The Printing and Kindred Industries Union (South Australian Branch) and Collotype Labels Pty Ltd [1994] IRCA 185

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY NO. SI 173 OF 1994 BETWEEN: THE PRINTING AND KINDRED INDUSTRIES UNION (SOUTH AUSTRALIAN BRANCH) Applicant AND: COLLOTYPE LABELS PTY. LTD. Respondent REASONS FOR JUDGMENT BOULTON J.R. The applicant filed the within application on behalf of one of its members, a Mr. Catford. Mr. Catford is aged in his early thirties and is a printing machinist by occupation. He commenced work with the respondent on 28 November, 1989. The -2- respondent is a company which operates a printing works at Mile End. The Award under which Mr. Catford was employed was the Federal Graphic Arts Award, 1977. While there was no formal proof of incorporation of the respondent, I am satisfied it was duly incorporated, having regard to evidence that it carried on business as a company. Mr. Catford's employment was terminated on 13 July 1994. The respondent regarded Mr. Catford as a good tradesman, at least up until the time he suffered injury at work on 23 February l993. Prior to that date there had been problems with regard to Mr. Catford's punctuality at work. He had received 2 written warnings, one dated 1 May 1991 (exhibit R1) and the other dated 5 March 1992 (exhibit R2). Both letters make reference to several verbal warnings about punctuality which had been given. The injury suffered by Mr. Catford at work was to his back. As part of the attempt to rehabilitate him, he returned to work -3- with the respondent after the date of his injury on light duties. After being placed initially in the bindery, he was put in the platemaking department. By late April 1993 he had received a further written warning, dated 23 April 1993 (exhibit R3). This on its face was not directed to punctuality but to "attitude", efficiency and disruption of other employees by excessive talking. Subsequently, but prior to December 1993, Mr. Catford was off work for about five months on account of his back condition. After his return to work, he received a further written warning from the respondent, on about 10 December 1993 (exhibit A7). This related to Mr. Catford's time of commencing work each day, notification to the respondent of absences and other matters. There was also a meeting on 10 December 1993 between representatives of the respondent, Mr. Catford, his legal representative and a representative of the applicant. The matters referred to in exhibit A7 were discussed at that meeting. Some refinement of the respondent's requirements notified in exhibit A7 was requested by Mr. Catford's legal representative in a letter dated 14 December 1993 (exhibit A8) to the respondent. -4- The respondent recorded what is described as its "continued dissatisfaction with your attendance and punctuality" in a letter dated 31 March 1994 (exhibit A9) to Mr. Catford. Representatives of the respondent met with Mr. Catford and a representative of the applicant on 6 April 1994 to discuss the continuing problems between the respondent and Mr. Catford. By letter dated 20 April 1994 (exhibit A10) the applicant dealt with some of the issues raised at the 6 April 1994 meeting. Ultimately, Mr. Catford's employment with the respondent was terminated at a meeting at which he was handed the respondent's letter dated 13 July 1994 (exhibit A1). Mr. Catford was unaccompanied by any legal or Union representatives at this meeting. Exhibit A1 lists dates running between 6 April 1994 and 13 July 1994 on which dates the respondent alleges either lateness for work or non-attendance by Mr. Catford. There is also a complaint about his productivity. It was agreed at trial that the sum paid by the respondent to Mr. Catford on his termination was sufficient in lieu of the period of notice otherwise required. -5- Subsequent to his termination, Mr. Catford produced a hand printed document in which he dealt with the dates enumerated in exhibit A1, (26 days in all) providing his reasons for either absences from or lateness arriving at work. This became exhibit A13. Having observed Mr. Catford in the witness box for several hours, I do not accept the explanations he provided for his absences from or late arrivals at work. Some of the absences enumerated in exhibit A1 are in a different category because he had doctors' certificates justifying those absences. The relevant dates are 8 April 1994, 11 April 1994, 20 June 1994 and between 23 to 27 June 1994. That still leaves 18 other days, of absences or lateness. The flavour which permeated the case was Mr. Catford's dissatisfaction with his treatment by WorkCover, including what he perceived to be the respondent's non-co-operation with WorkCover and its requirements for him. This encompassed Mr. Catford's view that even the limited duties suggested by WorkCover after his return to work were in truth greater than he should have to perform. I have the distinct impression that this dissatisfaction manifested itself in Mr. Catford's adopting a cavalier attitude to turning up to work on time, or indeed turning up at all (apart from those occasions for which he held medical certificates). I accept that it was important to the respondent's business that Mr. Catford be punctual. -6- My unease about Mr. Catford as a witness was bolstered by evidence relating to his completion of daily time dockets. Mr. Catford admitted in evidence that he arrived at work at about 8.30 am on 20 April 1994. The daily time docket completed by him for that day showed him commencing work at 7.00 am. I do not accept his explanation that he stayed back the night before and charged the extra time worked then to the following day. Generally, I prefer the evidence of the respondent's witnesses where their evidence conflicts with that of Mr. Catford. The applicant focused on an alleged breach by the respondent of para. 170DC(a) of the Industrial Relations Act 1988 ("the Act"). The case for the respondent was that it had terminated Mr. Catford's employment for a valid reason connected with his capacity or conduct. I am not satisfied that the applicant has proved a contravention of s.170DC(a) of the Act. My reasons appear when dealing with the question of whether or not the termination was otherwise -7- harsh, unjust or unreasonable. I am satisfied, however, that the respondent has proved that, apart from ss. 17DE(2) there was a valid reason for Mr. Catford's termination connected with his capacity or conduct. Despite sympathy for him concerning the aftermath of his February 1993 work-related injury, I am satisfied that the cumulative effect of lateness for, and those absences from work for which Mr. Catford did not have medical certificates, provided the respondent with a valid reason for terminating his employment. According to Mr. Vinecombe, a director of the respondent, it was these factors, rather than Mr. Catford's productivity, which were the primary ones behind the termination. The applicant has not proved to my satisfaction that Mr. Catford's termination was harsh, unjust or unreasonable. The criticisms directed at the respondent in this regard were those which founded the alleged contravention of para. 170DC(a). These related to the alleged failure on the part of the respondent on the day of termination to give Mr. Catford an opportunity to defend himself against the allegations made, and the fact that the respondent did not arrange for a representative from the applicant to be present at that meeting. While I accept that the respondent did not in terms invite Mr. -8- Catford to discuss and explain each of the instances listed in exhibit A1, I do not accept that Mr. Catford was not at liberty to discuss and explain those instances or any of them had he so wished. I find that an attempt was made to contact a representative of the applicant to be present at the 13 July 1994 meeting but to no avail. The applicant also levelled criticism at the respondent for what was said to be a lack of counselling of Mr. Catford on its part. I do not consider a lack of counselling to be of great moment, in the light of the earlier warnings and meetings to discuss Mr. Catford's performance as an employee. I do not think Mr. Catford could have been under any real misunderstanding about what might happen to his employment if he continued the course of conduct exhibited by him, particularly since the early part of 1994. I am, however, critical of the respondent for having included in the letter of termination (exhibit A1) references to those dates for which Mr. Catford had medical certificates excusing his attendance from work. Mr. Vinecombe appeared to have sought to set himself up as an arbiter of Mr. Catford's medical condition, improperly in my view. -9- Even if I had been satisfied that a relevant contravention of the Act had occurred, I would not have required the respondent to reinstate Mr. Catford. I consider reinstatement to be impracticable. Another employee has taken Mr. Catford's job in the plateroom. I have doubts also that mutual trust and confidence could be restored as between the respondent and Mr. Catford were he to be reinstated. The order I make is that the application be dismissed. I certify that this and the EIGHT (8) preceding pages are a true copy of the reasons for judgment of Judicial Registrar Boulton. DATED: 19 October, 1994. Appearance for the Applicant: Mr. Parham, Assistant Secretary, Applicant Union -10- Solicitors for the Respondent: Elston & Gilchrist Solicitor appearing for the Respondent: Mr. C. Swan Date of hearing: 5 October, 1994 Date of judgment: 19 October, 1994