MELVILLE v BILD-IT Home Improvement Warehouse Pty Ltd [1997] IRCA 45

DECISION NO:45/97 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AI 1096 of 1996 ANDREW BRIAN MELVILLE Applicant BILD-IT HOME IMPROVEMENT WAREHOUSE PTY LIMITED Respondent Coram: Judicial Registrar Linkenbagh Place: Canberra Date: 17 February 1997 REASONS FOR JUDGMENT Delivered ex tempore and revised from the transcript This is an application under section 170 EA of the Workplace Relations Act, 1996,filed in the Australian Industrial Relations Commission on 15 August 1996 in which the applicant seeks a remedy in respect of the termination of his employment by the respondent. He was employed as a Sales Assistant at the respondent's hardware store which was located at Erindale in the Australian Capital Territory. He had worked for the respondent since 27 March 1995 although he had been employed with previous owners of the business since 8 December 1988. The employment came to an end of 21 May 1996. The evidence shows that at least at January 1996 the respondent had concerns about aspects of the applicant's manner and behaviour in the workplace. At that time there were discussions involving the applicant and representatives of the respondent and the Shop Distributive and Allied Employees Association representative. Exhibit A is a typewritten letter dated 16 January 1996. The evidence is that it is a typewritten version of a handwritten letter which was handed to and discussed with the applicant on 16 January 1996. The original handwritten document is not before the Court and the applicant's evidence neither confirmed nor denied that he had received the handwritten document. The Court accepts the applicant's evidence that he never received the typewritten version of the document, but equally accepts the evidence of Mr Hook that the original handwritten document was delivered to the applicant by handing it to him on that day and that there ensued a discussion about the contents of the document. Exhibit A expresses the respondent's concerns as: · You bad mouth fellow staff members and external personnel. · Your negative mental attitude is difficult to work with. · Your comments are often destructive. · Attitude such as "can't do", "won't work", "won't happen" are not attributes of someone who aspires to management. · Your self opinionated manner is very irritating to staff members. · Your attitude to the business owners and management is often rude and un-co-operative. · Lack of interest in your position and your own development. · You have an excuse for every problem or have someone to blame. The balance of the letter could be described as, in general terms, critical of the applicant's attitude in the work place. The applicant was therefore as at 16 January 1996 aware that the respondent had concerns about his manner and attitude. That is confirmed by exhibit C which is a letter dated 28 February 1996 from the Shop Distributive and Allied Employees Association to Mr Luxton who is the chief executive of the respondent. That letter confirms that the applicant needed to address the following: 1. Recognising people's rights to privacy and ensuring confidentiality was maintained. 2. Not to interfere in the work of other staff. 3. Asking for help if the work load was too much. 4. Adopting more urgency in his work, and 5. Adopting a more courteous way of speaking to people. The letter further confirms that the Association had had discussions with the respondent as to the possibility of the applicant's attending a training course. The evidence of Mr Luxton today confirms the involvement of the Association and the general nature of the concerns which are expressed in that letter. In April of 1996, the respondent arranged for the applicant to attend a skills course apparently with a view to improving his ability to communicate in a satisfactory manner in the work place. On 9 May 1996, Mr Jones, who is the branch controller for the respondent, had a conversation with the applicant in which the applicant was asked to sign a document evidencing that he had read and noted the respondent's policy and guidelines and that he understood that it was a condition of his employment that he strive to work within the framework of the policy and guidelines. Mr Jones asked the applicant to sign the acknowledgment after the applicant had refused a similar request from the manager of the store in which he worked. The applicant did not sign the acknowledgment and Mr Jones made a note on that day that he had discussed the policy and procedures manual with the applicant and that the applicant reserved the right not to sign the manual but respected the fact that he was to work within those guidelines. The policy document was not in evidence before the Court but Mr Jones' evidence of what occurred on 9 May 1996 again lends weight to the other evidence from which it must be concluded that the applicant was aware of the standard of behaviour which was expected of him. It is against that background that the events which occurred later in May 1996 must be seen. Mr Eriksson was at that time a 19 year old serving a traineeship arranged through the Commonwealth Employment Service. Mr Eriksson gave oral evidence that his relationship with the applicant was "not too good at all". He said that he was the butt of jokes and that the applicant gave him "a hard time" asking him to do tasks for which Mr Eriksson could not see the purpose. Mr Eriksson told the Court that he was called by the applicant "a half-wit" a "bloody idiot" a "wimp" and "the lowest of all employees", amongst other things. Mr Jones had a conversation with Mr Eriksson on 18 May 1996 when he met Mr Eriksson on a casual visit to the store and inquired as to how Mr Eriksson was progressing. Mr Eriksson informed him of his feelings that he was being victimised and put down by the applicant. Mr Jones' evidence to the Court of what Mr Eriksson said to him on that day confirmed Mr Eriksson's evidence as to the kind of comments which were made to Mr Eriksson by the applicant. At around the same time it had come to Mr Jones' attention that there had been a series of events in the store involving a Mr Gooch two or three days before 18 May. Mr Jones caused inquiries to be made and ascertained that Mr Gooch, an ex-employee of the store, had visited the applicant at the store on a social basis and had been permitted by the applicant to use the store's telephone. The evidence is that Mr Gooch had remained at the store for an extended period and had used the store's telephone on more than one occasion. Mr Jones inquired of the applicant as to his knowledge of the visit by Mr Gooch, was given an explanation that Mr Gooch was a customer and that he needed to use the telephone to confirm his bank balance and to telephone his employer. Those explanations by the applicant were inconsistent with the results of other inquiries conducted by Mr Jones of Mr Gooch, which revealed that Mr Gooch was unemployed and that the purpose of at least one of the telephone calls made by Mr Gooch was something to do with parts for a Valiant car. The combination of events which came to the knowledge of Mr Jones by the 18 May 1996 caused Mr Jones to embark on the course of conduct which finally led to the termination of the applicant's employment on 21 May. The Court has assessed the relative credit of some of the witnesses. The applicant, in many of his answers gave evidence which was vague, evasive and unconvincing. An example is his failure to address the the question of his receipt of the handwritten letter of 16 January 1996. A further example is his evidence that conduct which he described as "sledging" was conduct which was engaged in by everyone in the workplace. That evidence must be seen in the light of the impression given to the Court by Mr Luxton, Mr Jones, Mr Hook and Mr Eriksson. The applicant's evidence that everyone in the workplace used language of the kind described by Mr Eriksson is difficult to believe. The applicant's evidence to the Court about the visit by Mr Gooch to the store is a further example. Against that impression of the applicant, the Court has Mr Eriksson, who is a young man who was patently honest and helpful. The applicant's evidence was that Mr Eriksson engaged in conversation with him in similar terms to those used by the applicant. Mr Eriksson denies that he did so and told the Court that he would have told the applicant that he did not like being treated in the manner that the applicant treated him and the Court accepts that Mr Eriksson was not a willing participant in the kind of conduct described or attributed to the applicant. Mr Jones impressed the Court as an experienced manager who, in his approach to the persons in the employ of the respondent, was considerate and fair. The Court particularly notes the concern of Mr Jones that, having terminated the applicant's employment, he saw that it was proper not to have the applicant return to the workplace because he wanted to avoid any repercussions for Mr Eriksson. Mr Jones' evidence indicated that he was concerned to balance the interests of all concerned and that he did so. On 21 May Mr Jones, in the company of two others from the workplace, interviewed the applicant. His version of the conversation varies from that of the applicant. Mr Jones referred to his notes made at the time in giving his evidence and the Court is satisfied that Mr Jones put to the applicant his concerns about the applicant's conduct. It can always be said in hindsight that a respondent could or should have done more to explain the complaints made against an employee. The question for the Court to decide is whether, in the words of section 170DC, the employee has been given the opportunity to defend himself against allegations made in respect of that employee's conduct or performance. This Court is satisfied that Mr Jones gave the applicant that opportunity. Certainly it was all done orally. The Act does not require that any procedures be in writing. The question is whether or not the applicant was made sufficiently aware of the nature of the complaints against him to afford him an opportunity to defend himself. In this case the applicant's own evidence is that he did not deny his conduct but explained it on the basis that it was common practice in the workplace. This Court has no doubt that the applicant was well aware of what was put to him at the meeting on 21 May. He made no request for further time. He made no request for the intervention of the Association and that is in spite of the extensive use that he had made of his Association's services earlier in 1996. The applicant submitted that the decision to terminate his services had been made prior to the meeting. There is no evidence of that and the Court accepts the evidence of Ms Jones in cross-examination that the outcome of the meeting was to depend upon the explanations given by the applicant. Mr Jones did not find those explanations satisfactory to save the applicant from the consequence of termination of his employment. There is evidence that there were good reasons for the termination at that time and that the explanations offered by the applicant, particularly in relation to Mr Gooch, were unsatisfactory. There can be no doubt that the respondent's confidence in the applicant's ability to discharge his duties satisfactorily was destroyed. The applicant's representative sought to rely on a statement in the decision of Judicial Registrar Patch in Burgess v The Snowy Mountains Engineering Corporation Limited (Unreported Judgment No 554/95)where the Judicial Registrar said that an opportunity to respond to allegations made after an irrevocable decision to terminate employment has been made is not "an opportunity" within the meaning of section 170DC of the Act. That is a statement of the obvious. I find in this case that there was no irrevocable decision made prior to the meeting on 21 May and little assistance can therefore be gained from that decision. The applicant became re-employed a month after the termination of his employment with the respondent. He did not file his application in the Australian Industrial Relations Commission until 15 August 1996 and when asked by the Court during this hearing why there was such a delay he laid the blame for the delay at the door of the Association. The last event in the evidence is that the respondent wrote to the applicant on 16 August 1996 after it received the application to the Commission. That letter confirms that the employment was terminated for reasons explained to the applicant at the time of termination. It goes on to say, Continually being negative towards the company and management, treating your fellow employees in a degrading manner, abuse of phone privileges as set out in the policy manual - all of these factors contributed to your dismissal. That letter was written after the event and certainly does not, on its face, purport to be an all encompassing statement of the reasons for the termination of this employment. The applicant's conduct in May of 1996 was conduct unacceptable in any workplace, and his particular conduct towards Mr Eriksson causes the Court to make that finding. His conduct must be seen in the light of the the history back to January 1996. The Court precluded the parties from going further back before January 1996 in relation to the applicant's work history. The evidence clearly shows that the applicant was aware in January of 1996 of the concerns of the respondent in relation to his manner and attitude in the workplace. His conduct in May of 1996 in the Erikson and Gooch matters clearly indicates that he did not learn the lesson which the respondent gave him the opportunity to learn and there was every valid reason for the termination of his employment. There has been no breach of the relevant sections of the Act and the application is dismissed. I certify that this and the preceding 4 pages are a true copy of my Reasons for Judgment Judicial Registrar Linkenbagh Date: 27 February 1997 Representative of the Applicant: Ms J Duncan Shop Distributive and Allied Employees Association Representative of the Responent: Mr M Long ACT and Region Chamber of Commerce and Industry CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION - CONDUCT - VALID REASON - PROCEDURAL FAIRNESS Workplace Relations Act 1988 ss 170 DC EA Burgess v The Snowy Mountains Engineering Corporation Limited (Patch JR Unreported Judgment No 554/95) ANDREW BRIAN MELVILLE-v-BILD-IT HOME IMPROVEMENT WAREHOUSE PTY LIMITED No. AI 1096 of 1996 CORAM: LINKENBAGH JR PLACE: CANBERRA DATE: 17 FEBRUARY 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AI 1096 of 1996 ANDREW BRIAN MELVILLE Applicant BILD-IT HOME IMPROVEMENT WAREHOUSE PTY LIMITED Respondent Coram: Judicial Registrar Linkenbagh Place: Canberra Date: 17 February 1997 MINUTES OF ORDERS THE COURT ORDERS THAT: The application is dismissed Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules