Horner v Paper Converting Company Pty Ltd [1997] IRCA 249

DECISION NO:249/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION - VALID REASON - PROCEDURAL FAIRNESS - PRACTICABILITY AND APPROPRIATENESS OF REINSTATEMENT WORKPLACE RELATIONS ACT 1996, s170EA, 170DE(1), 170DC, 170EE Westen v Union des Assurances de Paris, No. NI 2819 of 1995, Madgwick J, 17 December 1996, unreported TALMON HORNER -v- PAPER CONVERTING COMPANY PTY LTD QI 96/1178 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 4 JUNE 1997 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 96/1178 QUEENSLAND DISTRICT REGISTRY BETWEEN: TALMON HORNER Applicant AND: PAPER CONVERTING COMPANY PTY LTD Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 4 JUNE 1997 THE COURT ORDERS THAT: 1. The application be allowed. 2. The respondent pay to the applicant the sum of $20,800 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. QI 96/1178 QUEENSLAND DISTRICT REGISTRY BETWEEN: TALMON HORNER Applicant AND: PAPER CONVERTING COMPANY PTY LTD Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 4 JUNE 1997 REASONS FOR JUDGMENT BACKGROUND At all material times the applicant, now aged 47, was employed by the respondent at its Crestmead plant as a pulperman. The applicant commenced employment there on 11 November 1992. On 8 November 1996 the respondent terminated his employment, citing unsatisfactory work performance as the reason for its decision. The alleged unsatisfactory work performance related to the applicant's driving of a forklift. EVIDENCE In what follows below I traverse what I consider to be the material features of the evidence before indicating the findings I make. The respondent's human resources manager, a Mr Adamson, gave evidence. He recounted that the applicant was first employed by the respondent as a wrapperman. The position he held at termination was as a pulperman, which involved, as a major part of his duties, the use of a forklift truck. The applicant was a licensed forklift driver, having been trained in that regard by the respondent. In early November 1996 the respondent's mill production manager, a Mr Ritchie, brought certain matters concerning the applicant to his attention. These were that, several days before, the applicant, while driving a forklift, had caused another employee in the vicinity to fall over and suffer injury; the following day damage had been caused to a forklift being used by the applicant when a reel of paper he was lifting had fallen and struck the forklift; the night following the applicant had damaged a roller door and fire door in the converting plant while driving a forklift. As a result of what he had been told, Adamson contacted a Mr Jones of the relevant union, for a meeting. Ritchie and he outlined the incidents to Jones, telling him they regarded the incidents as most unsatisfactory, were preparing to bring the applicant in for a meeting that afternoon and felt they had to take some disciplinary action against him. At about 3 pm on 8 November 1996 the applicant, Ritchie, a Mr Naidu (the relevant shop steward) and Mr Adamson met. Adamson and Ritchie put the incidents to the applicant. Adamson claimed that in respect of the injury to the fellow employee, one Loch, the applicant said Loch had stepped back into the path of the forklift. In respect of the second incident, the applicant did not deny that a reel of paper had fallen. He claimed to be more concerned with damage to the reel than with the forklift. He found no damage to the reel and so thought there was no necessity to report the incident. He did not realise he had damaged the forklift itself. In respect of the third incident, concerning the roller door and fire door at the converting plant, the applicant claimed that he had not seen that the roller door was partly lowered. It had been raining and it was night. According to Adamson, after the applicant got past the roller door, he lost it, panicked (thinking of the recent second incident) and just kept going, striking the fire door in the process. Mr Adamson then gave evidence that management told the applicant it was not prepared to recognise the validity of his forklift licence. As forklift driving was a significant part of his job, there was no alternative but to terminate his employment. There were no alternative positions available at the plant. Mr Adamson agreed that while he had raised the question of the applicant's continued employment with Mr Jones, at the meeting earlier that afternoon, he does not recall, prior to actually terminating the applicant's employment, doing so with the applicant himself at the 3 o'clock meeting. Mr Jones did not attend the 3 o'clock meeting. In cross‑examination, Mr Adamson agreed that he was unaware of any formal reporting of previous incidents of breaches of safety rules by the applicant while in the respondent's employment. He thought that the three incidents showed incompetence on the applicant's part. He agreed that the accumulation of the incidents was treated as a serious breach of the regulation of forklift driving by the respondent. He treated these breaches as a reckless disregard of the respondent's safety procedures rather than wilful damage on the applicant's part. Because the versions of the applicant and Loch conflicted about how Loch came to fall, Mr Adamson claimed that he put the Loch incident out of his mind in coming to the decision to terminate the applicant's employment. As for the second incident, Mr Adamson apparently took into account that the applicant had not reported his involvement in it. He based this on the fact that Mr Ritchie had made a statement to a group of employees that whoever had damaged the forklift had better come forward. Another factor he took into account was the manner in which the reels were being lifted into the storage area. According to Mr Adamson, there was an instruction not to lift more than one reel of that size at a time. He was told the applicant had been lifting two reels of that size. He claimed that at the 3 pm meeting the applicant acknowledged he knew lifting two reels was contrary to instructions. As for the third incident, Mr Adamson noted that it was not ordinarily the applicant's job to take paper from the mill to the converting plant. It was ordinarily a storeman's job. His understanding was that the applicant was not given any instruction to take the reel to the converting plant. Mr Adamson acknowledged the applicant's unfamiliarity with the converting plant roller door. Mr Adamson agreed that he thought the applicant was dishonest in not reporting the second incident. More importantly, it was the way in which he was going about the task. He believed from Mr Ritchie that all forklift drivers had had the instruction about carrying one reel of that size only at a time. Mr Adamson confirmed that before the 3 pm meeting he had given instructions for the applicant's termination pay to be made up. He also had an Employment Separation Certificate available at the 3 pm meeting, with the only detail not filled in being the reason for termination. In spite of these factors, he denied in evidence having made up his mind beforehand to sack the applicant. Curiously, he agreed that in the 3 pm meeting he said to the applicant that other issues were preying on his mind which he was not prepared to go into at the meeting. These other issues included the fact that the applicant had had a final written warning about no smoking at the plant. This warning was about July 1996, and it was about October 1996 that he believed the applicant had been found smoking again, and reprimanded. Mr Ritchie gave evidence that he had been the mill production manager for about three and a half years. It was more his decision, than Mr Adamson's, that the applicant's employment be terminated. The damage to the forklift driven by the applicant occurred during the night shift of 5 November. There was a whiteboard on which such details were ordinarily recorded but he saw no report of the damage to the forklift on the morning of 6 November. None of the day operators knew anything of the damage. The applicant came to him about 6 pm on 6 November to say he had done the damage. Mr Ritchie described it as relatively severe damage to the roof of the forklift, with the gas bottle at its rear being pushed out to a 45 degree angle. He claimed that the applicant told him that he was lifting four reels when he knew he was only supposed to lift two at once. He claimed that the applicant said that a few times. He said that he told the applicant this was a serious incident, and asked why he had not reported it. The applicant told him there was no damage to the paper and claimed he did not notice any damage to the forklift. Mr Ritchie told him he had to improve and be more careful. He laughed in the applicant's presence when he saw the roof of the forklift. Mr Ritchie learnt of the third incident and inspected the damage at the converting plant. There he found the roller door dented in, a fire door warning device dented also and a scrape on top of the fire door. Afterwards, he told Mr Adamson of his concern about the applicant and a decision was taken to get hold of Mr Jones, the union representative. At the meeting with Mr Jones, concerns were expressed about the applicant's forklift driving. Mr Ritchie confirmed that all mill staff must be licensed forklift drivers. At the 3 pm meeting with the applicant and Mr Naidu, the incident involving the injury to Mr Loch was discussed. The applicant blamed Loch. Management put that incident aside. In respect of the second incident, Mr Ritchie claimed that all operators should know the company policy about lifting only two reels of the size the applicant was lifting. It had been at least a couple of years that the direction was issued about carrying only two reels of this size. In respect of the third incident, Mr Ritchie gave evidence that there was lighting outside the converting plant roller door and also lights on the forklift itself. He claimed that the applicant said in respect of this incident that having hit the roller door, he panicked, lost it, and hit the fire door. Mr Ritchie agreed that he did not ever indicate to the applicant during the 3pm meeting that his employment was in jeopardy. Mr Ritchie gave evidence that he was concerned that if the applicant were allowed to remain in the respondent's employment driving forklifts, and he had another accident, the respondent would be regarded as negligent. He repeated his concern forcefully that the respondent could not extend any leniency towards the applicant because of his fear of a fatality being caused by the applicant if allowed to remain in the respondent's employ. Mr Ritchie gave evidence also that there were about 22 mill staff, including 3 casuals, at the time of the applicant's termination. He claimed that it cost about $1000 to repair the second incident damage to the forklift. Mr Ritchie acknowledged that he was unhappy with the applicant's performance as a worker. He referred to alleged lateness, smoking in the plant and constant damage in the area where the applicant worked. In respect of the latter, he acknowledged that the damage could have been caused by anyone working on the four production shifts. Despite these concerns, he claimed that none of these other factors influenced his decision on 8 November, to terminate the applicant's employment. It was put to Mr Ritchie that earlier on the day of termination he had said to Mr Jones, the union representative, that the respondent was going to terminate the applicant's employment that afternoon. He could not recall saying this. The respondent called a Mr Clarke, to give evidence. Mr Clarke was a technical officer in the respondent's mill division. He was acting as a night shift manager on 6 November and it was he who received the report from the applicant about the damage to the roller and fire doors of the converting plant. He claimed to have previously spoken to the applicant about his work practices, including the failure to wear safety equipment (earmuffs, gloves, safety goggles) on quite a few occasions over a long period. He claimed to have jotted warnings down in his diary. He claimed also to have spoken to the applicant about smoking on the premises, on 28 October 1996. Mr Clarke typed up a list of entries said to be accurate diary notes concerning the applicant. This list became exhibit A3. His evidence was that Mr Ritchie asked him to go through his diary entries, for the purpose of producing exhibit A3. One of the entries reads: 23/07/96. Caught Talmon driving around Mill on the Forklift with no Earmuffs on. Suggested that he go back to the pulper and get them. Entries in the applicant's passport prove that he was overseas on this date. Mr Clarke's record also refers to incidents allegedly involving the applicant's forklift driving, on 15 September 1996, and not wearing earmuffs on 9 October 1996. I do not accept him in this regard. The applicant gave uncontradicted evidence that both these days were days off for him from work. Mr Naidu, the shop steward who attended the meeting at which the applicant's employment was terminated, could not recall the applicant being warned at that meeting that he was in danger of losing his job. He gave evidence that the respondent's instruction was not to transport more than two reels of the size being transported by the applicant at the time of the second incident. I am uncertain whether he meant to include lifting in his reference to transporting. Likewise, a Mr Chandra, store supervisor, gave evidence about transporting reels but not, as I recall, lifting them. The applicant gave evidence that he was initially a wrapperman with the respondent for about two years. After about six months, he got a learner's permit for forklift driving. He became a pulperman in January 1995. This involved him taking waste from the waste area to the conveyor and adding dye to machines. In respect of the second incident, the applicant gave evidence that he did not report having dropped the reel on the night shift of 5 November. He worked until 6 am on 6 November and was due to start work again at 6 pm on 6 November. After he got to work at 6 pm, a fellow employee asked him if he had damaged the forklift the night before. He went to have a look, saw the damage and then went to see Mr Ritchie to report it to him. He claims he received no reprimand from Mr Ritchie concerning the damage. He denied also saying that he knew he should not have been lifting four reels at a time, while agreeing that he had been lifting four. In respect of the third incident, he admitted to damaging both the roller and fire doors. The applicant denied that at the termination meeting he said words to the effect that he lost it after hitting the roller door at the converting plant. He claimed to have got the shock of his life after being told that his employment was to be terminated. Since termination, the applicant has tried to get other employment, without much success. He has earned from sporadic taxi driving about $1100 gross since termination. He has filled in applications for jobs and has had some job interviews. He has had previous work experience, prior to working with the respondent, in real estate, as a boilermaker and in a shop business. Mr Jones, a full‑time official with the AMWU, gave evidence that at about 12.30 pm on Thursday, 7 November 1996, Mr Adamson contacted him and asked him to be at a meeting at 1 pm the following day. He attended that meeting, and recalled Mr Ritchie telling him that the applicant's employment was going to be terminated. Management wanted to know the union's reaction to this happening. He took the view that there was not much point in him being at the 3 pm meeting (if the respondent had already decided to terminate the applicant's employment). I accept his evidence in this regard. FINDINGS The respondent bears the onus of proving that it had a valid reason or reasons connected with the applicant's capacity or conduct or based on its operational requirements to terminate his employment - ss 170DE(1) of the Workplace Relations Act 1996. Of more recent times, this has been taken to mean that the employer must prove that termination of an employee's employment was justified in all the circumstances - Westen v Union des Assurances de Paris, No. NI 2819 of 1995, Madgwick J, 17 December 1996 unreported. The respondent appears to contend that the applicant was guilty of serious misconduct. I am not so convinced. In respect of the second incident, involving the dropping of a reel, I accept that this was a dangerous occurrence, given that these weigh apparently between 250 and 500 kg. The respondent did not establish to my satisfaction the alleged prohibition on the number of these reels to be lifted at any one time. It is to be remembered that Mr Adamson spoke as if there were a prohibition against lifting more than one of these reels at any time. Mr Ritchie spoke in terms of the prohibition being against greater than two. The evidence of the witnesses Naidu and Chandra concerned an instruction against transporting more than two of such reels at a time. It should be remembered also that the applicant had not been performing the duties he performed on the night shift of 5 November for some considerable period, he having taken over Loch's position that night after Loch's injury. The second aspect was the alleged non‑reporting of this incident and specifically, the damage caused to the forklift. I do not accept that the applicant was unaware of the damage caused to the forklift until the next morning. It is true, however, that he did report it at the start of his next shift. I think that what Mr Ritchie took to be more serious was not what he took to be a late reporting of the incident but the applicant's claim that he was unaware at the time of the damage to the forklift. I am not prepared to find that the applicant admitted to breaching a known company safety rule during this incident. In respect of the third incident, that involving damage to the roller and fire doors of the converting plant, I accept that it is likely the applicant's explanation included reference to losing it. It seems to me that is a likely explanation for how he came to damage the fire door after earlier damaging the roller door. I do not find that Mr Ritchie orchestrated the bogus entries in the diary which Mr Clarke claimed represented accurate accounts of other safety issues concerning the applicant. I think it more likely that Mr Clarke took it upon himself to concoct these entries, to add ballast to his employer's decision to terminate the applicant's employment. I am not prepared to find that the applicant's conduct which led to the second and third incidents amounted to serious misconduct on his part sufficient to justify termination of his employment. He was careless in his forklift driving on both occasions and panicked when he realised the significance of the timing of his damage to the roller door which panic in turn caused him to damage the fire door. In the circumstances, the respondent has not proved it had a valid reason to terminate the applicant's employment. His conduct called for a final warning about his forklift driving and any other matters the respondent considered deficient in his conduct as an employee. Paragraph 170DC(a) of the Act relevantly provides: An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself or herself against the allegations made. I have no doubt that Messrs Ritchie and Adamson had decided to terminate the applicant's employment before their 3 pm meeting with him on 8 November 1996. The paragraph is not complied with by only paying lip service to what it requires. In other words, an employee is not in truth given the opportunity to defend himself or herself against allegations relied on to terminate employment in a case such as this where before hearing the employee the employer has already made up its mind as to the employee's fate. The fact that the respondent had already determined the applicant's fate probably explains why it did not at any time put the applicant on notice that he was in danger of having his employment terminated. Also, it is likely that the decision to terminate was influenced by other features of the applicant's performance as an employee which were not put to him at the termination meeting. The respondent is in breach of both ss 170DE(1) and paragraph 170DC(a) of the Act. REMEDY The applicant seeks reinstatement. It is fair to say that the respondent vehemently opposes this course, the principal opposition coming from Mr Ritchie. Mr Ritchie has an admirable concern for the safety of the workplace and his workers. He has what I take to be a genuine fear that despite the applicant's forklift driving experience, there is a real risk that if reinstated, the applicant may be involved in some other incident of a more serious nature than he has to date. It is apparent to me that Mr Ritchie has lost all confidence in the applicant as a reliable and trustworthy employee. I doubt this trust will ever be re-established. It might be said that the applicant in this regard is a victim of what I took to be on the part of Mr Ritchie a rather rigid and unbending personality. The fact remains, however, that I must look at the practicability and appropriateness of reinstatement. I am persuaded in the circumstances of this case that it would be inappropriate to order reinstatement. I am convinced that the applicant does have a carefree, if not irresponsible, attitude to matters that his employer regards as ones of substance. I cite by way of example the fact that the applicant was given a final written warning as a result of his breach of the respondent's no smoking policy, on 1 July 1996. It is likely that he failed to heed this warning. While the respondent claimed this was not one of the matters taken into account in terminating his employment, it is available to me on the question of the appropriateness of reinstatement. In the circumstances as outlined above, I decline to make an order for reinstatement. I think it is appropriate that the applicant be awarded compensation. I consider the applicant's loss is likely to exceed the statutory cap imposed by ss 170EE(3) of the Act, even after allowance is made for his earnings post‑termination to date and taking account of the four weeks' pay he received in lieu of notice. The applicant was earning about $800 gross per week at termination. I propose to award him the maximum permitted to me by the Act. ORDERS I order that: 1. The application be allowed. 2. The respondent pay to the applicant the sum of $20,800 within 14 days of this order. I certify that this and the preceding NINE (9) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 4 June 1997 Counsel for the Applicant: Ms Treston Solicitors for the Applicant: Quinlan Miller & Treston Appearing for the Respondent: Mr Hargrave Printing Industries Association of Australia Dates of hearing: 6, 7 & 8 May 1997 Date of judgment: 4 June 1997