Bornis v Australia Meat Holdings Pty Ltd [1998] IRCA 11

INDUSTRIAL RELATIONS COURT OF AUSTRALIA Industrial Law - termination of employment - misconduct - failing to follow reasonable instructions - valid reason - procedural fairness - whether prohibited termination for reasons including union membership or participation in union activities Workplace Relations Act 1996, s170DC, DE, DF, EA

Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 Selvachandran and Peteron Plastics Pty Ltd (1995) 62 IR 371 Cosco Holdings v Do and Others (1997) 150 ALR 127 Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 Johns v Gunns Ltd (1995) 258 at 267 Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439 JOHN BORNIS v AUSTRALIA MEAT HOLDINGS PTY LIMITED QI 1164 of 1996

RYAN JR

MELBOURNE

29 APRIL 1998

IN THE industrial relations

COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY QI-1164 of 1996

BETWEEN: JOHN BORNIS

Applicant

AND: AUSTRALIA MEAT HOLDINGS PTY LIMITED

Respondent

JUDicial registrar: RYAN

DATE OF ORDER: 29 APRIL 1998

WHERE MADE: MELBOURNE

ORDER: Having found that 1. the termination was for valid reason under s170DE(1) 2. the respondent complied with s170DC 3. the respondent did not terminate the applicant's employment for a prohibited reason under s170DF(1) the application is dismissed.

IN THE INDUSTRIAL RELATIONS

COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY QI-1164 of 1996

BETWEEN: JOHN BORNIS

Applicant

AND: AUSTRALIA MEAT HOLDINGS PTY LIMITED

Respondent

JUDICIAL REGISTRAR: RYAN

DATE: 29 APRIL 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT THE CLAIM The applicant seeks relief for what he alleges was the unlawful termination of his employment by the respondent. He had been employed by the respondent as a boner at the Townsville Meatworks from 1990 to 28 August 1996. RESPONSE The respondent as employer concedes that the applicant's employment was terminated at the initiative of the employer. Given that concession, and given the onus on the respondent to establish a valid reason for the termination, the Court followed the procedure recommended by Northrop J in Selvachandran and Peteron Plastics Pty Ltd (1995) 62 IR 371 and directed that the respondent call evidence first. This is a procedure often adopted by the Industrial Relations Court of Australia and would not normally warrant comment except that prior to and throughout the trial counsel for the respondent complained that the applicant and his legal advisers failed to honour an agreement to exchange witness statements. No pretrial order for discovery or for the exchange of witness statements was ever made but on the third day of the trial the Court did order that the applicant produce a statement of evidence as soon as practicable. Such statement was only prepared and provided to counsel for the respondent on 27 August at the commencement of the fourth day of the trial. The respondent denies any breach of any provision of the Workplace Relations Act 1996. The respondent asserts: · the applicant had a history of misconduct and failing to follow instructions · during July and August 1996 the applicant was involved in many incidences of misconduct including (a) swapping jobs with another employee without the permission of the supervisor and in circumstances where it was not safe to do so (b) swearing at supervisors (c) arguing with supervisors (d) arriving late for work after breaks (e) refusing to follow the lawful and reasonable instructions of supervisors (f) refusing to accept instruction in relation to the performance of his job · on 31 July 1996 the applicant was counselled by the Plant Manager (Mr Johnson) and then the General Manager, Abattoirs Industrial Relations and Personnel (Mr Hughes), and was warned that if he failed to obey lawful instructions his employment would be terminated · on 27 August 1996 the applicant threatened that he would not carry out instructions the following day. · on 28 August 1996 the applicant arrived late for work. · on 28 August 1996, after arriving late for work the applicant refused the lawful and reasonable instruction of his supervisor and walked off the job · the applicant caused other boners to walk off the job after him on 28 August 1996 · the applicant was given the opportunity to respond to allegations that he failed to follow instructions and had been warned about such behaviour in the past and was warned that his employment may be terminated · the applicant failed to give any or any reasonable explanation of why he had failed to follow instructions. THE REJOINDER In an Outline of Contentions dated 12 May 1997 and filed on the first day of the hearing on 14 May 1997 the applicant: · denied that he had "a history of misconduct and failing to follow instructions". · denied any swapping of jobs · indicated that he "now (ie. on 12 May 1997) has no recollection of having sworn at Les Alloway on 26 July 1996" · "acknowledged having had discussions on 25 July 1996 with Les Alloway in relation to the conduct of the chain on 24 July 1996" and describes "such discussions" as "necessary and part of the applicant's obligation as a union delegate" · "has now (ie. 12 May 1997) no recollection of having argued with David Print on 26 July 1996 about whether or not he was being allowed to go to the toilet" · "acknowledged having had discussions with Ken Johnson on 31 July 1996 in respect of alternative duties which Johnson purported to allocate to him" · conceded being late back from lunch on 26 July 1996 · denied being late to work on 28 August 1996 · denied refusing to follow the instructions of his supervisors · denied that on 27 August 1996 he threatened he would not do as instructed the following day · denied that he was late for work on 28 August 1996 · acknowledged that he "walked off the job" on 28 August 1996 but states that "it was part of a union organised walk off and was not initiated by him" · denied that he caused any other person to walk off the job on 28 August 1996 · denied that on 28 August 1996 he was given an opportunity to respond to the allegations that he had failed to follow instructions · asserted that his employment was terminated by Ken Johnson "prior to being given any opportunity to respond to the allegations in question" · asserted that Ken Johnson said words to the effect "I suppose I had better hear what you have to say though it won't make any difference to my decision" · asserted that he was denied natural justice insofar as he was not given an opportunity to address any allegations prior to the termination of the employment · claimed that the termination of his employment by the respondent was as a direct consequence of his role as an employee's representative and the conflict that arose from his handling of that position · asserted that the respondent terminated the employment because of the applicant's union membership THE TRIAL The respondent called nine witnesses. The applicant called eight witnesses. The respondent maintained that the employment of the applicant was terminated for a valid reason and relied on an Outline of Contentions filed on 8 May 1997, the evidence of the nine respondent witnesses and, to no small measure, on evidence given by the applicant's own witnesses. In a final written submission on 1 September 1997 counsel for the respondent attacked the applicant's credibility and inferred different and inconsistent instructions from the applicant to his counsel during the course of the trial. The applicant at trial and through a final written submission by counsel asserted that: · ultimately the employment was brought to an end by Mr Ken Johnson on behalf of the respondent · Johnson terminated the applicant's employment and recorded the reasons for termination · the reasons for termination recorded by Johnson were that the applicant had failed to comply with instructions given on 27 and 28 August and was late for work on 28 August and on 28 August failed to carry out a lawful instruction and walked off the job · the applicant was not given an instruction or direction on 27 August "to work on intercostals" on 28 August · the applicant did not fail to comply with a direction on the morning of 28 August "to go to intercostals" · the applicant proceeded on 28 August to the intercostals area · the applicant followed the lead of others and walked off the job on 28 August as part of and as a participant in an industrial dispute · the applicant did not lead the other workers in walking off the job and did not cause the other workers to walk off the job · the applicant did not fail to comply with a lawful direction but, if it were to be found that he did fail to comply with a lawful direction to work in the intercostals area on 28 August, and if it were to be found that his failure to comply with such a direction could constitute a valid reason for termination, nevertheless, there was no valid reason for termination because the respondent failed to comply with s170DC of the Workplace Relations Act and failed to give the applicant an opportunity to respond to any allegations made against him THE EVENTS BETWEEN 24 JULY AND 1 AUGUST 1996 The respondent's Outline of Contentions of 8 May was followed on 9 May with further particulars requested by the applicant. These particulars referred to certain events on 24, 25, 26 and 31 July 1996 and on 1 August 1996. Evidence called by both parties dealt in detail with these events. This evidence provides relevant background to the events 27 and 28 August 1996. Although it is the latter events which led to the termination of the applicant's employment, it is necessary to consider the evidence of the earlier events because the applicant relies on his version of these events as grounds for his assertions that the termination of his employment was unlawful. Furthermore, while the respondent relies primarily on the events of 27 and 28 August as constituting valid reasons for lawful termination, the evidence as to the events of late July and 1 August 1996 constitute, the respondent submits, evidence adverse to the applicant's credibility. The respondent also relies on the earlier events as evidence of the applicant's attitude and performance and as evidence of counselling, warnings and directions given to the applicant. The respondent submitted and called evidence to establish that in July and August 1996 the applicant swapped jobs without permission, swore at supervisors, argued with supervisors, arrived late for work and refused to accept or obey lawful and reasonable instructions. A CLAIM FOR ADDITIONAL PAYMENT David Print, foreman, gave evidence, supported by a diary note, that the applicant approached him on 24 July seeking additional payment for one or two minutes extra time on the grounds that Les Alloway, boning room supervisor, had started the (meat processing) chain early. The respondent submits that it was not a function or duty of the applicant to further pursue such an issue once the claim for payment had been brought to the attention of the foreman of the boning room. A dispute procedure (Exhibit R7) supports the position taken by the respondent. The respondent asserts that the applicant was overzealous in his complaint because Mr Alloway was involved and the applicant had been previously warned by Mr Johnson, manager of the Townsville Abattoirs, to keep away from Mr Alloway as they did not see "eye to eye". Evidence from Johnson, Alloway, Print and from Cyril Twist, Boning Room Supervisor, and from the applicant and some of his witnesses, confirmed that the relationship between Alloway and the applicant was difficult and uneasy and that Johnson had directed the applicant to keep away from Alloway. On Thursday 25 July 1996 the applicant renewed his claim for the alleged lost time on the chain and raised the claim with Print, Alloway and Foster. This is supported by a diary note made by Print. The applicant denied that he argued with Alloway over this matter on 25 July but the oral evidence of the three foremen and Print's diary note are to the contrary. The respondent submits that the applicant left his work station on 25 July to continue his pursuit of a claim that had already been made and which, in accordance with a settled procedure, was to be pursued without further representation from the applicant. The Court is satisfied from the weight of the evidence that the applicant did leave his work station on 25 July and it is not necessary to speculate whether he left to pursue the "early start" claim. The Court is also satisfied that on 24 and 25 July the applicant continued to pursue the "early start" claim. Likewise, the Court accepts the evidence of Twist, supported by a diary note, that about 1.10 pm on 25 July · the applicant pursued the claim again with Twist · Twist informed the applicant that Johnson had made a decision against any payment of the alleged early starting of the chain · the applicant threatened to withdraw his labour and the labour of all the union members · the applicant said to Twist "we will probably not start tomorrow" · Twist directed the applicant to follow dispute procedures while dialogue took place between management and the union There is supporting evidence from Foster, Alloway and Print. Finally, the Court notes and accepts the evidence and diary note of Print that later again in the afternoon of 25 July the applicant left his work station to go to the toilet. UNREST IN THE BONING ROOM 26 JULY Mr Print, by affidavit and in oral evidence supported by a diary note, deposed that the applicant again asked to go to the toilet on the morning of 26 July. His evidence was that he did not refuse the applicant permission to go to the toilet although the applicant accused him of that. Print's oral evidence was similar to paragraphs 10 to 13 of his affidavit which read as follows: "10. On 26 July 1996 Mr Bornis came to me and asked to go to the toilet. I said that his work mates would have to cut him out as we didn't have any spare boners. 11. Mr Bornis said that we were refusing to let him go. I said that was not the case, but that we wouldn't drop the team. 12. Mr Bornis said that a man being refused to go to the toilet would look good in court. 13. When Mr Bornis returned from the toilet, as he was walking past Mr Alloway he said to Mr Alloway to "go and get fucked". Attached and marked "C" is a copy of my diary note of 26 July 1996." The applicant's evidence in respect of this incident was unimpressive and evasive and, where his evidence conflicts with the evidence of Print and Alloway, the evidence of the respondent's two witnesses is preferred. Firstly, the applicant did not deny arguing with Print on 26 July. His statement of evidence, submitted on the fourth day of the trial, is silent and the Outline of Contentions of Fact and Law filed on 12 May 1997 state that "he now has no recollection of arguing with David Print on 26 July 1996 about whether or not he was being allowed to go to the toilet". Secondly, the Contentions also include the following statement "the applicant has now no recollection of having sworn at Les Alloway on 26 July 1996". Thirdly, in cross-examination the applicant seemed to indicate that he may have sworn at Alloway and then he claims to be confused. The Court pointed out to the applicant that there did not seem to be anything "confusing" about a direct allegation that he told Alloway "to go and get fucked". The applicant then denied that he swore at Alloway. The respondent's witnesses deposed to continued unrest on the boning room floor throughout the morning of 26 July and that four union delegates (Horwood, Murphy, Sherrington and the applicant) were involved. The four delegates were late back from lunch on 26 July and were told to go to Johnson's office. Johnson spoke to them about the unrest in the boning room in the morning and about being back late from lunch. The applicant's personnel file contains the following note made by Johnson on 26 July "brought to office re general disobedience in boning room. Also warned not to be late back from lunch or late or off chain without permission of supervisor". This is a record of a warning to the applicant in the presence of three other union representatives. DISPUTE OVER ALTERNATIVE DUTIES 31 JULY As a result of the incidents on 26 July the applicant was moved to the intercostals area where he worked until 30 July when he cut his finger. On 31 July at 7.28 am the applicant reported to a personnel officer, Mr Greg Inch, for the allocation of alternative duties because of his injury. Inch gave evidence that he told the applicant to report to Mr Gary Mitchell for the allocation of alternative duties and that the applicant said "I hope he doesn't harass me". Inch considered this an unusual and curious statement and recorded it in a diary note. At 7.40 am the applicant reported to Mitchell. Mitchell was an impressive witness. His evidence confirmed a diary note which he made on 31 July and which reads as follows: "0740 - John Bornis reported to me and I instructed him to clean the locker section floor of the male locker room. He refused and said 'I'm employed as a boner and I'm going to see the union president'. I reported this incident to the plant manager." The applicant denied that Mitchell gave him the instruction to clean up the locker room. He claimed that he first heard of the allegation that he had been given and refused an instruction to undertake cleaning duties after a telephone conversation with Hughes. This denial has to be considered in the context of the evidence of Inch and the cross-examination of Inch by counsel for the applicant. Inch stated that at 7.50 am the applicant informed him, for a second time, that he would not pick up papers and said, in effect, that he "was a boner not a garbo" and that he "may go home". In his Outline of Contentions the applicant had denied that he ever told Inch that he would not do alternative duties. In cross-examination of Inch the following exchange appears at T151: Counsel: The only argument you are going to have with Mr Bornis is - I have to put to you - that he says that he did not say on the day that he may go home. Inch: He did say that. When the applicant came to give evidence he denied every aspect of the Inch version of events except that he conceded that he told Inch that he "may as well go home". The position taken by the applicant in his evidence is inconsistent with the proposition put on his own behalf in cross-examination of Inch and is also inconsistent with his own Outline of Contentions. On 31 July Johnson recorded the following note in the applicant's personnel file: "Bornis refused to do work as instructed (e.g. to pick up papers from floor of locker room while on A.D. cut finger). Brought to office. Reinstructed to work as instructed. Phone consultation with John Hughes* re obedience to lawful instructions and change of attitude needed."