Walter Martin and Transport Workers Union of Australia v Buttercup Bakeries

[1995] IRCA 55

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - loss of driver’s licence - licence essential for performance of duties - allocation of alternative duties - inability to perform alternative duties.

Industrial Relations Act 1988,

WALTER MARTIN AND TRANSPORT WORKERS UNION OF AUSTRALIA v  BUTTERCUP BAKERIES

No. WI-412/94

Before: Ryan JR

Place:                 Melbourne

Date:                  16 February 1995

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY  Matter No WI-412/94

B E T W E E N:       WALTER MARTIN
  AND TRANSPORT WORKERS UNION OF AUSTRALIA
  Applicant

AND:    BUTTERCUP BAKERIES

Respondent

RYAN JR

MINUTES OF ORDER

16 February 1995

THE COURT ORDERS THAT:

The Application be dismissed.

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

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY  Matter No WI-412/94

B E T W E E N:       WALTER MARTIN AND
  TRANSPORT WORKERS UNION OF AUSTRALIA
Applicant

AND:    BUTTERCUP BAKERIES
  Respondent

COURT:               RYAN JR

PLACE: MELBOURNE

DATE:                   16 FEBRUARY 1995

JUDGMENT EX TEMPORE

LOSS OF DRIVER’S LICENCE

I have concluded that there was a valid reason for termination initially associated with the conduct and capacity of the applicant, and later, in terms of the temporary position, the capacity of the applicant.

In relation to his substantive position, without dispute he lost his licence.  A licence to drive a motor vehicle was an essential component of his duties.  In my view it might well have been open to the employer to terminate the employment of the applicant at that stage on the basis that he was not in a position to comply with a fundamental element of his contract of employment. 

ALTERNATIVE DUTIES

However, it is clear that the employer either suggested to the applicant the provision of alternative duties or at the very least, and probably the latter, agreed with the applicant to offer the applicant alternative duties.  I think in these circumstances it matters little (except perhaps in terms of weighing the possibility of harshness) whether it was the applicant who suggested that one option would be that he take leave, or it was the employer who, as a first option, suggested to the applicant that he should take leave.

POSSIBLE OPTION OF LEAVE

The leave option was not pursued but it is clearly a fact that the employer as a first option suggested to the applicant that he should take leave. That option was not pursued and it is clearly a fact that the employer, irrespective of who took the initiative, agreed to offer to the employee alternative duties.

PERFORMANCE OF ALTERNATIVE DUTIES

We turn now to the performance of the alternative duties.  There is no dispute that the applicant had difficulty with the alternative duties.

There is no dispute that the applicant made a number of errors in relation to the performance of those alternative duties.  It is clear from the evidence of Mr Hauswirth.  He was responsible for the oversight of the alternative duties, and indeed for whatever element of training might be thought to be a requirement, a fair requirement, to place on the employer given that the employer had decided that the alternative duties would be offered.

I am satisfied that despite the fact that Mr Hauswirth was not enthusiastic, clearly not enthusiastic, about the proposition of having the applicant work for him, and while I am also satisfied that the applicant would have experienced some difficulties in working with Mr Hauswirth, nevertheless I am satisfied that Mr Hauswirth did take reasonable steps to explain the duties which were not overly difficult, or demanding.

I am also satisfied - and this is more important - that when it became clear, and it became clear immediately, that the applicant had difficulties with the performance of those duties, and indeed made errors in relation in relation to the performance of the duties, I am satisfied that Mr Hauswirth took reasonable steps to assist the applicant. 

I am satisfied that he went as far as to take the applicant through some of the errors that he had in fact made.  It is clear that Mr Hauswirth brought to the attention of Mr Wilmot the concerns he had, and the fact that the errors were continuing. While I have no way of assessing the actual cost to the company, despite some assessment in evidence (on which I would put no weight) it was nevertheless clear that the sorts of errors that were occurring and were continuing were not without considerable cost to the company.

COUNSELLING ON PERFORMANCE

I think it was quite understandable that Mr Hauswirth would bring those matters to the attention of Mr Wilmot, given the way in which the allocation of the alternative duties had come about through the representations of Mr Wilmot.

We come to the meetings with Mr Wilmot, and I would agree with Ms Ponnuthurai that in terms of those meetings and indeed the evidence of Mr Wilmot, that he only put the performance (the inadequate performance of the applicant) to the applicant in a fairly general sense.

He did not have and could not have had, because it had not been prepared, the detailed report which was later prepared (and I find probably only provided on the day of termination).  He did not have that, could not have had it, and he did not provide chapter and verse or any detailed outlining of specific errors.

I find that in these circumstances, where the employer had provided an alternative option to the employee in circumstances where that was a fair and reasonable thing to do, but not by any means a required thing to do, that the natural justice requirements of putting the concerns to the applicant were adequately met by a combination of the general description of those matters and the exhortations to the applicant that he had to improve his performance.

I find that that was adequate when combined with what I have also found was a considerably more detailed, if at times, brusque and even impatient, outlining of the faults by the immediate supervisor Mr Hauswirth and assistance and advice from Mr Hauswirth in relation to addressing those faults.

I find that in those circumstances there were more than adequate opportunities given to the applicant to achieve an adequate performance of the duties.  I think it is perhaps a sad fact of life that this particular applicant may not have been capable within a short or even a long period of effectively and adequately mastering these duties.  What I am saying is - it may not be so but it is possible - that these particular duties were not only then beyond the competence of the applicant but may have remained beyond the competence of the applicant in any event.

FINDING

In all those circumstances, I find that not only were there valid grounds for the termination of the applicant but that the ultimate decision which was the termination was not harsh, unjust or unreasonable within the terms of division 3, part VIA of the Industrial Relations Act 1988.

I will say in relation to the conclusions that I have reached - and I think this is important - I am not satisfied that the applicant himself made it crystal clear at the final meeting, which was indeed in the end the termination meeting, that he would have then and there and immediately taken the alternative option, the initial option of leave without pay. But even if he did and even if, at that stage, the employer elected not to resurrect that option, I do not, on that account find that that would have created an element of harshness or unfairness or injustice such as would make a valid termination invalid.

It follows from what I have said and from what I have concluded, that the application under section 170EA for reinstatement on the grounds of unlawful termination of employment fails and in these circumstances the application is dismissed.

I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              

Date  :              2 March 1995

Appearances:      

Solicitor for the Applicant                 :              Ms V Ponnuthurai              

For the Respondent  :              Mr Jeff Uphill, Chamber of Commerce and   Industry of Western Australia (Inc)

Dates of Hearing  :              Perth 9 February 1995
  Melbourne 16 February 1995 (Video link)

Judgment  :              16 February 1995