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.