Allan Craig Gibson and Bosmac Pty Ltd [1995] IRCA 1

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NI No. 380 of 1994 NEW SOUTH WALES DISTRICT REGISTRY BETWEEN: Allan Craig GIBSON Applicant AND: BOSMAC PTY LIMITED Respondent MINUTES OF ORDER 6 January 1995 Judicial Registrar Tomlinson THE COURT DECLARES: 1. The termination of the employment of the Applicant did not contravene Division 3 of Part VIA of the Industrial Relations Act 1988; AND THE COURT ORDERS THAT: 1. The Application of the Applicant Allan Craig Gibson be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NI No. 380 of 1994 NEW SOUTH WALES DISTRICT REGISTRY BETWEEN: Allan Craig GIBSON Applicant AND: BOSMAC PTY LIMITED Respondent Reasons for Judgement 6 January 1995 TOMLINSON JR By application dated 9 June 1994 Allan Craig Gibson sought an order declaring the termination of his employment to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988, reinstatement, compensation and such other order as would put him in the same position as if the employment had not been terminated. The Applicant commenced work with the Respondent on 21 March 1983 and was employed as a welder pursuant to the New South Wales Metal and Engineering Award of 1990. The Respondent Bosmac carries on the business of the fabrication of metal implements for local agricultural, mining and manufacturing industries. It was common ground that it was an accepted work practice of the Respondent's that employees worked overtime on a regular basis. The relevant Award allowed for this and on behalf of the Respondent it was alleged that Bosmac was not a member of any employer organisation other than the Employers' Federation of New South Wales and that consequently, Bosmac was not a respondent to the Metal Industry Award 1984. The Court heard evidence that often the Respondent/employer could only provide short notice to the employees of the need to work overtime. The stated reason for the termination was "alleged refusal to do overtime Saturday mornings." The termination date was 27 May 1994. Proceedings by way of Notice of Motion were instituted on behalf of the Respondent stating that there was an adequate alternate remedy under existing State legislation. Wilcox CJ refused that application and the unlawful termination application was heard on 2 December 1994. By affidavit dated 1 November 1994 the applicant deposed: "1. I was born on 2 July 1962 and am 32 years of age. I have since 1988 lived in a de facto relationship with Kim Douglas. There are two children of the relationship, Justin aged 4 years and Cody aged 1 year. 2. On 21 March 1988 I was engaged by Bosmac Pty Ltd to carry out welding work. 3. I am not a qualified welder and understand and verily believe that I was paid a labourer's wage although I carried out the work of a welder. During the course of my employment I performed overtime when required. 4. In March 1992 my wife and I purchased our home at 3 Cookapie Street, Parkes. I was after that time involved in renovations and the care of my family in the hours that I was not required to work for my employer. 5. To the best of my knowledge and belief I worked the overtime required of me which was notified to me with sufficient notice. 6. On or about 18 April 1994 I was informed by my employer that if I did not work overtime I would be dismissed. 7. During the week commencing Monday, 23 May 1994 to Friday, 27 May 1994 I completed 10 hours overtime working 50 hours that week. 8. On Friday, 27 May 1994 at approximately 10.00 am I was informed that there was no overtime for the weekend commencing 28 May 1994. During the lunchbreak I made arrangements with my family for activities during the weekend. At about 3.00 pm on Friday, 27 May 1994 I was advised by the manager of the employer company that I would be required for overtime on Saturday, 28 May 1994. I said to Robert Ehsman, "I am sorry but I have just made other commitments for tomorrow." Robert Ehsman replied, "If you do not work on the weekend you will be sacked." I did not work overtime during that weekend because of my commitments. 9. On Monday, 30 May 1994 I arrived at the work place at 7.30 am and was informed by Robert Ehsman, "Pack your tools you are sacked." 10. I remained unemployed from 30 May 1994 to 21 June 1994. 11. I obtained casual employment from 21 June 1994 until 12 July 1994. 12. I have been unemployed since 13 July 1994." The applicant told the Court that he had left school at the age of sixteen and that an average working day with the Respondent was from 7.30 am until 4.00 pm. Regular overtime was included in the week's work. For some time prior to the dismissal Mr Gibson had been involved in renovating his house and this had taken quite a bit of his time. Mr Gibson was a keen aviculturist and kept a large collection of some 100 birds which needed regular care and feeding. Towards the end of the employment the Applicant did less overtime than he had done previously. By affidavit dated 28 June 1994 the Office Manager of the Respondent, Mr Robert Ehsman deposed the date of the termination was 30 May 1994 and that the reason for the termination was the failure by the applicant to obey the reasonable lawful direction to work overtime. By affidavit filed 2 December 1994 Mr Ehsman further deposed: "9. Prior to April 1994, a system existed at Bosmac that where as result of customer requirements employees were required to work overtime, instructions were given to employees to work such overtime, by the foreman. 10. By April 1994 the system referred to in paragraph 9 above, proved to be unsatisfactory for various reasons, including: (a) because of the chain of communication between myself the foreman and the employees short notice was given to employees about the requirement to work overtime; (b) as a result of the short notice employees were generally disgruntled. (c) Mr Gibson was not doing his fair share of overtime work, which resulted in other employees having to complete additional overtime hours. Furthermore, by April 1994 customer demands for work appeared to increase which made it even more important that an effective system of overtime was put into place. 11. As a result of the above problems and the increased customer demands, I instigated a change to the system of overtime in early April 1994. From April 1994 I personally gave instructions to employees to work overtime. The removal of the foreman in the chain of communication sped up the process and afforded employees a longer period of notice of any such overtime requirement. Furthermore, by personally being involved in the giving of instructions to work overtime the employees that failed to do overtime work would be answerable to me. 12. On Thursday 14 April 1994 I received a new job from an existing customer that had to be completed as soon as possible. Consequently, I decided that it would be necessary for the employees to work on Saturday 16 April 1994. Bosmac has a practice of opening the workshop on Saturdays where it was impossible to meet customer demands during the ordinary week of Monday to Friday. Consequently, I had a discussion with the foremen George Wright and Brant Bignell and said words to the following effect to them: "We are going to have to work this Saturday for about 3 to 4 hours." "Can you go around to speak to those who aren't here." I then spoke to the employees in the workshop individually, including Mr Gibson and said words to the following effect. "We are going to have to work this Saturday for 3 to 4 hours." All of the employees except Mr Gibson indicated one way or the other whether or not they would attend work on Saturday. Mr Gibson did not respond to my instruction. At that time I did not know whether Mr Gibson intended on working on Saturday 16 April 1994 or not. 13. At about 4 pm on Friday 15 April 1994 I again spoke to Mr Gibson about the need for him to work on Saturday 16 April 1994. As Mr Gibson was finishing work for the day and he walked past my desk and I said words to the following effect. "We're going to have to work tomorrow for 3 to 4 hours. Are you coming in ?" As Mr Gibson walked out the door he said words to the following effect: "You'll be lucky." 14. On Saturday 16 April 1994 Mr Gibson did not attend work. Approximately 7 of the 11 employees attended work. All of the employees that did not turn up to work, except Mr Gibson, had previously advised me that they would not attend and provided me with an explanation. As a result of Mr Gibson's failure to attend work on that Saturday the employees that attended work were required to work for an additional 30 minutes. Mr Gibson did not advise me that he was going to attend work and he did not give me any explanation for his absence. 15. On Monday morning 18 April 1994, I drafted an internal memo advising employees that they were required to work reasonable overtime under the Metal and Engineering Award. At about 8 am, shortly after the employees commenced work I affixed the memo to the staff notice board. A copy of the memo is annexed hereto and marked with the letter "C". The staff notice board is used for all important communications between management and employees. 16. Immediately after displaying the memo on the notice board I approached Mr Gibson with a letter, that I had written, folded up in my hand and I handed the letter to Mr Gibson, saying the works to the following effect: "Here's a present for you." Mr Gibson then opened the letter and looked at it. Mr Gibson said words to the following effect: "Shit happens." This was the end of the conversation. A copy of the letter dated 18 April 1994 is annexed hereto and marked with the letter "D". 17. On Friday 27 May 1994 at about 9.45 am I was advised by a customer that they required an urgent project completed immediately. 18. On Friday 27 May 1994 at about 10 am I walked into the morning tea room where the employees were having morning tea and said words to the following effect: "Guess what chaps we have to work tomorrow. Everybody if possible." Mr Gibson said words to the following effect: "I won't." I said words to the following effect: "Why." Mr Gibson said words to the following effect: "Too much to do." I said words to the following effect: "Like what?" Mr Gibson did not reply. 22. On Friday 27 May 1994 at about 4 pm as I was at my desk and Mr Gibson was leaving work for the day I said words to the following effect: "See you tomorrow." Mr Gibson said words to the following effect: "Not tomorrow." I said words to the following effect: "If you don't come in, you can pick up your tools on Monday." Mr Gibson did not reply. 23. On Saturday 28 May 1994, Mr Gibson did not attend work as requested. Approximately 8 of the 11 employees attended work as instructed. All the employees that did not attend work, other than Mr Gibson, made previous arrangements with me as noted above. Mr Gibson had not provided me with an explanation for his absence. As a result of Mr Gibson failure to attend work the employees, that did attend work were required to attend work for an additional 30 minutes. 24. On Monday 30 May 1994, at about 7.30 am Mr Gibson approached me and said words to the following effect: "What do I do? Do I pick up my tools or what?" I said words to the following effect: "Pick up your tools." Mr Gibson then collected his tools and left the premises. 25. Later on 30 May 1994, Mr Gibson approached me and said words to the following effect: "I need a separation certificate to get social security." I said words to the following effect: "I'll get the secretary to organise it." A copy of the separation certificate is annexed hereto and marked with the letter "E"." The oral evidence of the applicant differed from this account in that the Applicant stated Mr Ehsman specifically advised him that he did not have to work on the Saturday, but however that later on at 4 pm Mr Ehsman altered his earlier advice and asked the applicant to work. Under cross-examination the Applicant stated that he replied to the Office Manager using words to the effect: "No. I've made other arrangements to work. And basically at that stage I said 'I won't be in', and he said, 'Well, if you don't come in pack your tool-box, you'll be sacked.' And I said 'I'll be in Monday. See what happens then'. And I come in on Monday. I went up to Robert Ehsman - he was at his desk - and I said 'What's the story? Am I sacked?' And he said, 'Go and pack your tool-box. You're sacked'." The Court also heard evidence from two current employees of the Respondent. There was nothing untoward about that evidence however it is my practice to treat such testimony with caution. On behalf of the Applicant Mr Moore of Counsel stated that on the week of the termination the Applicant had already performed substantial overtime and that "reasonable overtime" is a mixed question of law and of fact. For overtime to be reasonable it was contended there must be both a reasonable request and a lawful request. It was contended on behalf of the Applicant that the parties never really settled what was reasonable overtime within the circumstances of Bosmac's operations. I cannot agree with this assertion and would point out that on the evidence the applicant did receive a warning letter specifically dealing with the matter of overtime. That letter was dated 18 April 1994 and is the annexure marked "D" in the Affidavit of Mr Ehsman and it provided: "Mr A Gibson There is a memo attached to the notice board reminding employees of the overtime award requirements. As you have on several occasions in the past, refused to work overtime or have just not turned up, we must advise that this is an official warning that you must work overtime when customers' timing dictates. Failure to comply with this notice, will result in termination. We will endeavour to advise you when overtime is required with as much lead time as possible." Under cross examination the Applicant stated that he was not aware of the need to do overtime on that particular occasion but in light of the established work practices of the Respondent I am of the view the Applicant should have been so aware of that need. The Respondent was not a large employer and there was no evidence placed before the Court that the Applicant tried to discuss the position concerning overtime but was unsuccessful. I am of the view that that letter provided the opportunity for the Applicant to sort the matter out and clarify the position concerning overtime. There was however no evidence placed before the Court as to the other instances referred to wherein the Applicant allegedly refused to work overtime. The Applicant had worked with the Respondent since 1988. The Respondent took appropriate steps to indicate the Applicant should be aware his conduct and attitude to overtime was an issue. The Applicant on his own evidence did nothing as a result of receiving that letter. He did not take the matter up further with his employers nor attempt to answer the allegations. On behalf of the Applicant it was contended that the Respondent was not placed in jeopardy by the failure of the applicant to work on Saturday 28 May 1994. That contention may be true in this particular instance but in general it is my understanding that it is not the province of this Court to dictate to an employer how to run its business. On behalf of the Respondent it was contended that the Applicant was well aware of the consequences of refusing to work overtime. I do not find the request of the Respondent to have been oppressive. It was common ground that during the week in question the Applicant had worked considerable overtime but it is my view that that fact alone does not make a request oppressive having regard to the fact that it was always open to the Applicant to broach the reasonableness of the request with the Respondent and to possibly negotiate a mutually satisfactory arrangement. I find the termination of the Applicant to have been for a valid reason. It was conceded on behalf of the Applicant that the Applicant was less inclined to work overtime than other employees, but that up until 18 April 1994 the Applicant had worked what he considered to be reasonable overtime without complaint. It is clear that the Applicant had had opportunity to discuss the reasons why he would not be available for overtime on previous occasions, but that it was becoming his habit not to communicate with the Respondent and discuss with his employer his availability to work overtime. In subsequent submissions to the Court it is noted the Applicant no longer seeks reinstatement as other employment has been found. The application of Allan Gibson is dismissed. I certify this and the preceding eleven (11) pages are a true copy of the Reasons for Judgement of Judicial Registrar Tomlinson. Associate : Date : 6 January 1995 Appearances: Counsel for the Applicant : Mr R Moore Solicitors for the Applicant : McIntosh Emerton & Thomas Counsel for the Respondent : Ms Kristin Barratt Employers' Federation