T8490 and T8491
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Justin William Bartlett and Nico Holdings Pty Ltd
Appeal - decision by Imlach C in Matters T8096 & T8097 of 1999 issued on 16 June 1999 - appeals dismissed - decision of Commissioner Imlach confirmed REASONS FOR DECISION Introduction These proceedings concern appeals against a decision of Commissioner Imlach on 16 June 1999.1 The hearing at first instant dealt with two applications that, with the parties' consent, the Commissioner joined and heard as one. Before Imlach C, both applicants alleged that their employer, Nico Holdings Pty Ltd trading as McDonalds Invermay, unfairly dismissed them on 11 November 1998. Having heard the parties the Commissioner determined the matters in the following manner:
The applicants appealed the Commissioner's decision. By consent of the parties we heard both appeals together. In determining the issues we have had regard to the well known principles established by the High Court in House v The King (1936) 55 CLR 499 at 504 per Dixon, Evatt and McTiernan JJ:
Grounds of Appeal: Justin William Bartlett 1. Error in declining to order reinstatement In the proceedings at first instance, during the course of responding to a question from Commissioner Imlach regarding remedy, Mr W Bartlett informed the Commissioner that "... in the case of Justin, he's no longer seeking reinstatement." When Mr W Bartlett opened his submissions on this ground of appeal we brought that statement to his attention and invited comment. After considering the matter, Mr Bartlett conceded there was no basis to his contention that Commissioner Imlach erred in declining to order Mr Justin Bartlett's reinstatement. In the circumstances we dismiss this ground of appeal. 2. Error in finding that employer did not deny natural justice W Bartlett for the appellant: In general terms the employer did not provide Mr Justin Bartlett with natural justice in that he did not take into account and consider all the facts and circumstances surrounding the case. For example, the employer should have considered the employees' ages, the fact that they had been out to a party, and that they were due to start work at 5:30am. A more general point of natural justice was that, even though Mr Justin Bartlett had no prior knowledge of the reasons for his dismissal, Commissioner Imlach nevertheless required him to prove that those reasons were unfair. In that regard, Commissioner Imlach did not allow a request by the applicant's advocate for a five minute adjournment early in the proceedings.2 In addition, he later refused to adjourn the hearing for a short period of time in order to allow Mr Justin Bartlett to give evidence on his own behalf.3 There was no particular reason why the Commissioner could not have heard Mr Justin Bartlett's oral evidence after hearing from the employer's witnesses. Moreover, Commissioner Imlach subsequently made it clear that he did not want any more witnesses when he said "Well, we don't want another witness, do we." 4 A Flood for the respondent: In the absence of any evidence from Mr Justin Bartlett, Commissioner Imlach could only determine natural justice questions by reference to the evidence of Mr Nicholas. Mr Nicholas was the only witness who gave any evidence of that nature. Mr Nicholas' evidence was that he interviewed all employees allegedly involved in the relevant incident, including Mr Bartlett, so as to "gather some facts to see exactly what happened".5 At that stage of the proceedings the interviews were not of a disciplinary nature. Mr Justin Bartlett, according to Mr Nicholas' evidence, denied any wrong-doing other than admitting to having arrived at work early. Mr Nicholas also interviewed another employee, Mr Michael Wells, who made certain admissions implicating Mr Justin Bartlett and Miss Bishop in the incident. Because of those admissions Mr Nicholas decided to re-interview the latter two employees.6 Later the same day Mr Justin Bartlett went to Mr Nicholas. After admitting that he had not told the whole truth, he made a written statement declaring that, among other things:7
Mr Nicholas then suspended all three employees on full pay and, in the case of Mr Justin Bartlett, terminated his employment a day and a half later.8 The evidence shows that throughout the investigative and disciplinary process Mr Bartlett had an opportunity to take advice and to prepare a defence against the allegations. There was no evidence tendered to show that Mr Justin Bartlett was not aware of the Company's policy that the unauthorised taking, removal or eating of product would result in instant dismissal.9 It is true that Commissioner Imlach did not give any reasons for his decision. However, he no doubt had regard to the commonly accepted belief that workplace theft warrants instant dismissal as well as Mr Justin Bartlett's conduct and admissions. In the circumstances, the Commissioner did not deny Mr Bartlett the benefit of procedural fairness. Concerning the matter of Mr Justin Bartlett's opportunity to give evidence, it is clear that he had adequate notice of the initial proceedings. Consequently, it was up to his representative, Mr W Bartlett, to conduct his son's case as he saw fit. The fact that Mr Justin Bartlett was not available at the appropriate time to give oral evidence was his responsibility and not a denial of natural justice by Commissioner Imlach. Then there is the matter of Mr W Bartlett's access to the employer's reasons for terminating the applicants' employment. The record of proceedings before Commissioner Imlach shows that, after hearing Mr Bartlett's objection, the Commissioner adjourned the hearing after directing the parties to confer on the reasons for dismissal.10 In all the circumstances there was no failure of procedural fairness or natural justice by either the employer or Commissioner Imlach. Findings This ground of appeal is not without its difficulties. That is because, notwithstanding the reference to the employer, much of what Mr W Bartlett put to us appears to deal with an allegation that Commissioner Imlach, rather than the employer, denied procedural fairness (or natural justice) to Mr Justin Bartlett. In that regard, we note that Mr Flood responded to all the issues raised and took no objection on grounds of relevancy. So far as the appeal ground contends that the employer denied Mr Justin Bartlett procedural fairness, we are in no doubt that Mr Nicholas put detailed allegations to Mr Bartlett at both of the interviews that he conducted with the employee. We take that view because, later the same day, Mr Bartlett admitted in a written statement that, in effect, he had not told the truth at the earlier interviews with Mr Nicholas. In that statement Mr Justin Bartlett demonstrated the extent of his awareness by identifying the very substance of the employer's allegations, i.e. cooking and eating fries, chicken nuggets and patties. That evidence, which was before Commissioner Imlach, satisfies us that there was no denial of procedural fairness on the part of the employer in his dealings with Mr Justin Bartlett. Mr W Bartlett also relied on a further procedural fairness issue. When the hearing commenced he said he told Commissioner Imlach that, in effect, he could not proceed until he was fully aware of the reasons upon which the employer relied in terminating Mr Justin Bartlett's employment-or the reasoning behind those reasons, as he put it to Commissioner Imlach.11 After discussing the matter with both parties the Commissioner adjourned the hearing, directing them to confer on the reasons for dismissal.12 In our opinion there is no substance to this allegation in relation to a denial of natural justice or procedural fairness by the employer. We believe the evidence discloses that Mr Justin Bartlett was at all times fully aware of the reasons for his dismissal-an awareness that was particularly demonstrated by his written admission of wrongdoing. In all the circumstances, we reject the contention expressed in Appeal Ground 2. Because this finding answers the appeal ground, we do not find it necessary to deal with the allegations concerning a denial of procedural fairness on the part of Commissioner Imlach. 3. Error in finding that conduct of Mr Bartlett justified instant dismissal W Bartlett for the appellant: In his Reasons for Decision Commissioner Imlach, in addition to finding that "in terminating the employment of the two employees the Company did not deny them natural justice", went on to observe that "the general conduct of the two employees justified instant dismissal".13 The rationale behind the Commissioner's decision appears to lie in the following statement:14
The applicant's submissions before the Commissioner, however, show that there was some difference between the Company's formal policies and procedures and the practices that it actually applied at the workplace. In that regard the applicant's contention, relying on the observations of Keely J in Gorgevski v Bostik (Australia) Pty Ltd (1991) 39 IR 229, was that:15
While that submission specifically concerned Miss Bishop, the argument applies equally to both applicants. The effect of the precedent cases is that it is unreasonable for an employer to blindly follow a policy without giving consideration to surrounding or extenuating circumstances. For an employee, being on the employer's premises too early is not an offence at all. The uncontradicted evidence of, for example, employer witness Nicholas16 shows that it was quite normal for the Company's employees to come to work early and, by way of extenuating circumstances, to have breakfast or something to eat-that was standard policy. Other matters that Mr Nicholas had on his mind at the time were not necessarily relevant. For instance, he said he took into account unexplained losses of $20000 in the particular restaurant. Since the losses were unexplained, they were not necessarily incurred as a consequence of stealing-they could have been mere bookkeeping errors. There was also a pre-existing policy that "If crew are caught having [chicken] nuggets, an instant termination will result".17 However, there is no actual evidence that the particular memorandum was still in force-indeed it goes on to say that "This will be [e]nforced until an improvement in the nugget variance is seen". Clearly, on its own terms, the policy was not going to be enforced for ever. The Company certainly had written policies, but it was not enforcing them rigidly and unbendingly. In its "chicken nuggets" memorandum the Company was saying what it intended to do until such time as there was an improvement in nugget variance-an explicit statement that at some time in the future the policy could change. Consequently, the memorandum confirms that the Company did not always rigidly and unbendingly enforce its policies. A Flood for the respondent: The respondent did not instantly dismiss Mr Justin Bartlett. In fact Mr Bartlett received notice in accordance with the Restaurant Keepers Award and was paid accrued annual leave entitlements. That evidence was not before the Commission at first instance, but that was only because the applicant did not then assert that he was instantly dismissed. The evidence does not support the appellant's contention that the employer condoned workplace practices that were different from the written policies. Mr Nicholas said that, apart from Justin Bartlett, Rebecca Bishop and Michael Wells, he was not aware of any recent incidents concerning employees stealing product from the restaurant. However, he went on to say that there had been some cases in the past and the Company had terminated the employees concerned.18 That evidence clearly demonstrates that the employer was adhering to the written policies. Mr Nicholas' cross-examination evidence also shows that, rather than blindly following written policies, as asserted by Mr W Bartlett, he took into account the applicants' circumstances and considered options other than dismissal.19 Findings The thrust of Mr W Bartlett's submissions regarding this ground of appeal, as we understand it, was that Mr Justin Bartlett's conduct did not justify instant dismissal. That, he argued, was essentially because the employer's written policies did not mean what they said when it came to their actual application in the workplace. There was some suggestion from Mr Flood that the Company did not instantly dismiss Mr Justin Bartlett, but terminated his employment with notice in accordance with the Restaurant Keepers Award. Mr Flood conceded, however, that the question did not arise before Commissioner Imlach. In the circumstances we confine our considerations to the issues argued in these proceedings. After perusing the record of the hearing, it seems to us that the only evidence before Commissioner Imlach regarding the employer's application of written policies was that which came from Mr Nicholas. His evidence in effect was that, consistently with existing written policies, he had in the past terminated the employment of employees who had been found stealing product from the store. There was no evidence at all before the Commissioner, that we can see, that is capable of supporting Mr Bartlett's contention that the Company was inconsistent in its application of those policies. Mr Bartlett's further contention was that, in terminating the employment of both Mr Justin Bartlett and Miss Bishop, the employer blindly followed formal policies without giving consideration to the circumstances that surrounded each individual. In that regard, in particular, Mr Bartlett referred to the practice of employees arriving early at work and unexplained losses in chicken nugget stocks. We are unable to see how the fact that the employees arrived at work early, even if it was standard practice to do so, assists Mr Justin Bartlett as an extenuating or surrounding factor. Clearly, the complaint against him and the other employees, as expressed by Mr Nicholas, was not that they got to work early, but that there was alleged to have been: 20
All those actions comprised conduct that the employer either expressly prohibited or required the employees to comply with an approval process.21 It was not suggested to Commissioner Imlach or to us that Mr Justin Bartlett was unaware of the employer's policies in that regard, as expressed in exhibits F1 and F6, or that he had complied with those policies. Indeed, Mr Justin Bartlett subsequently made a voluntary written admission-Exhibit F5-that at the relevant time he was drinking and that he cooked and ate fries, chicken nuggets and patties. In the circumstances, we believe it was open to the employer to take the view that Mr Bartlett's actions justified dismissal. Mr W Bartlett also endeavoured to persuade us that there was no evidence that the "chicken nuggets" policy was still in force at the relevant time. However, as we pointed out at the hearing, the cross-examination evidence of Mr Nicholas unambiguously suggested a contrary view.22 Having regard to that evidence we have formed the view that there is no evidentiary basis for the contention that the "chicken nuggets" policy was not in force at the time of the incident that led to Mr Justin Bartlett's dismissal. In all the circumstances, taking into account Mr Justin Bartlett's admissions as represented in Exhibit F5, it was clearly open to Commissioner Imlach in our opinion to find, as he did, that Mr Bartlett was "involved in the misconduct in the manner alleged by the Company" and that that misconduct justified instant dismissal.23 Consequently, we dismiss this ground of appeal. 4. Decision contrary to weight of evidence W Bartlett for the appellant: In his decision, Commissioner Imlach said that, where there was conflict, he preferred the evidence of Mrs Percy and Mr Nicholas to that of Miss Bishop.24 However, he completely failed to give any reason for that conclusion. In a number of instances the employer's witness evidence was contradictory. That was especially the case with Mrs Percy, whose evidence was hardly credible at all. In particular, the evidence of Mrs Percy contradicted that of Mr Nicholas concerning the cooking and eating of food, including chicken nuggets from the refrigerator. Mrs Percy's evidence was that she saw food being cooked at 5:30am or thereabouts, whereas Mr Nicholas' evidence in relation to his interviews with Mr Justin Bartlett and Mr Michael Wells suggested that the time was nearer 3:30am. Obviously, one of the witnesses was wrong. The contradictory nature of this evidence was clearly put to Commissioner Imlach in the hearing at first instance.25 In that regard, it was submitted on Mr Justin Bartlett's behalf that, because of its inconsistency, the Commission could not really accept Mrs Percy's evidence. A Flood for the respondent: Mr Justin Bartlett put no oral evidence to Commissioner Imlach at first instance. The submissions put to the Commissioner on his behalf, consequently, were not supported by evidence of any kind. The evidence that was before Commissioner Imlach plainly supported his conclusion. Mrs Percy's evidence was that Justin Bartlett was cooking and eating chicken nuggets, which he also served to Rebecca Bishop and Michael Wells.26 Miss Bishop's evidence was that Justin Bartlett and Michael Wells cooked up some chips and they evidently told her they also had chicken nuggets and patties.27 Miss Bishop further said that she saw the two employees with "a couple of bottles of alcohol".28 Mr Nicholas' evidence was that Mr Wells, in his admission, implicated Justin Bartlett in drinking alcohol and cooking product.29 Finally, the only evidence put to Commissioner Imlach in respect of Justin Bartlett was his signed statement in which he admitted to drinking and to cooking and eating fries, chicken nuggets and patties.30 No evidence was put to Commissioner Imlach that tended to suggest Mr Justin Bartlett had not done any of the acts referred to in the evidence of the witnesses. Mr W Bartlett, in his submissions, emphasised the conflicting evidence as to when the food was allegedly consumed. The Commission should not put much weight on that issue because it is immaterial to the fact that food was actually consumed. When the food was consumed is merely fine tuning. Findings Mr Bartlett's contention in this regard was in effect that Commissioner Imlach should not have relied on the evidence of Mrs Percy because it was inconsistent with and contradicted the evidence of Mr Nicholas regarding the time food was allegedly eaten. In particular, he referred to Mrs Percy's recollection that she saw Mr Justin Bartlett cooking and eating food, including chicken nuggets, at about 5:30am on the morning in question. That evidence, he correctly pointed out, was quite different from Mr Nicholas' evidence who, after interviewing Mr Justin Bartlett and Mr Wells, said that the time was nearer 3:30am. We agree with Mr Bartlett that the oral evidence discloses an unresolved conflict. However, we cannot see what bearing that conflict has on the undisputed fact that, on his own admission and aside from the evidence of Mrs Percy, Mr Justin Bartlett, being aware of the employer's written policies, nevertheless cooked and consumed food in a manner contrary to those policies. In the circumstances we reject the appellant's contention that Commissioner Imlach's decision was contrary to the weight of the evidence. In our view, the time that the events occurred is immaterial to the fact that they actually occurred. Grounds of Appeal: Rebecca Naomi Bishop 1. The decision was against the evidence and the weight of the evidence W Bartlett for the appellant: The Employee Counselling Form completed by the employer in relation to Miss Bishop referred only to her admission that she had eaten flake. The Form does not say anything about her having eaten chicken nuggets and nowhere does it suggest that such an allegation was a ground for her termination. The grounds given for her termination were that (i) she allowed two employees to enter the restaurant at about 3:00am with alcohol and (ii) she then proceeded to violate all safety and food-handling policies without immediately informing the duty manager or store manager. 31 This latter ground is a catch-all allegation that is so non-specific that no meaning can be read into it at all. Miss Bishop was not a security guard and she had no supervisory duties of any kind. Miss Bishop did not deny that she had eaten a chocolate flake. However, the suggestion that she was seen eating chicken nuggets was introduced at a much later stage by Mrs Percy. It was not an issue that Mr Nicholas raised with Miss Bishop when he was considering her dismissal. This matter is also a procedural fairness issue. At the initial hearing Miss Bishop did not expect to be asked to answer a different set of allegations from those expressed in the Employee Counselling Form. Miss Bishop's actions in allowing two employees access to the restaurant may have been a violation of the Company's written policies. However, Miss Bishop's undisputed evidence32 confirmed by the evidence of Mrs Percy33 and Mr Nicholas34 shows that at the time it was standard practice for employees to come to work early every single day. As for the alcohol, Miss Bishop, not being a security guard, was not obliged to search employees before giving them access to the restaurant. The fact that Miss Bishop had received two prior warnings about her behaviour and adherence to Company policies is a relevant consideration in the matter of her termination.35 However, the second or more recent of those warnings is not relevant to the present circumstances because it concerned a workplace injury where Miss Bishop was given a warning because she claimed workers' compensation. That assertion was put to Commissioner Imlach in the initial hearing.36 In summary, the appellant's contention is that Commissioner Imlach did not give enough weight to the evidence demonstrating that there was an established practice of employees starting work early and that, consequently, it was unfair of the respondent to rely on that ground for purposes of dismissing Miss Bishop. Furthermore, the evidence also shows that none of the reasons stated in the Employee Counselling Form is a valid reason for terminating Miss Bishop's employment. It is not open to the employer to top up those reasons with others not considered at the time. A Flood for the respondent: Throughout the proceedings Miss Bishop maintained a denial of any wrongdoing at all. Miss Bishop admitted to eating a flake,37 but claimed that she was entitled to do so. That aside, there is no other evidence that stood against the fairly weighty evidence of the other witnesses. Mrs Percy's evidence was that:38
Mrs Percy then went on to say that chicken nuggets were only kept in the freezer, which was supposed to be locked at the time¾evidence subsequently confirmed by Mr Nicholas.39 According to Mrs Percy, Mr Wells then cooked the nuggets and Miss Bishop went and got some of the cardboard boxes in which cooked nuggets are usually served¾"they all had individual boxes and Justin gave Rebecca hers and Michael had his".40 Mr Nicholas' evidence supports that of Mrs Percy. He said Mr Wells told him that Miss Bishop ate the cooked product, i.e. fries, chicken nuggets and chicken patties41 evidence that draws support from Mr Bartlett's written statement.42 Concerning the chocolate flake, Mr Nicholas' evidence was that, like customers, employees cannot buy a single flake as a completed product. In any event, he said, employees must not consume those products before the duty manager shows up for work. They must inform the manager and the use of the product is then recorded for inventory purposes.43 Contrary to Mr W Bartlett's submissions, the evidence plainly implicates Miss Bishop in the eating of restaurant product. In the circumstances, Commissioner Imlach's decision reflected the weight of the evidence and, consequently, was not against the evidence or the weight of the evidence. Findings In summary form, Mr Bartlett's arguments on behalf of Miss Bishop concerning this ground of appeal are that:
Viewed in isolation, the employer's allegations regarding Miss Bishop's disregard of all safety and food handling policies certainly reflect very general terms. However, in our view, the allegations must be read and understood in the context of their surrounding facts and circumstances. In that regard Mr Nicholas' uncontradicted evidence before Commissioner Imlach was that, at an initial interview, he put allegations to Miss Bishop regarding drinking and alcohol on the premises, breaking into a refrigerator and taking, cooking and eating product.44 Mr Nicholas' further evidence is that, following Mr Wells' disclosures, he again interviewed Miss Bishop about the same matters.45 That evidence satisfies us that, at all relevant times preceding her dismissal, Miss Bishop was well aware of the specific nature of the allegations being put to her. Seen in that light, the general terms used by the employer in the Employee Counselling Form have a specific meaning. Consequently, we reject Mr Bartlett's contention that the particular allegations were so non-specific as to be meaningless. Concerning Miss Bishop's eating of chicken nuggets, Mrs Percy's evidence was that she saw Mr Justin Bartlett, Mr Wells and Miss Bishop eating chicken nuggets. She subsequently reported those events to the store manager, Mr N McLeod.46 According to Mr Nicholas, Mr McLeod then informed him of Mrs Percy's report.47 Upon receiving that information Mr Nicholas' evidence was that he commenced interviewing the employees, Miss Bishop included, regarding drinking and alcohol on the premises, breaking into a refrigerator and taking, cooking and eating product. In addition, Mr Nicholas said Mr Wells told him Miss Bishop ate fries, chicken nuggets and chicken patties. That information was in Mr Nicholas' mind before he interviewed Miss Bishop for the second time.48 On a clear balance of probabilities, in our opinion, the available evidence gives rise to a strong inference that Mr Nicholas, in both of his interviews with Miss Bishop, referred to, among other products, chicken nuggets. In the circumstances, whether he specifically mentioned Mrs Percy, as distinct from alleging that Miss Bishop had been seen eating chicken nuggets, is beside the point. For these reasons we disagree with Mr Bartlett's contention that Mr Nicholas did not raise this issue with Miss Bishop when he was considering her termination. It does not appear to us that, in considering Miss Bishop's termination, the employer relied to any significant degree, if at all, on the fact that she "allowed 2 employees to enter the restaurant at approx. 3 am ... with alcohol". While the employer evidently tried to discourage employees from arriving at work too early, it does not seem to have been put to Commissioner Imlach that such action constituted misconduct of a kind that could lead to termination. We construe the statement "allowed 2 employees to enter the restaurant at approx. 3 am ... with alcohol", as it appears on the Employee Counselling Form, as being simply the recital of an event that preceded the statement which described the actual misconduct, i.e. that Miss Bishop "then proceeded to violate all safety and food handling policies". In our view, looking at the evidence as a whole, that statement in so far as it concerned drinking and alcohol on the premises, breaking into a refrigerator and taking, cooking and eating product, was the employer's primary ground for dismissal. If, in relation to Miss Bishop, the employer relied at all on the alcohol question, Commissioner Imlach found in her favour, i.e. "Miss Bishop did not bring alcohol onto the premises".49 Furthermore, we note her oral evidence on cross-examination that, when Mr Justin Bartlett and Mr Wells arrived at work, she did not see any alcohol.50 For those reasons we reject Mr Bartlett's contentions regarding the access and alcohol issues. There was, however, other evidence before Commissioner Imlach regarding Miss Bishop. That evidence concerned the employer's prior warnings about her behaviour and adherence to Company policy. The evidence before Commissioner Imlach shows that Miss Bishop was the subject of two prior warnings. The first warning, which occurred on 24 September 1996, concerned unsatisfactory workplace behaviour that evidently led to one employee being injured.51 On that occasion the employer warned Miss Bishop that she must follow management directions or further counselling and possible termination might follow. This matter does not appear to have been the subject of any discussion before Commissioner Imlach. The second warning, which occurred on 30 July 1998, concerned allegations that Miss Bishop did not adhere to safety policies regarding the wearing of filtering clothing (gloves, helmet and apron) contrary to direct management instructions.52 On this occasion the employer warned Miss Bishop that failure to wear equipment at all times when filtering would result in termination. Before Commissioner Imlach Mr Bartlett asserted that this issue misrepresented Miss Bishop's true position, which was that the matter was a clear case of the employer failing in its duty of care.53 The Commissioner observed at the time that "even though she signed it, which is highly significant, I don't take it as a hundred percent knockout against the employee".54 Before us Mr Bartlett conceded that it was a relevant consideration that Miss Bishop had received two previous warnings about her behaviour and adherence to Company policies. However, in respect of the warning represented in Exhibit F3, he submitted that it was really about being injured on the job and, as such, also had some relevance to the employer's behaviour.55 We construe Mr Bartlett's submission here as being a reference to his allegation before Commissioner Imlach that the employer failed in its duty of care. Our perusal of Exhibit F3 confirms the view we expressed during the hearing that nowhere does it contain any reference to Miss Bishop being injured on the job.56 Consequently, we do not see how it can have the meaning or connotation assigned to it by Mr Bartlett. As for the warnings generally, it seems clear to us from Commissioner Imlach's remarks, especially in relation to the second warning, that he took them into account. We believe he was entitled to do so, because the two warnings concerned misconduct of the same kind as that alleged in the current matter and each warned that termination might result. For the reasons just mentioned, we reject Mr Bartlett's contention that the warnings were an irrelevant consideration. Having regard to the conclusions we have set out above we are satisfied that Commissioner Imlach's decision was not against the evidence and the weight of the evidence. Accordingly, we dismiss this ground of appeal. 2. Error in declining to order reinstatement W Bartlett for the appellant: This is a general rather than specific ground of appeal. The ground is really an extension of Appeal Ground 1, i.e. if Commissioner Imlach had properly weighed the evidence he would have ordered Miss Bishop's reinstatement. A Flood for the respondent: The appellant's submissions imply that, if Appeal Ground 1 is unsuccessful, this ground must also fail. The respondent supports that submission. The employer's view is that this ground of appeal reflects the discretion that resided in Commissioner Imlach during his consideration of the parties' contentions. Having heard the parties, the Commissioner accepted that, on a balance of probabilities, the employer's allegations were made out. Consequently, he decided not to reinstate Miss Bishop. If the Full Bench confirms Commissioner Imlach's finding that the employer had a valid reason for terminating Miss Bishop's employment and, in doing so, accorded her procedural fairness, then it must dismiss this ground of appeal. Findings We have already found that Commissioner Imlach's decision was not against the evidence or the weight of the evidence. Consequently, taking into account that finding and the parties' submissions on this ground of appeal, we dismiss Mr Bartlett's contention that the Commissioner erred in declining to order reinstatement of Miss Bishop. 3. Error in finding the employer did not deny natural justice W Bartlett for the appellant: The appellant's contention here is that, having provided Miss Bishop with certain reasons for dismissal as set out in Exhibit F4¾the employer did not really give her an opportunity to properly respond to the allegations. Exhibit F4 records that when those reasons were put to Miss Bishop there was "No response from Rebecca". That is obviously an incorrect statement because the preceding paragraph shows that "Rebecca also admitted to eating flake". The evidence before Commissioner Imlach was that Mrs Percy took her allegations to the employer some two weeks after the events that gave rise to Miss Bishop's dismissal. However, there is nothing in the evidence at all that shows Mr Nicholas told Miss Bishop that Mrs Percy was making allegations against her¾that she had taken chicken nuggets and fries or that he explained to her the nature of those allegations. The original reasons for dismissal, as set out in Exhibit F4, plainly have nothing to do with Mrs Percy's allegations. Those circumstances disclose a denial of natural justice. Miss Bishop was entitled to be told of the allegations and the identity of the person making them. It is clear that Miss Bishop had no prior knowledge of the grounds upon which, before Commissioner Imlach, the employer relied in support of the decision to terminate her employment. Notwithstanding that lack of knowledge Commissioner Imlach made it quite clear that he did not want any more witnesses.57 A Flood for the respondent: Commissioner Imlach was obliged to determine Miss Bishop's application solely on her evidence and that of Mr Nicholas. As mentioned already, Mr Nicholas first interviewed all relevant employees, including Miss Bishop, for the purpose of gathering facts to see what actually happened on the particular morning. At that interview he discussed the allegations and Miss Bishop denied any wrong-doing. Later the same day, as a result of Mr Wells' admission, Mr Nicholas interviewed Miss Bishop for a second time.58 She again denied any wrong-doing. Subsequently, after receiving Mr Justin Bartlett's written statement, Mr Nicholas gave Mr Wells and Miss Bishop an opportunity to provide written statements of their involvement in the incident. Mr Wells complied but Miss Bishop declined to put anything on paper.59 There was no evidence put to Commissioner Imlach that Miss Bishop was not aware of the content of Exhibit F6, i.e. that "if crew are caught having nuggets, an instant termination will result". Similarly, there was no evidence before the Commissioner that showed Miss Bishop was not aware of the provisions of the Orientation and Policy Checklist (Exhibit F1), i.e. "no food is to be taken out of the store or eaten while you are on shift, this is STEALING". Regarding Mr W Bartlett's submission that Miss Bishop was not aware of the allegations made against her, the evidence before Commissioner Imlach shows that those matters arose in Mrs Percy's evidence. Mrs Percy was the first witness called and Mr W Bartlett had an opportunity to cross-examine her in relation to the allegations. In any event, Mr Bartlett did not request an adjournment for that purpose¾he simply asked for time to go and have a cigarette. Findings Mr Bartlett's primary contention regarding this ground of appeal was that Miss Bishop had no prior knowledge of the particular allegations upon which the employer relied. As we understand his argument, that was because the grounds, in particular the taking and eating of chicken nuggets, were not specified in the Employee Counselling Form. As a consequence, he submitted, Miss Bishop did not have an opportunity to properly respond to those allegations. In the course of considering Miss Bishop's first appeal ground we concluded on the evidence of Mr Nicholas that, at all relevant times, Miss Bishop was well aware of the specific nature of the allegations being put to her.60 Concerning, in particular, the allegations regarding the taking and eating of chicken nuggets and fries, the evidence also satisfied us on a clear balance of probabilities that in both of his interviews with Miss Bishop, Mr Nicholas referred to those allegations.61 In the circumstances we believe it was open to Commissioner Imlach to conclude, as he did, that the employer did not deny Miss Bishop procedural fairness or natural justice.62 Accordingly, we dismiss Appeal Ground 3. 4. Error in finding that conduct of Miss Bishop justified instant dismissal Mr Bartlett withdrew this ground of appeal after conceding that, upon reflection, the facts of Miss Bishop's case did not disclose an instant dismissal. Conclusion In respect of Mr Justin Bartlett's appeal, for reasons discussed above, we dismiss all four grounds of appeal and confirm Commissioner Imlach's decision. In respect of Miss Bishop's appeal, for reasons discussed above, we dismiss Appeal Grounds 1, 2 and 3 and confirm Commissioner Imlach's decision. In doing so we note that Mr W Bartlett on behalf of the appellant withdrew Appeal Ground 4.
B R Johnson Appearances: Date and Place of Hearing: 1 T8096 & T8097 of 1999. |