PR945279 Note: An appeal pursuant to s.45 (C2004/3129) was lodged against this decision - refer to Full Bench decision dated 21 October 2004 [ PR952600 ] for result of appeal. PR945279 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Garry Ashlin and Forestry Tasmania (U2001/5560) COMMISSIONER HINGLEY MELBOURNE, 2 APRIL 2004 Termination of employment. DECISION [1] This was an application, pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) by Mr Garry Ashlin (the applicant) in relation to the alleged harsh, unjust or unreasonable termination of his employment at Forestry Tasmania (the respondent). [2] Since the matter was not resolved by conciliation a Certificate issued on 23 April 2003. The parties undertook mediation in the Supreme Court of Tasmania which proved fruitless, and as a consequence became the subject of a common law action. The applicant's legal representative indicated that while it may take months to get a trial listing it was his preference the Supreme Court action be finalised first (17 June 2003). [3] Notwithstanding the above preference, in consultation with the parties, directions were issued by the Commission and the matter listed for hearing. The hearing took place in Hobart on 16 March 2004. [4] Mr B McTaggart appeared with leave on behalf of the applicant. [5] Mr J McDonald appeared with leave on behalf of the respondent. Witnesses. [6] The following witnesses gave sworn evidence during proceedings: Mr G J Ashlin Applicant Ms L Burgess Human Resources Manager Mr S R Davis Deputy District Forester Mr A J Hardy Supervisor. Submissions on behalf of the applicant. [7] It was submitted that "in terminating the applicant's employment the respondent relied upon an alleged final warning" (Exhibit A1) letter dated 30 May 2001 but not delivered until 19 July 2001, wherein it was alleged the applicant failed to adhere to provisions of a return to work program. It was said that the respondent erred in concluding the letter constituted a final warning or any warning at all. [8] Alternatively it was submitted that no warning ought to have been given to the applicant as: - The return to work program was either not in existence or it was doubtful if it was in existence at the relevant times (9 February 2001 and 17 April 2001). The program was never discussed or explained until the investigation of the alleged breaches. The program was never certified as continuing for twelve months after the first two months as recommended by the author. It was never reviewed three monthly as recommended by the author. - The applicant had been cleared by his general medical practitioner at all relevant times as having no restriction on his capacity. - The respondent erred in its findings that the applicant operated an excavator outside his employment on rough and uneven ground, breaching a return to work program at the relevant time. - The respondent erred in concluding that an incident of 17 April 2001 constituted a breach of the return to work program. The applicant attended the worksite at the instruction of a supervisor. The piece of wood lifted was not heavy and his action did not constitute repetitive lifting. [9] If the applicant did receive a warning then it was not justified. [10] The conduct must not have been considered severe from the delay on the respondent's part; 1. The respondent first discussed the matter with the applicant on 2 June 2000 but did not take action until 23 March 2001. 2. The respondent delayed delivering the letter of 30 May 2001 until 19 July 2001. [11] If the applicant did breach the return to work program, the breach was inadvertent. [12] The respondent did not provide the applicant with training in another field as it suggested it would following the meeting on 2 June 2000. [13] The respondent's investigation breached procedural fairness as the applicant was not provided with the investigator's report or advised of its contents. [14] If a warning was appropriate the respondent did not seek the applicant's response. [15] The respondent relied upon a warning given by letter of 21 May 2001 in relation to his conduct at the Kermandie Hotel when a warning should not have been given. [16] It was wrongly alleged that the applicant refused to sign a return to work plan. [17] The respondent relied upon the applicant's use of its vehicles without permission for his own private purposes. The applicant contends that there were good reasons why the respondent ought not to have terminated his employment in this regard and he never in any case received a warning in this regard. He was not given opportunity to respond to the penalty. [18] The applicant denies he made verbal threats during the meeting which the respondent claims led to a conclusion that the employment relationship had broken down. Submissions on behalf of the respondent. [19] The applicant had a long-running involvement with various rehabilitation and return to work programs with various physical and functional restrictions applying. The respondent provided extensive rehabilitation assistance and documentation to assist recovery. [20] Ms Vicki Tabor was his rehabilitation provider, and the applicant's injury history and her advice demonstrated that there was a reluctance on the part of the applicant to adhere to the various restrictions. A failure to follow instructions, and to adhere to various physical restrictions are recurring themes in the respondent's defence. [21] Forestry Tasmania was sufficiently concerned about the applicant's non-conformance, particularly in relation to his activities with a local logging company, to convene a meeting with him and his union representative in June 2000. It was clearly put to him that activities performed at this local company, such as driving an excavator was contrary to the restrictions of his rehabilitation program. A report from an orthopaedic surgeon was discussed with him at this meeting. A consequence was the issuing of a warning to the applicant to adhere to the restrictions and limitations within his rehabilitation program. The applicant was found again to be operating an excavator and collecting firewood at the local logging operation and he was sent a letter in March 2001 notifying him of a meeting to discuss this. A consequence of this meeting was a further admonition followed by a formal warning by letter of 30 May 2001, though advertently not delivered until July 2001. Also referred to in the letter was the action of the applicant lifting a log while subject for some time to lifting restrictions. [22] It was submitted that the applicant indulged in abusive remarks to a senior officer and about his employer in a hotel on 6 April 2001 and 27 April 2001. These matters were put to him at a meeting with his union representative and no further correspondence or discussion was entered into by either the applicant or his union representative upon the issuing of a formal warning. [23] The applicant at the relevant time used a Forestry Tasmania vehicle without authorisation and admits to carrying an unauthorised passenger. In his statement he refused to provide information regarding the circumstances surrounding his behaviour. His own vehicle was available at the time. [24] On Tuesday 31 July 2001 he left the Cemetery Road complex without the specific permission of supervisor Mr Alan Hardy. The applicant manipulated the circumstances by offering to Mr Swan to pick up any materials required while in Hobart. His own vehicle was available at this time. [25] At a meeting of 8 August 2001 the applicant's behaviour and conduct was inappropriate and indicative of his hostility to his employer. Conclusions. [26] I am satisfied on the evidence and all that was before me, that the applicant was uncooperative in observing restrictions placed upon him by rehabilitation and return to work programs (Tabor report p.4; transcript Ashlin PNs 193, 194, 298, 299, 390, 406 et al). [27] I am also satisfied that the applicant was at all relevant times aware of his physical and functional limitations and that Forestry Tasmania management were cognisant and concerned therewith. [28] Whilst it was contested as to whether there were one or two incidents at the Kermandie Hotel, it was conceded that he reacted belligerently towards his senior officer in public, because he thought he was; "being a smart arse". It appears on the evidence his belligerence was misplaced, but in any event it would have reflected adversely on Forestry Tasmania, his employer and was both inappropriate and unacceptable (transcript PN 427). On the applicant's own version of events I accept that a formal warning would not have been inappropriate. It was conceded in cross examination that the applicant said this "because he (Mr Davis) knew that you were restricted to duties at the Cemetery Road complex? ---"Yes" (ibid PN 419). It also confirms that he himself was aware of his ongoing restrictions. [29] The evidence is clear that on 30 July 2001 the applicant took a Forestry Tasmania vehicle for his own purposes without authorisation and later conveyed a passenger (his wife) unauthorised, when his own vehicle was available, on his estimate 120 meters away (ibid PN 638). He was absent possibly "half an hour" (PN 543). He left the complex he conceded without authorisation (PN 491). [30] It was said that he "acted in the agony of the moment because it was an urgent matter involving the safety of his wife" (PN959). I am satisfied that he did regard it as an urgent matter and that it involved the safety of his wife, but that he was aware at that time that the immediate danger had past and his wife was safe at home. He had time to seek authority to leave work for urgent personal reasons and use his own vehicle. The agony of the moment was put as mitigating circumstances for his unauthorised actions, but he was subsequently less than forthcoming about the urgent reasons when confronted by management. [31] He conceded in cross examination that he was aware that it had always been Forestry Tasmania policy that an employee must ask to use a vehicle (PN 497) [32] I am satisfied that he should have reconfirmed with his supervisor Mr Hardy, his absence for the medical appointment in Hobart, but that he chose not to and told instead Mr Doyle (a subordinate supervisor (transcript PN 686)) presumably stating that it had been previously approved in June. [33] The applicant gave evidence that Mr Swan gave him permission to take his vehicle when once again the applicant's vehicle was readily available. [34] It is also clear on the evidence that the applicant was aware of his first formal warning. This warning made clear that "if you breach any of Forestry Tasmania's policies of procedures then you will be further counselled, which could lead to the termination of your contract of employment with Forestry Tasmania." (dated 21 May 2001). [35] A letter from Ms Lily Burgess, the HR Manager dated 30 May 2001 referred to allegations regarding activities not permitted under the return to work program (i.e. lifting wood on 17 April 2001 and driving an excavator on rough ground 9 February 2001) and gave another warning as follows: "Should you break any conditions of the Return to Work Plan, or any Forestry Tasmania policy or procedure, you will leave me with no alternative other than to consider serious disciplinary action, including termination." This letter was not received until 19 July 2001. This was less than a fortnight before the breaches of policy and authority which occurred on 30 July 2001 and the 31 July 2001 trip to Hobart for his medical appointment in Mr Swan's vehicle. [36] In respect to the use of an excavator on the site of the local logging company on 9 February 2001, I preferred the evidence of Mr Hardy (Exhibit R5 paras 2 and 3). I find it was a breach of instructions and of the rehabilitation limitations and would not have been in my view inadvertent. The applicant was well aware of his injury history and the physical limitations attaching thereto. [37] I am satisfied on the evidence that the applicant was a repeat offender as submitted by the respondent. He was uncooperative in adhering to physical and functional restrictions placed upon him. He was hostile to authority as demonstrated by his aggressive behaviour to Mr Davis at the Kermandie Hotel and unaccepting of authority in his unauthorised absence and use of Forestry Tasmania vehicle and the non-confirmation with Mr Hardy of his medical appointment in Hobart as was appropriate. [38] I accept the evidence of the applicant that he felt harassed in the circumstances of his job being in jeopardy, at the meeting of 8 August 2001 chaired by Ms Burgess. I accept he may have been verbally aggressive as a consequence but that his words were not intended as a physical threat, rather that he was facing termination of his employment and said words to the effect of; "You can sack me but `ill get youse" , meaning that he would seek legal or unfair termination remedy via the Industrial Relations Commission. In that sense since he was being represented by his union at the meeting, he may have felt frustrated and his behaviour if intemperate is probably understandable, if not excusable. [39] However I am satisfied that the respondent had a valid reason to terminate the applicant's employment. Statutory Law. [40] Section 170CG(3) of the Act provides as follows: "(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and (da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (e) any other matters that the Commission considers relevant." [41] Additionally s.170CA(2) requires that the Commission "ensure(s) that, in the consideration of an application in respect of a termination of employment, a `fair go all round' is accorded to both the employer and the employee concerned." [42] In Liu and others v Windsor Smith , the Full Bench (Giudice J, Polites SDP and Gay C [Print Q3462] 13 July 1998) noted that in respect of s.170CG(3); "Whether there was a valid reason for the termination is only one of four separately specified matters which the Commission must now have regard to. The Commission must also have regard to any other matter it considers relevant. There is no causal connection between a finding that there was no valid reason for the termination and a conclusion that the termination was harsh, unjust or unreasonable. In summary, the question of whether there was a valid reason for termination of employment is no longer the critical question in determining whether the termination was contrary to the Act. Under the IR Act provisions if no valid reason existed then the applicant was prima facie entitled to reinstatement or compensation. Under the Workplace Relations Act 1996 the principal question is whether the termination was harsh, unjust or unreasonable. In considering that question the Commission is to ensure that a `fair go all round' is accorded to both the employer and the employee concerned." [43] Subsections 170CG(3)(da) and (db) of the Workplace Relations Amendment (Termination of Employment) Act 2000 came into effect as of 20 August 2001. s.170CG(3)(a). [44] I have found above that the respondent had a valid reason for the termination of employment of the applicant related to his conduct. s.170CG(3)(b). [45] I am satisfied on the evidence that the applicant was notified of the reason for the decision to terminate his employment. s.170CG(3)(c). [46] The applicant was called to a meeting with Mr R Gouck, Mr S Davis and Ms L Burgess. He was accompanied by his union representative Mr S McLean. At that meeting, he and his representative had an opportunity to respond to allegations about his alleged conduct. s.170CG(3)(d). [47] The termination of employment relates to unsatisfactory performance about which he had been previously warned as above. s.170CG(3)(da) and (db). [48] I was not addressed with respect to either of these subsections and in my view they are of no relevance. The size of the undertaking did not impact on the procedures followed and there was a dedicated human resource management represented in proceedings and in the procedures leading to termination of employment in the person of the Human Resources Manager Ms Burgess. s.170CG(3)(e). [49] It is clear on the evidence that the applicant's conduct over time led to the inevitable frustration and lack of confidence of the respondent and ultimate termination of the applicant's employment. [50] I find there is force in the submission on behalf of the respondent that by his actions the applicant destroyed the trust and confidence necessary in the employment relationship: "Forestry Tasmania has no confidence that Mr Ashlin will take instruction, has no confidence that Mr Ashlin will not place himself at risk of further injury, and has no confidence that Mr Ashlin will tell the truth. Mr Ashlin has consistently exhibited hostility towards his employer and its representatives." (Exhibit R1 Summary p.5) [51] Each concern of the respondent or each individual misdemeanour of the applicant may not of itself as an isolated circumstance have been necessarily a reason for termination of employment, but in relation to the latter it was a farrago of behaviours which was untenable. In considering a "fair go all round" I find that the termination of Mr Ashlin's employment was for a valid reason and was not harsh, unjust or unreasonable. [52] The application is dismissed. 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