Dec 1167/98 B Print Q6375

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.170CE application for relief in respect of termination of employment

A. Yilmaz

and

Electronic Control Systems (Alice Springs) Pty Ltd

(U No. 80092 of 1998)

COMMISSIONER BACON

BRISBANE, 16 SEPTEMBER 1998

Termination of employment.

DECISION

This is an application made by Ms A. Yilmaz (the applicant) which seeks relief pursuant to s.170CE of the Workplace Relations Act 1996 (the Act). The applicant was employed by Electronic Control Systems (Alice Springs) Pty Ltd (the respondent) in the respondent's Darwin office in the position of "Office Receptionist". The applicant was employed on a full time basis (following a short period of casual employment) from 28 October 1997 until her employment was terminated on 29 May 1998. The applicant alleges that the termination of her employment was harsh, unjust or unreasonable.

Background

To fulfill her role as an office receptionist the applicant was issued with a purchase order book. Her contract of employment limited her "authority to purchase" to goods up to a value of $500.00 with a purchase order. In accordance with what the applicant testifies was her understanding of the "private" or "staff" purchase policy, the applicant on 16 January 1998 used a purchase order to obtain from Bunnings Building Supplies (Bunnings) a quantity of fly wire valued at $69.45. The fly wire was for the personal use of the applicant to be fitted to her home in Darwin. On that same day Bunnings raised an invoice (the Bunnings invoice) for the fly wire. The ordinary process in relation to goods bought by purchase order in the Darwin office was that on each Wednesday designated people to whom purchase order books had been issued would provide a copy (the pink copy) of the purchase order to the applicant. When an invoice came into the Darwin office the applicant would attach the relevant purchase order form/s to the invoice (place a stamp on the invoice and date it) and then deliver both documents to the relevant manager for his or her "authorisation". The invoice is authorised for payment by the relevant manager signing it in the appropriate space on the stamp. The invoice was then forwarded to Alice Springs to the Group Accountant for payment.

It is the applicant's evidence that the Bunnings invoice was not received in the Darwin office or, if it was, she did not sight it. As a result, it is also the applicant's evidence that over time she forgot about her outstanding personal purchase and in any event she was not required to do anything about the personal purchase until the invoice was received.

The evidence of the applicant is that she first became aware of the existence of the Bunnings invoice when it appeared on her desk on what she recalls to be Tuesday 26 May 1998. She noticed it had on it a handwritten message from Mr A. Mason, the Group Accountant in Alice Springs. The message was to the effect that Mr Mason needed more information regarding the invoice. It is also the applicant's evidence that the invoice she received had come by facsimile from Mr Mason. On seeing the invoice, the applicant gave evidence that she immediately telephoned Mr Mason, appraised him of the situation and her intention to pay for the fly wire and Mr Mason responded with "No dramas".

Mr P. Chenoweth, the General Manager, gives evidence that whilst he was in Alice Springs on Friday, 22 May 1998 he was given the Bunnings invoice by Mr Mason who complained that he had on three occasions faxed the Bunnings invoice to Darwin (to the applicant) in order to obtain some details on the original purchase. No response had been received and Mr Mason gave Mr Chenoweth the invoice (or a copy of it) and asked Mr Chenoweth to provide details. Mr Chenoweth wrote on the invoice "More information r'qd?". His evidence is that he spoke to the applicant about it early to mid morning on Monday 25 May and asked her to obtain the details. That evening, whilst working back, Mr Chenoweth noticed the invoice in the applicant's in-tray. He decided to investigate it himself. He established that the purchase order had been issued by the applicant. Mr Chenoweth became suspicious. He returned the invoice to the applicant's in-tray. The next day, Tuesday 26 May, he asked the applicant how the investigation was going and it is Mr Chenoweth's evidence that the applicant said she would follow it up. Later that day, the applicant came into Mr Chenoweth's office and advised that she had raised the order and intended to repay the money.

Two days later, Thursday, 28 May, the respondent terminated the applicant's employment over the incident.

The respondent submits that its personal purchase policy requires that any personal purchase be approved prior to the purchase being made. Specifically, the purchase order form should be completed, or at least signed, by an appropriate official (in this case Mr Chenoweth) prior to the purchase. Further, the respondent submits that this policy was known to the applicant and that she failed to follow it. The applicant argues that she was unaware of the policy as described by the respondent. She believed that as she was authorised to make purchases to a value of $500.00 that included personal purchases. I am unsure of the practical effect of the applicant's belief of her authorisation. She did however, acknowledge in cross examination that it meant she could make numerous personal purchases without prior authorisation from senior management provided each personal purchase was less than $500.00 in value. Whilst I am not convinced that the respondent has established that the applicant was aware of the personal purchase policy as described by Mr Chenoweth, it is difficult to accept that the applicant believed that the personal purchase policy operated in the manner she outlined. In any event, it is not necessary to determine the evidentiary conflict on this specific point.

I accept the submission that the purchase order for the fly wire which reads under the head of "description" on the purchase order No. 140209 "70cm H X 15M" is totally inconsistent with the detail usually provided on the applicant's purchase order forms. The description is non-specific yet all other purchase orders completed by the applicant are specific. The applicant was unable to adequately explain the reason for the difference.

On the purchase order form the applicant also indicates that the purchase is sales tax exempt. This would not be the case for a personal purchase, but would be the case if the purchase was made for the respondent. Again, the applicant was unable to adequately explain this other than to indicate that it would maximise her saving on the purchase. The fact that the sale was sales tax exempt gives the purchase order the appearance of a company purchase rather than a personal purchase.

The purchase order contains a "job number" entered by the applicant. A job number is for the respondent's internal accounting processes. The respondent submits that job numbers should not appear on staff purchases and that S-T-A-F-F should appear in lieu of the job number. The applicant testifies that Bunnings would not accept the purchase order without a job number (as opposed to S-T-A-F-F) and that the job number was inserted to ensure that the invoice could be traced to the applicant. The invoice from Bunnings does not contain the job number.

The Bunnings invoice was never received in the Darwin office even though it has the Darwin address on it. It was the applicant's job to open the mail.

The Group Accountant faxed the invoice to the applicant for details on three occasions, yet the applicant testifies that it was never received by her, despite the fax machine being located on the applicant's desk.

The respondent also relies on the failure of the applicant on Monday 25 May 1998 to immediately recognise the fly wire on the invoice as her personal purchase and to admit it to Mr Chenoweth. The applicant alleges that she did just that because on her version she received a fax from Mr Mason at lunch time on Tuesday 26 May and immediately she saw it she phoned him about it and indicated that the fly wire was hers and that she would organise payment in the next week. On this point, where the applicant's evidence conflicts with that of Mr Chenoweth, I prefer Mr Chenoweth's version. Mr Mason had already given a copy of the Bunnings invoice to Mr Chenoweth to take to Darwin and investigate. It hardly seems likely that Mr Mason would (for the fourth time) fax the invoice to the applicant and ask her to investigate it when he already had Mr Chenoweth undertaking that task.

Conclusion

On the evidence I am satisfied that due to the number of irregularities associated with the personal purchase, it was open to the respondent to reach the conclusion that the applicant had attempted to have the respondent pay for her personal purchase. Whilst each individual irregularity is not conclusive, when they accumulate they entitle the respondent to reach the conclusion it did. Whether or not I would have reached the same conclusion as the respondent is not the point. Clearly, sufficient grounds existed for the respondent to reach the conclusion it did.

I am not satisfied however, that the applicant was given an opportunity to respond. Whilst it is open to the respondent to reach the conclusion it did, there is also an obligation to put that conclusion to the applicant and hear her response. It may well be that the applicant does have a total misunderstanding of her authority in relation to staff personal purchases. In this case the respondent terminated the applicant's employment without first giving her an adequate opportunity to respond. This failure does not of itself make the termination of the applicant's employment harsh, unjust or unreasonable.

On balance, and applying the fair go all round principle, I believe that a valid reason existed for the termination of the applicant's employment and that the failure to gain a response from the applicant prior to the termination of her employment has not produced an outcome that was harsh, unjust or unreasonable to the applicant. I am satisfied that had all the information that was presented in these proceedings been provided to the respondent prior to the applicant's termination, it was still open to the respondent to conclude that the applicant did not intend to pay for her personal purchase.

There are allegations made by the applicant that her employment was terminated because:

. She is pregnant;

. She asked for a salary increase;

. She is the only female in an otherwise all male office;

. She is a member of the Australian Municipal, Administrative, Clerical and Services Union.

There is no evidence before the Commission which establishes any of these allegations.

For the foregoing reasons I am satisfied that a valid reason existed for the termination of the applicant's employment and that such termination was not harsh, unjust or unreasonable. Accordingly, the application is dismissed.

BY THE COMMISSION:

COMMISSIONER

Appearances:

L. Matarazzo of the Australian Services Union representing the applicant.

M. Blandy of the Northern Territory Chamber of Commerce and Industry representing the respondent.

Hearing details:

1998.

Darwin:

September 8; 9.

Decision Summary

		Termination of employment - unfair dismissal - applicant terminated over incident involving personal purchase - respondent submitted that applicant attempted to have respondent pay for her personal purchase - applicant argued that she was unaware of respondent's policy with regard to personal purchases and that she had stated to respondent that she intended to repay the money - Commission satisfied that due to number of irregularities associated with personal purchase, it was open to respondent to reach conclusion that applicant had attempted to have respondent pay for personal purchase - Commission considered respondent's failure to provide applicant with opportunity to respond and found that this failure did not of itself make termination harsh, unjust or unreasonable - Commission found no evidence to support applicant's allegations that she was terminated because she was pregnant, asked for a salary increase, was the only female in otherwise all male office and was a union member - application dismissed.
Yilmaz v Electronic Control Systems (Alice Springs) Pty Ltd
U No 80092 of 1998				Print Q6375
Bacon C			Brisbane	16 September 1998

Printed by authority of the Commonwealth Government Printer

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