Industrial Relations Commission of New South Wales CITATION: Saul and Goonellabah Newsagency [2005] NSWIRComm 1165 APPLICANT Mr. Stephen Keith Saul PARTIES: RESPONDENT Goonellabah Newsagency FILE NUMBER(S): 1396 of 2003 CORAM: Ritchie C Termination of employment- unfair dismissal- whether termination harsh,unreasonable or unjust. Applicant terminated for stealing $300. Respondent had marked money in an ATM. Some of this money stolen. Charged by Police-found guilty by Magistrate. Appealed -appeal upheld by District Court.-reasonable doubt.-further evidence put before District Court. Onus on respondent to prove beyond the balance of probability that applicant stole $300-different test applies in civil case. Previous work history of applicant showing terminated for misconduct placed before Commission and not before District Court. CATCHWORDS: Applicant sought to blame a fellow worker for the theft yet did not question this worker whether he did steal the money in cross examination. Commission found that respondent had marked ten $50 notes. Commission found that $300 stolen. Applicant had the opportunity to steal money. Commission found that applicant had spoken to the other employee on the morning of the money being stolen. Commission found beyond the balance of probability that applicant had stolen the $300. Application dismissed. LEGISLATION CITED: Industrial relations Act 1996 Wang v Crestwell Industries Pty Ltd 73IR 454 CASES CITED: Australian Workers Union, NSW Branch v Colgate-Palmolive Pty Ltd (1988) 27 IR 420 HEARING DATES: 08/17/2005; 08/18/2005; 08/19/2005 DATE OF JUDGMENT: 10/12/2005 APPLICANT Mr.G.J. Donaghy-Solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr. A. Moses of Counsel Solicitors: Walters DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 12 October 2005 Matter No IRC 1396 of 2003 IN THE MATTER OF : Stephen Keith Saul and Goonellabah Newsagency Application by Stephen Keith Saul re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2005] NSWIRComm 1165 Background. 1 On 13 March 2003 Stephen Keith Saul (the applicant) filed a claim for unfair dismissal against Michael and Susan Neilan trading as Goonellabah Newsagency (the respondent). The applicant had commenced employment with the respondent in 1995 and was terminated for gross misconduct by way of correspondence from Walters solicitors on 21 February 2003. 2 The applicant was interviewed by the Police on 22 March 2003 concerning the disappearance of money from the ATM machine located within the respondent's newspaper shop. 3 On 28 March 2003 the Police interviewed Mr. Tony McLean who also worked for the respondent as a shop assistant. On 29 April 2003 Mr. Michael Neilan was interviewed by the Police. 4 On 3 April 2003 the applicant was charged by the Police for the stealing of $300 from the respondent. 5 On 10 September 2003 Magistrate K. Pogson was satisfied that the offence had been proved beyond a reasonable doubt. The applicant was placed on a 12 month good behaviour bond plus court costs. 6 This decision was appealed by the applicant and on 4 March 2005 Justice Black QC upheld the appeal and quashed the conviction and set aside the penalty imposed. 7 The unfair dismissal application had a conciliation on 31 March 2003 when a timetable for the filing and serving of evidence was provided to both parties. The application was then stood over pending the outcome of the criminal proceedings. 8 The hearing of this matter was heard on 17,18 and 19 August 2005 in Lismore when at the completion of proceedings I reserved my decision. Applicant's Case. 9 It was the applicant's case that he had been working for the respondent since 1995 and was a full time employee at the point of termination earning $869 per week. Since the year 2000 the applicant had been responsible for the day's banking sometimes carrying up to $20,000 in cash to the bank. 10 In December 2002 the respondent had installed within the shop, an automatic teller machine (ATM) owned by Cashcard Australia Pty Limited. It was the applicant's evidence that the ATM had problems in its daily operation and at one stage the respondent sought for its removal but later changed his mind and the ATM stayed. 11 Each morning the applicant who held a front door key, arrived at work at approximately 2 to 2.30am worked for about an hour in the shop by himself before leaving the shop and going up to the respondent's distribution centre, about 2 kilometres away where he assisted in preparing newspapers for home delivery by other employees. He would then return back to the shop let himself in and continue to prepare for the days trading. The shop was open for trading from 5.00am. Later in the morning the applicant would leave the shop to carry out other work leaving only one other employee (Mr. McLean) in the shop. 12 Prior to the introduction of the ATM another employee Tony McLean commenced work at 6.00am but this was changed to 5.00am with the commencement of the ATM. The reason for the change was that the respondent wanted for security reasons two employees on site to refill the ATM. The respondent later on allowed the applicant to refill the ATM by himself when it was going to be a big day. When the ATM was open and being replenished, the front door of the shop was locked for security reasons. 13 On 6 February 2003 the applicant confirmed discussions with Mr. Neilan had taken place, but that he had stated without prompting that he had dropped the cassette containing the $50 notes and had to replace the notes. 14 On Friday 14 February 2003 the applicant arrived at work at 2.30am, left at 3.23am and returned at 4.14am. He said in his statement that he then left the shop again from approximately 6.30am to 7.20am. 15 On the night of Saturday 15 February 2003 the applicant received a phone call at home from the Mr. M. Neilan which resulted in the applicant going into the shop the next morning. During that phone conversation the applicant denied he resigned his employment. 16 At the brief meeting held on Sunday 16 February 2003 at the shop counter between the applicant and Mr. Neilan, the applicant was advised that he was suspended pending an audit of the ATM. He was required to return the keys of the shop and car and any other of the respondent's goods to the respondent. 17 He phoned the respondent on 19 February and was advised by Mr. Neilan that the audit of the ATM was progressing and "it looks even worse for you " and "I'll keep you informed." 18 The applicant then received the correspondence dated 21 February from the respondent's solicitors stating that he had been terminated for gross misconduct. Respondent's Case. 19 It was Mr. Neilan's evidence that whilst he had experienced concerns with the ATM it was his view that the machine was functioning correctly. He stated that he had misinterpreted the replenishment procedural card given to him by ComputerTrans but after a visit by technicians from Computer Trans in January 2003 he had no further problems in balancing. 20 The ATM is replenished each day. After the shop had shut at the end of the days trading, a host close docket is produced showing how much the ATM had dispensed to customers. The host docket also shows the number of remaining notes in each cassette, being $20 and $50 notes. Each cassette is then replenished from the days takings up to the standard float and a new cash docket is placed in the reject tray together with the ATM key. 21 On the night of 5 February 2003 Mr. Neilan was carrying out his normal procedure of replenishing the ATM when he noticed that the notes in the $50 cassette had been interfered with. The next day he spoke with both the applicant and Mr. McLean about whether they had experienced any problems in loading the cassette. The applicant replied in the negative and asked "why?". Mr. Neilan said that some of the $50 notes were in the cassette in a different way to which he had placed them in the previous night. He then asked the applicant whether he had dropped the cassette to which the applicant replied that he had. 22 On the night of 13 February 2003 Mr. Neilan stated that he did an actual count of the money left in the ATM. What he should have in accordance with the ATM host close settlement and what his physical count was revealed a substantial difference. His wife carried out a separate check and confirmed his view. 23 That same night Mr. Neilan replenished both cassettes for the next days trade. He stated that he marked the top ten $50 notes with a small black mark. 24 The next day at work he inquired and was told by the applicant that there had not been any problems with the loading of the ATM that morning. That night the host close settlement docket indicated what he should have left in $20 and $50 notes. A physical check found that he was six $50 notes short. The $20 note cassette balanced. He checked the $50 notes located at the top of the cassette and found only four marked notes left. Six of the marked $50 notes were missing. Annexed to Mr. Neilan' statement was correspondence from the ATM manufacturer NCR that stated that when issuing notes to customers, notes are taken from the bottom of the cassette. 25 That night Mr. Neilan rang the applicant and left a message on his answering machine directing him not to touch the ATM cassettes in the safe the next morning. He then contacted Mr. McLean and advised him that he was in conjunction with the applicant to do a physical check of the two cassettes. He was told that there were one hundred $20 notes and two hundred and forty $50 notes. 26 The next morning Saturday 15 February 2003, Mr. Neilan rang Mr. McLean who confirmed that the count was correct and he was then to place the two cassettes into the ATM. Mr. Neilan stated that the ATM has balanced ever since. 27 That night Mr. Neilan rang the applicant at his home and organised a meeting for the following day at the shop concerning shortages of money from the ATM. The applicant respondent asked whether he was being accused of taking money from the ATM. Mr. Neilan denied this but did then ask him had he, which he replied in the negative. The applicant replied that he would attend the shop the next day and " that he would return all my stuff he had to the shop." 28 At the shop the next day Mr. Neilan stated that he had accepted the applicant's verbal resignation from the telephone conversation the night before. The applicant denied resigning. The applicant was then required to hand over his keys to the shop, the shed and the car. That evening the applicant delivered a note to the shop stating that what he had said did not constitute a resignation. 29 Mr. Neilan stated that only the applicant and he held keys to the shop. A spare key was held at Mr. Neilan's home. 30 In evidence Mr. Neilan stated that the ATM had a daily float of $2,000 in $20 notes and $12,000 in $50 notes. 31 By way of correspondence from Walters Solicitors dated 21 February 2003 the applicant was terminated " without notice for gross misconduct, the circumstances of which are known to you." It went on to say that " Our clients propose to take such further action as they may be advised to recover the cash deficiencies in the ATM machine." 32 Mr. Tony McLean gave evidence for the respondent. He stated that he had worked for the respondent since leaving high school in 1993. 33 He stated that on the morning of 14 February 2003, Mr. Neilan arrived at work and asked the applicant and himself whether they had had any problems in loading the ATM. The applicant said he had not had any problems when he had loaded it and enquired why he had asked. Mr. Neilan said that there had been a shortage of money the previous night and that another check would be conducted by himself that night. 34 A little while later the applicant approached him and said words to the effect: "Remember Tony, we loaded the ATM this morning together. " He stated that at the time the applicant appeared nervous and agitated and was red in the face. He was shocked by this approach and appeared to expect him to lie for the applicant. 35 In cross examination Mr. McLean stated that he did not tell Mr. Neilan about this alleged comment by the applicant as he did not wish to get involved and he was uncertain at the time as to the exact reason for the termination of the applicant. He denied that he made this statement up to counter the allegation relayed to him by Mr. Neilan that he had been accused by the applicant to the Police that he was involved in taking the money. 36 On Friday evening 14 February 2003 he received a phone call from Mr. Neilan who told him that on the following morning, Saturday 15 February 2003 he was to count the money in both cassettes in the presence of the applicant, and then put the cassettes back into the safe. 37 On Saturday morning at a little after 7.00am Mr. McLean received another phone call from Mr. Neilan. He confirmed that he and the applicant had completed the money count. He advised that the applicant was not in the shop at the time and he was directed by Mr. Neilan to remove the cassettes from the safe and place them into the ATM which he did. Consideration and Decision. 38 Exhibit 4 in the proceedings, submitted by the respondent consisted of company documents from the applicant's previous employment with Sunnybrand Chickens Pty Ltd, a separation certificate from Sunnybrand Chickens, a statement by Mr. Michael Neilan on company letterhead, NSW Police Service transcript of interview with the applicant, NSW Police statement of Tony McLean, NSW Police Breach Report, Information (Charge) Sheet Lismore Local Court, Summons Lismore Local Court, NSW Police statements of Michael Neilan, Local Court transcript Police v Saul, Local Court Judgement -Police v Saul, District Court transcript-Appeal of Stephen Keith Saul and District Court Judgement -Appeal of Stephen Keith Saul. 39 The company documents from Sunnybrand Chickens Pty. Ltd. and the Employment Separation Certificate showed that the applicant worked for this company from 4/6/93 to 11/9/95 when he was terminated for misconduct. The reason for termination was expressed as : Tally figures incorrectly documented-(salary staff, very serious). Do not re-employ. 40 It was admitted by Mr. Neilan that on Monday night 10 February 2005, Mr. Neilan purposely left out some $20 notes on the office bench and in the return box. These were accounted for by the applicant. An honesty test that the applicant past. 41 I have reviewed the transcript and the two judgements of both the matter before Magistrate Saul and the appeal before Justice Black. A document that was placed before the District Court and not before the Magistrate was a Transaction Enquiry sheet which showed the times on the morning of 14 February 2003 when a financial transaction took place using either of the two cash registers (Ex. I in these proceedings). The judge gave that weight plus the good character of the applicant in reporting the money that had been purposely left out. The appeal was upheld as the judge " could not have been satisfied on what I have read that I would be comfortable finding the case proved beyond reasonable doubt." 42 I note that the applicant's previous employment history with Sunnybrand Chickens Pty Ltd was not before the District Court. 43 The issue of the applicant resigning to Mr. Neilan over the phone on the night of Saturday 15 February 2003 was not pursued by the respondent in this matter. If it is still in doubt I find that the applicant did not resign during that telephone conversation. I am satisfied with his explanation as to why he said what he said on that night. In this matter the applicant was terminated by solicitors of the respondent correspondence dated 21 February 2003. The applicant was terminated without notice for gross misconduct. Charges for theft of money to the sum of $300 from an ATM machine located in the newsagency were brought against the applicant by the NSW Police. 44 I note the comments in the judgement of Watson J. in Australian Workers Union, NSW Branch v Colgate -Palmolive Pty Ltd(1988)27 IR 420(at 427): It is not unusual for events which lead to the dismissal of an employee to involve criminal proceedings. It has been held that an acquittal does not necessarily result in an order for reinstatement. The conclusion of the commissioner could in no way be relevant in deciding the police charge. Similarly the conclusion of the magistrate does not determine the event of this appeal. and Although this is an appeal from the commissioner and not an appeal from the magistrate, it is accordingly obvious that both decisions must be examined critically, in particular, with reference to the methods used by or available to both tribunals to resolve the conflict of evidence concerning certain material facts. 45 I also note the comments expressed in the Full Bench decision in Wang v Crestwell Industries Pty Ltd 73 IR 454 at 463 : The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard of course is the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988)63 ALJR 108 and by Dixon J. in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employees Association, NSW Branch and Coles Myer Ltd v Shop, Distributive and Allied Employees Association (NSW) (1989) 27 IR 299. 46 In this matter the onus falls on the respondent to prove beyond the balance of probability that the reason for termination of the applicant did take place. 47 Annex.G to Ex. 3 showed that the alarm to the shop was disarmed on 14 February 2003 when the applicant came into the shop, rearmed when he left to go the distribution centre and then disarmed again when he returned the second time. It was then rearmed when the shop was shut up at the end of the day. 48 After considering all the evidence, including what Mrs. Neilan stated in the criminal case I am satisfied that on Thursday night 13 February 2003 Mr. Neilan did mark ten $50 notes and placed them at the top of the $50 cassette for them to be placed into the ATM the following morning prior to the shop doors opening for trade. I note that Mr. Neilan was not asked in cross examination whether he had marked ten $50 notes. I also find that on the following night when he checked the cassettes only 4 of the marked $50 notes remained. 49 I also accept the evidence that the ATM when dispensing money extracts the notes from the bottom of each cassette. I therefore do not believe it was possible for the six missing $50 notes to have been dispensed in the normal fashion to customers. 50 I therefore find that the sum of $300 was stolen from the respondent. 51 I am also satisfied that the applicant on the following morning did open the shop and placed both cassettes into the ATM. I do not believe that Mr. McLean played any part in placing the cassettes into the ATM on that day. This process had already been done prior to Mr. McLean's arrival at around 5.00am. 52 Mr. McLean was cross examined on his evidence that the applicant spoke to him briefly on the morning of 14 February 2003 stating: "Remember Tony, we loaded the ATM together this morning." This statement was denied by the applicant. Mr. McLean did not tell anyone of this comment until interviewed by the Police. In evidence he said that he did not tell Mr.Neilan about this statement as he was unsure why the applicant had been terminated by the respondent. He also stated that at the time of the applicant making the statement to him he thought the applicant might have made a mistake in loading the cassette and he was just covering himself. 53 Much time was spent in the cross examination of witnesses with respect to the "correct" commencing time of the applicant and the day to day proper functioning of the ATM. That the applicant came into the shop first thing in the morning, then left and then returned well prior to Mr. McLean attending for work at 5.00am, I do not think this was overly relevant to the issue of whether it was he who stole the six $50 notes. All it showed was that he had ample opportunity to take the marked money. 54 It was accepted by the applicant that if the Commission found that ten $50 notes had been marked by Mr. Neilan then the issue of the malfunctioning of the ATM was irrelevant. 55 Time was also spent in Mr. Neilan giving evidence as to what a print out of the electronic journal for 14 February 2003 would show. Would it show at what time(s) the ATM was opened and closed that day? Mr. Neilan gave evidence that he sought to obtain a print out for that day and rang and received instruction from the help desk of the administration company. In carrying out the instructions an error occurred which prevented a print out. An examination of the transcript showed that Mr. Neilan gave conflicting answers to the question as to whether the electronic journal for that day would show such information. He at first stated that he was unaware as to whether it did or not, then it could show it and then it does not show it. 56 That there had been "teething troubles " with the ATM again I do not believe is relevant to the issue before this Commission. No party brought to the Commission's attention a fault of the ATM that resulted in notes being dispensed from the top of either of the cassettes. 57 On the day in question only three persons had access to the ATM. The part owner of the business Mr. Neilan, the applicant and Mr. McLean. I do not believe that Mr. Neilan stole his own money and in the process sought to lay blame on the applicant. I accept the evidence of Mr. Neilan that prior to this incident he and the applicant had a good working relationship based on trust. 58 In cross examination Mr. McLean denied he had any financial problems at the time of the incident. He was not asked during cross examination whether during the period of the morning of 14 February 2003 when the applicant had left the shop and he was working alone, whether he had taken the money. 59 It was the respondent's submission that the applicant had the clear opportunity whilst the shop was locked and he was alone in the shop, to take the six marked $50 notes from the $50 cassette prior to placing both cassettes into the ATM. 60 It was the applicant's submission that Mr. McLean had the opportunity to steal the money on the morning of 14 February 2003 when he was alone in the shop. The applicant stated in his evidence that he left the shop that morning between 6.30am and 7.20am. Ex I showed each financial transaction between 5.55am and 8.05am. A close examination of Ex I showed that on two occasions there was a gap of four minutes between transactions Whilst alone Mr. McLean therefore had the opportunity to leave the shop counter proceed to the back of the shop, open the safe take out the key, open the ATM, take out the $50 cassette, take out the six $50 notes, shut the ATM and return the key to the safe. 61 Whilst as stated above Mr. McLean had the opportunity to steal the money on that morning whilst working alone, he was not asked in this case whether he had stolen the money. If as stated it was the applicant's case that it was Mr. McLean who had stolen the $300 then he should have been directly asked during cross examination. To not put such a question to Mr. McLean and then in final submission submit that it was he who stole the money in my view was inappropriate. 62 The case against the applicant is circumstantial. No one actually saw him steal the money. The comment allegedly made by the applicant to Mr. McLean on the morning of 14 February 2003 must be examined. The applicant stated that he did not make it. Mr. McLean has stated that he did. If the applicant had stolen the money that morning and had then been advised by Mr. Neilan that he was going to carry out a check of the ATM at the end of the day then it could be said that the applicant made the comment so as to include Mr. McLean in any future investigation. This alleged comment was made not long after the applicant had admitted to Mr. Neilan and in front of Mr. McLean that he alone had loaded the ATM machine. It is my finding that the applicant did make the comment to Mr. McLean whilst in a concerned frame of mind as a consequence of an impending investigation. 63 I had the opportunity to witness Mr. McLean as he gave evidence. He did not strike me as an outspoken person who would initiate an action without having to, but it indicates why he did not tell Mr. Neilan of this conversation at the time but did tell the Police when he made his statement. This is not a criticism of the person as in my view he sought to answer all questions in an honest manner. 64 The applicant was critical of the procedure carried out by Mr. Neilan in investigating the missing money. The applicant was asked by Mr. Neilan whether he had taken money to which he replied in the negative. The applicant has maintained that position ever since. I do not believe any further discussion or procedure would have altered the applicant's view. I also note the comments expressed again in Wang v Cresswell Industries Pty Ltd, : "The commissioner did not refer to other passages from the judgements in Byrne v Australian Airlines Ltd, but we consider nevertheless that that case provides strong support for the commissioner's conclusions that, on the basis of the seriousness of the misconduct established to his satisfaction in this case, the lack of procedural fairness which may have been involved did not render the dismissals harsh, unreasonable or unjust." 65 As previously expressed I have found that $300 was stolen from the respondent on 14 February 2003. I have had to take into consideration the credit of the applicant. Whilst it is true that he reported the money left out by Mr. Neilan, it is also true that he was terminated by a previous employer for stealing by altering boning figures and was not to be re-employed. The applicant was on salary at the time. 66 It is my finding, based on the balance of probability, that the applicant did take six $50 notes on the morning of 14 February 2003 ( that had been marked by Mr. Neilan) prior to Mr. McLean entering the shop. 67 As a consequence of this finding I do not find that the termination of the applicant by the respondent was neither harsh, unjust or unreasonable. 68 I therefore dismiss this application. This matter is now concluded. D.RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.