T6712
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Miss Emma Colleen Whelan and Rettke Photographics & Video
Industrial dispute - termination of employment - termination unfair - to be relisted to consider remedy REASONS FOR DECISION This application, lodged by Miss Emma Colleen Whelan (the applicant), pursuant to section 29 of the Industrial Relations Act 1984, was for the purpose of settling a dispute with Rettke Photographics & Video (the respondent) relating to termination of employment of the applicant, who had been employed by the respondent for some three and a half years. During the course of the hearing the Commission, on two occasions, encouraged the parties to settle the dispute through negotiations. However, for whatever reason, a settlement could not be achieved. The applicant commenced her employment with the respondent on the 10/5/93, apparently as a full-time employee. On or about the 22/7/94 her contract of employment changed to that of a casual. I was told, during the course of the hearing, by Mrs Agatha Rettke, that the applicant was a "permanent casual" working 36-38 hours per week. The bulk of the evidence in this matter came from evidence given under oath by the applicant and Mrs Agatha Rettke (the employer) for the respondent. A summary of the evidence surrounding this dispute is as follows: Some time in November 1996 the applicant sold a photo album to a customer. It was burgundy in colour, had a little bow on the side and it had "Our Wedding" written on it. This gave the applicant the idea to give a similar album to her friends as a wedding gift. After serving the customer the applicant asked the employer if there were any more of the albums in stock, and if so, whether it was possible to put one on lay-by. She wanted one exactly the same as the one she sold the customer. The employer did not know if any were left in stock and so she instructed the applicant to have a look in the store room. The applicant said the albums were packaged in white cardboard boxes and, from her experience, there was, normally, only one album per box. She said that the content of the boxes were written on the outside and, in this particular case, she picked the one that described the colour as "burgundy", assuming it was the one she wanted. The applicant never examined the contents of the box. She just took it to the employer and sat it on her desk for the purpose of enabling the employer to complete the necessary paperwork to place it on lay-by. However, she did place a little sticker on it that said, "Don't sell put on lay-by (Emma)". Later on that day the applicant asked the employer had she done anything about the lay-by. The employer said that she had not because she was too busy. A couple of days later the applicant noticed the box containing the album was not on the employer's desk and she assumed that the lay-by had been written up and she asked the employer if that was so. The employer responded by saying "No". It was at that time that the employer decided to do something about the lay-by and she picked the box up from the floor, where it was sitting. Unbeknown to the applicant, the employer opened the box, because it seemed rather heavy. On opening the box she found that it contained two albums. This, the employer said, was undertaken when the applicant went to get a drink from the coffee shop nearby. During this time the employer spoke to her husband, Mr Peter Rettke, the person carrying on business, about the issue, because she was suspicious of the applicant. She said that after showing Peter, he said "You just wait and see", and the employer said "OK, I won't say anything", and the employer decided to wait until the applicant picked up the lay-by. The employer said that she did not say anything to the applicant when she returned from the coffee shop and she (the employer) just wrote out the information on the lay-by card, after having first asked the applicant to write her name and address on another sticker. It was at this time the applicant removed the first sticker that said "Don't sell put on lay-by (Emma)", put it in the rubbish bin and then stuck the new sticker on the box. The new sticker said "Emma Whelan c/-Rettke lay-by 13/11/96". The applicant paid a $10 deposit at that time. After the paperwork had been completed the applicant was requested by the employer to take the box out the back and place it where the lay-by's were usually kept. The fortnight that followed, saw the applicant on sick leave. She returned to work on Monday, 23 December 1996, worked the Tuesday, had Wednesday and Thursday off (being Christmas Day and Boxing Day) and returned to work on Friday 27 December 1996. On 27 December 1996, about 2.00 pm, the applicant asked the employer if she could pick up her lay-by, because she needed the album the following week, as she was going to see her friends. The applicant said the employer went out the back and collected the lay-by and the lay-by card and when she returned she placed the box on her desk, opened it and looked at the card. The employer opened the box, in the presence of the applicant. The applicant looked inside the box and noticed that it contained two albums. At this point the evidence slightly differed. The applicant maintained that she said to the employer "How come there's two albums in the box?"1 and she said the employer responded by saying "You tell me. This isn't the first time."2 The employer maintains, however, that the applicant said "Oh, buy one, get one free"3 and that she (the employer) responded by saying "Look, Emma, this is not your first time to do it".4 The applicant said that the comment made by the employer was of such a tone that she understood the employer to be accusing her of stealing. She said, after that statement, that she shook her head in disgust because it was going through her mind that other employees had been accused, by the same person, of stealing. The applicant, on closer examination of the albums, found they differed from that which she thought she had put on lay-by. She said that she had always wanted an album with "Our Wedding" on it. The employer then suggested that the applicant should try and find the specific album she wanted. Upon that suggestion, the applicant looked in the front of the shop and in the store room. She could not find a burgundy album, however, she found a grey one with "Our Wedding" written on it, which she took it back to the employer and completed the lay-by for that album. After that the employer demanded to see the applicant's mother. Later on that afternoon, the applicant's mother and then, at a later hour, the applicant and her father had a discussion with the employer. During those discussions it was alleged that the employer claimed she had cameras around the store and the applicant was seen acting dishonestly, or, as the applicant said, that was the implication. The applicant's father asked to see the video, but that never eventuated. During her evidence, the employer denied the use of a video camera in the shop. The applicant stated in evidence that in the three and a half years she had been with the employer she had never been dishonest in any way. The applicant said that, in her presence, her father asked the employer, was the applicant being dismissed for her dishonesty? She said that, after an argument, the answer to the question was "Yes". On the 2 January 1997 the applicant returned to her previous place of employment and requested the employer provide her with a Separation Certificate. That certificate stated, as the reason for the employee's employment being terminated, that there was "not enough work"5. When asked why that reason was placed on the Separation Certificate the employer responded by saying "What should I do?" She said she asked Mr Rettke and he said "You can't say she's stolen things because it's not out of the shop."6 FINDING Whilst the evidence could have been a little clearer in respect of the actual termination itself, nevertheless, I have arrived at the conclusion that, on balance, the employee's employment was terminated by the employer. This was also later confirmed in correspondence, dated 12 March 1997, by Mr C J Bartlett (Barrister and Solicitor), for the respondent, to Messrs McGrath & Company, Barristers and Solicitors, for the applicant, in the following terms:
I find it of concern that the employer would enter into a lay-by agreement with the applicant, knowing the box contained two albums and this was not brought to the applicant's attention at the time the lay-by was executed, especially when the applicant only wished to lay-by one album of a specific design and colour As can be seen from the evidence, when it was brought to the applicant's attention that the box contained two albums, she declared that they were different to that which she thought she had put on lay-by. She did not accept the lay-by, but chose an album with the words "Our Wedding" on it, from another part of the store (albeit a different colour) and then finalised the lay-by. Having carefully considered all the evidence, I have concluded that the action of the respondent in dismissing the applicant "for attempting to steal a second photograph album" was based totally on, what I would describe as, unsubstantiated suspicion; without any facts being established by way of an investigation, and this denied the applicant a proper opportunity to prove her innocence. For the abovementioned reasons I find that the dismissal was unfair, and I decide accordingly. REMEDY Mr Griffiths, for the applicant, presented submissions to suggest that the employer/employee relationship had broken down, and if there was a finding by the Commission that the dismissal was unfair, then it would be difficult for the applicant to be reinstated to her former position with the respondent. Very little evidence was put to the Commission about an alternative remedy and, in any case, it would be difficult for the Commission to arrive at an appropriate settlement given the lack of employment details presented during the course of the hearing, e.g:
these are but to mention a few. Given the foregoing, this application will be relisted for hearing in Burnie on Friday, 13 June 1997 at 12.30 pm to hear detailed submissions from the parties as to the appropriate remedy to settle this industrial dispute. It is my strong recommendation that the parties undertake pre-hearing discussions prior to 13 June 1997. If a settlement is reached prior to the hearing date, then the Commission should be notified as early as possible and the matter will be withdrawn from the list.
R J Watling Appearances: Date and place of hearing: 1 Transcript page 8 |