Gary Homes v Coles Group Limited T/A Coles Warehouse Edinburgh Parks

[2014] FWC 1013

[2014] FWC 1013

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Homes
v
Coles Group Limited T/A Coles Warehouse Edinburgh Parks
(U2013/3067)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 10 FEBRUARY 2014

Application for unfair dismissal remedy - no valid reason for dismissal - reinstatement - order for lost remuneration.

[1] On 11 September 2013 Mr Homes lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) relative to the termination of his employment with Coles Group Limited T/A Coles Warehouse Edinburgh Parks (Coles). Mr Homes’ application was referred to me for arbitration and was the subject of a hearing on 29 and 30 January 2014. Mr Blairs of the Shop, Distributive and Allied Employees Association represented Mr Homes and Ms Berry of counsel represented Coles.

[2] Mr Homes was a full-time stock controller in the warehouse freezer section at the Edinburgh Distribution Centre. He had been engaged by Coles since 2007. Mr Homes was summarily dismissed on 10 September 2013 following an incident on 30 August 2013. At the time of his dismissal Mr Homes was advised that the termination of his employment was because he had removed Coles property without authorisation and that this was considered to be serious and wilful misconduct.

[3] Having considered the evidence in this matter I have set out a summary of the circumstances which led to the termination of Mr Homes’ employment.

[4] I have noted that Mr Homes received a first and final warning for taking unauthorised breaks and deliberately recording incorrect downtime codes in January 2013 and that he was further cautioned about inappropriate language on another occasion.

[5] Coles provide employees in the freezer section with materials for hot drinks during breaks from the freezer work. Those materials included Milo. Mr Homes prepared his own mix of Milo, drinking chocolate, coffee and raw sugar. His evidence was that he generally took some Milo provided by Coles home in a small Tupperware container, added the other ingredients at home and then returned the container to work. He kept this mix in a container in his locker at work, so that he could put it in a thermos and add hot water to drink this during his breaks.

[6] On 30 August 2013 Coles’ management was made aware that Mr Homes had been seen putting Milo from the lunchroom into an empty container and then putting the full container into his bag. Mr Homes was subsequently searched as he left the workplace. This search revealed the Tupperware container with Milo or a Milo mix in his bag. Mr Homes told the security officer that he bought the Milo or the container from home. Mr Homes was subsequently suspended pending an investigation.

[7] Mr Homes was interviewed on 10 September 2013. He was accompanied by a union delegate as a support person. At this meeting Mr Homes advised that the Milo was from the lunchroom and that he had advised the security officer that it was his own Milo because he was shocked at that question. Mr Homes explained how he mixed his own drink by taking Milo home and mixing it with the other ingredients. After a number of breaks in this meeting, Coles’ management advised that Mr Homes was to be summarily dismissed for serious and wilful misconduct. Mr Snoad, the then Acting Operations Manager was present in this interview and advised that he would escort Mr Homes from the premises. Mr Homes objected to Mr Snoad doing this and said that if he saw him on the street Mr Snoad should not try to talk with him.

The Submissions

[8] Mr Homes’ position is that Coles could have stopped him taking Milo home for his work drink mix as he had made no secret of this. In this respect Mr Homes asserts that his use of the Coles Milo was consistent with the purpose for which it was provided.

[9] Additionally, Mr Homes’ position is that Coles provided the Milo for employee use. There were no restrictions on how employees could utilise or consume the Milo. Accordingly, at the time at which he dispensed the Milo into his container for that purpose, the Milo became his own property such that he could not later then be accused of removing Coles’ property without authorisation.

[10] In any event, Mr Homes’ position was that his behaviour did not represent a valid reason for the termination of his employment and that the penalty of termination of employment was harsh in that it was disproportionate to the nature of his conduct.

[11] Mr Homes took issue with the termination of employment process in that he asserted that the Coles investigation was inherently flawed because a proper attempt to establish Mr Homes’ intentions with respect to use of the Milo were not pursued and that there was no evidence of any deliberate attempt on Mr Homes’ part to mislead Coles.

[12] Coles assert that Mr Homes inappropriately used its resources, took its property in the form of the Milo and then engaged in dishonest and misleading conduct in that, on 30 August 2013 he said it was his Milo and then subsequently altered his position. Coles assert that Mr Homes’ conduct breached its employee Code of Conduct and that its decision to terminate Mr Homes’ employment was based on a valid reason given the significance it attached to theft and employee compliance with that Code.

[13] Coles assert that the process followed was procedurally fair such that the termination of Mr Homes’ employment was neither harsh, unjust nor unreasonable.

The Evidence

[14] Mr Homes’ evidence went to his practice of generally putting some Coles Milo in his own container, taking it home and adding other ingredients. Mr Homes’ evidence was that he only ever drank that mixture at work and that when he drank Milo at home it was purchased by himself or his father. His evidence was that, on 29 August 2013 he had forgotten to bring some Milo home from work so he bought his own ingredients into work. He added Milo to those ingredients and then inadvertently packed the container with his own mix in it back into his bag. He conceded that he should have left the Milo mix in his locker.

[15] Mr Homes’ evidence went to the check conducted by the security officer on 30 August 2013, his shock and his subsequent advice that the container was his. Mr Homes gave evidence about the interview on 10 September 2013 where he confirmed his Milo mix practices and his use of that mix at work.

[16] Mr Homes’ position was that, had he been told not to continue his practice of taking Milo home and bringing it back as a Milo mix, he would have stopped doing this.

[17] Ms Gibbs was Mr Homes’ shift manager. Her evidence was that on 30 August 2013 she was advised that an employee had seen Mr Homes filling a container with Coles Milo and then placing it in his bag. Ms Gibbs spoke to Mr Mumford, the Coles Distribution Centre Manager and with a Human Resources officer and, presumably, with Mr Snoad. She and Mr Snoad attended the security checkpoint where an inspection of Mr Homes’ bag was arranged to occur.

[18] Ms Gibbs’ evidence was that, when the container with the Milo in it was identified, Mr Homes was asked where the Milo had come from. He advised that he had bought it from home.

[19] Ms Gibbs evidence went to the meeting on 10 September 2013 when she asked Mr Homes why he would bring Milo from home when it was freely provided by Coles. Mr Homes then explained that he was shocked when asked about the Milo on 30 August 2013 but that the container was his and the Milo element of the mix was from Coles.

[20] Ms Gibbs’ evidence was that the meeting was suspended to enable consideration of Mr Homes’ response and discussions which she had with the Coles Distribution Centre Human Resource Manager and Mr Snoad. Ms Gibbs advised that her conclusion, and that of those other two persons, was that the allegations of theft and misuse of the Milo were established such that the summary termination of Mr Homes’ employment was warranted.

[21] Mr Snoad’s evidence was that, on 30 August 2013 he attended the security station and observed a plastic container which he regarded as full of Milo being taken out of Mr Homes’ bag. He asked Mr Homes where he got the Milo from and Mr Homes advised that he got it from home.

[22] Mr Snoad attended the meeting on 10 September 2013. He confirmed Ms Gibbs evidence about that meeting with the exception that he advised that, during at least one break in the meeting he conferred with Mr Mumford and understood that Mr Mumford made the ultimate decision to terminate Mr Homes’ employment. Mr Snoad referred to the Coles’ Code of Conduct. He confirmed that Mr Holmes had last been trained in that Code in January 2012.

[23] Mr Thompson conducted the search of Mr Homes’ bag. His evidence went to this search. He was unsure of whether Mr Homes was confused by the questions asked of him after the container with the Milo or Milo mix was found in his bag.

[24] Mr Robert Homes is Mr Homes’ father. Mr Homes resides with him. Mr Robert Homes’ evidence was that he was aware of Mr Homes practice of making the mix and that he understood from Mr Homes that Mr Homes consumed this mix at work and that the only product in it which was taken from Coles was the Milo. Mr Robert Homes confirmed that Mr Homes consumed Milo at home from a home provided supply. I note that much of Mr Robert Homes’ evidence was based on advice provided to him by his son and as such I have placed limited weight on this evidence.

[25] Mr Cocks, Mr Mielniczuk and Mr Kakoschke all gave somewhat similar evidence, to the effect that they worked with Mr Homes and were aware that he generally drank a Milo mix from his own container, which he normally kept in his locker. Mr Campbell provided a witness statement but did not give sworn evidence. This statement was similar in effect to that provided by the other employees.

[26] Mr Golding is also a Coles employee. His evidence confirmed that on 30 August 2013 he saw Mr Homes filling what he thought was an empty lunchbox with Milo from the Coles dispenser and then placing this lunchbox in his bag. Mr Golding spoke to another team member about this and was subsequently asked to report this to his Team Leader.

Findings

[27] I am satisfied that Mr Homes normally drank his Milo mix only at work and that his general practice was to take Milo home to prepare that mix. This appears clear from Mr Homes’ evidence and that of the other Coles employees. I am similarly satisfied, on the evidence of Mr Homes and his father, that the Milo he drank at home was not provided by Coles.

[28] I have concluded that, when questioned on 30 August 2013, Mr Homes was surprised.

Mr Homes’ response was inconsistent with the advice provided to Coles’ management by Mr Golding. Had Mr Homes been asked more detailed questions or, questions of a different nature, a quite different light may have been cast on the matter. I have reached this conclusion on the evidence of Mr Homes and Ms Gibbs who agreed that Mr Homes appeared shocked, when called in to be searched.

[29] I have concluded that Coles provided the Milo to employees for use at work and that, notwithstanding that in a legal sense, ownership of the Milo became vested with the employees when they took it from the dispenser, consumption of that Milo for personal reasons outside of work would represent misuse and hence misconduct. The extent of that misconduct would depend on the particular circumstances. I have noted that instructions to employees regarding the use of such consumables have not been made out.

[30] I have concluded that Mr Homes had a Milo mix in the container in his bag on 30 August 2013 and that he intended to drink that Milo mix at work over the following days. In this respect I accept his evidence that his placement of the container in his bag rather than his locker was inadvertent. 1 It is clear from his evidence and the evidence of other employees is that they commonly saw the container in his locker at work.2

[31] I have concluded that, during the interview on 10 September 2013, Mr Homes was consistent in his advice of his Milo drinking practices and his intentions in this respect.

[32] Coles has a legitimate interest in protecting its business operations from fraud and misuse of assets and facilities, the Code of Conduct is well-known and is a relevant guide in this respect. This Code does not, however, dictate every circumstance which might apply to the use of Coles’ assets and facilities. In this regard this situation must be assessed on the basis of what is reasonable and fair. Mr Homes’ intentions are also relevant in this respect.

Section 387

[33] This section states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[34] I have considered each of these factors in the circumstances of this case.

Valid Reason

[35] Notwithstanding that it was determined under a different legislative scheme which incorporated the concept of a valid reason with a number of factors now separately identified in s.387, Northrop J’s observations in Selvechandron v Petersen Plastics Pty Ltd 3 remain relevant:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly.”

[36] I have concluded that, in these particular circumstances, Mr Homes’ actions in taking home the container filled with Milo which he took from the Coles dispenser did not represent a valid reason for the termination of his employment. In this respect, I accept Mr Homes’ evidence that he had added his own ingredients to the Milo such that it was a Milo mix. Mr Homes did not have Coles’ management approval to take Milo home and had it not been for the evidence which clearly indicates that the Milo mix was to be used at work and that it was generally kept at work, I may have arrived at a different conclusion. As it is, the material before me clearly indicates that Mr Homes was using the Milo for the purpose for which it was intended. I have concluded that he should not have taken the Milo home but I do not consider that his actions in doing so represented theft or inappropriate behaviour which could form a valid reason for termination of his employment, let alone summary dismissal. At the meeting on 10 September 2013 Mr Homes made Coles’ management aware of the use to which he put the Milo. That information could have been simply verified by Coles. Had Coles established that Mr Homes had a Milo mix with him on 30 August 2013 or that his general practice was to create such a mix for work consumption, Mr Homes’ behaviour would most likely be seen in a quite different light. If Coles had instructed Mr Homes not to take Milo home and he subsequently breached that instruction, his behaviour could have formed a valid reason for termination of employment. Alternatively, if Mr Holmes had not be able to establish the use to which he put the Milo, I may have concluded that his actions represented theft and have then adopted the same conclusions as Cartwright SDP arrived at in Petrosillo v Coles Group Supply Chain. 4

[37] In concluding that there was no valid reason for the termination of Mr Homes’ employment I have had regard to the Coles Code of Conduct. 5 This Code relevantly states:

“Company Resources

Coles will not accept deliberate or reckless damage to, or the theft or misuse of its resources, or the resources of others who we interact with in our work with Coles.

Resources include: stock, money, equipment, stationery, files, data, records, computer hardware and software, intellectual property and company work time.

I will:

Use company resources for the purpose intended.

....”

[38] If considered in isolation from his normal practice, Mr Homes’ actions in taking the Coles provided Milo home without authorisation represented a purpose contrary to the intention of the provision of the Milo. However, when the entirety of Mr Homes’ customs and practices relative to the use of the Milo are taken into account, the purpose of this use is consistent with its intended purpose. Further, I am satisfied that his actions in taking the Milo mix home on 30 August 2013 reflected an unintended oversight rather than any form of deliberate and wilful misconduct. The Code does not establish that behaviour of this nature would warrant summary or other dismissal without investigation of all of the circumstances.

[39] I have considered whether Mr Homes’ response on 30 August 2013 represented misleading or untruthful advice. In this regard I am unable to be sure whether the question asked of him by Mr Snoad related to the Milo, the Milo mix, or the container itself such that Mr Homes’ response was necessarily inaccurate or misleading. I have, however, concluded that Mr Homes was shocked and somewhat confused about the search on 30 August 2013 and that this impacted on his response. I do not consider that his response, in those circumstances, represented a valid reason for his summary dismissal.

[40] Finally, I have concluded that while there is some uncertainty about which of Coles managers actually made the termination of employment decision, and particularly relative to whether Mr Mumford was involved in making that decision, this does not affect the extent to which, in these particular circumstances, no valid reason for that termination has been established to me.

Notification of the reason

[41] Mr Homes was advised of the reason for the termination of his employment.

Opportunity to respond and access to a support person

[42] Mr Homes was given an opportunity to respond to the proposed termination of his employment. Notwithstanding this, I am not satisfied that response was given significant weight or was subject to any significant investigation. Mr Homes had access to a support person.

Warning regarding unsatisfactory performance

[43] Mr Homes was dismissed for serious and wilful misconduct. Whilst he had previously been given a first and final warning for misconduct, the two issues were completely unrelated and neither was related to performance issues.

Size of Coles: in terms of procedures and access to dedicated human resource management expertise

[44] Coles is a very large employer. I am satisfied that it had sophisticated human resource management procedures and that Coles’ human resource management expertise was involved in the decision to terminate Mr Homes’ employment.

Other matters considered relevant

[45] I have considered two other matters.

[46] Firstly, I have considered Coles’ legitimate concern that inappropriate use of its resources cannot be tolerated and has potential significant cost implications. This is a legitimate concern but does not detract from the need for Mr Homes’ employment situation to be assessed on the basis of a fair go all-round. 6

[47] Secondly, even if I had concluded that Mr Homes’ actions in taking the Coles provided Milo home represented a valid reason for the termination of his employment, the penalty of summary dismissal must be inconsistent with inadvertent behaviour of that nature. As I have indicated, Mr Homes’ behaviour could not be properly characterised as theft. The matter could have been addressed through instruction and certainly did not strike at the very heart of the employment relationship.

Summary - Harsh, Unjust or Unreasonable

[48] I have concluded that the termination of Mr Homes’ employment was harsh in that it was disproportionate to his conduct. It was unjust to the extent that it was based on limited questions asked of him on 30 August 2013 and a limited enquiry on 10 September 2013. Finally, it was unreasonable in that it was not founded on a valid reason and was based on an excessively rigid application of the concept of misuse of Coles’ resources. Accordingly, the termination of Mr Homes employment was unfair.

Remedy

[49] Section 390 establishes that, given this finding, a remedy may be ordered. This section states:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[50] As a consequence I have considered the primary remedy of reinstatement.

[51] Mr Homes’ position is that the termination of his employment reflected an error in judgement by Coles, that there has been no breakdown in the relationship between Mr Homes and Coles, and that the Coles Distribution Centre has over 400 employees and can easily accommodate Mr Homes.

[52] The Coles position is that the relationship between it and Mr Homes has broken down because of Mr Homes’ behaviour and the comments he made in the termination of employment interview on 10 September 2013. Coles further relies on Mr Homes’ evidence in the hearing where he asserted that Coles had made him out to be a scapegoat, that he did not trust Coles and asserted that he was not honest in admitting to being counselled relative to his use of inappropriate language.

Findings - Remedy

[53] Nothing was put to me to the effect that the position which Mr Holmes had immediately before the termination of his employment did not remain in existence. Further, I am satisfied that other positions with terms and conditions no less favourable than those which applied to Mr Homes are also available.

[54] I have concluded that the primary basis for the decision to terminate Mr Homes’ employment was flawed. This is a factor which supports reinstatement. Had it been established that Mr Homes stole the Milo this may have mitigated against reinstatement.

[55] It is well established that, when trust and confidence in an employee have been lost, this may represent an impediment to reinstatement. However the reason for an employer’s loss of confidence and trust in any employee must be soundly and rationally based. 7 In Australia Meat Holdings Pty Ltd v McLauchlan8 a Full Bench of the Australian Industrial Relations Commission stated:

“In Perkins v Grace Worldwide (Aust) Pty Ltd (at 191-192), the Full Court of the Industrial Relations Court said:

“ … we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits.”

While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case.”

[56] I have adopted this approach.

[57] I am not satisfied that Mr Homes’ statement to Mr Snoad on 10 September 2013 should properly be regarded as a threat. I have taken into account the evidence about that statement, and the manner in which it was made in defence. Mr Homes’ evidence was that: 9

“I thought that Craig was two faced so I said that I didn’t want Craig to escort me out.

Louise Gibb said that she would walk me out.

I then turned to Craig and said “If I see you out on the street don’t try to talk to me” or words to that effect.

Craig said “I’ll write that down.”

I responded “good, because you might forget.”

What I meant by this was that if Craig saw me outside of work I did not want him to act as if nothing had happened and try to be friendly to me.

I held Craig personally responsible for my termination because he didn’t like me for some reason.”

[58] Mr Homes expanded on this in his evidence: 10

“Mr Blairs: .. OK, and finally, in relation to the exchange between yourself and Mr Smoad that you refer to in paragraph 31 of your statement, do you hold any grudge or any hard feelings against Mr Snoad?

Mr Homes: .. Not at all, that was said off the cuff .. I wouldn’t say in the heat of the moment, but not even a friendly warning, it was just said that we are not friends at work, we are not friends outside of work, it was just ... he’s an associate at work and not to talk to me on the street, it was not meant to be in any way an intention to be a threat.

Mr Blairs: .. OK, and to you think you could work with Mr Snoad successfully in the future?

Mr Homes: .. Yes I could, I’m willing to apologise for what I said.

Mr Blairs: .. OK, and would you have any problems with Mr Snoad giving you instructions or acting as your manager?

Mr Homes: .. Not at all.

Mr Blairs: .. Even if he needed to discipline you or change a roster that you didn’t like?

Mr Homes: .. That’s the way I’ve been over the last 6-7 years at work, I’ve done what the company has asked.

Mr Blairs: .. And finally, would you be happy to attend a mediation with Mr Snoad to clear the air if there were any lingering concerns on behalf of Mr Snoad?

Mr Homes: .. Most certainly.”

[59] Mr Snoad’s evidence confirmed that he regarded Mr Homes’ comment as a threat but he also acknowledged that, having just been dismissed, Mr Homes’ may have been emotionally affected. 11

[60] Ms Gibbs observation was that: 12

“Mr Blairs: What was the comment?

Ms Gibbs: The comment was something like ... ‘I hope I never see you on the street’, or it was something like that .... and also getting towards the end, that’s why with Gary was quite upset and that’s why I was the manager along with Leroy Cooke and actually went with Gary and went off the site. Craig had nothing to do with the exiting of Gary off the site.

Mr Blairs: OK, so he was upset with Craig?

Ms Gibbs: Yes.

Mr Blairs: And Craig had been the person who ...

Ms Gibbs: I believe Craig was the person that had done the previous discussion and I believe it was with the previous shift manager that was in there.

Mr Blairs: But you escorted him off the property ... off the premises?

Ms Gibbs: Yes, well I walked with Gary and Leroy, yes.

Mr Blairs: And there were no comments or animosity directed toward you as he left the site?

Ms Gibbs: No, Gary at the time did actually thank me ... as I said, I never had any problems with Gary before that.”

[61] I have concluded that this statement was not a personal threat against Mr Snoad but was instead, an attempt by Mr Homes to express his annoyance at the position adopted by Mr Snoad. In that respect it was understandable.

[62] I have concluded that Mr Homes did not particularly like Mr Snoad but that he did not have substantive dealings with him and understood and respected that Mr Snoad was a senior manager. Mr Snoad’s evidence confirmed that while he commonly saw Mr Homes, he had very little to do with him. 13 I do not consider that Mr Homes’ position relative to Mr Snoad was sufficiently destructive of the employment trust and confidence so as to preclude ongoing employment.

[63] Apart from the alleged threat to Mr Snoad on 10 September 2013, Ms Gibbs’ evidence was that she was aware of previous discussions between Mr Homes and other managers  14 but she had a good rapport with Mr Homes and her only concern was that Mr Homes was ‘a bit disgruntled’15 with past supervisors and she understood that he was considering alternative positions within Coles.

[64] This evidence does not establish an insurmountable impediment to reinstatement.

[65] The evidence of Mr Homes was that he intended to remain with Coles for the rest of his career. This is a factor which favours reinstatement. Mr Homes’ admission of distrust of Coles management is not, in my view, an insurmountable obstacle to reinstatement.

[66] Mr Homes was given a first and final warning in January 2013. He admitted that his behaviour at that time was inappropriate and there is no evidence of subsequent behaviour that would prejudice reinstatement. The evidence also indicates that some form of disciplinary discussion occurred at an earlier time relative to Mr Homes’ inappropriate language, but little information about that has been provided and, again, I cannot conclude that in the circumstances of this matter, that incident represented a breakdown in the employment relationship.

[67] For these reasons I consider that reinstatement is appropriate.

[68] Section 391 states:

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

[69] I consider that Mr Homes should be reinstated to the position he held immediately before the termination of his employment, or to another position on terms and conditions no less favourable than those which then applied. Coles may elect which of these options apply depending on its staffing and workload considerations. It is for Coles and Mr Homes to determine if a successful working relationship can be maintained in the future.

[70] Section 391(2) provides that the Commission may make an order to maintain continuity of service since the termination of Mr Homes’ employment. Given the circumstances of this matter and particularly, my conclusion that there was no valid reason for the termination of Mr Homes’ employment, I consider that continuity of service should appropriately be maintained.

[71] Section 391(3) also provides that the Commission may make an order for remuneration lost, or likely to be lost, by Mr Homes. I consider that an order for lost remuneration is appropriate in these circumstances. I am satisfied that this is consistent with my conclusions about the termination of employment decision. I have also taken into account the evidence that Mr Homes has actively sought to limit his losses by seeking alternative employment.

[72] I am satisfied that Mr Homes has not earned income from other paid employment despite seeking alternative employment and that he is not likely to do so before he resumes employment.

[73] I have concluded that Mr Homes should be paid his normal ordinary hours payment from the date of the termination of his employment to the date of reinstatement less any amounts received by him for Centrelink payments unless Mr Homes establishes that he is then obliged to repay Centrelink. In the event that this matter cannot be resolved it may be referred back to me for determination.

[74] An Order [PR547642] reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

D Blairs Shop, Distributive and Allied Employees Association for the applicant.

C Berry counsel for the respondent.

Hearing details:

2014.

Adelaide:

January 29, 30.

 1   Exhibit H2, paras 57-62

 2   Exhibit H4, paras 10 and 11, Exhibit H5, paras 13-15, Exhibit H6, paras 7-9, Exhibit H7, para 17

 3 (1995) 62 IR 371 at 373

 4   [2009] AIRC 3

 5   Exhibit C3, Attachment CS6

 6   See s.381(2)

 7   See Perkins v Grace Worldwide (Aust) Pty Ltd, (1997) 72 IR 186

 8 (1998) 84 IR 1

 9   Exhibit H2, paras 129-135

 10   Transcript of 29 January 2014, Sound File: 10:19:54

 11   Transcript of 29 January 2014, Sound File: 2:48:50

 12   Transcript of 29 January 2014, Sound File: 3:48

 13   Exhibit C3, para 3

 14   Transcript of 29 January 2014, Sound File: 3:47:29

 15   Transcript of 29 January 2014, Sound File: 3:45

Printed by authority of the Commonwealth Government Printer

<Price code C, PR547641>