Peter Cox v The South Australian Meat Corporation [1995] IRCA 100

C A T C H W O R D S INDUSTRIAL LAW - Termination of Employment - Refusal to perform occasional duty - reinstatement impracticable - mitigation of loss where compensation awarded.

INDUSTRIAL RELATIONS ACT 1988, S.170EE, S170DE.,s170EA PETER COX -V-THE SOUTH AUSTRALIAN MEAT CORPORATION NO. SI 226/1994

Judicial Registrar: L Farrell Place: Adelaide Date: 8 March 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SI226/1994 B E T W E E N: PETER COX Applicant AND S. A. MEAT CORPORATION Respondent

MINUTES OF ORDER Judicial Registrar Farrell Date: 8 March 1995 THE COURT ORDERS THAT: 1 The termination of the Applicant's employment by the Respondent contravenes Division 3 of Part VIA of the Industrial Relations Act. 2. The Respondent do pay to the Applicant the sum of $8,500.00 within 14 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 226 OF 1994 B E T W E E N: PETER COX Applicant AND SA MEAT CORPORATION Respondent

BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 8 MARCH 1995 REASONS FOR JUDGMENT . This is an Application pursuant to Section 170EA of the Industrial Relations Act. In this matter evidence was given by Mr Cox, the Applicant, another employee who was dismissed at the same time as the Applicant, Mr Walker, another employee of the maintenance department, Mr Claire, the Applicant's supervisor, Mr Walkinshaw and Mr Barton the Chief Engineer of the Respondent. I find the facts as follows:- The Applicant had been employed by the Respondent as a maintenance fitter for a period of approximately eight and a half years when his employment was terminated on the 14th October 1994. At the time of his termination his rate of pay was $490.00 per week. He was a Union delegate and he had held a fork lift drivers licence obtained in the course of his employment with the Respondent for some years. He had on occasions driven a fork lift in the course of his employment. About one month before his employment was terminated he had attended a meeting of the Respondent's maintenance workers. The purpose of the meeting was to put forward matters which would assist in obtaining a pay rise for the maintenance workers. Following the meeting a document was provided to the General Manager of the Respondent, the relevant parts of which are as follows: "Mr D Lilley (SAMCOR General Manager) The maintenance employees meeting held at 9:30 am on the 14th September 1994 moved and passed the following points. 1 Staff and production personnel will not engage in maintenance duties. 2 No multi skilling by maintenance employees to be performed until a satisfactory enterprise bargaining agreement is reached". The employer provided a response by letter dated 16th September 1994, the details of which are as follows: "In respect to your letter dated 15th September 1994, management is prepared to meet with a delegation from the Maintenance to discuss the area of concern outlined in the letter, and address the matters. I assume that all these matters have been discussed with the Engineer or Maintenance Supervisor according to the normal Award provision requirements on avoidance of industrial disputes. I will make myself available for a meeting at 11:00 am on Monday 19th September to meet with an on-plant delegation. Await your response". On the afternoon of Friday, the 14th October 1994 the Applicant became aware that Mr Walker, also a maintenance fitter, had been driving a fork lift. Mr Walker had driven the fork lift to examine a break down on a conveyer belt. The conveyer belt was located at a height which could not be reached from the floor or by ladder and the fork lift was used because it had a cage which could be raised to a height so that the maintenance fitters could do their work. Normally a trades assistant would drive the fork lift, however on this particular afternoon there was no trade assistant available in the maintenance department. Mr Cox approached Mr Walker and told him not to drive the fork lift as it would result in a stop work meeting being called. Mr Walker advised Mr Walkinshaw that he would not drive the fork lift. Over the next hour the Applicant was approached on three occasions by Mr Walkinshaw and asked to drive the fork lift. Mr Walkinshaw also made some alternative suggestions to get around the problem. The Applicant refused to drive the fork lift. His reasons were in summary, it was not his job, it was the job of a trade assistant and all of this could be found in the Award. The Award governing the Applicant's employment is the "South Australian Meat Corporation Award 1992 (including a variation of the Award relating to maintenance workers)". On the final occasion that the Applicant was requested to drive the fork lift he was told his employment would be terminated if he refused. He did refuse and he was summarily dismissed. Mr Walker was also dismissed for refusing to drive the fork lift. The Applicant received a letter advising of the reasons for his termination later that day. Meat production at SAMCOR did not stop because of this break down. Sides of beef were pushed through manually. Production was to finish in any event on that day at 4:00 pm. Mr Barton gave evidence that the manual pushing through of the beef could be unsafe but he conceded in cross examination that it was not all that unusual for this to occur in any event. The Award is silent on whether the duties of a maintenance fitter include driving fork lifts. The only reference in the relevant part of the Award to fork lift driving provides for an allowance to be paid to trades assistants who are required to drive fork lifts. I think Mr Cox's assumption that therefore the maintenance fitters were not obliged to drive the fork lift is wrong. In any event it does appear from his own evidence that he did occasionally drive the fork lift in the course of his employment and he was trained by SAMCOR for that purpose. I therefore conclude that it was part of his duties as a matter of custom and practice on an occasional basis to perform the duties of a fork lift driver. Flowing from that I find that it was a lawful instruction to the Applicant to drive the fork lift. I also think in the circumstances that the request was reasonable. The Applicant has failed to follow a lawful and reasonable command. Prima facie the employer had a valid reason to terminate the applicant's employment on the basis his conduct (S.170 DE (1)). However it is necessary for me to consider whether any aspects of the termination of the Applicant were harsh, unjust and unreasonable and thereby render the termination unlawful in accordance with section 170 DE (2) of the Industrial Relations Act. He was an employee of eight years standing. He refused a duty which was not one of his usual duties. It was an occasional duty. The background to his refusal related to a dispute about wages and in my view it would have been appropriate for some alternative resolution process to be put in place by the employer. The Respondent argued that the Applicant should have taken steps to resolve the dispute following its correspondence dated 16th September 1994. The employer, in my view , also had obligations in that regard. It is to be noted that the events surrounding Mr Cox's dismissal took place in less than an hour and a half. In my view his refusal to perform duties did not go to the heart of the contract because the duty he refused to perform was something only occasionally required of him and did no more than inconvenience the employer on the day in question. I am of the view that the termination of this Applicant by the Respondent was harsh, unjust and unreasonable. The Applicant sought reinstatement and reinstatement is the primary remedy in this jurisdiction unless it is impracticable. Evidence in this regard was given by Mr Barton, Mr Walkinshaw and the Applicant. All of the evidence relating to whether the Applicant should be reinstated went to his conduct and personality. In addition I had the chance to observe the Applicant as a witness . I do not believe that a satisfactory relationship with his supervisors could be established if he were reinstated. On balance I find that it is impracticable to reinstate the Applicant. I now turn to the issue of compensation. In this matter the Applicant gave evidence that he had made some attempts to find alternative employment, however these attempts had not been successful. He did not impress me as someone who had made serious attempts to mitigate his loss. In fact he objected to being cross-examined in relation to this issue. Mr Walker, whose evidence also formed part of these proceedings (as a result of an order made by consent of both parties) was dismissed at the same time. He gave evidence that he had obtained casual work since the date that both he and the applicant were dismissed. The maximum compensation I could award in this matter would be $12,740.00. I take into account the Applicant's length of service, his age, the difficulty he faces in obtaining alternative employment but in addition I take into account Mr Walker's evidence of having been able to obtain casual work and that he was similarly qualified to the Applicant. I therefore award the Applicant the sum of $8,500.00 by way of compensation. I certify that this and the preceding 3 pages are a true copy of my reasons for judgment. DATE OF HEARING: 23rd & 24th January 1995 FOR THE APPLICANT: Mr J Watson FOR THE RESPONDENT: Mr R Manuel