Industrial Relations Commission of New South Wales CITATION: Bull &City of Botany Bay [2008] NSWIRComm 1041 APPLICANT: PARTIES: Mr Raymond Bull RESPONDENT City of Botany Bay FILE NUMBER(S): 2216 of 2007 CORAM: Ritchie C Claim for unfair dismissal Applicant employed to work in Mayors office to carry out administration and driving duties. Issue arose over the working of overtime in conjunction with driving for the mayor at night. Applicant agreed to work overtime on a Friday and Sunday night but went sick on Saturday and did not work the Sunday night. The following Monday his doctor provided a workcover certificate putting him off work for over one month. CATCHWORDS: That Monday he was required to see the Manager-Human Resources who terminated him for misconduct in that the applicant had broken his word and not worked the Sunday overtime and for the unauthorised use of the vehicle in going home for lunch. Commission found that termination for the stated reasons was harsh,unjust and unreasonable. Applicant sought re employment or compensation. Commission found unable to consider re employment as no evidence of available or suitability of another position provided to Commission. Applicant had been receiving compensation payments(from previous employer) post his termination. Commission awarded compensation taking the workers compensation payments into account. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 29 /04/08 DATE OF JUDGMENT: 20 May 2008 APPLICANT Ms L Tucker of Kingsford Legal Centre LEGAL REPRESENTATIVES: RESPONDENT: Mr J. McConnell of Local Government Association of New South Wales. DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie Commissioner 20 May 2008 Matter No IRC 2216 of 2007 IN THE MATTER OF: Raymond Mathew Bull and City of Botany Bay Application by Raymond Mathew Bull re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2008] NSWIRComm 1041 Background. 1 Mr Raymond Bull (the applicant) commenced employment with the City of Botany Bay (the respondent) on 5 April 2006 in the position of Mayor's Office Driver and Office Assistant. He was terminated from that position on 10 December 2007. He filed a claim for unfair dismissal on 17 December 2007. His weekly base wage at termination was $844 (gross). 2 The application had a number of mentions/conferences in February 2008 before Connor C. but failed to settle and Directions for the filing and serving of evidentiary material was provided to the parties. 3 The matter was listed for Hearing on 29 April 2008 where at the end of proceedings the Decision was reserved. 4 At the hearing Ms L. Tucker of the Kingsford Legal Centre appeared for the applicant and Mr J. McConnell from the Local Government Association appeared for the respondent. Applicant's case. 5 The applicant filed a statement and a statement in reply. He was subject to cross- examination. It was the applicant's evidence that he carried out office duties within the mayoral office of the Council and chauffeured the Mayor around Sydney both within and outside normal office hours. The applicant was paid overtime when he worked outside his normal office hours. 6 The overtime that the applicant worked was irregular. Sometimes working every night Monday to Friday and then nothing for a few weeks. He on occasions was required to work on the weekends. The Mayor's appointments would be in his diary and the applicant would make himself available in accordance with the diary. The applicant would liaise with the respondent's Public Relations Manager (Ms Christine Stamper who is the wife of the Mayor), with either party ringing each other on the day, to ascertain if he would actually be required. Depending on the event that the Mayor was attending, the applicant would physically accompany the Mayor at the event then drive him home or stay in the car until the May left the event. 7 In September 2007 the applicant spoke to the Public Relations Manager and raised two issues that he was concerned about, with respect to the overtime aspect of his job. He sought a twenty-four hour confirmation that he would be required to drive. He also sought the ability depending on circumstances to be allowed to drop the Mayor off at the event, and then return to collect him when the Mayor sought to leave. He disliked the requirement to sit in the car for extended periods waiting to drive the Mayor home. He also approached the Mayor seeking some relief from the requirement to work in the office all day then sit in the car at night for long periods. The Mayor advised that he would try to work something out. 8 The next day the respondent's General Manager Mr Peter Fitzgerald spoke to him and the applicant outlined his problem. He stated that he was having trouble with the lack of certainty as to whether he would be needed and the requirement to sit in the car for five or six hours at night. The applicant was advised that this was part of his job, which was not going to change, and if he did not like it then he could leave. The General Manager advised that if he was not going to do the overtime, then he would be sacked. He was told to go away and think about it. 9 On 27 November 2007 he sought not to work overtime that night, as it was his son's birthday. The Public Relations Manager advised him that due to the lack of notice he would have to work. He worked the overtime that night. 10 On 5 December 2007 he was scheduled to work but was cancelled at the last moment. That day was the applicant's birthday and he had advised his family that he would not be home. 11 On Friday 7 December 2007 he was told that he would be required to work both that night and on Sunday night. That afternoon he had a meeting with the Deputy General Manager Ms Cullinane. They discussed several issues including the working of overtime. He said he would work the overtime for that night and the Sunday night. He worked that night but on the following day he communicated with the Public Relations Manager and advised her that he was not well and that he could not drive the Mayor tomorrow night. He said that was the first time he had not done overtime. 12 On Monday 10 December 2007 he attended his doctor and was provided with a Workcover NSW Medical Certificate diagnosis that he had: "Adjustment disorder with anxious mood". How the injury occurred : "Work place stress". He was assessed as unfit for work from 10 December 2007 to 14 January 2008. 13 Mr Martin Perry the respondent's Human Resources Manager rang the applicant. The applicant was asked why he was not at work that day ? He said that he was sick and that he had a medical certificate. He was asked to come into work and see Mr Perry. 14 He went to work and provided Mr Perry with the certificate. The applicant was then advised that he was terminated for misconduct. He was not told what was the misconduct but that he would receive a following letter. No mention was made of the misuse of Council property. Later that day the applicant rang Mr Perry to seek for the respondent to change their decision. Mr Perry said to give him 24 hours and he would get back to him. 15 It was not until during the unfair dismissal proceedings that he was told that the use of the respondent's car to go home at lunchtime constituted the misuse of Council's property. 16 On 14 December 2007 the applicant received a letter (dated 13 December 2007) from the respondent confirming that his employment had been terminated. The letter quotes in part: The reasons for your employment being terminated are as follows: · Misconduct · Incorrect use of Council provided equipment. In his termination pay, it was stated, was the payment of two weeks pay in lieu of notice. 17 The applicant stated that, since his termination, he had applied for about twenty jobs and has had three interviews but as yet had not been offered employment. No evidence of these applications was provided to the Commission. 18 The applicant advised in his statement in reply that in completing his original pre-employment form with the respondent, he made a mistake and did not advise that he had been injured when working for Qantas. This injury was 12 years ago and he had continued working for Qantas for a further seven years before being made redundant. This omission was a mistake on his part. 19 He did advise during cross-examination that he did still receive workers compensation benefits when his pay dropped below a certain figure. Since his termination he had been receiving a weekly workers compensation payment of $470 nett. Ms Tucker advised during her final submissions, this payment would have to be taken into consideration if the Commission awarded monetary compensation. In correspondence directed to the Commission dated 1 May 2008, Ms Tucker advised that where an award of compensation was made to the applicant by the Commission, no deduction needed to be made from the quantum, as the worker's compensation provider would seek reimbursement of any sum already paid. 20 In answering questions from the Commission, the applicant advised that he still had medical restrictions emanating from the Qantas workers compensation claim, they being not able to lift over 20 kilos and no repetitive bending. He also stated that he completed and passed a medical fitness examination on commencing with the respondent. 21 The applicant's primary relief sought was for re-employment to another position. No evidence was provided to the Commission as to what constituted a suitable job that the applicant could carry out, its duties or the skills/qualifications required. If that was unsuccessful then the applicant sought maximum compensation. 22 In her final submissions Ms Tucker stated that the applicant had been called into work whilst on sick leave and had been given no opportunity to explain prior to being terminated. There had been no formal warnings given to the applicant prior to his termination. There had not been any procedural fairness nor any substantive reason(s) to support this termination. 23 The respondent could have directed the applicant to the respondent's own doctor, in accordance with the award, if there was any doubt over his ability to work but did not do so. The Sunday that he did not work was the first time he had not worked overtime and that was because he was sick. The applicant had previously brought to the respondent's attention that he was frustrated at the conditions that he worked the overtime. Firstly, the uncertainty of whether he was actually required to work and secondly the period he had to spend sitting in the car after he had worked a full day. He was not told that it would be on an "on-call basis" when he was interviewed for the position. The respondent had failed to discharge their onus to prove the misconduct. There had been no explanation at all as to what constituted the improper use of the Council's equipment. Respondent's case. 24 The respondent filed six affidavits. All six were placed into evidence with minor deletions as a consequence of objections raised by Ms Tucker, but were not required for cross- examination. 25 In her affidavit Ms Lorraine Cullinane the Deputy General Manager of the respondent, stated that she had cause to speak to the applicant on Friday 7 December 2007. She raised the following issues: · Unauthorised use of mayoral and pool car for personal/lunch times. · The need to advise fellow workers of his whereabouts when out of the office · Lunch break is the one hour from the time one leaves the office until one returns to the office. · Not to leave work early taking into consideration the returning of the car to the respondent's compound. · The need to adopt more of a team spirit attitude towards work colleagues. She told the applicant that he would now leave the car at the Mayor's office located at Eastgardens and therefore would be required to start and finish from that location 9.00am to 5.00pm. unless overtime was to apply. If because of the mayor's requirements other arrangements had to apply then common sense would prevail. She stated that the applicant did not wish to do any overtime because it prevented his wife from applying for a job. He was advised that the doing of overtime was part of the job. If he did not wish to work on a particular night then he should give notice and someone else could do that night's overtime. He also made comment that he wanted to work in administration. She replied that at the moment there no vacancies but he should apply when they become available. He then asked to be sacked so he could obtain the dole straight away but this was refused. He then said he would do no work beyond 5.00pm, and then again sought to be sacked. This again was refused. He promised he would work overtime that night and on the Sunday night. He was then allowed to go home early. A further meeting was arranged for the next Monday morning to continue their discussions. On the next day Saturday 8 December 2007, she stated that she received a phone call from the respondent's Public Relations Manager to say that she had received a SMS message from the applicant stating that he was unwell and that he could not work overtime on the following night and most probably would not be back that year. The weekend of the 8 and 9 December 2007 and the following week was one of the busiest periods of Council/Mayoral activities leading up to Christmas and the applicant's withdrawal of services at such short notice was considered to be serious misconduct in light of his recent poor performance plus the undertaking the applicant had given her during their meeting on the previous meeting. On the following Monday after discussions with the General Manager concerning the applicant's behaviour she instructed the Manager- Human Resources to terminate the applicant's performance. 26 The General Manager Mr Peter Fitzgerald stated that he had spoken with the applicant in September 2007. He said that the applicant no longer wanted to work as a driver and asked if he could find him an alternative position. It was the working of the overtime at night that was the issue, as his wife could go back into the workforce, if he could work regular hours. He was advised that he would have to apply for an internal vacancy like anyone else. The applicant said that he would refuse to do overtime or carry out the role for which he was employed to do. It was agreed that he would think about seeking a transfer. 27 Ms Sharon Gordon is the Human Resources Officer of the respondent. She carried out the recruitment of the applicant. She stated that it was made clear to the applicant what the job entailed and that the overtime worked at night was a combination of scheduled and short notice work with peak loads around Christmas. It was her view that the applicant acknowledged what she had said and that this did not present any problems. 28 Ms Dionissia Malliaras is the secretary to the Mayor. She worked within the small administration office of the Mayor with the applicant. Her affidavit went to the issues of a gradual decline in the assistance given to her by the applicant in the daily work in the office, his lack of co operation in the co ordination of taking lunch breaks and the actual time taken in having lunch. She said that the applicant never complained to her about the excessive overtime he worked, but when the Mayor was away he complained of the lack of overtime. 29 Ms Christine Stamper is the respondent's Public Relations Manager. She works within the Mayor's office. She also noted the decline in the applicant's show of initiative. The issue of having to work on the night of his son's birthday was raised by the applicant to her. She stated that he should have raised this at an earlier time so alternative arrangements could be made. She said that alternative drivers were available but notice was necessary. She confirmed that she had received a SMS message from the applicant on the Saturday in December 2007 stating that he was not feeling well, he couldn't drive the Mayor on Sunday night and that he probably would not be in next week. As the office closed down for Christmas on 14 December then he would be absent for the rest of the year. She denied that she had ever given the applicant approval to use the respondent's vehicle to go home for lunch. She also stated that it was necessary for the applicant to advise her where he was during the day because he worked within a small team. She was also present when the applicant stated that you could not be sacked from the Council once you had been employed for twelve months. 30 The respondent's Manager Human Resources, Mr Martyn Perry stated that he received a phone call on Monday 10 December 2007 at 8.30am from Ms Cullinane advising him of the events that had taken place on the previous Friday and Saturday. Ms Cullinane instructed him to find out why the applicant was not at work and to call him in to terminate his employment for gross misconduct and unauthorised use of the respondent's equipment. 31 He said that he rang the applicant and was told that the reason he was not at work was because he was sick and that he was going to get a doctor's certificate. The applicant was directed to attend Mr Perry's office. At the meeting the applicant provided the workers compensation medical certificate to Mr Perry. The applicant was then advised the two reasons why he was being terminated. The applicant then sought clarification as to what he had done that constituted misconduct. He was advised that he had given an undertaking to Ms Cullinane that he would do the overtime on both Friday and Sunday nights. This he had failed to do therefore he had broken his word. No explanation was given to the applicant with respect to the incorrect use of Council equipment. 32 The applicant was then provided with a GIO Workers Compensation Claim form, which he duly completed. Mr Perry explained to the applicant, that an employer can not terminate an employee due to an injury during the first six months, and that a worker can not claim workers compensation due to stress resulting from discussion relating to his poor work performance. 33 A couple of days later he contacted the applicant and advised him that the termination would stand. 34 He also stated that on 20 December 2007, he received an enquiry from Alliance Insurance seeking information from the respondent with respect to the applicant's wages details. Documentation signed by the applicant was sighted. The reason for the call was in conjunction with a claim made by the applicant concerning a lower back claim with a previous employer that the applicant had not disclosed during his pre employment medical check. 35 What action the respondent may have taken as a consequence of this omission by the applicant was not expressed. 36 In his final submissions Mr McConnell stated that the applicant had clearly told Ms Callinane that he would work the overtime on both the Friday and Sunday nights. He did not work the Sunday therefore he had broken his word. The incorrect use of the Council's equipment was the applicant's actions in taking the respondent's car home at lunchtime. Mr McConnell confirmed that no written counselling was given to the applicant with respect to the use of the respondent's car to go home for lunch. At the point of termination on Monday 10 December 2007, the applicant had been told by Mr Perry of the two reasons for his termination. He also stated that the medical certificate provided to the respondent by the applicant on 10 December 2007 was not relevant. He was required to work overtime but he had advised both the General Manager in September 2007 and the Deputy General Manager in December 2007, that he did not wish to work overtime, yet this was an essential part of the job. After the Christmas break he would not work anymore overtime. Mr McConnell accepted that the applicant's claim that he was not going to work any more overtime was never able to be tested as he was terminated. The Commission received a written response dated 2 May 2008, quoting relevant cases, from Mr McConnell in response to Ms Tucker's correspondence concerning the issue of the applicant receiving weekly workers compensation payments post his termination. In his view such workers compensation payments must be taken into consideration by the Commission when determining the issue of remuneration received under section 89(6) of the Act. Considerations and Decision. 37 The two reasons for termination by the respondent were expressed in the applicant's letter of termination. That correspondence makes no comment about poor work performance or poor attitude. The applicant's actions in not working overtime on Sunday 9 December 2007 broke the arrangement that the applicant and Ms Cullinane had arrived at during their discussion on the previous Friday afternoon. The applicant had advised Ms Cullinane that he would work both Friday and Sunday night's overtime. It was because he did not work on the Sunday night that he broke his word. The medical certificate he provided to the respondent on the Monday morning placed him on sick leave from that day until 14 January 2008,the same date as the treatment review. The respondent considered this medical certificate as not being relevant. I do not accept this submission of the respondent or that the applicant's actions constituted misconduct. I believe the medical certificate provided to the respondent prior to him being terminated should have been accepted on face value that the applicant had a medical problem, which required him to be absent from work for over one month. The medical certificate supported the applicant's comments to the respondent's Public Relations Manager on the Saturday that he was unwell. This not working on the Sunday night was the first time that the applicant had not worked overtime due to illness. With this medical information at hand the respondent should have allowed the applicant to proceed on sick leave/workers compensation leave. If there were doubts as to the illness of the applicant being genuine, then as Ms Tucker submitted, the respondent could have sent the applicant to their doctor for a medical review. This they did not do. There was no evidence before the Commission that this option was even considered. At the return from such sick leave it would then be appropriate for the applicant and respondent to meet to discuss his work issues. As I understand the evidence this kind of meeting was to take place on 10 December 2007 between the applicant and Ms Cullinane. The actual working of the overtime from the applicant's point of view was not the issue. The two issues were the uncertainty of whether the applicant was actually required (he sought 24 hours notice) and the necessity to be in attendance (waiting in the car) for the duration of the evening's event. 38 I accept the respondent's view that the provision of prior notice by the applicant is necessary, if for a special reason he did not wish to work. It may also have been possible for the use of a relief driver to work the overtime on a shared basis. 39 The other reason for the termination was the use of the respondent's vehicle by the applicant to go home for lunch. This unauthorised use of the vehicle, was said to have been a subject discussed between the applicant and Ms Cullinane at their meeting on Friday 7 December 2007. There was no evidence before the Commission that such unauthorised use would of itself, have resulted in a termination. As the applicant was sick on the following Monday, there was no opportunity for him to repeat this unauthorised use. I do not accept that this use of the vehicle as expressed, constituted a valid reason for the applicant's termination at that point. I could understand the respondent's position if the applicant had been previously told not to use the vehicle for personal use and had not followed this direction, but this was not the fact in this matter. 40 Whilst not expressed as a reason for termination the respondent raised the issue of the applicant refusing to work overtime in the future when he returned from the Christmas break. I accept the respondent's submission that, the working of overtime was part of his job. The difficulty the respondent had in raising this issue in support of the action to terminate, is that the applicant was not given the opportunity to carry out this proposed refusal, prior to being terminated. 41 In my view it would seem that Mr Perry received clear instruction that Monday morning to terminate the applicant and this he did without carrying out an independent assessment as to the substance of the reasons for the dismissal. In summary it is my finding that the termination of the applicant for the reasons expressed by the respondent, was harsh, unjust and unreasonable. 42 Section 89 of the Act sets out the options available to the Commission where a finding has been made that a termination has been harsh, unjust or unreasonable. Whilst, no application was made by the applicant to seek reinstatement, I do believe taking into consideration the evidence that fell during this case, that it would be impracticable to reinstate the applicant back into his previous position. 43 The applicant sought as his primary claim, re-employment under section 89(2) of the Act to another position. What this other position(s) was and the skills and knowledge required to successfully carry out this position, was not expressed. In fact no evidence was placed before the Commission by either party, as to the availability of such a position or suitability of the applicant, taking into consideration his medical restrictions, to such a position. Without such basic evidence, the Commission is not in a position to make a finding on such a claim as to whether it would be impractical or not. 44 As a consequence of the above, I now proceed to consider the awarding of compensation in accordance with section 89(5) and the assessment of same, in accordance with section 89(6) the Act. The applicant had been employed with the respondent for a period of some twenty months prior to his termination and advised that he liked his job. The applicant stated that he had applied for a number of jobs since his termination and had been for several interviews, so far without success. Ms Tucker called for an award of compensation at the top of the range because of the unfairness of the respondent's actions. I have noted the submissions of Mr McConnell with respect to the consequences of the applicant receiving workers compensation whilst he has been unemployed since his termination and I accept his view. I therefore make the following Order : ORDER 1. That the City of Botany pay to the applicant Mr Raymond Mathew Bull the sum of sixteen thousand five hundred dollars ($16500). 2. That this payment must be made to Mr Raymond Mathew Bull within twenty one days of the date of this Decision. D.W. Ritchie Commissioner 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.