[2017] FWC 605

FAIR WORK COMMISSION

DECISION

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

Alka Kumari
v
Metro Trains Melbourne
(U2016/9610)

COMMISSIONER WILSON

MELBOURNE, 1 FEBRUARY 2017

Application for Unfair Dismissal Remedy.

[1] Alka Kumari was employed by Metro Trains Melbourne from March 2001 until she was dismissed for reason of allegations of misconduct in July 2016. The termination of employment letter from Metro Trains was dated Friday, 1 July 2016, 1 but was received by Ms Kumari sometime later in the following week. At the time she was dismissed, Ms Kumari was employed as a Station Officer Class 2 at Parliament Station.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Ms Kumari’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time she was dismissed she was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] For the reasons set out below, I have found that Ms Kumari was unfairly dismissed within the meaning of Part 3 – 2 of the Act; that the appropriate remedy is reinstatement; and that orders for continuity of service, maintenance of continuous service and lost remuneration should be made.

REPRESENTATION OF THE APPLICANT BY A LAWYER

[4] For the reason that I was satisfied it was appropriate to grant permission for Ms Kumari to be represented by a lawyer, Mr Fetter, of Counsel, appeared for the Applicant at the hearing of this matter. Metro Trains was represented by its Employee Relations Consultant, Ms Gillam. In granting permission for representation by a lawyer to Ms Kumari, which was opposed by Metro Trains, I had regard to the provisions of s.596(2) of the Act, and was persuaded that such representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (s.596(2)(a)). In support of that finding, I also considered the other elements of s.596(2), specifically matters as to the inability of Ms Kumari to represent herself effectively as well as fairness as between the parties.

[5] In making that decision, I had regard to the proper interpretation of s.596, which was considered by Flick J of the Federal Court in Warrell v Walton 2:

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.” 3

[6] It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission. 4 The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.5

[7] In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused. 6 Sheer volume of documents or the existence of extraneous issues does not equate to complexity.7 While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.8

[8] I was satisfied that the relevant complexity of this matter concerned the allegations that had been made, and the findings that would need to be made about them, and that representation of the Applicant would assist the matter to be dealt with more efficiently.

[9] It has been held in relation to s.596(2)(b) that the relevant test is not an assessment of the skills and education of the individual representative, but rather an examination of the resources available to a party as a whole; 9 and that an inability to represent oneself would be an inability to represent in a manner which creates a striking impression, or which has an impressive effect, or which is powerful in effect.10 In Ms Kumari’s case I was satisfied that the criterion within s.596(2)(b) had been enlivened. I took into account that while her husband had assisted with the investigation that led to her dismissal, as well as in the preparation of her case, and would otherwise likely represent her in the hearing, overall, she and he may have had difficulty in presenting their case and that their overall available resources may limit their ability to do so.

[10] Section 596(2)(c) enables a grant of permission for representation by a lawyer or paid agent if the Commission is satisfied that it would be unfair not to allow that representation taking into account fairness between the person to be represented and the other persons involved in the same matter. I took into account that Metro Trains was to be represented by an internal employee relations consultant. While I am unaware of whether Ms Gillam is legally qualified or not, I took into account that nonetheless she could be regarded to have knowledge of the Act, the Commission’s procedures, and the tests for determination of the application and that such would create a level of unfairness between the parties. I was satisfied that the criterion within s.596(2)(c) also supported a grant of legal representation.

BACKGROUND

[11] Evidence in this matter was given by the Applicant, Ms Kumari, and her husband Ashok Soeny, as well as two other employees of Metro Trains ordered by the Commission to attend upon her application for their attendance, Pearljit Singh and Jason Cilia, both of whom have worked with Ms Kumari for at least part of the period relevant to the matters taken into account for her dismissal. The Commission also took into account the content of two witness statements tendered on behalf of the Applicant from Amar Tomar, a family friend, and Kim Seng Low, a former work colleague of Ms Kumari’s. Both of these latter statements were tabled without the need for cross-examination by the Respondent.

[12] Evidence was received on behalf of Metro Trains from William Foster - Myki Infield Support Coordinator, Tony Chiera - Customer Service Manager, and Murray Rose - Business Partner, People & Performance (at the time of the dismissal).

[13] In March 2016, Mr Foster was provided with information from Brent Tuchin, a Fraud and Reporting Analyst within Public Transport Victoria (PTV), highlighting possible fraud by Metro Trains employees associated with the Myki electronic ticketing system. PTV is independent of Metro Trains and, amongst other functions, is responsible for the Myki ticketing system which in turn is operated by Metro Trains and other Victorian transport providers. Mr Tuchin’s email had originally been forwarded to Mario Stanisic, Metro Trains Manager, Ticketing Services – Customer Experience, who forwarded it on the same day to Mr Foster. The email communicated the outcome of a Myki audit which highlighted a number of irregular transactions involving duplicate replacement Myki cards using previously replaced cards.

[14] The irregular transactions were incorporated into a PTV Revenue Audit Report which summarised the findings of an analysis of certain transactions in 23 stations in the period 1 July 2015 to 30 September 2015. The report does not disclose the total number of transactions considered by the audit team and no-one involved in the design or conduct of the audit gave evidence in these proceedings. While not disclosing the total number of transactions considered by the audit team, the report identifies that 1,322 transactions were examined across the 23 stations, and shows the “staff ID” for each of the transactions, as well as the number of irregular transactions for each staff ID. Most of the staff IDs reported have 1 or 2 irregular transactions; some have 3 or 4. 22 have 10 or more. The staff ID assigned to Ms Kumari is reported by the audit report as having 93 irregular transactions. One other staff ID, at Melbourne Central Station, had 221; and another at Southern Cross Station had 73 irregular transactions.

[15] Four users with unusually high amounts of the transactions were identified in discussions between Mr Foster and his contacts at PTV. One of those identified was Ms Kumari. 11 Mr Foster’s evidence was that he was asked to look into the “top four” users and he regarded that to be a directive by the PTV to do so. Of these four, the employees were spread across three stations within the Melbourne CBD, namely Parliament, Southern Cross and Melbourne Central stations. In respect of Ms Kumari, all of the relevant transactions were between August 2015 and February 2016; and all were at Parliament Station.12 A smart card assigned to Ms Kumari featured 93 times in the listed irregular transactions.13 Mr Foster conducted investigations into the users identified in the audit14 which led to him forming the view that Ms Kumari had been involved in fraudulent transactions. Mr Foster’s methodology in this regard involved choosing at random 10 of the 93 transactions and then investigating in some detail the circumstances that sat behind each of the transactions. That methodology essentially involved comparing the available PTV Myki information with staff rosters. The PTV Myki information included information such as the card number, the date and location of the transaction and, if conducted by a staff member on a Metro Trains terminal, the staff number of the employee concerned.

[16] Mr Chiera and Mr Rose were also alerted to the irregular transactions in March 2016, with Mr Chiera learning that three of the four suspected users were within his reporting line. Together with Mr Foster, the three agreed in March and April 2016 that the matters should be the subject of greater investigation and, so it seems, exchanged information amongst themselves about the progress of the work. Mr Chiera and Mr Rose were kept appraised of developments, and Mr Chiera undertook his own detailed examination of material provided to him. However, most of the investigatory work was undertaken by Mr Foster. While the initial PTV audit report, on its face at least, refers to samples having been tested in the period 1 July 2015 to 30 September 2015, 15 the analysis undertaken by Mr Foster was for the broader period up to February 2016.

[17] The 93 transactions referred to include a number of otherwise non-fraudulent transactions. Mr Foster’s evidence was that his focus was upon the examination of the cloning of Myki cards that had previously been described as “non-readable”. Once he made adjustments for the non-fraudulent transactions as well as other categories, the total number of irregular transactions about which he was concerned, for reason that the original cards were classified as “non-readable”, was 88.

[18] Lengthy evidence was provided to the Commission about the nature of the conduct that was alleged against Ms Kumari and how it related to the Myki cards and alleged deviations by her from what would be regarded as normal process. At the invitation of the Commission, prior to the hearing of this matter the parties agreed that the allegations of misconduct or departure from normal process made against Ms Kumari were as follows;

“1. In 2016 Ms Kumari was working as a station officer at Parliament Station. Her job included selling new myki tickets to passengers, and replacing defective myki cards. New cards are sold to passengers for $6. Expired or defective cards are replaced for free. The process for replacing those cards is as follows. The staff member enters the serial number of the old card onto a computer, links it to the serial number of the new card, gives the passenger the new card, and then puts the old card in a dedicated box (Box). Cards that are handed in as lost are also placed in the same Box.

2. It is alleged that since October 2015, Ms Kumari had been:

(a) taking old myki cards (either lost or defective/unreadable cards) out of the Box, linking them to new cards (Linking Transaction), and then retaining the new card;
(b) within a few days, when a customer tried to buy a new card and add value to it, the card would register as a replacement card therefore no charge is applicable. She would then charge them the usual fee ($6) for a new card (New Card Transaction), but that transaction would not be put through the system, and the Applicant would steal the $6 tendered;
(c) the Applicant would process the adding of value to the card through the system in the usual way (Top Up Transaction).

3. It was alleged Ms Kumari had done this 93 times over a 7 month period. Metro does not have any eyewitness or video evidence of the Applicant stealing the money tendered, but its records shows that the Applicant had processed each Linking transaction and each Top Up Transaction.”

[19] To further understand these contentions, it assists to know that there may be three categories of Myki cards requiring attention by a station officer and, arguably, which may be subject to the form of scam set out above. The customer may find their card is defective permanently; they may find their card is only working intermittently; finally the card may be about to expire for reason of its age or has already done so. In all cases the customer would go to the ticket office window and seek a replacement. Ordinarily the customer’s original card would be exchanged for a new one for which they would be charged money (either $3 or $6 depending upon the customer’s concessional status). Because the original card would likely have retained value on it, the operator “links” the original card to the new one and then provides the new card to the customer. Having received the new card the customer may then add value to it either by paying the station officer at the ticket window or using a machine in the station to do so, or by doing on it online at some later time.

[20] In this process, the linking of one card to another is also referred to as “cloning”. The original card having been retained by Metro Trains is then held until it can be destroyed.

[21] Metro Trains puts forward that the investigation conducted by them showed that cards had been cloned on multiple occasions after which value had been added to the cards through a top up. Whereas the second part of that process, namely adding value to a card for the purposes of travel by customer, may have been legitimate as the customer went about their travel, the first part was not, with Metro Trains being satisfied that Ms Kumari had been cloning cards, selling them as new cards and, if there was actually any money proffered by the customer for the purchase of the card, taking it and pocketing it herself, which amounted to theft. In all cases the money stolen, while not specified, was in the range of $3 – $6. Metro Trains conceded that it was unable to identify whether any money had been stolen and that it may have been possible that Ms Kumari was simply giving the cards away. Mr Rose’s evidence was that all he knew was that someone cloned the cards and the cards had entered circulation.

[22] Mr Foster’s evidence was that between March and May 2016 he conducted investigations into the users identified in the audit and that on 11 May 2016 he commenced a formal investigation into the matters. 16 In his oral evidence Mr Foster put forward that, due to the complexity of the matters he was investigating, the process took a large amount of time to undertake, with him spending many hours on the task after having received the initial email report on 23 March 2016.

[23] On Monday, 30 May 2016 Mr Rose instructed Mr Chiera that Metro Trains had decided to stand Ms Kumari down until the investigation had been completed. As a result, Mr Chiera went to Parliament Station to meet with Ms Kumari at the time she was due to start her shift and in the course of that meeting he informed her that she was being stood down with pay; provided her with a letter advising her of that fact; and told her that she should leave, which she did.

[24] The discussion at the stand-down meeting also included a direction to Ms Kumari to attend an investigation meeting on Thursday, 2 June 2016. However on the day after the stand-down meeting, on 31 May 2016, Ms Kumari’s husband, Mr Soeny, sent an email to Mr Chiera which advised that she was too unwell to attend the investigatory meeting on 2 June and that it required rescheduling, with Mr Soeny’s correspondence setting out the following on the subject;

“6. She arrived home in a shocked, distressed and dazed state. Anything could have happened to her on the way home. None of you bothered about her welfare.

7. Ever since she arrived home she has been continuously crying, not eaten her meal and totally distressed. It is unimaginable for us as a family that any member would do anything wrong knowingly. Alka has been an honest, loyal and dedicated worker of Metro for last 15 years and has an absolutely clean record.

8. I took her to the doctor this morning as she had not slept all night and been crying. Doctor has prescribed medication for her and she is unfit to come to the meeting on Thursday 2nd June as desired by you. As soon as she is fit, she will join you for the meeting. However, I am quite willing to appear on her behalf on Thursday when you can let me know what the concerns are against her. Please let me know if you want me to come.” 17

[25] The meeting took place on Monday, 6 June 2016 with Ms Kumari, Mr Soeny and family friend Amar Tomar attending on behalf of Ms Kumari, and Mr Chiera and Julia O’Reilly from Metro Trains’ HR department on behalf of the Respondent. While there was considerable discussion about the allegations being made against Ms Kumari in that meeting, she was not provided with a written outline of the allegations and the documents that were made available to her in the course of that meeting were not left with her to take away and consider further.

[26] A second meeting was held with Ms Kumari to discuss the allegations on Friday, 17 June 2016. On that occasion Mr Soeny accompanied Ms Kumari, and Mr Chiera and Mr Rose were in attendance for Metro Trains.

[27] One of the points in contest in this matter is the repeated requests by Mr Soeny to Mr Chiera and Mr Rose for access to CCTV footage of the time periods relating to the allegations being made against his wife. The nature of those requests and their significance to the overall decision-making is discussed later in this decision; however relevant to the chronology in this matter is that by 29 June 2016, that is two days prior to the date of termination, Mr Rose undertook to Mr Soeny to make available to him CCTV footage that Metro Trains held, with their correspondence summarised as follows; 18

on 29 June at 4:27 PM Mr Rose advised that he had “some time available tomorrow”, that is 30 June 2016, in which the CCTV footage could be shown to Mr Soeny and Ms Kumari. He invited Mr Soeny to contact him in order to arrange a suitable time;

on 30 June 2016 at 8:52 AM Mr Soeny confirmed there had been agreement to meet to view the footage on Friday, 1 July 2016 at 1:15 PM at Flinders Street Station;

Mr Rose responded to other points within that email the same day at 1:39 PM;

the following day on Friday, 1 July 2016 at 3:52 AM Mr Soeny responded further about a matter other than the time of viewing, and in particular his request that Metro Trains confirm in writing how many cases of CCTV footage would be available for viewing;

later that day, Friday 1 July 2016 at 12:50 PM, Mr Soeny advised that the meeting otherwise arranged was unable to proceed for reason of his wife’s illness; and

also on Friday, 1 July 2016 at 3:18 PM Mr Rose responded in the following terms;

“Thanks. I hope Alka feels better.

Feel free to contact me next week if you want to reschedule this meeting.”

[28] The CCTV footage was subsequently never viewed by Ms Kumari or Mr Soeny and was not tendered in evidence in the hearing.

[29] Mr Rose’s evidence is that sometime after the meeting on 17 June 2016 he made a recommendation to Metro Trains’ senior management about the disposition of the matter and that recommendation was that Ms Kumari be dismissed. He provided the recommendation in a report, which was not made available to the Commission, and a delegate of Metro Trains’ management, Colin Shaw, approved Ms Kumari’s termination of employment. A letter was prepared expressing that decision which was dated 1 July 2016 and was posted the same day by Mr Rose by express post after he had completed work for the day.

[30] Mr Rose also requested a counsellor employed by or acting on behalf of Metro Trains to make contact with Ms Kumari to see whether she needed any counselling assistance after the dismissal.

[31] Ms Kumari’s evidence was that at some time around 2, 3 or 4 July 2016 a counsellor came to her house and spoke with her and asked something to the effect of “how are you going after the dismissal?” Her evidence is that at that time she did not know that she had been dismissed and that she only learned about her dismissal as a result of the counsellor attending at her house.

[32] In her evidence Ms Kumari disclosed that, as a result of the allegations against her, she suffered significant mental anguish to the point where she wanted to kill herself and that she refused to live with the allegations against something that she could not have the motive to do.

[33] The copy of the termination letter tendered in these proceedings has a handwritten note by Mr Soeny saying that the termination letter was received by him on 12 July 2016 at 5:20 PM. 19 Correspondence before the Commission includes that on Friday, 8 July 2016 Mr Soeny still did not have the letter of termination, but that he confirmed on 12 July 2016 at 5:32 PM that he had received the correspondence.20

[34] Ms Kumari’s application for unfair dismissal remedy was filed in the Commission on 20 July 2016.

LEGISLATION

[35] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows;

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.

CONSIDERATION

[36] Determination of whether Ms Kumari’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[37] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way; 21

“[28]The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 22

a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 23

it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 24

the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 25 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 26” (original references)

[38] I will deal with each of the criteria within s.387 in turn.

(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)

[39] In matters such as this, involving determination of a valid reason relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred. 27 The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must make a finding as to whether the conduct occurred based on the evidence before it.28

[40] Where the conduct involves serious misconduct, the principle established in Briginshaw v Briginshaw 29may be relevant. The standard of proof remains the balance of probabilities but “the nature of the issue necessarily affects the process by which reasonable satisfaction is attained”30 and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences” or “by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion”,31 and without applying a standard of proof higher than the balance of probabilities.32 The strength of the evidence needed to establish a fact on the balance of probabilities “may vary according to the nature of what it is sought to prove”.33 More serious allegations may require stronger evidence. In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct. The Commission will also take into account the need for honesty on the part of the applicant during the course of an investigation.34

[41] When Ms Kumari was stood down in the course of the meeting on 30 May 2016 and informed that she was required to attend an investigation meeting, she was provided with a letter that set out the matters about which Metro Trains was concerned. The correspondence informed her of the following, noting that the meeting referred to did not take place on 2 June 2016 but rather on 6 June 2016;

“Dear Kumari
RE: Interview Notification

I write to inform you that Metro Trains has concerns regarding inappropriate MYKI transactions in your role of Station Officer at Parliament Station. These concerns relate to transactions from 1st July 2015.

You are required to attend an investigation meeting on Thursday 2^nd June 2016 at 0930 being held at Melbourne Central Station meeting room. In attendance will be myself, (Customer Service Manager), and Murray Rose (People & Performance). This meeting is to provide you an opportunity to respond to the concerns held by management.

You are entitled to bring a person to the meeting to support you. That person may be a union representative, friend, colleague or family member. It is your responsibility to check and determine their availability as the meeting will not be postponed due to availability of a support person. Please notify me of the person attending so that appropriate arrangements can be made for the meeting day.

You may decide to provide a written response in relation to the above matter prior to the meeting, which will be taken into consideration, but will not serve as a substitute for the meeting and your attendance will still be required.

This investigation is confidential and is not to be discussed with anyone else in the workplace, except with your support person. Where confidentiality is breached it may lead to employee counselling.

The outcome of the investigation may result in employee disciplinary action, up to and including termination of employment.

Should you require further support in relation to this matter, the Employee Assistance Program (EAP) can be contacted on [number], available for a confidential discussion.

Yours sincerely,

Tony Chiera
Customer Service Manager - Central Group” 35

[42] Ms Kumari’s evidence about the meeting on 30 May 2016 includes that she was told nothing of substance about the allegations that were made against her and that she was just presented with the letter and told to go home, whereas Mr Chiera puts forward a different construction in that he informed her generally of the nature of the allegations. The letter to Mr Chiera dated 31 May 2016 from Mr Soeny made the point in relation to the stand-down meeting on 30 May 2016 that “no details of any irregularities were provided to her.” The same correspondence also pointedly takes issue with whether or not Ms Kumari had been told of Metro Trains’ concerns and whether she was capable of responding to what had been provided to her.

[43] Ms Kumari’s case is also that she was not provided with sufficient detail about the allegations against her in the meeting held on 6 June 2016 and that she very strongly protested her innocence to the management representatives. Mr Chiera’s evidence is that he referred to three examples of irregularities and endeavoured to explain what was being alleged against Ms Kumari. That evidence of Mr Chiera’s is broadly consistent with the material within Mr Tomar’s witness statement about the meeting which provides;

“6. Tony mentioned about PTV investigating irregular transactions and how a card was replaced twice by Alka. Ashok asked if their system allows that and to which Tony replied yes. When Ashok asked again as to why should it allow that, Tony replied that it is a question for PTV and they are investigating as to why it allows. Alka was asked if she has done it, she replied that she has not done anything wrong and neither she has the need to do it. Alka explained the procedure for replacement. Tony gives another example where he alleges that she put the value of the card which is $6- in her pocket. Alka denies it.

7. Tony gives another example of a card when a duplicate was created on 31^st October 2015. Ashok asked how often you check these things should not happen and Tony replied that these guys are checking all the time. Ashok then asked as to why then you are asking her 8 months later. Julia said that we have to investigate. Ashok asked if Alka could have the copy of letter from PTV about this investigation. Tony replied that you can ask but PTV said No. Tony then gave another example of 21^st February 16 where a duplicate card was created. In both these cases $6- and $7- were involved. Julia asked Alka if she had done it and Alka replied – No I have not done it. Alka then told as to how others could be working on TOT with her card logged in when she is on her breaks, on training or attending to incidents at the station. Alka further said that all she has been told over the years by her Station Masters that if her end of shift report is OK, cash balance, credit card all match, then all is OK.

8. Tony then talks about auto top up of $20- going up on a passenger defective card which had been replaced. Alka replied that she has nothing to do with auto top up as it is an arrangement between passenger and their bank. Tony said that card was presented to TOT again. Alka then explained that it is possible when they have to bundle defective/expired/unreadable cards separately, they might present it to TOT to check its status. Alka also explained how sometimes people bring 4-5 cards and want to know which one has got any balance and the only way she can check is by presenting it to TOT. That does not mean that a transaction is being carried out. Tony says that you should not be checking the cards again and then Alka asks as to how then they can bundle them separately. Tony, however, confirms that $20- is still on that card and it has not been used.

9. Tony said that PTV has brought 90 transactions to us with similar pattern and Ashok asks if they all involve $4- or $6-. Tony said there is a transaction at 5.53AM when there is no barrier staff and Alka replied that there is always a staff and she might have gone to toilet or make a cup of tea. Ashok said that it is unimaginable for Alka, with the sort of family background she has, to be accused of $4- or $6- and Tony replied that we don’t look into that. Ashok said that you do consider if a person is likely to do that. Alka is not very good with computer and if she made a mistake then he can’t argue about it but she has denied doing these. Ashok again asks Tony if he would give them the details and Tony says I can’t give the ticket number involved.” 36

[44] The second of the investigation meetings was held on 17 June 2016 and the discussion that took place focused again on the nature of the allegations against Ms Kumari, with her witness statement putting forward the following;

“13. My second meeting with CSM Tony and Murray Rose from HR happened on 17th June 2016. Tony and Murray pointed out that there were 100 cases with irregularity which later was corrected to 90. Tony had a sheet with him in which there were approx. 10 highlighted. Out of these 10 were perhaps 4 cases which Tony had mentioned in his 1st meeting on 6th June. When asked about these highlights, Tony was evasive in reply. In these cases perhaps there was some where a concession Myki had been replaced with a full fare Myki.

Tony discussed a case where a Myki had been replaced earlier by another officer and replaced again by me approx. 2 months later. Tony explained this on a white board in the room. It did not make any sense to me or my husband. If it was replaced earlier by someone else, how did the defective Myki land in my hands? Was I then hiding that Myki costing $3 or $6 for nearly 2 months so that I could replace it later on? Every officer in almost every shift replaces between 20-30 Myki’s everyday. So why couldn’t I use one of those to replace again than hide this one for nearly 2 months and that too for only $3 or $6 - Did it make sense?

Tony and Murray also asked why value on replaced tickets had been added later on. As per them passenger cannot be given ticket without putting any value on them. I explained that it is true for new tickets but for replaced tickets, we tell passengers that it will take up to 5 working days for value to appear, if there is any. Then it is up to passenger to add value then or later on. My experience is that some don’t even listen to what we say – they are either not listening or talking on their mobile or texting while some say they have another ticket and put money later. Some go to the barrier and when the ticket doesn’t work, come back and put value and some may do it hours or even days later. Some of our daily passengers whom I have seen or known for years, hand a Myki to us for replacement and say we are going to pick up a newspaper or coffee while I go through the process of replacement.” 37

[45] In that meeting Mr Chiera illustrated the allegations against Ms Kumari using a whiteboard;

“26. At this meeting, we again talked through the allegations against Ms Kumari. We also spoke about the suspect transactions and we provided detailed reporting and explanation for a random sample of 10 suspect transactions. At this meeting I provided an example on the whiteboard of how the transactions were being performed. Ms Kumari was given ample time at this meeting to consider the evidence and provide explanations for these transactions. The reports we again presented comprised of Ticket Office Terminal (TOT) transaction histories, Product Activation Number (PAN) reports, time and attendance reports that clearly show Ms Kumari as being in attendance at the time the transactions took place.

27. At this meeting Mr Rose mentioned that there was CCTV footage of the Parliament Station Booking Office which showed that Ms Kumari was present at the time 2 separate suspect transactions took place. At this point Mr Rose confirmed with Ms Kumari and her representative that this footage would be available to view should they wish. No request was forthcoming at that point.” 38

[46] While documents were provided to Ms Kumari in the meetings to support the matters being discussed by the management representatives, none were left with her. Since those meetings, and for the purposes of the hearing, Metro Trains compiled two reports that they say illustrate the matters discussed within the two investigation meetings. Each of the reports provides details about the 10 example irregularities investigated by Metro Trains, with Mr Chiera’s evidence being that “Ms Kumari was given ample time at this meeting to consider the evidence and provide explanations for these transactions.” 39 The simpler of the two documents provides the following in relation to the third of those 10 examples as follows, noting that due to the way the evidence was presented in the hearing, it is not suggested that it was precisely this example that was discussed within the meeting on 17 June 2016. It is also noted that what follows is a short extract of a much longer document;40

[47] The purpose of referring to the example is to illustrate that, in the absence of evidence before the Commission about the precise documents that were put to Ms Kumari or the precise examples that were discussed with her, a finding can only be made by the Commission that the allegations made by Metro Trains against Ms Kumari were consistent with the generality and data-driven nature of the extracts referred to above.

[48] Ms Kumari strenuously denied the allegations that were made against her. In the meeting on 6 June 2016, Ms Kumari said that she had not done the things alleged and that “others could be working on TOT with her card logged in when she is on her breaks, on training or attending to incidents at the station”. 41

[49] The day after this meeting, on 7 June 2016, Mr Chiera provided some further particulars regarding the allegations against Ms Kumari and which had been discussed in the meeting. This document runs for four pages and so is not reproduced in full in this decision, however the header and the first 10 dates are reproduced in order to provide some context about the material that was provided by Metro Trains to Ms Kumari; 42

Date	Time	Transaction
10/13/2015	8:36:17 AM	Replacement Fee
8:36:38 AM	Add Value
11/6/2015	12:16:31 PM	Replacement Fee
10/30/2015	8:10:06 AM	Replacement Fee
10/31/2015	9:48:54 AM	Add Value
9/20/2015	5:18:33 PM	Replacement Fee
5:58:17 PM	Add Value
9/20/2015	6:12:18 PM	Replacement Fee
10:05:58 PM	Add Value
11/1/2015	8:17:51 AM	Replacement Fee
11/5/2015	4:54:25 PM	Add Value
11/1/2015	1:27:12 PM	Replacement Fee
11/2/2015	5:53:13 AM	Add Value

[50] Having received this information, Mr Soeny provided a lengthy defence to Mr Chiera on behalf of his wife which included that “[t]he list you have sent provides no information as to what is wrong in that and details are not there. As such Alka is unable to provide any answers or clarifications”. 43 The other matters raised by Mr Soeny included;

the need for Ms Kumari to leave her workstation accessible to other staff either to attend to incidents at the station, within the ladies toilets, or to attend training;

the possibility of either another staff member accessing her computer, using her identity to do so, or of mistake; and

questions regarding potential shortcomings in the Myki system;

“4. On several occasions when she responds to incidents at her station, she has left her shift open and others use TOT with her card in it to serve customers.

5. Even when passengers complain of something being wrong in ladies toilet, she has to go and check it out leaving her shift open and in the hands of others.

6. She also gave you an example when she had to go for training for nearly 4 hours, she had to leave her shift open for other person as she could not swap due to peak hour. That person not only continued working on TOT, with her card in it, till the end of her shift but also till the end of his own shift as well. Next day she asked him if everything was OK and he replied in the affirmative.

7. She has been thinking hard as to how 2 new myki's were issued against one unreadable Myki. She completely denies that she did it and does not even know that it can be done. If it happened, then only possible explanation could be that

a). Someone else did it who knew that it can be done. OR
b). She accidentally by mistake handed back the defective Myki along with new to the customer and that customer came back either same day or another day and asked for replacement again. As you deal with hundreds of customers every day and to the very large majority you hand back their own Myki, after doing the needful, she is unable to discount this possibility. At times, she feels, it is a mechanical action. Passengers are always in a hurry as they have to catch their train and you try to serve them as fast as you can. However she does not remember that she handed back defective Myki.

8. Regarding 4th instance her explanation was that unreadable/defective/expired myki's are put in a open cardboard box and when you want to separate them and bundle them later you forget that it was unreadable/expired or defective for any other reason and you may present that Myki to TOT to check its status and bundle it accordingly. The fact that Myki has not been misused shows that no bad intentions were meant. However, having said that, she does not remember that she did it.” 44

[51] In the meeting on 17 June 2016, Ms Kumari raised the defence of customer error in response to questions from Metro Trains representatives about why value had been added to replaced cards at a later time. Ms Kumari’s witness statement includes that sometimes passengers are not listening or are talking on their phone or texting;

“Some go to the barrier and when the ticket doesn’t work, come back and put value and some may do it hours or even days later. Some of our daily passengers whom I have seen or known for years, hand a Myki to us for replacement and say we are going to pick up a newspaper or coffee while I go through the process of replacement.” 45

[52] Following the meeting on 17 June 2016 Mr Soeny took the opportunity to confirm some of the matters that were discussed within the meeting as well as to reiterate that he wanted further information from Metro Trains about the allegations, and in particular that he wished to have access to any CCTV footage that may be relevant to the allegations. 46

[53] Mr Rose responded on behalf of Metro Trains to Mr Soeny on 28 June 2016. In doing so he both raised the proposition that Metro Trains was under some obligation as a result of requirements of the PTV to not provide material to Ms Kumari, as well as agreeing that CCTV footage could be made available to her;

“3. The reports and information used in this investigation has been provide by PTV. These reports contain private information regarding financial transactions and travel. Any request for copies of such information would need to be made to the PTV. The information was available without restriction for review at the time of the meeting.” 47

[54] That response in turn elicited a lengthy response from Mr Soeny, with him disputing that Ms Kumari understood the issues that had been discussed in the meeting on 17 June; that it would be improper for Metro to not provide material for consideration by Ms Kumari held by it but originally provided by the PTV; and that he and his wife indeed wished to view the CCTV footage;

“4. Yes we need to have all the details in our hand to fully understand the issues and provide an appropriate response. It would not be right for her to blame anyone else without even understanding the issue herself. Again, she does not know the name of the staff member (2nd case) who replaced it first time. How did that Myki get into the hands of the passenger or Alka to replace it again? How can you be sure that this staff member did not hand back the Myki to passenger who came in few days later to replace it again. Did we check CCTV to find out if it was the same passenger or not?

5. We would like to remind you that Alka is an employee of Metro and not PTV and also the allegations are being levelled by you. We cannot ask PTV for information. It is your responsibility to provide full and detailed information to get an appropriate response.

6. You keep mentioning 90 or so cases and you will have to provide information for all 90 cases including CCTV. However, if you have information for 1 or 5 or 10 cases then provide detailed information about them and stop mentioning a figure of 90. You are using this figure to frighten and bully her.

7. We are available to view the CCTV footage whenever you are ready.” 48

[55] Evidence given in the hearing by Mr Chiera and Mr Rose, somewhat imprecisely, nonetheless conceded that by the time the decision to dismiss Ms Kumari had been made, Metro Trains both knew that there were only two pieces of CCTV footage available for viewing and that neither showed any material activity on the part of Ms Kumari or any other staff member. Mr Rose’s evidence is that at the time of the final debate over when the CCTV footage could be viewed took place, the decision to dismiss Ms Kumari had already been made by Metro Trains’ delegated authority, Mr Shaw. These matters were not referred to in the witness statement of either witness.

[56] Following that exchange there was a further email from Mr Soeny on 30 June 2016 in which he confirmed what he now understood to be the case from a telephone conversation with Mr Rose which was that there were only two CCTV recordings available for viewing, but that in any event he and Mr Rose had agreed to meet at Flinders Street Station on Friday, 1 July 2016 at 1:15 PM to view the footage. 49 Mr Rose replied to that email, addressing Mr Soeny’s concerns, including that “[t]here are a number of incidents where CCTV is available, as highlighted in our last meeting. It was clearly mentioned to you that the footage was available for you to view at our last meeting. The footage will be shown to you.”50 Mr Soeny responded categorically to the correspondence on Friday, 1 July 2016 at 3:52 AM requesting that Mr Rose confirm in writing how many cases of footage Metro Trains had to show him and his wife.

[57] The evidence received in the matter discloses that at some time on or prior to 1 July 2016 Mr Rose recommended to his senior management that Ms Kumari’s employment be terminated. This recommendation was accepted by Mr Shaw, and Mr Rose then took steps to communicate that to Ms Kumari in a letter to her signed by a senior manager of the company which he posted by express post on 1 July 2016 after he had completed work for the day. As indicated above, Ms Kumari was too unwell to attend the meeting on 1 July, and she was terminated prior to being afforded an opportunity to view the CCTV footage.

[58] Despite having communication with Mr Soeny on several occasions on 29 and 30 June and 1 July 2016, Mr Rose took no steps to personally let Mr Soeny know of the company’s decision on or around those dates. His last email to Mr Soeny, at 3:18 PM on Friday, 1 July 2016, was almost certainly sent after approval had been given to terminate Ms Kumari, and likely sent after the termination letter had been prepared and signed. Likewise, no other Metro Trains representative attempted to personally let Mr Soeny know of the company’s decision about his wife’s employment.

[59] Ms Kumari has consistently denied the allegations made against her and at no time has conceded the accuracy of the claims. In her defence she puts forward three possible explanations; that someone else could have engaged in the alleged fraud using her login while she was away from her computer terminal; that perhaps a defect of the computer system, specifically caused through her computer “freezing” in the course of routine transactions being undertaken which then had to be done again, could be to blame; or finally that it may be the result of innocent mistakes by her in the course of handling transactions with customers, such as by her inputting the incorrect information or using the wrong card to undertake the transaction. 51

[60] The latter two propositions were not the subject of detailed testing by Metro Trains, which considered it to be unlikely that a crashed or frozen computer would cause the irregularity picked up by the PTV audit team or that innocent mistakes would explain what had occurred. Mr Foster, when giving evidence, provided screenshots of the relevant processing system and emphasised through his evidence that a transaction would not be complete until the very last screen and that in the event a computer had crashed prior to that point there would not be a transaction recorded. Metro Trains’ representative, Ms Gillam, in closing submissions put forward that if mistakes were being made of the volume seen within the transactions undertaken, allegedly by Ms Kumari, then that in itself would be cause for dismissal as a result of an inability to perform the duties required of a station officer.

[61] It is noteworthy that the PTV audit provided to Metro Trains refers to a total of 1,322 questionable transactions and provides 7 pages of detail about the station location and staff ID against which the transactions are recorded to have been undertaken. In the course of the hearing there was an acceptance, in round terms at least, that this accounted for about 300 employees out of a total of 800 working on the Metro train stations concerned. As mentioned previously, most of the staff IDs reported had 1 or 2 irregular transactions; some had 3 or 4 and 22 staff IDs are recorded as having 10 or more.

[62] In many of the relevant points within the investigation, and also within the hearing, Ms Kumari claimed it was routine for her computer to be left on and accessible to others during breaks she took away from the ticket office. Her evidence was that she had been directed by stationmasters to provide her password to others so they could use the terminal during her absence, while logging in with her username, in order to continue to serve customers without interruption or delay. Mr Cilia, who worked as a stationmaster at Parliament Station until October 2015, agreed that this was the case.

[63] Metro Trains’ argument, in order to dispel the proposition that some other employee had used Ms Kumari’s computer terminal to access the Myki system and fraudulently undertake the transactions complained about, consists largely of the analysis undertaken firstly by Mr Foster and secondly by Mr Chiera to correlate the transactions against the times that Ms Kumari worked as well as the times that most, but not all, other employees were rostered to work at Parliament Station. In this regard it is said the analysis has some complexity. There are three shifts over the course of the day. While the station does not apparently work around the clock it operates from at least 4:30 AM on one morning through until the early hours of the next. Within that range of hours there are three shifts. Parliament Station also operates with two significant entries, one toward the north of the station at Lonsdale Street, and one at the south of the station toward Bourke and Collins Streets. Ms Kumari worked both morning and afternoon shifts as well as working at both of the entrances. As a result both of the shifts and the locations of employees there are a very large number of permutations about when different customer services officers might work. The management representatives precisely aligned when the transactions occurred with when Ms Kumari worked, as well as for other employees, and satisfied themselves that it would not have been possible for another employee to commit the alleged fraud or undertake the number of transactions alleged against Ms Kumari.

[64] The evidence leads to the conclusion that Metro Trains did not interview Ms Kumari in detail about the shifts she worked or the dates and times of the irregular transactions. There is also no evidence before the Commission that Metro Trains interviewed any other employee about either their knowledge of Ms Kumari’s behaviour, or of their own or of any other employee who might have worked at the station and possibly been one of the people who might have had an opportunity to use Ms Kumari’s workstation under her staff ID. Having made that point, it should also be conceded, after viewing Ms Kumari as a witness, that any questions of her on the subject would likely have reached a dead-end. Her responses in cross-examination on when things occurred were largely along the lines of her not having an explanation for something about which she was not aware and because she hadn’t done what was alleged. Had Metro Trains pressed Ms Kumari about the dates in question or the opportunities that other staff members may have had to use her computer, it is likely they would have drawn a blank.

[65] It is also the case that Metro Trains took no steps to either ascertain the details of the customers who may have retained and then travelled with the Myki cards issued by Ms Kumari, or someone else using her staff ID, or to interview them about the transactions PTV or Metro Trains complain are irregular. Metro Trains’ explanation in this regard is that the information is owned by PTV and is confidential. With respect, such argument is inadequate, and steps should have been taken by Metro Trains to ascertain this information. The allegations made against Ms Kumari are serious; they are of the nature of fraudulent conduct, alleged to involve theft, and deserve to be tested as seriously as possible. If for some reason the PTV were to say that the information was confidential and could not be provided, which appears doubtful if fraudulent conduct has been committed by an employee of Metro Trains as is alleged, then that may be the end of the matter. However, in the absence of a firm and formal response from PTV on the subject of the provision of customer details, Metro Trains is open to the criticism that it did nothing to ascertain what customers or fellow staff may have said about the alleged fraudulent behaviour.

[66] By the time Metro Trains came to dismiss Ms Kumari, in correspondence dated 1 July 2016, it knew that she disputed the basis of its investigation and that she had advanced several possibilities that might explain why her staff ID had become prominent in the PTV’s audit. It also knew that she wanted to view CCTV footage before finalising her response to Metro Trains. The balance of probabilities suggests that Metro Trains was not candid with Ms Kumari about what footage existed or about what it showed, and, finally, that it had already decided to dismiss Ms Kumari at the point it agreed with Mr Soeny to allow viewing of the footage.

[67] The reasons given by Metro Trains for the dismissal of Ms Kumari ultimately are those which are set forth in the termination letter, dated 1 July 2016. That correspondence provides the following;

“[Address]

RE: Termination of Employment

Dear Alka

An audit uncovered numerous examples of unusual transactions involving purported defective MYKI cards which occurred on your shifts using your MYKI TOT access. '

I am advised that you were provided with the opportunity to put forward a plausible explanation for how the transactions came to be occurring during your shifts. You have not been able to do so, which leaves us to reach the conclusion that you engaged in misappropriate conduct amounting to what we regard as fraud.

Consequently it has been decided to terminate your employment as a result of what is regarded as serious misconduct.

Apart from breaching a number of company policies including the Code of Conduct and Anti-Fraud; your behaviour has created an irretrievable breakdown in the trust between management and yourself which is necessary in any employment relationship.

Your termination is effective immediately, with your entitlements, to be paid in full to your nominated bank account once your supplied property has been returned.

Yours sincerely,

Dr. Jacques Liebenberg
Director of People &. Performance” 52

[68] Potentially discordant with this explanation is the one referred to at the start of this decision and expressed to the Commission prior to the hearing, with it being said that since October 2015 Ms Kumari had been engaged in a scam with lost, defective or unreadable Myki cards in which she would steal money provided to her by customers. While different to the reasoning set out within the termination letter, I consider that, overall, the explanation has a general consistency with the termination reasons as expressed at various points by Metro Trains representatives, including in correspondence about the allegations to Ms Kumari and her husband as well as in the hearing. While Metro Trains was reluctant to directly put to Ms Kumari that she had been stealing, that is what she understood the allegation to include, and Mr Tomar’s witness statement refers to precisely that allegation having been put in the meeting on 17 June, noting that the statement was admitted without cross-examination of the witness. The statement records relevantly that;

“13. Murray said that PTV conduct auditing whether it takes them 11 months, 12 months or 3 months. PTV conduct internal audit of the device and we do not have that luxury. We checked the touch on hours and they match with Alka’s. Tony brings up an example of a Myki replaced on 30th October and value added next day and wants to know from Alka why value added next day. Ashok asks what is wrong with it. Tony says this is a defective card and sold off. Ashok asks him to be careful with his language and asks if he has any evidence that she sold off the ticket and pocketed the money. Alka explains that they don’t sell new Myki without adding value to it but for replacements they tell passengers that it will take up to 5 business days for value to appear on it, if there is any but they cannot force them to add value straightaway. Some don’t pay attention to what we are saying, they are busy talking over the phone or texting or simply don’t understand. Few add value straightaway on replaced card, some may come back minutes, hours or days later to add value. People also have 3-4 cards. Murray argues a card cannot be replaced without adding value to it.” 53 (underlining added)

[69] At the time of dismissal, Metro Trains had available to it the data provided by the PTV audit. It had the correlation of that data with its own rostering records which demonstrated that each of the alleged questionable transactions by Ms Kumari took place on days and times that she was rostered for work and that the transactions emanated from her staff ID. It also had her denials of the accusations and her hypotheses about how the transactions may have come to occur.

[70] However it had little else.

[71] No other employee said that they had seen Ms Kumari undertaking the transactions alleged. No customer had said that they thought it odd that $6 had been put to one side when Ms Kumari issued a new Myki card and that she failed to provide them with a receipt for their money or the old card they had handed in. There was no video evidence or oral evidence corroborating that on a particular day that an irregular transaction had occurred and that Ms Kumari had been seen performing it. There had been no testing of the IT system or the computer in question about the times or dates of crashes that might have dismissed the proposition put forward by Ms Kumari that her computer “freezing” might explain the irregular transactions. There had been no steps taken to test, at the local level of Parliament Station, Ms Kumari’s assertion that her computer access card was routinely used by other staff members or that she had been directed on occasion to provide her password to employees so that they may use her computer when she was away from the ticket box. There had been no statements received from other employees at Parliament Station, rostered on for work at the same time as Ms Kumari on the relevant sample dates, to the effect that there were simply no occasions on which they might have used Ms Kumari’s workstation. There was no auditing of cash register receipts or other systems that might expose a discrepancy between cash receipts and card transactions on the dates in question and who or what may have been the cause.

[72] In an era when everyone records everything, it is entirely feasible for an employer without proof of misconduct to commission covert surveillance of an employee suspected of the actions alleged against Ms Kumari, as well as it being foreseeable that external scrutiny of the employer’s investigation will query why it may not have been undertaken. Mr Foster’s evidence was that a trap was not set in relation to Ms Kumari’s conduct because the investigations he was conducting into the alleged fraud of all four employees, including Ms Kumari, became known and the activities of people under investigation stopped. His evidence was that after he believed the investigation had become known that there were no further irregular transactions by Ms Kumari. Mr Chiera and Mr Rose both expressed the view that it would be inappropriate for Metro Trains to conduct covert surveillance of an employee.

[73] In other unfair dismissal matters the Commission has accepted that covert surveillance is an acceptable method of gathering evidence and making a decision about an employee’s conduct and their future as an employee. 54

[74] Mr Foster’s contention that the company’s investigation of fraud had become known to Ms Kumari was not put to her in cross-examination.

[75] Despite Mr Foster’s hypothesis about his investigations being known to Ms Kumari and others – and this is ultimately merely one of several unproven hypotheses of Metro Trains about the overall circumstances – the Commission is left with the following matters capable of being established on the evidence;

PTV advised Metro Trains in March and April 2016 that its auditing showed suspicious transactions undertaken on numerous occasions by numerous Metro Trains employees at numerous locations;

the report highlighted transactions against many employee staff ID numbers with most of those being only one or two irregular transactions within the audit period;

the staff ID assigned to Ms Kumari is recorded by the audit report with 93 suspect transactions. One other staff ID at Melbourne Central Station had 221; and another at Southern Cross Station had 73 transactions;

Metro Trains investigated the “top four” employees, which included Ms Kumari; and

not all of the reported 93 transactions can be regarded as irregular, with a more accurate description being 88 transactions involving non-readable cards.

[76] Mr Foster’s evidence went mainly to the question of what irregularities had occurred, when they happened and what he reported to Mr Chiera and Mr Rose. He first became aware of the irregularities on or about 23 March 2016.

[77] Mr Chiera’s evidence was characterised by some gaps in his recollection. For example, he initially denied having sent an attachment with details of the irregular transactions to Mr Soeny, but having thought about it further he agreed he had in fact sent the correspondence. The way Mr Chiera gave evidence leads to the view that he dealt with matters involved in the investigation in some degree of summary and without full attention to the detail of what was available as evidence, as well as what was and what was not being said by way of response on behalf of Ms Kumari.

[78] Mr Chiera’s view of Mr Soeny’s actions between 13 and 17 June 2016 also was subject to apparent change between his witness statement and his oral evidence. His witness statement puts forward that;

“Between the 13th June and the 17th June 2016 Mr Seony sent numerous emails to Mr Rose and me in an attempt to prolong and frustrate the investigation process by raising alternative explanations for Ms Kumari’s conduct including blaming the MYKI ticketing system and MTM management for failing to pick up the behaviour sooner.” 55 (emphasis added)

[79] In his oral evidence though Mr Chiera sought to downplay what he had written at the time of the witness statement, putting forward instead the view that his reference to Mr Soeny’s endeavour to “prolong and frustrate” the investigation process should not be read as “obstructive”, but instead be read as an endeavour by Mr Soeny and Ms Kumari to get to the bottom of the matter in the end of the investigation.

[80] Such later interpretation does not appear to be consistent with the witness statement as drafted.

[81] The importance of these differences is the contention made by Ms Kumari that she had ultimately been dismissed because Metro Trains viewed her to be attempting to frustrate its investigation.

[82] Mr Rose’s evidence similarly lacked clarity on an important aspect of the exchanges he and Mr Chiera had with Mr Soeny as the representative of Ms Kumari. He too denies having considered Mr Soeny’s correspondence as being obstructive, despite saying in his witness statement there was a combative tone to Mr Soeny’s emails which led him to allow an opportunity to view the CCTV footage, 56 and that the numerous emails sent by Mr Soeny between 13 June and 17 June 2016 were “an attempt to frustrate the investigation process by raising alternative explanations for Ms Kumari’s conduct”, which he took to be an endeavour to blame the Myki ticketing system as well as Metro Trains management.57

[83] While Mr Soeny’s emails forcefully and passionately expressed his views and, in a few cases perhaps unduly so, none could be regarded as being offensive or in bad faith.

[84] In considering a matter such as this, the Commission applies a standard of proof established on the balance of the probabilities. After considering the import of the High Court’s judgments in Briginshaw and Neat Holdings, the Full Bench analysed the application of those principles in matters such as this;

“[6] The appellant's submission is that this passage indicates that the Commissioner fell into error in weighing the evidence because he failed to apply the correct onus of proof - namely, the balance of probabilities. The appellant submitted that the standard in civil proceedings is always proof on the balance of probabilities. Reliance was placed on the following passage from the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others:

"2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw:

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..."

There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading."

[7] It seems to us beyond doubt that the standard of proof to be applied in Commission proceedings is proof on the balance of probabilities. While it is true that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, the standard of proof never changes. The Commissioner indicated that he thought it appropriate to apply a higher level of satisfaction in relation to findings of fact involved than the bare civil onus of the balance of probabilities. That was an error of law.” 58 (references omitted)

[85] In Ms Kumari’s case, the Respondent’s argument depends upon it being inferred there was a fraud, and that she had committed it, because the balance of probabilities weighs in that direction. The case is built upon inferences to be made because circumstances suggest that such is the case. While it may be superficially attractive to conclude that 88 irregular transactions performed under the one staff ID must have been performed by the staff member to whom that number is assigned, such would be an erroneous conclusion to make. It would depend upon too many inferences to be reliable. Those inferences would include that only Ms Kumari could have been responsible for the transactions; and that reasonably the alternatives she put forward of another staff member using her ID, or of system or personal error, could not have reasonably occurred.

[86] In Reynolds v Country Fire Authority, a case involving a question of who was responsible for pornography being found in the workplace, Senior Deputy President Lacy analysed the care that must be taken in inferring that circumstances meant that misconduct had to be found. The inference sought to be drawn was that because pornography had been found at the employee’s workstation he was responsible for having brought it to the workplace;

“[25] There is no direct evidence that Mr Reynolds brought the pornographic material into the workplace or was otherwise responsible for it being there. The question is whether it may be inferred that Mr Reynolds was responsible for the material being in the workplace.

[26] In G v H Brennan and McHugh JJ said:

An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference (Martin v Osborne (1936) 55 CLR 367). But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss of legal principle.

[27] The facts or circumstances that may be taken into account in determining a fact based on circumstantial evidence were discussed in Martin v Osborne. In that case Dixon J said:

The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed. ...

[28] The relevant facts and circumstances upon which the inference is to be drawn must do more than give rise to mere conjecture or speculation; there can be no inference unless there are objective facts from which it might be derived. The degree of probability required to provide a basis for the necessary inference will depend on the nature of the proceeding. This was highlighted in Bradshaw v McEwans Pty Ltd the relevant extract of which appears in Luxton v Vines and reads as follows:

Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities not with possibilities. The difference between the criminal standard of proof and its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture ... But if circumstances are proved to which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.

[29] This is a case in which there are allegations of both criminal and moral wrongdoing and it is common ground that the question regarding responsibility for the pornographic material being in the workplace is a serious matter to be determined in accordance with the principles enunciated in Briginshaw v Briginshaw. Thus due regard must be given to issues of importance and gravity in drawing inferences from proved or agreed facts. Where there is an allegation of fraud, an allegation of criminal or moral wrongdoing or an allegation involving serious legal consequences, an inference should not be drawn on inexact proofs.” 59

[87] The Full Bench has considered the role of inferences, in the context of an allegation that a company must have had regard to employees’ workers’ compensation status when making selections for redundancies. In the matter under appeal, it was accepted there was no direct evidence of such and that the Commissioner at first instance was invited to make a finding that the circumstantial evidence supported such a finding. On appeal the question for determination was agreed to be whether it was open to the Commissioner at first instance to not draw the required inference, with the Full Bench providing this elaboration upon the making of inferences in such matters;

“[41] An inference may be more readily drawn however, in cases where a party, although having it within their power to provide or give evidence on some issue, declines to do so. The principle was thus stated in G v H as follows:

"... it is well settled that, in the course of the ordinary processes of legal reasoning, an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so. Thus, for example, there may sometimes be an inference in civil cases that the evidence, if called, would not assist that party's case Jones v. Dunkel (1959) 101 CLR 298. And there may sometimes be an inference in criminal cases of "guilty knowledge", in the sense of knowledge that the evidence cannot be explained in a way that is consistent with innocence see, for example, Weissensteiner v. The Queen (1993) 178 CLR at 243-245 and the cases there cited. They are inferences that are to be drawn, if at all, in accordance with strict legal reasoning. In other cases, the failure to give evidence may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence.

[42] The statement of principles set out above may be summarised as follows:

¬ an inference is assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts;

¬ the drawing of an inference is part of the process of fact finding;

¬ an inference can be drawn if it is reasonably open on the basis of agreed or proved facts;

¬ the question whether a particular inference can be drawn from the facts found or agreed is a question of law;

¬ where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference;

¬ the circumstances must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture;

¬ matters to be taken into account in drawing an inference include circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed;

¬ generally it is not lawful to take into account moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations;

¬ the degree of probability required to found the necessary inference will depend on the nature of the proceeding:

¬ in a criminal case the facts must be such as to exclude reasonable hypotheses consistent with innocence,

¬ in a civil case you need only circumstances raising a more probable inference in favour of what is alleged;

¬ a party's failure to give evidence on some issue in cases where it is within that party's power to provide or give evidence, may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence.” 60 (reference omitted)

[88] In Ms Kumari’s case, the evidence does not lead to me finding that the circumstances raise a more probable inference in favour of what is alleged. In favour of the inference, and against her interests, is the fact that so many irregular transactions are recorded against her staff ID. However, against the inference are the following matters;

the proposition that the transactions are fraudulent is reliant entirely on the PTV audit document, which does not give much information at all. It, and subsequent analysis by Metro Trains, allows a bare-bones examination for each set of related dates of a couple of connected transaction details, together with the argument that money must have been taken by a staff member. Yet there is no evidence of significance to show there has been a fraud. In the absence of such evidence, I am left with transactions which are against proper procedure certainly, but am not left with sufficient evidence to make a finding that they were fraudulent;

Ms Kumari’s evidence, supported by Mr Cilia, is that she allowed other staff to use her staff ID and allowed them access to her password. That evidence is capable of acceptance, despite Metro Trains managers believing that such a work-around system did not exist. Since they did not actually investigate Ms Kumari’s claim in this regard or present reliable evidence to the Commission that what she claimed was a falsehood, I cannot exclude the possibility that the irregular transactions were undertaken by other staff;

Ms Kumari pointed also to system and human error for the transactions. The computer was prone to freezing and sometimes she handed cards out, perhaps erroneously, through a reflex action. Despite Metro Trains’ disbelief of these contentions, there is no reliable technical or expert evidence before the Commission that would support their view; and

the parties submitted in the hearing that Metro Trains’ analysis of the irregular transactions showed perhaps 300 of 800 platform staff being listed; yet only 4 employees were considered to have been involved in fraud. The fact that there are so many other staff members with irregular transactions against their staff ID begs the question: were their transactions perhaps also the product of their staff ID having been used by other staff members or system, personal or customer error?

[89] Were the difficulties with Metro Trains’ case only one of the above matters, I could be persuaded that the very high number of the irregular transactions on the one staff ID meant that, on the balance of probabilities, the holder of the ID was responsible. However, the combination of the circumstances referred to above mean that I cannot be satisfied on the balance of probabilities that Ms Kumari was responsible for the irregular transactions and that she had committed serious misconduct.

[90] I am satisfied that at the time it decided to dismiss Ms Kumari, Metro Trains did not have a valid reason for her dismissal, being one which is otherwise sound, defensible and well-founded.

(b) whether the person was notified of that reason

[91] The reason notified by Metro Trains to Ms Kumari for her dismissal is set out as misconduct and in particular that “numerous examples of unusual transactions involving purported defective MYKI cards which occurred” on her shifts amounted to serious misconduct, with her conduct being in breach of the company’s Code of Conduct and Anti-Fraud policies.

[92] Despite it being said by Metro Trains that Ms Kumari was dismissed for the “numerous examples of unusual transactions” as well as a failure on her part to put forward “a plausible explanation” for them, there is a lack of clarity surrounding the Respondent’s reasoning.

[93] At the time that Ms Kumari was dismissed there had been a particularisation of sorts involving the correspondence from Mr Chiera on 7 June 2016 setting out the four pages of transaction dates and times. That particularisation however suffered considerably from a failure to identify which of the several hundreds of lines of data were being complained about by Metro Trains and which were not. Further, and with the sheer volume of data presented being necessarily opaque, it was unclear as to which of the line items contributed to the finding of misconduct against Ms Kumari. It is clear from the way the matter proceeded in the hearing that Metro Trains regards Ms Kumari as having stolen the money given to her by customers, and that view cannot be disregarded as being a significant part of the reason it held for her dismissal.

[94] While that is the case, the details of the alleged theft – of its methodology, its timing and scale – were not particularised to Ms Kumari in the course of the company’s investigation, and prior to dismissal she was never asked detailed questions about Metro Trains’ hypothesis as to how the theft was undertaken.

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

[95] Strictly speaking, the criterion of whether an employee has been given an opportunity to respond to the reason for dismissal is consequential to a finding there is a valid reason for dismissal, which I have not found. 61

[96] In Wadey v YMCA Canberra 62 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:

“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”

[97] After being stood down from work on 30 May 2016, Ms Kumari had two opportunities to discuss the matters that were under investigation and used those opportunities to forcefully put forward her own view about the circumstances, which included strong and consistent denials on her part of the conduct being alleged as well as to propositions about how the irregular transactions complained of by Metro Trains may have come about. She also, mainly through her husband, Mr Soeny, had several opportunities to put other information to Metro Trains representatives as well as to ask questions of them and to insist that they responded.

[98] While that is the case, there is absolutely no doubt from the discourse between all concerned that at least from the date of the second investigation meeting held on 17 June 2016 that Ms Kumari desired to view any available CCTV footage. The interaction between the parties makes it clear that this desire was because Ms Kumari believed that the video would not implicate her and that it may assist her in presenting a defence for her position to Metro Trains.

[99] On the day that she was dismissed, 1 July 2016, her husband believed that agreement had been reached with Metro Trains for him and his wife to view the available footage. The circumstances of the dismissal as set out above are that on or before 1 July 2016 Mr Rose approached his senior management to recommend the termination of Ms Kumari, and that having obtained that approval a termination letter was signed and then mailed by Mr Rose after he finished work on that day. The decision to dismiss Ms Kumari only became known to her at some time in the following week when the counsellor made contact with her. At that time she had not received the termination letter, and the evidence allows a finding that both she and Mr Soeny were still under the erroneous apprehension that a time would be allowed for them to view the available CCTV footage.

[100] The circumstances of this matter allow a finding, notwithstanding that I have not found a valid reason for Ms Kumari’s dismissal, that she was provided with an inadequate opportunity to respond to and defend the allegations, such as they were made against her.

(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

[101] There was no unreasonable refusal by Metro Trains to allow Ms Kumari to have a support person present to assist at discussions relating to her dismissal. At all relevant times she was afforded the opportunity to be assisted in these matters by her husband, Mr Soeny.

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

[102] This criterion is not relevant for consideration. The dismissal of Ms Kumari did not relate to unsatisfactory performance.

(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

[103] Metro Trains is a large employer with approximately 4800 employees, 63 and I am satisfied that its size did not impact on the procedures it followed in effecting Ms Kumari’s dismissal.

(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

[104] Metro Trains had no absence of dedicated human resource management specialists or expertise in deciding upon the procedures to be followed to effect Ms Kumari’s dismissal.

(h) any other matters that the FWC considers relevant

[105] A relevant matter for consideration is whether Metro Trains took seriously the claims made to it by Ms Kumari that, as a result of the investigation having been commenced, she was suffering significant mental illness.

[106] Mr Soeny’s witness statement refers to what he considered to be the severity of the situation; that if he and his children had not supported her she would have committed suicide. 64 On 31 May 2016, Mr Soeny reported his wife was shocked, distressed and crying, had been to a doctor and been prescribed medication. On 17 June, he reported that Ms Kumari continued her medication and that she was highly depressed and having suicidal thoughts.65 On 1 July 2016, when he sought to postpone the meeting to view the CCTV footage, Mr Soeny advised Mr Rose and Mr Cheira that;

“I took Alka to see the doctor as she has been extremely down and just come back. Doctor said that she is going deeper into depression and she should not be put into more stress or at least another week or so. His advice was that today's meeting be deferred until next week as Alka is not medically fit to participate. He has further referred her to see a psychatrist (sic) ASAP.” 66

[107] Mr Rose’s evidence was also that he took at “face value” the advice from Mr Soeny that Ms Kumari was either suicidal or medically not fit to participate in the investigation. But clearly he did not. The face value of something is “the value or price shown on an item”. 67 Treating a green piece of plastic of the size, shape and markings known to be a $100 bank note as having $100 in value and taking steps not to leave it on a table in a café is to treat it at face value. Treating an expressed claim of deep depression with attendant claims of having suicidal thoughts with no change of direction or action at all is not to take the claim at face value. If one took at face value a claim a person was in such a condition, one would be concerned or shocked and motivated either to assistance or, if moving towards having to make a decision adverse to the person concerned, one would be motivated to put in place a process that reasonably ensured no unnecessary harm could befall the person. Suicidal thoughts of anyone, including an employee under investigation for alleged fraud, are not normal.

[108] Mr Rose and Mr Chiera, who expressed similar views to Mr Rose’s about reports of Ms Kumari’s suicidal status, plainly did not take the reports at face value. They plainly disbelieved what was said about Ms Kumari’s propensity for self-harm, or saw it as a product of a guilty mind. There were reminders to her that she could access the company’s Employee Assistance Program, but there were no attempts to otherwise accommodate her needs. When Metro Trains arranged for a counsellor to attend Ms Kumari’s house at a time that should have been after she was dismissed, the fact that the counsellor delivered the bad news allowed what may have otherwise been a well-intentioned act to be viewed as but the final link in a chain of not treating at face value her claims of illness.

[109] Having considered all of the criteria within s.387, I find that Ms Kumari was unfairly dismissed. Her dismissal was unjust in that it was made before she had an opportunity to view and respond to the CCTV footage. It was harsh in that the penalty imposed on Ms Kumari did not adequately take into account either the state of the evidence available to the Respondent or the effects of the investigation on her health. It was unreasonable given both the state of the evidence of the allegations against her and the failure to afford her access to the CCTV footage.

REMEDY

[110] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are as follows;

390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

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

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

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

Criteria for deciding amounts

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

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

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

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

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

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

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

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

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[111] Pursuant to subsection 390(3) an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[112] Ms Kumari submits that she should be reinstated to the position from which she was dismissed. She puts forward that the evidence shows that she has done nothing wrong; that she has suffered significant shame as a result of the dismissal; and that she will find it difficult to obtain employment again in a customer service role, which has been the focus of her employment, both as a result of the circumstances of her dismissal as well as her age, which is 57.

[113] Metro Trains submit that it would be inappropriate to reinstate Ms Kumari. The submission was made by Metro Trains in its closing arguments that this comes about for two reasons, firstly in relation to matters of trust and confidence, and secondly relating to Ms Kumari’s competence.

[114] In relation to matters of trust and confidence, it is put forward by Metro Trains that such has been lost in both directions, and that this became evident as a result of matters that arose in the course of the investigation and especially through the correspondence put forward by Mr Soeny in the course of the pre-dismissal dialogue. Broadly it is argued that the tone and content of the correspondence put forward on behalf of Ms Kumari made it clear that she no longer had any trust and confidence in Metro Trains, which at that time was still her employer. For example, when Mr Soeny complained that Ms Kumari’s confidentiality had been breached, he wrote that “[s]omeone in your management team has breached the confidentiality and now the reputation of my entire family is being trashed for which we hold Metro responsible” and that “[t]his does make me think that it was done deliberately to tarnish the image and reputation of all family members.” 68

[115] It is submitted by Metro Trains that the product of these exchanges is that Ms Kumari has indicated she no longer has any trust or confidence in her former employer and that as a result it too has lost trust and confidence in Ms Kumari’s ability to perform her work if she was reinstated.

[116] The other factor put forward by Metro Trains as a reason for Ms Kumari not to be reinstated is the argument that, if Ms Kumari’s evidence is to be believed and that there may well have been innocent mistakes on her part, then the sheer volume of them must reasonably indicate that she is incompetent and unable to perform her work, given that the overwhelming majority of other employees have nowhere near the level of errors that Ms Kumari had. In effect it is being argued that if most employees have one or two irregular transactions as a result of innocent mistakes then 88 can only be explained, if not by misconduct, then by sheer incompetence.

[117] The issue of when reinstatement is inappropriate and the related question of the need for trust and confidence between the parties was recently considered at length by the Full Bench of the Commission in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter. 69 In its decision, the Full Bench held that;

‘trust and confidence’ in this context it that which is essential to make an employment relationship workable, which is “not to be confused with an implied term in a contract of employment of mutual trust and confidence, the existence of which was recently eschewed by the High Court in Commonwealth Bank of Australia v Barker”; and

while “trust and confidence is a necessary ingredient in any employment relationship, it would be wrong to assume that it is the sole criterion or even a necessary one to determine whether or not reinstatement is appropriate”. 70 (references omitted)

[118] The Full Bench has also summarised the relevant principles to be followed in assessments of trust and confidence as follows;

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
• The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” 71 (references omitted)

[119] I am unpersuaded that there has been a mutual loss of trust and confidence that would make reinstatement of Ms Kumari to her former position inappropriate.

[120] An analysis of the material put forward on behalf of Ms Kumari in the course of the pre-dismissal processes indicates that her representative, her husband Mr Soeny, was certainly assertive and diligent in the propositions he desired to put forward on her behalf. He certainly wanted to advocate forcefully about the matters that were of concern to he and his wife, namely the allegations which had been made; their questions about those allegations and the evidence held by Metro Trains to support them; their objection to what they saw to be breaches of the requirement for confidentiality on the part of Metro Trains managers; and finally for access to CCTV footage of the events in question. On the face of the documents before the Commission and the evidence received from all the witnesses about these matters, there is nothing before me that would allow the formation of the view that at any time either Mr Soeny or Ms Kumari moved from strong advocacy to objectionable or offensive communication. The questions asked of Metro Trains may have been inconvenient to them and they may have been annoyed that Ms Kumari and Mr Soeny kept returning to the core arguments, however there is nothing within those communications as seen by the Commission that would allow a finding that those communications repudiated the expectation of trust and confidence on the part of Ms Kumari in her then employer. To the contrary, the communications show no lack of trust and confidence in Metro Trains on the part of Ms Kumari as an employee.

[121] I am satisfied in all the circumstances that it would be appropriate to reinstate Ms Kumari. There is no evidence before me that suggests Ms Kumari’s pre-dismissal position of station officer at Parliament Station is no longer in existence or otherwise not available to her, and so it is my decision that she be reinstated to that former position.

[122] Section 391(2) permits a discretionary decision on the part of the Commission to make an order maintaining the continuity of a reinstated person’s employment or the period of the person’s continuous service with the employer. Having considered all the evidence in the matter and taking into account my findings in relation to the circumstances of Ms Kumari’s dismissal, the effects of the dismissal on her health, and her age at the time of dismissal, I am persuaded that an order should be made both for the continuity of her employment as well as maintenance of her continuous service.

[123] Section 391(3) permits a further discretionary decision on the part of the Commission for an order that an employer pay a reinstated person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

[124] The section requires the Commission to take into account in making this decision the amount of any remuneration earned by them during the period subsequent to the termination as well as the amount of any remuneration reasonably likely to be earned by them between the making of the order and the actual reinstatement. The discretion within the provision is general in nature, and in considering such an order the Commission may properly take into account all of the circumstances in the matter, including the conduct of the applicant which led to the dismissal. 72

[125] The evidence includes that Ms Kumari has not earned any monies from employment after being dismissed by Metro Trains on 1 July 2016, a period of approximately seven months by the time this decision is published. Ms Kumari’s evidence in this regard is that she has been significantly ill, as well as potential employers being disinterested in a person of her age and skills having been dismissed for reason of misconduct, and ultimately for theft. That evidence is broadly capable of acceptance, however it should be noted that Ms Kumari’s evidence about endeavours to mitigate the loss was, at best, thin, with her relying entirely upon the two factors referred to.

[126] I consider it to be appropriate to make an order for lost remuneration. The circumstances of Ms Kumari’s dismissal, together with my findings about whether there was a valid reason for her dismissal, lead me to consider it appropriate for such an order.

[127] I am persuaded that in Ms Kumari’s circumstances she was too unwell to seek alternative employment and that the reason for her termination, coupled with her age, would have militated against employment by another employer. As a result I make no deduction for reason of Ms Kumari’s efforts to mitigate her loss after dismissal.

[128] In forming my view about the nature of an order for lost remuneration, I have also taken into account the extent to which Ms Kumari was cooperative with Metro Trains’ investigation and factors of confidentiality.

[129] Ms Kumari’s evidence when asked about the specifics of the allegations made was to largely brush them aside. Somewhat rhetorically she asked how can I respond to an allegation about something that I did not do? While that proposition certainly has some legitimacy to one in her position, however, the problem with Ms Kumari brushing aside as she did the questions put to her is that she must also be seen as having failed to engage in any meaningful way with what was being put to her. The very large numbers of irregular transactions demanded an investigation, and Ms Kumari had an obligation to assist. The questions of her in the course of the investigation were reasonable, if somewhat lacking in specifics. She had an obligation to let Metro Trains know as much as she knew about the circumstances of the matter, which extended to endeavouring to recollect the dates in question, as well as any knowledge she may have had of suspicious behaviour by others. Rather than endeavouring to remember a particular shift and a particular set of circumstances, and putting forward any defence that could reasonably be put forward, her response was simply to say that she could not respond. I do not consider that she informed Metro Trains as early as she could of all the knowledge she had.

[130] However, in respect of cooperation with the Metro Trains investigation into the alleged irregular transactions I consider she could and should have made greater efforts and that a reduction of one-quarter is warranted for this reason.

[131] Had Ms Kumari engaged fully with the investigation, even with her claims that one or more employees may have committed the fraud using her staff ID or that the irregularities were the product of an innocent mistake, it may have been that the Metro Trains management, acting reasonably, took a different course than the dismissal. She could have named at the time the people she suspected of fraud and could have provided particulars, after careful thought and analysis, about the days she remembered computer problems or having been careless with procedure. However, she did neither at the time. In this regard, I note that Ms Kumari did not name any person as having been suspected of fraud until well after these proceedings were commenced. There is no mention of the name of who she suspected in her witness statement, and a name appears not to arise until her solicitors wrote to the Metro Trains representative, Ms Gillam, on 23 December 2016. 73

[132] As a result, an order is issued by the Commission at the same time as this decision, requiring Metro Trains to reinstate Ms Kumari to the position of Station Officer Class 2 at Parliament Station; to maintain her continuity of her employment and her continuous service; and to pay her an amount for lost remuneration for the period between 1 July 2016 and the date on which she is reinstated, from which shall be deducted an amount of one-quarter of the total, with the payment to be taxed according to law. The order will require Ms Kumari’s reinstatement within 14 days from the date of this decision.

[133] In the course of closing submissions, it was put forward that Ms Kumari’s rate of pay at the time of dismissal was $33.3096 per hour for a 38 hour week and that the hourly rate increased to $33.8092 on 1 January 2017, and that at all relevant times Ms Kumari was entitled to be paid a further 9.5% of those rates for superannuation. The basis of the order for lost remuneration will be a calculation at these rates (including superannuation) for the entire period between dismissal and reinstatement, less one-quarter of the total. The parties are directed to confer and endeavour to agree the precise amount, and whether annual leave and long service leave paid out at the time of dismissal should be recredited to Ms Kumari and deducted from the total of the order. Liberty to apply is granted for the purposes of settling the final arrangements, in respect of the order for lost remuneration only.

COMMISSIONER

Appearances:

Mr J Fetter, of Counsel, instructed by Maurice Blackburn Lawyers, for the Applicant.

Ms J Gillam on behalf of the Respondent.

Hearing details:

2016.

Melbourne:

19, 20 January.

1 Exhibit A4, Witness Statement of Alka Kumari, Attachment 14.

2 [2013] FCA 291.

3 Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

4 Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869 [5].

5 Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 [19].

6 King v Patrick Projects Pty Ltd[2015] FWCFB 2679 [15].

7 Ibid [17].

8 Singh v Metro Trains Melbourne[2015] FWCFB 3502 [16].

9 King v Patrick Projects Pty Ltd[2015] FWCFB 2679 [18].

10 CEPU v UGL Resources Pty Limited (Project Aurora)[2012] FWA 2966.

11 Exhibit R4, Witness Statement of William Foster, [3]–[6].

12 Ibid [8]–[9].

13 Ibid [7].

14 Ibid [10]

15 Exhibit R2, Respondent's Outline of Submissions and Documents, Attachment EV-7.

16 Exhibit R4 [10].

17 Exhibit A4 Attachment 2b.

18 Ibid Attachments 11–13a.

19 Ibid Attachment 14.

20 Ibid Attachments 14a, 15.

21 Titan Plant Hire Pty Ltd v Van Malsen[2016] FWCFB 5520.

22 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

23 Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

24 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

25 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 [32]; He v Lewin [2004] FCAFC 161, (2004) 137 FCR 266 at [15].

26 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd[2015] FWCFB 8205 [22]-[23].

27 Edwards v Giudice (1999) 94 FCR 561 [6]-[7].

28 King v Freshmore (Vic) Pty Ltd (unreported) (2000) Print S4213 [24].

29 (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93].

30 Briginshaw v Briginshaw (1938) 60 CLR 336.

31 Ibid 362‒3.

32 Budd v Dampier Salt Ltd (2007) 166 IR 407 [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

33 Ibid.

34 Streeter v Telstra Corp Ltd (2008) 170 IR 1

35 Exhibit A4 Attachment 1.

36 Exhibit A5, Witness Statement of Amar Tomar, [6]-[9].

37 Exhibit A4 [13].

38 Exhibit R5 [26]-[27].

39 Ibid [26].

40 Exhibit R2 Attachment EV-4.

41 Exhibit A5 [7].

42 Exhibit A4 Extract from Attachment 5a.

43 Ibid Attachment 6.

44 Ibid Attachment 6a.

45 Ibid [13].

46 Ibid Attachment 7.

47 Ibid Attachment 8.

48 Ibid Attachment 9 [4]-[7].

49 Ibid Attachments 11, 12a.

50 Ibid Attachment 12.

51 Exhibit A3, Applicant's Outline of Submissions, [9].

52 Exhibit A4 Attachment 14.

53 Exhibit A5 [13].

54 See for example; Thomas v Newland Food Company[2013] FWC 8229 [42]–[43]; Kinnane v DP World Brisbane Pty Ltd[2014] FWC 4541 [136]; Harvey v GM Holden Ltd[2016] FWC 804 [62]–[63], [68]; Wessley v Toyota Motor Corporation Australia Limited[2016] FWC 8021 [16], [22].

55 Exhibit R5 [24].

56 Exhibit R6 [22].

57 Ibid [14].

58 Brinks Australia Pty Ltd v Transport Workers' Union of Australia (unreported) (2002) AIRC, Print PR922612.

59 Bernard Reynolds v Country Fire Authority (unreported) (2004) AIRC, Print PR950786.

60 A Smith & ors v Moore Paragon Australia Ltd (unreported) (2002), Print PR915674.

61 Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679 [41].

62 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty (2010) 204 IR 399 [85].

63 Form F3 – Employer Response to an Unfair Dismissal Application, item 1.7.

64 Exhibit A8, Witness Statement of Ashok Soeny, [2].

65 Exhibit A4 Attachment 7a.

66 Ibid Attachment 13.

67 Encyclopaedic Australian Legal Dictionary, LexisNexis, online edition, January 2017.

68 Exhibit A4 Attachment 3.

69 [2014] FWCFB 7198.

70 Ibid [23]-[24].

71 Ibid [27]-[28].

72 Kenley v JB Hi Fi (unreported) (2000) AIRCFB Print S7235 [36].

73 Exhibit A7, Correspondence between the Representatives, 23 December 2016 and 4 January 2017.

Printed by authority of the Commonwealth Government Printer

Alka Kumari v Metro Trains Melbourne