North-Coombes Pty Ltd v Reece Pty Ltd
[1996] IRCA 161
•26 April 1996
DECISION NO: 161/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - Leave to make Late Application Refused - Termination at initiative of Employer - Termination for Valid Reason - Termination not Harsh, Unjust or Unreasonable.
Industrial Relations Act 1988,
CASES:
Nelson v Scholle Industries, IRCA (unreported) 17 October 1995, Matter No 1234R of 1995, Decision No 588 of 1995
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Brodie-Hanns v MTV Publishing Limited IRCA (unreported) 31 October 1995, Matter No VI-1725R of 1995, Decision No 585 of 1995
Mahnken v Saunders Logging Pty Ltd (1994) 57 IR 237
NORTH-COOMBES PTY LTD v REECE PTY LTD
No. VI-95/3881
Before: Ryan JR
Place: Melbourne
Date: 26 April 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-3881 of 1995
B E T W E E N :
SCOTT NORTH-COOMBES
Applicant
AND
REECE PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 23 February 1996
THE COURT ORDERS:
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-3881 of 1995
B E T W E E N :
SCOTT NORTH-COOMBES
Applicant
AND
REECE PTY LTD
Respondent
BEFORE: RYAN JR
PLACE: MELBOURNE
DATE: 26 APRIL 1996
REASONS FOR JUDGMENT
The Applicant seeks compensation in respect of a claim of unlawful termination of employment.
The Respondent asserts that:
the claim is six months late (termination 25 January 1995, application 18 July 1995)
the Court should not extend time to allow the application to be made pursuant to S170EA(3)(b)
(iii) in any event the termination was for a valid reason and was not harsh, unjust and unreasonable and if time is extended the application should be dismissed
Findings Re Extension of Time and Validity of Termination
While submissions were made on the extension to time at the outset, the Court decided that it was not practicable to determine whether an extension of time should be granted or refused until it heard the evidence relating to the termination and the circumstances associated with the termination.
The Court has decided that this is not a case in which an extension of time should be granted and the application is dismissed for lack of jurisdiction.
The Court has also decided that if an extension of time had been granted the termination was for valid reason and was not harsh, unjust or unreasonable.
Background - Stock Shortfall at Box Hill Store
The Respondent runs a national plumbing supplies and hardware business with 51 stores in Victoria and 30 stores in other states.
In September 1994 the Managing Director appointed a Mr Michael Keet as manager of the Box Hill store. The store had presented with a shortfall in stock to the value of approximately $150,000 at the close of the 93/94 financial year. Mr Keet was sent in as manager to ensure that general and conventional policies on invoicing and documentation were enforced.
It is clear that until that time, and possibly for some time thereafter, goods were going out of the Box Hill store without documentation. It is also clear that the previous manager (who became deputy manager when Mr Keet arrived) and the previous deputy manager (who became third in charge when Mr Keet arrived) and other counter staff, including the Applicant were involved in allowing goods to leave the store without proper documentation.
Internal Audit and Police Investigations
On Thursday 22 December 1994, Mr Keet received information from a senior member of staff who was somewhat relaxed after an annual Christmas party. That information suggested that certain members of staff, including the Applicant, were involved in the unauthorised removal of a number of Aquamax hot water units.
On Friday 23 December 1994 Mr Keet discussed these allegations with Mr Colin Riddiford, the Respondent’s internal audit and security manager. In January 1995 Mr Riddiford conducted an investigation which concentrated on the computer records of the Aquamax hot water units going in and out of the Box Hill store. Having discovered about 12 or 13 units which were not accounted for, he reported his conclusions to police, handed over certain documentation to them and he claims that thereafter he left enquiries entirely to the police and was not involved in any way in those enquiries.
Circumstances Leading to Late Application
The Applicant’s employment ended on 25 January 1995. The circumstances are set out in later findings and are not generally relevant to the determination of whether or not the Court should extend time to allow this application to be made pursuant to S170EA(3)(b). However, the credibility of the Applicant has been assessed having regard to all his evidence and not only his evidence as to why, in all the circumstances, time should be extended by some six months to allow him to make and pursue his claim of unlawful termination of employment.
The Applicant asserts, and it is conceded, that on 24 January 1995 he was interviewed by police in relation to the alleged theft from the Respondent of hot water units.
The Applicant asserts, and it is conceded, that at the time his employment ended he was still under police investigation. The Applicant was later charged with theft and that charge was dismissed with costs awarded in his favour.
The Applicant initially asserted, but it was not conceded, that about 7:00 am on 24 January 1995 he contacted solicitors and spoke to a solicitor. He named the solicitor and stated in his evidence on 8 February 1996 (T83):
“I told her the story what had happened with the police and she instructed me not to say anything to anyone about the matter until she had been fully informed”
On 9 February 1996, under cross-examination by Counsel for the Respondent, the Applicant initially repeated his claim that he rang his solicitor at about 7:00 am on Tuesday 24 January 1995. At first he said (T2):
“I rang her office and I was put through to her. I just briefly explained the situation with the missing hot water services and she instructed me not to say anything to anyone until she had been fully instructed”
However, when pressed as to whether the solicitor’s office was open at 7:00 am, the Applicant changed his evidence and claimed that he spoke to his solicitor’s secretary at 7:00 am and (at T3) was told that the solicitor “was not in until 8 o’clock, so I rang her at 8”.
The Applicant admitted that on 8 February 1996 he had given evidence that his solicitor had warned him on 24 January 1995 that his employment might be threatened and under cross-examination on 9 February 1996 he stated (T3):
“well, she suggested that they may try making it hard for me but just to adhere to their policies until, you know, until it’s all sorted out”
The Applicant claimed, in cross-examination on 9 February 1996, (at T6) that he did not lodge an application for unlawful termination of employment until 18 July 1995 because his solicitor never instructed him on time limits and said:
“she did not have an understanding of the law”
“that it was a bit hard...to proceed with an unfair dismissal case when I’ve got a criminal case still pending”
“just as a precaution write a letter to Reece (the Respondent)...a precaution - if my criminal case had been dismissed then I would have some sort of leg to stand on”
The Applicant had earlier claimed in his evidence in chief on 8 February 1996 that:
after the termination of his employment his solicitor had instructed him to write a letter to the Respondent
he did so on 27 February 1995 and stated therein that he believed his dismissal was unfair and unreasonable
he concluded the letter as follows:
“I’ll be following this matter in due course”
On 30 January 1995 (Exhibit A1) the Applicant’s solicitors had written to Mr Keet as follows:
“We advise that we act on behalf of Mr North-Coombes
Mr North-Coombes instructs that on Wednesday 25 January 1995, he was dismissed from his employment as a counter sales clerk with your company. Mr North-Coombes advises that he has worked for this company for five years.
Mr North-Coombes instructs that he does not understand the basis for his dismissal. Accordingly we would be grateful if you could clarify, in writing, the reasons for your termination of his employment.
We look forward to hearing from you in the near future”
Mr Keet had replied on 6 February 1995 (Exhibit R1) as follows:
“Mr Scott North-Coombes was dismissed on Wednesday 25 January for failing to follow well established and documented company policies by allowing company goods to leave the premises without being charged”
During the hearing the Applicant gave conflicting evidence on a number of occasions. He changed his evidence on at least two occasions. He did not call his solicitor to give evidence as to why he did not lodge an application until 18 July 1995 and he named four employees of the Respondent whom he claimed could support his version of what happened with the Platypus Plumbing order on 24 January 1995 but he did not call any of these employees to substantiate his claims.
Findings Re Late Application
The Court finds that:
1.the Applicant was provided with notice of termination by way of the letter entitled “summary dismissal letter 25 January 1995” (Exhibit R7)
2.the Applicant refused to accept or sign the letter
3.the letter came into the possession of the Applicant, although only briefly, on 25 January 1995
4.the letter was unequivocal, and stated the date and reason for termination
5.the Applicant received written notice of termination in compliance with S170EA(3)(a)
6.the Applicant did not give an acceptable explanation of the delay in lodging his claim of unlawful termination
7.the Respondent was prejudiced by the delay
8.the Court in this case is in a position to assess the merits of the substantive application and for reasons to be given later would have dismissed the application in any event
9.consideration of fairness as between the Applicant and other persons in a like position are relevant and, to the extent that this criterion provides assistance, it favours the Respondent in that this Court should not encourage late applications
In respect of 1 to 5 above the Court relies on Nelson v Scholle Industries, IRCA (unreported) 17 October 1995, Matter No 1234R of 1995, Decision No 588 of 1995, Von Doussa J at page 6.
In respect of 6 to 9 above the Court relies on Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 and 349.
In respect of 9 above the Court also relies on Brodie-Hanns v MTV Publishing Limited IRCA (unreported) 31 October 1995, Matter No VI-1725R of 1995, Decision No 585 of 1995, Marshall J at page 8 and Mahnken vSaunders Logging Pty Ltd (1994) 57 IR 237.
Termination at Initiative of Employer
Given the finding of lack of jurisdiction it is not necessary to make a finding on whether the termination was at the initiative of the employer. There is some evidence which suggests that the Applicant abandoned the employment rather than be confronted with another staff member against whom the Applicant had made an allegation. However, on balance, the termination appears to have been at the initiative of the employer. Certainly, the employer had intended to terminate the applicant and had prepared a letter of termination before the final interview. There is evidence that the Applicant had been handed the letter of termination before he made the allegation against his fellow employee and that he refused to accept or sign the letter and that he was asked to sign the letter before he made the allegation.
Findings in Respect of Termination
It is also unnecessary to make any findings in respect of the termination.
But having heard all the evidence the Court is in a position to do so and finds that:
on 11 January 1995 the Store Manager at the Respondent’s Box Hill store explained and reinforced to the Applicant company policies and procedures including the necessity to comply with invoicing and cash sale procedures
on 11 January 1995 the Applicant and the Box Hill Store Manager signed a job description which related to the Applicant’s position as a counter sales person and the documents specifically referred to “ensuring that invoicing (and cash sales) procedures are followed correctly”
at about 10:00 am on 24 January 1995 the Box Hill Store Manager, in company with the Respondent’s internal audit and security manager, warned the Applicant about writing inappropriate comments on delivery control sheets, despatching goods without delivery dockets and specifically providing without charge a cistern washer that day to a customer
at about 10:33 am on 24 January 1995 the Applicant released to a customer a wall furnace installation kit Product Code 1603305 but did not invoice the goods or include them in a delivery or packing document or “slip” numbered 5287007
at about 12:30 pm on 24 January the Box Hill store manager confirmed by telephone that the wall furnace installation kit had been received at and delivered to the premises of Platypus Plumbing at 105 Finlayson Street, Rosanna
at about 12:58 pm the Box Hill Store Manager raised Invoice 5287034 on the account of Platypus Plumbing Account No 713685-1 and this invoice records the supply of one wall furnace installation kit on 24 January 1995
the Respondent’s compact disc records of goods invoiced and supplied also records the goods as invoiced to Platypus Plumbing on 24 January 1995 under the more specific title of “1 Abey 1965 external wall external flue kit, value $163.87”. A printout of the record also contains the following statement:
“taken at 10:33 am but not charged at time. Refer Invoice 5287007”
copies of Invoice 5287007 contain hand written notes made by the Box Hill Store Manager at about 12:58 pm on 24 January 1995 and read as follows:
“flue kit supplied by Scott #1603550”
“flue kit was charged by M Keet later on Invoice 5287034 12:58 pm”
(for the record Scott refers to the Applicant and Mr Keet to the Store Manager)
on the afternoon of 24 January 1995 the Applicant was interviewed by police in respect of separate and unrelated allegations of theft of Aquamax hot units and at Ringwood Magistrates Court on 10 July 1995 a charge of theft was dismissed against the Applicant and the Chief Commissioner of Police was ordered to pay costs in the amount of $2,500
at about 7:45 am on 25 January 1995 the Box Hill Store Manager purported to terminate and probably did terminate the Applicant’s employment and stated in a written notice of termination that he was concerned about the Applicant’s “work performance...in particular (his) performance in relation to customers obtaining goods without proper or any documentation”
the termination of employment, if a termination of employment at the initiative of the employer, was for valid reasons associated with the performance and conduct of the Applicant and did not constitute a breach of S170DC or S170DE(2)
the primary reason for the termination of employment, if a termination at the initiative of the employer, was the provision of the flue kit Product No 1603550 to an employee of Platypus Plumbing on 24 January 1995 at about 10:33 am without proper documentation and contrary to company policy, contrary to the responsibilities documented in the position description signed by the Applicant on 11 January 1995, contrary to the counselling of the Applicant, on 11 January 1995 and contrary to the warning given to the Applicant at about 10:00 am on 24 January and recorded in writing and signed by the Applicant
contrary to the assertion of the Applicant the flue kit Product No 1603550 was not released to an employee of Platypus Plumbing by Frank Peronace, an employee of the Respondent, or by any other employee of the Respondent other than the Applicant
Credibility
In terms of credibility the Applicant claimed (T87, 8 February 1996) that on 24 January after he left the meeting at which he had been counselled and warned by Messrs Keet and Riddiford:
Mr Peronace “came up to (him) with the (Platypus Plumbing) invoice and said that the plumber (from Platypus Plumbing) had obtained another flue kit for a wall furnace and that he (Peronace) did not know what it was or how to find it on the computer and that (the Applicant) said (he) would look after it”
the Applicant
(a)told Mr Peronace he “would look after it” and “proceeded then to try to find it on the computer, to no avail”
(b)“asked Dale Jackson. He could not find it”
(c)“asked Gerard Webb. He could not find it”
(d)“asked Davey Crockett. He could not find it”
(e)telephoned Howard Feeley who said he would ring back but no return call was received from Mr Feeley
(f) told Mr Keet “that the wall furnace had not been invoiced and he(Keet) said he would look after that, and that is the last (the Applicant) saw of that invoice
The Court notes that:
Messrs Peronace and Keet deny that they were involved as outlined in (a) and (f) above
the Applicant did not call Messrs Jackson, Webb, Crockett or Feeley to support his claims
Mr Webb was not at work on 24 January and when the Applicant was confronted with that evidence he conceded that he must have been mistaken in suggesting that Mr Webb had been asked to find the product code
there is some doubt as to whether Mr Crockett was at work on 24 January
The Court also notes that Mr Jackson was at the termination meeting on 25 January but the Applicant did not call him to give evidence as to what he asserts happened at that meeting.
Wherever the evidence of the Applicant conflicts with or is inconsistent with the evidence of Messrs Keet, Riddiford or Peronace the Court has preferred the evidence of the Respondent witnesses.
ORDER
The application be dismissed.
I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 26 April 1996
Appearances:
Counsel for the Applicant : Ms Lesley Fleming
Solicitor for the Applicant : Slater and Gordon
Counsel for the Respondent : Mr Bruce Shaw
Solicitor for the Respondent : Purves Clarke Richards
Date of Hearing : 7, 8 and 9 February 1996
Judgment : 26 April 1996
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