T7722
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Matthew Kingston and Spotlight Stores Pty Ltd
Industrial dispute - re termination of employment - alleged unfair dismissal - upheld on the basis of flawed process - no order issued - parties to consider options. REASONS FOR DECISION Miss L Mackey of Counsel for the applicant in her opening submission in this matter alleged the termination of Mr Matthew Kingston (the Employee) from his employment, "was in contravention of the International Labor Organisation Convention on the termination of employment on two grounds, the first ground being that there was not a valid reason for the termination and the second ground being that there wasn't sufficient opportunity given to Mr Kingston to respond to the basis for his termination of employment."1 The termination of the Employee occurred on 1 May 1998 after he had been employed by Spotlight Stores Pty Ltd (the Employer) as a full time salesperson since September 1996. The evidence of the Employee of events leading up to the termination is that on 24 April 1998 two plain clothes police officers came to the workplace and spoke to him about property in his possession which was alleged to belong to the Employer. The Employee accompanied the officers to his home where they took possession of a number of items the majority of which he alleged had been purchased from Spotlight Stores Pty Ltd. Although the Employee did not return to work after the police visit to his home, he did return to work on his usual days in the following week. He described this period as "pretty hair-raising" but no one approached him from management in any official way to discuss anything concerning the visit by the police officers. On Friday 1 May 1998 he was asked over the P.A. system to go to the dispatch area. On arrival at dispatch he met with Mrs Lyn Defoe, Regional Manager for Spotlight Stores (Victoria, Tasmania) and the Hobart Store Manager Ms Kerry Williams. The Employee's evidence of what occurred is recorded in part as follows:- "Miss Mackey xn. And what occurred when you arrived at the dispatch area?............ Kerry was sitting, Lyn was standing and Lyn said - this isn't word for word. Lyn said, we need to have a chat about what's happened and I think I said, yes, you've got that right, or something like that. Lyn said that Kerry had seen the goods that the police had seized and they were informed that I would be charged. I didn't know what with and Lyn didn't specify what with. I think Lyn just said, in light of what's happened we're going to have to let you go. I said, I can't believe this, you letting me go - somebody just playing a nasty trick on me. What do you mean by that?............ I don't know. I didn't really know why all of this was happening. During the week I was thinking, well, what is this all about. Somebody has said something. I thought ex-girl friend or something like that. I don't really know. Why did you think it might have been someone like your ex-girl friend playing a trick on you?............ I'm not really sure. I'd been told that the complaint didn't come from within the store, by Kerry, on Monday morning and - it was just a total surprise to me that it happened. Going back to the meeting, what else was said?............ Lyn said, if it were up to me, it would have been done differently, given legal advice to Spotlight, we're going to have to terminate you. I hope you realise that that's effective immediately. Did she say anything else after that?............ After she told me that I was terminated she said, is there anything you'd like to tell us. Is that the first time you were asked that question?............ Yes. And what did you say?............ I don't think I responded the first time. Lyn asked again, and I said, yes, I would and I said that I was very disappointed in their lack of support, I think I said. I'm not sure. Lyn said, I'm sorry, and I turned around and left the dispatch area. And then what did you do?............ Went and collected my goods and left the building. At any time during that meeting, or before that meeting, were you ever told exactly what it is that they said you'd done?............ No."2 On 4 May 1998 the Employee wrote to the Hobart Store Manager; the initial part of that correspondence reads: "Attention Manager - Spotlight, I am writing in regard to the meeting held between yourself, Lyn, and myself on Friday 1st May. As you are aware, at that point my employment was terminated. I am unsure as to the reasoning behind your decision and would like to request that you express to me in writing the grounds upon which my employ was terminated. At that point in time I was neither charged nor convicted of any offence against Spotlight, and therefore feel that I have been unfairly dismissed."3 In response to the above request the Employee received a termination certificate4 and a letter dated 7 May 1998, which in part reads:- "As stated on your employment separation certificate your employment was terminated due to a serious breach of company procedure. Information provided to us by the Tasmanian Police indicated that a serious breach of company procedures had taken place. During the interview with Ms Lyn Defoe, Regional Manager, you were unable to provide us with any explanation to justify or clarify the situation. In line with company policy, covered in the Staff Agreements as signed by you, your employment with Spotlight was terminated."5 Miss Mackey in summarising the applicants case relied on Section 31(1A) of the Industrial Relations Act 1984 which requires the Commission to take into account Part 11 Standards of General Application, Division A, Justification For Termination of the International Labour Organisation's Convention concerning the Termination of Employment and in particular Article 4 and Article 7 to support her claim that the termination of the Employee lacked substantive and procedural fairness. Article 4 reads:- "The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service." Miss Mackey also referred to a number of decisions to assist the Commission with the definition of a "valid reason". The Employee's evidence going to how he had acquired the goods from Spotlight that had been taken from his home by the police was in part as follows:- Miss Mackey xn. "What happened when you went through the house with the police?............ They were picking up just about everything in the house, asking me where I'd got it from and how long ago and I did tell them what was purchased from Spotlight. There were a number of items purchased from Spotlight, some of which they left, some of which they took. What did they take?............ They took manchester from my bedroom that was actually on my bed at the time. They took a pillow that was also on my bed. They took coloured bottles. They took oils. All these things were in my bedroom- a knife-block set, three rugs that were in a shed down in the back yard, a green couch throw that was on a small couch in my bedroom, a cream couch cover that was on a couch in the lounge room. I think that's around about it. Did you own all those items?............ Yes, I did. All except for one rug, which belonged to my brother. And were all those items purchased by you from Spotlight?............ All of them, except for the knife-block set, which I did explain to them wasn't from Spotlight. Where was that from?............ As I said to them, I don't know. I can't exactly remember where I got it from. It was either House or Habitat of Hobart and it was around about six months before this incident happened, so I'm not 100 per cent sure where I got it from. As an employee of Spotlight, was there a particular procedure available for purchasing items from Spotlight?............ Yes, there was. Anything you wanted to purchase, you took to the lay-by area and either paid for it there as you finished your shift and go home with it or you left it there until the end of the day and then take it. And did you get any entitlement as an employee of Spotlight for purchasing goods?............ Yes, 15 per cent staff discount. Was that a procedure that you followed when you purchased the items that you mentioned were taken by the police?............ For most of them, yes. For others of them?............ No, that wasn't the procedure that I took, no. What was the procedure that you took when you purchased those other items?............ There was a procedure - I don't know whether it was within any other departments but it was within furnishings, that if there was damaged stock, an abundance of stock or old display stock or something like that, you used your own discretion or looked up the cost price and negotiated a price from there. So who would you negotiate the price with?............ Kathy Maisey or whoever was there at the time, but usually Kathy. And Kathy's your - I think you said earlier - ?............ My superior. Would ever the reverse happen between you and Kathy? She buy something and you negotiate the price with her?............ Yes. What would happen after the price was negotiated?............ Well, it would usually be at the end of the day, so you'd just pretty much wander home with it. Would you pay the money - ?............ Yes, there'd be a transaction and then you'd just go home with it, yes. That's pretty much what happened."6 Miss Mackey submitted that as the above evidence was effectively not challenged I should find that there was not a valid reason for his termination. The difficulty that I have in this matter is that the Employer did not call evidence from staff who could have confirmed or denied the above evidence of the Employee. The Employer gave evidence that the police were investigating the Employee in relation to the Spotlight goods at his residence and had advised management not to get involved. The Employer's position on this matter is best described in the following responses of Mrs Evelyn Joy Defoe the Regional Manager for Spotlight in cross examination by Miss Mackey:-
It is clear from the above that a police investigation took place and ultimately charges were laid against the Employee. It is also clear that the Employer conducted an investigation of the circumstances surrounding the alleged purchase by the Employee of Spotlight goods found by the police at his home. However, no evidence was presented by the Employer in this case which would allow me to make a finding or reach a conclusion that the Employee had been fairly dismissed for breach of company policy. The fact that the Employee has been charged by the police does not make him guilty of an offence, that decision is yet to be made in the appropriate civil jurisdiction. While I appreciate the concerns of the Employer not to prejudice a police enquiry the reality is stealing charges made by the police are a different consideration to the ones required by the employment relationship to prove misconduct. The Employer cannot rely on a police enquiry or charges to justify a dismissal. It must go through an appropriate process and prove, if necessary to this Commission, that there has been a breach of company policy, in other words, prove that the Employee has stolen from his employer, this was not done. Article 7 reads:- "The employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity." From the transcript excerpts above and from my conclusions going to the merit it is clear that the Employee was not afforded an opportunity to defend himself. While he was given an opportunity to offer explanations, he was not told of the allegations against him. He chose not to say anything in the absence of specific allegations. Mr Ireland in defending the Employer's decision not to be specific about the reasons for dismissal relied on the concluding words from Article 7 "unless the employer cannot reasonably be expected to provide this opportunity." He submitted that in the light of the police enquiry and their request of the Employer not to get involved in their enquiry it was reasonable for the Employer to not be specific about the allegations. He submitted that in any case, they (the allegations) were well known to the Employee but he chose not to volunteer information. He further submitted that the termination was in accordance with Clause 15 of the Retail Trades Award. It is not contested that the Employee received all of his award entitlements and was also paid a weeks pay in lieu of notice. Whether the Employer should have waited until the outcome of the police enquiry was known before it took action of its own in this case is a matter of conjecture. However, there is no doubt that once the police enquiry had finished and charges were laid there was in my view nothing preventing the Employer conducting a proper investigation in this matter. This would obviously include a clear spelling out of the allegations to the Employee in a proceduraly fair and proper manner. Following this process a decision could have been taken on the facts established, irrespective of the outcome of the police proceedings. This did not occur thus leaving me to conclude that the Employee was denied procedural fairness and was not provided with an appropriate opportunity to defend himself against the allegations made. Having found accordingly I must now consider a remedy. The obvious course would be to order re-instatement of the Employee. However, both parties submitted that re-instatement was not a practical option. Miss Mackey submitting that the Employee believed the honesty and trust so necessary in the employment relationship in this case has been eroded irreparably. I accept the submissions of the parties that re-instatement is not practical. In relation to re-instatement I make the observation that stealing from ones employer is one of the more serious misconduct charges that can be made. It would therefore be unacceptable if I upheld a wrongful dismissal claim on the basis of flaws in the process and awarded compensation and then in time a civil trial resulted in the Employee being convicted of stealing. I am not prepared to allow the possibility of this scenario unfolding. Although the employment misconduct test and the civil case are different tests there is no doubt that in this case the Employer has dismissed the Employee because of the belief that the Employee has stolen company property. Having regard for the above I decline to issue an order in this matter and advise the parties of the following options:-
After either one of these scenarios I would be prepared to consider the making of an order to settle this matter. Of course it is still open to the parties to negotiate a settlement. I make it clear to the parties that I have found that the termination process was substantially flawed and should the police charges be dismissed the Employee has a strong prima facie case for compensation.
J G King Appearances: Date and place of hearing: 1 Transcript page 1 |