T12935
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Adam Anthony Wisby and Grower's Choice
Industrial dispute - unfair dismissal - warnings - order issued REASONS FOR DECISION [1] On 30 April 2007, Adam Anthony Wisby, (the applicant), applied, pursuant to s29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with Grower's Choice, (the respondent), arising out of a dispute in relation to termination of employment. [2] A hearing commenced at Hobart on Wednesday 23 May 2007. Mr D Smith sought and was granted leave to appear for the applicant and Mr D Hantke appeared for the respondent. An unsuccessful attempt was made to settle the matter through the conciliation process. The hearing continued on Thursday 5 July 2007. On this occasion the respondent was represented by Mr J O'Neill. BACKGROUND [3] Mr Daryl Hantke owns and operates a business known as Grower's Choice. He operates from South Australia and commutes to Tasmania. Mr Adam Wisby was employed as the manager of his business at Moonah in Hobart. He was employed from November 2005 until March 2007 at a salary of $35000 per annum. There were two employees at the store: Mr Wisby and the storeman, Mr Dane Cordwell. Mr Wisby was responsible for the retail section, supervision and the general running of the operation. [4] On 19 March 2007 there was an overnight robbery at the business premises and almost $7000 in cash was stolen. Mr Wisby arrived at the premises at about 9am. Mr Hantke travelled from Adelaide to Hobart later that day. Upon his arrival at the premises there was a discussion, which lasted about ten minutes, culminating in the termination of Mr Wisby's employment. The applicant claims that Mr Hantke had already formed the view that the robbery was an "inside job" and that the applicant was involved in the crime. Mr Wisby claims that he was summarily and unfairly dismissed. He contends that there had never been any concerns raised regarding his performance, that he received no counselling regarding his performance and that no warnings were ever issued. [5] The respondent's view of the events differs. Mr Hantke contends that the applicant's work performance was poor and that he had concerns about: absences from work without evidence of reasons for absence; low sales figures; poor supervision; excessive discounting; failure to follow procedures; inappropriate internet usage; and misappropriation of petty cash. He maintains that these concerns had been raised a number of times and he had informally counselled Mr Wisby and told him that he needed to improve his performance. Mr Hantke alleges that the robbery occurred as a result of Mr Wisby negligently failing to lock a roller door and to secure cash as directed and that the termination of employment was the culmination of a number of issues regarding conduct and performance, about which he had issued warnings. [6] The issues in dispute include whether or not a series of warnings had been issued to Mr Wisby and the reason for the dismissal. The parties are agreed that there was a lack of procedural fairness at the time of the termination of employment. EVIDENCE For the Applicant Adam Anthony Wisby [7] Mr Wisby gave sworn evidence, in which he testified that he had never been warned that his employment was in jeopardy. He said that on three or four occasions there were informal discussions in which Mr Hantke explained how the business could be better run in relation to the ordering of stock from the wholesale section. An aspect of his job was to create purchase orders for the storeman, Mr Cordwell, to pick up and then bring to the shop area. Sometimes there was a lag time which meant stock was not on the shelves in the shop. Mr Wisby's evidence was that those were discussions only, not warnings. [8] Mr Wisby said that Mr Hantke came to Tasmanian approximately once a month or once every two months, staying between four days and a week and a half. Over the 18 month period of his employment Mr Hantke had come about 10 or 12 times. On two or three occasions Mr Hantke spoken to him about his performance:
[9] When cross-examined, he said that the conversations were "only generalised chats".
[10] He said that he did not take them to be a warning that he should "lift his game". [11] In relation to the events of 19 March 2007, Mr Wisby's evidence was:
[12] In cross-examination, Mr Wisby said that he was "100 per cent sure"4 that Mr Hantke had used the words "inside job". [13] He denied that he became abusive or threatening toward Mr Hantke:
[14] He said that he did not recall Mr Hantke instructing him to put the cash takings in a different place a few weeks prior to the robbery.
[15] Mr Wisby's evidence was that he had approximately six days off work during the 18 months of his employment, mainly because of migraine headaches. He said that Mr Hantke had never spoken to him about the absences. [16] According to Mr Wisby, there was no workplace policy regarding internet usage. There were two computers with internet access, one in the wholesale section and one in the retail. He had not been told there were any limits to their use. Mr Hantke had never spoken to him about his use of the computer. Mr Wisby denied ever having viewed or downloaded pornography. [17] Mr Wisby was shown records of internet activities and email transactions, including relating to his membership of hustler.com, entitling him to download their DVD library. One of the emails reads:
[18] Mr Wisby agreed that he had made the email transaction. He agreed that the claim he made to being an invalid pensioner was not true and that at the time he was employed by Growers Choice. He said:
[19] Mr Wisby was referred to a computer file of a screen dump entitled Drunk, Sex, Orgy. He said that he ad "no idea" who created that file. He said he did not have exclusive access to his computer and that both he and Mr Cordwell used the two computers that were on site. He agreed that he was alleging that somebody else had created that folder. [20] Mr Wisby was aware of a time when Mr Hantke believed that he had misappropriated cash from the till. He said that he had repaid $26 in order to:
[21] Mr Wisby's evidence was that he was authorised to give discounts of a maximum of 10 per cent to valued customers. He denied that he had ever been told that he was giving discounts that were too large. For the Respondent Daryl James Hantke [22] On the first day of the hearing, Mr Hantke told the Commission, on the record but not under oath, that Mr Wisby had worked the weekend before the break-in and was responsible for securing the roller-door and for the hiding of takings. He said that the roller-door was not forced from the outside and that the only way the premises could have been entered was for the roller door to be left unlocked so that it could be raised from the outside. He said that the reason for the dismissal was gross neglect. [23] In a written statement10 Mr Hantke said that he employed Mr Wisby as manager in November 2005. He said that he had warned Mr Wisby and another employee, Mr Cordwell, on at least three occasions that if their work performance did not improve their employment would be at risk. [24] He said that on Monday 19 March 2007:
[25] In his oral evidence, Mr Hantke testified that:
[26] Mr Hantke's evidence was that, after examining the door, he did not accuse Mr Wisby of being involved in the robbery, but of being negligent in failing to properly secure the premises and the cash:
[27] He said that Mr Wisby had asked him if he was being accused of theft:
[28] In relation to the three warnings he refers to in his written statement, Mr Hantke's oral evidence was that they concerned such issues as stock control. His evidence was that he generally spoke to both his employees together regarding their performance.
[29] When cross-examined, Mr Hantke said the warnings were given:
[30] Mr Hantke said that he had never said to his staff "I am going to fire you if you do - don't do this up to this standard."17 [31] Mr Hantke said that he was concerned that Dane Cordwell was often working in the retail section of the business, accounting for 40% of sales whilst employed as a storeman. The sales summaries18 demonstrated that Mr Wisby was not at work on some days and Mr Cordwell made the sales. Mr Hantke said that he came to Hobart from South Australia about once every one or two months, for three or four days each time. He had access from South Australia via the computer to ongoing records of sales and other aspects of the business. He had never raised the issue of the sales percentages of each of his employees. He said that he spoke to Mr Wisby about the amount of time Mr Cordwell was in the shop, and asked him to take care of it. [32] He said that Mr Wisby gave a discount on 766 sales of $3481 and Mr Cordwell gave a discount of $883 on 502 sales. In his view Mr Wisby gave an "obscene" amount of discount. [33] Mr Hantke testified that Mr Wisby was supposed to ensure that the store was fully stocked. He suggested that Mr Wisby was not performing this task adequately, resulting in him needing to top up stock from the warehouse, adding it to the purchase order later. He said that he had brought the problem to Mr Wisby's attention."...I've seen this happen on a number of occasions and he's been told to stop it."19 [34] According to Mr Hantke, he had instructed Mr Wisby to stop downloading pornographic material from the internet.
[35] Mr Hantke said that the computers were linked and that he had given a general instruction to both employees. He said that his policy in relation to internet usage was not to download anything because it cost money - it was okay to surf but not to download. That had been communicated to his staff. [36] Mr Hantke was of the view that Mr Wisby had misappropriated petty cash. He described two incidents. He said that on the first occasion Mr Wisby was not at work and there was money over, which Mr Cordwell left with the weekly takings. Mr Hantke said that he rang Mr Wisby the next week:
[37] The second occasion Mr Hantke referred to concerned a time when he purchased coffee and tea out of his own pocket, amounting to about nine dollars, for which he left the receipt. The system used was that petty cash expenditure was deducted from takings. The takings were down by nine dollars.
[38] Mr Hantke's written statement said that he was unable to trust Mr Wisby because of "unnecessary lies". In his oral evidence, he gave as an example an occasion when Mr Wisby said he had to leave to pick up his daughter from school, which proved not to be the case, and the occasion of him claiming to be an invalid pensioner. He said that he was unable to put his trust in the man who was in charge of his business. He agreed that he did not know of the invalid pensioner claim until after the termination of employment, but said that just confirmed the fact of the lies. [39] Mr Hantke's evidence was that Mr Wisby had two days off work with a migraine headache during the stocktaking period and on another occasion he was allegedly in hospital, but no medical certificates were provided, although he did obtain one after the event. Mr Hantke said:
[40] Mr Hantke said that Mr Wisby did get a medical certificate in relation to the alleged hospital stay, but it was from his own doctor, not from the hospital. [41] When cross-examined, Mr Hantke said that the takings for the business were approximately $40,000 a month. His criticisms regarding honesty related to two occasions totalling $35. He said that he was certain that it was Mr Wisby, because he had admitted to it by paying it back. He agreed that during the period of Mr Wisby's employment he would have been responsible for takings in excess of $600,000. Dane Kenneth Cordwell [42] Mr Cordwell's written statement24 said that he had been employed by Growers Choice as a storeman for about 12 months and that he and Mr Wisby had been told on at least three occasions that they needed to improve their work performance and that if they did not do so then their employment was at risk. [43] In his oral evidence Mr Cordwell described what had occurred on the day of the robbery. He collected Mr Hantke from the airport and then drove him to the business premises. Mr Hantke had seemed quite angry when he picked him up and desperate to know what had happened.
[44] Mr Cordwell's evidence was that when they got to the premises Mr Hantke:
[45] Mr Cordwell said that there was little conversation between Mr Wisby and Mr Hantke at that stage, but once inside there was an exchange between them.
[46] In relation to the warnings referred to in his written statement, Mr Cordwell said that they were along the lines of:
[47] When cross-examined, Mr Cordwell said he could not recall exactly what was said, but:
[48] His evidence was that both he and Mr Wisby had not always followed Mr Hantke's instructions in relation to the purchase orders and the handling of stock. [49] In relation to the two incidents of alleged dishonesty regarding Mr Wisby, Mr Cordwell was unaware of one of them until after the event, but he recalled the incident involving excess cash left over at the end of the day. He said that he rang Mr Hantke and asked what he should do with it and was told to put it in with the day's takings. He made a note of it and told Mr Wisby on the Monday, when the money seemed to have disappeared. [50] Mr Cordwell said that he had accessed pornographic material on the Internet on a couple of occasions. [51] He said that his relationship with Mr Wisby was friendly. Most of the time it was only the two of them on the premises and they would help each other out at times. SUBMISSIONS Mr Smith for the Applicant [52] Mr Smith submitted that it was clear that Mr Hantke, upon hearing of the robbery and before arriving in Hobart, had formed the view that Mr Wisby had somehow been involved in the break-in and, for that reason, he summarily terminated Mr Wisby's employment. Mr Hantke has now changed his position and has offered other explanations for the termination, saying that Mr Wisby had failed to lock the door, enabling the robbery to take place, and that it was the "final straw" in a poor employment relationship. [53] Mr Cordwell's truthful evidence was that Mr Hantke was very angry [about the robbery] and he thought he was going to be sacked too. [54] In Mr Smith's submission, Mr Wisby was never aware that there were any issues with his employment. He was never formally questioned, reprimanded or told that his performance was deficient. He was never given any opportunity to explain himself or defend himself. He was never given the opportunity to be represented by a third party. He was given no opportunity to respond to any of the allegations that have arisen subsequent to the termination of his employment and during the course of the hearing. [55] The Act requires at s30(5) that:
[56] Mr Smith said that there is a requirement that an employer explain to an employee in clear and unambiguous terms what any difficulties are. Mr Hantke had his own idiosyncratic style and he might have thought that he got through to the employees but that was not the case with Mr Wisby. What he was doing was attempting to motivate his employees, which is not the same as a warning. He said that a warning needed to be unambiguous, and, clearly, this wasn't. [57] In the case of the claimed inappropriate use of the internet - all that was presented by way of evidence was the download of one email, of which Mr Hantke was unaware until after the termination. In addition, there was no policy in place that prevented Mr Wisby from accessing that site. We do not know the nature of what was accessed, there is no evidence showing that. Mr Cordwell has given evidence that he has viewed pornography, but if it is a sackable offence, Mr Cordwell has not been sacked. There is a file labelled Sex or Orgies, but there is no evidence as to when it came into existence. It could have been Mr Hantke, or Mr Cordwell or the previous storeman who created the file. [58] Mr Smith said that in relation to the employer's claim of lack of attendance at work on the part of the applicant, the evidence showed only six days of sick leave in 18 months. The employer also claimed that Mr Wisby gave excessive discounts, but the evidence was that he was entitled to give discounts of up to 10 per cent and the figures show that only 3-4 per cent was given. In relation to the claim that Mr Wisby failed to follow procedures, on Mr Hantke's own admission, he never properly confronted his staff over that. He did not warn them. He cajoled them to try to improve their work. [59] The alleged misappropriation of petty cash was given a high profile during the case, but the evidence showed that Mr Wisby was put in charge of running the business for three weeks of every month for 18 months with a cash turnover of over $600,000. According to Mr Smith, it is remarkable that Mr Hantke placed such faith in Mr Wisby if he had concerns about his honesty concerning an amount totalling $35. The fact that Mr Wisby paid $29 to Mr Hantke is not an admission that he took the money, it was the responsible action of a supervisor. In regard to the other $9, Mr Hantke seems to be the only person with any knowledge of that. Mr Wisby was not cross-examined about it. This is a desperate reconstruction to create a basis for sacking Mr Wisby. Concerning the "unnecessary lies" referred to by Mr Hantke, if they are of sufficient concern, then they should have been raised at the time, and not left until this forum a long time later. Mr Hantke says that he suspects Mr Wisby of using the excuse of migraine headaches to avoid work, but when Mr Wisby was asked for a doctor's certificate he went and got one. [60] The Act, at s30(7) provides:
[61] In Mr Smith's submission, there was no evidence to suggest that Mr Hantke could not reasonably have been expected to give such an opportunity to Mr Wisby before he dismissed him. [62] Section 30(8) provides: "An employee responding to an employer under subsection (7) is to be offered the opportunity to be assisted by another person of the employee's choice." That did not happen. [63] Mr Smith referred to B-iLo and Hooper (Bi-Lo).30 He said that there was never a clear, unambiguous allegation made to Mr Wisby and there was never an opportunity to respond to any allegations. There was no opportunity for representation by a third party. Mr Wisby was summarily dismissed on the day. [64] Mr Smith said that Mr Hantke has his own rules, but the Act is intended to provide a standard approach to ensure that everybody is dealt with fairly and appropriately. Mr O'Neill for the Respondent [65] Mr O'Neill submitted that the employer had a valid reason to terminate Mr Wisby's employment. The employer denies dismissing him because of the robbery of 19 March, rather, it was the result of a number of incidents, including poor performance, misconduct and neglect, which had eroded the trust and confidence necessary in an employment relationship, culminating in the events of 19 March, which were "the straw that broke the camel's back." [66] According to Mr O'Neill, the dismissal was a culmination following a build up of events causing frustration on the part of Mr Hantke. On that day Mr Wisby was the aggressor, he had already made up his mind that he was going to be fired. Mr Hantke fired him for neglect, he saw the roller-door and it was clear to him that the door had not been locked, it was not broken, it had not been forced open. Mr Wisby had again failed to follow instructions, this time regarding locking the door and hiding the takings. Failing to follow instructions is a serious matter, which could warrant dismissal. On that occasion, Mr Wisby was abusive and threatening toward Mr Hantke and it was Mr Wisby who initiated the conversation in relation to the termination of his employment. Mr Wisby's confrontational approach gave him no opportunity to offer any responses to Mr Hantke. However, there was a valid reason in accordance with s30(3) of the Act, relating to performance, neglect and misconduct. Whilst acknowledging some procedural shortcoming, the circumstances of 19 March mitigates to a significant degree the ability of the employer to provide the employee with the opportunity to be represented and to respond. [67] Mr O'Neill said that Mr Wisby was warned about his poor performance on a number of occasions. There were a number of incidents that, on their own, would have warranted dismissal. The evidence was that there were discussions about performance. Mr Cordwell's evidence showed that those discussions were about the employees needing to "lift their game". If that was understood by the storeman, then it is not inconceivable that Mr Wisby would understand the same thing. [68] In Mr O'Neill's submission, the Commission is required, pursuant to s30(2) of the Act to ensure that fair consideration is accorded to both parties and that all of the circumstances are taken into account. In support of that, Mr O'Neill relied on Stacey Lee Kaine and Darren and Emma Harding T/A Hairworld (Kaine)31 Mr O'Neill said that the Commission should take into account the fact that it is a small business. In Kaine Abey C, at paragraph 68 said:
[69] Mr O'Neill, whilst conceding that there were procedural shortcomings, urged the Commission to take into account the size and nature of the business. He argued that, had proper procedures been followed, then the amount of time in which it would reasonably be expected that the employment relationship would come to an end would have been no more than one month. FINDINGS [70] The parties are agreed that the employer dismissed the employee and that there was a lack of procedural fairness at the time of the dismissal. [71] The applicant claims that he was summarily dismissed on the suspicion that he was involved in some way in the robbery of the premises. The respondent claims that the employee was unsatisfactory generally, was dishonest, had received a series of warnings, and that the events surrounding the robbery were merely the "final straw" and that the dismissal, although procedurally flawed, was for a valid reason. [72] The witnesses gave widely differing accounts of the same events. [73] Mr Hantke presented as a volatile and verbose witness, with an inclination to suspect the worst of his staff. It is likely that he was a volatile, verbose and suspicious employer. [74] I formed the view that the applicant, Mr Wisby, was a witness anxious to present himself in the best possible light. He described himself as an "excellent" manager who had "transformed the shop." I think that he was not such a good employee as he thought he was, nor was he such a bad employee as Mr Hantke claimed. If he were, then it is extremely unlikely that Mr Hantke would have continued to employ him as manager for 18 months. [75] Mr Cordwell impressed as a witness of truth. It is a difficult situation for an employee still in the employment of an employer to give evidence in the unfair dismissal case of a fellow employee with whom he had had a friendly relationship. The "discussions" in relation to work performance conducted by Mr Hantke were discussions that involved both Mr Cordwell and Mr Hantke. Mr Cordwell freely admitted that the employees did not always follow instructions and he took those discussions to be an indication that if they did not "lift their game" then their jobs would be in jeopardy. Mr Wisby's evidence was that the discussions were just general discussions about ways to improve work. Mr Hantke admits that he gave no formal warnings and did not actually say that they would be dismissed if their work did not improve, but, he says, they both should have got that message. In my view, the fact that Mr Cordwell interpreted the discussions as informal "warnings" does not mean that Mr Wisby would necessarily have done the same. Unless warnings are given clearly, unambiguously and unequivocally, then an employer has no guarantee that they will be heard as a warning. Having heard all of the evidence, and having observed the witnesses, I am of the view that the "discussions" were general exhortations to improve, taken to be a warning on the part of Mr Cordwell, but not regarded as any more than instructions on how to perform the work on the part of Mr Wisby. Mr Hantke's evidence showed that even he didn't know what they were. He said at paragraph 719: "Because I've said to them on so many occasions, it's hard to define which was an official warning and which one wasn't." In my opinion they have now been construed as warnings in order to support the contention that the alleged failure to secure the door to the premises was the "last straw" following a series of warnings, thus justifying the termination of Mr Wisby's employment. [76] I have concluded that the reason for the dismissal was the fact of the robbery itself. That would not be a valid reason if the robbery were unrelated to any involvement or action on the part of the employee. [77] Mr Cordwell's evidence was that he collected an angry Mr Hantke from the airport. So angry, in fact, that Mr Cordwell thought he would be sacked too. As I have already said, Mr Hantke presented as a volatile witness. He was angry about the robbery even before he examined the roller-door. Mr Hantke's evidence was that "security" had already told him that the roller door had not been forced and that it had been left open from the inside. I think it probable that Mr Hantke had decided even before arriving in Hobart that a member of his staff was responsible for the store being burgled, either as an accomplice, or through neglect. Once he arrived at the premises, things happened very quickly. Mr Hantke told the Commission: "...Adam's first words to me were "They've done a number on the door. The police said they've broken in, they've done a number on the door" and I've gone, "Bull-shit, it hasn't been forced, it's been left open from the inside." [78] Mr Hantke said that he did not accuse Mr Wisby of taking the money. Mr Wisby said Mr Hantke said it was "an inside job". Mr Cordwell said he did not recall Mr Hantke directly accusing Mr Wisby "as such but the question was asked." He said that both Mr Wisby and Mr Hantke were "pretty angry". I think it likely that Mr Hantke did say something to Mr Wisby to indicate that he thought it was an "inside job". Clearly, Mr Hantke had formed the view that his staff were responsible in some way. He said in his evidence: "...at that particular time I guess I was more concerned about my staff, their honesty; how the place got left to be in a situation that the door could be lifted from the outside...". I have no doubt that it was a heated exchange between Mr Hantke and Mr Wisby; this was confirmed by Mr Cordwell's evidence. There may be some confusion about whether there was an accusation that it was an "inside job" or whether the references were to the door being left unlocked on the inside, either way Mr Wisby, probably correctly, construed Mr Hantke's comments as being an accusation of involvement in the robbery. Mr Wisby's evidence was that he asked Mr Hantke if that meant he was going to be sacked and Mr Hantke said "yes, get your keys, grab your stuff and go". Mr Hantke agrees that he dismissed Mr Wisby. Mr O'Neill submitted that it was Mr Wisby who did not provide Mr Hantke with the opportunity to invite him to give a response to any accusations. However, it is the employer's responsibility to provide the employee with that opportunity. [79] Mr Smith referred to Bi-Lo; in that case the Full Commission of the South Australian Industrial Relations Commission said:
[80] The more serious the allegation and the graver the consequences, the more thorough the investigation should be. In this case the applicant was accused of, at the very least, extreme negligence resulting in serious loss to his employer, and, at the most, involvement in a criminal activity. There should have been an investigation, he should have been given the opportunity to respond, and he should have been given the opportunity to be represented. The last two are legislative requirements. This, of itself, renders the dismissal unfair and I so find. There was no investigation whatsoever. In such serious circumstances it was unfair to dismiss Mr Wisby before there had been any investigation as to his role, if any, in the break-in, and as to whether or not he had left the door unlocked. I agree with Mr Smith that there was no evidence to suggest that Mr Hantke could not reasonably have been expected to provide Mr Wisby with the opportunity to respond to any allegations. [81] I observe that the Commission was not required to make any determination as to the actual circumstances of the robbery or as to whether or not there was any "inside" involvement. It seems that Mr Wisby was never asked before being dismissed whether or not he had secured the door nor was he asked that question during the hearing. I make no findings as to whether there was any involvement in the robbery on the part of either of the employees, nor have I been asked to do so. [82] In respect of the other allegations regarding Mr Wisby's conduct as an employee, I find no substance to the allegation concerning malingering; the evidence supports Mr Wisby's testimony that his absences from work were due to migraines. The numbers of days off were not excessive and were supported by medical evidence on at least some occasions. I am of the view that the employer was unreasonably suspicious in this regard. [83] I am troubled by the question of whether or not Mr Wisby was generally honest in all of his dealings. He did indeed lie in order to get out of an arrangement with hustler.com, although that was not a lie to his employer, and, no doubt, there is many a story contrived in order for people to extricate themselves from such arrangements. The employer did not act upon the alleged misappropriation of $35 at the time and there is merit in Mr Smith's argument that it is unlikely that Mr Hantke would entrust Mr Wisby with takings worth hundreds of thousands of dollars if there were substance to those allegations. On the other hand, if the events occurred in the manner described by Mr Hantke they do indeed raise serious doubts. Unfortunately, Mr Wisby was not cross-examined about one of these incidents. The explanation he gave for the other is possible, and I agree that the making good the shortfall in cash is not an admission of guilt. The "unnecessary lies" referred to by Mr Hantke were not put to Mr Wisby in cross-examination. On balance, I have concluded that there is insufficient evidence for me to make a finding that Mr Wisby was generally dishonest in his dealings with his employer. [84] There was no evidence that Mr Wisby was responsible for the file of (presumed) pornography and Mr O'Neill was unable to tell the Commission on what date the file was created. Mr Cordwell admitted to having viewed pornography whereas Mr Wisby made no such admission. [85] I find that no valid reason has been established to justify the dismissal of Mr Wisby. I further find that Mr Wisby was denied procedural fairness. [86] On the question of remedy, Mr Wisby was not seeking reinstatement or re-employment. It is clear that the employment relationship has broken down irretrievably; therefore compensation in lieu of reinstatement is the appropriate remedy. Section 30 of the Act provides:
[87] Following the dismissal the applicant was unemployed for some time. At the time of the hearing he was doing casual work at about $15,000 per annum less than he received at Grower's Choice. [88] Mr O'Neill submitted that the employment would have only continued for about another month, had proper procedures been followed and Mr Wisby been given the opportunity to be represented and to respond. This presupposes that there was some wrongdoing or neglect on the part of Mr Wisby in relation to the break-in. No such finding has been made. [89] Of relevance is the general employment relationship. Was it so bad that it would have been unlikely to continue? A number of issues were raised in relation to "warnings", attendance, alleged petty theft, honesty, inappropriate computer usage and general poor performance. I have already decided that the "warnings" were not in fact warnings and that there was no substance to a number of the issues raised regarding Mr Wisby's conduct. However, Mr Cordwell's evidence was that both he and Mr Wisby did not always follow the instructions given them by Mr Hantke, and it is clear that Mr Wisby had at least been "spoken to" about his performance. I have concluded that there were some deficits in Mr Wisby's performance. [90] The evidence points to an uneasy employment relationship. From Mr Hantke's own evidence, it seems that he had a very highly developed degree of suspicion in relation to his employees. I do not think that the employment relationship had a long-term future. [91] Mr O'Neill urged me to take into account the fact that it is a small business and cannot be expected to conduct its industrial relations with the same expertise as that of a large corporation, and I agree with him. However, there are significant differences between this case and the case of Kaine that he relied upon. In Kaine the Commissioner found that three warnings had been issued, that the employee had pursued prohibited activities and that the employee had been given an adequate opportunity to respond to the allegations that had been put to her. He found that Ms Kaine was not given the opportunity to be assisted by a person of her choice. He balanced those factors against "overwhelming evidence" of prohibited behaviour occurring on a persistent basis when considering the "fair go all round" test. In the present case there were no formal warnings issued, there was no investigation, no opportunity to be represented, and no opportunity was given to Mr Wisby to respond. [92] I find that the dismissal of Mr Wisby was unfair and I have concluded that the appropriate amount of compensation, in all of the circumstances, is an amount equivalent to two months' wages. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T12935 of 2007 that Daryl James Hantke trading as Grower's Choice pay to Adam Anthony Wisby the sum of Five Thousand Three Hundred and Eighty Four Dollars and Sixty Cents by close of business on 26 October 2007. P C Shelley Appearances: Date and place of hearing: 1 Transcript PN253
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