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T6468

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against an order

The Australian Workers' Union, Tasmania Branch
(T6468 of 1996)

 

FULL BENCH:
PRESIDENT F D WESTWOOD
DEPUTY PRESIDENT B R JOHNSON
COMMISSIONER R J WATLING

HOBART, 5 December 1996

Appeal against order handed down by Commissioner Imlach on 6.8.96 in Matter T6247 of 1996 in relation to termination of an employee of Pasminco Metals-EZ

REASONS FOR DECISION

On the 14 June 1996 The Australian Workers' Union, Tasmania Branch made application to the President for a hearing in respect of an industrial dispute pursuant to section 29(1) of the Act.

The circumstances of that dispute were described as -

"The Australian Workers' Union, Tasmania Branch alleges that Pasminco Metals E Z has unfairly, unjustly and unreasonably terminated the employment contract of our member, Mr Andrew Fairfield. The Union seeks reinstatement of Mr Fairfields' (sic) employment contract with Pasminco Metals E Z."

The matter was referred to Commissioner Imlach and, after conducting a hearing, he determined in his Reasons for Decision1 dated 6 August 1996, that he was not prepared to interfere with the company's decision to terminate Mr Fairfield's employment as -

"... the Company did not treat Mr Fairfield unjustly in that he was already under a strict warning, he was given due warning and proper procedures were followed."

It is against this decision that The Australian Workers' Union, Tasmania Branch (the appellant), on 26 August 1996, lodged a Notice of Appeal pursuant to section 70(1) of the Act, which contained the following grounds :

"1. The learned Commissioner erred in fact and/or law in not finding that the applicant was singled out for serious disciplinary actions whereas other abusers were not so drastically dealt with.

2. That the learned Commissioner erred in fact and/or law in placing undue weight on a letter dated the 14 September 1995 from the General Manager of EZ Risdon, which the applicant did not receive.

3. That the learned Commissioner erred in fact and/or law including (sic) that by smoking on the workplace floor, the applicant should have foreseen that this was an action likely to bring about the termination of his employment.

4. That the learned Commissioner erred in fact and/or law in concluding that the applicant's actions were such as to interfere with and prejudice the business of the company.

5. That the learned Commissioner erred in fact and/or law in stating that the applicant was late for work on the 7 June 1996.

6. That the learned Commissioner erred in fact and/or law in placing undue weight on the applicant's previous warning for abuses in relation to "taxi use".

7. That the learned Commissioner erred in fact and/or law in not finding that the applicant's termination was harsh and unfair."

At the commencement of the appeal hearing, notice was given by the appellant that no submission would be placed in respect of Ground 7.

EMPLOYMENT HISTORY

  • Mr Fairfield commenced his employment with Pasminco Metals-EZ (the respondent) in February 1993 as Grade 5 Shift Operator and he worked in the Electrolysis Division of the cell room at the respondent's works.

  • On 6 December 1995 a discussion took place between the respondent and Mr Fairfield in relation to his, (Mr Fairfield), performance and the unauthorised use of taxis.

  • In correspondence dated 18 December 19952 Mr Fairfield was issued with a final warning along with other conditions and standards to be met. The final warning was to apply from 8 December 1995 and, the notice stated, that any further misdemeanours within two years from that date would result in Mr Fairfield's dismissal. Mr Fairfield was also reminded of his obligations under the award and his conditions of employment.

In correspondence3 dated 7 June 1996 the respondent advised Mr Fairfield as follows:

"You are advised that your employment with Pasminco Metals EZ is terminated.

The reason for this is, that on Friday 7th June 1996 you engaged in misconduct when already on a final warning. Whilst you were being paid to undertake your normal and expected duties as a Pasminco Metals EZ employee.

A full and thorough investigation by the company has established:

1. That at or around 8.45 am on Friday 7th June 1996 you were found to be smoking tobacco on site.

2. That you were aware that smoking was in direct breach of the company policy.

3. That you were aware of the seriousness with which the company viewed such an action.

4. That knowing yourself to be on a final warning for other breaches of company policy and standards you were aware of the likely consequences if you breached any further site standards or policies.

Further, the company is not satisfied that further misconduct will not recur in the future, if you remained in our employment.

You will receive a termination payment, three weeks full pay in lieu of notice and your full accumulated entitlements."

SMOKE FREE POLICY

  • On 5 April 1994 the respondent introduced a policy forbidding smoking on the respondent's property and that included both inside and outside any of the buildings on the property.

  • The document titled 'Pasminco Metals-EZ Smoke Free Policy"4 stated:

"In the interest of all employees' health and also to be seen as actively encouraging PMEZ personnel to cease smoking, PMEZ will introduce a total Non Smoking policy from 5th April 1994.

This will be comprehensive such that no-one will smoke on PMEZ property and include both inside and outside of any building.

Personnel who do no adhere to this policy will be subject to disciplinary procedures as per the "discipline code" of PMEZ.

As part of this policy PMEZ will help people who wish to cease smoking completely by arranging counselling and advice through appropriate Quit Smoking programs.

Details of Quit Smoking programs can be obtained from PMEZ Occupational Health Clinic in the 1st instance or form (sic) your family doctor and/or Community Help Group."

  • Mr Fairfield was aware of the previously mentioned policy5 including the fact that all employees and visitors, when they had gone through the normal induction process on site, were informed that it was a smoke-free workplace.6

We also note that Mr Fairfield signed a document7 on 5 November 1995 signifying that he had received the Review of General Information Booklet September/October 19958 which contains, at page 5 of that booklet, in Clause 22, the following :

The company also has a Smoke Free policy which forbids smoking on site.

APPEAL PRINCIPLES

Mr Forbes, of Counsel, for the respondent, presented a submission on the appropriate principles to be applied when dealing with appeals of this nature. He said that those laid down by the High Court of Australia in House v. The King 1936, 55 CLR 499 should be adopted by this bench as it was a case which was notoriously quoted in appeals in all kinds of jurisdictions, particularly appeals in industrial jurisdictions.

He said that the position adopted by Dixon, Evatt & McTiernan JJs in that decision was particularly appropriate as it was an appeal against an exercise of discretion. He drew our attention to pages 504 and 505 of that decision, in which it stated :

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

We accept that those principles, in an industrial context, were again reiterated by the Australian Commission in Aust. Workers' Union v. Poon Bros (W.A.) Pty Ltd & Ors 1993 4 IR 394.

The principles enunciated in those two cases have been adopted by this Commission in the past, and more recently in T5419 of 19959, which was an appeal against a decision of a commissioner sitting alone arising out of applications T4613 of 1993 and T4654 of 1993.

When determining this appeal we, once again, have followed the principles enunciated in the previously mentioned authorities. This approach was not opposed by Mr Cooley, of Counsel, for the appellant in this matter.

GROUND 1

Mr Cooley submitted that the Commissioner erred in fact and/or at law in not finding that Mr Fairfield was singled out for serious disciplinary actions, whereas other abusers were not so drastically dealt with.

He said that there was strong evidence at the hearing that the company's smoking policy was routinely offended and that penalties for such offences were, if nothing else, irregular and that Commissioner Imlach noted this in his decision.

Mr Cooley then took us to the transcript of the original hearing to demonstrate the effectiveness of the respondent's no smoking policy. It was Mr Cooley's submission that clear evidence was led, that was uncontradicted, as to the widespread smoking in the cell room which was contrary to the respondent company's policy.

He also submitted that the only evidence led showing enforcement of the non smoking policy was contained in Exhibit K.7 - Discipline Summary - Electrolysis which showed, amongst other things, that: one person had received a final warning; one person had received a warning; and, 18 people had received counselling in relation to the policy.

Mr Forbes said that there was no contest with the fact that people smoked in the cell room, however, there was a policy of non smoking on site in place and that the application of that policy was non-discriminatory in the sense that it was not specifically imposed on Mr Fairfield.

He said it was a policy which applied to all employees and visitors when going on site and there was no singling out in terms of applying the policy only to Mr Fairfield. He said the only singling out that could be identified was that Mr Fairfield was terminated for smoking and others may not have been, and that the only reason for that was that Mr Fairfield was on his final warning and others were not.

Mr Forbes said that when the evidence was taken as a whole and when one looks at the reasons behind the final warning, which brought Mr Fairfield to the edge of a cliff, the reason why he was treated that way, on that occasion, was because he engaged in conduct which was unique to him. He was the only employee using a taxi to attend normal work, so he got a final warning and others got something less than a final warning.

It was his submission that there was nothing extraordinary about different grades of discipline being used for different grades of offences.

He said that Mr Fairfield, having received a final warning, set himself up to be treated differently to other employees in relation to subsequent conduct.

He said that Mr Fairfield was terminated for breach of company policy which just happened to be on that occasion for smoking and that at it might have been a whole range of other things.

We are of the view that it was open to Commissioner Imlach to arrive at the conclusion that Mr Fairfield was not singled out for special treatment. Mr Fairfield was on a final warning and any further breach of company policy was going to place him in a different situation to other employees on the plant. In this regard we agree with the submissions presented by Mr Forbes, for the respondent.

Therefore we dismiss this ground of appeal.

GROUND 2

Mr Cooley submitted that the Commissioner erred in fact and/or at law in placing undue weight on the letter dated 14 September 1995 from the General Manager of EZ Risdon, and which, he submitted, Mr Fairfield did not receive. As a consequence he said his ground of appeal was two-fold:

1.  Mr Fairfield asserted he did not receive the letter; and

2.  That the Commissioner ought not to have interpreted the letter as 'drawing a line in the sand' in relation to breaches of the disciplinary code.

The letter dated 14 September 1995 stated, inter alia:

"14th September 1995

LETTER TO ELECTROLYSIS SHIFT OPERATING PERSONNEL

I am writing to you individually as a consequence of the unacceptable actions taken in the Cell Room over the past few weeks and more recently the disregard for the Industrial Commission's Ruling. PMEZ have a defined Business Goal which is -

"To safely and reliably provide consistent supply of product to meet or exceed our customer requirements, by ensuring a stable process which optimises production, while complying with statutory requirements".

I want to make you fully aware the actions of the Cell Room have contributed to the loss of customers and market share.

Further, the ongoing level of process stoppages in Electrolysis has created a situation which can no longer be tolerated by the business.

Any issue which arises as part of our business operation must be dealt with in a considered, systematic and constructive manner.

You are reminded -

·  that there are procedures in place which allow for the continuation of the operation while issues are being resolved.

·   that you have individual obligations under your Award and Contract of Employment.

·   that your commitment to your employment and the business must be demonstrated by actions consistent with our Business Goal.

·   that you are obliged (as is the Company) to accept and abide by statutory requirements.

As a consequence of the disruption to production, I must inform you that in future, Management will take the appropriate actions where established policies and procedures are not adhered to. This may include -

·   steps within the disciplinary code,

·   determinations via the Tasmanian Industrial Commission, and

·   termination of service

I recognise that you, as an individual, may be as frustrated by the events in your workplace as I am. However, for consistency, I must deliver the same message to all shift operators in Electrolysis, so that everyone clearly understands the situation. Please consider what I have written and your individual position carefully. I am relying on your support to ensure we all create a stable future at PMEZ.

Yours sincerely,
PASMINCO METALS - EZ
(Sgd) J.P. McAlpine
GENERAL MANAGER
"

It was further submitted that Imlach C. erred in holding that the said letter ought to have been interpreted by the employee as "drawing a line in the sand" in relation to breaches of the disciplinary code.

Mr Cooley submitted that the letter was irrelevant on a number of grounds:

Firstly, it dealt with issues relating to the disruption of production in the cell room and was sent out as a result of industrial action by cell room workers, which led to losses in production.

Secondly, it in no way refers to breaches of the disciplinary code, save that it states that as a consequence of the disruption to production, management would take the appropriate action where established policies and procedures are not adhered to which may include steps within the disciplinary code.

And finally, it was not specific to Mr Fairfield or related specifically to his employment with the respondent.

As a result of these three contentions, Mr Cooley submitted that Imlach C. placed undue weight on an irrelevant letter, in that it could not be said that Mr Fairfield was specifically warned as to his likelihood of termination as a result of the management sending the letter.

Mr Cooley said that he relied also on the fact that no evidence was led as to Mr Fairfield actually receiving the letter.

Mr Forbes stated that there was no finding by Imlach C. that Mr Fairfield had received the letter and, for that matter, it remained unanswered on the evidence.

He also went on to point out that Imlach C., in his decision, quoted the letter, not as a letter which as a matter of fact had been received, but when looked at in the context of his decision it was introduced by saying:

"The company reminded the Commission that 'the line had been drawn in the sand' by a letter to all staff and a further letter specifically to cell room employees, by the General Manager on 14 September 1995 which stated the company's position as follows: "

He said that Imlach C. concludes on page 3 of the decision, after he quotes the letter, by saying:

"I have included the letter to the cell room employees because it is specific and it demonstrates the atmosphere in which Mr Fairfield's action took place."

We reject this ground of appeal in that we cannot find where Imlach C. placed any undue weight on the letter of 14 September 1995, nor did he make any finding that it was specifically directed to or received by Mr Fairfield. It was, in our view, nothing more than, as Imlach C. put it, to demonstrate the atmosphere in which Mr Fairfield's action took place.

GROUND 3

It was Mr Cooley's submission that the Commissioner erred in fact and/or at law in concluding that, by smoking on the workplace floor, Mr Fairfield should have foreseen that this was an action likely to bring about the termination of his employment.

He said that at no time did Mr Fairfield foresee, or that he ought to have foreseen, that a breach of the non-smoking policy would bring about the termination of his employment.

Mr Cooley then took us to certain parts of Mr Fairfield's examination-in-chief, given during the original hearing, in which he stated that he knew that some people had been disciplined for breaching the non-smoking policy, but he did not know that it was that serious that he could be dismissed for it. Mr Fairfield was of the view that he would only "get a smack on the hand".

Mr Cooley submitted that Mr Fairfield's inability to foresee that smoking was likely to bring about his termination could be attributed to his final warning, given on 8 December 1995, in that the respondent failed to notify that breach of the non-smoking policy would also result in the applicant's dismissal.

He said that by listing specific actions that would bring about Mr Fairfield's dismissal, in the final warning notice, Mr Fairfield was unable to foresee that breach of the non-smoking policy would bring about his termination.

We, like Mr Forbes for the respondent, are not able to establish where Commissioner Imlach made the finding that Mr Fairfield should have foreseen that this was an action likely to bring about the termination of his employment.

However, if he did make such a finding, it was open to him to draw that conclusion, given the final warning letter and the interpretation that should have been placed on it, especially given that he was reminded of his obligations under the award and his contract of employment. In our view, that included conditions of employment contained in Exhibits K.4 and K.6 tendered during the original hearing.

We reject this ground of appeal.

GROUND 4

Mr Cooley submitted that the Commissioner erred in fact and/or at law in concluding that the applicant's actions were such as to interfere with and prejudice the business of the company.

He said that in the original hearing the applicant quoted the case of Jupiter General Insurance Co. Ltd., v. Ardeshir Bomanji Shroff, Privy Council 1937 where it was held that the test to be applied as to whether the circumstances justified dismissal were :

"Whether the misconduct of the respondent was not such as to interfere with and to prejudice the safe and proper conduct of the business of the company."

Mr Cooley said that the Commissioner in his decision on page 5 stated:

"The union submitted that Mr Fairfield's actions were not such as to interfere and prejudice the business of the company. In the light of the clear aims and policies of the company and the history of this case, I do not accept this contention."

Mr Cooley submitted that there was no evidence led by either party as to Mr Fairfield's actions interfering and prejudicing the safe and proper conduct of the business of the respondent.

Mr Forbes said that, the only reference to interference and prejudice to the respondent's business, arose out of a submission made by the applicant in the original hearing. He said the Commissioner noted that the applicant relied on that judgment, so it was in that context which this issue arose.

He said that what the Commissioner was saying was that he didn't accept the contention that there was no real harm, or there was no real interference or prejudice to the proper and safe conduct of the business of the respondent. Mr Forbes said the real question was whether it was reasonable for Imlach C. to dismiss that sort of submission and it was his submission that it was.

Mr Forbes said that any employer suffers prejudice in the proper conduct of its business in having to employ people who break rules. He said that no employer should have to conduct it business in the context of employees who smoke against non-smoking policies.

Mr Forbes said that it was open to Imlach C. to find that, an employee who was brought to the brink with a final warning and then breaks the rules, constitutes some prejudice to the proper conduct of the business.

Having considered the submissions on this ground of appeal, we have arrived at the conclusion that it was reasonably open to the Commissioner to make the finding he did, in the context of the submission put to him by the applicant, and therefore this ground of appeal is rejected.

GROUND 5

Mr Cooley submitted that the Commissioner erred in fact and/or at law in stating that the applicant was late for work on 7 June 1996 and further, in concluding that Mr Fairfield's actions:

"... left something to be desired on his part in view of the Company's [reasonable] policy of requiring notice of absence prior to shift starting time."

It was conceded by Mr Cooley that Mr Fairfield was late on a particular day, however, he asserted that Mr Fairfield did notify the respondent, but he conceded that the notification may have occurred after the required shift starting time. Mr Cooley said Mr Fairfield was unable to contact the respondent prior to 7.00 am, but notification did take place after the shift starting time and at the earliest available opportunity.

Mr Forbes, for the respondent, agreed that Imlach C. was wrong in stating that 7 June 1996 was the day Mr Fairfield was late for work. He said the incident occurred sometime between 12 March 1996 and 7 June 1996.

Mr Forbes said that there was a concession that Mr Fairfield was late on the day in question and he did breach the company policy.

We are prepared to accept that the Commissioner did make an error in stating that it was 7 June 1996 that the lateness occurred, but, we are of the view that it was of minor significance overall and it is not sufficient to warrant us overturning the decision.

We note that it was conceded that Mr Fairfield was late to work on an unspecified date and he did not notify the respondent prior to the shift starting time, therefore it was reasonably open for Imlach C. to arrive at the conclusion that Mr Fairfield's actions:

"... left something to be desired".

For those reasons this ground of appeal must also fail.

GROUND 6

It was the appellant's submission that the Commissioner erred in fact and/or at law in placing undue weight on the applicant's previous warning for the abuses in relation to taxi use.

Mr Cooley said that he did not contest the formal warning given to Mr Fairfield, in relation to the misuse of taxis. He said Mr Fairfield admits and regrets the inexcusable action in relation to that matter.

Mr Cooley said that, in relation to this point, the final warning was of a distinctly different nature and character to the event that the applicant was actually dismissed for and it was on that basis that he contended that the Commissioner failed to have concern for the merits of the reason for which the applicant was actually terminated.

During the course of his submission, Mr Forbes drew our attention to the original transcript10 and the evidence given by Mr M J Howell, Operating Superintendent, who was the author of the final warning document.

The question was:

"As you were the author of this document what do those words mean to you?"

And he says:

"Quite specifically, I've had involvement in issuing warnings and final warnings on a number of cases before. I'm very specific that when we do issue a warning or a final warning I read from the discipline procedures where it says that any further misdemeanour may result in your dismissal."

He goes on, he says:

"We're very specific to point out that it does not necessarily have to be a misdemeanour of the same nature that caused the person to be at the final warning. So it is any other breach of company policies, procedures or standards."

And then he's asked:

"And it is your view that that was clearly known to Mr Fairfield?"

He says

"I made very clear steps that it was known to Mr Fairfield and his union representative at the time and in fact that was acknowledged by both Mr Fairfield and his union representative."

Next question:

"So it was incumbent upon Mr Fairfield to be squeaky clean for the next two years as far as work performance. Would that be an accurate description?"

He said:

"Yes it would."

Next question:

"And you believe he left in no doubt whatsoever that that was the case?"

He said

"None whatsoever."

In our view it was certainly open to Imlach C. to place some weight on the final warning given to Mr Fairfield, and we do not agree that the reason for his dismissal must in some way relate to or be connected with the incident for which he received the final warning.

In our view Imlach C. considered the merits of the reason for dismissal, however, he was also at liberty to consider those reasons in the context of the employee being subject to a final warning notice.

This ground of appeal is rejected.

CONCLUSION

We are satisfied that Imlach C. did not exercise his discretion in an improper way or act upon any wrong principle or allow extraneous or irrelevant matters to guide him. Nor did he exclude any material considerations in the course of exercising his discretion.

Commissioner Imlach was best placed to make the decision he did as he heard from witnesses who gave evidence under oath and was in a position to assess the value of their evidence.

We note that in his decision Imlach C. arrived at the conclusion that Mr Fairfield was well aware of the respondent's policies and attitudes, but found Mr Fairfield's "lack of memory about a number of them ... unconvincing", a conclusion that was open to him on the evidence.

For all the foregoing reasons we are not prepared to interfere with the original decision and pursuant to section 71(13)(a) of the Act we confirm Commissioner Imlach's decision arising out of application T6247 of 1996.

 

F D Westwood
PRESIDENT

Appearances:
Mr P Cooley for The Australian Workers' Union, Tasmania Branch
Mr J Forbes for Pasminco Metals-EZ

Date and place of hearing:
1996
October 16
Hobart

1 T6247 of 1996
2 Exhibit L.2 in original hearing
3 Exhibit L.6 in original hearing
4 Exhibit K.6 in original hearing
5 Transcript Page 40 @ line 8
6 Transcript Page 40 @ line 19
7 Exhibit K.5 in original hearing
8 Exhibit K.4 in original hearing
9 Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v. Gozzi C
10 Transcript Page 101 @ line 34