Miroslav Vujica v TNT Australia Pty Ltd (U2014/4352) [2014] FWC 4790, Sams, DP

  • Applicant sacked for serious misconduct:
  • Working for another employer while certified medically unfit
  • Sending threatening letter to employer
  • Dishonesty during investigation
  • Application dismissed
  • Costs against applicant mooted

Note: For a quick peek at what was to follow, very early in the decision, the DP stated (bit of a “spoiler” really) what he thought of the application.  For those of us who are interested in such matters, the DP whilst being very unkind to our friend the Applicant, made a number of references to precedents which may now be overshadowed by the recent High Court decision, but fundamental ones that would remain on-foot.

In this matter the applicant was dismissed from his employment with TNT for serious misconduct. The applicant was employed as a forklift driver at TNT’s depot at Enfield, New South Wales. He has had ten years of service with the respondent. The termination of employment letter identified two allegations, both of which, according to the respondent, demonstrated the applicant’s dishonesty.

The letter elaborated as follows:

  1. A letter sent by you to Susan Davies of TNT which you claim had not been sent by you; and
  2. Work performed by you at Toll during your alleged incapacity for work with TNT.

 “At this juncture, I do not understand there to be any serious challenge to the proposition that if either of these allegations is found to be proven, the respondent would be entirely justified in dismissing the applicant and unless there were overwhelming mitigating factors, the Commission would be highly unlikely to intervene to disturb or overturn that decision.

Two other issues canvassed were:

  • His continued refusal to wear a forklift seatbelt:

“I saw no legal compulsion and no logical reason to accept a safety device which endangers my health and at the same time – the safety of others. At the same time, many other OHS issues arise at the workplace and are simply ignored.”

  • His unsuccessful claim before the Local Court in December 2013 for alleged unpaid overtime (and subsequent costs awarded against him)..

The applicant had been issued with a number of warnings since 2010. However, the respondent put that these warnings need not have been considered, given the seriousness of the allegations earlier mentioned. Unsurprisingly, the applicant strongly contested the allegations and offered a number of explanations for his conduct.

The issue, then, is whether the “out of hours” conduct involves a breach of an express or implied term of the contract of employment. Ross VP then considered the relevant implied terms:

An employee’s implied duty of fidelity and good faith is particularly relevant here. One of the most concise and authoritative statements of what is generally encompassed by the duty of fidelity and good faith is to be found in Blyth Chemicals v Bushnells. In that case their Honours Dixon and McTiernan JJ said:

Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty. Or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal … But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises.

 

In the same case their Honours Starke and Evatt JJ note:

The mere apprehension that an employee will act in a manner incompatible with the due and faithful performance of his duty affords no ground for dismissing him; he must be guilty of some conduct in itself incompatible with his duty and the confidential relation between himself and his employer.

The obligations imposed by the common law duty of fidelity and good faith operate to prohibit acts outside of the employment which are inconsistent with the continuation of the employment relationship. But as Spender AJ observed in Cementaid (NSW) Pty Ltd v Chambers, ‘an actual repugnance between the employee’s acts and his relationship with his employer must be found’.

Even allowing for the applicant’s self-representation, his cross examination of the respondent’s witnesses was hopeless, misdirected and irrelevant. He focused on issues that had no bearing on what he was required to test.

I find the applicant’s evidence to be riddled with nonsensical and irrelevant propositions, utterly ridiculous and implausible explanations and, regrettably, downright lies. There was not a skerrick of evidence of any conspiracy by TNT against him. This is a figment of a very colourful imagination. I wonder whether he actually believes his own nonsense or whether it is some sort of game for him to respond to allegations against him by making unsubstantiated allegations of his own. Either way, it is little wonder that the respondent acted in the manner it did to dismiss him. (My emphasis).

The DP found the applicant to be guilty of serious and wilful misconduct in that he:

(a) lied to the respondent as to the authorship of the letter to Ms Davies;

(b) defrauded the respondent by working for another employer and claiming to be certified unfit for work;

(c) lied to the respondent that he had not worked for Toll at any time, but particularly when certified unfit for duty.

The applicant’s serious and wilful misconduct was a valid reason for his dismissal.

In addition, I find that the applicant’s failure to cooperate with the respondent’s investigation, and his deliberate dishonesty during the investigation, is an added basis for a finding of a valid reason for dismissal.

In this respect, I refer to a decision of the Full Bench of the AIRC in Telstra Corporation Ltd v Streeter [2008] AIRCFB 15. The majority said at paras [14]-[15] and [20]:

 Ms Streeter was unco-operative and dishonest with Telstra during the investigation. In response to questions asked of her, she denied activities she knew had occurred or stated that she had “no comment”. She also claimed a lack of memory with respect to certain activities. As Senior Deputy President Hamberger points out, Ms Streeter concedes she lied to Telstra during the investigation.

 Ms Streeter’s dishonesty would have been of little relevance to Telstra if her activities had had no effect at her work and were not likely to have any effect at her work. However, it appeared her activities had caused difficulties at her work and were likely to cause difficulties at her work in the future. In the circumstances, we think Telstra’s questions of Ms Streeter during its investigation were reasonable. Ms Streeter needed to be honest with Telstra about her activities, notwithstanding their inherently personal nature, so that Telstra could determine and take appropriate action to deal with the difficulties.

Any application for costs (as foreshadowed) should be made in accordance with the relevant provisions of the Act. (My emphasis).

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

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