Addis v Gramophone Ltd

Addis v Gramophone Ltd - [2006] NSWIRComm 1158 - NSWIRComm 2006 case summary — Zoe

[17]

12 Because Mr Simms received long service leave payments on termination he was ineligible for Centrelink payments until 7 June 2006. He obtained alternate employment on 13 June 2006 at the Gurawal Respite Centre working 30 hours per week and earning $400. In addition he earns $60 per week carrying out regular gardening duties for two private clients in the area. The Evidence 13 It was Mr Simms' evidence that he did not start having problems with the employer about any issues to do with his work performance until the last 12 to 18 months when he was carrying out the driving duties. He would drive the truck usually with one other person, such as Richard Ella, Brian King or Tim Ella. There were usually two people on the truck. He would stay in the back and do the loading and stacking of items while the other person would go into the private house to collect the furniture. He then drove the truck and would deliver the items to the farm at Cecil Park. 14 He acknowledged that he did sometimes bring in items where some pieces might be broken. He also acknowledged that there were items picked up that should not have been collected. He maintained this was always the fault of the other person. He had said on a number of occasion that they shouldn't be picking up those items or told the householder they couldn't take certain items, however he would be ignored. He agreed he never raised that problem with the employer. He also acknowledged that he had been spoken to on a number of occasions about picking up items that could not be used or were in poor condition. He maintained that he was the only person who was spoken to about this, none of the other employees concerned were spoken to about the problem. 15 Trevor Walker gave evidence that this issue had been an ongoing problem with Mr Simms. The problem was that they needed to discriminate between those items which could be reused and those that could not. If they picked up the latter then they filled their storage area with useless furniture and ultimately had to pay tipping fees for it. It was a real problem and could be quite costly so that rather than having a positive effect it actually cost the Corporation money. Additionally furniture picked up had to be carted and stored carefully to avoid damage.

[26]

34 Ms Tucker for the applicant summarised the evidence and submitted that an order for compensation should be made on the following grounds: · The applicant was dismissed without warning. Incidents where there had been complaints made to the applicant had been referred to but that did not discharge the respondent's duty to act with procedural fairness. · The dismissal resulted from the refuelling mistake but the complaints referred to issues concerning unusable donations and tipping fees. Those complaints did not constitute a warning to dismiss and there was no evidence that such a warning was ever made. The applicant responded to complaints about the donations and no evidence was adduced to link actual tipping expenses to his actions. · The applicant's careless approach to the respondent's property was referred to but this did not justify the dismissal. There was no warning that he could be dismissed for accidental damage to the respondent's property and no evidence that any such damage was not accidental. · There was no evidence that he had caused more than minor damage to the truck despite the fact that he undertook thousands of kilometres of driving for the respondent. The fuel incident was a relatively minor expense for which the applicant offered to pay or alternatively the employer had the option to seek a payment from him. · The circumstances of the dismissal were particularly harsh in that the applicant was given no opportunity to explain or defend himself at a meeting of which he was notified that day with no notice of what would occur nor given the opportunity of bringing along a support person. · There was no evidence that there were any other problems with the applicant's work performance in nearly 10 years of work. · It is clear that other work roles were available to which the applicant could have been transferred by the respondent. · The applicant's evidence that he felt he was blamed for the damage or expenses that he did not incur is supported by the respondent's attempts to link a number of expenses to the actions of the applicant which became doubtful when scrutinised (the tipping fees and insurance excess). · There was doubt that the applicant received a letter setting out the reasons for his dismissal despite the respondent's suggestions. · The applicant's age and length of service were aggravating circumstances in the dismissal. 35 It was further submitted that the respondent's actions in dismissing the applicant were aggravated by the events in the final week of his employment. After nearly 10 years of work the applicant was told, after driving 2500 ks around the State, "to leave the key under the mat". There was no evidence adduced that the applicant had in fact been told he would be finishing up a week early. There was no substantiation of the suggestion that an extra week's holiday pay was made to make up for the final week of notice to which he was entitled. 36 The employer had suggested that in complying with its statutory obligations in relation to the applicant's entitlement it had in some way "acted in his favour". It was submitted that the poor treatment of the applicant showed clearly that there had been little regard for his welfare.

[53]

65 Finally it was submitted that the respondent's submissions as to compensation were not supported by the Act, the relevant award or the case law and there was no purpose in replying to the assertions made. Consideration 66 I have carefully considered the evidence, both written and oral, as well as these submissions of the parties in this matter. 67 There is doubt that any employer has the common law right to dismiss an employee provided such dismissal is carried out in accordance with the provisions of any relevant award, industrial agreement or contract of employment between the parties. However s.84 of the Act provides that where an employer has dismissed an employee and the employee claims that such dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for that claim to be dealt with under the provisions of Part 6 of the Act. 68 The obligation of the Commission is to try and settle such a claim by conciliation but failing that to determine the claim by making an order under s.89, dismissing the application or making any other order it is authorised to make under this Act (s.(87(1)). 69 Thus the right of the employer to dismiss Mr Simms is not at issue. What is at issue and to be determined by this Commission is whether such dismissal was harsh, unjust and unreasonable and sufficiently so as to warrant the intervention of the Commission. 70 The onus is on the applicant to establish to the Commission's satisfaction that his dismissal was harsh, unjust and unreasonable per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. 71 The Commission also draws to Mr Griffiths' attention that Tipping's case is authority for the principle that the failure or refusal of an employer to give reasons for a dismissal can in fact render that dismissal unfair and attract intervention of the Commission on that basis. 72 S.88 of the Act sets out the matters to be considered in determining a claim as follows: 88 In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused to reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employed, and

[74]

98 However, in D & R Commercial Pty Ltd v Flood ( relied on by Ms Tucker for the applicant), the Full Bench of the Commission commented at page 363 that: "The power in the Commission to make a money order subject to the limitation on the quantum of compensation and the matters required to be taken into account by s.89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into account the matters identified in s. 89(6) those matters are not necessarily to be reflected in any particular arithmetic or definitive way in the money order for compensation made". 99 As is my usual practice I list the factors that I have taken into account (not in any particular order of priority or importance) in determining the amount of compensation contained in the Orders to be issued in this matter as follows: · Mr Simms had almost 10 years' service with the Corporation. · Mr Simms was earning $684 per week (and had the opportunity of regularly receiving additional money through travel allowance etc.). · Mr Simms has secured alternate employment but earns $100 per week less in the new position which was not secured until 13 June. I have taken into account the additional money he earns per week doing gardening duties. · Due to Centrelink provisions he was unable to obtain unemployment benefits because of his long service leave payment which he had to rely on until he secured alternate employment. · Mr Simms was 64 years of age when he was terminated and was due to retire in August 2007. · Due to his age he will not have the opportunity of accruing long service leave with his new employer. · Mr Simms was not given the opportunity to complete the final week of his notice period and it is unclear whether he was in fact paid for this time. Notice in accordance with the Award would have expired on the 20 March but he was originally given time notice to finish on the 23 March. · Whilst Mr Simms was at fault in the refuelling incident and was aware of issues of concern with his performance over the last 12 to 18 months of his employment, nevertheless I have found that the dismissal of Mr Simms, in all the circumstances, was too harsh and that there were some procedural issues of concern. 100 Accordingly I issue the following Orders: ORDERS 1. Pursuant to s.89(5) and s. 89(6) the Aboriginal Corporation for Homeless and Rehabilitation Community Services shall pay to Vincent Charles Simms an amount of compensation of $2736 (being four weeks pay). This amount is a gross figure and taxation treatment is a matter for the parties. 2. The amount of compensation specified is to be paid within twenty eight days. 3. These Orders take effect on and from today's date, 18 October 2006.

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Judgment (75 paragraphs)

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Cases Cited (10)