Davis & Shop, Distributive & Allied Employees' Association v Brashs
[1997] IRCA 34
•20 Feb 1997
DECISION NO:34/97
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - whether alteration of receipt and sending of altered receipt to customer amounted to MISCONDUCT - whether employer’s belief that the employee stole money a reason for termination of employment - PROCEDURAL FAIRNESS - whether employer required to afford opportunity to respond where theft not given as reason for termination
Workplace Relations Act 1996 ss 170DC, 170DE(1)
Boland v Maningrida Council Inc (1996) 66 IR 382
ROBYN DAVIS & SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES’ ASSOCIATION - v - BRASHS
No. VI 2117 of 1996
Before: Judicial Registrar Millane
Place: Melbourne
Date: 20 February 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2117 of 1996
B E T W E E N :
ROBYN DAVIS &
SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES’ ASSOCIATION
Applicants
A N D
BRASHS
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 20 February 1997
THE COURT ORDERS THAT:
The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2117 of 1996
B E T W E E N :
ROBYN DAVIS &
SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES’ ASSOCIATION
Applicants
A N D
BRASHS
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 20 February 1997
REASONS FOR JUDGMENT
By an application filed on 19 July 1996 the applicant seeks compensation from her former employer alleging that on 12 July 1996 it terminated her employment in contravention of the Workplace Relations Act 1996 (the Act). She specifically alleges that the reason advanced by the respondent at termination; namely, that she had breached company policy by manipulating a receipt, did not justify termination and, therefore, there was no valid reason connected with her conduct at termination. Further, she argues that there was a breach of section 170DC of the Act. This is because at termination the respondent believed that the applicant had stolen $369.00, being the sum paid by a customer for the purchase of a VCR recorder. The cash register records and the respondent’s other transactional records do not record the alleged sale to the customer but do indicate that one VCR recorder of the same make and model held by the customer is not accounted for in the respondent’s sales or stock in the relevant period.
It is contended by the applicant that the failure of the respondent to directly put to her that it was investigating the alleged misappropriation or theft of the sum of $369.00 denied her a proper opportunity of responding to the more serious allegation of misconduct. Lastly the applicant seeks one week’s compensation in lieu of notice, it being agreed that at termination she was summarily dismissed.
THE WITNESSES
The respondent called the following witnesses:
-Pamela Ann Ross (Ross), the alleged purchaser of a Phillips VCR 155 with G-Code from the respondent on 8 May 1996;
-Tony Veljanovski (Veljanovski), the respondent’s store manager at its Greensborough store at the relevant time;
-Richard Nicholas Craze (Craze), the assistant store manager employed by the respondent at its Greensborough store at the relevant time;
-Daryl Fredrick Megna (Megna), the respondent’s national security manager and the person responsible for the investigation of the purchaser’s complaint;
-Michelle Claire Lowe (Lowe), the respondent’s advertising manager who completed the customer complaint form; and
-Helen Gatsios (Gatsios), the respondent’s national human resources manager who was responsible for the decision to terminate on the recommendation of Megna.
The first-named applicant gave evidence and called one other witness, Ross Wilson Indian (Indian), police officer.
At the outset I must say that I found the approach taken by the respondent’s representative at hearing one which unnecessarily complicated the issues before the Court and one which did not accord with the documentary and oral evidence given. The evidence of Gatsios, who agreed that she made the decision to terminate on Megna’s recommendation, was that the reason for termination was breach of company policy and manipulating a receipt. Megna himself advanced that reason both at termination and in Court but also agreed that he did not accept the applicant’s explanations and at termination believed Ross’ account of what occurred; believing also that the applicant had taken the $369.00 the company was unable to account for. This belief led him to place the matter in the hands of the police on 16 July 1996 for further investigation.
What I found unusual at hearing was that Mr Katz, appearing for the respondent, opened by telling the Court that this was a case concerning “stealing” and “misappropriation of money”. In other words, he appeared to be saying that the respondent’s reason for termination was theft. Even after his witnesses gave their evidence, Mr Katz closed the respondent’s case by submitting that the real reason for termination was theft and that the respondent at the relevant time held an honest and reasonable belief that this was so after having conducted a thorough investigation. He did, in his submissions, make the further suggestion that the manipulation of a receipt was also a reason for termination.
In view of the evidence of both the applicant and the respondent’s witnesses as to the reason advanced at termination and the reason the witnesses relied on, despite whatever belief or suspicion they held, it seemed to me unhelpful to attempt to justify a reason not directly advanced at termination. As I have already noted, it was the applicant’s case that the failure to tell her that the respondent was investigating a case of theft deprived her of the opportunity to respond to this allegation. For her to succeed on this point it is necessary for me to find that theft of the $369.00 was a reason for termination, that it was not put to her prior to termination and any of the other reasons for termination did not of themselves provide a basis for justifying termination.
BACKGROUND
At the relevant time the applicant was employed as a sales assistant at the respondent’s Greensborough store during some ten months. Prior to this employment she had previous sales experience. I gained the impression from her that she had a very good understanding of what her duties entailed and the reasons for giving receipts to customers despite any deficiencies in the respondent’s training procedures.
It was common ground that the applicant was the only female sales assistant employed and on duty on 8 May 1996 in the respondent’s consumer electronics department. In the larger recorded music department there were other female sales assistants.
Ross gave evidence that on 8 May 1996 between 12.00pm and 3.00pm she went to the respondent’s store to purchase a Phillips VCR 155 with a G-Code on sale for $369.00. In summary her evidence was that she was assisted by the applicant in the purchase of the VCR and gave the sales assistant the sum of $370.00. She recalled the sales assistant handing her a $1.00 coin in change from her pocket and, although some keys of the cash register were pressed, she did not see the register open, nor could she say what happened to the $370.00 she handed over. Ross claimed that the behaviour of the sales assistant raised her suspicions at that time. However, given her subsequent conduct in going shopping and leaving the VCR with the sales assistant with an arrangement for the receipt to be placed on or with the goods, it is unlikely that Ross held any or any significant suspicions about the transaction at the time. Subsequent events, the passage of time and the opportunity to reconsider what occurred no doubt led to her statement some six weeks later suggesting that during the sale transaction her suspicions were aroused by the sales assistant’s conduct.
Ross is an independent witness because she is not connected to either party and there appears to be no rational basis for suggesting that she had anything to gain from the complaint made. Although there is no direct proof of purchase of the VCR on 8 May 1996, and, further, there is no direct evidence to identify the VCR Ross holds as one which actually came from the respondent’s store, I am satisfied that she did purchase a VCR from the respondent’s store on 8 May 1996 and this purchase and the circumstances surrounding it led to the complaint she made to the respondent’s head office some weeks later.
As I have already noted after she paid for the VCR Ross arranged with the sales assistant to leave the goods and go shopping. She returned later to collect the VCR and when she returned home could not find a receipt. She telephoned the respondent and spoke to a male and explained that she had not been given a receipt. His response was to indicate that he would call her back. Despite a detailed investigation the male to whom she spoke has never been identified. When Ross did not receive a reply Ross rang the respondent again.
Both Ross and the applicant generally agree on what occurred after Ross telephoned the respondent for second time. On this occasion she spoke to the applicant whose name was not known to her until subsequent calls were made and the applicant identified herself. It is the applicant’s case that she did not sell the VCR to Ross and she did not serve her until a later date when the VCR was exchanged because it was faulty. During the first telephone conversation Ross explained that she had not received a receipt and they both agreed that the applicant queried whether the receipt was “in the box”; she then asked Ross to wait on the telephone. The applicant says that she had a look in the sales area and saw a receipt on the floor near the counter. According to Ross she was told that the receipt had been found on the floor and arrangements were made to post it to her. The applicant did not really contest this evidence and it appears from the documentary evidence that the original of the receipt she says she found on the floor was not for the sale of the VCR to Ross. That receipt was for the layby sale by another salesperson of a Phillips VCR 155 to another customer in February 1996. The layby sale was cancelled in March 1996.
It was agreed that a receipt is essential for proof of purchase and for use by a customer if the warranty is to be called upon. The receipt records, amongst other things, the date and time of the sale, the amount paid, the change given and the identity of the sales assistant. The respondent’s records are such that daily merchandise movements are recorded as are each of the transactions with customers. I have already noted that the records tendered in evidence provided no evidence of the subject sale in the period alleged and no record of the receipt of $369.00 more than the sales recorded during the relevant period. In other words, if the cash register did not record the sale the $369.00 should have still been placed in the till for that day’s sales. The respondent did have evidence of one VCR not being accounted for in its stock during that period. Nevertheless, it has no means of identifying the particular VCR held by Ross as one that came out of its stock of VCRs.
According to the applicant after she found the original receipt on the floor, she copied it on the respondent’s facsimile copier and put the original in an envelope addressed to Ross and gave that to administrative staff to post. The facsimile copy she says she kept on a hook in the room behind the counter area. It is Ross’ evidence that she did not receive an original receipt.
Having heard all the evidence and viewed the respondent’s records I am satisfied that it is more likely than not that the original of the receipt copied was read by the applicant because she says she identified it as a receipt for the sale of a Phillips VCR 155. She must then have understood that the only thing that document had in common with any sale to Ross was the description of the goods as a Phillips VCR 155.
When she did not receive the receipt Ross persisted and rang again. It was then that the applicant arranged for a copy to be sent to Ross.
The VCR was faulty and this led to further telephone conversations and a return to the store and exchange of the VCR by Ross. At that time she was served by the applicant and Veljanovski, who was called over by the applicant to check the VCR. He confirmed that it was faulty and then authorised its exchange. The receipt was not mentioned by anyone on that occasion even though Veljanovski made it clear to the Court that the company’s policy was to require a receipt before exchanging goods.
After further delay Ross rang the respondent’s head office and complained that she had not received her receipt. Within days of that call she received a telephone call from the applicant asking her whether she had received her receipt and then agreeing to check the matter again once she was informed that the receipt had not arrived. There was a further telephone call to Ross by the applicant who queried the amount of $369.00, and indicated that a copy receipt would be sent to Ross.
On 25 June 1996 Ross received a faxed copy of a receipt for the layby goods purchased in February 1996 by another customer. The document had written on it the sum of “$369.00” and where the change is recorded the word “nil” was written. Otherwise, the document is a very poor copy of a receipt and very difficult to read. Ross was not satisfied that the document was her receipt and complained to the respondent’s head office. She received another call from the applicant informing her that the applicant would arrange for Veljanovski to check the company’s manifestos again. After this call Veljanovski spoke to Ross and the respondent commenced its detailed investigations of this matter.
The investigations undertaken appear to have dealt with every aspect of the complaint including an examination of the respondent’s records and stock to try and trace the transaction and understand what occurred as well as interviewing staff and witnesses.
The applicant has steadfastly denied any wrong doing and has, in particular, denied that she was the person who originally served Ross and sold the VCR to her. She also denies any training in or knowledge of company policy to do with the giving of receipts. The respondent did not call any evidence to establish any such training or to show the existence of any written policy on the giving of receipts, much less any written policy concerning staff dishonesty.
Concentrating for the moment on the receipt, on the applicant’s evidence she accepts that she made hand written alterations to the faxed copy of the receipt. My conclusion is that when she saw the original of that document and later the copy, she was then aware that the receipt was not for the purchase by Ross of the VCR Ross alleged she had in her possession.
There are two possible scenarios in this case. One is that the applicant altered the receipt and copy and sent it out to Ross just so that Ross, who by then had made numerous complaints, would have a receipt. The second is that she took the course she took because she had not raised a receipt on the register on the first occasion and was then seeking to cover the transaction with the customer on 8 May 1996. Either scenario supports a finding of serious misconduct.
In the period between 25 June 1996 when it received the complaint and the date of the termination, the respondent interviewed the applicant on at least three occasions. She had the opportunity to be represented and availed herself of that opportunity at two of the interviews conducted. The records of the interview were not challenged and indicate that all the factual matters relied on by the respondent to terminate the applicant’s employment were canvassed during the interviews and the applicant had the opportunity to provide whatever explanation she could, particularly in relation to the allegations made by Ross. During these interviews it was made clear to the applicant that her explanations were not accepted. What was put to her at the time was that the applicant had sent the customer a receipt which was obviously not the customer’s receipt and that receipt had been manipulated by the applicant.
When interviewing the applicant and, specifically when terminating her employment, the respondent focused on the conduct in sending an incorrect receipt and the alteration of the receipt sent as serious and unacceptable breaches of its policies.
Although there was no written policy produced to the Court or, indeed, evidence given of some specific policy on the handling of receipts and the receipting of goods, in my view this is a case where common sense was all that was required of the experienced sales assistant in all the circumstances. If her version of events is accepted she had no direct knowledge of a sale of a VCR to Ross and had never met Ross when she first spoke to her on the telephone. When she received the complaint about a missing receipt she eventually sent out a receipt and copy which she must have understood did not relate to any sales transaction between the respondent and Ross. To make matters worse she altered the receipt sent out. The respondent lost the receipt for the layby transaction and, even if that transaction was cancelled, its record was disposed of by the applicant in an irresponsible fashion. She also provided a person with a receipt document without any objective proof of purchase and without making any enquiries to establish that a purchase had taken place.
In accepting as I have that when she saw the receipt she must have known it was not the correct one, then the abovementioned conduct of itself must be viewed as serious misconduct. I am satisfied that at the time she sent out at least the faxed copy receipt to Ross she understood that Ross may use that receipt as proof of a purchase and for any warranty claim. Her sales duties included the recording of sales and seeking proof of purchase on exchanges. Her behaviour at the very least showed a reckless indifference to both her employer’s interests and the customer’s interests.
Accordingly I am satisfied that the respondent was justified in summarily terminating her employment and it would have been unreasonable to expect the respondent to continue her employment during any period of notice where her duties were to serve customers, operate a cash register and receipt goods. I am not satisfied that the applicant has shown on the balance of probabilities that she was denied any or any reasonable opportunity to respond to the allegation relating to the manipulation of a receipt; this being the allegation relied on by the respondent to terminate her employment.
At termination the applicant was told that the respondent reserved the right to hand the matter to the police for investigation, which it subsequently did. The applicant was also informed that the respondent was then aware of a purchase without a record for same and it was in a position where a sum of money could not be accounted for.
It was in my view correctly argued by the applicant that at no time did the respondent allege that she stole or misappropriated the sum of $369.00. Had that allegation been the reason relied on for termination the applicant may have also argued that because of the seriousness of the allegation it was incumbent on the respondent to clearly state that reason so as to not to deprive the applicant of a full opportunity to respond and offer reasons for why it was not the case that she took any money.
The termination was effected prior to the commencement of and the completion of any police investigation. I am satisfied that when the termination took effect Megna, who was responsible for investigating the allegation and making recommendations to Gatsios, did believe the applicant had served Ross and retained the money without properly recording the transaction but this was a matter he could not readily prove. Therefore, he and the respondent relied on other evidence of misconduct providing a basis for recommending termination.
More often than not a set of circumstances leading to the termination of employment provide a variety of potential reasons for termination. If the reason or reasons given provide a proper and rational foundation for termination, the employer’s belief that the employee may have also been guilty of theft, does not necessarily require it to seek to prove this conduct as well as the conduct it relies on to terminate the employment, unless there is some factual basis for concluding that the decision to terminate was made on grounds other than those stated (see Boland v Maningrida Council Inc (1996) 66 IR 382). In this case the respondent focused on the particular conduct to do with the receipt and relied on that as a basis for terminating the applicant’s employment. As I have already indicated on balance the respondent was justified in taking the view it did.
In deciding the case I am able to rely on the respondent’s reason given at termination and the evidence of its witnesses in circumstances where it seems to me that Mr Katz’s opening and closing submissions were at odds with the oral and documentary evidence. Accordingly, it is not necessary for me to make a determination in relation to the second scenario or to be satisfied that on the balance of probabilities the money was stolen.
The order I propose to make is that the application is dismissed.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 20 February 1997
Representative for the Applicants: Shop, Distributive & Allied
Employees’ Association
Appearing for the Applicant: Ms. Suzie Forster
Representative for the Respondent: Victorian Chamber of Commerce &
Industry
Appearing for the Respondent: Mr G. Katz
Date of hearing: 17 & 20 January 1997
Date of judgment: 20 February 1997
0
1
0