Edwin Soosai v Able Australia
[2020] FWC 378
•24 JANUARY 2020
| [2020] FWC 378 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Edwin Soosai
v
Able Australia
(U2019/9936)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 24 JANUARY 2020 |
Application for unfair dismissal remedy – concession of one allegation – contest of evidence over others – procedural fairness afforded - importance of financial propriety and records for this type of job - application dismissed.
Introduction
[1] On 5 September 2019, the applicant, Mr Edwin Soosai, filed an application under section 397 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy following his dismissal with notice by Able Australia (the respondent) on 16 August 2019. It is agreed that all jurisdictional requirements are met, and I so find. The only issue between the parties is that of s.387, and it is agreed that the respondent is not a small business.
[2] Written submissions and evidentiary material were filed in accordance with amended directions issued on 7 November 2019.
[3] Mr Soosai represented himself, while the respondent was represented by Mr Bell of counsel. Mr Soosai was able to present submissions, cross examine and participate in the hearing, and was provided with extra copies of submissions and the like to assist him.
[4] On 5 December 2019 I listed the matter for a Mention/Directions Hearing. The matter was heard on 16 December 2019 with the following witnesses giving evidence:
• Ms Nirosha Weerasinghe; Disability Support Worker – Able Australia;
• Mr Mustapha Sankoh, Disability Support Worker – Able Australia;
• Ms Pilar Valdes, Disability Support Worker – Able Australia;
• Ms Angela Politis, National Director People and Culture – Able Australia; and
• Mr Edwin Soosai, the applicant.
Factual Background
[5] Able Australia is a provider of disability and community support services for adults and seniors through supported living arrangements for their clients. Mr Soosai was employed by Able Australia as a disability support worker and was a Team Leader at two of the support accommodation locations at:
• 1 Linlithgow Street, Mitcham (“Mitcham East”); and
• Unit 1, 2 Benares Street, Mitcham (“Mitcham Central”).
[6] In May of 2019, Mr Soosai was stood down on full pay pending an investigation following a complaint made from a resident of Mitcham Central regarding his conduct. On 8 May 2019 and during Mr Soosai’s period of stand down, Mr Soosai deposited $2,200 into the Mitcham East housekeeping bank account and $1,450 into the Mitcham Central housekeeping bank account. These deposits were considered by Able Australia to be unusual which triggered a separate investigation with respect to Mr Soosai’s financial conduct.
[7] On 8 July 2019, Mr Soosai attended an interview with an independent investigator where he was supported by a union representative. On 12 August 2019, Able Australia identified the following transactions as financial misconduct by Mr Soosai and asked for a response to certain allegations, which in their current form are:
Allegation 1
On 8 February 2019, 2 March 2019, and 18 April 2019, Mr Soosai failed to record withdrawals of cash from a client’s account (Ms Patricia Rodgers) at the Mitcham East location in a Client Expense Recording Sheet (“CERS”) which amounted to $1,350.00 missing from this client’s bank account; and
Allegation 2
On 3 May 2019, Mr Soosai failed to record a withdrawal of $800.00 from the Mitcham East account conducted on 1 May 2019 in the Housekeeping Expenses Form (“HEF”) or the Staff, Shift and Communications Book (“Communication Book”);
Allegation 3
On 3 May 2019, Mr Soosai failed to record an additional $1,400.00 that he claimed was in a safe at the Mitcham East location in either the HEF or Communication Book;
Allegation 4
On 3 May 2019, Mr Soosai left the Mitcham East location with all house bank account debit cards, client debit cards, and a total of $3,650.00 cash which was comprised of - $2,200.00 from the Mitchem East location (as identified in allegations 2 and 3), and $1,450.00 from the Mitcham Central location.
[8] There was some difference in wording between the allegations made then and now, but not of any great significance. Mr Soosai replied to the allegations in writing on 13 August 2019. At a meeting on 16 August 2019 with management in the presence of his union representative Mr Soosai discussed the allegations and his response of 13 August 2019. After the discussion Mr Soosai was advised that his employment would be terminated. A written letter of termination was provided to Mr Soosai on 19 August 2019. It was agreed that this meets the requirements of ss.387(b), (c), (d) of procedural fairness.
Summary of submissions
A summary of submissions is attached. 1 I have had regard to all submissions and evidence.
The Act – Unfair Dismissal
[9] Section 387 of the Act provides the criteria I must have regard to when considering whether dismissal of an employee is harsh, unjust, or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[10] I now turn to consider each of these criteria in turn below.
Consideration
[11] Essentially the only issue in dispute was that of a valid reason with s.387(a). 2 It was agreed that the applicant was notified of the reasons for termination on 12 August if not before (s.387(b)),3 that he was given an opportunity respond and did so (s.387(c)),4 that he had a support person (s.387(d)),5 that the matter related to alleged misconduct not unsatisfactory performance (s.387(e)),6 that the business was relatively large with human resource practitioners (ss.387(f) and (g)),7 and no discount on conduct is required on account of those factors, and I so find. The allegations were put to Mr Soosai on 12 August and he replied to the allegations in writing on 13 August 2019, although there is some difference in wording between the allegations put now and then. At a meeting on 16 August 2019 with management in the presence of his union representative Mr Soosai discussed the allegations and his response of 13 August 2019. After the discussion Mr Soosai was advised that his employment would be terminated. A written letter of termination was provided to Mr Soosai on 19 August 2019. Even if there is a procedural fairness issue it is of a minor nature, and I take that into account.
[12] There were a number of issues advanced by the applicant in relation to s.387(h). These included the adverse effect of the termination on the applicant, the fact that the matter was reported to the police, and that he had only worked for a 4 week period since termination with notice. 8 However, if there was some form of crime committed or financial irregularity, the employer was entitled and perhaps was obligated to report it to police. It was agreed broadly that the applicant had the obligation to record financial transactions made on behalf of a client, Patti Rodgers, in official money books, and to keep the card enabling him to make transactions on her behalf at ATMs and banks in a safe place. This is consistent with employer policies.9 The applicant quite properly agreed that he was aware of those policies, and knew what they involved. It is true that the termination has had an adverse effect on the applicant and I take this into account, even if it is self-inflicted.
[13] However, there was a more substantial contest over the matters alleged by the employer in paragraphs 23 to 34 of the respondent’s submissions. 10 The allegations against the applicant include the following:
Allegation 1
Mr Soosai was in breach of policy CS015 when he failed to record withdrawals of cash from Ms Rodgers’ account at the Mitcham East location in a Client Expense Recording Sheet (“CERS”). These withdrawals were on 8 February 2019 for $700.00, 2 March 2019 for $200.00, and 18 April 2019 for $450.00. The total amount missing from Ms Rodgers’ account amounted to $1,350.00. 11
Allegation 2
On 3 May 2019, Mr Soosai was in breach of policies CS015 and FA003 failed to record a withdrawal of $800.00 from the Mitcham East account conducted on 1 May 2019 in the HEF or the Communications Book. 12
Allegation 3
On 3 May 2019, Mr Soosai was in breach of policies CS015 and FA003 when he failed to record an additional $1,400.00 that he claimed was in a safe at the Mitcham East location in either the HEF or Communications Book and failed to record taking $1,450.00 from the Mitcham Central housekeeping fund in the HEF or Communications Book. 13
Allegation 4
On 3 May 2019, Mr Soosai was in breach of policy FA003 by having debit cards in his possession and making withdrawals after work hours. Mr Soosai left the Mitcham East location with all house bank account debit cards, client debit cards, and a total of $3,650.00 cash which was comprised of $2,200.00 from the Mitchem East location (as identified in allegations 2 and 3), and $1,450.00 from the Mitcham Central location. 14
[14] In particular the applicant alleged that the computer records which formed the basis of allegation 1 were not secure and could be altered, 15 which was apparently true, and that he was not required to record money amounts taken from the safe in relation to allegation 3.16 However, the applicant then relied on those records and said that he had recorded all amounts. As I discuss later these two positions seem contradictory, and the contradictions were never explained. If the applicant relies on those same records he cannot then say that the Commission cannot rely on them.
[15] In relation to allegation 2, this allegation was agreed by the applicant and respondent. Even if it had not been agreed I would have come to the conclusion that it was supported on the evidence.
[16] How do I resolve the evidentiary conflict? The employer submitted that there was a ‘bafflingly unexplained’ series of financial transactions involving the monies of the client Ms Rodgers. There is unfortunately some strength in this submission, and these raise serious questions about the applicant’s version of events. For example, the applicant gave evidence that he was unable to recall the reasons he made a number of withdrawals on six separate days on behalf of Patricia Rogers from the Melbourne Aquarium ATM at various hours in January-April 2019 including 3 in the morning and late at night. 17 The Melbourne Aquarium does not appear to be a logical place to withdraw in terms of travel to or from the applicant’s home in Sunshine, or to or from his workplace. His explanation that he was simply not able to recall this seemed odd because the location may have difficulties in terms of for example parking, and he was nevertheless able to recall that he either paid for parking or parked for free yet was unable to recall why he was there.18 He was also there on a number of occasions, without any explained basis, and made work related withdrawals from an ATM there. This vagueness about the details of work-related activity raised questions and concerned me, and in combination with other matters set out below led me to doubt his evidence overall.
[17] Some of the transactions were implausible if the reason was bona fide for the benefit of Ms Rogers. For example, on several occasions he withdrew several amounts hours apart from the same unlikely Melbourne Aquarium ATM location. There was no satisfactory explanation for this. One possible explanation was that he was gambling, but he rejected this assertion. 19 Given that I am left with no satisfactory explanation for this conduct, again I doubt his evidence. The events were some time ago, but the applicant had an obligation to properly account for his work-related actions and did not. The events were repeated and apparently deliberate, and therefore for some reason.
[18] The applicant’s evidence was that he carried around on his person the debit cards enabling these withdrawals to be made, and that he kept them in a safe place at work when he did not have to make transactions for the benefit of Ms Rogers. 20 However, the hours in which the withdrawals were made make it likely that he carried a debit card on his person for lengthy periods of time, when these cards should have been in a safe place, and therefore he did not keep the cards safe.
[19] The applicant gave evidence 21 that he deposited amounts of $1,400 in the bank and took them from the workplace safe because they were excessive yet the records show that amounts in excess of that were present in the safe in November 2018,22 December 2018 and January 2019,23 and February-March 2019.24 Overall this was an unconvincing explanation by him.
[20] Mr Soosai gave evidence that he was not required to record anywhere the removal of amounts of $1,400, and $1,450 from the Mitcham East and Central HEFs, 25 but this seems contrary to sensible practice as well as the letter of policy. However other witnesses such as Ms Politis were somewhat uncertain as to where the amounts should have been recorded in the official employer forms.26
[21] The NAB Mitcham East and Mitcham Central bank accounts record that $100 notes were deposited, according to the applicant taken from the safe, 27 yet the applicant was unable to account for them. Ms Weerasinghe was unable to recall any such amounts being in the cash tin.28 The ATMs in at least one case apparently on the evidence did not distribute $100 notes.29 This suggests that the applicant may have used his own cash to deposit those amounts. If this is correct, although the evidence is somewhat circumstantial, it would suggest a somewhat loose handling and intermingling of his and client funds, which concerns me.
[22] The applicant claimed that in fact the withdrawals recorded at paragraph 23 of the employer submissions, namely $700 on 8 February 2019, $200 on 2 March 2019, and $450 on 18 April 2019 were in fact recorded as required by policy. He said that the amounts might be recorded but not necessarily in the same amounts at the same time. 30 Thus he pointed to amounts of $100 on 1 March,31 $500 on 16 February,32 $100 on 1 March,33 $500 on 16 April,34 $250 on 15 April,35 $400 on 7 April,36 and $500 on 26 April.37 However, it is difficult to correlate these amounts with the withdrawals from the bank. Nor was I given an explanation as to why amounts would be recorded in this way not directly relating to the dates and amounts of withdrawals. Overall there are difficulties on the face of these explanations, and I am unable to accept them.
[23] There is also the issue of the CERS records for Ms Rodgers. The difficulty being that that the hard copies are missing and only a soft copy version is available. It is possible that the computer record could be altered, a point made by the applicant. However, I was overall in the proceedings given no reason why such a thing would have been done. It would be deliberate fraud, and possibly some form of offence. If there was some supportive evidence for such a suggestion it would give it greater credibility, yet there is minimal or no supportive evidence. The applicant also made the point that some of the witness evidence supporting the financial records 38 was somewhat vague in that the witnesses were not entirely certain what records they sighted when they made their witness statement. However, the applicant’s evidence was also vague. The challenge made to the CER records was not to the records completely, which were implicitly accepted, rather that it was a challenge to the specific entries under question.
[24] This challenge was to some extent I note inconsistent with the additional submission made by the applicant that in fact all entries required were made and could be found in the several small amounts I have already mentioned. If that is the case then the alternative challenge that the records were false or could be altered does not stand, or is not relevant. The applicant was somewhat vague but appeared to both challenge the veracity of the business and financial records provided by the respondent, and also to rely on them as being accurate. If the applicant can rely on those documents, I can too in my view. Relying on the records the inescapable conclusion is that the money amounts set out in the allegations were not recorded as required in the employer records, and that the allegations are correct.
[25] For the reasons given, the contradictions in the applicant’s submissions lead me to doubt his submissions. Even if I wanted to I am not sure what version of events that the applicant advances to accept, given their contradictions. Overall the provenance of the documents was not seriously challenged and they can also be accepted as a business record consistent with s.69 of the Evidence Act 1995 and be given weight in accordance with the rules for business records, although this was not explored in detail. Overall I am able to find some support in the CERS records because they are consistent with other observations I have made, and for the reasons set out above.
[26] Some of the witnesses were somewhat vague about exactly what account documents they saw in giving evidence, which is to some extent to be expected. However, given the difficulties and implausibility of the applicant’s evidence I prefer the evidence given by the four employer witnesses to that of the applicant. The employer submitted that there was a ‘bafflingly unexplained’ series of financial transactions involving the monies of the client Ms Rodgers, and there is unfortunately some strength in this submission. Because of this I am unfortunately unable to place any weight on the applicant’s evidence unless it is supported by other witnesses or plausible evidence. The applicant’s repeated claims that all amounts required to be recorded were in fact recorded is not consistent overall with the rest of the evidence, and unfortunately some of his evidence appeared to be mainly self-justificatory. I also had the opportunity to observe witnesses giving evidence.
[27] Ms Politis gave evidence about a number of matters, as well as providing a description of the system of records which applied. She said that it would be ‘highly unusual’ for an employee to hold client cards, and this appears to have happened for example between 3 and 9 May, 39 although the applicant may have been hindered in returning the cards by the termination. Mr Sankoh gave evidence about the system of accounts which I accept, and also evidence about the amounts in Ms Rodgers’ cash tin, including that cash withdrawals on certain days were not put in her tin.40 Ms Weerasinghe gave evidence about the system of records and other matters which I broadly accept, and which supports the employer allegations.41
[28] This means that overall I accept the allegations made by the employer at paragraphs 23, 33 and 34 of the employer written submissions.
[29] In any event, even if I am wrong about some or all of this, it was agreed, and is not in dispute, that the applicant ‘failed to record the Mitcham East bank withdrawal on Wednesday, 1 May 2019 for $800 or at all’. 42 This allegation was discussed and agreed a number of times.43 I accept the agreed position. I make that finding now given the gravity of the conduct and the other factors in s.387, and it is almost certainly accompanied by other valid reasons set out above. In particular it is not in dispute that the applicant kept a large amount of Ms Rodgers’ money and debit card between 3 May and 8 May, and did not make any attempt to communicate this to the employer before 8 May.44 This is most unsatisfactory given the importance of the keeping client moneys safe, and debit cards safe. In fact, it seems likely that he had this money on his person before that, given the lack of a satisfactory explanation for the moneys and the applicant’s conduct. This means that there are valid reasons, and the dismissal is not harsh, unjust or unreasonable, taking into account as I do all the factors in s.387.
Conclusion
[30] It is important that the monies of vulnerable clients are protected by a proper system of records, the keeping of monies in safe places, and the keeping of cards and pin numbers in safe places. This is core business for the employer. It is integral to an effective system of client service delivery. The employer’s policies in this matter provide for this. I am satisfied that the applicant did not properly record, keep cards safe, and keep monies safe on a number of occasions, and that these were valid reasons for termination of employment.
[31] I take into account all the factors in s.387, having regard to my findings above. I find that the termination of the applicant’s employment was not harsh, unjust or unreasonable. An order dismissing the application is contained in PR716152.
DEPUTY PRESIDENT
Appendix 1 - Summary of submissions
Submissions of Mr Soosai
1. Mr Soosai submitted the following with respect to each of the allegations: 45
Allegation 1
2. The amounts withdrawn totalling $1,350.00 were recorded in the CERS for Ms Rodgers on the day they were withdrawn. The CERS was located in a spreadsheet at the Mitcham East location.
3. Withdrawal receipts were marked with a handwritten number with this number being noted in the CERS. The receipts were then placed in the Client and Housekeeping Expenses Folder (“the Folder”).
4. The withdrawn cash was placed in Ms Rodgers’ petty cash tin. The petty cash tin is checked by 2 staff to ensure the amounts stored in the tin reconcile with the CERS. These staff then record in the Communication Book the amount of cash in the petty cash tin with both staff signing the Communication Book to confirm the balances recorded are correct. There are separate Communication Books for each month of the year.
5. At the beginning of March and April of 2019, Mr Soosai conducted a reconciliation of Ms Rodgers’ CERS for the months of February and March 2019. This involved removing the receipts from the Folder and attaching them to the CERS for Ms Rodgers.
6. These entries to the CERS were checked with the corresponding receipts which is done by matching the handwritten number on the receipt to the number identified in the CERS. This cross-checking is performed by staff on duty for the day. Once cross-checking is completed, the reconciled CERS is then signed off by Mr Soosai confirming that the amounts are true and correct and supported with receipts.
7. The signed CERS is then stapled with support receipts and placed in a white envelope and labelled with the corresponding month the reconciliation relates to. This envelope is stored alongside the Communication Book for the month in question.
8. Mr Soosai submitted that he had not reconciled the account for the month of April 2019 as he had been stood down at the time. Mr Soosai added that there should be three white envelopes, two of which would have been prepared by himself, which could be located with the Communication Book.
9. It was advanced by Mr Soosai that as he had recorded the three withdrawals in the CERS it was wrong of Able Australia to terminate his employment. Further, reliance on any other document that did not form part of the original printed and stapled documents should not be relied on as a basis to justify termination of employment as they are open documents and could be edited, deleted or manipulated after the period in question by any person.
Allegation 2
10. On 1 May 2019 a cash withdrawal was made totalling $800.00 from the Mitcham East bank account for the purpose of meeting weekly expenditures at the Mitcham East location.
11. On 2 May 2019, Mr Soosai has a rostered day off and did not report for duty.
12. On 3 May 2019 in the afternoon at the Mitcham East location, Mr Soosai accessed the safe and found that there was $1,400.00 in cash. Mr Soosai claimed that he had not noticed that the safe contained this amount of cash due to an accounting error made by another staff member. It was at this point that Mr Soosai realised that his withdrawal of $800.00 was not necessary. Mr Soosai decided that he would transfer the cash held in the safe and the amount he withdrew (at total of $2,200.00) to the Mitcham East bank account however due to heavy traffic, this task was unable to be completed as the bank would have closed by the time Mr Soosai arrived.
13. On 4 and 5 May 2019 Mr Soosai was off work. It was on 5 May that Mr Soosai was informed that he was to be stood down due to complaints made by a client at the Mitcham Central location.
14. On 6 May 2019, Mr Soosai claimed that he was confused and unsure as to what he should do with the $2,200.00 and felt he was unable to return to the Mitcham East location as he had been stood down.
15. On 7 May 2019, Mr Soosai received an email from Able Australia requesting the return of certain items such as office keys and banking cards.
16. On 8 May 2019, Mr Soosai deposited the $2,200.00 to the bank as assurance of its security would be certain.
17. On 9 May 2019, Mr Soosai returned office keys, banking cards and three banking receipts to the receptionist at Able Australia’s Victorian Office. The three banking receipts related to:
• Withdrawal of $800.00 on 1 May 2019;
• Deposit of $2,200.00 on 8 May 2019; and
• Deposit of $1,450.00 which represented cash belonging to the Mitcham Central location consisting of sums taken out of the safe and cash held in hand.
18. Mr Soosai claimed that:
• he did not make an entry to the HEF because the amount was going to be deposited back to the bank account on the same day;
• he had never received formal training on best practice methods relating to accounting. As such he was unaware that he was required to record the withdrawal and subsequent deposit as two transactions;
• he was of the belief that the receipt for the withdrawal of $800.00 was sufficient evidence;
• lateness of the deposit was due to him being stood down which he had intended to deposit on 6 May 2019; and
• his understanding of the policy (Policy CS015) requiring the recording of all movement of monies in the HEF “as it occurs” meant that it did not require instantaneous recording. Rather it should be read to mean that recording should occur at the next reasonable opportunity.
Allegation 3
19. Mr Soosai submitted that allegation 3 erroneously supposed that the $1,400.00 was a single withdrawal where instead it was accumulated via unspent funds available and held within the safe at the end of April 2019. However, and as noted earlier, there had been accounting errors made by another staff member in respect of the following opening balance amounts:
• The opening balance amount of 1 April 2019 did not correspond to the closing balance of 31 March 2019; and
• The opening balance of 1 May 2019 did not correspond to the closing balance of 30 April 2019.
20. Due to these entries, there appeared to be a discrepancy of $1,400.00 in the May 2019 HEF. Mr Soosai claimed that he did not prepare the opening balance for 1 April 2019 as he was on leave at the time. Mr Soosai also did not prepare the opening balance for 1 May 2019 as he was at an out of office meeting. Mr Soosai submitted that he did not know who prepared the opening balances in question.
21. With respect to allegation 3, Mr Soosai claimed that:
• he had not received any formal training in best practice accounting methods;
• he had no reason to believe that there had been an accounting error as there are procedures in place for the purposes of auditing accounting records and no issue had been raised from the Finance Department or the Finance Administrator. Further, the large amount of cash held in the safe was only discovered on 3 May 2019 and Mr Soosai was unable to rectify the issue as he had been stood down as early as 5 May 2019;
• there is a procedure relating to reconciling the monthly HEF and Mr Soosai reconciled the accounts following the established procedure. However, Mr Soosai did not reconcile the April and May 2019 accounts as he had been stood down and was not aware of who had completed the reconciliations;
• the signed HEF and Communication Books for March, and possible April and May 2019 would demonstrate that there were accounting errors in the opening balances of 1 April 2019 and 1 May 2019 which would show the discrepancy of $1,400.00;
• at the interview on 8 July, Mr Soosai requested copies of the 3 signed HEF and 3 Communication Books but this request was denied. These documents are in the possession and control of Able Australia and in failing to provide Mr Soosai with a copy of each of them he was not afforded with an opportunity to answer the allegations satisfactorily; and
• the HEF are open documents and can be accessed by anyone. As such, the unsecure nature of the documents leaves entries open to editing and deletion by anyone. The only true copy that should be relied on is the printed, cross-checked and signed copy.
Allegation 4
22. Mr Soosai submitted that his intent with making a cash withdrawal of $800.00 from the Mitcham East bank account was to meet weekly expenditure needs of the Mitcham East location. As such, he needed to be in possession of the debit card to make the said withdrawal. The Mitcham East debit card was secured in a card holder with other debit cards of clients of Mitcham Central. Mr Soosai claimed that he was always in possession of the card holder and all cards were kept together for convenience purposes.
23. No transactions were made using any client bank account cards on 1 May 2019 up until they were returned to Able Australia’s Victorian Office front reception on 8 May 2019. The allegation relating to being in possession of $3,650.00 is adequately addressed and explained in allegation 2.
Submissions of Able Australia
24. Able Australia made the following submissions with respect to their decision to dismiss Mr Soosai: 46
25. The four allegations relied on were viewed as constituting a breach of the following Able Australia policies:
• Policy CS015 – Able Living: All movement of monies are to be recorded in the CERS as it occurs and supported by a numbered receipt; 47
• Policy CS015 – Handling of Housekeeping Finances: All movement of monies are to be recorded in the HEF as it occurs; 48
• Policy FA003 – Procedure: All movement of monies are to be recorded in the HEF as and when it occurs; 49 and
• Policy FA003 – Security of Card and Pin Number: All NAB Flexicard and housekeeping cash must be locked at the service location at all times. 50
26. Able Australia has established procedures where purchase and movement of client monies occurs. These must be recorded in the CERS. Ms Rodgers’ is a client of the Mitcham East location and any of her money held in cash was kept in a money tin. The Communication Book records various information of the day, including what amount of cash is held in the cash tin for a client. Money held in client tins is counted twice daily and recorded in the Communication Book.
27. When Mr Soosai was being investigated for financial misconduct, a search was undertaken to uncover the Communication Books however many were missing from the Mitcham East location and have not been found to date.
28. Housekeeping funds are used for the purchase of groceries and other household items. Like client monies, any movement or purchases made from housekeeping funds must be recorded in the HEF. Housekeeping wallets typically held approximately $500.00.
29. Mr Soosai allegedly held the difference between the balance and the amounts held in the housekeeping wallets and tins in a safe at the Mitcham East location. Mr Soosai told staff that money held in the safe would be recorded from time to time in the Communication Book or he would direct another staff member to make the recording. The safe was closely controlled by Mr Soosai.
30. With respect to Allegation 1 there were three transactions which were not recorded:
• $700.00 withdrawn on 8 February 2019;
• $200.00 withdrawn on 2 March 2019; and
• $450.00 withdrawn on 18 April 2019.
31. It is noted that there were recordings of additional withdrawals made on 2 March 2019 and 18 April 2019 in the CERS for Mr Rodgers. What is in dispute is whether the amounts withdrawn were recorded in the CER and whether the amounts were ever placed in Ms Rodgers’ money tin.
32. With respect to Mr Soosai’s contention that the only CER that should be relied on is the signed version, Able Australia does not have that document. It does however have a soft copy of the document. The soft copy has no record of the withdrawals made on 8 February 2019 of $700.00, 2 March 2019 of $200.00 and 18 April 2019 of $450.00.
33. Mr Soosai’s explanation that the withdrawn cash was placed in Ms Rodgers’ money tin is at odds with amounts that would usually be placed in a money tin for a client and such a large amount of cash would have been noticed by other disability support workers charged with counting cash held in client money tins. 51
34. With respect to the allegations relating to housekeeping funds and debit cards, Able Australia submit that Mr Soosai’s explanations are implausible with a possible explanation being that the $3,650.00 in the safe was money previously held by Mr Soosai for his own use.
35. On the basis of Mr Soosai’s version of events, Able Australia submitted that it was apparent that Mr Soosai:
• failed to record the withdrawal of $800.00 from the Mitcham East account;
• failed to record taking an amount of $1,400.00 from Mitcham East HEF;
• failed to record taking an amount of $1,450.00 from the Mitcham Central HEF; and
• failed to keep debit cards for Mitcham Central and Mitcham East secure at the respective premises.
Appearances:
E Soosai, Applicant
A Bell of Counsel for the Respondent
J Smith, instructing Solicitor for the Respondent
Hearing details:
2019.
Melbourne.
16 November.
Printed by authority of the Commonwealth Government Printer
<PR716151>
1 Appendix 1 – Summary of Submissions.
2 Audio Recording of Mention (5 December 2019) at 10:49 am.
3 Ibid at 10:53 am.
4 Ibid at 10:54 am.
5 Ibid.
6 Ibid.
7 Ibid at 10:55 am.
8 Ibid at 10:57 am.
9 Exhibit A6 – Court Book at 131 and 132.
10 Exhibit A1 – Employer Written Submissions.
11 Respondent’s Outline of Argument at [8(a)], [23].
12 Ibid at [8(b) and (c)], [33(a)].
13 Ibid at [8(b) and (c)], [33(b) and (c)].
14 Ibid at [8(d)], [34].
15 Exhibit S1 – Witness Statement of Edwin Soosai and attached documents.
16 Audio Recording of Hearing (16 December 2019) at 12:59 pm.
17 Exhibit A6 – Court Book at 64 (withdrawals on 4 January 2019, 16 January 2019, 21 January 2019), 66 (withdrawals on 4 February 2019, 15 February 2019, 20 February 2019), and 70 (withdrawals on 15 April 2019 and 16 April 2019).
18 Audio Recording of Hearing (16 December 2019) at 1:40 pm.
19 Ibid at 1:30 pm.
20 Ibid at 1:51 pm.
21 Ibid at 1:58 pm.
22 Exhibit A6 – Court Book at 81.
23 Ibid at 82 – 86.
24 Ibid at 87 – 90.
25 Audio Recording of Hearing (16 December 2019) at 12:59 pm.
26 Ibid at 12:54 pm.
27 Exhibit A6 – Court Book at 74 – 75.
28 Exhibit A3 – Witness Statement of Nirosha Weerasinghe at [40].
29 Audio Recording of Hearing (16 December 2019) at 1:53 pm.
30 Ibid at 10:29 am.
31 Exhibit A6 – Court Book at 89.
32 Ibid.
33 Ibid at 90.
34 Ibid.
35 Ibid.
36 Ibid.
37 Ibid at 91.
38 For example, Exhibit A3 – Witness Statement of Nirosha Weerasinghe at [18] – [28], and Exhibit A4 – Witness Statement of Mustapha Sankoh at [16].
39 Exhibit A2 – Witness Statement of Angela Politis at [8].
40 Exhibit A4 – Witness Statement of Mustapha Sankoh at [17].
41 Exhibit A3 – Witness Statement of Nirosha Weerasinghe.
42 Exhibit A1 - Employer Written Submissions at [33(a)].
43 Audio Recording of Mention (5 December 2019) at 10:51 am, and Recording of Hearing (16 December 2019) at 11:07 am.
44 Audio Recording of Hearing (16 December 2019) at 2:10 pm.
45 Exhibit S1 – Witness Statement of Mr Edwin Soosai with attached documents.
46 Exhibit A1 – Employer Written Submissions.
47 Exhibit A6 – Court Book at 123.
48 Ibid at 127.
49 Ibid at 131.
50 Ibid at 132.
51 Exhibit A3 - Witness Statement of Ms Nirosha Weerasinghe at [35] – [38], and Exhibit A4 - Witness Statement of Mr Mustapha Sankoh at [16] – [17].
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