T3219
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Federated Clerks Union of Australia, Tasmanian Branch and Myer Hobart
Termination of Employment - harsh, unjust and unreasonable REASONS FOR DECISION This was an application made under Section 29 of the Act by the Federated Clerks Union of Australia, Tasmanian Branch (the Union) for a dispute hearing following the dismissal of an employee of Myer Stores Hobart (the Store) on 14 August 1991. The facts of this case (which were mainly elicited from the employee as a witness) were that a part-time switchboard operator at the Store was dismissed on the grounds that she had contravened the Store's policy by making private telephone calls without permission: they were actually interstate STD calls. The Union claimed there were extenuating circumstances in that the employee, who had been working at the Store for six years operating the switchboard for approximately four hours each day, had been under great stress for family reasons: the Union also claimed that the Store had been indirectly aware of the telephone calls because the employee had spoken to the invoice clerk about "off-charging" the cost of the calls to her. The family problems causing the telephone calls concerned the employee's sister, who lived in Perth, Western Australia and who had been on the verge of a nervous breakdown caused by the sickness of her children and inability to cope. The employee claimed the problem had reached a crisis in late April or early May this year when the series of calls commenced. There was some confusion over the actual period during which the calls took place since an exhibit later produced indicating that they had continued up till as late as 26 July. The employee had also experienced her own marital problems at the time. The Union's claim that at least indirect advice of the calls had been given was not altogether substantiated, in that, it was agreed only that the employee had approached the clerk and left the telephone number with her: what happened between the two employees after that was disputed. The invoice clerk was not called as a witness. The Tasmanian Confederation of Industries (the Confederation) appeared on behalf of the Store and further facts were elicited from a witness, the Store Manager. This included information from the exhibit that there had been 35 calls in the period 25 June till 26 July 1991 and these had cost a total of $252.90. Of the calls, 14 lasted longer than 15 minutes, some extended for 20, 28, 35 and one for 40 minutes. The Confederation endeavoured to show that the Store had a clear policy that all private telephone calls must be made with permission, but I was not satisfied that the policy was verifiably made known to all employees. Nevertheless, on the basis that it was displayed on the pay office notice board and the employee as a witness acknowledged that she would have expected such a policy to be in force anyway, she must be taken to have known that permission was required. This was particularly so because on more than one occasion, as switchboard operator, she had taken part in procedures aimed at monitoring the incidence of private calls. The employee was certainly in a position of trust which she failed to keep. The Store Manager as a witness, said the reason for the dismissal was the breach of the Store policy and the amount of money involved was not all that important. I consider that the length of some of the calls, their interstate nature and the total cost were all key elements in this matter. These factors served to make the employee's actions serious misconduct. Were the telephone calls in question short, local and few in number they could have been the subject of a caution, but not of a termination even through such calls would have breached the Store policy. At the time of the hearing the calls had not been paid for. The Union also claimed that other employees in the Store had made private telephone calls and had not been dismissed and therefore it was unfair to exact such a severe penalty in this case. I was made aware of the details of one other case, but that was certainly not "on all fours" with this case: in any event, even if there were an equivalent case to this which did not result in dismissal (whilst not condoning the inequity) this matter must stand or fall on its own merits and facts. I find that the employee's actions did constitute serious misconduct and I do not consider that any of the mitigating circumstances were sufficient to obviate that fact. The employee has my sympathy. She worked for the Store without reproach for six years and I am satisfied she was the victim of unfortunate circumstances. Some other employer may have been prepared to continue her employment with a warning and some penalty, but even so I am not prepared to interfere with what I perceive to be the Store's right to dismiss in the circumstances. Such action could not be construed as unfair. I decline, therefore, to overrule the decision to terminate.
P A Imlach Appearances: Date and place of hearing: |