Clarke v Spotlight Stores Pty Ltd
[1996] IRCA 446
•16 September 1996
DECISION NO: 446/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DI96/1026
BETWEEN:
MICHELLE KIM CLARKE
Applicant
AND
SPOTLIGHT STORES PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: DARWIN
DATE: 16 SEPTEMBER 1996
REASONS FOR DECISION
Delivered ex tempore - revised from the transcript
The applicant seeks a remedy under s170EA of the Industrial Relations Act 1988 (“the Act”) following the termination of her employment by the respondent on 15 March this year. The Court is required to review the employer's decision to dismiss the applicant and to ascertain whether or not the employer had a valid reason pursuant to s170DE(1) of the Act. Under s170EDA(1)(a) of the Act the employer carries the onus of proof that it had a valid reason.
Findings on the evidence.
There is little real dispute on the evidence in these proceedings. The applicant's account was that on 14 March she arranged for the delivery of a rug, cash on delivery. The relevant employee who despatched the rug was Mr Ross. When he returned from the delivery the applicant was busy with a customer. Mr Ross handed her two $100.00 notes. Because the applicant was busy with a customer she did not have the opportunity to put the money through the till. She placed the money in a bag she used for work and continued to serve the customer. She then forgot about the money. Later that day as she was rushing to an appointment she was asked by Mr Ross about a receipt for the money. She said that the exchange between the two was a quick exchange about whether or not a receipt was required. She gathered her bag and samples and then left for two appointments that she was running late for. The following morning the applicant was again busy and did not think of the money.
The matter came to the respondent's attention because on the afternoon of 14 March Mr Ross queried whether it had been receipted. The manageress, Ms Grigg, ascertained that it had not been receipted. She also ascertained that Mr Ross had had a conversation with the applicant about the money.
The following day at about lunch time Ms Grigg ascertained that the money had still not been receipted through the till. She determined to ask the applicant about it in the presence of another employee, Mr Churchill. On Ms Grigg's version the applicant was agitated during the interview. When she was asked about the money she had said it was in her desk, she had been busy, and had forgotten about it. Mr Churchill then accompanied the applicant to her desk. The applicant had searched it and then pulled the money from her bag. Ms Grigg had then advised the applicant that she did not accept her version of events that she did not intend to steal the money. In particular she referred to the fact that Mr Ross had previously raised the transaction with her.
Ms Grigg then called her head office and had been told to report the matter to the police. Ms Grigg called the police and advised them what had happened and had been told by the police that the employer had a case that this was theft. The police arrived at the respondent's premises. Before the applicant was taken away by the police Ms Grigg, on the advice of her head office, advised the applicant that her employment had been terminated. The applicant was then arrested, taken to Berrimah Police Station and questioned. Later that afternoon she returned to the respondent's premises and was given formal advice that she had been terminated for "theft of money from furnishing department." The applicant was not charged with theft by the police.
Ms Grigg gave evidence that she was convinced that the applicant had intended to keep the money. She said, "I felt quite definitely that she had intended to keep the money." The factors that she said went to her state of mind were the fact that “when you discuss the money it would trigger your memory”, the fact that she “took the money from the drawer to her bag,” and that “it should not have gone to her bag”. She further said that the applicant had no reason to put the money in the bag. There was the fact that the money had been in the bag for 24 hours with no relevant paperwork.
The applicant's statement to police is in evidence. It generally accords with her evidence before the Court. Two witnesses who may have shed some light on events were not called. The first was Mr Ross, who gave the money to the applicant. The second was Mr Churchill, who accompanied the applicant to her desk to retrieve the money. The respondent attempted unsuccessfully to call both those witnesses.
Did the employer have a valid reason to terminate the applicant's employment?
The employer puts it case on two bases: the first was that the applicant intended to steal the money; the second was that the employer honestly believed that she did intend to steal the money.
The reasonableness of the respondent's reasoning process is under scrutiny here. The first matter to note is that the allegation here is a serious one. It was made against a loyal and diligent employee whose probity had never been questioned. As a matter of human experience people do not reach a conclusion that such a serious matter is made out except upon evidentiary material that satisfies them that an innocent explanation is not open. In a court, the matter is codified in s140 of the Evidence Act 1995 (Cwlth) which refers to the onus of proof in civil matters.
Here I am satisfied that the respondent did not satisfactorily investigate and deliberate on the material before it reached the conclusion that it did. In particular, the applicant's innocent explanation was one that, given background material available to the respondent, was plausible. I refer here to the evidence that she gave that it was commonplace for her to receive money from customers and put it in that particular bag as she went to appointments on her way home. Further, she had asked Ms Grigg for a cash box on two occasions. Perhaps more significantly the applicant gave evidence that she had been busy serving a customer when she was handed the money. She had been rushing to appointments when she had discussed the receipt with Mr Ross. She had been busy the following morning. She had told Mr Churchill, as she walked to her desk, that she was not sure if the money was in the drawer or in the bag. She gave evidence that she used that bag for work duties with the respondent.
Had all these matters been the subject of some substantial deliberation by Ms Grigg, I am satisfied that it is unlikely she would have reached the conclusion that she did. Further, it is significant that she appears to have relied on advice from her own head office and from the police that there was sufficient material to reach the conclusion that she did reach. Her own head office could not have been better informed than she was. The police were not called in this case and it is common ground that no charges were laid.
I propose to follow the reasoning in Sangwin v Imogen Pty Ltd (trading as Carleton Custom Upholstery) (von Doussa J, 8 March 1996, unreported) here. I am not satisfied that it was open for the employer to conclude that the applicant was a thief. I am not satisfied that the respondent reasonably believed that she had been guilty of such serious misconduct. It follows from this that I am satisfied that the respondent has not discharged its onus of proof and has thus breached s170DE(1) of the Act.
Remedy.
It was common ground that reinstatement was impracticable. The applicant seeks compensation for her wage loss and for mental distress associated with the circumstances of the termination of her employment. As to the latter, no medical evidence was called and I am not satisfied on the authorities, and in the absence of such evidence, that it is a relevant matter for an award of compensation in this case.
The applicant was unemployed for two months. She then obtained other employment at a wage rate of $100.00 per week less than the $500.00 per week she was earning with the respondent. Her wage losses to date can be calculated at about $5,800.00. There was no material before the Court which would suggest that her employment would not have continued but for the unlawful act of the respondent. She was earning $500.00 per week gross, including a bonus, so the limit of compensation under s170EE(2) of the Act is $12,500.00.
I am not satisfied that there was any evidence before me that would indicate that there should be any discount for contingencies on the maximum amount of compensation that may be awarded here. I am satisfied that it is reasonably probable that as a result of the unlawful act of the respondent the applicant will lose at least $12,500.00. She has already lost $5,800.00 and her losses are continuing at the rate of $100.00 per week. In those circumstances I am satisfied that a proper award of compensation for the respondent's unlawful act is $12,500.00 and I propose to order that the respondent pay that amount to the applicant in compensation.
I certify that this and the preceding five (5)pages
are a true copy of the reasons for decision of
Judicial Registrar Murphy as recorded in the transcript
and revised by the Judicial Registrar.
Associate: KAREN HALSE
Dated: 16 September 1996
APPEARANCES
Counsel appearing for the applicant: MR PRIESTLEY Solicitors for the applicant: WATERS JAMES MCCORMACK Counsel appearing for the respondent: MR J WITHNALL Solicitors for the respondent: WITHNALL CAVANAGH & MALEY Date of Hearing: 16 SEPTEMBER 1996 Date of Judgment: 16 SEPTEMBER 1996
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - VALID REASON - alleged SERIOUS MISCONDUCT - allegation of theft - whether allegation made out or sufficient enquiry - onus of proof.
Industrial Relations Act 1988 (Cwlth) ss170DE, 170EDA, 170EE.
Sangwin v Imogen Pty Ltd (trading as Carleton Custom Upholstery) (von Doussa J, 8 March 1996, unreported)
CLARKE v SPOTLIGHT STORES PTY LTD
DI96/1026
Before: MURPHY JR
Place: DARWIN
Date of hearing: 16 SEPTEMBER 1996
Date of judgment: 16 SEPTEMBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DI96/1026
BETWEEN:
MICHELLE KIM CLARKE
Applicant
AND
SPOTLIGHT STORES PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: DARWIN
DATE: 16 SEPTEMBER 1996
MINUTES OF ORDERS
THE COURT ORDERS AND DECLARES THAT:
The respondent has breached s170DE(1) of the Industrial Relations Act 1988;
The respondent pay to the applicant the sum of $12,500.00.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
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