DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sione Amiatu
v
Toll Ipec Pty Ltd T/A Toll
(U2014/13166)

Franke Ioane
v
Toll Ipec Pty Ltd T/A Toll
(U2014/13167)

Marcello Mastroianni
v
Toll Ipec Pty Ltd T/A Toll
(U2014/13168)

Applications for relief from unfair dismissal - resignation - employer conduct - whether employees forced to resign - employer tells union official employees will be sacked and police will be involved - resignation proposed by union official to and accepted as alternative by employer - resignation in employer’s interests - employees forced to resign - employees dismissed within the meaning of the Fair Work Act 2009 (Cth) - reason for dismissal not valid - conduct of employees honest and misguided but not theft - employee conduct warranted discipline but not sufficient reason for summary dismissal - dismissal harsh - reinstatement not inappropriate - order for reinstatement - order for continuity of service - order for an amount of lost wages.

Introduction

[1] This decision concerns applications by three former employees of Toll Ipec Pty Ltd (Toll). The Applicants are Mr Sione Amiatu (U2014/13166), Mr Franke Ioane (U2014/13167) and Mr Marcello Mastroianni (U2014/13168) (collectively, the Applicants). In each case the Applicants seek relief from alleged unfair dismissal by Toll, pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] A person may only make an application for an unfair dismissal remedy if that person was dismissed from employment and was at the time of the dismissal protected from unfair dismissal by force of the relevant provisions of the Act.

[3] As will become more apparent below, there is an issue to be decided in relation to the circumstances in which the Applicants’ employment came to an end. However, there is no dispute that when the Applicants’ employment came to an end they were each protected from unfair dismissal by the operation of the Act. Moreover, there was no redundancy situation and their employer is not a small business.

[4] The employment history of the Applicants is set out below.

1. Mr Amiatu began employment with Toll on 5 September 2012. Mr Amiatu was employed as a Dockhand at Toll’s Altona Road depot. Mr Amiatu’s employment with Toll ended on 9 October 2014.

2. Mr Ioane began employment with Toll on 12 January 2012. Mr Ioane was employed as a Dockhand at Toll’s Altona Road depot. Mr Ioane’s employment with Toll ended on 9 October 2014.

3. Mr Mastroianni began employment with Toll on 5 September 2012. Mr Mastroianni was employed as a Dockhand at Toll’s Altona Road depot. Mr Mastroianni’s employment with Toll ended on 9 October 2014.

The incident of 6 October 2014

[5] The reasons for the termination of the employment of each of the Applicants arose from an event which occurred on 6 October 2014. On that day, the Applicants were working together in the “unsorts” area of the Toll Altona Road depot. During the course of their shift of work, Mr. Amiatu, and shortly after Mr Mastroianni and Mr Ioane, observed a cardboard box which apparently revealed the presence of what appeared to be items of the uniform work clothing worn by employees of Toll. The work clothing was contained in a cardboard box which was partially open, according to the evidence of the Applicants. The discovery of the box and its contents by the Applicants and the removal of several items of uniform work clothing from the box was observed by the CCTV surveillance system in the depot. The CCTV footage was shown on a number of occasions during the hearing of the application by the Commission.

[6] The uniform work clothing was of the style issued to workers for safety purposes, including high visibility features in the Toll corporate wardrobe style and was appropriate and common to the work of the Applicants and other employees at the Altona Road depot.

[7] In circumstances which will be addressed at greater length below, Toll became aware of the action of the Applicants which it characterises as theft, which it considered and submits was serious and wilful misconduct. Toll commenced investigative and disciplinary procedures in relation to the conduct of the employees.

[8] The Transport Workers’ Union of Australia (TWU) became involved in the situation through a workplace delegate and an organiser, the latter of whom made representations to Toll concerning the matter, which involved the organiser making a proposal for an agreement from Toll that the Applicants be allowed to resign their employment.

[9] On 8 October 2014, Mr Amiatu and Mr Ioane were interviewed by Toll management. Mr Mastroianni was interviewed on the 9th of October 2014. All the applicants then met with the TWU organiser, who dictated the terms of proposed resignations to the Applicants and supplied paper for them, upon which to record their resignations of employment with Toll, effective immediately, in the words expressed by him. The Applicants each wrote the resignations in the words as dictated by the TWU organiser on the pieces of paper and provided the resignations to Toll management. Although, there would seem to be some minor grammatical errors and inconsistencies in the hand written documents which were tendered during the proceedings. The Applicants were then immediately provided with termination pay statements and were escorted from Toll’s premises. The Applicants subsequently made the applications before the Commission arising from these circumstances.

[10] Toll submits the applications before the Commission are invalid as the Applicants were not dismissed within the meaning of the Act. Toll submits that the Applicants resigned of their own volition. Hence, Toll submits the Commission has no jurisdiction to hear and determine the applications.

Were the Applicants dismissed?

[11] It is appropriate to first consider whether the Applicants were dismissed within the meaning of the relevant provisions of the Act. Section 386 of the Act provides the circumstances in which a person will be dismissed for the operation of Part 3-2 - Unfair Dismissal of the Act:

“Meaning of dismissed

(1)  A person has been dismissed if:

(a)  the person's employment with his or her employer has been terminated on the employer's initiative; or

(b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2)  However, a person has not been dismissed if:

(a)  the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b)  the person was an employee:

(i)  to whom a training arrangement applied; and

(ii)  whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or

(c)  the person was demoted in employment but:

(i)  the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii)  he or she remains employed with the employer that effected the demotion.

(3)  Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”

[12] There is no dispute that the Applicants resigned in writing from their employment with Toll. Therefore, the question to be determined is; did the Applicants resign in circumstances prescribed by s 386(1)(b) of the Act?

[13] The line of authority concerning the approach to the relevant provisions of s.386 of the Act was recently reviewed by the Full Bench in Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613 (de Laps). In de Laps, the Full Bench cites the Full Bench of the Australian Industrial Relations Commission decision O’Meara v Stanley Works Pty Ltd (O’Meara), which states:

"In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether 'the act of the employer [resulted] directly or consequentially in the termination of the employment.' Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign."  1 (Citations Omitted)

[14] While the Full Bench in de Laps made further comments on the subject, in the factual circumstances of that case, in my view those comments do not alter the well established approach as cited in O’Meara as set out above.

[15] Further, the Full Bench in de Laps cites the Full Bench decision Kylie Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279 (Fingal Glen).  2 In Fingal Glen, the Full Bench observed that:

“The question of the nature of the employer conduct required to constitute dismissal will likewise vary greatly from case to case and according to all of the facts and circumstances of a particular matter."  3

The relevant circumstances

[16] The factual considerations relevant to the determination of this question are somewhat complex. There are certain aspects of the chain of events leading to the resignations of the Applicants which are highly relevant.

[17] In order to understand the facts it is first convenient to identify the persons who were involved in the relevant events following the shift of work on 6 October 2014.

[18] Mr Amiatou is a man of Samoan heritage. Mr Amiatou has a fair level of English language skills, however, I noted that at times his verbal expression is mildly inhibited. Mr Ioane is Mr Amiatou’s brother and on my observation he shares approximately the same level of language skills as described for Mr Amiatou. Mr Amiatou and Mr Ioane live together and they support their mother.

[19] Both Mr Amiatou and Mr Ioane were considered to be committed and satisfactory employees who were well regarded during their employment by Toll. Mr Amiatou and Mr Ioane were not at any time prior to the events of 6 October 2014 subject to counselling or warnings for poor performance or disciplinary action for misconduct of any kind.

[20] Mr Mastroianni was employed by toll for just over 2 years and 1 month. During Mr Mastroianni’s employment he was not the subject of counselling or issued with a warning for poor performance or subject to disciplinary action for misconduct of any kind. Mr Mastroianni was an OHS employee representative. It appears there was at times some tension between Mr Mastroianni and Mr Matthew O’Shannassy, who will be mentioned below, concerning time taken for discussion with other employees arising from Mr Mastroianni’s activities as an OHS employee representative.

[21] In addition, it appears there may have been some tension between Mr Mastroianni and the TWU concerning Mr Mastroianni’s industrial activities in relation to negotiations for and approval by Toll employees of an enterprise agreement. Mr Mastroianni had at some point been a union delegate.

[22] Mr O’Shannassy is the Melbourne Operations Manager of Toll, who became aware of the removal of the uniform work clothing by the Applicants on 6 October 2014 the following day. Mr O’Shannassy discussed this with Mr Robert McConville, the Southern Region Operations Manager for Toll, on or around 7 or 8 October 2014.  4 A chain of events followed which led to the termination of the Applicants’ employment.

[23] The evidence indicates that Mr McConville wanted to summarily terminate the Applicants’ employment and call in the police in relation to the incident of 6 October 2014.  5 However, Mr McConville was eventually persuaded to allow the Applicants to resign their employment.

[24] Mr John Rowe is a site delegate of the TWU for the transport drivers based at Toll.

[25] Mr Peter Banbury is the organiser and TWU official who became involved in events arising from the incident related to the items of Toll uniform work clothing on 6 October 2014 mentioned above and who engaged with Toll concerning the resignations of the Applicants.

[26] Mr Banbury was called to the site in relation to the incident of 6 October 2014 by Mr Rowe. Mr Banbury became the author of a proposal to Toll that Toll agree to allow the Applicants to resign, rather than be summarily dismissed.

[27] Mr Damian Sloane is employed by Toll Holdings Ltd as Senior Legal Counsel - Workplace Relations and Safety for the Toll Group of Companies. Mr Sloane is based in Sydney. Mr Sloane was approached by Mr Banbury to override the course of action to dismiss the Applicants, which Mr McConville intended, in order to “send a message” that “theft” would not be tolerated by Toll.

[28] It is now useful to further outline events between 6 October 2014 and 9 October 2014, which is the period between the time when the Applicants removed some of the items of uniform work clothing in the cardboard box and them being escorted from the Toll premises.

6 October 2014

[29] The Applicants worked an afternoon shift on 6 October 2014. Towards the end of the shift, the Applicants identified a cardboard box, which the Applicants say and I accept was partially opened, which contained Toll uniform work clothing.  6 The Applicants investigated the box and its contents. The Applicants removed several items of uniform work clothing, but not all of the contents of the box. The box contained various types of uniform work clothing in different sizes. The Applicants were recorded by CCTV cameras doing so. Mr Mastroianni left the workplace at the end of the shift wearing a jacket of uniform work clothing from the box. The CCTV footage shows Mr Mastroianni wearing the jacket leaving the workplace.

[30] It was accepted by Mr O’Shannassy that the surveillance of the depot by CCTV was well known.

[31] On or around 6 or 7 October 2014, Mr O’Shannassy became aware that the items of uniform work clothing had gone missing.  7

7 October 2014

[32] On 7 October 2014, the Applicants attended work wearing the items of Toll uniform work clothing removed from the cardboard box on the previous shift.  8

[33] Mr O’Shannassy commenced internal inquiries, reviewing invoices and CCTV footage as a result of becoming aware of the actions of the Applicants. Mr O’Shannassy determined that 2 Toll vests, 1 Toll jacket and 1 Toll beanie were missing from among the various items in the box. The vests were taken from the box and subsequently worn by Mr Amiatou and Mr Ioane. The evidence is somewhat inconclusive of the circumstances in relation to the beanie.

8 October 2014

[34] On 8 October 2014, Mr O’Shannassy contacted Mr McConville and informed him of what had happened.  9 At 2:00pm, Mr O’Shannassy met with Mr Ioane, with Mr Rowe and a security officer present. At 2:40pm, Mr O’Shannassy interviewed Mr Amiatu, with Mr Rowe and a security officer present. Mr Rowe had been called to the meeting by Mr O’Shannassy. Mr Ioane and Mr Amiatu were stood down. Mr Rowe telephoned the TWU and requested the attendance of Mr Banbury and his involvement in the matter. Mr Mastroianni was not in attendance at work on 8 October 2014 following a burglary at his home on the previous day or evening. On the evidence before me, I accept that the Applicants were not shown the CCTV footage at this time, nor were the Applicants shown it subsequently prior to the hearing of the applications.

[35] Mr Banbury rang Mr O’Shannassy following Mr Rowe’s request that he became involved and requested to see the CCTV footage. Mr O’Shannassy sought Mr McConville’s permission for Mr Banbury to view the CCTV footage. Mr McConville agreed. I accept that the proposal put by Mr Banbury to attend the site and view the CCTV footage was on Mr Banbury’s initiative. Mr Banbury was not in contact with the Applicants prior to his discussion with Mr O’Shannassy or during his viewing of the CCTV footage.

[36] Mr Banbury later telephoned Mr O’Shannassy to ask if the Applicants could resign their employment. The evidence of the Applicants is that Mr Banbury did this without consulting the Applicants, who at this time were unaware of his activities. Mr O’Shannassy telephoned Mr McConville to ask if the Applicants may resign. Mr McConville categorically refused Mr Banbury’s request as understood by Mr O’Shannassy, to “let these guys resign”.

[37] Mr O’Shannassy informed Mr Banbury of Mr McConville’s rejection of this enquiry. Mr Banbury informed Mr O’Shannassy that he would contact Mr Sloane. Mr Banbury called Mr Sloane and made representations that the employees wished to resign their employment, rather than be sacked. At this time the Applicants evidence is that they remained unaware of Mr Banbury’s activities. Mr Sloane called Mr McConville and proposed that Toll allow the employees to resign as proposed by Mr Banbury. Mr McConville, although of a very different mind, was persuaded to do so by Mr Sloane.  10

[38] Mr Sloane called Mr Banbury to inform him that Toll had agreed that the employees would be allowed to resign.  11

9 October 2014

[39] On 9 October 2014, Mr Mastroianni met with Mr O’Shannassy. Afterwards, Mr Mastroianni, Mr Amiatu and Mr Ioane met with Mr Banbury and Mr Rowe. On the evidence before me I accept that Mr O’Shannessy left the meeting so that the Applicants could meet and confer with Mr Banbury. It was then that Mr Banbury put forward the proposal of resignation to the Applicants. Mr Banbury provided the Applicants each with a piece of paper on which to record their resignations. Mr Banbury dictated the terms of the resignation. The Applicants wrote down their resignations as dictated by Mr Banbury on the page he provided, to the best of their ability.

[40] The Applicants then met with Mr O’Shannassy and handed the resignations dictated by Mr Banbury to Mr O’Shannassy. Mr Rowe had witnessed and signed all of the resignations. The Applicants were provided with a statement of their entitlements on termination of their employment, which had been prepared prior to the tender of their resignations by Toll. No payment in lieu of notice was included. The Applicants were then escorted from the premises.

Toll and Mr Banbury

[41] Toll submit that they communicated with Mr Banbury as the representative of the Applicants.  12 It is clear that Mr Banbury acted without communication or authorisation by Mr Amiatu and Mr Ioane when advancing the proposal to Toll that Toll “let these guys resign”. I return to the circumstances affecting Mr Mastroianni below. It is also clear that Mr McConville was convinced that the Applicants were guilty of theft of Toll property and that the offence was viewed with the utmost conviction. Mr McConville made his intent to dismiss the Applicants crystal clear to Mr Banbury. 13 Mr Banbury saw that Mr McConville had firmly set himself against resignation by the Applicants and would not entertain that outcome. This is corroborated by Mr O’Shannassy who said that Mr Banbury’s proposal for resignation was put to him and that he had contacted Mr McConville who had refused. 14 Mr Banbury went above Mr McConville to Mr Sloane, as a means of seeking Toll’s agreement to allow the Applicants to resign.

[42] Mr Banbury convinced Mr Sloan that it would be in Toll’s interest if the employees were allowed to resign. Mr Sloan called Mr McConville. Mr McConville wanted to “send a message” to the rest of the workforce that the actions of the Applicants would not be tolerated by “dismissing” them. After a brief discussion, Mr McConville yielded to Mr Sloan’s view that it would serve Toll’s best interest to agree with Mr Banbury.

[43] It is therefore inherently probable that Mr Banbury was an energetic advocate to the Applicants of the merits of them resigning their employment in the meeting on 9 October 2014. He did so with the express agreement and approval of Toll because according to Mr McConville’s evidence Mr Sloane’s position was that “it is about getting the best outcome for the business” and “if we let them resign that will be the end of it.”  15

[44] On my view of the evidence, the inherent probability and the irresistible inference is that the motivation of Mr Banbury was to avoid the Applicants’ employment being terminated summarily for reason of alleged theft, comprising serious and wilful misconduct. Moreover, I consider that Mr McConville was determined to terminate the Applicants for that reason until persuaded by Mr Sloan that allowing the Applicants to resign was in Toll’s best interests.

[45] At this point, as an observation, there was no impediment to Mr Banbury, at any time, advising the Applicants that they had best resign to avoid the stigma which may be attached to dismissal for reasons of serious and wilful misconduct, regardless of any involvement of Toll in that decision. However, Mr Banbury sought Toll’s consent to the Applicants resigning. It must be inferred that for some reason Mr Banbury considered it would be to the Applicants’ advantage; presumably an advantage which they could not obtain by unilateral resignation. I consider that Mr Banbury was seeking a collateral arrangement with Toll for the employment to end by the Applicants resigning on terms agreeable to Toll. Toll dealt with Mr Banbury on this basis and became involved in this course of conduct and ultimately agreed that Mr Banbury may pursue the proposition with Toll’s concurrence.

[46] I also consider that Toll treated Mr Banbury’s proposal as a course of conduct which Toll would agree to on the basis that Mr Banbury would communicate that to the Applicants and as such would most likely result in the Applicants’ resignation.

[47] While Toll’s position throughout the hearing was that it communicated with Mr Banbury on the basis Mr Banbury was a representative of the Applicants, on the evidence before me, the Applicants had not authorised the proposal for their resignations when it was put to Toll. Regardless of the issue of authorisation of the proposal, I am relevantly concerned with the course of conduct of Toll in the circumstances which lead to the termination of the Applicants’ employment and in particular the probable result of Toll’s conduct when it engaged with Mr Banbury as described.  16

[48] It would have been open to Mr McConville and Mr Sloane to simply advise Mr Banbury that the Applicants could make up their own minds whether to resign their employment. However, the evidence of Mr Banbury’s interaction with Mr O’Shannassy, Mr McConville and Mr Sloane, and the conversations between Mr Sloane and Mr McConville and Toll’s communication to Mr Banbury, that resignation was an agreed outcome from Toll’s perspective, indicates that Toll was dealing with Mr Banbury’s proposal and representations as a course of action which would be an alternative to summary dismissal, with which Toll would agree, for its own reasons and in its own interests. There can be little, if any, doubt that this course of conduct, from Toll’s perspective, would most probably result in the termination of the Applicants’ employment by resignation.

[49] I therefore consider that the whole basis of the communication between Mr O’Shannassy, Mr Banbury, Mr McConville and Mr Sloane was that the resignation of the Applicants would be an alternative to dismissal for serious and wilful misconduct comprised of theft. It is difficult to see any other rationale for the interactions between the persons involved. I set out below further particulars of the relevant interactions by the individuals involved.

Mr McConville

[50] Mr McConville was clearly determined to dismiss the Applicants for serious and wilful misconduct. Mr McConville resisted resignation by the Applicants, and was only persuaded by his conversations with Mr Sloane that it was in Toll’s best interest if the Applicants’ employment was terminated by their resignation. This was after Mr Sloane expressed a level of surprise that Mr McConville might not see the benefit to Toll of the Applicants’ employment coming to an end by resignation in the circumstances. It is Mr Sloane’s evidence that he and Mr McConville had a conversation to the following effect:

Mr Sloane: “I have just had a call from Peter Banbury of the TWU. Apparently there are some employees who took some stock and want to resign rather than being sacked.”

Mr McConville: “That’s right.”

Mr Sloane: “I think you should let them resign.”

Mr McConville: “Really? I thought dismissing them would send a strong signal to the workforce that this type of behaviour will not be tolerated.”

Mr Sloane: “I understand that, but the fact that the guys are no longer employees by Toll will send a clear enough signal. All that we should care about is that these guys are no longer employed by us. We don’t need to sack them. If they resign they will have better prospects of getting another job, and there is less chance of them taking action against Toll.”

Mr McConville: “OK. I am not in the office today, so can you call Geoff Jackson to let him know?”

Mr Sloane: “Yep.”  17

Mr Rowe

[51] Mr Rowe played an extremely passive role in the dynamics of the circumstances in which resignation of the Applicants’ employment was proposed to Toll by Mr Banbury and was ultimately negotiated between Mr Sloane and Mr McConville. On the evidence before me I consider Mr Rowe as little more than a witness to events, a description which he applied to himself at some points in the evidence. I also consider his recollection of the events is very uneven.

Mr Banbury and the Applicants

[52] Mr Banbury put the proposal for resignation to the Applicants on 9 October 2014. The Applicants and Mr Banbury gave evidence about what was said and done at the meeting at which the resignations were discussed. There is some conflict in the evidence. The conflict manifests such that the evidence of the Applicants is broadly corroborative of their respective accounts of what was said by Mr Banbury. In certain material respects Mr Banbury disagrees with the Applicants account or cannot clearly recall what was said. There is therefore an issue of whose evidence is to be preferred where the accounts of the discussion differ. I think it more likely that the Applicants’ recollection would be better. Mr Banbury is a union organiser, who no doubt has heavy demands upon his time and numerous responsibilities. I think it likely that at any one time he will be dealing with a diverse range of industrial issues on behalf of the union and its members, collectively and individually. For the Applicants personally the events were highly significant and the situation would have focused their minds acutely. They took action to challenge the termination of their employment soon after the relevant events, and have been engrossed with recollection of them in various ways arising from the applications before the Commission since. I consider it more probable that their recollections are clearer and more accurate. I therefore prefer the evidence of the Applicants concerning the meeting of 9 October 2014 at which their resignations were discussed.

[53] The Applicants’ evidence is that Mr Banbury actively put forward that resignation would be in their best interests. In the circumstances, this is inherently probable. The particular references in this respect were to the Applicants prospects for future employment and that the Police would be called in if they did not resign. I accept this evidence. Mr Banbury’s evidence can be accepted that he understood from his discussion with Mr McConville this would be the case. I find that he conveyed this to the Applicants. While putting the proposal for resignation to the Applicants, I think it inherently probable that Mr Banbury conveyed Mr McConville’s intention that, if they did not resign, they would be dismissed for theft and the police would be notified. Moreover, I find that Mr Banbury stated that if the intentions of Toll were realised, the Applicants may never find, or at least it would be extremely difficult, to find further work in the industry.

[54] The Applicants’ evidence is that Mr Banbury conveyed that Toll’s intention was to sack them.  18 I accept that a statement to this effect was made by Mr Banbury to the Applicants on 9 October 2014. I also accept that the sum total of what Mr Banbury said, as testified to by the Applicants, was that resigning their employment was in their best interests. In my view, all of Mr Banbury’s conduct is consistent with him forming a view that the Applicants should resign their employment with Toll, actively seeking Toll’s agreement and involvement to do so and seeking Toll’s approval by contacting both Mr McConville and Mr Sloane.

[55] The Applicants testified that Mr Banbury made statements that were dismissive of any prospect of success if a case of unfair dismissal were to be prosecuted. I accept this evidence. To the extent that Mr Banbury suggests that he took a neutral attitude to the possibility of an unfair dismissal case in this discussion, I reject it. One only has to consider the extent of the efforts of Mr Banbury to secure Toll’s agreement for the Applicants to resign to see that if Mr Banbury thought the Applicants had some prospect of a successful unfair dismissal application he would hardly have so ardently pursued and forcefully recommended resignation, on his own initiative.

[56] On my construction of Mr Banbury’s evidence he was convinced that CCTV footage was “damning”.  19 Mr Banbury was asked if he recalled saying to the Applicants “the footage alone will burn you”, he stated some hesitancy of recollection but conceded he could have said this. 20 Moreover, Mr Banbury conceded that he stated to the Applicants “you have no hope”. 21

[57] Mr Amiatu and Mr Ioane claim that during the meeting with Mr Banbury on 9 October 2014, when responding to the issue of a potential unfair dismissal claim, Mr Banbury said words to the effect that he would be representing a couple of “baboons”. Mr Banbury denies this.  22

[58] Clearly, for brothers of Samoan heritage such a reference, if made, would be an offensive and gratuitously racist reference to them. If such a remark had been made it would be reprehensible. I will address it specifically in light of the pursuit of the matter by Mr Amiatu and Mr Ioane. Before doing so I note that Mr Amiatu and Mr Ioane showed exceptional civility in their approach to this factual question, particularly in their demeanour and the conduct of their cross examination of Mr Banbury.

[59] I can readily understand that if such a statement were made it would be a vivid recollection for Mr Amiatu and Mr Ioane. On the other hand, Mr Banbury, for reasons considered elsewhere, may not have as clear a recollection of the words used at that meeting. It is possible Mr Banbury used the word “buffoons”. Even though still pejorative, the meaning of this expression is not racially charged.

[60] Mr Banbury did not strike me as a person inclined to be so gratuitously and offensively insulting as to have made such a reference. I am included to think it is possible that Mr Banbury used the word “buffoons”. The evidence makes it clear that Mr Banbury thought the Applicants had brought the situation upon themselves by foolishly helping themselves to the items of uniform work clothing. If Mr Banbury did use the word buffoons it could easily have been misheard by Mr Amiatu and Mr Ioane.

[61] Mr Amiatu and Mr Ioane impressed me as open and honest witnesses and their demeanour was at all times sincere, calm and respectful. I exclude the possibility that they have invented this issue or concocted false evidence of what they believe they heard. However, for the purposes of this decision it is not necessary for me to make a finding that Mr Banbury did or did not use the word “baboons”.

[62] Therefore, while not ignoring the issue raised by Mr Amiatu and Mr Ioane, I make no formal finding of fact on the issue because it is unnecessary to do so in order to arrive at the required conclusions for the purposes of determining the applications.

The Police

[63] Under cross-examination by Mr Ioane, Mr Banbury gave the following evidence:

Mr Ioane: “Ms Alam had a conversation with you in which you told her that you understood from your conversations with Robert McConville that - and these involve several phone calls?

Mr Banbury: “Yes”.

Mr Ioane: “...was that Mr McConville and Mr O’Shannassy were going to terminate the employment and also call the Police?”

Mr Banbury: “That was my understanding, that that’s how it was going.”

Mr Ioane: “Right, and you told the employees that they are going to sack you. Well, you told Mr Mastroianni that “They are going to sack you and call the coppers”. And you said Mr Mastroianni said “If I can resign I’ll walk away and said “I’m going to struggle to get that”?

Mr Banbury: “That’s correct.”  23

[64] I will return to the aspect of the subject of potential police involvement as previously indicated, for reasons which will become clearer. For the moment, I must deal with that part of this evidence by which Mr Banbury, here as well as elsewhere in his evidence, asserts that Mr Mastroianni said that he would resign.  24 Mr Mastroianni contends otherwise. 25 The evidence is oath against oath. I prefer and accept Mr Mastroianni’s evidence.

[65] It is to be noted that that there is no corroboration of Mr Banbury’s evidence concerning Mr Mastroianni stating that he would resign. Mr Banbury’s evidence above is that in response to being told that Toll were going to “sack you and call the coppers”, Mr Mastroianni indicated a preparedness to resign. Mr Banbury without hesitation accepted that what he told Mr Mastroianni was in the context of having had conversations with Mr McConville and Mr O’Shannassy. Even if I were to proceed on the basis that after being told of Toll’s intention to “sack you” and “call in the coppers” Mr Mastoianni indicated preparedness to resign, I doubt that this would mean that Mr Mastroianni voluntarily left his employment.

[66] In my view, there is little comfort for Toll’s jurisdictional objection where an employee is told by their employer that they’re going to be sacked and the Police will be called and the employee is encouraged to resign by their employer through negotiation with the employees’ apparent representative, in the best interests of the employers business.  26

[67] Although I find Mr Rowe’s evidence somewhat confusing, I note that during the course of events following 6 October 2014, he stated that there had been mention of the police being “involved”.  27 It is undoubtedly the case that Mr Banbury maintains he foreshadowed the Police being called to Mr Mastroianni by telephone as well as informing him that Toll intended to “sack” him. I also consider it more probable than not that he conveyed the situation accordingly during the meeting with Mr Amiatu, Mr Ioane and Mr Mastroianni on 9 October 2014 as a reason for which they would resign.

[68] An Outline of Evidence of Mr Banbury was tendered by Toll and states, among other things, as follows:

“Mr Banbury received a telephone call from Mr McConville in which Mr McConville stated that Toll would accept the employees’ resignation. Mr McConville also stated to Mr Banbury that if they didn’t bring all the uniforms back he would still proceed with police action.”  28 (emphasis added)

[69] I now turn to consider the issue of threatened Police involvement in respect of an evidentiary issue raised by Toll. Toll submits and the evidence, in my view, on balance, supports a finding that there was never an express agreement between Toll and Mr Banbury that if the Applicants resigned the Police would not be involved. What is set out above from the outline of Mr Banbury’s evidence may cause some hesitancy in relation to such a finding, in particular the word in bold italics. However, Mr Banbury gave unequivocal evidence that he did not have an explicit agreement that the Police would not be involved if the Applicants resigned. So too did Mr Sloane and Mr McConville. I have decided to accept this evidence. This does not, however, lead to a conclusion that Toll did not express an intention to Mr Banbury and through him to the Applicants, who Toll understood Mr Banbury represented, that they would be dismissed for theft and the Police would be called in. I find to the contrary. The choice was clear to the Applicants, notwithstanding any express undertaking not to involve the Police.

[70] If Mr Banbury gave the Applicants the impression if they were to resign then the Police would not be called in, this proved to be the case as a matter of coincidental fact. The Police were not involved. In this respect, Mr O’Shannassy gave evidence that it was Toll’s routine practice to involve the Police in matters of employee theft.  29 Toll have steadfastly submitted that I should find that the relevant conduct of the Applicants was theft. If there was no agreement that the Police would not be called in if the Applicants resigned, Toll’s subsequent decision not to involve the Police was a highly fortuitous coincidence for the Applicants.

[71] The Applicants all gave evidence that they were greatly distressed to have been accused of theft. Any possibility of Police involvement must have been ominous and threatening. They all readily admitted that they had taken the items of uniform clothing from the box when asked. They considered that the discovery of the box, among what I gather from photographs of the work area to be a voluminous, disorderly, jumble of items large and small, was simply uniform work clothing worn in the performance of their work. Photographs of the “unsorts” area are exhibited and vividly illustrate the circumstances in which the box was discovered.  30 They considered their actions to be innocent. In this respect, the actions of Mr Mastroianni in wearing the jacket on departure and on return to work and those of Mr Amiatu and Mr Ioane wearing the high visibility vests to work the next day confirm their manifest intentions prior to being notified of Toll’s concerns.

[72] The Applicants gave evidence that while there is a formal procedure and paperwork in order to request the issue of uniform work clothing, access to and availability of the items of uniform work clothing is often more informal. I accept this evidence. This evidence includes items of uniform work clothing being left for employees to collect or being distributed without the completion of the prescribed form.

[73] There is no doubt that the Applicants put forward their view of the situation to Mr Banbury when he proposed they resign their employment on 9 October 2014. This included discussion of their rights to make an unfair dismissal application and the potential success of such an application.

[74] The Applicants protestations, on my view of the evidence, were forcefully rejected by Mr Banbury who was acting as an advocate of a proposed course of action which he had invented and which had been negotiated by him, accepted and agreed by Toll, in Toll’s best interests. What Mr Banbury was expressing, with the agreement of Toll, was that they should resign. Mr Banbury communicated the alternatives which were to resign, or be dismissed, never work in the industry again and face Police involvement. While Toll had not expressly agreed with Mr Banbury that should the Applicants resign the Police would not be called in it was made abundantly clear that Toll was intending to “sack” them and “call in the coppers” when the proposal of resignation was put.

[75] In light of all the above I find that the Applicants were forced to resign their employment because of the course of conduct engaged in by Toll described above. No doubt Mr Banbury was involved in that conduct, that however does not exclude the collateral and considered course of action agreed and followed by Toll through Mr Sloane, Mr McConville and Mr Banbury.

Unfair Dismissal?

[76] Having determined that the Applicants were dismissed from their employment within the meaning of the Act I now turn to consider the merits of the applications. When dealing with an application made under s.394 of the Act, the Commission must take into account matters prescribed by s.387 of the Act. The relevant statutory provisions are set out below:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Valid reason

[77] Toll states its position in relation to the validity of the reason for the dismissal of the Applicants succinctly in their Outline of Submissions as follows:

“14. The Respondent had a valid reason for terminating the Applicants’ employment because the Applicants engaged in serious misconduct by stealing the Respondent’s freight.

15. Regulation 1.07 (2) of the Fair Work Regulations 2009 (Regulations) provides:

“…..conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business.

16. Regulation 1.07(3) of the Regulations provides:

“….conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(i) theft; …..”

17. It is clear from the evidence that the Applicants engaged in theft by taking the Respondent’s freight. This is demonstrated by the following:

a. the admissions of the Applicants that they took the freight ;
b. the supporting CCTV footage;
c. The Applicants taking the freight home that night;
d. The Applicants knowing what the process was to order new uniform;
e. The Applicants not approaching management to request uniform or filling out the required form;
f. On 6 and 7 October 2014, the Applicants never inquiring with management as to whether they could take the uniform;
g. The relevant carton had a consignment label on it identifying that the consignment was for Tansel Yildrim;
h. The Applicants’ familiarity with consignment labels as their day to day duties are to manually sort freight using consignment labels.

18. As such, the Respondent submits that, notwithstanding the resignations, it had a valid reason for terminating the Applicants’ employment for serious misconduct.”  31

[78] When considering whether a reason is a valid reason for the purpose of s.387(a) of the Act, the reason must be “sound, defensible or well founded”.  32 A reason which is “capricious, fanciful, spiteful or prejudiced” cannot be a valid reason. 33 The Commission does not “stand in the shoes” of the employer; the Commission must be satisfied that the termination of an employee was for a valid reason. 34 In this respect, the Full Bench of the Commission states that the reason “must be defensible or justifiable on an objective analysis of the relevant facts.” 35

[79] Reasonable minds may differ on whether particular conduct of employees in a specific factual matrix constitutes a sound, well founded and defensible reason for the termination of an employee’s employment. This case presents a line of judgement for me to exercise as a function of determining the application.

The Cardboard Box

[80] Toll submit that the Applicants should have identified the cardboard box in which the items of uniform work clothing were contained as consigned freight, addressed to Tansel Yildirim at Toll’s Altona North depot where the Applicants worked. Toll exhibited a cardboard box with relevant labels attached.  36 The Applicants question whether the box exhibited was the box they accessed.

[81] The Applicant’s evidence, which I accept, is that the box was not shown to them in the course of the events between 7 October 2014 and 9 October 2014. I accept this, however, I will proceed on the basis that the box exhibited was that in which the various items of uniform work clothing were contained. It was therefore an item of freight consigned to Toll.

[82] I accept that the Applicants did not diligently check the box for labels. I consider they more probably than not assumed that it was a Toll box containing miscellaneous items of uniform which was simply in the “unsorts” area, the shambolic nature of which has been already noted, and that taking from it only for their work was the nature of their actions.

[83] Toll submit that the box contained an invoice for the contents. The invoice was not exhibited. The Applicants evidence that they were not shown and have never seen the invoice. It is probable and inherently possible that an invoice was in the box. However, where it was located among the various items in the box cannot be determined. Whether the Applicants would have seen the invoice in the circumstances in which they examined the box cannot be established. I accept the Applicants evidence that they saw no invoice in the course of removing from the box a limited number of items.

[84] Having inspected the labels on the box, it is clear that the label addresses the box and its contents for delivery to the Toll Altona North Depot. The box contained 10 items of uniform work clothing of various sizes and quantities. Mr Yildirim’s name appears below this address. As observed above, if the Applicants glanced at the labels they may have seen that the box was addressed to their depot and failed to consider that the contents were specifically for Mr Yildirim. Although, the assortment of items and sizes may well have suggested that consignment was of varying and differing items for use in the depot, rather than for use by one person.

[85] I have taken Toll’s submissions and my findings above, on the subject of the nature and status of the box in the Toll freight system, into account for the purposes of my decision.

Characterisation of the Applicants’ conduct as theft

[86] On what is before me there was only one reason for the termination of the Applicants’ employment and was materially the same reason in the case of each of the Applicants. As a matter of fact, that was the removal and appropriation, albeit on the evidence, for use at work, of the items of uniform work clothing as described above.

[87] As Toll’s submissions make clear, the facts of the actions of the Applicants were construed as serious and wilful misconduct comprised of an act of theft of Toll property by the Applicants.

[88] Toll submits that the elements required to establish the act of “theft”, which they rely upon, are those prescribed by the s.72 of the Crimes Act 1958 (Vic) (the Crimes Act). Section 72 of the Crimes Act is in the following terms:

“Basic definition of theft

(1) A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

(2) A person who steals is guilty of theft; and “theft” shall be construed accordingly.”

[89] Toll submits, in the circumstances, that the relevant elements are:

1. That the property belonged to Toll;
2. That the Applicants dishonestly took the property; and
3. That there was an intention by the Applicants to permanently deprive Toll of this property.  37

[90] There can be no doubt on what is before me that Mr McConville acted on the basis that each of the Applicants had committed theft. I accept that Mr McConville had made it clear to Mr Banbury that he was intent upon dismissing the Applicants to send a message to the Toll workforce in the time immediately before the termination of the Applicants’ employment. This is confirmed by Mr Sloan’s evidence.  38

[91] It would be essential to a conclusion of a court of law that the elements of the criminal offence of theft be proven beyond any reasonable doubt. Relevantly, the elements of dishonest appropriation and the intention of permanently depriving Toll of the property made up of the items of uniform work clothing would have to be established to the requisite level of proof.

[92] The Commission is not a court of law, let alone a court with jurisdiction to determine criminal charges. What follows must allow for this in different ways. Importantly, as a matter of consistency with legal principles applicable to matters of alleged criminal behaviour the presumption of innocence of the committal of a crime should be respected. It is also appropriate to observe that where it is submitted that a person has committed the crime of theft in a civil proceeding before the Commission certain principles guide the determination of issues of fact arising in that context. For the present purposes it is only necessary to refer generally to the dicta of the High Court of Australia (HCA) in Briginshaw v Briginshaw (1938) 60 CLR 336. Those principles are also considered in Neat Holdings Pty Ltd Karajan Holdings Pty Ltd (1992) 67 ALJR 170. I will be guided accordingly.

[93] In essence, in order to conclude that the Applicants committed theft, the evidence must be of sufficient quality to rise to the level of the seriousness of the allegation in respect of the elements of the crime of theft.

[94] I am not satisfied on the evidence before me that it is established that the actions of the Applicants in appropriating the items of uniform work clothing are aptly described as dishonest. The evidence weighs heavily against a conclusion that the motives and intentions of the Applicants were dishonest or dishonourable. The meaning of the word dishonest is; “not honest”.  39 The meaning of the word honest is; “honourable in principles, intentions and actions”. 40 In my view, the intentions and actions of the Applicants were misguided but not dishonest. I am not satisfied that the Applicants intended to permanently deprive Toll of the uniform work clothing. On the contrary, in my view their intentions were manifest, insofar as they used the property for their work for Toll in full view of Tolls’ personnel and its surveillance system. When challenged about their actions they were frank, open and sincere when responding they had taken the relevant items for use at work and that they believed they had acquired the items of uniform work clothing innocently. In this regard, I consider they were at all times truthful and frank.

[95] Toll submit that Mr Amiatu is still in possession of an item of uniform work clothing, which demonstrates dishonesty, given that he no longer works for Toll.  41 I think in the circumstances, are that Mr Amiatu has simply failed to return the item because of the events which followed the 6 October 2014, including leaving the premises with escort immediately, rather than an intention on his part to permanently deprive Toll of the item. As on observation, notwithstanding Toll’s submissions in this particular issue, it does not appear that the Police have been involved in this aspect of the matter.

[96] Having regard to all the evidence and material before me, on the civil burden of proof, I am unable to be satisfied that the actions of the Applicants on 6 October 2014 may be soundly characterised as theft. I am not convinced that the evidence is of sufficient quality to establish a dishonest intention on the part of the applicants, nor is the evidence of sufficient quality to enable me to be satisfied that the applicants intended to permanently deprive Toll of the items of uniform work clothing. Nor do I consider that theft, as a reason for the dismissal of the Applicants, to be a sound, defensible or well founded reason on an objective analysis of the evidence before me.

[97] While Toll remained steadfast in its determination that the Applicants were guilty of theft during the hearing of the applications, I consider that the more appropriate finding on which to proceed is that the Applicants wrongly appropriated or misappropriated items of Toll uniform work clothing, to be worn at work for the purpose of performing their work, at the Altona Road depot, contrary to proper procedure. They did so without following the standard authorisation procedure for the issuance of items of uniform work clothing, wrongly.

[98] While Toll submits that theft is the valid reason for the dismissal of the Applicants, they also submit in the alternative that if the conduct is not considered by the Commission to be such, nevertheless, the appropriation of the uniform work clothing without following proper procedure or obtaining permission should be considered a valid reason for dismissal of the Applicants. I do not accept this submission. In my objective judgement, in all the circumstances of the case, the conduct of the Applicants lacked appropriate formality of procedure because they genuinely believed that the items of uniform work clothing were available to them for use in the course of their employment. I consider their conduct warranted a warning or reprimand, rather than the sanction of dismissal.

[99] I do not accept the reason of this appropriation of the uniform work clothing without following proper procedure or obtaining permission to be a sound, defensible or well founded reason on an objective analysis of the evidence before me. I have accepted the Applicant’s evidence that the formal procedure for access to and distribution of items of uniform work clothing has not been uniformly applied in all cases.

[100] However, in due course I will also consider whether the termination of the Applicants’ employment was harsh, unjust or unreasonable if in fact failure to follow the procedure and the misappropriation as a reason for the dismissal of the Applicants was considered to be a valid reason. Accordingly, I have addressed subparagraphs (b) to (h) of s.387 of the Act.

[101] The actions of the Applicants in appropriating or misappropriating the items of uniform work clothing is a matter relevant to my determination of whether the dismissals of the Applicants’ was for a valid reason and whether the dismissals were harsh, unjust or unreasonable. I do not think the reason was valid because on the evidence before me I see no intention to commit theft on the part of the Applicants, but rather to use the uniform work clothing in the course of their duties. The failure to follow proper procedure in these circumstances could reasonably give rise to disciplinary action, but in my judgement, not summary dismissal.

Notice

[102] I find that the Applicants were notified, albeit indirectly through Mr Banbury that Mr McConville was going to sack them for theft and “call in the coppers” or “involve” the Police. That course of action was only aborted by Mr Sloan’s persuasion of Mr McConville to have the Applicants resign as an alternative.

[103] The period of notice was very short, I will return to this aspect of the notification when considering other relevant matters pursuant to s.387(h).

Opportunity to respond

[104] The Applicants were provided with an opportunity to respond to allegations of theft as described above. As with the circumstances of the notification of the reason for the dismissal of the Applicants I will return to consider the circumstances in which the Applicants responded to the notification when considering other relevant matters under s.387(h).

Refusal of support person

[105] In order for there to be an unreasonable refusal for an employee to have a support person present it would be necessary for an employee to make a request which was refused. Those circumstances do not apply in this case and therefore there was no relevant refusal.

Warning

[106] The reason for the dismissal of the Applicants was for a reason of conduct rather than unsatisfactory performance of their duties. On what is before me, there was no warning in any event concerning unsatisfactory performance on the part of any of the Applicants during the course of their employment. Nor was there any warning for misconduct.

Size of the employer

[107] Toll is a large employer. On what is before me I see the size of Toll having had no impact on the procedures followed to effect the dismissals of the Applicants, beyond the procedure followed as outlined above, including the interaction between various persons involved in the response to the incident on 6 October 2014.

Human resources

[108] There was no absence of HR specialist resources or expertise in the circumstances which lead to the dismissal of the Applicants. Mr Sloane may be relevantly categorised accordingly.

Other relevant matters

[109] I consider the substance of service and the length of service of the Applicants to be relevant. I also consider the effect on the personal economic circumstances of the Applicants to be relevant. It seems there was an industrial instrument which applied to the Applicants which I consider is relevant.

Consideration - harsh, unjust or unreasonable?

[110] I have reached the conclusion that the termination of the employment of the Applicants in all the circumstances was harsh. For reasons stated above I cannot be satisfied, on the balance of probabilities, that the Applicants’ conduct was theft, as apprehended by Toll.

[111] In the case of Byrne v Australian Airlines (1995) 185 CLR 410 (Byrne), the High Court of Australia considered the meaning of the words harsh, unjust and unreasonable in relation to the dismissal of employees from their employment. In Byrne, McHugh and Gummow JJ stated:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”  42

[112] A dismissal may be judged to be harsh, unjust or unreasonable notwithstanding that the employer may have a valid reason. The relevant considerations were discussed at length by the Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191. The position is stated categorically at paragraph 41 thereof as follows:

“Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button ; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited ; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] . That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.”  43

[113] I consider the actions of the Applicants were inappropriate because they should have been more diligent in establishing the provenance and circumstances of the contents of the cardboard box and referred the matter for clarification and, if necessary, obtain permission from their supervisor to use the items they removed for their work.

[114] In my view, the proper characterisation of the wrong doing of the Applicants was a failure to follow the prescribed procedure for acquiring uniform work clothing. Such a failure will have to be considered according to the particular factual matrix in which it occurred. For example, if a supervisor left a box of gloves for general distribution and the procedure prescribed involved the completion of a form, which was not completed by an individual employee taking a pair of the gloves, would be a technical and minor breach of procedure. Whereas in this case the failure was not so insignificant but it was not however, in my view, theft or serious and wilful misconduct.

[115] In the circumstances, even if the actions of the Applicants is properly construed as a valid reason for dismissal the sanction of dismissal was out of proportion to the offence as I objectively judge it. A warning would have been more appropriate.

[116] The Applicants’ employment was covered by the Toll Ipec - (Altona North) Transport Workers Agreement 2006 (the Agreement), which according to Mr O’Shannassy’s evidence, was relevant to the incident of 6 October 2014.  44 The relevant provision of the Agreement are as follows:

“12.0 Counseling [sic] Procedure

(a) An employee whose behaviour or performance is considered unacceptable or requiring improvement shall be counseled [sic] as to the Company’s expectations.
Where such counseling [sic] is not successful, formal warnings may be necessary. Formal warnings will be issued by a senior Company representative and shall be recorded. The employee concerned may choose to have a delegate or another witness present. In issuing a formal warning, the Company representative will advise the employee what action is required to rectify the situation.
Prior to any dismissal, an employee will be given a final warning, in writing, and advised of the consequences of the employee not rectifying the situation. This clause does not apply to gross misconduct warranting summary dismissal.

(b) At the discretion of the Company, an employee involved in misconduct (other than Acts of Dishonesty) may be stood aside on normal pay pending an investigation.

(c) Letters of warning shall remain on an employee’s file for 12 months.”

[117] Mr O’Shannassy’s evidence correctly points out that the counselling procedure does not apply to gross misconduct warranting summary dismissal. Having objectively considered all of the evidence, I am unable to be satisfied that the relevant conduct of the Applicants can properly be characterised as “gross misconduct warranting summary dismissal”, as provided for in the Agreement.

[118] In light of this finding, the counselling procedure of the Agreement indicates a different outcome as a more appropriate feature of the employment relationship of the Applicants with Toll. To the extent that the terms of the Agreement feature as an incident of the employment of the Applicants, I consider the terms of the Agreement would be indicative that dismissal of the applicants, for the relevant conduct, was disproportionate and therefore harsh.

[119] Although, I should say, even in the absence of any such documented agreed policy or procedure I would independently come to the same objective conclusion that dismissal was out of proportion to the wrongdoing of the Applicants.

[120] In my view, not only was the sanction of summary dismissal for alleged theft comprising gross misconduct out of proportion to the offence or wrongdoing of the Applicants, it was also catastrophic for the personal circumstances of Mr Mastroianni and Mr Ioane. Mr Amiatu was fortunate to find work not long after his dismissal at comparable remuneration.  45 Mr Mastroianni outlined the economic and financial effect upon him because of the dismissal:

“It has been a really difficult period.  I was issued with an eviction notice, because I fell behind with my mortgage repayments.  I borrowed some money off my parents in order to make up the arrears and I've subsequently been able to access superannuation funds, as well, to make up the balance of the arrears.  I wasn't able to get the total amount from my parents.”  46

[121] Having found that the dismissals were in each case harsh because they were disproportionate to the nature of the relevant conduct of the Applicants, and in the case of Mr Mastroianni and Mr Ioane also because of the effects upon their personal economic circumstances, I now turn to consider what, if any, remedy should be provided.

[122] While I have made positive findings in relation to notification of the reason for the termination of the Applicants’ employment, I consider the overall situation in which their employment was terminated did not afford them a fair go when looked at all round.

[123] I think it was also harsh to impose the sanction of termination of employment, having regard to the fact that this was the only issue of misconduct in the history of the Applicants’ employment during two or more years of satisfactory employment.

Reinstatement

[124] Toll submit that in the event that the Commission was to find that the Applicants were dismissed within the meaning of the Act and that the termination of the Applicant’s employment was harsh, unjust or unreasonable, reinstatement would be an inappropriate remedy. Toll’s Respondent’s Outline of Submission contains the following:

“28. The Respondent submits that the applications should be dismissed.

29. However, if the Tribunal is of the mind that the terminations were harsh, unjust and/or unreasonable the Respondent submits that reinstatement or re-employment is not appropriate as there has been a breakdown in trust and confidence due to the Applicants’ serious misconduct.”  47

[125] I am not convinced this submission should be accepted. The issue of trust and confidence when considering whether reinstatement is an appropriate remedy was considered by Wilcox CJ, Marshall and North JJ in Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins).  48 Their Honours held:

“Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.”  49

[126] I note that this passage was recently cited by this Commission when considering the issue of reinstatement in an unfair dismissal case.  50

[127] On the evidence before me, the Applicants were transparent, open and honest about the circumstances in which they removed the uniform work clothing from the cardboard box. On my view of the evidence, it is more probable than not that they would have been well aware that the depot and the area in which they worked was under constant CCTV surveillance. They all openly wore the clothing while at work. They all expressed surprise when questioned about it and readily conceded that they did take it from the box. They each denied stealing the clothing immediately, without prevarication. There was no attempt by any of the Applicants to conceal their actions or to be evasive about what they had done. I consider they would all readily accept that they should not acquire Toll uniform work clothing without following the prescribed procedures and comply with such a warning if reinstated. There is no other evidence which would support a conclusion that the Applicants have been in any way untrustworthy throughout their employment. I think that the circumstances of the events the subject of the applications and any such warning would combine to allow sufficient confidence that the Applicants would comply with the relevant procedure.

[128] Moreover, I consider the length of good and otherwise satisfactory service of the Applicants is a relevant consideration when determining if Toll may have an appropriate level of confidence in the future conduct of the Applicants if they were to be reinstated. Other than the submission that reinstatement would be inappropriate for reasons of trust and confidence, there is no other relevant submission by Toll which supports why reinstatement of the Applicants to the positions in which they were employed at the time of dismissal would be inappropriate. For the reasons above, I have reached the conclusion that it would not be inappropriate to reinstate the Applicants to the positions in which they were employed at the time they were dismissed. On the contrary, in my considered judgement I consider reinstatement accordingly would be appropriate.

Lost Remuneration

[129] I now turn to consider whether to make an order for Toll to pay an amount of lost remuneration to the Applicants. In my judgement an order of this kind is appropriate in all the circumstances in the case of Mr Ioane and Mr Mastroianni. In arriving at this conclusion, I am mindful that s.391(4) provides for consideration of any remuneration earned by the Applicants from employment or other work between their dismissals and the date or effect of the orders of reinstatement I have decided to make. Moreover, I note that the amount which may be ordered pursuant to s.391(3) of the Act is an amount to be decided by the Commission. There is therefore a discretion to be exercised both as to the making of an order under s.391(3) and the amount of lost remuneration which Toll may be ordered to pay to the Applicants.  51 In the latter respect, I consider it would be appropriate to take into account the relevant conduct of the Applicants when considering the order to be made in relation to the amount of any lost remuneration to be paid to the Applicants by Toll.

[130] On the issue of an order for lost remuneration, Toll submitted:

“If the Commissioner was minded to order reinstatement, that we would say it would not be appropriate to order back pay, given the conduct or misconduct that has occurred”.  52

[131] I do not consider that the conduct of the Applicants should cause the Commission to make no order at all for the payment of remuneration lost, in addition to the order for reinstatement of the Applicants and an order for continuity of employment.

[132] At the conclusion of the hearing of this matter it was clear that Mr Mastroianni and Mr Ioane had lost substantial remuneration as a result of their unfair dismissal and had acted reasonably in seeking other employment to mitigate their losses.

[133] I intend to make a deduction from the amount of remuneration lost to be ordered in the case of Mr Ioane and Mr Mastroianni. I will achieve this by consideration the conduct of the Applicants, as I have found it, as a basis for doing so. The result of my decision not to award the whole of the remuneration lost allows some flexibility in the making of the appropriate order as a matter of discretion.

[134] Before proceeding further, I note that Mr Amiatu’s circumstances at the time of the hearing of the matter concluded were significantly different to those of Mr Mastroianni and Mr Ioane. As observed previously, Mr Amiatu found work four weeks after the dismissal. In those circumstances, I do not intend to make an order for payment of lost remuneration to Mr Amiatu.

[135] At the time of the hearing of the applications was concluded Mr Mastroianni and Mr Ioane were each unemployed. The Commission issued Directions dated 16 March 2015 which directed Toll Ipec to file and serve materials confirming the weekly earnings of the Applicants. On 27 March 2015,Toll Ipec complied with these Directions. I intend to make an order that Toll pay to Mr Mastroianni and Mr Ioane an amount equal to 75 per cent of the amount they would have earned but for the termination of their employment between the date of their termination of their employment and 12 March 2015, which is the last date of the hearing, less any amount of income earned by Mr Mastroianni and Mr Ioane between the date of the termination of their employment and 12 March 2015. For the latter purpose, Mr Mastroianni and Mr Ioane will be ordered to file with the Commission statutory declarations of all amounts of income earned by them between the date of the termination of their employment and 12 March 2015. The relevant income does not include social security payments or amounts of savings or accumulated superannuation amounts.

[136] I will give consideration to further orders for lost remuneration for Mr Mastroianni and Mr Ioane from 13 March 2015, being the day following the last date of hearing, and the effective date of reinstatement, taking into account their circumstances since that date, in due course.

Continuity of Employment

[137] I consider it appropriate to make an order to maintain the continuity of the Applicants’ employment in each case and an order that the service of the Applicants in each case be continuous between the date their employment commenced and the effective date of the order of reinstatement I will make. There is nothing put to me which would convince me that such orders are inappropriate in all the circumstances of the case and I consider that to do so is consistent with the statutory directions provided by s.577(a) and s.578(b) of the Act.

COMMISSIONER

Appearances:

Mr S Amiatu on his own behalf

Mr F Ioane on his own behalf

Mr M Mastroianni on his own behalf

Ms K Alam of Toll Ipec Pty Ltd for the Respondent

Hearing details:

2015.

Melbourne.

January 27, 28, February 6, March 11, 12.

Final written submissions:

29 April 2015.

 1   O’Meara v Stanley Works Pty Ltd [2006] AIRC 496, [23]

 2   Kylie Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279, [18] - [19]

 3   Kylie Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279, [29]

 4   Exhibit MO1, Statement of Matthew O’Shannassy, [5]

 5   Exhbit RM1, Statement of Robert McConville, [7]-[10]

 6   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 28 January 2015) PN1016 - PN1026. While there is an issue concerning whether the box was closed I accept the evidence of Mr Ioane that the box was sufficiently open to reveal the apparent presence of the contents as Toll uniform work clothing.

 7   Exhibit MO 1, Statement of Matthew O’Shannessy, [3]

 8   Exhibit SA1

 9   Exhibit MO1, Statement of Matthew O’Shannassy, [5]; Exhibit RM1, Statement of Robert McConville, [3]

 10   Exhibit DS1, Statement of Damian James Sloan, [5]

 11   Exhibit DS1, Statement of Damian James Sloan, [7]

 12   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 12 March 2015) PN2991 - PN2995

 13   Exhibit PB1, Outline of Evidence - Peter Banbury, [6]; Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 6 February 2015) PN359 - PN361

 14   Exhibit MO1, Statement of Matthew O’Shannessy, [19]

 15   Exhibit RM1, Statement of Robert McConville, [10]

 16   See Fingal Glen, Paragraph [15] above

 17   Exhibit DS1, Statement of Damien James Sloan, [5]

 18   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 27 January 2015) PN693 - PN696; Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 28 January 2015) PN1632, PN1640

 19   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 6 February 2015) PN347 - PN349

 20   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 6 February 2015) PN396 - PN371

 21   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 6 February 2015) PN342, PN610 - PN611, PN672

 22   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 6 February 2015) PN367 - PN370

 23   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 6 February 2015) PN359 - PN361

 24   Exhibit PB1, [7]

 25   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 6 February 2015) PN426

 26   Exhibit DS1, Statement of Damian James Sloan, [5]

 27   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 28 January 2015) PN2303 - 2307

 28   Exhibit PB1, Outline of Evidence - Peter Banbury, [11]

 29   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 6 February 2015) PN1238 - PN1248

 30   Exhibit SA1, Witness Statement of Mr Amiatu

 31   Respondent’s Outline of Submissions filed 23 December 2015

 32   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

 33   Ibid, 373

 34   Miller v University of New South Wales (2003) 132 FCR 147, [13]; Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 35   Boris Jurisic v ABB Australia Pty Ltd [2014] FWCFB 5835, [73]; citing Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373; Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370

 36   Exhibit R1

 37   Respondent’s Additional Submissions filed 27 March 2015, [6] - [7]

 38   Exhibit DS 1, Statement of Damian James Sloan, [5]

 39   The Macquarie Concise Dictionary (The Macquarie Library Pty Ltd, 2nd ed, 1988), 268

 40   Ibid, 460

 41   Respondent’s Additional Submissions filed 27 March 2015; Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 28 January 2015) PN1137 - PN1145

 42   Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465 (McHugh and Gummow JJ)

 43   B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191, [41]

 44   Exhibit MO1, MO2, M03

 45   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 12 March 2015) PN2762 - PN2782

 46   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 12 March 2015) PN2522 - PN2523

 47   Respondent’s Outline of Submissions filed 23 December 2015

 48   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186

 49  Ibid, 191

 50   Harrington v Coates Hire Operations Pty Limited [2015] FWC 2598, [130]

 51   B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWC 9293, [18] - [20]

 52   Transcript of Proceedings, Sione Amiatu v Toll Ipec Pty Ltd; Frank Ioane v Toll Ipec Pty Ltd; Marcello Mastroianni v Toll Ipec Pty Ltd (Fair Work Commission, Commissioner Lewin, 12 March 2015) PN3232

Printed by authority of the Commonwealth Government Printer

<Price code G, PR568228>