T7660
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tony Gilbert Ross and Eumarrah Personnel
Industrial Dispute - Termination of employment - application dismissed - file closed REASONS FOR DECISION This application seeks the re-instatement of Tony Gilbert Ross (the Employee) to his former position with Eumarrah Personnel (the Employer) following his alleged unfair dismissal on 30 March 1998. This matter was heard in Hobart on 2 June 1998. The Employee was represented by Mr D Durkin and the Employer by Mr S Gates of the Tasmanian Chamber of Commerce and Industry. The uncontested evidence in this matter is that the Employee's services were terminated on 30 March 1998, with the payment of one week's wages in lieu of notice and also accrued entitlements. He had been in the employ of the Employer for approximately nineteen (19) months and had been engaged on a range of functions including store work, general maintenance and truck driving. On 30 March 1998 the Employee attended a meeting with the Employer (Mr Johnson and Ms Johnson-Montesinos) where he was advised that the Employer had lost confidence in him and he was asked to resign. To effect the resignation the Employee was asked to sign an "agreement"1 which detailed the conditions of the Employee's termination. The Employee initially refused to sign the "agreement" but ultimately did so. The Employee gave evidence that he felt pressured at the time, to sign the "agreement", that in fact he was being terminated and that if he didn't sign he would not be getting his award entitlements and would have to wait a period of weeks for unemployment benefits if he was unable to find another job.2 In any event the Employee ceased work on 30 March 1998. The Employer (Mr Johnson) gave evidence explaining the reasons for his loss of confidence in the Employee. He identified a number of matters or issues that had caused him to have the meeting with the Employee on 30 March 1998. The first of the matters was identified as the loss of monies paid to the Employee on two (2) occasions the 16 and 26 February 1998 and concern about money paid to the Employee on 30 March 1998. The circumstances surrounding the loss of money were that the Employee delivered goods to the Zum Café and received cash payments for the goods. The Employee acknowledges receiving the money and maintains that he left it in a tray in the office. He didn't know what happened to it after that. I will come back to the evidence of what happened on 30 March 1998 later. The second issue raised by Mr Johnson was the alleged unauthorised use of the Eumarrah petrol account by the Employee to obtain petrol for his private vehicle. The third issue was allegations that the Employee was negligent in his management of fresh produce which was part of his responsibility in the warehouse. This negligence caused financial losses to the Employer on at least two occasions. As indicated earlier the evidence of the Employee relating to the loss of money was that on 16 and 26 February 1998 he returned from his normal deliveries and either then or at the end of the day's work put money and documents that related to deliveries including those to the Zum Café in a tray in the office. He maintained the office was not attended at the time and he does not know what happened to the money after leaving it in the tray. On 30 March 1998 which was his first day back at work from a period of leave, he also delivered goods to the Zum Café and as was the customary practise he acknowledged he was paid in cash. When asked about the cash at the meeting on that day he maintained it was in the door panel of the truck. He acknowledged that he was supposed to bring any cash to the office on his return from the delivery run but didn't do so on some occasions leaving it to the end of the day. He later recovered the money from the glove box of the vehicle and handed it to the Employer. He also acknowledged that there was a log book that was used by drivers so that a record of deliveries and payments could be kept however, he did not fill in the log book as required. The Employee's evidence was that the log book was introduced after losses of stock and money in late 1996, but that he seldom used it. The Employer's evidence on this issue was that during the last week in March 1998 one of the office staff drew to his attention the fact that Zum Café had not paid for deliveries on 16 and 28 February 1998. While she had at first thought it was a paperwork error she had not been able to find the problem and could only conclude the accounts had not been paid. Following the Employee's failure to bring the cash from the Zum Café delivery to the office on his return from his delivery run on 30 March 1998 the meeting earlier referred to was arranged. After advising the Employee of his loss of confidence in him the Employer asked after the cash from Zum Café and was advised that it was in the door compartment of the truck. However, his wife checked the truck and could not find the paperwork or the cash. Following this advice to the Employee, he (the Employee) and Ms Johnson-Montesinos went to the truck. On the way Ms Johnson-Montesinos saw the Employee take the money, plastic bag and invoice out of his pocket put it into the glove box and then remove it from the glove box and gave it to her.3 This version of events was later supported by the evidence of Ms Johnson-Montesinos. No allegation of stealing is made against the Employee from these events. However, what is not disputed out of the evidence surrounding this issue is that the Employee did not carry out clear instructions to fill in a log book. The log book being introduced following earlier problems with loss of stock and cash. Part of the Employees evidence on this matter is as follows:- "Mr Gates xxn Do you recall there being a driver's log book, which was required to be kept by drivers making deliveries?............ I do know of a log book, yes. Have you ever completed that log book?............No. You have never completed that log book?............Probably once, yes. Once I would have done. A couple more times than once?............ I suppose, yes. Three times?............ I don't know."4 and "On the 16th February and the 26th February 1998, can you recall making a delivery to Zum Café?............ I can, yes. And they paid in cash on those occasions?............ They did yes. The evidence of the employer will be that at no stage did Eumarrah ever receive cash for those transactions. Okay? Did you complete your driver's log for the 16th February and 26th February?............ These deliveries were done on odd days. Did you fill in that log book?............ No, I didn't. And you didn't fill in the log book for the 30th March?............No, that is correct. No."5 I do not conclude from the evidence that the Employee stole from the Employer however, his lack of regard for a process which would not only protect the Employer but also the Employee in the handling of cash can only be regarded as a serious dereliction of duty. In relation to the alleged use of petrol for private purposes by the Employee, the evidence of the Employee was that about eighteen months ago he was given authority by the Employer to put petrol in his car for use on work related business, mainly repairs and maintenance at Eumarrah stores. He admitted to putting $20.00 worth of petrol at a time, on probably six occasions in his private vehicle. He maintained that this was to cover work related use of his vehicle. He would charge the petrol to the Eumarrah account at the Caltex West End service station. If he filled his car, any cost over $20.00 he would pay himself. Part of the Employee's evidence on this issue is as follows:- "Mr Durkin xn. So when you were putting the petrol in your car, when did he authorise you to do that?............ Well, I asked him probably about 18 months prior, could I put some petrol in my car and he said, yes, no problem, that's fine. So how much did you put in?............ Twenty dollars. Never more than $20.00. So, just explain to us where you went to get the petrol and how you went about putting $20.00 in?............ We used to get it from the West End - Caltex West End. I used to just go in there and I put $20.00 in my car and used to sign it. How much fuel did your car take?............ If I filled it up, $55.00 to $60.00, depending on the price. Did you ever fill your car up?............ There? Yes?............ Once I did but I paid the balance - the $28.00 over myself. So, you always only took $20.00?............ Yes. And did you sign for that fuel?............ Yes, always. Right. And how often did you do that?............ It was probably only six times. In the 19 months?............ Yes."6 However, later in cross examination by Mr Gates the Employee changed his story:- "Mr Gates xxn You said in relation to the usage of petrol, that you never put more than $20.00 in your car?............ That's right. Except on the one occasion where you said that you put in $48.00 and you subsequently paid $28.00 back?............ Yes. I'm pretty sure that's right. Yes. I'll put it to you that that is in fact incorrect and that on three other occasions you put more than $20.00 into your own vehicle?............ I can't remember the exact amounts. Well, let me put it to you this way, on 24th January 1998, you put $30.00 in your vehicle; on the 6th June 1997 you put $25.00 into your vehicle; on 17th January 1997 you put $26.00 in your vehicle. Would you agree with that?............ Possibly. I can't remember the exact figures, no. Do you dispute it?............ No, it could be right."7 Part of the Employer's evidence on this matter is:- "Mr Gates xn. If I take you to the unauthorised usage of fuel, the applicant has stated that you authorised him to use your company fuel account for his own personal vehicle. Do you agree with that or do you dispute that?............ I disagree. My recollection is that I did not authorise him to do such a thing. Do you recall it being mentioned though, about this fuel account?............ My reflection is that was not. He says that he spoke to you on one occasion in August of '96 and you said that he could put about $20.00 into his own vehicle from your service station, on the company account. Do you recall that conversation?............ No, I do not recall that. No. I was paying petrol money in with his wages. As a vehicle allowance?............ Yes. If the witness could be shown this document. Did you cease paying the applicant, Mr Ross, the vehicle allowance?............ Yes. And why did you cease that?............ Because he was no longer extensively using his vehicle. He was using it for his own personal purposes of course but for business purposes there was no longer a requirement."8 The evidence of the Employer on this and other issues was clear and unshaken during cross examination. By contrast much of the Employee's evidence was qualified in cross examination and in some cases changed altogether. I much prefer the evidence of the Employer on the issue of petrol purchases and therefore accept that the employee purchased petrol on the Employer's account without authority and for his personal use. The third issue of poor stock control by the Employee was the subject of a written warning9 to the Employee dated 2 February 1998. The last paragraph of Ex. G.1 reads:- "As you know, it is your job to carefully ensure that fresh produce is kept in good condition and that produce is sent out to shops to be sold before it deteriorates. Do not allow this situation to repeat where produce has been allowed to deteriorate in the warehouse without having had the opportunity to be sold in a shop while it was still in good condition. If this does repeat you may expect your employment to be terminated." The Employee acknowledged the written warning and the circumstances resulting in it being issued. Those circumstances were not challenged in his evidence. He also acknowledged another incident on 28 February 1998 when he was confronted by the Employer over a further loss of stock. He accepted that he had not made a good decision in relation to the condition and sale of that produce. The Employee also acknowledged that he had used inappropriate language to a female staff member and had been spoken to by the Employer about the incident. Having regard for my findings on the Employee's total disregard of important paperwork associated with the delivery of goods and cash payments for same. My findings on the unauthorised use of the Employer's petrol account and the admissions of the Employee in relation to stock control and personal conduct I do not accept that the Employee was unfairly terminated. The application is therefore dismissed and I so order.
J G King Appearances: Date and place of hearing: 1 Ex R.1 |