Wellman v York Optical Company Pty

[1996] IRCA 336

DECISION NO:  336/96 

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether termination for VALID REASON of CONDUCT OR PERFORMANCE - whether termination HARSH UNJUST OR UNREASONABLE - whether PROCEDURAL FAIRNESS

Industrial Relations Act 1988, ss 170EA, 170DE(1), 170DE(2), 170DC

PETER GORDON WELLMAN v YORK OPTICAL COMPANY PTY LTD (trading as YORK OPTICAL AND SCIENTIFIC)
VI 1171 of 1996

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  24 JULY 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1171 of 1996

B E T W E E N:

Peter Gordon WELLMAN
Applicant

A N D

YORK OPTICAL COMPANY PTY LTD
(trading as YORK OPTICAL & SCIENTIFIC)
Respondent

MINUTES OF ORDER

24 July 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. The application is 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
VICTORIA DISTRICT REGISTRY

VI 1171 of 1996

B E T W E E N:

Peter Gordon WELLMAN
Applicant

A N D

YORK OPTICAL COMPANY PTY LTD
(trading as YORK OPTICAL & SCIENTIFIC)
Respondent

REASONS FOR DECISION

24 July 1996  PARKINSON JR

This is a decision in relation to an application made pursuant to s170EA of the Industrial Relations Act 1988 (“the Act”). My findings of fact are as set out below, together with my findings as to the operation of ss.170DE(1),(2) and 170DC of the Act.

The applicant was employed by the respondent at its specialist optical outlet located in Melbourne’s central business district.  He was employed as the store manager on 17 May 1994.  The head office of the respondent is located at Brisbane.  The respondent has retail and wholesale outlets throughout Australia.  Mr Misins is the managing director of the respondent and was the applicant’s immediate superior.  The applicant was subject to direction from Mr Misins and accountable to him directly for his performance.

The applicant’s duties included the management and operation of the store, staff selection, responsibility for stock including stock management, together with attendance on retail and wholesale customers.  His duties were set out in a duty statement which was exhibit R2 in the proceeding.  Whilst the applicant denied receiving the duty statement, I am satisfied that the duty statement was provided to the applicant at a meeting of state managers and the managing director on 11 June 1994.  This meeting was conducted at Brisbane, and the applicant, together with store managers from other states, was in attendance.  The duties and responsibilities of all managers was discussed, and after that discussion the duty statement was provided, together with other papers associated with the agenda.

The evidence of the respondent was that during the course of the employment the respondent became concerned as to the stock management methods utilised by the applicant.  Mr Misins’ evidence was that there was no stock management system in place, but that the applicant simply relied upon an order-after-sale system of replacing stock.  His evidence was that this matter was raised with the applicant on a number of occasions, and that the applicant was requested to implement a stock management system by keeping records of stock numbers and orders.  This system was apparently one operated by other branches of the respondent and was approved of by Mr Misins.

The applicant failed to implement any stock control system despite numerous requests.  After some time the applicant was directed to implement a particular stock control system.  The evidence is that he failed to implement the system even after being directed to do so.  The evidence is also that he was derogatory in his comments to another employee as to the capacity of Mr Misins and his ability to manage the respondent.  His criticism centred upon his dislike of the instruction which had been given to him regarding stock control.  The comments were made to a long-standing employee of the respondent, the warehouse manager, Mr Gibson.  It is evidence of the applicant’s lack of discretion that, having worked for the respondent for only a few months, he purported to speak in such terms about the managing director to another employee he has never met personally, and about whom he knew nothing.  As it turned out, Mr Gibson was loyal to Mr Misins and was offended and concerned by the tone of the applicant’s comments and by what he perceived to be his propensity to troublemaking.  He reported the remarks to Mr Misins and confirmed that report later in a written complaint, which was exhibit R3 in the proceeding.  The evidence is that the applicant knowingly and deliberately failed to implement the stock system requested because he did not believe it was appropriate.  In this regard he deliberately ignored an instruction of the managing director of the business.

In November 1994 an incident occurred with a customer who had brought what he described as an ‘heirloom brass telescope’ to the respondent for repairs.  The telescope took longer than the applicant had anticipated to be repaired.  The evidence is that the applicant handled the customer’s complaints in relation to this delay poorly.  This was unwise, in that the customer was an employee of a larger institution which used the respondent for its equipment repair work.  The difficulties with this customer increased, however, when the applicant, having retrieved the item from the repairer, left the item on the seat of his car, which was left parked in a car park overnight.  Not surprisingly, the telescope was stolen from the vehicle.  The applicant’s treatment of the customer by, on his own evidence, pointing to the terms of the receipt as indicating that the respondent would not be liable for any loss or damage, was dismissive.  When the customer wrote and complained to the managing director, Mr Misins, the applicant roundly chastised the customer for doing so.  The applicant’s conduct in relation to this incident was crass and lacked any kind of sensitivity either to the needs of the customer or the business of the respondent.  Ultimately, negotiations for compensation between Mr Misins and the customer resolved the matter.

It is apparent that as part of the duties of the applicant as manager of the store, he ought to have been competent to resolve the difficulty which he, by his own negligence, had created.  It is equally apparent that he was not.

In September 1995, Mr Misins received a telephone call from a person who had attended for a job interview with the applicant.  The evidence of Mr Misins was that the interviewee had expressed her objection to the manner in which the applicant had conducted the employment interview.  The complaint which was made by her was that the applicant had pursued personal matters in the interview, such as informing her of the details of his personal life, and inquiring of such matters as the interviewee’s star sign.  Mr Misins’ evidence was that the interviewee had also informed him that the applicant had informed her of the nationality of Mr Misins’ wife, and had observed to the interviewee that all the profits of the respondent went offshore to Taiwan.  The interviewee complained of the applicant’s conduct as being harassment.

On 20 October 1995 Mr Misins was present in Melbourne.  As a result of the matters set out above he had been contemplating terminating the applicant’s employment.  He arranged to attend at the premises early on that morning.  When he arrived the applicant was not yet present at the premises and did not arrive until 9.00am.  Mr Misins’ evidence was that he observed that no stock control system had been implemented despite his instructions.  His evidence was that when the applicant arrived he raised with him this issue together with the complaint by the job interviewee.  The applicant denied that he had made a number of the comments complained of.  Initially he described the interviewee as a liar and a bitch.  He conceded after a short time that he had discussed some aspects of the respondent’s offshore connections with the interviewee, and that he had discussed some personal matters.  The response by the applicant to the matters put by Mr Misins confirmed the latter in his view that it was necessary to terminate the applicant’s employment. 

I am satisfied that the respondent had valid reason to terminate the applicant’s employment, and that that reason was as a result of the applicant’s conduct and work performance. I am so satisfied having regard to the findings on the evidence set out herein. I am satisfied that the respondent did not contravene s170DE(1) of the Act. I am satisfied that the applicant had sufficient opportunity to be heard in relation to the allegations against him. I am satisfied that the respondent complied with its obligations pursuant to s170DC of the Act.

As to s170DE(2) of the Act, there is no evidence before the court which suggests that the termination of the employment was harsh, unjust or unreasonable. The applicant has not satisfied the court that the termination of the employment contravened the requirement that the termination not be harsh, unjust or unreasonable.

The application made pursuant to s170EA of the Industrial Relations Act 1988 is dismissed.

I certify that this and the preceding five (5) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate:
Dated:  24 July 1996

APPEARANCES

Applicant in person

Counsel appearing for the respondent:  Mr I Dixon
Solicitors for the respondent:  Baker & McKenzie

Dates of hearing:  7 June 1996