[2017] FWC 2572
FAIR WORK COMMISSION

DECISION


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

Ms Lauren Webb
v
The Trustee for SWC Unit Trust T/A Salisbury Day Surgery
(U2015/16452)

COMMISSIONER SPENCER

BRISBANE, 26 MAY 2017

Application for relief from unfair dismissal, related to application of Applicant’s mother, allegations of bullying made by other employees, allegations of fraud and theft, procedural fairness issues.

INTRODUCTION

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Ms Lauren Webb (the Applicant), alleging that the termination of her employment from The Trustee for SWC Unit Trust T/A Salisbury Day Surgery (the Respondent) was harsh, unjust and or unreasonable. The Respondent is owned and operated by Dr Donald “Digger” Whittaker, Medical Practitioner and Director of the Respondent.

[2] The Applicant commenced employment in May 2014 as a Receptionist/Administrator, and was summarily dismissed on 27 November 2015. The Respondent submitted the reasons for the dismissal, were due to the Applicant engaging in bullying conduct against two other employees; and incorrectly recording the hours she had worked on her timesheet, and claiming payment for those hours. The Respondent alleged that this conduct amounted to fraud and theft. The Respondent, in pressing the wage issue, relied on records that indicated when the clinic had been accessed by the Applicant, and wage sheets.

[3] The Applicant stated that all of these records had not been put before her, prior to the termination of her employment. The Applicant did not agree that the wages had been inappropriately claimed. She made submissions in respect of her working outside of core business hours, to mitigate the alleged errors on her timesheets, and submitted that there were serious procedural defects with the dismissal process. The defects included being provided with less than 48 hours to respond to the alleged incidents (some of which dated back 18 months), and not being provided with the records relied on by the Respondent, in making the decision to terminate the Applicant’s employment

[4] There are commonalities between the present application and the application made by Mrs Nicole Webb (the Applicant’s mother), who was also an employee of the Respondent and was dismissed for substantially similar reasons at the same time (the Related Matter). 1 Whilst the Applicant in this case has jointly filed material with the Applicant in the Related Matter, this Decision concerns only the dismissal of Ms Lauren Webb. As a result of the related nature of the applications, the two matters were heard together, and there is some overlap in the material and considerations in the respective decisions.

[5] The matter was listed for Conciliation before a Fair Work Commission Conciliator in early 2016. However, settlement was unable to be reached at Conciliation and the Applicant requested that the matter be listed for Conference. Directions were issued for the filing of evidence and submissions.

[6] Shortly after the matter was allocated for arbitration, the Respondent referred the basis for the dismissal, in terms of the allegations of fraud and theft, to the Queensland Police Service (the QPS). The QPS conducted an investigation into the allegations, however it was confirmed several months later that no charges would be laid against either the Applicant or Mrs Nicole Webb. As the subject of the QPS investigation related to the reasons for the Applicant’s dismissal, the matter before the Commission was stayed, whilst the investigation was conducted.

[7] The matter was listed for Determinative Conference for 23 March 2017, however was subsequently adjourned when Dr Whittaker was hospitalised, at the last moment, for diverticulitis. As a result of the extended progress of the matter, and the fact that only partial material had been filed, a Directions Conference was held. Final attempts were made, with the consent of the parties, to resolve the matter, however the parties subsequently requested that the matter proceed to arbitration, and the matter was relisted for Determinative Conference on 20 April 2017.

[8] At the hearing before the Commission, the Applicants were self-represented, and the Respondent was represented by his brother, Mr Stanley “David” Whittaker. Mr Whittaker held no formal legal qualifications, and was not appearing as a paid agent. Therefore, it was not relevant to consider the question of representation, pursuant to s.596 of the Act

[9] Whilst not all of the evidence and submissions are referred to in this Decision, all of such have been considered.

BACKGROUND

[10] On 25 November 2015, a letter titled “Show cause as to why your employment should not be terminated due to serious misconduct” (the Show Cause Letter) was emailed to the Applicant from Dr Whittaker. The letter raised allegations of bullying, fraud and theft, and invited the Applicant to respond to the allegations.

[11] The Show Cause Letter is provided below:

[12] In accordance with the instructions in the Show Cause Letter, the Applicant provided a joint written response (with the Applicant in the Related Matter, Mrs Nicole Webb, her daughter) to the Respondent, on 27 November 2015 (the Response Letter), as provided below:

[13] On 27 November 2015, the Respondent sent a letter titled “Termination of your employment due to serious misconduct” (the Termination Letter) to the Applicant. The Termination Letter summarily ended the Applicant’s employment.

[14] The Termination Letter is provided below:

RELEVANT PROVISIONS OF THE LEGISLATION

[15] Pursuant to s.385 of the Act, “unfair dismissal” is defined as meaning:

[16] Further, ss.386(1) and (2)(a) of the Act relevantly provide:

[17] Pursuant to s.387 of the Act:

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[18] The Applicant submitted that the termination of her employment by the Respondent was harsh, unjust and or unreasonable. She submitted that the Respondent terminated her employment based on “premeditated allegations”, including allegations that she had bullied two other employees of the Respondent, and that she had committed theft and fraud against the Respondent by dishonestly reporting her working hours. The Applicant denied these allegations and submitted that the Respondent did not have a valid reason for the dismissal. 2

[19] The Applicant further submitted that she was not provided with a reasonable opportunity to respond to the allegations, or provided with an opportunity to rectify any alleged breaches.

Allegations of bullying

[20] The Applicant submitted that, on the morning of 16 November 2015, she was informed that allegations of bullying had been made against Mrs Nicole Webb and herself. 3 She informed Mrs Nicole Webb that they were not permitted to enter the clinic.

[21] Later on 16 November 2015, Ms Nicole Webb received a text message from Dr Whittaker, requesting that the Mrs Nicole Webb and the Applicant attend the clinic for a meeting. The Applicant and Mrs Nicole Webb attended the meeting with Dr Whittaker and Mrs Shirley Whittaker, his wife, at the clinic, where they were advised that two employees of the Respondent, Ms Joanne Cheng, Registered Nurse, and Ms Amanda Kim, Registered Nurse and Practice Manager, had raised allegations of bullying against them. It was then submitted that Mrs Nicole Webb was taken into a separate room from the Applicant, with Dr Whittaker and Mrs Whittaker.

[22] Mrs Nicole Webb, on the behalf of the Applicant, submitted that Dr Whittaker stated that Ms Cheng and Ms Kim were lodging an anti-bullying application with “Fair Work Australia”. Mrs Nicole Webb, on the behalf of the Applicant, submitted that Dr Whittaker then stated that, “he cannot not afford to have himself or his business go down this track”.

[23] The Applicant then had the opportunity to speak with Dr Whittaker and Mrs Whittaker, however it is not clear on the submissions of the Applicant whether Mrs Nicole Webb was present for that meeting. Mrs Nicole Webb gave evidence that Dr Whittaker told the Applicant to “stop the tears”, suggesting that Mrs Nicole Webb was in attendance. 4

[24] The Applicant did not provide submissions in respect of the substantive bullying allegations.

Allegations of fraud and theft

[25] The allegations of theft and fraud, raised in the Show Cause Letter, related to an allegation that the Applicant had been incorrectly completing her timesheets.

[26] The Applicant submitted that these allegations were not put to her during her employment with the Respondent, only after she was stood down. 5 The Applicant submitted that she was only allowed two days to respond to these allegations, from receipt of the Show Cause Letter on 25 November 2015 until 27 November 2015.6

[27] The Respondent tendered building access records, after the dismissal occurred, that allegedly showed that the Applicant was incorrectly reporting her start and finish times. The Applicant was not able to interrogate the building access records compared to the wage records, prior to the dismissal. Rather, the times alleged by the Respondent, were noted on time sheets submitted by the Applicant on previous occasions, with handwritten notes made by Mrs Whittaker, indicating the alleged discrepancies.

[28] The Applicant submitted that five people were allowed access to the clinic, three of whom had the same pin number to the security pad, including the Applicant, Mrs Nicole Webb and another person (Person A). This communal security code, was transferred to the Applicant in 2014.

[29] In 2014, Person A’s employment was terminated. The Applicant submitted that after this occurred, the security codes were changed due to the possibility of ‘Person A’ gaining access to the building. The Applicant submitted that the Respondent provided her and Mrs Nicole Webb with their own personal security code, however could not recall the specific date this occurred.

[30] The Applicant submitted that there were potential further inaccuracies in relying on the building access records, as, during the course of 2014, the building was under construction. During this period the Applicant submitted that she did not access the building using her security code, as the building had already been opened either by Dr Whittaker or Mr Whittaker, to allow contractors to commence work before and after work hours. The Applicant submitted she would often enter and exit the building with Mrs Lauren Webb and that, therefore only one person would enter their code to enter the building.

[31] The Applicant submitted that she had to undertake phone calls after hours and, that the Respondent’s building access records were inconsistent with landline and mobile phone records in the possession of the Respondent. The Applicant was unable to produce these records, as she submitted; they were in the possession of the Respondent.

[32] In the Respondent’s Show Cause Letter, reference is made to claiming payment for lunch breaks and also to the frequency of the Applicant’s cigarette breaks and that, as a result of these breaks, the Applicant had been incorrectly reporting her hours worked. The Applicant did not dispute that she did smoke before and after work, and throughout the day when time permitted.

Valid reason for dismissal

[33] The Applicant submitted that there was no valid reason for the dismissal, and that the allegations that lead to her termination were premeditated, and unfounded. 7 The Applicant denied the allegations made by the Respondent of bullying, fraud and theft.

[34] Mrs Nicole Webb submitted, on behalf of the Applicant, that during the last few weeks of employment, it was evident that Dr Whittaker was looking for a way to terminate the Applicant and Mrs Nicole Webb’s employment. The Applicant submitted that Mrs Whittaker was visiting the clinic more often than usual and had stated to Mrs Nicole Webb and the Applicant that she was now the “manager and boss”. Dr Whittaker requested for Mrs Whittaker, and Mrs Whittaker’s daughter to be trained in administration, which the Applicant and Mrs Nicole Webb facilitated.

[35] The Applicant submitted that Dr Whittaker did not, at any stage during her employment attempt to raise any discussions with Ms Cheng and Ms Kim concerning the allegations of bullying.

Notified of the reason

[36] The Applicant submitted that she was notified of the bullying allegations verbally on 16 November 2015, and notified of the fraud and theft allegations by email on 25 November 2015.

[37] The Applicant submitted that she was never provided with any prior warnings or written complaints regarding bullying, whilst employed at the clinic, or of the alleged misconduct, fraud or theft.

Opportunity to respond

[38] The Applicant submitted that she was not informed of the content of the bullying allegations or provided a chance to respond during her meeting on 16 November 2015, and that prior to this date allegations of bullying were never mentioned or discussed. The Applicant further submitted the bullying allegations were not mentioned in the Show Cause Letter dated 25 November 2015.

[39] The Applicant submitted that she was provided two days to respond to the fraud and theft allegations.

Support person

[40] The Applicant did not provide submissions, as to whether she was permitted to have a support person present, during the meeting with Dr Whittaker and Mrs Whittaker on 16 November 2015.

Performance

[41] The Applicant submitted that the termination of her employment was not effected due to unsatisfactory performance.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[42] The Respondent submitted that the Applicant’s employment was terminated as a result of bullying allegations made by two other employees, and because the Applicant had committed fraud and theft by inaccurately recording her working hours.

Allegations of bullying

[43] Both Ms Kim and Ms Cheng, the employees whom against bullying is alleged, gave Statements in these proceedings. Whilst the Respondent has provided detailed submissions in relation to the allegations of bullying against the Applicant in the related matter, Mrs Nicole Webb, similar submissions were not made in respect of the Applicant in this matter.

Allegations of fraud and theft

[44] Dr Whittaker, in his Statement dated 4 April 2016, gave evidence in relation to the Respondent’s allegation that the Applicant had engaged in fraud and theft by incorrectly completing her timesheets. He stated that, whilst the Applicant claimed on her time sheets that she never stopped for lunch, on many occasions when he dropped into the clinic, he would find the Applicant eating lunch. 8 Dr Whittaker submitted that they had noticed that the Applicant had been charging the clinic for her meal breaks.9

[45] The Respondent provided the statement of Mrs Whittaker, who submitted that on 9 November 2015, she had bought lunch for everybody from a local restaurant. Mrs Whittaker stated the Applicant and Mrs Nicole Webb ate and chatted in the lunch room for “well in excess of 30 minutes”, yet did not provide for this break on her time sheet. Mrs Whittaker further stated that this example shows the Applicant’s “‘working through lunch’ claim is a fabrication”. 10

[46] In the Statement of Dr Whittaker, reference was made to the building’s access records since the installation of an alarm on 27 February 2014. Dr Whittaker stated that a comparison between these records and the Applicant’s time sheets provided that, as well as claiming her meal breaks as paid work, the Applicant had often claimed starting and finishing times outside the hours that the alarm was unsecured. Dr Whittaker submitted the Applicant “could not have not have been in the office working at the times they claimed”. 11

[47] Ms Kim, in her Statement, stated there were instances when the Applicant would leave the clinic to go shopping. 12 Dr Whittaker provided in his Statement that the Applicant had “over-claimed” $13,470.00 from the Respondent’s business.13

Smoking cigarettes

[48] Ms Kim stated the Applicant was often away from her work station because she was outside the clinic smoking. 14 Ms Kim further stated that the Applicant’s routine on arrival to work was to arrive and immediately go outside for a cigarette.15

[49] Dr Whittaker submitted on 13 October 2015 he had “lawfully instructed” the Applicant only to smoke during meal breaks, and that the Applicant “disregarded [his] lawful instruction”. 16

[50] On 12 November 2015, Dr Whittaker submitted he arrived at the clinic at 6:17 am and that, after finishing a cigarette on the balcony, had found the “butt bucket” full. 17 He further stated that, on the morning of 13 November 2015, he arrived at the clinic at 6:22 am and again found the butt bucket full. Dr Whittaker counted 18 butts in the bucket he had only emptied 24 hours prior. He stated that only the Applicant and Mrs Nicole Webb used that bucket. Dr Whittaker submitted “an average of 10 minutes/cigarette, this means that they spent 180 minutes (3 hours) smoking instead of working”.18

Working from home

[51] The Respondent submitted that clients would often ring Dr Whittaker after hours for booking enquiries; and that Dr Whittaker did not keep a copy of the fee schedule with him. The Applicant raised the issue of patients being told the wrong price for bookings. The Respondent submitted that the Applicant suggested that after hours calls be diverted to her for these enquiries, and she could then give patients the Respondent’s mobile number if medical advice was required. The Respondent submitted that the Applicant offered to do this for free, and that Dr Whittaker reluctantly agreed. 19

[52] The Respondent submitted that 1039 calls were diverted to the Applicant’s phone, 920 of which went to her voice mail, and 535 of which were during the hours the Applicant “claims she was in the office”. 20 The Respondent submitted that based on this data, Dr Whittaker calculated that he had missed out on 239 patients.21

[53] The Applicant had explained that the nature of the calls she was receiving, related to pre and post-surgery enquiries. The Applicant stated that this allegation was not put to her until after the dismissal.

CONSIDERATION

[54] In considering whether a dismissal was unfair, it must be satisfied that the dismissal was harsh, unjust and or unreasonable.

[55] In the days leading up to the hearing, the Respondent raised a jurisdictional objection pursuant to s.385(c) of the Act, stating that it is a Small Business Employer and had complied with the Small Business Fair Dismissal Code (the Code). Further, it stated that the application was frivolous, vexatious and had no prospects of success. It is not in dispute that the Respondent was a Small Business Employer at the time of the Applicant’s dismissal.

[56] Where the Respondent is a Small Business Employer, it is permissible to dismiss an employee, where the Respondent believes, on reasonable grounds, that the “conduct is sufficiently serious to justify immediate dismissal”. 22 The Code specifies that fraud and theft provide grounds for summary dismissal. The onus is then on the Respondent to prove, on the facts, that they had reasonable grounds to hold that belief, however “[f]ailure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.”23

[57] The objections the Respondent made, required a determination of a series of issues, dependent on the evidence to be provided and tested at the hearing. Accordingly, given that the matters set out in the jurisdictional objections were issues that were interwoven with the substantive and procedural issues in the application, the parties were advised that these matters would be considered during the course of the hearing.

[58] Accordingly, these objections were dealt with concurrently with the substantive application.

387 Criteria for considering harshness etc.

[59] Pursuant to s.387 of the Act, “in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account”, each of the criteria in s.387:

(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

[60] The Respondent submitted that the Applicant’s employment was terminated as a result of bullying allegations made against her, and on the basis that she had engaged in fraud and theft by dishonestly recording her working hours.

[61] In considering whether there was a valid reason for dismissal within the meaning of s.387(a), the reason must be “sound, defensible or well founded”, and must not be considered “capricious, fanciful, spiteful or prejudiced”. 24 This determination requires an “objective analysis of the relevant facts”, and is not merely dependent on the Respondent’s belief that the termination was for a valid reason.25

[62] The Full Bench in Carter v Qantas Airways Limited found that whilst there was a valid reason for the dismissal, taking into account the Applicant’s length of service, performance, lack of specific training and personal circumstances, the dismissal was still considered to be harsh and unreasonable. 26 In the current case no performance issues had been raised with the Applicant prior to dismissal.

[63] In respect of the allegations of bullying; s.789FD(1) of the Act states that “bullying” occurs when “an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work, and the behaviour creates a risk to health and safety”. There is no indication that any formal written complaints were made against the Applicant, either internally or externally, prior to the dismissal, regarding this alleged conduct. The allegations of bullying also do not meet this statutory definition, on the evidence provided.

[64] The submissions of the Respondent and witnesses statements provided by Ms Kim and Ms Cheng, in respect of the bullying allegations, relate almost exclusively to the alleged conduct of Mrs Nicole Webb.

[65] It is considered, on the evidence, that at the time the dismissal occurred, on the evidence, that the allegations of bullying were unsubstantiated. The conduct identified by the Respondent, does not amount to bullying, as defined.

[66] The Respondent failed to demonstrate that it conducted sufficient investigations into the bullying allegations, with the other employees, prior to the dismissal, or that it made endeavours to resolve the issues between the parties. There were no reasonable grounds, on the evidence, to hold the belief that the Applicant had engaged in bullying. .

[67] The allegations of bullying relied on by the Respondent did not provide a valid reason for dismissal.

[68] The second ground relied on by the Respondent for the dismissal; was that the Applicant had engaged in fraud and theft by incorrectly recording her working hours.

[69] As previously mentioned, the Respondent referred these allegations for criminal prosecution, and the matter was investigated by the QPS. On 13 December 2016, the Applicant was provided with the following letter after the QPS investigation. The correspondence was also provided to the Respondent:

[70] It is noted that the elements and standard of proof required to substantiate an allegation of fraud and theft at criminal law (beyond reasonable doubt), differ and are higher than the test for misconduct before the Commission (on the balance of probabilities).

[71] Pursuant to s.408C(1)(d) and (e) of the Criminal Code 1899 (Qld), the crime of fraud is committed where a person, “dishonestly… gains a benefit or advantage, pecuniary or otherwise, for any person; or causes a detriment, pecuniary or otherwise, to any person…”. This codification of the test for fraud at criminal law, requires the distinct element of dishonesty. That element of dishonesty is also relevant to the test of misconduct, for fraud and theft, before the Commission.

[72] Whilst conduct that amounts to fraud and theft, if proven, can be categorised as “serious misconduct” for the purposes of the Act, 27 this does not alter the requirement, that the reason for dismissal must be sound and defensible.28

[73] The case of Briginshaw v Briginshaw established the principle that should be observed when determining whether serious misconduct occurred, in the employment law context:

[74] In regards to the treatment of allegations of fraud and theft at a workplace, the decision in McKerrow v Sarina Leagues Club incorporated T/A Sarina Leagues Club, sets out that:

[75] The element of dishonesty, on the evidence in the current case, has not been discharged. Where the Respondent is a Small Business Employer (as is the case with the Respondent), in accordance with the Code, the Respondent must have held a reasonable belief that the Applicant engaged in the conduct, and that the Respondent reasonably believed the conduct was dishonest.

[76] In regard to the first requirement, having regard to the instances referred to by the Respondent of false wages claims, it has been satisfied that, at least on some of the occasions identified by the Respondent, that the Applicant did not record her working hours with sufficient accuracy, when compared to the building access records, and evidence of the Respondent. However, the nature of the Respondent’s evidence can be described as “inexact proofs” and “indirect references”, and whilst the Respondent may have satisfied the evidentiary requirement that misconduct occurred, the evidence is not sufficiently probative to support a finding that the conduct amounted to serious misconduct.

[77] It is noted that in respect to some of these alleged incidents, referred to by the Respondent, related to a period from some months prior, and that the Applicant was given only two days to respond to the allegations. In relation to the second requirement, it was not established, on the evidence, that the conduct of the Applicant was dishonest, only that on the Respondent’s there was a discrepancy. Further, there were no reasonable grounds for the Respondent, to hold the belief that the conduct of the Applicant had been dishonest.

[78] The foundation of the Respondent’s allegations was a comparison of handwritten notations of the building access records against the timesheets. One such incident, relied on by the Respondent, occurred on 30 September 2015, where Mrs Whittaker took the Applicant, Mrs Nicole Webb and other staff of the clinic to lunch. The lunch on this day, can be considered as a staff event, initiated by the Respondent. The Respondent’s reliance on the time claimed by the Applicant for this lunch, with the Respondent, is considered to be an “inexact proof”, of an allegation of defrauding the Respondent. It was not disputed that the Applicant did not identify the lunch break on her timesheet.

[79] During the cross examination of Mrs Whittaker, it was put to her that she had returned to the clinic after lunch to check whether the Applicant had recorded the lunch break. 31 Mrs Whittaker conceded that she had accessed the Applicant’s timesheet to see if she had claimed the lunch break on her timesheet. Mrs Whittaker stated that the Applicant had not recorded an unpaid lunch break. Even if it was construed that the Respondent had taken the staff to lunch, and this was paid time, Mrs Whittaker stated “But how about other staff? It's not fair for others. If they claim the time, why you didn't give other girls the time?”32 The Respondent further alleged that on this day, after the Respondent, seemingly deliberately, had the casual workers finish work and then took all the staff to Yum Cha lunch, the Respondent noted that the Applicant returned to work but claimed for wages for a period, after she left the clinic, based on the Respondent’s notations of the access records on the timesheets. The Applicant stated she had to return to work to finish the duties off, at the clinic, but the other casual staff did not.

[80] Mrs Whittaker, the Respondent’s wife, stated in evidence that after the bullying allegations of Ms Kim and Mrs Cheng were received, she started to attend the clinic every day to check things:

[81] There is no evidence that other staff members’ timesheets were audited on this occasion, by Dr and Mrs Whittaker, only the Applicant’s and Mrs Nicole Webb’s. However, a number of the other staff were also present at the lunch. There is further evidence that the Respondent monitored the Applicant’s timesheet, as Mrs Whittaker stated that:

[82] The evidence was that a smoking procedure (or any discussions surrounding a smoking procedure) had not been in place, until immediately prior to the dismissal. Dr Whittaker had, without warning, determined to introduce a smoking protocol immediately prior to dismissal. During the hearing, Dr Whittaker presented a bag, which he indicated contained 42 cigarette butts that he alleged belonged to the Applicant and Ms Lauren Webb. He stated that he had collected these butts, prior to the dismissal in 2015, and had retained them in the following circumstances:

[83] Whilst this evidence, in itself, is not of any particular probative value, it does indicate that, at the very least, there were several smokers at the clinic including Dr Whittaker, all taking smoking breaks. Having regard to all the relevant circumstances, the demeanour of the witnesses for the Respondent at the hearing, and the nature of the allegations made against the Applicant, there emerges a pattern of conduct that singles out the Applicant and Mrs Lauren Webb, to the exclusion of other employees, also engaged in similar conduct, such as the taking of smoking breaks.

[84] The Applicant made submissions that she was not required to input her building access code on certain occasions (for example, when the building was already unlocked, or during the period where there was a communal code shared by several employees), and therefore the building access records would not correctly reflect the times she was at work. The Respondent did not provide submissions or evidence to account for these occurrences. In accepting these submissions, it is the case that there is significant doubt surrounding the reliability of the building access records. Significant periods of absences identified by the Respondent, are readily excused by these general explanations. Had the Respondent addressed them in a timely manner, the Applicant may have been able to provide specific explanations for the inconsistencies. For these reasons, the building access records relied on by the Respondent provided “inexact proofs”.

[85] Whilst giving evidence, Ms Mons (the Respondent’s bookkeeper) identified that Dr Whittaker did question the wages bill however, 36 she had raised concerns with Dr Whittaker about the overall level of wages paid to administrative staff, which he did not investigate.37 Whilst the Respondent was entitled to place trust and confidence in the Practice Manager, such wages issues should have been audited in a timely manner.

[86] Pursuant to ss.535 and 536 of the Act, employers have certain obligations with respect to time and wages record keeping. The Respondent ultimately carries responsibility with respect to ensuring that the timesheets and wages paid to employees are accurate.

[87] Dr Whittaker stated, at the hearing, that he intended on placing the wages and time information on the public record so that “every person from this point can make their own decision”. 38 However, the proper maintenance of the Respondent’s records is a responsibility the Respondent holds.

[88] Given the legislative requirement of the Respondent to maintain accurate records, by failing to audit the Applicant’s timesheets for an extended period of time (when the Respondent itself, conceded there would be a difficulty in recalling entries of 18 months prior), and to then at a much later stage, allege gross inaccuracies, seems to be an admission of culpability by the Respondent of a failure to audit such records in a timely manner.

[89] There is difficulty in the forensic assessment of, the range of these entries and records in that they were presented months after they were worked and recorded, and timely assessment could not be made of such. Further, the actual building access and phone records were not provided to the Applicant, prior to the dismissal and the Applicant did not have a reasonable opportunity to properly respond to each allegation. The Applicant was required to respond within 48 hours, to a significant range of entries.

[90] Whilst incorrect recording of working hours cannot be condoned, it is the case however, to substantiate an allegation of fraud and theft; the conduct must be proved to be dishonest. The Respondent has not satisfied that, to the relevant standard (on the balance of probabilities) that, the Applicant engaged in misconduct, committed fraud and theft, or was dishonest, as alleged.

[91] The conduct of the Applicant lacks the essential characteristic of being dishonest. It is clear from the evidence, and the demeanour of the Applicant, whilst giving evidence, she was diligent in her work, and that these allegations came as an absolute surprise.

[92] The Commission is not strictly bound to follow the rules of evidence, pursuant to s.591 of the Act, and significant latitude has been allowed to these self-represented parties, to allow them to place all of the material they considered to be relevant before the Commission.

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

[93] The Applicant was advised, during a meeting with Dr Whittaker and Mrs Whittaker, on 16 November 2015, that allegations of bullying had been made against her and she was stood down from her employment the same day.

[94] In the Show Cause Letter, the Respondent reiterated the allegations of bullying and raised new allegations of fraud and theft. The Respondent, prior to the dismissal, provided the Applicant with some of the materials (with building access times noted on wages records) that it relied on to form the view that, the building access, phone records and wages records did not reconcile; to equate to the wages claimed. The connection between these documents was not set out clearly before the dismissal and the Applicant was not able to interrogate the original access records. The building access records (as the comparator to the wage records) were also demonstrated to be unreliable. The notification was procedurally flawed on this basis.

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

[95] It is not clear on the evidence, whether at the meeting on 16 November 2015, was the Applicant given an opportunity to address the allegations of bullying.

[96] The Show Cause Letter after the meeting invited the Applicant to provide a written response to the allegations by 27 November 2015. This was the first occasion on which the Applicant was notified of the allegations of fraud and theft. It is not considered reasonable to levy such serious allegations related to the comparison of an extract of records, over a period of 18 months, and to allow only a period of two days in which to provide a response.

[97] The Respondent relied on extracts of building access and phone records to support its contention, that the Applicant had incorrectly recorded her working hours. Neither of these original documents, were provided to the Applicant prior to the dismissal. Further, in terms of the dates referred to in the Show Cause Letter, a number of the incidents identified by the Respondent, dated 18 months prior to the dismissal. It was entirely unreasonable for the Respondent to expect the Applicant to provide a cogent response to such a range of allegations in terms of days and hours in less than 48 hours.

(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

[98] During the meeting on the 16 November 2015, on the evidence of the Applicant (which is not disputed by the Respondent), the Applicant was not permitted, to act as a support person for her mother, Mrs Nicole Webb, in the meeting with Dr Whittaker and Mrs Whittaker. It is not clear, on the evidence, whether Mrs Nicole Webb was present whilst the Applicant was being interviewed.

(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

[99] The Respondent at the hearing, sought to rely on a new, handwritten list prepared, Dr Whittaker stated, on the morning of the hearing, which allegedly identified incidents of unsatisfactory performance of the Applicant. 39 Given the Applicant had not previously been notified of these issues and, the gross procedural deficiencies of the Respondent in making these allegations so long after the dismissal, this document was not accepted.

[100] The substantive reason for the Applicant’s termination was not performance based.

(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

[101] The Respondent is a Small Business Employer; with 11 employees at the time of the Applicant’s dismissal. The Respondent has not have a dedicated human resource department and the flaws in the process have been considered in terms of the operations of a small business.

(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

[102] The evidence is, as above, that the Respondent did not have access to specialist human resource advice and therefore the process afforded to the Applicant’s has been considered in this context. However, there was a significant lack of very basic procedural fairness, provided in addressing the allegations to the Applicant.

(h) any other matters that the FWC considers relevant

[103] The length of the Applicant’s employment and the Applicant’s work history are relevant to the harshness of the dismissal. The Applicant was a casual employee, who had worked with the Respondent for more than one year without warning or performance issues.

[104] It is also a relevant consideration that, immediately prior to the Applicant’s dismissal, Dr Whittaker’s wife, Mrs Whittaker, became increasingly involved in the Respondent’s business. On the submissions of the Applicant, she had become known as the manager of the business, a position that was previously the responsibility of the Applicant. It is relevant as stated, that Mrs Nicole Webb had achieved accreditation compliance of the business, four weeks prior to the dismissal. Accordingly, given the completion of Ms Nicole Webb’s accreditation work, her role could then possibly be undertaken by another staff member, and this is what had occurred.

[105] It is also relevant that the Respondent referred the allegations of theft and fraud, in relation to the time and wages records, to the QPS and that they found no case to answer. It has also been taken into account that the original records were not provided to the Applicant for assessment (prior to her dismissal) and also that some time had passed since the dates of the entries; making recollection as to what work was occurring on those days difficult. However, it was recognised that only general explanations were provided in response to the allegations, by the Applicant. The Respondent considered the Applicant’s conduct had irrevocably broken Dr Whittaker’s trust and confidence in the Applicant.

[106] Subsequent to the Applicant’s dismissal, the Respondent restructured its business. On several occasions, Dr Whittaker emphasised the more efficient running of the business, since the Applicant and Mrs Nicole Webb’s dismissals. This submission is consistent with the Applicant’s contention that the Respondent was concerned about the viability of the business, whilst the Applicant remained employed. The Respondent made no specific submissions as to how the Applicant had made the operation inefficient, however had submitted that Dr Whittaker was concerned about the level of wages being paid. It is also the case that the Respondent demonstrated favouritism in respect of other employees, and had vilified the Applicant and Mrs Nicole Webb, both at the time of the dismissal, and in its prosecution of the present matter. This is suggestive of the underlying commercial and interpersonal factors between the staff that, the Applicant submitted, lead to the Respondent’s decision to terminate the Applicant’s employment.

[107] The Respondent has raised an objection pursuant to s.587 of the Act that the application was frivolous, vexatious or has no prospects of success. The facts of this case were in genuine dispute between the parties. The objections were raised over 12 months after the application was made and merely reiterated the Respondent’s previous main submissions in the case. Having regard to the matters considered previously in this Decision (being the procedural flaws of the dismissal and the evidence presented), the grounds of theses objections have not been made and accordingly, are dismissed.

[108] It is considered that, the Respondent failed to conduct sufficient inquiries or investigations, into the allegations of bullying, to justify a reasonable belief that the Applicant had engaged in such conduct.

[109] The Respondent was entitled to hold the belief that the Applicant had incorrectly recorded her working hours on her timesheet, based on the building access records compared with the Applicant’s time sheets. However, the identified unreliability of these records, in connection with the Respondent’s failure to conduct any further investigations into the incidents, does not support the Respondent’s belief that the Applicant had engaged in fraud and theft. 40

[110] Therefore, having regard to all the relevant circumstances as identified, the dismissal was harsh, unjust and unreasonable.

REMEDY

[111] Having found that there was a valid reason for dismissal (although that it did not amount to serious misconduct), taking into account all other matters, the dismissal was unfair, it is necessary to consider the appropriate remedy. The Applicant in this matter has not sought reinstatement. The Respondent consistently submitted a loss of trust and confidence in the Applicant, following the discovery of the reasons for dismissal.

[112] Division 4 of Part 3-2 of the Act provides as follows:

[113] The prerequisites required under ss.390(1) and (2) have been met. Section 390 provides that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, it is proper to firstly consider whether reinstatement is appropriate.

[114] In considering whether reinstatement is appropriate in all of the circumstances, the issue of the loss of trust and confidence referred to by the Respondent must be considered. The issue of loss of trust and confidence has been considered by the Commission in Australia Meat Holdings Pty Ltd v McLauchlan as follows:

[115] The Full Bench concluded that in considering reinstatement, all of the relevant considerations as raised in the evidence should be weighed against the practicalities of reinstatement. The approach set out in Perkins remains applicable to all of the considerations of reinstatement.

[116] A consideration of the loss of trust and confidence relevant to the question of reinstatement was undertaken in Thinh Nguyen and anor v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter. 42 The Full Bench stated as follows:

[117] The above authorities on the issue loss of trust and confidence have been considered. Whilst the parties have not made submissions in respect of whether reinstatement is appropriate nor has the Applicant sought reinstatement, regard has been had to the conduct of the parties at the hearing and in correspondence. It is considered that there is a high degree of conflict between the parties and the witnesses.

[118] In taking all of these factors into account, it is not appropriate to order reinstatement. Accordingly, compensation is considered for the reasons set out in relation to the significant procedural flaws and matters related to the timing of the Applicant’s removal from the business, after the accreditation was achieved, and replacing the Applicant with another staff member (as the Applicant had foreshadowed prior to the dismissal was proposed). It must now be considered, the appropriate amount of compensation to be awarded.

[119] The Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket formulated the test for the calculation of compensation. 44 This approached was subsequently adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey35;45 Jetstar Airways Pty Ltd v Neeteson-Lemkes46 and McCulloch v Calvary Health Care.47

392 Remedy—compensation

[120] In calculating the appropriate amount of compensation to be awarded, regard must be had to the matters in s.392(2) of the Act:

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

[121] There is no evidence that an Order for compensation would affect the viability of the Respondent’s enterprise.

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

[122] The Applicant was employed by the Respondent for 18 months, on a casual basis.

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

[123] The Applicant considered that she would have continued working for the Respondent until his anticipated retirement. 48 The Respondent submitted that, prior to, becoming aware of the alleged conduct of the Applicant, her employment would have continued.49

[124] Whilst it is unlikely that the Respondent would have resiled from the decision to dismiss the Applicant, if a reasonable process of clearly putting the allegations to the Applicant was complied with (particularly the bullying matters) it is considered that a further two weeks would have been discharged, in this process. It is unlikely the Respondent would have accepted the explanations of the additional work undertaken. 50

[125] The Applicant was employed on a casual basis and was not entitled to wages in lieu of notice.

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

[126] The Applicant gained subsequent employment on 9 December 2015, approximately two weeks after the termination of her employment from the Respondent, on 27 November 2015.

(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

[127] The Applicant has maintained consistent employment since her dismissal from the Respondent and earned $25,616.00 between her dismissal on 27 November 2015, and 30 June 2016.

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

[128] Pursuant to s.392(3) of the Act, a deduction to any amount of compensation may be made having regard to any misconduct by the person. The Respondent has alleged serious misconduct, however this has not been made out. The Respondent has identified that the wage records do not reconcile with the access records.

[129] The Respondent was employed on a casual basis, and secured alternative employment within a short period after her dismissal. This case can be distinguished from the case of Kool v Adecco Industrial Pty Ltd on the basis that the Applicant in that case had worked for a labour hire company, over a longer period of time on a regular and systematic basis. 51 A valid reason for dismissal was found in the current matter, however as set out, the termination was unfair. The Applicant in this matter worked more sporadic hours and for a shorter period of time, accordingly an award of compensation, in the current circumstances, is not considered to be appropriate.

CONCLUSION

[130] The Applicant’s inaccuracies (as set out, even with the mitigating factors) in the recording of time and wages, provides a valid reason for dismissal. Whilst this conduct cannot be condoned, it has been undermined by significant procedural deficiencies on the behalf of the Respondent. The allegations were not raised with any proximity to the actual period of work, for which the wages were paid and the allegations made. The building access records were demonstrated to be unreliable comparators, thus providing “inexact proofs”, whereby it could not be concluded, on the balance of probabilities, that the Applicant’s conduct was dishonest.

[131] The Respondent did not put the full records, or the reasons for the dismissal, in their completeness, to the Applicant before her dismissal. The Respondent erred by not affording her a reasonable period to respond to and to consider the allegations in a proximate way to the dates of alleged conduct. The allegations of bullying were also not made out. These contingencies, the anticipated length of on-going employment and the further employment gained by the Applicant have been considered.

[132] Taking into account all of the aforementioned reasons, the circumstances of the case (where a valid reason for dismissal was found, but the dismissal was considered to be unfair), and that the Applicant was employed on a casual basis over a period of 18 months and promptly secured alternative employment, it is not appropriate, as set out above, to order compensation.

al of the Fair Work Commission with member’s signature.

COMMISSIONER

Appearances:

Ms L Webb on her own behalf

Mrs N Webb for the Applicant

Mr S Whittaker for the Respondent

Dr D Whittaker for the Respondent

Hearing details:

Brisbane, 20 April 2017

 1   [2017] FWC 2573.

 2   Applicant’s “Criteria for Harshness of Termination of Employment” dated 6 May 2015.

 3   Ibid.

 4   Applicant’s Statement – Hearing dated 13 March 2016 at [4].

 5   Applicant’s “Criteria for Harshness of Termination of Employment” dated 6 May 2015.

 6   Ibid.

 7   Ibid.

 8   Witness Statement of Dr Donald Bruce Paul Whittaker dated 4 April 2016 at [109].

 9   Ibid at [5].

 10   Witness Statement of Shirley Whittaker dated 3 April 2016 at [35].

 11   Witness Statement of Dr. Donald Bruce Paul Whittaker dated 4 April 2016 at [7].

 12   Witness Statement of Amanda Lee Kim dated 2 April 2016 at [5] – [6].

 13   Witness Statement of Dr Donald Bruce Paul Whittaker dated 4 April 2016 at [28].

 14   Witness Statement of Amanda Lee Kim dated 2 April 2016 at [1].

 15   Ibid at [3].

 16   Witness Statement No. 3 of Dr Donald Bruce Paul Whittaker dated 30 January 2017 at [6].

 17   Witness Statement of Dr Donald Bruce Paul Whittaker dated 4 April 2016 at [87].

 18   Ibid at [88].

 19   Ibid at [112] – [113].

 20   Ibid at [114].

 21   Ibid at [120].

 22   Small Business Fair Dismissal Code.

 23   Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922 at [8] – [9].

 24   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

 25   Rode v Burwood Mitsubishi (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) Print R4471 at [19].

 26   [2011] FWA 8025; [2012] FWAFB 5776.

 27   Fair Work Regulations 2009 r.1.07(3).

 28   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

 29   Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 – 363.

 30   [2012] FWA 1251.

 31   Transcript at PN2042.

 32   Transcript at PN2043.

 33   Transcript at PN1956 – PN2025

 34   Transcript at PN1991.

 35   Transcript at PN1424.

 36   Transcript at PN994.

 37   Transcript at PN948.

 38   Transcript PN3104.

 39   Transcript at PN1397.

 40   Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922 at [8] – [9].

 41   (1998) 84 IR 1 at 17.

 42   [2014] FWCFB 7198.

 43   Ibid at [27] – [28].

 44   (1998) 88 IR 21.

 45   [2013] FWCFB 431.

 46   [2014] FWCFB 8683.

 47   [2015] FWCFB 2267.

 48   Transcript at PN1465.

 49   Transcript at PN1467.

 50   James Jones T/A The Pet Cemetery & Crematorium v Ms Raquel Ciuzelis [2015] FWCFB 84.

 51   [2016] FWC 925.

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