Hinks v Colmark (Aust) Pty Ltd [1996] IRCA 232

DECISION NO: 232/96 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - VALID REASON - EXTENSION OF TIME - REMEDY INDUSTRIAL RELATIONS ACT 1988 , s170EA, 170DE BRETT PETER HINKS -v- COLMARK (AUST) PTY LTD QI 95/1373 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 30 May 1996

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1373 QUEENSLAND DISTRICT REGISTRY BETWEEN: BRETT PETER HINKS Applicant AND: COLMARK (AUST) PTY LTD Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 30 May 1996 THE COURT ORDERS THAT: 1. The time for the making of the application be extended to 26 October 1995. 2. The application be allowed. 3. The respondent pay to the applicant the sum of $6,250 within 14 days of this order. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 95/1373 QUEENSLAND DISTRICT REGISTRY BETWEEN: BRETT PETER HINKS Applicant AND: COLMARK (AUST) PTY LTD Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 30 MAY 1996 REASONS FOR JUDGMENT Background The applicant is now almost 25, having been born on 7 June 1971. The respondent conducts a business manufacturing metal garden sheds, garages and like items. While the applicant completed a traineeship in aluminium fabrication in 1992, he is essentially an unskilled labourer, having undertaken no apprenticeship. The applicant took up employment as a factory hand/packer with the respondent at its premises at Kingston, Brisbane in 1993 (January according to his evidence, May according to an Employment Separation Certificate). Nothing turns on this discrepancy. The applicant learned to operate machines used by the respondent for slitting metal, and panel assembly. About Easter 1995 the applicant was promoted to a position as team leader, on the illness of the then team leader. His team was responsible for the production of panel form sheds. He had ordinarily 5 or 6 employees reporting to him, and up to 12 sometimes. The circumstances in which the applicant came to be relieved of this position, and his complaints of repetitive strain injury, took up part of the trial time. On my view of the evidence, and issues raised, nothing much turns on these aspects. On 28 September 1995 the applicant's employment was summarily terminated, on the ground that he had stolen property of the respondent the day before, when he left early suffering from the effects of a repetitive strain injury. There were allegedly two fellow employees who witnessed the applicant's taking away the respondent's property on 27 September. Neither was called to give evidence before me. The respondent relied instead on admissions said to have been made by the applicant in an interview of him on 28 September by a Mr Kerr, the respondent's manufacturing manager, in the presence of a Mr Hinton, materials movement manager and a Mr Bocos, team leader kit section. It relied also on other evidence of Mr Hinton, about which I will say more. During his evidence-in-chief, the applicant's counsel had the applicant identify property which the applicant swore comprised the property he had taken from the respondent's premises on 27 September. This consisted of two partial rolls of aviary wire, scrap as described by the applicant, which became exhibit A2. It was not put to the applicant in cross-examination that the property he took was other than that comprised by exhibit A2. It emerged in the respondent's case that Mr Kerr, the interviewer and the person who took the decision to terminate the applicant's employment, acted on the basis that what the applicant had taken from the respondent's premises was in fact two whole rolls of aviary wire, obviously considerably more valuable than exhibit A2, the value of which, according to Mr Kerr (on the assumption that its weight was about 10 kgs), was about 80 cents. Mr Kerr was asked by me whether or not the decision he took to terminate the applicant's employment might have been different if in fact it were the case that what the applicant took was the property comprising exhibit A2. I thought he answered honestly when he replied to the effect that his decision may well have been different, perhaps giving the applicant what he described as a final warning rather than terminating his employment.