Carter v All Crash Parts [2001] QIRC 158 (2001) 168 QGIG 142

142 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 October, 2001 ######################################################################################################################### ## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Stephen Carter AND All Crash Parts (No. B1005 of 2000) COMMISSIONER BLOOMFIELD 4 October 2001 Reinstatement – Dismissal – Termination of Employment – Store worker – Work performance – Witness Evidence – Arbitrated Matter – Commission found Applicant was on second probationary period – Verbal warnings given to Applicant – Applicant had opportunity to respond – Applicant’s work performance was unsatisfactory – Dismissal not unfair – Application dismissed – Application by Respondent for costs dismissed. DECISION On 13 July 2000 Mr Stephen Carter lodged an application which sought relief regarding his alleged unfair dismissal by All Crash Parts at Newman Road, Zillmere. Conferences were held before Members of the Commission on 31 August 2000 and 8 June 2001. At the second conference the respondent said that the matter had been settled in a telephone conversation between its Managing Director, Mr Campbell, and a union official representing Mr Carter at some stage about a month after the first conference. This was denied by Mr Carter who said that the alleged settlement had not been authorised by him. Mr Carter also rejected the respondent’s offer when it was renewed at the second conference. He asked for the matter to be set down for trial. The Applicant’s Evidence Mr Carter said he had been engaged by Mr Campbell on 1 March 2000 in a stores capacity on a one month trial. He said he had been confirmed in permanent employment at the end of the trial period when the respondent provided him with a number of work shirts. He said he spoke to the Managing Director at that time and asked Mr Campbell to let him know if management ever had any concerns about his work performance because he needed the job. Mr Carter said the only time he was spoken to was on 2 May 2000 when Mr Campbell told him to stop using his mobile phone at work or he would be sacked. Mr Carter said he was given a week’s notice by the company’s northside Manager Mr Dean, on Monday 26 June 2000 allegedly because of poor work performance. Mr Carter said he queried the reason of “poor work performance” and the lack of any warnings. He said that Mr Dean told him that Steve Campbell, Shaun Hachem and Cameron Whitehead had each spoken to him about his performance. Mr Carter said that after Mr Dean gave him notice he went to an area where he was due to start work. He looked at the work which was required and decided that he did not wish to do it, instead returning to Mr Dean and saying words to the effect that he would not work for the company any longer and that they would be hearing from him. The Respondent’s Evidence Mr Campbell said he advised Mr Carter at the end of the one month probationary period that he was not satisfied with his performance and would not be offering him a permanent position. He said that Mr Carter became emotional and pleaded for a further opportunity because of his poor financial position caused by a recent divorce. Mr Campbell said he took pity on Mr Carter and decided to continue him in employment by extending his probationary period until 30 June 2000. During the conversation Mr Carter asked could he be given some work shirts because he was tearing his own. Mr Campbell said some secondhand shirts were provided. New shirts are only made available once an employee is made permanent. -- 1 of 3 -- 19 October, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 143 Mr Campbell said the company had experienced a number of problems with Mr Carter during his period of employment. Mr Carter had been warned about talking to other employees instead of working. He had been warned about excessive use of his mobile phone during working hours. He had also been spoken to in very strong terms after he and another employee short-shipped a quantity of product to a new Adelaide distributor which cost the company money and negatively impacted upon its reputation. He had also been spoken to on many occasions about errors in labelling and continually putting items in the wrong bin locations. Mr Campbell said that because of the problems which were being experienced Mr Carter was ultimately shifted to the southside operation in the position of yardman after a vacancy had arisen at that location. The yardman’s position did not require great memory skills and it was thought that it might be more suitable for Mr Carter, who had been injured in a motorbike accident and was prone to memory loss. The respondent said that there were further problems with Mr Carter at the new location. For example, Mr Carter was alleged to have collected certain items from the tip during the course of a work-related visit and to have attempted to sell them to his work colleagues. He was also accused of disrupting other employees during their working time by attempting to sell them secondhand clothing. A statement from the southside Manager, Mr Hachem, indicated other employees also allegedly complained to him that Mr Carter was avoiding work and not pulling his weight. He would pretend that he was working whenever the Manager approached. Mr Hachem also said Mr Carter would not work unassisted, such as loading a truck with damaged bumper bars which had to be taken to the tip. Mr Campbell said that he spoke to both Mr Dean, the northside Manager and Mr Hachem, the southside Manager, about Mr Carter’s performance on Friday 23 June 2000 when it was reported to him that Mr Carter’s performance continued to be satisfactory. Mr Campbell established that Mr Carter’s probationary period expired on 30 June 2000. He said that he spoke to Mr Dean and instructed him to advise Mr Carter first thing on the following Monday that his extended probationary was to expire and that the company had decided not to continue to offer him employment because his performance continued to be unsatisfactory. Mr Dean gave evidence that he informed Mr Carter on 26 June that the company would not be offering him a permanent position because of his poor work performance. Mr Dean said that he told Mr Carter that Mr Campbell would be back at work the following day and that he could discuss the specific warnings and the company’s reasoning should Mr Carter wish to do so. Mr Dean confirmed that Mr Carter said that he would not work for the company any more and that he left the premises shortly after having been given his notice. Was Mr Carter on probation? Ms Reynolds, who represented the respondent, conceded that Mr Carter was not an excluded employee within the meaning of s. 72(3) of the Industrial Relations Act 1999. However, she indicated that the extension of Mr Carter’s probation by an additional three months was clear warning to him that his performance was unsatisfactory and that it needed to improve. She submitted that it was also relevant in any assessment of the merits of the application. After considering the evidence of Mr Carter and of Mr Campbell and other witnesses I have reached the conclusion, on the balance of probabilities, that Mr Carter was informed at the end of the expiry of the first probationary period that his continued employment was conditional upon an extension of the probationary period until 30 June 2000. I do not accept Mr Carter’s evidence that his employment was confirmed after one month. Mr Carter’s evidence that he asked Mr Campbell to tell him if management had any concerns about his performance is consistent with the fact that Mr Campbell did express concerns about Mr Carter’s performance before agreeing to continue to employ him on an extended probation. I am satisfied that Mr Carter accepted Mr Campbell’s offer to continue him in employment subject to an extension in the probationary period. I am satisfied that that agreement was concluded when Mr Carter shook Mr Campbell’s hand to thank him for the opportunity to continue in employment. The fact that an employee is on probation is a relevant consideration in deciding whether a dismissal is harsh, unjust or unreasonable. In that regard, the mere existence of a probationary period does not stand in the place of a warning. It is still necessary for the employer to raise any performance concerns with an employee and to provide coaching and corrective advice rather than simply waiting to the end of the probationary period and terminating the employee (see Buckman and Burford v Burdekin Resources NL (1998) 85 IR 415). Was Mr Carter warned about his performance and given an opportunity to respond? I am satisfied – after considering the evidence of Mr Carter, Mr Campbell, Mr Whitehouse and Mr Dean – that Mr Carter was spoken to on a number of occasions during both his first and second probationary periods about the company’s concerns with his performance. Whilst particular dates have not been provided I am satisfied that the company raised its concerns with Mr Carter and that he was given ample opportunity to respond to such concerns at the time that they were raised. Further, Mr Carter was provided with the opportunity to correct his performance to overcome the problems and deficiencies which had been drawn to his attention. Mr Campbell raised his concerns about Mr Carter’s performance when he spoke to him about talking too much to other employees and using his mobile phone when he was meant to be working. Mr Campbell also expressed his very serious concerns about Mr Carter’s performance when he addressed a staff meeting following the Adelaide short shipment incident (above). Whilst Mr Carter denied that his name had been specifically mentioned during the staff meeting I am satisfied, from the evidence of Mr Garnham and the other witnesses, that it was. I am also satisfied that Mr Whitehouse regularly spoke to Mr Carter about shortcomings in his work. This included wrongly labelling product and placing items in the wrong bin locations. Whilst there is limited material before the Commission which covers Mr Carter’s relatively short time at the southside operation, I am satisfied that the company continued to experience some performance problems with Mr Carter which necessitated Mr Hachem speaking to him on several occasions. Mr Hachem’s concerns were such that he ultimately phoned the northside Manager, Mr Dean, to inform him that he no longer wished to have Mr Carter at the southside operation. Mr Hachem told Mr Dean that Mr Carter’s performance was not satisfactory and that his lack of effort was having a negative impact on the culture of the rest of the southside team. That phone call caused the senior management of the company to review Mr Carter’s continued employment. Mr Campbell said that he established that Mr Carter’s second period of probation was due to expire on 30 June 2000. Having regard to Mr Carter’s unsuitability for work in the northside operation, and what had subsequently transpired at the southside operation, he took the decision to ask Mr Dean to terminate Mr Carter’s employment. Was the termination unfair? After considering all of the material presented I have decided that the company’s decision to terminate Mr Carter’s services was not unfair within the meaning of the Act. -- 2 of 3 -- 144 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 October, 2001 The evidence is that Mr Carter was initially engaged on a one month probationary period. That probation was extended by an additional three months in the circumstances set out above. During the whole of Mr Carter’s period of employment – of less than four months – he was spoken to on a number of occasions about the respondent’s concerns with his performance. He had a poor work ethic, had a high error rate in his stores role and demonstrated that he could not work independently. In the hope that some role might be found for him he was transferred to the southside operations in a role which was less demanding and more menial. He was told upon his commencement at that location that it was his last chance to prove himself and that if he could not he would not remain employed. Sadly, Mr Carter’s whole approach to his work did not improve and the company made a decision to terminate his services. I am satisfied that the decision to terminate Mr Carter was one which was entirely open to the respondent. It had taken pity on Mr Carter at the end of the first month and decided to extend his probation. Over the next three months Mr Carter’s performance did not improve despite the company’s attempts to correct his deficiencies and to find a role for him somewhere within its operations. It required people who were largely able to work unsupervised and who could be relied upon. At the northside operation it also required people who could perform their work without making errors. Sadly, Mr Carter did not possess those qualities. There was nothing which was harsh, unjust or unreasonable about the termination. The application is dismissed. Costs Through its representative, Ms Reynolds, the respondent sought costs on the basis Mr Carter pursued the matter vexatiously so as to cause the respondent to incur legal costs. I have seriously considered the application in light of the substantial lack of merit in Mr Carter’s application. However, at the end of the day, I have decided not to award costs. Mr Carter genuinely believes that he did not receive any warnings during the course of his employment. Whilst the respondent has successfully convinced me that warnings were provided, there was no documentary evidence to support its contentions. The whole matter turned upon my acceptance of the evidence given by the respondent’s witnesses ahead of that given by Mr Carter. I am not satisfied, after seeing and hearing Mr Carter, that he made the application vexatiously or without reasonable cause or was engaged in an unreasonable act or omission in connection with the conduct of the application. He genuinely believed that no warnings had been given to him. In that regard, it was an agreed fact that Mr Carter had been involved in an unfortunate bike accident and that he suffers from memory loss. In such circumstances he should not be penalised because he did not recall any of the warnings provided to him. Had the respondent produced documented warnings, and had these been made available to Mr Carter before any hearing, then there may well have been a different approach taken to the costs issue. The respondent’s application for costs is rejected. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Released: 4 October 2001 Appearances:– Mr S. Carter the Applicant appeared on his own behalf. Ms A. Reynolds, with Mr S. Campbell, for All Crash Parts. -- 3 of 3 --