Kenneth John Allan v Glasemar Pty Ltd (t/a Mr. Bagels Fine Foods)
[1994] IRCA 86
•14 Oct 1994
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination of employment in contravention of Division 3 of Part VIA of the Industrial Relations Act - resignation - employee’s conduct in swearing at his managerial peers and leaving a management meeting before authorised to do so did not constitute resignation - summary dismissal - misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period - untruths - denial of responsibility - false attribution of blame on subordinate officer.
Industrial Relations Act 1988, SS170 DB, 170 DC, S170DE
Achal v Electrolux Pty Ltd [1993] 50 I.R. 236
Torbet v Commissioner for Public Employment [1993] 51 IR 445
Wilson v Australian Meat Holdings Pty Ltd unreported 23 June 1994 N.S.W. I.C.
Pamela Morey v St. Mary’s District Band Club unreported 24 June 1994 N.S.W. I.C.
Laws v Landon Chronicle Ltd [1959] 1 WLR 698.
Wilson v Racher [1974] ICR 428.
Pepper v Webb [1969] 1 WLR 514
Edwards v. Levy (1860) 2 F. & F. 94, 95
Janata Bank v Ahmed (QUTUBUDDIN)
Same v Same [1981] I.C.R. 791.
Printing Industry Employees Union of Australia v Jackson and O’Sullivan Pty Ltd [1958] 1.F.L.R. 175
Harmer v Cornelius (1885) 5 C.B.H.S. 236
P.I.E.U.
KENNETH JOHN ALLAN V GLASEMAR PTY LTD (T/A MR. BAGELS FINE FOODS)
No. VI-424/1994
Before: Ryan JR
Place: Melbourne
Date 14,17,19 and 20 October 1994
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI-424/1994
B E T W E E N: KENNETH JOHN ALLAN
AND:
GLASEMAR PTY LTD (T/A MR. BAGELS FINE FOODS)
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 28 OCTOBER 1994
1. BACKGROUND
The applicant seeks remedy for what he considers to be the unlawful termination of his employment by the respondent.
The respondent denies that there has been a termination in the sense of an act by the employer ending the employment. The respondent says the applicant resigned. The respondent also submits that if the Court does not find accordingly then any termination which might be held to have occurred was for valid reason and was not harsh, unjust or unreasonable.
The recent history of the respondent company from early March 1994 involves significant restructure. The applicant had only been working on this occasion for the respondent from 8 February 1994 and as part of the restructure was appointed as a production manager on 7 March. His employment ended on 9 May. He was thus employed by the respondent on this occasion for 3 months and one day.
The pressure placed on all managers to improve performance was part of the evidence given by witnesses for both parties. That pressure included regular statements by a newly appointed general manager at management meetings held always once a week and often twice a week. Those statements took the form of directions to particular managers to improve performance and it was not uncommon for the general manager to state to particular managers on particular issues that if they couldn’t fix certain problems the respondent would get managers who could fix the problem.
The applicant was one of several managers who was subject quite often to statements, directions or warnings of that type.
The events which brought about the ending of the applicant’s employment centre on Friday 6 May, Sunday 8 May and Monday 9 May. Those events are set out in this judgment.
2. UNDISPUTED EVIDENCE
As a result of undisputed evidence I make the following findings of fact.
Kenneth John Allan (the Applicant) was employed by Glasemar Pty Ltd (T/as Mr. BagelsFine Foods) (the Respondent) from 8 February 1994 to 9 May 1994.
The applicant appears to have been previously employed by the respondent but nothing turns on that. The relevant period of employment is 8 February to 9 May 1994.
The applicant is a qualified pastry cook. From 8 February to 6 March he was employed as a salesman. From 7 March to 9 May he was employed as a production manager.
He was one of two production managers. The other was Mr. Hank Vanderzee. Both were appointed as production managers on 7 March. A memorandum of appointment of that date addressed to H. Vanderzee and K. Allan and on the respondent’s letterhead reads as follows:
“Memo to H. Vanderzee K Allan
date 7/3/94
re employment as Production Manager
please be advised that your applications for the position of Production Manager has (sic) been successful.
Initially you will be on a trial period for approximately two months. Then your respective position will be re-evaluated..
A job description and salary details will be forwarded to you shortly.
Congratulations and welcome aboard
regards
Trevor Dick.”
Mr. Dick is the General Manager of the respondent company. He was himself employed by the respondent in late February or early March 1994. He has a background in restructuring companies, especially in the food industry. Prior to his present appointment he was working for an Accountancy firm and was specialising in company restructures and insolvency advice.
Mr. Don Cullen, Sales and Marketing Manager of the respondent company, has known Mr. Dick for some years and recommended his employment to one or more of the directors and owners of the company.
Mr. Dick has total operational control and reports to the Board monthly. He is responsible to the directors. He has been implementing a substantial restructure involving asset sales and changes in shareholders, directors and staff. The restructure began as soon as Mr. Dick was appointed. He was appointed to bring about major change and the change and restructure is continuing and has been under implementation from early March 1994.
The previous Production Manager finished on the day Mr. Dick started. About a week or so after Mr. Dick started as General Manager of the respondent company he appointed Messrs. Allan and Vanderzee as outlined in the memorandum of 7 March. The job description for each of them is as follows:
“Production Manager
Will be totally responsible for all factory activities. Will control supervisors and all departmental staff in relation to production. Will continually look at improving processes and products and will develop a close relationship with the management group reporting to the General Manager. As we are product driven this person is also a key organisational member. He will also report sideways to fellow departmental managers. The position also encompasses employee relations and this is a critical strength required by the incumbent. The position has the authority vested in it by the General Manager to have the authority to carry out the responsibilities of this area.”
The company operates a bakery twenty hours a day, seven days a week. There are four production areas or sections. They are:
(1)Kitchen
(2) Pastry Kitchen
(3) Bakery
(4) Frozen Pastry Section
The trial appointment of two production managers was to provide for management supervision over production during all operating hours. There does not appear to have been any requirement for each production manager to be on duty for a separate ten hours to provide hands on managerial supervision over the twenty hours of daily operation. Clearly, each production manager was responsible for a production shift which appears to have been in the order of ten hours. However, the hours of work of each production manager deliberately overlapped to allow for communication and control. The two production managers took turns in working and supervising early and late shifts. The precise details of the shift rosters of each production manager were not given and are not of any particular relevance.
Of the nine witnesses at the trial, seven were employees of the respondent. All the employee witnesses, including the applicant and Mr. Dick, gave evidence of regular warnings issued by Mr. Dick to the managers who reported to him. The seven witnesses (six were managers) gave undisputed evidence of these warnings. There was no evidence in detail as to the precise nature of the warnings given in management meetings but Mr. Dick and the other five employee witnesses who attended the meetings on a regular basis swore that Mr. Dick often told particular managers that they needed to fix problems under discussion and within their areas of responsibility or he (Mr. Dick) would get someone else to fix the problems and do the job.
Both the applicant and his production manager colleague, Mr. Vanderzee, agreed with the other witnesses that a lot of problems discussed at management meetings arose out of the production area and that on a number of occasions Mr. Dick issued general warnings to both production managers (as a group of two) to the effect that the problems had to be fixed or he would get production managers who could and would fix the problems.
It is undisputed that on Friday 6 May 1994 the applicant received information that a standing order for 800 or 900 loaves of bread for an organisation called Loafers had been cancelled. There is far less unanimity and clarity as to who conveyed the information to the applicant and as to what action was taken and by whom. It is also undisputed that on Sunday 8 May 1994 the 800 or 900 loaves were baked. In other words, for whatever reason, the production staff on duty on the Sunday acted as if the standing order still applied and had not been cancelled. The computer generated production schedule for Sunday 8 May 1994 is not available. In accordance with the general practice, this particular schedule appears to have been destroyed after a period of about three months (presumably in early or mid August.
The applicant was the responsible production manager on duty on Sunday 8 May 1994. His uncontested evidence is that the over-bake occurred while he was absent watching his son play football between midday and 2:00 p.m. Two other employee witnesses (Salisbury and Todaro) confirm that the applicant expressed this view to them later on the Sunday. I am satisfied that the applicant discovered the over-bake when he returned from the football match and that it is immaterial as to precisely when on the Sunday the over-bake occurred.
It is also undisputed that the applicant contacted Mr. Jerry Todaro, the Bread Sales Manager, by telephone at his home in Cranbourne on Sunday afternoon and asked whether Mr. Todaro could distribute the additional loaves. What happened thereafter is disputed and is covered in the context of disputed issues.
On the morning of Monday 9 May the applicant told Mr. Dick that there had been “a stuff up” and an over-bake of 800 or 900 loaves. The applicant’s evidence is generally consistent on this point with that of Mr. Dick in that the latter seemed to want to defer discussion of the issue to the normal management meeting scheduled for Monday afternoon. Mr. Salisbury also confirmed that this was the position taken by Mr. Dick on the Monday morning.
The evidence of six of the seven persons present at the commencement of the management meeting (Dick, the applicant, Vanderzee, Salisbury, Cullen and Donnelly) is that the over-bake was only briefly mentioned early in the meeting. The seventh manager present was Mark Radnall. He is responsible for quality control and was apparently unavailable to give evidence. Later, after the usual management reports, Dick left the management meeting. His reason for leaving is dealt with later in the context of disputed issues. Soon thereafter the applicant left the management meeting. Again, much of what happened is covered later in the context of disputed issues.
It is undisputed that some time later in the production office Vanderzee and Cullen were present when Dick put a white envelope on the desk in front of the applicant. The manner in which he produced the envelope is subject to some dispute but all three witnesses, including the applicant seem to accept that whatever words he used Dick was conveying the message that the applicant’s employment with the respondent was finished. All agree Dick demanded the keys to the applicant’s company car.
What happened thereafter was described in generally consistent terms by Vanderzee and Cullen and by the applicant (to the extent that the applicant has a clear recollection).
The evidence of Dr. Wong and Senior Constable Stanton was only relevant to these later events. Again, although neither was present, their evidence is consistent with events as described by Vanderzee, Cullen and the applicant.
Mr. Dick, acting on advice, chose not to answer questions on these later events and in fact he was warned by the Court that these were questions that he did not have to answer.
For reasons to be outlined in this judgment I do not consider that it is necessary to comment further on the later events.
3. DISPUTED ISSUES
The respondent’s primary position is that the applicant resigned as Production Manager after Mr. Dick left the management meeting on 9 May and after an angry exchange of words between the applicant and several of the managers at the meeting.
The applicant’s position is that his employment was terminated without notice, without cause, without reason and that the termination was unlawful, and harsh and unjust and unreasonable.
6 MAY 1994
The applicant claims that on Friday 6 May he and Vanderzee were told that the Loafer’s standing order for 800 or 900 loaves of bread was cancelled. The applicant claims he cannot remember who told him or whether he was told in the presence of Vanderzee or Vanderzee was told in his presence. The applicant claims that either he or Vanderzee told a production supervisor but he cannot remember which of them did it and he cannot remember which production supervisor.
On the other hand, Vanderzee gave evidence that he was not told and was not involved in telling a production supervisor. Todaro gave evidence that he received information from Loafers of the cancelled order and conveyed it directly to the applicant and to “Jean in the office”.
8 MAY 1994
The applicant gave evidence that after he discovered the over-bake he contacted by telephone an employee responsible for bread sales. He could not remember who it was when he was giving evidence but he could remember that the person lived in Cranbourne and that he rang a Cranbourne telephone number. Without doubt this was a telephone call to Jerry Todaro, Bread Sales Manager.
Mr. Todaro gave direct and precise evidence. He was an impressive witness.
The applicant swore that the person he contacted (i.e. Todaro) indicated that he would be able to distribute the over-baked bread. Todaro denies that he gave such an assurance. His evidence is that he told the applicant that he would not be able to distribute the over-bake. Todaro told the Court that this was primarily because “there are no fruit markets open on Monday” and apparently he had been able to dispose of over-bakes at fruit markets in the past.
Todaro also deposed that he drove his company van into the bakery late on Sunday afternoon and that in the evening when it was already dark he and the applicant delivered the 800 or 900 loaves to two Salvation Army Hostels one in Chapel St. and the other in Grey St., St. Kilda.
Warren Salisbury also gave evidence of seeing the applicant and Todaro leave with the bread on the Sunday evening.
The applicant denies that the bread was delivered to the Salvation Army or anywhere else on Sunday evening. Under cross examination the applicant said that he “did not take the 900 loaves to a charity” and that the bread “was still on the racks on Monday morning”.
I accept the evidence of Todaro and Salisbury. There are several direct conflicts between the evidence of the applicant and Todaro and I accept the evidence of Todaro.
9 MAY 1994
Dick, Cullen, Donnelly and Salisbury all gave evidence of the applicant stating at the management meeting that he had told “Adam” of the cancellation of the 800 or 900 loaves. “Adam” was the production supervisor who was on duty on the Sunday morning. Vanderzee’s evidence was consistent with this position but did not go quite that far. Vanderzee simply said that the applicant “started to tell his side of the story” and that Dick indicated that he would get Adam. All five of these witnesses at the management meeting agree that Dick made it clear that he was going to get Adam so that Adam could put his version of events to the management meeting. All five agreed that the management meeting was not over and that everyone present was expected to wait until Dick and Adam returned. All five gave evidence that the applicant became very agitated when Dick left the room and that various exchanges took place between the applicant and Donnelly and Salisbury and Mark Radnall (the Quality Controller). All five categorised these exchanges as requests or suggestions that the applicant explain the position and all five agree that the applicant specifically referring to Donnelly and Salisbury and generally referring to all of them used the words
`”fucking backstabbing cunts”.
They say he used these words more than once and was very agitated. They all agree that he indicated that he did not “have to take this shit” and gathered his papers and left the meeting.
All five agree that Adam told the meeting when he returned with Dick that he (Adam) had not been told of the cancellation of the 800/900 loaves and all agree that Dick was told of the applicant’s agitated reaction and the circumstances in which the applicant had left the meeting.
The applicant denies that he used most of the language attributed to him but concedes he said that he “didn’t have to take this shit”.
It is clear that Mr. Dick quickly brought the management meeting to an end. His evidence is that he treated the applicant’s reported comments and his action in leaving the management meeting without waiting to hear or face Adam’s version of events as a resignation. He also deposed that if the applicant had not resigned he would have terminated him “unquestionably”. He seemed to imply that while he was not present the language reported to him as used by the applicant to his peers of itself justified summary termination.
4. ASSESSMENT OF WITNESSES
Before proceeding with submissions from the applicant and respondent and findings by the Court it is useful to record the Court’s view of the 9 witnesses called during the trial. All witnesses except the applicant, Mr. Dick and Mr. Cullen are accepted as witnesses of truth. The two most impressive witnesses in terms of direct and precise evidence were in order Mr. Todaro and Mr. Vanderzee.
The Court detected some inconsistencies in the evidence of Mr. Dick and Mr. Cullen and suspects some rationalisation after the event in respect of the unfavourable assessment of the applicant’s performance in his two months as a production manager. Having said that, the Court accepts that neither was impressed with the applicant’s performance and that both, especially Mr. Dick had let the applicant know this in no uncertain terms. Nevertheless there is no evidence the 2 months review of performance mentioned in the appointment letter of 7 March had actually taken place.
In any instance in which the evidence of Mr. Dick or Mr. Cullen conflicted with the evidence of witnesses other than the applicant the Court has preferred the evidence of the other witnesses.
The Court found the evidence of the applicant most unimpressive.
He told the management meeting on 9 May that he had told Adam about the cancellation of the over-bake but in evidence cannot remember who was told or whether that particular production supervisor was told by him or Vanderzee. He denied on oath that he was involved in taking the over-baked loaves “to a charity” on the Sunday. The Court will comment further when making findings.
5. SUBMISSIONS FOR THE APPLICANT
Counsel for the applicant urges the Court to treat the evidence called by the respondent with some caution. It is suggested that the 5 witnesses who are still employees might find it difficult to give evidence prejudicial to Mr. Dick. Firstly, two of those witnesses were called by the applicant, Vanderzee and Cullen. Secondly, the Court has already given an assessment of the witnesses and sees no reason to conclude that Vanderzee, Todaro, Salisbury or Donnelly gave evidence with fear or favour.
Counsel for the applicant then rejected the proposition that his client resigned. Again this is dealt with in the findings.
Counsel for the applicant also argued that even if much of the applicant’s evidence is rejected the manner in which his employment concluded was harsh, unjust and unreasonable and was a contravention of Division 3 Part VIA of the Industrial Relations Act 1988. He claims it was incumbent on a reasonable employer to speak further with the applicant after he was discovered to have left the management meeting.
For reasons for which are apparent from the findings I have not found it necessary to consider the case of a resignation tendered in a state of emotional stress or any possible withdrawal of a purported resignation. Because it was cited I have considered Achal v Electrolux Pty Ltd [1993] 50 I.R. 236 but it is of no assistance.
Counsel for the applicant submits that even on the version of the facts most unfavourable to his client summary termination was not justified and that none of the issues or any combination of them justified termination of employment. He included general reported dissatisfaction with performance in a workplace with widespread problems, the actual over-bake which may not have cost the company more than about $370.00, the failure of the respondent to put to the applicant Adam’s denial of being told of the cancelled order, the applicant’s language in the management meeting and the applicant leaving the management meeting without authorisation.
Counsel for the applicant argues none of these matters or any combination of them justified summary dismissal and that therefore a termination without the opportunity for further and better consultation was harsh and unjust and unreasonable.
Counsel submitted the employer must be flexible enough to accommodate employees under stress and claimed the applicant was under stress. He cited Torbet v Commissioner for Public Employment [1993] 51 IR 445 where among other issues the Industrial Commission of South Australia considered whether a Commissioner at first instance considered evidence of stress and whether stress offered a reason why a long serving employee with no history of violence should suddenly have acted in a clearly inappropriate manner. Of course here it is not a matter of a long serving employee and it is not a matter of violence but other alleged inappropriate behaviour including deception, blaming a subordinate, denying or refusing to accept management responsibility, swearing and leaving an important management meeting before authorised to do so.
I will say no more at this stage other than that the Court has considered and accepts that the applicant was under stress from the time he discovered the over-bake on Sunday and was certainly under stress when he reacted inappropriately under vigorous questioning from his peers at the management meeting on the Monday afternoon.
6. SUBMISSIONS FOR THE RESPONDENT
The primary submission was that the applicant had resigned. Wilson v Australian Meat Holdings Pty Ltd, an unreported decision of the Industrial Commission of New South Wales 23 June 1994 and Pamela Morey v St. Mary’s District Band Club also an unreported decision of the NSW Commission 24 June 1994 were both cited.
Both cases are distinguishable. In Wilson the employee was held to have resigned after quite specifically referring to his job and advising the employer in direct and earthy terms what to do with the job. In Morey the employee left the place of employment. In fact she walked out leaving an unattended till. She also used language which referred specifically to what her employer could do with the workplace, in that case a licensed club with gaming machines and keno facilities.
In this case I do not accept a comment by the applicant that “I do not have to take this shit” as an intention to resign. I do not accept an allegation to his peers of “backstabbing” accompanied by colourful and inappropriate nouns and adjectives as part of a resignation and I do not accept the applicant’s unauthorised and premature departure from the management meeting as a resignation. The applicant did not leave the work premises. He returned to his own office.
The respondent’s alternative submission is that if the ending of the employment is held to be a termination it was a termination for valid reason. It is claimed to be serious misconduct of a kind such that it could be unreasonable to require the employer to continue the employment during the notice period. It is also claimed to be conduct of a kind where the employer could not reasonably be expected to give the employee any further opportunities after the management meeting to defend himself against the allegations.
The solicitor for the respondent also seemed to argue that a summary termination was valid not just because of conduct but also because of capacity and that the applicant had demonstrated a substantial lack of capacity by failing to take appropriate steps to prevent an avoidable over-bake of bread.
The respondent’s solicitor cited
(1)Laws v Landon Chronicle Ltd [1959] 1 WLR 698.
(2) Wilson v Racher [1974] ICR 428.
(3) Pepper v Webb [1969] 1 WLR 514
However, while the cases were useful the circumstances were all different. In Laws a single act of disobedience was held not to justify dismissal. In Wilson a solitary case of obscene language did not justify summary dismissal. In Pepper there was said to be “a background of previous disobedience and insolence”.
In fact Wilson at 430 points out cogently why it is that each case must always turn on its own facts.
“There is no rule of thumb to determine what misconduct on the part of a servant justifies summary termination of his contract. For the purpose of the present case, the test is whether the plaintiff’s conduct was insulting and insubordinate to such a degree as to be incompatible with the continuance of the relation of master and servant: per Hill J. in Edwards v. Levy (1860) 2 F. & F. 94, 95. The application of such test will, of course, lead to varying results according to the nature of the employment and all the circumstances of the case. Reported decisions provide useful, but only general guides, each case turning upon its own facts.”
Two cases were also cited as part of an argument that summary termination was wholly or partly justified on the grounds of a lack of capacity. The argument is categorised in that way because it was not clear to the Court that the respondent sought to justify summary termination (if resignation was rejected) on the basis of lack of capacity alone but rather on the grounds of misconduct alone or misconduct and incapacity.
The cases cited were
Janata Bank v Ahmed (QUTUBUDDIN)
Same v Same [1981] I.C.R. 791.
Printing Industry Employees Union of Australia v Jackson and O’Sullivan Pty Ltd [1958] 1.F.L.R. 175.
Janata was not of assistance. In that case it was held on the evidence that the employee had terminated the contract of employment and the employee’s claim for wrongful dismissal failed. The case was cited (page 795) for the reliance on an old principle in “Harmer v Cornelius (1885) 5 C.B.H.S. 236 and 246 that “when a skilled labourer, artisan or artist is employed, there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes”.
I do not accept that the applicant breached some implied warranty as to his skill.
P.I.E.U. is authority for the proposition that at common law an employer has a right to dismiss summarily if the employee held himself as possessing a skill which he did not in fact possess. There is no evidence the applicant held himself out as possessing a skill he did not possess quite apart from the relevance of the principle, if there be any, in justifying a dismissal as valid within the terms of the Industrial Relations Act 1988.
The validity of this termination if it was a termination turns on findings on the facts.
7. FINDINGS
The termination was not a resignation.
Mr. Dick terminated the applicant’s employment when he handed him the white envelope in the production office.
The applicant lied when he denied the loaves were disposed of on the Sunday night.
The applicant has given an inconsistent version of what happened in the management meeting.
The applicant does not appear to have taken a sufficiently serious approach to the oral warnings about the need to improve quality and other production problems. I do not consider that those problems, or his attitude to them, warrant termination.. Nevertheless these matters are part of a pattern that needs to be taken into account.
In my view “Adam” should have been called but I accept the evidence of the five managers at the management meeting that Adam denied that he was told of the cancelled order and I have concluded that in fact the applicant did not tell him.
The applicant’s evidence at trial was unimpressive. I accept that he told the management meeting that he had told Adam of the cancellation of the order. Yet, at trial, he said he could not remember which production supervisor was told and he could not remember whether the information was conveyed by himself or Vanderzee but that it was conveyed by one or the other.
I accept without question the evidence of Vanderzee that he was not told of the cancellation of the order and he was not present when the applicant was told.
I accept the evidence of Todaro that he told the applicant on Friday 6 May and he also told “Jean in the office”.
In my view a system where changes of this significance are not necessarily reflected in the production schedule used in the bakery is a system fraught with risks. It would make sense to physically alter a schedule in such circumstances. Computers are a boon but if information is altered after printout and the printout is to be used the printout should reflect the alteration. There is no evidence that the printout was altered in this case and it is impossible to check because the printout or schedule has been destroyed. However, all the evidence, except that of the applicant suggests that the schedule still contained the order and because the applicant failed to tell the production supervisor the over-bake occurred.
The applicant seems to have claimed that the schedule did not contain the Loafers standing order. I am surprised Mr. Dick did not call for and examine the schedule but I do not accept the applicant’s suggestion that the schedule excluded the standing order and I do not accept the applicant’s inference that somehow Adam baked the additional loaves even though the standing order was allegedly deleted from the schedule. The most likely situation is that the schedule contained the standing order and Adam in good faith acted on it and baked the loaves.
The warnings to the applicant to improve performance, the swearing at the management meeting, the failure to tell Adam of the cancelled order, the over-bake of bread, the distribution of the loaves on the Sunday night to the Salvation Army and the possibility that this was at first planned to hide the over-bake - none of these activities in combination or alone justify a summary termination of the applicant without notice and without further consultation with the applicant. However, if there are matters which justify summary termination these are matters which once considered could strengthen a case of legitimate summary termination.
I consider the following matters constituted serious misconduct and justified termination:-
(i) the untruths told to the general manager and the other managers at the management meeting that Adam had been told by the applicant of the cancellation of the Loafers order
(ii) the false attribution of blame to a subordinate officer
(iii) the failure to stay at the management meeting and argue mitigation and perhaps apologise for the over-bake and at least accept responsibility for it
The decision to terminate was made by Mr. Dick when he directed that a final cheque be drawn up and was implemented when he passed over the white envelope saying in effect that it was “finishing pay” or that “the applicant was finished”. It follows that certain wholly inappropriate conduct of Mr. Dick soon thereafter is irrelevant to a determination in this matter.
The termination was not harsh unjust or unreasonable. The application for remedy should be dismissed.
8. ORDER
The application for remedy pursuant to Section 170EA is dismissed.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : October 25, 1994.
Appearances:
Counsel for the Applicant : Mr. Chris O’Grady
Solicitor for the Applicant : Arnold Thomas & Becker
Solicitor for the Respondent : Ms. Tanya Cirkovic
Date of Hearing : 14,17,19 and 20 October 1994
Judgment : 28 October 1994
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