industrial relations court of AUSTRALIA TERMINATION OF EMPLOYMENT - alleged unlawful termination of employment - SUMMARY DISMISSAL - VALID REASON - valid reason for termination of employment established by employer - CONDUCT AND PERFORMANCE - OPPORTUNITY TO RESPOND - No opportunity given to respond to allegation of failure to obey lawful direction or to make representations about future conduct - REINSTATEMENT –a principal remedy reinstatement – applicant unable to work with a number of supervisors – radio control operators expressed reservations about working with him – applicant still bears sense of injustice which will make reinstatement impracticable---impractical to reinstate the applicant DAMAGES –COMPENSATION –damages assessed taking into account unlawful termination– ALLEGED DRUG USE at use of cable television service Workplace Relations Act (Cth) 1996 (formerly known as Industrial Relations Act 1988) ss 170DB, 170 DE(1), 170DF(1), 170DC, Schedule 11 Evidence Act (Cth) 1995 s 38(1) (a), s 38(1)(b) s 128(6) Occupational Health & Safety Act 1983 (NSW) ss.15, 19 McLean v Tedman & Anor (1984) 56 ALR 359 at 364 Garside v Hazelton (1997) (McIlwaine JR, unreported decision number 119/97)(1997) (McIlwaine JR, unreported decision number 119/97) McGeehan v Hazelton Air Services Pty Ltd (1997) (McIlwaine JR, unreported decision number 118/97) Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371 Raymond Drury v BHP Refractories Pty Ltd (unreported IRCA decision number 276/95 dated 16 June) Johns v Gunns (1995) 60 IR 258 Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 Perrin v Des Taylor Pty Ltd (1994) 58 IR 254 at 256-7 Liddell v Lembke t/a Cheryls Unisex Salon (1994) 56 IR 447 Nicholson v Heaven & Earth Galleries Pty Ltd (1994) 1 IRCR 199 Sophie Caroline Lethern v Beresfield Pty Limited t/a Titan Ford Brookvale (1995) (McIlwaine JR, unreported decision number 542/95) Burazin v The Blacktown City Guardian Pty Ltd (unreported IRCA full court decision, decision number 606/96, dated 13 December 1996) Qantas Airways Limited v Christie (1988) HCA 18. 19 March 1988 madison V optus pTY ltd ni 1170/96 MCILWAINE JR SYDNEY 16 October 1998 IN THE industrial relations COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 1170 of 1998 BETWEEN: MARTIN MADISON Applicant AND: OPTUS ADMINISTRATION PTY LTD Respondent JUDGE(S): MCILWAINE JR DATE OF ORDER: 16 OCTOBER 1998 WHERE MADE: SYDNEY THE COURT DECLARES THAT: 1. The Respondent has contravened Section 170 DC of the Act. 2. The Respondent has contravened section 170 DF(1) of the Act on the grounds of the Applicant filing a complaint against his employer involving alleged violation of laws. 3. In all the circumstances of the case it is impractical to reinstate the Applicant in any position with the Respondent. 4. It is appropriate to award compensation to the Applicant in the sum of fourteen thousand eight hundred and eighty one dollars ($14,881). THE COURT ORDERS: 5. The Respondent pay to the Applicant within twenty-one days the amount of fourteen thousand eight hundred and eighty-one dollars ($14,881). 6. Any sum paid within twenty one days to the Australian Taxation Office, which the Respondent is obliged to pay on behalf of the Applicant or which can lawfully be made on his account, in respect of the sums ordered in paragraph 5 shall be pro tanto satisfaction of the obligations of the Respondent under Order 5. 7. The District Registrar is authorised to have engrossed my written Reasons for Decision and upon completion is directed to publish them and deliver them to the parties by ordinary post. IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 1170 of 1998 BETWEEN: MARTIN MADISON Applicant AND: OPTUS ADMINISTRATION PTY LTD Respondent JUDGE(S): MCILWAINE JR DATE: 16 OCTOBER 1998 PLACE: SYDNEY REASONS FOR JUDGMENT APPLICATION This is an application by Martin Madison claiming unlawful termination of his employment under Division 3 Part VIA of the Industrial Relations Act 1988 (Cth), ("the Act"), now known as the Workplace Relations Act 1996 (Cth), against his former employer, Optus Adminstration Pty Limited (hereinafter referred to as "Optus"). The applicant was 25 years of age, at the time of his dismissal and in his claim records the work performed for his employer as "customer service technician". The applicant started work with the respondent on 26 June 1995 and the last day he worked was 10 January 1996. He received a written notice of termination on 12 January 1996 as follows: "11 January 1996 ref:mmterm.fw Martin Madison 7/14 Pennant Way CASTLE HILL NSW 2154 Dear Martin Following our discussions of 10 January 1996, I confirm that your employment with Optus Administration Pty Ltd has been terminated, effective from today, and you will receive one month's pay in lieu of notice as well as any your statutory entitlements. The main reason for the termination, as discussed, is your failure to obey lawful directions. Yours sincerely OPTUS ADMINISTRATION PTY LTD Fiona Wardlaw Human Resources Manager, NSW" The remedy sought by the applicant in his application is reinstatement and compensation. The application was signed by the Assistant Secretary of his then Union on his behalf on 23 January 1996 and was received by the Australian Industrial Commission on 24 January 1996. Commissioner Oldmeadow of the Australian Industrial Relations Commission issued a Certificate dated 12 February 1996 in Sydney in the following terms: "In accordance with subsection 170ED(1) of the Industrial Relations Act 1988, the Commission hereby certifies: (i) that it has been unable to settle this matter by conciliation, within a reasonable period; and (ii) that the parties in this matter, having been invited to elect to have the matter dealt with by consent arbitration, have not so elected." There was no objection to the certificate made by either party. In addition, no issue was raised during the hearing as to the timing of the lodgment of the application. I therefore find the matter is properly before the Court. By letter dated 19 February 1996 the Communications Electrical & Plumbing Union notified the Registry of the Court that it was no longer representing Mr Madison. BACKGROUND Optus is a major media communications and entertainment company operating in New South Wales and elsewhere in Australia. The job of the applicant was to install the cable television supplied by the respondent and its associated companies, test the installation and to assist the customer where possible with their new service. It is not in dispute that the applicant commenced his duties on 26 June 1995 and was terminated from his employment at the initiative of his employer on 10 January 1996. The applicant, during the performance of his duties, had two separate and distinct lines of supervision. Workforce Management (WFM) described as a nerve centre of the operation, allocated work to the technicians by a job allocation system recorded on Work Order forms and through the radio and other communications system. Secondly, he had a line supervisor or Team Leader who provided "on the job" supervision and would be available to attend on site if required. Supervision of the applicant frequently overlapped, probably due to the poor rostering system. INTERLOCUTORY ISSUES This matter was originally listed as a one day matter to commence on 3 May 1996. The Registry of the Court received a faxed document dated 2 May 1996. "I Martin Madison hereby gives notice that court file no. NI 96/1170 Madison v Optus Administration is to be withdrawn, Notice of Termination Yours Truly Martin Madison." On 3 May 1996, Mr Madison, with his mother accompanying him, appeared before the Court and asked to withdraw the letter and proceed with his application. At the commencement of the hearing Counsel for the respondent, Mr Dixon, suggested that the hearing might take three days. The hearing proceeded by Mr Madison giving his evidence in response to general questions from the Court. It was made clear to Counsel for the respondent that he may, at any time, interrupt the process and raise an objection. At the conclusion of the first day of hearing the mother of the applicant, who had been allowed to assist him at the bar table, sought time for him to obtain legal advice. The applicant also disclosed that he wished to rely on evidence from current employees of Optus &, although he wished to withhold their identity as they were concerned about giving evidence against their employer, he named employees including Elias Mohammed, Phil Hodge, Peter Nicholl, Tony Russo and Mark Willoughby. At a telephone directions hearing on 21 May 1996, Mr Madison appeared unrepresented in Court along with Mr Dixon, Counsel for the Respondent, who was then based in Western Australia. The applicant confirmed that he would remain unrepresented in future hearings. On 3 June 1996 the District Registrar conducted a hearing at which the applicant indicated his difficulties serving subpoenas on the Workcover Organisation because of the costs which that organisation was seeking. At a directions hearing on Tuesday 11 June 1996 there was no appearance by the applicant. On 13 June 1996 the applicant was late as a result of his car being stolen. As a result of these difficulties every effort was made to ensure that Mr Madison did not become confused about what he was being told to do in preparation for the continued hearing. On one occasion, a morning Directions hearing was adjourned to allow the applicant to inspect documents at the office of the Solicitor for the respondent and to report on his progress to the Court at the end of the day. It is not necessary to review each of the occasions except to say that the applicant often, if he did not agree with a particular direction, would not complete it without again raising it with the court. It can be readily seen how a supervisor in an on the job situation would become frustrated and annoyed with such a refusal in the workplace. The applicant was unable to distinguish between what should be accepted and what should be contested. Moreover, the applicant was unable to properly cross-examine witnesses properly and the presentation of his case suffered accordingly. EVIDENCE OF THE APPLICANT Martin Anthony Madison is an Australian citizen who is married, although separated, with one child who was born in February 1996. He attended school at Parramatta except for one year, which was spent at a nearby high school when it was suggested that a transfer to another school might improve his health, as he suffered from asthma. The applicant left school in Year 11 at the age of 17. He commenced employment with K-Mart in Merrylands in the auto department where he remained for approximately a year and a half. He applied for and was accepted for a traineeship with Telecom Australia. At Telecom he was a customer service technician involved in the insulation team which covered fitouts of multi-storey buildings, including commercial and domestic residencies. He also installed the commander telephone systems as well as adjusting and moving around PABX extensions. Also, he had some experience with computer cabling as a result of office fitouts he had worked on in the city. For example at a Macquarie Street building in Parramatta he was required to do labouring work which involved crawling through ceilings under floors dropping lines into cavities and knocking out fire retardant material in order to upgrade a cable. He worked for Telecom for four and a half years. In May 1993 he accepted a redundancy from Telecom along with other technicians and was paid out all his superannuation and leave. At 23 years of age he used his redundancy money to cease living at home. Thereafter he worked casually in numerous jobs, including one for an air conditioning company and another at the Regent Hotel in Sydney. During some of those periods he received unemployment or Social Security benefits. For a time the applicant worked as a courier driver using a V8 Panel Van for the purpose. The applicant with a touch of humour suggested that although he did not make much money his manager was impressed with his speedy deliveries. He helped his father who had his own business removing and installing televisions, videos and washing machines. During this time, the applicant undertook a course on nutrition in order to deal with his asthma and for general health reasons. The applicant answered an advertisement placed by Optus for customer service technicians and attended at North Sydney where Ms Jennifer Morley and Ms Kim Doust interviewed him.Optus first employed the applicant on 26 June 1995 as a Technician in Training. In this position he was taught the new systems being developed by Optus. Since his termination from Optus on 10 January 1996, he had no other employment. At the time of hearing he was on Social Security Benefit of $318 dollars per fortnight and a family allowance which was paid to his wife. The applicant completed a six to eight week training course with Optus at premises in Seven Hills. In the course he was taught how to install and service Pay TV equipment. This course covered both theory and practical instructions and he was successful in passing the examinations. The applicant said that part of the training involved him and his fellow team members attending meetings at which members of the group voiced their concerns and opinions about safety matters. The applicant maintained that when it came to safety issues he was very forthright. The applicant was quite proud that he was asked to do the first installation for Optus together with a colleague, Warren Cox. The purpose of the installation was at once to assess their business readiness, assess the average time taken and what sort of complications could be involved. Further, it was intended to obtain customer feedback so that the company would have some foundation to work on so far as future installations were concerned. Initially there was a difference between the estimations of time taken to do an installation for a cable TV on the basis that the applicant said that his suggestion was 1-5 hours and the company was between one and two hours. The initial allegation made by the applicant was that on or about the 14August 1995 he became aware that people were talking about him. In particular, he suggested his then supervisor Mr Joe Sierra was making fun of him. Mr Sierra was the applicant's team leader from 28August 1995 to 28September 1995. Although the applicant says that he did not think much of Mr Sierra he did on occasion use him as a person to ask advice and acted as a Liaison Officer to speak between management and himself. The applicant gave evidence about a difficulty he had with one particular installation because the technician who was to assist him to do the job was interfering with his planning of the work with the customer and he asked for him to be removed from the site. However instead of him being removed the applicant was asked to do another job and that person remained there. The applicant also gave evidence that he was having difficulty contacting people through his radio when he tried to call workforce management. He gave another instance as when he was on the premises of another customer installing "RF" Converters and when he returned to his van he found there was a message on his screen saying he was to contact the base. When he contacted the base "Joe" asked him why he had not answered the radio. Shortly after that incident the applicant noticed that another team leader, Mr Warren Leadbetter, started to call him on the two way radio requesting advice as to where he was and what he was doing. The applicant was concerned by this development and discussed it with his own team leader who he told him he knew nothing about the enquires being made by Mr Leadbetter. He recited another incident: "And then what happened I was in the depot one day and I was photocopying some documents and I heard someone in the background call out "Hey you come over here" and I turned around to have a look to see if it was me that he was addressing and as there was no name requested. I looked at the person and there was nothing else said and I continued on with what I was doing. Approximately 10 minutes later the person personally came to me and said "I called you over here Martin before didn't you hear me" and I said, "Look in the manner in which he was doing it was hey you come over here" and when I did turn around he was patting his leg as well so I--- He was doing what?---Patting his leg as well. Patting?---Like that. What like a ---?---Like calling a dog over that is the way I. And who was this person?---Warren Leadbetter was his name. Yes?---And I naturally didn't respond to that and as I said I was not aware that he was formally addressing me until he came the second time." During the course of making this statement there was a patting noise which occurred as a result of the applicant patting or hitting his hand on the side of his leg. He continued with his evidence to the effect that he then had a verbal clash with Mr Leadbetter about Mid September 1995: "Yes I was walking out through the roller doors and I had spoken to some other people from another group and I would also like to show something as to what happened. I had the work keys it has got a ring part like this through it and I had it through my fingers. The witness is holding up a bunch of keys on one of those what are they called things that you latch onto your belt? - A latch device or something like that I don't know what they actually call them. Yes go on? - So I had the ring part through my finger as you would wear a ring and that it how I proceeded to carry them like so. I walked from the warehouse to my vehicle after talking to some other work colleagues and someone grabbed my arm from behind and ripped the keys out of my hands and I turned around to see who it was and what the hell was going on and noticed that it was Warren and his words were after that event was a swear word, do I say it or do I spell it or? You tell me exactly what happened? - Okay he said, "You're fucking out of here" gesturing with his finger pointing up in the air while he was walking away quite rapidly. I had not been approached by him about anything to do with this matter or that led up to it beforehand." The applicant said that he followed Mr Leadbetter to confront him and ask for his keys back, Mr Leadbetter refused to give the keys back and Mr Madison admitted saying to him: "If you ever touch me like that again, I will flatten you." Mr Madison followed him to the van where he says he had personal items, which he wanted to protect. After being confronted by Mr Leadbetter and refused access to his van the applicant admitted saying: "Let's go behind the shed and discuss this further." He recalled Mr Leadbetter saying words to the effect of: "You Telecom blokes are all the same." As the atmosphere was one of increasing hostility the applicant decided to retreat and said he walked around and walked back to his vehicle. He then decided to walk towards the management area and as he was walking he heard Mr Leadbetter call out: "Here's your stuff." While waiting to see Ms Morley in the office Mr Leadbetter returned his things and dumped them on the floor with the bag spilling open. The applicant says that he pointed out that he had some fragile things in the bag. After the incident with Mr Leadbetter his finger became red and tender. He then went to see Ms Jennifer Morley but was kept waiting for three hours finally leaving at 6.00 pm. The next day he reported to Mr Sierra and asked for his jobs to be reallocated so he could again attempt to see Ms Morley. Later that day it was agreed that he and Ms Morley would meet again and document his complaint. During this meeting he said he would not continue working with this man. Ms Morley promised to report back to him within 24 hours. When they met on 21September 1995 he was offered an opportunity of having a witness present. His father came as a witness as well as Mr Phil Hodge. After it had been determined that his father could stay at the meeting, although he was not a member of the company the applicant was handed a letter that had as its subject heading: "Performance Issues - First Written Warning - Memorandum to Martin Madison from Jenny Morley," dated 21 September 1995 (See Exhibit 1). Although the applicant was expecting a response to his report of an assault by a supervisor there was only a minor reference in the letter: "The incident that occurred on 18 September 1995 between yourself and Warren Leadbetter should clearly not have happened and all parties involved will be severely disciplined". What arose out of the complaint was a reference to a series of performance related issues which had no immediate connection with the assault. The source seeming to be his Team Leader, Mr Sierra and less formal warnings about his lateness. The applicant suggested that he had explained that the late arrivals had occurred over a six-week period and they had been discussed with him by both supervisor and manager. He believed this would have been the end of the matter unless there was a continued practice of it. He was then allowed to leave the room so he could have a discussion with his two witnesses. He was asked to sign a document, but after signing it the applicant decided that he did not wish to endorse it and wrote "voided" over it. Even though both men were warned about their conduct it became obvious that afterwards the applicant carried with him a severe sense of injustice at what had happened and the apparent light treatment afforded to Mr. Leadbetter. The next major incident in so far as the deterioration of the relationship between the applicant and his employer occurred on 22 November 1995 when at about 9.45a.m on that day he telephoned Workcover New South Wales. During the trial there was some discussion as to whether the documents received from the Workcover organisation were to be allowed into evidence. The report was clearly relevant. The basis of allowing the report into evidence was that the respondent would be allowed to call or to lead evidence as to what was told to the Workcover organisation and how Workcover responded. The effect of the documents produced by Workcover was to record a complaint filed by the applicant on 22 November 1995 about the instructions he had to continue with a job which he felt was unsafe because of a number of factors including wet weather. The report showed that there was some criticism of the company by the Workcover inspectors, however they determined not to take any further action. On 29 November 1995 the applicant was issued with a second written warning which was followed by a third written warning on 13 December 1995. The third written warning related to an incident when the applicant avoided being accompanied to see the company medical officer. The final straw in the unhappy saga occurred on 4 January 1996 when the applicant did not arrive at an installation until 4.30 pm and the customer cancelled the order. Thereafter he was on sick leave or not rostered for duty until 10 January 1996. On his return he was suspended from duty until 2.00pm when a meeting was held which resulted in his termination. I am satisfied that the applicant had at least three factors which affected his performance during this period. His health was not good as a result of his asthma and stress in the workplace. This was compounded by his matrimonial difficulties. More importantly he needs a single line of communication which should be constantly reinforced. He is not able to sort and assess alternative courses of action. He was offered counselling by the respondent but this offer came too late to be of much assistance. A better result would have been achieved if the respondent had followed up the approach and been more persistent in having him accept and participate in the counselling program EVIDENCE OF FORMER EMPLOYEE OF RESPONDENT The applicant was supported in his evidence on safety issues by Mr David Mark Jenkins a former employee of the respondent. Mr Jenkins was with Optus for a period of six months. He testified that he was concerned by some safety issues such as whether the ladders were safe to be operated by one man and the short cuts taken to complete road crossings. He confirmed that the radios did not work in some areas and suggested there was difficulty with the radio operation generally. He reinforced the concern about working on a one man out basis. He suggested that there had been an increase in accidents involving ladders. EVIDENCE OF EMPLOYEE OF RESPONDENT Mr Russo gave evidence in support of the applicant. He had moved into the office at Lane Cove and was no longer working on the installations. He confirmed that the applicant often raised safety matters and supported the applicant's evidence about the radio difficulties. His evidence about the assault by Mr Leadbetter confirms that he was the aggressor or instigator of the incident. The applicant simply responded to the unjustified physical attack on him. He testified as to the "good samaritan " nature of the applicant when he insisted on taking him to a doctor over a rash on his body. Such actions together with his visits to the veterinary surgeons with animals injured in the course of the operations of the respondent would not and did not impress his supervisors no matter how justified they were from a humane point of view. EVIDENCE OF EMPLOYEE OF RESPONDENT Mr Daniel Brugman gave evidence in support of the applicant. Mr Brugman explained that he had been given written warnings, which he felt were unjustified. He also said he had been told by Mr Sierra in the early days that there was not a lot to do and they should "just make yourself as useful as possible." Mr Brugman introduced the allegation that Mr Sierra had given marijuana to Mr Fullarton at the party to celebrate to launch of the Optus service saying: "What had occurred was Jeff Fullerton had had a few drinks and Joe Sierra gave him some marijuana and he became violently ill, and Phil Hodge and I had to take him home in the bus and we had to take care of him." Mr Sierra subsequently denied this allegation. It is not necessary for me to make any finding on this issue except to say that Mr Fullarton was very unwell after the party. I accept the description given by Mr Hodge of his appearance. Mr Fullarton himself was an unreliable witness on this issue. It is sufficient to suggest to the respondent that from an occupational health and safety view it needs to do more to define and warn all its employees about the abuse of alcohol or use of drugs in the workplace. (See McLean v Tedman & Anor. (1984) 56 ALR 359 at 364). The abuse of alcohol and recommendations for dealing with the problem in the workplace or related social events is discussed in Garside v Hazelton Air Services Pty Ltd (1997 McIlwaine JR, unreported decision number 119/97) & McGeehan v Hazelton Air Services Pty Ltd (1997) (McIlwaine JR, unreported decision number 118/97). Finally Mr Brugman gave evidence that on at least two decisions he had been sent to check on the applicant and found him working. REQUEST FOR MEDIATION The court had been adjourned to commence on Tuesday 28 January 1997 being the day following the long weekend. When the court resumed Mr Madison had one witness left to call, Mr Hodge. However Mr Madison had taken no action to have Mr Hodge present at the court. His explanation was that he presumed that the court would arrange or order Mr Hodge to be there. At that stage the respondent suggested that they had made attempts to convey an offer to Mr Madison but was not sure that it had been successfully conveyed and asked for the assistance of a Registrar to act as a mediator. As Mr Madison was not represented this proposal was agreed and the matter was referred to a mediator. Mediation was not successful and the case resumed at 2 pm in the afternoon with Mr Hodge being then available as a result of the cooperation of his employer. EVIDENCE OF EMPLOYEE OF RESPONDENT Mr Phillip Hodge of Terrigal, Maintenance Technician with the respondent, gave impressive evidence in support of the applicant and of training with him at Optus Vision. He testified the applicant was pleasant to work with and regarded him as a very professional employee who at the same time often raised safety issues. Some of the issues raised by him including: "Working in pairs". His observations of his work habit were that he was "over friendly". There were a lot of people within the organisation who didn't like him or his attitude. He confirmed the evidence of the applicant that the radios were not working properly. EVIDENCE OF FINAL SUPERVISOR OF APPLICANT Mr Brian Collins was the final supervisor of the applicant. He gave an extensive list of experience as a supervisor and given time and direct communication between the two of them there may have been some hope that he would have been able to overcome the problem. However, his appointment occurred too late in the day when there were too many issues surrounding the applicant to enable him to be treated fairly. On the question of radio communication, Mr Collins was inclined to exaggerate the position in relation to the number of times that the radio had actually been checked. By this stage the applicant had gained a reputation for being a persistent stirrer. Mr Collins maintained in his evidence that, although questions of safety were important, if management decided that the issue had dealt, and even if it meant that no action was to be taken, then so far as the applicant was concerned, he should accept that position. The applicant, of course, is not the type of person so to do. If he thinks he's right he would continue to persist with this issue. Unfortunately his persistence instead of being placed in writing, for example, which would have made life more difficult for his managers, had lead him to constantly refer to the issues in his daily activities. These safety issues were also raised by interjecting at meetings, which was also not well received. The company in this case was able to produce enormous amounts of written records as to conversations or difficulties it's managers and supervisors had with the applicant. However, not one piece of paper was able to be produced in which it referred to the applicant's complaints about safety issues and the way in which they had been addressed or considered by senior management. I am satisfied that many of the issues he was raising were both important and justified. OTHER EMPLOYEES OF OPTUS Mr Collins was supported by the testimony of other Team Leaders - Mr Edmund Le Pre, Mr Hendrik Jan Ruysch, Mr Warren Leadbetter, and Mr King, the Field Service Manager. Mr Sierra in his evidence was more supportive of the abilities of the applicant than might be expected. Mr Williams and Mr Clark, relatively new employees, gave evidence about issues of safety which had been raised with them by Mr Madison. They had reported their concerns to management. Mr Fullarton denied that he was given marijuana by anyone. However, irrespective of the cause, he was "violently ill" on the night of the Optus Launch party. Mr Fullarton was not frank with the Court. Ms Christine Anne Mortlock, a Team Leader, from the Workforce Management gave evidence explaining the operation of that section and the difficulties she encountered with the applicant. In this evidence she was supported by Mr Bryan. Mr Moffat of King Communications gave evidence as to the way in which the radio in the van used by the applicant was fixed. His evidence was inconclusive on this issue when compared to the many examples given by other employees on the job. He was not able to conclusively say the radio was fixed as alleged by the Team Leaders. Ms Rundle, Ms Doust & Ms Wardlaw gave evidence from the Human Resources point of view. ORAL SUBMISSIONS Mr Madison and Mr Dixon made oral submissions to the Court on 10 February 1997. The submission by Mr Madison contained a glimmer of hope that he had learnt from his experience. CREDIT OF MAIN WITNESSES By his conduct, Mr Madison has a capacity to infuriate people not least of all the court. Mr Madison was often late for Court and sometimes appeared to be either distracted or have a relaxed attitude towards his compliance with directions. He impressed as a pleasant young man with a large amount of naivety. I did not find him to be an untruthful witness. WAS THERE A VALID REASON FOR TERMINATION It was clear the respondent had terminated the employment of the applicant on its initiative. Under the provisions of the Act, the respondent carries the burden of showing that at termination it had a valid reason or reasons for bringing the employment to an end summarily. In his decision in Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371, Northrop J describes the meaning of this phrase in the following way: "Section 170DE(1) refers to "a valid reason, or valid reasons", but the Act does not give a meaning to those phrases or the adjective "valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: "2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason." In its context in s170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bostik Pty Ltd (1995) 60 IR 1, when considering the construction and application of s170DC." In considering whether there was a valid reason for termination connected with the employee's capacity or conduct of the applicant I have taken into account the fact that the applicant often made the wrong choice in trying to appease his many supervisors. In these actions he was not wilful and he did not intend to disobey a legitimate order. It should not be forgotten that the applicant was told by Miss Morley that he was to have a fresh start. In effect this did not happen. In considering the question I have had regard to the observations of Wilcox CJ in Raymond Drury v BHP Refractories Pty Ltd (unreported IRCA decision number 276/95, dated 16 June 1995): "Having said all this, the fact remains that Mr Drury's behaviour was unacceptable. I agree with Mr Raymond that it did not constitute "serious misconduct", warranting instant dismissal. But it was behaviour that went beyond even the "give and take" atmosphere of a modern Australian workplace. It was disruptive behaviour that called into question the authority of the person who was in charge of the project. If continued after a clear warning, it was conduct that constituted a valid reason, connected with the operational requirements of the project, for Mr Drury's termination: see s 170DE(1) of the Act." In this matter, the applicant was persistent in his complaints and in his failure to understand that until he redeemed himself in the eyes of management he would be "over" supervised when compared to other technicians. Although his behaviour was not intended to be disruptive it had a similar effect to that of Mr Drury, except without the same amount of aggression. Although the issue is not free from doubt, and leaving aside the impact of his complaint to Workcover, I am satisfied that Optus has on the balance of probabilities established that it had a valid reason for terminating the applicant connected with the operational requirements of the position. In coming to this decision I have particularly taken into account the evidence of Ms Mortlock from Workforce management as to the difficulties that centre was encountering as a result of some of the actions of the applicant. Moreover, her evidence was of crucial assistance in determining that it is impractical to reinstate the applicant. WAS THERE AN UNLAWFUL TERMINATION OF EMPLOYMENT It is clear that on 22 November 1995 the applicant had effectively filed a complaint about safety issues with Workcover NSW. I accept that this was a genuine cry for help by the applicant and not by way of a vexatious or unreasonable complaint. The respondent, through its Team Leaders and Field Service Manager, was extremely concerned by this development. Particularly given new recruits, motivated by their discussions with the applicant, were also raising views about safety issues. These people thought of themselves as pioneers in the field and did not need to be singled out for special attention while they were challenging long accepted and possibly outdated, safety practices in the industry. It follows from this that the prohibition contained in s170DF (1) (e) was contravened by the respondent, there being a causal nexus between the termination of the applicant's employment and his filing of a complaint. I am satisfied that the leadership team improperly took into account difficulties which would be faced if the applicant filed further complaints should there be other clashes between the applicant and his supervisors in the field over safety issues. There was a simple solution to the problem: an arrangement enabling the applicant to communicate with the Workplace Health and Safety Officer on the understanding that any complaint raised would be dealt with by the Workplace Health and Safety committee (which the respondent was required to establish under New South Wales law). Here, representatives of his peers would review safety issues and be able to give him some reassurance (See s 15, 19 of the Occupational Health and Safety Act 1983 (NSW)). In Johns v Gunns Ltd, (1995) 60 IR 258, Northrop J examined the scope of the operation of section 170DF(1)(f) and concluded: "The respondent has to establish a negative, namely that the reasons for dismissal did not include the reason that Mr Johns was temporarily absent from work because of injury. A mere denial may not be sufficient. All the facts and circumstances of the case have to be considered." On this issue Northrop J also cites with approval a passage appearing at page 268 in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, which he observes, has equal application where s170DF (1)(a) of the Act applies: "The provisions of s.5 (4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge." For similar reasons, I do not accept the denials of the representatives of the respondent that his complaint to Workcover was not a factor in the decision which was taken to terminate his employment. The respondent has failed to put in place methods, which would ensure that his complaint was not used against him. Accordingly, this decision contravened s170DF (1)(e) of the Act on the ground of his filing a complaint with Workcover NSW SECTION 170DC: EMPLOYEE OPPORTUNITY TO RESPOND Procedurally there were opportunities given to the applicant to be assisted by another person when defending himself. (See Schedule 11 of the Act – Paragraph 9 of Recommendation No. 166) It appears to me that the procedural aspects of the various interviews conducted by the respondent were satisfactory. Given the history, it would have been more prudent to insist on him having a person present to assist him. I am satisfied that Ms Wardlaw made no effort to confirm whether his radio was working properly. This is a key deficit in allowing the applicant the opportunity of defending himself. In Perrin v Des Taylor Pty Limited (1994) 58 IR 254 at 256-7, Moore J said the following about the purpose of section 170DC: "Its purpose is at least twofold. It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee's capacity. In the present case, the applicant may have been able to show that the complaints about slow delivery parts had no factual foundation or that there was an explanation for their slow delivery that did not relate to any want of effort on his behalf. A second purpose of s170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. They may be extenuating personal circumstances or they may involve undertakings about future conduct." There is no evidence that there was an opportunity given to the Applicant to respond in line with the second purpose of the legislation as outlined by Moore J. I am satisfied that there is a contravention of section 170DC. Despite the fact that there was an interview between the applicant, Ms Wardlaw and others the evidence is clear that the applicant was in effect told that he was to be terminated. The company has breached section 170DC of the Act, in that it should have given the applicant the opportunity of making representations based on a number of factors including those which I have set out earlier in these reasons. In addition he may have wished to give "undertakings about future conduct" to "Optus". After considering the report of Ms Wardlaw and any representations the applicant wished to make, the company would then have been in a position to dismiss him without contravening the section. In those circumstances I propose to make a finding against the respondent that there was a contravention of Section 170DC. REINSTATEMENT IMPRACTICABLE I am satisfied that I have only a limited discretion not to reinstate the applicant where it has been found that there is a contravention of the act and the applicant is entitled to a remedy. (See decision of Liddell v Lemke t/a Cheryls Unisex Salon (Full Court decision by Wilcox CJ, Keely & Gray JJ dated 15 December 1994, IR 56 page 447). The termination of employment occurred on 10 January 1996 and the application was received by the Australian Industrial Relations Commission on 24 January 1996 which is after the date of commencement of Schedule 2 (9) of the Industrial Relations and Other Legislation Amendment Act 1995 (Cth) No. 168 of 1995. I am obliged by Section 170EE (1) of the act to take into account all the circumstances of the case. In view of the findings, which I have made earlier in these reasons, reinstatement would normally be required. I have taken into account the evidence on behalf of the respondent about their attempts to discipline the applicant. It has to be acknowledged that attempts, although not always genuine, have been made to give a fresh start under the supervision of different Team leaders. Mr Brian Collins was on the right track in his attempts to resolve the situation with the applicant. Although this was aborted by the intervention of a more senior manager ordering him to have his radio checked. The applicant remains committed to the ideals of the company even if not to its line managers. I accept that if reinstated he would, contrary to the other claims made in evidence continue to promote the interests of his employer against its competitors including Telecom. I have very reluctantly come to the conclusion that it is impracticable to reinstate the applicant. He still bears a sense of injustice, which may not have been overcome by these proceedings. The applicant in his final submission gave the first positive sign that would support his claim that reinstatement is not impractical. I am satisfied that a number of other members of staff below a supervisory level would not welcome his reinstatement. Although it is a large organisation, which may be capable of giving him a fresh start elsewhere, this of itself, is not a sufficient justification. The applicant still bears a sense of injustice with a strong desire for further vindication. I cannot be sure that he would modify his previous practice. In the circumstances of this case I am of the view that the discretion should be exercised against the applicant. Therefore I find that it is impractical to reinstate the applicant. COMPENSATION Ordinarily an order for the payment of remuneration lost by the employee commences from the date of termination. However, in this case it should take into account the four weeks payment in lieu of notice. In view of this payment, there can be no breech of section 170 DB (2). The balance of three weeks needs to be taken into account in any award of compensation. In Nicholson v Heaven & Earth Galleries Pty Ltd (1994) 1 IRCR 199, Wilcox CJ, suggested it may be appropriate to make an assessment of the period of time in which the applicant might continue in his employment, before his termination was able to be properly completed. In that case Wilcox CJ found that the particular applicant was not suited to the type of work he had done. This is not the case here. This applicant had demonstrated, even with all his faults, that he could successfully complete installations. His personalty was such that he could develop a good rapport with the customers of Optus. In Sophie Caroline Lethern v Beresfield Pty Ltd trading as Titan Ford Brookvale (unreported IRCA decision dated 3 October 1995 No.542/95 McIlwaine JR), a situation arose where there was some dispute as to the number of the sales to be completed each month. In that case I stated: "It is essential for sales managers to put clearly to the sales persons under their control the results which they want the representatives to achieve and that failure to achieve those results will mean dismissal. Preferably, but not essentially, this should be done in writing. I am not satisfied on the evidence before me that either was properly done in this case." There was a failure on the part of management at any level to clearly state that he must complete at least two installations per day. This was never stated to him. He could have been given a mobile phone, or pager to assist him to improve his communication with his Team Leader. DISTRESS Although I am satisfied that the applicant did suffer distress of the nature outlined in Burazin v The Blacktown City Guardian Pty Ltd (1995 case, unreported IRCA Full Court decision, decision number 606/96, dated 13 December 1996). I do not think it is necessary to make any assessment in this case. NON ECONOMIC LOSS CAUSED BY UNLAWFUL TERMINATION ON GROUNDS OF FILING A COMPLAINT In order for there to be a connection between a breach of duty and for damages to follow, it is necessary to show that the breach relied upon was a cause of the loss suffered. The test as to whether the act or admission was a cause of damage is one of common sense. My assessment of the key witnesses in this case leads me to conclude that a proper working relationship cannot be re-established. Nevertheless, I acknowledge that the finding which I have made on the allegation of an unlawful termination on the ground of filing a complaint may in some cases require a declaration reinstating the applicant. However, I have taken into account the observations of Kirby J at p 70 in Qantas Airways Limited v Christie (1988) HCA 18, 19 March 1988: "But if reinstatement were not ordered, questions of compensation and damages would remain. By such means a court could vindicate the provisions of the Act in circumstances which took into account the mitigating factors, including some of those upon which Qantas relied." There is extensive discussion of the assessment of non-economic loss in sexual harassment cases such as: 1. Bennett & Anor v Everitt & Anor (1988) EOC 92-244 2. Tammy Jackson v Riste Ilievskil (Innes, Com., Human Rights and Equal Opportunity commission, 10 February 1997, unreported decision number H96/85 3. Lorelle Dippert v Cliff Luxford and Vrachnas Betabake Pty Ltd (1996) EOC 92-828 4. Hall, Oliver and Reid v Sheiban (1989) 85 ALR 503 Based on an examination of these cases it is reasonable to conclude that a range exists from $6000 to $9000 for such damages. I am satisfied, having reviewed the above cases, that an assessment of $6000 for the damage suffered through the failure of the respondent to protect the applicant from injury caused by the unlawful termination of his employment with Optus. I am satisfied that the applicant has made genuine attempts to seek other employment. These approaches have been, for whatever reason unsuccessful. He has been unemployed for in excess of six months. In these circumstances the maximum amount allowed by the legislation is applicable. The respondent is to have the benefit of the monies paid to the applicant by way of Notice. CALCULATION OF AWARD OF COMPENSATION There being these findings and the contravention of the Act it follows that it is necessary to assess the amount of compensation which should be ordered. According to his Termination Advice, his taxable salary was $33,637.50. This should be rounded up to $33 650. The amount of compensation considered to be appropriate is a total of twenty-three weeks which equates to fourteen thousand, eight hundred and eighty dollars ($14,881.00). It can be seen from the findings that there was not a termination of the employment of the applicant by the respondent which has contravened s 170DB (2). The amount of one weeks wages applicable under this section has been taken into account in this award. Council for the respondent, Mr Dixon and Ms Thackery, his instructing Solicitor conducted themselves very properly in this case. It is always difficult to appear against an unrepresented party and the applicant was no exception. At all times they vigorously pursued the case for the respondent whilst taking into account the difficulties faced by the applicant which was of assistance to the Court. I repeat my earlier observations about the need for Optus to review its policy on alcohol and drug usage. This is a most important issue given that its employees are working in the electrical industry and the lives of the fellow employees may be in danger by a failure to take a strong stand on this issue. There will be judgment and order accordingly. I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar McIlwaine Associate: Dated: 16 October 1998 Applicant: Unrepresented Counsel for the Respondent: H. Dixon Solicitor for the Respondent: K. Thackeray Minter Ellison Solicitors Date of Hearing: 3.5.96, 21.5.96, 3.6.96, 13.6.96, 19.6.96, 3.7.96, 29.7.96, 30.7.96, 31.7.96, 1.8.96, 3.2.97, and 10.2.97 Date of Judgment: 16 October 1998