Broomby v Boral Timber Tasmania Limited
[1996] IRCA 256
•14 June 1996
DECISION NO: 256/96
CATCHWORDS
INDUSTRIAL LAW - review of judicial registrar’s exercise of powers - employees in a position of trust - allegations that weighbridge operators falsified records to the detriment of employer
ENTERPRISE BARGAINING AGREEMENT - language of relevant section expressed in permissive and discretionary terms - no obligation on employer to suspend rather than dismiss an employee it suspects is guilty of misconduct
VALID REASON - terminations for sound, defensible or well founded reasons
PROCEDURAL FAIRNESS - internal company investigation - disciplinary interviews - employees appraised of the substance of the allegations raised against them - employees given an opportunity to discuss matter privately with union officials - employees unable to provide a satisfactory explanation for irregularities - employees summarily dismissed
Industrial Relations Act 1988 ss s170DC, 170DE, 170EA
Broomby v Boral Timber Tasmania Limited, TI 189R of 1994, Industrial Relations Court of Australia, Lee J, 3 August 1995 (as yet unreported).
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
Walker v McLeod (1984) 7 IR 94.
No. TI 189R of 1994
DENNIS IAN BROOMBY v BORAL TIMBER TASMANIA LIMITED
No. TI 190R of 1994
LEWIS DOUGLAS COOPER v BORAL TIMBER TASMANIA LIMITED
No. TI 191R of 1994
DENNIS MICHAEL WELLS v BORAL TIMBER TASMANIA LIMITED
No. TI 192R of 1994
DAVID KEITH GILLIES v BORAL TIMBER TASMANIA LIMITED
JUDGE: Marshall J
PLACE: Melbourne (heard in Hobart)
DATE: 14 June 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
TASMANIA DISTRICT REGISTRY )
No. TI 189R of 1994
BETWEEN: DENNIS IAN BROOMBY
Applicant
AND: BORAL TIMBER TASMANIA LIMITED
Respondent
JUDGE: Marshall J
PLACE: Melbourne (heard in Hobart)
DATE: 14 June 1996
ORDER
THE COURT ORDERS THAT:
1.The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
TASMANIA DISTRICT REGISTRY )
No. TI 190R of 1994
BETWEEN: LEWIS DOUGLAS COOPER
Applicant
AND: BORAL TIMBER TASMANIA LIMITED
Respondent
JUDGE: Marshall J
PLACE: Melbourne (heard in Hobart)
DATE: 14 June 1996
ORDER
THE COURT ORDERS THAT:
1.The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
TASMANIA DISTRICT REGISTRY )
No. TI 191R of 1994
BETWEEN: DENNIS MICHAEL WELLS
Applicant
AND: BORAL TIMBER TASMANIA LIMITED
Respondent
JUDGE: Marshall J
PLACE: Melbourne (heard in Hobart)
DATE: 14 June 1996
ORDER
THE COURT ORDERS THAT:
1.The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
TASMANIA DISTRICT REGISTRY )
No. TI 192R of 1994
BETWEEN: DAVID KEITH GILLIES
Applicant
AND: BORAL TIMBER TASMANIA LIMITED
Respondent
JUDGE: Marshall J
PLACE: Melbourne (heard in Hobart)
DATE: 14 June 1996
ORDER
THE COURT ORDERS THAT:
1.The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
TASMANIA DISTRICT REGISTRY )
No. TI 189R of 1994
BETWEEN: DENNIS IAN BROOMBY
Applicant
AND: BORAL TIMBER TASMANIA LIMITED
Respondent
No. TI 190R of 1994
BETWEEN: LEWIS DOUGLAS COOPER
Applicant
AND: BORAL TIMBER TASMANIA LIMITED
Respondent
No. 191R of 1994
BETWEEN: DENNIS MICHAEL WELLS
Applicant
AND: BORAL TIMBER TASMANIA LIMITED
Respondent
No. 192R of 1994
BETWEEN: DAVID KEITH GILLIES
Applicant
AND: BORAL TIMBER TASMANIA LIMITED
Respondent
JUDGE: Marshall J
PLACE: Melbourne (heard in Hobart)
DATE: 14 June 1996
REASONS FOR JUDGMENT
BACKGROUND - THE PROCEEDINGS
On 21 October 1994 each applicant in these proceedings filed in the Tasmania District Registry (“the registry”) of the Court, an application pursuant to s170EA of the Industrial Relations Act 1988 (“the Act”). Each applicant sought the remedies of reinstatement and compensation in respect of what he alleged was the unlawful termination of his employment by the respondent. On 1 November 1994 District Registrar Cooper ordered that the proceedings be referred to the Australian Industrial Relations Commission (“the Commission”) for conciliation. On 18 November 1994, Vice President McIntyre certified that the Commission had been unable to settle the matters by conciliation.
The applications were heard together by Judicial Registrar Parkinson on 7, 8, 9, 20, 21, 22, 23 and 24 March 1995. The evidence occupied eight sitting days. Written submissions were filed in April 1995, the last of them on 28 April 1995. The Judicial Registrar delivered her reasons for judgment on 19 June 1995. She dismissed each application.
On 13 July 1995 the applicants filed in the registry a notice of motion in each matter seeking a review of the decision of the Judicial Registrar. On 3 August 1995, Lee J ordered that the time within which each application for review may be filed be extended to 13 July 1995. See Broomby v Boral Timber Tasmania Limited, TI 189R of 1994, Industrial Relations Court of Australia, Lee J, 3 August 1995 (as yet unreported).
The review of the exercise of power by the Judicial Registrar was heard on 14, 15, 16, 17 and 20 May 1996 in Hobart. Mr R.W. Young of counsel represented the applicants. Mr N. Green of counsel with Mr M. Chambers represented the respondents. By agreement the transcript of the proceedings before the Judicial Registrar and the exhibits tendered before her were admitted into evidence before the Court on the review. In addition, all witnesses who gave evidence before the Judicial Registrar, except two, gave further evidence before me. One extra witness who had not given evidence before the Judicial Registrar gave evidence on the review. The viva voce evidence occupied four sitting days. The final addresses occupied the last day of the hearing.
BACKGROUND - THE FACTS
THE RESPONDENT AND ITS OPERATIONS
The respondent operates a timber mill at Longreach in Northern Tasmania. About 800,000 tonnes of timber come into the mill each year. Some 600,000 tonnes are delivered by road. Road deliveries are received at the weighbridge at the entrance to the mill. Trucks are weighed at the weighbridge when they arrive. The drivers provide the weighbridge operators with paperwork which usually indicates the type of timber carried on the truck and the size of the logs. This paperwork, which is in triplicate, is available for the drivers at the weighbridge. The trucks are unloaded by a mechanical device and fed onto the log deck or into storage. The logs are fed from the log deck to a “chipper in-feed conveyor”. A “disc chipper” then reduces the logs to wood-chips which are then conveyed to a screen house. At the screen house the chips pass over screens which separate out large chips for re-chipping. Chips of acceptable size are conveyed to storage from where they are recovered by a bulldozer which pushes them into a “reclaim hopper”. The chips are then conveyed to a ship for export from Tasmania.
At the time of the termination of the employment of each applicant (i.e. 12 October 1994) the respondent engaged 32 logging contractors to provide logs for the mill. Some 17 of those contractors transported their own logs to the mill. Another 27 contractors were transport only contractors. All of these contractors were engaged on a regular basis for 46 weeks each year. The respondent employed a number of area foresters to complete all the preparatory and access work required prior to the harvest of the forest.
THE APPLICANTS
DENNIS BROOMBY
Mr Broomby commenced working at the Longreach mill in December 1980 as a timber worker employed on general duties. In February 1994 Mr Broomby was transferred to the weighbridge to work as a weighbridge attendant. He received two weeks training on the job by two weighbridge attendants who were about to take up a voluntary redundancy offer from the respondent.
Mr Broomby described his duties as a weighbridge attendant in the following way:-
“... When the truck came, the truck would come on to the weighbridge, the truck driver would get out of his truck, he’d come and put his docket, we used to have a desk in front of us, they’d quite often just put the docket on the desk. I would then go out, visually check that the truck was on the weighbridge to make sure he was on there properly because if he wasn’t on the weighbridge properly you wouldn’t have the correct weight. I would then visually check the load for rot, charcoal, bark, brands and size clarification. I would then go back inside, mark the ticket whichever size category load the load was.” (transcript page 141, 15.5.96)
The weighbridge docket contained various boxes on its left hand side, the top three of which related to log size. The relevant portion of the docket appeared as follows:
“LOG TYPE
Under 65 cm diam.
Over 65 cm diam.
Under 30 cm diam. ”
If all the logs on a particular truck were over 65 centimetres in diameter, the second box would be ticked. If all the logs were under 30 centimetres in diameter, the third box would be ticked. If all the logs were over 30 centimetres in diameter but under 65 centimetres in diameter, the first box would be ticked.
If a load was a mixed load, the docket would be marked so as to reflect the largest type of log on the load. Should the weighbridge attendants have been in doubt about the size of a log, a shovel handle was available in the weighbridge with marks on it at 30 centimetres and 65 centimetres. This provided guidance as to the appropriate classification of any load.
The lower right hand side of the docket contained, inter alia, the name of the harvesting contractor, the transport contractor and the driver’s signature. The lower left hand side of the docket contained the words “RECEIVED BY”. The weighbridge attendants signed this part of the docket, usually by the placement of an initial. It was the method by which the attendants attested to the accuracy of the information contained in the docket. The top right hand side of the docket contained details about the weight of the load. Those details were impressed into the docket by a stamping machine operated by the attendants.
Most of the time, the truck driver would mark the appropriate box for the load size prior to pulling up at the weighbridge. Occasionally an attendant may cross out the particular mark (usually a tick) and tick the appropriate box. Mr Broomby agreed with Mr Green as to the following propositions:
he knew that an important part of his job was to ensure that what was put down on the weighbridge docket reflected the load that was on board the truck that came onto the weighbridge;
he knew that the respondent looked to him to ensure accuracy;
it was a fundamental part of his job to so do; and
when a truck came to the weighbridge to be weighed and have its load checked, the weighbridge operator was “the eyes and ears” of the respondent.
DENNIS WELLS
Mr Wells commenced work at the plant in 1979. He was transferred to the weighbridge in November 1993. He had previously trained as a relief weighbridge operator and in November 1993 he received further training whilst working alongside another weighbridge attendant for two weeks.
Mr Wells testified that logging contractors had a set quota of logs which were able to be brought to the weighbridge in any one week. The weighbridge attendants maintained a weekly weighbridge quota sheet which recorded the number of loads which were available for the contractor to bring in for the remainder of any given week. His description of his method of work as an operator was largely consistent with that of Mr Broomby save that Mr Wells adopted a practice whilst on day shift of permitting the first three trucks in the yard to go through the weighbridge without checking the relevant dockets.
Mr Wells conceded that the respondent depended upon him for the accuracy of the information he initialled on the weighbridge dockets.
LEWIS COOPER
Mr Cooper was first employed at the mill in 1987 as a fitter. It was his job to maintain mobile machinery. In 1993 he sustained a back injury and was advised by his medical practitioner and physiotherapist to look for a position with lighter duties than those which he performed in his work as a fitter. In January 1994 he was transferred to the weighbridge. He received training from certain weighbridge attendants who were about to leave the employment of the respondent. He worked “side by side” with those experienced operators for about two weeks on various shifts.
Mr Cooper testified before me that he only became aware of the fact that the classification of a load of logs on the weighbridge docket governed the remuneration paid to the harvesting contractor as a result of the proceedings in Court. He gave evidence that he “presumed there was something tied up to it” but said that “I’ve never known it for a fact”. He told the Court that the purpose of ticking a particular box was - “Oh, I don’t know really, just to see what was coming in, I presume.”.
Before the Judicial Registrar, Mr Cooper was asked the following questions and gave the following answers in his examination in chief:
MR YOUNG: “You told us that sometimes you had to get the handle out in order to measure the loads when you had an argument with a driver. How often did drivers talk to you about the load size? --- A bit, yes. If it was border line minus 30s they’d always try and get you to put it through as minus 30s. You’d just say, ‘No, it’s too big, mate.’
And do you know why they wanted to try and get them through as minus 30s? --- Not really. I presume it was probably worth more to them.
Did you ever have any jokes with the drivers? --- Yes, you used to always joke with them, a few of them, yes.
Can you name some of those you had a joke? --- Mostly the Finan Hammersley blokes, they’re pretty good to get along with. I was told that - I was told that I was - something like I’d offered to load a salvage in for a carton of beer or something with Wayne Ransom, but I was probably only joking with him.
Do you remember talking to Wayne Ransom about - - -? --- Not really, no. Yes. It was sort of, ‘Oh, mate’ you’d have a bit of a joke with them. They’d be stuck in the truck all day. They’d be dying to have a talk to someone, I suppose, and we were a bit the same.” (transcript page 346, 21.3.95)
DAVID GILLIES
Mr Gillies commenced work at the mill in March 1987 as a day worker. He was transferred to the weighbridge in February 1994. He testified that when a truck came to the weighbridge he would walk to the back of the load, walk around the truck and then look at the front of the load. When the boxes on the weighbridge docket were not filled in he would tick the appropriate box. He would guess the percentage of re-growth timber on the load and place the figure on the appropriate part of the docket. He would place the docket into a stamping machine which would print the weight of the load. He would place the dockets in a pile.
When he first went to the weighbridge he was trained by operators who were about to leave the respondent under a voluntary redundancy package. He testified that he “surmised” that the logging contractors were paid more for the smaller loads because of the greater time involved in handling smaller timber. He agreed with propositions put to him on the following matters:-
if a weighbridge attendant “turned a blind eye” to logs over 30 centimetres in diameter being classified as under 30 centimetres in diameter, it would be a very serious matter justifying dismissal of the weighbridge attendant;
the respondent was dependent on him for accurate compilation of weighbridge dockets; and
weighbridge attendants had “more latitude” than other employees who worked in the office or the plant, in that they did not have a supervisor or foreman looking over their shoulders.
MR HESKETH’S PROBLEM
At the time of the termination of the employment of the applicants, Mr Hesketh was employed as the respondent’s forest manager. He had not long been employed in that position at the time of the terminations but he had some 13 years experience as an area forester with the respondent and its predecessor. Prior to that, Mr Hesketh was employed by the Forestry Commission of Tasmania for six years. During that time he was engaged in carrying out assessments of forests.
One of the logging contractors who provided logs to the respondent was Geoff McConnon. In mid-1994, Mr Hesketh had a conversation with a field officer from the Tasmanian Logging Association during which a concern about some aspects of Mr McConnon’s operations was discussed. In particular, there was a concern about the viability of his operation. A few days prior to the conversation, Mr Hesketh had visited Mr McConnon at work and noticed that Mr McConnon was not segregating his logs into appropriate size classifications. The effect of a failure to so segregate was that smaller logs, which took longer to load than larger ones, were included on loads with larger logs resulting in a price being received for the logs which reflected the larger size.
Mr Hesketh checked the figures for Mr McConnon held by the respondent which identified the number of particular loads which were referable to the various log size classifications. The result was not as Mr Hesketh expected. Mr Hesketh testified that for the financial years 1993-1994, Mr McConnon had 69% of his logs classified as under 30 centimetres in diameter. Mr Hesketh believed that either the computer had made an error or that Mr McConnon’s loads had been incorrectly classified at the weighbridge. Either way, he had a problem to solve. He soon discovered that the computer had not made an error. He immediately checked the weighbridge dockets which were referrable to Mr McConnon’s logs and discovered that a very high proportion of the loads were marked in the under 30 centimetre category. Mr Hesketh decided to investigate further to attempt to find a solution to his problem.
Another logging contractor, Mr Bowen, worked a coupe which bordered Mr McConnon’s coupe. The two coupes were separated by a road. Mr Hesketh discovered that only 10.1% of Mr Bowen’s loads were classified as under 30 centimetres in diameter in the 1993-1994 financial year. Further, Mr Hesketh conducted a stump assessment of the areas that had been logged by Mr Bowen and Mr McConnon. He was assisted in that task by three qualified foresters. The assessment was specifically designed to be a 10% sample but because of the irregular boundaries involved just over 8% of Mr McConnon’s coupe and 10% of Mr Bowen’s coupe was assessed. Mr Hesketh testified that the stump assessment showed that a very low proportion of small trees had been harvested from the two coupes and that there was a similar number of stumps by class size in each coupe. The assessment took one day on each coupe to complete.
Once it became clear to Mr Hesketh that there were at least some incorrect classifications of Mr McConnon’s loads, he told Mr Finch, one of the foresters who had helped to conduct the stump assessment. This conversation occurred on 22 July 1994. In the conversation, Mr Hesketh asked Mr Finch “not to say anything to Mr McConnon because we would need to investigate further”. Mr Finch told Mr Hesketh that he had already spoken to Mr McConnon a day or two earlier and had asked him “How come you’ve got such a high proportion of minus 30 centimetre logs?”.
Before examining the weighbridge dockets in respect of Mr McConnon’s loads, Mr Hesketh raised the problem with his superior, Mr Waining. Mr Waining advised that the matter be treated very seriously. It was the joint decision of Mr Waining and Mr Hesketh to conduct the stump assessment.
ANALYSIS OF THE WEIGHBRIDGE DOCKETS
The percentage of loads received from Mr McConnon’s logging operation which were classified as under 30 centimetres were as follows, on and from January 1994 across all weighbridge operators:-
January 44%
February 65%
March 76%
April 53%
May 88%
June 89%
1 July to 22 July 84%
22 July to 31 July 5%
August 10%
The pre-22 July 1994 figure was 73% and post 22 July 1994 figure was 9% for loads classified as under 30 centimetres in diameter.
The percentage figures for the applicants were as follows:-
Broomby Cooper Gillies Wells January N/A 18 N/A 100 February 67 46 89 90 March 93 20 100 87 April 56 0 100 83 May 88 50 83 100 June 92 75 92 100 up to 22 July 80 100 79 75 22 to 31 July 0 17 0 0 August 15 4 2 12 to 22 July
82
44
90
91
after 22 July 12 7 10 9
Mr Hesketh testified that of all the timber delivered to the mill, only 7 or 8 per cent would be in the under 30 centimetre category. Mr Waining gave evidence that less than 10% of the timber received by road at the mill would be in the under 30 centimetre category. Mr Waining was on leave until early September 1994 and upon his return he began to compile further relevant information in relation to what appeared to be an abnormality in Mr McConnon’s operations.
THE DISCIPLINARY INTERVIEWS
On 12 October 1994 the four weighbridge operators were requested to come to a meeting at work. On the evening of 11 October 1994, Mr Cooper was on night shift. At about 7.00 am, Mr Duncan, the production manager, came to the weighbridge and asked Mr Cooper to “stay back for a meeting in my office.”. When Mr Cooper reached the office he found two union delegates waiting for him. The two delegates were Mr Preece and Mr Peet. They were shortly thereafter joined by Mr Grey, a full time union official. Mr Preece and Mr Peet gave evidence before the Court. Mr Grey did not give evidence.
Mr Preece was the local shop steward on site for the Construction, Forestry Mining and Energy Union (“CFMEU”). Mr Cooper was not a member of the CFMEU. Having been a fitter, he was a member of the Australian Manufacturing Workers Union (“AMWU”). He was represented by CFMEU officials given that the other three weighbridge operators were CFMEU members and that there was no AMWU shop steward at the mill. Mr Preece testified that prior to Mr Cooper being called into the boardroom of the respondent’s offices, a short discussion occurred between the union representatives and representatives of management. The management representatives were Mr Hesketh, Mr Waining, Mr Dagger (Mr Waining’s superior) and Mr O’Dowd (an industrial relations adviser).
Prior to Mr Cooper entering the boardroom, the management representatives explained to the union representatives the allegations which were to be raised with the weighbridge attendants. Mr Dagger, in particular, told Mr Grey about the matters that would be put to each weighbridge attendant. Mr Dagger testified that he discussed the situation regarding Mr McConnon at some length. He said he told Mr Grey that he had been obliged to put the matter in the hands of the police and that a fraud had been committed by Mr McConnon. He showed Mr Grey the documentary material the respondent had in relation to the matter. This consisted of documentation that related to the loads checked by each weighbridge attendant, area maps, weighbridge dockets and a compilation of the dockets which related to Mr McConnon’s loads for the financial year 1993-1994 and for August 1994.
After the discussion between the representatives of the CFMEU and the respondent, Mr Cooper was called into the boardroom. It was put to Mr Cooper, by Mr O’Dowd, that he was in a position of trust and that he had “taken action which is equivalent to fraud in that he falsified records in regard to product coming in which resulted (sic) a loss to the employer which should not have happened.”
Mr Dagger made available to Mr Cooper the following documents:-
a compilation of the volumes of logs in various classification sizes received through the weighbridge;
a document explaining the average log sizes of logging contractors’ loads;
a stump appraisal of the Bowen and McConnon coupes.
Mr. Dagger said that he would have liked to have had someone shed some light on what was happening with the classification of Mr McConnon’s loads. He wanted to know “why it was happening and if anybody was gaining from it.”.
After the allegations made against Mr Cooper were put to him, a recess occurred in the meeting. Mr Grey and the two delegates spoke privately with Mr Cooper. Mr Cooper was urged to own up to any wrongdoing if he had engaged in any such wrongdoing. According to Mr Preece, Mr Cooper told the union representatives that:-
“... he had no knowledge of any wrongdoing by (sic) his part and he was doing his job to the best of his ability and as he had been trained.”.
Mr Cooper denied to the union representatives that he was taking bribes. The meeting then resumed in the presence of the management representatives. Mr Grey then said that:-
“... all he’s done is what, he was saying to me all he’s done is what he’s been trained to, what the others showed him to do. Near enough is fair enough. So maybe the root of the cause is where we’ve got to look for. And how long the root of the cause has been there as well.”
Mr Dagger invited Mr Cooper to explain the sudden change in the figures after 22 July 1994 and the fact that there was no such marked variation for any other contractor. Mr Cooper suggested that the variation may have related to Mr McConnon’s moving to a different coupe on 6 July 1994. However, obviously the move pre-dated the post 22 July 1994 drop off in the recording of minus 30 centimetre loads from Mr McConnon’s operation. Mr Cooper suggested that perhaps Mr McConnon split his logs to achieve loads under 30 centimetres diameter. This explanation did not satisfy management representatives. It is not surprising that that was the case. In the recess when the union representatives spoke privately to Mr Cooper, he did not raise the issue of split logs. Mr Broomby gave evidence before the Judicial Registrar that only “a tiny fraction” of under 30 centimetre diameter wood that came through the weighbridge was split. Mr Bowen testified that he did not ever see “any small split stuff” on Mr McConnon’s loads. Mr Hesketh gave evidence that 15% of loads going through the weighbridge would contain split timber and that almost none of that would be below 30 centimetres in diameter.
After Mr Cooper raised the issue of “split timber”, Mr Dagger said that the loss to the respondent was estimated at about $70,000.00 for the financial year 1993-1994. Mr Dagger then said, “as far as I’m concerned it’s fraud and the contractor and the transport contractor and the bush contractor have obviously been involved ...”. Mr Waining and Mr Dagger then referred to the fact that a Peter Brown drove for Ransom’s transport which carted for Mr McConnon. Some 90% of the relevant loads were carried on the back of trucks driven by Mr Brown. A discussion then arose about the possibility of criminal charges arising from a police investigation into the matter. Mr Waining made the point that Mr Cooper was the only one of the weighbridge assistants who wasn’t involved to begin with, but for some reason became involved late in the day “... and with one contractor only.”. A discussion then ensued about the adequacy of Mr Cooper’s training. Mr O’Dowd suggested that an alternative to summary dismissal may be the acceptance of Mr Cooper’s resignation.
To this point, the meeting with Mr Cooper had been taped. A transcript of the tape (and the tape itself) was admitted into evidence by the Judicial Registrar. Mr Cooper was asked shortly before the tape was turned off whether he wished to keep it running while he had anything further to say. Mr Cooper asked for the tape to be turned off. The transcript of it recommences with the interview of another applicant.
Mr Cooper testified, before the Judicial Registrar, that Mr Dagger held out an offer of suspension that “if you tell all, you will be suspended not dismissed”. Mr Preece and Mr Peat gave no such evidence before the Judicial Registrar.
It was not put to Mr Hesketh, Mr Waining or Mr O’Dowd before the Judicial Registrar that such an offer was made to Mr Cooper. Mr Dagger denied before the Judicial Registrar that suspension was discussed in that context. His evidence was that it was suggested by the union representatives as an alternative to dismissal in accordance with the grievance procedures of the applicable enterprise bargaining agreement - “Boral Timber Tasmania Ltd Forest Resources’ Enterprise Agreement 1993” - (“EBA”) to which further reference will be made later.
On the review, Mr Dagger gave evidence that he considered the option of suspension rather than dismissal. He was not cross-examined, on the review, on the allegation that he offered suspension to Mr Cooper as an inducement to tell all. On the review neither Mr Peet nor Mr Preece gave evidence concerning the alleged offer of suspension. It is entirely inconsistent with Mr O’Dowd’s suggestion that the respondent may accept a resignation to form the view that an offer of suspension was made. I prefer the evidence of Mr Dagger on this point to that of Mr Cooper. The only consideration of the issue of suspension arose as a result of Mr Grey’s request that the dispute resolution procedures of the EBA be invoked. I will come to the question of the EBA shortly.
Evidence as to what occurred in Mr Cooper’s interview after the tape recorder was switched off was given to the Judicial Registrar and on review by those who were present, with the exception of Mr Grey. After the tape recorder was turned off, Mr Dagger told Mr Cooper that unless he was able to provide him with a reasonable explanation for the figures relating to Mr McConnon’s operations, he would be dismissed. He was unable to provide an explanation. Mr Dagger then summarily dismissed him. Mr Grey urged that suspension occur rather than dismissal. He referred to certain provisions in the EBA, which provided for suspension in certain circumstances. The respondent declined to offer suspension. In my view it was not obliged to offer suspension under the EBA.
Clause 7 of the EBA recognises the respondent’s right to summarily dismiss an employee for misconduct (see Cl. 7.1.3.1). Clause 7.1.4.2 recognises a right in the employer to “stand down” an employee. The employee, during the stand down, is at liberty “to elect to take any annual leave entitlement or pro-rata accrual” (see Cl. 7.1.4.6). However, the stand down right is referrable to Cl. 7.1.3.2 which deals with the traditional form of stand down due to a stoppage of work beyond an employer’s control. It does not bear on the question of suspension for disciplinary reasons. Clause 24 deals with “Counselling and Disciplinary Procedures”. Clause 24.3.5 provides that:-
“In the event of misconduct incurring probable instant dismissal the employee concerned may be suspended on pay pending the outcome of the investigation into the matter.”
The sub-clause is expressed in permissive and discretionary terms, it does not oblige the respondent to suspend an employee it suspects is guilty of misconduct incurring probable instant dismissal.
Mr Cooper was given a cheque representing his accrued entitlements. The calculations which were required to work out the payment due to Mr Cooper was effected prior to the termination of his employment. Mr Dagger had informed clerical staff of the respondent on 11 October 1994 that it was possible that certain individuals may be dismissed the following day and in preparation for that contingency had requested that any such amounts be calculated before 12 October 1994. Mr Dagger retained an open mind in respect of any possible termination of employment until he was satisfied that in each case no reasonable explanation had been given.
After receiving his cheque Mr Cooper left the office building. He passed by the other three weighbridge attendants as he left and said to them “I’ve been fucking sacked”. After Mr Cooper had been summarily dismissed, Mr Dagger made a comment to the union representatives that Mr Cooper probably would have benefited only to the extent of $100.00 as a result of the “scam” with Mr McConnon. This allegation was not put to Mr Cooper at the interview but I do not believe that anything turns on it.
Mr Gillies was the next operator interviewed. As with each of the applicants, Mr Gillies was spoken to by the union representatives before entering the boardroom. Mr Grey told each applicant after Mr Cooper’s interview about the nature of the allegations which would be put to him and that it was likely that he too would be dismissed.
When Mr Gillies arrived in the boardroom the tape recorder was operating. Mr Dagger made the following statement to him:-
“We’ve got a, I’m put in a position where we’ve been checking on a particular contractor, we’ve been checking on all our contractors and McConnon is the particular contractor in question here. He has been delivering material to us that has been outside specifications. He’s, we’ve paid McConnon something around the order in the last 12 months of some 70 odd thousand dollars. In overpayments and after we went down the track of checking to see what was happening we find that this contractor is by himself in this scam. There are no other contractors outside of him that we can ascertain. He’s been having logs delivered here, they’ve been received here, and booked in here under 30 centimetres when in fact they have been greater than and he’s been paid accordingly. Now we’ve gone back over the past performance of the weighbridge, our employees, and what’s happened, and in your case we have come along to a position where we inadvertently told McConnon on the 22nd July that there was something wrong with his loads - on that day it stopped and the loads that were brought in here under 30 cms went from 60 sorry from 90 percent to 10 percent. And the loads that he was bringing in before on the minus 65 were 10 percent. So it reversed on the day and over the next period. It’s exactly where we expected it to be around the 10% less than 30 cms.
Now we’ve gone back over all the records, all the weighbridge dockets as they have come in and had a look at them and they’ve be (sic) signed in by yourself and this just relates to yourself. We’ve gone down the track of going to the bush and identifying the bushes that they have been in, having stump appraisals done on the bush. In one case there was McConnon and another contractor working side by side and the two contractors they were in conquerable (sic) bushes the only difference in the bush was a road there wasn’t any distance between it. The, one side of the road was getting the 9% minus 30s and the other side of the road was getting 90% minus 30s. Now I’ve got you in here today because I would like an explanation as to why that should have changed at that particular point in time. What was happening at the weighbridge with this particular contractor and what he was doing and what we were doing in regards to booking his log sizes into the yard. Now I suppose I’d like some explanation as to what actually happened.”
Mr Gillies requested that the tape recorder be turned off. He was given a copy of the relevant weighbridge receipts and a document relating to the “McConnon loads” checked in by him. He was also given a copy of the stump assessment of the McConnon and Bowen coupes. He was asked for an explanation by Mr Dagger. He was unable to provide an explanation. He was summarily dismissed. A request by the union representatives for suspension pending an investigation was denied. Mr Gillies was given a cheque and escorted from the premises.
Mr Wells was the next operator to be interviewed. Prior to the interview, Mr Grey spoke to him. Mr Grey said, “What have you blokes been up to?” He then outlined the nature of the allegations Mr Wells was about to face. He then said “Well, if you come clean now it will go easier on you” and that “You, being the longest member - longest weighbridge attendant up there look like facing a gaol sentence”. Mr Wells was then called into the boardroom. The tape was running when he arrived, it records Mr Dagger saying the following:-
“... Just to give you a bit of background for a kick off Denis (sic) we’ve done a fairly extensive investigation into a fraud we’ve uncovered with one particular contractor, being McConnon. Now this particular contractor has obviously been in collusion with the truck driver that drove his material to this site and with people on this site. Need that collusion to get it through the gate.
We’ve come to a position where we’ve informed the police and it is a police matter and we’ve also had advice from our company solicitors who will be taking appropriate action down the track to recover the monies that we’ve lost. Over the last twelve months it’s in the order of about seventy thousand odd dollars for the last twelve month period only. The situation with the weighbridge is that we’ve identified after extensive checking and going back through the records, we’ve identified loads that have come through from that particular contractor and that particular contractor only have been marked in at under 30 minus 30 cms as opposed to being marked in a range between minus 65 and plus 65 possibly. We’ve got a situation where we’ve done stump appraisals on the blocks that McConnon was on and a contractor right next door to him and they match up well, if anything we would have thought that the other contractor may have some, may have some of the smaller material but it wasn’t coming up that way. We’ve got a situation where we’ve followed this through since January 1994 this year and on the 22nd of July this year the contractor was inadvertently told at the dump site that, he wasn’t actually told, he was asked the question, why did he have so many minus 30cm logs coming through the operation and on the day after that and from then on out there has been a total reversal of what his 30cm minus 65cm class rate would have been.
Now, in your case prior to that contractor being notified you were marking loads in at about 91% were less than 30cms, and about 6%, sorry 9% were less than 65cms. And then after we let the contractor know there was something wrong, it went down to 9% under 30cms. so (sic) it went from 91% to 9% and it went up to 77% for minus 65.
Now, there was no other change carried out by any other contractor through that period of time. We’ve got no reason to believe that there were loads that were marked in incorrectly during that period of time in parallel with this particular contractor. So what we’ve done is we’ve had a look at the parallel rates that came in. We would have expected less than 10% over that period of time to come in and in fact this one here showed us exactly what was happening when we came to the total volumes after the 22nd. It did actually put it back to there 9 % where we expected it to be. What I’m asking from you at this point in time and you can have this turned off now if you want to is that is there an explanation as to why we should have had a variation in the load classed classifications, the load size classifications, for this contractor and this contractor only over that period of time.”
Mr Wells is recorded as saying in reply:-
“I can’t answer your question I am afraid. All I do is read them as I see them.”
Mr Grey then asked Mr Wells if he wanted “that tape off”. Mr Wells replied that he did want it off. Mr Wells was unable to provide any explanation to Mr Dagger after the tape was turned off. Mr Wells was summarily dismissed. A claim by Mr Grey for Mr Wells to be suspended was rejected by Mr Dagger. Mr Wells was given his cheque and escorted from the premises.
Mr Broomby was the last weighbridge operator to be interviewed. He was spoken to beforehand by the union representatives. He testified that:-
“I’m not sure who spoke but they sort of roughly informed me of what was going on because the three previous weighbridge operators had already been in with management and obviously been dismissed.”
When Mr Broomby entered the boardroom the tape recorder was on. Mr Dagger made the following remarks:-
“We’ve, what we’ve done is we’ve been doing some investigating in regards to logs from a particular contractor and this contractor, McConnon, has been supplying logs into here from his logging operations and the percentage of - 30cm logs is way out of proportion to what would normally happen from that, or should have happened from that logging operation. We see that the logging operator, transport operator and employees of this company have allowed logs to be brought in here, marked as an undersized log when they should have been a different class classification and the contractor has been paid for them. Now what we’ve got is a situation where (where’s Mike gone, is he uh. ((Somebody else - he’s gone to make a phone call, will we wait until he comes back?) Yes, I think we might wait until he comes back because I’d like to make sure that he is up to speed with this.)
Just to give you a bit more background, I’ve told Mike before we’ve also put this in the hands of the police and our solicitors are looking to take civil action to recover the monies that have been outstanding have been overpaid. We’re talking about 70,000 dollars approximately 70,000 dollars in the last twelve months, that have been misappropriated. So we’ve got to a point where after extensive investigation internally and log assessments, we’ve actually done stump appraisals, been to the bush and done appraisals on blocks, blocks even the posing blocks there was one particular one McConnon worked on and the block next door which was only segregated by a road was identical bush type, it supplied around the 10.1% I think. The figure of minus 30 logs off it and the coupe next door supplied us with 76%.
...
So the variation in just in those two coupes was quite dramatic. Some 60% difference and the bush type doesn’t indicate that was the case and the stump appraisal certainly doesn’t indicate that was the case.”
After referring to a printout of McConnon loads checked in by Mr Broomby, Mr Dagger then said:-
“When we get down to the 22nd of the 7th that’s the 22nd July we had a situation where inadvertently one of our Foresters let the, asked the contractor, how come he had so many minus 30 cm logs coming into the site. There was no explanation, he couldn’t understand why but from there out the percentage changed dramatically from the 30cm, minus 30 cm to minus 60 cm which is just about a total reversal. We didn’t change the coupe and we didn’t change the area and there was over that given period there was very very little change in the operation. I suppose what I’m asking of you Denis is what’s the, have you got any explanation as to why this should be so.
Mr Broomby is recorded as replying:-
“Not really. Like you say there is a big difference. But for what reason I don’t really know.”
Mr Broomby then asked for the tape to be turned off. He was given the stump assessment, copies of weighbridge dockets and a compilation of average monthly McConnon loads checked in by him. He was not able to offer any explanation for the high number of minus 30 centimetre loads. He was then summarily dismissed by Mr Dagger, given his cheque and escorted from the premises. A request for suspension in lieu of termination by Mr Grey was denied by Mr Dagger.
VALID REASON
Mr Green submitted that the employment of each of the applicants had been terminated for a valid reason. He submitted that the evidence showed that “the applicants were guilty of serious misconduct constituted by suffering the McConnon loads to be recorded falsely thereby exposing their employer to very substantial financial detriment.”. The valid reason was submitted to be “connected with their capacity and conduct, or both, based on the operational requirements of the respondent’s undertaking.”. Mr Young submitted that whether or not there was a valid reason for the terminations raises the question of fraud. He submitted that “if there was no fraud then there is no valid reason for the terminations”.
I do not accept that for the respondent to have had a valid reason for the terminations, it needs to show that the applicants were guilty of fraud. All the respondent needs to show is that it had “sound, defensible or well founded” reasons for the terminations as distinct from “capricious, fanciful, spiteful or prejudiced” reasons. See Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
In my view the respondent had sound, defensible and well founded reasons for the termination of the employment of each applicant. Those reasons were connected with the conduct of the applicants. They were related to the applicants favourable treatment of loads of timber coming into the weighbridge from Mr McConnon’s operations.
The evidence supports the view contended for by Mr Green that there is no reasonable explanation for the fact that until 22 July 1995, starting at a time earlier in 1995, Mr McConnon received favourable treatment from the applicants in respect of his loads.
In coming to that view, I was particularly impressed by the evidence of Mr Bowen, a person described by Mr Green as “a flower of Tasmanian manhood”. Mr Bowen gave evidence to following effect:-
he is an employee of his family company, D.K. Bowen Pty Ltd;
D.K. Bowen Pty Ltd has a logging operation;
he logged a coupe adjoining a coupe logged by Mr McConnon;
the state of the timber in each coupe was very similar;
“salvage”, being an expression used to describe timber which was less than 30 centimetres in diameter was worth $7 a tonne more to the logging contractor than timber which was more than 30 but less than 65 centimetres in diameter;
it is not financially worthwhile to split logs so that they become less than 30 centimetres in diameter when split, as:-
“it would cost more to do it than what there would be to send it as minus 65”
he segregated his logs so that all “minus 30 logs were placed in a pile” until he had sufficient for a truckload;
he saw split logs on Mr McConnon’s coupe but “no small split stuff”;
he had a conversation with Mr Brown, who drove the truck that carried most of Mr McConnon’s loads, about one particular load which Mr Brown claimed he had “got through” as “salvage”, when it was a load which should not have been checked through the weighbridge as “minus 30”;
Mr Brown’s nickname was “Truthful”;
Mr Cooper approached Mr Bowen and asked “was it salvage what Truthful had”. Mr Bowen replied “No way”. Mr Cooper then said “Well, we won’t be calling you as a witness”.
Mr Cooper told the Judicial Registrar that he was unable to contradict Mr Bowen’s account of his discussion with him regarding Mr Brown. Despite giving that evidence before the Judicial Registrar, on the review Mr Cooper denied ever using the nickname “Truthful” when referring to Mr Brown. He ultimately conceded, on the review, that he may have said the words attributed to him and referred to above from Mr Bowen’s evidence.
I was similarly unimpressed by the evidence of Mr Cooper in various other respects which I shall shortly outline below. Additionally, like each of the other applicants, his demeanour was not convincing. As the credibility of each applicant was critical in these proceedings, I very carefully observed each one in the giving of his evidence. The applicants did not impress me as witnesses of the truth.
Mr Cooper’s attempt to resolve the discrepancy in the McConnon loads, as against other contractors and the post 22 July 1995 change in treatment of the McConnon loads, was as follows:-
he was unaware before sometime in the period 17 July to 23 July 1994 that split wood was not to be accepted as “minus 30”;
he was unaware that there was a connection between the box that was ticked on the weighbridge docket and the money received by a logging contractor;
he merely “weighed them in and categorised them”;
he put the high level of “minus 30” McConnon deliveries down to “splits” but conceded that “minus 30s” consisted of only 10% of what came into the weighbridge and that only 15% of that consisted of splits.
I find the evidence about “splits” totally unconvincing. On the percentage figures accepted by Mr Cooper, split logs cannot possibly have been the reason for the high percentage of “minus 30” loads coming from Mr McConnon’s operation on vehicles driven by Mr Brown from February 1994 to 22 July 1994. It therefore matters not when Mr Cooper became aware that split wood was not to be accepted as “minus 30”. However, I accept the evidence of Mr Hesketh that it was well known to weighbridge operators at all material times that to be classified as “minus 30”, every log on the load must be less than 30 centimetres at the butt end and logs must not be split to reduce the diameter below 30 centimetres. I also accept Mr Hesketh’s evidence that a memorandum to weighbridge operators from Mr Waining, dated 8 August 1994, to that effect reinforced what the weighbridge operators already knew.
I am extremely sceptical about Mr Cooper’s professed ignorance of the purpose of ticking a particular box on the weighbridge docket. To me, it was no more than an unconvincing attempt to appear ignorant about the potential for financial gain to accrue to a logging contractor flowing from an incorrect classification of a load by a weighbridge operator.
In the circumstances, it is clear that the respondent had a valid reason to terminate Mr Cooper’s employment. Mr Young conceded that, should the Court find that there was a valid reason for the termination of the employment of any applicant, he was not in a position to contend that the termination was otherwise harsh, unjust or unreasonable. Consequently, no breach of s170DE of the Act is made out in respect of Mr Cooper.
Mr Gillies also testified that he wasn’t aware that “minus 30s” could not be “split”. He said that he only became aware of this fact after receiving Mr Waining’s memorandum to that effect on 8 August 1994. His view was that that was why the figures for the McConnon loads changed at about that time. However, the reversal in the recording of high “minus 30” loads from Mr McConnon started on 22 July 1994. This readily exposes the “archilles heel” in Mr Gillies’ unconvincing attempt to account for the high number of “minus 30” loads prior to late July 1994.
Mr Gillies’ answer to the problem was that he had “marked them as he saw them” and that “I’d done the job as I was trained”. I have no doubt that both statements were correct for all loads other than those coming from Mr McConnon’s operation until 22 July 1994 when Mr Finch discussed the matter with Mr McConnon. Prior to then, I believe that Mr Gillies deliberately let McConnon loads through the weighbridge in circumstances where the vast majority of those loads were permitted to be marked as “minus 30” whereas in fact they were not of that classification. Mr Gillies thereby breached the trust that the respondent had placed in him to be its eyes and ears at the weighbridge. It had a valid reason to terminate his employment. The termination of his employment was not harsh, unjust or unreasonable.
Mr Wells’ evidence was that he merely ticked what he saw coming over the weighbridge on the weighbridge dockets. Before the Judicial Registrar he said that Mr McConnon was one of the contractors who was bringing in reasonably small logs all the time but that he did not notice a high incidence of “minus 30” loads from Mr Brown. This evidence is inherently inconsistent as Mr Brown drove 90% of the relevant McConnon deliveries.
Before the Court on the review he said that “Peter Brown brought in split material” when under cross examination. However, in his evidence in chief he said that he “couldn’t picture any one contractor”. He said he “imagined” that “minus 30” logs attracted a higher rate for the logging contractor. His reluctance to express his knowledge on this issue, it appears, had the same source as Mr Cooper’s identical reluctance referred to above.
Mr Wells also said before the Court on review that he raised the question of “splits” at the interview of 12 October 1994. There was no evidence before the Judicial Registrar that he did so, nor was it suggested to the respondent’s relevant witnesses by Mr Young that Mr Wells had raised that issue on 12 October 1994.
Mr Broomby was similarly coy about his knowledge of the financial consequences to a logging contractor about a load being marked as “minus 30” when he gave his evidence before the Judicial Registrar. When pressed in cross-examination, he said that he “possibly” knew that before he started as a weighbridge attendant. Despite that, he told the Court on the review that he “didn’t know” that the minus 30 logs attracted a higher rate than larger logs when he started his duties at the weighbridge. Although he subsequently admitted that “common sense might tell that they would.”.
On the issue regarding whether the smaller logs were more valuable to a contractor, he said that he “just probably presumed (it) more than anything”. His position not unlike the other operators was that “I marked the tickets as I saw the loads to the best of my ability”.
He raised the issue of “split timber” like the other applicants as a possible explanation for the discrepancy in the McConnon loads. He attributed the 22 July 1994 change to a presumption “that he stopped splitting his smaller material”. He relied upon the 8 August 1994 memorandum for the change in recording of high levels of “minus 30” logs from the McConnon operation. He was unable to account for the period from 22 July to 8 August 1994. I reject his attempts to justify what was obviously an abnormal situation regarding the McConnon loads. I accept Mr Green’s submissions that like the other applicants, he deliberately set out to mislead the respondent and that he has continued the deception before the Court. The respondent had a valid reason to terminate his employment. The termination of his employment was not harsh, unjust or unreasonable.
I reject any suggestion that the bizarre situation regarding the McConnon loads resulted from a lack of adequate training. The training of the applicants appeared to equip them to properly classify all loads other than most of those coming from Mr McConnon’s operation. Mr Waining gave evidence that Mr Grey said to him during one of the interviews that “on the face of it, it didn’t look good but maybe the explanation was that these fellows hadn’t been trained properly”.
Mr Waining saw no validity in that point. He said that:-
“... I asked the administration staff to extract from the files for the whole of April and the whole of May 1994, those dockets where the size had been altered and those figures indicated to me that there were sufficient evidence during that two-month period that these weighbridge operators knew what their task was and were performing it.” (transcript pp 546-547 23.3.95)
I am convinced that each applicant knowingly and wrongfully marked weighbridge dockets so as to advantage Mr McConnon. There is no evidence that any applicant gained financially from so doing. There is evidence, however, that the applicants’ breach of trust resulted in Mr McConnon wrongly obtaining financial advantage from the respondent.
SECTION 170DC
Mr Young submitted that s170DC of the Act had been breached in respect of each of the applicants. I see no merit in this submission. Section 170DC of the Act provides as follows:-
“170DC An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:
(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b)the employer could not reasonably be expected to give the employee that opportunity.”
Each applicant in this case was appraised of the allegations raised against him by the union representatives prior to his interview with management and in the interview itself. Each applicant was asked for an explanation. Each applicant had recourse to union representation. No applicant or union representative on his behalf requested an adjournment or further time to consider the allegations and the supporting documentary material. I reject the submission that there was an inadequate opportunity to respond to the allegations. The response in each case, other than Mr Cooper (who raised “splits”), was that there was no explanation. With the opportunity of having many months to consider the material relied upon by the respondent, there still has been no convincing explanation proffered by the applicants to the allegations raised against them. Mr Young conceded that all s170DC of the Act requires is that the substance of the relevant allegations be put to an employee and an opportunity be provided for a response to the allegations. It is, therefore, unnecessary for every tangentially relevant document to be placed before the employee prior to the termination. However, there may be some cases where it would not be fair to place employees in a position of having to grapple with a large amount of documentary material in circumstances where a request is made for an adjournment of the interview to provide time to peruse and examine the material. Compare Walker v McLeod (1984) 7 IR 94. Such circumstances did not relevantly obtain here.
I reject the submission of Mr Young that the relevant allegations were not clearly put to the applicant. The quotations from the tapes of the interviews referred to above and oral evidence before the Court suggest the contrary.
Mr Young contended that the relief operators also allowed a high proportion of “minus 30” loads from Mr McConnon’s operations through the weighbridge, yet not one of them had his employment terminated. Merely because an employer may have a valid reason to dismiss an employee but chose not to do so, has no bearing on whether its termination of employment of another employee is contrary to the Act.
In the circumstances of this case I am satisfied that the applicants were well aware of the allegations raised against them. I am further satisfied that they had a real opportunity to defend themselves against those allegations. I find that there has been no breach of s170DC of the Act by the respondent in respect of any of the applicants.
ORDERS
The order of the Court in each matter is that the application be dismissed.
I certify that this and the preceding 42 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date: 14 June 1996
Counsel for the Applicant: R.W. Young
Solicitor for the Applicants: Jennings Elliott
Counsel for the Respondent: N. Green with M. Chambers
Solicitor for the Respondent: Shields Heritage
Date of hearings: 14, 15, 16, 17 & 20 May 1996
Date of judgment: 14 June 1996
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