Elhanna v Tubengineers Pty Ltd [1996] IRCA 147

DECISION NO: 147/96 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - VALID REASON - poor performance and failure to comply with company policy - COMPENSATION in lieu of notice - whether failure to attend to work for balance of period of notice given and claim for workers compensation payments precluded claim for compensation in lieu of notice Industrial Relations Act 1988 ss. 170DB(1), 170DC, 170DE(1), 170DE(2), 170DF(1)(a), 170EE(5) GEORGES ELHANNA - v - TUBENGINEERS PTY LTD No. VI 4359 of 1995 Before: Judicial Registrar Millane Place: Melbourne Date: 22 April 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 4359 of 1995 B E T W E E N : GEORGES ELHANNA Applicant AND TUBENGINEERS PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Millane 22 April 1996 THE COURT ORDERS THAT: 1. The applicant's application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 4359 of 1995 B E T W E E N : GEORGES ELHANNA Applicant AND TUBENGINEERS PTY LTD Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 22 April 1996 REASONS FOR JUDGMENT The applicant is a 28 year old migrant from Lebanon who came to Australia when he was 21 years of age having studied to be a mechanic and having had some experience in metal polishing. He did not obtain employment until he was 23 years old, commencing work with the respondent as a trainee metal polisher pursuant to a Jobstart Agreement entered into on 23 August 1993. The applicant's employment was terminated by the respondent on 8 August 1995. He alleges that such termination was a breach of Division 3, Part VIA of the Industrial Relations Act 1988 (the Act); in that, it contravened sections 170DF(1)(a), 170DB(1), 170DC, 170DE(1) and (2) of the Act. The allegations made pursuant to section 170DF(1)(a) of the Act relate to an alleged termination for a prohibited reason; namely the employee's temporary absence from employment due to illness. This allegation was not notified to the respondent before the hearing and was not really spelled out until the applicant's submissions were made even though the applicant's counsel was invited by the Court to open its case and provide details of the section or sections relied upon by the applicant in making his claim. As it turned out there was really no evidence to substantiate such a claim or indicate to the Court that there were any temporary absences due to illness which might be remotely linked with the termination in the period preceding the claim; much less the entire period of the applicant's employment. The applicant made repeated allegations that because he suffered a number of injuries during his employment and, in particular, a bronchial complaint precluding him from working in the wash section of the respondent's plant he was discriminated against by the factory manager leading to his termination. My conclusion after hearing all the evidence is that if any claim was meant to be articulated pursuant to section 170DF(1) it was more appropriately made under paragraph (f) of that sub-section, which prohibits discriminatory behaviour by reason of an employee's physical disability. This observation should not be construed as in any way suggesting that the evidence before the Court supported such a claim or that the respondent in this case was required to prove the negative proposition that it did not take into account any physical disability in terminating the applicant's employment. The respondent defended the proceeding by pointing to the applicant's capacity to perform the tasks allocated, his performance in a number of areas of the plant and his failure to observe company policy prohibiting smoking at times other than at tea and lunch breaks. THE SECTION 170DB(1) CLAIM Insofar as a claim was made for damages for the payment of compensation in lieu of notice the respondent denied that any monies were owing alleging that the applicant was given two weeks notice on 8 August 1995, which period he was required to work. However, he only worked to Friday, 11 August 1995 when he was given confirmation in writing of the termination of his employment (see Exhibit R5). He failed to return to work for the balance of the notice period, filing a claim for Workcover payments after attending a doctor on 14 August 1995 and obtaining a medical certificate for the period 14 August 1995 to 21 August 1995. This medical certificate referred to a soft tissue injury to the applicant's right rib cage sustained on or about 29 June 1995 in the course of his employment. After the date of injury the applicant returned to work on the next day but continued to be troubled by the injury; although x-rays then showed no evidence of any fracture. X-rays obtained by the applicant in October 1995, some months after his employment ceased, did suggest a fracture at the site of the injury but these x-rays appear to have been obtained after his claim for Workcover payments was rejected by the respondent's insurer. The applicant does not appear to have taken any steps to pursue any right he may have to appeal against the insurer's determination. Be that it as it may, he now seeks payment of damages for the balance of the notice period in circumstances where he did not challenge the respondent's allegation that he was to work the period of notice, having left within three working days and having claimed Workcover payments for the period from 14 August 1995 onwards, covering as it did the balance of the period of his notice. Section 170DB(1)(a) states: "170DB(1) An employer must not terminate an employee's employment unless: (a) the employee has been given either the period of notice required by subsection (2), or compensation instead of notice; or ..." The applicant was entitled to two weeks notice and it is not disputed that he was given this period. The doctor's certificate provided for the period from 14 August 1995 shows that the applicant was medically unfit to complete the period of notice and because of this sought Workcover payments. He would not have been otherwise entitled to payment of his full wages during the period of his unfitness for work as well as seeking and obtaining Workcover payments. In these circumstances, it appears that the respondent has done all it should have done to comply with section 170DB(1)(a) of the Act, there being no statutory obligation on an employer to give compensation in lieu of notice if any employee decides not to or, because of other circumstances, does not perform work during the notice period. Most employers see the good sense in allowing employees to leave immediately with compensation in lieu of a period of working notice, however, this is not what the statutory provision requires. No submission was put to the Court regarding any entitlement the applicant may have had to claim payment of sick leave or any make-up pay in the period alleged. Accordingly, no basis has been provided for ordering the payment of damages pursuant to section 170EE(5) of the Act. WITNESSES The applicant gave evidence and the respondent called the following witnesses: (a) Anthony Farrugia (Farrugia), production manager formerly employed by the respondent as its factory manager between August 1993 and August 1995; (b) Mario Victor Tabone (Tabone), supervisor of the respondent's metal polishing shop and stainless steel fabrication; (c) Samuel Mudaliar (Mudaliar), supervisor of the respondent's bending division; (d) Sandra Dorothy Abbey (Ms Abbey), a storeperson/clerk employed by the respondent; and (e) Norman Leonard Abbey (Abbey), the respondent's managing director. My observation of all the respondent's witnesses left me with the impression that they were witnesses of truth and provided the Court with consistent and reliable evidence concerning principally the applicant's performance and the matters surrounding the termination. In contrast, the applicant's evidence was contradictory, inconsistent and lacked credibility. For instance, he steadfastly asserted that Farrugia and his various supervisors had praised his work performance over the two year period of his employment and had not verbally criticised that performance. In cross-examination he eventually conceded that there had been complaints made directly to him and a suggestion by Farrugia that the applicant obtain other more suitable employment if he did not feel he could do better in the performance of his work. He also agreed that there had been a discussion when he sought to change to work in another section of the factory seeking from this a last chance with the respondent. However, in the applicant's opinion the complaints and criticisms were wrong. Against the evidence of all the other witnesses concerning particular events the standard response was that they were lying. THE SUBSTANTIVE CLAIM The respondent is a tube bender and fabricator of tubular equipment with a large factory site divided into a number of areas of plant and processes. In 1993 Farrugia was employed as the factory manager when he interviewed the applicant for the position of metal polisher. At interview he was informed that the applicant had some experience and this information was also conveyed to Tabone, the supervisor of that area. The applicant spent some months in this part of the factory reaching the stage where both Farrugia and Tabone claim he was competent in the sense that he was capable of performing the tasks allocated, however, when left to his own devices his performance deteriorated and the quality of the work was unacceptable. Farrugia alleges, and I accept his evidence, that he counselled the applicant on a number of occasions on his poor performance and because of this and Tabone's dissatisfaction with this worker Farrugia moved the applicant to the fabrication area of the factory. Initially, he was involved in the wash section which involved the applicant in exposure to steam and possibly chemical fumes. This caused bronchitis and his doctor recommended that the applicant be temporarily removed from the area and given a respirator if he worked in the area again. The respondent quite properly investigated the complaint because of the safety implications it raised and eventually the applicant's claim was accepted by the insurer with him having little time off work because of the illness. As a precaution the respondent decided to move the applicant from the wash section altogether into fabricating only. This was the only move not related to his performance. The new position was one where the applicant was trained and again whilst he appeared to have the aptitude for the work performed he failed to provide a consistent standard of performance and was apt to disappear from the work area for long periods apart from the breaks allocated by his employer. All the witnesses who had anything to do with the applicant's work gave evidence that he was in the habit of disappearing and spending long periods either in the toilets or outside having a smoke. When he was sought out he gave various excuses, however, from time to time he was discovered away from his work site. For instance, Mudaliar gave evidence that on one occasion when he went looking for the applicant he found him in the toilet eating his lunch. On other occasions he was found outside having a cigarette. Because the applicant's performance was not acceptable, Farrugia again had occasion to counsel him at which time the applicant asked for one more chance and asked to be transferred to the tube bending section of the factory. Extra staff were not needed however Farrugia acceded to the applicant's wish and arranged with Mudaliar to take the applicant on having him double up with another worker on a machine and providing him with standard and simple tasks. One of the applicant's claims is that he was never warned or properly warned that his employment was in jeopardy. It is apparent from Farrugia's evidence that there was no express warning; verbal or in writing, however I am satisfied on the evidence that because of the earlier statements made to the applicant on finding suitable employment and the applicant's request for one last chance by being transferred to the bending section of the plant, the applicant was under no illusion that his performance was not at an acceptable standard and his employment was in jeopardy. Farrugia and Mudaliars' evidence show that the applicant did not improve with the opportunities given despite more verbal counselling and in August 1995 Farrugia asked the applicant to assist Farrugia and another employee in duties requiring the sorting of materials and some storeman duties. The applicant managed to make the first job last well beyond the time estimated by Farrugia as a reasonable period of time in which to complete the task. I accept Farrugia's evidence that over a two day period he spent a considerable amount of time looking for the applicant who disappeared from the job for various and unexplained periods of time. On Tuesday, 11 August 1995 the applicant was supposed to be working in the storeroom. It was the evidence of Ms Abbey that he again went missing and when Farrugia enquired she was unable to say where the applicant was. In Court it was alleged by the applicant that he told his supervisor that he was suffering from diarrhoea; although there was no evidence that any such report was made by him. On 11 August 1995 when he went looking for the applicant, Farrugia found him outside smoking at a time when he was not on an authorised break. There was no dispute that the applicant understood the rule that he could only go outside to smoke during the allocated periods for breaks. There was a complete ban on smoking in the factory. When he found him outside Farrugia challenged the applicant, observing that he was, in Farrugia's words, "already on a fine thread". This presumably was a reference to the applicant's earlier counselling and "last chance" discussions. The applicant claimed to need a break and need more than the three breaks the company allowed each day. This response drew the retort from Farrugia that the applicant should look for another job because the three breaks were all he could have. He next invited the applicant into the office, telling him he would give him two weeks' notice and then let, as he puts it, the applicant "think" for 15 minutes, again asking him into the office to discuss his future. Before the abovementioned meeting he had instructed the applicant to return to work. It is contended that at that stage, despite the submissions from the applicant's counsel to the contrary, the earlier conduct did not amount to termination of the contract of employment or termination at the initiative of the respondent. Given the events which followed I am inclined to the view that termination did not occur until later at the conclusion of the meeting with the applicant; which meeting was witnessed by Mudaliar. At this meeting Farrugia methodically took the applicant through each area of complaint as to his performance and breach of company policy, giving the opportunity as he did for the applicant to further respond or provide an explanation. Indeed, both Farrugia and Mudaliar said that even at the end of the meeting the applicant was given the opportunity to approach senior management if he did not agree with the decision to terminate him. The applicant did not avail himself of this further opportunity, but instead shortly after the meeting concluded, returned informing Farrugia that Farrugia could not terminate his employment because he was, "going on Workcover". In response Farrugia told the applicant that this action was not fair and asked the applicant if he wanted Farrugia to retract the two weeks' notice and "use this as a final warning". The applicant was not responsive to the last offer and reiterated his decision to go on Workcover. Quite independently of the discussions leading to his termination the applicant also confronted Ms Abbey in the storeroom telling her he did not care if he was dismissed because he would "go on Workcover". FINDINGS I am satisfied on the evidence that the respondent had a valid reason for termination; namely, poor performance and the repeated failure to observe company policy. Because of this finding, it follows that the respondent has discharged the burden of proof it carries under section 170DE(1) of the Act. The evidence also leads to a conclusion that the warnings given were clear enough for the applicant to understand that he was on his last chance and throughout his employment; not to mention on 8 August 1995 he was given an opportunity to explain his performance and the breaches of company policy and take matters further with management if he was not in agreement with the decision made and conveyed to him at the end of the meeting on 11 August 1995. Mudaliar corroborated Farrugia's account of the applicant not contesting in conference the matters contained in the confirmatory letter of termination (see Exhibit R5). This was in stark contrast to the applicant's evidence that he had denied and contested the performance allegations in his final interview. I am satisfied that despite his use of an interpreter in Court the applicant had always communicated with the respondent in English and there was no suggestion that his command of written or spoken English was so deficient that he was not in a position to understand or respond at all relevant times. The abovementioned matters lead inexorably to the conclusion there was no discernible absence of procedural fairness in all the circumstances. Accordingly, the order I make is that the application is dismissed. MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The applicant's 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 nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: .................................................. Dated: 22 April 1996 Solicitors for the Applicant: Eggleston, Clifton-Jones & Co Appearing for the Applicant: Mr W. Jonas Solicitors for the Respondent: Phillips Fox Counsel for the Respondent: Mr A. Lindeman Date of hearing: 4 & 5 March 1996 Date of judgment: 22 April 1996