Milagros Wiseman v SHRM (Australia) Pty Ltd [1995] IRCA 685

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - PROCEDURAL FAIRNESS - poor performance - offer to fight - whether VALID REAON- whether in circumstances REASONABLE to warn or counsel - AWARD relevance to proceedings - HARSH UNJUST UNREASONABLE - COSTS.

Industrial Relations Act (1988), ss 170DE, 170DC, 170EA, 347. Hotels, Motels, Wine Saloons, Catering, Accomodation, Clubs and Casino Employees (Northern Territory) Consolidated Award (1986)

A Zarb v Colgate Palmolive Pty Ltd (1993) AILR 62 Lynnette Syme v TharawalAboriginal Corporation, No NI 1467 of 1995 Robe River Iron Associates v The Australian Workers Union, WA Branch (1987) 67 WAIG 320. Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 Byrne v Australian Airlines (1995) 131 ALR 422 Kiel v Kurwen Walker No VI 687 of 1994, Millane JR, 27 October 1994 Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 Canceri v Taylor (1994) 123 ALR 667 Saddington v Oliver and Others (1993) 121 ALR 601 Stone v Darwin Electric Motor Rewinds No DI 135 of 1994, von Doussa J, (Transcript of Proceedings) Earthy v Matarazzo No DI 155 of 1994, von Doussa J, (Transcript of Proceedings) Kent v Civil Aviation Authority of Australia No VI 1321 of 1994, 19 Septemeber 1994, Ryan JR Foxcroft v The Ink Group No NI 477 of 1993, Wilcox CJ Standish v University of Tasmania (1989) 28 IR 129 MILAGROS WISEMAN V SHRM (AUSTRALIA) PTY LTD.

No DI 95/1128 BEFORE: BLOKLAND JR PLACE: DARWIN DATE: 29 December 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA DARWIN REGISTRY No DI95/1128

BETWEEN: MILAGROS WISEMAN (Applicant) AND SHRM (AUSTRALIA) PTY LTD (Respondent) THE COURT ORDERS AS FOLLOWS: (1) The application seeking relief pursuant to Part VIA - Div 3 of the Industrial Relations Act (1988) is dismissed. (2) The application by the respondent for costs in these proceedings is dismissed. REASONS FOR JUDGMENT The Application The applicant Milagros Wiseman applies for a remedy pursuant to ss 170EA and 170EE Industrial Relations Act ("the Act"). It is alleged that the termination of the applicant's employment breached the procedural fairness requirements of the Industrial Relations Act in that the warnings given to the applicant concerning alleged substandard performance did not accurately or fairly reflect the circumstances which they purported to. Further, it was alleged that the termination itself was in effect a summary termination in circumstances which could not be justified. It was argued on the applicant's behalf that the stated reasons for dismissal were not valid and that the termination was harsh unjust or unreasonable within the meaning of the Act. The application is argued in the context of what was suggested to be a work environment in which the operational requirements were continually changing. For its part the respondent relies essentially on two grounds, first, poor performance incorporating lack of improvement after both oral and written warnings and second misconduct, for which dismissal was considered justified without any further warning or discussion. The applicant was given one weeks pay in lieu of notice. Factual Background The applicant commenced employment as a cleaner and bar attendant with the respondent at the "Rustler's Roost" camp in October 1994. The Court was informed that the Rustlter's Roost was a new accomodation complex to house workers from the nearby mine. Initially the applicant's duties comprised 5 hours cleaning per day. She was to clean an accomodation block, a further office block ("Valdora"), and she was told that when the new bar opened, bar duties would be added to her tasks. At the commencement of her employment, the applicant shared the cleaning of the Valdora block with "Belinda", (another employee employed by the respondent). These duties took place generally beteen 5.30 and 6.30am. After cleaning Valdora, the applicant would clean the main accomodation block rooms and showers and collect the rubbish. Many of the duties were undertaken by the applicant and Belinda together. The applicant worked a split shift and finished her morning shift at 11.30 am. She would start work again at 5.00pm and clean the offices of Henry and Walker. The respondent was engaged by Henry and Walker to run Rustler's Roost. During this early period of employment the applicant was principally the cleaner while the other employee, Belinda was primarily involved in bar duties. The applicant was, according to her evidence, initially responsible for the cleaning of some 47 rooms. She would clean the 47 rooms which included making the beds, cleaning the shelves and tidying the personal effects of the residents. She would also mop floors and wipe windows. The applicant's evidence, which on this point I accept, was that initially she was not shown how the work was to be done in the sense that she was not advised of the standard of cleanliness which was expected. Soon after the commencement of her employment, the then manager Daryl Royal advised the applicant that she should not spend so much time cleaning each individual room. In fact she was told that on most days she should spend only three minutes on each room. She was advised that she should undertake a "full service" which included changing linen only once per week. Mr Royal gave evidence that although there were a number of rooms, the applicant was only expected to clean those rooms which were occupied which numbered around 32-40, depending on the shift. Further, Mr Royal stated that a standard clean should take around 3-5 minutes. Although initially this sounded remarkably quick , Mr Royal was quite firm in his evidence that this type of clean was a standard accepted in the industry. He stated that employees were expected to use their discretion depending on the state of the particular room and that a full service was only expected once per week or when a resident vacated the room. When the applicant commenced bar duties she would attend the bar at 7.00pm and she worked behind the bar between 7.30-9.00pm. She would then prepare the bar for the next evening. One of her duties at the bar was to stock the bar for the next day. Initially the applicant's view was that her employment was running smoothly although she says there was a problem with the bar fridge which she coped with by not fully stocking the bar. Later in 1994, some problems were drawn to the applicant's attention concerning the state of the rooms she was cleaning. Mr Royal stated in his evidence that he would counsel the applicant generally about matters concerning her performance. He said this was often done over breakfast . At that point, to call those discussions "counselling" may be overstating the formality of the discussions, especially since those discussions did not take place privately. They were not the type of discussions which would alert the applicant in any sense that her employment was in jeopardy, nor were they so intended . I do find however, that Mr Royal took some steps to ensure that the applicant knew what was expected of her. He was clear however that he did have to discuss her performance in the bar. He stated that the applicant did not like wiping the bar and that he had received complaints about the cleanliness of the rooms. He said that some days the applicant's cleaning was good whereas on other occasions her work was not up to standard or rooms were actuallly skipped. He had spoken to the applicant about the time she took cleaning the rooms. He stated that Belinda, the other employee, could do the same work in about "half the time". According to Mr Royal, the applicant's breaks for cigarettes were excessive. His general view was that the applicant had the capacity to complete the duties required to the relevant standard but her attitude was such that she did not always perform accordingly. On 13 December 1994 the applicant received the first written warning concerning performance. The applicant's evidence was that there was no basis for the warning. Her belief seems to be that the warning may have been connected with an out of hours social trip she made to Darwin with some Henry and Walker employees, (Scott Ferguson, Plucker and Lilim) and that pressure was brought upon the respondent to curtail such trips due to the subsequent poor performance or temporary abscence of the Henry and Walker employees. As I understand her evidence, the applicant thought she was being warned concerning the non-performance of her duties in total on the relevant day. She essentially was of the view that aspects of her work (particularly the cleaning) could be undertaken at any time on the Sunday without any adverse affect to the operation of Rustlers Roost. Mr Royal confirmed in part that there had been some complaint from Henry and Walker to him and that he therefore had to "follow suit". He did not believe the applicant had carried out her full duties on the day in question. He stated however that the complaint he had received in relation to the applicant was to the effect that she had to be woken up to open the bar. Mr Royal explained that the applicant was very offended when he confronted her with the particular allegations, that she simply stated she had done her job and told Mr Royal to go away. The applicant was given the written warning. Mr Royal's evidence was that he asked the applicant to sign the warning and he states that she refused to sign it. The applicant however stated in evidence that she did sign it, that she said words to the effect of "sure, I'll sign it".