Sargon John and Dome Engineering Pty Ltd [1994] IRCA 172

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NO. NI 638 of 1994

Between: SARGON JOHN Applicant And: DOME ENGINEERING PTY LTD Respondent Before: Judicial Registrar Walker Place: Sydney Hearing Date : 21 December 1994 REASONS FOR JUDGEMENT This matter came before me on the 22 November 1994 for hearing and during the course of the proceedings the parties decided that they should have further discussion concerning settlement. Although this matter had been to a mediation prior to the hearing both the applicant's solicitor and the industrial advocate representing the respondent did not attend and the process had been unsuccessful. The applicant had been employed by the respondent for the last 13 years as a press operator and alleges that on the 5 July 1994 at about 9.00 am he went to the lunch room for his tea break to find that the door was stuck. He then alleges that he pushed it and gave it a kick as it sometimes gets stuck and then realised it was padlocked. He then approached the foreman to unlock the door. He further alleged that he did not damage the door and that it already had holes in it and the latch had screws missing. Later that day his employment was terminated, for serious misconduct in that he wilfully damaged company property. The respondent tendered a photograph of the alleged door, which indicated a small depression in a rather old shabby wooden door. The applicant's affidavit states that on the 16 October 1994 he was contacted by the police and he took part in a record of interview, but the police have not taken any action. The respondent filed six affidavits, two by the general manager Mr Wheeler and one each by four fellow employees of the applicant. These affidavits are remarkably similar as the deponents allege they witnessed Mr John kick the door and that the general manager Mr Wheeler had called a meeting of the staff on the 29 June 1994, a week before the alleged incident and had warned the staff that anyone caught vandalising any property would be instantly dismissed. Having had the opportunity of reading the affidavits filed by both parties and having listened to the evidence given by the applicant I felt that I had a reasonable understanding as to the issues in this case. Mr Salmon, the respondents advocate, indicated he would have six witnesses plus a police Officer. I had read the affidavits of the witnesses and could not see how a police officer who was not an eye witness to the alleged incident could help the respondent's case. During cross examination of the applicant Mr Salmon was attempting to get the applicant to agree that the respondent company had informed its employees a week before the alleged incident, that wilful damage to company property would result in termination of employment. I immediately attempted to test Mr Salmon in light of the similarity between this case and BOSTIK (AUSTRALIA) P/L v GORGEVSKI (1992) 36 FCR 20 and in particular to the statement by Sheppard and Heery JJ that, "Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable." Mr Salmon then said he was going to distinguish this case on the basis that there was an implied term in the applicants contract of employment not to wilfully destruct company property. The transcript from this point on is reproduced hereunder, MR SALMON: Yes, I intend to refer to Bostik, Mr Registrar, down the track on the basis of distinguishing it from this case. THE J. REGISTRAR: This case has me somewhat worried really. The applicant was employed for 13 years with this firm. MR SALMON: Yes, indeed. THE J. REGISTRAR: 13 years and the allegation is that he kicked in an amenities block door and he was instantly dismissed. MR SALMON: Yes. THE J. REGISTRAR: And this case has not settled. MR SALMON: This case is not settled. There was an attempt to settle through mediation before Tomlinson JR, Mr Registrar, but it was not resolved at that stage. THE J. REGISTRAR: So it has been to mediation? MR SALMON: There has been mediation, yes. MR TAYLOR: Yes, sorry Mr Registrar, I was not at that meeting and I do not think my friend was either and I am not sure exactly what transpired. THE J. REGISTRAR: It just seems to me that this could be a long case and really from looking at the affidavits, prima facie there is a pretty good case against the respondent, I would say. To prove there is a valid termination in these situations is quite difficult. Referring back to the Bostik case, how can you distinguish that case? MR SALMON: If I could perhaps turn to those arguments. THE J. REGISTRAR: I am not interrupting your examination, I just think this is a case that - we could go all day on this and really, the facts are quite straightforward. MR SALMON: Well, Bostik raised the situation of instant dismissal for smoking in a non-smoking area. In our submission, the applicant is party to a contract of employment that contains implied terms. There can be no clearer implied term in a contract of employment than wilful destruction of company property. THE J. REGISTRAR: Kicking in an amenities block door as wilful destruction? MR SALMON: Yes, we have got evidence of the four witnesses, we have got a photo of the damage done. The police of NSW have investigated a criminal complaint against the applicant. If a criminal investigation does not constitute a valid reason. THE J. REGISTRAR: Was this taken to the police because an employee kicked in a door?