Albert Keith Innes v Alco Pty Ltd trading as WA Salvage [1995] IRCA 184

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - whether valid reason for termination - reinstatement impracticable. INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170EA ALBERT KEITH INNES -V - ALCO PTY LTD trading as WA SALVAGE No. WI 250/1994 Judicial Registrar: L Farrell Place: Adelaide Date: 4 May 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY

No. WI 250 of 1994

B E T W E E N: ALBERT KEITH INNES Applicant AND ALCO PTY LTD trading as WA SALVAGE Respondent MINUTES OF ORDER Judicial Registrar Farrell Date: 4 May 1995

THE COURT ORDERS THAT: 1. The termination of the Applicant's employment by the Respondent contravenes Division 3 Part VIA of the Industrial Relations Act. 2. That the Respondent pay to the Applicant compensation in the sum of $17,000.00 within fourteen days of today's date. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY

No. WI 250 of 1994

B E T W E E N: ALBERT KEITH INNES Applicant AND ALCO PTY LTD trading as WA SALVAGE Respondent

BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 4 MAY 1995 REASONS FOR JUDGMENT This is an Application pursuant to Section 170EA of the Industrial Relations Act 1988. The Applicant claims reinstatement or compensation. I find the facts as follows. The Applicant was employed as a Store Manager by the Respondent. His employment was terminated on 12 July 1994. The Applicant's employment was terminated following an interview conducted by Ms E Haven, the Loss Prevention Manager of the Respondent.

The Respondent had instigated the interview of the Applicant in the belief that he had stolen steel gates belonging to the Respondent. It was admitted by the Respondent's witness Mr Gibson during the hearing that that was not in fact so and that the Applicant had not stolen the gates. The Applicant was briefly questioned regarding two items that it was alleged were stolen by the Applicant from the Respondent. The Respondent alleged that the Applicant had stolen a brief case and a piece of carpet. The Applicant was subsequently prosecuted in relation to these matters and was found not guilty. It was the Applicant's evidence that he was using the brief case and the piece of carpet to carry out his duties. He regarded himself as having the authority to do so. There is nothing in the evidence to suggest that he did not in fact have the authority. The Applicant's only failing was not invoicing in a proper fashion the items he was using. I am satisfied on the evidence before me that the Applicant did not steal the items but that he was using the items to carry out his duties as an employee of the Respondent. The interview process was flawed in that Ms Haven drew conclusions that were incorrect from answers given by the Applicant. She then put those conclusions to the Applicant and he agreed with them. She used legal terms which the Applicant did not understand. She did not fully understand the Respondent's policies. She admitted in her evidence that he "went off on a tangent". I accept the Applicant's evidence that he tried to explain the matters to her however she did not record those matters. The Applicant did however breach the unwritten company policy regarding the invoicing of items for store use. In my view that breach of the unwritten company policy did not warrant termination of the Applicant's employment. In my view the Respondent did not have a valid reason for terminating the Applicant's employment. In my view the termination of the Applicant's employment by the Respondent was unlawful. I turn now to remedy. The Applicant was employed as a Store Manager. The Respondent's witness Mr Gibson gave evidence that no management positions were currently available. The Applicant gave evidence that it would be necessary for him to give notice from his current employment as a Storeperson. The evidence was clear that he was a successful Manager and he had a genuine desire to re-establish a relationship with the Respondent. The allegations against him have made it impossible for him to obtain employment as a Manager. In my view it is impracticable to reinstate the Applicant because no suitable position is available. I therefore award compensation to the Applicant in the sum of $17,000.00 payable within fourteen days. I certify that this and the preceding 2 pages are a true copy my reasons for judgment. DATE OF HEARING: 26 April 1995 FOR THE APPLICANT: Mr A Castiglione FOR THE RESPONDENT: Mr S Ellis