Perkins v Grace Worldwide (Australia) Pty Limited

[1996] IRCA 515

DECISION NO:515/96

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )     No. NI 1208R of 1996
  )
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN:           STEPHEN JAMES PERKINS

Applicant

AND:  GRACE WORLDWIDE
  (AUSTRALIA) PTY LIMITED

Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     4 September 1996

EX TEMPORE JUDGMENT

This is a review of the exercise of a power by a Judicial Registrar in determining an application under section 170EA of the Industrial Relations Act, 1988.  The application by Mr Stephen Perkins concerned the termination of his employment on 22 January 1996.  He had been employed by his employer, Grace Worldwide Australia Pty Limited ("Grace Removals") for eight and a half years.  The evidence given before the Judicial Registrar was supplemented by further oral evidence in the review and further cross-examination of material witnesses.

Perkins was employed as the City Metro Fleet Controller at Grace Removals which was a removalist business conducted by the employer.  His work involved allocating work to employees, preparing rosters and liaising with clients.  He also assisted in other administrative work.  The relevant events leading to his termination may, for present purposes, be summarised in the following way.  The Southern Regional Manager of the employer, Mr Stuart Edmond Pepper, became aware of allegations that Perkins had been involved in the provision of cigarettes containing marijuana to other employees of the employer.

He, along with a Mr Edward Smith, interviewed two employees, Mr Jason Abbott and Mr Jonathon Harris, and obtained from them statutory declarations that provided a factual foundation for the allegations, that is, Perkins had provided them with cigarettes containing marijuana.  These statements were obtained on 19 January 1996.  the text of the statutory declarations was written by Smith, synthesising what he had been told by each of the employees.

A decision was then taken to terminate Perkins' employment.  He was interviewed on 22 January 1996 and it is common ground that the meeting proceeded in the way described by Pepper in his evidence before the Judicial Registrar, namely and I quote:

"You had a conversation with Mr Perkins.  Can you tell the court, as best you can recall, what the conversation was?---Well, I asked Mr Perkins to come to my office.  I think, my - from recollection my words were, "No doubt you're aware that theres been some serious allegations made about you?"  To which he responded, "Yes, I've heard rumours".  I then went on to say that, "Well, we've received two stat decs to the effect that you've been supplying or giving marijuana whilst on site.  From my memory his response was, "That's bullshit" or words to that effect, if you'll excuse me."

Skipping several words:

"To which I responded, "Well, it's our view with the two stat decs as senior management of the company has investigated this matter and they have no alternative or we've no alternative but to terminate your services."

What did he say to that?---I think his response then was, "Is that it?"

"Yes".And I said, "Yes."  And I just asked for his keys and went through some transport arrangements to get Mr Perkins home and basically that was where the matter was left."

Having regard to the way the cases were presented, there are three central issues.  The first is whether as a matter of fact Perkins did as alleged.  If he did, the only issue that then arises is whether his termination was in contravention of section 170DC and, if so, what remedy, if any, should be granted.  Reinstatement is sought.

If the employer, who bears both the evidentiary onus of proving the fact of distribution of the cigarettes and the onus imposed by section 170EDA to establish that there was a valid reason, fails to establish the fact that the cigarettes were distributed, then it would follow that the termination was in contravention of section 170DE(1).  It was not submitted otherwise by the employer.  Again it would raise the issue of remedy.

Perkins gave evidence.  He denied providing cigarettes containing marijuana to any employee at work.  In answering some question he appeared to tailor slightly the answers to obscure the truth, or lessen the effect of an answer that might be adverse to his interests.  Nonetheless, he gave the general impression of answering truthfully the questions he was asked.  Abbott gave evidence about three conversations with Perkins.  The first was about the consumption of marijuana.  The second about the provision by Perkins of marijuana to him and the third was one which led to the actual provision of a cigarette.  Abbott said he was given one by Perkins which he smoked shortly thereafter with an employee of a company operating from adjacent premises.

His oral account before me of what occurred was cursory.  The context in which the first and second conversations took place was not at all detailed.  His account did not appear to me to be a spontaneous one based on an actual recollection of events.  It was, in that respect, a studied one.  Both he and Perkins have an interest in adhering to their stories.  Perkins' interests are obvious.  Abbott's interest derive from having given an account of events to two senior employees of the employer who acted on that account and sacked a comparatively senior and long-standing employee.  Abbott remains employed by the employer and adherence to his earlier account would plainly be in his interests.

Mention should be made of Harris who also gave evidence.  He denied events occurred as he had stated in his statutory declaration.  That is, he denied that Perkins ever gave him a cigarette containing marijuana.  Nothing in his demeanour suggested he was not telling the truth.  His explanation for making the statement was that he believed that had he not done so he would have lost his job.  It is a plausible explanation.  Where then does the truth lie?  Or, more accurately, am I justified in making a finding that Perkins provided cigarettes containing marijuana to Abbott and to Harris?

In relation to Harris, having regard to the evidence of Harris, I plainly cannot.  In relation to Abbott, it is necessary to bear in mind the cautionary words of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. Some of what was said by Dixon J at 362 bears repeating, and I quote:

"[I]t 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 references."

Plainly the allegation against Perkins is a serious one.  While Abbott stated in evidence before me and the Judicial Registrar unequivocally that he was given a cigarette containing marijuana, that statement has it genesis in a written document prepared by a senior employee of the employer.  It is true that it is a synthesis of what Abbott said.  However, for reasons earlier given, Abbott would have an interest in adhering to that account as recorded by the senior employee.  As earlier noted, his evidence concerning the circumstances surrounding the first two conversations with Perkins is vague.  I have not reached a point where I can be satisfied that Perkins gave Abbott a cigarette containing marijuana.  Accordingly, I do not make a finding to that effect.  Thus the employer has not established it had a valid reason for the termination of Perkins' employment for reasons connected with his conduct.

Accordingly, the termination of his employment was in contravention of section 170DE.  It was also in contravention of section 170DC.  Plainly Mr Pepper, armed with two statutory declarations had a sound basis for believing, on 22 January 1996, that Perkins had provided two employees with cigarettes containing marijuana.  However he gave Perkins, in my opinion, an inadequate opportunity to defend himself.  Indeed the decision to terminate was made before Perkins was interviewed.  No details were provided to him of what the allegations were and by whom they were made.  The opportunity he was given, in my opinion, was insufficient and failed to meet the requirements imposed by section 170DC.

I turn to the question of remedy.  Reinstatement is, in my opinion, impracticable.  Perkins' position was a comparatively senior one involving considerable  responsibility in the management of the workforce of the employer in the business it conducted.  He answered to, and if reinstated, would answer to Pepper.  Pepper believes the allegations against Perkins are true.  While I have made no finding in these proceedings confirming that belief, I nonetheless accept that Pepper has a sound basis for believing they are true and I accept that his belief is reasonably held.  Pepper says, and I accept, that he has lost all confidence in Perkins and would have great difficulty in working with him.  It would, in my opinion, be impracticable to reinstate Perkins with this consequence.

I propose to award compensation.  The maximum allowable is $23,670.  Perkins is disabled and has not, it appears, worked since his termination.  I propose to award the maximum compensation and I so order.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

........ ........ ...
Associate:  Alexandra George

Dated:    18 October 1996

APPEARANCES

Advocate for the Applicant:         Mr G Maniatis

Australian Services Union

Counsel for the Respondent:         Mr R S Warren

Solicitor for the Respondent:       Haywards Solicitors

Dates of Hearing:                   4 September 1996

Date of Judgment:                   4 September 1996