Billy John Fosse and Western Suburbs Leagues Club Ltd [2005] NSWIRComm 1015

Industrial Relations Commission of New South Wales

CITATION: Billy John Fosse and Western Suburbs Leagues Club Ltd [2005] NSWIRComm 1015

APPLICANT Billy John Fosse PARTIES: RESPONDENT Western Suburbs Leagues Club Ltd

FILE NUMBER(S): 3746 of 2003

CORAM: Patterson C

Unfair Dismissal - filed out of time following dismissal of criminal charges - Held - allowed to proceed due to representative error CATCHWORDS:

LEGISLATION CITED: Industrial Relations Act 1996

Griffith Ex-Services Club Ltd v Federated Liquor & Allied Industries Employees Union of Australia (NSW) Branch (1993) 51 IR 186 CASES CITED:

HEARING DATES: 09/08/2004 EXTEMPORE JUDGMENT DATE : 02/07/2005

APPLICANT Mr K Earl of Counsel Mr G Kinsey Solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr B Boon Solicitor Mr S Banister

DECISION:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: PATTERSON, C

4 March 2005

Matter No IRC 3746 of 2003

Billy John Fosse and Western Suburbs Leagues Club Ltd.

Application by Billy John Fosse re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2005] NSWIRComm 1015

1 This decision concerns an application for relief filed approximately eight months out of time. 2 The Applicant, Billy John Fosse, had been employed at the Western Suburbs Leagues Club (the "Club") for almost sixteen months when his services were terminated due to his alleged dishonesty. It had been his first job since finishing school in Year 10. He was nineteen at the time of dismissal and states that he has never previously been in "trouble". 3 Employed as a "beverage and gaming attendant" at the time of dismissal Mr Fosse was accused of making 28 Totalisator Agency Board ("TAB") transactions, over two days, totalling $19240, whilst on duty, and for which no payment was made. 4 Whilst initially placed on suspension, with pay, club management - in consultation with the TAB Audit Department - commissioned private investigators to examine Mr Fosse's alleged breach of procedure and fiduciary duty. 5 Mr Fosse's explanations of TAB equipment/systems failure, for example, which may have caused a $20 wager to register as $2000, were not accepted. In the assessment of his solicitor, Mr G Kinsey, there was "absolutely no evidence at all that (he) took this money, or bet on credit, or did absolutely anything wrong". A second issue raised by Mr Fosse was that he had never been placed on a TAB training course, as is the "usual practice", and that any allegation of his failure to comply with TAB protocol should, reasonably, be seen in that light. Indeed, when Mr Fosse had realised a problem with the system, or the manner of his operation of it, he claims to have contacted management and the TAB himself in search of a solution. 6 When the club's "intensive" investigation was completed, Mr Fosse was called to interview, with a witness of his choosing (his sister), and shown a "range" of the "evidence" gathered against him, including a summary interpretation of a video surveillance tape. His services were then terminated, without notice or payment in lieu thereof, and the matter was referred to Police (who placed him under arrest and locked him up sometime later). 7 Although this final interview was recorded on tape, with his permission, Mr Fosse was not provided with a copy or resultant transcript at the time of his dismissal or when he received his letter of termination a week later. 8 Neither was he provided at that time copies of any other material upon which the Respondent relied and/or passed on to Police such as: (i) the "Report" prepared by the private investigator; (ii) any "findings", advice or opinions provided to the Club by TAB; (iii) a copy of the video surveillance record (edited or otherwise) together with the investigator's interpretation summary; or