DAVIES v GORDONSTONE COAL MANAGEMENT PTY LTD [1997] IRCA 173

DECISION NO:173/97 CATCHWORDS

INDUSTRIAL LAW - alleged UNLAWFUL TERMINATION - TERMINATION OF EMPLOYMENT - VALID REASON - SERIOUS MISCONDUCT - CONDUCT AND PERFORMANCE - employee allegedly involved in scheme to defraud employer.

Workplace Relations Act 1996 (Cwth) ss 170DE, 170EA, 170EDA. Evidence Act (Cwth) s64

Jones v Dunkel (1959) 101 CLR 298

DAVIES v GORDONSTONE COAL MANAGEMENT PTY LTD QI96/1166

Before: MURPHY JR Place: BRISBANE Date: 23 MAY 1997

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY

QI96/1166

BETWEEN: ANTHONY KEVIN DAVIES Applicant

AND GORDONSTONE COAL MANAGEMENT PTY LTD Respondent

BEFORE: MURPHY JR PLACE: BRISBANE DATE: 23 MAY 1997 MINUTES OF ORDERS

THE COURT ORDERS THAT:

[1] The application is dismissed.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY

QI96/1166

BETWEEN: ANTHONY KEVIN DAVIES Applicant

AND GORDONSTONE COAL MANAGEMENT PTY LTD Respondent

BEFORE: MURPHY JR PLACE: BRISBANE DATE: 23 MAY 1997 REASONS FOR DECISION Delivered ex tempore

The applicant seeks a remedy under s170EA of the Workplace Relations Act 1996 (Cwth) ("the Act"). He alleges that his services as a maintenance planner were unlawfully terminated on 11 September 1996. The respondent is an American owned company that manages a large underground coal mine in central Queensland. The grounds of the termination were that the applicant had been guilty of misconduct in that as a result of gross negligence the respondent had been over-charged for hours on the bath-house project. Alternatively, the applicant had been guilty of misconduct in that he had been involved in an act of dishonesty, a fraudulent scheme to obtain money from the respondent perpetrated by Mr Barry Bourke at the bath-house project at the respondent's Gordonstone mine. The evidence. The evidence in the case was extensive. Each of the witnesses had filed either witness statements or statutory declarations and some additional evidence was led in evidence-in-chief. Each of the witnesses were extensively cross-examined by the other side. I do not intend to extensively rehearse the evidence. The evidence presented by the respondent contained copies of numerous primary documents which were the basis of its quite extensive investigation into the matter, as well as notes taken by its employees, and other documents derived from the primary documents. In terms of its sheer bulk, it was clear that the respondent had thoroughly investigated this matter. As the solicitor for the respondent put it in his opening address, "there was plenty of process". It was common ground that the primary issue in the proceedings was whether the respondent had discharged its onus of proof under s170EDA(1) that it had a valid reason under s170DE(1) to dismiss the applicant. The respondent's case. The applicant held a middle level management position with the respondent. His primary duties related to maintenance planning on the mine machinery, matters the subject of statutory requirements imposed on the respondent. He also had other duties involved in administering other contracts associated with maintenance projects on the surface at the mine site. In April 1996, a decision was taken to refurbish the bath-house floor. The state of the bath-house had been the subject of some industrial sensitivity and the project had to be completed in a fashion that would allow some use of the bath-house to continue during the project. The respondent had a maintenance services agreement covering the provision of certain maintenance services to the mine. That agreement was designed to provide for the provision of smaller one-off jobs to be charged on an hourly rate without the need for the respondent to seek to tender for the job. It was decided that the bath-house refurbishment would be handled in two ways. The actual installation of the new flooring was the subject of a lump sum tender awarded to a flooring contractor. The balance of the work, which involved preparation for the new floor and replacement of lockers after its installation, was to be performed under the maintenance agreement. It was the subject of an estimate and after the job was completed, an invoice was to be raised. The applicant raised a service request and a "sole source supplier/bid waiver justification" document. The latter document proposed that the work be performed by M and W Garwood Pty Ltd ("Gardwood"), due to the "stop/start nature of the project". The sole source document made reference to a work schedule. This document listed the various tasks and the times associated with the whole job. The applicant gave evidence that this document was prepared after consultation with Mr Barry Bourke, who was the carpenter/supervisor of Garwood, and with the successful flooring tenderer. Work proceeded on the job over the period May to June 1996. The original estimate of the job was $42,000. In June, Garwood invoiced the respondent for some $31,000, which was paid. The respondent's system under the maintenance services agreement was that the contractor was to submit "day works sheets" which were time sheets. These were then to be authorised by the respondent, and subsequently an invoice sent and paid. In the bath-house project, Mr Bourke signed the day works sheets and submitted these to the applicant every week or so. The applicant then signed them. Subsequently, Mr Bourke handed all the sheets to Mrs Wendy Garwood, who did the secretarial side of the Garwood business, and she wrote an invoice No. 001134 which was forwarded to the respondent and paid. It is the day works sheets (annexure "JBH2" to Mr Hunter's statement) that are central to this proceeding. It was the respondent's case that the applicant, in signing these sheets, had committed an act of gross negligence, or was involved in a fraudulent scheme to defraud the respondent because the sheets contained inflated claims by Garwood for labour supplied at the bath-house. On the respondent's version, the matter arose as follows: Mr Malcolm Garwood gave evidence that when he successfully tendered for the maintenance services agreement, he was told by someone that it would be of assistance to have Barry Bourke involved in the maintenance agreement. Mr Bourke had worked for the previous tenderer. Mr Bourke commenced working for Garwood in February 1996. At that time, Mr Garwood, who was the manager of Garwood, also held an earthmoving services contract with the respondent. He had no expertise in general maintenance and needed Mr Bourke. He let Mr Bourke, in effect, run the maintenance agreement. He was to regret this. Mr Garwood gave evidence that around the time that the job for the bath-house was being awarded, he overheard Mr Bourke and the applicant concocting a scheme to inflate the hours on the job. He said he had his suspicions about this type of thing prior to this but was unable to do anything about it. Mr Garwood said he told Mr Bourke he was not happy with his attitude but claimed he did not know that the actual inflation was to be carried out. When Mrs Garwood was handed the time sheets after the job was completed to prepare the invoice, she noticed that Mr Bourke's hours were inflated and that a Mr Clancy, who no longer worked for Garwood, was claimed to have worked there. She asked Mr Bourke about this, and was advised that it would be all right. After the invoice had been sent in, one of the subcontractors who had worked for Garwood, Mr Callianiotis, who is also Mr Garwood's son-in-law, raised with Mrs Garwood that the hours that he and his own employee, Mr Hilton, worked, were also inflated. Mrs Garwood ascertained that this was in fact the case. Mr Bourke seeks a payment. The event that precipitated these proceedings occurred on 1 August 1996. On that day Mr Bourke raised with Mr Garwood that he and the applicant wanted $5,000 each for their entitlement for their work on the bath-house project. He told Mr Garwood that the applicant needed the money to pay a deposit on some land. Mr Garwood told Mr Bourke he would have to think about it. He discussed the matter with his wife. The next day, Mr Bourke said to Mrs Garwood, "Tony[Davies] wants his cheque today". Mr Garwood gave evidence that on 1 August the applicant had rung him, introduced himself and said, "Where is my cheque", or "When can I have my cheque". Overnight Mrs Garwood calculated the inflated hours on the bath-house job by deducting from the hours that Mr Bourke had completed on the time sheets the actual hours that had been invoiced by the Garwood contractors and paid by Garwood. She calculated that this amounted to something over $13,000. Mr Garwood decided to pay Mr Bourke two-thirds of this amount, and retained the balance. A cheque for $7,285.90 was drawn which was the two-thirds, less the prescribed payment tax. Mr Garwood handed Mr Bourke that cheque on 2 August and told him that he "did not do business that way", and that his services were terminated. Mr Bourke subsequently went to the Union of Mine Workers ("the union"). Mr Garwood was later presented with an ultimatum by the union over the matter. Soon after this Mr Garwood advised Mr Mellor, the Acting Human Resources Manager at the respondent, of the fact that he had terminated Mr Bourke and that the union had become involved. On 9 August Mr Garwood had a meeting with some union representatives. Mr Mellor was present. At that stage Mr Garwood advised the union representatives that Mr Bourke had been terminated as a sub-contractor for performance related issues. The meeting adjourned. Later that day Mr Garwood sought an urgent meeting with Mr Mellor. He told him the real reason for the Bourke dismissal, and confessed the fact that Mr Bourke and the applicant had conspired to load up the hours for the bath-house job, and were to split the payment fifty/fifty. Further, that he, Mr Garwood, was aware of this. According to Mr Mellor's statement, he advised Mr Mellor that the applicant had called him on 2 August, and sought the money as he had just bought some land. The respondent investigates. Mr Mellor reported the matter to his superior, Mr Hunter, who was the commercial leader of the respondent. Advice was sought from head office in America, and the local managing director, Mr Misinay, was involved. An investigation team was assembled consisting of Mr Hunter, Ms Mitchell, a Brisbane based corporate solicitor from the holding company, and Mr Mellor. The team proceeded, commencing 13 August, to investigate the matter. They did this by interviewing Mr and Mrs Garwood, and viewing all the relevant documentation. They also interviewed Mr Chris Callianiotis and Mr Richard Hinton, the two contractors of Garwood that worked on the project. They obtained a copy of Mr Callianiotis' diary. Another worker on the job, Mr Ashton, was interviewed. Mr and Mrs Garwood were interviewed a second time. When the day sheets submitted by Mr Bourke were viewed they revealed that there was a claim that a Mr G. Clancy had worked fifty-two hours on the job. A Mr M. Clancy was interviewed to ascertain if there may have been some mistake. Mr Bourke's diary was also viewed. Mr Hunter, who had an accounting and auditing background, prepared a number of spreadsheets that compared the day sheets with the diary records of Mr Callianiotis and Mr Bourke. The spreadsheets revealed that the respondent had been billed for 624 hours on the job, when in fact only 396 hours were recorded as having been performed. The respondent also ascertained from Mr Callianiotis that Mr Bourke had at one stage told him to "go slow" as the job was progressing too fast. In evidence Mr Callianiotis said it was the applicant who told him, in the presence of Mr Bourke, to go slow. The respondent interviews Mr Bourke and the applicant. After a perusal of the documents, and in particular the spreadsheets, the respondent formed the view that it had been the subject of a claim for inflated hours by Mr Bourke. The ghost employee, Mr Clancy, figured prominently in this conclusion. It was decided to interview Mr Bourke. Mr Bourke admitted that the hours claimed were excessive, but emphatically denied that the applicant was involved. He said that the applicant, although he visited the site on a daily basis, would not have known whether Mr Clancy was working there or not, and that the applicant did not know Mr Callianiotis and the others who worked there. He denied requesting a cheque on behalf of the applicant. The respondent then interviewed the applicant. He was asked whether he wished to have a union official present. He declined. In evidence he said he was not asked. The applicant was then questioned about the time sheets and he said he checked to see that the hours added up. He said he did not really look closely at the names, and did not know a Mr G. Clancy, who was supposed to have worked on the job. He said his main concern was that the project was on schedule. The applicant denied that he had requested any cheque from Mr Garwood. When asked whether he had purchased some land the applicant said he planned to do so. Later he said he had paid a deposit. After this meeting the respondent reflected on what it had been told by Mr Bourke and the applicant and reached the conclusion that the applicant's account lacked credibility. On 20 August a show cause letter was sent to him, outlining the reasons why the respondent had concluded that he had been negligent, and as a result that the respondent had been overcharged by $13,000. Further, it concluded that he had knowingly participated in a scheme to defraud the respondent. On 20 August there was a meeting at which the allegations were put to the applicant and he was invited to respond. At that meeting, at which Mr Goedde, a representative of the applicant's union (the Australian Collieries Staff Association) was present, the applicant again denied any telephone call to Mr Garwood. Mr Goedde also raised a number of issues relating to the authorisation of time sheets, stating that what the applicant did was not abnormal. A further meeting was held on 26 August, at which the applicant had his solicitor present, along with Mr Goedde and Mr Bruce Smith, another union representative and staff member at the mine. At that meeting issues of the applicant's lack of training, the fact that there were no policies in place for supervision of these types of jobs, and the fact that it was custom and practice at the mine to supervise jobs in the way the applicant did, were raised. There was a further meeting on 29 August at which the respondent responded to the various matters raised previously by the applicant. In relation to the lack of training the respondent pointed to a course that the applicant had attended in October 1994 where internal control issues were raised. It also pointed to its "principles of business conduct" document and its "policy and procedures manuals" that were part of the applicant's work agreement. Further it asserted that the size of the job was such that it could not accept that the ghost employee had been overlooked. At that meeting a statutory declaration from Mr Bourke was produced which denied any involvement of the applicant in the scheme. The respondent noted that it had statutory declarations from Mr and Mrs Garwood implicating the applicant. The respondent had a further meeting with the applicant and more senior union representatives, including Ms Gray who represented the applicant in these proceedings. Again the issue of training, and custom and practice regarding time sheets was raised. The respondent disputed the matters raised by the applicant's representatives. Subsequently, the respondent's representatives then involved in the investigation - Mr Hunt, Ms Mitchell and Ms Gould - conferred and formed the view that the allegations were made out. They then had a telephone conference with Mr Misinay who at that stage was in America. He considered what had been put before him and formed the view that he had lost confidence in the applicant. He endorsed the recommendation of the investigation team to dismiss the applicant. On 11 September, the applicant was handed a letter ("SLM17" to Ms Mitchell's statement), elaborating on the reasons why the respondent had reached the conclusion that it should dismiss him. He was paid a month's pay in lieu of notice. The issues at trial. It is appropriate to consider the evidence at the trial in the order in which it related to the events which actually occurred over the period May to August 1996. The applicant gave evidence of his duties and the fact that this was the first major contract he had been required to supervise. He gave evidence that he did attend at the Garwood office to ascertain whether they had sufficient labour available for the bath-house job. Mr Garwood gave evidence that he over-heard Mr Bourke and the applicant concocting a plan to load the hours on the project. Mr Garwood is somewhat hard of hearing, but it is significant and points to the veracity of Mr Garwood's evidence, that Mr Bourke subsequently admitted that he, but not the applicant, had a scheme to pad the hours on the project. Once the project was underway, the applicant gave evidence that he visited it on a daily basis, sometimes more than once a day. He said, however, that he did not get to know the names of the workers involved until later in the project, and that there were a number of men involved. Mr Callianiotis gave evidence that in the first week Garwood had only three employees involved: himself and Mr Hilton, and Mr Bourke. Mr Garwood himself was present but only for a short time. The flooring contractors had only two men involved for only a couple of hours at a time. In the first week of the project, Mr Bourke booked, and the applicant signed for some 227 hours, when according to Mr Bourke's diary only 131 hours were actually performed. It was of course over that first week that Mr Bourke claimed 30 hours for Mr Clancy who did not actually work on the project. The applicant's explanation that he had not appreciated that Mr Clancy was a ghost employee was that he gave the time sheets only a cursory glance, only briefly checked the arithmetic, did not know the employees on the site, and that work was in any event being performed off-site. Mr Callianiotis was emphatic in his evidence that the amount of work performed off-site was minimal. Further, the number of employees on the site for Garwood was only three or four, and that there was hardly any overlap with the flooring contractor. Even on the applicant's own schedule and GANT chart, there was little overlap between the flooring contractors and the Garwood contractors. No off-site work was recorded on the schedule. It was suggested that there were two other jobs going on in the bath-house at the time, contracts numbered MG075 and MG102. From Mr Hunter's spreadsheet, ("JBH10" to Mr Hunter's statement), it is clear that the hours involved in those jobs were only very minor and they were performed by Mr Bourke, Mr Callianiotis and Mr Hilton. It follows from this that the applicant's evidence that the time sheets showed nothing abnormal, when they included times of Mr Clancy on six occasions and that this did not cause any inquiry, is difficult to accept. The matter is further compounded by the evidence of Mr Callianiotis in relation to Saturday 25 May. On that day, he and Mr Hilton had been asked to come up for a day or a day and a half's work by Mr Bourke. They drove from Yeppoon. When they arrived, they had finished by around 11.00am and were concerned that they had made the journey for little remunerative purpose. Mr Callianiotis gave unchallenged evidence that the applicant was present on that day. Mr Callianiotis gave evidence that the applicant indicated to Mr Bourke that the men could claim for nine hours work. On 27 May, the following Monday, the applicant signed a time sheet for 25 May that records that each of Messrs Bourke, Callianiotis, Hilton and Clancy had worked 10 hours that day. Mr Bourke's own diary records eight hours on the bath-house and he ultimately only invoiced that amount to Garwood. Mr Callianiotis' credit was attacked on the basis that he was Mr Garwood's son-in-law and that when Mr Bourke was sacked, he took over supervising the maintenance contract. Neither of these matters are strong factors that would indicate why he would have any motive to give evidence damaging to the applicant. One aspect of his evidence that tends to support the respondent's version is a statement it alleged that the applicant made to Mr Bourke in the first week or so. This was that the work should "slow down". At that point, the project was 100 hours ahead of the budget set out in the schedule. It is difficult to see why Mr Callianiotis would fabricate such a statement. On the other hand, if the applicant and/or Mr Bourke were involved in an arrangement to ramp up the hours on the project, then such a statement makes sense. The evidence of Mr and Mrs Garwood. It was submitted that if the evidence of Mr and Mrs Garwood is preferred over that of the applicant, then the applicant must lose. The evidence requires close scrutiny. Mr Garwood was interviewed by Mr Mellor on 9 August. He was interviewed by the investigating team twice on 13 August. He signed a statement on 14 August and made a statutory declaration of that statement, after taking legal advice, on 16 August. The respondent's interviewing team accepted that he was telling them the truth. The story he told them was one that he must have been reluctant to tell because it exposed him to the loss of his two service agreements with the respondent. In his evidence, he said that what happened with the bath-house contract was a mistake. The representative for the applicant submitted that Mr Garwood's evidence implicating the applicant should be rejected. She submitted that Mr Garwood had an incentive to implicate the applicant in order to shift some of the culpability from himself. This was particularly because Mr Garwood had retained one-third of the money for the inflated hours. Further, Mr Garwood was about to have his involvement revealed because Mr Bourke had brought in the union after being dismissed by Mr Garwood. The fact that Mr Bourke had brought in the union certainly gave Mr Garwood an incentive to go to the respondent. It is difficult to see how it leads to the next step which is that Mr Garwood falsely accused the applicant of involvement. It is common ground that Mr Bourke was involved. The applicant did discuss with Mr Bourke the schedule of hours. Mr Garwood claimed that he over-heard them discussing padding the hours. The hours were in fact padded. On 1 August Mr Bourke asked for his share of the padded hours. Mr Garwood told his wife that Mr Bourke had sought payment for both himself and the applicant. Mr Garwood alleged that the applicant rang and asked for his cheque. He said as far as he was concerned it was the applicant's voice he recognised on the telephone. The applicant admitted that he may have rung Mr Garwood yet denied ever asking for money. Mr Bourke in his statement to Mr Mellor said that the applicant was buying some land. The applicant was buying land at the time. Mr Garwood told his wife that the applicant had rung and sought a cheque. On 2 August, Mr Bourke asked Mrs Garwood for the applicant's cheque. The out-of-court statements made by Mr and Mrs Garwood are admissible as first-hand hearsay under s64 of the Evidence Act (Cwth). In assessing whether Mr Garwood is likely to be telling the truth about his knowledge of the applicant's involvement and about the telephone call, the overall predicament that Mr and Mrs Garwood faced cannot be ignored. Mr Garwood presented as an honest, old style earth-moving contractor whose involvement with Mr Bourke had led him into a mistake. He was torn between his dependence on Mr Bourke to discharge the maintenance contract and his principles. Against the better nature of both himself and his wife, he let his standards drop. He then threw himself at the mercy of the respondent. It offends against human experience that, in the circumstances he was in, he would compound the mistake by a false accusation against the applicant. That Mr and Mrs Garwood, at what was the earliest opportunity, were prepared, after taking legal advice, to put their versions into a statutory declaration is only consistent with the impressions of the respondent's investigators that both presented as people coming clean over a matter they regretted. The evidence of Mr and Mrs Garwood, and that of Mr Callianiotis, must be weighed against that of the applicant and the out-of-court denial by Mr Bourke. Mr Bourke did not give evidence. I was invited to draw an inference against the applicant for the failure to call him: Jones v Dunkel (1959) 101 CLR 298. The representative for the applicant gave an account from the bar table as to efforts to locate Mr Bourke. The efforts would probably not meet the standards required to have Mr Bourke meet the test as an unavailable witness under the Evidence Act. It is unnecessary for the Court to decide this point. It is sufficient to say that the hearsay statements by Mr Bourke, recorded by Mr and Mrs Garwood, are matters to which the Court is entitled to attach weight. It is also significant, and a matter to which I do give weight, that the respondent's investigating team, who had the opportunity to interview Mr Bourke, did not accept that he was being truthful with them. I attach no weight to the statutory declaration of Mr Bourke. It seeks to contradict only one matter of Mr Garwood's statement of 14 August. It makes no reference at all to the communications between Mr and Mrs Garwood and Mr Bourke relating to a cheque for the applicant. Indeed, the fact that it makes no reference at all to the most significant aspects of Mr Garwood's statement against the applicant itself leads to an inference that Mr Bourke, at that stage, was not prepared to make a formal statement contradicting the matters in Mr Garwood's statement. Weighing the applicant's account. The respondent's unfolding approach to this matter is an interesting example of human reasoning in action. Mr Hunter, who gave his evidence by satellite link from Utah in the USA, said that when the original allegations were made against the applicant, he was inclined not to accept them. He did this because he accepted the honesty of the applicant. In effect, he accorded him the presumption of innocence. After the first round of interviews, the respondent reached the preliminary conclusion that the applicant had been guilty of gross negligence and dishonesty. This is set out in the letter of 20 August. It was in the period after 20 August when Mr Goedde and Mr Smith became involved that the respondent was forced to reconsider its preliminary conclusions. It was forced to do this by the assertion made by the applicant, and Mr Goedde and Mr Smith, that what the applicant had done was in effect custom and practice; that he had received no proper training in how to supervise contractors and that therefore there was no active gross negligence in the applicant signing the time sheets containing the bloated hours and the ghost employee. To use an analogy in the criminal law, the applicant raised with the respondent material which he asserted was a reasonable hypothesis consistent with innocence. The respondent, in accordance with what can only be described as an investigation that is a model of fairness and thoroughness, investigated the matters raised. When Mr Hunter and Ms Gould investigated the matters, they discounted their validity. At the trial, the applicant sought to establish that it was custom and practice that time sheets were just signed off, that he had no training to know that anything further was required, or that contractors should be handled in any special way. The evidence of Mr Goedde, Mr Smith and Mr Vaughan did not rise to support this aspect of the applicant's claim. While their evidence supported the view that until August 1996, there had been various slack practices within the respondent in relation to time sheets for mine workers, it was not asserted that a person in a position of the responsibility should take no action to verify a time sheet for a contractor when such action could be taken. The evidence led in relation to the applicant's training was inconclusive. The applicant had been to courses on internal control but denied receiving the course material. In relation to the applicant's responsibility for time sheets, in his own statement he annexed the maintenance procedures manual which makes reference to the shift leader "reviewing and approving time sheets". After extensive cross-examination, the applicant was reluctantly forced to accept that he had some responsibility for the accuracy of the time sheets. The respondent pitched its case on the issue of gross negligence that the applicant either did absolutely nothing to verify the time sheets, which was gross negligence because of the sheer obviousness that they were padded due to the small number of employees involved and the ghost employee. Alternatively, the respondent invited the Court to draw the conclusion that the only explanation was that the applicant dishonestly chose to sign them as part of an arrangement with Mr Bourke, as evidenced by Mr Garwood's account. The applicant was the subject of sustained cross-examination. As a result of that cross-examination, he was forced to concede some responsibility for the accuracy of the time sheets. He was also forced to concede a closer relationship to Mr Bourke than in his evidence-in-chief. One assertion put in cross-examination that he was ultimately unable to avoid was that Mr Bourke could only take the risk of ramping the hours, and having Mr Clancy as a ghost employee, if he knew that the applicant would take no action: in other words, that he was involved in the scheme. It is here that the submission that the applicant's suspicions were never aroused by Mr Bourke's actions is difficult to accept. The applicant clearly knew Mr Bourke. There was unchallenged evidence that the two of them often disappeared together for an hour or so at the site. The evidence that the applicant was on site on Saturday, 25 May, and approved Mr Callianiotis' extra hours, was not challenged. The evidence of Mr Callianiotis that there was only a limited number of men on the site was not challenged. The evidence that the applicant used his schedule to control the project lacked credibility, because the schedule hours bore little relationship to the actual hours worked and the applicant must have known this because of his close familiarity with the project. The applicant's evidence that he could not have noticed that Mr Clancy was a ghost employee lacked credibility. There are a number of other matters of evidence raised in the submission by the solicitor for the respondent that I accept but need not repeat. I accept that there was no basis for the assertion that what happened can be attributable to lack of training or as constituting some sort of custom and practice at the mine. I note that the applicant's dismissal did coincide with a number of initiatives by the respondent, clearly not uninfluenced by pressure from the applicant's union to address accountability concerns at the mine, particularly among staff. I am satisfied, however, that these matters have no bearing on the matters that led to the conclusions reached by the respondent in the case of the applicant and do not detract from the validity of those conclusions. This also applies to the assertions made that the matters raised in this case were treated differently by the respondent than other instances. Conclusion: Valid reason made out. In its letter of 11 September 1996 ("SLM17" to Ms Mitchell's statement), the respondent dismissed the applicant because the events that I have described led it to the conclusion that they: "...could only have occurred through the applicant's gross negligence or his dishonest participation in a fraudulent scheme." It rejected the applicant's explanations and denials and preferred to accept the version put forward by those it interviewed, including Mr and Mrs Garwood. Having heard the evidence of the competing versions, the Court prefers the respondent's evidence over that led on behalf of the applicant. On the test for a valid reason advanced by the representative for the applicant, and on the balance of probabilities, the respondent has discharged its onus of proof that it had a valid reason to terminate the applicant's services. The application is dismissed. I certify that this and the preceding seventeen (17) pages are a true copy of the reasons for decision of Murphy JR as recorded on transcript and revised by the Judicial Registrar.

Associate: KAREN HALSE Dated: 23 May 1997

APPEARANCES

Representative for the applicant: MS J GRAY from the AUSTRALIAN COLLIERIES STAFF ASSOCIATION Registered organisation for the applicant: AUSTRALIAN COLLIERIES STAFF ASSOCIATION

Solicitor appearing for the respondent: MR D C WILLIAMS Solicitors for the respondent: MINTER ELLISON

Dates of Hearing: 19, 20, 21 & 22 MAY 1997 Date of Judgment: 23 May 1997