AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment
Ivan Placko
and
JDN Monocrane Pty Ltd
(U2004/1483)
COMMISSIONER GRAINGER |
MELBOURNE, 1 SEPTEMBER 2004 |
Termination of employment.
DECISION
[1] This matter relates to an application by Ivan Placko (Mr Placko, the applicant) pursuant to s.170CE and s.170CK of the Workplace Relations Act 1996 (the Act) for relief in respect of the alleged unlawful termination of his employment by JDN Monocrane Pty Ltd (JDN, the respondent). In accordance with the Act the matter was referred to Mr R. McIntyre for conciliation on 24 March 2004 in Melbourne. On 1 April 2004 Senior Deputy President Williams issued a certificate pursuant to s.170CF(2) of the Act in respect of this matter. The applicant lodged an election to proceed to arbitration pursuant to s.170CFA(1) of the Act on 5 April 2004 and the matter was heard in Melbourne on Monday 12 July 2004. I am satisfied that the requirements of s.170CG(1) of the Act have been met and I now proceed to arbitrate this matter.
[2] The applicant was represented by Mr M Addison of the AMWU and the respondent was represented by Mr D Renehan.
The Evidence
[3] Mr Placko is aged 54 (Form R18). He undertook his trade training at the "Prvovomajske" Metal Trade School Centre in Zagreb, Croatia, and on 29 June 1968 was issued with a Certificate of Completion of Final Examination (the certificate) which qualified him for the position of "bravar" in the Croatian language (PN343), which Mr Placko asserts means "boilermaker/welder" (PN133). When he emigrated to Australia in 1985 a translation of the certificate was certified by the Commonwealth Department of Immigration and Ethnic Affairs which translated the word "bravar" to mean "fitter" rather than boilermaker (Exhibit A5, PN343).
Mr Placko in evidence described the situation with the translation of his trade certificate as being "problem is, someone make mistake" (PN365)
[4] From 1985 to 1991 and then again from 2000 to 2001 Mr Placko was employed by Marko Steel Works Pty Ltd as a boilermaker (see Exhibit A3).
[5] In 2002 Mr Placko was employed for 8 months as a boilermaker by Stilcon Holdings Pty Ltd (see Exhibit A4).
[6] Mr Plack gave evidence that "I work like a boilermaker all my 19 years" in Australia (PN374).
[7] In the week commencing 13 January 2003 Mr Placko saw an advertisement in the "Dandenong Journal" for a position of boilermaker/welder with JDN (PN66, PN81). Mr Placko rang JDN on Friday 17 January 2003 and spoke to a person called Rick, a supervisor at JDN, who told him to commence work with JDN at its then premises at 31 Fowler Road, Dandenong (PN119, PN139) on Monday 20 January 2004.
[8] Mr Placko commenced work as a boilermaker at JDN's 31 Fowler Rd Dandenong plant on the morning of 20 January 2003 (PN455). On 28 January 2003 a large sheet of tin dropped on Mr Placko's foot (Exhibit A2, page 1 and PN464). The initial diagnosis by Mr Placko's doctor following x-rays was that Mr Placko had not fractured his foot, but had suffered bruising. After ten days sick leave he returned to JDN working four hours a day (PN476). He returned to his doctor and was x-rayed again and this time the x-ray showed that his foot had two fractures and his foot was placed in plaster (PN493). He then had three weeks off work (PN503). He subsequently went to Dandenong Hospital where his foot was placed in a splint and was placed in plaster and he was told to use crutches (PN507).
[9] In early June 2003 Mr Placko returned to duty at JDN's new premises at 7-11 Nathan Street Dandenong, where his immediate supervisor was Mr Anthony Gardiner (Mr Gardiner), the Fabrication Supervisor and Foreman (PN1748, 1749, 1761). Mr Gardiner in turn reported to Mr Glen Baker (Mr Baker), the Production Supervisor (PN1743). Mr Gardiner supervised Mr Placko for approximately 6 months (PN2530) and was responsible for allocating jobs to Mr Placko (PN2522). Upon Mr Placko's initial return to duty at JDN in early June 2003 he worked four hour shifts (PN518). After two weeks he moved up to six hour shifts (Exhibit A2, page 1 and PN521).
[10] Mr Gardiner gave evidence that as soon as Mr Placko began working for him at JDN in June 2003 "it became apparent to [Mr Gardiner] immediately that the quality of [Mr Placko's] work was not that of a qualified Tradesperson" (Exhibit R5 and PN2546). Mr Gardiner gave evidence that "There was not a job go by that there wasn't an issue on in some way whatsoever, whether it be the quality of the welding, the accuracy of the job, the finish of the job, the presentation. I mean, it was just a continual ongoing situation" (PN2560). Mr Gardiner discussed the matter with Mr Baker and Mr Placko and the particular job he had done was cut apart and reworked (Exhibit R5). Thereafter, according to Mr Gardiner's evidence, there was not a job that Mr Placko undertook at JDN in which Mr Gardiner did not have to speak to him about the quality of his work (PN2561).
[11] In late June/early July 2003 Mr Baker asked Mr Placko to produce medical certificates showing that he was fit to return to full-time work (Exhibit A2 and PN532). Mr Placko produced those certificates and resumed full-time shifts in early July 2003 (Exhibit A2, page 1 and PN540, 545).
[12] Mr Gardiner gave evidence that following discussion between him and Mr Baker it was decided to ask Mr Placko to produce evidence of his formal trade qualifications as a boilermaker because it was apparent that the quality of his work was not that of a qualified boilermaker.
[13] Mr Placko gave evidence that Mr Gardiner regularly raised his concerns about the quality of Mr Placko's work with Mr Placko (PN1163).
[14] On Tuesday 5 August 2003 an altercation occurred between Mr Gardiner and Mr Placko arising from the poor quality of a particular piece of work Mr Placko had done on a grille (Exhibit A6, page 1). Mr Placko claimed that Mr Gardiner swore at him and hit him on the arm (Exhibit A6, page 2) "just enough to let me know you are in trouble...more like a threat" (PN625). Mr Gardiner gave evidence that he probably did swear at Mr Placko and that he lightly tapped Mr Placko on the hand (PN2601). Mr Placko went to see his doctor feeling stress after this incident (PN711 and Exhibit A7).
[15] On 7 August 2003 Mr Baker met with Mr Placko and Mr Gardiner to discuss the 5 August incident (Exhibit A6). At that meeting Mr Gardiner stated that "Ivan's work is inaccurate and poor quality on a continual basis since Ivan's return from Workcover/foot claim" (Exhibit A6, page 1 and PN2597). Mr Gardiner apologised to Mr Placko for his outburst on 5 August 2003 and stated that he did not dislike Mr Placko but stated that the problem was that Mr Placko's work was so poor (Exhibit A6, page 1). Mr Placko stated that he was able to do every job which was allocated to him but that he needed practice (Exhibit A6, page 3).
[16] On 21 August 2003 Mr Baker held a meeting with Mr Placko to address the issue of his poor workmanship (Exhibit R6). This was also attended by Mr Stephen Finger (Mr Finger), a director of JDN, and Mr Bravington, a witness requested by Mr Placko (Exhibit R6). At this meeting Mr Placko stated that "his health is suffering due to the discrimination he believes is being applied to him" (Exhibit R6, page 1). Mr Placko was asked to address the issue of "how do JDN ensure that his work is of reasonable standard when (by Glenn's estimation), basic skills expected of a tradesman are not used" (Exhibit R6, page 1).
[17] The example was put to Mr Placko of the job he had done that morning which "highlighted basic errors in squareness and level of items that reasonable [sic] be expected of an entry level apprentice, not a tradesman with, as Ivan puts it, `30 years experience'" (Exhibit R6, page 1). Mr Placko gave no acceptable answer and "conceded that he did not use a level when lining up some parts of the racking" (Exhibit R6, page 1). Mr Placko was then asked if "he had yet obtained the papers proving that he is in fact a boilermaker or recognised as such, and despite Glenn asking 3 times to date, this has still not been provided" (Exhibit R6, page 1). At the conclusion of this meeting "to address [Mr Baker's] perception of [Mr Placko's] ability, and to allow Ivan to prove that he can provide acceptable workmanship, a review is planned for 2 weeks time (4/9/03) to determine whether [Mr Placko] can provide an acceptable job within an acceptable timeframe. This will be based on a comparison to the other tradesmen in the company...[Mr Placko] agreed that the trades recognition papers will be provided by 21/9/03" (Exhibit R6, page 2). Mr Placko gave evidence that he did give an undertaking at that meeting to provide evidence of his trade qualifications (PN1249). However he said he did not understand there was any deadline for him to do so (PN1256).
[18] Mr Placko gave evidence that a meeting subsequently took place between himself, Mr Baker, Mr Gardiner and another boilermaker to discuss the quality of his welding at which Mr Baker said to Mr Placko "I'll give you a warning" about problems with his welding (PN749, 753, 758).
[19] On 30 October 2003 Mr Placko again met with Mr Baker and Mr Gardiner to discuss Mr Placko's continued poor performance and unacceptable quality of his work. The meeting was recorded and a transcript prepared (Exhibit R2). Mr Gardiner gave evidence that the transcript at Exhibit R2 is an accurate record of that meeting (PN2635). At this meeting Mr Baker made it clear at the outset that the two matters being discussed with Mr Placko were:
(a) his papers proving his qualifications as a boilermaker; and
(b) the quality of his work (Exhibit R2, page 1).
[20] Mr Placko made excuses for his failure to provide his trade papers and Mr Baker gave him another week to produce those papers (Exhibit R2, page 1), stating that "if you can't provide me with the papers by then, all we can assume is that you are not a boilermaker, which means when you took the job on you came here under...false pretences" (Exhibit R2, page 1). Mr Placko repeated his assurance that "I am qualified" (Exhibit R2, pages 2-3). At the end of that discussion when Mr Baker said to Mr Placko "OK, what do we do about the quality of your work, it is simply not acceptable as it is now" Mr Placko simply responded "which quality of work" (Exhibit R2, page 4). When Mr Gardiner then told Mr Placko that the situation had been reached where he felt that any work done by Mr Placko would be of a lesser quality than the work of the other men on his team, to which Mr Placko replied "This is your opinion Anthony" (Exhibit R2, cl 5). Mr Baker then again told Mr Placko that his work, in comparison to that of others at JDN, was "nowhere near the same quality or the time" (Exhibit R2, page 5). Mr Baker then said to Mr Placko "you have papers that say you are a fitter but you don't have papers that say you're a boilermaker" to which Mr Placko replied "No, because I'm working like a boilermaker, and I've been in the city 6 months before the accident here, and say just bring me from the Stilcon paper, tradesman's tickets, so I have to go there an pick up tickets". Mr Baker asked him whether those papers were "boilermakers papers" and gave him until the following Thursday to bring them to him (Exhibit R2, page 6). Mr Baker then informed Mr Placko that he was "going to record a warning on [Mr Placko's file] for the continued poor quality of the workmanship" (Exhibit R2, page 8). Mr Baker then explained what a warning meant: "if someone is given a warning, the next step is...well first of all they're counselled about it, they are spoken to about it. OK, that is the first step, OK we've done that twice, we've done that on the shop floor as well. If nothing changes then we go through the warnings, I'm giving you the warning now, that's the second step, the third step is a possible termination if you can't do the work that's expected of you. That means they finish work here, you go your way, we go ours". Mr Placko responded "you reckon...what for warning...I don't accept that mate, you come over here where is my job and show me...what is poor quality" (Exhibit R2, page 8). Mr Placko than raised the issues of his family and his leg. Mr Baker told him that "this is nothing to do with your leg". Mr Placko responded "you will be sorry...give me sack now...I know what I have to do" (Exhibit R2, page 9). Mr Baker told Mr Placko "I'm not giving you the sack, I'm giving you the chance" to which Mr Placko replied "I'm warning you mate...I'm warning you now, you Anthony too. If you have something against me, show me straight away. Not after, when come up all this stuff, and papers and this against me, so you wanna give me the sack, OK you try to sack me I know where I have to go" (Exhibit R2, page 9). Again Mr Placko asked "Why you give me warning?" to which Mr Baker replied that "your work is not good enough" (Exhibit R2, page 9). Mr Placko then suggested that someone else must have made the bad pieces of work when Mr Placko was not there (see, for example, PN212, PN2956). Mr Gardiner gave evidence that this was not the case (PN2957).
[21] Mr Placko gave evidence that in November 2003 he gave Mr Baker copies of references from two employers which stated (Exhibits A3 and A4) that he had worked as a boilermaker in Australia for periods totalling approximately six years. There was no evidence to contradict the fact that he had given those references to Mr Baker at the time he stated.
[22] Mr Gardiner gave evidence that in November/December 2003 one job undertaken by Mr Placko on a ladder cage for a crane, which like all of JDN's work involves very serious safety issues, was delivered by JDN to the customer in Sydney where it was found that bits had broken off the cage and the work had to be scrapped and started from scratch (PN2572). Mr Gardiner spoke repeatedly to Mr Placko about such matters but the quality of his work continued to be poor (PN2562). Prior to Christmas 2003 Mr Gardiner told Mr Baker that he believed Mr Placko would have to be dismissed (PN2657). Mr Gardiner himself resigned from JDN after Christmas 2003 and rejoined a month later when Mr Baker left (PN2663, 2627, 2929). Mr Gardiner gave evidence that the concerns about Mr Placko were entirely focussed on the poor quality of his work and had no connection with Mr Placko's Workcover claim or alleged injury (PN3055). Mr Gardiner gave evidence that the real issue the respondent had with Mr Placko was the quality of his work from which it was "obvious that he wasn't the tradesperson that he said he was" and because of concerns about safety the company was "unable to get him to do those sorts of jobs that would inevitably be supporting heavy weights" (PN2589).
[23] Mr Baker discussed the issue of Mr Placko's work regularly with Mr Colin Smith (Mr Smith), the managing director of JDN, and Mr Stephen Finger (Mr Finger), a director of the respondent (PN1589, PN2171). Mr Baker told Mr Smith that Mr Placko had been to submit to a trade qualification test to obtain trade recognition as a boilermaker in Australia. This had been scheduled for 14 January 2004 but Mr Placko had now said it would not occur until March 2004 (PN2143). Mr Smith told Mr Baker that Mr Placko's employment should not be terminated prior to the expiration of Mr Placko's then current Workcover certificate, which was due to occur on 31 December 2003 (PN2151-2153). Mr Finger also gave evidence that he had discussions with Mr Baker about Mr Placko's work and his qualifications (PN2195, 2459, 2461).
[24] Mr Placko worked between Christmas and New Year clocking on at 7.28 an 31 December and leaving at 10.30am that day to attend a doctor's appointment (PN1463-1464). The business was closed on 1-4 January 2004. Mr Placko alleged that he also worked at JDN on 5 and 6 January 2004 (PN1470). Mr Smith gave evidence that the company records showed that Mr Placko had not clocked on for work on those days (PN1615, 2072). Mr Placko gave evidence that his employment was terminated by a letter delivered by a courier to his home on 2 January 2004 (PN834). Mr Smith gave evidence that the reason the letter of termination was couriered to Mr Placko on the 6 January 2004 was that Mr Placko had left work on 31 December 2003 without clocking off and had not subsequently returned (PN1615). Mr Smith gave evidence that Mr Placko's current Workcover certificate was valid until 31 December 2003 and that on its expiry and Mr Placko's non attendance at work, the company "had no alternative than to notify him in writing" that it was terminating his employment, rather than doing so face to face (PN1615).
[25] Mr Smith gave evidence that on 5 January 2004 Mr Baker approached him and said "I've had enough, Ivan hasn't turned up. The whole lot is just continuing the same old, same old - we don't have his qualifications" (PN2064). Mr Smith then said to Mr Baker "we don't have his qualifications, then we need to terminate him" (PN2064). Mr Smith gave evidence that he had instructed Mr Baker to try to ring Mr Placko at home on those days, that Mr Baker had called but had obtained no answer. Mr Baker and Mr Smith decided that Mr Placko's employment should be terminated on 6 January 2004 and that both signed the termination letter which was couriered to Mr Placko at home that afternoon. It stated (Exhibit A8):
"Dear Ivan,
As the direct result of previous discussions between yourself and JDN personnel relating to your qualifications, in conjunction with warnings issued by JDN for continued poor workmanship, effective immediately your employment with JDN Monocrane P/L is terminated.
In particular we refer to the following documented meetings:-
7th August 2003 - Meeting between Ivan Placko, Anthony Gardiner & Glenn Baker, where the quality of the workmanship was first addressed formally after numerous earlier shop floor discussions involving both Anthony & Ivan, then Glenn & Ivan.
21st August 2003 - Meeting between Ivan Placko, Stephen Finger, Glenn Baker & Bill Bravington (witness) where undertakings were given by yourself to provide qualifications or equivalent papers to support your position with JDN as a Boilermaker. The deadline of Sept 30th 2003 was agreed to by all parties, but passed with no resolution.
The issue of the continuing poor quality of workmanship was spoken about again with no discernible improvement shown in the workmanship since that date.
30th October 2003 - Meeting between Ivan Placko, Anthony Gardiner, Glenn Baker & Derek Roper (witness) where a warning was issued for performance based reasons, essentially that the work was not of a quality acceptable for this type of industry.
These 3 meetings are aside from numerous examples of workmanship retained by JDN, of your inability to complete any task given to you within an acceptable time frame or to an acceptable quality, (as compared to other tradesmen carrying out the same work).
In summary, your lack of qualifications and continued poor performance does not comply with our Quality Assurance program, and leaves JDN Monocrane P/L with no option other than terminate your position.
Your relevant entitlements shall be processed immediately and paid into your nominated bank account."
[26] Mr Placko received the letter that evening, although he asserts in his own evidence that this actually occurred on Friday 2 January 2004 (PN849).
[27] On the morning of Wednesday 7 January 2004 Mr Placko went to JDN and attempted to start work (PN910). Mr Baker came and told Mr Placko "you can't stay, you can't work here any more" (PN917). Mr Placko then left and returned later with his wife and demanded to speak to Mr Smith (PN953-955). Mr Placko told Mr Smith "I am always looking to work hard for this company" (PN963). Mr Smith treated Mr Placko politely (PN983). Mr Smith told Mr Placko that his WorkCover certificate had expired on 31 December 2003 and he should read to the termination letter to understand the reasons for the termination of his employment (PN2064). Mr Placko went home and returned to JDN with what purported to be a Workcover certificate issued on 31 December 2003 extending the coverage to 30 January 2004 (PN1653).
[28] Mr Placko was paid 1 week's pay in lieu of notice and all outstanding pay and holiday pay (PN860).
[29] Mr Placko asserts that he was terminated not for the reasons stated in the letter of 6 January 2004 but "because boss does not like me, because I come from compensation" (PN1365). Mr Smith gave evidence that he never had any conversation with Mr Baker about getting rid of Mr Placko because of his Workcover situation (PN1786-1787). He gave extensive evidence of the respondent's desire to be sympathetic to Mr Placko, trying to work its way through his performance problems but that even the company's most basic item could not be done adequately by Mr Placko (PN1783). Mr Smith gave evidence that the reason the company terminated Mr Placko's employment was for the reasons outlined in its letter of 6 January 2004 to Mr Placko (PN2051) which related to continued poor work performance (PN2050) and his failure to produce a certificate showing qualifications as a boilermaker (PN2048).
[30] Mr Placko has not worked since his termination by JDN but has applied for several positions (PN1009, 1378). He is now doing a welding course at Box Hill TAFE and has yet (at 12/7/04) to do the theory part of that course to get his Australian qualifications as a "boilermaker" (PN1320). He has done a test in which he obtained a 50/50 result "that means some job is done well, some job is not done well" (PN1333) and is now undertaking further training (PN1333). When asked the question as to whether he is qualified as a boilermaker in Australia Mr Placko replied "not at the moment - but it will be" (PN1337). Mr Placko has never yet produced any other translation of his Zagreb certificate showing that the correct translation of his qualification is boilermaker rather than fitter.
The Applicant's Submissions
[31] The applicant made the following submissions at the hearing (Exhibit A1):
"1. The applicant in this matter Mr Placko was employed by the respondent employer for a period just short of twelve months. During the course of the applicant's employment he suffered a workplace injury which required some time off and a period of rehabilitation to his former duties.
2. The respondent employers officers took a position of hostility towards the applicant following the workplace accident including physical assault, open discrimination against the applicant, harassment and questioning the applicant's technical expertise.
3. the respondent employer terminated the applicant's employment by letter delivered by courier on the 2nd of January 2004. The respondent employer did this on the basis of an allegation that the applicant did not perform his tasks with the requisite skill. The respondent employer did not have a valid reason for the termination in breach of s.170CG3(a). The respondent employer also did not raise his concerns with the applicant a breach of 170CG3(c) and the respondent employer did not afford a fair go all round to the applicant, a breach of section 170CA."
[32] The applicant made the following additional closing submissions:
"The applicant some short period after commencing his employment had an accident on the 28th of January 2003 the applicant dropped a large and heavy piece of steal on his foot causing a fracture and resulting in the applicant having to take time off work. Following the period off work the applicant was initially returning to work on the basis of four hours per day for approximately two weeks and then moving to six hours per day for a further two weeks, eventually moving to eight hours per day. The applicants evidence was that he was picked on by Mr. Baker and Mr. Gardner that Mr. Gardner as well as verbally abusing him also physically assaulted him. The evidence of Mr. Gardner supports the proposition of a physical assault albeit Mr. Gardner characterises the assault as something unsubstantial however the evidence in (A6) certainly reveals that Mr. Gardner was prepared to apologise with regard to the assault.
Following the applicants return to work in July 2003 the respondent employer sought the applicants trade qualifications and also raised with the applicant a perceived short coming in terms of the applicants work (however the evidence reveals that only one job i.e. a gate for a platform was raised with the applicant as a matter of concern). The evidence of Mr. Smith was that Mr. Baker had raised with him a series of issues, however only the gate was shown to Mr. Smith and Mr. Smith could not substantiate any other issue raised by Mr. Baker with him.
The respondent employer did not call Mr. Baker to give any evidence despite the fact that it was clearly put on notice that the applicant would raise serious issues with regard to Mr. Baker and his behavior towards the applicant during the applicants employment. It was clearly in the respondents power to call Mr. Baker to give such evidence. The commission is entitled to draw inferences from the fact that Mr. Baker was not called, the Commission not only is entitled to draw such inferences but it submitted that it should rightly draw such inferences adverse to the respondent. The applicant relies upon the High Court authority of Jones and Dunkel (1959) 101 CLR 298.
The termination letter dated the 6th of January 2004 and the evidence of Mr. Smith makes it clear that the respondent terminated the applicants employment on the basis that the applicant had not produced his trade certificates and the perceived short comings in work.
The evidence reveals that the applicant did provide the employer with a copy of a translation of his trade certificate exhibit A5, the applicants evidence was that a translation error had occurred and that as a result of that translation error the word fitter rather than the word boiler maker appeared on his trade certificate. The evidence further is that the applicant has worked for the 19 years as a boiler maker and the applicant placed in evidence testimonials from both Marko Steel Works Pty Ltd and Stilcon Holdings Pty Ltd (exhibits A3 and A4). This evidence was unchallenged and the Commission can be satisfied with the veracity of the evidence. It is submitted that the Commission can be satisfied that the applicant provided to the respondent material which clearly demonstrated his trade skills and experience. With regard to the perceived short comings in the applicants work as noted above the only example forthcoming was the gate it is the applicants evidence that the mistake in the gate was not done by him. It is therefore submitted that both of the grounds relied upon by the respondent for the termination of the applicant cannot be sustained.
The evidence with regard to the termination process further reveals serious flaws in the way that it was carried out. First there is a contradiction in the evidence with regard to the 6th of January 2004. It was the evidence of the applicant that he worked on the morning of the 6th of January, his evidence was firm and he would not be shaken from it despite the best efforts of Mr. Renehan, on the other hand it was the evidence of the respondent particularly Mr. Smith that the applicant did not work on the 6th of January. It is the submission of the applicant that the applicants evidence should be preferred.
The respondent terminated the applicants employment on the 6th of January via the termination letter. It is submitted that this constitutes a breach of s. 170CG (3) (c) in that no opportunity was given to the applicant prior to termination to respond to the companies perception of poor workmanship. Even if the Commission finds that the letter itself did not constitute a breach of s. 170CG (3) (c) it is submitted that the interview that occurred on the following day on the 7th of January between the applicant Mr. Smith and Mr. Baker where the applicant put various issues of mitigation to Mr. Smith as the General Manager and Mr. Smith simply responded with the proposition that it was too late constitutes a breach of s. 170CG (3) (c).
It is further submitted consistent with the above submissions that there was no valid reason for the termination based on the evidence as presented thru the Arbitration. It is submitted that for a reason to be valid it must be sound and defensible see Selvachandran and Peteron Plastics Pty Ltd 62 IR 371 at 373.
It is submitted that the appropriate [order] for this matter before the Commission is reinstatement and an order pursuant to s. 170CH (4) be made for all remuneration lost."
The Respondent's Submissions
[33] The respondent made the following submissions:
"1. There was a valid reason for the termination of Mr Placko. Mr Placko was terminated because firstly he misled the Company into hiring him on the basis that he was qualified and competent to perform the role that was advertised. He failed to produce evidence of his qualifications to perform his role after repeated requests. His quality of work for the role he was employed for was not performed in tradesmen like manner and there were numerous incidents in regard to his continual poor performance he exercised in performing his role.
2. There were numerous discussions over a period of months formal and informal in relation to producing evidence of any qualifications to perform his role and the continual poor performance he exercised in performing his role. Mr Placko gave repeated commitments that he would provide the evidence and improve his performance which he did neither. Mr Placko was afforded a fair go all around consistent with the requirements of the Act.
3. On the 2nd January 2004 when it was evident that Mr Placko was never going to produce evidence of qualifications or perform his role to the minimum standard acceptable of a boilermaker tradesperson he was terminated.
4. Mr Placko was given all the requirements of procedural fairness before the Company made the decision to terminate his employment.
5. In light of the above, the termination was not harsh, unjust nor unreasonable.
6. The respondent seeks the support of the AIRC to uphold the decision of the Company."
[34] The respondent made the following additional closing submissions:
"Mr Placko termination was neither harsh, unjust nor unreasonable in the meaning of the act.
· There was a valid reason for the termination of Mr Placko. The reason was sound and defensible as supported by Selvachandran and Peterson Plastics P/L 62 IR 371 at 373. Mr Placko was terminated because firstly he misled the Company into hiring him on the basis that he was qualified and competent to perform the role that was advertised. He failed to produce evidence of his qualifications to perform his role after repeated requests. His quality of work for the role he was employed for was not performed in a tradesmen like manner and there were numerous incidents in regard to his continual poor performance he exercised in performing his role as demonstrated in the evidence.
· There were numerous discussions over a period of months formal and informal in relation to producing evidence of his qualifications to perform his role and the continual poor performance he exercised in performing his role. Mr Placko gave repeated commitments that he would provide the evidence and improve his performance which he did neither. Mr Placko was afforded a fair go all around consistent with the requirements of the Act.
· On the 6th January 2004 when it was evident that Mr Placko was never going to produce evidence of qualifications or perform his role to the minimum standard acceptable of a boilermaker tradesperson he was terminated.
· Mr Placko was given all the requirements of procedural fairness before the Company made the decision to terminate his employment.
· The reference to Jones and Dunkel (1959) 101 CLR 298 is totally inappropriate to this matter. Mr Baker left JDN on his own accord as evidence supports. In actual fact Mr Baker would have provided further evidence to support the respondent's case.
· In light of the above, the termination was not harsh, unjust nor unreasonable.
· The respondent seeks the support of the AIRC to uphold the decision of the Company.
On this basis we ask for the Commission to dismiss this action against the respondent and uphold that the Employers actions were - not Harsh Unjust or unreasonable for Mr Placko termination.
In the alternative if the Commission finds against the respondent, it is my submission that neither compensation nor re-instatement are appropriate for the follows reasons.
Compensation Arguments
Firstly, In relation to the issue of compensation payment, since Mr Placko's termination he continued to be on Workcover payments and supported by both JDN and his own evidence he has received the same amount of wages per week compared to what he would have received if he had worked for this period. He raised the issue of not receiving overtime but overtime by its own definition is additional wages outside the parameter for assessing compensation to an applicant. As per T. Sprigg and Paul's Licensed Festival Supermarket (C No. 35979 of 1998) I point to the Commission step 2 in determining the issue of Workers compensation payments
Secondly, there was no real evidence provided by Mr Placko that he had taken any steps to pursue alternative work or mitigate his losses. Again Step 2 below provides a guidance to also deduct moneys when there is no evidence of this occurring by the applicant
"STEP 2: Deduct moneys earned since termination. Workers compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation awarded."
The Sprigg decision in itself supports that no additional payments than have already been paid to Mr Placko should be paid.
Mr Placko has not been financially disadvantaged since his termination and therefore no compensation should be awarded.
Re instatement Arguments
In the event that the Commission finds against JDN MONOCRANE in this case the Commission should not exercise its discretion to reinstate the applicant for the added following reasons
1. The Power of the Commission to order reinstatement
Sections 170CH (3), (4) and (6) set out the orders the Commission may make where it has been determined that a termination was harsh, unjust or unreasonable.
"170CH(3) [Order to reinstate] If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by:
(a) reappointing the employee to the position in which the employee was employed immediately before the termination.
(b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.
170CH(4)[Continuity of employment and lost remuneration] If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make:
(a) any order that the Commission thinks appropriate to maintain the continuity of the employee's employment;
and
(b) subject to subsection (5)-any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination.
170CH(6)[Reinstatement inappropriate] If the Commission thinks that the reinstatement of the employee is inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the employee an amount ordered by the Commission in lieu of reinstatement."
Section 170CH(2) provides that the Commission must not make an order as outlines above unless the Commission is satisfied, having regard to all the circumstances of the case, including:
"(a) the effect of the order on the viability of the employer's undertaking, establishment or service; and
(b) the length of the employee's service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee's employment had not been terminated; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any other matter that the Commission considers relevant;
that the remedy ordered is appropriate".
2. The principles guiding the Commissions power to order reinstatement
The Commission is required to determine the `appropriateness' of an order to reinstate. If reinstatement is not appropriate then the Commission may make an order for a payment in lieu of reinstatement (see section 170CH(6)). The Commission must have regard to all the circumstance of the case in order to determine the appropriate remedy.
It is JDN MONOCRANE's submission that an order to reinstate the applicant is inappropriate under the circumstance of this case. Further, JDN MONOCRANE relies on the following cases in support of its position:
In the recent Full Bench decision of the Commission in Ellawala v Australia Post Corp (17 April 2000 appeal decision of Foggo C.) the loss of trust and confidence in employee performing duties was found to be relevant when determining whether it was appropriate to reinstate the applicant."
Findings of Fact from the Evidence
[35] Having considered all of the evidence and the submissions of the parties on the balance of probabilities I find the following relevant facts to be established on the material before the Commission in this matter:
1. The only evidence of formal trade qualifications Mr Placko has been able to produce is the certificate which shows his qualifications as being that of a "fitter" rather than a "boilermaker".
2. Mr Placko has worked "like a boilermaker" in various positions over the nineteen years of his life in Australia (PN374 and Exhibits A3 and A4).
3. Mr Placko is currently undertaking a welding course at Box Hill TAFE in order to obtain his Australian qualifications as a boilermaker (PN1320). He has done a test which shows that "some job is done well, some job is not done well" (PN1333). He is not yet qualified as a boilermaker in Australia (PN1337).
4. Mr Placko was engaged by the respondent as a boilermaker/welder (PN66, 81).
5. From the time Mr Placko resumed his duties with the respondent, after recovering from a workplace accident, in June 2003 his supervisor at JDN found that his work was of a poor quality and this raised concerns about Mr Placko's actual trade qualifications as a boilermaker (Exhibit R5 and PN2546). His workmanship was so poor that almost every job he did raised problems regarding accuracy, finish and/or presentation (PN2560). His supervisor, Mr Gardiner, repeatedly raised concerns with Mr Placko about his work (PN1163).
6. Mr Gardiner and Mr Baker counselled Mr Placko on several occasions but Mr Placko repeatedly made excuses, including that defective work had really been done by someone else (PN212, 2956).
7. Between late August and late October 2003 Mr Baker gave a verbal warning to Mr Placko about the quality of Mr Placko's welding (PN749, 753, 758).
8. On 30 October 2003 Mr Placko met with Mr Baker and Mr Gardiner to discuss the quality of his work and proof of his trade qualifications as a boilermaker (Exhibit R2 page 1). In this meeting Mr Placko refused to accept that there was any issue with the quality of his work (Exhibit R2 page 4). Mr Baker gave Mr Placko a warning and ran through the processes which would lead to the termination of his employment if the company's concerns over the two issues were not satisfactorily addressed (Exhibit R2 page 8).
9. On 31 October 2003 Mr Placko provided JDN with a copy of the certificate showing his qualifications as a fitter.
10. Mr Placko appears to have produced to Mr Baker evidence that he worked for two companies in Australia as a boilermaker (Exhibits A3 and A4) in November 2003.
11. Problems with Mr Placko's work continued and climaxed in December 2003 when a job he did was sent to Sydney and parts of it fell off, leading it to be scrapped (PN2572).
12. JDN's concerns with Mr Placko were not related to his Workcover claim but the company refrained from terminating his employment while it believed he was covered by a Workcover certificate which expired on 31 December 2003 (PN2151-2143).
13. JDN terminated Mr Placko's employment for no other reason than the reason stated in its letter to him of 6 January 2004 (Exhibit A8) relating to his trade qualifications and continued poor performance.
14. Mr Placko is still not qualified as a boilermaker in Australia and can still only get a fifty percent result in a formal test of his welding skills (PN1320, 1333, 1337).
Inferences to be drawn - Jones v Dunkel principle
[36] The applicant has submitted that the failure of the respondent to call Mr Baker as a witness entitles the Commission to draw inferences adverse to the respondent relying upon the authority of the High Court decision of Jones v Dunkel (1959) 101 CLR 298 at 320-321 which stated that:
"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance, or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted" and "unless a party's failure to give evidence is explained, it may lead rationally to an inference that his evidence would not help his case".
[37] A Full Bench of this Commission in Tamayo Print P1859 further elucidated the Jones v Dunkel principles including that "the rule has no application if the failure is explained, for example, by the absence of the witness coupled with a reasonable explanation for not compelling attendance by subpoena, or by illness or some other availability" and further that "the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it".
[38] In the present case the respondent has stated that it has not called Mr Baker as a witness because he has left its employment in January 2004 and that all of the matters on which he might have been asked to give evidence are in fact able to be corroborated by the evidence of the witnesses it did call, Mr Gardiner, Mr Finger and Mr Smith.
[39] While it might have been preferable that Mr Baker be called as a witness, it does not appear to me that this failure requires the Commission in this matter to draw an inference adverse to the respondent. The clear evidence of Mr Gardiner, in particular, supplemented by that of Mr Finger and Mr Smith, is sufficient for the Commission to be able to rely upon in order to reach a decision in this matter.
The First Issue - s.170CE(1)(a) and s.170CG(3)(a)
Whether Termination Harsh, Unjust or Unreasonable and Whether Valid Reasons
[40] S.170CE(1)(a) provides that an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment on the ground that the termination was harsh, unjust, or unreasonable. In Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 465 McHugh and Gummow JJ said in relation to the predecessor of this provision that:
"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
Their Honours went on at 468 to say that:
"Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable."
[41] Drawing on these remarks in B. Rose v Telstra Corporation Ltd (Dec 1444/98N Print Q9292) Ross VP at page 8 found that a termination of employment may be:
[42] While the preceding may be seen as providing examples of conduct coming within each of these three categories of termination, the Macquarie Dictionary 3rd Edition gives the following relevant definitions of these three terms:
"harsh" - 1. ungentle and unpleasant in action or effect
2. rough to the touch or to any of the senses
"unjust" - 1. not just; not acting justly or fairly, as persons
2. not in accordance with justness or fairness, as actions
"unreasonable" - 1. not reasonable; not endowed with reason
2. not guided by reason or good sense
3. not agreeable to or willing to listen to reason
4. not based on or in accordance with reason or sound judgment
[43] It is clear from the wording of s.170CE(1)(a) and from the above remarks of McHugh and Gummow JJ in Byrne that only one of these three terms needs to be satisfied in order for the interest of the Commission to be sought and activated in respect of a termination of employment.
[44] In determining this question as to whether a termination of employment was harsh, unjust or unreasonable, no one consideration and no combination of considerations is necessarily determinative of the result. For example, the existence of a `valid reason' for termination is only one of a number of specified matters to which the Commission must have regard. As a Full Bench of the Commission observed in Windsor Smith v Liu (Print Q3462 at page 8):
"... the question of whether there was a valid reason for termination of employment is no longer the critical question in determining whether the termination was contrary to the Act."
[45] Similarly, s.170CG(3) of the Act does not require the Commission to give any want of procedural fairness conclusive weight (Re AIRC; Ex parte Crozier [2001] FCA 1031).
[46] Section 170CA(2) provides that:
"the procedures and remedies" [to be applied under Division 3 of Part VIA of the Workplace Relations Act 1996] and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of termination of employment, a "fair go all round" is accorded to both the employer and employee concerned."
[47] It is clear from the wording of this provision and from the Explanatory Memorandum to the Act that it is the legislature's intention which is being referred to in section 170CA(2), and that it is the intention of the legislature to ensure that the objective in unfair dismissal cases in Division 3 PartVI A of the Workplace Relations Act 1996:
"is to provide industrial justice by giving due weight to:
· the importance but not inviolability of the right of an employer to manage the employer's business;
· the nature and quality of the work in question;
· the circumstances surrounding the dismissal; and
· the likely practical outcome if an order is made."
[48] Section 170CA(2) provides guidance to the Commission in carrying out its duties under Division 3 on the precise aims which Parliament had in putting Division 3 in place. It therefore helps provide a framework which informs the Commission on its role and processes under Division 3.
[49] More precise guidance is provided to the Commission on its role in respect of applications to it under s.170CE(1)(a) which come to it for arbitration by the provisions of s.170CG(3) which states that:
" In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and
(da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(e) any other matters that the Commission considers relevant"
The Explanatory Memorandum to the Act at clause 7.44 makes clear that:
" Affording employees procedural fairness in relation to a termination will be relevant in establishing whether or not a termination is harsh, unjust or unreasonable. However, as procedural fairness is to be only one factor to be considered along with other relevant factors, the intention is that undue weight will not be given to procedural defects in a termination."
[50] The first consideration I must therefore have regard to is whether there was a valid reason for the termination of Mr Placko's employment by JDN related to the capacity or conduct of Mr Placko, or to the operational requirements of JDN's undertaking, establishment or service.
[51] The reasons stated by JDN for the termination of Mr Placko's employment were "your qualifications and...continued poor workmanship" (Exhibit A8). These are both reasons which relates "to the capacity...of the employee", within the meaning of s.170CG(3)(a) of the Act, to perform the duties of the position for which he was engaged by JDN on 20 January 2003 as a boilermaker/welder. While no duty statement for this position was adduced in evidence, it seems self evident that if a person is engaged as a "boilermaker/welder" they ought to be able to perform boilermaker/welder duties in a reasonably competent and workman-like manner. The overwhelming evidence of this case demonstrates that from Mr Placko's return to work in June 2003 the quality of his work was consistently of poor quality, regularly required to be redone and led to the rejection of work done by Mr Placko when it was received by a customer of JDN. As I have found at paragraph [35] 13 of this decision, there was no other reason for which JDN terminated his employment. Indeed the existence of the Workcover certificate to 31 December 2003 clearly led Mr Smith to continue Mr Placko in employment for a longer period than would otherwise have been the case.
[52] The issue of whether or not Mr Placko was or is qualified as a boilermaker in Australia was, in fact, a side-issue which only arose because of concerns over the poor quality of Mr Placko's work. Had Mr Placko's work been of an acceptable level it is clear from the evidence that Mr Placko would not have been asked to produce evidence of his trade qualifications as a boilermaker. I make no findings as to whether Mr Placko is actually entitled to work as a boilermaker in Australia. What I have found at paragraph [35]1 and 3 is that Mr Placko has produced no evidence to show that he does possess a trade qualification from Croatia as a boilermaker rather than a fitter as the certificate states in its English translation; that he has not yet completed a course to obtain Australian qualifications as a boilermaker; that he has only been able to obtain a fifty per cent result in a recent test of his welding skills; and that, on his own admission, he is "not at the moment" qualified as a boilermaker in Australia (PN1337).
[53] Whilst the issue of whether he is qualified to work as a boilermaker in Australia might not, of itself, ground a valid reason for the termination of his employment, the real and overriding reason for the termination of Mr Placko's employment by JDN was the ongoing poor quality of his work and that alone was a sufficient valid reason for the termination of his employment.
The Second Issue - s.170CG(3)(b)
Whether the Employee was Notified of the Valid Reason for the Termination
[54] The evidence makes absolutely clear that Mr Gardiner and Mr Baker had been raising with Mr Placko their concerns about the poor quality of his work since June 2003. On 21 August 2003 a formal meeting was held between Mr Placko and Mr Baker and Mr Finger to address that issue (Exhibit R6). At a later meeting Mr Baker told Mr Placko that he would give Mr Placko a warning about the problems with his welding (PN749, 753, 758). On 30 October 2003 Mr Baker and Mr Gardiner met with Mr Placko and Mr Placko was given a formal warning about "the continued poor quality of the workmanship" he was doing (Exhibit R2 page 8). Mr Gardiner continued to speak to Mr Placko up until Christmas 2003 about the issue of his poor work (PN2561).
[55] There can be no doubt whatsoever that JND did notify Mr Placko of the valid reason for the termination of his employment, the poor quality of his work, both in the form of counselling and warnings up to Christmas 2003 and thereafter in the actual letter of termination of his employment and the respondent has therefore complied with the requirements of s.170CG(3)(b) of the Act.
The Third Issue - s.170CG(3)(c)
Whether the Employee was Given an Opportunity to Respond to Any Reason Related to the Capacity or Conduct of the Employee
[56] Mr Placko's supervisor, Mr Gardiner, repeatedly raised concerns with Mr Placko about the poor quality of his work from June 2003 (PN1163). Mr Gardiner, Mr Baker and Mr Finger all at various stages provided counselling to Mr Placko about that matter. Mr Placko was certainly given ample opportunity to respond but his responses seem never to have accepted that there was a problem with the quality of his work. Rather he sought to rebut what was being put to him by assertions that:
(a) someone else had altered his work to produce the defects
(b) his work was of acceptable quality
(c) JDN was making the allegations of poor quality work because he had a Workcover claim arising from his accident on 28 January 2003.
I have not found that any of these assertions is well-grounded in fact on the evidence before the Commission (see paragraph [35]12 of this decision).
[57] In fact the best response Mr Placko could have given was to produce work of an acceptable and reasonable quality but, on the evidence before me, this had not occurred by December 2003 when welding work he had undertaken was so defective that a Sydney customer rejected the work on arrival, and it had to be scrapped and done from scratch (see paragraph [22] and [35]11 of this decision).
[58] Mr Placko was given an opportunity to respond to the stated and valid reason for the termination of his employment, the poor quality of his work, over the six months leading up to the termination of his employment on 6 January 2004. While he was given no opportunity to respond in terms of the actual decision to terminate his employment, which was communicated to him by a letter couriered to his home, on the evidence before the Commission the repeated counselling and warnings he had been given over the previous six months should have left him in no doubt that his employment would be terminated if the quality of his work did not improve.
[59] JDN has therefore complied with the requirements of s.170CG(3)(c) of the Act.
The Fourth Issue - s.170CG(3)(d)
If the Termination Related to Unsatisfactory Performance of the Employee - Whether the Employee Had Been Warned About That Unsatisfactory Performance Before the Termination
[60] Mr Placko was warned about the poor quality of his work in the meeting of 21 August 2003 by Mr Baker; at a subsequent meeting with Mr Gardiner and Mr Baker (PN749, 753, 758); and again in the meeting of 30 October 2003 by Mr Baker (Exhibit R2 page 8). All of this occurred well prior to the termination of Mr Placko's employment. The warning of 30 October 2003 made clear that the next step, if the problem of poor quality workmanship was not overcome, would be termination of his employment. Mr Placko should have been in no doubt that his employment was in jeopardy if his performance did not improve. He appears wilfully to have rejected those warnings and to have relied on his threats to the company to take action against it for harassment related to his Workcover claim (Exhibit R2 page 9).
[61] JDN has given Mr Placko several warnings and has allowed a considerable period to elapse in which Mr Placko could take the benefit of those warnings to improve the quality of his work. He has continued to produce poor quality work and as a direct consequence his employment has been terminated. JDN has complied with both the letter and the spirit of the requirements in s.170CG(3)(d) of the Act.
The Fifth Issue - s.170CG(3)(da) and (db)
[62] JDN is a medium sized employer and appears to have no dedicated human resources expertise in-house. The letter of termination (Exhibit A8) could have been more sharply focussed. Indeed, in-house human resources expertise might have prevented the focus of JDN on Mr Placko's poor workmanship becoming blurred and confused with the issue of whether he possessed formal qualifications as a boilermaker in Croatia or Australia. In the event, I make some allowance for the matters referred to in s.170CG(3)(da) and (db).
The Sixth Issue - s.170CG(3)(e)
Any Other Matters That the Commission Considers Relevant
[63] Other matters which I consider to be relevant in this matter are:
1. That Mr Baker was not called as a witness, though there was no fact offered in evidence which related to him which was not corroborated either by the evidence of Mr Gardiner, Mr Finger or Mr Smith.
2. That Mr Placko appears to have pursued a wilful, headstrong refusal to accept the sound counsel offered repeatedly by Mr Gardiner and Mr Baker. Had he accepted that the real issue was that his work was of poor quality he could have done something to address the problem.
3. That Mr Placko's own incontrovertible evidence is that he is still not qualified as a boilermaker in Australia and that he has, in a recent test, only been able to perform half of the welding tests satisfactorily.
The Seventh Issue - Having Regard to All The Matters Referred to in s.170CG(3)(a) - (e) Was the Termination Harsh, Unjust or Unreasonable Within the Meaning of s.170CE(1)(a) and was "A Fair Go All Round" Accorded within the Meaning of s.170CA(2)?
[64] Having regard to all the matters referred to is s.170CG(3)(a)-(e) I find that the termination of Mr Placko's employment on 6 January 2004 was
1. Not harsh - because, while it left him out of a job, he was paid all monies due to him; JDN had exercised considerable tolerance in not terminating his employment before 31 December 2003 considering the gravity of the situation with his work as highlighted by the rejection of his work by the Sydney customer in December 2003, and was certainly not disproportionate to the gravity of the problem JDN faced. Mr Placko took employment as a boilermaker/welder and he could not perform the duties of that position to an acceptable and reasonable standard.
2. Not unjust, because JDN had for six months counselled and warned Mr Placko and he had refused to accept the validity of what was being put, making unjustified excuses that his work had been altered by others or that he was being harassed due to his Workcover claim.
3. Not unreasonable, because the evidence before the Commission shows that one of the reasons for the termination of his employment, his poor quality work, was a serious problem posing safety issues for the customer and the risk of loss of business to his employer.
[65] The requirements of s.170CA(2) of the Act regarding a "fair go all round" clearly favour the employer in this matter. Mr Placko has been given six months of counselling and warnings about the quality of his work and declined to accept the advice offered. He has no-one but himself to blame for the situation he faced and, on his evidence before the Commission, he still does not accept that he has a problem. He does, and he should face up to it or face bleak employment prospects in the future.
DECISION
[66] I find that the termination of the applicant's employment by JDN on 6 January 2004 was not harsh, unjust or unreasonable.
ORDER
[67] I dismiss the applicant's application in this matter.
BY THE COMMISSION:
COMMISSIONER
Appearances:
Mr M Addison of the Automotive, Food, Metals, Engineering, Printing, and Kindred Industries Union for Mr Placko
Mr D Renehan of Kolly Pty Ltd for JDN Monocrane Pty Ltd
Hearing details:
2004
Melbourne
July 12
Printed by authority of the Commonwealth Government Printer
<Price code C>