DIHM & ALHMWU v G J & K Cleaning Services Pty Ltd [1995] IRCA 525

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - Valid Reason - Adequate Warning Industrial Relations Act 1988, S170DC, S170DE, S170EA CASES:

Nicolson and Heaven and Earth Gallery (1994) 126 ALR 233

Bostik (Australia) Pty Ltd v Gorgevski (1992) 41 IR 452 at 465

Bryne and Frew v Australian Airlines (1994) 52 IR 10

Janicek v ICI Dulux Australia IRCA (1 March 1995) (unreported)

DIHM & ALHMWU v G J & K CLEANING SERVICES PTY LTD No. VI-1471/95 Before: Ryan JR Place: Melbourne Date: 21 August 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-1471/95 B E T W E E N: TREVOR DIHM & ALHMWU Applicant AND: G J & K CLEANING SERVICES PTY LTD Respondent RYAN JR MINUTES OF ORDER 27 SEPTEMBER 1995 THE COURT ORDERS THAT: The application is dismissed. 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 VICTORIA DISTRICT REGISTRY Matter No VI-1471/95 B E T W E E N: TREVOR DIHM & ALHMWU Applicant AND: G J & K CLEANING SERVICES PTY LTD Respondent COURT: RYAN JR PLACE: MELBOURNE DATE: 27 SEPTEMBER 1995 EX TEMPORE JUDGMENT Trevor Dihm and his Union ALHMWU (Miscellaneous Workers Division) (the Union) claim that Mr Dihm was dismissed from his position as a cleaning supervisor at the large Barton College of TAFE for no valid reason. They also claim that Mr Dihm was denied procedural fairness and was denied the opportunity to respond to allegations made against him (to the extent that such allegations were made). The applicant and his Union claim that: 1. on Friday 27 January 1995 he was dismissed from the afternoon component of his duties on the basis of complaints made about the state of toilets at the workplace 2. on Monday 30 January he was dismissed from the morning component of his duties after Jan Rhys Olsen, the Operations Manager, advised him that he had plans for the college and those plans did not include the applicant. The respondent paints a very different picture. Essentially this is that: 1. the applicant was recruited to a position with three distinct components 2. the components were (a) supervisor of the morning cleaning shift (b) specific cleaning tasks to be undertaken by the applicant in conjunction with but separate from his supervisory role (c) a basic cleaner's job on an afternoon shift 3. Mr Dihm was directed, instructed, counselled and warned on numerous occasions between 10 August 1994 and 25 January 1995 in respect of performance and specific defects in cleaning of the college campus 4. Mr Dihm sometimes disagreed with instructions, directions and requests, often ignored such instructions, directions and requests and was described by his Area Supervisor as sometimes reacting in a hostile manner. Mr Tee appeared as an employee of the Union and on behalf of both Mr Dihm and the Union. Mr Olsen, the respondent's Operations Manager, appeared for the respondent. Mr Dihm and the Union do not concede that Dihm was directed, instructed, counselled and warned on numerous occasions between August 1994 and January 1995. Mr Tee submitted that: 1. ten to twelve employees were expected in a morning shift of 2˝ to 3 hours to clean a large complex comprising 300 rooms, 5 showers, 31 toilet blocks with 89 pans, 75 hand basins and a dozen or more urinals 2. the pans, urinals, basins and showers alone comprise 181 items and, if allocated to one toilet cleaner dedicated solely to that task on the morning shift, would have allowed 44.7 seconds for cleaning each item 3. the method of operation was such that items which were identified as unclean on a daily basis or during weekly formal inspections were to be cleaned or fixed as soon as practicable. The thrust of that submission was that unclean items and other cleaning and tidying tasks identified on a daily basis, and more particularly at formal meetings, could not, in practicable terms, be treated as a failure to perform an adequate cleaning task provided that these items were attended to as quickly as resources allowed. It was also an integral part of this submission that the identification of these cleaning and tidying tasks and their referral to Mr Dihm as the morning site supervisor could not be fairly or accurately categorised as directing, instructing, counselling or warning Dihm that cleaning and cleaning supervision were inadequate. Mr Tee sought to classify such identification and referral as no more than a reasonable and practical way of attending to a very large cleaning task with what the applicant and his union claim were inadequate resources. The Court notes in respect of this somewhat ingenious submission that: 1. while the morning shift may have only contained one cleaner specifically dedicated to cleaning toilets while Dihm was supervisor, it was Mr Dihm's responsibility to allocate the morning shift resources to ensure that the required tasks were undertaken 2. Mr Dihm described the staffing as "tight without a great deal of flexibility" but on his own evidence he did not seek additional resources or even call for a replacement if one morning cleaner failed to turn up but rather, in that situation, "spread the load" among existing staff 3. the cleaning contract or agreement between the respondent and Barton College (Exhibit R3) is quite specific in Schedule 1 and Appendix A as to what areas are to be cleaned and the works to be performed on a daily basis. There is no provision for this very substantial daily cleaning task or any part of it to be carried out on an exception or identification or complaint basis except to the extent that spot cleaning can be so described. Floors, pans, seats, urinals, partitions, mirrors, ledges, basins and cafeterias are to be cleaned daily. Toilet paper, soap and paper towels are to be checked twice daily and replaced as required. Bins are to be emptied daily. There is provision for daily sweeping, mopping, dusting, polishing, vacuuming and spot cleaning. The Court does not accept that the daily identification of cleaning and tidying tasks and paper and soap replacement, when it occurred, or the weekly identification of such defects by way of formal inspections, which indisputably did occur throughout the year, (but not from 14 December 1994 to 1 February 1995), constituted a form of cleaning to be carried out as soon as practicable. The Court finds that it was expected and required that the respondent, as contractor, would tend to all this specified cleaning on a daily basis. That is not to say that the Court either accepts or rejects the proposition that adequate resources were provided to effectively clean to the required standard but rather that the Court finds that the applicant was allocated the responsibility to ensure that the respondent carried out the daily cleaning tasks to the required standard. The Court does not accept that this responsibility was what Mr Tee described as "an impossible task". If the resources available to the applicant were inadequate he should have taken that up with his area supervisor, George Tsimbouras, or the Operations Manager, Mr Olsen. The applicant and his union also claimed that no clear or valid reasons existed or were provided for the termination. After considering the evidence of Dihm, Tsimbouras, Olsen and a director of the respondent company, George Kourounis, the Court has concluded that valid reasons for the termination did exist and that those reasons were the failure of the applicant to ensure an adequate standard of cleaning of the Barton TAFE campus from August 1994 to mid December 1994 and his failure to complete within budget or within a reasonable time the annual stripping and sealing work commonly carried out during the summer college vacation. The Court has also concluded that the applicant's inadequate performance in respect of general cleaning was constantly brought to his attention through a number of discussions with Mr Tsimbouras but most particularly by way of the weekly inspections which usually involved Dihm, Tsimbouras and Keith Adams, a college employee, who had special responsibilities for property and facilities management and was a Responsible Officer as defined in the cleaning contract, Exhibit R3. Mr Tee argued that not only was there a lack of evidence of inadequate performance by the applicant but also that, if there were allegations of inadequate performance, they were not put to the applicant or, if put, were not put in such a way as to give him a reasonable opportunity to respond pursuant to S170DC of the Industrial Relations Act 1988. These arguments relied at least in part on a suggested requirement that the allegations be put by Olsen and at the time when a decision was being made by Olsen to terminate the applicant for inadequate performance. In respect of the allegations of inadequate general cleaning, I doubt that they were ever put directly by Olsen but I accept the evidence of Tsimbouras that he often raised these matters with Dihm and I find that, in part this provided a compliance with S170DC. I am bound to say that I doubt that those direct discussions between Tsimbouras and the applicant would have alone constituted adequate compliance with S170DC. I say that because Tsimbouras did not strike me as a strong or forceful area supervisor when confronted with and compared to the applicant who, in his demeanour and general evidence, presented as strongly opinionated, determined and somewhat aggressive. Indeed, when pressed by the Court, Olsen described Tsimbouras as "a pussy cat". However, in terms of adequate opportunity to respond to allegations of inadequate performance in supervision of general cleaning tasks, I have no doubt that the system of weekly formal inspections (Exhibits R1 and R2) provided the applicant with that opportunity. My conclusion, especially from his own evidence, is that the applicant did not accept that it was necessary or reasonable that the cleaning should be carried out to the standard specified in the contract. I reach that conclusion without making a finding that the applicant had studied in detail or entirely absorbed the specific requirements in the contract. However, I find that he was given that opportunity. If he did not do it, he should have done it. If he did do it, he did not accept that reasonably substantial compliance with the contract was necessary or reasonable or that it was his responsibility to ensure such compliance. It was his responsibility. I find the weekly inspections and the Tsimbouras discussions, (weak and ineffectual though they may have been), together provided the opportunity for the applicant to be aware of his responsibilities and to respond to what were clear requirements placed on him. In respect of incidents in December and January which may well have provided the final trigger for the termination, namely the failure to carry out stripping and sealing on time and within budget, I accept the evidence of Olsen. I find him an honest witness, albeit one who may not have ensured that Tsimbouras was effective and accountable in the supervision of Trevor Dihm. I accept that on 25 January 1995 Olsen: 1. arranged a meeting with Tsimbouras and the applicant in the college canteen 2. failed to resolve the problems which had arisen in the stripping and sealing budget and timetable 3. through that meeting gave the applicant an opportunity to respond to allegations that his performance in that area was unsatisfactory 4. offered the applicant alternative employment in the local area at Bayside Council Brighton, Glenhuntly Tram Depot, Melbourne Water Carrum and Phoenix Cal Life Bentleigh, which alternative employment the applicant declined. I also accept that earlier in mid December Olsen had tried to resolve the general cleaning inadequacies by offering the applicant enlarged afternoon full-time duties, which offer was also declined. The Court noted a number of inconsistencies in the applicant's evidence and an inability to recall a number of matters where a clearer recollection could have been expected. Where his evidence conflicted with that of Olsen or Tsimbouras, the evidence of the latter was preferred. The following summarised extracts are from the evidence of Mr Tsimbouras: 1. "there were complaints every day plus more when we did inspections" 2. "my first reaction if there was a complaint from Adams was to ring Trevor. I tried the pager, if unsuccessful I telephoned at home. I did not often phone him successfully at the college in the morning" 3. "I always filled out the form, i.e. the formal report. I used to promise Adams in Dihm's hearing to fix the agreed matters. I think Dihm had notes. I was filling in the form" 4. "I brought outsiders in - Yvonne, Olive and Laura for the dusting of the cobwebs two to three days fulltime 8 hours a day about 48 to 50 hours. I introduced the ladies to him (Dihm)" 5. "the foyer was often/usually unsatisfactory. I told him (Dihm) every time" 6. the stairs were unswept and unmopped...every time I saw him I told him" 7. "I spoke to Dihm specifically on the toilets. He did not provide a satisfactory response" 8. "he never asked me to provide additional assistance" 9. "I told Trevor to get the standard up" 10. "rooms were missed frequently" 11. "I spoke to Dihm re the difficulty of paging. I had no choice but to accept his answer. I would say 'answer the pager'. I can't remember his response. I used to remind him. He contacted me on the pager via the office a couple of times and on the mobile a couple of times too. I can't specifically remember" 12. "we spoke (re spraying the gum) many times" 13. "I told him to get them (the cobwebs) removed" 14. "he was 'getting specific things' off the inspection report. He would get a copy of every inspection report. He got a copy. He always got the report" Even if Mr Dihm did not always get the inspection reports and, on a balance of probabilities, the Court finds he usually did get the reports, the Court nevertheless finds his presence at each inspection and his own evidence of the notes he took at those inspections constituted constant and adequate warning and advice. The Court finds Mr Tsimbouras directed Mr Dihm on a number of occasions but probably not as often as the former claims and probably not with any real strength or firmness. Was the applicant given an opportunity to defend himself against the allegations made? This is not a case like Nicolson and Heaven and Earth Gallery (1994) 126 ALR 233 where the most perfunctory and informal conversations on two occasions were held not to have satisfied S170DC(a). The principle espoused by the Chief Justice in Nicolson is of course very much applicable and was stated there at 243 as follows: "the relevant principle is that a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well established in public administrative law. It was accepted into international law when Article 7 was inserted in the Termination of Employment Convention. Section 170DC is directly modelled on Article 7. The principle is, I believe, well understood in the community. It represents part of what Australians call 'a fair go'. In the context of S170DC, it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself (against the allegations made); that is, the particular allegations of misconduct or poor performance that are putting the employee's job at risk. S170DC(a) is not satisfied by a mere exhortation to improve" However, the Chief Justice also pointed out at 243 that S170DC(a) does not require any particular formality. In this case, unlike in Nicolson, particular allegations were put on numerous occasions. I accept the evidence of Olsen that he directed Tsimbouras to put to the applicant these constant, regular complaints of cleaning defects identified in formal weekly inspection reports. (Exhibits R1 and R2). I accept the evidence of Tsimbouras that he put these matters to the applicant on many occasions. Mr Tee has suggested that, to quote Gray J in Bostik (Australia) Pty Ltd v Gorgevski (1992) 41 IR 452 at 465: "(The) dismissal (was) harsh unjust and unreasonable because it is not justified by any sufficient cause (and) because the employer has failed adequately to investigate the facts" The Court has already found that it was justified by sufficient cause because it has found that there were valid reasons for the termination. The Court has also found, or is in the process of finding, that there was adequate investigation. In that respect, Mr Tee cites Gray J in Bostik at 465 where he states: "An employer genuinely investigating an allegation of misconduct or neglect of duty, or some other act or omission which might provide a ground for dismissal, is required to carry out a proper investigation, and not merely go through the motions. The employer is required to ascertain whether there are any mitigating factors, either associated with the alleged ground for dismissal, or arising from the employee's past record and future prospects." Firstly, the weekly inspections, the Tsimbouras directions, even if lacking force and firmness, and the discussion on stripping and sealing with Olsen, were far more than merely going through the motions. Secondly, I cannot detect mitigating factors, given the weekly inspections from August to December, inspections at which the applicant admits he took notes, and even on his own evidence, where four or five of the inspection reports were given to him. The Court also notes that Tsimbouras states all the reports were given to the applicant and the Court has already expressed a preference for that evidence over that of the applicant. Thirdly, the Court finds nothing in the applicant's past record, particularly in cleaning management and supervision, which justified or mitigated the inadequacies in cleaning supervision and performance displayed from August 1994 to January 1995. Fourthly, some reliance was placed on the applicant's age and allegedly poor future employment prospects. However, in this respect, the Court turns to the majority judgment in Bostik at 459 where Sheppard and Heerey JJ state: "These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct." The Court notes the offers of fulltime employment and alternative local employment both rejected by the applicant. The Court does not accept that Bryne and Frew v Australian Airlines (1994) 52 IR 10 or Janicek v ICI Dulux Australia IRCA (1 March 1995) (unreported) Staindl JR is authority for the proposition that the investigation in this case warranted further investigation with other cleaning staff or specific warning by Olsen of employment in jeopardy. The circumstances in Byrne and Frew and indeed in Janicek, were very different to this case where an experienced cleaning supervisor with considerable earlier management experience failed to rectify numerous cleaning defects identified on many occasions in many cleaning inspections. This termination was not harsh, unjust or unreasonable and the application will be dismissed. The order of the Court is that the application is dismissed. Having said that, the Court believes the respondent would be in a stronger position in future to counsel and warn supervisors if the supervisors were required to sign the weekly inspection reports and if the Operations Manager ensured the area supervisors firmly and clearly stated requirements and defects to supervisors and documented such statements. In other words, area supervisors should be accountable for their supervision of site supervisors and the Operations Manager should be accountable for his supervision of the area supervisors.