Peter Michael Gordon and Aprin Pty Limited [1995] IRCA 20

CATCHWORDS INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - opportunity to respond - conciliation - onus of proof - valid reason connected with capacity. Industrial Relations Act 1988, S170DC, S170DE, S170ED, S170EDA PETER MICHAEL GORDON AND APRIN PTY LIMITED No. TI 198/94 Before:Ryan JR Place: Hobart Date 27 January 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY Matter No TI 198/94 B E T W E E N: PETER MICHAEL GORDON Applicant AND: APRIN PTY LIMITED Respondent COURT:RYAN JR PLACE: HOBART DATE: 27 JANUARY 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. This application be dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No TI 198/94 B E T W E E N: PETER MICHAEL GORDON Applicant AND: APRIN PTY LIMITED Respondent COURT: RYAN JR PLACE:HOBART DATE: 27 JANUARY 1995 JUDGMENT EX TEMPORE This is an ex tempore judgment but it will be settled from the transcript and copies of the judgment will be posted to both parties. I think that will occur next week or early the week thereafter at the latest. The applicant was employed by the respondent to drive an articulated truck and carry timber. Paid employment commenced on 8 October 1994 after unpaid trial work on 6 and 7 October. The respondent terminated the employment after 10 days, on Monday, 17 October. On 26 October the applicant sought remedy in the court claiming unlawful termination of employment. On 9 November Commissioner Leary certified, pursuant to subsection (2) of the section 170ED of the Industrial Relations Act 1988, that the Commission had been unable to settle this matter by conciliation. Her certificate also contained the following statement: The previous terms of settlement were not honoured. On 1 December a Deputy Industrial Registrar in the Tasmanian Industrial Registry, Mr Ian McLeod, wrote to the District Registrar, Tasmanian Registry, Industrial Relations Court of Australia as follows: Peter Michael Gordon and Aprin Pty Limited. I refer to this matter which was received in the Industrial Registry on 8 November 1994. I have been advised that this matter has been settled. It was not practicable to require the parties to reduce the terms of settlement to writing. There is also on the court file a minute of 9 December 1994 of a telephone conversation between a registry officer and a representative of the Transport Workers Union suggesting the relisting of the matter before Commissioner Leary in late December 1994. I have taken no account of that. I have proceeded on the basis of the section 170ED certificate of 9 November 1994 and I heard the matter and the evidence of six witnesses on 23 January 1995. On 17 January 1995 and again on 23 January 1995 Mr Barry Hansch of the TWU, appeared for the applicant and Mr Damian Durkin, Industrial Relations Manager of the respondent company, appeared for the respondent. Registrar Cooper's order of 17 January 1995 is as follows: (1)respondent to file and serve a brief statement of facts and contentions by Friday, 20 January 1995; (2)list for hearing at 10.30 am on 23 January 1995. The respondent's statement of facts contains a useful summary of events, at least from the position of the respondent. I will read and incorporate into this judgment all but the last three paragraphs of this statement and then summarise the applicant's position. I will not include the last three paragraphs of the respondent's statement because they deal with the respondent's concerns and views on the conciliation process. I am not concerned with the conciliation process other than to note that at the end of the day the matter remained unresolved and this judgment deals with the trial that followed. The relevant parts of the respondent's statement of facts are as follows: In the matter of Aprin Pty Limited (trading as Woodbarn South) and the dismissal of Mr Gordon, statement of facts, filed 23 January 1995. Mr Gordon was employed by Aprin Pty Limited (trading as Woodbarn South) at Bridgewater near Hobart on 8 October 1994, Saturday. Woodbarn South is in the business of selling firewood to the public either by truck delivery or customer pick up at the yard. Part of the business of selling wood this way is the picking up of suitable logs from logging contractors and delivering them to the wood yard at Bridgewater to be later cut up to size. Also Woodbarn South has been able to secure a market for pallet logs and buys these also from some logging contractors. And finally Woodbarn South does deliver some pulp wood from the bush directly to the ANM Paper Mill at New Norfolk. Upon application for the position Mr Gordon represented himself as being an experienced log truck driver and articulated truck driver generally by written CV and verbally. Mr Gordon was terminated with one week's pay in lieu of notice on Monday, 17 October 1994 by the manager, Mr Barry Waite. The reasons given amounted to a belief by Mr Waite that Mr Gordon was not a competent truck driver and was a danger to himself, his fellow workers and the public at large. No written reasons, only verbal were given on termination. Mr Waite was of the view that Mr Gordon had had sufficient time to demonstrate his competency. The applicant is claiming that the termination was harsh, unjust and unreasonable under section 170DE(2), but respondent is claiming that there was a valid reason for the termination and that this was related to the applicant's conduct and performance. Section 170DC reads as follows: An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself or herself against the allegations made; or (b) the employer could not reasonably be expected to give the employee that opportunity . Was the applicant given the opportunity to defend himself against the allegation of incompetency or were the circumstances such that the respondent could not reasonably be expected to give the employee that opportunity? Incompetency is a valid reason for termination and the onus is on the respondent to prove it, see section 170EDA(1)(a). I accept that the respondent terminated the applicant because of a perceived lack of competency. The applicant's failure to later pass certain aspects of an appropriate test tends to support the allegations, see Exhibit R2 the Log Truck Accreditation Assessment, 24 November 1994. Even if the court found that the termination was valid in that pursuant to section 170DE(1) there was a valid reason connected with the employee's capacity, in this case an allegation of incompetency or lack of capacity, the termination could still be held to be harsh, unjust or unreasonable if the court found that the applicant was given inadequate opportunity to respond or defend himself. At the conclusion of the hearing on 23 January Mr Hansch asked me to adjourn in order that he might consider the transcript of evidence. I refused his application. Mr Durkin had already made his final submissions. However, at the request of Mr Hansch I undertook to consider the transcript, if it was available to me, before I gave my determination, which was scheduled for today, Friday 27 January. I have read the transcript. I have concluded that the applicant was given adequate opportunity to respond to what I find were substantiated allegations of inexperience and incompetency. Indeed, even if I had concluded that the applicant was not given an adequate opportunity to respond and that the termination was in that sense unfair I would not have exercised the court's discretion so as to order either reinstatement or compensation. My assessment of the sworn evidence and the documentary evidence on file and the documentary evidence tendered at the trial has led me to the conclusion that on 8 October 1994 the applicant did not possess the loading, reversing, and general operational and maintenance skills rightly expected of an experienced driver of an articulated log truck and had not developed or redeveloped those skills at the date of termination on 17 October 1994. The fact that he failed certain crucial elements of an accredited driving assessment on 24 November 1994 is relevant but only because it suggests that he was unlikely to have had those skills on 17 October and lost them between then and 24 November. I repeat I am quite satisfied that the applicant did not possess adequate skills on 8 October when he began the employment or on 17 October when the employer ended the employment. Having said that I have not placed a great deal of weight on the respondent's claims that the applicant was too slow. I accept the applicant was slower than competent drivers in the sense that he took longer to complete trips and tasks, but the respondent never provided precise requirements for trips or tasks. The fact of the matter is that the respondent was expecting and required an experienced and competent driver for an articulated log truck. The applicant was inexperienced and despite the superficial attractiveness of a well constructed curriculum vitae, Exhibit R1, a careful examination of that document does not suggest any real experience in that area, that is in the area of the operation of an articulated log truck. The applicant claimed some limited experience in that area in 1984, 10 years prior to this 1994 employment, but there is no reference to that in Exhibit R1. The applicant was clearly below the exacting standards required in several areas and especially in reversing and loading procedures and in folding the trailer on to the prime mover. The court has no reason to disbelieve the evidence of Vanderstaay, Kingston, Hall and Waite, the four respondent witnesses in that regard or, for that matter, the evidence of the applicant's own witness, James Maxwell Russell, a heavy vehicle driving instructor with the Road Transport Training Centre. The respondent provided trial work on 6 and 7 October and further guidance from other drivers between 8 and 17 October. The applicant was given a reasonable period of time to demonstrate that he had the skill and experience to undertake the difficult and responsible work. He did not have the skill or the experience. The termination was justified and the application is dismissed. I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.