Industrial Relations Commission of New South Wales CITATION : Fowler and Mangrove Country Club Pty Ltd [2003] NSWIRComm 225 APPLICANT Victor Fowler PARTIES : RESPONDENT Mangrove Country Club Ltd FILE NUMBER: IRC 1956 of 2003 CORAM: Harrison DP CATCHWORDS : Application re unfair dismissal pursuant s84 of the Act - allegation of theft. Held - allegation not sustained - dismissal harsh, unreasonble and unjust - compensation awarded. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 07/14/2003 EXTEMPORE JUDGMENT DATE : 07/25/2003 APPLICANT Mr R Ferry, Solicitor Ferry's Law Firm LEGAL REPRESENTATIVES: RESPONDENT Ms M Warren Registered Club's Assocation of NSW JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 25 July 2003 Matter No IRC 2003/1956 VICTOR FOWLER AND MANGROVE COUNTRY CLUB LTD Application by Victor Fowler re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2003] NSWIRComm 225 1 The application in this matter was filed on 8 April 2003 and subject to Conciliation and Directions proceedings on 29 April 2003 on which occasion the parties applied for and were granted a two week adjournment to allow further investigation and consideration of the issues. The matter was adjourned to further conciliation and directions on 13 May 2003. 2 On 13 May 2003 Ms M Flynn, Solicitor of Ferry's Law Firm, appeared on behalf of the applicant, Mr V Fowler. Mr R Tait of the Registered Clubs Association of New South Wales (RCA) appeared on behalf of the Mangrove Country Club Ltd ("the Club") with Ms A Roberts. 3 It was established that the matter could not be settled by agreement between the parties and Directions issued for the filing and service of evidence to be relied upon. The matter was adjourned to 14 July 2003 for Hearing. 4 Further proceedings took place by teleconference on 20 June 2003 for the purpose of amending Directions, however, the matter remained for hearing as scheduled. 5 On Hearing Mr R Ferry, Solicitor of Ferry's Law Firm, appeared on behalf of the applicant with Ms Flynn. Ms M Warren of the RCA appeared on behalf of the respondent. 6 Mr Ferry brought evidence from Mr Fowler, who prior to dismissal had been employed by the Club as a barman; and Ms P Walsh, employed by the Club as a bar attendant. 7 Ms Warren brought evidence from Mr G Freeman, Treasurer of the Club; Ms A Roberts, employed by the Club as Office Administrator; Mr B Lane, employed by the Club as a bar person; and Ms K Kaihau, employed by the Club as a casual bar attendant. THE EVIDENCE 8 The evidence is that the applicant was employed by the Club for approximately 11 years as a general hand/greenkeeper. There was a break in employment and the applicant was re-engaged from November 2001 as a long term casual employee in the bar area. On 1 May 2002 the applicant was promoted to Floor Manager, a full time position, subsequently returning to casual employment as a barman from 21 October 2002 working approximately 28 to 30 hours per week. 9 The evidence is that throughout his employment the applicant was well regarded and enjoyed a close personal friendship with Mr Freeman, the Club Treasurer. 10 It is established that the applicant had been subject to reprimand for cashing cheques for Club members contrary to Club policy and, on the evidence of Mr Freeman, had been spoken to concerning performance of duties, however, there had never been any question in respect to honesty. 11 Termination of the applicant's employment arose consequent upon discovery of a shortage of $50.00 from the Club safe on 12 March 2003. 12 The applicant worked from 3.00 pm to 9.30 pm as a barman on 11 March 2003. At the end of the shift, the applicant and Ms Kirri Kaihau, the only other employee rostered on that day, counted and balanced the day's takings from bar tills, TAB, Keno and poker machines. Within the takings were two bags of one dollar coins which the applicant counted and weighed, tagging one bag at $1,000 dollars and the other bag at $254. The takings balanced. 13 There is an admission by the applicant and Ms Kaihau that they failed to strictly adhere to required procedures; which are that one person counts and balances the cash holding, and another employee conducts a second count to verify the result obtained by the first employee. On 11 March 2003 the applicant and Ms Kaihau undertook the counting and balancing procedure as a co-operative and collective effort, the consequence of which was that the verification process was not undertaken. 14 Ms Petrina Walsh opened the safe on the morning of 12 March 2003 and during the course of establishing till floats was required to check and balance monies held in the safe. During the course of these procedures Ms Walsh deposed that she discovered the bag of one dollar coins tagged by the applicant at $254, holding only $204. 15 Ms Walsh undertook these procedures without assistance as she was working alone in the Club at the time of discovery of the discrepancy. She immediately telephoned Mr Lane, then employed by the Club as a bar supervisor. 16 Mr Lane's evidence is that he informed Ms Walsh to suspend all activities in cash handling; he attended the Club, checked the cash, discovering that the bag tagged as holding 254 one dollar coins held only 204 one dollar coins. 17 Ms Walsh and Mr Lane are no longer employed with the Club. 18 The evidence of Ms Arlyn Roberts is that she has been employed at the Club as Office Administrator from October 2001. Ms Roberts deposed that when she was first employed at the Club money went missing on a regular basis. Ms Roberts deposed that on her employment at the Club she discovered that cash handling procedures required significant improvement and set about putting in place a range of procedures. 19 Ms Roberts deposed that she examined the documentation of cash balance for 11 March and 12 March 2003, which satisfied her that the $254 tag on the bag of one dollar coins was not correct. Ms Roberts gave evidence of investigation by herself, Mr Freeman and Mr Ron Jones, a Director of the Club. This investigation involved a review of the documentation and interview of relevant staff. 20 Ms Roberts deposed that Mr Fowler was well aware of cash handling difficulties, putting that when Mr Fowler was employed at the Club as Floor Manager he had discussed with her the issue of missing monies on a regular basis, proposing that a trap be set to catch the offenders and he had thought there were a couple of people involved. 21 Ms Roberts' evidence is that since March 2003 the Club has experienced minimal cash discrepancies "not the regular 20, 30, 50 dollars, two or three times a week". 22 The evidence of Ms Roberts is that she was aware that Mr Freeman did not wish to terminate Mr Fowler's employment, affording Mr Fowler an opportunity to further discuss the matter, which he refused. 23 Mr Fowler emphatically denied theft of funds from the Club and requested access to the surveillance video, which he contended would vindicate him. This was refused. 24 The evidence is that a short time after the termination of Mr Fowler's employment, he obtained a casual position at a hotel, working on a regularly rostered basis with earning potential greater than the position from which he was dismissed. It was further established from Mr Fowler's evidence that he informed the Club Plus Superannuation Fund that he retired from the hospitality industry and has collected superannuation benefits. 25 Ms Warren submitted that these factors should be taken into consideration when assessing the credibility of Mr Fowler and determination of the matter. 26 Mr Ferry submitted that the requisite standard of proof that Mr Fowler had stolen $50 from the Club has not been met. 27 An ex tempore decision was delivered in transcript of proceedings on 14 July 2003 in the following terms: The proper test to apply in this matter is one of a balance of probabilities, as discussed in Briginshaw and Briginshaw , to which I'm referred by Ms Warren. I am unable to come to the necessary comfortable level of satisfaction required by that test, that the applicant in this matter is guilty of the theft of $50 in $1 coins from the safe. There has been a discrepancy, there has been a failure to follow the procedures, and I would observe that had the procedures been followed then perhaps the finger would not have pointed at the applicant. But there is not sufficient evidence in the material presented to me to come to the necessary level of comfortable satisfaction. Accordingly I determine the dismissal of Mr Fowler's employment to be harsh, unreasonable and unjust. I find that reinstatement and re-employment are impractical, and determine compensation at six weeks wages. 28 Orders issue herewith. 29 Matter No IRC 2003/1956 is so concluded. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 25 July 2003 Matter No IRC 2003/1956 VICTOR FOWLER AND MANGROVE COUNTRY CLUB LTD Application by Victor Fowler re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. ORDER Pursuant to section 89(5) of the Industrial Relations Act 1996 Mangrove Country Club Ltd is ordered to pay Mr Victor Fowler the amount of $3,510 (three thousand five hundred and ten dollars) within 21 days of the date of this decision. I so order. The Hon. R W Harrison Deputy President 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.