DECISION NO: 500/96 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - WHETHER RESIGNATION AMOUNTED TO TERMINATION OF EMPLOYMENT AT INITIATIVE OF EMPLOYER - VALID REASON - PROCEDURAL FAIRNESS INDUSTRIAL RELATIONS ACT 1988 , s170EA, 170DE(1), 170DC. Mohazab v Dick Smith Electronics Pty. Ltd. (1995) 62 IR 200 PAUL GROVES v AIRSERVICES AUSTRALIA QI 96/1071 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 16 OCTOBER 1996 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI96/1071 QUEENSLAND DISTRICT REGISTRY BETWEEN: PAUL GROVES Applicant AND: AIRSERVICES AUSTRALIA Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 16 OCTOBER 1996 MINUTES OF ORDERS THE COURT ORDERS THAT: The application be dismissed. 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. QI96/1071 QUEENSLAND DISTRICT REGISTRY BETWEEN: PAUL GROVES Applicant AND: AIRSERVICES AUSTRALIA Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 16 OCTOBER 1996 REASONS FOR JUDGMENT BACKGROUND At all material times the applicant was an aviation firefighter employed by the respondent at Cairns, Queensland. The respondent is the successor to the Civil Aviation Authority. The applicant is now aged 43, having been born on 12 July 1953. The applicant filed proceedings in the Australian Industrial Relations Commission on 13 May 1996, alleging that the respondent had unlawfully terminated his employment with it. It was common ground that the applicant had in fact resigned his employment with the respondent on 1 November 1994. The circumstances attending that resignation were the focus of much of the trial. ISSUES On behalf of the applicant it was contended that his resignation having been brought about by duress from his employer, it should be treated as a termination of employment at the initiative of his employer. The respondent argued against this proposition but alternatively, submitted that it had proved a valid reason for termination if indeed a termination at its initiative were found to have occurred. It submitted that, in any event, time should not be extended for the bringing of the proceedings. FACTS I preferred the evidence of the respondent to that of the applicant. The narrative which follows includes relevant findings of fact, unless otherwise indicated. The applicant submitted claims on 7 July 1992, 11 August 1993 and 25 May 1994 in support of leave fares assistance for travel for his wife. The applicant's entitlement to such assistance on each occasion depended on his wife's estimated income not being greater than the sum of $11,236.00 at the time each claim was made. In support of each claim, the applicant certified on each occasion that the estimated income of his wife was not greater than the stated sum. Each certification was false, and I find that the applicant knew it to be false. He knew also that he would not be paid the assistance without so certifying. I reject his explanation that he was unaware at any material time of the level of his wife's earnings, as farcical. It is to be noted that after the 1993 application, the applicant had been spoken to by a superior officer and told to be sure that what he certified on any such application was correct. He swore that it did not cross his mind to check his wife's level of earnings before he certified on the 25 May 1994 form. I do not believe him. It follows from the above that I have rejected the submission made to me that in respect of any of those claims, the applicant's entitlement to claim for leave fares assistance was not subject to the dependants' income limit. The applicant's consciousness of guilt is reflected in a letter dated 25 October 1994 to his Divisional Officer. He then wrote: "........the seriousness of my actions in making wrongful claims for financial benefit from the CAA." He accompanied that letter with restitution for: "........claims wrongfully made upon the CAA." in the sum of $2254. I am satisfied that the applicant's resignation on 1 November 1994 came about because his Divisional Officer suggested in the week before that, if he resigned, his employer would not refer the matter of his claims for leave fares assistance to the Australian Federal Police. On balance, I am persuaded that this action of the employer was the principal contributing factor which led to the termination of the employment relationship - Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200. The respondent has proved a valid reason for the termination of the applicant's employment, this being his dishonesty in submitting the claims for fares assistance. In my view, his conduct in so doing amounted to serious misconduct, such that the question of notice, or pay in lieu thereof, does not arise. On behalf of the applicant, it was contended that there had been some breach of procedural fairness associated with the manner of the termination of his employment. This was put on the basis of an alleged lack of counselling. I do not see the relevance of counselling in the circumstances I have found proved. I consider that the applicant was accorded procedural fairness in the manner of his termination. He clearly understood the allegations against him, and was given proper opportunities to defend himself against those allegations. EXTENSION OF TIME Given the fate of the application, I find it unnecessary to determine whether or not an extension of time ought to be granted had the applicant otherwise succeeded on the merits of his claim. COSTS In anticipation of an application for costs, and in order to avoid any further costs in the proceedings, I will deal with this issue now. While the applicant has suffered a signal failure in these proceedings, their outcome largely turned on my making a positive finding of credit against him, and the resolution of the question whether or not his entitlement to claim was subject to the dependants' income limit. In the circumstances, I am not persuaded that the proceedings were instituted vexatiously or without reasonable cause. ORDER I order that the application be dismissed. I certify that this and the preceding three (3) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 16 October 1996 Solicitor appearing for the Applicant: Mr Cox Solicitors for the Applicant: Masinello & Associates Counsel for the Respondent: Mr G.C. Martin Solicitors for the Respondent: Corrs Chambers Westgarth Dates of hearing: 7 August & 19 September 1996 Date of judgment: 16 October 1996