Construction Forestry Mining and Energy Union and Another and Carousel Glass Pty Limited t/as Modern Glass [1995] IRCA 88

INDUSTRIAL RELATIONS COURT OF AUSTRALIA PERTH DISTRICT REGISTRY N0. WI 330 of 1994

Between: CONSTRUCTION FORESTRY MINING AND ENERGY UNION AND ANOTHER Applicant And: CAROUSEL GLASS PTY LIMITED t/as MODERN GLASS Respondent

Before: Judicial Registrar TOMLINSON Place: Perth Hearing Date: 24 February 1995 Judgement Date: 24 February 1995 REASONS FOR JUDGMENT (EX-TEMPORE) REVISED FROM TRANSCRIPT This is matter number WI330 of 1994, CFMEU first applicant, and John Slattery, second applicant, and Carousel Glass Pty Limited trading as Modern Glass. By application dated 23 August 1994, the applicant sought an order declaring that termination of his employment contravened Division 3 of Part VIA of the Industrial Relations Act 1988 ("The Act"). The applicant further sought reinstatement, compensation and such other orders as would put the employee in the same position as had the termination not taken place. On behalf of the applicant, it was argued that the employer breached section 170DE of the Act in that no valid reason was given for the termination of the employment. It was further argued that section 170DE, subsection (2) was breached in that the effect of that termination was harsh and unreasonable. Secondly, on behalf of the applicant, it was argued that the applicant was denied the opportunity to respond to allegations. And thirdly, conciliation proceedings were alluded to, to support the contention that the applicant was not given due time or accord to respond to allegations made. It is not my practice to deal with proceedings that occurred in conciliation, and so accordingly, I will take that argument no further. The applicant, John Arthur Slattery, told this Court he was 28 years of age and that he had completed 4 years apprenticeship as a glazier and commenced employment with the respondent on 19 March 1993. That employment terminated on 10 August 1994. On the day in question the applicant stated, he arrived at work at 7.45 in the morning and prepared for the daily round. Some 45 minutes later, there was a telephone conversation with Mr Ian Terriaca. It is not my practice to categorically find one way or the other, as to what exactly happened in telephone conversations, when non-vital points of fact are so hotly contested. Suffice it to say at this stage, at the conclusion of that conversation, or conclusion of a period of time shortly thereafter, the applicant believed he had been sacked. In his examination in chief, the applicant stated that he had never sworn at his respondent employer, Mr Terriaca, that he worked overtime regularly, and that he was upset at the manner in which he had been treated. He stated that after the telephone conversation, he was distraught. He telephoned his wife, who arrived at the workplace shortly thereafter, and he left with her. He went home, he had a shower, he collected his thoughts. Later on that day he decided to see Mr Ian Terriaca, having prior telephoned his father, and sought advice as to what to do. The applicant stated he visited Mr Ian Terriaca in the factory, and that the purpose of this visit was to say that he was sorry that he had left the premises at 8.30 in the morning in the fashion that he did, and that the purpose of his visit was to clear the air. He stated that he did apologise. The Court heard various pieces of evidence as to what happened then. However, it is clear that the applicant received a certain amount of money, represented by one week's pay, holiday pay and an amount of $440.00, being 4 days rostered days off. The applicant requested a separation certificate. He was advised by Mr Ian Terriaca that he did not have one. A letter of agreed facts was provided. The applicant stated that he did not refuse to do the job, when he had the conversation early in the morning with Mr Ian Terriaca, but just that he wished to discuss the matter. He stated that during the course of a later telephone conversation, he was given the option of apologising or finishing up on Friday. The applicant told the court that at the time of the dismissal, his job with the respondent was his only source of income, that he had a mortgage and a wife and a child as dependents. He thought he had a good relationship with Mr Ian Terriaca and that he experienced no work problems. He worked overtime gladly and willingly. At the time of his dismissal, the applicant was earning some $700 a week. The applicant advised the court that he received no warning, which in any way would be considered as a threat to his employment about his conduct, his manner of work, his professional conduct, his attitude or anything at all which could be classified as coming within the provisions of the Industrial Relations Act. In fact, he had received some time previously, a letter of credit advising a future lender as to his position and his income. In response, under cross-examination, as to why he regarded with surprise, the request that he apologise, the response was he failed to see why he should apologise for something that he had not done. To my mind, clearly, the applicant demonstrated throughout these proceedings that he was neither abusive nor did he use foul language which could cause offence to the respondent, Mr Terriaca, during the course of a conversation in the morning, discussing the day's proceedings. The applicant was cross-examined about various incidents in June 1993, at Canning Vale, an incident at Gemco, an incident at Racatone and a Christmas party gathering. To my mind, none of those incidents could in any way be categorised as an official warning issued by management to the employee, that his job was at risk, if his conduct did not alter. The case of Steffanoski v Whiskey Soda was mentioned to the Court and the Court was urged to look at the intention of the parties. To my mind, when I look at the intention of the parties, I am of the view that the applicant did not intend to withdraw his labour at the time as a result of the telephone conversations which occurred early in the morning on the day in question. In relation to the authority of Morey v St Mary's District Band, it cannot be held, in my view, that this case falls on fours with that case, as the employee did not resign, quit and withdraw his labour. In the case of Stewart and John Pullin, to my mind, although I have not had the opportunity to read this case in full, in the inter renum of this judgement, the applicant, has not in this case, been reprimanded on a number of occasions for the actions which caused the actual termination. In the matter of Automotive Food Union v Unifoods (VI 758 of 1994), the court there looked at the general demeanour of the applicant on that occasion, with regard to threatening conduct. In my opinion here, there was no threatening demeanour in which the words of alleged abuse were delivered by the applicant to the respondent. Mr Ian Terriaca gave evidence on behalf of the respondent. He is a co-owner of a business together with his wife. He gave evidence as to the four incidents, when allegedly, rebuke was meted out to the applicant for his conduct during the course of his work. And I have to say, that I could in no way consider the circumstances which were presented to the court in any way amounted to a warning, in that the applicant would think his conduct could cause him to lose his job. This Court heard differing facts as to the existence of a shower screen, and where it was, and who was to install it. I do not find it relevant that I make no finding as to where the shower screen was on the day in question. The respondent told the Court that the applicant put the phone on the table, as a result of a telephone conversation, sorting out the day's work performances and that the respondent heard the applicant use, what he found, I assume, to be offensive and affronting language. I have to say that I do not think that the words used at that time would have caused an amount of offence to that particular respondent, Mr Terriaca, as he demonstrated a fair amount of ease, with using that language during the course of examination in chief and cross-examination. Also, I think one has to take the language used within the context of the industry concerned, in that a certain amount of sensitivity would seemingly be lost because of the nature of the workplace. Mr Terriaca agreed that the applicant showed up and he stated: "I thought he wanted a separation certificate. He said he did not apologise at all." I take on board the fact that this applicant, has a wife, he has a mortgage and he has a child. To my mind, he is not the sort of applicant who would lose and leave his job lightly. I am of the view, that he went back as he stated to clear the air. To my mind, he was not afforded that opportunity and when I examine the letter of 11 August 1994, To Whom It May Concern, which stood instead of a separation certificate, I find the language used, with regard to the termination of employment to be rather high handed and arrogant. In no shape or form could it be considered that the door was left open there to discuss the possibility with the applicant. And possibly, it could be said no matter what the applicant did, this respondent was not going to reconsider what I believe to have been an incident that blew up after a fairly trivial telephone conversation, taking into context the whole relationship betwen the parties. Further, in support of my estimation that I am of the view that the respondent, Mr Ian Terriaca failed to give due consideration to the matter, he categorically stated in his cross-examination: "We paid him what he deserved." The Court heard further evidence from Mr Mark Gascoyne. I found Mr Gascoyne to be a most credible and responsible witness and I thank him for his assistance. The Court also heard from Ms Felicia Terriaca, the wife of the respondent and from the brother of the respondent, Mr Robert Terriaca. It is admitted that neither party was present in close proximity in the office late in the afternoon, when the applicant visited the respondent to sort matters out. This court heard there were five telephones, and even if each phone rang on one occasion, or if half of them rang once, it would not be possible for either witness to say categorically, what had happened. However, I have to say I found Ms Felicia Terriaca and Mr Robert Terriaca to be credible witnesses. In summary, I have to say I find the applicant was unlawfully terminated at 8.30 in the morning approximately, as the options given to him were not viable, and there was no valid reason provided for the conduct and language allegedly used by the applicant in a telephone conversation with his respondent employer. Even if the applicant did probably use the bad language, I have to say that such language is a normal cut and thrust language in most industries, particularly the building industry today. There was no warning provided to the applicant, that the use of such language or even the continued use of such language would place his job at risk. I draw your attention to a judgment recently, of His Honour, Wilcox CJ in the case of Nicholson v Heaven and Earth Gallery Pty Limited, handed down in Sydney on 20 September 1994, as yet unreported, having reference number NI 127 of 1994. Therein the Chief Justice stated, when he was dealing with 170DC - I would like to point out that section 170DC deals with the employee is to have an opportunity to respond to allegations levelled against him by an employer: Section 170DC does not require any particular formality, but this does not mean that it is unimportant or capable of perfunctory satisfaction. Section 170DC carries into Australian labour law, a fundamental component of the concept known to lawyers as natural justice, or more recently, procedural fairness. The relevant principle is that a person should not exercise legal power over another to that person's disadvantage and for a reason to him or her, without first affording the person affected the opportunity to present this principle. This is well established in public adminstrative law. It was accepted into international labour law, when article 7 was inserted in the Termination of Employment Convention. Section 170DC is directly modelled on Article 7. The principle, is, I believe, well understood in the community. It represents part of what Australians call a "fair go". In the context, section 170DC is not to be treated lightly. The employee is to be given an opportunity to defend himself or herself against allegations made. That is the particular allegations of misconduct or poor performance that are putting the employee's job at risk. Section 170DC is not satisfied by mere exhortation to improve. To my mind this is an important judgment and I am of the view that it states the ethic behind terminations and to my mind, it is clear that the applicant here was not given a fair go. The applicant went back to try and sort things out. The applicant has been back again and again. It is unlikely, with a family man of his responsibilities that he would just pick up his tools and go. The witnesses we heard cannot categorically say that he did not apologise. Having considered the reasons above, I hereby order the respondent to pay to the applicant the sum of $2000.00, within one month of the date of this judgement. I do not find reinstatement to be a viable alternative. ______________________________________________ I certify that this and the proceeding four (4) pages are a true copy of the Reasons for Judgment of Judicial Registrar Tomlinson as recorded in the draft transcript and revised by the Judicial Registrar. Associate: Jeynelle Moffat