COMMISSIONER J F GREGOR: On 5 June 1998, Daniel Lesley Gray (the applicant) applied to the Commission for an order pursuant to s.29 of the Industrial Relations Act, 1979 (the Act), on the grounds that he had been unfairly dismissed from his employment with BGC (Concrete) Group of Companies (the respondent). Until his dismissal on 22 May 1998 the applicant had been continually employed by the respondent for approximately five years.

The respondent confirmed the termination of the employment of the applicant in a letter dated 8 June 1998. That letter (formal parts omitted) encapsulates the respondent's reasons for the termination and is incorporated here under:

I refer to our meeting on 22 May 1998, which was the last of several meeting between you and a representative of BGC. I confirm that BGC terminated your employment effective from 22 May 1998 on the following grounds:

1. You were involved in the batching of concrete on Tuesday, 12 May 1998 and again on Saturday, 16 May 1998 without ensuring that the loads were being recorded on the production report.

2. You were, at all times, aware of the critical importance of ensuring, as the batcher of concrete, that all concrete taken from the plant must be properly documented before the concrete leaves the site. You were responsible for doing so to ensure that concrete could not be stolen or otherwise misappropriated.

3. Your involvement, together with other persons, in causing or permitting concrete to be taken from the batch plant without proper documentation was inexcusable and was to the detriment of this company.

4. Your responses to our enquiries were both evasive and unsatisfactory.

In the circumstances, we consider you have breached the fundamental term of your employment with the company, and confirm that your employment was terminated forthwith (Exhibit F1).

The applicant says that the dismissal occurred as a result of accusations made against him by the respondent that he conspired with two other employees of the respondent on two separate occasions to steal cement products from the respondent's Canning Vale premises. The applicant denies that he was involved in such a conspiracy and claims that at the time of the second alleged incident he was merely acting on the instructions of his supervisor to batch cement products and to not concern himself with the issuing of the proper documentation. The supervisor claims that he told the applicant that he, the supervisor, would complete the relevant paperwork the following Monday.

The respondent says that information had reached the technical manager of suspicious practices in batching and despatching concrete. The technical manager had, in turn, passed this information on to the respondent's management which included Mr Andrew Teo, Company Secretary, and Mr Philip Hobbs, General Manager. Those employees who had allegedly been involved or had been present at the plant on the days in question had been called in to an interview with Mr Teo and Mr Hobbs to answer questions relating to these practices. The respondent claims that four of the five people called were interviewed twice, with the fifth person only being interviewed on one occasion and that all those interviewed were made aware of the reason for the interview.

As a result of these interviews, Mr Teo and Mr Hobbs reached the conclusion that there had been an incident on 12 May 1998 and again on 16 May 1998 when loads were batched without the required recordings being made on the production report. The respondent says that the employees involved, of which the applicant was one, were aware of the critical importance of ensuring the proper documentation of all concrete taken from the plant and in the applicant's case, he was aware of his responsibility to ensure that the proper records were made to prevent the product being stolen or otherwise misappropriated. He had not done so, and as there was evidence that he was involved with other persons in causing or permitting concrete to be taken from the plant without proper documentation, his conduct was inexcusable. It was so because there was no other way the company could ensure that it received proper payment for its product. When the applicant had been given the opportunity in a series of interviews to state his position his answers had not been satisfactory on the contrary he had been evasive. This was considered by the respondent to constitute a fundamental breach of the applicant's duty to the respondent and it led to the respondent reaching the conclusion that the applicant ought to be dismissed.

The applicant, through his evidence and his advocate, Mr Ferguson told the Commission that he had been employed by the respondent for 5 years. The majority of his work was as a truck driver, delivering concrete, but on occasions he acted as a relief batcher or dispatcher when required. The first incident that led to the applicant's dismissal took place on Tuesday 12 May 1998 when driver, Shane Murray, by his own admission, took concrete from the plant without the correct documentation or payment.

The applicant acknowledged that he had been acting as batcher for a period of time during that day, but denies being in that job when the concrete had been loaded into Mr Murray's truck without proper documentation. The applicant claimed that at some time between 12:30pm and 12:45pm he had received a telephone call from one of his sons advising him that his other son was in hospital and was seriously ill. At that time he left the batcher's hut to take a walk and think about this news. He says he then washed his truck before leaving the plant at approximately 4pm to visit his son in hospital. Mr Murray claims that the person who batched his load was not the applicant but another employee, a Mr Ray Farrow, and that at no time that day did he see the applicant. The applicant claims that the only other person working on site that day capable of doing the batcher's job was Ray Farrow.

The applicant's son who made the telephone call, Daniel Strawbridge, gave evidence that he telephoned his father on 12 May 1998 between 12:30pm and 12:45pm. He said he remembered the time because his job involved taking orders for car spare parts over the telephone, and he logged the date and time of each call. There is controversy about the time the call was made. The respondent claims that initially the applicant told them he received the telephone call around 3.15pm. He later recanted and claimed that the call was received earlier. When asked, Mr Strawbridge denied having spoken to his father about the timing of the telephone call on any occasion after 18 May 1998. In cross examination, however, when asked how he knew what time he received the telephone call from his son, the applicant said that his son had told him the time.

The second incident occurred on the following Saturday, 16 May 1998. The applicant agrees that he was batching for the entire day and had Mr Terry Gedge acting as his supervisor and as the relief dispatcher. Mr Gray says that as he was leaving the batch hut on his way home that afternoon he was approached by Mr Kevin Murray who asked for a load of concrete. As the work day was finished, the computer into which load details are in-putted and receipt dockets issued had been closed down.

Standard practice is for an order to be placed with the dispatcher, this is entered into the computer, receipt documentation is issued and this ensures that the appropriate person is charged for that load of concrete. A driver is not to leave the plant premises without this documentation although witnesses have agreed that this has happened on a number of previous occasions and the documents had been collected later or brought to the delivery place by another driver.

In this instance the applicant claims that Mr Gedge, as his supervisor, instructed him to meet Kevin Murray's load request. Mr Gedge said he intended to fix up the paperwork on Monday but forgot to do so. Mr Gedge also admitted that he would have relied on the honesty of those people involved to ensure proper records of how much concrete was taken by Kevin Murray.

The respondent's representatives say they became aware of the incidents described above when the company's technical manager, Mr Gabriel Valentini advised them that unnamed sources had told him. The respondent then undertook to conduct interviews with those people who either were allegedly involved or who had been at the plant on either of those two days. The respondent says that before the start of all the interviews, each employee was advised why they were being interviewed. In addition the respondent had one of the company's secretaries, Ms Rosalie Ernshaw, take notes to ensure that proper records of the proceedings were kept.

The respondent asserts that Mr Gray was interviewed on three separate occasions, with each interview concentrating on one of the two alleged incidents of theft. During these interviews the applicant was shown written records from Tuesday 12 May 1998 which detailed each batch order and the time it was taken. The respondent asked the applicant whether he recognised certain orders as being in his own handwriting. These orders were written down at 12:30pm, the period in which the applicant had denied working as the batcher as he claimed he was walking around the plant contemplating about the telephone call about his critically ill son.

The respondent says that during these interviews the applicant was given every opportunity to categorically deny that the handwriting on the batch records after 12:30pm was his. The respondent says that had the applicant at any time given a definite and straightforward reply to the questions asked, and in so doing had denied that the records contained his handwriting, no further action would have been taken. In the event the applicant chose not to take the opportunity to refute the allegations made to him. Because of this, together with other information discovered during the investigation the respondent decided to dismiss him. Another employee, Mr Ray Farrow was given the opportunity to resign after his interview rather than be dismissed by the company and did so. Terry Gedge, who admitted his complicity to some extent in the incident of Saturday 16 May 1998 and to directly giving the applicant direction to load concrete without proper documentation, was not dismissed.

The applicant's representative submitted that in failing to call the police in to investigate what it believed was a conspiracy by the applicant and others to defraud it by the organised theft of concrete from its Canning Vale plant, the respondent had failed to provide the applicant with the protection such official procedures would offer. The respondent therefore had denied the applicant procedural fairness.

Before I deal with my findings as to the credibility of witnesses and analyse the evidence, I need to discuss the law to be applied. The test for determining whether a dismissal is unfair or not is now well settled. The question is whether the respondent has nevertheless acted harshly, unfairly or oppressively in its dismissal of the applicant. It is for the applicant to establish that the dismissal was in all these circumstances unfair. The test for ascertaining whether a dismissal is harsh, oppressive or unfair is that outlined by the Industrial Appeal Court in Undercliff Nursing Home v. Federated Miscellaneous Workers Union of Australia (1985) 65 WAIG 385. The question to be answered is whether the right of the employer to terminate the employment has been exercised so harshly or oppressively or unfairly against the applicant as to amount to an abuse of the right. A dismissal for a valid reason within the meaning of the Act may still be unfair if, for example, it is effected in a manner which is unfair but if the employment has been terminated in a manner which is procedurally irregular that will not of itself necessarily mean the dismissal is unfair (see Shire of Esperance v. Mouritz (1991) 71 WAIG 891 and also Byrne v. Australian Airlines (1995) 65 IR 32). In Shire of Esperance v. Mouritz, Kennedy J also observed that whether an employer, in bringing about a dismissal, adopted procedures which were unfair to the employee is but an element in determining whether the dismissal was harsh or unjust.

Although the respondent has not accused the applicant of theft, the grounds upon which it relies to dismiss him as described in the letter of termination (Exhibit F1) highlight the applicant's responsibility to ensure records were kept so that concrete could not be stolen or otherwise misappropriated. Because of his unsatisfactory answers during his interviews and on the basis on other information that it collected, it was concluded that the applicant's involvement with other persons led to or caused, or permitted concrete to be taken from the batch plant without proper documentation, was inexcusable. Upon this premise, the respondent concluded that there had been a fundamental breach of a term of employment. Although the applicant is not accused of theft in specific terms, the allegations made against him are tantamount to that and therefore I need to examine the law relating to situations of alleged theft in the workplace. There are two decisions directly on point.

The first is British Home Stores Limited (BHS) v. Burchell (1978) IRLR 379. This is a decision of the English Employment Appeal Tribunal.

"what the Tribunal have to decide every time is, broadly expressed, whether the employer who has charged the employee on the ground of the misconduct in question (usually, though not necessarily dishonest conduct) entertained reasonable suspicion amounting to a belief in the guilt of the employee of the misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer at the stage at which he formed that belief on those grounds, at any rate at the final state at which he formed that belief, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating these three matters, we think, who must not be examined further_" [emphasis in original]._

The principles in the decision of BHS v. Burchell have been followed in this jurisdiction in TWU v. Tip Top Bakeries (1993) 73 WAIG 1632.

In the Tip Top Bakeries case at p 1632, the Commission cites a lengthy extract from Fielding C in the Full Bench case of "C" v Quality Pacific Management Pty Ltd (which adopts the BHS principles) and goes on to say at p 1633 "... the Commission, presently constituted, respectfully accepts and adopts, for the reasons given by Fielding C. (op cit), that a reasonable belief of theft by an employer after a proper consideration of all the circumstances by the employer, constitutes sufficient grounds for dismissal of the employee" [emphasis added].

In my decision in FMU v. Board of Management, Fremantle Hospital (1993) 72 WAIG 1418. I proposed four heads of test. These are set out on p 1420. They are:

(b) was the employer given a proper opportunity to be heard and to put his/her own case prior to termination?

(c) has the employer at senior level considered all the relevant factors including consideration of lesser options, and also balancing the employment history of the worker concerned with the behaviours complained of in the instance leading to the termination?

(d) was the termination made in accordance with a well-known policy?

It is well settled in decisions of the Commission that its task is to assess whether the dismissal was industrially fair in the accepted sense, irrespective of whether there is a breach of contract or not. That assessment is to be made not according to technical rules but according to equity and good conscience and the substantial merits of the case as is recited in Section 26 of the Act. The employer is not required to act as a police officer or lawyer would, but as a reasonable employer in the same circumstances.

Matters such as this are not to be determined as if the applicant was on trial for stealing, rather the issue is whether in dismissing him, the respondent acted fairly in the accepted industrial sense. The Commission is not to answer that question by reference to what it would have done in the circumstances, but by reference to an objective standard of whether the respondent acted as a reasonable employer in the circumstances disclosed in these proceedings would have acted.

I have mentioned previously the Undercliffe case of which the preceding is the ratio. I suggest too that the comments made by Denning MR in British Leyland UK Ltd v. Swift (1981) IRLR 91 at page 93 are relevant, even though they were made in relation to United Kingdom legislation. In discussing how a reasonable employer would have acted, Denning MR said `it must be remembered that in all circumstances, there is a band of reasonableness within which one employer might reasonably take one view and another quite reasonably take a different view'.

Above I refer to my decision in FMU v. Board of Management, Fremantle Hospital (ibid) in which I proposed that there were four tests to be applied in these circumstances. The first was "Was the termination lawful under the Award". I mention that because Mr Ferguson who appeared for the applicant made submissions relating to clause 32 of the Transport Worker's General Award 10 of 1961. I do not intend to canvass that argument because I am unsure on the evidence before the Commission whether in fact the Award is binding. In any event I am unsure as to the weight that Mr Ferguson says the Commission should give to this submission. As I understood from his argument, he says the respondent should have applied words in the clause. According to Mr Ferguson the respondent should have called the police to investigate its concerns. Those concerns appear to suggest that the applicant was involved with other persons to defraud the respondent by allowing concrete to be stolen or misappropriated. Because the respondent did not do so, the applicant was denied the 'protection of the procedures'; which I take it to mean the procedures set out by the clause, and therefore was denied procedural fairness. In this context, Mr Ferguson also made references to suspension. I do not need to canvass these issues as there is no matter before me in relation to enforcement of Award rights. What I must do is focus on whether there has been unfairness to such an extent that the Commission should interfere with the employer's right to run its business and in doing so, I am required to apply the concept set out in the Undercliff Case of a fair go all round. This means a fair go to both the employer and the employee. The concept does not deprive the employer of the right to ensure its employees perform their duties honestly and in the economic interests of the employer. This is particularly so in case such as this where the only way the employer can ensure proper payment is received for its product is if the accounting documentation that is designed to be used is in fact used properly at all times.

The Commission heard a total of 13 witnesses, 8 called on behalf of the applicant and 4 on behalf of the respondent. I do not intend to make individual findings about their evidence, I will deal with that in detail in the analysis which follows. As a general comment I observe that the writing which follows will indicate a concern with the quality of the evidence which was led by the applicant on his behalf and in fact the evidence of the applicant himself. The respondent complained that one of the reasons which led it to reach the conclusion to terminate the services of the applicant was his evasiveness and failure to answer questions during a number of interviews held with him prior to making its decision to dismiss. The applicant continued the same behaviour in his evidence before the Commission. I have doubts about the quality of the evidence that he bought to the Commission. It seems that his memory on a number of occasions is self-serving. I say that for these reasons.

It is clear that the respondent dismissed the applicant for two reasons. First for permitting Shane Murray and Kevin Murray to take concrete without documentation recording the taking of that concrete and secondly, as I have noted before, when he was interviewed in relation to those matters he gave the impression of evasiveness which led the respondent to conclude that he was most likely being dishonest in the matter. This was probably sufficient for a termination to take place, but the respondent examined the matter in much more detail. It has to be accepted that in the context of the business operated by the applicant that the taking of concrete without documentation is very serious. It is tantamount to theft, as there is no other way the product can be traced. The product is created through the batching operation and therefore comes into existence at the hands of the batcher and that is the place where records are required to be initiated about its existence and later sale.

The Commission was told in relation to the events of 12 May 1998 that Shane Murray took concrete, he claimed on one occasion but the evidence of Mr Defanti who was called by the respondent indicates that he remembers Murray taking concrete at a time earlier than the time Murray admits. I find that it more likely than not Murray did take concrete on two occasions on 12 May 1998 but even if he did not, there is still the question of the proper records of the concrete he admits to taking. The applicant simply denies that he batched concrete for Mr Murray. He could not say in his evidence who did batch the concrete and no one was called by the respondent to provide the Commission with evidence as to who did. The next flaw in the applicant's evidence arises in relation to when the applicant says that he received information about his son's illness. His story is that he was told this about 12.30pm whereas in his interviews with the respondent he said he was told it was about 3.15pm and he left the plant soon after. Mr Strawbridge, his son, is unequivocal when he says that he made the phone call at 12.30pm. In the period soon after midday, the batch records indicate hand writing which the applicant does not verify as his own, however, he was equivocal about whether the hand writing was his or not. I find it more likely than not it was his hand writing out to the mouth of the applicant himself who when asked if the hand writing was his, he said "I don't know, it doesn't look the same, it might be, it might not be". The applicant continued the equivocation he exhibited during the interviews with the respondent during his evidence. This behaviour assists me to reach the findings I have.

There are some doubts in my mind about the question of the creditability of the applicant when he talks about the amount of time he spent in the yard before he went to see his son in hospital. While the applicant did not advise the Commission of the precise nature of the illness suffered by his son, the implication is that his son's behaviour had been of a concern to the family for some time and that behaviour may have led to the situation that the son found himself in so far as his health is concerned. One can appreciate that a father would be distressed when receiving such information and may not behave in a rational way when being confronted with it and this may explain why for up to 3 hours he appeared to hang around the yard on his own evidence, doing nothing. However, the other view is that it might well be that when he said in his interview with the respondent on 25 May 1998 that his son had rung at 3.15pm, he knocked off, went home and then went straight to the hospital, that he was telling the truth. That being so, and I am inclined to think it is, his evidence about his presence on the site during the 3 ½ hours takes on a doubtful quality and raises questions in an adjudicator's mind why such obfuscation should be attempted.

If the applicant had remained on the site for 3 hours, it is clear that batching had continued. He had no explanation who did the batching after he had stopped. It would seem that a simple way to support his contention would be to call that person to corroborate his evidence. A likely person is Mr Farrow, who is a dispatcher, who could do both jobs, but this would involve him forging the applicant's signature for the whole time, even for legitimate loads, and this does not seem to be an eventuality that is worth serious consideration.

For the reasons that I have set out above, it can be concluded that the applicant was involved with batching on the afternoon of the 12 May 1998 and on the balance of probability that he was therefore involved with the batching of concrete for Shane Murray.

Another concern that I have about the applicant's evidence is the amount of concrete that was taken by Mr Murray which was an unreasonable amount to use to allegedly dry out a load. The end result was Murray was given concrete which could not be described as waste and that amount of concrete was anywhere between .8 cubic metre to 1.4 cubic metres. All of the events led the Commission to conclude that the events of that day can not be put down to sloppy documentation. The explanations of Mr Murray, although I do not need to make findings about whether they are truthful or not, raise extreme doubts in the mind of the Commission. It is passing strange that the loads upon which there have been doubts about the applicant's involvement, the one on the Tuesday with Shane Murray and one on the Saturday with Mr Murray's brother, are both the subject of unsatisfactory explanations.

Finally there is ample evidence to justify the conclusion that there was concrete taken from the respondent's premises without proper documentation. It was documentation for which the applicant was responsible. He was given every opportunity by the respondent to deal with these allegations. The respondent, in my view, conducted the investigation in a proper manner by arranging to have an interview with all of the people who may be involved. It advised them at the commencement of the interview the purpose of the interviews. There would be no doubt in the applicant's mind if he could not give an adequate explanation that his job was a risk with such senior members of the company conducting an investigation. The respondent insured that there were records made of the interviews and although those records are not of the standard of a statement of evidence, they do not have to be, as an employer is not to be regarded as a policemen or a lawyer in conducting such interviews and maintaining records.

The questions is, did the employer act within a band of reasonableness in dealing with the applicant. In my view, and I so find, it did so. He was given every opportunity to make whatever statement he wished. He did not take the opportunity to do so. At the time the respondent made the decision to dismiss it was in possession of information which would allow a reasonable person to make a decision of the nature that it did. It decided the applicant was more likely than not in fundamental breach of his contract of employment. I find that conclusion was open to it at the time. The applicant's conduct in the hearing before the Commission does not give rise to any new information which would cause me to reach a conclusion that the respondent was incorrect when it dealt with the applicant in the first place. The applicant has not been unfairly treated and the application will be dismissed.

Mr M Hotchkin, of Counsel, appear on behalf of the respondent.