Russell Hill v Ridgee Didge Limited [2006] NSWIRComm 33

Industrial Relations Commission of New South Wales

CITATION: Russell Hill v Ridgee Didge Limited [2006] NSWIRComm 33

PARTIES: Russell Hill Ridgee Didge Limited

FILE NUMBER(S): IRC 4327 of 2005

CORAM: Harrison DP

CATCHWORDS: Application for relief from unfair dismissal - poor work performance - lack of punctuality - unsafe work practices - failure to respond to instruction - failure to heed warnings. Held - termination of employment not harsh, urneasonable or unjust - application refused.

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 31/01/2006

DATE OF JUDGMENT: 02/08/2006

EXTEMPORE JUDGMENT DATE: 01/31/2006

APPLICANT Counsel Mr J Wormington LEGAL REPRESENTATIVES:

RESPONDENT Mr D Campbell

JUDGMENT:

- 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP Wednesday, 8 February 2006

Matter No IRC 4327 of 2005

Russell Allan Hill and Ridgee Didge Limited

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION [2006] NSWIRComm 33

1 Mr Russell Hill ("the Applicant") was employed by Ridgee Didge Limited ("the Respondent") as a landscape labourer from 5 August 2002 to 11 August 2005. 2 The application in this matter was filed on 18 August 2005 and subject to conciliation and direction proceedings on 20 September 2005. Mr J. Wormington, Counsel appeared with the applicant. Mr D. Campbell appeared on behalf of the respondent with Mr J. Relf and Mrs R. Relf. 3 Conciliation was unsuccessful resulting in directions to bring the matter to arbitration.

4 The matter was subject to arbitration on 31 January 2006. 5 Mr Wormington brought evidence from the applicant. 6 Mr Campbell brought evidence from Mrs Rosemary Relf, Administration Officer of the Respondent; Mr Jason Relf, Manager of the Respondent; Mr Bruce Austin, Supervisor of the Respondent; and Mr Heath Harvey, Head Supervisor of the Respondent. 7 An ex tempore decision was delivered at the conclusion of proceedings on 31 January 2006, now confirmed in formal judgment. THE EVIDENCE

8 The Applicant's evidence is that he was employed for three years as a landscape labourer on a permanent casual basis and worked on average 38 hours per week for the six months prior to his termination. 9 The Applicant agrees that he was given a letter of warning on 14 March 2005, however, contends that "to this day I don't know what it was about". 10 The Applicant denies that he received any verbal warnings between the correspondence of 14 March 2005 and the termination of his employment. His evidence states that " I was never told what I was supposed to be doing wrong or what I was doing that was effecting the other employees". 11 The Applicant agrees that there was a toolbox meeting held but was unsure as to the date. He agrees that he was spoken to by Rosemary Relf and Jason Relf regarding "picking up his act" and that he replied "yes", however, he denies anything being mentioned about other employees complaining about him and was not aware he had done anything wrong. 12 The Respondent's evidence is that the Applicant's work performance had been acceptable up until pre-Christmas 2004. 13 The evidence of Mrs Relf is that between January 2005 and March 2005 the supervisors complained about the Applicant's work performance and refusal to work as instructed. 14 Mrs Relf deposed that due to the continual complaints it was decided to give the Applicant a written warning dated 14 March 2005 (Ex 3 Annex. 1). 15 The letter of 14 March 2005 states: "your position in this company's employment is in jeopardy by way of your attitude and performance of duties. This is having a profound effect on other employees and is totally unacceptable by us. We wish you to address this problem and if we can be of assistance please free to discuss it with us." 16 The evidence of Mrs Relf is that the Applicant was afforded an opportunity for discussion in the event he required further clarification and for that clarification to be in private to avoid any embarrassment to him. Mrs Relf deposed that the Applicant made no request for any discussion or clarification. 17 The evidence of Mrs Relf is that a toolbox meeting was held on 22 April 2005 and recorded in the toolbox meeting book (not available in evidence). At that meeting Mrs Relf and Jason Relf spoke to the applicant informing him that there were complaints about his work performance from other employees, including a preference not to work with him. 18 Mrs Relf deposed that the Applicant was asked if he had any problems in or out of work to which he replied "no". The Applicant was asked to "pick up his act" to which he replied "no problem" and the meeting finished. 19 The evidence of Mr Relf confirms that of Mrs Relf and details the problem with the applicant's work performance (Ex 4 para 3) in the following terms: · On job sites he has left cement uncovered to cause them to get wet and set · Caused a wall to collapse · Handled equipment in a manner that was dangerous eg. Turned off electrical switch with a shovel · Not following instructions · Text messaging while working · Exposing electrical leads to pools of water 20 The evidence of Mr Relf is that the Applicant failed to amend his work performance subsequent to the warning. Mr Relf deposed that Mr Austin ultimately advised that he could not continue to work for the Respondent unless something was done about the Applicant's work performance. 21 The evidence of Mr Relf is that he moved the Applicant to Mr Harvey's crew to satisfy himself that there was no personality clash and to afford the Applicant an opportunity to work in a different environment. 22 Mr Relf deposed that he asked Mr Harvey to monitor the Applicant's performance but did not give the Applicant a further warning as he saw this as unnecessary given the earlier advice and wanted to determine whether it was the Applicant's failure or a personality issue. 23 The Respondent brought evidence from Bruce Austin (Ex 4 Annex.1) and Heath Harvey (Ex 4 Annex.2) confirming the complaints regarding the Applicant's work performance and failure to follow directions. 24 Both Mr Austin and Mr Harvey confirmed the evidence of Mr Relf. Mr Austin and Mr Harvey deposed that the Applicant constantly failed to observe safety requirements of putting electrical leads on properly provided stands, deposing that when told he would comply then fail to the next day. 25 Mr Harvey deposed that the Applicant climbed onto a partially built rock wall causing it to collapse in full knowledge that this practice was prohibited on safety and efficiency grounds. 26 Mr Austin put that the Applicant was constantly late for work. 27 The evidence of Mr Harvey is that in the final weeks of the Applicant's employment he had observed him operating a conveyor switch with a shovel. 28 The allegations of conduct are not disputed. Mr Wormington argued strenuously that the Applicant should have been given a further warning after the written warning of 14 March 2005, asserting that the toolbox meeting took place prior to that date. 29 Mr Campbell put that the Applicant had received sufficient warning in the form of the correspondence of 14 March 2005 and the directions of supervisors on a daily basis which made clear to him that his work performance was not satisfactory. 30 Mr Campbell submitted that the Applicant had been afforded ample opportunity to improve his work performance and had failed to do so. CONCLUSION

31 Having considered the evidence I am compelled to the conclusion that the termination of the applicant's employment was not harsh, unreasonable or unjust so as to warrant intervention. 32 Whilst it might be argued that the employer could have issued a final warning I am satisfied that Mr Hill was given clear communications that his work performance was a threat to his continued employment. The fact that Mr Hill sought no discussion or clarification in respect to the warning letter of 14 March 2005 is indicative of inadequate response on his part. 33 The safety issues of operating the conveyor switch with a shovel and continually failing to properly elevate electrical leads constitutes grounds for termination of employment in themselves. 34 The application for relief is refused. Matter No IRC 4327 of 2005 is so concluded. oo0oo

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