DECISION

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

Lynelle Ajax
v
Credit Union Australia Ltd
(U2020/9873)

Application for an unfair dismissal remedy – alleged fraudulent use of café account paid for by the Respondent – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] On 20 July 2020, Ms Lynelle Ajax made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) alleging she had been unfairly dismissed by her employer, Credit Union Australia Ltd (CUA or the Respondent).

[2] Ms Ajax commenced employment with CUA on 21 July 2014. At the time of her dismissal she was working on a full-time basis as a Customer Service Specialist. She was dismissed on 1 July 2020.

Hearing

[3] The matter was heard before me on 2, 3 and 18 November 2020. Permission was given pursuant to s.596(2)(a) of the Act for Ms Ajax to be represented by Ms Leanne Tacey, Lawyer from Anderson Gray Lawyers. The Respondent was granted permission pursuant to s.596(2)(a) of the Act to be represented by Mr Nicholas Derrington of Counsel, instructed by Mr Nick Humzy-Hancock, in-house Legal Counsel.

[4] In addition to Ms Ajax giving evidence and being cross-examined, the following witness evidence has been taken into consideration:

•  Ms AB, former employee of CUA, called for by Ms Ajax;

•  Ms Belinda Nichol, Manager of Hard Coffee café;

•  Mr Andrew Thompson, Customer Service Specialist at CUA;

•  Mr Carlos Natale, Home Loan Specialist at CUA;

•  Ms Melissa Cardillo, Local Area Manager (Brisbane) at CUA;

•  Mr Mitchell Reus, Customer Service Specialist at CUA;

•  Mr Phillip Seeto, Customer Service Specialist at CUA; and

•  Ms Deborah Ryan, Regional Sales Manager at CUA.

[5] I have made a confidentiality Order [PR730470] in respect of Ms AB on account of her resolution of an unfair dismissal claim with CUA, settled on confidential terms. As is clear in this decision, I have strong views relevant to Ms AB’s credit in these proceedings, however she has resolved her own application with CUA, and I do not consider it is appropriate to identify her.

[6] During the conduct of this matter, I made the following interim procedural orders:

•  On 18 September 2020, on application of CUA, I ordered Ms Ajax to produce bank statements for an account of hers held at CUA between 1 November 2019 to 30 June 2020 inclusive;

•  On 27 October 2020, on application of CUA, I ordered Ms Nichol to attend the hearing on 2 November 2020;

•  On 11 November 2020, on application of Ms Ajax, I ordered CUA to produce all internal documents that were, inter alia, relevant to the investigation leading up to Ms Ajax’s termination; and

•  On 24 November 2020, on my own initiative, I ordered HSBC Bank Australia Ltd to produce records that proved the transaction time for three specific transactions of Ms Ajax’s on 11 June 2020.

Background

[7] CUA is a member-owned credit union, employing over 1,000 staff throughout Australia. As part of Ms Ajax’s role as a Customer Service Specialist, if members of CUA were in the branch for a lengthy period of time, she would inquire if they would like a tea, coffee or other beverage. If the member did wish to have a complimentary beverage, Ms Ajax would go nearby to the local café, Hard Coffee and place an order for the member. The charge would be made on CUA’s account at the café. Typically, the café staff would then deliver the beverage to the branch when the order was ready. The use of the CUA’s account with Hard Coffee was limited to these ‘business situations’; it was not in place for CUA staff to utilise for themselves.

[8] In early June 2020, Ms Cardillo, the Brisbane branch manager, made enquiries with Hard Coffee about the accounts being charged to CUA. Ms Cardillo spoke to Ms Nichol, the Manager – an employee, not owner – of Hard Coffee. Ms Nichol made a comment to the effect, “I warned them, I told them they would get caught…”.

[9] Mr Cardillo followed these comments up with Ms Nichol on 9 June 2020, at which time Ms Nichol specifically named Ms Ajax and Ms AB as using the Hard Coffee account for personal use.

[10] On 16 June 2020, Hard Coffee produced the invoices to CUA. Upon review, relevant managers within CUA formed the opinion that the amount invoiced appeared high considering all of Australia was largely shut-down in the relevant months due to COVID-19, which had dramatically reduced foot traffic into the Brisbane branch.

[11] On 19 June 2020, Ms Ajax was issued with a letter, alleging she misused the CUA account with Hard Coffee to pay for her own orders consisting of five coffees in March 2020 amounting to $20.71, 16 coffees in April 2020 amounting to $67.20, and three coffees in May 2020 amounting to $13.79. Ms AB received a similar letter of allegations, nominating the same coffees.

[12] Ms Ajax responded to the allegations in writing on 21, and 23 June 2020, and orally at a meeting held on 25 June 2020 with Ms Cardillo and Ms Ryan. Ms Ajax admitted to charging an incorrectly made coffee to the CUA account, which she then gave to Mr Natale. She also claimed that during the lockdown she would offer coffees to customers waiting in the line outside the branch.

[13] Ms Nichol provided a statement to CUA for the purposes of its investigation on 24 June 2020, wherein she said Ms Ajax (and Ms AB) were using the CUA account for personal use throughout March, April, and early May 2020.

[14] By letter issued on 25 June 2020, CUA advised Ms Ajax that the allegations were substantiated and asked her to show cause as to why her employment should not be terminated.

[15] Ms Ajax attended a show cause meeting, supported by Mr Chris Fraser of the Finance Sector Union, with CUA on 30 June 2020. Ms Ajax offered to provide bank statements to prove her personal coffee expenses throughout the period in question, and also claimed that most of her coffees were purchased with cash.

[16] Ms Ajax’s employment was terminated with immediate effect on 1 July 2020 by letter, finding the conduct constituted theft and was serious misconduct. Despite CUA finding serious misconduct, Ms Ajax was paid notice on termination.

Relevant Legislation

[17] Section 394 of the Act sets out:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[18] Further, ss.385 and 387 provide:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

[19] There are no jurisdictional issues preventing the Commission determining if the dismissal was unfair. The application had been made in time. Ms Ajax has been dismissed and has met the minimum employment period. CUA is not a small business. The dismissal was not that of a genuine redundancy. Accordingly, it is necessary to determine if the dismissal was unfair having regard to the considerations in s.387 of the Act.

Evidence of Ms Ajax

[20] Ms Ajax filed four statements of evidence dated 11 September 2020, 30 October 2020, 13 November 2020, and 27 November 2020.

Coffee Account

[21] Ms Ajax confirmed that she knew of the CUA beverage account with Hard Coffee Café since her commencement at the Brisbane branch. In her first statement, Ms Ajax said that a directive not to use the account for staff beverages came in November 2019, however she later corrected the date to be July 2019. Ms Ajax said that in July 2019, Mr Stephen Wardell, Local Area Manager, gave a directive that moving forward, staff could no longer use the coffee account for personal use. 1 Ms Ajax’s evidence is that the day after the directive was given, she had the following conversation with Ms Nichol:2

Ms Ajax: We have to pay now! … CUA won’t even pay for one coffee for us now, which I have no problem with, but it’s more the fact that they can’t even provide coffee or tea in our lunch room here, as other CUA branches do … Can you believe that?

Ms Nichol: That’s ridiculous.

[22] Ms Ajax gave evidence that the six employees of the Brisbane CUA office preferred to drink the following beverages:

•  Ms Cardillo drinks diet cordial;

•  Ms AB drinks regular milk flat whites, sometime skim milk;

•  Mr Thompson drinks long blacks;

•  Mr Catale drinks regular milk flat whites;

•  Mr Seeto drinks regular milk cappuccinos; and

•  Mr Reus drinks regular milk flat whites.

[23] After ordering coffees from the café, the drinks would normally be delivered to the CUA branch. Hard Coffee did not require staff to sign for coffees received, and apart from stating that the drinks should be charged to the CUA account, no authority was required to have the drinks so charged.

[24] Ms Ajax said that she usually drinks just one coffee a day, rarely two, and sometimes none. Though she prefers Hard Coffee, she also drinks coffee from The Summit Café, Nowhere Espresso, McDonalds Wintergarden and The Bagel Boys.

[25] Ms Ajax stated that she always has full cream milk in her coffee, and her preferred coffee is a piccolo cafe latte. When she is catching up with friends, or when she is menstruating she might order a cappuccino. Her evidence is that if she orders a cappuccino, because of the size of it, she will slowly sip at it for a long period, sometimes over the full work day. Ms Ajax’s evidence is that when she ordered a cappuccino, it was a medium size and not a small. Further, she said that it was unusual for her to buy a coffee at or after lunch, as she did not have coffee every day and if she was having one, she would usually purchase it before work. 3

[26] Expect for one incident on 13 March 2020, Ms Ajax followed the direction of Mr Woodall to only order complimentary coffees for customers, and not for personal or staff use. Her evidence is that when she ordered coffee or food or a combination of both for herself, friends, family or colleagues, she paid for these purchases.

[27] Ms Ajax also gave evidence that during the COVID-19 lockdown period, and in light of many organisations not accepting cash payments, she started to use her card as the primary payment method. Prior to this practice being implemented, her preference was to pay for food or beverages with cash. 4

[28] In relation to 13 March 2020, Ms Ajax says that the barista at Hard Coffee prepared a flat white rather than a hot chocolate for Ms Ajax’s friend. Ms Ajax thinks it might have been the barista’s first day on the job, and when Ms Ajax pointed out the error to her, she appeared flustered. Ms Ajax stated that she felt sorry for her and did not want her to get into trouble for making the incorrect order. The barista agreed to make the hot chocolate and Ms Ajax said to her about the flat white, “Don’t worry, just put that one on CUA’s account.”

[29] Ms Ajax’s evidence is that she believed that one of her colleagues would appreciate the coffee. She noticed that Mr Reus already had a coffee in his hand. She said to Mr Natale, “Hi Carlos, do you want this coffee?” He agreed, and Ms Ajax handed the coffee to him.

[30] Later that day, Ms AB reported to Ms Ajax that Mr Reus was telling others that she had placed all of her coffee order, including those of her friends with her that morning, on the CUA account. Ms Ajax was upset as it was untrue.

[31] Ms Ajax later confronted Mr Reus in front of other staff members. The following conversation occurred:

Ms Ajax: Why are you telling everyone that I put coffee on CUA’s account for me and my friends when you have no idea what happened. I have no problem with people confronting me if they have an issue, but I do have a problem with people spreading rumours when they don’t know the facts.

Mr Reus: I didn’t, I said you put coffees on CUA’s account.

Ms Ajax: For me and my friends, apparently.

[32] Ms Ajax stated that Ms Cardillo required her and Mr Reus to attend her office. Ms Ajax castigated Mr Reus over a large number of matters. It is her evidence that Mr Reus said to her, “I am sorry, I am aware it was wrong, and I am working on it.” She stated that Ms Cardillo did not raise with her the coffee issue.

[33] Ms Ajax stated that thereafter she did not make any personal purchases on the CUA account. She was absent from work 1-10 May 2020 and again on 15 May 2020.

[34] Relevant to the COVID-19 lockdown period, she observed a significant reduction of people in the city, however as the CUA branch is in the middle of a main thoroughfare, there were still customers going into the branch. She said that many of their inner-city residing customers were required to physically attend work during this time, and still needed to have their banking needs met. 5 Ms Ajax gave evidence that during this time, she would go to Hard Coffee, wait for the orders to be ready, pick up the customers’ coffee orders and then return to the branch to deliver the coffee to CUA customers. She said that Ms Nichol was often the only staff member working at Hard Coffee at the time and was unable to deliver CUA customer coffees to the branch as was the usual pre-COVID practice.6

[35] Ms Ajax gave evidence that Ms Nichol did not at any time in April 2020, warn her about using the coffee account. 7 Further, she says that she does not consider Ms Nichol to be a personal friend, rather an acquaintance with whom she had a “regular customer type relationship”.8 Ms Ajax reports that she is a friendly and generous person, helping people where needed. She recalled a few occasions where she ‘minded’ Hard Coffee for Ms Nichol when she went to the bathroom.9

[36] On 19 May 2020, Ms AB relayed to Ms Ajax a conversation she overheard between Ms Cardillo, Mr Reus and Mr Thompson, where Ms Cardillo said, “We need to find two good salespeople, but we like [Ms AB], she’s funny”. 10 Ms Ajax states that her low sales numbers were often criticised by the other sales staff, but that she openly focussed on customer experience and retention rather than sales volume. Ms Ajax felt that Ms Cardillo was “going to try to get rid of (her) as (she) was customer focussed and not number and bonus focussed.”11

[37] Ms Ajax gave evidence that on or around 12 June 2020, she went to Le Bon Choix on Edward Street, and bought $40 worth of macarons to share in the office. She says that she would regularly purchase nice treats to share with her colleagues. She says that on the way back to the office, she stopped at Hard Coffee to buy a coffee. She notes that Ms Nichol was working, and she offered Ms Nichol a macaron. Ms Ajax said that when she then asked for a medium cappuccino and held out her HSBC card to pay, Ms Nichol said words to the effect, “Don’t worry, you can have the coffee for giving me a macaron”. Ms Ajax says however she insisted that she pay, and that Ms Nichol took her card and processed the eftpos transaction.

[38] On 17 June 2020, Ms Cardillo introduced new paperwork to be completed by CUA staff to reconcile complimentary coffees ordered at Hard Coffee with the invoice charged to CUA. Ms Ajax did not come forward to Ms Cardillo with any “concerns” as she was not concerned about other employees’ use of the coffee account, nor her own. 12

[39] Ms Ajax stated that she always offered coffee or tea to the customers waiting, and this was not overheard by the security guard as he stood inside the doors with one door closed. Ms Ajax stated that the Mind Map activity had nothing to do with the amount of coffee that are ordered. She said that a customer is offered a coffee no matter what business they have come to deal with. 13

Mind Maps

[40] Ms Ajax said that Ms Cardillo would encourage ‘the boys’ to do whatever it took to reach their targets, including Mind Maps being completed after the member left the branch, to reveal other sales opportunities linked to other key performance indicators.

[41] Ms Ajax says the reason she did not complete many Mind Maps for customers in the store during the COVID lockdown period is because she was opposed to completing them in the absence of the customer. She believes that to complete Mind Maps after the customer has left may be a breach of Australian privacy law and goes against her internal CUA training.

[42] Ms Ajax stated, however, she did all she could to reach her targets, in compliance with her training and understanding of CUA policies and regulatory requirements. She said that as she only completed Mind Maps while members were in front of her, her figures were lower than the boys. She said because of this, Ms Cardillo would make comments that she was not contributing to the team’s success; and further that ‘the boys’ would make comments in meetings in this regard, which she said Ms Cardillo would often agree with if she was present. Ms Ajax said she was always within the usual performance requirements, and exceeded expectations in the ‘IMCUA’ area. 14

Time at the Counter

[43] Ms Ajax said that between 23 March 2020 and 30 April 2020, she worked on the front counter serving members. She also submitted that prior to 23 March 2020 and after returning from leave in May 2020, part of her normal duties was to be rostered to work on the front counter serving members, which she did. Ms Ajax also submitted that when calls were quiet, she would help out the front when they were busy and would be helping cover lunch breaks.

Meetings

[44] Ms Ajax stated her understanding of the meeting held on 17 June 2020 was for Ms Cardillo to advise there had been concerns around the use of the coffee account, that she was undertaking an investigation, and that if necessary, staff would be contacted regarding the investigation. Ms Ajax understood that going forward, staff were required to fill out documentation when using the coffee account to purchase coffee for members.

[45] Ms Ajax said that Ms Cardillo did not say in the meeting or in the follow up email sent at 10.03am that day, that each team member was required to go and see her to discuss the coffee account. Ms Ajax noted that the email offered an invitation: 15

“Should you wish to discuss any concerns you have, please come and see me before the end of today”.

[46] Ms Ajax said she had no concerns and was happy to follow the process that had been implemented by Ms Cardillo. She stated that if Ms Cardillo had made it clear that she was required to go and see her, she would have done so.

[47] Ms Ajax’s evidence is that employees are pre-warned regarding one-on-one meetings about performance or bonuses. She said she was given two hours’ notice before being called into the first formal meeting on 19 June 2020. She said this left her unable to obtain a witness or support person. She considered that she was being targeted by Ms Cardillo for having lower sales results than ‘the boys’, and she felt the need to ‘protect herself’. For these reasons she decided to electronically and covertly record the meeting. She further electronically and covertly recorded the next meeting on 25 June 2020. In her evidence to the Commission, she stated that she was not provided with any direction that meetings should not be electronically recorded.

[48] CUA was not aware that Ms Ajax had electronically and covertly recorded the meetings of 19 and 25 June 2020. Ms Ajax acknowledges that she was directed to not record the meetings on 30 June and 1 July 2020, but by this time she had formed the belief that she was not being listened to, that she was going to be terminated, and that she needed to keep an objective record of the process. She says that her FSU representative formed the same opinion regarding being terminated. Ms Ajax says that, taken in context, it should not be concluded that her taking covert recordings demonstrates a propensity to disobey directions. She says that if she were reinstated, she would follow reasonable directions.

[49] Ms Ajax said on a number of occasions, she disputed that what had been provided to her as evidence, could even be classed as evidence. She said she requested to be provided with a list of all the members who were present on the days. She said on a number of occasions, she questioned as to how an account that was open by use by anyone who knew about it and had no details of when or who ordered the coffee could be considered evidence. She said she questioned the independence and motivation of Ms Nichol nominating Ms Ajax as having improperly used the coffee account. 16

[50] Ms Ajax’s evidence is that she told Ms Cardillo, Ms Ryan and then Ms Foster that the only coffee she had requested to be put on the account that was not for a member, was the coffee of 13 March 2020. She said no matter how she explained this, Ms Cardillo and Ms Ryan continued the process of terminating her employment. She said that she felt ‘set up’. 17 She stated that in light of her employment record, she could not comprehend that they failed to take into account her responses, and instead ‘took the word’ of Ms Nichol.

[51] Ms Ajax said that she had never been through a disciplinary procedure and was distraught. She said she responded the best she could have given the circumstances, and while she may have turned to the union for help, she was dissatisfied with the union representatives as they did not provide her with the level of help that she had expected. She stated that this is why she engaged legal representation after the union had lodged her application. 18

[52] Ms Ajax also stated that she was never provided a copy of the CUA investigation and disciplinary policy.

Correspondence issued to Ms Ajax

[53] On 25 June 2020, Ms Ajax was issued with the following letter:

“25 June 2020

Private and Confidential

Lynelle Ajax

By email

Dear Lynelle

Notice to show Cause

As you are aware, CUA is conducting an investigation into the use of the CUA account at Hard Coffee during March, April and May 2020.

The investigation has now been finalised and the purpose of this letter is to advise you of the findings and the outcome.

Findings

The findings of the investigation are as detailed below. In arriving at these findings, CUA has considered all the information available to it, including your written response and those you provided in our meeting on 19 June 2020 Debbie Ryan, Regional Sales Manager and me.

Allegation 1

At the end of March, during April and the start of May 2020 you engaged in conduct that was in breach of CUA’s Fraud and Ethics and Integrity Policy.

This allegation is substantiated. In particular:

(a) Detailed invoices obtained from Hard Coffee coffee orders being placed during a period of National Shutdown when there were no members in the branch. You were also on CXOne calls which meant you were not member facing during the alleged period and as such, there would have been no need to purchase coffees for members.

(b) Given COVID closures and a limit of two people in the branch at any given time, social distancing and the branch being very quiet the use of the coffee account does not match Member traffic for this time.

(c) A signed Statutory Declaration from the manager of the coffee shop states that she was aware that the coffee orders you were making and placing on the CUA account were not for members and where for your own consumption. The declaration further states that the manager advised you that using the account for your own personal use was wrong, but you continued to use the CUA account for personal use.

(d) In November 2019, the then Local Area Manager, Stephen Woodall set the expectation with all team members at the CBD branch that the coffee account at Hard Coffee was to be utilised for members only, not team members.

(e) In March 2020, following an accusation of you using the account to purchase a coffee for friend was made, Melissa Cardillo met with you to discuss this and again, clarified that the account was only to be used for members.

(f) On 17 June 2020 Melissa Cardillo asked you to confirm when the account should be used and what for. You advised that it was to be used for Members only.

(g) In your response dated 21 June 2020 you admit to asking for an incorrectly made coffee that you ordered for a friend on to CUAs account. You again admit to this in your addition response dated 23 June 2020.

(h) It is CUA’s position that this behaviour amounts to theft.

Our concern is that you have demonstrated a serious failure to comply with CUA’s policies and expectation, so much so that we feel we have lost trust and confidence in you. On this basis, CUA requires you to show cause as to why your employment should not be terminated.

You are to provide your response in writing by 9:00am, Monday 29 June 2020. Please email your response to melissa.cardillo@cua.com.au.

You are also required to attend a meeting at Brisbane CBD branch on Monday, 29 June 2020 at 2:00pm. The purpose of the meeting will be to provide you a further opportunity to outline why your employment should not be terminated and to discuss any written response you provide. You are entitled to bring a support person or representative to this meeting.

Suspension

Given the serious nature of the situation, you will be suspended from duty on full pay. During this suspension you are not to attend the workplace (with the exception of attending any meeting as part of the show cause process) or to contact any CUA members, third parties, or internal team members other than myself or a People and Culture representative. As part of the ongoing investigation, we may need to contact you and as such you are required to remain contactable during normal working hours.

Confidentiality

You are directed to keep the details of this matter confidential as far as possible. You may, however, discuss the matter with your support person or representative. Should you fail to follow this lawful direction you may be liable for disciplinary action that may lead to termination of your employment.

Employee Assistance

Please be reminded that the CUA has an Employee Assistance Program (EAP). You are welcome to access this confidential counselling service by calling 1800 808 374.

If you have any questions in relation to this matter, please don’t hesitate to contact me on 0499 222 014.

Yours sincerely,
(signed)
Melissa Cardillo
Local Area Manager
Brisbane CBD
CUA” (original text and emphasis)

[54] On 29 June 2020, Ms Ajax responded as follows:

“Melissa Cardillo
Local Area Manager
Credit Union Australia Ltd

By email only to:

Dear Melissa,

RE: Response to Show Cause

I refer to your letter of 25 June 2020 in which you advise that CUA have substantiated the allegation; and as per your invitation therein, I write to you in response.

The finding of the CUA are difficult to comprehend, I don’t believe that the following facts and circumstances have been considered in the initial decision making.

1. The invoice CUA have obtained from the Hard Coffee has not been particularised with the following information:

a. Dates/times;

b. Names of staff member who places the order;

c. Name of persons/customer who coffee was for;

2. I drink piccolos, not cappuccinos as was stated by Belinda.

3. As part of the Australian Government’s emergency response measures to the Covid-19 outbreak, CUA was declared to be an “essential service” and our doors remained open to the public. We continued to have our members and non-members come into the branch. To suggest that no members came into the branch isn’t correct. I can confidently state that

a. more than 5 people came into the branch in March 2020;

b. more than 16 people came into the branch in April 2020; and

c. more than 3 people came into the branch May 2020.

4. I wasn’t on CXOne called for the entire period, as alleged. It was for only about three weeks and rarely an entire business day. During CXOne calls, I continued to assist in the branch before, in-between and after CXOne calls. Please refer to CXOne logins for evidence of this.

5. I don’t just order coffees for members I personally serve. I endeavour to ask everyone, members and non-members waiting to be served, waiting for other staff members of those in the middle of being served by another staff members; and I will also ask anyone this is accompanying them, including partners, children, parents and friends.

6. Whatever the limit of people allowed in the branch, we still assisted everyone that came to the branch each day. The only difference was, if we were at the branch’s limit, they had to wait outside, and they were offered a coffee outside. When accompanied with others, we requested only people during business come into the branch while the rest waited outside. This allowed other members to come in and be served in accordance with the limits set. I accept that it has been quieter during the initial response to COVID-19, but there were far greater customers who came to the branch than alleged.

7. I have never had a conversation with the Manager of Hard Coffee about the CUA Account, nor have I even been questions by anyone at Hard Coffee about CUA’s account with them.

I have been with CUA for six years following eighteen years of exemplary service within the banking industry. During my time with CUA, I have displayed a very high standard of work and integrity. I am devastated to learn that CUA would think that I would steal from them, and I too take these matters very seriously.

As a single mother of two children, the termination of my employment would cause serious financial hardship and make it extremely difficult to provide for my children. We live a frugal lifestyle, and it is difficult for us to pay the mortgage and make ends meet on the income I am on now. The effect would be considerably detrimental to my children’s mental health, who are still struggling with the divorce. In this economic climate, the idea that I may need to find other employment terrifies me and I fear that I probably won’t find another job before Christmas. I beg you not to dismiss me, and I will be forever grateful if you choose to retain me.

My only wish is to regain the trust and support of CUA.

Sincerely,

Lynelle Ajax.” (original text and emphasis)

[55] On 1 July 2020 at 7:21am, Ms Ajax sent the following email to Ms Foster:

“Good morning Kerryn,

I haven’t heard from Chris yet so I thought I should through in case he hasn’t done so.

Here is a list of my purchases from Hard Coffee for the last 6 months. I’m surprised how much as I try to purchase shopping, food and petrol with cash (that’s why I didn’t really look into my transaction history). So over this period, I would have spent much more than this.

I only ever have one coffee a day, sometimes none and not always at Hard Coffee. I also shout many other people a coffee eg. Friends or family meeting me before work or at lunch and other staff members.

Let me know if you need the reports of the branches activity for March, April and May as I have them also.”

[56] Ms Ajax’s transactions demonstrate the following, noting these are when the transactions are posted to her credit card, not reflecting the actual day of the purchase:

Employment terminated

[57] On 1 July 2020, Ms Ajax was issued with the following termination letter:

“1 July 2020

Private and Confidential

Lynelle Ajax
[address]

Delivered by hand

Dear Lynelle

Termination of Employment

I refer to our meeting on 30 June 2020 where we discussed your response Show Cause as to why your employment with CUA should not be terminated based on your serious misconduct.

CUA has considered all information available, including your written response and the response provided in your meeting on 30 June 2020. We have found that you have engaged in theft which amount to serious misconduct and as such CUA’s trust and confidence in you has been broken. Your actions are in breach of CUA’s Ethics and Integrity in Practice, and do not meet the standards and expectation we have for team members at CUA and are particularly concerning given the Industry in which our business operates.

Considering the circumstances, CUA has made the decision to terminate your employment effective today, 1 July 2020. Whilst we feel this conduct falls within the realm of summary dismissal, we will not be pursuing this. You will be paid 4 weeks’ in lieu of notice along with any outstanding entitlements. Please ensure you return all CUA physical and intellectual property as appropriate.

If you have any questions in relation to this matter, please don’t hesitate to contact me on

0419 161 439. I wish you all the best for your future endeavours.

Yours Sincerely

Debbie Ryan
Regional Sales Manager” (original text and emphasis)

Additional Findings

[58] Ms Ajax says that on 2 July 2020, following the termination meeting, she accessed her private financial email account, which she only accessed intermittently, and found an email with a letter attached titled ‘Additional Findings’, dated 29 June 2020 and signed by Ms Cardillo. Ms Ajax says that she was not given the opportunity to consider or address these additional findings during her employment. The letter is produced below:

“29 June 2020

Private and Confidential

Lynelle Ajax

By email

Dear Lynelle

Additional Findings

I refer to the letter you received dated 25 June 2020 in which you were presented with the findings from investigation CUA has conducted into the use of the CUA account at Hard Coffee during March, April and May 2020. There was an administration error with the letter dated 25 June 2020 in which some of the findings were missing. As such, this letter details the additional findings. These additional findings do not change the decision to proceed to the show cause process. We do apologies for the error.

(i) The invoice from Hard Coffee for the period in questions shows there was a consistent order for an almond milk flat white (known to be another team member’s coffee order) and one other coffee, often a cappuccino but would often be changed. The coffee shop manager confirms that you would often order a cappuccino but that you would sometimes change your order. On 18 June 2020 when given the details of the invoices you confirmed to me that your coffee often changed.

(j) A review of your Mind Maps for the period in questions, you only completed eight (8) Mind Maps in April, only 1 of which was face-to-face. As such, the coffees that you were ordering could not have been for members.

Confidentiality

You are directed to keep the details of this matter confidential as far as possible. You may, however, discuss the matter with your support person or representative. Should you fail to follow this lawful direction you may be liable for disciplinary action that may lead to termination of your employment.

Employee Assistance

Please be reminded that the CUA has an Employee Assistance Program (EAP). You are welcome to access this confidential counselling service by calling 1800 808 374.

If you have any questions in relation to this matter, please don’t hesitate to contact me on 0499 222 014.

Yours sincerely,

Melissa Cardillo
Local Area Manager
Brisbane CBD
CUA” (original text and emphasis)

[59] Ms Ajax says that she did not and would not risk losing her job for the benefit of free coffee.

Ms Ajax’s second statement

[60] Having had the benefit of reviewing the witness statements of CUA’s witnesses, Ms Ajax made her second witness statement. She stated that on occasions when the café staff would accept orders for members, they would not always put the order directly into the till, but would write it on a piece of paper. She said she did not know if or when members’ orders would be put into the till.

[61] Ms Ajax stated that she recalled having a discussion with Ms Nichol in July 2019 regarding the directive not to place personal orders on the CUA account. She complained to Ms Nichol at the time that other CUA branches provide coffee and tea in the lunch rooms, but this branch did not. She recalled that Ms Nichol exclaimed that it was ridiculous.

[62] Ms Ajax denied that she regularly purchased coffees for her consumption in the afternoon.

[63] Ms Ajax stated that she rarely purchased food at Hard Coffee café, and even less so during the lockdown period. She stated that she used the period to focus on healthy eating. Her purchases greater than say, $3.70 or $5.00 demonstrate she was either purchasing food or ‘shouting’ another person a beverage.

[64] Ms Ajax considers that she offered members a coffee or tea more than anybody else in the branch. She often felt bad for the members being served by ‘the boys’ and would offer them a beverage. Further, she said some of them would overhear her asking other members if they would like a beverage and inquire if they could have one.

[65] Ms Ajax confirmed that in April 2020 she purchased most of her beverage purchases from Hard Coffee, as she wished to minimise her contact with people, and it was open. She considered it easier and safer to purchase her beverages from that particular café as it was next to her workplace.

[66] Ms Ajax stated that the transactional figures show the following number of members per day in-branch:

•  March 2020: 988 members, average 45 members per day;

•  April 2020: 526 members, average 26 members per day;

•  May 2020: 551 members, average 27 members per day.

[67] Ms Ajax considers the above numbers are conservative as they don’t take into account individuals making inquiries, nor people accompanying members.

[68] Ms Ajax largely disagreed with Mr Thompson’s evidence. 19

[69] In response to Mr Reus’ evidence, she denied that she would usually have two coffees per day. She reiterated her evidence that if she was seen having a coffee in the afternoon, she was sipping a cold coffee she had purchased in the morning.

[70] In response to Ms Cardillo’s evidence, Ms Ajax stated that she would typically have a piccolo of coffee; one of the reasons she ordered a small beverage is to keep her weight down. However, when she was menstruating she would often have a week of medium cappuccinos because she enjoyed the chocolate and the fatty milk, but she would otherwise try to stick to piccolos.

[71] Ms Ajax denied Ms Cardillo’s assertion that during the meeting of 19 June 2020, she said, “It’s a coffee, for fucks sake.” Her recording states her saying, “….like it’s coffee.”.

[72] Relevant to the security guard posted when the lockdown was in place, Ms Ajax stated that she did not see a people counter being used by the security guard. The security confirmed this with Ms Ajax.

[73] Ms Ajax stated that the coffee account produced by Hard Coffee does not have her preferred beverage; piccolo or medium cappuccino. She stated that she does not drink a flat white.

Ms Ajax’s third statement

[74] Ms Ajax stated that even though she was informed on 30 June 2020 and 1 July 2020 that she was not to make electronic recordings of the conversation, she did so as she didn’t feel she was being believed. She stated that this was the first time she had not followed a management directive. She said that the recordings were made as a result of the situation and the circumstance she found herself in. She declared that if she is to be reinstated she would comply with all lawful and reasonable work requirements.

[75] Relevant to CX-one calls Ms Ajax was involved in during April 2020 and one day in May 2020, Ms Ajax stated that it totalled 33 hours and 33 minutes.

Evidence as to macarons

[76] Ms Ajax’s evidence relevant to macarons purchased by her waxed and waned until she was able to settle on her final evidence in a statement provided on 27 November 2020, following the hearing.

[77] Ms Ajax states that she requested and relied on her HSBC transactions listings for the date 12 June 2020. However, she also gave evidence as to purchases made on 11 June 2020. Ms Ajax recalls that on 11 June 2020, she was going to Le Bon Choix after having lunch with her partner. She recalls walking him back to his office and discussing purchasing macarons on the way back to work to bring to the Chermside office to share the next day. She states that she did do this and purchased macarons at Le Bon Choix on her way back to work. She states she then took them home that afternoon and brought them in the next morning to share at the CUA Chermside Branch.

[78] Ms Ajax states that on the above evidence and recollection, she is certain that the 11 June 2020 Le Bon Choix purchase was the purchase of macarons she took to share at the CUA Chermside Branch on 12 June 2020. She states, “I did not share them with Belinda”.

[79] Ms Ajax’s evidence is that she has researched all of her bank statements and messages, trying to find any other information to ‘ascertain the date’ in relation to the allegation by Ms Nichol. Ms Ajax states that apart from the macaron purchase of 11 June 2020, she recalled that within the last year she made one other macaron purchase.

[80] As to offering Ms Nichol a macaron, Ms Ajax’s further evidence is that she recalls purchasing the macarons and recalls offering Ms Nichol a macaron. She said that she also recalls the conversation that followed, and in this regard, she relies on her earlier evidence that she refused Ms Nichol’s offer of a free coffee, and she paid for her coffee.

[81] Ms Ajax confirms that she has researched her transaction records, and she states that she could not find anything that would ‘establish the date’ however she ‘knows’ that it was well before May 2020 as she did not purchase macarons from Le Bon Choix in May 2020. She did not say how it is she knows this. Ms Ajax believes the relevant date was some time before March 2020, and “may well have been last year” (being 2019). She states that the only record she can rely on is that she “cannot find another Le Bon Choix transactions (sic) on any of [her] accounts history”, which she says means she would have paid cash and therefore would have been before the Covid shutdown.

[82] The banking information from HSBC, produced by way of an order of the Commission demonstrates that Ms Ajax made a purchase of coffee from Hard Coffee for an amount of $5.00 four hours earlier than the purchase of the box of macarons from Le Bon Choix the same day.

Oral evidence given at the hearing

[83] In evidence given during the hearing, Ms Ajax stated that it was “50/50” to have a second coffee during the day. She said that she doesn’t count.

[84] She stated that she ‘never’ drinks coffee with Ms AB. She considered that she was friends with all of her colleagues.

[85] Regarding the incident on 13 March 2020 where she did put a coffee on the CUA account, she stated that she didn’t think it was a big issue. The young, new barista was flustered, and Ms Ajax said that she wanted to solve the problem. She stated, in evidence, “I’m a problem solver”.

[86] Ms Ajax accepted that counter transactions in the branch are done quite quickly; those customers would not be offered a beverage. She accepted that the longer transactions during the lockdown period were significantly reduced. She could not recall how many of the longer conversations she had with members in April 2020.

[87] Ms Ajax stated that she cannot recall who she offered coffee to during the relevant period, but she did offer them to her customers and customers within the branch and waiting outside.

[88] Ms Ajax stated that she has never ordered Ms AB a coffee with almond milk. She said, “I don’t know her order. I’ve bought her a flat white and skinny. She’s never asked me for an almond milk.”

[89] Ms Ajax conceded that the statutory declaration of Ms Nichol was given to her FSU representative during the CUA investigation, but it was not provided to her.

[90] Ms Ajax conceded that the show cause response sent on her behalf to CUA says that she does not drink cappuccinos, and that is not correct as she does drink cappuccinos. I understand Ms Ajax’s evidence is that this was prepared by the FSU on her behalf.

[91] Ms Ajax stated that she has lost count of the number of jobs she has looked for since being dismissed.

[92] In re-examination, Ms Ajax stated that it would be very rare to have two cups of coffee at work. She said that she generally has a coffee with family or friends before work.

[93] She accepted that she has purchased Ms AB a coffee.

Evidence of Ms AB

[94] Ms AB stated that she was aware of the Hard Coffee account held by CUA, as did potentially hundreds of former and present employees of CUA, and that this account may have in the past been used for staff to purchase a single coffee each day.

[95] Ms AB stated that she and Ms Ajax were not “huge coffee drinkers”, 20 in that they did not necessarily get a coffee each day of work. She stated that Ms Ajax would often drink coffee at home, and Ms Ajax would never exceed one coffee per day.

[96] Ms AB agrees with Ms Ajax’s statement that a piccolo café latte is Ms Ajax’s preferred coffee order. She said that when they would get a coffee, they would often order coffee together, and Ms Ajax would normally pay in cash. Ms AB confirms that she normally drinks almond flat whites, or regular milk flat whites.

[97] Around September 2019, Mr Woodall directed that staff were to stop using the coffee account for personal use. She stated that she and Ms Ajax had never used the account for personal use anyway.

[98] Ms AB agrees that during COVID-19 lockdowns, and as the pandemic generally slowed city foot traffic, the Brisbane CUA branch experienced a reduction in foot traffic. However, she says that she and Ms Ajax still regularly provided coffees to customers waiting in lines and for appointments, up until her termination in July 2020.

[99] On 15 May 2020, Ms AB overheard a conversation between Ms Cardillo, Mr Reus and Mr Thompson, wherein Ms Cardillo said:

“if you can find me two new good salespeople then I will… but we really like [Ms AB] because makes us laugh…” 21

[100] Ms AB interpreted this conversation to be about termination of her and Ms Ajax’s employment.

[101] Ms AB attests to being subject to a parallel investigation, disciplinary process, and termination outcome to that stated by Ms Ajax. Both were terminated on 1 July 2020.

[102] In a supplementary witness statement, Ms AB stated that she had never seen Ms Ajax drink a small cappuccino; only a medium cappuccino. Ms AB denied putting personal coffees on the account, and denied witnessing Ms Ajax putting personal coffees on the account.

[103] Ms AB denied Ms Nichol ever warned her about putting personal coffees on the CUA account.

[104] Ms AB stated that she worked with Ms Ajax for over three years and she rarely saw Ms Ajax have a coffee in the afternoon.

[105] Ms AB stated that while she would order coffee with almond milk, she often changed the milk ordered.

Oral evidence given at the hearing

[106] In evidence given during the hearing, Ms AB sated that her preferred coffee is a flat white with almond milk. She also does drink full cream and skim milk. She started doing F45 classes in October 2019 and attempted to drink almond milk more often.

[107] Ms AB stated that she and Ms Ajax would drink coffee together, before work and at work. She said that they would shout each other orders. She has ordered flat whites.

[108] She said that if they were drinking coffees before work, it would be together. They used to sit near each other at work and would finish their coffee while at work.

[109] Ms AB stated that she and Ms Ajax used to work together at the CUA Indooroopilly branch. Ms Ajax recently told Ms AB that she drinks coffee at home.

[110] Ms AB agreed that there was a decrease in long appointments during the lockdown period. She agreed that there were a lot less customers in the branch. She estimates that 5-10 of the people she offered a beverage to accepted the offer.

Evidence of Ms Nichol

[111] Ms Nichol provided a statutory declaration, signed 24 June 2020, and a witness statement, signed 21 September 2020.

[112] Ms Nichol has worked at Hard Coffee since 28 February 2017, and she has worked as the manager since June 2018. Hard Coffee is located next to the Brisbane CUA branch, and subsequently, Ms Nichol has come to know most, if not all, Brisbane CUA branch employees through serving them coffee. Specifically, Ms Nichol knows Ms Ajax and Ms AB as customers.

[113] Ms Nichol understands the coffee account to be for the use of CUA customers. It is settled monthly, and only small coffees or teas can be put on the account. For each purchase a 70-cent discount applies, and no food can be put on the account. Ms Nichol agrees that when she first started at Hard Coffee, CUA staff would use the account for personal drinks, but this arrangement ceased at some point.

[114] Ms Nichol says that she concluded that Ms Ajax was using the account for herself because she was a regular customer, and she would normally order a small cappuccino or a piccolo. This preference was so whether she was ordering just coffees, which she charged to the account, or coffee and food, which she paid for with cash around 80% of the time.

[115] She stated that to the best of her knowledge, Ms Ajax was predominantly the only person who would order coffee on the account. Ms Nichol concluded that during the lockdown period, Ms Ajax and Ms AB were using the CUA account daily for themselves.

[116] Ms Nichol’s evidence is that in early April 2020, Ms AB was in the café and Ms Nichol warned her that she was likely to ‘get caught’ using the CUA account. The following day Ms Ajax was in the café and she gave to her the same warning.

[117] Adding to her suspicion that Ms AB and Ms Ajax were using the account for their own coffees, Ms Nichol observed that there were very few people in the city. She noted that the CUA branch did not have many customers. Other CUA employees mentioned that customer numbers were drastically down while placing personal orders. Ms Nichol had good oversight of foot traffic for the full day as she was running Hard Coffee by herself during the COVID lockdown period.

[118] It is Ms Nichol’s evidence that she warned Ms Ajax and Ms AB that they could get into trouble as she considered them both to be her friend. She recalled that Ms AB would sometimes watch the café for her during the lockdown period so that Ms Nichol could go to the bathroom.

[119] Ms Nichol noted that the other CUA staff members did not make orders on the account in 2020.

[120] Ms Nichol stated that after she warned both of the women, they did make some of their own purchases using their own money, but occasionally they would make what she considered to be a personal coffee purchase on the CUA account.

[121] Ms Nichol recounts an occasion in May 2020 where Ms Ajax brought her a macaron. She states the following conversation occurred:

Ms Nichol: Thank you let me exchange you a coffee.

Ms Ajax: Oh no, it’s OK, just put it on the CUA account.

Ms Nichol: Oh no, it’s OK, I’ll just make it for you.

[122] Ms Nichol’s evidence is that she did not put the coffee on the CUA account as she did not want Ms Ajax to get into trouble, and she had only just warned her in April 2020. She stated that she gave her the coffee and did not charge her for it.

[123] Ms Nichol says that in early June 2020, Ms Cardillo asks for detailed invoices for the coffee account back to the start of the year. At this time, Ms Nichol informed Ms Cardillo that Ms Ajax and Ms AB were making personal use of the account. Ms Nichol prepared and provided the detailed invoices as requested. Further, she provided a statutory declaration dated 24 June 2020, produced below:

“In late March 2020 and during April 2020 I can confirm that Lynelle Ajax and Ms AB, CUA employees, were placing coffee orders for themselves on the CUA account. Early in April I advised them that using the account for their own purchases was something they should consider stopping. Firstly, as it was wrong and secondly, that the COVID-19 shutdown would easily identify inappropriate use as there were no customers coming in to the branch.

I spoke to Ms AB, she thanked me for the advice and she left the store, then Lynelle came in and I reconfirmed that their conduct was inappropriate and would be easily discovered. They continued to use the account for personal use up until the end of April, early May and then they recommenced paying for their coffees.

When Melissa Cardillo, Local Area Manager CUA, came in at the start of June to ask about the CUA Coffee account and statements back to the start of the year I advised her of what had been happening with Lynelle and Ms AB. We have had several conversations regarding itemised accounts and recapping what had happened during June 2020. I was able to provide her with a break down of the coffee orders each month along with each invoice since January. I was also able to confirm that Ms AB orders a Flat White on Almond milk and that Lynelle a Cappacino, although her order can change.

I have no doubt that there were coffees being ordered by Lynelle and Ms AB for their own use.” (errors in original)

Oral evidence given at the hearing

[124] Ms Nichol stated that for the majority of April 2020, she was the only staff member working at the café. She did not serve food during this time. By mid-May 2020, one staff member returned.

[125] Ms Nichol disagreed that most often Ms Ajax would order a piccolo. She stated that she regularly ordered cappuccinos. She said that until 2019 she ordered medium, and she disagrees that she only ordered medium cappuccinos.

[126] It is Ms Nichol’s evidence that all of the small cappuccinos on the invoices were for Ms Ajax. She stated that if the invoice says skim milk, it could have been an error because the button is next to the CUA discount.

[127] Ms Nichol agreed that during April 2020 she took coffee orders into the branch, but not all of the time. She said if she had taken an order in and handed it to Ms Ajax, others would have noticed it.

[128] As to knowingly providing to Ms Ajax and Ms AB a personal coffee when it was not permitted, Ms Nichol stated that if they wanted a coffee, she was not going to deny them a coffee. She said that it was not her job, and it has nothing to do with her.

[129] Regarding the macaron conversation, she rejects Ms Ajax’s version and confirms her own version. She agreed that it could have occurred in June 2020. She stated that she gave Ms Ajax a piccolo in exchange for a macaron. She is certain it was a piccolo as she remembers the interaction.

[130] Ms Nichol needed to depart the hearing to attend to the café; she resumed giving evidence the next day. She stated that Ms Cardillo does not purchase coffee. She stated that she could not recall the type of milk Ms Ajax orders. While she typically makes 400-700 coffees per day, during the lockdown period she was making perhaps 100 coffees per day.

[131] On reflection, she thinks that Ms Ajax takes full cream milk.

[132] Regarding the statutory declaration completed by her, she said that it was not her idea to complete it. She stated that she did it at home, typed it up and then took it in to swear it.

[133] Ms Nichol stated that Ms Ajax would only occasionally order an afternoon coffee. When considering the consolidated list of coffees purchased on the account in the relevant months, Ms Nichol conceded that the account was not used on a daily basis. The consolidated list of coffees purchased is as follows:

[134] I questioned Ms Nichol as to the various types of beverages ordered by customers. She named 16 beverages including the following:

•  Espresso

•  Ristretto

•  Short macchiato

•  Long macchiato

•  Piccolo

•  Flat white

•  Cappuccino

•  Mocha

•  Long black

•  Ice coffee

•  Ice mocha

•  Hot chocolate

[135] During cross-examination, Ms Nichol gave evidence of the cost of various types of beverages:

Evidence of Mr Thompson

[136] Mr Thompson started with CUA in August 2019. He stated that at no stage during his employment have staff been allowed to charge personal drinks to the Hard Coffee account.

[137] Mr Thompson has noticed that Ms Ajax “always” has a piccolo in the morning, something he notes due to the noticeably small cup piccolos come in. He stated that after he returned from leave in April 2020, by late April 2020, and early May 2020, he noticed Ms Ajax with a larger coffee in her hand, from Hard Coffee. Whenever Ms Ajax had lunch with her partner, he noticed she had a different brand of coffee cup.

[138] Mr Thompson remembers a conversation he had separately with Ms Ajax and Ms AB, where each of the women in their separate conversation with him said that as long as he had a member of CUA with him, he could charge a coffee to the CUA account. Mr Thompson stated that each of these conversations stuck in his mind because it was inconsistent with his memory of Mr Woodall’s direction that staff are not to use the account for personal use.

[139] Mr Thompson’s memory of the COVID shutdown period between March to May 2020 is that he and Mr Reus worked on the front counter with Ms Sally Bucknell (relief manager while Ms Cardillo was on leave), while Ms Ajax and Ms AB were taking inbound customer calls in the back office. During this time, foot traffic in the branch averaged around 8-15 members per day, and he does not recall Ms Ajax personally serving any such members. Further, except for one instance of Ms Ajax ordering a customer a long black, he cannot recall any member being provided a complimentary coffee.

[140] Mr Thompson’s coffee order of choice is a long black with 4-5 shots. He does not believe Mr Reus was responsible for the coffee account use as he did not note Mr Reus to be drinking coffee while the two were at the front counter. Of further note, he believes Mr Reus only has a single coffee per day, prior to work.

[141] It is Mr Thompson’s belief that Ms Ajax and Ms AB were charging the Hard Coffee account for their personal use.

[142] Following Ms Ajax’s dismissal, and as a result of this application having been made, Mr Thompson was interviewed by Ms Cardillo on 21 July 2020. His response is as follows:

“Did you have any conversations with Lynelle about the use of the CUA coffee account held with Hard Coffee?

Approximately August 2019 when I first started, both Lynelle Ajax and Ms AB in separate conversations on a number of occasions that you could occasionally order yourself a coffee when ordering for a member. The LAM, Stephen Woodall has made it clear the account was for member use only to all staff so this was contradictory.

It was acknowledged by Lynelle that the use of the account for staff had been taken away earlier in the year as the staff had been ordering too many coffees.

Did you observe Lynelle ordering coffees during COVID lockdown for members who were in the branch.

Not all except for 1 long black for a member in the month of March, non in April while I was in the branch.

Did you order any coffees for members in March or April 2020

I don’t remember a single member ordering a coffee during lock down and serving less than 15 people a day.

How much time did Lynelle spend on the counter in April.

None, she was in the office for almost the entire day with the CUAD calls directed to the branch. When she did come out she wasn’t interacting with members but chatting with the team.

What made you think Lynelle was using the tab?

It was a general belief that Lynelle was using the tab with the coffee shop because they told me when I started it was something you could get away with.

Do you have any other observations to offer?

When I viewed the account statement when you were investigating the matter I identified that my regular coffee, which is a long black in a keeper cup, was on the tab with 2 other coffees. I recollect Lynelle offering to shout me that day and I believe she had paid for it herself. I subsequently returned the favour and bought her a coffee under the impression my coffee was purchased by her.” (original text and emphasis)

Oral evidence given at the hearing

[143] In evidence given during the hearing, Mr Thompson stated that one of the orders on the CUA account appears to him to be an order for him. The order is a long black in a keep cup. He recalled that Ms Ajax offered to buy him a long black, and he provided to her his keep cup. He has assumed that she had paid for his coffee with her own money, and accordingly, he shouted Ms Ajax a coffee a few days later.

Evidence of Mr Natale

[144] Following Ms Ajax’s dismissal, and as a result of this application having been made, Mr Natale was interviewed by Ms Cardillo on 28 July 2020. His response is as follows:

“Would you remember the type of coffee that Lynelle drank:

She used to drink a Piccolo in the morning during the morning meeting.

Would you remember the type of coffee that Ms AB drank?

It was a coffee with Almond Milk, she used to talk about the type of milk a lot.

Do you remember the frequency during the weeks that they would have coffee?

Every day and sometimes more than once a day.

When they did have a coffee was it always Hard Coffee?

Always Hard Coffee.” (original text)

Evidence of Ms Cardillo

[145] Ms Cardillo has been employed as the local area manager at the Brisbane CBD branch since January 2020 – though she has been with CUA since late 2010. Ms Ajax directly reported to Ms Cardillo.

[146] CBD Branch employees were allowed to use the Hard Coffee account for personal use up until November 2019. The account has since been exclusively held for CUA employees to provide complimentary coffees to members.

[147] Ms Cardillo observed that Ms Ajax usually drank piccolo lattes. Ms Cardillo observed the “tiny” cups that piccolos come in, and she considered that Ms Ajax would make a ‘big deal’ about drinking piccolos. She observed that Ms Ajax would sometimes have a larger coffee, such as a cappuccino in the afternoon. She said it was often enough for her to notice.

[148] Ms Cardillo noticed her staff’s coffee habits because she was surprised at how much the staff were spending on coffee. Ms Cardillo was displeased with the coffee cups around the branch and instituted a new policy of not drinking while in front of members. She counselled Mr Reus, Ms AB and possibly Ms Ajax on the amount of money they were spending on coffee as an outgoing expense.

[149] Ms Cardillo largely agrees with Ms Ajax’s account of the March 2020 coffee incident regarding the wrong order. Mr Reus approached her and said, “I just witnessed Lynelle putting a coffee on the CUA account. She is out there now having coffee with her friends.”

[150] Ms Cardillo contacted Ms Ryan to discuss the coffee account and invoicing. Ms Ryan said to Ms Cardillo, “We are going to need to look into this.”

[151] After a marketing event was held outside of the branch, and staff returned inside, Ms Ajax confronted Mr Natale and said to him, “I didn’t do it, I’m an honest person, how can you accuse me of doing this, I’m very professional.” After Mr Reus apologised, Ms Ajax said, “The only reason why I did it was because I didn’t want the waitress to get in trouble, so I told her to put it on the account and I gave the coffee to Carlos.”

[152] Ms Cardillo said that this incident stood out for her because she recalls how emotional Ms Ajax was at the start, denying that she put a coffee on the account. Ms Cardillo did not immediately investigate the incident as Ms Ajax was emotional and they had just finished a marketing exercise. She wanted time to investigate the use of the account.

[153] Ms Cardillo’s recollection of the conversation with Mr Reus, that Ms AB overheard, is consistent with Mr Reus’ statement. Ms Cardillo adds that she approached Ms AB later in the day to apologise for any offence caused, and to assure her that it wasn’t about her. Ms Cardillo’s evidence is that it always good to have leads for good sales people, but she wasn’t looking to terminate and replace Ms Ajax and Ms AB.

[154] Ms Cardillo was on leave during April and May 2020 and was reminded by Ms Ryan on 29 May 2020 to investigate the use of the account. On 1 June 2020, Ms Cardillo went into Hard Coffee mid-morning, after the early morning rush and said to Ms Nichol, “Is there any chance I [can] get the invoices for the account going back to the start of the year?” In response, Ms Nichol said, “I warned them, I told them that during COVID it would be obvious that they were using the account”. 22 This conversation was interrupted by an influx of customers in the café and Ms Cardillo left. She returned to the branch and conveyed that she was concerned about staff use of the coffee account. She asked Mr Reus, Mr Seeto and Mr Thompson whether they had charged the account for personal use. All three denied ever having done so. At this time Ms AB was on leave and Ms Ajax was not in the branch.

[155] Ms Cardillo says she resumed her request for the coffee accounts with Ms Nichol over the next few days. There was some difficulty in obtaining them as the owner had carriage of the accounting and was overseas. During Ms Cardillo’s conversations with Ms Nichol, there was discussion as to who was using the account for personal use. Ms Nichol was not straightforward with Ms Nichol, simply saying it was two people. Ms Cardillo said, “I need to know who it is you are accusing.” Ms Nichol replied, “It’s the girls.”

[156] Ms Nichol informed Ms Cardillo that Ms Ajax and Ms AB were buying coffees for themselves. She said that “the boys” always pay for their coffees, as did the relief manager, Ms Bucknell.

[157] On 12 June 2020, Ms Cardillo received the invoices. As the invoices did not contain sufficient detail, Ms Cardillo requested itemised detail which was then provided to her on 16 June 2020.

[158] On 17 June 2020, at Ms Ryan’s suggestion, Ms Cardillo held a whole team meeting to discuss the coffee account misuse, and she invited any staff to come forward with concerns. Mr Seeto, Mr Thompson and Mr Natale all approached Ms Cardillo to reiterate that they had not misused the account. Neither Ms Ajax nor Ms AB said anything on the topic.

[159] On 19 June 2020, Ms Cardillo held a meeting with Ms AB at 11:15am. After reading the letter, Mr Cardillo’s evidence is that Ms AB said, “It’s just coffee?” Ms Cardillo replied, “It is theft.” Following this meeting, Ms AB took her bag and left.

[160] Ms Ajax’s meeting was scheduled for 11:30am but did she did not attend until 1:00pm. Ms Cardillo’s evidence is that following the meeting, which she did not know was covertly recorded by Ms Ajax, Ms Ajax said to her, “It’s coffee, for fucks sake.”

[161] Ms Cardillo received an email from Ms Ajax on 21 June 2020, however she considered that it did not address the issue. On 22 June 2020, Ms Cardillo requested Ms Ajax address the allegations.

[162] On 23 June 2020, Ms Ajax responded. Ms Cardillo considered one of her explanations to be odd, where it was suggested that there were lines of people waiting outside of the branch. Ms Cardillo’s evidence is that during the COVID shutdown period the branch had a security guard keep a log of foot traffic going in and out of the branch. Ms Cardillo deduced that on an average day around 20 members were in the branch, which equates to 3 an hour over 7.5 hours of service.

[163] On 30 June 2020, Ms Cardillo sent an email to the security guard who had been stationed at the branch during the relevant period. The emails are produced below:

Ms Cardillo: …we got some issues that I am dealing with in the branch and wondered if you could assist me with some questions around the time you were looking after the door?

•  Did we ever have a line up of members?

•  If so, was this a regular occurrence?

•  Did Lynelle or [Ms AB] ever come out and assist with the line (if there was one) and offer to get members a coffee from the store next door?

……

……

Guard: …..there was members waiting at some points but waiting outside in line there was only ever a maximum of 2 or 3 people.

It wasn’t very regular.

I saw [Ms AB] and Lynelle come out and tell people that it wouldn’t be long but they didn’t offer coffee to the people outside. I know they did offer coffee to people waiting for appointments for loans and such though.

Ms Cardillo: I know I am testing your memory, were there many people in April, before I came back, who came in for loans? During the worst of the Covid lock down?

Guard: …..I can’t remember exactly but I believe there would’ve been about 4 or 5 people that came in to have a loan conversation.

[164] In her statement, Ms Cardillo notes the following reasons for leading her to conclude that Ms Ajax was misusing the coffee account:

“a) When I started investigating the coffee account usage, I did not expect to find anything untoward, it was more about putting in place some controls and management.

b) When Ms Nichol told me that there had been misuse, I was surprised.

c) After Ms Nichols (sic) identified that it was the Applicant (Ms Ajax) and [Ms AB] solely using the account, I looked for data to substantiate the claim.

d) After receiving itemised account and noting that a Flat White on Almond milk and a cappuccino/flat white consistently ordered together it supported the allegation. Especially as the Flat White on Almond milk was Ms AB’s coffee order.

e) Each time I interacted with the Applicant, she never really addressed the allegations, always trying to divert from addressing the allegations about her history and professionalism, and not commenting on the evidence we held.

f) In the Applicant’s written responses, the Applicant stated there were lines outside the branch and that she was helping manage the line. When I asked the security guard via email if he could recall lines or the Applicant offering them coffee, he confirmed there were no lines and the Applicant never interacted with members waiting….

g) The Applicant was also on project during the April/May period and in an office for most of the day taking inbound calls. This does not marry with the testimony of interacting and servicing members when there were three (3) other team members looking after the foot traffic, which was heavily reduced.

h) I also reviewed the Applicant’s completion of Mind Maps for the period during the Covid-19 shutdown… only 1 of the 8 Mind Maps completed by the Applicant was (for a) face to face (customer interaction).

i) The Applicant’s main argument was always we couldn’t prove anything and that we couldn’t rely on the testimony of Ms Nichol. The Applicant did not state that she never used the account for personal use.

j) I found that Ms Nichol showed integrity and honesty in all my interactions with her and came across as a (sic) credible with no reason to not tell the truth.

k) I have no doubt that there was conscious misuse of the coffee account and I took the decision to terminate the Applicant using all the evidence to validate the final outcome.” 23

Oral evidence given at the hearing

[165] In evidence given during the hearing, Ms Cardillo stated that where there are lines drawn on the invoices, they reflect what appears to be a day’s order, noting the 70-cent discount which was sometimes applied. She concedes that it cannot be known for certain if the coffees on the invoices are correct.

[166] Ms Cardillo accepted that the same allegations put to Ms AB were put to Ms Ajax. CUA did not put it to Ms Ajax that she acted in enterprise with Ms AB.

[167] Ms Cardillo accepted that the May 2020 invoice was not provided to Ms Ajax or Ms AB.

[168] In cross-examination, it was put to Ms Cardillo that Ms Ajax drinks a medium cappuccino, not a small, as ordered on the account. Ms Cardillo responded that if you were getting a drink for free, the size of it is unlikely to matter.

[169] Ms Cardillo accepted that the foot traffic did not constitute a significant drop, however she said the transactions conducted in-branch were faster during the lockdown period. Coffees were not typically required during this period as there were not as many sit-down consultations with members.

[170] Regarding Ms Nichol’s statutory declaration of 24 June 2020, Ms Cardillo said that she helped Ms Nichol prepare it; it was her idea.

[171] In re-examination, Ms Cardillo stated that she always requires a talent pool of potential employees and she prefers if her team is able to refer an outside person, rather than having to go to the market.

Evidence of Mr Reus

[172] Mr Reus started with CUA on 20 August 2019; he has never known the Hard Coffee account to be for personal use. He recalls Mr Woodall directing all staff at a team meeting that the account was for members only. He remembers Ms Ajax explaining that personal use of the account was previously acceptable.

[173] Mr Reus observed Ms Ajax drinking piccolo lattes in the morning, which he says was obvious because of the small cup, and a larger sized coffee in the afternoon. While occasionally her cups had different branding, most of the time they were Hard Coffee cups.

[174] Mr Reus says that Ms Ajax would normally arrive 5-10 minutes past 8:30 am, otherwise she would arrive just on time at 8:30 am. He was able to note this as he lived within walking distance of the CUA branch and would often wait for the doors to be opened from 8:00 am while sitting next door at Hard Coffee.

[175] Mr Reus says that he had a conversation with Ms Cardillo during the start of 2020 wherein they discussed a previous employee of CUA who was then working at another bank. Mr Reus commented that it would be good to have another good salesperson at their branch. Ms Cardillo commented that it would be good to have another Mr Reus – but nothing came of the conversation. Ms Cardillo did not pursue recruiting the person. Mr Reus remembers Ms AB saying something to them, but he does not remember what.

[176] During the COVID lockdown period, being March 2020 to May 2020, Mr Reus remembers that he and Mr Thompson worked on the counter at the branch, while Ms Ajax and Ms AB worked in the back office. He remembers that foot traffic was very quiet; he does not remember any members being bought coffees. He does not recall either Ms Ajax or Ms AB serving any customers in person, other than an occasional withdrawal or deposit.

[177] Following Ms Ajax’s dismissal, and as a result of this application having been made, Mr Reus was interviewed by Ms Cardillo on 21 July 2020. His response is as follows:

“Did you have any conversations with Lynelle about the use of the CUA coffee account held with Hard Coffee?

When I first started at CUA in August 2019 where we had a team meeting, including Lynelle, it was specified by LAM Stephen Woodall the Hard Coffee account was for CUA members only. Previous to this meeting Lynelle had told me there was an account that we could only use for members. I was very clear about the intended use of the account.

Did you observe Lynelle ordering coffees during COVID lockdown for members who were in the branch.

No, there were very few members in the branch and non that I recall having coffee.

Did you order any coffees for members in March or April 2020

I did not order any coffees for members during that time period as there were so few members visiting the branch.

How much time did Lynelle spend on the counter in April.

Minimal time on the counter, maybe between 1-2 hours a day to assist with lunches. Most of her time was in the office taking CXOne calls.

What made you think Lynelle was using the tab?

I had witnessed her putting a coffee on the account on the 16th of March in the morning prior to the branch opening. It was delivered to Lynelle’s table where she was having coffee with her friends. It made me think this was something she did regularly as she was so comfortable telling the staff member to put it on the tab.

Do you have any other observations to offer?

When Lynelle was confronted with ordering the coffee on the tab later in the day she was very aggressive and confrontational. She took the issue from using the account to her being a single mother and how hard it is for her to work full time. At this point she denied she put the coffee on the tab. At some point later in the afternoon she clarified she did put the coffee on the account but she was trying to help the Hard Coffee team member as they had made a mistake with the order.” (original text)

Oral evidence given at the hearing

[178] In evidence given during the hearing, Mr Reus recalled the incident of 13 March 2020 where Ms Ajax accused him of starting rumours about her. He stated that she was very aggressive towards him and it was not her usual demeanour. He apologised for upsetting her. His evidence is that she denied putting a coffee on the CUA account, yet after the meeting she said she had put it on the CUA account because the waiter was flustered.

[179] Ms Reus recalled that Ms Ajax would regularly drink a piccolo each morning, and then very regularly would have a secondary coffee later in the day. He stated that it was not every day, but it was quite often.

Evidence of Mr Seeto

[180] Mr Seeto has worked for CUA since February 2019. In that time, he has observed that Ms Ajax usually drinks a piccolo in the morning, and another piccolo in the afternoon – though the afternoon drink can differ.

[181] Mr Seeto says he has never used the coffee account for personal consumption, but prior to the COVID shutdown period he would occasionally (once per fortnight) order a coffee for a member. During the shutdown period he has not charged anything to the account.

[182] Mr Seeto recalls an interaction with Ms Nichol sometime between March and May 2020 wherein he ordered himself a coffee. When he presented his bank card for payment, the following occurred:

Ms Nichol: Oh, you are going to pay for it.

Mr Seeto: Yes, this one is for me.

Ms Nichol: Oh, OK.

Mr Seeto: What’s that about?

Ms Nichol: Oh, nothing.

[183] Following Ms Ajax’s dismissal, and as a result of this application having been made, Mr Seeto was interviewed by Ms Cardillo on 22 July 2020. His response is as follows:

“Did you have any conversations with Lynelle about the use of the CUA coffee account held with Hard Coffee?

Not with Lynelle directions. I was aware that the account was for member use only and that it was for longer sit down appointments mianly.

Did you observe Lynelle ordering coffees during Covid lockdown for members who were in the branch.

I did not see her interacting with members at any stage during Covid lockdown, she was always in the office taking calls.

Did you order any coffees for members in March or April 2020

I only ordered coffee for my home loan member in mid March, there were no others I ordered.

How much time did Lynelle spend on the counter in April.

Rare occurrence, she was in the office for most of the day doing calls.

What made you think Lynelle was using the tab?

Belinda, the coffee shop manager, made a remark about me ordered a coffee in April and ensuring that I paid for it. I got a feeling some of the team were not doing the right thing with the account from this interaction.

Do you have any other observations to offer?

During this period I was doing the Home Lending relief and had a few face to face interviews where no coffees were ordered by myself or any other team members.” (original text and emphasis)

Evidence of Ms Ryan

[184] Ms Ryan has been the Regional Sales Manager for Brisbane North Region at CUA since 2013. Part of her role includes making final determinations on whether an employee should be terminated for misconduct.

[185] Ms Ryan’s evidence of the investigation process, and the factors that lead to the decision to terminate Ms Ajax’s employment, is broadly consistent with that of Ms Cardillo’s, as previously set out. Distinctively, Ms Ryan states that Ms Ajax sought to implicate Hard Coffee as being responsible for fabricating invoices for the café’s financial gain.

[186] Additionally, Ms Ryan says that the veracity of the investigation is evidenced by the time taken to conduct the process, the breadth of the evidence considered, and the opportunities given to Ms Ajax to respond. Ms Ryan refutes any suggestion that the decision was pre-determined and in fact states that she deliberated sincerely, consulting with her manager, Ms Cardillo and the People and Culture team extensively prior to finalising the decision.

[187] Ms Ryan says that her decision to terminate Ms Ajax’s employment was made because, on the balance of the evidence provided through the investigation process, she believed that Ms Ajax and Ms AB had been using the coffee account for personal gain, which she considered to be incompatible with the Respondent continuing to have trust and confidence in Ms Ajax. Ms Ryan cited Ms Ajax’s secrete recordings during the investigation, her attempts to divert, downplay and pass blame, and states she cannot see how an ongoing ‘trust filled’ work relationship, requiring honesty and integrity between all persons, could continue.

Oral evidence given at the hearing

[188] In evidence given during the hearing, it was put to Ms Ryan that Ms Cardillo had, at one point, failed to self-report a safe being left open. Ms Ryan responded that whilst she understood the safe was left open, it was in a locked area, and she considered that it did not necessarily need to be reported. She said she certainly would want to know what the leader was doing about such a scenario.

[189] Regarding the volume of members in the branch during the relevant period, Ms Ryan conceded that it was incorrect to say that there were “no” members in the branch. She conceded that there were members, but she considered that they were not requesting coffee. Relevant to the calls Ms Ajax was involved in, Ms Ryan accepted that it was only 33 hours of calls over the month, but there was also training required.

[190] Ms Ryan accepted that one of the coffees in March 2020, noted as a dine-in was for her. She noted that she had a business meeting, and it is therefore an acceptable use of the CUA account.

Submissions of Ms Ajax

[191] Ms Ajax submitted that her termination was harsh, unjust, and unreasonable as it was procedurally problematic, CUA did not give proper weight to Ms Ajax’s evidence or statements, or her personal circumstances, and was decided without a valid reason.

Valid reason

[192] As CUA relies on misconduct as substantiating the termination, Ms Ajax says that the Commission must find that the misconduct did in fact occur, 24 and that the applicable standard is the Brigginshaw Standard25. Ms Ajax says that the evidence is incapable of meeting the test in Brigginshaw and that the Commission cannot find that the conduct in fact occurred.

[193] Ms Ajax says that she should be exonerated by a proper consideration of her bank accounts, and the purported inaccuracies and anomalies in CUA’s accounts.

[194] In relation to whether CUA can meet the Brigginshaw standard, Ms Ajax says that CUA failed to reconcile the use of the Hard Coffee account until 17 June 2020, after the alleged misconduct. Ms Ajax says that there is no hard proof that she misappropriated the coffee account, that CUA’s findings are based on the statements of Ms Nichol, and the propensity evidence of what type of coffees Ms Ajax would tend to order. Ms Ajax says that this cobbles up to be “inexact proofs, indefinite testimony, (and) indirect inferences”, 26 which is incapable of satisfying the Brigginshaw standard – or any standard. It follows that Ms Ajax says CUA did not have a valid reason for termination, and the termination was therefore unreasonable.

Procedural fairness

[195] Ms Ajax says that the conversation relayed to her which Ms AB overheard, in relation to the branch needing two good salespeople, tends to prove that the decision to terminate Ms Ajax was already made prior to the investigation and disciplinary process. Ms Ajax says that the ensuing investigation and disciplinary process was a charade, mechanical in nature, and did not provide real fairness.

[196] Ms Ajax says that in forming a fixed conclusion on the alleged misconduct prior to the process formally commencing taints CUA’s compliance with the Act in that Ms Ajax was only informed of the reason after termination was the decided sanction, 27 and that CUA was closed off to considering her responses.28 This lack of process cannot be explained by CUA’s size or lack human resources, she submitted.29 Ms Ajax says that as a result, the termination was unjust.

Other factors

[197] Ms Ajax submitted that by considering the termination letter, it is evidenced that CUA did not take into account her personal circumstances, including family responsibilities and that her employment was her sole source of income. She submitted that no regard was had for the effect the dismissal would have on her, her length of service and unblemished record. Further, she submitted that other mitigating factors such as the relatively small sum alleged to have been misappropriated ($101.70 in total) was not taken into account. Ms Ajax asks the Commission to find the termination was also harsh.

Remedy

[198] Ms Ajax asks for reinstatement to her position with continuity of service, and back pay for the period between the date of this decision and her termination. She says she has been unable to secure alternative employment despite diligently trying.

[199] Ms Ajax submits that from 28 July 2020, she received Centrelink income support payments. She says that she received two payments being $614.20 on 7 August 2020, and $699.79 on 20 August 2020. At the time of filing her first witness statement, she said that the payments had “mysteriously ceased” and she was seeking to resolve the issue.

Further submissions

[200] Ms Ajax provided detailed submissions concerning the ‘Macaron Coffee Event’, which Ms Nichol said occurred in May 2020, but which Ms Ajax says could have only occurred sometime prior to March 2020. Although at Hearing, Ms Ajax said that she thought it occurred on 11 June 2020.

[201] Ms Ajax says that the two occasions when she purchased macarons and then bought a coffee blended into one as they were insignificant life events. She says that the Commission should not make an adverse finding as to her credit due to the inconsistency because at all times she has been acting in good faith; while unreliable, she has not been dishonest, she submitted.

[202] To the contrary, Ms Ajax says that her diligence in seeking to correct the error should be found to her credit. Finally, Ms Ajax submits that the weight of the evidence tends to prove that Ms Nichol cannot be relied upon. Ms Ajax says that Ms Nichol has a motive to lie as it allows her to claim for coffee purchases that may not have occurred. Ms Ajax says that if Ms Nichol was wrong about the ‘Macaron Coffee Event’, then she cannot be relied on for any of her evidence.

Submissions of CUA

[203] CUA contend that there is “persuasive evidence” that Ms Ajax used the Hard Coffee account to purchase her own coffee, and that if accepted, this evidence substantiates serious misconduct. Assuming a finding is made that Ms Ajax committed serious misconduct, there is nothing in the procedure, or other factors, that are capable of rending the dismissal unfair. Accordingly, CUA requests that the application is dismissed.

[204] The Respondent disagrees with Ms Ajax’s suggestion that Brigginshaw imposes a higher standard of proof. It says that the standard is the balance of probabilities, and that Brigginshaw simply requires the decision maker to recognise that ordinarily members of society do not commit fraud or other criminal conduct – that Ms Ajax should be given the benefit of the doubt. 30

[205] The Brigginshaw test, CUA submitted, requires the Commission to be satisfied on the balance of probabilities that the misconduct occurred. In relying on Brigginshaw, the evidence capable of discharging this burden should be clear, cogent, and the balance strictly applied to find that the misconduct was more likely to have occurred, than not.

Valid reason

[206] The Respondent primarily relies on the statement of Ms Nichol who says that she suspected Ms Ajax and Ms AB to be using the coffee account for personal use, and she confronted them about this. CUA stated that when Ms Nichol put this to Ms Ajax and Ms AB, the conduct was not denied. Following this conversation, Ms Nichol observed that Ms Ajax less frequently charged her own coffees to the account.

[207] CUA submitted that the coffee account ledger corroborates Ms Nichol’s evidence in that the ledger illustrates a steady usage of the coffee account, despite the Brisbane branch not experiencing much foot traffic during the period – as evidenced by the other employees’ statements.

[208] CUA submitted that the Commission should be persuaded that the other employees of the branch only rarely used the coffee account during the relevant period. The Respondent says it should be accepted that Ms Ajax had a propensity to order cappuccinos, and Ms AB an almond milk flat white. The ledger then provides circumstantial evidence that Ms Ajax and Ms AB were misusing the account as these coffees appear throughout, and often as part of the one order.

[209] The Respondent say that the ledger corroborates the statement of Mr Thomson in that it shows an order for a long black in a keep cup together with two flat whites – Mr Thomson says that unbeknownst to him Ms Ajax charged this to the account and that he had bought Ms Ajax’s next coffee believing she had paid for his. Lastly, the ledger illustrates a decrease in order volume during a week in May, which coincides with a period Ms Ajax was on leave.

[210] The Respondent asks the Commission to reject Ms Ajax’s evidence that she was using the coffee account to provide coffees for customers waiting in line. This is because the evidence of other employees is that Ms Ajax was working away from customers, and that customer queues were not long. Further, no one can corroborate seeing Ms Ajax providing coffees to customers waiting.

[211] CUA asks the Commission to find the fact that Ms Ajax admits to misusing the account on 13 March 2020, as evidence of a propensity to misuse the account on other alleged occasions.

[212] CUA submitted that Ms Ajax has made prior inconsistent statements in that during the investigation on 18 June 2020 she said she only occasionally went to Hard Coffee, but her bank statements and witness statement show that Hard Coffee is her preferred café and that she goes there often. Further, on 29 June 2020, she stated she did not drink cappuccinos, while her statement says they are regularly ordered by her when she is not ordering a piccolo. The Respondent says that this discredits Ms Ajax’s integrity, and illustrates an attempt to avoid responsibility.

[213] Lastly, the Respondent submit that Ms Ajax’s evidence that she primarily paid in cash cannot be accepted as it is inconsistent with the evidence of Ms Nichol – that Hard Coffee wasn’t accepting cash at this time – and inconsistent with her bank statements. Further, Ms Ajax’s bank statements illustrate that she often consumed more than one coffee per day. The Respondent say that Ms Ajax’s dishonesty during the investigation compounds the seriousness of her misconduct. 31

[214] The Respondent asks the Commission to find that Ms Ajax misused the Hard Coffee account for her personal benefit, they say that the evidence is clear, cogent and consistent. CUA further submits that Ms Ajax’s dishonesty during the investigation elevates the seriousness of her misconduct to a point where it would be inconsistent for her to continue in employment. It says that Ms Ajax committed serious misconduct.

[215] In oral closing submissions it was put that Ms Ajax was not able to lay the blame solely at Ms AB misusing the coffee account because this was not put to Ms AB. Further, CUA submitted that Ms Ajax’s evidence has been entirely inconsistent relevant to her consumption of coffee, and it is clear that she does drink far more cappuccinos than she earlier would have CUA and the Commission believe.

[216] CUA conceded that it should have, in putting the allegations to both Ms Ajax and Ms AB, said to them they each had roughly improperly put about half of the transactions through.

Procedural fairness

[217] CUA submitted that there is no credible evidence that Ms Cardillo’s investigation into the misconduct was unfair, or that she had made a foregone conclusion. It submitted that the fairness of the investigation is evident upon the face of the letter of allegations, show cause and termination letter. Therefore, Ms Ajax was afforded procedural fairness and CUA complied with s.387(b) and (c).

Other factors

[218] The Respondent submitted that the seriousness of the misconduct and dishonesty during investigation outweighs any consideration of Ms Ajax’s personal situation or other factors. It submitted that despite it being unfortunate that Ms Ajax was terminated after six years of unblemished service and has been unable to find work, at least until the point of her submissions, the termination was not harsh because continued employment would be inconsistent with the misconduct.

Remedy

[219] Primarily, the Respondent submitted that no relief should be ordered as the dismissal should not be found unfair. Alternatively, it submitted that reinstatement would be inappropriate as there has been an irreparable breakdown of trust and confidence.

[220] If a remedy is ordered at all, the Respondent submitted that the Commission should take into account the backdrop of misconduct, including during the investigation, the paucity of evidence illustrating mitigation of loss, and the fact CUA already paid four weeks’ notice. It submitted that a compensation order should, in the foregoing circumstances, not rise above an additional nine weeks’ salary.

Consideration

[221] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd: 32

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[222] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 33

[223] I will address each of the criteria set out in s.387 of the Act separately. However, before I do so, I wish to address the credibility of the various witnesses. I found all of the Respondent’s witnesses to be credible. I am satisfied that they gave honest evidence before the Commission. Even where Ms Nichol wavered in some parts, where she suggested that Ms Ajax purchased a coffee every single work day, I do not accept Ms Ajax’s criticism of her that she somehow had a vested interest in these proceedings. There is no basis for the Commission to find that Ms Nichol had any interest in the CUA coffee account being charged a relatively modest amount of the relevant period of time. There is no suggestion that Ms Nichol earned any commission or bonus on account of coffee sales.

[224] Where Ms Nichol suggested that Ms Ajax purchased coffee most days from Hard Coffee, I accept that is not necessarily the case. Ms Nichol, serving many customers each day can be forgiven for having some of the days blur into the next in what is a short transaction.

[225] I found Ms AB to be lacking credibility and I consider that she was involved in the misuse of the coffee account. On the basis of her resolution of her litigation between herself and CUA, I don’t expect Ms AB will be exposed to any criminal investigation over the relatively small amount of funds which I consider she deliberately and purposefully misused.

[226] Turning to Ms Ajax, I found her evidence lacking in credibility. In my view, she did not make a truthful witness in many respects. Where Ms Ajax has sought to clear her name in order to resurrect a career in the financial services industry, this decision is no doubt, extremely unhelpful for her.

[227] Simply because she vigorously pursued the application and had a very large amount at stake in the proceedings is not a convincing reason to find that Ms Ajax did not engage in the conduct. Ms Ajax was at pains to produce various records to assist in her demonstration that she did not engage in the conduct. Disappointingly for her, the records do not assist her and relevant to the macaron incident, make her earlier evidence to the Commission incorrect.

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)

[228] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”

[229] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 34

[230] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 35 “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.”36

[231] Ms Ajax had six years’ service with CUA. Other than the incident resulting in her termination, she held an exemplary employment record.

Ms Ajax’s coffee consumption

[232] I consider that Ms Ajax has purposefully sought to hide from the Commission her true coffee consumption. On the evidence before the Commission I am satisfied, on the balance of probabilities, that Ms Ajax had a coffee most work days. I am satisfied that on a very regular basis, but not every day, Ms Ajax enjoyed a second coffee in the afternoon. I have had regard to the fact that Ms Ajax used her bank card to pay for a coffee most work days during April 2020.

[233] I do not accept Ms Ajax’s evidence that she would typically sip on a cup for all or most of the work day, even when the coffee became cold. There is consistent evidence of her colleagues, which I accept, declaring that she would, on some days, have a coffee in the afternoon. The coffee consumed by her was in a larger cup than a piccolo. Ms Ajax’s own banking records demonstrates that she was regularly charged more than $3.70 for a piccolo.

[234] I accept, without reservation Ms Nichol’s evidence that in April 2020, she separately warned Ms Ajax and Ms AB that their personal coffee orders on the CUA account would become known as the significant downturn in business in the city would make their transactions transparent. Ms Ajax’s and Ms AB’s denial of each of their conversations with Ms Nichol is rejected.

[235] When Ms Nichol was approached by Ms Cardillo in early June 2020 about the use of the account, it was an impromptu conversation. Ms Nichol did not have time to rehearse what she might say to Ms Cardillo. She immediately said to Ms Cardillo that she had warned “them” about their activities.

[236] Ms Ajax and Ms AB were terribly unconvincing relevant to this evidence. I find that Ms Nichol had no ulterior motive relevant to allowing Ms Ajax and Ms AB to put personal coffees on the account. Ms Nichol did not derive any benefit from this activity. In fact, Ms Nichol knew this to be inappropriate, but considered that it wasn’t her responsibility to refuse the requests made by Ms Ajax and Ms AB. All of the three women were seemingly friendly at this point in time; Ms AB and Ms Ajax at times kindly minded the while Ms Nichol went to the bathroom.

[237] It’s clear that Ms Nichol was even prepared to offer gratuities to Ms Ajax; a free coffee in exchange for a macaron gifted to her. Accordingly, I find that Ms Nichol could not be said to have been antagonistic towards Ms Ajax, or somehow setting her up. I consider that she turned a blind eye to Ms Ajax’s inappropriate use of the coffee account, but provided a relevant caution to her because Ms Nichol was one step ahead. She knew if it came under investigation, Ms Ajax and Ms AB would be unable to demonstrate to CUA management for whom the coffees were purchased.

[238] If Ms Ajax’s hypothesis of Ms Nichol falsely putting coffees on the account was correct, it would be expected that May 2020 would have had a large number of beverages charged to the account. Ms Cardillo did not speak with Ms Nichol until early June 2020. I accept Ms Nichol’s evidence that Ms Ajax and Ms AB commenced to heed her warning and stopped making purchases on the account.

[239] Further, Ms Ajax’s evidence given during the hearing where she stated, relevant to Ms AB’s coffee order, “I don’t know her order. I’ve bought her a flat white and skinny. She’s never asked me for an almond milk” is in complete contradiction to evidence before the Commission, and particularly the evidence of Ms AB. Ms Ajax disappointingly told a complete untruth to the Commission on this issue, noting that Ms AB confirmed that they would often buy their coffee together in the morning, and shout each other on occasions. Ms AB had not only recently been drinking coffee with almond milk; she had been doing so for around six months at this point in time.

[240] It is clear that Ms Ryan, as the decision maker relevant to Ms Ajax’s employment, did not have before her all of the evidence that is available before the Commission. The male colleagues were not interviewed until the dismissal had been effected and this application made.

[241] Ms Ajax worked in an industry requiring demonstrated high levels of integrity. The financial services sector cannot afford to have an employee in its midst who might be untruthful over transactions of only around $100; there is the opportunity for further misadventure if it is not promptly addressed.

[242] I am satisfied that Ms Ajax and Ms AB jointly misused the CUA account at Hard Coffee. Where some purchases were for a flat white (with or without almond milk), on the balance of probabilities, I find that the majority of those purchases were for Ms AB, although some of them may have been for Ms Ajax, despite her denial that she does not drink a flat white. Where purchases were for a small cappuccino, on the balance of probabilities, I find that the majority of those purchases were for Ms Ajax. Where some of the purchases were for a flat white, despite Ms Ajax’s denial that she does not drink a flat white, I find on the balance of probabilities that some of those orders were for her.

[243] I accept the contention that even though Ms Ajax preferred to drink a medium cappuccino in the afternoon, the fact that only small cappuccinos could be ordered on the account did not act as a deterrent. It was, after all, a free drink.

[244] It was not put by Ms Ajax that perhaps Ms AB had made all of the purchases on the account for the two of them, and Ms Ajax unknowingly benefited from Ms AB’s misconduct. In any event, I accept Ms Nichol’s evidence that both Ms Ajax and Ms AB were engaged in improperly using the account.

[245] Disturbingly, and seemingly without any conscience, it appears to me that Ms Ajax placed Mr Thompson’s beverage order in his keep cup on the account. I accept his evidence that he assumed, when the offer was made by Ms Ajax, that she would be personally purchasing his beverage. Instead, I find on the balance of probabilities that she put that order on the account and allowed Mr Thompson to later shout her a coffee in return for what he understood to be a returned favour.

[246] This is clear when the CUA discount around this purchase was intermingled with another order. That is, there were two CUA discounts of 70-cents each applied at that time. I have no hesitation in finding that Ms Ajax improperly ordered Mr Thompson’s coffee on the account, and another order she was not permitted to make.

[247] I find that Ms Ajax had a cavalier attitude to the coffee account. She considered it unfair and miserly of CUA to remove the ability to make a daily coffee purchase on the account. This is so because other CUA branches permitted a coffee machine in the branch. I accept Ms Cardillo’s evidence that during the meeting with her on 19 June 2020, Ms Ajax expressed the view that it’s “just coffee”, and following the meeting she said, “It’s coffee, for fucks sake.”

[248] I find that Ms Ajax, in concert with Ms AB considered it appropriate that they should occasionally make use of the account for personal benefit. Having reviewed the invoices, as unsophisticated as they are without a date and time for each transaction, I am satisfied that on occasions the order for Ms Ajax and Ms AB was made together, noting that a CUA discount applied twice.

[249] Ms Ajax knew that such conduct was not appropriate. Where she thought on 13 March 2020 she was “problem solving” by assisting the flustered waiter/barista, she was, in fact, spending her employer’s money without authorisation. I accept the evidence of Mr Reus and Ms Cardillo that Ms Ajax initially denied putting a coffee on the account, and later provided an explanation for doing so. Ms Ajax was aggressive during the initial conversation, correctly denying that she had put her friends’ coffee order on the account. Mr Reus apologised if that was what was conveyed. Ms Cardillo did not take disciplinary action over this issue at the time.

[250] I am satisfied that Ms Ajax’s conduct strikes at the heart of her duties to CUA to be honest in all of her transactions at or involving the workplace, despite her being responsible for only part of the inappropriate transactions, in concert with Ms AB.

[251] I do not consider the reason for the dismissal to be capricious, fanciful, spiteful or prejudiced. I am not satisfied that there was an agenda, as Ms Ajax put to have her employment, and that of Ms AB end on account of the branch wanting more sales-focussed employees. I accept the evidence given that it is appropriate to have a pipeline of potential employees and the discussion was nothing more than that.

[252] I am satisfied that the conduct engaged in by Ms Ajax, when objectively assessed, constitutes a valid reason for the dismissal.

s.387(b) - Whether the person was notified of that reason

[253] Ms Ajax was notified in a letter of allegation on 18 June 2020 of the very serious matter she was required to address. A show cause letter dated 25 June 2020 was issued to her.

[254] An “additional findings” letter dated 29 June 2020 was issued to Ms Ajax, however she did not read it until she had been dismissed. The additional findings letter went simply to the fact that CUA had concluded that Ms AB regularly ordered drinks with almond milk, and CUA had been informed that Ms Ajax would order cappuccinos, although this could change. Further, Ms Ajax was informed that CUA concluded that relevant to mind map activities, she couldn’t have ordered coffees for members.

[255] Despite Ms Ajax not reading the letter of 29 June 2020 prior to the dismissal, I am satisfied that she was notified that it formed part of the reason for the dismissal.

[256] Disappointingly, at no time did CUA point out to Ms Ajax that she was being accused of the identical conduct issues as Ms AB. She knew this to be the case, as she and Ms AB were holding discussions with each other, but CUA did not point out that it was accusing her of acting in concert with Ms AB and jointly being responsible for the conduct.

[257] Having regard to the matters referred to above, I find that Ms Ajax was notified of the reason for her dismissal prior to the decision to dismiss being made, and in explicit, plain and clear terms, albeit if the finding was that Ms Ajax was solely responsible for the misconduct when CUA knew that she was jointly responsible for the conduct with Ms AB.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[258] Ms Ajax responded to the reasons related to her conduct in the following manner:

•  19 June 2020 – meeting between Ms Ajax and Ms Cardillo;

•  19 June 2020 – meeting between Ms Ajax, Ms Cardillo and Ms Ryan;

•  21 June 2020 – email to Ms Cardillo;

•  23 June 2020 – email to Ms Cardillo;

•  25 June 2020 – meeting between Ms Ajax, Ms Cardillo and Ms Ryan;

•  29 June 2020 – response to show cause letter;

•  30 June 2020 – meeting between Ms Ajax, Ms Cardillo, Ms Ryan and Ms Foster; and

•  1 July 2020 – email to Ms Foster.

[259] I am satisfied that CUA gave valuable consideration to the written and oral responses given by Ms Ajax. In all the circumstances, I find that Ms Ajax was given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.

s.387(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

[260] This is not a relevant consideration. Ms Ajax utilised the services of the FSU.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[261] Ms Ajax was not dismissed relevant to unsatisfactory performance; she was dismissed for misconduct.

s.387(f) - Whether the Respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[262] The Respondent is not a small business. I find that the size of the Respondent’s enterprise was not likely to impact on the procedures followed in effecting the dismissal.

[263] CUA has a dedicated human resources team which was called upon to provide relevant assistance in the decision to dismiss Ms Ajax. I do not consider there was any impact on the procedures followed in effecting Ms Ajax’s dismissal due to a lack of human resources specialists or expertise.

s.387(h) - Other matters

[264] I have had regard to Ms Ajax’s submissions relevant to her being a single mother of two children, and the income from her role being her sole source of income. I have had regard to her six years of unblemished performance with CUA until the misuse of the coffee account was discovered. I have also had regard to the relevantly small amount of money involved.

[265] The parties were questioned as to whether it would be necessary for CUA to notify on any sort of banking register the reasons for Ms Ajax’s dismissal, allowing future employers to be informed she had been dismissed for misconduct. The Commission was informed that because CUA is not a bank, it is not party to the Australian Banking Association’s Conduct Bank Checking Protocol. I have taken this into consideration.

[266] I have had regard to Ms Ajax’s decision to covertly electronically record two meetings when she was not provided with any direction not to make recordings of the meeting. Further, I have had regard to Ms Ajax’s decision to purposefully record the latter meetings, when she was informed that she was not permitted to do so. Ms Ajax had a representative with her, but still elected to disobey a lawful and reasonable direction not to record the meeting.

[267] Despite the laws of Queensland seemingly permitting the recording of conversations without the second party’s knowledge, it is not conduct in the workplace that I typically encourage or condone. Recording individuals within the workplace without their knowledge is, I consider, in most cases, underhanded and unacceptable. In this case, where Ms Ajax was directed not to record the meeting and she chose to do so, I consider it to constitute misconduct.

[268] I have had regard to the fact that CUA dismissed Ms AB for the very same transactions constituting the reason for Ms Ajax’s dismissal. I consider this was a naïve step undertaken by CUA to blame each of the women for 100% of the inappropriate transactions. Where it was trying to silo each of Ms Ajax and Ms AB, CUA should have properly put to Ms Ajax that Ms AB was being investigated for the same transactions and it was not alleged that Ms Ajax improperly put all of the items on the coffee account, but that she had put some of item on the account without authorisation, and she knew or ought to have known that Ms AB was doing the same.

Is the Commission satisfied that the dismissal of Ms Ajax was harsh, unjust or unreasonable?

[269] I have made findings in relation to each matter specified in s.387 as relevant.

[270] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 37

[271] The matters for consideration in s.387(h) which might weigh in favour of a finding that the dismissal was harsh are, however, to be balanced against the seriousness of the reason why Ms Ajax was dismissed.

[272] Ms Ajax’s prior unblemished length of service, the financial impact of losing her job and the relatively small amount of money involved are all matters which are to be weighed in the balance of assessing whether the dismissal was harsh, unjust or unreasonable. Specifically, these matters tend to be relevant in assessing whether the dismissal was harsh. These matters are, however, to be balanced against the conduct in which I have found Ms Ajax has engaged. Having weighed up all of the relevant considerations, I find that the dismissal was not harsh.

[273] I am satisfied that Ms Ajax engaged in serious misconduct and it justified the termination of her employment. Ms Ajax is guilty of the conduct and so the dismissal was not unjust. The dismissal was not disproportionate or otherwise unreasonable considering the conduct and the other circumstances that I am required to take into account, and which I have earlier discussed. The dismissal was not unreasonable.

Conclusion

[274] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Ms Ajax was unfairly dismissed within the meaning of s.385 of the Act.

[275] The application for unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

Tacey L, for the Applicant.
Derrington N, counsel for the Respondent, instructed by Humzy-Hancok N.

Hearing details:

2 November 2020, Brisbane
3 November 2020, Brisbane
18 November 2020, Brisbane

Printed by authority of the Commonwealth Government Printer

<PR730384>

 1   Witness statement of Lynelle Ajax, 11 September 2020, p.3, [16]; Witness statement of Lynelle Ajax, 30 October 2020, at [10].

 2   Witness statement of Lynelle Ajax, 30 October 2020, at [10].

 3   Ibid, at [33].

 4   Ibid, at [17]-[18].

 5   Ibid, at [21]-[23].

 6   Ibid, at [25].

 7   Ibid, at [27].

 8   Ibid, at [28].

 9   Ibid.

 10   Ibid, p.7, [34].

 11   Witness statement of Lynelle Ajax, 13 November 2020, p.2, [8].

 12   Ibid, p.2, [7].

 13   Witness statement of Lynelle Ajax, 30 October 2020, at [88].

 14   Witness statement of Lynelle Ajax, 13 November 2020, at [11].

 15   Ibid, at [7].

 16   Witness statement of Lynelle Ajax, 30 October 2020, at [83].

 17   Witness statement of Lynelle Ajax, 13 November 2020, at [20].

 18   Witness statement of Lynelle Ajax, 30 October 2020, at [84].

 19   Ibid, at [31]-[43].

 20   Witness statement of Ms AB, 17 September 2020, p.1, [7].

 21   Ibid, p.2, [15].

 22   Ibid, p.3, [14].

 23   Ibid, p. 7-8, [37].

 24   Edwards v Justice Giudice [1999] FCA 1836, (Moore J) [4].

 25   Briginshaw v Briginshaw (1938) 60 CLR 336.

 26   Ibid, 362.

 27   Fair Work Act 2009, s.387(b).

 28   Ibid, s.387(c).

 29   Ibid, s.387(f) and (g).

 30   Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449-450.

 31   Thomas v Virgin Australia Airlines Pty Ltd [2019] FWC 4464, [116] and [118].

 32   (1995) 185 CLR 410, [465].

 33   Sayer v Melsteel [2011] FWAFB 7498 at [20].

 34   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 35   Edwards v Justice Giudice [1999] FCA 1836, [7].

 36   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 37   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].