Richard Adrian Jason Chard v J Gadsden Pty Ltd
[1995] IRCA 305
•6 Jul 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2609 of 1994
B E T W E E N :
RICHARD ADRIAN JASON CHARD
Applicant
AND
J. GADSDEN PTY LTD
Respondent
Before: Judicial Registrar Fleming
Place: Melbourne
Date: 6 July 1995
REASONS FOR JUDGMENT
Summary of Evidence and Findings of Fact
The applicant who is 25 years of age commenced employment with the respondent in approximately June 1989.
On 8 April 1993 the applicant was involved in an industrial accident. He was inside a printing press and it was turned on while he was inside and he was crushed from the chest down.
“Put through a ringer, I am missing stomach intestines and bowels, they were both pushed out at the time”.
The respondent tendered a record of attendance (Exhibit R3) which records the applicant’s poor punctuality in the 12 months preceding the accident. It was uncontested evidence that the applicant was quite regularly late but that he never received a written warning for his lateness prior to April of 1993 which was the date of his accident. It is the Court’s view that the respondent did not enforce a strict punctuality code especially in relation to Mr Chard and especially in the 12 month period preceding Mr Chard’s accident in April 1993.
Mr Chard’s punctuality however deteriorated after his accident and he was formerly warned on four occasions. I will deal with each warning separately.
First Warning - 27 April 1994
On a date approximately 12 months after his accident Mr Chard was 5½ hours late for work. Mr Chard’s evidence was that he did not believe he was due at work on the day he was 5½ hours late because he believed it was his last day of annual leave. He gave sworn evidence that his annual leave form had been altered and he therefore refused to sign the written warning. Furthermore the application for leave form tendered by Mr Chard does appear to have been altered. The Court however draws no inferences from this.
Second Warning - 5 August 1994
Mr Chard signed this warning. He acknowledged that he had been late on a number of occasions in the last three months. Mr Chard claimed that the reasons for his poor punctuality included stomach problems, moving house and a car breakdown.
Third Warning - 11 October 1994
Mr Chard signed this form and agreed his punctuality had not improved. He stated that his poor attendance was due to suffering from abdominal pains but that he:-
“made every best attemt [sic] to make it into work when possible. Recently I have abdominal problems which the company fails to acknowledge. I will try hard to be punctual and to noterfy [sic] the company of any problems”.
Fourth Warning - 7 November 1994
This was the fourth written warning for poor punctuality. Mr Chard claimed abdominal pains for his poor attendance and medication problems.
The consistent theme throughout the four warnings is the complaint by the applicant of ongoing medical problems namely abdominal problems.
The Termination of Employment
On 2 December 1994 the respondent terminated the employment of Mr Chard and the reason given was neglect of duty.
In this case I am satisfied that there was a persistent failure to attend for work on time despite the expressed concern of the respondent and the formal written warnings of the respondent and that the respondent did have a valid reason for the termination of employment related to the conduct or performance of the applicant.
However having regard to the circumstances of the applicant in this matter and in particular his abdominal injury and the explanation of continual abdominal problem offered to the respondent for his lateness I am satisfied that the decision to terminate the applicant’s employment by reason of his neglect of duties based on his lateness was harsh. This is particularly so in light of there being no action by the respondent to establish the ongoing prognosis of the applicant’s injury and there is no evidence to that effect tendered by the respondent.
Remedy
The applicant has not been employed on a permanent basis since the date of termination of his employment. He has been able to obtain some courier work of a temporary nature and has received approximately $400 for this work. The applicant informed the Court that he would like to return to work for the respondent but that he could not guarantee his punctuality. I am inclined to accept this is so particularly because of his evidence and his acknowledgment that his punctuality was poor.
I have decided that in the circumstances it would not be impracticable to order the reinstatement of the applicant. I have made this decision as reinstatement is the primary remedy of the Act. The applicant seeks reinstatement and the respondent has not provided evidence to suggest that it cannot provide suitable employment to the applicant subject to the applicant’s own limitations. Section 170 EE(1) of the Act gives the Court an overriding discretion to refuse to order reinstatement in circumstances where reinstatement is impracticable. In Liddell v Cheryl Lembke T/as Cheryls Unisex Salon (Decision No. 40 of 1994)
Wilcox CJ and Keely J stated that “impracticable” does not mean “impossible,” it means more than “inconvenient” or “difficult.”
While it may be inconvenient and difficult for the respondent to reinstate the applicant, taking into account the exceptional circumstances in this case relating to Mr Chard’s industrial accident and the injuries he sustained as a result, I propose to order reinstatement.
Accordingly, I order Mr Chard be reinstated and provided with ongoing employment at his previous rate of payment.
I have also decided to make an order for payment by the respondent to the applicant of the amount of remuneration lost by the applicant between the date of termination of employment and the date of reinstatement. That amount is based on the calculation in Exhibit A4 of $1,693 per month for 6 months less 4 weeks pay in lieu of notice and less $400 income earned, which amounts to $8,065.
THE COURT ORDERS:
That in terminating the employment of the applicant the respondent contravened Division 3 of Part IVA of the Industrial Relations Act.
That the applicant be reinstated by the respondent to the position in which he was employed immediately prior to the termination or to another position on terms and conditions no less favourable to those on which he was employed immediately prior to the termination.
The reinstatement be effective from the date of this order.
The respondent pay to the applicant the sum of $8,065.00, being the amount of remuneration lost by the applicant as a result of the termination.
That the period between the date of termination and the date of reinstatement be treated as continuous employment of the applicant by the respondent for all purposes.
That the time for payment is 21 days from the date of this order.
I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.
Associate:
Dated: 6 July 1995
Applicant in person
Representative for the Respondent: Mr Alan Turnbull
Australian Chamber of Manufacturers
Date of hearing: 15 May 1995
Date of judgment: 6 July 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - HARSH, UNJUST OR UNREASONABLE - REMEDY - REINSTATEMENT.
Industrial Relations Act 1988 ss.170 EE(1)
CASES:
Liddell v Cheryl Lembke T/as Cheryls Unisex Salon (Decision No. 40 of 1994) Wilcox CJ and Keely J
RICHARD ADRIAN JASON CHARD -v- J. GADSDEN PTY LTD
No. VI 2609 of 1994
Before: Judicial Registrar Fleming
Place: Melbourne
Date: 6 July 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2609 of 1994
B E T W E E N
RICHARD ADRIAN JASON CHARD
Applicant
A N D
J. GADSDEN PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Fleming 6 July 1995
THE COURT ORDERS:
That in terminating the employment of the applicant the respondent contravened Division 3 of Part IVA of the Industrial Relations Act.
That the applicant be reinstated by the respondent to the position in which he was employed immediately prior to the termination or to another position on terms and conditions no less favourable to those on which he was employed immediately prior to the termination.
The reinstatement be effective from the date of this order.
The respondent pay to the applicant the sum of $8,065.00, being the amount of remuneration lost by the applicant as a result of the termination.
That the period between the date of termination and the date of reinstatement be treated as continuous employment of the applicant by the respondent for all purposes.
That the time for payment is 21 days from the date of this order.
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