Mohebatullah Mohazab v Dick Smith Electronics
[1995] IRCA 221
•27 March 1995
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - Reinstatement - Payment of lost remuneration - Resignation - Reinstatement - Stay of Proceedings pending review.
Industrial Relations Act 1988, s. 170CB, 170EA, 170ED, 170EE
Liddell v Lembke (unreported, 15 December 1994, Court reference NI 94/200)
MOHEBATULLAH MOHAZAB v DICK SMITH ELECTRONICS
No. NI 327 of 1994
CORAM: McILWAINE JR
PLACE: SYDNEY
HEARING DATES: 19, 20, 25 JANUARY 1995
JUDGMENT DATE: 27 MARCH 1995
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. NI 327 OF 1994
BETWEEN: MOHEBATULLAH MOHAZAB
Applicant
AND: DICK SMITH ELECTRONICS
Respondent
CORAM: McILWAINE JR
PLACE: SYDNEY
HEARING DATE: 19, 20, 25 JANUARY 1995
JUDGMENT DATE: 27 MARCH 1995
MINUTES OF ORDER
THE COURT DECLARES
The termination of the employment of the applicant contravenes Division 3 of Part VIA of the Industrial Relations Act 1988 (the Act).
AND THE COURT ORDERS THAT:
The applicant be reinstated by the respondent company in the position that the applicant occupied immediately prior to the termination.
The respondent to reinstate the applicant on the same terms and conditions as applied to the applicant at the date of termination and that such period commence from the date of termination.
The period between the date of termination and the date of this decision be treated as continuous employment of Mr Mohazab by the respondent company for all purposes.
The respondent company to pay to the applicant the remuneration lost by the employee because of the termination between 20 May 1994 and the date of this judgment within 7 days of today.
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
NEW SOUTH WALES DISTRICT REGISTRY No. NI 327 OF 1994
BETWEEN: MOHEBATULLAH MOHAZAB
Applicant
AND: DICK SMITH ELECTRONICS
Respondent
CORAM: McILWAINE JR
PLACE: SYDNEY
HEARING DATE: 19, 20, 25 JANUARY 1995
JUDGMENT DATE: 27 MARCH 1995
REASONS FOR JUDGMENT
Mr Mohebatullah Mohazab relies on an application under section 170EA of the Industrial Relations Act 1988 (the Act) filed in the Registry on 1 June 1994.
The applicant claims:
(1a)an order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988;
(1b) an order requiring the respondent to reinstate the employee in employment;
(1c) an order that the respondent pay compensation to the employee; and
Such other order or orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the respondent had not been terminated. See section 170EE of the Act.
In that applicant Mr Mohazab has added these words in his own handwriting
“Would like to have my position even if it for the sake of saving my reputation and years of employment with this employer.”
The applicant’s application was supported by an affidavit dated 1 June 1994 in which it is suggested that there is no award or agreement relevant and that the date of the termination of the employee’s employment with the respondent was 20 May 1994. Mr Mohazab’s affidavit stated, in response to specific questions:
“(b) The award or enterprise agreement under which the employee is/was employed is:
No award
(c) ........ ...
(d) The date the employee started work with the respondent was
14/11/88
(e) The date of termination/proposed termination of the employee’s employment with the respondent was/is
20/5/1994
(f) The reason given by the respondent for dismissing the employee was
The reason given was that about a year ago I had been seen leaving the building with company stock and also recent missing of a $30 radio which was later found.
(g) The date on which the employee received written notice of the termination was
20/5/1994.”
I mention at the outset that the company made no allegation and there was certainly no evidence before me of any prior incident being part of the circumstances surrounding the termination. In terms of the way in which I have found on the facts or the suggested resignation as was put forward in evidence by the company the only incident relates to the allegedly missing radio.
The Court has received a certificate from Commissioner Palmer of the Australian Industrial Relations Commission dated 8 September 1994 that in accordance with subsection 170ED(2) of the Industrial Relations Act 1988 the Commission certifies that it has been unable to settle this matter by conciliation. This Court can therefore consider the merits of the application.
Evidence of the applicant
Mr Mohazab was first employed by Dick Smith Electronics in the Quality Control Department on 14 November 1988.
Initially Mr Mohazab was employed as a Quality Control Supervisor and then as Quality Control Manager in 1991.
In his evidence Mr Mohazab impressed me as a loyal employee. He indicated that it had taken him six years to build up a life and reputation with the company.
Mr Mohazab gave evidence that on 18 May he was called to a meeting with Mr Mahoney and was told that "an item is supposed to be missing from the department and has been moved to the department but the computer does not show any record of it". When asked if the company had allowed at any stage any other person to be present at that meeting he answered, no. Nor was he given an opportunity of having a union representative present at that meeting although he indicated he was not a member of a union.
The company placed a lot of reliance on a computer file dump that is annexed to the affidavit of Mr Rex Callighan (Exhibit M). Unfortunately it is quite clear from the evidence that at no stage did anyone see Mr Mohazab access the computer for this particular purpose. Moreover the evidence was that the particular computer was able to be used by a number of persons. It was Mr Mohazab’s practice when he came to his office in the morning to enter his password and then the machine could be utilised by other persons including at least two or three persons who worked in the area. It would also be possible for other persons to watch while a password was being entered and record the keys which have been typed in even though the actual password is not shown on the monitor.
What happened next was that the two senior employees, Mr Mahoney and Mr Callighan received a report of an unusual incident from an employee, Richard McLean.
Richard McLean was employed by Dick Smith Electronics from 8 July 1991 to 10 June 1994 and during the last year of his employment he worked in the Quality Control Department. Much of the case for the respondent relies on the evidence of Richard McLean who I found to be a less than satisfactory witness.
A careful examination of his affidavit indicates that there are significant differences between that of his affidavit evidence and the evidence of Mr Callighan, and fellow employees. In particular I refer to paragraph 7 of Mr Callighan’s evidence where he suggests that Mr McLean told him that:
“James, Joe and I checked under Mo’s desk and the radio was gone”.
Whereas in paragraph 31 and 32 of Mr McLean’s evidence he makes it quite clear that it was he that went and determined that the radio was under the desk.
I interpose at this time that on a couple of occasions I inquired whether a Mr Joe Salas was to be called to give evidence in the case. I understand that at the time of the hearing he was still an employee of the company. He was not called to give evidence in these proceedings so that his version is not available to the court as to whether or not he did look under the desk and see the radio was there. Certainly it does not appear from the evidence of Mr Oey that he looked under the desk.
Another factor in my mind is that evidence was given by Mr Mohazab that on a particularly significant day he arrived at work with Mr Salas. Again there is no evidence from Mr Salas to rebut Mr Mohazab's evidence.
In giving his evidence, Mr McLean, was a less than satisfactory witness. He, at page 73 of the transcript, gave evidence as to the fact that he did not remember the name of the particular item which is the subject of these allegations against Mr Mohazab, a replica of which is said to be exhibit G in the proceedings namely, an AM/FM Sing-A-Long radio.
Further, at page 75 of the transcript, there was some suggestion that one of the employees was sick on that day, however Mr McLean, in his evidence, could not recall what the various dates were at this time. There is also a reference, at page 77 of the transcript, to his recollection of Mr Mohazab leaving the premises and the difficulty I have with his evidence in that regard is that he does not recall the time that anybody else left that day.
That leads me to re-affirm the point about Mr Salas because it was based on evidence that there was some suggestion that Mr Mohazab had come in early to the office, whereas his evidence was that he arrived at the office at the same time as Mr Salas. If that had been the case and there had been some suggestion that this radio had left the premises of the company, then Mr Salas ought to be available to give that sort of evidence in support of the company's application. He was not called. Indeed, there is no credible evidence before me that any item. whatever it was, the replica of which is said to be here as exhibit G, ever left the company's premises.
Further, on page 84 of the evidence, contrary to the advice which was given to the two senior officers, Mr Mahoney and Mr Callighan, it appears that Mr Mohazab never gave, or handed to Mr McLean, a document to take down to the dock. In all these circumstances I do not accept Mr McLean's evidence.
Mr Oey, in a forthright way, at the commencement of his evidence indicated that he wished to retract from the affidavit that had been filed in these proceedings. He indicated that the court could not rely on any of the dates which had been given in his affidavit evidence.
It also occurred as a result of cross-examination by Mr Mohazab and some questions from myself that Mr Oey would not have been in a position to see Mr Mohazab make any orders on his computer. In effect it was impossible for him to see the operation of the computer from his office. I find that he did not see Mr Mohazab make this particular order that were complained about by the company. Again this left the officers of the company acting on information that was incorrect.
The company relied on the evidence of two witnesses, Mr Mitch Jeffrey and Ms Mary Jane Iverach, in support of the claim that Mr Mohazab had voluntarily resigned. I reject the evidence of Mr Jeffrey on the following basis. There was no opportunity given to Mr Mohazab to have somebody independent of the investigation present who might provide an independent recollection of what went on in this interview. The notes taken by Mr Jeffrey were never shown to Mr Mohazab at the time of the interview, and he was not asked to confirm that they were a true record of the interview.
Further, in his evidence, Mr Mohazab had indicated by way of an aside that Mr Jeffrey had told him that he had been a policeman of 10 years standing. I inquired of Mr Jeffrey about this issue and it was denied that this information was relayed to Mr Mohazab. However, he conceded initially, when asked, that he had nine years experience in the police force. I find that I do not accept his statement that he did not refer to the fact that he had previous police experience in conducting the interview with Mr Mohazab.
In giving his evidence as to the method in which the transcript was recorded he was not forthcoming and implied from his answer that he simply typed up his notes from his recollection. It subsequently emerged, from evidence given by Ms Iverach that there had been conversations on the office intercom between Mr Jeffrey and Ms Iverach as to the correctness of the individual parts of the interview. The evidence of Ms Iverach contradicts the evidence given by Mr Jeffrey as to the manner in which he produced this transcript. In the light of that. I place little reliance on the transcript.
I do not consider that on every aspect of the evidence in relation to this interview that Mr Mohazab's evidence is to be accepted and the version given by Mr Jeffrey and Ms Iverach is to be rejected. However, on any key issues where there is a difference I propose to accept Mr Mohazab's evidence. The reason for conceding that there may be some difficulties with Mr Mohazab's recollection of the interview arises out of a question put to him by counsel for the respondent. It was some time before Mr Mohazab applied his mind to the particular interview and he puts it at a date in September when the record of interview was first given to him. I propose to give him the benefit of the doubt that on some issues he may have simply been mistaken and was not intending to mislead the court.
To be specific in the light of what I have outlined where there is a conflict between the witnesses, I accept the answers given under fairly strenuous cross-examination by counsel for the respondent by Mr Mohazab as being correct, and this is set out at page 48 of the transcript. It was put to Mr Mohazab that:
"Yes, well, Mr Jeffrey never said words to the effect, did he, that you either resign or we get the police in, never said any words like that, did he?"
"Yes, he did"
"He never said to you words like, look, based on what I know from talking to others you are full of shit?"
"Yes, he did."
"He never raised his voice, did he?''
"A couple of times."
In light of what I have outlined I propose to accept Mr Mohazab's evidence and his answers in relation to cross-examination on those sort of issues.
It was strongly put to me at the end of the case in submissions by counsel that:
"It is the company's case that it never said that Mr Mohazab stole anything, we do not say that."
That may be the company's position at the time the matter came on for hearing, it was not the position of the representatives of the company at the time. It may well have been, the same had they conducted a proper and substantive investigation rather than act on the misleading information which they were given at the time.
The Macquarie Dictionary defines steal:
"To take or take away dishonestly or wrongfully especially secretly; to appropriate ideas, credit, words, etc, without right or acknowledgment; to take get or win by insidious, surreptitious or subtle means; to steal a nap during a sermon; to move, bring, convey or put secretly or quietly."
I need only point to the evidence contained in the affidavit of Vincent Mahoney at page 22:
"I then summarised for Mr Mohazab the result of our investigations to date and said to him words to the effect, "Now, our investigations indicate that you took the radio and returned it when you learned that we were aware that it had gone missing."
There is indeed, as I have said, no credible evidence that the radio, the replica of which is exhibit "G", ever left the premises of the company. The allegation which was clearly being put to him by the company at that stage was one of stealing.
In those circumstances I think that it is understandable that Mr Mohazab reacted in some of the ways in which he did. I have had the advantage of observing him over two or three days in these proceedings and I formed certain views as to how these events have affected him'
Given my finding that there was no proper investigation of the circumstances before these matters were put to Mr Mohazab, that further the procedures which were undertaken by the company were less than satisfactory on behalf of its investigating officers, and finally that there was no proper opportunity given to him to defend himself against the allegations made, I find that the company did in fact terminate him rather than accept his resignation.
I take that view from the factual circumstance that Mr Mohazab, after Miss Horn came into the room, was escorted from the premises and the document which is signed and which is relied on by the company, exhibit "L", was signed, in circumstances which are less than satisfactory, in the car park.
Ms Horn gave her evidence on the third day of the hearing. Ms Horn was the Personnel Manager of the respondent. I accept Ms Horn’s evidence that prior to her being called by Mr Mahoney to come up to the office she was unaware that she was to process Mr Mohazab’s resignation. However I note that her office was adjacent to the office of Mr Mahoney and she was aware that something unusual had been going on during the course of the day.
I accept Ms Horn’s evidence that she asked Mr Mohazab whether he wished to resign and that he confirmed that to her. However, at that stage it was too late. The company had embarked on a course of action which, to my mind, left Mr Mohazab with no alternative other than to consider that the best option for him was to seek a resignation or to suggest a resignation.
In my view, a fatal error of judgment, in so far as the company is concerned, was then made in that Ms Horn did not take Mr Mohazab out of the situation with which he had been confronted. I understand the evidence of Ms Horn to be - and I accept her evidence - that, having spoken to Mr Mohazab in that situation, she returned to her office and had a resignation typed. When Ms Horn either made the document available to Mr Callighan or when she returned to the office, it was too late because Mr Mohazab had already been escorted from the premises. I regard those circumstances as being a termination by the company.
If I am wrong on that finding then there is ample evidence to support the situation that Mr Mohazab was forced into a resignation and it would be my view that the resignation document cannot be relied upon by the company.
I understand from the evidence that Mr Callighan was given the document, exhibit 11, to have Mr Mohazab sign it. At that stage Mr Mohazab had left the premises and Mr Callaghan was forced to chase him to the car park to obtain the signature to the document.
It seems to me, in the light of the history that I have outlined, that the signature of Mr Mohazab on the resignation document, exhibit "L" was obtained under the duress of the situation in which he had been placed. As I have indicated, if Ms Horn had taken him to her office and there had been a further discussion or there had been time for him to reconsider the situation may have been different. Instead he was escorted from the building. This was an unusual course of events leaving in Mr Mohazab’s mind no doubt that his employment had ceased.
I also refer to the reliance which was place by counsel on the situations that Mr Mohazab had telephone Mr Callaghan and been asked to put his application for reconsideration in writing. I accept that version of the incident. However, it seems to me that the company should have been aware at that stage that there was a difficulty with the matter. It is not clear from the evidence whether that information was reported to Ms Horn but had it been it may well have then given her the opportunity to reconsider the matter and possibly have further discussions with Mr Mohazab.
That is also supported by the evidence of Mr Mahoney, that Mrs Mohazab rang two days later and asked if her husband could get his job back. There is no evidence before me as to whether that was reported to Ms Horn but had it been, then the company had a further opportunity of reconsidering the situation.
I find that the company is in breach of section 170DC of the Industrial Relations Act 1988 and also 170DE(1) of the Act.
If it occurs that there may be some dispute or that I am in error in relation to my finding in relation to 170DE(1), in the light of the value which is stated to be about $30.00, the length of time which Mr Mohazab spent with the company and the lack of evidence from the respondent that there have been any other issues of concern in relation to his capacity and conduct, then I would make a finding that the termination in any case was harsh, unjust or unreasonable.
I turn now to the question of reinstatement. Ms Horn gave evidence on behalf of the company as to the practicality of reinstating Mr Mohazab in any position. In view of my decision I then gave the company a further opportunity of being heard on the question of reinstatement. I note that evidence was given that Miss Louise Martin, who was the second-in-charge has been brought in and has been acting in the position since late 1994 and that there in no other position that would be suitable for his technical background expertise and level of salary. I understand his former position may have been filled from 30 June 1994.
In this matter having heard from Ms Horn and from the applicant, I consider that the reinstatement of the applicant in the position which he held previously is the proper remedy.
I am not satisfied that it is impractical to reinstate Mr Mohazab in the position of quality control manager to which he held immediately before the termination and I therefore declare that:
The termination of the employment of the applicant contravenes Division 3 of Part 6A of the Industrial Relation Act 1988 and the court orders that the applicant be reinstated by the respondent company in the position of "Quality Control Manger".
That the applicant occupy the position held by him immediately prior to his termination.
The respondent to reinstate the applicant on the same terms and conditions that applied to the applicant at the date of termination and that such period commence from the date of termination.
The period between the date of termination and the date of this decision be treated as continuous employment of Mr Mohazab by the respondent company for all purposes.
The respondent company to pay to the applicant the remuneration lost by the employee because of the termination between 20 May 1994 and the date of this judgment, within 7 days of today.
I note that on the oral application of counsel, I dispense with the necessity to file a notice of motion. On the oral application of Mr Scott for a stay of these proceeding pending any review by the court, I note that the company is to pay the applicant within 7 days the amount of $18,000.00 and that I have warned Mr Mohazab that if I am wrong in my decision and the court upholds the company in any review, then it is probably that he may be ordered to repay that money. Nevertheless on those conditions I grant a stay of these proceedings pending the lodgement of a review of my decision.
The stay will continue for 21 days from today or further order of the court and it is conditioned on the payment to the applicant within seven days of the sum of $18,000.00
REPRESENTATION
Applicant in person
Solicitor for the Respondent: Ms Sarah Bower, Cutler Hughes and Harris
Counsel for the Respondent: Mr Malcolm Scott
I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of Judicial Registrar McIlwaine delivered orally on 27 March 1995 and revised from transcript and issued on 31 May 1995.
Associate: Caroline Sternberg
Date: 31 May 1995
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