Harvey, Gerrard Leslie v Campbell Soups

[1997] FCA 1085

GERRARD LESLIE HARVEY v. CAMPBELL SOUPS
No. VI 1300 of 1997

FED No. 1085/97
Number of pages - 11
Industrial Law

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

PARKINSON JR

Industrial Law - complaint of UNLAWFUL TERMINATION - JURISDICTION - whether termination at the initiative of the employer - whether RESIGNATION - VALID REASON - whether full and proper investigation carried out - OPPORTUNITY TO RESPOND to allegations of SERIOUS MISCONDUCT - REMEDY - whether REINSTATEMENT IMPRACTICABLE -

Workplace Relations Act 1996 ss170DC, 170DE, 170EA, 170EE

Briginshaw v Briginshaw (1938) 60 CLR 336

Grout v Gunnedah Shire Council (1995) 62 IR 150

Mohazab v Dick Smith Electronics Pty Ltd (No.2) (1995) 62 IR 200

Perkins v Grace Worldwide (Australia) Pty Ltd (unreported, IRCA, Moore J, 4 September 1996)

Reader v Wyndham Lodge Nursing Home Inc. (unreported, IRCA, Moore J, 26 March 1997)

Sangwin v Imogen Pty Ltd (unreported, IRCA, von Doussa J, 8 March 1996)

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

SHEPPARTON, 21-22 July 1997 (hearing), 29 September 1997 (decision)

#DATE 29:9:1997, MELBOURNE

#ADD 24:10:1997

APPEARANCES

Counsel for the Applicant: Mr. Monti

Solicitors for the Applicant: Faram Ritchie Davies

Counsel for the Respondent: Mr. M. McDonald

Solicitors for the Respondent: Mallesons Stephen Jaques

THE COURT ORDERS THAT:

1. Pursuant to Subsection 170EE(1)(a)(i) of the Workplace Relations Act 1996, the respondent on Monday 6 October, 1997, reinstate the applicant by reappointing him to the position he occupied immediately before the termination of his employment.

   2. Pursuant to Subsection 170EE(1)(b)(i) of the Workplace Relations Act, 1996, the employment of the applicant by the respondent be treated for all purposes as having been continuous between the date of the termination of employment and the date of reappointment made in accordance with Order 1 herein.

   3. Pursuant to Subsection 170EE(1)(b)(ii) of the Workplace Relations Act, 1996, the respondent pay to the applicant, within 21 days of the date of this Order, remuneration lost by the applicant as a consequence of the termination of the employment, between 14 October, 1996 and the date of reappointment pursuant to Order 1 herein.

   4. The parties have leave to apply to the Court upon 24 hours notice in the event that agreement cannot be reached in relation to the calculation of the amount of lost remuneration ordered pursuant to Order 3 herein.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules

PARKINSON JR

This is an application made pursuant to Section 170EA of the Workplace Relations Act 1996.(`the Act') The respondent operates a manufacturing plant at Shepparton, in North Eastern Victoria. The plant manufactures soup and other food products, and employs approximately 200 people. The applicant was employed by the respondent as a cleaner on the afternoon shift. The applicant was initially employed on a seasonal basis in 1987 and become a full time employee in 1988. The employment terminated on 14 August 1996.

In this proceeding the respondent raises a preliminary jurisdiction issue. It contends that the applicant resigned his employment and there was consequently no termination at the initiative of the employer. The respondent contends that the applicant resigned after having received advice from his workplace union delegate as to the alternatives available to him and after having spoken to a union officer in Melbourne who advised to the contrary. The respondent contends that it took no steps to induce the applicant's resignation and that the decision to resign was based only upon incorrect advice the applicant received from the local workplace delegate, that his superannuation and accrued entitlements would be reduced if he did not resign but was dismissed by the respondent.

The applicant contends that the resignation was induced by the actions and conduct of the respondent and that the respondent acted in a manner intended to bring about the termination of the employment. In this regard the applicant refers to similar considerations as those referred to by the Full Court in Mohazab v Dick Smith Electronics Pty Ltd (No.2) (1995) 62 IR 200, and the cases discussed therein. The applicant in this proceeding bears the onus of establishing that there has been a termination of the employment at the initiative of the employer. In order to determine the jurisdiction issue, it is necessary to consider the factual circumstances surrounding the termination of the employment.

The applicant worked as a cleaner on the afternoon shift. His hours of work were from 3:30pm to midnight. He had been a full time employee of the respondent for 8 years and was on all accounts a good and conscientious worker. During the course of 1996 the respondent was installing a new and state of the art rotary cooker. The installation of the equipment took place over a number of months and involved the use of contractors in various aspects of the installation process. The area where the equipment was being installed was located in a central area of the factory premises. The evidence of the applicant, not contested by the respondent, was that the employees had been encouraged to visit that area during the installation phase, to view for themselves the new equipment and the progress of the installation.

On Friday 9 August, 1996 a contractor, Mr. Owen Gregory, who was working at the site, reported to the shift manager that a cupboard in which he stored his tools had been broken into, sometime after he left the premises at approximately 4.00 - 4.30 pm on Thursday afternoon. He reported that the lock securing the cupboard had been broken and that a power tool, namely an angle grinder, had been stolen. The evidence establishes that the power tool was taken some time between 4.30pm on Thursday 8 August and 6.30am on Friday 9 August, 1996.

On Friday 9 August, 1996 the shift supervisor, Mr. Ginevera, called a meeting of all the production shift, including the cleaners, advised them of the theft and that if the angle grinder was returned before start of shift on Monday morning the matter would not be taken any further. Neither the applicant, nor another employee, Mr. Selva, were present at that meeting. They were not due to return to work until the following Monday afternoon, as a result of being on a rostered day off on Friday, 9 August 1996. The applicant and Mr. Selva were informed of the incident prior to returning to work on Monday 12 August for the afternoon shift. The applicant says he was informed of the incident on Monday morning in the course of a conversation with a colleague. He said he had returned home on Sunday afternoon and remained at home that evening. The respondent contends that it is likely the applicant was informed earlier in the day in time for him to arrange for the angle grinder to be returned, however there is no evidence to support this contention or to contradict the applicant's evidence in this regard and Mr. Franze was not called to give evidence.

The evidence is that on Sunday 11 August, 1996 at approximately 8:30pm, the angle grinder was returned to the premises and left at the gate near the security guard house. The evidence of the security guard is that he found the angle grinder when he returned to the guardhouse, after having done his routine patrol of the premises. The evidence of Mr. Gregory, the contractor, is that he was informed by the security guard that Mr. Selva returned the angle grinder. This is denied by the security guard and Mr. Selva denies having returned the angle grinder. As to this matter, I am prepared to accept, having regard to the level of rumour and innuendo in the workplace surrounding the incident, that Mr. Gregory may merely have been informed of the security guard's belief or supposition. As I appreciated his evidence, Mr. Gregory was not told that the security guard personally observed the angle grinder being returned by any person. There is no evidence in the proceedings of any person actually observing either the applicant or Mr. Selva in the possession of the angle grinder, nor of Mr. Selva returning the item.

On Monday 12 August, 1996 it came to the attention of the Factory Manager, Mr. Miller, and the Human Resources Manager, Mr. Shaw, that 2 employees had been seen at approximately 10.30pm on Thursday 8 August, in the area from where the angle grinder had been stolen. The employees concerned were the applicant and Mr. Selva.

The evidence of Mr. Shaw was that he was informed that:

(Transcript) (page 63) ---...Mr. Harvey and Mr. Selva had been seen in the vicinity of the cabinet where the grinder was located, before it went missing. As a result of that information I then spoke to with Mr. Harvey and Mr. Selva when they first returned to work after I received that information.

(page 71) Well what was the evidence which had been presented to you until then? --- As I said, that Joe Ginevera had related to me the incident that the two people - that the angle grinder was missing and that Mr. Selva and Mr. Harvey had been seen at the cabinet.

Well who - what information was given to you that they had been seen at the cabinet? --- Joe, as I said, Joe Ginevera told me that. From whom ? --- one of the maintenance fitters, Andrew Axleby. That information was given to you? --- by Joe Ginevera, yes.

On Monday 12 August, 1996 the respondent, by Mr. Shaw and Mr. Miller, questioned the applicant and Mr. Selva as to their knowledge of the stolen item. The applicant and Mr. Selva, having discussed the matter together, denied having been present in the room from which the item was stolen and no explanation was given to the respondent at that time to explain the conduct of the applicant in touching the cabinet or the lock.

The respondent then proceeded to engage a firm of security agents to inquire into the matter. As a result of a telephone conversation between Mr. Miller and a director of Advent Security Pty Ltd, (`Advent'), employees of Advent attended at the respondent's premises on the afternoon of Monday 12 August, 1996. They had a discussion with Mr. Miller and Mr. Shaw, and then proceeded to interview members of the workforce. After some investigation of the matter, it became apparent to management and to the employees of Advent that there was a level of dissatisfaction and tension in the workplace as a result of the investigations. The evidence is that there was a decision taken by the respondent, together with the security agents, to "change tack and to use the level of internal tension to provide a resolution to the issue".(Exhibit A4)

At about this time Mr. Elston was informed by Mr. Carn of Advent "that it would be better for the applicant if he resigned". The evidence of Mr. Carn is that this statement was not made by him but was discussed at a meeting which occurred between Mr. Elston, the local union delegate, Mr. Shaw, Mr. Miller and himself. His evidence was also that this proposition was put also in the context of the difficulties being faced by other employees in the workplace and the respondent's desire to resolve the matter. I am satisfied that this was the point in the process of the investigation into the theft that the respondent and its agents ceased to further investigate the allegations against the applicant and a situation was created which was designed to bring about the resolution of the matter. The evidence of Mr. Carn, (Transcript, pages 45 to 47), in explanation of the nature of this new approach, or as it was described, `change of tack', was that it was clear to him that an acceptable outcome, from the company's perspective, would be that the applicant and Mr. Selva resigned their employment. In this context, I am satisfied that there had been discussions between the respondent's employees, Mr. Shaw, Mr. Miller and Mr. Carn as to the options available to the respondent and the outcome preferred by the respondent. I am also satisfied on balance that the outcome preferred by the respondent was that of obtaining the resignation of the applicant and Mr. Selva. This is confirmed by Mr. Carn in cross-examination when he was asked about the circumstances of the resignation and the following exchange occurred:

(Transcript - pages 46.30 - 47.10)

Because I suggest to you that there where you use the word issue, you really meant - you were going to the levels of internal tension to provide a resolution to the issue as a whole? --- Yes, yes, assist in resolving the whole issue.

Yes the whole issue --- Yes.

And one of the ways of doing that would be secure the resignation of Mr. Selva and Mr. Harvey, that would be one of the ways of doing it, would not it? --- One of the ways, yes.

Yes. And in fact it ended up being the way in which the issue was resolved, did not it? --- It did.

Yes. And you became aware that it was going to happen by reason of your discussions with Mr. Elston prior to it happening ; is that correct? --- No. I did not become aware of it happening until Mr. Elston went to Mr. Shaw and told him and Mr. Shaw came and told myself and Craig McClelland.

What did he tell you? --- That the two, Harvey and Selva had tendered their resignation through Mr. Elston.

And it was mission accomplished? --- As far as Campbell's were concerned I think.

There is some confusion and it must be said, a degree of conflict, in the evidence of Mr. Carn and Mr. Shaw, as to the extent of discussions between the company and the investigators, during the relevant period of the investigations. Mr. Miller, also a party to discussions with Advent employees, was not called to give evidence. I am satisfied that the applicant has established, on balance of probabilities, that it was the intention of the respondent, through its managers, to utilise the security agents to bring about a resolution of the issue. I am satisfied that the issue to be resolved involved the question of the continued employment of the applicant and progressed to the point where the only matter outstanding was how the cessation of the applicant's employment was to be brought about. There were a number of options discussed between the Advent employees, and the respondent's employees, and one of the options I am satisfied which was discussed was to resolve the situation by obtaining the resignations of the employees concerned.

Whilst the evidence of Mr. Shaw was that the brief which was given to the security company was a brief for the purpose of investigating the theft and to report upon the theft, it is apparent from the evidence of Mr. Carn, that at some point in the process of investigation, the focus turned from investigation of the theft to achieving an outcome in relation to the persons who were seen to be responsible for the theft. It is apparent from his evidence that he and his colleague, after briefing from management, approached the task of investigation, having identified the applicant and Mr. Selva as `the suspects'.

I am satisfied that by the time the applicant and Mr. Selva returned to the workplace on the afternoon of Monday 12 August, 1996 they were already the subject of allegation as to their involvement in the theft. It is apparent, from the evidence of Mr. Shaw, that there was already a view formed by the respondent as to the applicant's involvement in the theft and that view was confirmed in their minds in circumstances where the applicant and Mr. Selva lied about their presence in the work area where the theft had taken place. Mr. Miller was not called to give evidence in these proceedings, either as to the initial interview with Mr. Harvey and Mr. Selva, nor as to the brief or riding instructions given to the security agents. The applicant and Mr. Selva were the subject of an ongoing investigation into their conduct and they remained in the workplace whilst external investigators proceeded to interview their colleagues and discuss with them allegations against the applicant and Mr. Selva. The applicant was the subject of accusation and innuendo at the time when the issue of his response to the allegations against him was required to make a decision about his future with the respondent.

I am also satisfied that the respondent by its agents, Advent, utilised the local union delegate, Mr. Elston, as a conduit of information to the applicant and Mr. Selva. No direct information was provided to either person against whom allegations of theft were being made. All information they received was via the auspices of Mr. Elston. He, in turn, received limited information about the investigations and the possible consequences for the applicant.

Mr. Elston's evidence, which I accept, is that he was told by Mr. Carn, of Advent, that it would be best for the applicant if he resigned and that if he did so, he, Mr. Carn, would ensure that the matter was taken no further and that the police were not involved. This information was relayed to the applicant and Mr. Selva, by Mr. Elston. This is consistent with the evidence of Mr. Carn as to the desired outcome discussed earlier herein.

I do not accept the respondent's contention that in the circumstances the applicant made a decision to resign which was uninfluenced by the pressures to which he was being subjected by the respondent, both directly and indirectly or by its agents. The allegations against the applicant's conduct, the method used by the respondent to investigate and progress the issue and the circumstances of the resignation were inextricably linked. The critical action of the respondent in this proceeding was undertaken by its agent, Advent, when it purposefully sought to resolve the situation in the workplace by obtaining the resignation of the applicant and Mr. Selva.

Nor do I accept that the decision of the applicant was made principally as a result of an incorrect belief that his financial entitlements would be reduced if his employment was terminated. In any event it is clear that both Mr. Elston and the applicant had a belief that the alternative to resignation was dismissal. This is apparent from their evidence as to their belief as to the consequences for the financial payments if the applicant did not resign but was dismissed. Whilst I accept that the financial considerations and the incorrect information he had received in that regard weighed strongly on the applicant's mind when making the decision, nevertheless it was a decision which he would not have made, but for the allegations against him being made in the workplace. It is clear that the applicant resigned as a result of the conclusions which had apparently been drawn as to his guilt by the respondent and its agents, and in the context of a consideration of those conclusions. This is apparent from the evidence of the statements made by Mr. Miller in addressing the applicant and Mr. Selva as to their conduct after the resignations had been written out.

I do not accept that the statements made by Mr. Shaw to the applicant, at the time of the resignation, that the applicant confirm he was not being forced to resign and the request that he confirm he was resigning voluntarily, were anything more than self serving actions on the part of the respondent, mindful of its obligations and liabilities under the Act. These matters do not affect my finding as to the initiative for the termination being that of the respondent, having regard to the circumstances and in particular having regard to the evidence of Mr. Elston, that the applicant continued to protest his innocence as to what was being said against him and protested that he was being forced to resign at the time of the resignation and in the presence of Mr. Shaw and Mr. Miller. My view in this regard is fortified by the evidence that the applicant telephoned Mr. Shaw on the following Monday informing him that he felt he had been wrongly treated and seeking to revoke the resignation. He was informed by Mr. Shaw that he would get back to him. Mr. Shaw did not deny that the conversation took place. No further contact occurred. The relevant notice periods appear to have been accorded, and this conduct on the part of the respondent could not of itself constitute initiative for termination of employment, in the sense which was considered by Moore J in Grout v Gunnedah Shire Council (1995) 62 IR 150. However it is further indicia of the circumstances of the termination of employment and the proper characterisation of the termination as being one at the initiative of the employer.

For the reasons set out herein, I am satisfied that there was a termination of the applicant's employment at the initiative of the employer, of the type contemplated by s170EA of the Act. The Court has jurisdiction to hear and determine the application.

I turn now to consider the substantive matters in this proceeding. It is for the respondent to establish that it had valid reason for the termination of the employment of the applicant.

Valid Reason

The applicant denied any involvement in the theft of the angle grinder. Mr. Selva was called to give evidence in the proceedings and he denied any knowledge of the applicant's involvement in the theft and denied any involvement on his own part. His evidence was that he entered the work area at the invitation of the applicant and attended upon the cabinet which was already open. His evidence was that he did not see the applicant with the angle grinder and that he understood the applicant to have been attempting to secure the unlocked cupboard. The applicant's evidence was that he noticed the lock on the cupboard had not been properly secured and in attempting to secure the lock with the use of force, damaged the welding to which it was attached, making it impossible to lock the cabinet. Mr. Selva's evidence confirms the applicant's explanation of events.

Notes were made by the Advent employees of the interviews with employees of the respondent. Mr. Carn's evidence was that during the course of the investigation he reported upon its progress and information obtained to the respondent's managers. In a report, provided to the respondent days after the company concluded its activities in the workplace, Advent formally confirmed its investigations, conclusions and the outcome of its activities in the workplace. The report states:

It appears that sometime following last smoko between 10.15 and 11.00pm two staff, Gerard Harvey and Anthony Selva went into the contractors area near the glass line where they obtained a hammer and cold chisel from a tool box which was then used to smash the lock off the tool cabinet.

The report then provided the respondent with the following account of information from an employee:

...was working in the retort area and stated that he saw the two approaching the area. He was reluctant to provide further details, however, he had conversations with other people where he detailed what he had seen including the fact that he observed both persons at the tool cabinet and heard the lock being smashed off.

I am satisfied that this information was in the respondent's knowledge during the course of the investigation and is that which was relied upon by the respondent to found the allegations as to the applicant's conduct. No evidence was called from the person referred to in the report who was alleged to have told others that he saw the applicant and Mr. Selva engaged in such conduct. Mr. Selva's explanation and evidence, later accepted by the respondent when it reinstated him to the employment, was that he was called into the area by Mr. Harvey. This is inconsistent with the version in the report which states that both men had been seen approaching the area. No evidence was called from the person who reported observing the two employees, to contradict that of Mr. Selva. The notes attached to the report of interviews with various persons do not support the conclusion which was drawn in the report and nor do the notes of the conversation with the person who reported the information he had received as to observations made of the applicant and Mr. Selva. No evidence was called from any person to support the interpretation of the conduct alleged against the applicant. In contrast, Mr. Selva's evidence was consistent with the applicant's explanation, that he was attempting to secure the lock when it broke.

There are two aspects of the applicant's conduct to which the respondent refers in justifying its conclusion that it had valid reason for the termination of the employment and that its decision was sound, defensible and well founded, in the sense discussed by Northrop J in Selvachandran v Peteron Plastics (1995) 62 IR 371, and having regard to the approach taken by von Doussa J in Sangwin v Imogen Pty Ltd (unreported, IRCA, von Doussa J, 8 March 1996).

First the respondent refers to the fact that neither the applicant nor Mr. Selva, upon meeting an acting supervisor after failing to lock the cabinet, made any mention of the open tool cabinet nor of the attempts to fix the lock. The regular supervisor had left the workplace earlier that evening. The applicant's evidence of the conversation identified it as a brief conversation confined to a direction to provide assistance to another employee. I accept that the failure to draw the acting supervisors attention to the broken lock was conduct apparently inconsistent with the concern expressed by the applicant shortly before in trying to secure the cabinet. However I accept the applicant's evidence that he was troubled by the fact that he had broken the lock attached to the cabinet.

The second matter referred to by the respondent is the applicant's denial to the respondent that he had been in the work area where the cabinet was located or having touched the cabinet at all and the fact that these denials were false and known by the applicant to be false at the time they were made. On the basis of these denials the respondent acted to proceed with the investigation by the security company. As to the failure of the applicant to tell the respondent the truth, as to his presence in the area in question, the applicant says that he had been made aware on the Monday morning that he and Mr. Selva were both being blamed for the theft of the angle grinder and that consequently they were afraid to admit to having been present in the area.

It is the respondent's contention that the applicant's story would have been more credible in circumstances where it had been volunteered by him immediately upon being questioned as to his activities. However, the evidence of the applicant was that, by the time he arrived at work on Monday, he was aware that everybody knew that he was being accused of stealing the angle grinder. His evidence was further that upon entering Mr. Shaw's office he was confronted immediately with the question, " Did you take the angle grinder? " to which he answered that did not, as did Mr. Selva. The applicant's evidence and that of Mr. Selva is that Mr. Shaw or Mr. Warren said: "we've got two witnesses ". I accept the applicant's explanation that, in the circumstances of the rumours and accusations being made, both he and Mr. Selva were afraid that if they admitted they were in the room, and tried to explain the circumstances, they would not be believed. This explanation was also given by Mr. Selva. The applicant's evidence was that this view of the situation was confirmed by the manner in which Mr. Shaw approached them in asking the initial questions.

Having regard to the information that they had initially received as to the applicant's presence at the location, together with the failure of the applicant to provide an innocent explanation as to his conduct, I am satisfied that the respondent concluded at that point in time that the applicant and Mr. Selva were responsible for the theft.

I am not satisfied that the respondent has established that it had valid reason for the termination of the applicant's employment. I am not satisfied that the respondent has established on balance that the applicant was responsible for the theft of the angle grinder. Nor am I satisfied that the reason for the termination of the employment was based upon a belief as to the conduct of the applicant which was sound, defensible or well founded in the sense discussed by Northrop J in Selvachandran.

The applicant was a full time employee who had been employed by the respondent in a cleaning position for 8 years prior to the incident. The allegation made as to the applicant's conduct is of a serious nature with consequences for the applicant in a number of respects and consequently the evidentiary foundation for such a reason must be strong and sound. The appropriateness of the application of the evidentiary requirement in Briginshaw v Briginshaw (1938) 60 CLR 336 was discussed by Moore J in Reader v Wyndham Lodge Nursing Home Inc. (unreported, IRCA, Moore J, 26 March 1997) where his Honour stated:

(page 51)

The allegation that a registered nurse of many years experience assaulted an elderly dementia patient in the care of the nurse is a very serious one. It requires the employer to establish the evidentiary foundation of the allegation to a degree that leaves me sufficiently satisfied that it occurred as alleged having regard to the gravity of the allegation: see Briginshaw v Briginshaw.

In Perkins v Grace Worldwide (Australia) Pty Ltd (unreported, IRCA, Moore J, 4 September 1996) his honour quoted an extract from Briginshaw which in my view identifies the approach to be taken to the evidence in the present proceedings. His Honour stated:

(page 5)

In relation to Abott, it is necessary to bear in mind the cautionary words of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. Some of what was said by Dixon J at 362 bears repeating, and I quote:

It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the `reasonable satisfaction' of the tribunal. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect references.

In my view a similar approach ought be taken in these proceedings having regard to the severity of the allegations against the applicant. That is, an allegation of theft of property from the employer's premises by an employee of 8 years standing with a good employment record.

Having regard to the evidence before the Court, including the discrepancies in the reports and statements, and the lack of direct evidence in these proceedings from any person as to their observations of the applicant and Mr. Selva at the cabinet on the evening in question and the explanations provided by the applicant and Mr. Selva, I am not sufficiently so satisfied. I am not satisfied there is sufficient evidence for the Court to find on balance that the applicant was involved in the theft of the angle grinder from the cupboard.

I am conscious that, on one view of the authorities in this Court, it is necessary only for the Court to be satisfied that the respondent acted reasonably after having conducted a full and proper investigation into the circumstances. See in this regard the decision of von Doussa J in Sangwin v Imogen Pty Ltd (unreported, IRCA, Von Doussa J, 8 March 1996). However in this case, even applying the approach in Sangwin, I am not satisfied, having regard to the failure of the respondent to investigate what were apparent inconsistencies in the information being given to them by interviewees, as discussed earlier herein at page 11, together with the fact that no information as to actual allegations was ever given to the applicant, that a full, proper or reasonable investigation had taken place, in the sense contemplated in that decision.

The respondent utilised the services of a private investigation company to conduct interviews with employees as to the stolen item. The employees of that company interviewed a number of employees and according to Mr. Carn of the company, reported back to the respondent as to those interviews. No interviews took place with either the applicant or the other employee, also accused of involvement in the theft of the angle grinder. Nor was there any interview conducted with Mr. Gregory, the owner of the angle grinder, who had initially reported it stolen. Despite an initial interview with the applicant and Mr. Selva, where they were asked about their involvement in the theft and subsequently about their presence at the site of the theft, no information or material was provided to them about the specific allegations being made. The respondent and its agents had knowledge of various allegations as to the applicant's conduct and upon the basis of those allegations formed a view as to the applicant's involvement in the theft. None of the information the respondent had received was put to the applicant and nor was it in any specific terms provided to Mr. Elston, the local delegate, despite the respondent's agents utilising him as a conduit for communication between the parties.

For all of the above reasons I am not satisfied that the respondent had valid reason for the termination of the applicant's employment. I turn now to consider the operation of s170DC of the Act.

Section 170DC

At the time of the termination of the employment on August, 1996, the applicant had no opportunity to respond in any manner to the specific allegations made against him and in the circumstances was accorded no opportunity to be heard in relation to the allegations being made by the respondent as to his conduct. There has been a contravention of s170DC of the Act.

Remedy

The applicant seeks an order for reinstatement and remuneration lost as a consequence of the termination of the employment. The respondent opposes any order for reinstatement, contending that it would be impracticable. I am not satisfied that there is an evidentiary basis for a finding that reinstatement of the applicant would be impracticable. This is particularly so in view of the evidence as to the reinstatement of the other employee, and the lack of any discernible difference on the evidence before me as to their circumstances in the employment.

The evidence in these proceedings is that the other employee accused of the theft, Mr. Selva, who also provided his resignation on 14 August, 1996, was reinstated by the respondent. The evidence was that he was reinstated on the basis of his agreeing to assist the respondent with its inquiries into the alleged theft and the fact that the respondent had recently become aware that Mr. Selva had only entered the room after Mr. Harvey. Whilst it is not surprising that the other employee agreed to participate in an investigation in return for being reinstated to the employment, nothing which was revealed as a consequence of that investigation and provided to the Court in these proceedings, identified any matter which would mitigate against the applicant being reinstated. It was difficult to appreciate how, on the basis of the information put before the Court, that is, the statutory declaration of Mr. Selva, there is any basis to found the applicant being refused the principal remedy under the Act. The only conduct of the applicant which differs from that of Mr. Selva is that it was that the applicant had entered the room before Mr. Selva and that it was the applicant in the presence of Mr. Selva who had broken the lock in the course of attempting to lock the cupboard.

Whilst the decision of the respondent to reinstate Mr. Selva is not determinative of the issue of impracticability as between this applicant and the respondent, the circumstances of the termination of the employment of both men is so inextricably linked that, in the absence of other evidence touching solely the circumstances of the applicant, there is no basis for finding that an order for reinstatement is impracticable.

An order for remuneration lost will also be made. I am satisfied that the remuneration lost by the applicant as a consequence of the termination of the employment is that which would have been earned in the period between the date of filing the application in the Commission and the date of the reinstatement less any income received by the applicant in the relevant period.

The Orders of the Court will be:

1. Pursuant to Subsection 170EE(1)(a)(i) of the Workplace Relations Act 1996, the respondent on Monday 6 October, 1997, reinstate the applicant by reappointing him to the position he occupied immediately before the termination of his employment.

   2. Pursuant to Subsection 170EE(1)(b)(i) of the Workplace Relations Act, 1996, the employment of the applicant by the respondent be treated for all purposes as having been continuous between the date of the termination of employment and the date of reappointment made in accordance with Order 1 herein.

   3. Pursuant to Subsection 170EE(1)(b)(ii) of the Workplace Relations Act, 1996, the respondent pay to the applicant, within 21 days of the date of this Order, remuneration lost by the applicant as a consequence of the termination of the employment, between 14 October, 1996 and the date of reappointment pursuant to Order 1 herein.

   4. The parties have leave to apply to the Court upon 24 hours notice in the event that agreement cannot be reached in relation to the calculation of the amount of lost remuneration ordered pursuant to Order 3 herein.