Mendo Jankulovski and Sita Bus Lines

[1994] IRCA 125

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - Misconduct - Allegations of pressure or coercion on fellow employee to steal and sell tyres - Allegations put to applicant before termination - Conduct admitted - Resignation suggested by respondent but declined by applicant - Summary termination - Unreasonable to require continuation of employment during notice period - Termination not harsh unjust or unreasonable.

Industrial Relations Act 1988, Section 17DB, Section 170DC, Section 170DE, Section 170EA.

Byrne and Frew v Australian Airlines Ltd (1994) 52 IR10.

MENDO JANKULOVSKI AND SITA BUS LINES PTY LTD
No. VI-1341/94

Before:           Ryan JR

Place:              Melbourne

Date               30 November 1994

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 1341/94

B E T W E E N:    MENDO JANKULOVSKI
  Applicant

AND:                   

SITA BUS LINES PTY LTD

Respondent

RYAN JR

MINUTES OF ORDER

30 November 1994

THE COURT ORDERS THAT:

1. The application be dismissed.

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
VICTORIA DISTRICT REGISTRY  Matter No VI 1341/94

B E T W E E N:    MENDO JANKULOVSKI
  Applicant

AND:                   
  SITA BUS LINES PTY LTD
  Respondent

COURT:           RYAN JR

PLACE:            MELBOURNE

DATE:               30 NOVEMBER 1994

REASONS FOR JUDGMENT EX TEMPORE

The applicant alleges his employment was unlawfully terminated on 29 July 1994 and the reason given by the respondent for termination was pressure allegedly applied by the applicant on a staff member to steal tyres from the respondent’s workshop.

The respondent agrees this pressure was a reason for the termination but, in his affidavit in response, states that there were also “other reasons”.  No other reasons were provided at trial except for one crucial reason namely the unanimous evidence of the three respondent witnesses present at the termination meeting on 29 July that the applicant made certain admissions.

There is stark conflict between the applicant and the three respondent witnesses as to the nature of the admissions on 29 July.  I accept that the respondent witnesses are all generally witnesses of truth and that, after categorising the approaches to Rastovsky (the fourth respondent witness and a fellow employee) as “maybe a joke”, the applicant admitted that he had put pressure on or had approached or suggested to Rastovsky that he (Rastovsky) pay back his $2,000 debt to the applicant by stealing tyres either for disposal by Rastovsky or by the applicant.  It matters not what the proposal was in respect of disposal of the tyres.  Once the applicant was treated as making such an admission that indisputably amounted to an admission of serious misconduct.

The admitted misconduct was a valid ground for summary termination pursuant to Section 170DE(1) and in my view was not harsh unjust or unreasonable. In the circumstances compliance with the notice provision Section 170DB(2) was irrelevant.

There is a crucial distinction between this case and Byrne and Frew v Australian Airlines Ltd (1994) 52 IR10. The distinction is the admissions. I accept the admissions were made. That in my view was an admission of serious misconduct and it was an admission of a form of coercion or incitement to steal to pay back a debt.

It is quite likely that George Sita, the real controller of the respondent company, had assumed that Rastovsky was telling the truth but he did give the applicant the opportunity to respond and I find that, after a short period, the applicant made admissions.  The fact that George Sita did not believe the applicant’s initial response that approaches were a joke is neither here nor there.  I find the admissions were made.

I appreciate that the applicant had till then an apparent good record and handled money daily but that does not detract from the conduct as admitted.

The time span over which the approaches to Rastovsky were made is irrelevant as indeed are the number of such approaches.  The crucial thing is the admissions in the meeting on 29 July 1994.

I preferred the general evidence of the respondent witnesses and their general understanding of what occurred and the nature of the admissions.  I have, in areas of conflict, preferred the evidence of the respondent witnesses to that of the applicant.  The result is inevitable.  I am satisfied the termination was lawful and for valid reason and was not harsh unjust and unreasonable and therefore the application is dismissed.

ORDER

Application dismissed.

I certify that this and the preceding page are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :           
Date  :           30 November 1994
Appearances:
Counsel for the Applicant              :           C. Zapparoni
Solicitor for the Applicant              :           Patrick Robinson & Company
Counsel for the Respondent           :           C.J.  Blanden
Solicitor for the Respondent           :           Freehill Hollingdale & Page
Date of Hearing  :           30 November 1994

Judgment  :           30 November 1994