T6658
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Trevor William Monson and Blue Ribbon Meat Products Pty Ltd
Appeal - decision by Commissioner R J Watling on 21 November 1996 in matter T6592 of 1996 - appeal dismissed - decision confirmed REASONS FOR DECISION On 23 October 1996 The Australasian Meat Industry Employees Union, Tasmanian Branch applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing in respect of an industrial dispute concerning the termination of employment of Mr Trevor Monson. In his Reasons for Decision of 21 November 1996 Commissioner Watling, to whom the President had referred the matter, described the nature of the dispute in the following terms:1
The circumstances surrounding Mr Monson's termination also appear at length in Commissioner Watling's decision. Briefly, it seems that at the relevant time Blue Ribbon Meat Products made available to its employees a "meat allowance". That allowance enabled employees, provided they followed certain procedures, to obtain meat from the Company at regular intervals. On 10 October 1996 employee Kevin Smith, who was finishing up that day, asked Mr Monson (evidently in relation to his "meat allowance") to get him two cartons of meat - one of cubed rolls, the other of topsides. Mr Monson informed Mr Smith that there were no topsides available, whereupon the latter said he would take eye rounds instead. According to Mr Monson, Mr Smith (who Mr Monson said was the Quality Assurance Manager but who, on the evidence, was more likely a trainee manager) directed him to change the label describing the carton's contents. For that purpose Mr Monson took the carton to the employee in charge of labelling and weighing, who relabelled the carton as requested. As a result of this activity the Company subsequently debited Mr Smith's "meat allowance" account for one carton of topsides, the contents of which were actually eye rounds - a difference in value of about $9.00. Another employee of the Company, who became aware of the label change, reported the event to the Boning Room Manager. After an investigation by Company officers the Plant Manager decided to dismiss Mr Monson because of dissatisfaction with Mr Monson's explanation regarding his involvement in the relabelling incident. After hearing the parties Commissioner Watling concluded that Mr Monson:2
After finding that Mr Monson "was prepared to bypass the rules" concerning accurate labelling of packaged products, Commissioner Watling went on to say:3
It is from this decision that Mr Monson now brings these appeal proceedings. The Grounds of Appeal as lodged are that the Commissioner erred:
When the appeal came on for hearing Mr J Bronstein of Counsel, who appeared by leave for Mr Monson, abandoned Appeal Grounds 1 and 4. Mr A Cameron of the Tasmanian Chamber of Commerce and Industry Limited appeared for Blue Ribbon Meat Products Pty Ltd. In considering and determining the contentions put to us by the parties in this matter we apply the well known principles established by the High Court in House v The King (1936) 55 CLR 499, 504-505 per Dixon, Evatt and McTiernan JJ. Mr Bronstein developed three arguments in support of Appeal Grounds 2 and 3. First, he submitted, Commissioner Watling misconstrued the effect of Irene Schaeffer v Dealore Pty Ltd trading as Hawker Festival (1996)4, to which Mr Cameron had referred him as authority for the proposition that, in cases involving breach of trust, the value of the goods concerned is immaterial. The Commissioner relied on this authority, Mr Bronstein said, in support of his decision to refuse to intervene in Mr Monson's termination.5 To view the case in the manner suggested, Mr Bronstein contended, is to rely on selective extraction whereas, he continued, properly construed as a whole the decision does not have the significance assigned to it by the employer. Mr Bronstein acknowledged that in Schaeffer, a case involving breach of trust by an employee concerning an intention to pay for goods taken, the Judicial Registrar agreed with submissions put to him that "... in matters of this kind the value of the goods concerned is immaterial ..."6 However, Mr Bronstein submitted, the Judicial Registrar went on to say that, but for the recent High Court decision which declared invalid the provisions of Section 170DE(2) of the Industrial Relations Act 1988 (C'wlth.):7
Section 170DE(2) of the federal Act, Mr Bronstein explained, was the provision that dealt with harsh, unjust and unreasonable termination of employment. In the circumstances, Mr Bronstein submitted, the significance of the case "... is not sufficient for the Commissioner to rely upon it as an authority to support the employer's view that the trivial nature of the incident should be disregarded for the purpose of the termination decision".8 This is so, he contended, because in Schaeffer the Judicial Registrar said in effect that, had the employee had the benefit of Section 170DE(2), his decision "may well have been very different". Mr Cameron, responding, emphasised the Judicial Registrar's observations in Schaeffer that "in matters of this kind the value of the goods is immaterial". Theft is theft, Mr Cameron said, and the Judicial Registrar's discussion about Section 170DE(2) of the federal Act has no significance for the case before Commissioner Watling. The point of Schaeffer, Mr Cameron argued, is that in cases of theft the value of the goods stolen is immaterial. In any event, Mr Cameron submitted, there was more to Mr Monson's termination of employment than the small amount of money involved. The employer's submission before Commissioner Watling, Mr Cameron said, was that:9
Mr Cameron said that three witnesses, Messrs Ericksen10 and Taylor11 and Mrs Shelley,12 attested to their awareness of the consequences of label changing in terms of the AUS-Meat accreditation and its requirements on an export plant such as Blue Ribbon Meat Products Pty Ltd. Mr Monson himself, Mr Cameron continued, admitted to being aware of those requirements.13 We agree that Commissioner Watling relied on Schaeffer, but we do not think he did so to any untoward extent. The whole thrust of the Commissioner's decision, as we comprehend it, goes to the issue of breach of trust rather than simply the value of the goods concerned.14 For this reason, in our view, it is immaterial what the Registrar (in Schaffer) may or may not have done in different circumstances. The facts before the Commissioner were that, the value of the goods aside, Mr Monson, whose position the Commissioner said "was one of trust and carried a lot of responsibility", showed that he "was prepared to by-pass the rules" in breach of the trust reposed in him by the employer, given his job as Quality Assurance Officer. The evidence before Commissioner Watling was that Mr Monson's denial of the requirements of his position - requirements of which Mr Monson admitted his awareness - contained the potential to prejudice the employer's AUS-Meat accreditation.15 In the circumstances, we believe it was open to Commissioner Watling, having noted in his decision that Mr Monson could not offer any satisfactory reason for doing what he did,16 to conclude, at least by inference, that Mr Monson's acts were not trivial, his otherwise exemplary work record notwithstanding. Accordingly, we accept Mr Cameron's submissions on this point, finding that Commissioner Watling did not err by misconstruing the effect of Schaeffer because, as Mr Cameron argued before the Commissioner, there was more to Mr Monson's termination of employment than the small amount of money involved. In his second argument in support of Appeal Grounds 2 and 3, Mr Bronstein submitted that Commissioner Watling wrongly excluded from his considerations a written statement (Exhibit S3) of Mr Monson's supervisor, employee Kevin Smith, which states that:
Mr Bronstein took us to the record of proceedings before Commissioner Watling, which shows that Mr Cameron, for the employer, objected to the document on the grounds that "there's no evidence to say that it has been signed by Mr Smith; it's not in the form of an affidavit or statutory declaration"; and that "Mr Smith is not here to be cross-examined".17 After some discussion, which concluded with Mr J Swallow for the Union saying that "if anything hinges on the statement I'll most certainly get a stat declaration signed", the Commissioner determined he would put Exhibit S3 to one side - a ruling that he later confirmed in response to a request by Mr Cameron for clarification.18 Mr Bronstein said that while Mr Monson regarded Mr Smith as a superior, the actual position held by that employee in the employer's service was never clarified in the proceedings before Commissioner Watling. The Commissioner recognised this difficulty in his decision, Mr Bronstein submitted, where he recorded, without identifying the person concerned, that Mr Monson "... asserted that he was directed to falsify the label on a carton by another person ..."19 The importance of Exhibit S3, Mr Bronstein argued, is that in the presence of conflicting oral evidence, the Commission may resort to contemporaneous documents for the purpose of clarifying the evidence. In Mr Monson's circumstances, Mr Bronstein suggested, where the former employee's claim is that a superior or a member of management directed him to change the label, Commissioner Watling should have allowed the document into evidence because it tends to confirm that management was telling Mr Monson what to do. In reply Mr Cameron asserted that, in setting the document aside, Commissioner Watling never ruled on its admissibility, did not exclude it from evidence and was aware of its contents at the time he took his decision. But even so, Mr Cameron continued, the document is of little help in relation to the circumstances surrounding Mr Monson's dismissal. In that context, Mr Cameron submitted, it was open to Mr Swallow to develop the matter further at the original hearing but, since he did not, it is not for us to reopen the debate about the document's content. Turning to Mr Bronstein's contention regarding the contradictory nature of the evidence concerning Mr Smith's position with the company, Mr Cameron said that Commissioner Watling had before him the evidence of three persons on this point: Witness Ericksen said that, when he was employed in Launceston, he understood Mr Smith's position at Smithton to be that of trainee manager, a fact that Mr Smith himself later confirmed;20 witness Taylor said that Mr Smith was a trainee manager;21 and Mr Swallow, in his questioning of Mr Monson, referred to Mr Smith as the trainee manager.22 In addition, Mr Cameron said, witness Ericksen's evidence is that on 10 October 1996 Mr Smith was employed in the boning room and witness Taylor's evidence is that he, as Boning Room Manager, and not Mr Smith, was Mr Monson's superior. Commissioner Watling in his Reasons for Decision, Mr Cameron continued, recognised the existence of the trainee manager evidence and also took into account Mr Monson's assertion that he was directed to change the carton label by another person. The weight that Commissioner Watling gave all this evidence was entirely a matter for his discretion, Mr Cameron submitted, in light of what the Commissioner himself identified as the main issue:23
We commence our consideration of this issue by observing that the evidence surrounding Mr Smith's role in this matter is very unsatisfactory and, as to certainty, inconclusive. It was open to both sides to call Mr Smith as a witness, yet neither did so, so that he might clarify both his position with the company and what, if anything, he said to Mr Monson concerning the label changing episode. Turning now to Exhibit S3, it seems clear enough as a matter of inference, as we read the transcript, that Commissioner Watling decided to set the document aside in order to give Mr Swallow (then appearing for Mr Monson) an opportunity to introduce more reliable evidence on the point. Mr Swallow did not take advantage of that opportunity. In the circumstances, we think the Commissioner effectively excluded the document from the evidence even though he marked it as an exhibit. To this extent we agree with the submissions of Mr Bronstein. However, our finding does not appear to assist Mr Bronstein in any significant way because, even if we were to regard Exhibit S3 as a contemporaneous document to which the Commissioner might properly have had recourse, we believe its content is ambiguous and unhelpful. For example, it is not declaratory of what, if any, directions Mr Smith gave Mr Monson about re-labelling the meat cartons. Nor does it resolve the evidentiary conflict of Mr Smith's actual employment position with the company. On this point the best evidence before Commissioner Watling tends to show that Mr Smith was merely a trainee manager, a fact to which the Commissioner himself referred in his decision.24 In the circumstances we do not see how Commissioner Watling could have derived more from a consideration of Exhibit S3 than he actually concluded in its absence. In any event, as Commissioner Watling clearly infers, whatever Mr Monson may have thought Mr Smith's position to be is not to the point because, as the Commissioner records:25
and, later on:
In short, it seems to us that Mr Monson's responsibilities as Quality Assurance Officer, to which he admitted awareness, did not require him to, as Commissioner Watling says, "by-pass the rules" at the request of a fellow employee who may (or may not) have had some kind of managerial status. For these reasons we believe that Commissioner Watling was not wrong in excluding Exhibit S3 from his considerations because, even if Mr Smith's status as an employee was at managerial level, as he appears to suggest in the document, Mr Monson's responsibilities as Quality Assurance Officer, in the circumstances, were such that he was not obliged, contrary to Mr Bronstein's submission, to respond to Mr Smith's direction if that request required him to act inconsistently with his quality assurance responsibilities. Concerning his third argument regarding Grounds of Appeal 2 and 3, Mr Bronstein took us to Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 which Mr Cameron cited before Commissioner Watling as authority for the proposition that an:
Mr Bronstein contended that, in applying Laws as he did, Commissioner Watling misconstrued the principle of that case with reference to the circumstances before him. In Laws, Mr Bronstein said, the Court found that "this single act of disobedience did not justify the summary dismissal of the plaintiff".27 In the present case, Mr Bronstein argued, Commissioner Watling erred in relying on Laws as support for the employer's contention that Mr Monson's single act evidenced an intention to repudiate his contract of employment. This is especially so, he continued, because during his six years of employment with Blue Ribbon Meat Products Pty Ltd, Mr Monson was never subject to warnings or counselling of any kind. Certainly, Mr Bronstein submitted, the evidence is that the employer never told Mr Monson that changing a label on a carton of meat would result in automatic summary dismissal. In reply, Mr Cameron contended that, having regard to Laws, there was a wilful change of labels on the carton, which Mr Monson did not deny. Indeed, Mr Cameron continued, Mr Monson admitted to instructing another employee, Mr J Moles, who was in charge of the labelling and weighing machine, to participate in changing the label.28 All that evidence and those submissions, Mr Cameron contended, were before Commissioner Watling.29 Mr Cameron also reminded us of his earlier submission that triviality was not the sole matter that the employer took into account in terminating Mr Monson's contract of employment.30 All the grounds upon which the employer relied, Mr Cameron said, were before Commissioner Watling, whose Reasons for Decision record that:
Mr Cameron said that the evidence of the plant manager (Mr Ericksen) is that he "didn't have any other position for him" within the company because Mr Monson "couldn't be trusted to carry out his position correctly".31 We accept the submission of Mr Bronstein that, on the evidence before Commissioner Watling, the company never told Mr Monson at any time that changing the labels on a carton of meat could lead to his summary dismissal. That said, however, the evidence is equally declaratory of the fact that Mr Monson could not have failed to be aware of the gravity of his actions and their potential to impact adversely on the company. This must be the case, we think, because Mr Monson acknowledged that he knew of the certification requirements and the high level of trust that the company placed in him in that regard. Indeed, the thrust of Mr Cameron's submissions to Commissioner Watling on this point, as we see it, is that Mr Monson's actions concerning the label changing episode put him in fundamental breach of the trust that the employer reposed in him regarding quality assurance. This reflects in the reason given by Mr Ericksen that he did not have another position in the company for Mr Monson because he "couldn't be trusted to carry out his position correctly".32 For these reasons we believe that, although the label changing episode was the sole event of misconduct in Mr Monson's otherwise unblemished employment record, it was open to Commissioner Watling to find on the evidence, as in effect he clearly did, that the matter was not trivial. As Commissioner Watling records in his decision, Mr Monson "admitted his involvement but said that he had done it at the request of Mr Smith;33 ... on his own admission ... was aware of the consequences of relabelling and ... knew the procedures to be followed when a carton of meat had to be relabelled";34 and "could not provide the Commission with any satisfactory reason for doing what he did".35 Coming to Appeal Ground 5, Mr Bronstein submitted that the evidence of witness Taylor (the Boning Room Manager) and witness Ericksen (the Plant Manager) concerning management inquiries into Mr Monson's circumstances were insufficient to permit Commissioner Watling to find that Mr Monson had enjoyed procedural fairness. In this regard Mr Bronstein took us to Section 31(1A) of the Act and the Part II of the International Labour Organisation's Convention concerning Termination of Employment at the Initiative of the Employer and, in particular, Clause 9 which provides that:
The evidence of witnesses Ericksen and Taylor, Mr Bronstein contended, shows that at no stage did the employer make it clear to Mr Monson that he had the right to call an independent person, or a union officer, to assist him during the discussions that he had with Messrs Ericksen and Taylor. Furthermore, Mr Bronstein advanced, after Mr Monson admitted to his indiscretion, the employer gave him no opportunity to suggest alternative disciplinary action that the employer might take instead of dismissal. Mr Bronstein contended that witness Ericksen's evidence that "I didn't think that I had a position for a QA who would get involved in that sort of thing and I was terminating his employment with the company"36 shows he had already formed the view that he was going to dismiss Mr Monson. In all the circumstances, Mr Bronstein submitted, Commissioner Watling erred in his application of the required procedural fairness test, a fact which reflects in his Reasons for Decision where he records the finding that "... nor was it established that he [Mr Monson] was denied some procedural fairness, natural justice, or industrial fair play ..."37 In this regard, Mr Bronstein contended, there is no test of "some" procedural fairness - the employee either enjoyed procedural fairness or he did not. The true test of procedural fairness, Mr Bronstein said, is that outlined in Part II of the ILO Convention, which the evidence shows was not accorded to Mr Monson by his employer. Mr Cameron, in reply, contended that Section 31(1A) of the Act only requires the Commission to take into account the standards of general application contained in Part II of the Convention as set out in Schedule 10 of the Commonwealth Act, as it then was. The provision on which Mr Bronstein relies, Mr Cameron continued, is part of ILO Recommendation No 166, which comprises Schedule 11 of the federal legislation. In the circumstances, he submitted, the provision is not one of the requirements set out in Part II of Schedule 10 of the Commonwealth Act of which this Commission must have cognisance. But, even if we were to take the provision into account, Mr Cameron argued, the question of alternative employment was before Commissioner Watling in the evidence of witness Ericksen who said, as reported above,38 that he "didn't have any other position for him" within the company because Mr Monson "couldn't be trusted to carry out his position correctly". Moving on to the issue of procedural fairness Mr Cameron submitted that the company did carry out a proper investigation. The evidence before Commissioner Watling on this issue, Mr Cameron said, was that Mr Taylor received the initial complaint from employee Shelley, a packer, who actually witnessed the label changing event.39 After speaking to employee Moles, a labourer working on the scales, Mr Taylor informed Mr Ericksen of the complaint40, who asked Mr Taylor to get more information.41 After receiving that information, Mr Ericksen then spoke to Mrs Shelley.42 Subsequently, in the presence of Mr Taylor, Mr Ericksen interviewed Mr Monson, asking him to explain his involvement in the matter.43 Following this interview, Mr Cameron submitted, Mr Ericksen asked Mr Monson to go home and write out a full statement of what had happened.44 Subsequently, Mr Ericksen spoke to Mr Smith about the contents of the cartons.45 After this discussion Mr Ericksen asked Mr Taylor to call Mr Monson back to the meat works for a second interview.46 It was at this interview that Mr Ericksen told Mr Monson that he was terminating his employment with the company.47 This evidence, Mr Cameron argued, clearly supports the contention that the employer did offer Mr Monson procedural fairness in that, at both interviews, Mr Monson was given an opportunity to respond to the allegations put to him. In the circumstances, he submitted, Commissioner Watling's use of the word "some", in his finding that it was not established that Mr Monson "was denied some procedural fairness, natural justice or industrial fair play", should not be given too much weight having regard to the actual process that occurred on the relevant day. While we accept Mr Cameron's submission that Section 31(1A) of the Act does not oblige us, as a matter of law, to take account of the elements of ILO Recommendation No 166, on which Mr Bronstein relied, it is nevertheless a common industrial understanding in Australia that employees involved in employer initiated termination proceedings should be accorded procedural fairness. No doubt this is the reason why Mr Cameron submitted, in the alternative, that contrary to Mr Bronstein's contention the evidence before Commissioner Watling shows that the employer did accord Mr Monson procedural fairness. In this context we note the evidence before Commissioner Watling demonstrates that, upon receiving the initial incident report, Mr Ericksen:
In addition, we observe that the evidence shows that, before dismissing Mr Monson, Mr Ericksen considered alternative employment but, because of the breakdown in the trust relationship, decided that the company "didn't have any other position for him". After reviewing the relevant materials we have formed the opinion that the evidence before Commissioner Watling, concerning the actual events and the process that occurred at the time, does not disclose any fundamental breach of procedural fairness. It is arguable, as Mr Bronstein submits, that the company should have specifically invited Mr Monson to nominate an independent person to accompany him during his two interviews with Mr Ericksen. We agree that this is a desirable process. However, on its own and without more by way of evidence pointing to a denial of "fair play", that oversight does not, in our view, vitiate the essentially fair process followed by the company on the day. Finally, we do not know, in these circumstances, why Commissioner Watling used the word "some" in the phrase "some procedural fairness" in his decision. However, we agree with Mr Cameron's submission that, having regard to the actual process that the company adopted at the time, Mr Monson was accorded procedural fairness and, on that basis, no significant weight should be placed on the Commissioner's choice of words. For all the reasons advanced above we find that, in terms of Appeal Ground 2, there were sufficient grounds before Commissioner Watling to warrant his decision to uphold the employer's termination of Mr Monson's contract of employment; that, concerning Appeal Ground 3, it was open to the Commissioner to conclude, as he in effect did, that the dispute was not trivial, Mr Monson's exemplary work record notwithstanding; and that, regarding Appeal Ground 5, Commissioner Watling did not err in finding that Mr Monson was afforded procedural fairness and natural justice. Given the above findings, we dismiss the appeal and confirm Commissioner Watling's decision.
F D Westwood Appearances: Date and Place of Hearing: 1 T6592 of 1996, Reasons for Decision 21 November 1996, p. 1. |