Wheeler v Philip Morris Ltd
97 ALR 282(Decision by: Gray J)
Re: Ivor Terrence Wheeler
And: Philip Morris Ltd
Judge:
Gray J
Subject References:
Industrial Law
Judgment date: 23 June 1989
Melbourne
Decision by:
Gray J
THE CLAIM
This application was filed on 17th March 1988. In substance, the applicant, Ivor Terrence Wheeler, claims to have been dismissed from his employment with the respondent in breach of clause 6(d)(vi) of the Metal Industry Award 1984 - Part I ("the Award"). The Award was made under the Conciliation and Arbitration Act 1904 ("the Act"). Clause 6(d)(vi) provides, so far as is relevant, "Termination of employment by an employer shall not be harsh, unjust or unreasonable."
2. On 1st March 1989, the Act was repealed by s.3 of the Industrial Relations (Consequential Provisions) Act 1988, s. 67 of which provides that a proceeding of this kind is to be dealt with as if the Act had not been repealed. The Industrial Relations Act 1988, which replaced the Act, is therefore not relevant to this proceeding.
3. The jurisdiction of the Federal Court of Australia is attracted by the fact that the applicant seeks the imposition of a penalty for breach or non-observance of the Award. Section 119(1) of the Act provided for the imposition of such a penalty. Under s.119(2)(c), such a penalty could be sued for and recovered by any member of any organization who was affected by the alleged breach. The applicant is and was at the time of the alleged breach a member of the Electrical Trades Union of Australia, which was an organization of employees registered pursuant to the Act, and which was also a party to the Award. The respondent admitted that it was bound by the Award. Under s.119(3), the Court may order an employer in breach of an award to pay to an employee any amount to which that employee is entitled under an award, which has not been paid. Such relief is also sought by the applicant in this proceeding.
4. In addition, the applicant seeks relief by way of declaration, injunction and order for the payment of moneys. It is the applicant's object to show that a contract of employment between him and the respondent has never been brought to an end, and that he is entitled to be treated as if he has been an employee of the respondent at all times since his purported dismissal. Alternatively, if the contract did come to an end, the applicant seeks damages for breach of it. Counsel for the respondent made a formal submission that relief of these kinds could not be linked with claims under s.119 of the Act, for the purposes of falling within the accrued jurisdiction of the Court, or within the jurisdiction of the Court in its Industrial Division, pursuant to s.13(2) of the Federal Court of Australia Act 1976. The respondent did concede, however, that the decision of the Full Court in Gregory v. Philip Morris Ltd. (1988) 80 ALR 455 , especially at pp 480-481, was against it on this point. The submission was made with a view to keeping the point alive on appeal.
5. The trial occupied some thirteen days, five of them in July and the rest in November 1988. The length of the trial was largely due to the breadth of the issues of fact which were contested. In effect, the respondent contended that the dismissal of the applicant was the culmination of almost six months of conduct on the part of the applicant which warranted criticism. The Court heard evidence of a number of instances in which it was alleged that the applicant had been guilty of some misconduct or neglect. The case finally put for the applicant was that he was being singled out by the respondent for special treatment. In these circumstances, it is not surprising that both Mr. Bell of counsel for the applicant and Mr. Ginnane of counsel for the respondent were concerned to approach each issue of fact with great thoroughness. The result was a mass of very detailed evidence, which is more easily unravelled if dealt with under separate headings.
THE HISTORY
6. The applicant was born on 24th February 1935, and was therefore fifty-two years old at the time of his dismissal, on 4th June 1987. The respondent is a company, which carries on the business of manufacturing cigarettes and other tobacco products at premises in Moorabbin, a suburb of Melbourne. It employs a workforce of approximately 1200, including a number of maintenance personnel. The most substantial body of maintenance employees consists of fitters and their trades assistants, all of whom are members of the Amalgamated Metal Workers Union. Next in size is a body of about forty electricians and their trades assistants, all of whom are members of the Electrical Trades Union of Australia.
7. The applicant commenced employment with the respondent in 1974 or 1975. By studying part-time, and gaining extra qualifications, he ascended to the highest classification among the electricians employed by the respondent, that of electronics tradesman. By about 1979, he was working in part of the respondent's premises known as the electronics workshop, in a position in which he often worked alone or with one other person, repairing items that were brought to the electronics workshop by other employees. From 1982, he had the status of a leading hand.
8. During 1986, there arose an industrial issue as to the basis upon which tradesmen employed by the respondent should be paid. Some employees desired all tradesmen to be paid at the same rate as electronics tradesmen. This could only have come about if all but the electronics tradesmen had received a substantial increase in pay. Not surprisingly, fitters supported the claim for "wage parity". The electricians opposed it, except for a group of four, which included the applicant. Another member of the group of four was a Mr. Reginald Gregory, who was the shop steward for the members of the Electrical Trades Union of Australia employed by the respondent, but ceased to hold that position as a result of his stand on the wage parity issue. Substantial animosity developed between the other electricians and the group of four who aligned themselves with the fitters. The respondent's management thought it best to remove those four from the Moorabbin premises, and to send them to work at other premises it occupied at Braeside. Charges were laid against the four persons, purportedly under the rules of the Electrical Trades Union of Australia.
9. On 15th October 1986, the State Executive of the Electrical Trades Union of Australia heard the purported charges. It decided to expel Mr. Gregory from the Union, and to suspend the applicant and one Kevin Barratt from membership. In consequence of these decisions, Mr. Gregory was dismissed from his employment by the respondent. He succeeded in establishing that he had been so dismissed in breach of clause 6(d)(vi) of the Award, and in obtaining a judgment for damages. See Gregory v. Philip Morris Ltd. (1987) 77 ALR 79 and (on appeal) (1988) 80 ALR 455 . The facts leading up to the dismissal of Mr. Gregory are set out in detail in those judgments but the detail is not relevant to the present proceeding.
10. Having been suspended from membership of their trade union, the applicant and Mr. Barratt were suspended from their employment, on full pay, pending resolution of the question of their membership. The remaining member of the group of four, Leslie Bogar, was not the subject of any decision on the charges purportedly laid against him, which were said not to have been laid properly. The applicant and Mr. Barratt took proceedings in this Court with respect to their suspension. Before those proceedings were terminated, by letter dated 24th November 1986, the Electrical Trades Union of Australia informed the applicant that the charges against him were never properly laid and that the decisions with respect to himself and Mr. Gregory and Mr. Barratt were void and of no effect.
11. By invitation of the respondent, the applicant and Mr. Barratt attending a meeting on 2nd December 1986, at which discussions occurred about their reinstatement in employment. At that meeting, the respondent was represented by Mr. Brian Durham, its personnel director, and Mr. Barry Griffin, who was then its industrial relations manager, and who became employee relations manager in March 1987. They asked for and received a number of undertakings from the applicant and Mr. Barratt about their recognition of the then current shop steward for the Electrical Trades Union of Australia, their compliance with decisions taken by that union, their recognition of the division of union representation at the respondent's plant and their behaviour.
12. On the following day, 3rd December 1986, the applicant and Mr. Barratt returned to work at the Moorabbin premises of the respondent. Instead of going back into the electronics workshop, the applicant found himself transferred to the general workshop. His duties involved mainly going to various places in the factory, and carrying out installation, maintenance and repair jobs with respect to electrical and electronic equipment. Mr. Barratt was also attached to the general workshop. Often the applicant and Mr. Barratt were given jobs to perform together. To a large extent, this resulted from the fact that they were still shunned by other electricians. They were on friendly terms with many of the fitters, but not with the electricians, nor with the trades assistants who assisted the electricians.
13. The supervisor of the general workshop was Michael Kelzke. He was a man substantially younger than the applicant, who had been employed by the respondent for a shorter time than the applicant, but had obviously been considered worthy of promotion to the supervisor level. When Mr. Kelzke was first employed by the respondent, he and the applicant were on friendly terms, even to the extent of playing some golf together, and mixing socially. It is clear that they were no longer on such friendly terms after 3rd December 1986. Indeed, in determining whether the applicant's dismissal was harsh, unjust or unreasonable, it is crucial to determine precisely what role Mr. Kelzke played. His evidence was to the effect that he was a conscientious supervisor, trying to deal with an employee who refused to co-operate and to perform work in the correct manner. The case put on behalf of the applicant was that Mr. Kelzke became an excessively critical supervisor, singling out the applicant and Mr. Barratt for special treatment, whilst they carried out their work in the normal way. Before turning to the detailed issues involved in this argument, I shall turn to examine the immediate circumstances of the applicant's dismissal.
THE DISMISSAL AND ITS IMMEDIATE CAUSES
14. On 4th June 1987, the applicant was asked to perform a job in a part of the respondent's premises known as the dust room. To understand the function of the dust room, it is necessary to know something of the respondent's processes. In an area of the factory known as the making and packing floor, there are a large number of machines making cigarettes. Each of those machines has an extraction pipe for dust, a considerable quantity of which emanates from the tobacco used to make the cigarettes. The extraction pipes are connected to machines in the dust room, the object being to suck the dust into the dust room and collect it, so that it may be removed from the dust room for disposal. Inside the dust room are a number of machines, operated by electric motors. Some have large fans. At one end of the dust room is a switchboard, from which the machines can be controlled. In June of 1987, some of the machines were supported by steel frames, which were painted blue. Others rested on the floor. Underneath a machine supported on a steel frame, there could be placed a large carton, lined with polythene, and resting on a wooden pallet. Into the polythene-lined carton, dust would fall from the machine. Dust, polythene, carton and pallet were all removed regularly by an employee with a device capable of lifting the pallet. The pallet with an empty polythene-lined carton would then be replaced shortly afterwards. In this way, dust could be removed from the dust room.
15. It will be obvious from this description that the dust room was very noisy and extremely dusty. Dust was present in the air while the machines were operating, and fell on every surface. The dust room was cleaned frequently, so as to avoid a build up of dust on the surfaces.
16. It is necessary to describe in some detail the particular area in which the applicant was asked to perform work on 4th June 1987. Two machines were situated close to each other. One was an old machine, supported on a blue painted steel frame, with room beneath it for a pallet and a large carton. The other was a relatively new machine, installed during 1986 and positioned at floor level. It was known as the green dust extraction machine. The dust room contained a number of separate dust collection systems, designated by colours. Three, namely the blue, red and green central dust systems took dust from the making machines. The green dust extraction machine was part of the green central dust system, and was essential to its operation.
17. On 25th May 1987, Mr. Sydney Knight, who was then the production supervisor of the respondent, filled out a job requisition form. This form described the job title as "Removing disused wiring. Dust room." The description of work required was:
- "1.
- Please remove old fan wiring from base of green central dust seperator (sic.).
- 2.
- Please remove old fan wiring from floor just inside west end door.
- Wiring only needed to be removed from floor for ease of cleaning."
Mr. Knight transmitted this requisition to Mr. Kelzke, whose responsibility it was to allocate someone to perform the job. Mr. Kelzke allocated Mr. Barratt and Mr. Bogar. Mr. Knight subsequently received the job requisition form back, with the work "complete" written across it, between parallel lines, by Mr. Kelzke. In fact, when Mr. Knight went to the dust room to check on the job, it had not been completed. There were two sets of wiring encompassed by the job. That which was described as being just inside the west end door had been removed, but that which was described as being at the base of the green central dust separator was still there. Mr. Knight informed Mr. Kelzke of this. On 4th June, Mr. Kelzke instructed the applicant to finish the job. He told the applicant to contact Mr. Knight, to find out what Mr. Knight wanted done. The applicant contacted Mr. Knight. The two of them went to the dust room.
18. At that time, an observer standing in the narrow space between the green dust machine, and facing the blue frame adjacent to it, would have seen three items of wiring attached to the right hand upright of the blue frame, by means of metal fixing devices called saddles. The largest of the three items of wiring was a conduit, carrying power cables. The conduit was painted white until it reached a point where it bent away from the frame, low down, from which point it was painted blue. The cables within it were encased in grey plastic. The ends of these cables were lying on the floor of the dust room.
They had metal lugs attached to them. The second item of wiring was a grey conduit, containing cable described as coaxial cable. The end of this cable was also lying on the floor. The third item was a conduit. It appears that this conduit had carried its cables down the right hand side of the frame, and had then run horizontally above floor level, and then up to a point at which a housing, containing a stop button, had been bolted to something. Where this conduit was attached to the right hand side of the frame, it was painted white. From about the point at which it was bent to run horizontally it was painted blue. From a little more than half way across the horizontal section it was painted black. The first bend, at the right hand side of the frame, was simply a bend in the conduit. The second bend, designed to take the conduit up, was accomplished by means of a sleeve in the shape of an elbow. Adjacent to the stop button housing was another sleeve. The stop button housing was metal, and painted grey.
19. There is considerable controversy in the evidence as to the precise position of this third item of wiring. It is clear that the stop button housing was not bolted to the blue frame. The applicant's evidence was that the first bend in this conduit was greater than a right angle, so that the formerly horizontal part of the conduit had assumed a downward slope, and that the second bend, the formerly upright black part of the conduit and the stop button housing were lying on the floor. Mr. Knight's evidence was that although the formerly horizontal part of the conduit was no longer horizontal, it was at least "eighteen inches" above the floor, and the former black vertical portion was still upright, with the stop button housing tied or clipped temporarily to the left hand side of the frame. Late in the proceeding, Mr. Kelzke gave evidence of some measurements he had taken. The evidence was designed to show that, at whatever angle the formerly horizontal section of the conduit might have been, it would not itself have been resting on the floor. One problem with these measurements was that, at the time they were taken, it was impossible to tell at what height above the floor the horizontal part of the conduit would have been on 4th June 1987. This impossibility arose because of work performed since that date.
20. Upon a careful examination of the evidence, I am of the view that it is probable that at least the stop button housing was resting on the floor, and the black formerly vertical part of the conduit, and the sleeve elbow, were very close to, if not actually on, the floor. It is likely that the stop button housing had been in some way tied temporarily to the left hand side of the frame, but I am satisfied that it was no longer so tied when the applicant visited the dust room with Mr. Knight on 4th June. In making this finding, I accept substantially the evidence of the applicant, in preference to that of Mr. Knight. The fact that Mr. Knight failed completely to observe the conduit containing the coaxial cable suggests that he did not examine the area closely, whereas the applicant worked on each of the conduits for some minutes. Mr. Knight claimed that he had released the stop button to restart the machine to which it was connected, on that very morning, and that the stop button housing was the tied or clipped (he could not remember which) to the left hand side of the blue frame. Even if this were so, it is posible that subsequent operations of sweeping or pallet removal could have dislodged the stop button housing and caused it to fall onto the floor.
21. Each of the three items of wiring on the right hand side of the blue frame had been connected with an old machine, which had been situated approximately where the green dust machine now is. Contractors engaged by the respondent had removed the old machine, and installed the green dust machine. They had cut the cables in the large conduit, and the coaxial cable, and left them lying on the floor, where they impeded the sweeping of the floor. The wiring for the green dust machine was installed separately. It was by means of cables described as "orange circular". Orange circular cable is a metric cable, which had been in use in the respondent's premises for some years prior to 1987. The orange circular cables to the green dust machine were carried down to the machine from above, by means of a metal support known as cable tray, which protects the cable without enclosing it fully. The wiring attached to the blue frame made use of cables of kinds in use before orange circular came to be used.
22. The stop button conduit attached to the blue frame contained thirty-two volt wiring which was part of a s button circuit. Each of the machines in the dust room was equipped with its own stop button, attached to a stop button circuit. The pushing of a stop button would stop the machine to which the particular circuit related. It was normal to mount a stop button on the frame or housing of each machine, or on a wall nearby, so that the machine could be stopped from a position near it, without the need to go to the switchboard at the end of the dust room. It was also usual for a stop button to be labelled with the number of the machine to which it related. The contractors who installed the wiring to the green dust machine did not install a new stop button circuit. Instead, they made use of the one which had been used for the former machine. This was the one attached to the right hand side of the blue frame; it was not mounted securely on the left hand side of the blue frame, and not labelled at all. The stop button for the machine which the blue frame supported was on one of the uprights of the frame on the far side.
23. There is also a dispute as to what instructions Mr. Knight gave to the applicant. The applicant's version is that he was told to cut the cables which were lying on the floor, and that Mr. Knight pointed in the general direction of the bottom of the blue frame. Mr. Knight claims to have pointed to the larger conduit, at a point at about eye level, and to have instructed the applicant to cut the cables at about that point. There are difficulties about accepting Mr. Knight's version. He claimed that the stop button housing was not on the floor. He also did not see the coaxial cable, which was. His concern was removal from the floor, to assist in the sweeping of the dust room. In my view, it is unlikely that the applicant would have cut the large conduit at the low point where he did cut it if he had been instructed to cut it at a higher point. In all the circumstances, I think it more probable than not that the applicant was instructed in general terms to cut any cables that were lying on the floor.
24. After speaking with Mr. Knight, the applicant went to get his tools. He saw Mr. Kelzke and asked him whether the dust room was regarded as an isolated area. One of the safety practices operated by the respondent was that no-one should work alone in an isolated area. Mr. Kelzke told the applicant that, because of the number of people coming and going in the dust room, it was not an isolated area. The applicant therefore returned to the dust room alone, with his tools, and a dust mask.
25. The applicant tested the ends of the cables protruding from the large conduit and the end of the coaxial cable with a meter, which was designed to ascertain whether electric current was present in the cables. The meter showed no current. He therefore cut those cables, using a hacksaw to cut through the large conduit. He also unscrewed and opened the stop button housing and tested the two cables in the stop button circuit with the same meter. Again, the meter did not register any current. The stop button conduit was joined to another piece of conduit part way up the frame, by means of a joint known as a barrel union. The applicant removed the saddles below the barrel union, by cutting them with a screwdriver and a pair of pliers. He then unscrewed the barrel union and pulled the wires down as far as he could from the top section of the conduit. He then cut the wires just below the top section of the conduit.
26. This act of cutting the stop circuit cables stopped the green dust machine. There is no precise evidence as to how this occurred, but its occurrence was not in issue in the proceeding. Counsel for the applicant conceded in his opening address that the applicant had caused the green dust machine to stop by cutting the stop circuit cables.
27. The applicant finished this work at about 11.30 am. He went to the fitters' workshop to clean the dust off his spectacles. He also had a substantial amount of dust on his face, ears and clothes. Mr. Bill Wilson, a fitter, was in the fitters' workshop, and offered to dust the applicant off. When this was done, the applicant took his tools back to the electricians' workshop. A hard hat belonging to another employee was in his locker. He reported to Mr. Kelzke and told him that he was going to return this hat, and also asked him for a pass out to go off the premises at lunchtime. After returning the hard hat, the applicant went to a locker room to wash his eyes out, because they were irritated by tobacco dust from the dust room. He returned to collect the pass out, and left the premises at about 12.15 pm, with Mr. Barratt.
28. By prior arrangement, the applicant and Mr. Barratt went to a local hotel, to lunch with Mr. Gregory and a number of the fitters. The applicant gave evidence that they did this in order to look at some transcript of Mr. Gregory's proceeding in this Court. While they were there, Mr. Andrew Egan, the respondent's Electrical Maintenance Manager, and Mr. Ken Kanellopoulous, one of the supervisors employed by the respondent, came to the hotel. They sat at a table in a room other than the room in which the fitters, the applicant, Mr. Barratt and Mr. Gregory were gathered, but from which they could both see and be seen by the gathering. The two supervisors appeared neither to eat nor drink, although Mr. Egan gave evidence that he drank a squash. After about ten minutes, they left and returned to the respondent's premises.
29. At about 1.15 pm, the applicant also returned to the factory. He sought to report to Mr. Kelzke, but could not find him. He paged Mr. Kelzke several times from the latter's office. When he saw Mr. Kelzke, Mr. Kelzke told him to go to Mr. Egan's office. Mr. Kelzke told the applicant that he was required to go to Mr. Egan's office because of a problem with the dust room, but would not tell the applicant the nature of the problem.
30. At Mr. Egan's office, the applicant was told that he could have the Electrical Trades Union of Australia shop steward as a witness, if he wished. The applicant agreed, and the shop steward was brought to the office. His name was Neil Caughey. Once he was present, Mr. Egan accused the applicant of having stopped a dust motor, suggesting to him that considerable loss of production could have been involved. The applicant was asked to explain the procedure he had followed in the dust room. He did this. There was some discussion about whether his meter was working correctly. Mr. Kelzke and Mr. Caughey took the meter to another room and tested it on a 240 volt power point. They returned saying that the meter was working. Further discussion took place, in the course of which some criticisms of the applicant were expressed. It was suggested that he ought to have heard the green dust machine stop when he cut the stop circuit cables, and that he had left the end of the cables he had cut open, without sealing them off and labelling or tagging them. The applicant was then asked to wait in another office. After some time, he was called back to Mr. Egan's office. A further complaint was made that he had not told Mr. Kelzke that he had finished the dust room job, in breach of an instruction that he was to report to Mr. Kelzke at the completion of each job allocated to him. He was informed that he was dismissed.
31. There followed some formalities and arrangements consequential upon the termination of the applicant's employment. He signed a form entitled "Termination of Employment", which gave as the reason for termination "misconduct and neglect of duty". Mr. Kelzke took him to his locker, and asked him to hand over the tool box from the locker. The applicant told him that all of the contents of the locker belonged to the respondent. He changed into his street clothes in the locker room, and was escorted to the front gate. Staff from the pay office were waiting there, and handed him a cheque and a manual payment record. The cheque included five weeks' pay in lieu of notice, that being the amount to which the applicant was entitled under clause 6(d)(i)(1) and (2) of the Award, by virtue of his years of service. Subsequently, the applicant applied for and received a cheque for the amount standing to his credit in a superannuation fund in which employees of the respondent were participants.
32. The respondent devoted a substantial amount of its case to criticism of the applicant's handling of the dust room job. Mr. Barratt and Mr. Bogar, who gave evidence for the applicant, were cross-examined as to the manner in which they, as electricians, would have performed the job. Witnesses called on behalf of the respondent, who were qualified and experienced as electricians, also gave evidence of the manner in which they would have approached the task of cutting the cables. On the basis of the evidence so obtained, counsel for the respondent argued strongly that the applicant's performance on 4th June fell below the standard required of a tradesman electrician in the circumstances.
33. The gist of the criticism was that the applicant had not gone to the switchboard at the far end of the dust room from where he was working, and found the drawings which were kept in the switchboard, and which contained a diagramatic representation of all the wiring circuits in the dust room. The diagram showed numbers on various circuits, which corresponded with numbers which could be seen on cables in the switchboard. Someone with the requisite knowledge and skill, looking at the diagram, and at the numbers on the cables, would have been able to ascertain that the cables in the large conduit were dead, the coaxial cable was dead, but the stop circuit cables were still connected to the green dust machine and operative. Had this been done, at the very least it would have been open to the applicant to make specific enquiry as to whether his instructions included the cutting of the stop circuit cables. Further, standard electrical safety practice, and State Electricity Commission regulations, required that all cables be disconnected at the switchboard end, and that their ends be labelled. Because the applicant did not go to the switchboard, he did not do this.
34. On the basis of this evidence, I find that the applicant did fall below the standard of a reasonable tradesman electrician in the way in which he approached the dust room job. To make this finding, however, is not to reach any conclusion as to whether the manner of the performance of the job warranted his dismissal, or whether the dismissal constituted a breach of the Award. A number of factors mitigated the severity of the applicant's neglect on 4th June. The dust room was an extremely noisy and unpleasant place, in which no-one would want to work for more time than was absolutely necessary.
The cables in the large conduit and the coaxial cable were lying on the floor, and were clearly disused. Their ends had not been taped or sealed and were not tagged or labelled in any way. The applicant had been told that they were to be cut. He was entitled to assume that they were redundant. He may even have been entitled to assume that they had been disconnected and labelled at the switchboard end, in accordance with standard practice. The stop circuit conduit was very close to the large conduit and the coaxial cable. As I have found, the stop circuit housing was also lying on the floor. It therefore gave every appearance of being redundant as well. The impression of redundancy was no doubt strengthened by the age of the cables and conduits in question, especially when compared with the use of orange circular cable, and of cable tray, in connection with the green dust machine. It was more than a reasonable assumption to make that the contractors who installed the wiring to the green dust machine would have installed a new stop circuit on or near that machine itself. In other words, nothing about its appearance or location provided in the mind of a reasonable person, or in the applicant's mind, any likelihood of its connection with the green dust machine. There was a machine supported by the blue frame. This machine had the appearance of some age. Its stop button was not readily visible from where the applicant was working. The applicant said that, at the time when he did the job, there was no pallet or carton underneath the frame. Evidence was given by those who visited the dust room when the green dust machine was found to have stopped that both a pallet and a carton were sitting underneath the machine on a blue frame. It is quite possible that both the applicant and those witnesses are telling the truth.
The evidence of Mr. Knight was that pallets and cartons were removed and replaced twice in a day. The possibility that one had been removed before the applicant began his work, and replaced after he left, cannot be overlooked.
35. The impression that the applicant was dealing with old and redundant wiring was no doubt strengthened by the result he got from testing all the cables with his meter. The meter was a device which had been issued to him by the respondent, and was no doubt intended to be used by him for purposes such as ascertaining whether cables on which he was about to work were "live". The applicant made proper use of it and satisfied himself that the cables did not contain any electrical current. Nor did he see any evidence of electrical current when he cut the stop circuit cables. His evidence, which was undisputed, was that cutting live thirty-two volt cables would lead to a flash and a marking of the pliers used to cut the cables. Neither of these events occurred.
36. One matter which is not clear is precisely what view those who took the decision to dismiss the respondent took in relation to the applicant's testing of the cables. When he stated that he had tested the cables with his meter, steps were taken to see whether the meter was working properly. Apparently it was. It is unclear whether, as a result of this test, Mr. Egan and Mr. Kelzke disbelieved the applicant's statement that he had tested the cables, or whether they turned their minds to the question whether any explanation might exist for the failure of the meter to register the thirty-two volt current which the cables carried. It was not suggested to the applicant that he had lied about testing the cables, either in the interview on 4th June, or in the witness box. Some evidence was given that, if the transformer, which converted the 240 volt supply to thirty-two volts, was itself earthed, then using a meter to test the cables to earth, as the applicant did, would not produce a reading. The evidence of Mr. Griffin tended to show that an assumption was made that the applicant had not tested the cables with his meter. Not only was he not told of this assumption, or given an oppportunity to comment on it, but it was inherently unlikely to be true. An electrician would not be likely to risk exposing himself to live cables when he had the means at hand of ascertaining whether they were live.
37. Further criticism was made on the basis that the applicant had not been alerted to the stopping of the green dust machine by a change in the noise when that machine ceased to operate. Mr. Edward Mitchell, an employee of the respondent, was called to give evidence. He is a safety officer, who at the time of the trial was pursuing a course leading to a graduate diploma in occupational hazard management at the Ballarat College of Advanced Education. Mr. Mitchell took readings with a sound pressure level meter in the dust room, during the course of the trial. All of his readings in the dust room indicated noise levels in excess of ninety decibels. At various points, the reduction in noise level when the green dust machine was turned off completely was somewhat more or less than three decibels. Mr. Mitchell committed himself to the extraordinary proposition that a reduction of three decibels is the equivalent of a perceived reduction of noise level by half. This proposition was based on information that, if one machine is operating at a particular noise level, the operation of a second identical machine in the same vicinity will produce a noise increase of approximately three decibels. That proposition may very well be true, but Mr. Mitchell attempted to expand it into a universal proposition that, at any noise level, and with any number of machines, a reduction of three decibels is equivalent to a halving of the perceived noise level. I cannot accept this proposition. It obviously would not operate at the lowest end of the scale; if the original noise level were only three decibels, a reduction of three decibels would cut it to nil. The situation in which a number of noisy machines are operating in one room obviously cannot be compared with that in which two machines of similar noise level are operated in an experiment. I am satisfied that Mr. Mitchell did not understand enough of his subject to give proper expert evidence on it. In particular, I am satisfied that the switching off of the green dust machine, in the context of the continued operation of all of the other machines in the dust room, would not produce a dramatic reduction in noise level. There was evidence that turning off the current of the green dust machine would not bring it to an instant halt. Rather, it would take some minutes to wind down, during which time there would be decreasing fan noise, although no electric motor noise. There was also evidence that machines in the dust room had built in overload systems, which caused them to stop frequently. Even though Mr. Wheeler was standing right next to the green dust machine, he would not necessarily have noticed the significant reduction in the general noise level immediately upon cutting the stop circuit cables. If he had noticed such a reduction, he would not necessarily have connected it with the fact that he had cut the stop circuit cables. There was also some evidence from the applicant that he suffers from an impairment in his hearing, which excludes certain pitches. It is possible that he did not hear the precise pitch of the electric motor in the green dust machine, and was therefore unaware of its sudden cessation. No attempt was made to explore this question on 4th June before the applicant was dismissed.
38. One factor seems to have weighed heavily in the interview prior to the decision to dismiss the applicant. That is the allegation that considerable loss in production could have resulted from the stopping of the green dust machine. It is noteworthy that, at no time did the respondent allege any actual loss of production. All that was suggested was that the stopping of the green dust machine, if it had not been rectified quickly, could have led to significant loss of production. In fact, those on the making and packing floor realised quickly that the green dust machine was out of action. This was nothing out of the ordinary; because of the overload circuits, machines in the dust room frequently ceased to operate. Stoppages also occurred from time to time because of fires due to overheating, and because of the presence of foreign material in the tobacco. A build up of dust in the back of a cigarette making machine was the ordinary result of such a problem. An electrician would be despatched to reset the circuit breakers, and to restart the machine. This is what happened on 4th June. An electrician, Mr. Peter Laurence, went to the dust room and checked the overload system. He ascertained quickly that the stop circuit system had been cut. Steps were taken to override the stop circuit system at the switchboard, which enabled the green dust machine to be restarted. In view of what occurred, and of the evidence about the frequency with which machines in the dust room cease to operate, it is very unlikely that serious inconvenience to the respondent would have resulted from the stopping of the green dust machine. It is even more unlikely that substantial loss of production would have occurred. Mr. Egan's evidence was that, if the dust system was down for thirty or forty minutes, the respondent would start to lose a considerable amount of production.
39. The events of 4th June were not the only factors relied on by the respondent as justifying the dismissal of the applicant. Evidence was given, in some detail, of the history of the applicant's employment from his re-employment in December 1986 until 4th June 1987, and of a warning given to him on 24th March. The respondent relied on the events of 4th June, coupled with the other conduct and the warning. The argument was that, after 24th March, the applicant was in the position of one who had received a final warning, and understood that if he offended again in any way he was liable to dismissal. It is therefore necessary to examine the evidence as to the applicant's previous conduct, and as to the warning, before an assessment can be made as to whether the dismissal was in breach of the Award.
EVENTS PRIOR TO 24TH MARCH 1987
40. Mr. Kelzke and other witnesses called on behalf of the respondent gave evidence of a number of instances between the applicant's resumption of work in December 1986, and 24th March 1987, in which it was said that the applicant's work performance was unsatisfactory.
41. The first of the instances was on 20th December 1986. Mr. Kelzke said that at 7.45 am on that day, he assigned the applicant and Mr. Barratt a job of removing fluorescent tubes in a part of the respondent's premises known as the link building. At 8.30 am, Mr. Kelzke returned to the link building, to find that the applicant and Mr. Barratt were not there, and that no progress had been made on the job. He found them downstairs at a coffee machine in the main fitters' workshop. He asked them why they had not begun work, and the applicant said that he needed paper to clean his glasses. He asked Mr. Kelzke to fetch him some paper from the fitters' workshop, as he was not allowed in there. Mr. Kelzke obtained two sheets of paper for cleaning spectacles, gave them to the applicant, and sent the applicant and Mr. Barratt off to work. At 11.15 am, he went to check on them, and did not think that much had been done. At 11.45 am he found them walking past the fitters' workshop. The applicant said, "If you want us to work up there, you had better buy us gum boots". He informed Mr. Kelzke that the roof of the link building was leaking and was flooding their work place. Mr. Kelzke went to the link building and found part of the floor flooded. He did not think this was serious, as there was a space some short distance away, which was dry, and in which the work could have been performed. The applicant's account of this incident was that, while he and Mr. Barratt were removing components from fluorescent fittings in the link building, the floor became flooded as a result of a leaking roof. They reported this to Mr. Kelzke, who was unsympathetic, and told them to keep working. The applicant also denied any impropriety in asking Mr. Kelzke to fetch papers to clean his glasses. At the time when the request was made, Mr. Kelzke was in a position to obtain those papers quickly from an area which the applicant as an electrican, was not permitted to enter, namely a workshop occupied by fitters.
42. According to Mr. Kelzke's evidence, on 9th February 1987, he gave the applicant a job to fix a clock in the electrical workshop. The applicant took all day and did not complete the job, which was finished by another electrician in thirty minutes on the following day. On 10th February, the applicant and Mr Bogar were given a job of moving and installing some computer points in part of the making area at 7.00 am At 8.30 am, the applicant was seen by Mr. Kelzke talking to the fitters' shop steward, John Karadeas, in the fitters' workshop. The applicant said that he may have encountered Mr. Karadeas whilst going to collect some tools. At 2.30 pm, Mr. Kelzke said he saw the applicant and Mr. Bogar coming from the stemmery, a part of the respondent's premises nowhere near the job they were supposed to be doing.
43. On each of 11th and 12th February, Mr. Kelzke claims that the applicant failed to report to him, and that he had difficulty finding the applicant. On 13th February, the applicant did report to Mr. Kelzke in the morning, and was assigned a job. During the course of the morning, Mr. Kelzke saw him in several places where, according to Mr. Kelzke, the applicant was not supposed to be. On one of these occasions, the applicant was talking to Mr. Karadeas next to a coffee machine. Mr. Kelzke claimed to have paged the applicant several times. When he eventually confronted the applicant and Mr. Barratt, and asked them if they had finished the job, they admitted that they had.
44. There were further complaints of failure to report in the following week, on 16th, 17th and 18th February. On 16th, Mr. Kelzke assigned the applicant to fix a clock with an apprentice. In the afternoon, the apprentice complained to Mr. Kelzke that he was doing the job on his own. On 17th, Mr. Kelzke allocated to the applicant and Mr. Barratt a job of installing two dock lights on a piece of machinery known as the ITM dryer. On Mr. Kelzke's examination, the two of them spent all day on this job, and did nothing more than drill eight holes. According to the evidence of the applicant and Mr. Barratt, they did a substantial amount of work in the ceiling in preparation of the job, but were unable to complete it because the dryer was in operation all day. They spoke to Mr. Kelzke about this, and he said that he would get the night shift to mount and connect the lights, when the dryer was not working. In addition, the applicant and Mr. Barratt said that they asked Mr. Kelzke for a ladder, to obtain access to the roof space, but the ladder did not arrive for a substantial time. In the meantime, they were forced to use a ladder mounted on the wall some distance away, and negotiate the distance in the roof space. This involved avoiding walking on the ceiling, stooping or crawling under fixtures, and trying to stay clear of substantial amounts of broken glass, which were lying about. Eventually, according to Mr. Kelzke, the ITM dryer dock lights job took four working days, of which the applicant was at work for three and absent for one.
45. On 23rd February, the applicant and Mr. Barratt were given a job in an area known as the mux room, which involved tracing computer cables. According to Mr. Kelzke, they spent a week on this job, which was too long. On 24th, Mr. Kelzke said that he spent most of the day in the mux room and between 10.00 am and 2.00 pm saw no sign of either the applicant or Mr. Barratt, except on one occasion when they looked in and then left. The evidence of the applicant and Mr. Barratt was that the job was complex and difficult, and that they were working on it at all times.
46. On 3rd March, Mr. Kelzke claimed to have counselled the applicant and Mr. Barratt about their failure to report to him, both in the morning and after completing a job, and the length of time they were taking to complete jobs. He claimed to have instructed them to see him immediately any problem arose, and to wait in the main workshop if they could not find him. The applicant denied that this conversation occurred.
47. Mr. Kelzke said that on 5th March the applicant and Mr. Barratt took over half an hour having morning tea, and took all day to find a fault in one printer cable. He complained of perfunctory reporting in the morning on 6th March, and failure to commence a job within a reasonable time. He also claimed to have seen the applicant and Mr. Barratt in the fitters' workshop, drinking coffee and talking to fitters for an inordinate length of time.
48. On 18th March, the applicant and Mr. Barratt were said to have spent five hours fixing one fluorescent light, and to have failed to start another job. The applicant denied these allegations.
49. One of the greatest difficulties in determining what did occur on these occasions was that the applicant denied completely many of the incidents alleged. Mr. Kelzke's evidence was assisted by a diary which he kept, to which further reference will be made.
50. The applicant did complain about Mr. Kelzke's conduct in some respects. He referred to a job which he and Mr. Barratt were obliged to do, for which they needed a ladder to obtain access to the roof. They asked Mr. Kelzke to direct a trades assistant to bring a ladder, but the ladder never arrived. They took this non-arrival to be part of the continuing dissaffection between members of the Electrical Trades Union of Australia and themselves, and were concerned that Mr. Kelzke did not appear to take their side with respect to it. Apparently, the ladder was delivered to another part of the premises.
The trades assistant who delivered it gave evidence that this was due to a mistake or misunderstanding.
51. The applicant also claimed that he complained to Mr. Kelzke on one occasion that he had been given clips of the wrong size for a particular job. He took the clips back to Mr. Kelzke, who took them and walked off. The applicant assumed that Mr. Kelzke would bring him the correct clips, which were kept in a locked cupboard to which Mr. Kelzke had the key. Mr. Kelzke returned, however, and expressed annoyance at finding the applicant still waiting. He then gave the original clips back to the applicant and told him to use them anyway.
52. The applicant also said he saw Mr. Kelzke hiding behind some boxes and apparently spying on him on one occasion. Mr. Bogar gave evidence that Mr. Kelzke appeared to check on the applicant and Mr. Barratt more frequently than he did on other electricians.
53. The applicant referred to an occasion on which a new electronic instrument was introduced. The applicant asked Mr. Kelzke to explain to him how to use the instrument. He was given a brief and, according to him, inadequate explanation, and then was handed the instrument and told, "You know how to use it." The applicant also gave evidence that on one occasion he was rewiring a machine called the smoking machine. He had not completed the job at the end of a working day. On the following morning, he found that alterations had been made to the wiring on which he was working, the effect of which was to make the wiring live and potentially dangerous to any person working with it. He believed that the work had been tampered with by another electrician, so as to make it dangerous to him. He complained about this to Mr. Kelzke, who, according to the applicant, seemed unconcerned about the tampering. In fact, Mr. Kelzke reported the allegation to Mr. Egan, who prepared a notice warning employees of dismissal if such an act were repeated. The applicant complained that the notice was not displayed prominently, and took the view that Mr. Egan should have called a meeting of electricians to warn them orally.
54. There was some dispute on the evidence about reporting requirements. The respondent's case was that Mr. Kelzke had imposed on the applicant a requirement to report to him immediately after clocking on every morning, at least as early as 16th February, and possibly as early as 11th February 1987. The applicant claims that he understood that he had to report immediately after clocking on if he did not have a job to do, but was obliged to go straight to a job if he had not finished it on the previous day. Mr. Barratt's evidence was that Mr. Kelzke had imposed a requirement on him and on the applicant to report every morning, at some time prior to 24th March.
55. According to the applicant, reporting after the completion of jobs was sometimes difficult, because Mr. Kelzke could not be found, and would not respond when paged. The paging system did not involve the person being paged knowing the identity of the person instituting the page, so it cannot have been the case that Mr. Kelzke was avoiding the applicant. Between December 1986 and March 1987, Mr. Kelzke wsa responsible for a major project in the stemmery, which occupied a lot of his time. Although he tried to spend time in the stemmery outside normal day shift hours, he did concede that the project affected his availability to those under his supervision to some extent.
56. The applicant also complained that, when he did attempt to report to Mr. Kelzke in the mornings, Mr. Kelzke was sometimes not there because he (Mr. Kelzke) was late arriving for work. Mr. Kelzke denied that he was ever late for work.
THE WARNING OF 24TH MARCH 1987
57. On 24th March 1987, the applicant was called to Mr. Egan's office by Mr. Kelzke. The purpose of this call was to conduct an interview with the applicant about alleged disciplinary problems. Mr. Barratt was also called to Mr. Egan's office for a similar purpose, but the two interviews were conducted separately.
58. Present with Mr. Wheeler were Mr. Egan and Mr. Kelzke. The applicant was asked whether he wished to have a shop steward with him, as a witness, and to assist him. The applicant expressed the view that an electricians' shop steward would be of little assistance to him. He was asked whether he would like to have someone else present. He asked for Mr. Barratt to be present, but was told that this was not permitted. He was offered a supervisor, and chose to have a Mr. Walter Beorner, a supervisor from the packing department. Mr. Beorner was sent for.
59. During the interview, allegations were made concerning periods of time taken to complete jobs, and failure to report completed jobs and to seek new work. Allegations were also made of abuse of other electricians, and of an instance of assault. According to the applicant's evidence, none of these allegations was accompanied by specific examples, even though he asked for them, and for the identity of the alleged victim of assault. I am satisfied, however, that there was some discussion about the ITM dock light job, and a job which the applicant and Mr. Barratt had begun on 23rd March, replacing fluorescent tubes in the change room. It was this latter job which caused the interview on 24th to be conducted. During the interview, the applicant told Mr. Kelzke for the first time that the job had been finished. His evidence was that it was finished just before the interview began. The applicant gave a brief account of reasons for the delays in these two jobs, but no detailed discussion took place. He was told that his excuses were not accepted. The applicant's evidence was that he believed he knew of the incident which had given rise to the allegation of assault; he claimed that it involved brushing passed an electrician named Darren Besley in a confined space in the locker room.
60. After the discussion, the applicant was given a warning that he was liable to dismissal if he offended again, and a direction to report to Mr. Kelzke within ten minutes of clocking on each morning and upon completion of jobs. This direction included a requirement that if Mr. Kelzke should be on the telephone or away from his office or in discussions, the applicant was to wait outside Mr. Kelzke's office until he came.
61. A file note was made up, relating to this interview, and headed "Disciplinary action against Ivor Wheeler". The contents of the note were as follows:
"I. Wheeler was requested to report to the Electrical Maintenance Manager's Office to discuss issues pertaining to his work performance and allegations of abuse and assault.
A. Egan questioned I. Wheeler about the extraordinarily long periods of time taken to complete jobs and his lack of initiative in not reporting completed jobs and seeking new work.
Discussion also took place on ETU allegations of abuse and assault.
After deliberating on I. Wheeler's responses, A. Egan considered them to be totally unsatisfactory and I. Wheeler's conduct to be inexcusable. Accordingly, he was given a final warning to be placed on his file and a copy given to him.
I. Wheeler was advised that any further incident relating to his employment, including: malingering, inefficiency, neglect of duty or misconduct would result in his immediate dismissal.
A. Egan further directed that I. Wheeler report to M. Kelzke within 10 minutes of clocking on each morning. Should M. Kelzke be on the telephone, absent from his office, or in discussions, I. Wheeler was directed to wait outside his Supervisor's Office. Upon completion of jobs, I. Wheeler is to report immediately to M. Kelzke, or, in his absence, A. Egan."
The file note was signed by Mr. Egan. At its foot, it contains a notation that copies were sent to Mr. Weller (the respondent's engineering manager), the applicant, Mr. Kelzke and Mr. Griffin.
62. The applicant was upset about the allegation of assault. Later on the same day, he went to see Mr. Egan and complain about the assault allegation, asking that it be taken off his record. Mr. Egan responded that it was only an alleged assault, and would not agree to remove it from the applicant's record. It was suggested to the applicant in cross examination that, having chosen to challenge only one of the matters put to him at the interview of 24th March, he must have accepted the validity of all of the others. The applicant did not accept this. In fact, as emerged in Mr. Egan's evidence, the applicant complained to him about Mr. Kelzke's attitude, and alleged that Mr. Kelzke was incompetent. He also denied to Mr. Egan that Mr. Kelzke had given him prior warnings about delay and failure to report.
INCIDENTS AFTER 24TH MARCH
63. The respondent's case is that the applicant's diligence and punctuality did not improve significantly between 24th March and 4th June. For a month of this period, from 21st April until 20th May, the applicant was on annual leave.
64. On 1st April, Mr. Kelzke gave the applicant a job involving a computer terminal. The terminal was operated by Julie Ashton, an employee of the respondent, and was non-operational. The applicant was asked to make it operational again. During the morning, Mr. Kelzke met Ms. Ashton by chance. She thanked him for getting her computer terminal working again. An hour passed before the applicant reported to Mr. Kelzke for another job. The applicant's evidence was that, although the computer terminal was operating again, there was still work to do in finishing off the job and tidying up, and that he was doing this work.
65. On the same day, Mr. Kelzke gave the applicant instructions to remount an electric clock on a wall in the making and packing department. According to Mr. Kelzke, the applicant took an inordinate amount of time over this job, and did not complete it until some time the next day. When Mr. Kelzke inspected the clock, he found that it had been fixed to the wall at an odd angle. The applicant's evidence was that he was instructed to mount the clock as it had been mounted. It had been mounted not flush with the wall, but on a mounting block, which caused its face to be angled away from the wall. He had acted in accordance with his instructions, and used the same mounting block.
66. In respect of 10th and 13th April, Mr. Kelzke made further complaints about the applicant not getting on with jobs, and taking excessive breaks in tea rooms. He also complained that, on one occasion, the applicant's reporting to him consisted of walking past, while Mr. Kelzke was talking to other electricians. Mr. Kelzke described this as a "Clayton's reporting". He said he expected the applicant to wait and speak to him each morning, even if the applicant had an incomplete job on which he was going to continue working.
67. On 27th May, the applicant was given a job changing some fluorescent light tubes in a passageway. It was alleged that he dropped and broke two of these tubes. According to Mr. Kelzke, this was not the first occasion on which the applicant had dropped fluorescent light tubes and then called for a trades assistant to clean up the broken remains of them. He alleged that trades assistants complained about this, believing that the applicant was dropping and breaking light tubes deliberately, so that they would be called to clean up the mess.
68. On 1st June, according to Mr. Kelzke, the applicant told him that he could not find a 20 mm. reducer. Mr. Kelzke told him that they should be in the store, and he said that they were not. Mr. Kelzke went out of his way to the store and found the reducer in what he said was an obvious place.
69. On the following day, 2nd June, according to Mr. Kelzke, the applicant said he could not find any 20 mm. conduit. Mr. Kelzke sent a trades assistant to the store, and he found plenty of this conduit in the usual place. On the same day, the applicant and Mr. Barratt advised Mr. Kelzke that more flex was needed. Mr. Kelzke claimed that they should have told him this at an earlier time. The applicant and Mr. Barratt claimed that they did tell Mr. Kelzke at an earlier time, but that he did nothing about obtaining any more flex.
DID THE APPLICANT'S BEHAVIOUR WARRANT CRITICISM?
70. A determination of the substantial question whether the applicant's diligence and standard of work were such as to warrant criticism, or whether he was a victim of unwarranted criticism is not easy. At its most basic level, it involves reconciling a good deal of conflicting evidence. In the particular case, it is made much more difficult by the refusal of the applicant to concede in cross examination that some of the incidents to which Mr. Kelzke and others deposed had even occurred and that Mr. Kelzke had been critical of him in respect of a number of others. Mr. Ginnane argued that this refusal to concede the occurrence of events or the making of criticism showed that the applicant was not prepared to be frank with the Court, and was therefore not giving evidence in accordance with his oath. Mr. Ginnane argued that this lack of truthfulness had two consequences. The first was that any factual dispute should be resolved against the applicant. The second was that he should be deprived of any relief, even if he were otherwise entitled to some.
71. There is no general principle that a party to court proceedings who fails to tell the truth is bound to lose, and to lose completely, on that ground. Deliberate falsehood on oath is punishable separately as a criminal offence, and not by deprivation of rights which exist otherwise. A court is bound to find the facts as best it can according to the evidence before it. There can be no mechanical process of finding every aspect of a case against a party who has refused to be frank with the court in some respects. This is not to say that the court condones evidence given otherwise than in accordance with an oath or affirmation. It is simply to draw attention to the function of a court in a civil case. It is true that there are some remedies, notably equitable ones, which may be denied to a party otherwise entitled to them on the ground that that party has failed to approach the court in a conscientious manner. For the most part, however, parties will not be deprived of remedies to which they are otherwise entitled, even if they are found to have failed to reveal the whole truth.
72. It is therefore necessary to proceed to resolve the major issue of fact, recognising that such resolution is made more difficult by the applicant's silence on a number of incidents, but examining the evidence which is before the Court as best can be done. The applicant's reluctance to give complete evidence may be explained by one or both of two factors. It may have resulted from a desire to mislead the Court. Alternatively, it may have been produced by a belief by the applicant in his own innocence of the conduct alleged against him on the various occasions. The applicant did not give the impression of being a deliberately untruthful witness. His evidence is better described as that of an unhelpful witness. A strange feature of the case is that the applicant's counsel should have opened, in general terms, the proposition that Mr. Kelzke became an over-critical supervisor, but that the applicant should not have been willing to give evidence about many occasions on which it might have been said that Mr. Kelzke behaved in that fashion. This tends to suggest a reluctance by the applicant to emphasise matters which might be construed against him, rather than a deliberate intent to claim that the incidents never occurred. Mr. Barratt was somewhat more objective, and gave evidence about a number of the incidents, and conceded that he and the applicant were criticized for slowness and failure to report, although his position was clearly one that put Mr. Kelzke in the wrong and the applicant in the right in respect to the crucial question as to which of them was at fault in the conflict. Mr. Barratt explained his own failure to protest at what he saw as Mr. Kelzke's unjustified criticism by saying that he did not think any reply was worthwhile, because Mr. Kelzke had his mind made up and would not change it. Nor did he think it worth speaking to Mr. Egan. Mr. Bogar was involved in relatively few of the incidents, but his evidence tended to confirm the view that the applicant's behaviour did not warrant Mr. Kelzke's reaction to him.
73. Given the difficult state of the evidence, it is wise to attempt as far as possible to resolve the central question by reference to objectively known factors, and inherent probabilities. In this respect, several facts are worth noting.
74. The respondent's case involves the proposition that the applicant changed his ways in a marked fashion after his resumption of work in December 1986. Mr. Egan gave evidence that, prior to 1986, the applicant was one of the respondent's hardest triers among electricians. He described the applicant as an average electrician with a good attitude. If the evidence of Mr. Kelzke is accepted, his attitude to work and his performance of it underwent a dramatic change in and after December 1986. It is difficult to see how a change in the applicant's competence could have occurred. His qualifications and experience show him to have been skilled as an electrician. Indeed, the work which he was given between his re-employment and his dismissal was predominantly work which was well within the standard of the applicant's qualifications and experience as an electronics tradesman. No reason was advanced as to why the applicant should have become less competent. It was therefore necessary for the respondent to postulate that the applicant had adopted an attitude towards his work which caused him to refrain from exercising the level of competence of which he was capable. Again, this seems to have been an unlikely occurrence. The events which occurred in early December 1986 no doubt impressed upon the applicant the importance of his behaving well. Further, if all of the events of which Mr. Kelzke gave evidence occurred, there were many occasions on which the applicant was reminded of his obligations. On the respondent's case, the applicant must have taken a deliberate decision to be unco-operative, and to have maintained this position in the face of repeated admonitions and the warning of 24th March. No real explanation was advanced as to why the applicant should have adopted such a position, when it was very much at his own risk to have done so. In my view, it is unlikely that he would have done so. A more likely explanation for what was seen by the respondent's officers as lack of co-operation and poor workmanship is that the applicant saw himself as working in the normal way, and found it difficult to understand why he was being told repeatedly that he was not doing so.
75. Mr. Kelzke gave evidence that, at various stages during the relevant six months, he believed or suspected that the applicant was attempting to give him "the run around". It appeared that, as part of an earlier industrial dispute, all of the fitters and the electricians and their assistants employed by the respondent had adopted a tactic described as "running the supervisors off their feet". The essence of this tactic was for employees not to be where the supervisor would expect to find them, not to co-operate in the performance of any particular task, and to attempt to have the supervisor performing fruitless errands as often as possible. No doubt this tactic had very considerable effects when carried out consistently by the whole of the maintenance staff of the respondent. A moment's thought would have given rise to the conclusion that it would be impossible for one or two or three electricians to implement such a tactic effectively. Indeed, any attempt to do so could only result in some disciplinary action being taken against a small number of employees who endeavoured to give their supervisor the run around. It was never put squarely to the applicant, or to Mr. Barratt or Mr. Bogar, in cross examination that any plan existed to give Mr. Kelzke the run around. In respect of one incident, the applicant was asked whether this was what he was attempting to do. He denied it. In the course of cross examination about the 20 mm conduit incident of 2nd June, the applicant was asked, "See I am putting to you that this was all part of a game, that you were trying to give Kelzke a hard time?" The answer of the applicant to this question was unresponsive but the question was not pursued any further. Mr. Kelzke gave evidence that the applicant had explained to him the operation of the run around early in Mr. Kelzke's days of working for the respondent. This was hardly a sound basis on which to assume that the applicant was attempting to reproduce this system with Mr. Kelzke. It is improbable that the applicant was attempting to do so.
76. Of considerable importance in determining the crucial question in this proceeding is the diary kept by Mr. Kelzke. That diary was tendered in evidence. It is an ordinary A5 size diary, showing two days to a page. It contains numerous entries, made by Mr. Kelzke. The first entry appears on a page designated for notes, before the pages marked with dates and days of the week begin. That entry is in respect of 20th December 1986. There are frequent entries up to and including 2nd June 1987, two days before the applicant was dismissed. Thereafter, there are some entries in the diary, but they are much less frequent.
77. The evidence of Mr. Kelzke, and of Mr. Egan, was that the latter suggested to the former that he should keep a diary in which to record any problems he may encounter as a supervisor. Mr. Kelzke said he understood that the purpose of keeping the diary was to have it available as evidence, if there should be any proceeding arising out of any industrial dispute. Mr. Kelzke said that the diary was used to record all manner of problems, not just those relating to the applicant, Mr. Barratt and Mr. Bogar.
78. An examination of the diary discloses that the vast bulk of the entries, particularly those up to and including 6th June 1987, relate to one or more of the applicant, Mr. Barratt and Mr. Bogar. Certainly, other names are mentioned, but their mention is infrequent and insignificant, alongside the number of entries and the detail written about the applicant, Mr. Barratt and Mr. Bogar. It is significant that, where other names are mentioned, both a surname and a given name are usually written in the diary. Where the applicant, Mr. Barratt and Mr. Bogar are mentioned, they are usually designated simply by their given names. This is particularly the case in relation to the applicant and Mr. Barratt. In one case, they are referred to simply as "the three". The entries do not constitute an objective factual record. In many cases, they are written in highly critical terms. In respect of 19th February 1987, there is to be found a lengthy description of some alleged misbehaviour of Mr. Barratt, which concludes with the remark, "I shall have to talk more sternly to him and for that matter of fact Iva (sic.) as well". In the course of an entry on 2nd March, there appears the sentence "Iva (sic.) and Kevin are still up to there (sic.) vanishing tricks." In an entry for 2nd April, there appears the statement, "I think Iva (sic.), Kevin & Les are trying to set me up."
79. There is evidence that it was not the practice for the respondent's supervisors to keep diaries of this nature. Indeed, Mr. Kelzke seems to have been the only one who kept one, and the first half of 1987 seems to have been the only period in respect of which he made many entries in it. All of this evidence leads to the conclusion that Mr. Kelzke was keeping a diary at that time particularly because he had under his supervision the applicant, Mr. Barratt and Mr. Bogar, and particularly because he wished to make entries with respect to them. It is not surprising that the respondent should have expected some difficulty in re-introducing the applicant and Mr. Barratt to working amongst the other electricians, having regard to the events which had occurred prior to their return to work. It is therefore not surprising that it should be thought that some record, in the form of a diary, ought to be kept, in case any future dispute should require evidence of events which occurred. What is surprising is that entries in that diary should relate almost entirely to three particular persons, and should be in such terms as they were. That is to say, it would be surprising unless a conscious decision had been made to give particular attention to the manner in which three persons performed their work. In my view, that is the only conclusion which can be reached as to why Mr. Kelzke kept his diary. He was determined that there should be as full a record as possible of every event as a result of which the applicant, Mr. Barratt and Mr. Bogar could be viewed in an unsympathetic way, and that the entries should be written so as to ensure that they were so viewed. Further, Mr. Kelzke never revealed to that applicant, Mr. Barratt or Mr. Bogar that he was making entries in a diary about them, and never gave them any opportunity to see what was written and to discuss its accuracy.
80. Some confirmation of the intention of Mr. Kelzke and Mr. Egan in keeping the diary is found in their own evidence. Although Mr. Kelzke gave evidence of occasions on which he was "harassed" by fitters in the six months after the applicant's return to work, he did not record any of those instances of "harassment" in the diary. If the diary had been intended to be a record of industrial disturbance, these matters would surely have been entered in it. Mr. Kelzke was unable to explain in his evidence why one entry in the diary recorded that Mr. Barratt was on holidays. He did not make a practice of recording the absence on leave of employees under his supervision. According to Mr. Egan's evidence, as early as December 1986, Mr. Kelzke had complained to him that he was being given the "run around". This complaint resulted in Mr. Egan's advice that Mr. Kelzke keep the diary.
81. Further evidence confirming the intention of the respondent's management to treat the applicant, Mr. Barratt and Mr. Bogar differently from other maintenance employees, because of their involvement in the 1986 dispute with the other electricians, is provided by one of the events which occurred on 4th June 1987. When the applicant and Mr. Barratt left the respondent's premises, to go to lunch at a nearby hotel, Mr. Egan and Mr. Kanellopoulos went to the same hotel, where they spent about ten minutes observing the applicant associating with Mr. Gregory and the fitters. It was Mr. Egan's suggestion that this surveillance be undertaken. In their evidence, he, Mr. Kelzke and Mr. Griffin all sought to justify it on the basis that they were checking to see whether the applicant was suffering from some domestic problem which may have caused him to shut off the green central dust machine. This is an explanation which cannot be accepted. Obviously, the best way to ascertain whether the applicant was preoccupied by some domestic problem would have been to ask him that question in the interview on 4th June. The subject of domestic problems was not mentioned. Further, the fact that the applicant lunched at a hotel with fitters and Mr. Gregory did not establish that he had no current domestic problem. All it proved was that the applicant did not attend to a domestic problem during that lunch break. The most probable explanation for the surveillance of the applicant was that the respondent's management still had a particular concern that the applicant was aligning himself with the fitters, and thereby prolonging difficulties between himself and the electricians. This concern led to the respondent's management giving particular attention to the manner in which the applicant, Mr. Barratt and Mr. Bogar conducted themselves.
82. The evidence provides a clear impression that working conditions accepted at the respondent's plant facilitated the giving of special treatment to someone in the applicant's position. Rooms with tea and coffee facilities were provided in various places throughout the plant. The nature of the manufacturing and packing processes required the respondent to ban smoking in the areas where those processes were conducted. No doubt because a company in the respondent's trade could hardly be seen to condemn smoking, it provided the rooms with tea and coffee facilities, to enable its employees to go somewhere and smoke. The applicant was the subject of much criticism from Mr. Kelzke for being in these tea rooms while he was allocated a job. It is clear that the applicant did not accept that taking a break in a tea room was something he ought not to do. This was because he and other maintenance employees were accustomed to taking such breaks from time to time. In normal circumstances, management did not object to this. The flexibility of this sort of arrangement, however, gave Mr. Kelzke every opportunity to record instances of the applicant not actually performing the job which he had been asked to do. In this way, Mr. Kelzke was able to build up much of the detail in his diary against the applicant, in circumstances in which the applicant could not be expected to realise that the rules had been changed so far as he was concerned, and he was no longer allowed to take the breaks he and other employees had been accustomed to taking.
83. I do not accept that the applicant set out deliberately to perform his work badly, or to take excessive time over it, or to give Mr. Kelzke the run around. Indeed, there was little in the way of suggestion of intent put to the applicant in cross examination. Nor do I accept that the applicant inadvertently ceased to be a competent employee, and a reasonably diligent one. To a minor degree, he was inconvenienced by lack of co-operation from other electricians, and from trades assistants. In those instances, when he informed Mr. Kelzke of the inconvenience, Mr. Kelzke gave him little support.
In his evidence, Mr. Kelzke made no secret of his disapproval of the actions of the applicant and the three other electricians with whom he aligned himself in the dispute with the fitters in 1986. I am of the view that Mr. Kelzke saw himself as a supervisor who had been given special responsibility to watch carefully the performance of three employees, including the applicant, who were regarded as malcontents by the respondent's management. Mr. Kelzke's concern was to record everything he could to the applicant's detriment, in the belief that one day that material might be used to safeguard the respondent's interests in some proceeding which may have resulted from allegations about treatment of the applicant or questions of his continued employment. Special restrictions and obligations were placed on the applicant and he plainly had difficulty adjusting to these, because they were so different from the working arrangements which he had known. At one stage in his evidence, Mr. Kelzke conceded that he had "stepped up the amount of surveillance" on the applicant and Mr. Barratt, and said that Mr. Egan had agreed with this increase in surveillance. Mr. Egan's evidence confirmed that he did not normally receive reports from supervisors on the conduct of employees under their control, but that he did receive frequent reports from Mr. Kelzke on the behaviour of the applicant, Mr. Barratt and Mr. Bogar in the six months leading up to the applicant's dismissal.
84. The applicant was not given any sympathetic treatment as a result of the dispute with the other members of the Electrical Trades Union of Australia and with that union. Although difficulties in his relationship with other electricians stemmed from the attitudes of those other electricians, as well as the applicant's attitude, Mr. Kelzke and others in the respondent's management tended to blame the applicant for continuing problems. He was regarded as causing trouble by his determination to continue socialising with the fitters and refusing to mend relationships with the electricians. At no stage did the respondent's management offer counselling, advice or assistance to the applicant to help him come to terms with the electricians. At all times, the onus was placed upon him.
85. On 2nd December 1986, both the applicant and Mr. Barratt showed eagerness to be reinstated in their old positions. They approached Mr. Weller and Mr. Griffin separately early in January 1987, with further requests to be allowed to return to their former duties. They were fobbed off. At no stage did the respondent give the applicant any effective explanation as to why he could not return to the electronics workshop. At no stage was he given encouragement or assistance in undertaking work in the general workshop, which included work of kinds with which he had not been familiar for some years. He was left to cope as best he could, expected to "fit in" and expected to perform to a high standard.
86. To the extent to which this proceeding turns upon the issue whether the applicant neglected his duties and was dilatory about their performance, or whether Mr. Kelzke was excessively demanding and critical, I am of the view that the latter situation was more probable than the former. Mr. Kelzke's interpretation of events was coloured by his attitude to the applicant; as a result, his evidence of the various incidents put the applicant in a much worse light than was justified. Mr. Egan did not take the trouble to investigate matters, but was content to accept Mr. Kelzke's reports as accurate.
WAS THE DISMISSAL A BREACH OF AWARD?
87. It is clear from a reading of the joint judgment of Wilcox and Ryan JJ. in Gregory v. Philip Morris Ltd. (1988) 80 ALR 455 that clause 6(d)(vi) of the Award operates in both a procedural and a substantive way. At p 473, their Honours said:
"We would not wish to propound any universal rule, but it seems to us that a provision such as that contained in cl.6(d)(vi) of the Metal Industry Award may often necessitate consultation with the employee before a decision to dismiss."
At p 471, their Honours said:
"The question whether a decision is harsh, unjust or unreasonable must be determined in the light of the facts as they appear at the relevant time. We accept that, if the relevant facts are not clear, it is the obligation of an employer bound by a provision such as cl 6(d)(vi) to establish those facts before dismissing an employee: cf the observation of Lord Mackay of Clashfern in Smith v City of Glasgow District Council (1987) IRLR 326 at 329: "As a matter of law a reason could not reasonably be treated as sufficient reason for dismissing Mr Smith when it had not been established as true nor had it been established that there were reasonable grounds upon which the special committee could have concluded that it was true."
But, provided that the employer discharges the obligation to investigate the facts, a dismissal does not contravene the provision merely because it later appears that the true facts differed from those which appeared at the date of the decision to dismiss. Clause 6(d)(vi) is intended to operate in a practical way in a commercial and industrial environment."
88. In the present case, it is clear that the respondent did not discharge the obligation to investigate the facts properly. No attempt was made to resolve in the minds of those present at the interview with the applicant on 4th June 1987 what had occurred in the dust room. No conclusion was reached as to whether the applicant had acted deliberately, to sabotage the green dust machine, or whether he had been negligent. Mr. Egan gave evidence that he entertained the belief that the applicant's action may have been malicious, but did not communicate this to any other management personnel involved, and treated the case as one of negligence. The question of malice was never put to the applicant. Mr. Griffin said he believed that the applicant had heard the green dust machine stop and had deliberately not told anyone. He did not participate in any discussion with the applicant on 4th June, but was consulted by Mr. Egan and Mr. Kelzke before the applicant was first interviewed on that day, and again when the decision was made to dismiss. It was put to the applicant in the interview that he must have heard the machine run down, but only by inference from this that he had resolved not to tell anyone. Mr. Kelzke gave evidence that he thought the applicant intentionally rushed the dust room job so that he could go to lunch at the hotel with the fitters. This belief was never the subject of discussion with the applicant.
89. Further, all those who participated in the decision to dismiss, and who gave evidence, held a belief that the applicant was engaged in giving Mr. Kelzke the run around. Conclusions as to Mr. Kelzke's views on this subject, and as to the unlikelihood of their being accurate have been expressed earlier in this judgment. On the basis of Mr. Kelzke's reports, Mr. Egan believed in the run around theory. His evidence was that he thought the applicant had aligned himself with the fitters, and that they were also engaged in the run around. The run around allegation had been relayed to Mr. Griffin. He gave evidence that, on 4th June, he held the view that the applicant was involved in "some sort of game play with his supervisor". At the time of the trial, he still believed that the applicant harassed Mr. Kelzke, and gave him the run around. Not the slightest attempt was made, on 4th June or at any other time, to communicate these views to the applicant, and to give him an opportunity to refute them if he desired to do so. As I have said, no real attempt was made to put them to the applicant in cross examination at the trial. There is a high probability that they weighed on the minds of those who contributed to the decision to dismiss.
90. Other aspects of the respondent's handling of the dismissal also give rise to disquiet. The applicant's failure to report to Mr. Kelzke that he had completed the dust room job was relied upon. In truth, this amounted to no more than a technical breach; the applicant saw Mr. Kelzke, asked for a pass out, told him he was returning a safety helmet, and presented himself after the dust had been cleaned off him. The fact that he did not use words which disclosed that he had finished the job may have had more impact on Mr. Kelzke and Mr. Egan who were concerned that the applicant had been involved in "Clayton's reporting" than it did on the applicant, who had not been made aware that his reporting had to involve more than just being seen. In evidence, Mr. Kelzke conceded that the applicant could have had an honest belief that the manner of his reporting on 4th June indicated that he had finished the dust room job, but maintained his belief that the applicant had failed intentionally to report.
91. In other respects also the respondent's investigation of the facts on 4th June was inadequate. Mr. Kelzke and Mr. Egan talked to Mr. Knight, and ascertained from him his version of the instructions which he had given to the applicant as to the dust room job. That discussion was not in the applicant's presence, and he was given no chance to dispute Mr. Knight's version. The terms of the instructions given were important in evaluating the applicant's standard of workmanship, and the version of them given by Mr. Knight at the trial I have not accepted as true. In addition, Mr. Kelzke gave evidence that he formed a view that the appearance of the dust room job, as the applicant left it, was unworkmanlike. He said the conduits and cables had been left with jagged ends, on which, "you could quite easily catch your trousers...or your leg". If this factor contributed to Mr. Kelzke's view that the applicant should be dismissed, it was never the subject of discussion with the applicant. Finally the question of the applicant's alliance with the fitters, and his alleged failure to make sufficient efforts to rebuild relationships with the electricians was not raised with the applicant on 4th June, although it weighed on the minds of Mr. Kelzke, Mr. Egan and Mr. Griffin. In the circumstances, it is impossible to say even now, after having heard lengthy evidence and cross examination, what were the precise reasons for the dismissal. The selection of the phrase "misconduct and neglect of duty" as the official written description of the reason for the applicant's dismissal seems to have been chosen in an attempt to fit in with provisions of the Award justifying instant dismissal, rather than to record the substance of the real reasons. It is a phrase which conceals more than it reveals.
92. The persons who made or contributed to the decision to dismiss, particularly Mr. Kelzke and Mr. Egan, attempted to justify the dismissal in their evidence on the most favourable view of the facts from the applicant's point of view. They were inclined to say that, even if all else were disregarded, the fact that the applicant did not do all that a reasonable electrician would have done in relation to the dust room job justified dismissal in itself. Under the earlier law relating to wrongful dismissal, it was open to an employer to justify a dismissal retrospectively, by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, or by reference to a correct analysis of facts which were known, but which were analysed incorrectly at the time of the dismissal. It is clear from the judgments in Gregory v. Philip Morris (1988) 80 ALR 455 that cl.6(d)(vi) of the Award does not permit that sort of approach. It is necessary to look at the circumstances known to the employer, and to ask whether the employer acted reasonably in the light of them, and particularly whether the employer discharged adequately the obligation to investigate the facts. An inadequate investigation of the facts may lead to a conclusion that there has been a breach of cl. 6(d)(vi), even if the facts do turn out favourably to the employer upon later investigation.
93. In the present case, later investigation of the facts does not show the dismissal of the applicant to have been other than harsh, unjust or unreasonable. To the extent to which the dismissal was based on the events of 4th June, I have already expressed the view that those events did not justify dismissal. Although the applicant's standard of workmanship on that occasion fell below that which would have been expected of a qualified electrician, a number of factors mitigated the degree to which his workmanship justified criticism. To the extent to which the dismissal depended upon the fact that the applicant was subject to the final warning given on 24th March, that warning itself was flawed. It was inadequate procedurally, in that the applicant was not given sufficient detail of the allegations against him, or sufficient opportunity to refute them if he could or to comment upon their severity. The warning was also the result of the approach taken by Mr. Kelzke in his supervision of the applicant, as to which I have already expressed the view that Mr. Kelzke did not act properly. Similarly, criticism levelled at the applicant's conduct after 24th March was largely the product of the approach taken by Mr. Kelzke in his supervision of the applicant. My views as to this approach during that period have also been expressed. It follows that no proper ground existed for dismissing the applicant on 4th June. The grounds on which the respondent purported to dismiss him were not the subject of adequate investigation. His dismissal was harsh, unjust and unreasonable and amounted to a breach of cl. 6(d)(vi) of the Award.
THE QUESTION OF REMEDIES
94. The decision that the respondent has acted in breach of cl. 6(d)(vi) of the Award in dismissing the applicant raises first the question of an appropriate penalty for that breach under s.119 of the Act. By virtue of s.119(1D)(a)(i), the maximum penalty is $1,000. This maximum does not provide a great range for distinguishing between breaches according to their severity, or according to the previous history of the person who has committed them. In the present case, two factors tend to suggest that a penalty near the maximum is appropriate. The first is the nature of the breach itself. It was neither innocent through ignorance of the provisions of the Award, nor the result of having chosen some construction of the Award which was arguable but turned out to be wrong. The second factor is that the respondent has been found to have committed a previous breach of the same term of the same award in previous proceedings, namely Gregory v. Philip Morris Ltd. (1988) 80 ALR 455 . Proceedings with respect to that finding were on foot at the time of the applicant's dismissal. For these reasons, in my view, a penalty of $900 would be appropriate. Since the applicant has sought to enforce the Award in his own right, it is appropriate to order, pursuant to s.120 of the Act, that the penalty be paid to him.
95. Following the reasoning of the majority in Gregory v. Philip Morris Ltd. (1988) 80 ALR 455 , at pp 478-479 it is clear that the breach of award also amounts to a breach of contract, because the term of the Award that a dismissal would not be harsh, unjust or unreasonable was implied by law into the applicant's contract of employment with the respondent. It is upon the basis of a breach of contract that the applicant claimed equitable relief and declaratory relief. His claims for relief of these kinds depend upon the question whether the contract of employment was brought to an end as a result of the dismissal, or whether it remains on foot. It is now well established that a contract of employment, like any other contract, cannot be terminated unilaterally otherwise than in accordance with its terms. See Turner v. Australasian Coal and Shale Employees' Federation (1984) 6 FCR 177 , at pp 189-193 and Seymour v. Stawell Timber Industries Pty. Ltd. (1985) 9 FCR 241 , especially at pp 265-266 in the judgment of Gray J. If the breach by one party amounts to a repudiation of the contract, i.e. the breach evinces an intention by that party no longer to be bound by the contract, the other party has an option. He or she may elect to treat the contract as at an end, or to treat it as continuing. The option must normally be exercised soon after the wronged party becomes aware of the breach. If the election is to treat the contract as at an end, it is final, and the contract cannot thereafter be revived. Conduct inconsistent with a recognition of continuing obligations under the contract will ordinarily amount to an acceptance of the repudiation as bringing the contract to an end. The wronged party must act on the basis that both parties are still obliged to perform the contract, in order to demonstrate an election to keep it on foot. See generally Sargent v. ASL Developments Ltd. (1974) 131 CLR 634 , at p 646, in the judgment of Stephen J.
96. It is only when an employee, who has been purportedly dismissed, elects to keep the contract of employment on foot that a declaration can be granted that the contract remains on foot, or that an injunction or decree of specific performance of the contract of employment will be considered by the Court. It has never been suggested that the granting of such relief will occur in the normal case. Rather, the authorities make clear that declaratory or equitable relief will be exceptional, largely because the mutual confidence necessary to the relationship of employer and employee may have been destroyed or the obligations to be enforced would make continued supervision of the relationship necessary. See Gregory v. Philip Morris Ltd. (1988) 80 ALR 455 , at pp 481-482. There are recent indications in the judgments of the Court of Appeal in Powell v. Brent London Borough Council (1988) ICR 176 that courts may be less ready than in the past to hold that mutual cnfidence has been destroyed. See especially the judgment of Ralph Gibson L.J. at pp 195-196 and the judgment of Nicholls L.J. at pp 198-199. In some cases, orders can be made which will not necessarily require continued supervision by a court.
97. There is at least one practical reason why the grant of such relief will be rare. It is that, in most cases, dismissed employees will find it difficult to conduct themselves so as to make it clear that the contract of employment remains on foot. It will be an unusual case in which an employee, as a practical matter, will be able to continue to present at the place of employment and request work each day, as was done by the plaintiff in Automatic Fire Sprinklers Pty. Ltd. v. Watson (1946) 72 CLR 435 , and by the apprentices in Seymour v. Stawell Timber Industries Pty. Ltd. (1985) 9 FCR 241. The necessity to earn money in order to live will ordinarily dictate that an employee refused work after a purported dismissal will be motivated to seek and obtain a job elsewhere. The uncertainties of pursuing a legal proceeding with a view to resuming work at a later date, coupled with a claim for wages in the meantime, and the difficulty of justifying the claim for wages in the meantime by demonstrating readiness and willingness to work, will often discourage people from claiming relief of that nature. For practical purposes, an early start to a legal proceeding, coupled with an application for an interlocutory injunction, restraining the employer from putting into effect the purported dismissal, will often be the best choice.
98. Seeking and obtaining alternative employment will usually amount to an election to treat the contract of employment as having come to an end. This is because, in the normal case, a person who becomes party to another contract of employment puts it out of his or her power to perform the previous one. Such a person will generally be occupied during the hours which the previous contract of employment would have required to be worked, and will normally only be able to return to work for the previous employer after having given the requisite notice to terminate the new contract. For this reason, it is difficult for a person to find other employment, and to maintain at the trial of a legal proceeding some months later the proposition that he or she has elected to keep the earlier contract of employment on foot. Perhaps the taking of temporary or casual employment, coupled with a clear statement of readiness and willingness to resume work at any time, may not amount to an election to treat the contract as at an end. See Ford v. Council of the City of Lismore (Supreme Court of New South Wales, Allen J., 21st March 1989, not yet reported, at p 19).
99. In the present case, the applicant has found and remains in other permanent employment. On 3rd September 1987, some three months after his dismissal by the respondent, he began work for a company called Skilled Engineering. On 28th September, he began work for the Australian Postal Commission. He has continued in that employment since. In so doing, he has demonstrated an election to treat his contract of employment with Philip Morris Ltd. as no longer in existence, and has thereby disentitled himself to any declaratory or equitable remedy.
100. A question also arose whether the applicant had demonstrated an election to treat the contract as at an end by taking proceedings under the Industrial Relations Act 1979 (Vic.), seeking reinstatement. The suggestion was that, by claiming reinstatement, he had acknowledged that he had been dismissed validly, reinstatement being a matter of returning to a position which has been lost. I do not accept that this is so. The definition of "industrial dispute" in s.3(1) of that Act contains words specifically including "a dispute arising from the dismissal or threatened dismissal from his employment of an employee." I doubt whether the word "dismissal" in that definition would be construed properly if it were confined only to a valid and effective dismissal. The obvious purpose of the legislation would be subverted if the definition were not applied in a case of purported dismissal.
101. In view of the fact that the contract of employment between the applicant and the respondent came to an end, as a result of the applicant's conduct which amounted to an acceptance of the respondent's repudiation of the contract, the only remedy open to the applicant under the law relating to contracts is damages. There is no remaining entitlement under the Award, which the Court could order the respondent to pay to the applicant, pursuant to s.119(3) of the Act. As is apparent from Gregory v. Philip Morris Ltd. (1988) 80 ALR 455 , the damages which can be awarded for a breach of a term such as that implied by cl.6(d)(vi) of the Award are to be assessed differently from damages calculated for wrongful dismissal at common law. Those damages were limited to the period of notice which the employer was obliged to give. Where the dismissal is the result of a breach of award, damages will be assessed for loss of the opportunity to continue the employment, discounted appropriately for forseeable events which might have brought the employment to an end.
102. In assessing damages, account will be taken of all benefits, pecuniary and otherwise, which a dismissed employee enjoyed in the job from which he or she has been dismissed, including any statutory or other entitlement not to be dismissed otherwise than upon compliance with certain conditions. See Ford v. Council of the City of Lismore (Supreme Court of New South Wales, Allen J., 21st March 1989, not yet reported, at p 29). In the present case, the applicant's employment with the respondent, if it had continued, would have been protected by cl. 6(d)(vi) of the Award, so that the applicant could only have been dismissed validly if the termination of his employment was not harsh, unjust or unreasonable.
103. Both Mr. Kelzke and Mr. Egan gave evidence that, had it not been for the dispute in which the applicant became involved in 1986, he would have been expected to remain a leading hand in the respondent's electronics workshop until he reached retiring age. By 4th June 1987, the dispute between the applicant and the Electrical Trades Union of Australia no longer threatened the applicant's continued employment. He would therefore have been expected to enjoy the benefits of employment by the respondent for approximately another thirteen years if his dismissal had not occurred. These benefits included pay rates, allowances, superannuation entitlements and long service leave entitlements which were more generous than those found generally in private industry, and payment of health benefits cover. Against these benefits must be set the remuneration which the applicant might reasonably obtain from employment elsewhere. The result must be discounted for foreseeable events, such as the possibility that the applicant might have chosen to retire early, or have died or suffered ill health before turning sixty-five, or the chance that some new developments may have provided cause for his dismissal otherwise than harshly, unjustly or unreasonably. In the present case, there is also the factor that a good part of the applicant's remuneration was derived from working overtime. Mr. Griffin gave evidence of a resolve by the respondent to reduce the amount of overtime worked. The process of discounting is necessarily imprecise.
104. Some part of the evidence was devoted to mitigation of damages, the question being whether the applicant took sufficient steps to obtain new employment at an appropriate remuneration. Evidence was given of a number of job applications and their results, and I am satisfied that the applicant acted reasonably in this regard.
THE CALCULATION OF DAMAGES
105. The first question which arises is whether a calculation of the loss suffered by the applicant as a result of his dismissal should be based on gross earnings, or earnings after tax. In Atlas Tiles Ltd. v. Briers (1978) 144 CLR 202 , the High Court dealt with a case of damages for wrongful dismissal. The Court took the view that those damages should be calculated by reference to likely gross earnings, and not likely earnings net of income tax. Subsequently, in Cullen v. Trappell (1980) 146 CLR 1 , the High Court held that in assessing damages for personal injuries, a Court should take into account the income tax which the plaintiff would have had to pay on the earnings of which his injuries had deprived him. This view, however, was based on the proposition that an award of damages was not itself taxable. At that time, s.26(d) of the Income Tax Assessment Act 1936 provided that the assessable income of a taxpayer should include "five per centum of the capital amount of any allowance, gratuity or compensation where that amount is paid in a lump sum in consequence of retirement from, or termination of, any office or employment, and whether so paid voluntarily, by agreement or by compulsion of law." In his dissenting judgment in Atlas Tiles Ltd. v. Briers (1978) 144 CLR 202, at p 227, Gibbs J. (as he then was) expressed the view that where such a small portion of an award of damages was subject to tax, the award of damages should be treated as non-taxable for the purpose of determining whether it should be assessed according to gross or net earnings. The dissenting view of Gibbs J. prevailed in Cullen v. Trappell (1980) 146 CLR 1 .
106. Section 26(d) of the Income Tax Assessment Act 1936 has now been repealed. The provisions of sub-division AA of Part III of that Act now include in assessable income any "eligible termination payment". That phrase is defined in s.27A(1) as including "any payment made in respect of the taxpayer in consequence of the termination of any employment of the taxpayer...". Under s.27A(3), a payment is an eligible termination payment whether it is made voluntarily, by agreement or by compulsion of law. So much of an eligible termination payment as is referrable to employment occurring after 30th June 1983 is now included in a taxpayer's assessable income. See s.27B(1). In my view, these provisions operate to make taxable an award of damages for dismissal in a case such as the present. They thereby undermine the reasoning in Cullen v. Trappell (1980) 146 CLR 1 , and dictate that the recipient of damages should receive them calculated according to rates of gross earnings.
107. In the present case, it was agreed that the applicant's gross earnings from the respondent at the time of his dismissal on 4th June 1987 amounted to $785.52 per week, including normal overtime and other benefits. His weekly wage for the three weeks while he worked at Skilled Engineering was $486.18. After 28th September 1987, when he began working for the Australian Postal Commission, his weekly wage was $486.53 per week. The cheque given to the applicant on his dismissal included a sum for five weeks' pay in lieu of notice. He is therefore entitled to eight weeks at $785.52 per week in respect of the time during which he was unemployed, a total of $6,284.16. He is entitled to a further three weeks at $299.34, being the difference between what he would have earned working for the respondent and what he earned working for Skilled Engineering, a total of $898.02. He is further entitled to a continuing loss of $298.99 per week from 28th September 1987, that being the difference between his earnings from the respondent and from Australia Post, discounted appropriately. It is necessary to discount heavily in respect of the applicant's future. This is because, on his own evidence, the possibility existed of promotion within the Australian Postal Commission to a level which would remunerate him at a rate similar to that paid by the respondent, from mid 1989. The loss from 28th September 1987 until 18th November 1988, when the trial ended, was $17,640.41. In respect of the future, in my view, a further amount of $12,000.00 should be allowed, this being the future loss, discounted in respect of the possibility of promotion, as well as the possibility that other events might have brought about the end of the applicant's employment with the respondent or the reduction of his income from overtime. I would award a total figure of $36,822.59 for damages. Application has not yet been made for interest pursuant to s.51A of the Federal Court of Australia Act 1976, but I will hear counsel on the question if such an application is made.
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