AIRC upholds Kings Transport and Logistics' sacking of employee, but launches scathing attack on the operator's "managerial incompetence"
By Brad Gardner | March 1, 2010
Kings Transport and Logistics has been accused of “managerial incompetence” for its handling of an employee who defrauded the company.
The operator sacked one of its managers, Gary Bermingham, in August last year after discovering he was stealing company money to fund staff social events.
Although the Australian Industrial Relations Commission (AIRC) dismissed Bermingham’s claim he was unfairly dismissed, Senior Deputy President Matthew O’Callaghan says his termination was unreasonable because he was not treated fairly.
O’Callaghan found that another employee involved in the fraud was actually promoted to Bermingham’s position after the incident, while another was only warned for his involvement.
“The evidence before me indicates that Kings has demonstrated an entirely inconsistent approach to the employees involved in this behaviour,” O’Callaghan ruled.
“This could only be described as managerial incompetence.”
The AIRC was told Kings relied heavily on limited information about Bermingham from the other employees involved in the scheme.
Furthermore, O’Callaghan says the decision to sack Bermingham was made before the disciplinary meeting and he was not asked to respond to specific allegations which may have informed Kings of the involvement of other staff.
Despite this, O’Callaghan says Bermingham admitted his behaviour was wrong and there was no dispute over money being taken.
“His actions were deliberately dishonest. He knowingly set about and conspired to defraud Kings of monies,” O’Callaghan says.
“Having taken all of the evidence into account, I consider that the termination of Mr Bermingham’s employment cannot be regarded as harsh. I do not consider Mr Bermingham’s dismissal to be unjust.”
O’Callaghan ruled against reimbursing Bermingham for unreasonable dismissal because his conduct contributed to Kings’ decision to sack him.
Bermingham claimed his decision making had been impaired because of stress and his dismissal was unfair because he was not given an opportunity to use a witness. He also argued the description of the fraud was incorrect.
Kings originally alleged Bermingham was overcharging customers and then keeping the extra money, but withdrew the accusation after the sacking.
“The advice was wrong in terms of how Mr Bermingham stole the money, but there is no dispute he took the money,” O’Callaghan says.
“Further, there is no evidence that satisfies me that Mr Bermingham’s mental condition was such that it excuses his behaviour as a manager.”
Beginning in 1991, Kings Transport and Logistics claims to boast a 350-strong workforce and 1500 subcontractors across Australia and New Zealand and offices in Melbourne, Sydney, Brisbane, Adelaide, Perth and Auckland.
Calling itself the market leaders in metropolitan transport and logistics, Kings specialises in courier and taxi truck services and warehousing and distribution.