Industrial Relations Commission of New South Wales CITATION: The Australian Workers' Union (on behalf of Stojon Jonceski) v BlueScope Steel [2006] NSWIRComm 1093 APPLICANT The Australian Workers' Union (on behalf of Stojon Jonceski) PARTIES: RESPONDENT BlueScope Steel FILE NUMBER(S): 6256 of 2005 CORAM: Macdonald C CATCHWORDS: Unfair dismissall - summary dismissal - claim by employee for overtime shift cancelled by employee and not worked by employee - investigation by Respondent - overtime book accessed in supervisor's office and altered - confused mind of employee rejected - Commission declines to intervene LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Pastrycook Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White [No.3] (1990) 35 IR 70 Andrew Omopoulos and United Parcel Services Pty Limited (unreported, Connor C, IRC 8065/01, 10 October 2002) HEARING DATES: 30/03/06 DATE OF JUDGMENT: 06/01/2006 APPLICANT Mr D Hancock The Australian Workers' Union, New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr A Dansie Australian Industry Group New South Wales Branch DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MACDONALD C 1 June 2006 Matter No IRC 6256 of 2005 The Australian Workers' Union, New South Wales (on behalf of Stojon Jonceski) and BlueScope Steel Application by The Australian Workers Union, New South Wales on behalf of its member Stojon Jonceski re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1093 1 This is an application by Stojon Jonceski ("the Applicant") for unfair dismissal against BlueScope Steel ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation and Directions on 2 February 2006 before myself. The Applicant was represented by the Australian Workers Union, New South Wales ("the Union"). The Respondent was represented by Australian Industry Group. 3 The matter remained unresolved and was set down for a Hearing. A filing program for witness statements was put in place. 4 The Hearing took place on 30 March 2006, before myself, sitting in Wollongong. 5 At the Hearing, the Union was represented by Mr D Hancock, union official. The dismissed employee, Mr Stojon Jonceski, was not called as a witness. No witness statement was filed by Mr Jonceski. The Union wrote to the Commission by letter of 22 February 2006, advising that the only material being relied upon for evidence-in-chief is that contained in the initiating unfair dismissal application (filed 1 December 2005). The Union reserved its right to reply to any evidence filed by the Respondent. Otherwise, the Union would be relying on submissions put on the day of the Hearing. 6 At the Hearing, the Respondent was represented by Mr A Dansie of Australian Industry Group. The Respondent had filed two witness statements: · Mr Paul Cugaly - Manager of the Plate Processing Department · Mr Bozo Puljic - Technical Co-ordinator of the Plate Processing Department The above two witnesses were not required for cross-examination, as advised by Union correspondence of 27 March 2006. BACKGROUND 7 Mr Stojon Jonceski ("the Applicant") had been employed for some 25 years by the Respondent. 8 The Applicant was summarily dismissed following an investigation into claims by him that he had not been paid overtime for certain shift work allegedly worked by him. That certain shift work allegedly worked by him, appeared as an entry in the Respondent's overtime record book but had not been worked by the Applicant. FINAL SUBMISSION For the Union 9 Mr Hancock, for the Union, put the following in final submissions: (a) The employee, Mr Jonceski, believed he had worked the shift in question (Thursday, 20 October 2005). (b) Jonceski's belief caused him to view the overtime book in the supervisor's office. He observed that his name had been whited out for working the shift in question. He believed he had worked the shift in question (some two weeks earlier) and he therefore entered his name in the whited out area - in order to claim overtime for the shift in question. (c) Jonceski rejected that he sought to claim an overtime payment by falsifying the overtime book to show that he had been present for that shift when, in fact, he had not been present. (d) Jonceski had made the entry in the overtime book, some two weeks after when the shift in question took place, because he believed he had worked that shift in question. He had worked other overtime shifts since and within the two weeks prior to his entering his name in the whited out section, and the working of other overtime shifts had confused him into thinking he had also worked the shift in question. (e) The Union sought reinstatement. For the Respondent 10 Mr Dansie, for the Respondent, put the following in final submissions: (a) The Company summarily dismissed the Applicant from his employment with the Respondent on 16 November 2005, on the grounds of serious and wilful misconduct by the Applicant on or about 3 November 2005. (b) On or about 3 November 2005, the Applicant attempted to claim payment for an overtime shift that he was not entitled to receive (the " incident "), by writing his name into the Respondent's overtime book. (c) On 18 October 2005 the Applicant agreed to work an overtime shift on 20 October. As a consequence, Mr Brian Maxwell (Shift Supervisor) recorded the Applicant's name in the Respondent's overtime book; (d) On 19 October 2005, the Applicant advised Mr Maxwell that he no longer wanted to work the overtime shift on Thursday 20 October 2005. Mr Maxwell agreed to cancel the overtime shift and placed a line through the Applicant's name in the overtime book to indicate that the Applicant would not be working on 20 October 2005. (e) The Applicant did not work an overtime shift on 20th October 2005. (f) On Friday, 4 November 2005, the Applicant approached Mr Christopher Kimber (another Shift Supervisor) and asked him why he was not paid for working an overtime shift on Thursday, 20 October. This prompted Mr Kimber to check the overtime book where he noticed the Applicant's name in the overtime book in handwriting that Mr Kimber did not recognise. On the same day, the Applicant approached Mr Maxwell and made similar inquiries as to why he had not been paid for working an overtime shift on 20 October. Following an investigation the Company ascertained that someone other than the Shift Supervisors had altered the overtime book. (g) The Applicant initially denied the allegation of altering the Respondent's overtime book on at least two separate occasions (i.e. on 9/11/05 and 11/11/05). It was only after he was presented with overwhelming evidence against him that the Applicant finally admitted his wrongdoing. Such denials demonstrate that the Applicant cannot be trusted, said Mr Dansie. (h) The Applicant's attempt to defraud the Respondent amounted to a breach of the Respondent's Cardinal Rule, namely "not to steal or deliberately damage Company property or that which belongs to other employees or visitors on the plant or defraud the Company". The Applicant confirmed his awareness of the Cardinal Rules during his interview on 11 November 2005. He also acknowledged that such a cardinal breach is a dismissible offence. (i) During the interview on 11 November 2005, the Applicant stated that the reason he wrote his name in the overtime book was because " I have problems with my kids, son and daughter, stomach upset. It was a bad week for me ". It is apparent from the further questioning during the interview that the Applicant was referring to events that occurred after he had altered the overtime book. Accordingly, the subsequent poor health of the Applicant's children is no justification for his earlier attempt to falsely claim an overtime payment. (j) The Applicant has provided no reasonable explanation for his misconduct. He has also failed to provide any reasons why the Respondent should not proceed to terminate his employment on account of serious and wilful misconduct. (k) When considering what action to take in response the incident, the Respondent considered the Applicant's previous employment history. This history reveals that the Applicant has received regular warnings for poor attendance and poor timekeeping. In 2004 the Applicant was suspended for 3 days for unauthorised vehicle entry when he drove onto the plant into a restricted vehicle area. In 1988, the Applicant was dismissed for striking another employee and then subsequently reinstated after serving a period of suspension. The Applicant was also suspended in 1988 for driving a crane unauthorised without a crane driving accreditation. The above employment history illustrates that the Applicant is not a trustworthy employee. (l) The Respondent was aware of the Applicant's age and length of service when it decided to terminate his employment. The Respondent submits that the gravity of the Applicant's misconduct and his poor employment history outweighs considerations as to age and length of service. (m) The Respondent concedes that the onus of proof for establishing the Applicant's misconduct in these proceedings rests with the Respondent ( Pastrycook Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White [No.3] (1990) 35 IR 70 ("the Pastrycooks' Case"). The Applicant has admitted to his misconduct and has chosen not to dispute the Respondent's evidence. Accordingly, the essential ingredients of the alleged misconduct are not in dispute. (n) The onus of proof to establish from the evidence whether there is unfairness rests with the Applicant. In view of the Applicant's failure to bring any evidence to support his case, the Commission should infer that no favourable evidence exists to support the Applicant's case [ Jones v Dunkel (1959) 101 CLR 298]. (o) For all of the above reasons the Respondent submits that the dismissal of the Applicant was neither harsh, unjust or unreasonable. CONSIDERATION 11 The Commission has before it an unfair dismissal application filed by the Union on behalf of Stojon Jonceski ("the Applicant"), who was dismissed on the ground of serious and wilful misconduct. That is, the Respondent dismissed the Applicant for his attempt to claim payment for an overtime shift (20 October 2005), that he was not entitled to receive. The Respondent contended that the claim for the overtime payment was not the result of confusion (as stated by the Union on behalf of the Applicant), but rather the result of an intentional false claim for that overtime benefit. Onus 12 The onus for proving that the facts existed to support the Respondent's decision to dismiss on the ground of serious and wilful misconduct, is with the Respondent: the Pastrycooks' Case. The Applicant's Evidence 13 The applicant did not file a witness statement, nor a statement in reply. The Applicant did not present himself as a witness. He did not make himself available to be cross-examined by the Respondent. CONCLUSION 14 The Respondent's Case against the Applicant is set out in detail in its Final Submissions. The Final Submissions set out: (a) A chronological sequence of events surrounding the claim for an overtime shift not worked. (b) Conversations between the Applicant and the Respondent's officers. In particular, the Applicant had a witness(es) present for the 9 and 11 November investigative conversations. At the 11 November meeting, the Applicant had a union delegate and union official (Dave Hancock) present. (c) That during the meeting of 9 November, the Applicant said he did not know who had entered his name in the overtime book. During the meeting of 11 November, the Applicant eventually admitted he made the entry in the overtime book. (d) That for the Applicant to have entered his name in the overtime book, he had to enter the Shift Supervisor's Office where that book is stored. He would have needed to wait until the shift supervisors were not present, in order to enter his name in that book. Such action demonstrates a deliberate intent to obtain a benefit, to which the Applicant was not entitled. (e) Case Law concerning employees dishonestly dealing with their employer's property in order to obtain a benefit for themselves and the approach of industrial tribunals to dealing with such offences: Andrew Omopoulos and United Parcel Services Pty Limited (unreported, Connor C, IRC 8065/01, 10 October 2002). 15 Having considered the filed witness statements of the Respondent's two witnesses, the detailed Final Submissions of the Respondent, the failure of the Applicant to file any witness statement(s) and his failure to appear as a witness and be cross-examined, the Commission rejects the Union's submission that the Applicant's overtime claim was based around some confusion or personal circumstance of the Applicant. 16 The Commission finds that the Respondent has satisfied the burden of proof placed upon it by its decision to dismiss the Applicant for serious and wilful misconduct. 17 The Commission declines to intervene in the Respondent's decision to dismiss the Applicant. A Macdonald 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.