TASMANIAN INDUSTRIAL COMMISSION

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

The Australian Workers' Union
Tasmania Branch
(T.4346 of 1993)

and

Tasmaid Foods Pty Ltd

Termination of employment - dismissal - alleged harsh, unfair or unjust - the Commission not satisfied that the onus of proving the employer had acted unfairly, harshly, unjustly or oppressively - application dismissed

REASONS FOR DECISION

This matter concerns an application by The Australian Workers' Union, Tasmania Branch, (the AWU) for a hearing to settle an industrial dispute pursuant to Section 29 of the Industrial Relations Act, 1984.

The dispute was between the AWU and Tasmaid Foods Pty Limited (Tasmaid) in relation to the alleged unfair dismissal of an employee. The AWU sought reinstatement of its member. "Tasmaid", which is a significant processor of milk and cream products in Tasmania, denied that it had acted unfairly, but rather it had counselled and warned Mr Russell Martin over a period of 18 months concerning his work performance and finally had no option but to dismiss him for incompetence.

Following initial enquiries the Commission concluded that the scope for conciliation had been exhausted and the parties were then invited to present evidence and submissions in support of their respective positions.

The basic facts of the case were that Mr Martin commenced employment with "Tasmaid" approximately five (5) years ago and at the time of his dismissal on 19 April 1993 he was classified as a pasteuriser (level 5).

• On 26 October 1991 Mr Martin failed to ensure that the automatic cleaning of the loop line on the mezzanine floor was completed and was given a verbal warning.

• On 22 November 1991 a similar incident occurred when Mr Martin failed to check if the CIP loop on the mezzanine floor was connected properly and if the cleaning cycle was operating correctly.

A written warning was issued in relation to this incident in the following terms:

"This is to confirm discussions between yourself and Management on Friday, November 22, 1991 concerning an incident on Thursday, November 21, when you were cleaning the loop line on the mezzanine floor and FAILED to connect an elbow at the key piece adjacent to Vats 5 and 6. As a result the line was not cleaned. Also your failure to observe the cleaning procedure meant the problem was not discovered until the following day.

This failure to observe the cleaning procedure is of great concern to this Company particularly as you received a verbal warning for a similar incident less than one month ago.

The lack of attention is unacceptable to Tasmaid Foods. You are therefore warned that any future incidents of this nature will result in more severe disciplinary action being taken."

• A further written warning was issued on 25 March 1992 in relation to another incident. That warning was as follows:

"This is to confirm discussions between yourself and management on 21st March 1992 concerning a situation on Thursday, 19th March 1992, when you left the site at approximately 2.00pm leaving the CIP connected to the raw milk vat. The vat being washed was left in an unfinished and potentially dangerous condition, whereby the product going into the vat could easily have been contaminated by caustic cleaning solution.

The CIP pump was found running at 4.45 pm that afternoon and stopped by management. The condition described above was noted the following day in your absence.

This situation is of great concern to this company especially so in that you have received several warnings in the past, the latest written only four months ago, outlining our concern at your failure to observe the correct cleaning procedure and apparent inattention regarding your normal duties.

This situation is completely unacceptable to Tasmaid Foods and as a result you are hereby given notice that if there is a recurrence of a similar nature your employment with this Company may be terminated."

• On 26 May 1992 an incident occurred on the mezzanine floor when milk lines were wrongly connected resulting in "Form milk" coming down the "White milk" line and visa versa.

  Laboratory checks detected the problem by which time 135 crates of "Form" and 25 crates of "white" milk had already been produced.

  Following this incident Mr Martin was counselled and warned by his Production Superintendent that if these mistakes continued "he was placing his job in jeopardy."

• On 19 January 1993 2,000 litres were lost from an open valve down a drain and this quantity of sales could not be filled for that day. Mr Martin was again counselled by management concerning this incident.

• On 31 March Mr Martin was requested to obtain pasteurised skim milk to standardise other out of specification flavoured products but used carry-over pasteurised skim milk which had been mixed with unpasteurised permeate.

  As a consequence the product had to be withdrawn from stock after being delivered to all three depots and dumped because if it had been released to the public the level of contamination was such that it could have been dangerous to human health. Again Mr Martin was counselled over this incident.

• On 1 April 1993 homogenised cream was pumped to the packaging vat without being released by the laboratory when Mr Martin was on duty. The process which followed using the sterile packaging vat was said to increase the risk of post pasteurisation contamination. Mr Martin was once more counselled.

• On 19 April a number of errors were made with the flavoured products. This required additional manual standardisation to be performed in the pasteurised products vats, resulting in increased possibility of contamination.

Witnesses were called by the union to support its contention that Mr Martin was a competent and willing employee who deserved another chance if given further training.

The evidence of the AWU witnesses was that mitigating circumstances applied in relation to each of the incidences and that some mistakes made are inevitable at such a complex plant and Mr Martin was no worse than anyone else in this regard.

The AWU argued that Tasmaid demanded that employees exercise initiative at all times but now wanted to unfairly punish Mr Martin for his errors.

Tasmaid argued that Mr Martin occupied an important position, a "pasteuriser" and had been so classified for approximately four (4) years.

Witnesses produced by the employer testified that Mr Martin suffered unexplained lapses of concentration and had been extensively counselled and repeatedly warned.

They said the mistakes make by Mr Martin were clearly avoidable.

Mr Martin himself conceded under cross examination that his lapses could be categorised as "just an oversight", a "basic mistake", or "just carelessness".

Nothing which was put to the Commission over the two days of hearing established that Mr Martin acted other than with proper motives, or to perform his duties other than conscientiously. It was also established that this man was punctual and regular in his attendances. He also presented as a truthful person who was generally cooperative with management.

No doubt production pressures and idiosyncrasies of the plant, together with day to day distractions can contribute to slip-ups by any employee if concentration is allowed to lapse. And these types of situations played their part to varying degrees so far as Mr Martin was concerned.

But Tasmaid correctly points out that it produces milk and cream products for human consumption and is entitled to insist upon a high standard of cleanliness at all times. This plant must also conform to other legislative standards in relation to product description and employees must comply with this exactness.

Reference was made by Mr Clues for Tasmaid to eight principles which were enunciated in Western Suburbs District Ambulance Committee V Tipping (1957); Australian Law Guide, 56 A.R. 273.

In that matter McKean J set out what he regarded as the general principles that ought to guide? the Commission in dismissal cases. The eight principles which his Honour extracted from the numerous previous cases that had come before the Commissioner were:

1. jurisdiction to award the reinstatement of a dismissed employee is vested in the Commission by the Act, but the exercise of the power to intervene is discretionary;

2. it is the right of an employer to choose his own employees; he has an undoubted right to dismiss or retain an employee in his employment; subject to the provisions of an award, his right to do so is clear; his right of dismissal is as fundamental in the relationship of employer and employee as is the right of an employee to leave his employment;

3. to deprive an employer of his right to choose his own employees is a serious matter;

4. an application for reinstatement is not an appeal from the action of an employer - no such right is conferred by the Act - that is a cardinal or fundamental proposition;

5. the onus is on the applicant to establish that intervention is warranted - he must discharge the onus which rests on him of satisfying the Commission that his is a proper case for the Commission's intervention;

6. it is not the province of the Commission to take over the functions of the employer in relation to the selection and retention of employees; it is not for the Commission to say whether, if it had sole control of the business, it would have dismissed the employee in the circumstances; it is not for the Commission simply to substitute its own opinion for that of the employer in the selection or retention of his employees - that, also, is a cardinal or fundamental proposition - the mere fact that the Commission might disagree as to propriety of any particular dismissal by an employer is not in itself sufficient to justify intervention on the part of the Commission;

7. an order for reinstatement will only be made in exceptional circumstances, and only if a strong case is made justifying the exercise by this Commission of its overriding powers to compel an employer to do that which the Commissioner regards as right and just under all the circumstances; the Commission will intervene only where its intervention is necessary to protect an employee against an unjust or unfair exercise of the employer's right of dismissal; in that respect, it is the Commission's function to inquire whether the employer's action is harsh or unjust towards the employee - in other words, whether the employer has abused his rights to dismiss the employee - the proper test to be applied is: has there been or has there not been oppression, injustice or unfair dealing on the part of the employer towards the employee? In exercising the right to dismiss, has the employer acted "unfairly, harshly, unjustly or oppressively?";

8. where an order of reinstatement is in issue each case must in large measure be decided and, indeed, turn upon its own particular facts.

It is significant that the Tasmanian Act provides for the settlement of any industrial disputes, and industrial dispute is defined as:

"Industrial dispute" means a dispute relating to an industrial matter, and includes a dispute relating to:

(a) the engagement, dismissal, or reinstatement of any particular employee or class of employees;

(b) the entering into, execution, or termination of any contract for services in circumstances that affect, or may affect, an employee in, or in relation to, his work; or

(c) any question relating to the demarcation of functions of employees or classes of employees - but does not include a dispute relating to any matter arising from a registered enterprise agreement if that agreement includes a grievance procedure which provides for private arbitration;"

However whilst the Commission can clearly deal with disputes concerning the dismissal or reinstatement of employees the Act does not provide an automatic right of review as if the Commission was an administrative reviewer of executive decisions. To this extent therefore I accept the relevance of the general principles to apply as enunciated by McKean J in the Tipping Case.

More particularly I accept that the applicant in this matter has an onus of proving that the employer concerned has in some way abused the right of management to dismiss an employee.

The AWU argued strenuously enough that the mistakes made by Mr Martin could be attributed to a range of factors such as a valve being difficult to turn off; an inability to cope with the early shift; nervousness; or other employees made mistakes; and so on.

It is not so much for me to sit in judgement of the severity or otherwise of each of the many admitted mistakes upon the operations of "Tasmaid", but to consider whether there has been oppression, injustice or unfair dealing on the part of the employer towards the employee.

On the evidence and other material before me I cannot be satisfied that the onus of proving that the employer has acted unfairly, harshly, unjustly or oppressively has been discharged.

Accordingly the application is dismissed.

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr G Cooper for the Australian Workers' Union, Tasmania Branch
Mr S Clues for the Tasmanian Confederation of Industries on behalf of Tasmaid Foods Pty Ltd

Date and Place of Hearing:
1993
Hobart
May 3
May 5