T6945
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TASMANIAN INDUSTRIAL COMMISSION Decision Appealed - See T8013 and T8004 Industrial Relations Act 1984 Philip Tony Patterson and Betta Milk Co-op.
Industrial dispute - termination of employment - representation by a legal practitioner - failure to prosecute - abandonment of employment - unfair dismissal - compensation considered - Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 1994 applied - six weeks pay ordered - payable by 1.10.98 REASONS FOR DECISION This application was lodged by Philip Tony Patterson pursuant to section 29(1A) of the Industrial Relations Act 1984, seeking a hearing in relation to a dispute with Betta Milk Co-op, trading as Betta Milk, re the termination of his employment. At the commencement of proceedings Mr Cameron, for the employer, opposed the application by Mr Harper, a legal practitioner, for leave of the Commission to appear on behalf of the applicant. He submitted that industrial tribunals had been loath to allow legal representation unless it could be demonstrated that special circumstances existed or if points of law might arise which required the services of legal counsel. In support of that contention Mr Cameron referred the Commission to the Bank Officials (Federal) (1963) Award decision by Deputy President MacBean of the Australian Industrial Relations Commission, dated 23 November 1989, and quoted from the submissions by counsel for the Australian Bank Employees Union in that matter which opposed legal representation for the respondent and for the non respondent banks. He also tendered an excerpt at paragraph 276 of the Australian Industrial Law Reporter of a decision by Williams C of the Victorian Industrial Relations Commission of 27 June 19891. Commissioner Williams "refused leave to the respondent to be legally represented because he had not been sufficiently convinced that there was a significant legal argument to be made". The report notes the Commission recorded further that, the company's representatives were experienced lay advocates. The report also notes that the Commission allowed the applicant to be assisted by a friend who was neither a legal practitioner nor a paid agent, "a gesture which apparently placed a strain on the Commission during the course of the hearing". Mr Cameron insisted that there were no complex legal arguments in the matter before the Commission as the employer's argument would be that there was a resignation by Mr Patterson, but that if it was found there was a termination at the initiative of the employer it was justified because Mr Patterson had repudiated his contract of employment or abandoned his employment. Mr Cameron argued that section 20 of the Act discourages legal form and technicality. He also submitted that alternative forms of representation were available through employee organisations and "lay practitioners". Mr Cameron referred to a decision of Commissioner Watling in Matter T4970 of 1994 which he said "upheld those principles". Mr Cameron maintained that there was no automatic right that leave be granted and that special circumstances should be present that justify the granting of leave. Mr Harper informed the Commission that he had been corresponding with Mr Cameron since 29 July 1997 when he informed him that he represented the applicant and there had been no mention of Mr Cameron's objection. Mr Harper submitted there were legal issues involved in determining whether the applicant had resigned or abandoned his employment. Mr Harper argued that the applicant would require an adjournment to seek alternative representation or prepare his own case as he was not in a position to proceed that day. To require the applicant to proceed unrepresented would be unfair, he said. Mr Cameron then submitted that the application should be struck out for want of prosecution. He said the matter was first listed for hearing on 18 June 1997. (It was in fact first listed for 25 May 1998.) Discussions took place prior to 18 June between the TCCI on behalf the employer, and the Transport Workers Union, apparently on behalf of the applicant, in an endeavour to achieve a resolution to the dispute. Correspondence was received from Mr Harper of Jennings Elliott dated 29 July and a meeting was held between those representatives on 7 October 1997. In correspondence dated 15 January 1998 the TCCI asked the Commission to dismiss the matter for want of prosecution. Mr Cameron submitted that the case of Burkett & James (1978) AC 297 (HL) supported his submission that the delay of 13 months had caused prejudice to the employer since the cost of reinstatement, if awarded, had become much higher, and a replacement employee had been appointed and paid for doing the work of the applicant. In addition, the ability to conduct a fair hearing was affected by the likely fading memories of witnesses. Mr Cameron claimed there was an abuse of the "industrial process" in this case which by "face to face relationship between the employer and the employee" might have been settled last year. He submitted that it was not in the public interest to have the process of conciliation and arbitration delayed through the inaction of the applicant. In response Mr Harper said when it became evident that the matter would most likely proceed to hearing the applicant sought legal aid. The application was signed on 17 October 1997 and a final decision was not made until 26 March 1998. Mr Harper said the witnesses he intended to call were still available, as were the witnesses to be called by the company. He submitted that the delay of 13 months would not be sufficient to affect the witnesses' memories to the extent that a fair hearing would be prejudiced. I consider that as a matter of general principle individuals appearing in the Commission, particularly by way of section 29(1A), are entitled to be represented by the person or organisation of their choice. The amendment to the Industrial Relations Act 1984, No. 59 of 1992, operative from 15 December 1992, which for the first time in this jurisdiction made the Commission accessible to individual employees, at the same time provided for the prospect that individuals might need representation, other than by a union or a "lay practitioner", by providing that a legal practitioner, with the leave of the Commission, could appear as an agent for a party to any proceedings. At the passage of that legislation the responsible Minister in his second reading speech emphasised that the legislation provided "freedom of choice". In the case particularly of individual employees and employers who are not members of a registered employee or employer organisation I think that is appropriate. However there could well be circumstances where, if the other party is not represented by a legal practitioner, the Commission might be of a mind to refuse leave in order to create a more even contest. Factors such as the complexity of the case, whether there are legal issues involved; whether there are witnesses to be called; the capacity of either party to represent themselves adequately also are matters of concern when determining leave. I am not satisfied that the cases referred to by Mr Cameron, with the exception of that decided by Watling C., have relevance in this jurisdiction, given the difference in the statutes which apply. As to the decision of Watling C. which involved an unrepresented applicant and an employer seeking to be represented by a legal practitioner, refusal to grant leave was made having regard to circumstances that I have mentioned above. In this case, contrary to the submissions of Mr Cameron, I considered it appropriate, having regard to the factors mentioned above, that the applicant, if he so wished, should be represented by a legal practitioner. For the above reasons which were not so fully conveyed to the parties during the hearing, Mr Harper was granted leave to appear for Mr Patterson. In respect of Mr Cameron's submission that the matter be struck out for want of prosecution, the Commission's record of correspondence in this matter is as follows: The matter was notified to the Commission on 1 May 1997; the applicant, having been contacted by my office, advised that the Transport Workers' Union of Australia, Tasmanian Branch, would be representing him. On 16 May 1997 the matter was listed for hearing on 18 June 1997. By letter dated 16 June 1997 Mr Patterson and the Branch Secretary of the TWU jointly sought a postponement of the hearing to enable Mr Patterson to seek legal advice "on other matters related to his employment and termination". On 16 June the hearing was postponed to a date to be fixed. On 30 October 1997 the applicant was informed that unless advice was received within 14 days as to his intentions the Commission would dismiss the application. On 3 November 1997 Mr Harper of Jennings Elliott advised the Commission that he acted for Mr Patterson and that from discussions with the employer it appeared that the matter could not be settled by agreement as there was "a difference in the evidence of both parties", and that it had "only recently become clear that the matter (would) need to proceed to a hearing". Mr Harper advised that he was waiting on the outcome of his client's legal aid application before organising a joint request for a hearing date at a time to be allocated. On 15 January 1998 Mr Cameron of the Tasmanian Chamber of Commerce and Industry Limited (the TCCI), on behalf of the employer, advised the Commission that the last contact from the applicant was on 7 October 1997 and requested that the matter be struck out for want of prosecution. On 18 February 1998 the applicant's solicitors were advised that the matter would be listed for hearing in approximately 6 weeks unless adequate reason for a further deferral was received. On 30 March 1998 the applicant's solicitor advised the Commission that the matter is "not able to be settled by negotiation" and requested the matter be listed as soon as possible. On 2 April 1998 the parties were notified that the matter was to be heard at Launceston on 25 May 1998. It is clear that the delay in proceeding with this matter could have been reduced if the applicant or his representative had pursued the matter with greater energy. However the longest period of apparent inaction is between late October 1997 and the end of March 1998 when, it seems, the legal aid people were deciding whether or not funds were to be provided to assist Mr Patterson. Although it borders on being unacceptable I accept that delay because the applicant needed legal representation, as advised by the Transport Workers Union, and the delay it would seem was not necessarily his fault. The remaining delays were the result of normal administrative arrangements associated with the availability of personnel and hearing rooms. In addition, having heard the witnesses, I am satisfied that their memories were not unduly affected by the passage of time, and I do not consider the employer will be unduly prejudiced by whatever decision the Commission arrives at in the matter. In the circumstances I accepted Mr Harper's submissions in mitigation and formed the view that it would be contrary to the provisions of section 20(1) (a) of the Act to dismiss the matter for want of prosecution. Mr Harper submitted that Mr Patterson's employment had been terminated by his employer summarily and he called Mr Patterson as a witness. Mr Patterson said he was employed full time as the Cool Room Attendant at Betta Milk, in control of two staff, and he was the relief manager. He had been a permanent employee for "just over two years"; prior to that he had been employed as a casual for "five or six months". His weekly pay just prior to his termination was about $390. On 18 April 1997, the day of his termination, Mr Patterson started work at 9.00 a.m. Business was normal; the employees had lunch before midday and then started unloading a semi trailer. Mr Wright, the sub contractor owner-driver of the semi trailer and Mr Patterson commenced their usual banter. It seems Mr Patterson had acquired a new set of teeth and the banter or "sledging" became personal, and Mr Wright was alleged to have said Mr Patterson "looked like Dracula - Chad Morgan". The banter continued for 10 to 15 minutes. Mr Patterson said he felt threatened physically at one stage when Mr Wright was "two inches" from his face. Mr Patterson said he asked the Manager, Mr Andrew Vodak, to intervene to stop what was happening as he thought there could have been a fight which would have resulted in instant dismissal. Mr Vodak took no action so he asked him again to do something about it. When nothing was done he said to Mr Vodak, "I don't have to put up with this, Andrew. I do have rights here."2 He said:
Mr Patterson said he was going to the "Department of Labour and Industry" (Workplace Standards Authority) to see what his rights were and at that stage he did not know where they were. He said it was just after 12.00 noon when he "walked out" and he was back in "44 minutes". When he was walking into the city he was picked up by Jeanette Robinson, a merchandiser with Betta Milk, and he asked her to take him to Redline Coaches (where he worked part time) as they would know where the "DLI" was. He said Mrs Robinson had replied "I don't blame you" when he described what had happened. On enquiring at Redline he was directed to the "DLI" offices where he was told to return to work and get a job description as that was necessary to work out what the next step was, and to come back after he knocked off at 4 p.m. On his return to work he asked to see Mr Vodak in his office. Mr Vodak told him he was not happy with him for failing to unload the semi trailer. He told Mr Vodak that he had been to the "DLI" to find out what his rights were and told him that he was intending to join "the union". Mr Vodak "got very abusive and used bad language", Mr Patterson said. Mr Vodak was alleged to have said, "If that's the way you feel, you can get out of this place now. You're sacked".4 He said Mr Vodak later asked him to come in to work on Monday to talk about it. Mr Patterson claimed he said there was no point to that and he handed in his work keys and said "goodbye to the guys". He said there had been a altercation some six or eight weeks previously when Mr Wright had been abusive and claimed that Mr Patterson was not pulling his weight in unloading the semi trailer. As Mr Patterson was acting manager that day, he told Mr Wright to finish the job himself. On that occasion Mr Vodak had called them into his office and told them to mend their ways. They shook hands and apologised to each other, he said. Mr Patterson said he had received one previous warning from Mr Vodak approximately 8 months before when he had failed to collect some empty crates from the supermarkets. When the termination occurred Mr Patterson asked Mr Vodak to arrange for his pay to be "in the bank" that night; which was done. A week later he received a letter informing him that he had been overpaid by $783. He was asked to pay back the overpayment but refused to do so as he had not received advice as to what the payment was for. In cross examination, Mr Patterson said it was normal to say to other employees "watch me stir him up" when Mr Wright arrived at the yard. He denied that he was abusive to Mr Wright immediately the truck arrived. He said the exchange with Mr Wright went on for about "12 minutes", not two minutes as put to him by Mr Cameron. He said the abuse occurred every time they passed each other while they were unloading the contents of the truck into the cool room. Mr Patterson denied he approached Mr Wright and abused him and said that Mr Wright was the one who had "become confrontational"5. Mr Patterson denied that he told Mrs Robinson that he had had enough at Betta Milk and had walked out. He also denied that he told Mrs Robinson that he was going to Redline Coaches to see if they had any more work. He denied that he told Mr Vodak that he had had enough and that he said "I'm finished". The following exchange took place between Mr Cameron and Mr Patterson:
Mr Patterson said he still "had not been given a reason but on (his) termination certificate it is for failing to do designated duties". Mr Patterson denied that he was "naturally aggressive at work" and "had another employee pinned up against the wall threatening him on another occasion".7 Mr Patterson denied that Mr Vodak had asked Mr Patterson to come back on Monday to remove some personal items from the premises. Mr Patterson acknowledged that he did not have permission to leave the workplace when he did. Mrs Robinson, a merchandiser and sales representative with Betta Milk at the time of the termination, saw Mr Patterson walking towards the city and decided to offer him a lift as she thought as he may have been going to pick up a vehicle. She said:
When asked whether Mr Patterson had said why he was going to Redline, Mrs Robinson replied:
Mrs Robinson said she could not remember saying that she did not blame Mr Patterson for walking out of Betta Milk. She said after dropping Mr Patterson at Redline Coaches she continued with her duties for the rest of the day and on her return to the depot she was informed that Mr Patterson's "position at Betta Milk had been terminated".10 She said she had a "fairly good rapport" with all her work mates and that she "got on very well" with Mr Patterson. In cross examination Mrs Robinson said she could not remember Mr Patterson saying anything about resigning, being terminated or about a disagreement with Mr Wright, nor could she remember whether Mr Patterson told her he was going to the Workplace Standards Authority (the WSA) to find out what his rights were. Mr Wright, a cartage contractor for Betta Milk, said he carted packaged milk from the Betta Milk depot in Burnie to the depot in Launceston. On his return to Burnie he picked up another trailer and distributed the product to Devonport, Ulverstone, Penguin and Wynyard. He delivered to Launceston on five days per week. He said that as he was backing into the depot on 18 April 1997, he noticed Mr Patterson had a new set of teeth and when he got out of the truck he said, "How are you going, Chad? And then things got a bit out of hand. He remarked back to me something about my work ethic." Mr Wright said it was hard to recollect specifically what was said but the "next minute" Mr Patterson made the comment "I don't have to put up with this any more", and walked off. Mr Wright said he disliked coming to Launceston knowing the "ridicule" he was going to get as soon as he opened the door. He said he had telephoned Mr Vodak "at one stage" before arriving in Launceston to have a meeting to discuss the problem and Mr Patterson had admitted he had gone too far and said he was going to "ease off". Mr Wright said he did for a few weeks. Mr Wright said he was "abusive back to Mr Patterson". He denied making any threatening gestures towards Mr Patterson. He said he was surprised when Mr Patterson walked out. He thought it was an over-reaction. He said his banter with the other employees was not as vindictive as his banter with Mr Patterson. He said Mr Patterson returned "a bit over an hour" later. He said the banter with Mr Patterson on 18 April went for 10 to 15 minutes. He said he was not intimidating or threatening towards Mr Patterson. In cross-examination Mr Wright said he thought the reason why he and Mr Patterson did not get on well together was because Mr Patterson "might have had a lack of respect" for him in the position he had with the company. He said Mr Patterson had no right to comment on or question his work performance unless he was the manager and there was a genuine reason. Mr Wright said he would not back down if he was being harassed. Mr Wright said he could not remember whether he put his face close to Mr Patterson's face and told him "he was just a boy around the place". Mr Reardon, a storeman with Betta Milk, said that after Mr Wright called Mr Patterson Chad, Mr Patterson said, "Watch this, I'll stir Wrightie right up", and "off they went on their merry way like normal, stirring each other up". Mr Vodak asked if they were serious and Mr Reardon replied, "No, they're only stirring each other up!". He said, "then they got a bit serious for a couple of seconds and the next minute (Mr Patterson) throws the trolley down and said, `I've had enough' and out he walked". Mr Reardon could not remember the conversation between Mr Patterson and Mr Wright; he said they "were just at each other". He did not see Mr Wright approach Mr Patterson. He said Mr Patterson and Mr Wright were the only ones to act personal although all employees and drivers got involved in general sledging and jokes. He said Mr Patterson was a good worker. Mr Reardon assumed that Mr Patterson was "not coming back at all".11 Mr Vodak, the Manager of the Betta Milk depot at Launceston, said the incident took place around midday; lunch had finished. He said the normal banter took place when the truck was being unloaded. Mr Patterson said to him, "I don't have to put up with this, do I?" Mr Vodak thought he was joking and "didn't bother answering him."12 When asked what happened next, Mr Vodak said:
When asked how he took that, Mr Vodak said:
Mr Vodak said he was caught by surprise; he did not think the banter was "particularly heated" at the time. He said Mr Wright was a very quiet person. Mr Vodak then made arrangements for other employees to work overtime to cover Mr Patterson's duties. Mr Patterson came back "over an hour" later and they had a discussion in which Mr Patterson asked whether Mr Vodak was going to sack him, and Mr Vodak said he responded by saying, "As far as I'm concerned you're already finished". He said he told Mr Patterson to come back in on Monday although he gave no reason for that. He said "thanks, Philip", but could not recall what, if anything, Mr Patterson had said in response. He told the Burnie Office, which does the pays, that Mr Patterson had "walked out ... resigned" and requested that Mr Patterson's pay be made up. He said he believed Mr Patterson received 3 weeks' pay. In cross examination Mr Vodak said he did not expect Mr Patterson to return to the depot; he was not sure how long Mr Patterson had been absent but he thought it was "a bit longer" than 45 minutes. He agreed that he hit his hand on the table when Mr Patterson told him he was intending to join a union, but said he was not angry until he "sat down and thought about what had happened". Mr Harper submitted that a decision by Parkinson JR in the Industrial Court of Australia VI 2434 of 1996, in Ipsa v. Westgate Medical Centre dealt with a situation where an employee left the workplace because of a hostile situation. He contended that a person leaving their employment under a hostile situation does not constitute an abandonment of employment or resignation. Mr Harper submitted that Mr Patterson's actions were a reaction to the verbal harassment in the workplace rather than to the workplace itself. He said the fact that Mr Patterson returned to the workplace after taking advice from the Workplace Standards Authority indicated that Mr Patterson had not intended to abandon his employment. Mr Harper submitted that Mr Patterson's employment was terminated by Mr Vodak on his return to the depot. Reinstatement was sought on behalf of Mr Patterson as he could readily return to the position. In relation to the possibility of compensation, Mr Harper asked the Commission to have regard to the fact that settlement negotiations were conducted around August 1997 and the applicant requested the matter be relisted on 30 March 1998. Mr Cameron maintained that Mr Patterson resigned his employment because he "wilfully left his place of work, without provocation, without ... anything being done by the employer". He said there was a "minor exchange of words" that came to "no physical confrontation between Mr Patterson and Mr Wright". He maintained that Mr Patterson "over-reacted" to a "fairly innocuous comment" about his physical appearance. There was no evidence, he said, from anyone other than Mr Patterson that there was any face-to-face confrontation with Mr Wright. Mr Cameron submitted there was nothing that justified Mr Patterson reacting in that way and that his decision to leave the workplace was on his own initiative. He opined that the reason he returned to work was that he changed his mind when he found he could not get another job. He submitted that once a resignation is tendered and accepted it cannot be withdrawn without the consent of the employer. It was submitted that the decision of Ryan JR in Cartmel v. Skilled Engineering Pty Ltd, IRCA 5 April 1995, was relevant as was a decision of Patch JR in Avery v. Air Design Pty IRCA 11 March 1996. Mr Cameron submitted that if the Commission was to conclude that the termination was at the initiative of the employer, that the employer was justified in terminating Mr Patterson's employment because he had left the employer's "premises without consent, not being in a designated break, not saying anything to anyone that he was going to do something else or what time he would be back".15 In that regard he relied on Laws v London Chronicle (Indicator Newspapers) Ltd 1 WLR 698. Findings The evidence of the majority of witnesses in this matter suggests to me that a pattern of behaviour had developed in the depot which led to its inevitable conclusion in the incident resulting in the "walk out" by Mr Patterson on 18 April 1997. It seems from the evidence that Mr Patterson was normally the instigator of the banter which accompanied the arrival, unloading and loading of Mr Wright's truck. Indeed Mr Patterson had been required to, and did, apologise for the manner in which he spoke to Mr Wright on a previous occasion. I accept Mr Reardon's evidence that on 18 April Mr Patterson intended to provoke Mr Wright, to "stir him up". I also note that in fact it was Mr Wright who made the first jibe in what was the daily ritual. However on this occasion, as Mr Vodak put it, "what started out as a joke didn't finish up as a joke"; and that "things turned around the other way". In the circumstances I consider that the Manager, Mr Vodak, should have been aware that something more serious than usual was taking place, even though he was told by Mr Reardon there was no need to worry. When Mr Patterson approached Mr Vodak for help it appears he took no notice. I consider that Mr Vodak should have approached either Mr Patterson or Mr Wright at that time to determine whether there was a need for him to intervene. Whether he decided not to intervene because Mr Patterson was getting the treatment he thought he deserved is not completely clear from the evidence, but what is clear is that Mr Patterson's request for the manager to intervene was ignored. Whilst I do not condone the behaviour of either Mr Patterson or Mr Wright, this incident would not have developed to the extent it did if Mr Vodak had exercised some managerial responsibility and called a halt to the banter at an early stage. Whether Mr Patterson feared that there might be a physical altercation or whether he was annoyed at the continual jibes about his new set of teeth is not clear, but he asked for help from his manager, got none and decided to leave the workplace. Although the evidence is somewhat conflicting on the point I think that Mr Patterson's version that he was confronted by Mr Wright and told that he was "only the boy around the place" provides the most likely description of what occurred. I have come to that view mainly because Mr Wright was unable to remember whether or not such a circumstance occurred and Mr Patterson was quite certain about what had taken place. Neither Mr Vodak nor Mr Reardon saw any confrontation, but they said they could not see Messrs Patterson and Wright all the time. Did Mr Patterson resign his employment? The evidence of those present when Mr Patterson walked out understandably produced some differences of opinion as to what Mr Patterson actually said. Mr Vodak recalled Mr Patterson saying "I'm finished"; Mr Reardon recalled him saying "I've had enough"; Mr Wright recalled him saying "I don't have to put up with this any more", and Mr Patterson claims he said "I don't have to put up with this, Andrew". I suspect and conclude it was the latter, as the evidence of Mr Reardon and Mr Wright more closely coincides with that of Mr Patterson than it does with the words remembered by Mr Vodak. I therefore find Mr Patterson did not deliberately resign his employment at that point. Was Mr Patterson's departure reasonable in the circumstances? His only alternatives, I think, were to remain at his work and not react; or to remove himself from the unloading operation for a short time to allow things to cool down. Clearly the circumstances had developed beyond the stage where the first alternative was a reasonable option. The second alternative was available and, with the benefit of hindsight, should have been adopted. However I have no doubt, despite the submissions of Mr Cameron, that there was more heat in the banter between Mr Patterson and Mr Wright than should have been tolerated by the manager. Mr Patterson could have been worried for his safety as well as for his job. If there had been a fight there is little doubt that Mr Patterson would have been dismissed anyway. As it happened he was ignored by Mr Vodak and I accept in those circumstances that it was reasonable for him to decide to leave the workplace. Did Mr Patterson leave the workplace to get advice about his rights, or to see if he could get more work at Redline Coaches? The evidence is conflicting on this point. Mrs Robinson said Mr Patterson was going to see if there "was any more work" at Redline Coaches. Mr Patterson denies that was the case as he knew there was no full time work available there and claims that he told Mrs Robinson that he was going to the "DLI" and that the Redline people would know where the "DLI" was. It is possible that Mr Patterson made both an enquiry about work at Redline and an enquiry about his rights at the WSA. Whether he did both is I think irrelevant, given my subsequent findings, although I am satisfied that Mr Patterson did visit the Workplace Standards Authority. What happened following Mr Patterson's trip to the city was that he returned to work after an absence of approximately 45 minutes to an hour and told Mr Vodak that he wanted a job description as he intended to join a union. I do not think such a request would be likely from an individual who had knowingly resigned, and I do not accept Mr Cameron's submission that the reason Mr Patterson returned was that he found he could not get extra work at Redline and wanted to recover his job at Betta Milk. Accordingly I am satisfied that Mr Patterson did not intend his "walk out" to be interpreted as his resignation. Was Mr Patterson's "walk out" sufficient to be regarded as the abandonment of his employment? There is no doubt that Mr Patterson's actions were extremely rash and in most other circumstances the Commission would not condone an employee leaving the workplace without permission. But I think there were mitigating circumstances in this case. I think Mr Patterson was frustrated and annoyed at having lost the war of words with Mr Wright and he was concerned that he might be involved in a fight with Mr Wright with the consequences that would flow from that. He was also frustrated by the lack of any response from Mr Vodak and decided he had to seek some other assistance. He should have been alert to the fact that he was leaving his colleagues short handed and placing his job in jeopardy. However I think that in the heat of the moment those oversights can be excused. In these circumstances I do not consider the "walk out" by Mr Patterson should be regarded as the abandonment of his employment. How was Mr Patterson's employment terminated? In essence, Mr Cameron submitted that if I found that Mr Patterson had not abandoned his employment there were other valid reasons for the employer to effect a dismissal. However it seems those reasons were not put to Mr Patterson. Mr Vodak thought Mr Patterson was not going to come back to work at all, and he was adamant that, in those circumstances, he had not dismissed Mr Patterson. Mr Vodak, therefore, did not give Mr Patterson an opportunity to explain why he had left the workplace. However, the fact that Mr Vodak did not notify the pay office of Mr Patterson's termination until well after Mr Patterson had returned from the city; that Mr Patterson was paid a week's notice, notwithstanding the submission by Mr Cameron that the payment was in error, and the reference on the separation certificate that termination was for failing to do designated duties, seem to point to the termination being at the initiative of the employer. I have already determined that in these exceptional circumstances the fact that Mr Patterson left the workplace to get help or advice should not be regarded as the abandonment of his employment. As Mr Patterson was not given the opportunity to explain why he had not carried out his designated duties he was denied procedural fairness at the time of his termination. Therefore his termination must be deemed to have been unfair. Mr Patterson claimed that he was sacked by Mr Vodak when he mentioned that he intended to join a union. Mr Vodak denied that was so. However given that the employer relied on the alternative proposition that Mr Patterson was dismissed because he failed to perform his duties, and in view of my finding in that respect, it is not necessary for me to come to a finding on this part of the applicant's claim. In the circumstances I do not consider the reason advanced by the employer in the alternative, and submitted by Mr Cameron at pages 85 and 86 of transcript, is a valid reason for terminating Mr Patterson's employment and accordingly I find that the dismissal of Mr Patterson was unfair. In doing so have considered the cases referred to by Mr Cameron in respect of a resignation in the heat of the moment and the use of unequivocal terms of resignation, and I am not satisfied that they relate to situations which are comparable with the matter before the Commission on this occasion. Nor do I consider the facts in this matter show an intention to repudiate the contract of employment as referred to in Laws & London Chronicle. I turn now to the issue of remedy. Given the date of the dismissal, and the response of the employer to reinstatement as an option, I am satisfied that it would be impractical to order that he be reinstated. As to the question of compensation, using the criteria established in Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 1994, I have come to the conclusion that it is unlikely that Mr Patterson would have remained employed by Betta Milk at Launceston for more than six weeks after the date on which he was dismissed. I have reached that conclusion because I consider that Mr Patterson's behaviour at the Betta Milk depot had reached the point where the patience of management was being tested, and a lawful and valid termination would have occurred within a relatively short period of time. Accordingly, I hereby order pursuant to section 31(1) of the Industrial Relations Act 1984 that Betta Milk Co-op, trading as Betta Milk, pay to Mr Philip Tony Patterson an amount equal to six weeks pay at the rate of $394.70 per week; such payment to be effected by 1 October 1998.
F D Westwood Appearances: Date and place of hearing: 1 P.J.Marks and Fire Protection Services Pty Ltd |