Jackson v Rothmans of Pall Mall Australia Limited [1996] IRCA 302

DECISION NO: 302/96 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged unlawful termination - sales representative - stock control policy - whether valid reason for termination - whether harsh, unjust or unreasonable - reinstatement Industrial Relations Act 1988 ss 170DE, 170DE(1) Anthony Robert JACKSON -v- ROTHMANS OF PALL MALL AUSTRALIA LIMITED - WI 96/1087 Before: BOON JR Place: PERTH Date: 10 July 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WI 96/1087 B E T W E E N: Anthony Robert JACKSON Applicant A N D: ROTHMANS OF PALL MALL AUSTRALIA LIMITED Respondent MINUTE OF ORDERS 10 July 1996 BOON JR THE COURT ORDERS AND DECLARES THAT: 1. The respondent breached the provisions of Section 170DE of the Industrial Relations Act 1988 in terminating the applicant's employment. 2. The respondent within 14 days of the date of this order reinstate the applicant to the position in which the applicant was employed immediately before the termination. 3. The applicant's employment is for all intents and purposes to be treated as having been continuous from the date of termination to the date of reinstatement. 4. The respondent pay to the applicant the remuneration lost by the applicant because of the unlawful termination within 14 days of the date of this order. 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 WESTERN AUSTRALIA DISTRICT REGISTRY WI 96/1087 B E T W E E N: Anthony Robert JACKSON Applicant A N D: ROTHMANS OF PALL MALL AUSTRALIA LIMITED Respondent REASONS FOR DECISION 10 July 1996 BOON JR This is an application under Section 170EA of the Industrial Relations Act 1988, arising out of the termination of the applicant's employment by the respondent. The applicant alleges that the respondent breached the provisions of Section 170DE of the Act. In the first place, the applicant says that there was no valid reason for the termination connected with the applicant's conduct or performance, contrary to subsection (1) of Section 170DE. Further, the applicant says that if this Court decides that there was a valid reason for the termination, the termination was in any event harsh, unjust or unreasonable contrary to the provisions of subsection (2) of Section 170DE. The question of whether or not procedural fairness was afforded to the applicant at the time of termination of his employment is not at issue. BACKGROUND The applicant, Anthony Robert Jackson, is a 52 year old man who has been employed by the respondent under its various guises since 22 February 1978. At the time of the termination of his employment he was employed as a relief sales representative. The respondent, Rothmans of Pall Mall Australia Limited, sells and distributes cigarettes to retail outlets. It is common ground that the applicant was, during the 18 years of his service with the respondent, a highly satisfactory employee. There were no significant complaints about his conduct or performance until September 1995. At that time it was found that Mr Jackson had incurred an unaccounted stock loss of 8,600 cigarettes. Mr Jackson described that incident to the Court. On that occasion, the security of the van in which Mr Jackson carried the cigarettes had been breached. He had parked the van outside a shopping centre and went into the centre to speak to a customer. When Mr Jackson returned to his van he found that the alarm in his vehicle had sounded, although he had been unable to hear the alarm whilst he was in the shopping centre. Mr Jackson found that the side door to the van was unlocked. He was unsure whether he had forgotten to lock the door or whether somebody had broken into the vehicle. A quantity of cigarettes was found to be missing from the vehicle. As a result of this incident, Mr Jackson was sent a letter from Graham Oakley, who was then the state manager of the respondent in Western Australia, in the following terms: