WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES JAMES LESLIE BUTTERFIELD, APPLICANT v. POLLOCK NOMINEES PTY LTD , RESPONDENT CORAM COMMISSIONER P E SCOTT DELIVERED TUESDAY, 10 OCTOBER 2000 FILE NO/S APPLICATION 604 OF 2000 CITATION NO. 2000 WAIRC 00829 __________________________________________________________________________ Result Application alleging unfair dismissal upheld and Order for reinstatement issued Representation Applicant Mr B Stokes on behalf of the Applicant Respondent Mr A Beer on behalf of the Respondent __________________________________________________________________________ Reasons for Decision. 1 The applicant claims that he has been harshly, oppressively and unfairly dismissed from his employment with the respondent and seeks reinstatement without loss of entitlements. 2 The Commission has heard evidence from the applicant and from Timothy Bruce Shirley, whose evidence was limited but corroborated the evidence of the applicant. There was no evidence called for the respondent. The applicant’s evidence was largely unchallenged in cross- examination and where it was challenged, has not been undermined. I accept the evidence of the applicant as being true and correct. Accordingly, I make the following findings of fact. 3 The applicant commenced employment with the respondent on 9 September 1994 as a boilermaker welder. The applicant does not have a trade certificate and has not done an apprenticeship in that trade. One of his reasons for seeking reinstatement is that upon completion of 6 years of work as a boilermaker welder, the applicant is able to apply for a trade certificate, with the support of his employer. The applicant wishes to pursue that course of action. 4 The applicant performed work for the respondent both at sites in the metropolitan area and at various mine sites throughout the state. In the period of employment, the applicant had some 48 days sick leave out of an entitlement of 50 days. The applicant suffers from migraine headaches and sinusitis and says that these illnesses explain some of those absences. There was no evidence to suggest that these were not genuine illnesses. In most recent times of his employment, the applicant’s hours of work were 6.00am to 6.00pm Monday to Friday and 6.00am until between 1.00 and 3.00pm on Saturdays, with occasional Sunday work. Exhibit 4 which is a number of the applicant’s recent pay slips indicate gross earnings for the weeks commencing 1 January 2000, 29 January 2000, 4 March 2000 and 11 March 2000 as being $933.40, $1,001.23, $1152.28 and $1152.28 respectively. Mr Beer for the respondent acknowledges that these were typical of the payments made to the applicant in the time that he has been involved in payment of the respondent’s employees. Therefore at the time of termination, the applicant worked approximately 60 hours per week on a regular basis. There was some evidence about methods of payment to the applicant and other employees which were unorthodox to say the least and of employees drinking on the work premises and during working hours. However, these matters are not relevant in any way to the circumstances leading to the applicant’s dismissal. 5 For some time prior to the termination the applicant had been working at and from the respondent’s Jackson Road site. Prior to the termination of his employment the applicant wanted to take the week of 13 April 2000 off, as 13 April was his birthday. He told his supervisor, Terry Nuttall, of his intention. Mr Nuttall advised him that there was urgent work required and so the applicant did not submit any annual leave application. However, it was agreed that he would take Thursday, 13 April off. He worked on the Monday, Tuesday and Wednesday. On the Wednesday night, he had some friends around to his home and had some alcoholic drinks. He slept in the next morning and did not arrive at work until 7.30am, some hour and a half after his usual starting time. He denies that he was hung over or effected by alcohol. He was advised by Mr Nuttall that Greg Mellor, the manager of the business, had asked “why is he late” to which Mr Nuttall advised the applicant he replied “it’s ok, I was not expecting him in today”. The applicant worked as normal for the rest of the day. That night some friends turned up unexpectedly and again the applicant had some alcoholic drinks, and he again slept in the next morning. His wife dropped him off just before 8.00am, some 2 hours late for work. By this time Adrian Wilson, another boilermaker welder had been allocated to the work on a particular scraper that the applicant had been doing for some time. Upon the applicant’s arrival at the Jackson Road site, he was told by Mr Nuttall to pack his tools up and to go to the Kalamunda Road site and to see Bill Campbell, the supervisor there. The applicant did so. 6 On arrival at the Kalamunda Road site, the applicant saw Bill Campbell who told him “there is no work for you here. Do you want your missus to come and pick you up?” Mr Campbell telephoned Mr Beer to arrange for the applicant’s pay to be made up and told the applicant to go and pick up his pay from the company’s Welshpool Road office. The applicant’s wife collected him and his WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 80 W.A.I.G. 5634 tools from the Kalamunda Road site and took him to the Welshpool Road office where he was given a cheque for his final pay. The applicant was paid 1 week’s pay in lieu of notice rather than the 5 weeks required by the Workplace Relations Act. The respondent acknowledges that this additional 4 weeks is due and payable. The applicant was paid all other entitlements. The respondent provided to the applicant an Employment Separation Certificate and a statement of service both of which say that his employment was terminated due to “shortage of work”. 7 During the course of his employment with the respondent, the applicant was never warned that his job was in jeopardy, he was never counselled about his performance, his punctuality or absenteeism. The only occasion upon which any such issue was raised was when Mr Campbell advised him in early 1999 that he should pull his socks up regarding his attendance. However, the applicant says that there was no warning that his job was in jeopardy. The applicant challenges that there was such a shortage of work and he estimates that at the time of his termination there was at least 3 months work available for someone of his classification. He also says that the respondent engaged another boilermaker welder, Fred Shortland, at the Kalamunda site on Monday 10 April 2000. Mr Shortland was doing the same work as the applicant. 8 The applicant seeks reinstatement and says that there is no reason why he could not work with the respondent’s other employees and supervisors. He says that there were no harsh words between him and Mr Campbell when he departed and, although he gave evidence of a disagreement with Mr Campbell a number of years ago, he indicated that there was no particular difficulty between Mr Campbell and himself at the time of termination. 9 The evidence of Timothy Bruce Shirley confirms that the applicant undertook 1 week’s work for Mr Shirley in the period of his unemployment and received $750.00 for that week’s work. Mr Shirley was unable to employ the applicant on a full-time basis as he had a full complement of workers himself and that the applicant’s employment with him had been as a relief worker. He also gave evidence that the applicant was a good worker. 10 As I have noted earlier, I accept the applicant’s evidence, there is no evidence to the contrary. In all of these circumstances I find that the applicant has been harshly, oppressively and unfairly dismissed from his employment. 11 The first question is whether or not the applicant’s employment was terminated on account of a shortage of work and that, in effect, he was made redundant. I am satisfied, on the basis of the applicant’s evidence, that there was at least 3 months work there for a boilermaker welder, and that another boilermaker welder had been employed only 4 days before his termination of employment. Accordingly, the reason given for the termination is not supported by the material before the Commission and I find that it was not the true reason for termination. 12 It would appear then that the applicant’s employment was terminated on account of his being late on the day of termination and perhaps on the previous day. It is true that employers generally require their employees to be reliable, that there are often concerns if an employee has a record of absenteeism, on account of illness or otherwise, and this combined with a lack of punctuality may justify an employer taking remedial action. However, in this case, there is no evidence that the applicant was counselled, beyond being told in early 1999 to pull his sock up regarding his absenteeism. There is no evidence that he was ever warned that his job was in jeopardy for reasons of punctuality or absenteeism or for any other reason. 13 In all of the circumstances, for an employee of almost six years standing, who has been working approximately 60 hours per week in the recent past and similar, if not the same hours, over most of his employment, it could not be said that the applicant was given a fair go by the respondent in deciding to terminate his employment. If the reason for dismissal was the absenteeism or the lateness to work, these do not justify an employee simply being told there is no work for him. There is an obligation on the employer to have made the applicant aware of its intentions and provided him with a reasonable opportunity to meet the standards which the respondent required. It is important to note that notwithstanding that the applicant says that he believes employees should be entitled to take their birthdays off, employees are obliged to attend to work unless they are ill or have other good reason, and that under normal circumstances they should advise there employers of their absence as soon as they are able. Failure to do so would not normally justify an employer dismissing an employee without warning in those circumstances. 14 Accordingly, I find that the applicant has been harshly, oppressively and unfairly dismissed from his employment with the respondent. 15 The next question is the remedy to be applied. The applicant seeks reinstatement and there is no evidence that reinstatement would not be practicable. On the contrary the applicant says that he could work together with the respondent and re-establish working relationships. The respondent has not challenged this. Although Mr Beer for the respondent says that the respondent would not be keen on reinstatement, this does not make reinstatement impracticable. 16 Accordingly, I find that the applicant ought be reinstated in his position. With reinstatement goes the requirement that the applicant should be no worse off, on account of his termination of employment. Therefore, he is to be treated as if his employment was continuous and is to be paid for all wages lost during the intervening period. This loss should cover his normal weekly earnings for the period of unemployment less the week’s pay in lieu of notice already paid, and less the amount of $750.00 which the applicant earned in alternate employment. The applicant is to calculate the amount of wages to be paid to him and provide this information to the Commission. The respondent will be invited to comment on the accuracy or otherwise of such an amount. 2000 WAIRC 00879