T7518
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Craig Maxwell Ritch and Lactos Pty Ltd
Industrial dispute - alleged unfair dismissal - application dismissed REASONS FOR DECISION This application was lodged by Craig Maxwell Ritch on 12 February 1998, seeking a hearing in relation to an industrial dispute re the termination of his employment by Lactos Pty Ltd. The matter was listed for hearing at Burnie Civic Centre on 19 March 1998. Mr Flood of the Tasmanian Chamber and Industry appearing for Lactos Pty Ltd (the Employer), at the outset of the proceedings, submitted that the applicant had not satisfied the time requirements of the Industrial Relations Act 1984 (the Act) in lodging the application and that I should dismiss it on that basis. Mr Flood referred me to section 29(1)(1B) of the Act which reads:- "An application for a hearing before a Commissioner in respect of an industrial dispute relating to termination of employment is to be made within 14 days of the date of termination or within any further period the Commissioner considers appropriate in the circumstances". After hearing preliminary submissions on this issue I made the following statement on the record; "Gentlemen, I am in a rather difficult position in that I haven't had the opportunity obviously to study the various decisions that have been referred to today, I've only had the benefit of brief quotes or a summation of the outcome of those decisions. And on that basis I think I would refrain from giving any reasons today about the decision that I'm going to give you but it is my intention at this time to grant the extension of time to allow this matter to proceed and if Mr. Flood, you have some concerns about that then I would be quite happy at a later date, perhaps at the same time as writing a merit decision to address the extension of time argument and give my reasons so that if you wish you may also consider an appeal on that ground at that time if that's necessary." 1 On 3 April 1998 I received the following correspondence:- "1 April 1998 Commissioner King Dear Commissioner, Re: T7518/98 - Craig Ritch and Lactos At the hearing of the above matter on 19 March 1998 you invited me to request you to include in your written orders your reasons for granting an extension of time to the applicant. I am writing to notify you that I request that you do so. Yours faithfully, I consequently give my reasons for granting the applicant the extension of time in lodging his application and thus proceeding to a merit argument. The Employee was terminated on 9 January, following an incident on 7 January 1998. He signed and lodged an application with the Registrar on 12 February 1998 some thirty four days after his termination. At the outset I acknowledge the intent of section 29(1)(1B) of the Act, that there is a very clear onus on any applicant to lodge an unfair dismissal claim within a defined time period. A requirement I support for obvious reasons. However the Act, clearly allows the discretion of the Commission to be exercised given appropriate circumstances. In determining what are the appropriate circumstances I was referred to a number of decisions which both sides believed supported their respective positions. Mr Flood submitted that I should accept the principles detailed by the President in T6563 of 1996. It was his submission that if I did so, I must dismiss the application on the basis of it being out of time. The principles relied on by the President in T6563 of 1996 and accepted by me as the appropriate test in this case, are found in a decision of Wilcox J. in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349 and are as follows:- "1. Special circumstances are not necessary but the (tribunal) must be positively satisfied that the prescribed period should be expended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position is relevant to the exercise of the (tribunal's) discretion." Before going to the above principles it is also important to consider the intent of section 29(1)(1B) of the Act and the critical words are "or within any further period the Commissioner considers appropriate in the circumstances." Those words do not support the contention of Mr Flood "that there are extraordinary reasons why the extension should be granted."2 Neither does the wording in principle (1) above support the contention that "extraordinary reasons" are required. The key words in that principle are that,- "there is an acceptable explanation of the delay which makes it equitable to so extend" Mr Dilger (of Counsel) for Mr Ritch (the Employee) in addressing this principle submitted that, "Mr Ritch did not sit on his hands, he continually rang his Union and asked them as to what was doing. They always told him, look, we're onto it, we will get your job back, we're doing something".3 This submission was later supported by evidence from the Employee as follows:-
In a unionised work force such as at Lactos the Employee has every right to believe his union official is attending to his concerns, (serious as they were) and doing all things necessary to protect his interests. It would appear that in this case his interests were not given the priority they should have been by the Union or that there was some reason for the Union not lodging an application with the Registrar. In either case the Employee was advised on contacting his union on a number of occasions that things were under control and from his evidence the Union did not offer him any other advice or return his phone calls. I believe the above scenario provides me with sufficient grounds to grant the application for an extension of time. However, I have given appropriate consideration to the remaining principles. I have some concerns in relation to Principle 3 because the Employer, given the efflux of time, has replaced the Employee. However, this scenario is often an issue in dismissal cases and on balance does not provide me with grounds to reject the Employee's claim in this case. For the above reasons I confirm my decision of 19 March 1998, to grant the Employee an extension of time in lodging his application. The evidence of the Employee in this matter is that he had been an employee of Lactos Pty Ltd from late 1982 until his dismissal on 9 January 1998. He was a casual employee for the first four years and a full time permanent employee for the remainder. During that period of service he had received one written warning dated 25 March 1997.5 The correspondence reads as follows:-
From the evidence it appears that the Employer's initial action was to demote the Employee, take him off shift work and transfer him to another work area, for his part in the above incident. However, following intervention of the Union the Employee was re-instated to his former position and he was sent the written warning detailed above. I will come back to this warning later. On the afternoon or night shift of the day before his dismissal the Employee when going for his tea break noticed a peacock in the precincts of the factory. He proceeded to catch the peacock to remove it from the premises. On taking the peacock to his car the owner of the bird came over, retrieved it and told the Employee that everything was OK he had the permission of the Company for the bird to be on its premises. The Employee returned to his shift and in doing so went through the procedure of washing his hands, put on a hair net and gloves and a full front apron. The Employee also wore gum boots on the shift but it is not clear from the evidence whether he had kept them on while on his tea break or not. On turning up for work at four o'clock the next day (8 January 1998) the Employee was told to go home and come back at eight o'clock the next day. In being sent home he was told by Mrs Barnett the Personnel Manager, "that we wished to interview some of the other employees on that shift and that we would suspend him with pay for that night while we discovered what the facts were and then asked if he could come back the following morning and we would then advise him" 6 When the Employee returned to work at eight o'clock the next day he was dismissed. The Employee's evidence was that the Employer wasn't prepared to listen to his side of the story. When asked by his lawyer why he thought he had been dismissed he responded; "I presume it was a good excuse to get rid of another permanent employee when casuals were wanted in that area as it was a seasonal area."7 The Employer in this matter relies on the fact that the Employee was given a first and final warning following an incident in March 1997 when it is alleged the Employee contravened safety and hygiene standards. As the incident with the peacock on 7 January 1998, in the view of the Employer, constituted another serious breach of hygiene protocol by the Employee the Employer after consideration of the facts dismissed the Employee. The first and final warning is recorded earlier in this decision. From the evidence in this matter the warning followed an incident where the Employee was invited to and did go to an area of the complex where he and other employees observed an employee riding a motor scooter. This incident occurred during a tea break and was short lived through the intervention of a supervisor who instructed all employees to return to work. The next day the Employee was counselled for his part in the incident and ultimately sent the first and final warning. The Employee did not ride the scooter, he was an observer as someone else rode it, he was standing in a walk way near the cream cheese plant. It was an area that he had to go to from time to time in performing his normal functions. The warning letter indicates that safety and hygiene issues were raised by the action of the Employee. However, there was no evidence that the Employee did anything that was unsafe or for that matter do anything that contravened hygiene rules. As there was no evidence to the contrary I must assume that on the Employees return to the work place he was not late and that he went through normal hygiene processes. There was no evidence of a notice in the area in question indicating that private vehicles were not allowed and the Employee's evidence was that some private vehicles do enter the area. While the Employee should not normally be in the area in question during a tea break I was not shown any documentation or referred to any direction about the workplace which prohibited the Employee from being there in his own time. Having regard for all of the evidence before me it is my conclusion that a first and final warning to the Employee in the context of his part in the incident is somewhat harsh in the circumstances. However, the Employee should as a result of that warning have had no doubt about the attitude of the Company to breaches of hygiene practices and regulations. In relation to the peacock incident the Employee freely admits that he caught the bird and took it to his car via a ramp to the canteen where he showed it to another employee. After the owner claimed the peacock the Employee returned to work and as described earlier went through the normal hygiene process that follows any tea or "smoko" break. In evidence before me he maintained that he caught the bird with the intention of taking it to the R.S.P.C.A. or to a nearby park. He removed it because he thought it shouldn't be there and that it had escaped from somewhere. In cross examination by Mr Flood he indicated he did not see the peacock as a hygiene threat and that was not his reason for removing it from the factory. Part of his responses on this issue are as follows:-
However, the evidence of Mrs C Barnett the Personnel Manager who was one of the Company representatives who spoke to the Employee maintained that at that interview the Employee indicated that he removed the peacock from the factory grounds because of the hygiene risks the bird represented. Part of that relevant evidence going to the discussion with the Employee is a follows:-
and later:-
The evidence of another employee Mr Chris Murphett who was also on shift at the time of the incident was that the Employee was going to catch the bird to take it home to the kids. Mr Murphett was with the Employee as he left the work place to go to the "smoko" room and saw the Employee with the bird after he had captured it. His evidence was that no other reason was advanced at that time by the Employee as to why he was going to catch the peacock. My assessment of the evidence in this matter is that the Employee when questioned by management after the event did give the reason of hygiene risks for removing the bird from the factory precincts. What caused him to change his story by the time he gave evidence in this matter is not clear to me. Considerable evidence including documentation 11 was given by the Employee going to a serious contamination problem at the plant in November/December 1995. I do not intend to detail or summarise the evidence other than to say the Employee was himself badly infected at the time resulting in him having time off work. His allegation was that the Company condoned significant hygiene breaches by allowing employees with open sores to continue working in circumstances proscribed by public health regulations. The Human Resources Manager's response to those allegations is recorded as follows:- "Mr Flood X.N.
The Employee also gave evidence, generally unsubstantiated, that Supervisors at the plant did not observe hygiene protocols and that there was one set of rules for "employees" and another for "management". This is a serious allegation. There cannot be rules on such matters as hygiene for one group of employees and not another. If there are problems in this respect at the Company they should be addressed as a matter of urgency. From the evidence in this case I am satisfied that the Employee understood the importance of hygiene to the successful operation of the Company. He was provided with significant training which included segments on hygiene. The infection problems in late 1995 were well known to the Employee and he was issued with the first and final warning in March 1997, which again in part related to hygiene issues. In spite of this knowledge and background he returned to the work place in clothing that he had been wearing while handling the peacock. He was dismissed for this action. A severe penalty, however it was imposed in the context of the Company's recent history of significant problems with infections and the obvious importance of strict on going hygiene controls to protect consumers of their products both locally and Overseas. Whilst I have reservations about some aspects of this case ie. the justification of the first and final warning I am not prepared on the evidence to make a finding of unfair dismissal. The application is therefore dismissed and I so order,
J G King Appearances: Date and place of hearing: 1 transcript page 16 |