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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Justin William Bartlett Rebecca Naomi Bishop and Nico Holdings Pty Ltd trading as
Industrial dispute - matters joined - termination of employment - breach of Restaurant Keepers Award - arbitrated - applications dismissed REASONS FOR DECISION These applications, by Justin William Bartlett and Rebecca Naomi Bishop (the two employees), were made under section 29(1A) of the Industrial Relations Act 1984 (the Act) seeking hearings over disputes with Nico Holdings Pty Ltd trading as McDonalds Invermay (the Company). The two employees claimed they had been unfairly dismissed by the Company: Miss Bishop sought reinstatement and compensation and Mr Bartlett sought compensation on the basis of lost wages.1 At the hearings held in Launceston on 22 January 1999 and 19 May 1999, Mr W Bartlett of Bracknell represented the two employees and Mr A Flood of the Tasmanian Chamber of Commerce and Industry Limited represented the Company. At the main and final hearing the two applications were joined by consent.2 The Company alleged that, together with one other employee (the other employee) on the morning of 23 October 1998, the employees brought alcohol into the Invermay restaurant and had consumed some of it there; they had stolen food product from the freezer in the restaurant and had cooked and eaten it on the premises which actions, quite apart from the theft, were contrary to express Company policy. It was also alleged that a Company camera had been used without authority at the time of the other offences. After making an investigation and conducting interviews the Company terminated the employment of the two employees as well as the other employee. On the evidence the facts were that Miss Bishop, a full-time employee, whilst working on the `maintenance' shift at the restaurant which commenced at 2.00 am on Friday 23 October 1998, gave entry to Mr Bartlett and the other employee at around 3.30 am. It was between 3.30 am and 5.30 am approximately that the alleged misconduct took place. At 5.30 am one `front' shift employee and one `back' shift employee were due to start work: this involved preparing each of those areas of the restaurant for the daily opening of the business at 6.00 am. On the day in question the other employee was one of those rostered `setup' employees, but, Mr Bartlett was not due to start work till later in the day. A witness for the Company3, Mrs Tania Percy, a Crew Trainer and Party Hostess (which is a supervisory position at the restaurant), who had been employed by the Company for about three and a half years, said she had come to work at about 5.15 am on the day in question in time to start at 5.30 am and prepare for the opening of the doors at 6.00 am. She noticed on her arrival that some of her work had been done already. Miss Bishop, Mr Bartlett and the other employee were drinking coffee at the front counter when she arrived whereas the coffee machine was not due to be turned on until 5.45 am. Mrs Percy said Miss Bishop went to the back of the restaurant and came back with some chicken nuggets which the three employees then cooked and ate. Chicken nuggets were only kept in the freezer which was supposed to have been locked, but, the lock was said to have been broken at the time. Mrs Percy said the other employee appeared to be influenced by alcohol as his movements were noticeably unsteady. She said both he and Mr Bartlett had told Mrs Percy they had been drinking alcohol prior to coming into the restaurant. Mrs Percy also said that later the other employee had admitted to her he had been drinking alcohol on the premises that night: Mr Bartlett had not answered her questions in that regard. Mrs Percy eventually reported these events to an Assistant Manager, Mr Nick McLeod, who had previously asked all employees not to come to work until 30 minutes before starting time. Mrs Percy waited for about two weeks before notifying Mr McLeod so as to allow Miss Bishop to tell him, she said, but, Miss Bishop had not done so. One of the applicants, Miss Bishop, appeared as a witness on her own behalf. She had been employed by the Company for about three and a half years and had experience on all the shifts. Miss Bishop said it was common for employees to come into work well before the shift start times; one reason being that so much work was required it could not all be done by starting time. Contrary to Mrs Percy's evidence, Miss Bishop said Mrs Percy had commenced work that day between 5.30 am and 6.00 am. Miss Bishop said that Mr Bartlett and the other employee had cooked and eaten chicken nuggets, potato fries and chicken pieces taken from the freezer. She also said she saw Mr Bartlett and the other employee taking partly emptied bottles of what she thought were whisky and malibu off the premises on the day. Later Miss Bishop denied that she had been involved in the actions alleged against Mr Bartlett and the other employee. She also claimed that she had received no pay on the termination of her employment apart from her annual leave pay. It was submitted on behalf of the two employees that they had been dismissed unfairly, they had not been given an opportunity to respond properly nor were they warned that their employment was in jeopardy at the meetings held with them by the Company after the alleged events. A number of precedent cases were quoted and relied on in support of the two employees' submissions. Mr Stephen Nicholas, a Director of the Company and an owner operator, said in evidence that he had been advised by an Assistant Manager of the alleged misconduct about two weeks after it occurred. He said he had interviewed the three employees individually and initially they had denied the allegations. Mr Nicholas said he interviewed the three employees for a second time and, whilst Miss Bishop and Mr Bartlett continued to deny any misconduct, apart from some minor admissions, the other employee admitted to the misconduct. Mr Nicholas said that, later the same day, Mr Bartlett had approached him and admitted to the allegations. Mr Bartlett wrote out and signed a statement4 at Mr Nicholas' request which read: "Michael and I arrived at the store around 3 o'clock. We began doing setup, including the filtering. I had been drinking and also continued to while we were doing so. We (Michael, Bec and I) cooked fries, nuggets and chicken patties and ate these in the crew room. We (Michael and I) also took three photos with the polaroid camera, how we had access to the camera, I don't know. We then continued with setup. While doing so, we had drinks of coke and coffee." The three employees were suspended on full pay for about one and a half days whilst the Company investigated the allegations and then the employment of all three was terminated. The Company submitted that the dismissals were warranted because theft was against generally held community standards quite apart from the fact that the misconduct went against clear Company policies in relation to alcohol and food product. The Company also denied that the three employees did not have opportunities to respond to the allegations and alluded to the employee counselling forms used by the Company, the two interviews each, the subsequent discussions and the Company's well known policies. As to Miss Bishop's employment termination pay, the Company pointed to evidence on her final pay slip5 showing that she had been paid fully and properly to that day. The Company rejected the precedent cases quoted by the applicants and pointed out the factors which precluded them from significance in this case. DECISION I am satisfied on the evidence that there had been misconduct on 23 October 1998 at the Company's Invermay restaurant in the morning before opening time and the two employees were involved in the misconduct in the manner alleged by the Company. I find that Miss Bishop did not bring alcohol onto the premises, but, that fact on its own is not significant. I am also satisfied that in terminating the employment of the two employees the Company did not deny them natural justice and in addition to the inherent nature of part of the misconduct, theft, the general misconduct of the two employees justified instant dismissal. On the evidence the Company's policies were clearly notified to the two employees and the procedures and discussions involved with the employment terminations were adequate. Where there was conflict, I preferred the evidence of Mrs Percy and Mr Nicholas to that of Miss Bishop. I also accept that Miss Bishop was properly paid at the time of the termination of her employment and there were no deficiencies. In the circumstances of these applications I do not consider the precedent cases raised by the two employees' advocate to be relevant or compelling. I also consider standards set down in the International Labour Organisation's Recommendation 166 in relation to employment termination have been complied with. For all these reasons I dismiss the applications and I so order.
P A Imlach Appearances: Date and place of hearing: 1 See transcript p.84 |
