Stephen Pitceathly v Diona Pty Limited

[2011] FWA 478

[2011] FWA 478

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Pitceathly
v
Diona Pty Limited
(U2010/11250)

COMMISSIONER RYAN MELBOURNE, 24 JANUARY 2011

Application for unfair dismissal remedy - not redundancy.

[1] Application was made on 4 August by Mr Pitceathly under s 394 of the Fair Work Act 2009 (the Act) for a remedy in relation to his alleged unfair dismissal on 30 July 2010 from his employment by Diona P/L (the Respondent).

[2] A letter of termination was given to Mr Pitceathly on 30 July 2010. Relevantly the letter identified that it was a “Notice of Redundancy” and the reason for termination was described as follows:

“With the implementation of COINS and the impact it has had on your role, it has been agreed by management that an appropriately tertiary trained person will be required to perform these works in line with our operation in NSW and SA. This letter is to inform you that due to these changes a decision has been made to make the existing role redundant.

Given the current decline in available work to Diona in Queensland at this time, we are unable to offer you alternative employment in another suitable role.”

[3] Mr Pitceathly contends that his termination was not a genuine redundancy.

[4] Subsequent to the termination being effected on 30 July 2010 and Mr Pitceathly filing his application in this matter the Respondent has asserted that as a result of investigation it now asserts that the termination is also justified on the basis of deliberate and dishonest conduct by Mr Pitceathly whilst employed in that Mr Pitceathly claimed and was paid for hours that he did not work and further that Mr Pitceathly used his position to order a quantity of degreaser which was intended for his personal use. The Respondent wrote to Mr Pitceathly on 6 October 2010 asserting that Mr Pitceathly had been overpaid on the basis that his claimed hours of work were excessive. The Respondent wrote to Mr Pitceathly on 11 October 201 requesting that he explain by 4.00pm on 13 October 2010 why he ordered the degreaser. On 20 October the Respondent issued a formal Letter of Demand to Mr Pitceathly demanding the repayment of $4482.50, being the cost of the degreaser.

[5] The Respondent contended that not only was the termination a genuine redundancy but that separate from the genuine redundancy the Respondent had a valid reason for the termination of Mr Pitceathly’s employment based upon either or both of the assertions that Mr Pitceathly had claimed payment for hours not worked and/or his conduct in ordering degreaser for his own personal use.

[6] At all times throughout these proceedings Mr Pitceathly represented himself.

[7] The Respondent filed a Notice of Representative Commencing To Act on 27 September 2010 identifying their representative as Mr Ziv Ben-Arie of Doyles Construction Lawyers. However, during the hearing of this matter before Fair Work Australia on 19 November 2010 the Respondent was represented by Mr David O’Connor, General Manager of the Respondent.

[8] Neither Mr Pitceathly nor Mr O’Connor were legally trained or qualified.

Initial Matters

[9] Section 396 of the Act requires Fair Work Australia to decide certain matters before considering the merits of an application for an unfair dismissal remedy.

[10] I have decided three of those matters as follows:

a. The application made under s.394(1) of the Act in the present matter was made within the period required by s.394(2) of the Act.

b. Mr Pitceathly is a person protected from unfair dismissal within the meaning of s.382 in that Mr Pitceathly has completed at least the minimum employment period specified in s.383 and in that Mr Pitceathly employment is covered by a modern award. Whilst neither Mr Pitceathly nor the Respondent made any submissions as to award coverage of Mr Pitceathly’s employment it is clear from the evidence in this matter that Mr Pitceathly was performing work which was covered by either or both of the Clerks - Private Sector Award 2010 [MA000045] or the Storage Services and Wholesale Award 2010 [MA000084].

c. The Respondent is not a small business employer for the purpose of the operation of s.388.

[11] The fourth matter required to be decided is whether the dismissal was a case of genuine redundancy. For reasons set out later in this decision I have decided that the termination of Mr Piceathly’s employment was not a case of a genuine redundancy.

The Witnesses

[12] Notwithstanding the Directions issued by the Tribunal in this matter Mr Pitceathly did not file any witness statements with his outline of submissions.

[13] However at the commencement of these proceedings the Tribunal offered Mr Pitceathly the opportunity of giving evidence on his own behalf. Mr Pitceathly accepted this offer. During cross examination of Mr Pitceathly it became apparent that Mr Pitceathly was of the view that another employee (William (Liam) Campbell) would be able to give evidence which supported Mr Pitceathly’s evidence 1. The Respondent made the offer to the Tribunal to have Mr Liam Campbell brought to the hearing for the purposes of giving evidence in the matter2. On completion of Mr Pitceathly’s evidence I asked Mr Pitceathly if he wanted to call any other employees to give evidence on his behalf. Mr Pitceathly nominated an additional 3 employees3 and the Respondent agreed to make those persons available to give evidence to the Tribunal4.

[14] The Respondent did comply with the Directions issued in this matter and filed 3 witness statements and each of these witnesses gave evidence in the matter.

Mr Pitceathly

[15] Mr Pitceathly gave his evidence in chief in a narrative form describing circumstances surrounding his hours of work, the issue of the degreaser and nature of his job. Mr Pitceathly was subject to cross examination by the Respondent.

[16] I found Mr Pitceathly to be an honest witness and his evidence to be credible and to be preferred on each of the main issues.

Mr Peter Kensington

[17] Mr Kensington was called to give evidence at short notice and without preparation. Mr Kensington was identified by Mr Pitceathly as a person who would be able to corroborate aspects of Mr Pitceathly’s evidence. Mr Kensington presented as a witness who did not want to be giving evidence. His demeanour in the witness box was that he presented as being cagey and evasive in answering questions from Mr Pitceathly.

Mrs Lillian Campbell

[18] Mrs Campbell presented as an honest witness and her demeanour in giving evidence was that of a person genuinely trying to tell the truth as she remembered it.

Mr Jason Field

[19] Mr Field presented as a reluctant witness and his whole demeanour suggested that he wanted to be anywhere other than in the witness box giving evidence. I found his evidence to be unhelpful to either side.

Mr Liam Campbell

[20] Mr Campbell was made available by the Respondent to give evidence in this matter but neither Mr Pitceathly nor the Respondent claimed him as their witness. Rather both Mr Pitceathly and the Respondent approached Mr Campbell on the basis that his evidence may assist in clarifying issues in contention between Mr Pitceathly and the Respondent.

[21] I found Mr Campbell to be a totally unreliable witness.

[22] Mr Campbell appeared to be practised in the art of dissembling.

[23] Mr Campbell adopted what I consider to be a very deliberate tactic of giving evidence in a way which was intended to serve his personal interests above everyone else’s. I draw the conclusion from the manner in which he gave evidence that the tactic used by Mr Campbell was not being used for the first time in this matter but was a tactic used constantly by Mr Campbell in other areas of his life. The tactic comprised two elements. Firstly, Mr Campbell constantly stressed that he was telling the truth about an issue 5. During his evidence I interrupted Mr Campbell in giving an answer to draw to his attention to his use of the word “honest”6. Immediately after this Mr Campbell clearly made a conscious decision to stop using the word “honest” to strengthen his answers because he then corrected himself when he again used the word “honestly”7. Secondly, Mr Campbell made clear admissions of guilt about minor failures on his part) in order to bolster his ‘honesty’ in all other matters8.

[24] Mr Campbell had a very selective memory about most issues. Mr Campbell’s memory was sufficient for him to remember enough to protect his own position but failed him completely on each of the key issues where Mr Pitceathly was seeking evidence to corroborate Mr Pitceathly’s evidence.

[25] Mr Campbell gave evidence in a manner which was intended to deflect any significant wrongdoing away from himself. In doing so Mr Campbell was clearly prepared to give evidence which through his contrived selective memory of events would place all blame on Mr Pitceathly.

[26] Mr Campbell’s entire demeanour in giving evidence, his body language, his tone, his expression all shrieked out that here was a witness not prepared to tell the truth and the whole truth and nothing but truth.

[27] Mr Campbell fits the description given by W. Somerset Maugham in The Summing Up, 1938, “Man has always sacrificed truth to his vanity, comfort and advantage.”

Mr John O’Connor

[28] Mr O’Connor was an honest witness. I accept that Mr O’Connor gave his evidence truthfully but I treat his evidence, both oral and written, with a high degree of caution given that significant parts of it were hearsay.

Mr Ciaran Moohan

[29] Mr Moohan was an honest witness. However his evidence was of extremely limited value.

Mr Lawrence Horton

[30] Mr Horton’s written witness evidence appeared to have been deliberately constructed to give support to his employer. However under cross examination he made concessions which undermined his written evidence. I place no reliance on Mr Horton’s evidence.

The Respondents Final Submission

[31] On 15 December 2010 the Respondent filed with Fair Work Australia a reply to the final submissions of Mr Pitceathly. The document was signed by Mr David O’Connor, General Manager for the Respondent. The cover sheet for the document identified that the Respondent’s representative was Doyles Construction Lawyers. Whilst Mr O’Connor signed the document the author of the document is unknown.

[32] Paragraph 4 of the document is in the following terms:

“4. The Commissioner when having regard to the evidence adduced and the submissions made by the Applicant is bound by the rules of evidence as they apply under the Evidence Act 1995 (Cth) (“the Act”).”

[33] The remainder of the document makes submissions, inter alia, as to the inadmissibility of evidence of Mr Pitceathly by reason of the operation of different provisions of the Evidence Act 1995.

[34] The Respondent in making these final submissions has done so in complete ignorance of s.591 of the Fair Work Act which provides as follows:

591 FWA is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not FWA holds a hearing in relation to the matter).

[35] The Respondent in making these final submissions also appears to have ignored s.577 of the Act:

577 FWA must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

[36] Most of the concepts underlying the rules of evidence are relevant in relation to the conduct of matters before FWA simply because those underlying concepts are consistent with ensuring procedural fairness is accorded to the parties to a matter and in meeting the requirements of s. 577(a) and (c).

Was the Termination a Case of Genuine Redundancy

[37] Genuine redundancy has the meaning given to it by s.389 of the Act.

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[38] The structure of s.389(1) makes clear that there are two separate criteria that have to be satisfied in order for there to be a genuine redundancy.

[39] The first criteria is set out in paragraph 389(1)(a). This criteria has two elements: (1) the person’s employer no longer required the person’s job to be performed by anyone, and (2) that this situation was the consequence of changes in the operational requirements of the employer’s enterprise.

[40] The Respondent contends that it is matter for the employer’s judgement as to whether a job is redundant or not and cited Quality Bakers v Goulding 9.

[41] Whilst this is broadly accurate, it is the role of the Tribunal to test objectively any of the assertions of the employer. As the authorities make clear the focus must be on the job and not the person performing the job  10.

[42] The second element of this criteria focuses on the operational requirements of the employer’s enterprise. There has been much discussion as to what constitutes the notion of operational requirements in the context of that term being used in the Work Choices legislation as a limitation on employees’ capacity to pursue remedies for alleged unfair dismissal. From these authorities it is clear that an employer has an onus to establish that there has been changes in the operational requirements of the employer’s enterprise which caused the job to become redundant 11.

[43] In this matter there is competing evidence as to whether Mr Pitceathly’s job was redundant.

[44] Mr Pitceathly gave evidence in relation to his job and the issue as to whether that job was redundant. In his narrative evidence Mr Pitceathly said:

“PN44 ........the job that I carried out at Diona - the job description that I had was actually on the Diona Intranet. The copy that they've submitted with my very original one that I joined up as a truck driver - that was replaced at some point when they appointed a quality manager and they done up a whole system and there was a full job description. I vaguely remember the description code being PO, maybe SP2, but pretty much it stated that it was procurement officer. That was in some point in 2009, mid-2009. .......the description on it is pretty much - pretty much identical to the job that I did do as - the only probably difference they've added is that they now say that it has to be a tertiary qualified person which I point out again, as in my submissions, I'd done the job for two years prior. They talk about COINS. COINS is an electronic version of what I was doing already.”

[45] Mr Pitceathly was cross examined by Ms Romeo for the Respondent on the nature of his job. The following extract of transcript is relevant:

“PN146 Again regarding your redundancy, you're saying that your job is still in place. I put it to you that the position you were in, the logistics officer, no longer exists. The position that has been filled is procurement officer in line with the other states so your position was actually made redundant that you sat in. At no time - and you have to, I guess, you know, say yes or no - we gave you a contract or a letter of offer to say that you had been put in the procurement position on any salary or anything else. Would you agree with that? Did you ever receive anything from Diona saying that you have moved to that new position?---No.

PN147 No, so it was basically hearsay between what was in place but was never actually offered to you by the company, by head office?---Well, I'd like to think I sat in a position for two years that was common knowledge. I'd say it's pretty concrete right there. It wasn't like I blew through and I'd been there for, like, a week or two and all of a sudden - - -

PN148 But would you agree that - - -?--- - - - all of a sudden the position no longer exists. No, that's not the case and to your statement about changing from logistics officer or whatever it is you called it to procurement officer, well, as far as I'm concerned that's just a name change. There's no difference in the job. The job still carries out the utilisation of COINS; the ordering of materials; direction of crews. I mean, all the ducks are lining up to me.

PN153 I'm making a point that during your work there we never - the company Diona never actually employed you as procurement officer. Nothing was ever given to you in any way, shape or form to say that is now your position?---Well, that's like saying that I was never logistics manager either because I never received anything to state that that was my position.

PN154 You received from - what I saw through my payroll group was you did receive a pay rise when you went to the logistics officer position?---A pay rise only, but there was no formal contract or anything written to say that that was my position. It was all hearsay like the rest of everything that seemed to happen in Diona.”

[46] Mr Campbell was examined by Mr O’Connor on the nature of the changes in the job previously performed by Mr Pitceathly.

“PN595 Liam, in the roll with the COINS system obviously there was a change from when Steve started his role in the more logistic side of things as the storeman downstairs and to what the role became when the COINS system was introduced. Would you acknowledge quite a different - quite a difference in the way that operations worked previous to what they are now?---Yeah, big change.

PN596 Would you acknowledge or would you agree that the skill sets required to do it competently are different?---I believe that the engineering side has a big advantage and I think because of your own involvement down in Sydney, youse guys found that the engineering side was a much better go-to place for people to organise and work with COINS and I think whenever - youse guys gave a lot of thought to it and that's what you wanted in there, an engineer.

PN597 Did you agree or disagree with that though?---I didn't disagree with it.

PN598 But while Steve was away after his unfortunate incident we had to use Joe and Joe was the yardman previous?---Correct, yeah.

PN599 We thought at the time he was probably the best, if not the only fit that we had?---Yeah.

PN600 Joe had no previous COINS experience?---Correct.

PN601 But Joe showed - once Joe was in the role there was a noted improvement in the operation of that unit of the business?---Yeah.

PN602 Would you agree or disagree with that?---I mean, there definitely seemed to be - from what I could see as far as the paperwork, et cetera, et cetera, that was left on desks, yes, Joe was - seemed to be more on the ball. In talking to clients - because remember when it comes to COINS, COINS really is this accounting package and accounts so they wanted to see the end product. I don't - I don't necessarily see that end product and they said it was remarkably noticeable, the difference.

PN603 But obviously Joe we didn't leave in that role because we did make the decision that we wanted a tertiary qualified person like we had in New South Wales and Victoria and Adelaide using the system. So it wasn't a change. It wasn't like we put Joe in that role and gotten rid of Steve. We acknowledged that the role was different and hence put a differently skill-setted person in that role. Would you agree or disagree?---That's what you done, yes. The person in that role now is the exact same type of person as we have in Sydney, Adelaide and in fact Melbourne.”

[47] I also have had regard to the evidence of Mr John Paul O’Connor but this evidence is not inconsistent with the evidence of Mr Pitceathly who acknowledged that his role had changed as a result of the introduction of COINS.

[48] I note in passing that in the Respondents Final Submissions filed with Fair Work Australia on 8 December 2010 at paragraph 4 the Respondent asserts that the Mr Pitceathly made an admission at PN106 that the role he had previously occupied was a different role from that which he occupied at the time of his termination.

[49] What the Respondent has done is attribute to Mr Pitceathly words which were uttered by Mr David O’Connor in cross examination of Mr Pitceathly. Having attributed to Mr Pitceathly words never uttered by him the Respondent then goes on at paragraph 5 of the Respondent’s Final Submissions to assert that subsequent evidence of Mr Pitceathly is contradictory to Mr Pitceathly’s admission at PN106. The Respondent has engaged in a very crude attempt to create an argument of contradictory evidence by Mr Pitceathly where no such argument exists. The crudeness of this approach is reinforced by the fact that Mr David O’Connor who spoke the words at PN106 and which were wrongly attributed to Mr Pitceathly signed the Respondent’s Final Submissions.

[50] I also note that consistent with my earlier findings as to the credibility of Mr Campbell that the above extract from Mr Campbell’s evidence shows that Mr Campbell gave answers which suited his employer’s position. Two examples of this are at PN597 and PN603 where Mr Campbell simply avoids giving a direct answer to the question asked. At PN597 Mr Campbell answers with a double negative rather than with a positive answer. He avoided answering the specific question whilst giving the appearance of having answered the question. At PN603 Mr Campbell restates the proposition put to him but again avoids answering the question specifically asked of him.

[51] Several findings can be made on the basis of the evidence given.

[52] Firstly, the job performed by Mr Pitceathly has altered. When Mr Pitceathly was promoted from Truck Driver to Logistics Supervisor the system of work was paper based and not computer based. The COINS system (a computer based logistics and procurement system) was introduced while Mr Pitceathly was employed as a logistics manager and was incorporated into Mr Pitceathly’s job.

[53] Secondly, the job of undertaking the procurement/logistics job including use of COINS did not require an engineering qualification, as Joe, the yardman, was able to fill in and do the job (and do it better than Mr Pitceathly) while Mr Pitceathly was absent due to an injury.

[54] Thirdly, the Respondent made a conscious decision to replace Mr Pitceathly with an engineer on the basis that the Respondent had engineers perform the procurement job in other states and because the Respondent was of the view that engineers provided a better skill set for the performance of the job.

[55] Fourthly, at the time of the termination of Mr Pitceathly the job in which Mr Pitceathly was employed was the same job as the Respondent required to be done immediately after the termination of Mr Pitceathly.

[56] Fifthly, the title of the job performed by Mr Pitceathly was that of Logistics Supervisor and the title of the job to be performed after Mr Pitceathly’s termination was that of Procurement Officer.

[57] I conclude that there was not a genuine redundancy within the meaning of s.389(1)(a) of the Act.

[58] The second criteria within the meaning of a genuine redundancy is that the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[59] At least 2 modern awards applied to the employment of Mr Pitceathly and these are the same 2 modern awards which cover the employment of Pitceathly. Each of these modern awards contains a provision titled ‘Consultation regarding major workplace change’ (cl 8 in the Clerks - Private Sector Award 2010 and cl 9 in the Storage Services and Wholesale Award 2010).

“8. Consultation regarding major workplace change

8.1 Employer to notify

(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(b) Significant effects include termination of employment, major changes in composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

8.2 Employer to discuss change

(a) The employer must discuss with the employees affected and their representative, if any, the introduction of the changes referred to in clause 0, effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.

(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[60] The consultation provision of the modern award is an obligation in a modern award that the employer consult with affected employees who may be made redundant due to the introduction of major change which has significant effects on employees.

[61] In the present matter the evidence makes clear that the introduction of COINS was a major change in program, organisation, structure or technology in the Queensland operations of the Respondent and that this was likely to have significant effects on employees.

[62] As the evidence from Mr John O’Connor makes clear the significant effect of the major change was that the Respondent determined that a tertiary qualified employee was required to operate COINS and that with the full operation of COINS additional changes would be needed to the structure and allocation of work in the Queensland office. The significant effect also included declaring Mr Pitceathly’s job redundant and terminating his employment.

[63] The provisions of the award clause on ‘Consultation regarding major workplace change’ meet the requirements of the term “any obligation in a modern award...that applied to the employment to consult about the redundancy” appearing in s.389(1)(b).

[64] The evidence of both Mr Pitceathly and Mr John O’Connor disclose that no consultation took place between the Respondent and Mr Pitceathly before the Respondent terminated Mr Pitceathly’s employment on the basis of redundancy. Further the Respondent has never contended during the proceedings (including in its Submissions filed on 3 November 2010 and in its Final Submissions filed on 8 December 2010) that it engaged in any consultation with Mr Pitceathly in relation to the significant effects, including termination, which were caused by the introduction of the major change to work in the Queensland operation with the introduction of COINS.

[65] The obligation imposed on the Respondent by the operation of the award provision in relation to ‘Consultation regarding major workplace change’ was not complied with.

[66] In order to be a genuine redundancy within the meaning of s.389 both of the mandatory elements of s.389 must be satisfied.

[67] In the present matter I am of the view that neither element has been satisfied.

[68] However, even if I am wrong in relation to my finding that the requirements of s.389(1)(a) of the Act have not been met, nevertheless there cannot be a genuine redundancy in this matter due to the failure of the Respondent to comply with its modern award obligation to consult about the redundancy.

Was the Dismissal Unfair

[69] Of the fourth criteria within s.385 of the Act, paragraph (c) is not relevant and I have determined that paragraph (d) does not apply. I am satisfied that Mr Pitceathly was dismissed within the meaning of s.386. Therefore this leads to a consideration as to whether the dismissal was harsh, unjust or unreasonable within the meaning of s.387 of the Act.

Valid Reason - s.387(a)

[70] In considering whether the termination of Mr Pitceathly was an unfair dismissal I accept the correctness of the Respondent’s submission that it may rely upon “facts that come to light after the dismissal as long as those facts concern circumstances that existed at the time when the decision to terminate the employment was made” 12. More importantly where facts come to light after the dismissal has occurred but which existed at the time of the dismissal and are relevant to the dismissal the Tribunal can and must consider those facts in determining whether the dismissal is or is not an unfair dismissal.

[71] The Respondent makes two serious allegations against Mr Pitceathly and asserts that these allegations were made after Mr Pitceathly was terminated because the facts which led to the allegations being made were only found after Mr Pitceathly was terminated. The two allegations are that Mr Pitceathly had claimed payment for hours not worked and had used his position to order degreaser for his own personal use.

The Evidence

The Hours of work and the salary of Mr Pitceathly

[72] Mr Pitceathly’s evidence was that since his commencement he worked long hours including occasions in excess of 60 hours a week and that he was paid for the hours worked. Further that once the OHS manager from Sydney raised concerns over Mr Pitceathly’s long hours an agreement was reached between Mr Pitceathly and Mr Campbell that Mr Pitceathly would be paid for a 60 hour week regardless of the actual hours worked. This agreement to pay 60 hours was in recognition of the time Mr Pitceathly was on call 13 out of normal hours as well as recognising work that Mr Pitceathly did at home or out of ordinary hours.

[73] Mr Campbell denied that any agreement was made. Mr Campbell denied that Mr Pitceathly was on call when not at work 14. Mr Campbell gave evidence that he did not check the hours worked by employees as he should have.

[74] Mrs Campbell confirmed that such an agreement had been made with her husband, Mr Liam Campbell 15. Mrs Campbell also confirmed that Mr Pitceathly was on call when not at work16. Mrs Campbell also confirmed that the issue of Mr Piceathly’s claimed hours for Saturday had been raised with Mr Campbell by Mr Kensington in 200917.

[75] Mr Kensington confirmed that he had raised concerns with Mr Campbell about a weekly time sheet in which Mr Pitceathly had claimed work on a Saturday but had not been at the employer’s premises. Mr Kensington’s evidence was that Mr Campbell said “Leave it with me” 18.

[76] Mr Field also confirmed that Mr Pitceathly was considered to be on call when not at work 19.

[77] Mr John O’Connor gave evidence that:

“26. It was also noticed by personnel in our Queensland office that Steven was not working the hours recorded and often arrived later and left earlier than recorded.

27. This information was brought to the attention of his supervisor Liam Campbell numerous times, however it was never dealt with effectively.”  20

[78] The conclusion to be drawn from the evidence, given my earlier findings as to the reliability and honesty of the various witnesses, is that Mr Pitceathly claimed 60 hours a week as work performed as a result of a direct agreement between himself and Mr Campbell. The agreement was in recognition of the actual long hours worked by Mr Pitceathly at work and the work performed by Mr Pitceathly out of hours and the fact that Mr Pitceathly was on call when not at work.

[79] No evidence was lead by the Respondent in relation to the authority of Mr Campbell to make such an agreement. The evidence of Mr Campbell in answer to a question from the Tribunal was that Mr Campbell had direct authority over Mr Pitceathly 21. Mr Campbell had given evidence that whilst he was not responsible for payroll he was responsible for checking the hours worked by employees under his control22.

[80] A suggestion was made by Ms Romeo 23 when examining Mr Pitceathly that Mr Campbell did not have the authority to make an agreement with Mr Pitceathly about his hours of work24. However no evidence was led by the Respondent as to the delegated authority of Mr Campbell or as to Mr Pitceathly’s knowledge of the delegated authority of Mr Campbell.

[81] On the evidence before me it is clear that Mr Campbell acted as if he had the authority to make an agreement with Mr Pitceathly as to his hours of work. The evidence of Mrs Campbell supports a conclusion that Mr Campbell acted as if he had the authority to make an agreement with Mr Pitceathly.

[82] The evidence of Mr Pitceathly is clearly that he believed Mr Campbell had the authority to make the agreement as to Mr Pitceathly’s hours of work. This belief on the part of Mr Pitceathly that Mr Campbell had the authority to make an agreement about the hours of work of Mr Pitceathly was in my view reasonable in all the circumstances, especially given Mr Campbell’s status both as Mr Pitceathly’s manager and as the State Operations Manager for the Respondent.

[83] In the absence of evidence that Mr Pitceathly knew or should have known that Mr Campbell did not have the authority to make the agreement as to payment for 60 hours then the Respondent cannot now rely upon an assertion that Mr Campbell lacked actual authority when at all times in dealing with Mr Pitceathly it appeared that Mr Campbell had apparent authority to make the agreement.

The ordering and usage of Degreaser

[84] At PN34 and PN37 of transcript Mr Pitceathly describes events surrounding the ordering of degreaser from Graystar Chemicals P/L in September 2008 and the subsequent issues surrounding the amount of degreaser delivered by Graystar Chemicals P/L and their demands for payment.

[85] At PN37 and PN38 Mr Pitceathly describes events which occurred in early July 2010 when he visited his workplace whilst he was on leave due to his injury. On this occasion Mr Pitceathly became aware that a further delivery of degreaser had been made by Graystar Chemicals P/L. Whilst the delivery was marked “Attention Steve Pitceathly”, Mr Pitceathly denied placing the order.

[86] Mr Pitceathly when giving evidence as to this matter sought to rely upon the involvement of Mr Campbell in relation to both instances concerning the ordering, delivery and payment for the degreaser.

[87] Mr John O’Connor gave evidence in relation to his investigations concerning the ordering of the degreaser. In his written evidence Mr O’Connor stated at paragraph 41 of his statement that:

“Upon his (Mr Pitceathly) return to work he was presented with the invoice for these items with his name recorded on the order and he flatly denied knowledge of ever ordering from this company.”

[88] In his oral evidence Mr O’Connor painted a different picture. In answer to some questions from the Tribunal Mr O’Connor said as follows:

“PN770 Are you saying that Mr Pitceathly denied ever ordering - - -?---Yes.

PN771- - - the product or did he deny ordering the 100 litres which was delivered more recently?

---When the issue came up, he was questioned by Joe McCormack who was in the role at the time and when the issue popped up while Steve was away. When he questioned him about it, Steve said that he had no knowledge of that company or ever having an order placed.

PN772 So his denial was in relation to ever ordering?---Yes. He had also contacted me regarding it.

PN773 Were you present with that conversation?---I was not present with that conversation and that's come into my investigation.

PN774 Okay. So this is hearsay from you?---Yes.

PN775 This is what - - -?---This is what - in my conversation with Joe McCormack this is what has come out of it. Taking into account my own experience with it, I was asked about the whereabouts of this product as if - well, I was asked if I had ordered it by Steve. That's how I remembered the case specifically.

PN776 Yes, but that request or that comment or conversation from Mr Pitceathly occurred in relation to the second set of drums?---In my experience it was just in general. I believe it was the drums that were actually sitting there at the time.

PN777 The drums sitting there?---Yes.

PN778 So that's the drums sitting there when? What's the time frame?---That was upon Steve arriving back to work. While he was away the drums - - -

PN779 Which constitutes the second set of drums?---That's the four drums, yes.”

[89] Mr O’Connor also gave evidence that his investigation disclosed that the payment for the first order for the degreaser had been split into two separate payments. Although Mr O’Connor could not establish why this occurred 25.

[90] Mr O’Connor also gave evidence that Mr Pitceathly, on his return to work after a period off work due to an injury, had asked Mr O’Connor if he had ordered the second delivery of degreaser which was made while Mr Pitceathly was off work 26.

[91] I prefer the evidence of Mr Pitceathly in relation to the circumstances surrounding the first order of the degreaser and the ensuing issues concerning oversupply and payment. The evidence of Mr O’Connor supports Mr Pitceathly’s evidence on the issue of the splitting of payment for the first set of deliveries of the degreaser. I accept that the reasons for the splitting of that payment are those given by Mr Pitceathly in his evidence. The evidence of Mr O’Connor supports the evidence of Mr Pitceathly that he did not order the second delivery of degreaser. The fact that Mr Pitceathly expressly approached Mr O’Connor asking him if knew about the second order is consistent with the evidence given by Mr Pitceathly that he did not order the second delivery of degreaser and that he made inquiries as to who did place the order.

[92] The evidence of Mr Pitceathly does indicate that whilst he intended to order only 1 drum of the degreaser that he effectively committed the Respondent to accepting delivery of 4 drums and paying for 4 drums. The “big battle with Graystar that went on for a very lengthy period, probably a year approximately” that Mr Pitceathly identified in his evidence 27 would have been avoided had greater certainty been achieved when Mr Pitceathly placed the order for 1 drum of degreaser.

[93] The evidence simply does not support the contention of the Respondent that Mr Pitceathly deliberately and dishonestly ordered the degreaser with the intention of acquiring it for his own personal use 28.

Poor Performance

[94] The Respondent asserted that the termination of Mr Pitceathly was also justified by his poor performance.

[95] The evidence from Mr John O’Connor and Mr Liam Campbell was weak on this issue. Mr Pitceathly gave evidence that he never received any adverse reports on his performance and that he received Christmas bonuses from the Respondent.

[96] I am not satisfied that there was poor performance by Mr Pitceathly in the performance of his job.

[97] Having considered each of the 3 grounds relied upon by the Respondent I determine that there was not a valid reason for the dismissal of Mr Pitceathly.

S.387(b), (c), (d) and (e)

[98] I have taken into account that the Respondent gave notice of termination of employment to Mr Pitceathly on the basis of redundancy only. I note that the Respondent did not notify Mr Pitceathly of the reason for termination (redundancy) prior to the termination, nor give him an opportunity to respond to the reason for termination. The lack of any communication by the Respondent with Mr Pitceathly as to any pending termination based upon redundancy is a significant matter and weighs in favour of a finding that the termination was harsh, unjust or unreasonable. I also note that whilst the Respondent has relied upon three issues of conduct to justify the termination after the event, none of these three matters (claiming payment for hours not worked, ordering degreaser for personal use and poor performance) were put to Mr Pitceathly prior to the termination. However the lack of notice or consultation over the two serious issues is understandable and should not lead to any adverse impact on the Respondent.

[99] To the extent that the Respondent relies upon poor performance as a ground justifying the termination then there should have been prior notification to Mr Pitceathly of this and he should have been given an opportunity to respond. The absence of this weighs in favour of the finding that the termination was harsh unjust or unreasonable.se issue

S.387(f) and (g)

[100] I have taken into account the fact that the Respondent is a national business with operations in 3 States and that the Respondent is very much a family business with a very hands on approach by the General Manager. I also note that the Respondent has access to and has utilised the services of legal advisers in this matter.

Any Other Matter - s.387(h)

[101] In the context of this matter I have taken into account the role of Mr Liam Campbell.

Had Mr Campbell been open and honest with the Respondent then no allegation would have been made against Mr Pitceathly that he had claimed payment for hours not worked. Had Mr Campbell been open and honest with the Respondent then the allegation that Mr Pitceathly had ordered the degreaser for his own personal use would not have been made.

[102] By not being open and honest with the Respondent, Mr Campbell ensured that the Respondent’s investigations into Mr Pitceathly would lead to conclusions which were doomed to be tainted.

[103] Having considered each of the criteria of s.387 of the Act I am satisfied that the dismissal of Mr Pitceathly was harsh, unjust or unreasonable.

Remedy

Reinstatement

[104] Reinstatement is the primary remedy in cases where an employee has been unfairly dismissed.

[105] In all of the circumstances of the present matter I am satisfied that reinstatement is inappropriate. Throughout these proceedings the Respondent has maintained that Mr Pitceathly has acted dishonestly in both claiming payment for hours not worked and for ordering and having the Respondent pay for degreaser which was “intended and actually used for the Applicant’s personal use 29. The loss of trust by the Respondent in the Mr Pitceathly is in my considered view to be directly attributable to the conduct of Mr Campbell in refusing to admit to his direct involvement in making an agreement with Mr Pitceathly as to the hours to be claimed by Mr Pitceathly and paid to him, and also as to his role in dealing with the oversupply of degreaser and the subsequent payment issues when first ordered by Mr Pitceathly.

I am satisfied that it is singularly inappropriate to reinstate Mr Pitceathly into employment with the Respondent in circumstances where Mr Campbell continues to be the manager of Mr Pitceathly.

Compensation

[106] I am not satisfied that I have enough information before me to properly decide the issue of compensation having regard to the matters I am required to consider under s.392 and having regard to s.393.

[107] I will convene a conference of the parties to enable further programming in relation to the issue of compensation.

Orders

[108] Orders giving effect to those matters decided will be issued separately to this decision.

COMMISSIONER

Appearances:

S. Pitceathly on his own behalf

D. O’Connor for the Respondent

Hearing details:

2010

Brisbane

December 19

Final written submissions:

December 8, 2010

 1   Transcript at PN82

 2   Transcript at PN87

 3   Transcript at PN189

 4   Transcript at PN210

 5   Transcript at PN467, 473, 477, 479487 and 488.

 6   Transcript at PN489

 7   Transcript at PN522

 8   Transcript at PN473, PN480 and PN605

 9 (1995) 60 IR 327 at 333

 10   R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6, at 8, 18 May 1977, Bray CJ; approved in Amcor Limited v Construction, Forestry, Mining and Energy Union & ors, (2005) 222 CLR 241 at pn 43 and 54, 9 March 2005, McHugh, Gummow, Kirby, Hayne, Callinan, Haydon JJ per Gummow, Hayne, Heydon JJ, see also Gleeson CJ and McHugh J at pn 14 and Kirby J at pn 65). (R v The Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Limited and others, (1977) 16 SASR 6, at pn 26, 18 May 1977, Bray CJ, Bright, Mitchell JJ). (Construction, Forestry, Mining and Energy Union v Amcor Limited, (2002) 113 IR 112, at pn 9, 13 May 2002, Finkelstein J).)

 11   Tasmania Development & Resources v Martin, (2000) 97 IR 66, at pn 26, 5 April 2000, Lee, Cooper, Kiefel JJ). See also Kerr and Another Jaroma Pty Ltd t/as Treasury Motor Lodge,(1996) 70 IR 469 at 473, 7 October 1996, Marshall J.)

 12   Employer Submission dated 3 November 2010 at para 4.3

 13   Transcript at PN38, PN66, PN81, PN127, PN143 and PN157

 14   Transcript at PN472, PN481 and PN482

 15   Transcript at PN317 and PN319

 16   Transcript at PN318

 17   Transcript PN324-PN329

 18   Transcript at PN249 to PN268

 19   Transcript at PN396

 20   Exhibit R1 at paras 26 and 27

 21   Transcript at PN571

 22   Transcript at PN582

 23   Transcript at PN130

 24   Transcript at PN130

 25   Transcript at PN759 and PN760

 26   Transcript at PN753

 27   Transcript at PN37

 28   Respondents Submissions filed on 3 November 2010 at para 4.4

 29   Respondent’s Submissions filed on 3 November 2010 at para 4.4

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