INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2189 of 1995
B E T W E E N :
GERALD COOKE
Applicant
AND
THE ROYAL MELBOURNE HOSPITAL
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 2 August 1995
REASONS FOR JUDGMENT
The Applicant, a security officer, seeks reinstatement by and compensation from his former employer, the Respondent, alleging unlawful termination of his employment on 27 February 1995. On that date, he submitted a handwritten resignation (Exhibit A3) during a meeting with the Respondent’s management. He contends that this was not a voluntary resignation but one proffered and accepted in circumstances where he was faced with no option other than to resign or be dismissed.
The Respondent defended the proceeding on a number of bases. The first is that the application made to the Court on 20 March 1995 was 7 days outside the period provided for in s.170EA(3)(a) of the Industrial Relations Act 1988 (the Act). The Applicant contends that written notice of termination, if any, was not received. He did, however, receive on 10 March 1995 a certificate of service from his employer dated 6 March 1995. I was referred to a number of decisions including that of Keely J. in Pam Coker-Godson v National Dairies Limited 57 IR 186 concerning the providing of an extension of time. However, I have no difficulty in finding on the facts of this case that the date of receipt of the certificate of service, if there was a termination of employment in the sense required by the Act, is the first date from which the time for making an application could be calculated. The application was filed on 20 March 1995 and, accordingly, there is no necessity to consider or make any order extending the time for the making of the application pursuant to s.170EA(3)(b).
The second and primary submission made by the Respondent is that the Applicant freely resigned on 27 February 1995 and, in the circumstances, such resignation should not be construed as a constructive dismissal. Alternatively, if the acts of the Respondent amount to a constructive dismissal, the valid reason for terminating the Applicant’s employment was serious and wilful misconduct and the Applicant was dismissed in accordance with the provisions of the applicable Health & Allied Services Award providing for instant dismissal for serious and wilful misconduct.
There was a further dispute as to the amount the Applicant was paid following the cessation of his employment on 27 February 1995. The Applicant seemed to think he received some 4 weeks’ pay, most or some of which represented earnings to the end of the pay period worked. On the other hand, the Respondent and the Applicant’s witness, Paul Anstis (Anstis), the union organiser, who represented the Applicant at two meetings with the Respondent’s management, were of the view that the Applicant received pay to the end of his pay period together with at least 5 weeks’ additional compensation paid to him as part of an arrangement whereby he agreed to resign. By referring to Exhibit A4 and the evidence of the Respondent and Anstis, I am satisfied that the sum paid was as alleged by the Respondent.
Background
The Applicant is 62 years of age, having spent some 18 years as a security officer; the last 5 to 6 years of which were spent at the Respondent hospital. As at February 1995, the Applicant was in receipt of a sum of $31,080.40 per annum for shift work performed between 7 am and 3 pm. This shift work sometimes involved weekend work with the same daily shift hours.
The hospital’s security office operates a system for collecting, recording and storing patient valuables in a safe. The valuables can include personal items such as jewellery and wallets and cash. Exhibit R1 sets out the Respondent’s procedures for dealing with patients valuables. It was common ground that the procedures were varied from approximately September 1994 when, after the loss of a sum of $250 cash, the hospital’s auditor recommended that cash received from patients not be stored in individual envelopes but that it be put into a cash box stored in the safe to be deposited with the chief cashier each day during week days. The cashiers office is open between 9 am and 5 pm on week days only.
The safe contained two cash boxes, one for in-going patient moneys and, another containing a float regularly topped up to $2,000 from which patients were returned their cash on their discharge. The safe also contained plastic buckets marked “A” to “Z” in which patient non cash valuables were stored after being placed in envelopes marked with the patient’s name and a receipt number.
When valuables were brought to the security office, they were receipted and a copy given to the person depositing the valuables for presentation on collection of the valuables. Further copies were kept as part of the hospital records (pink slips). There were ledger books in which the security officers were required to record the receipt of the valuables and receipt numbers (Exhibits R2 and R8). A cash book was also kept which recorded the cash coming in and the cash paid out (Exhibit R3).
On any given day or shift, a security officer could accumulate cash receipts and deposit them with the cashier who receipted the ledger book by stamping and initialling the entry. The cashier would then reimburse the security officer with a sum to add to the float cash tin to bring that balance back up to the float ceiling of $2,000.
After the loss of the $250 in September 1994, it was agreed that there was some lingering suspicion amongst the security officers as to whom might be responsible for this loss. The theft of cash and equipment from the hospital’s private consulting rooms allegedly committed during the evenings led the Applicant to the view that he did not trust security officer Stanley Roach (Roach) and security officer Steven Tsakonas (Tsakonas), both of whom worked night shift and had keys to access those areas, otherwise manned during office hours. The Applicant’s suspicions were not shared by the Respondent. Phillipa Katherine Watt (Watt), the Assistant Manager of the Respondent’s environmental services unit and the person responsible for the security staff from August 1994 was the person to whom the Applicant was directly answerable. She and Janet Mary Donohue (Donohue), then the Respondent’s Employment Relations officer, told the Court that the Respondent had not been able to ascertain the identity of the person or persons responsible for any of the thefts going back to September 1994, despite investigations conducted by the Respondent’s security consultant, Richard Murray.
Contrary to the Applicant’s allegation that he was on annual leave when the $250 sum went missing, Watt and Donohue both pointed out that the money had gone missing on a weekend when the Applicant had been on shift and before he was on leave. He was not interviewed concerning this theft because he was on leave. Because there were a number of officers on shift at the hospital when the money went missing the hospital was unable to determine who was responsible. So far as the private consulting room losses were concerned, again, contrary to the Applicant’s assertions, there were many other hospital staff with master keys to the areas concerned and some of the losses occurred over weekends, not only during night shift.
By December 1994, Watt and Donohue had cause to counsel the Applicant concerning his handling of patient valuables. This counselling was done in the presence of a union shop steward and arose because it came to the Respondent’s attention that when valuables were handed in as lost property, the Applicant was not properly recording the property and the identity of the persons collecting it. Both in evidence-in-chief and in cross-examination, the Applicant denied any previous counselling or warnings during the course of his employment. Instead, he asserted that at all times until the incident on 17 February 1995 he had an “unblemished” employment record. Given the unqualified assertions made by him, I was very surprised to hear the evidence of the counselling session touching upon the Applicant’s proper compliance with hospital procedures in the handling of patient valuables.
Whilst it is very troubling that a man of 62 years of age has been confronted with such a sudden and devastating end to his career as a security officer, the evidence very strongly points to an intentional and wilful disregard of hospital procedures in place to safeguard patient valuables. This is in spite of counselling some months earlier on the Applicant’s failure to comply with known and understood procedures. It was not suggested for one moment that the Applicant was in any doubt as to the procedures required to be followed even where those procedures were not reduced to writing. On the whole, the Applicant’s evidence suffered from a number of inconsistencies and improbabilities which led me to the conclusion that the evidence of the Respondent’s witnesses where it contradicted the Applicant should be preferred.
Friday, 17 February 1995 - The sum of $140
On the abovementioned date the Applicant worked the 7 am to 3 pm shift, having returned that day from 10 days sick leave after a hernia operation. The Applicant alleges that, on that date, he was still taking pain killing medication as a result of the operation. In accordance with the Respondent’s procedures, the Applicant attended the cashier’s office to pay in cash and, further obtain from the cashier a sum of money to top up the float to $2,000. It is alleged by the Applicant that, when he returned to the security office with the float money obtained from the cashier, he counted that money and formed the view that the cashier had given him $140 too much. Rather than return to the cashier’s office, he took the money, placed it in an envelope marked “Mel Cooke - private don’t touch” and placed it in the cash box in the safe. His alleged intention was to speak to the cashier when he returned for his shift on Tuesday, 21 February 1995. This delay was because the cashier’s office did not open on the weekend and the Applicant had a rostered day off on Monday, 20 February 1995.
Exhibit R2 shows that the sum of $1205 was collected by the Applicant from patients on 17 February 1995 and receipted by the cashier. Exhibit R3 shows, however, that instead of recording the sum collected and receipted by the cashier as $1205 in the “Cash In” column, the Applicant recorded a sum for that date of $1065 being $140 less than the sum actually received and receipted by the cashier. The short fall was further recorded by the Applicant in the column headed “Balance” by showing the balance of the float at the end of the Applicant’s shift as $1860, not the $2000 it should have been after his visit to the cashier.
The Applicant’s counsel, Mr Kenyon, described the record made by the Applicant as a transpositional error and one brought about or contributed to by the taking of pain-killing medication on that occasion. The Applicant worked day shift on both Saturday, 18 and Sunday, 19 February and, although he came in to the security office on the Monday in response to a query about another sum of missing cash, it was not until Tuesday, 21 February 1995, after a query had been raised about the $140 short fall that he paid in (see Exhibit R3) the sum of $140 and recorded it as a “cash” item in the appropriate ledger.
Bryan Clement Derrick (Derrick), is a part-time security officer employed by the Respondent since January 1995. Otherwise, he is a self-employed credit consultant. On Monday, 20 February 1995, Derrick worked the 3 pm to 11 pm shift in the security officer. In the course of his duties, he attempted to balance the float and realised that there was a short fall of $140. By cross-checking the “cash in” column with the cashier’s reimbursement on 17 February 1995, he located the discrepancy in the books and recorded this in his security report. It was agreed that one of the duties of the security officers was to prepare a security report for their shift and this loose sheet was left in a security book in the security office at the end of the shift to be photocopied on the following working day and given to Watt.
The shifts of the security officers appear to overlap on occasions. Although Derrick worked until 11 pm, Roach came on before the end of Derrick’s shift on 20 February 1995 and worked the shift from 9 pm to 7 am the next morning on 21 February.
Derrick and Roach agreed that, when Roach started his shift, Derrick asked him “to check everything to see if I had made an error and he (Roach) agreed there was a discrepancy.” It was Derrick’s evidence that, once he located the discrepancy, he checked the safe to see if the money had been “misplaced”. This involved him in looking in the cash box tins and “a lot of the areas of the patient valuables” to see if there was another envelope. When inspecting the cash tins, Derrick observed what he referred to as two “old” envelopes which he held to the light to check for the cash, however, he denied the existence of any third envelope in the cash tin marked and containing $140. Roach gave evidence that he only searched the cash tins and found the two envelopes normally there.
Roach alleged that, when he finished his shift on 21 February, Derrick’s report was still in the security officer’s book. However, he found Derrick’s report difficult to follow and, because of this, he took it upon himself to leave a handwritten note under Watts’ office door (see Exhibit R5) which said:
“Phillipa,
In the black cash ledger book a cash in entry (17.2.95) of $1065.00 gives a balance of $1860.00 (not $2000.00) however, in the red ledger book (signed by the accountant) the cash in figure is $1205.00. This leaves a deficit of $140.00 that does not appear anywhere. Bryan Derrick found the above Monday afternoon and was putting it in his report (it was a bit ‘double-dutch’). I thought this was a bit clearer.
Regards
Stan R.”
On 21 February 1995 the Applicant commenced the day shift at 7am. It was agreed that on that morning at approximately 8 am the Applicant rang Derrick at home. The Applicant alleges that he made the call because he noticed that Derrick’s report was missing and advised Derrick that he should do this report otherwise he would get into “serious trouble”. He further alleges that Derrick’s response was “Yeah no worries mate”. The Applicant claims that Derrick also said “you marked $140 short in the cash book” to which the Applicant replied “Don’t worry its there”.
Derrick’s evidence is that the purpose of the call was in fact the Applicant’s request to Derrick that he re-write his security report because his comments about the $140 discrepancy “could get me (the Applicant) into trouble”. Derrick also recalled the Applicant telling him that he (the Applicant) would “owe you one”. Derrick claims he responded by saying “I’ll see about that” and soon after the call he rang Watt and left a message for her.
Eventually he and Watt spoke to each other on that morning with Derrick first asking her to check for his report and, on being told it was not there, then explaining to Watt what had occurred in the telephone conversation with the Applicant. Watt confirms that as a result of Derrick’s initial telephone call she asked the Applicant for the security officer’s reports. He brought these to her office. She noted there was one missing and asked the Applicant to “double check to see if it was somewhere else”. According to Watt the Applicant went to do this and reported to her that he could not find the missing report. This led her to telephone Derrick who gave her an explanation of what he said occurred both with regard to the $140 discrepancy and the telephone call from the Applicant to him that morning. At no stage was it suggested that the Applicant in the initial discussions with Watt told her about his telephone conversation with Derrick or suggested to her that the report had not been made.
Apart from the other events which took place during the Applicant’s weekend shift on 19 February 1995, I found the explanation for the discrepancy very difficult to understand. The Applicant thought he had been given too much and instead of returning the money immediately to the cashier he ignored the procedure which requires a security officer not to put cash in envelopes so that it can be accounted for and placed it in a marked envelope, which envelope at least 2 other people were unable to locate at the relevant time. Although he attended the hospital on 20 February 1995 whilst off duty and in relation to another query about patient cash funds, he failed to return the monies to the cashier until 21 February, presumably some time after his discussions with Derrick. If he had excess cash I would have expected him, in setting aside the $140 excess to say that he recorded a float of $2,000 as well as a reimbursement from the cashier of no less than $1,205. Rather than do this he recorded a shortfall of $140 so that the cash float was shown as $1,860 and by subtraction the reimbursement was recorded by him as $1,065. In view of the other evidence I find his explanation improbable.
Because the $140 was not discovered in the safe in the hospital it was concluded that the Applicant took the sum with him. There was no evidence called to suggest that the Applicant intended to permanently deprive the Respondent of this sum; rather the hospital’s case was that this conduct was a very serious breach of procedures and further the attempt to, as the hospital put it “influence” another security officer was also viewed as serious misconduct.
19 February 1995 - The sum of $892.65
In the course of his weekend shift on 18 February 1995 the Applicant received patient cash totalling $892.65 (see Exhibit R8) and recorded the receipt of same in the patient ledger. However the sum of cash and the pink slips forming part of the hospital’s record for these transactions were not left by the Applicant in the cash-in tin when he finished his shift.
The Applicant alleged that he was concerned because he “knew” that Roach and Tsakonas would follow his shift and he believed that the money was not safe in their hands. This is not a belief shared by the hospital then or now, nor is it substantiated by any evidence of wrongdoing on the part of these two security officers. In any event, the Applicant took it upon himself to conceal the money allegedly placing it in an envelope marked “Mel Cook private don’t touch” and putting that envelope into one of the plastic boxes for patient valuables in the safe marked “C”. If it had been possible to bank the money in the next shift according to the Applicant he would have followed the known and accepted procedure of leaving the cash in the appropriate cash box. It was the Applicant’s allegation that he had hidden money in the safe in the same way for the same reasons on prior occasions.
Watt confirmed evidence from the Applicant that he had previously approached her in about December 1994 suggesting that some trap be laid for rogue security officers. The Applicant told the Court that Watt told him to “mind my own business”. Watt denied such a blunt reply and I accept her denial. At around the time she was required to counsel the Applicant, she alleges she told him that the hospital’s security consultant was handling the matters relating to the thefts and instructed the Applicant not to lay traps as he may get into trouble himself. Watt was unable to recall any occasion from August 1994 onwards when money had been missing from the safe because the Applicant had hidden the money in the safe.
Roach worked the shift on Sunday night from 9 pm to 7 am on Monday 20 February 1995. Not surprisingly, when he checked the cash tin in the course of his shift he noted that, although the ledger showed a sum of $892.65 received on 18 February 1995, there was no cash to cover this sum and no stamp to show that the money had been banked. In fact Exhibit R8 shows that the monies were eventually stamped and receipted on 20 February 1995 at 12.20 pm. Roach looked in the tins but not the other areas of the safe because he knew of no reason why the monies should be placed elsewhere. He prepared a security report on 19 February 1995 recording his observations and this report was filed in the security book at the end of his shift in accordance with the accepted procedure (see Exhibit R6).
At the changeover of the Monday morning shift at 7 am Tsakonas was told by Roach that he could not find the money in the cash tin and had prepared a report to this effect. This led Tsakonas to check both tins, the two envelopes in the cash tin and “down the bottom of the safe and all around the safe area”. Tsakonas told the Court that he conducted a thorough search and when he was not able to find the money went to see Denise Watkins the supervisor who asked him to check with the cashier to see if the money had been placed in the night safe. On querying this with the cashier it is alleged that the cashier, who was not called to give evidence by either party, said “Mel may have hidden it” after confirming that the cashier had not received the money. Tsakonas made a further check of the safe because of the cashier’s comments and was eventually instructed by Watkins to telephone the Applicant at home. In searching the safe it was Tsakonas’ evidence in response to cross examination that he looked at every envelope in the plastic buckets in the safe, which had patient names on them and took the envelopes out and checked the boxes in the safe as well as the tins. He also alleged that another person, whom he did not identify in his evidence, checked the safe. In her evidence Watt recalled being told that Tsakonas and Watkins searched the safe and the office and its contents.
In response to Tsakonas’ telephone query as to where the money was, Tsakonas alleges that the Applicant told him he had it and he was coming over to the hospital with it.
The Applicant denies the above statement or words to that effect. He alleges that he told Tsakonas “don’t worry I will come to the city and sort it out”. According to the Applicant he told Tsakonas the money was there but he did not tell him where it was.
Why the Applicant did not tell Tsakonas where the money was located if in fact it was in the safe is difficult to understand if one considers the Applicant’s next contention that he went into the security office and, whilst Tsakonas was busy with a patient at the desk, the Applicant removed the envelope from the safe, tapped Tsakonas on the shoulder and said “here Steve I took the money from under “C””.
Even if the Applicant harboured genuine suspicions about Tsakonas’ integrity his explanation for the steps taken by him lacks any logic. Ultimately Tsakonas had the cash and banked it by 12.20 pm. He had the cash because the Applicant gave it to him without the Applicant taking any steps to bank it himself.
Tsakonas’ version of events following the telephone call is in stark contrast to that offered by the Applicant. He agreed that he was seated at the desk with his back to the safe dealing with a patient when the Applicant entered the security office to the left of the desk carrying a large manilla envelope. As the Applicant moved into the room and turned to his left to face the partially open safe door Tsakonas alleges he turned his swivel chair observing the Applicant from the time he entered the room. When the Applicant, whose body was by then side on to Tsakonas went to the safe, Tsakonas said to him “don’t put it in there they know because they have checked everywhere”. The envelope contained $892.65 and the missing hospital pink slips.
The Investigations
Watt did not return to duty until Tuesday 21 February when she found Roach’s note (Exhibit R5) under her door concerning the $140 shortfall. She then spoke to Watkins and, as a result, became aware of the events of the previous day and the missing sum of $892.65. She took the steps already referred to in conversing with Derrick and the Applicant in an effort to locate the missing security report and, after her second discussion with Derrick, contacted Donohue.
The hospital treated both matters as serious. Watt contacted the Applicant arranging a meeting at 2.30 pm on 21 February between the Applicant, Watt and Donohue. The Applicant was advised to attend the meeting with a Shop Steward and did attend with Roger Beatty, who was not called to give evidence.
In summary both Watt and Donohue allege that at the preliminary meeting, lasting some 30 to 45 minutes, the Applicant was informed that the Respondent treated these matters very seriously. He was asked to explain both the $140 shortfall and the missing sum of $892.65. The Applicant gave his explanations including the explanation of his discussion with Tsakonas and his attendance at the security office on the Monday morning. After providing his explanation the Applicant was informed that the safe had been searched by both Tsakonas and Watkins and they had not located the money. Watt recalled that Roger Beatty was given an opportunity to speak to the Applicant and asked if anything further was to be added, after which the Applicant was informed that the hospital deemed the matters to be serious and that it needed to further investigate both incidents. The Applicant was informed that he was stood down on full pay pending that investigation. Donohue recalled the Applicant saying to them that the other security officers on duty over the weekend would confirm that there had been a third envelope in the cash tin containing the $140 sum. Donohue also agreed that after the first meeting the Applicant took her to the security office and showed her a used envelope marked “Mel Cooke - private don’t touch”.
Of the 5 security officers on duty over the relevant period two were adamant that there was no extra envelope in the cash tin, two could not say that they had checked for it and, lastly, the Applicant said it was there.
On the evidence I am satisfied that it is more likely than not that the $140 sum in the envelope was not in the safe and had been removed by the Applicant even though he may have had no intention of keeping the money.
In his evidence-in-chief the Applicant denied that on being questioned at the first interview he understood the meeting to be part of an investigation into these two matters. As with each of the subsequent meetings between the Applicant and the hospital management concerning these incidents the Applicant tended to minimise the extent of the discussion and the information conveyed to him as well as the opportunities given to him to explain his conduct and defend the allegations made particularly by Derrick and Tsakonas.
Watt and Donohue followed the first meeting by interviewing on 22 and 23 February and obtaining reports on what had occurred from Derrick, Roach and Tsakonas. They also spoke to two other security officers who were on shift between Friday and Tuesday to ask if they could recall seeing a third envelope in the cash tin.
A second meeting took place between the Applicant and his representative, his union organiser Anstis, Watt and Donohue. Because Anstis was not at the first meeting the women reiterated the background information and what had taken place at the first meeting. They produced and showed the ledger books and told the men that they had spoken to all the security staff on shift since the Friday as well as telling them what they had learnt from the security officers. Watt and Donohue both refer to what can be described as detailed discussions of the information and allegations made as well as a further opportunity given to the Applicant to explain and defend himself; not to mention giving him the opportunity to look at the ledger books. He and his representative availedthemselves of the opportunity to reiterate his version of events relying on the argument that the Applicant had been on medication on the Friday as a mitigating circumstance, further
arguing that his motives were entirely innocent and that he had a good record of long service.
At the conclusion of this meeting estimated to have lasted 45 to 60 minutes, Watt and Donohue informed the Applicant that they needed to consult further with senior management and confirmed that the Applicant was again stood down on full pay to the following Monday 27 February.
Although the Applicant alleged that the meeting was a brief one on 23 February and further that nothing was put to him at that meeting I am satisfied the evidence of Anstis, Watt and Donohue demonstrates to the contrary.
The principal point of divergence between Anstis’ evidence and that given by Watt and Donohue is that he does not recall seeing any of the written reports relied upon (see Exhibits R 4, 5, 6 and 7) whereas Donohue believes that they were at least shown the Derrick report (see Exhibit R 4). Otherwise, she recalled that they went through the contents of the other security officer’s statements and reports and outlined for the Applicant all the allegations and evidence obtained.
I am satisfied on this evidence that all material allegations were known to the Applicant by 23 February as well as the import of the statements made by the other security officers in response to the Applicant’s explanation of the events which occurred. In his typed statement made on 20 February 1995 Tsakonas referred to the cashier’s statement to him that him that “Mel may have hidden it”, meaning the $892.65. The cashier was not interviewed regarding this statement nor was he called to give evidence. Mr Kenyon adopted the view that somehow this omission amounted to a serious and fatal flaw in the investigative process. I was left with some concern as to how far an employer should go in order to conduct a reasonable investigation of the events which took place so as to act fairly and to carry out a proper enquiry? The answer to this question really must lie in the facts of each case. I am assisted in determining this matter by the observations of the Court contained in the decisions of Schaale v Hoechst Australia Ltd (1993) 47 IR 249, per Heerey J, at page 253 and Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233, per Wilcox CJ, at page 243. The impact of the Court’s observations in these cases is that an employer is not obliged to apply the skills and resources of a police investigation or any investigation conducted by lawyers in order to act with procedural fairness.
The Applicant’s defence in respect to the $892.65 sum was that he had hidden it from the fellow security officers he mistrusted. The fact that he alleged that he had done this previously is not substantiated and appears unlikely in circumstances where there was no evidence of other instances where money had gone missing only to be found to have been hidden by the Applicant. No doubt the cashier’s statement may be seen as corroborating the Applicant’s alleged past behaviour. Nevertheless such evidence does not alter the fact that the Applicant breached known hospital procedure in not storing the money in the cash box. Otherwise there is no suggestion that the cashier’s statement could shed any light on whether the money was hidden on the hospital premises or elsewhere; nor could it challenge the evidence of Derrick and Tsakonas. I am in these circumstances unable to conclude that the hospital was acting unreasonably in not interviewing persons other than those directly involved in the incidents.
The last meeting took place on Monday 27 February in the morning. It was attended by the Applicant and Anstis, Donohue, Watt and Ann Halloran the latter of whom did not give evidence.
There is a dispute between the participants as to the order in which events took place and this has some bearing on the Applicant’s allegation that he was constructively dismissed; rather than voluntarily resigning.
The hospital witnesses agree that up to 27 February they did not specifically tell the Applicant or his representative that they were considering terminating his employment. They did however on a number of occasions reiterate that the hospital viewed the events as being very serious matters. By 27 February they had been armed by the senior management with the authority to terminate the Applicant’s employment for serious and wilful misconduct. Such a measure is provided for in clause 29B of the Award and is separate to the disciplinary procedures and warnings otherwise required.
Watt and Donohue, in summary, recall again giving details of their investigation which by then had included discussions with security officers White, Andolovski and Watkins. They offered the Applicant a further opportunity to say more in his defence. Anstis repeated the matters he had outlined in the previous meeting following which both the Applicant and Anstis were asked to leave and wait outside. This was to allow the women to discuss what they proposed to do. Whilst they had already formed the view that they may have to terminate the Applicant’s employment they had not to that stage agreed to do this choosing to await the outcome of their further discussions with the Applicant and his representative. Because Anstis was also a union representative it was contended that he was invited to return to the meeting to ascertain if he had any further matters to add, to which query he responded by saying that the Applicant had acted honestly and wanted to avoid termination because of its effect on his reputation. Anstis then asked the management group if the hospital would consider a voluntary redundancy package, which package both Watt and Donohue recalled the Applicant expressing interest in late 1994 when such packages were then being considered by the Respondent for positions no longer required. Their evidence was that the Applicant’s expression of interest was not originally met because the position he worked in was not redundant. For the same reason it could not be met on 27 February; although they were also concerned not to send the wrong message to fellow employees by giving a voluntary redundancy package. Donohue recalls saying that the hospital could offer a few weeks pay but not the package because it could not do this without making the position redundant.
There is some difference between the evidence of Watt and Donohue as to how the subject of resignation arose. Watt recalls Anstis repeating that the Applicant wanted to keep his good record and asking them about the possibility of resignation. She recalls that they told Anstis that they would accept the Applicant’s resignation and Anstis went away and returned to discuss terms of settlement. On the other hand, Donohue believed that the question of resignation was first raised by Anstis when he raised the issue of a voluntary departure package, which, in her view, amounts to a voluntary resignation. However, she could not be sure whether Anstis specifically put the idea of resignation to them even though there was some discussion about clarifying the amount of pay for compensation he would receive if he resigned; other than the payment already due for time worked.
On his second return to the meeting Anstis provided management with the written resignation (see Exhibit A3 ) which they accepted agreeing to pay the Applicant to the end of the week on the Sunday together with an additional five weeks pay at the ordinary rate.
Anstis told the Court that he had not read his notes of the meeting however he recalled that after he and the Applicant were asked to leave and in his subsequent discussions with management, he was told that they intended to dismiss the Applicant for serious and wilful misconduct. This was the first time it had been stated at either of the meetings he had attended. The Applicant confirmed that it had not been mentioned to him at any time prior to him being advised by Anstis that this was to happen. It was also the first time “dismissal” was actually raised as distinct from disciplinary action.
Anstis believes that the Respondent raised resignation as an alternative to dismissal. Because of this he sought and obtained instructions from the Applicant to obtain a voluntary departure package. This was not accepted and Anstis asked “if he resigned what compensation would he get. They offered a number of weeks”, which Anstis recalled amounted to about six weeks pay. When he informed the Applicant of this offer the Applicant obtained a piece of paper and wrote his resignation subsequently delivered by Anstis to the management team and accepted by them.
Termination or Resignation
It is a well accepted proposition that for an employee to resign such resignation needs to be a voluntary one. In other words any duress or an option of resigning or being sacked is not really a voluntary resignation but is characterised as a constructive dismissal (see Achal v Electrolux Pty Ltd (1993) 50 IR 236, Weller v Transport Superannuation Board 4 VIR 353 and Re Michael Michael Bayley Trading Co. and New South Wales Representatives and Commercial Travellers Guild (1979) AR (NSW) 392).
I am inclined to the view on the evidence that it is more probable than not that when Anstis returned to the meeting at the request of those conducting it he was for the first time told that the Respondent was considering dismissal for serious and wilful misconduct and, as a result, he raised the question of a voluntary departure package and resignation with both the Applicant and the Respondent in order to soften the blow. If disciplinary procedures were only to be implemented there would have been no reason for the Applicant and Anstis to consider anything other than a return to work.
Accordingly the actions of the Respondent amounted to a constructive dismissal and the jurisdiction of the Court is invoked to determine, first whether there was a valid reason for termination and, secondly, if there was a valid reason, whether the termination in all the circumstances was harsh, unjust or unreasonable.
Suspension of Employee
Mr Kenyon also argued that there was no power in the relevant Award or the contract of employment for standing down or suspending this employee pending the investigation. This he submitted amounted to a repudiation of the contract of employment by the employer and was relevant to the question of whether the acts of the employer had initiated the termination.
This case is not one where it can be said that there was an unlawful suspension. Here the employer suspended or stood down the Applicant on full pay without prejudice to his entitlements pending the outcome of its enquiries. Commonsense suggests that the employer would be left in something of a “catch-22” situation if it instantly dismissed the Applicant without an enquiry, because there was no explicit provision to suspend or stand him down with pay and entitlements intact, and then was faced with a breach of the Act for failing to conduct a proper enquiry as well as afford procedural fairness to the Applicant before availing itself of its right to terminate for serious and wilful misconduct.
Valid Reason
I have generally accepted the Respondent’s evidence regarding the circumstances of the two incidents and the evidence of Derrick and Tsakonas as to what transpired between them and the Applicant.
The Applicant was employed in a position of responsibility requiring him to obey the Respondent’s procedures for safeguarding patients’ valuables and cash. The removal of the money from the employer’s premises, the intentional breaches of the Respondent’s procedures for recording and safeguarding that money, the attempt to cover up his conduct by asking Derrick to alter his security report and, further, by attempting to return the envelope containing $892.65 and the hospital pink slips to the safe after it had been found to have been missing are all serious breaches of his obligations under his contract of employment. Even if allowance is made for the alleged clerical error in recording the monies received from the cashier on 17 February, the Applicant’s subsequent behaviour was wilful in the sense that he deliberately sought to conceal the money and his actions.
Procedural Fairness
If the Respondent erred in its processes for terminating the Applicant it was in failing to tell the Applicant or his representative until the very last meeting that it was considering or intended to terminate the Applicant’s employment, rather than implement its disciplinary procedures. It is one thing to repeatedly assert that the employer treats the alleged conduct as a “very serious matter”. It is another to tell an employee that he faces dismissal and that this is the course the employer intends to take. Anstis told the Court and I have accepted his evidence that he was surprised when he was told at the last meeting that the Applicant would be dismissed for serious and wilful misconduct; rather than disciplined.
Accordingly, I find that there was, strictly speaking, a failure to comply with s.170DC(a) insofar as the Respondent did not make it clear to the Applicant that the Respondent was considering dismissal for serious and wilful misconduct.
Harsh, Unjust or Unreasonable
Viewed objectively, I am unable to say that in a position of responsibility where the Applicant was required to handle cash and patient valuables and, in this case, intentionally flouted the Respondent’s procedures for safeguarding these valuables, the termination was harsh, unjust or unreasonable. In saying this I have given consideration to, amongst other things, the Applicant’s five or six years service, the fact that he was previously counselled for failing to observe procedures in the handling of patient valuables and his evidence that he had “hidden” cash on other occasions because he held the unsubstantiated suspicion that his fellow security officers were engaged in misconduct. His past behaviour and the behaviour the subject of this proceeding suggest that he has a belief that his own “security” procedures are better than those devised by the hospital. Rather than express regret the Applicant at hearing pursued a line of reasoning which suggested that he best understood what procedures were appropriate and necessary for the securing of valuables. If the hospital did not follow his suggestions he imposed his own ad hoc procedures. Even if his actions were intrinsically well intentioned, his behaviour represented a serious risk to and undermined the proper management of the hospital’s security system.
Remedy
I have taken into consideration the abovementioned matters and have concluded that this is not a case where reinstatement is practicable.
Having found that there was a valid reason for terminating his employment; namely serious and wilful misconduct the Applicant’s claim falls under the exception to the notice provision in s.170DB(1). Notwithstanding its right to terminate without notice the hospital compensated the Applicant with five weeks pay in addition to his entitlements to the date of termination. Inasmuch as there was an irregularity in the process for terminating the Applicant I am satisfied that the compensation already paid by the Respondent to the Applicant is appropriate. This is because any security of employment the Applicant enjoyed was well and truly eroded by his serious and wilful misconduct and, but for the procedural irregularity, it is not likely that the Applicant’s employment would have continued beyond the five week period for which he has been paid. Accordingly I make no order for further compensation.
MINUTES OF ORDERS
THE COURT ORDERS:
1. That on 27 February 1995 the Applicant’s employment with the Respondent was terminated in contravention of s.170DC(a) of the
Industrial Relations Act 1988.
2. Otherwise the application insofar as it seeks reinstatement or
compensation is dismissed.
I certify that this and the preceding twenty eight (28) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated:
Solicitor for the Applicant: Maurice Blackburn & Co.
Counsel for the Applicant: Mr N Kenyon
Representative for the Respondent: Mr G Szlawski from
Victorian Hospital’s Industrial Association.
Date of hearing: 12 & 13 July 1995
Date of judgment: 2 August 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - SERIOUS AND WILFUL MISCONDUCT - RESIGNATION OR TERMINATION AT THE INITIATIVE OF THE RESPONDENT - REPUDIATION OF CONTRACT BY SUSPENSION OR STANDING DOWN OF EMPLOYEE - PROCEDURAL FAIRNESS - EXTENSION OF TIME FOR MAKING APPLICATION
Industrial Relations Act 1988 ss.170DB(1), 170 DC, 170EA(3)(a), 170EA(3)(b).
CASES:
Pam Coker-Godson v National Dairies Limited, (1994) 57 IR 186,
Keely J.
Schaale v Hoechst Australia Ltd (1993) 47 IR 249, Heerey J., 253
Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233
Achal v Electrolux Pty Ltd (1993) 50 IR 236
Weller v Transport Superannuation Board 4 VIR 353
Michael Bayley Trading Co. and New South Wales Representatives and Commercial Travellers Guild (1979) AR (NSW) 392
GERALD COOKE v THE ROYAL MELBOURNE HOSPITAL
No. VI 2106 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 2 August 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2106 of 1995
B E T W E E N :
GERALD COOKE
Applicant
AND
THE ROYAL MELBOURNE HOSPITAL
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane
THE COURT ORDERS:
1. That on 27 February 1995 the Applicant’s employment with the Respondent was terminated in contravention of s.170DC of the
Industrial Relations Act 1988.
2. Otherwise the application insofar as it seeks reinstatement or
compensation is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
