Grujovski, D. v Malouf Industries (Vic) P/L

[1992] FCA 590

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IN THE FEDERAL COURT OF AUSTRALIA	)	I
1	I

VICTORIA DISTRICT REGISTRY	1	NO. V1 12 of 1992	r
1	' 7
INDUSTRIAL DIVISION	1	. .

BETWEEN:

DIMTRIJA GRUJOVSKI	I .	_ ;
l

(Applicant) !.

- and -

MALOUF INDUSTRIES (VIC.)

PTY. LTD.	I
(A.C.N. 006 224 362)	I I . , -
I ;

(Respondent) .

MINUTES OF ORDER

JUDGE MAKING ORDER:	Keely J
ORDER MADE:	Melbourne
DATE ORDER MADE:	14 August 1992
THE COURT ORDERS THAT:

REGISTRY

GENERAL DISTRIBUTION NOT REOUIRED

The application be dismissed.

Note-

-- Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

RECEIVED

AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICMRIA DISTRICT REGISTRY	1	NO. V1 12 OF 1992
1
INDUSTRIAL DIVISION

BETWEEN:

DIMITRIJA GRUJOVSKI

(Applicant)

- and -

MALOUF INDUSTRIES (VICl ~p

PTY. LTD.

(A.C.N. 006 224 362)

(Respondent)

REASONS FOR JUDGMENT

14 August 1992 Keely J Dimitrija Grujovski ("the applicant") has alleged that Malouf Industries (Vic.) Pty. Ltd. ("the respondent") breached the Metal Industry Award in that its dismissal of him on 12 July 1991 was harsh, unjust or unreasonable, and that the	respondent failed to give him the appropriate notice. Other	issues of fact and law were raised, including the question
whether terms of the award were implied terms of the contract of employment and a claim for damages.
By the end of the second day of the hearing it was clear that the case could not be completed in the three days which had been allotted to it in accordance with the estimates of both parties. The court then informed the parties (transcript 192

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f

j. L.'

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line 14) that at the end of the evidence it would hear submissions on the question whether the dismissal was harsh, unjust, or unreasonable. The court has not heard submissions on other issues, including the question of whether terms of the award were implied terms of the contract and the applicant's claim for damages.

The court makes the following findings:

(1) The applicant had been employed by the respondent for 18 years, had performed his duties well and, in 1985, was made a foreman.

(2) His duties included receiving, reading and making up orders, which duties he performed over many years without difficulty.

(3) He was competent in the English language and had

sufficient command of the language to be able to

dealing on work matters with managers, fellow	speak in English and to understand English when
employees and customers.

(4) In November 1990 the applicant gave some folded steel, owned by the respondent, to a truck driver. He was reprimanded for that action and told by M r Bow (par. 9) "that his action constituted theft which would result in his dismissal if it continued".

( 5 ) He knew that it was "wrong for an employee to give

away the employer's goods to people who have not
paid for them". (transcript 26 line 21).

(6) He admitted in his evidence that he knew that only

W Bow or Mr Malouf could authorise the giving away

of unordered goods to persons. He also said that he "was told much earlier" and "knew that any action of that kind on [his] part would lead to dismissal". (transcript 27 lines 24 and 28).

(7) In February 1991 he denied to Mr. Bow that he had given to any customer products additional to those ordered by the customer. He was again told by Mr. Bow that customers could only be supplied with the products which were on the order form.

(8) On 12 July 1991 the applicant was given an order

form ("the order").

(9) The applicant knew that if he could not read an order form he should .ask the sales staff for clarification. He said in evidence (transcript 77) that he told the office staff or a manager if he did not understand an order but that he did not do so in relation to the order on 12 July 1991.

(10) The "wall sheets" item on the order had been made up at least two days before the order was placed with the respondent on 11 July 1991. I infer that it was so made up by the applicant.

(11) The applicant, using the order, made up the first eight items on it for delivery.

(It should be noted that paragraph ll(b)(i) of the

respondent's defence referred to "10 items" but Mr.

Bow explained (transcript 257 line 16) that the

applicant only prepared 8 of the 10 items on the

order; the other 2 items were not prepared by the

applicant but were given to the truck driver at the

.

sales office at the time when he was given the

invoice for the items for delivery).

(12) In respect of four of those eight items the

quantities prepared by the applicant for the

the discrepancies were all in favour of the customer	delivery truck were greater than those ordered i.e.
(or "positive", as Mr. Bow expressed it in his evidence).

(13) As to another of the eight items the applicant prepared goods that were 1st grade although "seconds" had been ordered and paid for.

(14) Mr Bow followed the delivery truck and ordered that it return to the respondent's premises without delivering the items. On the return of the delivery truck the items in the order were counted out in the presence of the applicant. He did not query the accuracy of the count; the only explanation given by him was that he had "made a mistake".

(15) An interview of the applicant, lasting at least 45 minutes, was conducted by Mr Bow and Mr Malouf shortly after the counting of the items in the applicant's presence. During that interview the applicant's attention was drawn to each of the five items referred to in 12 and 13 above. When asked to explain why products which had not been ordered had been included he shrugged and offered no explanation, other than to maintain his assertion that he had "made a mistake".

(16) The applicant understood what was being put to him in the course of the interview and did not say at any time during that interview that he did not understand any part of what had been said to him.

I accept Mr Bow's evidence in cross-examination that "I've no doubt that he understood exactly what: was going on and what was being said" (transcript 231 line 28). I also accept the lengthy answer of Mr. Bow, during a vigorous and lengthy cross- examination, to the question "how did you know he understood what was being put to him, Mr. Bow?" (transcript 232 lines 1-27). It may be added that the applicant's answers to four questions asked by his counsel in re-examination (transcript 114 lines 14-29) support the view that he did in fact understand what was said to him at that interview.

(17) In deciding to dismiss the applicant, Mr. Bow and Mr. Malouf had regard to matters which included the warnings given previously to the applicant, his failure to give any plausible explanation and the fact that one of the items in the order had been made up in advance of the order being received.

(18) They also had regard to the likely adverse effect upon discipline at their work premises if they decided not to dismiss the applicant, having regard to the fact that other employees knew that Mr Bow

had ordered that the truck return without delivering	the items, knew that five of the eight items
prepared by the applicant contained additional products that had not been ordered, and knew that no plausible explanation had been given by the applicant (transcript 241).

(19) In considering whether to dismiss the applicant they took into account, in his favour, the length of his service and the fact that he was one of their best workers; those matters also influenced them in deciding not to send for the police.

(20) The respondent gave proper consideration to the

applicant's request for reconsideration of his
termination.

It should perhaps be added that I accept Mr. Bow's answer, during cross-examination by the applicant's counsel (transcript 243 lines 28-31):

"Ate you sure, Mr Bow, you had not decided to terminate Mr Grujovski's employment some time before these incidents arose?---Not at all. We were hoping like hell it was only the sheets so that reprimand was what would happen and Jim would still have his

job. "

There is no foundation in the evidence for any suggestion that the respondent was looking for an opportunity to dismiss the applicant.

dismissing the applicant the respondent, through its officers	I uphold the submission of the respondent's counsel that, in
Messrs Bow and Malouf, held an honest belief that the applicant had engaged in misconduct in that he had deliberately made up the order with the additional product as to four of the items and with 1st grade material instead of second grade material for one item. They had reasonable grounds for that belief, which had been formed after an investigation of the matter which was reasonable in the circumstances.
I have made due allowance for the fact that the applicant gave evidence through an interpreter. However, having observed him giving evidence and being cross-examined, I have reached the conclusion that the goods which were included by him, for delivery on 12 July 1991, which had not been ordered (see 12 and 13 above), were deliberately included by him and could not be attributed to any mistakes by him. I accept the evidence of Mr. Bow, during cross-examination, that:

"There is no way that a person with his experience could make a mistake on five items out of eight, and all positive". (transcript 235 line 27-29).

I have considered the affidavit evidence of Mr. Papas, an optometrist, who examined the applicant on 26 July 1991 and diagnosed him as suffering from presbyopia. Mr. Papas was not cross-examined. However, on all the evidence I have no doubt that the applicant correctly read the terms of the order.

In my opinion the applicant, in including those goods, was

guilty of conduct justifying instant dismissal.

It will be clear from the findings set out above that the court has been unable to accept the applicant's evidence on important matters. It may be added that some of his evidence conflicted with matters expressly conceded by his counsel in his opening address (see transcript 11-12).

I have considered the grounds upon which it was contended that

the dismissal was harsh, unjust or u~easonable (see paragraph 3 of the further and better particulars filed by the applicant). In my opinion none of them has been shown to exist on the evidence before the court.

It follows that the applicant has failed to show that his dismissal was harsh, unjust or unreasonable; nor has he shown that the respondent failed to provide him with the appropriate notice (statement of claim paragraphs 11 and 13).

For the foregoing reasons the application is dismissed.

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I certify that this and the

eight (8) preceding pages are a true copy of the Reasons for Judgment of Mr Justice Keely.	I .
;.
Associate:	i

Dated: S;- i(77 2-.

Counsel for the Applicant	Mr. I.R. Fehring
Solicitors for the Applicant	Novatsis & Alexander
Counsel for the Respondents	Mr. R.R.S. Tracey QC
with Mr. M.P. McDonald
Solicitors for the Respondents	Phillips Fox
Dates of Hearing	3,4,5,6,7 August 1992.
Date of Judgment	14 August 1992