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T7994

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for a hearing in respect of an industrial dispute

Geoffrey Alan Jackson
(T7994 of 1998)

and

Vynleaf Pty Ltd
trading as Research Products

 

DEPUTY PRESIDENT J G KING

Hobart, 19 January 1999

Industrial dispute - re termination of employment - alleged unfair dismissal - application dismissed

REASONS FOR DECISION

During the merit considerations in this matter Mr Laning of counsel for Vynleaf Pty Ltd (the Employer) raised the fact that Mr Jackson (the Employee) had not complied with the requirements of s.29(1B) of the Industrial Relations Act 1984 (the Act) in that his application had not been lodged with the President within the prescribed fourteen (14) day period following his termination. It was Mr Lanings submission that I should have regard to Parliament's clear intention that applications be filed within the fourteen (14) day period and not exercise my discretion to extend the period.

The Employee was terminated on 3 September 1998 and lodged his application on 21 September 1998 a discrepancy of some four days.

I was not impressed by the Employee's reasons for his lateness in lodging the application. His evidence was that he had to wait for an appointment with an officer of Workplace Standards until the 21 September after making the original telephone contact on 7 September 1998. However, during his original call on 7 September 1998 he only raised the issue of pro-rata long service leave, it was not until his meeting on 21 September 1998 that the possibility of an unfair dismissal claim was raised, by him or an officer of Workplace Standards is not clear. The impression from his responses to questions was that his only issue in going to Workplace Standards related to his long service leave and during discussions on that issue he found reasons why he should lodge an unfair dismissal claim.

Whether the above be the case or not I am prepared to exercise my discretion, particularly having regard for the short period at issue, and not dismiss the application because it was out of time.

The arguments going to the claim that an unfair dismissal occurred fall into two categories, those going to the merit and those going to alleged shortcomings in the dismissal process.

In relation to the merit arguments I will not summarise the arguments of the parties as is the usual procedure, because much of the evidence of the Employer going to misconduct or poor performance by the Employee was not denied or challenged by the Employee.

The main accusations against the Employee were that he had over a period of time since becoming the State Manager of Research Products in February 1997, deliberately ignored reasonable directions of the Employers, ignored clear policies in relation to the handling of cash and driven a company motor vehicle during a period that his drivers licence was suspended. That he had also deliberately misled the Employers in relation to his licence status.

Mr Graham appearing for the Employee in final submissions and in referring to the drivers licence issue said:

"It is clear that the respondent has based his case on the driving licence issue, which normally would lead to instant dismissal and I don't think there's any issue there, that is, it connotes a deliberate flouting of the essential contractual conditions."1

The evidence was that the Employee lost his licence in October 1997, for exceeding the legal alcohol level, for a period of twelve (12) months. During the time of suspension he admitted driving the company vehicle on a number of occasions. He also admitted that he tried to mislead the Employer by arranging through a friend at Service Tasmania to have misleading documents sent to the Employer. The documents related to his current driving record and status and his critical responses in cross examination were:

"Mr Laning xxn

That's not the only reason surely, because the record from Service Tasmania would indicate that you were disqualified?............ That's right and he could delete that.

He could delete that?............ Yes.

You calculatedly called your mate to get a doctored, essentially, record?............ Yes.

What was your mate's name?............ I won't divulge that.

But he was employed by Service Tasmania?............ Yes.

So your mate did the deletion?............ Yes.

You didn't yourself?............ No.

      But he did it at your direction?............ Yes."2

That "doctored" document was then sent by the Employee to the Employer in Sydney for use by the Employer in negotiating new insurance premiums for Company vehicles in Tasmania.

Part of a letter hand delivered to the Employee by Mrs Elizabeth Goldsmith at the time of his dismissal reads:

"September 2nd 1998

Mr Geoff Jackson
31 Jubilee Avenue
Brighton Tas

Dear Geoff,

A number of things that I have become aware of in the past few weeks have seriously eroded my faith in human nature. This disappoints me greatly.

Since your promotion to Manager of Research Products Tasmania we have given you the opportunity to develop this market to the extent of your ability. We have shown faith and trust in you and feel we have always been prepared to give you back up and support. There were no limits imposed on the extent of your growth.

You are fully aware of the financial struggle we have had in maintaining our Tasmanian branch and despite this we have never lost faith in your ability and have always felt with support our Tasmanian venture would be successful.

I am now aware that in October last year you were disqualified from driving for twelve months. I am horrified at the position you have placed this company in and that you have shown total disregard for the security of your wife and family.

I have no alternative but to dismiss you from this position from today."3

It is obvious from the above that the Employer believed the motor vehicle licence issue was misconduct and grounds for dismissal and acted accordingly.

In relation to the disregard of company policy the Employee gave evidence in cross examination going to cash sales as follows:

"Mr Laning xxn

What was the company policy. What had Mr and Mrs Goldsmith said about this procedure, with cash sales?............ The company policy was that it was to be collected at the time of delivery.

Why didn't you do that?............ Sometimes when they were a valued client, you would deliver probably two or three drums to them and if the person wasn't there to write the cheque out or pay you, it was easier to leave the drums than carry them back out to your van or to your vehicle and call back.

But you were directed on numerous occasions, and correct me if I'm wrong, that you had to pick up the cash straightaway?............ Yes.

Well, why didn't you do it? You've explained to us why you didn't do it but if that was your direction, why didn't you do it?............ I wasn't the only one who did it this way. It was, as I said - if you've ever carried 25 litre drums -

I appreciate that but it was company policy and you disregarded it?............ I didn't disregard it.

You said you disregarded it, a few answers ago?............ All right. I disregarded it."4

Other instances of similar disregard for reasonable and proper instructions given by the Employer to the Employee were the subject of further cross examination of the Employee. However I do not believe it necessary that I record each of them but simply note that there were a number.

My conclusions from the evidence in this matter are that the Employee was guilty of gross misconduct in relation to the drivers licence issue and his general performance as a responsible manager was sub-standard and both matters if dealt with appropriately by the Employer could result in his dismissal.

In the ultimate the arguments of Mr Grahan in support of the applicant focussed on the process leading up to the Employee's dismissal. It was his submission that the Employee was not given an opportunity to defend himself and that there in fact had been a clear breach of Article 7 of Part 11 of the International Labour Organisations Convention concerning Termination of Employment at the Initiative of the Employer which reads:

"Article 7

The employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity."

The evidence of Mrs Goldsmith a Director of Vynleaf Pty Ltd in relation to the termination is recorded as follows:

"Mr Laning xn

Did you say anything to Geoff when you walked into the office?............ When I walked into the office, Geoff was sitting at his desk and he was very surprised to see me. I said, I'm very sorry to have come under these terms but, unfortunately, I've become aware that you've been driving without a licence and I have come to terminate your employment.

Did you explain those reasons you just explained to the commission, about the distrust, et cetera?............ No. I suppose the detail of that was reference to the money not banked and to the machinery with Rod Kingston and the stock levels not being the same as the stock-take levels. I suppose I felt that that was inferred in the letter. I didn't go into those details with Geoff.

Regarding the forged documents, so to speak, or discrepancies in the licences and misrepresentation therein that you've just identified to the commission a couple of moments ago, did you identify those to Geoff?............ No. I didn't go into those details with Geoff because I felt he was the person who'd orchestrated it all and he must have been fully aware of it."5

and in further elaboration of what happened on 3 September 1998 in cross examination the transcript reads:

"Mr Graham

And can you tell me what transpired, please?............ I walked into the office and said, that I was sorry that I was here for the reason I was here, that I had established that he had been driving without a licence since October 1997 and that on my understanding, from the advice I'd been given, that this was reason for the termination of his employment. I handed him the letter. I made particular attention to handing him both cheques, because I know that you can't withdraw any money owing to a company from somebody's wages. That's why I had two cheques and that is why I particularly handed him both of them, but I took one back because that was to cover the money that was outstanding for cash sales.

You actually handed the cheque to Geoff?............ Yes, I did, and then I asked him if he would please clean up his desk and I stayed there and at no time did he want to give me any explanation or want to have any discussion about what had taken place, or offer any explanation for why he'd been driving without a licence.

Can I just look into that a bit further?............ Yes.

He didn't want to discuss the situation?............ No.

Or offer any reasons as to his - ?............ No.

Did you give him that opportunity to do that?............ Well, I was sitting there. I had given him my reasons for terminating his employment and I was sitting in the same office.

Did you actually ask him to respond?............ No, I didn't.

That was it. So far as you were concerned, Geoff fully understood why he was being terminated?............ Yes."6

It is clear from the above that the Employer did in fact contravene the requirements of the Industrial Relations Act 1984 and in particular Article 7 by not giving the Employee the opportunity to defend himself against allegations of misconduct and poor performance before dismissing him.

My dilemma in this case is obvious I have accepted the evidence that the Employee is guilty of serious misconduct in relation to the drivers licence and has also been a poor performer as a manager over an extensive period of time. There is also the issue of his purchase of machinery which raised questions of conflict of interest and the amount of outstanding cash from cash sales which from his evidence left many questions unanswered and more than a suggestion that he had been inappropriately using Employer funds. These performance related issues in my view also constitute grounds for dismissal.

If the process leading to dismissal had been appropriate, this application would clearly be dismissed. I am now left to decide whether the misconduct and other issues are such that they should override considerations going to a lack of fairness in the dismissal process.

There is no doubt that the licence issue is very serious. The Employee was not only breaking the law every time he drove a company vehicle but he was also implicating the Company in possible substantial financial consequences should he have had a serious accident. He had an obligation as a responsible employee to advise of his loss of licence, he not only chose not to but ultimately deliberately misled his Employer by providing false information.

His poor performance and possible dishonest or unprofessional actions relating to cash and other matters are also serious.

On balance I am not prepared, because of the seriousness of the issues going to merit, to determine that the lack of a proper process to terminate the Employee should override the other considerations. Process and fairness in a process is a very important consideration and the lack of substantive fairness generally results in a penalty against the Employer. I believe the circumstances of this case warrant an exception to that general principle.

In any case if I was to consider compensation in this matter it would be in accordance with a judgement of Wilcox C.J. in Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 which details the approach adopted by this Commission as appropriate in considering compensation in these circumstances. That approach broadly is to consider what would be likely to occur should the Employer adopt a proper process to achieve the outcome desired, in other words how much longer would the Employee have remained in employment beyond the termination date if the process had been done properly. In the case of the performance issues the answer may well have been some weeks. However, as I accept that the licence issue constituted serious misconduct I conclude that in this case following a proper process on the day of the termination the outcome would have been the same ie. the Employee would have been summarily dismissed.

Therefore in accordance with s.31(1) of the Act I dismiss this application and order accordingly.

 

J G King
DEPUTY PRESIDENT

Appearances:
Mr J Graham with Mr G Jackson.
Mr A Lanning of Counsel with Mrs E Goldsmith and Mr J Goldsmith for Vynleaf Pty Ltd.

Date and place of hearing:
1998
October 12
November 30
Hobart

1 Transcript page 92
2 Transcript page 39
3 Exhibit G2
4 Transcript page 10
5 Transcript page 60
6 Transcript pages 63 - 64