Brabant v Colonial Auction Supplies [2002] QIRC 65 (2002) 170 QGIG 28

28 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 May, 2002 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Peter Brabant AND Colonial Auction Supplies (No. B2279 of 2001) COMMISSIONER BECHLY 3 May 2002 DECISION Mr Peter Brabant was employed as a sales/store person by AR Lang Enterprises Pty Ltd t/a Colonial Auction Supplies for approximately 2 years until his employment came to an end on 6 December 2001. The circumstances giving rise to the termination of employment concern an event which occurred on 5 December 2001 when an item of furniture, a three seater outdoor bench, was transferred from the possession of the respondent to the possession of a customer. The transfer was effected by Mr Brabant. This matter came to light on 6 December when the Office Manager, Ms Cindy Lang, discovered that pages for two invoices had been removed from an invoice book. Enquiries as to the reason for the missing invoices resulted in another employee, Mr Brenton Kermond, informing the Office Manager that, on the previous day, the applicant had informed him that he had given a three seater bench to a customer but not to say anything about it to “the boys”. Mr Kermond raised this matter on the off chance that it may be related to the missing invoices. This was put to the applicant but was denied by him. That is, both the conversation with Mr Kermond and the fact that the furniture was given away were denied. -- 1 of 2 -- 17 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 Enquiries were then pursued and, with some difficulty, the customer was identified and contacted by the Office Manager. The difficulty resulted from the manner in which the applicant completed paperwork associated with payment for a table paid for by the customer on 5 December 2001. When questioned about the transaction the customer acknowledged purchase of a table, acknowledged possession of the three seater bench, but advised the Office Manager that she should talk to Mr Brabant as to how it came into his possession. Mr Brabant was confronted with this information and queried as to its authenticity but made no response. There were then several phone conversations with the customer who questioned at one stage whether, if he paid for the bench, the matter would be dropped. Mr Brabant was advised that the matter would have to be reported to the police. This action was taken by the respondent on 6 December. Mr Brabant left the premises and returned a short time later after making a phone call and asked Mr A.R. Lang, the sole director and shareholder of the respondent, whether he still had a job. Mr Lang informed Mr Brabant that his employment was terminated for dishonesty. In his defence at the hearing Mr Brabant stated that he had only lent the bench to the customer because chairs previously ordered had not arrived at the store. Some ten chairs had been ordered but were not available on 5 December. Mr Brabant states that he had been instructed to fix the problem of the chairs not being available at the same time as the table by someone, who he could not name, and lending the bench was the way he had fixed the matter. The customer was not called to verify this material nor was any action taken to identify who Mr Brabant may have been instructed by to “fix the problem”, nor to whom he reported the outcome to as claimed by him. The customer’s chairs eventually arrived. They were paid for and delivered. The customer retains possession of the bench for which he sought a “no charge” invoice at time of payment for the chairs, no doubt to establish legal possession. Mr Brabant was questioned about the matter, informed as to the information available to the respondent and given an opportunity to respond. He initially denied giving the bench to the customer and did not propose as a defence the loan of the bench to the customer until much later. Mr Brabant, as a sales/store person, is in a position of trust. The business sells a variety of second hand and new building material and furniture. The stock and sales controls seem, from the material available, to be quite basic and relied on the applicant to accurately record, on a simple triple copy invoice, goods sold and cash, cheque or credit card payments made. The applicant also delivered goods sold. The applicant did not present well when providing evidence. His recollections were vague, conflicting at times and not creditable. I am satisfied on the evidence that the applicant, without any authority, gave the customer the bench, and that the later claim as to lending it to the customer is a fabrication. His actions constituted misconduct sufficient to warrant dismissal. I am satisfied that the action taken to terminate his employment was not harsh, unreasonable or unjust. The application is rejected. R.E. BECHLY, Commissioner. Appearances:– Mr. J. Shepley, of Counsel, for the applicant. Released: 07 May 2002 Mr. A. Horneman-Wren, of Counsel, for the respondent. -- 2 of 2 --