Dow v Hexlawn Pty Ltd [2000] QIRC 126 (2001) 166 QGIG 8

8 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 January, 2001 ########################################################################################################################## # QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Ian Dow AND Hexlawn Pty Ltd (No. B515 of 2000) COMMISSIONER BECHLY 18 December 2000 Application for reinstatement – Application for change of name of respondent – Advocate representing named respondent closely associated with person who is sought to be named as respondent – Application granted – Applicant a communications officer for towing group – Dismissed for poor performance – Application dismissed. DECISION Ian Robert Dow seeks reinstatement to employment as a communications person with Hexlawn Pty Ltd trading as The Ready Towing Group. That organisation was not the employer of Mr Dow. The actual employer was Brisbane Communication and Management Services Pty Ltd, an organisation associated with the trading name The Ready Trading Group. Reference was made to this fact on the first day of the hearing but neither the applicant’s representative, Mr R. Steinitz or the respondent’s representative, Mr M. Ready, who is the General Manager of Brisbane Communication and Management Pty Ltd, took the matter any further at that time. The name “Brisbane Communications and Management” appears as the employer on the Employment Separation Certificate and, the name “Bris Comm Mgment Services” appears on the Australian Tax Office Group Certificate. However, final termination pay information is provided on a document headed “The Ready Towing Group” incorporation, a number named towing operations. Reference is also made to Hexlawn Pty Ltd on this document. On the final day of hearing, the matter as to the correct employer was pressed by the Commission and the matter adjourned to enable the applicant to secure further information to present to the Commission as to the correct name of the employer. On 8 December the applicant sought to amend the application to replace the named respondent, Hexlawn Pty Ltd, with the identity of the actual employer, Brisbane Communications and Management Services Pty Ltd. There is an objection by the respondent. Mr P. Smith of Counsel instructed by Harvey and Associates has made representations with respect to the objection. This matter has proceeded through conference and hearings and the matter fully argued by representatives of the named respondent, Hexlawn Pty Ltd. No objection was taken by that entity until after the conclusion of the hearing proper. Correspondence tendered by Mr Steinitz (Exhibit 4/7-12) indicates that there was communication between himself and a Mr S. Spencer of The Ready Towing Group. Further, there is correspondence from Harvey & Associates of 30 June 2000, in which they refer to ‘our client: Hexlawn Pty Ltd’ and deal with the timely provisions of witness statements so that they ‘can ensure that our client complies also.’. There is other correspondence from Harvey & Associates regarding the conduct of the matter. At no stage was the issue of the correct naming of the respondent raised. There is also correspondence from Harvey & Associates to the Registrar of 25 August 2000 citing Hexlawn Pty Ltd and referring to that entity as ‘the Respondent.’. Hexlawn Pty Ltd and Brisbane Communication and Management Services Pty Ltd are entities with a close relationship. There are common directors being Mark Charles Ready and Matthew John Ready. Matthew John Ready is the Secretary of both entities. The entities have a close business connection. Brisbane Communication and Management Services Pty Ltd provides a communication facility for Hexlawn Pty Ltd to enable the conduct of its towing business. Employees of Brisbane Communication and Management Services Pty Ltd direct the employees of Hexlawn Pty Ltd as to the performance of towing activities. I was referred by Mr Smith to Raleigh v. Goschen [1898] 1 Ch 73, Clayton v. Wanganui College Board of Trustees (1911) 30 NZLR 1206 and Bourke v Isherwood [1916] NZLR 199 to support the contention that it is settled legal principle that a new defendant will not be added if it clearly appears that no existing defendant is liable and the plaintiff’s object is merely to introduce some new defendant against whom the plaintiff supposes there is a better chance of establishing liability. Mr Smith also referred to Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 QdR 12 to advance argument that, even if the amendment sought was possible, it ought not to be allowed after the close of evidence and the closing of addresses. This issue has been on foot since the first day of hearing. Had there been representation other than those who appeared, with a different range of skills, the matter would no doubt have been dealt with differently when first raised. Apart from the earlier conference process, Mr Ready chose to pursue a full defence of the allegations as to wrongful dismissal notwithstanding that he was not a representative of Hexlawn Pty Ltd. He is fact was the representative of Brisbane Communication and Management Services Pty Ltd and conducted the defence for that entity notwithstanding the naming of Hexlawn Pty Ltd in the application. -- 1 of 3 -- 5 January, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 To allow the amendment as sought is the exercise of a discretionary power. In Raleigh v. Goschen His Honour Justice Romer commented that “the only question to my mind is, whether this is not a case in which an amendment ought to be allowed” and that “[it] follows that, in my opinion, the present action as it stands is misconceived and will lie; and the only further question I have to consider is whether I ought to give the plaintiffs leave to amend as asked by them. On consideration I think I ought not; for what the plaintiffs are seeking to do is to change one action into another of a substantially different character.”. That last point is not the case before me. If the matter was re-argued against Brisbane Communication and Management Services Pty Ltd the facts and contentions would be the same. In Bourke v Isherwood His Honour Justice Chapman held that as neither the pleadings nor the evidence would be available if the application to amend were granted, and as such an amendment would make an entirely new action, the application should be refused. In Clayton v. Wanganui College Board of Trustees it was held that the effect of the amendment sought would be to introduce an entirely new cause of action and the application must be refused. As earlier stated, the defence of the matter before me was conducted as if the respondent was Brisbane Communication and Management Services Pty Ltd. The action would therefore be the same if the matter was re-tried. In Finborough Investments Pty Ltd v Airlie Beach Pty Ltd it was held that in deciding whether to grant leave to amend a pleading after the close of evidence the court was entitled to weigh in the balance the strain that litigation places on litigants, the anxieties occasioned by facing new issues, the raising of false hopes, the legitimate expectation that the trial would determine the issues one way or the other, the undesirability of giving an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence and the necessity in the interests of the community that legal business be conducted efficiently. In that matter His Honour Justice Shepardson made reference to the judgment of Lord Griffiths in Kettleman v Hansel Properties Ltd [1987] AC 189 and to other matters which followed that decision with approval The exercise of the discretion to substitute one entity for another after evidence and addresses have been concluded is unusual but, in the circumstances before me, the interests of justice will be served by allowing the amendment sought. The issues are the same, the strain of further litigation on the parties is removed, the pressure on the resources of the Commission will be reduced and the applicant will have the issue determined by the trial already completed. I also take into consideration the relationship between the entity named in the application and the entity sought to replace that by the amendment, the manner in which the defence has been conducted (as if the employer now sought to be made the respondent was in fact the respondent) and the conclusion I have come to with respect to the initial application. To strike the matter out in these circumstances would not serve the cause of justice to all parties. I allow the application to be amended so that it is now directed against the employer Brisbane Communications Management Services Pty Ltd. Mr Dow commenced employment with the respondent on 7 June 1999 and was terminated on 20 March 2000. The employment separation certificate states that the reason for termination was unsuitability for the type of work in which he was engaged. During his employment he was required to operate communication equipment being two way radios, pagers and telephones to communicate with tow truck drivers and customers to arrange transportation of damaged vehicles and movement of heavy equipment. Prior to employment with the respondent Mr Dow was for about eight years a commission driver of a tow truck owned by another person but operating under the control of an organisation known as Yellow Towing and managed by a John Charles Ready, a nephew of the operators of The Ready Towing Group. There was no association between Yellow Towing or The Ready Towing Group until an arrangement was entered into in 1999 for The Ready Towing Group to purchase Yellow Towing. That purchase would have led to the cessation of the work available to Mr Dow. Because there existed a close personal relationship between Mr J.C. Ready and Mr Dow as a result of assistance rendered by Mr Dow to him concerning a traumatic family matter some years beforehand, Mr J.C. Ready introduced Mr Dow to the operators of The Ready Towing Group with the intention of him securing a position in the communications operations of the Group. Mr Dow complains that after commencing employment he was given inadequate training as to his duties. During the hearing his memory was refreshed and he gave grudging recognition to training courses which he attended, instruction manuals provided and updated from time to time and price books setting out the various charges applicable to the services provided. Mr Dow also stated that at no time was anything said to him by anyone in authority that would suggest that there was any dissatisfaction with his employment. Mr Dow, in the nine months of his employment, was moved through three sections of the communications operation. It is the respondent’s evidence that these moves were necessitated by Mr Dow’s poor performance and that he was informed each time he was moved that his performance was unsatisfactory. It was the evidence of all witnesses called by the respondent that Mr Dow created disharmony with tow truck drivers, clients and employees by the attitude he adopted. He was frequently sarcastic, unhelpful and failed to follow procedures contained in the manual to the extent that physical violence to him was threatened by a driver and an altercation developed in the office with a long-term communications employee. He addressed drivers as “egg head”, “jug head”, “dum dum”, “dodo”, “boof head” and “bull” which appears to have offended them, although Mr Dow stated that these were nick names commonly applied to them in the industry. Mr Dow complained that drivers were frequently deliberately slow to respond to his calls and only responded promptly when one of the managers took over the two way radio on an occasion when there was a build-up of work. The inference to be drawn from this evidence is that drivers ganged up on him to prevent him from doing his job properly. The respondent’s evidence is that it is highly unlikely that this could occur. Field managers monitor all two way radio traffic and would be aware of delays complained of. The company was required to respond to calls within certain minimum time periods (20 to 30 minutes) and failure to do so would result in complaint from customers. Two other means of contact were provided – mobile phone and pager – which enabled quick contact to be made with drivers at all times. -- 2 of 3 -- 10 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 January, 2001 I have some difficulty accepting the evidence of Mr Dow that he was not aware that there was any concern with his performance. While there is a great deal of contested evidence about performance issues I take particular note of the fact that Mr Dow rang Mr M. Ready (Sen), the General Manager of the business, and requested an out of hours meeting with him and his wife some three months into the employment to discuss certain matters. At that meeting Mr Dow expressed the belief that some employees were acting to the detriment of the business and that he wanted to make Mr M. Ready (Sen) aware of that fact. In cross-examination Mr Dow did not deny that one of his concerns was that he was, or might be, blamed for mistakes which he states were the fault of others. The respondent’s evidence is that there were constant complaints about Mr Dow’s performance but, on their being taken to senior management, the decision was taken to take no formal action because of the family connection. However, the complaints were relayed to Mr J.C. Ready who had become a field area manager, who states that he took the matters up weekly during the first six weeks of Mr Dow’s employment and then at about monthly intervals. J.C. Ready’s evidence was that he made it very clear in common terms that Mr Dow should be concerned because his employment was under threat. Mr Dow denied that such conversations took place at the workplace but later acknowledged that he had some conversations with J.C. Ready but denied being spoken to about performance. Evidence was provided by another employee, Ms Richards, as to a discussion between Mr Dow and J.C. Ready about an incident in the office between Mr Dow and Ms Richards. It was J.C. Ready’s evidence that the problems concerning Mr Dow’s behaviour were regularly raised with him by other family management staff and he, because of the manner in which Mr Dow secured employment through him, was required to speak to him about his behaviour. Under cross-examination Mr Dow acknowledged that his memory as to a number of matters was impaired. A particular example concerns a complaint made about him that he failed to contact a customer about a delay to a job. The facts were that a driver rang in and informed Mr Dow that he was at a job but was being delayed. Mr Dow was requested to inform the customer and confirm that the customer would pay for the time of delay. Mr Dow did not do so. His evidence was that it was not his job to do so. His performance bonus was reduced by $20. His initial evidence was that this was an incorrect deduction. On being faced with the procedure contained in the manual of operations which provided that it was Mr Dow’s responsibility to contact the customer to get approval for a charge to be made for the delay Mr Dow eventually but reluctantly conceded that he was at fault. A number of witnesses were called from the communications area who stated that Mr Dow was frequently sarcastic, irritable and offensive. He seemed to have great difficulty in carrying out the work assigned to him. Mr Dow’s evidence is that there was a large volume of work which he could not cope with. Other employees stated that they had adequate training and easily coped with the work which was the same as that performed by Mr Dow. Evidence was given that Mr Dow would leave his workplace from time to time and stating that he had “had enough” and was “going to leave.”. On a consideration of all the evidence I have come to the conclusion that Mr Dow was unable to perform the work assigned to him in an appropriate manner and that he was spoken to about his performance in a manner which would clearly indicated to him that his employment was in jeopardy. I am satisfied that he was aware that all was not well with respect to his continued employment and that he contacted Mr M. Ready (Snr) to try to remove himself from blame. I am further satisfied that on at least one occasion Mr S. Spinks, the person supervising Mr Dow’s work informed him that he was being moved because of unacceptable performance. I do have concern about the process used on the day of termination. The termination occurred shortly after Mr Dow failed to confirm customer approval for a charge to be made for the delay to a truck. The decision to terminate was made before the final discussion with Mr Dow, a cheque had been prepared providing for payment for wages accrued together with one week’s pay in lieu of notice. Mr Dow states that the dismissal was totally unexpected. He was obviously given an opportunity to discuss the matter, perhaps in a limited way, because he states that he enquired as to the reason and was told that it was because his performance was not up to the standards expected. He then states that at no time previously had he been told that he was failing to meet expectations in any way. This last statement is patently untrue. I accept the evidence that Mr Dow was told many times that his performance was not acceptable. He acknowledges one such conversation. There was no rebuttal of the evidence that he walked off the job on several occasions when he couldn’t cope. He acknowledged that he dealt with drivers and others in a sarcastic fashion. It was established by his advocate that it was vitally important in the role he occupied to maintain good relations with drivers and customers. To adopt a belief that all was well with his employment in the face of these matters that occurred during his employment is unrealistic. While the formalities of counselling and termination were not perfect, the circumstances of the employment in the first place and the method used to acquaint Mr Dow with the fact that all was not well lead me to conclude that it was an appropriate process. It would appear that the final payment made to Mr Dow was short one week because he is over forty-five years of age. The respondent, Brisbane Communication and Management, is ordered to pay to the applicant Mr I. Dow the sum of four hundred and forty-six dollars and forty-nine cents (gross) within one week of publication of this decision. R.E. BECHLY, Commissioner. Released: 19 December 2000 Appearances:– Mr R. Steinitz of R.H. Steinitz and Associates, for the applicant. Mr M. Ready and Mr P. Smith of Counsel (instructed by Harvey and Associates Solicitors) for the respondent. -- 3 of 3 --