Alex Jovcevski v Bell Street Bus Co Pty Ltd [1995] IRCA 595

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 4454 of 1995 B E T W E E N: Alex JOVCEVSKI Applicant A N D BELL STREET BUS CO. PTY LTD Respondent REASONS FOR DECISION 10 November 1995 PARKINSON JR This is an application made pursuant to S170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent as a bus driver between November 1993 to the date of the termination of employment on 11 August 1995. During the period of his employment between November 1994 and the date of termination, the applicant's ticket and cash returns for each monthly period was significantly in deficit. The evidence is that some deficit returns were recorded up to November 1994, and that the applicant was interviewed in respect of these earlier shortages by a previous manager. The evidence was that there were continuing shortages in the applicant's monthly returns from February 1995 onwards as follows: Period 8 - February 1995 $669.90 Period 9 - March 1995 $1,551.80 Period 10 - April 1995 $1,129.10 Period 11 - May 1995 $947.55 Period 12 - June 1995 $2,009.20 In the last two weeks of employment the discrepancies amounted to a sum in excess of $800.00. I am satisfied that these discrepancies existed and that there was not provided to management a satisfactory explanation in this regard. It is apparent from the evidence that the system of ticket sales on a bus where one person is responsible for issuing tickets, collecting money and driving the vehicle inevitably involves an element of inaccuracy or discrepancy, and that this is in part recognised by the existence of a tolerance of up to $10.00 in discrepancy before the driver may be required to reimburse money. However, the evidence of Mr Hogan, an experienced driver of 19 years service with the company, was that any discrepancy would at most be in the nature of $70.00 -$80.00. This, he said, was an outside or largest likely amount and was irregular in occurrence, and that for such significant amounts of money to be missing as $70 - $80 there would need to be a loss of or theft of tickets. I am satisfied that this was not the case in this matter. I accept Mr Hogan's evidence in these proceedings in its entirety. It is also clear that the discrepancies in the applicant's returns were significantly greater than this outside figure provided by Mr Hogan. I accept that the applicant as the driver was responsible for and was required to account for the tickets and money in his custody. Arrangements were made so that these items could be securely stored within the relevant monthly period and prior to end-of-month balancing. I am satisfied that the issuing procedure regarding the quantity of tickets originally obtained both by the driver and the respondent from the Public Transport Corporation was adequate and does not account for the discrepancy involved. No explanation was given to the respondent by the applicant as to the reason why his returns were so outside of the usual. Nor in this proceeding was any reason proffered which might explain the discrepancy or suggest at least a reason unconnected with the performance or conduct of the applicant. The respondent in its letter of termination dated 11 August 1995 (Exhibit A1) advised that the reason for the termination of the applicant's employment was as a result of neglect of duty. The letter of termination made it clear that the reason related to the discrepancies which existed in the returns. Having regard to the above matters, I am satisfied that the respondent had valid reason for the termination of the applicant's employment I turn now to consider the application of S170DC and S170DE(2). I am satisfied that the applicant was interviewed by management of the respondent in relation to the cash discrepancies in the period April 1995 to July 1995 inclusive. I accept Mr Griffiths' evidence in this regard. The applicant did not deny that such interviews took place, rather he was unable to recall whether they had occurred. Mr Griffiths was able to inform the court in detail as to the discussions that took place at the interviews, including offers of assistance given to the applicant and supervisory measures proposed. In this regard he also noted each interview in his diary. Mr Griffiths' evidence of the ongoing process of discussion of these matters with the applicant was confirmed by the evidence of Mr Hogan, the workplace delegate for the Transport Workers Union of Australia. Mr Hogan's evidence was of an extensive process of discussing the concerns as to the cash discrepancies, together with numerous opportunities being accorded the applicant to explain or to suggest possible explanations. The applicant was asked whether he had any financial difficulties or other problems, including gambling problems, and he denied this was the case. These interviews took place on 9 March 1995, 19 April 1995, 18 May 1995, 5 June 1995, 11 July 1995 and 1 August 1995. At the meetings in June and July the applicant was informed that if the situation did not improve his employment was likely to be terminated. The union delegate was consulted by management, involved in discussions with the applicant, and utilised to some extent as a go between for the purpose of resolving the problem. On Thursday 10 August 1995, there was a further discrepancy in takings over a very short period and the applicant was informed that he was to be taken off the road, with access to tickets and cash removed. The applicant left the workplace of his own volition soon after being informed of this fact. His evidence was that he did not return to work the following day because of illness relating to the circumstances at work. The respondent, after making enquiries and discussing the matter further with Mr Hogan, the union delegate, determined that the applicant's employment ought be terminated. He was advised of this fact in writing on Friday 11 August 1995. I am satisfied that there was an ongoing process of discussion in relation to the discrepancies, together with a number of warnings, culminating in the decision on 10 August to remove the applicant from his duties. In the circumstances the applicant had been given extensive and sufficient opportunity to be heard in relation to the discrepancies. I am satisfied that he was well aware of the concerns of management and the nature of the allegations made in relation to his conduct. The reason for the termination expressed was neglect of duty arising from the discrepancies in the returns. The figures were significant, the problem was not being resolved, and the losses to the respondent were ongoing. The meeting with the applicant and his workplace delegate on 10 August 1995 in relation to the matter was sufficient in my view to meet the obligations of S170DC and S170DE(2). The applicant was given an opportunity to be heard. The applicant did not attend at work after that interview, nor on the next day. I am not satisfied that there has been a failure to comply with S170DC, nor am I satisfied that, having regard to the investigation and counselling over 10 months and in view of the lack of any explanation or account for the discrepancy, that the decision to terminate could in any way be characterised as harsh, unjust or unreasonable. In my view the substantial discrepancies constituted such a neglect of duty that the respondent was entitled to terminate the applicant's employment without notice. The application made pursuant to S170EA is dismissed. I certify that this and the preceding four (4) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate: Dated: 10 November 1995 APPEARANCES Solicitors for the applicant: Patrick Robinson & Co Counsel appearing for the applicant: Mr R Frazzetto Representative appearing for the respondent: Mr J Griffiths