C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - whether PROCEDURAL FAIRNESS - whether a VALID REASON - REINSTATEMENT INDUSTRIAL RELATIONS ACT 1988 Ss 170DC, 170DE, 170EA, 170EE Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 Byrne v Australian Airlines Limited (1995) 131 ALR 422 Klingenberg & TWU v I R Cootes Pty, unreported, IRCA No. 398/95, Marshall J, 24 August 1995 ROSS SALVATORE -v- BGC CONCRETE - WI 95/2073 BEFORE: RITTER JR PLACE: PERTH DATE: 21 DECEMBER 1995 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/2073 BETWEEN: ROSS SALVATORE - Applicant AND: BGC CONCRETE - Respondent MINUTE OF ORDERS BEFORE: RITTER JR PLACE: PERTH DATE: 21 DECEMBER 1995 THE COURT ORDERS THAT: 1. It is declared that the termination of the employment of the applicant by the respondent ("the termination") contravened Sections 170DC and 170DE of the Act. 2. Within 14 days of the date of this order, the respondent shall reinstate the applicant by appointing him to the position in which he was employed immediately before the termination. 3. The employment of the respondent is deemed to have been continued for all purposes from 8 September 1995 until the date of reinstatement in accordance with this order. 4. Within 14 days of the date of this order, the respondent shall pay to the applicant loss of remuneration at the rate of $438.00 per week from 22 September 1995 to the date of reinstatement, less the amount the applicant earned from his employment with Soiland. 5. If the parties are unable to agree the amount of remuneration lost there be liberty to apply on at least 48 hours notice to the other party. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/2073 BETWEEN: ROSS SALVATORE - Applicant AND: BGC CONCRETE - Respondent BEFORE: RITTER JR PLACE: PERTH DATE: 21 DECEMBER 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 ("the Act") arising out of the termination of the employment of the applicant, by the respondent, in alleged contravention of Division 3 of Part VIA of the Act. The applicant seeks reinstatement to the position he held prior to the termination of his employment. The respondent alleges that it had a valid reason to terminate the applicant's employment connected with his capacity or conduct. THE FACTS The applicant gave evidence on his behalf and called Mr John Daley, Mr Mervyn Nabbs and Mr Lindsay Holland as witnesses. Evidence for the respondent was given by Mr James Trail, Mr Nunzio Sangrigoli and Mr Kevin Noack. The applicant was employed as a truck driver with the respondent from 6 July 1993. He was employed to drive a concrete mixing truck. It is common ground that his employment with the applicant was terminated on 8 September 1995. The termination of employment was effected in a telephone call between the applicant and Mr Trevor Bovell, the General Manager of the respondent on the afternoon of 8 September 1995. Mr Bovell was not called as a witness by the respondent. There was no explanation given for the failure to call Mr Bovell as a witness. The applicant said in his evidence that Mr Bovell told him in the conversation that the actions of the applicant in his motor vehicle on leaving the work premises that day were unacceptable and that it was time to "call it a day". The details of the incident in the motor vehicle are set out later in these reasons. The applicant said he asked Mr Bovell if he was being sacked and Mr Bovell confirmed this. The applicant said "what for" and Mr Bovell replied that it was the applicant's actions in the car. The applicant said to Mr Bovell that this occurred outside work time and work premises. The applicant's evidence was Mr Bovell said that there was a lack of co-operation from the applicant and also referred to a slumping incident on 7 September 1995. The details of this incident will also be set out later in these reasons. The applicant said that he queried the alleged lack of co-operation and said regarding the slumping incident that even if it was his fault, it was no reason to sack him. He also said that he did not think that the slumping incident was his fault. Mr Bovell said that there would be a letter for the applicant to collect from the work premises. This was effectively the end of the conversation. The applicant collected the letter on 11 September 1995. The letter was in the form of a memorandum to the applicant from Mr Bovell dated 8 September 1995. Omitting formal parts, the memorandum reads as follows:- "It is disappointing to hear that your attitude to this Company has deteriorated again to such an extent that warrants this letter. In particular, the lack of co-operation you have shown to our plant staff and supervisor is totally unacceptable. Also, regarding the slumping incident of the 7th September 1995, I would of (sic) expected an operator of your experience to have known how much water and how to add the water to bring it to the correct slump. I am now informed of a serious breach of the Company Safety Policy in that you were seen by a senior Atlas Group executive leaving the yard in an extremely dangerous manner, so much so that it warranted a personal complaint to myself. In light of all the above, I have no alternative other than to dismiss you immediately. Please find enclosed your pay made up to the end of work Friday 8th September 1995 and two weeks pay in lieu of notice." Although, as stated above, Mr Bovell did not give evidence, evidence was given for the respondent by Mr Kevin Noack. He was the Manager of the respondent at the premises where the applicant worked. He was the direct supervisor of the applicant. He said in his evidence that the decision to terminate the employment of the applicant was made by Mr Bovell. However, he was with Mr Bovell when he made the decision and agreed with it. He said that prior to the driving incident which occurred on 8 September 1995, he was in the process of drafting a warning to the applicant with Mr Bovell. However, after hearing of the driving incident, Mr Bovell made the decision to terminate the employment of the applicant. Mr Noack said that in his view the driving incident involved a serious breach of safety. There was some reference in the evidence to a company safety policy. However, the company safety policy was not produced. The applicant was shown a document during the course of his cross examination and confirmed that the document said there should be no horse play at work. The evidence about the driving incident is as follows. The applicant said that the driving incident occurred when he left the work premises of the respondent on 8 September 1995. The applicant said that just outside the gate of the respondent's premises is a patch of limestone on the ground with a slippery surface. The applicant said that as he drove over this surface he gave his car "some juice" and the wheels of his motor vehicle spun for about one metre. When the wheels of his motor vehicle reached the tar of the road outside the front gate, the car wheels did not spin any longer. The driving incident took place in the applicant's motor vehicle after he had clocked off from work and on his evidence outside the premises of the respondent. In cross examination the applicant denied that he had sped the vehicle out of the gate with the rear end of the vehicle out of control and that when someone had yelled to him to slow down he had made a gesture at the person with his finger. Mr Daley, also an employee of the respondent, said in his evidence that it was common practice for people to leave the premises by sliding their motor vehicles out of the gate. He said that this had not occurred as much since the termination of the applicant but that prior to that it would happen a minimum of three to four times per week. Mr Daley also said that it was common practice at the yard when there was nothing to do to play on motor bikes in the yard. He said that sometimes there were "wheelies" done in the yard and that at one time a man had brought in a side car to drive in the yard. Mr Daley did not witness the driving incident involving the applicant. I accept Mr Daley's evidence as to the common practices of driving when leaving the premises. Mr Holland is a former employee of the respondent, who left in April 1995. His evidence was also that people left the yard by doing "wheelies". He observed this once or twice a week. He said that no action was taken against the employees that did this. He explained in his evidence that a "wheelie" occurred when one accelerated quickly by "putting your foot flat to the floor". He said that the "wheelies" he observed were driven as people went through the gate of the work premises. Mr Holland had been a cement truck driver with the respondent for about four years until April 1995. He also did not witness the specific incident involving the applicant. Mr James Trail gave evidence for the respondent. Whilst he could not positively identify the applicant as the driver of the motor vehicle he observed, his evidence was that the incident occurred at 3.30 pm on 8 September 1995. This time was consistent with the time that the applicant admitted the driving incident occurred. I therefore infer that Mr Trail did witness the applicant driving from the premises of the respondent. Mr Trail is the Administration and Accounts Manager for the Atlas Group of Companies. The Atlas Companies have premises in Morley and are the owner of the site which the respondent leases. Mr Trail said that he was outside and about 100 to 150 metres from the gate leading out of the respondent's premises. He said that he saw a white panel van "screaming" out of the gate of the respondent's premises. He said that he thought that the vehicle was out of control and the back end of the vehicle was swinging. He said that he yelled out to the driver to slow down but the driver made a gesture to him with his finger. The driver then went over a speed hump which led to the front gate of the Atlas premises. The car was still travelling quickly over the speed hump. Mr Trail noticed a gardener jumping to his right hand side as the car slid. However, Mr Trail was unable to say whether the gardener was in physical danger. He did seem to be startled however. Whilst Mr Trail did not say that there were any vehicles in the vicinity at the time he witnessed this incident, he said that there are trucks and cars coming in and out of the premises all day between 6.00 am and 5.30 pm. He explained that the access road to the Atlas Group of Companies involved not only the Atlas Group and the respondent but also a business he described as "Collins" and a garden supply business. Mr Trail said that the motor vehicle was travelling in excess of the 30 kilometre speed limit for the area. In cross examination Mr Trail elaborated on the movements of the motor vehicle. He said that the back end of the vehicle was seen to slide one way, then the other, then back the other way again before straightening up just prior to going over the speed hump. He said that the whole incident lasted over a distance of 120 to 150 metres. Mr Trail said that the BGC Concrete gate area was a width of three car lengths. The other areas where he had seen the motor vehicle travelling out of control had a width of up to six to seven car lengths. Whilst the evidence on this was somewhat unclear, it seems from the evidence of Mr Trail that most if not all of the driving incident he observed took place outside the premises of the respondent. In this regard I note that the memorandum of termination refers to "leaving the yard". Further, Mr Noack, in his evidence said that the information he received was that the driving incident occurred outside the respondent's gate. Mr Trail gave his evidence as carefully and as precisely as possible. When he did not know the answer to a question he readily admitted this. I was impressed by his evidence. I prefer the evidence of Mr Trail as to the driving incident to that of the applicant. The applicant's comment that the wheels of his vehicle only spun for about one metre is difficult to accept. Mr Noack in his evidence said that he "investigated" the driving incident. The investigation, however, only took twenty minutes. He said that he received information about the driving incident from another source. He was given a vehicle registration number which he checked to be that of the applicant. He endeavoured to contact the applicant but was unable to. He contacted two people at the premises of the respondent to try to track down the applicant. He was with Mr Bovell when he tried to contact the applicant. These attempts were to no avail. It is clear that the decision to terminate the applicant's employment was made before Mr Bovell, Mr Noack or anyone else spoke to the applicant about the driving incident. No-one obtained the applicant's version of events before making the decision to terminate employment. The memorandum of termination mentions two other matters concerning the applicant's conduct and performance. The first is the applicant's attitude and lack of co-operation. The second is the "slumping incident". The memorandum of termination was devoid of any particularity with respect to the aspects of the attitude of the applicant that were allegedly lacking. The same can be said with respect to lack of co-operation. However, evidence was given on a number of matters. The first concerned the applicant's alleged chronic lateness for work. The commencement time for cement truck drivers was 6.00 am in summer and 6.30 am in winter. The winter start time commenced on 4 May in 1995. The applicant described in his evidence the process involved in a day's work as a cement truck driver for the respondent. Over the time that the applicant worked for the respondent there were between fourteen and eighteen cement truck drivers at the plant. In the afternoons there was a notice put up at the plant which set out the order of drivers for the following day. The following morning, each truck in order went under the batch bay to be loaded with cement and water. The driver was also given a destination docket. The order that the trucks were loaded in the morning accorded with the times and destinations at which the trucks were required. If a driver's cement truck was to the middle or back of the line then they would not be loaded at the work start time of either 6.00 am or 6.30 am (depending on whether summer or winter start times). There was a delay which the applicant described as taking between 45 minutes to 1˝ hours depending on the position in the line, the workload and the times when the builders were expecting the cement trucks to arrive. The applicant said that after one had checked their truck to make sure it was ready for a load, the truck driver could do what they wanted at the premises before receiving their first load. For example, the applicant said they could play chess, cards, darts or drink coffee in a room where there was a pot belly stove. Because a driver could essentially do what he liked until his truck was ready to be loaded and because a driver knew the position of his truck in the line the previous afternoon, the applicant said that there was a practice that drivers would turn up after the relevant starting time and that this was not frowned upon as long as the truck was ready to receive its materials from the dispatcher at the appropriate position in the line. The applicant said that prior to March 1995 there were therefore times when he started after the official start time. This was in circumstances where his truck was towards the middle or end of the line. He said that prior to March 1995 he did not receive any warnings concerning the start time. He said that Mr Noack simply asked him why he was late. When the reason was because of the position of his truck in the line, he would explain this to Mr Noack. He explained that on another occasion he was late because his alarm did not go off because there had been a power cut and on another occasion the battery in his car had been flat. On 2 March 1995 Mr Noack handed the applicant a memorandum from Mr Bovell. The applicant said that he received this a couple of days after he was late because of the car battery being flat. The applicant said that Mr Noack, when giving him the document, said "This is your first one. There are two to go". The applicant said that he interpreted this to mean that if he received two more written warnings about lateness he would be dismissed. He came to this view after reading the memorandum. It read:- "I am very disappointed to hear of your continued lateness to work. I might point out that it is the employee's responsibility to notify the company of non attendance prior to the expected starting time. You must know how difficult your late attendance makes it for the dispatcher and I am left with no alternative other than to issue you with this warning." The warning was dated 2 March 1995. The applicant said that after receiving the warning he continued the same practice of starting work. When his truck was at the middle or back of the line he would come in late as long as he would not miss a turn. In his evidence, Mr Daley, a cement truck driver employed by the respondent, said that if a driver's truck was not in the first group and the driver came in late there was no problem as long as you did not miss your turn, and you were not chastised for this. He said that sometimes in winter a driver could sit up to three hours before getting a load. He said that up until the time the truck was loaded you could sit around and play cards or chess. He said that he personally tried to get to work on time so he could knock off on time. However, he said there was the odd occasion where he was running late and did not hurry himself because he knew his truck was not in the first group of trucks to be loaded. In cross examination, Mr Daley confirmed that he had been spoken to by Mr Noack about two months ago concerning coming in late. He was reminded of the correct starting time. Mr Nabbs was a cement truck driver who worked for the respondent for about 2˝ years until May 1995. Mr Nabbs confirmed the process of trucks lining up and being provided with materials. He said that although he would not arrive late, some people whose trucks were in the middle or the end of the line would get there from ten to fifteen minutes late. He confirmed that whilst waiting for the truck to be loaded the truck drivers lit the fire, drank coffee and talked. He said that during the time whilst he was there he did not know of the respondent taking any action against drivers who had arrived late in the manner that he described. Mr Holland in his evidence confirmed that if your truck was in the middle or the end of the line and you were running late you would "not speed" to get to work. He said that he was on occasions ten minutes late for work and was not spoken to about that. Mr Noack in his evidence said that when he gave to the applicant the warning on 2 March 1995 he had said "twice more and you're out". He said that this was a broad statement that he said in the heat of the moment. He said that what he had said could either mean that the applicant would be "out" if he was late two more times or he would be out after receiving two more written warnings. However, he agreed that the applicant was late two more times prior to 8 September 1995 and that he had not been dismissed prior to 8 September 1995 for reasons of lateness. He said that prior to the 2 March written warning he had verbally spoken to the applicant about his lateness. He also said that on one occasion after 2 March 1995 he had indicated to the applicant that he may receive another letter. However, none was given to him for lateness. Mr Noack agreed that other employees arrived late but not with the same regularity and severity as the applicant. He said that so far as he was concerned the start time was the start time. He wanted the drivers to be there so that he knew they were there to take their load. However, he agreed that a driver could be waiting about thirty minutes if their truck was to the middle or end of the line. He agreed that during this time they could play cards or drink coffee. He said that it was simply better that they were there. Mr Sangrigoli, who gave evidence for the respondent, is a dispatcher who works for the respondent. He said that there were a number of times when the applicant was late for work. He said that there were times when the applicant did not turn up for work and he had to telephone him at home. He said that this occurred even after 2 March 1995. He said in his evidence that there were at least two times when the applicant did not arrive by 7.30 am and he had to telephone him. He said that the applicant then did not arrive for work until 7.50 to 8.00 am. The applicant's time cards were tendered as exhibits. These showed a time stamped time of arrival at work for the applicant. The cards showed that on no date after 2 March 1995 did the applicant arrive for work at 7.50 am or later. He arrived at 7.39 am on 21 July and 7.20 am on 17 August. Accordingly, I reject the evidence of Mr Sangrigoli as to the start times of the two occasions he alleged that he telephoned the applicant. The applicant did not recall any such occasions. The applicant's time card for 3 March 1995 indicates that he arrived at work at 6.46 am. This was 46 minutes late for the summer start time. This was at least unwise given the warning that he had received the previous day and at worst showed that the applicant disregarded instructions and had a poor attitude to his work. From 4 March to 8 September 1995 the applicant was late for work on 47 occasions. On 23 occasions he was between one and five minutes late. On nine occasions he was between six and ten minutes late. On six occasions he was between 11 and 15 minutes late. On three occasions he was between 16 and 20 minutes late and on six occasions he was more than twenty minutes late. The applicant worked a total of 139 days from the date of the warning received in March to his termination. Of the 20 days leading up to his termination the applicant was only late for work on four occasions with one of these being one minute late. Mr Sangrigoli gave evidence on another matter relating to the applicant's attitude. He said that on a number of occasions when the applicant was called to load his truck, in the middle of the day, he would answer over the intercom that he was not coming straight away but would finish his game of chess or whatever. He said that this occurred many times. He said that this occurred probably more than ten times over the time period that the applicant worked for the respondent. He said that he advised Mr Noack of this. He did not know whether Mr Noack had taken any action as a result. Mr Noack in his evidence said that on many occasions he reprimanded the applicant for not complying with the dispatcher's instructions. He said that the form of a complaint was "a light verbal warning". He said that he would tell the applicant that he had received a complaint again from "Nunzio" (Mr Sangrigoli) that he was not responding to his requests. He asked him to please comply with Mr Sangrigoli's requests. The applicant denied that there were any times when he told Mr Sangrigoli that he would finish his game of chess before responding to a call to take a load. He also denied that Mr Noack had reprimanded him. I accept the evidence of Mr Noack that he did on occasions give a light verbal warning to the applicant about not responding to the instructions of Mr Sangrigoli. However, I do not accept Mr Sangrigoli's evidence as to the extent of the applicant's disregard of his instructions. Mr Noack in his evidence also said that he had cause to verbally reprimand the applicant for a non appearance at work when he was rostered to do Saturday overtime. He explained that truck drivers are required to work about every second Saturday. On one occasion the applicant did not turn up for work and when questioned about it commented that he had football or football finals on. The applicant, in his evidence did not confirm that this occurred. He did mention a Saturday where there had been a power failure and so his electronic alarm clock did not wake him up. He said that he called the plant at about 6.45 am to see if it was necessary for him to then come in. He said that he was told not to worry as there had been some cancellations and his truck would not now be required. He said that this occurred on a Saturday about three weeks before his dismissal. I am unable to decide whether this evidence refers to the same occasion as Mr Noack described and if so, which of the versions is to be preferred. I consider that this incident is of little significance in the overall context of the evidence. Mr Noack also gave evidence that a couple of weeks before the applicant's termination he spoke to the applicant concerning his attitude. This was concerning the applicant not directly complying with a request to take his truck to the dispatcher to receive a load of cement. Mr Noack referred to this as him taking the applicant aside to try and get him "into gear". The applicant denied that this incident occurred. On this matter I accept the evidence of Mr Noack that he did counsel the applicant as he said in evidence. Concerning start times, the applicant gave evidence that he raised this issue with Mr Noack. This was at the conclusion of a safety meeting in late April or May 1995. He said that he asked what the position was regarding start times because he had heard from another driver that if one started late they could get the sack. He said that Mr Noack replied that if someone started late they would need to work overtime to make up their hours. The applicant clarified this by saying that if someone was 20 minutes late they would need to do 20 minutes overtime. The applicant indicated that this was agreed to by Mr Noack. The applicant said that after this his practice concerning arrival at work remained the same. Mr Noack denied such a conversation taking place. In his examination in chief, Mr Noack said that he did not say this after the safety meeting but that a Mr Mitchell, a production manager, had made the comment. He said that Mr Mitchell was not a supervisor and had no involvement with the drivers concerning their start times. His evidence on this point changed in cross examination, however. He then said that Mr Mitchell may have mentioned something about start times. He had no idea who brought the issue up. It was possibly the applicant but he did not raise it with Mr Noack. Mr Noack said that he was not involved in any such discussions. I do not accept Mr Noack's evidence on this point. Firstly, as noted above, his evidence changed. Secondly, if he heard some discussion about starting times I would expect that he would become involved in the discussion as the person who had direct supervision over the start times of drivers. Further, the applicant's evidence was supported by other witnesses. Mr Daley said that he attended a safety meeting when the applicant brought up the question of start times. He said that the applicant asked if it was possible for a driver to turn up late for work as long as they did not miss their turn. He said that Mr Noack said no, but if they did turn up late they would need to make up the time at the end of the day. He said that the driver would still need to complete their full number of hours. I was impressed with Mr Daley as a witness and accept his evidence about this conversation. Whilst Mr Daley's evidence of the conversation is not quite the same as the applicant's, it does support the applicant's view that there was some acceptance of starting late. Mr Nabbs also gave evidence that there was an occasion when, after a safety meeting, Mr Noack had said that if drivers arrived late for work they could work their normal hours at the end of day before they commenced overtime. In cross examination Mr Nabbs confirmed that this comment was made by Mr Noack and not by Mr Mitchell. Mr Holland also recalled that there was a conversation about start times after a safety meeting. However, as he was not directly involved in the discussion he did not know what was said. However, he did acknowledge that Mr Noack and the applicant were involved. The fact that I have accepted the applicant's evidence that there was the conversation with Mr Noack after the safety meeting diminishes the seriousness of the applicant's lateness for work subsequent to the safety meeting. The third issue mentioned in the memorandum terminating employment dated 8 September 1995 was the "slumping incident" of 7 September 1995. In his evidence, the applicant explained how a truck driver checks his cement load after the loading at the dispatch area. He said that the truck is taken to what is known as the slump stand or slump ramp. There the driver checks the load to make sure it is adequate. He explained that sometimes there is too little or too much water. If there is too little water then water is added. If there is too much water then the dispatcher is advised and the truck is taken to the dispatch area to receive more materials. The applicant said that on 7 September 1995 an incident occurred after he received his first load for the day. He said that he proceeded to the slump stand and when he looked into his truck he saw that the load was very, very dry. He said it was the worst that he had seen. He said that Mr Daley also looked in the truck and saw that the materials were very dry. The applicant said he then put about 20 to 30 litres of water in. He said that one could not judge precisely how much water they were putting in as they were only using a hose. However, after a period of time one gets a feel of how much water is added. He said that he then filled up the water tank of the truck. He then rechecked his load and saw that it was too wet. It was too wet to take on site. He said that he got on the two way radio and told Mr Sangrigoli that he would have to bring the truck back for more material. Mr Sangrigoli told him that he would have to wait as there were two other urgent loads to do. Before the applicant could take his truck back to the dispatcher, Mr Noack spoke to him. He said that Mr Noack abused him and said he had put too much water in and that he had watched him do it. The applicant said that he explained that the dispatcher had incorrectly loaded his truck. He said that Mr Noack then went to the office. The applicant then got more materials, checked his load and delivered it. He did not have any further discussions about the matter with Mr Noack. Mr Daley also gave evidence about the slumping incident. He said that in the days leading up to this there had been problems with receiving dry loads from the dispatchers. He confirmed that on 7 September 1995 he inspected a load of the applicant. He said that he noticed that the load was very, very dry and had hardly any water in it at all so far as he could see. He said that he said to the applicant that there was "bugger all water in it". He also explained that the dispatcher was supposed to load the truck evenly with water at the front and the back. Sometimes there was not an even mixture of water at front and back. If this happened then the dispatcher is supposed to tell the driver so that the driver can allow the agitator to mix for longer, ensuring the water mixes through the entire load. If the driver is not told of this by the dispatcher and they add the amount of water which appears to be correct from a visual inspection then the cement can become too wet. Mr Daley said that to properly check the load the driver had to physically look in the back of the truck. Some drivers did this by climbing up on the truck and others did this by climbing a ladder to look into the back of the truck. Mr Noack gave evidence about the slumping incident as well. He said that he observed the applicant's truck pull up to the slump ramp. He said that the applicant then grabbed a hose and put water into the load before checking the slump. He said that he reprimanded the applicant. He said that he told him that he had not checked the load and that it was now too wet. He said that this causes delays with the customer and with other loads. He said that he told the applicant that this was not good enough, that he should get his act together and buck up his ideas. Mr Noack said that he was in the process of formulating a warning letter to the applicant concerning the slumping incident with Mr Bovell when he received a call from Mr Trail concerning the driving incident. As stated above, it was then that the decision was made by Mr Bovell to terminate the applicant. On the issue of the slumping incident, I was again impressed by Mr Daley's evidence. I am satisfied from his evidence that the applicant and then Mr Daley did check the load before water was added. I find that Mr Noack either did not see all of the actions of the applicant prior to the adding of water or was mistaken as to his observations. Mr Sangrigoli gave evidence that he had seen the applicant adding water to his load at times without looking at it. He said that he had seen this occur many times. In cross examination this evidence was qualified. He said that the slump stand had four steps up to a platform. He said that if there was a full load one could just see in the back of the truck from the top of the platform to have a look at the load. His evidence was to the effect that this was not as good a method of checking as getting up on a ladder where one could see more of the load and could better tell how wet or dry the load was. He said that the applicant was the only driver who did not get on a ladder to check his load. However, on this point I prefer the evidence of Mr Daley. Mr Nabbs also said that each driver had their own method of checking their load. Further, the evidence of Mr Sangrigoli and Mr Noack was that there was not a large number of times when the applicant had to receive more materials or waste his load. In cross examination, Mr Noack said that he had spoken to the applicant a couple of times over a 2 - 2˝ year time period about his manner of loading his truck. He said that the applicant was probably no worse than other drivers in having to receive more materials for his load from time to time. Mr Noack agreed that a slumping incident like the one that he says that he witnessed on 7 September 1995 would not normally lead to termination. He said that if the driver was at fault in causing a load to be too wet it could lead to a warning. Depending on the severity of the error and the frequency of making errors it could lead to a written warning. BREACH OF THE ACT? The memorandum dated 8 September 1995 sets out the reasons why the applicant's employment was terminated by the respondent. The decision to terminate was made by Mr Bovell although this decision was agreed with by Mr Noack. Although Mr Noack said there was an accumulation of reasons why the applicant was terminated, it was the driving incident which ultimately caused the termination of the employment. Mr Noack explained that up until hearing about the driving incident, he and Mr Bovell were simply composing a warning memorandum rather than a termination memorandum to the applicant. Section 170DC of the Act provides 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 or herself against the allegations made. The matters referred to in the memorandum of 8 September 1995 do relate to the applicant's conduct or performance. With respect to the driving incident, the applicant was not given the opportunity to defend himself against the allegations made. Neither Mr Bovell nor Mr Noack spoke to the applicant prior to making the decision to terminate his employment. They did not give him the opportunity to present his version of events. In this respect he was not given "a fair go", and the section was breached: Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 at 243. Section 170DC(b) sets out an exception to the requirement that the employee be given the opportunity to defend themselves against allegations made. This is when the employer could not reasonably be expected to give the employee that opportunity. I find that the subsection does not apply to this factual situation. It would generally apply where there was some need for urgency in effecting a dismissal: Nicolson v Heaven and Earth Gallery Pty Ltd at page 244. This was not such a situation. I also find that Section 170DC was breached insofar as termination of employment was for lack of co-operation and a poor attitude. The matters complained of should have been put to the applicant with some specificity under circumstances where he had a fair opportunity to defend himself. This would need to have been done at a relevant time, close to the date of dismissal: Nicolson v Heaven and Earth Gallery Pty Ltd page 244. If lateness for work was one of the components of the alleged poor attitude and lack of co-operation this should have been specifically raised with the applicant. However, I have some difficulty in accepting that lateness was one of the matters referred to in the memorandum of 8 September 1995. This is because lateness for work was specifically mentioned in the memorandum of 2 March 1995. If lateness had comprised one of the reasons why termination of employment was being effected on 8 September 1995, I would have expected this and the earlier memorandum to be specifically referred to. Insofar as the slumping incident formed part of the decision to terminate the applicant, I do not find that there was a breach of Section 170DC of the Act. This is because the matter was raised with the applicant by Mr Noack, who is part of the management team of the respondent and the applicant's immediate supervisor. It was raised with the applicant in such a way that he did have a fair opportunity to defend himself. Although my findings with respect to Section 170DC are sufficient to dispose of the matter, it is appropriate to also consider whether there has been a breach of Section 170DE of the Act, as submissions were directed to this issue. Section 170DE(1) of the Act provides that an employer must not terminate an employee's employment unless there is a valid reason connected with his capacity or conduct. Section 170DE(2) states that a reason is not valid if, having regard to the employee's capacity and conduct, the termination is harsh, unjust or unreasonable. Pursuant to Section 170EDA, the employer is taken to have contravened Section 170DE(1) unless they prove that, apart from subsection 170DE(2), there was a valid reason or valid reasons of the kind referred to in subsection 170DE(1). If the employer so proves, the termination is nevertheless taken to have contravened Section 170DE(1) if the applicant proves that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid. With respect to the applicant's poor attitude and lateness I find that there was no valid reason for termination. I do accept that the respondent was justified in being concerned about the applicant's attitude. Having observed the applicant in the witness box compared to Mr Daley, Mr Nabbs and Mr Holland it appeared to me that the applicant's attitude to his work was worse than these drivers. I also rely on the evidence of Mr Noack in this regard. However, whilst I find that there was justifiable concern at the applicant's attitude, I do not consider that his attitude had manifested itself in conduct sufficient to justify termination of employment. With respect to his lateness for work, as stated above I find it difficult to find that this was one of the reasons for termination of employment. This is because this matter is not specifically referred to in the memorandum dated 8 September 1995. However, if it be that his lateness for work forms part of his attitude to work as referred to in the memorandum, again I find that his lateness in arrival for work was not a reason justifying termination. This is because of the following factors:- 1. The moderate extent of his lateness for work after receiving the memorandum dated 2 March 1995 and leading up to his termination, as set out above. 2. The general practice of lateness for work which seemed to have developed, largely unchecked, amongst some drivers. 3. The comments that I find were made by Mr Noack after the safety meeting in late April or May 1995. 4. The fact that in most instances, lateness for work had no effect on the productivity of the applicant. This is because although formally late in "clocking on", the applicant was not late in receiving his first load of cement because of the position of his truck in the line. In his closing address, Mr O'Sullivan stressed that the respondent had received quality assurance accreditation which allowed it to tender for government contracts. Lateness in supply of cement to sites was considered to be a serious matter. Whilst I accept this, there is no evidence that the applicant's actions in being late for work caused any delay in the delivery of cement to sites so as to affect the performance reputation of the respondent. With respect to the slumping incident, I find that this did not constitute a valid reason for termination. This view is reinforced by the evidence of Mr Noack who indicated that the slumping incident on its own would not have been cause for termination. I finally refer to the driving incident. Mr Herron, for the applicant, submitted that as this incident occurred outside work hours and outside work premises, it did not have a sufficient connection with employment to justify termination. I am not entirely in agreement with this submission. The driving incident occurred as the respondent was leaving the premises of the respondent, immediately after his completion of work. In such circumstances I find that the conduct is sufficiently connected with employment to warrant the concern of the employer. As stated above, I accept the evidence of Mr Trail and consider that the actions of the applicant were dangerous. But, whilst I find that termination on the basis of the driving incident would have been a valid reason for termination, I find that it would have been harsh, unjust or unreasonable to terminate the applicant for the driving incident. I am persuaded that this would be so for the following reasons:- 1. Whilst the actions of the applicant were dangerous in that they were potentially dangerous to other drivers or pedestrians, the actions did not actually constitute a danger to any driver or pedestrian. 2. As supported by the evidence of Mr Daley and Mr Holland, there was a general practice of leaving the respondent's premises by doing what was described as a "wheelie". Whilst I accept that the applicant's actions went beyond simply doing a "wheelie", I can understand that employees held the belief that their employer turned a blind eye to the driving of vehicles out of the respondent's premises in other than a strictly careful and safe manner. 3. There was no verbal or written warning to the applicant or the respondent's employees generally about driving vehicles out of the premises in other than a strictly careful and safe manner. 4. There was no complaint that the applicant had previously driven out of the premises in a way similar to that of 8 September 1995. 5. The applicant was not given an opportunity to give his version of events with respect to the driving incident. Whilst this involves some overlap with the termination in breach of Section 170DC(a), procedural fairness also comprises part of the consideration of whether employment has been terminated harshly, unjustly or unreasonably; Byrne v Australian Airlines Limited (1995) 131 ALR 422 per Brennan CJ, Dawson & Toohey JJ, page 434 and per McHugh and Gummow JJ, page 463. Accordingly, I find that the termination of the applicant's employment because of the driving incident was harsh, unjust and unreasonable. The termination of employment retains this character whether one considers the driving incident in isolation; or as Mr Bovell and Mr Noack viewed it, as an accumulation of the driving incident and other matters. REMEDY Section 170EE(1)(a) of the Act provides that, in respect of a contravention of a provision of Division 3 of Part VIA of the Act, constituted by the termination of employment of an employee, the Court may make an order requiring the employer to reinstate the employee by re‑appointing him to the position in which he was employed immediately before the termination. The applicant sought reinstatement. The respondent did not submit that should I find a breach of the Act, that reinstatement was impracticable. Having regard to the totality of the evidence, I find there would be no valid reason not to order reinstatement. Accordingly, I will make such an order. The applicant also sought an order under Section 170EE(1)(b)(ii) requiring the respondent to pay to the applicant the remuneration lost by him because of the termination. I also consider it to be appropriate to make such an order. The applicant has been unemployed since his termination apart from one day's work with "Soiland". I will order that the loss of remuneration be based on the net wages the applicant would have received, with the respondent remitting the taxation to the Australian Tax office: Klingenberg & TWU v I.R. Cootes Pty Ltd, unreported, IRCA No. 398/95, Marshall J, 24 August 1995, page 12. I was informed by the parties that the applicant's net weekly wage was $438.00. The applicant was paid two weeks' wages in lieu of notice, so that he did not commence his loss of remuneration until 22 September 1995. I will order the respondent to pay to the applicant the amount of $438.00 per week or part thereof from 22 September 1995 until the date of reinstatement, less the amount the applicant was paid for his work with Soiland. If the parties are unable to agree this figure there will be liberty to apply on 48 hours notice. I will order that the amount to be paid to the applicant be so paid within 14 days. Mr Herron also sought damages for the applicant due to the fact of the termination including the anxiety and distress that the termination of employment and subsequent unemployment caused to the applicant. However, Section 170EE of the Act does not permit such a general damages order to be made. Section 170EE(2) only permits the Court to make an order for compensation where reinstatement is impracticable. This is not such a case. I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment of Judicial Registrar Ritter. Associate Date: Counsel for the applicant: Mr M E Herron Solicitors for the applicant: Gibson & Gibson Representative for the respondent: Mr O'Sullivan Hearing date: 29 & 30 November 1995 Judgment date: 21 December 1995