Michael Carter v Bridgestone Australia Limited [1995] IRCA 99

C A T C H W O R D S INDUSTRIAL LAW - Termination of Employment - warnings - whether Applicant dismissed because of temporary absence due to illness - whether termination harsh unjust or unreasonable -compensation. INDUSTRIAL RELATIONS ACT 1988, S170EA, S170EE, S170DF(1)a MICHAEL CARTER -V- BRIDGESTONE AUSTRALIA LIMITED NO. SI 152/1994

Judicial Registrar: L Farrell Place: Adelaide Date: 9th March 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SI 152/1994 B E T W E E N: MICHAEL CARTER Applicant AND BRIDGESTONE AUSTRALIA LIMITED Respondent

MINUTES OF ORDER Judicial Registrar Farrell Date: 9th March 1995

THE COURT ORDERS THAT:

1. The termination of the employment of the Applicant by the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988. 2. That the Respondent pay to the Applicant the sum of $9,000.00 by way of compensation within fourteen days of today's date. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SI 143 OF 1994 B E T W E E N: MICHAEL CARTER Applicant AND BRIDGESTONE AUSTRALIA LIMITED Respondent

BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 9TH MARCH 1995 REASONS FOR JUDGMENT This is an Application pursuant to Section 170EA of the Industrial Relations Act 1988. The Applicant seeks reinstatement and compensation. The Applicant was employed as a second stage tyre builder at the Respondent's Salisbury Plant from the 21st April 1986 until his employment was terminated on the 20th May 1994. The Applicant worked a rotating weekly shift alternating between day, afternoon and night shift. In 1993 the Applicant had been given a series of warnings regarding absenteeism. On the 30th November 1993 a written final warning was issued to the Applicant for continuing absenteeism. On the 31st March 1994, a reiteration of that final warning was issued for continuing absenteeism. On the 13th May 1994 the Applicant was approximately 25 minutes late for work. On the 18th May 1994 the Applicant was suspended without pay. On the 20th May 1994 the Respondent verbally terminated the Applicant's employment. The Applicant subsequently received written reasons for the termination of his employment which stated "a result of your lateness for work having previously received verbal, a written and two written final warnings for absenteeism and lateness". Evidence in the matter was given by the Applicant, Mr Carter, a Union delegate, Mr B McRae . The Respondent's evidence was given by Mr H McManus, Mr V Blacker and Mr T Ryles. There was very little by way of factual dispute in this matter. It was stated by Mr McManus in his evidence that in respect of the absence by the Applicant on the 30th March 1994 that the Applicant stated that he had slept in. The Applicant's evidence was that he was unwell on that date. Both Mr Ryles and Mr McRae gave support in their evidence to Mr Carter's contention. I therefore accept that the Applicant was in fact unwell on the 30th March 1994 and that was the reason for his absence on that day. The Respondent has a well established procedure for dealing with disciplinary matters. It involves a series of warnings followed by a final warning. The warnings are provided in writing and a Union delegate is present during the discussion regarding the warnings. The written warnings in this matter refer to "attendance" however the final written warning mentions absenteeism and lateness. In 1993 the Applicant had taken 25 days sick leave of which 13 days were substantiated by a medical certificate. The Applicant was entitled in 1993, in addition to days substantiated by medical certificate , to a further four days as long as they were not consecutive days. This is provided for in the Award which governs the Applicant's employment being the Plastic, Resins, Synthetic Rubbers and Rubbers (Bridgestone) Consolidated Award 1988. At Clause 27 the Award reads as follows: "27. Sick Leave Every full time employee who is unable to attend or remain at his or her place of employment by reason of illness and who complies with the terms and conditions prescribed by paragraphs (1) and (11) hereof shall be granted by his or her employer paid leave not exceeding the sick leave credit of that employee: (i) The sick leave prescribed shall be granted and the payment in respect of an absence due to illness provided that: 1 Within 24 hours after the commencement of the absence he or she informs his or her employer of his or her inability to attend for duty and, as far as practicable, also informs the employer of the nature of the illness and the estimated duration of the absence; and 2 That during a twelve month period January 1- December 31 of any one year the number of absences from work without a medical certificate or other reasonable evidence does not exceed four(4) days. These four days may be taken singularly. All other claims for sick leave during the twelve month period must be supported with a medical certificate or other reasonable evidence. (ii) For the purpose of this clause illness includes personal injury but does not include an injury for which compensation is payable under the Workers Compensation Act, 1971 of South Australia.