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T9182

 

TASMANIAN INDUSTRIAL COMMISSION

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

The Australian Workers' Union, Tasmania Branch
(T9182 of 2000)

and

Henry Walker Eltin Contracting Pty Ltd

 

COMMISSIONER T J ABEY

HOBART, 30 November 2000

Industrial dispute - termination - no valid reason for termination - compensation ordered

REASONS FOR DECISION

On 7 September 2000 The Australian Workers' Union, Tasmania Branch (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Henry Walker Eltin Contracting Pty Ltd (the employer) arising out of the alleged harsh, unjust and unreasonable termination of employment of Mr Alexander Lucas.

On 19 September 2000 the A/President convened a hearing before myself at "Lyndhurst", 448 Elizabeth Street, North Hobart to commence at 10.00am on Friday, 6 October 2000.

When this matter first came on for hearing on 6 October 2000 Mr R Flanagan of The Australian Workers' Union, Tasmania Branch (AWU) appeared for the applicant. Mrs A L Murfet of the Australian Mines and Metals Association Inc., together with Mr C Farr, represented the employer.

Following preliminary submissions the hearing was adjourned into private conference, with the Commission, in an effort to find a resolution to the dispute. This proved to be unsuccessful and the application was re-listed for hearing at Renison Bell on 13 November 2000.

When the hearing resumed Mr R Collinson, a solicitor, sought and was granted leave to appear for the applicant. Mr W Fitzgerald appeared for the employer in place of Mrs Murfet.

Background

The employer undertakes contract mining services for the principal, Murchison United, such work including development activity and load and haul activity around the mine.

The applicant commenced employment with the employer as a grader operator on 2 July 1999.

During his period of employment Mr Lucas had been formally counselled on several occasions and had been given written warnings in January, March and June of 2000. These warnings relate to a consistent pattern of unauthorised absenteeism and back-dated medical certificates.

The work performance of Mr Lucas when at work was generally regarded as good. There was also evidence that Mr Lucas was suffering significant personal difficulties at the time, which in turn led to excessive alcohol consumption and the need for anti-depressant medication. The employer had shown commendable sympathy for these difficulties and had assisted with proactive workplace assistance programs. Nonetheless in the eyes of the employer Mr Lucas' history of unauthorised absences was entirely unacceptable.

It is common ground that on 15 June 2000 Mr Lucas was issued with a "written final warning". It was also clear from the evidence that both parties clearly understood that any further transgressions would almost certainly result in termination. In the words of Mr Collinson: 1

"We would accept, Mr Commissioner, that the worker at the time was skating on thin ice but our case is that that ice hadn't cracked and he certainly hadn't fallen through the hole on this occasion."

The "occasion" Mr Collinson was referring to had its genesis in an incident which occurred at work on 18 August 2000. According to the evidence of Mr Lucas, he noticed pain in the left side of his back which he attributed to the seat not having a cut out side. He went to first-aid, reported this in the first-aid book and took two Panamax. Later in the shift the vehicle Mr Lucas was driving was involved in a minor accident. It is common ground that this accident was not the fault of Mr Lucas. He reported the accident to his shift boss but did not make a written "incident report". Mr Lucas did however note the incident on his time sheet at the end of the shift.

Mr Lucas was due to return to work on 22 August. However the pain in his back had increased and he attempted to notify the employer via the Murchison first-aid centre that he would be absent on that day. It is the method of notification which is at the heart of this dispute.

Mr Lucas was absent on both 23 and 24 August. On both occasions the employer was properly notified of the absence. On 23 August Mr Lucas attended his doctor who issued him with an unfit for work certificate for the period 22 to 24 August. The doctor also apparently advised Mr Lucas that the back pain was muscular rather than a kidney problem and was work related. On this advice Mr Lucas resolved to fill out an incident report and make a workers' compensation claim.

Mr Lucas returned to work on 25 August. However prior to commencing the shift Mr Lucas was stood down with pay for three days. A major factor in this stand-down was the fact that Mr Lucas had advised Mr Farr that he had taken Mersyndol, a medication likely to cause drowsiness. Mr Farr maintained that the stand-down was also to enable an investigation into the 22 August absence and that Mr Lucas was aware of this investigation. Mr Lucas disputed that he had knowledge of this investigation.

On 28 August Mr Lucas was terminated. The "relevant facts" in the Performance Improvement Notice read as follows: 2

"Failed to present for rostered shift. Failed to notify of absence to supervisor within 2 hours of normal commencement time."

The Evidence

During the hearing the Commission heard evidence from the following:

  • Alexander Craig Lucas, who is the applicant.
  • David Grant Stephens, an electrician employed by Murchison. Mr Stephens took the call when Mr Lucas telephoned the first-aid centre on 22 August.
  • Elizabeth Ruth Kubiak, site 2 administrator with Henry Walker Eltin.
  • Desmond James Moore, a supervisor with the employer.
  • Colin Richard Farr, Project Manager for the employer.

In this decision I will refer to the evidence of the witnesses as it relates to the critical facts.

Circumstances Leading to the Dismissal

It was readily accepted by all that Mr Lucas was on a final warning and any further breach of company procedures would almost certainly result in termination. The issue for the Commission is therefore whether such a breach occurred and, if so, was Mr Lucas afforded procedural fairness.

During the hearing there was a considerable amount of evidence relating to the fact that Mr Lucas did not complete an incident report on 18 August. Having reviewed the transcript I am satisfied that this was not a reason for the termination of Mr Lucas. As Mr Farr said:3

"Mr Lucas was terminated on the grounds that he'd been absent without approved leave and without notifying Henry Walker Eltin of the absence as required."

This statement is consistent with that stated on the termination record4 and hence I will concentrate on this aspect.

The evidence of Mr Lucas, as corroborated by Mr Stephens, is largely uncontested and can be summarised as follows:

On 22 August Mr Lucas was due to commence his shift at 6.15am. Prior to the commencement time Mr Lucas attempted to contact his shift supervisor by telephone to advise that he would not be coming in due to a sore back. He was unable to contact his supervisor and so he then phoned the first-aid office. It is important to note that the first-aid centre is staffed by Murchison personnel.

The phone call was answered by a person who said, "Renison Bell first-aid"5. Mr Lucas did not inquire as to the identity of the person answering the call but assumed it was the regular first-aid officer, Mr Donald [Jock} McCreadie. It subsequently transpires that it was answered by Mr Stephens, a Murchison electrician who happened to be in the adjacent store at the time and agreed to mind the phone whilst Mr McCreadie was absent for a few minutes. It is indeed unfortunate that the identity of Mr Stephens was not discovered until some weeks after Mr Lucas was terminated.

According to the evidence of Mr Stephens a conversation along the following lines ensued:6

"... he told me, 'hello, I'm Lex Lucas, I'm ringing in sick. I've tried to ring through to Henry Walker but I can't get through, no one's there or no one's answering the phone'."

"My response to that was, 'if no one's there, they're not answering for you, they probably won't answer for me, I'll try'. Lex said to me, he'd continue to try, and with that I rang through to extension 300, which is the Henry Walker workshop -"

"Someone answered the phone down there and I said, 'I've just received a message from Lex Lucas saying that he wouldn't be in today, he's crook', and the bloke on the other end of the phone said, 'you've got the wrong extension number, you've got the workshop, I'll pass the message on'."

We can only assume that whoever took the call from Mr Stephens did not in fact pass on the message to the shift supervisor.

Mr Stephens further advised that he had approached Mr Farr, in the presence of Mr McCreadie, approximately a fortnight later and indicated that Mr Lucas had rung in and that he [Mr Stephens] had taken the call.

There was some debate about the subsequent efforts of Mr Lucas to contact the shift supervisor. The evidence of Mr Lucas is that he tried to ring at least once more but did not persist beyond that.7

The critical issue is whether Mr Lucas could reasonably have held the view that notification of absence via the first-aid office was an acceptable procedure.

Clause 10.4.4 of the Henry Walker Eltin Contracting Pty Ltd Underground Development Enterprise Agreement [the Agreement] states as follows:8

"An employee must notify or have notified his/her supervisor within two (2) hours of normal commencement time of his/her inability to attend to work due to illness. He/she must state the nature of the illness and the estimated duration of the absence. Lack of such notification will disentitle an employee from receiving paid Sick Leave."

The contention of the employer is that there is a clear requirement for an employee to notify the supervisor directly and not through an agent.

Mr Collinson drew attention to the words "... or have notified ..." which he argued contemplates circumstances other than direct notification to the supervisor by the employee concerned. Mr Farr conceded that there was some ambiguity with the clause:9

Q. "So you don't think it refers to notifying someone else to pass the message on?

A. "Well I don't think so but I certainly would concede that it could be construed in that way. I concede certainly that it is not well written but I would also state that we regularly have made it clear that the requirements on our employees, if they are unable to present for a rostered shift, is that they must notify their supervisor within two hours of the commencement of the shift."

Ms Kubiak, in her evidence, denied that it was standard practice for employees to call the first-aid room in the event of illness, in fact she was unaware of any instance where it had happened. She said that they must keep on trying to contact their supervisor or herself in the office as the next "port of call".10

Whilst this is an eminently sensible procedure, it does call into question the suggestion that the supervisor must be contacted directly and not through another person.

It is common ground that in every case an employee should attempt to contact the supervisor in the first instance. The real question is, what should an employee do if the supervisor is simply uncontactable?

In his evidence Mr Lucas maintained that ringing the first-aid centre was common practice:11

Q. "Were you ever told at any stage during your employment with Henry Walker that you could be terminated for ... ringing first aid?

A. "No, well it was common knowledge to ring first aid. Craig Clarke, the shift boss, he told us all to ring in first aid if you couldn't reach him because that's like the control centre of the mine ..."

Mr Lucas provided examples of other instances whereby employees, including supervisors, had rung in via the first-aid centre12.

Mr Moore, during cross-examination, agreed that ringing the first-aid office was "... probably not unheard of, no".13

Mr Farr also acknowledged that the practice did occur, but that it was an unacceptable practice:14

Q. "From your knowledge of the site, is it common practice amongst Henry Walker Eltin employees to ring the first aid room, if they can't make a shift?"

A. "It is not common practice, no. It has happened. It happened on this occasion with Mr Lucas but, no, it's not common practice and we have repeatedly told people who have chosen that course of action to notify first aid instead of the supervisor, that that is not the accepted process and advise them of what the accepted process is."

Findings

There can be no doubt that Mr Lucas, having been unable to contact his supervisor prior to the 22 August shift, did try to contact the employer via the Renison first-aid centre. Given his recent employment history, had he simply "blown the shift" without notification, there is absolutely no doubt in my mind that termination would have been a justifiable decision on the part of the employer.

What followed from there amounts to almost freakish bad luck on Mr Lucas' part. Unbeknown to Mr Lucas, the message was taken in good faith by Mr Stephens who was "minding the fort" for a few minutes only. Mr Stephens did what he said he would do. He rang the Henry Walker office, apparently got the wrong extension, but nonetheless spoke to a Henry Walker employee, who in turn undertook to pass the message on. We can only assume that this did not occur.

This sequence of events obviously did not become apparent to Mr Farr when conducting the investigation over the weekend of 26 and 27 August. I conclude that, more than likely, Mr Farr was of the belief that no such notification had been made to the first-aid office when he made the decision to terminate Mr Lucas on 28 August. I also believe that, had Mr Lucas been fully aware of the sequence of events, he would have made a much better fist of his defence.

What would have happened if the message had been properly relayed to the supervisor, as both Mr Lucas and Mr Stephens believed it had been, is a matter for conjecture.

The question that remains is, whether Mr Lucas could reasonably have been of the mind that notification through the first-aid office was an acceptable practice?

The express terms of Clause 10.4.4 of the Agreement I consider to be ambiguous and largely unhelpful in this context. At the very least the words contemplate the possibility of notification to the supervisor via another person.

There is no doubt that other employees have notified of absences via the first-aid office. The unchallenged evidence of Mr Lucas is that this included supervisors. How frequent was the practice is unclear.

I unreservedly accept the evidence of Mr Farr that offending employees have been told, on an individual basis, that this is an unacceptable practice. There was, however, no evidence provided of any formal disciplinary action having been taken against employees for this in the past.

I emphasise that the counselling referred to above appears to have been limited to individuals, of which Mr Lucas was not one. The employer was unable to provide any evidence of a general instruction to the workforce, either in writing or through "tool box" meetings. It is also significant that there is no mention of notification procedures in the comprehensive induction document15 or the "New Starter Check List".16

Against this background I have reached the conclusion that Mr Lucas genuinely believed that notification via the first-aid office was an acceptable practice in the event that the supervisor could not be contacted. I also conclude that, in all the circumstances, it was reasonable for Mr Lucas to hold such a belief.

Mr Fitzgerald argued that there was an onus on Mr Lucas to continue in his efforts to contact the supervisor after making contact with the first-aid office. Mr Lucas' evidence is that he made one further phone call but did not persist. This raises the question of, in circumstances whereby an employee genuinely and reasonably believes that he has followed an acceptable procedure, what onus falls to him to persist with the original course of action? I am unable to conclude that the failure of Mr Lucas to persist until contact was made, whilst perhaps disappointing, is something that warrants termination of employment.

I therefore conclude that the employer has failed to satisfy the onus of demonstrating that a valid reason for termination existed and in that context I find that the termination was unfair. Having found that there was no valid reason, it is unnecessary to address the issue of procedural fairness.

Remedy

Mr Collinson, on behalf of the applicant, sought the primary remedy of reinstatement. In support of this position he advanced the following reasons as to why reinstatement was both appropriate and practicable:

  • The dismissal was not performance related and there was no suggestion that Mr Lucas was incompetent or harmful to productivity or safety.
  • The applicant did not have a great deal of day-to-day contact with Mr Farr and there was no suggestion that any of the supervisors had a lack of faith in the ability of Mr Lucas to do the job.
  • There was no issue as to the applicant's honesty in the workplace.
  • The alleged failure to follow procedure was capable of remedy.

Mr Collinson contended that, in the event I was against reinstatement, there was a strong case for compensation. Further, he submitted that well-established principles found in Nicolson v Heaven and Earth Gallery should be followed in assessing the quantum of compensation.

Reinstatement was strongly opposed by Mr Fitzgerald. He referred to Mr Lucas' employment history and in particular the issue of repeated unauthorised absences. Mr Fitzgerald submitted that there was no evidence that the problems experienced by Mr Lucas had been remedied and it followed that there was no guarantee that Mr Lucas could give reliable ongoing service.

Of greater force in my mind is the issue of the article which appeared in "Australia's Mining Monthly".17 Mr Lucas conceded that he had anonymously provided the material for this article. On any objective assessment, it is an article which is highly critical of an unnamed employer, but which is clearly Henry Walker Eltin.

The veracity or otherwise of this article is not the issue. Within the law it was open for Mr Lucas to say whatever he likes about his former employer in whatever forum he chooses. In doing so however, and irrespective of motivation, he runs a very grave risk of destroying any prospect of establishing a workable employer/employee relationship which might, in the absence of such action, be capable of being rebuilt.

I believe the damage has been done in this case. Presumably the journal is widely read in mining circles and the article is potentially damaging to the reputation of the employer. In such circumstances I am sympathetic to a submission from the Company to the effect that there has been an irretrievable breakdown in the relationship. For these reasons I find reinstatement to be impracticable in the context of Section 31[1B] of the Act.

I accept however that there is a case for compensation.

In determining the appropriate quantum of compensation, I propose to follow the well-established principle of assessing how long the applicant would in all likelihood have continued in employment had substantive fairness been complied with.

This of course is a matter of judgement rather than a precise science.

Mr Lucas had been employed for a little over 12 months. In that time he had accumulated at least three written warnings and he was unambiguously on his last chance at the time of dismissal. There was some evidence that Mr Lucas' personal problems were behind him and his attendance record over the last two months had improved markedly. Against this, unless there was a quite remarkable turnaround in what had hitherto been an unflattering employment history, I could not reasonably conclude that a long term employment relationship with this employer was probable, indeed it was unlikely.

Having regard for all the circumstances I consider that compensation equivalent to 10 weeks' pay is appropriate. There was no evidence provided as to level or method of remuneration of the applicant. It is therefore my intention that the definition of "normal weekly earnings" as found in the Workers Rehabilitation and Compensation Act 1988 be used.

ORDER

Pursuant to Section 31[1B] of the Act, I hereby order that Henry Walker Eltin Contracting Pty Ltd pay to Alexander Craig Lucas, through his agent, Mr Rod Collinson of Ogilvie McKenna, Barristers & Solicitors, 211 Macquarie Street, Hobart, Tasmania 7000, an amount equivalent to 10 weeks' pay calculated on the basis of normal weekly earnings. Provided further that such amount be paid within 21 days of the date of this decision.

 

Tim Abey
COMMISSIONER

Appearances:
Mr R Flanagan and Mr R Collinson, legal practitioner, for The Australian Workers' Union, Tasmania Branch and Mr A Lucas.
Mrs A Murfet and Mr W Fitzgerald, of the Australian Mines and Metals Association Inc., with Mr C Farr for Henry Walker Eltin Contracting Pty Ltd.

Date and Place of Hearing:
2000
October 6
Hobart
November 13, 14
Renison Bell

1 Transcript p. 7
2 Exhibit R6
3 Transcript p. 73
4 Exhibit R6
5 Transcript p. 51
6 Transcript pp. 51 & 52
7 Transcript p. 42
8 Exhibit A3
9 Transcript p. 71
10 Transcript p. 59
11 Transcript p. 14
12 Transcript p. 37
13 Transcript p. 64
14 Transcript p. 72
15 Exhibit R2
16 Exhibit R3
17 Exhibit R7