Brown v Jadeway Pty Ltd [1994] QIRC 606 (1994) 147 QGIG 1101

1100 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [11 November, 1994 I I November, l 994J QUE ENS LAND GOVERNMENT fNDUSTRIAL GAZETTE I IOI #llll##ll###ll###llll##ll###ll####ll#lllll/####ll#######llll##/1####### QUEENSL/\ND INDUSTRIAL RELATIONS CO MMISSION lndusmal Relations Act 1990 s. 295 - app licat ion for reinstatement William Brown AND .lad eway Pty Ltd (l-.-o. !J i 6! of 199./J COMMIS SIONER SWAN I November 1994 App l ica tio 11 for reinstatem ent - Dismissal by tel ephone call whilst on leave - Warn ings and counsell ing - Non-confonnance report - High rate or w,,rra111 y cla im s - Employer warned of mad1ine faults - Clear notice given - Procedural unfairness - No opportunity to de fend ag ainst allegations made - Re in sta teme nt impracticable - Compc::nsa t ion awarded. DECISION The applicant in this matter. Mr . William Brown, ~eeks reins1 atcm e111 to his fo nn crly held p~sition of Mo tor Mechan ic with .ladeway Pty Ltd. trading as Whimps Caboo lturc. The app li ca nt was represented bv an advocate from the Automot ive. Metals and Engineering ,;1dus1rial Un ion of Em ploy ees, Qu eensland and the respondent com pany b) an advoca te fr om the Motor Trades Assoc ia tion of Qu een sland. Union of Employers. The applicant had been em ployed b) the respon dent 10 perfom1 whee l al ignmen ts and the duties of a front end mechan ic from 18 October 1993 to the da te ofte nninat ion, I J uly 1994. This particul ar typ e of work had been perfom1ed by the appl icant for a cons iderable ;u rnb~r of years an d produced during the hearing were references rom lormer employe rs conflnning tha t the applicant possessed the appropriate knowledge and skill to perform such work to a high standard. T he appl icant was d ismissed on I J uly 1994 after receivi ng a tele phone call from his immediate employer, Mr. Pet er McLaughlin (store Manager). The applicant was on holiday leave at the time. The reason given for the d ismissal by Mr . McLaughlin was that s ome ve hicles h.ad been returned to t.he workshop during the period when the applican t was on leave and the ve hicles showed worn tyres whic h were allributable 10 faulty wheel alignments which all eged ly had been t he work o f the applicant. The responden t claimed that it had given the applicant warnings and counselling prior to a final warning (in the fom1 of a non- confom1ance report) issued some time before his dismissal. It was stated that the warnings and counse ll ing occurred verbally between the app licant and Mr. McLaughlin. Mr. McLaughlin claims that when he spoke 10 the applicant he impressed upon him that both his and the app li ca nt\ jobs wae "o n the li ne" if the high number of warran1y claims continued at this workshop. (There was ev idence which showed that this particular store , when compared with other ~lores with in this chain of companies, had an inordinately high number of warranti es being claimed) . The applicant states that he had received no real warnin gs or counselling prior 10 the non-confom1ance report issuing and, in the case of the latter report, he was tol d, by his immediate s uperior. not to won-y abou t it as ii merely represented paper-work which had to he d one 10 cover the number of warranties issuing from this particular workshop. The non-conformance report. issued on 14 Apr il 1994 s tated - "DESCRIPTI ON OF NON-CONFORMANCE Manager Peter McLau gh lin has spoken to Bill Brown previously re work habits. Mechanical jobs high wheel alignment being retu rned with rapid wear. deterioration of work . Productivity re standards aller lunch each day. cg. Excell Conc rete Mrs Page $3 18 .00i $581.00) warranti es I have spoke n to Bi ll Brown today, given final warn ing . If work standards do not improve immediately his servi ces will be term inated. Sign ed M. Duggan Dated 14/ 04/ 1994". The applicant cla ims tha t prior to receiving this report, he had c omp lained on a number of occasions about what he perce ived Lo be the malfonctioning of the machine which was used for per fonn ing the whee l alignments on veh icles. I-le s tated that he had brough t this to the altention of Mr. Mel .aughl in, and on ly upon the fai lure of Mr. McLaughlin 10 act. had he made contact wi th a more senior officer of the Company , Mr. Bob Johnson (Store Manager - Nambour and Assistant 10 the General Manage r during the applicant's period o f em ployme nt ). It was cla imed by the applicant tha t Mr . Johnson's rc~ponse to h is concerns was "We've spent enough money on this mach in e. I don't think it's a problem with the machine at all". This assertion was refuted by the employer . As it trans pired, a mechanic specialising in this type of mach ine was called in by the Company (on the sa me day that th e applican1 received his non-confonnance report) and evidence shows that work was performed on the m achine 10 the " bore site and calibrate senses" . The app licant claims that the mechanic told him that the machine was out of lin e by 7 mi lli metres. According to the evidence of an expert witness ca ll ed by the applicant (Mr. Polson - Assi stant Manager of the Competency Assessment Cent re) a 7 millimetre 1r1accmacy would be suflic,ent to '· sc rub tyres severel y" . TI1e effect -- 1 of 2 -- 11 02 QUEEN SL AND GOVERNMENT INDUSTRIAL GAZETTE [ 11 November, 199 4 of the inaccuracy wou ld only mani fest itself some time after the alignment was perfonned and the impact would be long term tyre wear. Whilst the employer does not question that the machine was found to be faulty, they query the degree 10 which it was faulty. The mechanic performing the in spection wrote his report many months after the inspection had occurred and did not stale the degree lo which the machine was out of line. I am inclined to accept the applicant's version of events a1 the time of inspection (given that he had a vested interest in knowing by how far the machine was out as he had been warned about his work on that very day). This latter point is the one stressed by the applicant. He claimed that, because the malfunction had been identified . he had warned the employer to expect vehicles to be returned some time in the fu ture. The ren1rned vehicles (the subject of his ultimate dismissal), it was claimed would be those affected by the previously malfunctioning machine. On the evidence before me. the comments of the applicant appear both logical and factual. The non-conforn1ance report cites, as well. other reasons for the employer issuing a final warning to the employee. These reasons relate to work perfom1ed on two vehicles (Excell Concrete, hereafter "Vehicl e A" and the veh ic le owned by Mrs Page. hereafter "Vehicle B") . There was considerable debate during the hearing as to whether the applicant or another employee, a Mr. Russell had worked primarily on Vehicle A. The applicant claimed that Mr Ru ssell had perfonned the bulk of the work on the vehicle and a Statutory Declaration was tendered by the app lican t. signed by Mr. Russel l. a11es1ing to this fact. As it transpired, somewhat later. Mr. Russell sought to rescind the Statutory Declaration and 10 make a statement confonning to the employer's version of even ts (ie that the applicant had perfonned most of the work on th is vehicle). Mr. Russell was not called to give evidence and one can on ly speculate as to the veracity of his comments. The employer contended that Mr Russell was a " fick le" character. If this be so (and l have no way of knowing) then obviously I would question the latter statement made by Mr Russell as well. Concerning Vehicle B. the applicant concedes that he found difficulty in understanding why this vehicle cont inued lo cause problems. After detennining that he could 1101 fix t11e veh icle, it was transferred to another workshop. As it so happened. it continued to have difficulties (a lbeit of a different ty pe) allcr bei ng at the di ffcrent workshop. The employer gave ev idence that it regularly conducted tests and services on its ma chinery and that, in the main , the particular type of machinery at this workshop had 1101 caused problems elsewhere. The emp loyer also stated that, in the eve nt that a machine was faulty. it would not be in their interest to let it remain so . Conclusion I have given detailed consideration to a ll of the evidence put before me du ring this hearing and whi le every facet has not been stated in this decision. all has been duly considered. I accept that the employer had reason 10 be concerned about the high rate o f warranty work being perfonned at thi s pa11icular workplace. I also a cce pt that while the applicant was not responsible fo r a ll of the work in q ues tion, the bu lk of the work wou ld have been perfom1cd by him. I am sceptical about the nature of the ··warnings an d counselling" given to the applican t by his immediate employer prior to the non-confonnance report of April 1994. I s uspect that these even ts we re mainly in the fonn of conversa ti ona l d isc ussions between employees of the Company. Were they fomrnl warn ings, then the employer should have gone to greater lengths 10 ensure that the applican t understood the full tenor of the discussions. A diary note or some written confirmation of the warning by the employer would have gone a long way to ensuring that there was no doubt in anyone's mind that the warnings had occurred and were made with some force. The fact that the non-conforn1ance report occurred on the same day as the inspection of the alignment machine is interesting. I accept the applicant's evidence that he was somewhat re lieved that the inspection showed that his concerns were vindicated. As to the other two incidents with Vehicles A and B, ii is understandable that the employer was concerned about these matters. That total blame can be a11ribu1ed lo the applicant was not abundantly clear from the evidence before me. In the absence of witnesses called to attest to statements which they may have made (ie Mr Russell) it is most difficult to de1ennine the truth or otherwise of the si tua ti on , howe ver one must question the veracity of Mr Russell's later comments in that he was not prepared to voluntarily give evidence to that effect. The applicant accepts that he worked on vehicle B, but was unable to adequately fix the vehicle to a satisfactory standard. He claims that this admission was made by him al the time of attempting to fix lhe vehicle. I would find it most odd, if, after taking the time to fonually warn the applicant by way of the non-conformance report, the employer then told the applicant not to worry about the warning. I accept that t wo different Company officials were involved in this matter - one being Mr. Duggan, the General Manager of the Company and the other being the local Manager, Mr. McLaughlin. It was claimed by the applicant that it was Mr. McLaughlin who made the comments about not wo rrying about the report. Even in 1he even! that this allegation is true , on e would think that any employee would be concerned if the General Manager of the Company took the time 10 visit the employee to express h is cone.em about th eir perfonnance. Indeed. the concerns of the Company went not only to the warranty question but a lso 10 other matters concerning Vehicles A and B. My v iew is that the employee was put on notice that his perfonnance was under se rious sc rutiny by the employer. That this warning should be deemed 10 be a final warning. however. is questionable. I have accepted the ev idence of the applicant that he had concerns about the rel iability of the align ment machine and that he had exp ressed such concerns to his em ployer. Upon recognition of that fact or by the specialist mechanic. the Company had an obligation to give due consideration to the fact that there may be continuing prob lems with vehicles which had been subjected to faulty service. Wheel alignment is a major part of the employer's business and the expert evidence was that what was being c laimed by the applicant was a perfectly acceptable and logical concern. This expert witness also tested the appl icant in tern1s of his knowled ge and s kill with regard to wheel alignments and found that the app li cant possessed the appropriate skills to perfonn the work for which he was employed. The manner in which the employee was dism issed was of concern 10 the local Manager. Wh ile he expressed concern, this Manager does not dispute the fact that he believed that this employee shou ld have been dismissed. During the period between the non · c-onfonnance report and the dismissal, the appl icant states that the employer ha<l not raised any issues about his perfonnance with him. II was during his holidays that he was telephoned by Mr. Mc Laughl in and d ismissed because some vehicles had been returned to the workshop. The applicant was not told which vehicles had been returned to the workshop - however, the employer contends that they were vehicles upon which the applicant had worked. That was the ex tent of the telephone conversation between the parties. Nowhere during 11 November, 1994) QUEENSLAND G OV ERNMENT INDUS TRIAL GAZETTE 1103 this case was it put to the Commission by the employer that it recognised any link between a faulty machine and the fact tJ1at some vehicles might be returned to the workshop as a resu lt of being tested on that machine. In any event, the employer had an obligation 10 explore the matter fully, and to afford the employee an opportunity to debate the issue and respond to the allegations being made. Neither of these scenarios appeared IO have occurred. Thal, in itself, rep resents a clear contravention of Section 292 of the Jndus1rial Rela1ions Act 1990 (the Act). Section 292 states as follows: - ''Opportunity to defend against allegations before dis mi ssa l 29 2.(1) An employee may dismiss an employee for reasons related to the employee' s conduct, capacity or perforn1ance only if the employer first g ives tJ ,e employee a reasonable opportunity to defend against the allegations made. (2) Subsection (l) does not apply if the employer could not reasonably be expected to give the employee the opportuni ty. ". The employer states that the Act contemplates situations where ii is not feasible or warrant.ed to pennit this requirement to occur. They state that they have a duty to ensure that customers' safety is not compromised in any way. The latter, of course , is a correct view to hold. However, they also had a Statutory obligation to pennit the employee 10 state his case and this clearly did not happen. If the evidence of the expert witness (Mr Polson) is to be accepted (and I have no reason to believe thal it should not he); if the statement by the mechan ic who fixed the machine and the evidence of the applican t is 10 be accepted in that the machine was fa ultv 10 some degree (and this appears to be a matter of fact); then one w~uld have thought that it was in the best interes t of the emp loyer to !lilly investigate the matter. On the evidence before me , it seems reasonable to ass um e that were vehicles tested on a machine which was fau lty, then the probabi li ty of some later difficulty wi th the vehicle aris ing seemed most likely. In iight of the above, I hold the view that the employer has no t discharged its responsibi lities under the lnduslrial Relations Act 1990 . From a procedural perspective, it has not afforded the employee an adequate opportunity to defend himself against the allegations which were made against him. In 1enns of the substantive merit of the case, I accept that the employee was on clear notice from the employer that his perfonnance was under question (al though I query the "final warning" status of the non-confonnance report) and, in the event that the employer had fully investigated the final incidents and found the employee to be wanting, then th at may have been an appropriate time, dependant upon the circumstances. to have issued a fonual or final warning. Wh il e the applicant seeks reinstatemen t, I do 1101 believe that this ap proach wou ld be in the best interests of both panics. There appeared. during the hearing, to be considerable antipathy between th e applicant and the emp loyer generally. I suspect that it would prove to be fut ile 10 expect the parties 10 re-establish their employment relationship. The Act contemplates the payment of compensation in the event that reinstatement is an impracticable solution. _In award ing compensation, fro m my perspective. one needs to ~ev iew the_who le situation concerning the employment relationship - ,e the merit considerations together with any procedural deficiencies w~ich may have occurred. I have gained the strong impression in th,s case. that the applicant co nsti tuted (unfa irly, in my view) a source of annoyance to the empl oyer with his expressed concerns abo h • UI s ortcommgs at the workplace. I believe that the employer should have thoroughly investigated the applicam's claim that the machine upon which he was working was faulty (after all, the applicant was an employee of cons iderable experience in this industry and possessed, what appears to be, an excellent work record with previous employers). Upon discovery of the faul t in the machine, the employer should have completed its investigation by considering any ramifications which might result from such malfunction. Merely to blame the employee for the problems caused by the machine after the event is to turn a blind eye to the reality of the s ituation. Had the correct procedural requirements been followed as they should, then the employer may have arrived at a different outcome. The correct procedural requirements would have involved adequate warning and appropriate counselling for the applicant in the event that there was a question over the general qual ity of his work, an appropriate investigation of the problems raised by the applicant and possible ramifications of such find ings during the co urse o f his emp loyment, followed through to affording the app licant the rights he is entitled to by virtue of s. 292 of the Act. In a ll , I view the dismissal of !he emp loyee as being both harsh/unreasonable and procedurally deficient. I propose 10 award an amount of compensation of$2,900-00. I am aware of the fact that the employee, on tem1 ination received an amount of one week's pay t oge ther with any statutory entitlements due 10 him. Mv understanding, as well, is that the emp loyee was put to some degre~ of difficulty in obtaining monies to which he was rightly entitled by the employer. Such amount is 10 be pa id 10 the employee with in a period of one week from the date of release of this decision. I order accordingly, D.A. SW AN, Commissioner. Appearances :- Ms K Inglis, with her Mr J Ryan , for the Automotive, Metals and Engineering Industrial Union of E mp loyees, Queensland on behalf of the applican t. Mr T Kowalski for the Motor Trades Association of Queensland, Union of Employers, with him Mr G A Gn:gory. on behalf of the respondent. Operative Date: NIA Decision - compensation awarded Released: 2 November 1994 ############## ############ ### ###################### # ### -- 2 of 2 --