C2006/2570, Transcript of Proceedings [2006] AIRCTrans 882 (12 July 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15328-1

COMMISSIONER GAY

C2006/2570

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED LEIGH VIRTUE & ASSOCIATES
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2570)

SYDNEY

10.01AM, THURSDAY, 29 JUNE 2006

Continued from 28/6/2006
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

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PN1

THE COMMISSIONER: In this case the Commission is asked to determine the merits of a dispute which has arisen between Toyota and the AMWU. The dispute is raised pursuant to provisions of the Toyota Workplace Agreement, Port Melbourne, Sydney and Regions 2005. Shortly put, the parties are agreed that they will accept and apply the decision of the Commission. The dispute concerns the circumstances surrounding and the decision taken by Toyota as to the employment of Mr Ross Wighton, a storeperson with slightly less than four years effective service at Toyota. Mr Wighton's employment was terminated following a review conducted by Toyota into three instances relating to attendance for duty which Toyota maintains are sufficient jointly or severally to justify termination of Mr Wighton's employment.

PN2

Mr Wighton has been suspended from duty with pay since 4 May 2006, when the decision to terminate his employment with notice was advised to him. The matter came on for conciliation in Sydney on 31 May 2006 when, despite the earnest efforts of the parties, it was necessary for directions to issue and the questions involved to be determined. Mr Sachinidis appearing for the Vehicle Division of the AMWU represented Mr Wighton, while Mr Reitano of counsel appeared by leave for Toyota.

PN3

Before turning to the specifics of the case it should be understood that in an attempt to hasten the delivery of a conclusion for the parties I am prepared to indicate the position arrived at with a general outline only as to why it is that I have come to the view that I have reached. To reserve my decision now would involve considerable delay and in my view would not be in the interests of the parties. It must be appreciated as a consequence of that that not all the complex web of circumstance and evidence heard by the Commission over this hearing is sought to be dealt with in these short reasons.

PN4

While I have paid close regard for all the evidence and argument it is neither desirable nor necessary to canvass it all here now. By not reiterating an argument I do not intend to indicate that it has not been considered, similarly I will not set out the factual background and all the competing arguments. They're well known to the parties in any event. The three attendance issues all relate to the period surrounding the Anzac Day public holiday in April of 2006. The first is the fact of Mr Wighton attending for duty 40 minutes late on Friday, 21 April, not at 6.30 am but at about 7.10 am.

PN5

The second and third are Mr Wighton's not presenting for duty on Thursday,
27 April and Friday, 28 April 2006 when he was, in Toyota's view, rostered on. Mr Wighton's case is essentially that he contacted his supervisor shortly before his arrival on 21 April and advised of his lateness. Seen in this light it is said not to warrant serious penalty and ought not reasonably be called up to buttress or contribute a basis for a dismissal. As to the fact of non attendance on
27, 28 April, it was said that Mr Wighton had obtained the specific approval of his supervisor Group Leader Richardson for those days to be taken as RDOs, which days can be accumulated and moved about subject to the terms of the agreement and the agreement of the relevant Toyota officer.

PN6

Mr Wighton acknowledged that he had the keenest of interests in careful and timely management of his RDOs so as to maximise the benefits to him by linking the RDOs to other days off, public holidays or annual leave. Mr Wighton and Mr Richardson were as one in acknowledging the emphasis given to this leisure maximisation by Mr Wighton as he sought to assiduously combine his various entitlements, as of course he was able to do.

PN7

Accordingly in or around March of 2006 after some delay in publishing a roster of employees' RDOs for 2006, early in the new year period, Mr Wighton's evidence is he approached Group Leader Richardson in Mr Richardson's office and sought for Thursday the 27th to be recorded in the Toyota system as an RDO. By Mr Wighton's account Mr Richardson obliged, having first carefully checked his computerised records to establish that he had not already given days off to others in the section so as to mean that by application of local Toyota operational orders or rules they could not be allocated as rostered days off for Mr Wighton.

PN8

Following this check by Mr Richardson, Mr Wighton's evidence was that he saw Mr Richardson enter the relevant dates into the computer, saying done mate. By Mr Wighton's account his roster for the Anzac Day week then appeared as follows. Monday the 24th, annual leave applied for in late January, Tuesday the 24th, the Anzac Day public holiday, Wednesday, 26th, an RDO applied for on
30 January, and Thursday and Friday the 27th and 28th, approved in March by Mr Richardson.

PN9

Mr Kenneth Goyen averred that at about March 2006 he had observed from outside the office Mr Richardson approving Mr Wighton's RDO request. Mr Goyen said he understood the conversation to be dealing with these matters. Mr Wighton's evidence also recorded a conversation he had on Friday, 21 April, as to whether he might work on the Thursday and Friday, 27 and 28 April, RDOs rather than have them off. Mr Wighton said that he was told by Mr Richardson that as he, Mr Richardson, was to be off all the Anzac Day week Mr Wighton should speak to the acting group leader on Wednesday the 26th and check the possibility of his early return.

PN10

Mr Richardson's evidence was that he had had no conversation with Mr Wighton as to RDOs in April for the 27th or the 28th. Mr Richardson was aware that Wednesday was an RDO for Mr Wighton as he had approved it on 31 January, as I've earlier indicated. Mr Richardson agreed that Mr Wighton had raised a possibility of his resuming work early on his Anzac Day week RDO. Mr Richardson's evidence was that the question related only to the rostered day off on Wednesday, not days off. Mr Richardson said he told Mr Wighton to ring the day prior and check with the supervisor as "you can't just show up."

PN11

Mr Wighton spoke with Acting Group Leader Prasad on Wednesday, 26 April, and told him that he had Thursday, Friday off as RDOs and asked whether it would be okay to come into work and work my RDOs if I wanted to. On Mr Wighton's account Mr Prasad indicated that he had thought Mr Wighton to be on annual leave for the Anzac week, but if they were banked RDOs he could not see a problem with me coming into work if I wanted to, in Mr Wighton's words.

PN12

Mr Prasad's evidence was not materially different, in that he had said that returning from RDOs should be all right. Mr Prasad's account of the conversation places no emphasis on Mr Wighton retaining a discretion or a capacity to return to work early and then electing not to do so. It is clear that there were various drafts in relation to the RDO rosters prepared early in 2006. It is also clear in my view that previous drafts were superseded by later drafts and all rendered obsolete by the final schedule posted in March.

PN13

There is of course in this case real conflict in the evidence given which requires determination. As to any residual uncertainty which existed in anyone's mind Mr Wighton in my view cannot be said to have been uncertain as to his RDO entitlements over the Anzac period after the conversation he had had with Mr Richardson, first in his office in March when the capacity for the 27th and 28th to be RDOs for Mr Wighton was checked, agreed to by Mr Richardson, and the computer system adjusted accordingly, and secondly - and this is of course on Mr Wighton's account - in the warehouse conversation on 21 April when Mr Wighton says he and Mr Richardson discussed the capacity for he, Mr Wighton, to come in and work on the 27th and 28th scheduled RDOs and, more generally, that Mr Wighton was to be offered a whole week in the context of that conversation, it might be recalled, of expected rain.

PN14

Mr Richardson's evidence is that these conversations either did not occur or took a different course and did not deal with 27 and 28 April. If Mr Wighton's account is to be accepted, Toyota's records are faulty and he was entitled to be absent on
27 and 28 April. There would only remain a question as to whether by virtue of his telephone call of 26 April to Mr Prasad, Mr Wighton had obligated himself to attend for 27 and 28 April.

PN15

If Mr Richardson's account is preferred, Mr Wighton was absent without leave on the 27th and 28th in circumstances where he knew he was obliged to attend and, moreover, a large part of his case, it's been put to the Commission, would be based on falsehood. If Mr Richardson's account is preferred, there remains the fact of non attendance on the 27th and 28th and of the call to Mr Prasad of 26 April. While it is not strictly necessary to consider the fact of the call to Mr Prasad on 26 April, it might be thought that such a call reflected a subtle ruse on Mr Wighton's part to legitimise his absence on the 27th or 28th. This is if Mr Richardson's account is to be preferred.

PN16

The fact of Mr Wighton's non attendance on the 27th and 28th despite Mr Prasad's approval might be thought to fortify such a conclusion, that is, that having received permission of Mr Prasad he still did not attend. These are not easy questions in my view to decide. However, on the balance of probability I have concluded that Mr Richardson's evidence is to be preferred. I do so for a number of reasons, in no particular sequence. That Mr Richardson has no reason of which I became aware to cause harm to Mr Wighton, that against the Toyota party line Mr Wighton's attendance had in Mr Richardson's view in some way improved, also Mr Richardson's delicacy about some personal aspects relevant to Mr Wighton, that is he, Mr Richardson, declined to indulge in commentary about some personal element. Had there been some animus between the two, that is in my view something that could have been expected to have been properly divulged by a person responding to a question in the box.

PN17

Further, that Mr Richardson was ready to accept Mr Wighton's strength when attending, his strength as an employee, as in capacity when attending for duty. Further, that Mr Richardson presented as a group leader entirely prepared to permit whatever flexibility existed to ensure the maximum RDO benefit went to employees who were endeavouring to string sequences of days together. Mr Richardson did not appear in any way resentful of Mr Wighton's maximisation behaviour.

PN18

It follows from this, that is the conclusion, that on balance I accept Mr Richardson's evidence that there was no authorisation of the 27th and 28th, and I am unable to conclude if there existed some other logical basis upon which Mr Wighton could hold the view that the days were approved. As to the telephone call of Mr Wighton of 26 April to Mr Prasad upon which reliance is placed, I am of the view that objectively the transaction saw Mr Wighton advised of his alleged RDO status and asked whether he might work on the 27th and 28th. Mr Prasad's advice was in the affirmative. Mr Prasad was well able to assume that Mr Wighton would act on Mr Prasad's agreement to him, Mr Wighton, working.

PN19

Having sought permission to work on the putative RDO Mr Wighton had no discretion, certainly without further contact with his supervisor, to not attend. Mr Wighton was indicating he wanted to work on the Thursday and Friday, and Mr Prasad acquiesced. Understood in this light, any obligation said to rest on Toyota to make contact with Mr Wighton was satisfied by Toyota's understanding that Mr Wighton was to attend on the 27th and 28th.

PN20

Mr Sachinidis, in his able submission, sought for a second chance for Mr Wighton, and in doing so Mr Sachinidis acknowledges that Mr Wighton's attendance has been very poor, but suggests that it has shown signs of improvement. It is probably true that statistically Mr Wighton's absences from duty have become less regular. Toyota highlights that his attendance at work has been very poor, so that from 2004 until 20 February this year Mr Wighton had had some 64 days variously certificated and variously attaching to public holidays and weekends, not all attaching to those days.

PN21

Mr Wighton had two written final warnings following many preliminary counsellings and advice. That material is on the file. Additionally, Mr Wighton had on 20 February received a further letter of expectation - that's my description of it - setting out Mr Wighton's need to subscribe to the relevant policies and not to breach them. This comes after two written final warnings. I'll not set out the contents of the letter of expectation, the parties are well aware of them and they were absolutely unequivocal. Mr Morton's letter concludes by advising Mr Wighton that his attendance "has reached a critical point."

PN22

It is right to have regard for this situation in considering Toyota's intention to raise the lateness of 21 April with Mr Wighton upon his arrival on 27 April, or whenever his first attendance was. It formed part of the reason for his dismissal. In my view Toyota were able to regard Mr Wighton's lateness on 21 April as misconduct. Employees on final warnings are not required to adopt the standards of angels, but they must exhibit in my view conduct which goes to show their acceptance of reasonable obligations and reflect in actual fact that they value their jobs.

PN23

For these reasons I am unable to conclude that Mr Wighton's termination was such as to require the Commission's intervention, because in my view the obligations of a proper attendance arising from the agreement and Toyota's justifiable expectations had been seriously breached. The termination was not harsh, unjust or unreasonable. I will now adjourn sine die.

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