Ben Clifford Sabeto v Waterloo Car Centre Pty Limited trading as Red Spot Rentals - PR926041 [2002] AIRC 1582; (20 December 2002)

Note: An appeal pursuant to s.45 (C2003/363) was lodged against this decision.

Workplace Relations Act 1996

s.170CE application for relief in respect of termination of employment

Waterloo Car Centre Pty Limited t/a Red Spot Rentals

[1] This decision arises from an Application filed pursuant to s. 170CE of the Workplace Relations Act 1996 (the Act) by Mr Ben Clifford Sabeto (the Applicant) for relief concerning the termination of his employment by the Waterloo Car Centre Pty Limited trading as Red Spot Rentals (the Respondent).

[2] The Application in this matter was filed on 30 April 2002. A jurisdictional objection was lodged, based on the Respondent's contention that the Applicant was serving a period of probation or a qualifying period of employment pursuant to s. 170CEA of the Act.

[3] The hearing of the substantive matter, with the jurisdictional issue proceeding initially, occurred in Melbourne on Wednesday 2 October 2002. The jurisdictional objection was dismissed.[1] The final hearing of the substantive matter occurred in Melbourne on 28 October 2002. The Applicant was represented by Mr Grey of Goldsmiths Barristers and Solicitors, and the Respondent by Mr Harrington of Counsel.

[4] Pursuant to s.170CG(3) of the Act, the Commission must have regard to the following factors when determining whether a termination was harsh, unjust or unreasonable:

"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the capacity or conduct of the Employee or to the operational requirements of the Employer's undertaking, establishment or service; and

(b) whether the Employee was notified of that reason; and

(c) whether the Employee was given an opportunity to respond to any reason related to the capacity or conduct of the Employee; and

(d) if the termination related to unsatisfactory performance by the Employee-whether the Employee had been warned about that unsatisfactory performance before the termination; and

(da) the degree to which the size of the Employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(e) any other matters that the Commission considers relevant.

[5] If the termination is found to be harsh, unjust or unreasonable, s.170CH deals with remedies. This section is extracted, in part, below:

"(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) if it has determined that the termination was harsh, unjust or unreasonable.

(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the Employer's undertaking, establishment or service; and

(b) the length of the Employee's service with the Employer; and

(c) the remuneration that the Employee would have received, or would have been likely to receive, if the Employee's employment had not been terminated; and

(d) the efforts of the Employee (if any) to mitigate the loss suffered by the Employee as a result of the termination; and

(e) any other matter that the Commission considers relevant;

(3) If the Commission considers it appropriate, the Commission may make an order requiring the Employer to reinstate the Employee by:

(a) reappointing the Employee to the position in which the Employee was employed immediately before the termination.

(b) appointing the Employee to another position on terms and conditions no less favourable than those on which the Employee was employed immediately before the termination... ....

(6) If the Commission thinks that the reinstatement of the Employee is inappropriate, the Commission may, if the Commission considers it appropriate in all the circumstances of the case, make an order requiring the Employer to pay the Employee an amount ordered by the Commission in lieu of reinstatement.

(7) Subject to subsection (8), in determining an amount for the purposes of an order under subsection (6), the Commission must have regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the Employer's undertaking, establishment or service; and

(b) the length of the Employee's service with the Employer; and

(c) the remuneration that the Employee would have received, or would have been likely to receive, if the Employee's employment had not been terminated; and

(d) the efforts of the Employee (if any) to mitigate the loss suffered by the Employee as a result of the termination; and

(e) any other matter that the Commission considers relevant."

[6] The Applicant commenced employment with the Respondent as Manager of the Melbourne branch in early December 2001. The parties disagreed on the commencement date. The Applicant was terminated on 9 April 2002 for alleged misconduct.

[7] The head office management base for the business is located in Sydney, near Mascot Airport. The business incorporates car rental and car sales divisions, and a licensing division for car rentals. The business has five state offices, including the head office in Sydney.

[8] The termination significantly relates to events that occurred on 9-10 April 2002, when Mr Benn (the General Manager of the Respondent company) visited the Melbourne branch to undertake a spot audit. As a result of the inspection and the events on 9 April 2002, Mr Benn prepared the following letter of termination:

On Tuesday 9th April 2002 a random audit was conducted at the branch located at 58 La Trobe Street Melbourne Victoria. Upon commencing the audit there where [sic] a number of operational concerns that surfaced, which include:

· Banking of American Express, Barter Cash and Cheques not banked for a period of 24 days.

· Petty cash payouts have not been processed daily.

· Back log of mailing and general correspondence that is urgently required in Sydney for administrative processing.

· Concierge commissions not paid for over 2 months.

· Office appearance was filthy including smashed glass on the floor and rubbish everywhere.

This has highlighted your failure to follow company policy and procedure. As a result of these matters being raised for discussion with you, the manner in which you responded was totally unacceptable and will not be tolerated. Your conduct and actions included:

· Poor attitude towards your responsibilities and duties as a Manager.

· The manner in addressing senior staff was abusive, rude, involved the use vulgar [sic] language and was delivered in a threatening manner.

Furthermore there still remains a large amount of cash takings that are unaccounted for and numerous areas of administration to be investigated. Subsequently, the matter will be investigated internally and had also been referred to the police. Subject to the finds of the investigation there may be further action taken against you.

As a result, effective immediately your employment with our company will terminate with our Company [sic].

[9] The Melbourne office of the Respondent is located at 58 Latrobe Street, Melbourne (the Melbourne branch). In addition to the car rental business operating from this office, there was also a small `pay-as-you-park' operation. The parking spaces were hired for a fee to both permanent and casual parking customers. Casual parking customers were charged approximately $10.00 per day.[2]

[10] The Applicant's role in managing the Melbourne office was quite autonomous given the location of this office, and the fact that Mr Benn, to whom he reported, was located at the Sydney head office.

[11] The nature of the Applicant's job was outlined by Mr Benn as follows:

"Insofar as Mr Sabeto returned to Melbourne to run the office, what level of autonomy did he have in that office?---Complete control of the organisation, including hiring and firing of staff, basically as well office administration, daily banking duties such as American Express, such as credit card entries, also barter card conciliation, security of the branch; just all facets that basically a manager would have I guess under the circumstances.

And how regularly did you travel to Melbourne?---Depending, normally what I used to normally do is I would visit our Brisbane office. That was normally on a five to six week basis. In return I guess basically down to Melbourne. Initially I guess the visitation frequency was probably I guess four to five weeks. Then as Mr Sabeto settled in, obviously it was five to six weeks where I would appear down at the offices.

And who ultimately was responsible for the running of the Melbourne office in Melbourne?---In Melbourne itself, Ben Sabeto was."[3]

[12] Mr Benn and the Applicant were in contact via telephone and electronic mail on a regular basis. The company's computer system allowed the General Manager to access the Melbourne branch's financial data when it had been inputted into the system.

[13] The incidents of 9 April 2002 and the spot audit occurred against the background of events wherein a robbery had occurred at the Melbourne office in February 2002, and a sum of money was stolen. In relation to the break-in at the Melbourne branch in February, Mr Benn said:

"The break in was of particular concern to us as a company. There were a number of I guess suspicious circumstances surrounding the break in being basically number one is that the - the way the office was broken into. There was a point of entry at the rear door but obviously where the glass had been smashed one would think if someone was coming in to break into an office they would throw a brick through the front window and you would think that the glass would be on the inside of the office. This was not the case with that break in. The glass was on the outside of the office which would indicate to me that basically the office had been broken into and I guess a brick had been thrown through the ..."[4]

[14] It was not alleged that the Applicant was responsible for this; however, the issue was discussed at a Management Meeting on 19 February 2002, where the Managers were linked by telephone with the General Manager, Mr Benn. During the course of this meeting, Management issued a new Branch Banking directive as a result of this event at the Melbourne branch. Mr Benn, in his statement, set out:

"At this meeting, there was discussion in relation to some money which had been stolen from the Melbourne office. Earlier in February, whilst the applicant was managing the Melbourne office, there had been an over-night break-in. An amount of $2353.15 had been stolen from the office at that time. This was the subject of some discussion at the meeting. I commented that the company had "zero tolerance" for money being stolen from its premises. I requested that all managers banked their takings every Monday, Wednesday and Friday. Further, I requested of the managers that if a branch took over $300 on any given day, the cash be banked on that day. I told them that if the money were not banked on that day (for example if it were a weekend), then I was to be telephoned and advised of that fact. I said to the managers I would then tell them what they should do with the money which had not been banked. I also requested that all branch managers ensured that staff turned on the alarms at closing time."[5]

The procedure for processing petty cash receipts is that they were to be placed on a spike in the office, entered in the computer and then the amounts taken off the total for the day[6].

[15] The "Managers Meeting Minutes", produced from the meeting on 19 February and provided to the Managers, set out the following in relation to the discussion on the stolen money and revised banking procedure:

JB informed all present that a large sum of money had been stolen from the Melbourne office. JB advised the company has a zero tolerance level when it comes to this matter especially if RSR staff are involved. JB asked that all branch's [sic] bank every Monday, Wednesday and Friday and if a branch takes over $300.00 on any given day it must be banked on that day. If the money is not banked on that day or it is a weekend then please telephone JB and he will advise what steps to take. He also asked that Branch Managers ensure that all staff closing at night are setting the alarms. DM does not want safes left open during the day in branches."[7]

[16] Mr Benn, in his statement, indicated that in March 2002, he began to have concerns over the management of the Melbourne office:

"... I was concerned in relation to the following matters:

(a) remittance of casual parking revenue that had been collected on a daily basis;

(c) banking policies and procedures had not been complied with;

(e) the fact that there had been a theft from the premises in February 2002; and

(g) salary had been advanced to the applicant and he seemed to have personal financial problems."

RANDOM AUDIT OF MELBOURNE BRANCH - 9 APRIL 2002

"On 9 April 2002 I travelled from Sydney to Melbourne in order to conduct a random audit at the Melbourne office. I arrived at the premises at approximately 9am. The office was at that time unattended with a note on the door stating "Back in 15 minutes". The office was in a particularly dishevelled state. There was smashed glass on the floor. It was generally untidy. That day's newspaper was open on the counter. Furthermore, and of greater concern to me, the cash drawer was unlocked. The cash drawer and safe were wide open and there was an amount of money lying in the safe. I then conducted an audit and discovered that there was a cash discrepancy. The discrepancy, on the documents I looked at, was in the sum of $834.90. I then conducted a reconciliation of the DRWBAL and EFTPOS vouchers. DRWBAL is a reference to "Draw Balance", a program in the computer concerned with balancing daily takings."[8]

[18] The parties accused one another of using abusive language when the Applicant returned to the workplace, and Mr Benn raised the findings of the random audit with the Applicant. It is agreed that after the initial exchange, the Applicant walked out to get a drink. When he returned, there was a short discussion on alleged breaches of policy and procedure in relation to the issue of cash handling and branch security. The exchange again became heated and the Applicant walked out of the premises, went home and turned his mobile phone off for the afternoon.

[19] Mr Benn states that he endeavoured unsuccessfully to contact the Applicant:

"...Thereafter, I rang Sydney and spoke to a director of the company, Dan Mekler. After some discussion, I recommended to Mr Mekler that Red Spot should terminate the applicant's employment having regard to:

· the safe and cash drawer being left open whilst the premises were unattended;

· the fact that so much of the cash and banking had not been done;

· the applicant's language and threatening conduct in dealing with me on that day.

Mr Mekler accepted my recommendation. I then drafted a letter advising the applicant he was terminated.

....I thereafter notified the police in relation to the $834.90 that was missing from the premises. The Victoria Police attended and asked me a number of questions. I continued to operate the business out of the Melbourne office for the entire day. The Melbourne office made the daily cash target in relation to the casual parking. I tried to call the applicant on many occasions on his mobile phone but it was switched off for the whole of the day.

...At about 10:30am on 10 April 2002 I contacted the applicant on his mobile phone. He had not appeared for work at 8:30am that morning. The applicant said to me over the phone words to the effect:

`I will be in soon and I am sick and I have a doctor's certificate.

Some time later, the applicant attended at the Melbourne offices. At that time, the applicant handed to me $630 in cash. He presented me with crisp, fresh notes in the following denominations:

At the time the applicant handed over this cash to me I typed up and printed out a receipt formally recognising that he had provided $630 of company funds to me on 10 April 2002. I provided a copy of this receipt to the applicant. Now produced and shown to me and marked with the letters "JB-8" is a copy of the receipt I provided upon provision of the $630 dated 10 April 2002.

I took the money from the applicant. He explained to me that this money belonged to the company. He did not explain to me why he had this money in his possession. He did not explain to me why this money had not been banked nor why it was not in the safe at the Melbourne offices when I conducted the audit the day before.

I then issued to the applicant his letter of termination which was dated 9 April 2002. Now produced and shown to me and marked with the letters "JB-9" is a copy of the letter of termination to the applicant dates Tuesday 9 April 2002.

The Victoria Police then attended the Melbourne offices. I provided a formal statement to them in relation to the money that was missing as a result of the audit I had conducted the day before. At that time, there was still $204.90 which had not been accounted for."[9]

[20] The matter was not further pursued with the police; however, Mr Sabeto initiated a meeting with the police and advised that he had the money in his possession for banking, and that he had sought a receipt from the Respondent upon returning the money.

[21] Mr Benn stated that on 12 April 2002, he advised the Applicant of the breakdown of his final pay. The documentation of the breakdown of the final payment includes a reference to a shortfall of $204.90, which Mr Benn stated was:

"...a reference to the shortfall in funds at the Melbourne office after the Applicant had provided to me the $630 in company funds..."[10]

Mr Benn stated that the audit had shown a shortfall of $834.90, and that the Applicant had returned $630 in cash to him on 10 April 2002.[11]

[22] Over the ensuing days of 11, 12 and 13 April 2002, the evidence indicates that there were several abusive discussions between the Applicant and Mr Benn, regarding the amount of the Applicant's final payment.

[23] The final pay provided to the Applicant was recorded as follows:

The parties made no submissions with respect to the composition of the final pay.

[24] Mr Benn acknowledged in his statement that:

"...Upon reflecting on the final termination of paying notice, I now realise it is incorrect to refer to the $204.90 as "stolen money" as I have no evidence that the applicant stole this money. However, this money disappeared whilst the applicant was managing the Melbourne operations. In the circumstances, where $630 cash was returned to me by the applicant from a place offsite in breach of company policy, I assumed at the time of termination that the applicant had in his possession this further $204.90."[13]

[25] The Applicant opposes the contentions of the Respondent in relation to the events of 9 and 10 April 2002. He states as follows:

"...On 8 April 2002 I attended the office at 7:00am as usual and took the cash float out of the safe and placed it in the cash drawer which I then padlocked. I also took the banking out of the safe and placed it in my briefcase for security as I had been advised to do so by the Respondent at staff meetings on previous occasions. I then left the office to deliver a vehicle to a client at a nearby hotel. When I left the office the safe door was closed but there was no need for same to be locked because it was completely empty. Before I left the office a light bulb smashed and glass spread onto the floor. I swept the glass into the corner and planned to attend to it on my return. As I left the office I locked the front door. On returning to the office I was met by Mr Benn who informed me that he wished to go through the bookwork for the office. Mr Benn pointed out slight discrepancies in the daily bookwork of between one and five cents. Mr Benn spoke to me in an abusive and demeaning manner and accused me of a variety of offences. He swore at me and called me stupid and lazy. I told Mr Benn that I was not prepared to be spoken to in this way and that I was feeling extremely ill and that I was going to go home for the afternoon. He said, "Fine, piss off". I left the office.

On 9 April 2002 Mr Benn rang me early in the morning and asked me if I was coming to work. I stated that I was ill and that I was going to the doctor's that morning. Mr Benn then said "Where is my fucking money". I asked him if he was accusing me of theft. He replied that he was. I explained to him that the banking was in my briefcase as I had gone home sick and had not banked it and that I would bring the banking into the office with me when I attended work at lunch time.

When I attended the office at approximately midday on the same day, Mr Benn approached me in an aggressive manner. He was rude and abusive and I felt upset and disgusted by the way he was speaking to me. I handed the banking to him and greeted him as politely as possible. Mr Benn then handed me a letter terminating my Employment with the Respondent...Mr Benn said that the Respondent was investigating monies missing which they believed were unaccounted for and that the police had been contacted. I told Mr Benn that I would not leave the office without a letter acknowledging that I had returned the banking. Mr Benn gave me the letter. Annexed hereto and marked "D" is a true copy of this letter. Mr Benn requested that I give him my work keys and I complied. I asked him about my pay entitlements and he replied that I would not get any money until an internal investigation had been conducted. I told Mr Benn that I thought that contacting the police might help sort the problems out and I again asked about my pay entitlements. Mr Benn repeated that he would not be paying anything. At this point I gathered my belongings and left the office.

On the same day I attended the Melbourne Central Police Station as I was concerned that allegations of theft had be made against me [sic]. I was interviewed by the police and I produced the letter of receipt from Mr Benn in relation to the banking. I was advised by the interviewing officer that I should not be too concerned about the matter and that no charges had been laid against me. I was never and have never been contacted by the police in relation to the Respondent's claims and to my knowledge no charges have ever been laid."[14]

[26] In cross-examination, the Applicant was questioned about the recording process for the inflow and outflow of revenue. The Applicant states that entries were made on the computer as per an electronic cashbook. He confirmed that if money was received for casual parking, this revenue was entered into the computer, as were petty cash entries.[15] The Applicant confirmed that a rigorous policy was adopted in relation to revenue, as a result of the Managers Meeting held on 19 February 2002. He confirmed that the company directive made at this meeting was that all branches must bank every Monday, Wednesday and Friday, and if $300 is taken in any day, it must be banked that day. In addition, if the money was not able to be banked, Mr Benn would advise what steps to take.[16]

[27] Mr Sabeto agreed that the ANZ branch where he did his company banking was within approximately one kilometre of the Melbourne branch office. The Applicant affirmed that on 26 March 2002, $547 was banked. He confirmed that this was a breach of the banking arrangement established on 19 February 2002, [17] as another 11 days worth of takings were not deposited at the bank at that time.[18] In defence of his action, the Applicant contended that it was often difficult for him to get to the bank, as he was busy or didn't have back-up staff. He further contended that the computer often malfunctioned, preventing him from inputting revenues and petty cash entries.

[28] Mr Grey appropriately questioned Mr Benn as to why he waited for some time prior to coming to Melbourne to investigate the banking. Mr Benn responded that the Applicant, when asked by the Company Accountant about the money, had advised that it had been banked in accordance with the policy. He said that he:

"...had been informed by our accountant that the money for that period had not basically hit the bank account".[19]

[29] In relation to the events of 9 April 2002, the Applicant was asked:

"So on the morning of the 9 April when you have come into work, just before you have taken that car out, you are sitting on revenue in your office for the period 16 March to 9 April?---Correct.

Cash that has not been banked?---Correct."[20]

[30] Mr Harrington put to the Applicant that when he removed the money on 9 April 2002, he did not have the bank book to deposit the money. Mr Harrington stated that Mr Benn, in fact, took the bank book on 10 April 2002 to deposit the money. He questioned the Applicant:

"The fact is, when you took the money on 9 April you didn't take the bank book with you, did you?---I believe I would have.

Is it possible that you didn't?---No, it is not possible. As a matter of fact I don't even know if we had a bank book because after the theft we applied to get some more from the bank, as you can see with the deposit slips, there is none on this either...

Mr Sabeto, you can't recall whether you had a bank book in the office?---We, after the theft we had no - they took the bank books - - - "[21]

This is a reflection of the Applicant's poor office administration.

[31] Mr Harrington questioned the Applicant as to how the $630 in company money was returned in the form of 12 crisp notes on 10 April 2002, when the takings in the main were derived from parking fees of $9.90 per day. Mr Sabeto maintained that some car cleaning was also done, and he didn't find anything out of the ordinary with that.[22]

[32] Mr Harrington put the reasons for the termination to the Applicant. The Applicant agreed, in response to Mr Harrington's comments about his failure to bank cash as instructed, that he did not bank for that period,[23] and that there may have also been unaccounted for American Express monies for a period of 24 days. He did not agree that there were unaccounted cash takings, but he had agreed earlier that he did not process the petty cash receipts daily (amounting to approximately $84.00), and had failed to appropriately bank. He also agreed that there may have been some outstanding fuel receipts and some concierge commissions.

[33] Mr Benn stated, with regard to the $120 amount of the outstanding $204, which the Applicant identified as expenditure for the motor vehicle parking charge at the airport:

"...there wouldn't be a problem in paying out if that was the case that we had to remove basically a vehicle from the airport, where a customer had parked it in the incorrect position, there would be basically approval for that to be paid out and it would be detailed on the day that basically that incident happened. So, therefore, it would show a negative $120, along with the receipt of what had been paid out."[24]

[34] Mr Benn stated he had a recollection, but no specific details, of an incident where a customer had parked in an incorrect parking bay at the Melbourne airport, and stated that he could not find any entry of it.[25] He referred to the need for the company cars to be promptly removed from the airport to be available for rental. He said that if a parking fee was incurred due to the customer, it would normally be the practice for the company to pay this in the first instance ("and a petty cash transaction would take place following from that"), and the customer would then be made to pay for it.[26] There was no petty cash transaction to account for the $120.

[35] Mr Benn gave the following account of how he found the office on the day of 9 April 2002:

"...I found, I guess - personally I was fairly disappointed with what my findings were. I found firstly, I guess, cars driving in and out of our car park, obviously just parking there free of charge. I found the office on the outside - this is when I arrived, locked up. No lights were on inside. The place was very unorganised, I guess, just in the exterior wash bays. Obviously I had to park down the rear of the car park, obviously, and that was to allow, I guess, casual parkers to exit in and out. I then proceeded to unlock the office at the rear of the office which was a set of steel gates there and then open the door and found the office in quite an unsavoury fashion, which I guess to our company was unacceptable. There was smashed glass on the floor, there was the morning - - -

...Basically as you walked in the door, basically just literally everywhere. There was also rubbish bins that were overflowing. The bench tops were putrid and unorganised. There was filing and administration scattered everywhere. There was even the morning newspaper opened up basically there on the bench halfway through it."[27]

Mr Sabeto denied that the office was in this state, and emphasised that he took pride in his own appearance and that of his workplace.

[36] On the material and evidence before me, there was a valid reason to justify the termination. On the circumstances as presented on the balance of evidence, the Applicant's refusal to carry out a lawful reasonable instruction as to the banking process, and his accompanying conduct, justifies termination.

[37] The Applicant had been employed as the Branch Manager and was responsible for the financial and administrative control of the branch. The fact that the banking had not been appropriately processed was a clear breach of the specific direction provided on banking, precipitated by the earlier break-in at this branch. The Manager had an obligation to ensure that the banking was done on Monday, Wednesday or Friday in accordance with the direction. This was not done. The banking of cash revenue was not done for long periods, without suitable explanation. An amount of more than $600 was taken off the premises on 9 April 2002, and was not banked. A remaining amount of $204.90 was left unaccounted for, except for a series of unprocessed petty cash receipts (amounting to $84.90), including one receipt for an expense incurred on 28 January 2002.

[38] Whilst I consider that there is a sound and defensible reason for the termination, the company has, to some extent, condoned the Applicant's negligent adherence to his administrative duties and his financial mismanagement, particularly given their ability to monitor the branch via computer access. This fact does not, however, counteract the Applicant's serious breach of the cash handling procedures.

[39] In addition, the issues of the presentation of the branch office and the Applicant's insubordinate reaction to the questioning of these issues by Mr Benn, clearly form part of the reasoning for termination. I cannot conclude, however, that Mr Benn himself did not engage in abusive discussions with the Applicant when he queried his termination pay.

[40] The notification of the reason for the termination by Mr Benn to the Applicant was, I consider, thwarted by the Applicant absenting himself from the workplace on the afternoon of 9 April 2002, turning off his mobile phone and not being willing to discuss the issues found by Mr Benn on 9 April 2002. As a consequence, the company prepared the letter of termination in the knowledge that a significant amount of money was missing from the workplace without any notification from the Applicant that he had these funds.

[41] I acknowledge that the sequence of events whereby the Applicant left the workplace and made himself uncontactable, and the then unaccounted for $800, initiated the letter of termination. The Applicant was not provided with a clear opportunity to respond. However, he compromised any opportunity which he may have had by virtue of the abusive exchanges between himself and Mr Benn when the issues were raised, and by his leaving the workplace. I am also cognisant that the evidence of the Applicant does not provide a justifiable explanation as to why the money was removed from the workplace on 9 April 2002, rather than banked in accordance with the arranged procedure. There is also no appropriate reasoning from the Applicant as to why he did not meet his managerial obligations to process the expenses which he maintains account for the outstanding $204.

[42] I concur with the following submissions of the Respondent:

"Mr Benn attempted to give the applicant an opportunity to respond to the problems with security and the DRWBAL on 9 April 2002 but he left the premises to `get a drink'. Upon returning and being further confronted in relation to further irregularities, he commented:

`You can get fucked and so can the company. You're a cunt, and I'm not putting up with this shit.'

This conduct, if proved, is arguably repudiatory of the contract of employment. Notwithstanding that legal characterisation, the applicant was given his opportunity and chose not to communicate any comment of substance.

This is not a case of the class implicitly addressed by the Full Bench in Crozier v Palazzo Corporation Pty Ltd [Print S5897]. In that application, the Full Bench commented:

As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employed and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.

The applicant was not notified of the valid reason after the fact of termination. Mr Benn sought to discuss the various matters with the applicant on 9 April. The applicant chose not to communicate with Mr Benn on that occasion. He admitted as much in evidence in chief at PN899:

`Did you attempt to raise any of the matters in document JB9 with him?---With Mr Benn? There is no reconciling with Mr Benn. Trust me.

Rather, the applicant chose to absent himself from the workplace. He did not explain the irregularities to Mr Benn notwithstanding that Mr Benn was gravely concerned by this issue. He did not inform Mr Benn at that time or (by phone) during that day that he in fact had an amount of the respondent's revenue in his briefcase. These were not the actions of a diligent manager."[28]

SECTION 170CG(3)(d) - UNSATISFACTORY PERFORMANCE

[43] The Applicant had not been previously warned about the issues surrounding the termination. However, the issue of financial management and the procedure for banking was emphasised, and a procedure was specifically directed at a recent Managers Meeting. The issue had been predicated by a break-in at the Applicant's branch where company funds had been stolen. The company, however, is not without fault in its lack of vigilance in monitoring the Branch's revenue through the computerised cash book.

SECTION 170CG(3)(db) - ABSENCE OF DEDICATED HUMAN RESOURCE MANAGEMENT SPECIALIST

[44] The company, in terms of personnel, is not a large operation. The Respondent did not employ a dedicated Human Resources Manager at the time of the Applicant's termination. Mr Benn, the General Manager, had assumed most of these responsibilities. It was stated in the submissions that the company had:

"...no strict procedure pertaining to termination of employment".[29]

Mr Harrington noted, however, that a dedicated Human Resources Manager had been employed by the Respondent subsequent to the Applicant's termination.[30]

[45] In considering the substantive reasons for the termination, I have considered all of the evidence and documents in this matter, including the fact that the Manager accepted that he had responsibility for the financial management of the branch. The tasks involved in discharging these duties were not difficult. Due to his lack of adherence to the policy in banking and entering the revenue and expenditure, this resulted in an initial unexplained discrepancy of $830, of which at least $120 remains inconclusively unaccounted for. The Applicant's lack of responsibility in relation to the discharge of his duties was unacceptable given the earlier loss of $2353.15 in company funds at the Melbourne branch, after a prior break-in whilst the Applicant was manager.

[46] It was apparent from the evidence that the Applicant did invest significant time and effort in developing this branch. However, this does not mitigate his conduct and the breaches of money handling procedures.

[47] Having regard to all of the material before me, my findings are:

· In regard to s. 170CG(3)(a), the Respondent had a valid reason to terminate the Applicant's employment;

· In relation to s. 170CG(3)(b), the reasons for termination were set out in full in the letter of termination. The Applicant provided no justifiable explanation to properly explain his breach of procedure;

· In relation to s. 170CG(3)(c), the Applicant obfuscated his opportunity to respond by absenting himself from the workplace and becoming enraged when the issues were raised with him;

· in relation to s. 170CG(3)(d), the Applicant was not warned about his performance; however, the directive to Managers emphasised the banking process to be adhered to;

· in relation to s. 170CG(3)(da) and s. 170CG(3)(db), these subsections are not relevant to the extant proceedings;

· in relation to s. 170CG(3)(e), the issues of the prior robbery of the Applicant's site are contextually relevant in terms of examining the Applicant's breach of policy.

[48] I find that the termination was justified and was not harsh, unjust or unreasonable, and accordingly, I dismiss the Application.

Printed by authority of the Commonwealth Government Printer

1 Spencer C, Ben Clifford Sabeto v Waterloo Car Centre Pty Limited t/a Red Spot Rentals, PR924001.

2 Exhibit 4 - Statement of Mr. Jason Benn, paragraph 4.

5 Exhibit 4- Statement of Mr Jason Benn, paragraph 17.

7 Exhibit 4 - Statement of Mr Jason Benn, Annexure JB-7.

8 Exhibit 4 - Statement of Mr Jason Benn, paragraph 19.

9 Exhibit 4 - Statement of Mr Jason Benn, paragraphs 24-32.

10 Exhibit 4 - Statement of Mr Jason Benn, paragraph 38.

11 Exhibit 4 - Statement of Mr Jason Benn, paragraph 39.

12 Exhibit 4 - Statement of Mr Jason Benn, Annexure JB-10.

13 Exhibit 4 - Statement of Mr Jason Benn, paragraph 39.

14 Exhibit 1 - Statement of Ben Sabeto, paragraphs 10-13.

17 Transcript - 28 October 2002, PN1206 and 1215-1218.

28 Respondent's Closing Submissions, paragraphs 8-12.