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. Findings In the absence of eye witness evidence of what the applicant took, the failure to put to him that exhibit A2 did not truly comprise the taken property, and having observed the applicant give evidence, I find that the property the applicant took comprised exhibit A2 only. I am not satisfied that during the interview with him on 28 September it was ever specifically put to him that the property being discussed was two whole rolls. What Mr Kerr said was: A serious accusation has been levelled at yourself that at 6.30 am, 27/09/95, that you were seen to remove from site by two witnesses, Spic-n-Span products without permission. It is instructive I think to observe that the applicant's recorded response was: It was only a bit of Shit. Mr Hinton gave evidence which was designed to cast doubt on the applicant's assertion of the nature of the property taken by him. While I thought he gave his evidence honestly, its content is not sufficiently cogent to cause me, in the light of the totality of the evidence, to depart from my already expressed finding about the character of the property taken by the applicant. Having admitted in his interview on 28 September that he did remove property belonging to the respondent, the applicant's stance at trial was that he had tacit permission from his employer to do so. I find that he honestly believed he had such permission. Even if he were mistaken in this, it was not unreasonable for him to so believe that he could take the property, in light of the evidence before me. The respondent contended for an iron-clad rule requiring any employee to obtain express permission from a superior for the taking from the respondent's premises of any of its property, no matter how slight its value. I am not satisfied of the rigidity of the rule contended for. Issues The valid reason relied on by the respondent for the termination of the applicant's employment was theft of its property. In light of the findings I have made, the applicant has a defence to his admitted taking of his employer's property. I am not satisfied that the respondent has proved it had a valid reason for his termination. Even if it had, I would go on to find that, in the light of Mr Kerr's evidence about what his decision might have been had the property taken comprised exhibit A2, the applicant has proved his termination was harsh, unjust or unreasonable. The respondent is in breach of subsection 170DE(1) of the Industrial Relations Act 1988. I find that the applicant was accorded procedural fairness in the manner of his termination. The applicant's counsel submitted that in truth, the applicant's termination was brought about by the respondent because it feared his going off on workers' compensation, or because of alleged difficulties it had in managing his rehabilitation for repetitive strain injury. I do not accept at all that this motivated Mr Kerr. I am satisfied that the respondent has proved that the applicant's employment was not terminated for a proscribed reason within the terms of subsection 170DF(1) of the Act. Extension of Time Proceedings were not filed until 26 October 1995. The respondent contended that the applicant had received written notice of termination, on 29 September 1995, the day after his interview, when he attended the respondent's premises by arrangement to collect a copy of the record of interview (of the previous day), an Employment Separation Certificate, a final pay advice and final pay. While these documents were laid out in front of the applicant, he refused, acting on advice, to take them. I do not doubt that those documents comprise written notice of termination within the meaning of para 170EA(3)(a) of the Act. The argument centred on whether or not the applicant had received such notice, on 29 September. I assume for present purposes he did. His application in that circumstance ought to have been filed no later than 13 October 1995. It was 13 days late. The applicant's counsel did not elicit from him any evidence to explain the delay. On the other hand, the period of delay is not substantial. The atmosphere at the meeting of 29 September was heated. The respondent could not have taken any comfort from that meeting that it had heard the last of the applicant. The respondent does not point to any specific prejudice it will suffer if time is extended. The prejudice to the applicant if time is not extended is obvious. Having regard to these factors, and to the merits of the applicant's claim, I propose to extend time for the bringing of proceedings. Remedy The applicant eschewed reinstatement as a remedy. In this stance I think he is right. He has since found, and holds, other employment in which he is content. I consider reinstatement to be impracticable. At termination the application was earning $408.10 gross per week. Additionally, he earned overtime from time to time. In the 1994-5 financial year, this amounted to $3000 or more. Since termination the applicant has earned $1000 gross with C.T. Sheet Metal, in early March 1996. He took up his current employment, with Gislens Wire Works, as a press operator in April 1996. There he earns a base rate of $450.38 gross per week. Dr Stanton, the applicant's GP gave evidence that he had certified the applicant unfit for work, for workers' compensation purposes, from 27 September, the day before his termination, until 6 December 1995. The respondent submitted that in having regard to the remuneration the applicant would have received, or would have been likely to have received, I ought to take into account this evidence. In other words, any compensation to be awarded to the applicant ought to reflect the fact that he may not have received remuneration from the respondent for the period of his certified unfitness for work. I accept this submission. It appears that at termination the applicant may have exhausted his then sick pay entitlement; alternatively, it was low. The respondent submitted also that compensation ought to be discounted for the contingencies that the applicant might have been lawfully dismissed for poor performance in any event, have left of his own accord because of bitterness about being relieved of his team leader's position, or his medical condition may have gone against his continuing suitability for the job. I will apply some discounting, albeit modest, to take account of the third of these factors only. I assess appropriate compensation to be the sum of $6,250 after taking account of the applicant's level of earnings at termination, including an allowance for the prospect of overtime, his remuneration from employment in early March 1996, likely unfitness for work between termination and early December 1995, and the contingency earlier referred to. Generally The respondent agreed at trial to pay the applicant the sum of $798.53 comprising entitlements owing to him at termination for unpaid wages and the like. Over objection, I had allowed Dr Stanton to express his opinion of the applicant's credibility. I have ignored this evidence in accepting the applicant's evidence. Orders I order 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. I certify that this and the preceding five (5) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 30 May 1996 Counsel for the Applicant: Mr Sacre Solicitors for the Applicant: Roberts & Kane Solicitor appearing for the Respondent: Mr Watson Solicitors for the Respondent: Freehill Hollingdale & Page Dates of hearing: 14 and 15 May 1996 Date of judgment: 30 May 1996