Schaeffer v Dealore Pty Ltd
[1996] IRCA 444
•17 September 1996
DECISION NO: 444/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY AI 1046 of 1996
IRENE SCHAEFFER
Applicant
DEALORE PTY LTD trading as HAWKER FESTIVAL
(A.C.N. 062 304 849)
Respondent
Coram: Judicial Registrar Linkenbagh
Place: Canberra
Date: 17 September 1996
REASONS FOR JUDGMENT
This is an application filed in the Australian Industrial Relations Commission on 3 May 1996 in respect of the termination of the employment of the applicant by the respondent at the Hawker Festival Supermarket in the Auatralian Capital Territory. The applicant worked there from 8 June 1995 to 29 March 1996 in the capacity of Checkout Assistant. No issue is taken with her conduct or the performance of her duties other than her conduct on 29 March, 1996. On that day, at about 10.30 am, the applicant completed a task of placing Easter Eggs into small bags, which bags were to be sold for $2 each. She obtained the Easter Eggs from a larger container and at the conclusion of the task she had seven Eggs left over. The total value of those Eggs was $1.05.
I find that one thing the applicant could have done with those seven Eggs was to place them in a container of similar Eggs which were available for purchase individually at a cost of 15 cents each, by customers at the store, that container being located on the counter where the applicant worked. The applicant elected not to do that, but called to another employee, Mr Pagoulatos, the Manager of the Dairy Section, who was a short distance away. He came over to her and she placed the seven Eggs in his apron. There is a difference in the evidence as to what words passed between the applicant and Mr Pagoulatos. I find that the applicant said to Mr Pagoulatos words to the effect that he was not to tell anyone, and that he was surprised by the applicant's action and that he said words to her to the effect of drawing her attention to the security surveillance cameras in the store.
Mr Pagoulatos reported the incident to the checkout supervisor, Marty Sellars, who in turn passed the information on to Steven Krnc, one of the Directors of the respondent, who managed the store from time to time. Mr Krnc spoke to the applicant during her morning tea break at about 11 am. I find that he approached the applicant and put to her that she had given goods away without having first paid for them. I find that the applicant replied to the effect that she agreed that she had done so, but indicated to Mr Krnc that the items concerned were only a couple of Easter Eggs, and that she volunteered to pay for the Eggs during that conversation with Mr Krnc. The applicant, after speaking to Mr Krnc, went to Marty Sellars and paid her for the Easter Eggs.
The applicant gave evidence, which was uncontested, that staff at the Supermarket were not permitted to have any money on their persons whilst they were working in the store and that her personal money was kept in her locker, which was in a downstairs area. I will return to the question of at what stage the applicant formed the intention to pay for the goods. Before Mr Krnc spoke to her, the applicant went to her locker and obtained her cigarettes and she went outside to smoke a cigarette and it was then that Mr Krnc initiated the conversation with her.
The applicant again spoke to Mr Krnc during her lunch break. Mr Krnc had informed her at the first meeting that he would discuss the matter with his brother who was also a Director of the respondent. The applicant was informed by Mr Krnc at the lunch break that he had not spoken to his brother at that stage. The two had a conversation which lasted for about 20 or 30 minutes and I find that in that conversation they discussed the possible consequences of the applicant's action, including the possibility that her employment might be terminated. I find also that at the conclusion of that meeting Mr Krnc requested the applicant to see him again after she had finished her shift at 5 pm.
The applicant did not see Mr Krnc further that day. Mr Krnc spoke to his brother John during the afternoon and they made a decision to terminate the applicant's employment. That decision was based upon their firm view that the Company had a policy, which applied to all employees, that no goods were to be removed from the store or consumed until they had been paid for. The applicant had not only admitted being aware of that policy but she had only a few days before put that policy into effect by bringing to her employer’s attention the conduct of another employee which, in her opinion, might have been in
reach of that policy.
Mr Steven Krnc telephoned the applicant on the afternoon of Sunday 31 March and informed her of the decision to terminate her employment. She had not attended the appointment which he had proposed to her for after 5 o'clock on the Friday. Mr Krnc conveyed the decision to terminate the applicant's employment on the telephone because of a view held by him that he did not want to have the applicant come to work on the Monday morning only to be dismissed and sent home again in the presence of other employees. Those are the facts.
The applicant relied on a breach of Sections 170DE(1) and Section 170DC. I will address the issue 170DC first.
The representative of the respondent has handed to me various Industrial Tribunal decisions which deal with facts not dis-similar to the facts in this case. All of those decisions are to the effect that abuse of or disregard of company policies involving dishonesty is a ground for summary dismissal. In this case whether or not the applicant's conduct can strictly be labelled as theft is beside the point. The applicant exercised dominion over the seven Easter Eggs by purporting to give them to Mr Pagoulatos. In doing so she deprived her employer of his title to the goods and it could be said that that conduct would have warranted a summary dismissal without reference to the procedures which are thought desirable for compliance with Section 170DC.
Notwithstanding that, the employer in this case did in fact give the applicant three opportunities to put her point of view. The first was in the meeting at morning tea time on the Friday, and the second was in the meeting at lunch time. Certainly that second meeting was initiated by the applicant but nevertheless it was a meeting which continued for a substantial period of time and was a meeting with the person who was the Manager of the store at the time. The possibility of dismissal was raised, at least at the lunch time meeting.
It has been put on behalf of the applicant that options should have been put to her and that she should have been allowed to have the opportunity to have another person present when she was interviewed. Certainly, those practices are desirable in some instances. However, it is my view that the applicant was not prejudiced in any way during the meetings that occurred on the Friday and that she was given every opportunity to explain her conduct.
I find that the applicant elected, for reasons known to her alone, not to attend the meeting at 5 o'clock on the Friday afternoon and she therefore did not take advantage of a third opportunity to explain her conduct. Even if the applicant's recollection, given in her evidence before me, that she was not aware of that appointment, is correct, and there had been no meeting, such a conclusion is inconsistent with the evidence. Steven Krnc and John Krnc discussed the matter on the Friday afternoon and it seems to me to be unlikely that Steven Krnc would not have made some arrangement in advance with the applicant to convey the result of those discussions to her as soon as possible. That is notwithstanding that she would, nevertheless, have had the opportunity to approach him that afternoon if there was anything further that she might have wished to say.
Turning to the assertion by the applicant that there was a breach of Section 170 DE (1), the decision of the High Court in State of Victoria v Commonwealth handed down very recently is relevant to these proceedings and might be seen to possibly deny the applicant a remedy which she may have been successful in obtaining but for the effect of that decision. That decision renders inoperative, in effect, Section 170EDA and Section 170DE(2) of the Act.
Pursuant to Section 170DE(1) of the Act an employer is enjoined from terminating an employee's employment unless there is a valid reason connected with the employee's conduct. I am satisfied that in this instance there was such a reason. The word "valid" is defined in the Shorter Oxford English Dictionary as, in relation to arguments, assertions, etcetera; “well founded and applicable; sound and to the point; against which no objection can fairly be brought”.
Valid generally means effective; effectual or sound. In this case the respondent runs a business which of necessity calls for a high degree of trust in its employees and, of necessity, requires that it have policies in relation to security of its property, which policies must be stringently enforced. The applicant, I find, breached that policy in giving the Easter Eggs to Mr Pagoulatos. If, in fact, she had had the intention to pay for the goods from the time she exercised control over them then I might come to a different view as to the validity of the reason. However, I am not satisfied that she had an intention to pay for the goods at that stage.
I base that view on several matters. The first is that when approached by Steven Krnc she did not indicate any intention to pay for the goods until after he had put the issue to her. That is, the issue being that she had taken the Eggs. The evidence in that regard is not to the effect that she had always intended to pay for the goods, but that she would pay for them now that Mr Krnc had spoken to her about the issue. It is often said that one can look at conduct as an indicator of whether or not an intention existed at a particular time and it could be said that if the applicant had the intention to pay for the goods she could have exhibited that intention by obtaining the money from her locker at the time when she obtained the cigarettes from the locker.
It is not unreasonable to expect that had she been mindful of the policy and what would have been seen as a technical breach of it at that stage, she would have gone to her locker and purse at the earliest opportunity and obtained the money and remitted it to her employer. She did not do that, even though she went to the locker and obtained the cigarettes. That conduct works against any conclusion that she had the intention to pay for the Easter Eggs at that time. The applicant, therefore, did not say any words to the effect of having an intention to pay, or act consistently with such an intention, at the earliest opportunities which she had to do so.
I have reservations as to the credit of the applicant because I do not believe the evidence in relation to her intention to pay. I also have reservations concerning the conflict in the evidence about whether or not there was an appointment for the meeting at 5 pm on the Friday. The respondent's version of that evidence is more consistent with the events of the day, particularly the consultations which took place between Steven Krnc and John Krnc that afternoon.
It must be said that in matters of this kind the value of the goods concerned is immaterial, and I agree with Mr Ritchie's submission in that regard. The matter may have been different if it could be seen that the Easter Eggs were in fact left overs for which the respondent had no useful purpose. That is not the case. The applicant's evidence left the Court with the impression that the seven Easter Eggs were useless because there were not enough of them to make up a $2 bag of Easter Eggs. However, the evidence for the respondent is quite clear, that the Easter Eggs sold separately for 15 cents each, and that the proper course in relation to the seven Eggs was that they be placed in the bin with the other Eggs which were available at the check out counter for individual sale.
The applicant no longer has the benefit of Section 170DE(2). I must say that but for the decision of the High Court to which I have referrred, my decision today may well have been very different for the applicant, because having regard to all the circumstances of the case, under Section 170DE(2) the subjective factors relating to the applicant would have been of some significance. It is my view that without Section 170DE(2) those factors cannot be taken into account once the Court is satisfied that there was a valid reason for the termination. It is regrettable that in one sense the applicant is the victim of the decision of the High Court. For all those reasons I must dismiss this application today.
I certify that this and the preceding 6 pages are a true copy of the reasons for decision of Judicial Registrar Linkenbagh JR as recorded in the transcript and revised by the Judicial Registrar.
The orders I make are therefore :
The application be dismissed.
Associate: Renee Cauchi
Date: 17 September 1996
Solicitors for the Applicant: Mr N J Gabbedy
Gary Robb & Associates
Industrial Advocate of the Respondent: Mr D Ritchie
Retail Traders Association
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CONDUCT - VALID REASON - PROCEDURAL FAIRNESS.
Industrial Relations Act 1988, ss 170DC, 170DE(1)(2), 170EDA.
State of Victoria -v- Commonwealth, High Court of Australia, unreported, 4 September 1996.
IRENE SCHAEFFER -v- DEALORE PTY LTD trading as HAWKER FESTIVAL (A.C.N. 062 304 849)
No. AI 1046 of 1996
CORAM: LINKENBAGH JR
PLACE: CANBERRA
DATE: 17 SEPTEMBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY AI 1046 of 1996
IRENE SCHAEFFER
Applicant
DEALORE PTY LTD trading as HAWKER FESTIVAL
(A.C.N. 062 304 849)
Respondent
Coram: Judicial Registrar Linkenbagh
Place: Canberra
Date: 17 September 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
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