Cass v George Simon & Sons Pty Ltd [1997] QIRC 7 (1997) 154 QGIG 464

464 ( ;ovER~!v1FN r LNDUSTRIAL GAZETTE QUEENSLAND J l>FCISl<f'- 31 January, 1997 . . ' ' l .. ,,n l\iaur,cc Chn~turher Cl"\ (the ,,/:\~, ~;.~,t'init~1 1~,\~~i,~;~:;1e;·:~ .\~::\c,mk't l,)()\irinn ,h General t1,1aHae1er .,{•~,I"•' ' .. .. ,, ~-, P•\ l t(1 (•h,, rc,,p,)i10t,'.111 l, \,\'ilb (}C()f~t; S1n1on ,\:, ,i,{il1'.-, ~ 1 ~ ~.- ,\ ,,u~ ... I ,.. , ,t \~ ith the n·,pondcnt in J:umary The ,1pph1 ,int C,\P\ll)','CCs:1! '.'Ill!' \)::;,1~·,\tiy., s11mmanl} di\llllS\Ccl on 2:'i ,,~t(i. lh," \\;r, 1t-·tn1lna1cd. nr rnore •\prd }qiJ6 Pn·vious Emplon1wnt Tilt.· Pn,.itim1 Htld \\itii The Re-.ponde111 31 January, 1997 QUEENSLAND GOVER,\TMENT l:'JDUSTRIAI, GAZETTE 465 Similarlv. Mr Tiiylnr. Financul Contrnllcr, :-.aid his understandinμ: ,va~ •h.!i the Jpplicant was to be Hwinly concerned with Hn\bane operati,>n, hut :ll!, would be ,:xtended in the futme Numerou~ statement-, brought to SG\ nok·e hy otht'r cmpiuyc,:·, C(>nccrning problems with the applicant) i.,:. manner and trclltmcntl. No direct evidence wa, hrnufhl "n lht·\c mattt:1, from the \XT-,r>rh cornplainir11:( lo SG. fh(' applicant denied tha, he wa, a<hi,cd !hat he would init1ail., (/lli} /Jt' ,,,cr,c:cmg /he Bn,bane (1perations hut for rea~ons which will become :ipp,11c1:1. I prdcr rlw c, idcnce or Sl, 01-,:1 that of the <tppiit:,mc Ret2retfully, the matt::r Wlh n,>1 d,Kurnented nor were -;t:1ff in the B~anch,:, alh i,ed r\.dvict>!Im,trurtinns Given To The Applicant l! v,,IS th,: evide!ht' ,,)f SG that wnh m 4 wccb of the arrlicant':,, empiovment, he rang 'vlix1uourn Pt_v Ltd ( Mr C.miemn) un at lea.,t ~ <x:ci,ion\ to discuss, complainh he had \I/Ith the apr'h<:<1nl and how to ilea, wi1h the applicant'-, inadequacies He rd~·m~d tc. certain matters penaining tu 1h1· app!icanr', (kalir.g with staff which he had brought tn the applicDnt's ath:Tll!<>J!. Mi Cameron in his c1idence confirmed that SG ht:d :,pnken to imn on , on-a,i,m, in tht' first 4 we,~k;, concernm? t11e applicant. He ,aid he had ,1 ;11eeting with the applicant advi,ing of SG·~ cum-e,n, He ,11g['.e,tcd tu tlit> appl;canl ,hat the applicant ha,e a discus,ion with SG and for the applicam t'1 contact hnn in the future ,.o di,,cuss how things were procccdrnc. fhc applicant seemed unable ro recall the tilnes SG ,:ritici~ed hi,; work or the ,r-.:cific meeting with Mr Cuncron \\here Cl'l1ain short(:oming, as J)CfCCl\,~d by SG \H'rc di,D,~wd (\·rt,1inly, he did not contad SG regarding the Platter-, nr arrange a further meeting with Mr Ca11Jero11. The applicant did :-,late that he had a discu,~ion with ,\fr Cameron hut ir wa-; not m respect to cntici~rns as 10 his performance. 1\latters Reflecting On The Applicant's Management Ability A numher ilf matter, were rai:-.ed dea!inp with the applicant's abilit) to m<1n.1,i.:c ,1,d· m al bu~ine.,, environment and with respect t 1J ch:ahng with \aiunl ::u,twth't, Thi: :1pplicrnt ciid,ing h1, iingc·r--; at d fluor worker to get .,omcthing don::. SG st:.tt,'d that h:: ,~itr,e,,ed the incident ;1ml tt,ld the applicant it wa,: no: the way th,~y treat :staff. The applicunt denied tm:, o-xurred. ·1 lw appltc:ant did re,:a!I on one occasicn whistlin).'. a -:,taff rnemrx:r to fc,'t his atkntwn. I hv applicant ahu-,ing ,wd tNng msultmg and ahus1ve language 10 Ion<: ~(·nirw. .-,!aft member (working the mght ,;hilt) in Cairns. !'he \1ati ,;,,:mber rang Mr:-: Toule 1T). !he Curp(,ratc -dwir:i~;tr;Jt1011 Manager for l\on h Queensland, cry1n1I and dhtraugilt and sa,d she \,a,, tendering her re0,ignation. Mr, T gaH: n idcmc. Slx· bt.:r nrng the apphlanl. Th,: applicant :,aid rhc ,taff 1;":whn ,.,_a, iyrnr Thcv had hdd .t friendh nmveEation. Mn, l '-'.i, nut •,;ill,;h:d w11r, th,: !l''·-fl(•rN: Sk tdcjllH•ncd SG SC "j>llk.t· ;he :irplirnnt who ,ub,equentl_y agrc.:d wirh Mr\ r,, ver\ion and H:,c:rccd to apnlogi-,e to rhc· staff rrt(.;frl!X'r. He tdephoncd the ,,taff n1crnher \onw hour,, later and apologised. Ailcgcdiy, lhc apph(;,m, i,·,w:d .111 rn,1rndinn that nobody Wi!, tci discus, the mailer with :my"ne in the Bri,hanc Brauch oriw1 1/ian with th1· appiit·an; hm1,:df [ ht: appiicant unda croc;,.-<:xam'nat10n did not recall the phone ,·<tli trnm Mr\ 1, didn't nx·all SC, rni\in~ !he incidrnt with him. didn', 11.Yall :1ix)logising to the ,rnff mcmhcr ,md didn't recall issL:inl=, an in:-..truction i11 n""\friecr to the rnauer Tk 1ppiicw1t ;ifkr 1,i, app,.)intr:1ent riafing the Cairn, o/r1c,· dnnandmg: ,,xn.un inforn,ati011 Whu, the ,ta.ff niemhcr. \\-/1,, w;i, n(,t ww,1rc of his appuintment. said she would reqllirc the Manag,·r·, r,crrrn,smn 'at Cums) lx:fore relca,ing i11forma,inn, he aik)!c'div ;udelv ydkd hc wa, the ne,\ Gcn1,;ral \fonagcr and cntJtkd tc, the i11f1H1Jia(if1rl The "Pfllic:mt ahu.,mg c1 female ,taff member al An,ett and n:lu.,mg to credit returned produce, A1H:t1 mdicated t(l SG th:ii lhey in,u)d not deal witil the rt:~pondent a,1rnin untJ! Stj ,isitcd Arhett to fix L;p the problem the applicant created. Ansell further advbed that they wuuld not deal wiih the applicant a11ain A:1;,ett wa, a major cu\tomer of fiw re,pondent S(} told the :1ppliuw1 th.it it wa, outsid,~ hi~ iuri\diction :i.t the time 10 deal with the rc~pondent' ., maJor clientL The applicant said in evidence th,,t SU rnent1oncd he wasn't happy hut \moothed out the martt:r wllh Ansett. !\1, Martm for the applicant valiantly tried to justify the applicant', action~ on the h:i:-.i, nf th,, respondent's Qualiry A,\\umnce Policy Howe,cr, dlt' a,:tion take:1 hy the applicant. in re,pecl tu a !llajor cu,t,nl!cL pl~icec. a 4ucsti,rn mark over th:;: ·'bu~in:.::ss ,cmc" of the applicant. The applicant demanding to ,peak twice to thl' G,,ncral MJnagt:r Di tht! Hvatt at Sanctuary Cove foJl,)wine: contact t)\ :, markctin).! eomp;ny ottering hnn a Gold Card !or u,e at the Hotel. Alleged!), the applic<mt \\as furious at v.hat he c,Jn,idcrcd an inva,ion of hi" privacy. Th,: Hyatt wa" a r11aio1 c11,tnnicr r>f !11t'. H'~p<,nde!ll SC; v,arncd the applicanr he ougiH tc -c:onduc! hirmelf in a more profo•,sionai manner with major cu,torners_ Evidence wa, hrought hv other \\itnesse:; for the r,~,;ponden! which was generally :,upportivc of the e~idcncc provided above It ;, not 11,.;ccssar:, for the JHHpo,e, of this dcci,ion to provide further details uf !hc1t c,·idrncc. Particular hsues Surrounding Dismi~sal The evidt'nce uf SG wa•..,. that he h.id concern;, ova the applic,mt' \ treatmem of the Nr,nh Queensland Branch Manager, Mr D. Tottle. He s,iid that Mr To1tlc had been employed for 2 year!-. and had taken 011 addi1ional respons1bility wHl condu2tcd operations succcssfullv. SG stated that the appheant atternpt~d adoptmg aY,UIIicd power ovcr \1r Tuttle and rc!erreiJ to Mr Tottk'~ in~ignificant role Th,.' applicant w.1~. told hv SCi 1hai. he ,!iuu!d 1e;,1x:ct Mr Tottle and the po,ition ;md h,: w;1, get on \\:ith Mr T,ittle . .SG ,aid that he alsn made CPJllfll•inh to the arplicam hefore guirn.! overseas on a hnlidav but when he returned he found the appfa:ant had ;1>Jt io!lowcd his reqtw,t hut had created a -;ituation where the rclutionship had deter i,lrated Mr Tavlor indicated that he had alM) "Pokcn to lhL· applicant concerning the imprni,;,n r,ilt· of D Tottle He stated h,: wa;, p,:~enl wht'n S(i idvJ\ed the applicant he wa;, no! happy with the way the ,1pplicant wa~ !reating I) Tortle and he wa.<: to rc,;pecr D. Tottlc's pn,ition in Nonh Queen,fancL The evidence of A. \Valker 'wa~ thal an incident p,:curred 'Ahcr,·by th,: applicant made a deru1"atory remtrk about D. Tnllk. Mr 'Walker said n·fercncc was made to the systnns being u:,cd rn Cairns which he '.->aid -.houid be i1m,lcT,e1Jted in Rr,,t,,1111· The appk:.im responded "Denni, "l otlle w;ll learn th;;re i, '.lfllv rnom for one General Manag,:r ir, thii, company,, The statement was m;dc in the r,re.,en,:e ot' C. Frcdt:rick who wa, aiw at the mec:tmg \\ alkcr advised ~1r I ayl,)r and subsequentl:,- advi~(:d SG. Ile ,aid SG .iskcd tiJr the exact words that had OC<:ll said. The cvidcm;c of sn confirmed the mivicc received from Mr Walkt:r_ lie called Mr FP.:dc:rick who wa, ai,o at tht· meeting and <1skcd him v..hat h;,d 1Jcc111T,:,l Mr Fredcriek advised that a statt:m,:nt had been rr1.1de h> the app,icanr in respect to Mr Tott!<:. The word, advised by \1r Frederick well: -.imilar if not identical to the word, used hy l-.lr Walker. There i;. "Ollle di,;pu1c a:-. 10 rhc number of meetings h;;.•ld between SG, Mr \Valkcr and Mr Fredcnck to ,·ui:lir:n tht' nact w,mJ, med. There i, no conflict ,h to wha'. wa\ ~aid. Both Mr Walker and Mr Fu.:,krick. in evidcn::::t' confirmed \,hat ha,l <l\.T'trrcd l rniu:llt add th;.it \Ir Frcd~rict no lmiger work<. for lhc re~rondent SG told w;Jker and hcdcnck tl1c1t he propo:sed w c:<,nfront th,: arpli~·an! r>vcr what had hccn ,aid. SCi c:Pnfronted the applicant ,..,ith the \tatement. lhe applicant dcrncd mal,,.in~, tht' ,tatt·m<::m SG s:1id ,hat in <1 ,ub<;equem di,\cussio:1. he ,:iid to the appll,:anr tha! Walk,:r and Frcd::-ri,.:k ""ould have to go if they wcrt· 1 1mg about the <,cneral Manager SG ~-aid he was appr,iach-:d by 1 ht' applicant ;J L'1)uple ni tHn,.;:, to find out wh'-'ther SG had di~mis),ed \Va!kcr and kderick Ah i~e b\ SG thm l1:, h1:•ihcr (llam10:1 Gcor1,'.c. a Dirc-ctor, had t,)ld him (h,H the applicant had lost his !ClllfX'I and lwd l·~:cn ,,b:1,i,,· ID an ,:mplowc durinf the rc!ocuti,)n of their 1uiG: :·aetnry. The applicant didn't recall thi,-.; n•:currinμ. 163 96 7----35 The appi1cant wa,; ~ubsequently cfr0.mi,;,;cd b, SG for 1101 admitting t•l the li,: It ,hould tx: stakd that at no time had SG intended Ill di~m1~~ Walker 223 l 7J I)(}(' -- 1 of 2 -- 466 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 I January, 1997 and Frederick. It was a mechanism used to ascenain whether Lhe appfo:ant would admit to what had allegedly been said. The applicant's evidence is riddled with statements where he was unable to recall events or could not provide un explanation as to why matters were not mentioned in his state1m:nt. At the termination interview SG also referred to a number of probkms created by the applicant during his -ixriod of employment including the fact that he was prepared to allow 2 men to be tenninated on the basis of his lie. On the evidence available to me, I am satisfied that he clearly either fabricated matters or provided half-truths or untruths to disguise the trne situation. The applicant m his evidence said that he was ask-xl by SG why he had made toc remark previously referred to in respect lo D. T oltle to 2 sales executives. He said he denied making the remark. The applicant alleged that if the respondent accepte-0 what the applicant said, the respondent would dismiss the 2 executives as a disruptive influence to management. The applicant said he advised SCT this was not a good idea. On 24 April SG advised the applicant he intended to dismiss the executives later that day and whether the applicant wished to be involved in the dismissal. The applicant said he had reset.1ations about the legality of the dismissals and did not wish In relation to the question asked by the Queensland Basketball Inc interviewing panel, I am satisfied, on the evidence given, that he clearly mi,led the panel. He had been dismissed from Simon George Pty Ltd. He did not resign. to be involved. The next <lay the applicant was called inw SG' s office and asked to resign. The applicant said he refused to resign and that he had not made the alleged statement. He was then dismissed. Ce1tain comments were then made by SG alleging unsatisfactory aspects of the applicant's set.1ice with the respondent. Matters Relating To Subsequent Position These matters go to the credibility of the applicant. The applicant subsequently secured a position of General Manager of Queensland Basketball Inc. R. Askew, Acting General Manager (Honorary) who was a member of the interviewing panel gave evidence as to the content of the interview. He provided evidence that the applicant indicated that he had resigned from his recent employment because he had been invited to do illegal financial deeds that were ethically incorrect and morally he had no option but to resign. He said his fonner employer (allegedly the respondent in this case) would be a hostile referee. In the intervening period between employment with Simon George & Sons Pty Ltd and Queensland Ba-.ketball Inc., the applicant had for pa11 of that time worked for Woolworths Pty Ltd. This was not divulged by the applicant on his statement but extracted 11nder cross-examination. The applicant said he didn't know why he mentioned nothing about that employment. The issue regarding illegal financial transactions referred to by the applicant was said to be the receiving of cash by A Hilllll), a fork lift and delivery driver with the respondent, from lhe "Bank at the Market'' to be given to SG. Both SG and A Hillary. in evidence. denied such an occurrence. The n:·.spondent conducts a credit bus.iness only. No issue was raised by the applicant with any person at the responent's premises in relation to the matter. The applicant in his evidence stated that he wa, not asked at inteniew by the Queensland Basketball Inc panel why he considered his previous employer to be hostile. The question was put and answered as follows: - "Isn't it the case that a member of the interview panel asked you why you considered your previous employer to be hostile'? No. No, that didn't happen ut all." A letter dated 2 December 1996 from the applicant's solicitors, Russell and Company to the Queensland Chamber of Commerce and Industry Limited, Industrial Organi:,,atiun of Employers in respect to the terrnination of the applicant stated inter aiw:- "A member of the interview panel then asked Mr Cass why he considered his previous employer to be hostile. Mr Cass replied that there was a difficulty with this previous employer as he considered that the employer had been engaged in certain financial conduct which \1r Ca,~ considered to be illegal. This precise and accurate recolle<.:tion of the events may a~sist the members of the Board and their deliberations.". These arc conflicting statements One can only a~sume that lhc applicm1t' s solicitors acted on the applicant's instructions. Conclusions All 1he evidence received has been considered in arriving that this deci;;ion. The applicant's statement in relation to his resignation from the University of Queensland also raised questions under cross-examination. On the matter of the illegal financial transactions hy the respondent, am satisfied that the story in relation to the respondent was concocted by the applicant to provide justification for leaving the respondent's employment I prefer the evidence of the respondent's witnesses and find that there is no substance to these allegations. In fact, the applicant was terminated, he did not resign. Of interest but not particular relevance was that illegal transactions was one of the reasons given for leaving the University of Queensland. The applicant was dismissed by SG on the basis of serious and wilful misconduct in that he lied to his employer. He was given a chance to subsequently admit to the lie but instead of so admitting was prepared to allow 2 other employees to be dismisse.<1. I did not, throughout the conduct of the case generally, find the evidence of the applicant, in areas in which there was conflict between his evidence and the evidence of other witnesses, to be at all credible. I unhesitatingly prefer the evidence of Walker and Frederick over the evidence of the applicant. In my view where an employee at the level of ',tanager or General Manager is untruthful to his employer such unuuthfulness constitutes serious and wilful misconduct and justifies instant dismissal. It is a breach of trust m~ces,;aiJ and critical at that kvel of position. Much was said of the other matters which may have played on SG's mind in deciding to terminate the applicant to which the appiicant was not given a reasonable chance to respond at time of tcnuination. Clearly, whilst SG had the right to summarily dismiss for gross misconduct, he had the option. had the applicant been an exemplary employee, to waive this right and perhaps issue a w,tming and allow the applicant to continue in employment. On the evidence given the applicant was not an exemplary employee. He had caused friction m areas both internally and externally. He did nut meet the respondent"s expectations. In the circumstances, it is unden;tandab\e that SG exercised his right to terminate. The Conunission can find no miti1.?:atinll circumstances which would justify interfering with the respondent's-dcci;ion to summarily dismiss the applicant The respondent had a valid reason to dismiss The applicant was given the opportunity to respi•nd to allegations concerning a statement he made about Mr Tottle He denied making the statement. The respondent accepted the statements ot his 2 sales executives over that of the applicant (a, doe;. the Commission). The respondent then dismissed the applicant for what amounted to gross misconduct. The Commission, in the circumstances. does not find the dismissal to be harsh, unjust or unreasonable. The application is dismissed. Order accordingly. B. J. NUTfER, Commissioner. Appearan,·e.s :- Mr G Ma11in (instructed by Russell and Company) for the applicant. Mr J.E. Murdoch (instructed by N .R. Harbi, Solicitor) for the respondent. Operative Date: N/ A Decision Reinstatement Relea-;ed: 17 January l 997 -- 2 of 2 --