Saneeta Singh v Nestle Confectionery Ltd [1996] IRCA 85

DECISION NO: 85/96 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3747 of 1995 B E T W E E N: Saneeta SINGH Applicant A N D NESTLE CONFECTIONERY LTD Respondent REASONS FOR DECISION (delivered ex tempore) 8 March 1996 PARKINSON JR This is my decision delivered ex tempore in relation to application number 3747 of 1995. This is an application made pursuant to section 170EA of the Industrial Relations Act 1988. The applicant in these proceedings was employed by the respondent in its confectionery operation at Campbellfield between April 1988 and June 1995. The applicant was investigated by the police in relation to allegations of theft of an 'outer' of Aero bars, that 'outer' containing some 20 items. In the course of the interviews with police, the applicant admitted to theft and this information was conveyed to the respondent's factory manager, Mr Miller. Interviews were subsequently arranged with the applicant in which the respondent was represented by Mr Miller and another manager, and the applicant was represented by Mr Frizziero of the applicant's union. At the first interview on 30 June 1995 the respondent put the allegations of theft to the applicant and the applicant denied the contents of the statement made to the police. As a result, the respondent adjourned that meeting to further investigation, suspending the applicant without pay in the interim. A second interview took place on 4 July 1995. At that interview Mr Miller informed the applicant of the detail of the matters she was alleged to have admitted to police, including that she had taken a product from the respondent. The applicant continued to deny the thefts alleged and the truth of the content of the statement she had previously made to the police. The company took a decision to terminate the employment of the applicant at the conclusion of the interview on 4 July 1995. Charges were laid by police which were ultimately found to be proved in the course of proceedings before a magistrate, and a non-conviction bond was entered in penalty against the applicant. The applicant submitted that there are various matters in mitigation in these proceedings which establish that the termination decision was harsh, unjust or unreasonable. Those matters are: (1) that there were and had been alternative and previous approaches by the company to circumstances of allegations of theft which differed in penalty to that imposed upon the applicant; and (2) the fact that the item was of small and relatively minor value. I am not satisfied that the termination in these proceedings was harsh, unjust or unreasonable. The circumstances of the theft and in particular the denials by the applicant at the interviews with the respondent meant that the respondent was led on a wild goose chase in establishing the facts of the circumstances and the allegations against the applicant. Further, I am not satisfied that the evidence suggests that there has been an unfair approach to the applicant's circumstances having regard to previous decisions on penalty made by the company in respect of other employees. There are distinguishing factors between this case and the other instances referred to by the union. These factors include the fact that in the present instance there were maintained denials of the conduct and there was a lack of any mitigating explanation by the applicant in the course of the interviews with the respondent, nor any apology. It is apparent to the court that there is a clear policy that theft in the respondent results in termination of employment, and that the policy was known to the applicant. It is my decision that the termination of the applicant's employment was for valid reason and was not harsh, unjust or unreasonable. I am satisfied that the applicant was given sufficient and adequate opportunity to be heard in relation to the allegations in compliance with section 170DC of the Act. For the reasons that I have set out, the application is dismissed. I certify that this and the preceding two (2) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson delivered ex tempore and revised from the transcript. Associate: Dated: 8 March 1996 APPEARANCES Representative for the applicant: AFMEPKIU Representative appearing for the applicant: Mr B Megennis Representative for the respondent: Ausgroup Services Employers Association Counsel appearing for the respondent: Mr F Parry Date of hearing: 8 March 1996