WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. No. 632 of 1985. Between Dennis Muzzell, Applicant and Grace Brothers International, Respondent. Before Mr Commissioner J.F. Gregor. The 1st day of November 1985. Reasons for Decision. (Given extemporaneously at the Conclusion of the hearing, taken from the transcript of proceedings as edited by Mr Commissioner J.F. Gregor.) THE COMMISSIONER: This is an application by Dennis William Muzzell which is mounted under section 29 (b) (i) of the Industrial Relations Act 1979 and it arises from the termination of his services by his employer, Grace Brothers International, on 7 August 1985. From the evidence it appears that Mr Muzzell had been employed on 8 October 1984 as a sales consultant. He started his service with the company working closely with the sales manager and for a period of three months or so he attended visits with clients and learnt the operations. He also during that period, particularly in July, became aware, as other persons employed by the company did, that a training course was to be run. The course was to consist of eight sessions and was to take place outside of work hours, starting at 5.15 p.m. and lasting for an hour. He attended the first three sessions of that course but, on the evidence, he was not satisfied that the course was of great value to him. He had advised his supervisor, Mr Williams, in the week prior to the con- tinuation of the course on 6 August 1985 that he would not attend the course. On 6 August he was out, going about his duties, when the management became aware that he was not going to attend the course session scheduled for that evening. Contact was made with him and he was told to come back to the office and after a discussion with Mr Williams was instructed to attend. Mr Muzzell says that there was no indication of a reper- cussion if he did not attend. Unfortunately Mr Williams was not available to give evidence to support an assertion by the respondent that Mr Muzzell had been warned of some dire consequences if he did not attend. However in the event Mr Muzzell did go to the room where the course was taking place. He looked inside and Says that he could not see any seats available and as the session was almost finished in any case, he went home. These events were brought to the attention of Mr Mitchell, who I think is the senior executive of the operation in Western Australia. He, after making inquiries as to the facts in the matter, reflected on what ought to happen and decided after a mature considera- tion that termination ought to be effected. The exercise of termination took place on 7 August 1985 and on the evidence Mr Muzzell was paid all moneys due to him under his contract of service. That included two weeks' pay in lieu of notice and two weeks' holiday pay. The Commission under the law that must operate is required to, in accordance with the dicta in the Federated Brick, Tile and Pottery Union v. Bristile Limited (62 WAIG 2962), decide the case on the balance of proba- bilities. In matters of summary dismissal that is well settled in the case law that the onus of proof is on the applicant. [Russell v. Techenoff (65 WAIG 531).] A further case of relevance is the P.C. Kerr case [Douglas Ratcliff v. P.C. Kerr (63 WAIG 1819)]. Basically the P.C. Kerr case, decided by the Full Bench of this Commission, says that the Commission should not substitute its view for the view of the employer unless it is manifest that some sort of injustice has been done. I am required to apply those cases to the facts in this matter. There is another issue though that arises from a termination of services in the instant circumstances and 2308 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 65 W.A.l.G. that is a question which has been decided by the South Australian, Industrial Court in the G. J. Coles case, [G. J. Coles and Company Ltd v. Howie H (47 SAIR 288)] where the President, Mr Justice Olsson, was of the view that a termination of service given against a background where no warning of the behaviour complained of had been given in the past could be found to be unfair but not unlawful. Obviously in this case on the evidence that has been put to me there is no question that this termination was lawful. The termination was effected within the terms of the contract of service and, on the basis of the P.C. Kerr case (Ibid) the Commission would not interfere. The question to be answered though goes to whether in this day and age in the circumstances which prevail in this case should an employee's services be terminated without giving a warning for improvement of or change in the behaviour complained upon. It seems to me in these circumstances that the employ- ment relationship which existed between the parties was not an abnormal one. Mr Muzzell had been working for the company for 10 months, he had been employed in circumstances where the company had decided to offer him employment notwithstanding that he had given information which could have led to it not employing him. He had been given support in training by the company and in return he had started to make sales, in accordance with the evidence he has given, of a reason- able level. So from both parties point of view the company was giving Mr Muzzell an extended period to settle into the work and Mr Muzzell was accepting the challenge given by way of making the sales necessary. He obviously did not like the training scheme which was being run. That is a luxury that perhaps was not available to him, the company does have an implicit right under the contract of service to ask employees to take part in training activities. That is not to say that employees have to like the training that is being given. In fact, some training systems benefit from critical analysis from the participants. However, the situation was that the contractual relationship was not an unusual one, the key issue being a disagreement over the question of training. Putting this all together it is my view that the company was entitled to terminate the contract of service as a matter of law but that it should have offered remedial advice to Mr Muzzell about the attendance at the training course. In terms of section 29 (b) (i), because that was not done, the termination can be said to be unfair while yet being lawful. I find that the termination, in accordance with section 29 (b) (i) was unfair. One then gets to the question of the compensation requested by the applicant. The dicta for the compensation in matters like this, is laid down in the Francis Tak Lau Kwa case [Francis Tak Lau Kwa v. Brett Stuart Smartt and Christopher Phillip Ryan (64 WAIG 858)] and in applying the criteria set out therein, I have some difficulty with this issue. With the payments which have been given on the termination of service totalling about four weeks in pay, two weeks being pay in lieu of notice, which may have been withheld, and two weeks being for annual leave on a pro rata basis against the legal requirement for a company not to pay such leave until the completion of 12 months' service, it appears to me that payment for four weeks has been made already which may well not have been paid. In this event of applying the criteria of the Tak Lau Kwa (Ibid) case, I would award no additional compensation to that which has already been allowed voluntarily by the employer. However, in respect of the attempts by Mr Muzzell to obtain further employment, he expresses a concern that if the real circumstances of his dismissal from Grace Brothers are not made known to companies to which he applies, he may be barred from employment. I intend to make a Declaration that the termination was unfair and an Order that the company provide to Mr Muzzell a certificate of service such that his termination or the completion of his contract of service should not be an impediment to his receiving further employment and he would have that document to present. This Commission cannot, in its order, compel a company to use a particular form of words in such a document. However, in giving this order, I would ask that the company write an appropriate document which would be of assistance to Mr Muzzell. In the event that he is not satisfied with the wording it can be settled between the parties, with the assistance of my associate. That is my decision in this matter. Order accordingly. BEFORE THE