Raymond George Hillyer v Macedon Ranges Shire Council (as successor to the Shire of Romsey) [1995] IRCA 494

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1038 of 1995 B E T W E E N : RAYMOND GEORGE HILLYER Applicant AND MACEDON RANGES SHIRE COUNCIL (AS SUCCESSOR TO THE SHIRE OF ROMSEY) Respondent Before: Judicial Registrar Ryan Place: Melbourne Date: 21 September 1995 REASONS FOR JUDGMENT The applicant seeks reinstatement to the position of tip supervisor and labourer with the Macedon Ranges Shire Council (formerly the Shire of Romsey). He worked with the Shire from 17 September 1986 to 17 December 1994. He claims his employment was unlawfully terminated. In paragraphs 2(d)(e)&(f) of an affidavit sworn 5 January 1995, he states that: (d) the date of the termination of my employment with the respondent was 17 December 1994; (e) the reasons I have (been) given for the termination of my employment was that I fell asleep on the job; (f) I have received written notice of the termination of my employment on 5 January 1995. The applicant gave evidence that on Saturday 17 December he left home at about 8:15 am without eating any breakfast and, although it seems very clear that it was already quite hot and was to become very hot indeed, he did not take any drink with him. His evidence is that if this had been a normal working day, say Monday to Friday, he would have taken a thermos with him. However, he and his wife gave evidence that when he worked at the tip on Saturdays it was their domestic practice to ensure that his lunch and a thermos of drink were delivered to him about lunchtime. The idea seems to have been to give him the variety of hot or cold meals on a Saturday depending on the weather. On this particular Saturday his wife was apparently unable to get access to a car and deliver to the applicant any food or drink. Despite the very considerable heat the applicant states that he drank nothing until about noon when he took three Sudafed tablets washed down with a drink of water from the water tanker which the applicant had driven to the tip. His evidence was as follows: "On Saturday I wait for my wife to bring up my lunch. I don't have anything up until then. If I want a drink of water, as I said before, I have a drink of water from the tank in the fire truck. I prefer not to but if you're caught, you're caught." It was part of his duties to drive the water tanker to and from the tip when he was on duty. It was also part of his duties to utilise the tanker to extinguish any small, controllable fire which might erupt there while he was on duty. The applicant gave evidence that he had never had to use the tanker for that purpose but that was nevertheless part of his duties. The applicant admitted that on this day, as on others, a friend or acquaintance, Colin Duckworth, assisted him at the tip. The applicant claims that, while Mr Duckworth was not authorised or paid to assist him and while he never asked Mr Duckworth to do so, from time to time, particularly if the applicant was writing a receipt, Mr Duckworth would assist by taking money or a coupon from a tip customer. The applicant states that it was very hot indeed, about 35 degrees by midday and 37 or 38 degrees by 2:00 pm and over 40 degrees in the tin shed. His evidence was as follows: "A chap came up and he gave me a couple of cans of beer about 2:00 o'clock...which I drunk. I was very thirsty; I was dry; I was dehydrating." The evidence given by the applicant, in respect of Mr Gerrard McCarthy, the Shire Works Superintendent, arriving at the tip is very uncertain and imprecise. He seems to recall that Mr Duckworth went out and took a coupon from Mr McCarthy and that at that time he was in the shed writing out a receipt and he looked up and saw Mr Duckworth go out and take a coupon from Mr McCarthy. He cannot recall when this occurred but it was after he had consumed what he described as "the two cans of beer". The Court notes that Messrs McCarthy and Crozier in their evidence refer to two stubbies of beer they do not refer to cans of beer. The applicant states that he got up with the receipt he had been writing and he looked out the door. He cannot recall speaking to Mr McCarthy at all on this occasion. The applicant gave unclear evidence as to what happened between observing Mr Duckworth go out to take a coupon from Mr McCarthy and being woken up some time later in the shed by Mr McCarthy who, at that stage, had with him, Noel Crozier, an operator and leading hand with the Shire. The applicant cannot say what happened to Mr Duckworth and he believes that he was woken up about 3:00 pm not 3:30 pm as stated by Mr McCarthy and Mr Crozier. In fact the applicant appears to have no clear recollection of what occurred in the shed. The general tenor of his evidence appears on page 38 of the transcript and is that Mr McCarthy said: "'I will take you home'. We got in the car, I put on my seatbelt, we drove off. He said 'you realise you are sacked', and I said 'yes'." The following exchange then took place: Judicial Registrar: "When he said you realise you are sacked you said yes?" Applicant: "Yes, I said yes" Mr Jackson: "Did you say to him at any time during the time in the shed or in the car, I'm not drunk I was asleep because I took Sudafed or something like that? Did you say anything like that? Applicant: "No, I wouldn't have said that." Mr Jackson: "Do you remember, Mr Hillyer, Mr McCarthy saying to you, 'You are drunk' when he woke you up? Do you remember that?" Applicant: "I don't remember that, no." Mr Jackson: "Do you remember Mr McCarthy asking you for the truck keys?" Applicant: "Yes, I gave him the tip keys and the truck keys. I got in the car." Earlier in examination in chief the applicant was asked what happened with Mr McCarthy and Mr Crozier on the afternoon of 17 December. The following is a record of part of that exchange between the applicant and his Counsel, Mr Lindeman. The exchange is recorded in the transcript at pages 10, 11 and 12. "What is your recollection with respect to those two people (McCarthy and Crozier)? What happened?" "My recollection is that Jed coming inside the shed and Noel Crozier was standing behind him and I woke up as they come, I was disorientated and Jed, I think, said 'hop in the car, I'll drive you home'. I got in his car - not his car actually, it's the Shire's vehicle. He said - I got in the car and he said to me, 'you realise you're sacked' and then he drove me home." "That was the sum total of the discussion?" "That was the sum total." "You say that you woke up as they came into the shed?" "Yes." "So prior to them coming in you had been asleep presumably?" "Yes." "Are you able to say how long you were asleep?" "Three quarters of an hour I would imagine." "So you think you were asleep about three quarters of an hour?" "I think so, yes." "From discussions you had with Mr Crozier or Mr McCarthy on this particular day, did they say to you anything untoward had happened?" "No." "Was there any allegation made to you that money was missing because you fell asleep?" "No." "Were you asked why you fell asleep?" "No, I weren't, no." "Was anything said to you, were you asked whether you had been drinking?" "No, I weren't." "Were you accused of having been drinking at work on that day, at that time?" "Not that I can recall, no." "Did you say you were disorientated when you woke up? Did you stagger about or display the normal signs of being drunk?" "No, could have staggered slightly as I'd just woken up as it were." "What was your position?" "I was sitting in my chair." "So you hopped in the car and what happened after you'd got in Mr McCarthy's council vehicle?" "Put on my seat belt and he drove off and he said, you realise you're sacked and that was it." "Did you protest at that at all?" "No, no." The respondent: 1. denies that the termination was in any way unfair or unlawful 2. asserts the applicant was terminated summarily on 17 December 1994 for a valid reason connected with capacity and conduct 3. led evidence that at approximately 3.30 p.m. on 17 December 1994 Gerrard McCarthy, Shire Works Superintendent, found the applicant drunk on duty 4. categorises the applicant's state of intoxication and the applicant's admission of consuming alcohol while on duty as constituting serious misconduct of a kind such that it would have been unreasonable to require the employer to continue the employment during the notice period prescribed in s170DB of the Industrial Relations Act 1988 (the Act) 5. claims that the employee was given an opportunity to defend himself against the allegation of drunk on duty 6. describes the allegation as simple, uncomplicated and unequivocal 7. identified four occasions on which the applicant had ample opportunity to respond to the allegation, namely: (i) in the shed on site at the tip when discovered in an intoxicating condition (ii) in the car with Mr McCarthy when Mr McCarthy drove the applicant to the applicant's home (iii) in the car with his wife and Mr McCarthy when Mr McCarthy drove the applicant and the applicant's wife to the council depot (iv) on Monday, 19 December 1994, when Neville John Smith, then Shire Director of Technical & Planning Services, attended the applicant's home and gave the applicant an opportunity to put his case before confirming the termination of 17 December and providing the applicant with confirmation in writing 8. claims, in any event, pursuant to s170DC(b) of the Act, that the applicant's conduct and performance was such that the employer could not reasonably be expected to give the employee the opportunity to defend himself against the allegations made. Mr Smith gave evidence that the actual power for termination of employees is delegated by the Council to himself but that he was of the belief that Mr McCarthy would have been of the belief that he had power to terminate delegated to himself. Mr Smith also stated that Mr McCarthy telephoned him on the afternoon of Saturday 17 December and indicated that he had found the applicant intoxicated at the tip, had taken him home and had terminated his employment with the Shire. Mr Smith states that he requested statements from Mr McCarthy and Mr Crozier and that he saw the applicant at his home about 1:00 pm or 1:30 pm on Monday 19 December and sought an explanation from him as to what had occurred on the Saturday. He claims that the applicant indicated that he had been sacked for being drunk at the tip but that in the applicant's view he had only had two stubbies. Mr Smith cannot recall the applicant mentioning that he had been sacked because he had been asleep. Mr Smith stated: "Ray had indicated that he thought that he had been perhaps incorrectly assessed as being intoxicated because he had only had two stubbies. I said to Ray - the information I have from two people is that you were intoxicated. On that basis I must terminate your employment. I handed Ray a letter of termination." The letter of termination is dated 19 December and it is addressed to the applicant and it reads as follows: "Dear Sir, Re: Termination of Employment I refer to your actions at the Lancefield Tip on December 17, 1994 and confirm that you were instantly dismissed at 3.30 pm on that day as advised by the Work Superintendent, Mr G McCarthy. This instant dismissal was on the basis of you being drunk while at work resulting in a total neglect of duty. Mr McCarthy's verbal advice to me on that day and subsequent written statement indicates clearly that you could not perform your duties because you were intoxicated. This advice is supported by Mr N Crozier who Mr McCarthy had witness your actions. The fact that you were also in charge of a Shire vehicle while being intoxicated was also of grave concern. I have no alternative to now formally advise you of this dismissal effective 3.30 pm on December 17, 1994. I am disappointed that this has had to occur however I am of the belief no alternative is available. Yours faithfully NEVILLE SMITH DIRECTOR, TECHNICAL/PLANNING SERVICES" The applicant denies that he was intoxicated while on duty on 17 December. He asserts: (i) there was no valid reason or reasons for the termination based on his conduct or the performance of his duties and/or his failure to accept the lawful instructions of the respondent in respect of the manner in which he was required to carry out his duties (ii) the fact that he fell asleep was due to a combination of factors most of which were outside of his control and included the extremely hot weather, lack of drinking water, a tin work shed without electricity or a fan or any method of cooling, no lunch provided as previously arranged, no phone or other means of making or receiving messages and hay fever attributable in part to the dust in the immediate working environment. The applicant claims that when he was awoken by Mr McCarthy, he was disorientated but was not drunk and was not breath tested. The applicant further claims that, in the circumstances, his termination was harsh, unjust and unreasonable and that, at 53 years of age, blind in one eye and, as a sole bread winner living locally, he has no prospects of finding alternative employment and he wants reinstatement to his previous position or to an equivalent position and he also seeks compensation for salary lost due to what he says was the unlawful termination of his employment. The applicant made a series of allegations against his employer. The allegations, in effect, are that the respondent was responsible for the applicant falling asleep while on duty on 17 December. The applicant asserts that the respondent failed to: (i) conduct a genuine investigation into the alleged misconduct; (ii) provide a reasonable opportunity to the applicant to respond to allegations; (iii) seek the applicant's reasons for his conduct; (iv) provide a clear instruction and understanding of consequences of consumption of beer on the job; (v) provide any counselling to the applicant about perceived weaknesses in the performance of his duties; (vi) provide reasonable facilities for work; (vii) provide clean drinking water, ablution and reasonable toilet facilities; (viii) provide any means for respite or relief from extreme heat. (ix) provide any follow-up, discussion or counselling in respect of an incident of alleged unsatisfactory work performance on 28 January 1994; (x) undertake discipline in a fair and frank manner; (xi) provide the applicant any offer of training, assistance or help to prevent recurrence of any mistake or error; (xii) provide the applicant with an appropriate means of communication from the work site. The Court finds no substance in any of the allegations except the final claim of failure to provide the applicant with an appropriate means of communication from the work site. Outside of Shire Office hours radio communication should be arranged with a 24 hour emergency number or referral source but this failure is quite irrelevant to the grounds for termination. Allegations (i) to (v) are rejected and, in the context of a dirty, dusty, outdoor site, so too are allegations (vi) to (viii). There was no evidence led to substantiate allegations (ix) to (xi) but in any event they are irrelevant. After a careful consideration of all the evidence the Court is satisfied that: (i) the applicant was drunk on duty (ii) the applicant knew that drinking on duty was quite contrary to his responsibilities in charge of a site which could readily constitute a fire hazard (iii) the respondent through Gerrard McCarthy carefully and thoroughly investigated the applicant's condition at work before driving him from the site and called in Noel Alan Crozier another Shire employee to confirm the applicant's condition (iv) McCarthy and Crozier reported their observations and actions accurately and fairly to their superior Neville John Smith and wherever their evidence conflicts with that of the applicant their evidence is preferred to that of the applicant. (v) the Court has had the advantage of a transcript and finds it unnecessary to detail the observations of Messrs McCarthy and Crozier but accepts their evidence that the applicant was intoxicated and in an unfit state to adequately discharge his duties. (vi) the applicant was given ample opportunity to respond to the allegations both prior to termination on 17 December and again on 19 December prior to the confirmation of the termination of employment effected on 17 December (vii) the termination was for valid reason (viii) the termination was not harsh, unjust or unreasonable. Counsel for the applicant seemed to place some emphasis on the fact that Mr Hillyer took three Sudafed tablets about midday. The tablets were taken to relieve hay fever and a sinus condition. It is not entirely clear to the Court what reliance or relevance is placed on the consumption of Sudafed. It may be that Counsel for the applicant argues that the Sudafed is a contributing factor along with the heat and lack of food and an allegedly modest consumption of beer which led to the applicant falling asleep and being disorientated but not drunk when woken by Mr McCarthy. The Court has already found that the applicant was both drunk and disorientated. There is no evidence that the Sudafed contributed to the intoxication and disorientation but if it did the applicant can draw no comfort from that. It was a part of his duties and it was one of his responsibilities to remain alert and sober when on duty in charge of the tip. ORDER The application is dismissed. I certify that this and the preceding pages are a true copy of the reasons for judgment of Judicial Registrar Ryan. Associate: Dated: 21 September 1995 Appearances: Solicitor for the Applicant: Hep Steel Counsel for the Applicant: A Lindeman Solicitor for the Respondent: R Jackson of Maddock Lonie & Chisholm Date of hearing: 15 & 16 June 1995 Date of judgment: 19 September 1995