Fildes v Matt's Carrying Service Pty Ltd [1997] QIRC 596 (1999) 157 QGIG 17

16 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETI�E 9 January, 1998 9 January, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 ########################################################## (}I TE'iSLA"iD INDUSTRIAL RELATIONS COMMISSIO:, Workpla ce R,/arion., Act /9Y7 .s. 218 - appltca1ion for rein.<ta1t:me1\I John Stanley Filde, ;1,1arr'.< Carrying Service Pty Lid (No. 8755 of 1997) TRA'iSPORT, DISTRIIIUTION Al'\D COURIF:R INDU!HRY A WARD -SOUTHER'\/ DIVISIO'- COM�IISSIO\TiR EDWARDS 18 December 1997 Rcmstatement - Di.<mi,sal - Termina1ion of Employm�nt - Evidence - I.eave of Ahsence - Personal Busi ness - Employer \;nahle 10 Ciranl Such I.eave - l;nrea.<onahle to Reque.<t Time Off -Application Refused. DECISJO� Mr J.S. F1lde.s tiled an application on 28 April I 997 following hi., •eparaiion from Marr's Carrying Service (the Compa ny). 1hc Company' s !�1mary work i.< !he 1ran5port.a1ion of furniture with depots in Bn.shane and ;.;:,mhour. The scpara1ion resulled from a reques1 by Mr Fildes on Monday 7 April I 997 for leave of absence from that day for 1he purpose of anending to urge n1 personal hu.sine-,s. Al the Cc>n-ml<!ncement of 1he proceeding., the parties agreed 1ha1 the Transport, Distribution and Courier lndu.<lry Award - Southern Division 179826-2 w•1.'- the rd�vanl mdu.,trial m�lrum�nl with no rc:.gi...:t...:r...:d agrc<.:ment in placl.:'.. The partk, ,,ho agreed lhdt the Comp,my did no1 <.umply wi1h the· provi.sion.s of the Aw,ml. Mr hks wa.s paid a< follows per woek:- $406.60 grc>.<.s rate: S 83.25 overtime allow,rnce S •).25 handling payment. A copy nf lhe Award i., not di.,played in 1hc wnrkplai.:e. Employees are paid overtime a llowance m lieu of payment fvr ac1ual hour.s. (The Commission 1001( the opportunily 10 remind lh.: employer 1ha1 the provisions of th.: Workplace Relmionx Act 1997 enahle.s !he development of a greements 10 t,e negotiated if so des,rcdl. Initially he was engaged hy !he Company as a pan-lime or temporary driver and wa., .subscquen1ly appointed a.< a perman ent 1ruck dnvd. :vtr Files hcadquaner.s were N:..mhour and hLs regular dutie.s included travelling from Brishane 10 Cairn.� each week. While there were fkxihilitic.s in his schedule., he would normally 1rnvel lo Bri.shanc tach Mo nday in the Company truck. load it and then rc1urn 10 Namhour. After d short hreak on the Monday evening he would depart Namhour enrouto 10 1'orth Queensland. [�pendmg on circumstances he would return to Namhour on either Friday or Sa1urday. On occ.asion.s with the acknowlcdgmenl of !he Company he wou ld vi.si1 friend,/relation.s in North Queensland and return to Namhour on either Friday or Saturday. Dep ending on cir�um,tanct-s he would have a rest day for either all or pan of Monday. As such hi< hours and !ravel arrangements wae very nexible wi1hin tht weekly guideline.<. 1he Cornmi.s.si(>n acknowledge< that Mr Fildes encountered difficuhies and during recent periods it was necessary for him to attend to family mailers. In evidenc e he <JUllin ed 1h<11 upon arriving home and speaking will, his fian cee !here was a need for him to take emergency leave. He indica1ed thai he was tired on the Sa1ur day and Sunday .<o h" did nOI communicalc wilh Mr Marr un1il Monday 7 April. In hindsighl he acc0p1ed thal he should have communicated prior to the Monday. Having he,en an employer hirmdf h" realised ii was short notice hut he hdieved 1ha1 in lhe circumstance.< he had no <.,-hoice. 1hc Conuni.$sion ha., given con-;id-.ntion 10 1!1;;, namre of Ille urgem person,11 hu.<ine-,s which related lo hi� rece nl divorce and the de.sire of hi.< former wife that he ddiver persona l helonging, ;,nd furni1urc 10 her step children. Furthermore, he: i ndicated ii wa< neccs.s<tl'y for him 10 finali.se ma11er� with his solici1or. In con.,iderdt1on of cad1 of these reasons ii is ckar from hL� evidence thal the mailer., were important hu1 lhe Commission does 001 bdie:ve 1ha1 they desire !he degre.., of urgency UJX>n which he Lalegorised 1hem. There wa.s n o court order 1ha1 he anc:nd 10 the mancrs wi1hin a .<pecific 1imcframe. with !he trailer load of furni1urc nOI being delivered to Coolum un11l Thur.sday af1ernoon. He was ,•a gue on 1hs, urgency to vi.si1 he< solicitor that week. It. 1.s clear however that h e a11ended a Dangerous G,�Jd.• Course 1ha1 week after having confirmed !he enrolmenl o;, the \,fonday. By all<'ndanw at !he course he wa.< a hlc to apply for a position wilh another Company in Mackay. lo evidence Mr D . Marr, Director indica1ed t hat on Monday morning 7 i\pril 1997 Mr Fildes demanded ra1her than requested ka v<>. :vfr Marr wa.< unccrt�in as 10 the dura11on of !he leave required hut he wa.s of the undemanding 1ha1 ii w.t� for !he week. Mr Marr advised 1ha1 he wa5 unahle to grant !he request ,cs Olher employees were already partaking of .scheduled leave. ¼ F11dcs did not offer any reasons other than perso nal rea.<ons. Mr \.1arr wa, well aware of the fact that Mr Ftlde.< had c ncountere.d personal family prohlem< a.< he had heen granted leave on Olhcr occa,,nn.<. In rdatio n 10 the words u.,ed at 1he time of separation, Mr Marr io,ticated that he may hav� said the following:- "If you're not going 10 work the time, John, that you're going 10 terminate yourself.". Th-, evidence of Mr /\ Marr confim,�d that \1r Fiide.• had re4uc.�1ed time off w11h a loud d1scus.s1on cvrntuaung. Mr C. Connolly wa., nOl a pany to !he conversation and did not he<tr the full tex1 of the discussion. He s1a1ed in evidence 1ha1 he heard Mr filde.< Stal�:- "W-,11. stick your Job up your arse..". 25707_1.DOC -- 1 of 2 -- 18 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE In rdati<>n to the alkg�t,on that .\1r D. :V1arr ""�u.,cLI ;<,1r Fil,ks cf hc,n� a umoni.s1, \.ir \h,rr could no( rc:call �·uch hut lh: indit..·akd that ht:! m:::,)'· have m.Hk a <.:<1mmi;n1 along sut:h lin��- Th.! Conm1is�ion pl�h.;cs no wdght on the \:OO\nll.'nl (if n,add as �1r 1\1arr i� ., nk:mhcr of a r<..:giskr�d cmplt)yl.'r orcan1..:a11on. In v11.:w �)r hi� m\.'.mh,:rship of a rt:gistt>r�d indw•Hi,d 1..>r�.mi:,,q1tion ll 1!< ,tifft<.:ult lo accc..:pl 1ha1 h..: ,voukt ohjc:,:t t() oth.;.r ri..�r:--ons hi.!:ing nh.:mhcr." 01 an 1mtw-tria) organi�aunn. In con,1,kr.tlion of the ev1denC\:: c,wering tM nature of th� pcr.sonrtl hus11h.:-'-�. tht: ( 'ommi:-:s1<m i.-. of th-.:: Vl1-'W that 1t was u1m.::;l�tmahk for \.1r Filde.s 1,1 r�<1u,:st 11mc off w()rk when oth,·r ,.miployccs had .schc<lukd kaYc aml the employer had already sh<>wn fkxihility tnw,ird.s him. 111<· Comrni.'sion has no douht that \'lr Fild0.s needed lime to attend to certain nMttt:r�·. ho,vcVt:r I am sati�ficd that th\! ma1ta!- w..:r·c nnt of sw.:h urgency that they needed to he attc:n,ktl 10 during the wee k commencing 7 April 19')7. In partkular tht.:-re w4..; no t:vidtnC\-' to .-:uggc�t that th� mt'tting with tht: Solicitor was urgent and m regard 10 the tran.sport or the furniture it wa.s nrn undcn«k,;;n un til 4 d,1ys after . �lr Fildc., also attended a Course on Dangerous Goods which is conduct�d on regular o,ca.s1ons. Furthermore rrom �le cvickn<:c I am of the view 1ha1 .\1r Filde.< had v�ry linlc interest in working tor the Company during the week in que.stion. I am satisfie d that Mr Ftldes ahandoncd hts employment a tims: when 1t w.ts importrtlll for him to atte nd to enahle the Company I<) meet schedule.< whi,:h were already stretched hy other employcc.s on approv�d leav,,. ·11,c apphcation i.s refused. 11," CNnrni,stnn onkrs accord ingly. K.l.. EDWARDS, (\,mmi-'sioner. Ap11eara11,·P.s:- M r P. O'Brien of O'Brien anLI As.<ociatcs (>n he half of 1he applicanL ;<,1r P.(,. Boyce of Butler McDemlotl & Egan on hchalf of th� respondent. Opi.!rntlv� Dah.·: ':'J.//\ l)�dsion - Rcin.,1a,�m�n1 Rckaseli: 18 D�ceniht!r 1997 ########################################################## 9 January, I 998 lJ January. 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 -- 2 of 2 --