Cheryl Creighton v ISS Facility Services Australia Limited

[2015] FWC 4743

[2015] FWC 4743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cheryl Creighton
v
ISS Facility Services Australia Limited
(U2015/4321)

COMMISSIONER SIMPSON BRISBANE, 25 SEPTEMBER 2015

Application for relief from unfair dismissal – Alleged Serious misconduct – After acquired knowledge – Allegation made out on the balance of probability – Application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Ms Cheryl Creighton (“the Applicant”) who alleges that the termination of her employment with ISS Facility Services Australia Limited (“the Respondent”) was unfair in accordance with the definition contained within s.385 of the Act.

[2] The Respondent provides cleaning services to the New South Wales Department of Education and Communities. The Applicant was employed by the Respondent from 24 January 2005 as a school cleaner and her dismissal took effect on 6 March 2015, making her period of employment over ten years. At the time of her termination, she was engaged to conduct cleaning duties at Terranorra Public School. The Applicant described her duties as consisting of cleaning all buildings, toilets and outdoor areas, as well as stripping, sealing and buffing timber and vinyl floors. The application was filed on 25 March 2015 and a conciliation conference was conducted on 23 April 2015 which was not successful in resolving the matter.

[3] The Respondent employed approximately 3000 employees including the Applicant at time of termination. The Applicant was summarily dismissed for serious misconduct on Friday 6 March. A termination letter was sent on Monday 9 March. The Applicant was advised of her termination in person at a meeting the previous Friday. Whilst nothing in particular turns on it, the letter indicates the Applicant was not actually terminated until Monday 9 March. It would appear clear the Applicant was terminated at the conclusion of the meeting on 6 March, and the letter merely confirms the decision taken on the previous Friday. The letter included the following:

“Dear Cheryl

Re: Termination of Employment

I refer to our meeting held on Friday 6^th March 2015 and confirm that your employment with the Company is terminated effective immediately.

Prior to the meeting, you were advised of the serious nature of the allegations against you, namely that you were accused of theft by the principal of Terranora Public School.

You were supported by your union representative at the meeting and provided with a reasonable opportunity to respond to all of the allegations.

We have given due consideration to your responses, however, on the balance of probability and given all of the circumstances we consider the allegations substantiated and accordingly view your actions as serious and wilful misconduct. Your employment is terminated, effective immediately from the date of this letter, without notice of any compensation in lieu of notice.

Any outstanding entitlements will be paid in to your bank account and a Separation Certificate will be sent to you.

…………………………………………….”

[4] The matter was listed for hearing on Friday, 31 July 2015 in Brisbane. The Applicant was represented by Mr H Pararajasingham, an Industrial Officer from United Voice and the Respondent was represented by Mr J Moore, the National General Manager Industrial Relations. The Applicant filed statements and called as witnesses herself  1 2 and Mr Peter Doherty, Regional Organiser for United Voice – NSW Branch. 3

[5] The Respondent filed statements and called as witnesses Mr James Hackett, the Principal of the Terranora Public School 4, Ms Diane Casey, the Administration Manager of the Terranora Public School5, Ms Victoria Carroll, the Human Resources and Divisional Quality Manager – Specialised Services of the Respondent6 and Ms Jacqueline Doreen Keenan, Customer Service Manager for the Tweed/Ballina area for the Respondent.7

[6] The evidence could not be concluded on 31 July, so the remaining evidence and closing submissions were provided on 4 September.

Return of School Principal

[7] Mr Hackett gave evidence that upon returning as principal to the School after 1 year (2014) working away he received numerous complaints from staff regarding things going missing at the school since midway through 2014. He said that this continued into 2015 and there was an increase in the number of thefts of money in the first four weeks of school in 2015. Mr Hackett attached to his statement a list of missing items and cash. 8

ITEMS MISSING

Border locksmith changed locks on Storeroom and key cabinet on 12/2/15

Administration	Missing from	Date last Seen	Date Missing
Ipad	ADMIN 1ST OFFICE CUPBOARD	11/12/2014	15/12/2014
$140	Petty cash – locked in storeroom over Xmas	18/12/2014	27/1/2015
$10	Cash register part takings locked in storeroom	4/2/2015	5/2/2015
$10	Cash register part takings locked in storeroom	Between 9/2/2015	13/2/2015
$50	Petty cash box locked in filing cabinet FO	3/2/2015	17/2/2015
$50	Cash register part takings locked in storeroom	18/2/2015	19/2/2015
Uniform Shop
$70	Uniform shop part takings locked in storeroom	24/2/2015	26/2/2015
Receipt books	Uniform shop	22/2/2015
Invoice books	Uniform shop	26/2/2015
Demountable 1 – L. Adams
Cleaning products	Classroom Dem 1	T3 W4 2015
Marbles	T1 W1 2015
Administration	Missing from	Date last Seen	Date Missing
RR Room – P. Gallagher
2 hats	RR Room	Early T4 2015
Expensive Cardigan	Early T4 2015
P Block Room 13 – T. Wormald
2 Acer notebooks	Classroom	2014 July	2014 July
P Block Rms 14/15 – L. Skinner
Packet Whiteboard markers	Computer Room between 3/4E & 5A	29/1/15	30/1/15
2 Resource books	8.30am	2.15pm
Whiteboard day weather month chart
Homebase 1 Rm2 – A. Wraight
$50 in marked envelope	Desk	2014 May	2014 May left on desk by parent
Hand soap various containers	Under sink	10 bottles provided by parents – the cleaner admitted to another staff member she had taken them to another classroom.
Science storeroom Homebase 2 – A. Lloyd
Approx 20 small & large resource storage tubs with red lids	All in a large carboard box, whole box is missing
Large & small storage tubs	12/2/2015
Homebase 4 R7 – S. Harker
Approx $30 in coins	In margarine cont. in cupboard behind desk	T3 2014
Soap that parents send in	Storeroom	T3 & 4 2014
Homebase 5 Rm9 – J. Edwards
Approx $15 - $20 in coins	Bottom drawer of desk	Mid T4 2014

[8] The document headed ‘Report by James Hackett, Principal Terranora Public School 1 March 2015 by Mr Hackett reads as follows:

“Upon returning from one year (2014) working away from the Terranora Public School (TPS) site, I received numerous complaints from staff regarding things going missing at school since midway through 2014. This continued in 2015 and there was an increase in the number of thefts of money in the first four weeks of school. Please see the attached list of items missing.

In consultation with our general assistant Rolly Von Mouseveld and our school administrative manager Dianne Casey, I decided to change the locks on our school’s strong room, key cupboard and money box. The key cupboard and money box are located in the school’s strong room.

The strong room is a vault with reinforced steel within the walls and ceiling and a steal vault door. I kept control of all keys to the strong room, money box and key cup board.

Due to the high number of thefts around the school and the location of the thefts, it became abundantly clear to me that the school’s cleaner, Cheryl Creighton, was the only person, outside of school hours, with access to the rooms where things went missing. It is widely believed that things went missing during out of school hours.

The original set of keys to the key cupboard and money box went missing on a school development day Term 4 2014, when all teachers were on a course. The keys were left on Joh Anderson’s desk for a brief time when Cheryl was alone in the front office. The only other people who could have taken the keys are long term administrative employees who I do not suspect could or would take the keys. Thefts commenced following these keys going missing. See attachment.

I left a new key to the strong room and money box in my top drawer of my desk at limited, specific times when only Cheryl was in the school. The cleaner works a split shift. I carefully monitored the key to make sure only Cheryl had access to the key. Cheryl of course has a master key so she has access to my office to clean it. After a theft of money from the money box (inside the strong room) I was certain Cheryl was stealing from the school, because she was the only person in the school at the time the key was available.

I received numerous complaints from staff and parents about the cleaning within the school. Some areas of classrooms look like they have not been cleaned in over a year. It raises the question, if you are busy snooping around classrooms for things to steal you have less time available for cleaning.

I received reports from teachers, who observed Cheryl snooping around classrooms and in teachers store rooms. When Cheryl was caught she made an awkward excuse for looking for a light switch when the lights in the classroom are turned on by motion. There is no switch.

Cheryl indicated other behaviours that made me suspicious of her. She reported the alarm engaged and an intruder going out the staff room door when she went in the other end of the administration building. This immediately followed her stealing money from the money box. The school’s general assistant made a thorough inspection of the school and there were no signs of illegal entry or an intruder on site. Cheryl made a report to her employer regarding an intruder on site. I believe this to be a red herring.

It is my view that Cheryl Creighton has been stealing from the school. I have made a report to the NSW police. I am making further enquiries to the NSW Department of Education and Communities legal branch, on how to get court ordered restitution.

These thefts caused ongoing and significant trauma to the staff of the school.”

[9] Mr Hackett gave evidence and adopted much of what he had put in his report in his evidence for the unfair dismissal case. Mr Hackett said that the Applicant had a master key which gave her access to his office (but not the strong room or the money box). It was his evidence the key to the strong room and the money box remained with him, except when he went home when it was in his desk draw in his office.

[10] Ms Carroll confirmed in her oral evidence the termination was on the basis of the alleged thefts, and not connected to other issues.  9

24 February

[11] Mr Hackett said the school had quite a number of CCTV cameras and signage throughout the school advising of CCTV surveillance. He said that due to the on-going thefts, one of the CCTV cameras was relocated into the strong room on 24 February 2014.

25 February 2015

[12] Early on the morning of 25 February the Applicant reported that the alarm at the school was going off and she heard a door close. Mr Hackett was of the clear view that the Applicant reporting this was a ‘red herring’. 10 He said a thorough inspection of the school showed no signs of a forced entry or an intruder on the site.

26 February 2015

[13] Mr Hackett said that on the morning of 26 February 2015, CCTV footage of the Applicant in the strong room and a further theft of money from the money box (inside the strong room) were discovered. Mr Hackett said that the CCTV footage captured footage of the Applicant in the strong room on 24 February at 5:35pm. Mr Hackett said that the Applicant had no legitimate reason to be in the strong room and could only have gained access by using his key (left in his desk draw). He said that the footage shows that the Applicant notices the camera and tries to disable it by hitting the camera. He said that the Applicant is then observed climbing up and manipulating the camera before it is disabled. The CCTV footage was provided with Mr Hackett’s statement.  11

[14] Mr Hackett said that this evidence confirmed his belief that the Applicant was stealing from the school and he contacted the Respondent to advise them of his concerns and have the Applicant removed. 12 Mr Hackett in his oral evidence stated that the amount of money discovered missing on 26 February was $70 which is identified on the list of items13 under the heading ‘Uniform Shop’ and described as ‘Uniform shop part takings locked in storeroom’, last seen on 24 February.14

[15] Mr Hackett gave evidence that in the strong room two money boxes were put away. One money box from the P&C, which is the P&C uniform shop money. He said that at the end of the day when the uniform shop is closed, the money box is taken to the front office staff and the front office staff lock it up. 15 He went on to say that on that particular day of 24 February, video footage showed first Joanne Anderson go in and lock away one money box, which he believed was probably the front office cash, and then a short time later “Beth” goes in and locks up, which he said was probably the uniform shop money. Mr Hackett said that then an hour and a half later the Applicant is in the uniform shop. 16 I am satisfied from the evidence this reference in Mr Hackett’s evidence to the uniform shop was intended to be a reference to the strong room.

[16] Mr Hackett’s evidence was to the effect that the next time the uniform shop money box was opened $70 was missing. Mr Hackett made the point that with each theft not everything was stolen, just parts (of the money) were stolen and in the case of 24 February, the front office money box was left, but $70 was taken from the uniform shop money. 17

[17] Ms Victoria Carroll, the Human Resources and Divisional Quality Manager – Specialised Services, for the Respondent gave evidence she had occupied that role for 11 years and has known the Applicant since 2007 through a number of incidents she said the Applicant had been involved with. 18

[18] Ms Carroll said that on 26 February 2015 she became aware that the Principal of Terranora Public School, James Hackett, had made an allegation of theft of items from the school by the Applicant. Ms Carroll said that Mr Hackett required the Respondent to remove the Applicant from the school immediately due to the allegations. Ms Carroll said that Mr Hackett also advised the Respondent that he would be reporting the thefts to the police. Ms Carroll said it was decided to suspend the Applicant on full pay. 19

[19] Ms Keenan said she received a phone call from her General Manager around 1 pm on 26 February asking her to visit the Applicant at the school and advise her she was suspended on pay due to allegations received from the principal. 20 Ms Keenan said she advised the Applicant when she met with her that day to ring Mr Peter Doherty from the union, and someone from the Respondent would be in touch in the next few days to organise a meeting and let her know about the allegations. 21

[20] Ms Carroll said that over the next few days she arranged to travel to the North Coast of New South Wales to attend to another matter and then to meet the Applicant on Friday 6 March 2015. 22

[21] The Applicant said that at 1.45pm on Thursday 26 February she commenced her usual shift at the school, and at approximately 2.45pm, Mr Warren Parrish, the Respondent’s Stores Deliverer, approached her and advised her to stop work and to go with him up the road to the shop where they would meet with the Respondent’s area manager. The Applicant said once they arrived, Mr Parrish and Ms Keenaninformed her Mr Andrew Hackett had ordered her off site. The Applicant said that Ms Parrish and Ms Kennan acknowledged that they did not know why he had given this direction, and also told her that she had to attend a meeting with representatives of the Respondent at 9:00am on Friday 6 March 2015. 23 The Applicant said her immediate reaction was one of bewilderment and shock. She said she could not stop crying and could not believe she had been indefinitely stood down from her job and had absolutely no idea as to why she was being punished.24

5 March 2015

[22] Ms Carroll said that on 5 March 2015 she emailed Peter Doherty of United Voice, a copy of the allegations made by Mr Hackett and a list of the items that went missing from the school. The Applicant said that at 4.16pm that day she received from the Respondent a document which was attached to her statement.  25 The document was a report by the Principal of the Terranora Public School.

[23] The Applicant said that she was stunned and shocked after reading the correspondence, and that she had never stolen any items from the school. It is not in contest that the Applicant was only first made aware of the nature of the purported allegations on 5 March 2015 (just 16 hours before her termination meeting) when she received a statement made by Mr Hackett.

6 March 2015

[24] It is common ground that on 6 March at 9am the Applicant and her representative Mr Doherty met with both Ms Carroll and Ms Jackie Keenan, at the Outrigger Twin Towns Resort. Ms Keenan said that she kept notes during the meeting.  26

[25] The Applicant claimed Mr Doherty on her behalf tried to highlight that the allegations were unreasonable and that there was absolutely no proof or basis to any of the contentions, including the apparent ‘red herring’. Mr Doherty said in his evidence at the start of the meeting both the Applicant and himself noted that all the allegations in the in the report of Mr Hackett were false.  27

[26] The Applicant claimed the Respondent then acknowledged that the focus of the meeting was only on the missing money and not on any other items. The Applicant claimed in response it was said that this allegation is also completely false and baseless; however the Respondent did not seem interested in engaging in dialogue. Mr Doherty said that after some discussion the Respondent conceded that it unlikely that the Applicant had stolen all the items referenced in the report, and appeared to now assert that the missing money was the only allegation in question.  28

[27] The Applicant said there was then a 25 minute break as the Respondent wanted to seek further instruction from Mr Hackett. Upon reconvening the meeting, the Applicant said that she was informed that she was terminated, effective immediately. She said a letter was later sent to her verifying this. 29 It was asserted that the Respondent dismissed all requests for further particulars and simply imposed a pre-determined verdict. Mr Doherty said that when the meeting reconvened, in relation to the allegation that the Respondent stole money, the Respondent acknowledged that it had no evidence which it could put to them, nonetheless, maintained that Mr Hackett’s allegation was justified and declared that the Applicant was to be terminated effective immediately. 30

[28] Ms Carroll said that at the meeting she advised that this matter was serious and may lead to disciplinary action, up to and including termination of employment and also that this was confidential. She said she also explained the process that is the allegations and the Applicant would have a chance to respond and the Respondent would investigate further if needed.

[29] Ms Carroll said that she advised the Applicant that no matter what the outcome of the investigation she would be unable to return to the Terranora Public School as requested by the Principal. Ms Carroll said that in the contract the Respondent had with the Government to provide services to specified areas of New South Wales, the client has the ability to request removal of any contractor staff member from their site.  31

[30] Ms Carroll said that she detailed the allegation as described in Mr Hackett’s report and the list of items allegedly stolen from the school. Ms Carroll said the Applicant was very upset by the allegations and stated she would never steal from the school.  32

[31] Ms Carroll said that Mr Doherty and the Applicant both stated that the Applicant had been an excellent employee and had never been in trouble before this matter. Ms Carroll said she advised the Applicant that she had received a first and final warning on 5 March 2013 for abusing a client and a manager of the Respondent, and there had been a number of incidents over the years that had led to the Applicant being transferred from a number of sites.  33

[32] Ms Carroll was cross examined about the various misconduct issues referred to in her witness statement prior to the matters that led to the Applicants  34 including that at paragraph 3(b), 3(c) concerning the Applicant receiving a first and final warning, 3 (g), 3 (h) where it was said the Applicant was transferred at a client’s request, 3 (i) where it was said the Applicant was the subject of a racial harassment complaint. The cross examination focussed on these historical issues not being put to the Applicant for the purpose of considering her credibility in regard to the allegations of theft. However it is notable that despite the Applicant making the claim that she had never been in trouble before, the veracity of the Ms Carroll’s evidence at paragraph 3 regarding previous conduct issues was not challenged.

[33] Ms Carroll said she went through the items on Mr Hackett’s report and the Applicant denied the allegations. Ms Carroll said that at no time during the meeting did she state that the allegation was only based on the money stolen from the site. However, Ms Carroll said she did say that the list of items taken was substantial and they would not concentrate on some of the smaller items such as a receipt or invoice book. Ms Carroll said there were many items of significance such as an iPad 2, 2 Acer Notebooks and substantial amounts of money.  35

Keys Issue

[34] Ms Carroll said that the Applicant stated she did not have a key for the strong room, where money was stolen from, but only the GA’s (General Assistants who work directly for the school) had keys. Ms Keenan agreed that the Applicant said this. 36

[35] Ms Keenan said that Mr Doherty questioned if the Principal knew how much was in the safe and the time it was there.  37 Both Ms Carroll and Ms Keenan said the Applicant had stated that the administration area was left open, including the Principal’s office. 38 39

[36] Ms Carroll said the Applicant claimed the school is used by outside people all the time, who use the hall and rooms and have after school access.  40 Ms Keenan supported this.41 Ms Keenan said the Applicant said she was asked about the missing keys from last year.

Intruder and Alarm

[37] Ms Carroll claimed that the Applicant said in the meeting that on 25 February she told the Principal that the school alarm was flashing and she believed she saw someone leave the back door. 42 Ms Keenan agreed that the Applicant said the school alarm was flashing and she believed she saw someone leave the back door. 43 In her oral evidence the Applicant said she rang to report that there was someone there.44 The Applicant said she “…rang Rolly on his phone and he was on his way to Tweed River School that morning because he does two different sites and I said I was going to go and lock myself in the library because when I go there the lights were flashing and the alarm was going off and I heard the back door close…”45The Applicant also said in her oral evidence she never said she saw someone leave the back door at any stage. The Applicant said she actually said, ‘I heard the back door bang shut.”46

[38] Ms Carroll said the Applicant maintained that no one seemed to be in charge of locking up the school anymore and the admin area is quite often left open. Ms Keenan accepted in her evidence that at 7.30am on 25 February the Applicant called her on her mobile phone and advised the alarms were flashing when she arrived at work. Ms Keenan said she did not recall if the Applicant mentioned anything about an intruder. 47 Mr Hackett accepted that the alarm had gone off, but he also said the alarm has gone off many times before, and that it was “a common event”.48 He said after speaking to the two GA’s he was satisfied no intruder had been at the school.49

[39] Ms Carroll said that at 9.40am she suspended the meeting so that she could contact Mr Hackett and clarify some of the issues raised by the Applicant. Ms Carroll said Ms Keenan contacted Mr Hackett by telephone and they had a three way conversation. 50

[40] Ms Carroll gave evidence about her discussion with Mr Hackett, including concerning the alarm, and the light sensors in classrooms. In regard to the keys Ms Carroll said that Mr Hackett stated that tenants do have keys for the school hall; teachers have limited access to their rooms only; the GA’s have access to all rooms, but that he was the only one with access to the strong room.

[41] Ms Carroll said that Mr Hackett said the admin keys went missing in the admin office that had been left on the desk and the Applicant was the only person in the area at the time.  51Ms Carroll said that Mr Hackett said the admin area was possibly unlocked some of the time but his office is always locked, and that the only people with keys to his office are the Applicant Dianne (Casey) and Rolly, the Head GA. 52

[42] Ms Carroll said Mr Hackett also raised an issue where one of the teachers found the Applicant reading a magazine that was in the teacher’s handbag. 53 He also said his office is usually cleaned in the afternoon when he is in the office.54

[43] Ms Carroll said the meeting resumed at 10.15am and issues discussed with Mr Hackett were then discussed with the Applicant. Ms Carroll said that she advised the Applicant that based on the balance of probability and given all of the circumstances, for example, she was the one with the greatest access, the thefts occurred during periods when she was responsible for the school and that there is no likely alternative for who may have done this, the Respondent was terminating her employment. 55

CCTV Footage

[44] The Applicant in her reply statement referred to the CCTV footage of 24 February 2015 filed by the Respondent as part of its case. 56 The Applicant said at no stage during her employment, or the purported investigation did the Respondent put the CCTV footage to her, and it was only provided to her on 24 June, some three months after her termination.

[45] The Applicant said that the purpose of her filing a further statement was to address the purported CCTV footage. The Applicant said that on 24 February 2015, she was attending to her cleaning duties at the School as usual. She said at approximately 8.30am, she was cleaning the administration building, and at this time she encountered the secretary of the Principal Ms Diane Casey, in the hallway outside of the Strong Room. The Applicant said that she noted that the door to the Store Room was open. The Applicant claimed she had a conversation with Ms Casey to the following effect:

“Diane Casey: The Strong Room is a mess.

Cheryl Creighton: I can clean it before I go home, I finish at 9.00am.

Diane Casey: That’s ok, it is really not your job to attend to that.

Cheryl Creigton: I know, it is not even part of the contract, but I will do it anyway.

Diane Casey: Ok, thank you.”

[46] The Applicant claimed that she then went in to the Cleaning Room, which is in the Administration Building) and collected the vacuum cleaner, mop, bucket, and cobweb brush (that is connected to an extension pole). The Applicant claims she then returned to the Strong Room and began cleaning, as Ms Casey had directed her. 57

[47] The Applicant said in her statement that she used the cobweb brush to attend to dusting. She said that whilst dusting the shelves between 00:32 and 00:46 seconds on the CCTV footage, she recalled knocking off the shelves what appeared to be some type of plastic tubing that was positioned on top of a box, as well as a brown hessian bag.  58

[48] The Applicant said that in order to return the black plastic tubing and brown hessian bag to the shelves, she obtained a chair from the Dining Room which is next to the Strong Room (as shown on the CCTV footage at 01:34).

[49] The Applicant said that as she stood on the chair, she noticed that there was other black plastic tubing in the box. She said that as she was rearranging the material on the shelves, she noticed that among these black plastic tubes appeared to be a small camera. She said that at the time she did not know why a camera was kept amongst this black plastic tubing and was uncertain if the camera was even working.  59

[50] The Applicant said that she then placed all the black plastic tubing back on top of the box, and she proceeded to vacuum the floor of the Strong Room, and then mop the floor. The Applicant said that the Strong Room door was left open.  60

[51] Mr Hackett gave evidence that it was discovered on the morning of 26 February that money was stolen from the money box in the strong room, in circumstances where CCTV footage showed that the Applicant was in the store room at 5.35pm on the afternoon of 24 February when she had no basis for being in the strong room. A screen shot of the CCTV mp4 file was provided at the hearing with “24/02/2015 6.35pm” noted under “Date Modified”  61 Mr Hackett gave evidence about this document in the context of the issue of when the Applicant was in the strong room. Mr Hackett gave evidence that his assistant brought the camera to his office and it was plugged into his desk top computer and information was downloaded from the camera. 62

[52] Mr Hackett was cross examined about whether the time and date noted under the heading “Date modified” refers to the time it was uploaded as opposed to when the footage was taken. Mr Hackett said that he believed the date and time are correct, because it followed right on from when Jo Anderson and Beth Mitchell were putting the uniform shop money box, and the front office money box into the strong room and they are on the same date and time that they would do it, at around 3 o’clock or 3.30. 63 He said he checked this with Jo Anderson and Beth Mitchell and they confirmed the time was correct (subject to the day light saving time issue). 64 Mr Hackett went on to say that on its own, he accepted that the time was correct, subject to a one hour adjustment as the camera did not acknowledge daylight savings time. 65

[53] It was put for the Applicant that the CCTV footage of the other two persons was never put into evidence. The Respondents put in their original submissions that they only became aware of the existence of any CCTV footage in the preparation of its response in the proceedings as Mr Hackett hadn’t advised the Respondent that the CCTV footage existed at the time he directed the Respondent to remove the Applicant from the school.  66

[54] Mr Hackett gave oral evidence that he had discussions with those other two persons concerning the times they entered the strong room. He maintained they corresponded with the times he had seen, and times identifiable from the CCTV mp4 file. 67

Ms Casey

[55] The oral evidence of Ms Casey was clear and concise and consistent with her statutory declaration. She gave evidence that she had worked at the school since 2003 and was the assistant to the Principal. She was adamant she had never had a conversation with the Applicant about cleaning the strong room (store room) as claimed by the Applicant, and that as far as she was aware the cleaners do not clean that room and she is not in position to ask or instruct them to clean anything. 68 Ms Casey went as far as to say that it was impossible for her to have had the conversation with the Applicant that the Applicant claimed had occurred.69

[56] Mr Casey acknowledged that the Applicant did clean the administration area. 70 Ms Casey gave evidence that her work station was in the administration area as was the strong room.71 Ms Casey’s evidence was she would have been in the administration area at 8.30am on 24 February 2015.72

Consideration

[57] I am satisfied on the evidence that contrary to the claim of the Applicant Ms Casey did not direct the Applicant to clean the strong room on the morning of 24 February 2015. I am also satisfied on the evidence that the Applicant was in the strong room around 5.35pm on the afternoon on 24 February, and not in the morning as she claimed. It was the Applicants evidence that this was the first occasion she had been in the strong room. 73 It is notable that the Applicant never raised the matter of being in the strong room, or her alleged conversation with Ms Casey in either the course of the meeting on 6 March, or in her initial statement of 18 May.

[58] The evidence of Mr Hackett concerning the likely accuracy of the time recorded on the “Date Modified” document 74is reasonably compelling. His explanation regarding why he believed the footage was taken at 5.35pm is logical, and whilst it is noted separate CCTV footage of earlier in the day that he referred to in his evidence regarding the movements of Jo Anderson and Beth Mitchell was not also provided, he gave evidence about what he said he saw on that footage, and also about his discussions with those persons. This is sufficient for me to be satisfied about the reliability of this information.

[59] The two findings above, that Ms Casey did not authorise the Applicant to clean the strong room, and that the Applicant was in the strong room in the late afternoon of 24 February, and not in the morning as she claimed necessarily undermine the credibility of the Applicants other evidence.

[60] Having found that the Applicant was in the strong room in the late afternoon, and not the morning as she claimed, it seems implausible that the Applicant would remember in detail the events that occurred whilst in the strong room when she claimed to be cleaning it, however was mistaken about the time of day it was that she was in the strong room. I am not inclined to accept that the Applicant was merely mistaken about this issue, and more inclined to believe she knew she was in strong room in the late afternoon, and not the morning. The Applicant accepted it was not part of her duties to clean the store room. Having found that she was not authorised by Ms Casey, or anyone else to be in the storeroom, it then raises an obvious question; what was the Applicant doing in strong room?

[61] The Applicants evidence was inconsistent regarding what she was doing in the strong room. Her statement in reply claims that she was dusting the shelves with a cobweb brush between 00:32 and 00:46 seconds on the CCTV footage. In cross examination she initially says that she was using a cobweb brush 75, then that it was a roll of paper.76 It was put to the Applicant during cross examination that she reached into the shelving and withdrew a roll of paper and that she used the role of paper to attempt to disable the camera.77 The Applicant then reverted to saying she was using a cobweb brush (at that point during the CCTV footage).78 Later her evidence indicated she had a handled brush, a dust pan, or feather duster.79 In re-examination she described it as a cobweb brush and she was cobwebbing from side to side.80

[62] The Applicant said in her oral evidence that she was dusting the shelves but if something had fallen down she picked it up and had thrown it back up. The Applicant denied she was trying to use a roll of paper to dislodge the camera. 81 82

[63] On viewing the footage, it is reasonably clear, the Applicant is not holding a cobweb brush at that time, but instead appears to be holding what looks like a long roll of paper as asserted by the Respondent. Further it does not appear that the Applicant is dusting but instead repeatedly striking with the roll of paper what appears from the footage to be the camera itself.

[64] The CCTV footage then runs from about 00:46 seconds to 01:30 seconds with no vision of anything except the camera angle into the corner of the room. At about 01:30 seconds and for the next 30 seconds the footage shows the Applicant again, and it is apparent the Applicant is manipulating the camera itself.

[65] The Applicants explanation of this footage is that she had recalled knocking off the shelves what appeared to be some type of black plastic tubing that was positioned on top of a box, as well as a brown hessian bag. In order to return the black plastic tubing and brown hessian bag to the shelves, the Applicant said that she obtained a chair from the Dining Room area which is next to the strong room.  83

[66] The Applicant said that as she stood on the chair, she noticed that there was another black plastic tubing box, and as she was rearranging the material on the shelves, she noticed that among these black plastic tubes appeared to be a small camera. The Applicant said that at the time she did not know why a camera was kept amongst this black plastic tubing and was uncertain if the camera was even working. She said she then placed all the black plastic tubing back on top of the box. 84

[67] In oral evidence the Applicant was asked why (putting things back on the shelves) required her to pick up the camera and move it around. The Applicant responded that the camera was inside one of the black tubing things, which had fallen down, which she had picked up to put back where it was supposed to be.  85

[68] The Applicant claimed in oral evidence that the camera had fallen down. 86 In re-examination the Applicant affirmed a number of times her earlier evidence that the camera itself had fallen down on the ground.87 The Applicants evidence is at odds with the footage itself which indicates the camera does not move from wherever it is affixed to, but it is the angle of the camera that is manoeuvred by the Applicant.

[69] It is not disputed that the CCTV footage does not depict the Applicant taking money from a money box. It is also accepted by Mr Hackett that the strong room is left open during the day.  88

[70] It was Mr Hackett’s evidence that the Applicant must have used her master key to access his office (after hours) and that the Applicant accessed the keys to the strong room from his top drawer. He claimed that he carried that key in his pocket and was in the top drawer when he went home. 89Mr Hackett said the key to the strong room is the same key as the key to the moneybox.90

[71] It is submitted for the Applicant that there is no direct evidence that the Applicant entered Mr Hackett’s office after hours using her master key, and then entered the strong room using the key from his top draw. I have already stated however that I am satisfied the CCTV footage shows the Applicant in the strong room at 5.35pm or thereabouts on 24 February, which in all likelihood would have required that in order for her to have gained access to the strong room, she would have taken those two steps referred to by Mr Hackett.

[72] Serious misconduct is defined in regulation 1.07 of the Fair Work regulations 2009 as follows:

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.


(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;


(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or


(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or


(ii) fraud; or


(iii) assault;

(b) the employee being intoxicated at work;


(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

…”

[73] The Applicant submitted that when considering the requisite standard of proof in matters involving serious misconduct, the principle established in Briginshaw v Briginshaw is particularly relevant: In submissions the Applicant referred to the following passages from that decision:

“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; 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.”

[74] Further:

“reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts proved. 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 to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

[75] In Neat Holdings v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 it was held by majority that:

“the strength of 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.”

[76] The Applicant argues that in this matter there is insufficient evidence to justify the Respondent’s allegations.

[77] The Applicant further argues that Mr Hackett’s allegations are wholly false and based on mere speculation, conjecture and guesswork. The Applicant gave evidence that she received a call from the police who informed her that the matter was closed and that there would be no further action.

CONCLUSION

[78] The Applicant was not authorised to enter the strong room and had no legitimate purpose to be in the strong room. Further the CCTV appears to show the Applicant attempting to disable the camera by hitting it with a long roll of cardboard or paper, and then manipulating it. The version given by the Applicant of what she was doing in the strong room is inconsistent with the footage itself. On the way to arriving at these findings I rejected the evidence of the Applicant on a number of occasions about other matters, including concerning an alleged conversation with Ms Casey authorising her to enter the strong room, and also about the time at which the Applicant claimed she was in the strong room. As already stated above, this rejection of the Applicants evidence on these matters undermines her credibility more generally concerning the central allegation.

[79] Having considered all of the evidence, I am satisfied on the balance of probability that the Applicant did take $70 from a money box in the strong room. The evidence is sufficiently clear and cogent to be satisfied this is not a case of the allegation being a possibility, it is a probability. Any alternative explanation for what may have happened to the $70, for example that an intruder may have somehow gained access to the strong room on the morning of 25 February seems implausible given there was no evidence of any forced entry. Having made the finding on the balance of probability, such conduct falls within the definition of serious misconduct and is a valid reason for dismissal. I have had regard to each of the other criteria of s. 387 of the Act.

[80] The reason for termination was notified to the Applicant before the decision was taken. The Applicant was given an opportunity to respond to the reason for termination at the meeting on 6 March 2015. The Applicant denied all of the allegations made by Mr Hackett and identified a number of possible alternative reasons as to why items at the school had been missing.

[81] I accept that the Applicant never saw the CCTV footage before her termination, however neither had the Respondent. As became clear at the hearing, the Respondent only learned of the existence of the footage in preparation for the hearing of this matter. It is well established that an employer is entitled to rely on after acquired knowledge in unfair dismissal proceedings. I would agree with the Applicants criticism of the particulars of the allegations only being provided to the Applicant and her union representative the day before the meeting on 6 March. There appears to be no adequate explanation for this given the Applicant had been stood down for approaching two weeks at that time. Further I would also agree that the Respondent did not thoroughly investigate the allegations before reaching its determination, and had the CCTV not become available after termination the Respondent’s evidentiary case without the CCTV footage would have been significantly weaker.

[82] The Applicant had a support person present at the meeting on 6 March. Section 387(e) is not relevant in this case. Section 387(f) and (g) do not assist the Respondent in that it is a large employer with in-house Human Resources expertise.

[83] Having considered all of the evidence I am satisfied that the Applicant’s dismissal was not harsh, unjust or unreasonable and on that basis dismiss her application for unfair dismissal remedy.

COMMISSIONER

 1   Exhibit 1 Statement of Cheryl Creighton dated 18 May 2015

 2   Exhibit 2 Statement of Cheryl Creighton dated 27 July 2015

 3   Exhibit 6 Statement of Peter Doherty

 4   Exhibit 7 – Statement of James Hackett

 5   Exhibit 9 – Statutory Declaration of Diane Casey

 6   Exhibit 10 – Statement of Victoria Carroll

 7   Exhibit 11 – Statement of Jacqueline Doreen Keenan

 8   Exhibit 7 Statement of James Hackett attachment marked ‘JH1’

 9   PN 1160 - 1162

 10   Exhibit 7 Statement of James Hackett Paragraph 12

 11   Exhibit 7 Statement of James Hackett attachment marked ‘JH3’

 12   Exhibit 7 Statement of James Hackett Paragraph 13

 13   Exhibit 7 Statement of James Hackett attachment marked ‘JH1’

 14   PN 813

 15   PN 813

 16   PN 814

 17   PN815

 18   Exhibit 10 – Statement of Victoria Carroll Paragraph 2

 19   Exhibit 10 – Statement of Victoria Carroll Paragraph 4

 20   Exhibit 11 Statement of Jacqueline Doreen Keenan Paragraph 6

 21   Exhibit 11 Statement of Jacqueline Doreen Keenan Paragraph 11

 22   Exhibit 10 – Statement of Victoria Carroll Paragraph 5

 23   Exhibit 1 Statement of Cheryl Creighton dated 18 May 2015 paragraph 9

 24   Exhibit 1 Statement of Cheryl Creighton dated 18 May 2015 paragraph 11

 25   Exhibit 1 Statement of Cheryl Creighton dated 18 May 2015 paragraph 12 attachment CC 1

 26   Exhibit 11 Statement of Jacqueline Doreen Keenan Paragraph 11

 27   Exhibit 6 at Paragraph 5

 28   Exhibit 6 Statement of Peter Doherty Paragraph 6

 29   Exhibit 1 Statement of Cheryl Creighton dated 18 May 2015 paragraph 15 attachment CC 2

 30   Exhibit 6 Statement of Peter Doherty Paragraph 9

 31   Exhibit 10 – Statement of Victoria Carroll Paragraph 9

 32   Exhibit 10 – Statement of Victoria Carroll Paragraph 10

 33   Exhibit 10 – Statement of Victoria Carroll Paragraph 12

 34   PN 1163 – 1189

 35   Exhibit 10 – Statement of Victoria Carroll Paragraph 14

 36   Exhibit 11 Statement of Jacqueline Doreen Keenan Paragraph 14

 37   Exhibit 11 Statement of Jacqueline Doreen Keenan

 38   Exhibit 10 – Statement of Victoria Carroll Paragraph 16

 39   Exhibit 11 Statement of Jacqueline Doreen Keenan Paragraph 14

 40   Exhibit 11 Statement of Jacqueline Doreen Keenan Paragraph 14

 41   Exhibit 11 Statement of Jacqueline Doreen Keenan

 42   Exhibit 10 – Statement of Victoria Carroll Paragraph 21

 43   Exhibit 11 Statement of Jacqueline Doreen Keenan Paragraph 14

 44   PN200

 45   PN205

 46   PN224

 47   Exhibit 11 Statement of Jacqueline Doreen Keenan Paragraph 5

 48   PN 914-PN919

 49   PN 921

 50   Exhibit 10 – Statement of Victoria Carroll Paragraph 27

 51   Exhibit 10 – Statement of Victoria Carroll Paragraph 31

 52   Exhibit 10 – Statement of Victoria Carroll Paragraph 31

 53   Exhibit 10 – Statement of Victoria Carroll Paragraph 34

 54   Exhibit 10 – Statement of Victoria Carroll Paragraph 35

 55   Exhibit 10 – Statement of Victoria Carroll Paragraph 41

 56   Exhibit 2 Statement of Cheryl Creighton dated 27 July 2015 Paragraph 4

 57   Exhibit 2 Statement of Cheryl Creighton dated 27 July 2015 Paragraph 8

 58   Exhibit 2 Statement of Cheryl Creighton dated 27 July 2015 Paragraph 9

 59   Exhibit 2 Statement of Cheryl Creighton dated 27 July 2015 Paragraph 11

 60   Exhibit 2 Statement of Cheryl Creighton dated 27 July 2015 Paragraph 14

 61   Exhibit 8 – Screenshot of the CCTV Footage

 62   PN1011

 63   PN1016

 64   PN1020

 65   PN1017

 66   PN 1563

 67   Exhibit 8 – Screenshot of the CCTV Footage

 68   PN1055-PN1056

 69   PN1111 – PN1114

 70   PN1084

 71   PN 1074- PN1075

 72   PN 1086

 73   PN247

 74   Exhibit 8 – Screenshot of the CCTV Footage

 75   PN 364

 76   PN369

 77   PN379

 78   PN382

 79   PN403

 80   PN474 –PN481

 81   PN414

 82   PN469

 83   Exhibit 2 Statement of Cheryl Creighton dated 27 July 2015 Paragraph 10

 84   Exhibit 2 Statement of Cheryl Creighton dated 27 July 2015 Paragraphs 9-12

 85   PN 425-PN426

 86   PN 427-PN438

 87   PN 500-PN512

 88   PN 823

 89   PN 662-663

 90   PN 670-685

Printed by authority of the Commonwealth Government Printer

<Price code A, PR569358>