Kenneth John Aranha v Australian Wiper Co Pty Ltd [1995] IRCA 614

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3484 of 1995 B E T W E E N: Kenneth John ARANHA Applicant A N D AUSTRALIAN WIPER COMPANY PTY LTD Respondent REASONS FOR DECISION 17 November 1995 PARKINSON JR This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent as a driver/salesmen on 1 March 1995 and his employment was terminated by letter dated 21 June 1995 with one weeks notice, during which period attendance was not required. The applicant was initially engaged on a casual basis as required, and subsequently was employed on a full time permanent basis. In the course of his employment a substantial amount of the applicant's time involved driving a van and making deliveries to customers. The applicant's evidence is that in about May 1995 he complained to the respondent's manager about exhaust emissions in the cabin of his vehicle. The evidence is that various steps were taken by the respondent to remedy any defects causing such a problem. It is not submitted on behalf of the applicant that the respondent was unresponsive to the applicant's concerns. The evidence was that the depot manager, Mrs Powell, arranged for the vehicle to be serviced, repaired and assessed on a number of occasions. The applicant continued to complain of fumes in the vehicle, and his evidence was that on a number of occasions he was adversely affected to the point of illness. The evidence was that as a result of a chest disorder the applicant had attended on three occasions at Monash Medical Centre, where he remained for observation for short periods. The respondent contests that there was any relationship between the applicant's illness and the respondent's vehicle, and attributes the applicant's illness to his cigarette smoking. Whilst there is currently a workcare dispute between the parties, it is conceded by the applicant's counsel that there is no evidence to suggest that the applicant's illness or workcover claim was of itself the reason for the termination of the applicant's employment. In an attempt to assist the applicant, and with his consent, the respondent organised for the applicant to be attended by a doctor known to it. This appointment was arranged to take place on 16 June 1995. Unfortunately, on the day of the appointment there was a delay. The applicant, having made himself available for the appointment whilst still unwell, arrived at work for an 11.00am appointment only to be informed that it would not occur until 1.00pm. The applicant waited for the 1.00pm appointment and was driven to the doctor's surgery by Mr McDonald, a director of the respondent. On announcing their arrival, Mr McDonald and the applicant were informed that there might be a short delay. The applicant indicated that he was not prepared to wait, and immediately left the surgery. Mr McDonald then spent some time driving around the streets looking for the applicant, then with the applicant returned to the workplace, where he collected his pay and then left. When the applicant arrived at the railway station he was struck again with illness and contacted Mrs Powell, who made immediate arrangements for Mr McDonald to collect him and take him for medical treatment. This he did, and at the applicant's request Mr McDonald drove him to Monash Medical Centre. Mr McDonald offered to attend with the applicant or to assist him into the casualty area, but this offer was declined by the applicant. There were a number of occasions when the applicant says he had taken ill during working hours, and had either been unable to attend at work or unable to continue working. On some occasions his response to this difficulty, which he ascribes to the vehicle emissions, was not easily explained. On one occasion his evidence was that he became ill on the way back from Footscray to the workplace at Seaford. He then drove the vehicle in what would seem to be an extraordinarily indirect route, via Monash Medical Centre at Clayton, before deciding not to attend either the police station or the medical centre, as he said had been his original intention. He then continued in the vehicle to Seaford. There were other occasions when the applicant had left work ill and gone to friends' homes or walking by a creek some distance away from his place of residence. Not all of these incidents, or their detail, had been made known to the respondent, however it was aware of the ongoing illness of the applicant and, despite the cause, it expressed concern to remedy any problems and assist the applicant. I am satisfied that the respondent was taking all reasonable steps open to it to assist the applicant in circumstances which were difficult and fraught with peril if the respondent behaved in what might have been perceived by the applicant as demanding or intrusive. The respondent offered assistance to the applicant as and when required, and responded to any request made of it for such assistance. Notwithstanding that the applicant had no sick leave entitlements accrued, Mr Tatnell authorised payment of sick leave on at least three days. The respondent on at least one occasion provided an alternative vehicle and offered alternative duties to the applicant, and although the respondent makes no criticism of the applicant for this, it is clear that the applicant refused to perform alternative duties. The applicant also refused to take time off work when ill and attended for work despite instruction from the respondent that he should remain at home. The evidence of the respondent's director Mr Tatnell, is that on 20 June 1995 he contacted the applicant and indicated he wished to meet with him for the purpose of discussing these problems, and that the applicant refused to meet and indicated that he was only prepared to attend work to perform his driving duties. The applicant denies that such a discussion took place in relation to a meeting, although he concedes that other matters referred to by Mr Tatnell were discussed. I prefer the evidence of Mr Tatnell as to the conversation. It is consistent with the conduct of the respondent over the preceding weeks in attempting to resolve the issues between them. It is also consistent with previous conduct of the applicant in refusing to work in other than sales duties for the respondent. Further, I found aspects of the applicant's evidence unsatisfactory, particularly his explanation as to the diversion from Footscray to Clayton and his whereabouts during various stages of illness. During the period of the illness, and despite some attendances at medical centres and clinics, the applicant did not provide any medical certification to the respondent in relation to the illnesses during the period of the employment, nor any information to the respondent in support of his claim that the vehicle emissions were making him ill. Nor does the medical certification provided by the applicant after the termination of his employment state that this is the case. The evidence of Mrs Powell was that she had requested the provision of doctors' certificates during the employment but that the applicant failed to produce them. I accept the evidence of Mr Tatnell that on 20 June 1995 he did request that the applicant attend a meeting with him on 21 June 1995 and that the applicant refused to attend such a meeting. I am satisfied that at the time of the termination of the employment the respondent had reached a stage in its dealing with the applicant where it appeared that there was no way of salvaging the relationship between them. It also appears that the applicant was not co-operative in the respondent's attempts to resolve the issues between them. I am satisfied that as at the date of the termination of the employment there was a breakdown in the relations between the two parties, which was apparently unresolvable. The applicant's refusal to meet with the respondent in an attempt to resolve the problems meant that the respondent was faced with an uncooperative employee on a continued basis, with no prospect of resolution of the problem in the short term. In short by the time of the termination there was no meaningful communication between the parties and none likely in the foreseeable future. The respondent terminated the employment in the course of a telephone conversation on 20 June 1995. I am satisfied that the respondent had valid reason for the termination of the employment based upon the conduct and performance of the applicant. This conduct included unreliability, lack of co-operation and the refusal on 20 June 1995 to meet with the respondent on the following day. I turn now to consider the application of s170DC and s170DE(2) of the Act. S170DC and S170DE(2) S170DC provides inter alia that an employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless the employee has been given the opportunity to defend himself against the allegations or the employer could not reasonably be expected to give such opportunity. In short the section requires that the applicant be given the opportunity to be heard prior to the termination of the employment. It is clear that the respondent failed to give the applicant an opportunity to be heard prior to terminating his employment. No warning was given of the possibility of termination of his employment if he did not comply with certain and specific requests, in particular the proposed meeting, or if the problems between them could not be resolved. Further, the applicant's work performance in terms of generating business for the respondent was good and, aside from the attendance difficulties, the respondent had no other cause for complaint in relation to the applicant's performance or conduct, and there was thus no cause for immediate or urgent action to be taken as contemplated by s170DC(b). This is not a case of the type contemplated by s170DC(b). Further the lack of any criticisms of the applicant's substantive work performance suggests that the action to terminate the employment, taken albeit as a result of frustration in the employer, but without consideration of any other alternatives or options, was harsh. I am satisfied that the respondent failed to comply with s170DC of the Act and that the termination of employment was harsh. I now turn to consider the question of remedy. S170EE In this case I am satisfied that an order for reinstatement would be impracticable having regard to the breakdown in relations between the parties, and the personal enmity that now exists between them. This was apparent to me in the course of the proceedings. I am not satisfied that there could be any restoration of a working relationship between these parties. I have considered the question of compensation as a result of the termination, and, in the circumstances of such a short period of employment with the respondent, have decided that it would be appropriate for compensation to operate in respect of only that period for which I am satisfied the applicant's employment would have been reasonably likely to continue. The respondent has already paid to the applicant an amount equivalent to one weeks wages as at termination. In my view, the applicant's employment was not likely to continue for any significant period beyond the date of termination in view of the lack of trust and cooperation between them, which was mutual. There is no lengthy employment history in this case which might suggest that the employment but for the unlawful termination was likely to continue. I am satisfied that the applicant ought receive compensation in the sum of $ 900.00 which represents an additional two weeks pay. I am of the view that the employment would not have continued beyond the expiration of that period. The orders of the court will be: 1. That the respondent pay to the applicant the sum of $ 900.00 in compensation. 2. The time for payment is 21 days from the date of this order. I certify that this and the preceding seven (7) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate: Dated: 17 November 1995 APPEARANCES Solicitors for the applicant: Gabriel & Co Counsel appearing for the applicant: Mr B Shaw Representative appearing for the respondent: Mr R Tatnell Date of hearing: 1 November 1995