Jason Glanz v Devilbend Golf Club Incorporated
[2015] FWC 1905
•4 MAY 2015
| [2015] FWC 1905 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Glanz
v
Devilbend Golf Club Incorporated
(U2014/16663)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 4 MAY 2015 |
Application for relief from unfair dismissal - alleged ‘golf ball swap’ - alleged use of club accounts for personal repair business - alleged breach of employer directions as to financial accounts.
[1] On 22 December 2014 Mr Jason Glanz lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (‘the Act’). He was summarily dismissed on 12 December 2014.
[2] The matter was conciliated and no agreement was reached. I heard the matter on 19 March 2015.
[3] The following witnesses gave evidence:
Mr J Glanz
Mr G Wilkins
Mr G Groves
Mr G McIntosh
Mr J Churches
Mr T Bolden
[4] I have taken account of all submissions and evidence put in the matter.
[5] The Club alleges that Mr.Glanz took the benefit of Club funds and staff to conduct his personal golf club repair business, and other allegations. Mr.Glanz submits that he contributed free Golf balls to compensate the Club for these benefits, although he does not identify anyone who authorised this ‘golf ball swap’ or knew about it. He provided a variety of responses to the employer allegations, including claims of procedural unfairness.
Section 387(a) - Valid Reason
[6] The term ‘valid reason’ was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 1, in relation to s.170DE of the Industrial Relations Act 1988. He said:
“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is ‘sound, just or well founded; a valid reason.’
In its context in s. 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s170DC.”
[7] The employer alleges that the applicant received the benefit of goods purchased by it without authorisation 2. The applicant submits that there was a ‘golf ball swap’ to the effect that the applicant contributed golf balls to the club which were of value3.
[8] The applicant provided an explanation for his conduct, which included an alleged ‘golf ball swap’. He was provided with a document entitled ‘Transaction Audit Dec 2014’ 4. During cross examination Mr.Glanz in effect conceded that there were approximately 198 grips bought by the Club for the repair business, costing about $1,528.205 if the documents are correct. The applicant questioned three of the items in the summary of transactions at p.11 of the document, stating that the first two p.11 items were golf shafts approved by Gordon Groves, while the third item was a transaction for which ‘there would be corresponding club income recorded’. Mr.Groves said that he did not approve any request by Mr.Glanz to order golf club shafts for the repair of golf club sets that the Club has available for hire, and he was certain of this because his usual practice was to allocate these expenses to a repair expense account6. In cross examination he agreed that Mr.Glanz may have repaired the hire sets of the golf club but he did not recall that7. I do not accept Mr.Glanz’s claim that Mr.Groves approved golf club shafts. I prefer the evidence of Mr.Groves.
[9] Mr.Glanz gives a range of explanations for 14 transactions claimed by the employer to be inappropriate including but not limited to the following. Transactions 1, 2, 3, 4, 5, 6, 10, 12, 13, 14, were paid for in part or whole by him through the golf ball swap arrangement 8. He also states that when he did golf ball in lieu transactions the club received more than the correct amount of cost plus 6%9. He also gave evidence that some grips had not yet been used and were transferred to his personal account for payment (transactions 7, 8, 9), transaction 12 was also transferred for payment, and with respect to transaction 11 he could not recall and it may have been an accounting error. He also puts other submissions such as that not all invoices were provided10. Overall the challenge made is that:
‘Mr.Glanz has provided clear explanations of the transactions not accounted for by the golf ball swap that reconciled at the end of his employment.’ 11
[10] The applicant claimed that it was not put to him that the golf ball swap did not occur 12. In fact it was put during cross examination that ‘you’re lying, the golf ball swap never occurred’13.
[11] The applicant gave evidence that ‘the agreed process over the previous four years was that I would return golf balls into the shop.’ 14 However, during cross examination he said that the statement that this was ‘agreed’ was ‘wrong’ and a typographical error, and that he told a meeting at the Club that he had not told anybody15. This seems to be a change of evidence. He seems to say that at some stage this was agreed and authorised, but what stage is not clear at all16. It is either an authorised swap or not. It appears that no-one else knew about the golf ball swap, and all deny it, and there appears to be no record of it in the Club accounts.17 In fact the applicant’s evidence appears to be contradictory. He also states that he did not tell Messrs. Groves or Bolden about the arrangement18. If this is the case then there is little or no basis I can see that it is an appropriate authorised arrangement. If, in the alternative, he does not claim that it was an arrangement authorised by the Club then it is not an appropriate arrangement to be implemented by him, and is no defense against the employer claims.
[12] I am not satisfied that the golf ball swap occurred. I had the opportunity to observe the witnesses giving evidence and I do not accept the applicant’s evidence, including his explanations for the transactions above. I prefer the evidence of other witnesses giving contrary evidence. The applicant’s evidence is somewhat contradictory and unlikely. Even if a golf ball swap did occur on some or all occasions claimed to some degree it was not authorised, and was not appropriate. It was a reason given by the applicant to justify his conduct.
[13] The employer alleges that the applicant took the benefit of free labour from employees of the Club when engaged in a repair business at the Club 19.
[14] The applicant’s contract of employment provided that the terms of engagement included the following:
‘Repairs: All income less 106% of cost of inputs.’ 20
[15] The applicant accepted during cross examination that cost inputs included goods and labour, and that two employees, Messrs.Churches and McIntosh did some of that work 21. In my view no reasonable explanation was put as to why such labour would not be a cost of input within the terms of the contract. A valiant attempt was made by the applicant to maintain that his understanding was different at the time and other explanations22, but with respect I was not persuaded by these explanations. The applicant received the benefit of inputs without complying with the terms of his contract.
[16] The employer submitted that the applicant lied to the President and Treasurer of the Club about the golf ball swap, which did not occur, and lied as to whether Club accounts were being used to purchase repair items 23. The issue of the applicant’s statements to the President and Treasurer about the golf ball swap are dealt with above. I am satisfied that the applicant told the employer that there was a golf ball swap when it never occurred.
[17] Mr.Bolden gave evidence that on 13 November the applicant did not concede any purchases 24. He also gave evidence that the applicant told the meeting on 30 October 2014 that there were no costs associated with his lessons or repairs ‘that were being borne by the Club. Mr.Glanz again said that there were none’.25 This was denied by the applicant26. Mr.Wilkins conceded in cross examination that on 13 November 2014 the applicant acknowledged that there were repair items being bought through the Club’s accounts but that before that he ‘had insisted that there were no inputs, meaning nothing had been bought on the club’s accounts for his repair business’27. I also note the applicant’s handwritten notes of the meeting28 and evidence29.
[18] I had the opportunity to observe the witnesses giving evidence and prefer the evidence of Mr.Bolden. In my view Mr.Glanz did not tell the meeting the meeting of 30 October or 13 November 2014 that there were costs borne by the Club for his repair business.
[19] The employer submitted that the applicant refused to follow a direction given on 10 October 2014 and 30 October 2014 by the Treasurer as to the accounting procedure to be adopted with respect to lesson and repair income 30. Mr.Bolden gave evidence that he gave this direction on 10 October 2014 and 30 October 2014, and that the applicant refused to follow the direction31. The meetings of 10 and 30 October were Finance Committee meetings. The applicant was directed by the General Committee and complied32.
[20] The applicant’s contract of employment variously provided that the applicant was to implement the ‘General Committee’s instructions’, report ‘to the General Committee’, and so on 33. Exhibit D1, the Organisational Chart of the club, appears to indicate that the Finance and Development Committee reports to the General Committee and the General Manager reports to it. Exhibit G2 is a document adopted by the Club’s General Committee and provides that the Treasurer is to ‘Establish the necessary accounting, book keeping and control procedures for proper financial management’.
[21] In addition the Treasurer acted with the support of the Finance Committee and its members including the President. The applicant was required to comply with delegated authority such as that possessed by the Treasurer. In my view the applicant breached a lawful and reasonable employer direction.
[22] There was a valid reason for termination of employment.
Section 387(b) - Notification of the reason
[23] Mr.Glanz was notified of the valid reason in the letter of termination 34.
Section 387(c) - Opportunity to respond to any reason
[24] The applicant makes a number of criticisms of the procedures followed in terminating his employment. Mr.Wilkins gave evidence about the conduct of the interview on 13 November 2014, following which the applicant was terminated. The applicant provided an explanation for his conduct, including the alleged ‘golf ball swap’. He was provided with a document entitled ‘Transaction Audit Dec 2014’ 35. It took him approximately 9 minutes to go through the document during cross examination and comment on each page36. The document was in the room with him during the break in the meeting which was at least 20 minutes37. As previously stated, in effect he conceded that there were approximately 198 grips bought by the Club for the repair business, costing about $1,528.2038 if the documents are correct.
[25] The applicant complains that he did not have an opportunity to read the audit document 39. However, he could have read it during the break. In any event Mr.Glanz, the applicant concedes that he had the opportunity to read the document during the 20 to 25 minute adjournment, on his own case40. He complains however that he was not given an opportunity to speak to it. Mr.Wilkins denied that he asked to respond to the document41 as did Mr.Bolden42. The written notes of the meeting prepared by Mr.Moloney record that Mr.Glanz asked ‘Can I even get a chance to respond to this (the written document only provided at commencement of the meeting)’43. This suggests that he did ask for that opportunity and was denied it. The applicant complains that neither Mr.Bolden nor Mr.Wilkins asked Mr.Glanz (the applicant) whether he had anything to say44. This is not consistent with the evidence of Mr.Wilkins who said that he was asked ‘whether he had anything else to say or wanted to know anything, and the answer was no’45.
[26] In my view there were a number of procedural failings in giving Mr.Glanz an opportunity to put a case. However, some degree of opportunity to put a case and respond to the issues was given to Mr.Glanz, and he availed himself of it by explaining the golf ball swap. His analysis of the audit document given to me was not in my view credible, and did not advance the matter much further. It was not an answer to the complaints about his conduct. Overall even if more time or notice had been given it would not have made an appreciable difference. There is some degree of force in the employer submission that Mr.Glanz actually put his best case at the time of the meeting, and it continues to be his case 46. Nevertheless the Club should have given greater opportunity to Mr.Glanz to put a case.
Section 387(d) - Support person
[27] There was no unreasonable refusal to allow a support person to be present.
Section 387(e) - Warnings about unsatisfactory performance
[28] The matter related to misconduct not unsatisfactory performance.
Section 387(f),(g) - Size of business, human resources specialists
[29] This appears to be a smaller business, without human resource specialists, run by volunteers.
Section 387(h) - Any other matters
[30] I have taken into account all the material put to me.
Conclusion
[31] The employer is entitled to take a strict approach to accounts and mingling of personal and business finances and benefits. In my view Mr.Glanz was accorded a ‘fair go all round’. His termination was not harsh, unjust or unreasonable. I dismiss his application.
DEPUTY PRESIDENT
Appearances:
Ms G Berlic of counsel for the applicant.
Mr A Aleksov of counsel for the respondent.
Hearing details:
2015
Melbourne
19 March
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