Fredericks v Pastrello

[1997] IRCA 277

DECISION NO:277/97

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment -  whether VALID REASON - MISCONDUCT

WORKPLACE  RELATIONS ACT 1988,   s.170DE
EVIDENCE ACT 1995, s 128

FREDERICKS v PASTRELLO
AI96/1112

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE (HEARD IN CANBERRA)
DATE:  1 OCTOBER 1997

IN THE INDUSTRIAL RELATIONS COURT      )
OF AUSTRALIA  )
AUSTRALIAN CAPITAL TERRITORY                )
 DISTRICT REGISTRY  )

No. AI96/1112

B E T W E E N:

JANETTE FREDERICKS

Applicant

AND

LORENZO PASTRELLO

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  1 OCTOBER 1997

THE COURT ORDERS THAT:

The Application is 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  )
AUSTRALIAN CAPITAL TERRITORY               )
 DISTRICT REGISTRY  )

No.AI96/1112

B E T W E E N:

JANETTE FREDERICKS

Applicant

AND

LORENZO PASTRELLO

Respondent

BEFORE:                 JUDICIAL REGISTRAR L FARRELL
PLACE:  ADELAIDE
DATE:  1 OCTOBER 1997

REASONS FOR JUDGMENT

This application comes before the Court pursuant to the provisions of Section 170ED of the Workplace Relations Act. The applicant claims that her employment was terminated unlawfully. She seeks reinstatement.

The applicant was employed by the respondent from 1992  to 1994 and then from October 1995 until her employment came to an end in June 1996.  The applicant was employed as a bar maid working regular hours at the respondent’s Hotel.  Part of the applicant’s duties included operating the “PubTAB”, a means of betting through the Totaliser  Agency Board at hotels.  Her supervisor was Robert Pastrello, the son of the respondent.

Some irregularities with the use of the PubTAB had taken place in the period from March to May 1996.  The irregularities that were occurring were known as line cancellations.  The effect of a line cancellation is that without a ticket being altered a bet was cancelled.  Apparently it was possible to allow a punter to believe he had placed a bet but in fact the bet had been cancelled and the money pocketed by the person who served the punter.

On 7 June 1996 the applicant was told to stay away from work until it had been sorted out.  A conversation took place on that day between the applicant and Lorenzo Pastrello, the respondent and Ms Diane Johnson.  The applicant claimed that when she was questioned about the matters she was only asked about the betting habits of Robert Pastrello, her supervisor and Eddie Pastrello, who occasionally worked in the Hotel.  She did concede in cross examination that she had been asked if she performed line cancellations but that she had said she did not.  She also gave evidence that she has never at any time performed a line cancellation and that she had never seen anyone perform a line cancellation.

Ms Johnson and Mr Lorenzo Pastrello gave evidence that the applicant had been asked about  whether she had performed line cancellations and she said she had done a few.  I have preferred the evidence of Mr Lorenzo Pastrello and Ms Johnson about the conversation.  Their version of events  seems more plausible.  The applicant was able to give fluent evidence of how to perform a line cancellation which seemed surprising to me for someone who had never performed one.  She later complained about being dismissed for something that Robert had done however on her version of the evidence she was unaware of anything that Robert had done.

On  Friday 14 June a conversation took place between Ms Johnson and the applicant.  Their versions of what was said vary considerably.  It was made clear to the applicant that she no longer had a job with the respondent.  The applicant  requested a separation certificate and notice payment.

On Friday 21 June the applicant was given a separation certificate and a cheque as payment in lieu of notice and annual leave.  The cheque was later dishonoured.  The following week she was given $1000 by Robert Pastrello.

Preliminary Matters
Was the Separation Certificate notice of the termination of the Applicant’s employment?
In my view the separation certificate was not notice for the purposes of the Act. The separation certificate was not tendered in evidence.  As I understood it, no copy had been kept by either party and the original document had been given to the Department of Social Security.  It was apparent from the evidence of Ms Johnson that she regarded the applicant as resigning and she wrote that in the place provided for the reason that the applicant was leaving.

Whilst a separation certificate that is completed to indicate a termination of employment by an employer can be notice for the purpose of the Section, in this matter I am not satisfied that the Certificate conveyed in writing notice of the termination of the applicant’s employment.

Applicant requesting an adjournment
On the first day of the hearing the applicant did not attend Court and her counsel sought an adjournment of the hearing.  I refused to grant the adjournment because of the costs involved to both parties. The respondent’s witnesses proceeded to give their evidence first.

Was the Applicant’s employment terminated by the Respondent?
The Respondent argued that the applicant had voluntarily left her employment
I am satisfied on the evidence before me that the applicant’s employment was terminated by the respondent.

The evidence of Robert Pastrello
I was requested to provide a certificate pursuant to Section 128 of the Evidence Act in relation to the evidence of Mr Robert Pastrello. His evidence contained admissions in relation to serious offences.

Robert Pastrello had filed an affidavit in the registry of the Industrial Relations Court in which he admits his guilt in the performance of line cancellations. He gave further evidence in Court about the matter. Although I initially expressed my doubts about the certificate being provided in relation to an affidavit which was filed before the hearing had commenced, it is my view that I am compelled to give such a certificate in accordance with the Evidence Act. It seems to me that the evidence of Mr Robert Pastrello was an important part of the respondent’s case.

Robert Pastrello admitted that he had initially lied to officers of the TAB regarding what had taken place.  He also admitted that he had lied to his father when he said Eddie had been involved.

The Applicant’s credibility
The Applicant claimed to have no knowledge of the defrauding system.  I found her knowledge, for someone who had never done it astounding.

Her manner in giving her evidence suggested to me that she was not telling the truth about her involvement in the scheme.  Her conduct generally regarding the termination of her employment did not seem entirely consistent with her having been innocent of any wrongdoing.

Serious fraudulent behaviour was involved here and it is hard to understand why no more than a cursory police investigation took place and why the TAB washed its hands of the matter.  The TAB advised MR Lorenzo Pastrello that after he had suspended Eddie, Robert and the applicant (and been reimbursed monies that were due to it), that it was up to him to pursue police action if he wished.

Was there a valid reason for the termination of the Applicant’s employment
The allegations against the applicant were serious.  In my view if she was in any way involved in the wrongdoing she had breached the duty of trust that the respondent had placed in her.  The applicant was highly regarded by the respondent and although his son was her supervisor he trusted her.

There was a great deal of peripheral evidence in this matter about where Mr Robert Pastrello was on Saturdays.  None of that evidence was any more than vague recollections by people who had no particular reason to be observing Robert Pastrello some 12 months before they were asked to recall what he was doing on Saturdays.

On my view of the evidence the applicant must have been involved to some extent the wrongdoing.  I am therefore satisfied that the respondent had a valid reason for the termination of the applicant’s employment.

Was the Applicant entitled to notice
In my view the applicant was not entitled to notice because her employment was terminated for serious misconduct.

Was the Applicant entitled to have the opportunity to respond
After the applicant was questioned by Mr Lorenzo Pastrello and Ms Johnson on 7 June 1996 she was not given any further opportunity to respond.

On the evidence before me I am satisfied that there would have been no difference to the outcome in relation to the termination of her employment had the applicant been given  a full opportunity to respond.

The application is dismissed.

I certify that this and the preceding 5 pages are a true copy of the reasons for my judgment.

DATE OF HEARING  :          20 & 21 MARCH & 8 MAY  1997
FOR THE APPLICANT       :          MR REVSHAUGE
FOR THE RESPONDENT    :          MR GOOT