Robert Giarrusso & Transport Workers Union of Australia v Ampol Petroleum (Victoria) Pty Limited [1995] IRCA 71

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 1126 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N: ROBERT GIARRUSSO & TRANSPORT WORKERS UNION OF AUSTRALIA Applicants A N D AMPOL PETROLEUM (VICTORIA) PTY LIMITED Respondent Reasons for Judgment 6 March 1995 PARKINSON JR This is an application made pursuant to S170EA of the Industrial Relations Act 1988 ("the Act"). The applicant seeks the following remedies: 1. an order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Act; 2. an order requiring the respondent to reinstate the employee in employment; 3. an order that the respondent pay compensation to the employee; 4. such other order or orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the respondent had not been terminated. This proceeding occupied seven sitting days of the court and the following witnesses were called to give evidence: Robert Giarrusso - the applicant Katherine Porter - consulting psychologist Bradley Grigg - terminal operator, Ampol (Newport) and union delegate (National Union of Workers) Danny Ryan - bulk fuel driver, Ampol (Newport) and union delegate (Transport Workers Union) Anthony Bonnici - blender, Ampol (Newport) Christopher Fennell - organiser, Transport Workers Union Renata Giarrusso - applicant's wife Ronald Wilson - service manager, Le Mans Toyota Peter Hahne - warehouse supervisor, Valvolene Christopher Marriott - operations manager (Victoria) for the respondent Teresa Netherton - lubricant despatch coordinator, Ampol (Newport) Michael Jamieson - logistics analyst (Victoria & Tasmania) for the respondent Bruce Jack - lubricants production foreman, Ampol (Newport) History of employment and background to termination. The applicant is 41 years of age, with a dependant spouse and two young children. He was employed by the respondent at its Newport Depot as a fuel delivery driver and had been so employed for a period of seven years. At the time of the termination of his employment he was the respondent's only bulk oil delivery driver. He worked the day shift and some overtime when it was available. His employment was terminated by the respondent on 11 July 1994 when he was summarily dismissed for serious and wilful misconduct. It is appropriate to set out the background to the termination of the applicant's employment. I commence with the events immediately leading up to the termination of the employment. The evidence in the proceeding was that there had been an ongoing undercover police operation at the respondent's Newport depot investigating allegations of theft of motor oil from the respondent. The allegations were that employees of the respondent were stealing oil for their own use or profit. Managers of the company were aware that this police investigation was occurring. It is apparent from the evidence in the proceeding that some surveillance of drivers was undertaken. Mr Giarrusso gave evidence as to his suspicion that he was being followed whilst carrying out bulk oil deliveries some time in May 1994. There was no evidence of that surveillance, however there was evidence that in April 1994 the respondent arranged for surveillance of the applicant by a private investigation agency. A report as to this surveillance was produced by the agency and provided to management of the respondent on 13 April 1994 (Exhibit M6). That report provides detailed information as to the applicant's movements on three days during the week ending Friday 8 April 1994. It provides no basis upon which it could be alleged that the applicant was involved in any criminal or illicit activity. The report was speculative and inconclusive at best. Subsequent to this report being received but, according to the respondent's witnesses, unrelated to it a police operation occurred involving searching by warrant the homes of a number of employees of the respondent for Ampol product. These searches took place on 30 June 1994. The applicant's premises were amongst those searched. The applicant's neighbours premises were also searched by consent. At the applicant's garage the police took possession of a drum of Ampol Solvent 143 and a small container of valvolene. These products were apparently seized on the basis that they were Ampol products. The applicant informed the police and subsequently the respondent that he had purchased the drum of solvent some time before through the staff discount purchase scheme operated by the respondent, and that the single packaged product had been purchased from the local supermarket. No charges were ever laid against the applicant by the police in relation to the investigation. On that same day the respondent was informed by the police that Ampol product had been found at the applicant's premises. The respondent, acting upon that information, called the applicant in and sought an explanation for the presence of the product on his premises. This meeting took place on 30 June 1994 and was conducted by the respondent's manager Mr Marriott. The applicant explained that he used the product because he serviced both his own and friends' vehicles at home. He explained that the drum of oil had been purchased by him some time previously through the respondent's discount purchase scheme and said that there would be an invoice copy for it somewhere. The applicant was advised that pending the investigation of the product found on his premises he would be stood down on full pay. He was required as a result to remain available to be contacted by the respondent and to telephone in to the respondent each morning. Reasons for the termination: S170DE(1) On 5 July 1994 a further meeting occurred between the applicant and Mr Marriott. This meeting was described by the latter as the "Ampol Inquiry". Also present at that meeting were Mr Ryan and Mr Annand. The applicant was questioned again as to the product found on his premises in respect of which repeated his explanation. He was informed that despite searching no such invoice had been located. In addition a number of other matters concerning the applicant's journeys and times for trips were raised. The evidence of the applicant, which I accept, is that a long list of dates was read out to him and he was asked for an explanation of the length of time taken to complete a particular job or run on that day. The evidence was that Mr Marriott read from a document which subsequently turned out to be a handwritten version of a performance report prepared by Ms Netherton from her diary notes (Exhibit M9) in respect of the applicant, but that this document was not made available to the applicant and no opportunity was given to him to access trip sheets or delivery dockets which would have assisted him in identifying the detail of the journeys in question. I am satisfied that the matters put forward by Mr Marriott at those meetings as constituting unexplained delays and deviations in the applicant's trips were viewed by him as somehow relevant to the allegations and investigation of missing Ampol product. I do not accept that they were being relied upon as work performance issues significant enough on their own to warrant termination of employment. I am satisfied that the circumstances of the suspension and the termination of the employment of the applicant arose directly out of the police investigation, the private investigator's report, and conclusions drawn by the respondent in relation to Ampol products found on the applicant's premises and alleged delays and journey deviations. It should be noted that the respondent's evidence was that at the time of the termination a search had been done of staff invoices and no invoice for the purchase alleged by the applicant was located. As will be seen this was not to remain the case and the respondent's conclusions as to the unauthorised possession of the product was wrong. I discuss this later in this decision. On 11 July 1994 a further meeting occurred. The applicant was handed a letter (Exhibit Y6) advising him of the termination of his employment. Having regard to the nature of the case put by the respondent in these proceedings it is appropriate to set out in full the letter of termination received by the applicant that day and the reasons for the termination contained in that letter. It read as follows: "Dear Mr Giarrusso, On Thursday 30th June 1994 I received information from the Victoria Police that you had at your home a number of Ampol products including a 20 litre container of Solvent 143. Additionally it has recently come to my knowledge that you have been engaging in repeated and substantial diversions whilst driving the company delivery vehicle on company time. Due to the seriousness of the information provided, you were stood aside on pay until the outcome of the Ampol enquiry was completed. During this enquiry your explanations have been sought and received. Having regard to all of the information available to me including your explanations I am satisfied that:- a) you had at your home unauthorised property of Ampol (Solvent 143) and b) that whilst on company business and on company time you made unauthorised and repeated stops to complete "personal business". In reaching a decision I have also taken into account your unsatisfactory record of service. The company considers these matters constitute a (sic) serious misconduct and your employment is terminated immediately. Your are requested to collect all personal belongings, return company issued items, and leave Newport Terminal immediately. Monies outstanding to you will be paid at the earliest time.