Wilkins v Path Lab [1995] IRCA 399

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT-Performance INDUSTRIAL RELATIONS ACT 1988, ss.170DB, 170EE, 170DE WILKINS -v- PATH LAB No. SI1076/95 JUDICIAL REGISTRAR : L FARRELL PLACE : ADELAIDE DATE : 27 JULY 1995 INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY) No. SI1076 of 1995 B E T W E E N: WILKINS Applicant - and - PATH LAB Respondent MINUTES OF ORDER BEFORE : JUDICIAL REGISTRAR FARRELL PLACE : ADELAIDE DATE : 27 JULY 1995 THE COURT ORDERS THAT: 1. That the Respondent pay to the Applicant the sum of $3,443.40 pursuant to Section 170DB of the Industrial Relations Act. 2. That all other aspects of the Applicant's Application be dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SI1076 of 1995 B E T W E E N: WILKINS Applicant - and - PATH LAB Respondent

BEFORE : JUDICIAL REGISTRAR FARRELL PLACE : ADELAIDE DATE : 27 JULY 1995 REASONS FOR JUDGMENT (EX-TEMPORE JUDGMENT REVISED FROM TRANSCRIPT) This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims compensation for unlawful termination of his employment. The Applicant is aged 51. At the time of his dismissal he was employed as a Senior Scientist by the Respondent and he was paid $860.85 per week. His employment had commenced on 14 April 1990. His employment was terminated on 10 March 1995. The reasons for the termination of his employment were set out in a letter to him dated 10 March 1995 from Dr Jane Lomax-Smith. Those reasons can be summarised as follows:- 1. The Applicant had not performed any tests on an urgent sample (5011) on 3 March 1995. 2. His explanation as to why the tests had not been performed was unsatisfactory. 3. An unacceptable delay had occurred in the performing of test on another urgent sample (5010) on 3 March 1995. 4. The Applicant's apparent failure to telephone the results of the test on same 5010 to the doctor who had requested the test. 5. The Applicant's inability to recall the case or events surrounding earlier errors. 6. The consequence of his actions could be life threatening, could ruin the Respondent's reputation and could result in the Respondent being sued for malpractice. The evidence of Dr Lomax-Smith makes it clear that the earlier errors which were the subject of warnings to the Applicant also form part of the reasons for the Applicant's termination of employment. I will not detail the history of the warnings and errors. What happened was not in dispute. What is in dispute was the importance to be attached to those warnings and errors and the responsibility of the Applicant in relation to them. In my view those earlier errors were not minor errors, they were gross errors and easily detectable. It was the Applicant's responsibility to ensure that correct results were released to the Respondent's clients. They leave a serious concern as to what other errors may have been made by the Applicant which were not detected. The expert evidence given in this matter by Dr Guerrin regarding what was an acceptable blunder rate did not specify the kind of errors that could be expected. In the circumstances of this matter where, without any reasonable explanation by the Applicant as to how the errors had occurred, the Respondent was left with difficulty relying on him to perform his work at an acceptable level. In my view these were appropriate matters for warnings to be given to the Applicant and those warnings were carried out in an appropriate manner. I deal now with the evidence given in relation to this matter briefly. The Applicant's evidence was of some concern to me. His recollection was poor as was his knowledge of many of the events at issue. I accept that Mr Aksenov, Dr Lomax-Smith, Ms Baldock, Mr Osborne and Mr Adrianasz gave their evidence candidly in this matter. In relation to the process of the urgent samples on 3 March I accept the evidence of Mr Aksenov that he alerted the Applicant to the urgent sample and placed the form on the Applicant's work bench. In my view the Respondent had a valid reason for the termination of the Applicant's employment. The failure of the Applicant to process the urgent sample in light of his previous warnings and the possible consequences of his failure to process the sample render this a valid reason for the termination of the Applicant's employment. Counsel for the Applicant raised a number of matters that in my view fail to deal with the central issues relating to this Application. I do not deal with them all. He broadly focused on the Respondent's failure to manage its business. He overlooked the fact that the Applicant was senior and an experienced scientist and that he had a level of responsibility in the organisation. He overlooked the history of warnings over the last few months before the termination of his employment. The Applicant argued that the failure of the Respondent to set policy as required by the Award rendered the termination of his employment unlawful. Not every breach of an Award renders the termination of employment harsh, unjust and unreasonable. I do not accept the argument that the process by which the Applicant's employment came to an end was harsh, unjust and unreasonable as a result of the breach of the Award. I am not satisfied that any matters raised by the Applicant render the termination of the Applicant's employment harsh, unjust and unreasonable. In relation to Section 170DC I am satisfied that the Applicant was given the opportunity to respond to the allegations that resulted in the termination of his employment. He was given a letter on 8 March advising him of a meeting the following day in relation to one of the urgent samples on 3 March 1995. A Union Official was arranged to attend that meeting. He was given the opportunity to put his view at that meeting. Section 170DC does not provide an unlimited and exhaustive right to an Applicant to respond. I think it is pertinent to the issues in relation to Section 170DC that are raised by this Application that the Applicant held a senior and responsible position and was an experienced scientist. In relation to Section 170DB I do not accept that the Applicant's conduct was serious misconduct for the purposes of the Act. The reasons for the termination of his employment relate to his performance and I do not think there is sufficient evidence to suggest that his conduct was deliberate or reckless. The Applicant is entitled to the amount agreed pursuant to Section 170DB of $3,443.40. All other aspects of the Applicant's Application will be dismissed. I certify that this and the preceding two pages are a true copy of the reasons for my judgment. DATE OF HEARING : 11, 18, 19, 20 & 27 July 1995 FOR THE APPLICANT : Dr Salu FOR THE RESPONDENT : Mr E Reinboth