Claude Stephen Volpato and Ultimate Video [1995] IRCA 21

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY NO. ACT 1205 OF 1994 BETWEEN: CLAUDE STEPHEN VOLPATO Applicant AND: ULTIMATE VIDEO Respondent REASONS FOR JUDGMENT BOULTON J.R. The applicant has brought application in respect of the termination of his employment by the respondent. During the course of the proceedings I amended the name of the respondent to read Sandstorm Pty. Limited ACN 050 583 705. the true employer of the applicant. The respondent is an x-rated video duplication outlet which also distributes videos on a wholesale basis. The applicant had been employed by the respondent since June 1993, as a duplicator. Essentially his job involved setting up blank video cassettes to record from a master cassette, then titling the recorded cassettes, packing them and getting them ready for sale and distribution. The applicant was employed under the terms of the Shop Assistants Award (ACT). At trial he was aged 39. His previous work experience had included clerical work in the Public Service, he had operated a cleaning business and an entertainment booking agency. The applicant's superior was a Mr. Devalentin. Mr. Devalentin was the manager of the business. He was 12 years younger than the applicant. It was common ground at trial that there had been differences of opinion between the applicant and his superior about the tidiness of the applicant's work area. His failure to provide stocktake figures on time and what could be described as the applicant's somewhat casual attitude to the keeping of ordinary work hours. The applicant's untidiness resulted, on occasions, in missing cassette tapes and the incorrect labelling of master tapes. Including the applicant and his superior, there were 6 employees of the business. Mr. Devalentin had issued a memo dated 2 July 1994 (ex. R1) to staff including the applicant relating to problems resulting from untidiness in the duplication area. That memo included these words: "There are simple requests not unreasonable to expect. If they are not followed then I am left with no alternative but to dismiss those concerned". The only person who gave evidence before me were the applicant and Mr. Devalentin. Despite there being a significant conflict between them. to which conflict I will return later in these reasons, I found both quite credible. I consider that while the applicant accepted there were problems with the tidiness of his workplace, he thought it more important to concentrate on what he saw as his primary role, that being the duplicating of tapes and getting them ready for distribution. He seemed less prepared to accept that other staff might have to be deployed during absences by him from work to clean up any mess left by him. I accept also that the applicant was tardy in his provision of stocktake figures despite those being required of him as part of his ordinary duties. It was apparent to me that not only did the applicant not hold Mr. Devalentin in very high regard, he made that view apparent to Mr. Devalentin. I find that the applicant did address the matters raised in ex. R1 for about 4 weeks after the issue of that memo. After that, he went back to his old ways. He was not co-operative in providing stocktake figures for August 1994. The applicant took holidays in late September 1994. He came back to work on 24 October 1994. Mr, Devalentin spoke to him on his return and the next day produced a written memo (ex. R3) specifically directed to the applicant and canvassing, inter alia. problems with work hours, stocktake figures and the tidiness of the applicant's work area. The applicant left work that day and was absent for the rest of the week. There was no notification from him as to the reason for his absence. He returned to work on Monday 31 October 1994. He was in possession of medical certificates covering his absence from work but these were not produced to the respondent. It is common ground that the applicant and Mr. Develantin spoke on his return to work. According to the applicant, Mr. Devalentin told him his services would no longer be required. The applicant then told Mr. Devalentin he was still on sick leave and would not be returning until Thursday (3 November 1994) and if Mr. Devalentin wanted to sack him, he would have to wait until then. According to Mr. Devalentin after the applicant told him he was on sick leave, Mr. Devalentin agreed to have a further talk with the applicant on the Thursday, and he added he would make up his mind about terminating the applicant or not on that day. The applicant also swore that on his return to work on 31 October 1994, Mr. Devalentin told him he was a bad influence on other staff. Mr. Devalentin claims that during the 31 October 1994, conversation the applicant said words to this effect: " I have got paperwork and if you want it back it will cost you $5,000.000. I was expecting something like this would happen and I have been collecting paperwork just in case. I am not going to use it against you I will use it on your clients". The applicant denied this threat. When the applicant returned to work on 3 November 1994, Mr. Devalentin terminated his employment. He swore that he did so because of the applicants threat earlier that week. On the evidence I am unable to make a positive finding that the threat was made. In the absence of the threat, was there a valid reason connected with the applicant's conduct for terminating his employment? If so, should he have been given a final opportunity to defend himself before his employment was terminated? I consider that the respondent has proved valid reasons within the meaning ss.170dE(1) of the Industrial Relations Act 1988 connected with the applicant's conduct and based on the operational requirements of the respondent's business for terminating the applicant's employment. These are the matters I have already addressed encompassing the applicant's attitude to his superior, the untidiness of his work area, the provision of stocktake figures and his attitude to the keeping of hours at work. However, I consider that the applicant was not accorded procedural fairness in the manner of his termination. I find that the respondent had decided to terminate the applicant while he was off work sick. I am fortified in this view by the evidence of Mr. Devalentin who when asked by his solicitor about ex. R3, the memo dated 25.10.94 directed to the applicant said that it was written up on 25 October 1994 "to explain exactly why he was dismissed". In other words Mr. Devalentin had closed his mind on the question prior to the applicant's return to work from being off sick. I consider that the applicant ought to have been given a final opportunity to defend himself about the matters raised to ex. R3 before this employment was terminated. The respondent has contravened para. 170D(a) of the Act in this respect. Turning now to the question of remedy, I consider reinstatement impracticable. I consider it inappropriate not only in light of the type of contravention of the Act I have found proved, but also given the relationship between the applicant and his superior. That relationship could hardly be expected to improve in view of the allegation by Mr. Devalentin of the threat to which I have referred and the applicant's denial of it. In assessing appropriate compensation, I consider that had the applicant been accorded procedural fairness, it is likely his employment with the respondent would not have continued beyond early in the new year. The applicant was paid 2 weeks pay in lieu of notice. He has been in receipt of unemployment benefit including rent relief of $178.00 per week since 12 November 1994. His gross pay at the time of termination was about $466.00 per week. I assess appropriate compensation in the sum of $2000.00. The orders I make are: The application be allowed. 1. The respondent to pay to the applicant the sum of $2,000.00 compensation within 21 days of the date of these orders. 2. I certify that this and the preceding EIGHT (8) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton. .................................................................... Judicial Registrar DATED: 2 February 1995 Appearance for applicant: In person Appearance for respondent: Mr. Smith Solicitors for respondent: Messrs. Gillespie-Jones & Co Date of hearing: 16 January 1995 Date of judgment: 3 February 1995