T7302
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Perry Dean Whelan and National Mine Management Pty Ltd
Industrial dispute - termination of employment - arbitrated - order issued REASONS FOR DECISION This was an application for a dispute hearing made under Section 29(1A) of the Industrial Relations Act 1984 (the Act) by Perry Dean Whelan, an underground mine worker of Heybridge. Mr Whelan was in dispute with his former employer, National Mine Management Pty Ltd (the Company) over the termination of his employment. Mr Whelan was dismissed for theft which he denied; he claimed wrongful dismissal and sought reinstatement. Put simply, the Company was a contractor supplying mine labour for mines owned by other companies. At the hearing Mr Whelan was represented by Mr P Griffiths, a legal practitioner and the Company was represented by Mr I Masson of the Australian Mines and Metals Association (Incorporated) (AMMA). Mr Whelan claimed that he had been dismissed because the Company suspected he had been stealing and there had been no other basis or reason given to him other than that. Mr Whelan's employment was terminated on 9 October 1997. He obtained other employment and at the time of the hearing on 26 November 1997, had been in his new employment for five weeks. When employed by the Company Mr Whelan had been paid $42 000 per annum; his new employment was at the salary of $25 000 per annum. A witness for Mr Whelan, Michael John Fyfe a diesel fitter employed by the Company, gave evidence that the police had spoken to him about allegations that Mr Whelan had stolen explosives from the Henty Gold Mine site. Mr Fyfe said he knew Mr Whelan and had lived with him for a short time, but, he did not know anything about the alleged theft. He said he did not know anything about explosives allegedly stored at the house he shared with Mr Whelan. He denied that he had been invited by Mr Whelan to view the alleged explosives. Mr Fyfe also said he had spoken to Mr Ron Ellis, the Company's Site Manager at the Henty Gold Mine and the Mount Lyell Mine, after his interview with the police and he told Mr Ellis he had nothing to tell him and he had told the police nothing. He denied he had called Mr Whelan "a mean bastard" and he also denied he had told Mr Ellis he intended to lie under oath at the hearing. Mr Fyfe agreed that stealing explosives and "dobbing-in" a work mate were both serious matters which would create a dilemma for him. Another witness for Mr Whelan, was Heath Nicholas Wilson a boilermaker welder employed by the Company, who was a member of the employee committee and was present at a number of interviews which took place over the allegations. Mr Wilson said about six people had been interviewed, but, none of them had been able to assist. Mr Wilson agreed that he and other employees were not fully aware of the reasons or evidence upon which the Company relied in acting against Mr Whelan. Mr Ellis gave evidence that Mr Whelan had been employed first at the Mount Lyell Mine and then at the Henty Gold Mine where there were seven employees. He said Mr Whelan had been employed at the Henty Gold Mine as a jumbo fitter and overall he had been with the Company for about a year. Mr Ellis said that he had been made aware of the theft of explosives allegations against Mr Whelan on about Saturday, 21 September 1997, when another employee came and told him it had been the subject of a conversation at a party the night before. After discussing the situation with two other senior Company employees certain actions were agreed upon. At this discussion Mr Ellis had been told that the same allegations against Mr Whelan had been made during a heated argument on site between Mr Whelan and another. After about a week it was agreed that the actions decided upon were probably not the best, in particular because the Company's principals at the Henty Gold Mine had not been informed of the allegations and it was considered important that they learn first hand from the Company. The principals were informed and it was decided that the allegations be referred to the police: Constable Adam Roger Archer of the Tasmania Police Force stationed at Queenstown was informed. A number of names were given to Constable Archer. Mr Ellis said Mr Fyfe (one of those interviewed by Constable Archer) had come to see him. Mr Fyfe had been concerned for his own safety and that of his parents; he was very agitated and referred to Mr Whelan as a "mean bastard". The Senior Mine Foreman for the Company at Mount Lyell Mine, Peter Death, had been present at this meeting. Mr Ellis said that he believed Mr Fyfe would not have been so agitated if he had nothing to hide. Mr Fyfe would not tell Mr Ellis what he had told Constable Archer. Mr Ellis also said that later Mr Fyfe had told him he had been called as a witness and he was agitated about that as well. In answer to a question Mr Ellis said Mr Fyfe had told him that he intended to lie as a witness in this matter. Mr Ellis said the reason Mr Fyfe was prepared to lie was because he did not wish to be seen as "dobbing-in" Mr Whelan. As a result of the police interviews a warrant to search Mr Whelan's property was obtained, but, no explosives were found. The police informed Mr Ellis that they believed something had been stolen, but, because there was no real evidence no charges had been pursued. Mr Ellis said the police told him that Mr Fyfe had told them he had seen explosives on Mr Whelan's premises, but, Mr Whelan had not intimated where they came from. Mr Whelan was stood-down from work with pay for about eight days after he first was advised of the allegations against him then his employment was terminated. Mr Ellis said that, as a result of all the allegations and his investigations, he did not trust Mr Whelan any more and did not believe he ought to return to the workplace. The Company's principals, the Henty Gold Mine, believed the evidence and would not allow Mr Whelan back on site. In answer to further questions Mr Ellis said Mr Whelan did not have a police record and he also said that no record of the amount of explosives was kept, in fact, despite all the allegations and investigations, it was not able to be shown that any explosives had actually been stolen from the Henty Gold Mine as alleged. Mr Peter Death, gave evidence and confirmed that he had been present when Mr Ellis interviewed Mr Fyfe. This meeting took place after Mr Fyfe had been interviewed by the police. He said Mr Fyfe had been agitated during the interview and had referred to Mr Whelan as "a little mean bastard" and he was not happy at being involved with the allegations and investigations. Mr Death agreed that Mr Fyfe was not the sort of witness one would want to depend upon. Constable Archer in evidence said that following the complaint made to him by Messrs Ellis and Death, he had spoken to three different persons and he reported that one of them said he had seen explosives at Mr Whelan's address. He said none of the three he had spoken to wished to make formal statements. He thought they appeared worried as to the repercussions of their meeting with him. Constable Archer also said that he had conducted a search at Mr Whelan's residence, but, found no evidence. He had told Mr Ellis that no charges would be laid for lack of suitable evidence. The Company submitted that Mr Whelan's employment had been validly terminated for stealing explosives and he had been afforded procedural fairness. The Company urged the Commission to have strong regard for the evidence of Constable Archer and Mr Ellis. The Company relied on the precedent that, in a case such as this, the onus of proof was on the balance of probabilities. In support of the latter argument the Company cited the New South Wales case Zheng Wen Wang and others v Crestell Industries Pty Ltd and Another1 and the South Australian case Bi-Lo Pty Ltd v Hooper2, amongst others. The Company said "We say that in this particular case inferences ought to be drawn from the evidence to be put forward that support our arguments that the employer had a reasonable and genuine belief that the misconduct that was alleged had actually occurred.3" Relying on the case Linsen v Apollo Bay Supermarket4 the Company said that it was proper for it to rely on the evidence of Constable Archer in reaching the decision to terminate Mr Whelan's employment. The Company produced a copy of an enterprise agreement5 applying in respect of its Mount Lyell operations and submitted that Mr Whelan was aware of and bound by the provisions in that enterprise agreement relating to the employer's rights to dismiss on the grounds of misconduct. The Company said it had a valid reason for terminating Mr Whelan's employment based on a genuine and reasonable belief that the theft had occurred. The Company had acted on advice it received from the police regarding statements from informants. It had also acted after discussions with the employee, Mr Fyfe. In the event that the Commission accepted Mr Whelan's arguments, relying on the evidence of Mr Ellis, the Company submitted that reinstatement would be impractical since the relationship of trust and good faith between the employer and the employee had broken down. The Company also sought to mitigate its position if the Commission were to decide on monetary compensation by pointing out that Mr Whelan had obtained other employment, albeit at a lesser salary, he was a young man and his term of employment by the Company which had only been for eleven months to start with would not have been indefinite anyway. DECISION I am satisfied that there was no real evidence that Mr Whelan had done what he was alleged to have done. Except for one instance all the evidence was hearsay in that someone had said to someone else that Mr Whelan had stolen explosives. For example, Mr Ellis said that Constable Archer had told him Mr Fyfe had told Constable Archer that Mr Whelan had stolen explosives. The exception was the evidence from Constable Archer that Mr Fyfe had told him he saw explosives at Mr Whelan's premises. As a witness Mr Fyfe denied he had given Constable Archer any information against Mr Whelan. Both the Company and Mr Whelan discredited Mr Fyfe. The Commission also found Mr Fyfe to be an unreliable witness. Even if the Commission was satisfied that a quantity of explosives was seen at Mr Whelan's premises there was no evidence that it was from Henty Gold Mine and the Company did not know whether or not explosives had been stolen from the site. On this basis even the test of the balance of probabilities must fail; I, therefore, accept the submissions made on Mr Whelan's behalf and reject those made for the Company. I consider the Company did not have sufficient reasons and I accept that Mr Whelan was harshly, unfairly and unreasonably terminated from his employment. ORDER In accordance with the power vested in me under Section 31(1) of the Act in settlement of this dispute I hereby order that Perry Dean Whelan of 560 Bass Highway, Heybridge be reinstated in his employment with National Mine Management Pty Ltd as from 9 October 1997 and I further order that Perry Dean Whelan be paid the amount of wages he would have received had he remained in the employment of National Mine Management Pty Ltd since that date, less the amount of wages he has received in other employment during that period.
P A Imlach Appearances: Date and place of hearing: 1 Exhibit M2 |