Bedford v MEU, NSW branch Sydney Electricity

[1996] IRCA 248

DECISION NO:  248/96

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION- no VALID REASON - applicant refusal to answer allegations of a criminal nature previously dismissed by Magistrate - res-judicata and estoppel.

Beeches Workingmen’s Club and Institute of Trustees -v- Scott [1969] 2 All E.R. 420.

RONALD JOHN BEDFORD -V- MEU, NSW BRANCH SYDNEY ELECTRICITY

No. NI 3916 of 1995

COURT:       WALKER JR
PLACE:        SYDNEY
DATE:          26 APRIL 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SYDNEY REGISTRY

No. NI 3916 of 1995

BETWEEN:

RONALD JOHN BEDFORD
Applicant

AND:

MEU, NSW BRANCH SYDNEY ELECTRICITY
Respondent

REASONS FOR JUDGMENT

Ronald John Bedford commenced his employment with Sydney Electricity on 1 September 1980, and for the last thirteen years has carried out the duties as a meter reader.  His record is unblemished and remains so despite having his employment terminated on the 25 September 1995.

In December 1993, it came to his notice that he was under investigation concerning the tampering with electricity meters and subsequently on the 10 February 1994, he attended an interview at the Revenue Protection Unit of Sydney Electricity, Southern Region office in Judd Street Oatley.  In attendance at this meeting was Mr J.A. Ison, the Manager of the Revenue Protection Unit, Mr M. Davies the General Manager of the Southern Region, Mr L Jamieson, Mr B. Ferguson, Mr G Henderson, a solicitor representing the applicant, Mr G. McLean, a union representative and the applicant.  Mr Ison asked the applicant if he had ever interfered with meters at the places where he resided, at Ruse, Davistown or Lakemba.  The applicant denied the allegations.  After the meeting there was no action taken against the applicant and he continued to carry out his usual duties as a Senior Meter Reader.

Following the interview the next the applicant heard of the allegations was when he was interviewed by the Police at Five Dock Police Station, however no charges were ever made on behalf of the Police as a result of their investigations.

On the 6 December 1994, summonses were issued from Parramatta Local Court, by Mr John Ison, the Manager of the Southern Region Revenue Protection Unit of Sydney Electricity and Mr Stephen John Tutill an officer of Sydney Electricity.  These summonses related to the use of electricity from the Authority’s supply without permission, interfering with meters and altering the register of a meter at premises where the applicant had resided.  These criminal charges were heard before a Magistrate on the 22 May 1995 and 21 June 1995. At the conclusion of the hearing the Magistrate dismissed all charges and awarded costs against the informants.

Following the Court hearing the applicant returned to work the following Monday and continued to carry out his normal duties as a meter reader for the next three months until late September when he received a letter through official channels requesting him to attend the office of the General Manager of the Southern Division for a disciplinary interview.  This letter was marked as exhibit 1 and is set out below,

21 September 1995

Mr Ron Bedford,
  Please attend on Monday 25 September at 10.30am in my
         office a disciplinary interview regarding your complicity in the interference
         with meters and theft of electricity at 51 Dandenong Street, Ruse and 22
         Magnolia Street, Davistown.

At the interview you will be specifically asked to explain why you were not
         aware of the interference with the electricity meters at these addresses, given
         the evidence documented from the recent court case on this matter.

You have the right to representation at this interview.

M.Davies
        GM-S

The applicant attended the meeting of the 25 September 1995, with his Union representative Mr G. McLean. He said in evidence that Mr Davies said to him,

“.... that they were not happy with the judge’s decision and that you were      tampering - and we can’t understand why you   did not see that the meters had been    tampered with.”

The applicant replied that he had legal advice that he was not required to answer any questions relating to the issues that had been determined by the Magistrate.  Mr Davies then took a short adjournment and returned with a letter which he gave the applicant.  The letter is set out below,

Disciplinary Letter     25 September 1995

Dear Mr Bedford

I refer to our discussion of your alleged misconduct regarding your
         complicity in the interference with meters and associated theft of
         electricity at 51 Dandenong Street Ruse and 22 Magnolia Street
         Davistown.

After consideration of the information available to me and noting that you have declined to further explain your position at our meeting this morning, I have decided to take the disciplinary action of dismissal as from 1.30pm on 25 September 1995.

In his examination in chief Mr Davies gave evidence that the reason he arranged the meeting for the 25 September was because,

“At this stage I was still left with a strong suspicion that Ron Bedford had been in one manner or another, involved in the theft of electricity. That suspicion was reinforced by what I had read in that transcript by indeed the Magistrate’s finding. The Magistrate’s finding that there definitely had been interference with the meters.”

THE MAGISTRATES DECISION

All charges against the applicant in this case were dismissed.  The Magistrate described the evidence against the defendent as, “...straws in the wind” and in considering the question of costs said that the charges against the defendent were only suspicions and nothing more and that he would therefore award costs against the informants.  The Magistrate reduced the costs on the basis that the hearing had taken more time because the defendant had denied that there had been interference with the meters.  This statement by the Magistrate appears to be the basis for the second paragraph in the letter of the 21 September 1995 where the defendent was informed that at the interview on the 25 September 1995 he would be specifically asked to explain why he was not aware of the interference with the meters at the premises at Ruse, and Davistown.

Although the full transcript of the Local Court hearing was not put into evidence the applicant’s solicitor said he had no objection to me reading the full record and I have taken that opportunity in order to put this matter into perspective.  Although I do not wish to make any criticism of the Magistrate’s decision, I feel that the evidence does not fully support the conclusion that the defendant was denying that there had been any interference with the meters.  The impression I received was that he was denying that he was responsible for the interference although some of his answers gave me the impression they may have been a little ambiguous.  For example at page 23 of the transcript the defendant is asked in cross examination,

Q.And do you agree with me that it’s quite a coincidence that two premises that you’re associated with are interfered with?

A.          Yeah it is, obviously

And at page 25 the defendant is asked,

Q.And if we can just have it perfectly clear, in your opinion you can’t see anything about those seals that may indicate a tampering?

A.Well the two, two seals that aren’t the same numbers as the other one-well I reckon they look terrible. I’d say they had been interfered with for sure.

Again at page the question is asked,

Q.Though what you saw of that seal that flattening of the top left hand corner of it as I am showing you, do you consider that could be a sign of it having been recrimped?

A.          It could be a sign of it, yes there’s no doubt about that.

This evidence by the defendant appears to accept that there has been interference however he also gave evidence that he had no knowledge of the mechanical workings of meters and therefore could not say if there was interference with the internals.

I must say that I am at a loss to understand why the applicant should know that there had been interference with the meters in the first place.  He was a boarder at the Ruse premises and was part owner of the premises at Davistown.  He was not responsible for reading the meters at these addresses and it appears from the evidence before the Local Court that the irregularities concerning the meters was not detected by the usual meter reader but by a revenue protection officer who had been alerted to interference of the meters by the applicant’s friend.  From the evidence it appears that is was not obvious that there had been interference until the meters were inspected closely.  The meters were in fact removed and taken away for further examination.  It was also possible that the applicant had been set up by his so called friend who had informed on him and later accused him of having an affair with his wife or by someone who disliked him because of his role relating to his union activities.  Whatever the truth was concerning this matter it had come to a conclusion when the Magistrate handed down his decision and unless there was some evidence other than mere suspicion then the case was closed.

WAS THE TERMINATION FOR A VALID REASON?

There is no doubt in my mind that the General Manager, Mr Mervyn Davies, terminated the applicant because he was convinced the applicant was responsible for the interference with the meters and the theft of electricity.  He said so in his evidence and this is quite clear from the letters of the 21 and 25 September 1995.  To dismiss him for refusal to answer questions concerning matters already heard by a court and decided upon is farcical, especially so when his refusal was based on advice from his solicitor that such matters were res judicata.

Counsel for the respondent argued that when Mr Davies had arranged the meeting of the
25 September 1995 he was,

“...at law, perfectly at liberty to ask Mr Bedford questions that would have gone to his direct involvement with interfered with those very meters that had been the subject of the case. My authority for putting that submission is the case of the Beeches Workingmen’s Club v. Scott....1969 All England Law Reports Vol.2.”

Lord Denning in that case decided that a Steward who had been found not guilty of stealing money by a Magistrate was nevertheless able to be again taken to court pursuant to a claim in contract (a clause in the Steward’s contact was that he was responsible for any deficiency in the takings) and that there was no estoppel.  This case is certainly no authority for Mr Davies to ask the applicant questions that he had already answered on oath at the hearing before the Magistrate especially since it now appeared from the letter of the 21 September 1995 that he was being accused of a fresh criminal charge of “complicity in the interference with meters and theft of electricity”.

It was also raised by counsel for the respondent that res judicata and estoppel did not apply as the Mr Davies was not the party who commenced the action in the Local Court, however, I am unable to accept that there is any difference.

There can be no other finding in this case other than that the termination of the applicant’s employment, was in the circumstances not for a valid reason .

REMEDY

In consideration of all the circumstances I order that the applicant be reappointed to the position in which he was employed immediately before the termination and that the respondent pay to the applicant all remuneration lost because of the termination.        

I certify that this and the preceeding eight (8) pages are a true copy of the reasons for judgment of Judicial Registrar Walker.

Legal Assistant:  Claire McAuley

Date:  13 June 1996

Appearances:

Solicitor for the applicant:     Michael Hyland
Counsel for the applicant:      Paul Barnes

Solicitor for the respondent:   Tim Capelin
Counsel for the respondent:    M. Hadley