INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 4080 of 1995 B E T W E E N : BLAGOJCE MILESKI Applicant AND G & P CHASSIS MANUFACTURING CO. PTY LTD Respondent Before:Judicial Registrar Murphy Place: Melbourne Date: 19 December 1995 EX-TEMPORE REASONS FOR JUDGMENT The Respondent is a small, successful, family owned and managed business manufacturing chassis. It employs about 17 people, among them a number of welders. It is owned by two brothers, and two younger brothers also work in the business. The Applicant commenced employment in November 1993. He had trade training as a welder in his native Macedonia. At first he worked in a team with another employee but in the last six months of his employment he worked on his own building chassis. The issues in this case arise over a series of disputed events from February 1995 to 20 July 1995. In late January and February 1995 the Applicant was absent from work on two or three consecutive Mondays. At that time he was also working overtime on Saturdays. On 13 February, a Monday, he reported in sick. The next day when he returned to work Mr Gildo Inturrisi, a Director of the Respondent, had a meeting with him about his attendance record. Although the Applicant disputes this, I accept that the conversation also referred to his poor concentration and his work. A short time after that meeting Mr Gildo Inturrisi handed to the Applicant a written warning which read: "1. Taking too many days off on Mondays. 2. Poor concentration on the job." The Applicant, whose English is limited, signed the warning and I accept the evidence of Mr Charles Inturrisi, that he was handed a copy of this warning after it was signed. There is a dispute between the parties as to the extent that the Applicant's work performance was raised from then on. The Applicant denies that his work performance was raised in any formal or serious manner. The witnesses for the Respondent maintained however that his work performance was raised on a number of occasions. A particular disputed incident occurred on 3 July when the witnesses for the Respondent allege a conversation wherein the Applicant sought a pay rise. This was refused. The Respondent's witnesses, Charlie Inturrisi and Gildo Inturrisi said that then the Applicant's performance at work was raised. It was put to him that if he speeded up he could be put on piece work where he would earn more. The Applicant denied refusing to work piece work or, indeed, the offer. The Applicant denied ever asking for a pay rise. The Court, in general, prefers the Respondent's version of events throughout and finds that a meeting did occur on 3 July at which the Applicant's performance was raised by the management of the Respondent. At the meeting the Applicant was told that he had to improve. The Court does not accept that at that stage the Applicant was told that if he did not improve his employment would be terminated. Over the period 3-20 July the Respondent's evidence was that the Applicant's performance deteriorated. Mr Guiseppe Inturrisi who is the supervisor in the factory gave evidence that a number of units made by the Applicant were the subject of complaints by customers. His evidence was corroborated by Gildo Inturrisi. The Court accepts the Respondent's evidence that unsatisfactory work was raised with the Applicant by Guiseppe Inturrisi on a number of occasions, and in particular on 19 July. On 20 July a discussion occurred at which the Applicant had his employment terminated. The precipitating factor for this discussion seemed, on the evidence, to have been Gildo Inturrisi seeing the Applicant talking to another employee and effectively wasting the other employee's time. When the Applicant was told that his services were no longer required, he demanded reasons. At that point he was told to come back later in the day for his termination pay. He returned later that day and at that stage Carlo Inturrisi handed to him two documents. One was dated 3 July and said: "Warning 2 Called Bill to the office and was told to improve in his work." The other was dated 20 July and read: Warning 3 final. Bill was told 19/7/1995 that the work was unsatisfactory and Bill disagreed. Next day 20-7-95 he approached the supervisor and asked if ok and started to disagree. Again than (sic) it was transferred to the office with director and the decision was to terminate his employment, not to be disruptive to other employees and his work performance." I accept the evidence of the Applicant that he was asked to sign these two documents before he was paid his termination moneys. The Applicant refused to sign the documents and left. The Court is satisfied that a couple of weeks later these two warning letters along with a copy of the February warning were sent to the Applicant along with a cheque for his outstanding pay. The Court is satisfied that the reason for the Respondent terminating the Applicant's employment related to his performance. The three matters that the Respondent relied on were faults in his work, the speed at which he worked, and an allegation of disruption to other employees. The Court does not accept the Applicant's evidence that the reason for the termination was his refusal to work piece work. Has the Respondent discharged its onus of proof that it had a valid reason to terminate the employment? Whether a reason for termination of employment is valid always depends on the context in which it lies. Here the reason was performance related. There was, however, a lack of specificity in the degree to which the Applicant had failed to meet the performance standards required by the Respondent. He was too slow but this was not quantified; he was error prone but there was a vagueness about the nature of the errors, and no records were tendered in evidence; he was disruptive to other employees but this seemed to be a single minor incident. The provisions of Article 8 of Schedule 11 to the Industrial Relations Act 1988 ("the Act") are relevant here. Article 8 provides: "The employment of a worker should not be terminated for unsatisfactory performance, unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed." Here, given the Applicant's lack of real familiarity with the English language and the lack of any written warning, the lack of specificity in the alleged deficiencies in his conduct, and the fact that the Applicant continued to perform overtime work until he was terminated, the Court is not satisfied that the Respondent has discharged its onus of proof that it had a valid reason pursuant to section 170EDA to terminate the Applicant's employment. The position would have been different had the Respondent issued a final written warning to the Applicant: Selvachandran v Peteron Plastics Pty Ltd (Industrial Relations Court of Australia, Northrop J, 7 July 1995) and Drury v BHP Refractories Pty Ltd, (Industrial Relations Court of Australia, Wilcox CJ, 18 May 1995). The Court, therefore, finds that the Respondent has breached section 170DE of the Act. It is, therefore, unnecessary for the Court to determine whether the Respondent has also breached section 170DC of the Act. Remedy The Applicant sought reinstatement to his position. The Court applies the comments of Wilcox CJ in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199, 210, and approaches the issue in a common sense way. Here the business is small and the owners are active employees in the business. Given the evidence as to what passed between the parties in the period prior to the termination as testified by the witnesses of the Respondent, the Court finds that in these circumstances in this small workforce reinstatement of the Applicant to his position is impracticable. The Applicant is, however, entitled to compensation for the breach of the Act by the Respondent. He has been denied the opportunity to end the employment relationship on his own terms. The Respondent has failed in its obligations under the Act. The Court is satisfied that it is likely that the employment relationship would not have endured for more than a few months but for the termination. The Applicant has lost in remuneration to date $12,608. The Court is satisfied that the proper measure of compensation for the breach of the Act, having regard to the factors just mentioned, is the Applicant's loss of remuneration to date and proposes to order that the Respondent pay to the Applicant that amount. MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The Respondent pay to the Applicant the sum of $12,608 within 21 days of this date. 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 five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 22 December 1995 Solicitor for the Applicant: Ms R Harper Counsel for the Applicant: Ms M Young Solicitors for the Respondent: Mess Comito & Co Counsel for the Respondent: Mr B Shaw Date of hearing: 19 December 1995 Date of judgment: 19 December 1995 C A T C H W O R D S INDUSTRIAL LAW - UNFAIR TERMINATION - VALID REASON - PROCEDURAL FAIRNESS - REINSTATEMENT - REMEDY - COMPENSATION. Industrial Relations Act 1988 ss.170DC, 170DE & 170ED. CASES: Selvachandran v Peteron Plastics Pty Ltd (Industrial Relations Court of Australia, Northrop J, 7 July 1995) Drury v BHP Refractories Pty Ltd, (Industrial Relations Court of Australia, Wilcox CJ, 18 May 1995) Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199 BLAGOJCE MILESKI -v- G & P CHASSIS MANUFACTURING CO. PTY LTD No. VI 4080 of 1995 Before: Judicial Registrar Murphy Place: Melbourne Date: 19 December 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 4080 of 1995 B E T W E E N : BLAGOJCE MILESKI Applicant AND G & P CHASSIS MANUFACTURING CO. PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Murphy 19 December 1995 THE COURT ORDERS: 1. The Respondent pay to the Applicant the sum of $12,608 within 21 days of this date. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.