David Charles Tompkins v CSR Limited (A.C.N. 000 001 276)

[1995] IRCA 723

DECISION NO:  723/95

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - MISCONDUCT - INSTANT DISMISSAL - PROCEDURAL FAIRNESS - DECISION AT CLOSE OF CASE FOR APPLICANT

Industrial Relations Act s 170EA, 170DC.

Borland v First Five Minutes Pty Limited Walker JR NI 1203 of 1995
Gooley v Westpac Banking Corporation 129 ALR 628

NI 3360 of 1995

DAVID CHARLES TOMPKINS -v- CSR LIMITED (A.C.N. 000 001 276)

CORAM:     LINKENBAGH JR
PLACE:       GOULBURN
DATE:          15 DECEMBER 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY

No. NI 3360 of 1995

BETWEEN:

DAVID CHARLES TOMPKINS
Applicant

AND:

CSR LIMITED (A.C.N. 000 001 276)
Respondent

CORAM:     LINKENBAGH JR
PLACE:       GOULBURN
DATE:          15 DECEMBER 1995

REASONS FOR JUDGMENT
(Delivered ex tempore - revised from transcript)

I propose to dismiss this application and I propose to give oral reasons now which will be reduced to writing. The applicant makes an application pursuant to the provision of section 170EA of the Industrial Relations Act 1988 in respect of his employment with the respondent which commenced on 17 August 1981 and terminated on 16 August 1995. At the time of his termination the applicant was employed as Manager of the respondent's quarry at Marulan. He was at that time in receipt of a salary of $40,450 per annum and he received an allowance of $2000, a motor vehicle and some benefits in relation to the provision of telephone services by his employer.

The applicant was in a supervisory position to the other employees at the quarry who numbered between 8 and 13, and he was undoubtedly in a position of authority and was a person who was trusted by his corporate employer to discharge his duties at the quarry virtually unsupervised.  His immediate supervisor was the Area Manager who was located at Albion Park and who visited the quarry only about once a month.  The applicant rarely saw any other personnel from the company.  It was therefore open to me to conclude that the applicant was a person in whom the employer placed a great deal of trust and confidence and of whom the highest levels of integrity and prudent exercise of judgment were required.

The facts of the matter must be seen against that background.  Those facts are that the applicant in June of 1995 arranged with a friend for the friend to dismantle and remove a shed from an old turkey farm owned by the respondent at Colo Vale.  The arrangement was that the friend, Mr McCullum, would dismantle the shed and move it to the quarry, on the applicant's evidence.  What actually happened was that Mr McCullum, assisted by the applicant and some other persons, dismantled the shed on the long weekend in June of 1995 and removed about half of it to Mr McCullum's property at Marulan.  The applicant and Mr McCullum gave evidence that the reason the materials were placed at Mr McCullum's premises had to do with time constraints in returning the truck which they had used to its rightful owner and those time constraints meant that plans which had been anticipated, which were that the goods would be unloaded at the quarry, could not be put into effect.

The remainder of the shed was moved by Mr McCullum and the applicant to the quarry on the next weekend.  The case has proceeded to this point to the close of the applicant's case.  I  then invited counsel to address me as to whether the matter should continue any further.  The applicant's case at this stage is as good as it can get and I find that on the evidence as it stands there is no possibility at all that the applicant could succeed in this application.  I am not satisfied with the applicant's explanations as to why it was necessary to remove the shed at the time that it was removed and why it was necessary to engage Mr McCullum in the manner in which he was engaged. 

I have reservations about the credit of the applicant, but I can make my decision in this matter in considering evidence from the applicant which does not involve my assessment of his credit.  The applicant admitted that he knew that his plan for the dismantling and removal of the shed would not be approved by the Area Manager.  He spoke to a Mr Simpson and gained Mr Simpson's approval to remove the shed.  Mr Simpson was not aware of the circumstances in which the shed was to be removed and I therefore have reservations in accepting that Mr Simpson's granting the permission to remove the shed was given in the full knowledge of all of the circumstances, and voluntarily.  In any event, the applicant says that he obtained Mr Simpson's permission and he then went ahead and made an arrangement with Mr McCullum.

The applicant's evidence is that Mr McCullum estimated that the cost of removal would be $5000 to $6000.  Mr McCullum's clear evidence was that the figure he told the applicant was $8000.  The applicant then struck a deal with Mr McCullum whereby Mr McCullum would provide his services in return for part of the shed, and on the evidence at this stage Mr McCullum was to receive four bays out of the twenty-five bays which made up the total shed.  There was no documentation brought into existence by the applicant or any other person to evidence the deal which he struck with Mr McCullum.  That is contrary to the practice pursuant to which he raises a purchase order to enable payment of liabilities which he incurs in the course of his daily duties on behalf of the company.

There was, as Mr Christie pointed out in submissions, therefore, no way in which the company could verify what its contractual arrangements were with Mr McCullum.  Further, Mr Tompkins entered into the arrangement with Mr McCullum, and admitted that he did so, without any exercise of judgment as to the relative value of the work which was to be done by Mr McCullum against the value of the goods which were to be supplied to Mr McCullum.

Mr McCullum and the applicant are friends, and I accept Mr McCullum's candid response to the question which put the issue of  his friendship with the applicant to him. He admitted very readily a friendship with the applicant which was evidenced by their speaking on a daily basis.  I noted that the applicant was very coy in his own response to questions as to whether or not he was a friend or mate of Mr McCullum. 

Another issue about which the evidence is confusing is that the applicant incurred a payment of $200 for the hire of the semi-trailer on one of the days when it was used to transport the shed.  The applicant's evidence is that no money was to change hands between him and Mr McCullum and that Mr McCullum was to provide all the labour and equipment necessary for the task.  Notwithstanding that, the applicant agreed in evidence that he had, in fact, on behalf of the company,  promised $200 to the owner of the truck for half the cost of the total hire of the truck.

There have been suggestions made of the possibility of fraud or dishonesty on the part of the applicant. It is not necessary for me in making the determination that I have made today to find that there was any fraud or dishonesty, but, as I have said, I have reservations about the credit of the applicant. That is because of his inability to give clear and cogent answers to many of the questions that were asked of him, his reluctance to admit the strength of his friendship with Mr McCullum, the question mark over the payment of $200 for the truck. I note also that there is no element of admission or remorse on the part of the applicant that he may have done something wrong in relation to his duties to his employer.

I note that his evidence that, when giving evidence about why he had not sought approval from the Area Manager for the task one of his responses was, "If you have a problem, fix it and then tell them."  That statement indicates to me an attitude which is inconsistent with the level of trust and the degree of responsibility which the employer should be entitled to expect of a person in the position of the applicant.  The applicant in entering into this course of conduct illustrates a lack of any sense of responsibility, foresight or planning. It also illustrates a lack of any consideration that the asset of his employer with which he was proposing to deal was an asset located on real estate of the employer and in respect of which the applicant had no knowledge whatsoever as to any plans which the employer may have had for the use of the asset itself.

His seeking the permission of Mr Simpson must be seen in that context and that context is seen by me in the light of the limited permission that he did obtain from Mr Simpson.  The lack of prudence and judgment were evident in the applicant's conduct as illustrated by his failure to give any attention to the issue of the obtaining of Local Council approval for the construction of a shed at the quarry, which was his alleged purpose in demolishing the shed in the first instance at Colo Vale. Further, he gave no thought to the requirement of seeking the permission of the owner of the land, the employer's landlord, to the proposals which he had in mind.  Those proposals were put forward by the applicant as his reason for taking these steps in the first instance.

He said that the workman worked out in the open and he wanted to provide them with a shed to protect them from the weather and he also wanted to protect the company's spare parts, tyres and so on, from the weather.  He had two years previously engaged in what might be seen as an equally poorly planned exercise to bring a shed from other land of the company at Prospect. He incurred expense to the company in relocating that shed in pieces to Marulan and then discovered that that shed was not suitable because of its size for the purposes he wished to use it.  He told the Court that the fact that the other shed was not suitable was his motivation in obtaining the shed from Colo Vale, because it was larger and parts of it could be used along with the shed from Prospect to build the kind of shed that he envisaged at Marulan.

The whole exercise, however, was poorly planned.  The only part of it that was planned in any detail, on the evidence before me, was the deal with Mr McCullum.  The company has been exposed by the actions of the applicant to unnecessary risks.  I have been referred to two authorities, one being a decision of Judicial Registrar Walker in Borland v First Five Minutes Pty Limited which is matter number NI 1203 of 1995.  That case is authority for the proposition that wilful conduct justifying summary dismissal does not have to be dishonest. If it is of such a grave and weighty character that it undermines the employment relationship then conduct can be the grounds for summary dismissal, albeit not dishonest.

The other authority to which I was referred was the decision of Wilcox CJ in Gooley v Westpac Banking Corporation which is reported at 129 ALR 628. His Honour there looked at the meaning of the words "serious misconduct". He said that the mental state of the applicant is a relevant factor and said that the level of misconduct may be capable at common law of so seriously breaching the employment contract that it gives rise to a right to terminate that contract at common law.

The authorities are of limited assistance in that in proceedings of this kind the applicant brings an application asserting that he has been unfairly dismissed. If the applicant's own conduct is found by me to be such that it fundamentally destroys the relationship between him and his employer then the employer has grounds for termination of the contract of employment and has a valid reason for so doing.  I am able to find that that is so in this case at the close of the case for the applicant.

I have been asked to look at the issue of procedural fairness under Section 170DC of the Act. Certainly this termination related to the applicant's conduct. The level of procedural fairness which needs to be afforded to an applicant or to an employee depends upon the circumstances of the case. The conduct having been so serious as to warrant instant dismissal means, in effect, the employee forfeits his right to be afforded procedural fairness.

That is not in fact what happened in this case.  In this case the employer did go through a process which was directed at providing the applicant with an opportunity to explain his conduct.  I find that the applicant in the course of that inquiry was less than forthcoming and that attitude on his part is borne out in the Record of Interview which was conducted on the day of his termination.  For all of those reasons I dismiss the application today.

I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Linkenbagh.

Associate:     Renee Cauchi
Date:              8 May 1996

Appearances:

Counsel for the Applicant:            Mr. P. Cook
Solicitors for the Applicant:          George Bassil and Associates
Counsel for the Respondent:         Mr. M. Christie
Solicitors for the Respondent:      Corrs Chambers Westgarth

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

No. NI 3360 of 1995

BETWEEN:

DAVID CHARLES TOMPKINS
Applicant

AND:

CSR LIMITED (A.C.N. 000 001 276)
Respondent

CORAM:     LINKENBAGH JR
PLACE:       GOULBURN
DATE:          15 DECEMBER 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.