Anthony Sangwin v Imogen Pty Ltd

[1995] IRCA 400

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - whether valid reason for termination of employment

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

ANTHONY SANGWIN -v- IMOGEN PTY LTD

No.  SI1161/95

JUDICIAL REGISTRAR:                   L FARRELL
PLACE:  ADELAIDE
DATE:  24 AUGUST 1995
INDUSTRIAL RELATIONS COURT             )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY           )

No. SI1161 of 1995

B E T W E E N:

ANTHONY SANGWIN

Applicant

- and -

IMOGEN PTY LTD

Respondent

MINUTES OF ORDER

BEFORE:JUDICIAL REGISTRAR  FARRELL

PLACE  :           ADELAIDE

DATE             :          24 AUGUST 1995

THE COURT ORDERS THAT:

The Application is dismissed.

NOTE:   Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT             )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT  REGISTRY          )

No. SI1161 of 1995

B E T W E E N:

ANTHONY SANGWIN

Applicant

- and -

IMOGEN PTY LTD

Respondent

BEFORE         :          JUDICIAL REGISTRAR FARRELL

PLACE                      :ADELAIDE

DATE             :24 AUGUST 1995

REASONS FOR JUDGMENT

This is an Application pursuant to s.170EA.  The Applicant claims that his employment was terminated unlawfully.  He seeks compensation.

The Applicant commenced employment as a foreman at the Respondent’s upholstery factory on 8 February 1995.

His two sons commenced as apprentices at about the same time.

The Applicant provided many of his own tools including a clinchet gun, which is a device which worked to clinch upholstery to wood.  Clinchets are used in the clinchet gun.  The clinchet gun is very like a stapler. 

At about lunchtime on 17 May the Respondent terminated the Apprenticeships of the Applicant’s sons. At the end of the day the Applicant instructed one of his sons to separate tools that belonged to the family from tools that belonged to the Respondent ready to be taken home.  A box of clinchets belonging to the Respondent valued at $167.00 had been placed with tools belonging to the Respondent.

Both of the Applicant’s sons took items out to the car.  Also taken out to the car was the box of clinchets.

Mr John Heath gave evidence that he had heard the Applicant tell one of his sons to “take the box of cleets out to the cars”.  He went to the office and told Mr Ashcroft, the Managing Director of the Respondent.  Mr Ashcroft went to the car and spoke to the Applicant’s son.  He saw the box of clinchets in the car.  He took a few of the clinchets into the office and showed them to Mr Heath who confirmed that they were the “cleets”.

Mr Ashcroft went into the factory and told the Applicant’s son to return the box of “cleets”.  The box of clinchets were then returned to the Respondent’s factory.

The Applicant and his sons left the Respondent’s premises.  The following morning the Applicant attended work.  After running through some production matters with Mr Ashcroft he was asked to come to the office.

He was asked to explain why the clinchets had been taken to the car.  He said it was a misunderstanding, he did not explain how the misunderstanding had occurred.  His employment was then terminated.

The Applicant argued that Mr Heath’s recollection was faulty or that he had misheard what the Applicant had said in the factory.  The difficulty with that argument is that Mr Heath had conveyed what he had heard to Mr Ashcroft and Mr Ashcroft had acted on it immediately.  The evidence is uncontroverted that Mr Ashcroft immediately went out to the car and found the box of “cleets” or clinchets. 

On balance I am satisfied that the Applicant did instruct one of his sons to put the box of clinchets in the car.  In the absence of any reasonable explanation by the Applicant I find that there was a valid reason for the termination of the Applicant’s employment.

In this case, I am not satisfied that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

In the circumstances of this case the conduct of the Applicant amounts to serious misconduct and the Respondent was there entitled to dismiss the Applicant without notice.

I certify that this and the preceding page are a true copy of the reasons for my judgment.

DATE OF HEARING             :          7, 15 and 16 August 1995

FOR THE APPLICANT          :          Mr Condon

FOR THE RESPONDENT      :          Ms Dowling