Bryann Best v Woolworths Group Limited
[2023] FWC 1283
•10 JULY 2023
| [2023] FWC 1283 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bryann Best
v
Woolworths Group Limited
(U2022/11103)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 10 JULY 2023 |
Application for an unfair dismissal remedy – whether Applicant stole, in company with his Mother, an electronic storage device (8TB external hard drive) from Big W Blacktown (located in the Westpoint Shopping Centre) – whether a LEGO Marvel Sanctum Sanctorum (the notorious residence of Marvel Superhero character, Doctor Stephen Strange) was also stolen - CCTV video evidence – inferences – witness credibility – Applicant’s account of theft and surrounding events a farrago of lies – valid reason for dismissal – no unfair dismissal – application dismissed.
Introduction
Mr Bryann Best (Applicant) has filed an unfair dismissal application (Application) with the Fair Work Commission (Commission) alleging that he was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by his former employer, Woolworths Group Limited (Respondent).
The Respondent says that the Applicant was dismissed for theft (“serious misconduct”), and denies that the Applicant was otherwise unfairly dismissed.
At the Hearing, the Applicant appeared for himself and was assisted by his mother, Ms Toni Best. Mr Oshie Fagir, of Counsel, instructed by Ms Katie Kossian, Senior Associate, Maddocks lawyers, appeared with permission on behalf of the Respondent.[1]
Evidence and submissions
The Applicant relies upon:
(a)Applicant’s Submissions, dated 21 March 2023;
(b)Statutory Declaration of Mr Bryann Best (Applicant), dated 14 April 2023;[2]
(c)Statutory Declaration of Ms Toni Best (Applicant’s Mother), dated 14 April 2023;[3]
(d)Applicant’s Closing Submissions, dated 8 May 2023; and
(e)Applicant’s Closing Submissions in Reply, dated 21 May 2023.
The Respondent relies upon:
(a)Respondent’s Outline of Submissions, dated 3 April 2023;
(b)Witness Statement of Mr Tim Wren, Store Manager Big W, Westpoint Shopping Centre, Blacktown, dated 3 April 2023;[4] and
(c)Respondent’s Closing Submissions, dated 15 May 2023.
Factual findings
Based upon the evidence relied upon by both parties at the Hearing, I make the findings of fact set out in the paragraphs that follow.
The Applicant was employed by the Respondent at its BIG W, Blacktown, retail outlet (Store) as a part-time Store Team Member (Retail Sales Assistant) between 6 June 2008 and 31 October 2022. The Store is open seven days a week, including on most public holidays, and is located inside the Westpoint Shopping Centre, Blacktown.
The Applicant is currently nearing the completion of a law degree (Bachelor of Laws) at the University of Western Sydney.[5]
During his employment with the Respondent, the Applicant worked Saturday (10:00am to 3:00pm) and Sunday (11:00am to 4:00pm) shifts each week (i.e. 10 hours per week). The Store is open between 8:30am and 7:00pm on Monday, Tuesday, Wednesday, Friday and Saturday, 8:30am and 9:00pm on a Thursday, and 9:00am and 6:00pm on a Sunday.
The Applicant was aware that the Store is monitored at all times by CCTV camera (video) surveillance.[6] Customers who enter the Store are also made aware of this fact via signage.[7]
On Saturday, 8 October 2022, the Applicant was working at the technology counter of the Store on his 10:00am to 3:00pm shift. The technology counter is located alongside the Store’s Service Desk. On the Store’s CCTV video footage, it can be seen that there are at least two staff members working at the Service Desk, and that such staff from time to time also serve or assist customers who are waiting in front of the technology counter. It can also be seen that the staff at the Service Desk process sale or purchase transactions for customers, and tag items of stock with payment receipts (presumably these are lay-by receipts, or payment receipts in circumstances where the customer intends to collect the goods that they have purchased and paid for at a later time).
Behind the Service Desk is a security lock-up or storage room (Storage Room) that is inaccessible to the public. The Storage Room is used for the purposes of storing valuable retail stock[8] that necessitates the involvement of a staff member to obtain an item from the Storage Room upon a request from a customer. Items in the Storage Room are not available on the retail shop floor. Items from the Storage Room must (or are supposed to) be purchased directly from the Service Desk or the technology counter (as opposed to the front of Store checkouts or sales registers) so that customers are not walking around the Store with a valuable stock item that has not been paid for.[9] The Storage Room has a video camera that records access (which the Applicant is aware of).[10] I observe that whether or not the Storage Room is in fact locked (with staff key or pin-pad access), or otherwise secured (locked-up) at all times, is not to the point.[11] It is a room that is not part of the Store’s retail shop floor, and is not accessible by customers.
As at Saturday, 8 October 2022, the Storage Room contained, amongst other items, a Seagate 8TB hard drive (Hard Drive). This was the only Seagate 8TB hard drive in stock in the Store at the time,[12] and was being sold for a retail price of $399. As I understand it, if a customer wishes to purchase an item such as the Seagate 8TB hard drive, they approach a Big W team member at the technology counter, who then accesses the Storage Room to obtain the hard drive and transacts the purchase by the customer at the technology counter (or the Service Desk). This differs from other, what might be called ordinary or less valuable stock item transactions, that are on display (and can be accessed directly) on the retail shop floor and purchased at the front of Store checkouts or sales registers.
By reference to the Store CCTV video footage tendered by the Respondent at the Hearing, it is apparent that on Saturday, 8 October 2022:
a) At 2:59pm (with his shift due to finish at 3:00pm), and despite no customer inquiry or request, the Applicant entered the Storage Room carrying a brown non-descript large cardboard box, removed the Hard Drive from a shelf, placed the Hard Drive in the cardboard box (thereby wholly concealing the Hard Drive within the box), and took the cardboard box (containing the Hard Drive) out of the Storage Room. I observe from the Store’s CCTV video footage that the Applicant, upon entering the Storage Room, headed straight to the exact location that the Hard Drive was stored on the shelf in the Storage Room, quickly took the Hard Drive off the shelf and placed it in the carboard box, closed the top lids of the cardboard box (thereby totally concealing the Hard Drive within the cardboard box), and immediately exited the Storage Room. The Applicant was in and out of the Storage Room in less than 20 seconds.
b) The Applicant thereafter immediately (and brazenly) proceeds from the Storage Room, walks behind the Service Desk and the technology counter (carrying the cardboard box containing the Hard Drive), and straight onto the retail floor. He then proceeds to walk to a shopping aisle (the pet aisle) a few metres away from the technology counter (on the retail floor), where his Mother is waiting with a trolley full of goods. The Applicant can then be seen tipping or turning the cardboard box on its side, seemingly emptying the contents of the box (i.e. the Hard Drive) directly into his Mother’s trolley. The Applicant then immediately returns to the technology counter, discards the cardboard box to the side of the technology counter, and thereafter seamlessly commences attending to a customer who is standing in front of the technology counter. I note that there are only 13 seconds between the Applicant approaching his Mother, tipping or turning the cardboard box on its side and into his Mother’s trolley, and returning to the technology counter (discarding the cardboard box to the side of the technology counter).
c) A few minutes later (at around 3:05pm), the Applicant finishes his shift and joins his Mother on the retail shop floor. Eventually, after staying in the Store for around 25 minutes more, the Applicant and his Mother approach the checkout counters and sales registers at the front of the Store, purchase one item (a pot), and leave the Store.
On Monday, 10 October 2022, following a customer inquiry as to the availability of a Seagate 8TB hard drive, it was discovered that the Hard Drive was missing from the Storage Room (and the Store).[13] Again, the Store only had one Seagate 8TB hard drive in stock at that time. A review of Store’s CCTV video footage (by Mr Tim Wren, Big W, Blacktown, Store Manager) showed that on 8 October 2022 the Applicant had removed the Hard Drive from the Storage Room (see paragraph [14] above).
On Friday, 14 October 2022 at around 10:45am, Mr Wren had a telephone conversation with the Applicant and advised him that he wanted to speak with him the following day (Saturday, 15 October 2022, at the start of the Applicant’s next shift) about the removal of stock (or missing stock) from the Store. Mr Wren did not identify to the Applicant during this telephone conversation the specific stock item/s that he was referring to as being removed or missing.[14]
On Friday, 14 October 2022, at 1:01pm, the Applicant’s Mother entered the Store. By reference to the CCTV video footage tendered by the Respondent at the Hearing, it can be seen that the Applicant’s Mother:
a) entered the Store wearing a hat and a mask, with a trolley full of goods, including a large upright Christmas bag in her trolley;
b) had in the Christmas bag a large box, the visible part (top) of which is a light brown colour;
c) walked around the Store for a period, but without entering the pet or toy aisles;
d) disappeared from the view of Store’s CCTV video cameras down the cleaning aisle;
e) reappeared shortly thereafter in the office aisle (being one aisle further up and away from the Store’s CCTV video cameras);
f) scanned the Hard Drive at a price scanner;
g) disappeared again down the cleaning aisle and then re-emerged shortly thereafter; and
h) walked to the front of Store checkout and sales registers, where she produced and paid for:
·the Hard Drive; and
·a LEGO Marvel Sanctum Sanctorum (the notorious residence of Marvel Superhero character, Doctor Stephen Strange), being a LEGO product (made up of interlocking plastic LEGO bricks).[15] The relevance of the purchase of the LEGO Marvel Sanctum Sanctorum by the Applicant’s Mother on 14 October 2022 is set out in paragraphs [20] and [80] to [84] of this decision below.
On Saturday, 15 October 2022, the Applicant attended the meeting scheduled (the day prior) by Mr Wren, with his Mother as his support person. When concern was raised about the missing Hard Drive, the Applicant accepted that he had taken the Hard Drive from the Storage Room. He denied any involvement in removing (stealing) the Hard Drive from the Store, and said that he had simply hidden the Hard Drive in the Store’s pet aisle under some pet beds, and neglected to retrieve it. The Applicant’s Mother interjected during the meeting and advised that she had in fact retrieved the Hard Drive from its hiding place (in the pet aisle) the day before (Friday, 14 October 2022) and purchased it for the Applicant as a surprise Christmas present.[16] Mr Wren considered the Applicant’s explanation (or excuses) very unlikely (implausible) and illogical, and suspended the Applicant with pay pending the outcome of an on-going investigation into the missing Hard Drive.[17]
On Wednesday, 19 October 2022, the Applicant was directed to attend a further meeting with Mr Wren. The meeting was set down for 10:00am on Saturday, 22 October 2022. The Applicant was advised that he had the opportunity to bring a support person to this meeting, but given the involvement of his Mother in the events that had happened to date, such a support person would need to be someone other than her.[18]
On Saturday, 22 October 2022, the Applicant attended a further meeting with Mr Wren, and brought a union delegate as his support person.[19] At this meeting, the Applicant was handed a Show Cause Letter, which relevantly reads:
“22 October 2022
Dear Bryann,
Invitation to Show Cause
I refer to our meeting on 15 October 2022 (the Meeting) at BIG W Blacktown (the Store) regarding your alleged unacceptable behaviour (the Allegations). Also present during the Meeting were Majed Hamze (Availability Leader) acting as Company witness and your mother, acting as your support person.
During the Meeting, you were invited to respond to the Allegations.
Allegations and Findings
It was alleged that, on 8 October 2022, you:
1. took an empty box into the Security Lockup area [Storage Room] and placed a Seagate 8TB hard drive, valued at $399.00 (the Hard Drive), into the box without a business reason to do so and:
a. removed the box, with the Hard Drive concealed inside, from the Security Lockup area [Storage Room) without a business reason to do so;
b. placed the Hard Drive inside your mother’s trolley, concealing it underneath other stock and removing the external box; and
2. left the Store with your mother, with the Hard Drive in your possession, without making payment for it, resulting in a personal financial gain [to you] and [a] loss to the business of $399.00.
As you are aware, on 14 October 2022, I contacted you by telephone at approximately 10:45am to provide you with notice of the Meeting. During our telephone discussion, I advised you that the Allegations were in relation to the removal of stock from the Store without payment. No further information was provided to you in relation to the specifics of the alleged stock that had been removed from the Store, or the nature of the Allegations.
During the Meeting, you asserted that you and your mother had not removed the Hard Drive from the Store on 8 October 2022 as alleged and, rather, you had concealed it in the pet department, unsecured and unattended, for a period of approximately five days. You stated that you did so in order to set the stock aside while you determined the price of the Hard Drive at JB Hi-Fi. You stated that you then forgot the Hard Drive was in the Pets department and that it had been your intention to purchase the Hard Drive on 15 October 2022 during your shift.
At this time, during the Meeting, I note that your mother intervened, stating that she had retrieved the Hard Drive from the Pets department and purchased it on 14 October 2022, as a surprise for you. Your mother retrieved a receipt from her bag and presented it for consideration. I note that the purchase occurred at 1:12pm, a period of approximately three hours after you were notified of the Allegations and the Meeting.
Upon reviewing CCTV footage of the purchase transaction from 14 October 2022, your mother can be seen entering the Store with products concealed inside a large gift bag. Your mother went to the Pets department, selected other items to purchase and made her way to the registers. I note that, at the time the purchase was made, the Hard Drive can be seen in the trolley, however the gift bag is empty and folded flat. In light of this footage, we have concerns that the Hard Drive was brought into the Store by your mother, concealed inside the gift bag, removed from the bag whilst inside the Store and purchased at the registers in order to falsely support that the Hard Drive had remained in the Store and had not been removed as alleged.
I note that a box of LEGO, valued at $299.00, was also brought into the Store and purchased by your mother at this time. Whilst we do not have evidence to support your involvement in the removal of the LEGO from the Store without prior payment, we have serious concerns regarding the honesty and accountability demonstrated by you during the Meeting and the trust and confidence we are able to place in you as a team member moving forward.
After considering all of the information available, including your responses during the Meeting, the purchase of the Hard Drive and the LEGO, CCTV footage, eJournal receipts and sales reporting, the Allegations were substantiated.
Breaches
Bryann, based on these findings, I have determined that your behaviour is unacceptable and is a breach of, including but not limited to, the Woolworths Group Code of Conduct, specifically:
● Our Core Values:
üWe care deeply;
üWe listen and learn; and
üWe do the right thing.
● How We Do Business:
üYou should carry out your duties in good faith, always following relevant laws, policies and procedures;
üYou should avoid engaging in behaviour - or ignoring behaviour by others - which breaches this Code of Conduct, any of our policies, or the law;
üYou should promptly raise issues (or suspected breaches) with your team leader;
üWe are all responsible for the property that belongs to Woolworths Group;
üEnsure every sale is processed through the point of sale in the correct way;
üNever take any stock, money or property, no matter how small or inexpensive;
üWhere appropriate, seek permission from a team leader to take property from the workplace and ensure its removal is documented.
Outcome - Show Cause
Bryann, the substantiated conduct is serious and constitutes serious misconduct, particularly in light of the personal benefit and loss to the business as a direct result of the conduct, had we not intervened by way of a conduct investigation.
Accordingly, BIG W has formed a preliminary view and is considering taking disciplinary action, including the termination of your employment. Prior to making a decision, we would like to invite you to provide any additional information or factors you would like us to consider as part of the decision-making process.
I ask you to provide a written response to Brett Bartlett (Area Manager, North Area 2), who is the decision maker in relation to the outcome of this matter, at [email protected] by no later than 5:00pm on 24 October 2022. If BIG W does not receive a response, a decision will be made on the information at hand.
When deciding the appropriate outcome, your written and verbal responses will be taken into account, as well as all of the information obtained as part of the investigation and your entire employment history and any potential negative impact on the Woolworths Group.
Work Arrangements
As discussed, due to the serious nature of the Allegations and to enable you the time to respond, you will continue to be suspended on full pay until the investigation has been completed. During this period, you must refrain from attending or making contact with any persons employed at the Store, other than someone who is acting as your support person, for any reason pertaining to this matter, unless otherwise directed to do so.
Confidentiality
It is important that you keep in mind that the Allegations and the investigation are confidential. You must not discuss this matter with any other person unless they are acting as your support person. Everyone involved in this process, including your support person is also required to keep the matter confidential.
Support Available
Bryann, I would like to take the opportunity to remind you of the support that is available to you through Sonder. Sonder can provide on-demand, 24/7, free and confidential support on a range of issues including psychological, safety, health and wellbeing needs. You and your family can access Sonder on 1800 234 561 or by downloading the Sonder app on your device, from the Google Play or App Store.
If you are unclear on anything covered in this letter, please contact me on (02) 9677 6404.
Yours sincerely,
Tim Wren
Store Manager
BIG W Blacktown”[20]
It is noted that whilst the Applicant was requested to respond to the Show Cause Letter by 5:00pm on Monday, 24 October 2022, the Applicant requested an extension of time to provide this response, which was granted until Wednesday, 26 October 2022.[21]
The termination letter issued to the Applicant on Monday, 31 October 2022 (terminating his employment without notice that day) reads:
“31 October 2022
Dear Bryann,
Outcome of the Investigation
I refer to our letter to you dated 22 October 2022 (the Letter) detailing the allegations made against you (the Allegations) and the findings of serious misconduct. We met with you on 15 October 2022 (the Meeting) to discuss the Allegations and provide you with an opportunity to respond.
In the Letter, you were advised that, after considering your response to the Allegations during the Meeting, the Allegations that you removed high value stock from the Store without making payment, were substantiated. Furthermore, you were advised that your behaviour was considered to be misconduct and was in breach of, including but not limited to, the Woolworths Group Code of Conduct. As you are aware, BIG W team members are expected to comply with all policies at all times during their employment.
Given the serious nature of your misconduct, you were advised that BIG W was considering disciplinary action, including terminating your employment. You were invited to provide any further information you wanted us to consider in response to the Allegations, as well as any other information we should be aware of as part of the decision-making process. This response was due by 5:00pm on 24 October 2022.
On 24 October 2022, you requested that you be afforded additional time to respond to the Letter. Accordingly you were afforded an extension until 5:00pm on 26 October 2022.
I note that, despite the extension afforded to you, to date, you have not provided a response or any correspondence with respect to the Letter.
Bryann, as indicated in our email to you on 28 October 2022 we attempted to make contact with you on a number of occasions however, we were unable to get in contact with you. We also advised that if you failed to attend the scheduled outcome meeting on 29 October 2022 the outcome would be communicated to you via email.
Outcome - Termination of Employment
As you are aware, Brett Bartlett (Area Manager, North Area 2), is acting as the decision maker in relation to this matter. Mr Bartlett has taken all relevant matters into account, including your responses to the Allegations during the Meeting, the findings of the investigation, as well as your employment history and length of service.
Bryann, the conduct you have engaged in constitutes serious misconduct and, without intervention, would have resulted in a personal financial gain and loss to the business as a direct result.
Furthermore, we are of the view that you have failed to demonstrate honesty, accountability or remorse throughout the investigation and, as such, we have concerns regarding the trust and confidence we are able to place in you as a team member.
In the circumstances, given the serious nature of your behaviour, BIG W has decided to terminate your employment, effective immediately.
Confidentiality
Please also remember that this investigation and the outcomes are confidential. You must not discuss it with any other employee, except someone who is acting as a support person for you.
Ongoing Support
Bryann, I would like to take the opportunity to remind you of the support that is available to you through Sonder. Sonder can provide on-demand, 24/7, free and confidential support on a range of issues including psychological, safety, health and wellbeing needs. You and your family can access Sonder on 1800 234 561 or by downloading the Sonder app on your device, from the Google Play or App Store. This service will remain available to you for a further 30 days.
If you are unclear on anything covered in this letter, please contact me on (02) 9677 6404.
I wish you the best in your future endeavours.
Yours sincerely,
Tim Wren
Store Manager
Blacktown”[22]
Within the foregoing termination letter, Mr Wren notes that the Applicant was supposed to provide his show cause response in writing to Mr Brett Bartlett (Area Manager, North Area 2), but did not provide a response by the extended date of 26 October 2022. This was incorrect in that the Applicant had provided a show cause response, but it had been caught in a spam email folder and not sighted by Mr Bartlett (i.e. prior to Mr Bartlett making his decision to dismiss the Applicant). After becoming aware of (obtaining) the Applicant’s response (provided on 26 October 2022), the Respondent reallocated the matter to Ms Rina Gibbons (Area Manager, North Area 1) for reconsideration. She determined, after considering the Applicant’s show cause response, that the decision to dismiss the Applicant should stand (or remain unchanged).[23] Mr Wren gives the following evidence in this regard:
“The Show Cause Letter required Mr Best to provide a response to the allegations regarding his removal of the Hard Drive and our view that he had taken the Hard Drive without payment, resulting in personal financial gain. Mr Best was required to provide his response to Mr Brett Bartlett (Area Manager, North Area 2), my manager. That is because Mr Bartlett as Area Manager has the authority to decide to dismiss someone but I do not. My recollection was that Mr Best asked for an extension of time to respond to the Show Cause Letter, and I granted that extension, allowing him to respond by 5pm on 26 October 2022.
I recall that Mr Bartlett and I waited until 5pm on 26 October 2022 to see if Mr Best would provide a response to the Show Cause Letter. When we didn’t receive a response, I called Mr Best on a number of occasions on 27 October 2022 and left voice messages for him to call me back. I emailed him at 5:37pm on the same day inviting him to a further meeting on 29 October 2022. After another attempt to contact Mr Best by phone on 28 October 2022, I emailed him to notify him we would like to meet with him at 10am 29 October 2022. Mr Best did not show up for this meeting. As a result of this, and in the absence of a response to the Show Cause Letter, Jessica Dunn from Employee Services provided me with a letter to Mr Best (to be sent from me) confirming the termination of his employment (Termination Letter). A copy of the Termination Letter dated 31 October 2022 is annexed to this statement and marked ‘TW7’.
I subsequently became aware from Heidi Austin from Employee Services that there was an administrative error and that Mr Best had in fact provided a response to the Show Cause Letter, but that the response went into Mr Bartlett’s spam email folder (Written Response). Until the preparation of this statement, I had not seen the Written Response but understand from a conversation I had with Ms Austin on Friday 18 November 2022 that the Written Response was considered by Rina Gibbons (Area Manager North Area 1), who formed the view that the decision around dismissal should stand. I was instructed by Ms Austin to send a letter prepared for me by Employee Services to Mr Best confirming this outcome (Confirmation Letter), which I did on 18 November 2022. Annexed to this statement and marked ‘TW8’ is a copy of the Written Response. Annexed to this statement and marked ‘TW9’ is a copy of the Confirmation Letter.”[24]
The confirmation of termination letter issued to the Applicant on Friday, 18 November 2022 reads:
“18 November 2022
Dear Bryann,
Review of the outcome to the Investigation
I refer to our letter to you dated 22 October 2022 (the Letter), detailing the allegations made against you (the Allegations) and the findings of serious misconduct. We met with you on 15 October 2022 (the Meeting) to discuss the Allegations and provide you with an opportunity to respond.
In the Letter you were advised that, after considering your response to the Allegations during the Meeting, the Allegations that you removed high value stock from the Store without making payment, were substantiated. Furthermore, you were advised that your behaviour was considered to be serious misconduct and was in breach of, including but not limited to, the Woolworths Group Code of Conduct. As you are aware, BIG W team members are expected to comply with all Woolworths Group policies at all times during their employment.
Given the serious nature of your misconduct, you were advised that BIG W was considering disciplinary action, including terminating your employment. You were invited to provide any further information you wanted us to consider in response to the Allegations, as well as any other information we should be aware of as part of the decision-making process. This response was due by 5:00pm on 24 October 2022.
On 24 October 2022, you requested that you be afforded additional time to respond to the Letter. Accordingly, you were afforded an extension until 5:00pm on 26 October 2022. In a further letter to you dated 31 October 2022 we noted that, despite the extension afforded to you, to date, you did not provide a response or any correspondence with respect to the Letter.
Bryann, we confirm that on 26 October 2022, Brett Bartlett (Area Manager, North Area 2) did receive your response to the Letter. Unfortunately, the correspondence was directed to Mr Bartlett’s ‘junk’ folder and as such, your response and the additional information that was included, was not taken into consideration in determining the outcome. We sincerely apologise for this administrative error.
Your response included a timeline of events that occurred on 8 October 2022, 9 October 2022, 14 October 2022, 15 October 2022, 22 October 2022 and 24 October 2022. It also included your admission to removing the hard drive from the lock up area among other things. Additional attachments on the correspondence included receipts of purchases from Big W Blacktown and a letter from Marsden Eye Specialists.
Outcome - Confirmation of Termination of Employment
Due to the administrative error, Rina Gibbons (Area Manager, North Area 1) acted as the decision maker in relation to the matter. Ms Gibbons has taken all relevant matters into account, including your responses to the Allegations during the Meeting, the findings of the investigation, your response to the Letter as well as your employment history and length of service.
Bryann, we confirm that the conduct you have engaged in constitutes serious misconduct and, without intervention, would have resulted in a personal financial gain and loss to the business as a direct result.
Furthermore, we maintain that we are of the view that you have failed to demonstrate honesty, accountability or remorse throughout the investigation and, as such, we have concerns regarding the trust and confidence we are able to place in you as a team member.
In taking all of the circumstances into consideration, including the serious nature of your behaviour, BIG W confirms your termination date of 31 October 2022 will not be altered.
If you require a separation certificate or copies of payslips, please contact People Services on [email protected]. Please note, it may take up to 14 days after the date of your termination before these documents are available to be provided to you.
Confidentiality
Please also remember that this investigation and the outcomes are confidential. You must not discuss it with any other employee, except someone who is acting as a support person for you.
Ongoing Support
Bryann, I would like to take the opportunity to remind you of the support that is available to you through Sonder. Sonder can provide on-demand, 24/7, free and confidential support on a range of issues including psychological, safety, health and wellbeing needs. You and your family can access Sonder on 1800 234 561 or by downloading the Sonder app on your device, from the Google Play or App Store. This service will remain available to you for a further 30 days.
If you are unclear on anything covered in this letter, please contact me on (02) 9677 6404.
I wish you the best in your future endeavours.
Yours sincerely,
Tim Wren
Store Manager
BIG W Blacktownon behalf of
Rina Gibbons
Area Manager
North Area 1”[25]
Applicant’s legal obligations (as an employee) to the Respondent (as his employer)
Whether express or implied, every employee has a duty of fidelity to their employer.[26]
Sometimes also described as a duty of loyalty and good faith, the scope of the duty of fidelity was outlined by Palmer J in Digital Pulse Pty Ltd v Harris,[27] where his Honour said:
“[20] An employee has a duty to act in the interests of the employer with good faith and fidelity. That duty is implied in every contract of employment if it is not otherwise imposed by an express term. In addition, the duty is imposed upon every employee by the law of fiduciaries, the relationship of employer and employee being recognised as a paradigmatic fiduciary relationship.
[21] The obligations imposed by the duty are not coterminous with the employee’s normal working hours: they govern all the activities of the employee, whenever undertaken, which are within the sphere of the employer’s business operations and which could materially affect the employer’s business interests. Whether a particular activity could materially affect the employer’s business interests is a question of fact and degree.
[22] The duty of loyalty requires that an employee not place himself or herself in a position in which the employee’s own interest in a transaction within the sphere of the employer’s business operations conflicts with the employee’s duty to act solely in the employer’s interest in relation to that transaction. A fortiori, an employee may not take for himself or herself an opportunity within the sphere of the employer’s business operations without the employer’s fully informed consent.”.[28]
The duty of fidelity is essentially replicated in the Woolworths Group Code of Conduct (Woolworth’s Code), that applied to the Applicant during his employment with the Respondent.[29] The Applicant has never asserted in these proceedings that he was not bound by the Woolworth’s Code. Further, clauses 2.1.1 and 2.1.2 of the Big W Stores Agreement 2019 (which relevantly applied to the Applicant at the time of his dismissal), reads:
“2.1 What are BIG W’s standards and policies?
2.1.1 BIG W aspires to be a great place to work and a great place to shop. We are all responsible for contributing to an environment where everyone at BIG W is treated with dignity, courtesy and respect. To ensure we do the right thing by our teams, our customers and our communities, BIG W has standards and policies that we expect our team members to follow at all times.
2.1.2 All team members at BIG W are required to read, understand and follow the [Woolworth’s] Code of Conduct and all applicable BIG W policies. However, such policies are not incorporated into this Agreement or any team member’s contract of employment. The [Woolworth’s] Code of Conduct and all policies are available on the BIG W intranet, and may be updated from time to time.”
Relevant law regarding inferences and circumstantial evidence
Both parties in these proceedings request that I draw inferences from the facts before me, including by reference to circumstantial evidence.
The making of a finding by a decision-maker is not restricted to a finding of absolute truth or fact.[30] In many cases, facts will be proven without the benefit of certainty, using probability considerations alone to draw an inference. As Menzies J stated in Jones v Dunkel[31], “[i]nferences from actual facts that are proved are just as much part of the evidence as those facts themselves”.[32]
In Charltons CJC Pty Ltd v Fitzgerald,[33] Pembroke J, helpfully summarised the relevant principles concerning circumstantial evidence, as follows:
“(a) Proof of any fact on the balance of probabilities may be established by circumstantial evidence: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [90]. That includes proof of primary or intermediate facts from which the court may infer a further fact: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579. The primary facts can themselves be the product of inference from other facts.
(b) A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts. Certainty is never possible, and is not required: Transport Industries Insurance Company Ltd v Longmuir [1997] 1 VR 125 at 141. All that is necessary is that ‘circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought’: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.
(c) For the purpose of considering whether the probabilities are satisfied in a case based on circumstantial evidence, the Court must consider ‘the accumulation of the evidence’: Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 535. It is appropriate ‘not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence’ by considering ‘the weight which is to be given to the united force of all the circumstances put together’: Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279.
(d) In a circumstantial case, the Court is often able to draw an inference from the combination of primary facts, although none of those facts in isolation would have supported the inference: Chamberlain at 536. The true picture will be derived from the accumulation of detail; often best appreciated by standing back and viewing it from a distance - making an informed, considered, qualitative appreciation of the whole; recognising that the overall effect is not necessarily the same as the sum total of the individual details. The analogy is of ‘strands in a cable’ rather than of ‘links in a chain’. Proof does not depend on the integrity of each link: Seltsam at [90] but on the combined strength of the multifarious strands.”[34]
In Bradshaw v McEwans[35], the High Court explained the difference between the criminal standard of proof and the civil standard, for the purposes of inferential reasoning, holding that “the [criminal standard] requires the facts to exclude reasonable hypotheses consistent with innocence, whereas the [civil standard] needs only circumstances raising a more probable inference in favour of what is alleged.”[36]
Given the Respondent’s attack on the testimony of the Applicant and his Mother, some of my findings in this decision necessitate considerations as to witness credibility. Significantly, I note that where adverse findings as to the credibility of a witness occur, available inferences against so-called “dishonest explainers” may be drawn with greater certainty.[37]
In Smith v Moore Paragon Australia Ltd[38] a Full Bench of the Australian Industrial Relations Commission (a predecessor to the Fair Work Commission), after reviewing relevant case law, set out the following summary of the principles in respect of the drawing of inferences:
a) an inference is assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts;
b) the drawing of an inference is part of the process of fact finding;
c) an inference can be drawn if it is reasonably open on the basis of agreed or proved facts;
d) the question whether a particular inference can be drawn from the facts found or agreed is a question of law;
e) where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference;
f) the circumstances must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture;
g) matters to be taken into account in drawing an inference include circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed;
h) generally it is not lawful to take into account moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations;
i) the degree of probability required to found the necessary inference will depend on the nature of the proceeding:
j) in a criminal case the facts must be such as to exclude reasonable hypotheses consistent with innocence,
k) in a civil case you need only circumstances raising a more probable inference in favour of what is alleged;
l) a party’s failure to give evidence on some issue in cases where it is within that party’s power to provide or give evidence, may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence.[39]
Finally, in Soulemezis v Dudley (Holdings) Pty Ltd[40], Kirby P specifically rejected the proposition that a decision-maker is required to specifically state that an inference has been drawn. In other words, it is “a mistake to conclude that a judge [or decision-maker] should or can set forth the reasoning process he has followed from one fact to another”, with the obligation to give reasons not necessitating “a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the Judge’s [or decision-maker’s] conclusion ... [but simply] to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues.”[41]
Relevant law regarding witness credibility
Assessing evidence as to credibility “apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence”. It has also been said that credible evidence is “that which meets the test of plausibility”.[42]
Making findings as to witness credibility requires a focus by the trier of fact as to the capacity of the evidence adopted or given by a witness to inspire belief as to the existence or non-existence of the relevant fact or facts asserted to exist or not exist by the witness. A finding in a civil proceeding that witness evidence is not credible is thus taken to be a finding that the testimony does not have the capacity to satisfy the relevant decision-maker, at least on the balance of probabilities, as to the existence or non-existence of the fact or facts asserted to exist or not exist.[43]
In EPI Environmental Technologies Inc v Symphony Plastic Technologies, Smith J said:[44]
“(i) First, it is essential to evaluate a witness’s performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence.
(ii) Second, witnesses can regularly lie. However, . . . [that] does not mean necessarily that the entirety of that witnesses [sic] evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie.”[45]
Generally, when a decision-maker makes findings of credit concerning a witness:
a) elaborate detail for such findings is not required; and
b) a detailed explanation for a decision to prefer the evidence of one witness over that of another is not required.[46]
Resolution of real issues in proceedings
In the Applicant’s submissions, and in his and his Mother’s evidence, the Applicant takes issue with almost all of the Respondent’s evidence and submissions. In this decision it has been unnecessary for me to resolve each and every contest between the parties. Rather, I have taken the approach stated by Callinan J in the High Court case of Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd[47]:
“But as a general proposition, all civil courts, including intermediate appellate courts, should confine themselves to the issues which are necessary for the disposition of the case.”[48]
Is the Applicant protected from unfair dismissal?
Section 385 of the Act qualifies a claim for unfair dismissal:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a)the person has been dismissed; and
(b)the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
The parties are not in dispute as to the following:
(a)The Application was made within the period required by s.394(2) of the Act.
(b)The Applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act.
(c)The Applicant was “dismissed” by the Respondent within the meaning of s.386 of the Act.
(d)The Small Business Fair Dismissal Code (as provided for in s.388 of the Act) does not apply.
(e)The Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
I accept and make findings consistent with the foregoing position of the parties.
Whether the Applicant’s dismissal was harsh, unjust, and/or unreasonable
Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)any other matters that the FWC considers relevant”.
The terms “harsh”, unjust” and “unreasonable” are to be given their ordinary meaning.
An Applicant (employee) carries the onus to prove that his or his dismissal was unfair.
It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give a matter(s) weight as a fundamental element in the decision making process. However, as Kitto J noted in Rathborne v Abel[49]:
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634.”[50]
(my emphasis)
s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related to his capacity or conduct
An employer bears the persuasive onus of establishing or proving that there was a valid reason for an employee’s dismissal.[51] The level of proof is on the balance of probabilities, at a reasonable level of satisfaction.[52] The fact that serious allegations are made does not alter the position in civil proceedings that the level of proof is based upon the balance of probabilities.[53]
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”.[54] Further, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[55]
Where a dismissal relates to conduct, the reason for the dismissal may be valid because the conduct occurred and justified dismissal. However, the reason may not be valid because the conduct did not occur, or it did occur but did not justify dismissal.[56] The question of whether the alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.[57] The onus of proof in relation to misconduct rests with an employer, and again, the standard of proof in respect of such misconduct is based upon the balance of probabilities.[58]
The Respondent submits that there was a valid (conduct) reason for the Applicant’s dismissal. That valid reason is set out in the termination letter issued to the Applicant on 31 October 2022 (and reiterated in the confirmation of termination letter issued to the Applicant on 18 November 2022), namely:
a) Theft: the Applicant, with the assistance of and/or in company with his Mother, removed a high value ($399) stock item (Hard Drive) from the Store without making payment on 8 October 2022.
b) In engaging in this theft, the Applicant:
i)engaged in misconduct, including serious misconduct;
ii)breached his employment contract with the Respondent, including the Woolworth’s Code;
iii)sought to obtain personal financial gain that would cause loss to the Respondent; and
iv)caused the Respondent to lose trust and confidence in the Applicant in a fundamental respect, including as a result of the Applicant failing to demonstrate honestly, accountability and/or remorse for his conduct.
The Applicant proclaims his innocence, and that of his Mother, and denies that on 8 October 2022 he engaged in the theft of the Hard Drive (in company with his Mother or otherwise).[59] In making this denial, the Applicant essentially says that the Hard Drive remained in the Store (hidden under pet beds in the pet aisle) from 8 October 2022 to 14 October 2022 (i.e. the Applicant’s Mother says that on 14 October 2022 she returned to the Store, removed the Hard Drive from its hiding place in the pet aisle under the pet beds, and purchased the Hard Drive).
In my view, particularly by reference to the Store’s CCTV video footage of the Applicant’s and his Mother’s conduct and behaviour on 8 October 2022, neither the Applicant nor his Mother are witnesses of truth. Their evidence, and their attempts to justify, corroborate and otherwise explain their conduct and behaviour, are not only unsatisfactory, unreliable, inconsistent and self-serving, but a farrago of lies. In the paragraphs that follow, I go into some detail as to the basis for this finding.
Mr Wren’s evidence, and his performance as a witness during the Hearing, stands to in stark contrast to that of the Applicant and the Applicant’s Mother. I found Mr Wren to give straight forward, no nonsense, factual and impartial answers to the questions that were asked of him. To the extent that there is any contest on the evidence between Mr Wren and the Applicant or the Applicant’s Mother, I have preferred the evidence of Mr Wren.
The cardboard ‘carrier’ box
The Applicant’s evidence is that at or around the end of his shift on Saturday, 8 October 2022, at 2:58pm, the Applicant entered the Storage Room, placed the Hard Drive in a cardboard box, and returned to the Service Desk or technology counter as he intended to buy the Hard Drive via Afterpay or place it on Layby.[60] The Applicant says that he then spotted his Mother close by with a trolley full of goods (at 3:05pm),[61] that she approached him,[62] and that he gestured to her that he wanted to speak to her.[63] In relation to placing the Hard Drive in a larger cardboard box, the Applicant’s evidence is that he was using this larger cardboard box as a “carrier box”, and so as to avoid paying (15 cents) for a Store re-useable bag.[64]
I do not accept the foregoing evidence of the Applicant for the following reasons:
a) There is no apparent utility (or necessity) in placing the Hard Drive (succinctly contained in its own cardboard packaging box) into another much larger cardboard box. One simply ends up with a bigger box to carry. There is nothing about the Hard Drive that gives rise to it being (on its own) easier (or otherwise more comfortable) to carry if it is placed in another vessel (e.g. a box or a bag). Indeed, on the video footage, one can see the Applicant place the Hard Drive (using one hand) into the larger cardboard box. He then awkwardly carries this larger cardboard box (at different stages) with two hands, or under his arm (i.e. in circumstances where he could have simply carried the Hard Drive (unconcealed) in one hand).
b) The Applicant’s evidence is that at the time he removed the Hard Drive from the Storage Room, he was not sure if he would purchase it via Afterpay or place it on lay-by. In other words, as at the time the Applicant removed the Hard Drive from the shelf in the Storage Room there was no need for a carrier box or carrier bag as the Applicant (on his own evidence) was yet to determine whether he would be making an immediate (Afterpay) or delayed (lay-by) purchase. If there was ever a need for a carrier box or bag for the Hard Drive, which is highly questionable, such a need would not arise at the time that the Applicant entered the Storage Room at around 3:00pm on 8 October 2022 (i.e. it would only arise at the time of the actual purchase of the Hard Drive).
c) The Store CCTV video footage does not show the Applicant ‘returning’ to the Service Desk or technology counter from the Storage Room. Rather, it shows the Applicant passing around the back of the Service Desk and technology counter (with the large cardboard box containing the Hard Drive), past two staff members serving at the Service Desk, and immediately thereafter walking straight towards his Mother who can be seen waiting close by to the technology counter in the pet aisle (i.e. around five metres from the technology counter). The video footage does not show the Applicant returning to (i.e. stopping at) the Service Desk or the technology counter prior to meeting up with his Mother in the pet aisle.[65]
d) The Store CCTV video footage does not show that the Applicant’s Mother ‘approached’ him, or that he “gestured” to her, after he came out of the Storage Room (with the large cardboard box under his arm containing the hard drive). During cross-examination, the Applicant’s evidence was that he put his “hand up” to “gesture” to his Mother that he wanted to speak to her.[66] By reference to the Store CCTV video footage, this simply never happened. What the Store CCTV video footage does show is that the Applicant’s Mother was positioned at the end of the pet aisle, being the aisle closest to the end of the technology counter, and that the Applicant was already aware that she was waiting there for him immediately after he exited the Storage Room (i.e. the Applicant left the Storage Room and, walking in a determined manner, took the most direct route from the Storage Room to the end of the pet aisle where his Mother was waiting with her trolley).
In relation to the cardboard carrier box, I make the following findings:
a) the Applicant entered the Storage Room with the intention to conceal and steal the Hard Drive;
b) the sole purpose of the large cardboard box was to use it as a vessel to conceal the Hard Drive whilst the Applicant transported it from the Storage Room to his Mother’s trolley; and
c) the Applicant exited the Storage Room and went straight to where his Mother was waiting for him at the end of the pet aisle because he knew that she was waiting there for him with a trolley to secrete the Hard Drive into, pending its subsequent removal (theft) from the Store (absent payment) on 8 October 2022.
The ‘discussion’ between the Applicant and his Mother in the pet aisle
The Applicant’s evidence is that upon meeting up with his Mother in the pet aisle, they engaged in a discussion. The elements of this discussion were:
a) the Applicant advised his Mother that he wanted to purchase an external hard drive from the Store as it was the only one left in stock;
b) the Applicant’s Mother asked him to show it to her;
c) The Applicant told his Mother it is inside the (large) cardboard box;
d) the Applicant’s Mother asked him how much does the Hard Drive cost;
e) the Applicant said $399;
f) the Applicant’s Mother told him to compare the price first before buying it as it may be cheaper elsewhere despite the staff discount.[67]
The Applicant says that at the conclusion of this discussion with his Mother, he reviewed her trolley and determined that given the trolley was full of goods there was no room for a large cardboard box, so he took the Hard Drive out of the large cardboard box, and handed the Hard Drive to his Mother.[68] He then says that his Mother lifted a dog bed that was on top of her trolley, showed it to the Applicant, and asked him if the dog bed would be a suitable gift. The Applicant says he made no comment to this query, and placed the item on top of his Mother’s trolley “so as not to draw unnecessary attention”, and walked back to the technology counter and disposed of the large cardboard box (as it was no longer needed “as intended”).[69]
I do not accept the foregoing evidence of the Applicant in relation to his interaction with his Mother upon meeting up with her in the pet aisle on 8 October 2022. It is contrary to the Store’s CCTV video footage.
In relation to the asserted conversation between the Applicant and his Mother in the pet aisle (at the time that the Applicant carried the cardboard carrier box out to her), I make the following findings:
a) the Applicant has made up or manufactured this conversation with his Mother in a feeble attempt to explain or justify his rendezvous with his Mother in the pet aisle on 8 October 2022;
b) any conversation that did occur between the Applicant and his Mother in the pet aisle was extremely brief (even transactional) and did not extend to the scope of the conversation that the Applicant asserts occurred in his evidence; and
c) the reason as to why this conversation or interaction occurred in the pet aisle, as opposed to the Applicant’s Mother approaching him at the technology counter to have this conversation, is completely unexplained.
The use of the words “so as not to draw unnecessary attention” in the Applicant’s evidence warrants particular analysis. Mr Fagir, Counsel for the Respondent, took the Applicant to these words during cross-examination, producing the following paradoxical exchange:
“Mr Fagir: OKAY, ALL RIGHT. NOW, YOU SAY AT [PARAGRAPH] 18 OF YOUR STATUTORY DECLARATION:
MY MOTHER LIFTED THE DOG BED THAT WAS ON TOP OF HER TROLLEY TO ASK ME IF IT’S OKAY TO GIFT IT TO A FRIEND. I WAS NOT KEEN TO COMMENT ON IT. I THEN PLACED THE ITEM ON HER TROLLEY SO AS NOT TO DRAW UNNECESSARY ATTENTION.
WHAT DO YOU MEAN, ‘DRAW UNNECESSARY ATTENTION’?
Applicant:
Essentially, just when I meant to say unnecessary attention, it’s just usually, you know, I don’t like that – it would actually involve, you know, customer inquiries. Like, they probably would want to know if that was other – if there was another one available, if they wanted to purchase that themselves, if I didn’t actually purchase it so I wanted to secure it, essentially, for myself. That’s what I meant by the unnecessary attention.
Mr Fagir:
Right, it’s already in your mum’s trolley. Your concern is a customer is going to see it and come along and demand that they buy it?
Applicant:
Not necessarily demand but inquire about it.”[70]
In my view, the foregoing cross-examination exchange identifies a deceptively true admission by the Applicant that his rendezvous with his Mother in the pet aisle was staged in a manner so as not to draw unnecessary attention to the removal (theft) of the Hard Drive from the Store. The assertion that the Applicant’s conduct was undertaken so as to ensure a customer inquiry in respect of the Hard Drive would not occur is wholly nonsensical.
Hiding the Hard Drive under pet beds in the pet aisle
The Applicant gave the following evidence in relation to his assertion that he, at the suggestion or direction of his Mother, hid the Hard Drive under pet beds in the Store’s pet aisle on 8 October 2022 (for the purposes of subsequent retrieval and purchase):
“19. [After the Hard Drive had been placed in my Mother’s trolley] ‘My mother walked away from that aisle to start checking the websites from her phone to compare prices for the item. I left the item in the care of my mother. I trust my mother and have complete confidence that the item was safe in her possession. I had no reason to believe otherwise.
20. When I finished my shift at 3:05pm, I located my mother in the store and found her somewhere in the pets’ department with the item in her possession. She was at the pets’ department for she returned the unwanted dog bed.
21. When I approached her, my mother informed me that the websites were not loading up properly on her phone. She suggested to me, we go to the shops physically, particularly, JB Hi-Fi first.
22. I mentioned to my mother that it would not be appropriate for me to return the hard drive back into the storeroom area as my shift had already ended and I already clocked off. I feel that when I am off-duty, I am a customer, like my mother.
23. My plan is to buy it, and then return it if I change my mind within 90 days, as per the store’s ‘change of mind’ policy.
24. But my mother suggested to me, that’s unnecessary inconvenience as we can leave now, confirm the price, and return later [that same day].
25. I tried to check if the WIFI on my phone was working but like my mother’s phone, the webpages for the item were not loading up.
26. Due to the fact we were not able to obtain a good signal in the store, my mother suggested to me to leave the item in the store but secure it underneath the pile of dog mats sitting on the shelves for the time being. The intention was to return to it later after we have checked the price of the item at JB Hi-Fi.
27. Despite my better judgment. I followed her advice. I placed the item securely under other stock, which was out of sight to other customers. My intention was to return to the store after we checked JB Hi-Fi before the store closes.
28. I personally did not think that the hard drive will be at risk under the dog beds because I am aware that often, an item of that value would be fitted with an internal security device that would alert the doors at the front of the store when anyone attempts to remove the item from the store without payment.
29. In my recollection, the external part of the box had a security sticker as well, so that assured me that any attempt to remove the item outside Big W without payment would be deterred by the store’s security and staff manning the front.
30. After securing the hard drive, my mother and I spent another 20 minutes shopping in the store and eventually purchased the Big W products trolley in particular a garden pot, for it was the only one left, at the front checkouts before we left the store.
31. Even though the security and the staff member manning the entrance have already seen and checked my mother’s trolley when she first walked in, my mother still offers her trolley for inspection before we leave Big W together.
133. Upon finally viewing the footage on 8 October, I saw myself enter the storeroom or lock up area that does not need a key to access to and place the item in the brown box (as I often do for many years whenever I purchase items in the Tech where I work), and then placed the hard drive on my mother’s trolley. That after I had clocked off at around 3:05pm, I had stayed in the store (proceed to walk out and travel towards an aisle to meet up with my mother; and did not leave the store until 3.28pm. The respondent was wrong to adduce that after I had clocked off, proceed to walk out of the store.
134. I acknowledged, I saw myself, entrusted the hard drive over to my mother as I asserted, and I can see my mother holding the item and read the descriptions on the box. I could not do this from my end, due to my limited vision. With the collated footages or snippets from selected CCTVs to use, there was no clear evidence of any form of concealing the item, let alone, walked the item outside the store, without payment (as alleged).”[71]
The cross-examination of the Applicant on this issue at the Hearing was as follows:
“Mr Fagir: All right, now, having been confronted with this difficulty, so you decided to put the hard drive under the pet beds?
Applicant: That’s correct.
Mr Fagir: Because it wasn’t appropriate for you to go back into the lock room, having finished your shift?
Applicant: Upon reflection, it was - - -
Mr Fagir: No, just stop – I’m not asking about your reflection. I’m asking you about the reasons why you didn’t do it at the time as described in your statutory declarations admission?
Applicant: As I’ve said or as you’ve said, I felt it was inappropriate for me to actually walk back into the stor[ag]e room after I’ve already finished my shift. I’m no longer on duty.
Mr Fagir: Okay, so can I suggest to you these were your options: (1) walk back into the stor[ag]e room and put it on the shelf; (2) find the team member who was on shift and say, ‘Do you mind putting this back in the stor[ag]e room’; (3) finding a team member and saying, ‘Can you put this on hold, it’s the last one and I want to buy it but not today’; (4) stash it under some pet beds. They were the four options that you had?
Applicant: Yes.
Mr Fagir: Don’t agree with me just because I’m putting it to you. Is that right?
Applicant: Well, those are the options that potentially available to me but during that time my – that’s my – I chose to actually hide it under the pet beds because I had intentions to return that day so I didn’t want to go through the whole process of actually putting it aside. I thought I could return to it on that day.
Mr Fagir: Okay. So go back in myself, not appropriate; give it to someone else to put on the shelf, not appropriate; give it to another team member to put on hold, not appropriate; stick it under the pet beds, that’s the most appropriate option as you perceived it in that moment?
Applicant: It was probably not the best option upon reflection. But that’s exactly what happened.
Mr Fagir: It’s not just that it wasn’t the best option. No one would ever think that, would they, Mr Best? I mean, it’s preposterous to say that someone of any intelligence would think through those four options and decide the best thing is to shove it under a pile of pet beds?
Applicant: I don’t know. I can’t speak for anyone else but that was the option I chose that day.
Mr Fagir: Why was the hard drive kept in a stor[ag]e room?
Applicant: That’s where – that’s where it was stocked.
Mr Fagir: Why?
Applicant: I assume that’s where it was meant to be kept. That’s where it was kept.
Mr Fagir: Mr Best, you understand perfectly well it’s because it costs $400 and there was a real risk of shoplifting and that’s why it’s kept in a stor[ag]e room and not put on a shelf like the $10 items?
Applicant: I – I – everything in the store has a risk of shoplifting, not necessarily higher ticket – anything in the store is at risk of being shoplifted and not necessarily that particular item.
Mr Fagir: Yes, but there’s a difference between losing something that costs $3 and something that costs $400. You’d agree with that, wouldn’t you?
Applicant: Yes, mean - - -
Mr Fagir: Mr Best, this isn’t complicated. If you disagree with what I’m putting to you just tell me you disagree?
Applicant: Yes.
Mr Fagir: You know the reason that the hard drive was kept in the stor[ag]e room is because it was high value and there was a particularly acute risk of theft?
Applicant: I – I don’t know about a particularly acute risk of theft.” [72]
I find that the Applicant’s evidence that he, at the suggestion or direction of his Mother, hid the Hard Drive under pet beds in the Store’s pet aisle on 8 October 2022, to be false. Whilst this falsity is reinforced by various events that occurred post the Applicant and his Mother exiting the Store later that day, for present purposes, I make the following specific findings:
a) The suggestion that the Applicant made a balanced ‘choice’, amongst a number of other choices (or options) available to him, to hide the Hard Drive under pet beds in the pet aisle, at the suggestion or direction of his Mother (or otherwise), is nonsense. It has been completely made up. The Store’s CCTV video footage clearly shows two other employees serving at the Service Desk during the time that the Applicant removed the Hard Drive from the Storeroom, travelled to his Mother (who was waiting at the end of the pet aisle for him), and (quickly) returned to the technology counter (located right next to the Service Desk).
b) In cross-examination the Applicant accepted that all of the following options were open and available to him “(1) walk back into the stor[ag]e room and put it [back] on the shelf; (2) find the team member who was on shift and say, ‘Do you mind putting this back in the stor[ag]e room [for me]’; (3) find a team member and say, ‘Can you put this on hold, it’s the last one and I want to buy it but not today’”. The Applicant’s evidence is that he also had a further (or fourth) option, namely, buying the Hard Drive, and thereafter returning it if he changed his mind within 90 days of purchase (as per the Store’s ‘change of mind’ policy), however, his Mother suggested to him that this would somehow be an unnecessary inconvenience[73] (notwithstanding that the Applicant attends the Store for two days every week to work).
c) Other than claiming that against his better judgement he followed his Mother’s suggestion to hide the Hard Drive under the pet beds, and stating that in retrospect it was not the best option, the Applicant has perplexingly failed to explain why he did not take up any of the four available options (beyond the hiding of the Hard Drive under the pet beds in the pet aisle) that were wholly open to him to adopt.
d) The Hard Drive was never hidden under pet beds in the Store’s pet aisle. It was secreted from the cardboard box being carried by the Applicant (from the Storage Room) and into his Mother’s trolley at 3:00pm on 8 October 2022, and thereafter (within the next half an hour) removed (stolen) from the Store. The fact that the Applicant has sought to advance a false and misleading story in an attempt to cover up his behaviour, and wasted the time and resources of this Commission and the Respondent in doing so, is to be strongly deprecated.
Applicant’s failure to return to the Store on 8 October 2022
The Applicant’s evidence is that the hiding of the Hard Drive under the pet beds in the pet aisle was only ever meant to be very short term (for about an hour on 8 October 2022). In other words, enough time for the Applicant and his Mother to leave the Store, physically attend upon other stores (in close proximity to the Store) who stock, or might stock, the Hard Drive, and determine whether the Hard Drive was being sold at those other stores at a cheaper retail price. The Applicant claims that he would then take this cheaper retail price back to the Respondent, and seek a retail price match on his Store purchase of the Hard Drive. Layered onto this cheaper (price matched) retail price would then be the Applicant’s staff (or team member) discount/s.[74]
Immediately upon leaving the Store on 8 October 2022, the Applicant’s evidence is that he and his Mother attended upon the JB Hi-Fi store (located in the same Westpoint Shopping Centre where the Store is located) and found the Hard Drive on sale for a retail price of $359. However, the Applicant says that because the Hard Drive was not in stock in the JB Hi-Fi store at Westpoint, the price match policy of the Respondent would not apply as it requires that the relevant item to be price matched not only be a cheaper price, but also in stock at the competitor’s store. It was at this point that the Applicant says that he resolved to simply return to the Store, and purchase the Hard Drive with his staff discount.[75] This was because, in part, he did not consider that ordering the Hard Drive at JB Hi-Fi and waiting for ‘up to’ two weeks for it to arrive was suitable.[76]
However, prior to returning to the Store and purchasing the Hard Drive, the Applicant’s evidence is that he and his Mother determined to have something to eat, replenish the saline solution in his contact lenses, and rest his eyes. After having had something to eat, whilst at the same time replenishing his saline solution (and resting his eyes), the Applicant says that he felt exhausted, and that he and his Mother left (drove out of) the Westpoint Shopping Centre. After driving halfway home, the Applicant’s evidence is that he remembered that he had forgotten to purchase the Hard Drive, but determined to continue home and purchase the Hard Drive the following day when he was at work (Sunday, 9 October 2022).[77]
The Applicant’s Mother’s evidence is that the Applicant’s decision to return to the Store, and purchase the Hard Drive with his staff discount (rather than place the Hard Drive on order and wait up to two weeks at JB Hi-Fi) was because the Applicant “need[ed] the Hard Drive for his studies”.[78] As to the Applicant and herself failing to return to the Store to purchase the Hard Drive after dining on 8 October 2022, the Applicant’s Mother says that after dining, the Applicant noticed the time, and because the Store would be shutting soon “we collectively decided to retrieve and buy the Hard Drive, the next day, as he’s [the Applicant’s] rostered [to work that day]”.[79] This evidence is in contrast to the Applicant’s evidence where he says that he only came to recall that the Hard Drive was still under the pet beds in the pet aisle (and had not been purchased by him or his Mother) after driving halfway home on 8 October 2022.[80]
During cross-examination of the Applicant and his Mother, the following additional concerns and inconsistencies in their evidence were identified:
a) The Applicant’s evidence is that the Store’s staff discount policy only entitles him to around 10 percent off the retail price (or price matched price) of an item.[81] Mr Wren’s evidence is that, additionally, staff members are entitled to a (once a month) flexi-boost discount of a further five percent discount (i.e. around a 15 percent staff discount in total).[82] The Applicant’s evidence, initially repeated in cross-examination,[83] was that the flexi-boost discount is “not a regular occurrence and mostly [applies] for apparel [clothing] goods only”.[84] However, during subsequent cross-examination, the Applicant accepted that the flexi-boost discount is essentially a bonus staff discount that can be used by staff members once a month to purchase anything in Store (i.e. not just apparel).[85]
b) During initial cross-examination, the Applicant’s evidence is that it would take him “about an hour” to replenish the saline solution in his contact lenses and allow his eyes to rest or recover (prior to reinserting his contact lenses).[86] Shortly after giving this evidence, under questioning about the Applicant’s movements and timelines, the Applicant changed his evidence and said that it took him two to three hours on 8 October 2022 to replenish his saline solution and allow his eyes to recover.[87] For clarity, having regard to the manner and context in which the cross-examination questions were put to the Applicant, I do not accept any suggestion that the Applicant was referring to “about an hour” generally, and then two to three hours on 8 October 2022 (i.e. it somehow took longer than usual to rest his eyes and replenish his contact lens saline solution on 8 October 2022). Rather, the cross-examination identifies that the Applicant changed and/or was tailoring his evidence in an attempt to adapt to the evolving propositions that were being put to him (as his initial evidence was being scrutinised for inconsistency and falsity).
c) Despite apparently sitting in the Westpoint Shopping Centre food court for the best part of three hours on 8 October 2022, the Applicant’s Mother could not explain why she did not leave her son (whilst he was resting his eyes) and return to the Store and purchase the Hard Drive.[88] Noting that both the Applicant and his Mother gave evidence that the Applicant had made a decision to purchase the Hard Drive from the Store (using the Applicant’s staff discount) post their visit JB Hi-Fi on 8 October 2022, the assertion by the Applicant’s Mother that she could not leave the Applicant alone in the food court for 15 minutes (across a three hour period) to return to the Store and purchase the Hard Drive makes absolutely no sense.[89]
Applicant’s failure to purchase the Hard Drive on 9 October 2022
The Applicant’s evidence is that despite (on Saturday, 8 October 2022) committing to purchase the Hard Drive on Sunday, 9 October 2022 (as he was working an 11:00am to 4:00pm shift in the Store that day), he forgot all about it (until he was driving home with his Mother at around 5:00pm on 9 October 2022).[90]
Despite commencing his shift late in the morning (at 11:00am) on 9 October 2022, the Applicant does not explain why he did not attend the Store prior to the commencement of his shift, retrieve the Hard Drive from under the pet beds in the pet aisle, and purchase it. Instead, the Applicant’s evidence is that he walked into the Store at the start of his shift (11:00am), and was immediately caught up attending to waiting customers.[91]
Whilst working his shift on 9 October 2022, the Applicant says that he became aware of a box of Pokémon card packs, and found the time to purchase those cards (36 individual packets) for a retail price of $216, less his staff discount, less his extra (once a month) five percent flexi-boost discount, and less “rewards savings” of $30.00, resulting in a total discounted purchase price of $152.25.[92]
At the end of his shift (4:00pm), the Applicant says that he and his Mother again went to the Westpoint Shopping Centre food court, had a meal, and replenished the Applicant’s saline solution (and gave his eyes a rest). On this occasion, however, the dining, replenishing and eye resting took less than an hour, as the Applicant and his Mother left the Westpoint Shopping Centre premises to drive home at “around 5:00pm”. It was during this drive home that the Applicant claims that he suddenly remembered the Hard Drive (that was apparently still under the pet beds in the pet aisle back at the Store), but determined to “not bother” going back to the Store on 9 October 2022, and instead resolved to return to the Store whilst he was off work that week, or “at most before I begin my next shift [at the Store] on Saturday (15 October)”.[93]
When the Applicant was allegedly “overwhelmed with other commitments” in the week commencing 10 October 2022 he “confirmed to the thought of buying the Hard Drive, when [his] next shift is on (15 October 2022)”.
Having regard to the evidence and observations set out at paragraphs [63] to [75] above, I do not accept that the Applicant’s failure to purchase the Hard Drive on 8 and/or 9 October 2022, and prior to his Mother allegedly purchasing it on 14 October 2022, arises because the Applicant ran out of time to make the purchase, forgot to make the purchase, or was otherwise too busy with other commitments to return to the Store and make the purchase. In this regard:
a) The Applicant accepts that his decision to hide the Hard Drive under pet beds in the pet aisle of the Store was unusual (or not the best option), and that hiding the Hard Drive was only meant to be a short term (for about an hour) concealment whilst he went off with his Mother to seek out a cheaper price (for price matching purposes).
b) The evidence of the Applicant’s Mother is that the Applicant “needed the Hard Drive for his studies”.[94]
c) The Applicant’s own evidence is that he was not prepared to wait up to two weeks for the Hard Drive to arrive into stock at another store (e.g. JB Hi-Fi), and that given that the Hard Drive was the last one in stock at the Store, he wanted to purchase it right away (on 8 October 2022). I note that the Applicant uses the term ‘up to’ two weeks, i.e. the Hard Drive may well have arrived in store at JB Hi-Fi, if ordered, much earlier (even within a couple of days) – but the Applicant did not, on his evidence, want to wait.
d) The Applicant’s Mother had ample opportunity to pop down to the Store on 8 October 2022, whilst the Applicant waited for her in the food court, and purchase the Hard Drive. She did not do so, and has not explained why she did not do so during a period of up to three hours (i.e. beyond not wanting to leave her son alone).[95] There is no evidence that the Applicant, whilst eating, resting his eyes, or replenishing his saline solution, required the physical presence of his Mother (or a carer) at all times.
e) The technology counter that the Applicant worked at on 9 October 2022 was located a mere five metres away from the pet aisle (where the Hard Drive was purportedly hidden under pet beds). The evidence discloses that the Applicant had ample opportunity before, during and after his shift on 9 October 2022 (including during his 15 minute shift rest break) to retrieve the Hard Drive from its purported hiding place under pet beds and purchase it, or place it on hold at the Service Desk, or return it to the Storage Room. He did none of these things.
f) Noting the events that occurred on Saturday, 8 October 2022, in relation to the Hard Drive, the evidence of the Applicant that he totally forgot about the Hard Drive the next day (on Sunday, 9 October 2022), and that the hidden Hard Drive did not once cross his mind during the whole of that five hour shift, in my view, is false. This finding as to falsity is reinforced by the Applicant himself in purchasing the Pokémon cards during his shift on 9 October 2022, and using not only his Store (or team member) discount for the purchase, but also his extra (once a month) five percent flexi-boost discount. Nowhere in the Applicant’s evidence in chief does he disclose or otherwise refer to his ability to access an extra (once a month) five percent flexi-boost discount (i.e. that he could have used on top of his staff (or team member) discount, to purchase the Hard Drive). Applying his staff and flexi-boost discounts to the Hard Drive (at $399) would have ultimately made it cheaper than the sale price of the Hard Drive at JB Hi-Fi ($359). Instead of using his flexi-boost discount on the Hard Drive, he used it to purchase Pokémon cards (which were being sold for a lower retail price (all up) of only $216). The Applicant’s story, let alone the mathematics as they concern the discounts available to him in respect of his purchase of the Hard Drive, simply does not add up. Further, having used his once a month flexi-boost discount on the Pokémon cards on 9 October 2022, he would not be able to use his flexi-boost discount again in October 2022 (in circumstances where the Applicant’s evidence is that he was purportedly “going to” purchase the Hard Drive in the week commencing 10 October 2022).
g) The Applicant’s assertions that he was too busy or overcommitted in the week commencing 10 October 2022 to drop past the Store and purchase the Hard Drive (between 10 and 14 October 2022) are not support by evidence (i.e. beyond the Applicant’s bare assertions). For example, the Applicant has produced no evidence of his university commitments that week, the need to sit mid-Semester exams that week, the scheduled medical appointments he had that week, or the “deferred written assessments” he was working on that week.[96] Nor has he specifically explained how these alleged commitments actually made him too busy to attend upon the Store at his earliest convenience so as to extract the Hard Drive from its purported hiding location under pet beds in the Store’s pet aisle (noting the extended operating hours of the Store each week). In other words, the Applicant’s evidence has inconsistently travelled from needing and wanting to buy the Hard Drive on 8 October 2022, to forgetting all about it on 9 October 2022, to I’ll buy the Hard Drive at some point when I am not that busy.
I find that the evidence of the Applicant and his Mother is false to the extent that it seeks to justify, excuse or otherwise explain the Applicant’s failure to purchase the Hard Drive on 8 and/or 9 October 2022. I reiterate my finding that the Hard Drive was never hidden under pet beds in the pet aisle. Rather, it was secreted from the cardboard box being carried by the Applicant (from the Storage Room) and into his Mother’s trolley at 3:00pm on 8 October 2022, and thereafter (within the next half an hour) removed (stolen) from the Store. The Applicant and his Mother’s evidence as to their failure to purchase the Hard Drive on 8 and/or 9 October 2022 is simply a continuation of their false and misleading narrative, in yet a further and on-going attempt to cover up their actual conduct and behaviour in secretly (or so they thought) removing the Hard Drive from the Store shortly before 3:30pm on 8 October 2022.
The purchase of the Hard Drive by the Applicant’s Mother on 14 October 2022
The Applicant’s Mother’s evidence is that whilst in the Store on 14 October 2022, she entered the pet aisle to retrieve the Hard Drive from its hiding place under the pet beds. The difficulty with this evidence is that it does not match the Store’s CCTV video footage, which identifies that the Applicant’s Mother did not enter the pet aisle at all during her visit to the Store on 14 October 2022 (again, noting that the Hard Drive was the only one in stock in the Store).[97]
Given the Store’s CCTV video footage of 14 October 2022, and noting that the Applicant’s Mother can be seen to use the electronic Store price checker to scan the Hard Drive (despite not having entered the pet aisle), I find that the Applicant’s Mother was in possession of the Hard Drive prior to and upon entering the Store on 14 October 2022. In other words, the Applicant’s Mother did not retrieve the Hard Drive from the Store on 14 October 2022, rather, she was already in possession of same prior to and when she first entered the Store. I also find that the purpose of the Applicant’s Mother entering the Store on 14 October 2022 was to purchase the Hard Drive that she and the Applicant had previously removed (stolen) from the Store on 8 October 2022, so as to thereafter falsely claim that the Hard Drive:
a)had remained hidden under pet beds in the pet aisle of the Store between 8 and 14 October 2022; and
b)was not removed from the Store (stolen) by the Applicant or his Mother (with the assistance of the Applicant) on 8 October 2022.
The purchase of the LEGO Marvel Sanctum Sanctorum (the notorious residence of Doctor Strange) by the Applicant’s Mother on 14 October 2022
In addition to purchasing the Hard Drive on 14 October 2022, the Applicant’s Mother also (in the same transaction) purchased the LEGO Marvel Sanctum Sanctorum, which was contained in its own large cardboard packaging box.
The Respondent alleges that on 14 October 2022 (at around 1pm), the Applicant’s Mother entered the Store with both the Hard Drive and the LEGO Marvel Sanctum Sanctorum camouflaged or hidden in her trolley, and then purchased both. In other words, given that Mr Wren had not identified the specific item/s of ‘removed’ stock that he had asked the Applicant (via telephone at 10:45am on 14 October 2022) to attend a meeting to discuss, the Applicant and his Mother were covering their bases via the Applicant’s Mother returning to the Store and purchasing both the Hard Drive and the LEGO Marvel Sanctum Sanctorum on 14 October 2022 (which had both previously been stolen from the Store).
The Store’s CCTV video footage of 14 October 2022 identifies that the Applicant’s Mother does not enter the Store’s toy aisle (where LEGO is stocked) prior to purchasing the LEGO Marvel Sanctum Sanctorum (along with the Hard Drive). The Applicant’s Mother says that this can be explained on the basis that she happened to stumble across the LEGO Marvel Sanctum Sanctorum (out of place) in the laundry/cleaning aisle (apparently misplaced or dumped there by another customer).
The Store’s CCTV video evidence on 14 October 2022 also identifies that the Applicant’s Mother enters the Store with a large cardboard box concealed in a bag, being a large cardboard box that very much fits the colours and dimensions of the LEGO Marvel Sanctum Sanctorum’s packaging.
Given my findings as to the theft of the Hard Drive, I do not consider it necessary to make findings as to the alleged theft of the LEGO Marvel Sanctum Sanctorum by the Applicant and/or his Mother. Indeed, it is not clear on the evidence what hand (or role) the Applicant had in such alleged theft. That said, I concur with the Respondent that the Applicant and his Mother’s evidence surrounding the alleged theft (and subsequent ‘purchase’) of the LEGO Marvel Sanctum Sanctorum is not to be believed.[98]
Summary as to valid reason
I find that the evidence overwhelming supports the reasons for the Applicant’s dismissal as set out or summarised in paragraph [50] of this decision. I equally find that such reasons for dismissal are valid, in that they are (on the evidence before me) unquestionably sound, defensible and well founded. This leans heavily towards a finding that the Applicant’s dismissal was not harsh, unjust and unreasonable.
s.387(b) - Whether the Applicant was notified of the valid reason for his dismissal; and s.387(c) - Whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct
Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant “was notified of that reason” and given an opportunity to respond to same. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the Act.[99] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, and in explicit, plain and clear terms.[100]
In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning the employee’s conduct so as to enable them to respond to the allegations and must be given an opportunity to defend themselves. As Justice Moore stated in Wadey v YMCA Canberra[101]:
“the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That… does not constitute an opportunity to defend.”[102]
The evidence discloses that the Applicant was notified of the reason (being a valid reason) for his dismissal, and was provided with the opportunity to respond to this reason for dismissal prior to and during the show cause process that led to his dismissal. Whilst the written response provided by the Applicant on 26 October 2022 was not sighted, and thus not considered, prior to the Applicant’s dismissal on 31 October 2022 (due to such response going into an email spam folder, see paragraph [23] of this decision), I accept that the evidence discloses that the Respondent, after becoming aware of the Applicant’s response, did consider that response prior to reaffirming its decision to dismiss the Applicant (see paragraphs [23] and [24] of this decision). I consider the criterion under s.387(b) and s.387(c) of the Act to be neutral considerations in the facts and circumstances of this case.
s.387(d) — Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal
As noted by a Full Bench of this Commission, “[t]he subsection is not concerned with whether or not the employee was informed that he or she could have a support person present”.[103]
The Applicant was provided with the opportunity to bring a support person to the meetings with Mr Wren leading up to his dismissal, and he attended these meetings with a support person. I therefore consider this criterion to be a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(e) — Whether the Applicant was warned about that unsatisfactory performance before his dismissal
As the Applicant’s dismissal did not relate to unsatisfactory performance (i.e. it concerned his ‘conduct’ on 8 October 2022), this factor is not relevant to present circumstances.
The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f)); and The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(g))
The Respondent employs some 170,000 employees. There is no evidence to suggest that the size of the Respondent’s enterprise likely impacted upon the procedures it followed in effecting the Applicant’s dismissal.
The Respondent employs dedicated human resource management specialists, and persons with human resources expertise.
Neither party put forward substantive or relevant submissions that go directly to either of the criterion under ss.387(f) and (g) of the Act. I treat both of these criterion as neutral considerations in this case.
s.387(h) - Any other matters that the Commission considers relevant
Relevantly, the Applicant raises the following ‘other matters’ that he says warrant a finding that his dismissal was harsh, unjust or unreasonable:
a) The Applicant was employed by the Respondent, and working at the Store, for almost 15 years. During that time the Applicant has not had any instances of misconduct, or reports of unsatisfactory performance or service.
b) The Applicant has a permanent disability (vision impairment) that the Respondent has been aware of since 2012.
c) The Applicant was dismissed without notice or payment in lieu of notice, rendering his dismissal harsh.
d) The Respondent’s decision to dismiss the Applicant was predetermined. This is evident (so the Applicant says) because the Respondent conducted a rushed and flawed investigation, and did not follow a fair and proper procedure in effecting the Applicant’s dismissal (noting that the Respondent failed to take into account the Applicant’s response (provided on 26 October 2022) prior to making its decision to dismiss him on 31 October 2022).
e) The Respondent has tampered with the Store’s CCTV video evidence, and/or the Store’s CCTV video footage supplied by the Respondent is incomplete and/or not legitimate/authentic. Further, if the Respondent did provide the whole (or all) of its CCTV video footage, it would prove the Applicant’s innocence by showing what actually happened on 8 and 14 October 2022.
f) The electronic security panels (at the Store entry/exit point) did not go off when the Applicant and his Mother left the Store on 8 October 2022, giving rise to an inference that the Applicant’s Mother’s trolley did not contain any stolen items on 8 October 2022. Further, the Applicant’s Mother voluntarily offered up her receipts and trolley to be checked by staff or security on 8 October 2022, leading to an inference that she had nothing to hide in her trolley that day (and thus no stolen goods concealed in her trolley).
g) The Applicant’s Mother paid for the Hard Drive on 14 October 2022. In other words, no harm no foul in that the Hard Drive was ultimately purchased and the Store has suffered no loss.
I do not accept that the matters referred to in subparagraphs (a) to (c), and (g), of the foregoing paragraph, in the circumstances of this case, weigh towards a finding that the Applicant’s dismissal was harsh, unjust or unreasonable. In this regard:
a) I reject the assertion that the Applicant’s length of service, and absence of prior misconduct or unsatisfactory performance:
·diminish the serious nature of the Applicant’s conduct (misconduct) on 8 October 2022; or
·relive the Applicant of the consequences of him engaging in such conduct on 8 October 2022 (i.e. the termination of his employment).
b) There is no suggestion on the evidence, objectively considered, that the Applicant’s vision impairment in any way impacted upon his actions in removing the Hard Drive from the Storage Room on 8 October 2022, and thereafter secreting it into his Mother’s trolley (for subsequent theft from the Store).
c) The Applicant would be well aware that the act of theft (or assisting others to engage in theft) is regarded by the wider community as wrong, and a serious matter. In this case, I find that the Applicant’s conduct on 8 October 2022 was wilful, and completely contrary to the trust that had been placed in him by the Respondent to be at all times loyal and honest in the performance of his work in the Respondent’s business, and at its workplace. In these circumstances, the suggestion that because the Applicant did not receive notice of termination, his dismissal was harsh, falls away.
d) The fact that the Hard Drive was ultimately paid for on 14 October 2022 does not alter the fact that it was stolen on 8 October 2022. It is apparent that the only reason the Applicant’s Mother paid for the Hard Drive was to attempt to cover up its original theft.
Procedural fairness is one factor that the Commission may take into consideration under s.387(h) of the Act when deciding if a dismissal has been harsh, unjust or unreasonable. It concerns the decision-making process followed or steps taken by a decision maker, rather than the actual decision itself.[104] Ordinarily, procedural fairness requires that an allegation be put to a person and that they be given an opportunity to answer it before a decision is made.[105] Further, although s.387(d) of the Act does not require an employer to inform an employee that they may have a support person present, that matter may be relevant in all the circumstances and taken into account under s.387(h).[106]
The Respondent makes the following submissions as to an alleged absence of procedural fairness in this case:
“The applicant alleges that his dismissal was procedurally unfair because his final response was not considered because a decision was made to dismiss him.
It is correct to say that the applicant’s second written response was not considered at the point of the original decision to dismiss (because it was captured by a spam filter and overlooked). When Woolworths discovered this fact, it arranged for a different person to re-make the decision. Having considered the response, the second decision maker unsurprisingly came to the view the applicant should be dismissed. It follows the original oversight had no bearing on the outcome.
Further and in any case, questions of procedural fairness in a serious misconduct case are in this case, as in most, a distraction. If the applicant is found after [the] hearing to have committed theft, any procedural defect will have no bearing on the question of fairness of the dismissal. Conversely, if the applicant is found not to have engaged in theft, Woolworths accepts that there would be no valid reason for dismissal and the only question to be considered is remedy.”[107]
I concur with the foregoing submissions of the Respondent. The Applicant’s response was ultimately considered by the Respondent, and had no bearing on the decision to dismiss him (rather, the Applicant’s response only served to reinforce the original dismissal decision that had been made). In any event, given my findings on the evidence before me in these proceedings, as to the Applicant’s conduct on 8 October 2022, and his subsequent conduct and actions in advancing false and untruthful evidence in an attempt to absolve himself (and his Mother) from wrongdoing, I do not accept that any issues of procedural fairness (or an absence thereof) in this case weigh in favour of a finding that the Applicant’s dismissal was harsh, unjust or unreasonable.
There is no evidence (at all) before me to support the Applicant’s claims that the Respondent has tampered with the Store’s CCTV video footage, withheld Store CCTV video footage favourable to the Applicant’s case, or otherwise produced Store CCTV video footage that is not authentic vision of the Applicant and his Mother’s relevant movements in the Store on 8 and 14 October 2022. In his submissions, and during the Hearing, the Applicant and his Mother repeatedly sought to claim that there were CCTV video cameras in certain parts of the Store to which footage had not been made available (even going to the extent of producing a mocked-up floor plan of the Store with the asserted location of various Store CCTV video cameras from which vision had not been produced). The probative value of this evidence quickly vanished once it became apparent that the CCTV video camera positioning in the Store had changed between 8 October 2022, and the date that the Applicant’s floor plan was based (being a week or two prior to the Hearing).[108]
Finally, I outright reject the suggestion that because Store:
a) security electronic monitoring systems at the entry/exit point of the Store did not activate or raise an alarm; and/or
b) personnel or security staff were offered to check the Applicant’s Mother’s trolley (but did not do so),
it is to be concluded (or inferred) that the Applicant and his Mother did not steal the Hard Drive on 8 October 2022.
Mr Wren’s evidence is that Store stock items (including large items) are removed (stolen) from the Store notwithstanding the Store’s security systems (including electronic tagging of items and CCTV video surveillance), and the presence of personnel (including dedicated security guards) monitoring and checking customer bags and trolleys.[109] In other words, Store security is not fail safe. Its use to deter, monitor and/or prevent theft needs to be balanced against not wanting to inconvenience the vast majority of law abiding customers who might eventually take offence or be uncomfortable with their possessions being thoroughly searched each time they visit the Store. This is especially so where the Applicant and his Mother were familiar with the staff at the Store, with the Applicant being a long term Store employee, and his Mother regularly attending the Store to shop and purchase all manner of items. In these circumstances, the contention that because Store security did not pull apart or unpack the Applicant’s Mother’s trolley laden with random goods on 8 October 2022, at the time that the Applicant and/or his Mother passed through the Store checkout (having bought a pot) and/or through the electronic monitoring barriers (sounding or not sounding an alarm), says nothing about the Applicant and his Mother’s conduct in the Store’s pet aisle only some twenty minutes prior.
I observe that the Applicant (in his written submissions) has made various allegations as to the conduct of the Respondent’s legal representatives in these proceedings. The Fair Work Commission is not a branch office of the Legal Services Commissioner, the NSW Law Society, or the NSW Bar Association. That said, my impression of the conduct of the Respondent’s legal representatives in these proceedings is that they have at all times acted with integrity, transparency and professionalism. In other words, there is no evidence before me to in any way support the allegations that the Applicant has made against the Respondent’s legal representatives.
Was the Applicant’s dismissal unfair?
I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). In relation to these criterion, I have found that:
(a) one of the criterion (valid reason) weighs against a finding that the Applicant’s dismissal was harsh, unjust and unreasonable; and
(b)other relevant criterion are neutral considerations, or do not weigh in favour of a finding as to the Applicant’s dismissal being harsh, unjust, or unreasonable.
In reaching the conclusion that follows (on the ultimate issue as to whether or not the Applicant’s dismissal was unfair), I have also:
a)considered and given due weight to each of the criterion under s.387 of the Act as a fundamental element in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable;[110] and
b) sought to ensure that a “fair go all round” has been accorded to both the Applicant and Respondent, as employee and employer respectively.[111]
In view of my findings and conclusions set out in this decision, I find that the Applicant’s dismissal was not unfair (i.e. harsh, unjust or unreasonable). Rather, it was wholly justified. I dismiss the Application in these proceedings. An order to this effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Mr Bryann Best (Applicant), appeared for himself, assisted by his mother, Ms Toni Best.
Mr Oshie Fagir, of Counsel, instructed by Ms Katie Kossian, Senior Associate, Maddocks lawyers, appeared with permission on behalf of the Respondent.
[1] At the time that the Applicant filed his Application, he was represented by “Employee Dismissals” (an employment law consultancy business).
[2] Exhibit A1.
[3] Exhibit A2.
[4] Exhibit R1.
[5] Exhibit A2, at [7].
[6] Transcript, PN438; Exhibit R1, at [35] to [36].
[7] Ibid.
[8] For example, Dyson vacuums, smart phones, fitness watches, laptops, external or portable hard drives, cameras, gaming consoles, etc.
[9] Exhibit R1, at [7]-[9].
[10] Transcript, PN438.
[11] See, for example, Exhibit A2, at [200].
[12] Ibid, at [10]. Transcript, PN199-PN203.
[13] Exhibit R1, at [10]-[12].
[14] Ibid, at [15].
[15] Ibid, at [24]-[25].
[16] Ibid, at [16]-[19].
[17] Ibid, at [20]-[23].
[18] Ibid, at [27].
[19] Ibid, at [28]-[29].
[20] Ibid, at Annexure ‘TW6’.
[21] Ibid, at [29].
[22] Ibid, at Annexure ‘TW7’.
[23] Ibid, at [30] to [31].
[24] Ibid, at [29]-[31].
[25] Ibid, at Annexure ‘TW9’.
[26] Blyth Chemicals v Bushnell (1933) 49 CLR 66, at 81-82.
[27] (2002) 166 FLR 421.
[28] Ibid, at 424, [20]-[22].
[29] Exhibit R1, at Annexure ‘TW4’. See Woolworth’s Code of Conduct, Court Book pp.112, 130-132, and 141.
[30] Shepherd v R (1990) 170 CLR 573, at [4].
[31] (1959) 101 CLR 298.
[32] Ibid, at 309.
[33] [2013] NSWSC 350 (24 April 2013).
[34] Ibid, at [11] (referring to Kerracher J’s decision in United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408 (at [71]-[72])).
[35] (1951) 217 ALR 1.
[36] Ibid, at 2 and 5 (citing Richard Evans & Co Ltd v Astley [1911] AC 674, at 687).
[37] Health v Arumugam [1998] VR 319, at 330 per Fullagher J.
[38] [2002] AIRC 317, PR915674, 12 March 2002, Ross VP, Lacy SDP and Simmonds C.
[39] Ibid, at [62].
[40] (1987) 10 NSWLR 247.
[41] Ibid, at 259 and 274.
[42] O'Kane v Freelancer International Pty Ltd [2018] FCCA 933, at [19]-[20], per Manousaridis J.
[43] Ibid.
[44] EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch).
[45] Ibid, at [74] (as also cited in O'Kane v Freelancer International Pty Ltd [2018] FCCA 933, at [22]).
[46] Sweeney v He [2023] NSWCA 68, at [182] per Brereton JA, applying Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
[47] (2006) 231 ALR 663; [2006] HCA 55.
[48] Ibid, at [172].
[49] (1964) 38 ALJR 293.
[50] Ibid, at 301.
[51] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, at 412; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, at 204.
[52] Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362 (per Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).
[53] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).
[54] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.
[55] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.
[56] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, at [7]; Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092, at [117]; Titan Plant Hire Pty Ltd v Van Malsen[2016] FWCFB 5520, 263 IR 1, at [28].
[57] King v Freshmore (Vic) Pty Ltd[2000] AIRC 1019, Print S4213 , at [23] to [24].
[58] Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 1995 (Cth), s.140.
[59] Exhibit A1, at [125] to [126].
[60] Exhibit A1, at [3]-[5].
[61] Ibid, at [7].
[62] Ibid, at [11].
[63] Ibid.
[64] Ibid, at [3] to [6], and [12]. Transcript, PN192.
[65] Note Transcript, PN182-PN201, and PN320-PN326.
[66] Transcript, PN333.
[67] Exhibit A1, at [11] to [18].
[68] Ibid.
[69] Ibid.
[70] Transcript, PN354-PN357.
[71] Exhibit A1, at [19] to [31], and [133] to [134].
[72] Transcript, PN366-PN378.
[73] Exhibit A1, at [23]-[24].
[74] Exhibit A1, at [14]-[15].
[75] Ibid, at [32]-[34].
[76] Ibid, at [34].
[77] Ibid, at [35], and [41]-[42].
[78] Exhibit A2, at [63].
[79] Ibid, at [65].
[80] Exhibit A1, at [41]-[42].
[81] Ibid, at [169].
[82] Exhibit R1, at [20]
[83] Transcript, PN210-PN214.
[84] Exhibit A1, at [169].
[85] Transcript, PN289-PN290.
[86] Transcript, PN260-PN263.
[87] Transcript, PN304-PN306. See also at PN318-PN320.
[88] Transcript, PN615-PN616.
[89] Compare Exhibit A1, at [55]. In other words, there is no suggestion that the Applicant is unable to be on his own, or requires the presence of his Mother with him at all times when he is not at work, or otherwise.
[90] Exhibit A1, at [51].
[91] Exhibit A1, at [43].
[92] Ibid, at [44]-[45], and Annexure K.
[93] Ibid, at [50]-[54].
[94] Exhibit A2, at [63].
[95] Compare Exhibit A1, at [125] to [126]: the Applicant is his “own man” who does not need to even contact his Mother when he is away from her, and whilst he is vision impaired he considers himself to be an independent and “a capable person”.
[96] I note the Applicant’s evidence found at Exhibit A1, paragraph [141], and Annexure G. But this evidence concerns the period on and after 14 October 2022
[97] See also Transcript, PN712-PN720.
[98] See issues raised in Respondent’s Submissions, 15 May 2023, at [31], and [36] to [37].
[99] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
[100] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). See also Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), at [41]; Read v Gordon Square Child Care Centre Inc[2013] FWCFB 762 (Acton DP, Deegan C and Gregory C), at [46] to [49].
[101] [1996] IRCA 568.
[102] Ibid.
[103] Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835, at [84].
[104] Telstra Corporation v Streeter [2008] AIRCFB 15, at [27].
[105] Kioa v West [1985] HCA 81, at [22] (per Wilson J). See also at [11], per Gibbs CJ.
[106] Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835, at [84].
[107] Respondent’s Closing Submissions, 15 May 2023, at [43]-[45].
[108] Transcript, PN747-PN754, and PN816-PN834.
[109] Exhibit R1, at [40] to [42].
[110] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, at [51]. See also Smith v Moore Paragon Australia LtdPR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [92]; Edwards v Justice Giudice [1999] FCA 1836, at [6] to [7].
[111] See s.381 of the Fair Work Act 2009.
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