Desmond Patrick Bugno v Sunraysia Roofing Pty Ltd
[1995] IRCA 115
•17 March 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2158 of 1994
BETWEEN:
DESMOND PATRICK BUGNO
Applicant
AND
SUNRAYSIA ROOFING PTY LTD
Respondent
REASONS FOR JUDGMENT (EX TEMPORE)
(Revised from Draft Transcript)
17 March 1995 Judicial Registrar Staindl
On 26 October 1994 Desmond Bugno had his employment summarily terminated for misconduct. For the previous 10½ years he had been employed as a roof tiler with a company known as Sunraysia Roofing Pty Limited. On the day his employment was terminated the applicant was handed a letter which reads in so far as is relevant:
“Dear Des
We wish to advise that we intend to terminate your employment as of 4pm Tuesday 25/10/94 due to the misconduct at Allan Palmer's job on Friday 21/10/94.
Unfortunately the complaint by the Builder of theft of building materials from the site has put our Company in a position where we have to take action to ensure that our credibility in the market place is not jeopardised (sic) and to ensure that all other employees understand the consequences of this type of action.
We enclose pay cheque which includes all moneys owed to you.
Yours faithfully
Ray Cohrs.”
The applicant gave evidence in these proceedings and in my view he was an honest and creditable witness, and I accept his evidence. He stated that on 21 October 1994 he had been working on a job where some lead was removed from the roof. There were two pieces of lead, one about 2 feet square but with a large hole in it. This hole had been due to a flue which had previously protruded through the house roof, but which was to be removed and discarded. The owner of the premises had given this direction to the applicant. This piece of lead was obviously scrap. However, there was a second piece of lead measuring about 18 inches x 12 inches which did not have a hole in it. The builder intended re-using this piece of lead as flashing next to a valley in the roof line. The applicant did not realise this, as his experience in the past with this type of roof was that iron would be used. I accept that the applicant considered this second piece of lead was also scrap.
On occasions, the applicant had taken scrap pieces of lead away from building sites in the past. A leading hand who worked with the applicant, Mr Geoff Gregory, was aware that the applicant had done this. In fact, Mr Gregory was working with the applicant on the day in question. However, the applicant did not know whether Mr Gregory had seen him take the lead away from the site. The applicant, Mr Gregory and another worker had probably travelled to this work site in two vehicles. The applicant could not remember whether anyone else had travelled from the work site with him. However, it is likely that two vehicles travelled back to the work base together. The applicant then transferred the two pieces of lead from the work vehicle to his own vehicle, and whilst doing so, probably placed the two pieces of lead on the ground. In all of this I am satisfied that there was ample opportunity for others to view the applicant's actions, and that he made no attempt to hide his actions. He displayed a singular lack of a sense of guilt about such actions.
When the builder came to re-use the piece of lead he discovered it was missing. Upon inquires being made, the applicant was completely forthcoming about his involvement, and in fact immediately returned the lead and later apologised to the builder.
In my view the applicant's conduct did not amount to serious misconduct in the terms of section 170DB of the act. Nor did it constitute a valid reason for the termination of his employment. Hence, I am of the view that the termination of his employment contravened the provisions of the Act. This then leads me to the question of a remedy. The application filed by the applicant sought reinstatement, although he informed me that he no longer sought this remedy, because of the premptory way in which he had been treated.
The respondent said as this was a matter of theft, reinstatement should not be ordered. However, it was noteworthy that Mr Raymond Cohrs, who appeared on behalf of the respondent, stated that up until this incident he had always regarded the applicant as honest. It does seem to me the parties should be able to re-establish a working relationship with goodwill on both sides. The Industrial Relations Act provides for reinstatement to be the primary remedy. It is only if reinstatement is impracticable that I then have to deal with the question of compensation.
In my view in this case reinstatement is not impracticable. The attitude of the parties is one of the matters which is sometimes taken into account on this question. But in this case even conceding that the attitude of the parties to this question is relevant, I am nevertheless unable to find that reinstatement that impracticable. Accordingly, I propose to order reinstatement. The applicant should receive the remuneration lost because of the termination. I calculate this as follows: there is a period of 20 weeks between the time of termination and today's date. The applicant's wage at the time of termination was $484.50 per week. This gives a total of $9,690.00. From this should be deducted the income he has received during this period, being $6,207.00, about which the applicant gave evidence. There is thus a balance due to the applicant of $3,483.00, to be paid within 21 days. There will also be an order as to continuity of employment.
I only add that if neither party wishes reinstatement to occur then the parties can obviously agree to this. The orders that I make are as follows:
The respondent reinstate the applicant by reappointing him to the position in which he was employed immediately before the termination of his employment;
The respondent pay to the applicant within 21 days the amount of $3,483.00 being the remuneration he would have received but for the termination; and
The applicant's employment with the respondent be treated as being continuous for all purposes.
I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of Judicial Registrar Staindl as recorded in the draft transcript and revised by the Judicial Registrar.
Associate:
Dated: 17 March 1995
Representative for the Applicant:
Mr Trevor Campbell of the Victorian State Building Trades Union
Representative for the Respondent:
Mr Raymond Cohrs
Dates of hearing:
17 March 1995
Date of Judgment:
17 March 1995
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - alleged serious misconduct - theft of building materials - allegation not made out - no valid reason for termination - reinstatement.
Industrial Relations Act 1988, ss.170EA and 170EE.
DESMOND PATRICK BUGNO -v- SUNRAYSIA ROOFING PTY LTD
NO. VI 2158 of 1994
Before: STAINDL JR
Place: MELBOURNE
Date: 17 MARCH 1995
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