Applicant v Virgin Australia Airlines Pty Ltd (formerly Virgin Blue Airlines Pty Ltd t/a Virgin Blue Airlines)
[2011] FWA 5595
•30 AUGUST 2011
Note: An appeal pursuant to s.604 (C2011/5914) was lodged against this decision.
[2011] FWA 5595
The attached document replaces the document previously issued with the above code on
30 August 2011.
Yota Amanatidis
Associate to Commissioner Gooley
Dated 2 September 2011
[2011] FWA 5595 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Applicant
v
Virgin Australia Airlines Pty Ltd
(formerly Virgin Blue Airlines Pty Ltd t/a Virgin Blue Airlines)
(U2011/4958)
COMMISSIONER GOOLEY | MELBOURNE, 30 AUGUST 2011 |
Application for unfair dismissal remedy.
[1] The Applicant was employed by Virgin Australia Airlines Pty Ltd (the Respondent) as a flight attendant from 23 May 2005 until her employment was terminated on 28 January 2011.
[2] On 11 February 2011, the Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that she was unfairly dismissed. The application was referred to conciliation on 16 March 2011, and then for hearing on 4, 5 and 14 July 2011.
[3] The applicant represented herself and Mr Nick Le Mare, General Manager of the Respondent, appeared for the Respondent.
[4] The applicant gave evidence on her own behalf and Dr Bernard Hickey and Ms Eva Berta gave evidence for the Applicant. Ms Jennifer Murray, Ms Lauren Bates, Ms Stacey Van Der Meulen and Mr Matthew Lane gave evidence for the Respondent. All witnesses apart from Ms Berta were cross examined.
Jurisdiction of Fair Work Australia
[5] There is no dispute that the Applicant is a person who was protected from unfair dismissal. The Respondent is not a small business. Fair Work Australia has the jurisdiction to determine the application.
The termination
[6] The basic facts in this matter are not in dispute.
[7] On 16 November 2010 the Applicant was stood down on full pay pending an investigation into allegations of theft of company property. 1
[8] On 30 November 2010 the Respondent advised the Applicant of allegations that she had gained a personal financial benefit from the use of Virgin Blue’s staff travel by two of her nominated staff travel users. 2
[9] The applicant’s employment was terminated on 28 January 2011 for serious and wilful misconduct.
[10] The Respondent had determined that there was evidence that the Applicant had exploited the company’s staff travel process for her own financial gain and that she was found to be in possession of company property, namely two bottles of wine that she had not purchased. Both matters were viewed by the Respondent as a serious breach of company policy. 3
[11] The parties are in disagreement over both these allegations.
The wine allegation
[12] On 16 November 2011, the Applicant was on the last day of a three day roster. Ms Jennifer Murray was the Applicant’s cabin supervisor on this roster. The applicant had left her overnight bag in the Melbourne Cabin Crew storage area. 4 While the Applicant said she was directed by Ms Murray to leave her bag there, Ms Murray denied ever giving such a direction.5
[13] At the end of the shift Ms Murray took the Applicant’s bag home. Ms Murray said she did this by mistake. It was her evidence that she did not realise she had taken the wrong bag until she arrived home. It was her evidence that she was distracted when she collected the bag as she was speaking to her husband on the phone as she walked through the terminal. Her husband placed the bag in the car and put it in the house. It was Ms Murray’s evidence that whilst she was unpacking the bag she was talking on the phone. She unzipped the outer pocket of the bag and saw two bottles of wine. It was her evidence that she still did not realise the bag was not hers. She then got off the phone and opened the bag and realised it was not hers. She looked at the name tag and realised the bag belonged to the Applicant. 6 Ms Murray rang Virgin Blue and returned the bag to Ms Nikki Mennel who was the Applicant’s manager.7
[14] The applicant does not dispute that Ms Murray took her bag. It was her evidence that Ms Murray could not have mistaken the Applicant’s bag for her own. It was her evidence that her bag was located in a different part of the Cabin Crew storage area from the area where Ms Murray gave evidence that she had collected the bag. Further, it was her evidence that her bag was different to Ms Murray’s bag. Her bag was a four wheeled bag 8 while Ms Murray’s bag was two wheeled. Further, Ms Murray’s bag had a large metal union jack on the top handle. The applicant’s bag had a red and black ribbon on the handle. It was her evidence that her bag was a different shape, size and make to Ms Murray’s bag. It was also her evidence that her bag’s handle was broken and was always partly extended.
[15] The applicant has consistently denied putting two bottles of wine into her bag.
[16] The Respondent conducted an investigation of this incident. Ms Bates gave evidence about the investigation but was not present during the entire investigation. None of the staff who were present during the early part of the investigation were called to give evidence.
[17] The Applicant was advised that Virgin Blue property had been found in her bag and she was asked to open her bag. 9 The Applicant agreed but asked first to speak to Ms Carolyn Summers, from her union. Ms Summers then participated in the meeting via the telephone.10
[18] Ms Bates advised the Applicant of the allegations and again asked her to open her bag. 11 At this point the Applicant advised the Respondent that Ms Murray could not have taken her bag by mistake. The Applicant told the Respondent that she believed Ms Murray had taken her bag deliberately and that she was being set up.12
[19] Ms Summers asked whether the police should be involved so that the bottles could be fingerprinted but the Respondent advised that at this stage they were only trying to determine if an investigation was needed. 13
[20] Ms Bates gave evidence that the Applicant continued to refuse to open her bag as she wanted the police involved. 14 Ms Bates advised that the Respondent would not be involving the police.15
[21] Eventually Ms Bates directed the Applicant to open her bag and, after being given an undertaking that neither Ms Mennel nor Ms Bates would not to touch anything in the bag, the Applicant opened the top outer pocket. There were two bottles of wine in the outer pocket which were similar to the bottles of wine sold on Virgin Blue flights. 16
[22] The Applicant was given a letter advising her that she was being stood down on full pay whilst an investigation took place. 17
[23] Ms Bates gave evidence that she saw the Applicant’s bag which she said had no distinguishing features. She did not see Ms Murray’s bag. 18
[24] It was clear from Ms Bates’ witness statement that she never took the Applicant’s allegations about Ms Murray seriously. It was her evidence that she was familiar with the Applicant’s “employment history and thought that it was also relevant to her credibility.” 19
[25] Ms Bates knew that the Applicant had made a complaint about Ms Murray three years earlier but considered it had “been investigated and resolved and was not considered to be an open issue between the Applicant and Jenny. The two had not flown together since 2007.” 20
[26] Ms Bates also had regard to Ms Murray’s employment history. Ms Murray had had no formal written warnings and “she had no reason to believe that Jenny was not telling the truth.” 21
[27] There was no evidence that the Applicant’s allegation that Ms Murray could not have mistakenly taken the Applicant’s bag was ever investigated.
[28] Ms Bates gave evidence that the Respondent had established that the wine bottles had come from a batch of bottles that had been supplied to the Respondent. 22 However no audit of the flights undertaken by the Applicant on that day occurred to determine if the bottles came from a flight she had been on.23
[29] Ms Bates considered that the Applicant’s conduct during the interview including her refusal over a significant period of time to open her bag “was extremely odd and not consistent with the allegation of being set up.”
[30] Taking all these matters into account, Ms Bates formed the view that the Applicant had taken the wine bottles. 24
[31] The Applicant gave extensive evidence about her interactions with Ms Murray over the years. It was her evidence that Ms Murray was hostile towards her because she had filed complaints against her in 2007. 25 It was her evidence that the complaints were not properly investigated. Further it was her evidence that she had not flown with Ms Murray until the flights referred to in this decision and Ms Murray again bullied and harassed her. Further it was her evidence that since 2007 that each time she saw Ms Murray she “was given evil looks and ignored.” Further she gave evidence that she was bullied and harassed for claiming her entitlements under the industrial agreement.26
The staff travel policy allegations
[32] Ms Bates gave evidence that on 15 November 2010 Ms Gabrielle Western contacted the Respondent and told them she had been using a friend’s staff travel and had been charged a $50 booking fee. She asked what the booking fee was, as she had recently been told there was no fee. 27
[33] The Respondent decided to investigate this matter, as it was considered that the conduct, if it had occurred, was a serious breach of the staff travel policy.
[34] The Respondent’s staff travel policy provides for two benefits:
Group 1 - for the staff member and one companion and is $1000 credit free each FBT year
Group 2- staff may nominate a further four family members or friends. Staff are allocated 32 sectors per year at staff travel rates. The fares are inclusive of all costs and taxes. 28
[35] The policy states:
“Virgin Blue provides staff travel for your loved ones to enjoy the benefit of your employment with this airline. Selling staff travel tickets or otherwise trying to derive a personal benefit from staff travel is against the spirit of the system. It is revenue diluting and is viewed as serious misconduct. As a minimum your privileges may be suspended or terminated, where deception is involved it could lead to the termination of your employment.” 29
[36] As part of the investigation the Respondent was able to determine that Ms Western was one of the Applicant’s nominated friends. 30
[37] The Respondent then interrogated the Applicant’s email account and found a number of emails between Ms Western and the Applicant as well as another friend Mr Manning. 31
[38] The Respondent contended that those emails disclosed that the Applicant had charged Ms Western and Mr Manning a $50 booking fee for booking staff travel flights for them.
[39] On 30 November 2010 Ms Western forwarded an email to the Respondent which included a copy of the Applicant’s last email about this matter. In that email the Applicant had provided to Ms Western an email from staff travel. The Respondent formed the view that the Applicant had deliberately falsified this email. 32 The original email said “Hi ..... , the fee for a phone booking is $20 per person.” 33 The email sent to Ms Western by the Applicant said “Hi .... , the fee for booking is $20.00 per person.”34 Ms Bates described this as a deliberate falsification by the Applicant.35
[40] The investigation established that all the Applicant’s staff travel had been done on line and no fees had ever been charged. 36 Further Ms Bates stated that if a phone booking is done then the $20 fee is added to the costs of the flights which are paid by the traveller by credit card and not deducted from the employee’s pay.37
[41] Further Ms Bates gave evidence that Fringe Benefits Tax (FBT) is paid by the employer not the employee and that the Applicant has never had a reportable FBT amount and the Respondent sets it discounted staff travel fares to ensure the fares do not attract FBT. 38
[42] On 29 November 2010, Ms Bates advised the Applicant of the staff travel allegation and invited a response to those allegations by return email on 1 December 2010 and advised that there would be a meeting on 2 December 2010 to discuss the allegations.
The Applicant’s response to the staff travel allegations
[43] The Applicant admitted that she had allowed Ms Western access to her staff travel. It was her evidence that she first discussed this with Ms Western in April 2009. 39 She says she told Ms Western that she would need to get taxation advice from her accountant to find out if it would affect her tax.40
[44] She contacted her accountant on 24 April 2009 who told her she would need to make an appointment and there would be a fee of $140. 41
[45] Ms Western then sought to access staff travel on 29 April 2010. It should be noted that while friends and family can use staff travel the booking must be made by the staff member.
[46] Because she was having trouble with the online system the Applicant called Ms Western and told her she may need to ring staff travel and a fee may be charged. Ms Western told her to make the booking. 42
[47] While the Applicant did contact staff travel, Virgin Blue IT was able to resolve the online problem. Ms Western then cancelled the booking and the Applicant contacted staff travel to cancel the booking. The Applicant said she did not ask staff travel if a fee would be charged. She said that she had been told by other crew that fees were deducted from pays. She said she had never booked directly with staff travel before but the online facility did not involve a fee. 43
[48] A booking was made for Ms Western and the Applicant sent her an email in which she said “I may have to pay an admin fee and FBT (tax) -not to worry though.” 44
[49] The Applicant had a subsequent telephone conversation with Ms Western. Ms Western asked to use the Applicant’s staff travel again. The Applicant told her that her accountant would not give her advice for free and it would cost $140. The Applicant said that Ms Western agreed to reimburse her the accountant’s fee, her travel costs to see the accountant and any other expenses incurred in arranging the travel. 45
[50] On 25 May 2009, the Applicant sent Ms Western a letter confirming that arrangement. That letter said “In relation to the accountant’s fee of $140, FBT, travel, phone, internet and any other costs to arrange your ongoing travel you agreed to reimburse me when we spoke in Adelaide last week. I do not know at the moment what these expenses will total, we can agree on a figure later.” 46
[51] On 5 June 2009 the Applicant met her accountant who told her that staff travel both free and discounted fares could attract FBT. She was told if the total benefits exceeded $2000 in an FBT year then this must be recorded on her group certificate. 47
[52] She was also told that her reportable fringe benefits amount would affect her family tax benefit and Medicare levy liability. 48
[53] In July 2009 Ms Western asked the Applicant if she had been charged the booking fee that she had mentioned in her letter and she asked how much it was. The Applicant told her that she was not aware if it was charged and not to worry about it. She told her the fee used to be $10 but she had been told it was now $20. 49
[54] The Applicant said that Ms Western offered to pay her “a nominal amount of $50 for each booking to cover any out of pocket expenses” and on 7 November 2009, $50 was paid to the Applicant. 50
[55] In August 2009 the Applicant organised another booking for Ms Western. Ms Western called staff travel on 2 October 2009 to cancel the booking. The Applicant said that Ms Western did not tell her she had done this. The Applicant then rebooked another flight for Ms Western. 51
[56] In August 2009 there were emails between the Applicant and Mr Western (Ms Western’s partner) in which he advised her that he had transferred money to her account for staff flight bookings. 52
[57] In November 2009 the Applicant said she still required payment “for the booking that Gabby used on 9 May 2009.” 53
[58] In August 2010 the Applicant again booked flights for Ms Western but cancelled them at Ms Western’s request. The Applicant was then advised by Ms Western that she had called staff travel to change some of her flights. This was contrary to the staff travel policy. Because of her concerns that she would be disciplined for this, the Applicant removed Ms Western as a beneficiary of her staff travel. 54
[59] In November 2010 the Applicant told Ms Western she would not continue to book flights for her. She also told Ms Western that her call to staff travel would probably result in the Applicant having to pay a booking fee. Ms Western intimated to the Applicant that she doubted there would be a fee and made reference to the $50. Ms Western advised the Applicant that she had spoken to other Virgin staff and there were no taxes. 55
[60] On 9 November 2010 the Applicant asked staff travel about fees. The Applicant did not attach this email to her statement. 56 The email sent to and from staff travel was referred to in paragraph [39]. That email advised the Applicant that the cost per phone booking was $20.57
[61] The Applicant sent Ms Western an email on 14 November 2010 and she stated “there is a booking fee per person.” 58 She further stated that she thought the fees were deducted from her wages. She also said that she was not sure if FBT is deducted. She also told Ms Western that she would not be able to use her staff travel again.59
[62] On 16 November 2010 Ms Western replied to this email and advised the Applicant that she had been told that there was no charge if the online system was used. She also said there was no FBT payable. She asked the Applicant to contact staff travel to find out what $20 fees had been charged. She also said that if there was no $20 fee or FBT then she thought it would be fair “that I be refunded the 4x$50 ($200) total I paid you for the bookings.” 60
[63] On 17 November 2010 the Applicant replied that Ms Western knew the costs involved when she used her staff travel and that Ms Western had been happy with that arrangement. 61 The Applicant advised that she did not want to discuss the matter further as she was dealing with some serious personal issues. By this time the Applicant had been stood down because of the theft allegations.
[64] Ms Western replied stating that she agreed to pay a $50 booking fee “as you had told me Virgin staff travel introduced this fee in July 2009.” Further she stated, that unlike the Applicant’s description of how the arrangement came about, the Applicant had rung her “and offered your travel benefit to me, without me prompting you.” She further alleged that the Applicant “decided to charge [her] a $50 booking fee to profit from your staff benefits.....[Her] understanding from you was the $50 booking fee I paid you for each flight was to reimburse you for a cost you had incurred from staff travel.” 62
[65] Ms Western told the Applicant that Virgin Blue were asking for information from her and told the Applicant that she had not provided it but she wanted a refund of the $200. She told the Applicant that Virgin were willing to refund her $200. She denied that she was asked to reimburse the Applicant for her time. 63
[66] On 26 November 2010 Ms Western followed up with Virgin seeking her refund and on 30 November 2010 forwarded to Virgin copies of the emails between her and the Applicant. 64
[67] On 7 January 2011 Ms Western told the Applicant that the only way to resolve the matter was for the Applicant to either provide written evidence that she incurred a $50 fee per flight or refund her the $200. 65
[68] On 7 January 2011, the Applicant advised Ms Western that she would send her the accountants invoice and told her that if there was an overcharge she would refund her.
[69] The Applicant denied she breached the staff travel policy when she charged Ms Western for out of pocket expenses.
[70] In 9 May 2010 the Applicant sent Mr Manning an email headed travel. The Applicant said “as discussed there is a $50 fee per person ($200 total)”. She advised him that she would email the total cost of his tickets and booking. 66 The Applicant booked four tickets for Mr Manning and his family at a later date.
[71] The Applicant denied charging Mr Manning a booking fee. Mr Manning wrote to Virgin on 30 November 2010 in which he advised that four families had paid $50 per family towards catering and a present for the Applicant’s husband’s birthday. He denied paying her for the tickets. 67 A copy of his letter was sent to the Applicant. While this letter was allegedly sent to the Respondent it had not been received prior to the decision being made to terminate the Applicant’s employment.
[72] An affidavit of Ms Eva Berta was tendered without objection. Ms Berta was not required for cross examination. She said that she overheard a telephone conversation between the Applicant and Ms Western on 14 May 2009. She said she could hear Ms Western speaking to the Applicant. She said Ms Western asked the Applicant if she could use her staff travel again. The Applicant told her that her accountant had told her it would cost $140 to get the advice. Ms Berta said that Ms Western offered to pay the accountant’s fee and any other expenses with using the staff travel. 68
The termination process
[73] Having been stood down over the theft allegations, the Applicant, on 28 November 2010, sent the Respondent an email advising that she was in dispute with the Respondent over being stood down and requested that Ms Mennel play no role in the investigation. 69 She advised that she was suffering work related stress.
[74] On 30 November 2010 the Applicant advised Ms Bates that she had accessed the Employee Assistance Program and advised that the email “serves as a formal KOWF Complaint of Bullying, the most serious being “interfering with personal property and work equipment.” 70 This latter matter referred to the Applicant’s allegation that Ms Murray had taken her toiletries bag from her overnight bag when Ms Murray had taken her bag. She further advised that she was making contact with WorkSafe.71
[75] On 30 November 2010 the Applicant received the email outlining the staff travel allegations and requested an extension of time to respond to the allegations. 72 The Applicant was then given to 6 December 2010 to respond and the meeting was set for 7 December 2010.73
[76] On 1 December 2010 Ms Bates acknowledged the Applicant’s complaint. 74
[77] The Applicant advised that she lodged a formal complaint with her union, the Respondent and WorkSafe outlining 20 separate incidents of bullying, harassment and victimisation in the workplace. 75
[78] On 5 December 2010 the Applicant advised Ms Bates that she had been referred to a Psychiatrist and the Psychiatrist had issued her with a certificate of capacity which stated that she was totally incapacitated and was unable to take on any work related tasks. She advised that as a consequence she was unable to respond to allegations. She also requested a WorkCover claim form. 76
[79] On 6 December 2010 Ms Bates advised that subject to the receipt of the medical certificate and the workers compensation process commencing the “Fair Go” process would be put on hold. 77
[80] On 4 January 2011 Mr Lane was appointed Manager Cabin Crew.
[81] On 12 January 2011 the Applicant received an email from Mr Lane seeking a response to the two allegations by 16 January 2011. That email advised the Applicant that if the allegations were substantiated disciplinary action, including termination of her employment was possible. He also advised that given she was unwell they would continue to communicate in writing but if she wanted to meet that could be arranged. She was also advised that if she did not respond a decision would be made on the information currently before him. 78
[82] On 14 January 2011 the Applicant’s Psychiatrist, Dr Hickey wrote to the Respondent advising that the Applicant was unfit for any work duties and that she was unable to respond by 16 January 2011. 79
[83] On 22 January 2011 Mr Lane sent a further letter to the Applicant requiring her to respond to the allegations by 25 January 2011. That letter asked the Applicant to show cause why her employment should not be terminated. 80
[84] At the hearing, the Applicant produced certificates of capacity which had been provided for the relevant period to the Respondent which dealt with her physical injuries and her mental injuries. A certificate of capacity signed by Dr Hickey advised that the Applicant was unfit for any duties from 6 January 2011 to 3 February 2011. It advised that the next review date was 20 January 2011. 81
[85] On 24 January 2011 the Applicant responded to Mr Lane’s letter. In that letter she alerted Mr Lane to Dr Hickey’s correspondence and that she was ill and not able to respond to his letter. She advised Mr Lane that she did not place the wine in her bag and advised him that someone else must have placed the wine in her bag. She also advised him that she “was in the process of uncovering evidence to assure Virgin Blue that she did not gain financially from booking staff travel. She advised Mr Lane that she had a letter from one of her Group 2 travellers clearing her name. She did not however attach this letter to her email. She asked for a “reasonable timeframe” to respond to the allegations. 82
[86] Dr Hickey gave evidence 83 and was cross examined. He had provided advice to the Respondent on 14 January 2011 that the Applicant was not fit to adequately respond to the allegations put to her. It was his evidence that the Applicant was not fit for duty from 3 December 2011 and in his report of 24 February 2011 he advised that the Applicant suffered serious depressive symptoms as well as post traumatic stress disorder and that she was not likely to recover for several months.
The decision to terminate the Applicant’s employment
[87] On 28 January 2011 the Respondent sent a letter to the Applicant terminating her employment.
[88] Mr Lane advised the Applicant that, despite the Applicant on 24 January 2011 advising that she would provide additional information, no additional information was provided.
[89] Mr Lane accused the Applicant of not cooperating with the Respondent in their attempts to resolve the matter. Mr Lane advised that the allegations had been substantiated and that her employment would be terminated for serious misconduct. 84
[90] Mr Lane gave evidence that in her response of 24 January 2011, the Applicant had not provided a medical certificate to him or any further letter from Dr Hickey that she was unfit to respond to the show cause letter. 85 Mr Lane formed the view that, because of the Applicant’s detailed written correspondence with the Respondent since 16 November 2010, she was capable of responding to the allegations.86 He determined that given the serious nature of the allegations that a decision needed to be made and that the Applicant had had sufficient opportunity to respond to the allegations. 87
[91] Mr Lane formed the view that the only reasonable explanation for the presence of the two wine bottles in the Applicant’s bag was that she had taken the wine bottles and placed them in her bag. 88 He said he was aware of a five hour standoff on 16 November 2010 during which the Applicant refused to open her bag.89 Mr Lane said he did not accept that Ms Murray or any other crew member had placed the wine in the Applicant’s bag. His reasons were that such action would have been risky as they could have been caught. He did not consider that anyone would go to those lengths to set up the Applicant. He accepted Ms Murray’s explanation about what happened on 16 November 2011.90
[92] He was aware of the Applicant’s complaints against Ms Murray and took that history into account but dismissed it because it had occurred three years earlier and had been resolved. 91
[93] A significant matter in Mr Lane’s conclusion that the Applicant had taken the wine, was the Applicant’s refusal to open her bag and her behaviour that day. He concluded that her actions were not those of someone “who genuinely believed there was nothing in her bag.” 92 He concluded the allegations were substantiated.
[94] In relation to the staff travel allegations he concluded that the Applicant had received a financial benefit. He relied upon the email trail and the altered email to Ms Western which he considered showed that the Applicant was deliberately trying to deceive Ms Western. 93 Mr Lane did not receive any letter from Mr Manning in which he denied being charged a fee and neither did anyone else.
[95] Mr Lane gave evidence that the Applicant’s explanation about why Ms Western paid her money was irrelevant because the staff travel policy did not in any event permit employees to recover out of pocket expenses. 94
[96] Mr Lane gave evidence that he did not know at the time the Applicant’s employment was terminated that she had made a complaint to WorkSafe. 95
Submissions of the Applicant
[97] The Applicant submitted that as she had not taken the bottles of wine and had not breached the staff travel policy she was not guilty of serious misconduct.
[98] The Applicant submitted that Ms Murray was an unreliable witness and that the Applicant’s evidence should be preferred. 96 In support of this submission the Applicant referred to Ms Murray’s explanation that she had not noticed that the bag she had taken home was not her bag due to being distracted by other matters. The Applicant submitted that this explanation was not credible and should not be accepted because of the difference between the bags. She further submitted that the location of the bottles in the bag showed that the wine bottles had recently been placed in the bag. The Applicant also submitted that Ms Murray was an unreliable witness because she breached company policy and had overestimated her period of time as a supervisor. The Applicant submitted that Ms Murray set her up and that this was another example of a long line of harassing events by Ms Murray over the previous years.97
[99] The Applicant submitted that the Respondent did not properly review her employment file and if they had done so they would have seen that the Applicant disputed the warnings issued to her. 98 The Applicant submitted that when Ms Bates decided to believe Ms Murray’s version of events over the Applicant’s version because of their employment history, she was unreasonable. A proper reading of the Applicant’s employment record would not have supported the conclusion that she was guilty of taking the bottles of wine.
[100] The Applicant further submitted that regard should have been had to her bullying complaint. While Mr Lane denied knowing about her complaints the Applicant submitted that Ms Bates gave evidence that she told Mr Lane about the complaints. 99
[101] The Applicant submitted that the Respondent failed to conduct a thorough investigation into the wine allegation. She submitted that the Respondent refused police involvement, did not fingerprint the bottles and did not have any eyewitnesses to substantiate the allegations. 100 Further they did not interview Ms Drayton who was a crew member on the flight. The Applicant submitted that the Respondent relied only on Ms Murray’s evidence. She submitted that Ms Murray did not see her take the wine. Further the Applicant submitted that Ms Murray’s personal animosity towards her was not taken into account. Nor did the Respondent have regard to Ms Murray’s employment record when it was decided that she was to be believed.
[102] The Applicant also submitted that the Respondent did not conduct an audit of the company carts to determine if wine was taken from the aircrafts the Applicant operated during the three day trip. 101
[103] Further no comparison was made of Ms Murray’s bag and the Applicant’s bag and Ms Murray’s contention that she took the bag by mistake and did not notice that it was not her bag was not investigated. 102
[104] The Applicant submitted that the staff travel policy does not stipulate that out of pocket expenses cannot be reimbursed. 103 The Applicant submitted that she did not derive a personal benefit because to benefit is to profit and a profit is a financial gain. The Applicant submitted that her evidence showed that her expenses were in excess of the money she received and therefore she did not make a financial benefit and therefore did not breach the policy.104
[105] The Applicant submitted that Ms Bates was equivocal about whether reimbursement of out of pocket expenses was a breach of policy. 105
[106] Further the Applicant submitted that little regard should be had to Mr Western’s emails as she did not speak to him about her arrangements with Ms Western. Further she submitted that the amount was clearly not a booking fee as the Applicant only booked three flights for Ms Western and Ms Western paid her $200. 106
[107] The Applicant submitted that her agreement with Ms Western that she pay for out of pocket expenses was supported by the uncontested evidence of Ms Berta who said that she overheard the telephone conversation between the Applicant and Ms Western on 14 May 2009. She said she could hear Ms Western speaking to the Applicant. She said Ms Western asked the Applicant if she could use her staff travel again. The Applicant told her that her accountant had told her it would cost $140 to get the advice. Ms Berta said that Ms Western offered to pay the accountant’s fee and any other expenses with using the staff travel. 107
[108] The Applicant submitted that Mr Manning had made it clear in his letter of 30 November 2010 that the amount referred to in his email was not a booking fee. The Applicant said this letter was mailed to the Respondent and the Applicant does not accept that it was not received by the Respondent and submitted that Ms Mennel did not provide it to Mr Lane. 108
[109] The Applicant submitted that her concerns about FBT were legitimate and it was legitimate for her to get independent taxation advice. The Applicant submitted that she received no direct benefit from this advice as her own use of staff travel would not have exceeded the FBT limit. 109 Further the Applicant submitted that there was nothing in the staff travel policy that advised employees that their use of staff travel would not be subject to FBT.110 Had that advice been provided she would not have needed independent advice.
[110] The Applicant submitted that during the investigation, no personal contact was made with either Ms Western or Mr Manning and that should have occurred. Further the Applicant submitted that given she had advised Mr Lane that she had correspondence that cleared her of wrong doing, he should have asked her for the letter. 111
[111] The Applicant also submitted that Mr Lane knew she was unwell. The Applicant submitted that Mr Lane should have made contact with Dr Hickey to discuss her condition. She further submitted that Mr Lane knew she was on WorkCover for work related stress and depression as well as physical injuries. Because of this Mr Lane was able to speak to Dr Hickey about the Applicant’s condition and he did not do so. 112
[112] The Applicant submitted that she was given insufficient time to respond to the allegations. 113 She further submitted that Mr Lane terminated her employment whilst she was incapacitated both mentally and physically.
[113] The Applicant submitted that as she was terminated for serious misconduct she was not provided with a reasonable opportunity to discuss the dismissal or to arrange to have a support person present.
[114] The Applicant seeks reinstatement of her employment. She submits that she has been severely depressed since the termination of her employment. It is not clear if the Applicant is currently fit to work.
Submissions of the Respondent
[115] The Respondent submitted that the Applicant was not a credible witness. The Applicant in answer to the question “have you ever been accused of stealing before” answered “no”. 114 When questioned again her answer was “no”. The Applicant subsequently admitted that she was a defendant in a criminal matter in which she had been charged with stealing but had been found not guilty. While the Applicant said in re-examination that she had misinterpreted the question, the Respondent submitted that the Applicant was not a truthful witness and her evidence should not be preferred unless independently verified.115
[116] The Respondent submitted that its witnesses should be regarded as credible witnesses. The Respondent accepted that Ms Murray was a defensive witness during cross examination. It was submitted that this was understandable as she was being cross examined by the person who had accused her of planting two bottles of wine, stealing her toiletries bag, and who had made complaints against her to WorkSafe and to the Victorian Equal Opportunity and Human Rights Commissions. Further it was submitted that during cross examination, the Applicant attacked Ms Murray’s character including dredging up old events. 116
[117] The Respondent submitted that much of the Applicant’s evidence about incidents that occurred in 2007 was irrelevant. The Respondent also submitted that the evidence of Ms Drayton and evidence adduced in cross examination and some exhibits were irrelevant. 117
[118] The Respondent submitted that the evidence supports a finding that the Applicant did charge Mr Manning and Ms Western a $50 per booking when they used her staff travel.
[119] The Respondent submitted that the use of the word “fee” in Mr Manning’s email shows that the monies paid were not paid for other purposes. The Respondent submitted that an adverse inference should be drawn from the Applicant’s failure to call Mr Manning to give evidence as his evidence was critical to her case. The Respondent submitted that it should be inferred from her failure to call Mr Manning that Mr Manning’s evidence would not have supported the Applicant’s case. 118
[120] It was submitted that if Fair Work Australia finds that Mr Manning was charged a fee then the Applicant had attempted to deceive the Respondent and Fair Work Australia. 119
[121] The Respondent submitted that the Applicant’s evidence about an agreement between her and Ms Western to reimburse costs should not be believed but even if there was such an agreement it would still be a breach of the staff travel policy.
[122] The Respondent submitted that the expression “personal benefit” is not limited to making a profit and it includes any benefit obtained by the staff member. 120
[123] The Respondent submitted that the Applicant’s claim that the $50 charged to Ms Western was not linked to a particular booking should not be accepted as the Applicant herself linked the $50 fee to bookings. 121
[124] The Respondent submitted that the Applicant falsified an email in response to Ms Western’s questions about the booking fee. While the Applicant asserted that the Respondent’s IT department had access to her emails and denied falsifying the email the Respondent submitted she should not be believed. To support this, the Respondent submitted that the Applicant had been selective in the emails she had provided to Fair Work Australia. 122
[125] The Respondent submitted that the Applicant’s explanation for the monies paid by Ms Western are not credible. It submitted that there was no fringe benefits payable by the Applicant. Further the Applicant did not charge Ms Western for out of pocket expenses as they arose and she only calculated the amount after her employment was terminated. 123
[126] The Respondent also submitted that Fair Work Australia should infer from the fact that the Applicant did not subpoena Ms Western as a witness, that her evidence would have been unfavourable to the Applicant. 124
[127] The Respondent submitted that it formed a reasonable view based on the evidence that it was more likely than not that the Applicant had taken the wine bottles. 125
[128] Mr Lane relied upon Ms Murray’s evidence and the refusal of the Applicant to open her bag for an extended period of time. 126 Further the Respondent made reference to the decision of the Applicant to contact her union to find out what her rights were.127 This conduct, it was submitted, is not consistent with her assertion that she did not steal the wine.128
[129] The Respondent submitted that the Applicant’s contention that Ms Murray deliberately took her bag and placed wine in her bag was fanciful. 129
[130] The Respondent further submitted that if Fair Work Australia finds that the Applicant took the wine then it must also find that the Applicant concocted a story to implicate Ms Murray. 130
[131] The Respondent contended it had a valid reason for the termination of the Applicant’s employment. It submitted that a finding against the Applicant on any one of the allegations would provide the basis for finding there was a valid reason for the termination of her employment. If Fair Work Australia finds against the Applicant in respect of any one of the allegations then Fair Work Australia should also find that the Applicant engaged in a pattern of deception. 131
[132] The Respondent submitted that the Applicant was notified of the allegations and given an opportunity to respond. The Respondent submitted that the employer’s obligation is to provide the opportunity to respond, it is not their responsibility to ensure the employee does respond. 132 The Applicant was notified of the reasons for her termination.
[133] The Respondent submitted that the Applicant’s submissions that she was not fit to respond should be rejected. The Respondent submitted that Dr Hickey’s evidence was overly conservative 133 and that it is inconsistent with the facts. To support this submission the Respondent relies upon the evidence of what the Applicant actually did during this period.134
[134] The Respondent submitted that the Applicant responded to the allegations and her response has remained unchanged throughout. 135
[135] Further the Respondent submitted that even if there were procedural defects, given the serious nature of the allegations, the outcome should be the same. 136
Was the termination of employment unfair?
[136] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:
s387(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);
[137] Clearly a finding that an employee took property from his or her employer and lied about doing so may provide a valid reason for the termination of his or her employment. Similarly a finding that an employee had breached company policy and lied about doing so may provide a valid reason for the termination of employment.
[138] In this matter, even if one of the allegations is not proved on the balance of probabilities, if the other allegation is proved, it by itself could provide a valid reason for the termination of the Applicant’s employment.
[139] I have not found the Applicant to be a credible witness at all times. I accept the submissions of the Respondent that the Applicant’s response to Mr Le Mare’s question about being accused of theft was untrue. The Applicant explained that she interpreted that question as asking if she had ever been convicted of theft. 137 I do not accept her explanation. Mr Le Mare’s question was carefully put and the Applicant sought clarification about the question from Mr Le Mare before she answered the question. I consider therefore that the Applicant’s evidence was not as frank as it should have been. Therefore in relation to the staff travel allegations I have given more weight to the emails than the Applicant’s oral evidence.
The staff travel allegations
[140] I do not accept the Applicant’s submissions that she did not breach the staff travel policy which provides that staff may not obtain a financial benefit from allowing others to use staff travel.
[141] The Applicant claimed that Mr Manning was not charged a booking fee. I do not accept her evidence that the monies paid to her was a contribution towards expenses and a present for her husband’s birthday. I do not accept this evidence as it is inconsistent with the email exchange between the Applicant and Mr Manning. The Applicant’s email to Mr Manning is headed “travel" and makes it clear that there is a $50 fee per person. I do not accept the Applicant’s explanation that she calls everything a fee. 138 Mr Manning’s response makes no reference to any birthday celebration. Mr Manning was not called by the Applicant to give evidence on this critical matter.
[142] The Applicant could have arranged for Mr Manning to file an affidavit or if he was unwilling to do so could have sought that he be summonsed to appear. While the Applicant represented herself in these proceedings she was able to have an affidavit provided by another witness and to have a summons to appear issued to another witness. I infer from her failure to call Mr Manning to give evidence on her behalf that his evidence would not have supported her case.
[143] Both the Respondent and the Applicant submitted that a similar inference should be drawn from the failure of the other party to call Ms Western. It is true that Ms Western’s evidence could have supported either the Applicant’s evidence or the submissions of the Respondent. I am not prepared to draw an inference in relation to failure of either party to call Ms Western.
[144] I am further not able to accept the Applicant’s explanation about her arrangement with Ms Western. The Applicant claims that there was an agreement that Ms Western reimburse her out of pocket expenses. The only reference to that agreement is in a letter sent to Ms Western on 25 May 2009. This appears to be the only correspondence between these parties which was sent by mail. All other correspondence occurs by email. There is no evidence that Ms Western received the letter.
[145] In her own email to Mr Western sent in November 2009 the Applicant links the payment of the $50 to particular flights. After Mr Western inquired whether he “missed paying [her] for one of the bookings?” The Applicant wrote “I have worked out that I still require a payment for the booking that Gabby used on 9/5/2009..........The other two in Aug & Oct are fine I have checked my statements and I have received those ones, its just the one in May that is outstanding.”
[146] The Applicant makes no reference to reimbursement of expenses in that email.
[147] Further the Applicant claimed that she did not know what fees the Respondent charged for staff travel. If she was unaware of the amount of the fees in the period from April 2009 to October 2010 she made no inquires about the fees. I do not accept this evidence. The Applicant has been employed by the Respondent since 2005 and has not been charged a fee for using staff travel. She gave evidence that she knew that there was no fee for online bookings. 139 Yet in her email to Ms Western on 14 November 2010 she told Ms Western “my past experience is that a fee is charged.”140 Ms Western’s email says that “you told me Virgin has introduced a $50 booking fee for staff travel commencing July 2009.” In her response to Ms Western’s complaints the Applicant does not respond to Ms Western’s matters she simply pointed to the benefits Ms Western had from using her staff travel and that Ms Western had agreed to pay the amount.
[148] I accept the submissions of the Respondent that the Applicant deliberately deceived Ms Western about the circumstances in which fees were charged by the Respondent by altering the email sent by staff travel.
[149] While I do not accept the submissions of the Respondent that an employee who was reimbursed actual costs associated with making bookings would be in breach of the staff travel policy, I do not accept the Applicant’s claim that the amount she charged Ms Western was to reimburse her costs. The Applicant did not, during the period that Ms Western was using her staff travel, itemise her costs to Ms Western. Her calculations were made after the termination of her employment.
[150] In any event no such arrangement was made with Mr Manning and he was also required to pay $50 booking fee per person.
[151] On the evidence before me I have concluded that on the balance of probabilities that the Applicant charged Mr Manning and Ms Western $50 per booking made and that in doing so she breached the staff travel policy.
[152] Having concluded that the Applicant did in fact charge Ms Western and Mr Manning a $50 fee per booking I must conclude that the Applicant’s response to her employer’s letter of 24 January 2011 that she did not gain financially from booking staff travel was untrue. Given my findings I must also conclude that the Applicant’s evidence on this subject before Fair Work Australia was untrue.
The wine allegation
[153] On the evidence before me I am unable on the balance of probabilities to conclude that the Applicant took the bottles of wine. The applicant’s bag was not in her possession for a significant period of time. Anyone could have placed the wine in her bag.
[154] I did not find Ms Murray to be a credible witness. While I accept the submissions of the Respondent that Ms Murray may have, in part, been responding to being cross-examined by the very person who had made complaints about her and reported her to police, I found her a very unconvincing witness.
[155] Further I do not accept the submissions and evidence of the Respondent that the Applicant’s refusal to open her bag indicated that she knew she had something to hide. 141 The Applicant had already been told there was Virgin property in her bag when she refused to initially open her bag. It is unlikely that an employee who had stolen wine would insist on her employer calling the police. Yet this is what the Applicant did.142 I also do not consider her request to have a union representative present to be relevant to any assessment of the allegations.
[156] I do not consider that the Respondent conducted a satisfactory investigation into this allegation. There was no evidence that the Respondent investigated Ms Murray’s claim that she had mistakenly taken the bag. Had the Applicant been questioned at the time about where she had left her bag and Ms Murray been questioned about where she had taken the bag from, a discrepancy would have been noted. Further if the Applicant’s bag had been compared to Ms Murray’s bag, it would have raised the obvious question, how did Ms Murray wheel the Applicant’s four wheeled bag out to the car without noticing that it was not her two wheeled bag. It appears that the investigators took the view that all that needed to be established was that there were wine bottles in the Applicant’s bag and that the wine bottles came from a batch supplied to Virgin.
[157] I also do not consider that the Applicant’s earlier warnings are relevant to her credibility. None of the matters raised in those complaints supported a finding that the Applicant was dishonest. I do not consider that the Respondent was properly able to conclude that the Applicant’s belief that she was set up was fanciful. By ignoring the past antagonisms between the employees the Respondent failed to properly investigate the Applicant’s version of events.
[158] I have found that the Applicant breached the staff travel policy in charging Mr Manning and Ms Western for access to staff travel. I further have found that she deceived Ms Western about the existence of a booking fee. I have also found that the Applicant was not open with the Respondent when questioned about these allegations. While this was not the only reason for the termination of the Applicant’s employment by itself it is a valid reason for the termination of her employment.
s387(b) whether the Applicant was notified of that reason;
[159] The Applicant was notified of the reasons for the termination of her employment and she was notified prior to the decision being made to terminate her employment.
s387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[160] While the Applicant was given an opportunity to respond to the allegations the Respondent had no regard to the Applicant’s medical condition during this time. At all times the Respondent had certificates of capacity which indicated the Applicant was unfit. They had a psychiatrist’s advice that she was incapable of responding. I consider that the Applicant was not given a reasonable opportunity to respond.
s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;
[161] The Applicant was permitted to have representation at the original meeting and no subsequent meetings took place. To the extent that discussions took place by email the Applicant said she was assisted by her representative.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether the Applicant had been warned about that unsatisfactory performance before the dismissal;
[162] The Applicant was not dismissed for unsatisfactory performance.
s387(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;
[163] The Respondent is a large employer and no submissions were made on this criterion.
s387(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;
[164] No submissions were made on this criterion.
s387(h) any other matters that FWA considers relevant.
[165] No submissions were made that there were other matters that the Tribunal should have regard to.
Conclusion
[166] It is clear that the Respondent in deciding to terminate the Applicant’s employment had regard to both allegations which it had determined against the Applicant. I have only found against the Applicant on the staff travel allegations. Had the Applicant made admissions to her employer about the staff travel immediately I would not have found the breach of the policy in itself to have been a valid reason for the termination of her employment. However the Applicant denied the allegations and did not even initially admit that she had charged Ms Western reimbursement of her costs. It was this dishonest response which means that the termination of her employment was not unfair.
[167] While I consider that the Applicant, given her illness at the time, was not given a proper opportunity to respond to the allegations, I do not consider that, even had the Respondent waited until the Applicant was fit to respond, the outcome would have been any different. The Applicant would have denied the allegations and the Respondent would have reached the same conclusions.
[168] For the reasons set out above I find that the termination of the Applicant’s employment was not unfair and her application is dismissed.
COMMISSIONER
Appearances:
The Applicant on her own behalf.
N Le Mare for the Respondent.
Hearing details:
2011.
Melbourne:
July 4, 5 and 14
1 Exhibit A2 at J
2 Ibid at R
3 Ibid at BB
4 Ibid at [23]
5 Exhibit R7 at [11]
6 Ibid [13]-[22]
7 Ibid at [34]
8 Exhibit A12 and transcript PN 723
9 Exhibit R8 at [13]
10 Exhibit R8 at [18]
11 Ibid at [19]
12 Ibid at [21]-[22]
13 Ibid at [24]
14 Ibid at [27]
15 Ibid at [28]
16 Ibid at [34]
17 Ibid at [37-[38]
18 Transcript PN 2092 and PN 2093
19 Ibid at [54]
20 Ibid at [56]
21 Ibid at [58]
22 Transcript PN 1619
23 Ibid PN 1626-1627 and Exhibit R8 at [52]
24 Ibid at [61]
25 Exhibit A2 at [17]
26 Ibid at [18]-[21]
27 Exhibit R8 at [64]
28 Ibid at [68]
29 Ibid at [69]
30 Ibid at [71] and [73]
31 Ibid
32 Ibid at [74]
33 Ibid at G
34 Ibid at F
35 Exhibit R8 at [74]
36 Ibid at [78]
37 Ibid at [79]
38 Ibid at [81]
39 Exhibit A2 at [80]
40 Ibid at [81]
41 Ibid at [82]
42 Ibid at [84]
43 Ibid at [85]
44 Ibid at EE
45 Ibid at [88]
46 Ibid at FF
47 Ibid at [90]
48 Ibid at [92f]
49 Ibid at [93]
50 Ibid at [94]
51 Ibid at [95] - [96]
52 Ibid at R
53 Ibid
54 Ibid at [98]-[99]
55 Ibid at [100]
56 Ibid at [101]
57 Exhibit R9 at L
58 Ibid at K
59 ibid
60 Ibid
61 ibid
62 Ibid
63 Ibid
64 Ibid
65 Exhibit A2 at JJ
66 Ibid At R
67 Ibid at DD
68 Exhibit A4 at [13]-[15]
69 Ibid at P
70 Ibid at Q
71 Ibid at [58]
72 Ibid at [63]
73 Ibid at [64]
74 Ibid
75 Ibid at [59]
76 Ibid at [65]
77 Ibid at [66]
78 Ibid at T
79 Ibid at U
80 Ibid at V
81 Ibid at X
82 Ibid at Y
83 Exhibit A1
84 Ibid at BB
85 Exhibit R9 at [27]
86 Ibid at [28]-[29]
87 Ibid at [30]
88 Ibid at [34]
89 Ibid at [35]
90 Ibid [37]-38]
91 Ibid at [39]
92 Ibid at [41]
93 Ibid at [49]
94 Ibid at [56]
95 Ibid at [60]
96 Exhibit A11 at page 2
97 Ibid at [3]
98 Ibid at page 5
99 Transcript PN 1976
100 Exhibit A11 at page 6
101 Ibid at page 7
102 Ibid at page 7
103 Ibid at page 7
104 Ibid at page 8
105 Ibid at page 9
106 Ibid at page 10
107 Exhibit A4 at [13]-[15]
108 Exhibit A11 at page 9
109 Ibid at page 11
110 Ibid
111 Ibid
112 Ibid
113 Ibid
114 Transcript PN 177-189
115 Exhibit R12 at [9]
116 Ibid at [13] -[15]
117 Ibid at [22]
118 Ibid at [36]
119 Ibid at [38]
120 Ibid at [62]-[63]
121 Ibid at [48]
122 Ibid at [51]-[52]
123 Ibid at [55]-[58]
124 Ibid at [64]
125 Ibid at [68]
126 Ibid at [69]-[70]
127 Ibid at [71]
128 Ibid at [72]
129 Ibid at [75]
130 Ibid at [77]
131 Ibid at [79]-[80]
132 Ibid at [92]
133 Ibid at [102]
134 Ibid at [100]-[108]
135 Ibid at [111]
136 Ibid at [113]-[114]
137 Transcript PN 556
138 Ibid PN 323
139 Exhibit A2 at [85]
140 Exhibit R8 at F
141 Exhibit R9 at [41]
142 Exhibit R8 at [27]
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