FWA 6918
Fair Work Act 2009
Plenty Valley Services Association Inc
MELBOURNE, 17 AUGUST 2012
Termination of employment - applicant unfairly dismissed - no remedy ordered.
 Mr Cini filed an application for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act) on 20 April 2012 in relation to his dismissal from his employment by Plenty Valley Services Association Inc (the respondent) on 10 April 2012.
 This matter was listed for arbitration on 8, 9 and 10 August 2012. Mr Cini appeared on his own behalf and Mr Harrington of counsel was given permission to appear for the respondent.
 At the conclusion of the hearing on 10 August 2012 I made an ex tempore decision. What follows is a revised and edited version of that decision.
 Mr Cini commenced employment with the respondent on 28 March 2010. As required by s. 396, I must decide several matters before considering the merits of the application.
 Under s.396(a) I have to decide whether the application was made within the period required under s. 394(2), and I decide that it was. The respondent concedes, and I so find, that the applicant is a person protected from unfair dismissal for the purposes of section 382, and that is a matter I must find under s.396(b). The respondent admits that it is not a small business employer and therefore the Small Business Fair Dismissal Code does not apply, and that is a matter I am required to find under s.396(c). It was never contended that the dismissal was a case of genuine redundancy and therefore I find that s.396(d) is not relevant to the proceedings.
 For the purposes of s.385(a), I find that the applicant was dismissed from his employment. Sections 385(c) and (d) deal with the same matters as are dealt with in ss.396(c) and (d), and I have just addressed those matters. The only remaining issue is s.385(b) which requires that I have to be satisfied that the dismissal was harsh, unjust or unreasonable. That requires me to then turn to s.387 of the Act which sets out the criteria for considering whether or not a dismissal was harsh, unjust or unreasonable.
 Section 387 requires that I take into account each of the matters identified in paragraphs (a) to (h) of s.387. The case law on this issue is best expressed by a decision of the former Australian Industrial Relations Commission in ALH Group Pty Ltd trading as Royal Exchange Hotel v Mulhall 1. The Full Bench, whilst it was dealing with different legislation, deals with the same concept. It was dealing at that time with s.170CG of the then Workplace Relations Act 1996 and the Full Bench said:
“Each of the paragraphs (a) to (d) of s.170CG(3) requires the commission to have regard to "whether" a circumstance existed. Whether it existed must then be taken into account, considered and given due weight as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. A consequence of this construction of section 170CG(3) is that the commission is obliged to make a finding in respect of each of the circumstances specified in subsections 170CG(3)(a) to (d) insofar as each of these paragraphs is relevant to the factual circumstances of a particular case.” 2
 The principles decided in that matter apply equally to the way in which the Tribunal approaches the operation of s.387. I have to determine whether each of the criteria in s.387 exist and, if they exist, then I must take them into account, consider them and give due weight to them as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.
 Before I turn to the criteria, the matter of the termination and the reason for the termination was set out in the termination letter 3. The reason for the termination was as follows:
“The reason for the termination of your employment is that your actions in relation to handling cash within the village constitutes a breach of clause 4.2 of your employment contract wherein you agreed to honestly and faithfully serve the association and use your best endeavours to promote its interest and welfare.”
 That reason was contained in the letter sent by Kevin Tait, Chairman Committee of Management, to the applicant on 10 April 2012.
 The employment contract which was relevant was also in evidence Clause 4.2 of that contract, which is the clause relied upon in the letter of termination, provided as follows:
“4.2 By accepting employment with the Association, you agree honestly and faithfully to serve the association and use your best endeavours to promote its interest and welfare. Unless you are absent on leave, as provided for in this letter, you agree to devote the whole of your time and attention during your working hours to the business of the association.” 4
 The combination of the letter of termination and clause 4.2 makes it clear that the effect of the reason for termination was a breach of the requirement that -
“You agree honestly faithfully to serve the Association and use your best endeavours to promote its interests and welfare.”
 I also note that clause 4.1 of the contract directs the applicant, as the Village Manager, to perform duties in the Duty Statement which was Schedule 1 to the contract. The duties identified in Schedule 1 to the contract include a mix of financial and personal relationship duties. The financial duties under the heading Administration are quite detailed and the personal relationship duties are best expressed under a general duty which is set out in the Duty Statement as -
“To ensure that the Village maintains an atmosphere which fosters enjoyment of the facilities and quiet enjoyment of their properties by the Village residents.”
 The specific reasons for dismissal related to cash handling within the Village. The evidence in this matter, and the very frank and honest evidence of the applicant, discloses cash handling within the Village which was not in conformity to the specific financial duties placed upon the applicant under his contract. Attached to and forming part of the Duty Statement of the Village Manager are a number of financial obligations, and some of those are as follows:
 Having regard to the requirements forming part of the Duty Statement of the Village Manager and having regard to the evidence of the Applicant, I find that the reason for dismissal was a valid reason. "Valid reason" is not a defined term within the Act but reliance is often placed upon a decision of Northrop J in Selvachandran v Peteron Plastics Pty Ltd where Northrop J said:
“The adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason.” 5
 In approaching whether or not a reason is valid, a Full Bench of the former Industrial Relations Commission in Roade v Burwood Mitsubishi said:
“The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 6
 Having regard to that case law, I have no hesitation in finding that the reason for dismissal in this matter was valid. It certainly was not a capricious, fanciful, spiteful or prejudiced reason.
 I must take into account whether the person was notified of the reason. I find that the Applicant was notified of the reason for termination at the meeting on 8 March.
 Section 387(c) requires that I take into account whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. I find that the Applicant was given an opportunity to respond to any reason related to his conduct at the meeting on 8 March.
 I must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal. I find that there was no unreasonable refusal by the Association to allow the Applicant to have a support person present at any of the discussions and including the meeting on 8 March 2012.
 I am required to take into account if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal. The Respondent conceded in this matter that this criteria is not relevant and I agree with that concession.
Sections 387(f) and (g)
 Fair Work Australia must take into account, both under s.387(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 under s.387(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. I consider these two matters together. Both the size of the Association and its lack of dedicated human resource management specialists or expertise did in my view have an impact on the procedures followed in effecting the dismissal of the applicant.
 I accept the evidence of Mr Williamson (a member of the Committee of Management) in his description of the role Ms Mathewson (General Manager, Retirement Living at Stockland) played at the Committee meeting on 17 February. Mr Williamson's evidence was that Kate Mathewson ran the meeting and that Kate Mathewson presented the case to the Committee for the dismissal of Mr Cini. Mr Williamson's evidence also was that the Committee did not agree to the proposition advanced by Kate Mathewson for the dismissal of Mr Cini. Mr Williamson then gave evidence that Kate Mathewson suggested that three people do the investigation. My recollection of the way in which Mr Moore (a member of the Committee of Management appointment by Stockland and Village Coordination Manager, Retirement Living at Stockland) described this was that Kate Mathewson purely provided a supportive role at the meeting on 17 February. Ms Mathewson gave evidence in this matter and, in answer to a question from the Tribunal, couldn't recall what view she expressed to the meeting but then she immediately went on to say that she could “very clearly recall” saying that they would need to give Mr Cini an opportunity to respond.
 There is an obvious contradiction between the evidence of Mr Williamson and the evidence of Mr Moore and Ms Mathewson. I resolve that obvious contradiction by stating I clearly prefer Mr Williamson's evidence. I do not accept that Ms Mathewson or Mr Moore were wholly truthful. I note that the Committee resolved to appoint Mr Tait, Ms Mathewson and Mr Moore to investigate matters concerning Mr Cini. The meeting on 8 March was called by Mr Tait and the contents of his letter to Mr Cini are important and are stated as follows:
“Invitation to Attend a Disciplinary Meeting Regarding an Allegation of Misconduct:
I'm writing to request your attendance at a disciplinary meeting at 1 pm on Thursday, 8 March 2012 at level 7, 452 Flinders Street, Melbourne. The purpose of this meeting will be to clarify an allegation that there have been inadequate credential controls in place for the handling of cash receipts and payments and for verifying certain payments. We understand that based on your most recent medical advice that you are fit to work three days per week. It is on this basis that we would like you to attend this meeting which will provide you with an opportunity to respond to this allegation. This meeting will also be attended by Kate Mathewson, General Manager Stockland Retirement Living, and David Moore, Stockland Village Coordination Manager. You have the right to be accompanied by a person of your choosing. This allegation, if substantiated, breaches your employment contract with the Plenty Valley Services Association Incorporation and is deemed extremely serious. You remain suspended on full pay until we complete our investigation of this matter, which includes providing you with the opportunity to respond to this allegation on Thursday. I would also like to confirm that until directed otherwise, you must not enter the Plenty Valley Retirement Village or have contact with Plenty Valley employees or residents.
Chairman Committee of Management, on behalf of the Plenty Valley Services Association Inc.” 7
 This letter does not contain a copy of the Committee's resolution to appoint the three persons to undertake an investigation nor does it contain any reference to the role of Ms Mathewson and Mr Moore in conducting the investigation. The witness statements of Ms Mathewson, Mr Moore and Mr Tait do not throw any further light on whether the Applicant was aware of the committee decision made on 17 February and the role of Ms Mathewson and Mr Moore.
 I draw the conclusion that the resolution advanced by Ms Mathewson at the Committee meeting on 17 February was to put Ms Mathewson in a position of significant influence in relation to the procedures used by the association to dismiss the applicant.
 A particular complaint of Mr Cini was that he was never brought before the Committee to respond to the allegations against him or to speak in his own defence. The resolution advanced by Ms Mathewson at the meeting on 17 February effectively ensured that Mr Cini would not be addressing the full Committee of Management but only addressing the three appointed persons: Ms Mathewson, Mr Moore and Mr Tait.
 As Mr Williamson described it, Ms Mathewson presented the case to the committee for the dismissal of Mr Cini and then after that was not supported did Ms Mathewson advance the proposition that three people investigate the matter. Having promoted Mr Cini's dismissal, it would appear that Ms Mathewson may not have been an impartial participant in the group of three and her involvement in procedures thereafter may have tainted the procedures. It is also relevant to note that Ms Mathewson was Mr Moore's effective boss or senior officer and this would also potentially impact on the possibility that Mr Moore would not be an impartial participant in that investigation.
 I found Mr Cini to be an honest witness. Mr Cini was completely open to the tribunal in admitting that he was using cash to fund some work and activities around the village and in giving gifts to residents. Mr Harrington paints a grim picture of Mr Cini, with the clear imputation that because every last cent has not been properly accounted for, that some of the money went to the personal benefit of Mr Cini or his family.
 I have no hesitation in rejecting this picture of Mr Cini.
 As Mr Cini stated whilst under oath:
“Everything I did went back into the village” and “I only did what I felt was right for the community”.
 In his final submissions Mr Cini asserted:
“I always acted in good faith and for the residents. “
 I accept the evidence of Mr Cini. In his final submission Mr Cini contended:
“If I had been asked to change my method of management, I would have done so.”
 What is clear from the evidence is that the procedures put in place by the Committee of Management on 17 February effectively precluded Mr Cini being retained in his job and with a requirement to change his methods.
 I also consider it relevant to have regard to the outcomes which flowed from Mr Cini's failure to accurately account for the cash under his control. One of the gifts which was identified by Mr Cini in his evidence was to provide the residents in the apartments with decent towels and three-ply toilet paper when the budget had supplied them with poor quality towel and two-ply toilet paper. If Mr Cini was, as Mr Harrington described him, a feudal lord dispensing gifts, he would at least appear to fall into the category of a well meaning and well caring feudal lord.
 Having considered each of the criteria in s.387 - and they are each considered separately - I find in cumulation that Mr Cini was unfairly dismissed.
 I turn to the issue of remedy.
 Section 390 of the Act is in the following terms:
(a) Fair Work Australia is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and
(b) the person has been unfairly dismissed.
(2) Fair Work Australia may make the order only if the person has made an application under section 394.
(3) Fair Work Australia must not order the payment of compensation to the person unless:
(a) Fair Work Australia is satisfied that reinstatement of the person is inappropriate; and
(b) Fair Work Australia considers an order for payment of compensation is appropriate in all the circumstances of the case.”
 Whether or not a remedy is granted is a discretion given to the Tribunal. In the present matter I do not intend to exercise the discretion to award any remedy.
 Without going through those issues which would have to be considered under s.391 and s.392, I have used some of the criteria in s.391 to at least illustrate why I will not exercise my discretion in this matter.
 The first is a comment I would make in relation to Mr Cini; that is, good intentions are not enough.
 Whilst I accept the evidence of Mr Cini that he was always acting in good faith and for the residents and that he only did what I felt was right for the community, it is very clear that the use of a cash account in a form which was not properly recorded or accounted for means that in some respects, if not all respects, Mr Cini was the master of his own destiny. Even if procedural fairness had been properly followed - ie, if the Committee of Management had embarked upon the investigation as a whole or had appointed a Committee that did not comprise Mr Moore and Ms Mathewson - it may very well have been that at the end of the exercise notice would have been given to Mr Cini and he might have finished up in any event.
 I clearly take into account the fact that whilst Mr Cini was suspended, that was done on full pay. I clearly and strongly have regard to the fact that the employer, having decided to terminate the employee, did provide five weeks' pay in lieu of notice. I clearly take into account the admissions by Mr Cini, and they are admissions that relate to the way in which he conducted the cash component of the operations of his job. I accept that Mr Cini did not profit in any form from his incorrect or failed processes in handling cash rather than recording it through the books properly.
 I am also conscious that the very nature of the Committee of Management of the Association is such that it can change on a year-to-year basis. That has been made very clear in that there have been at least three Chairpersons who have been brought to my attention during these proceedings, two of whom have given evidence. The fact that an organisation such as the Plenty Valley Services Association Inc is a dynamic body whose constitution may change from time to time means that there is not, and could never have been, any certainty that Mr Cini would have continued in his employment, given that the Committee could change and therefore could change its mind as to how it wanted to do things, and that if it acted properly it could have terminated his employment in any event.
 I do not need to deal with the issues that are specifically raised by s.392(3) but I do adopt the language that was used by Mr Harrington; that is, even if I came to a view that a remedy was appropriate, the answer would have to be a zero compensation amount, given the conduct of the Applicant in not providing proper accounting records for the cash component of his functions. I do not need to consider s.392(3) but it is the same and similar principle which has exercised my mind in deciding that I simply will not exercise my discretion to grant any form of remedy in this matter.
A Cini on his own behalf
N Harrington, of Counsel, for the Respondent
August 8, 9, 10
2 Ibid at paragraph 51
3 Attachment KT07 to Exhibit R2
4 Attachment DM01 to exhibit R7
5 (1995) 62 IR 371 at 373
7 Attachment KT06 to Exhibit R2
Printed by authority of the Commonwealth Government Printer
<Price code A, PR527878>