Emil Aruma and Maxpak (Australasia) Pty Limited [1995] IRCA 153

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 2486 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N: EMIL ARUMA Applicant A N D MAXPAK (AUSTRALASIA) PTY LIMITED Respondent Reasons for Judgment (delivered ex tempore and revised from the transcript) 29 March 1995 PARKINSON JR This is my decision delivered ex tempore in the matter of Emil Aruma and Maxpak (Australasia) Pty Limited, matter number VI 2486 of 1994. The reasons for decision will be reduced from writing from the transcript of this oral decision, and a copy will be made available to the parties upon its publication. This is an application pursuant to section 170EA of the Industrial Relations Act in respect of the termination of the applicant's employment by the respondent. The applicant was employed as a storeman and packer by the respondent on 7 October 1994. He had immediately, prior to that time, been engaged for a short duration as a casual employee. His employment was terminated on 21 November 1994. The respondent contended that the applicant was the subject of a probationary period and therefore was excluded from the operation of the provisions of the Act by section 170CC and regulation 30B(1)(c). This probationary period was not a specified period in any agreement or document signed or sighted by the applicant. Whilst there is evidence of a job application form being completed by the applicant, this form refers to a probation period of unspecified duration. The evidence of the applicant was that he was informed by his supervisor that the probation period was to be four weeks. This evidence is contradicted by the applicant's supervisor, Mr Hendricksen. His evidence was that he informed the applicant that the probation period was to be three months. Mr Young, a director of the company, also gave evidence that he instructed that the employee be employed on a probation period of a minimum of three months. Mr Costello, a witness called on behalf of the applicant, gave evidence that in his presence the applicant was informed that he was employed on a full time basis. Whilst I am satisfied that the respondent did generally employ persons subject to a probationary or trial period, I am not satisfied that there is evidence of a consistent pattern in relation to the length of such periods. Further, in view of the conflict of evidence between the applicant and the respondent as to the period of probation specified, and the absence of any specified period in exhibit A2, which is the applicant's job application, I prefer the evidence of the applicant to that of the respondent's witnesses. I find that the probation period for which the applicant was employed was of four weeks duration. I further find that that term had expired well prior to the date of termination of the employment of the applicant. It should also be noted that having regard to the nature of the employment, its lack of seniority and its low wages, I would in any event have found that any period of probation greater than four weeks would have been unreasonable in the circumstances and thus not contemplated by section 170CC of the Industrial Relations Act. I turn now to consider the merits of the application. The respondent contends that the applicant's employment was terminated due to poor work performance during the course of his employment and his aggressive and threatening behaviour on the date of termination, when the issue of his continued employment was being discussed. The evidence of the respondent was that the applicant was tardy in the performance of his duties and failed to reach an acceptable level of performance in two time trials conducted on him on 11 and 20 October 1994. These time trials were not documented by the respondent in any way. The evidence of the respondent's witness Mr Hendricksen is that he, in conducting this trial, did not observe the applicant during the performance of his work in the allocated time period. The applicant was not informed of such a trial being conducted and I find that he was not informed after the trials had been conducted that they had occurred. The applicant was given no opportunity to respond to any allegation as to his work performance on those occasions. Mr Hendriksen's evidence was that in conducting these trials he had supervised them and that on both occasions Mr Costello had witnessed them. His evidence was further, that whilst documentation in the form of notes did exist at the time of the trials, they no longer existed. Mr Costello denied that he had witnessed these trials. He denied having any part or participation in them. His evidence was that he was requested to sign documentation to this effect and refused. His evidence was also that on 30 and 31 January 1995 he was asked to sign pre drafted statements, exhibits A4 and A5, regarding the applicant's employment pursuant to probationary periods and in relation to allegations of poor work performance against the applicant. Mr Costello's evidence was that he refused to sign such documents because they were not true. I accept the evidence of Mr Costello in these proceedings and I found him to be a forthright and reliable witness. The evidence of the applicant was that he had on a number of occasions raised with the respondent his terms and conditions of employment and in particular his hours of work and payment entitlements in respect of overtime. His evidence was that he was not paid overtime, despite it being worked. The respondent's evidence was that the applicant was tardy at lunch and tea breaks. This latter matter was never put to the applicant before being raised in today's proceedings. The evidence was that no time records were kept in relation to the employees of the respondent and there was no sign on or sign off book at the respondent's premises. The applicant says that it was his complaints about overtime payment and his refusal to work if he was not to be paid for overtime, which resulted in his termination of employment. The applicant's evidence was that he acknowledged he had had some difficulties completing all tasks set. This was because he was subject to interruption to those tasks by others directing him to perform different duties, or to prioritize differently. The applicant acknowledged in his evidence that he did have a view about the extent of the knowledge of his supervisor and that he did express this view in negative terms to Mr Young, a director of the respondent. Whilst I am satisfied that the applicant spoke frankly about his supervisor to Mr Young, a company director, I am of the view that this was an invited confidentiality. I am not satisfied that the applicant failed to perform his duties at an acceptable level. The evidence of co-workers indicates that subject to the limitations placed upon performance because of the various and simultaneous demands I have discussed above, the applicant performed his duties well. In particular, the entering of the data on the computer, about which the respondent complains, was an additional task to those of the applicant's full time duties and a task which was taken on by the applicant after little training and, I accept, as a temporary measure until a replacement was found for a staff member who had left. The aspect of this matter which concerns me is that the respondent had a practice of utilising formal warning documentation when it decided to warn and then terminate the employment of employees. Such warning documentation is exhibit D7 in the proceedings. This process was utilised in respect of persons accused of more serious defaults in work performance than this applicant. Yet it was not used by the respondent in the present case. The submission of the respondent was that this was because the respondent had not intended to terminate the applicant's employment on the day that it did, but that things got out of hand and as a result of the applicant's aggressive and threatening behaviour, Mr Young and Mr Hendriksen decision to dismiss him. I do not accept that this is the case. I accept the evidence of the applicant that he was loud, and angry, as a result of the respondent's attempting to procure his resignation. I accept that he refused to resign and that he said the respondent would have to sack him. I do not, however, accept that his conduct was such as to warrant a finding that he was aggressive or threatening of the respondent or any of the respondent's members of staff. Further, it should be noted that this conduct was put by the respondent as a basis for the decision to terminate the employment. I do not accept that this was the case. The applicant's angered reaction was due to the decision which had already been taken by the respondent to terminate the employment. There is no evidence of any substance before this court which provides any basis for the allegation that the applicant was threatening or aggressive, and I find he was not. I find that the applicant's employment was terminated by the respondent without valid reason, and that therefore the respondent contravened the provisions of section 170DE(1) and (2) of the Industrial Relations Act 1988. I further find that the applicant was denied procedural fairness by the respondent at the time of terminating his employment. The applicant seeks reinstatement to the employment and remuneration lost, or in the alternative compensation. There is no evidence before me to suggest that the reinstatement of the applicant to his employment would be impracticable in the terms suggested by section 170EE of the Industrial Relations Act. The applicant has expressed a desire to be reinstated and he is currently without employment. I have therefore decided to order the reinstatement of the applicant. I therefore order as follows: (1) that the applicant be reinstated by the respondent to the position he occupied immediately prior to the termination of his employment and that the reinstatement take effect on and from the date of this order; (2) that the respondent pay to the applicant the amount of remuneration lost by him between the date of the termination and the date of this order. I set that sum at $3200. I set it at that amount having regard to a period of eight weeks of earnings at the rate of $400 per week during the period of the termination. I have deducted that from a total amount of $6400 which I calculate to be lost earnings; (3) that the period between the date of the termination and the date of this order be treated as continuous employment of the applicant by the respondent for all purposes. (4) that the time for payment is twenty one days from the date of this order. They are the orders of the court in relation to this matter. I indicate to the parties that the formal orders of the court will be reduced to writing and a copy provided of those orders of the court to the parties, along with a copy of the written reasons for decision of the court. There are no other matters. These proceedings stand adjourned. I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson as recorded in the transcript and revised by the Judicial Registrar on 13 April 1995. Associate: Dated: 29 March 1995 Applicant in person Respondent in person Date of hearing: 29 March 1995 Date of judgment: 29 March 1995