| [2017] FWC 32 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jennifer Walker
v
Salvation Army (NSW) Property Trust t/as The Salvation Army - Salvos Stores
(U2016/10458)
SENIOR DEPUTY PRESIDENT HAMBERGER |
SYDNEY, 16 JANUARY 2017 |
Application for relief from unfair dismissal.
[1] Jennifer Walker (the applicant) applied under s.394 of the Fair Work Act 2009 (FW Act) on 19 August 2016 for an unfair dismissal remedy in relation to the termination of her employment by the Salvation Army (NSW) Property Trust trading as The Salvation Army – Salvos Stores (the Salvation Army, the respondent) on 4 August 2016.
[2] The application was heard in Sydney on 22 December 2016. The applicant was represented by J Mack, of counsel, instructed by Marrickville Legal Centre. The respondent was represented by D Kensey, Industrial Relations Adviser for The Salvation Army, Australian Eastern Territory.
[3] Two statements were made by the applicant, dated 29 November 2016 1 and 22 December 20162. Another statement was filed on the applicant’s behalf by Paterson Heenen.3
[4] Two statements were filed on behalf of the respondent, from Stephen Gillespie (Area Manager for Salvos Stores (Western Sydney Area) 4 and Mohamad Taha (Store Manager Lidcombe Salvos Stores).5
[5] It is not in contention that the applicant was protected from unfair dismissal at the time she was dismissed. The issue to be determined is whether her dismissal was harsh, unjust or unreasonable.
[6] On 4 August the applicant received a letter of termination signed by Steve Gillespie (Western Sydney Area Manager) which included the following:
‘Outcome of meeting re: Breaching Professional Boundaries
Following up our meeting on 4th August 2016, where we discussed further the matters in relation to
We met to discuss the above matters and you responded to those concerns.
After carefully giving consideration to your responses on the above matters, a decision has been made to terminate your employment immediately due to serious misconduct.’
[7] The applicant commenced employment with the respondent on or around 30 May 2005. She started as a casual shop assistant at the respondent’s Ashfield store but was soon promoted to store manager. In or around November 2014 she was transferred to the position of store manager of the Lidcombe store. She worked on a full-time basis, working 38 hours a week. Other than the incident that led to her dismissal she had never been issued with any warnings in relation to her performance. 6
[8] The applicant was dismissed as the result of events that took place on Saturday 23 July 2016. On that day, the applicant served a customer she remembers as ‘Shiraz’. According to her statement she walked around with Shiraz while he was looking for furniture.
‘Shiraz was picking up the things that he wanted and I was noting the items in my notepad and putting ‘sold’ stickers with Shiraz’s name on the items.’ 7
[9] In the statement the applicant initially filed with the Commission, she gave evidence that while she was assisting Shiraz she was recording the items he was selecting on an ‘Australian Banknote Notepad’ that looks like a fifty-dollar note. 8
[10] In her subsequent statement (filed with the Commission on the day of the hearing) she said:
‘I refer to my previous statement … and concede that I was mistaken as to the CCTV footage at 11:16 showing me holding the Australian Banknote Notepad fifty-dollar note. I have poor eyesight and have only had an opportunity to carefully view the CCTV footage on a small 13” laptop…
… I now acknowledge that what appears to be a fifty-dollar note in the CCTV footage at 11:16 is legitimate Australian currency, however maintain that at no time did I accept any money from Shiraz on 23 July 2016’. 9
[11] During her cross-examination the applicant was asked how her eyesight had prevented her up until that morning from seeing what had happened. She replied:
‘---Well, on a bigger screen when it’s bigger you can actually see clearer, and if I had the opportunity to view the footage over and over originally in the beginning then, you know, I was just trying to think what could it have been. I know that – because I knew that the man didn’t give me any money and I thought it could have been the notepad. But once I could study it and see it, you know, then I realised that maybe it wasn’t my notepad.’ 10
[12] The applicant said she realised that it was not the notepad the day before the hearing. 11
[13] According to the applicant at about 11:10am on Saturday 23 July 2016 she approached the counter with Shiraz. They then had a conversation to the following effect:
‘Shiraz: I want other things but you do not have them in stock. When do you get new furniture in?
Me: Things come in every Monday and Thursday.
Shiraz: Will you be here on Monday?
Me: No that is my day off. Come in on Monday and ask for the tall guy, Mo.’ 12
[14] The applicant’s statement continues:
‘At 11:15 am on 23 July 2016 while speaking at the counter with Shiraz I began pointing to the back of the store. I was pointing to cane bedside tables that I wanted to show Shiraz….
I then went to the production room with Shiraz to show him a lounge we were holding for a different customer who had not come to collect it. The production room is at the back of the store.
At about 11:16am on 23 July 2016 I collected the receipt book/docket book (‘Docket Book’) from under the register…
After I collected the Docket Book I walked to the production room with Shiraz.
When we were in the production room I put the Docket Book down on the table and wrote Shiraz’s name on the top of the docket and listed the items he wanted, which I had put sold stickers on. I had halved the price for Shiraz and the total came to $200. I wrote the numbers “200” on the docket.
I then had a conversation with Mr Shiraz to the following effect:
Me: What is your address for delivery?
Shiraz: I do not have an address because I have just moved to a new place. I will come back Monday to see what comes off the truck.
Me: When you come in on Monday give the list to the tall guy, Mo.’ 13
[15] The applicant said in her statement that at no time while she was helping Shiraz did he give her any money for either the items he had selected or for delivery.
[16] CCTV footage from the store was played during the hearing 14. This shows the following:
● At 11.02 the Applicant is working inside the counter of the Salvation Store, attending to several customers.
● At around 11.03 two men (one of whom the applicant identified as Mr Shiraz) appear in the store and come to stand at the counter where the applicant is working.
● At 11.03.24 the applicant walks out of the counter area while talking to a third man, then turns to the men, and walks with them in the direction Mr Shiraz is pointing.
● At 11.03.30 they stop at a bed. Then the applicant returns to the counter area.
● At 11.04.04 the applicant is standing inside the counter area. She reaches to her right to a shelf under the counter and pulls out a folder (which the applicant said during her oral evidence had the ‘sold’ stickers on it15), puts it in her left arm, picks up a pen in her right hand and leaves the counter area.
At 11.04.12 the applicant leads the men away into the store. With the applicant leading, the applicant and the men walk out of screen. (According to the applicant over the next few minutes she would have been walking around the store with Mr Shiraz putting stickers on items he was interested in purchasing 16.)
At 11.10.29 the applicant reappears. She is talking. The men reappear. All three move to the outside area of the counter. (According to the applicant Mr Shiraz was telling her that the store did not have all the furniture that he needed. ‘He was after a smaller lounge and a wardrobe but what I had were very large ones at the time. 17)
● At 11.11 the applicant is talking to the two men, holding the folder in her left hand. She writes something with her right hand. According to the applicant: ‘This was when I thought everything was going to be finalised and then shortly I remember there’s a smaller lounge in the back room that a gentleman hadn’t picked up and I had given till lunch time that Saturday to pick up, and if he didn’t I was reselling and that’s when I took him out and showed him the lounge that was out there and he wanted it.’ 18
● The applicant points to something in the store.
● At 11.11.42 the applicant picks up the folder in her left hand and leads the men to another part of the store. They are no longer in view.
● At 11.15.25 the applicant reappears top right of screen. She is holding the folder in her right hand and two pieces of white paper in her left hand.
● At 11.15.36 the applicant starts walking to the counter. She is holding the folder in her right hand and the pieces of white paper in her left.
● At 11.15.42 the applicant enters the counter area, still with the folder and the pieces of white paper in the same hands.
● At 11.15.44 with her right hand, the applicant tries to place the folder under the counter. She is still holding the white papers in her left hand.
● At 11.15.47 when the applicant’s right hand is visible again from the shelf, it looks like she is holding something in it. It looks gold. It is blurry in the footage and then at 11.15.48 the applicant’s hair has swung to the right, and covers her right hand.
● At 11.15.49 it is clear that the applicant is holding a $50 note. The applicant places the $50 note in her left hand on top of the pieces of white paper as she moves to her left in the counter area.
● At 11.15.50 the applicant opens a drawer (second from top) in the counter area, using her right hand. (According to the applicant this is where the delivery notices are kept 19 She went there to see if there were any more deliveries there20).
● At 11.15.53 the applicant closes the drawer with the front of her legs. The $50 is still visible in her left hand.
● At 11.15.54 standing at the same position, the applicant opens the top drawer.
● At 11.15.58 the applicant turns to her right, so her face is now visible on screen. She walks a couple of steps. It is towards the camera, so it is clear that she is holding the $50 up, between the thumbs of both hands.
● At 11.16.01 the applicant picks up the $50 note in her right hand, between finger and thumb. She holds it up. It is very clear that it is just one $50 note.
● At 11.16.06 the applicant starts to fold the $50.
● At 11.16.12 the applicant folds the $50 note in the two pieces of white paper, which she folds over again. (According to the applicant the pieces of paper would have been delivery notices 21. She said she was folding the two pieces of paper to allow them to fit in her apron22)
At 11.16.18 the applicant steps right, to the same shelf in which she placed the folder (at 11.15.46).
At 11.16.20 the applicant pulls out what looks like a blue book (which the applicant identified as the ‘docket book’ 23 or ‘delivery book’24) and, carrying the book she leaves the counter area to rejoin the men. With the applicant leading, they move to another part of the store and off screen. The applicant said about what was happening at this point:
‘Well, I remember I was thinking, okay, I’ve got to go – we go through the little list of the notes we’ve made, make sure that everything he definitely wants. I had halved the prices of the furniture for him so I wrote down – I looked at my notes and wrote down that itemised list, put his name at the top and the gap that’s left there between his name and the item is where we would normally put the address, and when I asked him for the address he said that he was just moving in and didn’t have it yet and that he wanted to come Monday to see what was coming off – he asked me when we got new furniture and I said “Every day things walk in. They’re donated. And Mondays and Thursdays we get a truck but I never know what’s going to be on the truck” So he said he would come in on the Monday to see if a smaller wardrobe was coming off the truck that he wanted. And he said he’d finalise it all then. So I remember having a little – a gasp, like “I thought I had this one for today, another one for John 25.” So I wrote – I had the 200 figure written there. I explained to him that Monday is my day off and I wouldn’t be there Mondays – not on Monday, and I ripped that out of the book and said to him, “When you come in you see the tall man, I said to him. There was only – I knew there would be him and Helene there and I would explain to him, and he was to give that to Mo, so that Mo would know the 200 on there meant if Mo walked around individually to all the items he would’ve seen the full price on there and charged the man that.’26
● At 11.20.21 the applicant appears back on screen holding a book which has a cardboard back and a black spine. When she turns around, it is clearly the delivery book.
● At 11.20.27 the applicant returns to the counter and she opens the delivery book and places her finger on an open page. When the applicant stops to talk to a child the delivery book is closed.
● At 11.20.45 the applicant flips through the delivery book and reopens it as she re-enters the counter area.
● At 11.20.48 the applicant is in the counter area. She pulls a white paper from the back of the delivery book, and she puts that white paper in her apron pocket. (According to the applicant that would have been her notes to remember Monday morning when she would ring Mr Taha.) 27
● At 11.20.51 the applicant returns the blue back to its original shelf. She retains something in her right hand. It looks like the pieces of paper she folded earlier. She appears to put them in her apron pocket.
[17] In her second statement the applicant said that she was responsible for engaging a delivery driver to deliver items purchased by customers. At the beginning of the day, usually within the first hour, she would check the top and second drawer behind the counter to see if there were any deliveries scheduled for that day. On occasions when she knew the driver was coming for a delivery she would put the delivery notice and the money for delivery (if the customer had paid in advance) in her apron pocket. She did this because if she was at the back of the store it was quicker to give the driver the delivery notice and money 28. She agreed that she was holding a fifty dollar note but that this was payment for a delivery from another customer and nothing to do with Mr Shiraz.
[18] During her cross examination the applicant said that when someone paid up front for a delivery the money would initially be placed in one of the drawers behind the counter. She said that on the morning in question she would have already put the $50 note together with the delivery notice in her apron, prior to the period of time captured by the CCTV footage, probably between 9 and 10am. When she opened the drawers it would have been to check if there were any more delivery notices. 29
[19] The applicant denied she said to Mr Shiraz that the register area was busy. 30 She agreed that all sales had to be processed through the cash register without exception.31
[20] The applicant said in her statement that she phoned Mohamad Taha on Monday 25 July 2016 and told him that ‘a curry guy’ would be coming in that day, that he had an itemised list of furniture that she had ‘stickered’ for him on Saturday and that he wanted to see what came off the truck on Monday. 32
[21] Mr Taha gave a written statement for the respondent. His evidence is that the applicant never said anything to him about any customers not having paid for goods 33. While he could recall Ms Walker ringing him on Monday 25 July 2016 he could not remember a conversation with her about a customer that came in the previous Saturday.34
[22] He said that at some time on Monday 25 July 2016 Mr Shiraz approached Helene Lim (Store Assistant) and him at the registers. According to Mr Taha the conversation between Mr Shiraz, Ms Lim and himself proceeded with words to the effect of:
‘Mr Shiraz: Jenny told me that you were going to be receiving furniture on Monday. Did you receive any?
Me: it’s whatever we have here at the moment.
Mr Shiraz then went and had a look around. He came back to me some time later:
Mr Shiraz: You didn’t receive any wardrobes?
Me: it’s whatever we have here in store.
Mr Shiraz: I’d like to get my items delivered if I can.
Me: May I have your receipt?’ 35
[23] According to Mr Taha, Mr Shiraz then gave him a receipt from the delivery docket book which was used to organise deliveries. A copy of the receipt was annexed to his statement. It is a plain piece of paper with ‘05’ on the top right hand corner and the name ‘Shiraz’ written on it. There is a list of furniture with ‘200 -’ written underneath 36.
[24] Mr Taha said the conversation continued with words to the effect of:
‘Me: Did you receive a receipt from the cash register? (I printed a test receipt from the cash register) For example, did you receive on one of these?
Mr Shiraz: No
Me: Did you pay for it on the weekend?
Mr Shiraz: Yes, I paid for it.
Me: How come you didn’t get a receipt?
Mr Shiraz: Jenny said it was too busy at the time.
Me: Can you show me the items please?
Mr Shiraz took me around to the items. I noticed that they all had sold stickers on them which included his name. The option ‘delivery’ was circled, but nothing else was filled out on the stickers.’ 37
[25] Mr Taha then said he rang the Area Manager, Steve Gillespie because the receipt Mr Shiraz had was not part of the usual process for customers to buy goods. 38
[26] Mr Gillespie (Area Manager) in his statement said that the phone conversation was along the following lines:
‘Mo: I’m a bit concerned. A customer, Mr Shiraz, came in today to purchase a couple more items but he wanted to know if he could have a copy of his cash register receipt as Jenny told him it was busy at the register and she would give him a handwritten copy as a docket. That seems strange.
Me: I agree. What did you say to Mr Shiraz?
I told him that because the sale was rung up on Saturday I couldn’t reprint a copy of the docket. It all seems rather strange because Jenny had only given him a hand written docket and told him it was a receipt as the register area was busy at the time.
OK. I’ll do an investigation into this. Can I get you and Helene just to keep details of this confidential. And can I get you to send me a copy of the receipt that Jennifer gave Mr Shiraz?’ 39
[27] Mr Gillespie then obtained the CCTV footage from the store for 23 July 2016. He says in his statement:
‘When I saw the CCTV footage I could see what I believed to be cash in Jenny’s hand in relation to the transaction with Mr Shiraz, which she then folded up in a piece of paper which she later appears to place in her apron. This supported Mr Shiraz’s claim that he had given Jenny money for the furniture sale.’ 40
[28] Mr Gillespie met with the applicant on 29 July 2016. The minutes of the meeting were attached to Mr Gillespie’s statement. These included the following:
‘Steve told Jenny that this meeting is in reference to some investigations which he is conducting regarding a furniture sale in the Lidcombe Store last Saturday that did not appear to have been processed properly.
Steve said it related to a sale on Saturday 23rd July at about 11 am. Steve showed Jenny a hand written note where a list of items was written along with $200 written on it.
Jenny said yes she wrote that, and gave it to the customer. She said she knows that customers had received the goods yesterday (or the day before).
Steve asked who processed the sale then. Jenny said that she assumed that Mo had done so, on Monday or Tuesday.
She said she did not process a sale on Saturday as the customers were wanting to buy some other items as well, and were going to come back to the Store in the coming days.
Jenny said that she had noticed that her assistant was busy at that time processing other sales.
Jenny said she never took money from them. The docket was to put the items on hold.
Steve said that the customers came back earlier this week asking for a receipt. Jenny said, well then check with Mo, because he should have given them a receipt when they paid later.
Jenny said that she can’t believe that she is actually having a meeting about something like this.
Steve said the sales records of the last week show no sale in this amount for these types of items.
Jenny said that Steve should look at the CCTV cameras, as this will show that she never accepted any money from Mr Shiraz.
Jenny said that Steve should also contact the customer, as he will be able to confirm that she did not take any money for the furniture items.
Steve said to Jenny that he obviously needed to follow up on several lines of enquiry, as a result of her responses, and that he would get back to her in the next few days as to the status of the investigation.
Jenny said that she wants to know if she will get an apology when the investigation is over. Steve said he would be following up on the investigation as mentioned, and that he had a responsibility to get to the bottom of it, given the information that he currently has in hand.’ 41
[29] During his cross-examination Mr Gillespie agreed that he did not tell the applicant during this meeting that he had already obtained and examined the CCTV footage. 42
[30] Following this meeting Mr Gillespie rang Mr Shiraz. He attached to his statement a file note he made of the conversation dated 29 July 2016:
‘I spoke with Mr Shiraz and he stated that on Sat 23rd in the store room whilst looking at a lounge with Jenny he handed her $200 for the items of furniture he wish to purchase
Jenny stated to him that the Register Counter was very busy, so she would give him a written docket.
Mr Shiraz came back into the Lidcombe shop on Monday 25th July 2016 and asked Mohammed for a Register Receipt
Mohammed informed him he couldn’t do a register receipt as the sale went through on Sat
Mr Shiraz stated that’s O.K. then’ 43
[31] Mr Gillespie then wrote a letter to the applicant which included the following:
‘We had an initial meeting on Friday 29th July to discuss matters in relation to
[32] The applicant was invited to a meeting with Mr Gillespie and the Human Resources Manager ‘to analyse the outcomes of the investigation’, and where she would be given an opportunity to respond to the allegations against her. She was advised that she could have a support person present at the meeting. 44
[33] The meeting took place on 4 August 2016. According to Mr Gillespie, the decision to dismiss the applicant was made during a 20 minute break in the meeting, after he had had an opportunity to consider all of the evidence. The applicant continued to deny that she had taken any money from Mr Shiraz.
[34] During his cross examination Mr Gillespie said that he thought the CCTV footage showed the applicant had a number of notes in her hand – indeed that it did not cross his mind that there might have only been one note. 45 He thought the CCTV footage showed her with $200 in her hand.46 He also said that it had never crossed his mind that Mr Shiraz was attempting to get something for free.47
[35] Mr Annexure I to Exhibit S2 (Mr Gillespie’s statement) was a ‘statement’ from Mr Shiraz. However Mr Shiraz was not called by the respondent to give sworn evidence before the Commission and was not available for cross-examination. I indicated during the course of the hearing that, in these circumstances, I would attach no weight to Mr Shiraz’s ‘statement’ 48.
[36] In considering whether the applicant’s dismissal was harsh, unjust or unreasonable the Commission is required to take into account the factors outlined in s.387 of the FW Act. These are:
‘(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.’
[37] The following statements by the Full Bench in King v Freshmore are as pertinent to matters under the Fair Work Act (2009) as they were to such proceedings under the Workplace Relations Act 1996 (leaving aside cases involving the Small Business Fair Dismissal Code – which does not apply here).
‘When a reason for a termination is based on the conduct of an employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. … The Commission must determine whether the alleged conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.’ 49
[38] While the expression was not used in the letter of termination it is clear that the applicant was dismissed for theft 50. In such cases it is appropriate to have regard to the considerations referred to by Dixon J in the case of Briginshaw v Briginshaw.
‘The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. …It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty" This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. …. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. 51’ [emphasis added, references deleted]
[39] While the Commission is required to apply the civil standard of proof, that is ‘the balance of probabilities’, given the serious nature of the alleged misconduct about which it must be satisfied in this case, it must be careful not to rely on ‘inexact proofs, indefinite testimony, or indirect inferences’.
[40] I turn first to whether there was a valid reason for the applicant’s dismissal. While this was not made explicit in her letter of dismissal it is clear that the applicant was dismissed for theft; more specifically for taking $200 from Mr Shiraz for the sale of furniture but keeping the money for herself rather than putting it through the cash register.
[41] The key factual issue therefore is whether Mr Shiraz gave $200 to the applicant.
[42] The respondent submitted that ‘the inferences that can be drawn strongly support the respondent’s version of events compared to the applicant’s’. In particular it relies on the fact that the CCTV footage showed the applicant having cash in her hands after she had been in the production room with Mr Shiraz. The respondent suggested that the fact that the applicant said in her interview that the cash registers were busy was consistent with the version of events described by Mr Shiraz. Also the applicant issued a handwritten delivery receipt even though no sale had been processed. The respondent submitted that its witnesses presented as honest and transparent while the applicant’s credibility was undermined by the way she had changed her version of events, including changing her story as to whether she had real money in her hands as shown by the CCTV, as opposed to writing on an ‘Australian banknote notepad’.
[43] No evidence was provided to the Commission that Mr Shiraz made any payment to the applicant. The CCTV evidence at its highest shows the applicant folding a single 50 dollar note in a white piece of paper and putting it in her apron. There is nothing to suggest that the 50 dollar note came from Mr Shiraz. The applicant has a plausible alternative explanation of where the 50 dollars came from. It is also noteworthy that the respondent claimed that the applicant received two hundred dollars from Mr Shiraz – indeed Mr Gillespie believed incorrectly that the CCTV footage showed the applicant with four 50 dollar notes.
[44] Given the lack of direct evidence, I am being asked by the respondent, in effect, to rely on ‘indirect inferences’ such as the fact that the applicant had money in her hands at some point around the time she was serving Mr Shiraz and that she apparently said during her interview that the cash registers were busy. By contrast the applicant has consistently denied ever receiving any money from Mr Shiraz, both during the investigation and in her evidence before the Commission. She gave plausible explanations for her behaviour on the 23 July 2016.
[45] I am satisfied, based on the evidence presented to me in the proceedings, that the applicant did not receive any money from Mr Shiraz. It follows that she was not guilty of misconduct and the respondent had no valid reason for her dismissal.
[46] I am satisfied that the applicant was aware of the allegation against her.
[47] I am satisfied that the applicant had an opportunity to respond to the allegations against her.
[48] Mr Heenen’s evidence indicates that he went with the applicant to the respondent’s premises on 4 August 2016 to support her at the meeting that day. However he was not invited into the meeting by Mr Gillespie. 52 Despite this I am satisfied that the respondent did not unreasonably refuse to allow the applicant to have a support person present to assist at any discussions relating to her dismissal.
[49] The respondent is a large employer. It should be expected to adopt rigorous procedures in relation to matters such as this. I am not satisfied that it did so. At the very least it would have been preferable if the applicant had been given a better opportunity to examine the CCTV footage and give her own account of what occurred, prior to her dismissal. The alacrity with which the respondent accepted Mr Shiraz’s version of events over that of a long standing employee is certainly surprising.
[50] The respondent has access to specialised human resources expertise.
[51] I do not consider there are any other matters that are relevant.
[52] Given my finding that the applicant was not guilty of the misconduct for which she was dismissed I have no hesitation in finding her dismissal unjust and unreasonable.
[53] The applicant does not wish to be reinstated. It is uncontested that she has been applying for alternative employment, but at least at the time of the hearing she had not been successful. 53 I am satisfied that an order for the payment of compensation to the applicant is appropriate in all the circumstances.
[54] Section 392 of the FW Act provides as follows:
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.’
[55] A recent Full Bench stated 54:
‘[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:
“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”
[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic”. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.’ (references deleted)
[56] In this case, the applicant had over 11 years’ service with the respondent at the time of her dismissal. She had never received any warnings in relation to her performance. In the circumstances I would determine her anticipated period of employment as one year.
[57] The applicant earned $44,809 per annum. 55 The starting point is therefore $44,809.
[58] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e). Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f). Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula. 56
[59] The applicant had earned nothing between her dismissal and the hearing. The applicant has received no earnings since her dismissal. Given her circumstances, I consider it likely that she will be able to obtain at least some casual work prior to the end of the period of anticipated period of employment. I would deduct a figure of $10,000 to take this into account, leaving a figure of $34,809.
[60] The applicant’s length of service would support the award of a higher than average amount of compensation.
[61] An order for compensation would not affect the viability of the respondent’s enterprise.
[62] I am satisfied that the applicant has tried to obtain other work. No adjustment should be made because of her efforts to mitigate her loss.
[63] The applicant did not receive any payment in lieu of notice.
[64] I do not consider there are any other matters that are relevant.
[65] The compensation cap is $22,404.50 (the annual salary divided by two). As this is less than $34,809 it is the amount that should be paid as compensation. I do not see any reason for it to be paid in instalments.
[66] The amount of compensation which is derived from the above considerations is $22,405.50, less deduction of any tax as required by law. I consider that is an appropriate amount of compensation in all the circumstances. A separate order will be issued giving effect to this conclusion.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr J Mack of counsel appeared for the Applicant, instructed by Mr V Maroulis, solicitor, of Marrickville Legal Centre
Mr D Kensey appeared for the Respondent
Hearing details:
2016
Sydney
22 December
1 Exhibit W1
2 Exhibit W2
3 Exhibit W3
4 Exhibit S2
5 Exhibit S3
6 Exhibit W1, paragraphs 3-11
7 Exhibit W1, paragraph 17
8 Exhibit W1, paragraph 19
9 Exhibit W2, paragraphs 4-5
10 PN80
11 PN86
12 Exhibit W1, paragraph 20
13 Exhibit W1, paragraphs 21-26
14 Exhibit W4
15 PN172
16 PN176
17 PN190
18 PN191
19 PN211
20 PN352
21 PN225, 351
22 PN253
23 PN309
24 PN337
25 The name of the delivery driver
26 PN329
27 PN342-3, 350
28 Exhibit W2 paragraphs 6-9
29 PN109-124
30 PN412-414
31 PN466
32 Exhibit W1, paragraph 28
33 Exhibit S3, paragraph 7
34 PN841
35 Exhibit S3, paragraph 8
36 Exhibit S3, annexure B
37 Exhibit S3, paragraph 9
38 Exhibit S3, paragraph 10
39 Exhibit S2, paragraph 6
40 Exhibit S2, paragraphs 7-8
41 Exhibit S2, annexure B
42 PN736
43 Exhibit S2, annexure C
44 Exhibit S2, annexure D
45 PN744-747
46 PN785
47 PN775
48 PN279-274
49 Michael King v Freshmore (Vic) Pty Ltd print S4213 [2000] AIRC 1019
50 Exhibit S2, paragraph 27
51 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (30 June 1938)
52 Exhibit W3
53 PN907
54 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries [2016] FWCFB 7206
55 Employer’s Response Form F3, paragraph 1.5
56 Ibid at [31]
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