DOUGLASS - v - PURTILL BROTHERS NOMINEES PTY LTD & RYAN -v- PURTILL BROTHERS NOMINEES PTY LTD [1997] IRCA 160

DECISION NO:160/97 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether applicants employed for periods of PROBATION determined in advance - RESIGNATION - SERIOUS MISCONDUCT Workplace Relations Act 1996 ss 170CC, 170DB, 170DC, 170DE(1), Workplace Relations Regulations reg 30B ROSS THOMAS DOUGLASS - v - PURTILL BROTHERS NOMINEES PTY LTD No. VI 1150 of 1997 and ANTHONY ROBERT RYAN -v- PURTILL BROTHERS NOMINEES PTY LTD No. VI 1151 of 1997 Before: Judicial Registrar Millane Place: Melbourne (heard in Bendigo) Date: 15 May 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY B E T W E E N : VI 1150 of 1997 ROSS THOMAS DOUGLASS First-named Applicant A N D PURTILL BROTHERS NOMINEES PTY LTD Respondent A N D VI 1151 of 1997 ANTHONY ROBERT RYAN Second-named Applicant A N D PURTILL BROTHERS NOMINEES PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Millane 15 May 1997 1. The applications in proceeding numbers VI 1150 of 1997 and VI 1151 of 1997 are 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 B E T W E E N : VI 1150 of 1997 ROSS THOMAS DOUGLASS First-named Applicant A N D PURTILL BROTHERS NOMINEES PTY LTD Respondent A N D VI 1151 of 1997 ANTHONY ROBERT RYAN Second-named Applicant A N D PURTILL BROTHERS NOMINEES PTY LTD Respondent Before: Judicial Registrar Millane Place: Melbourne (heard in Bendigo) Date: 15 May 1997 REASONS FOR JUDGMENT Two applications were made to the Court against a common employer. I proceeded to hear both applications at the same time. Both the applicants at the relevant time lived in Mildura and were employed by the respondent between the months of October and December 1996 in its bus and coach business. Following separate interviews they were engaged to work as Country-Link coach drivers on the Cootamundra to Mildura run, with the operation of this run being based in Hay in New South Wales. Each applicant alleges that his employment was terminated in contravention of the Workplace Relations Act 1996 (the Act) and, in particular, sections 170DE(1), 170DC and 170DB. Both applications were defended by arguing that each driver was engaged on a three month probationary period determined in advance and such period was, having regard to the nature and circumstances of the employment, a reasonable one. In respect to the applicant, Anthony Robert Ryan (Ryan), the respondent argued, in the alternative, that on 6 December 1996 Ryan resigned from his employment and that resignation was accepted. It was said by the respondent that in respect to the applicant, Ross Thomas Douglass (Douglass), on 17 December 1996 his conduct was such that it justified summary dismissal. In view of the jurisdictional questions arising under section 170CC of the Act and Regulation 30B of the Workplace Relations Regulations, the applicants were required to discharge the initial burden of proof. THE WITNESSES Both Ryan and Douglass gave evidence. The respondent called the following witnesses: - Edward James Cafe (Cafe), the respondent's operations manager at Hay; - Norman Keith Purtill (Purtill), the general manager and chairman of directors of the respondent company; - Neville Raymond Purtill (Neville Purtill), the administration manager and a director of the respondent company; and - Christine Tayles (Tayles), the respondent's human resources officer. THE CONTRACT OF EMPLOYMENT The question of whether each employee was engaged pursuant to a contract of employment subject to a period of probation is one that must be decided in each case by reference to the credit of each witness called on this issue. This is because there is no documentary evidence detailing and confirming the terms and conditions upon which each driver was engaged in early October 1996. Having heard the evidence and having had the opportunity to observe the demeanour of the witnesses called, my conclusion is that it is more probable than not that the two applicants were each informed in separate interviews that the positions offered to them were subject to a three month period of probation and, subsequently, when they were each telephoned by Tayles to inform them that their applications had been successful, she, apart from revisiting other terms discussed during the initial interview with the employees, reiterated the advice given at that interview that the employees were engaged on a three month period of probation. In concluding that there was a period of probation agreed in advance, I have also been persuaded on balance that such period as was designated was within what I consider to be a range of tolerance that might be regarded as reasonable for probationary employment, having regard to the nature and circumstances of the employment. On the latter point, in my view where there is no objective evidence of a known industrial practice, it would be inappropriate for the Court to suggest that there is only one distinct period which represents a reasonable period of probation and anything over or below that period should be considered unreasonable. Both men at the time of their interviews had limited bus driving experience and as noted below the job advertisement did require them to undergo some appraisal and meet certain requirements. The evidence of the employer's witnesses was that by the date of the terminations neither applicant had been the subject of a driver's assessment conducted by Ian Purtill as discussed at interview and this was just one of the requirements to be met before they would be considered for long term employment. (i) Ryan's Case It was common ground that in response to a newspaper advertisement Ryan forwarded a job application and resume to the respondent, the result of which was that an interview was arranged for 8.30am on Saturday, 5 October 1996. At the time of the interview Ryan had six months' experience with a Melbourne bus company as a casual employee driving buses on a Victorian licence. The respondent in late September 1996 won a tender for the Country-Link contract from Cootamundra to Mildura to commence from Friday, 11 October 1996. It was agreed that the respondent was then advertising for two drivers to commence immediately and, because of its success in gaining the abovementioned contract, it moved quickly to supplement its existing driver population and find permanent employees for the new run. The advertisement placed by the respondent clearly referred to "... vacancies with a view to long term employment" and further referred to a number of "essential" requirements as follows: "Successful applicants must be able to pass a driver appraisal. Hold a current first aid certificate. Hold or be able to obtain appropriate licences and Driver Authority. Be available for immediate start. Be able to supply a medical certificate from an approved medical practitioner. Have a clean driver safety record. Be able to work flexible rostered hours." The suggestion that there was long term employment available, which suggestion was reiterated during the interview with each applicant, is not inconsistent with any notion of trial or probationary employment. However, the "essential" requirements of the position, which were also discussed at each interview, obviously had to be met by any successful applicant if that person was to gain long term employment as a coach driver on this particular run. These requirements are consistent with a probationary period of employment because they entail some degree of appraisal of ability, the meeting of certain conditions and the confirmation of certain matters including; for example, the absence of any criminal convictions which might preclude a driver from obtaining a New South Wales licence. Both applicants at the time of their interviews held Victorian licences and needed to qualify for New South Wales licences as well as upgrade first aid certificates, obtain medical certificates and obtain New South Wales Driver Authority. When each applicant commenced work on 11 October 1996 they did so on the basis that they undertook training runs and did not themselves drive the coaches for a time until some of the preconditions had been met. So far as Ryan's interview was concerned the two principle areas of dispute turned on, first, whether there was a reference by Norman Purtill to a three month period of probation and, secondly, whether there were representations made by Neville Purtill about minimum earnings, the availability of additional work and the amount Ryan should clear if he performed the extra work. The panel interviewing each applicant consisted of Norman, Neville and Bryan Purtill as well as Tayles. Bryan Purtill did not give evidence. However, the other two brothers did and they both asserted that Norman Purtill told each applicant at each interview that there would be a three month period of probation as well as explaining to the applicants that this probationary period provided a cooling-off period for both the employer and the employee. Tayles corroborated the employer's evidence. As a witness she gave clear and detailed evidence which did not appear to be based on any reconstruction of events or any attempt to mislead the Court in an effort to advance her employer's interest in each of these cases. It was said by Ryan that he made notes during the course of his interview in his diary. Extracts from his personal diary were produced to the Court (Ryan Exhibit A7). The entry for the interview was made on 7 October 1996 allegedly because the 5 October page was already full with appointment information. Looking at the entry for 7 October, I have some difficulty in accepting that the record of the interview, which took up to one and a half hours, was one that was made during the interview. For instance, the first entry next to the date is the statement "Every one in hurry to finish meeting - interview". This is a curious observation to make in recording the interview exchange when at that time the applicant was discussing the terms of his prospective employment and was then very enthusiastic about starting the new job if he was successful. In my view the comment contained in that observation is more likely to have been made and recorded after the relationship broke down. The notes made also appear to be consistent with a later summary of some points of discussion, rather than itemising statements made to him as, for example, the statement "Question by Brian on my ability mechanically (sic) ...". It was argued by Ryan that he was told that the minimum pay would be $540 per week. However, he was also told that he could clear between $740 and $940 per week if he performed extra available work. A note to this effect is contained in the diary entry for 7 October and he relied on this note as confirmation of what he was told. One of the issues between Ryan and the respondent was his concern that he was not being paid at appropriate award rates and had not received overtime payments and other penalty payments he should otherwise have been paid pursuant to the applicable award. At the commencement of the hearing there was an application to the Court to proceed with a claim by Ryan for the recovery of allegedly underpaid wages. This application had not previously been notified to the Court or the respondent and, accordingly, I ruled that it was neither just nor convenient for the Court to embark on an additional enquiry in the time allocated to the circuit hearing. Notwithstanding this ruling, it was noted that Ryan is not precluded from proving an underpayment, if any, in an alternative venue. Indeed, in the absence of proper and detailed evidence on these matters, it would be inappropriate to conclude either that Ryan was paid or not paid as required by any relevant award provisions. For the purpose of this proceeding, the concerns about his entitlement to overtime payments or any additional payments to those paid to him during the currency of his employment, were relevant to whether Ryan had cause to resign and did so on 6 December and equally relevant to whether the respondent had a reason for ridding itself of an employee who pursued his concerns about the payments made to him and the availability of the additional work he alleges was promised at interview. No similar claim as to underpayment was raised by Douglass during the hearing. The respondent's case was that at interview its roster system and the method of payment was explained orally and illustrated by the provision of documents (Ryan's Exhibit A4 and R1) setting out these matters. So far as payment was concerned Exhibit R1 refers to a weekly sum of $546 with a possibility of earning an extra $292 or $520 spread over each three week roster period. In effect, if Ryan did the school bus runs during the seven days he was not rostered to drive a coach in each three week period, it was suggested his average gross earnings could be $644. Alternatively, if he worked in the respondent's roadhouse service station for five days when not performing driving duties in the rostered period, he could average $720 gross per week. Douglass' evidence was such that he appeared to concede that the base rate mentioned to him at interview may have been $546 and not $540 as alleged by Ryan. The fact that Ryan's entry is at complete odds with the respondent's record, the evidence in general and the rate at which he and Douglass were actually paid, indicates to me that it is likely that the diary record was not made contemporaneously and is not a complete and reliable record of the important parts of the interview. Tayles was adamant that when she rang both applicants to inform them that they had been accepted she went through the job description and the terms as well as reiterating the requirement that they serve a probationary period of three months. All the respondent's witnesses including Cafe, who was not a participant at either interview but supervised at the Hay roadhouse, told the Court that the respondent's policy for all new employees was to place them on a three month probationary period of employment. The existence of this policy and the uncontradicted evidence that it applied across the board to the eighty-six or so employees as well as all new employees, makes it more likely than not that the respondent acted to apply the same policy to the two new appointments; although, as with any contract, an inference that may be drawn from a regular course of conduct undertaken by an employer may be rebutted by evidence that the policy was neglected or put to one side in these particular cases. In my view because Ryan's recollection was not a detailed one and his written record is questionable as a contemporaneous record, his oral evidence denying the respondent's witnesses' evidence that he was notified of the probationary employment period on two occasions prior to commencing employment, is not sufficient to displace the inference the respondent asked the Court to draw in relation to the application of its policy. One further matter was raised in relation to the question of the witnesses' credit and the proof available to persuade the Court one way or another that Ryan was informed of the probationary employment when he attended his interview. Ryan's last day of employment was 6 December 1996, despite the fact that he in both his subsequent correspondence and his diary recorded this as having occurred on 13 December 1996. He explained this error by stating that he opened his diary at the wrong date and for a week or so thereafter wrongly recorded the information for each day one week or so later than the actual date. In a telephone conversation with Norman Purtill on 6 December 1996, it was agreed that Ryan raised a number of concerns relating to the fact that he was not earning enough by just earning the base sum of $546 per week. During this conversation it was alleged by Norman Purtill that Ryan resigned and he then put him through to Tayles to discuss his concerns and do what they both referred to as an exit interview. Putting to one side the various claims made about the conversations between Norman Purtill and Ryan and Tayles, when Ryan gave his evidence-in-chief he made no mention of having told Tayles on 6 December in his conversation with her that he had made a tape recording of the original interview. This statement was put to him in cross-examination and he agreed that he made this claim to her. However, the transcript of the proceeding shows that he went on to say that he normally records interviews. He claims he was then trying to convey to her the message that he had not forgotten the interview. Ryan agreed with the respondent's counsel that it was a secret tape recording and he had not told anyone he had made the recording. The tape recording was not produced in evidence and no explanation was given to the Court for this omission. There was discussion during the submissions about whether or not the tape recording ever existed and was capable of being produced in evidence. At that time the applicant's counsel sought to re-open Ryan's case and call evidence from Ryan to the effect that he did not really make a tape recording and his statement to Tayles was said to convince her that he was right about what occurred at the interview. The application to re-open was declined. Nevertheless, it should be noted that if Ryan gave the further evidence his counsel suggested he would give, his statement to Tayles that he recorded the interview was to his knowledge an untruthful one at the time he made it. I was invited to draw an adverse inference from the failure to produce the tape recording or provide an explanation for not doing so. In the circumstances I do draw such an inference; noting also that the discussion about the tape recording of the interview was a discussion that was then consistent with Ryan having ceased his employment and him trying to convince Tayles that he was entitled to the additional benefits he believed he should receive; such as the cost to him of accommodation in Hay before he was given the accommodation at the back of the roadhouse. It was said by Norman Purtill that when he first spoke to Ryan on 6 December 1996, after offering his resignation, Ryan also offered to stay on until the respondent found a replacement. At that time Norman Purtill was grateful for this offer because the company was particularly busy during the December period. They were able to get a short term replacement before Ryan's next rostered date on the following Tuesday. On the Monday Norman Purtill rang Ryan and told him the respondent no longer required him because a replacement had been found. On balance I have accepted the evidence of Norman Purtill and Tayles regarding these last conversations. It was then clear that Ryan was unhappy in the job because he had to travel long distances from Mildura to the Hay base and, because he was not located at Hay, he was not participating in any additional work which would allow him to earn the extra money he sought. Accordingly, I am satisfied that it is more probable than not that he resigned voluntarily. (ii) Douglass' Case After responding to the same newspaper advertisement, Douglass was interviewed on Tuesday, 8 October 1996. It was generally asserted by the respondent that at that interview the same matters as were canvassed with Ryan were raised. However, Douglass was subsequent to the interview informed that he was unsuccessful as a candidate for one of the positions offered. He wrote seeking an explanation and was then offered a position because the other successful applicant had declined the position. As with Ryan I am inclined to the view that the evidence of the respondent's witnesses and, in particular, that given by Tayles, was more reliable and consistent. Accordingly, I am satisfied that on at least two occasions Douglass was informed that the position was the subject of a three month probationary period. One additional factor influencing my finding on this point is that Douglass has a family and a home in Mildura. He, like Ryan, discussed with the respondent his availability to move to Hay where the service was based and where there were opportunities to perform other duties for additional remuneration. He, as did Ryan who shared a house with his girlfriend, indicated that he would be prepared to consider this move. Their responses are consistent with the existence of a period of probationary employment or, as Normal Purtill was said to have described it, "a cooling off period". Obviously it would be a significant decision for anyone to make to sell their home and shift to a new locale hundreds of kilometres away. On 17 December 1996 the respondent summarily terminated Douglass' employment. This occurred following his arrival at the Hay roadhouse and an altercation with Cafe, the operational manager. Insofar as the circumstances leading up to the termination are concerned, I found Douglass' evidence less plausible. He appeared to seek to downplay the significance of his actions which drove Cafe to terminate him. It was common ground that when Douglass arrived at the roadhouse he on no less than three occasions tried to say "hello" to a female roadhouse employee who ignored him. The reason for this was known by him at the time because it appears that he had not had good relations and communication with this employee and another female roadhouse employee over a period of time. By persisting with his attempts to get a response, Douglass appears to have been trying to provoke this employee. Finally, he called her "you idiot" and went outside. Cafe told the Court that Douglass was moody and aggressive and appeared to go out of his way to provoke the other employees. Indeed, Cafe had on previous occasions counselled them all to try and improve their levels of communication. Cafe's evidence is that at about 8.00am on 17 December he was counting money in the office and he heard a commotion and the word "idiot" being used in a raised voice. He was then approached by the female employee about this incident. When Douglass returned he says that, using a tone of voice which suggested he was being dressed down, Cafe asked him why he had called "that girl" an idiot, to which question Douglass replied "listen you arsehole, why don't you get the facts." After saying this Douglass says, somewhat improbably, that he was then asked by Cafe for Ryan's uniform which he had in the bus. As a result he says he asked Cafe outside to give the uniform to him at which time Cafe said "as far as I'm concerned, you're finished" and Douglass then proceeded outside to collect the uniform. He concedes that at that point he understood his employment was terminated. He then returned and threw the keys he had onto the desk at which Cafe was counting money. He subsequently required other keys from Cafe's office to collect his gear and when he returned with these keys, Cafe was on the telephone telling someone he was having trouble with Douglass. When he heard this he claims that he said "you're not having trouble with Ross Douglass, you won't listen ...". Cafe's version of events is one that I accept as being more plausible and consistent with the circumstances in which the men found themselves. Douglass was obviously angry when he was challenged by Cafe and it is more likely than not that he did interrupt Cafe's initial enquiry by saying, as is alleged by Cafe, "listen here arsehole, I'll have nothing of your fucking shit and if you've got anything to say to me get outside and I'll fix you up." Cafe alleges that as Douglass made this threat he brought his right fist to Cafe's chin. At the time Cafe claimed he was very upset and shaken by what he perceived as a serious personal threat. As a result he informed Douglass that he was dismissed and told him he would call the police if Douglass did not leave. Douglass left and returned shortly thereafter violently hurling his keys at the desk at which Cafe was seated striking Cafe on his left arm and thumb. Of course, by that stage Cafe had already acted to dismiss Douglass. According to Cafe there was a further exchange when Douglass returned with the second set of keys and found Cafe on the telephone speaking to Norman Purtill, who confirmed that he had received a call from a distressed Cafe describing the physical and verbal threats set out above. Cafe and Purtill both claim that during their telephone conversation Douglass called out "why don't you tell him what a cunt you are?". The following day Douglass rang Normal Purtill and explained his version of events. Norman Purtill was not satisfied by this explanation and, in effect, ratified the decision to terminate made by his operations manager. Had I not been against Douglass on the preliminary question, I am satisfied on the evidence that on 17 December the respondent had cause to terminate Douglass' employment summarily in circumstances where there was a direct threat of physical violence, which conduct goes to the heart of the contract of employment. In respect to both applications the orders I propose to make are that they be dismissed. MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The applications in proceeding numbers VI 1150 of 1997 and VI 1151 of 1997 are 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 thirteen (13) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 15 May 1997 Solicitors for the Applicant: J.N. Zigouras Counsel for the Applicant: Mr C. Smale Representatives for the Respondent: Bus & Coach Industrial Association (NSW) Counsel for the Respondent: Mr P. Harris Date of hearing: 21, 22 & 23 April 1997 Date of judgment: 15 May 1997