Walter W Keating v W D Rose Funeral Services a division of Service Industries of Australia Pty Ltd

[1995] IRCA 59

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1867 of 1994

BETWEEN:

WALTER W. KEATING
Applicant

AND

W.D. ROSE FUNERAL SERVICES
A DIVISION OF SERVICE INDUSTRIES OF AUSTRALIA PTY LTD
Respondent

REASONS FOR JUDGMENT (EX TEMPORE)
(Revised from Draft Transcript)

16 February 1995  Judicial Registrar Murphy

Introduction

This is an application under Division 3 of Part VIA of the Industrial Relations Act whereby the applicant alleges that his employment was unlawfully terminated by the respondent from whom he seeks compensation. The applicant commenced employment with the respondent on 23 August 1994 and ceased employment on 4 October 1994. He was given one week’s notice on 27 September 1994. He worked with the respondent as a funeral assistant/arranger. The respondent’s business has been sold and from 17 January 1995 the respondent is no longer in the funeral industry.

Circumstances Of Appointment

The applicant responded to an advertisement in the Age newspaper which was titled:

ARRANGER-FUNERAL ASSISTANT

Well presented, mature, thinking person, 40 plus to be trained as funeral arranger-assistant.  No previous experience needed.

He had an interview with Mr Feher of the respondent and a few days after the interview was appointed to the position which paid a basic salary of $846.18 per fortnight.  Upon commencing, the respondent provided the applicant with on-the-job training in a number of aspects of its activities in the funeral industry, from the preparation of the body to the trimming of the coffin, to the actual conduct of a funeral service.

The applicant gave evidence that at no time in the course of his employment was there any formal criticism of his performance, except on one occasion where a funeral conductor admonished the three funeral assistants for the way they had conducted a particular service.  The applicant had commenced employment at the same time as two other funeral assistants.

The respondent’s evidence of Mr Feher was that on at least one occasion he had raised with the applicant the way that the applicant lifted and carried a coffin.  Mr Feher also indicated that he observed the applicant being shaky when he was lifting a coffin into a hearse and heard him grunt while carrying out that task.  Mr Feher recorded the first part of that observation on a conductors funeral report for that particular funeral.  The practice of the respondent was that the funeral conductor would present a report after each funeral service.  Two other reports were referred to:  The first said:  “Carrying out was not good, straining noise during lifting.”  The second said: “Lift and carry shaky.”

There was no direct evidence that the applicant was involved in these two funerals and the two conductors were not called.  Mr Feher gave hearsay evidence that he had been advised that the applicant was involved in those two funerals and that he was the person responsible.  Mr Feher also gave evidence that he personally participated in some of the training of the applicant in the lifting of coffins, but he did give evidence that it requires more than one person to lift a coffin, and so that this training was conducted with more than one of the staff.

On 27 September 1994 at about 5:00pm, the applicant was called into Mr Feher’s office.  On the applicant’s version, he was told that he, Mr Feher, had been told by the general manager, Mr Giannarelli, to let him go.  The applicant asked him to elaborate on the reasons and he was told he did not “carry out” properly and his conduct was not suitable.  The applicant then pressed him on the reasons and he was advised that there had been three or four complaints that his services were not good.  Mr Feher indicated that as far as he was concerned his training was progressing satisfactorily but that he was in a sense acting on orders.  He did not elaborate on the reason that his conduct was not suitable.

Mr Feher’s version of this conversation was that he made no reference to Mr Giannarelli and that he said to the applicant that he was not able to “carry out” correctly and that he was not suitable for the job.  The response of the applicant, according to Mr Feher, was that he had remedied the situation in relation to carrying out, and Mr Feher had responded that he could not afford a catastrophe and that he had received a number of complaints.

Mr Feher’s evidence in Court was that he had formed the view that the applicant was just unable to perform his duties and that his obligation to the respondent required that he be terminated because he could not afford the risk of the an unthinkable disaster of a coffin being dropped.  He was also concerned with reports that he had received of the applicant grunting when lifting as well as being shaky.  Mr Feher’s direct evidence of his own observations was however only related to one particular funeral upon which he had made the notation on the conductor’s funeral report.

The Court is then left with the position of the conflict between Mr Feher and the applicant in relation to the final interview.  The Court is inclined to accept the applicant’s version in relation to that interview for the reason that much of Mr Feher’s version of it was not put to the applicant in cross-examination.  In the ultimate result it does not matter whose version of the final interview is accepted because, for reasons which will become apparent, the interview was unsatisfactory.  The evidence in relation to the applicant’s actual performance in his duties is also not satisfactory as far as the respondent is concerned for the only direct evidence of unsatisfactory performance is the observation of Mr Feher in relation to a particular funeral service.  The only other evidence is the business records being the two conductor’s funeral reports which, as I have indicated, do not specifically refer to the applicant.

Was There A Valid Reason For Termination

It is now necessary to determine whether or not the conduct of the respondent constituted a valid reason for the respondent to terminate the applicant’s employment under section 170DE(1) of the Act. The respondent carries the onus of proof in relation to that provision under section 170EDA(1).

I am satisfied that, in the context of an employee who has only been employed for some four weeks, in a position where he was to be trained in the position, and where on the respondent’s version he had only raised with him on one occasion the question of his performance, the respondent did not have a valid reason to terminate his employment on 27 September.

Although the provisions of Schedule 11 of the Act being the Recommendation Concerning Termination Of Employment At The Initiative Of The Employer have not been directly incorporated in the Act, Clause 8 provides that:

The employment of a worker should not be terminated for unsatisfactory performance, unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed.

In this case it is appropriate to recognise that the applicant was only very new in the service of the respondent.  Mr Feher’s evidence was that the complaints in relation to his performance had only arisen in the second or third week of his employment, and Mr Feher has given evidence that he only raised them with the applicant directly once.  Further, the evidence revealed a training role play, which indicated that on Wednesday, 21 September, the applicant had received training in coffin carrying.  That was only some four business days before the applicant was terminated.

It is also clear that at no stage was the applicant given any form of formal counselling in relation to his employment, and the evidence would appear to reveal that Mr Feher took the view that the respondent could not afford any risk whatsoever and peremptorily terminated the applicant.

Further, to the extent that the respondent relies on the applicant’s conduct in relation to his duties, the only evidence is the single case of the grunting that Mr Feher heard. That in the Court’s view would not be sufficient to justify termination. For these reasons the court concludes that the respondent has not discharged its onus under section 170DE(1) of the Act.

Was The Termination In Breach Of Section 170DC

The applicant’s counsel also argued that the termination was in breach of 170DC for the reason that the respondent had not put to the applicant the allegations.  There was virtually common ground that the allegations were not specifically put to the applicant in a way that would allow him to respond.  This was particularly where the allegations related to lift and carry, which is an operation involving at least two other employees of the respondent, and in which the applicant may have had a reason to explain his conduct.

Mr Feher indicated that he did not give these specific details to the applicant, and on any view that is a failure to comply with section 170DC.

The contents of section 170DC have been discussed by Wilcox CJ in the case of Nicolson -v- Heaven & Earth Gallery Pty Limited, (1994) 126 ALR 233, at 243 he said, in relation to section 170DC:

“The paragraph does not require any particular formality but this does not mean that it is unimportant or capable of perfunctory satisfaction.  Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as “natural justice” or more recently “procedural fairness”.  The relevant principle is  that a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.  ...  It represents part of what Australians call “a fair go”.  In the context of section 170DC, it is not to be treated lightly.  The employee is to be given the opportunity to defend himself or herself “against the allegations made”, that is, the particular allegations of misconduct or poor performance that are putting the employee’s job at risk.  Section 170DC(a) is not satisfied by a mere exhortation to improve.”

Mr Feher’s evidence did not even descend to suggest that he had exhorted the applicant to improve. Rather he had brought the applicant’s performance of his duties to his attention, but not in any formal way, and rather by way of further training in coffin lifting. On this basis, the Court is of the view that there has been a breach of section 170DC of the Act.

Compensation

As I have indicated earlier, the evidence is that the respondent is no longer in the funeral industry, as a result of the sale of the business, and thus reinstatement, which is the primary remedy under the Act, is impracticable.  It is, therefore, necessary to consider the question of compensation.

The applicant gave evidence that in the interview with Mr Feher before he commenced employment he was advised that he would be in a position to progress within the company to a position a funeral arranger, and he expected to have a career in the industry.

The evidence was also that all employees of the company were transferred across when the sale of the business occurred.  On the other hand, the applicant had only been employed with the respondent for a period of some four to five weeks when his employment was terminated, and as Wilcox CJ said in Heaven & Earth Gallery (above), it is appropriate in assessing the question of compensation, to take into account events that may have occurred had there not been the unlawful termination of employment.

The Chief Justice was referring there to the fact that had a person been properly counselled then they may have improved their performance and not been terminated.  Here this may have been the case had the respondent given the applicant appropriate counselling and a warning in relation to any alleged deficiencies in his performance.  It may be that he would not have responded to that warning, and his employment may have been lawfully terminated.

It is also appropriate to take into account a risk that the new employer may have terminated him or indeed may have taken a decision not to accept him when the business transferred on 17 January 1995.  I also have regard to the age of the applicant, which is 58, the fact that he was only employed for a short period, and he had been unemployed prior to him commencing employment.  He gave evidence that he has been unemployed since ceasing employment as well.

Having regard to all these matters, I am of the view that it is appropriate to award the applicant compensation under section 170EE of the Act, and I am proposing to award the applicant compensation based on the amount that he would have earned with the respondent until the change over in business on 17 January 1995.  This is a period of approximately 15 weeks, and I propose to award the sum of $6,345.00.

Order Of The Court

1. That the respondent pay to the applicant the sum of $6,345.00 within 21 days of this date.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of Judicial Registrar Murphy as recorded in the draft transcript and revised by the Judicial Registrar.

Associate:

Dated:  

Solicitors for the Applicant: Counsel for the Applicant:	Newbury Bell Ms J. Campton
Representative for the Respondent:	Mr G. Charles of the Australian Chamber of Manufactures
Dates of hearing:	16 February 1995
Date of Judgment:	16 February 1995

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - failure to put allegations - whether procedural fairness - whether valid reason for termination - failure to give warnings.

Industrial Relations Act 1988, ss.170DC, 170DE, 170EDA.

Nicolson -v- Heaven & Earth Gallery Pty Limited (1994) 126 ALR 233

WALTER W. KEATING -v- W.D. ROSE FUNERAL SERVICES A DIVISION OF SERVICE INDUSTRIES OF AUSTRALIA PTY LTD

NO. VI 1867 of 1994

Before:     MURPHY JR

Place:      MELBOURNE

Date:       16 FEBRUARY 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1867 of 1994

BETWEEN:

WALTER W. KEATING
Applicant

AND

W.D. ROSE FUNERAL SERVICES
A DIVISION OF SERVICE INDUSTRIES OF AUSTRALIA PTY LTD
Respondent

MINUTES OF ORDER

16 February 1995  Judicial Registrar Murphy

THE COURT ORDERS THAT:

1. That the respondent pay the applicant the sum of $6,345.00 within 21 days of this date.

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