Broughill v Henkel Australia Pty Ltd
[1996] IRCA 367
•13 August 1996
DECISION NO: 367/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - MISCONDUCT - whether admission of cheating in employer funded training program conducted by a TAFE College a sound, defensible or well-founded reason for termination - PROCEDURAL FAIRNESS - whether employer acted unfairly in not informing the applicant of a further allegation made by another employee concerning the cheating episode - whether the employer acted unfairly in not investigating this further allegation where it did not rely on the allegation as a basis for terminating the applicant’s employment - the obligation generally cast on an employer to act reasonably in conducting an investigation of all matters raised
Industrial Relations Act 1988 ss.170DC, 170DE(1), 170DE(2)
CASES:Schaale v Hoechst Australia Ltd (1993) 47 IR 249
Nicolson v Heaven & Earth Gallery Pty Ltd, 1 IRCR 199
Cooke v The Royal Melbourne Hospital, (unreported), Millane JR, No. VI 2189 of 1995, 2 August 1995
Selvachandran v Peteron Plastics Pty Ltd (1995-96) 62 IR 371
Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66
MICHAEL COLIN BROUGHILL - v - HENKEL AUSTRALIA PTY LTD
No. VI 1176 of 1996
Before: Judicial Registrar Millane
Place: Melbourne
Date: 13 August 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1176 of 1996
B E T W E E N :
MICHAEL COLIN BROUGHILL
Applicant
A N D
HENKEL AUSTRALIA PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 13 August 1996
THE COURT ORDERS THAT:
The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1176 of 1996
B E T W E E N :
MICHAEL COLIN BROUGHILL
Applicant
A N D
HENKEL AUSTRALIA PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 13 August 1996
REASONS FOR JUDGMENT
The applicant brings this action pursuant to Division III Part VIA of the Industrial Relations Act 1988 (the Act) alleging that the termination of his employment by the respondent on 22 January 1996 was unlawful.
The respondent concedes that it summarily terminated the applicant’s employment on 22 January 1996, such employment having been held by him since at least 1988. It defends its action in terminating the applicant’s employment as a plant operator by alleging that such action was justified by the admission the applicant made that he had cheated when he copied another employee’s answers to an employer funded training program module run by the Holmesglen Institute College of TAFE (Holmesglen). Further, the respondent says that the applicant lied in September 1995 when he then denied that he had been involved in a cheating arrangement with the same employee. It is alleged by the respondent, and this is specifically denied by the applicant, that at a meeting in September 1995 David Neil Lambert (Lambert), the respondent’s Australian manufacturing manager for the last 21 years, warned the applicant that if he were caught cheating in this course he would be dismissed. At that time the respondent conducted an enquiry into an allegation of cheating against the applicant and one of his colleagues, Carlos Quaremba (Quaremba). Faced with denials from both men, it had not been able to substantiate the allegation and then resorted to giving what it believed was an explicit warning.
Apart from denying any explicit warning at the September 1995 meeting, the applicant in the course of the hearing also pointed to the voluntary nature of the course as being a matter he relied on presumably at least on the question of whether the termination was harsh, unjust or unreasonable.
WITNESSES
The applicant gave evidence on his own behalf. In defending the proceeding the respondent called six witnesses who included Lambert and Quaremba. In addition the respondent called Adrian Miles Worswick (Worswick), the respondent’s production manager for some 10 years and the holder of a Bachelor of Science Degree with Honours; John William McCall (McCall), the respondent’s leading hand supervisor since mid 1995 who is also the National Union of Workers union delegate for the sixteen employees employed by the respondent; and Nick Katrakazos, who is known as and referred to as Katra (Katra). Katra is a weekend college academic program co-ordinator and teacher with Holmesglen. His formal qualifications include a Bachelor of Science in Chemical Engineering and a Diploma of Education. Katra was at the relevant time the lecturer attending the respondent’s premises to instruct the respondent’s staff and assist them in their assignment work as well as correct that work.
BACKGROUND
The respondent carried the initial burden of proof and Worswick was the first witness called to give evidence. He explained to the Court that the respondent’s primary business involves it in the blending of zinc phosphate solutions used to give sheet steel a corrosion preventative coating. This product is then used by the likes of John Lysaght and BHP Steel in roofing materials as well as by the four major automative companies manufacturing in Australia. In its business the respondent produces some 400 blended chemical products and employs approximately 16 employees which number includes the process workers, generally described as plant operators in the job description (see Exhibit R1), and despatch personnel as well as a truck driver. The respondent runs a unionised work site with the employees being members of the National Union of Workers and employed under the Manufacturing Chemists Award 1993 (Exhibit R16).
With the handling and blending of chemical raw materials which pose a hazard to worker safety, the respondent is subject to stringent safety requirements in the workplace and this is reflected in the job description signed by the applicant on 12 October 1994 (Exhibit R1):
“POSITION: PLANT OPERATOR
REPORTING TO: PRODUCTION SUPERVISOR1. PRIMARY FUNCTION
To operate plant equipment so that maximum efficiency and safety is
achieved.2. KEY FUNCTIONS
1. Ensure all manufacturing procedures are adhered to when operating
plant equipment.2. Ensure all batch information is correctly recorded.
3. Liaise with Supervisor on equipment breakdowns.
4. Ensure that safety guidelines are ahered (sic) to when operating plant
equipment.5. Other duties as directed by Production Supervisor.
3. SPECIFIC QUALITY RESPONSIBILITIES:
Initiate action to prevent occurrence of product nonconformity.”
It appears that originally the applicant was employed by the entity Parker Chemical Company Pty Ltd from January 1988. However, that business was purchased by the German based respondent in about 1988 with the applicant continuing in his employment with the new entity.
It would be fair to say that the respondent’s evidence that it placed considerable emphasis on employee training was not challenged. Its training program was implemented from the early 1990’s when the company spent some 10% of its factory payroll on training programs. That outlay diminished and remains level at 7% of its outlay as at the date of hearing. Not surprising, this emphasis on training serves both employer and employees’ interests, as well as being directed to compliance with specific workplace safety requirements.
From the employer’s point of view one important aspect of its concern with ongoing training is the need for it to comply with and be accredited with ISO 9002:1994 Quality systems - Model for Quality Assurance in Production, Installation and Servicing (see Exhibit R2). This accreditation is vital to the respondent’s business relationship with other industries such as the automative industry which, according to the respondent, would not deal with the respondent if it did not carry accreditation as a quality endorsed company (see generally Exhibits R2, R3 and R4).
Worswick informed the Court that the company training program is an integral part of the accreditation system because the company is required to have a plan for the training of all its staff. This means that each year in approximately August the company speaks to its employees about training they have already undertaken and that which they propose to do in the forthcoming year. In the applicant’s case his training record (Exhibit R5) shows a long history of various training programs engaged in by him from 1989 through to 1996.
In about 1992 the respondent was approached by the Victorian and Allied Industries Training Board, an employer group, then looking for companies to run a pilot scheme for developing a nationally recognised chemical operators certificate course. This contemplated the employees being involved in training sessions for some six hours per week over a forty week period each year. The respondent became interested in the course. One of the reasons for that interest was the development of Toyota’s plant at Altona because the training and accreditation program is advantageous to the respondent’s continuing relationship as a supplier to that company and other companies (see Exhibit R4).
As a preliminary matter the respondent conducted a needs analysis of each employee which determined the levels of their literacy and numeracy skills. The results of this testing led to an in-house numeracy and literacy program to assist those who needed to reach a basic level in order to participate, if they chose to, in the chemical operators course developed by Holmesglen. So that for the first year of the course in 1994, the college developed one year’s worth of work modules for the participants who had achieved a basic level of numeracy and literacy.
The respondent determined to create incentives for its employees to participate in the training offered and, again, in doing this, sought to establish mutual benefits for it and its employees. The course was then a voluntary one for existing employees but is now a requirement for those commencing their employment with the company. Twelve of the sixteen employees in 1994 commenced the course including the applicant, McCall and Quaremba. Initially, the course was broken up into two working blocks so that on Tuesday mornings the tutor from the college conducted lectures and tutorials on the modules for three hours. For a further three hours on Thursdays the employees had the opportunity to complete project work in company time. For the eight modules offered within the first year the employees were given an $85 monetary incentive per completed module. At the end of the year, if they completed the course within the prescribed time, their nett annual pay was increased by $1,000. In addition to these incentives the company also paid the Holmesglen registration fees of $160 per candidate. The first course was conducted during 1994 and every one of the employees who undertook it, including the applicant, successfully completed the course. The applicant’s certificate for that year was produced to the Court (Exhibit R6) showing that he received a State Training Board Accredited Qualification from Holmesglen for an Operative Certificate in Chemical Plant Skills.
On the successful completion of the course in 1994 the respondent reviewed the course and, whilst acknowledging the benefits to all, noted that the loss of six hours’ work per week for each employee amounting to one sixth of its production time, was taking its toll on the company. Accordingly, in consultation with the union and the employees it was decided to reduce the working hours spent on the course to three hours of lectures per week on Thursday mornings with a further three hours to be committed by the employees in their own time. The incentive for this change was that if the employee completed the course modules within the year the company agreed to pay the employee for the three hours worked in the employee’s own time at time and a half. The agreement was reduced to writing and is entitled “Agreement between Henkel Australia Pty. Limited (Metal Chemicals Division) and its employees who are members of the National Union of Workers, Victorian (Distribution and Marketing) Branch, 1st July, 1995” (Exhibit R8). Appendix 2 of the agreement sets out the following training incentive scheme and in so doing shows the generous financial benefits directed towards employees who successfully undertake the yearly modules:
“1. All employees who fulfil the entry requirements (completed Operative Certificate in Chemical Plant Skills) shall be eligible to undergo training for the Certificate in Chemical Industries Operations.
2. The course involves eight standard modules, each of approximately 40 hours duration and comprising four standard core modules selected from process, workplace or elective modules. The course is designed to be completed within a year, but because of the flexible mode of delivery, may in fact take longer. To achieve a satisfactory time frame for completion of the course, it will be necessary to complete at least six hours of course work per week.
3. Training is to be delivered ‘in-house’ by a company trainer through a flexible learning training programme and will be facilitated by the Holmesglen College of TAFE. Assessment and credit for each module will be awarded by the Holmesglen College of TAFE.
4. The six hours of course work per week will typically be achieved by employees attending a paid three hour training session from 7.30 - 10.30a.m. on Thursday, working independently until the normal start time of the TAFE tutor and the other three hours in the employees own time at home.
5. Time devoted to the Thursday morning training session will be paid for at normal rates of pay.
6. On successful and timely completion of the course and on being awarded the Certificate in Chemical Industries Operations by the Holmesglen College of TAFE, an employee will receive a ‘once off’ bonus equivalent to 60 hours ordinary pay and will receive a wage increase of $1,000 per annum.
This wage increase shall be incorporated into the Wages Schedule under Appendix 1 of the Agreement.
7. Continuance in the training programme will be subject to review, particularly in regard to attendance, effort made in completing the course work and ultimately, the degree of success achieved in completing the modules.”
It was contended by Worswick and Katra that the applicant, particularly from mid 1995 onwards, was conspicuously absent from the lecture classes conducted by Katra. Indeed, Worswick gave evidence that he saw the applicant and others in the lunch room on occasions and on one occasion questioned the applicant on why he was not attending the lectures. Whilst the applicant steadfastly denied not working and sought to explain his absence from the lectures over the period by saying he and others found it quieter to work in the lunch room, I am satisfied that the absences as well as the submission of his last two modules on the last day for qualifying for the incentive payments on 21 December 1995, taken with the admission that he copied a colleague’s answers to complete those modules, make it more likely than not that he failed to do the work necessary to successfully complete the modules and took the easy option of copying someone else’s answers rather than learn the work himself. My conclusion on this matter is reinforced by the evidence indicating that in copying Quaremba’s answers to the module questions, the applicant mindlessly repeated the errors made by Quaremba as well as transcribing commentary notes made by Katra in the margin of Quaremba’s books on different occasions. Indeed, it was the existence of these matters which caught Katra’s attention when he came to correct the applicant’s books after 21 December 1995, having already corrected and returned Quaremba’s books some months earlier. Moreover it is clear that in the relevant period the applicant sought no assistance from Katra or Worswick in completing the modules in circumstances where it was agreed that the work involved fairly complex chemical data, equations and formulae which it was unlikely that the applicant could complete without some proper tuition or assistance.
Having observed the applicant’s diminishing interest in participating in the course, the turning point came in September when another employee, Ken Evans (Evans), who it was said was having difficulty with the course, informed McCall that the applicant had offered him answers to the module questions in return for payment. Because of his concern that “... people were trading in the school work ...” he informed Worswick of this allegation and this led to a meeting being arranged at Lambert’s office attended by Lambert, Worswick, McCall, Quaremba and the applicant. Evans was invited into the meeting after the allegations had been put to both the applicant and Quaremba. It seems that the understanding at this meeting was that Quaremba was selling his material to the applicant who was attempting to defray the cost by on-selling to Evans. When the applicant, after denying any impropriety, suggested to Evans at the meeting that there had been a misunderstanding Evans agreed that there may have been one. This led to the giving of a warning only because the respondent did not then have direct evidence of cheating.
Lambert, Worswick, McCall and Quaremba all recall Lambert not only referring to the importance of the course to the company’s accreditation scheme and the businesses it supplies, but giving the two men an explicit warning, the effect of which was that if they were caught cheating in the course they would be sacked or dismissed. Whilst there was some divergence in the evidence of the respondent’s witnesses as to the precise words used in the warning, they were all adamant that an explicit warning was given to the effect alleged by the respondent.
The applicant’s contention is that the warning made no explicit reference to any sacking or dismissal. He recalled being told that “... this sort of behaviour would not be tolerated and you would be punished accordingly ...”. He claims to have interpreted this statement as meaning that he would be “... kicked out of TAFE if I was caught doing it ...”. He did not, he said, believe the statement referred to ‘his job’.
What the applicant asked the Court to accept was that because of the voluntary nature of the course undertaken the course was not part of his contractual obligation to the respondent. If there was any cheating then any punishment, so the applicant argued, should have been associated with the voluntary course and his removal from the course.
The distinction attempted to be made is a difficult one to sustain given the clear relevance of the course, once undertaken, to the employee’s work duties, the effect on the hours worked and the training and monetary incentives given by the employer to each employee over a period of some years. Because of these matters I am satisfied that once an employee embarked on the course, whilst the employee had the option of withdrawing from the course, if the employee remained in the course he then assumed contractual obligations to his employer in respect to his involvement in that course and those obligations included an obligation of good faith. In addition, in my view there were further obligations not to act dishonestly in claiming and receiving the training incentives as well as an obligation not to act in such a way as to prejudice the employer’s business interests by conduct that undermined the standing of the course. The applicant agreed that he understood the importance of the course to the employer’s accreditation program and thereby acknowledged the detriment the employer could suffer if the credibility of the course was undermined by cheating. This was quite apart from any relationship with and obligation to Holmesglen assumed by the applicant as an enrolled candidate, who could be expelled from the course for cheating.
After hearing all the evidence I was left with some real doubts as to the credibility and the plausibility of the evidence given by the applicant on many of the matters leading up to the termination of his employment.
In 1988 the applicant received a written warning from his employer. This was because after a number of verbal warnings he failed to wear company supplied safety equipment (Exhibit A1). The applicant relied on this written warning to suggest that if the company had given him a warning as it alleged in September 1995 (which warning he steadfastly denies), it would have done so in writing. The Court was asked to infer from this that there was in fact no warning associated with his employment other than the warning he conceded in relation to the course.
Whilst it is always wise for employers to reduce warnings to writing, the fact that this is not always done or is done some times and not at other times, is not in this case a sufficient basis for inferring that it is unlikely that the respondent gave the verbal warning it and its witnesses attest to.
What I found interesting is the applicant’s evidence concerning the written warning received by him in 1988; in that he acknowledged the warning was given in connection with his failure to comply with the respondent’s safety requirements but at the same time expressed the view that he then thought “... it was fairly trivial ...”. This comment was made in the applicant’s evidence-in-chief and provides some insight into his attitude to warnings received whether they were written or verbal. Insofar as there was any verbal warning given on his version of the events in September 1995, the applicant somewhat selectively chose to interpret that warning as only relating to the course of study he was involved in and not his employment.
In giving his evidence the applicant made reference to numerous matters that should have been put to the respondent’s witnesses but were not. Because of this I have ignored those matters raised where they conflict with or seek to dispute evidence given by the respondent’s witnesses.
In attempting to explain his denial of the allegations of cheating put to him in September 1995, the applicant told the Court that he was justified in his denial because at the time he was asked, although he had some arrangement with Quaremba, he had not at that stage actually received or copied any work from Quaremba. This matter was not put to Quaremba whose evidence was that at the beginning of 1995 he and the applicant, who was having difficulty with the course, agreed that the applicant would pay Quaremba if Quaremba rewrote his answers for the applicant to copy and submit them as his own work. The payment agreed on was $50.00 for each module and $20.00 for each assessment. Quaremba claims to have received the sum of $170.00 from the applicant prior to September 1995; this allegation being denied by the applicant. The significance of the receipt of this money prior to September 1995 is that Quaremba alleges that after the September 1995 meeting he gave no further work to the applicant, nor did he give permission for the applicant to copy his work.
Quaremba told the Court, and this was generally supported by Katra’s evidence, that Quaremba finished the course books early in the year and had had handed them in much earlier. When he attended the meeting in September 1995 Quaremba conceded that his denial given to Lambert that there was any cheating arrangement with the applicant was not correct. As a result of the warning given he was sufficiently concerned by its ramifications to desist from pursuing his arrangement with the applicant. On leaving the meeting he deposed to a conversation with the applicant in which Quaremba expressed the view that because he believed the respondent knew what was happening he was frightened of losing his job and not prepared to continue their arrangement. He claims to have proceeded to act on this basis for the balance of the course.
The applicant’s denial that any money ever changed hands with Quaremba lacks plausibility. There was simply no incentive for Quaremba to go to the trouble of copying his own work to enable the applicant to then transcribe that work into his own books. It is more likely than not that the original arrangement was for payment and some payment was received by the time of the September 1995 meeting with management. After that date, as was alleged by Quaremba, Quaremba declined to be involved in the arrangement because, as he put it, he was scared of losing his job.
McCall gave evidence that after the meeting in September 1995 and the termination meeting in January 1996, he had various conversations with the applicant in which admissions were made by the applicant. Following the September 1995 meeting McCall claims that he asked the applicant if he had traded in the school work. If the applicant had done this he alleges he told him he was stupid for doing it and for telling anyone about it. Subsequently, McCall claims that the applicant admitted he had cheated but told McCall that if McCall disclosed this to anyone the applicant would deny it. There was also reference to a conversation with the applicant in which the applicant questioned McCall on whether he told Worswick about the admissions made during their conversations. On this last occasion the applicant told McCall that he had not wanted to tell the respondent what he had done because he was scared of being sacked. The applicant generally denied the content of these conversations with McCall. However, having observed McCall give evidence and bearing in mind that there was no obvious reason for this witness to perjure himself, I am satisfied that the conversations he alleged occurred did occur and the substance of these conversations were to the effect alleged by McCall.
McCall was also involved in the termination meeting being instructed to call Quaremba and the applicant to the meeting convened to deal with the evidence of copying discovered by Katra after receipt of the applicant’s books on 21 December 1995.
McCall spoke to each man before they were separately interviewed by management. McCall first saw Quaremba telling him that he was “in a lot of trouble” and that his only hope was to tell the truth. Quaremba accepted this advice and on entering the meeting on 22 January 1996 and, in the absence of the applicant, told the respondent that he and the applicant had been cheating with the applicant obtaining books from him for payment. However, at this meeting Quaremba told the respondent that because of the first warning in September 1995 he had not participated in any cheating arrangement subsequent to that meeting. It was his allegation that he was approached by the applicant after the September 1995 meeting; then declining to assist him further. He did claim that the applicant told him that his, Quaremba’s books, had been returned and that the applicant was going to get them. It is my understanding of Quaremba’s evidence and the evidence of the respondent’s other witnesses, that Quaremba also expressed the belief that the applicant must have taken Quaremba’s book from the downstairs lunch room after Katra had marked them and left them with a pile of employee books in the lunch room.
The respondent accepted Quaremba’s explanation of his own behaviour inasmuch as it accepted his denial of any complicity in any cheating subsequent to the September 1995 verbal warning. It issued him with a written warning and a threat of termination arising out of his failure to admit his part in the cheating arrangement in September 1995, if there was any further misconduct.
In contrast, the respondent did not offer the applicant the same leniency. First, McCall called the applicant to the supervisor’s office and gave him the same news McCall had previously transmitted to Quaremba again expressing the view that the applicant’s only chance of avoiding termination was to tell the truth.
It was Worswick’s evidence that management, having discovered clear evidence of copying, determined that, because of the past warning given, termination was justified if the copying was established and there was evidence of cheating. When the applicant replaced Quaremba at the termination meeting, Worswick told the applicant there was evidence of copying in the work of Quaremba and the applicant, asking the applicant to respond to this allegation. The applicant did so by admitting that he had cheated. At the conclusion of the meeting and, because of the admission, Worswick told the applicant he had “... no alternative but to terminate your employment ...”.
In cross-examination Worswick also recalled that he told the applicant Quaremba had denied assisting the applicant after September 1995 but had admitted some earlier copying and selling of work between the two of them and it was Worswick’s understanding that the applicant’s admission also related to the earlier copying and selling of work. What he did not do, however, was put to the applicant Quaremba’s belief that the applicant obtained from the lunch room copies of Quaremba’s books after September 1995 without Quaremba’s permission. Nor did Worswick ask the applicant for an explanation of how he obtained and copied the information from Quaremba’s books.
Essentially the respondent’s argument is that there was no need for it to investigate the lastmentioned circumstance given the applicant’s admissions. In any event, it says the reason for termination was the admission that the applicant had cheated and that he had lied on the previous occasion about cheating. Accordingly, it was not relevant to the respondent’s decision to terminate that Quaremba believed he took the material subsequent to September 1995 without Quaremba’s permission.
The applicant endeavoured to rely on the failure to conduct any investigation into and put to the applicant Quaremba’s belief about how his work was obtained by the applicant. The extent to which an employer should go in order to conduct a reasonable investigation must be decided on a case by case basis. However, it would be fair to say that as a general rule an employer is not obligated to apply the skills and resources of a police investigation or any investigation conducted by lawyers in order to act with procedural fairness (see Schaale v Hoechst Australia Ltd (1993) 47 IR 249, per Heerey J, at page 253, Nicolson v Heaven & Earth Gallery Pty Ltd, 1 IRCR 199, per Wilcox CJ at page 209 and my decision in Cooke v The Royal Melbourne Hospital, (unreported), No. VI 2189 of 1995, 2 August 1995, at page 20). In view of the reasons given for termination and relied on by the respondent, it would be unreasonable to expect this employer or any other employer when faced with an admission of misconduct to then embark on a comprehensive investigation of the circumstances alleged to have existed but not to have been relied on in making its decision to terminate. Even if the applicant is correct in saying that Quaremba gave him the books to copy from subsequent to the September 1995 meeting, and because of this Quaremba was lying when he told the respondent that he was not involved in cheating after September 1995, the fact of Quaremba’s unpunished conduct cannot of itself deprive the respondent of any justification it had at the time it terminated the applicant’s employment where the applicant admitted cheating.
Looking at the evidence given to the Court I do not accept that there is any cogent basis for the proposition that Quaremba was lying when he told the Court that the books were copied by him before the September 1995 meeting and that any cheating that did occur with his permission, occurred before that meeting. The evidence tends to support his claims in this regard.
Further, I do not accept any belated suggestion from the applicant that he did not admit to having lied about the copying and selling of answers in September 1995 because this conduct had not by then taken place. The evidence of the respondent’s witnesses and, particularly that of Worswick, indicates that they understood the applicant’s admissions given in January this year to also relate to the earlier allegation of cheating and trading in answers.
In his evidence the applicant told the Court that during the termination meeting he apologised for his conduct. The suggestion that he had offered an apology was supported by at least Katra’s evidence but not recalled by Worswick. The applicant also told the Court that at the last meeting he referred to the length of his service and what he called his “clean record”. He then claimed to have been told by Worswick that Worswick had no option but to terminate his employment, however, before doing this Worswick offered to and did go and see Lambert. After returning he told the applicant that, as far as Lambert was concerned, because of the admissions of copying Lambert could see no point in any further conversation. These lastmentioned matters were not put to the respondent’s witnesses. However, the fact that the applicant relies on these matters is relevant to matters to do with procedural fairness.
It was McCall’s evidence that when he escorted the applicant from the final meeting the applicant was upset. McCall recalls asking why the applicant did what he did because in McCall’s view the applicant knew that if he was caught he would be sacked or dismissed. According to McCall, and this was denied by the applicant, the applicant agreed with McCall by saying “yes, I know all of that, but I just didn’t think they would do it”.
VALID REASON - Section 170DE(1)
This Court has on many occasions considered the meaning of valid reason within the context of section 170DE(1) of the Act. Justice Northrop in his decision in Selvachandran v Peteron Plastics Pty Ltd (1995-96) 62 IR 371 observes that a valid reason needs to be a sound, defensible or well founded reason for termination. In the present case the applicant admitted dishonesty which he also conceded had the potential to harm the respondent’s business interests and the integrity of the training course undertaken by the respondent and most of its employees. The dishonesty admitted to both for the period prior to and subsequent to the September 1995 meeting, is conduct incompatible with the fulfilment of the applicant’s duty to his employer as well as being destructive of the confidence between it and its employee (see Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at page 81 et seq.). Accordingly I am satisfied that the applicant’s conduct was misconduct justifying termination and, in the circumstances, it was serious misconduct which was a proper basis for summarily dismissing the applicant without notice or compensation paid in lieu of notice.
PROCEDURAL FAIRNESS - Sections 170DC and 170DE(2)
I have already indicated that I do not accept that there is a proper basis for saying that the applicant was denied the opportunity to answer any allegation relating to his conduct and such allegation was a basis or the basis for terminating his employment. On his own evidence he obviously had the opportunity to put matters to the respondent in an attempt to dissuade the respondent from punishing his misconduct with termination. The gravity of the conduct alleged against the applicant in my view, where it is weighed against the inevitable harsh consequences of termination of long standing employment, is such that I am not satisfied that the applicant has discharged the burden he carries pursuant to section 170DE(2) of the Act. Accepting as I do that the applicant was warned and despite that warning persisted in his dishonest pursuits, I am satisfied that in all the circumstances of the case the termination was not harsh, unjust or unreasonable.
Accordingly, the order I make is that the application is dismissed.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding seventeen (17) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 13 August 1996
Solicitors for the Applicant: Mason Sier Turnbull
Counsel for the Applicant: Mr A. Lawrence
Solicitors for the Respondent: Arthur Robinson & Hedderwicks
Counsel for the Respondent: Mr D. Chan
Date of hearing: 24 & 25 June 1996
Date of judgment: 13 August 1996
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