Adrian Tainsh v Toyota Motor Corporation Australia Limited T/A Toyota.  FWC 4192 (U2016/2952). Harper-Greewell, C. 16 July 2018.
Toyota, acting on an anonymous tip-off via its whistleblower’s hotline, that one of its General Forepersons (Mr Tainsh) was providing favours to his girlfriend and her friend(s) in the form of renewal of contracts, approval of leave not accrued, etc.
Toyota engaged Frances O’Brien QC to investigate the allegations, who interviewed some 15 employees plus Mr Tainsh and his girlfriend’s ex-husband (who worked at the same place). Following this report Toyota dismissed Mr Tainsh for “favouritism”.
Mr Tainsh had been employed for 27 years by Toyota, and in his role was supervising 69 employees. He had an unblemished record during his employment. Toyota ended Mr Tainsh’s employment by handing him a letter of termination and five week’s pay in lieu of notice. The decision also noted that Mr Tainsh was also a senior union delegate.
In the outset, the Commissioner stated that:
“The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees)”.
“In cases relating to alleged misconduct, it is well accepted that the Commission must make a finding, on the evidence in the proceedings before it, whether, on the balance of probabilities, the alleged conduct occurred. Where the misconduct is disputed the employer bears the onus of proving to the Commission on the balance of probabilities that the misconduct has taken place. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.” [My emphasis].
In setting out a number “procedural” failings by Toyota, the Commissioner noted that “…had he not been dismissed he would have been entitled to receive a substantial redundancy package”. Further, and more telling, the Commissioner also found that leave policies were not always followed across the board.
The Commissioner in considering all the allegations, including that Mr Tainsh and his witnesses unreliable, awarded the maximum allowable under the Fair Work Act:” $68,350 plus applicable superannuation, less appropriate taxation as required by law”.
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