Pitman v B & M Graphic Print Pty Ltd
[1996] IRCA 421
•2 Sep 1996
DECISION NO: 421/96
CATCHWORDS
INDUSTRIAL LAW - claim of UNLAWFUL TERMINATION - VALID REASON - CONDUCT AND PERFORMANCE - OPPORTUNITY TO RESPOND - COMPENSATION
Industrial Relations Act 1988 ss170DC, 170DE, 170EENicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199;
Gibson v Bosmac Pty Ltd (1995) 60 IR 1;
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371;
Kacar and Australian Manufacturing Workers Union v Colorpak Packaging Pty Ltd (Murphy JR, 15 May 1996, unreported).
PITMAN v B & M GRAPHIC PRINT P/L
VI96/1815
Before: MURPHY JR
Place: MELBOURNE
Date of hearing: 2 SEPTEMBER 1996
Date of judgment: 2 SEPTEMBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI96/1815
BETWEEN:
PAUL PITMAN
Applicant
AND
B & M GRAPHIC PRINT PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 2 SEPTEMBER 1996
MINUTES OF ORDERS
THE COURT ORDERS AND DECLARES THAT:
The respondent has breached ss170DE and 170DC of the Act;
The respondent pay to the applicant the sum of $5,000.00 in compensation within 14 days.
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
VICTORIA DISTRICT REGISTRY
VI96/1815
BETWEEN:
PAUL PITMAN
Applicant
AND
B & M GRAPHIC PRINT PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 2 SEPTEMBER 1996
REASONS FOR DECISION
Delivered ex tempore - revised from the transcript
The applicant commenced employment with the respondent on 11 March 1996 in the bindery department. He is a qualified trades person. Before he was accepted for employment he had an interview with Mr Colin Gunn, the Production Manager, at which time he tendered a reference from his then employer which indicated the type of equipment that he was qualified to use. At the time of the interview with Mr Gunn he was asked what was his experience in relation to folders and told Mr Gunn that he believed he could operate a particular type of folder. He understood from his training that that folder was similar to the folder that he had been experienced on in his current employment. The applicant was offered the position. He was not placed on any form of probation. The Industrial Relations Act (“the Act”) provides that the operation of the Act can be excluded if employers set a period of probation in advance and it is reasonable (Reg.30B(1)(c)). For reasons which did not emerge in the evidence the respondent offered the applicant a position without subjecting him, as it was entitled, to do to any form of trial period or probation. It follows that from the time of his employment the applicant was entitled to the rights that the Act accorded him.
I am satisfied on the evidence of Mr John Gunn that the applicant's skill levels were less than what Mr John Gunn expected. Mr John Gunn was his supervisor on a day-to-day basis in the bindery department. Two or three days after the applicant commenced employment Mr John Gunn advised him of his perceived dissatisfaction with his performance in his duties and indicated to him that he intended to re-train him to the appropriate level that was satisfactory to him. The applicant, while having private reservations about this, agreed.
The two major incidents of lack of performance that emerged in the evidence concerned a particular job that the applicant had folded the wrong way. The applicant admitted his mistake. The second incident involved a job that the applicant had batched the wrong way. Again, the applicant admitted his mistake. The respondent took no decisive action in response to those two incidents but clearly they confirmed in Mr John Gunn's mind that the applicant, as far as he was concerned, had a deal of learning to do despite the formal qualifications that he held.
The other matter that emerged in the evidence was the question of overtime. The respondent is a busy, small printing enterprise and levels of overtime were being worked on virtually a daily basis. The applicant on at least one occasion had failed to work overtime as he had previously undertaken to do. There was a conflict in the evidence as to whether this had occurred on a number of occasions and it is unnecessary for me to resolve the conflict. I am satisfied, however, that after this incident where the applicant had failed to perform overtime that he had previously undertaken to perform there was a meeting in Mr Colin Gunn's office.
Mr Colin Gunn described the meeting as being an informal chat. He said "I sat him down for an informal chat about the lack of overtime" and told the applicant "to try a bit harder". He referred to a couple of previous incidents where things had “stuffed up” and he told the applicant to do better. He said "you could have put it as a warning". “I said a couple of things had to improve". But he also said in his evidence "I wasn't laying down the law as such". He did report the matter to the director, Mr Rosser.
The applicant gave evidence that a couple of weeks before he was dismissed he was contemplating borrowing some money and he went to see Mr Rosser to discuss the security of his position. Mr Rosser admitted that the conversation took place and said he advised the applicant that as far as he was concerned his employment was secure at that stage. Mr Rosser gave no evidence that he discussed with the applicant at that time the performance inadequacies that Mr John Gunn had observed.
These two conversations are crucial to the disposition of this matter. They indicate that within the employment relationship here there had been difficulties with the applicant's performance, but as far as the respondent was concerned they were not treating those difficulties as decisive at that point. Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 210 is authority that s170DC of the Act, which requires that before an employee is dismissed the employee must have the opportunity to defend himself or herself against the allegations made, means that employees are entitled to what has been described as a “fair go”.
The requirements of the Act are not formal but they are substantive and they require employers to give employees an opportunity to respond to the allegations that are putting the job in jeopardy, before they decide to terminate on performance grounds: Gibson v Bosmac Pty Ltd (1995) 60 IR 1; Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. The obligations imposed on employers in those circumstances, as I have said, are informal but they are substantive and they are relevant to the question whether or not the employer had a valid reason to dismiss the applicant.
For reasons that did not emerge convincingly in the evidence, on 27 May Mr Rosser terminated the applicant's employment. Mr Rosser's evidence was that he told the applicant that he was "not suited to the sort of work we did and he was not getting on with other employees". He also said in his evidence that the applicant was not taking instructions, was unreliable, the quality was down, and further that there were problems in relation to overtime.
It is clear, at least in relation to whether or not the applicant was getting on with other employees, that matter was not put to the applicant as a reason why he should have his employment terminated. There was nothing in the evidence to indicate that the applicant's performance in relation to whether he did overtime, or his performance on a day-to-day basis, had deteriorated significantly in the period from the time either Mr Rosser had told him that his job was secure or Mr Colin Gunn told him that he had to try harder. This is what makes me satisfied that the respondent has not discharged its onus of proof that it had a valid, in the sense of sound or defensible, reason to dismiss the applicant.
I am not satisfied on the evidence that the respondent has brought forward any incidents between those two meetings and the time of termination, that were discussed at the time of the termination and that either the applicant had an opportunity to respond to or that justified his termination of employment.
In the decision Gibson v Bosmac (above) the employee was dismissed because he failed to give a reason why he could not do overtime on a particular day. About six weeks earlier all employees, including the applicant there, had been given a final warning that they had to work reasonable overtime. On the Thursday the employee involved was told by his foreman that he had to do overtime on the following Saturday, and if he did not he would be dismissed. The applicant did not attend for overtime and he was dismissed. It was held that the employer had both a valid reason to dismiss him and that the dismissal was not harsh, unjust or unreasonable. The employer’s decision was upheld because it was reached after a reasoned process. The employer set out the requirement, put the requirement to the employee, and when the employee failed to comply he was dismissed.
Here, in the two conversations, the first with Mr Rosser, and the second with Mr Colin Gunn, the applicant was in a sense given an “exhortation to improve” (see Nicolson (above)). He was never told “if you refuse to do overtime in the future, or if your performance in the sense of a major folding incident happens again, you will be sacked”. That never happened to him and that deprives the employer's reasoning process of the validity that is required under the Act. It also puts the employer in breach of s170DC of the Act because it has not given the applicant the opportunity to respond. For these reasons I am satisfied that the respondent has breached both s170DE(1) and s170DC of the Act.
The respondent relied on the decision Kacar and Australian Manufacturing Workers Union v Colorpak Packaging Pty Ltd (Murphy JR, 15 May 1996, unreported) in relation to what was said at the interview. It was said that the applicant had misrepresented his qualifications. I am not satisfied that the two decisions are comparable. I am not satisfied that the applicant did misrepresent his qualifications or capacity at the employment interview with Mr Colin Gunn. He said in his evidence that he told Mr Gunn what he believed he was capable of doing and he believed that he was capable of operating the MBO folding machine because he had been told it was identical to the Stahl machine that he had worked on.
Remedy
It was common ground that reinstatement was impracticable. The applicant sought compensation for his wage losses in the sum of $7,780.00. The applicant when he was dismissed was paid his outstanding annual leave and one week's pay in lieu of notice. Three weeks later he obtained alternative employment earning $60.00 gross per week less. He remains in that employment and has given evidence that he has recently been promoted to a position of leading hand. He has sustained significant wage losses as a result of a substantial diminution in his overtime earnings as a result of the different overtime practices of his new employer.
In assessing compensation, again in Nicolson (above), Wilcox CJ said that the Court must consider what would have happened had the unlawful termination not occurred. Here, the applicant gave evidence that he believed he would have stayed at the employ of the respondent for some considerable time and attempted to progress up the ladder. Whether that would have been the case is always a matter of speculation but I am certainly satisfied that it is likely that the applicant would have stayed at the respondent at least for a period of three months had he not been dismissed on 27 May.
In assessing any compensation for the unlawful acts of the respondent, I am satisfied that his losses to date are the appropriate measure of compensation. The calculations presented by counsel for the applicant, I am satisfied, give an excessive version of the losses that the applicant has sustained as they are based on his gross earnings which include the amounts that he was paid in lieu of notice. From my own calculations it appears that the applicant was earning $884.00 gross per week over the period of his employment and I am satisfied that he has suffered a loss of about $316.00 per week since that time.
I propose to order the sum of $5,000.00 in compensation. This is based roughly on two weeks' loss of wages at the rate of $884.00 per week and $300.00 per week for 11 weeks. I am satisfied that it is appropriate that there be an order for compensation in all the circumstances here as the respondent has breached the Act as I have indicated and there have been no discretionary reasons brought forward by the respondent as to why an order for compensation should not be made.
I certify that this and the preceding six (6) pages
are a true copy of the reasons for decision of
Judicial Registrar Murphy as recorded in the transcript
and revised by the Judicial Registrar.
Associate: KAREN HALSE
Dated: 2 September 1996
APPEARANCES
Counsel appearing for the applicant: Ms Rachel Doyle Solicitors for the applicant: Slater & Gordon Appearing for the respondent: Mr James Hargraves,
Industrial AdvocateRepresentative for the respondent Printing Industries Association
of AustraliaDate of hearing: 2 SEPTEMBER 1996 Date of Judgment: 2 SEPTEMBER 1996
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