CASES: Selvachandran v Peteron Plastics Pty Ltd

t had been loaded the previous evening. Mr McPhee, the managing director, was made aware of this and the security incident the previous night. Mr Hayes, the general manager, also became aware of the incident. He directed Mr Cook, the personnel manager, to investigate the matter. Mr Cook liaised with the security manager, Mr Curphy. Around mid-day the applicant was invited to have a discussion with Mr Cook. Mr Cook and Mr Curphy discussed the matter with the applicant. They put to him that two white boxes of beef had been found in his possession the previous evening and that in breach of the company policy he did not have the relevant paper work. The applicant disputed the type of meat and said that it was low-grade meat in brown boxes. Mr Cook later dispatched Mr Curphy to go to the applicant's home to inspect the cartons. He advised the applicant the matter was serious because it was in breach of the company's policy which was that no product was to leave the premises unless it had been properly paid for. Later that day there was a meeting between Mr Hayes, the applicant and Mr Cook. The applicant, as he had done earlier, explained his actions on the basis that it was common practice for himself and other staff to take meat and to fix up the paper work the following day with Mr Dixon. Mr Hayes advised him that the matter of a staff member taking company property from the plant was a serious matter and that the managing direct, Mr McPhee would need to be involved. He advised the applicant that he was to be suspended until he heard further from the company. A matter in dispute in the evidence was when Mr Dixon, the foreman, was spoken to about the company policy. Mr Hayes said he spoke to Mr Dixon on Wednesday. He also said that in the conversation with the applicant and Mr Cook on the Tuesday he told the applicant that the applicant's understanding of the policy was not confirmed by Mr Dixon. Mr Dixon was somewhat confused in his evidence as to when the matter was first raised with him, but I am satisfied on the basis of the evidence of Mr Hayes that he had discussed the policy with Mr Dixon before he took the decision to suspend the applicant on Tuesday. After the discussion with Mr Hayes and Mr Cook on Tuesday afternoon, Mr Hayes suggested to the applicant that he should consider to travelling to Blayney in southern New South Wales to discuss with Mr McPhee directly whether he would be entitled to remain employed with the respondent. Mr McPhee divides his time between the Wodonga plant and another plant at Blayney. On Thursday, 6 July, the applicant attended the plant at Wodonga and had a short discussion with Mr Hayes. He then had a discussion with Mr McPhee. Mr McPhee's version of the discussion, which he places on the actual day after the incident, was that the applicant mentioned what had happened in relation to the meat. The applicant said "sometimes we take meat off site and report it to a foreman the next day". Mr McPhee had replied "that is news to me" and asked who the foreman was. The applicant had replied Mr Dixon. Mr McPhee had then asked would he like to have Mr Dixon present to verify the matter. The applicant had declined and said "under the circumstances it is best I resign". Mr McPhee was strongly challenged in cross-examination as to when the events occurred. It was clear he had little knowledge of the investigations already undertaken for the respondent by Messrs Cook, Hayes and Curphy. He maintained however that he had "a vivid recollection" of his discussions with the applicant. Mr McPhee maintained that he gave the applicant the opportunity to call the foreman, Mr Dixon, which the applicant had declined. He maintained he had later spoken to Mr Dixon who had confirmed that there was no such arrangement with the applicant. Mr Hayes gave evidence that later in the morning he discussed the matter with Mr McPhee who told him that the applicant was "finished". Mr Hayes had then arranged for the applicant's termination money to be sent to him by letter dated 11 July. Ultimately in this proceeding it comes down to a question of whose version of events is to be accepted. The critical issue is whether there was in place at the respondent a policy that meat was not to be taken off the premises without documentation and if that policy was enforced. Alternatively the issue is whether, in relation to the applicant and others, the policy was at times honoured in the breach. I am satisfied that there was such a policy. It stands to reason that a company experiencing pilfering would seek to have a policy that gave itself control over product leaving the premises. That there were problems of pilfering and stock loss was stated in the evidence by Mr McPhee and Mr Hayes. The witnesses for the respondent all confirmed the policy regarding product leaving the premises. Only the applicant said that he had an arrangement with Messrs Dixon and Koschell that he could take product out and arrange the paperwork the next day. The applicant did not call any corroborating evidence on this point. The applicant's evidence of non-compliance with the policy for people other than himself was unconvincing. He mentioned that Mr Dixon told him that a meat inspector was to be allowed to take delivery of a carcass of meat on one occasion. There were no other details provided and such an incident is consistent with Mr Dixon knowing that the goods were to leave the premises and were thus, to that extent, verified. No details of any other staff doing what the applicant did on the night were provided by him. In deciding whose version of events to accept an issue on which there was a stark difference was the colour of the two boxes. I find it difficult to accept the applicant's evidence that the boxes were brown. Both the security guards said they were white and they had no motive to lie about the matter. The fact that the applicant showed the respondent's security officer a brown box or boxes at his home does not assist because the applicant had the opportunity to dispose of the white boxes. Mr Doyle had no reason to invent his evidence that the boxes were stamped "chilled boneless beef". In terms of the overall version of events the applicant gave no explanation as to why he was nervous on the night. If the matter was so routine to him it is difficult to see why he should be "shaking". A further matter is that no explanation was given as to why Mr Seymour, who was the driver of the car, was not called. He must have seen the boxes and the failure to call him without explanation leads me to draw an inference that he would not have assisted the applicant's case. Next, the applicant's explanation as to why he would need 54 kilograms of frozen grinding beef, was slight. In evidence he said that he told Mr Hayes that it was for some catering interest he had been developing. The applicant's counsel did not put this to Mr Hayes. In general, in a number of minor but significant respects the applicant's evidence of his version of the lapses of the policy was not put to the respondent's witnesses and smacked of recent invention. Having regard to these considerations and the overall demeanour of the witnesses, where there was a conflict on the evidence I prefer the evidence of the respondent's witnesses. Mr McPhee was clearly confused on the sequence of events, but I prefer his version of events of the final interview with the applicant. Messrs Dixon and Koschell were adamant that the applicant did not have an exemption from the policy. While it could be said that they have an interest in the preservation of their jobs, their demeanour and presentation were such that their evidence is to be preferred. I prefer Mr Hayes' evidence when he denied saying to the applicant that "if it was his decision he could have his job". I am satisfied that Mr Hayes suspended the applicant and told him that as it was a serious staff matter it was for Mr McPhee to make a decision as to the applicant's future. I do not see anything in the evidence of Mr Koschell that he rang the applicant on the day after the incident to ascertain whether "anyone has taken meat out the night before" to show that Mr Koschell was aware that there was a practice that this was occurring. This applies particularly given the direct denials by Messrs Dixon and Koschell that they had any special arrangement with the applicant. Did the respondent have a valid reason to terminate the applicant's services? The respondent has the onus of proof that it had a "sound, defensible or well-founded reason" to terminate the applicant's services, see Selvachandran v Peteron Plastics Pty Ltd (Industrial Relations Court of Australia, Northrop J, 7 July 1995) and ss170EDA(1) and 170DE(1) of the Act. Counsel for the applicant said there was some confusion in the reason and that it was not clear if the respondent regarded the applicant as having been guilty of theft or just in breach of company policy regarding meat purchases. Mr McPhee, who while clearly mistaken about the date of his conversation with the applicant, maintained that removal of meat without paper work was equivalent to theft. In my view it matters little how the actual policy is characterised. The important point is that the respondent treated breaches of the policy as grounds for dismissal. The reason was that once a breach of policy was established it is difficult to see how it could be other than theft. The respondent clearly characterised breach of the policy as misconduct. The question for determination is whether the respondent has properly formed the view that the applicant had, in fact, been guilty of misconduct. Mr McPhee said that he became aware of the incident on the day after it occurred. He could not remember who told him. Mr Hayes gave evidence that he spoke to Mr McPhee on the day after. One reason he spoke to McPhee was because of the stock discrepancy on the export shipment the previous evening. This is a crucial factor in characterising the respondent's response to the matter. Mr McPhee was aware of the stock discrepancy and he was aware that the applicant had been apprehended with meat in his possession without proper paper work. On the Thursday the applicant told Mr McPhee his version of events. Mr McPhee responded with his understanding of the policy. He asserted that it was in breach of the policy. Regardless of whose version of events is accepted thereafter in terms of whether the applicant resigned at the meeting with Mr McPhee or not, I am satisfied that at that point Mr McPhee formed the view that the applicant had breached the policy. Subsequently the applicant was advised that he was dismissed. Mr McPhee's conclusion, which was ultimately carried into effect by Messrs Hayes and Cook and conveyed by letter of 11 July, was "sound, defensible and well founded" because I am satisfied that there was a policy relating to the purchase of meat by all employees. It was a reasonable policy and the applicant's dismissal for breach of that policy was a reasonable response in the circumstances. I am satisfied that the investigation undertaken by the respondent was reasonable. All relevant facts were ascertained; the applicant knew what was in issue. I am satisfied that Mr McPhee had not prejudged the issue. His conclusion that applicant had not satisfied him that his actions were within company policy was a reasonable and sound one. His conclusion that the applicant's actions warranted dismissal was also reasonable in the circumstances. The respondent thus had a valid reason for the applicant's dismissal. It has discharged its onus of proof under s170DE(1). Harsh, unjust or unreasonable? My finding that the respondent has discharged its onus of proof throws the onus of proof on the applicant that the dismissal was harsh, unjust or unreasonable. The importance of the policy to the respondent was emphasised in the evidence. The respondent has a stock pilfering problem. Meat is a very negotiable commodity. The applicant knew of the respondent's concerns about theft because of his own earlier discussions with Mr McPhee and I infer that he was aware of stock pilfering as he was in charge of the load-out section. The applicant has not satisfied me that a policy of dismissal for breach of the policy is a policy that is unreasonable. It is manifestly reasonable and accords with community values. The applicant's good service, while a consideration, is not one that can be decisive in the face of his staff position, the importance of the policy and his breach of it. The applicant has therefore failed to discharge his onus of proof that his dismissal was harsh, unjust or unreasonable. Procedural fairness It was faintly argued that the respondent failed to comply with s170DC of the Act. I reject this. The applicant was given a proper opportunity to respond to the issue that was putting his job in jeopardy. He met both Mr Hayes and Mr McPhee. The requirements laid out in the recent decision of Wyndham Lodge Nursing Home Inc v Reader (Wilcox CJ, Ryan and North JJ, 15 April 1996, unreported) have been complied with. S170DC of the Act has been complied with. I am further satisfied that the respondent, having formed the view that the applicant was in breach of its policy, was entitled to characterise that breach as serious misconduct. It was therefore entitled to summarily dismiss the applicant and there has been no breach of s170DB of the Act. The applicant has not satisfied me that there was any breach of the Act. The application must be dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding eight (8) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 1 May 1996 Solicitors for the Applicant: Tietyens Counsel for the Applicant: Mr S Stuckey Solicitors for the Respondent: Tanya Cirkovic & Associates Counsel for the Respondent: Ms T Cirkovic Date of hearing: 29 & 30 April and 1 May 1996 Date of judgment: 1 May 1996