Aarron Paul Johnson v Queens Parade Hardware Pty Ltd t/as Clifton Hill Mitre 10
[1995] IRCA 537
•3 Oct 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2152 of 1995
B E T W E E N :
AARRON PAUL JOHNSON
Applicant
AND
QUEENS PARADE HARDWARE PTY LTD
T/AS CLIFTON HILL MITRE 10
Respondent
Before: Judicial Registrar Fleming
Place: Melbourne
Date: 3 October 1995
REASONS FOR DECISION
BACKGROUND
The Respondent concedes that if the Court finds that the employment of the Applicant has been terminated then there is a clear breach of the Act.
The Respondent further concedes that this case hinges entirely upon whose evidence the Court believes as to what occurred at the meeting on 20 March 1995, the date of the cessation of employment.
FINDINGS OF FACT
Terms of employment
Mr Johnson was employed by Queens Parade Hardware Pty Ltd (trading as Clifton Hill Mitre 10) from 2 January 1994 until 21 March 1995. He is currently 21 years old and he started work with the Respondent as a salesman and was promoted to assistant manager by Mr Day who was the manager at the time. Mr Day prepared a contract for Mr Johnson but the Respondent has failed to produce this document.
The addendum to the contact (Exhibit A1) is dated 20 April 1994 and is the letter of appointment of Mr Johnson to his position as assistant manager. This letter states that his appointment will be effective from 18 April 1994. The terms of appointment include a salary of $29,000 plus a cash bonus of $150 monthly. I will deal with the cash bonus issue later.
Mr Johnson worked as an assistant manager until 20 March 1995. Mr Day resigned from the Respondent to take up a position of another hardware retailer. When Mr Day resigned Mr Culph, who was known to Mr Johnson, commenced as the new manager on 20 February 1995.
In the period of Mr Johnson’s employment as assistant manager with Mr Day he was described as having the attributes to make a very good assistant manager. Mr Day described Mr Johnson as a friend and said that he was unaware of any conflict between Mr Johnson and other staff. Mr Forbes who had also applied for the position of assistant manager and one other staff member had complained to Mr Day that Mr Johnson may be getting “too big for his britches” but Mr Day did not see this as a serious criticism.
Circumstances leading up to cessation of employment
In the week preceding Monday, 20 March 1995 Mr Johnson had been off work suffering sinus. I am satisfied that he had a doctors certificate to support the time off. A staff meeting was scheduled for Friday, 17 March. Mr Johnson had instigated the meeting by suggesting that Mr Culph call a meeting to get to know the staff. The meeting was attended by all staff and Mr Culph but Mr Johnson did not attend because of his illness. Mr Johnson worked on Saturday, 18 March 1995 and on Monday, 20 March 1995 although it was his rostered day off he agreed to work.
On Monday, 20 March 1995 Mr Culph called Mr Johnson into his office. Mr Culph had a document in front of him setting out ten points (Exhibit R4). This document was not shown to Mr Johnson. Mr Culph called upon Mr Johnson to answer each point.
Mr Johnson’s version of events of this meeting is in conflict with Mr Culph’s. Mr Johnson described Mr Culph as aggressive and as not giving Mr Johnson any reasonable opportunity to respond to the allegations. Mr Culph described the meeting as one where Mr Johnson was seemingly nonchalant and unco-operative and that Mr Culph described himself as being very calm.
The wording of Exhibit R4 is clearly provocative and suggests the author wrote it with passion and on its face it is a document which is extreme in its language and this tends to detract from its substance. Mr Johnson described Mr Culph as aggressive and the tone of Exhibit R4 is aggressive. Mr Culph has denied that this was his attitude. Certainly Mr Culph did not have the demeanour of an aggressive person in the witness box. If the Court accepts Mr Culph’s account of the staff meeting on Friday, 17 March which was his first staff meeting as manager it is plausible that he was aggressive on Monday, 20 March. Mr Culph’s evidence was that at the staff meeting he was told by members of staff that Mr Johnson had called him names. Mr Culph was told by staff that he was considered to be “a mongrel, a dickhead, an arsehole and that he wouldn’t be a good manager”. Mr Culph was also told of other problems relating to Mr Johnson as detailed in Exhibit R4. Mr Culph said that he had left the meeting feeling he had taken one step forward and five steps back. He also described staff morale as “ordinary don’t care attitude” and said that “all staff were told by Mr Johnson that they would be sacked”. I am satisfied that at the meeting on 20 March Mr Culph’s demeanour was aggressive towards Mr Johnson.
Mr Culph went through the ten points item by item and Mr Johnson attempted to respond to each one but his evidence was that he did not have enough time to respond and that the demeanour of Mr Culph was furious and aggressive. Mr Culph entered the room saying “To say I’m disappointed with you is an understatement, I’m absolutely furious”. Mr Johnson sought to respond to the allegations by denying most of the points raised or by giving an explanation but he was not given an opportunity to fully respond. Mr Johnson asked for the source of the allegations but Mr Culph declined to give him the information. Mr Culph then said “I can’t legally sack you, I want you to resign ... effective of now”.
Mr Johnson left the office upset and angry. He went downstairs to collect his belongings. On the way back from collecting his belongings he was confronted by Mr Culph who said that he wanted the keys and asked him to sign a document which he placed in front of him. Mr Johnson who described himself as shocked and upset signed a document that he believed had said that he was resigning. He was unable to fully comprehend what was going on. Exhibit A3 is the document he signed. When Mr Johnson had signed the document it only had the words on it “I Aarron Johnson hereby tender my resignation effective immediately”. Mr Culph has subsequent to the signature of Mr Johnson placed on this document “Aarron returned to workplace 21/3/95. He told me he would like to withdraw his resignation and that if I wanted for him to leave I’d have to pay him out. I refused to do so and asked him to leave, he declined. I rang the police and had him removed.”
Prior to Mr Johnson signing the “resignation” Mr Johnson ran into Mr Forbes on the shop floor. Mr Culph had already spoken to Mr Forbes and Mr Forbes’ evidence was he said “Mr Johnson has just resigned and he was interested in talking to me about his position. Then Mr Johnson came down and said he was sacked and I said I thought you resigned and he said no he was forced to. He said I’d better look for another job because I was next and I laughed and said I’ve just been offered your job”. This evidence is revealing and supportive of Mr Johnson’s version of events. Mr Forbes is the first person to whom Mr Johnson has spoken after his meeting with Mr Culph.
Mr Johnson then left the premises. He telephoned Mr Day for advice and Mr Day told him to contact a solicitor which he did. The next day Mr Johnson returned to the Respondent’s premises. To assist him in his discussion with Mr Culph he had written a note to himself which is Exhibit A4. The note reads “Due to a misunderstanding at our meeting yesterday afternoon you may believe that I have resigned. This is not the case. I am ready willing and able to continue my duties. Thank you.”
On his arrival at work the next day Mr Culph told Mr Johnson he was no longer employed and that he should leave the building. Mr Johnson said that he was there to work and that he had no intention of resigning and that he wanted to discuss the matter. Mr Culph telephoned the police and when they arrived Mr Johnson was asked to leave and did so quietly. Mr Johnson was upset and annoyed.
In this proceeding Mr Johnson was accused of dishonesty, disloyalty, undermining management and theft. These allegations have not been supported by any evidence of the Respondent’s witnesses. The Respondent’s case is bereft of any plausible evidence to satisfy this Court of the dishonesty and/or lack of credibility of Mr Johnson.
Mr Johnson’s reputation has been under siege in this Court without any basis. The Respondent has sought to invent a case which does not exist. The Respondent has sought to rely on several episodes as proof of the Applicant’s dishonesty. I refer to these as follows:
Cash bonus
The Respondent suggested that this was payment made to Mr Johnson of which management had no knowledge. Mr Day the manager who approved the payments gave evidence which was not tested that he had authority to make such payments. Mr Baker suggested to the Court that he had only become aware of the payments since the commencement of this proceeding but Mr Culph, after having the benefit of hearing Mr Baker’s evidence, said that he had told Mr Baker about the cash bonus when he commenced in the position which was on or about 20 February 1995 and I am satisfied that Mr Baker knew of the bonus when Mr Day was employed by the Respondent. It is simply not believable to this Court that the cash bonus was anything other than part of Mr Johnson’s bona fide salary package as detailed in Exhibit A1. Neither Mr Johnson or Mr Day sought to conceal the receipt of the cash bonus, the amount was documented in Exhibit A1 and it was Mr Johnson who brought it to the attention of the new manager.
Hacksaw and shifter
As with the cash bonus Mr Johnson gave credible evidence which was corroborated by Mr Day that he received these items at the instigation of Mr Day the manager at the time. I am satisfied that there was nothing dishonest in Mr Johnson’s receipt of these items. He had permission to take them and to suggest otherwise is a nonsense. Mr Day gave evidence in support of Mr Johnson that he gave the authority for Mr Johnson to take the hacksaw and shifter at the close of the promotion.
Blower vac
I am satisfied that Mr Johnson had no intention of taking this item without paying for it. Mr Johnson left a note on the register to indicate to the cashier that it should be marked out to his account. He asked Mr Rapsey to ask the cashier to book it out. Mr Rapsey confirmed Mr Johnson’s evidence. Mr Rapsey was requested by Mr Johnson to ask the cashier to bill it and he did so. The representative for the Respondent tried to discredit the Applicant but all be succeeded in doing was to detract from the real issues in the case and diminish the value of his own case.
Garden shed
An allegation was made by the Respondent after the Applicant had ceased his employment that he had obtained a garden shed dishonestly.
The Respondent was unaware of the Applicant owing money on the shed until the Applicant’s mother, Mrs Johnson, telephoned the Respondent and advised it that the shed details needed to be provided so that her son could pay for it. This had come to her attention because when her son received his termination pay the shed had not been deducted. Only when Mrs Johnson had raised the matter with the Respondent did the Respondent fly into action and call the police. Mr Culph initially gave evidence that “[you] had to give an accused person a chance to respond even if they said it [or do it] we all make mistakes”. Mr Culph gave Mr Johnson no opportunity to defend himself in relation to the shed incident. The Respondent’s reliance on this incident is revealing. It shows to the Court the way Mr Culph conducted himself when investigating what he believed to be a wrongdoing by a member of staff. Mr Culph did not speak to Mr Johnson but rather he immediately called the police. Mr Johnson’s evidence of what occurred in relation to the shed satisfied me that he was not dishonest.
Box of nails
Mr Johnson took a box of nails from the Respondent to Mr Day at his new position at William Pearce & Sons. He did so in Mr Culph’s car and billed Mr Day for the nails rather than accepting cash on delivery. Mr Johnson did not seek to conceal his actions. The Respondent has failed to prove that this episode suggests anything other than what it was and that is a delivery of some stock to support another retailer. There was no evidence put to this Court that William Pearce & Sons is a serious competitor of the Respondent. It is not plausible that Mr Johnson’s conduct was in any way dishonest or inappropriate.
TERMINATION OR RESIGNATION
Mr Katz submitted that Mr Johnson resigned on 20 March 1995. There is no evidence to support this submission. It is ridiculous to suggest to this Court that a 20 year old assistant manager on a salary of $29,000 would resign from this position. Mr Johnson has denied he resigned and I accept his evidence. I prefer his account of what occurred on 20 March 1995. Mr Culph was not a credible witness. Mr Johnson’s evidence is supported by that of the Respondent’s first witness, Mr Forbes who said that Mr Johnson came down from the stairs and said that he had been sacked and when Mr Forbes commented that he thought Mr Johnson had resigned, Mr Johnson responded “I was forced to”.. The events of 21 March 1995 evidence the Applicant returning to work believing that there had been a misunderstanding on 20 March 1995 and he wanted to make it clear that he had not resigned. Mr Culph denied him any opportunity to discuss the events of 20 March 1995 and called the police to escort him off the premises.
REMEDY
Since his termination of employment Mr Johnson has earned $80 from his Amway business and $1,681.30 from his employment as a casual console operator at Ampol Road Pantry uo to 28 August 1995.
In view of my finding that there has been a termination and accepting the concessions made by Mr Katz at the outset of this case I propose to order that the Respondent pay to the Applicant compensation in the maximum amount less the amount he has earned since termination of employment. I do not propose to order reinstatement as I believe it is impracticable given the breakdown in the relationship between Mr Culph and Mr Johnson.
Accordingly pursuant to s.170EE(3) I order that the Applicant be paid the maximum amount of compensation of 26 weeks pay calculated at $15,460 less $1,761.30 monies earned being an amount of $13,698.70. I further order that pursuant to s.170DB the Respondent pay to the Applicant $1,120 in damages. I further order that the Respondent have 21 days in which to pay.
MINUTES OF ORDERS
THE COURT ORDERS:
The Respondent pay to the Applicant compensation in the sum of $13,698.70.
The Respondent pay to the Applicant $1,120 in damages.
That the Respondent have 21 days in which to pay.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court
Rules.
I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.
Associate:
Dated: 3 October 1995
Solicitors for the Applicant: M.K. Steele & Giammario
Counsel for the Applicant: Mr Geoffrey J. Herbert
Solicitors for the Respondent: Gary Katz & Associates
Counsel for the Respondent: Mr Gary Katz
Date of hearing: 16 August & 8, 19, 20 &
21 September 1995
Date of judgment: 3 October 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION or RESIGNATION - UNLAWFUL TERMINATION - VALID REASON - HARSH UNJUST UNREASONABLE
Industrial Relations Act 1988 ss.170DB, 170EE
AARRON PAUL JOHNSON -v- QUEENS PARADE HARDWARE PTY LTD T/AS CLIFTON HILL MITRE 10
No. VI 2152 of 1995
Before: Judicial Registrar Fleming
Place: Melbourne
Date: 3 October 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2152 of 1995
B E T W E E N :
AARRON PAUL JOHNSON
Applicant
AND
QUEENS PARADE HARDWARE PTY LTD
T/AS CLIFTON HILL MITRE 10
Respondent
MINUTES OF ORDERS
Judicial Registrar Fleming 3 October 1995
THE COURT ORDERS:
The Respondent pay to the Applicant compensation in the sum of $13,698.70.
The Respondent pay to the Applicant $1,120 in damages.
That the Respondent have 21 days in which to pay.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court
Rules.
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