Stankiewicz v Woolworths Vic Pty Ltd
[1996] IRCA 303
•09 July 1996
DECISION NO: 303/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - misconduct - pilfering - video surveillance - video tape shown to applicant by police - second video tape viewing offered by Respondent but declined by the applicant
Industrial Relations Act 1988 ss. 170DC, 170DE, 170EA
CASES:
North v Television Corporation Ltd (1976) 11 ALR 599
Laws v London Chronicle (Indicator Newspapers) Ltd (1959) 2 All ER 285
Gibson v Bosmac Pty Ltd (1995) 130 ALR 245
Nicolson v Heaven Earth Gallery Pty Ltd (1994) 1 IRCR 199; (1994) 126 ALR 233
Lowe and Herr and AFMEU v ACL Bearing Company, IRCA (unreported) 15 February 1995, Decision 34 of 1995
Briginshaw v Briginshaw (1938) 60 CLR 336
STANKIEWICZ -v- WOOLWORTHS VIC PTY LTD
No. VI-4016 of 1995
Before: Ryan J R
Place: Melbourne
Date: 9 July 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-4016 of 1995
B E T W E E N :
JANEK RICHARD STANKIEWICZ
Applicant
AND
WOOLWORTHS VIC PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 9 July 1996
THE COURT ORDERS:
That the application be dismissed
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-4016 of 1995
B E T W E E N :
JANEK RICHARD STANKIEWICZ
Applicant
AND
WOOLWORTHS VIC PTY LTD
Respondent
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 9 July 1996
REASONS FOR JUDGMENT
THE CLAIM
The Applicant claims unlawful termination of employment. He worked on the nightshift as a storeman (on light duties) in the Safeway Distribution Centre in Mulgrave.
THE TERMINATION
The Respondent terminated the employment of the Applicant on 14 July 1995 on the grounds of misconduct.
THE WORK
The Applicant worked in the reclaim area. This was a warehouse department which received damaged and broken goods returned from the warehouse proper and from the Respondent’s numerous supermarkets in Victoria. Where practicable, damaged goods and undamaged goods with damaged packaging were repacked and recycled from this area. Spoiled, defective goods and packaging were also processed in the reclaim area. Some damaged goods were placed in bins for waste disposal. Others were placed in bins for distribution to charitable organisations.
VIDEO SURVEILLANCE AND POLICE INVESTIGATION
The Respondent was concerned about pilfering, especially in the reclaim area. Video cameras were installed in this area. As a result of suspicious activities recorded on video film, 16 or 17 employees were interviewed by police and/or security staff.
THE INTERVIEWS 13 JULY 1995
On 13 July 1995 the Applicant was interviewed by police and he was shown video film of his activities in the reclaim area on 19, 20, 21, 22, 25, 26 and 29 June 1995.
That evening when he attended for his usual nightshift he was interviewed again. This interview was conducted by Mr Steve Murphy, State Security Manager, Safeway and Mr Michael John Vaughan, a Security Investigator with Safeway. Messrs Murphy and Vaughan gave evidence that a union representative, Mr John Nowland, was present at this interview. However, they appear to be mistaken. Mr Murphy maintained the position in cross-examination that Mr Nowland was present at the first interview but Mr Vaughan at times in cross-examination conceded that he had no clear recollection and would need to check the tape to confirm whether Mr Nowland was present. Mr Nowland was present at a second interview the next day, 14 July 1995. There is no evidence in the transcript that there was any other person at the interview with the Applicant on 13 July other than Messrs Murphy and Vaughan. However the Applicant stated in evidence that another union representative, Mr Kevin Bolton, was present at the first interview. He also gave evidence of speaking to Mr Nowland before the first interview. In fact there is clear evidence on the bottom of page 10 and the top of page 11 of the transcript that at the next meeting on 14 July Mr Nowland acknowledged that he was not present at the interview on 13 July.
The interview on 13 July commenced at about 10 pm. Mr Vaughan introduced Mr Murphy to the Applicant and formally warned the Applicant that he was not obliged to say anything and that anything he did say could be given in evidence.
The parties agreed that the transcript of the interviews on 13 and 14 July (Exhibit R1) is generally but not entirely accurate. The transcript was prepared from a tape and there are some segments where the transcriber has been unable to decipher and record certain words. However, in general, the transcript appears to be a reasonably comprehensive and accurate record of both interviews with more numerous “indecipherable” notations near the end where several people appeared to speak at once.
Once the Applicant had been given a warning he referred to the fact that he had been to the police station that afternoon. Mr Vaughan responded:
“I am not interested in that...for the time being, I will be treating this as a completely separate issue...I am not interested in what the police have done. Just to bring you up to date with what’s happening, over the past few weeks we’ve been aware of a problem within the reclaim area within the grocery warehouse. Because of the problems that we’ve faced we’ve decided to put in two covert cameras. On the videos that we have seen there is quite a lot of things that are of concern to us and, as a result, that is why we are running through the processes that we are at the moment. What I would like to do is...there are video tapes that are available to you should you want to view them. Do you want to have a look at those tapes?”
The Applicant:
“I’ve already seen them. The matter has already....”
Mr Vaughan:
“Right, you’re quite happy with that”
At this stage the Applicant indicated that he had seen video tape in the police station and that two episodes on the video tape referred to magazines which he was putting in his back pocket and he implied that the staff had a practice of picking damaged magazines up from the floor and taking them home to read them.
The Applicant then referred to another incident which is recorded on video tape and relates to a security guard being provided with coffee, tea and sugar.
The transcript of the interviews on 13 and 14 July does not identify who is speaking at any particular time. It is not always possible to identify the speaker. It is usually clear when the Applicant is responding. It is also clear when someone other than the Applicant is speaking.
After the Applicant has referred to the incidents involving “the magazines” and the “security guard and the tea and coffee”, either Mr Vaughan or Mr Murphy referred to an incident “on 19 June at 1:32 in the morning”. It is quite obvious from a comment soon thereafter that the Respondent’s representatives are using a running sheet, a copy of which was tendered as part of Exhibit R2. This running sheet identifies specific times of incidents recorded on film on 19, 20, 21, 22, 25, 26 and 29 June 1995. The running sheet identifies video tapes initially numbered 2, 4, 5, 6, 7, 8 and 10. However, a consolidation of video tapes was tendered as one tape which, together with the running sheet, was marked Exhibit R2.
Mr Vaughan or Mr Murphy appear to have shown a copy of the running sheet to the Applicant and, in respect of the running sheet and the video tape incidents shown to the Applicant earlier on 13 July, the following comment is recorded and is obviously addressed to the Applicant:
“They (i.e. the police) have a similar sheet to this. John*, I guess, sorry, what we are getting around to is obviously there is a problem down there ...it would appear to us that there has been an amount of dishonesty occurring and we want to know if you want to comment to us about that type of thing or any activities that you have been involved in”
(* The Applicant Janek Richard Stankiewicz is referred to as John)
The Applicant responds as follows:
“Oh well the police, as I said to the police...disregard what I told you about it because I think I should be run in for that. ....you know I have taken a muesli bar from the floor. I’ve picked that up, yeah.”
The Court notes very clear admissions by the Applicant in his evidence in the hearing in respect of the incident recorded on video on 21 June at 5:33 am onwards. He claims that what he took at that stage was two muesli bars and that he ate them later in the canteen at about 5:45 am. The Court also notes that the Applicant is depicted breaking open a packet, backing away, looking around and placing several (more than two) items in his pockets and then throwing the empty package away. The Applicant also claimed in evidence that he needed the muesli bars to take with medication, i.e. medication to relieve pain of an earlier work related injury.
Either Mr Vaughan or Mr Murphy then state:
“But apart from that there’s other incidents where....”
The Applicant intervenes as follows:
“Well, can you, can you go through them because I don’t know whether they’re the same ones from police...”
The response is as follows:
“They’re the same incidents...they are exactly the same...the police, as I said, the police have a copy of that...if that’s what you are saying. It would have been most likely the tapes would have been in that order also...I can’t guarantee that but that is the sheet they have”
Again, this reference by either Mr Vaughan or Mr Murphy seems to be to the running sheet which is part of Exhibit R2 and it is then put to the Applicant that on
“19/6 at 4:57 am....putting packages in your pockets...trying to remember incident that was dated...it’s not going to be possible for you unless you’ve got a very good memory”
The Court certainly agrees with that comment from Mr Vaughan or Mr Murphy that the Applicant would need a very good memory to accurately or effectively recollect all the various incidents purely by reference to a time and date on a running sheet and without the opportunity to review the incidents once more on videotape. However, the Court also notes that the Applicant had been through the video film with the police a few hours earlier and the Applicant responded as follows:
“No, I think that was the one that taking packages off my table...they were magazines and the police said they would try to enhance that video because there was magazines, of all the magazines in the salvage. Well I’m putting them in there...that’s the one where I did not try to hide it...I tried to put it in there and it wouldn’t fit so it put the roll down there and I did not try to hide it”
These comments by the Applicant were made without the Applicant being afforded an opportunity to view again the video tape. Nevertheless, the comments constitute an admission that certain magazines described as “magazines in the salvage” were placed in the Applicant’s clothing and he states twice “did not try to hide it”.
Immediately after these comments the Applicant states:
“where you got me there, today from what the police were saying um was the drink situation, the cleaners weren’t allowed to take drinks. Right, taking a drink off...I’ll be lumbered for that”
Again, this may or may not be a reference by the Applicant to an incident on the running sheet but, whatever the context of the reference, this statement constitutes an admission by the Applicant to taking a drink without authorisation and he stated, “I’ll be lumbered for that”.
Vaughan or Murphy:
“John, would it be, would it be fair to say that on some occasions um you’ve taken packets of stock from trolleys or the shelving in the reclaim area and opened them up and taken those products”
Applicant:
“Most of them are damaged. I don’t open them up. The boxes have been damaged.”
Vaughan or Murphy:
“Well, what damaged boxes and you have opened them up and taken those items?”
Applicant:
“Well, according to the video, obviously yeah”
Vaughan or Murphy:
“Is that right? Is that...I’m asking you...I’m not saying according to the video, is that right that on occasions um you’ve obviously taken packaging from the shelf of products and opened those boxes or packets and put the contents um in your clothing?”
Applicant:
“Haven’t the police already got the answers to that?”
Vaughan or Murphy:
“Is that true?”
Applicant:
“Yeah”
Vaughan or Murphy:
“And what have you done with those items that you’ve taken out of the packaging?”
Applicant:
“...a tea break as I said to the copper...I’m bloody hungry and it was a damaged muesli bar”
Vaughan or Murphy:
“Is it common practice down there John?”
Applicant:
“Is it, that’s not for me to say I’m not actually no...”
Vaughan or Murphy:
“We’ve got to ask these questions anyway. I should say again...you don’t have to answer and we’re certainly not going to try and force you to answer questions, no that’s up to you”
Applicant:
“As the police said, you know, we’ve got you on video, and I said well you might have me but oh well that’s not my job to tell on anyone else”
Vaughan or Murphy:
“Yeah. The products, some of these products...have you ever taken them outside the site?”
Applicant:
“Well, the muesli bar I usually eat there, you know to have for a snack”
Again, despite the obvious difficulties in interpreting responses from the Applicant in a situation in which the Applicant is responding to questions about incidents which are not being shown to him again on video, the Court is of the view, having carefully considered these responses and viewed the consolidated video tape on several occasions, that these comments from the Applicant constitute admissions that:
he has taken packets of stock from damaged boxes and he uses the words “according to the video, obviously yeah”
he has taken packaging from the shelf of products and opened those boxes or packets and put the contents in his clothing
he has consumed a damaged muesli bar at a tea break
“you might have me but...that’s not my job to tell on anyone else”
The next part of the transcript of the interview on 13 July (page 5) contains a further admission about consumption of a muesli bar and an indeterminate reference to the incident involving a security guard and tea and coffee.
On page 6 of the transcript there is, in effect, an admission that some unspecified items were taken from the reclaim area and no payment was made for them. The exchange is as follows:
Q:These things that you took from the reclamation area, have you ever paid for them?
A: No
Q: In relation to stock, are you allowed to take it and consume it?
A: Well obviously, obviously not.
Similar but more specific admissions appear on page 7 of the transcript as follows.
Q:I think its pretty fair to say isn’t it John when you have a look at the tape and you’ve seen them yourself, if it was the done thing, and the accepted thing, wouldn’t you have been more inclined to take it off the rack and walk out with it in your hand, and not worry about who might be around to see...rather than...sort of..take it and have a look around and stick it in your pocket?
A:Yeah, fair comment.
Q:Is there anything else you (can) tell us about these incidents John that occurred down there in that area? ....anything in general, just if there is anything else you want to tell us.
A:As I’ve said to the police, obviously I wish I hadn’t done it now, but apart from apologising, what can I say? I can apologise and well...that a second chance is given but I doubt it very much.
Q:What action do you believe the company should take?
A:The way the company treated me and my injury I can’t imagine what they’re going to do...I’ve been with the company six odd years and knowing the way that they treated people in the past, and knowing the way that they treated me over the last two years, I can guess what they’re going to do.
Q:Well, we’ll just narrow it down onto this occasion, or what options do you think are open to the company as far as the incidents...?
A:Well, the maximum would be the sack, wouldn’t it?
On page 8 of the transcript of the interview on 13 July the Applicant deals with a series of questions asked by either Mr Vaughan or Mr Murphy in which the Applicant is asked to put himself in the position of the company and express a view as to what the company should do. The Applicant’s response is the following:
“If I was in your position I would...before getting...what’s happened to me obviously I don’t think I’m the only one that’s been nicked, before sacking I would maybe...oh well like I was going to say for me, maybe give a second chance or I doubt it, I doubt very much if you’re going to do that.”
There then follows an exchange in which the Applicant is asked whether there is anything else that he wants to say and he indicates that “no that’s about it” and there is then a discussion about the Applicant going interstate and arrangements are made for the Applicant to attend for a further interview at 11 o’clock on 14 July. Initially, Mr Murphy suggested a tentative time of 10 am but the Applicant responded:
“I’ve got to call the union and all that and that takes half an hour to get here so can we make it 11 am? Is that alright, it will just give me an extra hour?
Mr Murphy responded as follows:
“Yeah, alright John...consider yourself suspended as now, alright it’s on full pay, it’s no loss of pay to you. The suspension will be until at this stage 11 o’clock tomorrow being Friday when you will be returning back to this office.”
The interview then concluded as follows:
“Are you quite happy with that John?”
“Yes”
“Are you happy with the way it’s been run?”
“Yeah”
“Can’t think of complaints, mate?”
“No”
“Okay, thanks guys, what we’ll do, we’ll just arrange for one of the guards to come up and just walk you back down to your car, okay, so we’ll get him called up, so if you want to wait down in the foyer. Just for the purpose of the exercise do we all agree that it is about nearly 17 minutes past 10?”
“Okay”
“Thankyou”
THE TERMINATION INTERVIEW 14 JULY 1995
The transcript of the second interview indicates that this interview began at about 11:08 am on 14 July 1995 and that the Applicant and Messrs Murphy and Vaughan were again present and that, on this occasion, Mr David Whillas, the manager of the Mulgrave Distribution Centre, and Mr John Nowland, a union representative, were also present.
At the beginning of the final interview, Mr Murphy or Mr Vaughan (probably the former) went back in summary form over the interview the previous day. It was put to the Applicant that the police had spoken to him.
Murphy or Vaughan:
“Right, just to recap where we were...last night...we’re in a situation where John had told us, and you correct me if we’re wrong, John, but the police had spoken to you and had put a number of allegations to you and on some of those points you had agreed to in relation to removing things like muesli bars and Le Snack items from packaging and consuming...to sum it up very quickly you said that you knew that wasn’t the done thing and it was the wrong thing to do but it was just one of those things that happened down there. Have you got anything further to add to that situation now?”
Applicant:
“No, cause none of its changed.”
Murphy or Vaughan:
“Alright, because of what’s taken place down there, and your admissions to us last night of your involvement in that, obviously it does constitute serious misconduct and may well lead to your dismissal from the company. Now is your opportunity, right, to have any input into the situation, on what we should do, and I would appreciate your input if you have got anything to say.”
Applicant:
“Well, as I said last night, in the light of what’s happened...can only apologise. I don’t whether you feel about giving a second chance but, if not, I think that I should be treated the same as other people. Only, up to date, I’m the only one that’s been questioned by the police. It’s not fault of anyone but I think that you know I mean I don’t want to be made the scapegoat.”
Murphy or Vaughan:
“Alright, if I just clarify a few things to you. Yes, we have considered all our options over night. We’ve had ample opportunity to do that, given that you haven’t got anything further to add, we will continue down the path that we made a decision on. In relation to the others, you’re right the only people spoken (to) is yourself and the security guard. They’ve been spoken to by the police. You will not be treated any different to any other person in this situation and, in due course, the police will speak to the other people involved. Safeway aren’t in a position to control that situation and it may well be another week before they get around to doing that. That’s unfortunate but that is the situation. In relation to you, we have considered all of the options overnight and I am informing you that you’re services will be terminated and that will take effect immediately. Alright, if you’ve got any company property with you such as staff discount cards or anything similar I’d ask that you hand them in. What we’ll get you to do is...we’re just taking a minute or so...just fill out a quick notice of termination from the company and I’ll give you a copy of that.”
Nowland:
Can I say a word?
Murphy:
Yeah, sure.
Nowland:
Steve, as you said when you were speaking through no fault of his he’s the first one interviewed and these other guys are going to take a week, so, why don’t you just put him on suspension?
Murphy:
Right now, John, isn’t the time to discuss them.”
Mr Nowland goes on to suggest that the Applicant should be suspended on full pay while the investigation of alleged pilfering by other employees continues. He states (transcript page 12):
“shouldn’t his pay be paid up until the point that we terminate the last employee if that’s what’s going to be done? He shouldn’t be treated financially any worse than the rest of the guys. Alright, he’s done something wrong, but because...it’s no fault of his...”
The transcript then suggests some indecipherable discussion involving at least Mr Whillas and Mr Nowland and possibly others.
The transcript then continues (page 12):
Nowland:
“I think that’s about all we’ve got to go on at the moment.”
Murphy, Vaughan or Whillas:
“We’ll ensure that everyone is treated as fairly as...
Nowland:
“Yeah, well that’s...are you happy with that John?”
Applicant:
“Yep”
Howland:
“As happy as he can be, put it that way.”
The Court is not prepared to interpret that exchange as the Applicant making any public concession. The exchange may be related to the earlier indecipherable discussion and may, in any event, be no more than the Applicant indicating that he is happy with the assurance “that everyone is treated fairly”.
Further indecipherable discussion follows. The Applicant then discusses his planned absence interstate the following week. Messrs Murphy and Vaughan express their appreciation, and the alleged appreciation of the police, in respect of what is described as the Applicant’s “co-operation”.
The Applicant seeks clarification of the possibility that police charges might result from what he describes as the “security guard incident”. Mr Murphy or Mr Vaughan suggests that:
they have only spoken briefly to the police
they do not know what charges might be laid against the Applicant
the police action “is divorced from what the company are doing”
the termination of the Applicant’s employment “still stands” if he is charged by the police and the charges are dismissed
Further indecipherable comments then precede and follow a brief request by the Applicant for detail of his “entitlements including superannuation”. No detail of entitlements (if any) are provided to the Applicant at that stage other than a suggestion that he will get “holidays, sick pay, money put into the company, long service” (transcript page 13).
Thereafter, interspersed with indecipherable comments, the Applicant expresses concern about the possibility that the Respondent could recommend against his employment by other employers after Court proceedings. Mr Murphy or Vaughan or Whillas, or a combination of them, respond without making any commitment other than the following (transcript page 14):
“John, I may state, I make it very clear to you, we are not in the business of screwing people, alright? You’ve done something that’s wrong at Safeway. If you go out tomorrow and you get another job I wish you all the best...but I say that, quite seriously, you’ve got to work and I appreciate that. I wish you all the best with whatever you do. I’m not going to hound...and continue to say to people, ‘don’t employ this guy, that’s crazy’.”
At this stage in the interview, after some indecipherable comment, a definite statement on termination is recorded as follows (page 14):
“What this is, is your notice of termination from the company. You can both have a read of it, so you know what you’re doing. All I’d ask you to do is sign down the bottom there, just to simply acknowledge the fact that you got a copy of it.”
The statement of termination of employment (Exhibit R3) is addressed to the Applicant in the name of John Stankiewicz and is dated 14 July 1995. It is signed by Steven Murphy as security manager and the Applicant has signed the notice in acknowledgement of receipt.
The body of the notice reads as follows:
“Notice of termination of employment.
You are hereby notified that your services with this company are terminated effective 14/7/95. You have been given nil weeks notice of termination of employment or payment in lieu thereof.”
Some brief discussion, some of it indecipherable, followed the delivery of the notice. Mr Nowland then suggested that the Applicant should get a week’s notice. This may have been in the form of a question. The termination is clearly stated to be without notice and in the transcript of the interview the termination is described:
“in the context of an immediate dismissal for serious misconduct” (page 11)
“your services will be terminated and that will take place immediately” (page 11)
“a quick notice of termination from the company” (page 11)
“if John Stankiewicz is terminated today” (Mr Nowland page 12)
“the termination still stands” i.e. if police charges are dismissed (page 13)
“this is your notice of termination from the company” (page 14)
The notice of termination (Exhibit R3) does not state the grounds of termination and there is no reference to misconduct in the notice. Nevertheless, it is clear from the transcript of the interview on 14 July and the transcript of the interview on 13 July that the Applicant was dismissed for misconduct. It is also clear that the misconduct was the unauthorised use and removal and, in some cases, admitted consumption of company property. It is also clear from the transcript that the misconduct was stated to involve removal and dealing with company property as shown in the incidents electronically dated, timed and recorded on the video tape (Exhibit R2).
The Court notes that the grounds for termination were not put to the Applicant in a precise or concise form or in the specific form outlined above. However, the Court is satisfied that:
the substance of such grounds were put to the Applicant at the interviews on 13 and 14 July
the Applicant understood what was put, understood the stated grounds of termination, and understood he was being summarily dismissed for serious misconduct
the Applicant made the admissions identified earlier in this judgment
THE VIDEO TAPE
The video tape (part of Exhibit R2) shows the Applicant involved in at least 14 incidents on seven nights between 19 and 29 June. After viewing the tape during the hearing and again within 2 days of the hearing, and taking account of the Applicant’s evidence as to what he states the incidents demonstrate, it is possible to summarise what is indicated by each incident on the tape. In the summary below it is the Applicant’s activities which are described.
Date Time Incident
19.6.951.33.34 An object placed in back pocket. At trial the Applicant claimed this was an “old TV Week” (magazine) which he planned to read but “not take home”.
19.6.954.56.00 An object is placed first in hip pocket, then in inside jacket pocket. An attempt is then made to place the original object or another in a “sleeve pocket”. Finally an object is placed in a trousers pocket. The Applicant at trial claimed that at least part of the incident represented him putting his own local paper, the Frankston Standard, in his back pocket and that he also put another “local paper”, exchanged with a work mate, in his pocket.
20.6.953.41.05 A container of liquid is taken from a rack from an area outside the reclaim area and later in the reclaim area the Applicant pours contents into a cup or beaker and consumes it. At trial the Applicant claimed this was cordial, which he believed he was allowed to consume anywhere on the premises. He also claimed that he added water to the cordial from “an old lemonade bottle” which he kept in the reclaim area.
20.6.954.22.00 Unidentified objects are taken from a locker or cupboard and placed in the Applicant’s pockets. At trial the Applicant claimed these were personal objects. He claimed that he sometimes kept personal property in this locker, and at other times kept this property in his personal locker, and at other times again, left personal property on a desk in the reclaim area. He gave as examples of such property, a tape recorder which he said he was in the habit of carrying after “complaints about his earlier Work Care claim”, knives, boxes, “cards to write on”, pens, newspapers and his lunch. He claimed at trial to have remembered that on this occasion on 20 June one of the objects was “my own knife supplied by the company”.
21.6.955.33.30 Applicant approaches racks, takes and breaks open a package or packet, backs away from the racks, looks around and puts several items in various pockets and throws away the packaging. At trial the Applicant admits that the film depicts him doing this and claims that the items were “damaged muesli bars, that he only put two of the bars in his clothing and that he consumed them in the canteen at about 5:45 am (i.e. about 10 minutes later). He also claimed that he was feeling nauseous because, at that time, he was taking codate, in addition to other medication, and the consumption of the muesli bars relieved the nausea.
22.6.953.20.17 Applicant is standing near a desk and takes several items (at least three items) from on or near the desk and places these items in a sleeve pocket of his jacket. Another man is present. At trial the Applicant identified this man as a workmate, Mr Beach. Mr Beach is shown placing an object on the desk directly in front of the Applicant. The film is not clear enough to indicate whether the object is handed directly to the Applicant or simply placed in front of him. The Applicant claims that the object was placed on the desk but he did not pick it up or put it in his clothing. It is not possible to ascertain from the film whether this object was one of several which are clearly depicted as taken from on or near the desk by the Applicant and placed in his sleeve pocket.
22.6.954.26.05 The Applicant takes a box or package from the top of a transporter and is depicted putting a number of items in his clothing and adjusting his clothing. Another man joins the Applicant. The Applicant turns his back to the other man twice and appears to put items in an inside jacket pocket. The other man also appears to be placing items in his clothing. At trial the Applicant stated that:
(i) “every movement on the video looks suspicious”
(ii)“it could have been my own property”
(iii)“no, I was not taking company property”
(iv) “it might have been my knife, my cards, a pen or other personal property”
22.6.955.38.14 The Court viewed nothing on this film segment which depicted the Applicant dealing with any object or objects in a manner which suggested the removal of company property.
22.6.9522.19.45 Three men are standing near a bin. One is the Applicant and another is identified as a Security Guard, Mr Calderbank. The Applicant leaves the area and returns carrying a box. The box is either handed to Calderbank or placed near him. Calderbank appears to take something out of the box. At trial the Applicant claimed that he could not see Mr Calderbank taking anything out of the box. The Applicant made this response while viewing the video during the hearing. At trial the Applicant conceded that Mr Calderbank asked for tea, coffee and sugar and that he (the Applicant) “went out and grabbed a big box”. At first the Applicant stated that he “could not remember whether it was tea or coffee”. Later he stated that he “did not know what was in the box”. This may mean that he did not know what the box contained and whether it contained tea or coffee or anything else. It seems more likely that the Applicant is saying, at trial in February 1996, that he does not know whether the box he was carrying on 22 June 1995 contained tea of coffee. Earlier in his evidence, the Applicant had stated that Mr Calderbank had asked for coffee and that he had suggested to Mr Calderbank that he (Calderbank) look in the “Salvo bin”. At that stage the Applicant also stated that Mr Calderbank “took tea and coffee”. Immediately thereafter, the Applicant stated that he “did not see Calderbank take tea or coffee” and that he “did not give Calderbank tea or coffee”.
25.6.954.58.31 The Applicant is shown searching a bin on the right hand side of the reclaim area (i.e. on the viewer’s right hand side). He then moves to the left hand side and picks up an object from a lower rack and places the object in his clothing as he walks up through the reclaim area. At the trial the Applicant stated that he could not remember what he was looking for in the bin or on the rack. He disagreed that the film showed him taking an object off the lower rack or putting an object in his clothing. Upon examination of the film, during the hearing, the Applicant stated “I see myself touching my knife”.
26.6.955.23.06 The Applicant is depicted going to lockers at the top left hand end of the reclaim area and on three separate occasions taking items from a locker and putting those items in his pockets. At trial the Applicant on viewing the film conceded this was what occurred but he claimed that the items were his property but that he was unable to say what items of his property were depicted. It follows that the Applicant cannot, on that evidence, establish that the three items were his property and he seems to rely, on this occasion, on his earlier evidence that it was his practice to keep personal property in one of these lockers as well as in his personal locker and from time to time on the desk depicted in the incident at 3:20 on 22 June.
29.6.951.25.20 This incident shows the Applicant passing an item to or near to a Mr Luton, or placing an item on a rack in the immediate vicinity of Mr Luton. At trial, the Applicant claims that the item was a packet of chocolate biscuits and that the biscuits were his own personal property and part of his lunch. He also claims that the biscuits were on a rack where workers sometimes put personal property, like papers and food, and that, at this stage, on 29 June, the rack contained some newspapers and some rotting apples and, presumably, the chocolate biscuits.
29.6.954.43.49 The Applicant is depicted taking items out of a packet, throwing the empty packet in a bin and placing the items in various pockets in his clothing. At trial, on viewing the video, the Applicant claimed that:
(i) the item (i.e. the packet) came from a bin or locker on the left hand side of the reclaim area
(ii) not all the items “on the rack” are company property (e.g. “old bags of sandwiches”)
(iii) on the film, he could not identify the item as company property and on the evidence he “would have to say no, it is not company property”
29.6.955.12.55 The Applicant is standing near a rack with another man and takes an object from the rack and then appears to place two separate items in his jacket. At trial, on viewing the film the Applicant responded as follows:
“I saw something flip over. I cannot suggest what it was.”
CLAIMS MADE BY THE APPLICANT AT TRIAL
At the hearing, some of the evidence of the Applicant bore the marks of recent invention. Certain of his evidence was open to that construction. The Applicant gave evidence of a number of matters which are not recorded in the transcript of interview on 13 and 14 July. They are matters which, if true, could have been raised at those interviews in defence, or at least in mitigation. There is no evidence that these matters were raised at the interviews and no evidence that the Applicant suggested at the interviews that he had raised such matters at his earlier interview with the police on 13 July (except for Item 7 below). The matters include the following claims made by the Applicant in his evidence at the hearing:
nausea at 5:33 am on 21 June caused by codate and relief of the nausea through the consumption of two muesli bars
the possibility that the items taken from the package on top of the transporter at 4:26 am on 22 June might have been his own knife, a pen, cards or other personal property
the claim that the video at 4:58 am on 25 June shows the Applicant touching his knife. To be fair to the Applicant, this incident was never mentioned at the interviews on 13 or 14 July and he could not have been expected to give, at interview, the assessment he gave while viewing the video at the hearing. Nevertheless, it is my assessment, after viewing the video on three occasions, that the claim of merely “touching the knife” bears the marks of recent invention
the claim that a locker on the top left hand of the reclaim area often contained the Applicant’s personal property such as a tape recorder, lunch, a knife, pens, etc.
the claim that such personal items were also at times left on a desk in the reclaim area
the claim that the Applicant thought that employees were authorised to consume cordial at any time or place within the premises
(vii)the chocolate biscuits allegedly given to Mr Luton. The Court does note that the Applicant claimed that, in his earlier interview with the police, he had described the package given to Luton as “part of my lunch”. Be that as it may, the Court considers this claim also bears the mark of recent invention. Mr Luton in his evidence states that he viewed the video in June 1995 (it was recorded on 29 June). However, his evidence does not contain a positive statement that he received food or chocolate biscuits from the Applicant during the particular incident at 1:25 am on 29 June. Indeed, it is his evidence that he is not even sure he is depicted in the video. The substance of his evidence is no more than that on occasions he had received food from the Applicant.
THE SUBSTANCE OF THE APPLICATION
The Applicant seeks reinstatement. His Counsel asserts that:
there was no valid reason for termination
there is inadequate evidence to establish misconduct
if serious misconduct is not established, the Applicant is entitled to five weeks notice pursuant to S170DB
the investigation of the Applicant’s alleged dishonesty in allegedly removing and/or consuming the Respondent’s property was an inadequate investigation
the Applicant was not given a “proper opportunity” to respond to the allegations made against him and the allegations were not put clearly, separately and specifically
as a result of (i), (ii), (iv) and (v) above the Respondent is in breach of S170DC and S170DE(1)
the termination was harsh, unjust and unreasonable and in breach of S170DE(2)
MISCONDUCT
Counsel for the Applicant asserts that the evidence does not establish misconduct using the test applied in North v Television Corporation Ltd (1976) 11 ALR 599. North was a very different case. It involved a misconduct clause in an award. The misconduct was said to arise from a single telex message which was interpreted as critical and disrespectful of a Federal Minister and his staff. The misconduct was also stated to include an unsatisfactory attitude displayed by the author of the telex when taxed with the misconduct at interview. Nevertheless, the Court accepts North as authority through which the existence and nature of misconduct can be measured.
North at 608 and 609 is authority for the proposition that it is proper to consider the expression “misconduct” by reference to the subject matter to which it is related and in the context in which it appears. It is therefore reasonable to interpret “misconduct” as referring to conduct so seriously in breach of the contract of employment that by standards of fairness and justice the employer should not be bound to continue the employment.
North at 609 and Laws v London Chronicle (Indicator Newspapers) Ltd (1959) 2 All ER 285 at 289 are authority for the proposition that the relevant question at common law is whether the acts complained of are of such gravity or importance as to indicate a rejection or repudiation of the contract by the employee.
In this case, the Applicant is depicted on film on numerous occasions on several days in late June 1995. He is shown placing numerous unidentifiable items in his clothing. On most, if not all occasions, the items are likely to be the property of the Respondent. The Applicant’s explanation at trial, that his actions on the film are mostly the actions of a person dealing with his own personal property, are inherently unlikely, and are not believable. The Applicant made a number of admissions in the course of the interview on 13 July and he did not resile from them at the termination interview on 14 July.
Irrespective of whether the evidence so far presented could lead to a conviction for larceny or theft, that evidence can sustain a finding of serious misconduct. The policy of the company was well known and well circulated. It is a common policy in many such work places. The policy was, at that time, that the unauthorised removal of company property and the consumption of company property (with the minor exception of cordial in certain circumstances) was prohibited and led always to dismissal.
I find that the Applicant was well aware of this policy and the tenor of his responses at the interview on 13 and 14 July are consistent with such knowledge.
Furthermore, the Court accepts the evidence of Mr Anderson, Warehouse Manager, that he saw the Applicant on a Tuesday night at about 2:15 am in “July or August or September 1993” open his pay packet, remove a piece of paper which Mr Anderson assumed was a copy of then current version of Guidelines for Distribution Centre Behaviour. Mr Anderson had instructed the paymaster to attach the guidelines to all pay slips. He claims that the Applicant appeared to read the paper and then, openly and somewhat elaborately, wiped the paper across his backside and threw it on the ground. Mr Anderson states that he remonstrated with the Applicant and said:
“Is that all that means to you. Pick it up.”
Mr Anderson admits he did not himself pick the document up and read it and that he could be mistaken in assuming that it was a copy of the Guidelines. It clearly cannot be established beyond reasonable doubt that the Applicant treated a copy of an earlier version of the Guidelines (tendered to the Court as Exhibit R4) with open contempt but the Court accepts that, on the balance of probabilities, the Applicant did treat an unidentified paper in the manner described and that it is likely that it was an earlier version of the Guidelines (Exhibit R4), and that those guidelines contained a section headed “Behavioural standards subject to immediate suspension, pending termination of employment” and that that section of the guidelines included a reference to “theft or consumption of company stock and/or equipment”.
Without question the Court prefers the evidence of Mr Anderson to that of the Applicant. In any event, even if no weight was placed on that evidence, the Court would, without it, still find that the Applicant was well aware of the policy prohibiting the unauthorised removal or consumption of company property.
Such unauthorised removal and/or consumption, if found to have occurred, would be, without doubt, conduct so seriously in breach of the contract of employment, that by the standards of fairness and justice the employer should not be bound to continue the employment. Such conduct would indicate a rejection or repudiation of the contract by the employee.
NOTICE
It also follows that, if the serious misconduct is found to have occurred, it would be unreasonable, pursuant to S170DB(1)(b) to require the employer to continue the employment during the notice period, and the Applicant would not be entitled to the period of notice prescribed in S170DB(2).
FAIRNESS - THE INVESTIGATION AND THE ISSUE OF OPPORTUNITY TO RESPOND TO ALLEGATIONS - S170DC
Counsel for the Applicant cited Gibson v Bosmac Pty Ltd (1995) 130 ALR 245 and Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199; (1994) 126 ALR 233 in support of his contention that the termination breached S170DC. Counsel submitted “that no proper investigation and no proper inquiry and no proper opportunity...was given to Mr Stankiewicz to answer the allegations that were being made against him”.
In Bosmac at 252 the Chief Justice of this Court said:
“Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, common sense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.”
In Nicolson, 126 ALR at 243 the Chief Justice spoke of S170DC(a) thus:
“The paragraph does not require any particular formality. But this does not mean that it is unimportant or capable of perfunctory satisfaction. Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as “natural justice” or, more recently, “procedural fairness”. The relevant principle is that a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well-established in public administrative law. It was accepted into international labour law when Art 7 was inserted in the Termination of Employment Convention. Section 170DC is directly modelled on Art 7. The principle is, I believe, well understood in the community. It represents part of what Australians call “a fair go”. In the context of S170DC, it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself “against the allegations made”; that is, the particular allegations of misconduct or poor performance that are putting the employee’s job at risk. Section 170DC(a) is not satisfied by a mere exhortation to improve.”
At first blush, both passages above might seem to suggest that an employer will breach S170DC if the general terms of each and every allegation are not put to an employee particularly in a case where the allegations of serious misconduct involve allegations of dishonesty. However, I do not think this is so. In Nicolson, the Chief Justice states:
“Ordinarily (the employee)...must be made aware of the particular matters that are putting his job at risk and given an adequate opportunity of defence.”
In this case, the Applicant knew that his job was at risk. He in effect admitted that at both interviews on 13 and 14 July. He knew that it was his activities as depicted on the video that were the substance of the allegations. He had seen the video in the company of police not more than three or four hours before the interview in the workplace on 13 July. He declined two offers to view the video again. Some of the activities were referred to in the interview on 13 July in sufficient detail for the Applicant to refer to particular incidents and he clearly referred to other incidents of his own volition. He also made admissions.
In a perfect world, or rather, if the fairest and most thorough investigation practicable had been carried out, and the Applicant had been afforded the most conscientious opportunity to respond, Messrs Vaughan and Murphy would have run through the video again with the Applicant despite the position taken by the Applicant. However, the provision of “a fair go” does not require a perfect world or an investigation technique beyond reproach. In my view, the Applicant knew the exact nature of the allegations made even though the allegations were put at interview in an imprecise, general and, in some respects, inadequate fashion. The Applicant responded in a way which suggested that he had a good recall of the video incidents seen a few hours earlier. He also responded in a way which the Court believes to have been deliberately vague and rambling but, nevertheless, when pushed, he made admissions.
The Court has concluded that there was an adequate, although far from perfect, investigation, and that the Applicant had very adequate opportunities on the 13 and 14 July to respond to the allegations and knew very well what those allegations were. The Respondent did not breach S170DC.
There is nothing in my decision in Lowe and Herr and AFMEU v ACL Bearing Company, IRCA (unreported) 15 February 1995, Matters Nos. TI-173 of 1994 and TI-174 of 1994, Decision 34 of 1995 which leads me to a contrary conclusion. Counsel for the Respondent admitted that Lowe was a very different case. In Lowe there were no video films and no admissions. As in Lowe, and in this case, and indeed in every case where serious misconduct including dishonesty is alleged, and where the misconduct, if established, justifies and incurs summary termination, the Respondent is indisputably required to prove the allegations according to a test of very high balance of probabilities. See Briginshaw v Briginshaw (1938) 60 CLR 336.
The Court finds that the Respondent has discharged the obligation and that the termination did not breach S170DB, S170DC, S170DE(1) or S170DE(2). The application must be dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 22 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 9 July 1996
Solicitors for the Applicant: McPherson and Kelly
Counsel for the Applicant: Mr I Fehring
Solicitors for the Respondent: Clayton Utz
Counsel for the Respondent: Mr T Ginnane
Date of hearing: 27, 28 and 29 February 1996
Date of judgment: 9 July 1996
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