DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Mathew Bognar
v
Western Motorcycles Pty Limited
(U2018/9806)

Application for an unfair dismissal remedy.

[1] In this application, the applicant Mr Mathew Bognar claims he was unfairly dismissed by his employer Western Motorcycles Pty Ltd on Monday, 3 September 2018. As a remedy, Mr Bognar seeks compensation for loss of earnings as he has now obtained alternative employment.

[2] The unfair dismissal application is opposed by the employer.

[3] Mr Bognar represented himself and Mr Ray Moody, the owner and director of the respondent, appeared on its behalf. Both representatives were unfamiliar with Tribunal proceedings requiring the Commission to become more involved in the hearing than would otherwise occur.

Submissions and evidence of Mr Bognar

[4] Mr Bognar commenced employment at Western Motorcycles on 13 August 2012 and at the time of his dismissal was the Workshop Manager/Service Manager 1 at the respondent’s Penrith workplace in Sydney.

[5] Mr Bognar stated that on Thursday 30 August 2018 the Dealer Management System (DMS) was not operating at the workplace. The DMS handles invoices and no job cards can be issued without the DMS working.

[6] Mr Bognar stated that on the morning of the same day a Honda CBR 650 motorcycle was dropped off for its first service around 8:00am - 8:30am. A first service normally costs a standard $250. The customer advised they would be back around lunchtime. As the DMS was not working the job was manually recorded on a job card.

[7] Mr Bognar stated that when the owner of the motorcycle returned he paid for the first service in cash and the $250 cash was placed in a drawer of the office desk by a work colleague Mr Christopher Wright.

[8] Mr Bognar stated that later that afternoon he asked the Operations Manager Mr Bruce Hull what to do with the cash as the system was down and Mr Bognar couldn’t enter the details. Mr Bognar stated he was advised by Mr Hull to leave the money in the office drawer until the DMS was working 2. Cash is normally placed in the cash register in the office.

[9] The next day, Friday 31 August 2018, Mr Bognar stated that he arrived at work early around 7:15am to catch up on work not entered into the DMS. However, the DMS was still not working so manual job cards were again used.

[10] At approximately 4:00pm on Friday 31 August 2018, the DMS became operable and the backlog of work was entered into the DMS. The last job card to be entered was the first service job for the Honda CBR 650. Mr Bognar stated that he produced the job card and went to retrieve the cash and noticed there was only $200 in the drawer; he then issued the job card for $200. Mr Bognar further stated that on Monday 3 September 2018 he arrived at work around 7:15am and opened the office desk drawer and put his wallet/kit and keys in the drawer, as he does every morning, when he noticed a $50 note at the back of the drawer.

[11] Mr Bognar stated that later that morning he was approached by Mr Ray Moody, in front of Mr Wright, and was asked to step outside. Mr Bognar stated that Mr Ray Moody said he didn’t tolerate theft and that Mr Bognar had stolen $50. Mr Bognar stated that he wasn’t given a chance by Mr Ray Moody to speak and that Mr Ray Moody started saying that tyres are missing as well. Mr Bognar was asked to collect his personal possessions and leave the workplace.

[12] Mr Bognar stated that as he was leaving the workplace, Mr Ray Moody said to him not to pursue the matter otherwise Mr Ray Moody would call the police.

[13] Mr Bognar submits that he was unfairly dismissed as he didn’t steal the $50 and that there was no investigation or opportunity provided to respond to the allegations. Mr Bognar acknowledged that $250 cash was received from the customer on the Thursday, but when he found only $200 in the drawer on the Friday afternoon he invoiced only $200 as it was at the end of the month and a Friday afternoon and he wanted to balance the figures, and in his haste he could only locate $200 in the drawer at the time. Mr Bognar accepted that reducing the invoice by $50 was incorrect, but stated that he would not steal $50 from his employer.

[14] In giving oral evidence, Mr Bognar’s position varied from his written evidence and submissions. In his oral evidence, Mr Bognar stated that on Monday morning, 3 September 2018, Mr Wright and he found $50 in the drawer. This evidence was inconsistent with what was stated in Mr Bognar’s application and statement filed with the Commission.

[15] Following Mr Bognar’s oral evidence he was provided with a further opportunity to give evidence on the witness statement and oral evidence of Mr Wright. Mr Bognar was then asked further questions by Mr Ray Moody and the Commission following Mr Wright’s evidence. In his further oral evidence, Mr Bognar stated that he agreed with Mr Wright’s evidence and had asked Mr Wright when Mr Wright arrived at work at around 7:45 - 8:00am on Monday morning, 3 September 2018, if Mr Wright knew where the $50 cash was. Mr Bognar stated that Mr Wright was reluctant to give evidence on his behalf due to concerns about the ramifications from his employer.

[16] In response to why he didn’t immediately account for the $50 cash when he found it on the Monday morning, Mr Bognar stated that the DMS was down and they were busy at the time. Mr Bognar advised Mr Ray Moody that everything was fine when asked because he had no reason to state otherwise.

Western Motorcycles’ submissions and evidence

[17] Mr Ray Moody, the owner and director of the respondent, gave evidence that he had employed Mr Bognar as a service manager for 6 years and considered Mr Bognar a trusted team member. 3 On Monday, 3 September 2018, when Mr Ray Moody arrived at work he was made aware of the “stolen” cash issue regarding Mr Bognar by Mr Darren Moody, the respondent’s Sales Manager.

[18] Mr Ray Moody stated that he was told that Mr Bognar had taken $250 cash from a customer for a first service on Thursday 30 August 2018 and that Mr Bognar was told by Mr Hull to keep it in a safe place until the DMS was working.

[19] Mr Ray Moody was informed that on Friday afternoon when the DMS became operable again Mr Bognar invoiced the job at $200 and handed Mr Hull a $200 invoice and $200 in cash. Mr Ray Moody stated that Mr Bognar did not mention to Mr Hull that he had previously received $250 nor did he mention the unaccounted for $50.

[20] In Mr Ray Moody’s view Mr Bognar had kept the extra $50 in his office drawer.

[21] On Monday morning around 8:30am, and again at 9:30am, Mr Ray Moody approached Mr Bognar and asked how everything was; Mr Bognar responded fine. Mr Ray Moody returned to the office to re-look at what had been told to him by Darren Moody and Bruce Hull. 4 He decided to approach Mr Bognar at 10:00am and ask him to hand over the company keys and to meet him in the car park to discuss the issue away from other staff members. Mr Moody stated that he told Mr Bognar that theft was not tolerated and that Mr Bognar was terminated immediately.

[22] Mr Ray Moody stated that when Mr Bognar was told that he was terminated Mr Bognar immediately went back to the workshop and ‘miraculously’ produced a $50 note from his office drawer.

Evidence of Mr Bruce Hull

[23] Mr Bruce Hull, the respondent’s Operations Manager, also gave evidence and provided a witness statement. 5 Mr Hull stated that on Thursday 30 August 2018 Mr Bognar told him he had $250 in cash from a first service and had asked him what to do with the money. Mr Hull stated that he told Mr Bognar to hang on to the cash for a while as he expected the DMS to be fixed shortly so normal invoicing would be able to resume.

[24] Mr Hull stated that late in the day on 30 August 2018, when the DMS was still not fixed, Mr Bognar again asked him what to do with the $250 cash. Mr Hull asked if Mr Bognar could keep it in a safe place until the morning and Mr Bognar agreed to lock it in the office. Mr Hull stated that late in the afternoon the following day just before closing, Mr Bognar came into the office with a job card for the first service invoiced out at $200 with 4 x $50 notes attached. Mr Hull stated he was surprised that it was not $250 as Mr Bognar had stated twice the previous day that he had received $250 in cash.

[25] Mr Hull stated that he did not raise the issue with Mr Bognar, as he wanted to speak to Darren Moody or Ray Moody. On Saturday 1 September 2018, Mr Hull showed Darren Moody the invoice as Ray Moody was not in and voiced his concerns. Darren Moody said he would speak to Mr Ray Moody about the matter.

Evidence of Mr Darren Moody

[26] Mr Darren Moody the respondent’s Sales Manager also gave evidence. 6 Mr Darren Moody’s evidence was that from the morning of Thursday 30 August 2018 until early afternoon Friday 31 August 2018, the DMS was not operating so transactions could not be processed and manual records were being kept. Mr Darren Moody stated that on the afternoon of Friday 31 August 2018 he was told by Mr Hull that Mr Bognar had received $250 cash from a job but only invoiced $200. This was contrary to Mr Hull’s evidence that he did not pass on this information to Mr Darren Moody until the Saturday morning.

[27] Mr Darren Moody stated that on Saturday 1 September 2018 he telephoned the customer, who confirmed he had paid $250 in cash. Mr Darren Moody stated that he passed this information on to Mr Ray Moody on Monday morning 3 September 2018, and that they both agreed that Mr Bognar’s employment needed to be terminated as theft is not to be tolerated. 7

[28] It became apparent during the hearing that Mr Ray Moody had not spoken to Mr Wright in coming to his conclusion that Mr Bognar had stolen $50. Mr Ray Moody stated this was because Mr Bognar had not raised Mr Wright’s involvement at the time of his dismissal 8. Mr Ray Moody stated that Mr Wright was not called to give evidence as the employer was unaware of his involvement until the first day of the hearing.

[29] The Commission thus determined that Mr Wright’s evidence would be necessary in this matter and Mr Wright was initially contacted by telephone where he gave conflicting responses to questions asked by Mr Ray Moody and Mr Bognar. As a result, the hearing was adjourned to enable Mr Ray Moody to obtain a witness statement from Mr Wright and for Mr Wright to give his evidence under oath and subject to cross examination by Mr Bognar.

Evidence of Mr Christopher Wright

[30] Mr Wright provided a witness statement 9 and gave oral evidence. He stated that on 30 August 2018 the computer server was down and during the day a customer came to pick up his bike and spoke to Mr Bognar; at the end of the conversation the customer handed over payment to Mr Bognar and placed it on the desk. Mr Wright stated that when the customer and Mr Bognar went outside to continue their conversation, he needed to go to the spare parts department and the money was still sitting in front of Mr Bognar’s keyboard so he placed the money in Mr Bognar’s drawer on the side of the desk because he did not wish to leave it unattended.

[31] Mr Wright stated that at some point during the morning of Monday 3 September 2018, Mr Bognar asked him about the $50. As Mr Wright didn’t know what Mr Bognar was talking about, he asked Mr Bognar ‘what $50?’ Mr Wright stated that Mr Bognar then started talking about the $250 from the first service job and Mr Wright told Mr Bognar that the last he saw of the cash was on Thursday when he put it in Mr Bognar’s drawer and that it should still be in the drawer.

[32] Mr Wright stated that Mr Bognar then had another look for the cash and found the $50, which Mr Wright witnessed.

[33] Mr Wright further stated that about an hour or two later Mr Ray Moody came into the office and asked Mr Bognar for the workshop keys and Mr Bognar and Mr Ray Moody then went outside into the car park. Mr Bognar then returned to the office and took the $50 out of the drawer and walked back to Ray Moody saying, ‘here it is’.

[34] Mr Wright was not cross-examined by Mr Bognar on the basis that Mr Bognar agreed with his evidence.

Consideration

[35] In dealing with unfair dismissal applications, the Commission is required to take into account a number of factors listed at s.387 of the Fair Work Act 2009, the first being whether there was a valid reason for the dismissal relating to the person's conduct.

[36] The dismissal relates to an allegation of theft where the employer states all employees were aware that theft of any magnitude would not be tolerated.

Valid reason

[37] Leaving aside the issue of the missing $50, Mr Bognar completed a job card and invoice for an amount that was clearly incorrect. The explanation provided for stating that the cost of the job was $200, when $250 had been received and was the normal fee for the service, does not justify such conduct. Whether Mr Bognar was anxious to finish up for the end of the week, or wished to ensure that the figures balanced at the end of the day, is not a satisfactory reason to incorrectly state the cost of the job undertaken and cash received.

[38] Further, it would appear to have been a simple exercise to explain to Mr Hull that while $250 cash had been received, only $200 could be located. Mr Bognar concedes that this conduct was incorrect. Although this conduct was clearly inconsistent with normal procedures, I am not satisfied that it alone provided a valid reason for Mr Bognar’s summary dismissal.

[39] It is the allegation of theft that the employer relies upon to justify Mr Bognar’s dismissal. Mr Bognar’s oral evidence, in respect to finding the $50 note in the office drawer on the Monday morning, was far from convincing. As stated previously, the reliance on Mr Wright as having also witnessed seeing the $50 note in the office drawer on Monday morning was only raised on the first day of the hearing, however this position was corroborated by Mr Wright on the second day of the hearing in certain aspects.

[40] However, it is in distinct contrast to Mr Bognar’s initial application filed on 24 September 2018, 21 days after his dismissal, which he repeats in his statement filed in the Commission and attested to under oath. At paragraph 3 of Mr Bognar’s statement, tendered as Exhibit A1, he states:

“3. Monday 3 September, I arrived at work (7:15) I opened the draw (sic) and put my wallet/kit and keys (as I do every morning) when I noticed a $50 note at the back of the draw.”

[41] Whereas the written evidence of Mr Wright 10 was in the following terms:

2. On Monday 3rd of September, I went in to work. At some point during the morning Matt asked me about $50. I didn’t know what he was talking about, so I replied, “what $50?” He then started talking about the $250 from the first service job. I told him the last I saw of it was on Thursday when I put it in his drawer.”

[42] Mr Bognar was unable to provide any explanation as to how he came to provide the first explanation having agreed in his evidence that the events occurred as described by Mr Wright and that they occurred at around 7:45am – 8:00am.

[43] It is clear that Mr Wright’s involvement in the ‘finding’ of the $50 was not known to Mr Ray Moody when he dismissed Mr Bognar. Mr Ray Moody’s evidence was that he had no reason to question Mr Wright at the time.

[44] The allegation of theft resulting in termination of an employee is a serious matter and should not occur without an employee (in this case Mr Bognar), being given a full opportunity to respond to the allegation. This did not occur.

[45] The raising of the missing $50 by Mr Bognar with Mr Wright on the Monday morning is not consistent with an allegation that Mr Bognar deliberately wrote up the invoice on previous Friday for $200 so he could keep the $50. It is also not consistent with Mr Bognar having found the missing $50 on the Monday morning prior to his dismissal. Had Mr Bognar intended to steal the $50 it would be unlikely that he would have raised the missing $50 with Mr Wright or have then searched and found the $50 on the Monday morning when there had been no allegation of theft. Further, it would appear unlikely that having previously told Mr Hull that he had $250 in cash on two occasions that he would then maintain that there was only $200 in the office drawer.

[46] Where a dismissal is based on the employee’s misconduct the Commission must determine whether the misconduct occurred on the evidence based on what is presented at the hearing. 11 Despite my concerns regarding the manner in which Mr Bognar gave his evidence and the inconsistencies in Mr Bognar’s evidence on when he came to find the missing $50, on the balance of probabilities and having regard to the seriousness of the allegation, I am not able to be satisfied that Mr Bognar stole the $50, being the reason for his dismissal. As such, I do not find that a valid reason existed for his summary dismissal. The conclusion of the employer could not be said in the circumstances to be sound, defensible or well-founded.

[47] Mr Bognar was not provided with a reasonable opportunity at the time to provide a response to the allegation of theft. Had this occurred much of what was submitted at this hearing would have been resolved. The witness statement of Mr Darren Moody makes it clear that Mr Ray Moody and himself had formed the opinion that Mr Bognar was to be terminated before he was spoken to:

“(10) At approximately 7:50 when I first saw Ray I told him all of the above events as they had been told to me by Bruce and the customer. Ray asked me to repeat the story which I did. We then had a brief discussion where we both agreed that Matt (sic) Bognar’s employment needed to be terminated immediately as per our company policy on any kind of theft not being tolerated.”

[48] There was no suggestion that the allegation first be put to Mr Bognar and an opportunity be provided for him to respond. Further, Mr Bognar had no opportunity to obtain a support person to assist in any discussions relating to his dismissal.

[49] Mr Ray Moody’s evidence was that he approached Mr Bognar at 8:30am Monday morning and asked if ‘everything was all right’, then later on around 9:30am he asked Mr Bognar ‘how he was going’. This cannot in any reasonable sense be considered as having provided Mr Bognar with an opportunity to respond to the direct and serious allegation of having stolen $50. It is unsurprising that Mr Bognar responded that everything was fine, when asked these questions.

[50] The respondent’s Form F3 indicates it employed 30 employees at the relevant time and is not a small business as defined under the Fair Work Act 2009; its human resources procedures should be reasonably advanced, however they were decidedly deficient in respect of the applicant’s dismissal. It would appear that the respondent has little if any human resource management expertise, as the process it adopted concerning Mr Bognar’s dismissal was seriously lacking in procedural fairness.

[51] In my view, the evidence of Mr Wright has failed to support the employer’s contention that Mr Bognar stole the $50.

[52] It appears that the whole matter could have been averted had Mr Hull simply queried with Mr Bognar why the invoice and the cash he was given on the Friday afternoon was only $200 rather than staying silent and only raising his concerns the following day with Mr Darren Moody. 12

[53] To the extent that there were procedural flaws in the process adopted by the employer this should not to be elevated above the substance of the outcome, as the Western Australian Industrial Appeal Court in the Shire of Esperance v Mouritz stated in regard to the procedural fairness of a dismissal: 13

“The unfairness of the dismissal cannot therefore be determined by the procedural unfairness alone.”

[54] In the comments of the majority of the High Court in Ainsworth v Criminal Justice Commission 14 their Honours’ stated:

“It is not in doubt that, where a decision making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, when viewed in its entirety, entails procedural fairness.” 15

[55] In this matter the procedural flaws are overwhelming; there was no investigation, there was no proper opportunity for Mr Bognar to respond to the allegation, and the employer predetermined the outcome without the applicant being aware of the allegation made against him.

[56] Having found that a valid reason for the dismissal did not exist, and considering all relevant factors under s.387 of the FW Act including the procedural deficiencies involved in Bognar’s dismissal, I find that his summary dismissal was unjust and unreasonable and as such his dismissal was unfair.

[57] The parties will be provided with an opportunity to make submissions in respect to any remedy the Commission may make.

DEPUTY PRESIDENT

Appearances:

Mr Mathew Bognar on his own behalf.

Mr Ray Moody on behalf of the Respondent.

Hearing details:

18 January 2019

23 January 2019

Printed by authority of the Commonwealth Government Printer

<PR704251>

 1   Both titles were referred to during the proceedings

 2   Exhibit A1

 3   see Exhibit R1

 4   When he spoke to Mr Hull is not evident

 5   Exhibit R2

 6   Exhibit R3

 7   Exhibit R3 at [10]

 8   Mr Bognar stated he was not given any opportunity to provide a response at the time of his dismissal.

 9   R4

 10   R4

 11   Edwards V Giudice (1999) 94 FCR 561, [1999] FCA 1836

 12   Noting Mr Moody states it was raised on Friday afternoon

 13   71 WAIG 899

 14   175 CLR 564 at 578

 15   South Australia v O’Shea (1987), 163 CLR 378 at p.389 per Mason CJ