Carol Glass v Boss J Holdings Pty Ltd T/A Foodworks Fuel Bacchus Marsh

[2015] FWC 8360

[2015] FWC 8360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carol Glass
v
Boss J Holdings Pty Ltd T/A Foodworks Fuel Bacchus Marsh
(U2015/11775)

COMMISSIONER RYAN MELBOURNE, 2 DECEMBER 2015

Application for relief from unfair dismissal - dismissal consistent with Small Business Fair Dismissal Code.

[1] An application for an unfair dismissal remedy was filed by the Applicant on 11 September 2015.

[2] The Respondent objected to the application on the basis that the Applicant had not served the minimum employment period for an employee of a small business. That objection was dealt with by the Commission at a hearing on 19 November 2015 and the objection was dismissed. 1

[3] The application was listed for further hearing on 21 December 2015 to determine whether the dismissal was consistent with the Small Business Fair Dismissal Code and directions issued to both parties to file and serve any material they wished to rely on.

[4] Both parties advised the Commission that they did not intend to file any further material and in answer to an enquiry from the Commission both parties agreed that the matter could be determined by the Commission on the papers. The hearing listed for 21 December 2015 was therefore cancelled.

[5] Section 396 requires of the Act certain matters to be determined by the Commission before the merits of an unfair dismissal application can be considered.

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[6] This decision deals with the requirement in s.396(c) that the Commission decide whether the dismissal was consistent with the Small Business Fair Dismissal Code.

[7] The Small Business Fair Dismissal Code (the Code) is as follows:

“Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[8] In the present matter the Respondent contends that the dismissal of the Applicant was a summary dismissal and was justified. The Respondent only relies on the Summary Dismissal aspect of the Code and that aspect of the Code has been considered by a Full Bench of the Commission in Pinawin T/A RoseVi.Hair.Face.Body v Domingo (Pinawin). 2 The Full Bench stated:

“[29] ... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

[9] In the present matter the Respondent had concerns that the Applicant was stealing from the Respondent. The Respondent’s material does not identify when the Respondent first came to believe that the Applicant was stealing from the Respondent. However it is relevant to note that the Respondent only acquired the business from the previous owner a few months before the Applicant was dismissed.

[10] The Respondent in its Form F3 said:

“The Applicant was under suspicion whilst working under the previous employer as money began missing from the daily books with a negative figure showing, as a result the books would not balance.
The Applicant would, at times, hop on the register whilst she would be working under the previous employer doing their work. This was not acceptable but couldn’t say much to the applicant.
We have a float amount or $250.00 in the register at the start of every day and money began missing, this raised more suspicions that theft was occurring within the workplace.”

[11] The Respondent in its written submissions filed with the Commission on 15 October 2015 said:

“Whilst the applicant was working under the previous employer, the applicant also asked for a few shift. It was within these shifts suspicions were raised as money began missing from the float and as a result our books would not balance as well. The applicant was doing a few hours with the previous employer and continued to do these hours whilst under the new ownership. When it came to the applicant to work the shift she requested on Sunday the 23rd of August 2015 my husband and I came into the servo around 12.30am the morning of the 23rd August 2015 and counted our float and safe drops. There was a safe drop of $490.00 on the docket however the total amount of money that was actually in that drop was $890.00, so $400.00 was floating with that safe drop. The Applicant started work at 8am that morning and rang at 11.06 Stating that she needed to change money and went to the safe drop to do this, the applicant then stated that she counted the money from the safe drop and there was a further $200.00 in there . Well this was not the case ...
• Why did this applicant count the safe drop if she is just changing over $200.00 x $20.00.
• There is no need to count the safe drop if you have just changed money over as you are replacing what you are taking.
• There was plenty of money in the change bag to this this.

This Applicant is well aware of her actions on this particular day however the applicant tried to show that she found a further $200.00 in this safe drop and was doing the right thing finding extra money, however, the applicant did not realize that we were in there counting our money at midnight and that there was an extra $400.00 to that safe drop.”

[12] The Respondent also described the operation and use of the change bag:

“There is what the change bag consists of that balances from day to day and will have a total of $1304.00.

2 X $200.00 X$ 20.00 =$400.00
4 X $100.00 X$ 10.00 =$400.00
4 X $200.00 X$ 5.00 =$200.00
4 X $200.00 X$ 2.00 =$200.00
3 X $ 60.00 X $ 1.00 = $ 60.00
2 X$ 20.00 X$ 0.50 = $ 20.00
1 X $ 10.00 X $ 0.20 = $ 10.00
1 X $ 10.00 X $ 0.10 = $ 10.00
2 x $ 2.00 x$ 0.05 = $ 4.00
Total = $1304.00

The Applicant had sufficient money to change the $200.00 x $ 20.00 from the change bag but because this needs to balance day to day with the above breakdown the applicant couldn’t take the money from there so that’s why the applicant went for the opportunity of the safe drop money and going further into the safe where the applicant is not to go.

[13] The Respondent described the events on 23 September 2015 in its Form F3 as follows:

“On Sunday the 23rd of September the Applicant worked this shift on her own, so from the time we left at 12.30am in the middle of that night to the morning where the Applicant started at 8.00am, there was no one in-between on the premises and it was closed and secured.

The Applicant called me at 11. 06am that morning and stated that she need to change some money for the register for which we have a change bag that balance on a day to day basis to do this however she opt to look into the safe further and look into the side where safe drops stay which wasn’t for the Applicant to do.

The Applicant then stated that she went into the safe drop amount and changed $200.00 x $20.00 note, again this money was sitting in the change bag should the Applicant needed change for the register and the Applicant had no reason to touch the safe drop money.

The Applicant then stated that she had counted the safe drop money again, however there was no need for the Applicant to do this, we believe the safe drop amount was counted again by the Applicant because the Applicant knew there was extra money floating in there and took advantages of the floating money and therefore stated that the amount did not balance to the amount on the docket of $490.00 and that there was only an extra $200.00 in the float. Well this was not the case.

When the Applicant stated this to me I couldn’t believe what I was hearing and wasn’t too sure how to approach the rest of the phone conversation knowing all too well that this Applicant had taken our money, my husband took the phone, as he too was aware of what the Applicant had done and then told the Applicant to please return the money back to its place before we arrive to the servo, giving the Applicant a chance to return the money. When we arrived my husband went straight to the safe and checked the safe drop and the money wasn’t there.

The Applicant was well aware of her actions and started to cry with guilt for what she had been caught out doing. She was given the chance to replace it and didn’t, knowing all too well and either way, putting it back or not she had been caught out red handed.

The Applicant then asked to be paid for that shift, however we refused to give any more money to the Applicant knowing all too well money had gone missing and suggested to the Applicant that we could get the police to settle the matter for us however, the Applicant left straight away.

The Applicant states that there were other employees in our office area at the time the applicant did this, however this wasn’t the case, these employees in mention on the applicants statement are under the same building but in a total separate area and a total separate company.

We would like to let fair work know that we had notified the police on the
day of this serious misconduct happening…”

[14] The Applicant in her application, Form F2 described the events on 23 August 2015 as follows:

“I was at work on Sunday the 23rd of August, it was the middle of my shift and I went to the office to get change for the register
The safe was open (as it normally was), I took the final drop (cash) from the previous night.
I removed $200 of $20 notes out of that cash, I replaced it with $200 of $50 notes from my register and put the money back
I then went out of the office to serve customers, both Will and Keith were in the office area while I attended customers
I went back later to count the drop and make sure it was correct, when I counted it, the cash was $200 more than the docket said it should be
I rang Sharon to tell her the drop was $200 over and didn’t match the docket
Sharon said she had argued with Peter the nightshift worker and he had abused her in front of customers, she didn’t say anything about the money
Nigel took the phone from Sharon and told me the drop should have been $400 over (he did not tell me why the amounts didn’t match the docket and I found this odd)
He told me that he and Sharon had counted the cash the night before and were the last ones there
I advised Nigel I didn’t see anyone else access the safe, Nigel said “there better be $400 [extra] in there or there’s going to be trouble” then hung up the phone
I was shaken and upset by Nigel’s threat so I took the money out and counted it again with Will present
Sharon and Nigel came into the store with their daughter Brittany who took over serving customers, I was told to come into the office, I was shaking and started to cry, I felt intimidated and scared
-Nigel was counting the money and Sharon demanded I hand over the shop key
-Nigel produced a new docket that showed an additional $400, Nigel stated that I was the only person who could have taken the money
-I told Sharon she could search me and my bag as I did not take any money, Sharon shrugged her shoulders in a dismissive way indicating she was not interested in searching for the money
Sharon took the key and asked me for my work shirts back, I said ok
I was in shock and everything was happening so fast I couldn’t understand why Sharon and Nigel insisted money was stolen rather than misplaced or seeing if there had been an error
-Sharon stated they would be withholding my pay, I said “you can’t do that”, Sharon asked if I wanted her to call the police, I said “but I didn’t take it”,
-they stated they had already decided the money was stolen so I left”

[15] Whilst the Applicant refers in her Form F2 to two other persons being present in the store and possibly having access to the safe, the Applicant, in submissions filed on 26 October 2015 made clear that she did “not believe that either of these people would have stolen money”.

[16] Determining whether the dismissal of the Applicant is consistent with the Code must start from a consideration of the reasonableness of the belief of the Respondent that the Applicant engaged in serious misconduct. The Respondent’s fear or suspicions that the Applicant was stealing from the Respondent crystallised into a belief that the Applicant had engaged in an act of theft when the Applicant rang the Respondent at 11.06 on 23 August 2015 to report that the safe drop was $200 over.

[17] As the decision in Pinawin makes clear there are two steps in the process of considering whether the Code has been met:

“First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal.”

[18] In the present matter the material relied on by the Respondent satisfies the first element. The Respondent clearly and unequivocally held a belief that the Applicant had stolen money from the Respondent.

The second element in Pinawin is that:

“it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”

[19] The material relied on by the Respondent is more than sufficient to satisfy the second element of the test in Pinawin.

[20] The Respondent went to considerable lengths to satisfy itself as to the correct amount that was left in the safe before the Applicant commenced her shift at 8.00am on 23 August 2015. The conduct of the Respondent in attending the shop after midnight on the evening of 22/23 August 2015 to count the money in the safe provided a clear basis for the Respondent’s actions on the morning of 23 August 2015 when the Applicant asserted that the amount of money which was in the safe and which she had counted was $200.00 less than the amount that the Respondent knew was in the safe.

[21] The reasonableness of the Respondent’s belief that the Applicant accessed the safe drop so as to steal $200.00 is strengthened by the Respondent’s knowledge that there was a change bag holding over $1300.00 and which the Applicant could have and should have accessed if the Applicant wanted to change large denomination notes for smaller denomination notes.

[22] As Pinawin makes clear “the second element incorporates the concept that the employer has carried out a reasonable investigation into the matter.” In the present circumstances the investigation conducted by the Respondent was extremely limited. The investigation consisted of the Respondent counting the safe drop when the Respondents arrived at the store after having received the phone call from the Applicant at 11.06 on 23 August 2015. Nothing else occurred which could be considered as being an investigation. The Applicant was accused of theft and invited to put the money back. Although the Applicant indicated that she had no objections to either her person or her bag being searched by the Respondent this course of action was not pursued by the Respondent.

[23] There is no single standard for the conducting of an investigation in relation to matters such as the present. In Pinawin the Full Bench said:

“[30]…... The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

[24] In the circumstances of the present matter where the Respondent took proper action to establish the exact amount that was in the safe before the Applicant commenced her shift then the very limited investigation which consisted of recounting the amount of the safe drop in the presence of the Applicant was sufficient. This especially so where the Respondent had no reason to suspect anyone other than the Applicant and where the Applicant did not suggest that anyone else could have taken the money.
\
[25] The conclusion reached by the Respondent that the Applicant stole $200 on the morning of 23 August 2015 was a reasonable conclusion in all the circumstances of this matter.

[26] As Pinawin makes clear the Commission does not need to consider whether the Respondent was correct in its belief that the Applicant stole $200 on morning of 23 August 2015. Nor does the Commission have to objectively determine whether the Applicant engaged in the alleged serious misconduct of taking $200 from the safe drop on 23 August 2015.

[27] The Code requires consideration of the reasonableness of the belief of the Respondent.

[28] In all of the circumstances of the present application the Commission is satisfied that the dismissal was consistent with the Summary Dismissal provisions of the Small Business Fair Dismissal Code.

[29] The dismissal of the Applicant was not an unfair dismissal within the meaning of s.385 of the Act.

[30] The application for an unfair dismissal remedy must be dismissed.

COMMISSIONER

 1   [2015] FWC 7982.

 2   [2012] FWAFB 1359.

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