Chris Zepidis v Commonwealth Bank of Australia

[2018] FWC 7110

[2018] FWC 7110

FAIR WORK COMMISSION

DECISION

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

Chris Zepidis
v
Commonwealth Bank of Australia
(U2018/4091)

COMMISSIONER CAMBRIDGE SYDNEY, 7 DECEMBER 2018

Unfair dismissal - misconduct involving theft - factual finding of employer proven upon requisite standard - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 18 April 2018. The application was made by Chris Zepidis (the applicant) who has been represented by firstly, Unfair Dismissals Direct, and then, secondly by Limestone Law Pty Ltd and then subsequently by Slater and Gordon Lawyers. The respondent employer is the Commonwealth Bank of Australia (the employer or the Bank) who has been represented by Maddocks Lawyers.

[2] The application indicated that the date that the applicant’s dismissal took effect was 29 March 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 17, 18 September, and 17 October 2018.

[4] At the Hearing, the Commission confirmed that permission had been granted, pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. The applicant was represented by Mr D Campbell, Senior Counsel, together with Mr J Ronald, Counsel, instructed by Mr M Carrick, solicitor from Slater and Gordon Lawyers. The Bank was represented by Mr D Mahendra, Counsel, who was instructed by Ms B Maynard, solicitor from Maddocks Lawyers.

[5] As the dismissal of the applicant was made upon a finding of serious misconduct involving theft, the Parties agreed that the Bank would present its evidentiary case before that of the applicant. MrMahendra called four witnesses who provided evidence on behalf of the Bank. Mr Campbell called the applicant as the only witness who provided evidence in support of the unfair dismissal claim.

Background

[6] The applicant had worked for the Bank for about 3 years and 3 months. The applicant was initially engaged as a Customer Service Representative (CSR), and he was promoted to the position of Customer Service Specialist (CSS) within the first year of his employment. The applicant received further promotions such that at the time of his dismissal he was engaged in the position of Personal Lender. The applicant worked as a Personal Lender at two separate Branches of the Bank, involving 2 days per week at the Bankstown Branch, and the other 3 days per week at the Earlwood Branch.

[7] Prior to the events leading to his dismissal, the work of the applicant was without recorded complaint regarding his performance or conduct. Indeed, the applicant was regarded by his manager as a competent and well performing employee with great potential for significant career advancement with the Bank.

[8] In January 2018, the Bank commenced an investigation as a result of an anonymous call made to a third-party contractor engaged by the Bank to manage what is referred to as a “speak up hotline”. The investigation related to various anonymously reported activities at the Earlwood Branch of the Bank. The preliminary aspects of the investigation included a review of records of end of day cash balance discrepancies, together with other financial transaction records of the Branch, and CCTV footage taken at the Earlwood Branch on 15 December 2017.

[9] On 27 February 2018, an Investigator from the Bank’s Group Investigations Team, Mr Scott, telephoned the applicant and requested that he attend an interview to discuss potential breaches of the Bank’s security policies and cash control procedures involving a number of discrepancies that had been identified at the Earlwood Branch in 2017. The applicant agreed to this request, and on the following day, 28 February 2018, he participated in a recorded interview which was conducted by Mr Scott and at which another member of the Bank’s investigations team was present. Although the applicant was invited to bring a support person to the interview he attended alone.

[10] During the course of the interview conducted on 28 February, the applicant was shown parts of CCTV footage taken at the Earlwood Branch on 15 December 2017. The applicant provided answers to numerous questions about aspects of the CCTV footage of 15 December 2017. The investigation conducted by Mr Scott involved recorded interviews with other staff of the Earlwood Branch.

[11] On 2 March 2018, Mr Scott sent the applicant a letter which confirmed that there were 5 allegations raised against him and which were the subject of the investigation. Further, the applicant was advised that if the allegations were substantiated, his conduct would constitute breaches of various policies of the Bank and also involve, in respect to allegation number 4, what was described as the misappropriation of $3,400.00 cash. Details of the allegations were provided, and the applicant was invited to respond in writing including any further representations regarding any disciplinary action that might arise in the event that the allegations were found to be substantiated.

[12] On 3 March 2018, the applicant responded to Mr Scott’s letter of 2 March requesting, inter alia, to be provided with; a copy of the tape of the recorded interview of 28 February 2018; a copy of the CCTV recording at the Earlwood Branch for the whole of the day of 15 December 2017; and copies of recorded interviews with any other staff at the Earlwood Branch undertaken in respect to the investigation. Subsequently, on 5 March 2018, Mr Scott provided the applicant with a copy of the recording of the interview of 28 February, but he refused to provide recordings of interviews conducted with other staff, and further, advised that the applicant could view the CCTV footage by appointment at the Bank offices. Further, Mr Scott advised that the earlier requirement to provide a written response to the allegations and any other representations by 5 pm on 6 March 2018, had been extended to 8 March 2018.

[13] On 5 March 2018, the applicant made requests for further information relating to the allegations and the investigation being conducted by Mr Scott. On 6 March 2018, the applicant was suspended from duty on full pay, pending completion of the investigation and decision regarding the allegations that had been made against him. Subsequently, the applicant was advised that the time by which he was to provide a written response and any other representations in relation to the allegations, had been extended until 3 pm on 16 March 2018.

[14] On 16 March 2018, the applicant provided Mr Scott with a letter of response to the allegations that had been made against him. In summary, the applicant’s letter of response included that he; reiterated complaint that he had not been provided with access to particular material, notably the recorded interviews of other staff from the Earlwood Branch; denied the conduct mentioned in allegation 1; made admissions as to the conduct particularised in allegations 2 and 3, with explanations that were said to justify or militate any misconduct associated with his actions; and he strongly denied the conduct attributed to him in allegations 4 and 5.

[15] The applicant’s letter of response understandably focused upon allegation number 4 which was the most serious matter involving the alleged misappropriation of $3,400.00 cash. In respect of allegation number 4, the applicant recognised that the matter involved an allegation of theft which he flatly denied. In support of this denial the applicant included 7 detailed aspects of defence against any finding that the applicant had misappropriated $3,400.00 on 15 December 2017, whilst at work at the Earlwood Branch.

[16] Mr Scott considered the letter of response provided by the applicant and in particular he undertook a further review of the CCTV footage, particularly as it related to allegation number 4. Following his further consideration, Mr Scott finalised the investigation and he prepared a report dated 19 March 2018, which was provided to the Bank’s Regional General Manager.

[17] In summary, the investigation report made by Mr Scott included findings that; allegation 1 was not substantiated; allegations 2 and 3 were substantiated on the basis of full admissions made by the applicant; and, allegations 4 and 5 were substantiated. The investigation report was provided to the Bank’s Area Manager Retail, Mr Alameddine. Mr Alameddine reviewed the investigation report and the supporting documentation, and he discussed this material with other members of the Bank’s management including workplace relations specialists.

[18] Mr Alameddine decided that the applicant’s misconduct in respect of the misappropriation as alleged and found in allegation 4, constituted theft for which the applicant would be dismissed. Although Mr Alameddine recognised that due to the seriousness of the applicant’s misconduct his employment could be dismissed without notice, he nevertheless made a decision to still provide the applicant with pay representing 3 weeks’ notice of termination.

[19] On 27 March 2018, Mr Alameddine telephoned the applicant and requested that he attend a meeting in order to be provided with the Bank’s decision regarding the investigation into the allegations that had been made against him. On 29 March 2018, the applicant attended a meeting with Mr Alameddine and other representatives of the Bank’s management during which he was advised that as a result of the findings made which had substantiated, in particular, allegation number 4, his employment was terminated effective immediately with the provision of a payment of 3 weeks salary in lieu of notice. The applicant was provided with a letter dated 29 March 2018, which confirmed his dismissal.

The Case for the Employer

[20] The employer was represented by Mr Mahendra, who submitted that the dismissal of the applicant was not unfair. Mr Mahendra made submissions which referred to documentary material that had been filed on behalf of the Bank.

[21] Mr Mahendra said that the determination required in this instance involved a relatively straightforward case. Mr Mahendra submitted that the Commission should be comfortably satisfied on the evidence that the misconduct alleged against the applicant took place. Mr Mahendra said that the facts of the case were clear, and that the applicant’s conduct in misappropriating $3,400.00 constituted theft in accordance with Regulation 1.07 of the Fair Work Regulations. MrMahendra said that the Commission would be satisfied that the conduct occurred when one looked at the objective facts in this case. Further, Mr Mahendra submitted that the applicant’s explanation for his actions did not make any sense.

[22] Mr Mahendra made submissions which analysed the evidence provided by the CCTV of 15 December 2017. Mr Mahendra said that the CCTV footage clearly showed that the applicant had divided a bundle of $100 notes into one larger and one smaller portion, and he put the larger portion into the Teller Cash Recycler machine (TCR), and then he took the smaller portion to the back of the house area of the Earlwood Branch. Mr Mahendra submitted that the objective evidence established that the explanation that the applicant attempted to give for his actions in taking the smaller portion of notes to be secured in the safe at the back of the house area, could not be accepted because the safe was locked and there was no way that the applicant could have put that money into the safe.

[23] Mr Mahendra further submitted that an examination of the CCTV footage as well as the evidence given by each of the Bank’s witnesses, established that the misconduct of the applicant had occurred. Mr Mahendra said that the CCTV footage showed that on various other occasions, whenever employees went to the back of the house area they are seen to be carrying the keys that are needed to open the safe. However, according to the submissions made by Mr Mahendra, shortly after 9:29 am on 15 December 2017, the applicant is shown to walk to the back of the house area with the smaller portion of cash and without any key to enable him to open the safe. Mr Mahendra said that there was no other rational explanation for the disappearance of the money apart from the applicant having misappropriated it.

[24] Mr Mahendra also submitted that the Bank had conducted a fair investigation and provided proper opportunity for the applicant to respond to the allegations regarding his conduct. The submissions made by Mr Mahendra dealt with the criteria contained in s. 387 of the Act which included that the applicant had been given an opportunity to have a support person present during the interview investigation process as well as at meetings that followed when the allegations were put to him. Further, Mr Mahendra submitted that there were no other factors upon which it could be established that the dismissal of the applicant was harsh, unjust or unreasonable.

[25] It was further submitted by Mr Mahendra that an objective examination of all of the evidence quite clearly established that the applicant misappropriated $3,400.00. Mr Mahendra submitted that this matter quite clearly involved a case where the Commission would find that the dismissal was fair.

[26] In summary, Mr Mahendra submitted that the matter required a straightforward examination of the evidence of the witnesses, and the CCTV footage. Mr Mahendra said that when this evidence was properly examined, the applicant’s explanation for taking the bundle of money to the back area of the Branch office could not be adopted. Consequently, according to Mr Mahendra, the Bank had discharged its onus and established the misconduct of the applicant to the requisite standard of proof. Mr Mahendra urged that the application for unfair dismissal remedy be dismissed.

The Case for the Applicant

[27] Mr Campbell, who represented the applicant, made verbal submissions which elaborated upon documentary material that had been filed on behalf of the applicant. Mr Campbell firstly submitted that the payment to the applicant of an amount in respect of notice together with the absence of any report to the police, in circumstances involving alleged theft, indicated an absence of the comfortable satisfaction that was required to properly establish a finding of theft. In particular, Mr Campbell said that theft is one of those rare circumstances where you would cut pay off immediately if you were comfortably satisfied that it had occurred.

[28] The submissions made on behalf of the applicant contended that where allegations were made which were of a sufficiently serious nature, including allegations of criminal conduct (such as theft), the evidence supporting the allegation must not only satisfy what is referred to as the Briginshaw 1 test, weight must also be given to the presumption of innocence and the exactness of proof that is required. In this regard, Mr Campbell submitted that there were a number of important factors which operated as basis to reject the finding of theft that had been made by the Bank against the applicant.

[29] It was submitted by Mr Campbell that the applicant had consistently and firmly denied taking any money from the Bank at any time. Mr Campbell submitted that in any consideration of the circumstances in this instance, a basic assumption should be applied that people don’t generally engage in theft. Further, according to Mr Campbell, the applicant was a person of good character. Mr Campbell said that people of good character don’t generally engage in conduct such as theft.

[30] Mr Campbell further submitted that there was no direct evidence that the applicant actually stole any money. Mr Campbell said it was just ludicrous to suggest that someone who knew they were in front of the CCTV cameras, and in the company of other employees including their manager, would misappropriate the money in such circumstances. Mr Campbell said that there was no evidence that the applicant had any knowledge as to where the CCTV cameras were or what they showed, and it was “high stakes poker” for the applicant to have misappropriated the money as alleged by the Bank. Mr Campbell submitted that as the applicant had previously stated during the investigation, it was implausible that he would attempt to steal money in circumstances where he was in the presence of numerous staff members and subject to CCTV surveillance.

[31] Mr Campbell made further submissions which criticised the witness evidence provided by other staff members from the Earlwood Branch of the Bank. Particular criticism was made of alleged inconsistencies and inaccuracies in the evidence provided by Ms Ibrahim, who was the Lead CSR at the Earlwood Branch on 15 December 2017. Mr Campbell highlighted particular inconsistencies and inaccuracies with the evidence provided by witnesses for the Bank, and he made further criticism of the absence of evidence from one particular witness who was closely involved in the events that were the subject of the CCTV footage from 15 December 2017.

[32] Further, Mr Campbell submitted that an analysis of the evidence including CCTV footage from throughout the day, established that the safe had been left open at the time that the applicant moved to the back of the house area of the Branch office with a full bundle of notes referred to as a “section”. Therefore, according to the submissions made by Mr Campbell, there was a perfectly rational reason why the applicant took the bundle of $100 notes to secure them in the safe that was located in the strong room at the back of the house area of the Earlwood Branch office.

[33] Mr Campbell also submitted that the CCTV video did not allow for anyone to draw a comfortable inference one way or another, as to the amount of money that the applicant had when he walked to the back area of the Branch office. Mr Campbell said that all that could be determined was that it was a wad of $100 notes, and it was impossible to say how many notes were actually in the possession of the applicant. However, the applicant said that it was a complete “section” which represented $10,000.00.

[34] Mr Campbell made further submissions which stressed that in matters involving serious misconduct, and certainly in cases involving potential criminal conduct, what he referred to as the Briginshaw standard was the applicable test to be applied to any factual determination as to whether the conduct as alleged was properly proven. In this regard, Mr Campbell referred to and quoted an extract from the High Court Judgement in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd  2(Neat Holdings).

[35] Consequently, Mr Campbell submitted that the applicant was entitled to draw upon his good character, and the openness with which he gave consistent answers to questions regarding the allegations made against him. Further, Mr Campbell submitted that there was an absence of any clear or strict proof as was required, but rather, an errant, internally inconsistent, implausible and unacceptable account by those that provided witness evidence on behalf of the Bank. In addition, Mr Campbell stressed that there was important evidence that was not provided as a result of the absence of evidence from one of the relevant staff present on 15 December 2017 at the Earlwood Branch.

[36] In summary, Mr Campbell submitted that when all of the evidence was properly considered, and the appropriate level of proof was applied, the result rendered an irresistible conclusion that the initial opinion formulated by the Bank had not been shown, to the required standard, to have taken place. Consequently, Mr Campbell submitted that unfairness had been demonstrated by reason of the fact that the allegation could not be made out. Mr Campbell submitted that the applicant should be provided with a remedy of reinstatement particularly as the Bank was “a pretty big entity” and “there’s plenty of other places he can go.”

Consideration

[37] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are identified as:

“(a) the person has been dismissed; and

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

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

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

[38] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.

[39] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are stipulated as:

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

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

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

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

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

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

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

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

387 (a) - Valid reason for the dismissal related to capacity or conduct

[40] The determination of this case has involved a fundamental and crucial requirement to resolve a factual contest about the applicant’s alleged misappropriation of $3,400.00 in cash, from the Bank’s Earlwood Branch on 15 December 2017. The determination of this factual contest was acknowledged to be pivotal to any success or failure of the application for unfair dismissal remedy, as was acknowledged by Mr Campbell when he stated: “… in the event that the factual matter is made out, then it is probably common ground that we would have nothing we could say in relation to the question of the unfairness of the dismissal.” 3

[41] The factual contest under examination has involved alleged conduct involving what might otherwise represent the criminal activity of larceny. However, the matter requires determination on the balance of probabilities, the civil standard of proof as it is described, and not the criminal standard, which requires proof beyond reasonable doubt. It is well established that the civil standard of proof should be elevated commensurate with the seriousness of the conduct under examination. However, such elevation of the civil standard does not translate into the criminal standard, and a matter remains to be determined on the balance of probabilities albeit that in more serious cases, a more exacting or stringent satisfaction would be required.

[42] Further, in any application of an elevated level of the civil standard of proof in circumstances involving what might otherwise represent criminal conduct, it is appropriate to adopt a significant degree of caution in recognition of; (a) the seriousness attached to any particular finding, and (b), the fact that most people do not ordinarily engage in criminal conduct. However, that degree of caution should not be misconstrued to require an exactness of proof necessitating the identification of clear and cogent evidence beyond that which would provide for a comfortable satisfaction upon which any finding is made. The following extract from the Neat Holdings Judgement is on point:

“When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.” 4

The CCTV Footage

[43] The starting point for the determination of the factual contest in this instance has logically been an examination of the CCTV footage involving the applicant and his particular conduct as can be observed from about 9:27 am on 15 December 2017. The examination of the CCTV footage should necessarily be undertaken in context, that is, with the knowledge of the recorded cash discrepancy in the Branch on that day.

[44] The Earlwood Branch daily cash discrepancy reports showed that on 15 December 2017, the Branch had a debit discrepancy of $3,400.50. This amount could not be subsequently located or accounted for, and on 21 December 2017, the Branch Manager completed a write off request in respect of this amount. This write off request was approved by the relevant Branch Support Manager.

[45] In this context, the applicant’s own reaction when he was first shown the relevant part of the CCTV footage during his interview with Mr Scott on 28 February 2018, provided a succinct summary of the unavoidable impression that is obtained from a detailed and repeated viewing of the relevant part of the CCTV footage. Relevantly, during the interview on 28 February, as Mr Scott was showing the applicant the pertinent part of the CCTV footage, the applicant stated:

“Now, that looks really bad on my behalf hey?” 5

[46] The CCTV footage, at 9:28:46, shows the applicant removing the binding from around two “sections” of notes. (A “section” is a term used to describe a bound bundle of 100 notes of any particular denomination.) At 9:28:49, the applicant separates the combined, unbound “sections” of notes into two portions, and he places with his left hand, a smaller portion of the notes onto the counter, then at 9:28:52 he places the other larger portion of notes into the top of the TCR machine.

[47] At 9:28:59, the applicant collects a note, (or notes) that has been rejected from the bottom of the TCR machine and he “re-feeds” it into the top of the TCR machine. The smaller portion of the notes that was separated from the combined “sections” is at this stage, clearly visible on the counter in the position where the applicant had earlier placed that portion of notes.

[48] At 9:29:07, the applicant picks up the smaller portion of notes from the counter with his left hand. At 9:29:11, the applicant commences to move away from the counter with the smaller portion of notes clearly visible in his left hand. At 9:29:13, the applicant moves a chair as he makes his way towards the open door to the rear of the office area. At 9:29:14, the applicant walks toward the open door with the smaller portion of notes clearly visible in his left hand.

[49] At 9:29:15, the applicant steps across the threshold of the doorway into the back office area of the Branch office. At 9:29:16, the applicant is partly obscured as he has moved to his left in the back of office area, and although he is almost completely obscured from view, he appears to bend forward at 9:29:17. At 9:29:18, the partly obscured applicant can be seen walking towards the strong room door in the back of office area, and by 9:29:19, the applicant appears to have walked into the strong room.

[50] At 9:29:27, the applicant reappears from the entrance to the strong room in the back of office area, and he then walks through the doorway back into the general office area of the Branch. As he walks back through the doorway into the general office area, at 9:29:29, the applicant clearly does not have anything in either of his hands.

[51] At 9:29:34, the applicant has resumed a position adjacent to the TCR machine, and from where he had, a short time earlier (9:28:46) unbundled the “sections” of notes and split them into two separate, unequal portions. At 9:29:53 the applicant collects rejected notes from the bottom of the TCR machine and proceeds to “re-feed” them into the top of the machine.

[52] At 9:30:15, the Branch manager closes the door between the general office area and the back of office area and through which the applicant had, a short time earlier, (circa 9:29:29) returned from the area of the strong room. At 9:30:18, the applicant checks the reject chute of the TCR machine for any further rejected notes. At 9:30:50, the applicant walks away from the counter area and he proceeds to walk towards the front public entrance of the Branch office.

[53] Consequently, in summary, the CCTV footage shows that in the period of time between 9:28:46 and about 9:29:29, the applicant took an unbundled number of notes that he had separated as a smaller portion of two combined, unbundled “sections,” and which were intended to be fed into the TCR machine, away from the counter area of the general office, and out into the back of office area. The applicant then returned from the back of office area without that portion of notes.

The Applicant’s Explanation

[54] As the applicant acknowledged during his interview on 28 February 2018, any reasonable, objective and careful contemplation of the CCTV footage, undertaken in context, would logically conclude that it had captured a blatant act of larceny. As the applicant stated during the interview on 28 February:

“All right, I know what I, you know, what I mean. Like, I know it looks bad, trust me I know that looks disgustingly bad.” 6

[55] The CCTV footage unequivocally established that the applicant had taken an unbundled number of notes that were intended to have been fed into the TCR machine, and he walked to the back of office and strong room areas of the Branch with those notes. A short time later, he returned to the general office area of the Branch without those notes.

[56] However, the applicant said that he had taken a complete “section” of notes, representing $10,000.00, which he said could not have been fed into the TCR machine before the Branch office opened, and he took that “section” back to the strong room where he placed it in the safe which had been left open. Consequently, for the applicant’s explanation to overcome what he recognised to be something that “looks disgustingly bad” two fundamental facts needed to be established. Firstly, the notes that were in his hand when he left the general office area of the Branch between 9:29:11 and 9:29:14, had to be a complete “section” and not a portion of a “section” of notes. Secondly, the safe that was located in the strong room and where the applicant said that he took the “section” needed to have been left open.

A “Section” or a Portion of Notes

[57] A careful and repeated examination of the CCTV footage does not permit any finding to be made that the applicant was holding a complete “section” of notes when he left the general office area of the Branch, circa 9:29:11. Indeed, the CCTV footage has provided compelling visual proof that the applicant was holding a portion of two previously combined “sections” of notes in his left hand as he moved away from the counter area in the general office and proceeded to the back office area of the Branch.

[58] In addition to the plain visual proof provided by the CCTV footage, the applicant’s evidence during cross-examination also confirmed that he was not holding a complete “section” of notes when he left the counter area of the general office and proceeded to the back of office area. The following example of the applicant’s strangely illogical testimony is provided:

“If we then roll forward, you remove the white collars from both sections of the bundles together and then you split the bundle with the larger bundle on one side and the smaller bundle on the desk, correct? --- Correct.

So the bundle on the desk isn’t an entire section, is it? --- It is.

What it is, in fact, is a smaller section, out of the two sections that you then split, correct? --- No.

That smaller bundle is what you then take and go to the back of the house area, correct? --- Yes.” 7

Safe Open or Closed

[59] The second factual finding that was vital to the applicant’s explanation for his actions on 15 December 2017, involved a finding that the safe was open at the time, circa 9:29:18, when he went to the strong room with the notes that were intended for the TCR machine. The applicant clearly did not have a key for the safe, and he proffered that the safe was left open during most of the day. In support of this proposition, the applicant asserted that CCTV showed that at other times during the day, individuals left the general office area without a key, and they then returned from the back office area with money that would have logically been obtained from the safe.

[60] Once again, a careful and repeated examination of all of the relevant parts of the CCTV footage from throughout the day, has established that on each occasion that other individuals left the general office area, walked to the back of office area, and returned with money, they did so in possession of keys to the safe, although importantly, these keys were not always attached to a lanyard. In this regard, evidence was provided 8 which established that the keys for the safe were, on occasions, detached from the lanyard that usually held both the keys to the safe and various other keys.

[61] In addition, although the evidence from Ms Ibrahim was inaccurate in respect to certain matters such as the total amount of money that she believed she had allocated for dispatch into the TCR machines on 15 December 2017, she provided very sound, believable evidence that she had closed the safe before she had left the strong room that morning. Ms Ibrahim provided very firm evidence about the closure of the safe when the issue was first raised with her during her interview on 28 February 2018, 9 and her resolute position was unmoved during cross-examination.10

[62] A careful consideration of the entire evidence regarding the state of the safe at the time that the applicant said that he put the notes (a “section” or otherwise) into it, has provided compelling basis for a finding that it was locked. Consequently, without the keys to the safe, the applicant could not have put the notes into it as he has asserted.

Other Noteworthy Aspects of the Applicant’s Defence/Explanation

[63] The applicant also suggested that his actions on the morning of 15 December 2017, occurred in the open view of other staff including the Branch manager, and in a situation where there was known to be CCTV surveillance. It was asserted that the openness of the circumstances heightened the prospect for detection, and thus made the conduct that much more unlikely. Prima facie, there is some cogency to this proposition.

[64] However, despite the brazenness of the applicant’s conduct, had it not been for the anonymous report to the “speak up hotline” the matter would have passed without any detection. The staff at the Branch, other than the person that later called the “speak up hotline,” seemed to be oblivious to the applicant’s actions, perhaps because it was so brazen. Subsequently the Bank had written off the $3,400.00 misappropriated by the applicant. Therefore, had it not been for the anonymous report, the applicant’s larceny would have been successful.

[65] There is also a further significant implausibility associated with the applicant’s explanation for his actions on the morning of 15 December 2017. The evidence established that in any circumstance where money that was designated for loading into the TCR machine could not be taken by the TCR machine, for whatever reason, that money would be placed in a secure receptacle near the TCR machine which was referred to as the “mute draw” or “mute bin”. The applicant mentioned the process for utilisation of the “mute draw” during his interview on 28 February 11, and this was confirmed by the evidence provided by Ms Ibrahim particularly during cross-examination when she stated:

“But you see, if it is decided that there is more than what was adequate, it can be taken back into the safe in lieu of being put into the TCR? --- No, but you put it into the mute draw and you add it in at the end of the day.” 12

[66] Consequently, if the bundle of notes that was in the applicants left-hand at circa 9:29:07, (whether it was a complete “section” or a portion), required safe keeping, the closest and most logical place for those notes was the “mute” draw. The “mute” draw was clearly the most obvious place for securing the bundle of notes that the applicant had in his left hand, and taking those notes, purportedly to the safe, was an entirely implausible alternative to the “mute” draw.

[67] Further, the applicant’s explanation for his actions on 15 December 2017, also suffered from an absence of any evidence that, at any stage, he reported to any other staff member that he had returned a “section” of notes to the safe during the morning pre-opening activities.

[68] After careful examination of the totality of the evidence, I have no hesitation in rejecting the explanation that the applicant has proffered to avoid the obvious implications of what he recognised to be his disgustingly bad conduct. Consequently, notwithstanding the more exacting and stringent level of satisfaction that is required in the application of the civil standard of proof in instances involving conduct that may constitute criminal activity, the evidence in this instance has more than comfortably confirmed the misconduct found by the employer as the reason for the dismissal of the applicant.

[69] Further, in my view, the evidence in this instance would have strong prospect to provide for satisfaction of the criminal standard of proof, that is, proof beyond reasonable doubt. Therefore, it was surprising to find that the Bank had not reported the matter to the police, and that it also provided the applicant with a payment of three weeks salary in lieu of notice in circumstances where it had found that the applicant had stolen money from the Bank.

[70] Consequently, there was valid reason for the dismissal of the applicant. The findings of misconduct made by the Bank, specifically including the finding that the applicant misappropriated $3,400.00 cash have been verified.

387 (b) - Notification of reason for dismissal

[71] The Bank provided written notification of the reason for the applicant's dismissal. No issue was taken by the applicant in respect of the question of notification.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[72] The Bank provided the applicant with appropriate opportunities to respond. No issue was taken by the applicant in respect of the question of opportunity to respond.

387 (d) - Unreasonable refusal to allow a support person to assist

[73] There was no evidence that the applicant was refused the assistance of a support person during the various discussions and investigations that were held regarding the events of 15 December 2017. No issue was taken by the applicant in respect of the question of any unreasonable refusal to allow a support person to assist.

387 (e) - Warning about unsatisfactory performance

[74] This factor is not relevant to the circumstances in this instance.

387 (f) - Size of enterprise likely to impact on procedures

[75] The size of the employer’s operation would not have been likely to have a significant impact on procedures surrounding the dismissal of the applicant.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[76] This factor is not relevant to the circumstances in this instance.

387 (h) - Other relevant matters

[77] There was no evidence provided about other relevant matters that may have been appropriate aspects of consideration as to whether the dismissal of the applicant was unfair.

Conclusion

[78] The applicant was dismissed primarily upon a finding that, at the Earlwood Branch of the Bank on 15 December 2017, he had misappropriated $3,400.00 cash. This finding was established following a comprehensive investigation into a number of allegations which had been raised against the applicant. The Bank relevantly found that the most significant allegation regarding the misappropriation of $3,400.00 cash was proven to the requisite standard.

[79] Upon full Hearing of the applicant’s claim for unfair dismissal remedy, the findings of misconduct made by the Bank have been confirmed by the Commission. There were no other factors which militated against the primary factual findings which represented the reason for the dismissal of the applicant.

[80] Consequently, the employer dismissed the applicant for valid reason relating to the applicant's conduct. That conduct represented gross and wilful misconduct sufficient to justify summary dismissal. Surprisingly however, the applicant was dismissed with payment in lieu of notice.

[81] The dismissal of the applicant was not harsh, nor was it unjust, or unreasonable. Therefore, the application for unfair dismissal remedy must be dismissed and an Order to that effect will be issued accordingly.

COMMISSIONER

Appearances:

Mr D Campbell, Senior Counsel with Mr J Ronald, Counseland Mr M Carrick from Slater & Gordon Lawyers for the Applicant.

Mr D Mahendra, Counsel with Ms B Maynard from Maddocks Lawyersfor the Respondent.

Hearing details:

2018.

Sydney:

September, 17 & 18.

October, 17.

Printed by authority of the Commonwealth Government Printer

<PR702470>

 1 This is reference to the case of Briginshaw v Briginshaw (1938) 60 CLR 336.

 2   Neat Holdings Pty Ltdv Karajan Holdings Pty Ltd [1992] HCA 66, 110 ALR 449.

 3   Transcript (17/09/18) @ PN15.

 4   Ibid @ paragraph 3.

 5   Exhibit 6 @ page 95.

 6   Exhibit 6 @ page 98.

 7   Transcript (17/10/18) @ PN286 – PN289.

 8   Transcript (18/09/18) @ PN1545.

 9   Exhibit 6 @ page 61.

 10   See transcript (18/09/18) @ PN 1721, 1722, 1733-1736, 1750 and PN 1879.

 11   See for example, Exhibit 6 @ page 86.

 12   Transcript (18/09/18) @ PN1938.