Peter Mulhall v Direct Freight (Qld) Pty Ltd T/A Direct Freight Express
[2016] FWC 58
•29 JANUARY 2016
| [2016] FWC 58 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Mulhall
v
Direct Freight (Qld) Pty Ltd T/A Direct Freight Express
(U2015/4348)
COMMISSIONER SIMPSON | BRISBANE, 29 JANUARY 2016 |
Application for relief from unfair dismissal – Termination for serious misconduct - Respondent unable to discharge onus that Applicant engaged in conduct - Compensation awarded.
[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Peter Mulhall (“the Applicant”) who alleges that the termination of his employment with Direct Freight (Qld) Pty Ltd t/a Direct Freight Express (“the Respondent”) was unfair in accordance with the definition contained within s.385 of the Act.
[2] It is not in dispute that the Applicant was employed by the Respondent on a full time permanent basis from 12 June 2012 as a pick-up and delivery driver at the Respondent’s Townsville Depot and his dismissal took effect on 13 March 2015, making his period of employment two years and nine months. The application was filed on 27 March 2015 and a conciliation conference was conducted on 22 April 2015 which was not successful in resolving the matter.
[3] The Respondent employed 231 employees including the Applicant at the time of termination. No jurisdictional issues were raised by the Respondent. I am satisfied there are no other jurisdictional impediments to hearing the substantive application.
[4] The Respondent submits that the Applicant was summarily dismissed for serious misconduct. The serious misconduct was alleged to have been theft.
[5] The matter was heard in Brisbane on 27 October 2015. A second day of hearing was required and this was held in Brisbane on 16 November 2015, with one witness appearing by video link on that day. The Applicant was represented by Mr John Merrell of Counsel instructed by the Transport Workers’ Union of Australia and the Respondent was represented by Mr Scott McSwan of McKays Solicitors.
[6] The Applicant filed a witness statement on behalf of himself. The Respondent called four witnesses, Glen Salter, Warehouse Manager; Raymond Deighton, Queensland State Manager; Timothy Reichel, Human Resources Manager; and Mohammed Faraj, the Applicant’s customer who consigned the missing package.
Background
[7] The termination letter read as follows:
“Dear Peter,
This letter has been drawn to address serious issues of concern regarding your employment at Direct Freight Express (DFE).
On the 12th March 2015 you were questioned over an incident whereby it was put to you that DFE has CCTV footage from 26th February 2015 showing a missing item of freight being loaded by you into your delivery truck. The discussions regarding this matter were held at 9:00am where the initial allegations were put forward to you and at 3.15pm where we discussed the matter with you following further investigation. A follow up meeting was then scheduled for 9:00am on Friday 13th March 2015 to further discuss and provide an outcome from the investigation. You were stood down on full pay while the matter was fully investigated and considered.
You were also offered the opportunity to bring a support person to the meetings which you declined. Additionally you advised just prior to the follow up meeting scheduled for 9:00am on 13 March 2015 that you would not be attending and to direct all correspondence via email to [email protected].
During our discussions you refuted the allegation that you were responsible for the theft of the carton in question. DFE took your comments into consideration and further investigated, including further viewing of the CCTV footage.
Following further review of the CCTV footage and having taken consideration to the entire matter, DFE is not convinced by your comments and with the evidence we have, has made the decision to terminate your employment by means of serious misconduct due to theft.
Under current employment legislation, termination based on serious misconduct voids any notice period payout requirements. You will be paid up until and including your last day of employment, Friday 13th March 2015 as well as any outstanding payments and or entitlements within seven days of this letter.
We wish you well for your future endeavours.
Yours sincerely,
Ray Deighton
QLD State Manager”
[8] The closing submissions of both parties efficiently summarise facts not in dispute, and other relevant evidence. The background is as follows.
[9] The Respondent provides a freight delivery service that uses trucks in the performance of its delivery services and has depots in various locations including Melbourne, Brisbane and Townsville. The Applicant was dismissed after an investigation determined that he had engaged in theft of a box containing a laptop computer on 26 February 2015.
[10] The box that was allegedly stolen by the Applicant in the time leading up to 26 February was, on or about 24 February 2015 the subject of a consignment order placed by Com 1 with the Respondent, for the Respondent to transport the box with another package, from Com 1’s depot in Melbourne with the ultimate destination being the Harvey Norman store in Townsville.
[11] The box was with the other package, picked up by the Respondent from Com 1’s premises in Melbourne and then transported to the Respondent’s depot in Melbourne.
[12] The box was then transported by the Respondent with the other package from its Melbourne depot to its Brisbane depot, where both were scanned into the Brisbane depot on Wednesday 25 February 2015.
[13] The Applicant submitted that the box was alleged to be transported by truck to the Respondent’s Townsville depot where, on the way, packages from the truck delivering packages to the Respondent’s depot stopped at Proserpine where packages were unloaded in circumstances where packages were not scanned by the Respondent, confirming delivery at Proserpine and where no witness was able to confirm what was taken off the truck. 1 The Respondent submitted that according to the Respondent’s usual processes, the box was expected by the Respondent to be transported by truck to the Respondent’s Townsville depot.2
[14] The Respondent submits that it is not plausible that the box was removed in Proserpine. It relies on the evidence of Mr Deighton to the effect that the Proserpine freight is segregated from the area where the smalls are loaded for Townsville. 3
[15] It was agreed that the consignment note number for the box and the other package which was dated 24 February 2015 was 3185000009564. 4 The evidence was that in respect of that consignment note number only one package was received by Harvey Norman in Townsville on Monday 2 March 2015.56
Date of arrival of box in Townsville
[16] The Applicant submitted that the Respondent could only estimate the date that the box allegedly arrived at the Townsville depot. The Respondent accepted that because it did not have a process where its barcodes attached to the freight would be scanned when freight arrived at the Respondent’s Townsville depot, the Respondent had to estimate when the box would have arrived at the Townsville depot.
[17] The Respondent said that it estimated that the date the box arrived at the Townsville depot was on Thursday 26 February 2015 after having regard to its usual systems and procedures. It relied on the evidence of Mr Deighton as follows:
“25 We estimate that date because:
25.1 My search of the company’s tracking system verified that:
(a) The freight (3185000009564) had been “scanned in” to the Brisbane depot on 25 February, 2015, and normal transit times should have this freight arrive in Townsville either late AM or early PM the following working day 26 February 2015;
(b) The other package in that consignment was delivered to Harvey Norman Townsville on Monday 2 March, 2015, and a delivery receipt has been signed by Harvey Norman;
(c) The timing for the delivery run from Brisbane to Townsville was (and still is) as follows:-
- (i) After the freight is dispatched from Brisbane, the line-haul trailer from Brisbane arrives in Mackay in the morning;
(ii) The Mackay freight is unloaded, and a new driver then takes the trailer to Townsville via Proserpine and arriving in Townsville around lunchtime;
(iii) On arrival at the Townsville depot the freight is unloaded;
(iv) That afternoon the Townsville depot undertake the deliveries that afternoon that they can fit in, with the exception of Harvey Norman freight, as explained below;
(v) The Townsville depot drivers complete the rest of the deliveries the next morning, with exception of Harvey Norman freight as explained below.”
The Complaint by Com 1 about the non-delivery of the box
[18] It was agreed that on or about 4 March 2015 Com 1, by email, made a complaint about some missing freight. 7 The complaint was not just about the box itself but included other freight that Com 1 had contracted the Respondent to deliver, which had gone missing over time and that the total sum of the value of the missing freight that was due to be delivered by the Respondent for Com 1 was $40,816.60.8
[19] It was agreed that following on from this complaint made by Com 1 to the Respondent, the Respondent conducted an investigation about the missing box itself, including Mr Glen Salter, the Respondent’s Townsville Depot Supervisor viewing CCTV footage of the Townsville depot, and later by Mr Deighton, the Queensland State Manager and Mr Timothy Reichel, the Respondent’s Human Resources and Safety Advisor.
The use of CCTV footage
[20] The Respondents Townsville depot is secured by way of closed circuit television cameras (CCTV). After having estimated that the box would have arrived at the Townsville depot at either midday or early afternoon on 26 February 2015, 9Mr Salter reviewed the CCTV footage of 26 February 2015. 10 The Respondent submitted that the Applicant knew that the Respondent had CCTV cameras in its Townsville depot. The Applicant accepted he knew this. 11
[21] Mr Salter viewed and downloaded CCTV footage taken on 26 February 2015 of:
(i) The first video played in the proceedings before the Fair Work Commission (the Commission) namely the video of the truck from Brisbane being loaded and packages being placed onto the conveyor belt at the Townsville depot (the conveyor belt video); and
(ii) of the second video played in the proceedings before the Commission, namely the CCTV footage of the Applicant in Bay 5, putting boxes onto his trolley and then loading the boxes into the back of his truck (the loading bay video).
[22] Mr Salter’s evidence is that he identified the missing box on the conveyor belt video and the loading bay video. Mr Salter, in coming to his conclusion that the Applicant stole the box passed his opinion onto Mr Deighton. 12 13
[23] Mr Deighton gave the following evidence regarding his discussions with Mr Salter;
“27 I was contacted by Glen after he had viewed the footage for 26 February, 2015. He explained to me:
- 27.1 He had identified the missing Com1 package arrive at the Townsville depot as follows:
(a) The packaging was distinctive, and matched the image of the packaging supplied by Com 1, and on forwarded by me to Glen.
(b) The distinctively packaged package (the missing package) was visible on video footage exiting the back of the truck and entering onto the conveyor system in the Townsville depot;
27.2 That he did not see the package being unloaded from the conveyor belt.
27.3 That the Applicant had placed a large pile of freight in a location in bay 5 that obscured the view of part of the conveyor belt where the Applicant was removing packages from the conveyor to the bay.
27.4 That he did see the missing package in loading bay 5 in which the Applicant was working, and so it must have been removed from the conveyor belt in the bay.
27.5 That the package should not have been in the loading bay 5 because:
(a) The consignment sticker on the missing package would have clearly identified the package as to be delivered to Harvey Norman.
(b) Bay 5 is not the loading bay at which freight bound for Harvey Norman is unloaded, which the Applicant well knew.
27.6 That the video footage showed the Applicant:
(a) placed the missing package onto the foot of the trolley without scanning it;
(b) then move the trolley to another area in the bay;
(c) then continue to load other packages on top of it;
(d) then load the packages (including the missing package) from the trolley into the back of the truck so that they were the first loaded into the truck and at the head of the loading area in the truck.
27.7 That in the course of loading the missing package the Applicant did not scan the missing package, but he did scan the other packages.
27.8 That Peter’s movements and general manner as he was dealing with the missing package suggested that he was trying to obscure it from vision of the camera, and he kept glancing up at the camera.
28. I requested Glen to send the video footage to me, so that I was able to view it.
29. I then viewed the video footage together with Shaun Griffin, Queensland State Operations Manager and Tim Reichel, Human Resources Manager.
30.1 The tape used; and
30.2 The shape.
31. On my view of the video footage I concurred with the views expressed to me by Glen Salter about the video footage and what it showed about the missing package.
32. I then undertook a check of the Direct Freight Express delivery system and satisfied myself that there were no other consignments by Com1 on that day (26 February, 2015) and the spread of days around it.
33. I was therefore satisfied that the package that I viewed on the video was indeed the missing package and that there was no other package consigned by Com1 that would have arrived in the Townsville depot, that could have been confused with the missing package.”
[24] Mr Salter viewed other CCTV footage of 26 February 2015 which was not downloaded and which was not provided to the Commission. Mr Slater refers to this other CCTV footage in his first statement. 14 The Applicant submitted that Mr Salter, in coming to the view that the Applicant stole the box, came to that view based on viewing the other CCTV footage because on his evidence15 he used the other CCTV footage by way of a process of elimination to conclude that the Applicant stole the box. The Applicant referred to the oral evidence of Mr Salter where he agreed with this proposition. 16
[25] The Applicant drew attention to the evidence of Mr Salter that he only kept the CCTV footage that he was asked to keep by Mr Deighton and Mr Reichel 17 however the Applicant submitted that in cross examination Mr Deighton18 and Mr Reichel19did not give clear evidence as to whether they gave any such clear instruction to Mr Mr Salter.
[26] It was submitted for the Applicant that after Mr Deighton had viewed the CCTV footage sent to him by Mr Salter which must have been in about early March 2015 and before the meeting on 12 March 2015 he formed the view that the Applicant had stolen the box on 26 February 2015.
The viewing of CCTV footage.
[27] The Commission heard evidence from Mr Salter and Mr Deighton about their viewing of the conveyor belt video and the loading bay video and identified before the Commission:
(a) What they believed to be the box, as it came out of the truck onto the conveyor belt, in the conveyor belt video; and
(b) What they believed to be the same box, placed by the Applicant onto his trolley and then placed into the back of the truck, in the loading bay video.
[28] It is submitted for the Applicant that there is no doubt that the box identified by Mr Salter and Mr Deighton is different to the box identified on the conveyor belt video and loading bay video by Mr Faraj when Mr Faraj gave his evidence-in-chief.
[29] It is also submitted for the Applicant that there is no doubt that when Mr Salter and Mr Deighton viewed the conveyor belt video and the loading bay video in about early March 2015, they had been provided with photographs of a box, by Com1 said by Com1 to be a box similar to the missing box. 20Both Mr Salter 21 22 and Mr Deighton 23 24 in cross examination accepted they had seen the photographs prior to viewing the CCTV footage so as to identify, on their evidence, the missing box.
[30] The Applicant submitted that the Commission cannot accept that the box identified by Mr Salter and Mr Deighton in the conveyor belt video and in the loading bay video is the missing box as depicted in the pictures sent by Com1 to the Respondent for the following reasons:
(a) On both the conveyor belt video and the loading bay video, one cannot see on the box as depicted in the pictures sent by Com1, namely, the markings on the box in the photos reasonably cannot be seen on the box identified by Mr Salter and Mr Deighton in the conveyor belt video and the loading bay video;
(b) On both the conveyor belt video and the loading bay video, you cannot see the writing on the tape around the box that is depicted in the Com1 photos;
(c) When Mr Salter viewed the conveyor belt video in the Commission, he identified the box at the time of about 13:15:48; 25 however, at that point in the video no writing on the box can clearly by seen and certainly there can be no writing seen on the tape around the box and all Mr Salter could point to was a “smudge” 26on the box identified;
(d) Mr Deighton, when he gave his evidence, said that he could see the missing box at about 13:15:36 on the conveyor belt video, 27however, at that point in the conveyor belt video, it is submitted that there is no clear writing to be seen on the box and that the writing on the tape on the box cannot be seen;
(e) In relation to the loading bay video, Mr Salter said that he could identify the box on the bottom of the Applicant’s trolley because of the way the box was made, the tape around the box and the sticker and the flaps of the box; 28however it was submitted for the Applicant that on the loading bay video, those identifying marks cannot be clearly seen such that the Commission could reasonably conclude that the box in that video, as identified by Mr Salter, is the same box in the Com 1 photographs; and
(f) Mr Deighton, when he gave evidence, said, in relation to the loading bay video, at 13:52:33, he could identify the box on the bottom of the Applicant’s trolley as being the missing box; 29 however, for the same reasons given above, given the distance between the camera and the box on the Applicant’s trolley, the Commission cannot reasonably conclude that the box on the bottom of the Applicant’s trolley is the same as the box depicted in the Com 1 photographs because no clear marks can be seen on the second video.
[31] The Applicant further submitted that even on Mr Salter and Mr Deighton’s evidence, the Commission cannot be reasonably satisfied that:
(a) The box they identified on the conveyor belt video was the same as the box in the photos in their statements 30and
(b) The box they identified on the loading bay video was the same as the box in the photos in their statements.
[32] The Applicant submitted that this was because on the conveyor belt video and on the loading bay video, the proportions of the box seem to the naked eye to be different in width, length and height to the box in the photos in their statements.
[33] The Applicant refers to the evidence of Mr Salter and Mr Deighton that Com 1 never provided the Respondent with any dimensions of the box at or about the time the photos were sent by Com 1 to the Respondent. 31
[34] The Respondent in submissions referred to the oral evidence of Mr Salter that he identified the Com 1 box including the shape of the package, the sticker on the side and tape, and the way the package had been made. 32The Respondent relied on the following evidence of Mr Salter:
“Where the label is on the side facing us, you can also see a bit of a black smudge on the top of where the name, I guess I could say, is. You can also notice that the way the package is made, it doesn’t have flaps on the top of it like the other packages. It has the flaps on the side where it opens from, so basically the side facing the wall, not the top or the bottom, which you can actually see in the one in front of it, the shape.” 33
“The sticker on the side looks very similar.” 34
“The shape of it, the size of it and where it’s located on the carton.” 35
“Where the “MSI” is, it’s located at the same spot as where that black smudge is, I suppose you could say, and the way the carton has been made; so the flaps on the side, not the top and bottom.” 36
“…the way the box is made with the tape and it has also got the logo on the tape which gives it that look. Not just clear tape or brown tape.” 37
“ That sticker again. The size of it. The flaps.” 38
[36] Both parties in submissions referred to the evidence of Mr Salter under cross-examination that the video he viewed in the Commission was not of the same quality. 39It was submitted for the Applicant Mr Salter did not raise this as an issue during examination-in-chief and Mr Deighton and Mr Reichel, when they viewed the video in the Commission did not give evidence that the quality of the video in the Commission was of a poorer quality to the footage they viewed in reaching their conclusion.
[37] The Respondent also relies on Mr Salter’s evidence concerning features of the loading process undertaken by the Applicant as shown in the loading bay video. Mr Salter gave the following evidence in this regard:
“The way the carton was moved to the trolley instead of just being picked up and put on the trolley. The way another carton was put on top of it and dragged across the floor instead of, you know, being picked up again. It’s not a very heavy-looking carton, so there was no reason to drag it. The way it was hidden in front of the mixed consignment. The way Peter looked at the camera before he did it and the way it wasn’t scanned. 40”
[38] Mr Deighton gave similar evidence to Mr Salter concerning features of the box that identify it. 41 42Mr Deighton also maintained that features of the loading process undertaken by the Applicant 43 were suspicious.
[39] Mr Deighton gave the following evidence;
“A further input to my decision was that I directed the video footage be sent to the Melbourne Customer Service division, to meet with the customer and to ask the customer to identify the missing package. I was informed by the Melbourne service division that the footage was shown to the customer, and the customer identified the footage. Tim Reichel received that advice by email. A copy of that email is exhibited and marked ‘RD4’’ 44
[40] Mr Faraj, a director of Com 1, gave evidence on behalf of the Respondent, identifying from the CCTV that the box that was said to have been stolen was the undelivered box that had been consigned from Melbourne to Harvey Norman in Townsville by Com 1.
[41] It is not contested by the Respondent that in the course of his oral evidence before the Commission when viewing the conveyor belt video Mr Faraj, a director of the company that owned the box, identified a different box to that identified by Mr Salter and Mr Deighton. I accept the Applicant’s submission that the box identified by Mr Faraj was a different, larger box. He repeated this evidence. 45 46
[42] I also accept as correct the submission for the Applicant that Mr Faraj identified in the loading bay video not one box, but “boxes”, which were larger and different boxes to those identified by Mr Salter and Mr Deighton.
[43] Mr Faraj identified boxes which were stacked in the foreground of the loading bay video (as opposed to being stacked in the background of the loading bay video as identified by Mr Salter and Mr Deighton). Mr Faraj’s evidence also had the Applicant placing the alleged stolen box on his trolley after the time identified by Mr Salter and Mr Deighton the box was initially stacked in the background of the loading bay video. 47
[44] It is not contested that Mr Faraj was not sent the conveyor belt video and the loading bay video until after the Applicant had been terminated. Mr Faraj said he received a copy on 1 May. 48 It is apparent as submitted by the Applicant that Mr Faraj was not asked by the Respondent to see if Mr Salter’s interpretation and Mr Deighton’s interpretation of the conveyor belt video and the loading bay video was the same as his prior to the dismissal.
[45] The Applicant emphasised that not only did Mr Faraj identify a different box or boxes to that as identified by Mr Salter and Mr Deighton, but in an email dated 28 April 2015 forwarded to Mr Faraj 49the Respondent gave Mr Faraj instruction as to where the missing box was, according to the Respondent, on the two videos. However, even after being provided this information Mr Faraj was not able to identify the same missing box as identified by Mr Salter and Mr Deighton.
Events of 12 March
[46] It is not in dispute that on 12 March 2015 on two occasions Mr Salter and Mr Deighton met personally with the Applicant, with Mr Reichel participating by phone, where the allegations that he stole the box were put to him. It is not disputed that at neither meeting was the Applicant shown the CCTV footage. This is despite the Applicant having asked to see the CCTV footage. 50
[47] Mr Deighton’s evidence was that before the first meeting but after having viewed the CCTV footage he had a great suspicion the Applicant stole the box. 51Mr Deighton flew from Brisbane to Townsville to participate in a meeting with the Applicant.
[48] The Applicant submitted that based upon Mr Reichel’s evidence 52 the Respondent made a decision after the first meeting on 12 March that the Applicant was to be terminated because the Respondent had formed a view that there was an irretrievable breakdown in the working relationship of trust, and therefore any further steps the Respondent took after that point were merely to create the appearance of procedural fairness.
[49] The Applicant’s submitted that the Commission should accept based on Mr Deighton’s evidence 53 that by the time of the second meeting the investigation was completed. It was put that the only fair way for the Respondent to have conducted the investigation was to have played the CCTV footage to the Applicant.
[50] Mr Deighton and Mr Reichel gave evidence that they intended to play the CCTV footage to the Applicant on 13 March 2015 at a meeting which the Applicant had been requested to attend at 9:00am but did not do so.
[51] I am not inclined to accept that the Respondent was intending to show the Applicant the CCTV footage for the reasons asserted by the Applicant. These include:
(a) that the claim is inconsistent with the evidence of Mr Deighton that the Sydney office had told him not to show the video to the Applicant;
(b) Mr Deighton gave evidence that the purpose of the second meeting was to try to get the Applicant to make an admission and resign; 54
(c) By the conclusion of the second meeting the Respondent had formed the view the Applicant had stolen the box;
(d) Whilst the Applicant had been invited to attend the meeting on 13 March he had not been informed he would be played the CCTV footage; and
(e) The intention of having the meeting on 13 March was to advise the Applicant of his dismissal.
Events of 13 March
[52] The Applicant gave evidence that on the morning of 13 March he was feeling extremely stressed and sick. He said he made an appointment to see his doctor and advised Mr Salter by text message that he wouldn’t be attending the meeting at 9.00am. 55 The Applicant sent a medical certificate to Mr Salter advising the Applicant was sick and could not attend work. Notwithstanding Mr Reichel being informed by Mr Salter of the Applicant’s medical certificate, Mr Reichel on instruction from Mr Deighton proceeded to terminate the Applicant. Mr Reichel had been provided at 10.02am an email attaching a medical certificate.56
[53] Mr Deighton confirmed in cross-examination that he was aware of the medical certificate that morning but that fact did not change his decision to terminate the Applicant’s employment. It was his oral evidence that the medical certificate was a tactic to avoid further communication regarding the matter at hand. 57 The Applicant was sent a letter advising him of his summary dismissal on 13 March 2015.58
Section 387
[54] Section 387 provides as follows:
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.
[55] For a reason to be a valid reason within the meaning of s. 387(a) it must be sound and defensible or well founded. It cannot be capricious, fanciful, spiteful or prejudiced. Selvachandran v Peteron Plastics Pty Ltd 59
[56] In King v Freshmore (Vic) Pty Ltd 60a Full Bench of the Australian Industrial Relations Commission stated as follows:
“When a reason for termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place, and what it involved.”
[57] Given the nature of the reasons for dismissal in this case the principles as established in Briginshaw v Briginshaw and Neat Holdings v Karajan Holdings Pty Ltd concerning the exactness of proof, or strength of evidence required to establish facts on the balance of probability are relevant and I have had regard to those principles in reaching my conclusions.
[58] Having considered all of the evidence I accept the Applicant’s contention that there is no clear or cogent evidence before me to prove that the Applicant stole the missing box. The evidence is clear that the Applicant consistently denied the allegation made against him.
[59] Importantly the box identified by Mr Salter and Mr Deighton as having been stolen by the Applicant on reliance on the two videos, is at odds with the box identified by Mr Faraj from the videos.
[60] I also accept as submitted for the Applicant that the markings on the box in the photos in Mr Faraj’s statement cannot reasonably be seen on the conveyor belt video and on the loading bay video, and the marking on the tape around the box in the photos in Mr Faraj’s statement cannot reasonably be seen on either of the videos, and the proportions of the boxes on the two videos are reasonably different, being larger than the box in the photos.
[61] I accept the Applicant’s submission that the evidence is flimsy and that the Respondent has not been able to discharge the onus upon it to satisfy the Commission on the balance of probability that the Applicant actually engaged in the conduct alleged. It is also possible as asserted for the Applicant that had other CCTV footage viewed by Mr Salter but not made available to the Commission, been available it may have assisted the Applicant.
[62] The Respondent raised a number of matters in addition to the video evidence concerning the box which it relied upon to support the inference that the Applicant must have stolen the box. This included the Applicant’s practice of scanning boxes already loaded on a truck, that the delivery truck viewed in the loading bay video was empty when it returned from its delivery run and that the missing box was not found elsewhere in the Townsville Depot or reported by any other customer and there is no other explanation for the missing box.
[63] The Respondent also relies upon its view that the manner in which the Applicant was conducting himself as visible in the loading bay video lends weight to its case. Particularly the Respondent relies on the manner in which the Applicant appears to drag a box rather than picking it up, and also that it appears the Applicant looks in the direction of a CCTV camera. All of these additional matters taken separately or together do not amount to more than speculation and have not persuaded me that it is probable that the Applicant stole the box as alleged. The considerable distance between the position of the camera and the Applicant in the loading bay video undermines the reliability of the claims made by the Respondent as to why the Applicant may have dragged a particular box, or whether he was as a matter of fact even looking directly at the CCTV camera.
[64] The Applicant was notified of the reason for dismissal on 13 March 2015. The Applicant was not afforded the opportunity to see the CCTV footage and make a response before he was terminated which was a denial of procedural fairness. The Respondent referred to the decision in Y Liu v Star City Pty Limited 61in support of a submission to the effect that the Applicant not having been shown the video did not amount to a failure to afford an opportunity to respond. For the reasons as set out in the Applicant’s written submissions in reply that authority is distinguishable from the circumstances in this case, and it would have been appropriate on the facts of this case for the Applicant to have had an opportunity to see and respond to the footage that the Respondent relied upon to terminate him.
[65] The Applicant was not refused by the employer a support person. Section 387(e) is not relevant in this case. Sections 387(f) and (g) provide no assistance to the Respondent as it is a large business and has a dedicated human resources specialist.
[66] Having considered each of the criteria in s.387 I am satisfied the dismissal was unjust and unreasonable.
Remedy
[67] The Applicant does not seek reinstatement and seeks compensation in lieu of reinstatement. Section 392 reads as follows:
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
Note: subsection 392(5) indexed to $68,350 from 1 July 2015
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
[68] Given that the Applicant does not seek reinstatement and I have found his dismissal was unfair an order for payment of compensation is appropriate in all of the circumstances.
[69] The Applicant’s group certificate for the financial year ended 2015 62indicated from 1 July 2014 to 13 March 2015, a period of 37 weeks, his gross earnings were $40,821.61.
[70] The Applicant relies on the evidence of Mr Salter his supervisor that he had a good relationship with the Applicant, had hoped he would take on a supervisory role and Mr Salter trusted his judgment. 63 It was submitted for the Applicant he would have remained in employment for at least another two years. I do not regard the Applicant’s length of employment as long at two years and nine months but accept the Applicant’s submission that the evidence of Mr Salter concerning his positive attitude toward the Applicant should be given weight. I therefore estimate remuneration the Applicant would have received or would have been likely to receive if he had not been dismissed as a further 1 year, resulting in a figure of $57,370.56 based on average gross weekly earnings of $1,103.28.
[71] There is clear evidence to demonstrate the Applicant has taken reasonable steps to mitigate his loss including applying for jobs and achieving new casual employment in June 2015, and performing two days’ work through a labour hire company and other work for a community based organisation. The Applicants final written submissions provided a breakdown of the earnings of the Applicant since his dismissal from all other sources until 25 November 2015 providing a total of $13,287.96. The loss, less amounts earned up to 25 November 2015 is $44,082.60. Assuming the Applicant continued to earn income for a period of 9.4 weeks between 26 November 2015 to 29 January 2016 at the same rate of $675.40 amounts to $6,348.76 making the estimated loss of $37,733.84. Allowing for a further two weeks income likely to be earned at the same rate during the period between the making of an order and the actual compensation a further deduction of $1,350.80 equates to an estimated loss of $36,383.04.
[72] A deduction for the contingency that the Applicant may not have continued employment with the Respondent of 30% equates to a gross loss of $25,468.13. That amount does not exceed the compensation cap of $28,685.28 being the amount received by the Applicant in the 26 weeks before his dismissal. I have considered the impact of taxation, but prefer to determine compensation as a gross amount and leave taxation to determination.
[73] There is no conduct on the part of the Applicant which would cause me to make a further reduction to the amount of compensation ordered. An order that the Respondent pay to the Applicant a gross amount of $25,468.13 taxed according to law will be issued with this decision.
COMMISSIONER
Appearances:
Mr John Merrell of Counsel instructed by the Transport Workers Union for the Applicant
Mr Scott Mc Swan of McKays Solicitors for the Respondent
Hearing details:
Brisbane
2015
October 28
November 15
1 Transcript 16 November 2015 PN 1302 – 1313 Cross examination of Mr Deighton
2 Transcript 16 November 2015 PN 1154 – 1156 Re-examination of Mr Salter
3 PN 1491
4 Exhibit 10 Statement of Raymond Deighton dated 17 July 2015 Paragraph 13.2
5 Exhibit 7 Statement of Mohamed Faraj dated 17 July 2015 Paragraph 7
6 Exhibit 10 Statement of Raymond Deighton dated 17 July 2015 Paragraph 25.1(b)
7 Exhibit 10 Statement of Raymond Deighton dated 17 July 2015 Paragraph 8
8 Exhibit 8 Email from D Mehmet to M Faraj
9 Exhibit 10 Statement of Raymond Deighton dated 17 July 2015 Paragraph 25
10 Exhibit 5 Statement of Glenn Salter dated 17 July 2015 Paragraphs 43 to 56
11 PN 272
12 Exhibit 5 Statement of Glenn Salter dated 17 July 2015 Paragraph 63
13 Exhibit 10 Statement of Raymond Deighton dated 17 July 2015 Paragraph 27 to 35
14 Exhibit 5 Statement of Glenn Salter dated 17 July 2015 Paragraph 47 - 50
15 Exhibit 5 Statement of Glenn Salter dated 17 July 2015 Paragraph 47-56
16 PN 1031-1043
17 PN 1055
18 PN 1370-1372
19 PN 1559
20 Exhibit 5 Statement of Glenn Salter dated 17 July 2015 Attachment GS7and RD2 of Exhibit 10
21 PN 1340
22 Exhibit 10 Statement of Raymond Deighton dated 17 July 2015 Paragraph 19
23 PN 996
24 Exhibit 5 Statement of Glenn Salter dated 17 July 2015 Paragraph 45
25 PN 459 to PN 467
26 PN 467 and PN 472
27 PN 198
28 PN 794 to 796
29 PN 1222
30 Exhibit 5 Statement of Glenn Salter dated 17 July 2015 Attachment GS7and RD2 of Exhibit 10
31 PN 1009 to 10120
32 PN 460 to 466
33 PN347
34 PN 469
35 PN 470
36 PN 472
37 PN 794
38 PN 796
39 PN 1016 to 1019
40 PN 809
41 PN 1207
42 PN 1222
43 PN 1239-1244
44 Exhibit 10 Statement of Raymond Deighton dated 17 July 2015 Paragraph 36
45 PN 550 – 551
46 PN 571-597
47 PN 602-620
48 PN 680
49 Exhibit 7 Statement of Mohamed Faraj dated 17 July 2015 attachment MF3
50 Exhibit 2 Statement of Peter Mulhall dated 30 July 2015 Paragraph 28
51 PN 1336
52 Exhibit 11 Statement of Timothy James Reichel dated 17 July 2015 Paragraphs 12 to 21
53 PN 1436
54 PN 1445-1446
55 Exhibit 2 Statement of Peter Mulhall dated 30 July 2015 Paragraph 33
56 Exhibit 5 Statement of Glenn Salter dated 17 July 2015 Attachment GS 11
57 PN 1461
58 PN 1455
59 [1994] IRCA 153
60 S4213 [2000] AIRC 1019
61 [2001] AIRC
62 Exhibit 2 Statement of Peter Mulhall dated 30 July 2015 attachment PM7
63 Exhibit 5 Statement of Glenn Salter dated 17 July Paragraph 7 and 9
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