Bellhouse v Roads and Traffic Authority

[1996] IRCA 304

DECISION NO:  304/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - employee borrowing money from float for personal use - whether SERIOUS MISCONDUCT in circumstances.

North -v- Television Corporation Ltd (1976) 11 ALR 5
Gooley -v- Westpac Banking Corporation (1995) 129 ALR 628

KATE ELIZABETH BELLHOUSE -v- ROADS AND TRAFFIC AUTHORITY

No. NI 4960 of 1995

COURT:       WALKER JR
PLACE:       SYDNEY
DATE:          10TH JULY 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SYDNEY REGISTRY

No. NI 4960 of 1995

BETWEEN:

KATE ELIZABETH BELLHOUSE
Applicant

AND:

ROADS AND TRAFFIC AUTHORITY
Respondent

BEFORE:     WALKER JR
PLACE:       SYDNEY
DATE:          10th JULY 1996

REASONS FOR JUDGMENT

Kate Bellhouse commenced employment with the Roads and Traffic Authority in February 1993, as a part time Customer Service Operator at the Moree Branch.  In June 1994, she was promoted to the position of driving tester and is qualified to test applicants for licences for cars, motorcycles, 3A rigid trucks, small buses and semi-articulated vehicles.

As a driving tester she worked in Moree on Mondays and for the rest of the week attended other outlying centres at Boggabilla, Boomi and Mungindi.  When the applicant attended the itinerant centres she carried with her a float of $150.00 in a tin for the purpose of giving change to customers.  At the end of each day she would balance the takings at the R.T.A office in the town, take the cash to the post office and convert it into a money order and return to Moree with the money order and cash tin with the $150.00 float and lock it all in the safe.  The applicant’s evidence was that she would usually arrive back to Moree at about 4.30 pm to 4.45 pm although she would often be later, and usually after the staff had left for the day.  

$20.00 FOR PETROL. 

On Wednesday, 13 September 1995, the applicant was required to attend Boomi as her part of her itinerant run.  She left her residence 15 kilometres out of Moree and drove into work in her own vehicle.  She then parked her vehicle in Moree and drove the R.T.A. vehicle onto Boomi.  She said in evidence that,

“That Wednesday morning I was coming into town I realised that I wouldn’t have enough fuel to get me back home in the afternoon.  I was worried about getting into town, didn’t think I’d have enough fuel to get back in the afternoon and thought, “I’ve got to get some money during the day before I have to turn around and go home in the afternoon.”

The reason the applicant did not have any of her own money was because she had made a loan to a friend the previous week.  Boomi, is a very small town and according to the applicant, does not have a bank so she was unable to access her account when she arrived there.  Although the applicant had been previously told she could borrow money from Marie Conroy or Clint Carter if she found herself short, these people were attending a meeting in Tamworth and that, she said, was the reason she did not telephone them.  When asked in cross examination why she did not telephone her friend, Kate Munro back at the Moree office, (a person that had previously made up the difference in the float when the applicant had borrowed money on prior occasions), the applicant agreed with counsel that she just did not think to ring her.  It was the applicant’s evidence that she had planned to see her friend Nicole Reid at the Business Enterprise Centre when she returned to Moree that afternoon and borrow the petrol money from her.

The applicant arrived back in Moree on the afternoon of the 13 September 1995 at about 4.50 pm and deposited the Boomi briefcase containing the takings and the $150.00 float in the R.T.A. safe.  She then visited her friend, Nicole, at the Business Enterprise Centre to attempt to borrow money for petrol and was unsuccessful.  She then returned to the R.T.A. office opened up the safe and took $20.00 out of the float.  She obtained petrol at the service station across the road from the R.T.A office and drove home. 

When she arrived home the applicant received the money that her friend had borrowed from her and then drove back into Moree to go shopping.  The applicant said she intended to replace the money she had borrowed from the float when she came back into town but changed her mind because she would have to turn the alarms off and on again and she thought it better to put it back in the morning.

Marie Conroy, the office manager, arrived back at the Moree office on the

13 September 1995, at about 6.30 pm after attending a meeting in Tamworth. She decided to carry out a spot check of the mail and the floats and discovered that there was $20.00 missing from the itinerant float.  Ms Conroy then telephoned the area manager, Mr Clint Carter and informed him of the situation.  The next day, 14 September 1995, Ms Conroy called the applicant into her office when she arrived at work and asked her why the float was deficient.  The applicant admitted that she had borrowed the money to buy petrol to get home the night before.  Following this a number of events unfolded over the next three months and the applicant’s employment was subsequently terminated on the 11 December 1995, for misappropriating Roads and Traffic Authority funds.

A HISTORY OF BORROWING THE FLOAT MONEY.

Ms Kate Munro, a workmate and a friend of the applicant gave evidence that in early 1995 she had found the float to be short on two occasions.  Her evidence was that,

“In early 1995, whilst also performing itinerant Customer Service Officer duties I found the float of money to be short.  I can remember two occasions in question and the amounts were $25.00 and an amount between $4.00 and $7.00.  I questioned Kate Bellhouse about these shortages.  To the best of my memory, she replied “I forgot to take the money out of my account”.  “I needed the money to buy lunch and magazines and I borrowed the money and I forgot to replace it”.  To the best of my memory, I said to Kate Bellhouse, “You can’t do that” and “It’s a sackable offence”.

The applicant says she does not recall Ms Munro telling her that it was a sackable offence to borrow the float money and disputes the claim that she had ever borrowed an amount of $25.00.  In examination in chief she was not forthcoming with evidence as to how many times she had borrowed from the float before.  However in cross examination she admitted that she knew that she was not allowed to borrow from the float.  When asked how often she had borrowed she admitted, “five times”, and later when asked if it could have been more than five times the applicant said it was three times.

EVIDENCE OF MARIE CONROY THE OFFICE MANAGER

Marie Conroy the R.T.A. Office Manager at Moree produced her office diary as a contemporaneous record of the events leading up to the applicant’s termination. On the 21 March there is the following record,

Kate Munro approached me this afternoon and said she wanted to speak with me about something really important.  Kate M said that last week when she was speaking with Peter Bartimote, DTC, she expressed concern about the operation at the itinerant centres.  Her main concern was that on the odd occasion that she had relieved at the centres the float had been out, sometimes as much as $25.00. 

Kate M had questioned Kate B about it and Kate B had said that she had forgotten to get money out of her account and needed to buy lunch and magazines and had borrowed the money and forgotten to replace it.  Kate M had told Kate B that she couldn’t do that and that it was a sackable offence.  Kate M said that she didn’t tell anyone earlier because she thought Kate B had stopped doing it but realised recently that the practice was still continuing.

Kate M told Peter what was happening.  Peter said to Kate M that it was a very serious offence and would have to let Clint Carter (ABM) know about it.  Peter asked her if I had known about it and Kate M said she hadn’t told me.  Peter suggested to her that she tell me.  I rang Clint, later this afternoon, and told him that I believed he knew something about the Itinerant Centres & could he fill me in on what was happening.  He said to me that he would be in Moree tomorrow afternoon to check the itinerant float when Kate B returned from Boomi.  He asked that I be present when he spoke to Kate B.  If he found the float to be out he would have no option but to dismiss Kate B.  If the float was okay he would be issuing Kate B with a very severe reprimand.

On the 22 March 1995 when the applicant returned to the Moree office, Ms Conroy checked the applicant’s float and found that it balanced.  Ms Conroy then told the applicant that Mr Clint Carter wanted to speak with her and a conversation took place.
The applicant’s version of this event was that it was merely a casual conversation where Mr Carter had said,

“Kate, you’re not allowed to borrow, don’t do it again sort of thing”, and I said, “Okay, Clint”.

The applicant said that she could not recall being told that that if she did it again her employment might be terminated.  Ms Conroy’s diary note as to the meeting on that day is as follows,

Clint arrived here this afternoon and asked me to detain Kate B when she arrived from Boomi. When Kate B arrived I told her that Clint wanted to have a few words with her. I then conducted a check of the float and found that all monies were correct.

Clint spoke to Kate B and told her how important it was that all monies be correct at all times.  He emphasised that if at any time monies were missing albeit that one returns the money afterwards the person in charge of the money would be held responsible and would be disciplined.  He said that the person would then face criminal charges and be dismissed.

Ms Conroy’s diary note of the events of the 14 September 1995 is as follows,

I arrived at the office at 7.30 am and checked the Boomi briefcase to see if the missing $20.00 was there.  It was not.  I rechecked the float.  There was only $130.00 when there should have been $150.00.  I sat the float tin on my desk waiting for Kate to arrive at the office.  When Kate arrived she made a phone call and as soon as she was off the phone came into my office and said: “I know the float is out, by $20.00.  I took it to buy fuel for my car as my handycard wasn’t working and they won’t take cheques.”
I said to Kate that Clint and I had told her that she was not to use public monies.  I asked her, “Why?, You make about $30,000 a year.” She said, “I can’t get myself organised”.  “I’m going to put the money back now.”  I said to Kate that I had checked the float yesterday afternoon and had a sleepless night over it.  I then raised my voice and said “How stupid can you be”.  I calmed down and told her that I had no option but to report the matter to Clint.  I rang Clint’s office.  He was on another line and I was told that he would ring me back.  During our conversation Kate said to me that it was the first time she had used the float since Clint and I told her of the correct procedures.

THE DISCIPLINARY PROCESS

Following the discovery of the borrowed $20.00 from the float, Ms Conroy prepared a written report concerning the matter as requested by Mr Clint Carter the Area Business Manager.  Mr Carter then prepared a report on the matter and faxed it to the Manager of the northern region of the R.T.A.  In his report Mr Carter attached a copy of Ms Conroy’s report setting out the circumstances surrounding the incident and also said that,

“Prior to this the Registry Manager had received information from another staff member that on one occasion the change reserve was short when she received it from Ms Bellhouse.”

And further on he commented that,

“In view of the staffing situation at Moree and the need to use Ms Bellhouse at the itinerant sites, she is continuing to fulfil her role, pending further action you may instigate.”

At the conclusion of his report Mr Carter made the following recommendations,

“I recommend the following:-

1. The matter be handled internally without police involvement,

2. The matter be referred to group audit,

3. Disciplinary action be commenced.”

During this period, a check of the Moree office was conducted to establish if there was any other accounting problems.  Mr Cossins, the Manager of Driver Vehicle Services, reported to Mr Kevin Connelly of the Fraud Prevention and Investigation Section, that there was nothing untoward coming to light other than a need to tighten some controls.

On the 8 November 1995, Mr J.H. Ralston, the Area Business Manager sent a letter to the applicant requesting her to attend a disciplinary interview at Belmont on the 17 November 1995.  The letter is as follows;

“You are required to attend a Disciplinary Interview at the Roads and Traffic Authority’s Central Coast / Newcastle Area Business office, situated at the corner Pacific Highway and George Street, Belmont on Friday 17 November 1995 at 9.00 am”.

A Disciplinary Interview is required to discuss allegations of unacceptable work practices - misappropriation of Authority’s funds.

You can make arrangements for an independent observer to be present with

you at the interview.

The interview will commence at 9.00 am and a record of the interview will

be made. On completion of the interview, a transcript will be typed and

you will be given a copy.

You will be reimbursed for any reasonable travel and accommodation costs

incurred.

If you require any additional information, please contact me or your Area

Business Manager.”

The applicant attended the Disciplinary Meeting on the 17 November 1995, and a transcript of that meeting was marked as Exhibit 9 in these proceedings. During that interview the applicant was asked by Mr Ralston if she had ever borrowed R.T.A. money from cash floats before and the applicant replied,

“Once when I borrowed $2.00, and that was when Clint said:

“You are not allowed to do it, you are not allowed to borrow.”

Following this interview Mr Ralston reported to Mr Cossins, the Manager of the Northern Region. In his conclusion Mr Ralston said,

“The allegations concerning the unauthorised use of the Authority’s money for private use is confirmed, notwithstanding the mitigating circumstances. I believe that Ms Bellhouse’ perceived desperate financial situation may have clouded her judgment on this occasion, however I believe that there was no intention to defraud the Authority”.

RECOMMENDATION.

Ms Bellhouse has breached her obligation and responsibilities when handling the Authority’s funds.  However, I feel that she has suffered a great deal of emotional stress throughout the disciplinary process.  I recommend the following disciplinary action be taken:

Ms Bellhouse be issued with a first warning in accordance with the Authority’s Human Resources Policy subject to dismissal action should there be any re-occurrence of unethical or other inappropriate behaviour.”

Mr Cossins, on receipt of this report, reported to the Director of the Northern Region on the 28 November 1995.  Mr Cossins was of the opinion that Mr Ralston’s recommendation did not provide for an appropriate penalty and he recommended that the applicant be terminated. 

The Director, Mr Warren Shearer, on receipt of this report, sent a letter to the applicant indicating that on the evidence available he considered the allegations proven and that he intended taking further action.  He then gave the applicant the opportunity to submit any further information she considered should be taken into account before he determined the disciplinary action to be taken and that she should provide a response by 6 December 1995. 

The applicant replied by letter of the 4 December 1995, and asked that if there was a possibility of dismissal, would consideration be given to a demotion instead.  By letter of 11 December 1995 the applicant was advised by Mr Shearer that her employment was terminated on the grounds of misappropriation of the Authority’s funds.

Was the termination for a valid reason?

There can be no doubt that the termination of the applicant’s employment was for a valid reason.  The applicant admitted in her evidence that she was aware that she could not borrow the float monies for her personal use.  She admitted that she had read the code of conduct document at the Moree Office although she said she only read the front page.  There is no doubt in my mind that taking into account the responsible position she was required to undertake that she would of been aware of the seriousness of using these funds for her own use.
The evidence of her friend, Ms Kate Munro, the office manager, Ms Marie Conroy and the area business manager, Mr Clint Carter, all corroborate the fact that she was aware and had been told that to do so was a sackable offence.

Did the applicant prove that the termination was nevertheless harsh unjust & unreasonable?

The applicant, Ms Bellhouse, although a little guarded in her evidence impressed me as a witness.  She appeared as a honest person and although she may have been confused as to the number of times she had borrowed the float monies there is no doubt in my mind that she ever contemplated stealing the money.  She has always admitted that she did borrow the money so there can be no allegation of stealing in this matter and of course there never has been.

The applicant has argued that the special circumstance that the applicant found herself in on the night of the 13 September 1995 should have been taken into account and that termination of her employment therefore contravened Section 170 DC.  It was further argued that she was not afforded procedural fairness in that up until the letter from Mr Warren Shearer of the 29 November 1995, she was never made aware that her employment was in jeopardy and then had very little time to mount a defence.  Added to this was the allegation that the actual process of determination having taking three months was also unreasonable in the circumstances.

Although I feel great sympathy for the applicant in this case there could never be any defence to the act of borrowing the float money on the 13 September 1995.  It simply was not a matter of necessity that she take the money from the float to get petrol for her car.  She even admitted this in the transcript of interview with Mr Ralston on the 17 November 1995 when she said,

“When I think back on it and look at all the other things I could have done, there were other options that I could have taken but I didn’t think and I did the wrong thing.”

If the applicant was in such a difficult situation she could have simply driven the R.T.A. vehicle home that night, collected the money from her friend, driven back to do her shopping in Moree and then returned the vehicle.  There is also no doubt that she could have always asked a friend for a lift home, or rang her friend at home to come and pick her up.

The applicant’s position with the R.T.A. was a very responsible position where the element of trust was an essential part of the contract of employment.  She was required to attend unsupervised in outlying country towns to examine persons for various driving licences and to collect the fees for the examinations. 

In recent years there has been much criticism of the R.T.A and Driving Examiners who were subject to bribes and corruption and it is therefore understandable that employees of the R.T.A engaged in this work exhibit behaviour that is above reproach.  In the circumstances the R.T.A. has determined that the applicant be dismissed and it was not a decision taken lightly by them.  It is a pity that the decision took such a long time to be made but it was done in accordance with their procedures and the applicant was offered every chance to defend herself.  The applicant’s action of using public money for her own use was conduct that must be, in the circumstances of this case, regarded as serious misconduct.  Particularly as she had been warned before by several fellow employees that to do so was an offence that could cause the termination of her employment and criminal charges being brought.  I am satisfied that her conduct was of a nature as that described by Smithers and Evatt JJ in a passage in North -v- Television Corporation Ltd (1976) 11 ALR 599, which was given approval by Wilcox CJ in Gooley v. Westpac Banking Corporation (1995) 129 ALR 628 at 636-637. I must therefore find that the termination was not harsh unjust or unreasonable in the circumstance and that the application must be dismissed.

I certify that this and the preceeding thirteen (13) pages are a true copy of the reasons for judgment of Judicial Registrar Walker.

Legal Assistant:       Claire McAuley

Date:  10th July 1996

Appearances:

Solicitor for the applicant:            Mr J. Fernon
Counsel for the applicant:             Mr P. Punch

Solicitor for the respondent:         Mr W. F. Barry
Counsel for the respondent:  Mr C. Newnham

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SYDNEY REGISTRY

No. NI 4960 of 1995

BETWEEN:

KATE BELLHOUSE
Applicant

AND:

ROADS AND TRAFFIC AUTHORITY
Respondent

BEFORE:     WALKER JR
PLACE:       SYDNEY
DATE:          10th JULY 1999.

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.