TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Federation of Industrial, Manufacturing and Engineering Employees,
Tasmania Branch
(T.4606 of 1993)

and

Tasmanian Electro Metallurgical Company Pty Ltd

Termination of employment - alleged harsh and unjust dismissal

REASONS FOR DECISION

This matter concerns an application by the Federation of Industrial, Manufacturing and Engineering Employees (FIMEE) for a hearing to settle an industrial dispute pursuant to the provisions of Section 29 of the Industrial Relations Act, 1984.

The dispute was with the Tasmanian Electro Metallurgical Company Pty Ltd (TEMCO) at Bell Bay and concerned the alleged harsh and unjust dismissal of an employee, a Miss Louise Davie.

Miss Davie was employed as a production operative. She commenced work on 20 February 1989 and was dismissed on 3 October 1993 with two weeks' pay in lieu of notice after she had ceased work early without permission on the preceding shift.

Miss Davie claimed that she had left the plant five (5) minutes early because there was nothing to do and she could not locate her supervisor in order to seek permission to leave.

However it was contended by the employer that Miss Davie in fact left the job at least twenty-five (25) minutes early after being previously counselled and given a series of warnings concerning a number of matters including:

(a)  workplace rehabilitation

(b)  absenteeism

(c)  showing disrespect to supervision

TEMCO also took issue with the assertion that there was insufficient work available and pointed out that there was a current dispute concerning union claims in relation to manning levels at the plant.

Miss Davie gave sworn evidence as to the circumstances which eventually led to the termination of her services on 3 October 1993. She said that on the previous shift she had telephoned a different section of the plant to contact another employee and also enquired as to whether her supervisor was in the locality at the same time because, if he was, she intended seeking permission to leave her shift early.

Miss Davie said she knew that her supervisor carried a "pager" but did not bother to utilise this facility because, in her view, it was not always reliable. Without obtaining permission she left the plant at 12.40 a.m. on 2 October in lieu of 12.45 a.m., i.e. five (5) minutes early.

The employer's record of employment showed that shift supervisor (L Cook) observed Miss Davie leaving the plant at 12.20 a.m. and not 12.40 a.m. as alleged.

As a consequence supervisor Cook interviewed Miss Davie at about 6.50 p.m. the following day and told her to remain in the crib room pending further action being taken in relation to the previous incident.

In response to a question by Mr Jones for TEMCO, Miss Davie admitted responding to Mr Cook in a heated manner and by twice using a strong expletive. The precise words used were somewhat fully described on the record and are better left on tape than given further prominence by being here repeated. Suffice is to say I find the expletive used by Miss Davie totally inappropriate to the occasion and the particular circumstances which existed at the relevant time.

Miss Davie further stated that following discussions involving management and union representatives she was dismissed and told that the reason for this action was that she "had left the job early (on 2 October) and on other occasions too", which she said was not true.

During subsequent evidence in chief as well as during cross-examination Miss Davie presented as an inconsistent and unreliable witness with frequent alleged memory lapses in relation to a series of important questions as to fact in relation to work absences, warnings given and related incidents.

It is accepted that no person can be expected to recall every detail of events or be precise as to peripheral matters such as times and dates and the like, and accordingly allowance should be made for these types of lapses. However, simple facts do not fall into the same category and ought to be remembered by any reliable and truthful person who is giving sworn testimony.

However, Miss Davie did freely admit to "a long and sordid history of absenteeism", as well as having a short temper.

TEMCO produced in evidence Miss Davie's attendance record and record of employment, with the latter having entries relating to a total of 24 entry dates on which adverse reports were made. These reports included a series of written warnings, including a final written warning relating to absenteeism given on 29 May 1993.

The attendance report contained entries covering more than three closely typed foolscap pages.

The FIMEE strenuously pleaded the case for Miss Davie to be given another chance to retain her employment. Mr Long argued that Miss Davie deserved such a chance and that allowance should be made for the fact that:

• Late in 1992 she was injured in a car accident and her health has suffered subsequently. This too could be the reason for her memory problem.

• This employee has many financial commitments to meet.

• She lives in an area where the unemployment level is particularly high and she is unlikely to be able to obtain other work.

I have given full consideration to all of the evidence, submissions and other material provided and it is my decision not to make any order or recommendation in favour of Miss Davie. My reasons in this regard are as follows:

• The applicant organisation has not been able to demonstrate that TEMCO acted capriciously or unfairly in its treatment of Miss Davie or that she was not afforded natural justice before her services were terminated.

• The evidence is that dismissal with pay in lieu of notice occurred not only because of a single instance of misconduct which occurred on 2 October last but also for a series of unacceptable and inappropriate acts which were inconsistent with the proper fulfilment of an employee's contractual obligations.

• In all of the circumstances it would be inappropriate for me to interfere with the decision of TEMCO to terminate because the employer has exercised a prerogative which properly exists.

It would only be appropriate for the Commission to intervene where that prerogative could be shown to have been abused in some material respect. However, this is not the case in this instance.

• Whilst I sympathise with the tragedy of job loss by any employee in these difficult times and understand the likely repercussive effects to Miss Davie given her personal circumstances, I was given no signs of any contrition or that a return to work would be on any improved basis than before.

• The employer's productivity and efficiency of operation is worthy of equal consideration to that of the employee in matters of this kind.

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr J Long for the Federation of Industrial, Manufacturing and Engineering Employees, Tasmania Branch
Mr G Jones and Mr L Cook for the Tasmanian Electro Metallurgical Company Pty Ltd

Date and Place of Hearing:
1993
Hobart
October 12