Industrial Relations Commission of New South Wales CITATION : Peden v Lake Macquarie Refrigeration Pty Ltd [2003] NSWIRComm 50 APPLICANT Andrew Peden PARTIES : RESPONDENT Lake Macquarie Refrigeration Pty Ltd FILE NUMBER: IRC 1653 of 2000 CORAM: Harrison DP CATCHWORDS : Unfair dismissal - application for relief refused - employee undertaking work on own account - theft of customer from employer - breach of trust and confidence. Held - termination of employment not harsh, unreasonable or unjust. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 02/14/2003 EXTEMPORE JUDGMENT DATE : 03/06/2003 APPLICANT Mr G Kerr Solicitor of Turnbull Hill Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr S Austin of Counsel instructed by Ms A Engel, Solicitor of Braye Cragg Solicitors JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 6 March 2003 Matter No IRC 1653 of 2000 ANDREW PEDEN AND LAKE MACQUARIE REFRIGERATION PTY LIMITED Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm 50 1 The application in this matter was filed on 14 April 2000 and first subject to proceedings before the Commission as presently constituted on 9 November 2001, having been reallocated from Cambridge C. who conducted proceedings in the matter throughout the year 2000. 2 It was established that settlement could not be reached by agreement between the parties. Further scheduling of the matter was deferred pending the outcome of proceedings in respect to criminal charges on foot. 3 The matter was subject to Mention on 8 November 2002. Mr G Kerr, Solicitor of Turnbull Hill, appearing on behalf of Mr Peden, the applicant, advised that Local Court proceedings, and an associated appeal, had concluded and that the applicant wished to press the matter to arbitration. Directions issued to bring the matter to hearing on 14 February 2003. 4 On hearing, Mr Kerr continued his appearance on behalf of the applicant. Mr S Austin of Counsel, instructed by Ms A Engel, solicitor of Braye Cragg Solicitors, appeared on behalf of Lake Macquarie Refrigeration Pty Ltd ('the Company"), the respondent employer. 5 Mr Kerr brought evidence from Mr Andrew Peden. 6 Mr Austin brought evidence from Mr David Burgess, owner of the Company; and Mr Mackton Chapman, a customer of the Company. Mr Austin also tendered statements from Mr S Benson and Mr D Jeffs, who were not required for cross examination. AGREED FACTS 7 There is no disagreement between the parties in relation to the basic facts. 8 The applicant commenced work with the Company as an apprentice refrigeration mechanic at the age of 16. On completion of his apprenticeship in 1998 the applicant continued his employment with the Company as a tradesman. 9 There was an arrangement between the applicant and Mr Burgess that the applicant could carry out limited private work, providing it was performed outside of normal business hours and restricted to family and friends. 10 The applicant's employment continued without incident until the events leading directly to his dismissal on 25 March 2000. 11 In August 1999 the applicant attended the residence of Mr Mackton Chapman for the purpose of repairing a domestic refrigerator. Mr Chapman was a friend of the applicant's father. The applicant provided Mr Chapman with an invoice in the amount of $470.00, which Mr Chapman paid by cheque, made out to Lake Macquarie Refrigeration. Subsequently, the applicant endorsed the cheque by signature on the reverse and cashed it at a local butchery, owned and operated by a friend of the applicant. 12 In early March 2000 Mr Chapman made a telephone call to the Company seeking a guarantee service as he was unhappy with the operation of the refrigerator repaired by Mr Peden. This call was taken by Mr Burgess, who then became aware that Mr Peden had carried out the work for Mr Chapman and had cashed a cheque made out to the Company. 13 Mr Burgess put these events to Mr Peden on 25 March 2000. Mr Peden's employment was terminated and criminal proceedings instituted concerning disposal of the cheque. Mr Peden was convicted in the Local Court. This conviction was overturned on appeal to the District Court. THE EVIDENCE 14 Mr Chapman's evidence is that he had looked up the number for Lake Macquarie Refrigeration in the telephone book and that the repairs to his refrigerator were carried out during normal business hours. 15 Mr Chapman deposed that when the applicant arrived to repair his refrigerator he was reminded by the applicant that he was a friend of the applicant's father. Mr Chapman denies that any arrangement was made by him via the applicant's father for refrigeration repairs to be undertaken. Mr Chapman further denies any recollection of meeting the applicant at the local bowling club, though he concedes that this may have occurred in the form of a brief encounter but considers it most unlikely. 16 This evidence is directly contrary to that of the applicant who asserts that the arrangement to repair Mr Chapman's refrigerator was promoted by his father as a favour to assist Mr Chapman. There is no corroborative evidence brought by the applicant to support this contention. 17 Mr Chapman's evidence is that he paid for the repairs to his refrigerator by personal cheque, made out to the Company, and was later reimbursed by his insurer. 18 The evidence of Mr Burgess reveals a thorough and detailed investigation into the disposition of the cheque provided by Mr Chapman. CONCLUSION 19 An ex tempore decision was given at the conclusion of arbitration proceedings, reproduced below for the benefit of the parties: HIS HONOUR: The gravamen of this issue is whether the job carried out by Mr Peden, for Mr Chapman, was within the employer's policy of work for family and friends, close or otherwise. There is little evidence about the foundation and the basis of that policy. The evidence that is before me can be found in the evidence of Mr Burgess. This suggests, and leads me to the conclusion that, that policy was not a licence to compete with the employer in his own time, but a concession to the employee, Mr Peden, to provide discounted or free services to family and friends, in his own time, that is, those people who had supported him in his life and his education and the acquisition of the skills that he obtained in employment with Mr Burgess, and so repay them for their involvement with him. I am compelled to the conclusion that the job for Mr Chapman came to Mr Peden through the employer. I am compelled to the conclusion that the job was carried out in ordinary working hours, described as those that he undertook for the employer. The use of the company invoice, and the disposition of the cheque, are ancillary issues so far as the carrying out of the job is concerned. The most fascinating thing about the invoice, so far as I am concerned, is the amount charged. If I look at attachment D to Mr Burgess' evidence, exhibit 4, it discloses there that the supplier price for the (refrigerator) compressor was $88.80 plus 12 per cent sales tax, a total of $99 and 45 cents. The invoice, exhibit F charges that out to Mr Chapman at $220. Further parts are charged at a total of $45, and three and a half hours of labour is charged at $175. Hardly mates rates. Hardly suggestive that it was done within the policy of work for family and friends. I find that the stealing of the job by Mr Peden from his employer, when he had been placed in a position of absolute trust and confidence, to be a reprehensible breach of that confidence, and attracting the penalty of dismissal as determined by Mr Burgess. There is no basis for the intervention of the Commission in this matter. The application is discharged. 20 Matter No IRC 1653 of 2000 is so concluded. oo0oo 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.