Leslie Hocking v AG Implement Merredin T/A AG Implements

[2015] FWC 2111

[2015] FWC 2111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leslie Hocking
v
AG Implement Merredin T/A AG Implements
(U2014/9963)

COMMISSIONER WILLIAMS PERTH, 30 MARCH 2015

Termination of employment.

[1] This matter involves an application made by Mr Leslie Wayne Hocking (Mr L. Hocking or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is AG Implement Merredin T/A AG Implements (the respondent).

Background

[2] The applicant began employment as a Yardman on 3 September 2013 at the respondent’s Narembeen Branch. His brother Mr Troy Hocking (Mr T. Hocking) began employment as the Service Manager of the Narembeen Branch on 19 March 2012.

[3] Mr Jarrod Crabbe (Mr Crabbe) was employed at the Narembeen Branch as a Casual Labourer from around 24 April 2014 until 8 May 2014.

[4] The Respondent kept a cash box in an office on the respondent’s premises at the Narembeen Branch. This was common knowledge amongst the respondent’s employees. This cash box went missing sometime between 2 and 9 May 2014.

[5] On Sunday, 25 May 2014 Mr T. Hocking told the Manager of the Narembeen Branch Mr Ronald King (Mr King) that Mr Crabbe had told him that he and the applicant had stolen the cash box.

[6] Subsequently Mr King met with the applicant and told the applicant that the respondent believed that he and Mr Crabbe had stolen the cash box and that the applicant’s employment would be terminated.

[7] The applicant’s only response was a bald denial to the effect of “I didn’t fucking do it”.

[8] The respondent terminated the applicant’s employment with immediate effect.

Factual findings

[9] Mr L. Hocking gave evidence on his own behalf.

[10] For the respondent Mr King and Mr Mitchell Miolini (Mr Miolini) the current Service Manager at the Narembeen Branch gave evidence.

[11] A written statement from Mr Crabbe was provided to the Commission by Mr L. Hocking 1.HoweverMr Crabbe was not present at the hearing to swear to the truthfulness of the statements or to be cross-examined.

[12] Considering the witness evidence I make the following findings of fact.

[13] The respondent’s business is an agricultural machinery dealership that sells and services agricultural machinery in Merredin in the eastern wheat-belt of Western Australia. The respondent has around 100 employees and eight branches one of which is Narembeen.

[14] Mr King is the Manager of the Narembeen Branch, which has nine employees at the time of hearing.

[15] Mr L. Hocking began employment as a Yardman on 3 September 2013. His brother Mr T. Hocking began employment as the Service Manager of the Narembeen Branch on 19 March 2012.

[16] Mr Crabbe was employed as a Casual Labourer from on or around 24 April 2014 until 8 May 2014.

The cash box

[17] The respondent kept a cash box in an office on the respondent’s premises. This cashbox including the contents of approximately $700 went missing sometime between 2 and 9 May 2014.

[18] Because there was no apparent forced entry to the office containing the cash box, the respondent believed it had been stolen by someone with access to the office during the period 2 and 9 May 2014, most probably one of the respondent’s employees as no-one else had access to that office.

[19] Mr King reported the apparent theft of the cash box to the police on 9 May 2014.

[20] On Friday, 23 May 2014, Mr King held a toolbox meeting with all branch staff. Mr King told them that the cash box had been stolen and that it was suspected that an employee had taken it. He asked for anyone with information on the matter to come forward.

[21] Mr L. Hocking did not attend for work on this day. Mr King was unaware he was not going to attend however Mr L. Hocking’s evidence which I accept is that before work that morning he rang his brother Mr T. Hocking the Service Manager and told him he would not be attending for work.

[22] On Sunday, 25 May 2014 Mr T. Hocking, the applicant’s brother, came to Mr King’s home and explained that Jarrod [Mr Crabbe] called him and said that he was feeling guilty because he had stolen the cash tin with Mr L. Hocking, the applicant. Mr T. Hocking told Mr King that Mr Crabbe said he had driven the car as the applicant Mr L. Hocking didn’t have a license and they had broken open the cash box because they didn’t have the key to the cash box before they dumped the cash box in some bushes on Latham road.

[23] Subsequently Mr King went looking for the cash box with Mr T. Hocking and his wife in the area where Mr Crabbe said it was supposed to have been dumped but they did not find the cash box.

[24] Mr King says he did not contact Mr Crabbe and question him on the theft of the cash box because he was no longer employed by the respondent and he had confessed to Mr T. Hocking that he had stolen the cash box.

[25] The next day Monday, 26 May 2014 Mr King reported what he had been told by Mr T. Hocking to the police.

[26] Later that day Mr King went to see the applicant Mr L. Hocking and said to him “Troy told me that you and Jarrod stole the cash tin. We are going to terminate your employment immediately”.

[27] Mr King’s evidence was that Mr L. Hocking’s only response was “I fucking didn’t do it” and then he left the premises.

[28] The respondent terminated the applicant’s employment with immediate effect.

[29] Mr L. Hocking’s evidence was that he had no knowledge of the cash box being missing until his brother had told him it was missing.

[30] Mr L. Hocking vigorously denied that he had stolen the cash box and was unshaken in cross-examination on this point.

[31] Mr L. Hocking has not been interviewed by the police regarding the theft of the cash box notwithstanding Mr King has reported what he had been told about the theft to the police.

[32] The unsworn witness statement provided by Mr Crabbe says that he is a mild delusional schizophrenic.

[33] The statement says that it has become apparent to him that he wrongly accused Mr L. Hocking the applicant of stealing the cash box.

[34] Mr Crabbe’s statement is that his delusions have worsened since he stopped taking medication on 26 April 2014.

[35] Mr Crabbe says he would like to retract his earlier statement against Mr L. Hocking.

Consideration

The cash box

[36] Mr King’s decision to dismiss Mr L. Hocking was based on the accusations Mr Crabbe had apparently made that were relayed to Mr King by Mr T. Hocking to the effect that Mr L. Hocking the applicant had together with Mr Crabbe stolen the cash box.

[37] The Commission in a case such as this makes its decision based on the facts disclosed by the evidence provided at the hearing. In some instances that will involve further or different evidence to that which was available to the employer at the time the decision to dismiss was made 2.

[38] In this instance there is further information available to the Commission that was not available to Mr King at the time he made his decision to dismiss Mr L. Hocking. Specifically there is evidence that Mr Crabbe says his previous accusing of Mr L. Hocking the applicant was not true.

[39] In summary then the evidence before the Commission is that:

1. Mr King was told by Mr T. Hocking that Mr Crabbe had said that Mr L. Hocking, together with Mr Crabbe, had stolen the cash box.

2. When Mr King searched the side of the road where, according to what Mr T. Hocking had told Mr King, Mr Crabbe and Mr L. Hocking had thrown the empty cash box nothing was found.

3. Mr Crabbe has made an unsworn statement that his previous statement to the effect that Mr L. Hocking had together with him stolen the cash box was not true.

4. When Mr King told Mr L. Hocking that he believed he had with Mr Crabbe stolen the cash box Mr L. Hocking forcefully denied this was the case.

5. Mr L. Hocking in his evidence before the Commission forcefully denied he stole the cash box.

6. All employees at the branch including Mr L. Hocking were generally aware where the cash box was kept.

[40] I turn to consider the issue of the evidence of Mr Crabbe’s statements. There is first the original hearsay evidence which Mr King gave as to what Mr T. Hocking told him Mr Crabbe had told him had happened which directly conflicts with the subsequent written statement from Mr Crabbe to the effect that this earlier accusation that Mr L. Hocking stole the cash box was wrong. Mr Crabbe was not called as a witness by either party although Mr L. Hocking had believed he was to attend the hearing assumedly to confirm his written statement.

[41] In resolving the conflict between these two pieces of evidence my view is that the written statement from Mr Crabbe, although unsworn, is to be given more weight than the hearsay evidence but its overall weight is slight in any event.

[42] The fact that the cash box was not found on the side of the road where it should have been if Mr Crabbe’s apparent original statement to Mr T. Hocking was true suggests that at least to this extent the story as to what occurred with the cash box as it was relayed to Mr King was incorrect.

[43] Mr L. Hocking’s original denial when confronted by Mr King and his response and evidence before the Commission are consistent. He simply denies that he stole the cash box.

[44] There is nothing in my view in the other circumstances to which the respondent has pointed, such as the fact that Mr L. Hocking like other employees of the respondent was aware of where the cash box was kept that can be said to indicate that Mr L. Hocking in particular had stolen the cash box.

[45] As can be seen from the above there is a very limited evidence to support a conclusion that Mr L. Hocking was involved at all in the theft of the cash box. I find that on the balance of probabilities the applicant Mr L. Hocking did not steal the cashbox.

Warnings regarding alcohol

[46] The applicant was subject to and aware of the respondent’s policy concerning alcohol in the workplace. The applicant was aware that a breach of this policy could result in termination.

[47] Mr L. Hocking referred to himself as something of a “ratbag” but as someone who would own up to his wrongdoings.

[48] In his evidence Mr L. Hocking readily admitted to having on occasions consumed alcohol on the respondent’s premises and to on occasions attending for work hung-over and on occasions to not attending for work without advising his employer of his absence.

[49] The evidence demonstrates that Mr King was aware that Mr L. Hocking at times presented for work late and smelling of alcohol, was often still intoxicated on Monday morning and on Friday mornings immediately following the pay round. Initially no action had been taken by Mr King about this.

[50] On 26 April 2014, Mr King was told that Mr L. Hocking had been drinking alcohol during work hours on the respondent’s premises in the lunch room. Mr King confronted Mr L. Hocking and gave him a verbal warning that his conduct was unacceptable.

[51] On 9 May 2014, Mr King gave Mr Hocking a “First and Final Warning” in writing which referred to the previous verbal warning 3.

[52] The letter explained the reason the warning was being given was:

“Drinking alcohol during work time and drinking alcohol on company premises.
This practise (sic) is classed as gross misconduct and is a sackable offence immediately. But because of your work ethics up until this point I have decided to give you a first and final notice but if I have to speak to you at any time in the future regarding any alcohol issues you will be terminated immediately”

[53] I find that Mr King did present the written warning to Mr L. Hocking to sign, but Mr L. Hocking refused to sign it.

[54] Approximately one week later Mr King again suspected from Mr L. Hocking’s appearance that he was drinking alcohol during work hours on the premises. Mr King then verbally warned Mr L. Hocking and later gave him another written warning that his conduct was unacceptable.

Post termination behaviour

[55] Approximately one month after his termination Mr King was at the Narembeen Branch locking up when Mr L. Hocking came to the premises. Mr King went outside to see who was there and saw that Mr L. Hocking was intoxicated.

[56] Mr L. Hocking was slurring his words and was abusive and repeatedly told Mr King he was “going to fuck you up” and “fuck up your business.”

[57] Mr Miloini, the then recently appointed Service Manager came back to the Narembeen Branch having been advised that Mr L. Hocking had been seen walking towards the Narembeen Branch very intoxicated.

[58] For a time Mr L. Hocking continued to abuse Mr King and Mr Miloini but eventually walked away.

Mitigation

[59] Since his dismissal the applicant has made numerous attempts to gain work. To date he has not been offered any paid work. The applicant has worked on a couple of weekends for individual farmers where he received only food and board. The applicant has travelled to Perth to look for work.

[60] The applicant is in the process of regaining his driver’s license which he hopes will assist him gain future employment. The applicant is currently without a fixed address.

Submissions

[61] Mr L. Hocking simply argues that he was not guilty of the theft of which he was accused. That the conclusion of Mr King that he had stolen the cash box was wrong and that if it were not for that conclusion he would not have been dismissed. Consequently there was no valid reason for his dismissal and his dismissal was unfair.

[62] For the respondent it is argued that the respondent was entitled to conclude that the applicant had stolen from it and his summary dismissal was warranted.

[63] Based on the evidence available to the respondent leading up to the applicant’s termination, the respondent was justified in concluding that it was more likely than not that the applicant stole the cash box because:

a. The applicant was one of a small number of people who had access to the cash box during the period it was stolen.

b. The applicant’s brother attended Mr King’s home on a Sunday to tell him that Mr Crabbe had confessed to stealing the cash box with the applicant.

c. The applicant’s brother ultimately resigned from his employment with the respondent (after the applicant’s employment was terminated) because he said he was embarrassed that his brother had stolen the cash box.

d. When the applicant was told that the respondent believed he had taken the cash box with Mr Crabbe, he did not provide any explanation for what Mr Crabbe had said.

e. Mr Crabbe was a friend of both Mr T. Hocking and the applicant and presumably had no reason to falsely incriminate the applicant.

f. Mr T. Hocking is the applicant’s brother and presumably had no reason to make false statements about his brother and Mr Crabbe, especially when doing so was to his own ultimate detriment because he felt compelled to leave his employment by reason of the theft by his brother.

[64] The respondent submits that also relevant to the context of the respondent’s conclusion to dismiss the applicant is the fact that the he had engaged in serious misconduct on previous occasions, including repeatedly drinking, and or being affected by, alcohol at work, being late for work due to drinking and failing to attend work without providing notice or reasons for his absence, which also happened on the day Mr King spoke to employees about the theft.

[65] It is submitted the facts that during his brief employment, the applicant had received two written warnings and two verbal warnings, including final warnings, for these matters, coupled with his unexplained failure to attend work on 23 May 2015 without notice, would also constitute a valid reason for his dismissal, independently of any allegation of theft.

[66] In other words, even if it could be said the theft of the cash box did not provide a valid reason for the applicant’s dismissal (because there is not sufficient basis to conclude to the requisite standard of proof that the applicant stole it - which is not conceded), the fact that the applicant repeatedly engaged in conduct that he had previously been given warnings about, including warnings that repeating the conduct would result in termination, evidences a refusal to carry out a lawful and reasonable instruction consistent with the applicant’s contract of employment, and would constitute serious misconduct, including as contemplated by Regulation 1.07 of the Fair Work Regulations 2009.

[67] The respondent submits the applicant was given final warnings in relation to his conduct in the four weeks preceding his termination, when on each of those occasions his misconduct would have justified his summary dismissal. The only reason he was not earlier terminated was that Mr King thought he had to give three warning before terminating an employee’s employment.

[68] The applicant was notified of the reason for his dismissal on 26 May 2014 by Mr King.

[69] The applicant had an opportunity to respond, and did so with a bald denial, during his meeting with Mr King on 26 May 2014.

[70] The respondent argues this case is distinguishable from those in which an employee has engaged in a minor or momentary aberration in an otherwise exemplary past history. The applicant did not have a long period of unblemished service.

[71] It is acknowledged by the respondent that the applicant was not notified of the reason for the dismissal priorto a decision being made to terminate his employment. However, it is submitted that there is an abundance on which the Commission can conclude that any procedural defect should not be given such weight as to make the dismissal unfair, in light of the substantive and substantial justification for dismissal.

[72] In late June 2014, the applicant attended the respondent’s business in a drunken state and aggressively abused and threatened Mr King and the respondent’s business.

[73] This behaviour would have constituted serious misconduct which would in itself justify his instant dismissal. The applicant’s behaviour presented a threat to both Mr King the respondent’s business and speaks to the very poor character and credit of the applicant. Moreover, this conduct reiterates the respondent’s view that the applicant’s ongoing employment was and is entirely untenable.

[74] In the event that the Commission does not accept the respondent’s case that there were grounds for summary or any dismissal, it is submitted reinstatement is not appropriate given the complete breakdown in the respondent’s trust and confidence in the applicant, which is entirely caused by the applicant’s conduct during and after his employment.

[75] Further, even if the applicant could succeed in establishing he is entitled to a remedy (which is denied), any amount of compensation should be limited to one weeks’ salary as the respondent would have been entitled to dismiss the applicant with one week’s notice, and would have done so in the circumstances, given the breakdown in trust and confidence in the applicant due to his conduct during and after his employment.

[76] Under the Act, the applicant would have only been entitled to one weeks’ notice of termination.

The legislation

[77] The relevant section of the Act is outlined below:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

Valid reason

[78] The evidence before the Commission does not support a conclusion that Mr L. Hocking stole the cash box as Mr King believed. Consequently this was not a valid reason for his dismissal.

[79] The respondent however submits that there were other valid reasons for Mr L. Hocking to be dismissed. These include the fact that on more than one occasion he had been drinking on the respondent’s premises. That he had on a number of occasions attended for work affected by alcohol. That on a number of occasions he had failed to attend for work at all or attended for work late without providing notice to his employer or an explanation for these absences.

[80] I agree that these other reasons for Mr L. Hocking to have been dismissed were reasons that would have been valid reasons however these were not the reasons he was dismissed.

Notified of that reason

[81] The applicant was only ever notified he was being dismissed because it was alleged he had stolen the cash box.

[82] The applicant was never notified that any of the other reasons for dismissal, to which the respondent now refers, were being relied upon by the employer as reasons to dismiss him.

Opportunity to respond

[83] The applicant was given an opportunity to respond to the reason for dismissal being that he had stolen the cash box and directly advised the respondent that he had not done so.

[84] The applicant was never given an opportunity to respond to any of the other valid reasons for dismissal to which the respondent now refers.

Support person present

[85] There was no refusal to allow a support present to be present in any relevant discussion.

Warned about that unsatisfactory performance

[86] The respondent had no complaints with Mr L. Hocking’s performance of his duties.

Size of the employer’s enterprise

[87] The employer has approximately 100 employees and as such should be expected to follow an appropriate and fair procedure in any dismissal.

Dedicated human resource management specialists or expertise

[88] The evidence is that the respondent does not have any dedicated human resource specialists or expertise.

Other matters

[89] The applicant was employed for only seven months.

Conclusion

[90] The respondent dismissed Mr L. Hocking because they believed he had stolen the cash box from their office. The evidence before the Commission however is that this was not correct. Consequently this was not a valid reason for Mr L. Hocking to be dismissed.

[91] Whilst the Commission can understand why Mr King assumed Mr L. Hocking had stolen the cash box because Mr L. Hocking’s brother had reported to him this was the case some caution should have been exercised before making a final decision on Mr L. Hocking’s employment.

[92] Mr King did not attempt to meet with Mr Crabbe to ask him directly about his allegation that Mr L. Hocking had been involved in stealing the cash box. Mr King did however go looking for the cash box on the side of the road where according to what he had been told the box should be found but having failed to find it he did not appear to have any second thoughts about the accuracy of Mr Crabbe’s story. It was apparent Mr King had made his decision to dismiss Mr L. Hocking before he spoke to him about this allegation and did not give any real consideration to Mr L. Hocking’s denial that he had stolen the cash box.

[93] Mr King manages a branch with only nine employees. He would perhaps have been well advised to discuss the situation with someone else in the respondent’s management before he made his final decision to dismiss an employee for the obviously serious reasons of allegedly stealing from the company. This may not have been an option available to Mr King because the respondent apparently does not have human resource specialists amongst its staff.

[94] I accept that in some circumstances there may be other valid reasons for an employee to have been dismissed than the reasons the employer acted on at the time of dismissal.

[95] The other valid reasons, on which the respondent now seeks to rely, associated with Mr L. Hocking’s use of alcohol and related absenteeism could in appropriate circumstances be the foundation for a fair dismissal however that was not the case here.

[96] The employer’s approach to Mr L. Hocking’s use of alcohol was to initially ignore it and later to issue him with a first and final written warning. That warning expressly said any future need to speak with him regarding alcohol related issues would mean he was immediately terminated. However not long thereafter in direct contradiction to this for apparently further similar behaviour Mr L. Hocking was given yet another written warning but was not terminated. It is clear by its actions that the employer did not mean what it said in the first and final warning. Consequently it is far from clear as to what the employer’s position on this issue really was. Having approached the issue in this contradictory manner it could not be said that it was plain to Mr L. Hocking that failing in future to meet the employer’s requirements on this issue of alcohol would result in his dismissal.

[97] Similarly the additional complaints about Mr L. Hocking’s failure to attend or attending late were never escalated to the point where he understood he would be dismissed if this occurred again.

[98] It is also clear that these other reasons, singularly or together, were not the reasons for which Mr L. Hocking was dismissed. None of the procedural requirements in section 387 of the Act were followed for these other valid reasons for a dismissal and consequently Mr L. Hocking’s dismissal for these reasons would have been manifestly unjust and unreasonable 4.

[99] I am satisfied that the dismissal of Mr L. Hocking was unjust and unreasonable. Mr L. Hocking was unfairly dismissed.

Remedy

[100] In my view it was clear from the interactions between the applicant and Mr King during the hearing that their relationship has broken down due to the events involved in Mr L. Hocking’s dismissal. In addition the place of work is small with only nine employees in the relevant branch. Consequently I am satisfied that reinstatement would not be appropriate in this instance.

[101] There is no suggestion that an order for the payment of compensation would affect the viability of the respondent’s enterprise.

[102] I note the applicant was employed for only seven months.

[103] Notwithstanding its contradictory responses it is clear from the evidence that the respondent had become concerned about Mr L. Hocking’s use of alcohol, his absenteeism and sometimes late attendance. I consider if the applicant had not been dismissed as he was it is likely that because of these concerns the employment would have ended in the near future in any event as a consequence of the employer following through with its warnings and threat of dismissal. I assess that Mr L. Hocking would have remained employed for no longer than a further four weeks and so would have received remuneration for this period had he not been dismissed.

[104] Mr L. Hocking has made appropriate efforts to mitigate the loss of remuneration he has suffered. He has not earned any remuneration since his dismissal although he has received some minimal remuneration in kind in terms of food and board in return for work.

[105] In the circumstances compensation in the amount of four weeks’ pay at the rate of $920.00 a week gross will be ordered for Mr Hocking’s unfair dismissal. An order to that effect will be issued in conjunction with this decision and the respondent will be required to pay that amount within 21 days.

COMMISSIONER

Appearances:

L Hocking on his own behalf.

N Barsby of MDC Legal for the respondent.

Hearing details:

2015.

Merredin:

March 17.

 1   Exhibit A2.

 2   Dundovich v P & O Ports PR923358 at [79].

 3   Exhibit R6.

 4   APS Group (Placements) Pty Ltd v O’Loughlin (2011) 209 I.R. 351 at [51].

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