Cahill v Nomah Pty Ltd t/a BP Ashgrove; Manchon v Nomah Pty Ltd t/a BP Ashgrove [2005] QIRC 107 (2005) 179 QGIG 835

[Extract from Queensland Government Industrial Gazette, dated 19 August, 2005, Vol. 179, No.18, pages 835-838] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Mr Daniel Cahill AND Nomah Pty Ltd t/a BP Ashgrove (No. B437 of 2005) Mr David Manchon AND Nomah Pty Ltd t/a BP Ashgrove (No. B459 of 2005) DEPUTY PRESIDENT SWAN 3 August 2005 DECISION There are two applications before the Commission. The matters were heard as one as each contained similar facts and related to the one respondent. The applicants are: Mr Daniel Cahill – application No. B437 of 2005 Mr David Manchon – application No. B459 of 2005 Mr Cahill had worked for Nomah Pty Ltd (the Ashgrove BP station) (the respondent) as a casual console operator from 28 August 2002 until his termination from employment for alleged gross misconduct on 2 March 2005. Mr Manchon had also worked for Nomah Pty Ltd (the Ashgrove BP station) as a casual console operator from 19 November 2002 until his termination from employment for alleged gross misconduct on 2 March 2005. Mr John Hamon, Managing Director of the respondent business, stated that he dismissed both employees for “gross misconduct” because they “took property of Nomah Pty Ltd without permission or payment.”. The BP Ashgrove has installed, within various sections of its buildings, video cameras. There is a camera which concentrates on the console area. It has not been refuted by the respondent that there is also a camera situated in a room behind the console area which is variously used by the Manager of the station and by employees. Apparently, this area is used by employees also because it is the only place at the station which has a chair. Mr Hamon states that because of the high level of loss of stock (mostly cold drinks) recorded at this facility, he became more vigilant in viewing the tapes from the video cameras to observe the actions of employees. It was during one of these screenings that the Site Manager became aware that Mr Manchon (who was not rostered to work on this particular day) had come into the station and taken two cans of Red Bull from the refrigerator. He had given one of these to Mr Cahill, who was working at the station at the time and both drinks had been consumed. It was apparent that no payment had been made for these drinks and that no record had been kept as a reminder to pay for these drinks at some later stage. As well, the Site Manager had also observed on a video Mr Manchon, whilst at work, consuming a “freezie” drink without any apparent payment having been made. Both employees were requested to come to the station for an interview with Mr Hamon. The applicants were not told the purpose of the meeting. Mr Hamon asserts that, for convenience, it was his usual practice to have written a standard notice of termination drawn up beforehand for any employee in the event that they were dismissed. Also, on site, was a pro forma letter of a final written warning. Mr Manchon was interviewed first by Mr Hamon and the Site Manager. Mr Manchon recalled that he had removed the two Red Bull drink cans from the refrigerator and that he had a conversation with Mr Cahill at the time whereby Mr Cahill advised that it was his turn to “shout” Mr Manchon. On the question of the “freezie” drink, Mr Manchon said he had forgotten to pay for this drink. Mr Hamon stated that Mr Manchon “at this stage, showed no remorse and made no offer of restitution.”. Mr Manchon disputes this and says that he had offered to pay for the drink. I accept this statement as truthful. Mr Cahill was then interviewed by the same Managers. Mr Cahill remembered the incident of the two Red Bull cans and confirmed Mr Manchon’s version of events regarding the “shout”. He also stated that, after being handed the drink, he had gone to his bag, which was placed in the back room, to pay for the drinks but discovered that he did not have his wallet with him and subsequently he had forgotten to pay. Mr Cahill, according to Mr Hamon, also showed no remorse and did not offer to pay for the drinks. -- 1 of 4 -- 2 Mr Hamon states that he then had a discussion with the Site Manager, who had confirmed that both employees had been reasonable employees, but in assessing the overall situation, he had determined to dismiss both employees. He stated that he “would be setting an unneeded precedent for retaining the employ of staff who have stolen from us.”. Both employees submit that they were not advised of the purpose of the meeting; that they were not advised that they could have someone with them at the meeting and that the respondent had not investigated the matters properly. Mr Cahill said that, had the respondent properly viewed the video which had recorded events in the room behind the console, it would have recorded that he had gone to his bag shortly after receiving the can of drink from Mr Manchon and would have showed that he was looking for something. In this case, it was his wallet he had been looking for. Interestingly, the respondent neither confirmed nor denied that a video had been operating in this room. Certainly, no testing of that video was conducted by the respondent. Sufficient reference was made to the video by Mr Cahill during the course of his evidence, with no response provided by the respondent. The inference can be drawn that the video did exist, but that it had not been viewed by the respondent. It may not have provided conclusive evidence to support Mr Cahill’s version of events, but it may have gone some way to corroborating part of his defence – i.e. that he had every intention of paying for the drinks, but for the absence of his wallet in his bag on that day. Mr Hamon points to his Policy document entitled “Staff Purchases and Payment”, which had been provided to all employees, which states, inter alia: “It is NOT acceptable to – Make the registration and/or payment for purchase at some later time To rely on another employee (or other party) to make registration and/or payment To forget to make the registration and/or payment Under no circumstances will any of the requirements of this policy be waived or varied unless in writing and only by the undersigned. Any contravention of these requirements shall be regarded as serious misconduct. The consequences of serious conduct by an employee is immediate termination of employment as well as in the case of stealing the involvement of the police. (note that the law courts consider stealing from ones employer far more serious than stealing from a third party).”. The Police had been notified by the respondent of these events, but the Police had determined not to take the matter any further because of the nature of the issues involved. Both applicants state that they had often worked overtime for the respondent but that they were forbidden to record any overtime on their time-sheets. They both claim that a written instruction had been attached to the time sheet book which stated that they could only record the hours for which they were rostered and not overtime worked. Mr Manchon, in his early days of employment with the respondent, had been unsure how to record the hours he worked each day and had taken to including the overtime worked, not for payment, but because he thought he should record the hours he had been at work. The recordings showed that he had worked an extra two hours per shift until such time as he was aware that he could not record these hours. Mr Hamon seemed unaware of the notice which had been attached to the time sheets, however, he must have been aware that the employees might work beyond their normal hours and not be paid overtime, as there was a requirement not to leave any work outstanding for any other employee to perform at the end of one’s shift. After hearing the evidence of both applicants, I have easily formed the view that neither had the intention of stealing from their employer. Both are 21 year olds currently pursuing University degrees. Both worked between 20 to 25 hours per week. Neither had ever been reprimanded by the respondent during the period of their employment and the Site Manager believed them to be reasonable employees. Both applicants had attended a local school in Ashgrove and both say that many friends from school call into the station. Both face the humiliation of having been dismissed for stealing from their employer. As well, both have arranged their employment around their studies and live near to the station. Mr Hamon states that he has faced considerable problems with goods which have gone missing from Ashgrove and other stations. Interestingly, the video tapes showed only the taking of the two cans of drink and the “freezie” – therefore, one can only presume that any other “theft” was occurring in areas without video surveillance. After observing both applicants during the course of their evidence, I have formed the view that both were truthful in their version of events. I have accepted that, when handed the cans of drink from his friend, Mr Cahill fully intended paying for same. I accept that he went to his bag to pay for the drinks out of his wallet. When that couldn’t occur, I -- 2 of 4 -- 3 accept that while he intended to ultimately pay for the drinks, he forgot to do so. Around this particular event, Mr Manchon should not have been reprimanded at all. Mr Manchon was upfront in that he had taken a “freezie” one day, but he couldn’t remember whether it was a complete drink, or half full. Apparently, sometimes a container is put under the drink outlet because it may have been dripping etc. This latter point is accepted by Mr Hamon, although he states that Mr Manchon was viewed as drinking from the container. After the dismissal the employer became aware of telephone calls Mr Manchon had been making from the respondent’s telephone at the station. While one call lasted a considerable period of time most were of a short nature and largely unexceptional. It would have been appropriate for the respondent to have brought this matter to the attention of Mr Manchon. The events which had occurred at this workplace do not constitute “gross misconduct” in my view. I have accepted that there was no intent on the part of the applicants to steal from the employer. An error of judgement occurred whereby the employees should have remembered to have paid for the drinks. Possibly a first warning, in these circumstances, would have been fair and reasonable. I accept that what occurred is against the employer’s policy. However, as with any policy, there are always occasions when the implementation of the policy to the hilt renders an injustice to someone. Explanations must be listened to by the employer and considered accordingly. In this case, the applicants were denied any form of natural justice. They should have been advised as to the purpose of the meeting to be held with the employer and should have been given time to consider their responses. Both had enjoyed a good working relationship with the respondent. Both had been reliable workers. They were taken by surprise when confronted by management. It must be said that the respondent’s concerns seem a little extreme in the circumstances. The respondent was content to avoid its contractual obligations with the applicants by working them well beyond the hours for which they were paid with little heed to their rights. These applicants didn’t complain about their situation because, I suspect, they were unaware of their lawful right to be paid overtime. They were also advised in writing on the time sheet book that they could not put down the hours actually worked, only the hours for which they were rostered. In all of this, the respondent certainly had the right to enquire from the applicants about their actions concerning the cans of drinks. He also had an obligation to consider their responses. The fact that he had beforehand in his possession letters of termination for gross misconduct suggests to me that he had no intention of listening to their version of events. The worst which should have occurred is a warning from the applicant – and certainly not the pro forma “final warning” which was kept on the premises. Perhaps at the time of issuing any warning, the respondent might also have considered a discussion around the applicants’ right to be paid lawfully for the work they had performed. This is not to suggest that “two wrongs make a right”, however, there is a touch of hypocrisy in all of this. In any event, none of this occurred. The applicants’ dismissals are unfair and harsh in the extreme (see s. 73 of the Industrial Relations Act 1999) (the Act). In the interim, between the conciliation conference before the Commission and this hearing, an offer had been put to the applicants by the respondent to settle the matter. The offer was vague in that while it offered re-employment to the applicants, neither were informed as to where they might be employed (and it was presumed the offer would not be at the Ashgrove station), how many hours employment they might be given and whether those hours could fit around their studies. To my mind, it was not a “bona fide” offer to settle. More significantly was the offer to make a payment of compensation. Without disclosing what was offered, in my view it was insufficient to compensate the applicants for their harsh treatment. In taking into account the amount of compensation to be paid to the applicants (see s. 79 of the Act), I have considered their age, their study commitments, the close proximity of their work, their availability to work any extra (unpaid) hours required of them by the respondent, their ability to obtain other reasonable work, their solid work ethic, the nature of the dismissals, the aspersions cast upon their character by the employer and the fact that their employment record with the respondent had been good for the period of their employment. One applicant has performed some work since the termination of his employ, while the other has been unable to find casual work. I have found reinstatement of the applicants to be an impracticable remedy. I propose to award to the applicants an amount of compensation. In so doing, I have considered the statutory requirements of s. 77 of the Act. Mr Cahill is to receive the amount of $4,380.00 within 21 days from the date of release of this decision. Mr Manchon is to receive the amount of $4,080.00 within 21 days from the date of release of this decision. -- 3 of 4 -- 4 Order accordingly. D.A. SWAN, Deputy President. Appearances: Hearing Details: 2005 28 July Released: 3 August 2005 Mr G. Cahill of Hunt & Hunt Lawyers for both applicants. Mr G. Treacy of the Motor Trades Association of Queensland Industrial Organisation of Employers for the respondent. Government Printer, Queensland The State of Queensland 2005. -- 4 of 4 --