Tegov and Australian Workers Union v Naval Base Garden Supplies
[1996] IRCA 505
•23 October 1996
DECISION NO:505/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether TERMINATION for PROHIBITED REASON UNDER S170DF(1)(e) - whether VALID REASON for TERMINATION - serious misconduct relating to workplace safety requirements - APPLICATION DISMISSED.
Industrial Relations Act 1988 (C'th) SS 170EA, 170DB, 170DE and 170DF(1)(e)
ATANAS TEGOV & AUSTRALIAN WORKERS UNION v NAVAL BASE GARDEN SUPPLIES
WI 1192 of 1996
Before : BOON JR
Place : PERTH
Date of Judgment : 23 OCTOBER 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1192 of 1996
B E T W E E N:
ATANAS TEGOV & AUSTRALIAN WORKERS UNION
Applicant
A N D:
NAVAL BASE GARDEN SUPPLIES
Respondent
MINUTE OF ORDERS
23 OCTOBER 1996 PERTH BOON JR
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1192 of 1996
B E T W E E N:
ATANAS TEGOV & AUSTRALIAN WORKERS UNION
Applicant
A N D:
NAVAL BASE GARDEN SUPPLIES
Respondent
REASONS FOR DECISION
23 OCTOBER 1996 BOON JR
This is an application under Section 170EA of the Industrial Relations Act 1988. The applicant, Mr Tegov, is seeking reinstatement and payment of compensation in relation to the alleged unlawful termination of his employment by the respondent, Naval Base Garden Supplies.
Mr Tegov's employment was terminated without notice on 30 April 1996. It is alleged that the termination of Mr Tegov's employment contravened the provisions of the Industrial Relations Act in a number of ways. In the first place, it is said that Mr Tegov's employment was terminated without notice contrary to the provisions of Section 170DB. The respondent, Naval Base Garden Supplies, admits that Mr Tegov's employment was terminated without notice but says that it was entitled to do so as Mr Tegov was guilty of serious misconduct.
In the second place, it is alleged that there was no valid reason for the termination of Mr Tegov's employment contrary to the provisions of Section 170DE(1) of the Act. The respondent says that there was a valid reason in that Mr Tegov breached the company's safety policy.
Thirdly, Mr Tegov alleges that his termination was as a result of victimisation in breach of Section 170DF(1)(e) in that Mr Tegov had previously been a participant in proceedings against the respondent involving alleged violation of laws relating to payment of wages and other working conditions. The respondent denies that Mr Tegov was victimised and says that the termination occurred as a direct consequence of an incident on 30 April 1996.
BACKGROUND
Civil and Earthmoving Contractors (Kwinana) Pty Ltd ("CECK") provides labour to work on the premises of major companies along the Kwinana industrial strip. Naval Base Garden Supplies ("NBGS") supplies labour to CECK. The directors of CECK act as agents for NBGS in relation to hiring, training, discipline and termination of employment. Mr Tegov commenced work for NBGS in late August 1991. He was employed as a labourer and performed work under the supervision and control of CECK at worksites in and around the Kwinana area. The companies for which CECK provided labour included Alcoa (Australia) Ltd ("Alcoa") and BP Oil ("BP").
The type of work involved on the BP and Alcoa sites may pose threats to the safety of workers. For example, the work may necessitate dealing with dangerous products such as caustic soda. BP and Alcoa have adopted induction programs which must be completed successfully by the workers before they are permitted to enter the BP and Alcoa sites. To successfully complete the induction programs the workers must display a minimum level of knowledge regarding requirements such as the use of protective clothing and equipment. Mr Tegov successfully completed a safety induction course run by Alcoa and received an Alcoa site pass.
CECK adopted a safety policy which required its employees to wear the protective clothing and use protective equipment required by Alcoa and BP. Employees were required to attend regular safety meetings at which safety issues were discussed.
Mr Tegov's first language is Macedonian. He does not speak English well and required the use of an interpreter when giving evidence. Mr Tegov, however, does speak some English and the evidence was that he had sufficient command of the English language to enable him to understand most instructions given to him at work and that he did understand that he was required to wear protective clothing and use protective equipment whilst working on the Alcoa site. He was also aware that a breach of the company's safety policy after two written warnings could result in the termination of his employment.
On 8 February 1996 Mr Tegov was working on the Alcoa site. He was approached by Mr Princi and was told that he was in breach of the company's safety policy by not wearing a helmet and by having his shirt unbuttoned. He was given a warning letter. Mr Tegov said in relation to this incident that he had been working at that site for three to four weeks and during that time had not worn a helmet at all. He said that nobody had told him that he ought to have worn a helmet, despite the bosses having seen him without one prior to that occasion. Although the warning letter stated that his shirt was undone and flapping in the breeze, Mr Tegov's evidence was that only the top three buttons were undone. Mr Tegov said that he had been cutting some wood and did not feel comfortable because he was unable to move freely while operating the chainsaw so he had undone the top three buttons. The court heard from Mr Billy Higginson, a subcontractor who worked alongside Mr Tegov, in relation to that incident. Mr Higginson said that Mr Tegov's shirt had been completely undone and flapping in the breeze on that occasion. This evidence was confirmed by Mr Vince Princi, the director of CECK who issued the written warning. Mr Princi said that Mr Tegov had told him on that occasion that he was a safe worker and felt a lot more free and could work a lot faster with his shirt undone. Mr Princi said that he explained to Mr Tegov that he had to obey Alcoa's safety rules. Mr Princi gave evidence that CECK could lose its contract with Alcoa if its employees did not comply with Alcoa's safety rules.
There was a further incident on 5 March 1996 when Mr Tegov was once again issued with a written warning for breaching the company's safety policy. Mr Princi said that he had received a phone call from one of Alcoa's supervisors on that date stating that one of CECK's workers was not properly dressed on a job that he was doing for him. Mr Princi went down to the site to sort the matter out. Mr Princi said he saw Mr Tegov once again working with his shirt completely undone and flapping in the breeze. According to Mr Princi, when he arrived he saw Mr Tegov turn around and do up the buttons of his shirt and tuck it in. Mr Princi said that he spoke to Mr Tegov afterwards and told him that he had to comply with the safety dress standards. Mr Tegov did not agree with that version of the incident and said that he had only had three buttons of his shirt undone.
After he spoke to Mr Tegov, Mr Princi telephoned Mr Mike Lourey from the Australian Workers Union. Mr Princi said that he was concerned that Mr Tegov had a complete disregard of safety issues. He was concerned that he could get severely hurt. He discussed the matter with Mr Lourey and Mr Lourey advised him to put it in writing and ask for an explanation. Mr Lourey told Mr Princi that he would speak to Mrs Tegov because she had a better command of the English language. As a result, Mrs Tegov wrote a letter dated 6 March 1996 to Mr Princi. Although Mrs Tegov wrote the letter, it was under the name of Mr Tegov and signed by him. The letter said that Mr Tegov had not complied with the safety standards as he had found it easier and more flexible to have his shirt unbuttoned. The letter said that Mr Tegov now realised and recognised the importance of wearing the protective clothing. It went on to say:
"I accept that my actions with respect to safety dress standards were inappropriate and unsafe. I urge you to accept my commitment to complying in the future with the mentioned standards. Safety in the workplace is important and I realise that I must be responsible for my own safety".
Mr Tegov agreed during cross-examination that following this incident he knew that any further breach of the Alcoa or CECK safety requirements was a serious matter and would result in termination of his employment. Mr Princi gave evidence that when he read Mr Tegov's letter he was thrilled because "somebody had finally got through to him". Mr Princi felt that they were not going to have any more problems with Mr Tegov breaching safety requirements. Although the union representative for Mr Tegov submitted that this statement by Mr Princi showed a high degree of spitefulness and prejudice, I do not see it in that light. Mr Princi said that he was happy and wrote a letter to Mr Tegov thanking him for his letter. Mr Princi's letter to Mr Tegov dated 7 March 1996 stated in part:
"It is encouraging to see you now recognise that your actions with regard to working to the required safety standards have been irresponsible, and that you will now commit yourself fully to working to all required standards and regulations in the future.
It must be noted that any further breach of the safety regulations will result in termination of your services for CECK".
Mr Lourey, from the Australian Workers Union, gave evidence that he had advised Mrs Tegov to write to the company on behalf of Mr Tegov stating that he understood the seriousness of the breach of safety policy and that he gave a commitment not to breach the policy in the future. Mr Lourey agreed that it was imperative that employees abide by safety procedures.
Although Mr Tegov's evidence was that he understood the need for safety policies and the fact that a breach of those policies could lead to termination of his employment, his evidence was that he was a safe worker and had never had an accident. The implication from his evidence was that although the rules were there, it did not matter if he did not comply with them in every circumstance, because he knew how to work safely.
THE INCIDENT ON 30 APRIL 1996
Mr Tegov gave evidence that on 30 April 1996 he, Mr Higginson and another labourer, Mr Tvrdeic, were cleaning up a spillage of caustic soda. He and Mr Tvrdeic were using shovels to clear the spillage. Mr Higginson was driving a bobcat. Mr Tegov's evidence was that he was wearing all of the protective clothing, including his monogoggles, while he was working. He said that they worked very hard on that day and they all perspired a lot. He took his monogoggles off to clean them as they steamed up and he couldn't see clearly. The goggles were in poor condition. Mr Tegov's evidence was that the only time he took the monogoggles off was when he was not working. He said that whenever he was shovelling the caustic he was wearing the monogoggles. He had stopped for a 10 minute rest when he took the monogoggles off. Mr Tegov said that Mr Princi then walked up and told him that he had seen him working without his monogoggles on. Mr Tegov said that he tried to speak to Mr Princi to tell him that he had only taken the monogoggles off while he had a break and that Mr Tvrdeic agreed that was so but Mr Princi told him that he was sacked. Mr Tegov said that he knew he was supposed to wear the monogoggles while he was shovelling caustic soda and that he was wearing the monogoggles while he was working.
Mr Princi gave evidence that on the morning of 30 April 1996 he did a random check on the site that Mr Tegov, Mr Higginson and Mr Tvrdeic were working on. He said he arrived at the site at exactly 10:00 am and saw that Mr Tegov and Mr Tvrdeic were not wearing their monogoggles. He sat down on a brick structure around a nearby pipe alongside Mr Higginson's truck. He was out in the open but the men didn't see him watching for about 20 minutes. Mr Higginson was wearing his monogoggles but Mr Tegov and Mr Tvrdeic were not. Mr Princi said that he watched the men for exactly 20 minutes during which time Mr Tegov and Mr Tvrdeic slowly shovelled caustic into the bucket of the bobcat. Finally Mr Tegov saw Mr Princi. Mr Tegov then turned around facing the opposite way, as did Mr Tvrdeic, and they both put their monogoggles on. Mr Princi then stood up, walked across and called them all together. Mr Princi spoke to Mr Tvrdeic first. Mr Tvrdeic told Mr Princi that he had not been wearing his monogoggles because they were dirty. Mr Tvrdeic admitted that he knew the rule about wearing the monogoggles and apologised to Mr Princi. Mr Princi eventually gave Mr Tvrdeic a written warning in relation to this incident. Mr Princi said that he then turned to Mr Tegov and asked him why he hadn't been wearing his monogoggles. According to Mr Princi, Mr Tegov kept insisting that he had been wearing his monogoggles even though Mr Princi knew that he hadn't been wearing them. Mr Tegov told Mr Princi that he only took the monogoggles off to clean them and Mr Princi pointed out that he had been watching him for the last 20 minutes during which time he had not worn them at all. Mr Princi said that he was annoyed because Mr Tegov was calling him a liar by insisting that he had been wearing the monogoggles. Mr Princi said that he no longer had any trust in Mr Tegov and terminated his employment immediately. Mr Princi said that the reason he terminated Mr Tegov's employment was that Mr Tegov had had two written warnings for breach of the company's safety policy, he had given a commitment in writing not to breach the policy again and he did once again breach the policy. On top of that, Mr Tegov was stating that Mr Princi was telling untruths in insisting that Mr Tegov had been working without his monogoggles.
Mr Higginson's evidence was that he spoke to Mr Tegov and Mr Tvrdeic earlier in the morning about not wearing their monogoggles. They put their monogoggles back on. Then they had a smoko break at about 9:30 am until about 9:45 am. After they had finished their smoko both Mr Tegov and Mr Tvrdeic worked without their monogoggles on. He said that Mr Tvrdeic and Mr Tegov were working without their monogoggles until Mr Princi approached them perhaps half an hour later.
Mr Tvrdeic also gave evidence that he and Mr Tegov had been working shovelling caustic soda without putting their monogoggles on.
THE CREDIBILITY OF THE WITNESSES
The evidence of Mr Tegov in relation to the incident of 30 April 1996 is in direct conflict with the evidence of Mr Princi, Mr Higginson and Mr Tvrdeic. Although these matters are not decided by weight of numbers, I consider that on the balance of probabilities the version of events given by the three witnesses for the respondent is more likely to be correct than the version given by Mr Tegov. I find accordingly that on 30 April 1996 Mr Tegov did shovel caustic whilst he was not wearing the correct safety equipment, contrary to the safety policies of Alcoa and CECK.
SECTION 170DF(1)(E) - VICTIMISATION
Evidence was called on behalf of Mr Tegov that in approximately August of 1995 the Australian Workers Union informed Mr Tegov and between 20 and 30 other employees that they had a claim against their employer for underpayment of wages and breach of other conditions. Mr Tegov gave evidence to the effect that the attitude of the directors of CECK, including Mr Princi, changed towards him after the union instituted legal action against the employers. Mr Tegov said that he was removed from work in the launders which involved overtime payments. He was no longer working inside the Alcoa factory but only outside on the Alcoa grounds. Mr Tegov said that before the matter with the union he would always work on Saturdays for which he would be paid overtime. He said that one of the directors of CECK, Mr Dominic Princi, told him that he should ring the union up for a job. Mr Tegov said that on another occasion he was shown a dead mouse or rat and was told that that was for his lunch. The other workers thought it was funny but he did not consider it amusing.
The court heard from Mr Nikola Kezich who at the relevant time was the shop steward for the Australian Workers Union at CECK. At one stage he called in the Australian Workers Union when he found that other employees working in Alcoa doing similar work to what CECK employees were doing were getting paid at a higher rate. Mr Kezich said that CECK changed the way they treated him, Mr Tegov and two other workers after the union was called in. He said that after the union was called in there were incidents of Mr Princi hiding around corners in bushes when they were working on site to see what they were doing. He had never seen this happen before the union was called in.
Mr Kezich taped a telephone conversation which he had with Mr Princi on 31 January 1996. Mr Kezich spoke to Mr Princi about an application for leave. Mr Princi refused the application and said to Mr Kezich:
"You have done this company and Naval Base no favours. We do you no favours. Remember that is why you aren't entitled to your holidays. You have to serve the 12 months minus the time for your holidays, then you can have your holidays".
Further on Mr Princi refers to "your poofy friend in there". Mr Kezich said that he could only assume Mr Princi was referring to Mr Tegov but he wasn't sure about that. Mr Princi said he was unable to say who he was referring to during that conversation. Mr Princi said that when he was referring to Mr Kezich not having done any favours for the company he meant simply that Mr Kezich had literally done the company no favours.
I do not find Mr Princi's explanation for the conversation with Mr Kezich to be particularly credible. I consider it is likely that Mr Princi, in light of the entire transcript of that conversation, refused Mr Kezich's application for leave partly because of Mr Kezich's role in taking the company to court over the underpayment of wages issue.
Having said that, however, it does not follow that Mr Tegov's employment was terminated because of his involvement in the union. The evidence of Mr Tegov and Mr Princi was that there were 20 to 30 employees involved in taking the union action and Mr Tegov did not take any particular role in initiating or conducting the action.
Mr Princi had a reasonable explanation, which I accept, for transferring Mr Tegov from his work in the launders and rodmills. He said that initially the men were going to be rotated. The company has, however, experienced a downturn in the demand for the work and whereas they previously had five people working there Alcoa now only requires two of CECK's employees to work there. In the circumstances it is not surprising that Mr Tegov has not returned to work in that area.
Mr Princi denies any involvement in the mouse incident. In any event I do not consider that that incident, which in all likelihood was intended to be a joke, constituted victimisation.
There is clear evidence that Mr Tegov breached the company's safety policy on at least three occasions. He was given written warnings and knew that if he breached the safety policy again it was likely that his employment would be terminated. I accept Mr Princi's evidence that the reason for termination of Mr Tegov's employment revolved around the incident of 30 April 1996. Mr Princi's evidence is that Mr Tegov's involvement in union activities did not play any part in Mr Princi's decision to terminate Mr Tegov's employment.
Evidence was called on behalf of Mr Tegov in relation to CECK's attitude to its employees in relation to assisting them with the BP induction tests. Although Mr Tegov claims that he was discriminated against by Mr Princi in being treated differently from other employees when sitting the BP induction test, I accept Mr Princi's evidence that the circumstances surrounding the administering of those tests changed once Mr Princi had realised that the tests had been incorrectly administered by him in the past. He rectified that error and as a result Mr Tegov and another person were no longer given the assistance previously afforded to other employees when taking the test. This incident did not appear to me to involve any victimisation but rather occurred as a result of CECK's overall change in attitude to safety matters. It appears to me that there had been a gradual tightening up of safety requirements in line with modern practices and new quality control procedures. Although I have considered the substantial body of evidence given in relation to the induction tests I will not set that evidence out in detail because I do not consider that it contributed in any way to the termination of Mr Tegov's employment.
On the balance of probabilities, I do not consider that Mr Tegov's involvement in the union action against CECK constituted one of the reasons for the termination of his employment.
SECTION 170DE(1) - VALID REASON
Some attempts were made on behalf of Mr Tegov to prove that CECK made it difficult for its employees to obtain the necessary safety equipment for their work. As an example, Mr Tegov said that he was having problems with sunburn and asked Mr Princi for a protective hat. Mr Tegov said that Mr Princi refused this request. Mr Princi gave evidence that he told Mr Tegov to wear his helmet as the workers were not permitted to wear caps instead of helmets on the site, and that in any event the caps, which were distributed for promotional purposes only, were out of stock when he was asked by Mr Tegov for one.
I do not consider that the question of availability of safety equipment was relevant to Mr Tegov's termination. It was not suggested that on the date of his termination Mr Tegov did not have the necessary safety equipment. Although he complained about the poor state of his monogoggles, the weight of the evidence was that if he had requested a replacement pair he would have had no difficulty in obtaining it. Mr Tegov's defence in this matter was not that he did not have the necessary safety equipment but that he was in fact wearing the equipment at the relevant time and that Mr Princi did not believe him in that regard.
It was further suggested on behalf of Mr Tegov that the company treated him unjustly in that he did not have a good command of the English language. Some evidence was lead that Mr Tegov did not understand English well enough to appreciate everything he was told in relation to safety issues. Mr Tegov himself, however, gave evidence that he understood the need for the wearing of safety equipment, including monogoggles, and that his employment could be terminated if he did not wear it. His defence was not that he did not understand that he had to wear the monogoggles but that he was in fact wearing them contrary to the belief of Mr Princi.
I have already indicated that in my view Mr Tegov was not wearing the monogoggles whilst shovelling caustic contrary to the safety policy of both CECK and Alcoa. In these circumstances, I am satisfied that there was a valid reason for the termination of Mr Tegov's employment. Mr Tegov had been warned in writing on several occasions about his failure to comply with the safety requirements of his employer.
It was submitted on behalf of Mr Tegov that this incident should be viewed in light of Mr Tegov's statements that he regarded himself as a safe worker and had not had an accident during the term of his employment. I indicated at the time that a worker who continues to breach safety policies could simply be fortunate in not having had an accident. Further, the proposition that a worker who had some regard for his or her own safety should not be forced to comply with the employer's safety requirements is not a sound proposition. A safety policy should not be inconsistently applied. Those workers who have otherwise safe practices should not be allowed to breach safety rules as that would encourage other workers who do not have safe work practices to also breach safety rules.
In these circumstances, I am satisfied that there was a valid reason for the termination of Mr Tegov's employment within the meaning of those words in Section 170DE(1) of the Act.
SECTION 170DB - TERMINATION WITHOUT NOTICE
It was submitted on behalf of Mr Tegov that it was not unreasonable to require the employer to continue the employment during the prescribed notice period within the meaning of those words in Section 170DB of the Act. It was pointed out that CECK carries out operations for a number of clients only one of whom is Alcoa. It was suggested that Mr Tegov could have worked out his notice period at one of the other sites. The evidence was however that each of the sites at which CECK carries out work has safety rules associated with it. Mr Tegov had been in breach of CECK's own safety rules on at least three occasions. In my view, the continued breach by Mr Tegov of the employer's safety requirements constituted serious misconduct of the kind referred to in Section 170DB. According to Mr Princi, he could not trust Mr Tegov to continue working without breaching the safety requirements. Mr Tegov's own attitude that he was a safe worker and the implication that he did not need to comply with all of the safety rules supports Mr Princi's view. Although I have serious concerns about the fact that Mr Princi watched Mr Tegov and Mr Tvrdeic for 20 minutes while they were shovelling caustic soda without wearing monogoggles, I have arrived at the conclusion that it would have been unreasonable to require the employer to continue Mr Tegov's employment during the notice period in these circumstances. There is every indication that Mr Tegov would have breached the safety rules on another site if he had been transferred. As Mr Lourey said, it is imperative that employees abide by safety procedures. Continual breaches of an employer's safety requirements does, in my view, constitute sufficient grounds for termination without notice.
The appropriate order is that the application be dismissed.
I certify that this and the preceding fifteen (15) pages
are a true copy of the reasons for decision of
Judicial Registrar Boon.
Associate:
Date:
APPEARANCES
Representative for the Applicant: Mr M Lourey
Australian Workers Union
Counsel for the Respondent: Mr R Lilburne
Solicitors for the Respondent: Jackson McDonald
Dates of Hearing: 19 & 20 August 1996 and
26 & 27 September 1996
(Final written submissions received
18 October 1996)
Date of Judgment: 23 October 1996
0
0
0