Dawson v Coca Cola Bottlers [1995] ICQ 25 (1995) 149 QGIG 1173

1172 QUEENSLAND GOVERNMENT fNDUSTRIAL GAZE lTE [ 18 August, 1995 ll I I I i 18 August, 1995) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1173 #ll##l/#####################11######11##########11########## QUEENSLAND INDUSTRIAL COURT Jndusrrial Relations Acr J990 s. 118(2) - appeal from decision of industrial commission Hugh Dawson AND Coca Co la Bottlers (NQLD) (No C24 of /995; JUSTICE MACK ENZ IE, PRESIDENT 8 Augusl 1995 Appeal - Decision oflndustrial Commission - Refusal of Application - Alteration of T ime Card - Guilty of Conduct to Warrant Dismissal - Cla imed Respondent owed him Money - Not Entitled Pay ments according LO Time Card - Serious Misconduct - Categories for Purposes of Aigument - Did not Err in Law - App lication Frivo lous or Vexatious or Abnonnal in some other wa y - Appea l Dismi ssed - No Order as to Costs. JUDGM ENT TI1is is an appeal against the refusal of an appl icati on for reinstatement. The appellant had at tl1e tim e of dismissal been employed for about 19 months by th e respondent at Mt Isa as a beverage technician. The eve nt which led to his dismissal was the alteration of a time card, the result of which was t hat double time was claimed for certa in work when ti me and a-half was the appropriate payment. Before tl1e Commissioner it was not disputed tl1at initially the applicant had recorded the co rrect figures b ut s ub seq uentl y alte red the card by using white correc tion flui d to obliterate the original entry and writing the new entry in. 'lne Commissioner said tliat the case re so lved principally around one issue, whether or not tJ1e appellant in deliberately alterin g tl1e time card to secure additional payments to which he was not entitled was guilty of conduct which would warrant di smissal. An aspect of the appellant's case was that he had in fact worked overt ime on other occas ion s but had not claimed for it at the appropriate time in the appropriate way . There was evidence before th e Commissioner. the thrust of which he accepted. tl 1a t tlie appellant was soon to chan ge the ba~ is of remuneration from an hourly rate including overtime to a salaried position and tha t he sa id to anotl1 er employee at about the time when the time sheet was altered tJiat he ma y as well get as much out of the company before he went onto salary . When confronted by the Area Man ager the appellant initially denied altering the card but when asked a second time, admitted doing so, claiming that respondent owed him money. No previous claim in that regard had been made. The basis upon which the Area Manager ac ted was tha t he had no option but to di sm iss tl1e applicant for "fraudulent" alteration of the time sheet. The Commissioner said that the applicant had knowing ly and deliberate ly al tered hi s time c ard to secure payments to which he was not en titl ed according to tl1e hours listed on the time card . He said that that amounted to serious misconduct. He also found that tlie applicant was given a chance to respond to the allegations but did not offer a satisfac to ry explanatio n in the opinion of the re spondent. He also referred LO the fact that th e em ployee was in a position of trust in recording times worked. 16089_1 DOC -- 1 of 2 -- 117 4 QUEENSLAND GOV ER NMENT IND US TRIAL G AZETTE l 18 Au gust, 1995 Earlier he had observed that lhe applicant seemed lo see nothing wrong in fa lsifying a time sheet to ob ta111 monies he claimed to be owing from other occasions . Some foc us during the hearing occurred on a passage to the followi ng eftect: - "To this extent I have fomied the view that the applicant may not have altered lhe time sheet with fraud ul en t in tent but what he di d. nevertheless. amounted to serious misconduct.". · 111at passage is concerned with the proposition IJia t the appellant may have been attempting to a~scrl a right lO be p,1id mon ies owing from other occas ions but creating a fa lse do cument to do so . There is longstanding au thor it y for the propos ition that where th ere is a genuine claim wh ich a person could prove if proper means were adopted bu t in respect or which documents were used which arc not genuine. that may demonstrate an iment to de fr aud (R v. lfopley (1915) 11 Cr App Rep 248: R. , •. Proc1or & Perrv ( 1963) Qd.R 335). It has been said the fraud is in the mode of getting the money in such cases (R . v. Kri1= ( 1950) l KH 82. 87). The appl ic.llion must be determ ined accord ing 10 the principles as they existed prior lo the 1994 amendme nt com ing into effect. It was submitlcd by the respondent that the grounds of appeal ra ised only questions of fa ct and did not raise questions o f law. The grounds were grouped in to three catego ri es for the purposes of in the Commissioner's opinion an application is frivolous or vexatious or abnonnal in some other way. It wa~ open to the Commissioner. in the circumstances of the case. to make the fi ndings that he did. He was entitled lo take the view that the consequences of the late ness of the application were relevant in d ctem1ining whether he ought lo exercise his discretion to award costs. There is no error of law demonstrated. The grounds of appeal therefore are not made out and the appeal is dismissed. I make no order as lo costs of the appeal. Dated this eighth day of August. 1995. K.G.W. MACKENZIE. President. Appearances ·-· Mr F. Dawson. So l ic itor. (of Cleary & Hoare) for the Appellan t. Mr A. Homeman-Wren (instructed by hee hill Hollingdale & Page). wi th him Ms Mci\u liflc on be half of the Respondent. Operative Date: N/A Judgment - II. Dawson and Coca Cola Bottlers (NQLO) Released: 8 August 1995 argument. The first group was concerned with aspects of the ######## l#l############### #### #### ##### # ## ## /1 #######/I### subm iss ion that Ilic Commiss ioner had erred in law in fi ndi ng serious conduct warranting dismissa l. The second cla imed that the Comm issioner had erred in find ing th at the appellant wa, g iven a proper opportun ity 10 explain why the time sheet was incorrect and that procedural fa irness and natur al .iustice had not been accorded. The third complained lhat the Co mmissioner erred in law in fi nding that there were ahnornial ci rcumstances justifying an award of costs against th e appellant. As to the first two arguments. I am satis fied that the lind ings were open on the ev idence to the Co mm issioner. I le did not err in law in making them. So for as argument as to costs is concerned the Conun is sioncr rel ied on the "a bn onna l circumstances" basis re ferred to in Goldman 1·. Daw General Aus1ralia P1y l.rd (1993) 144 QGIG 379 as ju st ifi cation. The appli cation w,t, sc1ved on 5 October 1994 and the Arca Manag er wh0 had d ism issed til e appellant ,,ent lO Papua New Gu inea in the emp loyment of the responden t in mid November 1994. The appl ication for ex tension of time was heard and granted on 25 Ja nuary 1995 having been resisted on th e basis that the respondent was prej udiced b) reason of the Area Manager being oversea,. 'Ilic Com missioner said: " It WJS flagged at th e ·extension of time ' hearing that an applica ti on tor costs wou ld be made by the respondent if it was necessary to hring (the Arca Manager) back to Austral ia to provided (sic) evid ence at the heari ng.". It was subm iucd on behalf o f the applican t that no application was made by the responden t fo r an e.)(pedited hearing and that Il ic resistance by the respondent to extension of time in which to lodge the applicati on contrihuted to the fail ure to have the matter heard before the Area Manager went overseas. The Comm iss ioner too k the view th at had the appl ication been lodged within time it would have mos t likely been heard at Mt Isa prior to the Area Manager's transfer. In the ·c ircumstances the respondent wo ul d not have incurTed the cost o f br inging Ilic Area Manager from Papua New Guinea no r the cost o f two witnesses brought from Mt Isa. He took lh e view that the circumstances were abnonnal and that Ilic rcspondem shou ld not have to bear th e coslS occas ioned so lely by the applicant's late lodgment of the appl ica ti on. The su bmiss ion that there has been an error of law on the part of the Commissioner misconceives the nature of 01e discreuon 10 be exercised. Tlle comments in Goldman v Dala General Ausl ralio Pr y l.rd indicate tl i at the question of costs remains a disc. rc tionaiy ma lt er. a relevant consi deration being whether 16089_1.DOC 18 August, I9951 QUEENSLAND G OVERNM ENT INDUSTRIAL GAZETTE 1175 -- 2 of 2 --