Re Ivor Terrence Wheeler v Philip Morris Limited [1989] FCA 230; 97 ALR 282

Re Ivor Terrence Wheeler v Philip Morris Limited [1989] FCA 230; 97 ALR 282 - FCA 1989 case summary — Zoe

[47]

34. On the basis of this evidence, I find that the applicant did fall below the standard of a reasonable tradesman electrician in the way in which he approached the dust room job. To make this finding, however, is not to reach any conclusion as to whether the manner of the performance of the job warranted his dismissal, or whether the dismissal constituted a breach of the Award. A number of factors mitigated the severity of the applicant's neglect on 4th June. The dust room was an extremely noisy and unpleasant place, in which no-one would want to work for more time than was absolutely necessary. The cables in the large conduit and the coaxial cable were lying on the floor, and were clearly disused. Their ends had not been taped or sealed and were not tagged or labelled in any way. The applicant had been told that they were to be cut. He was entitled to assume that they were redundant. He may even have been entitled to assume that they had been disconnected and labelled at the switchboard end, in accordance with standard practice. The stop circuit conduit was very close to the large conduit and the coaxial cable. As I have found, the stop circuit housing was also lying on the floor. It therefore gave every appearance of being redundant as well. The impression of redundancy was no doubt strengthened by the age of the cables and conduits in question, especially when compared with the use of orange circular cable, and of cable tray, in connection with the green dust machine. It was more than a reasonable assumption to make that the contractors who installed the wiring to the green dust machine would have installed a new stop circuit on or near that machine itself. In other words, nothing about its appearance or location provided in the mind of a reasonable person, or in the applicant's mind, any likelihood of its connection with the green dust machine. There was a machine supported by the blue frame. This machine had the appearance of some age. Its stop button was not readily visible from where the applicant was working. The applicant said that, at the time when he did the job, there was no pallet or carton underneath the frame. Evidence was given by those who visited the dust room when the green dust machine was found to have stopped that both a pallet and a carton were sitting underneath the machine on a blue frame. It is quite possible that both the applicant and those witnesses are telling the truth. The evidence of Mr. Knight was that pallets and cartons were removed and replaced twice in a day. The possibility that one had been removed before the applicant began his work, and replaced after he left, cannot be overlooked.

[50]

37. Further criticism was made on the basis that the applicant had not been alerted to the stopping of the green dust machine by a change in the noise when that machine ceased to operate. Mr. Edward Mitchell, an employee of the respondent, was called to give evidence. He is a safety officer, who at the time of the trial was pursuing a course leading to a graduate diploma in occupational hazard management at the Ballarat College of Advanced Education. Mr. Mitchell took readings with a sound pressure level meter in the dust room, during the course of the trial. All of his readings in the dust room indicated noise levels in excess of ninety decibels. At various points, the reduction in noise level when the green dust machine was turned off completely was somewhat more or less than three decibels. Mr. Mitchell committed himself to the extraordinary proposition that a reduction of three decibels is the equivalent of a perceived reduction of noise level by half. This proposition was based on information that, if one machine is operating at a particular noise level, the operation of a second identical machine in the same vicinity will produce a noise increase of approximately three decibels. That proposition may very well be true, but Mr. Mitchell attempted to expand it into a universal proposition that, at any noise level, and with any number of machines, a reduction of three decibels is equivalent to a halving of the perceived noise level. I cannot accept this proposition. It obviously would not operate at the lowest end of the scale; if the original noise level were only three decibels, a reduction of three decibels would cut it to nil. The situation in which a number of noisy machines are operating in one room obviously cannot be compared with that in which two machines of similar noise level are operated in an experiment. I am satisfied that Mr. Mitchell did not understand enough of his subject to give proper expert evidence on it. In particular, I am satisfied that the switching off of the green dust machine, in the context of the continued operation of all of the other machines in the dust room, would not produce a dramatic reduction in noise level. There was evidence that turning off the current of the green dust machine would not bring it to an instant halt. Rather, it would take some minutes to wind down, during which time there would be decreasing fan noise, although no electric motor noise. There was also evidence that machines in the dust room had built in overload systems, which caused them to stop frequently. Even though Mr. Wheeler was standing right next to the green dust machine, he would not necessarily have noticed the significant reduction in the general noise level immediately upon cutting the stop circuit cables. If he had noticed such a reduction, he would not necessarily have connected it with the fact that he had cut the stop circuit cables. There was also some evidence from the applicant that he suffers from an impairment in his hearing, which excludes certain pitches. It is possible that he did not hear the precise pitch of the electric motor in the green dust machine, and was therefore unaware of its sudden cessation. No attempt was made to explore this question on 4th June before the applicant was dismissed.

[54]

41. The first of the instances was on 20th December 1986. Mr. Kelzke said that at 7.45 am on that day, he assigned the applicant and Mr. Barratt a job of removing fluorescent tubes in a part of the respondent's premises known as the link building. At 8.30 am, Mr. Kelzke returned to the link building, to find that the applicant and Mr. Barratt were not there, and that no progress had been made on the job. He found them downstairs at a coffee machine in the main fitters' workshop. He asked them why they had not begun work, and the applicant said that he needed paper to clean his glasses. He asked Mr. Kelzke to fetch him some paper from the fitters' workshop, as he was not allowed in there. Mr. Kelzke obtained two sheets of paper for cleaning spectacles, gave them to the applicant, and sent the applicant and Mr. Barratt off to work. At 11.15 am, he went to check on them, and did not think that much had been done. At 11.45 am he found them walking past the fitters' workshop. The applicant said, "If you want us to work up there, you had better buy us gum boots". He informed Mr. Kelzke that the roof of the link building was leaking and was flooding their work place. Mr. Kelzke went to the link building and found part of the floor flooded. He did not think this was serious, as there was a space some short distance away, which was dry, and in which the work could have been performed. The applicant's account of this incident was that, while he and Mr. Barratt were removing components from fluorescent fittings in the link building, the floor became flooded as a result of a leaking roof. They reported this to Mr. Kelzke, who was unsympathetic, and told them to keep working. The applicant also denied any impropriety in asking Mr. Kelzke to fetch papers to clean his glasses. At the time when the request was made, Mr. Kelzke was in a position to obtain those papers quickly from an area which the applicant as an electrican, was not permitted to enter, namely a workshop occupied by fitters.

[87]

72. It is therefore necessary to proceed to resolve the major issue of fact, recognising that such resolution is made more difficult by the applicant's silence on a number of incidents, but examining the evidence which is before the Court as best can be done. The applicant's reluctance to give complete evidence may be explained by one or both of two factors. It may have resulted from a desire to mislead the Court. Alternatively, it may have been produced by a belief by the applicant in his own innocence of the conduct alleged against him on the various occasions. The applicant did not give the impression of being a deliberately untruthful witness. His evidence is better described as that of an unhelpful witness. A strange feature of the case is that the applicant's counsel should have opened, in general terms, the proposition that Mr. Kelzke became an over-critical supervisor, but that the applicant should not have been willing to give evidence about many occasions on which it might have been said that Mr. Kelzke behaved in that fashion. This tends to suggest a reluctance by the applicant to emphasise matters which might be construed against him, rather than a deliberate intent to claim that the incidents never occurred. Mr. Barratt was somewhat more objective, and gave evidence about a number of the incidents, and conceded that he and the applicant were criticized for slowness and failure to report, although his position was clearly one that put Mr. Kelzke in the wrong and the applicant in the right in respect to the crucial question as to which of them was at fault in the conflict. Mr. Barratt explained his own failure to protest at what he saw as Mr. Kelzke's unjustified criticism by saying that he did not think any reply was worthwhile, because Mr. Kelzke had his mind made up and would not change it. Nor did he think it worth speaking to Mr. Egan. Mr. Bogar was involved in relatively few of the incidents, but his evidence tended to confirm the view that the applicant's behaviour did not warrant Mr. Kelzke's reaction to him.

[89]

74. The respondent's case involves the proposition that the applicant changed his ways in a marked fashion after his resumption of work in December 1986. Mr. Egan gave evidence that, prior to 1986, the applicant was one of the respondent's hardest triers among electricians. He described the applicant as an average electrician with a good attitude. If the evidence of Mr. Kelzke is accepted, his attitude to work and his performance of it underwent a dramatic change in and after December 1986. It is difficult to see how a change in the applicant's competence could have occurred. His qualifications and experience show him to have been skilled as an electrician. Indeed, the work which he was given between his re-employment and his dismissal was predominantly work which was well within the standard of the applicant's qualifications and experience as an electronics tradesman. No reason was advanced as to why the applicant should have become less competent. It was therefore necessary for the respondent to postulate that the applicant had adopted an attitude towards his work which caused him to refrain from exercising the level of competence of which he was capable. Again, this seems to have been an unlikely occurrence. The events which occurred in early December 1986 no doubt impressed upon the applicant the importance of his behaving well. Further, if all of the events of which Mr. Kelzke gave evidence occurred, there were many occasions on which the applicant was reminded of his obligations. On the respondent's case, the applicant must have taken a deliberate decision to be unco-operative, and to have maintained this position in the face of repeated admonitions and the warning of 24th March. No real explanation was advanced as to why the applicant should have adopted such a position, when it was very much at his own risk to have done so. In my view, it is unlikely that he would have done so. A more likely explanation for what was seen by the respondent's officers as lack of co-operation and poor workmanship is that the applicant saw himself as working in the normal way, and found it difficult to understand why he was being told repeatedly that he was not doing so.

[90]

75. Mr. Kelzke gave evidence that, at various stages during the relevant six months, he believed or suspected that the applicant was attempting to give him "the run around". It appeared that, as part of an earlier industrial dispute, all of the fitters and the electricians and their assistants employed by the respondent had adopted a tactic described as "running the supervisors off their feet". The essence of this tactic was for employees not to be where the supervisor would expect to find them, not to co-operate in the performance of any particular task, and to attempt to have the supervisor performing fruitless errands as often as possible. No doubt this tactic had very considerable effects when carried out consistently by the whole of the maintenance staff of the respondent. A moment's thought would have given rise to the conclusion that it would be impossible for one or two or three electricians to implement such a tactic effectively. Indeed, any attempt to do so could only result in some disciplinary action being taken against a small number of employees who endeavoured to give their supervisor the run around. It was never put squarely to the applicant, or to Mr. Barratt or Mr. Bogar, in cross examination that any plan existed to give Mr. Kelzke the run around. In respect of one incident, the applicant was asked whether this was what he was attempting to do. He denied it. In the course of cross examination about the 20 mm conduit incident of 2nd June, the applicant was asked, "See I am putting to you that this was all part of a game, that you were trying to give Kelzke a hard time?" The answer of the applicant to this question was unresponsive but the question was not pursued any further. Mr. Kelzke gave evidence that the applicant had explained to him the operation of the run around early in Mr. Kelzke's days of working for the respondent. This was hardly a sound basis on which to assume that the applicant was attempting to reproduce this system with Mr. Kelzke. It is improbable that the applicant was attempting to do so.

[98]

83. I do not accept that the applicant set out deliberately to perform his work badly, or to take excessive time over it, or to give Mr. Kelzke the run around. Indeed, there was little in the way of suggestion of intent put to the applicant in cross examination. Nor do I accept that the applicant inadvertently ceased to be a competent employee, and a reasonably diligent one. To a minor degree, he was inconvenienced by lack of co-operation from other electricians, and from trades assistants. In those instances, when he informed Mr. Kelzke of the inconvenience, Mr. Kelzke gave him little support. In his evidence, Mr. Kelzke made no secret of his disapproval of the actions of the applicant and the three other electricians with whom he aligned himself in the dispute with the fitters in 1986. I am of the view that Mr. Kelzke saw himself as a supervisor who had been given special responsibility to watch carefully the performance of three employees, including the applicant, who were regarded as malcontents by the respondent's management. Mr. Kelzke's concern was to record everything he could to the applicant's detriment, in the belief that one day that material might be used to safeguard the respondent's interests in some proceeding which may have resulted from allegations about treatment of the applicant or questions of his continued employment. Special restrictions and obligations were placed on the applicant and he plainly had difficulty adjusting to these, because they were so different from the working arrangements which he had known. At one stage in his evidence, Mr. Kelzke conceded that he had "stepped up the amount of surveillance" on the applicant and Mr. Barratt, and said that Mr. Egan had agreed with this increase in surveillance. Mr. Egan's evidence confirmed that he did not normally receive reports from supervisors on the conduct of employees under their control, but that he did receive frequent reports from Mr. Kelzke on the behaviour of the applicant, Mr. Barratt and Mr. Bogar in the six months leading up to the applicant's dismissal.

[124]

107. In the present case, it was agreed that the applicant's gross earnings from the respondent at the time of his dismissal on 4th June 1987 amounted to $785.52 per week, including normal overtime and other benefits. His weekly wage for the three weeks while he worked at Skilled Engineering was $486.18. After 28th September 1987, when he began working for the Australian Postal Commission, his weekly wage was $486.53 per week. The cheque given to the applicant on his dismissal included a sum for five weeks' pay in lieu of notice. He is therefore entitled to eight weeks at $785.52 per week in respect of the time during which he was unemployed, a total of $6,284.16. He is entitled to a further three weeks at $299.34, being the difference between what he would have earned working for the respondent and what he earned working for Skilled Engineering, a total of $898.02. He is further entitled to a continuing loss of $298.99 per week from 28th September 1987, that being the difference between his earnings from the respondent and from Australia Post, discounted appropriately. It is necessary to discount heavily in respect of the applicant's future. This is because, on his own evidence, the possibility existed of promotion within the Australian Postal Commission to a level which would remunerate him at a rate similar to that paid by the respondent, from mid 1989. The loss from 28th September 1987 until 18th November 1988, when the trial ended, was $17,640.41. In respect of the future, in my view, a further amount of $12,000.00 should be allowed, this being the future loss, discounted in respect of the possibility of promotion, as well as the possibility that other events might have brought about the end of the applicant's employment with the respondent or the reduction of his income from overtime. I would award a total figure of $36,822.59 for damages. Application has not yet been made for interest pursuant to s.51A of the Federal Court of Australia Act 1976, but I will hear counsel on the question if such an application is made.

At a glance

Court

Decision date

Before

Source

Judgment (124 paragraphs)

Re Ivor Terrence Wheeler v Philip Morris Limited [1989] FCA 230; 97 ALR 282 (23 June 1989)

Parties

Legislation Cited (24)

Cases Cited (8)