IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 1698 of 94 VICTORIA DISTRICT REGISTRY B E T W E E N: COLIN WILLIAM HOWLETT & AWU-FIME AMALGAMATED UNION Applicant A N D NORMET INDUSTRIES NOMINEES PTY LIMITED trading as NORSTAR STEEL RECYCLERS Respondent Reasons for Judgment 1 May 1995 PARKINSON JR The applicant was employed on 30 November 1992 by the respondent at its scrap metal yard at Laverton North. He was initially employed as a picker on the conveyor belt line and then was promoted to position of fork-lift driver and front end loader driver and then subsequently to the position of crane driver. He was engaged as a crane driver at the time of the termination of his employment on 12 September 1994. The applicant is a qualified electrician, however he has no qualifications and holds no certificate or licence in relation to crane driving or fork-lift driving. The circumstances of the termination arose out of an incident on 19 May 1994 when, in the course of driving the crane, the applicant caused the load being shifted to come into contact with another employee. According to an accident report completed at the time (Exhibit K2), the other employee suffered bruising to his left arm. The applicant's employment was not terminated at the time of the incident, but he was informed at that time that he ought look for other employment, and on 12 August 1994 he was informed that should there be a downturn in work he would be the first person to be put off. On 12 September 1994 the applicant was informed that there had been a slow down in work and that his employment was being terminated. He was given two weeks payment in lieu of notice. The incident of 19 May 1994 The respondent's evidence was that at the time of the incident it concluded from the circumstances of the incident that the applicant had deliberately caused the load to come into contact with the other employee. The applicant says that the incident was an accident. It is appropriate to briefly outline the working arrangements at the yard. The yard processes scrap metal which is purchased from suppliers who deliver loads of various types and lengths. The various types of scrap are placed on piles throughout the yard and are selected from the piles by the crane driver for processing in the shear. They are placed in the shear by the crane driver. The shear is operated by an employee located in a cabin at the top of the shear. The arm of the crane swings in the direction of the cabin and, it was acknowledged by all witnesses, at times comes into contact with the cabin itself. The circumstances of this incident however was that the shear employee, Mr Gagalevski was struck by the load of steel when he left the shear's cabin and walked out onto the shear. His evidence was that he did this to try to attract the attention of the applicant in order to advise him to leave various pieces of metal and select others. The applicant says that Mr Gagalevski frequently left the cabin and threw stones at the crane cabin to attract the crane driver's attention. The applicant says that on this occasion he yelled at Mr Gagalevski to go back inside the cabin. In this instance he says that he instinctively turned from the anticipated missile and accidentally altered the direction of the crane arm such that a part of the load of scrap reinforcing wire it was carrying connected with Mr Gagalevski. Mr Gagalevski's evidence was that he frequently needed to leave the shear's cabin to catch the attention of the crane drivers, but he denied that he was in this instance throwing a stone, or bending down, saying that he was merely trying to catch the applicant's attention. His evidence is that the applicant did yell something out at him after he left the cabin, but he was unable to hear what it was. The evidence was that the siren and radio facilities did not operate to allow for adequate communication between the crane driver and the shear's cabin, without the frequent need for the shear employee to leave the relative although limited safety of the cabin and stand out exposed to the crane. The evidence of both Mr Gagalevski and the applicant was that it was difficult for the crane drivers to judge the distance between the cabin and the loading area on the shear. Mr Gaglevski's evidence was that he had experienced the cabin being hit by the crane drivers on many occasions. There is no evidence to suggest that the applicant had a greater propensity to hit the shear's cabin than any other crane driver. The respondent's case was that the incident was a deliberate act on the part of the applicant, and that if not deliberate then was so negligent as to constitute gross misconduct. In either case, it said that it was entitled to summarily dismiss the applicant. The applicant says that the incident was an accident. Valid Reason - Deliberate Conduct The first issue for consideration in this matter is whether the conduct of the applicant was deliberate or accidental. Had the conduct been deliberate then, in my view, notwithstanding any absence of training, supervision and licensing, the employer would have a valid reason to terminate the employment summarily. Having regard to the circumstances of the incident and in particular the versions of the events given by both parties to the incident, I am not satisfied that there is sufficient evidence to suggest that the applicant's conduct was deliberate. There is no suggestion in the evidence of Mr Gagalevski that it was deliberate. Whilst the evidence of the applicant was that Mr Gagalevski was angry when he was out of the cabin on the shear, the evidence of Mr Gagalevski is to the contrary, and he further denied that there had been a dispute between them prior to the incident on that day. On the respondent witness's own version of the events there was no hostility between the parties, and there is no basis for the court to conclude that the applicant would have been in any way inclined to deliberately act so as to hit Mr Gagalevski with the crane load. Further, whilst the incident report, being a contemporaneous record, contains a consideration of the issue of intention, it records no allegation of this nature and expresses clearly and unambiguously that it was not clear whether the incident was deliberate or not (Exhibit K2). The information relied upon to found the allegation that the conduct was deliberate were conclusions drawn from versions of the event given to a foreman, Mr Gauci, who was not present at the time of the incident. Whilst Mr Gauci's evidence was that he was told by Mr Gagalevski that the incident was deliberate, no such evidence was forthcoming from Mr Gagalevski during the course of these proceedings. His evidence as to the incident was that he was unable to say whether he was hit on purpose or not. I have also taken into account the evidence as to the nature of the load being carried by the crane, which was bulky and difficult to handle in any circumstances. I accept the applicant's evidence that the load was one of reinforcing wire, bundled scrappily and of lengths between 20 to 30 metres. Whilst the respondent disputed the applicant's description of the load, no inspection was made in this regard at the time of the incident and Mr Gagalevski, whilst to some extent taking issue with the term 'reinforcing wire', was not in a position to disagree with the applicant's description of the load. In view of the nature of the load it is not unlikely that such an incident could occur accidentally. Having regard to the evidence, including the above matters, I am not satisfied that the respondent had a valid reason for the termination of the applicant's employment based upon any deliberate act on the part of the applicant on 19 May 1994. Accident - Gross Misconduct. The evidence was that whilst he had been nominally trained in the use of the crane by an unlicensed crane driver, the applicant held only a trainee certificate and had no other qualifications to work unsupervised. There is clear evidence of a lack of suitable training and qualification requirements at the workplace, together with what appears to be a work environment where the inability to communicate with other workers safely is fraught with danger to employees. The respondent takes no responsibility for the incident and recognised no failure in its own obligations to provide a safe system of work and adequate training and accreditation for employees. Its position in these proceedings was to abrogate all responsibility for such matters to its employees, and in this case to the applicant. It relies upon the conduct of the applicant on the 19 May 1994 as constituting gross misconduct warranting summary dismissal, yet it did not act on that day or soon afterwards. Whilst the respondent's evidence was that the applicant remained employed only out of regard to his personal circumstances at the time, nevertheless it did not apparently take the view that the applicant was not sufficiently skilled to continue to operate the crane, or that he ought be removed from so doing. He continued to perform the work of crane driver until the date of the termination on 12 September 1994. I do not accept that the incident, not being deliberate, was one which, having regard to the various failings of all parties to these proceedings, should be left to lie at the feet of the applicant. I do not accept that the conduct of the applicant on this occasion was such as to constitute gross misconduct. I do not accept that the respondent had a valid reason relating to work performance for the termination of the applicant at the date of the termination on 12 September 1994. I find further that any termination of employment based upon the incident of 19 May 1994 was harsh, unjust and unreasonable for the reasons set out above. Operational Requirements - Redundancy - Selection Criteria applied. In determining this issue I turn to consider the issue of whether there was at the date of the termination a valid reason having regard to the operational requirements of the respondent. I do so in response to any submission that the applicant was not in the ultimate sense terminated for poor work performance or misconduct, but rather because he had been selected on the basis of the 19 May incident as being the person to go should there be a requirement that employees be retrenched. The evidence of Mr Barnes was that in negotiations on 15 August 1994 the respondent's manager Mr Fischer had wanted to "finish him (the applicant) up on Friday". His evidence was that he negotiated the continuance of the applicant's employment to when work dropped off. I am not satisfied that the termination of the employment was based upon the operational requirements of the business. I am satisfied that the reason for the termination of the applicant's employment was the incident of the 19 May 1994. There was not sufficient evidence before the court which would form a basis for finding that there was at 12 September 1994 a bona fide operational requirement that the employment of the applicant be terminated. Nor on the material before me could it be said that there was a redundancy requirement. Further, the evidence reveals that the fairness of selecting the applicant as being "the first to go" should there be a need for redundancy was contested by the applicant shortly after the 15 August meeting by letter (Exhibit L1). No response was made to that letter and nothing further occurred until the termination on 12 September. S170DE(2) and Hearing - S170DC(1) The incident relied upon occurred on the 19 May 1994. Whatever may have been the reason, no action was taken by the respondent until 12 September, 1994. On that date there was no discussion with the applicant as to the reasons why the termination was being effected nor was there any consideration of alternatives to the termination of the applicant's employment. I find therefore that the termination was in any event harsh, unjust and unreasonable for procedural reasons. I turn now to consider the question of remedy in this matter. Remedy - S170EE The applicant has since the date of the termination of the employment found alternative permanent employment in his trade as a plumber and gasfitter. On this basis it was submitted by the applicant's counsel that having regard to S170EE(1) and (3) an order for reinstatement would be impracticable. I accept that in most circumstances where alternative employment satisfactory to the applicant has been obtained reinstatement would be impracticable. In this matter I am satisfied that this is the case. I turn therefore to consider the issue of compensation pursuant to S170EE (3). The applicant commenced his new employment on 1 February 1995. As there are no circumstances warranting any consideration beyond that date I confine my consideration of appropriate compensation to the period 12 September 1994 to 1 February 1995, that is a period of 20 weeks from the date of the termination. The evidence was that the applicant remained unemployed during that period. He received two weeks pay in lieu of notice upon termination and was paid for all outstanding entitlements. Whilst the pay slips of the applicant identified some overtime hours worked in the weeks prior to the termination of the employment, I do not propose to take into account future overtime possibilities in the calculation of the amount of compensation in this matter. This is because of the evidence in the proceedings that there was an anticipated downturn in work. I have therefore determined the amount of compensation by reference to the applicant's base rate of pay for the period of the unemployment, less various deductions. The applicant's base rate of pay was $11.053 per hour. He received $420.00 for a 38 hours ordinary time week. This amounts to $8,400 from which I propose to deduct an amount of $840.00 consequent upon notice paid. The total amount of compensation which will be ordered is $ 7,560.00. The orders of the court will be: 1. That the respondent pay to the applicant the amount of $7,560.00 in compensation. 2. That payment be made within 21 days of the date of this order. I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson. Associate: Dated: 1 May 1995 Solicitors for the applicant: Maurice Blackburn & Co Counsel appearing for the applicant: Mr A Lawrence Solicitors for the respondent: Price Brent Solicitor appearing for the respondent:Mr G Katz Dates of hearing: 3 and 30 March 1995 Date of judgment: 1 May 1995