Catchwords Industrial Law - Termination of Employment - unlawful termination - assistant funeral director - where the assistant had responsibility for major undertaking - single instance negligence by employee - misconduct of employee - traumatic consequences Industrial Relations Act 1988, S 160DB, S 170DE Baster V London & County Printing Works (1989) 1 QB 901 Bell Bros Pty Ltd -v- Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1969) 46 W.A. I.G. 1116 Brian Donald Sprigg -v- Arthur J Purslowe & Co Pty Ltd No WI 1052 of 1995 Before:Tomlinson JR Place: Perth Date: 5 May 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA matter no WI 1042 of 1995 DISTRICT REGISTRY BETWEEN: Brian Donald SPRIGG Applicant AND: Arthur J Purslowe & Co Pty Ltd Respondent MINUTES OF ORDER THE COURT ORDERS THAT: The Respondent is to pay to the Applicant the sum of eight thousand dollars within 21 days of the date of this judgement. 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 WESTERN AUSTRALIA matter no WI 1042 of 1995 DISTRICT REGISTRY BETWEEN: Brian Donald SPRIGG Applicant AND: Arthur J Purslowe & Co Pty Ltd Respondent BEFORE: Tomlinson JR DATE OF HEARING:3 and 4 May 1995 PLACE OF HEARING: Perth DATE OF JUDGEMENT: 5 May 1995 REASONS FOR DECISION This matter was heard on 3 and 4 May 1995 in Western Australia. This is an application under section 170EA of the Industrial Relations Act ("the Act") made by Brian Donald Sprigg against his former employer the respondent. The application stated the applicant saught reinstatement and compensation however at the end of the hearing that was amended so that the applicant only sought compensation. On behalf of the applicant it was alleged that Section 170DB and section 170DE of the Act were breached and that accordingly the termination of the applicant the employee was unjust. Section 170DB states that an employer must not terminate an employee's employment unless: (a) the employee has been given either the period of notice required by subsection (2), or compensation instead of notice; or (b) the employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to continue the employment during the notice period. Section 170DB(2) sets out the table to be used when working out the required period of notice. Section 170DE(1) of the Act states that an employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct based on the operational requirements of the undertaking, establishment or service. Section 170DE(2) of the Act provides that a reason is not valid if, having regard to the employee's capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. The industry involved in this application is the undertaking industry and in order to protect families of deceased persons the symbols "X" and "Y" have been used throughout these proceedings. Application was made by a member of the press to record electronically these proceedings and that application was refused. The Court noted that consideration would be given to whether or not contempt of Court had occurred if an inadvertent reference to any fact or statement was published that could lead to identification of the families of the deceased persons. The Court had evidence placed before it that the applicant was 50 years old and had first worked for a funeral director in 1985 for 2 years. From then until June 1993 the applicant had had various jobs from time to time had been actively involved in overseas missionary work. In June 1993 the applicant first worked for the respondent on a casual basis as a Funeral Director's Assistant and that from 14 November 1994 had been a permanent employee as an Assistant with the respondent. The applicant told the Court that at least 60% of his work involved driving - either the limousine or the hearse - together with the cleaning and washing of those vehicles. The applicant told the Court that the preparation of bodies for funeral services was not one of his duties but that on very few occasions did he perform this task. The applicant did state however that he was often required to assist to lift bodies and the Court was told that this was a 2 person task, as was dressing of the bodies prior to funeral services. The applicant stated that on occasion he also trimmed caskets with drapes for funerals. The applicant stated that every body brought to the respondent premises is identified or "tagged" by the respondent and that bodies were transferred to the temperature controlled room bearing that tag. In recounting his duties the applicant advised the Court the North Perth office of the respondent sent out the work rosters and that if he had some time to spare, for example a half day or so, he would use his own initiative as to what needed doing around the premises and to attend to it. The applicant detailed the procedures put into place by the respondent when preparing a body for a funeral and it was stressed that identification was vital so that the body was accorded the correct treatment. However the applicant was firmly of the view that the primary responsibility for checking the identity of the body being prepared fell to the person who was undertaking that task, and that as an assistant in a particular task the applicant would not double check the work of his superior and question the identity of the body the subject if attention. The Court heard that a guide book had in fact been prepared by the manager of the respondent but there was no evidence that that manual was ever supplied to the applicant nor used in any way in the day to day running of the applicant's business. On Thursday 12 January 1995 the applicant told the Court he prepared what he believed to be the coffin for the funeral of "X" for the following day and washed the limousine also for the following day. The incidents the subject of this application commenced on Friday 13 January 1995 and the Court heard evidence from the applicant that on that day the applicant spent most of his day driving - as there was a funeral in the morning at Karakatta and at Penaroo in the afternoon. In his affirmed evidence dated 13 March 1995 the applicant stated he arrived at Victoria Park Branch for the respondent to work at 8:00 am and shortly thereafter travelled to the Midland branch where he worked for the rest of the day. The applicant told the Court that whilst at the Victoria Park Branch and that before he left for Midland he assisted a Mr Tilbury with a body that Mr Tilbury was delivering to the mortuary room. The applicant noticed the body had purged itself and that it was dressed in a suit and that the suit had become soiled. The evidence of the applicant was that prior to his departure to Midland he left a message with the secretary that the body brought needed attention. At 5:30 pm on 13 January 1995 the applicant returned to the Victoria Park branch of the respondent, entered the mortuary room and met with the Victoria Park manager, Mr John Tidman. The Court heard evidence that the Victoria Park branch consists of several areas and that there is a reception and lounge area, a chapel where religious services are conducted, a garage area, a mortuary room where coffins are prepared, and that leading off that room there is the temperature controlled room where bodies awaiting funerals are stored on trays. At the time the applicant entered the mortuary room he was wearing his driving uniform and he stated that Mr Tidman was preparing a casket. The applicant stated that it was the same coffin upon which he had been working the previous day. The applicant stated he then proceeded into the change room, changed his clothing, checked Monday's roster, and then went to the mortuary to help Mr Tidman "prepare the body". It is clear that the applicant was of the view that he was assisting to prepare the body that was the subject of funeral cremation on Monday. The applicant stated when Mr Tidman discovered the body had purged itself Mr Tidman said "we should remove the clothing and have drycleaned so he could obtain them first thing on Monday morning." In his affirmed statement dated 6 April 1995 the applicant stated that at the time in question he went into the temperature controlled room with Mr Tidman to help him carry the body to the mortuary table "for final preparation" and that at no stage did Mr Tidman indicate that the body which had purged itself was not the body scheduled for cremation on Monday 16 January 1995. The applicant stated that at the time Mr Tidman stated that they should remove the clothing and that the following Saturday, he would come in and have the clothing dry cleaned so he could obtain them first thing on Monday morning. In oral evidence the applicant denied that Mr Tidman on the Friday evening stated to him that part of his duties for Monday would be to prepare the body for the funeral on Monday. The applicant stated that on Monday 16 January 1995 he arrived for work and was instructed by Mr Tidman together with Ms Jodi Gosztyla-Pitchers to dress the body in the clothes that had been drycleaned at the instance of Mr Tidman. The applicant obtained the body from the temperature controlled room where it had remained and from where it had been left on the Friday evening and wheeled to the mortuary room. The body was placed in the coffin by the applicant and Ms Jodi Gosztyla-Pitchers that Mr Tidman had been working on the previous Friday. It appears that the wrong body was placed in the wrong coffin which led to the wrong body being cremated on Monday 16 January 1995. In fact that body which was cremated should have been buried by way of funeral service the next day Tuesday 17 January 1995. The incorrect cremation took place on Monday 16 January 1995 and the applicant stated that the manager telephoned him at home that night and told him to be in the office the following day at 8:00 am. At 8:10 am the respondent interviewed him and told him he would probably lose his job and then later that day at approximately 10:00 am Mr Mark Purslowe came to the Victoria Park branch and told him that his employment was terminated. The Court heard evidence from Robert John Tidman who stated that he was the manager of the Victoria Park branch of the respondent Funeral Home and that he had been employed as such for some 5 years. Mr Tidman is a qualified embalmer with New Zealand qualifications. In outlining the procedures adopted by the respondent the witness stated that each body is received with an identification tag, usually on the wrist or ankle. Additionally the respondent places its own identification tag on a body and that this extra identification is the responsibility of the employee who effects the transfer of the body to the respondent's mortuary. Also, in the casket underneath the trim, an identification tag is placed stating the name of the deceased and further the lid on the casket has the name of the deceased engraved on a name plate. Mr Tidman stated that the applicant when he was asked to do any duties regarding the preparation of bodies for funeral services it would be usual for him to take instruction from Ms Jodi Gosztyala-Pitchers as that person was studying to obtain formal qualifications as a mortician and occupied a more senior position in the organisation. The witness, Mr Tidman, stated that on the day in question, Friday 13 January 1995 the applicant had been working out of the office for most of the day. The witness stated that at approximately 5:00 pm he completed trimming the funeral casket for the cremation of Mr "X" scheduled for Monday 16 January 1995 and that he was in the preparation area of the mortuary room. At approximately 5:20 pm the witness stated he entered the temperature controlled room to fetch the body to be placed in that casket. At that time Mr Tidman stated that he noticed body "Y" was on a stretcher trolley and that the stretcher trolley would have to be moved in order that access may be had to body "X". Mr Tidman stated that body "Y" was clothed in a suit. Additionally body "Y" had purged itself and fluids emitted from the oral and nasal cavities and had collected on the clothing and the floor beneath the stretcher trolley. Mr Tidman left the temperature controlled room and entered the mortuary room to collect equipment to clean up the fluids as he determined that cleaning those fluids promptly was a priority and a health requirement. At that point the witness Mr Tidman met the applicant Mr Spriggs dressed in his drivers uniform. The witness Mr Tidman told the applicant he needed to clean up the body on the stretcher trolley. The witness Mr Tidman stated the applicant went to another room, changed his clothes, and returned to give assistance to Mr Tidman. The witness Mr Tidman stated that he did not check the identity of the body which needed to be cleaned up. In his affidavit sworn 28 March 1995 at paragraph 11 the witness Mr Tidman stated "the body (which soiled itself) was Mr "Y" who was to be buried on Tuesday 17 January 1995)." I find the affidavit of the witness Mr Tidman to be incorrect in that assertion as at that stage he had not checked the identity of the body dressed in a suit that needed to be cleaned up. Accordingly it was not until some time later did Mr Tidman know that the body which had soiled itself was Mr "Y" who was to be buried in Tuesday 17 January 1995. The Court heard no evidence that at no time did the manager Mr Tidman advise the applicant as to the identity of the body that had purged itself. Mr Tidman stated that while the applicant was changing his clothing he wheeled the body on the stretcher trolley through to the mortuary room. The applicant upon instruction assisted with the removal of the soiled clothing. In evidence Mr Tidman stated that in addition to cleaning up the body he prepared the body for its funeral - in that he attended to the closing of the eyes and the suturing of the oral and nasal cavity and that he probably attended to the arranging of the hair. In further evidence Mr Tidman stated that at the time he gave instructions to the applicant that his work for Monday was to prepare the bodies for funerals that were arranged for that Monday. In his affidavit dated 28 March 1995 Colin James Purslowe stated that he was the Managing Director of the respondent and that he learned of the incident by telephone at 11:30 am on the day in question. After conducting his investigations Mr Purslowe stated that the applicant had admitted to him that he had failed to check the identification tag of the body prior to preparing it for the funeral and prior to placing it into the coffin. Mr Purslowe stated that he advised the applicant this was an extremely serious matter and that he felt the applicant was mainly responsible for what had occurred. Mr Purslowe considered that the applicant's failure to follow the standard identification procedures amounted to gross misconduct and accordingly the applicant was dismissed. It seems the applicant on 19 January 1995 requested a reference for future employment and this was refused but an offer was made to supply a certificate of employment. An affidavit on behalf of the respondent was provided by Mark Ernest Purslowe who stated the he was the general manager of the respondent. As a result of learning the incident on 16 January 1995 Mr Mark Purslowe terminated the services of the applicant although the applicant expressed the opinion he was not totally to blame. Evidence on behalf of the respondent was also provided by Ms Jodi Gosztyla-Pitchers who stated that she was 19 years of age and that she was employed as a funeral director's assistant by the respondent and had been so since September 1993. The main duties of Ms Jodi Gosztyla-Pitchers are to prepare the bodies for the various funeral ceremonies. The witness stated that she asked the applicant if all the preparation been done for all the funerals scheduled for that day. The applicant apparently replied that one of the Victoria Park bodies had been prepared but not dressed as the clothes were at the dry cleaners and that Mr Tidman was going to pick them up on his way to work. Ms Jodi Gosztyla-Pitchers appeared to be of the view that the body was ready for it's funeral. Conclusion Prior to commencing finally giving my reasons for this decision I would like to state that the evidence before this Court shows that the respondent funeral directors conducts its business in a professional and sensitive manner and the key words which come to mind when describing the attitude of the respondent towards its relationships with its clients are dignity and respect. However the matters before the Court involve internal management practices and it is most unfortunate that those practices resulted in some of the clients of the respondent firm being affected. On behalf of the applicant it was alleged that at all times he was a funeral director's assistant mainly employed as a driver and that a training and guidance booklet which in fact had been prepared by the respondent had not been made available to him. In his affirmed statement of 13 March 1995 the applicant stated that the mistake as to the identity of the body began of Friday 13 January 1995 when the manager Mr Tidman began preparation of the wrong body. I find this statement to be incorrect as the Court heard evidence that Mr Tidman simply cleaned up a body that had purged itself and that the cleaning up had become a priority for health reasons. During the course of the cleaning up procedures no mention was made as to the identity of the body and it seems the applicant made the incorrect assumption that it was the body scheduled for cremation on Monday which this Court identified as Mr "X". In fact it was Mr "Y" the body that had purged itself and this body was scheduled for burial on Tuesday 17 January 1995. The mistaken identity problem was compounded by the fact that when the applicant returned to the Victoria Park branch he observed that his superior, the manager, Mr Tidman, had completed work on the coffin that the applicant assumed was to be used in the Monday cremation. The manager Mr Tidman failed to check the identity of the body which had purged itself. When he was working on that body he did not know the identity of that body. In hid evidence Mr Tidman stated he instructed the applicant that the following Monday he was to prepare the body for the funeral ceremony that was scheduled. The evidence of the applicant is to the contrary - that no such instruction was given to him or received by him. I find that it was the prime responsibility of the manager to correctly establish the identity of the body upon which he chose to work and particularly so when he requested assistance from the applicant. The error which compounded itself began at this point. I find it to be quite proper that at that time the applicant refrained from checking the identity of the body in question and appropriate that he simply do as he was instructed and assist his manager. I cannot agree with the assertion of the respondent that it was clear that on Monday 16 January 1995 the applicant was in charge of the situation concerning the forthcoming cremation and that he assumed that responsibility. To my mind because of the demonstrated management practices of the respondent and the events of the preceding Friday other people could and should have been equally been "in charge". At this juncture it is necessary to record that I prefer the version supplied to the Court by the applicant that on Friday 13 January 1995 the applicant was not instructed that his chores for Monday would include preparation of bodies for funerals. There was no evidence placed before the Court that Ms Jodi Gosztlya-Pitchers would not be reporting for duty the following Monday and able to assume her normal and usual position of being in charge of the preparation of bodies for funerals. In further support of this preference of evidence the Court was told that after cleaning up the body Mr Tidman also attended to certain facial arrangements of the deceased so that in fact I am of the view that the body was then ready for the funeral, apart from the clothing. Monday 16 January 1995, the applicant reported for work and together with another assistant Ms Jodi Gosztyla-Pitchers was instructed to dress the body immediately. Although it is true and I agree with paragraph 8 of the affirmed statement of the applicant dated 6 April 1995 that Mr Tidman mistakenly assumed that the soiled body was the one for cremation, it is also true to say that the applicant placed the body in the casket prior to the cremation service. The applicant did not check the cask identification date and establish the correct identity. This he should have done however bearing in his mind the established chain of command I am of the view that Ms Jodi Gosztyla-Pitchers was his superior in relation to the preparation of the bodies and but for her lack of age and experience I would have attached more responsibility to her for an apparent failure to check the identity of the body in question. I find it unfair to the applicant the he was dismissed for a mistake he made which was founded upon a primary and basic mistake made by his manager. I find that mistake of the manager to have been caused by pressure of work and this Court has heard nothing that either the manager or the employee were anything but exemplary employees. I cannot agree with the assertion on behalf of the respondent that the actions of the applicant amounted to gross misconduct and warranted instant dismissal. An investigation process was embarked upon and basically the applicant was provided with an opportunity to explain the position. The Court was given no information the employees were ever told that what in fact happened would warrant instant dismissal however the main witnesses agreed that what had happened was perhaps the worst thing that could happen. The respondent alleged that what the applicant had done had amounted to gross misconduct and that therefore there existed a valid reason for termination. The respondent relied upon the case of Baster v London And County Printing Works (1899) 1 QB 901 where it was held that a single instance of forgetfulness by a servant, by reason of which damage is caused to a valuable machine of which he has the care and management, may constitute such neglect of duty as to justify his master in dismissing him without notice. There Darling J state: "Neglect as often arises from forgetfulness as from anything else: and, if the forgetfulness is with respect to an important thing it may well in my view, be good ground of dismissal of the servant without notice. I do not say that it would be a good ground for dismissal in every case. Some trivial acts of forgetfulness might no even justify a complaint or remark; but to forget to do a thing which, if not done, may cause considerable damage to the master, or to his property, or to fellow servants, may be a serious neglect of duty." I am of the view that there was no valid reason for dismissal of the applicant particularly in light of the fact that the mistake was caused by partially by errors committed by other employees and further there was no evidence presented as to any disciplinary measures taken against those employees. The Court heard that consideration was being given by some of the relatives of the deceased persons to instituting proceedings against the respondent for damages for grief suffered as a result of the mix up. I cannot say that the mix up was totally the fault of the applicant alone and am therefore of the view that the authority cited above is not on all fours with the facts of this case. Primarily the applicant was employed as an assistant and the majority of his time was spent driving. If the consequences which did occur had occurred because of the driving of the applicant then I am of the view that instant dismissal would more than likely have been justified as that would have constituted gross misconduct. The respondent relied on the case of Bell Bros Pty Ltd v Transport Workers Union of Australia, Industrial Union of Workers, Western Australia Branch reported at 1969 46 W.A.I.G. at 1116 where the worker concerned had been in charge of a heavy and expensive truck owned by the company and that in the course of negotiating a bend in the road he had overturned the vehicle and caused considerable damage. Virtue J stated that: " having found that the worker was guilty of carelessness clearly the employer was entitled to dismiss him under the appropriate provision in the award, and the magistrate was not entitled - having so found - to refuse to find the he was entitled to be so dismissed." The respondent relied on this authority for the proposition the employer here was entitled to summarily dismiss the applicant on the basis of carelessness. To my mind the applicant was not careless, but in fact followed established procedure and relied on others to carry out the necessary checks. The respondent stated that this matter the applicant admitted what he had done. To my mind that "admission" fell more into the category of recounting the facts and cannot purely regarded as an admission of serious or gross misconduct warranting instant dismissal Accordingly I find for the reasons outlined above that the applicant was unlawfully terminated and that Sections 170DB and 170DE of the Act have been breached by the respondent. In the words of the Act the termination of the applicant was harsh, unjust and unreasonable. I order the respondent to pay the applicant the sum of eight thousand dollars within 21 days of the date of this judgement. I certify that this and the preceding thirteen pages are a true copy of the reasons for decision of Judicial Registrar Tomlinson. Associate: Date: Appearances Solicitor for the applicant: Hoffmans Counsel for the applicant: Mr M Posa Solicitor for the respondent: Freehill Hollingdale and Page Counsel for the respondent: Mr A Lucev, Ms A E Colgate