Industrial Relations Commission of New South Wales CITATION : Hogbin v Leviathan Maintenance Services [2001] NSWIRComm 283 PARTIES : Amanda Hogbin Leviathan Maintenance Services FILE NUMBER: IRC2692 of 2001 CORAM: Harrison DP CATCHWORDS : Unfair dismissal - alleged misconduct - abandonment of employment Held - not proven - termination harsh unreasonable and unjust - compensation awarded LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 HEARING DATES: 09/05/2001 DATE OF JUDGMENT: 11/09/2001 APPLICANT Mr J Wormington of Counsel LEGAL REPRESENTATIVES: RESPONDENT Mr Gary Colston JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 9 November 2001 Matter No IRC 2692 of 2001 AMANDA HOGBIN AND LEVIATHAN MAINTENANCE SERVICES Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2001]NSWIRComm283 1 This matter was subject to arbitration proceedings on 5 September 2001 consequent upon earlier proceedings which determined that the matter could not be settled by agreement between the parties and which gave rise to directions for the filing and serving of statements of evidence. 2 On hearing Mr J Wormington of Counsel appeared on behalf of Ms Hogbin, the applicant. Mr Gary Colston, Managing Director of Leviathan Maintenance Services (the respondent) appeared on behalf of the respondent. 3 Mr Wormington brought evidence from Ms Hogbin; and Mr M Quinn, the applicant's boyfriend. 4 Mr Colston brought evidence from Mr K Kennett, an employee of the respondent; Mr J Leal, an employee of the respondent; Mr E (Ted) Colston, an employee of the respondent and Mr Gary Colston's father. Mr (G) Colston gave evidence by way of statement (ex 8) which he deposed under oath, and was subject to cross examination by Mr Wormington. THE EVIDENCE 5 The evidence is that the applicant was employed from 1 September 2000 to 26 March 2001 in the classification of Head Gardener pursuant to the Cleaning and Building Services Contractors (State) Award (325 IG 287). 6 The first three months of the applicant's employment constituted a probationary period. The applicant was paid $717.12 per week and allowed the use of a company utility truck for travel to and from work and for limited personal use. She was also provided with a mobile telephone. 7 The respondent held a contract with Eraring Energy to undertake land management functions involving the care and maintenance of lawns, gardens and surrounds at Eraring Power Station ('Eraring') near Morisset on the western side of Lake Macquarie. A condition of the contract was that the work be supervised by a person holding formal qualifications in horticulture. The applicant holds the necessary qualifications, hence her classification as Head Gardener. 8 The applicant describes her duties and responsibilities at point 4 of her affidavit of evidence (ex 1) in the following terms: 4. My duties and responsibilities included supervision and training of apprentices and labourers, liaison with Power Station Reps, general maintenance of grounds, scheduling and carrying out maintenance of mechanical equipment, first aid officer and site safety officer." 9 The applicant deposed that she had never been subject to complaint or reprimand from the respondent and, with the exception of a pay rise one month after the commencement of employment and again five months into the period of employment, circumstances were described as uneventful until the week preceding 26 March 2001. 10 The applicant's evidence is that in the week prior to 26 March 2001 problems were encountered with the operation of a tractor used on site. The applicant deposed that Gary Colston attributed the tractor problem to her failure to maintain fuel at appropriate levels, addressing her in an aggressive manner and in her evidence yelling and swearing at her so as to create a state of some distress. 11 The applicant's evidence is that on Friday, 23 March 2001 Ted Colston informed her that he required the company utility allocated to her for his use on the weekend. Her evidence is that subsequent to Ted Colston taking the utility, she realised that she had left two rolls of undeveloped film in the ashtray of the vehicle. On Monday, 26 March 2001 the applicant discovered that one roll of film had gone missing. She made enquiries of Ted Colston and Gary Colston, resulting in a heated verbal exchange in which each accused the other of lying. 12 It is alleged that Gary Colston questioned whether the film had existed at all; the applicant defended her credibility, asserting that Gary Colston had lied to her previously by failing to inform her that another employee engaged through a disabled employment placement service was prone to epileptic fits. Her evidence is that the employee concerned had in fact suffered a fit during the course of employment, for which she was not prepared and, whilst no permanent injury was suffered, she was shaken by the event. 13 The altercation concerning the missing film concluded with Gary Colston informing the applicant that she was no longer supervisor; that she would take her directions from Ted Colston; that she was not to drive the company utility at all; and not to use the mobile telephone. 14 The applicant's evidence is that she was shocked by these events, which struck at the basis of her contract of employment and she had great difficulty maintaining self control. The applicant deposed that she was in shock and visibly shaking, and that when she tried to talk to Ted Colston he refused to discuss matters with her. Her evidence is that work continued without verbal exchange between them. 15 The applicant's evidence is that she felt victimised and was unable to stop crying throughout the morning; and that when lunchtime came she was driven back to the lunchroom by Ted Colston in a state of some distress which she managed to keep under control. 16 The applicant deposed that she was having trouble breathing and was so distressed that any further attempt to converse with Ted Colston worsened her emotional state to the point where she feared she would lose control and break down. 17 The applicant's evidence is that she left the site, drove to her regular medical practitioner, was given Ventolin by the surgery attendant and instructed to rest until the doctor arrived at 2.00 pm. The applicant deposed that she was still upset when the doctor arrived. The doctor counselled her and provided her with a certificate. The original Doctor's certificate issued by Dr Wood on 26 March 2001 (Att. K to ex 8 [Gary Colston's affidavit of evidence]) states that the applicant was suffering from "reactive depression resulting from extreme stress in workplace (witnessed)" and that she was unfit for work from 26 March 2001 for a period of 14 days. 18 On 17 July 2001 Dr Wood issued a report (att.A to ex 1) in the following terms: To Whom it may concern, Amanda Hogbin presented to Dora Creek surgery on 26/3/01 in a very distressed state. She was so emotional she was taken to the procedure room to be seen by our practice nurse because she was hyperventilating (12 noon). I saw Amanda at 2pm. She was still crying and unable to talk coherently for about 10 minutes. Amanda told me she had been shouted at and verbally abused by her employer at work earlier in the day. She found it difficult to continue working and became so emotional and agitated that she need to be seen for medical attention. Her symptoms were consistent with extreme anxiety and "panic attack' and she required a long consultation to finally calm and reassure her that she was not ill and would be able to go home. I did not believe it would be appropriate to return to work for a few days due to her anxiety state, and wrote her a certificate. Amanda continued to see me intermittently for follow up and informed she had been 'sacked by her employer. As her condition was due to harassment (alleged) by her employer I felt it was appropriate to become a workcover issue. 19 The evidence of Gary Colston is that he was concerned that the applicant had not informed anyone of her whereabouts or that she had left the site, which he put was a serious breach of Eraring's security protocol. 20 Mr (Gary) Colston deposed that all employees are issued with a magnetically encoded card to activate site entry and exit points and so record an individual's entry and departure. He put that these procedures are supported by a requirement that persons communicate their whereabouts and actions to other responsible persons and to the gatekeeper at all times. He further deposed that the procedures are in place so that the whereabouts of all persons are known in the event of an emergency. Attachment B to Mr Colston's affidavit (ex 8) is a Site Specific Safety Management Plan for Eraring. This procedure states in part: f) Evacuation Hazard - Circumstances may prevail whereby immediate evacuation of the Power Station site is required. … … If evacuation is required it indicates an extremely serious threat and evacuation procedures are to be followed. To facilitate the orderly compliance with all evacuation procedures the Site Supervisor is to be made aware of all movements by personnel in and around the Power Station site. Once on site all personnel are required to report to the Site Supervisor before leaving the site for any reason." 21 The applicant denied that she had breached site security by departing in the manner described, deposing at point 17 of ex 1: 17. It was everyday practice to leave the power station site; to work on other areas owned by the power station. I would also regularly leave the site to get fuel and spare parts. At no time did I have to notify anyone I was leaving site, however. I did have a magnetic security pass which I swiped when leaving and returning. I was advised during the site induction that if there was an evacuation they could hit a button and know if people were on or off the site. " 22 The applicant denied that she has ever seen attachment B to exhibit 8. The Site Specific Management Plan for Eraring is undated. There is no evidence by signature or record of issue that this document was ever provided to the applicant. 23 It is Gary Colston's evidence that he sought out the applicant without success. Mr Colston deposed that he telephoned Mr Quinn, who was unaware of the applicant's whereabouts. Mr Colston subsequently attended the caravan park where the applicant and Mr Quinn lived, but could not make contact with her though he formed the view that she was there. 24 The evidence of the applicant is that she was at the caravan park when Gary Colston attended and hid in her van in a state of some anxiety, not wishing to converse with him as at that time she felt threatened and intimidated by him. 25 The applicant's evidence is that on Mr Quinn's arrival she requested he to telephone Gary Colston to inform him of the circumstances and obtain a facsimile number in order that the doctor's certificate could be provided to him. Mr Quinn's evidence is that he called from the public telephone in the caravan park, informing Gary Colston that the applicant would be absent for one week and requesting a facsimile number, which Gary Colston declined to supply. Mr Quinn's evidence is that the call was disconnected due to the expiry of the time paid for by the coins available to him at the time. 26 The evidence of Mr Kennett, Mr Leal and Ted Colston supports the description of the altercation between the applicant, Ted Colston and Gary Colston concerning the missing film. 27 This evidence is supportive of the version given by Gary Colston. Mr Wormington put that the evidence was so similar so as to raise serious questions of credibility. 28 The account of the exchange concerning the film does not materially differ between the applicant and the respondent other than the denial by Gary Colston that he was aggressive toward the applicant. 29 The evidence of Gary Colston asserts that the applicant's employment had not been entirely satisfactory, alleging that there had been some misuse of the company utility and the mobile telephone. This is denied by the applicant. 30 Gary Colston's account of his visit to the caravan park in which he unsuccessfully sought out the applicant is consistent with that given by the applicant in her evidence. 31 The applicant's employment was terminated by correspondence dated 26 March 2001. The termination notice (att. J to ex 8) states: "Please be advised that as at 3.30pm this date your employment with Leviathan Maintenance Services has been terminated forthwith for a serious breach of safety protocol by leaving the Eraring Power Station site without notifying your supervisor and for continuing to remain absent without notification. These acts constitute Gross Misconduct and Wilful Disobedience. Attached are copies of relevant pay slips and a cheque in the amount of $718.90 being payment in full for outstanding wages and entitlements." 32 Attachment L to ex 8 is further correspondence from Gary Colston to the applicant confirming that the Doctor's certificate dated 26 March 2001 (att K to ex 8) was received by facsimile on 27 March 2001. This correspondence further informs the applicant that the certificate was forwarded to the respondent's insurance company and requests return of the magnetic pass and any other items in the applicant's possession belonging to either Eraring or the respondent as soon as possible. SUBMISSIONS 33 Mr Wormington submitted that the conduct of the applicant did not support termination of employment, let alone the more extreme penalty of summary dismissal. 34 Mr Wormington put that the applicant was a defenceless young lady who did not deserve to be treated in the threatening and harassing manner exhibited by the respondent. Mr Wormington submitted that the incident started out as a relatively minor matter which absent emotion could have been resolved by appropriate investigation and that there was ample opportunity for amicable resolution of the matter. 35 Mr Wormington put that I should accept the evidence of Mr Quinn that he contacted Mr Colston on the afternoon of 26 March 2001, presenting such an opportunity. Mr Wormington put that if this evidence is not accepted, the respondent acknowledges that he was in possession of a doctor's certificate within 24 hours thereof providing a further trigger for rational investigation and discussion. 36 Mr Colston submitted that the applicant was made aware of site safety procedures and the need to inform appropriate personnel of departure from the site. 37 Mr Colston put that the applicant's version of events should not be accepted as she failed to bring available witnesses to support her, in particular Mr Gavenlock, an employee of Eraring Energy, and the manageress of the caravan park. 38 Mr Colston submitted that the applicant's evidence that she calmly initiated her request for return of the film is not to be believed, putting that the applicant became irate and demanded he attend the site. Mr Colston put that his attendance at Eraring is evidence of this. 39 Mr Colston submitted that the applicant had abandoned her employment, submitting that her actions fell within the description of abandonment. Mr Colston relied upon the description of abandonment found in Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 in the following terms: "Abandonment of employment is the leaving of employment by the employee without due and proper notice. Where there is repudiation of the contract by one party, the other party may choose whether or not to accept the repudiation." CONSIDERATION 40 The allegations concerning misuse of the company vehicle and mobile telephone are without substance. 41 The evidence supports a finding that the applicant was severely distressed by the events surrounding the missing film and that this distress was provoked and exacerbated by the manner in which Messrs Gary and Ted Colston reacted to the applicant's query concerning the film. 42 The evidence does not support the allegation that the applicant commenced the exchange concerning the missing film in an aggressive manner and was thus responsible for her own state of anxiety. If I were to be convinced that the applicant had commenced the exchange concerning the film in a state of some anxiety and was unable to be persuaded to settle down quickly, the removal of her supervisory role, motor vehicle benefits, and access to the mobile telephone is neither an appropriate nor reasonable reaction from Mr Colston, coming as it did in the course of the exchange, without warning, as a punitive measure. 43 It is regrettable that rather than argue the existence of the film and credibility of the applicant, Mr Colston did not take the more appropriate course of rational and methodical investigation of the matter. 44 The departure from Eraring Power Station by the applicant in the circumstances described do not amount to gross misconduct or wilful disobedience, so categorised by the respondent in the notice of termination of employment (att. J to ex 8). 45 There is no evidence to support a breach of safety or operational protocol. The applicant's evidence that "swiping" the magnetic card identified her and recorded her departure is entirely credible. There is no evidence to support a finding that the applicant was given a copy of the Site Specific Safety Management Plan for Eraring. In any event, I do not regard her departure in the circumstances as a breach of such magnitude so as to warrant summary dismissal. 46 Mr Colston's pursuit of the applicant to her residence, said to be in her best interests, was an inappropriate and insensitive intrusion in all the circumstances of this matter, known to Mr Colston at the time. 47 Mr Colston knew the applicant was distressed. Further, he knew that this distress was initiated in the workplace and that he was not uninvolved in it. The time for Mr Colston to be concerned about the applicant was before she left the site, not after. The evidence supports a finding that both Messrs Gary and Ted Colston were aware that the applicant was distressed by the exchange over the film, though neither took any action during the course of that morning to attempt to settle her down and put the mystery of the missing film on a proper course of enquiry. 48 The evidence is that a state of tension was allowed to continue in which Mr Gary Colston, and more directly Mr Ted Colston, maintained their accusations that the applicant was guilty of some gross misbehaviour and injury to them. 49 I find the termination of the applicant's employment to be harsh, unreasonable and unjust. The harshness of the termination is compounded by the fact that it took place whilst the applicant was on sick leave. The employer was in possession of a doctor's certificate confirming the applicant's inability to attend work. The termination of employment without further discussion with the applicant or enquiry by the respondent further compounds the unjustness of the dismissal. 50 I find that neither reinstatement nor re-employment are practical. 51 I assess compensation at $15,000.00 and so order. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 9 November 2001 Matter No IRC 2692 of 2001 AMANDA HOGBIN AND LEVIATHAN MAINTENANCE SERVICES Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ORDER Pursuant to section 89(5) of the Industrial Relations Act 1996 Leviathan Maintenance Services is ordered to pay the amount of $15,000.00 (fifteen thousand dollars) to Ms Amanda Hogbin within 21 days of the date of this decision. The Hon R W Harrison DEPUTY PRESIDENT DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.