Whitehead v The Uncle Tobys Co. Limited
[1997] IRCA 180
•10 June 1997
DECISION NO:180/97
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
VALID REASON - CONDUCT AND PERFORMANCE - whether OPPORTUNITY TO RESPOND -
Workplace Relations Act 1996 ss170DC, 170EA
WHITEHEAD -V- THE UNCLE TOBYS CO. LIMITED
VI 3858 of 1995
Before : PARKINSON JR
Place : MELBOURNE (HEARD IN WODONGA)
Date : 10 JUNE 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3858 of 1995
B E T W E E N:
Graeme WHITEHEAD
Applicant
A N D
THE UNCLE TOBYS CO. LIMITED
Respondent
MINUTES OF ORDERS
10 JUNE 1997 PARKINSON JR
THE COURT ORDERS THAT:
The application pursuant to Section 170EA of the Workplace Relations Act, 1996 be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3858 of 1995
B E T W E E N:
Graeme WHITEHEAD
Applicant
A N D
THE UNCLE TOBYS CO. LIMITED
Respondent
REASONS FOR DECISION
10 JUNE 1997 PARKINSON JR
This is an application made pursuant to Section 170EA of the Workplace Relations Act 1996.(‘the Act’) The respondent manufactures cereal and snack food products at its plant at Wahgunyah in country Victoria. The applicant was employed by the respondent as a Level Six Production Employee. He was initially employed in 1988 as a Millers Assistant on the production line and promoted to Team Leader or Level Six Employee in 1994. The duties of a Level 6 Production Employee are in the nature of a team leader, and include the provision of a level of supervision and assistance to other production team members, and general operational responsibility for those areas of the plant within that employees access and control. The team leader on the night shift is the most senior employee on the plant and holds access keys to most areas of the premises. The plant is a 24 hour operation with 3 shifts, morning, afternoon and evening. The applicant was working on night shift on 1 and 2 June, 1995. The night shift commences at 11.00 p.m. and continues to 8.00 a.m. The applicant was in attendance at the plant earlier than commencement time on the evening of 1 June, for the purpose of additional duties.
In 1995 the respondent contracted out its canteen operations. The canteen facility provides meals and snacks for sale to employees throughout the day and into the evening. Prior to the contracting of the facility it had operated for the entire period of the night shift. After the contract was let, the canteen hours of operation were reduced and it ceased to operate after 8.00 p.m. The canteen premises were left open, with night shift employees having unlimited access for the purpose of eating meals, heating food and making tea and coffee. All sales areas were however inaccessible to the employees, including fridges containing packaged drinks and icecreams.
Some time after the contracting arrangement the respondent experienced some problems with vandalism and alleged thefts from the canteen area and locker rooms. Meetings were held to discuss the issue of security at which the applicant was present. As a consequence of the continuing security problem and without the knowledge of employees, other than two senior managers, a security system was installed in the canteen area. The evidence was that the respondent decided on this measure with some reluctance, aware of the possible industrial relations significance, in particular the potential for such a step to undermine the level of trust and co-operation and consultation which had thus far been established in the plant. Consequently it was decided that the respondent would only review the tape recordings in the event that an incident arose which required investigation. It was further decided that the tapes were not to be reviewed as a matter of course and were not to be used for the purpose of general surveillance of employees during meal breaks or other breaks. Consistent with this decision, no review of the tapes occurred for some time.
On 2 June, 1995 an incident was reported to the respondent’s employee relations manager, Mr Morley. He was informed that the refrigerated ice-cream cabinet in the canteen had been broken into and product stolen from the cabinet, some time on the previous evening. The ice-cream cabinet was a refrigerated cabinet with slide across lids, similar to those seen in many milk bars, however the cabinet in question was secured by an inbuilt lock during times when the canteen was not staffed. The report was made by the Canteen Manager, Mrs Sharp as a result of information provided by the Canteen Supervisor, Mrs Heather Trower. As a result of viewing of the video tapes for the previous evening the respondent’s Employee Relations Manager’s, Mr Morley and Production Manager, Mr Kelly, concluded that the applicant had broken open the lock on the icecream cabinet and had removed and eaten ice-cream product. Various inquiries as to the reliability of the video recordings were made by them in the next fortnight.
Upon his return from annual leave on Monday 26 June, 1995, the applicant was called to an interview with Mr Kelly and a Sergeant Harris of the Victoria Police. At that interview the applicant was advised of the respondent’s concerns and sent home on full pay. The applicant denied any involvement with the opening of the unit or the removal of stock. He further denied any knowledge of any other participants. He was not at that time shown the tape recording nor was he advised of its existence. He was however informed that the respondent believed it had reliable evidence to establish that he had been responsible for the canteen break in and theft. He was subsequently advised by telephone on that day that he was to remain on suspension with full pay until the respondent had completed its investigations. On 27 June, 1995, as a result of an earlier meeting that day, initiated by the applicant’s union in response to the applicant’s suspension, the respondent advised the site union delegates of the nature of the evidence that was in its possession. On that day the video tape was viewed by the representatives. The applicant was advised by Mr Hore, his union delegate, of the existence of the tape recording. He again denied any wrong doing. This denial was relayed to the respondent by Mr Hore. On 27 June, 1995, Mr Morley rang the applicant at home and advised him that he was being stood down on ordinary pay until the respondent had completed its investigation. This advice was confirmed in writing on that day. On 30 June, 1995 the applicant was interviewed by police and informed he was to be charged with various offences. On 3 July, 1995 the applicant’s employment was terminated summarily by the respondent for serious misconduct.
The respondent contends that it had valid reason for the termination of the applicant’s employment based upon his conduct. It contends that the applicant, at 12.36am on 2 June, 1995, entered the canteen and proceeded to break open the lock of the icecream refrigerator. After breaking open the refrigerator, the respondent says that the applicant removed, for his own consumption, icecreams. It says further that the applicant left the unit unsecured in the general canteen area throughout the evening meal and smoko breaks of employees, thus knowingly exposing the stock to pilfering. In relation to these matters the respondent relies upon part of the video recordings of the premises on the evening in question, statements made by the applicant to another employee and in the course of a police interview, and evidence of the applicant in these proceedings. The applicant denies that he broke into the icecream cabinet, his evidence being that he was attempting to secure the cabinet. He further denies that he removed any of the contents of the cabinet or that he ate any of the icecream product.
In the proceeding video evidence was tendered by the respondent. The video evidence relied upon by the respondent was only part of the entire tapes made on the evening. The complete tapes had been handed into the custody of the police without an entire copy being made and retained by the respondent. The respondent explained that the complete 24 hours of tape had been misplaced whilst in the custody of the Victoria Police. In the absence of production by the respondent of the entirety of the video tapes the applicant sought that the video tapes be excluded from evidence. This is because it was submitted that the earlier and subsequent aspects of the video recording were necessary to give context to the applicant’s conduct as recorded. In particular, the applicant refers to that part of the tape which shows him, in the course of handling the icecream cabinet, look around and move away from the machine in a manner which the respondent says can be interpreted as guilty conduct. The applicant explains this conduct by reference to a conversation he says was occurring or probably occurring at the time with another employee in the canteen. He explains further his conduct in wiping the top of the refrigerator clean as being “just a joke, because I didn’t want to be landed with the blame.” The applicant says that his explanation would be supported by the earlier aspects of the video tape if available. A further aspect of the tape he refers to is the interpretation by the respondent of his conduct in shaking and pushing the icecream cabinet and his reaching into the cabinet. This also may, the applicant contends, have been put into proper context by the earlier aspects of the video tape.
Whilst I accept that there may be danger in relying upon the tape recording as the sole basis for the interpretation of the applicant’s conduct, that is not the nature of the reliance placed upon the video in this proceeding and is not the basis upon which I have considered that evidence. The video recording is just one part of the evidence in this regard, the other evidence includes the evidence of Mr Morley and Mr King as to what they observed on the tape, the explanations given by the applicant in recorded interview with the police, at which time the applicant was able to and did view and comment upon the earlier and later aspects of the tape recording not available to the Court in these proceedings, the evidence of the applicant as to the events in question and the evidence of other witnesses, including Mrs. Trower as to the events and conversation with the applicant on the morning of 2 June, 1995. It is in this context that I have had regard to the contents of the video evidence and formed my conclusions as to the interpretation to be given to the applicant’s conduct shown thereon. I turn now to my consideration of the facts.
Mrs. Trower’s evidence was that when she attended to open the canteen at approximately 6.00 a.m. on the morning of 2 June, the applicant approached her and advised her that the icecream fridge was locked in the training room because it had been unlocked when he arrived at work. Her evidence was that he indicated it must have been interfered with by someone on afternoon shift. Her evidence was that she responded to this assertion by indicating that this was strange because she had been present at 8.30pm when the fridge was locked and as he was working on nightshift, it must have happened between 9.30 a.m. and 11.00 p.m. Mrs. Trower’s evidence was that she had been called back to the workplace from home on the previous evening, 1 June, 1995, for the purpose of assisting the canteen attendant who was having difficulty in locking the icecream cabinet. She returned to work at approximately 8.30 p.m. to 8.45 p.m. for that purpose and her evidence was that the fridge had been secured when she left the premises at approximately 9.00 p.m. that evening. The evidence of Mrs Trower was that upon inspection of the cabinet it was apparent that the lock had been damaged and that some stock had been removed. Her evidence was it was apparent that a significant number of ice-creams had been removed from the cabinet, which had been fully restocked prior to locking on the previous evening. In cross examination, the applicant was unable to remember whether he made such a statement to Mrs. Trower. I accept Mrs. Trower’s evidence as to the conversation.I am satisfied that the applicant intended to convey to Mrs. Trower the impression that the fridge was already unlocked at the start of his shift at 11.00 p.m. and that he had observed this to be the case when he commenced work. This is inconsistent with the evidence of the applicant in these proceedings wherein he informed the Court that the occasion when the video recorded him shaking and pushing the unit was the first time he had noticed that the unit was unlocked.
The applicant’s evidence in the proceeding was that when he attended the canteen, as shown on the video recording, he first noticed that the icecream cabinet was unlocked. His evidence as to the events at that attendance and his viewing of the tape in the proceedings establishes that the actual time of the attendance was 12.36am. The applicant’s evidence was that he then tried to lock the cabinet and this was the reason why he was seen to be pushing the cabinet and inserting his hand into the unit. His evidence was that he took nothing from the cabinet. His evidence was that the item he was shown eating in the video recording could have been a chocolate or muesli bar. The applicant’s evidence in the proceedings was that the item being eaten by him was “probably a chocolate bar or a muesli bar”.
I have viewed the video evidence on a number of occasions and I have also considered the evidence of the applicant and his explanation in the record of interview and I am not satisfied that the applicant’s explanation adequately explains the nature of his actions in handling the icecream cabinet and in particular inserting his hand into the depths of the unit. This is particularly so in the context of the applicant’s failure to take any action to subsequently secure the cabinet after he ascertained that it was open, notwithstanding that he had taken steps to remove his fingerprints from the top of the cabinet at that time. The evidence of the applicant as to his wiping the fridge clean of fingerprints was that he was concerned that he may be blamed for the damage to the cabinet and the missing icecreams. This he explained, was because he was aware of another Level 6 employee being spoken to by management for failing to ensure the security of a drink vending machine some weeks earlier. Yet, notwithstanding this knowledge and his observation that the fridge was unlocked, aside from wiping the fridge clean of his fingerprints, the applicant did not take any steps to remove the fridge into a secure area until approximately 1 and 1/2 hours after, on his evidence, he first observed it as being open. I did not find the applicant’s explanation of his conduct satisfactory. The applicant left the fridge open in the canteen despite the fact that there remained employees still to take scheduled shift breaks who would thus be in a position to access the cabinet and remove stock and who on the evidence did in fact do so. This is not conduct consistent with his advice to Mrs Trower, that he was acting to protect the contents of the fridge, or his evidence in these proceedings that he felt an obligation to ensure the security of the fridge, nor is it conduct consistent with what I am satisfied was his responsibility as a supervisory employee of the respondent. It is relevant to consider this inconsistency of action in deciding what interpretation ought be given to the applicant’s actions in shaking and pushing the unit. I am satisfied that the applicant by pushing and shaking the cabinet and interfering with the lock mechanism, opened the locked cabinet.
I am also satisfied that the applicant reached into the cabinet and removed an item from the cabinet. I am satisfied that the video evidence establishes that an item was removed by the applicant from the cabinet. I am also satisfied that the item being eaten by him immediately thereafter was an icecream and not a muesli bar or chocolate bar. The evidence is that there was no other location in the canteen where an icecream or a chocolate or muesli bar could be purchased or otherwise obtained. The applicant did not suggest at anytime in his evidence or record of interview that the item had been obtained from any other person who may have been present in the canteen at that time. Nor was there an occasion at that point in the video where the applicant removed an item from his jacket. Consequently there is no alternative explanation before the Court as to when or where the item which the applicant says ‘may be a muesli bar or chocolate bar’, was obtained. Upon removing the icecream from the cabinet, the applicant walked out of range of the video camera and seconds later returned into view, raising the icecream to his mouth.
In reaching this conclusion I have also had regard to the evidence of witnesses in the proceeding as to admissions made by the applicant. The admission was said to have been made in the course of a conversation between the applicant and Senior Constable Kerr in the presence of another officer, then Constable Enshaw. Both Senior Constable Kerr and Mr Enshaw gave evidence in these proceedings that the applicant had in the course of a conversation outside of the police station admitted that he had taken an icecream. The applicant denies making any admission to the police. The applicant sought that the evidence of such an admission not be heard, having regard to the requirements that in criminal proceedings any admission is not admissible unless recorded. The applicant contends that it would be unsafe to rely upon such an admission in circumstances where it was not taped. In the case of criminal proceedings, the statute prescribes the circumstances in which admissions will be received into evidence. Such considerations, nor statutory prohibitions, do not apply in proceedings brought pursuant to s170EA of the Act. Nor do I accept that the same policy considerations, which no doubt resulted in the introduction of the statutory provisions governing criminal proceedings, apply in this proceeding. This is because in a significant sense the witness giving evidence as to the alleged admission is doing so not in the capacity as an active participant in the legal proceedings. Nor could it be said that the witness in any way has any professional or personal interest in the outcome of the present proceedings. I accept that such an admission was made. I have heard the evidence of Mr Enshaw, formerly a constable of the Victoria Police and that of Senior Constable Kerr. I found them to be witnesses of credit. I prefer their evidence to that of the applicant. Further, the receipt of the admission is consistent with the evidence of Mr Kelly as to the advice he received on 30 June, 1995 from Senior Constable Kerr, which I am satisfied occurred on that day and shortly after the admission was made. The evidence of the respondent is that on 30 June in the late afternoon a telephone call was received by Mr Kelly at the respondent’s premises, from Senior Constable Kerr, wherein the constable advised that the applicant had “off the record” admitted the offence. Evidence was called from Mr Duncan, the solicitor for the applicant as to a later conversation he had with Constable Enshaw in relation to alleged admissions. I accept the evidence of Mr Duncan as to the nature of the conversations he had with Constable Enshaw as to their being no ‘admission’, however I am satisfied having regard to Mr Duncan’s file notes of that conversation, that the conversation occurred in the context of a discussion as to a formal admission on the record for the purposes of the criminal proceedings.
I am satisfied having regard to the findings made as to the applicant’s conduct on 2 June, 1995 that the respondent had valid reason for the termination of the applicant’s employment. There has been no contravention of Subsection 170DE(1) of the Act.
I turn now to consider s170DC of the Act.
The applicant was interviewed by the respondent and given the opportunity to respond to the matters alleged against him on 3 occasions prior to the employment being terminated. Whilst the applicant was not shown the tape recordings by the respondent, but rather by the police, nevertheless I am satisfied that he was informed of the information and materials relied upon by the respondent in deciding to terminate the employment.
The conduct of the respondent in suspending the applicant from the employment for a period of 7 days prior to terminating the employment allowed a sufficient period of time to the applicant to pursue or raise any matters with the respondent he felt appropriate. I am satisfied that as at the date of the suspension the applicant was fully informed by the respondent as to the nature of the allegations made by it. I am also satisfied that reasonable steps were taken by the respondent in the circumstances to inform the applicant, both directly and through his representatives, of the detail of the allegations against him. Whilst to some extent the respondent may be criticised for failing to ensure that the applicant had an opportunity in the presence of the respondent’s managers to view and comment upon the tape recording, I am satisfied in the circumstances, particularly having regard to his viewing of the tape recording on 30 June, 1995, that prior to the termination of his employment the applicant had adequate opportunity to view and comment upon the tape recording and as a consequence to raise any matters with the respondent arising from that record as may have been relevant to his response. The respondent made a decision, not merely consequent upon the information as to the admission provided by Senior Constable Kerr, but also as a result of its own knowledge, investigations and information provided by other employees, and its observations of the record, to terminate the applicant’s employment. I am satisfied that the respondent was concerned to ensure that prior to that decision being implemented the applicant was given an opportunity to respond to the allegations. This occurred by way of the meeting on 3 July, 1995. The fact that the applicant elected on quite proper legal advice to make no explanation or response to the respondent on that occasion does not alter this position. The respondent was entitled to act to terminate the employment after it had complied with its obligations under s170DC. Those obligations do not extend to refraining from terminating the employment in the event that an employee, upon being given an opportunity, declines to be heard. I am satisfied that the respondent has complied with its obligations arising from s170DC of the Act.
For the reasons set out herein the application made pursuant to Section 170EA of the Act will be dismissed.
I certify that this and the preceding eleven (11) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate :
Dated : 10 June 1997
APPEARANCES
Counsel appearing for the applicant : Mr. Blackman
Solicitors for the applicant : Harris Lieberman Boyd
Counsel appearing for the respondent : Mr. N. Green
Solicitors for the respondent : Blake Dawson Waldron
Dates of hearing : 17, 18 & 19 March 1997
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