INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2562 of 1994 B E T W E E N : ROBERT GEORGE OTTO Applicant AND NYLEX CORPORATION LIMITED Respondent Before:Judicial Registrar Murphy Place: Melbourne Date: 23 November 1995 EX-TEMPORE REASONS FOR JUDGMENT The issue in this proceeding is whether the Applicant was entitled to refuse to perform certain duties in his position as a process worker with the Respondent. While the issue when expressed in that form appeared relatively straightforward, the factual background was, as in many similar cases where constructive dismissal is alleged, more complicated. The Applicant's concerns at the workplace The Applicant commenced employment with the Respondent as a process worker in April 1993. No criticism is made of his work performance and he had a good attendance record. The Respondent at its factory has two different production sections. One is known by the patent name of Woodstock, the other Extrusion. The Applicant, who had indicated in his application form that he was available to do shift work, commenced in the Woodstock section working afternoon shift. His evidence was that in May 1994 a particular co-worker, Mr Feleti ("Feleti"), assaulted him by pushing him violently from behind. The Applicant was caught by a Union shop steward, Mr Bowman ("Bowman"). At no stage then or later did the Applicant make any complaint about the alleged assault to his employer. It was the Applicant's evidence that in addition he had been verbally abused several times by Feleti. He claimed that punches were thrown and he had been kicked when he had spoken up. He gave a picture of a general campaign of harassment and abuse on his shift. In response to a number of incidents involving himself and concern that the Applicant had about the treatment of a leading hand, Mr Ebadi ("Ebadi"), the Applicant, in June 1994, requested his supervisor to call a meeting of the afternoon shift. The meeting took place, but the Applicant said that when he tried to raise anything he was howled down by the other workers. The Applicant then wrote an 11 page letter dated 10 June 1994 to Mr Lazarus ("Lazarus"), the Manufacturing Manager of the plant. In that letter the Applicant gave details of abuse and derogatory comments directed by Feleti to another employee, Mr McDougall ("McDougall"), and to Ebadi. Also raised in that letter were a number of safety and production issues, as well as a wide range of supervisory and management issues. The only reference to any incidents involving the Applicant was a statement that "Peni (Feleti) & Ray (Riordan) had "heavied" me more than once". The Respondent transfers the Applicant After management had received the letter, the supervisor of the shift and the leading hand were stood down. All employees on the shift were interviewed by Mr A Ebert ("Ebert"), Production Manager of the Woodstock section and Lazarus, and no support for the Applicant's allegations was found. The Respondent was, on the evidence of Ebert, left with a shift that was upset with the Applicant. Ebert's evidence was that he was very surprised by the allegations of safety breaches and harassment on the shift. In the investigation, no one nominated safety or harassment as an issue. In particular, the two employees who were alleged by the Applicant to have been harassed, Ebadi and McDougall, said that they were not harassed in the manner alleged. Further, the Applicant himself in meetings with Ebert and Lazarus did not suggest that he was being harassed. This is confirmed by the two letters that the Applicant wrote at the time, dated 10 and 14 June, both of which are primarily directed at supporting Ebadi as leading hand. In cross-examination Ebert denied that employees would be reluctant to raise these types of matters with management in the context of workplace interviews. Ebert's evidence was corroborated in all respects by Lazarus. These two witnesses were at one in stating that they found no corroboration for the allegations made by the Applicant. In evidence Ebert conceded that the openness of employees will be tainted to the extent that they are required to confide in management, but he claimed that the investigation of the matters raised was adequate. In response to the situation after the interviews Ebert and Mr Robert Bruce, the Production Manager of the Extrusion section ("Bruce"), had a meeting with the Applicant at which it was suggested that he transfer out of the Woodstock section to the Extrusion section on a temporary basis. The Applicant said he was happy to go along with this. Ebert gave evidence that it was made clear that it was to be temporary, and the job was in effect to be created for the Applicant in the Extrusion section. The Applicant then worked in the Extrusion section until November. Over the period until November the Respondent expanded its production and this created a need for employees in the Woodstock section. This led to a request in late October that the Applicant transfer back to the Woodstock section. Before dealing with events in November it is appropriate to record that in support of his case the Applicant called three witnesses, none of whom gave material evidence to support him. Mrs Von Slit had worked with the Applicant and on the Applicant's version had been the subject of harsh treatment. She did not support his evidence. While she conceded that at times there were production difficulties and tensions within the Woodstock section, in the last year or two she said that people had communicated better. The Applicant's supervisor, Judy Harrison, gave evidence that the Applicant was a good worker. The only complaint she could remember the Applicant bringing to her attention related to a safety matter. She had called a meeting at the Applicant's request but the meeting degenerated into a grievance between the Applicant and another employee and at that point the meeting was called off. Her evidence was that in general if matters on the factory floor were brought to her attention they were sorted out. She was unaware of any assault on the Applicant by Feleti. She did not corroborate the Applicant's evidence that he had raised with her on a number of occasions his concern about his treatment. The Applicant's final witness was the shop steward, Bowman. He could not recall the alleged assault by Feleti on the Applicant and was also unaware of any ill feeling between them. The Respondent called Feleti to deny any assault type of incident with the Applicant. When the Applicant first raised with Feleti a safety issue, Feleti went to the supervisor Harrison, who called a meeting to discuss it. At that meeting the Applicant did not raise any safety issues. The Respondent's other witnesses also challenged crucial parts of the Applicant's evidence. Ebert denied that the Applicant had ever raised with him allegations of physical intimidation or harassment by other employees. He also maintained that it had been made clear that the move to the Extrusion section was temporary. Further, when the question of a transfer back to Woodstock arose, Ebert, Lazarus and Bruce all said that at no time did the Applicant raise the issue of harassment with them. The only matter, as far as they were concerned, that the Applicant raised was the issue of getting on with the other employees who he had left when he transferred across. This was to be addressed by the Respondent first making an offer that the Applicant work on day shift. This the Applicant refused for personal family reasons. Then it was to be addressed by a transfer back on the afternoon shift, but on a different production line with an expanded number of employees on the shift. In October, the Applicant had been asked by Bruce to transfer to night shift. The Applicant had refused. The management representatives of the Respondent, Ebert, Bruce and Lazarus, gave a compelling picture of how during November when the Applicant was requested to move from his temporary or created position in the Extrusion section back to Woodstock where labour was required, they bent over backwards to allow the Applicant to reconsider his refusal of their request or to provide a reasons for not complying with their request. There was a meeting on 8 November where the Applicant was given 48 hours to accept a transfer to the Woodstock section or he would be deemed to have terminated his employment. On 14 November the Applicant contacted the pay office, in effect, acknowledging that he would not comply with the request to transfer. On 16 November a letter was forwarded to the Applicant giving him until 21 November to give to the supervisor a reason for him not working. On 21 November the Applicant wrote to the Respondent saying that he was not going to accept the transfer and gave as his reason "due to what I experienced as a very obvious self-perpetuating environment." In a meeting on 22 November a union organiser, Mr Hall, was called in. The shop steward, Mr McCleary, who had been present at the meeting of 8 November, was also present. The evidence of Bruce and Lazarus was that at that meeting the Applicant did not elaborate on his reasons for his refusal to accept the transfer back to Woodstock. Could the Respondent require the Applicant to transfer back to Woodstock? The Applicant's case that he had been constructively dismissed requires a consideration of the scope of the Respondent's entitlement to transfer employees within its operation. I find that employees such as the Applicant were classified as process workers, and were not allocated to particular sections permanently. There was movement between the sections in response to production requirements. In October/November 1994 the Respondent needed employees in the Woodstock section. The Respondent was therefore entitled to request the Applicant to transfer on the same shift to another section. He had denied, for understandable personal reasons, opportunities to transfer to either night shift or day shift. The only basis on which the Applicant could refuse such a request was that it was unreasonable. For the Applicant to have a basis for such a refusal requires the Court to accept that the work environment in Woodstock section was of such a nature that the Applicant was entitled to refuse to work in it. Ebert's evidence was that the Applicant was offered a different production line from the one he had previously worked on. Further, even accepting that the Applicant felt that he could not get on with the afternoon shift employees, a period of four months had elapsed since he had worked there. In addition, I find, the Applicant's problems in Woodstock were of his own making. He had made accusations about other employees and safety issues which, following investigation by the Respondent, were not sustained. The Applicant was therefore under a duty, even on his own version, to attempt to go back to work in an area where his services were needed by the Respondent. The judgment of Ebert and Lazarus that the Applicant, despite the past differences, would be able to work productively in a new team on a different line in the Woodstock section, was a reasonable one. When the evidence of the co-workers, which does not support the Applicant's allegations is added, the Respondent's actions look even more reasonable. At all times the union officials were also involved. At no stage did the Applicant raise what could have been his trump card, the alleged assault by Feleti. This failure to raise the alleged assault, even when he had the opportunity to discuss matters privately with senior union officials, casts real doubt on the credibility of the Applicant's evidence of the work place environment. Given the failure of the Applicant to ever raise the alleged assault with the Respondent, it is unnecessary for the Court to make a finding as to whether it in fact occurred. The employer was entitled to proceed on the basis that there had been no assault. The employer in this situation has made a proper response to the Applicant's allegations in June, found them to be without substance, and then decided, after a decent interval, to require the Applicant to resume duties in the Woodstock section, albeit on a different production line. The Applicant was unable to produce any corroborating witnesses for his assertion that he raised the issue of harassment as the reason why he refused to accept the transfer back to Woodstock. He failed to call the two union officials who were present at the meeting on 22 November 1994. The essential submission by Counsel for the Applicant that as a result of the original investigation of the June allegations, the Respondent had failed to even properly investigate the work place environment, is misplaced. The Applicant was prepared to agree to a temporary transfer to a specifically created excess position in the Extrusion section in circumstances where his own allegations had caused resentment and anger in the Woodstock section. Four months later when the Respondent sought to return the Applicant back to the Woodstock section, the Applicant, I find, did not raise any specific reasons except at a level of generality as evidenced in his letter of 21 November as to why the transfer should not occur. The Respondent, given the arrangement for a different production line, and the fact that the shift had expanded, was fully entitled to make the request of the Applicant. Conclusion The Applicant's Counsel has not formulated in argument which particular provisions of the Industrial Relations Act 1988 ("the Act") had been breached. On the material before me I am satisfied that the Respondent has terminated the Applicant's employment on 23 November by giving him until 24 November to comply with a reasonable request that he attend for duties on afternoon shift at the Woodstock section. The Respondent has discharged its onus of proof under Section 170DE(1) of the Act that it had a valid reason to terminate the Applicant's employment. I am further satisfied that the termination of employment was not in breach of Section 170DE(2) of the Act as the Applicant's unreasonable refusal to either comply with the request, or to provide a substantive reason to do so makes it difficult to characterise the termination as harsh, unjust or unreasonable. I further find that at all times the Applicant was accorded procedural fairness and there has been no breach of Section 170DC of the Act. Given the nature of Applicant's refusal to carry out duties as directed, I am satisfied that it is appropriate to characterise his refusal as serious misconduct. It follows from this that the Respondent has not breached section 170DB of the Act. The Applicant has not made out any grounds for relief and the application must be dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. The application is 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 eight (8) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: Solicitor for the Applicant: Mr Charman from Messrs McDonald and Charman Solicitors for the Respondent: Messrs Clayton Utz Counsel for the Respondent: Mr Justin Bourke Date of hearing: 22 & 23 November 1995 Date of judgment: 23 November 1995 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - SERIOUS MISCONDUCT - failure to comply with a direction to work - VALID REASON - PROCEDURAL FAIRNESS - HARSH, UNJUST OR UNREASONABLE TERMINATION. Industrial Relations Act 1988 ss.170DB, 170DC & 170DE. ROBERT GEORGE OTTO -v- NYLEX CORPORATION LIMITED No. VI 2562 of 1994 Before: Judicial Registrar Murphy Place: Melbourne Date: 23 November 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2562 of 1994 B E T W E E N : ROBERT GEORGE OTTO Applicant AND NYLEX CORPORATION LIMITED Respondent MINUTES OF ORDERS Judicial Registrar Murphy 23 November 1995 THE COURT ORDERS: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.