Western Suburbs District Ambulance Committee v Tipping - [2002] NSWIRComm 292 - NSWIRComm 2000 case summary — Zoe

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Western Suburbs District Ambulance Committee v Tipping

[2002] NSWIRComm 292

Industrial Relations Commission (NSW)|2000-08-25|Before: Sams DP

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2000-08-25

Before

Sams DP

Catchwords

07/02/2002
08/19/2002 DATE OF JUDGMENT: 11/14/2002

Source

Original judgment source is linked above.

Catchwords

07/02/200208/19/2002 DATE OF JUDGMENT: 11/14/2002

Judgment (211 paragraphs)

[1]

CITATION : Stevenson and Greenstyle Pty Ltd and Penshurst Pty Ltd t/as Atama Furniture [2002] NSWIRComm 292 APPLICANT: PARTIES : Edward John Stevenson RESPONDENT: Greenstyle Nominees Pty Ltd and Penshurst Investments Pty Ltd t/as Atama Furniture FILE NUMBER: 6500 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - furniture business - allegations of conspiracy to dismiss - whether warnings or counsellings given - employee's conduct and behaviour - customer and employee complaints against applicant - both parties unrepresented - whether dismissal "harsh, unreasonable or unjust" - procedural fairness - principles considered. CATCHWORDS : Held, dubious relevance of material - Commission satisfied that both parties understood their rights and obligations under the Act - serious reservations with applicant's evidence - respondent's evidence preferred - numerous written and verbal warnings over long period - warnings ignored - applicant's misrepresentations - applicant's behaviour and conduct unacceptable - other employee and customer complaints sustained - end of respondent's patience - no evidence of conspiracy to dismiss - respondent entitled to ask for resignation - constructive dismissal - no issues of procedural fairness - dismissal not "harsh, unreasonable or unjust" - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 Byrne & Anor v Australian Airlines (1995) 61 IR 32 Outboard World v Muir (1993) 51 IR 167 Bankstown City Council v Paris (1999) 93 IR 209 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 D & R Commercial v Flood [2002] NSWIRComm 88 CASES CITED : Wilson v Department of Education and Training [2000] NSWIRComm 20 Helprin v Westfield Limited & Anor (1996) 68 IR 25 Nicholls and Central Sydney Area Health Service (unreported) Sams DP, IRC4131 of 1999, 25 August 2000 Herbert and Warrah Ltd [2001] NSWIRComm 109 Stephan and R L Whyburn and Associates [2000] NSWIRComm 154 Abdullah Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150 Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227 Coghlan v D & D Advertising (unreported, Connor C, IRC6028 of 2001, 15 July 2002 HEARING DATES: 07/01/2002; 07/02/2002; 08/19/2002 DATE OF JUDGMENT: 11/14/2002

[140]

135 Two passages from Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 are also apposite. The Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . See also D & R Commercial v Flood [2002] NSWIRComm 88 and Wilson v Department of Education and Training [2000] NSWIRComm 20.

[195]

… b) We expect a material improvement in the relationship you have with other members of the office. We will monitor this position closely and will not accept a continuation of the problems hat have been experienced in the past. Should problems continue which are demonstrably attributable to your behaviour, your future employment with the company will be reviewed. (Ex"1" Annexure H) 29 August 2001 A number of matters have again been brought to my attention recently regarding your behaviour towards both staff members and customers. You will recall previous discussions regarding the unacceptable nature of your behaviour at times and I bring your attention to a memo dated 18 August 2000 addressed to you in which certain matters of concern were outlined. Since then there have been occasions when I have had cause to speak to you about your behaviour towards other staff. Specifically I received a complaint from Christine Tilbrook in June 2001 about the manner and language of a telephone conversation that you had with her. I rang you about this and told you that this would not be tolerated. I have also received complaints from other staff members from both Sydney and Perth. I have just spoken to a potential customer who recently spoke to you by phone. This person was trying to make a general inquiry and describes you as having an aggressive and angry manner. You eventually hung up on this person and I was forced to apologise for your actions on behalf of the company. This person represents a major corporation and has no intention of dealing with this company again. I am aware of other occasions where your behaviour towards customers has resulted in complaints being received. You are now on notice that this behaviour is unacceptable and will not be tolerated. Any further reports of aggressive or rude behaviour to staff or customers with result in your immediate dismissal. (Ex"1" Annexure L) 184 There were at least five other occasions when the applicant was verbally counselled.

Western Suburbs District Ambulance Committee v Tipping

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Judgment (211 paragraphs)

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Cases Cited (13)

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