FF100210291

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES AARON DALE TASKER

APPELLANT

 -v-

 SINOGAL PTY LTD TRADING AS ROCKINGHAM AUTO ELECTRICS & MECHANICAL SERVICES

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  CHIEF COMMISSIONER W S COLEMAN

  COMMISSIONER S WOOD

DELIVERED THURSDAY, 9 MAY 2002

FILE NO/S FBA 57 OF 2001

CITATION NO. 2002 WAIRC 05513

_______________________________________________________________________________

Decision  Appeal dismissed.

Representation

Appellant   Mr C Young, as agent and with him Mr K Aitken

Respondent   Mr E Rea, as agent

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1         These are the unanimous reasons for decision of the Full Bench.

2         This is an appeal brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”) by the abovenamed appellant employee against the abovenamed respondent employer company.

3         The appeal is an appeal against the whole of the decision of the Commission, constituted by a single Commissioner, given on 12 November 2001 in application No 339 of 2001.

GROUNDS OF APPEAL

4         Upon the hearing of the appeal, the grounds of appeal were amended, and we reproduce hereunder the amended grounds of appeal:-

“1. The Commissioner erred in law in finding that there was a valid reason to terminate Aaron Tasker (“the Appellant”):

Particulars

(a) On 24th January 2001 the Appellant worked on Ken Parker’s XE Falcon.

(b) On 29th January 2001 the Appellant again worked on Ken Parker’s XE Falcon.

(c) On 7th February 2001 Sino Galati issued the Appellant with a written warning that did not include brake inspection.

(d) On Monday 12th February 2001 Ken Parker’s vehicle was returned due to problems with the brakes.

(e) On l2th February 2001 Sino Galati terminated the Appellant on the following grounds:

(i) Incorrect use of hoist.

(ii) Return of Ken Parker’s vehicle due to problems with brakes.

 2. The Commissioner erred in law and in fact in finding that:

(a) The wheels on Mr. Parker’s vehicle ought to have been removed for the purpose of the brake inspection.

(b) The Appellant had not- been properly trained on brake inspection.

 3. The Commissioner erred in law and in fact by not finding that:

(a) The issue of brake inspection was not raised in the warning letter of 7th February 2001.

(b) The Appellant was provided with inconsistent written and verbal instructions regarding brake inspection.

 4. The Commissioner erred in law by finding that a pre-existing issue with the brakes on Ken Parker’s vehicle was capable of improvement after the issuing of the warning letter when the Appellant did not work on the vehicle after 7th February 2001.

 5. The Commissioner erred in law by finding that the grounds for dismissal contained in the Notice of Dismissal (12th February 2001) were valid reasons, when:

(a) The Commissioner found that the Respondent could not rely on the operation of the hoist as a valid reason.

(b) The Appellant repeats paragraphs 1-4 above.

 6. The Commissioner erred in law by not finding that the Appellant was given “a fair go all round”, and that the Appellant had not been unfairly dismissed.

 7. The Commissioner erred in law by finding that The Appellant had failed to mitigate his loss.

 8. The Appellant seeks Orders that the Full Bench:

(a) Quash the Order of Commissioner Scott dismissing Application No. 339 of 2001.

(b) Find that the Appellant was unfairly dismissed.

(c) Order the Respondent pay the Appellant compensation.”

5         The appeal is against a decision expressed in the form of an order whereby the Commissioner at first instance dismissed an application brought by the abovenamed appellant pursuant to s.29(1)(b)(i) of the Act.

BACKGROUND

6         The abovenamed appellant, Aaron Dale Tasker (wrongly called Aaron Tasker in the heading to the notice of appeal) brought an application to this Commission, pursuant to s.29(1)(b)(i) of the Act, alleging that he was harshly, oppressively and unfairly dismissed from his employment by the respondent.

7         The respondent, at all material times, conducted an automotive electrical and mechanical repair business under the name of “Rockingham Auto Electrical and Mechanical Services” at 115 Dixon Road, Rockingham, in the State of Western Australia.

8         The appellant entered the employment of the respondent on 28 August 2000 and remained in that employ until he was dismissed on 12 February 2001.  It was not in dispute that he became a qualified automotive electrician, in New Zealand, and is apparently a qualified automotive electrician for the purposes of pursuing that trade in Australia.  He arrived in Australia from New Zealand shortly prior to his commencing employment with the respondent.  In New Zealand, he had worked as an automotive electrician for some 14 years during some of which time he ran his own automotive electrical business.  He was not, of course, a qualified motor mechanic, at least in Western Australia.  Evidence was given about these matters by the appellant, on his own behalf, at first instance, and on behalf of the respondent by Mr Sino Galati, described by the Commissioner at first instance as proprietor of Rockingham Auto Electrics, but presumably a director of the respondent company which conducted and conducts that business, and Mr David Jonathon Galati, the son of Mr Sino Galati, the service manager of the respondent and a qualified auto electrician.  Mr Daniel Matthew Vadala, an employee of the respondent, as well as Mr Kevin Rockwell Rawlinson, a service manager employed by another motor vehicle service firm, but, the service manager of the respondent at material times, also gave evidence.

9         The respondent’s business, at the material times, was an automotive electrical and mechanical repair business.  It was founded about 20 years ago by Mr Sino Galati, and was described by him as doing 50% electrical work and 50% mechanical work.

10      At the material times, the respondent employed two qualified automotive electricians and four motor mechanics, as well as apprentices.  In addition, there was a workshop controller, a foreman and the service manager.

11      The appellant said in evidence that he met Mr Sino Galati when he sought employment by the respondent and advised him of his qualifications and what he had done in the past.  In fact, he had worked for 14 years approximately in New Zealand as an auto electrician, and during some of that time, according to this evidence, he conducted his own automotive electrical business.

12      He was asked by Mr Sino Galati if he objected to doing mechanical work, and he said that he had not done it before, but, on his own evidence, he said that he had no objection.  Mr Tasker said that he was told that the work was half mechanical and half electrical.

13      The respondent, of course, knew that Mr Tasker was not qualified as a motor mechanic, but as an auto electrician.  According to Mr Tasker, Mr Sino Galati asked him if he would object to doing mechanical work, and he said “No”, but added that “I have never done any but I would be quite happy to do some”.  He said that Mr Sino Galati then said that it was mostly just oil changes and he thought that it would not be too hard to change oil.  He had done some in the past.

14      Mr Sino Galati, on the other hand, said that, in the discussions before Mr Tasker was engaged as an employee, Mr Tasker was told that he would be required to do mainly auto electrical work, but that when there was not enough, or if there was too much mechanical work, he would also be doing full services and tunes, together with minor mechanical repairs; and slowly as he gained experience he would be expected to do more.  Mr Sino Galati said that Mr Tasker did his best to convince him that he was quite happy to do that.  He said that Mr Tasker came across as very keen.  He also said, referring to notes, which he made at the time, that Mr Tasker said that he had done mechanical work on his own vehicles and on his friends’ vehicles and he had done a little bit on shock absorbers.

15      It is quite clear, on Mr Tasker’s own evidence, and the evidence of both Mr Sino and Mr David Galati and Mr Kevin Rawlinson, that he did do some mechanical work.  It is also clear that this mechanical work included inspecting and repairing brakes.  He did not receive any formal training in mechanical work, and he himself said that he had to constantly ask mechanics and persons around what he should do.  It is quite clear that checking brake pads was part of any service and tuning job (see Mr Tasker’s evidence at pages 24-25 of the appeal book (hereinafter referred to as “AB”)).  Mr Sino Galati said in evidence that training was provided by the workshop controller, the foreman and the four mechanics.  Mr Tasker said that he had difficulty with mechanical work (see pages 7-8 (AB)).  It was the evidence of Mr Sino Galati that when Mr Tasker started he was given, as were all of the technicians, a book setting out the procedures relating to work.

16      It was the evidence of all of the witnesses for the respondent that for the first two and a half months Mr Tasker performed his auto electrician’s duties, as well as mechanical duties, including brake checking.  It was also their evidence that he performed all of his duties, including mechanical work, satisfactorily for the first two and a half months.  Mr Sino Galati that “the nature of the work expected of Mr Tasker was basically auto electrical work”.

17      There was also evidence from both the Messrs Galati, as well as Mr Vadala and Mr Rawlinson, that he became difficult to instruct, that he would not follow instructions, that he was untidy and left messes which he did not clean up often enough when required to do so, that some of his work was defective, and, that in particular, there were complaints about brake checks which he had done.  Mr David Galati raised the difficulty which he had with Mr Tasker taking or following instructions, with his father (see pages 65-66 (TFI)).  These allegations were denied by Mr Tasker.  Amongst other things, he would not, the complaint was, admit that he was making mistakes.  Part of the allegations against him were that the defective inspection of brakes on vehicles brought frequent complaints towards the end of his employment by the respondent.

18      Mr Sino Galati and Mr David Galati also gave evidence that they had raised issues of concern with him about his performance and attitude and he had not responded.  Some of the matters alleged to be problematical were mentioned in a memorandum to him of 7 February 2001 which was given to him after he had been employed by the respondent for about five months.  This was a warning memorandum, which, according to the witnesses for the respondent, was given to him because of his unsatisfactory performance and behaviour after the first two and a half months.  That memorandum (exhibit 12) we reproduce hereunder from pages 9-10 (AB):-

“Memo : 7th February 2001

To  : Aaron Tasker

From : Sino Galati

Subject : Unsatisfactory Performance

LISTED BELOW ARE EXAMPLES OF UNSATISFACTORY PERFORMANCE.

1. Yesterday (6th February 2001) whilst working on vehicle Subaru 6MI113.  You were given instructions on the procedure of soldering diodes to the rectifier.  You were told that the chromium plating on the base of these diodes was to be ground off until the copper was exposed before soldering these diodes to the heat sink.  You were also told that unless this was done the solder would not stick to the diodes and that the diodes would come away from the heat sink.

After you completed that job the vehicle was test driven by the Forman and whilst on that test drive the alternator failed due to one of the diodes coming away from the heat sink.  When you then removed and dismantled the alternator it was found that you did not follow the instructions given to remove the chromium off the diodes before soldering.

You have deliberately ignored a direct instruction the result of which was to cause the alternator to fail.  This required extra time to be spent to rectify the problem, costing the company time and money.

2. Recently whilst you were repairing a glow plug system on a Landcruiser you were asked if you had soldered the eye terminal on a bolt on connection.  You said that you had.  It was found that you in fact had not and were made to solder that terminal the next day.

3. Recently on Peter Donaldson’s Landcruiser you were asked to check the electrical system because the battery was going flat a short while after the alternator was replaced on his vehicle.  You checked the vehicle on the 10th of January, the 12th of January and finally on the 23rd of January.  These last 2 occasions were on call outs a total of 3hours 20 minutes spent on what should have been diagnosed as the battery on the first occasion.  It was found after the event that you had not load tested the battery until after the 3rd occasion.  A first year apprentice should know better.

4. On the 24th of January you Serviced Ken Parker’s XE Falcon.  You did not check vehicle history on the computer as required to on any vehicle that has been in before.  One year ago we had replaced the Alternator on that vehicle.  As part of the items you picked as being faulty with that vehicle was the alternator.

When the vehicle returned to have the alternator repaired under warranty on the 29th of January, I checked the vehicle with you and found that the alternator was perfectly OK and that the battery was in poor condition.  Again it appears that you hadn’t checked the battery.

These are just a few examples of your work lately and highlight your general work ethic and attitude.

Your attitude, the ignoring of instructions, giving misleading information when asked about a job, the slack attitude in not performing basic checks and not following procedures, will not be tolerated.  We require an immediate turnaround on the above if you are to keep your position with this company.

Signed

Sino Galati”

19       There were complaints that Mr Tasker had not soldered a connection on a terminal on a Toyota Land Rover, which complaint he denied (see pages 16 (TFI)).  There was also a complaint that he fitted a diode on a Safari vehicle and that it broke loose.  His evidence was that he was not sure how it broke loose but that he resoldered it.  He was also alleged to have failed to fit an immobiliser on a vehicle correctly, and he denied that he was at fault.

20      Mr Sino Galati gave the memorandum to Mr Tasker on 7 February 2001 and a discussion between them took place for about 10 to 15 minutes.  It was agreed that Mr Tasker denied each of the allegations raised in that memorandum.  Mr Tasker also said in evidence that it was difficult to have a discussion about these matters with Mr Galati because Mr Galati was shouting at him and abusing him.

21      Mr Tasker then went away and obtained advice which he followed to respond to the memorandum of allegations about his conduct in writing.  He did so.  He then handed to Mr Galati his own written memorandum in reply explaining and denying the allegations (exhibit 13) on Saturday, 10 February 2001.  We reproduce the same hereunder from pages 11-12 (AB):-

“To Sino Galati – In regards (sic) to unsatisfactory performance memo.

Regarding (sic) the Subaru 6MI113 on the 6th feb (sic) 01 I asked Dave Galati if you had the diodes in stock to repair Hitachi Rectifiers – he said yes – found them and commented “I normally grind the base out” as he walked off. Having performed this procedure in excess of a 100 times, this comment made no sense (sic).  After the alternator failed I replaced 1 diode and reassembled (sic) it, by this time the customer was waiting for the vehicle (sic).  David Galati walked over, asked what had happened, when I told him he said they had hade (sic) this problem a lot, and that himself Dave L & Pete had decided to grind the diode to expose the copper to stop them falling off as the solder we use is not suitable for the job.  Ingram corp. the manufactures (sic) of this product have at no time said that it needs to be altered to be fitted.

I at not time chose to ignore instructions as no instructions were given.

In regards (sic) to the Landcrusier(sic) glow plug system I reported a broken earth wire in a plug.  I received (sic) instructions to repair it and did so by soldering the connection.  Later Dave Galati asked what I hade (sic) done, I said “I had repaired the connection, he asked me if I hade (sic) soldered it, I said yes.  I believe that Dave Galati had thought I replaced a yellow crimp on terminal were (sic) in fact that terminal was no were (sic) near were (sic) I was working.  Later on when he pointed to the area he was on the right side and my vision of where he was pointing was obstructed by engine air flow pipes as I was standing at the front of the vehicle (sic).  The next morning when he mentioned the terminal we both realised the mistake in communication and he asked me if I would solder the terminal anyway.

In regards (sic) to Peter Donaldsons (sic) Landcrusier (sic) he asked if we could make the electronic windows work with the key off.  I did so as I have done before by bridging the power window relay – here I made a mistake, a foreign drain also ran of (sic) this relay.  When we picked the vehicle (sic) up after this.  I checked the draw and found 120 milliamps, 70 of which was from bridging this relay. we rectified this – you yourself said the other 50 milliamps would be ok, and the customer did not want to go any further – I did not check the battery as it was flat and we all know you can not check a flat battery.  Later that day the customer asked if he could have a loan battery while we charged his.  This job was done by Dave L the apprentice.  He refilled the battery at a later stage.  When I went out to his vehicle (sic)  Again I found his battery to be faulty.  At know (sic) point was I in a position to test this battery until then.

In regards (sic) to Ken Parkers XE falcon.  I did check the history and found that the alternator was replaced on 18-01-00, invoice 54696, 293340 ks as we were in the 24 -01-01 I believed (sic) the job was out of warranty as our units have 12 months.  I usually go through records to about 12 months although no guide lines are set.  When I tested his vehicle (sic) the battery was flat so could not be tested at that time.  I fitted a brand new battery (as I always do) to the vehicle (sic) and checked the charge rate.  I found volt drop in the charge line and when rectified I found the alternator was charging at 13.19 volts – this is too low.  I reported this but did not realise I had to tell them it was just out of warranty (sic).  When we checked it the next day the voltage came up to 13.8 volts and having (sic) charged the battery, found it to be faulty.  I stick with my first assessment, this alternator has a problem which would require further (sic) checking as I reported.

Sino – for the past 2 months since your confusion between myself and Aaron Armstrong I have felt a lot of animosity.  I do my job well, I am always on time and do not pull sickies.  I have performed all jobs and overtime when asked.  At no time have I ignored instructions and as for giving misleading information about jobs, please give some examples so that I may respond (sic).  As for my work attitude, I have a good work attitude.  The job cards we receive (sic) are constantly being taken away and contain poorly written instructions, incorrect rego no and incorrect vehicle (sic) names ie letter R in place for Renault (sic) and only three of the seven rego no on the same card, the work shop computers would have spent nearly 50% of the last 2 months not working, yet I keep a positive attitude and enjoy my work.

I do take offence to being blamed unfairly for these faults.  I have found your attitude and offensive language in more than 1 meeting unprofessional (sic).  You showed no interest in giving me a chance to explain my side of any example, but told me that I only made excuses for everything.  I feel that your hidden agenda (sic) for all this is one of constructive dismissal.

Yours sincerely (sic)

Aaron Tasker

Signed”

22      It is to be noted that the last paragraph of the memorandum from Mr Galati of 7 February 2001 (exhibit 12) complains about the ignoring of instructions, giving misleading information when asked about a job, the slack attitude in not performing basic checks, and not following procedures, and advises that this would not be tolerated and that an immediate turnaround would be required otherwise he would be dismissed.  That was a clear and explicit warning to him.  As Mr Tasker admitted, he was given an opportunity to respond to the memorandum of 7 February 2001.

23      Having handed his letter in response to Mr Sino Galati on Saturday, 10 February 2001, Mr Tasker left the premises.  Mr Sino Galati sat down and read the letter after Mr Tasker left.

24      On that Saturday, according to Mr Sino Galati’s evidence, the appellant had used one of the hoists on the premises, contrary to instructions which the respondent says were given in writing in a memorandum issued some time prior to that to all of the staff including Mr Tasker.

25      In addition, Mr Galati, on his evidence, considered the memorandum from Mr Tasker (exhibit 13) and the contents of it over the weekend.

26      On Monday, 12 February 2001, a significant incident occurred.  Mr Ken Parker, a regular customer of the respondent, the owner of an XE Falcon, and the work of Mr Tasker on which was the subject of a complaint in Mr Galati’s memorandum of 7 February 2001, brought his vehicle back in again, it having been serviced, on 29 January 2001, due to problems with the brakes.  (Mr Parker complained about this).  In fact, the brakes had been worn away so that all that was left instead of the pads were steel studs, and the brakes were virtually inoperative.  It was not denied at all that the two most dangerous sorts of defects in a motor vehicle were in the steering and in the brakes, and the consequences of such defects could, of course, be fatal.

27      Mr Sino Galati reached the conclusion, because of the failure of Mr Tasker to follow instructions in relation to the hoist, notwithstanding the memorandum which had been issued to him about his failing to recognise and accept responsibility for problems in his performance, and having received the further complaint on Monday from Mr Ken Parker, that there was no purpose in further counselling or any other form of discipline.  He decided to terminate Mr Tasker’s employment.  It is clear that the allegedly defective work done on Mr Parker’s vehicle by which defects in the brake pads had not been identified, had happened before the memorandum of 7 February 2001 from Mr Sino Galati to Mr Tasker, and the fact of it occurring was unknown to Mr Sino Galati until Monday, 12 February 2001.  He then issued a notice of dismissal on that day, Monday, 12 February 2001, to Mr Tasker, the letter (exhibit 14) being, formal parts omitted, in the following terms:-

“Notice of Dismissal : 12th February 2001

To : Aaron Tasker

Further to the letter of warning issued to you on the 7th of February.

On Saturday 10th of February you were found to be using the hoist incorrectly (raising the hoist with the safety catch on) this causes the safety mechanism to click on each catch causing excessive wear of the safety mechanism.  This shows a lack of respect for our expensive equipment.

Today Mr Ken Parker’s vehicle was returned to us.  As you may recall this was the vehicle that you serviced and misdiagnosed the alternator as being faulty on the 24th January.  The vehicle was returned today, as you know because the drivers (sic) side front brake pads were worn down to bare metal.  This should have been picked up by you and reported on the service carried out on the 24th January.  We are now having to do this job free of labour costing the company time and money.  More importantly this has tarnished our reputation with the customer as it is the second problem from that service and has probably cost us this customer.

The intent of the written warning on the 7th of February was to bring home to you the problems you are causing with a view to helping you rectify these.

Your reply in writing denying the mistakes you have made and the misleading responses you have given when questioned on these, makes clear to us that you are not willing to learn by your mistakes or to try and rectify your behaviour but rather are looking for excuses.  Of course if we can’t get the (sic) past the first step of getting you to realise that there is a problem, we are wasting our efforts.

On that basis the decision has been made to terminate your employment with this company.

Signed

Sino Galati”

28      Mr Sino Galati said that it had not been his intention to dismiss Mr Tasker on Monday, 12 February 2001, but to further discuss the matters raised by him with him.

29      It will be noted that the letter states that the basis of the termination of the employment was his denial of the mistakes and the misleading responses given, making it clear that he was not willing to learn by his mistakes or to rectify his behaviour.  Mr Tasker does not seem to have responded to the allegations made against him before he was dismissed, although he was asked what had happened with Mr Parker’s vehicle by Mr Rawlinson on Mr Sino Galati’s instructions and responded, according to Mr Rawlinson, that that must have been the vehicle that he did not take the wheels off.  Mr Tasker’s complaint was that he was “fired” because he responded as he did to a letter of warning.

30      However, the letter does specifically identify the problems involving the hoist and the failure to discover the worn brake pads on Mr Ken Parker’s vehicle, a vehicle on which it was also alleged that Mr Tasker had recently “misdiagnosed” an alternator as being faulty.

31      Mr Sino Galati said in evidence that the deciding factor in determining to dismiss Mr Tasker was when Mr Parker’s car came back in with the brakes down to bare metal because Mr Tasker had not checked them, and, further, when the service manager, Mr Rawlinson, came back having spoken to Mr Tasker and said “he didn’t take the wheels off”.

32      Mr Sino Galati spoke to him on Monday, 12 February 2001, and handed him the letter, terminated his employment and a few days later paid him a week’s pay in lieu of notice and all entitlements.

33      We turn to the question of the alleged failure to operate the hoist pursuant to Mr Sino Galati’s directions.  The evidence is quite clear that Mr Tasker did not operate the hoist in accordance with his directions, but that he operated it in accordance with the manufacturer’s instructions which were written on it.  In relation to the hoist, Mr Galati admitted in evidence that he was wrong to instruct his employees, as he had, to use the hoist contrary to the manufacturer’s instructions and that this was the view of the Occupation and Health Authority.  Further, he admitted that Mr Tasker, in operating the hoist in accordance with the manufacturer’s instructions, had acted correctly.

34      There was a great deal of evidence about what the requirements were for inspecting brake pads.  It was Mr Tasker’s evidence that he was told that one did not take off the wheels of a vehicle to inspect the brake pads unless it was absolutely necessary, and he was shown how to do the visual inspections by the foreman, Mr Darren Atkinson, and was instructed to do such inspections, by the use of a small torch and without taking the wheels off.  One could then, according to him, see whether the brake pads were worn down.  “You check each rim and see how much brake pad is there”, he said (see page 25 (AB)).  Mr Tasker said that he inspected Mr Parker’s vehicle’s brakes as he had been told to do such jobs.  He also said that there appeared to be a reasonable amount of pad where he looked (our emphasis).  He also said that employees would look at the pad, but only one spot on each pad.  He alleged in cross-examination that he was given instructions to take short cuts and cheat the customers, something that was denied by Mr Sino Galati.  Mr Rawlinson specifically corroborated Mr Galati’s evidence that he did not follow instructions when Mr David Galati gave them to him, that Mr Tasker did not display initiative in finding other jobs, having completed one job, and that he was never given instructions to take shortcuts on jobs.  Mr Rawlinson also gave evidence that he complained to Mr Sino Galati about Mr Tasker’s performance and about the messes Mr Tasker left at his work.  He also confirmed Mr Parker’s complaint and affirmed that the brakes were checked and required to be checked by taking the wheels off.  They were then checked through the calipers.  He also corroborated evidence that there were complaints about brake checks by Mr Tasker at the rate of about two a week towards the end of his employment by the respondent.  Mr Rawlinson also said that mag wheels are not removed to check the brakes, and these are the only ones which can be checked by a torch.  He was not at all shaken in his evidence on cross-examination.  Mr David Galati also affirmed that one takes the wheels off a car on the full service and tune with the car on the hoist in order to check the brake pads.  He said that one must be able to see the brake pads because the brake pads are obviously important.  The car, he said, is unsafe if there are no brakes, which was something of an obvious statement.  To make sure that the brakes are safe, one has to see the brake pads and see what thickness is left.  On a car with mag wheels one can see this with a torch.  Again Mr David Galati, on a fair reading, was not shaken in cross-examination.  Mr Sino Galati also said that Mr Tasker was a qualified tradesman who had been working with cars all of his life and “had had wheels off before”.  Certainly, Mr Tasker did not make it clear in evidence that he had not taken wheels off before.  He said specifically that Mr Tasker was not unqualified to fix brakes.

35      However, it was the evidence of Mr Sino Galati that all employees were instructed that the wheels had to be taken off in 99% of cases.  There were written instructions dated 25 September 2000 about taking wheels off to check brakes.  Mr Tasker said that he always had to ask a mechanic because he was not at all good with brakes.  That was contrary to what Mr Sino Galati said.  He was, however, according to his evidence, had been doing this check on many vehicles.  He said that if one could not see anything at all then one pulled the wheels off.  It is clear from the evidence of Mr Rawlinson and the Messrs Galati that only in relation to about 1% of vehicles, these being vehicles with large mag wheels, and by implication Mr Parker’s car was not a vehicle with large mag wheels, was one able to determine by the use of a torch whether the brake pads had been worn.

36      It was also clearly the evidence of Mr Tasker that he was unable to detect how much the pads had been worn, and, in our opinion, commonsense would dictate in relation to Mr Parker’s vehicle that he should therefore have taken off the wheels.  He said that he had used the torch because that was what he had been instructed to do, but it was denied by all of the witnesses for the respondent that that was the course which employees should or were required to take.  Mr Tasker said that he had difficulty judging the area of the brake pads when he “poked the light in”.

37      The evidence of the Messrs Galati, Mr Rawlinson and Mr Vadala, a qualified mechanic employed by the respondent, all supported the allegations made in the memorandum of 7 February 2001 and the memorandum of 12 February 2001 from the respondent to the appellant.  After the initial couple of months, they were all critical of his attitude, his tidiness and made allegations as to his competence in performance and that his behaviour was unsatisfactory.  Mr Tasker admitted that on one occasion he was untidy because he had to rush a job, but he was told to clean up the next morning and did so.

38      There was also evidence from Mr Tasker that he was unable to find employment for 11 weeks after he was dismissed.  In cross-examination, he said that he had had a motor vehicle accident one week, after the dismissal in which he broke his collarbone.  This rendered him unfit for work because he could not lift anything really heavy for three weeks.  He did say, too, that he was checking the paper every Wednesday and Saturday for employment.  He said that he also applied for only one job which he rang up about and he had an interview.  A number of advertisements alleged to have been placed in “The West Australian” over a period of time for employees in his line of employment was put to him in cross-examination, but the advertisements were not proven as a fact in evidence on behalf of the respondent, and were not tendered or produced to the Commission.  He had spoken to his insurer about claiming loss of earnings in respect of his injury.  His insurer had recovered all of his medical expenses.  He said in re-examination that he had chased a few jobs and went to one interview, but it was too far away, especially for the money being offered.  He said that he rang some others but they wanted fuel injection or air-conditioning experience which did not have.

FINDINGS

39      The Commissioner at first instance made the following findings:-

(a)          That she gave the evidence of Mr Vadala, which was evidence of his observations of Mr Tasker and his work performance, no weight.

(b)          That Mr Tasker’s evidence in respect of his efforts to mitigate his loss was far from satisfactory, and, in all of the circumstances, she was not satisfied that this constituted a reasonable effort on the part of the appellant to mitigate his loss and his lack of candour in that respect did not enhance his credibility.

(c) That four weeks after the accident, being five weeks after the termination of his employment, Mr Tasker was fit only for light duties.

(d) That he was unable to tell the Commissioner at first instance when it was that he was fit to take on the full range of duties of his calling other than to say that it was shortly after that.

(e) That, in any event, it appears that the best that he was able to manage was that he applied for a couple of jobs at what might be some six weeks of unemployment.

(f)           That in all of the circumstances, the Commissioner was not satisfied that this constituted a reasonable effort on the part of Mr Tasker to mitigate his loss and his lack of candour did not enhance his credibility.

(g)          That because of the dispute between the parties about the operation of the hoist it might be that the respondent was not entitled to rely on this as part of its reasoning for the termination.

(h)          That the appellant had failed to demonstrate, on the balance of probabilities, that his evidence was to be preferred to the evidence for the respondent when it came to the appellant’s performance.  In this context, the Commissioner found that Mr Sino Galati and Mr David Galati were credible in most of the issues associated with the appellant’s performance, but it was difficult to determine which of the witnesses’ evidence ought to be preferred one to the other where the evidence of the appellant’s performance involved only one person.

(i)            That it was not established to the necessary standards that he had not received a fair go.

(j)            That it was not demonstrated that what had been alleged against him in terms of his performance and approach to his work was not correct.

(k)          That his and the respondent’s evidence had been of equal rate in that regard.

(l)            That the Commissioner was unable to find that he had not been given natural justice.  Issues of concern were raised with him and he was given an opportunity to respond.  He did respond, and the respondent took account of his response but was unconvinced by it.

(m)        That another two instances arose, one with the hoist, and one with Mr Parker’s vehicle.

(n)          The Commissioner found that because of the dispute between the parties about the operation of the hoist it may be that the respondent was not entitled to rely on this as part of its reasoning for termination.

(o) That it was the allegation for the respondent that the failure to properly check the brake pads on Mr Parker’s vehicle warranted termination of employment. 

(p) That he was given an opportunity to know and respond to issues knowing that his employment was in jeopardy and to demonstrate improvement and soon after the warning a further issue arose concerning Mr Parker’s brakes.

(q) That she was not satisfied that the appellant had demonstrated to the necessary standard that he was the one who was correct and that the respondent was incorrect in relevant matters relating to the termination by proving his case in the balance of probabilities.

(r) Thus, the claim of harsh, oppressive or unfair dismissal was dismissed.

(s) That there was no genuine endeavour to mitigate loss and the amount of compensation which ought to be awarded were Mr Tasker successful would be unlikely to exceed about one week’s pay.

ISSUES AND CONCLUSIONS

40      This was an appeal against a discretionary decision as that term is defined in Norbis v Norbis (1986) 161 CLR 513 and Coal and Allied Operations Pty Ltd v AIRC (2000) 74 ALJR 1348 (HC).  The onus lies upon the appellant to establish that the exercise of the discretion at first instance miscarried according to the well known principles in House v The King [1936] 55 CLR 499.  If it does not do so then there is no warrant for the Full Bench to interfere with the exercise of the discretion at first instance.

41      Further, a finding of fact by a trial judge based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities are against, even strongly against, that finding.  If the finding depends to any substantial degree on the credibility of the witnesses, the finding must stand unless it can be shown that the judge has failed to use or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable (see Devries and Another and Australian National Railways Commission and Another [1992-1993] 177 CLR 472 and see State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 (HC)).

42      Findings were made in this case which were clearly made based on the credibility of witnesses.  It is therefore for the appellant, if he wishes to establish those findings, to establish that the findings were made in error, according to that principle.

43      We now turn to the grounds of appeal. 

Grounds of Appeal

44      It is necessary to put the grounds of appeal into perspective by repeating that they should be seen against findings as to credibility as made by the Commissioner at first instance based on the advantage enjoyed by her in seeing and hearing the witnesses.  The Commissioner found that the Messrs Galati were credible in most issues associated with the evidence given.  She made no expressed comment about the evidence of Mr Rawlinson or his credibility and his evidence on a fair reading of the transcript was generally unshaken.  She was not satisfied that the appellant had demonstrated to the necessary standards that he was correct and the respondent was incorrect, in relation to relevant matter affecting the termination “by proving his case on the balance of probability”.

45      As we interpret that finding, it means this.  The Commissioner at first instance did not accept that the complaints of bad performance and unsatisfactory attitude and incompetence made against Mr Tasker were proven to be incorrect.  It was on these and the problems with Mr Parker’s brakes, (and allegation that he had used hoist contrary to instructions), that the dismissal was sought to be justified.

46      It follows that she would not accept Mr Tasker’s version of what occurred in relation to Mr Parker’s vehicle.  It follows, implicitly, that she did not accept his version of the events supporting the memorandum of warning, and of the matters of complaint, referred to in evidence by the witnesses for the respondent.

47       Nothing was submitted to persuade us, on a fair reading of the transcript, and examination of other evidence that the Commissioner should have accepted Mr Tasker’s evidence and that she was in error in not doing so.

48      By ground 1 it is alleged that the Commissioner at first instance erred in law in finding that there was valid reason to terminate Mr Tasker.  That is not, of course, what the Commissioner found.  The Commissioner found that Mr Tasker had not established that the dismissal was unfair.  That is what the Commissioner was required to do according to the Act and the definition of what is harsh, oppressive or unfair, as expressed in the Act, and authoritively defined in Miles and Others t/a Undercliffe Nursing Home v FMWU 65 WAIG 385 (IAC).  The Commissioner found, and found correctly, having regard to the credibility of the witnesses, that Mr Tasker took the easier way out in checking the brake pads of Mr Parker’s vehicle by looking at the brake pads with a torch rather than taking the wheels off, as he was instructed to do.

49      The relevant events in relation to the dismissal were as follows:-

(a) In a letter dated 7 February 2001, Mr Sino Galati, warned Mr Tasker that he would be dismissed if he did not change his attitude and improve his work and his attention to it.

(b) He made a number of specific complaints in the memorandum, which complaints were denied by Mr Tasker, but which were corroborated by Mr David Galati and Mr Rawlinson.  They were also corroborated by Mr Vadala, to some extent, but his evidence was not accepted.

(c) None of them related to unsatisfactory conduct of brake pad examination, but it was perfectly clear that the letter of warning referred only to some specific examples of the complaints which the respondent made against the appellant.  This is specifically said in the memorandum of warning of 7 February 2001, and, further, is confirmed by the specific words:-

“These are just a few examples of your work lately and highlight your general work ethic and attitude”.

50       In other words, it is quite clear that the memorandum did not set out to mention all matters of complaint.  Other matters of complaint were mentioned in the oral evidence given, and the Commissioner at first instance did not find that those allegations were not credible.

51       No significance could properly be attached to the omission of every item of complaint from that letter, having regard to the fact that it was restricted to a few examples.

52       It is fair, to observe, that the evidence of the Messrs Galati was corroborated in a number of material particulars by Mr Rawlinson whose evidence was very little shaken, although it was not expressly referred to by the Commission.

53       Mr Tasker, it should be observed again, denied the allegations contained in the memorandum of warning in his own memorandum in response as well as denying the allegations made in evidence and in the memorandum in his own evidence.  However, the Commissioner at first instance did not find that his evidence established what he sought to establish.

54       There are, however, a number of relevant matters.  First, on 24 January 2001 and on 29 January 2001 the appellant had worked on Mr Ken Parker’s XE Falcon.  Mr Parker was a customer.

55       The evidence of the witnesses of the respondent was that Mr Tasker’s work for the first two and a half months, including brake inspections, was competent.  Mr Tasker did not deny this, and it was open to so find.

56       Further, the evidence of the witnesses for the respondent, which was accepted, and that of Mr Sino Galati, Mr David Galati and Mr Rawlinson, was that he had been properly trained in matters including brake inspections, that there were no oral instructions nor was there a practice which permitted the brake pad inspections to be carried out without taking the wheels off vehicles, except in a very small minority of cases, namely about 1% involving cars with mag wheels.

57       This practice was what was prescribed in written instructions made available to staff.

58       The appellant, it was clear, had failed to act according to instructions, had failed to act according to his training, and failed to take off the wheel of Mr Parker’s car, when on his own admission, he could not properly see the brake pads.

59       His inspection was entirely inadequate and as a result, Mr Parker’s car was brought in shortly after the work was done, with the brake pads worn down to the steel studs, and were almost inoperable.

60       Mr Tasker was clearly negligent in failing to ascertain, by carrying out his instructions in the proper manner, that the brake pad was so badly worn, and it was open to so find.  That is the case, because his own evidence was that he could not see the brake pad and did not take the wheel off.  The fact was that his inspection, on his own evidence, failed to detect that brake pads on a vehicle were worn down to the extent of being almost non-existent.

61       He did not allege that the vehicle was one with mag wheels and did not assert that fact.  A vehicle with mag wheels, can, on the evidence, be inspected for brake pad wear without taking the wheels off.  All of the evidence was that this vehicle required the wheels to be taken off.  It was open to so find.

62       We now turn to the grounds expressed for the dismissal in the letter of 12 February 2001.  They were that:-

(a) Mr Tasker had operated after the warning letter, the hoist, contrary to instructions given to him, by Mr Sino Galati

(b) That he had failed to properly check the brakes on Mr Parker’s car.

63       It is quite clear that it was not accepted that he was dismissed because he had responded to the memorandum of warning of 7 February 2001.  He could not therefore challenge the findings which were open to be made that he had been dismissed because of the failure to comply with the hoist instructions given to him by Mr Sino Galati and because he failed to properly check the brakes on Mr Parker’s car.

64       It was submitted, for the appellant, that because the latter allegation related to an event which occurred before the warning letter was issued on 7 February 2001, that it was not a matter in relation he could improve his performance as the letter required.

65       Therefore, as we understood it, the submission implied it could not fairly be used as a basis of dismissal.  As a basis for dismissal as a matter of law, the conduct was neither waived nor condoned, because until Monday, 12 February 2001, the appellant had no knowledge of it and acted to dismiss as soon as it became aware of this knowledge through Mr Sino Galati (see the general discussion of condonation and waiver in Macken, McCarry and Sappideen, “The Law of Employment”, 4th Edition at pages 213-214).

66       It is the law, to, that an employer can justify a dismissal by reference to facts not known at the time of his dismissal but discovered subsequently, so long as these as facts concern circumstances in existence when the decision is made.  Whether the decision can be so justified will depend on all of the circumstances (see RRIA v CMETSWU (1995) 75 WAIG 813 and see Byrne and Frew v Australian Airlines Ltd [1995] 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ, and at page 467 per McHugh and Gummow JJ).

67       In this case, when the respondent gave a warning to Mr Tasker, on 7 February 2001, through Mr Galati, Mr Galati had no knowledge of the problem with Mr Parker’s vehicle.  He gained that knowledge only on Monday, 12 February 2001.  It is, with respect, wrong to submit that this could not constitute a ground for dismissal because it had already occurred and could not be remedied by any improvement in Mr Tasker’s performance.

68       The fact of the matter was that it was an event unknown to the respondent which was added to the other elements of complaint in the respondent’s memorandum of warning and formed a ground of dismissal because it had become known.  It could properly be so accounted.

69       In any event, not every instance of unsatisfactory performance was listed in the memorandum of warning as we have said above.  The fact that an instance was not referred to in the memorandum of warning is no bar to action being taken fairly or legitimately by the respondent.

70       It is quite obvious, and the Commissioner at first instance found correctly, that Mr Tasker did not operate the hoist incorrectly and it was correct and safe for him in accordance with the manufacturer’s instructions and not Mr Sino Galati’s.   That was open to be found specifically on Mr Sino Galati’s own admission in evidence.  Therefore, as the Commissioner properly found, the respondent could not rely on that act to justify dismissal.  However, it was not contended that the dismissal was summary, and it was not so intended, on Mr Sino Galati’s evidence.

71       Accordingly, given the findings of fact, made on the basis of credibility and applying the principle expressed in Devries and Another and Australian National Railways Commission and Another (op cit), the Commissioner found correctly and did not misuse the advantage which she had from observing the witnesses in the box.

72       The overall onus was therefore on the appellant to establish those facts on the balance of probabilities which would lead to the conclusion on the balance of probabilities that the dismissal was unfair.

73       In our opinion, as the Commissioner found, it was not established that the allegations against him were not true.  He therefore did not establish that he was not lacking in the correct attitude and not competent in his performance, as alleged in the evidence of the witnesses for the respondent and also alleged in the memorandum of 7 February 2001, notwithstanding his denial.

74       The aggregation of those allegations, in evidence, and in the memorandum and his own admitted failure to properly check the brake pad on Mr Parker’s car by taking off the wheel when he could not see the brake pad properly to determine whether it had deteriorated or not was sufficient, if accepted, to justify his dismissal.

75       When that evidence was not negatived by him, he was not able to establish that there was unfairness in his dismissal.  As we have said, the Commissioner’s finding was that she was unable to find that his version was correct and therefore unable to find that he had established the facts on which it might be found that the dismissal was unfair and that he had not received a fair go.

76       For ourselves, on a fair reading of all of the evidence, and the whole of the transcript of the evidence, including Mr Rawlinson’s evidence and excluding Mr Vadala’s evidence, it was open to the Commissioner to accept the evidence of the witnesses for the respondent, in any event.  However, we did not see them, and we take that matter no further.

77       It was established that the Commissioner at first instance had not at all misused the advantage that she had in seeing the witnesses.  It was open to find as she did.  It was not established that the exercise of the discretion miscarried, in accordance with the principles in House v The King (op cit). It is unnecessary for those reasons to decide any question of compensation or remedy.

78       The grounds of the appeal, for those reasons, are not made out, in our opinion.

79       We would dismiss the appeal for those reasons.

       Order accordingly