Clemow v Illaton Pty Ltd [1991] QIRC 199 (1991) 137 QGIG 203

202 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (15 June, 1991 15 June, 1991] QU EENSLAND GOVERNMENT INDUSTRIAL GAZETTE 203 QUEENSLAND INDUSTRIAL RELATIONS COMMISS IO N Industrial Relations A <.'l /990- I 99 I s. I L l l - application for reinst atement Ashley Dean Cleinow AND lllaton Pty. Limited (No BI8i of 199/) CHIEF INDUSTRIAL COMMISSIONE R LEDLIE 31 May 199 1 Termina tion of Employment - Dismissal - Reinst atemen t - Harsh. Unjust or Unfair Dismissal - Photocopying and Alteration of Jus tice of the Peace Ce11iticate - Summar y Dismissal - - Evidence - Insurance Obligations - Arbitrated Matter - A pp li - cation Granted. DECISION The facts of this matter are not really in issue. I accept both witnesses as re li able wit h eac h giv ing an honest recollection of relevant eve nts. T he app li ca nt now 26 years of age was emp loyed on 5 November I 990 and on 5 December I 990 was appointed 10 the position of Manager of a provincial branch of the Bank. On l May 19 91 he was dismissed fr om h is position following a visit from his Regional Manager and another Bank Executive. The dismissal by the Executive was explai ned by his diary note that " ... I was term inating his employment with us because of his actions in this matter. I pointed out . . tha t we could not suppon a Branch Manager who invo lved himse lf in une thica l and/ or illega l actions". From the largely un challenged ev idence the following findings can be made - I. In his employmen t with anot her Bank some four years ago the appl icant formed the view that he should try to emula te the sta ndin g of his then Manager and Accountant each of whom was a Justice of the Peace. 2. In the li ght of some traffic offem:es which he had incurred he was then advis,:d by his loca l Member to again raise the matter when he was ab le to d isplay a sa tisfactory traffic record. 3. Recent ly and within some two months of taking up his appointme n t wi th this Bank he renewed his interest in the prospect of becoming a Just iee o f the Peace. This exten d ed to - • learning from his Regional Manager's secretary th at th.: Bank enco uraged staff to attain recognit i on as a Justice of the Peace: • his enquiring of a T AFE College near his residence as 10 the co st, con t ent and access to their course5 for Justice of the Peace; and • ga ining from h is Regional Office approved ti me off to discuss this issue at an appointmen t a rranged with his local Member for I 8 February I 99 I. (T he appoin tmen t for that purpose has been confirmed in writing by the office of the local Member). 4. The Personal Bank Assistant who w or ked in th e same branch as the applicant was a Justice of the Peace of the State of New South Wales and disp layed her Certificate o n the wall in her separate office. 5. At some t ime afte r 5 December l9 90 and before I May 1991 the app licant temporarily re mo ved from the wall of the office of the Personal Bank Assistant the Justice of the Peace Certificate. 6. He did th is after norm al hou rs when other staff had left; he used a (contracted) serv ice in the same bui lding to pho toc opy that Certificate and o n re tu rn ing to his office used "w hite ou t" to create a blank J us, ice o f the Pea ce Certificate upon which he typed in his own name and (separate) dates attributable to his hav ing bt!en appointed and having taken an Oath of Allegiance. -- 1 of 2 -- 204 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 15 June , I 99 I 7. Each of those dates preceded by many months his appoint- ment to his poslllon wuh the Bank. 8. He replaced the Cenificate upon making t he. photocopies. 9. He photocopied the Justice of the Peace Certificate of an employee with neither her prior knowledge nor her approval. 10. He did so, imbued with the prospect of pursuing an approach and course of study which could lead t0 his appointment as a Justice of the Peace. I _I. Whether he did so _i n la te February 1991 as claimed is difficult to determine with confidence as there is no evidence to th e contrary. 12. I accept that the applicant. utilised photocopies of the Justice of the Peace Certificate of another person, super- imposing his own name to "' imagine" a position he sought to achieve. 13. He placed the photocopies, superimposed as stated on a credenza in bis office together with notes of a training course. From the evidence they were pu t to no other use nor were they intended to do so. 14. From the (unspecified) date of that photocopying no menuon was made of that action in any form un til 30 April I 991. l 5. On ihat date, in the late afternoon and in the absence of the applicant at a Manager's Meeting an emplovee of the branch at which he worked (not being the employee to whom the Justice of the Peace Certificate related) telephoned a staff member in the Bank's Head Office and advised of the finding of the (a ltered) photocopies of the Ce rtificat e. 16. Upo n this being conveyed to the relevant Bank Executive he made a point of confirming the discoverv with the staff member whose Certificate had been photocopied. I7.. The Executive also sought advice of the Corporate Sohcnor and bemg aware of the potential of the situation deci_ded that he and the applicants immediate Supervisor (a Regional Manager) should confront the situation next morn - ing. 18. At 8.30 a.m. on I May 1991 the hecutive and the Regional Manager confronted the applicant who on being questioned - • stated he was no t a Justice of the Peace; • agreed that he had produced a Justice of the Peace Certificate with his name upon it; • sought (without success) to produce the altered Certif- icate from his credenza before the relevant copies were tendered to him by his superiors; • denied that he had ever signed a document as a Justice of the Peace, or used the Certificate for that purpose; • apparently gave no acceptable reason for his actions other than his contention that - "In hindsight and vou don 't have tO tell me how sillv it sou nds but I did it to see what mv name would loo k like on one.". • 19 . Bank policy forbade a Manager from wi tnessing any documents of a client relatmg to Bank business. 20. The presence of a Justice of the Peace in the Bank was encouraged as a client service in relation to no n-bank doc- umen ts. 2 1. The Bank Executive stated in evidence that he accepted the app licant's statement that he had not used the (alle red l Certificate at any time to support the wi tnessing of signatures. 22. On I May_ 1991 _the applicant was t0ld by the Bank Executi ve that mdica11ons from t he Corporate Solicitor were that in_ committing this act _(th_e app licant } had, or may bave committed one or more cnmrna l offences. 23. At that interview on I May l 99 1 the applicant was d1sm 1ssed from his em ployment by the Bank Ex.ecutive. No animosit y was displayed by any party in respect of that event. 24. The dismissal clearly resulted from the in terview and the circumstances which preceded it. It is oflessor relevance whether the reason was unspecified as ciaimed bv the appli- cant or for une th ical and/or i lle ga l actions as contended by :he Executive in his diary note. 25. For t he respondents it was conceded that the actions of the applica nt did not to their knowledge amou nt to any criminal offence in Queensland. 26. In that regard I cannot find that the app li cant indulged in any illegal activity. 27. The potential inherent. in the alteration of a photocopy of a Justice of the Peace Certificate was a paramount factor m the mmds and acuons of _the Executive (and perhaps Regional Manager) 111 the decision 10 term ina te the employ- ment of the applicant. 28. That concern was illustrated in the diary note of the Executive that "based on my report the Corporate Solicitor may decide to report (the appl icants') actions to the appro- priate authorities". 29. At no stage did the applicant' s subordinate staff raise with him. their concerns as to the photocopied Certificates, the propnet y of makmg them or the purpose for which they were made. 30. In relation to t he incident described the actions of the applicant do not constitute dishonesty and were devoid of any criminal or devious intent though they were seen by his Management to have that potentia l. 31. Though unwise because of that potential t he actions of the applicant cannot in the circumstances be seen as a violation of his responsibilities and d uties as could warrant the action taken against him. 32. It is unlikely that the ini tiatives ta k.en by the applicant towards aspiring to the office of Just ice of the Peace were known to his superiors at the interview of I May 1991 . 33. The actions of the applicant as described - • warranted censuring by his superiors. together with • appropriate ~ounsclling directed to ensuring h is clear appreciation of the poten11al of his actions; and • a renewal by him of commitment to his Employer. his position of responsibility and to his staff. 34. The applicant _was terminated from his employment based on the potential rather than the reality of the situation . 35. T he act of termination was an unwananted over reaction to the real circumstances_which had emerged on I May 199 1 even allowmg that certain factors now disclosed befo re me were not made known in the interview of that day. 36. As a consequence and in the circumstances wh ich are but briefly outlined here I find the summary dism issal of the applicant was harsh and unreasonable as would ma ke the intervention of the Commission pursuant to s. 11.1 1 not only j ustifiab le but inescapable. Consideration need to be given to the re lie f claimed by the applicant. For the Employer it was _a_rgued that a factor mitigating against remstatemen t was a cond111on of a pohcv between the Bank and its insurers by which the latter had the right to exclude cover in respect of "any employee of the Assured as soon as the Assured shall discover any dishonest or fraudulent act on the pan of such employee .. -''.· It is acknowledged that the Bank has a duty to d1sc-lose to an msurer before a contract is entered into, includi ng a renewal thereof, all relevant materia l. Th is ':"as _put. on the basis that an obligation to employ a person engaging m dishonest or fraudulent acts could de trimen tall y affect the terms of the cover or leave the Bank devoid of cover in respect of such an employee. It is no, difficult tO understand t he purpose of the policy safeguard. I simply record t~at I do not regard the actions of the applicant as const1tu 11ug a dishonest or fraudulent act. That conclusion does not deny !he En:iployer 1~e right to require acceptable standards of performance from stafl. I do not regard t he insurance implications canvassed before me as prov_iding any basis for de nying approp ri ate relief which I have deterrnrned. ln t he. circumstances of this matter I propose to confer with the parties prior to finalising the de ta i ls of that appropriate relief. Relief 15 June, 1991) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE The Commission is satisfied in all the circumstances Ashley Dean CJemow should be reinstated by lllaton Pty. Limited to his former position without prejudice to the former conditions of employment. It is unnecessary to contemplate any alternate form of relief. That reinstatement is to occur on or before Monday 3 June 1991. Subject to s. 11.11 (5) Illa ton Pty. Limited is to pay to Ashley Dean Clemow remuneration for lost wages and associated benefits from the time of termination on I May 1991 to the date of compliance with this Order. Ash lev Dean Clemow is to be reinstated as Manager of the Coo- langaita Branch of Metway Bank, or to an equivalent position at an alternative location as may be mutually agreed. It is a condition of this Order that both Ashley Dean Clemow and relevant officers and/or employees of Jllat0n Pty. Lim ited undertake in $OOd faith the processes contained in finding No. 33 of this dec1s1on. A formal Order may be taken out if necessary. The Commission orders accordingly. L.N. LEDLIE, Chief Industrial Commissioner. Appearances:- Mr R.D. Petie, with him Mrs J.M. Spellacy, as agent for the ap plica nt. Mr R.J. Livingstone of Livingstone and Associates for [llaton Pty. Limited Operati ve Date: 3 June 1991 Decision - Reinstatement 205 -- 2 of 2 --