Gina Talarico v TSA (Vic) Property Trust as Trustee the Salvation Army (Vic) Social Work T/A the Salvation Army Salvo Stores

[2017] FWC 4484

[2017] FWC 4484

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Bettina Bokori-Mayman; Reneice Ewels; Gina Talarico
v
TSA (VIC) Property Trust as Trustee the Salvation Army (Vic) Social Work T/A The Salvation Army Salvo Stores
(U2017/793; U2017/808; U2017/812)

COMMISSIONER WILSON MELBOURNE, 12 SEPTEMBER 2017

Application for an unfair dismissal remedy.

[1] Bettina Bokori-Mayman, Reneice Ewels and Gina Talarico (the Applicants) were each employed by the Salvos Stores at its Sunbury location with their periods of employment ranging between more than six years in the case of Ms Bokori-Mayman, in excess of eight years in the case of Ms Talarico, and more than 15 years in the case of Ms Ewels. Each was employed as a casual Sales Assistant at the Sunbury store with Ms Talarico being regarded as being in a slightly more senior position.

[2] Each of the Applicants was dismissed by the Salvos Stores in early January 2017 following a short investigation undertaken by the organisation into the conduct of each after which it formed the view that each had stolen product from the store. According to the Employer Response Form filed by the Salvos Stores in these matters the date of effect of dismissal of each was 5 January 2017.

[3] The matters were heard at the same time, although the evidence in relation to the dismissal of each is different. Because of that, I have explained the evidence relied upon in each case, and made findings particular to the allegations against each Applicant.

[4] Ms Moira Rayner, solicitor, was granted permission to represent the Applicants, as was Mr Colin Broadbent, solicitor. Both were granted permission pursuant to the provisions of s.596(2)(a) of the Fair Work Act 2009 (the Act), with the Commission being satisfied that a grant of permission to him would enable the matter to be dealt with more efficiently, taking into account its complexity.

[5] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that the Applicants’ applications were lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time each was dismissed each was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

BACKGROUND

[6] Ms Ewels started work with the Salvos Stores on 13 February 2001 as a casual Sales Assistant and worked for the entire duration of her employment at the Sunbury store. At the time she was dismissed she had worked for slightly less than 16 years with the organisation, and worked as a casual Sales Assistant.

[7] Ms Talarico started work with the Salvos Stores in September 2008. At the time she was dismissed she was the Sunbury store Manager, while still working on a casual basis.

[8] Ms Bokori-Mayman commenced work with the Salvos Stores in June 2010 and also worked as a casual Sales Assistant at the Sunbury store.

[9] Each of the three Applicants had their employment covered by the General Retail Industry Award 2010.

[10] Evidence was given in the hearing by each of the Applicants as well as by Ms Lesley Bastin on their behalf. Ms Bastin was a volunteer at the Salvo Stores at the time, as well as a person who attended on behalf of each Applicant at an interview about the Salvos Stores allegations on 5 January 2017. Neil Lund, the current Salvos Store Acting Chief Operations Officer and Catherine Lowe, the relevant Area Manager, gave evidence on behalf of the Salvos Stores. Prior to his current appointment, Mr Lund was the Security Manager, and the person who installed surveillance cameras in the Sunbury store.

[11] The Sunbury store is one of several stores operated across Melbourne under the “Salvos Stores” retail banner. The Salvation Army (Vic) Property Trust as trustee for the Salvation Army (Vic) Social Work. The work of the Salvos Store includes not only the sale of clothing and other items, but also the receipt of donations from members of the public and the consequential processing of those donations in order to ascertain what may be saleable, for what price; and what is not saleable. Volunteers, as well as employees work within the store.

[12] The evidence provided to the Commission by the Applicants graphically illustrates the need for the people working within the store to deal with an unrelenting supply of “donations” which, in truth, may be closer to rubbish than saleable goods. On a daily basis the people in the store have to sort and remove things left outside the premises which on particular days or times of the year, and especially after a weekend, can amount to a small mountain of refuse within which there may be some saleable items. The goods left outside of the store may have been gone through by people other than the donors before the staff arrive and by the time they do arrive may have been picked over and left in a far less orderly state than originally left by the donor. The evidence included graphic descriptions of the state of some of the material that was left, including some materials with a public health risk. Other goods may well be brought directly to the store counter by donors during opening hours and which may be in a more orderly state than that which is left outside.

[13] The work of the people in the store therefore includes not only receiving goods for the purposes of sale, but also disposing of other materials which are unable to be sold either because of the state of the article or for reasons of hygiene.

[14] In September 2016 the Salvos Stores Security Coordinator “received an anonymous telephone call from a member of the public informing him that a staff member had been observed bringing items out of the Sunbury store and putting them in a car which they then drove off in”. 1 This evidence was given by Mr Lund who is presently the Acting Chief Operations Officer but who was at the time the Salvos Store Security Manager. His evidence is that he was informed of this by the Security Co-coordinator who received the phone call. That person did not give evidence in these proceedings owing to their current ill health. In any event, Mr Lund responded to the notification by installing video surveillance cameras in the Sunbury store in late October, but which did not become operational until late November 2016. Mr Lund’s evidence is that it is Salvos Stores’ usual practice in such situations to install covert video surveillance so as to establish whether any misconduct may be occurring. His evidence is that staff are not informed of this since it would defeat the object of the surveillance.

[15] While the staff were not informed of the surveillance, it appears to have become known, with each of the Applicants learning of it. For example, Ms Bokori-Mayman “became aware in late October 2016 that CCTV cameras had been installed in the Sunbury Salvo store on a Sunday when the store was closed” after the owner of the pet store next door reported it to her. 2 She thought this was “odd as many requests had been made to [Catherine Lowe, Area Manager] for security cameras to be installed out the front of the store where donations were left and plundered overnight, but this never happened”.3 Ms Talarico “knew that a surveillance camera aimed at staff areas had been installed towards the end of last year”.4 Ms Ewels became aware of the installation of a camera in October 2016 and “assumed that the camera was aimed at us, the staff. Cath Lowe [had] made it very clear she had no regard for me or other staff”.5

[16] Mr Lund installed the video surveillance equipment, which comprised of two cameras and associated recording equipment. One of the cameras, Channel 3, was trained on the main front door access and till area (referred to in this decision as the front counter area) and the other, Channel 1, was trained on the sorting tables where the staff and others worked to sort the clothing which had been received (referred to as the sorting table area). Fifteen days of recording was undertaken between 6 December 2016 and 20 December 2016. 6

[17] The vision from Channel 1 is trained on a sorting bench, however the way in which the camera is angled means it provides only a partial view of the particular area. Channel 3 is trained on the front doors, counter and till area and provides a better, but still imperfect, coverage of the relevant area. The recorded vision is by no means high-definition. The evidence before the Commission about the placement of the cameras leads to the finding that the cameras do not cover all of the available entrances and exits within the premises and provide coverage of only a minority of the overall store, perhaps no more than 15% in total (in this regard it should be noted that the Commission had no viewing of the premises and the estimate given is based purely upon a not-to-scale schematic provided to the Commission by Mr Lund). 7

[18] The two cameras were recorded onto a single hard-drive, but in separate files, with a time code showing on the playback. The time code is the same across the two cameras but does not align with actual time (although it appears to be consistent across all the recordings).

[19] Mr Lund’s evidence is that he reviewed all of the footage gathered over the period concerned and that after he had reviewed the footage he identified a number of concerns regarding the conduct of the three Applicants. He showed the footage to the Salvos Stores Area Manager, Catherine Lowe who confirmed the identity of the staff members. 8

[20] Ms Lowe’s evidence is that she saw the video footage at the end of December after being told things about what it contained;

“I was later told by Neil Lund that he believed the footage showed suspicious activity. It showed, for example, the three employees on various occasions:

a. putting stock in bags on the sorting table during the sorting process rather than into the proper receptacles to enable those items to enter stock then leaving the store with those bags; or

b. appearing to leave the store with bags full of items which the footage showed the employee concerned had not brought into the store at the start of their shift.” 9

[21] As a result of Mr Lund’s review of the video footage he drafted an allegations letter to each of the three Applicants which was prepared under Ms Lowe’s name, being the Area Manager responsible for the staff and meetings were arranged with the staff concerned.

[22] Once the letters had been drafted Ms Lowe hand-delivered them to Ms Bokori-Mayman and Ms Talarico on Tuesday, 3 January 2017 and to Ms Ewels on Wednesday, 4 January 2017. The allegations letters referred to events that took place on 11 different dates in December 2016.

[23] For the purposes of developing a coherent chronology, for consistency, and because some of the allegations involve more than one of the Applicants, the numbering set out below is used throughout this decision from this point forward, and my reference to original documents have been changed to reflect this numbering;

Allegation 1. Tuesday, 6 December 2016, an allegation against Ms Talarico that;

“On Tuesday 6 December after the store was closed, you left the store with your handbag and a blue shopping bag. Prior to this it was observed that;

• You obtained your handbag from the office and then the blue shopping bag from the donations area (back room). It is alleged this bag contained items of stock.

• It is alleged that this stock was not paid for and you performed an act of theft.”

Allegation 2. Wednesday, 7 December 2016, an allegation against Ms Talarico that;

“On Wednesday 7 December after the store was closed, you left the store with a cloth shopping bag in your possession. Prior to this it was observed that;

• While sorting clothing stock you selected multiple items from the stock. You then placed these items in the cloth bag that you then left in view on the floor beside the sorting table.

• When leaving you collected this bag from the floor with the items still in it.

• It is alleged that this stock was not paid for and you performed an act of theft.”

Allegation 3. Allegations against Ms Bokori-Mayman and Ms Ewels stated to be pertaining to Thursday, 8 December 2016, but corrected in the interview with each relating to Friday 9 December 2016, that;

• In respect of Ms Bokori-Mayman;

“On Thursday 8 December after the store was closed, you left the store with a second employee {Reneice). Prior to this it was observed that;

• You obtained items of stock from under the service counter, folded them and placed them into your bag and leave with them in your possession.

• It is alleged that this stock was not paid for and you performed an act of theft.”

• In respect of Ms Ewels;

“On Thursday 8 December after the store was closed, you left the store with a second employee (Bettina). Prior to this it was observed that;

• Bettina obtained items of stock from under the service counter and placed these into her bag and leaves with them.

• You were present at this time and witnessed Bettina taking this stock.

• It is alleged that this stock was not paid for and you were an accomplice to an act of theft.”

Allegation 4. Saturday, 10 December 2016, an allegation against Ms Bokori-Mayman that;

“On Saturday 10 December after the store was closed, you left the store with your handbag and a full calico bag. Prior to this it was observed that;

• At the sorting table you placed items of stock from the table into this calico bag.

• It is alleged that this stock was not paid for and you performed an act of theft.”

Allegation 5. Monday, 12 December 2016, an allegation against Ms Talarico that;

“On Monday 12 December after the store was closed, you left the store with multiple shopping bags in your possession including one grey shopping bag. Prior to this it was observed that;

• While sorting clothing stock you selected a jacket from the stock. You were then observed trying on the jacket and shortly after placing the jacket into the grey shopping bag. You are then observed placing other items of stock into this bag that you then leave in full view on the sorting table.

• When leaving you collected this bag with the items still in it from the sorting table.

• It is alleged that this stock was not paid for and you performed an act of theft.”

Allegation 6. Tuesday, 13 December 2016, an allegation against Ms Ewels that;

“On Tuesday 13 December after the store was closed, you left the store with your handbag and a full shopping bag. Prior to this it was observed that;

• You obtained your handbag from your storage area and then collected the full shopping bag from the donations area (back room). It is alleged this bag contained items of stock.

• It is alleged that this stock was not paid for and you performed an act of theft.”

Allegation 7. Thursday, 15 December 2016, an allegation against Ms Talarico that;

“On Thursday 15 December after the store was closed, you left the store with your handbag, a shopping bag and a red Salvos Stores bag in your possession. Prior to this it was observed that;

• When leaving you collected items from under the sorting table and placed these into the red Salvos Stores bag.

• It is alleged that this stock was not paid for and you performed an act of theft.”

Allegation 8. Friday, 16 December 2016, allegations against Ms Bokori-Mayman and Ms Ewels to the effect that

• In respect of Ms Bokori-Mayman;

“On Friday 16 December after the store was closed, you left the store with a second employee (Reneice). Prior to this it was observed that;

• You take an item of stock (a blue box) from on top of the service counter and leave with it.

• It is alleged that this stock was not paid for and you performed an act of theft.”

• In respect of Ms Ewels, two allegations pertaining to the same day were put to her;

The first allegation relating to 16 December 2016;

“On Friday 16 December after the store was closed, you left the store with a second employee (Bettina). Prior to this it was observed that;

• Bettina takes an item of stock (a blue box) from on top of the service counter and leaves with it.

• You were present at this time and witnessed Bettina taking this stock.

• It is alleged that this stock was not paid for and you were an accomplice to an act of theft.”

The second allegation relating to 16 December 2016;

“On this day it was also observed that you left the store with your handbag and an orange pot/bowl. Prior to this it was observed;

• You obtained your handbag and the orange pot/bowl from your storage area.

• It is alleged that this stock (orange pot/bowl) was not paid for and you performed an act of theft.”

Allegation 9. Saturday, 17 December 2016, an allegation against Ms Bokori-Mayman that;

“On Saturday 17 December after the store was closed, you left the store with your handbag and a second distinctive shopping bag. Prior to this it was observed that;

• This distinctive shopping bag came from the donations. You are observed at the sorting table sorting the donations from it and leaving it empty on the table.

• When leaving you obtained your handbag from your storage area, took the empty shopping bag from the sorting table and when then appearing at the service counter 30 seconds later, this distinctive bag was full of items of stock.

• It is alleged that this stock was not paid for and you performed an act of theft.”

Allegation 10. Monday, 19 December 2016, an allegation against Ms Talarico that;

“On Monday 19 December after the store was closed, you left the store with multiple shopping bags in your possession. Prior to this it was observed that;

• While waiting to leave you obtained a red Salvos Stores bag from the displayed stock at the counter area and placed the shopping bags into the red Salvos Stores bag.

• You left the premises with this red Salvos Stores bag.

• It is alleged that this item of stock was not paid for and you performed an act of theft.”

Allegation 11. Tuesday, 20 December 2016, an allegation against Ms Talarico that;

“On Tuesday 20 December after the store was closed, you left the store with your hand bag, another shopping bag and a purple item of textile. Prior to this it was observed that;

• While sorting stock you inspected and selected this purple item from the stock. You then placed this item in view on the sorting table.

• When leaving you collected this item from the sorting table.

• It is alleged that this stock was not paid for and you performed an act of theft.”

[24] The allegations letters informed each of the employees that “[a] formal investigation is currently being undertaken regarding allegations of theft, dishonesty and breach of company procedure within the Sunbury Salvos Stores site” and that they would be required to attend the meeting as part of the investigation, the purpose of which would be to discuss allegations surrounding the employee’s conduct and to provide them with an opportunity to respond. The correspondence informed the recipients after having been provided with the allegations letters, that each employee was required to attend a meeting at the Sunbury Salvos store site on 5 January 2017. Ms Talarico was required to attend at 9:30 AM; Ms Ewels at 10:30 AM and Ms Bokori-Mayman at 11:30 AM.

[25] When the meetings took place they were conducted by Mr Lund who had Ms Lowe in attendance as a witness. In addition, each of the Applicants had with them the same support person, Lesley Bastin, who was a volunteer at the Sunbury Salvos Store.

[26] While the detail of the matters discussed in each of the meetings is the subject of some controversy between the parties, the core elements of each of the meetings includes that Mr Lund raised the subject of the allegations and sought a response. In none of the meetings was the video footage shown to the employees. In each case the employees put forward their response to the allegations, which included a short written response. In each case, after having heard the responses and sought clarification about various matters, there was a break in the meeting with Mr Lund telephoning a Human Resource Officer about the matters that had been raised in the meeting after which he formed a view that the employee should be dismissed. Having formed that view he then communicated the dismissal to each of the Applicants within the relevant meeting before proceeding to the next (noting that both parts of Ms Bokori-Mayman’s meeting were interposed between the first and second part of the meeting with Ms Ewel).

[27] The matters discussed within each of the meetings are summarised below. In considering this summary, it needs to be borne in mind that the meeting concerned took place within two days of the allegations letter having been given to the employee concerned; that the extent of the allegations made against them was set out in the relevant letter; that the allegations being discussed related to events that occurred between two and four and a half weeks before the date of the meeting; and that none of the employees had seen the video footage pertaining to the allegations made against them. Further, none of the Applicants saw the video footage until their preparations for the hearing of their unfair dismissal application.

[28] Ms Lowe took notes of each meeting, which have been provided to the Commission. Although there are claims made about omissions, the sequencing of things discussed in the meeting and the accuracy of what is recorded, I accept the notes as a broadly accurate record of what was discussed. The notes are certainly not to be discarded completely as a meeting record for reason of such minor faults as they do contain.

Gina Talarico

[29] In Ms Talarico’s case the meeting commenced at around 9:25 AM and she provided Mr Lund with a written response. Ms Talarico was asked to answer six allegations, indicated by number in the summary above as Allegations 1, 2, 5, 7, 10 and 11. In respect of Allegation 1, she explained that the blue shopping bag referred to in the allegation from 6 December 2016 contained cat food; and in respect of Allegation 2 she advised the cloth bag referred to in the allegation from 7 December 2016 contained contaminated stock. In relation to Allegation 5 which concerns her leaving the store with a jacket selected from stock, Ms Talarico responded;

“While trying on this above mentioned jacket I noticed what looked like blood stains on the lining so I isolated it in a grey shopping bag and any other similarly contaminated Items were also placed in this bag. At the end of the day I took this bag with me from the store and threw this bag in the outside rubbish bins.” 10

[30] In relation to Allegation 7 she explained that the goods were items she purchased from the pet store next door and that the red Salvo bag she was seen with “was in fact a recycled bag that had been returned to us with donations for the store in it”. In relation to Allegation 10 which concerns Ms Talarico being seen with a red Salvos Store bag that she had not paid for;

“This alleged incident occurred while waiting for my taxi. I had turned off the lights and locked up ready to set the alarm when the taxi came. Prior to arriving at the counter area I was aware that I was going to transfer my shopping to a Salvos bag and I had a $1.00 coin in my hand which I then placed on the counter at the same time that I put my handbag on the counter prior to getting the red Salvo bag to place my shopping in.” 11

[31] In relation to Allegation 11 putting forward that she left the store with a purple item of textile believed to have been stolen, Ms Talarico responded to Mr Lund that “[t]his item was from a bag of donations that I had brought in and while sorting realised that it was put in by mistake and I left it inside so that I would remember to take it back home with me”. In the course of Ms Talarico’s meeting, questions were asked by Ms Bastin about whether the video footage of the relevant incidents would be seen. That matter is recorded in the notes of the meeting taken by Ms Lowe as follows;

“Lesley- Are we going to see the video footage of all these incidents?

NL- You can see the video footage if you wish.

Lesley- GT

Do you want to see the footage?

GT- Hesitates

Lesley-It's up to you

GT- If you want to?

Lesley-No, not at this stage

GT- No not now, maybe later depending on the results.” 12

[32] While there is a dispute between the parties regarding at which point in time during the meeting the point was raised, there appears to be common ground between the parties both that there was a reference in the meeting to viewing the video footage as well as the fact that it was not viewed before the meeting ended.

[33] Having discussed the allegations together with Ms Talarico’s responses, the meeting was suspended at about 9:55 AM and resumed again at about 10:00 AM after which Mr Lund informed Ms Talarico that the Salvos Stores did not accept her version of events and that they believed she had been dishonest and that as a result it was terminating her employment “as of today”. 13

Reneice Ewels

[34] In Ms Ewels case the interview commenced at around 10:15 AM with Ms Bastin in attendance as well. Ms Ewels provided a written response to Mr Lund for his consideration. Ms Ewels was asked to answer three allegations indicated by number in the summary above as Allegations 3, 6 and 8. Ms Ewels response included in relation to the first of the allegations, Allegation 3, relating to her witnessing Ms Bokori-Mayman retrieving items from under the service counter and putting them in her bag, that she believed the goods to be “Bettina’s own personal items”.

[35] In relation to Allegation 6 to the effect that Ms Ewels left the Sunbury Salvos store with a full shopping bag with items collected from the donations area, Ms Ewels explanation was that the “bag would have contained groceries that were purchased by me prior to commencing work it would more than likely have also had my cardigan in it”.

[36] Finally, in relation to the first part of Allegation 8 to the effect that she witnessed Ms Bokori-Mayman take a blue box from the service counter she explained that she believed this was a container Ms Bokori-Mayman had brought to work with Christmas items in it as a donation and that she was taking the box home. The second part of Allegation 8 relates to her leaving the store with an orange pot which Ms Ewels explained was her personal property.

[37] There is no contention that Ms Ewels neither asked to see the video footage nor that she was shown it during the course of the interview.

[38] According to Ms Lowe’s notes, after some discussion of the allegations the meeting was suspended at about 10:25 AM for the purpose of Mr Lund speaking to Ms Bokori-Mayman about the explanations Ms Ewels had given in relation to the matters within Allegation 3. Following this, the meeting resumed at about 11:10 AM at which time there was a short discussion about the blue box. Mr Lund then informed Ms Ewels that the Salvos Stores accepted her explanation in relation to the allegations which I have numbered as Allegations 3 and 8 but informed her that he did not accept her other responses and that he did not believe the responses were honest and that the Salvos Stores would be terminating her employment effective the same day. She was also informed that there would be no notice period and that she would paid all outstanding entitlements as well as receiving a termination letter within seven days.

Bettina Bokori-Mayman

[39] The interview with Ms Bokori-Mayman was conducted by necessity between the two parts of Ms Ewels interview, with the first part of the meeting starting at about 10:30 AM. Again Ms Bastin attended as a support person for Ms Bokori-Mayman and Mr Lund and Ms Lowe participated on behalf of the Salvos Stores.

[40] Ms Bokori-Mayman was asked to answer four allegations as set out above, being those numbered by me as Allegations 3, 4, 8 and 9. She too had a written response for the consideration of Mr Lund which she provided to him at the start of the meeting.

[41] In relation to Allegation 3, that she had been observed taking stock from under the service counter and that she was with Ms Ewels at this time, Ms Bokori-Mayman responded that the items in question were her personal items that she was taking home with her.

[42] In relation to Allegation 4, being that on Saturday, 10 December 2016 that she had exited the store with a full calico bag containing stock taken from the sorting Bench, Ms Bokori-Mayman responded that the bag contained only contaminated items. In relation to Allegation 8, that on Friday, 16 December 2016 that she had been observed leaving the store with Ms Ewels taking stock in the form of a blue box, she explained that she had brought the box to the store with Christmas donations in it and that after donating the items she was taking the box home with her for further use.

[43] In relation to Allegation 9 being that on Saturday, 17 December 2016 that she was alleged to have taken from the sorting area a distinctive shopping bag full of stock, Ms Bokori-Mayman explained that the “distinctive bag” was her own; that she had brought it to the store with donations and her breakfast in it and that at the end of the day she had retrieved the bag and filled it with her lunchboxes and breakfast dishes to take home.

[44] After discussion of the allegations and responses the meeting was suspended according to Ms Lowe’s notes at about 10:50 AM during which, Mr Lund spoke with the Salvos Stores Human Resource Officer. When the meeting resumed at about 10:55 AM, Mr Lund informed Ms Bokori-Mayman that her responses to Allegations 4, 8 and 9 were not accepted and that she was considered to have been dishonest and that as result her employment would be terminated the same day.

[45] The letter of termination that was sent to Ms Bokori-Mayman refers to the response in regard to Allegation 3 as being accepted by the Salvos Stores, but that the remaining allegations were considered to have been substantiated.

[46] Following the dismissal, each of the three Applicants were provided with letters of termination setting out the reasons for their termination. Each of the letters records the allegations made against the individual employee and then sets out the investigation process, the employee’s responses to the allegations and then the Salvos Stores findings and the outcome of the investigation. The salient parts of each of the termination letters are set out below.

Gina Talarico

[47] After repeating the allegations made against her, the letter advises;

“The Investigation Process

2. You were informed of the allegations of suspected theft of stock and dishonesty by your Area Manager, Cath Lowe, in person and via letter on Monday 2 January 2017.

3. You were suspended from work without prejudice on full pay and asked to consider and provide a response to the written allegations at a meeting scheduled for Thursday 5 January 2017.

4. You were informed that the allegations were extremely serious and advised to bring a support person to this meeting.

Your Response

Your response to each of the allegations was provided in writing and it is noted that you held a position during the interview, that you had nothing to say outside of this written statement. Despite repeated requests for more detailed information, you continued throughout the entire interview maintaining this negative position. You did not at any time willingly assist in providing further constructive information to the allegations made or the conclusions reached in this letter of termination.

The Findings

5. After considering all available evidence, the investigation has made the following findings:

a) The CCTV video evidence in conjunction with detailed sales records and staff purchase records, supports [Allegations 1, 2, 5, 7, 10 and 11] and does not support your explanations for what has been alleged.

i. Such actions are in breach of both documented company procedure and the employee code of conduct and constitute Gross Misconduct in the form of theft of company property.

The Investigation Outcome

6. Due to the serious nature of the findings above the decision was made to summarily terminate your employment with Salvos Stores.

7. Your last day of employment with Salvos Stores will be Thursday 5 December 2017.

8. Any monies owed, including any accrued but unused annual leave entitlements, will be paid out to you.

9. A separation certificate will be mailed to you within 28 days.

10. Special note - Termination for an act of theft is an offence that is generally referred to the police for investigation, as such Salvos Stores will be referring this matter to the police.” 14

[48] Although the letter of termination refers in item 7 to the last day of employment being “Thursday 5 December 2017”, the month referred to is obviously an error, with the actual termination date being Thursday 5 January 2017, which is the day Ms Talarico was informed her employment had ended (noting that 5 December 2016 was a Monday).

Reneice Ewels

[49] Ms Ewels was informed;

“The Investigation Process

2. You were informed of the allegations of suspected theft of stock and dishonesty by your Area Manager, Cath Lowe, in person and via letter on Tuesday 3 January 2017.

3. You were suspended from work without prejudice on full pay and asked to consider and provide a response to the written allegations at a meeting scheduled for Thursday 5 January 2017.

4. You were informed that the allegations were extremely serious and advised to bring a support person to this meeting.

Your Response

Your response to each of the allegations was provided in writing and you provided additional cooperation in the form of answers to questions asked about the allegations.

The Findings

5. After considering all available evidence, the investigation has made the following findings:

a) Your explanation to allegation [3], that the items removed from under the counter were in fact Bettina's own items of clothing, is accepted.

b) Your explanation to allegation [8, second part] that the item (orange pot/bowl) was your own, is accepted.

c) The CCTV video evidence in conjunction with detailed sales records and staff purchase records, supports allegations [6 and 8, first part] and does not support your explanations for what has been alleged.

i. Such actions are in breach of both documented company procedure and the employee code of conduct and constitute Gross Misconduct.

The Investigation Outcome

6. Due to the serious nature of the findings above the decision was made to summarily terminate your employment with Salvos Stores.

7. Your last day of employment with Salvos Stores will be Thursday 5 December (sic) 2017.

8. Any monies owed, including any accrued but unused annual leave entitlements, will be paid out to you.

9. A separation certificate will be mailed to you within 28 days.

10. Special note-Termination for an act of theft is an offence that is generally referred to the police for investigation, as such Salvos Stores will be referring this matter to the police.” 15

Bettina Bokori-Mayman

[50] Ms Bokori-Mayman was informed;

“The Investigation Process

2. You were informed of the allegations of suspected theft of stock and dishonesty by your Area Manager, Cath Lowe, in person and via letter on Monday 2 January 2017.

3. You were suspended from work without prejudice on full pay and asked to consider and provide a response to the written allegations at a meeting scheduled for Thursday 5 January 2017.

4. You were informed that the allegations were extremely serious and advised to bring a support person to this meeting.

Your Response

Your response to each of the allegations was provided in writing and you provided only a limited level of cooperation to questions asked as you saw fit.

The Findings

5. After considering all available evidence, the investigation has made the following findings:

a) Your explanation to allegation [3], that the items removed from under the counter were in fact your own items of clothing, removed from your person throughout the day, is accepted.

b) The CCTV video evidence in conjunction with detailed sales records and staff purchase records, supports allegations [4, 8 and 9] and does not support your explanations for what has been alleged.

i. Such actions are in breach of both documented company procedure and the employee code of conduct and constitute Gross Misconduct in the form of theft of company property.

The Investigation Outcome

6. Due to the serious nature of the findings above the decision was made to summarily terminate your employment with Salvos Stores.

7. Your last day of employment with Salvos Stores will be Thursday 5 December (sic) 2017.

8. Any monies owed, including any accrued but unused annual leave entitlements, will be paid out to you.

9. A separation certificate will be mailed to you within 28 days.

10. Special note - Termination for an act of theft is an offence that is generally referred to the police for investigation, as such Salvos Stores will be referring this matter to the police.” 16

LEGISLATION

[51] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows;

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.

CONSIDERATION

[52] Determination of whether the Applicants’ dismissals were harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[53] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way; 17

“[28]The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 18

• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 19

• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 20

• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 21 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 22” (original references)

[54] I will deal with each of the criteria within s.387 in turn.

(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)

[55] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship;

“At the same time the reason 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 each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 23

[56] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 24 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.25 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.26

Gina Talarico

[57] Ms Talarico was asked to answer six allegations, namely Allegations 1, 2, 5, 7, 10 and 11. The core of each of the allegations is that Ms Talarico stole goods that were, or should be, for sale by the Salvos Stores. The only direct evidence offered by the Salvos Stores in respect of any of the allegations is the video footage admitted in the course of the proceedings. Beyond that the Respondent relies upon the circumstances of each matter as well as concessions made by Ms Talarico in the course of the interview with her.

Allegation 1

[58] Allegation 1 is that on 6 December 2016 in the course of leaving the premises and having retrieved her personal belongings Ms Talarico took with her a blue shopping bag which she had obtained from the donations area in the back room of the store. The Salvos Stores allege that the bag contained items of stock that had not been paid for by Ms Talarico.

[59] The video footage shows Ms Talarico leaving the sorting bench area close to the end of the day. She has a khaki coloured shoulder bag apparently with not much in it. She moves out of sight of the Channel 1 camera and appears in shot of the Channel 3 front counter camera a short time later carrying both a khaki shoulder bag and a blue shoulder bag. The blue shoulder bag apparently now has items in it (which cannot be identified). The blue bag does not feature in the earlier parts of the video. Ms Talarico’s explanation is that the blue bag contained cat food purchased from the shop next door.

[60] While the finding can be made that Ms Talarico left the premises with a blue shoulder bag, the video footage is inconclusive as to whether the bag contained Salvos Stores property. On the balance of probabilities the Commission is unable to find that this amounts to misconduct.

Allegation 2

[61] Allegation 2 is particularised as an event on 7 December 2016 in which Ms Talarico was alleged to have been observed placing multiple items of stock into a cloth bag, that she left the premises with the items still within the bag and that she had not paid for the stock thereby having stolen the goods in question. The allegation relies upon the video footage as well as the matters discussed in the meeting with Mr Lund and Ms Lowe on 5 January 2017.

[62] Ms Talarico’s written response to the Salvos Stores at the meeting on 5 January 2017 attended by Mr Lund and Ms Lowe is in the following terms;

“This mentioned cloth bag that was left in view on the floor next to the sorting bench that I allegedly placed selected stock into during the day while I was sorting was in fact contaminated stock that at the end of day I placed in the outside rubbish bins. (This practice is used when we come across items contaminated with what looks to be body fluids and is for the safety of staff who normally handles the uncontaminated rubbish transfer to the outside bins)” 27

[63] In the course of her oral evidence to the Commission, Ms Talarico explained that she knew that she had left with a bag because she did so every day. She explained that it was the ordinary way of dealing with stock for her to gather soiled items together and put them into the same bag.

[64] The video footage shows Ms Talarico at the sorting bench handling several items of stock, appearing to be garments. After reviewing one black garment she places it in a bag. She then tries on another black item which she also places into the same bag. A short time later she examines a final black item of stock and also places that into the same bag. Having placed these items into the bag, she appears to inspect and then fold a larger item, possibly a multi-coloured towel, blanket or rug and similarly places it in the same bag. The bag is then placed on the floor at the foot of the bench towards the centre top of the video screen. It is noticeable that the bag in question appears to be a light coloured cloth bag with large black markings or writing, elongated vertically. Sometime later Ms Talarico and another staff member return to the screen from the right of the picture, looking as if they are to leave for the day. Ms Talarico has a shoulder bag over her left shoulder and has two bags in her left hand, one of which appears to be a grey plastic bag and the other a light coloured cloth bag. 28

[65] Ms Talarico then collects the cloth bag in question from the floor near the bench and she exits to the left of the screen. The lights appear to go off in both the sorting bench and front counter areas near to the same time and Ms Talarico and another person are then seen in the front counter area. At this time Ms Talarico is carrying a large box of greenery, appearing to be plants, as well as having a shoulder bag over her left shoulder and what appears to be two bags looped over her right wrist. One of the bags looped over Ms Talarico’s wrist is what appears to be the cloth bag picked up from the workbench. The bag is full of items and is light in colour and appears to have large black writing on it, elongated vertically. The other person with her leaves through the front door; Ms Talarico sets the alarm and leaves the premises, moving to the left of the closed doors.  29

[66] After considering the care taken by Ms Talarico in inspecting the items in question, folding each item and then placing each into the bag, it is implausible that Ms Talarico was disposing of contaminated stock, let alone stock that had been contaminated with body fluids. She tried on one of the garments in question and carefully folded the multicoloured rug or blanket before placing it into the bag.

[67] As a result, I find on the balance of probabilities that Ms Talarico removed from stock the items belonging to Salvos Stores with the intention of taking them home with her and that she did not in fact dispose of them in the bins outside of the store. As a result, this allegation can be substantiated as misconduct on the part of Ms Talarico.

Allegation 5

[68] This allegation is that on Monday, 12 December 2016 Ms Talarico stole from the store a jacket that had been received into stock. The particulars are as follows;

“• While sorting clothing stock you selected a jacket from the stock. You were then observed trying on the jacket and shortly after placing the jacket into the grey shopping bag. You are then observed placing other items of stock into this bag that you then leave in full view on the sorting table.

• When leaving you collected this bag with the items still in it from the sorting table.

• It is alleged that this stock was not paid for and you performed an act of theft.”

[69] The available video footage shows Ms Talarico trying on a jacket while at the sorting bench, albeit she is mainly out of shot when she puts the jacket on. Even so, she is observed twirling the jacket around to insert her sleeves and putting it on over other clothing. She pulls on the chest and rear of the jacket as one would for wearing comfort or to check a fitting. The jacket is a distinctive grey colour with light coloured writing on the rear of the jacket in an arc. Having tried on the jacket Ms Talarico walks off to the right of the screen and returns within about 30 seconds. When she returns from the right, an article of clothing appearing to be the same as the jacket is in her left hand. She places the article into what appears to be a multicoloured plastic bag and moves to a bench towards the upper right of the screen, doing something outside of the vision of the camera. 30

[70] Sometime later Ms Talarico is shown on the same camera, Channel 1, looking as if she is about to leave for the day. She has several bags with her, including what appears to be a shoulder bag and a coloured cloth bag. She moves to the upper right of the screen and retrieves something from the bench, which appears to be a multicoloured plastic bag with an object within it. She then proceeds to the left of the screen and disappears from view.  31

[71] Ms Talarico is then seen in the front counter area with another person. At this time Ms Talarico has several bags in her hands which she places on the front counter bench near the till and rearranges items within the bags. After placing her shoulder bag back onto her shoulder she takes the other bags in her left hand, including what appears to be a multicoloured cloth bag, which at this time appears to have a greater number of items within it than when she left the sorting bench. She codes the alarm and leaves the premises with the other person. Ms Talarico and the other person walk away from the building initially by 2 or 3m to the left and then move away from the building perpendicular to its doors and remain out of sight of the camera from that point. 32

[72] Ms Talarico’s written response to the interview meeting on 5 January 2017 concedes that she did in fact take the jacket in question out of the building, putting forward that she did so because the item was contaminated by blood and that she threw it out in the bag in question in the outside rubbish bins;

“While trying on this above mentioned jacket I noticed what looked like blood stains on the lining so I isolated it in a grey shopping bag and any other similarly contaminated items were also placed in this bag. At the end of the day I took this bag with me from the store and threw this bag in the outside rubbish bins.” 33

[73] The witness statement provided by Ms Talarico to the hearing, put forward that her response at the time of the 5 January meeting was “a ‘best guess’ about what they asked me about because I had never seen the CCTV, and felt it probably wasn’t safe to ask to see it while I was in a termination interview”. 34 Specifically in relation to this allegation, she put forward the following;

“On 12th December I left with multiple shopping bags including a grey shopping bag; tried on a jacket from stock together with other items, then left with it. The CCTV does not show me trying on a jacket at all. My bag was full of pet food. I have five cats and a dog and bought it from the pet shop next door. I walk away from the sorting table with nothing from the table on the CCTV” 35

[74] In the course of giving evidence to the Commission Ms Talarico explained that at the time of giving her response and taking part in the interview meeting she had not seen the relevant video footage and that after seeing it in preparation for the hearing her view was now not what had been put forward in the response but rather that she recognised it as her own grey jacket and that she was taking it home. Nonetheless, she accepted that she had left the premises with the bag in question.

[75] Taking into account all of the evidence which is available to the Commission in relation to this particular allegation as well as the manner in which Ms Talarico gave her evidence not only about this allegation but other matters as well, I consider her statement that the jacket was her own to be implausible, given what was stated within her witness statement.

[76] The proposition that Ms Talarico’s memory was jogged by viewing the video footage not previously seen by her in preparation for the hearing is plausible; however the recognition that what had been seen at the time was property of her own is something that would ordinarily be expected to be reported at an earlier time than the giving of her oral evidence.

[77] Noting that the witness statement was probably prepared prior to her viewing of the video footage, an amendment to the written witness statement could have been made, with little criticism following such an amendment. However, the amended evidence that was given by Ms Talarico was somewhat late in her cross-examination. Further, Ms Talarico’s witness statement puts forward the plainly erroneous statement that “the CCTV does not show me trying on a jacket at all”. Even allowing for the possibility that Ms Talarico had not seen the footage when the witness statement was finalised, that should have been corrected prior to her adopting the statement. Her failure to make such obviously necessary corrections leads to the finding that Ms Talarico was likely not candid with the Commission, as well as with her former employer.

[78] As a result, the finding is available to the Commission that on the balance of probabilities Ms Talarico removed from stock the grey jacket in question and took it home and that it was not her own property. As a result, this allegation of Salvos Stores can be substantiated as misconduct on the part of Ms Talarico.

Allegation 7

[79] Allegation 7 relies upon a claim by the Salvos Stores that Ms Talarico left the store on 15 December with a red Salvos Store bag in her possession containing items that had been collected from the sorting table which she had been working on earlier in the day. Again, the allegation is made that the stock taken from the premises was not paid for and thereby was an act of theft.

[80] Ms Talarico’s explanation given in the meeting on 5 January 2017 was that the red bag contained items belonging to her which had been purchased from the pet store next to the Salvos Store and that the bag was “a recycled bag that had been returned to us with donations for the store in it”. 36

[81] While the video footage demonstrates that Ms Talarico was working at the sorting bench in the course of the day and that she left the premises with a large red bag, it is inconclusive as to whether the things within the red bag were Salvos Store stock or something else. Accordingly, this allegation cannot be substantiated as misconduct.

Allegation 10

[82] This allegation relies upon the proposition that when Ms Talarico came to leave the store on Monday, 19 December 2016 she obtained a red Salvos Store bag from the displayed stock in the counter area and placed other bags she had with her into the red bag and then left the premises without paying for the red Salvos Store bag.

[83] Ms Talarico’s response to the 5 January 2017 meeting included that she was waiting for a taxi and that “[p]rior to arriving at the counter area I was aware that I was going to transfer my shopping to a Salvos bag and I had a $1.00 coin in my hand which I then placed on the counter at the same time that I put my handbag on the counter prior to getting the red Salvo bag to place my shopping in”. 37 In the course of giving evidence to the Commission Ms Talarico said that she had been stressed while wondering where the taxi was and that she needed to obtain a bag, since her own had broken. Subsequently, she had placed one dollar for payment for the bag on the register. She believed that she may have put the money on the till when she folded the towel and believed that she had left it on top of the till because it had already been closed for the night and the drawer had been left open.

[84] The available video footage indeed shows Ms Talarico at the front counter with numerous bags and waiting, with some impatience, presumably for a taxi as she said. She is seen to place a towel on the front counter bench and to refold it but does not appear to place anything in or around the till. After several minutes waiting and pacing and rearranging of the bags in question Ms Talarico takes one of the red Salvos bags from the counter display and progresses to repack some of her bags into the red bag. She then waits a further few minutes, sets the alarm and leaves the building. At no stage within the time that she is within the counter area does Ms Talarico place money on the counter for the bag. 38

[85] The balance of probabilities, supported by my findings in relation to other allegations is that Ms Talarico’s responses to Salvos Stores and her evidence to the Commission lacks credibility in relation to those matters and thus allows a finding that Ms Talarico likely did not pay for the bag in question and did not intend to do so. As a result, this allegation of Salvos Stores can be substantiated as misconduct on the part of Ms Talarico.

Allegation 11

[86] Allegation 11 relies upon the contention by the Salvos Stores that on Tuesday, 20 December 2016 Ms Talarico was seen leaving the store with a “purple item of textile” that she had taken from stock but not paid for, with that action amounting to theft on her part.

[87] Ms Talarico responded to the allegation in the meeting on 5 January 2017 that the item in question was her own; that she had brought it with her in a bag of donations and while sorting the donations “realised that it was put in by mistake and I left it in sight so that I would remember to take it back home with me”. 39

[88] In the available video footage Ms Talarico is seen picking up a purple textile item, possibly a scarf or something similar, inspecting it and then folding it and then places it on top of the workbench. Ms Talarico and another person then walk past the workbench, coming from the right of the screen, as if to leave for the day. Ms Talarico picks up the purple item and walks to the left of the screen out of vision. She and the other person are then seen at the front counter area through the vision on Channel 3. The two go through the process of setting the alarm and leaving the premises, but Ms Talarico is not observed to have the purple textile item. 40

[89] In the context of the available evidence, firstly that the evidence given by Ms Talarico that the product in question was her own property and secondly that she is not observed leaving the premises with it, I regard the evidence in relation to this allegation to be inconclusive. Accordingly, I am unable to make a finding of misconduct in relation to this allegation.

Reneice Ewels

[90] Ms Ewels was asked to answer three allegations namely Allegations 3, 6 and 8. At the time of terminating Ms Ewel’s employment the Salvos Stores indicated to her it was satisfied with her response to Allegation 3, but found 6 and 8 were substantiated.

Allegation 6

[91] Allegation 6 is that Ms Ewels was seen leaving the store on Tuesday 13 December 16 with a full shopping bag with it being alleged that she had collected the bag from the donations area and that it contained items of stock that had not been paid for, which was therefore theft.

[92] Ms Ewels’ response is that the shopping bag would have contained groceries that were purchased by her before commencing work and that more than likely the bag would have also held her cardigan. 41 In the interview that was conducted on 5 January 2017 about this allegation and the others put to her, Mr Lund referred to an earlier incident in her employment in which she was cautioned by Ms Lowe “about being very careful of perceptions of stock of your own we take out of store”.42 Ms Ewels challenged the relevance of the reference, saying that it had been over 12 months previously. In the Salvos Stores investigation summary the responses provided by Ms Ewels are summarised as;

“• RE responds that the items in this bag were her grocery shopping items purchased before work. When asked where she stored this bag and any of her personal possessions RE responds the lunch area, her locker or sometimes the office.

• CCTV does not show RE arriving with a/the shopping bag.

• The shopping bag is recovered from the donation storage/receiving area of the store.” 43

[93] The video footage of this particular allegation shows Ms Ewels arriving at work with a single black bag looped over her hand which appears to hold some, but not many items. Footage from the front counter later in the day when Ms Ewels is leaving the premises shows her leaving with a black bag and a larger cloth bag of a lighter colour. The larger cloth bag appears to be full of items, however there does not appear to be video footage that shows the contents of the bag, or anything being put into it. 44

 84 (1995) 67 IR 316

 85   [2000] AIRC 1151, Print S5109,

 86   Ibid, at [41] - [43]

 87 (2013) 229 IR 6, [2013] FWCFB 431

 88 Ibid, at [54].

 89  

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