IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This notification of an industrial dispute was filed by the Federated Miscellaneous Workers Union on 2 November 1987.

Relief sought by the applicant was reinstatement of two female cleaners who had been dismissed by their employer, Crouchers Pty. Ltd. The alleged reason for the dismissals was that the work performed by the two employees was not up to standard. No allegations of misconduct were levelled at the two persons in question.

Evidence led by the union disclosed, among other things, that each of the dismissed employees had approximately 10 years' experience working for contract cleaners - the last 7 to 8 having been worked for consecutive contractors engaged to clean some of the Anglesea Barracks buildings. Each had had approximately 2 ½ years' service with the current contractor when given one week's notice of termination on 16 October. It was claimed that neither had ever had their personal performances questioned in their 10 years' experience working for contract cleaners.

However, it was admitted that during the last 12 months or so there had been a number of occasions when army and civilian personnel attached to "A Block" at the Barracks (this being the area where the two employees worked at the time of their dismissal) had complained about the standard of cleaning. These complaints had been either taken up with the contractor personally, or through his on-site representatives.

A Block is a two-storey administrative building said to be in excess of 150 years old. It has a floor area of approximately 150 square metres. Although its external appearance is quite handsome, any reasonable person would agree the internal arrangement leaves a lot to be desired. Among other things it is subject to rising dam, dry rot and peeling paint work. The floors are covered with either ill-fitting carpet tiles or carpet exhibiting signs of wear. My own impression was that the inside of the building was run-down, somewhat cluttered, untidy and dirty. It was said that there are 18 internal rooms on the upper level. I was not informed on the number on the lower level. I am unsure if the 18 rooms on the upper level includes internal toilets.

Not all of the rooms are open for cleaning at night. This means that there could be more than one day's accumulation of dust and paper when eventually made accessible to cleaning staff.

The two cleaners concerned were, at the time of their dismissal, allocated 2 ½ hours per day in which to vacuum carpets using back-pack vacuum cleaners, empty waste-paper baskets and replace liners, wipe down desks, clean and disinfect telephones, clean venetian blinds, vacuum the halls and clean internal glass partitions. In addition, two external toilets had to be cleaned during the same 2 1/1 hours' time frame. The female toilet was not inspected, but the male toilet consists of two W.C. cubicles, urinal, wash area and a separate shower. I was informed that basically the female toilet involved the same amount of cleaning.

Louvre windows and mirrors in both toilets also had to be cleaned. It was said the windows had a thick coating of dust built up because of either wind or dust stirred up by helicopters which land in the adjacent area.

Six weeks prior to termination the two cleaners had been allocated to three other smaller buildings, but not the A Block external toilet. Prima facie it is little wonder that complaints began to arise in those circumstances.

To suggest that two persons working without incentive could satisfactorily clean four buildings in 2 ½ hours would, to any reasonable person, appear to be unreasonable. It is inevitable that, at best, only a cosmetic approach could be expected in the circumstances. This could hardly be blamed upon the individuals.

To add to everyone's difficulties, renovation work had been undertaken in A Block during the past year. The sandstone exterior was tidied up. The process created fine dust that permeated the entire building. This too was made worse by helicopters landing and taking off. In addition, painting renovations were carried out resulting in old paint rubbings having to be cleaned up from the floor. Later, computer equipment was installed. This necessitated sandstone walls being drilled and resulted in more dust and grime entering the building.

The Commission was informed that cleaning staff are not as a rule replaced during periods of leave. It was also given in evidence that equipment is unreliable and that on occasions the two cleaners have been forced to share the same vacuum cleaner; that once the hose on one cleaner kept falling out of the machine, and on another the hose was split and had to be repaired with Durex tape.

Invariably new stocks of material were not forthcoming for days on end. However, in reply it was argued that staff should order well in advance of requirements. To this response it was said that no matter how far ahead materials were ordered, delays still occurred for no apparent reason.

In this regard I found the two dismissed employees' evidence more credible than that of the Area Manager, Mr Whitfield, who did not impress as a witness. Nevertheless I must accept part of his evidence. In particular I accept his statement that staff were told, perhaps warned, that A Block cleaning was not of an acceptable standard. I also accept his statement that there were frequent complaints made to him about the cleaning standard, and that he warned or forewarned the two employees in question that there would be an inspection of the premises carried out one week later.

I do not accept that individuals were "warned to lift their personal performances". On the balance of probabilities I accept the alternative version that individuals were informed or otherwise made aware that if the standard of cleaning did not improve the contractor would be dismissed.

I accept Major Willmott's evidence regarding general dissatisfaction with the cleaning, but reject as unreasonable his suggestion that 5 hours per day was ample time in which to bring cleaning to a satisfactory standard. His analogy with what he personally, and what his fellow career soldiers may have been able to achieve when detailed to perform similar duties was, I think, irrelevant. One could imagine that a career soldier would have ample "incentive" to apply plenty of the colloquial "elbow grease" or "spit and polish" when on a detail of that kind. Failure to do so may well have resulted in more of the same.

This matter must be decided on what is or was right and fair with respect to female cleaners working without incentive. Moreover, with respect, I concur with His Honour Olsson J. in his observation in the Minchin and Gorman v. St. Jude's case (40 S.A.I.R. @ 116-17), namely that "employees are entitled to what [might] reasonably be described as `industrial fair play' and the expectation that they will not be dismissed except for good reason".

Stanley and Lee JJs. put the same proposition thus:

"In approaching its duty the Commission, at first instance, [is] required to determine whether there was a fair and reasonable explanation for the decision to dismiss which, viewed objectively, would be regarded by fair-minded persons as being a totally legitimate reason for the action taken."

(Hallett Brick Industries Ltd. V. Kenniwell
43 SAIR 477 at 488)

I propose to put the action of the employer to this test after first reviewing the perceived obligations of the employees concerned.

There can be no doubt that an employee has an obligation to obey any lawful instruction of his employer that is issued to the employee in relation to his or her employment. Failure to do so may result in justifiable dismissal.

There was no suggestion of misconduct on the part of the cleaners concerned. Mr. Abey said that they had failed to perform their duties to a satisfactory standard. But no one said where and how the two cleaners went wrong.

The inspection carried out on notice was said to have sealed their fate. But how? Mr. Whitfield said that he discovered dirt under or around the carpet. This may have been so. And if this was the case, why did he not confront the cleaners concerned and demand an explanation? The Commission was told that the vacuum cleaners were defective. More importantly, it was said by one cleaner in evidence that on the day the Commission inspected A Block there was in evidence a replacement machine which was not on issue to the dismissed personnel. Why?

Mr. Whitfield said he dismissed the two ladies simultaneously to save saying the same thing twice. Yet he also said he "warned each lady separately". Why? Each denied that she was warned. Both agree that they were informed that the contractor was required to improve the standard of cleaning of A Block or face certain consequences. However they stated that because of dirt, the age and conditions of the building, but more importantly the limited hours available in which to lift the standard, anything other than an all-out effort, regardless of hours, would be cosmetic.

It is not unreasonable to assume that if the fault lay with individuals who were not working hard enough or were too inexperienced to cope, they would have been told exactly what was expected of them. If not, why not? Bearing in mind that neither had ever been reprimanded for slackness or inefficiency by their last 3 employers, what went wrong in the instant case? Did they become suddenly complacent? Would they have adopted this complacent attitude in the light of a known inspection in one week? I tend to think this would not be the case. Was it possible that the employees were expected to put right all the perceived deficiencies in the same time allotted? Or did the fault mainly lie with the contractor in not allotting more time for a thorough job?

Just 300 minutes per day was available in which to vacuum so many rooms, 2 halls, empty rubbish bins, replace liners if supplied, clean and disinfect all telephones, clean internal and external male and female toilets, wipe over desks, clean venetian blinds and glass partitions including louvre windows in external toilets, wipe out showers and clean mirrors. In broad terms, working on floor area only, all of these tasks, regardless of the degree of difficulty - breakdowns, non-replacement of staff etc. - would have to be completed to specification on the basis of 50 square feet per minute (using imperial terms).

FINDING:

My difficulty in deciding this matter is two-fold. First I must accept that two experienced cleaners, having repeatedly been made aware that the client was dissatisfied with the standard of cleanliness of A Block, appeared unconcerned that if this situation continued the contractor and his staff could be terminated. After all, A Block and more recently the external toilets adjacent to the building were the exclusive responsibility of the two dismissed employees.

I accept most of the evidence of the two ladies concerned, but none the less believe that, rightly or wrongly, being experienced cleaners they should have realised that it was their work that was considered faulty.

Secondly, having come to this conclusion I must also indicate that in my opinion the employer, but more specifically the Supervisor and the Area Manager, must also be joined in this issue. It seems to me that the working supervisor, if that is his function, should have confronted each of the dismissed persons when complaints were received and demanded an explanation why whatever complained of was not being done to specification. There has been no accusation of slackness or laziness levelled at either of the ladies. Their jobs were forfeited because their performance was said to have been "inadequate". Although Mr. Whitfield, the Area Manager, elaborated somewhat on this when he indicated incomplete cleaning around the carpet edges and non-removal of carpet stains, the main complaint appears to have been dust. Yet there was a general acceptance that dust was a problem in A Block and the adjoining toilets.

No one confronted either cleaner and accused one or the other of not having cleaned or dusted. It follows that apart from the "trap" that was set when half of one chair was dusted off and observed over a number of days, no one suggested that dust accumulation was other than overnight settlement. However, even the two ex-employees agreed that because of the time allowed for cleaning A Block, shortcuts had to be taken.

It is true, as Mr. Abey stated, that a lay person would not be able to estimate, with complete precision, exactly how long it would or should take two experienced cleaners to carry out all tasks required by the contract. However, commonsense suggests that in the circumstances described, 2 ½ hours per person was not sufficient. If it was, as has been suggested, then why were the employees concerned not accused of laziness?

The feeling I gained was that the two ladies were less than satisfied with the support they received from the Area Manager, Mr. Whitfield, whose evidence I have already said did not impress. His apparent tardiness in supplying materials, allowing faulty machines to go unrepaired, failing to bring to the personal attention of the employees concerned specific complains made, to my mind leaves a great deal to be desired on the part of management practice and procedure. The same criticism could be levelled at the Supervisor.

In fact the evidence led and attitudes expressed during proceedings left me with the clear impression that insofar as these employees were concerned there was a very poor employer/employee relationship.

I consider it unreasonable to expect females to physically carry a vacuum cleaner on their backs while cleaning such large areas. Moreover, to expect two cleaners to share one machine when a breakdown occurs is a direct reflection on management. After all, any interruption to a strict cleaning routine must have an adverse effect on production and morale. I tend to conclude there was a demonstrable lack of supervision over an area so frequently made the subject of client complaint.

My own impression of the building consequent on the admitted cursory inspection was that it was untidy, dirty and cluttered. Any comparison with modern buildings would therefore be odious. Nevertheless I accept that employees were well aware that the client was dissatisfied with their best efforts. I also accept that fair warning was given that an inspection would take place one week after that advice was given. This was a quite proper approach and cannot be criticised. What is open to criticism, however, is why when the inspection took place (and in my opinion it should have been on completion of the last day's work) the cleaners were not in attendance to answer any of the charges laid against them.

A further matter of concern is the statement by Mrs. Marney that she wished to discuss the matter of A Block with Mr. Croucher himself, but was not allowed to do so. Bearing in mind that this request was made before dismissals took place, it was reasonable to assume that Mrs. Marney was sufficiently concerned at what was going on to express the wish to personally raise the matter with her employer. She made it clear her motivation was concern that the required standard could not be maintained, given all of the circumstances. Those circumstances included renovations, lack of staff replacements, lack of equipment, locked offices, overnight dust-fall, and of course inadequate time allocation.

That request was not consistent with the action of an unsuitable employee. Nevertheless her request was refused.

The Area Manager's admitted statement to the client representative that he had "solved the problem for him" was somewhat cavalier and, I think, unfair. This was, I feel, exacerbated further when on dismissing the employees whom he considered were "the problem", he thereupon altered the cleaning time from evening to morning. This meant that thereafter there would be no overnight dust settlement before work commenced.

A fairer approach would have been to have offered morning cleaning to the two ladies concerned. As it is the Commission will never know if, in those circumstances, complaints would have diminished, ceased or continued, as dust seemed to be the main concern.

I accept the majority of Major Willmott's evidence as objective and fair. However, I tend to believe that an Army Officer, well versed and experienced in the best military tradition of smart presentation of men and equipment, was evidence from a source not representative of the average client. Nevertheless it is acknowledged that in the instant case the client was the army, and in that circumstance the client was perfectly entitled to demand that the contract be adhered to in accordance with the specifications.

It follows that I must, reluctantly perhaps, find in favour of the employer. And I do so only because the employees, if not warned about their personal performance, were certainly made aware that their best efforts were not acceptable to the client. Be that as it may, I accept all of the reasons given by the ladies concerned.

A great deal of the fault must therefore lie with supervision, if I am to believe Mr. Whitfield, when he said: "If anybody bothered to look around some of the edges or under some of the furniture where a vacuum cleaner can quite easily be put, they'll find a lot of dirt and dust, and that is not acceptable". This begs the obvious question whether supervision was lax. But the employees have paid the ultimate penalty,

However, having been given a final week's warning of an impending inspection, I think it was open to the ladies to then protest that they could not do the job in time. I also believe they should have been present during the inspection to either defend themselves or admit to the alleged inadequacies.

For all the foregoing reasons I am unable to order reinstatement. However I am of the opinion that the employer is guilty in part of unfairness. I therefore recommend that both employees be re-employed or offered employment as soon as vacancies exist.

In the alternative I am prepared to consider any claim for termination payment if arrangements along those lines have not already been made. Prima facie both employees have had an unblemished employment record with successive cleaning contractors. Their terminations in the circumstances have not been for misconduct, but are none the less in accordance with the award requirement regarding notice.

I have some residual reservations that there was "good reason" for the terminations, being mindful of the fact that the contractor was himself under great pressure to perform.

On balance, I have decided to give the employer the benefit of the doubt that the two employees were, in fact, not sacrificial lambs who were dismissed as a gesture to the client.

However, if he is a caring employer he will re-employ the two ladies when next vacancies arise. If, in those circumstances, a reasonable offer of employment is refused, that is the end of the matter. Naturally termination payments do not arise if re-employment is offered.

These proceedings may be re-opened in the event the parties are unable to reach some amicable agreement regarding future re-employment, in which case I am prepared to further consider the matter.

L. A. Koerbin
PRESIDENT