Desmond Patrick Bugno v Sunraysia Roofing Pty Ltd [1995] IRCA 115

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI 2158 of 1994

BETWEEN:

DESMOND PATRICK BUGNO Applicant

AND

SUNRAYSIA ROOFING PTY LTD Respondent

REASONS FOR JUDGMENT (EX TEMPORE) (Revised from Draft Transcript)

17 March 1995 Judicial Registrar Staindl

On 26 October 1994 Desmond Bugno had his employment summarily terminated for misconduct. For the previous 10˝ years he had been employed as a roof tiler with a company known as Sunraysia Roofing Pty Limited. On the day his employment was terminated the applicant was handed a letter which reads in so far as is relevant:

"Dear Des

We wish to advise that we intend to terminate your employment as of 4pm Tuesday 25/10/94 due to the misconduct at Allan Palmer's job on Friday 21/10/94.

Unfortunately the complaint by the Builder of theft of building materials from the site has put our Company in a position where we have to take action to ensure that our credibility in the market place is not jeopardised (sic) and to ensure that all other employees understand the consequences of this type of action.

We enclose pay cheque which includes all moneys owed to you.

Yours faithfully

Ray Cohrs."

The applicant gave evidence in these proceedings and in my view he was an honest and creditable witness, and I accept his evidence. He stated that on 21 October 1994 he had been working on a job where some lead was removed from the roof. There were two pieces of lead, one about 2 feet square but with a large hole in it. This hole had been due to a flue which had previously protruded through the house roof, but which was to be removed and discarded. The owner of the premises had given this direction to the applicant. This piece of lead was obviously scrap. However, there was a second piece of lead measuring about 18 inches x 12 inches which did not have a hole in it. The builder intended re-using this piece of lead as flashing next to a valley in the roof line. The applicant did not realise this, as his experience in the past with this type of roof was that iron would be used. I accept that the applicant considered this second piece of lead was also scrap.