Cunado v Stones Corner Motors Pty Ltd trading as Keema Hyundai [1998] QIRC 220 (1998) 158 QGIG 95

94 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 May, 1998 29 May, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 95 ###lt#######ltlt#####lt####lt######################lt########### QUE£NSLA:--D INDUSTRIAL RELATIONS COMMISSION Workplace Relario11.1· ACI 1997 ,. '.'18 appli<;ation for rein�taiemenl Simon Cm1ado AND Stones C<•rncr Motors Pty Ltd trnding a.s Keema Hyundai rNo. B/378 of 1997/ COMMISSIONER BLOOMFIELD 19May 1998 Rcin,llltcmcnt - Summary Dismissal - Termination of Employment - Scr,•;._•e Manager -· 13ogu, credit note, raised in Service Department 10 value of aln10si 560.000 - Suspension while mauer investigated - Allegations of refusal 10 co-operate in investigation -Applicant terminated for alleged gross dereliction of du1y for failing IO know about raising of credit notes - No ;,ilcg,uion of fraud against Applicant - Arbitrated Matte.r - No ,ysicm in plai;c requiring Se rvice Manager to che<:k credit notes - Termination not ..,ound. dcfonsihle or well reasoned" -No grounds tn suppor t 1e1111ination for mi>r ,mduct {gross dereliction of duty) .. Tem1ination found 10 Ix harsh, unjtbl or unrca'lllWblc -Compensation of $16.400 awarded. DECISION Backgruund Thi, i, an appli,ation hy Mr Simon Cunado seeking rci11,1.11e111,;111 10 hi, fonn�r p<"iti,,n ,is Scrvic·c Manag�r with Stones Corner Mowrs Pty Ltd t1�1Liing <.L, Kecma H)undai at Mount Gravau. Mr Cunado w,rnnenccd employment with the Kteem:1 Automoti,·e Group of ,ompanies as an ,,pprcllli,c motor me,hani, in De,embcr 1973. He. wa� promoted through \ ariou� rok, in the.� company �md bC(..'a.me its Service Manager somelimc in 1989, a po,irion which he held until his summary termination on 4 July 1997, He "'"' terminated on that date hy Mr Warren Crompton. the Dealer Principal. following a short discussio n with Mr Crom1)1on and the Managing Dircetor of the Kecma Aummorivc Group. Mr Henk Kahel, by being handed "loner of termination. ·n1e kucr wa, m the following terms:- 011 Tlumday IY1h ./111tt' /997. in dismssing !o clie111 ·.1·; leHl'f of cwnf)lai,11 af' I ./1/, J1111e ll'irh rou, I queried u·hy he ,rould COll1f)/ui11 of' 11,e 10111/ lahou r c-lwr3e of $/296./10, ••rhe11 1he r,•cord., ;J,,,,,·,,d 1/wr a cash .\tile credir for $217.50 had h1·en miset! {or him 011 301h May /997. the day aj1er 1he orixinal inroiC'e. You re.,ponde d hy saying 1/u11 you wert' unt.nnire u crfdi1 had ht'e11 rai.,ed. H·hiclt ,,.,L\· stranxe xiven 1h01 you h·en· ih,· f)er"111 who hod ,·01111nletl ((he client · s1 invoice 1he previous day. .l4y ml! rn uhe di('lt/1 co11firm£'d thm he h"d NOT ,·,•ceil'(,d a credit. >1ott suh.'H'(Jttently made 110 uuemp1 to provide an exp/cmatifmJi,r the <·redit. (),, FriJm· ./1111<· 20rh 1997, ,·011 u·,·ri· shmrn cwh sale credir 1w1e C./5788 $/59.95 awl mke;I r " explain 1t'l,_1· it 1ra., raised. No expfunuti<m h·as forthcoming and you could not determi ne irhi<:h Slaff memher raised 1he credit. The followinx week. while you were on c11111ual leave. the credi1 note fill' was exami11ed in dewil, and i1 wa.1 found 1ha1 s11spec11,d J,-mufti.lt'lll cash .rale credir 11ores fwd been raised ,m a rl'gular hmisfor many years. Upon my r.•quesl, _rou auendecl a meeting Oil Sunday 29th June /997 at M1 Grava// wilh m;vse/f & Henk Kabel, mu/ you. were asked ij'you ><·ere aware c1fthe.fi1c1 that 1hese credits were bein[I raised. You r reply in 1/,e nega1ive /(lcked credibilil_\', fiiven 1he 1111mher ofoccwions wm were calle d 11po11 by Shelley to assi.w i11 the inves1ig01ion of rnsh discrepa11cie.1·, such investigations llecessiullin.� thl' f)erusal of all documellls sholl'n Oil 1he doil_, cu.\h sales report. rour disinreres1 in ensurin!{ 1/wr all credi1.1· raised were ,u-,:-eprahle to K,•ema is seen as a gross dereliction 1fduty in your role as Sen,fr·e Mcmager. and unaccepwhle hehaviour fi,r a perso n ho/din/; a numa[1emen1 posirion. The cosr 10 Keema is sig11ifict1111. and 1he mmrer has hl:'en referred w ,he CIB .frir criminal inve.t:tigation. The gross derelictilm 1!{ ,hay ourlined abm·e, wi;e1her ll'ith rile indde1ll '"·here .wu, Juul " towbar fiued to your own 11ehicle but coded 1/te invoice ro compa11,1 expeme, indicate w us rlrw our /ru.,·1 in you as a Service Mwwger has been ill,fuimdt,d. lVe lu1 ve waited with considerahle patience for you to come _fi,nmrd 1rith inf;1mw1io11 which could show tluu you have nm heen negligent in c:anyinf{ out your dutie s. hut ,w assi.vum(·e has heen f"r1hr omi11;:, and as a cm1sequ£•11ce 1he dec-isio11 has hern mwJ;, w 1ermillatt' ymtr emp/uyme111jimhwirh. Yo11rsfai1hj11/ly Warren C. Crompton Geno'ld Mt.fllll!/er..._ It should be recorded at thi, point that Mr Cunado was on annual leave f rom late on the afternoon of Friday 20 June 1997 until his return 10 Brisb,,nc during the day on Sunday 29 June 1997. His aue.ndat1t·c at the meeting on Sunday 29 June, mentioned in the tennination letter. was at 7.J0 p.111. at the company·, premi,es at Mount Grava11. Mr Cunado was su�pendcd from duty during the eourse of that meeting and was asked to return hi, keys to Mr Crompton on Monday 30 June 1997. a re4ue>1 whid1 he eomplied with. He was called into the offo;e at approximately 3.00 p.m. nn rriday 4 July 1997 for a ,,ccontl meeting with Mr Crompton and Mr Kalx:I and i1 \Va., durin& the second meeting that he wu:-. �wnn1�u·ily dismissed. 11 shoul<I also he rec:nrded that during Mr Cunado's pcriti<l of annual leave Mr CrompLOn had armngcd for the eredit nt>tc file to be examined in detail. That examination revealed tliat there were approximately :'\00 sus(l<,cl credit notes which had bci;:n issued since January 1992 for a total amount of slightly lt:,s tha n $60,000. Cenain customer,., 10 whom credit notes had allegedly bi:en i,,ucd. were telephoned during that week and providcd confirmation that they had neither requested nor received a credit for work pe1fom1cd. Apparemly ,orne additional investigations were carried out during the period while Mr Cunado was susix:nded induding an analysis of the. leave rttord, of ,1aff over the:: preceding eighteen months. Thi, showed that there was a ··pe11'ec1 corrcl:n ion" between his absenn:,, and the non-issue of bo11:u, <:rcdit notes. No other staff member had any ,imilar corrdation becau�e crcdit notes had been raised on day, on which they had lx.--cn abse nt. This infonnation wa, not disclosed 10 Mr Cunado at any time prior 10 his termination but became part of the "scenario" which faced Mr Crompton and Mr Kobel when they took the deci,ion lO terminate Mr Cunado's services on 4 July. Evidence There was yuitc a deal of witness evidence presented during the course nf the cas�. However. much of it doc, not need m be referred to becau,e, a, it tumed out, the case involves a consideration of the vciy narrow issue of whctl1er Mr Cunado's apparent "disintere>t in ensuring that all m.,cJits raised were a�ceptable 10 Kccma" meant that he was guilty of "gross dereliction of duty.. in his role as a Service Manager and whether such alleged "uisintcrcst" constituted "unacceptable behaviour f,>r a person holding a management position". -- 1 of 4 -- 96 Q UEENSLAND GOVERNMENT I NDUSTRIAL GAZETTE 29 May, 1 998 In indicating that the case turns on those narrow points I need to record that during the course of the case both Mr Crompton and Mr Kabel made it abundantly clear to me that they had not, and were not. making any accusation that Mr C unado was the person v. ho embezzled the amounts missing by ( apparently) issuing bogus credit notes and taking an equi,·alent amount of cash from the Service Department's daily takings. They said that such matters were in the hands of the Police and it was up to the Police to detennine whether criminal charges should be laid against any person, including Mr Cunado. They each made it clear that Mr C unado wa, terminated for the reason(-;) ,et out in the letter of termination. According!) , whilst I indicate that I have considered all of the evidence presented by all of the witnesse.s I have nonetheless found that the issues involved can be deterrnined almost exclusively by reference to the evidence of Mr Cunado, Mr Crompton and Mr Kabel. I say "almo,t exclusively" hecause it has heen necessary for me to al.so consider the evidence of other " itnesses insofar as their evidence related to the know ledge which Mr Cunado may have had about the numhcr of credit notes being issued from within the Service Department. I n that regard I record that it is my finding that there was no specific nor general system in place which would have enahled. nor indeed required, Mr Cunado to sec each credit note that v. as raised. If Mr Cunado saw a credit note it would have been because: ( I ) he raised it himself: or ( 2 J it was in the pile of im oices and credit notes v. hich were placed into the tray next to the cash drawer and he happened to see it: or n J if he ( amongst other employee:-. ) a:-.-;i:-.tcd M:--. Beaumont to reconcile any "under'.'-." or '\lv�r:--.·· after she had initially failed to balance the daily takings. Further. I am ,atisfied on the evidence of each the three primary witnesses that it was not Mr Cunado's direct nor specific re,ponsibilit) -- in that the company had no :-.y :--.tcrn'-1 in place to en:-.urc that it wa:-. done to either authorise any credit note which was issued nor to he aware of the numher of credit notes which were being issued within the Service Depa11ment. I have made this finding not\\ ithstanding the evidence of Mr Crompton and Mr Kahel that they would have "expected" Mr Cunado to be aware of the numhcr of credit notes heing i\:-.ucd if he was managing hi:-. Dcrartment properly I sav more about this "expectation" helow. In my , icw. that fact that the company had no ,y,tems in place to ensure that credit note, \\ere authori-;cd. nor any reporting :--.y'>tcrn in place to -;ho\\ the numher or amount of credit note:-,, hcin:; is'.-.ucd, -.,uggc:--.h that it rca!I;- had no concern'.-. ahout <..,uch i:-.-;uc..,. and therefore no :--.y:-.tem:-. in place to monitor what \\as harpcn ing, until a point ,omc time after Mr Cunado', termination. The daily sales analvsis report ( hmn I 5 I ) only recorded the total net labour sale'.-. figure:-.. and the numhcr of tran-..,actioni..,. hut did not rc\'eal the number of credit note i.., ji..,\ucd nor the amounth) i1n oh ed. Approachin;2 the matter on the basis of the above findings I n,m set out the relevant evidence given by Mr Crompton. Mr Kabel and ,\1,- Cunado. Mr Crompton ;2a, e evidence that he had commenced with Kcema '" the Group Account,mt in earlv 1 98') and took on the additional role of Dealer Principal at Mount Gravatt in March 1 990. Ret\\een approximately 1 99 I and 1 997 there \\as more than a fi, e-fold increase in vehicle, ,ale,. '\1r Crompton told me that thi.s le, cl of increa.se meant that he could only cope with the combined duties of Dealer Principal and Group Accountant hy ddc[!ating more and more rc\prnv,ihilitic\ to hranch departmental manager-; such as Mr Cunado. It folltm s that Mr Cunado's workload must also have increased in that same period essential I) for the reason, described , i i . incrca'.--ed \'olumc of ,-;en ice work plus extra dckp:atcd dutic-;. Mr Crompton told me that when he raised the question of the credit of '.'>2 1 7.50 l ahm e l with '.\1r Cunado on Thursda, 1 9 J une 1 997 he "was ver) ,urpri,ed" " hen '.\1r Cunado said that he knew nothing about the credit. He told Ille that he "knew that Simon had been dealing with the customer and it \ccmcd a :"lurpri:..ing answer to get from him that he k.nc\\ nothing ahout the credit... \1r Crompton indicated to '.\1r Cunado that he would look into it fu11hcr. H i \ in\ C\tigation� rc,·ealcd that the original in\'oicc had heen paid in full. This arou,ed his suspicions ahout the credit note and he a.sked to ,ee the credit note file. The copy of the credit note showed that it was "credit on on�rcharg:e" and carried no other explanatitm:"I nor signature�. When asked h) \'lr Kowalski v.hat i m oh cmcnt he w rlllld have expected of Mr Cunado in trying to find out \\hat the credit note \\a, about Mr Cro!llpton responded by ,a) ing " I w mild ha, e expected that he \\ ould ha, e been as ,urpri,ed as me to sec that a credit had hcen passed against that job when in fact he had authorised no credit and that in fact if there was a credit going to come from anyone. it would have come from the person who had handled the customer when he was being presented with the bill in the first place.". On the following day , Frida) 20 J une 1 997, Mr Crompton had Mr Cunado in his office to discus-; the credit note matter of the previous dav when the filing clerk came in with an additional credit note issued on 19 June for SI 59.95 which she sought to place into the credit note file. Mr Crompton looked at this credit note which also read "credit on overcharge". He asked Mr Cunado "V>ho raised this•'". When Mr Cunado responded that he did not know anything ahout it Mr Crompton directed him to talk to his staff to find out who had raised it. Mr Cunado returned a short time later _ Mr Crompton said 5 minutes later -- and indicated that no-one knew anything ahout it. Mr Crompton informed me that by this stage he was starting to say to hi1melf ··this i, not the reaction I would expect from my Departmental Manager. He would be saying, 'what's going on here·> Who', raising these credit notes·' They are reducing my labour sale.s. · ". However, Mr Crompton merely said to Mr Cunado words to the effect that that wa, "unacceptable" and that he v. ould "dig into this further". A, time permitted during the halance of that day Mr Crompton worked his way through the credit note file and found a number of credit notes with ,imilar terminology to that descrihcd abm e. He informed me that he was "starting to form a picture ,s hich I didn't like the look of. I didn ' t want to im olse an1 ,ervice staff at that stage because all that was showing was that it appeared that there were credit notes being raised that were not legitimate hut I didn' t know who was raising them.". Mr Cunado came to see Mr Crompton at about 4.30 p.m. to ask whether Mr Crompton minded if he knocked off early a.s he \\ as leaving to go on a second period of annual leave. ( He had also taken some leave a few weeks earlier). Mr Crompton apparently replied with comments to the effect "No. Do you mind if the police get in touch with you•>". I n response to the query "What do you mean·>" Mr Crompton informed Mr Cunado that he had been going through the credit note, and there v.cre more than just the two that he had been shown and that he was getting a whole li,t of them Mr Crompton alleged that Mr Cunado · s reaction \\ as that he did not knms anything about it and that he then left to go on holidays. At that stage Mr Crompton had looked at about a do1cn in\'oice\. In response to a further question from Mr Ko\\ alski about what son of reaction he \\ ould ha, e expected from Mr Cunado at that time Mr Crompton infonned me that "it seemed to he a ver1 ne12ati, c reaction to a prohlem that wa-.., being .\ho\vn to him a\ heing "l1gnificanC O s er the following \\ eek the credit note file v. as more closely looked at and turned up approximately JOO su,pect credit notes, totalling just under S60,000. v. hich had heen i,sucd since January 1 992. Mr Crompton informed the Managing Director. Mr Kabel, early in the \l eek of Mr Cunado', leave that he was investigating ,uspect credit notes. ivlr Kabel wa.s also informed about the di,cussions which Mr Crompton had had ,, ith Mr Cunado at the end of the previous week and that Mr Crompton had "great concerns ahout \\hat ( hadJ come out of the discussions". The) agreed. at \Ollle \tagc during the \\eck. to call ;\fr Cunado into a meeting on the Sunday night at 7.30 p.111. after he returned from leave. Unfortunate!). Mr Crompton did not inform \1r Kabel that he had spoken to Mr Cunado about im oh ing the Police. Mr Kabel on!) found out about this comment nearer to the hearing. When questioned as to ssh1 the meeting \\ould he held on Sunday night Mr Kabel indicated that he felt "that having a meeting without other staff in attendance ,,as the most appropriate thing to do to ( sic ) hoth Simon's benefit and anyhody el,e·s hcncfit'' When asked why the meeting could not have been held on a Monday at a different location Mr Kabel an>\,ercd "That \\ould has e possihl1 . you krnl\\ , been more embarrassing: . . . . It ,,as felt that under the circumstance, and the scriousne-;s of \\ hat we have di,covered the meeting should he held out of hours.". Mr Kabel inforn1ed me that the credit note issue had been discussed at a .specially com·ened Director's meeting during Mr Cunado's absence on lea, c. The Director, decided that if the compan) v. a.s to get to the bottom of the credit note issue it ma) be necessar:, to suspend '-.1r Cunado for a week. Ip. 3 8 2 ) . Ho\\ ever. thi, v. as qualified ,hortly thereafter by Mr Kabel (p. 383) to sugge,t that it had hcen decided that if the company came "to a point of no co�operation or no n.�\olution to try to get the 1natter explained we v. ould further im estigate it and that \\ould best he ,erved v. i thout Simon hcing in attendance ... 29 May, 1 998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Mr Crompton ga, e evidence that at the Sunday night meeting Mr Cunado wa, informed that the company had found a s1grnficant number of , dit notes V> hich 1t bcl1C\ed to be traudulent and whICh totalled almost ��).()00. Mr Cunado " as asked his_ opinion on how the credit noks could ha\'C heen rai½cd i_n hl\ Jep��rtmcnt �-11hout h1:"I kn�)v,:ledgc. H 1 .., reaction \VU\ that he kneV> nothmg ahout 1t. Mr Crompton also 111l onned me:- "He didn ·r a,k to ,a) . ·can you shov. me these things·,· . He ha\ically �hov-.cd a� though. y o u knovv'. y ou · rc talking to the vvrong person. and this lack of apparent _interest in credits that had been raised in his department without his knowledge bal lled hoth Henk and myself." ssc pleaded " ith him. •simon. you krnm . tell us. Tel l us, ,dial do ,ou 1hink''' Because he basically j ust sat there and ,aid nothin!.!. \'ou knov-. . the manager of the department hcing told that there·\� a :-iignif1cant prohlem occuffcd in his., department and we couldn· t get any feedback from him. It Vv a\ ha-,ical!) I guc:"1:-i you 1.,,'ou!d sa\ the attitude \\as more one of a per\on who wa\ heing accU\Cd. - hul \\hat \\C \\ ere doing \\ i.l'> actually a-;king him to give u, his opinion of ho\\ this could have happened and we could get nuthirn.r out of him and a:-.. a result \\C :..aid. ·\Vcll. okay. v.c·rc going to in,�:-..tigatc thi\ further. · And we suspended him for a \Vcck on lull pay ... \Vhilc \1r Cunado \\ a\ on :"luspen"'ion the cumpan; further inve:..tigatcJ the su,piciou, credit notes. The company also apparently carried out the analvsi, of the lea, e of staff. rei'crred to ab,,ve, and established that no credit note� had been j...,...,ued on any day that tvlr Cuna.do \\ a.i.., ab:..cnt. In hi, es idcncc Mr Crompton informed Ille that h) this time .. \\ e \vere L0!1L'l.:rncd that \\C \\ere gett ing no a\<..,i<..,tance from the Manager of the Department to imestigate this problem despite the fact that he was -.u:-,penJed. He had gi,cn U\ no indication or wi.\hing to help to get to the holtrnn of it and WL' continued our in\ e\tigation. \Ve kne\\ . . that unlc\:.. Simon wa\ prepared lo come up with :..omc cnnstructi\'c �ugge\tion\ that a Jeci-.ion wa:-, going to ha\ e to be made a.., to hi:"1 continued employment.··. During thi, ,ame 1,cck 'v1r Kahel reached the , ie,, that because Mr Cunado "wa-.. unco-operati \ C in :"loh ing a major problem in the crnnpanJ he rnuld not he retained as an emplo)ee.... Mr Kabel felt that a Sen·ice .\tanager \\a\ ·•expected .. to knov.; ahout a credit note heing i"':..ucd ..,.,p,·,·i,Iih ii 1t harpcnL·d the day hcforc" and that hecau,c Mr Cunado could TJlll l'\plain \\ h; ll \\�b j-..,-,ucd that \\ a� '"cornplctel; unacCL'ptahlc heh a, iuur" Ads ice was lc1ken Imm the '.\-lotor ·1 rade, A"oL·iation of ()ucen,land about the compan; ,\ oh! i_!..!ation, under the di\llli�\al !a\\ :-.. Thi\ ad\'icc \\a" di...,1.:u ....-.ed and, 1n1t\\ Hh-,tandin� that ad\ ice. a tkcl\ion \\ a\ made lo prcpari.? a krrnination lctll:r. \lr Cunado Vc as rnntactcd on 1--rida) -l J u i :, and asked to u>111c to a meeting at J .00 p.111 \-lr Crompton told me that at this meeting '.\1r Cunado II Ch 111lon11cd that he had had a \\ eek to think about the crL'dit note issue and ,h1'cd \1. hat -.:ould he no\\ u 1ntrihutc. Hi:-. rcaL'tion \\.t\. aL:ain. that lw k.nc,, nt11hing clhout it. \\.hL'll he \\a\ told that he had not maclc onL' UHbtructi , e ,ug.:::'c,tiiin hi-.., rL'\POll'->L' \1. a� that he Cl>uld fl()t hcGll!\C h e d i d not J...no\\ anJ thm� ahuu! 1t. . In h1-. \\ itnc-.-. -..,talL'rncnt :v1r Cromrton re!'crrcd to thi-.. meet in? and \\ hat l\l]j()\\Cd: .. h. On hide,) -lth Jui, . Mr Cunado '"" asked to atte11d a meeting 11ith '.\lr K;ibcl and me at 3 p.m. at Mount Gra, all Brandl. He \\�h (1J1L·.: apun �hkcd hi� thoughh on \\ho ma) h:l\ C been !fl\oh cd in the :"IU\pcct crL'dit note�. hut 1.111cc again no cnthu"'ta\m to ;i,.,,i\t in finding the an�wer \\a\ di\plaJ c<l. \\.'L, 1.1.crc no\\ LlcL·d \\ nh the folio\\ ing �CL'nario: \\e had ,1( )( ) suspect credit note, totalling ,orne :\60,IJI )( ) rai,ed in \lr C u nado·, department. 11 . '.\lr Cunad" had nm, had three opportunities tu nplain ho\\ thi-.. mi�ht ha\ c ucL"L1rrcd ho\\ e, er no c.\planation of an) -..nn \\ a� fonhl'{rn1ing nor did he di-.;plaJ an) \\ illin�nc.i..,� to a-.,i..,Jq in rc ....oh ing the matter iii. \\' c h:1d analy '>ed hi-.. lca, c reconJ.., oYer thL' ptT'.CL'ding l K month.., and there \\·a-.. a perfect corrclatlon het\,·cen hi-.. 1 86257-10 ah:-iences and the non i .i..,:-iue of hogu� credit note:"! at 1ho-..c time-;. 1v. Mr Cunado wa.\ regular!;- i1l\ o h ed a<.., . ...,er\icc manager in as:-ii:..ting the reconciliation clerk to locate -;ignificant ca...,h diffrrenccs in the service till. This required him to pcru,c the documentation relating to those da) ..., \\ hen di:..crepancic-; cxi.'-.lcd. including an) credit note\ \\ h1d1 may ha, e been rai,cd. \'. I n fehru<.tr) ! 997. whibt i rn c�ti�ati111; the mi...,ccllancuu-. <..,upplics account in the general ledger. I had found an amount of '.s I LJ2.76 ,, hich related to the .,uppl) ol a tm1 h,11 fitted to Mr C:unado ·, ms n Pajcro , chicle. When I challenged him he admitted it ,hould ha1 e been coded to his own staff account ( he personally had coded the 1n1 01cc to the rnisccllaneou.s supplies account). Thi, incidern had left a large que<..,tion mark in my mind ahout hi,., 111h.'gril) and honesty. We !'ell we had no option at that point other than to dismi" h1111 based on gros, dereliction of dul\ We kl! th,ll tu «l lu\\ h1rn [t, remain in hi\ po'>ition under the circunhtancc-.. cuuld ha, e prejudiced our resolution of the matter. A letter of termination had been prepared. w he gi\ en tu fv1r Cunado �hould hi:"1 attitude to helping \\ ith Ill\ e:-itigationi.., he a\ indifferent to that of pre, ious meetings. He \\a, handed the termination letter which he read through from tor tu hottum. repeatedly �haking hii.., head. Nothin� 1.:onstrudi\'c \\�h suhscquently offered. I escorted him du11 n tu the ,er, IL'c' manager·,..; office and remained in hi\ pre\cnce \\ hilc he remuvcd his personal ellcch." Mr Cunado informed me that \\ hen he \I as a,ked lw \1r Cromplo'l about the mitial credit note of ',2 J 7.50 he could pros ick no nplanat1<1n hecause he kne\\ nothing about it and did not krnm ,,ho had issued it. \], Cunado informed me that he wa'> a !11CL'hanic hy hackground and that i n !1!•, role a-.. a Cu:"ltorncr SerYicc iV1anagcr he wa'> principallJ concerned \. i 1 11 making \Ure clienb \\ ere happy \\ ith their mechanil'al repair\. I le 1nld · h.' that he had ne, er hccn given training_ to dD anything mtffl' than 1�. , l. ( accounting i ta-;k� and that he wa:.. not required to monitor the net pr()fi, ·n hi.., area. Accordingly. he had no need to he a\\ arc ()f the numhLT nm : 1e amount_ o!' credit note'> being i:"l�ued. l-k kit th:11 rc-..pon.-.,ihilit� fui l ' h..' control and \ a!idity of an) credit note" re:--kd \\ ith i\. 1r Crompton and th,' ,tall in the accountin;c department. In relation to the secund credit n()te lnr '.s I 5 '!.'J5 and the di,cussion \\ 1th \1r Crompton. Mr Cunado essential I) confirmed that the credit note had hecn raised ,1 ith him. he kne\\ nothing about it and that when he had 411L',tH >1ll'd his stall about it none of them knc\\ anything about it ,·1ther. Jlo\\ c, er. \!1 Cunado did inform m,· that ,, hen he had approached Mr Crompton t,, he allm,cd to leave earl) on that Frida:, 'v1r Cmmpton had respundcd .. I drni ' t mind you lca\ ing hut \\ould y ou mind . . if the p()lice come and talk l ( l you w hile 1 ou are av.av·,·· When \lr Cunado a,kcd \\ h) he \\ as told "\\ el l . thi, j.., a \ Cry \erlou'> matter \\ ith thc:-..c credit note\. 1 ' 111 goin� to ...:arr; t'tlt a full in,·c..,tigation on it and to he quite frank \\ 1th ; ou it '.--link.-..,.'· \1r Cunado -..aid that he expressed a comrnent like "Oh .. and kfl \lr Crumpton to cun out the ill\'e:"lligation. Mr Cunado informed me that on the 111ght ur Sund:1; �() .lu!ll' iiL' \\a" told that the compan) had carried out an in\ e-..tigation and that tlll'rc \\ a-, :"101111..:thing like \)9.()()() which had gunc rni�:-i1ng hl'CCllhL' ()r hu�u" LTL'dit note� "'and that they had "ll'>pccted me or hcing the 0111...' \\ ho rdi-.cd thu-..,c credit notes ... I Di,mi"al application paragraph 1 0 1. When \11 Crolllpton adYi:"led him that he wa..., being .... u...,pcndcd \lr Cunado rcpl iL'd \\ ith "s()Jlk' comment ahout ho\, \\ a-.. he μoinμ to feed hi.., famil) \'Ir Cromrton ma(k' the comment "You ,hould hcl \ e th<>ught <11' that" '\1r Crompton rnncedcd that he had made this ,tatcn1L·n1 hut d,irncd Iha! he had intended to corn cy the mc"'-..,age that if i'vlr Cunudo \\ a<.., n< 1t prepare,! to co-operate \\ ith the cmnpany and p_i, c it �omc a"'-.,J...,tancc tu !ll'l to till.' hottom of the crL'dit Ildte ii..,-.uc he -..hould not "tan talking :thout hn\\ he \\ a-., going to reed hi-.. L1mil; . Ha\·ing cun-..idcred all of the C\ idcnec I am more indincd Lo hL'lic\ c !h;1t the comment \\a\ a reflection of the \U\picion alread; hl' ld h; \1r Crurnptrn1 1.:iat Mr Cunado \". a" in ,,oh cd in the i-..-;uing of hug-u, cn:di! null'-. l iTL'\pective of the \ aliditJ of that oh...,cn ation the cornmcnt \\ou1d - a-.. I rn -- 2 of 4 -- 98 QUEENSLAND GOVERNMENT I NDUSTRIAL GAZETTE 29 May, 1998 belo\\ - have done nothing to cau-,e Mr Cunado to feel that he was not under suspicion. Mr Cunado said that he heard nothing more about the matter, although the company had said that they would get back to him. until he was called into the meeting at 3.00 p.rn. on 4 July. He went on to tell me that after he responded in the negative to a 4uestion about whether he had an) thing more to add about the credit note issue he was handed the letter of termination /above). He \\ as subse4uently escorted to the Service Manager's office and all,l\\ed to clear his personal effects before leaving the premises. Conclusion It is necessary for me to sa) at the outset of 111) Conclusion that this hearing has not been about \\hcther or not Mr Cunado was the person who may have raised bogus credit notes and took the e4uirnlent amount of cash from the cash drawer in the Service Department. Each of Mr Kowabki, Mr Crompton and Mr Kabel has made it c lear that no such accusation was being 111adc. or had been made, by them about Mr Cunado and that that matter is. appropriately. in the hands of the Police and it \\ il l be up to the Pol ice to decide whether charges are l aid again�t anyone. This hearing has been about \\ hether Mr Cunado · s actions or, in the company's view the lack thereof. constituted "gross derel iction of duty°' in his role as a Service Manager and whether he exhibited or demonstrated ··unacceptable behaviour for a person holding a 111anagernent position". I ha,e indicated above that it is m) finding that there was no specific nor general system in place which would ha,e enahled, nor indeed rcyuircd. Mr Cunado to sec each credit note that was raised. It appears. from the evidence, that each of Mr Crompton and Mr Kabel nonethe!c,s ··expected" that Mr Cunado should have been ,mare of the detail of every credit note that was issued from \\ ithin his Department. Indeed. Mr Kabel succinctly expressed his expectation when he said to me " a Sen ice Manager i� expected to kno\v ahout ( the is\uing of a credit note) especial ly if it happened the day before". !\othing was ad, anced to suppor1 why such "expectation" could. or should. ha,e aistcd. There were simply no systems in place to ensure that credit notes were checked or appro,ed and nor was it part of Mr Cunado's direct responsibility to be aware of credit notes being issued \\ ithin the Sen ice Depanment. Mr Crompton and Mr Kabel may ha,e had an expectation that Mr Cunado should have been ,m arc of al l credit notes being issued but they failed to alert him to that expectation. The letter of termination males it clear that Mr Cunado \\ as terminated because of his "disinterest in ensuring that all credits raised ,,ere acceptable to Kccma On its face. the alleged ··disintcre.st" rel ates to the issuing of credit notes during the period while Mr Cunado was the Service Manager. Read thi.., wa! the comment i\ in keeping with the ··expectation'" that each of Mr Crompton and Mr Kabel had about Mr Cunado's obligation to be aw are of each credit note that \\ as issued w ithin his Department. However. it appears from the c,idcnce of Mr Crompt,m and Mr Kabel that the reference to "disinterest°· refers to the attitude demonstrated by Mr Cunado during their various discussions \\ ith him about hmv the credit notes could hav c hccn raised and his lack of .. feed back" or "con-.tructn c '.-,uggc .... tiom," about ho\\ they could have been raised \\ ithout his know ledge. Nonetheless. I hav e looked at the matter taking both possible interpretations into accnunt. Each of Mr Crompton and !\lr Kabel claimed in their ev idence that the had not made any accusation, against Mr Cunado but had "pleaded" with him to pn)\'idc -..omc \ugge-..tiun\ or an'.-..v,,. Cr-. ahout how the credit note'.-. may have been issued and the cash taken \\ ithout his knowledge. This v ic\\ was apparent I) not shared by Mr Cunado v'110 felt. at the meeting on 29 June and again on -4 Jui) . that he \\ a:-, being accu'!cd of ha\ ing created the bogu.s credit notes and taken the eyuiv alent amounts in money. Indeed. Mr Crornpton· s ev idence about Mr Cunad,,-s attitude at the 29 June meeting. viL that it \\ a'.'-. ··one of a pcr'.'-.on who \;\,a\ being accu\cd··. :-.eem'! to support !\1r Cunado's ev idencc. The comment b) Mr Crompton that " v ou should hav e thought of that" \\ Ou!d h,ne done nothing to. and clcarl) did not. allev iatc Mr Cunado's feeling that he \\ a'! being accu'.'-,ed. Further. the decision to suspend \lr Cunado " hilst the matter was f u nher im estigatcd would have si111pl, reinforced to Mr Cunado that he was the primary suspect. The fact that the meeting was called at extremely short notice on a Sunday evening v,uu!J a}'.'-,o han: done nothing to alleviate an> v icw that he may have had that he was under suspicion. Importantly , in my \ icw. the employer representatives failed at any stage to w,u-n Mr Cunado that they were concerned about his l ack of apparent interest i n how the credit notes could have been raised i n his Department \\ ithout his knowledge and about their concerns that he should have been aware, at all times, of every credit note that \\ as being i-,sued. He was certainly not told that unless he co-operated more full y in the investigation and showed more i nterest in the matter, his employment was at risk. ' I hav·c already indicated (above) that Mr Cunado had no direct re.sponsibility to o,ersight the issuing of credit notes and that he had no dirffl responsibil ity to ensure that he knew about every credit note that wai issued. Accordingly, whilst each of Mr Crompton and Mr Kabel may have npected that Mr Cunado should have shown more interest in the problem the simple fact was that Mr Cunado did not believe that the problem was his. His e, idence was that if bogus credit notes had been issued it was the responsibility of the accounting department to find out why they had been issued and by whom. It was also his evidence, which I accept, that Mr Crompton had informed him on 1 9 June. when the first credit note came to light. that he would look into it further. In addition, on 20 June Mr Crompton had also indicated that he was getting a whole l ist of bogus credit notes and had insinuated that the Police would also be invol,ed and that they would be in contact with Mr Cunado during his holidays. Mr Crompton was, effectively , telling Mr Cun ado that he ( Mr Crompton) was in charge of the inv estigation. Final ly. Mr Cunado was called i n at shon notice to an out of hours meeting on a Sunday e,ening when he was told that he was being suspended ,rhile 1he cOt11f!llfl_\° inff.lligmed tire 11w11er /ur!lrer. I al so record that I found Mr Crompton· s observation that Mr Cunado did not .seek to hel p inv estigate the matter "despite the fact that he was suspended·· as passing strange. Given that Mr Cunado had been told that he \\as suspended ,rhi/e the companr i11restigated 1he ma/ler. and that the purpose of the suspension was to al low an unimpeded investigation, I think that Mr Crompton was simpl y cl utching at straws in his attempHs) to ,uggest that Mr Cunado had been given a number of opportunities to assist the company and had declined ( or failed) to do so. l mpor1antly. in my v·ie\\ . at no time \\ as Mr Cunado asked to direct!) assist in the inv-cstigation of the 111attcr. He was a.sked onl ) . according to the c,idcnce, how the credit notes could ha,c been raised without his knowledge and did he have an) suggestions about ho\\ it might ha,c happened. The Commission is rc4uired under s. 220 of the Workplace Relations Ac! ! 997 to consider certain matters when deciding whether a dismissal wa, harsh. unjust or unreasonable. Section 220 is in the fol lowing terms:- "What to consider in deciding if dismissal is harsh, unjust or unreasonable 220. In deciding whether a dismissal was harsh. unjust or unrea:--onahle. the commi'.'-,"iion must consider - ( a J whether the employee was notified of the reason for dismissal: and l b ) w hether the dismissal related to - I i ) the operational re4uire111cnts of the employer's unLh::rtaking. cqahli...,hment or '.'-,Crvicc: or I ii ) the e 111ploycc·, conduct, capacit) or performance: and l c J if the dismissal relate, to the employee's conduct. capacit) or performance - I r J whether the employee had been v. arned about the c(mduct. capacity (ff perf(ffmance: or I i i ) whether the employee \\ as given an opportunity to rc.spond to the allegation about the conduct. capacity or performance: and ( d ) an, other matters the commi.ssion considers relevant.'·. Mr Cunado w a.s infor111cd of his termination in the letter which wa, handed to him during the course of the meeting w ith Mr Crompton and Mr Kabel on Frida) 4 Jui) I ')97. The reasons for his tennination are spelt out in that letter. z9 May, 1 998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 99 It is a!,o clear from the termination letter that Mr Cunado ., dismis-,al d to the employer's concerns about hrs conduct, capacrty or relate · d "d. · .. . . h I I d. · performance through his al lege isrnterest rn ensurrng t at a ere rts raised were acceptable to Kcema. Howe,er, it is also clear from the evidence that Mr Cunado was not warned about any concerns which the employer may have had about his allered disinterest and it is also clear that he was _grven no opportunrty to resp<md to any ,uch allegations pnor to the comrnunrcat1011 of his disrrnssal . Although the letter of termination purports to ju,tify the tem1ination for .. 0ross derel iction of duty" on the basis of Mr Cunado · s alleged "disinterest i; ensuring that al l credit notes raised was acceptable to Keema" it is al so quite clear on the evidenc_c of Mr Crompton that a n_umber of other factors ·ontributed to the decision to termmate his services. Those reasons, �e,cribed a, the ··scenario'' confronting the employer on 4 July I 997, and recorded at paragraph (h) of Mr Crompton· , witness statement are set out above. None of the concerns were e,er put to Mr Cunado. In my ,ie\\ , the deci.sion to summaril y terminate Mr Cunado's services on -l July ! 997 for the reasons stated in the termination letter was completely without foundation. In so deciding I have not weighed procedure o,er ,ubstance (see decision of McHugh and Gummow JJ in Brrne 1· A ustralian Airlines Ltd [ 1 995 ] 1 85 CLR 4 1 0 at 465-468). The company certainly had suspicions that Mr Cunado 111ay have been the person who raised the bogus credit notes. They also had other concerns -· v.hich are spelt out in the letter of termination - but none of those other concerns. in mv view. constitute grounds upon which the company could have relied to t�rminatc Mr Cunado's services. let alone justify his summary Ji,mis.sal for misconduct. Section 226 of the Workplace Relations Ac! I 997 indicates that an emplo:-cr may dismiss an employee only if the employee has been given the required period of notice or ha\ engaged "in misconduct qf u type that 11Dttld maJ..e it unrct1.,n11ahle to require the employf'r lo conrinue the n11plo1 111e111 during 1/re nmice period.'·. ·•Misconduct" is defined to include theft, assault, fraud and other misconduct prescribed under a regulation (see Regulation 37 ( below) ) . Mr Crompton, Mr Kabel and Mr Kowal ski stressed that no accusatron \\as being made that Mr Cunado had engaged in theft or fraud. That matter had been referred to the Pol ice and the Police would dl'Lide if any charge� would he laid on tho'.'-,C ground�. Regulation 37 is in the following terms:- ..i\lisconduct-Ad, s 226 37. \1isconduct of a type mentioned in section 226( I )(b) of the Act also includes la) the employee being intoxicated at work: and i bJ conduct b) the employee that causes imminent and serious risk to - 1 1 ) a person· s health or safety: or ( ii I the reputation. viabil ity or profitability of the crnploycr·s husincss: and l c l wilful ,ir del iberate behaviour by the c 111ployce that is incun,istcnt with the continuation of the employment contract: and l d 1 the employee refusing to can-i· out a lawful and reasonable instruction that is consistent with the employment contract.·· \1r Kov1 al ski gcnerall) suggested that Mr Cunado· s behaviour had put the profitabilit) of the employer's business at risk and specifical ly suggested that his wilful and deliberate behaviour had been inconsistent with the continuation of the employment contract. . '.'-;othing in the suggested reasons for Mr Cunado · s termination would f�ll Vv tthin any of those points mentioned at Regul ation 37. ;\iothing in Mr Cunado\ alleged ·•disinterest .. would have caused "imminent and .1erio11.1 nik to 1 1 · · h ·1 · t·· h ·1 · t· I I . ' h .· . . · r1e repututwn, t'w z 1ty or prq tla 1 ay <� t 1e emp o_\ er s llsrnn, ·· l f Mr Cun ado had not been paving the necessan degree of attention to the number, and quantum. of credit notes being issu;d which Mr Crompton and/or Mr Kabel thought he should have been paying, a simple direction to him to ensure that all credit note, were authorised would ha,e rectified the problem. Further, there could not be said to have been any refusal to carry out any lawful and reasonable instrnction and nor could it be said that Mr Cunado · s al leged failure to perform his functions in the manner '"expected" by Mr Kabel and Mr Cro111pton constituted "wilful or deliherate hehaviour hv !he emplov-ee thCll is inconsis1enl wilh !he continuation ol 1he emplovment contruct''. There was simply none of those factors discussed in cases like /.aw1 , . London Chronicle ( lndica/Or Newspapers) Ltd I I 9591 2 A l l ER 285 nor North v Television Corporation Ltd 1 1 ALR 599 nor in any of the other cases considered by Bougoure C in Callaghan v RSPCA ( 1 99 7 ) 1 56 QGIG 676 which could have supported a finding that Mr Cunado had been guilty of misconduct or gross misconduct, ie. "gross derel iction of duty''. Further. in mv view. the grounds relied upon in the termination letter, and expanded upo� at the hearing, coul d not be said, by normal ,tandards of fairness and justne'>S. to be sufficient to justify Mr Cunado's summary termination. It seems to me that in applying the principle of a •'fair go all round" /sec s. 2 1 3( d) of the Workplace Relations Act 1 997 and the reference to adopting a global view in Bvrne v A ustralian A irlines Ltd at 465-467) Mr Cunado has not been pro,ided with a '"fair go". The termination could not be said to be "sound. defensible or well founded". to use the words of Northrop J in Se/rnchcmdmn ,. Peteron Plastics Ltd ( 1 995) 62 IR 37 1 . It was based upon suspicion. some circumstantial e,idence and a previous incident. Although the legisl ation. deal ing with unfair dismissal s, has changed since His Honour's decision it seems to me that unless a termination could be described as "sound. dcfcnsihle or well founded'' it could ne,er satisfy the "fair go al l round" test and nor could it be said to be a termination which was not harsh. unjust or unreasonable. In Bo.11ik (Auslralia) Ptv Ltd ,. Gorgevski [No. I] ( 1 992) 36 FCR 20 - cited with approval by McHugh and Gumrnow .IJ in Brrne ,. A11.11ralia11 Airlines Lid - their Honours Sheppard and Heerey JJ said. (at p. 28 ) of the phrase "harsh, unjust or unreasonable":- "These are ordinary non-technical words which arc intended to apply to an infinite variety of situations \\ here employment is terminated. \Ve do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was. ,icwcd objectively . harsh, unjust or unrea,onable. Relevant to this arc the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gra,ity of the employee's misconduct. ... After having considered the whole of the relevant circumstances, as reyuired hy s. 220 of the Workplace Rela1ion.1 Act !997, it is my finding that the termination of Mr Cunado on 4 J ul y I 997 was harsh. unjust or unreasonable within the meaning of the legisl ation. The termination was. therefore. unlawful \\ ithin the meaning of s. 2 I 7(a). Ha,ing so decided I turn to the issue of remedy Section 222 of the Workplace Relation., Act 1 997 empowers the Commission, if it is satisfied that an employer has unlawfully dismissed an employee. to order reinstatement, or. if the Commission considers reinstatement vHmld be inappropriate. to order the payment by the employer to the employee of an amount of compensation decided by the Commission. It wa.s common ground between the parties that an order for rcinstate111ent would be inappropriate. Having seen and heard the panics during the course of their evidence I agree that such an order would he totall y inappropriate in all of the circumstances. Accordingly . I turn to the issue of compensation. Mr Cunado was a Service Manager employed in a major vehicle dealership in Queensland. At the time of his tennination he had held that po.sition for approximately eight years. Roles of equi,alcnt status and salary arc. based on my reasonably detailed knowledge of the industry which extends m er n ineteen years, relatively few and far between. Promotions -- 3 of 4 -- 100 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 May, 1998 generally occur from within and the number of ,·quivalcnt advertised position, arc relatively fe" and far hctween. Mr Cunadn ha,. as he is nhliga1ed 10 de,. mitigated hi, los,. He found alternative employmt'.nt. through a relative. a short lime Hfter his termination hy Kcema. Unril a few wt.'cks before the hearing the .salary payahlc in .such rok wa., som e $:\20 per wc..-ck le,, than that which he hat! t>cen receiving. The differen1ial reduced 10 S220 per week ,omc 2-.l weeks prior 10 the hearing. The employment i, in a related field and. whilst rnnceding that the work and fulllrc ,1ppo11uni1ies were limited. Mr Cunado ha, continued in the role. In my view. an appropriate time. wi1 hin which Mr Cunado ,hould ha,·e been eXf"'Cled to find rca,onahly comparahk alternative crnploym�OI ,u a rea,onably comparahle alwrnmivc .,a1:1ry would have. lx.'Cn fiv.: month,. A position carrying a salary or initially 60'1< and ,ubse<1ue111ly 73'¾- of the original �al�u·y j:,.. nol. in my view. a rca�onably c.:omparablc allern,nivt• positi,m. Mr Cunado has suffered a Im, or 5320 per week for mo,1 of the time .sin,c his unlawful dismis;,al l>y Kecma on 4 Jui� 1997 and. ahhough the lo,, has now b.;cn redu,ed 10 $220 per week. it will b<: ongoing. Taking all of I.he ..:irrnmstanees 111en1ioncd ahm·e in10 a(C<)Unt I han: decided 10 award M r Cunado the ,unounl of :!; 16,400 which rcprcscm, 1we111y week, m the llask weekly salary which Mr Cunado wa, receiving al the time or his unlawful termination. In de-ciding such amount I have taken into account whal I believe to have hccn a reasonable alternate period within which Mr Cunado rnuld have been expected h> find rca,onable alternative employm<.:nt and. although noting that ht.· mitigated hi� los, l>y finding a lc;;scr pvsition. I hu,e panirnlarly lakcn inlO accoun1 hi, uttuul and likdy cxplKICd cominuing Ins, in cledding the amount so aw :irdcd. I also note that the maximum amount tha 1 I could have awarded wa., ..the rcmuncniti on 1he employer woul<l have been liable to pay the employee for the 6 months imme<liately after the di,1ni�:-ar ·. What cons1i1111es ··remuneration.. ha, hccn con,idcred hy Chief C<>11tmissioncr Hall in Rohen !Hitclie/J ,, Au.1·11·11/0.,ian C11rr enio1111/ Managemmt Pty Limited ( 1997i 157 QGJG 7. The learned Chid Commissioner refers in that dcci,ion 10 ..a line or au1hori1y which. whilst falling ,hort of ,, definitive cxposi1ion on ·rc11tuneration· al regulation �OBD. doc:, cstabli,h that supcrannuatiun con1rihu1ion, paid on an emplciycc, hchalf hy an empl oyer and thc hcnel7t of prhal1..: u:-.c of ,1 lll(>tnr \t!hirk: rl.Jfln pan llf an cmplny�c·s ·n;mun..:-rcJlion·. Sec Ro/in A11s1ru/iu Ptr l.td ,. K..I. Nnrt"II print P6855 !Full Bench), C"ndm, ,, G. .fumes l:xtrusio11 Compan_r Print N996.� (Wat,on D.I'.) -- a de'<.:ision whie· h usefully g.,ithcl" together the• tkdsion, of the' then lnJustria l Relations Cnun of Australia upon the meaning of ·remuneration· when used i n the �ci..:ti<Ul irnpo1.;.i11� the <.:ap upon <.:ompcn:-.utiPn llll(kr the carlit.!r /11d11stri<1/ ke/111i011s Ao /'IX8 - ;md Joh11.,011 r Hu_, Combined /11.1·1r11111e,u Sys/ems print 1"3166 fWab<lll D.P.):·. [Vty <lc1..·ision to cxdud11 �my ..rcmuncrmion" whlt:h might relk'Cl co111rib11tion, on bchall' of \1r Cunado for superannua1ion anti the rnlue of the private use of a motor \'d1idc is Jdil>cratc. In ,lceiding on the yuan 1um of :'> 16.-100. I ha,·,· had to b,tlatKC 1he ,.;onc;cp1 of a rca,1111ahk noti�c 1Jeritld with the fact 1ha1 Mr Cu1wd11 founJ ahcrnati,·c �lllploymcnl wi1h the additional fact that he has ,uffcred. and 1vill sufli :r . a continuing and c,ngnmg los, uf ,omc $220 per week. I al:-.o rc..: nrd 1ha1 I h an.: gin;n t.:on..;i.Jcration to how I \voul<l haY c ,·k\\\.'d !his ttt:,ncr had I cund uded that the employer was ju,1ified in 1<:nninating Mr Cuna.Jo·.-.. "iC:rvic�:-.. bur rw1 :-.ummarily . I ha,c ��Hb-itkred cJ,i:-. poin1 t.akin� into a..:,ounl Mr Kowal,ki-, suhmis,ion (at p. 4J7) th,t1 the employer", \.'t.mfic.J�-r,c� i n it� Senice :Vtanagl:r lwtl hocn ··:--h,1 Hcn;d" hy what had ,:nmt.: lt.l light and that the termination ,hould he surporteJ on 1ha1 ground at least. A,k,pting the general reasoning I u�d in Dm111n /.011i.1P /JreJkrnr ,. l.i/Jaa/ Portr ,,(Au.w-o!ia 1Q11,•e11.,/11111/ Oii-iriol/) ( 1994) 1'45 QGIG l<6'J. and relying upon my knnwkJge of 1he indu,1ry as dcse·rihed al�"<-'- I hclis:Ye lhal l\1r CunaUn, afler ovi.:-r 2) year� �crvke - 8 of" tho�c a'.'\ Sl.!n·kc l\·1anag1.;r - would have been cntitlctl 10 rca,onahlc notrce or the or<kr of S rnnnth, if till' cmploytr ,ought to 1crmina1c hi, --en ice, bcc,u"c it had l<N <:Pnfitkncc in hi, ahil ity lo p,_.rl'orm the rok of Seni�e �1anagtr. A railurc b) 1hc employer to pr()I itle ,uch :,mount of noiicc 10 !\•1r Cunado would ha,e� meant - taking into w:count 1hc obsen·ation or the Pull F�dc.-al Coun in /Jnstik /cited ahn,e) - that hi, tcnninat ion woulJ (abol have �en vi.:wcu as har sh. unjust or ,1 111..:asonahlc. The amount of ,·ompcn,atio11 ultimately dctcnnincd. ,· i ,.. S 16.-100. i, .:,,cmi.ill) identic al to what would conSlitutc. in Ill) view. a rca,on:1l>lc period ,,fnotit:c. As .;uch it would not have maucrcd if my finding had been that ll1e termination it�elf was justified. 1>111 not summarily. The 1cnnina1ion would still have hccn found. in all of the circumstances. to have heen harsh. unjust or unrea.,onablc. hccausc or the fai lu re to rrovidc a reasonable period of noti<.:c or the cquivakn1 amoun1 in lieu. A lil<.e amount of compen.�alion would still luvc hcen a\\ardcd. The amount of S 16,400. taxed act:ordin_g 10 Au,1rali:1n taxation law. is to be paid 10 Mr Cunado within I\H!n1v-1wo d;iy, of the date or this decisio�. The decision of the employer to withhold the payment of pm rato long service le;ive I<> Mr Cunado wa.s al,o debated during the course of th; hearing. M r Muir. on hchalf of Mr Cunado, urged me to make a recommendation that the employer pay su,h amount. Although that matter is not s�dlil:ally '1eliirc me. and cannol he before me. I noncthcltss take the opportunity to !'<>i nL out to the employer that its decision to dismiss Mr Cunado for Lhc reasim, rclio::d upon in it, le11cr or 4 July 1997 have been round in these pro,ccding, 10 he wi1hou1 ti)llndation and ce,1ainly 1101 capable of ,upporting an argumem 1hm the termination wa, just.itied for mis,·nnduct. The employer may wish to consider such foci when deciding whet her it will c,mtinu e lo resist Mr Cunat1o·s claims lor the payment of prt1 ratu long :-.ervic:e lca\'C or v,..he1her iL will fon:c him to take the maHe.r through the Magisirate's Court. In the event that lhc lallcr course of action hccomc� n\!t:cssury the employer 11Ct.."d� to ,on:--ider 1hc qu�:,;tion of cost.°' being awarded aguin,t it. In his Applkation for rein,1a1emcnt Mr Cun:ido snughl ··ru r1her or other order a, 1hc Commi"ioner con,itlc� appropriate including hut not limited 10 cos,,..._ No con,idercd suhmi"ion, were put on this i,,w ,rnd I shall list the ma ner for th� hear ing of argume111 up,m re<:eirt of a wri nen request by the ;ipplkant. The Commi"ion dc1ennines and order,; a<.:..-ordin!!ly. A.L. BLOOMFIELD, Commissioner. Mr G. Muir. instructed hv Janssen and fonss�o. for !'vlr S. Cunltlo. Mr E. Knwal,b. ,,r 1hc Mo1or T,·adc, A,,,,ciation of Queensland Industrial Org:u1isa1i,1n or 1\mploycr-;_ for Stone, Corner Mo1,irs P1y L t<l trading as Kc,cma Hyundai. with Mr S. Kabel. ######llll#lt###ffl###ll####l/########-##11#####1/###ft##IHI######## 29 May, 1998 QUEENSLAND GOVERNMENT INDUSTRJAL GAZETTE 101 -- 4 of 4 --