Daly v A-Mart All Sports Pty Ltd [2000] QIRC 132 (2001) 166 QGIG 52

52 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 January, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1997 – s. 218 – application for reinstatement Mark Anthony Daly AND A-Mart All Sports Pty Ltd (No. B967 of 1999) COMMISSIONER EDWARDS 20 December 2000 Application for Reinstatement – Termination of Employment – Dismissal – Evidence – Company Concerns – Training – Stock – Communication – Rosters – Deliveries – Balancing the Till – Slush Funds – Company Policy – Procedural Fairness – Application Refused. DECISION The applicant was employed by A–Mart All Sports Pty Ltd (the Company) from 6 May 1997 until 28 June 1999. During his employment he worked as an Assistant Manager and relieving Manager and became the manager of a new store at Morayfield which opened in January 1998. After approximately one year at Morayfield he was chosen to manage a new store at Mackay. In relation to training, the Commission accepts that he completed his Level 2 Management training program between 25 March 1998 and 17 April 1998 and his level 3 on 19 August 1998. After the opening of the Mackay store, concerns were expressed to the General Manager, Wayne Rowlands about a range of issues such as:– • training of staff and the management team; • stock; • communication; • staffing at a better wage percentage; and • balancing the till. The Commission accepts that a special trip to Mackay was not made by the General Manager and the Product Manager, Kelvin Hutchinson but the issues were listed for the routine visit. Such a visit was undertaken on 27 June 1999. Mr Daly was on a pre-arranged day off on 27 and was present on 28 June 1999. -- 1 of 3 -- 12 January, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 53 A number of issues were discussed but the one of significance for the purposes of this matter was that relating to adjustments to daily banking and record “refund not rung up” entries. On 28 June Mr Rowlands questioned Mr Daly about the use of slush funds and “so called refunds not rung up records”. However, Mr Daly responded by saying, “I can’t explain it” or “I do not know the answer”. As a result of the interview Mr Rowlands discussed the situation with his colleague Mr Kel Hutchinson and it was decided to ring Mr Bruce Batchelor, a Director of the Company. The result of that call was outlined by Mr Rowlands in his affidavit wherein he stated:– “We both felt that it was gross misconduct, a wilful breach of the company financial policy, which for anybody in control of our funds, we could not condone. I told Bruce Batchelor that I felt we had no option but to ask Mark to resign and if he did not resign I would need to terminate his employment. Bruce agreed.”. Mr Rowlands then returned to Mr Daly and advised him as follows:– “When we were in the office I told Mark the situation was serious, regarding the refund not rung up comments – which he could not respond to – and the adjustments to the banking. I told Mark that his responses to my questions about the banking adjustments were not satisfactory and the company considered the breach of company policy gross negligence. (I used the words gross negligence but I meant gross misconduct). I told Mark he had admitted to Cassie that he could not lie to me. I then went on to tell Mark that I was going to ask for his resignation but that if he did not resign I was going to have to terminate his employment.”. During the hearing Mr Rowlands was unable to assist the Commission by advising clearly or providing:– • The financial policy to which he was referring in his affidavit; or • Financial policy dealing with over bank/under bank situation. The Commission is of the view that Mr Rowlands readily used the words “gross misconduct” in a loose manner. During the hearing Mr Rowlands reaffirmed that the Company had a very clear policy that “slush funds” should not be kept. At the same time he indicated that a slush fund of under $10.00 would be acceptable and not regarded by him as inappropriate. As such the evidence of Mr Rowlands was inconsistent as he outlined on a number of occasions that the financial policy is “black and white” but in the same paragraph of his affidavit he accepted that there is ability to be flexible with a tolerance of minor nature. The Commission was provided with “A-Mart All Sports Policy Manual” – Exhibit 8 and Procedure Manual – Exhibit 9. Mr Rowlands made reference to financial policy, slush fund policy and termination policy. Even though the Board of Directors of the Company had spent considerable funds on the preparation of the policy documents, the person entrusted to travel to Mackay to implement those policies had minimal knowledge of them and was of little assistance to the Commission when giving evidence. The Commission accepts the submission of the applicant that Mr Rowlands was hesitant, evasive, supercilious, defensive, and equivocal. Furthermore, I accept that his evidence was inconsistent, contradictory and unnecessarily lengthy. The Commission does not accept that the case for the respondent was feeble. The case for the respondent was strong but Mr Rowlands did not assist the Company by his evidence. However, his evidence in regard to procedure was to a level that the Commission accepted the interview process extended to Mr Daly. In considering the situation at the Mackay store the Commission refers to the affidavit of Casandra Lee Goode (Exhibit 4) in which she states:– “During the previous couple of months Karen Norquay had raised the banking procedures with me. It started about April. Karen was very concerned that the banking was under and she would tell Mark. He would go and come back with some money and put it on the desk and tell her to fix the banking up. Karen asked me where he got the money from and I said I didn’t know. To the best of my recollection I think Karen started raising matters with me after the memo from Head Office on 16 April 1999, because before that time any unders or overs were taken care of out of the slush fund. I did not know at that time that a slush fund was against A–Mart policy. In June I went to Brisbane and did some management training in a number of stores there. I found those stores to operate very differently from the way the store operated in Mackay. I was particularly impressed that the procedures in the Brisbane stores were much tighter. This really struck me because I was used to a well-regulated operational environment at Hungry Jacks and the Brisbane stores were more like what I was used to. Later Danny Mayfield and I went through and checked the overs and unders. I am aware that the refunds rung up were not only less than $10.00 but were for much more than that in some cases. I had also found that I was doing the lay–bys incorrectly after Mark left. Because of the way I was doing them the till should have been over on that day when I processed a lay–by. It never was. There were also missing register receipts. Some days there were no register receipts to support what had happened on that day’s trading. When I was in Brisbane doing my training Karen Norquay told me that Mark Daly had accused her of stealing money. Money had gone missing a couple of times over the past few months and Karen felt very strongly that Mark was insinuating that she had stolen it.”. Christine Marie Caldwell was the Training and Development Manager involved with Mr Daly from his commencement of employment. She provided a detailed outline of the training he had undertaken together with an outline of the responsibilities placed on managers for the banking of money. The experience, training and skills acquired by Mr Daly during his period with the Company should have been to a level, which ensured that he as Store Manager maintained the books of account at a satisfactory level. Whether the Company policy was written or verbal he had a responsibility to ensure that refunds were recorded correctly. Furthermore, if uncertainty arose he was aware senior officers of the Company were available to assist. The Commission heard evidence from Ms Caldwell in regard to training. As such if there was a deficiency the Commission would expect a Manager to seek clarification. As an experienced Manager, Mr Daly had a responsibility to show initiative and inform his supervisor if he was experiencing difficulty in managing the books of account to a level which satisfied audit requirements. On consideration of all the evidence, exhibits and submissions, the Commission is satisfied that in terms of the Workplace Relations Act 1997 the termination was justified. There will be no order for costs. The application is refused. -- 2 of 3 -- 54 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 January, 2001 Order accordingly. K.L. EDWARDS, Commissioner Appearances:– Mr J. O’Donnell of James O’Donnell and Associates on behalf of Mr M.A. Daly. Released: 20 December 2000 Ms K. Prior of Prior and Associates on behalf of A-Mart All Sports Pty Ltd. -- 3 of 3 --