WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES STEPHEN LAROSE, APPLICANT v. KIAM CORPORATION PTY LTD, RESPONDENT CORAM COMMISSIONER S WOOD DELIVERED FRIDAY, 13 JULY 2001 FILE NO APPLICATION 1552 OF 2000 CITATION NO. 2001 WAIRC 03270 _______________________________________________________________________________ Result Application dismissed Representation Applicant Mr M Morgan of Counsel Respondent Mr J Uphill as agent _______________________________________________________________________________ Reasons for Decision. 1 This is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act, 1979 (the Act). The applicant Mr Stephen LaRose worked for the respondent as a mechanical fitter at their Leinster Nickel operation. The applicant was responsible for the repair and maintenance of equipment. The applicant says he was unfairly dismissed on 1 September 2000 in that he was dismissed for allegedly discussing with another employee the intended misappropriation of company property. The applicant does not seek reinstatement and instead seeks compensation for lost income. 2 The respondent initially challenged the jurisdiction of the Commission claiming that Mr LaRose was a contractor. This contention was withdrawn at a preliminary hearing. The respondent maintains that on 31 August 2000 its General Manager, Mr Andrew Ellison overhead two employees discussing their intention to steal a caddy welder from site. The respondent says that subsequent investigation identified the applicant, Mr LaRose, as being one of the participants in the conversation. After consultation with his client, Western Mining Corporation, a decision was taken to remove the applicant from site. The applicant was dismissed on 1 September 2000. 3 Mr LaRose says he was employed full time with the respondent from March 2000 to 1 September 2000. Mr LaRose says he had a problem getting pay issues resolved. He says he also had difficulties obtaining work clothing and a workplace agreement. There were also problems experienced on site due to a mobile scaffold falling over. He says because of these combination of problems at one stage he spoke to another contractor on site, Skilled Engineering, regarding the terms of an employment contract they might offer. 4 On Thursday 31 August 2000, in the afternoon just prior to leaving site, Mr LaRose spoke to a Rebecca on the telephone regarding his pay. He says she did not know what was happening with his pay and he was furious at this. He was flying out that day with two other employees, Mr Luke Hudson and Mr Gary Kruger. Mr Kruger was a Western Mining employee and a maintenance team leader (effectively their boss). Mr LaRose went and had a couple of beers and got some food, then went to the airport with the other two employees. He says they were talking about the scaffold incident and his pay difficulties. He says on the plane he sat opposite the aisle from Mr Hudson and had a three-way conversation with Mr Hudson and Mr Vernon Reed, a Western Mining storeman. 5 Mr Hudson and Mr LaRose were due to fly back to site on the Monday. On Friday, 1 September 2000, Michelle Greenwell on behalf of the respondent called Mr LaRose to advise him that he was not needed back on site by Western Mining. He says he asked if he had been sacked and she said, “Not at this particular time. Come in on Monday and we’ll sort it out.” He rang Mr Hudson, and found out that Mr Hudson had also been given the same advice. They then went to the respondent’s offices in Rockingham. He says they were told by Ms Greenwell that Western Mining did not require them back on site but she did not know why. He says he did not believe her and rang one of his colleagues at site but could not get any further information. He then spoke to Mr Robbie Ellis, another team leader who informed him of the allegations. He says Mr Ellis told him that it was alleged that Mr LaRose was intending to steal a power generator. 6 Mr LaRose and Mr Hudson had a second meeting with Ms Greenwell who told them that the reason they were sacked was because their conversation was overheard by Mr Andrew Ellison, the General Manager on the way home in the plane. He says this was his last contact with the respondent. He says he thinks he was sacked because he was “rocking the apple cart” and at about the same time he says the respondent’s contract was under threat. 7 Mr LaRose under cross examination denied that Mr Hudson and he talked about having approached Skilled Engineering to take over the contract and says all conversation at the airport was with Mr Kruger and Mr Hudson (ie not simply with Mr Hudson). He says they were out the front of the airport, not in the terminal, because Mr Kruger is a smoker. He does not deny that on the plane Mr Hudson and he continued a conversation and were critical of the respondent. 8 Mr Hudson was called to give evidence but effectively not examined by counsel for the applicant. As Mr Hudson had entered into a confidentiality agreement with the respondent, arising from a conciliation conference before the Commission as presently constituted. Mr Hudson stated he did not wish to violate the agreement. He was not questioned further by counsel for the applicant or by Mr Uphill for the respondent. 9 Mr Ellison, the General Manager of the respondent gave evidence that in the airport on 31 August 2000 he heard two people talking about “Kiam”. He says he went and stood side on to them and about two feet away from them. The two men talked about a safety incident on the Leinster site. He says they indicated that Western Mining and Kiam were looking to blame people for the incident. Mr Ellison says they talked about a discussion one of the men had had with the payroll officer in Kalgoorlie. They talked about discussions they had with Skilled Engineering and how they had asked them to see if they could take the contract off Kiam and how much they would get paid by Skilled Engineering. He says they discussed whether they could get more money and Mr LaRose indicated he felt he was owed money by Kiam and to obtain this he could steal a caddy welding machine off the company as a repayment of the money. After 15 or 20 minutes they were approached by another person and there was five minutes general discussion on various things to do with Western Mining but nothing of a derogatory nature. All three men went outside and Mr Ellison assumes they had a cigarette before boarding the plane. He says he did not know who the two people were at the time as he had never seen them before in his life. On the plane Mr Ellison sat behind the men and they continued their conversation criticising the respondent and saying they hoped that Skilled Engineering would get the contract. He says Mr Hudson was directly in front of him and Mr LaRose was on his left on the other side of the aisle. 10 When Mr Ellison returned to Perth he contacted his personnel department to confirm which Kiam employees were on the flight and check their seat numbers. He says he checked to see whether there was any money owing to those employees. Once it was confirmed that Mr Hudson and Mr LaRose were the two employees on the plane, and it was confirmed from Mr Reece Power in Kalgoorlie that no monies were owing to them, he made a decision to terminate their services. Prior to the termination he instructed the personnel officer Ms Greenwell to talk to the Kiam site superintendent Mr Peter Smith and have him inform Western Mining of the conversation. He says to save aggravation the company took a decision to advise Mr Hudson and Mr LaRose that they were being put off as Western Mining was reducing numbers on site. He instructed Ms Greenwell to give effect to the terminations. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2447 81 W.A.I.G. He then instructed Ms Greenwell to talk to them again a couple of days later as they had spoken to Western Mining who had told them that it was a Kiam issue not a Western Mining issue 11 Ms Michelle Greenwell, the personnel officer for Kiam gave evidence that Mr Ellison gave her a call on 31 August 2000 when he got off the plane. She says he asked her to find out who were the two employees on the plane. She telephoned the site supervisor Mr Smith who advised her of their names. They were the only two Kiam employees on the flight. She was also asked to enquire whether there was any substance in their complaints. She conveyed the information from Mr Smith to Mr Ellison who advised her to ring Mr LaRose and Mr Hudson and tell them that they were not required to return to site. When they asked why they were not to return to site she advised them to come in on Monday and she would discuss it with them. She says that John Brown and her told the two men that they would not need to return to site because the crew was being cut down. She says they decided to do this to avoid animosity. Following that, either Mr Hudson or Mr LaRose, she could not remember which, rang her up indicating that he did not believe her concerning the reasons she had stated for the termination. She was told they had contacted somebody from Western Mining who had said that their employment was terminated because of a discussion overheard on the plane. She advised them to come in again and discuss it. She says they came in for another meeting and they were angry that she had not been up front with them in the first place. The real reason for their dismissal was then explained to them. 12 The key consideration is whether the evidence of Mr LaRose or that of Mr Ellison is to be preferred. It is not seriously contended that there would not be valid grounds for dismissal if the employer was reasonably of the belief that an employee was planning to steal from the employer. Instead Mr Morgan on behalf of the applicant says that the conversation did not relate to this, the applicant was summarily dismissed and there was no procedural fairness in the termination as there was no proper investigation and the allegations were not put to Mr LaRose. He says the onus lies with the respondent to prove that the summary dismissal was justified. 13 The only evidence of a conversation I have is that of LaRose and Mr Ellison. These are the only two witnesses who have given evidence about conversations at the airport and on the airplane. The other participants in the conversation according to Mr LaRose were Mr Hudson and Mr Kruger. Mr Hudson’s evidence was so restrained as to doubt why he was called to give evidence at all. Mr Kruger was not called to give evidence. It is Mr Kruger who could have added considerable weight to verify Mr LaRose’s account of events if the applicant is to be believed. The evidence of Ms Greenwell does not add to the substance of the allegation against the applicant. Her evidence is really about the process of the termination which was flawed in my view by the lack of honesty in advising Mr LaRose of the proper reason for his termination. The other issue of importance is that Mr LaRose, as would be normally expected, did not have the opportunity to answer the allegation against him. 14 I have no doubt that the process of the dismissal was flawed by its lack of initial directness and honesty. There is no suggestion of a threat or other reason which might otherwise be used to explain why Mr LaRose was initially misled. He was finally given the correct reason only after his own investigation had disclosed it (even though the property in question was described as a power generator). 15 This procedural flaw is but one factor in the question of unfair dismissal. A dismissal may not of necessity be deemed unfair simply by virtue of a procedural flaw Shire of Esperance—v- Peter Maxwell Mouritz 71 WAIG 891 @ 895. Nevertheless, I do not consider the process of investigation to be flawed. In that sense the evidence is clear and unchallenged that Mr Ellison caused enquiries to be made as to who were the Kiam employees on the flight and were they owed monies which might lend legitimacy to their complaints. Having received an answer to these questions Mr Ellison decided to terminate their services and to pay them notice in lieu. This is also not seriously challenged. Mr Morgan for the applicant says that Mr LaRose was summarily dismissed and the onus lies with the respondent to prove their case. I do not find that Mr LaRose was summarily dismissed. Irrespective, as Kennedy J states in the Shire of Esperance decision at page 895 the evidential burden is— “to show that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue”. The respondent has achieved this. 16 Mr LaRose was paid 8 hours notice in lieu and Mr Hudson was paid for 38 hours. The period of notice for Mr LaRose, on the evidence, was considered correct as the respondent deemed Mr LaRose to be a contractor. This issue was originally contended by the respondent and then withdrawn at preliminary hearing. The period of notice would seem to be inadequate in light of section 170CM of the Federal Workplace Relations Act 1996. However, this matter was not raised by either party at hearing. 17 I prefer the evidence of Mr Ellison to that of Mr LaRose. It is not significant, as Mr Uphill for the respondent would have it, that Mr LaRose has a previous offence for stealing. This occurred many years ago and has no relevance to this matter in substance or for an assessment of credibility. I am, however, persuaded by the plain and direct manner of Mr Ellison in giving his evidence. I am particularly persuaded by the thought that, if Mr Ellison did not hear the conversation as he claims to have, then how could he have known so much of the detail of the conversation. The subject matter of the conversation is not challenged except for discussion about an intention to steal a caddy welder. Mr Ellison did not on his evidence, which I accept, know the two men. He made inquiries as to who they were and whether they were owed monies. To come to a different conclusion I would need to perceive this, as Mr LaRose would maintain, as a case where Mr Ellison has engineered matters to dismiss Mr LaRose. Having viewed both men giving evidence I do not believe, in all probability, that is how best to characterise this matter. This is weighed against a backdrop of Mr LaRose, on his own evidence, being greatly disaffected with the respondent. I accept the evidence of Mr Ellison, which was quite straightforward and unchanged under cross- examination. He discovered who the two men were. He was troubled by their adverse comments, particularly the discussion regarding an intention to steal company property. He sought advice on the validity of their complaints and the views of the company to which his company was contracted. He then decided that he could not trust the two employees any further and instructed that their services be terminated. 18 I find the conversation between Mr LaRose and Mr Hudson, witnessed by Mr Ellison at the Leinster airport, included discussion about an intention to steal company property and led to a breakdown in trust between employer and employee sufficient to warrant dismissal. 19 For the above reasons I would dismiss the application. 2001 WAIRC 03260