DECISION NO: 324/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - valid reason - inadequate opportunity to respond to allegations - reinstatement - compensation
Industrial Relations Act 1988 ss.170DG, 170DE, 170EA, 170EE
CASES:
Jones v Dunkel (1959) 101 CLR 298
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) IRCR 199 at 209; (1994) 126 ALR 233 at 243; (1994) 57 IR 50 at 59.
HEIN MUILEMAN -v- THACKER PRINT GROUP PTY LTD
No. VI-1199 of 1996
Before: Ryan JR
Place: Melbourne
Date: 19 July 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-1199 of 1996
B E T W E E N :
HEIN WILLEM MUILEMAN
Applicant
AND
THACKER PRINT GROUP PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 19 July 1996
THE COURT ORDERS:
1. The Respondent pay the Applicant compensation in the sum of $8,280.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-1199 of 1996
B E T W E E N :
MUILEMAN
Applicant
AND
THACKER PRINT GROUP PTY LTD
Respondent
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 19 July 1996
REASONS FOR JUDGMENT
Hein Willem Muileman claims unlawful termination of employment. In an application filed in the Australian Industrial Relations Commission on 8 February 1996 he states that:
(i) he started work full-time with the Respondent as a Graphic Reproducer on 1 August 1995
(ii) his employment was terminated on 2 February 1996
(iii) prior to full-time employment he had worked part-time for approximately two years for the Respondent
(iv) he was not given written notice of termination
(v) he seeks reinstatement and/or compensation
(vi) the only reason given for the termination of employment was included by the Applicant in paragraph 21 of the application for relief (Form R28) as follows:
“making too many mistakes (verbal - once only) on day of termination”.
On 14 February 1996 James Hargrave, Employee Relations Officer, Printing Industries Association of Australia, filed a Notice of Employer’s Appearance (Form R29).
On 4 March 1996 the Court received a certificate from the Australian Industrial Relations Commission certifying that the Commission:
(i) had been unable to settle the matter by conciliation within a reasonable period
(ii) the parties in the matter, having been invited to elect to have the matter dealt with by consent arbitration, had not so elected
At a Directions Hearing on 2 April:
(i) the matter was listed for hearing in Geelong
(ii) mutual discovery of all documents upon which the parties propose to rely was ordered 14 days prior to trial
(iii) the Respondent was directed to discover to the Applicant the quality control records of the Respondent which relate to the area of the Applicant’s employment
At the trial Mr Skinner appeared for the Applicant and Mr Hargrave for the Respondent.
The Respondent conceded that employment was terminated at the initiative of the employer and by Mr Hibbert, the manager of the Pre-Press Department. Mr Hibbert is responsible for pre-specification, production, quality control, tracking of printing jobs and for a continual re-evaluation process which the Court assumes is linked to a quality assurance program in place at the Respondent’s printing works, 2 Bayldon Court, Breakwater. Mr Hibbert, in examination in chief, gave rather limited and sparse evidence of the actual termination and of the events leading up to it. This was surprising as only he and the Applicant were present when the employment was terminated. His evidence included the following:
· he was aware that the Applicant had been employed as an operator/ graphic reproducer in the Pre-Press Department full-time for approximately six months
· in September 1995 he had addressed all members of the Pre-Press Department and advised them that:
(a) it was necessary to address a number of mistakes occurring in the department
(b) management was committed to making the department work efficiently
(c) if the mistakes were not reduced, and if the department did not achieve a more efficient method of operation, the Respondent would consider the option of outsourcing the work of the department
· Mr Hibbert concedes that apart from addressing the Applicant, and all other departmental staff, at the general meeting in September, he did not, at any time, prior to termination, speak directly or personally to the Applicant
· the trigger for the termination was a job involving the production of a software magazine. Mr Hibbert described this incident as “the straw that broke the camel’s back” and as a job which resulted in:
(i) the incorrect production of 18 printing plates
(ii) the scrapping and remaking of the plates
(iii) a replacement cost in the vicinity of $900
(iv) lost “press time” in the vicinity of $600 to $800
(v) a total loss in the vicinity of $1500 to $1700
· Mr Hibbert states that, prior to the termination interview, he spoke to the pre-press foreman, Mr Wallis and to the owners (i.e. the owners of the Respondent’s business)
· in the final interview, and by way of examination in chief, Mr Hibbert indicated that he discussed the software magazine job with the Applicant and he also said “we discussed that I had indicated a number of errors over a particular time”
The Court found this a curious statement from a manager who had earlier given evidence that he had not spoken directly or personally to the Applicant other than in a general sense as a member of the Pre-Press Department at the special or general staff meeting in September 1995.
Perhaps Mr Hibbert simply meant that at the termination interview he indicated a number of errors which he was suggesting were made by the Applicant during the processing of the software magazine job. If Mr Hibbert was giving evidence to the effect that, at the termination interview, he discussed with the Applicant a number of errors made by the Applicant over the Applicant’s period of full-time employment, he would have had to base that discussion on the advice of someone else. The Court notes that any broad interpretation of Mr Hibbert’s evidence, extending his reference to errors beyond the software magazine job, is inconsistent with the Applicant’s evidence.
In any event, Mr Hibbert indicated that the Applicant made a remark like “if that is what you think....”. He also conceded that the Applicant did not admit to making errors.
The Court notes again that Mr Hibbert’s evidence in respect of the termination was surprisingly limited. In examination in chief, he gave no further evidence other than that in the course of the software magazine job he understood the plates to be gripped incorrectly, assembled incorrectly and with some of the plates “out of square” and with all the plates “scrapped and remade”.
In cross-examination, more detail emerged but the evidence remains limited from the only member of the Respondent’s workforce involved in the actual termination. This is not necessarily a criticism of Mr Hibbert’s evidence. It is possible that there is no more detail in respect of his involvement in the termination which could emerge because he has given an accurate description of exactly what did occur. It is also possible that there was more to the termination interview than is now recollected by Mr Hibbert. However, his evidence of a rather brief and non-detailed termination interview is echoed by the Applicant in his evidence. In respect of the termination interview, while Mr Hibbert and the Applicant give slightly different evidence, the differences are minor and they both give consistent evidence of what they say occurred at the final interview when Mr Hibbert indisputably terminated the Applicant’s employment and did so on behalf of the Respondent.
The Court must deal with the evidence as it finds it. The Court has no grounds for assuming that either Mr Hibbert or the Applicant are concealing or withholding any evidence in respect of the termination interview. In fact the contrary applies. The consistent evidence of both the Applicant and Mr Hibbert suggests that there was no more relevant detail to the termination interview than emerged from the respective accounts in the evidence.
The Respondent did not confirm the termination by any notice in writing or produce a written record of the termination. The Applicant tendered the only written record relating directly to the termination and that was Exhibit A1.
Exhibit A1 appears to be a weekly pay to 1 February 1996 of $552 gross, $429.37 net and what is stated to be weekly pay to 2 February 1996, $1932 gross, $1502.80 net. There is an endorsement on this second payslip suggesting that the payment is two days wages, one week in lieu of notice and 10.5 days holiday pay.
Exhibits R1 and R2 are documents which are relevant to the termination but they are not documents which in any way record the termination itself. Exhibit R1 is a bundle of documents known as Non-Conforming Sheets. Exhibit R2 is an Imposition which sets out the way in which the software magazine job is to be set up for the production of printing plates.
In cross-examination, Mr Hibbert clarified and added to his evidence as follows:
· he did not take part in any discussions which Mr Wallis may have had with the Applicant in respect of performance
· his general address to the pre-press staff in July 1995 related to “the entire performance” of the Pre-Press Department and was “made very clear”. It was a discussion which Mr Hibbert described as “across the board”. The Court understood that to mean that Mr Hibbert was deposing that he described to all the staff what he perceived as defects in performance and quality of production in the Pre-Press Department
· Mr Hibbert conceded that there are defects in plates and plate making which can fall outside the responsibility of plate makers. By way of example, he conceded that some marks on plates and dust or hair on plates can be hard to detect. (On the other hand, Mr Wallis and the Applicant, to some extent, gave evidence that operators should in most cases be able to detect such marks, dust, hairs and other foreign bodies).
· non-conforming sheets (Exhibit R1) were a part of the quality assurance system which allowed the Respondent to monitor errors, wastage, rejected plates and remade plates. Mr Hibbert, in cross-examination, asserted that “a question is asked if an employee continually files non-conformance forms” and “action is taken on the forms”
The Court notes that Mr Hibbert did not give evidence of action taken on the forms and did not give examples of “questions” which he claims are “asked” in respect of filed non-conformance sheets or forms.
In cross-examination, Mr Hibbert:
· conceded that the Respondent does not have a written policy on discipline procedures and that no written warning was issued to the Applicant
· claimed that he had received complaints from the foreman of the printing area in respect of the performance of the Applicant
· implied that he had received complaints from Mr Wallis, the Pre-Press Department foreman, in respect of the performance of the Applicant
· admitted that he had decided before the meeting on 2 February 1996 to terminate the Applicant’s employment and “knew before the meeting that (he) was going to terminate” the Applicant
· conceded that it was possible that the software magazine job may have required the remake of 16 and not 18 new plates
In that respect, the Court notes that Mr Wallis gave evidence that after the termination of the Applicant’s employment he completed a non-conformance sheet (the first sheet of Exhibit R1) and that sheet reads:
“LAST REPORT - FILLED OUT BY PRE PRESS MANAGER
Week Ending: 9th/2nd 1996
JOB BAG No. CLIENT REASON
960380 Software Magazine Group 16 RONP’s
1. Imposition/Stripping to wrong grip edges. Not as
Imposition supplied.
Combined film supplied had been output to suit
sheet-fed work.
2. Stripped film hook-up out
of square 1mm approx.
resulting in plates going down to press wrong.”
In cross-examination, Mr Hibbert gave the following version of the termination meeting:
“I asked him (the Applicant) to sit down. I said I could not tolerate the number of mistakes and we are going to terminate your services. I told him I would have to let him go. I indicated there were too many mistakes - just too many mistakes. I referred to the job the previous night (i.e. the software magazine job). I discussed 18 plates gripped incorrectly. He (the Applicant) said ‘is that my fault?’ I gave him his pay sheet (Exhibit A1) and said ‘we are going to let you go. I am sorry.’”
The Court has already noted that the Applicant’s version of the termination discussion is similar. In examination in chief, the Applicant gave evidence to the following effect:
“on 2 February 1996 I began work at 11:00 am. At 12:30 pm or 1:00 pm or later I spoke to Mr Hibbert. He said ‘have you got a minute? Take a seat. You are making too many mistakes. We will have to let you go.’ I think I said something like ‘why? What is it?’ He said, ‘you are just making too many mistakes’. I said something like, ‘how come?’ He said, ‘I have heard you are making too many mistakes’. I said, ‘what can I do?’ He said, ‘here is your pay packet. There is a week extra in lieu and holiday pay. I have to let you go. Sorry.’ I said, ‘can’t I explain?’ He said, ‘no, that is it. Sorry.’ I said, ‘Okay’ and I walked out.”
The Applicant then gave evidence that he consulted a solicitor within a week of the termination and he identified the instructing solicitor in the Court as the solicitor he consulted.
In cross-examination the Applicant:
· stated that Mr Wallis spoke to him about the software magazine job on 31 January
· repeated that Mr Wallis spoke to him about the software magazine job on 1 February 1996 and said words to the effect of “the job is stuffed up”
· claimed that on 1 February “we were still working on the job”, and when asked by the Court what he meant by “we” responded that Mr Brissilane was working on the job with him on 1 February
Earlier in examination in chief the Applicant had stated that on 31 January:
(i) Mr Wallis had told him that he would be working on the software magazine job that night
(ii) Mr Wallis directed him to position the plates to where the film was punched
(iii) he queried Mr Wallis and said, “are you sure that is right?” and Mr Wallis replied, “that is it. I have instructed the client. The film has been punched as instructed to the client and the film must grip to the edge”
(iv) he (the Applicant) set the job up but there was no bag number or job number and no bag either and he found problems with the way the film was punched and that it did not correspond to the way the plate was punched
(v) he did four full colour four colour plates that night and they were complete and correct
(vi) he spoke to another employee, Terry Brissilane, who took over and continued the work (or at least the Applicant’s assumes he continued the work)
(vii) he returned to work on 1 February and found the film was not correct in accordance with the imposition (Exhibit R2) which, according to the Applicant, “had appeared on a work table that morning”
The Applicant immediately amended the claim in (vii) above as follows:
“I first saw the Imposition (Exhibit R2) on 1 February after 1:00 pm....it was on a table behind me”
The Applicant then stated that he continued on with the rest of the job in accordance with the directions in the Imposition (Exhibit R2) with the help of another person and finished up about 11:00 pm. He claimed that the other person was Terry Brissilane.
The Applicant, at this stage, conceded that on 31 January, he had found that the film as punched was out of square to the plate and claimed that he had corrected the defect on the night of 31 January.
The Court has concluded that the Applicant gave, in his evidence in chief, an inherently unlikely version of what occurred in respect of the software magazine job. Some aspects of his version of events, as given in examination in chief and in cross-examination, were inconsistent and bore the marks of recent invention.
The Applicant was asked by the Court whether he had completed a work sheet at the conclusion of his work on 31 January. In re-examination, he advised his Counsel that he “would have” made reference to the software magazine job in a time sheet which he completed when he finished work on 31 January and that the time sheet was “either left on a work bench or placed in the foreman’s office”.
The Court finds it curious that the Applicant cannot remember where he left or placed a time sheet which would have been of considerable significance if his version of his involvement, and the alleged involvement of Mr Brissilane, is a true and correct version of events.
The Applicant, through his legal advisers, did not call for or seek discovery of a time sheet which, if completed as he says it was, would have been likely to provide some supporting evidence of his claim that by 9:30 pm on 31 January he had correctly and successfully completed four full colour plates. Furthermore, and of more significance, is the failure of the Applicant to call Mr Brissilane as a witness, or to explain why Mr Brissilane was not called to give evidence. In the circumstances the Court is entitled to infer and does infer that Mr Brissilane would not have given evidence which would have been of assistance to the Applicant (see Jones v Dunkel (1959) 101 CLR 298).
The claim by the Applicant that the job came without a bag or an Imposition is difficult to accept. The sudden appearance of an Imposition on 1 February, and the implication that it was provided on 1 February and was not with the job on 31 January, is also difficult to accept. The inherent improbability of this state of affairs is heightened when considered in the light of the Applicant’s claim that Mr Brissilane took over the job about 9:00 or 9:30 pm on the 31 January and that the Applicant found the defective plates the next morning and the Imposition on a table at about 1:00 pm on that day.
The evidence of Mr Wallis included the following:
(i) he was involved in quality assurance and was manager of quality assurance as well as Pre-Press foreman in January and February 1996
(ii) he was Pre-Press foreman during the Applicant’s full-time employment
Mr Wallis also claimed that he monitored the non-conforming reports and that the reports came into being as part and parcel of quality assurance and because the Respondent needed some indication of spoilage.
He further stated that he saw plates remade on a reasonably frequent basis and that he had tried to get the Applicant to be “more tedious with his material”.
The Court assumes that Mr Wallis is claiming that he had tried to get the Applicant to be more careful and thorough but did not give any direct identifiable evidence of counselling or warning the Applicant other than claim that, in respect of the Empire Ridge job, he told the Applicant in January 1996 that “the print manager was concerned at the time lost”.
In fact, in cross-examination, Mr Wallis could not remember whether his discussion over the Empire Ridge job was initiated by the Applicant or by himself. He conceded that it was possible that the Applicant had approached him. He said:
“I was trying to get him to be more tedious. I never told him he might lose his job. I felt it was sufficient to encourage him.”
This is not the evidence of a supervisor counselling or warning a worker.
The Respondent never documented the grounds for the termination of the Applicant’s employment and the grounds were not clearly stated even in the hearing. The only grounds stated by Mr Hibbert on 2 February was that the Applicant was “making too many mistakes - just too many mistakes”.
Mr Hargrave claimed in his final address that the Applicant’s inadequate performance had been made quite clear (to the Applicant) on a number of occasions. He also identified what he described as 29 errors recorded in the non-conforming sheets tendered as Exhibit R1 and he claimed that “the majority of these errors could be attributed” to the Applicant.
Firstly, everyone of those reports, except the report made by Mr Wallis after the Applicant was terminated, was made by the Applicant himself. Secondly, no evidence was tendered which demonstrated that particular defects so reported were the result of the incompetence or inadequate performance of the Applicant. Thirdly, no evidence was produced to demonstrate that any of the recorded defects were brought to the Applicant’s attention or that he was warned or counselled in respect of such defects. The only exceptions are the Empire Ridge job and the software magazine job.
It is not clear that Mr Wallis initiated the discussion with the Applicant on the Empire Ridge job. Mr Wallis conceded that it is possible that the Applicant initiated the discussion. While he gave evidence that, as a result of and as part of the discussion, he was trying to get the Applicant to be thorough and careful and, “more tedious”, he also admitted that he never suggested that the Applicant’s continued employment was in jeopardy. Indeed, he stated that he felt it was sufficient to encourage the Applicant.
Inadequate performance of course can constitute a valid ground for termination but as Northrop J has stated in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 the word “valid” should be given the meaning of “sound, defensible or well founded”. In this case there is no satisfactory evidence of inadequate performance put to the Applicant other than a claim of too many mistakes. Furthermore, Mr Hibbert admits that before he gave the Applicant that reason or ground for termination he had already made up his mind that he was going to end his employment. This was a summary termination, albeit with one week payment in lieu of notice, and it was not stated to be on the grounds of serious misconduct such as might justify summary termination. In the circumstances, the allegation of “too many mistakes”, an allegation made after the decision to terminate had already been made, did not constitute a sound, defensible and well founded reason. It was not a valid reason. The Respondent is in breach of S170DE(1).
There is no need to go further but the Court also notes that the Applicant was never given an opportunity to respond to the allegations of incompetence before or during the termination interview. The Respondent has also breached S170DC. I accept and rely on the oft quoted formulation of S170DC in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) IRCR 199 at 209; (1994) 126 ALR 233 at 243; (1994) 57 IR 50 at 59.
It is also clear from the circumstances that the termination was harsh, unjust and unreasonable and in breach of S170DE(2). I adopt the formulation of “harsh, unjust and unreasonable” by Shepherd and Heerey JJ in Bostik Australia Pty Ltd v Georgevski (No 1) (1992) 32 FCR 20 at 28.
REMEDY
Having found the termination unlawful and in breach of S170DE(1) and S170DE(2) and S170DC I turn to the primary remedy which is reinstatement.
Were it not for adverse findings in respect of the credit of the Applicant, this might well have been a case in which I would have found the reinstatement practicable using the test expounded by the Chief Justice in Nicolson. However, for the reasons already given I have found that it is inherently unlikely that the Applicant handed over the software magazine job to Mr Terry Brissilane on the evening of 31 January and that the Applicant discovered on 1 February 1996 a number of defective plates made by Mr Brissilane or some other person.
While I have found that the Applicant was given no adequate opportunity to respond to the allegations of incompetence until after Mr Hibbert had already decided to terminate his employment, he did have an opportunity to make some response during the termination interview on 2 February. If he had found the defective plates as he claims, and if they had been made by Mr Brissilane or someone else, surely the Applicant would have mentioned this and protested his innocence on 2 February.
I have concluded that the reinstatement of a former employee, who has in effect blamed another employee for defective work, and who has failed on any test of balance of probability to satisfy the Court that the defective work was the responsibility of anyone but himself, would inevitably create disharmony and would disrupt working relationships as outlined by the Chief Justice in Nicolson.
I have also concluded that an employee who has adopted a defence such as described but produced that defence only at trial and never mentioned it at the termination interview is an employee who is unlikely to enjoy a long tenure with his employer. Again, I am content to rely on the comments of the Chief Justice in Nicolson.
Having said that, the breaches of S170DC and S170DE were quite clear and reasonably substantial compensation is warranted. I have taken account of the Applicant’s age and his experience in the printing industry. On the other hand, I have also taken account of the fact that the Applicant is at present earning a little more in net terms than he did with the Respondent, albeit only in a casual capacity and not in his chosen trade.
In all the circumstances, I consider appropriate compensation to be 15 weeks salary at $552 a week gross (i.e. the Applicant’s weekly salary at termination as set out in Exhibit A1).
I therefore order compensation in the sum of $8,280 and direct that that sum be paid to the Applicant within 21 days.
MINUTES OF ORDERS
THE COURT ORDERS:
1. The Respondent pay the Applicant compensation in the sum of $8,280.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 11 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 19 July 1996
Solicitors for the Applicant: Price Higgins
Counsel for the Applicant: Mr Skinner
For the Respondent: Mr Hargrave
Date of hearing: 15 and 16 July 1996
Date of judgment: 19 July 1996
