[2017] FWC 32


Fair Work Act 2009

s.394—Unfair dismissal

Jennifer Walker
Salvation Army (NSW) Property Trust t/as The Salvation Army - Salvos Stores



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:

The evidence

[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.

[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:

[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:

[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:

[14] The applicant’s statement continues:

[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 11.04.12 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 11.16.18 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:

[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:

[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:

[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:

[27] Mr Gillespie then obtained the CCTV footage from the store for 23 July 2016. He says in his statement:

[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:

[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:

[31] Mr Gillespie then wrote a letter to the applicant which included the following:

[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:

[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).

[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.

[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’.

Valid reason

[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.

Notification of the reason for dismissal

[46] I am satisfied that the applicant was aware of the allegation against her.

Opportunity to respond

[47] I am satisfied that the applicant had an opportunity to respond to the allegations against her.

Support person

[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.

The size of the employer’s enterprise

[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.

The presence of human resources expertise

[50] The respondent has access to specialised human resources expertise.

Other matters

[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:

[55] A recent Full Bench stated 54:

[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.

tle: Seal of the Fair Work Commission with Senior Deputy Hamberger's signature



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:



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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