Trevor Brian Smith v Colemans Printing Pty Ltd
[1995] IRCA 611
•11 Jul 1995
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - VALID REASON - PROCEDURAL FAIRNESS - COMPENSATION
INDUSTRIAL RELATIONS ACT 1988 , ss170EA, 170DC, 170DE
Nicolson v Heaven & Earth Gallery Pty Ltd 126 ALR 233
TREVOR BRIAN SMITH -v- COLEMANS PRINTING PTY LTD
No. DI95/1165
BEFORE: BOULTON JR
PLACE: DARWIN
DATE: 11 JULY 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. DI 95/1165
QUEENSLAND DISTRICT REGISTRY
BETWEEN: TREVOR BRIAN SMITH
Applicant
AND: COLEMANS PRINTING PTY LTD
Respondent
MINUTE OF ORDERS
BEFORE: BOULTON JR
PLACE: DARWIN
DATE: 11 JULY 1995
THE COURT ORDERS THAT:
1.The application be allowed.
2.The respondent pay to the applicant the sum of $3000 within 14 days of today.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. DI 95/1165
QUEENSLAND DISTRICT REGISTRY
BETWEEN: TREVOR BRIAN SMITH
Applicant
AND: COLEMANS PRINTING PTY LTD
Respondent
BEFORE: BOULTON JR
PLACE: DARWIN
DATE: 11 JULY 1995
REASONS FOR JUDGMENT
During the trial I gave leave to the applicant to amend the name of the respondent to Colemans Printing Pty Ltd, ACN 009707890, the correct title of the employer.
The applicant is now aged 60. He is a qualified hand and machine compositor, having worked in the printing industry on and off for many years. The respondent runs a printing business in Darwin.
In November 1993 the respondent employed the applicant as a typesetter. His principal duty was the production of inked stamps. The parties agreed that the applicant’s employment was subject to the terms of the Graphic Arts (Northern Territory) Award.
On 11 October 1994 the managing director of the respondent, a Mr Coleman, terminated the applicant’s employment. The applicant received one week’s pay in lieu of notice.
The applicant gave evidence before me. On behalf of the respondent seven witnesses were called, including Mr Coleman, the others being present or past employees of the respondent.
The respondent did not allege that it relied on unsatisfactory work performance on the applicant’s part as the ground for his dismissal. Tis representative referred to the reason as being serious misconduct on his part. This related to the applicant’s relations with fellow employees.
I now turn to the evidence. The facts as I find them are as follows: over the period of his employment, the applicant had a number of disagreements with fellow employees. He had been rude and abrupt towards a Miss Sabey, who was a shop assistant in the stationery section of the respondent’s business. Her duties included taking stamp orders from customers, and passing them to the applicant for his making up of stamps. This rudeness occurred on at least one occasion in front of customers, when he threw work dockets towards her. He reduced her to tears at work on one occasion. Miss Sabey was unable to specify about when these incidents occurred. She found she was unable to communicate with the applicant, so she asked her supervisor to do so on her behalf.
In early 1994 an advertising consultant employed by the respondent, a Miss Milekic, had a disagreement with the applicant about the use of a computer. She had asked the applicant several times if he could let her know when he had finished with it. After being taxed about it, the applicant told her that she had lost credibility in his eyes, he having let her use it once and finding that she had allowed someone else to use it. The applicant called her a liar, and said she would not get any cooperation from him. This incident shocked and upset her. The two of them hardly spoke again.
This incident was brought to the attention of a Mr Kazamias, the respondent’s manager. In the absence of Mr Coleman, he would run the respondent’s business. He is now an employee of more than 20 years standing, and a qualified printer. He impressed me as a witness. Mr Kazamias spoke to the applicant shortly after hearing of the incident. The applicant told him that he had not any time or respect for Miss Milekic. Mr Kazamias told him that all employees must work as a team. He agreed that he did not exhort the applicant to improve his relations with fellow employees, or his job would be at risk.
Miss Newman has been the stationery section manager for about 2 years now. She would see to it that stamp work docket forms would be filled out, for passing on to the applicant to produce the required orders. She places the incident between Miss Sabey and the applicant, in which Miss Sabey was in tears in front of a customer, a
couple of months before the applicant’s termination. She came in on the tail end of this incident, and later that day spoke to the applicant about it. In response, he made a number of complaints about Miss Sabey. The applicant, who was quite agitated, said he did not have to work with incompetents.
Soon after, Mr Kazamias learnt of the incident between Miss Sabey and the applicant, the tail end of which was witnessed by Miss Newman. He did not speak to the applicant about it. In fact, he did not speak, in a formal sense, to the applicant again prior to his termination.
About a week or two after the Miss Sabey incident, the applicant threw a work docket across the desk at Miss Newman, and walked off. In the week before his termination, Miss Newman saw a fellow employee, a Miss Hohn, in tears. She asked the applicant what had happened, and he said Miss Hohn had been slyly taking his stamps. At the end of the week, she again spoke to Mr Kazamias about the relations between the applicant and other employees.
On the day of termination, 11 October, 1994, the pre-print supervisor, to whom the applicant reported any computer imaging problems, a Lee Caruthers, had had a problem with the computer ordinarily used by the applicant and others. She spoke to the applicant about it, at about 1.30 pm. She was trying to explain the problem to him, when he said words to the effect that she would be the last person he would ask for help, and she had been there (at Colemans) too long. He said this loudly. She started walking away from him. He was yelling at her. She began to cry and went to the respondent’s board room. She swore that while the applicant had been abrupt with her sometimes, there had been no real problems in their working relationship until that day.
Mr Coleman had been away from Darwin in the days preceding 11 October. On his return, he was in a briefing which was interrupted when he went to the board room and saw Miss Caruthers crying. He tried to pacify her. He then received a briefing from Mr Kazamias, who told him what had happened between the applicant and fellow employees over the several months.
Mr Coleman found the applicant in the stamp room at about 3 pm. He said words to the effect that the applicant’s employment was terminated. He had been upsetting staff. The applicant denied it. Mr Coleman said he did not accept his denial, and would like him to leave the premises. He mentioned the incident that day with Miss Caruthers, and said he could not put up with the applicant treating staff like that. The applicant was allowed to gather his personal effects, say goodbye to some employees, and was escorted from the premises.
About two weeks later the applicant received a letter (exhibit A1) under the hand of Mr Coleman which stated that his employment was terminated on 11 October 1994 at 3 pm, “for reasons indicated at that time”.
In the light of these findings, I am satisfied that the respondent had a valid reason within the meaning of subsection 170DE(1) of the Industrial Relations Act 1988 for the applicant’s termination, that being connected with the applicant’s conduct towards fellow employees over the period of his employment. The termination was not otherwise harsh, unjust, or unreasonable. It may be, as the applicant himself stated, he was over-qualified for the job, and its mundane features caused him to become overly irritable and intolerant of those with whom he had to work. He struck me as being a prickly character.
As to procedural fairness, there is little doubt on the evidence that the applicant was not given the opportunity to defend himself against the allegations made against him. It is not as if he were on a final and timely warning about his relations with fellow employees. It is clear that Mr Kazamias had only spoken to him about such relations about six months before, and at that time he was not warned about the consequence of any future incidents. Mr Coleman was no doubt irate, not only having seen the state of Miss Caruthers, but also learning from Mr Kazamias of some of the other employee incidents involving the applicant. A cooler head should, however, have prevailed and the applicant have been given the opportunity to give his version of the incident with Miss Caruthers. The previous incidents should also have been taken up with him, and he then be left in no doubt that any further such incidents might result in the termination of his employment.
Section 170DC of the Act is not difficult to comply with. The principle embodied in it represents part of what Australians call “a fair go.” The employee is to be given the opportunity to defend himself or herself against the particular allegations of misconduct that are putting the employee’s job at risk. For paragraph 170DC(a) to be satisfied, it would have been necessary for Mr Coleman to determine what aspects of the applicant’s conduct were such as to justify possible dismissal and put those matters squarely to him, under circumstances where he had a fair opportunity to defend himself. That would have had to be done at a relevant time, close to the date of dismissal. There was no urgency about the dismissal and no problem about first putting the allegations to the applicant - Nicolson v Heaven & Earth Gallery Pty Ltd 126 ALR 233 at 243-4.
The parties’ representatives submitted that reinstatement was, in this case, impracticable. I agree. I consider that in assessing compensation for the breach of section 170DC which I have found I must consider what would have been likely to occur if that breach had not occurred. On the one hand, it should not be assumed
that the applicant would have been dismissed anyway. On the other hand, it would be unrealistic to automatically assume that, if the respondent had complied with section 170DC, the applicant’s employment would have continued indefinitely - Nicolson at 246.
I proceed on the basis that the procedural irregularity in the manner of the applicant’s dismissal deprived him of a chance of retaining his employment. That chance I do not value highly, against the background of the applicant’s personal problems with a number of other employees over a substantial part of his employment with the respondent. Counselling and a warning may have caused him to temper his approach to other employees, but, I fear, not for long. It is not insignificant in this regard that one of the persons he had reduced to tears was one of those to whom he was required to answer.
At termination the applicant was being paid $517.89 gross per week.
After taking into account the week’s pay in lieu of notice, I consider that appropriate compensation is the sum of $3000. The orders I make are:
1. The application be allowed.
2. The respondent pay to the applicant the sum of $3000 within 14 days of
today.
I certify that this and the preceding FOUR (4) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 11 July 1995
Appearing for the Applicant: Mr Crawford
Appearing for the Respondent: Mr Chizmesya
Date of hearing: 10 & 11 July 1995
Date of judgment: 11 July 1995
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