AWU (David Eakin) v G.J. James Extrusion Pty Ltd

LEGISLATION CITED: Industrial Relations Act 1996

Andrew Curro v Bell Sports Australia Pty Ltd [1999] NSWIRComm 281 (7 May 1999) Antonakopolous v State Bank (1999) 91 IR 385 Australian Workers' Union, NSW Branch v Colgate Palmolive Pty Ltd (1988) 27 IR 421 Bankstown City Council v Paris (unreported) IRC262 of 1999 Bigg & Anor v New South Wales Police Service (1998) 80 IR 434 Bi-Lo v Hooper (1992) 53 IR 225 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Dunn (1894) 6 R(H2) 67 Burke v McGirr (1998) 87 IR 54 Busways v Johnson (1994) 55 IR 255 Byrne & Anor v Australian Airlines (1995) 61 IR 32 D&R Commercial Pty Ltd v Flood (2002) 113 IR 344 Franklins Ltd v Webb (1996) 72 IR 257 Hill v Department of Juvenile Justice [2000] NSWIRComm 128 CASES CITED: Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Jones v Dunkell (1959) 101 CLR 298 New South Wales Fire Brigade Employees' Union (on behalf of Natoli) v New South Wales Fire Brigades NSWIRComm 440 Outboard World v Muir (1993) 51 IR 167 Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Paul Robert Taggart v Bell Sports Australia Pty Ltd [1999] NSWIRComm 408 (10 September 1999) Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Rapp v Wauchope RSL Club (1998) 81 IR 116 Sams v Contact Point International Pty Ltd (2001) NSWIRComm 18 Shop Distributive & Allied Employees' Association NSW Branch v Jewel Food Stores (1987) 22 IR 1 Tamworth City Council v Federated Municipal Employees Union of Australia, New South Wales Division (1991) 39 IR 73 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273 William John Kohlenhagen v Cargill Foods Australia [1999] NSWIRComm 107 (23 March 1999)

Mr. J Clements Australian Workers' Union of New South Wales LEGAL REPRESENTATIVES: Mr. Ban Solicitor G.J. James Extrusion Company Pty Ltd.

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

David Andrew Eakin and G.J. James Extrusion Co. Pty Ltd

Application by The Australian Workers' Union, New South Wales made on behalf of David Andrew Eakin re Unfair Dismissal pursuant to section 84 of the Industrial Relation Act 1996

[2006] NSWIRComm 1042 1 This is an application by the Australian Workers' Union New South Wales, ("the Union) made on behalf of David Andrew Eakin against G. James Extrusion Co. Pty Ltd ("the Company") for a remedy pursuant to S.84 of the Industrial Relations Act, 1996. Mr. Eakin was dismissed from his position of Production Supervisor with the Company and alleged that that took place on the 15 May 2004. The application was initially filed with the Australian Industrial Relations Commission (within time) but dismissed for want of jurisdiction on the 29 September 2004 on the basis that Mr. Eakin was not a Federal Award/Agreement employee. The application was then filed in this jurisdiction on the 11 October 2004. 2 Mr. Eakin initially sought reinstatement or alternatively, monetary compensation in lieu thereof. At the hearing he sought monetary compensation only. 3 The matter was listed for conciliation and directions before me on the 29 October 2004. However, this date was vacated at the request of the respondent as a Police investigation was pending. The matter was stood over generally with leave to re-list or file a Notice of Discontinuance. Charges against Mr. Eakin were heard in the Local Court on the 12 April 2005 and were dismissed. 4 The Union then sought to have the matter re-listed and a mention was held on 28 April 2004. Conciliation and directions were set down for the 1 June 2005. However, this date was vacated at short notice at the request of the Company due to flight difficulties from Brisbane Airport that day. Conciliation eventually took place on 14 July 2005. No settlement could be reached and directions were issued as to the filing and exchange of witness statements. The matter was subsequently set down for hearing on the 21 and 22 November 2005. 5 At the hearing Mr. Clements, an Official of the Union appeared on behalf of Mr. Eakin who also gave evidence (Exhibits 1 and 2). 6 Mr. Ban, Solicitor, appeared on behalf of the Company and called the following witnesses:- Greg Hayes - General Manager (Exhibit 5) Marcos Frassanito - Packing Supervisor (Exhibit 7) David Usher - Extrusion Manager (Exhibit 8)

BACKGROUND AND CHRONOLOGY based on the evidence filed and the transcript. 7 Mr. Eakin first commenced employment with the Company at their Brisbane Extrusion Works in 1988, eventually becoming a Team Leader in 1992. He worked for the Company (or within the Company Group) for two other extended periods of employment over the ensuing years. 8 The Company's Head Office is also located in Brisbane. 9 In early 2002 he was offered the position of Press Supervisor at the Company's Extrusion Works at Long Street, Smithfield commencing on 1st April 2002 moving to Sydney from Brisbane to take up the position. Some eight months later he was promoted to the position of Production Supervisor. 10 Mr. Eakin was responsible for the planning and running of each shift. He was required to be involved in all aspects of the operation of the plant and the manufacture of aluminium at the Smithfield works. 11 Raw material comes to the Smithfield Extrusion Works in 6 metre by 228ml logs of metal that are subsequently extruded into finished product. Scrap aluminium can result from that process in three forms: · "Butts" - leftover solid aluminium ends cut off from the logs, weighing approximately 5-8 kilo's and of 50 to 60 mls in length. Hot butts (500c) drop off the extrusion press some 3 metres into a 2 metre square steel bin. Each bin holds 80 to 90 butts. Full bins are conveyed by forklift to the bundled area. The butts are subsequently sent back to Brisbane for recycling. · "Bundles" - longer leftover lengths of extended aluminium from any defective lengths are cut into 2 metre lengths. A bundle may contain a number of such lengths and is also conveyed by forklift to the bundled area. · "Swarf" - fine shavings produced as a result of the cutting of aluminium and collected by a vacuum process.

All three forms of scrap are recycled. All three forms of scrap have to be stored separately and cannot be mixed. 12 It was not unusual for a barbeque to be held at the end of the Friday night shift or on a Friday night. Employees would contribute to the cost of the barbeque. 13 At the beginning of March 2004, an employee Steve Garnanky, sent an e-mail to Mr. Eakin in which he made allegations that Mr. Eakin was taking scrap aluminium. Mr. Eakin forwarded the e-mail onto Mr. Geoff Maloney at the Company's Head Office in Brisbane. A subsequent investigation by the Company cleared Mr. Eakin. 14 As a result of irregularities in the Company's stocktake reports the Directors came to the view that significant amounts of aluminium butts were going missing from the Smithfield site. 15 As a result the Directors instructed that control mechanisms be put into place. On 14 May 2004, Mr. Usher, then the Maintenance Supervisor, had a dummy block placed on the extrusion press. The block had been machine impressed with the words "Stolen from G. James Ph 132877". The subsequent run of logs on that shift produced butts with these words imprinted on them. 16 On 15 May 2004 Mr. Usher arrived at the site and proceeded to look for the steel bin containing the imprinted butts. He only located a bin under the conveyor with 27 imprinted butts when there should have been about 140 butts produced. The value of the missing butts was approximately $3300. 17 The extrusion press had broken down on the dayshift of 14 May (for about 12 hours). Mr. Eakin had worked the dayshift, returned home for a brief sleep period and returned to work the nightshift. He left the site at about 6.15am on Saturday 15 May. The Saturday shift was a maintenance shift. 18 There was video surveillance showing the movement of a forklift carrying a bin full of hot butts from the conveyor towards the western yard and returning and then placing an empty bin under the conveyor. Mr. Frassanito also alleged that when he was arriving at work he had seen Mr. Eakin in the western yard driving a forklift with a bin full of butts around to the back of a white pantechnicon truck in the yard and returning with an empty bin. This was done twice. Mr. Frassanito subsequently made a statement to the Police on 13 September 2004. 19 When he could not find the imprinted butts after a search of the factory, Mr. Usher contacted Mr. Hayes who instructed him to call the Police. The Police attended the site and interviewed various employees. Mr. Hayes also attended the site after the Police had left and conducted interviews. 20 Mr. Eakin was contacted later that morning by phone by Mr. Hayes and was requested to attend the Merrylands Police Station. A taped interview of Mr. Eakin was conducted by Senior Constable Lovan. Mr. Hayes was not present during that interview. 21 Mr. Hayes met subsequently with Mr. Eakin and advised him that the Company held him responsible as Supervisor for the missing aluminium. He was told he could not return to the site and was asked to surrender his mobile phone and keys to the site. 22 Mr. Eakin maintained that during the course of this conversation he was terminated by Mr. Hayes. This was denied by Mr. Hayes who said termination was by the Head Office some two weeks later after the investigation. 23 A subsequent meeting took place between Mr. Hayes and Mr. Eakin with Union Delegate Bruce Oliver at the Merrylands Police Station on 19 May 2004. 24 Mr. Eakin did not receive any termination letter but did receive an Employment Separation Certificate (Exhibit 3) signed by John Hannay, the Paymaster dated 18 May 2004. The reason for termination was ticked as "Misconduct" with the reason given of "Security Breach". 25 Mr. Eakin was not interviewed further by the Police and was summonsed to appear in Fairfield Local Court in December 2004 to answer a charge of Larceny by a Servant. The hearing subsequently took place on 12 April 2005. 26 The Magistrate dismissed the charge on the basis that he had doubts on two grounds. Firstly that Mr. Frassinato had only said he "thought it was the defendant", and yet he had known him for sixteen years and worked with him for three years. Secondly, the Magistrate considered whether given Mr. Eakin's age, with no prior record, who had led "a blameless free life" and had worked at the same place for sixteen years he would have had " a propensity " to commit the offence. 27 On 12 November 2004, the Company was advised by the Police that its request for access to the Police videotape record of the interview with Mr. Eakin (applied for in early August 2004) under the Freedom of Information Act 1989 was denied. The Evidence 28 Both Mr. Usher and Mr. Hayes made reference to an investigation of Mr. Eakin in March 2004 concerning stolen aluminium. The allegation arose in an email from a former employee Steve Garnanky. Whilst Mr. Usher said that he wasn't aware of the investigation at the time, he heard about it subsequently from Richard Axe the NSW Extrusion Manager. He indicated in his statement to Police on 13 September 2004 attached to his witness statement (Exhibit 8) that he understood the allegation was investigated by upper Management and found to be "unsubstantiated". 29 Mr. Hayes however, said that he wasn't aware of the outcome of the investigation although he agreed that the email in question had been sent to Mr. Eakin who in fact passed it on to Management. He also agreed that the employee had been disciplined by Mr. Eakin, had problems and had had a nervous breakdown. 30 Mr. Eakin deposed that Mr. Garnanky was a former employee under his Supervision. In 2003 they had an argument about his work performance and he went on stress leave. He subsequently sent Mr. Eakin some derogatory emails making allegations about him stealing aluminium which Mr. Eakin passed on to his superiors. Mr. Eakin was not made aware that he was the subject of any investigation concerning the email. 31 Further emails from Steve Garnanky making further allegations about Mr. Eakin stealing aluminium were sent to the Company on 2 May and 19 May 2004. Mr. Eakin was not made aware of these emails. They were attached to Mr. Hayes' witness statement (Exhibit 5). 32 Mr. Hayes also attached to his witness statement (Exhibit 5) two short statements from employees (not called as witnesses by either side) dated 25 May 2004 concerning Mr. Eakin being paid cash ($100) by each of them for the purchase of scrap aluminium in 6 metre lengths. This occurred mid April 2004. No receipt was issued by Mr. Eakin. Both said the aluminium hadn't been delivered and was still at the Factory with their names on. 33 Mr. Eakin was not cross-examined on these statements or his reply to them. In his witness statement in reply (Exhibit 2) he deposed that it was the practice at the factory for scrap metal to be sold to employees at the scrap price. Mr. Eakin would issue a receipt and the money would be handed to Claire, the Secretary. Anything over 3 metres was not scrap unless it was damaged material. He denied the allegations made. 34 Mr. Eakin gave evidence about the breakdown of the extrusion press on day shift of 14 May. He went home about 1.30 pm or 2.00 pm and thought that things would have been running normally when he left. He returned on night shift. 35 It was due to this breakdown on the Friday that he queried the need for Marcus Frassanito to come in early on the Saturday as there were no reports from the Friday. Material had been all packed before that. 36 Mr. Usher organised for two employees to place the impressed dummy block on the extrusion press at about 8.30 pm on the Friday night. He expected about 90-100 butts to be produced per shift. 37 Mr. Eakin said that about 15 bundles of scrap were cut up and moved during that night shift. At the end of the shift he locked away all scrap bins and loose aluminium in the shed in the bundled area. 38 He maintained that the first he knew Mr. Frassanito was on site was when Con Volonis rang him at 5.45 am to tell him that. He then rang Mr. Frassanito at about 6.00 am. 39 He denied the allegation that he had driven a forklift with a bin load of butts and loaded it onto a truck parked inside Gate 4. 40 Mr. Frassanito maintained he saw Mr. Eakin driving the forklift between 5.00 am and 5.15 am and that in that time he saw two bins of butts loaded onto a truck parked with its cab facing the building. 41 He first noticed Mr. Eakin as he drove along Long Street past Gate 4 and turned into the Factory at Gate 3. He then walked through the office and looked through into the yard and observed Mr. Eakin on the forklift. He then logged onto his computer at 5.21 am. He maintained Mr. Eakin must have seen him because he rang him at 5.22 am demanding to know what he was doing there. Mr. Eakin also invited him to the barbeque in the maintenance area. 42 Mr. Eakin was not actually asked any direct questions concerning exactly what he was doing in relation to the forklift between 5.00 am and 6.00 am. 43 He was however, taken to his witness statement where he indicated he had responsibility for locking everything away at the end of the shift. He said that because they were at the tail end of the shift the bin was overflowing, with butts still coming down. They locked this straight away in the shed. There were still butts coming down and they knocked off early at about 6.10 - 6.15 a.m. because the next shift was a maintenance shift 44 He said that normally it was the responsibility of the forklift driver to move the bins but at the end of the lock up shift it was the Supervisor's responsibility. There was no checking off of numbers of bins when they were locked away and first thing on a Monday morning the forklift driver took them out again. 45 Attached to his witness statement (Exhibit 1) was an "Extract (Adjudication of Magistrate)" before Magistrate B Maloney in Fairfield Local Court on 12 April 2005 in Police V David Andrew Eakin. 46 In that Extract in summarising the evidence His Honour referred to the "electronically recorded interview" between Sergeant Lovan and Mr. Eakin at Merrylands Police Station on Saturday 15 May 2004 that interview detailed that David Eakin, on being questioned about the video surveillance footage from the factory of the movement of a forklift at 5.27 - 5.33 a.m., acknowledged that he had driven a forklift with a bin load of butts at that time but maintained that he had taken the loaded bin into the bundled area and then returned the forklift inside the factory. 47 Mr. Hayes conducted various interviews with employees on site later that morning and drew up a "Chronology" and summary of what essentially each person told him. He had two versions, one in absolute time order and one a summary of what information came from each employee (listed employee by employee). 48 Mr. Hayes' time summary of events contained some conflicting times put forward by employees in relation to when Mr. Eakin was at the barbeque (e.g. Phil Burrell & Con Volonis) when compared to Mr. Eakin's evidence that he went to the barbeque about 5.45 a.m. and conflict also with that of Mr. Frassanito's evidence. 49 Whilst at the barbeque Mr. Eakin made a phone call and had the extrusion press stopped at 6.15 am - 6.20 am. This was to enable finishing up before the maintenance shift started. 50 When Mr. Usher arrived at the site at about 6.10 am he went to look for a bin with impressed hot butts but couldn't find one. All he found was a bin under the conveyor containing about 27 impressed butts. He estimated that it would have taken about 45 minutes to produce that number of butts. He maintained there should have been about 140 impressed butts. However in his statement to Police (13 September) attached to his witness statement he maintained that 270 butts in total were missing including 130 butts (not impressed) produced on the shift between 12.00 p.m. and 6.30 a.m. However, this doesn't accord with his witness statement and oral evidence that the dummy block was placed on the extrusion press at 8.30 p.m. and therefore impressed butts were produced from that time. There doesn't appear to be any evidence that unmarked butts were able to be produced after 8.30 p.m. (only on the shift beforehand). 51 Mr. Usher then sought the assistance of other employees including Mr. Frassanito to search the factory premises for the missing bin. He could not say why he did not contact Mr. Eakin at all. 52 It was the evidence of Mr. Usher and Mr. Frassanito that essentially empty bins were found at various locations in the factory and the yard. Only 18 bins were found and Mr. Usher maintained there should have been 20 G. J. James bins (the type used to store butts). 53 At some stage Mr. Frassanito told Mr. Usher he had seen David Eakin driving the forklift and loading a bin of butts onto the back of a truck. 54 What isn't clear is whether Mr. Frassanito told Mr. Usher he saw Mr. Eakin loading two bins onto the truck and whether he relayed this information before or after it was ascertained two bins were missing. 55 Mr. Eakin disputed that there were exactly 20 bins on the site at all times. He maintained he wasn't aware of how many G J James bins there were due to their movement around the site. 56 In addition he maintained that because of a dispute with Metalcorp over the scrap recycling contract he had had to use G J James bins to store swarf in. Those bins were then taken off site by Metalcorp. 57 Mr. Eakin said that on the Friday, 14 May at lunchtime, Metalcorp had picked up three bins of scrap. He had written a receipt and given it to the office. 58 Mr. Usher disputed that the butt bins could be used to store swarf as they had drainage holes in the bottom. However, he was not fully aware of what the process and practices had been in place in relation to the extrusion side as he had been Maintenance Supervisor at the time - he was now the Extrusion Manager replacing Mr. Axe. 59 Mr. Usher did say that in the course of the search they found three Metalcorp containers in the shed. Two of them had butts (not impressed) on the top of the containers. He had no idea what was under the butts. 60 There was no evidence before the Commission as to the size or capacity of the Metalcorp containers as compared to the G J James steel bins. Although it seems clear hot butts could not have been placed in a Metalcorp bin only cold butts. 61 Mr. Hayes was questioned about a table "Scrap Deliveries from Sydney Press" (Exhibit 6) which set out monthly figures from July 03 to June 04. Four types of scrap including swarf were detailed as being sent to Metalcorp with totals in weight, value and price per kilo shown. Also shown were the totals sent to Brisbane for recycling each month (the butts). 62 Mr. Eakin had not been shown this exhibit or questioned on its information. 63 Mr. Hayes was asked in cross-examination whether it had been the practice of the office to effectively hold over showing small amounts of scrap until the next month's figures. Mr. Hayes did not know as he was not familiar with the practices followed by the Smithfield office. 64 Exhibit 6 however, indicated that no scrap at all (of any type) was recorded as being sent to Metalcorp in the months of January, February, May and June of 2004. In March and April of 2004 the only figures that were shown as going to Metalcorp were for "scrap soft alloy". There was no evidence as to any other alternative location or company that scrap was sent to. 65 At about 7.30 am, Mr. Usher and Mr. Frassanito watched the video surveillance record at the factory which showed a forklift picking up a bin of butts from under the conveyor. The bin was overloaded with 2 or 3 butts falling off. The forklift then conveyed the bin to around the back of the factory and towards the western yard. It was not possible to identify from the video who was driving the forklift. The video recorded the pickup and driving to the western yard as at 5.27 a.m. The forklift returned at 5.33 a.m. empty and it proceeded to the conveyor area and it placed an empty bin under the conveyor. 67 Mr. Frassanito said this accorded with when he had seen Mr. Eakin driving the forklift and loading the truck. 68 Mr. Hayes also viewed the video later that morning with Mr. Usher. 69 It would appear from the evidence that the video surveillance did not extend into the western yard nor did it cover the bundled area. The video surveillance was not available for the Commission to view. 70 Mr. Frassanito said he did not tell the Police about seeing David Eakin driving the forklift when they spoke to him later that morning. He also maintained the Police did not ask him about David Eakin. 71 Mr. Usher passed that information onto the Police and also maintained he heard the Police asking Mr. Frassanito about David Eakin but "he clambered up" - he was afraid to tell the Police about David Eakin as he was frightened of him. However, later in cross-examination, he said he could not hear what the Police said to Mr. Frassanito. 72 Mr. Frassanito also said he was afraid of Mr. Eakin and that he was a bully and he was concerned that Richard Axe was away at the time. He was not entirely prepared to concede that if he did have concerns about David Eakin then telling the Police would have been his best protection. 73 Mr. Usher also said that Mr. Frassanito told Mr. Hayes about Mr. Eakin driving the forklift and loading the truck. This was denied by both Mr. Frassanito and Mr. Hayes. It was also not listed in the information conveyed by Mr. Frassanito in Mr. Hayes Chronology tables. 74 Both Mr. Usher and Mr. Frassanito made subsequent statements to the Police on 13 September 2004. Both statements were attached to their respective witness statements (Exhibits 8 and 7). 75 In Mr. Usher's statement to Police he referred to Mr. Frassanito telling him that he had seen who had taken the butts but gave no further detail. 76 In Mr. Frassanito's statement to Police, he said he saw David Eakin at about 5.15 a.m. driving the forklift and loading the truck with the bin of butts as he was driving his car past Gate 4 to come to work and when he walked through the office to look through Door 4B, he said he also saw him "a short time later return to the pantec truck carrying another steel bin full of aluminium butts". He then logged onto the computer at 5.21 a.m. 77 Mr. Frassanito had also attached to his witness statement his contemporaneous notes which he said he made on 15 May 2004. In those notes he related that when he walked through the office he looked through Door 4B to "confirm it was David Eakin" and "he was loading with fork truck steel bins of butts into the back of the truck". 78 Mr. Frassanito also gave evidence in his statements that Mrs. Eakin had rung him later that day to ask him to ring Andrew Dinning and tell him not to phone or text Mr. Eakin as they were in a little bit of trouble. Mr. Frassanito rang Mr. Usher to ask him what to do and he was told to make the call and pass on the message which he did. Andrew Dinning told him that Mr. Eakin always rang him on Saturdays about the footy. 79 Mr. Eakin gave evidence about being involved in his son's football team as a Coach on Saturday mornings. 80 Mr. Eakin attended the Merrylands Police Station at Mr. Hayes request who told him some aluminium had been stolen from his shift. Prior to the interview he had no idea what was missing. He was interviewed by Senior Constable Lovan for approximately an hour. 81 During the course of the interview he was told aluminium butts had been stolen and questioned as to his whereabouts on the shift. He told the Police he did not steal the butts. He was told "we do suspect you". 82 Mr. Eakin was not charged but was subsequently summonsed to appear in Fairfield Local Court (December 2004). There was no further interview of Mr. Eakin. 83 Mr. Hayes was at the Police Station during the interview and said that at one stage Detective Constable Lovan came out and had brief discussions with him (about 10 minutes) and told him what he thought of events and they discussed how they should proceed from there. 84 Mr. Hayes agreed that he had not read the Police transcript of interview and did not know what the Police said to Mr. Eakin. 85 Following the Police interview it was Mr. Eakin's evidence that Mr. Hayes told him that due to the fact that he was Shift Supervisor he held him "solely responsible". In his opinion he thought he was guilty. Mr. Hayes asked him for his mobile phone and his keys. He was told he was no longer welcome on site and that his employment with G J James was finished. Mr. Eakin only had his mobile on him not his keys. He denied saying either directly or indirectly that "give him 4 months pay and he would tell him the real story". He agreed that during the conversation he said there was more he could tell them but wouldn't. He suspected a previous employee. 86 Mr. Hayes denied that he terminated Mr. Eakin but did confirm that he told Mr. Eakin they were holding him responsible for the metal going missing and they wanted his keys etc. back. He was told he wasn't welcome back at the site until they'd had the chance to fully investigate the matter. 87 Mr. Hayes conducted his investigation over the next two weeks and reported to the Directors of the Company by phone and also sent them what documentation he had. He said Mr. Eakin was terminated at that stage by the Board of Directors. He found out at the end of the month. He didn't know whether there had been a termination letter. He also did not know who had instructed Mr. Hannay to issue an Employment Separation Certificate on 18 May 2004. 88 Mr. Hayes said they contacted the Union on Monday 17 May and a Mr. Ted Mitchell came out to the site. 89 Mr. Eakin was contacted by the site delegate Bruce Oliver. Mr. Eakin told him he had nothing to do with the stolen aluminium and was sacked because he was the Site Supervisor. Mr. Oliver told him he'd get in touch with Ted Mitchell, it was unfair and he had an unfair dismissal claim. 90 Mr. Eakin contacted Mr. Hayes to organise a further meeting on 19 May to hear again why he'd sacked him. The meeting was moved to the neutral ground of Merrylands Police Station at Mr. Hayes request, who had someone else from the Company with him. Mr. Eakin attended with the Union delegate, however, Mr. Oliver was already at the Police Station with Mr. Hayes when he arrived and he didn't get the chance to speak to him before the meeting. 91 Mr. Eakin maintained that he asked Mr. Hayes if there was a chance he could be re-instated and was told no. He asked why he'd been sacked and was again told he was held responsible as Shift Supervisor and was thought to be guilty. Mr. Eakin said words to the effect of "if you are so sure that I stole the aluminium why don't the Police come in here now and charge me?" He was told they did not have enough evidence. 92 Mr. Hayes' version of the conversation was that Mr. Eakin was given an opportunity to respond to the various allegations but gave no explanation. He was mainly concerned with whether he would be charged by the Police? Mr. Hayes also maintained that Mr. Eakin said when they first sat down "well do you think you've got me?". To which Mr. Hayes said "Yes". Then Mr. Eakin queried why the Police hadn't charged him and Mr. Hayes said something along the lines of "the Police would do whatever they wanted to do". Mr. Hayes agreed it was a strange thing for Mr. Eakin to say in the circumstances. 93 Mr. Hayes said Mr. Eakin asked if he was going to get his job back but he gave no commitment as to that. Mr. Hayes also did not consider that Mr. Eakin had "directly" protested his innocence all along. 94 Mr. Hayes was also taken, in some detail, to the monthly Stock Usage - Sydney Reconciliation Tables for the period July 03 to May 05 as attached to his witness statement. He explained the information on the table and, was specifically questioned on the reported discrepancies which for various months after May 2004 which were of a similar order as to what was shown for April 2004. There was no discrepancy shown for May 2004. Other irregularities in various figures where also canvassed with him. SUBMISSIONS 95 Mr. Clements relied on Wang & ors v Crestell Industries Pty Ltd & anor (1997) 73 IR 454 (at 463) for the well established authority that in cases of summary termination for misconduct the evidentiary onus shifted to the employer. Further, in such cases the standard of proof as relied on in Wang v Crestell was the civil test enunciated in Briginshaw v Briginshaw (1938) 60 CLR 337 (at p.362). That relied on a consideration of reasonable satisfaction defined by Dixon CJ as follows: "In such matters reasonable satisfaction should not be produced by incorrect proofs, indefinite testimony or indirect references". 96 Mr. Clements also relied on Shop Distributive & Allied Employees' Association New South Wales Branch v Jewel Food Stores (1987) 22 IR 1 (at p.2) which held that "in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out". 97 Reliance was also relied on Franklins v Webb (1996) 72 IR 257 which stated the principles as to onus as enunciated in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (no 3) (1990) 35 IR 70 and applied Jewel Food Stores. 98 In such dismissals for misconduct an employee was entitled to both substantive and procedural fairness as set out in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 225 (at p.229) a decision of the Full Bench of the South Australian Industrial Commission. 99 Mr. Clements submitted that the employer did not satisfy the tests enunciated in those cases. 100 Mr. Eakin was dismissed on 15 May 2004. His evidence was backed up by David Usher's initial statement on that issue and although that was subsequently retracted, the Commission should give serious consideration to which version was accepted. Mr. Hayes' evidence that although he completed the investigation, no-one told him Mr. Eakin had been sacked and maybe a Director dismissed him, simply did not make sense. 101 David Eakin was never interviewed by the Company. They never put any allegations to him and he never had a chance to respond. Whilst the Police interviewed him, the Company had no idea what the Police asked him. 102 At the meeting of 19 May, a meeting organised by Mr. Eakin, he was told the Police or Mr. Hayes thought he was guilty and that was the end of it. No particular allegations were put on anyone's evidence. Mr. Eakin had no idea why it was thought he was guilty. 103 The investigation was carried out after he was sacked. The emails were never put to him except the one he forwarded to the Company. The Frassanito allegations were never put to him. They would not have been put because on the evidence of Mr. Hayes and Mr. Frassanito the Police didn't have those allegations before them to put to him. 104 The irregularities in accounting were never put to Mr. Eakin nor were the two subsequent statements by employees concerning selling of scrap metal. 105 Mr. Clements relied on Tamworth City Council v Federated Municipal and Shire Council Employees Union of Australia, NSW Division (1991) 39 IR 73 (at p.79) on the issue of ex post facto rationalisation where subsequent allegations were not put to an employee. 106 Mr. Clements submitted, that as was found in that case, it was open to the Commission to find that Mr. Eakin was unfairly treated and harshly treated. Mr. Clements conceded that it was open to the Commission to find on the evidence before it that Mr. Eakin was guilty of the allegations. 107 It was also conceded that although the Magistrate acquitted Mr. Eakin of the charges laid that that was not an end of the matter per Australian Workers Union, NSW Branch v Colgate Palmolive Pty Ltd (1998) 27 IR 421 which dealt with a matter where charges had been dismissed by a Magistrate. It was held the conclusion of the Magistrate couldn't determine the event in Commission proceedings. However, it was also held that "notwithstanding the different onus of proof it is clear that if the decision of the Magistrate is soundly based, it is a factor which would throw considerable doubt on the decision under appeal". 108 The Commission was taken to the Magistrate's decision (as attached to Exhibit 1). It was also pointed out that the Commission had less evidence before it, as the Magistrate had the evidence of the video footage. 109 Mr. Clements summarised the evidence in relation to the bins given by Mr. Eakin and Mr. Usher and the discrepancies between the two. It was pointed out that that had not been Mr. Ushers' section. In relation to the number of butts missing no production log had been produced. 110 Mr. Clements also raised the issue that Exhibit 6 concerning scrap disposition had not been put to Mr. Eakin raising a Brown v Dunn issue. 111 In relation to bins missing, that did not go to prove that Mr. Eakin was guilty. It could have been any employee. Forty people had access to keys and could have taken the aluminium. 112 In cross-examination of Mr. Hayes on the stock irregularities, he agreed the figures weren't accurate and irregularities weren't worse. Those figures also were not put to Mr. Eakin. 113 The emails and subsequent statements from the two employees were not relevant. They were hearsay. The authors were not called to give evidence. They were never put to Mr. Eakin during the course of the investigation. 114 The video footage also not been produced and was not before the Commission, only Mr. Hayes' notes, the Magistrate's decision and reference to questions put to Mr. Eakin and the evidence of Mr. Usher. 115 The failure of the Company to produce the video evidence raised a Jones v Dunkel issue that had the evidence been called it would not have helped the respondent's case. 116 The only evidence before the Commission was that of Mr. Frassanito. The video evidence clearly contradicted that. There was no proof that Mr. Eakin was on the forklift. A butt bin was taken away, put somewhere and that was the way it would go to the bundled area. 117 In addition, Mr. Frassanito told the Magistrate "he thought" it was Mr. Eakin. He was untruthful to the Magistrate but was truthful here - what was Mr. Frassanito up to? Why did he wait four months to tell the Police about it without being able to give a reason. This cast doubt on Mr. Frassanito's evidence as to veracity and reliability. What evidence he gave to the Magistrate should be the evidence believed. 118 Mr. Clements applied the "reasonable satisfaction" test in Briginshaw v Briginshaw to Mr. Frassanito's evidence to establish that all that was before the Commission was inexact proofs. 119 The relevant provisions of S88 were briefly addressed. 120 It was submitted that Mr. Eakin was unfairly dismissed, given no opportunity to respond, no procedural fairness and there was no investigation. The respondent had not discharged the onus on it to satisfy the Commission Mr. Eakin was guilty as accused nor did the evidence before the Commission establish that. 121 Mr. Eakin sought the maximum amount of compensation available. If the Commission found that the dismissal of Mr. Eakin was unfair then he was a class of employee who should be awarded the maximum. This was based on his length of service and his good record substantiated by his progress from a process worker through promotions to the position he finally held. It was an "extraordinary rise" from the shop floor. 122 This history was very relevant when considering his treatment by the Company which Mr. Clements characterised as "disgraceful and despicable". No-one could even say who sacked him or when. He was given no letter of termination. 123 He also needed to be compensated for the fact that he would never be able to work in the industry with his skills and knowledge. 124 Mr. Ban, for the Company, relied on the following cases: Andrew Curro v Bell Sports Australia Pty Ltd (1999) NSWIRComm 281 (7 May 1999) Paul Robert Taggart v Bell Sports Australia Pty Ltd (1999) NSWIRComm 408 (10 September 1999) William John Kohlhagen v Cargill Foods, Australia (1999) NSWIRComm 107 (23 March 1999) 125 Taggart v Bell Sports cited the same cases relied on by Mr. Clements in relation to the tests to be applied in this matter. 126 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd (2003) NSWIRComm 311 was relied on in relation to the quantum of compensation to be awarded where the Commission found for the applicant but where there were significant delays before a final decision. In that matter only half the maximum was awarded. Mr. Ban drew the Commission's attention to the delays in this matter from firstly the matter being filed in the Australian Industrial Relations Commission and secondly the proceedings in the Local Court. For these reasons if the Commission was minded to award compensation it should not be the maximum. 127 Mr. Ban queried the relevance of the relationship between the wives of Mr. Eakin and Mr. Frassanito raised in by Mr. Clements in cross examination of Mr. Frassanito. 128 The emails were in evidence and an assumption of mental illness made by Mr. Clement of the author. This was challenged.

129 Mr. Ban summarised the events of 14 and 15 May 2004 and pointed out that there was restricted knowledge of the attachment of the imprint on the press but took the point that anyone could have noticed it. Mr. Eakin was in control of the shift as Press Supervisor.

130 There was evidence about the barbeque between 5.00 am and 6.00 am and whilst Mr. Ban was not suggesting that the barbeque was put on as a distraction it was at least "convenient timing" for someone to get up to some business at the western end of the yard when the rest of the staff were distracted.

131 Mr. Ban summarised the evidence of Mr. Frassanito and Mr. Usher concerning firstly the sighting of the loading of the truck, the search for the missing hot butts, and the intrinsic nature of the missing hot butts that set them apart from other butts.

132 During the Police investigation at the site David Usher told Senior Constable Lovan that Marcus Frassanito had seen David Eakin driving a forklift and loading the truck. He did agree in cross examination that he did not hear what was said between Mr. Frassanito and the Police and Mr. Frassanito's evidence was he didn't tell them.

133 Why he didn't tell them was a good question. Mr. Frassanito said he was scared of Mr. Eakin and of reprisals or retaliation. He was asked if he was scared of violence or trouble and replied "violence is trouble".

134 Mr. Eakin agreed that during his later Police interview, the Police did put a direct allegation to him about stealing aluminium.

135 The Commission was taken to the Local Court decision (Exhibit 1) and the references to the interview transcript where questions were asked about the closed circuit TV - the context was the butts and the aluminium that was stolen. It was indicated to Mr. Hayes by Detective Constable Lovan that Mr. Eakin was guilty or possibly guilty of stealing the aluminium.

136 Mr. Hayes then met with Mr. Eakin and "released" him from his duties (Usher evidence). He was a salaried member of staff in a responsible position organising staff, where they went, what times they worked, and particularly for the relevant times around the barbeque (and indeed who went to the barbeque).

137 Mr. Ban summarised the exchange between Mr. Eakin and Mr. Hayes on 19 May. Mr. Eakin's evidence in cross-examination was that Mr. Hayes told him he thought he was guilty of the theft of aluminium.

138 Mr. Ban conceded that it was unclear when the final notification of termination occurred and that there didn't appear to be a letter of termination. John Hannay wasn't here and there was no way of knowing whether he prepared the Employment Separation Certificate on 18 May summarising that all this was going to happen.

139 Where did 600-700 kilos of hot aluminium butts disappear to between 5.30 am and 6.10 am, which was when David Usher went checking on the butts? It was Mr. Eakin's evidence that he was responsible for locking away the butts at the end of the shift. He said he did lock them away that's why they couldn't be seen. That required a forklift and the keys and by his own evidence he moved the butts. That coincided with Mr. Frassanito's evidence about sighting Mr. Eakin loading the truck. It was not disputed that the video evidence showed Mr. Eakin taking the butts from the collection point and driving them around to the side of the yard somewhere. There were issues raised as to the accuracy of the timing as to the sighting between 5.15 am and 5.21 am by Mr. Frassanito. The accuracy of his computer had not been raised.

140 Mr. Ban submitted the simple question to be answered was, where did the hot stamped butts go? If they were locked away they should have still been there. If they were stolen via the outside gate someone had to have keys and use a G J James forklift to load the truck. The possibility of this happening after Mr. Eakin locked the shed was impossible and highly improbable.

141 A serious allegation had been made that Mr. Frassanito had lied under oath in the Local Court proceedings. This had been explained as Mr. Frassanito being nervous and scared. Saying "he thought" he saw Mr. Eakin led to the Magistrate having doubt. That was a jurisdiction where the burden of proof was beyond reasonable doubt unlike this jurisdiction.

142 Mr. Ban referred to the various authorities cited by Mr. Clement on the standard of proof required in this matter reiterating the principle enunciated in Briginshaw v Briginshaw and reminded the Commission that the less onerous standard of balance of probabilities applied.

143 In reference to the provisions of s. 88 Mr. Ban submitted that it disclosed no requirement that the reason for dismissal must be given by the employer. The section is silent on who must give the reason. The allegation had to be put to the employee for compliance with strict procedural fairness.

144 According to Mr. Eakin's evidence he was asked whether he stole the aluminium in the Police interview. It was also his evidence that Mr. Hayes said he thought he was guilty, with Mr. Eakin saying it referred to the theft of the aluminium.

145 Mr. Ban submitted that on the balance of probability, Mr. Eakin was guilty. Procedural fairness was carried out or in the alternative, the allegation and gravity of the allegation far outweighed any perceived alleged procedural deficiencies.

146 It was conceded that some of the cases cited by Mr. Clement were not in dispute, they mainly went to procedural deficiencies and principles to be applied.

147 What must not be lost sight of was where 113 butts weighing between 5 and 8 kilos disappear to. The evidence was they disappeared between 5.15 am and 5.30 am. A balance of probabilities test only was required. The overwhelming evidence pointed to the butts going missing at that time and that Mr. Eakin stole the aluminium and was in control of the distraction, or at least of other parties. He was also in control of the factory. There was no other plausible explanation.

148 Mr. Ban did not agree totally with Mr. Clements' submission that Mr. Eakin had stuck to his evidence. He agreed he hadn't contradicted himself. However, he submitted that gave some alternatives that were completely implausible.

149 It was submitted that the employer had discharged the onus to prove that Mr. Eakin had stolen the aluminium. That had been done on the balance of probabilities.

150 On the issue of remedy, it was noted that re-instatement was no longer sought, only the maximum amount of compensation available. It was the Company's submission that the Commission would not be able to find for Mr. Eakin on the balance of probabilities.

151 However, it was pointed out that there were considerable delays in this matter. Firstly, arising from the Police investigation. That was a matter out of the Company's hands. That ongoing investigation also precluded the Company doing other things. There was the delay arising from the Local Court proceedings. There was also the delay in the initial filing of the application in the Australian Industrial Relations Commission. Due to those delays and relying on Humphries v Cootamundra Ex-Services Club Citizens Memorial Club, any award by the Commission should be near the minimum.

152 Mr. Clements, in reply submitted that the relevance of the relationship between the wives of Mr. Frassanito and Mr. Eakin was that it raised the issue of the credibility of Mr. Frassanito's evidence.

153 It was submitted that the butts could have gone missing any time between 8.30 pm Friday, when the stamp was put on and until the shift ended.

154 Mr. Eakin didn't put on the barbeque, the reference to "I", in his witness statement, could be attributed to the fact that some one else typed the statement. It was never put to Mr. Eakin that he put on the barbeque to distract people and Mr. Ban was not entitled to make submissions on something not part of the evidence. Neither was it put to Mr. Eakin that he was caught off guard or surprised by Mr. Frassanito being at work.

155 Mr. Clements raised the issue of why Mr. Usher called for witnesses to the fact that there were 27 hot butts in the bin under the conveyor, yet agreed in cross-examination that that would not have been unusual in the circumstances (empty bin placement, remaining time on the shift).

156 There was no evidence that the times of the computer or video were incorrect.

157 As to the allegation put to Mr. Eakin by the Police - he worked in an aluminium factory and was asked if he stole aluminium. That was a very general question. Why did the Police not question Mr. Frassanito given the allegations he'd made against Mr. Eakin? The probable conclusion was that they didn't know of those allegations.

158 It was submitted by the Company that Mr. Eakin was suspended on the Saturday by Mr. Hayes. There was no common law right to suspend. That had to be covered by an award or agreement and there was no award or agreement pointed to.

159 The allegation that Mr. Eakin said to Mr. Hayes on the 19 May "Do you think you've got me" was never put to him nor was it in Mr. Hayes affidavit and he did not have a chance therefore to respond to that.

160 The submission concerning Mr. Hannay was an invention and not supported by the evidence.

161 Mr. Clements said there was confusion about how many butts were produced and missing but applying the time of the shift and that 27 butts could be produced in 45 minutes came up with a calculation of 320 times 27 giving 8660 butts (as stated in the transcript).

162 There was no evidence of a log stocktake. If there were that many butts missing why did the video show only one bin movement.

163 In relation to the video evidence, Mr. Clements submitted it was rejected that Mr. Eakin had control of the forklift and the keys to it all night. Further, Mr. Eakin hadn't admitted that he drove the forklift as shown in the video. We don't know who was driving it. There was no evidence it was Mr. Eakin. It could have been a series of employees. Mr. Eakin said in his affidavit in reply, he locked the door of the shed the bins had been stolen from. Others had access to the key.

164 There were numerous employees that could have stolen the butts and no time frame of this at all. It was not put to Mr. Eakin that he planned the whole thing, had the forklift all night and distracted staff. It was strongly in dispute that he was either the only person using the forklift or was the person using the forklift.

165 There were butts missing, where they were was unknown and if we don't know where they are then it must have been Mr. Eakin. That wasn't evidence, that was a question.

166 The onus was on the Company to prove on the balance of probabilities that Mr. Eakin stole the aluminium. Instead of proof only questions were put which put Mr. Clements in the position of having to disprove them. That wasn't the test. There was simply no evidence.

167 Mr. Clements also submitted that the issue of S.88 not specifying that reasons to be given had to be by an employer could not be relied on. The case cited by Mr. Ban was not relevant as the facts were different in that the employer participated in the Police Interview which Mr. Hayes did not.

168 The main evidence was the video. No explanations had been given for not producing the video, raising a Jones v Dunkel inference.

169 The only other evidence was that of Mr. Frassanito who had no explanation for why it took four months for him to give his statement. Mr. Frassanito wasn't being accused of anything but the question remained why he only said "he thought" he saw Mr. Eakin in the Local Court proceedings but was definite before this Commission.

170 On the issue of the 26 weeks that was supported by the way Mr. Eakin was treated, the gravity of the conduct and the consequences for Mr. Eakin and the fact that he won't be able to work in that area again and his length of service.

CONSIDERATION 171 I have carefully considered the evidence and submissions in this matter. Given the conflicts in evidence (some of which are cavernous) that has involved of necessity an even more careful and thorough consideration of the transcript than is my usual practice. However, I have endeavoured to summarise the evidence and my conclusions in a briefer form than is usual in the interests of issuing a decision as expeditiously as possible. 172 Both Mr. Clements and Mr. Ban correctly cite the appropriate authorities that establish firstly that the onus is on the respondent to establish misconduct warranting summary dismissal and secondly the standard of proof required in this jurisdiction in such matters.

173 It is appropriate to re-state the citation from Wang & Ors v Crestell relied on by Mr. Clements before proceeding further: " The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer was guilty and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299".

174 The Full Bench went on to observe:- "that the evidence in a reinstatement case involving criminal activity may well establish that the employee was guilty of conduct which, whilst falling short of criminal conduct, nevertheless constitutes serious and wilful misconduct justifying dismissal and refusal of reinstatement". 175 I should say at the outset that in applying the principles enunciated in Wang v Crestell and Briginshaw v Briginshaw the only positive finding I can make is that a quantity of approximately 113 hot aluminium butts disappeared from the Smithfield premises of G.J. James on Saturday 15 May 2005.

176 I cannot find, applying the requisite tests, that I am satisfied that Mr. Eakin is responsible for the disappearance of those butts.

177 I am satisfied that after careful consideration of the evidence, that approximately at least 113 hot impressed butts went missing. Production of the impressed butts commenced after the dummy block was placed on the extrusion press at 8.30 p.m. on Friday night. That would have meant two hours of afternoon shift remaining. Night shift, on the evidence, finished around 6.10 a.m. - 6.15 a.m. (there was some little variation in the times given concerning instructing the press to stop and the press stopping). There were 27 butts remaining in the bin which had been placed under the conveyor at around 5.33 a.m. Mr. Usher calculated that 27 butts in 45 minutes was reasonably accurate. The evidence as to the total number of butts produced in a normal shift ranged from 80-90 to 100. There was no accurate and specific documentary log information in evidence as to the precise number produced in that 8.30 p.m. to 6.15 am time span. (splitting the difference in relation to the finishing time) on the days in question. The video surveillance evidence indicated that the bin of hot butts was overloaded with two or three butts (at the least) falling off.

178 Certainly applying Mr. Ushers' maths (27 in 45 minutes) by the number of 45 minute periods available in an eight hour shift (approximately 10 2/3), one would then get a total for the 9 ¾ hour period in question of some 13 such periods and if 27 butts were produced each 45 minutes then a total of 351 butts would have been produced. Mr. Clements clearly applied the wrong multipliers in his calculation to get a figure of 8660 (or else the transcript is in error).

179 A total figure of 324 (having subtracted the 27 left in the bin at 6.15 a.m.) does however seem excessive and would suggest more than a range of 80-100 butts were produced each shift. I also note the total number of butts Mr. Usher tried to suggest were missing (including butts not impressed) in his statement to the Police yet he acknowledged in cross examination that cold unmarked butts were found in two Metalcorp bins in the shed.

180 There are a number of frustrating gaps in the evidence in this matter.

181 Frustratingly, there is no precise evidence as to exactly how many butts were produced, how many went missing or indeed what was the capacity of the steel G J James storage bins when full, let alone when over-loaded as suggested by the video surveillance evidence (butts falling off as the forklift moved the bin).

182 Frustratingly, the video evidence was also not before the Commission to enable more sense and understanding to be made of the evidence.

183 In Wang v Crestell, it was held that it was appropriate for the Commissioner at first instance to re-examine all the evidence notwithstanding that the charges against Mr. Wang were dismissed in the Local Court. Unfortunately, in this matter, I did not have the benefit of all the evidence that was before the Local Court concerning Mr. Eakin.

184 There was no challenge to the times witnesses said were shown automatically on the video and no evidence that the voracity of those times had ever been challenged or indeed checked during the course of the investigation.

185 On the basis of the evidence of those who saw the video (Usher, Frassanito and Hayes - it is unclear whether the Police actually viewed the video) only one movement of a bin with butts from under the conveyor by forklift is recorded during the entire period in question and that is at 5.27 a.m. and returning with no bin at 5.33 a.m. but then placing an empty bin under the conveyor.

186 On the available evidence, the identity of the driver cannot be ascertained from the video. Mr. Clements submitted that the identity of the driver is unknown and that more than one driver could have been involved. Whilst more than one driver could have been involved Mr. Clements is clearly wrong in submitting that there was no proof Mr. Eakin was driving the forklift.

187 There was no questioning by either side of Mr. Eakin about just where he was and precisely what he was doing between 5.00 a.m. and 5.30 a.m. Neither was he precisely questioned as to whether he was in fact the person seen driving the forklift on the video.

188 It was Mr. Eakin's general evidence that as Shift Supervisor it was his responsibility to put the last bin of butts away and lock the shed. On this shift he gave general answers to the effect of the bin being overflowing and needing to be put away and the press stopping before the maintenance shift was due to start.

189 However, Mr. Eakin did attach to his witness statement the Magistrate's decision in the matter and therefore that is part of his evidence. He did not seek to retract any part of it in his statement. Contrary to Mr. Clements submissions in his summing up, the Magistrate makes reference to the Police taped record of the interview which was in evidence before the Court (based on what the Magistrate said). It is apparent from the Magistrate's summary of that interview that there were blanks and gaps in the transcript and inaudible responses, which he notes. However Mr. Eakin was asked questions about how many times he would have moved the bin which was recorded as follows: "The bin - the full bin was" inaudible "And what time was that?" "5.30 inaudible". "Where did you put that bin full of butts?", "Inside". "Whereabouts?", "That's opposite the western side of the factory". "Is that near the main entrance where the gate is?", "No, no, no, it's the - mate you've got the building, you've got one, two, three, four gates all right. First gate you have got building 1, building 2, building 3, and we're in building 4". "Right, you're in building 4?", "Yeah". "All right so in building 4 where did you put the bin full of butts?", "Inside". "In building 4?". "Yeah". "And where placed it, is it near a gate at all, a main gate that could be opened?", "No it's all locked up". "And so how far from where you-- 190 Mr. Eakin then indicated he had had "a cuppa" with Marcus. He was asked if he was aware the butts had "G J James Phone 132877" on but he indicated he thought it was only a logo of "G J James".

I interpose here that there appears to have been no mention that the words "stolen from" were also part of the imprint. Mr. Eakin again confirmed he had moved a bin of butts at 5.30 a.m. When asked what he could tell them of the fact that the bin could not be located he said: "Went straight in the door with - as you walk in the bundle area you would have had (blank) there about you, all your scrap there, scrap metal there, and your last bundle was just put right in the middle with the bin".

When asked if he left the bin there he said: "Yeah, but I brought the forklift inside and that's where I left it".

Mr. Eakin was also asked questions about whether he knew anyone with a "white colour pantech truck". He said he didn't and queried which ones were pantechs. It appears he was only asked questions about whether he knew of such a truck or saw the truck not whether he was loading bins into the truck.

191 All of this evidence together (and not retracted) clearly has Mr. Eakin driving at 5.27 a.m. the overflowing bin of hot butts from the conveyor towards the western yard, contrary to Mr. Clements' submissions. The video does not show where the forklift went after that. It is not apparent from the evidence (and no direct questions were asked) whether it was then possible for Mr. Eakin to proceed into the factory and place the bin in the shed, which was his evidence. He then said he left the forklift in the factory and on his evidence it would appear someone else took it back to the conveyor and picked up an empty bin and left it under the conveyor.

192 It was Mr. Eakin's evidence (and also part of the Police interview) that he was not the only person with keys to the gate. What isn't known is whether he was the only person with keys to the shed where the bundles were kept.

193 All of this evidence conflicts with Marcus Frassanito's account of seeing Mr. Eakin (as he drives in to work) using a forklift to load a bin of butts not once but twice during the period 5.00 a.m. to 5.15 a.m. He was very particular about this occurring and looked into the yard before logging into his computer at 5.21 a.m. Mr. Eakin is then supposed to have rung him at 5.22 a.m. to abuse him and query why he was there etc. and invite him to the barbeque. On Mr. Eakin's version this happens around 6.00 a.m. after Con Volonis tells him Marcus is there at about 5.45 a.m. I also note that Mr. Frassanito's evidence before me was not the same as before the Magistrate where he said he drove past at 5.15 a.m. and then went in and observed Mr. Eakin after walking through the office. I wonder how all that could have been done in the 6 minutes between 5.15 a.m. and 5.21 a.m. when he logged onto his computer (also the evidence in the Local Court). The differing times relied on by Mr. Frassanito of either 5.00 a.m. to 5.15 a.m. or 5.15 a.m. to 5.21 a.m. cast further doubt on his evidence.

194 Having carefully considered Mr. Frassanito's evidence I can only conclude that the loading of two bins into the truck just did not happen or it did not happen when (both time and day) he said it did.

195 It appears to be incontrovertible that the video shows the movement of one full bin at 5.27 a.m. from under the conveyor. If Mr. Frassanito saw a forklift loading two bins into a truck between 5.00 a.m. and 5.15 a.m. neither bin could possibly have been the bin of hot butts nor could the bins have come from inside the factory via the route picked up by the video. The video showed only one trip in that direction. They could only have been bins outside the factory area and already in the yard between Doors 4B and 4C and Gate 3 (as shown on the plan of the factory- Exhibit 7A).

196 I appreciate that it is pure speculation on my part and not supported by direct evidence (but there has been a degree of speculation by both sides in this matter) but Mr. Frassanito could have been deliberately mixing up or confusing what happened with the pick up on Friday by Metalcorp of the three bins which include two G.J. James bins used for swarf - Mr. Eakin's evidence.

197 Mr. Usher said that when he searched the shed where the bundles were kept, there were two Metalcorp bins with cold unmarked butts in the shed. This could explain two missing bins out of the total count of 20 if 2 had in fact gone to Metalcorp as Mr. Eakin said. It also substantiates to a degree Mr. Eakin's account of mixing the bins around on occasion. Whether the G.J. James bins had holes in for drainage is immaterial. I'm sure if it was the case (and Mr. Eakin was not cross-examined on this) that the bins needed to be used urgently some sort of lining could have been placed in the bottom to enable swarf to be stored.

198 Mr. Eakin was never challenged on his evidence about the Metalcorp pickup. Exhibit 6 was not put to him. The obvious anomaly that leaps out from the page is where was all the scrap produced at the factory (other than butts accounted for in Exhibit 6) going to? If it was not going anywhere between January and June 2004, I would have thought the factory would have been overflowing with scrap aluminium in both bundles and containers of swarf.

199 Mr. Frassanito obviously told Mr. Usher about seeing a white truck but no-one else. Mr. Usher told the Police. It does not appear from the record of interview as summarised by the Magistrate that anything specific about Mr. Eakin loading the truck was put to him however.

200 One has to seriously query why if Mr. Frassanito did see this happening he did not tell the Police himself. He waited 4 months and made a statement only after being asked to do so by the Company.

201 One also wonders whether Mr. Frassanito came up with 2 trips by the forklift after Mr. Usher told him 2 bins were missing.

202 Mr. Clements rightly raises issues of Mr. Frassanito's credit. There was a line of questioning in his cross-examination that sought to establish the relationships outside of work between the Eakin and Frassanito family. Mr. Frassanito was evasive and made grudging concessions. It seems strange that if there was no such relationship that he would be phoned by Mrs. Frassanito later that day seeking to have him pass on a message to Andrew Dinning.

203 I concur with Mr. Clements conclusion that if he really was concerned about some retribution from Mr. Eakin then telling the Police straight away and even importantly more giving evidence as to what he said he definitely saw to the Magistrate (rather than "I thought it was the defendant") would have been his protection. If he did in fact need such, which I strongly doubt.

204 I have to say I found Mr. Frassanito "shifty" and I have extreme doubts about the voracity of his evidence and his motives for such evidence.

205 Clearly, based on the evidence I have outlined about above, the only possibility is that the bin of hot butts went missing after 5.30 a.m. and before about 6.15 a.m. - 6.20 a.m. when Mr. Usher commenced his search of the factory.

206 That there was a barbeque underway between about 5.00 a.m. and 6.00 a.m. to 6.15 a.m. does not appear to be unusual based on the evidence. Nor is there any evidence to support that it was in any way sinister or suspect. There are however in Mr Hayes' Chronology, some conflicting times given about when various persons were there particularly Mr. Eakin and Mr. Frassanito. Mr Eakin is placed there as early as 5.30am (Burrell) and as late as 5.45am (Sant). This is perhaps understandable given that in the normal course of events it would be highly unlikely that employees would be checking watches and noting the time every time someone came or went or took a phone call.

207 I also note from Mr. Hayes' Chronology that a Raoul Silang got the keys for the forklift from Mr. Eakin at 6.00 a.m. and moved some logs. This would perhaps seem to reduce down the window of opportunity for the bin of hot butts to go missing even further, but Mr. Silang was not called as a witness and Mr. Eakin was not questioned on this matter. Neither was the issue canvassed of whether or not there was only one set of keys for the forklift. Nor indeed why logs were being moved at 6.00am when the press shut down at 6.15am and a maintenance day was scheduled.

208 Mr. Eakin was never interviewed by Mr. Hayes who relied on what the Police told him and what various other employees told him about the events of that shift.

209 It appears some employees did not volunteer any information. The Magistrate commented in his decision that Mr. Eakin was the first person to be spoken to (officially by the Police I assume he meant) and went on to say: "apart from people in the yard, a lot of the shift workers did not want to give evidence, save Mr. Frassanito who decided later on to give evidence, as Mr. Hayes tells us in his statement it came about.... But everybody else remained quiet and did not want to co-operate with Police".

210 There was also never any subsequent interview of Mr. Eakin by the Police to raise or clarify any further issues that emerged following the statements made by Mr. Usher and Mr. Frassanito on 13 September 2004. Mr. Hayes said he was "passing information" on to the Police. Again, none of this was ever put to Mr. Eakin.

211 Similarly, the 2nd and 3rd emails of Steve Garnanky and the statements of the two employees in May concerning the sale of scrap to them by Mr. Eakin were never put to him during the course of the investigation. Nor was he cross-examined on any of the allegations raised in the documents in question.

212 He was also not made aware of the Company's suspicions about missing aluminium from April on and he was the Production Supervisor. This may suggest that he was already under suspicion.

213 When Mr. Hayes met with Mr. Eakin on Saturday 15 May, he had clearly already made up his mind that Mr. Eakin was guilty. He did not put any firm and specific allegations to Mr. Eakin. Though certainly Mr. Eakin could have been in no doubt that he was being accused of stealing a bin of hot butts from G J James' premises earlier that day based on what the Police had questioned him about.

214 Having carefully considered the respective versions of what is alleged to have been said between Mr. Hayes and Mr. Eakin, I have no doubt whatsoever that Mr. Hayes effectively terminated Mr. Eakin then and there. I also agree with Mr. Clements that Mr. Ushers' initial response as to what Mr. Hayes told him over the phone had happened (Mr. Eakin terminated) is the correct version rather than being "released from duty" which he put forward later.

215 I do not accept that Mr. Hannay would have issued an Employment Separation Certificate on Tuesday 18 May without some clear indication from an appropriate person in management that Mr. Eakin's employment had been summarily terminated.

216 I also note his Group Certificate (Exhibit 4) also reflected that he was only paid until 17 May. If he had been suspended and not terminated for a further two weeks this would have been reflected in his pro-rata entitlements to annual leave which would have continued on for that two weeks.

217 It is ludicrous to suggest that termination didn't take place until two weeks later and by one of the Directors (and just which Director Mr. Hayes couldn't say) and that Mr. Hayes wasn't aware of the event. No termination letter was issued because Mr. Eakin had already been terminated by Mr. Hayes. That is very clear.

218 There is not a great deal of difference between the two versions of what was said by Mr. Eakin to Mr. Hayes at the subsequent meeting on 19 May. It seems more a matter of interpretation when one considers the actual words:- Hayes version (from the oral evidence) Eakin: - "Well do you think you've got me?" Hayes: - "Yes we do". Eakin: - "Well if that's the case, why don't the Police come in here and arrest me?" Eakin version (Exhibit 1) Eakin: - "If you're so sure that I stole the aluminium, why don't the Police come in here and charge me now?"

I don't think that what Mr. Eakin said is somehow corroboration that he is admitting to anything as seems to be suggested by the Company.

219 Mr. Hayes agreed in cross-examination that Mr. Eakin asked if he was going to be re-instated. To which he said he didn't comment. I would have thought that if in fact he hadn't yet been terminated Mr. Hayes would have made it clear to him in response that he was only suspended pending the finalisation of the investigation.

220 The meeting was short and clearly Mr. Eakin was given no real opportunity of responding in any detailed way to the allegation of theft or of defending himself.

221 I can understand how on that Saturday, absent any detailed investigation and interview with Mr. Eakin, on the face of it all the evidence (some circumstantial) seemed to point to Mr. Eakin as the guilty party. However, that evidence was like a house of cards with the bottom cards mainly consisting of Mr. Frassanito's alleged sightings. Remove those cards and the house collapses.

222 I have also carefully considered the documents that the Company sought to rely on to demonstrate that matters had considerably changed since Mr. Eakin's termination (Exhibits Ex 5 - GH1 and Exhibit 5 - GH8). I have difficulty seeing that either document suggests improvements that could be relevantly linked to the issue of aluminium being stolen from the site. 223 They may certainly indicate improved production (or rather less scrap product). However, no issues have ever been raised about Mr. Eakin's performance as Production Supervisor. Certainly, the point was clearly enunciated by Mr. Hayes on 15 May that as Production Supervisor Mr. Eakin "was responsible". The aluminium disappeared on "his watch" as it were. That may raise implications of slackness in his oversight and supervision. However, those issues were not raised with Mr. Eakin prior to his termination or during the course of this hearing in any way at all.

224 There is no doubt, in answer to the fundamental question posed by Mr. Ban, that aluminium butts went missing on 15 May 2004. They appear to have not surfaced anywhere. There was certainly something awfully "fishy" going on at the site. It beggars belief that only one employee was involved. I cannot see how other employees would not have been aware of what was happening or were not also involved.

225 I have to say that I do have a doubt about Mr. Eakin. Mr. Clements' submission that there was no evidence that he was driving the forklift on the video also concerns me as it is clearly incorrect. That may simply reflect poor preparation on Mr. Clements' part. But I also have greater doubts about Mr. Frassanito and even Mr. Usher and indeed all other employees on that shift.

226 The hearing of an unfair dismissal application is very much like doing a large jigsaw puzzle. The original application and Employers reply establish the basic border and provide a number of pieces of the jigsaw. The evidence and submissions in a hearing usually provide the rest of the pieces. The Commission then has the task of putting all the pieces together and forming a completed picture of the puzzle enabling findings to be made and a conclusion arrived at.

227 I have found this matter particularly frustrating as not only do I still seem to have a number of pieces of the puzzle missing but some of the pieces I do have just don't fit properly. That leaves me in the position of being unable to establish exactly what did happen even on the balance of probabilities. 228 I also have a concern about the Magistrate's decision as it would appear from that decision that he has based the doubts he expresses on Mr Eakin working at the "same place" for 16 years rather than for the same company over a 16 year period but at three different locations and for differing extended and lengthy periods. However I do not know just what evidence was before the Magistrate and on what basis he came to form that view. 229 The onus is clearly on the Company to establish that misconduct has taken place per Pastrycooks, Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) V Gartrell White (No. 3) (1990) 35 IR 70 as applied in Wang v Crestell and numerous other decisions of this Commission. The Commission must then be satisfied that that onus has been discharged and that the misconduct occurred. 230 In New South Wales Fire Brigade Employees Union (on behalf of Natoli) and New South Wales Fire Brigade [2005] NSWIRComm 440, Sams DP identifies at paragraph 218, the four questions that arise for consideration in a case for summary dismissal for misconduct. 1. Was the conduct against the dismissed employee proven? 2. Did the seriousness of the conduct justify summary dismissal? 3. Did the conduct constitute a fundamental and wilful representation of the contract of employment? 4.Were mitigating factors taken into account?

231 Applying the Briginshaw v Briginshaw test I am unable to find that the Company has established that Mr. Eakin committed serious misconduct by stealing, as alleged, aluminium butts from the Company on 15 May to the "reasonable satisfaction" of the Commission. Indeed, I remain unconvinced that Mr. Eakin was responsible for any theft of the Company's property at all. I am unable to say who was responsible.

232 In arriving at that conclusion, I have taken into account not only the evidence and submissions of the parties but also the demeanour of the witnesses and in particular that of Mr. Eakin and Mr. Frassanito. In contrast to Mr. Eakin I was not impressed with Mr. Frassanito at all.

233 Having answered the first question posited by Sams DP in Natoli in the negative, it is unnecessary to consider the remaining three questions posed.

234 Whilst the onus is on the Company to establish that misconduct has occurred per Pastrycooks etc. there still remains an onus on Mr. Eakin, the applicant, to establish that the termination was harsh, unjust or unreasonable per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273.

235 A dismissal can be both substantively and procedurally unfair. The case usually quoted in this regard is the High Court judgement in Byrne & Anor v Australian Airlines (1995) 61 IR 32 at p72.

236 Having found on the evidence before me that misconduct did not occur it follows that on substantive grounds the dismissal of Mr. Eakin was harsh and it was unjust.

237 In relation to procedural fairness Byrne & Anor v Australian Airlines has also been relied on in Full Bench Decisions of this Commission including Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Rapp v Wauchope RSL Club (1998) 81 IR 116; Bigg & Anor v New South Wales Police Service (1998) 80 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255; and Antanakopolous v State Bank (1999) 91 IR 385.

238 I also have concerns in relation to the procedures followed by the Company in relation to the dismissal of Mr. Eakin and whether he was afforded procedural fairness.

239 One of the major difficulties I have with the procedures followed by the Company is the total reliance it would appear, on the Police interviewing Mr. Eakin and conducting an investigation. There was no detailed interview of Mr. Eakin by the Company, the precise allegations were not put to him by the Company and he was not therefore in any position to properly respond either on the 15 or 19 May or at any other time.

240 The issue of the consequences for an employer of making a decision to summarily dismiss and the need for employers to be fully satisfied that misconduct has taken place, is dealt with by the Full Bench in Shop Distributive & Allied Employees' Association NSW Branch v Jewel Food Stores (1987) 22 IR 1, at p. 2 and Franklins Ltd. v Webb (1996) 72 IR 257 at p.261, and also by Sams DP in Hill v Department of Juvenile Justice (2000) NSWIRComm 128 at para 62-63.

241 In Wang v Crestell the Full Bench dealt with procedural fairness issues raised in the grounds of appeal and cited Byrne v Australian Airlines Ltd and observed at p. 467: " The commissioner did not refer to other passages from the judgements in Byrne v Australian Airlines Ltd, but we consider nevertheless that that case provides strong support for the commissioner's conclusions that, on the basis of the seriousness of the misconduct established to his satisfaction in this case, the lack of procedural fairness which may have been involved did not render the dismissals harsh, unreasonable or unjust" (emphasis added). 242 The Full Bench held at p. 469: " The Commissioner, after a lengthy hearing of the applications, reserved his decision and subsequently issued a well-reasoned decision which carefully assessed the relevant evidence and material before him in the context of the matters in issue. The commissioner's firm conclusion was that the employer's belief that the appellants had been involved in the unauthorised removal of company material from its premises for use in the business which Mr. Wang ran from his home was justified, that, in fact, the appellants had been so involved and that such action justified dismissal; the employer's peremptory dismissal action without extending to the employees considerations of "procedural fairness" did not, in all the circumstances, result in the dismissal being harsh, unreasonable or unjust" (emphasis added). 243 Whilst I earlier expressed the view that I could understand how Mr. Hayes could come to the conclusions he did based on what information he had on 15 May that does not mean that Mr. Eakin was not entitled to have appropriate procedural fairness extended to him. 244 The conclusion that can be drawn from the passages I have cited from Wang v Crestell is clearly that an employer in a summary dismissal for misconduct who relies solely on a Police investigation and criminal proceedings runs a great risk that if the employee is subsequently acquitted of the criminal charges, any defects in procedures or absence of procedural fairness compound the substantive unfairness of the dismissal if that dismissal is not found to be justified before this Commission arising from an unfair dismissal application. 245 This leads me to also address the rather novel submission made by Mr. Ban that S.88(a) is silent on just who had to give a reason for the dismissal, that it didn't have to be the employer and could by implication be a third party (presumably the Police). I reject that submission. I consider it implicit in S.88 that it must be the employer who gives the reason (where the employer has initiated the termination obviously). 246 One of the features of Wang v Crestell at first instance, was that Crestell never actually formally conveyed the termination to Mr. Wang and the other two employees concerned. This was done by the Police. The observation that the procedural unfairness at the point of dismissal was outweighed by the seriousness of the offences, which the evidence showed they committed, was upheld by the Full Bench. 247 True it is that S.88 lists a number of factors that in determining an applicant's claim the Commission "may take into account". The failure to give a reason is just one factor. Although it has been held by the Commission that failure to give any reason at all is itself unfair and grounds for intervention of the Commission see New South Wales Independent Teachers' Association v St Aloysius College (1976) AR 91. 248 Subsequent allegations that surfaced were also never put to Mr. Eakin and he never had the opportunity of defending himself or responding. Whilst Byrne & Anor v Australian Airlines is authority for an employer being able to rely on matters that come to their attention post termination, again that seems to me to emphasise the necessity for a proper investigation and a procedurally fair process to be followed initially otherwise where misconduct is not subsequently confirmed, the employer is automatically exposed to the risk of a termination being procedurally unfair when the matter comes before the Commission as was held in Tamworth City Council v FMSCEU which also dealt with post termination procedural issues. 249 I now turn to consideration of whether Mr. Eakin has established that his termination was harsh, unjust and unreasonable. 250 The expression "harsh, unjust or unreasonable", was considered in Byrne & Anor v Australian Airlines at p. 72. The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that it is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one or any or all of those three. 251 The meaning of those individual terms has been considered in detail by Connor C in Parker v Capitol Painters & Decorators P/L (1996) 68 IR 100 at 104 and by Sams DP in Sams v Contact Point International Pty Ltd (2001) NSWIRComm 18. I adopt those considerations. 252 Bankstown City Council v Paris (Wright P, Peterson J and Bishop C) IRC 262 of 1999 23 August 1999, is authority for the fact that I must make a positive finding as to whether the termination of Mr. Eakin was harsh, or unjust or unreasonable (or any combination thereof). 253 Based on the evidence before me, I am unable to conclude that Mr. Eakin did commit serious misconduct by stealing aluminium from the Company on 15 May 2004. Therefore, his summary termination on grounds of that alleged misconduct was harsh and unjust. 254 Based on the evidence before me, Mr. Eakin was not afforded procedural fairness in relation to the summary dismissal. He was not properly and in detail, informed by the employer of the allegations against him; he was not interviewed by the employer in relation to the allegations prior to the summary dismissal which I found was effected by Mr. Hayes on 15 May 2004; he was not given a proper opportunity of responding to the allegations and he was not provided with a letter of termination giving reasons for his termination. Other allegations which came to the Company's attention subsequent to his summary dismissal were also not put to him and he had no opportunity to respond to those allegations and defend himself. As a consequence of the absence of procedural fairness I find his summary dismissal was harsh and unjust. 255 Mr. Eakin sought the maximum amount of compensation available under s.89 (5) of the Act. 256 There are no provisions in the Act as to what is the appropriate amount to be awarded in compensation where a termination is found to be harsh, unjust or unreasonable and re-instatement is either impracticable or not sought. 257 In terms of Section 89 (5) the upper limit for monetary compensation is set at "an amount of compensation not exceeding six months remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed". Section 89.5 is concerned essentially with the loss of earnings. Section 89.6 provides as follows: "When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant has succeeded in obtaining alternate employment". 258 However, in D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 the Full Bench of the Commission (Wright J President, Walton J Vice President and Tabbaa C) commented at page 363 that: "The power in the Commission to make a money order subject to the limitation on the quantum of compensation and the matters required to be taken into account by Section 89.6, is nevertheless within the Commission's discretion whilst the Commission is required to take into account the matters identified in Section 89.6 those matters are not necessarily to be reflected in any particular arithmetic or definitive way in the money order for compensation made".

259 Since his summary dismissal Mr. Eakin has established his own business. That has obviously involved costs but has also provided him with income. There was no evidence before the Commission as to earnings since his dismissal. He has however, clearly taken steps to seek to mitigate his loss, a matter for me to take into account per S.89.6.

260 I have also considered the outcome and the basis for such in Humphries v Cootamundra Ex-Services & Citizens Memorial Club.

261 As is my usual practice, I list the factors that I have taken into account (not in any particular order of priority or importance) in determining the amount of compensation contained in the Orders I issue in this matter as follows: · I have found on the evidence that Mr. Eakin did not commit the serious misconduct for which he was summarily dismissed. · I have found he was not afforded procedural fairness in relation to his summary dismissal. · The allegations were of a serious nature such as to affect a person's reputation in the community. · Mr. Eakin occupied a salaried senior supervisory position with the Company and had risen to that position from that of a process worker over the years of his employment. · Mr. Eakin had been employed by the Company for substantial periods of employment commencing in 1988. · There were no issues raised about his work performance nor any suggestion made that his work record was not exemplary. · Mr. Eakin has been unable to secure alternative employment in the area of his skills and experience and due to the nature of his dismissal may have difficulty in securing such employment in the future. · He has sought to mitigate his loss although there is no evidence as to income earnt since his dismissal · A period of approximately 18 months elapsed from the date of dismissal to the hearing of this matter due to delays beyond the control of either Mr. Eakin or the Company arising from the Police investigation, Local Court proceedings and an applications initially filed in the Federal Commission. ORDERS 1. Pursuant to s.89.5 and 89.6 G J James Extrusion Co. Pty Ltd shall pay to David Eakin an amount of compensation of $23,000 being approximately 16 weeks pay. This amount is a gross figure and appropriate taxation treatment is a matter for the parties. 2. The amount of compensation specified is to be paid within twenty eight days. 3. These Orders take effect on and from today 20 March, 2006.

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