CATCHWORDS INDUSTRIAL LAW - Termination of employment - Claim of unlawful termination - acting in the capacity of a representative of employees. Industrial Relations Act 1988, 170DF(1)(D), 170EDA(2) Barry Neil Cordwell v Interstate Drivers Services Pty Ltd vi-421/94 General Motors - Holden Pty Ltd v Bowling [1975] 8 ALR 197 KEITH DONELLY & CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v WILDWOOD FURNITURE PTY LTD No. VI-2620/94 Before: Millane JR Place: Melbourne Date: 26 April 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI- 2620/94 B E T W E E N: KEITH DONELLY & CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: WILDWOOD FURNITURE PTY LTD Respondent MILLANE JR MINUTES OF ORDER 26 April 1995 THE COURT ORDERS THAT: 1. In terminating the employment of the applicant, the respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988. That the respondent pay the applicant compensation in the sum of $4,000. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-2620/94 B E T W E E N: KEITH DONELLY & CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: WILDWOOD FURNITURE PTY LTD Respondent COURT: MILLANE JR PLACE: MELBOURNE DATE: 26 APRIL 1995 By an application made on 12 December 1994 pursuant to Division 3 Part VIA of the Industrial Relations Act 1988 (the Act) the applicant seeks compensation from the respondent alleging that his employment as a labourer and machinist was unlawfully terminated on 29 November 1994. Apart from matters of substantive and procedural fairness the applicant relies on an alleged breach of S170 DF(1)(d) of the Act. He contends that the reason or one of the reasons for terminating his employment was that he acted in the capacity of a representative of the respondent's employees. The corporate respondent was represented at the hearing by one of its directors, Paul Frederick Fraser (Fraser) who, as a non-lawyer devoted considerable thought and energy to the task of calling evidence, cross-examining witnesses and making submissions to the Court, subject to the constraints imposed by the rules of evidence. Inevitably, because of his inexperience and lack of legal training, Fraser, in presenting the respondent's case, strayed from the narrow path of relevant and admissible evidence into areas of inadmissible evidence such as hearsay evidence and attempted to give and explain evidence from the bar table. Mr Holding, representing the applicant, on numerous occasions, as he was entitled to do, objected expressing concern because of the tendency of the respondent to deviate from strict adherence to the rules of evidence. His job was to protect his client's interests and he did that admirably however, whatever detriment he feared because of the respondent's unstructured and untutored approach to the Court process was more than outweighed by the unguarded concessions made by the respondent in the running of its case not the least of which was that there was probably some substantive and procedural unfairness when the applicant's employment was terminated because the respondent was unfamiliar with and unsure of the requirements of the Act. Moreover, it was ultimately accepted by the respondent that to discharge its burden of proof and to avoid any adverse inference being drawn because of its failure to call compellable witnesses it needed to adduce evidence to prove the reasons given for the termination of the applicant's employment and its allegations vis-a-vis the applicant's performance and conduct at or around the date of termination. I am of the view that in cases where a party is not represented the Court is obliged where appropriate to assist the party in ensuring that all relevant evidence is before the Court and that may include assisting the party in framing questions for witnesses as well as exercising any discretionary powers relating to the rules of evidence (see for example Order 33 of the Industrial Relations Court Rules). The following witnesses were called by: (a) the applicant (i) The applicant; (ii) Joe Patti, an organiser with the furniture division of the CFMEU; (iii) Robert John McCauley, a former employee of the respondent; and (b) by the respondent (i) Alan Thomas Rieusset, a Maintenance Fitter employed by the respondent; (ii) Frank Belay, a supervisor employed by the respondent; (iii) Jason Andrew Terhaar, a machinist employed by the respondent; (iv) Paul Frederick Fraser, a Director of the Respondent. THE FACTS Between 12 May 1994 and 29 November 1994 the applicant was employed as a labourer/machinist at the respondent's furniture factory, receiving a gross income of $15,429.74, which averages out at $541.39 gross per week inclusive of overtime. The applicant's job involved feeding pieces of timber into a machine which timber was collected at the other end of the machine by another employee. The applicant contends that he was initially shown how to use the machine but did not receive any training as such because the machine and the process involved were not complex. On a date after he was employed and prior to 27 September 1994 the applicant was nominated and elected Shop Steward unopposed. It was not contested that prior to May 1994 the respondent's work shop had not been unionised for some twenty nine and a half years of its operations. With the advent of enterprising bargaining, according to Joe Patti (Patti) a Union Organiser from the CFEMU, the union was contacted by an employee of the respondent when the employees became involved in discussions with the respondent concerning workplace conditions and enterprise bargaining. Fraser quite candidly admitted, both on oath and at the bar table that the respondent preferred a non-unionised work shop because the company had operated successfully for many years without one and, further, the company was in favour of voluntary unionism. Notwithstanding these views Fraser alleged that the respondent was not opposed to its employees being members of the union nor did it victimise any of its employees, including the applicant, because they were members of the union. Indeed, it was conceded by Patti that after "some persuasion" the respondent and the union had resolved some workplace issues and, he was not able to point to evidence of victimisation of any of the other employees who had joined the union except the applicant. Despite the discretion shown by Patti in using the word "persuasion" the setting between May 1994 and November 1994 when the applicant's employment was terminated was one where there was a high level of union activity in the workplace and in the Australian Industrial Relations Commission (see the documents contained in Exhibit A1) in an effort to, amongst other things, negotiate an enterprise agreement on behalf of the respondent's employees. Alan Thomas Rieusset (Rieusset), a Maintenance Fitter employed by the respondent from October 1994 was called by the respondent to give evidence and referred to "a lot of union unrest and a lot of trouble between workers" with the union coming to the workplace "three to four times per week and creating a lot of unrest". During the course of the applicant's rather short period of employment there were only two occasions upon which he was given formal warnings, on or about 27 September 1994 and 29 November 1994. On both occasions his employment was terminated, the later occasion being the genesis of this application. It is contended by the applicant that it is no coincidence that on each of the occasions the applicant was warned and had his employment terminated he, on the same day had been engaged in performing his duties as a shop steward; that is to say attending to the interests of fellow employees. Robert John McCauley (McCauley) and another employee referred to as David, both of whom subsequently had their employment terminated by the respondent were on each of the respective dates upon which the applicant was terminated involved in some activity with the respondent leading to intervention by the applicant as shop steward. It is not contested that on 27 September 1994 McCauley suffered a significant cut to his thumb whilst using a chisel to remove some furniture edging. At the time of the injury the respondent's management were in a meeting and, although Jason Andrew Terhaar (Terhaar) a trade wood machinist employed by the respondent gave evidence that he had first aid qualifications, the evidence of all the employees called indicates that there was no nominated first aid attendant known to every employee or any clear system as to what should occur if there was a workplace injury. McCauley was assisted by other employees in cleaning and bandaging the injured thumb. However, at the same time Frank Belay (Belay) the supervisor came to see McCauley and told him to sit down and relax. The applicant also attended to McCauley and, because of the amount of blood and the depth of the wound, told McCauley to go home and see a doctor, offering also to "clock off" for McCauley. McCauley gave evidence that he complied with the applicant's recommendation, was driven to a medical clinic by another employee and received a medical certificate until 10 October 1994, before which date McCauley claimed his employment was terminated by the respondent. It appears from the evidence that Belay the supervisor was unhappy because the applicant had countermanded his instruction to the injured worker to stay put and, in Belay's view, it was not appropriate for the applicant to clock off for another worker. This led to a heated exchange where the applicant and Belay swore at each other. Insofar as it mattered then or now in the context of the proceeding the weight of the evidence favoured the view that in the workplace swearing was not an uncommon occurrence. According to the applicant after he joined the union and was appointed shop steward Fraser was "always on my back", the Production Manager known as Pundi was always watching him, he was shifted from one machine to another, he was given sweeping duties and Belay was constantly "looking over my shoulder". It would be fair to say that on the evidence of both the applicant and Belay the relationship between the two was strained. On the afternoon of the injury to McCauley's finger there was a further dispute between the applicant and Belay because Belay attempted to again show the applicant how to operate what was described as a "simple" machine and accused the applicant of "going slow" in operating the machine. This appears to have led to further exchanges between the two men with Belay terminating the applicant's employment and telling him to leave immediately. In giving his evidence Fraser claims that the applicant "threatened to get him" as the applicant left the respondent's factory having been summarily dismissed by Belay. This allegation as with many other allegations was never put to the applicant in cross-examination. The upshot of the abovementioned incident was that the union attended the respondent's factory seeking reinstatement and threatening to instigate unlawful termination proceedings against the respondent. The respondent was at pains to explain to the Court that it was the threat that prompted it to reinstate the applicant shortly thereafter and not any acknowledgement of wrongdoing on its part. After reinstating the applicant the respondent's Production Manager, Pundi issued the first written warning (see Exhibit A1) as follows: "Keith it is a condition of your employment that you take instructions from Supervisors and Leading hands and do as you are instructed. On Tuesday 27/9/94 you were instructed on how to perform an operation on a machine, and did not do as requested. When re-instructed a short time later you did as instructed in a slow motion and then told the supervisor Frank Belay to "piss off" and became abusive." The warning notice was never signed by the applicant. It is not contended that the applicant received any opportunity to explain the incident referred to in the warning notice, the events surrounding McCauley's injury or that the applicant received any direct counselling before or after the preparation of the warning notice. There were no exchanges of any moment between the applicant and the respondent's management or his supervisors until 29 November 1994; although there was clearly a great deal happening between the union and the employer both before the Australian Industrial Relations Commission and in the workplace. Rieusset alleges that during lunch breaks because of the unrest at the workplace the employees "fired" questions at the applicant shop steward. During one of these breaks and prior to 29 November 1994 Rieusset alleges that, and the substance of that allegation was not contested, the applicant said in response to questions from other employees, "I don't have to call the union, the union will come out and stuff this place anyway". Rieusset understood this comment to mean that the applicant did not have to do anything because the union would "bring the company to its knees". Apart from the abovementioned comment overheard by Rieusset it was not contested that he also heard the applicant state that he was intending to leave his employment at Christmas and go to Adelaide. Rieusset spoke to Fraser on the morning of 29 November 1994 repeating the comments he had heard the applicant make in the respondent's yard during the lunch break. On 26 November 1994 it is alleged by both Fraser and Belay that Belay approached Fraser claiming that the applicant was intimidating him by trying to run over Belay's toes with a lift truck and putting his elbow out in Belay's direction. Belay told Fraser he would "flatten" the applicant if the applicant made physical contact with Belay. Fraser prepared what was called a non-conformance report on the same date which recorded that "Keith Donelly going out of his way to annoy Frank Belay problem likely to arise if it continues". The subject matter of the complaint was not put to the applicant in cross-examination. According to Fraser the report from Frank Belay caused him some concern and he considered the matter over the weekend and on the morning of 29 November 1994 told the applicant that he would be given a written warning that day because he was concerned about the applicant's performance. There is no suggestion that this discussion was one where Belay's allegations were detailed and the applicant was given any opportunity to respond to or explain the matters alleged. On the same day a written warning was given to another employee David placing his employment in jeopardy. As shop steward the applicant left a message for Patti who rang the respondent's office number. The applicant was called to the office to take Patti's telephone call. Whilst the applicant was speaking to Patti about the warning given to David, Fraser remained in the office, his presence allegedly inhibiting a free discussion between the shop steward and the union organiser as to the other employee's predicament. On the afternoon of 29 November 1994 and following the telephone call between Patti and the applicant, the applicant was given a second warning notice which Fraser had converted to a written notice of termination. This was because according to Fraser during the course of the day and after his initial comments to the applicant he had discussions with Belay, Marni Young the receptionist and payroll clerk, Rieusset and Pundi, all of whom expressed concern about continuing to work with the applicant. The final notice was from Pundi to the applicant and stated: "Keith, you are continually being disruptive within the workplace. You also appear to be going out of your way to annoy Frank Belay (The Senior Supervisor). It has also come to my attention that you have indicated to fellow workers that you will be leaving at Christmas and intend to do as much damage to the company as you possibly can by involving the Union and causing trouble. I have also had complaints from the receptionist that you have been harassing her and spreading rumours about her and other staff members. In view of the above I consider it prudent to terminate your employment at the end of work today 29/11/94." It is not suggested that there was any investigation or meaningful discussion between the applicant, Fraser, Pundi or any of the supervisory staff about each of the alleged complaints made against the applicant in the notice of termination. Fraser did mention some of the matters after the applicant completed his telephone call with Patti and each matter was then and continues to be denied by the applicant. In cross-examination, amongst other things, it was suggested to the applicant that he had harassed the receptionist and payroll clerk, Marni Young, by verbally abusing her when she failed to put a call through to him and pay the payroll payment when he wanted it. Other than to suggest that the applicant had spread rumours about Marni Young and another employee Terhaar which suggestion was denied, no specific allegation of sexual harassment was put to the applicant nor was Marni Young called to give evidence detailing her complaint if any to Fraser. Because the respondent has the burden of proving a valid reason or reasons for terminating the applicant's employment it could not discharge that burden in relation to the allegations of harassment and the alleged spreading of rumours without calling Marni Young, who is a compellable witness, nor could it rely on hearsay evidence of a statement made by her to Fraser. At best Fraser was only able to give evidence that a complaint was made to him on 29 November 1994 and his concern there may be a claim made against the company arising out of the complaint received was a motivating factor in deciding to terminate the applicant's employment. The statement in the notice that the applicant intended "to do as much damage to the company as you possibly can by involving the Union and causing trouble" appears to be a convolution of the comments heard by Rieusset and repeated to Fraser on the morning of 29 November 1994. It confuses what Rieusset heard by suggesting that the applicant intended to cause damage to the company by involving the union whereas on any view of Rieusset's report the applicant was clearly saying that he did not need to take any steps because the union would "come out and stuff this place anyway". Patti gave evidence of being told by Fraser that the applicant was causing union problems. In response Patti explained to Fraser that it was part of the shop steward's function to look into members problems as well as ask payroll clerks about pays and overtime. FINDINGS Whilst I accept that the evidence supports Fraser's assertion that the respondent did not actively discourage its employees from or thwart them in joining the union, the weight of the evidence favours the view that one of the reasons for terminating the applicant's employment on 29 November 1994 was because of his actions as a shop steward. Fraser gave evidence that he regarded the applicant's election as a shop steward as "a joke". This view seems to have been formed because, at that time he believed that the applicant was not lucid and appeared vague. There were a number of attempts to attack the applicant's character and credibility, none of which was supported by admissible and probative evidence. Fraser also alluded to an incident in May 1994 when the applicant had obtained a medical certificate stating that the applicant was suffering from bronchitis. It was reported to Fraser that the applicant was seen in a shopping mall on the day of the applicant's absence. In Fraser's view if the applicant had bronchitis then he should have been in bed. Fraser believed the doctor giving the medical certificate did not do this in good faith and therefore in Fraser's view the applicant's medical certificate was "fraudulent". Fraser's non expert opinion and unsubstantiated beliefs are not relevant and admissable evidence of any alleged misconduct on the part of the applicant during the currency of his employment. However these opinions and beliefs along with the respondent's refusal to accept that the applicant had an elected role as a shop steward clearly demonstrate a jaundiced attitude toward the applicant particularly in his role as shop steward at the time when unionism was new in the work place and there was considerable union activity and unrest related to attempts to negotiate work place conditions and an enterprise agreement. In terminating the applicant's employment the respondent specifically relied on a convolution of a report made to it by an employee on the morning of 29 November 1994 concerning the applicant's comments to fellow workers who had addressed questions to the applicant in his capacity as a shop steward and in so doing provides a clear causal link between the reasons given for terminating the applicant's employment and the applicant acting as a representative of the respondent's employees. I have already had occasion to consider the implications of an application made in reliance on S170DF(1)(b) and (d) of the Act in my decision in Barry Neil Cordwell v Interstate Drivers Services Pty Ltd vi-421/94. Some of the observations made in that case are worth repeating here - "Section 170DF(1)(b)(d) has much in common with the prohibition contained in S334 of the Act against victimisation of employees by their employers because of their participation in union activities. The last mentioned section involves criminal liability with proof being beyond reasonable doubt; although the employer still carried the burden of proof in showing that its conduct was not motivated by a prohibited reason. In General Motors - Holden Pty Ltd v Bowling [1975] 8 ALR 197 the prima facie inference was that the shop steward's position as a union delegate had motivated his dismissal. There was evidence that the South Australian management of the company had recommended the employee's dismissal because of poor work performance. Nevertheless, the decision to dismiss was taken by two Melbourne directors neither of whom gave evidence. There was evidence that the shop steward had organised a work-to-rule campaign and had publicly criticised the employer's attitude to its workers. Creighton and Stewert, the authors of "Labour Law and Introduction" (second Edition, the Federation Press 1994) argue at page 251 that Bowling's case suggests that, once union officers or delegates attract a high profile through the performance of their functions and thereby cause difficulties for their employers, this may give rise to a presumption that prejudicial action taken against them by their employers is connected with their status within the union." The case at hand is a much clearer illustration of discriminatory action against a shop steward because the statement contained in the written termination notice makes an explicit reference to union activities as a reason for terminating his employment. S170EDA(2) of the Act creates a rebuttable presumption that there has been a contravention of S170DF(1) once the application made alleges that there was a contravention of S170DF(1). The evidence called by the respondent on this question fails to displace that presumption and thereby renders the termination unlawful. Putting to one side the matters raised by S170DF(1)(d) the performance and conduct related issues raised by the respondent in terminating the applicant's employment were never the subject of any meaningful investigation. They were not sufficiently detailed for the applicant to respond to and there was no opportunity given to the applicant to defend himself. The respondent has already conceded that there was a lack of substantive and procedural fairness in the termination process. This concession in itself confirms breaches of the provisions of the Act and gives rise to an entitlement to a remedy irrespective of any entitlement arising pursuant to S170DF(1)(d). REMEDIES The respondent's operation employs approximately 50 employees at the one location in West Heidelberg. The negotiations between the respondent and the union concerning work place conditions and enterprise bargaining appears to be on-going. There is clearly significant personal antagonism between management, the supervisory staff and the applicant with neither party seeking reinstatement as a remedy. On balance I am satisfied that these matters make it impracticable to reinstate the applicant even though he has been unable to find gainful employment since the date of termination. The applicant is in receipt of a job search allowance of $340 per fortnight. Taking into account the applicant's receipt of a job search allowance, the long period of unemployment, his modest job skills and the gross rate of pay received by him during the currency of his employment I have assessed appropriate compensation at $4,000. The orders of the Court are: 1. That in terminating the employment of the applicant, the respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988. 2. That the respondent pay the applicant compensation in the sum of $4,000. I certify that this and the preceding 11 pages are a true copy of the Reasons for Judgment of Judicial Registrar Millane. Associate : Date : Appearances: For the Applicant : Mr Peter Holding The Respondent : Mr Paul Fraser, Director Date of Hearing : 10 and 11 April 1995 Judgment : 26 April 1995