Senathirajah Selvachanddran v Peteron Plastics Pty Ltd [1994] IRCA 192

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - employee transferred to less skilled duties - warnings - whether adequate opportunity to respond - whether termination harsh etc - compensation.

Industrial Relations Act 1988, s.170DE, s.170EA, s.170EDA and s.170EE.

Nicolson -v- Heaven and Earth Gallery Pty Ltd (Industrial Relations Court of Australia, Wilcox CJ, 20 September 1994, unreported)

SENATHIRAJAH SELVACHANDRAN -v- PETERON PLASTICS PTY LTD

NO. VI 1322 of 1994

Before: MURPHY JR

Place: MELBOURNE

Date: 19 December 1994

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI 1322 of 1994

BETWEEN:

SENATHIRAJAH SELVACHANDRAN Applicant

AND

PETERON PLASTICS PTY LTD Respondent

MINUTES OF ORDER

19 December 1994 Judicial Registrar Murphy

THE COURT ORDERS THAT:

1. A declaration that the termination of the Applicant's employment by the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act.

2. The Respondent pay to the Applicant the sum of $13,520 within 14 days of this date.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI 1322 of 1994

BETWEEN:

SENATHIRAJAH SELVACHANDRAN Applicant

AND

PETERON PLASTICS PTY LTD Respondent

REASONS FOR JUDGMENT (EX TEMPORE) (REVISED FROM DRAFT TRANSCRIPT)

19 December Judicial Registrar Murphy

Introduction

This is an application under section 170EA of the Industrial Relations Act ("the Act") whereby the Applicant seeks an order that the termination of his employment contravened Division 3 of Part VIA of the Industrial Relations Act. He also seeks compensation as a result of that termination. The Respondent did not appear in these proceedings, although on the Court file is a report of listing which indicates that the Respondent was present at a directions hearing on 18 November at which time the matter was listed for hearing on today's date.

The Duties

The Applicant gave evidence that he commenced employment with the Respondent in December 1990 and worked as a powder man and, in May of this year, he was listed to attend a seminar to receive some training for multi-skilling. Subsequently, he was advised that he was not to attend that seminar. He was told in a memo to commence working as a process worker/packer as part of the multi-skilling process. At that time he had already done some duties as a packer for short periods on a fairly regular basis, relieving other packers, but he indicated to the Respondent that he found the job on a full-time basis difficult because of the need for quick reflexes. He was required to sort reject bottles from the production line and pack the bottles into pallets.

The Warnings

He received a written warning from the Respondent on 6 July 1994 complaining about his performance and alleging that he had been verbally warned on a number of occasions. He denied that he had received a verbal warning prior to that, and he also said that on a number of occasions he had sought alternative duties because of the difficulties he was having, but he had been told that he had to continue to do the duties that he had been assigned in the May memo. Concerned about what was happening to him he saw solicitors, and they then wrote a letter to the Respondent on 12 July indicating that the move to a process worker was not a move to multi-skilling but was, for the Applicant, de-skilling, and noting the fact that he had been listed to attend a training seminar but subsequently that did not proceed.

The solicitors letter asked that he be restored to his position as a powder man within 7 days. On 14 July he received a further written warning. There was a discussion with an official of the company, Mr Carroll, who indicated that he must learn the duties or he would be sacked. At the time the Applicant denied that his performance was unsatisfactory, and he also told Mr Carroll that he was too old for the job. In the period after 14 July he gave evidence that the floor lady who apparently was in charge of allocation of duties to the various machine had been treating him unfairly. He raised that with her and sought other duties and sought to be treated fairly with other employees.

On 2 August he was called into the office of Mr Carroll and told that he was being terminated, and handed a letter of termination. That letter contains a number of additional items alleging unsatisfactory performance which the Applicant disputes. The Applicant gave evidence that he received termination pay and that since that time he has attempted to obtain alternative employment, but because he has been unable to indicate to potential employers his most recent position, he has been unable to obtain a suitable position.

He has been receiving, since about three weeks after the termination, unemployment benefit at the rate of $130 per week. He gave evidence that prior to the change to operator/packer he had been performing a large amount of overtime and was receiving about $750 per week gross. In his duties as a packer he was being paid $550 per week gross and was not doing any overtime.

Was There A Breach Of Section 170DC?

Section 170DC of the Act requires an employer to give the opportunity to an employee to defend him or herself against any allegations before employment is terminated.

I am satisfied that the Applicant was given some opportunity to respond to the allegations that were made against him, but not a sufficient opportunity. This applies particularly to the fact that the first written warning refers to an earlier verbal warning which he says he did not receive, and the second written warning does not specify in any great detail what he was required to do in terms of his performance and attitude. Further, in the final termination advice, a number of matters are raised which he had not had the opportunity to respond to. It follows that the employer has failed to comply with section 170DC of the Act.

Was The Termination Harsh, Unjust Or Unreasonable?

Under s.170EDA of the Act the employer carries the onus that it had a valid reason to terminate the Applicant's employment. I find that the employer has not discharged that onus. Further, I find that given the Applicant's long period of service and his clear record up until the time of the change of his position to that of a process worker/packer on 23 May, he had a good record.

Further, in terms of whether the termination was harsh, unjust or unreasonable, I was referred to the provisions of the Rubber, Plastic and Cable Making Industry Award 1983, which makes explicit provision in relation to multi-skilling and provides in clause 7(a)(i):

An employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training consistent with the classification structure of this award, provided that such duties are not designed to promote de-skilling.

In this case the Applicant gave evidence that the duties assigned were duties that he already knew how to undertake and were of a lower skilled level than the duties that had been undertaking as a powder man. He further gave evidence that he had skills in other duties available in the plant, including grinder and fork lift driver. There was therefore available to the employer other duties to allocate to the Applicant. It follows that given his record, the skills which were available to the employer and the requirement that in multi-skilling the duties were not to be such as to constitute de-skilling, the termination of his employment was harsh, unjust or unreasonable.

Compensation

In the decision of the Court in Nicolson and Heaven v Earth Gallery Pty Ltd (Wilcox CJ, unreported, dated 20 September 1994 at 29) thesaid that it is appropriate to consider what would have been likely to occur if a breach of s.170DC had not occurred..

This makes the issue of compensation under section 170EE a matter of some difficulty. At the time of his termination the Applicant was not performing any overtime in his position as process worker/packer, although he indicated he had been performing overtime in his position as a powder man. Counsel for the Applicant contended that in fact there had been two, in effect, terminations by the employer, the first being his transfer to the process worker position and the second being his ultimate termination on 2 August. He claimed that he was entitled to be treated as if he been working as a powder man as at the time of his termination. Alternatively it was said that the employer should have reinstated him to the position as powder man because he was having difficulty with the process worker duties, and in the position of powder man he would have performed extensive amounts of overtime.

I am prepared to accept that there was some prospect that he would have been returned to his position as a powder man, or some other position within the Respondent, but I am not prepared to accept that that was a certainty. I also have to consider whether there was a prospect that the Applicant's employment may have been terminated in a lawful manner. Mr Angar contended that this was unlikely to have occurred due to his good service and his skill base. I am prepared to accept that there may have been some prospect, some chance that there may have been a regular termination of his employment, but not a significant chance of that occurring.

Given I find that there was some prospect that the Applicant would have been reinstated to his position as a powder man in assessing compensation under section 170EE(3), I have calculated it on the basis of an average of the amount that he was earning as a process worker/packer and the amount that he would have been earning as a powder man as suggested by Counsel for the Applicant.

I therefore propose to award him compensation, taking into account the amounts of unemployment benefit received, on the basis that he would have earned $650 per week gross making a loss of $520 per week for a period of six months. I therefore propose to award compensation in the sum of $13,520.

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. A declaration that the termination of the Applicant's employment by the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act.

2. The Respondent pay to the Applicant the sum of $13,520 within 14 days of this date.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of Judicial Registrar Murphy as recorded in the draft transcript and revised by the Judicial Registrar.

Associate:

Dated: 19 December 1994 Solicitors for the Applicant: Maurice Blackburn & Co. Counsel for the Applicant: Mr Steven Angar Representative for the Respondent: Australian Chamber of Manufacturers Counsel for the Respondent: Dates of hearing: 19 December 1994 Date of Judgment: 19 December 1994