Paul Janicek v ICI Dulux Australia [1995] IRCA 559

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Claim of UNLAWFUL TERMINATION - Review of Judicial Registrar's decision - Alleged failure to provide procedural fairness - Some allegations of alleged misconduct put to employee in circumstances where he could make a defence, but not the most serious allegations - Procedural fairness not granted - Employee terminated peremptorily for alleged "serious misconduct" - Whether Judicial Registrar erred in failing to consider cumulative effect of employee's conduct - Whether the conduct, viewed cumulatively, constituted "serious misconduct" - Remedy - Whether reinstatement was rendered impracticable by employee's actions in writing protest letters to management or parading with placard in company's car park - Whether Social Security payments constitute "remuneration" that ought to be taken into account in assessing compensation under s.170EE(1)(b)(ii) of Industrial Relations Act. Industrial Relations Act 1988, ss.170DB, 170DC and 170EE. PAUL JANICEK v ICI DULUX AUSTRALIA No. VI.94/1955R CORAM: WILCOX CJ PLACE: MELBOURNE DATE: 4 SEPTEMBER 1995

IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. VI. 94/1955R VICTORIA DISTRICT REGISTRY ) BETWEEN: PAUL JANICEK Applicant AND: ICI DULUX AUSTRALIA Respondent CORAM: WILCOX CJ PLACE: MELBOURNE DATE: 4 SEPTEMBER 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The orders of Judicial Registrar Staindl made on 1 March 1995 be confirmed subject to the addition at the end of order 2 of the words "or some equivalent position". 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 ) No. VI 94/1955R VICTORIA DISTRICT REGISTRY ) BETWEEN: PAUL JANICEK Applicant AND: ICI DULUX AUSTRALIA Respondent CORAM: WILCOX CJ PLACE: MELBOURNE DATE: 4 SEPTEMBER 1995 EXTEMPORE REASONS FOR JUDGMENT WILCOX CJ: This is an application for review of a decision of Judicial Registrar Staindl given on 1 March last. The Judicial Registrar held that the applicant, Paul Janicek, had been unlawfully terminated by the respondent, ICI Dulux Australia, on 12 October 1994. The dismissal followed an incident that occurred on the previous day, the detail of which I need not set out. The Judicial Registrar was of the view that there were two breaches of the Industrial Relations Act 1988. The first breach, he thought, was a failure fully to comply with section 170DC of the Act, which reads as follows: "170DC An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself or herself against the allegations made; or (b) the employer could not reasonably be expected to give the employee that opportunity." The Judicial Registrar heard evidence that a meeting occurred on 12 October involving Andrew Stinson, the human resource manager of the employer, Derek Balderstone, another ICI Dulux employee, who was the stock control planner at the time, and a union official who was present in order to protect the interests of the employee, Peter Abel. These three men separately interviewed two other employees, a Mr Williams and a Mr Hanby, and asked them questions about the incident that had occurred the previous day. After the second interview, Mr Stinson went and found Mr Janicek and brought him into the meeting. There was then a discussion. At the end of the discussion, Mr Janicek was sent into an adjoining room and the three men decided that Mr Janicek's employment should be terminated. The Judicial Registrar said this about the question whether there was compliance with section 170DC: "I accept that the applicant was aware that his continued employment was in jeopardy. I also accept that the applicant was made aware in general terms of three of the four allegations said to justify his dismissal. These three are that he slept on duty, did not report to the health centre and left work without reporting it to a supervisor. However, I am not satisfied that it was put to the applicant that he had feigned an injury and falsely accused two fellow workers. In addition to the evidence already mentioned, I rely in particular on that given by Mr Balderstone for these findings. It seems to me that all of the allegations should have been put clearly to the applicant. I found that he was made aware in general terms of three of the allegations, but it would have been desirable for these to have been clearly spelt out at the outset. I found one of the allegations was not put to him and it appears to me, and I might say, to Mr Stinson, that this was the most important allegation. It follows that the applicant was present at the interview not knowing about one important allegation made against him. In this situation, it could hardly be said that he was accorded procedural fairness and in this regard, the employer has not complied with section 170DC of the Act." In support of the application for review, counsel for the employer say that the Judicial Registrar's finding of failure to put to Mr Janicek that he had feigned an injury and falsely accused two fellow workers overlooks evidence to the contrary by the three men to whom I have referred. Mr Abel and Mr Balderstone assented to leading questions by counsel for the employer that included a reference to feigning an accident. The evidence of Mr Abel is in this form: "Right, now, tell me if I am right or wrong, but when it first commenced, that is when all four of you men were in the room, in other words when Mr Janicek was first brought into the room, tell me if I am right or wrong, but Mr Stinson advised that there had been some sort of investigation or inquiry conducted into what occurred on 11 October?‑‑‑Yes that's correct. Right, and you also indicated that there had been some witnesses who had said that Mr Janicek had fallen asleep, feigned an accident concerning the throwing of cans. You are agreeing with that? Sorry?‑‑‑Yes. Just remember the direction about the microphone does not pick up nods. Sorry, I am not meaning to interrupt you. Also there was the point about failing to go to the health centre?‑‑‑Yes. And also the point about going home." After a couple of other questions which do not add any enlightenment, counsel asked: "But you were not in a position to with any great detail say what was said and what was not said and how it was said?‑‑‑Well, basically, just - you know, he still - he claimed that there were cans thrown at him and he suffered a concussion. And he certainly said that, did he not?‑‑‑He certainly did. And he indicated the cans had hit him?‑‑‑Yes. Mr Balderstone's evidence on the point was in this form: "Do you remember the four issues, feigning an accident, leaving the workplace without authorisation, falling asleep at the machine and failing to go to the health centre as being specifically raised with Paul prior to them being shown in the other room?‑‑‑Yes. How can you be sure about that when you cannot be sure about a whole range of other events that happened in that interview?‑‑‑When summary dismissal was mentioned to Paul, it sort of highlighted to me the urgency of the situation. Prior to that it hadn't sort of sunk in with me. That's when I seem to remember taking these things in, that he did mention the company policy. The company policy in relation to what?‑‑‑Of reporting all injuries which we, you know, tell all our staff for the consequences." It will be noted that the point that triggered Mr Balderstone's memory was the company policy concerning reporting of injuries. This had nothing to do with feigning an accident. It will also be noted that, in neither of the lists put to the witnesses, was there a reference to false accusations against the two other workers. On any view, this would be the most serious aspect of the whole matter. In evidence in chief Mr Stinson was asked by the company's counsel who was present. Then he was asked to tell the Judicial Registrar what occurred. He answered: "Well, I asked Mr Janicek if he could give me his account of what happened yesterday. I informed him that we had seen two witnesses already and that what we'd discovered from those investigations indicated that he may have fallen asleep on the job, that he had certainly left the site without seeing the health centre, that he hadn't gained the permission of his team leader and I asked him to recount what had happened. At this stage I said he was facing the possibility of summary dismissal and then Mr Janicek said he'd been hit in the head by some cans yesterday or someone was throwing cans, that he hadn't gone to the health centre." Mr Stinson went on to give Mr Janicek's account of how he had telephoned his co-ordinator and discussed with her going to see his own doctor. It is significant that, when asked to give his account, Mr Stinson failed to mention putting to Mr Janicek any allegation about feigning an accident or making false accusations. The evidence includes a document marked exhibit A9. It was produced at the hearing by the union officer who appeared for Mr Janicek. From evidence given today by Mr Stinson, it appears that, a couple of days after the dismissal, a union organiser saw him. He gave the union organiser a copy of notes he had written, apparently partly on the day of the incident (11 October) and partly on the day of dismissal (12 October). Paragraphs 10 and 11 of exhibit A9, which is apparently a copy of the document given to the union organiser, are as follows: "Mr Janicek followed to the office. At this stage it appeared that the senior delegate had already informed Mr Janicek of the possibility of dismissal." I interpolate that the senior delegate is apparently Mr Abel: "I informed Mr Janicek that he was here to explain yesterday's events. Mr Janicek said someone throwing cans had struck him in the head. He said he informed his team leader that he was going home after being injured. He didn't go to the health centre and said he would see his own doctor." It will be noted that there is no reference to Mr Stinson putting to Mr Janicek any allegation of feigning an accident or making false accusations. It emerged today that there is another version of this document. The second version extends only to the notes of 12 October. The notes pertaining to 11 October are not attached to the new document, which I marked exhibit 1. Paragraphs 10 and 11 and 12 of that document read: "Mr Janicek followed to the office. At this stage it appears that the senior delegate had already informed Mr Janicek of the possibility of dismissal. I informed Mr Janicek that I had conducted an investigation into yesterday's events. The investigation indicated that he had staged an accident and then left the site without informing his team leader or reporting any accident to the health centre. He was further informed that there appeared to be some indication that he was previously asleep on the job. Mr Janicek said someone throwing cans had struck him in the head. He said he informed his team leader that he was going home after being injured. He didn't go to the health centre and said he would see his own doctor." It will be noted that the difference between the two documents is that the latter document includes a statement that it was put to Mr Janicek that he had staged an accident. According to Mr Stinson, he wrote the fuller version a few days after he wrote the earlier version. However, it appears that, on 9 November 1994, there was a hearing before the Chief Commission Administration Officer of the Employee Relations Commission at which the employer was represented by Ms M Kydd, the personnel manager. The transcript does not reveal who else attended apart from Mr Janicek, who appeared on his own behalf. Mr Stinson says he was not present. I have no reason to doubt that evidence. There is some suggestion he was overseas at the time. What is interesting is that Ms Kydd gave an account to the Chief Commission Administration Officer, which she said came from Mr Stinson's notes, and which followed the earlier version, not the later. It is, of course, possible that Mr Stinson wrote the later document before 9 November but it was not on the file that day; although why this would be so, I do not know. It is unnecessary to say more than that, particularly in the light of this evidence, I understand and agree with the Judicial Registrar's scepticism as to whether the critical suggestion was put to Mr Janicek. It is true that Mr Abel and Mr Balderstone assented to rolled-up leading questions in which there were references to feigning an injury, although not a reference to falsely accusing fellow workers. But not much weight should be placed upon that fact. The main point is that Mr Stinson, who was in charge of the investigation, did not claim in his evidence to have put this allegation, and it was strenuously denied by Mr Janicek. Accordingly, I am of the view that the Judicial Registrar was correct in saying that there was a failure to comply with s.170DC of the Act. Counsel say this does not matter; it would not have made any difference; Mr Janicek would not have said anything; he would have been dismissed anyway. That is not the test. I emphasise that s.170DC does not require any particular formality. That has been said time and again. What is important is that the substance of the relevant allegation be put to the employee under circumstances where he or she has the opportunity of putting a defence. It is not material to determine whether the employee would have made a defence. The employer's obligation is to put the allegation, so as to give the employee the opportunity of doing so. In the present case, I think the critical allegation was not put. This is enough to support a finding of unlawful termination. The other ground on which the Judicial Registrar acted is that he noted that Mr Janicek was summarily dismissed; but he thought that the conduct alleged against him did not amount to serious misconduct within the meaning of s.170DB(1)(b): "misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period". The argument put on behalf of the employer in respect of this part of the case is that the Judicial Registrar erred in looking at each aspect of misconduct separately, rather than all aspects cumulatively. I do not think this is a justifiable criticism. It is true that the Judicial Registrar considered each element of the complaint separately and attempted to put it into context. But the whole of the events of 11 October were within a short compass. It was a simple story and it was for the Judicial Registrar to form a judgment as to whether the conduct which he found to have occurred amounted to serious misconduct. I think he did so. However, if I am wrong, and the Judicial Registrar looked at the items separately without considering their cumulative effect, I am prepared to say, considering the cumulative effect, that I do not think that the conduct amounted to serious misconduct. I could understand it if the employer had decided, after giving Mr Janicek an opportunity to be heard, that the conduct warranted termination on notice of Mr Janicek's employment. But I do not think his conduct could properly be described as "serious misconduct", so as to entitle the company to terminate him peremptorily. I come to the matter of remedy. Mr Janicek seeks reinstatement and that is the order the Judicial Registrar made. However, counsel for the employer suggests that reinstatement should not be ordered. The major ground of that suggestion is events that have occurred since the Judicial Registrar's decision and pending the hearing of this application for review. The review hearing has been delayed longer than I would have wished because of difficulty in obtaining judge time in the Court. Mr Janicek, during this time, has sent letters to various people in the company, including the managing director and other officers, complaining of the way he has been treated and, in particular, making allegations against Mr Stinson. He used the word "misrepresentation". Counsel say this was unfair, given that the Judicial Registrar did not find that Mr Stinson misrepresented the position. Mr Janicek also, on a number of occasions, paraded up and down the company's car park with a placard saying he had been unjustly dismissed. The statement was true in the light of the Judicial Registrar's finding, but it was not a wise course of action. Counsel also submit that it would be difficult for Mr Janicek to work in close proximity to Mr Williams and Mr Hanby, given the fact that he has, in substance, denied their account of the events of 11 October. In relation to reinstatement, I am influenced to a considerable extent by the size of the company. The respondent is a major employer. It employs some 300 plant operators at its Clayton factory, where the applicant was employed. Counsel accept that it would be possible for Mr Janicek to be employed in a part of the factory remote from Mr Williams and Mr Hanby. They say that, nonetheless, he would come into contact with Mr Williams and Mr Hanby from time to time. No doubt that is so. But I see no reason to think that there would be any unfortunate result if he did. They need not have anything to do with each other, if that is their wish. As to the letters that have been sent to management and the parading in the car park, this will only be a problem if one of the parties makes it a problem. I think Mr Janicek is an intelligent man. He will understand that the worst thing he could do would be to pursue complaints, demonstrations and accusations. If he is sensible, he will get back on to the job and put his head down and carry out his normal duties and allow this incident to recede into the past. I see no reason to doubt that he will take that course. If management makes the complaints a problem, that will be their decision. It would be wrong to say that reinstatement was impracticable because management might create a problem and persecute an employee for protests he has made. I hasten to say that I am not suggesting that management will do that. I see no reason to think that anybody in management would be so unfair or foolish. My belief is that there will be no problem and I do not think these fears should be allowed to stand in the way of reinstatement. Reinstatement is practicable in the present case and is the correct order. There was some discussion as to whether the orders made by the Judicial Registrar were correct. Counsel for the company suggested that any Social Security payments ought to be deducted from the remuneration payable under s.170EE(1)(b) of the Act. I do not think this approach is correct. The paragraph uses the word "remuneration". That seems to indicate that the Parliament had in mind only payments for services rendered. It may be appropriate to take into account remuneration earned by the employee, with another employer, following the termination and before reinstatement. That would truly be "remuneration". But I do not think Social Security payments are "remuneration". It is important to observe that, under s.170EE(1)(b)(ii), the Court is not assessing "compensation", as is the position under s.170EE(2). However, after the matter was raised, Mr Janicek indicated he had neither sought nor received Social Security payments. Counsel for the respondent accept this. Accordingly, the matter is academic in this case. I think the appropriate orders are those made by the Judicial Registrar. I dismiss the application for review and confirm orders 1, 2 and 3 made by the Judicial Registrar on 1 March 1995. [Counsel addressed.] Counsel informs me that the particular machine that Mr Janicek was operating prior to his termination is no longer used by the company. The Judicial Registrar made an order that the respondent: "Reinstate the applicant by reappointing him to the position in which he was employed immediately before the termination of his employment." In order to avoid any difficulty or confusion I agree with counsel that it would be wise for this to be amended by adding the words, "or some equivalent position" at the end of this order. Subject to that amendment, I confirm the orders made by the Judicial Registrar. I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment of Chief Justice Wilcox. Associate: Dated: 4 September 1995 APPEARANCES Counsel for the Applicant: Self Counsel for the Respondent: R R S Tracey QC and O D Holdenson Solicitor for the Respondent: Corrs Chambers Westgarth Date of hearing: 4 September 1995