Spasoje Milakovic and McWilliams Wines Pty Ltd

[1994] IRCA 61

INDUSTRIAL RELATIONS
COURT OF AUSTRALIA  NI No. 194 of 1994
SYDNEY DISTRICT REGISTRAR        

BETWEEN:

Spasoje MILAKOVIC
  Applicant

AND:

McWILLIAMS WINES PTY LTD
  Respondent

14 October 1994   TOMLINSON JR

THE COURT ORDERS THAT:

1. The respondent to pay to the applicant the sum of $8474.55.

1. Such payment to be within 21 days of the date of this Order.

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

INDUSTRIAL RELATIONS
COURT OF AUSTRALIA  NI No. 194 of 1994
SYDNEY DISTRICT REGISTRAR        

BETWEEN:

Spasoje MILAKOVIC
  Applicant

AND:

McWILLIAMS WINES PTY LTD
  Respondent

Reasons for Judgement

14 October 1994
TOMLINSON JR

This application is made under Section 170 EA of the Industrial Relations Act 1988 (‘The Act”) and the applicant seeks the following relief:

1.declaration that the termination of his employment contravened Part VI A of the Industrial Relations Act 1988.

2.order that the respondent reinstate the applicant to the position he held prior to termination.

3.      order that the employer pay compensation in the sum of $25,000.

The Court heard evidence from:

1.      Mr Milakovic the applicant

2.      Mr Jim Bakirtzidis the bottling supervisor

3.      Mr Ian McWilliam the manager and part owner of the respondent

4.      Mr Philip Skinner, the administration manager

The applicant is fifty years of age, having been born in Yugoslavia on 11 April 1944.  In 1971 he migrated in Australia and in 1972 his wife commenced working for the respondent.  The applicant commenced employment with the respondent on 10 April 1978 and in 1982 he had one month off work with back pain.  In October 1991 the applicant’s wife resigned from the respondent having being diagnosed with terminal cancer.  The applicant’s wife died on 4 February 1993.

In affidavit dated 27 April 1994 the applicant stated that on 19 May 1993 he suffered an injury to his lower back during the course of employment and from that date until 15 April 1994 he continued working for the respondent performing light duties for limited hours a day.  Further, the applicant states from 26 January 1994 until 15 April 1994 he worked an eight hour day still performing light duties as prescribed by his specialist medical adviser and that on 13 April 1994 he applied for three weeks recreation lead to commence the following week.

The applicant states that on 15 April 1994 Mr. McWilliam his employer stated that there were two doctors who stated that the applicant was fit for full duties and that there was no job for the applicant with the respondent and accordingly that he should look for work elsewhere.  The respondent replied that he could not find suitable work elsewhere and so allegedly Mr. McWilliam said:

“You’re finished.”

The applicant deposed the paymaster then came into the office and handed him a termination letter together with a cheque and that at no time did the respondent employer warn the applicant that he was not prepared to continue employment on the established basis nor did the employer offer to reinstate the applicant to his pre-injury duties.  The applicant stated that the respondent did not state that he was dissatisfied with work performance nor was the applicant afforded opportunity to discuss undertaking work which the applicant would consider appropriate.  The applicant stated that light duty work available at the employer’s premises and that other employees were working in a restricted capacity.

Both the applicant and the bottling supervisor stated that there were other employees, apparently pregnant women, who were on light duties at the respondent’s plant.  The Court heard that the applicant was of the view that he was being victimised by the bottling supervisor in that he was asked to perform tasks which he could not do.  No evidence was produced to the court to substantiate this allegation.

Upon examination the applicant stated that when he could not cope with the duties offered to him by the respondent would be sent to a doctor and on two such occasions he was sent home. 

In his affidavit of 11 August 1994 Mr. Jim Bakirtzidis stated he was the bottling supervisor of the respondent’s Chullora premises where the applicant was employed.  Mr. Bakirtzidis had met the applicant in 1987 and it seems has been his supervisor since about that time.  In May 1992 following the applicant’s initial absence from work as a result of a lower back injury until termination on 15 April 1994 Mr. Bakirtzidis stated he personally supervised daily work instructions to the applicant although the applicant was directly responsible to an immediate line supervisor.

During 1993 occupational rehabilitation was arranged for the applicant and from 9 August 1993 until 1 September 1993 a programme of set suitable duties was formulated.  In his affidavit Mr. Bakirtzidis stated the applicant’s work performance was below the required standard in relation to six of the seven tasks listed on the programme.  Mr. Bakirtzidis also stated:

“From a general work assessment point of view since Mr. Milakovic’s return from annual leave at the end of January 1994 up until the time of his termination in April 1994 I found it necessary to speak to Mr. Milakovic on at least three occasions regarding his apparent poor effort at the workplace.  I have had the opportunity of observing Mr. Milakovic’s (work) in the workplace for a number of years and genuinely believe that since the death of his wife, his approach to work has deteriorated significantly.  Coupled with his alleged physical situation, I have to say that I had a difficultly in observing any real attempt by him to genuinely work in accordance with the rehabilitation programme as referred in paragraph 11 herein and at his work generally.”

I find that in these circumstances it would have been appropriate for Mr Bakirtzidis to have been in a position to offer the applicant counselling to assist with coping with his employment.  Also I find that when Mr Bakirtzidis found it necessary to speak to the applicant about the poor work performance, there was no evidence that such conversations took the form of a formal warning to the applicant   The failure of Mr Bakirtzidis in this regard is also the responsibility of management, considering the length of service of the applicant to the respondent.

Under cross examination Mr. Bakirtzidis confirmed that he was aware the applicant sustained difficulty with the cutting of plastic but when there was no other light duty available Mr. Bakirtzidis would request the applicant to cut plastic.

In cross examination Mr. Bakirtzidis confirmed that he at no stage gave a warning to the applicant that he would be dismissed unless his work performance improved.  Mr. Bakirtzidis stated that on 21 March 1994 the applicant provided a medical certificate stating that he was fit to work for six to eight hours a day and further that Mr. Bakirtzidis was involved with all the workers compensation claims involving the respondent. 

The court heard evidence that the applicant served an application for Workers Compensation proceedings on the 1 October 1993.  Those proceedings are apparently finalised and it is noted that they are not relevant to a finding of unlawful termination.
Mr. Bakirtzidis stated that he was of the view that the applicant had an attitudinal problem but that this was never discussed with the applicant prior to termination.

By affidavit dated 5 August 1994 Mr. Ian McWilliam stated that he was the manager of the respondent company and confirmed that in addition to being employed by the respondent he had a financial interest in the respondent company.  Since 1989 Mr. McWilliam stated that he had been generally aware of the nature and type of duties being allocated to the applicant.  However under cross examination Mr. McWilliam admitted that at the time of termination on 15 April 1994, he did not know exactly what duties were required of the applicant.  Mr. McWilliam was aware that in October 1993 the applicant commenced Workers’ Compensation proceedings and stated that he was not involved with these proceedings.  The witness stated in April 1994 that as a result of his becoming aware of the poor work performance the matter was discussed with Mr Skinner and the decision made to terminate the applicant.  At no stage did the Court hear evidence that Mr McWilliam should counsel or warn the applicant as to the true position.

It should be noted that at this point the termination took place.  Section 170 DE (2) of the Act provides that reason for termination is not valid if, having regard to the employee’s capacity and conduct, the termination in harsh, unjust or reasonable.  I find that the respondent employer breached that section of the Act. Having considered the circumstances surrounding the manner in which the applicant was terminated, I find the termination of the employment to be harsh, unjust and unreasonable.

The court heard evidence from Mr. Skinner, Administration Manager, that while Mr. Milakovic was on light duties this prejudiced other employees and the existence of the Workers’ Compensation proceedings was not taken into consideration when the decision to terminate the applicant was made.

At no stage was evidence placed before the Court that either Mr McWilliam or Mr Skinner considered it relevant or advisable to warn the applicant his job was under threat.

Counsel on behalf of the respondent contended that the company went to great lengths to rehabilitate the applicant and this was simply not possible.  I am of the view that the only rehabilitation which occurred related to an injury to the applicant’s back and in the circumstances before the Court it is probable that the applicant needed counselling to cope with a variety of problems and stresses.  It was submitted that the termination was valid and it would not be possible in any event to restore the applicant to his pre-injury duties in light of the fact that the Workers’ Compensation matter had been compromised without an admission of liability and it would appear that a certain incapacity was found to exist on the part of the applicant.

Section 170 DC provides an employer must not terminate an employee’s employment for reasons related to the employee’s conduct and performance unless the employee has been given the opportunity to defend himself against the allegation .  The respondent failed to give the applicant the opportunity to defend himself against the allegations made against him.

Accordingly I find that the termination of the employment of Spasoje Milakovic contravened Part VI A of the Act. 

The applicant indicated that he felt his supervisor was victimising him and so accordingly it is considered not appropriate that the applicant be re-instated.

Counsel for the respondent argued that there had been no breach of the Act.  I do not so agree.  Counsel for the respondent offered the view that if the Court found that the termination had been harsh and unjust, and that the applicant had not been warned that his job was at risk, then the appropriate amount of compensation would be $8,474.55.

Counsel for the applicant in summary was of the view that there had been a breach of the Act was of the view that the sum of $8474.55 would be adequate compensation. 

Accordingly I order the respondent to pay to the applicant the sum of $8474.55 within 21 days of the date of this judgment.

MINUTES OF ORDER

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgement of Judicial Registrar Tomlinson.

Associate  :          

Date  :          14 October 1994

Appearances:

Counsel for the Applicant      :          Mr Jay Anderson

Solicitor for the Applicant     :          Anthony & Associates

Counsel for the Respondent   :          Mr R Crowe

Solicitor for the Respondent   :          Bruce & Stewart Turton

Date of Hearing  :          22 September 1994

Date of Judgement                :          14 October 1994