Campbell v Olympic Aluminium Pty Ltd [1996] QIRC 859 (1997) 154 QGIG 10

10 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 January, 1997 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION lndusrrwl Relarions Acr 1990 s. 29.'i application tor reinstatement Jeremiah Campt->cll AND Olympic Aluminium Pty Ltd (No R 107:\ of 1996) COMMISSIONER EDWARDS 16 December 1996 Tennination of Employment Conditions of Employment Written Policy Warnings Reinstatement OnJered Dismissal Reinstatement Evidence Company Policy of Dres~ Standard -- No Di~missal Harsh, Unjust and L:nrcasonable REPORT ON DECISION (as edited) AND REASONS In giving a decision from the Bench on 22 November 1996. Commissioner Edwards stated "In view of the evidence, submissions and exhibits, mid after consideration of the overall employer/employee relationship but more importantly, the reasons given by the employer for the dismisc;al, the Commission is satisfied that the dismissal is not valid in terms of the /nduslriai Reial ions Act 1990 and was harsh, unju;;t and unrea,,onable. The employee, Mr J. Campbell was employed in a cle1ic:1l position with Olympic Aluminium Proprietary Limited The Commission orders that Mr Campbell he reinstated on te1ms and conditions no less favourable than those upon which the employee was employed immediately before the dismissal by the employer. by either re-appointing him to the position from which he was employed or to another position. The parties arc directed to negotiate on remuneration available to Mr Campbell between 20 May 1996 and today'!'. date and any moneys received by Mr Campbell from other sources during that period must tc accommodated in the parties negotiations Should the parties be unable to reach agreement in relation to the remuneration available, the Commission will relist the matter w decide the remuneration factm The Commission orders accordingly." Reasons Mr Campbell was l1rst employed as a storeman and packer on a casual basis in the warehouse of Olympic Aluminium Pty Ltd (the Company) commencing on 4 November I 991 Mr Campbell cea.sed employment on 25 February 1994 when he left lo attend a music course in Sydney Since that time Mr Camphell ha, been employed by the Company during the following periods:- He was re-employed as a casual ston:m:m on 26 November 1994 at the Company's new premises in A1gon Street, Sumner Park He was stood-down over the Christmas hreak on 2:\ December 1994 and resumed work on 3 January 199.'\. Mr Campbell had continuity of employment until Eas;ter 1995 and was stood down for 3 days over this break. His employment continued until 2.20 pm on 9 June 1995 when he left the premises of hi., own accord ai\d did not return. Mr Campbell resumed employment on 26 June 1995 and continued until 8 September 1995 On Monday 11 September 1995 he telephom:d the Queensl:ind Manager and <;tated that he would not be returnin1,,1 to work Four weeks later on 12 October 1995 Mr Campbell returned to work and left again on 23 October 1995. On 7 December 1995 he returned to work. He wa" stood-down over the Christmas break from 23 December 1995 to J January 1996. On IO Apri I 1996 Mr Campbell's employment status was changed and his job description clw,sified a'> Clerical Officer. Mr Campbell's employment was te1111inated on Monday 20 May 1996. Mr W. Phillipson has been employed as Queensland Manager of the Company for approximately five years. In evidence he provided the Commi\~ion with an outline of Mr Campbell's employment hi\tory togethe1 with nccasions when Mr Campbell was concerned about his rate of pay He indicated thai the reason Mr Campbell was dismissed was because of his failure to attend work cleanly shaven. On Friday 17 May 1996 M, Phillipson noticed that Mr Campbell had arnvcd at work "unshaven in an untidy appearance". So be it Mr Phillipson permitted Mr Campbell to go through the orders for the day and sort them so that the most urgent ones were delivered on time and that any customers were advised if they weren't going to receive a delivery that day. After receiving advJCe from his Melbourne Office, Mr Phillipson contacted Mr Campbel! on the phone and a-;ked him to go home, tidy himself up, have a shave and return when he's more respectable. There is a di,agreemcnt between Mr Phillipson and Mr Campbell on whether he reque<.ted Mr Campbell to return to work however Mr Campbell did not return until the following Monday. The que~tion of whether Mr Campbell returned to work or otherwise was not the reason for the dismissal. Accordingly the Commission ha, placed little weight on this factor. After considerable questioning Mr Phillipson outlined that the Company policy of dress is not written but his understanding of an implied policy is as follows:- --1 was fairly flexible. So Jong as an employe:e looked presentable and wa-. clean and tidy in this po'.-.ition I would have found it acceptable.·' furthermore 111 relation to the quesuon of clean shaven it seems from the evidence l)f Mr Phillipson that he made informal comments to Mr Campbell however the Commission would not expect that it could be implied from these observations that dismissal could result. The evidence of M~ Downer was very clear. She was employed by the Company for approximately four years as; an Accounts Clerk. ln 1espo11-e to questions about the ,tandard of dress of Mr Campbell, Ms Downer stated :-he may have :-een him unshaven more than twice but not a dozen times. She did not regard h1~ swndard of dress to be excessive over a period of 2 1/2 years. In relation 10 hi, capabilities she had commented on how well he had acclimali<,cd to office work so quickly especially when difficultie!-. were being cxpcrit~nced with the new computer ,ystem. Ms Downer was unaware of ai1y written Company policy in regard to dress and appearance and she had never been told of any policy on dress or appearance In view of the evidence of M, Downer, !he Commission i, of the opinion that the Company had not communicated standard, of dres-, policy to its staff and yet it b,t'ied its dismissal of Mr Campbell on .\uch a policy. It seems to the Commission that such a policy was understood by Mr Phillipson and perhaps Mr Brown may have been infom1cd of such a poli<.:y. In evidence Mr Brown did not regard the dress of Mr Campbell tts excessive. For an employer to rely on a policy the Commission would expect that all the ~taff would he well aware of the Company's policies or customs and practice~. It 1s not appropriate to rely on a document or views which have not been communicated to employees Fmthennorc, Exhibit I indicates that the applicant refused to abide by Company policy for dress and appearance after ~cveral warnings. A:,., already indicated Mr Phillipson was unable to clearly outline to the Commission the policy referred to in Exhibit I and also Ms Downer had not been infonncd of ~uch a policy. 22149_1.DOC 3 January, I 997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE From the employmi:nt history of Mr Crn1pbcll it is clear that on a number of prevmus occasions the employer/employee relationship had been successfully restored. There 1s no reason why 011 this occasion the employer/employee relationship could fll)t be re.,tored provided a satisfactory programme w;t, put in place to monitor such restoration. The Commission h:1, no problem with employees complying with acceptable and It':t,onablc pohcie, of dress standard and ;t, such clean ,haven may he an appropria1e policy. For such to be a policy all employee~ ~hould be made aware and have an understanding of their conditions of employment On consideration of all of the above factors the Commission made the decision ;:t<, outlined on the transLTipt of 22 November 1996. Dated this s;ixteenth day of December 1996. By the Comnussion, [LS.) E. EWALD, Industrial Regi,trar A/1/Wltr//1/{'{'\: Mr R. S1cinit1. of R. • 1 StcinitJ: and Associates on behalf of the applicant Mr M. Belfield of the Metal T1adL'.S Industry Association of Australia ()ucensland Branch, Union of Employers on behalf of the respondent ' Operative Date N/ A Decision Reinstatement RL'leascd 16 December 1996 ########################################################## 11 -- 1 of 1 --