Note: An appeal pursuant to s.120 (C2007/3806) was lodged against this decision - refer to Full Bench decision dated 15 February 2008 [[2008] AIRCFB 120] for result of appeal.
[2007] AIRC 869 |
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.643 application for relief in respect of termination of employment
Chrys Chrysostomou
and
Autohaus Classic BMW t/as Trivett Classic Pty Ltd
(U2007/3718)
SENIOR DEPUTY PRESIDENT HAMBERGER |
SYDNEY 9 NOVEMBER 2007 |
Termination of employment - misconduct.
DECISION
[1] Mr Chrys Chrysostomou (the applicant) was employed as a Sales Consultant by Trivett Classic Pty Ltd (the respondent) from 30 August 2002 to 5 April 2007.
[2] Mr Chrysostomou’s employment was terminated by the company for misconduct. The applicant contends his employment was terminated harshly, unjustly or unreasonably because there was no valid reason for the termination as he had not engaged in misconduct, and he had not been afforded procedural fairness.
[3] The respondent made an application to dismiss the applicant’s application on the ground that it was lacking in substance. That application was dismissed by Commissioner Larkin in a written decision of 8 June 2007 [2007] AIRC 473. At paragraph 44 of her decision, the Commissioner said
“At this point of proceedings, I am not satisfied that the application made under s.643 (1) (a) is frivolous, vexatious or lacking in substance. There are questions of fact and degree which require the leading of evidence and the testing of that evidence to reconcile the disputed positions of the parties. Some allegations are open to interpretation and contested by the applicant. Some allegations, it was argued, were not raised prior to termination. Some allegations, either if determined by the Commission as factually correct, may not of themselves justify termination of employment.”
[4] The matter was heard in Sydney on 17, 18 and 19 September 2007. Both parties were represented by counsel, Mr E Chrysostomou for the applicant and Mr R Crow for the respondent.
[5] The applicant gave evidence on his own behalf. Mr Jayson Wong, Senior Sales Consultant, also gave evidence on behalf of the applicant. Witnesses for the respondent were:
The Evidence
[6] During the hearing, there were a number of significant conflicts in the evidence given by the applicant and the other witnesses. The applicant’s representative made a number of attacks on the credibility of the evidence given by the respondent’s witnesses. I wish to observe at the outset that I found the applicant to be an evasive witness, unwilling to accept facts that could not have been in serious doubt (such as the number of cars he delivered in January) when they did not assist his case. I also note the significant discrepancies in the evidence of the applicant and Mr Wong, the applicant’s own witness. The respondent’s witnesses, by contrast, I found to be straightforward and clear in their evidence. Moreover, while the applicant’s representative highlighted differences between Mr Della-Franca’s diary notes made shortly after the events occurred, and his written statement, I was struck by their closeness. Accordingly, where there is a conflict in the evidence of the applicant and other witnesses, I have generally preferred the evidence of the other witnesses.
[7] The applicant’s employment was terminated for misconduct by the respondent on 5 April 2007 after an investigation carried out by the respondent in relation to his behaviour and allegations made by the applicant of theft by another employee.
[8] These allegations centred on the alleged theft of gift vouchers awarded as part of a special promotion run by Sime Darby Automobiles Pty Limited trading as Peugeot Automobiles Australia (PAA). This campaign centred on promoting the sales of Peugeot’s 307 HDi Hatch and Touring, 206cc and 307cc models in January and February 2007. As an incentive, a $50 David Jones gift voucher was to be awarded to each sales team for each 307 HDi hatch or Touring model sold and delivered in January and February. A $100 gift voucher was to be awarded for each 206cc and 307cc sold and delivered. Claiming the vouchers was described by PAA as an automatic process generated by PAA. The vouchers were to be sent to the Dealer Principal at the completion of the campaign.
[9] Prior to the events that led to the applicant’s dismissal, a number of other events had occurred that clearly led to a souring of the relationship between the applicant and Mr Della-Franca.
[10] For example, according to the applicant’s evidence (Exhibit T2, paragraph 5), on or about 7 February 2007 he was rudely interrupted by Mr Della-Franca while he was having a drink after hours and accused of having left a car door lock open on a car in the garage. According to the applicant this had been the responsibility of the detailer.
[11] Mr Della-Franca’s version is that on Thursday 15 February he returned to the Surry Hills premises of the respondent from a meeting at about 5:50pm. The showroom was closed and the staff had left. The basement car park was unlocked. Inside the car park was an unlocked Peugeot 206 car. Inside the car, on the front seat, was a pair of new car registration plates. Mr Kallitsis and he locked the car park and found the applicant and three other sales consultants in a nearby pub. Mr Kallitsis asked them to come back to the dealership. After Mr Kallitsis had spoken to them, Mr Della-Franca showed the applicant the car registration plates inside the unlocked Peugeot 206, and told him that if he expected commission on the sale of a car he had to be responsible for it. If it was left unlocked, he could not blame the detailer.
[12] Mr Chrysostomou’s evidence in his written statement (Exhibit C1) was that on or about 13 March 2007 he removed and opened a yellow internal mail package from Adam Hinton’s in-tray. Mr Chrysostomou said that the package was very bulky, that he was waiting on business cards and thought that this package contained them. He said that the package was marked ‘Adam’. When he looked inside he saw David Jones gift vouchers and two sheets containing the names of those to whom the vouchers were to be distributed. He photocopied the sheets of paper (paragraph 13).
[13] Mr Jayson Wong, in his statement (Exhibit C6), said that on that day he was in the same room as the applicant when the applicant said words to the effect: “Jayson. Over here. The vouchers are here.” (paragraph 2) He then walked over to the applicant and saw a large yellow reusable envelope of the kind used by the respondent for internal mail. It was sitting in a tray marked with Adam Hinton’s name. Mr Chrysostomou removed the envelope and tipped the contents out on the counter. He then rifled through them. Mr Wong saw David Jones vouchers. Mr Wong picked up a sheet of paper with a list containing the names of sales consultants. He looked down the list for his name. He then said words to the applicant to the effect of “Hold on a minute. Whose mail are we looking at?” He saw the envelope was addressed to Mr Hinton. He put the sheet of paper back into the envelope; the applicant likewise put the vouchers back in the envelope. Mr Wong then suggested that they should take the envelope down to Mr Hinton.
[14] Mr Wong said that the envelope did not look to him as if it contained business cards as the envelope the applicant opened was half the thickness of the envelopes in which new business cards would arrive. He was not aware of any practice where sales consultants opened the mail of other sales consultants or their managers.
[15] In his statement (Exhibit T5) Mr Hinton gave evidence that the envelope he received that contained the David Jones vouchers was from PAA, white, A4 sized and lined with bubble wrap. He denied that the envelope was a yellow internal mail envelope. He said that he regularly received new quantities of business cards. He said that the envelope did not appear to him as if contained business cards. Business cards were sent to him in boxes, he had never received business cards in an envelope. Mr Chrysostomou did not tell him that he had opened the envelope and examined its contents.
[16] During his cross examination, Mr Hinton said that the vouchers and the list of sales contained in the envelope were passed on to Mr Della-Franca. He again denied that the envelope was a yellow internal mail envelope (PN1759-1769).
[17] In his witness statement (Exhibit T1) Mr Della-Franca stated that on 13 March 2007 he received a torn plastic express post envelope from Mr Thomas at PAA which contained a list of sales by the respondent in January 2007 of vehicle in the Promotion (the PAA list) and some David Jones vouchers. The envelope was addressed to “Mr Gregory Duncan, Dealer Principal”. The envelope was open.
[18] I prefer Mr Wong’s version of the events surrounding the opening of the envelope. I note that Mr Wong’s statement was tendered by the applicant, and his version of events was not contested by either side during cross examination. This includes that the envelope did not look like it contained business cards, that it was opened by the applicant and that he had previously called Mr Wong over and said “[T]he vouchers are here.” Whether the envelope was white or yellow the applicant, on his own evidence, opened it knowing it was not addressed to him, and took a copy of some of the contents. Moreover it is a reasonable inference from Mr Wong’s evidence that the applicant opened the envelope after he had realised that it contained the vouchers.
[19] In his witness statement (Exhibit T1) Mr Della-Franca said that he compared the PAA list (which was for sales in January 2007) to the respondent’s records of cars delivered in December 2006 and January 2007. He noted a number of discrepancies, including that some of the cars listed had not been sold during January; other cars had been wrongly allocated to ‘general sales’ rather than a particular sales consultant; another was credited to the wrong sales consultant and others had not been sold at all but had become service loan vehicles (paragraph 52 and PN957-983). He decided to allocate vouchers to sales consultants for the sales that he considered had qualified under the terms of the promotion according to the respondent’s own records (paragraph 53).
[20] One reason for the discrepancies between the PAA’s record of sales in January and that of the respondent was that the PAA list contained four cars that had actually been sold in December 2006. In his statement, Mr Della-Franca explained that the respondent had been short of achieving the sales target for 2006 set for it by PAA. He received permission from Greg Duncan (the respondent’s Executive Chairman) to delay his report to PAA of six cars sold in December in order to get a ‘flying start’ towards achieving PAA targets in the first half of 2007. He chose the six cars before learning of the promotion (paragraph 57).
[21] I note that the total value of the vouchers listed by PAA was $1200. (A copy of the list is included as an attachment to Exhibit C1)
[22] According to Mr Della-Franca’s statement, he held a meeting on the morning of 14 March 2007, with Mr Hinton, Mr Marneros, the applicant and Ms Alarna Kench, the respondent’s marketing and events manager. The David Jones gift vouchers were distributed to sales staff by Mr Della-Franca. He gave the applicant $350 worth of gift vouchers, even though he was only entitled to vouchers worth $150. (Only two of the four cars sold by the applicant during January qualified under the terms of the promotion, one earning a $100 voucher and the other $50.) According to Mr Della-Franca no one expressed any complaint at the meeting about the number of vouchers he had been given, though Mr Marneros did query the number of vouchers he had received after the meeting. Some vouchers were left over as a result of the discrepancy between PAA’s sales records and that of the respondent. Mr Della-Franca kept these “surplus” vouchers in his desk drawer, but eventually gave out all these vouchers to sales consultants later in March 2007. He did not keep any for his own use.
[23] On the evening of 15 March there was to be special function for customers to view the new Peugeot 207.
[24] In his statement (Exhibit C1) Mr Chrysostomou described his version of what occurred at this meeting:
“On or about the 14th of March 2007 we had a morning meeting with Mr Della Franca. Those present at the meeting included Mr Della Franca, myself, Adam, Michael and Keith. Mr Della Franca said that he had some good news and that we have gift vouchers from Peugeot to distribute for certain cars we had sold. He then began to count out aloud the value of the gift vouchers twice. He said that Adam and I got $350 worth of gift vouchers and Keith received $100 worth. He later gave Jayson $200. I was upset that Mr Della-Franca did not distribute all of the vouchers. There was $1200 worth of gift vouchers to distribute. He had not given $200 worth of gift vouchers to the salesmen. This led me to believe that he had kept this amount for himself.”
[25] According to the applicant’s statement, on that same day he asked all staff to check that they had received the correct number of vouchers, according to the number of specific cars sold. He gave evidence that he heard Mr Wong ask Mr Della-Franca if all of the vouchers were given out for January, and that he heard Mr Della-Franca say that they were all distributed and February was not included. He says that he saw Mr Della-Franca tear up the sheet which showed the amount of gift vouchers to distribute and to whom, and put it in the bin.
[26] In his statement Mr Chrysostomou said that he believed that Mr Della-Franca had stolen the undistributed gift vouchers. On 15 March 2007 he approached Dennis Dawkins for advice. He said that he believed Mr Della-Franca had taken the vouchers and that he needed to speak to Ms Duncan. He asked Mr Dawkins if he could use his office for privacy to call her. He left a message for her to call him back. His evidence is that these were the only people he spoke to about the alleged theft but that he then “made the mistake to go downstairs and speak to Peter Kallitsis, in private, about it.”
[27] In his statement (Exhibit T3), Mr Dawkins gave evidence that on the morning of 15 March 2007 the applicant came to his office and they had a conversation in words to the following effect:
“CC: I think someone is stealing.
DD: Who do you think it is?
CC: Michael Della.
DD: Are you sure?
CC: Yes.
DD: Well you need to talk to Kirsty because its management.
CC: Can I use your phone?
DD: OK”
He then left the office and did not hear Mr Chrysostomou’s conversation. Mr Chrysostomou left his office without saying anything more to him.
[28] During his cross examination, Mr Dawkins reaffirmed this version of events, but added that Mr Chrysostomou appeared “hyped up” and was walking fast.
[29] In his statement (exhibit T5), Mr Hinton gave evidence that on the day of the Peugeot 207 launch (15 March 2007) he had a conversation with the applicant to the following effect:
“CC: Were you given all your David Jones vouchers?
AH: I’m sure I was. Why?
CC: Michael hasn’t given me all of mine and he’s taken them for himself. He’s a liar and a thief. You should check yours to make sure you’ve got all of them because he might’ve taken some of yours as well.”
[30] During his cross examination, Mr Hinton reiterated this evidence. I prefer Mr Hinton’s evidence that this conversation occurred over that of Mr Chrysostomou that he spoke only to Mr Dawkins (and left a message for Ms Duncan) regarding his suspicions.
[31] In his statement Mr Chrysostomou says that as he was speaking to Mr Kallitsis, the latter allowed Mr Della-Franca to come into the office. Mr Della Franca asked the applicant “why are you doing this?... go back to work”. Mr Chrysostomou then said that this was very serious and that he was speaking to Mr Kallitsis. He told Mr Kallitsis “I have reason to believe that Mr Della-Franca took our gift vouchers” and wanted to report the incident. Mr Kallitsis began by asking him who he had spoken to about the vouchers. He told him that in addition to Mr Kallitsis he had only spoken to Mr Dawkins and left a message for Ms Duncan.
[32] According to the applicant’s statement, while Mr Della-Franca was still in the office Mr Kallitsis said to Mr Chrysostomou that “This in itself consists of serious misconduct.” and that “...according to my employment contract that I was to report things in a certain manner. He said that I was to report the allegations to the person alleged to have committed the offence. He said that this alone was serious misconduct and could lead to an on the spot dismissal.” (paragraph 20, Exhibit C1)
[33] According to his statement, Mr Chrysostomou then said to Mr Della-Franca “So do you have the David Jones Vouchers?” and Mr Della-Franca replied he had given them all out and that the February vouchers were due later.
[34] Mr Chrysostomou then said that he had evidence that Mr Della-Franca had kept “our” gift vouchers. He said that at this point Mr Della-Franca told him to stop calling him a thief otherwise “I will get my lawyer to get involved.” (Paragraph 23 Exhibit C1). He said that he then stopped referring to theft and instead said the words “took” or “taken”. He then said to Mr Della-Franca
“You had a whole day to do what was right. You’re a General Manager with a good income. Why did you resort to taking our gift vouchers?”
[35] According to his statement, the applicant then asked whether Mr Della-Franca had distributed all of the vouchers and Mr Della-Franca said “yes”. Mr Chrysostomou then asked Mr Della-Franca why he had thrown out the paper with all of the allocations when Mr Wong had asked him about the vouchers. Mr Della-Franca said that he could not get another print out from Peugeot showing the names and amounts to prove he had distributed them correctly. Mr Chrysostomou accused Mr Della-Franca of lying and said he had evidence to prove that he had not distributed all of the vouchers. He then produced his copy of the PAA list and pointed out that Mr Hinton was owed $450 but was only given $350.
[36] Mr Chrysostomou’s evidence (Exhibit C1, paragraph 25) was that Mr Della-Franca then left the office and came back and said that he had spoken to Mr Hinton and told him that he might have given out the wrong amount of vouchers and that if he had he would correct it.
[37] According to the applicant’s statement, Mr Kallitsis then said that the allocation of vouchers was dependent on the reporting but that even if Mr Della-Franca decided to keep the vouchers he was entitled to do so and that in the past he had kept vouchers himself and given them as bonuses and that Mr Della-Franca could do the same.
[38] Mr Chrysostomou’s evidence is that he then asked Mr Kallitsis:
“Peter, are you saying Michael, is entitled to keep the vouchers?”
[39] According to the applicant, Mr Kallitsis replied: “Yes, he is”. The applicant then asked Mr Della-Franca
“Are you saying Michael, that you have the vouchers? Do you have them because you can, and because Peter is saying you are entitled to keep them, because of our employment contract?”
[40] According to Mr Chrysostomou’s evidence, Mr Della-Franca said “I am not saying anything”. The applicant said “So you are not saying that you have them or you don’t have them now?” Mr Della-Franca repeated “I am not saying anything”. Mr Chrysostomou then said:
“First you said you gave out the vouchers and then later you said if you had not given out the vouchers correctly that you would do so to Adam and myself, and now because of what Peter is saying, implying that you could keep the vouchers, that you would not say whether you have them or not?”
[41] According to Mr Chrysostomou, he said to Mr Kallitsis that it seemed quite unusual that Mr Della-Franca would say that he gave out the vouchers, then later he would correct any errors he made and that now he would not say whether he did or did not give out the vouchers. (Exhibit C1 paragraph 29)
[42] In his statement (exhibit T2) Mr Kallitsis gave a rather different version of this meeting. According to Mr Kallitsis, at approximately 9.00 am Mr Chrysostomou came to his office and told him that he had a serious matter to discuss, that there was a thief amongst them and that he could prove it. When asked by Mr Kallitsis who it was and what had been stolen, the applicant replied it was very serious matter and involved a senior manager. He then said that it was Mr Della-Franca and that he had stolen David Jones vouchers that belonged to the company and kept them for his own use. Mr Kallitsis’s evidence is that at this point Mr Della-Franca knocked on his door and entered his office, Mr Kallitsis having signalled to him to enter. In his statement, he outlined the following conversation:
“MDF: Is everything okay? What's going on?
PK: Given Michael's here, are you okay for us to talk about what you've just told me, given it affects Michael?
The Applicant turned to face Mr Della-Franca and pointed a finger at him.
CC: You're a thief and I can prove it.
I raised my hands in the air with my palms facing the Applicant.
PK: Whoa. Stop. You can't talk to Michael like that. It's a very serious allegation. Have you discussed this in any way with Michael?
CC: You're a thief. Just admit it.
MDF: What are you talking about?
CC: You know what you've stolen. Just admit it.
PK: Chrys, stop talking to Michael in this way immediately.
CC: No. Michael's a thief and I can prove it.
MDF: What are you accusing me of stealing?
CC: You've stolen David Jones vouchers. Just admit you're a thief.
MDF: Why are you doing this today when it's such an important day?
CC: Why don't you just admit you're a thief when it's such an important thing?
While making each statement set out in the previous paragraph, the Applicant looked at Mr Della-Franca and jabbed a finger in his direction. The Applicant was sitting on the front edge of his seat with his back reclining and one leg crossed over the other. In my opinion, his attitude and behaviour towards Mr Della-Franca was aggressive and insolent.” (Exhibit T2, paragraphs 10, 11 12 and 13)
[43] Mr Kallitsis then asked for clarification of what had been stolen, how it had been stolen and was told by the applicant that there had been a promotion and Mr Della-Franca had kept $200 worth of David Jones vouchers for himself. The applicant produced a bulletin from PAA and an attached list, with some handwritten markings. Mr Kallitsis then asked Mr Della-Franca how many vouchers Mr Chrysostomou received. Mr Della-Franca told him how many vouchers were received by Mr Chrysostomou, Mr Marneros, Mr Hinton and Mr Wong. Mr Della-Franca then said that the vouchers for February were coming.
[44] Mr Kallitsis asked Mr Chrysostomou to whom he had made the allegations and was told by the applicant that he had spoken to Mr Dawkins, Mr Wong and Mr Hinton and that he had left a message for Ms Duncan. Mr Kallitsis said:
“Well you’ve accused Michael of being a thief to Dennis, Adam and Jayson. If you’d spoken to Kirsty you’d have said it to her. You’ve said it to me. That’s five people. They’re serious allegations and I hope you can prove it. From where I’m sitting, the behaviour you’ve just demonstrated in my office and the accusations you’ve made to other people in the business, some of whom are subordinates of Michael, could be deemed as misconduct.”
[45] Mr Chrysostomou’s reply was that people were entitled to know they were working with a thief and said three times “Michael is a thief”. Mr Kallitsis repeated that this sort of accusation might be seen as misconduct and that he would have to make enquiries with HR. Mr Chrysostomou’s reply was:
“You could try to sack me for misconduct but all that would mean is that I’d take you to court.” (Exhibit T2, paragraph 16)
[46] The applicant then asked Mr Della-Franca if he had the vouchers and that he had evidence the Mr Della-Franca was a thief. At that stage Mr Della-Franca said he did not have to explain to Mr Chrysostomou what he had done with the vouchers, and told the applicant to stop calling him a thief or he would involve his lawyer. Mr Chrysostomou said that he was entitled to $450 worth of vouchers and was only given $350 worth. Mr Kallitsis asked Mr Della-Franca how Mr Chrysostomou was entitled to $450 worth of vouchers. Mr Della-Franca said that he did not know as Mr Chrysostomou had only sold three cars in January.
[47] Mr Kallitsis asked Mr Della-Franca to get a print out of the sales log for January and he left to do so. While he was absent Mr Kallitsis and Mr Chrysostomou had a conversation to the following effect:
“PK: Why are you behaving like this? You're accusing Michael of being a thief and the way you're going about it is not right. You need to calm down and stop calling him a thief.
CC: But he is a thief.
PK: Please stop calling Michael a thief.
CC: Why? He's a thief and everyone should know.” (Exhibit T2, paragraph 18)
[48] According to Mr Kallitsis’s statement, Mr Della-Franca came back with a printed copy of the Peugeot sales log for January. The figures showed that Mr Chrysostomou had only delivered three cars for January. When he asked Mr Chrysostomou for an explanation for the $200 worth of vouchers he felt were owing and the names of the deals they were attached to, Mr Chrysostomou was unable to do so. Mr Kallitsis then asked Mr Chrysostomou how he expected to be rewarded $450 if he only delivered three cars in January, as he would have had to have sold five cars to qualify for that amount according to the rules of the promotion. Mr Chrysostomou’s reply was that the vouchers belonged to the sales people and not Mr Della-Franca. Mr Kallitsis then said that Mr Chrysostomou was claiming that he was entitled to an exact amount in vouchers and that his sales did not equate to what he was asking for. Mr Chrysostomou again replied that the vouchers belonged to the sales people and asked Mr Della-Franca what he had done with them.
[49] According to his evidence, Mr Kallitsis told Mr Della-Franca not to answer Mr Chrysostomou. He then said:
“PK ...What you're wanting is a gift. That's very different to being owed something.
CC: You're good.
PK: It isn't about being good. It's about communicating with each other. Will you apologize for the accusations you've made about Michael?
CC: No, I won't.
20 The Applicant then looked at Mr Della-Franca, raised his voice and used a threatening tone of voice.
CC: What've you done with the stolen vouchers? I know what you've done and you'll pay.” (Exhibit T2, paragraphs 20 and 21)
[50] Mr Kallitsis then bought the meeting to an end by saying that he had to go to a meeting, and that he would speak to Ms Duncan and let her know what had happened that morning.
[51] The evidence Mr Della-Franca gave in his statement (Exhibit T1) concerning this meeting was largely consistent with that given by Mr Kallitsis.
[52] Mr Della-Franca’s evidence was that when Mr Chrysostomou accused him of being a thief and a liar his voice grew louder and by the end he was shouting at him, his lips were trembling and he was jabbing his finger in his direction. (Exhibit T1, paragraph 73). Mr Della-Franca said that Mr Chrysostomou was not right but could they talk about it later when the work was finished, as they had a big day. He would be happy to show Mr Chrysostomou and Mr Kallitsis that he had done the right thing when they had the time. Mr Chrysostomou then said that he was not going to move cars and reiterated that Mr Della-Franca was a liar and a thief. The applicant was shouting and jabbing his finger at him.
[53] According to his statement, Mr Della-Franca asked the applicant why he had not raised his concerns with him first before speaking to other people. The applicant replied
“I want the matter dealt with properly and I want you to get what you deserve”.
[54] According to his evidence, Mr Della-Franca replied:
“Peter, just yesterday I gave out the vouchers. The list that came from Peugeot was wrong and I reallocated the right vouchers to the right cars and, in fact, I gave Chrys more than he was entitled to. If I've done it wrong I'll gladly correct it.”
[55] Mr Della-Franca then offered to go and get the sales log. Mr Chrysostomou said that he had the evidence that Mr Della-Franca was a thief. When he was asked to show the evidence he produced the PAA list. Mr Della-Franca again said that he would get the sales log and show how he worked it out. He then left, printed a sales log for January and returned to Mr Kallitsis’s office.
[56] Mr Della-Franca’s evidence is that Mr Kallitsis positioned his computer screen so that the applicant and he could see it. Mr Kallitsis used his computer to show the details of each car and when it had been reported to PAA as sold. The conversation continued:
“PK: Chrys, you were on leave for most of January and according to the January sales log you only achieved three new sales. You've been given more vouchers than you were entitled to.
CC: Oh you're good.” (Exhibit T1, paragraph 78)
[57] According to Mr Della-Franca’s evidence, the applicant then turned towards him and the following exchange occurred:
“CC: You're a thief. You're a liar. What've you done with my vouchers?
MDF: I'm not answering that. I've given you the opportunity to ask me. I've proved you're wrong. You can't keep calling me a liar.
PK: Chrys, your statements may be grounds for misconduct if they're unfounded.
CC: It's his fault. He stole from me and the company.
PK: You should apologise to Michael for your statements. The Applicant then turned towards me again.
CC: What have you done with the stolen vouchers?
MDF: Why didn't you simply ask me if you thought there was an issue?
CC: I know what you've done and you'll pay.”
(The applicant shouted this statement.)
PK: Chrys, I think you should apologise to Michael.
CC: No. I won't.
PK: Well we'll have to investigate this and we'll come back to you Chrys. (Exhibit T1, paragraph 78)
[58] During his cross examination, the applicant agreed that he was in an emotional state on the day in question (PN306), though he denied that he shouted a lot in the meeting (PN300) or jabbed his finger repeatedly at Mr Della-Franca (PN301). He agreed that he called Mr Della-Franca a liar and a thief (PN310).
[59] Under cross examination Mr Della-Franca was asked questions about differences between a statement he had prepared for an earlier hearing in the Commission concerning a motion to dismiss the application, and the statement he had submitted for the current hearing. Mr Della-Franca said that the earlier statement had been prepared based on diary notes that he had made the day on 16 March 2007 (Exhibit C7) (PN657-661). He agreed that the when he made the diary entries the events were fresh in his memory. The applicant’s representative drew attention to the very close similarity between the contents of the diary and the first statement. The second statement had some differences, particularly including references to shouting. Mr Della-Franca said his second statement was more detailed. While the diary referred to the applicant raising his voice, it could have been clearer; however his second statement was accurate (PN818-9).
[60] I find that Mr Della-Franca’s version of this conversation is the most accurate, especially as it is almost wholly based on notes he made shortly after the events occurred, and is corroborated by Mr Kallitsis. I have no doubt that Mr Chrysostomou’s manner was aggressive and that he did raise his voice and shout at Mr Della-Franca. Moreover, he failed to take any heed of the attempt by Mr Della-Franca to demonstrate the reasons why he allocated the vouchers as he did.
[61] According to the applicant’s evidence, on or about noon on the same day he was told by Mr Kallitsis and Mr Della-Franca that there would be an investigation and in the meantime he was suspended on full pay. When he got home he had a telephone conversation with Ms Duncan and they arranged a meeting for the following day.
[62] Ms Duncan, in her evidence, gave a more detailed account of the telephone conversation. She said she telephoned the applicant on the afternoon of 15 March to arrange a time to meet with him and discuss what had happened. Mr Chrysostomou asked if she knew he had been suspended with pay and she confirmed that it was done at her instruction until such time as an investigation had been held. Ms Duncan said Mr Chrysostomou said to her:
“...CC: Michael's a thief. He hasn't given us our David Jones vouchers. I
tried to call you and tell you. I left a message on your mobile.”
and
“CC: Michael has stolen our vouchers and I can prove it.” (Exhibit T7, paragraph 26)
[63] She asked Mr Chrysostomou whom he had spoken to about this and Mr Chrysostomou said he had spoken to Mr Dawkins and that he had told the others to check their deals because Mr Della-Franca had cheated him. When asked how he knew he had been cheated he told her that he had a copy of the list from Peugeot. When asked how he had got the list he said he had opened the envelope addressed to Mr Hinton and that it had contained the vouchers and the list. When asked why he had done this he said that he knew that Mr Della-Franca would not give all the vouchers out and that he was right, Mr Della-Franca was a thief.
[64] Ms Duncan said she told Mr Chrysostomou
“KD: Chrys, we can’t just go around calling people thieves
CC: I didn’t mean to call him a thief but he is a thief.
KD: It won’t be easy to repair your relationship if with Michael if you keep calling him a thief.
CC: our relationship’s already difficult to repair. ‘I’ve been discriminated against for the past two months.
[65] They arranged to meet at 3.00 pm the following day in Parramatta. According to Ms Duncan’s evidence, she told Mr Chrysostomou that she would like to hear more about the accusations he had made regarding Mr Della-Franca being a thief and also the way in which he expressed those accusations. She asked the applicant to tell his side of the story and gave details of the conversation. According to her evidence (Exhibit T7, paragraph 27) the conversation continued:
“CC: Michael is a thief and there has been more than just the example yesterday. I sent you an email a few weeks ago to let you know that Michael had been over-reporting monthly sales. This is costing the company money because it means that Michael gets paid more commission than he's entitled to and so do some of the consultants.
KD: What makes you believe that Michael has been over-reporting sales?
CC: Michael told us at a meeting how many sales were counted for the month. It was in the 40's which sounded quite high to me. Then in the next meeting the number of sales had dropped into the 30's. From this I knew that he would try to cheat us out of our David Jones vouchers when they arrived.”
[66] Ms Duncan asked Mr Chrysostomou to tell her more about the vouchers. He told her that he knew Mr Della-Franca would cheat them and he did. He said:
“CC: I saw an envelope arrive which was addressed to Adam Hinton. It was bulky so I thought it could be the vouchers and I decided to open it. When 1 opened it I discovered it was the vouchers. There was a letter enclosed which listed the recipients of the vouchers. I took a photocopy of the letter.
[67] When asked if he had a copy of the letter he gave one to Ms Duncan and said she could keep it. Ms Duncan asked him if he thought it was wrong to open and copy the mail of others he said yes but he knew Mr Della-Franca would lie and cheat and he needed proof. When asked he said that he still thought Mr Della-Franca had cheated him out of his vouchers and he was a thief. Mr Chrysostomou had said that he had only spoken to Mr Dawkins and Mr Kallitsis about Mr Della-Franca being a thief but had told the other sales guys to make sure they had counted their vouchers as Mr Della-Franca had cheated Mr Hinton and himself out of theirs.
[68] When asked if he had spoken the Mr Della-Franca he said yes, he had spoken to him in Mr Kallitsis’s office and told him he was a thief and that he could prove it. He said that in hindsight it was probably not appropriate to call your manager a thief but that he was a thief, he had stolen Mr Chrysostomou’s vouchers and kept them for himself. When asked whether at any point he had asked to see Mr Della-Franca’s calculations or asked Mr Della-Franca if he had made a mistake before accusing him of being a thief, he replied no.
[69] Ms Duncan then voiced concern about the Mr Chrysostomou accusing Mr Della-Franca of being a thief, saying that if he was allowed to do that it would set a precedent for others and that that was not accepted behaviour in the business.
[70] Mr Chrysostomou then told her that Mr Della-Franca had been discriminatory towards him by making him knock on the glass by his door before he entered, while the other staff were allowed to just walk in. The vouchers were just another example and that he had already brought to her attention Mr Della-Franca’s over-reporting of monthly sales. When asked if there was anything else he wished to say he said no. Ms Duncan said she would start investigating the matter next week and that she would need Mr Dawkins and Mr Morrison to provide her with some financial details. She said that she would speak to Mr Chrysostomou during the week, in the meantime Mr Chrysostomou was not to attend the business nor contact any customers and the meeting was concluded.
[71] On the same day Mr Chrysostomou spoke to his lawyers (Nicholas George Lawyers), who sent a letter to Mr Greg Duncan on 16 March 2007 (appendix J to C1) requesting details of the reasons for Mr Chrysostomou’s suspension from work and raising concerns with regard to possible discrimination, bullying and intimidation of Mr Chrysostomou by Mr Della-Franca. They also raised the issue of their client being afforded natural justice and procedural fairness during the investigative process.
[72] On 21 March 2007 Summerton de Vere Solicitors, acting for the respondent, wrote to Nicholas George Lawyers. This correspondence stressed the seriousness of Mr Chrysostomou’s allegations and the necessity of conducting an investigation. They formally requested that Mr Chrysostomou submit a statement setting out his reasons for his allegations.
Investigation
[73] In her evidence Ms Duncan gave details of the investigation conducted by her with regard to the allegations made by Mr Chrysostomou. In her conversation with Mr Della-Franca she said:
“KD: 1 caught up with Chrys on Friday and he raised some concerns about feeling discriminated against. He said that he has to knock on the glass before entering your office whereas other staff can just walk in. Is that true?
[74] Ms Duncan said she spoke at length with Mr Della-Franca about how he distributed the David Jones vouchers. She also got a copy of Mr Chrysostomou’s sales log for January (Exhibit T7, annexure KD12). Later in the week she spoke to Mr Hinton who told Ms Duncan that in conversation Mr Chrysostomou said Mr Della-Franca was a liar and a thief. Mr Hinton later sent Ms Duncan an email regarding the conversation (Exhibit T7, annexure KD14).
[75] During that week she also asked Mr Dawkins and Mr Morrison to send her the details of Mr Chrysostomou’s January deals. During that week she prepared a breakdown of the sales and summary of the entitlement to David Jones vouchers under the bonus scheme of Mr Chrysostomou during January.
[76] When reviewing information for the investigation Ms Duncan also took into consideration bulletins from Sime Darby (PAA) dated 6 February and 19 March relating to its plan to award David Jones vouchers to sales consultants as an incentive (annexure KD 20 to T7), the sales log of Peugeot – City and Eastern Suburbs dealership for December (annexure KD21 to T7) and the applicant’s email to herself dated 6 February 2007. She also read a statement made by the applicant dated 30 march 2007.
[77] As a result of her investigation Ms Duncan concluded that:
“...there was no basis for the following allegations by the Applicant:
(1) His allegation of theft against Mr Della-Franca; I formed the opinion that Mr Della-Franca had correctly distributed the David Jones vouchers to sales consultants for their sales in January 2007 and that he was entitled to distribute extra vouchers and to hold onto and distribute the remaining unallocated vouchers as bonuses later in the month. I concluded that he had not withheld vouchers to which sales consultants were entitled.
(2)His allegation that Mr Della-Franca had deliberately inflated monthly sales figures so as to increase his commission.
(3)His allegation that Mr Della-Franca had discriminated against him; I formed the opinion that the Applicant had been treated no differently than the other sales consultants.
46. I concluded that the Respondent should terminate the employment of the Applicant on the ground of misconduct and, in particular, his verbal aggression and abuse of Mr Della-Franca, his allegations that Mr Della Franca was a thief made to other employees and his opening of another employee's mail. I also concluded that the Applicant's conduct had done so much damage to his relationship with Mr Della-Franca that it could not be restored. (Exhibit T7, paragraphs 45 and 46).
[78] In response to correspondence from the applicant’s solicitor to the respondent’s solicitor, Ms Duncan made enquiries with regard to two sales Mr Chrysostomou had not been paid commission for in March 2007. Attachment KD23, prepared by Ms Duncan, of T7 is a table of that unpaid commission.
The Applicant’s Submissions
[79] The applicant submitted that there was no valid reason for the termination of Mr Chrysostomou’s employment. The applicant:
[80] The applicant submitted that the respondent failed to notify the applicant of the reasons for his suspension, which inevitably led to his termination. Because the allegations made by the respondent against the applicant were only provided at the actual time of the termination of his employment, the applicant had no opportunity to respond to these allegations. The meeting with Mr Kallitsis was not an appropriate environment for the applicant to respond – in any case the allegations were not put to the applicant at that meeting.
[81] The applicant submitted that the complaints made by the applicant were never properly investigated.
[82] In addition, it was submitted that the applicant had not received any training in human resource matters, including how to lodge or deal with grievances. Finally, it was submitted that it was profoundly harsh for the respondent to terminate the applicant, knowing that his mother was terminally ill, and that the applicant was an employee with a clear employment record with 4.5 years of service with the respondent.
The Respondent’s Submissions
[83] The respondent submitted that:
[84] The respondent submitted that the applicant’s behaviour:
1. was reprehensible;
2. was completely contrary to reasonable standards of behaviour in the workplace;
3. showed contempt for his supervisor, Mr Della-Franca;
4. was used to undermine Mr Della-Franca’s authority and reputation amongst his colleagues;
5. was inconsistent with the applicant’s responsibility under the respondent’s employee guidelines to act in a professional manner, respect his colleagues, respect confidentiality; engender a team focus and contribute to the fostering of a positive work environment;
6. demonstrated a repudiation of his common law obligation to conduct himself in good faith at work, and
7. constituted verbal aggression and abuse, entitling the respondent to terminate the applicant’s employment without notice, pursuant to his contract of employment.
[85] The respondent submitted that the applicant was given ample opportunity to give his version of events. He made a statement dated 30 March 2007 (on which he subsequently relied in the proceedings before the Commissioner). This statement was forwarded to the respondent and was taken into account before deciding to terminate the employment of the applicant on the grounds of misconduct.
[86] Ms Duncan outlined to the applicant in their meeting on 16 March 2007, the reasons the respondent was considering terminating the applicant’s employment; namely his verbal aggression and abuse of Mr Della-Franca, his allegations, made to other employees, that Mr Della-Franca was a thief, his opening of another employee’s mail, and that his conduct had done so much damage to his relationship with Mr Della-Franca that it could not be restored.
Was the Termination of Chrysostomou’s Employment Harsh, Unjust or Unreasonable?
[87] In considering whether the termination of the applicant’s employment was harsh, unjust or unreasonable, the Commission must have regard to the factors set out in section 652(3) of the Workplace Relations Act 1996. I will consider each of these in turn.
[88] First, it is necessary to consider whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety or welfare of other employees).
[89] “Whistleblowers” have an important role to play in our society, which deserves protection. No employee should face the risk of being dismissed merely because he or she makes a serious complaint of wrongdoing by a manager. Moreover, the mere fact that a complaint turns out to be wrong, by itself, should not lead to termination. However such complaints are of their nature inherently sensitive and needed to be handled in an appropriate manner, both by the complainant and the employer.
[90] Mr Chrysostomou should not have opened the envelope with the David Jones gift vouchers, nor copied the document contained in the envelope. The envelope was not addressed to him, nor did he have any authority or legitimate reason to open it and examine its contents. That was a clear case of misconduct. However, having done so, it is understandable that he thought something was wrong when Mr Della-Franca only handed out $1,000 worth of vouchers, rather than the full $1,200 he knew had been sent by PAA. He was understandably not aware of the discrepancy between the PAA list and the actual sales made by the dealership in January.
[91] Unfortunately, he immediately jumped to the conclusion that Mr Della-Franca had stolen the other $200 worth of vouchers. I can understand why he might not have taken his suspicions directly to Mr Della-Franca, with whom he clearly had a poor relationship. However the course of action he then embarked on was entirely inappropriate. First he proceeded to mention his suspicions to Mr Hinton, and Mr Dawkins. He then launched into a full scale attack on Mr Della-Franca in his meeting with Mr Della-Franca and Mr Kallitsis. While I do not consider it a critical point, I am quite satisfied based on the evidence that he was very aggressive during this meeting, stabbing his finger and raising his voice. It is hard not to infer that he was quite triumphant with what he thought he had discovered about Mr Della-Franca.
[92] What I find most concerning however is Mr Chrysostomou’s unwillingness to consider he might have been wrong, even when both Mr Della-Franca and Mr Kallitsis tried to show that nothing untoward had happened by comparing the PAA list and the actual sales records. He simply continued making his unfounded allegations, not only during the rest of that meeting, but subsequently to Ms Duncan. Indeed, even during the hearings in the Commission he appeared very reluctant to admit he was wrong.
[93] I find that the way in which Mr Chrysostomou made his allegations about Mr Della-Franca constituted a valid reason for the termination of his employment.
[94] Next, I need to consider whether Mr Chrysostomou was notified of the reason for his termination. I am satisfied that Ms Duncan made clear to the applicant during her meeting with him on 16 March 2007 the respondent’s concerns with the way he had opened and copied mail not addressed to him, the way in which he had gone around calling Mr Della-Franca a thief, and his failure to ask Mr Della-Franca to show him how he had decided on the allocation of vouchers. I note that there does not appear to have been any mention of the verbal aggression he was alleged to have used during his meeting in Mr Kallitsis’s office. Nevertheless, I conclude that Mr Chrysostomou was aware of most (even if not all) of the key elements of the reason for his termination.
[95] It is then necessary to consider whether Mr Chrysostomou was given an opportunity to respond to the reason for his termination. Clearly, the applicant was able to respond to the concerns Ms Duncan expressed to him at their meeting on 16 March. Moreover he later sent a statement dated 30 March 2007 through his solicitor giving his version of the events, in which he again had the opportunity to respond to those concerns.
[96] I have to consider the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination. The respondent is a large undertaking which could reasonably be expected to follow reasonably sophisticated procedures. While perhaps less than perfect (for example it might have been better if the respondent had put the reasons it was considering to terminate the applicant’s employment in writing before making its decision) I find that the procedures adopted were generally fair.
[97] I do not consider any other matters to be relevant. The applicant submitted that I should take into account the failure of the respondent to investigate the allegations made by the applicant. On the contrary, I consider that his allegations were investigated, and shown without much difficulty to be false. The applicant also referred to the failure of the respondent to train the applicant in human resource matters, including how to lodge a grievance. While such training might have been desirable, the applicant had 4.5 years experience with the respondent, and common sense should have told him that the way he went about making his allegations was inappropriate. I not agree with the submissions of the applicant that his employment record was clear. Indeed, in the weeks leading up to his termination, there had been a number of concerns with his performance. Finally, while the terminal illness of his mother is indeed tragic, I do not consider that by itself it rendered the termination of the applicant’s employment harsh.
[98] Taking account of all the relevant circumstances, I find that the termination of the applicant’s employment was neither harsh, unjust nor unreasonable. The application is dismissed.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
E Chrisostomou and A Brown for the applicant
R Crow and C Stockwin for the respondent
Hearing details:
2007
Sydney
17 September
18 September
19 September
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