Rich River Golf Club (ACN 001 357 071) v Lynette Anne Power - [2002] NSWIRComm 225 - NSWIRComm 1995 case summary — Zoe

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Rich River Golf Club (ACN 001 357 071) v Lynette Anne Power

[2002] NSWIRComm 225

Industrial Relations Commission (NSW)|1995-05-12|Before: Sams DP

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1995-05-12

Before

Sams DP

Catchwords

06/05/2002
06/06/2002
06/07/2002 DATE OF JUDGMENT: 09/06/2002

Source

Original judgment source is linked above.

Catchwords

06/05/200206/06/200206/07/2002 DATE OF JUDGMENT: 09/06/2002

Judgment (251 paragraphs)

[1]

CITATION : Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2002] NSWIRComm 225 APPLICANT: PARTIES : Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch (on behalf of Joy Maree Humphries) RESPONDENT: Cootamundra Ex-Services and Citizens Memorial Club Ltd FILE NUMBER: 1852 of 2000 CORAM: Sams DP Termination of employment - unfair dismissal - allegations of fraudulent activity - credibility of witnesses - serious and wilful misconduct - obligations in employment relationship - police investigation - criminal charges dismissed - whether allegations proven - onus of proof in civil proceedings - respondent's investigation of allegations - procedural fairness - gravity of misconduct - whether reinstatement practical - principles considered. CATCHWORDS : Held, allegations proven on the balance of probabilities - applicant's denials of wrongdoing not credible - serious and wilful misconduct justified dismissal - gravity of misconduct outweighed issues of procedural fairness - employee breached duty to act with good faith and fidelity - dismissal not "harsh, unreasonable or unjust" - application dismissed - proceedings concluded. LEGISLATION CITED : Industrial Relations Act 1996 Evidence Act 1995 Rich River Golf Club (ACN 001 357 071) v Lynette Anne Power (unreported) Full Bench, Matter IRC640 of 1995, 12 May 1995 Antonakopoulos v State Bank of New South Wales, 91 IR 385 Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch (on behalf of Maree Ploner) and Westport Bowling Club Limited [2001] NSWIRComm 205 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Briginshaw v Briginshaw (1938) 60 CLR 336 Perkins v Grace Worldwide (Aust) Pty Ltd, 72 IR 186 Davey v Enacon Parking (unreported) Connor C, Matter IRC1866 of 1995, 13 December 1995 Australian Workers' Union, New South Wales Branch v Colgate Palmolive, 27 IR 420 Byrne & Anor v Australian Airlines (1985) 185 CLR 10 Loty & Holloway and Australian Workers' Union (1971) AR (NSW) 95 Bi Lo Pty Ltd v Hooper, 53 IR 224 Four Sons Pty Limited v Sakchai Limsiripothong, 98 IR 1 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 Wang and Others v Crestell Industries Pty Ltd and Another, 73 IR 454 CASES CITED : Shop Distributive & Allied Employees' Association v Jewel Food Stores, 22 IR 1 Franklins Limited v Webb, 72 IR 257 Lawrence v Catholic Education Office [2002] NSWIRComm 115 Hill and Department of Juvenile Justice [2000] NSWIRComm 128 Day v Lumley Life, 90 IR 70 North v Television Corporation Ltd (1976) 11 ALR 599 Blyth Chemicals v Bushnell, 49 CLR 66 Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited t/as TNT Express [2002] NSWIRComm 46 Burke v McGirr (1995) 87 IR 54 Oswald v NSW Police Service (1999) 90 IR 42 Johnson v Catholic Education Office, Diocese of Parramatta, 87 IR 57 Abboud v The State of New South Wales (Department of School Education) 92 IR 32 Buckman v Burdekin, 85 IR 418 Wilson v Department of Education and Training, 100 IR 1 D & R Commercial Pty Ltd v Flood, 113 IR 344 Foster and Woolworths Limited [2000] NSWIRComm 208 Rapp v Wauchope RSL Club, 81 IR 11 HEARING DATES: 06/04/2002; 06/05/2002; 06/06/2002; 06/07/2002 DATE OF JUDGMENT: 09/06/2002

[18]

14 The criminal proceedings were conducted over four days and concluded on 20 February 2001 when his Worship, Mr P Moon, dismissed all charges against the applicant. It is pertinent to quote his Worship's concluding comments from the extract of his Bench Summary (Ex"4"): Of course these are serious criminal allegations and the prosecution bears the heavy onus throughout the case to prove each and every element of each offence beyond a reasonable doubt. There is no onus on the defendant to prove anything. She has pleaded not guilty to each of the offences. She made no admissions to the police relating to the charges. Of course the prosecution case in this matter is a circumstantial one. They rely on the defendant being present at the club on the days of deficiencies that have been recorded. The prosecution case is that the defendant was the common factor in all the matters. The prosecution rely on her presence at the club at the time of each deficiency being recorded. The Crown case is that she was the only person present on each occasion that the transactions were recorded and that there was no return of alcohol as recorded on the till. Of course the prosecution must prove beyond a reasonable doubt that she and only she was responsible for the deficiencies. Evidence given to the Court clearly shows a system existing at the Cootamundra Ex-Servicemens Club which was fraught with dangers. The system of balancing the tills, the mixing of funds and the accountability of the till operators certainly left the club vulnerable to losses. Many, including the defendant, would have had access to the tills and the club's monies to incur the losses that have been complained of. The system in place at the time of these alleged offences makes it impossible to find with any certainty who caused the deficiencies. Any one of a number of persons, including the defendant, had the opportunity to commit the offences but I have to be satisfied beyond a reasonable doubt that this defendant committed the offences as charged. I certainly have some doubts as to what the defendant's role was and some suspicion but, as has been stated, suspicion is not sufficient to satisfy the Court beyond a reasonable doubt that the defendant committed each or any of the offences as charged and EACH OF THE INFORMATIONS WILL BE DISMISSED.

[154]

Similarly statements are made in other cases such as M v M (1988) 63 ALJR 108 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. In the last cited case, Mason CJ, Brennan , Deane and Gaudron JJ stated (at 449 - 450): The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud (See, eg, Hocking v Bell (1945) 71 CLR 430, at 500; Rejfek v McElroy (1965) 112 CLR 517, at 519 - 521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear ( Briginshaw v Briginshaw (1938) 60 CLR 336, at 362; Helton v Allen (1940) 63 CLR 691, at 701; Hocking v Bell (1944) 44 SR (NSW) 468, at 477 (affirmed in Hocking v Bell (1945) 71 CLR, at 464, 500); Rejfek v McElroy (1965) 112 CLR, at 521; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at 539 or cogent ( Rejfek v McElroy (1965) 112 CLR, at 521) or strict ( Jonesco v Beard [1930] AC 298, at 300; Briginshaw v Briginshaw (1938) 60 CLR, at 362; Helton v Allen (1940) 63 CLR, at 711; Hocking v Bell (1944) 44 SR (NSW), at 478 (affirmed in Hocking v Bell (1945) 71 CLR, at 464, 500); Wentworth v Rogers (No 5) (1986) 6 NSWLR, at 538) proof is necessary "where so serious a matter as fraud is to be found" ( Rejfek v McElroy (1965) 112 CLR, at 521). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct (See, eg, Motchall v Massoud [1926] VLR 273, at 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (footnotes incorporated)

[167]

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey , J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority. In Shop Distributive & Allied Employees' Association v Jewel Food Stores , 22 IR 1, the former Industrial Commission in Court Session said: We consider 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. In coming to such a conclusion, a prudent and fair employer will take into account, where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made. We consider that this same standard should be applied by industrial tribunals when considering reinstatement. 150 In Franklins Limited v Webb, 72 IR 257, after discussing both these authorities, the Full Bench said at p261: Those authorities deal with different points but are nevertheless both applicable to circumstances where summary dismissal has occurred for alleged cause. In this case, the employee was dismissed by the payment of one week's wages in lieu of notice but obviously for cause. The reasoning of the Commission in Court Session in Jewel Food Stores , in our view, is directly apposite and we would apply to these circumstances the same consideration with respect to onus as was adverted to by Hungerford J in Gartrell White.

Rich River Golf Club (ACN 001 357 071) v Lynette Anne Power

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Judgment (251 paragraphs)

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Cases Cited (26)

Cited By (7)