Dayton, Christopher Noel v Franklins Ltd

[1997] FCA 996

FEDERAL COURT OF AUSTRALIA

EMPLOYMENT LAW - Termination of employment - Review of Judicial Registrar’s decision dismissing application alleging unlawful termination - Applicant employed as night fill manager in supermarket - Applicant dismissed for stealing cigarettes - Applicant admitted he took the cigarettes but claimed to have paid for them when store opened for business - Evidence of admissions by applicant to officers of employer and police officers that he had not paid for the cigarettes - Applicant’s written account of interview by officers of employer records him as admitting he had not paid for cigarettes - Employer’s allegation of stealing accepted - Determination that this constituted a valid reason for termination of the applicant’s employment.

Industrial Relations Act 1988 (now Workplace Relations Act 1996) s 170DE(1)

CHRISTOPHER NOEL DAYTON v FRANKLINS LIMITED

NI.1901 OF 1996

JUDGE:         WILCOX J
PLACE:         SYDNEY
DATE:           5 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI.1901  of   1996

BETWEEN:	CHRISTOPHER NOEL DAYTON APPLICANT
AND:	FRANKLINS LIMITED RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	5 SEPTEMBER 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for review be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI.1901 of 1996

BETWEEN:	CHRISTOPHER NOEL DAYTON APPLICANT
AND:	FRANKLINS LIMITED RESPONDENT

JUDGE:	WILCOX J
DATE:	5 SEPTEMBER 1997
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an application for review of a decision by a Judicial Registrar dismissing an application by Christopher Noel Dayton pursuant to s 170EA of the Industrial Relations Act 1988, as it was at the time of the relevant events. At that time Mr Dayton was employed by the respondent, Franklins Limited, as night fill manager at its Marrickville store.

On the morning of 6 June 1996, after he had worked through the night, Mr Dayton was called to the office of the store manager, Mr John Hunter, and there introduced to Mr George Nasr, a loss prevention officer employed by Franklins. Mr Dayton was interviewed about stealing cigarettes and, according to evidence given before the Judicial Registrar, admitted having done so.  Later that morning he was interviewed by two police officers attached to Newtown Police Station.  According to evidence given by one of them, Detective Senior Constable William O'Hearn,  Mr Dayton again admitted taking cigarettes.   He was asked why he did this, and replied "When you're busy and team leader you don't get time to go and buy them so I took them".  Detective Senior Constable O'Hearn says he then asked, "Did you offer to pay for them?" and Mr Dayton replied, "No".  When asked whether he had recorded himself, in company records, as taking the cigarettes and owing a debt to the company, he said  "No".

Some video films were available at the hearing before the Judicial Registrar but they did not find their way into evidence.  Apparently there was some question about whether this was appropriate, having regard to other proceedings, but the Judicial Registrar ruled it was not necessary in any event.  The case put to her by Mr Dayton was that he did take cigarettes, but he paid for them, on each occasion, when the store next opened for business, at 8.30am.  As I understand the position, the video films would show Mr Dayton in the store taking cigarettes from cartons, but there was apparently no issue about this before the Judicial Registrar.  The same position applied this morning before me.  Mr Dayton told me he did not dispute he took cigarettes; the issue was whether or not he paid for them.

Mr Dayton sought an adjournment of the hearing today.  The reason he gave was that he had two witnesses who were not here today.  He referred to an affidavit to which he had annexed statutory declarations made by these two people.  After reading the affidavit and the statutory declarations, I refused the adjournment.  In doing so, I took into account two things.  First, today’s hearing was fixed on 15 May last, that is to say some three and a half months ago, at a directions hearing conducted by me.  Mr Dayton was present;  he represented himself.  At that time I gave directions regarding any further evidence.  They included that any affidavits or statutory declarations setting out evidence to be adduced on behalf of the applicant be filed and served by the end of June.  The relevant statutory declarations were made in May and no reason has been given why Mr Dayton did not take action to have the witnesses attend Court today.  It seems to me that, in the absence of some explanation, I ought not to adjourn the matter, with the consequential waste of today’s hearing date. 

I was also influenced by my opinion that the evidence of neither of these witnesses would, in any event, take Mr Dayton's case any distance. 

The first statutory declaration was made by one Patrick Axisa.  He deposes to having worked under Mr Dayton in the night shift at Franklins at Marrickville.  There is a problem about the dates:  he refers to 1997, but he must mean 1996.  I read the declaration accordingly.  He then goes on:

“Franklins began to blow their budget owing up to 100 hours to some of the team members in the night fill.  I heard that Chris/Mr Dayton was being promoted and placed on the day shift.  I heard a few days later on the PA announced to all staff that Mr Dayton had been terminated for theft announced by management.  I believe Chris to be a hardworking, honest manager.  I do not believe he would be the type of person capable of theft.  I am at the moment a manager at Hungry Jacks Bankstown.”

This is a character testimonial.  I do not think it would carry the case any significant distance.  The essence of the case against Mr Dayton is that, as he admits, he did take cigarettes; and, as he is said to have admitted at the time (although this is now denied), he did not pay for them.  It is not uncommon for people who are apparently hardworking and honest to commit minor offences. 

The other statutory declaration is made by Reginald Charles Grant.  It deals at some length with the security system at Franklins’ Leichhardt store.  It goes on to state that the deponent was transferred to the Marrickville store in August 1995 and the security system there was similar.

I do not think there is relevance in any of that.  The only part of the declaration which is of any significance is the following part:

“Towards the middle of January 1996 Mr Chris Dayton, night fill team leader, was observed by me paying for cigarettes when checkouts opened 0830 hours, informed whoever was on checkout to see management if they had a problem with it.  Apparently they did not have a problem when he said he wanted to pay for them from the night before.”

If this evidence were accepted, it would establish that, on one occasion, Mr Dayton paid for cigarettes he had taken during the night.  In evidence today, Mr Dayton described the first occasion on which he took cigarettes.  He said this was January.  He also said that, when the checkout staff came on duty, he indicated to one of them he had taken cigarettes, and proffered payment saying  "If there is a problem tell management to come and see me".  Apparently, the person on the checkout simply took the money and nothing more was said about the matter.

I am prepared to accept that on the first occasion he took cigarettes, Mr Dayton did indeed pay for them in the way he has described; and I am prepared to accept that Mr Grant may have observed this occurring and overheard a conversation along the lines of his statutory declaration.  The real question is whether subsequent takings were paid for. 

No evidence was called by either party from any checkout operator.  I can understand the reason for this.   Months after the event, it would be very difficult for Mr Dayton to identify the person to whom he made payment on any particular occasion.  It would probably be even more difficult for Franklins to disprove payment.

In that situation, if there were no admissions, I might have reached the conclusion that the employer had failed to establish the existence of a valid reason for termination of Mr Dayton’s employment.  But there are admissions.  Evidence was given by both Mr Hunter and Mr Nasr of admissions made to them.  Evidence was also given by Detective Senior Constable O'Hearn.  These were all oral admissions and are subject to the usual problem of determining whether the person's memory of the conversation is correct and admissions are being fabricated.  In saying that, I do not suggest these witnesses, or any of them, should be disbelieved.  I simply make the point that oral admissions are more vulnerable than written admissions.

The problem facing Mr Dayton, and he is conscious of it, is that he himself wrote an account of his interview with Mr Hunter and Mr Nasr.  This account occupies four pages taken from his diary.  The document states it was written between approximately 10.30 am and 11 am on the morning of the interview.  In evidence today Mr Dayton adhered to these times, although he said he could not be precise.  The note itself says it was about 10 am when he was called into Mr Hunter’s office, introduced to Mr Nasr and interviewed.

It follows from these times that the diary note was written very soon after the interview.  In evidence today, Mr Dayton said he thought he wrote the diary note after the police had interviewed him.  I suspect that recollection is incorrect, not only because Detective Constable O'Hearn stated he went to the store at 11.20am, but also because Mr Dayton was arrested immediately after the interview, taken to the police station, electronically interviewed and then taken to Balmain police station where he was formally charged.  He would have been away from the store for some time.

I do not think it much matters whether the diary note was written before or after the police interview.  What matters is its substance.  The note commences with this opening question from Mr Nasr:  "Did you take cigarettes from the strongroom?"   The response written down by Mr Dayton at the time is:  "I said ‘yes’, he said ‘how many’, I said ‘I don't know’, he said  ‘Once, twice, how many times?’, I said  ‘I don't know, maybe once or twice’".  Mr Nasr then suggested to him there was evidence that he had been doing it once or twice a week and asked whether that was true.  Mr Dayton responded:  "I don't know, then I said, ‘yes’".  Mr Nasr suggested it had been happening since October, but Mr Dayton pointed out he had been night fill leader only since January.  He was then asked when he first took a packet and responded:  "I don't know, maybe January, February, March".  He wrote:  "They asked me ‘how many times a week were you taking it?’, I said ‘Once or twice’, Mr Hunter said:  ‘I have evidence on quite a number of occasions you have been taking cigarettes from the strongroom, three or four times a week, is that right?’".  Mr Dayton then noted:  "I went silent".  He then records Mr Hunter's statement:  "‘Chris, you can tell us the truth’", I said  ‘No’.  He said:  ‘When was the last time you took a packet?’, I said, ‘I don't know, maybe two or three weeks ago”.  Then there was reference to whether it was one week previously or two weeks.  He was asked what he did with the cigarettes; he said he smoked them.

According to the diary, Mr Dayton was asked how many packets he had taken and he said “I do not know, maybe 5, 10, 15, I do not know”.  There was further discussion about the number of cigarettes.  Importantly, Mr Nasr, according to the diary note, asked “Did you pay for them?”  Mr Dayton recorded himself as answering: “No”. 

It seems to me the note of this admission, in Mr Dayton's own hand, renders his case impossible to accept.  I cannot conceive how he would have recorded himself as having given that answer, if his position was he had always paid for cigarettes he took from the store.  All the evidence concerning what was said at or about the time of termination indicates he made no claim to having paid for the cigarettes.

As I say, Mr Dayton may have begun by paying for the cigarettes.  Perhaps realising that nobody knew he was taking them unless he said something, he thereafter decided not to bother paying.  If this is so, it was a very foolish thing to do, as he recognises today.  The case is really a very sad one because Mr Dayton seems to have had a promising career in Franklins.  However, the evidence starkly indicates Mr Dayton admitted at the time that he had taken the cigarettes without paying for them; that is to say, he had stolen them.

Mr Dayton was in a position of trust.  He was the senior person in a large store during the night, with control of the storeroom keys and some 50 people working under him.  It seems to me that, if a person in such a position is caught stealing, an employer has little option other than to terminate his employment.  To put the matter in terms of the legislation, there is certainly a valid reason for the termination related to the operational requirements of the  employer's undertaking.

As I say, this is a sad case; but I must uphold the employer's submission that there was a valid reason for termination of the applicant.  The consequence is that the application for review must be dismissed.  I so order.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:             5 September 1997

The Applicant appeared in person
The Respondent was represented by the Retail Traders Association of New South Wales
Date of Hearing:	5 September 1997
Date of Judgment:	5 September 1997