T7519
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers Union, Tasmania Branch and Betta Milk Co-op Society Ltd
Industrial dispute - termination of employment - application dismissed - file closed REASONS FOR DECISION This application was lodged on 13 February 1998 by the Australian Workers Union, Tasmania Branch, for a hearing in relation to an industrial dispute with the Betta Milk Co-op Society Ltd (the Company). The dispute is over the termination of the employment of a Mr Neville Wright (the Employee) on 11 February 1998. Mr Flanagan appearing for the Australian Workers Union, Tasmania Branch, advised the Commission that "the union is seeking the re-instatement of our member Mr Neville Wright without loss of pay."1 In outlining the background to this matter Mr Flanagan submitted that the Employee had received correspondence from the Company dated 12 February 19982 advising him that his employment was terminated on 11th February 1998, for neglect of duty in that he ignored audible and visual alarms when they had been activated. Mr Flanagan submitted that the dismissal lacked procedural fairness and there was substantive unfairness in the dismissal having regard for merit considerations. His submission in summarising these aspects is:- "Mr Flanagan: Now Mr Deputy President, it's the union's view that the company's move to terminate the employment of our member is unfair in both the substantive and procedural sense. We say that in a procedural sense it is unfair in that the employer has prejudiced - had prejudiced the matter prior to the employee being interviewed; in other words they had a predetermined view. We say that it was also a position where the employee was not given any real or genuine opportunity to answer the allegations of the company and we also say that the employer must act immediately if the employer wishes to terminate people for misconduct, and we will show that that didn't in fact occur in this matter. We say that it is substantive in its unfairness in that the breakdown of machinery, which is at the core of this termination, was outside of the control of the employee. That the employee was not aware of the breakdown therefore was unaware of the need to take corrective action and that the employee has not acted in a negligent manner and did not ignore audible or visual alarms as contended by the employer."3 The undisputed evidence in this matter is that early in the morning of 8 February 1998, while the Employee was the only person on shift at the Betta Milk plant, 147 Old Surrey Road, Burnie, an electrical fault occurred which resulted in a substantial spill of cooling liquid. It was estimated that the quantity lost was approximately twenty thousand litres with an estimated value of ten thousand dollars. The spill of liquid from storage tanks at the rear of the plant was first noticed by an employee of Lactos Cheese Factory which is located next door to the Betta Milk plant. The Lactos employee rang the Betta Milk plant at approximately 5.05 am on 8 February 1998 at about the time that a supervisor Mr Greg Denby arrived at work. Mr Denby and the Employee responded to the phone call and the problem by shutting down the plant to stop the flow of liquid. The Company position in this matter is clear and is articulated by Mr A Cameron of the Tasmanian Chamber of Commerce and Industry as follows:- "Mr Cameron: The Company did dismiss Mr Wright, in relation to failing to respond to the audible and visual alarms that the Company has in place to alert employees of breakdowns and problems at the plant."4 My determination of this matter must rest on my assessment of the evidence going to whether or not the alarm system functioned properly on the morning of 8 February 1998. Because if it didn't the Employee, to use Mr Flanagan's words, "was not aware of the breakdown therefore was unaware of the need to take corrective action."5 In those circumstances I accept that no responsibility for the spillage could be levelled at the Employee. From an inspection of the Betta Milk plant I observed that the tanks from which the spillage/overflow occurred were located at the back of the plant. Evidence was that after the initial start up of machinery there would be no need for the employee to return to the area of the tanks unless an alarm alerted him to the fact that something was amiss. The critical evidence going to the functioning of the alarm systems came from the Employee and the supervisor Mr Denby. The Employee's evidence is summarised as follows:-
Much of the evidence of Supervisor Denby is consistent with that of the Employee however, significant differences and other relevant evidence is summarised as follows:-
In assessing the above evidence and coming to a conclusion I have given careful consideration to not only the evidence given at the hearing and the transcript of that evidence, but also the demeanour and body language of the witnesses and those involved during the hearing and the inspections of the site. There is no doubt that Mr Denby was a very creditable witness who did not enjoy giving evidence against a workmate. He carefully considered questions put to him and answered them, I believe, truthfully and fairly. He was very careful and honest in his response to questions about the ability of the Employee and his performance over the last few years. The Employee on the other hand answered questions to the best of his ability but was unsure and not clear about some of the critical detail, both going to the incidents on 8 February 1998 and also earlier incidents raised by the Company. I believe on the basis of all the evidence put to me in this case that the alarm system was working properly on the morning of 8 February 1998, that in fact the alarms did go off and that the Employee obviously switched off the audible alarm. However he did not attend to the visual alarm for the ammonia plant and more importantly attend to the problem the cause of the alarm. In the context of the Employee's service over a long period of time (some 30 years) if this had been a one off incident, serious though it was, it might be argued that termination was a harsh penalty. However, Exhibit C.1 prepared by Mr Denby and supported by his evidence detailed a number of complaints, incidents and actions involving the Employee from 1995 to the time of dismissal. While many of the incidents or complaints were not on their own serious, some were with potential, or substantial consequences for the Company. The number and variety of incidents or complaints tend to lead one to the conclusion that the Employee has had problems for some years. Mr Cameron raised the spectrum of the Employee not being dismissed by the Company, but having regard for all of the circumstances the termination was in fact a mutual one. I do not intend to traverse the detail of his submissions on this issue. I simply confirm my view that ultimately the Employee was dismissed by the Company and Exhibit F.1 is proof of that dismissal. However, there were some very unfortunate incidents over the days preceding the communication of 12 February 199810 to the Employee. I hope those involved have learned from them so that similar situations do not occur again. As I indicated during the hearing of this matter the process leading up to the termination of the Employee and the unfortunate incidents going to the actual termination gave some substance to Mr Flanagan's submission that the Employee was not afforded procedural fairness. The Employee was summoned to a meeting with management over the incident on 8th February 1998 however, he was not told the reason for the meeting and therefore not given time to get advice and consider his position. However, a Union delegate and Official were invited to the same meeting and neither sought to enlighten the Employee of the purpose of the meeting before it began. It was alleged by Mr Flanagan that the Employee was not given a chance to explain or defend his actions or lack of action on 8 February 1998. However, there was evidence from the Employee and Mr Denby that the incident was discussed on 11 February 1998 with those discussions breaking down over whether or not the alarms were activated by the fault in the ammonia plant. In essence this was the only real issue for debate and of course given the evidence, both sides had a diametrically opposed position. The Employee was in fact given the opportunity to defend his actions. What happened from then on was totally unsatisfactory from the Employee's perspective however, the Union it would appear was as much to blame as the Company. Based on all of the evidence before me I find that although there was some problems with the process the fundamentals were in place and problems were as much the Union's fault as the Company. The submission that any disciplinary action on the incident had to be immediate i.e. immediately after the incident is not accepted. I do agree that prompt action in these situations is vital. However, in this case the clear evidence was that the General Manager is the only person able to dismiss an employee. The incident occurred on a Sunday, the General Manager did not return to work until Tuesday 10 February 1998. At a meeting with his supervisors that morning he instructed that the supervisors meet with the Employee as soon as they had checked their facts. His evidence was also clear that he advised his supervisors that he believed the Employee had a case to answer and if he didn't have satisfactory answers the Supervisors had the authority to dismiss him. This view of the General Manager led to the allegation that he had pre-judged the issue and therefore prejudiced the Employee. I understand why the accusation is made however, again the evidence is clear that the Supervisors were to make the decision after the meeting with the Employee, depending on what transpired at that meeting. The meeting with the Employee took place the next morning in my opinion not an unreasonable scenario. In all of the circumstances of this matter I am not prepared to overturn or vary the decision of the Company to dismiss the Employee. Therefore the application is dismissed and I so order.
J G King Appearances: Date and place of hearing: 1 Transcript page 1 |