Michael Mokdsi v Public Transport Corporation [1995] IRCA 617

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3522 of 1995 B E T W E E N : MICHAEL MOKDSI Applicant AND PUBLIC TRANSPORT CORPORATION Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 23 November 1995 REASONS FOR JUDGMENT On 26 June 1995 in the Magistrates Court at Melbourne the applicant pleaded guilty to and was convicted of theft and fined $1250. The theft charges were laid on or about 14 April 1995 after the applicant confessed to both police and the respondent, his employer, that over a period of some months he had stolen a wide variety of items of property belonging to the respondent, storing the items in his home garage. In cross-examination the applicant conceded that he had stolen at least 51 categories of items of property; including gloves, five white protective suits, a hot water urn, a truck battery, a carpet sweeper, 79 hacksaw blades, a tool box, not to mention an extraordinary variety of other goods and implements (see Exhibit R3). Indeed, such was the quantity taken a truck was required to remove the load from the applicant's garage. An application was filed in this Court on the same day as the applicant's conviction, such application alleging that on 19 April 1995 the respondent unlawfully terminated the applicant's employment. As a consequence of the alleged contravention of the provisions of Division 3 Part VIA of the Industrial Relations Act 1988 (the Act) the applicant asked this Court to reinstate the applicant. The applicant was employed by the respondent (and its predecessors) for some 13 years. In April 1995 his classification was that of motor lorry driver stationed at the respondent's Dudley Street depot. Every second or third week the applicant was rostered to work at the Spencer Street depot where maintenance work is performed on country carriages. The applicant has admitted to the systematic theft of property from his employer over at least the 4 to 5 month period referred to in the charges laid against him. In cross-examination, having told the Court that the thefts were confined to a 4-5 month period he further conceded that a red tool box, which he described as a first aid kit for a truck, had, in his words, "stopped with me" from about 1990. Notwithstanding the admissions made, the applicant insisted that he was, during the period of his employment, a good employee with no warnings given or disciplinary action being taken against him by him employer. He did however eventually concede that good employees do not steal from their employers. The applicant's dishonesty and extent of that dishonesty was not discovered by the respondent until 13 April 1995. In the months preceding the arrest of the applicant it was the respondent's uncontested evidence that there had been thefts of significant items from the respondent's Dudley Street storeroom, prompting a police investigation and steps by management to notify the employees that they could lose their jobs if caught stealing. No direct evidence was called to show that the applicant was aware of the police investigation or that he had been in any of the groups of employees directly notified of the consequences of being caught stealing from his employer. In any event, it was conceded by the applicant that he knew when he took the items from his employer that he could be dismissed from his job. The applicant's dishonesty was not discovered until he quite brazenly drove his employer's vehicle into the respondent's depot at Dudley Street and, on seeing a tool cabinet he fancied for use in his home garage, he loaded the item onto the vehicle and, during working hours, drove the vehicle to his home, deposited the tool box there and returned to work. The tool cabinet is approximately 1 metre high, 600mm wide and 900mm deep with wheels enabling it to be moved around the depot. It is valued at $650.00. It had not even been unpacked from its wooden crate when the applicant seized the opportunity to add to his growing collection of his employer's goods. Even a thief and an employee who has repeatedly breached the trust afforded him by his employer is permitted to expect procedural and substantive fairness in the termination process. However, that does not automatically mean that where there is uncontested evidence of serious and wilful misconduct an employer, to act fairly, is required to search for and offer alternatives to termination or be judged to have acted harshly, unjustly or unreasonably. Theft is a serious breach of any contract of employment and systematic theft is an abhorrent abuse of the trust expected between an employer and an employee. The High Court of Australia has recently handed down its decision in the matters of Byrne v Australian Airlines Limited and Frew v Australian Airlines Limited (1995) 131 ALR 422. In both the majority and minority decisions of the High Court the Court accepted the employer's contention that "... whilst the adoption of an unfair procedure may render a dismissal, harsh, unjust or unreasonable, whether it does so or not must depend on the whole of the circumstances." (See pages 434 et seq. and 463 et seq. of the decision). The Court was at all times considering matters occurring prior to the enactment of the Act, such matters being governed by an Award provision prohibiting harsh, unjust or unreasonable termination of employment by the employer. At first instance the trial judge in the abovementioned cases found that there was sufficient evidence to show that the employees were guilty of pilfering in the course of their employment. Accordingly, for the Full Court to determine whether the termination procedure adopted resulted in their dismissal being unreasonable it was incumbent on the Full Court to first look at whether the judge at first instance was in error in finding the misconduct proven. In their joint judgment at pages 463 and 464 of the decision, Justices McHugh and Gummow said: "The propositions we have set out support the submissions for the respondent that it was necessary for the Full Court to look at the whole of the relevant circumstances which were taken into account by the primary judge in determining that there had been no breach of the Award; and, in particular, that it was an error to reverse that ultimate holding purely for reasons associated with what are identified as procedural defects in the steps taken by the respondent to dismiss the appellants. Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable. The submissions for the respondent in the present appeals appear to concede this. But the burden of the respondent's submissions is that there was an error in determining the issue without regard to the very material circumstance of a finding of the primary judge as to the complicity of the appellants in pilfering. Those submissions should be accepted. This means that the primary judge was bound to consider whether, on the evidence given at trial, the respondent could resist the allegation of breach of Clause 11(a), provided that the evidence concerned circumstances in existence when the decision to terminate employment was made. A further consequence is that it remains for the Full Court to determine whether Hill J erred in his finding of fact as to complicity in pilfering. If those findings were upheld it would be very difficult to see how the dismissal of the appellants could be regarded as harsh, unjust or unreasonable." Clearly where this Court deals with an alleged contravention of s.170DE(2) of the Act, once the evidence of serious misconduct is conceded, procedural defects, if any, in the steps leading up to the termination and any other mitigating circumstances must be carefully weighed against the gravity of the misconduct (see also Bostik (Aust) Pty Ltd v Gorgevski (No. 1) (1992) 36 FCR 20 at page 28). It was the applicant's case that S170DE(1) was conceded, inasmuch as it was not contested that the respondent had a valid reason for terminating the applicant's employment. Notwithstanding this concession, the applicant alleged breaches of S170DC and S170DE(2) of the Act. The decision of the High Court is directly relevant to the consideration of the matters contained in s.170DE(2) of the Act. However, s.170DC confers a statutory right to procedural fairness at least to the extent that it requires an employer before termination for reasons related to an employee's conduct or performance to give the employee the opportunity to defend himself or herself against the allegations made. So that in this case the applicant at the very least was entitled to the opportunity to defend himself against the allegations of theft from his employer. As was noted by Wilcox CJ in Gibson v Bosmac 130 ALR 245 at page 252 s.170DC - "... is intended to be applied in a practical, common sense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section." The evidence in the present case demonstrates that the applicant had on no less than two occasions a full opportunity to defend himself against the allegations of theft. On both occasions he admitted the thefts and offered apologies to his employer for his conduct. Written Notice of Termination The respondent defended the proceeding on a number of bases. The first was that the application made in respect of an alleged unlawful termination on 19 April 1995 was made well outside the time limit referred to in S170EA(3) of the Act. There have been a number of decisions in the Victorian division of the Court on the issue of whether particular documents satisfy the requirements of written notice contained in s.170EA(3)(a) of the Act. Notably, there is the decision of Parkinson JR in Denavi v John Stephens Catering Equipment Pty Ltd (unreported), VI 1663 of 1995, 6 June 1995 followed by me in my subsequent decision in Hunt v Steggles Limited (unreported), VI 2196 of 1995, 9 August 1995. The following passage at page 7 et seq. of the decision in Hunt's case summarises the position adopted in both cases: "In reaching her decision in Denavi's case Judicial Registrar Parkinson expressed the view at page 4 of the decision that the purpose of the abovementioned requirement is to:- "ensure that an objective mechanism exists by reference to which the operation of time limits on proceedings may commence...." At page 5 of her decision the Judicial Registrar went on to say:- "the Act contains at s.170DB provisions in relation to the period of notice required to be given to employees in certain circumstances. To a large measure this section is concerned with the manner in which the amount of notice is calculated and the circumstances where notice is not required to be given. Regard is had to the reasons for the termination for the purposes of the calculation of the period of the notice entitlement, an example of this being the provision for no notice in circumstances of serious misconduct. It is clear that to effect a termination lawfully under this Act, notice of the type prescribed by s.170EB(sic) must be accorded to the employee. It would be unusual outcome if the "written notice" prescribed by s.170EA(3) was satisfied by document which contains no reference to the very matters prescribed by s.170DB. The use of the word "written" and "notice" in my view require that the fact of the decision made by the employer to terminate the employment, together with the basis upon which the termination is made, i.e. with or without notice, and the date of its effect, be clearly be spelt out in any document which purports to be a written notice of termination for the purposes of s.170EA(3) of the Act....." In principle I accept the Judicial Registrar's analysis of the requirements of notice noting also that the respondent in its submissions to the Court conceded that at the very least the written notice must contain clear and unequivocal advice that the employment of the employee has been terminated." The respondent also relied on comments made by me in my decision in Cooke v Royal Melbourne Hospital (unreported), VI 2106 of 1995, 2 August 1995 where I said at page 2 of that decision: "The applicant contends that written notice of termination, if any, was not received. He did, however, receive on 10 March 1995 a certificate of service from his employer dated 6 March 1995. I was referred to a number of decisions including that of Keely J in Pam Coker-Godson v National Dairies Limited 57 IR 186 concerning the providing of an extension of time. However I have no difficulty in finding on the facts of this case that the date of the receipt of certificate of service, if there was a termination of employment in the sense required by Act is the first date from which the time for making an application could be calculated. The application was filed on 20 March 1995 and, accordingly, there is no necessity to consider or make any order extending the time for making of the application pursuant to S170EA(3)(b)." In the abovementioned case the first of any written material received from the respondent by the applicant was received after termination and on 10 March 1995. Within ten days of this the applicant's application was filed. On those facts it was not necessary to hear argument on or consider whether the document received was sufficient to comply with the requirements of the written notice provision. This being so the case should be confined to its facts. Prior to the hearing date no application was made to extend the time within which the applicant could make his claim under s.170EA(3)(b) of the Act, bearing in mind the delay between the alleged date of termination on 19 April 1995 and the filing of the application on 26 June 1995. It was apparent at hearing that the applicant was not on notice of any defence seeking to argue that the application was out of time. Not surprisingly, the applicant made oral application to extend the time for making his application pursuant to s.170EA(3)(a) of the Act. I did not hear from either party on the question of any explanation the applicant had for the delay or any prejudice either party suffered, as it appeared from the matters raised by both Counsel representing the parties that the applicant had never received any written notice of termination from the respondent. The only documents relied upon by the respondent were the Employment Separation Certificate (see Exhibit R1) and a copy Statement of Termination Payment completed by it in compliance with the requirements of the Australian Taxation Office (see Exhibit R2). It was agreed that these documents or copies of them were forwarded to the applicant and received by him in early May 1995 after the events alleged to have led to a termination at the initiative of the employer on 19 April 1995. The only other decision relied on by both Counsel in their final submissions to the Court was that of Gordon-Walker v Dependable Security Services Pty Ltd (unreported), Murphy JR, VI 2586 of 1995, 21 September 1995 which supports the view that any written notice should be prospective in order to comply with the provisions of the Act. So far as the Court was concerned (and Counsel for the parties) the abovementioned decisions (as well as that of the Full Court in Liddell v Lembke, 127 ALR 342 where the Court confirmed that written notice is required before time runs against an applicant under s.170EA(3) of the Act) represented the status quo on this question; although the respondent persisted with its view that the two documents received by the applicant in early May were, without more, sufficient to constitute such written notice. Because of the abovementioned approach the Court did not require the applicant to call evidence particularly on the question of any explanation for delay and generally on the matters raised for consideration and set out in Hunter Valley Developments Pty Ltd v Cohen (1994) 3 F.C.R. 344. In these circumstances it was indicated to the applicant's Counsel that if the Court was required to consider an extension of time claim it would grant the applicant the opportunity (and this also applied to the respondent) to call appropriate evidence and make further submissions. Since the conclusion of the evidence in this case I have received a copy of a decision of a Judge of this Court, Justice von Doussa, in Nelson v Scholle Industries (unreported), NI 1234R of 1995, 17 October 1995 reviewing a decision of a Judicial Registrar to dismiss an application for an extension of time. In Nelson's case the respondent relied on two documents the first of which was, on the date of termination signed by the applicant but not retained by him. The document named the employee, noted that he was terminated and set out the reason for same and included other employment details, such as the date of termination. On the evidence the applicant understood the document and returned it signed to his employer on the same day. His Honour found at page 6 of his decision that the employer: "... put in his hands a statement in writing giving unequivocal advice that his employment had been terminated. In my view, in the events that happened that day regarding that document, the applicant received written notice of the termination." Notwithstanding his findings on the abovementioned document Justice von Doussa went on to say that in his view in that case the Employment Separation Certificate constituted written notice of termination. This was despite the fact that the document was not supplied by the respondent to the applicant until a day or two after the termination and therefore could not be prospective notice of termination. The question of whether or not the document was or could constitute prospective notice of termination was not argued before his Honour. His Honour went on to say in that decision at pages 6 and 7: "That document, like the previous one, had a dual purpose but in my view the fact that there is a dual purpose does not prevent the document constituting written notice for the purposes of paragraph 170EA(3)(a). The Employment Separation Certificate stated the employee's details including the applicant's name, his full address, the date when he commenced work and the date when he last worked. In its text the document posed the question "Was employment terminated due to ... and then sets out under a number of bullet points, "shortage of work?" "unsuitability for this type of work?" "unsatisfactory work performance?" and "misconduct?", with boxes against each question to be ticked for a positive or negative answer. The form was completed with the tick answering "yes" to the question "Was the employment terminated due to unsatisfactory work performance?". Then follows a further question and answer: "Give reason for voluntary termination of employment or for unsatisfactory work performance: As per our Warning Procedure Attendance Policy." The document is signed on behalf of the respondent." The present case is complicated by a number of factors distinguishing it from Nelson's case. The first is that the respondent's principle argument is that the applicant resigned on 19 April 1995 on the tender of a signed resignation (see Exhibit A1). It is entirely consistent with such a defence that there was no prospective or subsequent written notice of termination in so far as the respondent was concerned. S.170CB of the Act states that - "An expression has the same meaning in this Division as in the termination of Employment Convention." Article 3 of the Convention in turn states that - "For the purpose of this Convention the terms "termination" and "termination of employment" mean termination of employment at the initiative of the employer." Where s.170EA(3)(a) refers to written notice of termination it must be taken to mean termination of employment at the initiative of the employer. It follows from this that if there was a voluntary resignation, and that is a finding supported by the facts in this case, the purpose or one of the purposes of the Employment Separation Certificate was not and could never have been written notice of termination in accordance with the Act. The second matter is that the Employment Separation Certificate, on the evidence of Graham Thomas Mills, was not correctly completed by him. His evidence on this matter was not seriously challenged in cross-examination. What he told the Court was that the Employment Separation Certificate was completed by him at the same time as he completed Employment Separation Certificates for at least two other employees who had taken voluntary redundancy packages and whose termination was due to shortage of work. His evidence was that in error in the applicant's Employment Separation Certificate he ticked the box for "shortage of work?" in response to the question "Was the employment termination due to:". He compounded that error by then also ticking a negative answer to thequestion "Did the employee cease work voluntarily?". I have misgivings about accepting outright any proposition suggesting that documents sent to an employee after the date of the purported termination (whether that be by way of voluntary termination or termination at the initiative of the employer), which do not correctly state the reasons for termination, can be construed as written notice of termination for the purposes of the Act. At best one of the purposes of the documents may be seen as being confirmatory of certain matters but nonetheless in this case, on the respondent's evidence, incorrectly state the reason for the termination. Taking these matters into account as well as the respondent's insistence that it did not have any intention of, nor did it terminate the applicant's employment on 19 April 1995 because the applicant voluntarily resigned, I am not prepared to treat the documents relied on as constituting written notice of termination for the purposes of the Act. If I am wrong in coming to the abovementioned conclusion, on the material before the Court my findings on the merits of the substantive application set out below make it unnecessary for any further evidence to be heard from either party on any extension of time application. Those findings primarily accept that the Court does not have jurisdiction to proceed to hear a claim for unlawful termination. As already foreshadowed the respondent argued that there was a jurisdictional question to be met by the applicant inasmuch as the applicant gave written notice of resignation on 19 April 1995 and, any termination of his employment, was not at the initiative of the respondent but a voluntary act on the applicant's part when faced with the prospect of his immediate superior recommending to the respondent's management that the applicant's employment be terminated. Lastly the respondent, if the action of the respondent on 19 April 1995 amounts to a termination at its initiative argued that, first, there was compliance with S170DC of the Act and secondly, the termination in all the circumstances was not harsh, unjust or unreasonable. The credibility of the witnesses The applicant gave evidence on his own behalf. The respondent called evidence from - (a) Barry Vincent Evans (Evans), who is and was the manager of the respondent's carriage maintenance depot at West Melbourne from approximately April 1993; (b) Graham Thomas Mills (Mills), who has been employed by the respondent over some eight years and is the carriage maintenance depot administrative officer. He and the applicant agreed they were friends; and (c) Barry Donald James (James), who is the respondent's Group Manager, Human Resources in the respondent's Rail Vehicle Management Division. His role is to advise line management on the application of the respondent's policies. There were a number of significant inconsistencies in the evidence given by the applicant. As noted above the first was his claim to have only commenced pilfering his employer's property some 4 to 5 months prior to being caught. The retention by him of the red tool box or, as he described it, the truck first aid kit, from 1990 onwards clearly amounts to an intention to permanently deprive his employer of this property many years before he conceded the theft of any goods from his employer. The applicant denied returning to his place of employment on the Easter Sunday, which was the Sunday following him being charged with the theft offences on Friday 14 April 1995 (Good Friday). Mills appeared as a straightforward and credible witness. He told the Court that he works a fortnightly roster of Sunday through to Friday and Monday through to Friday each month. The Sunday he works is that which falls before the pay day in the second week, as he performs duties in the pay office. Both he and the applicant agreed that they encountered one another on Good Friday when the applicant informed an incredulous Mills that he had been charged with theft. The following week was the pay week and on the Sundays Mills works at the depot Mills normally eats his lunch in the storeroom. On Easter Sunday he clearly recalled encountering the applicant at the depot and being told him he was "picking up a few personal things". The applicant also asked Mills if he had heard of any progress on what was going to happen to the applicant's employment. It was not contested that on Good Friday the applicant met with Evans who suspended him on full pay until the following Wednesday. However, the applicant emphatically denied returning to the respondent's premises until being asked to attend for a meeting which took place between the applicant, Mills and Evans at the depot on Wednesday 19 April 1995. There is no reason for the Court to reject Mills' recollection of his chance meeting with the applicant on the Easter Sunday. The applicant is a man who persists even at hearing in describing himself as a "good" employee up to the date of his termination. He did accept that a good employee does not steal from his employer whilst drawing a distinction between his behaviour and that of the hypothetical good employee; demonstrating to the Court an unwillingness to identify his actions as acts of gross dishonesty inconsistent with any notion of being a "good" employee. When asked to explain why he took the items from his employer, apart from describing his behaviour as being "stupid", the applicant offered the rather inadequate explanation that he did work at home and his children, aged 3 and 4 years, lost his tools. He intended to use the tool cabinet to store these tools. He also told the Court that some of the respondent's "things" were used items, explaining that other employees left the items lying around and the applicant acquired them. Surprisingly, at one stage he denied taking tools, seeming to overlook items such as shifters, saw blades and screwdrivers all of which were referred to in the charge sheets. In cross-examination the applicant conceded that he knew that the reason given for termination of employment in the Employment Separation Certificate was not true. Notwithstanding this knowledge the applicant took no steps to have the document corrected and despite his knowledge of its inaccuracy used the document to tell the agency for temporary employment through which he is currently employed that shortage of work was the reason for the termination of his employment by the respondent. When asked what the applicant would have told the agency if he had told them the truth his answer was that "I stole from them (the respondent) and they forced me to resign". Evans was described by the applicant as a good boss. Nothing in his demeanour or his evidence suggested that he had any reason to or desire to give anything other than his honest recollection of events. James was not directly involved in the applicant's case because Evans' recommendation to terminate the applicant's services was not made after the applicant signed a written resignation on 19 April 1995. What James' evidence did was confirm Evans' contention that at no stage did he have the authority to, nor could he, terminate the applicant's employment on 19 April 1995. The extent of Evans' power was to make a recommendation to his superior, Bill Screen, to terminate the applicant's employment after having investigated and having considered any mitigating circumstances raised by the applicant, such as the length of the applicant's employment, his domestic situation and his good service otherwise. Because of all the abovementioned matters I have formed the view that the applicant's evidence where it conflicted with that of the respondent's witnesses should not be relied on. Resignation or termination at the initiative of the employer (i) The applicant's recollection of events The applicant's version of the events leading up to and including the alleged termination are as follows. The evidence shows that the applicant when challenged as to the whereabouts of the missing tool cabinet made admissions to the police concerning this item and other items discovered in his garage. Furthermore, it would be fair to say that he was co-operative with the police and that he apologised to the respondent's representatives for his actions, which not only touched upon his employment but also lead to his wife leaving the family home with their children for some days before returning to her husband on the Easter Sunday. The applicant was rostered for work on 14 April 1995 (Good Friday) and was asked to await the arrival of Evans. He saw Evans mid-morning and in the course of their discussions he was asked "why?" to which he replied "I don't know Barry, it was stupid". According to the applicant because of the size and weight of the tool cabinet Evans was particularly interested in finding out if the applicant had been assisted by anyone in stealing the tool cabinet. He denied that there was any other person involved explaining that he lent the item against the van and lifted it in by himself. It was the applicant's evidence that Evans told him that the matter was "out of my (Evans) hands", had "gone above my (Evans) head" and told the applicant that he was suspended with pay until further notice. Evans apparently also organised a further meeting on the following Wednesday offering to telephone the applicant concerning this meeting. It was further contended by the applicant that Evans in response to a query as to what Evans thought the outcome of the matter would be said - "I'll try and help you get a package but things don't look too good for you at the moment". On the following Wednesday 19 April 1995 the applicant alleges that he was telephoned by Mills at 10.30am and asked to meet with Evans at the depot at 11.00am. In the course of that telephone call the applicant alleges that he asked Mills "how did it go?" presumably referring to efforts he believed were being made to help him. He alleges that Mills told him that "he (Evans) tried but I don't think it will be any good ... come and see him". These conversational exchanges with Mills were never put to Mills in cross-examination. The meeting took place in Evans office between the applicant, Evans and Mills. After some discussion about the impact of the thefts on the applicant's domestic relationships and the applicant again being asked to explain to Evans why he stole the goods (his response being "I don't know why"), the applicant alleges Evans told him that he had tried to get a redundancy package however "they" meaning Screen, the General Manager and John Barry, the Director, wanted to "sack" the applicant. Moreover, Evans said he had told "them", again referring to Screen and Barry, about the applicant's employment history; namely, the applicant's 13 years of good service, and "they" had agreed to let the applicant resign; otherwise the respondent was intending to "sack" the applicant. It is not contested that at some point in the discussion Evans asked Mills for a resignation form and because Mills was unable to locate one, Evans obtained a piece of foolscap paper and wrote (see Exhibit A1): "19th April 1995 I wish to terminate my employment from the PTC from 19th April 1995. MICHAEL MOKDSI DEP No 718726" The abovementioned written resignation was signed by the applicant above his printed name but not before he alleges he asked for the opportunity to take the resignation form home to discuss it with his wife. The applicant claims that Evans informed him that he had to resign "now" or Evans would have to "sack" him and that would not look "too good". The applicant further claimed that before signing the resignation he asked Evans "couldn't you help me out?" to which Evans replied "I tried". The applicant also referred to other cases of theft by employees, the suggestion being that the respondent has dealt with these cases in ways other than by termination of their employment. Indeed, it was argued by the applicant that he had been treated unfairly in that he had not been given the opportunity to take some other punishment such as demotion (the term used by the respondent was to regress employees) in preference to dismissal. In his words if demotion had been offered he would have accepted "any type of punishment" to avoid termination of his longstanding employment. Putting to one side the question of the resignation the difficulty with the lastmentioned argument is that it is founded on a false premise that where serious and wilful misconduct is proven an employer acts unfairly if the employer does not consult with an employee on other options to dismissal as a penalty for the misconduct. The evidence of James was that the respondent does not impose an inflexible policy of summary dismissal in cases of theft. The seriousness or gravity of the conduct and the circumstances surrounding it are looked at. I further understood from the respondent's evidence that there had been cases in which thefts were investigated and at least to the knowledge of Evans one employee was dismissed. However there was no evidence before the Court to show that those who had been the subject of an investigation and remained in their employment had been found to have committed the offence alleged. Moreover, there was no evidence about the circumstances taken into consideration in allowing any employees to remain in employment if the thefts were proven. Generally speaking it may be unreasonable behaviour for an employer to treat differently employees who are guilty of the same offence. However, the circumstances surrounding each case of serious misconduct would need to be similar if not identical to allow the Court to conclude that the application of different penalties to employees for the same misconduct was objectively unfair. The salient feature of the evidence of the respondent's witnesses was that each case is assessed on its facts and surrounding circumstances before punishment is determined. This approach is consistent with the comments of the Full Court in Bostik (Aust) Pty Ltd v Gorgevski (No. 1) (1992) 36 FCR 20 where the Court said at page 28: "... we agree with the learned trial Judges' view that a Court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which lead to the decision to dismiss and also the effect of that decision on the employee. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct." This is also an approach endorsed by the High Court in its decision in the cases of Byrne and Frew. It does not contemplate any obligation on employers to consult the employee on the penalties the employee would prefer to dismissal. It was also contended by the applicant that in his last interview he asked Evans for a written reference and was told that Evans would only be prepared to provide a reference by telephone. According to the applicant the respondent had given written references to other people. These matters were never put to Evans in cross-examination or to any of the respondent's other witnesses. (ii) The respondent's version of events In cross-examination the applicant agreed to a number of factual allegations put to him which included the following: 1. That Evans told the applicant on Good Friday that the applicant's case would have to be referred to Screen, the General Manager and John Barry, the Director, the last of whom would make the final decision. 2. That on Good Friday before seeing Evans he asked Mills, who was his friend, what the respondent might do, to which Mills responded that it might dismiss, transfer, demote, treat the offence as a code of conduct violation or prosecute. However even though the applicant had "done the wrong thing" the respondent's management would take into account his good record. The applicant also asked Mills on several occasions whether he would be able to take a voluntary target package and was told that this was not up to Mills. 3. That Evans was a good "easy-going" boss. 4. That he was told the matter was being treated as a serious one. 5. That the applicant was stood down or suspended on full pay and Evans would get in touch with the applicant for a meeting on the following Wednesday and tell the applicant what action he would recommend to the respondent. Further, the respondent's Director would make the final decision about the applicant's future. 6. That at the Good Friday meeting the applicant did not tell Evans about the other goods taken from the respondent apart from the tool cabinet. 7. That at the Wednesday meeting the applicant described in some detail the attendance by police at his home, their search and his wife's arrival home whilst the police were there, as well as his request to the police not to continue in front of his young son. 8. That the applicant asked Evans how he had discovered that it was the applicant who took the tool cabinet. This was explained to him on the basis that the respondent had investigated employees who had driven into the storeroom on 13 April 1995 and had checked the log book and the kilometres travelled on the applicant's work vehicle. 9. That the applicant asked Evans on 19 April 1995 whether there was any chance of him keeping his job and Evans told him that it was a very serious matter. 10. That the applicant asked several times if he could receive a termination package. 11. That the applicant asked Evans and Mills how much he would receive if he resigned. 12. That Evans had asked "why?" he stole the goods and had been told by the applicant that he did not know why but it was a "stupid" thing to do. 13. That at the time of the interviews the applicant considered that he might be sacked. It was Evans evidence, supported by James, that Evans did not have the power to dismiss the applicant. At best he was empowered to investigate and taking into consideration the findings of that investigation and the circumstances surrounding the incident; not to mention the applicant's work history, he could make a recommendation to his superior, the Group Manager, Bill Screen; including a recommendation that the applicant's services be terminated. Evans is an engineer by training and has worked with the respondent and its predecessor since 1962. In the last 5-6 years he has been involved in management and has counselled employees but has never had the power to dismiss, apart from recommending this course of action to his superiors. After meeting with the applicant on Good Friday Evans went to the police to identify the items taken from the applicant's home, which were spread out in a small room. His observation was that most of the items were new, which observation contradicts the applicant's claim that the bulk of the items were used, having been left lying around by other employees who in the applicant's words "had no respect" for the items. After his visit to identify the property Evans spoke to Screen to inform him of what had occurred. He again spoke to Screen on the following Tuesday. Evans gave evidence that he instructed Mills on the following Tuesday to arrange a Wednesday meeting with the applicant. He also recalled instructing Mills to ask the applicant if he required a union representative to be present at that meeting. At the commencement of the meeting he then recalled the applicant declining his offer to have a shop steward present. There was general discussion of why the offences occurred, of what happened when the police attended the applicant's home and the applicant's co-operation with the police; not to mention his apology to the respondent for what had occurred as well as discussion about how the applicant's role in the theft was discovered. Evans told the applicant that the offence was a serious one and that he would make a report containing a recommendation to the Director to terminate the applicant's services. When the applicant asked if there were any alternatives to termination Evans told him that he "would be prepared to let him resign". Evans was asked by the applicant if he could have a package and was told if he resigned he would not be eligible for one. The applicant asked to resign and the written resignation was drafted by hand because Mills could not locate the usual form for this. Mills evidence corroborated Evans' version of events and, although Evans was cross-examined in detail on the matters the applicant alleged were said in that meeting, Mills was not. The applicant argues that the facts support a conclusion that there was a termination at the initiative of the employer because he was faced with the option of resigning or being dismissed. Accepting as I do the evidence of Evans and Mills, the applicant's case does not readily fall into the category of cases where resignation is forced on an employee or tainted by the threat that if the employee does not resign the employment will be terminated. (See Roberts v Prince Alfred College 6 SAIR (Pt1) 598, TWU (W.A.) v Eastern Goldfields Transport Board, (1989) 69 WAIG 1895: case V67 (1988) 1 ATC 505, Weller v Transport Superannuation Board 4 VIR 353, Achal v Electrolux Pty Ltd (1993) 50 IR 236, and Association of Professional Engineers Scientists & Managers Australia & Carl Sparre v David Graphics Pty Limited (unreported), Wilcox CJ, NI 0174 of 1994, 12 July 1995. On the facts, as accepted by me, after giving the applicant the opportunity on no less than two occasions to defend himself against the allegations (as well as hearing from him concerning his domestic circumstances at least since the discovery of the theft and after considering the applicant's good employment record), Evans determined that the seriousness of the offences warranted a recommendation that the employment be terminated. There is no evidence of any decision by Evans, or those who were in a position to make such a decision that the respondent had decided before the meeting on 19 April 1995 to terminate the applicant's employment if he declined the opportunity to resign. This is not a case where the applicant made a sudden and intemperate decision to resign. (See Minato v Palmer Corporation Ltd (unreported) Murphy JR, No. VI 1239 of 1995). In truth he had some days to consider his position and arrange for representation if he required it. He acted in the belief that the respondent might show some leniency by imposing some lesser punishment. Interestingly enough, his evidence suggests that he was really pursuing a voluntary departure or termination package ahead of any alternatives to dismissal both before the last interview and, once he realised that Evans was not prepared to do more than recommend termination, leaving senior management to give further consideration to whether or not he would be dismissed (and on James' evidence it is apparent that at each level the respondent gave consideration to mitigating circumstances) the applicant lost hope and voluntarily resigned. I infer from the absence of any prepared notice of termination and the unavailability of the respondent's resignation forms at the time of Evans' last discussion with the applicant that there was no plan in place to terminate the applicant on 19 April 1995. According to Evans because the applicant took the steps he did Evans did not proceed to file a report or make any recommendation on termination. Even if the respondent's conduct on 19 April 1995 could be construed as amounting to termination at the initiative of the respondent I am not satisfied that the applicant has discharged the onus of proof on him of demonstrating a lack of procedural fairness either by reference to s.170DC or s.170DE(2) of the Act. My observations earlier in this judgment have already dealt with these sections. It is not the intention of the Act to require employers to take steps to prevent employees, who are guilty of serious misconduct, from voluntarily resigning and thereby avoid the humiliation of a possible termination. Standing down or suspension of an employee Although James was able to give evidence that the applicant was employed pursuant to an award he was not able to say what that award was or whether or not the particular award applicable to the applicant contained any provision for suspending or standing down an employee. He did go on to say that it was his belief that none of the awards applicable to employees employed by the respondent contained such a provision. This being so, the applicant further contended that on 14 April 1995 when Evans stood him down or suspended him on full pay such an action was a repudiation of his contract of employment and that was an act that should be taken into account in determining whether or not his employment was terminated at the initiative of the respondent. I was again referred to my decision in Cooke v Royal Melbourne Hospital, where the suspension of the applicant in that case was also said to be a breach of the contract of employment, and my comment at page 25 of that decision where I said: "Commonsense suggests that the employer would be left in something of a "catch 22" situation if it instantly dismissed the applicant without an enquiry, because there was no explicit provision to suspend or stand him down with pay and entitlements intact, and was then faced with a breach of the Act for failing to conduct a proper enquiry as well as afford procedural fairness to the applicant before availing itself of its right to terminate for serious and wilful misconduct." I was also referred to my decision in Magagna v FAI Workers Compensation Vic Pty Ltd (unreported), No. VI 2602 of 1995 and Portnoy v FAI Workers Compensation Vic Pty Ltd (unreported), No. VI 2601 of 1995, 21 September 1995 where both employees were suspended on full pay, again without any contractual or award provision to authorise such an action. In those cases neither applicant acted to accept the alleged breach of an essential term of the contract; rather they accepted the suspension until some days later when they received letters from their employer purporting to redeploy them to alternative duties. The redeployment was, in effect, a breach of their contracts of employment which they accepted as having terminated their employment. If suspension of an employee on full pay, in circumstances where there is no award provision or express contractual right to do so, amounts to repudiatory behaviour on the part of the employer it follows that, because the provision of work is an essential term of a contract of employment the employee has a right to treat that breach as one which brings the contract of employment to an end. On the other hand, if the employee expressly or impliedly affirms the contract or by his or her conduct waives the breach, the contract remains on foot. In all the cases referred to above, as well as in the present case, none of the employees acted on any perceived breach of their respective contracts of employment when offered suspension on full pay. Indeed, in each case they accepted the suspension on full pay and, it was not until some days later when there was some further act on the part of the employer allegedly breaching the contract of employment that they then evinced an intention to accept that breach as a termination of the contract of employment. In the present case the applicant accepted without demur the suspension on full pay until the Wednesday following the Easter break. His conduct in accepting the suspension and returning to his place of employment to meet with Evans and Mills on 19 April 1995 demonstrated an election on his part to affirm the contract and treat it as one that was still on foot. Because of this, he clearly waived any opportunity he may have had to accept the breach as a termination of his contract of employment. Apart from the matters referred to above it should also be kept in mind that the Act overtakes the common law and commonsense suggests that if an employee denied the employer the opportunity to properly investigate an allegation of misconduct by refusing to consent to a suspension of the contract of employment over a reasonable period, without prejudice to the employee's entitlements, that refusal would be a significant matter for the Court to consider in the context of any proceedings brought by the employee for unlawful termination of their contract of employment. What is obvious from the cases of Cooke, Magagna and Portnoy is that the applicants impliedly agreed to the period of suspension with full entitlements intact in the hope of being given an opportunity to prove their innocence and retain their employment. I infer from the applicant's conduct in this case that at the very least he consented to suspension with full pay in the expectation that he may retain his employment or, at the very least, negotiate a termination on terms more favourable than a summary dismissal. Accordingly, the application is without merit and it is dismissed. MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding thirty-two (32) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 23 November 1995 Solicitors for the Applicant: Gill, Kane & Brophy Counsel for the Applicant: Mr I. Fehring Representative for the Respondent: Mr Eugene John Quigley Counsel for the Respondent: Mr Devries Date of hearing: 2 & 3 November 1995 Date of judgment: 23 November 1995