Lodge, Aaron John v Auspine Ltd

[1997] FCA 1340

FEDERAL COURT OF AUSTRALIA

LIMITED DISTRIBUTION

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ONUS OF PROOF - VALID REASON - SERIOUS MISCONDUCT.

Workplace Relations Act 1996 (Cth) ss 170DC, 170DE, 170EDA

AARON JOHN LODGE v AUSPINE LIMITED
TI 1007 of 1997

MURPHY JR
LAUNCESTON
12 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
LAUNCESTONDISTRICT REGISTRY	TI 1007  of   1997

BETWEEN:	AARON JOHN LODGE APPLICANT
AND:	AUSPINE LIMITED RESPONDENT
JUDGE:		MURPHY JR
DATE OF ORDER:		12 NOVEMBER 1997
WHERE MADE:		LAUNCESTON

THE COURT ORDERS THAT:

1. The application is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
LAUNCESTONDISTRICT REGISTRY	TI 1007 of 1997

BETWEEN:	AARON JOHN LODGE APPLICANT
AND:	AUSPINE LIMITED RESPONDENT

JUDGE(S):	MURPHY JR
DATE:	12 NOVEMBER 1997
PLACE:	LAUNCESTON

REASONS FOR JUDGMENT

INTRODUCTION
The respondent carries the onus of proof that it had a valid reason to terminate the applicant's employment as a yard-hand: ss 170EDA(1) and 170DE(1) of the Workplace Relations Act 1996 (Cth) (“the Act”). The applicant's employment was terminated on 27 June 1996 for the reason that he had been involved in the unauthorised removal of company product.

WITNESSES
The respondent led evidence from Mr Ron Apted and Mr Anthony (Mike) Walker.  They identified the applicant as being involved in a particular incident on the morning of 27 June.  The respondent further called Mr Leigh Mathys, the then plant manager, Ms Maureen Smith, the employee relations officer, and Mr Robert Harper, a union shop steward.  The last three were present at the termination interview.  Mr Oakenfall was also called in relation to an incident on 13 June.  The applicant gave evidence.  He called his team leader Mr Mark Brown, another team worker, Mr Christopher Smith, and a friend, Mr Shane Brown. 

THE EVIDENCE
I should note immediately that the proceeding depends on whose version of events on 27 June 1996 is to be accepted.  I am satisfied that although the incident of 13 June was raised in the meeting on 27 June, it was not the principal reason for the termination.  The respondent could not succeed unless it could make out its allegation in relation to the incident on 27 June. 

I now turn to the competing versions of the incident on 27 June.  The respondent's key witnesses were Mr Apted and Mr Walker.  Mr Apted said he was working as a wood machinist doing maintenance that evening.  At about one am he saw somebody at a fork-lift, apparently looking for the keys.  A short time later he was in the drying mill when he heard the fork-lift coming into the area.  He observed that it was being driven by the applicant.  He saw it picking up a bundle of timber.  Not long after he had to go to his car.  When he was near the car he saw the fork-lift near another car, a white-roofed Holden EH station wagon that was dark maroon or brown.  He saw the applicant loading the timber into the back of it.  He was about twenty metres away.

Mr Mike Walker's evidence was that he knew the applicant.  He had seen him driving a vehicle of the same description in the local area, and driving that vehicle to work that night.  At five-thirty am on that day he had seen the car in the middle yard as he was driving to refuel his loader.  He came back at approximately five-forty am after refuelling the loader and had seen the applicant get into the car and drive off.  He said he had seen that it had a pack of timber in the back, and at first stalled. 

In cross-examination Mr Apted admitted that he had some problems with dishonesty.  He denied that he was seeking to blame the applicant for his own dishonesty.  He maintained that he observed the applicant and, further, that he had sufficient opportunity to do so.  Mr Walker's evidence was that he thought it was the applicant on the basis that it was the applicant's vehicle. 

The applicant denied any involvement in the incident.  He maintained that he clocked off with Mr Christopher Smith at about six am that morning.  He was driven home by his friend, Mr Shane Brown.  He denied ever having driven a vehicle of that description.  In the termination interview, when asked about the incident, he denied it and said it could not have been him because he had “no car and no licence”.  The issue is whose version of events is inherently more probable.  In reaching this conclusion either way I was reminded by Mr Stephenson, counsel for the applicant, of the dangers of identification evidence.  A further matter is that this is a serious allegation against the applicant.

Turning to the respondent's evidence, the question arises as to whether either of the two witnesses could be mistaken.  Given that both knew the applicant it is unlikely that they could be mistaken.  This applies particularly to Mr Apted.  Second, do each of them have any reason to fabricate the account against the applicant?  Although Mr Apted admitted some dishonesty against the respondent of an undisclosed nature, his evidence, except as to one matter of detail, was consistent with an earlier police statement that he had given.  No motive was raised as to why he would make up his identification of the applicant or would collude with Mr Walker as to the vehicle and the circumstances of the applicant's association with it that evening.

The applicant's account of the meeting with Mr Mathys and Ms Smith bore some examples of recent invention in that he maintained that Mr Mathys essentially dismissed him in the first five minutes and, further, cut him off from responding.  These matters were not put to Mr Mathys.  The applicant in a sense led alibi evidence as to how he got home that morning, yet he did not proffer that evidence when he had the opportunity to do so on the night of 27 June in the termination meeting.  I have to weigh the applicant's denial of his involvement, corroborated to some extent by his very close friend, Mr Shane Brown, against the other two witnesses of the respondent.

Mr Christopher Smith did not corroborate the applicant's account that the applicant had clocked off with him.  As a matter of human experience, given the applicant was being accused of driving off with a car load of timber that morning, it is highly likely that he would immediately raise the names of his co-workers who could testify as to his presence at that critical time.  The fact that the evidence had not been forthcoming is relevant to which account is more probable in these proceedings. 

A further matter is the applicant's denial of driving the vehicle.  On his own admission he has two convictions for unlicensed driving, and this goes to the credibility of his denial.  Counsel for the applicant pointed to the lack of evidence linking the applicant to the vehicle.  The evidence was that of Mr Mike Walker and Mr Apted.  Their evidence must essentially be weighed against that of the applicant and Mr Shane Brown.  I found the latter’s evidence unconvincing. 

CONCLUSION
Weighing the competing accounts, I am satisfied that the respondent has discharged its onus of proof that the applicant was on 27 June involved in the unauthorised removal of timber from the premises. I accept the evidence of Mr Apted and Mr Mike Walker over the denials of the applicant and the witnesses called on his behalf. I am satisfied that he had the opportunity to do what it is alleged that he did on that night. I am satisfied that the respondent put the allegation to the applicant. There has been no breach of section 170DC of the Act. Further, I am satisfied that the respondent has discharged its onus of proof under section 170DE(1) that it had a valid reason to terminate the applicant for his breach of company policy on that occasion. The application must be dismissed.

ORDER

1. The application is dismissed.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Murphy

Associate:        KAREN HALSE
Dated:             12 November 1997

Counsel for the Applicant:	MR G STEPHENSON
Solicitor for the Applicant:	STEPHENSON & MURRAY
Counsel for the Respondent:	MR A CAMERON
Solicitor for the Respondent:	TCCI
Date of Hearing:	12 NOVEMBER 1997
Date of Judgment:	12 NOVEMBER 1997