Bures v Container Swinglift Services Pty Ltd [2005] QIRC 22 (2005) 178 QGIG 189

[Extract from Queensland Government Industrial Gazette, dated 4 March, 2005, Vol. 178, No.9, pages 189-191] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement David Bures AND Container Swinglift Services Pty Ltd (No. B1650 of 2004) COMMISSIONER BROWN 21 February 2005 DECISION In an application lodged on 3 November 2004, David Bures (the applicant) sought reinstatement to his former position of Fleet Controller with Container Swinglift Services Pty Ltd (the respondent). The application was posted, according to the applicant, on or about 31 October 2004 and carried a date stamp of 3 November 2004 applied by the Queensland Industrial Relations Commission Registry staff. Common ground was that his termination occurred on 30 August 2004. The application was lodged out of time. The respondent opposed the granting of any extension of time and did so for the first time at the commencement of the hearing. The respondent stated that they were previously unaware of the need for the applicant to lodge his application within certain time limits. The applicant was also oblivious to the 21 day time frame contained in s. 74(2)(a) of the Industrial Relations Act 1999 (the Act) for such applications or the need to make application for a further period under s. 74(2)(b) of the Act. Neither party was represented in the proceedings. On the information provided to the Commission, the applicant, whilst completing the application some 2 weeks after his dismissal, simply did not forward it until some 6 weeks later (approximately 5 weeks out of time). The respondent indicated that they possessed all of the material needed to defend the action and that the passage of time had not affected or diminished the case they intended to mount. I have decided to grant the extension of time sought so that the matter is properly before the Commission. This decision is taken on the basis that no objection was raised by the respondent at any stage prior to the hearing. The parties had proceeded as though there were no impediment to jurisdiction. The applicant would be prejudiced by being denied the opportunity to have his arguments heard and determined. Whilst the respondent would not be prejudiced by the granting of the extension as they had in their possession all necessary material and information to defend the application and were in a position to proceed. Pursuant to s. 76 of the Act, the Commission was satisfied that all attempts to settle the matter by conciliation had failed and that further attempts would be fruitless. The applicant commenced permanent employment with the respondent on 13 November 2003 and remained continually employed until his termination on 30 August 2004. His conditions of employment were contained in a Contract of Service reduced to writing and executed on 10 November 2003. During a meeting on 25 August 2004, the respondent raised the issue of the level of customer service with the applicant. Common ground between the parties was that this aspect of the applicant’s performance had been discussed previously and also common was the fact that the applicant had acknowledged that in this area he was “less than 100%”. Specifically, the problem related to his failure to keep customers accurately informed of the whereabouts of containers. During this meeting, the respondent advised the applicant of the decision to transfer the applicant to day shift (9.00 a.m. start) from the earlier shift starting at 5.00 a.m. The meeting concluded with an understanding that the applicant would commence day shift duties on Monday, 30 August 2004. The applicant claimed that due to illness he did not attend for duty on Friday, 27 August 2004 and advised Mr Andrew Jenkins (the person transferred into the applicant’s former position) at 5.00 a.m. that day by text message of his non- attendance. The applicant was due to start at 5.00 a.m. The following Monday, 30 August 2004, the applicant again missed work due to illness. The applicant claimed to have text messaged Narelle Horner regarding his absence. This occurred at 8.30 a.m. -- 1 of 4 -- 2 The applicant was due to start at 9.00 a.m. Later on 30 August 2004, the applicant was advised by telephone of his termination. On the evidence of Mr Carl Marchese, Chief Executive Officer of the respondent, the failure of the applicant to notify the appropriate person or persons of his intended absences together with his past performance issues were grounds to terminate the applicant’s employment. In the view of the Commission, the issue to be determined is whether the decision to dismiss the applicant was justified by the circumstances, i.e. the past performance issues compounded by the failure to follow set procedures for the notification of absences through illness? Additionally, should the decision to terminate the applicant be found to be reasonable, was it harsh because of the manner in which the applicant was advised, i.e. via telephone while on sick leave? In evidence, the applicant accepted that in the past he had discussions with Narelle Horner and Steve Tapper regarding his performance. He described the talks as casual in nature, however, he conceded that on each occasion he had an understanding that his performance needed to improve in the area of customer advice. He described this understanding as accepting that he needed to “pull his socks up”. On the evidence of both parties, the applicant was counselled and again warned about this problem during the meeting on 25 August 2004 involving the applicant, Carl Marchese and Steve Tapper. At this meeting he was also advised of his transfer to day shift. The applicant denied having sighted an email from the respondent dated 26 August 2004 confirming their understanding of the outcome of the 25 August 2004 meeting. He claimed to have first sighted it at the conciliation conference between the parties in November 2004. Whether or not the applicant had actually sighted the email dated 26 August 2004 addressed to him from Carl Marchese does not need to be determined to establish the position as it stood in the mind of the respondent at the time. The respondent’s position was clear. The email stated (inter alia) “. . . by far the main performance issue is your failure to keep clients informed accurately of the status of their deliveries . . .” and further “we will monitor your performance in this area closely and any further breaches of this primary responsibility will lead to termination of your employment with CSS”. This was the stated position of the respondent and had the applicant been dismissed for continued under performance in this area, the Commission’s task may have been an easy one. The applicant was not dismissed for a failure to improve this area of work. Indeed, the applicant performed his normal duties on 26 August 2004 without complaint and was then on sick leave on Friday, 27 and Monday, 30 August 2004. There was no further issue with this aspect of the applicant’s work. The Commission must decide whether the applicant’s non-compliance with the sick leave notification procedures was simply an error (or 2 errors) or whether it was a deliberate display of non-co-operation by a disgruntled employee. The respondent contended that the applicant was not actually ill and that the failure to follow the previously accepted notification procedure was a display of dissatisfaction and non-co-operation by the applicant in retaliation for his being transferred and disciplined. The respondent drew the conclusion that the applicant was not ill because when contacted on Monday, 30 August 2004, the applicant answered the telephone promptly and did not sound ill. On the evidence, the respondent, and for that matter, the Commission, had no way of knowing whether the applicant’s claim regarding his illness was genuine and I draw no conclusion from the fact that the applicant did not seek a medical certificate to verify his claims. However, from the applicant’s evidence, I believe that the degree of severity of his claimed illness (upset stomach) was not such that it would have prevented him from complying with the respondent’s procedures for notifying absence. The Commission accepts that the applicant did not follow the procedures laid down by the respondent for the notification of sick leave, moreover, the Commission accepts that the applicant knew of, and had previously correctly followed, the sick leave notification procedures of the respondent. -- 2 of 4 -- 3 In the circumstances, I tend to the view that the applicant’s actions could reasonably be suspected by the respondent to be deliberate non-co-operation caused by resentment over recent events. The applicant was a middle management employee. The Commission accepts that trust and co-operation between an Employer and managerial staff are generally indispensable ingredients in the employment relationship and on the evidence the Commission further accepts that the respondent’s suspicion that the applicant’s co-operation had diminished to a point where the respondent might no longer have faith in the applicant was reasonable. On the morning of 30 August 2004, the respondent telephoned the applicant to enquire as to his whereabouts. The applicant responded by saying that he was ill and had notified Narelle Horner. The respondent advised the applicant via a subsequent telephone conversation that he had been summarily dismissed (albeit with 2 week’s pay in lieu of notice). I have accepted that the suspicions of the respondent that the applicant’s actions amounted to misconduct were held reasonably, however, I believe it to be unfair and unreasonable for the respondent to have reached firm conclusions on those suspicions without further investigation. The respondent should have at least sought a face to face meeting with the applicant to interview him and give him the opportunity to respond to the respondent’s concerns before concluding that dismissal was warranted. In Sangwin v Imogen Pty Ltd (unreported) case no. SA 95/1161R, Industrial Relations Court of Australia, 8 March 1996, Von Doussa J said: “Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.”. I agree with the above. Considering the evidence and submissions, I find the termination of the applicant to be harsh, unjust and unreasonable. I further find harshness to be present in the method used to advise the applicant of his demise, namely, via telephone whilst on sick leave. Remedy The applicant advised the Commission that he believed reinstatement to be impractical. The respondent did not disagree nor does the Commission. After the claims and counter claims made during the course of the trial, it would be difficult to re-establish the level of communication and trust required between the applicant and his managers in a relatively small workplace. Section 79 of the Act states: “79.(1) If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission. (2) The commission must not award an amount of compensation that is more than– (a) if the employee was employed under an industrial instrument – the wages the employer would have been liable to pay the employee for the 6 months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal; or (b) if the employee was not employed under an industrial instrument – the lesser of the wages under paragraph (a) and an amount equal to half the amount prescribed under s. 72(1)(e)(iii). (3) The commission must take into account any amount paid to the employee by the employer on dismissal. -- 3 of 4 -- 4 (4) This section does not limit the commission’s power to make an interim or interlocutory order.”. Hall P in Angus Stewart v Creekgold Pty Ltd t/a Zipf’s IGA Supermarket, Cooroy (No. C52 of 2003) stated: “The object of compensation is to restore the employee, as far as practicable, to the financial position in which he would have been but for the wrongful dismissal.– Atkin v Hymix Industries (1999) 160 QGIG 165 at 167 per Williams P. The starting point is to identify that which the person to be compensated has lost.”. Up to the date of hearing a total of 24 weeks and 2 days had elapsed (9 weeks and 2 days of this time was a direct result of the late lodgement of the application). The applicant was paid 2 weeks’ pay in lieu of notice upon termination (in addition to his statutory entitlements). The applicant was far less than precise as to the paid employment he had performed since his termination, however, for the period of time following his return from a visit to relatives interstate, it appears that he would have averaged 5 days work per fortnight. I accept the applicant’s submissions that he actively sought work. Calculating: 1. time wasted by the applicant because of the late lodgement; 2. 2 weeks already paid in lieu of notice; and 3. the income generated by the applicant to mitigate his loss since termination; and then deducting this from the total that the applicant would have earned in the 24 weeks and 2 days after his termination, I estimate the applicant lost approximately 6 weeks’ wages. How long the employment relationship would have continued in the absence of the procedurally flawed dismissal is difficult to estimate. However, given the history of the applicant’s performance and his apparent reluctance or inability to address the performance issues, I would estimate that the employment relationship would not have lasted beyond a further 8 weeks. Taking these matters into account and the contractual arrangement between the respondent and the applicant that the applicant work a 40 hour week and the hourly rate normally paid of $25.00, I believe I should award compensation of an amount of $6,000.00 which is equivalent to 6 weeks’ wages. I order that Container Swinglift Services Pty Ltd pay the amount of $6,000.00 (taxed according to law) to David Bures within 22 days of the date of release of this decision. D. K. BROWN, Commissioner. Hearing Details: 2005 16 February Released: 21 February 2005 Appearances: Mr D. Bures on his own behalf. Mr C. Marchese for Container Swinglift Pty Ltd. Government Printer, Queensland The State of Queensland 2005. -- 4 of 4 --