Kerry Lee Hicks and McCoys Bakery Pty Limited [1995] IRCA 70

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 1457 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N: KERRY LEE HICKS Applicant A N D McCOYS BAKERY PTY LIMITED Respondent Reasons for Judgment (Delivered ex tempore and revised from the transcript) 28 February 1995 PARKINSON JR These are my reasons for decision in the matter of Kerry Lee Hicks v McCoys Bakery Pty Limited, matter no VI 1457 of 1994. In this matter the applicant sought leave to amend the title of the proceedings from McCoys Bakery to McCoys Bakery Pty Limited. Such leave was granted and the title of the proceedings was amended in accordance with that application. The applicant in this matter is 23 years old and was employed by the respondent in the packing room of the respondent's bakery as a packer. She has since birth suffered from a hearing impairment which is significant and which has resulted in the applicant being a proficient communicator in sign language but having limited oral communication skills. The applicant was employed by the respondent in January 1994 after she had successfully completed a subsidised three month work experience training program with the respondent. Her employment with the respondent was permanent. The following witnesses were called in the proceeding: Kerry Hicks - the applicant Gillian Wells - Commonwealth Rehabilitation Service Lorna Hicks - the applicant's mother Roger Hocking- Senior Inspector, Department of Business & Employment Trish Stowe - Case manager - Bendigo Access Employment Ruth Scarfe - Bendigo Access Employment Peter Sullivan - Inspector, Department of Business & Employment Melissa Scott - employee of the respondent Ross Tarran - director of the respondent Alan Cobb - manager of the respondent. The evidence of all of the witnesses in this proceeding was that the applicant's work performance was satisfactory during the entire period of her employment until July 1994. Whilst there was some evidence that the applicant had made mistakes in packing orders, the evidence was that these mistakes were common to all employees in the packing area and that the problem was an endemic one in that area. Mr Tarran, a director of the respondent, gave evidence that there was a permanent and persistent problem with all staff in the packing area in terms of their accuracy in filling orders. Ms Scott, who was employed in the packing room as a packer at the same time as the applicant and who remains in the respondent's employ, also gave evidence as to mistakes being made by herself and other employees. Whilst there was evidence in the proceedings of concern being expressed by the respondent as to the number of errors made by the applicant, I am not satisfied that the applicant was any more or less responsible for the number of mistakes in the packing area than any other employee. There were two incidents in particular which were referred to by the respondent as identifying the gravity of the problem of mistakes made by the applicant. These incidents occurred apparently in the month of July, at the earliest only weeks before the applicant was dismissed. The first incident was a matter arising out of an interview between Mr Cobb of the respondent and two employees including the applicant, in relation to issues of mistakes in the packing area. It was alleged that the applicant reacted angrily and with extreme upset to the interview and, as a result, engaged in unsatisfactory conduct at the workplace. There was also an allegation arising out of that interview of wrongful or poor packing of a particular order by the applicant. Whilst the respondent says that this matter was one of, or a part of, the reasons for the termination of the employment, Mr Tarran's evidence was that the applicant's explanation for her conduct was accepted, and that this incident was thereafter disregarded in its entirety as a result of that explanation. That is the view that I take of that incident for the purposes of these proceedings. In second incident, which was described as the "sausage roll incident", there is a dispute between the respondent and the applicant as to the date on which it allegedly occurred. The applicant alleges that the incident occurred some two weeks prior to the termination of her employment. The respondent alleges that the incident and the telephone conversations arising out of that incident with Ms Hicks senior, occurred days before the termination of the applicant's employment. The respondent says that this incident and the attitude of the applicant's mother on the telephone, wherein she allegedly accused the respondent of picking on the applicant and of discriminating against her, were also part of the reasons relied upon by the respondent for the termination of the applicant's employment. The sausage roll incident involved an allegation that there were missing from an order to be delivered to a customer of the respondent approximately four dozen sausage rolls. The evidence is that the applicant had left the workplace and had gone home at the end of her shift. Her mother answered the telephone and was addressed by Mr Cobb. Ms Hicks senior's evidence was that the ensuing conversation was in the nature of a query about missing sausage rolls and how they had been packed. Ms Hicks senior's evidence was further that the items were subsequently located and that after that she offered to deliver the items herself to resolve the problem. This offer was rejected by Mr Cobb as being unnecessary. Mr Cobb's evidence confirmed in all material respects the evidence of Ms Hicks senior, except for the date. He alleged that the sausage roll incident and the allegations of picking on the applicant and discriminating against her, took place the day before the termination of the employment . I am satisfied that this conversation and the sausage roll incident occurred approximately two weeks before the termination of the applicant's employment. I accept Ms Hicks senior's evidence as to the substance of the telephone conversation regarding the mistakes in the order. I make this finding because the evidence given by Mr Tarran and Mr Cobb contained inconsistencies, both as between them and at times within their own evidence. It should however be said that even if the sausage roll incident had taken place only a day or two before the termination of the employment, and further that even if it were to be found that that incident and the conversation with Ms Hicks senior were the reasons for the termination, I would find nevertheless that the termination of employment was not for valid reason and was harsh, unjust and unreasonable. This is because the sausage roll mistake was a single incident occurring in a workplace where it is apparent that there are entrenched difficulties with accuracy in filling orders. To select one person and single them out in those circumstances is harsh and unjust. Further, there is no basis, in my view, for reliance upon the alleged conduct or words of the applicant's mother as a reason for the applicant's termination. Such a reason would be in my view not a valid reason. I turn now to consider section 170DF(1)(e) of the Industrial Relations Act. I am satisfied that the reason for the termination of the applicant's employment was that she had lodged a complaint in relation to her wages with the Department of Business and Employment. I find that the respondent contravened section 170DF(1)(e) of the Act. I have overnight and again this day carefully considered the evidence as to the sequence of events, including the decision to terminate the employment of the applicant. I accept the evidence of Mr Hocking, an inspector with the Department of Business and Employment, that on Monday 8 August 1994 he attended the premises of the respondent and informed the respondent's director Mr Tarran of the complaint made by the applicant in respect of her wages. I accept Mr Hocking's evidence as to Mr Tarran's response to that information, which was, "Well, that's the last straw. I'll sack the bitch". When the applicant attended for work on the evening of Mr Hocking's inspection she was sacked. Having regard to my finding as to unjustness of any termination arising out of alleged mistakes being made in the packing department, I am satisfied that the concerns raised in relation to those mistakes were general and were not merely related to the applicant. There is, therefore, some coincidence between the timing of the visit by Mr Hocking regarding the complaint of the applicant in respect of her wages and the termination of the employment on that same day. That coincidence in timing, along with the verbal reaction of the respondent's director referred to earlier to the applicant's complaint and the failure of the respondent to explain why that particular mistake, at that particular time,resulted in the termination of the employment of the applicant. These circumstances, in my view, entitle the court to draw an inference that the reasons for the termination of the applicant's employment, or at least one of the reasons, was the complaint that she had filed against her employer involving alleged violation of laws or regulations in relation to the payment of her wages. I am satisfied that this so, and am satisfied on the basis of the evidence put before me on behalf of the applicant in these proceedings. I find that the respondent in terminating the employment of the applicant on 9 August 1994 contravened the provisions of the Industrial Relations Act, in particular section 170DF(1)(e) and section 170DE(1) of that Act. I turn now to consider the issue of procedural fairness in the context of section 170DE(2) of the Industrial Relations Act and section 170DC. I further find that there was no opportunity given to the applicant to be heard in relation to her defence at the time of the termination of her employment. The news of her termination was delivered orally by her superior. At that point in time no reason was given and no specific incident was raised as a complaint against the applicant. I find this on the basis of the evidence of the applicant, which I accept in its entirety, as to the procedure adopted upon her termination. The fact that the applicant had no opportunity to be informed as to the allegations against her, and no opportunity to reply, makes the denial of procedural fairness of all the more significance. The applicant was not told in detail the reasons for her termination, nor was she given at any time even during the course of her employment any warning that her employment was under threat. The applicant is deaf. A fair process in the present circumstances required in my opinion a written warning that the applicant was required to improve her performance. In my opinion, and having regard to the circumstances of the applicant, this situation is a classic case where a mere exhortation to improve directed towards the applicant is not sufficient to accord procedural fairness in the context of the requirements of the Act. In that regard I refer to the decision of the Chief Justice of this court in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 at 243. Upon a decision being taken to terminate the employment of the applicant, the process adopted was unfair because the applicant was not given clear and express detail of the allegations which were made against her, nor was she given the opportunity to respond. Having regard to her hearing impairment that opportunity ought also to have been in writing to have been fair and complete in its procedural fairness sense. I find that the termination failed to comply with the requirements of section 170DC of the Act in terms of giving the applicant an opportunity to respond to allegations against her conduct or work performance. Further, I find that the termination was not for valid reason, contravened section 170DF(1) of the Act, and failed to accord procedural fairness and therefore was harsh, unjust and unreasonable. In view of the circumstances of this matter I find that there is a breakdown in the relationship between the applicant and the respondent, and that the reinstatement of the applicant to her former position or indeed to any position with the respondent would be impracticable. The applicant has in fact obtained alternative permanent full time employment and has been working at such since October 1994. The applicant confines her claim to financial loss. I am of the view that compensation ought to be ordered. The applicant, according to exhibit Y4 in the proceeding, worked in the period immediately prior to the termination on average at least the equivalent of a full time permanent workload of 40 hours per week with the respondent. The hourly rate set down in the relevant Award to which reference may be had for the calculation of the appropriate rate of payment is $9.20 per hour. I refer to exhibit Y5, the Pastrycooks Award, in that regard. My calculation on the basis of a 40 hour week is an amount of $368.00 per week. I am satisfied that this is the amount which would have been payable to the applicant assuming compliance with the appropriate and relevant Award provisions and entitlements, and that that would be the amount that the applicant would have received for the hours she worked, had she been fully remunerated. I have decided to order payment in the sum of 10 weeks compensation for the period of financial loss between the date of termination of 9 August 1994 and the date of the applicant being successful in obtaining full time alternative employment on 10 October 1994. The amount ordered is $3680.00. That amount is a gross amount. In my view this amount is appropriate having regard to my findings pursuant to section 170DF(1) of the Act. The orders of the court are: 1. That the respondent pay to the applicant the sum of $3680.00. 2. That such amount is payable within 21 days of the date of this hearing. I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson as recorded in the draft transcript and revised by the Judicial Registrar. Associate: Dated: 28 February 1995 Solicitors for the applicant: Arnold Dallas & McPherson Counsel appearing for the applicant: Ms M Young Respondent in person Dates of hearing: 27 & 28 February 1995 Date of judgment: 28 February 1995