Industrial Relations Commission of New South Wales CITATION: Ellis-Richards v James Nathan Industries [2005] NSWIRComm 1218 APPLICANT Trent Ellis-Richards PARTIES: RESPONDENT James Nathan Industries FILE NUMBER(S): 3684 of 2005 CORAM: McLeay C CATCHWORDS: Unfair dismissal - welder - work performance issues - verbal warnings given - lack of significant improvement - anonymous allegation against the applicant - allegation not the reason for dismissal - performance had serious impact on business - dismissal not harsh, unreasonable or unjust - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 11/15/2005 DATE OF JUDGMENT: 12/08/2005 APPLICANT Appeared unrepresented LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus, barrister with Mr J Basset and Mr J Camilleri DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 8 December 2005 Matter No IRC 3684 of 2005 Trent Ellis-Richards and James Nathan Industries Application by Trent Nathan Industries re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1218 1 This is an application by Trent Ellis-Richards against James Nathan Industries for unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Mr Ellis-Richards was employed by the respondent from 22 June 2004 until he was dismissed from the position of welder on 24 June 2005. 2 Mr Ellis-Richards claimed that he had been dismissed on returning to work after four days sick leave, being told that he was suspected of committing a robbery at the workplace on the previous weekend. He said he had not been given any previous written warnings about his conduct or performance. 3 Mr Ellis-Richards gave evidence on his own behalf. Mr Jeffrey Bassett, a Director of the respondent, gave evidence on behalf of the respondent, as did Mr Joseph Camilleri, the Managing Director. The business employs 14 people and produces steel pallets, cages, stillages and other similar products. The applicant had been employed initially as a casual employee and was appointed as a permanent fulltime employee from 10 February 2005. 4 Mr Bassett gave evidence that he became concerned about the work performance and conduct of the applicant soon after he became a permanent employee. He was the subject of two complaints from another employee about harassment which appeared to be racially motivated, and had been called to the office and spoken to about his behaviour. He was also called to the office and spoken to about the slowness of his work, and had agreed to pick up his standard. Mr Bassett also said that the applicant had worked on a valuable order for a client, Kleenheat, which was later found to be the subject of faulty workmanship, requiring Mr Bassett and Mr Camilleri to travel interstate to repair the work. 5 In June 2005, Mr Bassett said that he and Mr Camilleri decided that, due to the poor work and lack of significant improvement by Mr Ellis-Richards, they made a decision to dismiss him when they returned from interstate. 6 Meanwhile, on the weekend of 18/19 June, the business premises were broken into. Money and electrical goods were stolen. On the following Tuesday or Wednesday, an anonymous telephone caller named the applicant as one of two people responsible for the break-in. 7 Mr Bassett and Mr Camilleri called the applicant into the office on his arrival at work on Friday 24 June, following his absence on four days sick leave. Mr Bassett gave evidence that he said words to the following effect: Trent, due to the poor workmanship on the Kleenheat job together with your overall poor performance, conduct and attitude we are terminating your employment as of today. We have also been advised by an anonymous phone call that you were somehow involved in the break-in. This is not however, the reason your employment is being terminated. We have notified the police about the information we received. 8 Mr Camilleri's evidence was similar to that of Mr Bassett. He said that the applicant had twice been called into the office about his conduct - once in regard to racial slander and once in regard to slow work. He said: On about 2nd June [ another employee ] left the employment of the company. Trent's performance did not, however, improve. He was still slow and his work output was lower than that of other employees. He continued to distract other employees by constantly talking to them. I do not now recall specific times and dates but I know that these on-going concerns were raised with Trent. On each occasion it was stressed that he must stop the chatter and improve his performance. The on-going problems with Trent had been the subject of discussion between Mr Bassett and myself over some time and we had come to the joint conclusion that it was pretty clear that Trent wasn't going to improve and we should terminate his employment rather than prolong what was an unsatisfactory situation. 9 At the meeting on 24 June, Mr Camilleri said that he recalled that Mr Ellis-Richards asked several times whether he was being dismissed due to suspicion of robbery. He was assured each time that that was not so. 10 Mr Ellis-Richards said that his work performance and conduct had not been discussed as a reason for dismissal. He said that he had been told that there had been a robbery, and that another employee had received an anonymous call saying that a former employee and himself and been involved in the robbery. He said that he was told he could not continue to work while there was a police investigation of the incident. When he asked for more detailed information, he was refused. 11 Mr Ellis-Richards denied that poor work performance was given to him as a reason for his dismissal at the meeting on 24 June. He also denied that his conduct in terms of the harassment issues or wasting time of fellow workers were given as reasons for the dismissal. Under cross-examination Mr Ellis-Richards insisted that the only reason for the termination of his employment given to him at the final meeting with his former employers was the suspicion about his involvement in the robbery. He said he was advised by Mr Camilleri to get a lawyer, and not come back to work. 12 However, Mr Ellis-Richards responded to a question in cross-examination by saying: I was standing in the - I returned - I went to work that day as normal; walked into work. Before I was to resume my normal duties the leading hand of the factory was - had informed me that I was to wait in the bottom lunch room because Mr Camilleri and Mr Bassett were - required to see me. When I walked in to the lunch room I was sitting there and they both came in and that's when both allegations were thrown at me about poor workmanship and that I was going to get - the break in was the main reason they were -- 13 The following exchange took place between Ms Brus and the applicant: Q. So there were allegations of poor workmanship put to you? A. Only at that stage of when they confronted me on that Friday morning. 14 This statement by the applicant clearly indicates that the work performance issues were raised at the meeting as reasons for termination, as stated by Mr Bassett and Mr Camilleri. It throws his continued denial of the issues as reasons for termination into considerable doubt, to the extent that I am satisfied to accept the evidence of the witnesses for the respondent wherever it conflicts with that of the applicant. 15 Mr Camilleri conceded that he may have advised Mr Ellis-Richards that he should seek legal advice in regard to the allegation against him, but that he could not remember particularly doing so. He said that he and Mr Bassett had both impressed on Mr Ellis-Richards that the allegation of his involvement in the break-in and robbery was not a reason for his dismissal. 16 Mr Ellis-Richards recalled one verbal warning, which coincides with the evidence of Mr Camilleri and Mr Bassett that Mr Ellis-Richards committed to improving his performance. He denied receiving a warning in regard to racial slander, and denied such conduct. He expressed concern that no written warnings were issued. I am satisfied on the evidence that a number of verbal warnings were issued, both formally and informally. Further, given the size of the business and the continued efforts of Mr Camilleri and Mr Bassett to manage the situation on a face-to-face basis, I am satisfied that written warnings were not required and the verbal warnings were sufficient. 17 I accept that Mr Ellis-Richards was dismissed for the reasons provided by Mr Bassett and Mr Camilleri. I accept, as Mr Camilleri said, that the respondent made substantial efforts to maintain Mr Ellis-Richards' employment, trying to sort out the problems that existed and hoping that he would "come good". These efforts include the two formal warnings referred to in evidence by Mr Bassett and Mr Camilleri as well as a number of informal discussions about the need to improve his performance and conduct. 18 I accept Ms Brus' submission that Mr Camilleri's expressed concern about the impact of Mr Ellis-Richards' non-performance having a serious impact on the business was the major factor in the termination of the applicant's employment. I also accept her submissions that Mr Ellis-Richards did not recognise the problems that did exist, in spite of the fact that they were drawn to his attention. This attitude was reflected in his evidence before the Commission. 19 Further, I accept that the issue of the break-in and robbery of the respondent's premises was coincidental to the timing of the dismissal, occurring on the weekend when Mr Bassett and Mr Camilleri were travelling interstate. They had already decided that they would dismiss Mr Ellis-Richards because of on-going problems with his work, prior to hearing the report of the break-in, and definitely prior to hearing about the anonymous phone call during which Mr Ellis-Richards was named as being involved in it. They implemented their decision on the first available opportunity, when Mr Ellis-Richards returned from sick leave. 20 I note that Mr Ellis-Richards was paid his statutory entitlements on dismissal, including a week's pay in lieu of notice. It was inappropriate for Mr Bassett to refuse to provide Mr Ellis-Richards with a Separation Certificate when he requested it, but such refusal does not in itself cause me to find any unfairness in the dismissal. 21 In summary, I accept that the dismissal was not harsh, unreasonable or unjust. The application is dismissed. 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.