Eljazzar v BHP Iron Ore Pty Ltd

[1996] IRCA 134

DECISION NO:  134/96

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Whether termination of the Applicant’s employment UNLAWFUL - MISCONDUCT

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

ANDREW HELMUT KOENIG -V- MINDA INCORPORATED

No. SI 95/1232

JUDICIAL REGISTRAR:                   L FARRELL
PLACE:  ADELAIDE
DATE:  14 MARCH 1996

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY          )

No. SI 95/1232

B E T W E E N:

ANDREW HELMUT KOENIG

Applicant

AND

MINDA INCORPORATED

Respondent

MINUTES OF ORDER

BEFORE:                 JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  14 MARCH 1996

THE COURT ORDERS THAT:

1. The 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  )
SOUTH AUSTRALIA DISTRICT REGISTRY          )

No. SI 95/1232

B E T W E E N:

ANDREW HELMUT KOENIG

Applicant

AND

MINDA INCORPORATED

Respondent

BEFORE:                  JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  14 MARCH 1996

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement.

The Applicant was employed as a Developmental Care Worker by the Respondent from 1984 until 7 June 1995.  His duties consisted of caring for intellectually disabled people in a residential setting at the Respondent’s premises at Brighton, a suburb of Adelaide.

The Respondent provides care and support to 1100 intellectually disabled persons, over half of them in residential accommodation.  The Respondent has a very high duty of care to its residents.  The Executive Director, Mr Wren gave evidence of the Respondent’s responsibility to those in its care and of the process by which the Applicant’s employment came to an end.

The Applicant’s employment was terminated following investigations carried out by the Respondent into the missing pay packet of a Mr Pratt, who was in the care of the Respondent, on 9 March 1995 and 6 April 1995.  The Respondent was of the view that the Applicant was involved in one or both of those incidents.
In early 1995 an amount of money was stolen from Crompton House.  The Respondent sought the assistance of a private investigator in relation to this and other matters of concern to it.  It was shortly after the private investigator was engaged that one of Mr Pratt’s pay packet went missing.

Five workers employed in Crompton House gave evidence of the events surrounding what had occurred on 9 March 1995 and 6 April 1995 when Mr Pratt returned from his work to Crompton House, on his pay day.

Mr Pratt had a habit of handing his wallet and his watch for safe keeping to a member of staff on his return from work.  The wallet and watch were then locked in a laundry cupboard.  Usually his pay, which was contained in an off white envelope, was extracted from the wallet and either before or after checking and recording the amount, it was placed in a locked cupboard in the duty office.  On the two occasions in question it was discovered the following day that Mr Pratt’s pay was missing.

On both occasions Mr Koenig was the only person to handle Mr Pratt’s wallet and on the day following the second occasion he got the wallet from the laundry cupboard  for Mr Pratt and ensured Mr Pratt had sufficient spending money in the wallet.

The first incident was reported to the Police before the second incident occurred.  Statements were provided to the Police.  The Applicant was interviewed by the Police after the second incident.  His employment was suspended on 19 April 1995.  He was charged with larceny on 7 June 1995, the same day that his employment was terminated.  Some months later the charges were dropped.

Between 19 April 1995 and 8 June 1995, the Respondent gave the Applicant, through his solicitor, summaries of statements it obtained and gave the Applicant the opportunity to respond to the allegations against him.  The Applicant was represented by both his union and a solicitor during this time.

The Respondent made it very clear to the Applicant that his employment could be terminated as a result of its investigations. The Applicant had opportunity to and did take considered legal advice.

The Applicant chose to say nothing in his defence during the process of investigation by the Respondent.  He did not even deny the allegations against him.  He had made a statement to Police which he did not provide to the Respondent and which the Respondent had no right to obtain, but had requested from him.

The Applicant has a right not to answer questions or provide a response to the Respondent.  However in doing so he must take the consequences of his decision to remain silent, in circumstances where he now seeks to show that his employment has been terminated unlawfully.

In evidence the Applicant denied the allegations against him.  His evidence before me raised  some doubts about whether or not he had taken Mr Pratt’s wallet.  Counsel for the Applicant submitted that the evidence of the Applicant’s co-workers was unreliable.  Whilst there was certainly variations in their recollections.  My impression of those witnesses was that they were honest and doing their best to recall events of 12 months ago.

I am satisfied that the Respondent undertook a reasonable investigation of the incidents and gave the Applicant ample opportunity to respond to the allegations against him. I am satisfied that Mr. Wren honestly believed  on reasonable grounds that the allegations against Mr Koenig were true.

In my view the Respondent had a valid reason for the termination of the Applicant’s employment.

In considering whether the termination of this Applicant’s employment was terminated harshly, unjustly or unreasonably I have had  particular regard to this work situation, and the high degree of care owed by the Respondent to it’s residents.   A relationship of trust must exist between the Respondent, it’s employees and the persons in their care.  In my view the Applicant had a responsibility to his employer and to those in it’s care to provide whatever assistance he could in the investigation of the incidents.

I am not satisfied in the circumstances of this matter that the termination of the Applicant’s employment was harsh, unjust or unreasonable. 

I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment.

DATE OF HEARING             :          19, 20, 21 and 27 February 1996

FOR THE APPLICANT         :          Mr Dowd

FOR THE RESPONDENT     :          Mr Coppola