Lockwood v Colborn-Dawes Australia Pty Limited
[1996] IRCA 290
•05 July 1996
DECISION NO: 290/96
CATCHWORDS
INDUSTRIAL LAW - termination of employment - misconduct - termination at the initiative of the employer - casual employee
Industrial Relations Act 1988 ss: 170DE(2) 170EA
Animal Food Makers State Award (NSW)
GREGORY KEITH LOCKWOOD -v- COLBORN-DAWES AUSTRALIA PTY LIMITED (A.C.N. 000 991 793)
NI 3272 of 1995
Coram: LINKENBAGH J.R.
Place: SYDNEY
Date of judgment: 5 JULY 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 3272 of 1995
BETWEEN:
Gregory Keith LOCKWOOD
Applicant
AND
COLBORN-DAWES AUSTRALIA
PTY LIMITED (ACN 000 991 793)
Respondent
Coram: Judicial Registrar Linkenbagh
Place: Sydney
Date: 5 July 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application is dismissed.
Leave is granted to the respondent to re-list the proceedings before Judicial Registrar Linkenbagh as to costs.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 3272 of 1995
BETWEEN:
Gregory Keith LOCKWOOD
Applicant
AND
COLBORN-DAWES AUSTRALIA
PTY LIMITED (A.C.N. 000 991 793)
Respondent
Coram: Judicial Registrar Linkenbagh
Place: Sydney
Date: 5 July 1996
REASONS FOR DECISION
This is an application pursuant to the provisions of Section 170EA of the Industrial Relations Act 1988 in which the applicant seeks a remedy in respect of the termination of his employment with the respondent at its animal food processing mill in Wagga Wagga during January of 1995.
The applicant commenced work with the respondent on 20 January 1994 as a casual employee pursuant to the Animal Food Makers State Award (NSW). He worked a regular 40 hour week and there was a prospect of his becoming a permanent employee at some future time. Mr Habib for the respondent submitted that there was no termination of the employment at the initiative of the employer because as the applicant was a casual employee in the terms of clause 4(2) of the relevant Award his engagement was “on an hourly basis with a minimum payment on any day as for 4 hours”. Mr Habib submitted that an engagement in those terms was an engagement for a fresh contract of employment in respect of each shift worked and that the employment came to an end at the end of each shift by the effluxion of time. That submission is not accepted by the Court. Clause 4(2) of the Award indicates the basis on which the engagement is made. The engagement in terms of the clause of the Award is not synonymous with the term ‘contract of employment’ at Common Law or with the term ‘employment’ in the relevant Sections of the Act. Acceptance of the submission would have the effect that no contract of casual employment could extend beyond a particular shift and would render, for instance, the provisions of Regulation 30B of the Industrial Relations Regulations, as they relate to casual employment, meaningless.
The applicant argues that his employment was terminated on 17 January 1995 and the respondent argues that the employment terminated on 20 January 1995. On 17 January 1995, Mr Walker for the respondent spoke to the applicant in terms that because of shortage of work the applicant would not be required for a few weeks and that Mr Walker would telephone the applicant if work picked up and the respondent had a further need for his services. The applicant argues that his being laid off on 17 January 1995 was not for a valid reason and that, if it was for a valid reason, it was otherwise harsh unjust or unreasonable within the meaning of Section 170DE(2) of the Act. That argument is based on the reason that the applicant had been employed for a longer period than two other casual employees who were not laid off on 17 January 1995.
The respondent argues that the employment was terminated on 20 January 1995 or because of the events which took place on that day. I propose to canvass the events of 20 January 1995 in some detail. My findings as to the events on that day obviate the need for me to decide whether or not the employment terminated on 17 January 1995 because the events of 20 January 1995 constitute such gross misconduct on the part of the applicant that even if as at the close of business of 17 January 1995 he had been unlawfully dismissed, the circumstances which arose on 20 January 1995 would have the effect that this Court would not grant the applicant a remedy in respect of that unlawful dismissal. Having said that, it could also be said that the applicant has not satisfied the Court that the contract of casual employment came to an end on 17 January 1995 but that the true situation was that if the respondent had had work available for the applicant and had telephoned him to attend for work within the few weeks after 17 January 1995 that work would have been on the basis of the contract of casual employment which had existed up to 17 January 1995.
Turning to the events of 20 January 1995 I find the facts as follows.
The applicant drives a Commodore motor vehicle registered number POD-096 which is blue/green in colour with grey trim.
At about 4.30am on 20 January 1995, Mr Greer, another employee, saw the car in the car park outside the work place.
Mr Walker the mill Foreman arrived at work at about 4.45am and Mr Greer informed Mr Walker that he had seen the applicant’s vehicle in the car park.
Mr Holt an employee who had responsibility for the boxes of vitamin supplements in the mill arrived at work about 5.00am on 20 January 1995 and observed that there was one less box of vitamin E supplement than there had been on the pallet on which he had been working when he left the work place on the afternoon of 19 January 1995. Mr Holt informed Mr Walker that the box was missing.
Mr Cullen the Production Manager, was informed by Mr Walker of the presence of the applicant’s car on the premises that morning and of the fact that the box of vitamin E supplement was missing. Mr Cullen conducted enquires of Mr Greer and Mr Holt.
Sometime before 8.00am on 20 January 1995 the applicant telephoned Mr Walker requesting that he provide a letter which the applicant could use for the purpose of obtaining benefits from the Department of Social Security. Mr Walker arranged for the applicant to call and collect the letter. The applicant arrived at the work place sometime between 8.00am and 8.30am and was met by Mr Cullen who took him to see Mr Walker.
While the applicant and Mr Walker were inside the building Mr Cullen and Mr Holt approached the applicant’s vehicle. Mr Holt activated the boot release button which is located in the glove box of the vehicle. The boot opened and the two men observed a box of vitamin E supplement in the boot of the vehicle.
A box similar to the box observed by Mr Holt and Mr Cullen is exhibit “C” in these proceedings. Iit weighs 25 kilograms and has a value of approximately $675.00. The box measures 39 by 29 centimetres and is 43 centimetres high. .
Mr Holt looked in the vehicle at the request of Mr Walker. Mr Cullen approached the vehicle of his own volition and had not been requested to do so by any person.
Mr Walker spoke to the applicant in Mr Dolan’s office in the presence of Mr Dolan. The applicant was asked why he had been at the work place at about 4.30am and the applicant responded that he had been at the race track and had called in to see if there was any work. During that conversation a Mr Roberts relayed to Mr Walker that the box had been observed in the applicant’s vehicle. Mr Walker put to the applicant that there was a box of vitamin E supplement in his car and the applicant denied any knowledge of it. The applicant did not agree to a request by Mr Walker that they look in the vehicle and in Mr Walker’s words the applicant “became uneasy and left”.
Mr Walker and Mr Dolan followed the applicant from the building towards the vehicle and Mr Walker again requested that the applicant open the boot. The applicant said words to the effect that he was believed he was being set up and entered the vehicle and left the premises.
The applicant’s conduct was reported to the police who charged the applicant with a criminal offence. The criminal offence was dealt with by the Local Court and the charge was found not to be proved.
The box of vitamin E supplement seen by Mr Holt and Mr Cullen in the boot of the applicants vehicle on 20 January 1995 has not been located.
One of the products used by the respondent in the manufacture of animal feeds at its mill is known as vitamin E absorbate which is a substance in powder form which is mixed with other substances to make a composite animal food.
The versions of events and conversations on 20 January 1995 given by the applicant on the one hand and the witnesses for the respondent on the other vary in many respects. For instance, the applicant denies that he admitted to Mr Walker and Mr Dolan that he was at the premises at 4.30am on 20 January 1995. He denies that the boot release button located in the glove box of the vehicle was in working order on the morning of 20 January 1995. He denies that the box of vitamin E supplement was in the boot of his car.
The applicant’s partner Miss Peet gave evidence that she owned the vehicle and that the boot release button did not work and had not worked since the vehicle had been involved in an accident many months prior to 20 January 1995. Her evidence was that only she drives the vehicle and that a short time before 20 January 1995 she had tested the boot release button in the car park at Woolworths at Wagga Wagga in the presence of her mother, on an occasion when the applicant was not there. That evidence is at variance with that of the applicant, who told the Court that he had tested the boot release button in the car park at Woolworths a short time before 20 January 1995. The evidence of the applicant and Miss Peet in relation to the boot release button is of significance in that the applicant did not raise the issue when he had the opportunity to do so on 20 January 1995 when he was first confronted with the allegation that the box had been observed in the boot. Further, there is no evidence that the applicant or Miss Peet informed the Police at the earliest possible time that the boot release did not function. Miss Peet gave evidence that the Police did test the boot release some days after 20 January 1995 and found it not to be working. That of course does not provide any conclusive evidence that it was not working as at 20 January 1995.
There is also inconsistency between the evidence of the applicant and Mr Greer. The two men agree that they exchanged words a few weeks before the hearing in the street in Wagga Wagga. Mr Greer told the Court that on that occasion the applicant was driving a motor vehicle and tried to run Mr Greer, who was riding his bicycle, into a parked car and said to him “you are nothing but a low down slime bucket” and “you’re dead”. Mr Greer told the Court that he was made nervous in relation to his appearance before this Court because of those words of the applicant. The Court observed that in giving his evidence Mr Greer was hesitant and perspiring and his demeanour in the witness box was consistent with his statement that he was nervous. The applicants version of his meeting with Mr Greer was that the applicant was on foot and that Mr Greer rode up behind him on his bicycle, that the applicant said “I don’t want to talk to you” but Mr Greer said “I want to apologise to you. You know what I’m like. I go off half cocked”. The applicant denied making any threat to Mr Greer. Miss Peet denied that any such exchange took place while she was in the vehicle with the applicant. Mr Greer impressed the Court as an honest witness who was apparently fearful of the applicant and the Court prefers Mr Greer’s version of his meeting in the street with the applicant.
The applicant’s case depends upon there having been hatched a conspiracy between Mr Greer, Mr Walker, Mr Dolan, Mr Cullen and Mr Holt. It was submitted for the applicant that Mr Walker was motivated to eliminate Mr Lockwood from the work place and that he saw and took his opportunity to do so in the events of 20 January 1995. The major difficulty with that submission is that Mr Walker had in fact achieved on 17 January 1995, at the very least, in effect, a suspension of Mr Lockwood’s casual employment. There is evidence that suggests Mr Walker may have been frustrated with the conduct of the applicant before 17 January 1995 and that frustration may have been linked to a perception by Mr Walker with regard to the applicant’s absence from the work place because of injury between 21 October 1994 and 12 December 1994. Nevertheless, the respondent’s managers must be free to manage the respondent’s business and the work force in the manner which they perceive to be best in the interests of the operational requirements of the business and subject of course to the respondent’s obligations to its employees under the law. The right to allocate work to casual employees is a right which is exercisable within the discretion of the employer and there is no evidence which satisfies me that Mr Walker exercised that discretion unreasonably on 17 January 1995. The applicant’s case depends upon Mr Walker’s being, on 20 January 1995, motivated to achieve a termination of the applicant’s employment. It further depends upon Mr Walker’s having been able to engage the other witnesses for the respondent in the conspiracy, between the time of the applicant’s telephone call to Mr Walker requesting the letter for the Department of Social Security and the time of his arrival at the work place. That period cannot be precisely determined on the evidence but could not have been longer than three quarters of an hour at the outside.
It was submitted for the applicant that Mr Holt and Mr Cullen had an interest in blaming the applicant in relation to the missing box of vitamin E supplement because they were persons who each were in the position to have stolen it themselves. Such a submission is fanciful in all the circumstances and depends on both Mr Holt and Mr Cullen having guilty minds. Mr Holt is no longer employed by the respondent and was an independent witness. All of the witnesses for the respondent impressed the Court as honest witnesses who were doing their best to give the Court an accurate picture of the events. All of those witnesses were as a result of the events on 20 January 1995 each in no doubt that the applicant had stolen the box of vitamin E supplement and each held that belief because of the part which he played in the events on that day. It was put by Counsel for the applicant that the case against the applicant is circumstantial. That is not so if I accept the evidence of Mr Holt and Mr Cullen that they saw the box in the boot of the applicant’s vehicle and I do accept that evidence.
I note that it was not put to each of the witnesses for the respondent that they were engaged in a conspiracy with one another to bring about the termination of the applicant’s employment. The evidence does not support a finding that the witnesses for the respondent hatched a conspiracy and acted in consort on 20 January 1995. There are minor variations in the evidence of the various witnesses for the respondent. Overall however, their evidence has consistency and a ring of truth about it which the evidence of the applicant and his partner does not have. The applicant had a clear motive to deny the presence of the box in the boot of his car. He did not take the opportunity to open the boot and his assertion that the box was planted in his car by Mr Holt and Mr Cullen is inconsistent with his evidence that he believed that the boot release button was not working on the morning of 20 January 1995. His evidence on that aspect wavered to allow for the possibility that Miss Peet may have had the boot release button fixed. However, Miss Pet’s evidence was that the boot release button was not working at all and indeed was not working at the time when the Police tested it some days after 20 January 1995. That being so the applicant had nothing to fear by allowing Mr Walker and Mr Dolan to look in the boot on 20 January 1995. In fact on the applicant’s evidence Mr Walker and Mr Dolan would not have been able to look in the boot because the boot release button did not work and he was not in possession of a key which would open the boot manually.
On the totality of the evidence, the applicant’s evidence is less than credible and his conduct and the manner in which he gave his evidence contrasted with the evidence of the evidence and demeanour of the witnesses for the respondent leave me in no doubt that on 20 January 1995 shortly after 8.00am there was a box of vitamin E supplement in the boot of the applicant’s car and that the applicant did not, and has not, explained its presence there. I am satisfied on the balance of probabilities that the applicant was guilty of misconduct towards the respondent because of the presence of the box of vitamin E supplement in the boot of his vehicle. The consequence of my findings is that if the applicant’s employment had been terminated on 17 January 1995 the applicants conduct on 20 January 1995 created such circumstances in the particular case that no remedy would be appropriate in relation to his Application before this Court. My finding however is that the employment came to an end as a result of the applicant’s conduct on 20 January 1995. The evidence supports the view that but for the events of 20 January 1995 the applicant would have been offered further work by the respondent as soon as work was available. There was evidence led that work became available early in February. After 20 January 1995 the applicant was not offered further work nor did he seek further work from the respondent. It could well be said in all of the circumstances that the employment came to an end as a result of the conduct of the applicant rather than as a result of any action on the part of the respondent which could be said to be action with a view to bringing about the termination of the employment. If there was no termination of the employment at the initiative of the employer then the applicant has no standing to bring this Application. If the conduct of the employer in not offering the applicant further work is because of the gross misconduct which I have found on the part of the applicant then equally it cannot be said that the termination of the contract of employment was at the initiative of the employer within the meaning of the Act. My conclusion is that the contract of employment did not come to an end on 17 January 1995 and that it came to an end after 20 January 1995 because of the respondent’s decision not to offer any further casual work to the applicant based on the applicant’s misconduct. This application must fail and is dismissed.
I shall grant leave to the respondent to re-list the proccedings as to costs.
I certify that this and the preceding nine (9) pages
are a true copy of the reasons for decision of
Judicial Registrar Linkenbagh
Associate: Renee Cauchi
Dated: 5 July 1996
Counsel for the applicant: Mr R.Moore Solicitors for the applicant: Farrell Lusher Counsel for the respondent: Mr S.Habib Solicitors for the respondent: Freehill Hollingdale and Page Dates of hearing: 20 and 21 May and 27 June 1996
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