Stiles v W.A. Protective Services

[1998] IRCA 16

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - UNLAWFUL TERMINATION - whether Valid Reason connected with Conduct or Capacity - whether employee given opportunity to defend himself - no point of principle

Industrial Relations Act 1988 (now Workplace Relations Act 1996) ss 170EA, 170DE, 170DC.

SHANE STILES -v- W.A. PROTECTIVE SERVICES
WI 1402 OF 1996

R.D. FARRELL JR
7 April 1998

PERTH

GENERAL DISTRIBUTION
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1402 of 1996

BETWEEN:	SHANE STILES APPLICANT
AND:	W.A. PROTECTIVE SERVICES RESPONDENT

COURT:	RD FARRELL JR
DATE OF ORDER:	7 APRIL 1998
WHERE MADE:	PERTH

THE COURT DECLARES AND ORDERS THAT:

1. The respondent terminated the employment of the applicant in contravention of section 170DC of the Workplace Relations Act 1996 (“the Act”).

1. The respondent pay to the applicant within 21 days an amount equal to five weeks’ wages as compensation pursuant to Section 170EE of the Act less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.

1. There be liberty to apply.

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

GENERAL DISTRIBUTION
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1402 of 1996

BETWEEN:	SHANE STILES APPLICANT
AND:	W.A. PROTECTIVE SERVICES RESPONDENT
COURT:		RD FARRELL JR
DATE:		7 APRIL 1998
PLACE:		PERTH

REASONS FOR DECISION

This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). The application is for compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Shane Stiles (“Mr Stiles”) by the respondent, W.A. Protective Services (“W.A.P.S.”). W.A. Protective Services is a division of Anaheim Pty Ltd. It was not contended that reinstatement was practicable.

Brief Factual Overview

W.A.P.S. was involved in the business of providing security services in the metropolitan area of Perth. At the time of the alleged unlawful termination, W.A.P.S. was exclusively subcontracted to supply security services to another company, Chubb Security Australia Pty Ltd (“Chubb”). W.A.P.S. employed six full time employees and two to three part time employees. The directors of W.A.P.S. were Mr Peter Mazzola and his son Mr Tony Mazzola, each of whom gave evidence. Peter Mazzola was responsible for the day to day running of the business.

Mr Stiles was 29 years of age, and had had previous experience in the security industry, working as a casual security guard for night clubs and hotels for six months in 1995. He completed an approved security officers training course in May 1993 relevant to a class 1a and 1b licence under the Security (Protection ) Industry Act 1985 (W.A.). He also held a valid driver’s licence.

Mr Stiles was initially employed by W.A.P.S. for a three month probationary period, commencing 27 May 1996. He was eligible for a Jobstart Wage Subsidy from the Department of Employment, Education and Training (“D.E.E.T.”), whereby W.A.P.S. would receive $200 per week for the first 26 weeks of his employment.

The Company employed Mr Stiles as a patrol officer. His duties were chiefly to perform checks of the premises of W.A.P.S.’s clients several times each night in accordance with a schedule during a twelve hour shift from 7.00pm to 7.00am. He used a patrol vehicle provided by W.A.P.S. for that purpose. Sometimes he was required only to drive past or through the clients’ properties. On other occasions he was required to leave the vehicle and physically check the premises.

In the first three days of his employment, he worked with and received “on the job” training from two other security officers. He worked for two nights with Mr Nigel Parr, and a further night with Mr Ken Brown. Mr Stiles complained about the nature of the training he received from Mr Parr and the manner in which Mr Parr treated him. This led to him being allocated Mr Brown. Mr Parr did not give evidence. Neither Peter Mazzola nor Tony Mazzola sought to seriously contradict Mr Stiles allegations concerning Mr Parr. About a fortnight later, Peter Mazzola also accompanied Mr Stiles on his route.

From time to time in the course of his employment, Mr Stiles’ performance was the subject of criticism by those to whom he reported. The alleged incidents giving rise to that criticism are considered below.

On 19 August 1996, Peter Mazzola indicated to a Labour Market Programs Officer of D.E.E.T. that “all was not what it should be” with Mr Stiles. However, he told the officer that further counselling from W.A.P.S. was proposed.

Mr Stiles remained in employment when his probationary period expired on 27 August 1996. Indeed, on about 22 August 1996, Mr Stiles requested a letter from W.A.P.S. confirming his employment so that he could provide it to a bank to assist him in obtaining a loan. Tony Mazzola acknowledges that he believed the letter was for Mr Stiles to arrange a purchase of a vehicle; he mentioned that Mr Stiles used to get a lift home with other patrolmen after shifts and that he would sometimes catch a taxi to work.

The Company provided the letter (“the Permanency Letter”) to Mr Stiles on Company letterhead, dated 28 August 1996, in the following terms:

“To whom it may concern,

Shane Stiles is employed by us on a permanent basis. His annual salary is $28,000.00 (twenty eight thousand dollars) which he will be paid fortnightly. If you have any queries please contact me (telephone number provided).

Yours sincerely
(signed)
Peter Mazzola
Managing Director
WA Protective Services”

The letter was in fact signed by Tony Mazzola, the other director of W.A.P.S.

The next day, Mr Peter Caffery of Chubb Protective Services (a Division of Chubb Security Australia Pty Ltd, to whom W.A.P.S. sub-contracted), sent a memorandum to Peter Mazzola, dated 29 August 1996 and headed “Shane Stiles”. The memorandum read as follows:

“Peter,

I have spoken to you on several occasions regarding the above persons radio procedures. This includes swearing, incorrect use of call signs, and chatter.

Shane continues to ignore the procedures that are in place.

Early August, I received a complaint that he attempted to chase/play chicken with a person delivering newspapers. This happened on a public road near the Quarry in Gosnells.

On the 28 August, 1996, I received a letter from the client at the Quarry complaining of several incidents of speeding on site. We understand Shane Stiles was the patrol officer on all three (3) occasions.

Shane’s behaviour and standards are not acceptable. Would you please address this matter urgently.

(signed)
Peter Caffery
Senior Inspector
Chubb Security”

There was direct evidence led at the hearing concerning each of the matters raised in this memorandum except the allegation of “playing chicken”. I have therefore had no regard to that allegation. The other matters are considered below.

Very soon after, Mr Stiles’ employment was terminated by W.A.P.S. His letter of termination, written by Peter Mazzola and dated 30 August 1996 read as follows:

“Mr Shane Stiles

We here give notice of your termination of employment with us effective 30 August 1996 for the following reasons:

Commenced employment 10 June 1996 on a Three Month trial period.

1.        On his First week he bogged the car on a building site where his      standing instructions were to walk the site.

2.        On two occasions he was reprimanded for swearing over the two way        radio which is recorded. He was counselled on both occasions.

3.        Vehicle Damage
  Laser - Dented the left hand spoiler on two occasions
  Ripped off the spotlight damaging cable
  Cino - Backed into down-pipe at service station, approx   $500.00 damage
  Drove across ditch at quarry wrecking two tyres   $120.00 damage
  Drove on flat tyre which couldn’t be repaired $60.00   damage
  Ran into pile of rock at quarry damaging front fender   on 29 August 1996 $200.00 damage (see item 6)

4.        Driving to (sic) fast at quarry and wrong way on one way road, client         complained.

Driving to (sic) fast at quarry on entry road reported by weighbridge          operator 28 August 1996. Complaint from client.

5.        General
           Shane has tried very hard and is able to perform the security work. His       main problem is lack of practical skills (had difficulty changing a tyre            and a spotlight globe). He talks too much and doesn’t think before he     speaks.

6.        Our main concern is a comment he made to a co-worker prior to     starting shift on 28 August 1996 was he felt like driving the vehicle off     the quarry edge and killing himself. Ironically that was the night he     ran into a pile of rocks.

Based on this information I cannot afford to retain him and would not like his death on my conscience.

Yours faithfully
(signed)
Peter J Mazzola
Managing Director”

I note that Peter Mazzola had contacted D.E.E.T. again on 30 August 1996, and discussed the possibility of referring Mr Stiles to a Commonwealth Employment Service Occupational Psychologist.

Mr Stiles had been employed for only fourteen weeks; it is clear that he commenced on 27 May 1996, and not 10 June as the letter states. According to the agreement with D.E.E.T., the wage subsidy would have continued for a further twelve weeks.

Mr Stiles filed this application almost immediately, on 4 September 1996. Peter Mazzola summarised the reasons for termination in the notice of employer’s appearance filed on behalf of W.A.P.S. as follows:

“Unsatisfactory performance during three month trial period. Failing to comply with standing instructions on client’s premises. Numerous accidents in company vehicles. Couldn’t get on with fellow workers.”

In the hearing, W.A.P.S. alleged a series of specific incidents which they contended amounted, when viewed cumulatively, to a valid reason for the termination of Mr Stiles’ employment connected with his conduct and capacity. Many of these incidents were disputed by Mr Stiles.

I therefore need to consider the evidence and make findings of fact concerning those incidents.

Alleged Mishandling of Vehicles

Witnesses called by W.A.P.S. gave evidence of numerous incidents between the commencement of Mr Stiles’ employment and the date of the Permanency Letter where Mr Stiles caused damage to patrol vehicles or otherwise mishandled them.

On 3 June 1996, which was the first night that Mr Stiles performed a patrol alone, he bogged his vehicle on a client’s premises. This required other employees to attend with a tow rope to pull him out.

On Tuesday 18 June 1996, W.A.P.S. received a complaint from Mr Harold Franklin, the Quarry Supervisor at the CSR Readymix quarry. Mr Franklin complained that the patrol officer that night had been driving too fast and had driven the wrong way down a one way internal road at the quarry. Mr Stiles had worked the night-shift ending on the morning of 18 June 1996.

Peter Mazzola warned all staff who worked at the quarry about the need to avoid speeding. He was required to attend a meeting at CSR Readymix that day about the issue.

On Monday 24 June 1996, Mr Franklin from the CSR Readymix quarry again complained about a patrolman speeding at the quarry, and performing his rounds too late in the morning, after work at the quarry had started. Mr Stiles had worked the previous three shifts and was again identified as the patrolman responsible.

Peter Mazzola was required to meet with CSR Readymix management to explain and apologise at 2.00pm that day. He left the following entry in the circuit information book, which patrol officers were required to check:

“R’Mix Quarry Gosnells.
Shane was spotted in the quarry at after 0600 hrs (“Too Late” Calls must be completed before 0500 hrs). He was speeding also & the client has complained. As a result I have a meeting with Mgnt to explain. Anyone not obeying the quarry road rules will not be working here any longer.”

Mr Franklin gave evidence concerning these complaints, but it is fair to say that his evidence was vague and somewhat confused as to timing, no doubt due to difficulties of memory. Mr Stiles’ evidence as to the timing of the incidents and the nature of the complaints was consistent with the documentary records of W.A.P.S. which were tendered into evidence. I have therefore accepted his evidence as to the order in which the events occurred.

Mr Franklin recalls the patrol vehicle on one occasion travelling the wrong way down a one way road, despite a prominent sign saying “wrong way - go back”. He recalled an incident where a patrol driver drove through a stop sign at the quarry. He recalled a patrol driver driving through the site and disobeying the traffic signs on the site relatively late in the morning when there were fully loaded trucks in operation. He explained that it was sometimes difficult to see these trucks coming. Mr Franklin’s evidence placed less emphasis on the issue of speed than would appear from the other records of the complaints, though he acknowledges that Mr Stiles sometimes travelled too fast, exceeding the 30 kilometre per hour speed limit.

Mr Franklin recalls catching up with and speaking with Mr Stiles. Mr Stiles says this happened on two occasions. Mr Franklin was assured by Mr Stiles that the matters complained of wouldn’t happen again.

Mr Stiles acknowledges that Mr Franklin pulled him up for going the wrong way down one of the roads. He claims, however, that he was taught to take that route by Mr Parr during his training. Mr Franklin recalls receiving that explanation. Mr Brown, the other patrol officer who gave evidence, says he would not have permitted Mr Stiles to use that route on the night that he accompanied him. However, Mr Brown left me with the impression that he considered it plausible that Mr Parr may have instructed Mr Stiles to go the wrong way down the one way road in order to conveniently complete the route. Mr Stiles said that when he gave this explanation to Peter Mazzola, he responded that he shouldn’t listen to Mr Parr.

Mr Stiles also acknowledges that on this first occasion he was going faster than he should have. He explained that there was always pressure to complete the route as quickly as possible in order to complete all the obligations in each shift within the time available.

Mr Stiles does not accept, however, that he went through a stop sign or did anything meriting complaint on the second occasion, though he recalls Mr Franklin pulling him over to allege that he had done so. I accept, on balance, that Mr Franklin had cause for complaint on this second occasion.

Peter Mazzola also claims that Mr Stiles admitted, in early July 1996, to damaging the spotlights mounted on the roof-rack of the Ford Laser by driving too close to a coin operator at a Carlovers outlet at Cannington. Peter Mazzola claims that this resulted in damage to the wiring and dents in the roof. He says he again took Mr Stiles aside and counselled him.

Mr Stiles emphatically denies this allegation. He says that there was a chronic problem with the spotlights and it is clear that he often noted in the log book that repairs were required. He denies that anything he did caused or contributed to the problem.

This was a clear contradiction in the evidence and I found Mr Stiles’ demeanour during his evidence concerning this particular matter quite convincing. It is a little surprising, given the notes made of other matters, that there is no documentary record of this incident. On balance I am not, therefore, sufficiently satisfied that Mr Stiles caused any damage to the spotlights.

On Sunday 18 August 1996, Mr Stiles reported to Peter Mazzola that he had damaged the Cino by backing into a pole at a service station. Peter Mazzola spoke to him again about the damage he was doing to the vehicles, advising him that it was a matter of serious concern to Peter Mazzola.

Mr Stiles concedes that he was careless on this occasion, but says that he was in a hurry. He suffered a flat tyre when he was urgently required to travel to a bank to hand over some keys. He pulled into the service station to pump up the tyre and jumped back into the car to move off, accidentally backing into the pole.

On the night shift ending on Thursday 22 August 1996, it appears that further damage was done to the Cino by Mr Stiles while crossing a ditch in the CSR Readymix quarry.

The potential problem with the ditch had been known about for some time. The following entry had been made in the circuit information book on 13 June 1996:

“Ready Mix Quarry.   SHANE/KEN
The crossover near the top magazine is partially washed out it can be crossed with care on an angle. If it looks unsafe walk-up to magazine.”

Mr Stiles says that the mishap occurred during his last call at the quarry for the night. After going over the crossing, he noticed that one of the tyres had gone flat. He had already pumped it up once earlier in the night. He rolled the vehicle down the hill until he came to a flat spot where he could change the tyre. Having done so, he says the vehicle was serviceable for the remainder of the shift.

He noted a problem in the patrolman’s daily report log for 22 August 1996:

“Peter
As we discussed front right has played up both nights. Swapped cars approx 0100 hrs. Both cars are filled.
When you check brake pad for front right also check CV Joint as well. For every time you turned right the noise was more prominent then it disappeared (9FX850)[ie the Cino]
Have a nice day.   Shane”

Peter Mazzola recalls Mr Stiles calling him to advise him that he had punctured a tyre while crossing the ditch.

Peter Mazzola put the vehicle into a tyre servicing outlet that day and was advised that three of the tyres were unable to be repaired. The walls on at least some of the tyres had been damaged. Peter Mazzola concluded that this damage to three tyres had been done at the quarry on the previous shift, either by driving over the ditch or by driving on the tyres when they were flat.

Peter Mazzola also claims that the suspension was damaged on that occasion - it is not clear whether he was aware of that at the time. Mr Stiles disputes that any damage was done to the suspension. He says he would have heard a bang or a bump if it had. He says he recalls being told by the tyre servicing outlet the next day that a couple of new tyres were needed because the spare was not in good condition, and that there was a problem with the wheel alignment.

Other notes in the logs suggest that the damage to one of the tyres occurred on Mr Brown’s shift. No evidence was tendered from Tyre Power as to the extent of the damage. On the limited evidence before me I am not satisfied that the damage went beyond damage to the tyres.

Peter Mazzola raised the matter with Mr Stiles when he next came in for work, which was on Tuesday 27 August 1996. He told Mr Stiles that the damage he was doing to vehicles had become extremely serious. Mr Stiles responded that he had tried to cross the ditch because he had thought it would be all right.

The Swearing Incidents

On the night shift commencing on 29 May 1996, which was the first shift for which he was rostered, Mr Stiles used the two-way radio in a manner which gave rise to a complaint from Chubb.

Mr Stiles was working with Mr Parr that night, as part of his initial training. Using the two-way radio, he referred to Mr Parr as a “sheep-fucker” - an apparently jocular reference to Mr Parr’s New Zealand origins.

Mr Stiles, who was away from the vehicle, was using a hand-held radio to communicate with Mr Parr who was in the vehicle. Mr Stiles claims not to have been aware that the transmission could be heard by anyone other than Mr Parr.

Chubb’s standing instructions for security officers provide as follows:

“4.4     RADIO PROCEDURES

The use of correct radio and voice procedures is very important in effective two-way radio communication. Radios are provided as a means of emergency communication or for communication purposes when other means (e.g. telephone) are not provided or not readily available.

Messages are to be kept brief and to the point. Unnecessary or lengthy messages, personal conversations between units and foul or obscene language will not be tolerated.

Two-way radios are both delicate and expensive pieces of equipment and must be treated accordingly.”

There were some suggestions on behalf of W.A.P.S. that Mr Stiles should have been aware of this instruction. I am not sufficiently satisfied on the evidence, however, that these instructions were made available to Mr Stiles. It was also suggested that proper use of the two-way radio would have been a subject covered by Mr Stiles’ security course, but there was no direct evidence of that. While one might have expected that Mr Stiles would have overheard messages broadcast by other radios and therefore realised that the radio formed part of a wider network, it is conceivable that he was unaware that his statements could be overheard by others. Even if he were aware that his broadcast could be overheard, I accept that he was not aware of the seriousness with which Chubb, and therefore W.A.P.S., regarded swearing over the radio. One would expect that his initial training period would therefore provide the opportunity to rectify such misconceptions.

The following notes appear in the Company Desk Diary for 31 May 1996:

“Complaint from Chubb re Shane’s use of bad language over the radio”

“Spoke to Nigel and Shane over training procedure. Reinforced radio Procedures to Shane. Warned him about comments to clients.”

Peter Mazzola claims that he counselled Mr Stiles about his use of the radio, in the presence of Mr Brown; Mr Brown gave evidence, but was not asked to confirm the evidence on this point. Peter Mazzola says he told Mr Stiles that it was a dismissible offence if he didn’t comply with radio procedures. Mr Stiles recalls any counselling as an informal chat, and recalls Peter Mazzola telling him that W.A.P.S. could lose their licence if they swore on the radio.

About a fortnight later, W.A.P.S. received a further complaint from Chubb about Mr Stiles swearing on the radio. Peter Mazzola’s entry in the Company Desk Diary for Thursday 13 June 1996 about the complaint reads as follows:

“Peter Caffrey phoned
Speak to Shane about bad language over radio.
“NAB” incident. Whats wrong with this bloke.”

There was evidence dealing with the circumstances in which the “NAB” incident occurred.

The National Australia Bank was a major client. Mr Stiles was called to attend a branch of the bank to act as an escort. He had never had to perform that role before and had not been trained to do it. He says the bank officer with whom he was dealing asked him where he had been and told him to “get his fucking arse in gear” and go in and check the bank. Mr Stiles was stunned by this, but did as he was told.

When Mr Stiles was finished at the job, he complained over the radio to the Chubb control room that he had been sworn at by the bank officer, and explicitly repeated over the radio what the bank officer said.

The Chubb control room called Tony Mazzola and asked him to try and sort the problem out. Tony Mazzola and his father met up with the bank officer at his next job to ascertain what had happened. The bank officer denied swearing at Mr Stiles. He claimed Mr Stiles was acting strangely and that he had asked what he should do. He said Mr Stiles stood there and stared at him, making him feel uncomfortable. It was necessary for Mr Stiles to make an internal check of the bank, and the bank officer had merely told him to get on with it.

Then, as Peter and Tony Mazzola were reporting the bank officer’s account to the control room over the radio, Mr Stiles again came onto the radio and twice repeated the words he said the escort had addressed to him.

They then went to meet Mr Stiles at Newtown Toyota. Mr Stiles “looked as though he had tears in his eyes”. He agrees he was upset. He says was worried that he was going to get fired, and could see that Peter Mazzola was not happy.

Mr Stiles told them that nobody had ever spoken to him like that before. While Mr Stiles was counselled over the incident, Peter Mazzola conceded that the task required of Mr Stiles that day had not been covered in his training. Tony Mazzola says that Mr Stiles could have called him if he did not know what to do, or could have asked the bank officer.

Mr Stiles says that while they were initially angry, eventually everything was “smoothed out”. He says that Peter Mazzola accepted most of the blame, because Mr Stiles had never been shown how to be a bank escort.

Given that the difficulties with the particular bank officer were the product of Mr Stiles’ inexperience, it appears that Peter Mazzola did not place too much weight on that aspect of the incident. He was perturbed, however, about Mr Stiles again swearing on the radio, albeit by way of quotation. It was not necessary for Mr Stiles to explicitly repeat the explicitly words, and he should not have done so, especially given the warning he had received earlier.

Mr Stiles says that he performed subsequent bank call-outs without difficulty. W.A.P.S. did not contest this.

Alleged Poor Relationship with Fellow Workers

There was limited evidence in relation to this issue.

Tony Mazzola referred to some ill-feeling between Mr Stiles and Mr Parr, but I was left with the impression that Mr Stiles’ was not solely to blame for that, if at all.

Tony Mazzola went on to say, however, that Mr Stiles wasn’t really getting on with the other staff, and that he seemed to “bait” or provoke them. While Mr Stiles may have been acting in jest, some of the other staff didn’t appreciate his banter.

The letter of termination asserted that Mr Stiles talks too much and doesn’t think before he speaks. Mr Brown, in his evidence, described Mr Stiles as a “know all”, who took to facetiously calling him “darling”.

Given the largely solitary nature of the duties performed by a patrol officer, one might expect this issue to have relatively less importance. There was no evidence of it interfering with Mr Stiles’ work once his training was complete.

I am satisfied that, to the extent that Mr Stiles was unpopular, it did not, in itself, form a reason for his dismissal. However, it may be that another officer who was experiencing the same shortcomings in their performance might in practice have been reprieved from dismissal if he was popular with his colleagues.

Alleged Dangerous State of Mind

The termination letter refers to and places considerable weight on a comment allegedly made by Mr Stiles to a co-worker, apparently “Peter B”, prior to starting his shift on 28 August 1996, to the effect that he felt like driving the vehicle off the quarry edge and killing himself.

Relatively little emphasis was placed on this issue during the hearing. Peter B. was not called to give evidence.

Mr Stiles acknowledged that he was involved in a court case at the time with his ex-wife but denied making the comments.

Alleged Lack of Skills

The reference to Mr Stiles’ alleged lack of practical skills in the letter of termination was not pursued in the hearing.

Final Incidents

Two further incidents occurred at about the time W.A.P.S. provided Mr Stiles with the Permanency Letter.

There is some confusion concerning the timing of those incidents.

Mr Stiles was rostered to work on the night shifts beginning on Tuesday 27 August (“Shift 1”) and Wednesday 28 August 1996 (“Shift 2”). He had previously had a break of almost a week. He did not work the shift beginning Thursday 29 August 1996, but was originally rostered for the shift beginning Friday 30 August 1996; the roster was altered as a result of his dismissal.

Mr Stiles requested the Permanency Letter on about 22 August 1996, before the break in his shifts. The letter was dated 28 August 1996, so it is most likely that Mr Stiles received it after completing Shift 1 and before beginning Shift 2.

The first incident, which gave rise to the letter of complaint from Chubb to W.A.P.S. dated 29 August 1996, set out above, concerned speeding on the CSR Readymix quarry site.

CSR Readymix Quarries had written a letter to Chubb, dated 28 August 1996, in the following terms:

“ATTENTION:  PATROL OPERATOR

Dear Sir/Madam,

On the morning of Tuesday 27th August 1996 at 6am, it was brought to my attention by Gordon Ashworth who works in our Customer Service Centre as the Distribution Co-ordinator that one of the security patrol vehicles had been seen driving at high speeds around our Gosnells Quarry. The speed limit on the quarry site is 30kph as shown by signage throughout the quarry site. This has occurred on two other occasions and I contacted your company and complained about your vehicles speeding around our quarry site.

We are responsible for the safety and well being of all people on site under the Mines Regulations Act. I hope that we do not have to bring this matter to your attention again.

Yours faithfully

(signed)
HAROLD FRANKLIN
QUARRY SUPERVISOR”

This letter was tendered into evidence, together with a note from Mr G.J. Ashworth in the following terms:

“My name is Gordon Ashworth and I work in the weigh-bridge for CSR Readymix at their Gosnells Quarry. On the 27th August 1996 between approximately 5 am and 5.20 am I was in a position to observe a security vehicle belonging to Chubb Security travelling at speed, both on Cockram Rd and in the Quarry area itself. I was of the opinion that the vehicle was travelling at a speed far greater than that allowed: particularly while being driven on the Quarry roads. Later in the morning I spoke with the Quarry Supervisor Mr. Harold Franklin, on this matter.”

W.A.P.S. contend that Mr Stiles was the subject of this complaint. The difficulty for W.A.P.S. is that, according to its rosters, it was Mr Brown who was rostered to visit the quarry during the shift commencing on the evening of Monday 26 August 1996 and concluding on the morning of Tuesday 27 August 1996 - not Mr Stiles.

It follows that either it was Mr Brown who was speeding on the morning in question, or Mr Ashworth and Mr Franklin have nominated the wrong date.

The only morning on which it could have been Mr Stiles who was speeding was the morning of Wednesday 28 August 1996 (ie Shift 1), because CSR Readymix’s letter of complaint bears that date, and the W.A.P.S. Company Desk Diary contains an entry for Wednesday 28 August 1996 stating:

“Complaint again from quarry.”

Mr Franklin, the quarry supervisor, gave evidence. Mr Ashworth, the weighbridge attendant who witnessed the incident, did not. Mr Franklin’s initial evidence was that Mr Ashworth spoke to him about the incident on 27 August 1996, the day before he wrote the letter. He said he was told to write the letter to Chubb by his superior, Mr Russell Wilson.

However, when it later became apparent that Mr Stiles did not work the shift ending on the morning of 27 August 1996, Mr Franklin asserted that the dates were wrong in the letters and that he rang Peter Mazzola about the incident on the morning of 28 August 1996.

Tony Mazzola gave evidence of being on duty at the same time as Mr Stiles, which it was contended could only have been Shift 1, ending on the morning of 28 August. He says that he received a telephone call at the base office shortly after 5.30am that morning from Sharon, one of the radio operators from the Chubb control room. She stated that she had received a telephone call that morning from CSR Readymix complaining that a patrolman had been speeding around the quarry. She advised him that Chubb wanted the matter followed up.

Tony Mazzola later added that Sharon reported that the driver had driven down the wrong side of the road and was performing the visit far too late in the morning. He says a fax was received stating that no calls were to be done if there were staff on site at the quarry, in order to avoid contact with heavy earth-moving equipment. That fax was not produced.

Tony Mazzola says he regarded it as a serious incident and that he didn’t even have to look at the roster to know that it was Mr Stiles who was patrolling the quarry that night. He says he advised Mr Stiles of the call when Mr Stiles returned to base at the end of his shift, warning him about the seriousness of complaint, and of the fact that it was the second (sic) time that they’d had a complaint about him at the same site. Tony Mazzola says he also advised Peter Mazzola of the complaint.

When the discrepancy in the dates was put to him, Tony Mazzola said he was sure that Mr Stiles was working at the time when the incident happened (by which I take him to mean the time when he received the call).

Unfortunately, the roster also gives rise to difficulties with regard to Tony Mazzola’s evidence, because he was neither rostered to work on the shift ending on the morning of 27 August 1996 nor the shift ending on the morning of 28 August 1996 (ie Shift 1). The first shift on which he worked that week commenced on the evening of 28 August 1996 (ie Shift 2). He could not therefore have been working when the complaint was received. Unfortunately, this discrepancy was not put to him.

It also seems odd that Tony Mazzola would have said those things to Mr Stiles and then, the same day, given him the Permanency Letter. I note from the detail of Tony Mazzola’s evidence that he was under the impression there had been only two complaints received about speeding at the quarry, whereas this complaint would have been the third. In addition, the detail he recalls of this complaint is similar to the previous complaints. For example, he says Sharon complained that Mr Stiles was travelling the wrong way down a one way road (as was the case on 17 August 1996) and that he was checking the quarry too late in the morning (as was the case on 24 June 1996). Neither of these details are mentioned in Mr Ashworth’s note.

While it is notionally possible that Tony Mazzola had swapped shifts, it appears from the roster that there was a practice of physically amending the roster if the shifts were changed. The most probable explanation for the discrepancy between Tony Mazzola’s evidence and the roster is therefore that Mr Mazzola was confusing his receipt of one of the earlier complaints with the complaint received immediately prior to Mr Stile’s dismissal.

As for the proposition that the date in Mr Franklin’s letter is incorrect, it seems to me relatively unlikely that Mr Franklin, having been told by Mr Ashworth that the incident happened “today”, would accidentally assign “yesterday’s” date to it in his letter.

Mr Brown was not asked about the speed with which he drove in the quarry during the shift ending 27 August 1996.

In conclusion, with regard to this incident, I accept that both Chubb and those who decided on behalf of W.A.P.S. to dismiss Mr Stiles genuinely believed that he was responsible for the most recent complaint about speeding at the quarry. However, given that W.A.P.S. bears the onus of proof in this matter, I am not sufficiently satisfied that they were correct in that belief. Nor, if it be relevant, do I find that an adequate investigation would have supported that belief. I find therefore that it was not Mr Stiles who caused the final complaint about speeding in the quarry.

The second issue which arose at about the same time concerned further damage done to W.A.P.S.’s patrol vehicle by Mr Stiles while driving through the Readymix Quarry.

After concluding Shift 1, Mr Stiles left the following entry in the Patrolman’s daily report log for 28 August 1996:

“28-8-96 - Peter - Damaged front left bumper at quarry swerving to miss a kangaroo and hit a pile of granite (just skidded into it).    Shane”

The Company desk diary for the same date has the entry:

“Cino smashed.”

The damage appears to have occurred during the shift ending on the morning of 28 August 1996 (ie Shift 1) - the day he received the Permanency Letter.

When Mr Stiles arrived back at work for his next shift that evening, he was questioned about the damage.

Mr Stiles says that it had been raining, and that he was taking a blind turn on an unsealed road at the quarry when a kangaroo jumped out so that he had to swerve to avoid it. Though he claims he was only travelling at 15 kilometres per hour, he was unable to avoid running into a pile of gravel. He was surprised that he could not stop in time, but says that the impact with the gravel was not great. Had he not swerved, he would have hit the kangaroo.

Mr Stiles’ employers did not believe that he had swerved to miss a kangaroo, and contended that he must have been going too fast in order for the vehicle to slide and hit the pile of gravel. They were all familiar with the site at which the accident had occurred.

I note that the damage to vehicle had not been repaired as at the time of the hearing and that the damage had apparently not interfered with the operation of the vehicle on patrol. Tony Mazzola accepted that the impact of the collision would not have had to be very great to cause that degree of damage.

Whether Mr Stiles Was Given an Opportunity to Defend Himself

Following the receipt of the letter of complaint from Chubb on 29 August 1996, Peter Mazzola met with Tony and his other son, Joe, to discuss Mr Stiles’ performance. Mr Stiles was not present at the meeting.

The following entry in the Company Desk Diary for Friday 30 August 1996 records that the meeting was to take place that day:

“Meeting Joe & Tony
Re Shane 11:00”

It was decided at that meeting that Mr Stiles would be dismissed. I am satisfied that the outcome of the meeting was not a foregone conclusion; Peter Mazzola had that day discussed with D.E.E.T. the possibility of referring Mr Stiles to an Occupational Psychologist.

They discussed the history of Mr Stiles’ employment and the expenses incurred as a result of his employment. They concluded that:

• W.A.P.S. had done as much as it could in time and effort to support Mr Stiles without getting the results it expected; and

• it was costing W.A.P.S. money to keep Mr Stiles employed.

They decided, therefore, to dismiss him.

Section 170DC of the Act provides that an employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless the employee has been given the opportunity to defend himself or herself against the allegations made. I am satisfied that W.A.P.S. could reasonably have been expected to give Mr Stiles that opportunity.

W.A.P.S. contend that Mr Stiles was dismissed due to an accumulation of incidents, that he was counselled after each of those incidents and that Mr Stiles therefore had an opportunity to defend himself in relation to each of the allegations which resulted in his dismissal.

Dealing with the two final incidents, I accept that Mr Stiles was given the opportunity to explain how the damage to the vehicle resulting from the collision in the quarry came about, even though his explanation was not accepted.

There was no evidence, however, of Mr Stiles being given the opportunity to defend himself in relation to the final complaint about speeding in the quarry. Given that I have found on the balance of probabilities that W.A.P.S. were mistaken in concluding that it was Mr Stiles who was speeding on the morning in question, It follows I think that there was a real prospect that Mr Stiles, had he been granted the opportunity to challenge their belief on that issue, could have averted his dismissal.

Even leaving aside that particular omission, I am not satisfied that this is a case where counselling for individual incidents would suffice to meet the requirements of Section 170DC. W.A.P.S. had just confirmed that Mr Stiles was a permanent rather than a probationary employee. If W.A.P.S. then wished to consider the final collision at the quarry against the background of all the other incidents which had occurred throughout Mr Stiles’ employment history in order to decide whether or not his employment should be terminated, then Mr Stiles should have been given an opportunity to defend himself in the same context. It is not clear that Mr Stiles was advised that his continued employment was at stake when he was asked about the final collision. He was asked about the incident in isolation, but it is not clear that he was asked to defend it against the background of previous incidents.

I find, therefore, that W.A.P.S. failed to comply with Section 170DC of the Act.

Whether Valid Reason Connected With Conduct or Capacity

Section 170DE(1) provides that an employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

Had Mr Stiles been terminated at the end of a three month “trial period” of employment, then this case would have presented little difficulty. There was evidence of shortcomings in his performance and, given that the end of the trial period would have been an appropriate time to review his performance and his suitability for the position, I am satisfied that those shortcomings would have made a decision to terminate at that time justifiable. I make those observations apart from any jurisdictional considerations arising from any probationary period.

The difficulty in this case is that W.A.P.S. had the opportunity to conduct such a review at the end of his “trial period, but instead issued the Permanency Letter” notwithstanding any previous shortcomings in his performance. The letter was issued in circumstances where W.A.P.S. had reason to believe Mr Stiles would incur obligations in reliance upon the letter. Whether he did so or not is beside the point.

The incidents which came to the attention of management after the Permanency Letter issued are therefore crucial.

Of these, it appears that the letter of complaint from Chubb was the catalyst for the decision to dismiss Mr Stiles. That letter, though it recounts many previous incidents involving Mr Stiles, was prompted by CSR Readymix’s most recent complaint about speeding at the quarry; Peter Mazzola says he believed there was a distinct possibility that the contract with CSR would be cancelled.

Chubb’s letter proceeds on the assumption that it was Mr Stiles was the driver speeding on the morning in question. I have found that that assumption, presumably gained by Chubb from W.A.P.S.’s management, was mistaken. The complaint as to Mr Stiles’ alleged conduct in speeding does not constitute a valid reason for Mr Stiles’ dismissal because there was, I have found, no such conduct.

The other matter was the collision in the quarry. I am prepared to accept that the nature of this collision was not apparent to management at the time the Permanency Letter was given to Mr Stiles.

I accept that the fact that the collision occurred indicated a short-coming in Mr Stiles’ capacity or conduct. While that shortcoming may have been relatively minor viewed in isolation, I accept that this was conduct which could appropriately be viewed in the context of a background of previous similar conduct.

The fact of the collision seems not to have been given much emphasis by W.A.P.S. in deciding whether to dismiss Mr Stiles, being overwhelmed in their considerations by the significance of the complaint from Chubb, to whom they were exclusively contracted.

On balance, however, I find that Mr Stiles’ conduct in being involved in the collision was a factor which genuinely contributed to the decision to dismiss him, even though it was not the only factor. It was one of the reasons for termination, and it could be said that the reason for his dismissal was genuinely connected with that conduct. I further find that this example of his conduct, when viewed in the context of a background of previous similar conduct, may have been such as to render justifiable the termination of his employment. The decision to dismiss was a not an unreasonable response to the conduct in the circumstances.

I therefore find that Mr Stiles was terminated for a valid reason connected with his capacity or conduct, and that W.A.P.S. has complied with Section 170DE of the Act.

Compensation

In assessing the compensation that is appropriate, the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened.

In this case, had Mr Stiles been given the opportunity to defend himself with regard to the two additional allegations, viewed against his previous employment history, there is a real possibility that he would have been able to establish that it wasn’t him driving on the night of the complaint. W.A.P.S. could have liaised with Chubb and CSR Readymix while memories were still fresh and could have established that he was working on the morning of the complaint.

There are other possibilities, however. In particular, I think it quite likely that even had W.A.P.S. and Chubb accepted that the most recent speeding complaint was not caused by Mr Stiles, W.A.P.S. would still have decided to terminate his employment after considering the significance of the collision, which of itself may have implied that Mr Stiles was driving at too great a speed for the conditions.

Even had W.A.P.S. not acted to dismiss Mr Stiles based upon that incident, I must also take into account the relatively high possibility that his employment would have come to an end lawfully in the near future, given the number of incidents which had occurred during the short duration of his employment.

I am therefore considerably discounting the compensation to be awarded to Mr Stiles, and will award him an amount equal to five weeks’ wages. There was not sufficient evidence for me to nominate confidently the value of those wages. If the parties are unable to agree the relevant sums, the matter can be briefly re-listed to enable me to take further evidence on that matter.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Judicial Registrar R.D. Farrell

Associate:

Dated:            7 April 1998

Counsel for the Applicant:	Mr A Maughan
Solicitor for the Applicant:	Andrew Maughan
Representative for the Respondent:	Mr P. Mazzola Director
Date of Hearing:	15 & 16 January 1997
Date of Judgment:	7 April 1998