Ridler v Nylex Corporation Limited
[1997] IRCA 21
•10 February 1997
DECISION NO:21/97
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether termination of the employee’s employment was at the initiative of the respondent
Workplace Relations Act 1996
Industrial Relations Court Rules O 18
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154
Izdes v Bennett & Co Pty Ltd (1995) 61 IR 439
CHRISTOPHER BRETT RIDLER - v - NYLEX CORPORATION LIMITED
No. VI 2086 of 1996
Before: Judicial Registrar Millane
Place: Melbourne
Date: 10 February 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2086 of 1996
B E T W E E N :
CHRISTOPHER BRETT RIDLER
Applicant
A N D
NYLEX CORPORATION LIMITED
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 10 February 1997
THE COURT ORDERS THAT:
The applicant’s 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 2086 of 1996
B E T W E E N :
CHRISTOPHER BRETT RIDLER
Applicant
A N D
NYLEX CORPORATION LIMITED
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 10 February 1997
REASONS FOR JUDGMENT
In this case the applicant, who was employed by the respondent as a machine operator between October 1994 and 5 July 1996, seeks compensation alleging that the respondent terminated his employment in contravention of the Workplace Relations Act 1996 (the Act).
The respondent defended the proceedings on one basis only and that was that there had been no termination at its initiative; rather the applicant had abandoned his employment.
Pursuant to Order 18 of the Industrial Relations Court Rules the authenticity of both an audio taped recording of a conversation on 5 July 1996 between the applicant and “an agent, servant or representative of the respondent” as well as the copy transcript of the conversation, was admitted in favour of the applicant. The transcript of the conversation is a relatively short one and it is appropriate to set out its contents in full in order to understand what material the applicant relies on to discharge the burden of proof he carries of showing that there was termination at the employer’s initiative (see Exhibit A1):
“Hans: I just rang my boss. It is company policy now there is no more radio on the premises.
Have the Union been told about this one?
You can lose your job. Only under the circumstances that you stop playing music because they’re banned all over the place as a safety hazard.
Chris: I’m not stopping playing the radio.
Hans: Huh?
Chris: I’m playing the radio.
Hans: Yeah, I mean but you have to put it in the car.
Chris: No, I’m playing it while I’m working at my station.
Hans: Alright, Bob Humphries said to send you home. That’s it!
Chris: That’s it what?
Hans: The Union has been told safety hazard and all this.
Chris: So what?
Hans: I ask you just to turn off the radio and put it in your car.
Chris: I can do my job with a radio.
Hans: The company ban it just like the smoking policy.
Chris: What’s the health safety with the huh, radio.
Hans: If you move away you can’t hear the forklift.
Chris: But I can hear the forklift.
Hans:
Chris: I can hear the forklift.
Hans: But Chris it is banned by the company.
Chris: I’m still listening to the radio. So what’s happening?
Hans: I have to send you home.
Chris: And then what?
Hans: Well then probably your job is gone. I just spoke to Bob Humphries.
Chris: What, so I’m getting sacked.
Hans: Yes.
Chris: I’m getting sacked for listening to a radio.
Hans: Yea, company says, company’s telling you.
Chris: So you want me to go home.
Hans: That’s what I’ve been told.
Chris: So I go home. I’ve been sacked.
Hans: Yeah.”
As can be seen from the abovementioned transcript, which sets out most of the contents of the recorded exchange between the applicant and Hans Mielke (Mielke), his supervisor, if words alone were sufficient to satisfy the requirements of the Act, then Mielke clearly indicated to the applicant on the date of that conversation that the applicant was “sacked”. When I listened to the recording it was apparent to me that some of the conversation was not transcribed and was not clear enough for me to hear what was said.
Of course, the authorities in this Court show that the threshold question of whether there has been termination at the initiative of the employer is one that must be decided by reference to words, conduct and context in order to establish whether any termination was brought about the employer and was not agreed to by the applicant. The Full Court of the Industrial Relations Court of Australia in its decision in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200, provides the following guidance on this point:
“... Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.
....
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. ...”
In his decision in Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154, Justice Moore considered the abovementioned passages from the Full Court decision and offered the following observations:
“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”
In the case before the Court it was argued by the respondent that it had no intention of terminating the applicant’s employment and, indeed, its subsequent efforts to have him return and resume his shifts suggest that this was probably so. However, notwithstanding its positive intentions it is apparent from the views of Justice Moore in Rheinberger’s case that the intention of the employer is not decisive of the issue.
THE WITNESSES
The applicant gave evidence and called his father, Brett Ridler, who is also employed by the respondent.
The respondent called the following witnesses:
Hans Mielke (Mielke), the respondent’s night shift supervisor;
Yiu Kwong Au (Kwong), the respondent’s night shift foreman;
Robert James Humphries (Humphries), the respondent’s production/manufacturing manager;
Andrew Sylvester Van Dyke (Van Dyke), employed in the respondent’s mould department as well as being a union shop steward; and
Graeme Charles Hogan (Hogan), the union organiser with the Australian Liquor, Hospitality & Miscellaneous Workers’ Union.
BACKGROUND
It was common ground that in the two and a half years the applicant worked at the respondent’s plant he was permitted to bring his radio to work and play it during his night shift between 12.00am and 8.00am. Other employees on other shifts also availed themselves of the opportunity to play music.
The respondent manufactures car parts at its plant and the machinery operated at the plant is very noisy, particularly in the manufacturing area in which the applicant worked as a machine operator.
As I have already noted above, Mielke was at the relevant time the night shift supervisor.
The applicant was absent from his two shifts on Monday, 1 and Tuesday, 2 July 1996. It was common ground that during the course of the shift on Wednesday, 3 July 1996, Mielke questioned the applicant about the number of parts he had produced during the shift and in that conversation told the applicant to turn his radio off. It was apparent from Mielke’s evidence that he was not happy with the applicant’s productivity on that shift and attributed the low output to the applicant listening to his radio. The applicant was told to turn the radio off and not bring it back to work. If he did not turn it off he was told that he could go home. On that occasion the applicant was not sent home, however, it is not clear from the evidence whether or not he did, as he claims, turn off his radio. Although this was not directly put to the applicant it was said by Mielke that either during that shift or the subsequent one when there was a further argument about the applicant’s radio, the applicant responded to Mielke’s request to turn off the radio by saying words to the effect “who are you” and this drew a response from Mielke: “you should know that ... I’ll show you who I am”.
The applicant arrived for his shift on 4 July 1996 with his radio and was question by Mielke as to why he had brought his radio in and was playing it. During this shift it was common ground that because the applicant refused to turn off his radio, Mielke sent him home. Mielke alleges, and this allegation was denied by the applicant, that on this occasion he told the applicant to come back the next morning and work out the problem with the manager and a union representative. Both men agreed that there was no union representative available during the night shift. The reason given for asking the applicant to return the following morning and discuss the dispute with the management and a union representative was that by that time an argument had developed between the applicant and Mielke as to the applicant’s right to play his radio whilst performing his shift work. The reason the applicant went home on at least the second occasion was because he refused to turn the radio off as he took the view that he had a right to listen to it. It was his evidence that at some stage during the period when the argument emerged with Mielke about the use of the radio at his machine the applicant rang the union organiser, Hogan, and was informed by him that he was entitled to play his radio.
Humphries in his evidence corroborated Mielke’s allegation that on 4 July 1996 Mielke approached him and told him that he had sent the applicant home because he had refused Mielke’s request to turn off the radio and, further, that he had asked the applicant to attend the next day and “see management”. According to Humphries the applicant did not attend to see him and was not followed up on this. During his conversation with Mielke, Humphries claims that he was asked by Mielke what the company’s policy was on the use of radios. He then informed Mielke that he would check this. He also corroborated Mielke’s claim that early during the following night’s shift on 5 July 1996, Mielke rang him and asked for advice on what to do because the applicant had again arrived for his shift with his radio and was playing it. Both men agreed that Humphries then instructed Mielke to speak to the applicant and inform the applicant, first, that it was the company’s policy that radios were banned in the manufacturing area and, secondly, that the applicant was required to turn it off. If the applicant did not comply with that request Humphries instructed Mielke to ring him again. Shortly after the initial call Mielke rang Humphries again telling him that the applicant had refused to turn off the radio. They both confirmed that Humphries then instructed Mielke to send the applicant home after telling him to come in during the morning and sort the problem out with management.
According to Mielke he followed the instructions he received during each telephone conversation with Humphries on 5 July 1996 and, on the second occasion when he returned to the applicant, he told him that if he did not turn the radio off he, Mielke, was instructed to send the applicant home. During that conversation Mielke also alleges that the applicant made remarks along the lines of “so I am sacked”. According to Mielke that conversation took place at the machine at which the applicant was then working and when the applicant again refused to turn off the radio, Mielke asked the applicant into the office together with the night shift foreman, Kwong. Whilst all were present in the office Mielke informed the applicant that if he did not turn the radio off he would have to go home and return the next morning to speak to management.
It was common ground that during the conversation, which took place in the office, the applicant asked if he was being sacked. However, where the evidence diverges is on at least two points. The first relates to the question of whether Mielke responded to the question as to whether the applicant was being sacked in the negative and instructed the applicant to return the next morning for discussions with management. Mielke and Kwong essentially agreed that Mielke did convey that information to the applicant. The applicant, on the other hand, relies on the transcript as being a record of the final exchange between he and Mielke and says that there was no such comment made. The other matter on which the evidence diverges is that the applicant denies that Kwong said anything during the meeting in the office and points to the transcript of the tape which shows that there was no other person participating in the conversation recorded. In contrast, Mielke and Kwong agree that at one stage Mielke spoke directly to Kwong asking him if he understood what Mielke was saying to the applicant and Kwong responded in the affirmative.
The applicant conceded that there were two verbal exchanges during the last shift as well as acknowledging that he persisted in his refusal to turn off the radio. In his evidence-in-chief he alleged that at approximately 12.15am, shortly after his shift commenced, Mielke approached him at his machine and told him he wanted to speak to him in the office and instructed him to get his “things”. He alleged that he gathered up his coat and radio and as he walked to the office, which was near the machine at which he had been working, he was carrying his radio/cassette player and turned it on with the cassette in it. When he entered the office with Mielke and Kwong, the applicant allegedly recorded the conversation between he and Mielke. At the end of the recorded conversation he alleges that he left because he believed he had been sacked and there was “... no further discussion after the tape”. He denied being told to come in the next day and speak to the management or union officials either on that occasion or on any earlier occasion during that week.
When the applicant was cross-examined about the contents of the conversations both before and after he entered the office, the applicant was adamant that nothing more was said before he went into the office and, further, that the contents of the transcript covered the entire conversation in the office.
Both Mielke and Kwong asserted that when the applicant entered the office he was not carrying anything in his hands; much less a radio/cassette player. It was agreed by the parties that the office, which was Kwong’s office, has double glazing because of the noise generated by the machinery operated in the manufacturing area of the plant. Whilst both sides agreed that it was very noisy if a person was standing next to an operating machine, the respondent disputed the applicant’s contention that the noise was so loud that the conversation the applicant alleges he recorded in the office could not have occurred and have been recorded next to the machine before he and Mielke entered the office. It was the respondent’s contention that the recorded conversation, which was recorded without Mielke’s knowledge, referred to the conversation they had before the men entered the office.
Somewhat surprisingly the respondent and, in particular, Mielke and Humphries had never heard the tape or read the transcript of the conversation recorded before the date of the hearing. Humphries conceded that the conversation recorded, if it was the final conversation, amounted to Mielke terminating the applicant’s employment, although both Mielke and he denied that there was any intention to bring the applicant’s employment to an end at that time. Mielke was initially reluctant to concede that the recording was of his voice. He maintained that the second conversation in the office was one during which he clearly indicated to the applicant that he had not been sacked and that he was required to attend for discussion in the morning, meaning after 8.00am, when management and the shop stewards were available to sort out the problem.
It was common ground that the respondent at the relevant time allowed employees to bring radios to work and play them. Judging by the evidence given by the union representative and the union organiser, there was occasion around the time of the termination for some discussion about the use of radios and some suggested prohibition, but it did not last. It was apparent from the evidence that if a policy prohibiting the use of radios existed at the time, it was not then implemented across the board. Mielke’s evidence really suggests that he was unhappy about productivity and the effect the use of the radio was having on the applicant’s output. It seems to me that as a result of his discussions with Humphries about the existence of any policy, he fixed upon some idea of safety as an excuse to get the applicant to concentrate on his output.
There is no issue raised by the respondent concerning the applicant’s performance. In fact, its actions were all directed to having him return to work and resume his shift duties. His last shift was worked on the Friday morning. It is evident from the respondent’s conduct subsequent to the last shift that it took a number of steps to try and get the applicant to return to work. Humphries claims that by the following Tuesday he rang the applicant’s number and spoke to his father, Brett Ridler, and asked him whether the applicant would be attending his shift. He also left a message for the applicant to telephone. This call was not put directly to Brett Ridler, however, during cross-examination he did say that he was not spoken to by anyone else from the company other than the union representative. Brett Ridler was cross-examined about his discussion on the following Monday with the shop steward, Van Dyke, when it was alleged by Van Dyke that he asked the father to convey a message to the applicant along the lines that the applicant had not been sacked. At first Brett Ridler admitted the conversation but denied being asked to give such a message. He then qualified his response by saying that he was not asked to request his son to contact the shop steward and could not remember Van Dyke saying that the applicant was not sacked. However, he did recall saying that because of his involvement with the company he did not wish to be involved in the matter. Eventually he conceded that he may have been asked to contact his son but that he had told Van Dyke that he would have to contact him himself. My impression after hearing the father’s evidence was that he was trying to distance himself from the dispute and, in doing so, was not prepared to be responsible for conveying any messages whatsoever. I am satisfied on the evidence that it is more likely than not that Van Dyke did attempt to give him the message both that the applicant had not been sacked and that the shop steward wished to speak to the applicant.
I am further satisfied that because of their relationship and the father’s knowledge of the dispute, it is more likely than not that the father did inform the applicant of the contents of this conversation and that the applicant simply ignored the request to contact the shop steward.
Hogan, the union organiser, was called by the respondent to give evidence and I am satisfied that during his discussions with the applicant he too conveyed a message to the applicant that he had not been sacked and should return to work.
When giving his evidence the applicant made it very clear that after he had been asked to go home twice he formed the view that he did not want to return to the respondent’s plant because of the way he viewed his treatment by the respondent on this issue. At hearing even though he has remained unemployed over an extended period, he also expressed a strong opposition to returning to work with this employer.
Obviously an employer has a right to regulate the work place to best suit its operations. An employee has a duty to obey both a lawful direction from the employer. Arguably the direction must also be a reasonable one (see Izdes v Bennett & Co Pty Ltd (1995) 61 IR 439) however, there is a compelling case for saying that at common law all lawful orders must be obeyed not just reasonable ones (see “The Employee’s Duty to Obey Unreasonable Orders” G.J. McCarry (1984) 58 ALJ 327). Prima facie, an instruction to an employee not to bring a radio to work and not to play it at work is a lawful instruction inasmuch as there is no entitlement for an employee to have this entertainment facility in the work place. In this case, the employer had a long standing arrangement with employees which was permissive in the sense that they were allowed to use their radios during their various shifts. In context, the instruction to turn off the radio was an unreasonable one unless the policy was applied to all employees or there was a sound basis for denying the applicant the privilege afforded to other employees. As I have already noted, Mielke’s reason for the instruction was really tied to his concern about output and in the long run he failed to deal with the employee in a candid and straightforward way. Even at hearing, he was very reluctant to admit that the conversation recorded between he and the applicant, could be construed as him having acted to terminate the applicant’s employment during that conversation. Had it just been a matter of the applicant’s evidence against Meilke’s, I would not have been satisfied on Mielke’s evidence alone that the taped conversation represented only part of the conversations conducted during the last shift.
After hearing the evidence and listening to the recorded conversation a number of times, I was struck by a number of matters. The first was the applicant’s persistent refusal to turn off the radio even if he quite correctly felt that it was not fair when other employees were playing theirs and, even though because of this he felt he had a right to play his radio. The taped conversation when played conveys the very strong impression that the applicant was then challenging Mielke to sack him. It is the applicant who during the recorded conversation repeatedly refers to “getting sacked” and it is clear from the conversation that he directed the flow of conversation towards the issue of termination even though Mielke was then only asking him to turn the radio off and go home.
The background sound to the recorded conversation is that of loud machinery and the conversation is almost obliterated by the noise. Without the transcript, I am confident I would not have been able to have clearly interpreted much of what was said. This, in my view, is because of the loud background noise and it is consistent with the respondent’s claim that the conversation occurred next to the machine the applicant was working at.
My conclusion is that Mielke’s evidence as to the sequence of events is probably the most reliable account, even allowing for his attempts to draw back from the consequences of what he said during the recorded conversation. The evidence of Humphries and Kwong corroborates Mielke on the sequence of events. There was nothing in their demeanour or their evidence generally which would indicate that they had colluded in some way with Mielke to overcome the allegation made by the applicant. The applicant gave no evidence about the size of the radio/cassette player allegedly carried by him into the office to record the conversation. I would have expected both Mielke and Kwong to have seen the radio/cassette player if he was carrying it, and because the taped conversation ends abruptly, without any sounds accompanying his alleged departure from the office, I would have also expected Mielke and Kwong to have seen the applicant turn off the machine immediately after Mielke utters the word “Yeah”. By 5 July 1996 it is probable that the applicant had had enough and, by returning to work with his radio on each shift, set up a confrontation with Mielke. Furthermore I am satisfied that by then he had decided not to return to his employment because he then believed, at that time correctly, that the supervisor was acting unfairly over this particular matter.
Once the applicant had the tape of what he believed was evidence of him having been terminated, he determined not to return to work and that was in the face of a number of approaches to return including a letter dated 12 July 1996 from the employer to which letter he did not respond. I accept that by that time he had already sought legal advice, however, it is clear from the letter that his employment was still open to him and there was no reason to assume that if some discussion had been entered into with management and the union representative, some arrangement could not have been reached to resume his full time employment.
This is a difficult case because at first sight it is quite plain that Mielke was acting unreasonably. However, on examination of the evidence I am satisfied that the applicant contributed to the conflict and appeared bent on getting Mielke to agree that he was being sacked.
On the evidence I am not satisfied that the applicant has discharged the burden he carries of showing that there was termination at the initiative of the respondent in the sense that termination was the inevitable consequence of the conduct Mielke engaged in. In accepting as I have at least the evidence that on 5 July 1996 the applicant was invited to return during the following morning to discuss the matter in dispute with the management, it follows that the applicant’s failure to do this, as well as his failure to attend for work on the subsequent occasions when he was invited to do so by the respondent, brought about the cessation of his employment.
Accordingly, the order I propose to make is that the application is dismissed. Had I been persuaded to the contrary view that the tape and the contents of the conversation recorded represented the final exchange leading to termination at the respondent’s initiative, this is a case where the circumstances which existed at termination and shortly thereafter, must be considered on the question of remedy. By not responding to the need to have discussion and subsequently to the calls to return to work, the applicant in my view acted unreasonably. This is a factor which would weigh heavily against any award of compensation in all the circumstances.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The applicant’s 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 thirteen (13) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 10 February 1997
Solicitors for the Applicant: Kelly & Chapman
Counsel for the Applicant: Mr A. McNab
Representatives for the Respondent: Metal Trades Industry Association
Counsel for the Respondent: Mr B. Lacy
Date of hearing: 16 January 1997
Date of judgment: 10 February 1997
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