It can be seen that in two areas, Planning and Controlling, an assessment was made that, it seems, Mr Logan's "skill" was marginal. His overall evaluation was satisfactory.
It appears from the terms of a quality audit undertaken in 1992, and oral evidence of Mr Logan, that a quality audit was not undertaken in 1991.
Mr Logan said in evidence he had a discussion with Mr Nott in August 1991 about him relocating "due to personal performance related issues". This accords with a file note made by Mr Nott about a meeting on 4 August 1991 at Orange with Mr Logan. There had been a phone conversation, about nine months earlier, initiated by Mr Logan, as to whether there were other jobs available similar to the job he then had. Mr Logan said he was then separated from his wife. Mr Nott had told him no jobs were available. Mr Logan was suprised when the issue was raised again in August 1991. He indicated he would not take up the offer of relocation because he was in the process of reconciliation with his family.
Mr Logan accepted he received complaints by phone about his paperwork. While he did not accept there were complaints about certain specific classes of document he did accept there was a complaint that his time-sheets were late. The evidence points to these complaints being been made in 1990 and 1991.
In October 1991 Mr Logan met with Mr Manion regarding his performance. Reference was made to events at the Anglo Australian Observatory ("AAO") at Coonabarabran, which I discuss shortly, and the possibility of Mr Logan working elsewhere for Otis. It was being suggested that he be transferred from Orange. Mr Logan restated his position that it was an inappropriate time for him to be considering relocating. He also said he had personal problems he was trying to sort out.
The meeting was touched upon by Mr Logan in his oral evidence before the Judicial Registrar. More detailed evidence was given by Mr Manion in the proceedings before the Judicial Registrar. It was not challenged in the review and I accept it. Mr Manion said Mr Logan was constantly running late in submitting monthly expense reports. At best, they should have been submitted at the end of the month and they were expected within five working days from the end of the month. While it was not entirely clear, Mr Manion's evidence was also that invoices for goods or services obtained on Otis's behalf by a local representative had to be forwarded with the monthly expense report. These documents provided the basis for payment to suppliers and the reimbursement of the local representative of expenses incurred such as lunch with a client or prospective client or petrol. Mr Manion said the documentation was submitted late eighty percent of the time and up to eight weeks late. Mr Logan had a float of $700 to pay business related expenses. He would occasionally ring and request funds to reinstate or top up the float to $700 without having submitted the paperwork to enable that to be done.
These matters were raised by Mr Manion in his meeting with Mr Logan. Mr Logan said he would try and be more timely with his paperwork and get things to Mr Manion on time. It appears he also said he was busy and he would get to it when he could. Mr Manion acknowledged that things did improve though he rather suggested that it was a temporary improvement and some problems persisted in relation to being provided in a timely way with invoices so as to be able to pay suppliers.
Mr Manion also gave evidence that he discussed his performance more generally with Mr Logan. He raised with Mr Logan a call he had received from a disgruntled customer, Grace Bros. They discussed his family problems and Mr Logan agreed that he had been distracted through the earlier part of the year. Mr Logan indicated he was doing the best he felt he could in the circumstances. He agreed that he had been going through the motions through the earlier part of the year. Mr Logan agreed that he would make every effort to improve his performance. At that meeting Mr Logan raised the question of annual leave and that he was not able to go on annual leave when he wanted to and when he did he was always called up. Mr Manion said he attended to this problem when he returned to Sydney. A meeting was arranged in Sydney that Mr Logan would attend. It was a meeting to talk to the state manager, Mr Bayliss, and the service manager, Mr Nott, to discuss some of these issues, but more to look at the future and plan some objectives and some tasks for him to achieve.
Such a meeting did take place on 21 or 25 October 1991. Mr Manion attended the meeting and recounted what had occured at the earlier meeting with Mr Logan at Orange. Mr Logan explained that he had been through some marital problems earlier that year and, as a result of the service manager and Mr Manion visiting him at Orange, he was aware of how seriousthey were about him improving his performance.
The Grace Bros matter was again mentioned, the AAO was discussed and there were other discussions about other customers. Mr Manion gave evidence that Mr Logan said he was aware that he had "dropped the ball". It was put to Mr Manion in cross examination that Mr Logan never said he "dropped the ball" but this was not accepted by Mr Manion. During Mr Logan's cross examination before the Judicial Registrar, it was put to him that he said at the first meeting with Mr Manion that he said "I have dropped the ball" and he was "going through the motions". Mr Logan did not accept he said those words. It was not Mr Manion's evidence that he said both these things at the first meeting though, on one view, that is the import of the evidence. It is likely, however, that Mr Logan would have said such things in the circumstances. I accept Mr Manion's account of these meetings.
Mr Logan remembered the meeting on 25 October 1991 with Messrs Nott, Manion and Bayliss. His recollection was the main topics of conversation were a customer report in relation to AAO and T sales and, in that context, his performance was discussed. He accepted there was some criticism of his administration of the Orange office but said it was not the major criticism.
Mr Logan's duties under the agreement between Otis and AAO involved travelling to the observatory on a quarterly basis to inspect the two lifts at the observatory in conjunction with AAO's mechanic on site and to help him with any difficulties he was having with servicing them. Mr Logan said there was one unit that required more maintenance than the other units under his control. It increased the likelihood of a lift malfunctioning resulting in a breakdown visit. He said that on such visits he would not only repair the particular problem but would also rectify problems that the mechanic on site was having. He would do what he could of the routine service. Mr Logan said AAO's mechanic had primary responsibility for routine maintenance. Mr Logan said he had concerns about the level of maintenance by the site mechanic, a view he conveyed to his superiors at head office, in particular Mr Bob Nott, in an annual survey report. These matters arose in 1991. Mr Logan suggested to the mechanic on site that Otis could service the units on a monthly basis and assume more responsibility for the job. It appears Mr Logan told the mechanic that the reasons for making the suggestion was that the maintenance work was not being carried out to Otis's standards. When Mr Logan left Otis's employment in February 1995 the arrangements for servicing AAO's lifts were as they had been in September 1991.
Documents were tendered concerning the problem with the lifts at AAO. The problems appear to have first been ventilated in a customer service survey dated 13 September 1991 completed by Mr Jonathan Pogson, the principal technical officer of AAO. It was received by Otis on 20 September 1991. Also sent was a letter of complaint dated 20 September 1991 from the executive officer of AAO, Mr Cunliffe. In so far as it might be thought to be critical of Mr Logan, it rates "responsiveness to (AAO's) needs" as "poor" and "prov(ision) (of) quality maintenance work" as "fair". The completed form notes that there were unscheduled repairs or breakdown call-backs and there is a comment "we can't even get him to do his scheduled visits!" The following appears in the comments section:
"Our contract has 4 services per year, 1 per quarter. We seem to average 3 only per year. Some longstanding faults are never attended to, some repairs are requested before next service yet when the mechanic arrives he is unprepared and cannot make the repairs. We consider that we pay far too much for the service received.
P.S. While our usual mechanic was on holidays (early 1991) another OTIS mechanic visited us - - - he was EXCELLENT in all respects!"
By a letter dated 18 September 1991, Mr Pogson wrote directly to Mr Logan telling him that the critical survey had been sent and particularising some of the matters of complaint. By memo dated 2 October 1991 to Mr Bayliss, Mr Logan sought to answer the criticisms that had been made. As to the frequency of visits, Mr Logan said he had visited in late December 1989, early January 1990, mid May 1990, early June 1990, early December 1990, mid March 1991 and mid August 1991 and 27 September 1991. This, in my opinion, provides some support to the complaint made as to the frequency of Mr Logan's quarterly visits. In particular there was a period in the second half of 1990 when there was one visit when two might have been expected. Mr Logan, in his memorandum of 2 October 1991, took issue, it appears, with what was being said in relation to certain technical matters.
On 5 November 1991, Mr Bayliss met with Mr Cunliffe where agreement was reached about a number of matters. One was that a new ten year contract would commence on 1 January 1992. On 11 February 1992, Mr Gardiner inspected the AAO site and wrote, on 20 March 1992, to AAO. He said, in part:
"The condition of the elevators in far from satisfactory, however I feel this is due to lack of communication between both parties."
He went on to explain why.
It is difficult to assess whether the criticisms made by AAO had any substance in so far as they are intended to suggest Mr Logan was not performing his duties properly. As to the frequency of his visits, I have already indicated that, in my opinion, they do. As to the level of technical performance, it is to be remembered that at this time, as evident from the 1992 quality audit which I discuss shortly, Mr Logan's work performance had deteriorated in the period between March 1990 and August 1992. Even if it be accepted that it is probable that Mr Logan was not generally properly performing his duties to maintain units for which he was responsible, the significance of any such failure in 1990 and 1991 in relation to AAO should not be overstated. A survey completed on behalf of AAO in December 1992 is, on balance, a favourable one. In a note from Mr Gardiner to Mr Bayliss, dated 18 January 1993, enclosing the survey, Mr Gardiner said: "we now have a much better working relationship with this client". Mr Gardiner's evidence was to the effect that, since the events of late 1991 and early 1992, there had been no further complaints from AAO.
f. Evidence about work performance - 1992
In 1992 there was both a quality audit and an annual performance appraisal of the work of Mr Logan. The quality audit, undertaken by the person who undertook the 1990 audit, was critical of Mr Logan's performance. It was undertaken on 5 August 1992. The following appeared in the report, though I have omitted some of the more detailed technical commentary:
"In total, 5 Service Quality Audits were carried out covering 5 units; 2 units or 40% rated below 75%.
The results are:
Routines Adjustments
72.6 78.9
Average
75.8
Also, 1 Construction Quality Audit was carried out on 2 Concepts at the Department of Agriculture, Orange.
The results are;
Adjustments Installation
78.4 96.5
Average
87.5
OBSERVATIONS
The rating of 75.8 is extremely disappointing when compared with the previous audit rating of 86.4 in March, 1990.
Basic routine maintenance procedures were lacking on most sites; several did not display a maintenance check list.
Controllers require attention (see defects graph), with some penalised for not testing and date tagging N301 type overloads; refer to correspondence FOD:ASD:357 dated 5/7/97.
Well work is required on all units inspected, both in routines and adjustments.
The generator commutator at Caves House is extensively scarred and needs attention. The governor at Bathurst Hospital continues to emit noise which can be heard in the hotel.
Customer comments were generally positive with no major complaints.
The major areas where improvement may be obtained are listed below:
There then appears a list of tasks that the auditor indicates, expressly or impliedly, should be undertaken. The report continued:
"The Construction result was very disappointing. Although the NIS period has almost expired, in my opinion many items reflect on the original installations and adjustment procedures.
Most noticeable was the rough deceleration and general ride quality on both lifts but especially No.2. Ross Gardiner stated that with the replacement of the rifled sheave on No.2, both lifts would be readjusted.
CONCLUSION
With the obvious problem being routine maintenance, the CRM System or equivalent must be implemented to improve this area of service.
Although the call-back MATs at this time are satisfactory, it must be emphasised that without the application of good housekeeping procedures, call-backs will increase.
On completion of the items listed, or within 3 months, would you please ensure copies of the completed report, or a plan of action, is returned to the writer.
Finally, may I express my appreciation to Peter for the assistance received during this visit."
This report constitutes an evaluation of the work of Mr Logan disclosing that there had been a fall in the quality of the work he was doing. Indeed, that was the view of his immediate superior who, on 28 August 1882, sent him a facsimile letter in the following terms:
"Further to our meeting on 13th August, during my visit to Orange, and our subsequent telephone conversation today, this letter serves to confirm the requirements that will be expected from you in the next month. I regret not been able to meet you in person over these issues but the urgency of the situation required urgent action.
As was explained your maintenance routines are not up to the required Otis standard. It is expected that Local Representatives will meet the following standards
1. No Quality Audit scores below 80.
2. All technical Article Must Changes are to be completed as issued.
3. Routines should never score below the level of adjustments, in particular, motor room and shaft housekeeping, ie. the equipment adjustments need to be in keeping with the age of the machinery.
4. Controlled routine maintenance cards should be placed in every motor room and completed during every visit.
5. All weekly reports need to be received by the Branch office as per the issued schedule, ie. timesheets to be received by each Tuesday.
I acknowledge that prior to my taking over the management of the area you felt that you were not receiving the necessary support. However, you agree, that has not been the case this year and your performance has not improved over the last nine months, despite your discussions with Bob Nott (then NSW Service Manager), Rod Bayliss (State Manager) and Chris Manion (Personnel Manager), and the subsequent Appraisal which clearly outline outstanding issues that needed to be resolved.
The recent Audit scores have been very poor and have evidenced lack of improvement and have left me with no alternative but to issue you a final warning.
I urge you to contact me if you require assistance, or wish to discuss any of these issues further. Please remember that unless your urgent attention is directed to these issues, I may be left with n option but to terminate your employment with the company. I will review your area again on 23 September and expect that these requirements will have been met." (emphasis added)
I will refer shortly to specific events earlier that year that are likely to have contributed to the writing of this letter.
Of some significance, in my opinion, is that Mr Logan did not respond to this letter putting in issue what was asserted about his poor performance.
A month or so later, on 23 September 1992, an annual performance appraisal was undertaken by Mr Gardiner. It was completed on the standard form used for the 1991 performance appraisal set out earlier in this judgment. It is unnecessary to repeat the contents of the standard form. The comments by Mr Gardiner were as follows:
"PLANNING (Satisfactory) Peter has to further improve his planning procedures, to a level required of a Local Rep. Firm instructions have been laid down on what is required for 1993.
DECISION MAKING (Good) His knowledge and experience assists in this field. Peter has been encouraged to utilise the Branches resources to allow even greater achievements.
CONTROLLING (Satisfactory) Increased efforts are required to ensure planned performance standards are met.
COMMUNICATING (Good-Satisfactory) Has good rapport with majority of external clients. Further concentrated efforts towards select clients would improve his alround ability. Internal reporting has improved.
WORK COMMITMENT (Good) With a little more time spent on house-keeping, Peter's overall performance would improve sharply. Time Management still requires addressing.
WORKING WITH OTHERS (Good) Peter is well respected by his peers. His isolation doesn't allow for a great deal of communication with others.
Summary Appraisal: (Good - Satisfactory)
Comments: Peter needs to continue his progress in planning and controlling his areas requirements. By utilising Company standard procedures together with his knowledge and experience 1993 should show further improvements.
EMPLOYEE RESPONSE:
With support from Branch Office, more time can be spent on service routines, customer sales enquiries and increasing the number of service unit contracts.
EMPLOYEE CAREER OBJECTIVES:
Near Term Goals: Continue to make use of in-house training facilities
Longer Term Goals: Local Manager in a large area on or/off shore.
RECOMMENDED DEVELOPMENT STEPS:
1. Time Management Skills
2. Sales Negotiating Techniques"
In some senses it is difficult to reconcile Mr Gardiner's letter of 28 August 1992 threatening termination and the evaluation made in late September 1992 that, in summary, his performance was assessed as between good and satisfactory. The answer may well lie in a meeting held in September 1992 in Orange. In attendance were Mr Logan, Mr Gardiner and Ms Patricia Pithers who was the NSW human resources manager. Mr Gardiner said that it was a meeting following up the letter and intended to press upon Mr Logan that his performance was not viewed as up to standard. Asked about Mr Logan's response, Mr Gardiner said:
"Peter is a very friendly, easy-going sort of person and I think during my time as manager with Peter that we had a good relationship and we could talk openly to each other. Peter accepted in his manner that, yes, the audit scores were not up to standard and, yes, he would give me the obligation/undertaking that he would set out to improve that."
Mr Logan's continuing personal family problems were discussed in the context of his performance. Mr Logan said, and I accept, that he indicated his position was a lot clearer and things were improving. Mr Logan did not recall a customer complaint about failure to keep customer appointments being raised. Mr Logan accepted in evidence that Mr Gardiner may have said he was the last local representative to submit timesheets and the last to submit reports. There was also a complaint made to Mr Logan that he failed to meet his T sales.
It is probable that the stern terms of the letter of 28 August 1992 were to prompt Mr Logan to improve. It is also probable that the annual appraisal was in the terms it was because, in part, of the good personal relationship Mr Gardiner perceived he had with Mr Logan, and the latter's undertaking to improve. Mr Gardiner wanted to be as positive as he could be in the circumstances. That this was Mr Gardiner's approach at the time was evident in a note he wrote to Mr Bayliss dated 17 August 1992. It was written after Mr Gardiner had visited several sites serviced by Otis in the Orange area. He had concluded that several sites disclosed deficiencies in the servicing. Mr Gardiner summarised his impressions in the following terms:
"Peter has a great deal of experience and a lot to offer Otis.
His audit scores are still showing the effects of his previous 12 mths traumas.
His audit level in 1990 was 86.4 which shows that his previous 5 years work must have been of an acceptable standard.
I personally have enough reason to believe that the previous support and follow-up to the Orange Local rep was not that of an acceptable level.
I also spoke to nine clients and customer contacts during my two days in Orange/Dubbo who appear to have no adverse feelings towards either Peter or Otis."
Mr Gardiner then recommended several courses Otis might take including the termination of Mr Logan's employment. The letter of 28 August 1992 appears to have been a compromise of sorts. However it is plain that Mr Logan's performance was viewed in late 1992 as falling short of what was expected of him and the objective evidence points to that being so.
Mr Logan agreed that in February 1992 he met with Mr Gardiner at AAO to deal with the complaint from them though I discussed earlier the nature of the complaints that had been made in late 1991.
In February 1992 a complaint was made by the Australian Workers Union ("AWU") concerning the maintenance of a lift in a building in Dubbo. On 18 February 1992, the Senior Vice President of the AWU had written to the "Service manager" of Otis at an address in Sydney. It contained a complaint in the following terms:
"I must say we are totally dissatisfied with the attendance of your maintenance personal (sic). Over the last two years visits have fell (sic) to an unacceptable level. Last year we had several visits from a relieving persons (sic) who we believe was based in Canberra, his visits for the short period were most regular. Apart from this period we saw your district maintenance employee one."
In evidence Mr Logan, after proffering an explanation based on the main office being unattended and there being no one there to receive or sign his paper work, did admit to missing some maintenance visits. Mr Gardiner said, and I accept, that Mr Logan had said, when this complaint and the complaint concerning the AAO was raised, that he had a high workload in the area and it may be, from time to time, that he would miss certain visits. In these proceedings, counsel for Mr Logan points to the concession by Mr Gardiner that after he spoke to Mr Logan he had no further complaints in relation to the maintenance of the lift at the AWU's building.
Mr Logan gave evidence that at some point prior to August 1992, he had raised with Mr Gardiner that he felt he was not getting enough support. This is consistent with observations made by Mr Gardiner in his letter of 28 August 1992. Mr Logan said he had to fight with head office to get someone to do repair work in his area. He was also not getting enough support at a personal level with communication being limited and, when it occurred, often critical of the work he was doing. I generally accept the evidence of Mr Logan on this issue.
(g) Evidence about work performance - 1993
In 1993, Mr Logan's performance was again the subject of a quality audit and an annual performance appraisal. The audit was conducted in early July 1993 by the auditor who had conducted the 1991 and 1992 audits. The report was a combined report concerning the Canberra and Orange areas. In relation to Orange it contained the following:
"Orange
6 Audits covering 6 units with zero rated below 75%.
Routines Adjustment/Repairs
81.5 82.9
Average
82.2
Observations
Orange
The result of 82.2 is an increase of 6.4 on the 1992 audit of the area. Routine maintenance was almost 9% improved from last year with all units inspected rating well.
It is obvious the area has received good support from Newcastle as many outstanding repairs have been completed.
Other area where further improvement may be obtained in both areas area listed below:..."
There are then listed some specific technical matters that need not be reproduced. The report went on:
"CONCLUSION
In contrast (to Canberra), the result in Orange is outstanding with the area 'back on track' with maintenance quality. I'm sure the area will continue to rate well in future audits.
On completion of the items listed, or within 3 months, would you please ensure copies of the completed reports, or a plan of action, is returned to the writer."
This report was dated 15th July 1993 though the primary documents that it was based on were prepared at the time the audit was undertaken. Seemingly by reference to those primary documents, Mr Gardiner sent Mr Logan a memorandum dated 13 July 1993 in the following terms:
"Congratulations on your scores just completed.
The level of scores reflects your improved effort and commitment throughout the past twelve months.
Keep up the good work."
Mr Gardiner had also sent the primary documents to Mr Logan with a "with compliments" slip saying:
"Note the comments of Glenn Beddall.
He is very impressed.
Well Done."
Mr Beddall had written on them comments like "Excellent" and "well done". A month or so before Mr Beddall had written to Mr Logan congratulating him as a result of an extremely favourable report received from one client, being Peppers, Jenolan Caves.
The annual performance appraisal was conducted much later in the year. Again it took the standard form, dated 22 December 1993, with the following comments made by Mr Gardiner.
"PLANNING (Satisfactory) Further emphasis is required in this area, specifically in the area of setting and achieving objectives.
ORGANISING/STAFFING
DEVELOPING (Good) This skill is not practised greatly in the Local representative areas. Assistance during Construction activity in area is well organised.
DIRECTING (Good) Again, this area is not called upon during everyday activities of the Local representative.
CONTROLLING (Satisfactory) Greater effort is required in achieving planned objectives. Increased liaison with Branch Office would improve performance.
COMMUNICATING (Good) Continued improvement has been noted in this area during the last 12 months. This skill will continue to meet expectations.
WORK COMMITMENT (Good) A continuation of positive customer reports emphasises Peter's ability in this area.
WORKING WITH OTHERS (Good) Limited opportunities are available in this field. Customers respect is signified by favourable reports.
DECISION MAKING(Satisfactory) Further improvement can be obtained with greater commitment. This will continue to develop as Peter reinforces recent achievements.
Summary Appraisal: Good
Comments: Peter's achievements over the past 12 months reflect the improved stability in his all round performance. Further emphasis is required in the understanding and achieving of set objectives.
EMPLOYEE RESPONSE:
Peter feels that this appraisal is fair and accurate in relation to this years performance.
EMPLOYEE CAREER OBJECTIVES
Near Terms Goals
To maintain positive growth
To obtain set goals in relations to Business Plan
Longer Term Goals
To obtain further experience in other areas of company business
RECOMMENDED DEVELOPMENT STEPS:
Attend recommended NTC courses
eg. Negotiating Skills
Customer Service Skills
Small Business Management Course"
A letter dated 7 January 1994 was sent on behalf of Mr Gardiner informing Mr Logan of a salary increase arising from an annual salary review. Mr Gardiner said "This increase reflects a good performance during 1993 ..." Mr Gardiner sought to diminish the effect of these remarks by saying in evidence that Mr Logan's salary increases in 1993 and 1994 were 1 per cent and 1.8 per cent respectively while other local representatives received increases of 4 per cent or 5 per cent. However that fact does not, in my opinion, detract from the clear intimation that Mr Logan's performance in 1993 was generally assessed as good.
Evidence was led about three matters that might be thought to qualify the positive assessments made in 1993 in the audit and review. The first matter concerned the client, Grace Bros. Mr Gardiner said there was a gradual deterioration of Mr Logan's work during the middle of 1993. He made this comment by reference to "a couple of occasions" at Grace Bros in Orange when there had been no payment by the client because no one had attended to maintain the unit that month. Mr Gardiner described the responsible employee of Grace Bros as "a very demanding manager who used to keep a very good account of his maintenance visits and maintenance records."
The evidence in relation to this matter is not entirely clear. Mr Gardiner gave evidence about a discussion he had with Mr Bentik, from Grace Bros, in which Mr Bentik complained about Mr Logan's irregular visits. However this conversation would have been in late 1991 or early 1992. There was evidence from Mr Gardiner that there were two or three occasions when credit notes had to issue because of Mr Logan's failure to attend the premises. One would have thought that Otis would have records of each instance. The only documents in evidence, both documents created by Mr Gardiner, show that a visit was missed in June 1993 for which a credit note issued. Mr Gardiner noted in a memorandum of 10 September 1993 that there were two service visits the next month. Somewhat curiously, a summary of visits in a memorandum of Mr Gardiner dated 20 December 1993 records a visit having occurred on 9 July 1993 and the next on 20 August 1993. It is improbable that there was a visit between 30 June 1993 and 9 July 1993. At best those documents establish that the June 1993 visit was missed. Mr Logan said he had no knowledge of a suggestion that during 1993 he had on three or four occasions missed carrying out his scheduled maintenance at Grace Bros Dubbo, or of Grace Bros refused to make payments because of lack of maintenance.
The second matter concerned the client, Australian Defence Industries "(ADI)". Otis had a contract which required the monthly servicing of lifts at premises in Lithgow. A review of the maintenance of those lifts was undertaken by Australian Construction Services ("ACS") on 17 March 1993. In a report dated 30 March 1993, ACS was critical both of the standard of maintenance and the frequency and duration of the maintenance visits. The latter was by reference to visits during the period December 1992 to February 1993. It appears a copy of the report was first forwarded to Mr Gardiner by ADI several months later, by letter dated 3 August 1993. In that letter ADI sought to alter the level of maintenance so that only three of the nine lifts would be maintained as fully operating lifts. ADI sought a revised contract price. Mr Gardiner's oral evidence was that Otis entered a contract to that effect but that the contract was cancelled because, it appears Mr Gardiner contended, a monthly visit was missed. Later he suggested it was cancelled in September 1993 because Mr Logan failed to attend fortnightly as he and Mr Gardiner had agreed he should. That such an arrangement had been agreed between Mr Gardiner and Mr Logan is consistent with a facsimile from the former to the latter, dated 13 August 1993, proposing such an arrangement. However, Mr Gardiner's oral evidence is at odds with a memorandum from Mr Gardiner dated 5 September 1994 to the Support Operations, Administration Department of Otis. It took the form of a completed form entitled "Notification of Service / Maintenance Change". In it Mr Gardiner records that the ADI contract was being cancelled, effective 30 September 1994. The reason Mr Gardiner records was:
"Factory down sizing, use of lifts now minimal. They are trying to reduce costs at all times. Boral have accepted to maintain units month to month at a lesser cost."
Mr Gardiner said that credit notes issued in 1993 in relation to, inter alia, ADI arising from "non-attendance of programmed maintenance visits". However no documents were tendered on this matter and given the vagueness of Mr Gardiner's oral evidence, I place little weight on it.
This material does not demonstrate an ongoing problem during 1993 with the performance by Mr Logan of his work and, at best, demonstrates a failure, in late 1992 and very early 1993, of Mr Logan to attend as regularly or for as long as the ADI might have expected and a failure, prior to March 1993, to maintain the lifts to an optimum level
The last matter concerns T sales and a meeting in, according to Mr Gardiner, June 1993. The meeting was a general meeting of local representatives in Newcastle. When giving a presentation about his sales as against plan, Mr Logan had been a bit vague. Otis operates on a business year commencing on 1 December and concluding on 30 November. The June meeting was viewed by Mr Gardiner as a mid-year meeting. At that point Mr Logan had made no monthly submission for that year proposing T sales for which quotations could have been provided. Mr Logan accepted that in 1993 he was way under budget in the T sales he effected and he met probably approximately 20% of the budget amount. In March 1993 Mr Logan underwent training which he later used in trying to effect T sales.
It appears that the late submission of timesheets was a matter of concern of Mr Gardiner. In July 1993 he sent a memorandum to, amongst others, all local representatives asking that they send in timesheets promptly. Mr Gardiner said, and I accept, that of the local representatives, Mr Logan was the only one who did not submit his timesheets on time.
(h) Evidence about work performance - 1994 and 1995
Mr Logan was given his 1994 performance appraisal, dated 17 November 1994, by Mr Gardiner. It was in the same form as earlier reports and relevantly provided:
"PLANNING (Marginal) Peter's efforts in achieving set goals in this area have been disappointing.
DECISION MAKING (Satisfactory) Although Peter uses his Branches support, more effort could be made to utilise alternate solutions.
CONTROLLING (Marginal) Further work is required in this skill, events don't always coincide with plans.
COMMUNICATING (Satisfactory) Peter requires additional training in this field written communication and presentations are not always up to standard.
WORK COMMITMENT (Satisfactory) Peter is prepared to work the hours to achieve results, however better time management would assist greatly.
WORKING WITH OTHERS (Satisfactory) Further training is required in this field, to develop an ongoing rapport with others.
QUALITY (Satisfactory) Peter is aware of company systems and maintains quality standards as required.
ENVIRONMENTAL HEALTH &
SAFETY (Satisfactory) Although Peter works safely more effort is required to demonstrate further awareness and commitment to E.H.& S.
EMPLOYEE RESPONSE:
Peter advises that since there has never been any written or formal instructions on what he should be doing, all the comments are too general. There has been no mention of specific incidents or ideas of expected improvement.
EMPLOYEE CAREER OBJECTIVES:
Near Term Goals
To be able to get on with job. Secure contracts out of tenure and expand Otis's role in the area as the leader in lift and escalator manufacture & service
Longer Term Goals
Keep an open mind about advancement opportunities in the future with Otis.
RECOMMENDED DEVELOPMENT STEPS
Customer Service Training
Time Management Course
SUMMARY APPRAISALMarginal
Comments: Generally Peter's performance this year has been not up to standard. 'T' Sales were non existent, with little work done on securing out of tenure contracts. Although Peter occasionally worked long hours on certain projects other more important issues were neglected. I believe a technical position within the company would be better suited to Peter than his current role."
Prior to that date he had been given a partly completed performance appraisal by Mr Gardiner at a special meeting in Lithgow. The final document contained a section "employee response" which had been completed by Mr Gardiner on Mr Logan's instructions which were given approximately a week after the meeting in Lithgow. The "comments" include the suggestion that Mr Logan would be better suited to a technical position rather than his position as local representative in Orange.
The question of Mr Logan transferring from the Orange area was first raised with him in a phone conversation in May 1994 with Mr Gardiner. Mr Gardiner asked him to test the water by discussing it with his family. There was, at that stage, no indication the sort of job he would move to or where. He later responded to Mr Gardener by telling him his family was not happy about it. The subject arose again in a conversation with Mr Gardiner at a conference, at Bowral in June 1994, of local representatives from throughout Australia. No specific job was mentioned but a suggestion was made that Mr Logan might take up a supervisory position which he understood would be in a major urban area such as Sydney, Newcastle or Canberra or in another state. Mr Logan indicated his family was then settled and he did not wish to upset the education of his children who were then probably 15, 12, and 7 years old. Mr Logan accepted that when he was asked to transfer from Orange he was offered employment in Sydney, Gosford or Canberra and that Otis offered to pay the reasonable costs of relocation. It also offered not to move him until it was a suitable time for his children's schooling. There was an issue as to whether, at the Bowral meeting, Mr Gardiner said to him "Orange is no longer an option". That is, whether it was then made plain that he had to move. Whether it was or not does not appear to me to be material.
On 11 September 1994, Mr Logan had met in Newcastle with Mr Gardiner and Mr Glen Beddall, state manager NSW and ACT. The meeting occurred after a quarterly review or meeting of local representatives supervised from the Newcastle office of Otis. It was Mr Beddall's assessment that Mr Logan's presentation, at the local representatives meeting, of his business plan, including means of achieving T sales, was quite inadequate. It did not appear that Mr Logan took issue with this assessment. He explained in evidence that he had not had the time he needed because he had been working on submissions for 3 units at the Mt Piper Power Station. At the meeting with Mr Gardiner and Mr Beddall, Mr Logan was told his performance was not up to standard and his future employment with Otis was discussed. He was told his chances of being accepted into a management type job were minimal because of his age. Mr Logan was offered a job as a service adjuster in Sydney. Mr Logan was told they had decided to move him out of the Orange area and he would have some time to talk it over with his family and make arrangements. He gained the impression that if he did not relocate he would be "out the door". He was informed they would advertise for his position in Orange and he would stay there as long as was necessary to train a replacement. A service adjuster is a person who works on existing lift installations, particularly problem lifts, that need major readjustments. Mr Logan understood the local representative position to be a staff position and that a service adjuster was a wages employee. That is, he would be required to clock on and off and would be covered by an award.
Mr Logan said that it was a devastating to be told that, having persevered with him in the hope that he would improve, Otis had formed the view that he could not continue to represent the company in Orange but that they would be prepared to transfer him. When the question of transfer was raised in September 1994 it was not a total suprise but he had been suprised about points raised about his capacity. At the time of his termination, Mr Logan's gross salary was approximately $41,000 per annum. The offer of other employment would have resulted in an income of $32,000 per annum.
After the meeting with Messrs Gardiner and Beddall, Mr Logan wrote to Mr Beddall on 11 September 1994 providing him with a report concerning his performance. It referred to the successful negotiation of two service contracts and the recapture of business concerning a unit installed at Grace Bros, Dubbo. However the recapture was the result of an agreement applying throughout NSW, regulated by head office. In the report he also dealt with his T sales performance.
Mr Logan accepted that he continued to have problems submitting timesheets for work done. Mr Logan said the reason why he had had difficulties with timesheets in late 1994 was partly because of the stress he was under to relocate and partly because of two jobs he had involving construction work. He became involved in testing and inspection which consumed a lot of his time.
He was not aware of complaints by suppliers and subcontractors towards the end of 1994 threatening Otis with legal action for failing to pay accounts. Nor was he aware of Ms Nancy Carr, supervisor of the government offices in Orange, complaining in October 1994 that they were not receiving maintenance services. He did, in evidence, acknowledge that there was mention in a phone call that she had not seen him last week or month. Who the phone call was with, however, was not clear.
The evidence on this issue of the servicing of two government offices in Orange is somewhat obscure. In a service report completed by Ms Carr in September 1994, she indicates a generally high level of service from the Otis service mechanic who provided regular maintenance service but a generally poor level of service on the part of the "Otis Local Manager/Local Representative". Mr Tull, who had succeeded Mr Gardiner as the manager, Newcastle and Northern NSW, in October 1994, spoke to Ms Carr in late January 1995. She said to him she was constantly having to ring up Mr Logan to get service done. Mr Tull's evidence was that he did not speak to Mr Logan about it. It is likely, therefore that the phone conversation Mr Logan gave evidence about was with Ms Carr. However this evidence falls short of establishing that in mid to late 1994 there was a systematic failure on Mr Logan's part to perform routine and regularmaintenance as required to meet Otis's contractual problems obligations.
On or about 22 November 1994, Mr Beddall wrote to Mr Logan. The memorandum contained a review of the perceived deficiencies in Mr Logan's performance in the preceding three years. It was, in essence, a direction that Mr Logan take up employment elsewhere with Otis and relinquish the position of local representative at Orange.
On 20 January 1995 there was a meeting between Mr Bull, Mr Logan and Mr Etherington, a human resources manager. Mr Logan was told he was not able to stay in Orange, he would be replaced, and he was offered a job in Sydney or Gosford or Canberra. He was told Otis would meet the reasonable costs of relocating. He was also told that he would not be required to move until it was suitable for his children's schooling, though what this meant was never explored fully. In the letter of 22 November 1994 from Mr Beddall, it had then been indicated he had to leave Orange by the end of January 1995. Mr Logan had already sought legal advice and said at the meeting he would be seeking legal advice at the meeting. Thereafter his solicitors wrote indicating that Mr Logan refused to leave.
On 6 February 1995 Mr Tull visited Orange and arranged for Mr Logan to hand over to his replacement. He was asked to gather together the company records he had. Mr Logan met with Mr Tull and Mr Etherington at Parramatta on 8 February when he was paid out. He was given a company car to use for a further four weeks.
In 1994 Mr Logan's T sale budget was in vicinity of $31,000 but the final T sales figures achieved by Mr Logan was only about $4,000 or $5,000. That is a reference to sales secured as a result of submissions made by Mr Logan. There is evidence to suggest that in 1994 Mr Logan submitted proposals to pursue T sales totalling $134,000 and, according to Mr Tull, he made submission totalling $54,000 between September 1994 and January 1995. Mr Logan gave evidence, that he submitted T sales orders of about $8,000 in January 1995. Mr Tull said the amount was $5,088 and both orders were placed directly by the clients.
A lot of detailed evidence was given about the process of submitting T sales and the setting of the sales budgets, particularly after Mr Gardiner came to supervise Mr Logan in late 1991, as well as changes in reporting proceedings made in 1994. For reasons which become apparent shortly, they are not matters I need address in detail.
(i) Hours Worked and Callouts
Mr Logan's evidence was that between July 1985 and February 1995 he worked between 32 and 40 hours a week maintaining, servicing installing and/or assembling lifts and escalators. He said he spent between 15 and 25 hours per week travelling. On this evidence, the range of hours he worked on these tasks was 47 to 55 hours per week. He said that between July 1985 and late 1991 he spent a further three hours weekly on administration which increased to 10 hours per week from January 1992. Thus, on his evidence, the range of hours worked, before January 1992 were 50 to 58 hours per week and, after that, 57 to 65 hours per week. This evidence was not, however, free from ambiguity though its general tenor was clear.
Otis responded to this evidence, in particular, by calling Mr Leonard Algie, who was the field operations manager of Otis. He undertook an analysis of records kept by Otis. Having regard to the way the data in the records was compiled, it was possible to make the analysis only for the year ending in November in 1986 to 1992 inclusive. There was no real issue that for purposes internal to Otis, an expression "productive time" was used to describe time in which an employee was engaged, for example, in repairing and maintaining lifts and travelling for that purpose. Nor was there an issue that an expression "non-productive time" was used to describe time spent on administration tasks. The analysis reveals that the average weekly hours of Mr Logan for productive time, for which 32 hours is notionally allocated, was:
"1986 28.9
1987 28.08
1988 57.15
1989 24.25
1990 24.67
1991 28.19
1992 24.46"
The relevant source documents, in relation to Mr Logan, were field activity reports submitted by him to the regional office, which I take to be the NSW office initially and later the Newcastle office. Mr Algie accepted that if the field activity reports were not accurate, then the figures I have just set out would not be accurate. Mr Logan gave evidence, that was not effectively challenged in cross-examination, that the field activity reports were completed on the same basis as his timesheets, which is a matter I discuss in more detail shortly. He also said that he did not include in the field activity reports, on which he recorded his hours of work, the time he spent in travelling to sites whether for maintenance, call-back or other visits.
Considerable detailed evidence was given by Mr Logan and Mr Gardiner, in particular, concerning the manner in which Mr Logan and other local representatives completed or should have completed their timesheets. The import of Mr Logan's evidence was that irrespective of the number of hours he actually worked, he recorded on his timesheet 32 hours of productive time and eight hours non productive time. What clearly emerges, in my view, from the evidence is that Mr Logan recorded on his timesheet nominal hours worked and not actual hours worked.
It is to be recalled that, when he was first appointed, Mr Logan was shown a document by Mr Bull which I set out earlier in this judgment. A similar form was annexed to a document that Mr Logan had in his possession, dated May 1964, instructing local representatives on how to fill out their weekly timesheets. Mr Logan said, and I accept, that he would have got this as part of the papers handed to him by Mr Sarchfield, his predecessor. Mr Bull's evidence was to the effect that he explained to Mr Logan that the document was used to record actual hours worked. So much is apparent from terms of the document itself. Mr Bull agreed with a proposition put to him by counsel for Mr Logan that if an employee worked 10 hours on a site he would record 8 hours in the first line as regular productive time and 2 hours on the sixth line as productive overtime. This is illustrated in the entry for Tuesday filled in by Mr Bull in the column for Tuesday. It is also apparent from the notation made by Mr Bull in line four, "travelling outside normal working hours", that the form was to be completed so as to record any travelling outside the eight hours that the employee would be expected to work.
However the working day and the working week of the local representative, in terms of productive time, was not as symmetrical and ordered as the completed form used as a sample by Mr Bull would suggest. In evidence were three documents described as route schedules. They constitute a list of units that must be attended to and identify the day of the work they will be visited. Each document covers a work cycle of four weeks. One of the route schedules had been used in the Orange area before Mr Logan commenced as local representative and was inherited by him. Another he created after he arrived, and another he created in December 1991. They disclose a working pattern where productive time is spread over five days with a differing number of hours being worked on the days identified in a four week cycle. The route schedule Mr Logan inherited is broken down so as to identify travelling time and working time, both elements of productive time. The route schedule created by Mr Logan did not. Mr Logan said that while the form was explained by Mr Bull in the way just described, he was told at the conference of local representatives in November that year to simply fill out 80 per cent productive and 20 per cent non productive. I accept this evidence. It is consistent with a practice in place several years later when Mr Gardiner assumed the supervisory position at Newcastle.
Mr Gardiner acknowledged in evidence that between the time he started in December 1991 and September 1993 when he wrote a memorandum I refer to shortly, he was informed by some local representatives that because they were on annual salaries they simply recorded 32 productive hours and eight hours non-productive time. The September 1993 memorandum was a direction to local representatives to record on a timesheet, which it appears was not the weekly timesheet, on-site call-back time. It also contained the direction "continue to book 32 hours productive and 8 hours office routine as before." An earlier memorandum from Mr Gardiner to local representatives dated 9 December 1992 said, in relation to Orange, "Remember when doing your weekly timesheets the break up is as follows: ... PRODUCTIVE ... 80% ... OFFICE ... 20%."
I am satisfied that the hours recorded by Mr Logan do not establish the hours he worked. I accept his evidence that he simply filled in 32 hours productive and eight hours non productive because he believed that is what he was required to do and not because it reflected hours he actually worked. I am also satisfied that because the records upon which Mr Algie based his analysis were filled in so as to record notional hours and did not include travelling time, that analysis does not establish that Mr Logan's evidence about the hours he worked is wrong.
Mr Algie also gave evidence of time he spent in the Orange area with the local representative who replaced Mr Logan and expressed a view about the correctness of certain assumptions concerning travelling time in Mr Logan's route schedule and the time the work required of the local representative might reasonably be expected to take. However this evidence is, in my opinion, to be given limited weight in view of the failure of Otis to call the existing local representative to give evidence. That matter I discuss in more detail shortly.
There was an issue as to whether Mr Logan's administrative duties increased when Mr Gardiner assumed the role of his managerial supervisor. I am inclined to accept Mr Logan's evidence that there was an increase in the time it took him to do administrative work but the extent of the increase was probably exaggerated at least for the years 1991 and 1992. Part of this period of ten hours administrative work involved reading and related clerical work which was necessary to effect T sales, and it was Mr Logan's evidence that these administrative tasks "happened a lot" in the last 12 months, viz. in 1994. The clear implication was that it had not been a feature, or as significant a feature, of the administrative work he undertook in the early years of Mr Gardiner's supervision. A factor in accepting the general thrust of Mr Logan's evidence, though I do not wish to overstate its importance, was my impression of Mr Gardiner as a thorough and probably punctilious man. I could well imagine that his management style involved, and I do not say this critically of him, extensive communication and comprehensive reporting. That view is consistent with the commitment he gave Mr Logan to provide greater support, which was a matter Mr Logan had complained to Mr Gardiner about in relation to Mr Logan's previous management supervisors. It is also consistent with a quality accreditation system introduced by Mr Gardiner when Newcastle manager.
Up until February 1993, Mr Logan took, it appears, 12 rostered days off during the year though that month he was told by Mr Gardiner to stop that practice.
It was common ground that local representatives had to be available for callouts to deal with emergencies. It also appeared to be common ground that Mr Logan had to be contactable so as to attend to such callouts or, if absent from the area, notify the Newcastle office and arrange for an electrical contractor to be available to cover callouts. The system of notifying Mr Logan of an emergency that might require him to attend urgently involved, before February 1992, Mr Logan using the services of local security companies to accept calls diverted from his home if he was out. From February 1992 most calls relating to emergencies were made to a centralised answering facility called Otisline which first began operating in that month. With limited exceptions, any callout Mr Logan was required to make after February 1992 would have been through Otisline and, ordinarily, apparent from computerised records relating to its operation. However Mr Logan said, and I accept, that there were at least two instances of sites to which he was called out which were not the result of calls to Otisline. One was the Friskies Pet Food site at Blaney and the other the Mt Piper Power Station. During the proceedings it became clear that the Otisline computer records were not themselves a comprehensive record of callouts arising from contact with Otisline.
A critical issue is whether the contention of Mr Logan that the hours he spent on productive time, including travelling, were considerable or whether, as contended by Otis, his energies and time were being spent disproportionally on running his farm and doing other work as an electrical contractor, and that he was exaggerating his productive time engaged on work for Otis.
From Mr Logan's tax returns the following emerged. The income he derived from the farm for the year ending 30 June 1995 was $10,875 and 30 June was $8,830. Over the financial year 1994/5 there had been 334 sheep and 18 cows on the property and the financial year before that 316 sheep and 41 cows. I should add that counsel for Otis sought to use these figures to discredit evidence given by Mr Logan that in February 1995 he had 130 sheep and 10 or 12 cattle. However the tax returns also contained a figure for stock at hand at the end of the financial year. For 30 June 1995 it was 122 sheep which is entirely consistent with the evidence of Mr Logan gave about stock levels in February 1995.
It may be accepted that a farm carrying stock at these levels would require some work. Mr Logan said, and I accept, his wife was actively involved, with him, in running the farm. I also accept that his level of earnings doing electrical contracting work, $950 and $745 in 1993/94 and 1992/93 respectively (the income of $2,115 for 1994/95 included the period after his employment with Otis concluded), was likely to have been for more than what Mr Logan described as "love job[s]" where what he charged was substantially to cover the costs of materials. There were no deductions of a corresponding magnitude for expenses referable to materials.
The running of the farm and electrical work may well have accounted for time that Mr Logan now says he spent on work as the local representative of Otis in the Orange area. However Otis could have demonstrated the time it would take to do the work as a local representative in the Orange area comparatively simply by calling the local representative who took over from Mr Logan. There was evidence from Mr Algie that the workload did not change substantially at least until early 1996 when Otis acquired another elevator/lift business. Mr Algie gave evidence that he reached this conclusion after an examination of the present representative's workload and discussing it with that local representative. He sought to give evidence about the time the work would take but the admission of that evidence was successfully objected to by counsel for Mr Logan. The objection was ruled on on the first day of the hearing of the review on 14 October 1996 and had been foreshadowed in a list of objections filed on 8 October 1996. Notwithstanding this, the present local representative was not called, nor any explanation given as to why he was not called.
In my opinion, the failure of Otis to call the local representative who took over from Mr Logan plainly brings into play the principles in Jones v Dunkel (1959) 101 CLR 298. A comparatively recent discussion of them is found in the judgment of Wilcox J in Lek v Minister for Immigration (1993) 43 FCR 100 at 123-124. While, as I discussed earlier, Mr Logan may have exaggerated the hours he spent on administrative tasks in the period 1991 to as late as early 1994, I am not satisfied that I should reject his evidence generally about the hours he worked. Mr Logan's evidence about the time it took to perform his duties as a local representative could, if wrong, readily have been contradicted by evidence from the local representative who followed him. The failure to call that person permits me to more readily accept the evidence of Mr Logan as to the time it took him to perform his work: Jones v Dunkel (supra) per Menzies J at 312.
Even from the Otisline records, it emerges that Mr Logan was, from time to time, required to do a call-back well after the time he ceased working. I am also satisfied that Mr Logan regularly worked for periods in excess of 38 hours per week.
Did Otis have a valid reason for terminating the employment of Mr Logan
Section 170DE(1) of the Act provides that an employer must not terminate an employee's employment unless there is a valid reason or valid reasons connected with the employee's capacity or conduct or based on the operational requirements of the employer's undertaking establishment or service. Of some importance in these proceedings is that s 170EDA provides that an employer is taken to have contravened s 170DE(1), if contravention is alleged, unless the employer proves there was a valid reason or reasons of the kind referred to in s 170DE(1).
The case in justification of termination of Mr Logan's employment in February 1995 (which, notwithstanding the Judicial Registrar's view to the contrary, was not a constructive dismissal) involved each characteristic found in s170DE(1). That is, Otis points to Mr Logan's capacity and conduct and its operational requirements in support of the contention that it had a valid reason for the termination. At the heart of the case is the failure of Mr Logan to meet Otis's expectations of what he could do in the time available to him, at least in a notional sense, and the standard at which it was done.
I should first indicate that the evidence of Mr Logan's failure to discharge his duties at an acceptable standard in 1990 (to an extent), in 1991 and in 1992 (to an extent), must be seen in context. At that time Mr Logan was experiencing marital problems. This was known by management in Otis and, in a sense, there was an acceptance of the impact that was having on his work. They did not terminate his employment, though it was canvassed in August 1992, and were encouraging him to improve. He did improve, as is apparent from my review of the evidence of his work performance in 1993. By the end of 1993 there was, in my opinion, no reasonable basis for criticising the standard of the repair and maintenance work Mr Logan was then doing in any technical sense, nor any basis of substance for suggesting he was not doing it in a timely and diligent way. However, by the end of 1993 and throughout 1994 there was a basis for criticising some aspects of the performance of his administrative tasks including the level of T sales secured by him in the Orange area.
Mr Logan accepted that, at least in late 1994, he was tardy in submitting timesheets and also acknowledged the inadequacy of the presentations of his business plan at the September 1994 local representatives meeting in Newcastle. Both matters he explained by reference to his workload. The late timesheets, at least in September and October 1994 he explained were due to the pressure arising from the proposal to relocate, and being taken on two jobs involving construction work. This explanation was given in cross-examination in the proceedings before the Judicial Registrar and not subsequently challenged in cross- examination in the review. The reason based on the pressure to relocate is scarcely tenable. However the other aspect of his explanation may be more substantial.
Indeed when being cross-examined about his contention that he spent 10 hours on administration, he was asked why there were complaints about his paperwork if this time was being spent on administration. His answer was, in substance, that he had to spend a lot of time servicing lifts and doing other work and he was often too tired to do the paperwork. This explanation is a plausible one and is consistent with the view I earlier expressed that Mr Logan probably exaggerated the amount of time he said he was devoting to administration.
However the general acceptance of the evidence of Mr Logan about the hours he worked on repair and maintenance and associated travelling as well as out of hours call-backs and the limited installation work he did, provides an explanation why he underperformed in relation to the punctual submission of timesheets and the generation of T sales. Underperformance can constitute a valid reason within the meaning of s 170DE(1): see Hurskin v Australian Jewish Press Pty Ltd (1996) 69 IR 123; Brooks v Panalpina World Transport Pty Ltd (unreported, Industrial Relations Court of Australia, 25 March 1997, Patch JR).
However in this case I am confronting underperformance in relation to two aspects of the work of a local representative in circumstances where the employer had an expectation that these aspects, together with the remainder of the duties, could be performed within a reasonable period in a working week. Otis has not established that they could be performed within a reasonable period in a working week, as it could have by calling the existing local representative. In the result, in my opinion, it has failed to demonstrate that the conceded underperformance in some areas of Mr Logan's work constituted a valid reason for the termination of his employment.
Remedy
This issue is a vexed one. The view adopted by the Judicial Registrar was that, in establishing a business in competition with Otis and using confidential information gained while employed by Otis, Mr Logan had caused an irretrievable breakdown of the relationship of employer and employee. Reference was made by the Judicial Registrar to an authority concerning restrictions on the use of confidential information by an employee or former employee. Counsel for Mr Logan sought to demonstrate that no confidential information was used by Mr Logan in securing work after the termination of his employment. However whether specific information was or was not used does not appear to me to be the critical issue and involves an approach that is too narrow. What, in my opinion, is of significance is that Mr Logan has now established himself in a substantial and material way, as a competitor of Otis in the area in which he was formerly employed generally to promote the business of Otis and advance its interests. He has divorced himself from the Otis persona and is promoting himself in his own right. Indeed he is, on a subcontract basis, working for a competitor of Otis, Schindlers Elevators Pty Ltd. It is, of course, understandable that he has done so. He is settled in the area, has a family to support and his principle skills are that of an electrical lift mechanic.
Section 170EE posits two considerations in determining whether an order for reinstatement should be made, namely that the Court considers it is appropriate in all the circumstances and the reinstatement of the employee is not impracticable. These matters, and particularly the latter, have been recently canvassed by a Full Court of the Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (unreported, 7 February 1997). It is to be remembered, however, that the power upon which these considerations operate can be exercised in two ways. It can involve reappointing the employee to the position in which the employee was employed immediately before the termination: see s 170EE(1)(a)(ii), or to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination: see s 170EE(1)(a)(ii). The former would be as local representative in the Orange area. The latter would be in a position that afforded Mr Logan the same salary and conditions as a local representative but it could be a position fashioned by Otis that need not be in the Orange area. I return to this matter shortly. In either event the Court can order the employer to pay remuneration lost by the employee because of the termination: see s 170EE(b)(ii).
In Perkins (supra), the Full Court endorsed, indirectly, observations of Wilcox CJ in Patterson v Newcrest Mining Limited (unreported, Industrial Relations Court of Australia, 6 June 1996) that:
"The requirement to consider the impracticability of reinstatement necessarily requires the Court to have regard to all the relevant circumstances of the case relating to the employer and the employee; as I said in Nicolson, to evaluate the practicability of a reinstatement order in a common sense way."
and observations of Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199 that:
"It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word 'impracticable' requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business, it may be 'impracticable' to order reinstatement, notwithstanding that the job remains available."
I do not propose to make an order under s 170EE(1)(a)(i). In my opinion, it is not appropriate in the circumstances of the case and it is impracticable. It would, to adopt the words of Wilcox CJ in Nicolson (supra), impose, in my opinion, unacceptable problems on Otis to order that Mr Logan assume, again, the public face of Otis in the Orange area after a period of now over two years in which Mr Logan has been battling, in a commercial sense, with that company. While there is little direct evidence of how Mr Logan has secured work, he has done so, in some instances, at Otis's expense. While it is not the subject of direct evidence, it is probable, in my opinion, that Mr Logan is now viewed by the consumers of lift maintenance and repair services in the Orange area as a person who can perform lift maintenance and repairs at prices more competitive than those hitherto charged or quoted by Otis and, for that and perhaps other less concrete reasons, is, by some, to be preferred to Otis. The image or persona of a company is an ephemeral concept but nonetheless real in the world of marketing and commerce. As emphasised in Perkins (supra), the issue of practicability is to be approached in a common sense way.
However the problems I have adverted to would not arise in an area other than Orange. It is open to the Court to make an order under s 170EE(1)(a)(ii). The exercise of that power was considered by a Full Court of the Industrial Relations Court of Australia in Anthony Smith & Associates Pty Ltd v Sinclair (1996)67 IR 240. The Full Court said (at 244):
"We have already set out the terms of s 170EE(1)(a)(ii) of the Act. The subparagraph empowers the Court to require the employer to reinstate the employee by appointing him or her "to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination". This might be a specific position, the availability and suitability of which is revealed by the evidence. On other occasions, the Court will not specify a particular position. Provided that the Court is satisfied that reinstatement is practicable and appropriate, it is open to the court to make an order in terms of par (a)(ii), leaving it to the employer to choose the position and to comply with the Court's order to provide terms and conditions that are no less favourable than those on which the employee was employed immediately before the termination. If this course is taken, the employer may select an existing position, or he or she may create a new position for the purpose. If the latter, contrary to the submission of counsel for the employer, it will not be to the point that, in the absence of the order, the employer might not have created the position. We appreciate that creation of a new position may occasion a cost, or other disadvantage, to the employer. Where there is evidence that this will be so, that evidence may be relevant on the issues of practicability and appropriateness. But it would be contrary to principle to treat such evidence as necessarily determinative. The occasion for the order arises because the employer has acted unlawfully in terminating the employee's employment. A reinstatement order is akin to an injunction compelling a wrongdoer to restore the position of the innocent party. In considering whether to grant an injunction, a court will always take into account the consequences of an order to the wrongdoer but the existence of adverse consequences has never been regarded as excluding the possibility of an order being made."
Whether an order should be made under s 170EE(1)(a)(ii) was not canvassed in detail, though written submissions filed by Otis on the question of practicability/impracticability emphasise its opposition to "the reinstatement of the applicant at Orange". By emphasising the words "at Orange", Otis was fairly plainly raising, by implication, the prospect of Mr Logan being appointed to another position located other than at Orange. But for the evidence concerning the persistent resistance of Mr Logan (while employed with Otis), to working elsewhere I would have ordered his appointment to an unspecified position that Otis may well have to create for him. I would have done so on the basis that his terms and conditions of employment would be the same as that of 'local representative' and that an order be made under s 170EE(1)(b)(ii) concerning lost remuneration. However, as noted by Wilcox CJ in the passage from Nicolson (supra) earlier quoted, practicability involves consideration of the circumstances of the employer and the employee. Given that Mr Logan is settled in the Orange area and that the clear impression I have gained from the evidence is that he does not wish to relocate, it would be impracticable to make an order under s 170EE(1)(a)(ii).
The Judicial Registrar ordered $20,000 compensation. The approach of Wilcox CJ in May v Lilyvale Hotels (1995) 68 IR 112 to the assessment of compensation which was approved by a Full Court in Davis v Portseal Pty Ltd (unreported Industrial Relations Court of Australia, 10 April 1997), requires assessment of the loss of future remuneration and other matters that bear upon compensation and quantification of the cap created by s 170EE(3).
The evidence concerning Mr Logan's remuneration after the termination of his employment is limited. In evidence are tax returns for Mr Logan personally for the financial year ending 30 June 1995 and for Logan Lifts Pty Ltd for the financial year 30 June 1996. In the former, apart from income received from Otis in that year of $34,242 (plus a lump sum payment of $9,292), Mr Logan's income was, it appears, a loss of $3,203 from primary production and gross business income of $3,474. The gross income for Logan Lifts Pty Ltd in the financial year ending 30 June was $14,898. This resulted in an operating loss of $7,132.56. Expenses incurred in that operating loss included salaries and wages of $2,000 paid, I infer, to Mr Logan. Thus the evidence, as far as it goes, suggests from February 1995 to 30 June 1996 a maximum income for Mr Logan of $5,474 for work of the type formerly done in the employ of Otis for which he was remunerated by the Company. Otis did not seek to establish that Mr Logan's income, since his termination, was of a magnitude significantly greater than that which emerged from the evidence. Thus the evidence sustains an inference that remuneration lost by Mr Logan since his termination in February 1995 exceeds, and may exceed by a significant margin, the amount awarded by the Judicial Registrar. However the Court cannot order more than, effectively, Mr Logan's remuneration from Otis for the six months preceding his termination, viz approximately $21,000. I see no basis for disturbing the order of the Judicial Registrar in relation to compensation.
It is probably unnecessary to address the operation of s 170DC which I understood Mr Logan alleges was contravened. However, and I do not repeat the evidence, there was extensive consultation with Mr Logan. Contravention of s 170DC is not established.
Liability of Otis under an Award
(a) Did an award apply to Mr Logan's employment
The awards identified by counsel for Mr Logan as possibly founding Otis's liability to pay Mr Logan for overtime, call-backs or standing by are the Metal Industry Award 1984 ("the 1984 Award") or the National Metal and Engineering On-Site Construction Industry Award 1989 ("the 1989 Award"). It was not in issue that Otis was a respondent to both awards. The 1989 Award came into effect on 19 April 1989. Any claim made by Mr Logan would be for a maximum period of six years before the commencement of the action to recover: see s 179(1)of the Act. While it is not a matter I need to resolve finally now, that would appear to be six years prior to the filing of the statement of claim on 24 January 1996. Thus, for present purposes, the relevant period commenced in January 1990 when the 1989 Award applied.
As it related to on-site work, the 1984 Award was displaced by the 1989 Award. Thus it is convenient to consider the operation of the 1989 Award first. The 1989 Award applies to on-site construction work in the engineering, metal working and fabricating industries. The clause dealing generally with the application of the 1989 Award provides:
2 - APPLICATION
(a) This award shall apply in the States of New South Wales, Victoria, South Australia Tasmania, Queensland and in the Australian Capital Territory.
(b) Subject to the exceptions and exemptions specified in this award, this award shall apply to persons employed in the classification (sic) specified in this award on "on-site construction work" (as defined) who are in the Metal and Engineering Construction Industry as defined in clause 3 - Incidence of award, of the Metal Industry Award 1984 - part I as it existed prior to the making of appendix A On-site construction work (which incidence is set out in appendix A hereto) and interpreted in accordance with subclause 2(c) of this award.
The definition of "on site construction work" is an extensive one but it includes:
"On-site construction work" shall mean:
(i) Metal trades work (as determined in accordance with subclause 2(c) herein) performed in the work of construction, fabrication, erection and/or installation work or work incidental thereto when it is carried out at a construction site which is specifically established for the purpose of constructing, fabrication, erecting and/or installing the following:
(1) ...
(5) lifts and escalators as prescribed in Part II.
To give meaning to the relevant part of this definition, it is necessary to consider the clauses identifying the area of operation of Part II which provide:
PART II - LIFT INDUSTRY
1 - TITLE
This part shall be known as Part II - Lift industry.
2 - APPLICATION
(a) Subject to any exceptions and exemptions specified herein, this Part shall only apply to electrical and metal tradesmen and their assistants who perform work in connection with the installation, major modernisation, servicing, repairing and/or maintenance of lifts and escalators.
(b) The terms of this Part shall not operate so as to interfere with the continuation of the Lift Industry Agreement made on 8 January 1985 and lodged with the Australian Conciliation and Arbitration Commission.