INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1739 of 1994 BETWEEN: berhe g. tukue Applicant AND c.d.c. diocasting pty ltd Respondent REASONS FOR JUDGMENT 8 March 1995 Judicial Registrar Murphy Introduction The applicant in this matter is a trained teacher from Ethiopia. After arriving in Australia he worked for six years at Toyota in Port Melbourne. In around mid 1994 he decided, for family reasons, to cease his employment there and to seek to obtain employment closer to his home in Dandenong. He attended at the Dandenong office of the C.E.S. and that office arranged for him to be referred to the respondent as a candidate for a Jobstart program. This program involves employment and during the initial period the employer receives a wage subsidy from the Commonwealth. The applicant attended at the respondent's plant and was interviewed. He was subsequently advised that he was the successful applicant for a position. He commenced employment on 29 August 1994 and was terminated on 27 September 1994. He seeks a remedy under s.170EE of the Industrial Relations Act 1988 ("the Act"). The Applicant's Duties The applicant gave evidence that when he commenced employment, he was employed in the upstairs section of the respondent's factory. This section was involved in a small assembly line and packing operation for motor vehicle components which were manufactured by the respondent downstairs. The applicant worked in this section of the factory for two or three weeks. He said his work performance was good in that area. During that time, due to apparent communication breakdowns, the applicant was late for work on more than one occasion. Apparently as a result of this he was moved from one team to another in the upstairs section. After a further occasion on which he arrived at the plant after it had opened he was called into the office of Mr Terry Cashmore, supervisor of the relevant area, and a discussion occurred between the parties in relation to his attendance record. Mr Cashmore said that the discussion related to his unsatisfactory work performance about which he had been counselled on a number of occasions. The applicant gave evidence that he understood from this discussion that he had been sacked and he then went downstairs and saw the union representative. Following the intervention of the union representative a discussion occurred between this representative and the manufacturing manager of the respondent. As a result of this, enquiries were made as to whether a position was available to the applicant downstairs. The manufacturing manager, Mr Valle did ascertain that a position was available and he then referred the applicant to Mr Wenke who was the production manager of the respondent. Both Mr Valle and Mr Wenke gave evidence that they advised the applicant that the position downstairs was for a trial period of one month. The applicant denied this and maintained that the first time that the issue of him being on probation was raised was in these proceedings. At all events the applicant commenced downstairs on day shift. A couple of days after this he asked Mr Wenke could he, for personal reasons, change to afternoon shift. This was arranged and the applicant performed afternoon shift on approximately two occasions. The applicant in the downstairs area was required to perform work as a machine operator. This work consisted of inserting various diecasts into machines. The machine would then separate the diecast into component parts for motor vehicles, which were then to be placed in various drums. The duties are quite simple and the diecasts have features on them to ensure that they are placed into the machine correctly. If they are inserted incorrectly the parts are damaged. Another of the machines punched a number of holes in a diecast. The applicant worked on three machines in the period that he was downstairs. In relation to one of the machines evidence was led that the bulk of the parts produced by the applicant had a defect. This was because one part of the machine had bent with the result that the machine was malfunctioning. The applicant gave evidence that he was not trained properly to do the work by Mr Chen, who was the supervisor in charge of the area that the applicant worked in. The applicant gave evidence that the way that he found out how to operate the two machines was by asking other employees and that Mr Chen did not check his work during the course of the shift. Mr Chen's evidence was contradictory to this. He maintained that he did show the applicant how to perform duties on each of the machines and he then watched him produce a significant number of pieces to ensure that he in fact knew how to perform the work. He gave evidence that learning to operate the machines only took a few minutes. Mr Chen also said that he, during each of the shifts, checked the applicant's performance to ensure that the work was being performed satisfactorily. Mr Wenke gave evidence that the respondent had various sheets which it used to record each production process. These were to be signed by the supervisor and also by the machine operators. No sheets were produced in evidence and Mr Wenke was unsure as to whether the sheets were made out at the times that the applicant was working downstairs on the machines. The applicant gave evidence that on one night that he was working on a particular machine he advised the supervisor on a number of occasions that the machine was malfunctioning but he was told by another employee to continue working. In addition he gave evidence that Mr Chen had told him, at one stage, that his work performance on the machine was good. The applicant claimed that he also had achieved production targets well in excess of the normal production on one of the machines. The respondent's evidence was that the applicant's performance on the machines was unsatisfactory and that virtually the whole of his production on one shift was faulty. The nature of the machines was such that error rates of this level were exceptional. No allegation was put to the applicant that his work was too slow. Circumstances Of Termination As a result of difficulties with the applicant's performance he was called into Mr Wenke's office after about the second or third afternoon shift that he worked downstairs in order to be given a first written warning in relation to his performance. The aspects of his performance which were of concern were, according to Mr Wenke, the "broken trim tools; rejection rate too high, and slow work". The evidence in relation to this final interview is somewhat contradictory. The applicant maintained that when his performance was raised by Mr Wenke he indicated to Mr Wenke that he had told Mr Chen of the difficulties in relation to the machine. Mr Chen had intervened to deny this statement and to allege that the difficulties with the use of the machine were the applicant's own fault. The applicant gave evidence that he told Mr Chen at that point not to speak to him but that he would speak to him later. The applicant also said that he had not been properly trained by Mr Chen. Mr Wenke's version, corroborated by Mr Chen, is that in the course of this discussion the applicant said in a threatening fashion to Mr Chen "I will get you". He also said that "I will talk to you". Both Mr Wenke and Mr Chen took the first comment as a threat. After the threat was made Mr Wenke gave evidence that he then proceeded to summarily dismiss the applicant. The applicant's termination pay was forwarded to him by mail. The actual reason given by Mr Wenke for his termination in evidence was as follows: "And what did you say to him at that point when he made the outburst? - I told Mr Tukue that I will not tolerate a supervisor being threatened especially in that tone. I said 'due to your - your smashing the trim tool and your unacceptable work performance in the past, I'm dismissing you on the spot, sacking you on the spot'." The applicant appeared to be very angry, the tone of his voice was angry. He admitted that he raised his voice. Mr Chen's recollection of that meeting was very vague. The only thing that he could recollect about the matter was the alleged threat. He remembered that the applicant said "I don't understand you. I don't want to talk to you". He then claimed that the last thing the applicant said was "I will get you." The applicant's response was that all that he said to Mr Wenke and Mr Chen was that he did not want to talk to Mr Chen but would rather talk to him later and that he said "I want to talk to you later". He denied making any threat. Mr Wenke's evidence in relation to the interview was unsatisfactory. He admitted that his recollection of the conversation was vague. He also said that he accepted that language difficulties between the applicant and Mr Chen may have been a problem. Mr Wenke accepted that in the interview the applicant was denying any unsatisfactory performance and asserting that he had not been properly trained by Mr Chen. Mr Chen in turn was blaming the applicant. Mr Wenke was unable to recall the applicant's version that he, the applicant, had told Mr Chen not to interrupt when Mr Chen sought to intervene in the discussion between the two of them. Issues In The Proceeding There are three central issues which need to be resolved in order to determine the outcome of this proceeding. The first is whether the applicant was on probation. The second is, if he was not on probation, did he make a threat which justified summary termination. The third is, if he did not make a threat which justified summary termination, was the respondent justified in terminating him in any event. Probation This is another example of a case where had the parties put this matter in writing the case would not be before the Court. That matters of substance in employment relationships should be committed to writing is even more important when one of the parties is a migrant to this country. Mr Wenke gave evidence that he told the applicant that he was on one months probation. Mr Valle claimed that he also told the applicant that he was on one months trial. This latter evidence was not put in cross examination. Further Mr Valle gave evidence that the respondent's employee manual, which was not tabled, provides that all employees are on a probationary period of up to two months. The only documentary evidence which makes any reference at all to the issue of probation is a transfer note signed by Mr Valle which transferred the applicant from the upstairs section of the plant to the downstairs section which has the comment "one month trial" on it. That note also gives as the reason for transfer "not suited for assembly work". The Applicant was adamant that at no time was he advised that he was on a trial or on a probation period. The evidence of Mr Wenke in relation to the probation period was unsatisfactory. He claimed that he told the applicant on the second night that he was in the downstairs area that he was on probation. He also gave evidence that he did not work at night. Mr Valle's evidence was that he told the applicant that it was a trial period but left it to Mr Wenke to convey the details to the applicant. The written record of a trial period is ambiguous and does not specifically indicate that probation was conveyed to the applicant. A further difficulty in relation to the respondent's claim that this matter was governed by Regulation 30 of the Industrial Relations Regulations is that on the respondent's own version probation only occurred after the transfer from the upstairs section of the respondent's plant to the downstairs section. This leaves the question as to what was to be the position in the event that the probation period downstairs terminated. Did that mean that the whole employment had terminated or did it mean that the applicant would go back upstairs? I prefer the evidence of the applicant in relation to the issue of probation. He was emphatic that at no time had probation been raised with him. Given that he was on a Jobstart program which went for four months it is a matter of surprise that there is no documentary evidence which would indicate that in relation to any part of his employment with the respondent he was on a one month probationary period. I further note that the Jobstart agreement, which was tabled, has provision for a probation period but this is left blank. I therefore find that this matter is not governed by Regulation 30B of the Industrial Relations Regulations. Did The Applicant Commit An Act Of Misconduct? The respondent argued that the applicant had committed an act of misconduct justifying summary termination on the basis that he made a threat to Mr Chen the supervisor in the presence of Mr Wenke. The applicant's response to this was that he denied saying that he would get Mr Chen. He further said that it was not his intention to make any threat to Mr Chen, that he wanted to deal later with Mr Chen in relation to their differences rather than when he was having his discussion with Mr Wenke. The witnesses for the respondent conceded that the applicant did indicate that he wanted to speak to Mr Chen later. There is a direct contradiction in the oral testimony here. Having regard to the serious nature of the allegation and with some hesitation I am prepared to give the benefit of the doubt to the applicant. He presented as a passionate yet truthful witness attempting to convey in somewhat broken English his version of events. He was protesting the allegations of the respondent that his performance was unsatisfactory and there was no contest on the issue that he had indicated that he did not want to address his remarks to the supervisor but rather wanted to deal with the manager Mr Wenke. His version that one of the machines was indeed faulty was not strongly challenged and the respondent was unable to satisfactorily explain how the high error rate had occurred if there had been any supervision. From this corroboration of his evidence in the evidence of the respondent, and the fact that certain allegations about slow work were not put to him, I accept the applicant as an honest witness. Even if it is accepted as alleged that he said "I will get you" I am prepared to give him the benefit of the doubt, given that English is not his mother tongue, that it was not intended as a threat but it was meant to convey to Mr Chen that he would speak to him after he had finished speaking to Mr Wenke. The comments in the interview certainly indicated some difficulties in their relationship which a reasonable employer should have sought to address in a proper manner. For these reasons I therefore reject the respondent's argument that it was entitled to summarily dismiss the applicant. Unsatisfactory Performance The other substantive issue of dispute between the parties was whether or not the applicant had been an unsatisfactory performer in the three days that he was working in the downstairs area of the plant. The applicant continually denied that this was the case and maintained that he had achieved above the production target. He further claimed that any difficulty in relation to one particular machine was the subject of a report by him to the relevant supervisor. The applicant was also vigorous in his evidence that there had been a failure to properly train him in his duties. Mr Wenke in his evidence did state that he told Mr Chen to teach the applicant. I gained the impression that the applicant may have had somewhat unreasonable expectations of the training component of the Jobstart scheme. The evidence of Mr Wenke, which I accept, was that the applicant's performance had been unsatisfactory by virtue of the large number of defective items which he had produced and for this reason he was brought into his office to be given a first written warning. I am therefore prepared to accept the evidence of the respondent that there were indeed problems with the applicant's performance. I accept, however, the applicant's evidence that in relation to one evening's work his poor performance had been caused by a faulty machine. Mr Chen did not satisfactorily explain why it was that if the applicant was working on an unsatisfactory machine the faulty pieces were not detected during the course of the evening if the applicant was the subject of regular and close supervision as claimed by the respondent. The respondent also claimed that the applicant had been the subject of a number of counselling sessions in relation to his performance on the packing assembly line in the upstairs area. The applicant denied this and there was no evidence by the respondent that he was the subject of any formal written warning while he was upstairs. I therefore conclude that although there were some problems with the applicant's performance the applicant had an explanation in relation to at least one aspect of that performance which he was attempting to provide to the respondent at the time of his termination. Was There A Breach Of Section 170DC Of The Act? Section 170DC of the Act requires that an employee has an adequate opportunity to respond to allegations against him. Here the applicant had the issue of his performance raised by Mr Wenke at the time of the final interview. The applicant was giving his version of events when the alleged threat was made. I have found that the threat was not in fact made. The evidence of Mr Wenke was that the purpose of the meeting, which ultimately became the termination meeting, was to give him a written warning about his performance. One of the grounds of his failure to perform was that he was slow. This was not put to the applicant in the hearing and it was not clear that it was put to the applicant in the actual interview. The applicant was giving his response to the other performance matters raised but he was doing so in the context of a written warning meeting not one which was contemplating the termination of his employment. The respondent had a discipline code and this should have been persisted with. As Gray J said in Byrne v Australian National Airlines Limited (1994) 52 IR 10 at 65: "Finally, the refusal to hear the appellants on reasons why they ought not to be dismissed involved a denial of natural justice. Even if a person is caught in the act of some gross misconduct, there might be mitigating factors which would lead a reasonable employer not to dismiss." The provisions of s.170DC are excluded where it is not reasonable to give the employee an opportunity to respond. Here there was nothing to prevent Mr Wenke allowing the applicant to respond to the work performance issues. There was nothing to prevent Mr Wenke from allowing the applicant to respond to the allegation that there had been a threat. From the evidence matters became heated. While this is understandable it prevented compliance with s.170DC which was the duty of the respondent For these reasons I find that the responded has not complied with s.170DC of the Act. Did The Respondent Have A Valid Reason To Terminate The Applicant's Employment? In view of my finding that there has been a breach of s.170DC of the Act, on the authority of Liddell v Lembke, (Industrial Relations Court of Australia, Wilcox CJ, Keely and Gray JJ, unreported, 3 November 1994) it is strictly unnecessary for me to consider the further question as to whether the respondent had a valid reason to terminate the applicant's employment under s.170DE of the Act. In deference to the argument of the respondent on the matter it is appropriate for me to express my conclusions on the point. Having regard to my finding that the applicant was not guilty of misconduct the respondent must rely on the applicant's failure to perform as the valid reason for his termination. The evidence of the respondent was that he was to be given a first written warning in relation to his performance when he attended the interview with Mr Wenke. That he was to be given a first written warning is consistent with a conclusion that his performance was not so unsatisfactory as to justify termination. The applicant had only been working in the downstairs section in the factory for some three days and although I accept that the duties were of a simple nature in working as a machine operator, it is clear from the evidence that the respondent had a proper procedure in relation to dealing with unsatisfactory performance. That procedure envisaged at least a first written warning. The respondent was abiding by that procedure at the time that the applicant was terminated. Having set out to abide by the procedure it is not open to the respondent to rely on the applicant's performance deficiencies as its valid reason. I am therefore not prepared to find that the respondent has discharged its onus of proof under section 170EDA that it had a valid reason to terminate the applicant. Remedy The applicant does not seek reinstatement to his position. Having regard to the matters which have ensued between him and the respondent and in particular the fact that he does not seek reinstatement I am satisfied that reinstatement is not practicable. In considering whether compensation is appropriate I am required, on the authority of Nicolson -v- Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 244, to take into account events which may have occurred had the unlawful termination not occurred. In its case I am satisfied that there was a significant risk that the applicant's employment would be regularly terminated by reason of his unsatisfactory performance had he not been unlawfully terminated. Although I have rejected key elements of the evidence of Mr Wenke and Mr Chen in relation to the alleged threat I am prepared to accept the other evidence by them and by the other witnesses for the respondent in relation to difficulties that the respondent was having with the performance of the applicant. Although the applicant maintained his performance was satisfactory I am satisfied by the weight of the evidence that there were unsatisfactory features of his performance both when he was working in the upstairs section of the factory and in the downstairs section. I have found that these did not justify his dismissal on 27 September but there was, in my opinion, a significant risk that they would have continued and justified the regular termination of his employment at a later date. The applicant was only employed by the respondent for a period of just under a month. I am of the view that it is unlikely that he would have remained employed for more than another month had the termination of his employment not occurred on 27 September. The gross wages that the applicant was receiving per week were $355.92 and the applicant gave uncontradicted evidence that the employer was being paid a weekly subsidy of $200.00 under the Jobstart program. For the purposes of determining an amount of compensation to be paid to the applicant under s.170EE the respondent's Jobstart subsidy is irrelevant. Having regard to the significant risk that the applicant's employment would have terminated within one month I am of the view that an appropriate amount of compensation should be calculated by reference to what he would have earned in a period of about a month and I therefore propose to order that the respondent pay to the applicant compensation in the sum of $1,400.00. Order Of The Court 1. That the respondent pay the applicant compensation in the sum of $1,400.00. I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 8 March 1995 Applicant appeared in person. Representative for the Respondent: Australian Chamber of Manufactures Counsel for the Respondent: Mr C. Burston Date of hearing: 7 February 1995 Date of Judgment: 8 March 1995 CATCHWORDS INDUSTRIAL LAW - Termination of employment - whether probationary employee - whether unsatisfactory work performance - employee making alleged threat during warning interview - summary dismissal - threat allegation not accepted - whether opportunity to respond to allegations - whether valid reason for termination - compensation - whether employment would have been regularly terminated. Industrial Relations Act 1988, ss.170DC, 170EDA and 170EE. Byrne v Australian National Airlines Limited (1994) 52 IR 10 Liddell v Lembke, (Industrial Relations Court of Australia, Wilcox CJ, Keely and Gray JJ, unreported, 3 November 1994) Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 BERHE G. TUKUE -v- C.D.C. - DIOCASTING PTY LTD NO. VI 1739 of 94 Before: mURPHY JR Place: MELBOURNE Date: 8 MARCH 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1739 of 1994 BETWEEN: berhe g. tukue Applicant AND c.d.c. diocasting pty ltd Respondent MINUTES OF ORDER 8 March 1995 Judicial Registrar Murphy THE COURT ORDERS THAT: 1. That the respondent pay the applicant compensation in the sum of $1,400.00. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.