Dean v Pal-Tech Holdings Pty Ltd t/a Pal-Tech Services [2005] QIRC 38 (2005) 178 QGIG 363

[Extract from Queensland Government Industrial Gazette, dated 15 April, 2005, Vol. 178, No. 16, pages 363-368] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Steven Guy Dean AND Pal-Tech Holdings Pty Ltd t/a Pal-Tech Services (No. B1201 of 2004) DEPUTY PRESIDENT BLOOMFIELD 1 April 2005 Application for reinstatement – Issue about reasons for overtime – Applicant persistently failed to provide report – Witness evidence – Witness credibility – Finding that amount of overtime claimed was not worked – Finding that manner of applicant’s termination was unfair – Finding that termination, nonetheless, was justified – Reinstatement impracticable – Finding that any order for payment of compensation is not justified. DECISION Background Mr Steven Dean seeks relief regarding his alleged unfair dismissal by Pal-Tech Holdings Pty Ltd trading as Pal-Tech Services (Pal-Tech) on 14 July 2004. Mr Dean first commenced his employment with Pal-Tech on 20 April 2002 as a field repair technician. Pal-Tech repairs, services and maintains electronic equipment with a large part of its work involving the repair and servicing of electronic gaming machines as agent for Getronics in the Townsville and Cairns districts. Getronics is the principal contractor involved in the servicing and maintaining of gaming machines monitored by Unitab in clubs and hotels. Mr Dean’s termination essentially occurred following a series of disputes between Mr Dean and the owner of Pal-Tech, Mr Paul Lyon, about Mr Dean’s repeated failure to provide reasons for the amount of overtime he had allegedly worked during the course of a trip to Thursday Island and Horn Island (the Islands) to service gaming machines in those locations. Applicant’s evidence Mr Dean said he was scheduled to travel to the Islands on Thursday 13 May 2004 for 2 days and completed his timesheets for the week prior to his departure. Based upon his expected travelling time and working hours he recorded that he would work 1.5 hours overtime on each of 13 and 14 May 2004. However, on Friday 14 May 2004 he realised he was going to be working more hours than anticipated and rang his team leader in Cairns, Mr Laitinen, and asked him to change his timesheet to 4.5 hours overtime on 14 May 2004 instead of the 1.5 hours previously recorded. Mr Laitinen advised him that that would not be a problem. Mr Dean said the first thing he knew there might be a problem with his overtime was when Mr Laitinen telephoned him very late in the evening on Sunday 16 May 2004 in an intoxicated state. Mr Laitinen told him Mr Lyon had some problems about the amount of overtime claimed. Mr Dean said he told Mr Laitinen he had only booked 6 hours overtime and did not see what was wrong with that. In response, Mr Laitinen said that he was happy with that answer and would ring Mr Lyon the next day to further discuss the issue. The next thing Mr Dean heard was when Mr Lyon sent an email on 17 May 2004 in response to an email from Mr Laitinen which indicated he (Mr Laitinen) had spoken to Mr Dean “and he has verified his time to me and I have approved it”. In reply Mr Lyon wrote “that’s fine, I request a written report with details and times supporting the over time claim by Friday May 21st”. Mr Dean said he did not provide a written report at that stage because Mr Laitinen said it would be okay not to, he was the team leader and he would sort it out with Mr Lyon. Mr Dean said the next he knew about the issue was when it was raised at a meeting of staff employed by Pal-Tech in the Cairns office on 29 June 2004 which had been organised by Mr Wal Threlfall of the Electrical Trades Union (ETU) and Mr Lyon. This meeting had been called to talk about various industrial issues that had been festering for some time in the Cairns office. At the meeting Mr Lyon raised the issue of overtime again and said words to the effect “I need a report from you justifying the overtime you were paid”. Mr Dean said he replied that he had received permission to take the overtime from his supervisor and did not see why it was still an issue. -- 1 of 8 -- 2 Mr Dean also said that during the course of the meeting he attempted to discuss a number of issues but was told on one occasion by Mr Lyon to keep quiet and on another occasion by Mr Phillip Lye, Mr Lyon’s adviser, to shut up. Mr Dean said this made him very hesitant to say anything further about any other issues at the meeting. Mr Dean claimed that towards the end of the meeting it was agreed between everyone present that things that happened in the past would stay in the past. He took this to mean that previous issues, including the overtime issue, would be left in the past. Mr Dean also said that subsequent to his termination he obtained the original timesheet he had completed before he went to the Islands. The timesheet had been altered to claim 4.5 hours for both 13 and 14 May 2004. Mr Dean said he did not perform either of those alterations and did not know who had altered the timesheet. He also said he had been told that he had been paid 9 hours overtime over the 2 days (paragraph 82 of Exhibit 1) but did not know whether he was paid that amount or not (paragraph 83). However, in a correction made to his statement upon its tender, he indicated he became aware 3 weeks after being paid that he had been paid for 9 hours overtime (paragraph 84). Mr Dean went on to indicate (paragraph 85) “if I was paid for 9 hours overtime I should not have been and readily acknowledge that fact. My claim for overtime was for 6 hours overtime and not 9 hours.”. Mr Dean said he attended for work on 14 July 2004 and Mr Lyon and another person, who he did not know, approached him. Mr Lyon started talking to him and advised that his employment was being terminated. At this point, Mr Dean said he interrupted Mr Lyon and said words to the effect that he did not know who the other person was and did not want this happening in front of someone he did not know. Mr Dean said the other person then thrusted a wallet towards him and said “don’t worry about me, I’ve been watching you, I’m a PI (private investigator)”. Mr Lyon then told him he was being dismissed because of the overtime issue and because he had not provided a document (i.e. report) to him. Mr Lyon then handed him a letter of termination, dated 12 July 2004. Mr Dean said that Mr Lyon and the other person then followed him home to collect company equipment he had in his possession. He noted that they started following him home but halfway through the journey they disappeared. However, by the time he had arrived home and started to assemble the company’s property outside of his house they pulled up at his address. Mr Dean said he did not know how they knew where his house was and he asked them how they knew where he lived. Mr Dean said the person accompanying Mr Lyon “just smiled knowingly at me”. Mr Dean said he also noted there were two sets of headphones located on the dashboard of the vehicle. Mr Dean said the letter of termination stated he had been terminated for two reasons. Firstly, because he failed to provide a report in relation to the overtime claim and, secondly, in relation to alleged complaints made about him by customers of Pal-Tech. Respondent’s evidence On behalf of Pal-Tech it was conceded that the customer complaints referred to in the termination letter were not the true reason for Mr Dean’s termination. As a result, the company would not be producing any evidence, or making any submissions, in relation to that issue. Mr Lyon said Mr Dean frequently had disputes with himself and the other members of the Cairns team over work allocation, payments and work load. However, for present purposes, I will only deal with Mr Lyon’s evidence about the overtime issue. Mr Lyon said Pal-Tech regularly sent one of its technicians to the Islands, about every 3 months, to carry out preventative maintenance. If there was a need for someone to visit that location before the scheduled service – for example, if the machines were “down” – the technician would also take the opportunity to carry out preventative maintenance during their visit. The clock would then start for the next 3 months scheduled visit. Mr Lyon said there were 20 machines on Thursday Island and 6 machines on Horn Island which had to be serviced. In his experience it took about 10 minutes to complete the preventative maintenance work on any machine, resulting in about 260 minutes preventative maintenance work to be done over a 2 day period between the times the flight from Cairns arrived on the first day and the time the same flight departed Horn Island on the following day. Mr Lyon said that with one exception there had never been an occasion on which any of the technicians had to claim overtime on a routine preventative maintenance visit to the Islands, and Pal-Tech had been going to the Islands since 2002. The exception was an occasion in February 2004 when another technician, Mr Mark Harre, went to Horn Island on a Sunday because the machines at the hotel were bouncing on and off-line thus making it impossible for the hotel to trade. Mr Harre travelled to Horn Island during a scheduled 2 day break and was in constant contact with Mr Lyon while he was there, discussing such things as the parts Mr Harre needed to fix the fault, and other matters. Mr Lyon said he paid Mr Harre overtime for this visit because he worked on his days off. Further, he did not need a report from Mr Harre about the work he had done because they had been in constant contact during the course of Mr Harre’s trip. -- 2 of 8 -- 3 Mr Lyon said he was doing the pays on the afternoon of 14 May 2004 so that they would be ready to go into the staff members bank accounts on the following Wednesday. When doing Mr Dean’s pay he noticed that he had claimed for 4.5 hours overtime on each of the 2 days he was on the Islands. This was the first time overtime had ever been claimed on a preventative maintenance visit. Mr Lyon said this indicated that some significant problem had arisen on the Islands which necessitated the working of overtime. Mr Lyon said he was concerned to know exactly what happened. If there was a major difficulty with the gaming machines then Getronics or Unitab may contact him to find out what had occurred. He needed to be in a position to tell them about any machine faults and that is why technicians had to report any major faults to him. Mr Lyon said he telephoned Mr Laitinen in Cairns to find out if he knew anything about what had gone wrong on the Islands. Mr Laitinen responded that he had approved the overtime and that it was “okay”. Mr Lyon said he responded with words to the effect “that that was fine, he would pay it but he needed a report about what had gone wrong”. He then asked Mr Laitinen to get Mr Dean to send him a report about what had occurred. Mr Lyon said these conversations were essentially confirmed in emails on the following Monday morning (as above) and said that at that stage he still presumed that something had gone wrong on the Islands and, because of that, he needed a report in case Getronics or Unitab spoke to him about the problems. Mr Lyon said the payments for the week ending Friday 14 May 2004 went into the bank as scheduled in the middle of the following week. On the morning of 19 May 2004 he received an email from Mr Dean acknowledging that his overtime for the Islands trip was in his pay but complaining that his car allowance was not, thus resulting in a $200 shortfall. Mr Lyon said he acknowledged Mr Dean’s email and explained that the problem was with a new computer program which did not seem to wish to handle allowances. He told Mr Dean he would make arrangements to have the money immediately deposited into Mr Dean’s bank account that day. Mr Lyon said that by 21 May 2004 he had not received Mr Dean’s report on what had happened on the Islands. Despite Mr Dean’s failure to lodge the report he had, nonetheless, heard from other staff in the Cairns office – in particular Mr Harre and Mr Laitinen – that Mr Dean was very vocal about the issue and had been complaining about the fact that he had to do a report. Mr Lyon said Mr Harre, in particular, told him about this because Mr Dean was particularly angry that Mr Harre had been paid overtime while on Horn Island but had not been required to write a report. Mr Lyon said he was in Cairns on 21 May 2004 but did not think to ask Mr Dean for the report, notwithstanding they were working for a time at the same job site. On the following Tuesday (25 May 2004), Mr Lyon sent Mr Dean an email acknowledging his “great work” for some things that Mr Dean had done the previous week and some information he had supplied about shipping a faulty sign to Brisbane for repair. In response, Mr Dean sent an email in which he stated “I am getting sick of your foul emails” and complained about his general treatment, including frequent pay faults. Mr Lyon said he telephoned Mr Dean to say he was sorry that Mr Dean felt that way when he was only trying to give him credit. Mr Lyon said he went on to tell Mr Dean he had already explained the overtime issue to him and then asked him again for the report about the overtime on the Islands. He said that Mr Dean responded by asking why he had to do a report when Mr Harre did not. Mr Lyon said he told Mr Dean he knew what Mr Harre had been doing while he had been away but, in any event, Mr Harre had gone to Horn Island on a Sunday. Mr Lyon said the conversation with Mr Dean prompted him to telephone Mr Threlfall of the ETU about what had transpired as well as other problems he was having in the Cairns office. Mr Threlfall suggested that it might be best if everyone had a meeting “to clear the air”. Mr Lyon said he agreed, given that there were issues coming out of the certified agreement negotiated between Pal-Tech, the union and the employees earlier in the year. Mr Threlfall proposed setting an agenda which everyone would be able to contribute to. Arrangements were made to have a meeting in the Cairns office on 2 June 2004. Mr Lyon said that by this time he suspected that the reason Mr Dean would not give a report on his activities in the Islands was because he had not actually worked the overtime and had made a false claim for overtime payment. He said he could not understand why Mr Dean was so adamant that it was wrong for him to be asking him for the report. However, because of a combination of circumstances, the 2 June 2004 meeting was changed to 7 June 2004 and later, 29 June 2004. Mr Lyon said he decided not to attempt to follow Mr Dean up about the report during this period, notwithstanding that it was deferred on 2 occasions because he was becoming concerned about Mr Dean’s attitude towards the whole matter and felt that it would be best to deal with the issue during the proposed employee/union/company meeting. However, Mr Lyon said he received 2 calls from Mr Laitinen during this period, on 10 and 25 June 2004, respectively, during which Mr Laitinen informed him that Mr Dean was “still going on” about the overtime report. In the second of these conversations Mr Laitinen reportedly also told him he was “fearful of Steve Dean’s actions towards him and his family”, that Mr Dean “is a loose cannon and an accident waiting to happen” and that Mr Dean had indicated “that if he did not get me (Paul Lyon) over the overtime incident at Thursday Island, he was taking another tact at the end of the year to get me”. -- 3 of 8 -- 4 Mr Lyon said the meeting on 29 June 2004 was chaired by Mr Threlfall of the ETU who indicated at the outset to everyone present that the purpose of the meeting was to talk about concerns that both parties had about the enterprise bargaining agreement as well as other issues. There was then a lot of discussion about the various agenda items but most of the concern centred around communication issues and Mr Laitinen’s role as team leader in Cairns. Eventually, the issue about requiring reports was raised. Mr Lyon said he explained to the employees that he was ultimately responsible to Getronics and to Unitab if they contacted him to discuss some fault or problem at one of the gaming sites and he needed to be able to discuss any issues with them in an appropriate way. He told the staff that if something important happened at a particular location he needed a report from the technician so that he would not “look like a dickhead” to Getronics or Unitab. Mr Lyon said that this brought Mr Dean into the conversation and no matter how hard he tried to explain why he needed reports, and why he needed one from Mr Dean about the Islands trip, Mr Dean tried to cut in and talk over him. It eventually got to the point where he told Mr Dean to “shut the fuck up” and that he would have his turn in a minute. After Mr Dean objected, and Mr Threlfall intervened, Mr Lyon apologised for the remark. Mr Lyon said after he finished talking Mr Dean said some other things using a very child-like voice making out as if his request for a report was petty. Mr Lyon said that Mr Threlfall then told Mr Dean, in words to the effect, that what was being asked for was reasonable and that he should do it. After this, Mr Dean said that he had a report on his computer at home and would go home and email it that night to Mr Lyon. Mr Lyon said he believed he responded with words to the effect “fine – I’m happy, that’s all I’m asking for”. Mr Lyon said that at the end of the meeting Mr Threlfall asked each of the technicians if their concerns had been dealt with and if they were satisfied with the response. Mr Dean replied with words to the effect “yep, guess so”. Mr Lyon said that despite his answer Mr Dean’s body language indicated he was very angry and very dissatisfied. He remembered Mr Dean going out to his car after the meeting and driving off at a very high speed. Mr Lyon said that Mr Threlfall produced minutes of the meeting which were received on or about 1 July 2004. These minutes contained mention of Mr Dean’s concern about why he was being required to produce a report about his overtime on the Islands when Mr Harre had not been required to do one; Mr Lyon’s reasons for the different treatment and his reasons for requiring the report; Mr Threlfall’s comment that the employer’s request was reasonable, and would be seen that way by the Industrial Relations Commission; and that Mr Dean had a report on the work he carried out on the Islands on his home-computer and would be able to forward it to Mr Lyon that afternoon. Mr Threlfall’s minutes also showed that the “Agreed Outcome” of that agenda item was “S. Dean to provide a report to P. Lyon this afternoon, or as soon as possible, on the work he carried out on Thursday Island”. Mr Lyon said he did not receive the report from Mr Dean as promised and was now quite sure that Mr Dean had not completed the overtime he had claimed. Further, not only had Mr Dean been dishonest, he intended to refuse to comply with the direction he had been given (to complete the report). Mr Lyon said he decided to give Mr Dean another 2 weeks to comply with the direction but, in doing so, still did not believe he would receive the report. Without stating when he reached this decision, Mr Lyon indicated that he came to the conclusion he needed to be careful in the way he terminated Mr Dean’s employment. He said Mr Dean’s aggressive outbursts, constant badgering of the Cairns staff and abuse towards clients concerned him. He said he believed that if he allowed Mr Dean to remain in the workplace after telling him that his employment was terminated then Mr Dean may do damage to equipment and further abuse staff and clients. As a result, Mr Lyon discussed the issue of Mr Dean’s termination with Mr Lye, his industrial adviser. Mr Lyon said Mr Lye also indicated he was concerned about Mr Lyon’s personal safety when he told Mr Dean of his termination and suggested an independent witness. Mr Lyon said that as a result of this discussion he contacted a Mr Bass from First Strike Security who agreed to accompany him when Mr Dean was informed of his termination. Mr Lyon said he first met Mr Bass in the car park of the Cairns office of Pal-Tech around 8.00 a.m. on 14 July 2004. Mr Lyon said he introduced Mr Bass to Mr Dean stating where he was from. Mr Bass showed Mr Dean his wallet and told Mr Dean that in addition to security he also did private investigation work. Mr Lyon said he handed Mr Dean an envelope which contained his termination letter, a certificate of employment, a breakdown of his final pay and pay slip. He also informed Mr Dean of the reason for his dismissal, namely that he had not provided the report Mr Lyon had asked for about his overtime on the Islands. Mr Lyon also said that he and Mr Bass started to follow Mr Dean home to collect company goods but lost him in the traffic. They telephoned Mr Harre and Mr Laitinen, who were in Mareeba together, and received directions to Mr Dean’s house. They then proceeded to Mr Dean’s house. Mr Lyon categorically rejected the suggestion he had arranged any surveillance to be carried out in relation to Mr Dean. Other evidence -- 4 of 8 -- 5 Evidence was also given on behalf of Pal-Tech by Mr Phillip Lye, who gave evidence about the 29 June 2004 meeting and the discussion with Mr Lyon about the processes to be followed when effecting Mr Dean’s termination, and by Mr Harre, who also gave evidence about the 29 June 2004 meeting as well as his trip to the Islands which attracted overtime payments. Although a statement was lodged on behalf of Mr Laitinen, he was not called to give evidence. Consequently, I have disregarded its contents. Evidence was also given by Mr Dean and Mr Lyon about a dispute in mid-2003 concerning the amount of Mr Dean’s car allowance. Without recording the details about this matter – because it is unrelated to the decision to terminate – I nonetheless record that I have taken into account the primary witnesses’ answers, and their demeanour, when they were questioned about this issue, in reaching my ultimate conclusion on this application. Mr Lyon also mentioned other difficulties he had with Mr Dean during the period of employment. Primary in these events was a dispute about the potential, negative, impact on Mr Dean’s total wages as a result of Mr Lyon’s decision to engage an additional casual employee in the Cairns office. Mr Dean complained that the engagement of this additional employee would reduce the amount of on-call and call-out work, thereby affecting his pay packet. After a series of heated discussions, during which the matter was not resolved, Mr Dean filed a dispute in the Queensland Industrial Relations Commission. As a result of comments made during the course of this conference, steps were ultimately taken to put in place an enterprise bargaining agreement. This was achieved with the assistance of Mr Threlfall from the ETU, who represented the Cairns employees, and Mr Lye who had been engaged by Mr Lyon to negotiate the agreement on his behalf. The agreement was certified in April 2004. There was also a great deal of evidence about a variety of other matters. Because most of that material was not relevant to the termination, or the reasons for it, I have not dealt with it in this decision. Nonetheless, all of that material, as well as the respective advocates’ submissions, has been considered in arriving at my ultimate conclusions in this matter. My assessment of the witnesses I found each of Mr Lye and Mr Harre to be credible and honest witnesses. With the exception of Mr Lye’s evidence about when Mr Lyon, and he, were informed by Mr Threlfall that Mr Dean had resigned from the union (where I think Mr Lye was simply mistaken), I accept all of their evidence. I also found that Mr Lyon was, generally, a credible and honest witness. As was the case with Mr Lye, I believe that Mr Lyon was also mistaken in his recollection about when Mr Threlfall informed them of Mr Dean’s resignation from the union. With the exception of that element of his evidence, as well as his claim he spoke to Mr Dean on 25 May 2004 after he received the email from Mr Dean about the foul emails – evidence which I reject – I accept the balance of Mr Lyon’s evidence. On the other hand, I found Mr Dean’s evidence to be full of inconsistencies and improbabilities. His evidence also contained plain untruths. As a consequence, I have rejected the bulk of his evidence, especially where there is some inconsistency with the evidence given by other witnesses. Mr Dean was clearly not being truthful when he claimed he had been required to lease a vehicle as part of his employment contract. That was never such a requirement. Mr Lyon simply proposed that Mr Dean would be paid a weekly allowance for the use of his vehicle because Pal-Tech, at that stage, was not in the position to purchase a vehicle for Mr Dean. In my view, the decision to lease the vehicle was taken by Mr Dean alone, probably because he thought there were tax and other advantages. Mr Dean was also not being truthful when he claimed in his first statement that he did not know whether he had been paid any overtime for his trip to the Islands on 13 and 14 May 2004. The various emails admitted into evidence, most particularly that from Mr Dean to Mr Lyon of 19 May 2004, disclose that Mr Dean was acutely aware of what was going into his pay packet on a week-to-week basis and that he was not “backward in coming forwards” if he thought he had been underpaid. Indeed, his email of 19 May 2004 acknowledges receipt of the overtime payment (of 9 hours) in his pay for the week ending 14 May 2004 but queries the non-payment of his car allowance for that week. Further, my assessment of Mr Dean leads me to conclude he knew, right from 19 May 2004, that he had been paid 9 hours overtime for his trip to the Islands. He was thus being dishonest when he claimed, later, that he did not know whether he had been paid any overtime and then, much later, claimed that he thought he had been paid 6 hours overtime rather than 9 hours overtime. Further, I categorically reject Mr Dean’s version of the events of the 29 June 2004 meeting. Each of Mr Lyon, Mr Lye and Mr Harre was very clear that one outcome of the meeting was that Mr Dean was to forward his supposed already- prepared report on his trip to the Islands to Mr Lyon that same afternoon. Similarly, that was also the view of Mr Threlfall, whose minutes of the meeting were appended to Mr Lyon’s witness statement. -- 5 of 8 -- 6 In addition, I reject Mr Dean’s evidence about the hours he worked on 13 May 2004, most particularly his claim he performed work updating the registers after he checked into the hotel that afternoon. His evidence on that point was gratuitous and was volunteered in re-examination solely because he knew he was in trouble and needed, somehow, to attempt to justify the hours claimed. He clearly worked no overtime that day. Taking into account the provision of Pal-Tech’s certified agreement with its employees and the ETU, it is clear that whilst Mr Dean might have worked some overtime on Friday 14 May 2004, he did not work 6 hours’ overtime over the 2 days, let alone the 9 hours he was clearly paid for. My assessment of all of the evidence, most particularly that of Mr Dean, was that Mr Dean:  knew that he had not worked 6 hours’ overtime as he had claimed and as he had alleged his timesheets would have shown;  knew as early as 19 May 2004 that he had been paid 9 hours’ overtime in circumstance where, if his evidence is to be believed, he only claimed 6 hours;  failed to disclose that fact to Mr Lyon or Mr Laitinen;  found numerous excuses to avoid giving Mr Lyon a report on the reason for the overtime, as Mr Lyon reasonably requested;  failed to carry out his promise, given at the 29 June 2004 meeting, that he would send Mr Lyon the report he already (allegedly) had on his computer at home; and  failed to provide that report on the flimsy excuse that everyone had agreed at the end of the 29 June 2004 meeting that “everything that’s happened in the past will remain in the past”. All in all, Mr Dean knew that he had been overpaid, knew that Mr Lyon required a report as to why the overtime had been necessary, knew (from Mr Threlfall’s input) that Mr Lyon’s request was a reasonable one but, nonetheless, continued to do everything he could to avoid lodging the report. His reasons for doing this were quite simple. He knew that he had not worked the overtime that he had been paid for (or the amount of overtime he alleged he claimed) and knew that he would be “caught out” if he finally had to provide a report to Mr Lyon. In my view, Mr Dean was simply testing how far Mr Lyon was prepared to take the matter. That was disclosed on 14 July 2004 when his services were terminated. Was the termination harsh, unjust or unreasonable? It is clear from my findings, immediately above, that Mr Dean knew that he had been overpaid, but did not disclose that fact, and knew that he was required to provide a report but persistently found reasons not to. It is also clear that Mr Dean’s actions were quite deliberate and calculated. In my view, Mr Dean decided that his best means of attempting to defend his position was to claim innocence and to attack Mr Lyon as being unreasonable. Mr Dean even attempted to portray that he was the victim by adding an (hand written) agenda item (PAL11) for the 29 June 2004 meeting in which he alleged he still had not been paid overtime for his trip to the Islands. The question which arises, then, is whether, in all of the circumstances, Mr Dean’s termination on 14 July 2004 for failure to provide the report was harsh, unjust or unreasonable. In the ultimate, after considering the competing issues and submissions of the respective advocates most carefully, I have decided Mr Dean’s termination was harsh, unjust or unreasonable. I have arrived at this conclusion because of the way that Mr Lyon went about the whole process after 29 June 2004. While I have accepted that it was an agreed outcome of the 29 June 2004 meeting that Mr Dean was to provide a report on his activities on the trip to the Islands on 13 and 14 May 2004, the simple fact remains that Mr Lyon did nothing about following that report up – when numerous opportunities would have presented themselves – before he took the decision to terminate Mr Dean’s employment. In my considered view, Mr Lyon had the obligation to follow up Mr Dean, at least once, after the 29 June 2004 meeting about Mr Dean’s failure to provide the report as promised. Mr Lyon also had an obligation to inform Mr Dean that no more excuses would be tolerated for his failure to produce the report and that continued failure to produce it could, or would, lead to Mr Dean’s termination. Mr Lyon could not simply sit by and let the clock run towards the date on which he would ultimately terminate Mr Dean’s employment without, first, forewarning Mr Dean of that possibility. In this respect, I think that Mr Lyon had simply had enough of arguing about this and other matters with Mr Dean and was simply looking for some excuse to get rid of him. Mr Lyon thought he had been handed a gift-horse, in the form of Mr Dean’s failure to abide by his agreement following the 29 June 2004 meeting, and decided to act decisively. However, Mr Lyon’s failure to inform Mr Dean of the possibility that he might be terminated because of continued failure to provide the report makes the ultimate decision to terminate unfair. -- 6 of 8 -- 7 I have arrived at this conclusion notwithstanding the very strong submissions of Mr King, who represented Pal-Tech, that Mr Lyon was entitled to terminate Mr Dean, without first telling him that his employment was at risk, because:  Mr Dean knew of the importance of the report;  Mr Dean had ample opportunity to provide the report, or at least raise the fact he had been overpaid;  Mr Lyon was entitled to act decisively when Mr Lyon decided Mr Dean was dishonest; and  Mr Dean’s proven dishonesty justifies summary termination, notwithstanding Pal-Tech paid him two week’s payment in lieu of notice. All that having been said, I cannot ignore the fact that if Mr Dean had submitted his report it would have become very evident that he had not worked the amount of overtime he alleged he claimed (i.e. 6 hours) or the amount he was actually paid, being 9 hours. In those circumstances his termination for dishonest conduct was inevitable. Remedy It is clear from the evidence that the relationship between Mr Lyon and Mr Dean has absolutely broken down and that reinstatement is impracticable. I thus turn to consider whether an award of compensation is appropriate and, if so, what the amount should be. Mr Dean said his average weekly rate of pay while working for Pal-Tech was $915 per week net including his car allowance of $14,999.99 (gross) per year. He said he had mitigated his loss by finding alternative employment within about 2 weeks of his termination. However, this was at an amount of $774 per week. (I assume net because of Mr Dean’s way of describing matters). This is a difference of $141 per week (not $171 per week as set out in the application). In total, Mr Dean sought compensation in the amount of $67,961 (including general damages of $10,000, past economic loss of $7,302, interest on that loss, future economic loss for 5 years at $171 per week, future lost superannuation and special damages – including lease payments of $12,431 in respect of the vehicle Mr Dean claimed he was required to lease) but reduced, by virtue of the provisions of s. 79(2)(a) of the Industrial Relations Act 1999, to $23,790. I am not disposed to grant any aspect of Mr Dean’s claim in respect of general damages or special damages. In respect of the latter point, the decision to lease a vehicle was clearly taken by Mr Dean alone, and Pal-Tech has no liability in that regard. It simply offered to pay Mr Dean, initially, an annual allowance, later changing that arrangement, after Mr Dean’s objection in mid-2003, to a per kilometre allowance based upon the actual distance travelled. In respect of the former claim, for $10,000 in general damages, Mr Dean failed to substantiate any of the claims he made in support of that claim – including such matters as being “shadowed” by a private investigator or about spy-ware being placed on to his computer. It seemed to me that Mr Dean was simply paranoid. Any issues he had about his perceived treatment were a figment of his imagination, and nothing more. In the end result, notwithstanding my findings that Mr Dean was unfairly terminated, I have decided not to award him any compensation. Mr Dean was paid 2 weeks’ wages in lieu of notice. He also found reasonably comparable employment within approximately that same period. Whilst he argues that there is a difference in weekly wages of approximately $141 net, that difference needs to be considered in light of the nature of his employment at Pal-Tech and the extensive nature of the on-call work involved. In that respect, the evidence was that Mr Dean was on-call for approximately one week in 3 and he was also required, as part of his on-call and his normal duties, to travel extensively. His wage slip (PAL8) – read in conjunction with clause 17 of the company’s certified agreement (Exhibit 6) – shows he was paid a call- out/availability/travel allowance of over $160 per week as compensation for those types of issues, in addition to which he was paid a car allowance of $201.92 per week. While Mr Dean regards that latter payment as “income” it clearly was not. It was simply a reimbursement of expenses based upon the distance travelled. More importantly, however, is the fact that, despite the procedural flaws, the evidence clearly disclosed that Mr Dean was a dishonest employee who sought to profit from his overpayment of overtime and consistently failed to comply with a reasonable request from Mr Lyon that he provide a report about his activities on the Islands. Mr Dean’s calculated failure to disclose the overpayment and his persistent failure to provide Mr Lyon with the report he reasonably required simply meant that Mr Dean was living on borrowed time. Ultimately, Mr Dean was going to be caught out. This would have happened as soon as (more appropriately if) he lodged his report. In my view, Mr Dean’s behaviour should not be rewarded by an order for payment of compensation simply because the employer effected his termination in a flawed manner. The termination was justified but was carried out in a clumsy manner. It might have been a different story if Mr Dean had been terminated without notice, but that was not the case. -- 7 of 8 -- 8 For the foregoing reasons, I find that Mr Dean was unfairly terminated by Pal-Tech on 14 July 2004, that reinstatement is impracticable but there be no order as to any amount of compensation. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2005 7, 8 March Appearances: Mr A. Tayler, of Shine Roche McGowan, for the Applicant. Mr R. King, of Milner Lawyers, for the Respondent. Released: 1 April 2005 Government Printer, Queensland The State of Queensland 2005. -- 8 of 8 --