Stone v Broken Hill Pty Ltd

[1996] IRCA 133

DECISION NO:  133/96

C A T C H W O R D S

INDUSTRIAL LAW - Termination of employment - complaint of unlawful termination - misconduct.

INDUSTRIAL RELATIONS ACT 1988, ss.170EA, 170DB.

MARK STONE -V- BROKEN HILL PTY LTD

No. SI95/1393

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  29 FEBRUARY 1996

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI95/1393

B E T W E E N:

MARK STONE

Applicant

AND

BROKEN HILL PTY LTD

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  29 FEBRUARY 1996

THE COURT ORDERS THAT:

1. The Respondent pay damages to the Applicant equivalent to four weeks wages pursuant to S170EE(5).

1. All other aspects of the Application are dismissed.

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

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI95/1393

B E T W E E N:

MARK STONE

Applicant

AND

BROKEN HILL PTY LTD

Respondent

BEFORE:                 JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  29 FEBRUARY 1996

REASONS FOR JUDGMENT

This is an Application pursuant to S170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement.

The Applicant was first employed by the Respondent in 1983 when he was 16 years old.  That employment was terminated in 1985 when the Applicant along with some other employees fraudulently altered his clock cards.

The Respondent employed the Applicant for the second time in May 1987.  Eventually the Applicant gained the position of exhauster driver.  The Applicant’s duties consisted of supervising machinery in a safety critical area.

The Applicant received warnings over a period of time for:-

1. Minor traffic infringements on the Respondent’s property.

2. Minor safety breaches.

3. Bringing a TV to work.

4. Absenteeism.

In May 1995 the Applicant was formally counselled about his absenteeism and was advised that as a result of his absenteeism he would not be allowed to swap shifts with other employees for a period of twelve months.  Two days later the Applicant took further sick leave in conjunction with a swapped shift.

On 17 August the Applicant left his job in the middle of a shift and drove to a Whyalla Hotel to play eight-ball for his team.  He had arranged for Mr Wood, another exhauster driver to stand in for him.  He did not seek approval from his supervisor. The Applicant gave evidence that this was a spur of the moment decision following a telephone call from Mr Wood midway through the eight ball game.  Mr Wood’s evidence did not support the Applicant’s version of events.  His evidence was that the arrangement was made at least a day earlier.  In my view the disinterested evidence of Mr Wood must be preferred to that of the Applicant.

Following the discovery by the Applicant’s supervisor that the Applicant had left work to play in the eight-ball game the incident was properly investigated and the Applicant was given a reasonable opportunity to explain and put any mitigating factors in his defence. 

In my view leaving the work site in circumstances where there was some risk to the safety of others was misconduct and this was a valid reason for the termination of the Applicant’s employment.

There was no evidence that satisfies me that the termination of the Applicant’s employment was harsh unjust or unreasonable.

I am not satisfied however that the Applicant’s conduct can be properly described as serious misconduct.  Whilst there was some risk to others , that risk was relatively small and the circumstances in which the risk could arise were, fortunately, quite rare.

In my view the Applicant is entitled to receive his entitlements pursuant to Section 170DB for payment in lieu of notice.

I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment.

DATE OF HEARING  :          (Whyalla) 13 February 1996
  (Adelaide)  16 February 1996

FOR THE APPLICANT       :          Mr Harrison

FOR THE RESPONDENT    :          Mr Manuel