Industrial Relations Commission of New South Wales CITATION : McCutchen v Grab It Accessories [2004] NSWIRComm 358 PARTIES : Rebekah Molly McCutchen Grab It Accessories FILE NUMBER: IRC 4150 of 2004 CORAM: Harrison DP CATCHWORDS : Application for relief from unfair dismissal - Allegation of theft - summary dismissal - theft denied - goods remained in store - arrangement for payment confirmed - proceedings ex parte - denial of theft not contested. Held - no evidence of dishonesty - termination harsh, unreasonable and unjust - compensation awarded. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Franklins Limited v Webb (1996) 72 IR 257 HEARING DATES: 11/19/2004 DATE OF JUDGMENT: 11/26/2004 APPLICANT Solicitor Mr L Sokulsky LEGAL REPRESENTATIVES: The Charlestown Law Firm RESPONDENT No Appearance JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 26 November 2004 MATTER NO IRC 4150 OF 2004 REBEKAH MOLLY MCCUTCHEN AND GRAB IT ACCESSORIES Application re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 ("the Act") DECISION [2004] NSWIRComm 358 1 The application in this matter was filed on 16 July 2004 and first listed for Conciliation and Directions before Redman C. on 29 July 2004, subsequently altered to 30 July 2004 at the request of the Respondent. 2 Mr A Willems of Industrial Relations Consultancy Pty Ltd, appeared with and on behalf of Rebekah McCutchen, the Applicant. Mr Jeremy King appeared on behalf of the Respondent. Some discussion ensued between the parties with the assistance of the Commission, resulting in adjournment to allow the parties to further confer with a view to settlement. Proceedings were stood over with leave to Ms McCutchen to apply for further proceedings before 6 August 2004. 3 The matter was reallocated to the Commission as presently constituted on 6 August 2004, on which date correspondence was received from Ms McCutchen seeking further proceedings. 4 The matter was listed for Further Conciliation and Directions on 17 August 2004. 5 On 121 August 2004 Mr Sokulsky, Solicitor of the Charlestown Law Firm, submitted a notice of appearance advising that he acted on behalf of the Applicant and requested a deferral of proceedings on the basis that he had just received instructions and sought further time to prepare the matter. 6 Proceedings scheduled for 17 August 2004 were deferred to 12 noon on 23 August 2004. On the morning of 23 August 2004 facsimile advice was received from the Respondent advising that due to unforeseen circumstances Mr King, the Respondent's representative in the earlier proceedings before Redman C., had been detained on business in Queensland and would be unable to attend. This advice was not received in time to inform the Applicant's representative of the difficulty. During the course of proceedings on 23 August 2004 Mr Sokulsky was informed of Mr King's difficulty and directed to communicate with him with a view to resolution or clarification of issues in dispute. The proceedings were adjourned to 27 August 2004. 7 On 27 August 2004 Mr Sokulsky appeared. There was no appearance by or on behalf of the Respondent. Mr Sokulsky reported that he had some discussion with Mr King which was inconclusive. Mr Sokulsky pressed for the matter to be determined in arbitration. Directions were issued to bring the matter to hearing on 19 November 2004 and those directions conveyed to the parties by registered mail. 8 On 19 November 2004 Mr Sokulsky continued his appearance, with and on behalf of Ms McCutchen. There was no appearance by the Respondent. Mr Sokulsky pressed for determination of the matter ex parte. Mr Sokulsky relied upon the affidavit of Rebekah McCutchen ("Rebekah") (exhibit 1) and her sister, Naomi McCutchen ("Naomi") (exhibit 2). The matter was not defended, the Respondent having failed to file any material in accordance with directions. The Evidence 9 Rebekah commenced employment with the respondent on 12 December 2002. Her duties involved customer service, handling cash transactions, storeroom duties, cleaning and general administrative work. 10 On 30 June 2004 Rebekah commenced work at around 1.30 pm. On arrival at the store she discovered Naomi was in the store and had selected some items for purchase. Naomi requested Rebekah to hold the items for her while she obtained more money from a nearby automatic teller machine (ATM). Naomi paid $2 for a single item and the rest were held for her return with additional funds. Before leaving the store Naomi placed the items she had selected into a small bag which she then put into her own backpack, placing the backpack in an open cupboard where all staff bags were kept. 11 Immediately upon Naomi's departure from the store the Manager, identified as Alex King, confronted the Applicant, accusing her of stealing on the basis that she had sold five items valued at approximately $17 for $2. Rebekah denied these circumstances, informing the Manager that her sister would return with money to pay for the rest of the items. 12 Rebekah's evidence is that the Manager swore at her, which caused her to be embarrassed as there were customers in the vicinity some of them friends of her parents. She was then ordered to leave the store immediately on the basis that she had perpetrated theft of goods. Rebekah again denied any wrongdoing, reminding the Manager that she was holding the goods pending her sister's return, stating that the store practice was to hold goods for customers, which she put occurs frequently. 13 During the course of this exchange Naomi returned with the money to pay for the items. The Manager left the area and made a telephone call to another company officer, then returned and demanded Rebekah leave the store or the Police would be called. Rebekah invited the Manager to do so, stating that nothing had been stolen and that no items had left the store. The Manager summarily dismissed Rebekah despite the presence of her sister with the money to pay for the goods. 14 Rebekah's evidence is supported by the affidavit of Naomi McCutchen, who adds that when she returned to the store Rebekah was very distressed and informed her that "he (her boss) has accused me of stealing and has made a big scene of it." Naomi deposed that she asked the Manager what was going on and was told that Rebekah had taken items without paying for them. Naomi informed the Manager that she was returning to pay for the items and showed him the money. In response, the Manager threw his arms in the air and walked away. 15 Pay slips attached to exhibit 1 reveal a wage rate of $14.955 per hour. The pay slip for the period 17 June to 23 June 2004 shows year to date wages of $14,150.08. Rebekah's evidence is that since the termination of her employment she has only been able to obtain intermittent casual employment and that the dismissal damaged her reputation. 16 The respondent has filed an employer's reply enclosing statements by Mr Alex King and Ms Renee Jones. These statements support the version set out in exhibits 1 and 2 and depart only on the issue of interpretation of the actions as stealing, and suggest that there was support for this view forthcoming by telephone enquiries to head office and the Police. CONSIDERATION 17 Mr Sokulsky did not refer me to any decided matters in his submissions. 18 The principles are well settled in Franklins Limited v Webb (1996) 72 IR 257, in which a Full Bench of the Industrial Relations Commission of New South Wales (Hungerford and Peterson JJ, Murphy C) dismissed an appeal against a decision of Mr Conciliation Commissioner Redman. The Commissioner had reinstated Mr Webb to employment with Franklins Limited following the termination of employment on suspicion of theft, despite that suspicion being completely devoid of any corroborating evidence. 19 The principles applied in Franklins v Webb place the onus of proof upon the accuser. That onus has not been discharged in this case. On the contrary, accepting everything that the Respondent says in the Employer's Reply and the material filed in the early stages of proceedings, the weight of evidence is in favour of the Applicant and does not support the allegation of theft. 20 Section 88 of Industrial Relations Act 1996 ("the Act") sets out the issues to be determined in an application pursuant to s 84. 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate take into account; (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 21 In consideration of the matters identified I come to the conclusion that the termination of Ms McCutchen's employment was harsh, unreasonable and unjust. 22 The reason for the termination had no basis in fact. If anything it may have amounted to a departure from good practice in ensuring another staff member is aware of transactions involving family and friends; and that goods be kept in the vicinity of the counter prior to payment. 23 There is no evidence of a policy or instruction to staff in respect to those matters and accordingly no adverse finding can be made in respect to the Applicant. There is no suggestion that Ms McCutchen had been other than a satisfactory and trustworthy employee from the commencement of her employment in December 2002. 24 Neither re-instatement nor re-employment are practical. Having regard to all of the circumstances of the matter and the earnings of the Applicant in the six months prior to dismissal, I assess compensation at $5,000. An order for payment issues herewith. 25 Matter No IRC 4150 of 2004 is so concluded. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 26 November 2004 MATTER NO IRC 4150 OF 2004 REBEKAH MOLLY MCCUTCHEN AND GRAB IT ACCESSORIES Application re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 ORDERS Pursuant to s89(5) of the Industrial Relations Act 1996 Grab It Accessories Pty Ltd is ordered to pay the amount of $5,000 (five thousand dollars) to Ms Rebekah Molly McCutchen within 21 days of the date of this decision. I so order. The Hon. R W Harrison DEPUTY PRESIDENT DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.