Carswell-Price v Cleveland News and Casket [2003] QIRC 223 (2003) 174 QGIG 1379

12 December , 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1379 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Pamela Carswell-Price AND Cleveland News and Casket (No. B974 of 2003) COMMISSIONER FISHER 2 December 2003 Application for reinstatement – Applicant alleges constructive dismissal – Respondent contends applicant voluntarily resigned employment – “Topped” magazines free to staff – Publications placed into “topped” bag – Incorrect bag handed to applicant – Publications not topped – Applicant purchases one publication – Applicant claims to have found two publications in rubbish – Staff meeting – Police consulted – Applicant denies theft – Applicant given option of a police investigation or resignation – Applicant resigns – Constructive dismissal found – Case law – Applicant found to have lied about original site of publications – Standard of proof – Insufficient and inadequate investigation by respondent – Dismissal found harsh, unreasonable and unjust – Employment relationship irretrievably broken down – Compensation – Notice period awarded – Three weeks’ pay – Costs reserved – Costs submissions to be lodged within 14 days of date of decision. -- 1 of 5 -- 1380 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 December , 2003 DECISION Pamela Carswell-Price has filed an application seeking reinstatement to her former position of Shop Assistant with the Cleveland News and Casket Agency. Ms Carswell-Price was employed from 11 March 2001 until her alleged constructive dismissal on 26 May 2003. The respondent refutes the allegation of constructive dismissal and contends that the applicant voluntarily resigned her employment. Before going to the facts of the matter, it is useful to explain certain aspects of the work in a newsagency and this newsagency in particular. One of the tasks that is performed is to return unsold magazines to the distributors to allow the newsagency to receive a credit. In some cases the whole magazine is returned in other cases only the front cover or part of the front cover of the magazine is returned. The process of removing the front cover in whole or in part is known as “topping”. At the Cleveland News and Casket Agency the proprietors permit their employees to take for their own use and without cost those magazines that have been topped. Some magazines may also come with a bonus or complementary issue which is adhered to the magazine to be sold. From time to time these magazines become separated. The proprietors of the Cleveland News and Casket Agency also permit their employees to take without cost bonus or complementary issues for their personal use. Each staff member has a plastic bag kept under one of the counters into which the topped or discarded magazines are placed. All staff seem to be aware of each other’s preference in magazines. The staff member performing the topping is then able to put the topped magazines into the others’ bags. On Wednesday 21 May 2003 Ms Carswell-Price was tidying the shelves in the newsagency. While engaged in this task she encountered two Australiana publications and a “Cooking with Tommo” cookbook. Ms Carswell-Price removed these from the shelves and placed them in her topped magazine bag. In her evidence Ms Carswell-Price said she did this because she believed the two Australiana publications were discards, i.e. had become separated from the main issue. Unlike other publications they did not have price tags or bar codes on their front covers. In relation to the cookbook Ms Carswell-Price said she intended to peruse it over her lunch hour to decide whether to purchase it. However, Ms Carswell-Price said that because the newsagency had been busy she forgot that it was in her bag. The end of Ms Carswell-Price’s shift coincided with the end of the shift of another employee, Natasha Davis. Ms Carswell-Price and Ms Davis were handed topped magazine bags by a third employee. Later that night, when Mr Carswell-Price looked in the bag and remarked on its contents, Ms Carswell-Price discovered that she had been handed Ms Davis’ topped magazine bag. The next morning Ms Carswell-Price met Ms Davis in the car park and returned her topped magazines. At that time Ms Davis was unaware that the wrong topped magazine bag had been given to her. She gave no thought to the matter at that stage. Later that day Ms Carswell-Price paid for the cook book. She said she asked Ms Davis to bring in the cookbook as she had purchased a copy. Ms Davis denied this conversation occurred. On Friday night Ms Davis’ mother telephoned her to advise that Ms Davis’ sister, who had stayed the night with Ms Davis on Wednesday 21 May 2003, had inadvertently picked up the topped magazine bag. More importantly she told Ms Davis that there were three magazines in the bag that had not been topped. On Saturday night, by which time Ms Davis had retrieved the bag, she examined the contents and confirmed that her mother’s advice was correct. Ms Davis attempted to contact one of the proprietors of the newsagency, Lorraine Riseley, on Sunday morning but to no avail. Late that afternoon Ms Davis spoke to Ms Riseley who advised her to show the books to her husband on Monday morning and then to put them back on the shelves. Ms Davis followed these instructions, arriving at the newsagency early, and before Ms Carswell-Price, to do so. Later that morning Ms Davis told Ms Carswell-Price that the books had been returned to the shelf. During their brief conversation Ms Carswell-Price said that she had found the two Australiana publications in the rubbish. On reflection on the matter Ms Riseley decided that she could not let the matter rest. She telephoned the newsagency and asked Ms Davis to remove the books from the shelves and to place them on her desk. On Tuesday 27 May 2003 Ms Riseley told Ms Carswell-Price that a staff meeting was to be held after the end of her shift on Wednesday 28 May 2003 and asked her to attend. At that time Ms Riseley had intended to hold a meeting of all staff but overnight, changed her mind. Ms Riseley informed all other staff except Ms Carswell-Price that the staff meeting had been cancelled. On Wednesday 28 May 2003 Ms Riseley telephoned the Cleveland Police Station and spoke with Detective Senior Constable Tuckerman. This police officer had recently had dealings with Ms Riseley in relation to an investigation of another employee, Anita, who had stolen approximately $30,000 from Cleveland Newsagency. Ms Riseley sought advice from Detective Senior Constable Tuckerman in relation to the situation with Ms Carswell-Price. Based on Ms Riseley’s information that Ms Carswell-Price had put the publications in her topped magazine bag and had intended to take them home with her, Detective Senior Constable Tuckerman is said to have given advice that those actions constituted an intention to steal and that was considered to be the same as stealing. At 5.30 p.m. Mr and Ms Riseley met with Ms Carswell-Price. The evidence of Ms Riseley and Ms Carswell-Price of their discussion is substantially the same but differs on a couple of key points. It is important to note that none of those involved took contemporaneous notes and Mr Riseley did not give evidence in the matter. The meeting commenced by Ms Riseley holding up the three publications in question and asking Ms Carswell-Price what she knew about them. Ms Carswell-Price said that she had intended to look at the cookbook. On Ms Riseley’s evidence Ms Carswell-Price responded that she had intended to take the cookbook home to look at it. Both agreed that at that point Ms Riseley reminded her that nothing was to leave the shop without being paid for “especially after Anita” and that Ms Carswell-Price acknowledged this. Ms Riseley then asked about the two Australiana publications. Ms Carswell-Price said she had found them in the bin. When Ms Riseley responded that this was unlikely given they had price tags on them, Ms Carswell-Price said that she had not seen them. Ms Riseley told her that she did not believe her explanations. Ms Riseley asked Ms Carswell-Price “where do we go from here?”. Ms Carswell-Price replied that “she didn’t know but that she didn’t steal the books.”. Ms Riseley then said that Detective Senior Constable Tuckerman could be called or that Ms Carswell-Price could resign. On the evidence of Ms Carswell-Price she said that Ms Riseley told her that they would get the same police officer who had charged Anita and further, that if Ms Carswell-Price was charged she would have difficulty getting a job. Ms Carswell-Price said that she did not have a choice. Ms Riseley said that there was a choice but Ms Carswell-Price did not see it that way and said she would leave. Ms Riseley told her that if anyone asked she would tell them that she had left of her own accord. As she left the store Ms Carswell-Price told other staff that she had been sacked. Immediately after the interview Ms Riseley appointed a junior casual employee to Ms Carswell-Price’s full-time position. That night Ms Carswell-Price telephoned Ms Riseley. She had intended to try to seek to retain her job but, having received short shrift from Ms Riseley, Ms Carswell-Price did not raise the matter. -- 2 of 5 -- 12 December , 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1381 On 11 June 2003 Ms Carswell-Price filed her reinstatement application. After the respondent had received notice of the conciliation conference, Ms Riseley again contacted Detective Senior Constable Tuckerman about Ms Carswell-Price to activate a police investigation into the matter. The police contacted Ms Carswell-Price and she attended a police interview with her Solicitor on 2 July 2003. At the time of the reinstatement hearing no further action had been taken by the police in respect of Ms Carswell-Price. In her evidence Ms Riseley said that if the applicant was successful in receiving reinstatement or compensation she would contact the police to ensure the investigation into the actions of Ms Carswell-Price would continue. In her view the investigation remained on foot but this seemed not to be the view of the applicant’s representative. Resignation or Constructive Dismissal Before dealing with whether the termination of employment was by way of constructive dismissal or resignation I should quickly deal with a suggestion raised in the respondent’s submissions that Ms Carswell-Price abandoned her employment as she left the store at the end of the meeting and did not return. The meeting was held in Ms Carswell-Price’s own time as she had completed her rostered hours and she was not paid for the time of the meeting. Given the turn of events at the meeting it is unsurprising that Ms Carswell-Price left her place of employment never to return. This, however, does not constitute abandonment of employment. The respondent contended that the Commission had no jurisdiction to entertain the reinstatement application of Ms Carswell-Price as she had voluntarily resigned her employment. She had been given a choice as to whether the police would be called (on Ms Riseley’s evidence) to investigate the matter, or to resign. It was submitted that Ms Carswell-Price had freely elected to resign her employment. Ms Carswell-Price contended that she was not presented with a free choice but that she had been given a “resign or be sacked” ultimatum. In her evidence Ms Carswell-Price said that at the meeting on 28 May 2003 Ms Riseley did not say that the police would be called to investigate the matter, only that the police would be called. Further, the police officer to be involved was the same who had been involved in an investigation that had led to another staff member being charged and convicted of a criminal offence. By the time the “offer” of police involvement had been made Ms Riseley had already indicated that she did not believe the explanation given by Ms Carswell-Price. In that context Ms Carswell-Price believed that she had no choice but to resign. In my view the cessation of employment must be characterised as a constructive dismissal. I have reached that view for the following reasons. It has long been accepted in this jurisdiction that a dismissal may be conveniently described as a termination of employment at the initiative of the employer and without the genuine consent of the employee (Dowdell v Sunlite Glass Bricks (1997) 155 QGIG 785). In Allison v Bega Valley Council IRC 1166 of 1995 a Full Bench of the Industrial Relations Commission of New South Wales said: “Although the term ‘constructive dismissal’ is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?”. Both in the above matter and in Iskander v Brisbane Display and Shopfitting Pty Ltd (1997) 154 QGIG 806, the requirement is to go past matters of form and look at the whole of the facts involved. In the present matter Ms Riseley cancelled the staff meeting without informing Ms Carswell-Price and had not explained the purpose of the meeting. Ms Riseley did not make an offer to Ms Carswell-Price to have a witness present, which given the seriousness of the matter to Ms Riseley, would have been both sensible and reasonable. It must also be borne in mind that both Mr and Ms Riseley were present at the meeting, although it seems only Ms Riseley spoke. Further, prior to setting out the options, Ms Riseley had told Ms Carswell-Price that she did not believe her explanations. It is the case that Ms Riseley invited Ms Carswell-Price to volunteer a response to the situation, however, it was Ms Riseley who ultimately placed the alternatives before Ms Carswell-Price. Ms Riseley did not offer the opportunity to Ms Carswell-Price to consider her options carefully, for example, overnight or to otherwise take advice from her family or solicitor. In evidence I asked Ms Riseley what she would have done had Ms Carswell-Price opted for the police to be called. Ms Risley’s response was that she would have stood Ms Carswell-Price down on full pay pending the investigation. Although I am unaware whether this course of action was in the mind of Ms Riseley at the time of the interview with Ms Carswell-Price, it is clear that Ms Carswell-Price was not informed of it. Accordingly, one can only speculate about whether Ms Carswell-Price would have then opted to resign if she had been aware of the proposed process. It is also abundantly clear from both her evidence and her actions that the “Anita” situation coloured Ms Riseley’s view of the matter. While the effects on a small business of a theft of $30,000 by a trusted staff member can readily be appreciated, it is quite another thing to conclude that the situation involving Ms Carswell-Price was a recurrence of the Anita situation. In my view Ms Carswell-Price has been unfairly imbued by the unrelated actions of another staff member. In my view it matters little whether Ms Riseley said that she would call the police to investigate the matter or simply call the police. Ms Riseley believed that Ms Carswell-Price to have been involved in criminal activity. She was firmly of the view that Ms Carswell-Price intended to take the publications home without paying for them, had conveyed this to Detective Senior Constable Tuckerman and had consequently been informed by him that “intent to steal was the same as stealing”. I am satisfied that when Ms Riseley told Ms Carswell-Price that one option was to call the police her purpose was to convey her belief that Ms Carswell-Price had acted dishonestly. I am further satisfied that it was Ms Riseley’s intention not to have Ms Carswell-Price remain in her employ after the meeting. Finally, when Ms Carswell-Price left the meeting she told other staff she had been sacked. This confirms the view that Ms Carswell-Price did not believe she was given a choice of resignation, free of threat from the employer. In all of the circumstances I am satisfied that Ms Carswell-Price was constructively dismissed. Was the Dismissal Harsh, Unjust or Unreasonable? The applicant contended that she did not steal nor did she intend to steal the items in question. That the goods left the newsagency was not of her doing. Moreover, on realising that the goods had left the store, she had paid for the cook book. Her actions in not paying for the two Australiana publications were consistent with her belief that they were discards. The applicant also advised of other occasions where she had paid for goods to support her position that she knew to purchase items other than topped magazines and discards. -- 3 of 5 -- 1382 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 December , 2003 The respondent argued that the actions of Ms Carswell-Price could only be described as dishonest. She had placed the items in her topped magazine bag and not where staff members proposed purchases would be usually placed. It is alleged that although security cameras are strategically placed around the interior of the shop that the shelves from which Ms Carswell-Price removed the publications were not covered by the cameras and this was known to her. In addition, Ms Carswell-Price told Ms Davis and later Ms Riseley that she had found the two Australiana publications in the rubbish when, in fact, she had removed them from the shelves. Such responses could only be construed as attempts to conceal her actions. Further, the two Australiana publications were clearly not discards. This could be told by the bar codes and price tags on the reverse of the publications together with the name of the distributor. They had also been on the shelves for about twelve months and would have been well known to Ms Carswell-Price. Before going further it is useful to describe the Australiana publications. They are two in a series put out by the publisher concerned. They have soft cardboard covers the colours of the Australian landscape, are of approximately 32 pages and contain glossy pictures and some text. Ms Riseley said they were usually purchased by people travelling overseas for gifts because they were light weight and attractive. The wholesale value of each of the books is $3.00. I do not accept that Ms Carswell-Price acted covertly in removing the publications from the shelves. She was engaged in her normal duties. Moreover, when the issue of her removing these publications away from the range of the security cameras was put in cross-examination to Ms Carswell-Price she was clearly surprised that the area in question was not covered by them. In her evidence before the Commission Ms Carswell-Price said that she removed the Australiana publications from the shelves and had not, as she had told Ms Riseley and Ms Davis, found them in the rubbish. The only explanation that Ms Carswell-Price could provide as to why she had been untruthful to Ms Riseley was that she usually found discarded magazines in the rubbish. It was not the usual practice for staff who wished to purchase items to put them in the topped magazine bags. The evidence from other staff was that although there was no written policy at the time, items to be purchased were either placed on the counter near the register or in pigeon holes under the counter. Ms Carswell-Price denied that the system was this formalised but said that she had not put them in either of these places as there was a pile of books on the counter and she believed if she put the publications there they may be topped. She also said she thought they may get lost if she put them at the back of the counter as there were many to be sorted into the pigeon holes. The difficulty with her explanation of not leaving them on the counter is that the publications in question were not the type to be topped. Her reasons for not putting them in the pigeon holes were also discredited by other witnesses. I accept then that Ms Carswell-Price’s actions in placing them in her topped magazine bag were unusual and not consistent with the custom and practice in the store. It is a leap to conclude that Ms Carswell-Price intended to steal the publications. This is the accusation clearly levelled by Ms Riseley during the hearing. It was also her belief at the time she spoke to Ms Carswell-Price on 28 May 2003 although the allegation was not specifically put at that time. The standard of proof in reinstatement applications is the balance of probabilities. However, where the offence is of such gravity or may constitute a criminal offence then the matter must be determined on strict or cogent proof. Thus, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170). In my view the fact that Ms Carswell-Price immediately paid for the cookbook on learning that it had been removed from the store is consistent with her not intending to steal the publications. When paying for the cookbook she also had the opportunity to pay for the two Australiana publications. That she did not do so is also consistent with her belief, however mistaken, that they were discards and not to be sold. What must also be considered is whether Ms Riseley had an honest belief based on reasonable grounds that Ms Carswell-Price was intending to steal the publications in question. It is clear that at the interview Ms Riseley was unaware that Ms Carswell-Price had paid for a copy of the cookbook. It is also clear that Ms Riseley went into the meeting believing that Ms Carswell-Price had intended to steal the publications and that the newsagency had been fortunate that the wrong topped magazines bag had been given to Ms Carswell-Price. Further, it is clear that Ms Riseley believed that another Anita situation had occurred. All of these coloured Ms Riseley’s perceptions of the situation. However, Ms Carswell-Price did not help her situation by lying about the two Australiana publications. The fact that she lied could only have exacerbated Ms Riseley’s belief, which until that point was not based on reasonable grounds, that Ms Carswell-Price intended to steal the publications. The other matter which is of concern is that the employer cannot be considered to have “conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances.”. (See Bi Lo Pty Ltd v Hooper (1992) 531 IR 224). The Commission appreciates that the Cleveland News and Casket Agency is a small business and cannot be expected to conduct an investigation of the type that a business the size of Coles might do. However, there does not appear to have been any investigation of any substance in this matter. There were two telephone conversations with Ms Davis where she reported the incident and was later told to remove the books from the shelves. It is apparent that Ms Riseley intended to cede her responsibilities to the police. She intended for them to conduct all of the investigation for her without having done much herself. An employer certainly has the right to call for a police investigation where it believes that stealing or an intention to steal has occurred. However, it would be reasonable to expect that the employer had conducted some level of inquiry itself in order to conclude it had grounds for calling in the police. In the circumstances of this matter I am not satisfied that Ms Carswell-Price has been fairly treated by her employer. There was an inadequate and insufficient investigation by the employer into the matter and critical allegations were not squarely put to Ms Carswell-Price. For these reasons I find that the dismissal was harsh, unjust or unreasonable. However, the fact that Ms Carswell-Price was untruthful to her employer about where she found the two Australiana publications and did not place them in either of the usual areas for purchase militates against an award of reinstatement or a significant award of compensation. The trust and confidence which is an inherent part of any employer-employee relationship has been irretrievably broken by Ms Carswell-Price’s actions in this regard. Having considered all of the matters raised I am of the view that the most Ms Carswell-Price can receive is compensation equivalent to the amount she would have received had notice been paid. This is an amount of three weeks’ wages. Accordingly, I order that the Cleveland News and Casket Agency pay three weeks’ wages to Pamela Carswell-Price within 22 days of the date of release of this decision. -- 4 of 5 -- 12 December , 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1383 The applicant reserved her position in relation to costs. The respondent has already made submissions opposing costs. The applicant should consider her position in the light of this decision and the requirements of s. 335(1)(b) of the Industrial Relations Act 1999. Any submissions on the matter of costs are to be received within 14 days of the date of release of this decision. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2003 17 November Appearances: Mr R. Byrom (McKay Consulting) and with him Ms S. Harper for the applicant. Mr D. Katton (MDRN) Lawyers on behalf of the respondent. -- 5 of 5 --