Robert Giarrusso & Transport Workers Union of Australia v Ampol Petroleum (Victoria) Pty Limited
[1995] IRCA 71
•6 Mar 1995
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 1126 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N:
ROBERT GIARRUSSO &
TRANSPORT WORKERS UNION OF AUSTRALIA
Applicants
A N D
AMPOL PETROLEUM (VICTORIA) PTY LIMITED
Respondent
Reasons for Judgment
6 March 1995 PARKINSON JR
This is an application made pursuant to S170EA of the Industrial RelationsAct 1988 (“the Act”). The applicant seeks the following remedies:
an order declaring the termination of the employer’s employment of the employee to have contravened Division 3 of Part VIA of the Act;
an order requiring the respondent to reinstate the employee in employment;
an order that the respondent pay compensation to the employee;
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.
This proceeding occupied seven sitting days of the court and the following witnesses were called to give evidence:
Robert Giarrusso - the applicant
Katherine Porter - consulting psychologist
Bradley Grigg - terminal operator, Ampol (Newport) and union delegate (National Union of Workers)
Danny Ryan - bulk fuel driver, Ampol (Newport) and union delegate (Transport Workers Union)
Anthony Bonnici - blender, Ampol (Newport)
Christopher Fennell - organiser, Transport Workers Union
Renata Giarrusso - applicant’s wife
Ronald Wilson - service manager, Le Mans Toyota
Peter Hahne - warehouse supervisor, Valvolene
Christopher Marriott - operations manager (Victoria) for the respondent
Teresa Netherton - lubricant despatch coordinator, Ampol (Newport)
Michael Jamieson - logistics analyst (Victoria & Tasmania) for the respondent
Bruce Jack - lubricants production foreman, Ampol (Newport)
History of employment and background to termination.
The applicant is 41 years of age, with a dependant spouse and two young children. He was employed by the respondent at its Newport Depot as a fuel delivery driver and had been so employed for a period of seven years. At the time of the termination of his employment he was the respondent’s only bulk oil delivery driver. He worked the day shift and some overtime when it was available. His employment was terminated by the respondent on 11 July 1994 when he was summarily dismissed for serious and wilful misconduct.
It is appropriate to set out the background to the termination of the applicant’s employment. I commence with the events immediately leading up to the termination of the employment.
The evidence in the proceeding was that there had been an ongoing undercover police operation at the respondent’s Newport depot investigating allegations of theft of motor oil from the respondent. The allegations were that employees of the respondent were stealing oil for their own use or profit. Managers of the company were aware that this police investigation was occurring. It is apparent from the evidence in the proceeding that some surveillance of drivers was undertaken. Mr Giarrusso gave evidence as to his suspicion that he was being followed whilst carrying out bulk oil deliveries some time in May 1994. There was no evidence of that surveillance, however there was evidence that in April 1994 the respondent arranged for surveillance of the applicant by a private investigation agency. A report as to this surveillance was produced by the agency and provided to management of the respondent on 13 April 1994 (Exhibit M6). That report provides detailed information as to the applicant’s movements on three days during the week ending Friday 8 April 1994. It provides no basis upon which it could be alleged that the applicant was involved in any criminal or illicit activity. The report was speculative and inconclusive at best.
Subsequent to this report being received but, according to the respondent’s witnesses, unrelated to it a police operation occurred involving searching by warrant the homes of a number of employees of the respondent for Ampol product. These searches took place on 30 June 1994. The applicant’s premises were amongst those searched. The applicant’s neighbours premises were also searched by consent. At the applicant’s garage the police took possession of a drum of Ampol Solvent 143 and a small container of valvolene. These products were apparently seized on the basis that they were Ampol products. The applicant informed the police and subsequently the respondent that he had purchased the drum of solvent some time before through the staff discount purchase scheme operated by the respondent, and that the single packaged product had been purchased from the local supermarket. No charges were ever laid against the applicant by the police in relation to the investigation.
On that same day the respondent was informed by the police that Ampol product had been found at the applicant’s premises. The respondent, acting upon that information, called the applicant in and sought an explanation for the presence of the product on his premises.
This meeting took place on 30 June 1994 and was conducted by the respondent’s manager Mr Marriott. The applicant explained that he used the product because he serviced both his own and friends’ vehicles at home. He explained that the drum of oil had been purchased by him some time previously through the respondent’s discount purchase scheme and said that there would be an invoice copy for it somewhere.
The applicant was advised that pending the investigation of the product found on his premises he would be stood down on full pay. He was required as a result to remain available to be contacted by the respondent and to telephone in to the respondent each morning.
Reasons for the termination: S170DE(1)
On 5 July 1994 a further meeting occurred between the applicant and Mr Marriott. This meeting was described by the latter as the “Ampol Inquiry”. Also present at that meeting were Mr Ryan and Mr Annand.
The applicant was questioned again as to the product found on his premises in respect of which repeated his explanation. He was informed that despite searching no such invoice had been located. In addition a number of other matters concerning the applicant’s journeys and times for trips were raised.
The evidence of the applicant, which I accept, is that a long list of dates was read out to him and he was asked for an explanation of the length of time taken to complete a particular job or run on that day. The evidence was that Mr Marriott read from a document which subsequently turned out to be a handwritten version of a performance report prepared by Ms Netherton from her diary notes (Exhibit M9) in respect of the applicant, but that this document was not made available to the applicant and no opportunity was given to him to access trip sheets or delivery dockets which would have assisted him in identifying the detail of the journeys in question.
I am satisfied that the matters put forward by Mr Marriott at those meetings as constituting unexplained delays and deviations in the applicant’s trips were viewed by him as somehow relevant to the allegations and investigation of missing Ampol product. I do not accept that they were being relied upon as work performance issues significant enough on their own to warrant termination of employment.
I am satisfied that the circumstances of the suspension and the termination of the employment of the applicant arose directly out of the police investigation, the private investigator’s report, and conclusions drawn by the respondent in relation to Ampol products found on the applicant’s premises and alleged delays and journey deviations.
It should be noted that the respondent’s evidence was that at the time of the termination a search had been done of staff invoices and no invoice for the purchase alleged by the applicant was located. As will be seen this was not to remain the case and the respondent’s conclusions as to the unauthorised possession of the product was wrong. I discuss this later in this decision.
On 11 July 1994 a further meeting occurred. The applicant was handed a letter (Exhibit Y6) advising him of the termination of his employment. Having regard to the nature of the case put by the respondent in these proceedings it is appropriate to set out in full the letter of termination received by the applicant that day and the reasons for the termination contained in that letter. It read as follows:
“Dear Mr Giarrusso,
On Thursday 30th June 1994 I received information from the
Victoria Police that you had at your home a number of Ampol
products including a 20 litre container of Solvent 143. Additionally it
has recently come to my knowledge that you have been engaging in
repeated and substantial diversions whilst driving the company
delivery vehicle on company time.
Due to the seriousness of the information provided, you were stood
aside on pay until the outcome of the Ampol enquiry was completed.
During this enquiry your explanations have been sought and received.
Having regard to all of the information available to me including your
explanations I am satisfied that:-
a) you had at your home unauthorised property of Ampol (Solvent 143) and
b) that whilst on company business and on company time you made unauthorised and repeated stops to complete “personal
business”.
In reaching a decision I have also taken into account your
unsatisfactory record of service.
The company considers these matters constitute a (sic) serious misconduct and your employment is terminated immediately.
Your are requested to collect all personal belongings, return company
issued items, and leave Newport Terminal immediately.
Monies outstanding to you will be paid at the earliest time.
Yours faithfully,
CHRIS MARRIOTT
Operations Manager Vic/Tas.”
The applicant’s employment was terminated and he filed an application
pursuant to S170EA of the Industrial Relations Act. There was some industrial action arising out of the termination of the applicant’s employment, and agreement was reached in relation to ongoing payment of the applicant’s base wage subject to reimbursement in the event that his claim before this court was not successful.
On the day of the termination of the applicant’s employment, a meeting was held between the respondent and the applicant’s union, the Victorian Branch of the Transport Workers Union of Australia, wherein the reasons for the applicant’s termination of employment were discussed.
I am satisfied that the principal issues discussed at that meeting were the matters of the unauthorised product and allegations of theft of company product. At that meeting Mr Marriott advised the union officers that the respondent had a video implicating the applicant in misappropriation of company product. No other matters were raised in relation to the decision to terminate the applicant’s employment. The only matters the subject of the discussion as to the company’s decision to terminate were those relating to misappropriation of company property.
I am satisfied also that the letter of termination is clear on its own terms as to the reasons for the termination, being those matters specified in paragraphs (a) and (b) therein.
At the trial the allegation as to unauthorised company product was not pursued. At some time during the intervening period between the termination of the employment and the commencement of the hearing of this matter a copy of the invoice verifying the purchase of the solvent by the applicant from the respondent’s discount staff purchase scheme was sent to the solicitors for the applicant. The court was informed that the invoice was verified by the respondent.
The allegations against the applicant made and contained in paragraph (a) of Exhibit Y6 were simply wrong. The result was that the fundamental allegation upon which the termination of the applicant’s employment had been based was proven to be wrong and his explanation shown to be the truth. The foundation for any termination being justified as being for a valid reason disappeared at that point in time. Further on the evidence before me in these proceedings the allegations of unauthorised and repeated diversions for “personal business” were not proved.
It is necessary for me to discuss in detail and make findings as to the true reason for the termination of employment because at the trial of this matter the respondent’s case was quite different to that which had been relied upon in the letter of termination. At trial all reliance upon allegations of possession of unauthorised company product and repeated (my emphasis) unauthorised deviations on personal business was abandoned, although one instance of deviation to have lunch was relied upon.
The case of the respondent at the trial related to the failure of the applicant to report on delays to his supervisor Ms Netherton, his lack of cooperation with her in the implementation of a new procedure of oil delivery, and his deviating 200 metres off the Geelong Road at lunchtime on one occasion to have lunch at home with his wife. This latter matter was the subject of innuendo in the private investigator’s report, however it was the fact of the diversion rather than any other aspect of it which was ultimately relied upon in the proceedings. It should be noted that this lunchtime deviation occurred in April 1994 some three months prior to the termination of the applicant’s employment and, although within the knowledge of the respondent, was not acted upon or complained of by the respondent at any time until the Ampol enquiry and termination meetings of July 1994.
Work performance issues and their relationship with the termination.
I turn now to consider those matters of work performance which are complained of. In February 1994 a new system of ordering and supply of bulk fuel oil was adopted by the respondent. This system, which was developed and implemented during the applicant’s absence on annual leave, required that no deliveries be made without a previous order being placed. In addition, the applicant was obliged to report to a new supervisor, Ms Netherton, who would direct his daily work allocation. As part of that reporting relationship the applicant was required to report any delays in the work schedule and the reason for those delays.
The applicant was informed of these changes by letter received whilst he was on annual leave. At the time of commencing the supervisory role Ms Netherton adopted a practice of monitoring all of the applicant’s work activities and noting in her diary all complaints and queries relating to the applicant’s work performance. The evidence was however that Ms Netherton was not responsible for disciplinary aspects of the applicant’s employment.
Immediately upon the applicant’s return to work from annual leave in February 1994 difficulties arose both in the application of the new procedures and in the reporting relationship between the applicant and Ms Netherton. The applicant was frustrated by the inflexibility of the new arrangements and by what he perceived to be their lack of customer service orientation. His evidence was that he felt he was continually being queried as to his actions by Ms Netherton in a manner which indicated she had little appreciation of the realities of the process of loading and delivering bulk oil fuel. Ms Netherton’s evidence was that the applicant failed to comply with the process because he did not report all delays to her, nor the reasons for them. There was evidence of a number of occasions when the applicant did not provide reasons for delays to Ms Netherton.
It was the respondent’s case that the repeated and persistent refusal of the applicant to submit to the supervision of Ms Netherton by way of his failure to report on delays, and the fact of his single diversion home for lunch on one occasion, constituted serious and wilful misconduct and justified the summary termination of the applicant’s employment.
The respondent sought to rely upon the reference in the termination letter of 11 July 1994 (Exhibit Y6) to the taking into account of the applicant’s past performance as establishing that this was one of the substantive reasons for the termination.
This is simply not consistent with the circumstances and events surrounding the termination of the applicant’s employment which I have earlier discussed in this decision. Nor is it consistent with the usual procedure adopted by the respondent in relation to work performance issues arising in respect of its employees. In circumstances other than gross and wilful misconduct the respondent has a published procedure for disciplinary matters. That procedure is contained in the Ampol Drivers Handbook (Exhibit Y1). The respondent advises its drivers at paragraph 1.17 of that manual as follows:
“DISCIPLINE. If it becomes necessary to discipline you,
it will be done in writing and with your full knowledge.
If you are found to be repeatedly inefficient or neglectful
of safe practices, present at an unauthorised location,
guilty of misconduct or refusal of duty, you are liable to
be dismissed.”
The applicant’s evidence was that he was never warned as to his conduct or work performance and that at least one meeting which was held in relation to difficulties in implementing the new system was held at his request. I accept that this was the case and that that meeting provided the respondent with clear opportunity to formally warn the applicant in relation to his attitude or work performance. This the respondent failed to do.
Whilst I accept that there were substantial difficulties in the relationship between the applicant and Ms Netherton, including that the applicant did not cooperate in the reporting requirements of the new system, I am also satisfied that there was a failure on the part of Ms Netherton to understand the inevitability in many instances of delays in the yard, and that this factor contributed significantly to the breakdown in the relationship between them.
Having heard the evidence of Mr Bonnici and Mr Giarrusso as to the nature of the fuel loading process, particularly when loading various types of bulk oil, I am satisfied that there was usually a satisfactory explanation for the delays recorded.
It was apparent from Ms Netherton’s evidence that it was the failure of the applicant to seek her out and provide her with an explanation for the delay rather than the delay itself which was of most concern to her.
At no time until the various meetings occurring after the police raids were the actual delays discussed with the applicant. He was not informed that these delays or unauthorised starting times were being recorded and were likely to result in the termination of his employment.
S170DC and S170DE(2) - Procedural Fairness
Even had I found that the performance issues were matters which constituted the reason for the termination of the applicant’s employment, in my view the process of investigation adopted was unfair and frequently incomplete and inaccurate.
Even if the summary termination of the applicant’s employment on 11 July 1994 was based upon the material contained in Exhibits M9 and M7 (the latter being a handwritten report on the applicant compiled by Ms Netherton), no recourse was had to the source material or invoices or journey records, and no access to this material allowed to the applicant prior to the decision to terminate the applicant’s employment. This approach was unjust because it failed to give the applicant an adequate opportunity to recall or explain the matters alleged against him in relation to delays in starting times occurring, in some cases, months before the termination. The respondent was able to recollect these incidents only by reference to the diary records. The applicant, on the respondent’s own evidence, was expected to respond to these matters without access to the diary records or any other material.
I am however satisfied that the letter of termination is clear on its own terms as to the reasons for the termination. I am satisfied that the true reasons for the termination of the applicant’s employment were those matters specified in paragraphs (a) and (b) of Exhibit Y6 which matters were not true.
Having regard to the above matters I find that the respondent did not have a valid reason for the termination of the applicant’s employment on 11 July 1994. I further find that the process and procedure of interview and enquiry adopted by the respondent, wherein it failed to give the applicant access to the source materials to enable an opportunity to give an explanation regarding the allegations against him, were unfair, and for that reason the termination of the applicant was harsh, unjust and unreasonable.
I now turn to deal with the question of remedy.
S170EE - Remedy
I have considered the submissions of the respondent’s counsel in relation to remedy, and the evidence in its entirety. It was suggested that it would be impracticable to reinstate the applicant in view of the applicant’s having suggested mala-fides on the part of the respondent in the conduct of the termination of his employment. It is not unreasonable for the applicant to feel upset and distressed at the manner in which he has been treated by the respondent. In particular the failure of the respondent to take any remedial steps in relation to the allegations that the applicant possessed unauthorised product after it became apparent that these allegations were untrue, would be likely to cause some upset to the applicant. There is nothing about his reaction or the manner in which the case was put for the applicant which would warrant the court finding that the reinstatement was impracticable.
The applicant expresses a desire to return to the workplace. He has a long history of employment with the respondent and save for the period between February and July 1994 has had no other difficulties in his employment or apparently in his relationship with other employees or supervisors.
I am not satisfied that any difficulties which may arise cannot be overcome with goodwill on the part of the applicant and I have decided to order reinstatement.
I have also decided to order the payment of remuneration lost between the date of the termination of the employment and the effective date of reinstatement. In so doing I recognise that the applicant has been in receipt of his base wage, subject to an agreement entered into between the parties as to possible repayment. Any payment of remuneration lost must necessarily take into account these amounts as having been paid. There was evidence in the proceedings that the applicant was in receipt of regular overtime payments. The applicant’s base rate of pay was $ 544.50 per week. Having regard to his group certificate which established that he earned $55,000.00 in the financial year to 30 June 1994, and to the various clock cards tendered in the proceeding it is apparent that the applicant earned a significant amount above the base award rate. These additional earnings were attributed by the applicant to regular overtime payments.
The parties have provided to the court an agreed statement of the amounts already paid to the applicant during the relevant periods, together with an agreed average weekly rate of payment calculated by reference to the last 21 weeks of the applicant’s employment. The average gross weekly rate of pay of the applicant during that period is $1,058.30. The respondent has continued pursuant to the arrangement between them to pay to the applicant an amount equivalent to his base gross weekly rate of $ 544.50.
Having regard to these agreed amounts, which are largely consistent with the amount of overtime recorded on the applicant’s clock cards, I will order that the respondent pay to the applicant the amount of remuneration lost in the 34 weeks elapsing from the date of the termination to the date of the reinstatement, that being the amount of $1,058.30 per week less the amount of $544.50 per week already paid.
The gross amount payable will be $ 17,469.20.
The orders of the court are as follows:
That the applicant be reinstated by the respondent by reappointing
him to the position in which he was employed immediately before the
termination.
That the effective date of reinstatement be on and from the date of
this order.
That the respondent pay to the applicant the amount of $ 17,469.20
being the amount of remuneration lost by the applicant because of
the termination. Time for payment is fourteen days from the
date of this order.
That the period between the date of the termination of the applicant’s
employment and the date of reinstatement be treated as continuous
employment for all purposes.
Liberty is reserved to either party to apply.
I certify that this and the preceding eighteen (18) pages
are a true copy of the reasons for judgment
of Judicial Registrar Parkinson.
Associate:
Dated: 6 March 1995
Solicitors for the applicant: Holding Redlich
Counsel appearing for the applicant: Ms M Young
Solicitors for the respondent: Blake Dawson Waldron
Counsel appearing for the respondent: Mr M Mueller
Dates of hearing: 2, 8, 9, 12, December 1994, 18, 20 January 1995 and 2 February 1995.
Date of judgment: 6 March 1995
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