QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 – s. 74 – application for reinstatement

Warren Sawczyn AND Colourscan Pty Ltd (No. B860 of 2000)

COMMISSIONER BECHLY 30 November 2000
Application for reinstatement – Whether applicant had a reasonable opportunity to provide explanation for conduct – Summary dismissal – Application successful – Award of compensation.

DECISION

Mr Warren Sawczyn was employed by Colourscan Pty Ltd from 11 October 1999 to 5 June 2000 as a sales representative on the Gold Coast. He was recruited by the employer from a competitive business, Paradise Printers.

At material times he was a member of the management committee of the Bilinga Surf Lifesaving Club, Inc. One of the responsibilities of that role was to secure quotes for various printing requirements. He states that three quotes were required by the committee to ensure it had available to it competitive quotes. I have no reason to doubt this fact.

Sometime prior to his termination the applicant provided information to his immediate superior to enable a quotation to be provided to the Bilinga Surf Lifesaving Club, Inc. for the printing of certain brochures. Internal preparation work was completed and the formal quote sent to the Club on 1 June 2000, from the Brisbane head-office.

However, on Thursday 1 June 2000 Mr Jeff Osborne, the Managing Director of Colourscan Pty Ltd visited the Gold Coast office and, in the absence of Mr Sawczyn, saw a handwritten request by Mr Sawczyn to Paradise Printers to quote on the same job.

He contacted Mr Sawczyn to ascertain whether he was able to return to the Gold Coast office that day. That was not possible, so he arranged for Mr Sawczyn to attend the Brisbane office on Monday 5 June 2000. He made no reference to the handwritten quote request to Paradise Printers in that discussion. Had he done so Mr Sawczyn would have had a reasonable opportunity to respond to the allegations to be later made against him.

Mr Sawczyn attended the Brisbane office on Monday 5 June as arranged and discussed with Mr Osborne a number of business matters. Mr Atkins, the immediate supervisor of Mr Sawczyn, was then invited in to the room and Mr Sawczyn was confronted with the handwritten request to quote to a competitor.

As could be anticipated, the evidence as to what was subsequently said differs markedly. The applicant says his attempted explanation that it was part of his role as a committee member to obtain competitive quotes and that Colourscan would be given the opportunity to further quote if uncompetitive was cut off.

The respondent states that an explanation was called for but none offered other than that the applicant’s only response was to the effect that it was the first time he had done this sort of thing.

Mr Osborne had prepared a cheque for termination payment in advance. He escorted Mr Sawczyn from the premises and gave him the cheque. Dismissal was instant with no payment in lieu of notice.

The process of termination was flawed. Mr Osborne made no effort to inform Mr Sawczyn or to query the reason for the handwritten request to quote on Thursday 1 June. General business discussion on jobs at hand was the first order of business on Monday 5 June. Mr Sawczyn was given, in my estimation, little opportunity to respond when suddenly confronted with the document.

While it may be acceptable practice to have prepared a payment in advance in some circumstances, the preparation in advance of the final payment cheque based on instant termination tends to support the applicant’s evidence that when confronted with the request to quote he was told that he was considered to be disloyal and working for a competitor and that an aspect of the reason for instant dismissal was that he had used the employer’s equipment and time to provide work to a competitor. The handwritten request to quote was brief. The employer’s facsimile equipment was used to transmit the quote. It would have been more desirable that the applicant’s responsibilities as a committee member be kept entirely separate from his employment to ensure no conflict of interest issues arose.

There was little opportunity given to the applicant to consider the matter and prepare an appropriate response.

Other issues intruded during the hearing which relate to the ethics of the applicant, with the knowledge as to the quotes given by other printers, giving, as a committee man, the opportunity to his employer to further quote to undercut previous quotes. To the credit of the respondent it repudiated that as a policy acceptable to it.

This application is for reinstatement. There is a degree of trust required in this relationship which does not now exist and, in my view, is not able to be restored. Compensation is the only appropriate remedy. I set that at eight weeks salary to be paid within fourteen days of publication of this decision in the Queensland Government Industrial Gazette.

R.E. BECHLY, Commissioner.
Released: 1 December 2000 /

Appearances:–

The Applicant, in person.
Mr R. Egan, of Jones Ross, for the Respondent.