KUMAR v FISHER & PAYKEL MANUFACTURING PTY LTD [1997] IRCA 117

DECISION NO:117/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION — MISCONDUCT — WHETHER PROOF OF VALID REASON — REMEDY WORKPLACE RELATIONS ACT 1996, s170EA, 170DE(1), 170EE(3) Nettlefold v Kym Smoker Pty Ltd IRCA Lee J 4 October 1996 unreported Kerr v Jaroma Pty Ltd IRCA Marshall J 7 October 1996 unreported Thomas v Lynch IRCA Wilcox CJ 20 December 1996 unreported JACQUELYN MARGARET KUMAR v FISHER & PAYKEL MANUFACTURING PTY LTD QI 96/1128 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 17 MARCH 1997 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI96/1128 QUEENSLAND DISTRICT REGISTRY BETWEEN: JACQUELYN MARGARET KUMAR Applicant AND: FISHER & PAYKEL MANUFACTURING PTY LTD Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 17 MARCH 1997 MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The application be allowed. 2. The respondent pay to the applicant the sum of $5400 within 14 days of this order. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI96/1128 QUEENSLAND DISTRICT REGISTRY BETWEEN: JACQUELYN MARGARET KUMAR Applicant AND: FISHER & PAYKEL MANUFACTURING PTY LTD Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 17 MARCH 1997 REASONS FOR JUDGMENT The applicant is now aged 25, having been born on 18 July 1971. At all material times, the applicant was employed as a process worker in the respondent's factory at Cleveland, Brisbane. Her duties included the brazing of items which were part of the equipment which went to make up refrigerators. The applicant had been in the respondent's employment since mid-March 1994. On 30 July 1996, the respondent summarily terminated the applicant's employment. At trial, the respondent relied on 3 reasons for so doing, arising out of an incident which occurred shortly after the applicant commenced work on that day. The reasons advanced were intentional damage to product, failing to comply with a reasonable instruction from a supervisor, and verbal abuse of that supervisor. I now turn to the evidence in the case. EVIDENCE What follows is a traverse of what I consider to be relevant features of the evidence. A Mr Wellington was the leader of the team in which the applicant worked, her area being brazing. As of 30 July 1996, there were 11 in the team. Mr Wellington had been about 10˝ years in the respondent's employment, having become team leader about 18 months before 30 July 1996. Refrigerator cabinets were propelled along a conveyor line. Overhead were extraction hoods used for extracting fumes during the brazing process. The applicant and Mr Wellington both started work on the relevant day at 6.30 am. At about 6.35 am it came to Mr Wellington's attention that the start-up (the lighting of gas for the brazers) had not occurred. It was the applicant who drew this to his attention. She was agitated about the start‑up not having occurred. He rectified the situation. Away from the applicant's work area, there was another problem (with a charge board). He left the applicant's area to attend to this. Mr Wellington next saw the applicant at about 6.50 am. He saw her hitting the back of a fridge with an extraction hood. The extraction hoods are made of stainless steel. He said to her, What are you doing to the fridge? You are damaging it. She said, I don't give a fuck about this fridge. He said, Stop doing it, then noticing several dents on the back panel of the fridge. The applicant did not stop, but said, The fucking extraction is not sticking to the fridge. She also said, Fuck off, Tom, I've already had a bad start to the morning. Mr Wellington gave evidence that this incident upset him. The applicant was aggressive. If she had a problem with plant, there was a light available to her which she could have operated to attract his attention. Mr Wellington gave evidence that the day before he had learnt of a problem with the extraction hood being used by the applicant on the day of the incident. While he arranged for it to be fixed, the fixing had not in fact occurred when the applicant came to use it. He did not think to tell the applicant at the start of work that there was a problem with the hood. There were suction caps fitted to the hood, these being designed to allow it to stick to a refrigerator to extract fumes during the brazing process. The hood in question was not sticking as required. After the incident, Mr Wellington approached his supervisor, a Mr Moore, team co-ordinator, and told him what had happened. Mr Moore then set up a meeting which took place at about 8 am. Present at the meeting were a Mr Pullar, personnel manager, Mr Moore, Mr Wellington, a Fiona Dawson, one of the union delegates, and the applicant. Mr Wellington gave evidence that the applicant was agitated and aggressive at the meeting. When the gist of the allegations were relayed to her by Mr Pullar, she said, Have you got to suck arse to get anywhere in this place. You (referring to Mr Wellington) have favourites. I don't give a fuck about the fridge. The applicant gave no explanation for her earlier behaviour. Mr Wellington swore that following the incident he saw several deep dents to the back panel of the fridge. These required repair. In cross-examination, he described these as 5 major dents. He said that he had not had occasion to speak to the applicant before about her work. He agreed that she was a very good worker, with a clean sheet. She was not prone to going off like she did during the subject incident. Mr Wellington agreed in cross-examination that there had been a problem on and off for months with the hoods not sticking. He agreed that the workers had to push the hoods on to the refrigerators to make them adhere. He did not agree that what he saw the applicant doing was trying to get the hood to stick. He said that the period of her insubordination, that is from the time he told her to stop banging the hood until she stopped, was maybe 30 seconds. He agreed also that there had been incidents of workers being struck by hoods which had failed to stick. Mr Wellington attended only the first part of the 8 am meeting. There was a break in the meeting. After the break, the applicant was informed that her employment was to be summarily terminated. Mr Wellington agreed that while he was present for the first part of the meeting, he did not raise with Mr Pullar and Mr Moore the start-up problem at the start of work that day or the defective hood with which the applicant was working. However, in re-examination he said that Mr Moore knew the subject hood was faulty, he having told Mr Moore of that before the meeting. He also said that after he told the applicant to stop banging the hood on the fridge, she made 1 more dent in the fridge. Mr Pullar gave evidence that between Mr Moore and himself the allegations relied on by the respondent were relayed to the applicant at the 8 am meeting. He swore that he became aware during the course of the meeting that there had been the pre-existing problem with the subject hood not sticking. His evidence was that the applicant's general demeanour during the course of the meeting was cynicism about both Mr Wellington and the respondent. She referred to the need to kiss arse. She did not apologise or express remorse over what had earlier occurred. He did not accept at the opening of the meeting that he used words to the applicant to this effect, You are here for instant dismissal, for malicious damage and abusing Tom. Mr Moore and he took the decision to summarily terminate the applicant's employment, that decision being made during the break in the meeting. Mr Pullar gave evidence that the factors he took into account in reaching the decision were the applicant's failure to comply with Mr Wellington's reasonable instruction (to desist), her totally inappropriate response to him (fuck off), and the damage to the refrigerator. In cross-examination, Mr Pullar agreed that he had received a very one-sided version of the events from Mr Wellington and Mr Moore prior to the meeting. This concession was made in light of the fact that he had agreed that before the meeting started he had not been informed of the start-up problem that morning, or of the subject hood having been defective from the evening before. He agreed that he did not ever inspect the extent of the damage to the refrigerator, even though during the course of the meeting the applicant disputed the extent of the damage she had caused. He accepted that there was a prospect that if a hood did not stick and then detached, it might injure a worker by striking him or her. He accepted that the applicant would be frustrated with the state of the equipment. He also gave evidence that in making the decision to terminate the applicant's employment, he took into account her negative, cynical attitude during the meeting and her lack of regret. Mr Moore too gave evidence. He claimed to have seen the damage to the refrigerator, describing the area of the dents as being 300 mm square. He considered that the damage he saw was not consistent with an attempt by a worker to attach a hood to a refrigerator. He recommended during the break in the meeting to Mr Pullar that the applicant's employment be terminated. He too pointed to her not appearing very concerned about her actions, and showing very little remorse during the meeting. He claimed that during the meeting the applicant said words to this effect, Only brown noses get looked after and This is basically a shit of a place. It was his recollection that the applicant did not deny damaging the refrigerator, did not deny doing further damage to it after being told to stop, but denied having said fuck off to Mr Wellington. Mr Moore also gave evidence that the participants at the meeting did not inspect the damage to the refrigerator because the applicant showed no remorse. In cross-examination, Mr Moore said that 5 dings in the refrigerator did not suggest attempts by a worker to attach the hood to the refrigerator. He agreed that the incident was completely out of character for the applicant. In re-examination, he referred to the fact that the applicant had been outspoken on other occasions, and had criticised the company. The union delegate who was present at the meeting, Ms Dawson, also gave evidence. She claimed to have seen the damaged refrigerator, and noticed it had 5 dents, 2 being larger than the other 3. She described the applicant in the meeting as rebelling against management. The applicant was swearing and referred to having to suck arse, in reference to Mr Wellington and his alleged pets at work. She claimed the applicant said that she did not care about her job, having just finished a secretarial course. She said in evidence on a number of occasions that the applicant just did not care about what had happened and the incident. She made notes of the events which occurred at the meeting. It was her view that the applicant's employment would not have been terminated had she not behaved as she did in the meeting (that is, before the break). She does not think that there was anything said at the start of the meeting which could have given the applicant the impression that a decision had already been made to dismiss her. While Ms Dawson tried to calm the applicant down, she was very, very angry and hostile. The applicant in evidence denied the gist of the allegations relied on by the respondent to terminate her employment. Her case was that what Mr Wellington witnessed her doing was trying to get the hood to stick to the refrigerator. She claimed that her efforts had caused only 2 small dents to the refrigerator. She denied having caused further damage to the refrigerator after being told to stop, and denied telling Mr Wellington to fuck off. Her account of the first meeting was quite different from that of the respondent's witnesses. She claimed that none of the other participants was listening to her at all, including Ms Dawson. She said that Ms Dawson was treating her like a joke, stupid. Ms Dawson was allegedly backing up Mr Moore in his yelling and abuse of her, and cutting her off, at the meeting. She claimed that the meeting was opened by Mr Pullar telling her that You are here for instant dismissal, for malicious damage and abusing Tom. She denied deliberately damaging the refrigerator. She said that, amongst other things, she had said to the meeting If I had asked Tom to bend over and kissed his arse, I would not be here now. The applicant called several workers in her case. A Mrs George, an experienced process operator on the brazing line, pointed out that the extraction hood was needed for taking away fumes during brazing. It also had a light which was used to see into the back of refrigerators. There was a limited time only to perform the brazing task. She spoke of the frustration that the applicant would have suffered with a non-sticking hood. She also spoke of how non-sticking hoods could detach themselves and fall. She had once been hit on the head by a detaching hood. A Mr Estillore, process worker, had also had experience of extraction hoods sliding down and falling off. He took over from the applicant on the morning of the incident after she went away to the meeting. The subject hood hit him twice on the head. He got frustrated with it and put it aside. A Mr Doevendans, a fellow brazing station operator, confirmed previous problems with the subject hood. He could recall Mr Wellington receiving complaints at a team meeting prior to the subject incident about the hood and its failure to stick. I accept the evidence of these fellow workers. FINDINGS Generally, and unless otherwise indicated, I preferred the evidence of the respondent's witnesses to the evidence of the applicant on any matters in respect of which there are direct conflicts between them. Mr Wellington gave his evidence in calm and measured tones. He was prepared to make concessions on what I took to be appropriate occasions. I did not at all have the impression that he was lying or mistaken about material events. At various times during her evidence, the applicant displayed aggression, and emotion, being reduced to tears on a number of occasions. She appeared to have a fairly volatile temperament. She was also obviously not lacking in intelligence. She had put, in a statutory declaration within a few days of the termination, her version of events. I had the impression that having committed herself in this fashion, she was not prepared in evidence to resile from what had been there recorded. Specifically, I reject her claim that when Mr Wellington first approached her at her work station he said What the fuck are you banging that on the fridge for? ISSUES On behalf of the applicant it was contended there was no valid reason for the termination of her employment and that she had been denied procedural fairness in the manner of that termination. Despite the 3 grounds which the respondent relied on at trial to justify the applicant's termination, the entry in the respondent's personnel file records the reason for termination as being damage (with intent) to product and abuse of team leader. It does not make reference to the applicant's disobedience in the face of Mr Wellington's instruction to stop banging the hood against the fridge. I assume for present purposes that Mr Moore in making his recommendation, and Mr Pullar in accepting the recommendation that the applicant's employment be terminated, took all 3 matters into account. Dealing first with the question of damage, I am not convinced that the applicant deliberately damaged the fridge in the sense of making a conscious decision to do so. Rather the picture I have is that she succumbed to frustration and bad temper brought about by the slightly late start-up and the failure of the hood to stick. It was in a fit of frustration and anger, that she caused the damage to the fridge. This is quite different from a worker, with no apparent reason, calculatedly taking to her employer's property and inflicting damage on it. Her conduct, while not excusable, is capable of being understood. Hers was a volatile temperament. As for the other grounds, I have already noted Mr Wellington's agreement that the act of disobedience on the part of the applicant lasted for all of about 30 seconds in which time another dent to the refrigerator was caused. This is really bound up with the applicant's earlier actions precipitated by frustration and bad temper. The same can be said of her use of the words fuck off to Mr Wellington, words used in the heat of the moment. Being unconvinced that the applicant damaged the refrigerator in the sense contended for by the respondent, I am not satisfied that termination of her employment was justified in all the circumstances of this case – Nettlefold v Kym Smoker Pty Ltd IRCA Lee J 4 October 1996 unreported, Kerr v Jaroma Pty Ltd IRCA Marshall J 7 October 1996 unreported, and Thomas v Lynch IRCA Wilcox CJ 20 December 1996 unreported. She was a good worker, of some standing and with a clean sheet. This behaviour on her part at the workplace was out of character. The matter got out of hand at the meeting called by management because the applicant foolishly went on with a display of aggression and intemperate remarks about Mr Wellington and her employer. There is no doubt in my view that her behaviour at the meeting contributed to her fate. Mr Pullar might sensibly have adjourned the meeting to allow the applicant time to settle down and compose herself, if she were minded to do so. The respondent, as a reasonable employer, ought to have dealt with the matter by giving the applicant an unequivocal warning that behaviour of this sort on her part at the workplace would not be tolerated again. The respondent has not proved it had a valid reason for the termination of the applicant's employment within the meaning of subsection 170DE(1) of the Workplace Relations Act 1996. It is not strictly necessary that I deal with the issue of procedural fairness. I have rejected the applicant's contention that the respondent's managers had made up their minds prior to the meeting to terminate her employment, and communicated that to her at the outset of the meeting. I am left with the impression that there was some indecent haste on the part of the respondent's managers in reaching their decision. In future, they ought to ensure that an employee called upon to defend against allegations has a proper opportunity to confer with any union delegate who may be involved, that they have all relevant facts at their disposal before proceeding to air allegations, and that they display flexibility in the way meetings are conducted to deal with the exigencies of the situation. To be fair to them, no doubt coolness of thought went out the window in the face of the applicant's own conduct at the meeting.