Graham Philip Forster v Stainless Tube Mills (Aust) Pty Ltd [1995] IRCA 51

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 1702 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N: GRAHAM PHILIP FORSTER Applicant A N D STAINLESS TUBE MILLS (AUST) PTY LTD Respondent Reasons for Judgment 27 February 1995 PARKINSON JR This is an application pursuant to S170EA of the Industrial Relations Act 1988 ("the Act"). The applicant seeks the following orders: 1. An order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act; 2. an order requiring the respondent to reinstate the employee in employment; and 3. an order that the respondent pay compensation to the employee. During the course of the proceedingthe court was informed that the applicant no longer sought anorder for reinstatement. Background and findings of fact. The applicant who is 31 years old is a qualified fitter and turner with various additional post trade certificates. He was employed as a machine shop operator at the respondent's engineering workshop in 1988. He was promoted in 1989 to the position of foreman and remained in that position until the termination of his employment on 19 September 1994. At the time of the termination of his employment, the applicant's immediate supervisor was Mr Andrew and he was also subject to direction from Mr Kastropil, a director of the respondent. The reasons given for the termination of the applicant's employment were contained in the affidavit of Mr Kastropil dated 6 October 1994, those reasons being "poor and fraudulent timekeeping." The reasons were also set out and expanded upon in a further affidavit sworn by him on 6 February 1995 (Exhibit L3) as follows: "(i) that contrary to verbal and three written warnings, the applicant had failed and refused to attend work at proper starting times. (ii) the applicant worked inefficiently during normal working hours and then claimed excessive and unnecessary hours of overtime. (iii) the applicant left the workplace after clocking on without permission or just cause, thereby claiming pay for hours of work which had not been performed. (iv) the applicant clocked on for overtime after all other employees of the respondent had left the premises. As a result, in view of his poor productivity, it was apparent that the applicant was claiming hours of overtime that he had not worked. (v) on Thursday 15 September 1994 the respondent had claimed hours of overtime which he had not worked." These were the matters relied upon as the reason for the termination of the employment on 19 September 1994. The overtime claims and the absence from the respondent's premises as set out in (iii) above were said to constitute fraudulent timekeeping on the part of the applicant. I now turn to consider each of the matters set out above in turn in relation to the operation of S170DE (1) and (2). Lateness for work. The evidence is that the applicant had a poor record of attendance for work on time. In September 1993 the applicant was given a written warning as to his tardiness in attendance (Exhibit P2). The evidence was that after this written warning the applicant's attendance level improved for a period of time. He received no further warnings for any reason between September 1993 and June 1994. The evidence is however that this improvement was not maintained and that there was during the course of the employment a pattern of lateness in attendance. A further written warning was given to the applicant regarding his late attendance on 14 June 1994 (Exhibit P4). On 5 May 1994 the applicant was injured during the course of his work when a motor weighing approximately 80 kilograms fell approximately 1.8 metres onto his back. The applicant's absence from the workplace was short and he made significant efforts to return to work very shortly after the accident. His return to work was effected by way of light duties for a period of time. This injury required ongoing physiotherapy treatment and the applicant's evidence was that he was in significant ongoing pain. His evidence was that the injury resulted in his flexibility of movement being significantly reduced particularly in the mornings when the pain was more intense, and that he required a period of time to warm up. Usually his physiotherapy appointments were scheduled for the mornings for this reason. The applicant acknowledged that he was frequently late in the mornings for work, but says that this lateness is explained by his injury and difficulty in movement in the mornings, and his physiotherapy attendances. There is evidence in the form of clock cards that the applicant's lateness for work was an ongoing problem and that it existed prior to the injury being suffered (Exhibits L1 and L2). However aside from a warning in November 1993 , the only other written warning in relation to the applicant's lateness was given on 14 June 1994 during the period in which the applicant was suffering from the back injury (Exhibit P4). Whilst the respondent describes its letter of 20 June 1994 (Exhibit P6) as a further warning letter, it is merely a reply to the matters raised by the applicant in his response to the warning of 14 June. The applicant's reply (Exhibit P5) to the warning letter of 14 June 1994 acknowledged his lateness but asked for some indulgence because of the difficulties he was suffering with his back. He requested that the respondent allow him an 8.30 a.m. to 5.00 p.m. day until he was no longer on light duties. The respondent agreed to this in part, but limited its operation to 1 August 1994 (Exhibit P6). There was no suggestion that during that period of modified hours the applicant did not comply with starting or finishing times, and no clock cards were tendered in relation to this period of time. There is no evidence to suggest that there was any reason referable to the continuation of the applicant's injury or recovery from that injury which formed a basis for the adoption of the 1 August time frame. No discussions were held with the applicant's physiotherapist to attempt to ascertain a reasonable time frame for renewal of ordinary starting times. The evidence was that the effects of the applicant's injury continued after the 1 August. The evidence also was that the applicant did not meet his starting time once it reverted to 7.30 a.m. In this case I am satisfied that there was a persistent failure to attend for work on time despite the expressed concern of the respondent, and thus the respondent did have a valid reason for the termination of employment related to the conduct or performance of the employee. However having regard to the circumstances of the applicant in this matter and in particular his back injury and the explanation offered to the respondent for his continued lateness and request for special consideration whilst on light duties, I am satisfied that the decision, at that particular time, to terminate the applicant's employment by reason of his lateness was harsh. This is particularly so in light of there being no action taken by the respondent to establish the ongoing prognosis for the applicant's injury, despite some recognition in Exhibit P5 that there was a basis for allowing the applicant later starting times. One further matter arose in respect of this aspect of the applicant's timekeeping which it is appropriate to refer to at this stage. The evidence of Mr Kastropil, when dealing with the issue of the applicant's tardiness in timekeeping, was that the applicant took time off to go to the physiotherapist but did not seek permission or inform the respondent in advance. This evidence was contrary to that given by Mr Andrew who said that the applicant did inform him in advance of his physiotherapy appointments and did seek his permission. There was a significant amount of overstatement of the evidence by the respondent in these proceedings. It is apparent that the applicant behaved properly in relation to his absences for physiotherapy treatment and that there was no basis for such criticism as was made by the respondent in this regard. Working inefficiently - Length of time to complete work. A number of examples were given as to the basis upon which it was alleged that the applicant did not perform his work efficiently. I deal with each of those examples individually although they were relied upon cumulatively. The Queensland Job In August 1994, the applicant was sent by a director of the company, Mr Martin to perform work on hydraulic equipment located at the respondent's operations in Queensland. The applicant was the subject of criticism by Mr Kastropil for the time spent in completing this job. The applicant's evidence was that he arrived in Brisbane and travelled to the respondent's premises on Saturday. On his arrival he found the premises to be closed for the weekend. He attended at the premises first thing on Monday morning, and his evidence is that he worked consistently on the repair job until it was completed on Thursday afternoon. He returned home that evening and presented for work in Melbourne on Friday morning. There was no evidence to suggest that the length of time taken to complete the job was unreasonable. The applicant had been sent to do the job because of what the respondent believed to be an excessively priced quotation from outside contractors to perform the job. Whilst there was criticism from the respondent's director Mr Kastropil as to the amount of time the applicant spent on the job, there was no suggestion in the evidence that the exercise was not cost effective for the respondent. There was no evidence to contradict the applicant's evidence as to the nature of the work to be completed on the machinery and the reasons for the job taking the length of time that it did. I am not satisfied that the criticisms of the respondent in this respect were valid.