Gerard Mowat v Dyer Engineering Pty Ltd

[2014] FWC 996

[2014] FWC 996

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gerard Mowat
v
Dyer Engineering Pty Ltd
(U2013/11671)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] Mr Gerard Mowat was employed by the Dyer Engineering Pty Ltd from 31 October 2011 until his employment was terminated on 8 July 2013.

[2] It was alleged that Mr Mowat took goods from the workshop without permission and he was summarily dismissed.

[3] Mr Mowat does not dispute that he took goods from the workshop. It was his evidence that he was given permission to take goods by Mr Dwayne Lee, the workshop manager.

[4] Dyer Engineering is not a small business and therefore the issue to be decided is whether Mr Mowat took the goods without permission. If he did, then that would be a valid reason for the termination of his employment.

[5] Mr Mowat was employed as a truck driver until he suffered a work related injury in December 2012. Mr Mowat had been on alternative duties from May 2013 but on 25 June 2013 medical advice was provided to Dyer Engineering and Mr Mowat that he could no longer drive a truck. 1 However he continued to do some driving up and until 1 July 2013.

[6] On 28 June 2013, a meeting was held with the return to work co-ordinator, an ergonomist, Mr Mowat and Mr Geoffrey Lowe, Dyer Engineering’s Operations Manager. At this time Mr Mowat had been working in the warehouse and that involved him driving a forklift. 2 Because the outcome of that meeting was that Mr Mowat could no longer drive a forklift, Mr Lowe asked Mr Lee if there was work for Mr Mowat in the workshop.

[7] There is conflicting evidence about when Mr Mowat commenced working in the workshop. Mr Mowat said he did not start working there until 2 July. Mr Mowat said that on 1 July he was doing deliveries and he was asked by Mr Lowe to pick up Mr Lee from Morwell. Mr Lowe does not recall asking Mr Mowat to pick up Mr Lee and Mr Lee gave evidence that he organised Mr Mowat to pick him up. On the way back to the site Mr Lee was told that Mr Mowat should not be driving any company vehicles. This is not in dispute.

[8] It was Mr Mowat’s evidence that he spent the rest of the day cleaning up around the warehouse and in the yard and it was in the afternoon that Mr Lowe told him that he would be working in the workshop for the rest of the week. 3

[9] Mr Lee said that Mr Mowat commenced working in the workshop on 1 July 2013. He said that Mr Lowe spoke to him on the preceding Friday and asked him if he had work for Mr Mowat. Mr Lee told Mr Lowe he had some cleaning work and that Mr Mowat started this work in the afternoon on the Monday. Mr Lowe said he thought Mr Mowat started in the workshop on the Monday because he had instructed him to work in the yard on Monday and speak to Mr Lee about doing some work in the workshop. 4 Mr Lowe said he saw Mr Mowat going in and coming out of the workshop on the Monday though he accepted that this would be consistent with Mr Mowat speaking to Mr Lee about coming to work in the workshop.

[10] Mrs Mowat, Mr Mowat’s wife, gave evidence that on the evening of 1 July Mr Mowat told her that he would be working in the workshop starting the next day.

[11] Mr Lee said that Mr Mowat was directed to clean up a parts container. 5 It was his evidence that he told Mr Mowat to throw away any rubbish he found.6 In oral evidence Mr Lee said he told Mr Mowat that he was to clean out the container and sort the items and put them in their right place. If it was rubbish or very old he was to throw it out and if he was not sure he was to put it in a pile for Mr Lee to decide if it should be thrown out. Mr Mowat confirmed that Mr Lee told him that if he was not sure he was to ask Mr Lee.7 Mr Mowat confirmed that over the three days he did have conversations with Mr Lee about what should be thrown out. Mr Mowat denied being told to throw out very old items.

[12] Mr Mowat gave evidence that he was told that the items he felt were rubbish were to be thrown out. 8 Mr Mowat said that there were a lot of things on the floor including some new things which were covered in dust.9 It was his evidence that he was told by Mr Lee to put certain items that were not rubbish at the bottom of the bin and cover them up and he did this.10 Mr Lee denied this. Mr Mowat said he was told to throw out gasket kits which may have had one or two things missing even if the rest of the kit was unused.

[13] Mr Lee gave evidence that late on Monday he noticed some items, including an electrical switch, a LED light and electrical connectors wrapped in a rag on the workbench. He spoke to Mr Lowe about this and showed him the rag and its contents. Mr Lowe confirmed this evidence. 11 Mr Lowe gave evidence that he decided that as the items had not been removed from the yard they should be left in place and Mr Lee should keep an eye on them.12

[14] On Tuesday, Mr Lee noticed that the rag had been moved and he told Mr Lowe and they went looking for the items and found them in a box on the shelf and the box now contained additional items namely hose clamps and lengths of chain. Mr Lowe confirmed this. 13

[15] Just before lunch on 3 July 2013, Mr Mowat said he asked Mr Lee that, if things were being thrown out and he could use them, could he take them. He said that Mr Lee said OK. 14 Later that day he asked Mr Lee what to do with some lengths of chain and he said Mr Lee said they should be thrown out.15 Mr Lee denies this.

[16] Mr Mowat said he then found a box and put the chain in it along with some hose clamps and terminals. 16 He acknowledged that the hose clamps were new but he had found them on the floor.17

[17] On Thursday, Mr Lee noticed that the box had been moved and was no longer in the container and he told Mr Lowe. 18

[18] Mr Lowe then approached Mr Mowat’s vehicle and saw the box on the front seat. Mr Lowe then approached Mr Mowat who agreed he had taken the goods but said he had been given permission. Mr Mowat was stood down pending an investigation. 19 Mr Lowe spoke to Mr Lee and he said he did not give Mr Mowat permission to take anything and he signed a statement to that effect.20

[19] Mr Mowat attended the site on Monday along with his support person to meet with Mr Lowe. Mr Mowat said that the items he took were rubbish and he had permission to take them. 21 Mr Lowe considered Mr Mowat’s explanation and rejected his version of events. Mr Mowat was then given the option to resign without the police being informed or to be dismissed with the police being informed. Mr Mowat did not resign and he was then summarily dismissed.22

Findings

[20] The allegations against Mr Mowat are serious. Both parties agree that the central issue is whether Mr Lee gave Mr Mowat permission to take anything that was rubbish.

[21] Mr Dircks submitted that Mr Mowat’s evidence was consistent. He gave the same explanation when he was questioned by Mr Lowe, in his letter to Mr Dyer and others sent on 5 July 2013, and to the Fair Work Commission. He also submitted that I should assume there were no inconsistencies with his police statement as no inconsistencies were put to him by Mr Belmar.

[22] Mr Dircks submitted that Mr Lee’s evidence was inconsistent and equivocal and that I should prefer Mr Mowat’s evidence to that of Mr Lee.

[23] Mr Dircks relied on inconsistency between Mr Lowe’s evidence and Mr Lee’s evidence about how Mr Mowat came to be in the workshop. He also relied upon inconsistency between Mr Lee’s evidence and Mr Lowe’s evidence about who arranged for Mr Mowat to pick up Mr Lee. He also submitted that Mr Lee’s answer that “he did not believe Mr Mowat asked permission” was equivocal.

[24] He also pointed to the inconsistency between Mr Lee’s re-creation of the workbench where he found the rag with the goods and what he described in his oral evidence. He also relied on the fact that Mr Mowat in a letter to Mr Dyer and others on 5 July 2013, had said that he did not start work in the workshop until 2 July and at that time he did not know that Mr Lee and Mr Lowe were saying that they had found the rag with the goods on the 1 July. 23 He also points to the inconsistency between Mr Lee’s statement to the police that he only had one conversation with Mr Mowat and that included a statement that he could throw out rubbish or if it looked over 100 years old. This is not mentioned in Mr Lee’s witness statement and there is no reference in his police statement of his suspicions about Mr Mowat arising from his involvement with stock cars.

[25] Apart from one issue, I do not consider that a number of the matters relied upon by Mr Dircks are significant.

[26] Mr Mowat relies on the discrepancy in the evidence about when he commenced working in the workshop to support his contention that I should not believe Mr Lee’s evidence that he did not give him permission to take the goods. It was submitted that this discrepancy goes to Mr Lee’s credit it was submitted.

[27] Even if Mr Lowe and Mr Lee were wrong about the date, the sequence of events does not change. All it would mean is that either someone else wrapped the goods in the rag and left them on the bench on the Monday or the events commenced on the Tuesday. It is not disputed that the goods Mr Lee found wrapped in the rag were in the box of goods Mr Mowat placed in the car. It would be very surprising if someone else had wrapped the items and put them on the bench and that Mr Mowat had taken those same items. Given there is no dispute that these items were taken by Mr Mowat, either he found them on the bench and took them, or he placed them on the bench and subsequently took them.

[28] In this instance I prefer Mr Lee and Mr Lowe’s evidence. On the Friday it became clear that Mr Mowat could not continue working in the warehouse and Mr Lowe organised alternative duties for him. It is consistent with that evidence that Mr Mowat started work in the workshop on the Monday after he had picked up Mr Lee and returned him to work. Mr Lee and Mr Lowe gave evidence that on Monday they saw the wrapped up items which Mr Mowat subsequently removed.

[29] Mr Lee’s evidence and Mr Lowe’s evidence about how Mr Mowat came to work in the workshop are consistent. The fact that in addition to Mr Lowe speaking to Mr Lee about work for Mr Mowat, Mr Lowe told Mr Mowat to speak to Mr Lee about the work he would be doing is not inconsistent.

[30] That Mr Lee told the police that he only had one conversation with Mr Mowat was explained by Mr Lee when he said he only had one conversion in which he told Mr Mowat what work he needed to do. That he said to the police that he told Mr Mowat, in addition to throwing out rubbish, to throw out things that were 100 years old and did not include this in his witness statement is not significant. That he did not tell the police that he had suspicions about Mr Mowat is also unsurprising as he may not have been asked why he had checked up on Mr Mowat. In any event, Mr Lee explained that he considered that all new employees had to earn his trust.

[31] I do not accept the submission that Mr Lee’s evidence about whether he had given permission is equivocal. It has been consistent throughout. While he may have described what he told Mr Mowat differently to the police does not change the essence of his evidence which was that he did not give permission. His evidence that he did not give permission is reinforced by him reporting what he saw as suspicious behaviour to Mr Lowe prior to Mr Mowat removing any goods from the workshop.

[32] That there were inconsistencies between the re-creation of the goods on the bench and what Mr Lee described in his evidence was satisfactorily explained by Mr Lee.

[33] For these reasons I do not accept the submission that I should prefer Mr Mowat’s evidence. I find on the balance of probabilities that Mr Lee did not give permission for Mr Mowat to take the goods.

[34] Mr Mowat accepted that taking property is not permitted. Even taking rubbish without permission is not allowed. Mr Mowat said that he was given permission to take rubbish. Even if I accepted his evidence on this, Mr Mowat took some objects which were not rubbish and had not been used. I do not accept that just because something was on the floor it was rubbish. Mr Mowat must have known the box of new clamps was not rubbish and while the electrical terminals were dusty they too were not rubbish.

[35] Mr Mowat did not ask Mr Lee if he could take them. In fact on his own evidence the only thing he asked Mr Lee if he could take was the lengths of chain. It is inconceivable that Mr Mowat would have asked Mr Lee if he could take the chain and not the clamps and terminals.

[36] Mr Lowe corroborated Mr Lee’s evidence about finding the goods. I do not accept that Mr Lee gave Mr Mowat permission to take goods and then reported his suspicions that Mr Mowat had taken goods without permission to Mr Lowe.

[37] In the submissions filed on Mr Mowat’s behalf it was suggested that there may have been some element of a set up. 24 Nothing was put to either Mr Lee or Mr Lowe that this was a set up.

[38] It was also submitted that scavenging rubbish at work is not theft and that Mr Mowat had been instructed to throw out items of greater value than he took. The flaw in this submission is that some of the items were not rubbish and Mr Mowat did not give evidence that he asked Mr Lee if he could throw out the clamps and electrical terminals. It is not relevant that Mr Mowat was instructed to throw out goods of greater value than the goods he removed, though I note that is denied.

[39] Mr Dircks submitted that the instructions to Mr Mowat were that anything on the floor was rubbish. This submission was not consistent with Mr Mowat and Mr Lee’s evidence that if there was any uncertainty Mr Lee had to be asked. 25

[40] In the alternative it was also submitted that this was not intentional misconduct. It was submitted that at worst Mr Mowat was mistaken in his view that he could take rubbish from the bin. The difficulty with this submission is that Mr Mowat did not give this evidence. His evidence was that he had permission. It was not his evidence that he did not need permission. Mr Mowat accepted that he needed permission before he removed any items from the workplace.

[41] It was further submitted that the items were never taken from the worksite. This is also immaterial. By placing the items in his car his intention to take the items was established.

[42] It was submitted that Mr Lowe or Mr Lee should have spoken to Mr Mowat when they became suspicious and Mr Mowat would then not have taken the items. Again this misses the point. Mr Mowat was asked to tidy up the spare parts container. It was not unreasonable for Mr Lee and Mr Lowe to assume he would do this without removing items for his own use. This was not a set up. Mr Lee and Mr Lowe were entitled to see what Mr Mowat was up to before they acted.

[43] I am required to determine if there was a valid reason 26 for the termination of Mr Mowat’s employment. I have found that Mr Mowat removed items without permission. Mr Mowat further sought to hide his misconduct by claiming to have permission. While the items may not have had a high value, his conduct still constitutes a valid reason for the termination of Mr Mowat’s employment.

[44] It was submitted that Mr Mowat was not notified of the reasons for his termination. I do not agree. He knew that it was alleged that he had taken goods 27 and on his own evidence he knew that Mr Lee denied giving him permission.28 Mr Mowat was notified of the reasons before to the decision to terminate his employment was made.29

[45] It was submitted that Mr Mowat was not provided with adequate information on which to rebut Mr Lee’s claims. This submission is contrary to the evidence. Before the decision to terminate his employment was made, Mr Mowat was given an opportunity to respond at the meeting on 8 July 2013. 30 On his own evidence he knew that Mr Lee denied giving him permission.

[46] Mr Mowat had a support person at the meeting on 8 July 2013. 31

[47] The dismissal did not relate to unsatisfactory performance. 32

[48] No submissions were made about the size of the business was relevant nor were there any submissions made about the absence dedicated human resources personnel.

[49] It was submitted that the decision to terminate Mr Mowat’s employment was harsh because of his particular circumstances. It was submitted that termination for theft has a significant impact on a person’s employment prospects. I accept that an employee sacked for theft will face difficulties obtaining other employment. However that does not lead to a finding of harshness.

[50] It was also submitted that terminating someone’s employment for taking rubbish is harsh. This is not a case of an employee removing something that he or she found in a rubbish bin. Here Mr Mowat decided which goods were rubbish and having made that decision decided to take the goods. Mr Mowat was in a position of trust. He had been put in the workshop which contained a lot of stock. He was trusted to throw out rubbish and organise the remaining stock.

[51] It was also submitted that Dyer Engineering failed to comply with its obligations under the Accident Compensation Act 1985. That Act puts an obligation on an employer to provide suitable alternative work for a period of 52 weeks. There was no evidence that until his dismissal Dyer Engineering did not comply with its obligations to provide Mr Mowat with modified duties. These obligations do not prevent the termination of employment of an employee for misconduct.

[52] It was put that Mr Mowat will have difficulty being rehabilitated because he no longer had employment. I accept that is true. However in all the circumstances I am unable to find that the decision to terminate his employment was harsh.

Conclusion

[53] This was not inadvertent conduct. Mr Mowat took goods knowing that he needed permission before he removed any goods from the workplace. There was a valid reason for the termination of his employment and he was afforded procedural fairness. While the impact on him is compounded by his injury that is not sufficient reason to find that the termination of his employment was harsh, unjust or unreasonable. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Dircks of Just Relations on behalf of the Applicant.

Mr Belmar of Counsel on behalf of the Respondent.

Hearing details:

2014.

January 28:

Melbourne.

 1   Exhibit A1 at [1]-[8]

 2   Exhibit R4 at [13]

 3   Exhibit A1 at [16]

 4   Exhibit R4 at [14]

 5   Exhibit R2 at [10]

 6   Ibid at [14]

 7   Exhibit A1 at [22]

 8   Exhibit

 9   Exhibit A1 at [25]

 10   Ibid at [20]

 11   Exhibit R4 at [17]

 12   Ibid

 13   Ibid at [18]

 14   Exhibit A1 at [33]

 15   Exhibit A1 at [26]

 16   Ibid at [35]

 17   Ibid at [25]

 18   Exhibit R4 at [19] and R2 at [29]

 19   Exhibit R4 at [20]-[23]

 20   Ibid at [26]-[27]

 21   Ibid at [30]

 22   Ibid at [32]-[33]

 23   Exhibit A1 at GM3

 24   Submissions of the Applicant 30 September 2013

 25   Exhibit A1 at [22]

 26   Section 387(a)

 27   Exhibit A1 at [39]-[47]

 28   Exhibit A1 at [54]

 29   Section 387(b)

 30   Section 387(c)

 31   Section 387(d)

 32   Section 387(e)

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