Ms Nicola Jones v Zamel's Jewellers
[2010] FWA 6227
•16 AUGUST 2010
Note: An appeal pursuant to s.604 (C2010/563) was lodged against this decision - refer to Full Bench decision dated 13 December 2010 [[2010] FWAFB 9337] for result of appeal.
[2010] FWA 6227 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Nicola Jones
v
Zamel’s Jewellers
(U2010/8189)
COMMISSIONER CLOGHAN | PERTH, 16 AUGUST 2010 |
Unfair dismissal.
[1] On 22 April 2010, Ms Nicola Jones (“the Applicant”) made application to Fair Work Australia alleging that she was unfairly dismissed from her employment at Zamel’s Jewellers (“the Employer”) on 12 April 2010.
[2] Ms Jones has made the application pursuant to s.394 of the Fair Work Act 2009 (“the Act”). Ms Jones is not seeking reinstatement as a remedy for her alleged unfair dismissal but compensation in lieu of reinstatement.
[3] Ms Jones’ application was unable to be resolved at conciliation and subsequently referred to me for arbitration. Arbitration took place on 21 July 2010. The Applicant gave evidence. Ms Tamisha Burton, Ms Wendy Maben, Ms Fran Whitelaw and Ms Melanie McClave gave evidence for the Employer.
[4] To assist the proceedings, both parties provided documentation to the Tribunal which was incorporated into proceedings. Having received this material, heard submissions, oral evidence and provided with further exhibits, I reserved my Decision. In reaching this Decision, I have considered all the material provided to the Tribunal.
ADHERENCE TO DIRECTIONS
[5] Following a conference on 14 June 2010, Directions were issued on 17 June 2010.
[6] Both parties were required to file and serve documents on which they intend to rely upon, by 4:00pm Thursday 24 June 2010. Neither party complied with the direction.
[7] The Applicant was required to file and serve her statement of facts, witness statements (if any) and other documentary material to be relied upon by 1 July 2010. The Applicant provided the material to the Tribunal and the Employer on 5 July 2010. The delay was following a period of hospitalisation, and a request for an extension of time to my Associate.
[8] The Respondent Employer was required to respond to the Applicant’s statement of facts, serve its statement of facts, witness statements (if any) and any other documentary material by 8 July 2010. Given the Applicant’s delay, it was reasonable for the Employer to seek to extend this deadline to 12 July 2010. The Respondent Employer provided the material to the Applicant and the Tribunal at 3:19pm on 20 July 2010 -- the day before the hearing. Further, on the day of the hearing, the Employer, through Ms Wendy Maben, tabled for the first time, a document which is purported to be a record of interview with the Applicant, which led to her suspension, pending an investigation. The document had not been provided to either the Applicant or the Tribunal, prior to the proceedings.
[9] The Employer is one of a larger group of employers. The Group employs a total of 1,100 employees and has access, through an employers’ organisation, to legal advice.
[10] Without hesitation, it has to be said that the expertise and resources available to the Employer are in excess of the Applicant. Notwithstanding this, the Employer took a casual, if not, dismissive attitude to compliance with Directions. While the Applicant, who was not represented, did not complain, it would not have been unreasonable for her to have expressed her displeasure at the Employer’s response to Directions.
BACKGROUND
[11] Ms Jones commenced employment as a casual employee with Zamel’s Jewellers in October 2005.
[12] At the time of the events that led to her termination of employment, Ms Jones was substantively the Assistant Manager of the Fremantle store and its Acting Manager. Ms Jones was appointed Acting Manager in December 2009.
[13] On 19 March 2010, the Applicant was advised by Ms Wendy Maben, Regional Manager that she would no longer remain as Acting Manager and would revert to her substantive position of Assistant Manager. In the words of the Applicant, she was told she “couldn’t handle it [Store Manager]” 1 and would remain Assistant Manager. Ms Jones described this discussion with Ms Maben as “heated”2 saying that she had been “blackmailed, bribed, stabbed in the back and everything else”3. Subsequent to the discussion, Ms Jones made a formal complaint to Ms McClave regarding Ms Maben.
[14] On Tuesday 23 March 2010, Ms Burton commenced as the Fremantle Store Manager.
[15] On Friday 9 April 2010, Ms Jones was suspended by Ms Maben, “pending a further investigation” 4.
[16] On Monday 12 April 2010, Ms Maben signed a letter to Ms Jones saying that the investigation is now complete and a decision has been made to terminate her employment. While the correspondence does not say why the Applicant’s employment was terminated, it does say that, “you will also be required to pay for items in full” 5. Attached to the correspondence was a Termination of Employment form advising that notice and date of termination is 12 April 2010.
[17] On 15 April 2010, Ms McClave forwarded to Ms Jones, the following letter without its felicitations:
“After our discussion at the beginning of the week regarding the clarification of your termination, this letter is to confirm that your employment was terminated for the theft of goods from the Fremantle store. The investigation process found there was sufficient evidence to support the allegation of theft and the decision had been made to terminate your employment for Gross Misconduct.
The investigation found that you had
• On several occasions taken goods from the store without making payment for the goods. These items included a ring, and other Amorica products.
In-line with company policy, all evidence and witness statements taken will now be forwarded to the local authorities, with instructions to commence legal proceedings.”
RELEVANT MATTERS FOR CONSIDERATION
Applicant’s Case
[18] On or about 16 March 2010, Ms Jones’ partner’s brother sought to purchase a ring for his girlfriend at the Fremantle store. According to the Applicant, her partner’s brother went to pay for the ring by Eftpos card. However, Ms Jones stated words to the effect, “I will pay by cash...and you give it back to me” 6. Ms Jones’ partner’s brother and girlfriend left the store with the ring. Further, Ms Jones alleges that she telephoned Ms Maben and requested that when she was next in the Fremantle store, could she “process” the sale of the ring, as a staff purchase and other items7.
[19] Company policy is that, on no account is stock to leave a store without being paid for and receipted in the cash register.
[20] The next occasion when Ms Maben came to the Fremantle store was Friday 19 March 2010, the day she advised Ms Jones of her reverting to Assistant Manager and, as already mentioned, the heated discussion took place. The sale of the ring was not put through the cash register before Ms Maben left the store. The Applicant contends that she telephoned Ms Maben and requested that the staff purchase be processed by Ms Adazsko, another employee. According to the Applicant, Ms Maben replied, “yes, no problems” 8.
[21] On the following day, Saturday 20 March 2010, Ms Jones asked Ms Adazsko to put through her sale at the same time she was processing another staff member’s purchase, by credit card. Ms Jones gave Ms Adazsko $80 cash 9.
[22] Ms Jones did not receive a receipt for the ring, and assumed it was recorded on the other staff member’s receipt 10.
[23] Ms Jones left work early on 20 March 2010. On the following Monday, Ms Jones had a doctor’s appointment and proceeded on four days’ sick leave.
[24] While on sick leave, Ms Jones alleges that she received a telephone call from Ms Radinki to say that the cash register was $80 over. The Applicant advised her, “just write it down, ‘till is over $80 in cash’, we’ll sort it out when Nicola gets back” 11. On returning to work, Ms Radinki raised the issue of payment for the ring with Ms Jones in the context of stock discrepancies. Ms Jones agreed the ring, subject to the discrepancy, was the one her partner’s brother had acquired. The Applicant’s explanation for why it was still recorded as unsold, was because it had not gone through the computer system (Zbrowse). The matter was left at that12.
[25] On Thursday 1 April 2010, the Applicant alleges that she telephoned Ms Maben seeking her authorisation to take three items (padlock bracelet, Tinkerbelle charm and silver snake chain) home with her as Easter presents and make payment on 15 April 2010 when she received her normal pay. Ms Jones conceded that, it was beyond Company policy, but after persisting, Ms Maben agreed. Ms Jones took the three items home and placed the identity tags of the items in a clear plastic bag on the back wall of the office 13.
[26] On Thursday 8 April 2010, the Applicant had a day’s leave to move house. On that day, she received a telephone call at 5:15pm from Ms Burton, who by now was the Manager of the Fremantle store. The telephone message was to say that Ms Maben was visiting the store and, “wants copies of everyone’s receipts over the last three months for staff purchases” 14. The Applicant advised that she would do her best, but was moving house.
[27] On the following day, Ms Jones met with Ms Maben and Ms Francis Whitelaw, Manager, Zamel’s Jewellers, Garden City. Ms Jones was asked to provide a receipt for the ring acquired by her partner’s brother -- she could not. Ms Jones was questioned regarding the other items. The Applicant referred to her telephone calls with Ms Maben. According to the Applicant, “she denied all of it” 15.
[28] Ms Jones was advised, “we have to suspend your employment until further notice, until you can produce a receipt” 16.
[29] The Applicant was required to hand over the shop keys and was escorted out of the store. Subsequently, Ms Jones received the correspondence from Ms Maben and Ms McClave outlined in paragraphs [16] and [17].
[30] Ms Jones asserts that all items have been paid for as she signed “yes” on 12 April 2010 to “Take deductions from final payroll” on the Pay Preparation Advice.
Employer’s Case
[31] Ms McClave, for the Employer, commenced its case by stating:
“It’s the company policy to not negotiate on acts of theft. It’s the one area we could send the wrong message out to the stores and our staff. From our perspective, we believe we looked into it enough to prove the case that the items were taken” 17.
[32] The dates and times regarding the events, while at some times confusing, are not in dispute between the Applicant and Employer.
[33] With regard to the ring acquired by the Applicant’s partner’s brother, the Employer submitted that the issue had been highlighted to Ms Jones by another employee in the Fremantle store on several occasions but payment had not been put through the cash register. This situation was brought to the attention of the Store Manager, Ms Burton. Ms Burton escalated the issue to the Regional Manager, Ms Maben 18.
[34] Ms McClave submitted for the Employer that a reconciliation had been made between sales transactions and stock, and no payment for the ring could be identified. Given the knowledge that Ms Jones’ partner’s brother had acquired the ring, Ms Jones was requested to provide a receipt. On not being able to provide a receipt, it was concluded that Ms Jones had taken the ring without making payment 19.
[35] Importantly, Ms McClave stated that there had been no over-banking, “in fact there was an 80-dollar discrepancy” 20.
[36] The first witness for the Applicant was Ms Burton, who was appointed the Fremantle Store Manager on 23 March 2010. Ms Burton gave evidence that Ms Elizabeth Radinki advised her that following a stock discrepancy report, “Nicola [Ms Jones] claims she has paid for it [the ring]” 21.
[37] Ms Burton examined the daily sales transactions and could find no payment. Ms Burton reported the matter to her Regional Manager, Ms Maben.
[38] Sometime after commencing as the Manager, Ms Burton gave evidence:
“I also noticed that Nicola had taken 3 other items from the store without paying for them. On the office wall board a bag with 2 stock PLU tickets only, had been pinned on the wall and stated for Nicola. Both items of stock had been removed and no staff sale was entered in Nicola’s name for the items. Also on the wall was another bag, which contained a customer’s receipt for a silver chain, that had been returned, but no stock item was in the bag with it. Stock take variances are showing for all these items.” 22
[39] While not in her written witness statement, Ms Burton gave oral evidence to suggest that the bags were concealed.
[40] Ms Burton states, in her written witness statement, that she provided this information to her Regional Manager on 7 April 2010. In examination in chief, she advised that she noticed the 3 clear plastic bags on 8 April 2010 23.
[41] On being asked by Ms Jones, why Ms Burton did not ask her what had happened, she advised:
“...I decided on my behalf that I would act according to company policy before approaching you. The reason why -- I don’t have to say why I didn’t approach you, but I just stuck to my guns with company policy that it’s a serious matter and that I need to advise my regional, and that’s what I did.” 24
[42] Ms Burton gave further evidence, “there had been many circumstances of this happening” 25 and “...because if I had approached you, you could have possibly denied - returned the items when I was on my rostered day off. I followed company policy.”26
[43] Ms Elizabeth Radinki was not called as a witness by the Employer.
[44] The next witness for the Employer was Ms Maben, WA Regional Manager.
[45] Ms Maben gave evidence that she was approached on 7 April 2010 by Ms Burton who advised her that, “she believed Nicola had taken a number of items from the store that she had not paid for” 27. Further, “she showed me the two bags that had Nicola’s name...”28. Ms Burton stated to Ms Maben that she had not or would not approve “any of this”.
[46] Ms Maben contacted Ms Whitelaw to be a witness at a meeting the following day (8 April 2010) with Ms Jones.
[47] In her witness statement, Ms Maben states that at the meeting on 8 April 2010, Ms Jones stated that she had paid for the ring and the transaction as registered. Ms Jones advised she could not produce a receipt, and had no explanation for the stock discrepancy.
[48] With regard to the other items, Ms Jones admitted she had taken them but could not produce receipts. Ms Jones referred to a telephone conversation with Ms Maben who denied that such a conversation had taken place.
[49] Ms Maben informed Ms Jones that she was suspended from her duties “pending further investigation in relation to the items she admitted to have taken” 29.
[50] On 12 April 2010, Ms Maben subsequently was authorised to summarily dismiss Ms Jones for gross misconduct (theft) 30.
[51] In oral evidence, it was confirmed that the meeting took place on 9 April 2010 and not 8 April 2010. Second, Ms Maben only became aware from Ms Burton of the further three items, on the morning of 9 April 2010 prior to her meeting with Ms Jones, and not 7 April 2010.
[52] The next witness for the Employer was Ms Frances Whitelaw, Manager, Garden City. Ms Whitelaw’s witness statement is dated 16 July 2010 which is the same date as Ms Maben. For the benefit of this Decision, I will set out Ms Whitelaw’s recollection of the discussion between Ms Maben and Ms Jones and compare it with Ms Maben’s recollection.
Ms Whitelaw
“Firstly Wendy asked Nicola about the ring she had given to her boyfriend’s brother and girlfriend. She confirmed she had taken the ring and given it to them. She then said that she had paid for the ring and entered the transaction on the Crazy Sales day. Wendy then asked her to produce the till receipt, to which she stated she couldn’t find it at home. Wendy then asked if she had put it through the till like she stated, then how come it was still showing as being in stock. Nicola did not answer this question.”
Ms Maben
“Firstly I asked Nicola about the ring she had given to her boyfriend’s brother and girlfriend. She confirmed she had taken the ring and given it to them. She then said that she had paid for the for the ring and entered the transaction on the Crazy Sales day. I then asked her to produce the till receipt, to which she stated she couldn’t find it at home. I then asked if she had put it through the till like she stated, then how come it was still showing as being in stock. Nicola did not answer this question.”
Ms Whitelaw
“Wendy then asked Nicola about the plastic bag which contained a customer’s receipt in it and was marked with her name on it. Nicola stated that the receipt was not hers but a customer’s and the customer had returned the item. She then stated she had liked the item and decided to purchase it instead herself. When asked for a receipt on this item, she stated she didn’t have one this either (sic). She then said she had lost it.”
Ms Maben
“I then asked Nicola about the plastic bag which contained a customer’s receipt in it and was marked with her name on it. Nicola stated that the receipt was not hers but a customer’s and the customer had returned the item. She then stated she had liked the item and decided to purchase it instead herself. When asked for a receipt on this item, she stated she didn’t have one for this either. She then said she had lost it.”
Ms Whitelaw
“Wendy then asked Nicola about the other bag with two PLU tickets in it for a Charm & Gold Bracelet. She replied she had taken those goods and was going to pay for them sometime, but had not gotten around to it yet. Wendy then asked her how long ago she had taken the goods, to which she was very vague about the date and could only say “maybe a week or so ago”. Wendy then asked if she could produce a receipt for these items as well and again she stated she couldn’t.”
Ms Maben
“I then asked Nicola about the other bag with two PLU tickets in it for a Charm & Gold Bracelet. She replied she had taken those goods and was going to pay for them sometime, but had not gotten around to it yet. Wendy (?) then asked her how long ago she had taken the goods, to which she was very vague about the date and could only say “maybe a week or so ago”. I again asked her if she could produce a receipt for these items as well and again she stated she couldn’t.” (my emphasis)
Ms Whitelaw
“Wendy then asked if she had anything further to add regarding these items and also asked if she could locate the receipts for any of the items. She again said she couldn’t provide any receipts, but she then said that she had phoned Wendy and asked permission to take the Charm and Gold Bracelet. Wendy then stated she had never had such a conversation with her and asked when this was supposed to have taken place. Nicola could not provide a time and was vague as to when this had supposed to have happened.”
Ms Maben
“I then asked if she had anything further to add regarding these items and also asked if she could locate the receipts for any of the items. She again said she couldn’t provide any receipts, but she then said that she had phoned me and asked permission to take the Charm and Gold Bracelet. I stated she had never had such a conversation with me and asked when this was supposed to have taken place. Nicola could not provide a time and was vague as to when this had supposed to have happened.”
Ms Whitelaw
“Wendy then informed Nicola that she was suspending her from duties pending further investigation in to the items she had admitted to have taken. Wendy then proceeded to escort Nicola off the site.”
Ms Maben
“I then informed Nicola that she was suspended from her duties pending further investigation in to the items she had admitted to have taken. I then proceeded to escort Nicola off the site and advised her to look for the receipts.”
[53] It is almost inconceivable that these witnesses would submit identical statements regarding such a crucial interview concerning the serious allegation of theft. I will give both witness statements appropriate weight.
[54] While it may be a minor point, Ms Whitelaw admitted that her witness statement was incorrect and it was her, not Ms Maben, who escorted Ms Jones back to the store to collect her personal belongings.
INVESTIGATIONS
[55] The Employer’s Policy and Procedures (“Policy and Procedures”) were provided to the tribunal during the hearing. For the purposes of this application and Decision, the relevant parts are:
“2) PROCEDURE
2.1 Preparation
The manager must deal with serious disciplinary issues as soon as they are observed or reported. This includes removing the employee from the workplace IMMEDIATELY.
By avoiding or delaying action, the disciplinary process and any subsequent results, may become invalid or illegal.
2.1.1 The manager must notify the Chief Financial Officer as soon as a serious incident is reported. The Chief Financial Officer will ensure that procedural fairness is applied and provide appropriate support to the manager.
2.1.2 The manager must investigate the incident THOROUGHLY before making a decision to discipline/dismiss an employee. This will minimise unfounded and hurtful accusations.
In all cases where a serious incident is alleged or reported, the manager should suspend the employee’s employment until the investigation is completed and a decision is reached.
2.2 Suspension of Employment
...
2.3 Investigation
2.3.1 The key issues to investigate an incident are:
• Do not presume guilt.
• The process must be kept confidential and low profile by limiting it to those who “need to know”, and who have particular skills that will be valuable in the investigation.
• Proceed with urgency as the employee is on suspension and will desire a speedy resolution.
All information resulting from the investigation and decision made after the investigation are confidential on a “need to know” basis. Such information includes witness statements, photographs, medical evidence and investigation records.
2.3.2 In carrying out the investigation, the manager must:
• Select those who must be part of the investigation; this should include someone impartial/unknown to the person/s being investigated. (my emphasis)
• Identify key witnesses.
• Obtain statements of the incident (who, how, why, when, what, where) - ensure where applicable that language needs or other issues are addressed when obtaining this information. (my emphasis)
• Explore any RELEVANT background information (may include training records, performance evaluation).
The manager must not indicate or pre-empt the outcome of the investigation to ANY party, including the employee, during the investigation.
2.4 Employee Witness
2.4.1 The employee must be asked if he or should would like a witness to be present. (my emphasis) This is an essential action, it ensures the employee is given support if required, and it protects the company from possible legal implications on procedural fairness. The timeframe for organising a witness must be reasonable - e.g. by the next business day - otherwise the company will suggest an alternative witness.
2.5 Dismissal
Before any decision is made to summarily dismiss an employee, the manager MUST get authorisation from the Chief Financial Officer, who will seek legal advise (sic) as required.
2.5.1 Managers recommend summary dismissal only if on the balance of probability the employee did what was alleged to have been done. If the facts are not clear or there are mitigating circumstances, a first and final warning should be issued. (my emphasis)
2.5.2 The Chief Financial Officer must be aware of all facts concerning the incident and the investigation and be satisfied that all “due process” requirements are met before recommending summary dismissal. (my emphasis)
2.5.3 After approval from the Chief Financial Officer, the manager must then explain the results of the investigation and advise the employee of the decision to terminate their employment. This must include advising the employee of the right to appeal against the decision (see below) and that there is no payment in lieu of notice. (my emphasis)
2.5.4 The manager must then complete the Termination of Employment forms, ask the employee to verify his/her address and sign the form.” 31
[56] It is appropriate to compare examining the Policy and Procedures against the evidence.
[57] Ms Maben gave evidence:
“We didn’t take long to investigate. All we really needed to do at that stage was look at the computer and see if those items had been sold and paid for” 32.
[58] In complying with the Policy and Procedures, the Employer had a witness, Ms Whitelaw. However, in the words of Ms McClave, the mandatory aspect of asking Ms Jones whether she would like a witness present, was “overlooked” in this instance 33.
[59] In carrying out the investigation, the Manager (Ms Maben) must select a person who is impartial/unknown to the person being investigated. In this case, Ms Maben chose herself and continued being the investigator when a key issue was whether she had telephone conversations with the person being investigated. It seems incredible that she did not consider that a “conflict of interest” existed, and disqualify herself.
[60] On being asked by myself what records Ms Maben kept of the investigation, she replied, “I didn’t” 34 and then proceeded to say, “I passed all my paperwork that I had, to head office”35. On enquiring on the meaning of “paperwork”, Ms Maben meant her notes of her meeting with Ms Jones36. As for the person who had reminded Ms Jones that she had not paid for the ring, “there was no record. It was just a brief discussion”37. There was no record of the (at least) two discussions with Ms Burton.
[61] Having been told by Ms Burton that she suspected Ms Jones of taking items without paying for them, Ms Maben did not advise Ms Jones of the purpose of the meeting on 9 April 2010 which led to her suspension, and ultimately, her dismissal. In my view, even though Ms Jones advised that she was telephoned by Ms Burton at 5:15pm on the night before the meeting with Ms Maben to have her receipts for staff purchases, it was evidently concealing the true purpose, which was simply put, an allegation of stealing.
[62] The Policy and Procedures set out where the facts are not clear or there are mitigating circumstances -- a first and final warning should be issued. The facts were contested but this appears not to have been considered.
[63] Finally, neither letter to Ms Jones contains advice to the employee that she can appeal against the decision to terminate her employment.
[64] I note that the Chief Financial officer (“CFO”) must be satisfied that “due process” requirements have been met before recommending summary dismissal. If the CFO was aware of all the procedural requirements, I am surprised that such a decision was made. If the CFO had been made aware of the process adopted in relation to the Applicant, he may have arrived at a different decision to that of Ms Jones’ summary dismissal on 12 April 2010.
[65] Finally, I make the observation that Ms Jones was suspended pending an investigation on Friday 9 April 2010. On Monday 12 April 2010, Ms Jones’ employment was terminated. While moving quickly in disciplinary matters is to be encouraged, it should not be at the expense of good procedural fairness as set out in 2.1.1 of the Policy and Procedures document. It seems clear that management did not abide by its own company policy with regard to ensuring its dealings with the Applicant were fair and reasonable.
LEGISLATIVE FRAMEWORK
[66] For the purposes of this Decision, the material parts of the Act are as follows:
• Section 385 - What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
• Section 386 - Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) ...
and
• Section 387 - Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
[67] Ms Jones was dismissed on the Employer’s initiative. The question to be answered is whether the dismissal was harsh, unjust or unreasonable. The objects of the provisions of the Act, when dealing with unfair dismissal, is to balance the needs of business with the needs of employees; in common parlance, ensuring a “fair go all round”.
DISCUSSION
[68] The Employer’s policy that no stock should leave the store until payment has been made is commonsense. However, as illustrated above in paragraphs [58] to [64], policies and procedures are departed from. Cutting policy and procedural “corners” is the way individuals often adapt to their circumstances. It would be exceptional, if not impossible, to find a business which did not depart from its own policy and procedures.
[69] In this hearing, Ms Jones stated consistently that she discussed the matter of requesting items of stock to leave the store without payment with Ms Maben. Ms Maben has consistently said that no conversation took place, and even if such a conversation took place, she would not have breached company policy. Notwithstanding Ms Maben’s absoluteness regarding the policy of not letting the stock leave the store without payment, she took a very different approach with regard to compliance with the policy relating to the disciplinary investigation of Ms Jones.
[70] While I sought and received telephone records from the Employer after the hearing, for a number of reasons, they are not of assistance.
[71] The Employer, in these proceedings, submitted that as the stock was not in the store, had not been paid for, and Ms Jones admitting three items were in her possession, there was a valid reason to terminate her employment. However, the Tribunal has to look at the totality of the evidence, including Ms Jones’ explanation, to reach the conclusion that a valid reason existed to terminate her employment. I am unable to reach such a conclusion.
[72] In the totality of the evidence presented at the hearing, some of the discrete and separate evidence included:
- a number of employees were aware of the conversation between Ms Jones and her partner’s brother regarding the manner in which payment for the ring was to be made;
- the fact that the PLU bags were able to be noticed and had Ms Jones’ name inside them;
- the disputed telephone calls;
- the fact that there was an $80 discrepancy in the cash register, which was the equivalent staff sale price of the ring; and
- an assessment of the reliability and credibility of the witnesses in demonstrating the Employer’s reasons for terminating Ms Jones.
[73] When this evidence is looked at in accumulation, I am not satisfied that there was a valid reason to terminate Ms Jones’ employment.
[74] With regard to the remaining matters which I must take into account, it would be repetitive to address each of the provisions in s.387(b) to (h), where applicable. However, I would make the following observations.
[75] My overall impression was that, from when Ms Maben was told of the circumstances surrounding the ring on 7 April 2010 and the other three (3) items on 9 April 2010, she formed a view that the sooner Ms Jones was dismissed, the better.
[76] Secondly, the fact that the total amount of the four (4) staff purchase items was $188.23, has not influenced my Decision. Importantly, I have given no weight to the Applicant’s submission to the effect of, why would she steal items of such small value, when more valued items were in stock.
[77] Thirdly, in the Employer’s letter of 15 April 2010, it mentions the company policy of forwarding to “local authorities” “all evidence” “with instructions to commence legal proceedings”. Such a process, especially given the business of the Employer, is to be expected and for good reason. However, towards the conclusion of the hearing, Ms McClave advised that the police can request transcript of these proceedings to assist in any prosecution 38. For that reason, the complaint against Ms Jones is in abeyance, and this situation was described by Ms McClave, “...it goes to hearing and she admits that she got the products in there, then we can use that, which is for higher standing”39.
[78] In conclusion, for all the reasons outlined in this Decision, I find that Ms Jones’ termination of employment was harsh, unjust and unreasonable.
LEGISLATIVE FRAMEWORK (continued)
[79] Section 390 states:
(1) Subject to subsection (3), FWA may order a person's reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
CONCLUSION
[80] I am satisfied, for the reasons outlined above, that Ms Jones was dismissed and that she was unfairly dismissed.
[81] I am also satisfied, pursuant to s.390(3)(a) of the Act, that reinstatement is inappropriate.
[82] I am satisfied that an order for compensation, pursuant to s.390(3)(b) is appropriate.
What compensation should Ms Jones receive?
[83] For the reasons outlined above, I have formed the view that Ms Jones intended to continue in her employment with the Employer if it was not for the events of leading up to her dismissal on 12 April 2010 (s.392(c)). Further, I am satisfied from her submission to the Tribunal that since being dismissed, she has been unable to work to mitigate her loss (s.392(d)).
[84] Having taken into account s.392(a), (b) and the fact that Ms Jones has not been in paid employment since her dismissal, I propose to exercise my discretion by making an Order providing compensation equivalent to, foregone wages of 17 weeks, with accrued entitlements, reflecting the period from 12 April 2010 to the date of an Order.
[85] Accordingly, an Order to this effect will be issued.
COMMISSIONER
Appearances:
Ms N Jones, the Applicant.
Ms M McClave on behalf of the Respondent.
Hearing details:
2010:
Perth
21 July
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