Pouw, William v Strasburger Enterprises (Properties) Pty Ltd [1997] FCA 877

FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - JURISDICTION - whether binding settlement - whether agreement finalised - VALID REASON - CONDUCT and PERFORMANCE - whether employee's stock control and financial accounting methods at required standard - significant discrepancies and stock losses in audits beyond acceptable level - whether termination capricious - COSTS - whether steps taken or failed to be taken by the other side in the proceedings resulted in there being an incurring of additional costs - whether any step attributable solely to one or the other party - Workplace Relations Act 1996 ss170DC, 170DE(1), 170EA, 170EHA

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 POUW -V- STRASBURGER ENTERPRISES (PROPERTIES ) PTY LTD VI 1092 of 1997 PARKINSON JR MELBOURNE 19 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VI 1092 of 1997 ) GENERAL DIVISION ) B E T W E E N: William POUW Applicant AND: STRASBURGER ENTERPRISES (PROPERTIES) PTY LTD Respondent JUDICIAL REGISTRAR : PARKINSON PLACE : MELBOURNE DATED : 19 AUGUST 1997 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application made pursuant to Section 170EA of the Workplace Relations Act 1996 be dismissed. 2. No order be made as to costs. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VI 1092 of 1997 ) GENERAL DIVISION ) B E T W E E N: William POUW Applicant AND: STRASBURGER ENTERPRISES (PROPERTIES) PTY LTD Respondent JUDICIAL REGISTRAR : PARKINSON PLACE : MELBOURNE DATED : 19 AUGUST 1997 REASONS FOR JUDGMENT This is an application made pursuant to Section 170EA of the Workplace Relations Act 1996.('the Act') On 30 May, 1997 a binding settlement was alleged to exist in the proceedings. I ruled that no binding settlement of the proceeding had been reached between the parties and reserved my reasons. My reasons for so ruling are that I am satisfied that it was a term of the agreement between the parties that the formal terms of settlement be executed and by deed. No such execution of the terms occurred and I am not satisfied that there was a final or binding settlement as a consequence. Nor am I satisfied that the parties were at one as to the terms of the settlement and consequently I am not satisfied on the material before the Court that any agreement was finalised. I am satisfied that the parties were progressing negotiations as to terms. I turn now to consider the evidence in these proceedings and my findings as to fact. The applicant was employed by the respondent as the manager of its convenience store operation, located at Sandown. The respondent operates the convenience store under the trading name 'Quix' and is part of the Mobil Group of Companies. The applicant's duties included stock control, financial management and reporting and supervision of staff and sales. The Quix stores sell supermarket items, hot foods, together with petrol sales. The stores operate 24 hours per day, 7 days per week. The applicant commenced employment with the respondent on 11 September, 1995. He was initially employed as a Trainee Manager, receiving in house management training at Blackburn and then working at the Narre Warren and Karingal stores as a Trainee Manager. He was appointed Manager of the Sandown Quix Store in May, 1996. His employment was terminated on 12 December, 1996. The respondent contends it had valid reason for the termination of the employment based upon the work performance and conduct of the applicant. It contends that the applicant's stock control and financial accounting methods were not at the standard required and that despite attempts to resolve the problems arising in the stock control of the store, the applicant did not reach the standard required by the respondent. It further contends that discrepancies as to cash management, which were discovered by the respondent after the termination of the employment, make any order for reinstatement or compensation, in all the circumstances, inappropriate. The basis for the concern of the respondent was that significant discrepancies, ie. stock losses, appeared in the inventory audits undertaken by the respondent's internal store Auditor, Ms. Ciappara. The capacity of Ms Ciappara as an auditor was challenged by the applicant's counsel, on the basis that she had no auditing qualifications and that her audit result in relation to one item revealed an initial failure to account for an item subsequently found to exist. The evidence of Ms. Ciappara was received by the Court, not as expert evidence, but as evidence of the processes and procedures undertaken by the respondent in its financial management and controls. Whilst Ms. Ciappara had no tertiary financial management qualifications, she had extensive experience with and knowledge of the respondent's internal accounting procedures and stock control methods. I accept the evidence of Ms. Ciappara as accurate and accept that her evidence and the documents which she identified, properly identified the deficiencies in stock management at the Sandown store. The evidence of Ms. Ciappara was that the discrepancy levels were beyond those usually experienced at the respondent's stores and in excess of the margin for discrepancy of 1.2% allowed for by the audits. Three audits of the Sandown Store were conducted in each of September, October and November of 1996. (Exhibits R14, R15 and R16). The stock variance report of 4 September, 1996 showed a preliminary stock to invoice discrepancy of $9,461.00. This was a variance of 7.5 %. The evidence of Ms. Ciappara and Mr. Pupillo, the Regional Manager, was that a variance of 1.2% stock to invoice was recognised as being an acceptable variance level. The respondent, by its Regional Manager, Mr. Pupillo, discussed the September audit result with the applicant and discussed measures which could be taken by him to address the problem of such a high variance level and a number of recommendations were made by Mr Pupillo in this regard. The store was put on what was described as 'Maximum Financial Control'. This involved a more frequent auditing of the store and more stringent financial control required by the manager. By letter dated 4 September, 1996, (Exhibit R1), the applicant was advised by Mr Pupillo of the specific expectations as to his future management of the store.