Jordan viewed this as perhaps being another such attempt.  He could not see any blood or other injury to the applicant and so did nothing further about it.  However, where a worker’s health or safety is concerned, particular care needs to be taken.

The respondent then went home, although he did two things prior to this.  First he “clocked off” with his timecard and secondly he told a fellow employee that he was going home (although this did not come to the employer’s attention until a couple of days later).

At about 12:45pm, one hour after the incident with the tins, the applicant rang Ms Anne Bramfit from the respondent.  She was in a supervisory position and was an appropriate person for the applicant to speak to.  He told her that he was at home and in shock after having been hit on the head with a tin.  She asked him if he had been to the health care centre and he said no.  During the conversation the applicant said that Peter Williams had thrown the tin and then later said it was Philip Handby.  Some discussion occurred as to what the applicant should do, and it concluded by Ms Bramfit saying that she would see him at work tomorrow.

Reasons For The Dismissal

Dulux dismissed the applicant summarily.  In a letter dated 13 October 1994 to the applicant the reason is described as being “serious misconduct”.  In the hearing before me there were 4 aspects related to this incident which are said to amount to serious misconduct and it was argued by Dulux that each of these justified summary dismissal.

The four aspects are:

1.Sleeping on duty;

2.Feigning an injury, together with a false allegation that a fellow employee had thrown a tin at the applicant;

3.Not attending the health centre to report an injury; and

4.Leaving the work site without reporting it to a supervisor.

Procedure Leading Up To Dismissal

On the whole, Dulux conducted a careful and appropriate investigation of this incident, although there is one critical failing to which I refer in due course.

Mr Andrew Stinson, Dulux’s personnel manager at the Clayton site, became involved in this incident on the afternoon of 11 October.  He inquired of Mr Jordan about whether or not the applicant had told him that he was leaving the site.  He contacted the applicant’s senior union delegate at the site, Mr Peter Able and told him that he was intending to investigate the matter.  On the following morning he spoke to Mr Handby and Mr Williams about the incident in the presence of Mr Able.  He asked them whether they would be prepared to make a statement to which they agreed.  These statements were prepared separately by these two men.

On 12 October Mr Stinson then conducted an interview with the applicant, Mr Able (the union delegate) and Mr Derek Balderson, a team co-ordinator at Dulux.  Mr Balderson was to act as a witness in the interview.  What occurred at this interview is hotly contested.  The applicant says that he was not told that he was facing the possibility of being dismissed (whether summarily or not).  He also says that the four reasons said to justify the dismissal were not outlined to him.  This evidence gains some support from Mr Able, although Mr Able’s recollection of the whole meeting was rather hazy.  Mr Stinson was adamant that he stated to the applicant that he was considering dismissing him, and then outlined the reasons.

I accept that the applicant was aware that his continued employment was in jeopardy.  I also accept that the applicant was made aware in general terms of three of the four allegations said to justify his dismissal.  These three are that he slept on duty, did not report to the health centre and left work without reporting it to a supervisor.  However, I am not satisfied that it was put to the applicant that he had feigned an injury and falsely accused two fellow workers.  In addition to the evidence already mentioned I rely in particular on that given by Mr Balderson for these finding.

It seems to me that all of the allegations should have been put clearly to the applicant.  I have found that he was made aware in general terms of three of the allegations but it would have been desirable for these to have been clearly spelt out at the outset.  I have found one of the allegations was not put to him and it appears to me - and I might say to Mr Stinson - that this was the most important allegation.

It follows that the applicant was present at the interview not knowing about one important allegation made against him. In this situation, it can hardly be said that he was accorded procedural fairness and in this regard the employer has not complied with s.170DC of the Act.

Was Summary Dismissal Justified?

This aspect of the case has troubled me deeply.  For the sake of clarity I briefly reiterate my findings.  The applicant was not paying attention when operating the paint labelling machine.  Some tins were dropped onto the conveyor belt close to his head but no tins actually hit him.  He was startled and immediately went to his supervisor to tell him he had been injured.  He told a fellow employee that he was going home and then clocked off and went home.  He rang Ms Bramfit from home and told her, amongst other things that one or both of two named employees had thrown a tin at him and hit his head.

It seems to me likely that the applicant in fact believed that someone had thrown a tin at him.  He was startled by the noise of the tins being dropped and believed it could only have been Mr Williams or Mr Handby.  He was somewhat upset at this treatment and reported it to Mr Jordan as an injury rather than just having been startled.

In the telephone call with Ms Bramfit he named the two people he believed were the only ones who could have thrown the tin.

I deal firstly with the last two of the allegations, namely that the applicant failed to report an injury to the health centre and that he left his work site without informing a supervisor.  As may be recalled the applicant did in fact report his injury to his immediate supervisor Mr Jordan.  Mr Jordan, in his words, shrugged it off as not serious.  Having regard to this the respondent’s criticism of the applicant seems somewhat unfair.  It would have been a very easy matter for Mr Jordan to tell the applicant to go to the health centre but instead the applicant’s complaint was basically ignored.  In my view the important aspect to this allegation is that the applicant did report the injury, albeit he did not go to the health centre.

The importance of reporting to a supervisor before leaving the work site was stressed as a matter of safety by Dulux.  In the event of a fire - especially in a plant where volatile products were manufactured - it was imperative that Dulux knew who was on site.  However, I have previously noted that the applicant informed another employee of his departure and also clocked off.  The applicant rang Ms Bramfit about one hour later and during this period it was the applicant’s lunch break when it was conceivable that he would be off-site in any event.  Accordingly there was only a limited time during which the applicant was absent without a supervisor having been informed and this absence is ameliorated by the other steps taken by the applicant.

In my view the above two maters do not have great significance as reasons to justify summary dismissal.  However it is the remaining matters which have caused me more difficulty.  The applicant’s inattention to his duties was for a fairly brief period.  On my understanding of the evidence the machine operated by the applicant did not require others to be in attendance whilst the machine was working, but it was largely automated.  The evidence also indicates that people could “walk around” while the machine was in operation and from this I infer that it was not necessary for anyone to be actually and continuously physically present whilst the machine was working.  Although the applicant’s inattention was not a trivial matter it was not in my view sufficient to justify summary dismissal.

The most serious allegation against the applicant relates to his feigning of an injury and reporting that one or two fellow employees had thrown a tin at him.  Although I have found there was no physical injury to the applicant, I do accept that he was somewhat upset and startled by the tins being dropped onto the conveyor belt close to him.  He thought that Mr Williams and/or Mr Handby had thrown a tin to startle him and it is in this context that he named them as having thrown a tin which hit him (although, as noted, he retreated somewhat from this version when giving evidence).

I have come to the view that this conduct does not justify summary dismissal.  In the words of sub-paragraph 170DB(1)(b) it is not misconduct of a kind such that it would be unreasonable to require the employer to continue his employment during a period of notice.  In applying this test I have also had regard to the notion of what constitutes serious misconduct at common law.  In North -v- Television Corporation Ltd 11 ALR 599 Smithers and Franki JJ described misconduct as:

“... conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.”

In Williams -v- Printers Trade Services (1984) 4 IR 82 at 85 Toohey J described summary dismissal as a “drastic step”. Applying these tests in considering s.170DB I do not consider the applicant’s behaviour to amount to serious misconduct.

Remedy

Counsel for the respondent argued that if I found that the respondent should not have summarily dismissed the applicant then I should find that his reinstatement is impracticable.  I reject this submission.  As was noted by their Honours Wilcox CJ and Keely J in their joint judgment in Liddell -v- Lembke (unreported, 15 December 1994, NI 200 of 1994):

“But although ‘impracticable’ does not mean ‘impossible’, it means more than ‘inconvenient’ or ‘difficult’”.

In the same case Gray J said:

“Reinstatement is therefore required if it can be done.  If the employer is still employing or able to employ someone to perform the same or similar tasks, then reinstatement will be practicable.  Its practicability does not depend on notions of loss of confidence in the employee.”

Discipline Procedure

There is one further point that needs to be addressed.  Dulux had a discipline procedure in place at the time of the applicant’s dismissal.  This provided for a counselling session, a verbal warning, a first (written) warning and a final (written) warning prior to termination.

The evidence established that this procedure was widely known by Dulux’s employees and I accept that it constituted part of the applicant’s term and conditions of employment.

The applicant had received a first written warning on 2 February 1994 although it was headed “a first and final warning”.  He was entitled to a further warning.  This incident can certainly be regarded as a final warning to the applicant.

Order Of The Court

The orders of the Court will be that the applicant be reinstated in his employment.  The applicant’s continuity of employment should be maintained and he should be paid the remuneration lost because of his termination.

I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl.

Associate:

Dated:  1 March 1995

Counsel for the Applicant:	Ms R. Frenzel
Solicitor for the Respondent: Counsel for the Respondent:	Messrs Corrs Chambers & Westgarth Mr O. P. Holdenson
Date of hearing:	1 March 1995
Date of Judgment:	1 March 1995

CATCHWORDS

INDUSTRIAL LAW - termination of employment - summary dismissal - serious misconduct - disciplinary procedure - whether re‑employment impracticable.

Industrial Relations Act 1988, ss.170DB, 170DC and 170EE.

In North -v- Television Corporation Ltd 11 ALR 599

Williams -v- Printers Trade Services (1984) 4 IR 82

Liddell -v- Lembke (unreported, 3 November 1994, NI 200 of 1994)

PAUL JANICEK -v- ICI DULUX AUSTRALIA

NO. VI 1955 of 1994

Before:     STAINDL JR

Place:      MELBOURNE

Date:       1 MARCH 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1955 of 1994

BETWEEN:

PAUL JANICEK
Applicant

AND

ICI DULUX AUSTRALIA
Respondent

MINUTES OF ORDER

1 March 1995  Judicial Registrar Staindl

THE COURT ORDERS THAT:

1. The respondent reinstate the applicant by reappointing him to the position in which he was employed immediately before the termination of his employment.

2. The respondent pay to the applicant the remuneration he would have received but for the termination.

3. The applicant’s employment with the respondent be treated as being continuous for all purposes.

4. The matter is adjourned to 9:30am on Friday 3 March 1995, with a stay being granted until that time in respect to orders 1 to 3.

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