Australian Services Union & John Raymond Rieusset v Royal Victorian Institute for the Blind [1995] IRCA 431

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2684 of 1994 B E T W E E N : AUSTRALIAN SERVICES UNION & JOHN RAYMOND RIEUSSET Applicant AND ROYAL VICTORIAN INSTITUTE FOR THE BLIND Respondent Before: Judicial Registrar Chancellor Place: Melbourne Date: 1 September 1995 REASONS FOR DECISION This is an application pursuant to Section 170EA of the Industrial Relations Act by John Rieusset (the Applicant) with respect to the termination of his employment by the Royal Victorian Institute for the Blind (the Respondent) as a technical officer on 1 December 1994. The Applicant called the following witnesses:- 1. John Rieusset; 2. Reg Myers - an organiser with the Australian Services Union; 3. Dr Daniel Csutoros - the Applicant's general practitioner. The Respondent called the following witnesses:- 1. Len Stevens - who was the Applicant's department head prior to June 1994 and the acting chief executive officer of the Respondent from June to December 1994; 2. Lee-Anne Thorpe - who was the Applicant's acting department head from June to December 1994; 3. John Gaeth - who was the Applicant's team leader; 4. John Lock - who was the personnel manager of the Respondent. The Applicant commenced employment with the Respondent in 1975. Although he had no formal qualifications he was innovative and enthusiastic about his work and achieved the position of technical officer. This involved him in developing, arranging and providing technical aids to clients of the Respondent. The Applicant's technical performance was not in issue and indeed John Gaeth gave evidence that the Applicant was patient and committed to his clients. Unfortunately, it appears that from at least the beginning of 1992 that the Applicant was of the view that a number of matters were being mis-managed by the Respondent and that the Respondent was not addressing his concerns. It seems that this led to conflict and a lack of trust on the part of the Applicant. In a memo dated 24 August 1992 John Gaeth alleged that the Applicant had been aggressive and persistent with complaints in relation to equipment purchases at an earlier team meeting, and his conduct meant that he could have been warned for insubordination. The memo confirmed that Mr Gaeth had said to the Applicant "no one of importance at the Royal Victorian Institute for the Blind likes you". Mr Gaeth explained that this was because of the Applicant's lack of performance in relation to administrative matters and also to the conflict which had developed. On 7 September 1992 the Applicant had a meeting with Len Stevens. Mr Stevens says that he told the Applicant that the meeting was part of a counselling process and that the Applicant knew he was subject to an official warning. The Applicant gave evidence that it was a man-to-man discussion in relation to problems and possible solutions and that he was not told that it was part of the disciplinary procedure and that further he was not allowed a witness which is part of the procedure requirements. On 8 September 1992 the Applicant was handed a memo headed "Confirmation of first warning regarding conditions of employment". The memo canvassed five main points:- 1. The Applicant was advised that the normal hours of work were 9.00am to 4.30pm. The memo confirmed that as a result of the Applicant's asthmatic type condition that it was recognised that he may have difficulty travelling in peak hour traffic with the extra fumes and pollution but reiterated that he must provide a medical certificate to that effect in order to alter his hours. The memo pointed out that Mr Stevens had asked for a medical certificate on several occasions but it had not been forthcoming; 2. The memo pointed out that the Applicant had attended 2 out of 14 team meetings, had been absent without notice from 11 staff meetings in six months and had only attended two professional development sessions in 1992. The Applicant was reminded that attendance at staff meetings and professional development sessions was compulsory and that although attendance at team meetings was voluntary it was expected; 3. The memo confirmed the requirement that the Applicant produce a weekly running sheet by 9.30am each Monday. There had been several failures to produce the running sheets and many other occasions when they were only produced after reminders; 4. The Applicant's failure to adopt the correct grievance procedure in relation to a particular dispute; 5. The memo outlined the Applicant's discourtesy in failing to attend appointments arranged with fellow staff members. The Applicant gave evidence that he was most upset that what he felt was a "man-to-man discussion" had become a formal warning session. He sought union intervention to discuss the matter. Eventually a meeting was held on 11 December 1992 at which the Applicant, the union, Mr Stevens and Mr Lock were present. As a result of the meeting the first warning was withdrawn on the basis that the Respondent had not followed its procedure by specifying that this was a formal warning and asking the Applicant whether he wanted a witness. It was agreed that the Applicant would work from 8.00am to 4.06pm in order to reduce the aggravation of his asthmatic condition. The Applicant agreed to hand in his completed running sheets by 9.30am each Monday. The grievance procedure to be adopted where clients were involved was discussed and clarified. The Applicant agreed to communicate if he was ill or unable to work or if he was attending clients direct from his home. Although it was not mentioned in the record of agreement it appears that the Applicant indicated that he would attend fortnightly staff meetings, monthly professional meetings and the question of team meetings was probably also raised. The Applicant was clearly put on notice that his performance was expected to improve in relation to a number of administrative type matters. It appears that in the early part of 1993 there was improvement but that the situation soon began to deteriorate. In July 1993 the Applicant failed to attend a performance appraisal meeting with John Gaeth. The Respondent's policy required performance appraisal to be carried out on an annual basis. This involved the worker and his team leader filling out questionnaires in relation to performance, swapping the documents and then reaching some consensus in a round table discussion. In a memo of 13 July 1993 Len Stevens indicated to the Applicant that the performance appraisals were effectively compulsory in nature but that he was willing to listen to any concerns. In his evidence the Applicant said that he had lost confidence in the grievance procedure and that this was his reason for failing to comply with the performance appraisal requirement. The Applicant felt that if he objected to something in his performance appraisal then he had no effective grievance procedure because that would involve consideration by John Gaeth in whom he lacked confidence, Len Stevens who he believed had seen the memo of 24 August 1992 prior to its distribution and had failed to properly carry out the alleged warning procedure while counselling him and Peter Evans the executive director who the Applicant felt had not intervened in response to the Applicant's previous complaints. Although the Applicant made some mention of his problem with the grievance procedure to Len Stevens I accept the evidence of Mr Stevens that it was never clear precisely what the Applicant was talking about. Although I can understand the Applicant's concerns it appears unacceptable that he should have refused to undertake the performance appraisal on the basis that if it was not favourable and positive that there was not an appropriate grievance system in place. Mr Gaeth and Mr Stevens continued to make verbal requests in relation to the performance appraisal but were continually ignored by the Applicant. In the period June to November 1994 Lee-Anne Thorpe and Mr Gaeth made numerous written requests to the Applicant in relation to the performance appraisal. The Applicant continually failed to respond, failed to provide Mr Gaeth or Lee-Anne Thorpe with any explanation, failed to attend pre-arranged meetings and failed to give any warning that he was not going to attend. In my opinion his attitude and behaviour in relation to the performance appraisal was quite unacceptable and the patience shown by Lee-Anne Thorpe and Mr Gaeth was quite remarkable in the circumstances. The Applicant had a further substantial problem in that from October of 1993 he failed to record file notes in relation to the clients of the Respondent whom he attended. The files notes were important for two very obvious reasons. Firstly, 60% of the Respondent's funds came from government funding and it was a requirement under the Disability Services Act Funding Agreement that all material intervention with clients is recorded. Secondly, accurate file notes are required to ensure that the client gets continuity of intervention if matters such as illness, holiday or change of staff take place. Unfortunately, the Applicant showed almost complete contempt for this administrative process which had the potential to put his clients at risk both in terms of reduction in funding and disruption of intervention. The Applicant's explanation was two fold. Initially he argued that he made some brief file notes on running sheets but when some running sheets were produced the file notes were obviously inadequate. The Applicant's other explanation was that there had been a breach of confidentiality in relation to a client named A W. A W had become aware of the contents of file notes and had been approached in relation to them. The Applicant said that he spoke to John Gaeth on at least two occasions about the complaint and felt that nothing was done. He said that he lacked confidence in management. This matter was raised at a team meeting on 2 December 1993. However, this was the only example of an alleged breach of confidentiality that the Applicant was able to provide and in my opinion in no way justified his continued failure to lodge or make proper file notes. Numerous memos were sent to the Applicant from December 1993 to November 1994 effectively pleading with him to record the necessary file notes. I find that his failure to do so was totally unacceptable in the circumstances. The Applicant's attendance at staff, team and professional development meetings through 1994 was erratic to the say the least. He conceded in cross examination that he knew he had to attend the meetings and conceded that he missed approximately 21 out of 45 meetings which were arranged. He agreed that he was not co-operating with the Respondent. The Applicant was sent a number of memos through the latter half of 1994 indicating the requirement that he attend meetings but these were largely ignored. The Applicant's explanation was that at the meetings he couldn't get his view across and felt that other team members and management had a poor attitude to clients. He complained that things were not recorded in the minutes, that the meetings were not productive and that his own input was not properly received. The Applicant may have genuinely held those views, but in my opinion they do not justify failure to attend, which merely worsens the problem as the Applicant was then having absolutely no input into the Respondent's organization and was also disruptive and counter productive to the Respondent. From August 1994 it appears that the Applicant failed to submit any running sheets at all in relation to his daily and weekly activities. Given that his attendance had became somewhat erratic as he often allegedly went from home to clients without notifying the Respondent and had a number of days off sick, this made it almost impossible for the Respondent to monitor his daily and weekly performance. The person to whom the Applicant normally submitted the running sheets was away on leave on 5 August to 4 October 1994. The Applicant argued that he was reluctant to lodge the running sheets because they may be seen by volunteers or people who ought not see them and was concerned with confidentiality. Again, there was no evidence to justify such a concern and even upon the return of the relevant staff member the Applicant still failed to submit the running sheets. At all times, Lee-Anne Thorpe tried to be as conciliatory and as helpful as possible. On 27 July she sent a memo to the Applicant asking him to meet with her in relation to the question of failure to attend meetings and failure to make file notes. The memo indicated that the meeting would be friendly to discuss training and support. Lee-Anne Thorpe gave evidence that the Applicant often seemed agitated and assumed the worst. She said that she just wanted to talk to him and wanted to clearly impress this upon the Applicant. Indeed on 3 August Lee-Anne Thorpe sent a hand written note to the Applicant requesting a meeting and said "remember its just a discussion - not anything drastic". A meeting was subsequently held on 15 August and a memo of 23 August confirmed that the Applicant was expected to write in the file every time he saw a client, was required to attend team meetings on a compulsory basis as well as the staff and professional development meetings and was told that Lee-Anne Thorpe was always available to discuss issues of concern. Despite this meeting very little improved. The Applicant continued to evade the performance appraisal procedure often causing inconvenience to Mr Gaeth and Ms Thorpe who made time available for meetings which he failed to attend without explanation. The Applicant failed to make file notes and refused to put in his running sheets despite repeated requests and his attendance at meetings remained poor. After three months of attempts at amicable conciliation Lee-Anne Thorpe quite understandably lost patience with the Applicant by mid-October 1994. In a memo of 14 October she confirmed that on 4 October the Applicant had left a professional development meeting at its commencement without explanation and later failed to attend a staff meeting and team meeting without explanation. She indicated that his attendance record was totally unsatisfactory and that he was expected to attend at all meetings from that time. She also criticised him for failure to contact her in relation to performance appraisal. She said that the Applicant had been given a fair and reasonable go and that he had made no attempt to rectify his problems. She said that the memorandum was sent to indicate to him that he was to address these matters immediately. However, she did agree that the memo did not amount to a formal warning in accordance with the Respondent's policy. On 17 October Mr Gaeth and the Applicant met in relation to performance appraisal. The Applicant refused to exchange documentation. He gave his normal explanation which was something to the effect of "there are some issues not resolved and I will be putting something in writing". Mr Gaeth said that nothing came of it and that no satisfactory explanation was provided. On 28 October Mr Gaeth sent a memo to the Applicant indicating that for the last one and a half weeks the Applicant had been rarely on site and that his hours of work had not been verifiable. The memo also indicated that the Applicant had not cleared his pigeon hole as opposed to selectively scanning its contents or telephoning to ask secretaries to relay messages. It was also thought that the Applicant was using his own transport to visit clients without the Respondent's approval which obviously had problems in relation to Workcare and associated matters. The memo concluded "please come and talk to me about your work related problems". In his evidence the Applicant agreed that the allegations made in that memorandum were a fair representation. John Gaeth gave evidence that no one else in his team had problems with file notes, running sheets, attending meetings or undertaking performance appraisal. Lee-Anne Thorpe gave evidence that no other staff members had the same problems. Lee-Anne Thorpe had bent over backwards in an effort to assist the Applicant but he had ignored her friendly and conciliatory approaches and indeed was extremely discourteous to her by his repeated failure to attend meetings and to forewarn her of his non-attendance. Quite understandably the Respondent eventually tired of the Applicant's unacceptable behaviour and sent a memo dated 18 November 1994 advising the Applicant of a meeting to discuss his failure to comply with management requirements. In summary, the memo raised the following issues:- 1. The Applicant's failure to either come to work or call in and then leave without logging his destination so that no one was informed of his whereabouts. There was also an allegation of falsification of attendance records on two particular days but I accept the Applicant's explanation in that regard; 2. Failure to attend mandatory professional development, staff and team meetings or attending for an insignificant period of time and then leaving without either seeking permission or offering a reason for sudden departure; 3. Failure to regularly clear official communications other than selected messages and letters from clients from your pigeon hole mailbox in the secretary's office on the first floor; 4. Failure to keep appointments with John Gaeth and/or Lee-Anne Thorpe, your failure to contact them to apologise and arrange another appointment time and your deliberate ignoring of their request that you contact them to establish mutually acceptable meeting times and dates; 5. Failure to maintain current files by updating file contact notes for each client you visit, by raising appropriate individual program plans and your compounding the situation by refusing to provide numbers; 6. Failure to participate in performance appraisal process, repeatedly refusing to accept the standard pro-forma documentation and refusing to make appointments to discuss the obvious difficulties you have with the process; 7. Failure to lodge running sheets each Monday morning; 8. Refusal to accept your copy of the procedures manual and staff handbook. The memo stated that these behaviours were unprofessional, totally unacceptable and denoted a lack of respect for co-workers in the organisation which employs the Applicant. I must say that after hearing all of the evidence I agree entirely with those sentiments. The Applicant seemed to be on a frolic of his own with a total disregard for both his employer and fellow employees. The memo requested that the Applicant attend a meeting with Reg Myers from the ASU, John Lock and Len Stevens. The meeting was to be held at 9.30am on Friday 25 November 1994. On 18 November a copy of the memo was placed in the Applicant's pigeon hole, a copy was placed on his desk and a copy was forwarded to him by way of certified mail to his correct home address. The certified mail receipt was produced in evidence. On 22 November Mr Stevens and Mr Lock noted that the memo was still in the Applicant's pigeon hole and still on his desk. They decided to personally hand a copy of the memo to the Applicant. Mr Lock and Mr Stevens approached the Applicant to hand him the memo. The Applicant refused to take the envelope alleging that it was outside the scope of the Respondent and a matter for the union, a statement I am unable to understand. Although there is some conflict as to what was said on 22 November I find that it is likely that Mr Lock indicated to the Applicant that there was a meeting on Friday at 9.30am and the Applicant said that he would speak to the union. The Applicant received advice from the post office on 21 November that there was a certified mail item for collection. The Applicant received a second reminder card on 28 November but did not collect the letter, which contained the certified mail copy of the memo, until 8 December from the Fairfield Post Office. In his evidence the Applicant denied that he knew that there was a meeting arranged for 9.30am on 25 November. I am unable to accept the Applicant's evidence in this regard. It is likely that he was aware of the meeting date either from scanning the memo in his pigeon hole, scanning the memo on his desk or as a result of the conversation on 22 November. It is likely that he deliberately left the memo in his pigeon hole, on his desk and failed to collect the certified mail to provide an explanation for his subsequent failure to attend the meeting on 25 November. Indeed, despite his comment on 22 November that he would speak to the union he made no attempt to contact the union prior to 25 November. The Applicant conceded in cross examination that he knew that there was to be a meeting involving the union and that he knew it was on a Friday. He said that he did not know the date. He said that he did not want to stay and listen to two dishonourable and untrustworthy men. Despite the strong likelihood that the meeting was to be on the immediate Friday the Applicant said that he made no attempt to confirm that fact. Again, this is entirely consistent with a man who is attempting to avoid the meeting and its potential repercussions. I should add that the memo had attached to it details of the Respondent's warning and dismissal procedures. The Applicant was absent from work on 23 and 24 November. He claimed that he was ill but did not attend a doctor on either of those days. On 25 November he rang work at 9.15am saying that he would not be in because he was still sick. He said that he understood there was a meeting today or next Friday that he was expected to attend. He said that he wished to attend but could not come in that morning. It seems to me that the Applicant knew quite well that there was a meeting on the morning of 25 November and that he was determined not to attend. He attended the Northcote Community Health Centre on 25 November and obtained a medical certificate backdated to include 23 and 24 November. Dr Csutoros said that it was not uncommon to backdate certificates if people were unwell or could not get an appointment. It should also be noted that on 6 October, 12 October and 14 November the Applicant had produced medical certificates on occasions that he was meant to meet to exchange the performance appraisal documents. Although I accept that the Applicant was suffering with some stress related problems there is an unfortunate pattern of his being allegedly unable to attend work on days when formal meetings were arranged. The Applicant was absent ill on 28 November and again attended the doctor on 29 November. On examination on that day he was a little anxious and stressed but his stool motions were back to normal. The doctor recommended that he have two further days off on the basis that the Applicant would benefit from not attending work, but Doctor Csutoros agreed that there are occasions when people can cope with work although holding a certificate. The Applicant resumed work on Thursday 1 December. In the morning he got a car from the Respondent and spent the day visiting clients. He returned to the Respondent's premises shortly after 5.00pm. The Applicant said that he was stressed having got back late and being caught in traffic. He said that he was worried about the pollution and his health. He took the car keys to the personnel office where John Lock and Len Stevens were waiting for him. The Applicant said that they spoke, that he didn't hear what they were saying and that he went out quickly because he had to pick up his child from a child care centre. On balance, it does not appear that the Applicant advised either Mr Stevens or Mr Lock that he had to pick up a child. The Applicant said that he moved quickly out of the office area toward his car. He said that Mr Stevens and Mr Lock were moving quickly along behind him calling out but he couldn't understand them. He got in his car and shut the door. Mr Lock opened the door and spoke to him and the Applicant said that he couldn't comprehend what was said. The Applicant said that he felt harassed and that he was being blocked from getting out of the car park and leaving work. Mr Stevens and Mr Lock gave evidence that Mr Stevens said to the Applicant words to the effect of "I need to speak to you" but that the Applicant ignored him and walked out. Mr Stevens and Mr Lock followed making the same request five or six times indicating that they had to speak to and meet with the Applicant. It appears that as they were following Mr Lock said words to the effect of - "if you don't wait you will be terminated". There was no response and the Applicant got into his car and closed the door. Mr Lock then opened the door and said words to the effect of - "if you won't stay and meet then you are terminated." The Applicant closed the door, opened his window and said words to the effect of - "see the union, you have taken this off site." I find it is likely that the Applicant heard what was said but chose to ignore it. On 2 December Mr Stevens wrote to the Applicant confirming his termination. The letter said in part "I informed you at least five times that as your department head I needed to speak with you immediately. You refused to acknowledge my statements and proceeded to leave the premises. This is not the first occasion on which you refused to discuss matters with management. By refusing to wait and speak with me you have failed to comply with a lawful and reasonable instruction given to you by myself in the presence of the personnel manager, Jonathan Lock. I therefore confirm Jonathan Lock's statement to you that your employment with the Royal Victorian Institute for the Blind has been terminated as at the close of the business Thursday 1/12/94. All entitlements owing will be paid out today." The Applicant was sent his accrued entitlements together with five weeks pay in lieu of notice. Although the Applicant denied receiving the couriered letter on 2 December he conceded that as a result of the events on the previous evening and a telephone conversation with one of his clients on 2 December, he believed that he had been terminated because he had walked away from his employer. During a consultation with Dr Csutoros on 6 December the Applicant said that he had been harassed in the car park and instantly dismissed. He conceded to the doctor "to some extent I set it up myself - in a way I am happy it happened". Was there a Valid Reason for Termination? The question of a valid reason was canvassed by Justice Northrop in Selvachandran v Peteron Plastics Pty Ltd (Northrop J, unreported, 7 July 1995) where he said at pp 6 and 7:- "In its context in subsection 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly...". The Respondent argued that it was entitled to dismiss the Applicant because of his persistent failure to comply with lawful directions together with his failure to comply with the direction to stop and discuss matters on 1 December which it was said was the last straw that broke the camel's back. Applying the provision in a practical, commonsense way in particular given the history I have outlined I find that this does constitute a valid reason for termination. The Respondent argued that in the alternative it had a valid reason for termination in that the Applicant's work performance in terms of failure to complete file notes, submit running sheets, attend meetings and complete performance appraisal amongst other matters was totally unacceptable and justified termination. I agree with the proposition that the Applicant's performance was totally unacceptable. He basically sought to work within an organisation but refused to comply with any of its directions or administrative procedures and showed a vast disrespect for his superiors and fellow employees. Was There a Breach of Section 170DC of the Act? In terms of the allegations concerning the failure to complete file notes, submit running sheets, attend meetings, attend the performance appraisal and clear his pigeon hole I find that the Applicant was given an opportunity to defend himself against the allegations made. The memo of 18 November advised him of a meeting on 25 November. In my view he was aware of the meeting but failed to attend. Prior to that date he had been given numerous opportunities, albeit in a more informal matter, to state his position. In relation to the dismissal as a result of failure to obey a lawful instruction I find pursuant to s.170DC(b) that the employer could not reasonably be expected to give the employee that opportunity. The Applicant had been given numerous opportunities in the previous six months to discuss a range of matters with the Respondent but had continually failed to do so. His failure to attend the meeting on 25 November was further confirmation of his unwillingness to discuss matters with his employer. In those circumstances it is unreasonable to expect the Respondent to arrange yet another meeting to discuss an issue with the Applicant. Was the Termination Harsh, Unjust Or Unreasonable? The Applicant argued that the Respondent had failed to follow its own policy procedures in relation to warnings and dismissal. Such a failure may lead to a termination being harsh, unjust or unreasonable. See Paul Janicek v ICI Dulux Australia (unreported, JR Staindl, 1 March 1995). In this case the Applicant refused to accept the memo of 18 November when Mr Lock and Mr Stevens attempted to hand it to him and failed to attend the meeting of 25 November. By doing this he was avoiding taking part in the Respondent's disciplinary procedure and in those circumstances I find that he cannot then seek to rely on some breach of those procedures in support of his case. The act of termination occurred in most unfortunate circumstances being in the heat of the moment after normal working hours. However, even taking into account the Applicant's level of stress and need to get elsewhere, the Applicant did not make any effort to respond and was effectively the author of his own demise. MINUTES OF ORDERS THE COURT ORDERS: 1. The Application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding twenty (20) pages are a true copy of the reasons for judgment of Judicial Registrar Chancellor. Associate: Dated: 1 September 1995 Representative for the Applicant: Australian Services Union Counsel for the Applicant: Ross Rankin Solicitors for the Respondent: Arthur Robinson & Heddewicks Counsel for the Respondent: Mr Wheelahan Date of hearing: 8 & 9 May & 5 June 1995 Date of judgment: 1 September 1995