Coles Supermarkets Pty Ltd v Bourchdan
[2009] NSWWCCPD 116
•17 September 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Coles Supermarkets Pty Ltd v Bourchdan [2009] NSWWCCPD 116 | |||||
| APPELLANT: | Coles Supermarkets Pty Ltd | |||||
| RESPONDENT: | Teresa Bourchdan | |||||
| INSURER: | Coles Group Ltd (self-insurer) | |||||
| FILE NUMBER: | A1-1172/09 | |||||
| ARBITRATOR: | Mr G Brown | |||||
| DATE OF ARBITRATOR’S DECISION: | 19 May 2009 | |||||
| DATE OF APPEAL DECISION: | 17 September 2009 | |||||
| SUBJECT MATTER OF DECISION: | Psychological injury; section 11A of the Workers Compensation Act 1987; whether the dismissal of the worker was reasonable. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Moray & Agnew | ||||
| Respondent: | Slattery Thompson | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 19 May 2009 is confirmed. | |||||
| The Appellant to pay the Respondent’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
The Worker, Ms Teresa Bourchdan, claimed that she suffered a psychological injury as a consequence of her suspension then dismissal from her employer, Coles Supermarkets Pty Ltd (‘Coles’) on 19 May 2008. The reason for her dismissal was that she was observed on CCTV engaging in behaviour that was in breach of Coles’ “Code of Conduct” (‘the Code’).
Coles denied liability on two bases: firstly, that Ms Bourchdan did not suffer a psychological injury and secondly, even if she did, Coles’ action was “reasonable action” within the meaning of Section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’).
By an Application to Resolve a Dispute (the ‘Application’) registered in the Commission on 17 February 2009, Ms Bourchdan sought weekly payments compensation from 19 May 2008 to date and continuing as a consequence of what she described as “anxiety depression” following her being informed on 13 May 2008 that she was suspended from work.
At a hearing before a Commission Arbitrator on 15 April 2009, the claim was amended to date from 19 May 2008 to 1 September 2008 at an agreed rate of pay of $420.00 per week. In a reserved decision delivered on 19 May 2009 the Arbitrator found in favour of Ms Bourchdan. He found that she suffered a psychological injury consequent upon her suspension and dismissal from Coles, and that Coles’ decision to terminate her employment was not reasonable in the circumstances. The Certificate of Determination issued on 19 May 2009 records the following orders:
“1. Respondent to pay the Applicant weekly payments of compensation pursuant to s36 of the 1987 Act for the period 19 May 2008 to 1 September 2008 at the rate of $420 per week.
2. Respondent to pay the Applicant’s costs as agreed or assessed.”
It is from this decision that Coles seeks leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
ISSUES IN DISPUTE
The principal issue in dispute on appeal is whether or not the Arbitrator erred in his application of section 11A of the 1987 Act. The Arbitrator concluded that Ms Bourchdan suffered a psychological injury within the meaning of section 4 of that Act, and that finding is not challenged on appeal.
In addition, Coles submits that: “The Arbitrator erred in relying upon uncorroborated evidence from the worker in relation to the views held by third parties following her dismissal.”
THE EVIDENCE
Ms Bourchdan’s Evidence
This case involved allegations by Coles that on several occasions during April and May 2008 Ms Bourchdan breached the company’s Code by removing items from the shelves without paying for them. Whilst Ms Bourchdan acknowledged that she took some items on occasions, she said that she simply put them aside intending to pay for them later. She claimed that she did not intend to breach the Code, that she was unaware of it in any event, and that her conduct was common practice amongst the employees. In these circumstances, she claimed that her termination did not constitute “reasonable action” by Coles.
In her Application Ms Bourchdan included a copy of a record of interview between herself and Steven Woods from Coles Group Asset Protection, which took place on 15 May 2008.
Relevant portions are as follows:
“Q17.What is your understanding of the Company Policy and Procedure in relation to the removal of stock from the premises by Team Members?
A.If they don’t pay for it you don’t give it to them.
Q18. Are there any exceptions to this Policy and Procedure that you are aware of?
A.No.
Q19.What is your understanding of the Company Policy and Procedure in relation to the consumption of stock?
A.You are not allowed to do it.
Q20. Are there any exceptions to this Policy and Procedure that you are aware of?
A.To my knowledge if I have been busy I just usually get a water or cigarettes and put them aside and paid for them later.”
Ms Bourchdan was shown a document titled “Coles Group Team Member Code of Conduct” which she said she did not recall having been made aware of previously. The following exchange then took place:
“Q32.I have received information that on occasions you have removed packets of cigarettes from the premises without tendering payment. What can you tell me about that information?
A.No, I wouldn’t of (sic) removed them. I may have put them aside and another staff member has paid for them. I have never taken cigarettes from work without payment.
Q33.I have received information that you have on several occasions failed to scan or deleted items for other Team Members and allowed the Team Members to remove the deleted items from the premises. What can you tell me about that information?
A. I have never deliberately done anything like that.”
Ms Bourchdan was then interviewed about CCTV footage of her at work on 4 April 2008. This exchange took place:
“Q44.Please describe for me in detail what you observed in the DVR footage from Friday 4 April 2008?
A.I seen (sic) myself grabbing a packet of cigarettes and putting them on the Service Desk and obviously paid for them later. I have always got my own cigarettes when I get to work and I get a checkseal on them. I have never done anything intentional. I would never risk my job over a packet of cigarettes.
Q45.Do you agree you are observed in the Kiosk area and you are observed removing a packet of Benson & Hedges cigarettes without tendering payment?
A. Yeah.
Q46.Please explain to me why you failed to tender payment for the cigarettes…when you removed them from the cigarette stand?
A.Obviously I still had my own cigarettes and when I had a break I went upstairs to get money.
Q47.Do you understand that it is a breach of Company Policy and Procedure to remove stock items and put them away for later purchase?
A.Now I know.”
The interview regarding events at work on 7 April 2008 was as follows:
“Q55.Please describe for me in detail what you observed in the DVR footage from Monday 7 April 2008?
A.I took the packet of cigarettes and put them on the service counter again. I did not take them home without paying for them. That’s two different things.
Q56.Do you agree you are observed in the Kiosk area and you are observed removing one packet of Benson & Hedges cigarettes without tendering payment at the time?
A.Yes, it could be that I took the cigarettes and put them on the Service counter and paid for them later.
Q57.Please explain to me why you failed to tender payment for the cigarettes…at the time of removing them from the cigarette stand?
A. It would be the same thing.”
A similar interview took place regarding events on 11 April 2008 as follows:
“Q66.Please describe for me in detail what you observed in the DVR footage from Friday 11 April 2008?
A.I was in the Kiosk and I removed a packet of B&H for myself and a packet of Winfield Blue for Jymela or her other sister. I would scan the cigarettes at the register and Sue didn’t have enough money and put both packets on service till she went out and got money. I think at the time that she was going to pay for my cigarettes as well and she went back upstairs to get the money.
Q67.Do you agree you are observed in the Kiosk area and you are observed removing packets of cigarettes without tendering payment at the time?
A.Not straight away. I paid later.
Q68. Please explain to me why you failed to tender payment for the cigarettes…
A.The same answer as before. I don’t bring any money down unless I show someone upstairs.”
Events on 14 April 2008 were discussed as follows:
“Q77.Please describe for me in detail what you observed in the DVR footage from Monday 14 April 2008?
A.I was at the Service Desk and Annie [Antoinette Frangieh] came to the Service Desk with a packet of chips and I put a checkseal on the packet of chips.
Q81.Did you understand at the time of putting a checkseal on the packet of chips without proof of payment being tendered that you were seriously breaching Company Policy and Procedure?
A.Yeah. But I would of (sic) asked her if she had a receipt but I would of (sic) definitely asked her if she had paid for them or gotten them from somewhere else.”
On 17 April 2008 Antoinette Frangieh, a fellow employee, placed at Ms Bourchdan’s register a fleecy top valued at $9.99 and a packet of cigarettes valued at $11.63, but the cigarettes were then deleted from the transaction. Ms Bourchdan agreed that the DVR footage on that day showed her serving Ms Frangieh with the fleecy top and a packet of cigarettes, both of which were placed in a shopping bag.. When asked why she had deleted the packet of cigarettes, Ms Bourchdan replied: “I truly cant remember. I haven’t done anything intentional.”
Footage taken on 7 May 2008 was described by Ms Bourchdan as follows:
“A.I was register five and I served Annie who had a heater, a noodles packet and two packets of cigarettes. I scanned all the items and then deleted the cigarettes because she said that she didn’t want them. But then I saw her put the cigarettes in the same bag.
Q103.Do you agree that you are the operator and you scan two packets of cigarettes and then delete those items and allow the Team Member to place them in a plastic shopping bag?
A.I didn’t allow her to place them in the plastic bag. It wasn’t intentional.
Q107.Please explain to me why you removed the two packets of cigarettes from the transaction and allowed the Team Member to remove them from the premises without tendering payment for them?
A.I deleted them because she didn’t want them and I was charging her for the other stuff and she put them in the bag.
Q108. If you deleted the cigarettes why didn’t you take them and put them back?
A.Because I was probably stressed during the shift and I should have put them back but I didn’t intentionally let her take the cigarettes.
Q109.Did you understand at the time of removing the cigarettes from the transaction that you were seriously breaching Company Policy and Procedure?
A.It wasn’t intentional.”
Ms Bourchdan conceded on several occasions in response to subsequent questions that she had breached company policy but that it was always “unintentional.”
At the conclusion of the interview she acknowledged that she had no complaints as to how the interview had been conducted, and signed it.
Records of interview between Mr Woods and Ms Antoinette Frangieh and Ms Jymela Frangieh again taken on 15 May 2008 were also included. In relation to the incident on 7 May 2008, Ms Antoinette Frangieh said:
“Q100.Please explain to me why you removed the two packets of cigarettes from the premises without tendering payment for them?
A.I don’t think that I realised that I hadn’t paid for them.
Q101.You take a heater valued at $14.99 and a packet of noodles valued at $0.99 to register 5 and then you pick up two packets of Benson & Hedges cigarettes from the counter and only tender $20.00 and are charged $15.18 for the entire transaction. Please explain to me how you didn’t realise you hadn’t paid for the cigarettes?
A.Because I had already given her the money.”
In a handwritten and unsigned document included in her Application, Ms Bourchdan responded to the record of interview with Mr Woods saying (in respect of the incident on 4 April 2008):
“I never said that I took any stock from the service desk and that is impossible because I cannot leave my register…
They claimed that I have taken cigarettes on these 3 occasions. If I removed the cigarettes and placed [them] aside, it does not mean that I have taken them.
The footage shows that I move the packet of cigarettes aside and leave it there, nothing else. It does not show that I paid for it and does not show that I walked away with it. I asked for Steve [Woods] to show me, he said I cant we don’t have footage of what you did with the cigarettes, and that it would take too much time…
I never admitted taking them. Like I said it was only what I saw on the DVR footage, where Steve kept saying “What do you see on the camera?’
He put words into my mouth and did not write down anything.”
She responded in similar terms to the investigation of incidents on 14 and 17 April and 7 May 2008. Both the Frangieh sisters also commented on the record of interview. These ‘notes’ are undated and unsigned, and appear to be in the same handwriting as Ms Bourchdan’s ‘notes’.
In a detailed statement made by Mr Woods and apparently tendered in proceedings before the Industrial Relations Commission he responded to “The Applicants’ statements.” It is not clear to which statements he is referring, but he maintained that the records of interview were an accurate reflection of the interviews with the three women.
Ms Bourchdan relied upon a series of reports from Dr Samir Benjamin, Consultant Psychiatrist. Given the findings made, and the limited issues on appeal, I do not propose to comment on the medical material in any detail. I note however in his report dated 3 November 2008, Dr Benjamin said:
“Her manager did not wish to listen to her side of the story, nor did he show her the alleged video footage. She was informed that she was dismissed from work without warning or a fair hearing. This made her anxious and distressed. She further felt victimised and treated with contempt.”
In a statement taken on 6 June 2008 by investigators for Coles, again unsigned and undated, Ms Bourchdan said that she commenced with Coles at its Merrylands store in about August 2002 and was employed as a service operator and supervisor. Her shifts were generally from around 5 or 6pm to 12.30am. She continued:
“The store manager, David Worsman, rang me on 13 May 2008…He told me that I was suspended until further notice on full pay. He said that he didn’t know anything about it and that I had to go to a meeting at Chullora…
My daughter went with me for the interview…I was scared and nervous.
Steve said he was investigating stock going off the shelf…When I asked what it was he said: ‘A packet of cigarettes.’ I told him that I did take cigarettes off the shelf and placed them on the service desk to pay for them later. He said: ‘Why?’ I explained that I always had my own packet when I arrived at work. I throw them over the counter and other workers put check-seals on them, or I show them that they are my own. If I don’t have enough cigarettes I grab a pack, and then leave it on the service desk as I would do with bread and milk of an evening.
Steve asked why I didn’t purchase straight away. I explained that sometimes as (sic) we don’t carry money downstairs. All the staff do this, but everyone pays. I never left the service desk without paying for the cigarettes. I explained that to him and couldn’t see what I had done wrong. I didn’t deny taking the cigarettes…Either I have paid, or the other girls have paid. I’ve paid for Kylie Foster’s groceries a few times and she’s paid for my cigarettes. I trusted the others. I told Steve to keep going through the footage, but he said he didn’t have the footage. Steve said this happened on three or four occasions. It wasn’t every day.
There was another incident where Antoinette came up to the service desk with a bag of chips. I didn’t see a docket. I would have asked her for a docket…I cant remember what she said. But I did ask…I took Antoinette’s word… Steve did claim that I took cigarettes for Antoinette and her sister…She didn’t have enough money, so I deleted the cigarettes…Antoinette said something about her sister paying for them later. I deleted the cigarettes and took the money for the other stuff. Then Steve asked me did I see Antoinette put the cigarettes in her bag. I didn’t. The CCTV showed I was taking her money and so Steve wrote down that I had seen her taking the cigarettes.
Steve also showed me the code of conduct book and I told him that I had never seen it. I don’t need a code of conduct to know that you cannot steal from your employer
Why would I take a few lousy cigarettes and lose my job?
Then they dismissed me and said it wasn’t for theft. What did I do wrong? Where were my warnings?
I met the regional manager at Guildford….Cathy [Scarce] was a nice lady. She seemed sincere…I told her that I did not steal anything. At the end she said that she was sorry, but I was to be dismissed, but not because of theft…
Also, I was told by Cathy Scarce that nobody would know why I had been dismissed and yet by the next day it seemed that work colleagues and even customers knew I had been dismissed for stealing…
Steve Woods and Cathy Scarce were professional in the way they conducted themselves. They did not threaten or bully me…”
A short statement from Kylie Foster, a fellow employee, was also attached. She said that on one occasion in April 2008 Jymela Frangieh asked her for cigarettes saying that ‘Sue’ would pay for them later which she did.
Other material included transaction reports from Coles to which Mr Woods referred, the Report of Injury, medical certificates, and the section 74 Notice. A “Factual Investigation Report” prepared by Brosnans Investigation Services (Brosnans) dated 16 June 2008 was also included, but I will refer to that document when considering Coles’ evidence.
At the hearing before the Arbitrator, he noted that a number of statements had not been signed, and Ms Bourchdan’s solicitor undertook to have them signed before the hearing concluded [T30].
Coles’ Evidence
Dr Brian Potter, Consultant Psychiatrist, examined Ms Bourchdan at the request of Coles on 23 June 2008. In a report dated 24 June 2008, he had difficulty following the detail of her claim, and concluded that:
“Although distressed and embarrassed about her circumstances…Ms Bourchdan’s history and presentation does not attract any specific psychiatric diagnosis.”
Also included in the Reply was a document titled “Honesty in the Workplace- Staff Theft and ‘Operation Concern’ Teamtalk.” It was signed by Ms Bourchdan on 24 March 2003 and stated:
“I have been made fully aware of my obligations in regards to compliance with policy and procedure. I am also aware that my role and position with Coles Supermarkets is to also ensure that I am compliant with policy and procedure at all times.”
A document titled “Employee Behaviour Standards” was also included. It was signed by Ms Bourchdan on 8 August 2002 wherein she acknowledged that she had received, read and understood its contents. That document set out certain requirements for conduct by employees, and included a statement to the effect that employees who attempt to defraud Coles, or assist others to do so would result in disciplinary action which could include termination. It also said that: “In some instances, unacceptable behaviour or performance may constitute serious and wilful misconduct. In such instances, employees may face summary dismissal.” Examples of such conduct included: “Deliberately misleading or defrauding the company, fellow employees, customers or contractors.”
The report prepared by Brosnans contained a number of statements from various employees of Coles to which I will refer shortly. In the body of the report, the following comment was made:
“4.5 According to the Claimant one aspect of the CCTV footage which troubled her was that Woods had apparently not bothered to look for instances where goods such as a packet of cigarettes were taken and paid for later. The Claimant contends that all goods were paid for later by either herself and/or other parties. It should be pointed out that it would be virtually impossible for any investigator to locate CCTV footage of another party paying for goods at a later time for these reasons:
·In all instances where the Claimant (and the others) claimed another party paid latter, this other party was not identified, nor was the time of payment detailed with any precision.
·As a consequence, to find this one payment, the investigator would have to view the transactions of the entire staff over a single shift involving the perusal of some 20 different cameras.
·Further, even if the investigator viewed the entire range of CCTV footage, he would not necessarily be able to identify which transaction related to goods taken by the Claimant.
It is for these reasons that the company has a policy that any goods purchased by staff have to be paid for immediately and a check-seal attached to the goods.”
The report concluded:
“In terms of personal presentation, the Claimant appears to be a genuine, hard working individual who was by her own account and that of her supervisors a loyal employee. She strongly denies ever stealing any of the company’s stock and it has to be said that she gave a credible defence of her actions. However, it is apparent that the Claimant did not follow the correct procedures when the Frangieh sisters purchased the company’s stock for their own use. It is possible that the Claimant accepted the verbal undertaking of the sisters on various occasions that they would pay for stock later, or that someone else had already paid on their behalf. During our interview with her, the Claimant conceded she may have been ‘too trusting’ of others, and this has lead to her losing her employment.”
In a statement taken on 6 June 2008 and signed on 2 February 2009, Cathleen Scarce, a Regional Manager for Coles, said:
“Steve Woods…interviewed Teresa Bourchdan on Thursday 15 May 2008 in relation to allegations regarding the removal of stock from the Merrylands store without payment on several occasions.
I then interviewed Teresa on Monday 19 May 2008. That was the first time that I had ever met her.
Teresa’s explanation to me was that she did not know why she had done it, that if she had done it her actions were not intentional. I did not find her account plausible. As with Antoinette’s case, if you are purchasing several items, one of which is a packet of cigarettes which cost over $10, why would you accept for payment a $10 note? It does not add up.
She was…upset that she may lose her job and was begging for another opportunity.
In conjunction with HR, I then made the decision to terminate Teresa’s employment due to a breach of company code of conduct…She was not dismissed for theft, but a breach of the company code of conduct.
The cases involving Teresa Bourchdan, Antoinette Frangieh and Jymela Frangieh were intertwined. Teresa gave Antoinette the cigarettes, Teresa was the one who deleted the transaction, Antoinette was the one who accepted them and removed them. Jymela was the duty manager in charge of the store and was involved in sales where a customer received an extra carton of cigarettes without payment.
In these case, there were more allegations raised than what this employee was actually terminated for. What the company did was select those allegations which incurred the greatest financial loss. There were more instances of improper conduct which they could have been terminated for, but we focussed on the major issues. From our perspective, with all the evidence we had, we felt that the actions and behaviour of Teresa, Antoinette and Jymela did not add up.
These ladies were not singled out for investigation. It was only when these things came up as a result of another investigation that they then became the subject of an investigation.”
In his statement signed on 23 June 2008, Steve Woods confirmed that he interviewed Ms Bourchdan on 15 May 2008. He stated that the lead up to the investigation was the actions of a customer who was buying bulk cigarettes leading to “a covert operation.” He then said that: “As a result of that investigation it was identified that there may have been some other issues at the Merrylands store.” He continued:
“Whilst the interview was in progress I sat in front of a laptop computer and recorded the questions and answers in a record of interview…
At the interview Teresa was very quiet and very nervous. However, the meeting was cordial and we spoke to each other politely. It was in my opinion a comfortable meeting environment. During the interview, I did not bully, harass, intimidate, threaten or abuse Teresa.
After the end of the interview she was asked to read through and sign the record of our interview if she agreed with its contents. She did this. I then contacted HR services.The Regional Manager, and the Store Manager make a decision about the best course of action to take. I have no part in that decision making process.”
David Worsman, the Store Manager at Merrylands, also gave a statement on 6 June 2008 which was signed on 26 March 2009. He said:
“In about mid April 2008 the SSM [Store Support Manager], Toni Daniels, drew my attention to the fact that she had caught something on camera and wanted me to have a look at it.. After I viewed it I asked Toni to make contact with Loss Prevention.
My recollection was that the CCTV footage showed Teresa Bourchdan taking cigarettes at the service desk and not paying for them. As we looked through the footage there was no evidence that the cigarettes were paid for that night. We started looking back at other days and looking at the cigarette area and picked up that the same thing had happened before. From what I saw on the CCTV footage there was no explanation for this other than that company stock was being taken improperly. It did not happen once, but a number of times.
On the Monday Toni Daniels came to me and said she had seen something on the cameras. She said I should check the cameras at a particular time because she had seen cigarettes being taken which had not been paid for. We did check and this allegation was confirmed.
I did not discuss what we found with any of the women concerned….Fiona Jensen from Asset Protection conducted an investigation and Steve Woods took over from her.
I was instructed to stand Teresa down and ask her to go to Chullora to see Steve Woods. When I spoke to her I followed the format of a letter for this purpose from HR. I said she was suspended on full pay while an investigation took place….I explained that I would inform other staff at the store that she was on annual leave. Teresa did ask what it was all about and I had to explain that Steve Woods from Asset Protection had asked to see her.
In my phone call to her I was professional and business-like. I did not say why she was required at Asset Protection or make any allegations. At no stage in my dealings with her did I bully, threaten, harass or intimidate her.”
In a statement taken on 6 June 2008 and signed on 18 December 2008, Toni Daniels said that she had been with Coles for 25 years, and 3 years at Merrylands. Part of her duties as “a compliance officer” was to check alarms and the CCTV footage. She continued:
“Teresa always worked on register 5, which is the register attached to the kiosk. The grocery boy, Chris Gunn, who was the duty manager at night when Jymela was away brought something to our attention. He observed that she would fill the cigarettes, a packet of cigarettes would be taken, it would then be placed at the front of the service desk and be placed under a jumper at the service desk, or sit behind the chute. She would then go on a break with Jymela and Antoinette. The cigarettes would come out, they would go out through register 1, the checkout at the end and go out through there.
After this was reported and we saw it once, David Worsman…said to monitor it, and we noticed that it happened several times a week.
When I watched this footage, Teresa would take a packet of cigarettes out of the dispenser and place the packet under a jumper. They were not scanned or check-sealed. This was then reported to Asset Protection…Having watched the CCTV footage involving Teresa I don’t believe there is an innocent explanation for her actions with the cigarettes.”
In a subsequent statement dated 18 December 2008 Ms Daniels said:
“When you are employed with Coles you are provided with a Code of Conduct.
I cannot state definitely that Teresa Bourchdan was given one when she started at Coles Merrylands because I wasn’t there, but probably in her file there would be a document confirming this. There used to be a sheet saying Code of Conduct signed on such and such dateThe procedure was that when people commenced their employment, part of their induction was that this paper work had to be completed. When Teresa started with the company she would have been told about the Code of Conduct in training.
Staff are not allowed to put things aside and pay for them later. That sort of action is classed as theft.The correct procedure for purchasing items at the time Teresa was working was this:
1. If you are buying something for yourself personally, you are only allowed to buy it in your breaks or before and after work. Those are the only times when you are allowed to buy anything. You are not allowed to buy anything in the middle of your shift.
2. If you are on a break, and you want to purchase something you go to the front end, get whatever it is you want, pay for it, obtain from the person on the cash register a check-seal and place that on what you have purchased.
3. Once the check-seal is on it you put it in your locker. We all have personal lockers.
As far as I know staff were aware of the correct procedures for these purchases… As far as I know Teresa was aware of the procedure. She had been in the company long enough to know.”
Ms Daniels confirmed that the procedure had recently been changed. Her account of the correct procedure was endorsed by a fellow employee and supervisor at the Merrylands store, Anna Nicolic, who said in her statement dated 16 January 2009:
“When staff want to purchase any item from the store, they are supposed to pay for it immediately and a receipt is provided plus check-seal for the purchase…
It has always been required to pay for purchases immediately – there has never been any flexibility on the part of management in allowing staff to pay for their own purchases later, or at the end of their shift.”
Matthew Jones, a service assistant at the Merrylands store confirmed this in his statement of 19 January 2009. He added:
“The supervisors told us that this was how purchases had to be managed, and over the years I have worked here, supervisors reminded all staff of the procedure. Terrie [Bourchdan] would have been fully aware of the procedure involved in purchasing items. It was not allowed for staff to put aside items they wished to purchase and pay for them later.”
Also included in the Reply were notes from the treating general practitioner, Dr Hanna, which confirmed that Ms Bourchdan consulted him on 26 May 2008 complaining of depression after losing her job. This was not mentioned at consultations on 21 and 22 May 2008.
At the hearing, a three page extract from an employee information brochure was admitted into evidence. It essentially confirmed the material set out in the “Employee Behaviour Standards” document referred to at [36] above. Breaches of the Code would result in disciplinary action “which ranges from a warning to termination without notice.” Under the heading “Company Resources,” the following appeared:
“Coles Group will not accept deliberate or reckless damage to, or the theft or misuse of its resources…Resources include: stock, money, equipment…
I will:
·Use company resources for the purpose intended…
·Pay for company stock or assets before consuming them or leaving the workplace with them…”
THE ARBITRATOR’S FINDINGS AND REASONS
In his lengthy and detailed Reasons, the Arbitrator commenced by setting out the issues in dispute between the parties, then summarising the medical evidence. At [27] he set out in considerable detail the “relevant authorities concerning claims for psychological injury…” and quoted at length from the decision of Deputy President Roche in Department ofCorrective Services v Bowditch [2007] NSWWCCPD 244.
At [28] he concluded that Ms Bourchdan had suffered “…a recognisable psychological illness condition” which arose out of or in the course of her employment with Coles.
At [34] he turned to consider section 11A of the 1987 Act, and whether that injury was wholly or predominantly caused by reasonable action taken by Coles with respect to dismissal. He said:
“34. I am satisfied the Applicant’s injury was wholly or predominately caused by action taken by or on behalf of the Respondent with respect to the Applicant’s dismissal. The issue that now needs to be determined is whether the action taken or proposed to be taken by or on behalf of the Respondent with respect to the Applicant’s dismissal was reasonable. The onus of establishing that the relevant actions or proposed actions are reasonable lie with the Respondent.
35. I note that it is common ground there was no allegation made against the Applicant that she stole any items or deliberately assisted other employees to steal items, or that she acted dishonestly or with the intention to commit fraud.
36. The section 74 Notice states the reason for denying liability as “your employer has terminated your employment due to code of conduct, breaching company procedures” in the reasons section of the notice it states “your treating doctor advised that you advised him that you were dismissed unfairly from work, it is our opinion that you were terminated from your employment due to code of conduct. You have not denied the incident did not occur. Your employer has not acted unreasonable (sic) in their actions”.
37. The decision to dismiss the Applicant was upon the basis that she had not adhered to the Respondent’s Code of Conduct. The statement of the Respondent’s regional manager, Cathleen Scarce states “she was just very upset that she may lose her job and was begging for another opportunity….In conjunction with HR I then made the decision to terminate Teresa’s employment due to a breach of company code of conduct under the resources section. She was not dismissed for theft but for breach of the company code of conduct”.
38. The Respondent referred to the fact the Applicant, had on 8 August 2002 signed an acceptance that she had received read and understood the “Coles Employee Behaviour Standards” document, and that document set out the code of conduct that was to be adhered to by employees such as the Applicant. The acceptance form appeared as page 10, the last page of the document, and was signed by the Applicant, as forming part of her conditions of employment.”
The Arbitrator then set out various passages from the Code and other similar documents (including the employee information brochure) before concluding as follows:
“43. Actions of the Applicant giving rise to the Respondent’s allegations that the Applicant had breached the Respondent’s Code of Conduct include the alleged failure of the Applicant to pay for items at the time the items were put to one side. Upon careful review of the company records admitted into these proceedings I am satisfied that it was not apparent how the Respondent’s written Code of Conduct or any written policy and procedures specifically applied in relation to selection and later payment by staff of stock items before consuming them or leaving the workplace with them. The Respondent submitted the written code of conduct implied that it operated to the effect that items had to be purchased at the time of selection. I am not satisfied it is expressed to operate in that manner and if it was so intended I am satisfied that it is reasonable to expect that the code of conduct would have been expressed to simply have stated that to be the case rather than leave it to its employees to interpret it as such.”
The Arbitrator then considered the statements of Toni Daniels (incorrectly referred to as Tony Daniels) and Mr Jones commenting as follows:
“45. The statement of Mr (sic) Daniels does not indicate where, if at all, the old procedure or the new procedure is documented…”
…
47. Mr Jones’s statement later states ‘It was not allowed for staff to put aside items they wished to purchase and pay for them later’ – he does not state if this procedure was advised to him verbally by supervisors or whether it was written. He also states that the purchase procedure has since been changed such that the staff have to simply retain the receipt as proof of purchase.”
He continued at [48] as follows:
“48. The Respondent referred to the record of interview between Mr Woods and the Applicant undertaken on 15 May 2008 in support of its decision to dismiss the Applicant.
49. Apart from the company’s documentation set out above there was no other such documentation relied on by the Respondent setting out in writing what the Respondent’s code of conduct or policy and procedures were in relation to purchase of items by staff members.
50. The Applicant freely acknowledged that the CCTV footage indicated that on a number of occasions she put aside items without paying for them at the time she put them to one side. The Applicant indicated that if she was busy she would usually put water or cigarettes to one side and pay for them later. The Applicant denies that such items were not later paid for… The Respondent did not submit that the items were not later paid for. The Respondent did not rely on video footage to deny the later payment of the items but merely to indicate on multiple occasions items were not paid for at the time of selection by the Applicant (which was admitted by the Applicant).
51. I am satisfied the Applicant was not aware of any other unwritten policy and procedure being in force (or if indeed such unwritten policy and procedure existed – being enforced) in relation to the timing of purchase of selected stock items by staff. On review of the Applicant’s statement, the questions and answers set out in her record of interview, and the Respondent’s written code of conduct and procedure documentation, I am satisfied the specific time for payment whilst still at the workplace is not something that appears to me to be referenced in the Respondent’s corporate documentation expressly or impliedly. I am satisfied the Applicant was of the belief payment could be tendered later and I am satisfied that she was also of the belief that payment for any items was subsequently effected before she left the workplace…
52. The Applicant consistently stated in relation to instances that she had taken items without paying for them, that although she may not have paid for the items at the time the items were set to one side, the items were subsequently paid for before she left the Respondent’s work place….
53. The Applicant… also stated that it was common practice of hers and others to put items to one side and that she left her money in the staff room and would make payment after a break and in any case before leaving the workplace with the items.
54. The Respondent also referred to incidents where it appeared the Applicant had improperly, inadvertently or deliberately failed to properly correct or retrieve deleted items purchased by colleagues. Upon consideration of the answers provided in the interview with Mr Woods, and in the Applicant’s own statements, I am satisfied that the Applicant consistently stated and was of the belief that to the extent that she may not have complied with the Respondent’s written or unwritten procedures relating to deletions, or ringing up, of items - her failure to do so was unintentional, and it was not deliberate action on her part to contravene any policy or procedure that she was aware of…
55. I am satisfied the written code of conduct and policies and procedures do not prohibit employees from putting stock to one side and paying for them later. I am satisfied the Applicant was not aware that she was not permitted to put items to one side and pay for them later [refer ans 47]. I am satisfied nothing in the written procedure documents relied upon by the Respondent and set out above confirms that the practice of setting aside and later paying for goods was prohibited. I am also satisfied the Applicant was of the understanding that she had not knowingly or intentionally breached the written or unwritten procedures relating to purchase of stock items by herself or others, or in relation to ringing up sales…
59. The Applicant was dismissed for failure to comply with the code of conduct. The Regional Manager, in her statement of 2 February 2009 states “in conjunction with HR I then made the decision to terminate Teresa’s employment due to a breach of company code of conduct under the resources section. She was not dismissed for theft, but for a breach of the company code of conduct.” Upon my assessment of the evidence as set out above I am not satisfied that the Respondent in this matter has discharged its onus that it acted reasonably in respect to the dismissal of this employee. On the basis of the written record of the Respondent’s code of conduct and policy and procedures, in so far as method of staff purchasing is concerned, I am not satisfied that there was any such breach by the Applicant. The Applicant stated that to the extent that there were any breaches those breaches were unintentional. I note the Applicant consistently stated that payment was effected before she left the workplace. I am not satisfied the Respondent has demonstrated that payment was not effected later. Also to the extent that there was such a breach of the code of conduct (and I am not satisfied that there was), I am not satisfied that the action of instantly dismissing the employee for such breaches was reasonable (see also Hartley v Dux Manufacturing Pty Ltd & Anor [2008] NSWWCCPD 55 (30 May 2008) and Smyth v Charles Sturt University [2007] NSWCCPD 184 (23 August 2007) at [48])…
61. In the particular circumstances of this matter I am satisfied the actions of the Respondent in connection with the dismissal of the Applicant was the predominate action that gave rise to the Applicant’s injury condition. I am not satisfied, in the particular circumstances of this matter, that the Respondent’s action in dismissing the Applicant on 19 May 2008 on the basis of contraventions of the Respondent’s Code of Conduct was reasonable. Accordingly I find, that the Applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to dismissal.
62. I note further that the Respondent’s written code of conduct indicates that one action open to the Respondent in the event of code of conduct violations was termination of employment. This implies other less serious options might also be available in the event of a suspected code of conduct violation. Other actions available to the Respondent, particularly a Respondent with the resources and workforce the size of the Respondent (who is a major employer nationally) would include counselling, warning, retraining etc. I am satisfied that it is likely for colleagues of the Applicant, and the Applicant, to presume that as her employment was terminated without any of the other less drastic actions being first employed that the Respondent was sending a message and was of the opinion that the Applicant had been involved in acts of a very serious nature such as theft fraud or dishonesty.
63. Allegations and suggestions of theft, fraud or dishonesty are serious matters with serious business and personal ramifications. The obligations upon employees and employers to act in their relationship with each other with integrity and honesty is a matter of utmost importance. Bearing in mind the nature and size of the business conducted by this Respondent and the nature and size of its workforce, I consider it reasonable to expect this employer to have in place clear documented procedures on matters as fundamental as the purchase by it staff of every day products. I am satisfied, on the evidence before me, that there appears to have been a patent failure on the part of the Respondent to expressly set out in its Code of Conduct or its policy and procedures in written form regarding what it expects of its employees in relation to purchase by them of stock. I note also there was no evidence before me of any ongoing training or information concerning how staff is informed of changes in such procedures over time. It may be that such information and processes are in place however, if so, evidence of same is not before me. To the extent that there was any unwritten policy or procedure in relation to the purchase procedure I am satisfied the Applicant’s actions and answers indicate that she was either unaware of it, or if aware, unaware that it was to be strictly adhered to.
64. I am further satisfied the Respondent’s actions in providing insufficient documentation to the Applicant concerning its procedures relating to purchases was in the circumstances of this matter also unreasonable. I am further satisfied the Respondent’s actions in dismissing the Applicant without first providing her with a warning was unreasonable in the light of her long period of unblemished and “hard working” service and also in view of the seriousness (or lack there of) of the alleged transgression – it being predominately one of timing of payment (rather than non payment) of low cost stock items. I am not satisfied the Applicant’s other alleged transgressions in relation to incorrect deletions of rung up items were intentional.
65. It was not in dispute that the Applicant was dismissed for alleged breaches of the Respondent’s Code of Conduct, she was not officially dismissed for stealing, nor was she specifically accused of stealing during the interview process however I note the Applicant’s statement dated 6 June 2008 wherein she states that “I was told by Cathy Scarce that nobody would know why I had been dismissed yet the next day it seemed that work colleagues and even customers knew I had been dismissed for stealing”. The Respondent did not provide any evidence that it had advised the Applicant’s work colleagues the reasons for the Applicant’s dismissal, the Respondent did not provide any evidence that it had advised the Applicant’s work colleagues that she had not been dismissed for stealing. I am satisfied the Applicant was, despite the Respondent’s indication to her that she was dismissed for Code of Conduct violations, reasonably able to form the view that she had not been believed by her employer, that the Respondent had formed the view that her honesty, integrity and loyalty to it was lacking to such a significant extent that, despite 6 years of service she was dismissed without warning. In such circumstances, I think it reasonable for the Applicant to conclude that the unstated reason for her dismissal was that she had been dismissed for acting in a grossly dishonest manner. In such circumstances I think it reasonable for the Applicant to form the view that her work colleagues were also likely to have the impression, given her sudden unexplained termination that she had been dismissed for a matter such as stealing, or some other very serious transgression that would warrant a dismissal with out prior warning.”
THE SUBMISSIONS
Coles accepts that it bears the onus of establishing a defence under section 11A but points out that regard must also be had to the rights and interests of both parties (Aristocrat Technologies Australia Pty Ltd v Raskov [2005] NSWWCCPD 66) (‘Aristocrat’).
Coles submits that the decision to terminate Ms Bourchdan was made on the grounds that she had breached the Code by her actions firstly, in not paying for stock at the time it was taken, and secondly, where she had improperly processed or deleted purchases for other members of staff.
Dealing with the first category, Coles submits that the Arbitrator:
· Gave insufficient weight to the fact that the worker conceded she breached the Code “…as a result of which the employer had suffered a financial loss.”
· Gave insufficient weight to the statements of Ms Daniels, Ms Nicolic and Mr Jones “…who all clearly state that staff must pay for stock at the time it is taken.”
· Gave “insufficient consideration to the practical difficulties from the employer’s perspective in determining whether payment was ever tendered for the stock in question” in circumstances where the worker gave no specific evidence as to precisely “when, to whom or how payment was tendered on any of the instances considered.”
· Treated “the absence of a step by step written procedure in relation to the personal consumption of stock as determinative, in circumstances where the evidence before the Commission from staff members suggested that the appropriate procedure in this respect was clear and well understood by staff…”
In relation to the second category, Coles submits that the Arbitrator:
· Dismissed the actions/behaviour of the worker on the basis that it was unintentional.
· Since the worker “…was aware of the appropriate policies and procedures in relation to the processing of stock by other staff members…[and] was observed on CCTV footage actively breaching those policies…and conceded that she did so…it was not open to the Arbitrator to find that her actions were unintentional…”
· Erred in accepting firstly, that the worker’s actions were unintentional and secondly, “that what he considered to be the lack of intent on the part of the worker rendered the employer’s actions…unreasonable.”
· Dismissed the seriousness of the worker’s actions in suggesting alternative courses of action open to the employer.
· Was in error in considering alternative courses of action such as written warnings when his task was to consider whether the action taken was “reasonable action” taking into consideration all relevant factors. (Hartley v Dux Manufacturing Pty Ltd & Anor [2008] NSWWCCPD 55) (‘Hartley’).
· Since there was no suggestion by him that the manner in which the suspension and dismissal took place was unreasonable, the defence under section 11A should have been accepted.
Coles is also critical of the comments made by the Arbitrator at [65] of his Reasons in relation to Ms Bourchdan’s claim that everyone knew she had been dismissed for stealing given that she failed to identify those persons or bring evidence in support of this allegation and given that Coles expressly stated that she was dismissed for breaches of the Code.
Ms Bourchdan in her submissions has responded to each of the matters raised by Coles, but says that the decision of the Arbitrator was correct given the totality of the evidence.
DISCUSSION AND FINDINGS
This is a very difficult case to determine. Ms Bourchdan gave what was described in the Brosnans report as a “credible explanation” for her actions. I accept that, although I do have some concerns regarding the events on 7 May 2008 because of the conflicting explanations provided by Ms Antoinette Frangieh and Ms Bourchdan. I also accept that Coles had legitimate concerns over certain conduct occurring at the Merrylands store, and that it’s Code properly provided for summary dismissal in certain circumstances.
My task however is to consider whether the action taken by Coles in dismissing Ms Bourchdan was “reasonable” within the meaning of section 11A of the 1987 Act and in the circumstances of this particular case.
.
There are a number of principles to consider in determining this issue.
The test of reasonableness is objective. As Basten JA said in Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 (‘Jeffery’):
“In my view, if, in the view of the Commission, the action taken by the employer in transferring an employee is not reasonable in all the circumstances, the employer cannot rely upon s11A because it held a genuine belief, based on reasonable grounds, that its action was reasonable.”
In Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465, Davies AJA said at [27]:
“The criterion of s 11A(1)(b) is "reasonable action taken ... by or on behalf of the employer". The words "with respect to" are of wide application. Transfer, demotion, promotion, etc may be the subject of the action or proposed action taken by or on behalf of the employer or matters with respect to which that action or proposed action is connected or may themselves constitute the action or a part of the action. However, the provision does not speak of an injury caused by the transfer, demotion, promotion, etc of a worker but of an injury caused by action taken or proposed to be taken by or on behalf of the employer with respect to such a matter. The words "performance approval, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers" all clearly refer to matters other than the performance by a worker of his duties. The paragraph is thus looking to the worker's response to the employer's action or proposed action, not to the worker's response to employment conditions encountered after a transfer, demotion, promotion, etc. Senior counsel for Mr Doyle put the matter well when he submitted that the section was looking to the process of transfer, demotion, promotion etc rather than those acts per se.” (emphasis added).
Pirie v Franklins Ltd (2001) NSWCCR 346 (Pirie) is a useful case in point. It was considered by Deputy President Roche in Temelkov v Kemblawarra Portuguese Sports andSocial Club Ltd [2008] NSWWCCPD 96 where he said:
“117.Neilson CCJ considered the question of reasonableness in Pirie… and held that the employer carries the onus of establishing that the terms of section 11A have been met. In that case a senior employee developed a psychiatric injury after he was suddenly retrenched without prior notice or warning. His Honour held (at [50]) that he was not concerned with whether the retrenchment per se was justified, but he was entitled to have regard to “the antecedent relationship of the parties to gauge the reasonableness of the process actually adopted”. In determining that the retrenchment process was unreasonable, his Honour considered the following factors to be relevant:
(a) Franklins did not consult with the worker prior to the retrenchment;
(b) having regard to the worker’s seniority, the period of notice given (four weeks) was inadequate;
(c) the absence of counselling services, and
(d) the absence of assistance in finding alternative employment.”
In Pirie, his Honour considered a number of authorities on this issue stating as follows:
“46. This area of the law is not without some judicial exegesis. The first case to which I have been referred is that decision of his Honour Judge Burke in Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454. At 458 his Honour said this:
In a real sense no action can be divorced from the way in which it is performed. The manner of its doing is part of the action. The action is not merely its end result. The action is what takes place to achieve that result. An action is fairly synonymous with a deed. A `good deed' need not be an instantaneous action. I can help a blind man across a street. It doesn't take long but encompasses a short social interchange as well as the actual guidance. I can have my Alzheimer-affected acquaintance home to a meal. The action or deed takes rather longer but it too includes the whole of the transaction. Similarly, I would think that the action of transferring, demoting, promoting or discharging an employee would encompass the whole of the transaction between the employer and the employee. But it is the action of transferring or whatever, not the whole history of the relationship between the parties nor the subsequent developments that is relevant. What went before or after may be a guide to the reasonableness of the particular action but is not part of it.
47. It is in particular the last sentence of what fell from his Honour that is of relevance in my assessment of the facts of this case. Whilst the antecedent relationship between the applicant and the respondent was not part of the process of his retrenchment, whether that retrenchment was reasonable or not must be seen in the light of their pre-existing relationship.”
His Honour then considered the decision of Judge Armitage in Ritchie v The Department ofCommunity Services [1998] NSWCC 40; (1998) 16 NSWCCR 727 and that of his Honour Judge Geraghty in Irwin v The Director General of School Education (unreported, 18 June 1998, matter number 14068 of 1997)(Irwin). He quoted from Judge Armitage as follows:
“In relation to `reasonableness', his Honour said at 10 (and I respectfully agree with him):
The question of reasonableness is a test that has not yet been addressed in this Court since it is only a recently amended provision of the legislation. It has been considered in the Commonwealth legislation of [sic] Employer's Rehabilitation and Compensation Act 1998 and particularly s 4(1). There have been a number of cases which have considered very similar or if not exactly the same provisions in the Commonwealth.The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of `reasonableness' is objective and must weight the rights of employees against the objective of the employment. Whether an action is reasonable should be attended, in all the circumstances by questions of fairness.”
In Aristocrat ADP Sassella considered the decision in Pirie, and concluded at [82]:
“The question of reasonableness or fairness involves a consideration of all relevant factors. The test is objective, weighing the rights of employees against the objective of employment. The provision looks at the process of retrenchment rather than the act of retrenchment per se.”
Similar issues were considered by his Honour Judge Keating in Hartley where, quoting from the decision of Deputy President Byron in Smyth v Charles Sturt University [2007] NSWWCCPD184 he said at [66]:
“The question as to whether an employer’s actions are reasonable under the section is one of fact involving an objective test: it is not a matter of law (Commissioner of Police v Minahan [2003] NSWCA 239 …
Whether the Employer’s actions were reasonable or not, depends upon the intrinsic reasonableness of its actions, taking into account relevant matters pertaining to the employee and known to the employer (Minahan)…
Consideration should be given to the circumstances surrounding the “action”, to the extent that what occurred before and after the “action” may be taken as a guide to its reasonableness or otherwise, but is not necessarily determinative of it (Buxton v Bi-Lo Pty Ltd [1998] NSWCC 13; (1998) 16 NSWCCR 234 at 249; Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454, at 458, and Pirie)...”
His remarks at [67] are also relevant to the circumstances of this case:
“It is not for the Commission to consider on appeal whether the actions taken by the Employer might have taken a different course or included other options. In this case it might be argued that the Employer should have been on notice that the Worker had a propensity to be easily offended or upset and to react inappropriately. It could be argued that the Employer should have taken other preventative measures to obviate a circumstance where the Worker became so agitated that he engaged in verbal and physical abuse. That, however, is not a question on appeal. The question is whether the action taken by the Employer was “reasonable action” taking into consideration all relevant factors.”
In summary, I am not concerned with whether Coles’ action in dismissing Ms Bourchdan was justified or not, but only whether that action was reasonable in all the circumstances.
In considering whether the action taken by Coles was reasonable within the meaning of section 11A, I have had regard to the following matters:
· Ms Bourchdan was a moderately long term employee who by all accounts appears to have been a hard working and loyal employee.
· There is no evidence that her conduct had been the subject of any adverse notice previously, nor that she had committed any breaches of Coles’ Code. That is a guide in considering the “reasonableness” of the action (Hartley).
· She was abruptly told that she was suspended without reason.
· She was not informed of the reason for the requirement that she attend a meeting with Mr Woods (see the statement of Mr Worsman) to perhaps enable her obtain advice or assistance
· She was similarly abruptly dismissed following the meeting with Ms Scarce.
· Ms Scarce referred to other allegations of improper conduct that were not identified. Her reference to the company pursuing those allegations that resulted in “the greatest financial loss” is curious in the context of her claim that Ms Bourchdan was not dismissed for theft, but for breach of the Code.
· The Code was silent as to the procedure for the purchase by staff of goods during a shift.
· There was no evidence that Ms Bourchdan had breached the written Code.
· Her account of her actions was credible (see Brosnans report).
· There was conflicting evidence as to the procedure for the purchase of goods by staff. Ms Bourchdan said that her conduct was the usual practice as she understood it. Her account was confirmed by the Frangieh sisters, and the statement of Kylie Foster, although disputed by Ms Daniels, Ms Nicolic and Mr Jones.
· There was no proven theft or fraud. Ms Scarce was at pains to inform Ms Bourchdan that she was being dismissed for a breach of the Code, not for theft.
· Ms Bourchdan at all times denied stealing from Coles, and there was no evidence brought by Coles to show that she did.
Having regard to the whole of the evidence, I am not satisfied that the “action taken or proposed to be taken” by Coles in May 2008 with respect to the dismissal of Ms Bourchdan was “reasonable.”
Many of the submissions made by Coles focus on the appropriateness or “reasonableness” of the decision to dismiss Ms Bourchdan. I accept that Coles had indeed serious concerns about certain conduct occurring at the Merrylands store, but my concern is with the process of the dismissal, not the reason for it.
I also accept Coles’ submission, in line with the decision in Hartley, that it was not for the Arbitrator to consider alternative “options.” His comments regarding the issue of a warning or other measures are no more than that, are subjective, and have no bearing on the objective test of the “reasonableness” of the action taken to dismiss Ms Bourchdan.
Coles’ submissions on appeal as regards the Arbitrator’s remarks at [65] of his Reasons as to other persons apparently being aware of her dismissal are also accepted. There was no evidence that Coles was responsible for this. It would appear that Ms Bourchdan and the Frangieh sisters were all dismissed at about the same time. The source of any comments made to colleagues or customers (if they were in fact made) remains unknown, and it was not open to the Arbitrator to form an “impression” or speculate in this regard. In those circumstances, I reject that aspect of his determination, but for the reasons stated, it has no bearing on my decision as to the “reasonableness” of Coles’ conduct with regard to dismissal.
I accept that Coles held a genuine belief, based on reasonable grounds, that its actions in dismissing Ms Bourchdan were reasonable, but I have concluded that they were not, for the reasons stated, and particularly in light of what appears to have been a sound pre-existing relationship between the parties.
In line with the reasoning of Geraghty CCJ in Irwin, weighing the rights of the employees against the objective of the employment, I have concluded that the balance falls in favour of Ms Bourchdan.
CONCLUSION
Having conducted a detailed review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249, Ms Bourchdan is entitled to succeed in her claim on the grounds that she suffered a psychological injury arising out of and in the course of her employment with Coles and to which her employment has been a substantial contributing factor. Coles has failed in its defence under section 11A on the grounds that it has not established that its actions with respect to the dismissal of Ms Bourchdan were reasonable.
DECISION
The decision of the Arbitrator dated 19 May 2009 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs of the appeal.
Deborah Moore
Acting Deputy President
17 September 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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