T11740
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Dean Thomas Hayes and The Carpet Company (Tas) Pty Ltd
Industrial dispute - termination of employment - alleged breach of award or registered agreement - application dismissed REASONS FOR DECISION [1] On 4 October 2004, Dean Thomas Hayes (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with The Carpet Company (Tas) Pty Ltd (the respondent) arising out of his alleged unfair termination of employment; and, an alleged breach of award or registered agreement. [2] The applicant was not quite sure of his starting date with the respondent, nor on the date of his elevation to Director. From evidence asserted through the proceedings it appears the applicant was employed from July 1999 on a full time basis as a salesperson. However, the respondent presented a copy of a contract of employment dated July 2000.1 He had been employed as a casual carpet layer for a short time before then. [3] In about 2000, the exact date was not presented, Mr Hayes accepted an invitation to become a Director of The Carpet Company (Tas) Pty Ltd with a ten percent share in the business, having contributed $20,000 to the company's capital. [4] At the time of his termination the applicant was earning a salary package valued in the region of $100,000. [5] In January 2004, it is alleged the applicant was given a verbal warning regarding a number of aspects of his performance. The applicant was not aware he had been given a warning. In August 2004 he was asked to relinquish his shareholding in The Carpet Company and resign as a Director; and he did this on the 2 September 2004. [6] On 17 August 2004, the applicant was again, allegedly, given a warning for accessing pornography on his work computer. Again, he claims not to have been aware of the warning. [7] On 13 September 2004, the respondent allegedly discovered irregularities with the business account cheque butts. The applicant admitted to the respondent he had had personal work done and billed the company. The applicant claimed the respondent was aware of the practice and that it was common knowledge in the business. The respondent terminated the applicant's employment on 15 September 2004, the day he returned from leave. EVIDENCE [8] Evidence was taken from the following witnesses:
BACKGROUND [9] This application hinges on the argument that the process the applicant adopted for allegedly recouping overtime payments, by buying items to the monetary value of such overtime, and having them paid for by the respondent, was a known, condoned standard practice. [10] The respondent presented a number of assertions with respect to the applicant. The aim, I believe, was to paint a less than favourable image of the applicant. However, these assertions have not been offered as reasons for the applicant's termination. I will address them for the record. [11] It was asserted by the respondent that he had given the applicant two written warnings. One warning was in January, the other in August, both 2004. Although logged on a recording system, I believe the warnings, if they were such, were by way of conversation and could not have conditioned the applicant to the potential loss of his employment. The applicant claimed he was unaware of the existence of written warnings. However, Mr Daly for the respondent, made it clear he was not relying on cumulative performance issues as a basis for dismissal. [12] The admitted issue of the applicant accessing pornography that Ms Massaro was inadvertently confronted with in the execution of her tasks was unsavoury, but has not been a material factor in assessing the application. [13] The applicant's time keeping was raised as a performance issue. There is no evidence the respondent made any attempt to alter the applicant's pattern of arriving or leaving work during his tenure. There is no evidence of any counselling. I put no weight on these assertions. [14] To the main argument. The applicant admitted that over a period of months he engaged in the practice of redeeming the monetary value of alleged overtime hours worked by having the respondent bear the cost of both personal purchases and services. He claimed the respondent was not only aware of the activity, but openly encouraged it. Ms Massaros, in her evidence, agreed with the applicant that she kept a running tally of his alleged overtime from which he would draw down as he purchased various items or services. [15] The applicant asserted the practice was common and widespread. He referred to a Mr Harold James as being a recipient of the same remuneration practice. He also asserted the practice was openly spoken about. He referred to an alleged discussion on the matter between himself and the respondent in front of a Mr Paul Slype. Mr Slype was described, during evidence, as a foreman for the installers. There was no other evidence tendered to support this. [16] On 13 September 2004, the respondent discovered two cheque butts showing payments to Autocraft, an automotive repair company. On investigation it was revealed and admitted by the applicant, that one of the payments to Autocraft was on his behalf. The payment had been for work on his private vehicle. The Autocraft invoice had been falsified to reflect work on a company vehicle. He asserted the falsification of the invoice was as a result of discussions with Ms Massaros. [17] The respondent vehemently denied any knowledge of the overtime redemption practice. By his own evidence, and confirmed by both the applicant and Ms Massaros, the respondent's reaction in discovering the Autocraft payments was somewhat animated. It is admitted the respondent became very angry. [18] Both Ms Massaros and the respondent gave evidence to the fact that Ms Massaros, at the time, bore the brunt of the respondent's angry reaction to discovering the cheque butts. The respondent telephoned Autocraft and demanded an explanation, which confirmed the applicant's involvement. The applicant did not challenge this evidence. [19] Ms Massaros, in her evidence, denied the `overtime redemption' practice was common knowledge or widely practiced. Indeed, she asserted the overtime practice was limited to the applicant. Ms Massaros conceded that by agreement Mr Slype had purchased goods `on a couple of occasions' in consideration of legitimate invoices he had submitted. This was with the full knowledge of the respondent. She refuted the applicant's assertion regarding Mr James' participation in the practice. Ms Massaros confirmed that Fringe Benefit Tax (FBT) was paid on these purchases as a matter of course. She confirmed this by referring to Mr James as someone whose hours had to be kept down below a threshold because he was a pensioner. She also denied discussion falsifying the Autocraft invoices with the applicant. [20] In both the respondent's evidence and that of the applicant, both comment on the respondent's obvious surprise at the applicant actually doing overtime. The specific incident was a particular job in Collins Street, Hobart. Other than the applicant's running tally, there is no other evidence he actually worked overtime. [21] In the applicant's contract of employment there was a facility for him to be paid overtime should it be required. The applicant attempted to show there was a financial gain for the business in paying for his overtime by redemption of goods or services. Under cross-examination he failed to prove his assertion. [22] Indeed, in Ms Massaros' evidence it was made quite clear the respondent made a point of paying FBT on benefits that were of a personal nature. She cited an example of the carpeting in her own home, installed by the respondent, as a bonus where the company paid the FBT on the transaction. [23] The applicant initiated the overtime redemption practice earlier in 2004. Ms Massaros asserts the applicant confirmed to her that the respondent was aware of the practice. The applicant did not refute the evidence. Ms Massaros also admitted she felt it was not her place to raise an issue about one Director with the other Director, albeit she had some reservations regarding the applicant's activities. FINDINGS [24] I agree with the applicant that the dismissal letter received from the respondent was a grab bag of justifications for his termination. However, the respondent has only relied on the applicant's practice of redeeming alleged overtime as the basis of his argument. [25] I found the evidence given by the applicant to be somewhat flighty. He was very liberal with unsubstantiated assertions that, in another jurisdiction could have serious consequences for the respondent. The applicant was obviously not aware of his own responsibility as a company director. Both the respondent and Ms Massaros, soundly refuted assertions made by the applicant with respect to the overtime redemption practices. I also found the respondent to be less than ideal as a witness. However, in the main, I found his evidence acceptable. Ms Massaros portrayed herself as very credible. [26] The applicant did not demonstrate the practice of redeeming overtime payments by charging expenditure to the respondent as an accepted practice. The respondent's angry response to the applicant, Autocraft personnel and Ms Massaros suggest he was not aware of the practice. The applicant did not demonstrate the overtime remuneration practice was widespread. The examples given by him were refuted and the rebuttal went unchallenged. [27] Accordingly, the application is dismissed and I so Order.
James P McAlpine Appearances: Date and place of hearing: |