Finch v Marble Design [2001] QIRC 2 (2001) 166 QGIG 65

1 9 January, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 65 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION COMMISSIONER BECHLY Industrial Relations Act /999 - s. 74 application for reinstatement Raymond John Finch AND Marble Design (No. B258 of 2000) Application for reinstatement - Foreman of masonry business - Dismissal for performance - Application dismissed. DECISION Raymond John Finch has filed an application for reinstatement claiming unlawful dismissal by Marble Design Pty Ltd. 9 January 200 I Marble Design Pty Ltd is the successor to McEwans Marble and Granite Imports Pty Ltd which, from July 1 998, took over part ofa business operated by Elebram Pty Ltd, which traded as Batstones Marble Design. Mr Finch worked as a contractor stonemason for Elbram Pty Ltd from October 1 994 and then became a salaried foreman of the later entities after July 1 998, with a salary of $40,000 per annum. Other persons who had previously been employed as contractors were also transferred to employee status with the new business. In his role as foreman he was required to manage the factory production of marble products to spec ifications set by customers. This involved the receipt of raw material, selection of marble as ordered by client, cutting to plan or template, delivery to site and insta!Iation. Marketing of the products was carried out by Mr George McEwan Lynden (referred to as George McEwan) who held a management position, and who is himself a stonemason, and administrative, sales, estimating roles were carried out by Ms C Trembath, the sole director/shareholder and Ms S . Batstone. The relationship soured over a period of some months and his employment was terminated on 7 February 2000. It would appear t\iat Mr Finch was highly regarded by some as a tradesman who had considerable experience as a stonemason. On the evidence, however, his capacity to manage the duties required of him as a foreman were not at the l evel reasonably required of him. Both parties have complaints about each other's action. The process of hearing was reduced to various employees in opposing camps giving positive and negative evidence about the skills and personality of Mr Finch. The facts, on the material before me, are that the business was in dire straits just prior to Mr Finch's termination and that was attributed to late delivery of product in a form not acceptable to the client, the responsibility for which was laid at the feet of Mr Finch. The cause of some of these problems appear to be improperly prepared templates, loss of templates, incorrect reading of plans and specifications, poor management of work ilt progress through the factory and damage to raw materials and work in progress in the factory. Attempts were made by Mr McEwan ta introduce some basic control measures to assist in improving management of work in progress. These did not appear to get much support from Mr Finch. Mr Finch had complained, amongst other things, that Mr McEwan's son was introduced into the factory and that he was responsible for some of the problem. He further blames Mr McEwan and other employees for the poor production perfonnance from the factory. On the material before me I am satisfied that, although Mr Finch had the reputation in same quarters of being a good craftsman, his capacity to manage the factory ouput and to effectively manage other employees' performance was inadequate. Some attempts were made by Mr McEwan to assist him to introduce control measures but these were not supported. While the fault clearly does not lie entirely with Mr Finch for aU the errors and damage to raw materials and work in progress, sufficient of it does to warrant the decision made to term inate his employment. It was his role to manage work in progress to ensure timely delivery. This appears to be the major complaint against him. He' was not able to cope with this important aspect of the role. Some of the attempts were made to provide assistance in this area but not supported by him, colour coding to control the S:\PUBS & RETAIL\GAZETTE FILES\7 INDUSTRIAL\2001\D l iANUARY 200 1 \ 1 9-0 1 -0 1 \200 1 . 0 l . 1 9 - QGIG. DOC2D0 1 .0 l . 1 9 - QGIG.doc -- 1 of 2 -- 66 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 January, 2001 progress of work through the factory, correct reading of specifications to ensure customer requirements were met, suitable storage of templates, etc. also take into account that some proposals were considered to provide additional training for Mr Finch but not put into effect. 1 have come to the conclusion that the reason for dismissal was valid. In coming to this conclusion I have taken into account all the evidence given in respect to the cause of breakage and extent ofbreakage and responsibilities for breakage of raw materials and work in progress, the various allegations as to responsibility for provision of incorrect templates, the allegations about Mr Finch's demand for personal use of a new truck, and his capacity to effectively manage staff and deal with customer complaints. I accept that counselling was given to Mr Finch. While the recording of the counselling could have been in a more appropriate form I am satisfied that the action taken on at least two occasions was done in a fashion that should have alerted Mr Finch that serious problems were arising with respect to his management of the foreman's role. The conversation on the day of termination, 7 February 1999, between Mr Finch and Mr McEwan probably gave Mr Finch a reasonable opportunity to defend" I say probably because the evidence drawn on this matter was not particularly helpful. On Mr McEwan's evidence he gave Mr Finch one month's notice oftennination of employment in a round about fashion. Mr Finch was not paid for the period. Mr McEwan says that because Mr Finch filed an application for reinstatement he decided not to pay him anything, until the outcome was known. He had previously told Mr Finch he would support him until he secured another job, up to a month if necessary. The process of termination was harsh and unreasonable. l11e nature of his employment contractual arrangements would also indicate that one moii.th 's notice or payment in lieu would be a minimum entitlement. The remedy sought is reinstatement That is clearly impracticable. The relationship between Mr Finch and those closely managing the business has completely soured and, in my estimation, cannot be restored. His relationship with a range of other employees has also soured, I am satisfied that, although Mr Finch has worked as a tradesman for a considerable period, he does not have the capability to carry out the role required of him as factory foreman for the respondent and would be unable to acquire the skills within a reasonable period which would enable the factory to be managed appropriately ifhe was returned to employment. On my view of the evidence, action in accordance with s. 78(3) of the Industrial Relations Act 1999 is not available. The remedy available is that provided by s. 79 of the Act. Taking into account the manner of termination and including the fact that no payment was made on tennination by way of notice or payment in lieu of notice I order that the respondent pay to Mr Finch a sum equivalent to three month's salary within fourteen days of the pub I ishing of this decision. RE. BECHLY, Commissioner. Released: IO January 200 I Appearances:- Ms L. Wild, for the Applicant. Mr LC. Comino, of Luke Comino, Solicitors, for the Respondent -- 2 of 2 --