C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - claim of unlawful termination - whether valid reason for termination - procedural unfairness - compensation. INDUSTRIAL RELATIONS ACT 1988, Ss 170DC, 170EA LUCIANA LOMBARDI -v- EURO PRINTING CO PTY LTD Before: Wheeler JR Place Perth Date: 13 January 1995 IN THE INDUSTRIAL RELATIONS) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) WI 273/94 B E T W E E N: LUCIANO LOMBARDI - Applicant -v- PRINTING CO PTY LTD - Respondent MINUTE OF ORDERS BEFORE: Wheeler JR DATE: 13 January 1995 PLACE: Perth THE COURT ORDERS THAT: 1. The termination of the employer's employment of the employee contravened Division 3 of Part VIA of the Industrial Act 1988. 2. The Respondent pay the applicant compensation in the sum of $2,900. NOTE:Settlement and entry of orders is dealt with by Order 36 of the Industrial Court Rules. IN THE INDUSTRIAL RELATIONS) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) WI 273/94 B E T W E E N: LUCIANO LOMBARDI - Applicant -v- PRINTING CO PTY LTD - Respondent Before:Wheeler JR Place: Perth Date: 13 January 1995 EX TEMPORE REASONS FOR DECISION By an application dated 4 August 1994 the applicant, Mr Lombardi, claims a declaration and compensation in respect of the termination of his employment by the respondent on 16 July 1994. Briefly the employment arose in this way. The applicant first commenced working for the respondent as a printer in April 1992. At some stage subsequently, perhaps after a year, he was promoted to a position involving production management also. After a time, that additional duty was taken from him and he again became simply a printer. He left that employment of his own volition in about May 1994 and went to a job in a quarry driving bulldozers. After he had been in that employment in the quarry for a short period of time the respondent contacted him and offered him re-employment as a printer. There is a dispute as to whether that offer of re-employment was initially made on the basis of a return to work on a part-time basis, and that is relevant, and I'll come back to it in a moment. The applicant had enjoyed his former employment and had regretted leaving it and so he went back to his previous employment as a printer, a person operating the machines. He was working a 38-hour week and his pay as disclosed by exhibit A, his last pay slip, was a gross amount of $676 per week, with tax of 165.90 leaving a net pay of $510 a week. It's not in dispute that the applicant's employment terminated on 13 July, although there is some dispute as to the circumstances. The applicant's version is that on about 6 July 1994 the respondent said to him that things were not working out, that he was not getting along with two other employees by the names of Jason and Carl, and that it would be part-time work or nothing for the applicant. The applicant replied that he couldn't work part‑time. The applicant says that on 13 July the respondent asked him for the key. He asked why this request being made, and the respondent replied, "You know why, you finish up today." The applicant says he then worked until finishing time and went and got his pay slip, which was his normal pay slip, plus a small additional amount of $157.63, which apparently represents some holiday pay owing to him. The respondent's version of those events is that on 6 July 1994 he did indeed say to the applicant that things were not working out, but he says that he told the applicant specifically that he would be finishing work the following week on the 13th. And that on that day the girl who was employed in the office to do the pay made up the applicant's termination pay and he went to give it to the applicant, but the applicant was not there. The applicant collected it, on the respondent's version, at some later stage from the office. The application is made firstly on the basis that there was no valid reason for the termination of the applicant's employment. And in answer to that suggestion the respondent puts forward, as I understand it, four bases for dissatisfaction with the applicant's performance, two of which figured particularly during this hearing. Firstly, there was raised in cross-examination of the applicant by the respondent the question of an alleged theft of money from the respondent's business on an unspecified occasion. That allegation was not raised with sufficient particularity to allow the applicant to deal with it in cross-examination, and it was not pursued by the respondent in his evidence-in-chief. I also note that it seems to have been, in any event, alleged that the alleged theft occurred during the first period of employment and before the applicant's re-employment. That would therefore not seem to be a reason as a basis of the dismissal on this occasion. More generally, it was said that the applicant had difficulty in working with two other employees by the names of Carl and Jason and that those employees had approached the respondent about the difficulty and had indicated that they were not happy working with the applicant. Further, it was said that the applicant had, on a particular occasion, refused to run two machines at once, a job that he had done on many other previous occasions. To that the applicant says that he did indeed refuse on that occasion, that he was of the view that doing the work in that fashion was not safe, but that he had done it previously and indeed did it after that date in order to assist the respondent and to keep the peace. It was further said that the applicant had been doing his job incompetently on a number of occasions, that too many of the jobs that he did were going wrong and being returned and that there was a specific mention of some forms which had been returned on a date close to 6 July, although unspecified, which caused the respondent to arrive at the decision to dismiss the applicant. Now, in relation to those bases for termination, the onus of proving that there is a valid reason for termination is on the respondent. It is clear that a refusal to perform work may be a valid reason for termination. However, I am not in this case satisfied that the refusal, which it is clear did occur, to operate two machines on one occasion was a valid reason for termination, for two reasons. Firstly, I'm not satisfied of the reasonableness of the request, having regard to the safety considerations raised in evidence by the applicant and not really addressed by the respondent in his evidence. And secondly, it's clear that, leaving those considerations aside, this was a one-off refusal and that after that occasion the applicant did indeed operate the machines as requested on other occasions. In relation to the difficulty in working with other employees, that may well be a valid reason for termination. A thread, not always easy to discern, but a thread which seems to have been running through the respondent's evidence, is that the applicant was arrogant in his attitude to his work, considered himself indispensable and was difficult for the respondent and for other employees to get along with. Although not always easy to assess and measure, it is clear that a person who persistently operates in an aggressive or arrogant manner, in a manner which makes it impossible for others to work with him, can bring about his dismissal for valid reasons in that way. Whether that was the case here, I don't think in the end I need finally to determine, although I would be inclined to believe that there were some problems of the nature referred to by the respondent, in particular because there seems to have been an incident in which, on an earlier occasion, the applicant was asked to hand over some keys, indisputably belonging to the respondent and indisputably used for opening up the business, on the basis that it was not convenient to the applicant to hand them over because then he would not be able to open up the business at a time which was convenient to him. I have to say that seems to me to be an extraordinary attitude to adopt in relation to what was clearly the employer's premises and the employer's keys. However, for reasons which I'll canvass in a moment, I don't need finally to determine that. Further, in relation to the doing of the work in an incompetent manner, again that clearly can be a valid reason for termination. I'm not satisfied having regard to the onus in this case, that that reason existed here, and I'm not satisfied simply on the basis of the onus, because it seemed to me that both the respondent and the applicant were firm, clear and each believed in his assertion, on the respondent's part that the jobs were wrongly done by the applicant, and on the applicant's part, that except for one much earlier occasion which is not presently relevant, his work performance was by and large satisfactory. Now as I'm not able to resolve those issues of credibility firmly one way or another, it follows on the basis of the onus of proof that the respondent must fail on that basis. However, the applicant also says, and here, I think, the issues are much clearer, that he was given no opportunity to respond to the allegations made. The evidence seems to be that in relation to the refusal to do a particular job and in relation to the difficulty with other employees, those matters were raised by the respondent with the applicant, albeit in very general terms, and the applicant's response was simply to deny that there were such problems. However, in relation to doing the jobs wrongly, there's no evidence that that was really raised on any occasion after his re-employment with the respondent all, so that he seems to have had no opportunity to defend himself against those allegations. Even in relation to those allegations which were discussed with him, the evidence of the respondent is that the discussion seems to have been in very general terms, that nothing specific in the form of any specific incident was put to the applicant and that he therefore was not in a position to know precisely what difficulties with Carl and Jason, for example, were alleged to threaten his employment. I should add that that finding is consistent with the way in which the respondent has conducted his case. A notable feature of his cross‑examination, in particular, was his assertion that the applicant knew what he had done wrong on a number of occasions and in relation to a number of incidents and he was unable to particularise allegations that he made even in this court in detail which would sufficiently enable any reasonable person to respond to them. It seems very clear to me that any conversations that he had with the applicant about the applicant's work performance on other occasions were conducted in much the same general and unhelpfully unspecific terms, so that there was, for the purpose of section 170DC, no real opportunity for the applicant to defend himself, because there were no adequately specific allegations made, or apparently made, in relation to jobs wrongly done towards the end of his employment, no allegations at all. The respondent's evidence was simply to the effect that he had told the applicant that it was not working out and that on the following week he would finish. In relation to the question of notice, which I mentioned earlier, there was a dispute as to whether notice was given, and in relation to that specific dispute, I prefer the evidence of the respondent to the evidence of the applicant. There seems to be no particular reason why the respondent would on this occasion offer the applicant employment on a part-time basis. None was put forward by the applicant. And then, having done so, there's no reasonable explanation for the respondent having offered employment on that basis, then taking the applicant on on a full‑time basis, and then, on the applicant's evidence, either changing his mind or using the desire to have the applicant work part-time as a pretext for dismissing the applicant. That is an account which lacks internal coherence and which lacks any support by way of reasons or explanation. The respondent gave his evidence as to what he said to the applicant convincingly and, in my view, consistently with the rest of his evidence. That is, he said things were not working out. He said that next week the applicant would finish and he said that in very general terms, which again is consistent with the way in which he talked about the applicant's employment throughout the course of cross‑examination. So that I do find that at least a week's notice was given, but I find that the termination of the applicant's employment contravened section 170DC of the act, in particular that the applicant was given no opportunity to defend himself against the allegations made. Now, on the question of quantum, the applicant has been employed in other employment since about 2 weeks following his termination. It's primarily for that reason, and also because of a degree of personal animosity that seems to have arisen that the applicant does not wish for reinstatement, and I find it's clearly not practical in this case. However, that new employment, on the applicant's evidence, brought him about until last Christmas, that is for a period of approximately 6 months, a take home pay of roughly $397 per week, or about $113 per week less than he had been getting in his employment with the respondent. He was unemployed for 2 weeks, during which time his solicitor advises that he did not receive unemployment benefits. In my view it would be reasonable to compensate him for the difference for that period of time between the take home pay received in his new employment and that which he would have been able to earn had his employment continued with the applicant. Having regard to the nature of the employment, the length of the employment, the fact that the applicant left it voluntarily on an earlier occasion even though he later regretted that decision, and having regard to the state of the personal relationships between the applicant and the respondent, I would not propose to compensate beyond that difference in take home pay plus some allowance for the unemployment. And for that reason I would order that the respondent pay to the applicant compensation in the sum of $2900.00 to the applicant. I certify that this and the preceding 7 pages are a true copy of the reasons for decision of Judicial Registrar Wheeler. Associate: Date: Counsel for the applicant: Ms R J Hickey Solicitors for the Applicant: Hammond Worthington Prevot Representative for the respondent: Mr A Manni Date of hearing: 13 January 1995 Date of Judgment: 13 January 1995