WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

INDUSTRIAL RELATIONS ACT, 1979

The Australian Builders' Labourers' Federated Union of Workers, Western Australian Branch

- and -

The Building Management Authority

(No. CR 100 of 1993)

COMMISSIONER G.L. FIELDING  18 June 1993

REASONS FOR DECISION

THE COMMISSIONER:  At all material times the Respondent was the manager of the project to build a police station and court house at Joondalup.  Some of the work there was done by the Respondent and some by sub-contractors.  Amongst the Respondent's workforce was Mr Scheil, who was employed as a labourer and as such entitled to be a member of the Applicant.

On or about 3 March last, Mr Scheil removed six bags of ceiling insulation material from the worksite during his lunch hour.  The bags were approximately six feet by two feet and contained enough material to insulate approximately 45 m2.  He took the bags to his house where they were later recovered that day by the police following an interview with Mr Scheil.  He was interviewed by the police at the workplace in the presence of Mr Mayes, the Respondent's Site Manager for the Joondalup project, during the course of which he is alleged to have admitted to having stolen the bags in question.  The following day Mr Scheil was interviewed by Mr Bowler, the Respondent's Manager of Employee Relations, in the presence of representatives of the Applicant and advised that the Respondent viewed his conduct with concern.  Later that day, Mr Scheil was summarily dismissed from his employment with the Respondent on the grounds of gross misconduct.

The Applicant now complains that Mr Scheil's dismissal was unfair and seeks his reinstatement in the employ of the Respondent.  The Applicant alleges that Mr Scheil was given permission to remove the bags in question by a sub-contractor, whose property he thought the bags were.  The Respondent, on the other hand, denies that Mr Scheil had such permission or, indeed, that he could reasonably believe that the sub-contractor was entitled to give him such permission.  Indeed, the Respondent asserts that Mr Scheil admitted to having stolen the goods which belonged to the Respondent.

Apart from the question as to whether or not Mr Scheil took the goods in question, believing that he had the right to do so, there is really no dispute about the facts giving rise to this matter.  The Applicant acknowledges that he took the goods in question.  The building from where he took the goods is next door to the Joondalup police station; the car in which he transported the bags is so small that it was not possible to hide the bags and he had to drive past fellow employees to take the goods home.  In such circumstances it is said on Mr Scheil's behalf that he must have been either a brazen thief or taken the bags in the belief that he had the authority to do so.  The Applicant submits that it is inconsistent with Mr Scheil's character to consider him to be a brazen thief.  He does not have a record of prior dishonesty and it is quite unrealistic to suspect that an employee knowing, as did Mr Scheil, that the penalty for theft of goods from the worksite was dismissal, would act in a way which would inevitably lead to his apprehension.  Indeed, it was because two of the bags were seen in the car by a supervisor that the matter came to the notice of Mr Mayes.

Having heard the evidence of Mr Mayes, which I accept as being reliable, I have not the slightest doubt that Mr Scheil admitted to the police that he stole the goods in question.  I accept the evidence of Mr Mayes that in answer to a question from the police asking how many bags he took Mr Scheil said he "stole" six bags.  Furthermore, I accept Mr Mayes evidence that Mr Scheil on at least two occasions said that he "stole" the bags.  Despite the efforts of Mr Keogh, as agent for the Applicant in these proceedings, to break down or otherwise undermine the evidence of Mr Mayes in this respect, his evidence was clear and unequivocal and I have not the slightest doubt that Mr Scheil admitted to stealing the goods as alleged.  Although Mr Scheil does not have a perfect command of the English language he appears to have a more than adequate command of it and I have no doubt, having heard and observed him during the course of these proceedings, that he understands the import of the word 'stole'.

In the circumstances it is difficult to see how the Respondent could be said to have acted unfairly.  It is trite to say that applications for relief against unfair dismissal are not to be seen as being an appeal by way of rehearing against the decision of the employer whereby the Commission can substitute its view of the facts for those of the employer.  Rather, the test is whether, in all the circumstances when looked at objectively, the decision was one which was fairly open to the employer.  In this instance, as I find, Mr Scheil admitted in the face of his supervisor to have acted dishonestly.  By his misconduct Mr Scheil not only breached the duty of fidelity he owed to the Respondent, he breached a clearly understood, basic tenant of his employment, that he was not to steal from his employer, and if he did it would be at the pain of instant dismissal.

In cases of this nature the decided authorities make it abundantly clear that it is not necessary that an employer establish, on the balance of probabilities, that an employee has committed the act of misconduct complained of rather that following a proper enquiry that there were "reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal" (see:  Bi-Lo Pty Ltd v. Hooper (1992) 59 SAIR 342; and see too:  C v. Quality Pacific Management Pty Ltd (1993) 73 WAIG 988, 997).  That formula is consistent with the concept of the unfair dismissal jurisdiction as is now well established by a long line of authority in this and other comparative jurisdictions (see for example:  Metals and Engineering Workers' Union - Western Australia v. Newcrest Mining Ltd (1993) 73 WAIG 969).  Were it necessary for an employer to establish to the Commission's satisfaction, on the balance of probabilities, that the alleged misconduct occurred, it would in effect put the Commission through its evaluation of demeanour of the witnesses in the position of being the putative manager (see:  Trust Houses Forte Leisure Ltd v. Aquilar (1976) IRLR 251).  It is not for the Commission to substitute its opinion for that of the Respondent but to examine whether, on the evidence, the Respondent's actions, looked at objectively, were unfair in an industrial sense.

On this occasion there was every reason for the Respondent to believe Mr Scheil was guilty of misconduct; Mr Scheil admitted his guilt.  Furthermore, it was not as if there was no reason for the Respondent to accept the admission as being justified and genuine.

There now seems to be little or no question but that the bags of insulation were the property of the Respondent, although Mr Scheil says that he was not aware of that at the time he took them.  Instead Mr Scheil says that he thought the bags were the property of the sub-contractor whose leading hand he says gave him permission to take the bags.  Having heard the evidence of the witnesses in these proceedings I have great difficulty in accepting that Mr Scheil did in fact believe the bags to be the property of the sub-contractor or, indeed, that the leading hand gave him permission to take them.  I cannot say that I found the testimony of Mr Scheil very convincing in this respect.

The evidence is that the bags, when recovered from Mr Scheil's house, were still sealed as new and contained a label, which despite the protestations of some of the Applicant's witnesses, clearly bears the description "BLDG/MAN.AUTHOR."  I have no doubt that that is a reference to the Building Management Authority and that persons in Mr Scheil's position would have appreciated that.  One of the Applicant's witnesses, Mr Everett, suggested that, although he saw a label in the bags, it was different to the label said by the Respondent to have been in the bags.  Interestingly, Mr Scheil did not say that was the case.  In any event I accept the evidence of Mr Mayes that the bags in question contained such a label.  Furthermore, I accept the evidence of Mr Mayes that the material was being installed by employees of the Respondent and not by sub-contractors, who were installing insulation of a different colour in a different place from where the bags were taken.  Although Mr Mayes evidence is not consistent in this respect with the evidence of the other witnesses, in my assessment it is a case of quality overriding quantity.  Not only was Mr Mayes the Site Manager and therefore presumably the best informed of this matter, the evidence of the other witnesses was somewhat inconsistent, if not contradictory, and contains significant elements of surmise.  Two of the witnesses, Messrs King and D'Souza, admitted that they did not have any first hand knowledge of what type of insulation the sub-contractors were installing on the site and the other, Mr Everett, was less than convincing in his testimony regarding the colours of the insulation which he said the sub-contractors were using.  Moreover, I accept Mr Mayes evidence that the police put to Mr Scheil that he had "BMA property" without permission and that Mr Scheil replied by saying "yes".  The evidence does not suggest that he at any time mentioned that he thought the property belonged to someone else as might have been expected if that was indeed the case.  Moreover, I accept the evidence of Mr Mayes that when asked by the police if the bags were off-cuts Mr Scheil said words to the effect "no they belong to the BMA".

Furthermore, I am far from satisfied, even on balance, that Mr Scheil was given permission to take the bags in question by the sub-contractor's leading hand.  Rather, I accept the position to be, as Mr Mayes testified was the case, that the leading hand told the police in Mr Scheil's presence that Mr Scheil asked for permission to take "off-cuts", as apparently is the usual practice, but was told by the leading hand that he had already promised them to someone else.  I have not the slightest doubt that Mr Mayes evidence accurately records what the leading hand said in this respect to the police in the presence of Mr Scheil.  Indeed, Mr Scheil does not question Mr Mayes' evidence in this regard, but alleges that the leading hand changed his story when he came before the police.  Although for reasons best known to the Respondent, the leading hand was not called to give evidence and I am far from convinced, despite the evidence of Mr Scheil, that the leading hand did in fact change his story.  Again there was no suggestion that when faced with this story Mr Scheil protested to the police or indeed to the Respondent's industrial officer at the inquiry which followed, that Mr Scheil had changed his story and was fabricating the truth.  The evidence on behalf of the Applicant was that permission was sometimes given by sub-contractors to take material that they had brought on to the site, if, as a job neared its end it appeared likely that the material would be left over.  Here the evidence is that the job for which the insulation was to be used was not near its end.  Moreover, the material was not brought on to site by the sub-contractor but by the Respondent.  Furthermore, it seems highly unlikely that the sub-contractor would give someone permission to remove material which, as I find, was marked as the property of the Respondent and which I find was not material being installed by the sub-contractor.  Furthermore, I accept the evidence of Mr Bowler that when Mr Scheil claimed that he had permission to take the goods, Mr Bowler put to him that they belonged to the Respondent, Mr Scheil did not offer a reply.  In this respect I do not accept the evidence of Mr Giffard, an Industrial Officer for the Applicant, who accompanied Mr Scheil to the inquiry conducted by Mr Bowler that Mr Scheil replied that he did not know it was the Respondent's property.  Rather, I accept the position to be as Mr Bowler says that Mr Scheil said nothing and that Mr Giffard came to his aid by denying he unlawfully took the goods.  Indeed, Mr Giffard's evidence is consistent with Mr Bowler's in that they both say that Mr Giffard did most of the talking for Mr Scheil at that meeting.

On learning of Mr Scheil's admission the Respondent, as previously mentioned, convened a meeting to discuss the matter with Mr Scheil and representatives of the Applicant.  He was given every opportunity to put his case and in my view there is no scope to criticise the procedures adopted by the Respondent which led to the termination of Mr Scheil's employment.  The Applicant contends that the Respondent should have discussed the matter with Mr Scheil before calling in the police.  Having learnt that some of its property had been removed, there is no obvious reason why that should be so.  In any event, the police appear to have become involved in the matter more by accident than by design of the Respondent.

For the forgoing reasons, I am satisfied that the Respondent had good reason to reach the conclusion it did.  In the circumstances, I am far from convinced that the Respondent acted unfairly in terminating Mr Scheil's employment.

Appearances:  Mr M. Keogh on behalf of the Applicant

              Mr J. Lange on behalf of the Respondent