DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Ms Garima Manishi
v
SAI Global Property Division Pty Ltd trading as SAI Global Property
(U2014/14831)

Application for relief from unfair dismissal; compensation awarded.

Introduction

[1] Ms Garima Manishi was a team leader in Electronic Document Records Management at SAI Global Property Division Pty Ltd (SAI) until the termination of her employment for serious misconduct on 17 October 2104. Ms Manishi commenced with SAI as a casual team member on 10 April 2012. After two months Ms Manishi was made a full-time employee and within another two months was made second in charge of the team. She was acting team leader from February 2013 and promoted to team leader from 1 August 2013.

[2] Ms Manishi’s letter of termination contains the following:

“Your actions of forging a signature, and the inconsistencies in your reasons throughout this investigation has broken down the trust between yourself and the company to a point beyond repair. It also shows a complete disregard and lack of respect for others. Your actions are in breach of SAI Globals’ code of conduct and of your employment contract. Your behaviour was wilful and has exposed unnecessary risk to the business and under the circumstances is considered serious misconduct.

After considering your response and the circumstances it has been decided that your employment will be terminated effective immediately.” 1

[3] This is strong language: trust has been broken beyond repair; the actions show a complete disregard and lack of respect; there is a breach of the code of conduct and the employment contract; the behaviour was wilful; and finally the conduct has exposed unnecessary risk to the business. Against this background, summary dismissal, with its attendant impact on unemployment benefits and future job prospects, results.

[4] There is no issue that Ms Manishi is a person protected from unfair dismissal or that other jurisdictional impediments exist before a consideration of the merits.

The work involved and the alleged conduct

[5] Relevantly, SAI services the major banks by keeping accurate records. The position held by Ms Maniski as a team leader in the property division required her being responsible for leading a team whose duties were:

● Receiving physical documents;
● Preparing the documents for scanning;
● Indexing scanned documents;
● Physical file and retrieval of paper documents; and
● Dispatch and destroy physical and image documents.

[6] Ms Maniski had 14 direct reports who were administrative or clerical staff.

[7] Within the team, the person who is responsible for indexing these documents, which it appears mostly relates to property transactions, signs what is called an Over The Counter Receipt (OTC). This OTC describes what documents were received and will be scanned. The OTC is actually headed “Receipt for physical document drop off”. 2 However, it should also be stated that the documents arrive in a number of ways; through the normal post, by express post and couriers.

[8] In short, these employees are involved in a record management system which must accurately reflect when and what documents are received. The employee responsible for any particular batch of documents collates, then identifies what is contained in the batch and signs the OTC.

[9] On 8 May 2014 at about 4:30 p.m., Ms Maniski was sitting with Ms Lenore Comrie assisting her during a busy period. Ms Comrie had approximately 6 ‘higher priority’ matters that needed to be completed by 5.00 p.m. to comply with their Service Level Agreement (SLA). 3 In assisting Ms Comrie with this task, Ms Maniski wrote Ms Comrie’s name on the OTC as Ms Comrie had the main carriage of the task.

[10] On 9 May 2014, Ms Comrie, in response to an enquiry about missing the SLA, reviewed the documents from the day before and noticed that Ms Maniski had written her name on the document. Ms Comrie’s evidence was that she was concerned that an OTC receipt was issued under her name when she didn’t sign it. Ms Comrie was also concerned that given the nature of the matter, it was unnecessary to produce an OTC. Ms Comrie was concerned that any failure in the SLA may have been attributed to her.

[11] This matter remained dormant until some five months later when Ms Comrie attended a training module on code of business conduct and compliance. During this training, mention was made of fraudulent or dishonest conduct. Ms Comrie’s evidence was that this training struck a chord with her and she recalled the incident of Ms Maniski writing her name. The matter was raised with Human Resources which began an investigation.

[12] On Tuesday 14 October 2014, before lunch, Mr Brett Van der Leest saw Ms Manishi at the lift. It was the evidence of Ms Manishi that Mr Van der Leest said he wanted to see her. Ms Manishi stated that she asked if it was important to which Mr Van der Leest replied “nothing crazy”. 4 Mr Van der Leest denied saying this5 but could not recall what was said.6 He agreed in cross-examination that he did not provide Ms Manishi with any information about the intention of the meeting7 but he regarded it as an informal meeting.8

[13] The notes of this informal meeting were taken and subsequently produced. 9 Those notes are headed “Forged signature/Grievance investigation.”

[14] Those notes reveal that:

● Ms Manishi was asked if she remembered forging Ms Comrie’s signature.
● Ms Manishi responded by saying she would never do anything like that.
● Mr Van der Leest asked her if the document was retrieved and it did show that she signed Ms Comrie’s name, what would be her answer.
● Ms Manishi caused an inquiry to be made and when she saw the OTC some two hours later, she presented it to the operations manager and advised that she did write Ms Comrie’s name.

[15] A further meeting was held on Thursday 16 October 2014. The notes reveal that:

● Ms Manishi stated that as Ms Comrie had used the word “forged” and it was busy day, she did not recall the event. But when she saw the document she realised she had written Ms Comrie’s name.
● It was a general practice in the team.
● Ms Manishi did not believe that it had any impact on the organisation.
● The way Ms Comrie described the action was that it was not ethical.
● Ms Manishi stated that she could have signed the OTC but that Ms Comrie had done the preparatory work.
● Ms Manishi stated that it was normal practice, not illegal, not ideal, but everyone does it.

[16] A further meeting was held on 17 October 2014 where the notes reveal that Ms Manishi stated, among other things:

● I know what I did was unethical.
● I did it in front of her so why didn’t she raise it?
● I apologise and accept what I did was wrong and I have been very honest in my job.
● As soon as I saw it, I said it was me.
● I apologised, acknowledging that it was unethical and should be given a formal warning and put on observation.
● I didn’t realise the impact and I had no intention of doing this. My intentions were to help staff members.
● I will be careful now, even if it is not this job, in my future. I will be careful.

[17] On that day Ms Manishi had her employment terminated for serious and wilful misconduct.

Statutory context

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.

[18] It is to those statutory tests that I now turn. Firstly s.387(a); whether there was a valid reason. In this case, whether there was a valid reason for the summary dismissal of Ms Manishi, although the statute relates simply to the termination of employment. To begin, I am not satisfied that it could be properly described as Ms Manishi “forging” a signature. There is no conflict in the evidence that during a busy period Ms Manishi wrote Ms Comrie’s name on the OTC. There is no evidence that Ms Manishi sought to make an illegal copy of Ms Comrie’s signature for any particular gain. Whilst language can be loosely used and this originated by Ms Comrie’s use of the term, nonetheless SAI used that language in its dealings with Ms Manishi. It was wrong of Ms Manishi to write another person’s name but this is qualitatively different from accusing a person of forgery.

[19] Secondly, there is no evidence that this act was wilful. Further, there is no evidence that the first denial was wilful. This was an event which occurred five months earlier and when Ms Manishi uplifted the document she immediately advised that she had written Ms Comrie’s name. The delay in clarifying the situation, in the notes of the employer, was approximately two hours. These facts cannot sustain a view that her actions in this regard were wilful.

[20] There is no evidence that Ms Manishi’s actions exhibited a lack of respect for either Ms Comrie or SAI. Ms Manishi was contrite and her actions at the time were designed to assist Ms Comrie and not to show her any disrespect. There is some evidence about the relationship between Ms Manishi and Ms Comrie, but it appears not to have travelled into this incident and as such I don’t deal with it.

[21] Whilst record keeping is important and the accuracy of records is also important, in this case the evidence is that the OTC did not need to be signed in any event. In these circumstances there is no basis for reaching the view that Ms Manishi’s actions created any risk for the business. 10 There is no evidence that the documents themselves were not properly recorded.

[22] The reference to failing to meet the code of conduct relates to the values described as: accountability, ethical conduct, accuracy, trust and integrity. What Ms Manishi did was a mistake. In fact she accepted that her conduct was unethical. However, I am loathed to find that a mistake of this character made during a busy period where employees are seeking to maintain service levels constitutes unethical conduct or a lack of integrity. I do accept that such an event impacts upon accountability and accuracy. As for trust, this seems to be a major consideration in the mind of the decision maker, Ms Gina Assimakis. Ms Assimakis held the view that if the applicant had been upfront from the outset, the outcome may only have resulted in a written warning. 11 However, because Ms Manishi’s version of events had frequently altered and her due to her subsequent conduct, this led to a significant loss of trust and confidence.

[23] The concern of Ms Assimakis about frequently altering her version of events relies, it seems, on two aspects of the investigation. The first is the denial about writing Ms Comrie’s name. It only needs to be said that the employer categorised it as forging and it was five months earlier to highlight the risk in quickly judging this as lying. Even more so when consideration is given to the fact that within approximately two hours, Ms Manishi saw the document and went to the operations manager to state that she now recalled that she had written Ms Comrie’s name. These facts cannot visit upon Ms Manishi a deliberate act of altering version of events which must be the assumption if an adverse inference is drawn. The second alteration to the version of events was the view held by Ms Manishi that “everybody does it” when referring to writing other people’s names on OTCs . This was clearly an overcooked statement by Ms Manishi, however there was evidence that such action had indeed occurred although it is vague.

[24] At the conclusion of the proceedings the following exchange took place:

THE DEPUTY PRESIDENT:  But of course labelling someone as committing serious misconduct is an important matter that I have to take into consideration.  Whether or not the conduct was serious misconduct, I have to take into consideration the fact that what was done, whilst an error of judgment, nobody is saying that it was done for an improper purpose.  She was actually helping.  But the focus, and particularly from Ms Assimakis’ evidence the focus was that the responses to the concern expressed by the employer, didn’t give her the necessary confidence that there was an understanding or an appreciation how to conduct oneself properly in the role.

MR HASSALL:  Yes.  And that summarises the respondent’s position precisely. 12

[25] This is clearly not a case of serious misconduct. It only needs to be stated that, but for view that there were inconsistencies in Ms Manishi’s version of events, she would have received a written warning. Inconsistencies, not the incident itself is what tipped the scales for the decision maker in favour of termination. Having decided to terminate, the letter now seeks to elevate the actions prior to the interviews as serious misconduct. That proposition is not sustainable. For the applicant, it was stated that Ms Assimakas may not have had the full facts at her disposal when making the decision to terminate. Indeed, I have reached the view that an overcooked statement by Ms Manishi does not provide a valid reason for the termination of her employment and certainly not the odium which would attach to the current letter of summary dismissal. I find there was no valid reason. In two and a half years Ms Manishi went from a casual to team leader and this letter should not be allowed to stand on her employment record.

[26] In relation to the other statutory tests, I find as follows:

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

[27] Ms Manishi was given an opportunity to respond.

(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;

[28] It does not seem that there was an unreasonable refusal by the employer to allow a support person.

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

[29] In the result, it appears to me that this might be regarded as unsatisfactory performance of a team leader but there is no evidence of any earlier warning. This is not surprising given that it led to summary dismissal.

(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;

[30] This employer has the necessary resources to deal with this matter professionally.

(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

[31] This does not arise as the employer did have access to dedicated human resources management.

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

[32] There are no other matters I consider relevant beyond those adumbrated under valid reason.

Conclusion in relation to harshness etc.

[33] I find that there was no valid reason for Ms Manishi’s termination of employment and as a consequence the termination was harsh, unjust and unreasonable.

[34] I now turn to remedy.

[35] Section 390 of the Act deals with the remedies that may be ordered in circumstances where a person is protected from unfair dismissal and has been dismissed unfairly. It provides:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

[36] Ms Manishi does not seek reinstatement and has undertaken further studies and obtained other employment. She applied for a working with children check and seeks a career in child care. Given that Ms Manishi seeks a change in career it would be inappropriate to reinstate her to the position she held. Therefore, I turn to consider compensation.

[37] Section 392 of the Act provides in part:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

[38] It is appropriate that consideration be given to each of the criteria separately.

(a) the effect of the order on the viability of the employer’s enterprise;

[39] There is no suggestion that an order for compensation would impact upon the viability of the enterprise.

(b) the length of the person’s service with the employer;

[40] Ms Manishi had not been employed for a long period. However, her promotion within the business is noted. She started as a casual and ended up as a team leader on approximately $60,780 per annum within a two and half year period. There is no evidence to suggest anything other than that she had an unblemished record of service with this employer.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[41] In the ordinary course certain assumptions can be made. Firstly, but for the conclusion drawn by Ms Assimakis that the responses were not consistent with being a team leader, Ms Manishi would have been given a written warning. Given there was no history of poor performance or conduct it might be expected that she would have continued in her employment at that level (but wiser) for in excess of six months.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[42] Ms Manishi has actively sought to mitigate her loss. Her evidence was:

Ms Manishi, can you explain to the Commission what you have done to obtain work since your dismissal?---After my dismissal, because it was a termination so I knew I would not be getting any reference checks from my company.  So after that I thought I would be doing my further studies to enhance my skills or further develop my skills in some other field.  So I was terminated on Friday.  So from Monday I applied for Working with Children check so that I can work in childcare, and I did my studies and I also was looking for a placement in childcare centres.  But most of the childcare centres said that they take new interns in the month of January because this is when they start the session.  But I was lucky to get a placement in one of the centres close to my house, so I started working - doing my placement from December, on 4th of December, and I finished my placement on 28th of January.  So I was doing my placement and then before I finished my placement, because of my role there I was offered a job in that centre.  And I told them that I would be leaving for India because I have to get married in front of my family and the society, and they said, “Okay, we'd like you here as a childcare educator so that we could be happy if you want to go back and then come back”.  So when I came back from India on 7th of March I sent them an email saying, “Is everything all good and am I still coming back from 10th of March?” and they said, “Yes” and since then I have been working there. 13

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;

[43] As can been seen Ms Manishi has obtained other employment, although the pay slip submitted shows less than a 38 hour week and indeed a variation in hours. The pay rate however is $21.56 per hour. This is approximately $9.00 per hour less than she was earning in her position at SAI. These figures are approximate and drawn from the material referred to by the parties. I infer from the evidence that the less hours related to the training, but now Ms Manishi has full-time employment at the child care centre.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;

[44] The Children Services Award 2010 [MA000120] is the most likely award and the rate shown on Ms Manishi’s pay slip is in advance of the minimum rate for an employee on commencement. However, I shall use her rate and extrapolate it to a 38 hour week. Therefore I conclude that from 10 March until 18 April (18 April being six months following the termination of employment) Ms Manishi would earn approximately $4,917.00. Her earnings from the time of termination until March included four weeks pay that the employer provided notwithstanding the summary dismissal and this would be approximately $4,675.00. The only information available for other amounts is two pay slips provided which equals $409.46.

[45] I asses the amount of income reasonably likely to have been earned during this period, as being $10,001.00 (rounded). If an award was made for six months salary, that would be $30,390 minus $10,001.00 which equals $20,389.00.

(g) any other matter that the FWC considers relevant.

[46] Given the variables in the material presented I propose to deduct 15% for contingencies. This results in an amount of $17,330.00. I will not make any further deductions given the terms of the dismissal and the impact upon Ms Manishi. In a time when template letters and documents are preferred over individual consideration and engagement, this letter of dismissal, with minor variations, has all the hallmarks of a pro-forma with an “insert name here” approach.

Decision

[47] Having found that Ms Manishi’s termination of employment was harsh, unjust and unreasonable, I determine that an amount of $17,330.00 (less appropriate taxation) as compensation be paid in lieu of reinstatement within 21 days. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

G. Dircks, Agent, for the applicant.

R. Hassall, Solicitor, on behalf of SAI Global Property Division Pty Ltd.

Hearing details:

2015.

Melbourne:

March; 16 and 17.

<Price code C, PR563169>

 1   Letter of Termination dated 17 October 2014, signed by Mr Brett Van der Leest, HR Manager and Ms Thalia Steinberger, HR Officer.

 2   See Exhibit H3—Attachment C.

 3   See Exhibit D1 at paragraph 9; and Exhibit H3 at paragraphs 19-24.

 4   Transcript PN99.

 5   Transcript PN535.

 6   Transcript PN536.

 7   Transcript PN537.

 8   Transcript PN541.

 9   Exhibit H1—Attachment G.

 10   See Transcript PN1188—1195.

 11   Exhibit H2 at paragraph 40.

 12   Transcript PN1320—1321.

 13   Transcript PN61.

Printed by authority of the Commonwealth Government Printer