Mr Robert Johnson v Northwest Supermarkets Pty Ltd T/A Castlemaine IGA [2017] FWCFB 4453.  (C2017/3304). ROSS, J, DEPUTY PRESIDENT COLMAN, DP, CIRKOVIC, C. 28 AUGUST 2017.

 

Mr Robert Johnson’s employment with Northwest Supermarkets t/a Castlemaine IGA was terminated summarily on 7 February 2017. He was found to have taken three items of produce from the Castlemaine IGA where he worked.

 

The original unfair dismissal application was heard by Deputy President Hamilton, who found that, although Mr Johnson’s action was authorised by a supervisor, it breached company policy and constituted a valid reason for his dismissal. The Deputy President dismissed Mr Johnson’s application.

 

Mr Johnson left the store with three products for which he had not paid. The products were a ham bone, a 100g sample of smoked salmon, and a 100g sample of prosciutto. The samples and the ham bone were wrapped and signed by Mr Johnson’s manager, Ms Royal. Mr Blake, a director of the company, stopped Mr Johnson as he was leaving work, searched his bag and discovered the items. Mr Johnson said that his supervisor had authorised him, and others, to take certain items (samples and offcuts) without payment. Mr Blake’s evidence was that the items were ‘saleable items’ and there were clear policies against theft and removing stock without payment. Mr Johnson signed the relevant policy when he commenced employment in 2008. The police were called to the store but no charges were laid.

 

Mr Johnson applied for permission to appeal, which was granted – as in the FB’s view, the DP’s decision did not consider the proportionality of summary dismissal (ie did the punishment fit the crime?).

 

The FB agreed that Mr Johnson acted in breach of the Respondent’s policy and that this constitutes a valid reason for termination of his employment. While there was a valid reason for the termination of Mr Johnson’s employment they noted that there were a number of mitigating circumstances.

 

The FB ultimately found that the decision to terminate Mr Johnson’s employment was harsh considering:

 

  • Mr Johnson had been authorised to take the items.
  • Eight other employees were also engaged in the same practice.

 

In terms of remedyReinstatement is not sought in this case and in those circumstances, we are satisfied that it would be inappropriate to order reinstatement. The FB then referred the matter Commissioner Cirkovic for determination of money to be paid.

 

Commentary

 

I am a more than a little perplexed by this decision. To my mind, the only person who was in breach of the policy was the supervisor who provided written permission to the employees to take the goods.

 

We also don’t know what happened to the other eight employees.

 

My advice in this matter would have to put the supervisor on a final warning and re-educate all employees on the policy.

 

I suppose, I can empathise with the Director, who was watching his profits walk out the door?

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.