Lowe and AFMEU v ACL Bearing Company Herr and AFMEU v ACL Bearing Company
[1995] IRCA 34
•15 February 1995
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - unauthorised removal of property - onus of proof - civil test - satisfaction on preponderance of evidence - balance of probabilities - serious allegation - gravity of the consequences - reasonable satisfaction.
Industrial Relations Act 1988, S170DE, S170EDA, S170EE
Briginshaw v Briginshaw [1938] 60 CLR 336
Byrne & Frew v Australian Airlines Limited [1994] 52 IR 10
Bi-Lo Pty Ltd v Hooper; Hooper v Bi-Lo Pty Ltd 34 AILR 283
LOWE AND AFMEU v ACL BEARING COMPANY
HERR AND AFMEU v ACL BEARING COMPANY
No. TI-173/94 and TI-174/94
Before: Ryan JR
Place: Melbourne
Date 15 February 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY Matter No TI 173/94, TI 174/94
B E T W E E N: JAMIE LOWE and AFMEU
Applicant
AND: ACL BEARING COMPANY
Respondent
B E T W E E N: DONALD ALFRED HERR and AFMEU
Applicant
AND: ACL BEARING COMPANY
Respondent
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 15 FEBRUARY 1995
MINUTES OF ORDER
.
THE COURT ORDERS THAT:
The respondent reappoint Jamie Lowe to the position in which he was employed immediately before termination.
The respondent take appropriate steps to ensure continuity of Jamie Lowe’s employment and that payments received on termination are adjusted to ensure remuneration lost from the date of termination to the date of reinstatement.
If necessary the respondent is to be reimbursed for appropriate aspects of termination payments such as payments in lieu of leave entitlements.
The respondent reappoint Donald Alfred Herr to the position in which he was employed immediately before termination.
The respondent take appropriate steps to ensure continuity of Donald Alfred Herr’s employment and that payments received on termination are adjusted to ensure remuneration lost from the date of termination to the date of reinstatement.
If necessary the respondent is to be reimbursed for appropriate aspects of termination payments such as payments in lieu of leave entitlements.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY Matter No TI 173/94 TI 174/94
B E T W E E N: JAMIE LOWE and AFMEU
Applicant
AND: ACL BEARING COMPANY
Respondent
B E T W E E N: DONALD ALFRED HERR and AFMEU
Applicant
AND: ACL BEARING COMPANY
Respondent
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 15/02/95
Donald Alfred Herr and Jamie Lowe were employed by ACL Bearing Company, the former for 27 years, the latter for 7 years. Both were dismissed on 15 September 1994 and on that day both were handed letters which read as follows:
“You are hereby advised that your employment with this company will terminate on 15 September by summary dismissal, for your role in an incident involving the unauthorised removal of Company property on Saturday, 10 September 1994.
Yours faithfully
R J Panitzki
General Manager”
(See Exhibit A5)
Herr and Lowe both filed applications for remedy for unlawful termination of employment (Applications TI 174/94 and TI 173/94). The AFMEU is a second named applicant in each application and ACL Bearing Company is the respondent in both applications.
Mr Perica, a barrister and solicitor and an industrial officer with the Vehicle Division of AFMEU appeared for the applicants. Mr Ellis, solicitor, appeared for the respondents.
By consent, both applications were heard together although, of course, a separate determination is required for each application. Furthermore, while both Herr and Lowe were terminated on the same grounds and because of the alleged removal of the same company property, to wit a bag of cleaning rags and two plastic bearing boxes (similar in appearance to milk crates), separate evidence was led for and against both men with some but by no means all evidence common to both.
The respondent’s case is based primarily on the observations of Gordon Maxwell Crawford, the proprietor of Day-Night Security and Mervyn John Loch who works part-time for Crawford as a security officer.
Mr Crawford had been working at night for the respondent for six to nine months. The nature of the security contract was never revealed in evidence but Mr Crawford made it very clear (T 111) that between midnight and approximately 7:00 am on Saturday 10 September 1994 he and Mr Loch were undertaking specific security work for the respondent which involved keeping a particular motor vehicle under observation and the vehicle under observation was neither Herr’s Cortina nor Lowe’s utility (although both those vehicles are involved in the events which led to the terminations).
Crawford’s most relevant evidence is as follows:
T 101
“About 2:30 am I was coming from car park No 3 to car park 2 around the plant and observed some movement up near the No 2 car park and I saw a person carrying two milk crates. (The witness identified the milk crates as being “approximately the same size” as Exhibit A2, a plastic bearing box.)”
At T 102 he identified this person as:
“A young fellow.....slim build, approximately 5’10”, collar length curly hair. He had two crates in his hand and he went to the green Cortina car - to the rear of the green Cortina car. I couldn’t actually see what he did behind the car but I believe that he moved something from the crates and put it in the boot of the car. He then took the crates and placed them over near some cut small limbs of timber stacked on the vacant land. As we came around we drove around to the car park, pulled up near the car and I was approached by the same young person and he just said to us, ‘we’ve been watching out the window and we thought you were checking the cars out, taking petrol’.”
During evidence Crawford identified Lowe as the young person in question. The Court simply notes that Lowe is slight and small of stature and would be no more than 5’6” in height.
When Crawford was asked whether he said anything to Lowe about his observations he replied:
“No.....we had reasons to watch another vehicle.”
Crawford indicated that he and Loch only spent about two minutes with Lowe and that Lowe then returned to work and he and Loch went back through the car park, “into Plant 3 right to the lower end of the park....we both then walked back around the fence line discreetly and stood behind some pine trees and did our observations from there on.” (T 103)
T 104
“At about 4:40 am I observed an older gentleman leave the plant door carrying two plastic bags. He walked down the tree line and down through some young planted trees. One plastic bag appeared to be full of rags, I would say, appeared to be rags in them. I can’t positively identify them....it was very light; swung over his shoulder and you could virtually through the light in the bags you could virtually visualise it was cloth. The other bag was only about a third full....a slightly smaller bag....I don’t know what was in it.....it was a heavier weight.”T 105
“He went straight to his car and put them on the back seat or on the floor in the back seat. When he opened the driver’s door and got in I immediately came to the gate to close the gate to detain him. After he placed the bags in the car he went to the small heap of timber and collected two crates....and placed them in the back area behind the driver’s seat.”T 106
“We knew he was going to leave the plant. I went to close the double gates. I got the left lower one closed, got to the right one and he took off and I stepped out onto the driveway to stop him and he swung the car straight at me and ran over my foot. I couldn’t get clear of him. Mervyn spoke to him over at the car. He asked him to wait or stop till I shut the gate. He got in the car and as soon as Mervyn spoke to him that’s when he started the car and took off. I could hear (Mervyn speak to) him because I was only 10 feet away. He asked him to please wait because I wanted to speak to him.”T 110 and 111.
The following exchange took place between Mr Perica and Mr Crawford.
Perica: “Now I do not know much about the security industry but surely seeing as you had driven up to him momentarily after he has put the milk crates (in the car) would it not be sensible to ask him what he was doing over there?”Crawford: “No”.
Perica: “Why not?”
Crawford: “Because we had reason to check another vehicle.....I was employed by the company to observe a certain vehicle....that hadn’t been touched yet. We had to catch that one. This was the second one came into play. We didn’t know about.”
On several occasions Crawford confirmed that the requirements to maintain the observations on the other vehicle was the primary reason why he and Loch did not follow Herr’s vehicle in their own security vehicle.
The unsubstantiated Crawford allegation that Lowe had put some unspecified, unidentified items from a plastic crate in the boot of Herr’s car was never put to Herr when he was interviewed at approximately 7:00 am on Wednesday 14 September by Mark Deayton, Human Resources Manager in the presence of Ron Wing, Group Leader, and Andrew Kuznirski, Safety Co-ordinator.
This particular allegation was put to Lowe when he was interviewed by Deayton in the presence of Wing and Kuznirski at 8:15 am on 14 September and was denied by Lowe. Lowe denied carrying anything from the plant to Herr’s car. He denied that he was carrying milk crates or placed anything from a milk crate in Herr’s car or placed milk crates behind the clump of trees.
Although not specified in the termination notice or even directly in the record of interview, the Court assumes that Herr was terminated for allegedly stealing two plastic crates and a bag of cleaning rags and that Lowe was terminated for being an accessory before the fact to the alleged theft although that was never specified.
Even if the evidence of Crawford and Loch is accepted in its entirety, such evidence does not establish on a reasonably strict balance of probabilities evidentiary test that Lowe or Herr removed company property without authorisation.
There was absolutely no question of establishing from the evidence that beyond reasonable doubt Herr and Lowe stole company property. Of course, the test, in this jurisdiction, is not “beyond reasonable doubt” but “balance of probabilities”. However, when the allegation is one of a criminal offence, stealing, or if not larceny in terms of the criminal code, at the very least the unauthorised removal of company property justifying and incurring summary termination of employment, such circumstances indisputably require the respondent to prove the allegation on a very high balance of probabilities test indeed. Briginshaw v Briginshaw [1938] 60 CLR 336 is an adequate and long standing authority for this proposition. At 362 Dixon J said:
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”
In these two applications a high balance of probabilities test is a long, long way from being met.
In the case of Lowe, the only evidence against him, even if the Crawford/Loch evidence is accepted lock, stock and barrel is that he put the plastic bearing boxes behind a clump of logs and thus acted as an accessory before the fact in assisting Herr in the alleged unauthorised removal of the plastic boxes.
In the case of Herr, there is more but it is inadequate evidence to satisfy me that he removed company property. In respect of the bag of rags and the two crates it has not been established that such property was recorded as missing from the premises and I do not believe that such evidence can ever be elicited. In respect of the bag of rags, Crawford cannot say with certainty what was in the bag he says he saw Herr carry to his car.
His evidence at T104 is as follows:
“One of the plastic bags appeared to be full of rags, I would say......appeared to be rags.....I can’t positively identify them....it was very light, swung over his shoulder and you could virtually through the light in the bags you could virtually visualise it was cloth.”
Loch is more specific. At T121 he states:
“Could you identify what was in those bags at all?
One, definitely.
What was in that?
Rags.
How could you tell they were rags?
I could see them.
You could see the rags?
I could see the rags, multi-coloured rags, industrial waste rags.”
It was 4:35 am or thereabouts. There was some lighting in the general vicinity and it was obviously not a pitch black moonless night, but I have some reason to doubt that in all the circumstances and in the time available and given the distance between Loch and Herr that Loch could have identified the alleged rags in the bag allegedly on Herr’s shoulder as “multi-coloured, industrial waste rags” which is what he claims he saw. Furthermore, even if it is accepted that this is exactly what he saw, and I don’t accept that, but if it was really so, no evidence has been called to establish that such rags were company property.
I accept that Crawford and Loch examined two plastic crates behind the clump of branches and I accept that such crates were probably company property but company ownership is definitely not established from the evidence. I do not accept that there is satisfactory evidence that Lowe put the crates behind the clump of bushes and even if the Court were to accept that Herr put them in his car and left as described by Crawford and Loch, there is no satisfactory evidence that the two crates were company property.
When the result of a conclusion that the two crates were company property might lead to a further conclusion that Herr stole them and was justifiably dismissed I expect and demand some satisfactory evidence of ownership of the crates. It was not forthcoming.
Mr Ellis himself in his final address conceded that if the Court is not satisfied that the evidence establishes theft, at least of two crates if not of a bag of rags, then the respondent’s case of justified summary termination fails.
The Court is very far from satisfied that the evidence establishes theft, or stopping short of theft, unauthorised removal of company property.
In the circumstances the respondent’s defence of justified termination fails.
It is not necessary for me to comment on Herr’s explanation other than to say that there were inconsistencies in it and I believe an inference can be drawn from his behaviour that he did not want the security officers to examine the contents of his car. However, that is a far cry from ending the employment of an employee of twenty-seven years standing on the suspicion that he had removed unspecified company property.
I have considered the evidence of all eight witnesses and reviewed the transcript. Given the conclusions reached on the evidence of Crawford and Loch and specifically the inadequate evidence on which to base a reasonable conclusion of unauthorised removal of company property, it is not necessary to comment in detail on the evidence of Herr and Lowe or at all on the evidence of the respondent’s employees, Phillip Dwayne Jordan, Daryl John Pugliese and Mark Deayton or evidence of the AFMEU organiser David Eric Price.
I will comment briefly on the opportunity provided to Herr and Lowe to answer the allegations against them and the adequacy of the investigation carried out by the respondent prior to the termination of their employment.
Mr Perica relied on Byrne and Frew v Australian Airlines Limited [1994] 52 IR 10 and argued that the investigation was inadequate and that Herr and Lowe were not given sufficient opportunity to answer the allegations made against them.
With one exception, I believe that Herr and Lowe were given an adequate opportunity to answer the allegations and in both cases there was a consistent denial of the unauthorised removal of company property.
Both were given the opportunity to have a union representative at the first and crucial meeting with the company representatives when the allegations based on the Crawford/Loch observations were put to them. One matter of concern was the refusal of the company representatives to give the union or the applicants access to the security report. It is not necessary for the court to comment further other than to note that the union, through Mr Price, sought access and was denied.
In respect of the adequacy of the investigation Mr Perica relied not only on Byrne and Frew but also to Bi-Lo Pty Ltd v Hooper; Hooper v Bi-Lo Pty Ltd 34 AILR 283.
At first blush Bi-Lo may appear to be of more assistance to the respondent than the applicants but in fact this is not so. In that case the Full Industrial Commission of South Australia held that in a case involving alleged misconduct by an employee the employer was not bound to establish, on the balance of probabilities, that the employee committed the misconduct alleged, in order to escape a finding of a harsh, unjust or unreasonable dismissal.
The employer had conducted as full and extensive investigation into the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances. The Full Commission held that the employer had given the employee every reasonable opportunity and sufficient time to answer all the allegations put and respond. The employer had honestly and genuinely believed - reasonably on the information available - that the employee was guilty of the alleged misconduct. The employee for his part had not informed the employer of other facts which might have exculpated him, despite being given every opportunity to do so. In these circumstances, the dismissal was held not to be harsh, unjust or unreasonable.
The Full Industrial Commission said that an employee is entitled to both substantive and procedural fairness in respect of a dismissal. Substantive fairness will be satisfied if the grounds upon which a dismissal occurs are fair. Broadly speaking, a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just.
Where a dismissal is based upon the alleged misconduct of an employee, the Full Commission said that an employer will satisfy the evidentiary onus cast upon it if it demonstrates that, insofar as it was within its power before dismissal, it conducted as full and extensive an investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and make a response; and that the employer then honestly and genuinely believed and had reasonable grounds for believing on the information available at the time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee’s work record, such misconduct justified dismissal. A failure to satisfactorily establish any of these matters was said by the Full Commission to probably render the dismissal harsh, unjust or unreasonable.
The gravity of the offence was said to dictate the nature and extent of the inquiry which the employer must conduct. Exceptional cases might exist where the employee’s conduct was so obvious that the Commission will still be able to be satisfied that the dismissal was not harsh, unjust or unreasonable, notwithstanding that all proper procedures were not followed.
In this case I find that the employer conducted an investigation into the relevant matters concerning the alleged misconduct but that it was not sufficient in that the removal of company property was never established and there was no adequate and precise description given to Herr or Lowe as to the company property allegedly removed without authorisation.
I conclude that the terminations, of Herr and Lowe were unjust and also harsh and unreasonable.
I also consider that reinstatement is an appropriate remedy and that both should be reinstated as soon as possible to the positions they held immediately prior to the terminations.
Payments received on termination will need to be adjusted to ensure that both are paid remuneration lost from date of termination to date of reinstatement and that the respondent is reimbursed (if this is necessary) for appropriate aspects of the termination payments such as payments in lieu of leave entitlements.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 15 February 1995
Solicitor for the Applicant : Mr Perica of AFMEU
Solicitor for the Respondent : Mr Ellis of Clarke and Gee
Date of hearing: : 24 January 1995
Date of Judgment: : 15 February 1995
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