Sinclair v All About Pumps and Pipes Pty Ltd
[2020] FCCA 479
•5 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINCLAIR v ALL ABOUT PUMPS & PIPES PTY LTD & ANOR | [2020] FCCA 479 |
| Catchwords: INDUSTRIAL LAW – Dismissal in contravention of general protection – whether applicant made a bona fide complaint under s.341(1)(c)(ii) – whether applicant took “sick leave” – applicant failed to establish that she made a complaint or took “sick leave” – “what if I’m wrong” test considered – respondent proved that adverse action not taken for a prohibited reason – application dismissed. |
| Legislation: Fair Work Act 2009, ss.341(1)(c)(ii), 342(1)(c)(ii), 352, 361 Fair Work Regulations 2009, reg.3.01 |
| Cases cited: Ratnayake v Greenwood Manor Pty Ltd [2012] FMCA 350 |
| Applicant: | VICTORIA SINCLAIR |
| Respondents: | ALL ABOUT PUMPS & PIPES PTY LTD & ANOR |
| File Number: | BRG 324 of 2019 |
| Judgment of: | Judge Vasta |
| Hearing dates: | 20 and 21 February 2020 |
| Date of Last Submission: | 21 February 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 5 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Jeffrey |
| Solicitors for the Applicant: | Adams Wilson Lawyers |
| Counsel for the Respondents: | Mr T. Spence |
| Solicitors for the Respondents: | O’Reilly Workplace Law |
ORDERS
That the Application filed 3 April 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 324 of 2019
| VICTORIA SINCLAIR |
Applicant
And
| ALL ABOUT PUMPS & PIPES PTY LTD & ANOR |
Respondents
REASONS FOR JUDGMENT
Introduction
Victoria Sinclair began working for All About Pumps & Pipes Pty Ltd on 23 February 2017. Neil Heaton, is, in effect, the boss and the person who runs this company. Ms Sinclair was dismissed from that employment on 30 January 2019. On 3 April 2019, she launched action, in this Court, alleging that her dismissal constituted adverse action as she exercised a workplace right to make a complaint, she took sick leave and she was discriminated against.
The employment of the Applicant
The Applicant gave evidence that she was employed as a shop assistant. Her duties involved opening and closing the store, managing stock and serving customers and assisting them with their enquiries regarding irrigation and water pump matters. She said that she first worked at the Nerang store of the Respondent company and then went to the Bundall store.
The Applicant gave evidence that, notwithstanding that there was a policy expressly prohibiting this practice, it was commonplace for the Respondent company to treat staff and regular customers in a different way when it came to irrigation works. She said that such persons were allowed to take goods from the store, figure out which goods were actually needed and then to bring back the goods that they did not use and pay for the ones that they did need.
The Applicant said that she allowed that to happen with a regular customer but that she saw other employees do the same thing. She identified those other employees as Peter Willoughby and Laurie Heaton (who is the wife of the Second Respondent). It has emerged in evidence that Mr Willoughby has a different position, in that his role is to make sales out of the store and that he has permission of management to do what he does. Mrs Heaton is also management.
The Applicant said that she was doing minor irrigation work at her home and she needed to obtain piping hoses connections and sprinklers. This was about 16 January 2019.
It transpired that the Applicant did take items from the store on 18 January 2019. It is instructive that, in her affidavit, the Applicant does not describe what she did and what her movements were in relation to the taking of the items.
The version of the Applicant
Her version only came out during her cross examination in this trial. She said that she was working at the Bundall store and was told by Mr Heaton to go home. She did not say why Mr Heaton told her to go home. She left the Bundall store and went to the Nerang store. The person on duty there was Mike Soini. Mr Soini had been an employee for just on three months at this time.
The Applicant said that Mr Soini was attending to a customer and that there was another customer who needed attending to. The Applicant decided to assist this other customer notwithstanding that her shift had already ended.
She said that, after she had finished serving the customer, she then grabbed a customer bag and began to take items that she needed. While she gave no evidence of this, she had raised an invoice for some piping.
The Applicant gave evidence that, a week later on 25 January 2019, she was at the Bundall store. She saw that Ms Debbie Lee, the administration officer, was speaking to a customer. She thought that it would be best that she assisted Ms Lee.
What was actually happening was that a customer had forgotten his customer code but needed to take goods. Ms Lee was trying to find the customer code whilst the customer, himself, was on the phone with his office in an attempt to also find the customer code.
When the Applicant offered her assistance, Ms Lee asked the Applicant whether she knew the customer’s customer code to which the Applicant replied that she did not off the top of her head. Ms Lee said words to the effect “well don’t worry leave it, we will sort it out”. The Applicant testified that Ms Lee said this in a sarcastic and demeaning way.
The Applicant said to Ms Lee words to the effect “you need to change your fucking attitude. I am sick of being bullied and belittled in this place by you and Neil, the way you lot treat me”. The Applicant said that Ms Lee then walked away and went to the office whilst she, the Applicant, remained on the shop floor.
The Applicant said that about half hour later, Ms Lee came back onto the shop floor. The Applicant approached her again and said words to the effect “I am sick of this you need to change your attitude. I am sick of being bullied and harassed here, you, Neil and Rick are always yelling at me. It’s got to stop. I can’t work like this”.
The Applicant said that Ms Lee said “if you want to discuss this we need to do it in the office not on the floor”. The Applicant then replied “you are really being a cunt to me”.
The Applicant said that at about 12:30pm, the Second Respondent approached her and the following conversation took place. At paragraph 17 of the Applicant’s affidavit, the Applicant recounts the following conversation:
Neil said,
What is the foul language in my shop?
I said,
‘Well, Debbie’
Neil spoke over the top of me and said,
‘No, no don’t blame her, why did you use foul language in my shop? It’s totally inexcusable. Last person who did that, they were sacked immediately in front of me. It’s no excuse to use any foul language. Why?’
I said, and Neil spoke over the top of me again,
‘Well’
Neil said,
‘No, no oh because I wanted to. Not good enough’
I said,
‘I’m not getting a chance to have a say here, am I?’
Neil said,
‘Yeah, well are you going to explain why you used foul language?’
I said,
‘Because apart from the whole story of how it all started, I tried to help this customer and she’s like this, and I was like, you’re treating me like a cunt. You really are.’
Neil said,
‘Well, if you use that language on anyone or you use it on me, you don’t have a job.’
I said,
‘Well you know she was treating me badly and using foul language just before Christmas.’
Neil said,
‘I'm on her side, not yours, you've got other things to answer to too’
I said,
‘Well, when do you want me to answer them?’
Neil said,
'Why are you eradicating invoices out of the computer?'
I said,
‘I haven't touched a’
Neil said, speaking over the top of me,
‘Yeah, I know but they should be billed out that day. Why are taking them and not billing them out?’
I said,
‘I needed to get a roll of pipe. I was at the counter serving someone right, you came in which you do all the time, 3 o’clock you’ve got to go, you’ve got to go, you’ve got to go and I’m like in the middle of serving someone. So you take over so I’m like oh shit, he just wants me out of here so I went to the Nerang shop and got some sprinklers. I said to Mike, which my weekend didn’t turn out that way, I said I’m going to use probably 10 of these but I’ve got 15 at home, right, because it’s low density. I don’t have a pump.’
Neil said,
‘Yeah but you didn’t write it down anything you’re taking stuff from the shop without writing it down now and that is theft to me.’
I said,
‘So now I'm a thief as well?’
Neil said,
‘No, I ... put it this way, it comes to trust. If I can’t trust you in the position you’re in, where do we go?’
I said,
‘No, look and I have not tried to get rid of that invoice, it’s sitting in my account waiting to be finished. So nothing has been deleted. It's there, one roll of density ...’
Neil said,
‘Okay, I’ll go and have a look. Well we’ll talk about what happened today.’
I said,
‘Well Neil, she’s got to stop being so rude.”
Neil said,
‘I’m sorry, I think you’ve ....’
I said,
‘I did not start it. I said, when he’s off the phone, I’ll remember the code of the customer, you know? She goes, well don’t worry about it if you don’t know, and I’m like Debbie, stop talking to me like this and then she’s this hand in my face. She’s written an incident report, read it. But there’s probably nothing in there about her behaviour.’
I said,
‘So it’s okay for you to constantly yell at us and hammer us, it is okay for you to physically grab a staff member like you did with Wes yesterday? You grabbed him on the arm’
Neil said,
‘Oh for Christ, what’
I said,
‘Well? Just saying, you know. I’m just putting it out there. You decide Neil. Oh God, now I'm a thief as well.’
The Applicant said that at 1:30pm she was called to a meeting with the Second Respondent and Ms Lee to discuss what happened earlier in the day. At paragraph 19 of the Applicant’s affidavit, the following conversation took place at that meeting:
Debbie Lee said,
‘Pull up a chair Pedro’
Neil Heaton pointed to a letter he had and said
‘This is the incident’
Debbie Lee said
‘Sorry, what’s Pedro doing here?’
I said
‘He is my ·work colleague.’
Debbie Lee said
‘Oh’
Neil Heaton said
‘Are you ready for that? And make any comments, on it so we can record it.’
I said
‘Yes.’
Neil Heaton said,
‘And read that one.’
I said
‘Yes’
Neil Heaton said
‘So you fully understand where you’re sitting’
I said
‘Yes, well I’ll have to obviously, you know, put my two bobs worth in about this.’
Neil Heaton said,
‘Yeah, well that's what this all about’
Debbie Lee said
‘That's what an incident report is about, okay, that’s one incident.’
Neil Heaton said
‘That's the next incident.’
I said
‘With this invoice, the issue you raised with me was that you said to me that I was hiding an invoice or tried to delete an invoice out of the system, of mine.’
Neil Heaton said
‘Well, okay, that was when I raised it and then you came up which I was waiting for you, they’re the parts you took?’
I said
‘Yeah’
Neil Heaton said
‘Then you got caught.’
I said
‘Yeah.’
Neil Heaton said
‘Yeah, that's illegal.’
I said
‘No okay, that's okay.’
Neil Heaton said
‘It’s like stealing that and walking away and saying, oh you’ve caught me, now I don’t want to use it, you can take it back. That’s what I’m saying.’
I said
‘No, no it wasn’t that at all and as I said to Mike on Friday, I said I don’t know if I’m going to use 10 or 15 of these sprinklers, so I’ll take what I think I may need.’
Neil Heaton said
‘It doesn’t matter, doesn’t matter.’
I said
‘Okay. Alright, that’s fair enough.’
Neil Heaton said
‘It’s taken from the shop; it’s company property.’
I said
‘Yeah, okay.’
Neil Heaton said
‘And it’s not recorded.’
I said
‘No, no that’s fine. I totally agree with that. I’m sorry I forgot to do it on Wednesday when I was going to do it anyway’
Neil Heaton said
‘Yep.’
Debbie Lee said
‘Right, is that the understanding too Rick mentioned there has been an email at some stage not by myself but by or someone that you don’t invoice yourself’
Neil Heaton said
‘Yeah you don’t invoice yourself you get someone else to do it.’
I said
‘Right, okay.’
Neil Heaton said
‘Because we had an incident where you put it on to Rick and that’s actually when I said, and that’s why you put it onto Rick, it all came out because it affected his bottom line.’
I said
‘'His purchases, right, okay.’
Neil Heaton said
‘It should have been allocated to you but his name still recorded, if he did it, but the whole thing, he should have recorded it, for you, not help yourself. That’s what ...’
I said
‘Yeah, well he was there when I paid for it and everything, yeah.’'
Neil Heaton said
‘Yep.’
I said
‘Am I being dismissed or just...’
Neil Heaton said
‘No.’
I said
‘Okay. No worries. Sure. I’ll go and get them. Okay, anything else?’
Neil Heaton said
‘No, that’s it.’
I said
‘Okay, Nothing else?’
Neil Heaton said
‘No, that’s it.’
Debbie Lee said
‘When do you want that list back from Vicky?’
Neil Heaton said
‘Oh you can bring it back next Wednesday.’
I said
Thanks. Okay.’
Neil Heaton said
‘Right, thank you.’
I said
‘Cheers.’
After the meeting, the Applicant was handed a written warning. The warning is contained in these terms in Annexure ‘VSI’ of the Applicant’s affidavit:
I refer to the incident report attached and hereby request you submit a list of all stock/items which have been removed from Gold Coast Sprinklers and/or All About Pumps and Pipes without documentation since your employment with this company.
Furthermore, we request both store keys be returned immediately as this matter has breached company trust and employee code of conduct.
The Applicant was not working the next day however attended the Bundall store and put a bag of items on the counter of the store saying to Mr Heaton that these were the items that she had taken. There were 238 items in all.
She claims that she then said words to the effect that she was going to seek medical advice for the stress she has been under and that she was now on stress leave.
The Applicant said that she attended her general practitioner and was given sick leave by that GP. The GP completed a WorkCover medical certificate which was sent to WorkCover.
The Applicant did not contact Mr Heaton or any other person at the Respondent company after she had returned the items.
On 30 January 2019, the Applicant’s employment was terminated.
The result of the version of the Applicant
Obviously, termination of employment is adverse action. The Applicant has proven that she was terminated.
The Applicant has pleaded that the Respondents terminated her employment because she made a complaint about Ms Lee, and/or because she took sick leave on 30 January 2019 and/or because she was discriminated by the Respondents in that she was suffering from a physical disability being an acute adjustment disorder. During final submissions, Counsel for the Applicant abandoned the claim relating to discrimination.
The first question I have to decide is whether the Applicant actually did make a complaint. Section 341(1)(c)(ii) of the Fair Work Act 2009, (“FW Act”) provides that a person has a workplace right if the person is able to make a complaint or enquiry in relation to his or her employment. The Applicant claims that she made a complaint to Mr Heaton about Ms Lee.
This was not what was pleaded in her application. During the reply submissions, Counsel for the Applicant applied for leave to amend the pleadings so that the pleadings would include that the Applicant made the complaint to Mr Heaton.
Of course, if the complaint were not made to Mr Heaton, he could not know about it. If he did not know about it he could hardly have it in his mind when he made the decision to dismiss the Applicant. Given the way that the trial had been run, it seems to me that there was no prejudice to the Respondents if the amendment were made.
The complaint, itself, though is inchoate with no specifics or particularity attached. According to Mr Heaton, the complaint consisted of words to the effect that the altercation, in which the Applicant used profane language, was the fault of Ms Lee coupled with a suggestion that Ms Lee had a personal issue with the Applicant. According to the Applicant, the complaint was that Ms Lee “was treating me badly and using foul language just before Christmas” and that Ms Lee has “got to stop being so rude”.
The Applicant contends that this “complaint” is caught by the definition in s.341(1)(c)(ii) of the FW Act. The Applicant contends that, by the words that the Applicant did use and by her conduct, she was implicitly making a complaint about a fellow worker. The Applicant contends that this situation is analogous to the situation that obtained in Ratnayake v Greenwood Manor Pty Ltd [2012] FMCA 350 where Judge Riley (at [117]) ruled that what was said by an Applicant in that case amounted to a “complaint”.
In Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271, Dodds-Stretton J said, at paragraph 630, that:
To hold that all conduct and communications come under the aegis of a valid complaint with which they are contemporaneous or associated would effectively prohibit an employer from taking adverse action against an employee for misconduct because it was coupled with a complaint or inquiry that the employee was able to make. An employee could, for example, make mischievous, baseless and damaging accusations of misconduct in the workplace against other employees in an abusive or threatening manner, yet the employer would be prohibited from taking adverse action to discipline or restrain the complainant, even where necessary to do so in order to protect other employees. A provision aimed at the protection of workplace rights should not operate to secure immunity from the consequences of misconduct.
When the matter went on appeal, (Shea v Energy Australia Services Pty Ltd [2014] FCAFC 167) the Full Court did not disturb the observations that had been made; however, neither did the Court endorse those sentiments. At paragraph 12, the Full Court said:
Considerable care needs to be exercised before implying into s 341 any constraint that would inhibit an employee’s ability to freely exercise the important statutory right to make a “complaint”. To too readily imply into the language of ss 340 and 341 the necessity for a complaint to be a “genuine” complaint, necessarily would be productive of argument about whether a “complaint” is bona fide and may serve to discourage those who may well have mixed motives for making a complaint. The expression or drafting of a “complaint” should not require the sophistication or knowledge of an experienced industrial lawyer or legal advice regarding whether it should in fact be made. Care should also be taken before construing the term “right” in s 341 in a manner which may have more far-reaching implications for the meaning of that term when it is employed elsewhere in the Fair Work Act. When considering the construction of these provisions, there is an obvious need to balance the legitimate interests of both employees and employers in a manner consistent with the objects of the Act as a whole and the objects of Part 3-1.
In TheEnvironmental Group v Bowd [2019] FCA 951, Steward J conducted an analysis of the authorities dealing with the notion of a “complaint”. His Honour said, at paragraph 145, that he was:
…not bound to reject the implication drawn by Dodds-Streeton J that only complaints made in good faith fall within s 341(1)(c)(ii). However, such an implication should only be made after exercising, to use the language of the Full Court, “considerable care” and not “too readily”.
His Honour said, at paragraph 148, that:
In my view, for the purpose of construing s 341(1)(c)(ii), there is no reason not to imply a similar limitation, namely that if a complaint is to qualify for protection it should be made in good faith and for the purpose for which the right to make such a complaint was conferred. Parliament could hardly have intended that the maker of a dishonest complaint, or one otherwise made in bad faith, should be entitled to the protections offered by Div 3 of Pt 3-1 of the FW Act…
Did the Applicant make a “complaint”?
In this case, Mr Heaton conceded that the Applicant did make a complaint in that the Applicant suggested that Ms Lee had a personal issue with the Applicant. But that was as far as it went. Mr Heaton said in evidence that the complaint was not further developed and that the Applicant did not really detail what the complaint was.
The context of the Applicant making the complaint was that Mr Heaton was wanting an explanation from the Applicant as to why she used “foul language”. It was an attempt by the Applicant to justify her own deplorable behaviour by trying to shift the focus to Ms Lee. Mr Heaton said that, because the complaint was not detailed by the Applicant, he did nothing about it.
The Applicant had never raised any such issue with Ms Lee before. No other staff member called to give evidence was able to, in any way, support the complaint of the Applicant. Ms Lee gave evidence that the first that she knew that the Applicant was, in any way, unhappy with her was when the Applicant said words to the effect “you better change your fucking attitude”.
When Ms Lee invited the Applicant to come into the office and discuss these issues, the Applicant walked away and called Ms Lee “a cunt”.
In those circumstances, it is very difficult to see how this “complaint” could ever be characterised as being “bona fide”. The angry words used by the Applicant occur when Ms Lee tells her that she has the situation (with the customer) under control. There was no lead up or evidence as to what was the “attitude” that needed to change.
When asked to actually talk to Ms Lee, the Applicant declined and walked away using a profanity to describe Ms Lee. If the complaint were “bona fide”, it would be expected that the Applicant would have taken Ms Lee up on her offer to air her grievance. The fact that she did not is illustrative of the fact that there was no substance to what the Applicant was saying about Ms Lee.
But all this does is to give some guidance as to whether the Applicant was truly “complaining” when she said what she said to Mr Heaton. The complaint was not particularised. The Applicant did not expand upon how it was that Ms Lee was rude or how the altercation was the fault of Ms Lee. The Applicant was trying to distract Mr Heaton from her own appalling behaviour.
I have looked at this aspect by exercising “considerable care”. I have not come to this conclusion readily. I have taken into account all of the evidence of the witnesses and especially the manner in which they have given their evidence.
In the end, having regard to all of the evidence and looking at all of the authorities, I conclude that the Applicant did not make a “complaint” as that term is defined in s 342(1)(c)(ii) of the FW Act.
Sick leave
The Applicant has pleaded that the Respondents breached the FW Act by terminating the Applicant’s employment, because of a temporary absence due to illness or injury, in breach of s.352 of the Act.
That section reads as follows:-
Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Regulation 3.01 of the Fair Work Regulations 2009 (“the Regulations”) reads as follows:-
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
(3) A prescribed kind of illness or injury exists if the employee:
(a) is required by the terms of a workplace instrument:
(i)to notify the employer of an absence from work; and
(ii)to substantiate the reason for the absence; and
(b) complies with those terms.
(4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.
The Applicant contends that when she returned the 238 items on 26 January 2019, she said to Mr Heaton words to the effect “on advice I am going to seek medical advice for the stress I’ve been under here at work, I am now on stress leave”. Mr Heaton said that the Applicant placed the items on the counter in front of him and said words to the effect “here are those things. I won’t be in Wednesday as I’ve been advised to go on stress leave”.
In those circumstances, it is difficult to see how the illness or injury claimed by the Applicant is of a kind prescribed by the Regulations. The Applicant conceded that she had not provided the Respondents with any information, let alone a medical certificate, statutory declaration or evidence, that she was suffering stress and needed to be on leave because of illness.
The Applicant simply declared that she was going to be on stress leave on Wednesday, 30 January 2019. It is trite to say that the Applicant has no medical qualifications such that she can self-diagnose.
It was pointed out by the Applicant that the termination came before the Applicant had any opportunity to provide such certificate, statutory declaration or evidence. It was also pointed out that there was no need for her to provide such material until the expiration of 24 hours after the commencement of the absence.
While those may be valid observations, they simply reinforce that the Applicant did not have an illness or injury of the kind prescribed by the Regulations at the time of dismissal.
In those circumstances, s.352 does not apply.
The result
It follows from my findings as to the “complaint” and the s.352 matter, that the Applicant has not proved the existence of facts that are necessary to establish her claim.
The application must be dismissed.
The “What If I’m Wrong” test
Notwithstanding the conclusion to which I have already come, I will nevertheless consider the merits of the claim as if the Applicant had established that she had made a valid “complaint” and/or her illness was of a kind prescribed by the Regulations. In colloquial terms, I am conducting the “what if I’m wrong” test.
If the Applicant had established her claim, the provisions of s.361 would then apply; it would be for the Respondents to prove to me that they did not terminate the Applicant, even partly, because of those reasons.
The Second Respondent gave evidence that the sole reason he decided to dismiss the Applicant was because he had formed a view that her conduct amounted to theft.
Credibility of witnesses does play a role in my ascertaining of the facts.
I watched very carefully how the Applicant gave her evidence in the manner and tone with which she delivered her answers. I watched her body language in the witness box.
I did not find her to be a witness of great credit. The best example of this was the manner in which she dealt with the Respondent’s contention that she had been made aware of, and therefore knew, the policies and procedures of the Respondent company.
It was put to the Applicant that she had been trained in the policies and procedures of the Respondent company. She agreed with this. She was then shown a blank copy of the employee handbook. The last page of that handbook has a section where an employee signs to acknowledge that they have received a copy of the handbook and have understood the policies (annexure NH2 to the affidavit of Neil Heaton).
The Applicant was then shown a copy of that last page where she had signed (annexure NH3 to that same affidavit). The Applicant said that she signed that page but did not receive the handbook. It was later asked of her why she signed an acknowledgement that she had received something when she did not. Her reply was that she received another handbook but not the one that was annexure NH2. I asked her where that document was and she answered that it was “at home”. She said that she had not alerted her legal representatives as to its existence.
I found that explanation to be quite dishonest and it was obviously one that she created on the spot. The handbook outlines policies of the Respondent company. It defines that “serious misconduct” includes theft. The Applicant knew from the time that she received the affidavit of Mr Heaton that it would be alleged that she knew that the Respondents treated theft extremely seriously. She knew that the Respondents were alleging that she had been given this handbook and that this handbook made such a position very clear.
Yet the Applicant contended that she was given a different handbook which was not set out like annexure NH2. But she did not tell anyone this until she did so in the witness box.
There were two other policy memos that the Respondents said that the Applicant was given. The first (annexure NH4) advised that no goods were to leave the premises unless they have been paid for or were on an authorised account. The second (Annexure NH5) advised that refunds or exchanges would not happen without a proof of purchase.
The Applicant was a very coy about acknowledging that she had seen these memos. She gave evidence that she did not get a copy of the memos. Yet the two documents show that she has signed that she had received a copy.
Again, I found that the response of the Applicant was dishonest. Her actions were an attempt by her to distance herself from knowledge as to the policies of the Respondent company. It is obvious to me that the Applicant knew that any practice of taking goods away without paying for them, especially if there was no written notation as to what goods had been taken away, was contrary to company policy and, therefore, dishonest.
The Applicant has contended that the Respondents could never have considered that her actions amounted to theft. The Applicant contended that there was a practice that, with regards to an irrigation job, staff or trusted customers were permitted to simply take whatever items they wanted and decide, at their irrigation site, which of the items were ones that suited their purpose. They would then return the items that they did not want and pay for the ones that they actually used.
To corroborate this claim, the Applicant called another employee, Stephen Parnell, to give evidence. Mr Parnell gave evidence that this practice did occur but that it was frowned on by management. He conceded in cross-examination that it was prohibited by management.
However, no other staff member said that this practice was ever followed. Neither the Applicant nor Mr Parnell named any customer for whom such a practice was allowed. Mr Parnell said that he witnessed this occur on a fairly regular basis and on enough occasions that it would be impossible for him to list each one; but he could not list any time that this had happened and identify a customer. Mr Parnell gave examples of Mr Willoughby and Mr Heaton doing this.
Earlier in these reasons I noted that Mr Willoughby had permission to do this because of the duties that he had and Mr Heaton was management and was allowed to do what he wanted.
Given the evidence of the policies of the Respondent company (contained in annexures NH4 and NH5), the fact that no other employee accepted that this practice occurred and that Mr Parnell did not identify any customer who had been the beneficiary of this practice, I reject the evidence of Mr Parnell and the Applicant that there was any such practice.
Common sense also dictates that such a practice would be sheer madness. With such a practice, stock would leave the store without any record. Such a practice would play havoc with cash flow and stock supply.
Still, it must be remembered that the Applicant did not bear any onus to prove to me that she did not engage in theft. All the evidence that she and Mr Parnell give on this topic can only go to putting doubt on the version given by Mr Heaton such that the Court would not be satisfied that Mr Heaton had discharged his onus.
I generally found Mr Heaton to be a credible and honest witness, though he was not always the most reliable witness. He may be thought of as being “unsophisticated” but in that “un-sophistication” was an innate honesty.
The evidence of the Respondents was that Ms Lee, as administration officer, noticed an invoice made out to the Applicant which had not been paid. The invoice was for a piece of pipe and it was dated 18 January 2019. It was from the Nerang store and not the Bundall store where the Applicant usually worked.
Ms Lee then made enquiries with Mr Soini who was the only person on duty at the Nerang store at the time that the Applicant took the goods.
Mr Soini said that the Applicant arrived at the Nerang store and said that she had finished her shift and was going to get some irrigation material for her home but that Mr Heaton had told her to go home. Mr Soini was serving customers and noticed the Applicant walking around the shop collecting items and putting them in her bags. He noticed that she picked up some pipe which she took straight to the car.
He said when she had finished, she placed the bags on the counter and that he started to go through the bags so that he could write the goods in the book. He said that the Applicant told him that she had already started an invoice for them. Mr Soini found an invoice under the Applicant’s name but noticed that only one item had been recorded. He questioned the Applicant about this and she explained that she was not sure if she was going to use all of the items and would return any that she did not use.
Mr Soini recalls that she said “if I wanted to steal these things I could but I’m not like that”. Mr Soini noted that, in the past, the Applicant had always recorded items that she had purchased and paid for them which was in accordance with policy. Mr Soini said that he made a mental note to check the invoice again in the coming days to see whether the Applicant had recorded more items.
Ms Lee notified Mr Heaton as to what Mr Soini had told her. Mr Heaton said that he concluded that this conduct, if true, was in breach of the policies of the Respondent company. Mr Heaton also remembered that he had been working with the Applicant on 18 January 2019 and that she had not asked for any approval to take stock.
On 25 January 2019, Ms Lee informed Mr Heaton of the exchange that she had had with the Applicant where the Applicant had used foul language. When Mr Heaton returned to the store he scheduled a meeting with the Applicant and Ms Lee.
Mr Heaton, by and large, agreed with the gist of what the Applicant said occurred in the meeting. He said that the Applicant admitted that she had taken a large number of items and had not invoiced them or recorded the items that she took. He said that she told him that she had taken a pipe and some sprinklers and that the invoice she generated for these items had not been deleted but had not been completed. She admitted that she had not recorded the items she took because she had not used all of them.
Mr Heaton reminded her that this was against the policies of the Respondent company and the Applicant apologised.
Mr Heaton conceded that the Applicant asked her if she was being dismissed and he replied “no”. He said that this was because he was still in the process of investigating the issue and had not made up his mind. He said he wanted to see a list of the items that she had taken and then consider the matter.
He said that he issued the written warning and wanted to give the Applicant an opportunity to comply with the directions contained therein.
He said that when the Applicant attended the store and placed 238 items of stock on the store counter and then left, he drew the conclusion that the Applicant had attempted to steal the stock. He made the decision there and then to dismiss the Applicant for serious misconduct.
Because the next day was a Sunday, the Monday was a public holiday and Ms Lee was not in the office on the Tuesday, Mr Heaton said he waited until the Wednesday for Ms Lee to type up the letter of termination.
He gave evidence that the sole reason he decided to dismiss the Applicant was because he had formed the view that her conduct amounted to theft. He said that he did not dismiss her for any other reason.
It has been submitted by the Applicant that I would not accept this evidence and would find that the Respondents have not discharged the onus. The Applicant pointed to the inconsistency with which Mr Heaton spoke of the dates as to when he began to form suspicions. The Applicant pointed to inconsistencies as to when Mr Heaton said he had a conversation with Mr Soini.
Whilst there are inconsistencies, I am of the view that Mr Heaton was somewhat confused when he spoke of the dates upon which certain things occurred. It is for this reason that I have already described Mr Heaton as not always being the most reliable witness. But it has not caused me to have doubts as to his credibility and the general reliability of his evidence, especially where it has been corroborated by other witnesses, especially Mr Soini and Ms Lee.
It was submitted by the Applicant that all disciplinary action with regard to the taking of the items had been settled by the warning letter given to the Applicant on 25 January 2019. All that was needed was for the Applicant to bring back the items and to give a list. She did not need to give the list until 30 January 2019.
The Applicant submits that on 26 January 2019 the issue regarding the taking of the items was not a live issue. But the issue of the complaint was a live issue. And when the Applicant left the store and said that she was now on stress leave, this was now a live issue.
The Applicant submits that these live issues were the reason that the Applicant was dismissed. The Applicant pointed to the fact that Mr Heaton could have dismissed the Applicant on Friday 25 January 2019 but did not do so. The Applicant also pointed to the fact that Mr Heaton conceded that he did not view what was in the affidavit of Mr Parnell as misconduct that warranted disciplinary action.
I reject these submissions. There was nothing in the conversation that occurred on 25 January 2019 that indicated the extent of what the Applicant had taken. In that conversation, the Applicant did not say that she thought that what she did was acceptable practice; she did not point to the actions of Mr Willoughby or Mr Heaton’s wife to justify what she had done; and, she did not mention that she and Mr Parnell had engaged in similar behaviour before.
I accept the evidence of Mr Heaton when he says that the sole reason that he dismissed the Applicant was because he formed the view that her conduct amounted to theft. He has said (though not as succinctly) that the reason he formed this view was:
i)the Applicant did not say anything to Mr Heaton about taking stock on 18 January 2019;
ii)the Applicant went to the Nerang store and did not take goods from the Bundall store where Mr Heaton was;
iii)the Applicant prevailed upon a junior employee to accept that what she was doing was acceptable;
iv)the Applicant generated an invoice for one item only;
v)the Applicant did not record the items that she did take except for the piece of pipe;
vi)between 18 January and 25 January 2019, the Applicant did not complete the invoice;
vii)between 18 January and 25 January 2019, the Applicant did not pay the invoice;
viii)between 18 January and 25 January 2019, the Applicant did not return any items;
ix)the sheer amount of items that were taken (238) together with the above circumstances, lead to no other conclusion.
Having accepted the evidence of Mr Heaton, I am satisfied that he terminated the employment of the Applicant because he viewed her actions as amounting to theft. For these reasons, the Respondents have discharged their onus.
I dismiss the application.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 5 March 2020
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