Hanna Wittner v Glad Security Pty. Ltd
[2025] FWC 676
•6 MARCH 2025
| [2025] FWC 676 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hanna Wittner
v
Glad Security Pty. Ltd
(U2024/1682)
| COMMISSIONER MATHESON | SYDNEY, 6 MARCH 2025 |
Application for an unfair dismissal remedy
Hanna Wittner (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Glad Security Pty. Ltd (Respondent). The Applicant seeks reinstatement or, in the alternative, compensation.[1]
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(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.
Background
The uncontested factual background to the matter is as follows:
The Respondent is a part of the Glad Group[2] and provides cleaning, security, guest and maintenance services to the clients under contractual arrangements, including the Queensland Investment Corporation (Client) which is a Queensland Government owned entity and the owner of Eastland Shopping Centre in Victoria (Shopping Centre).[3]
The Respondent has a contract with the Client (Services Contract) and employs employees to carry out services at the Shopping Centre for the Client.
The Applicant commenced working for the Respondent in late March 2023 in a guest services role (Role) at the Shopping Centre.[4]
The Role involved the Applicant working at the information desk at the Shopping Centre by assisting customers, managing enquiries, supporting marketing events, selling gift cards and maintaining a welcoming environment.[5]
On 6 January 2024 a gift card for a facial at Results Laser Clinic (Voucher) was delivered at the information desk where the Applicant was working and after a discussion with her coworkers, the Applicant and her coworkers agreed that the Applicant would take the gift card home.
On 15 January 2024 the Applicant was sent a letter inviting her to attend a Microsoft Teams meeting to discuss an allegation that she took home gift vouchers from the Shopping Centre.[6]
On 24 January 2024 the Applicant was sent another letter inviting her to attend another Microsoft Teams meeting to discuss the outcome of the investigation into the allegation.[7]
On 25 January 2024 the Applicant was sent another letter inviting her to attend a formal outcome meeting on 29 January 2024 and this letter stated that the Client had asked for the Applicant to be permanently removed from the Shopping Centre.
A letter given to the Application on 29 January 2024 (Termination Letter) indicated, among other things, that:
obased on the findings of its investigation the Respondent had concluded that allegations that she stole from the Shopping Centre had not been substantiated and as the Applicant was under the impression that the Voucher she had taken home was a sample or gift;
owhen a sample or gift card was given to concierge it was the expectation that the manager would be notified;
othe Applicant had been spoken to before regarding taking something from home from the information desk and as such it had decided to give her a first and final warning;
othe Applicant had been informed that the Client had exercised its right to request that the Applicant be permanently removed from the Shopping Centre;
othe Respondent had investigated available positions at alternative sites and there were no available positions in guest services and concierge;
othe Applicant had indicated that she did not wish for the Respondent to search for any positions as a cleaner;
othe Applicant’s employment was terminated effective 29 January 2024 due to a lack of suitable alternative sites.[8]
The Applicant was paid one week in lieu of notice.
The conference
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After considering the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s.399 of the FW Act).
Permission to appear
The Applicant had initially sought to be represented before the Commission by a paid agent, Employee Claims Pty Ltd t/a Employee Dismissals.
Relevantly, section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act.[9] The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[10]
The question as to whether permission to be represented should be granted was referred to a Full Bench of the Commission which handed down its decision on 23 August 2024 granting permission for the Applicant to be represented by a paid agent pursuant to s.596(2)(a) of the FW Act.[11] The matter was subsequently allocated to my Chambers. Notwithstanding that such permission was granted, the Applicant was self-represented during the determinative conference.
Accordingly, at the conference on 11 December 2024, both parties were self-represented.
Witnesses
The Applicant gave evidence on her own behalf.
The following witnesses gave evidence on behalf of the Respondent:
· Ann Shanahan, Manager People & Insurance for the Respondent;
· Bradley Roe, HR Business Partner for the Respondent;
· Fadi Nissan, Integrated Services Manager – Eastland SC for the Respondent;
· Jennifer Lam, Service Delivery Manager – Eastland SC for the Respondent;
· Michael Joyner, National Integrated Services Manager for the Respondent.
Submissions
The Applicant filed submissions in the Commission on 11 November 2024. The Respondent filed submissions in the Commission on 2 December 2024.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from their employment.
Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
There was no dispute, and I find that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent.
I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
It is not disputed, and I find that the Applicant was dismissed from her employment on 29 January 2024 and made the application on 15 February 2024. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
I have set out above when a person is protected from unfair dismissal.
Minimum employment period
It was not in dispute, and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
It was not in dispute, and I find that the Applicant was an employee, who commenced her employment with the Respondent on 27 March 2023 and was dismissed on 29 January 2024, a period in excess of 6 months.
I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Modern award coverage
It was not in dispute, and I find that, at the time of dismissal, the Applicant was covered by an award, being the General Retail Industry Award 2020.
I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).
I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
It was not in dispute, and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[12]
I set out my consideration of each below.
Section 387(a) - Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[13] and should not be “capricious, fanciful, spiteful or prejudiced.”[14] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[15]
“A reason will be ‘related to the capacity’ of the Applicant where the reason is associated or connected with the ability of the employee to do [their] job.”[16]
Submissions
The Respondent submitted that the Applicant’s employment was terminated due to the lack of suitable alternative sites following:
a request from the Client to have the Applicant removed from the Shopping Centre where it had placed her to work; and
the Applicant’s subsequent declinature to continue employment with the Respondent’s cleaning division where it says the only opportunities to redeploy the Applicant existed.[17]
In particular, the Respondent submitted: [18]
It provides services to its clients under contractual arrangements and it has no or very limited opportunity to have a say in the Client’s requests to remove employees from their sites.
Clause 2.2(iv) of its Services Contract with the Client required it to ‘comply with a direction from the Principal to remove any personnel engaged in providing the Services who, in the Principal’s reasonable opinion, is objectionable (including without limitation, is guilty of misconduct, or is incompetent or negligent)’ and stated that it ‘must not use such person again in connection with the Services without the Principal’s prior written approval’.
The contracts of employment between the Respondent and its employees clearly stipulate the nature of these contractual arrangements with clients. In this regard, the Respondent filed a copy of the Applicant’s employment contract (Employment Contract) which stated:
‘2.7 You acknowledge and understand that:
(i)The Glad Group provides services to its clients under fixed term contracts;
(ii)it is a normal feature of the Glad Group’s business, and the industry, that it wins and loses contracts to provide services;
(iii) you are being employed for the purposes of Glad Entity servicing a contract with its client for the site detailed at Item 9 of Schedule 1 and which is for a fixed term;
(iv) your ongoing employment with the Company is dependent upon the continuation of the Glad Entity’s contract with its client;
(v) pursuant to clauses 2.7(iii) and (iv), you have no expectation of continuing employment with the Company if the Glad Entity loses its contracts with its client;
(vi) if the Glad Entity loses its contract with its client your employment will be terminated, unless you are redeployed as detailed in paragraph 2.8 below;
(vii) in the circumstances, where you employment is terminated because of the matters in this clause you will not be entitled to any redundancy pay, pursuant to section 119 of the Fair Work Act 2009(Cth)(“Act), as the cessation of your employment will be due to the ordinary and customary turnover of labour resulting from the Glad Entity losing its contract with its client; and
(viii) for the avoidance of doubt, in the circumstances detailed in this clause 2.7, you will be paid all other entitlements due and payable as calculated at the time of termination.
2.8 Notwithstanding clause 2.7 if the Glad Entity has lost its contract with its client, the Company will endeavour to find you future employment with the incoming contractor and may offer you employment elsewhere within its business.
2.9 You also acknowledge and agree that:
(i)it is an inherent requirement of your position that the client of the Glad Group for whom your services are provided does not request you to be removed from your position;
(ii)if a client requests that you are removed from your position this means that you cannot continue in your position. If so, and subject to your performance and conduct, the Company may discuss with you whether there are suitable alternative positions available at the site or at another site. If there are such suitable alternative positions available, to effect this change, you must complete a transfer of site form or a change of on-site classification form, whichever is applicable;
(iii)if (i) above applies and there are no other suitable alternative positions available at the site or at another site, your employment will be terminated; and
(iv)in the circumstances, where your employment is terminated because of the matters in this clause you will not be entitled to any redundancy pay, pursuant to section 119 of the Act, as the cessation of your employment will be due to the failure by you to satisfy an inherent requirement of your position’.
The Client requested to have the Applicant removed from its site.
Mr Roe, the Respondent’s Human Resources Business Partner, undertook a review of the Respondent’s operations, including its associated companies, outside of the Client’s sites to identify other suitable alternative positions in Guest Services and Concierge.
There were no other available positions in Guest Services or Concierge because Guest Services are only undertaken at the Client’s site, Eastland Shopping Centre, and concierge services undertaken by the Respondent’s associated company, Auxus Pty Ltd, have a very small presence in Victoria with only two sites site where one employee was placed at each site.
The Applicant did not have the skills, qualifications or required licences to operate as a security officer or electrician in the Respondent’s security or maintenance divisions.
The Applicant was offered the opportunity to continue employment with the Respondent in the cleaning division but declined this offer.
The Applicant’s employment was terminated as a result.
The Applicant’s submitted that she had been unfairly dismissed because, by way of summary:
she had accepted a voucher believing it was a free sample, with no intent to steal it;
she was questioned by three senior managers about this without prior notice or time to prepare and as not given a fair chance to explain or resolve the situation;
the Respondent escalated the situation prematurely to human resources;
this created a false impression that led to the Client requesting the Applicant’s removal from site; and
while human resources cleared her of wrongdoing, she was still terminated.[19]
Summary of evidence
It is apparent from emails filed by the Respondent that:
On 19 December 2023 the Marking Coordinator of Results Laser Clinic reached out to the Client about a marketing campaign called the ‘Golden Giveaway’.
On 19 December 2023 the Client responded to the email from Results Laser Clinic indicating that the campaign would run between 15 January 2024 and 28 January 2024 and it would like to have prizes delivered for the campaign as soon as possible.
On 22 December 2023 the Marking Coordinator of Results Laser Clinic responded stating that Results Laser Clinic would like to provide a voucher for a facial valued at $130 if it could obtain the winner’s details.
On 27 December 203 the Client responded thanking the Marking Coordinator of Results Laser Clinic, indicating that it was more than happy to provide the winner’s details and requesting that the prize be dropped off to centre management.
On 5 January 2024 the Marking Coordinator of Results Laser Clinic wrote to the Client indicating that a team member would drop the Voucher off the following morning.
The Applicant gave evidence that on 6 January 2024:
she was working at the information desk at the Shopping Centre alongside her colleagues when a staff member from Results Laser Clinic approached the information desk and handed her colleague a white envelope wrapped in a green bow, stating “it’s for anyone to use”;
her colleague showed her the envelope which contained the Voucher, was not addressed to anyone and did not display a monetary value;
when her colleagues expressed no interest in keeping the card, they offered it to the Applicant, and she accepted it and took it home;
her manager Ms Lam was not working that weekend, and it did not occur to her to inform Ms Lam about the gift card.[20]
Ms Lam gave evidence that:
staff have occasionally received discount coupons or small gifts, such as chocolates or product samples, from retailers;
these items were typically shared among the team or distributed with transparency;
at no time had the team received a unique, one-of-a-kind item, such as a gift voucher, intended for only one individual;
as a ‘general process’, any coupons or items received by the team were reported to either Ms Lam, another manager of the Respondent or the Client’s management, along with information on the retailer providing the items.[21]
Ms Lam said that on 6 January 2024 the Respondent’s Duty Manager, Suzanne Callahan was on site and Guest Services staff were required to check in with Ms Callahan and provide a handover at the end of each shift.[22]
Emails filed by the Respondent indicate that on 8 January 2024:
The Client emailed Results Laser Clinic asking whether the Voucher had been dropped off.
Results Laser Clinic responded indicating it had been dropped off on 6 January 2024.
The Client responded asking where the Voucher was dropped off and Results Laser Clinic indicated that the staff member who dropped it off had handed it to someone at the information desk.
Ms Lam’s evidence was that: [23]
On 9 January 2024 the Client informed her that a gift voucher, intended for an upcoming marketing activation, had been dropped off to the information desk and was missing.
Ms Lam then reviewed the CCTV footage which showed Stephanie Yiu, a member of the Guest Services team, receiving the voucher and placing it on the desk.
Ms Lam contacted all staff who were working on the day of the incident to enquire if anyone had taken the voucher and Ms Yiu informed her that the Applicant had taken the voucher, believing it was free to take.
The Applicant’s evidence was that on 9 January 2024:
she received a message in a work-related WhatsApp group chat from her coworker who was on shift that day and who was inquiring about a voucher from Australian Skin Clinics given on 6 January 2024;
she responded indicating that she had taken a gift card home on that date from Results Laser Clinic;
the colleague responded stating “No it’s all sorted, thanks Hanna”.[24]
However, the matter was clearly not “all sorted” and on 11 January 2024 the Client emailed the Marketing Manager at Results Laser Clinic asking her to make enquiries with the staff member who dropped it off as she had asked staff on level 2 who did not remember receiving the voucher and could not locate it.
The Applicant’s evidence was that on 11 January 2024 prior to her shift and while she was at the gym at the Shopping Centre the following text message exchange occurred between her and Ms Lam:
Ms Lam:“Hi Hanna, can you please bring the laser vouchers please? They are for marketing purposes. Thank you.
Applicant:“hi jen i only have one and it’s from a different clinic”
Ms Lam:“Can you please send a photo”
“Did they have money on the vouchers?”
Applicant:“yep”
“no just a micro facial”
Ms Lam:“From which laser?”
Applicant: “results laser clinic”
Ms Lam:“Take a photo please and return the voucher back”
“It’s for marketing activation”
Applicant:“sorry I cant it was given as a gift from the girl from the clinic she said it was for us to use and take home. I think you might be thinking about a different voucher”
Ms Lam:“Take a photo please”
“Can you please call asap”
Applicant:“Hi Jen i start at 5 and cannot call right now, I can call when I arrive if you are there x”
Ms Lam:“Thanks Hanna”
The Applicant’s evidence was that:
· given she was already at the Shopping Centre at the time of the text message exchange she did not have the chance to go home and retrieve the Voucher;
· she had thought the Voucher was a general use sample and that her recent conversation with her colleague had been in relation to a different gift voucher;
· she decided to visit Results Laser Clinic before her shift to confirm the Voucher’s purpose, the staff reassured her that the card was a “free sample for anyone to use” and was not part of a marketing campaign and stated that they were unaware of any current promotions regarding the Shopping Centre.
The Applicant’s evidence was that: [25]
· Upon arriving for her shift on 11 January 2024 Ms Lam approached the Applicant asking if she had the Voucher.
· The Applicant explained she had not had the opportunity to retrieve the Voucher and reiterated her understanding that it was a sample.
· Ms Lam then directed the Applicant to her office.
· The Applicant asked Ms Lam if she could provide documentation or evidence that the card was for a marketing purpose and Ms Lam stated she had no written proof but could get confirmation from a friend in marketing.
· Ms Lam’s manager, Mr Nissan, joined the conversation and referenced an unrelated past incident where the Applicant mistakenly took ‘unloaded’ gift cards home (being gift cards without an activated value).
· Mr Nissan’s manager, Mr Joyner, then joined the conversation stating that he felt uncomfortable with the Applicant being at the desk and questioning the Applicant’s trustworthiness in handling valuable items.
· The Applicant clarified that she had no interest in keeping or using the Voucher and suggested that it be cancelled in case she could not locate it at home.
· Mr Nissan instructed the Applicant to leave work immediately and not return until she had retrieved the voucher.
· The Applicant raised that she had a contractual right to work and preferred not to go home and Mr Nissan informed her she would be paid for missed shifts.
· Mr Joyner stated that an investigation by human resources would be commenced and asked the Applicant for the clinic’s details so he could block the Voucher.
· Mr Nissan requested that Ms Lam implement mandatory training as soon as possible for all staff concerning taking property home without permission.
Ms Lam’s evidence was that the Applicant refused to return the voucher or provide any details, insisting it was her gift.[26]
The Applicant’s evidence was that she was unable to locate the Voucher and on 12 January 2024 the following text message exchanged occurred between the Applicant and Ms Lam:[27]
Applicant: ‘morning Jen
just wondering if Michael was able to get the card cancelled and if I’m able to come to my shift tonight
thanks’
Ms Lam:‘She just exited before and I’m going to call her to say she has been stood down pending investigation and HR will call her’
It is apparent that Ms Lam’s response was not intended for the Applicant and the Applicant subsequently asked that Ms Lam communicate with her via email or text.
Ms Shanahan’s evidence was that on 12 January 2024 Ms Lam called her and advised that there was an issue with a tenant’s gift voucher that the Applicant had taken off site and that the Applicant had been asked to return the voucher but did not do so.[28] The matter was referred to Ms Roe for further assistance and investigation.
On 12 January 2024 Mr Lam emailed the Applicant indicating that the Respondent required a statement from the Applicant regarding the Voucher by 5pm on 12 January 2024.
On 15 January 2024 the Applicant emailed her account of events concerning the Voucher to Ms Lam and Mr Nissan indicating that she had believed the Voucher to be a free sample and took it home after a discussion with her colleagues.[29]
On 16 January 2024 the Applicant met with the Respondent’s Human Resources representative, Mr Roe, over a zoom call and she again provided her account of events concerning the Voucher.[30]
On 17 January 2024 Ms Shanahan recommended that to Ms Lam that the Guest Services team be provided with training around the expectation of what to do when offered gifts.[31]
On 17 January 2024 Ms Lam emailed Mr Roe a copy of a statement from the Applicant’s colleague Ms Liu, who had taken receipt of the gift card upon its delivery to the information desk on 6 January 2024.
On 17 January 2024 Ms Lam advised Ms Shanahan that the Client had requested that the Applicant be removed from the Shopping Centre.[32] It is apparent that discussions were held between Ms Lam and Emma Heinceslater, the Client’s Marketing Manager at the Shopping Centre because on 18 January 2024 Ms Heincelaster emailed Ms Lam stating the following:
‘Thank you for your assistance in resolving the issue of the missing gift voucher, as always we really appreciate your support.
I would like to express my disappointment regarding Hannah’ failure to return the voucher, despite being informed it was for a designated marketing activation. While I understand her initial perception that the voucher was a gift, her refusal to return it resulted in an embarrassing situation with the team required to return to the retailer, informing them of the need to cancel the original voucher and issue a new one. Furthermore, the considerable amount of time expended in searching for the missing voucher and subsequently coordinating with the retailers national team to explain the situation and detail the resolution could have been entirely averted had she returned the voucher promptly.
Hannah has exhibited a notable disregard for team’s time and demonstrated a lack of comprehension regarding the potential ramifications of her actions could have had. Our organisation annually receives substantial contributions in the form of products and prizes, valued at thousands of dollars, for marketing activations. These donations play a crucial role in fortifying our campaigns and ensuring their success. The ramifications of her actions posed a significant threat to our relationship with the retailer, with the potential consequence of diminished future donations. Without a demonstrated acknowledgement and understanding of the adverse impact of her behaviour, I am hesitant to have her involved in future marketing activities and working at the desk where she will have access to these.’
On 19 January 2024 Ms Shanahan emailed Ms Lam regarding the email from Ms Heincelaster seeking clarification as to whether the Client did not want the Applicant to return to the Shopping Centre and querying Ms Heincelaster’s authority to make such requests.
On 19 January 2024 the General Manager of the Shopping Centre emailed Ms Lam and Mr Nissan indicating that he supported the team’s request to no longer have the Applicant working at the Shopping Centre. In this regard clauses 2.2(c)(iv) and (v) of the Respondent’s contract with the Client (Services Contract) expressly requires the Respondent to:
‘(iv) comply with a direction from the [Client] to remove any personnel engaged in providing the Services who, in the [Clent’s] reasonable opinion, is objectionable (including without limitation, is guilty of misconduct, or is incompetent or negligent); and
(v) unless otherwise expressly agreed by the [Client] in writing, obtain the [Client’s] prior written approval prior to engaging personnel to carry out the Nominated Key Personnel Services, who will become Key Personnel for the purposes of this Contract upon approval by the Principal.’
On 29 January 2024 the Applicant had a Zoom meeting with Mr Roe to discuss the investigation outcome and during that meeting:
Mr Roe informed the Applicant that the investigation found that she had no intention to steal;
Mr Roe informed the Applicant that due to the Client’s request for her removal from the Shopping Centre, the only redeployment option available was to a cleaning position;
the Applicant expressed that she was not comfortable with a cleaning role;
Mr Roe then stated that the only other option would be termination.[33]
Consideration and findings
It is apparent that from time-to-time samples were delivered to the information desk and taken home by the Respondent’s staff. While Ms Lam’s evidence was that when a sample or gift card was given to concierge it was the expectation that the manager would be notified, I am not persuaded that such an expectation was clearly communicated to staff, including the Applicant. It is also apparent that the Applicant was unaware that the Client and Results Laser Clinic had been communicating about the provision of the Voucher for the purposes of a marketing campaign. When the Results Laser Clinic representative dropped the Voucher off to Ms Liu at the information desk, it is apparent that the representative did not communicate that it was for the purpose of a marketing campaign and could not therefore be used by the information centre staff.
In these circumstances I accept that the Applicant accepted the gift voucher with no intent to steal it and this does not appear to be in contention. I accept that the Applicant did not believe she was doing anything wrong in taking the gift card home on 6 January 2024.
However, it is apparent that the Client had made certain representations to its tenant, Results Laser Clinic, about the Voucher and its use in the marketing campaign. The Client clearly became concerned when the Voucher could not be found in circumstances where Results Laser Clinic had told the Client the Voucher had been provided on 6 January 2023. After making enquiries with Results Laser Clinic the Client then approached Ms Lam.
On 11 January 2023 Ms Lam clearly communicated to the Applicant via text message that the Voucher was for “a marketing activation” and requested that she “Take a photo please and return the voucher back”. The Applicant responded:
“sorry I cant it was given as a gift from the girl from the clinic she said it was for us to use and take home I think you might be thinking about a different voucher”
While the Applicant’s evidence was that she was at the gym and therefore was not able to look for the Voucher, the text message presents in a way that suggest the Applicant was not returning the Voucher because it was a gift. Rather than calling Ms Lam as Ms Lam had requested in her text message stating “Can you please call asap”, the Applicant decided to visit Results Laser Clinic to seek clarification about the Voucher’s purpose.
Ms Lam sought to discuss the matter with the Applicant when she commenced her shift. However, it is apparent that during the discussion between Ms Lam and the Applicant on 11 January 2024 the Applicant became defensive about taking the Voucher home, her own evidence being that she reiterated her understanding that it was a sample and sought documentation or evidence that the Voucher was for a marketing purpose. It is apparent that the Applicant believed she was being accused of stealing and did not believe the explanation of her manager, Ms Lam, that the Voucher was for a marketing purpose. It seems likely that the Mr Nissan and Mr Joyner joined the conversation when discussions between Ms Lam and the Applicant became tense but that this resulted in the Applicant becoming further defensive in that conversation. While the Applicant’s evidence was that she clarified that she had no interest in keeping or using the Voucher and suggested that it be cancelled in case she could not locate it at home, I consider that the Applicant’s own conduct had the effect of escalating the situation. It was clear from Ms Lam’s text messages to the Applicant on 11 January 2024 that wanted the Voucher to be returned because it was for a marketing activation and rather than becoming defensive with Ms Lam about this and asking her for evidence that the Voucher was for marketing purposes, the Applicant should have simply committed to looking for the Voucher that she had taken with a view to returning it promptly. Had the Applicant done so it seems unlikely that the matter would have escalated in the way that it did.
In the interim, the Client was still looking for the Voucher. Unable to retrieve the Voucher from the Applicant, it is apparent that Ms Lam needed to have a conversation about this with the Client and that the Voucher needed to be cancelled. The Applicant was ultimately unable to find the Voucher and it was never returned. It is apparent from Ms Heincelaster’s email of 18 January 2024 to Ms Lam that the Client knew the Applicant had taken the Voucher home and had not returned it when requested to do so by Ms Lam despite being informed it was for marketing purposes. This gave the Client a reasonable basis for exercising its rights under clause 2.2 of the Services Contract and by 19 January 2024 it was clear that the Client no longer wanted the Applicant to work on site.
I accept that the Respondent has a very small concierge department in Melbourne and that the only other opportunities that the Respondent was able to identify for the Applicant were in the cleaning division. I accept that the Applicant did not want to accept a role in the cleaning division, and this therefore left the Respondent in a position where it was unable to have the Applicant work at the Shopping Centre and did not have any other suitable roles to which she could be deployed. The Client requested that the Applicant not attend the Shopping Centre anymore and as a result the Applicant was no longer able to perform the inherent requirements of her role. This was the reason for the Applicant’s dismissal. In these circumstances I find that there was a valid reason for the dismissal relating to the Applicant’s capacity.
Section 387(b) - Was the Applicant notified of the valid reason?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[34] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[35] and in explicit[36] and plain and clear terms.[37]
The Respondent submitted that the Applicant was advised of the termination of her employment in a Microsoft Teams meeting with Mr Roe on 29 January 2024 and that:
this meeting was primarily to provide an outcome of the investigation, which resulted in a first and final warning, and to discuss and put forward an offer for ongoing employment in the cleaning division;
as the Applicant rejected the offer to continue employment, the Applicant’s employment was terminated at that meeting.[38]
In this regard Mr Roe’s evidence was that the Applicant rejected an opportunity to continue her employment in the cleaning division and because she rejected this offer, he told the Applicant she would be terminated due to lack of sites.[39]
Upon the Applicant rejecting the offer to move to the cleaning division, it is apparent that Mr Roe then communicated to the Applicant that her employment was terminated. In these circumstances, the Applicant was not notified of the reason for her dismissal before the decision was made to terminate her employment. As such, I find that the Applicant was not notified of the valid reason as contemplated by s.387(b) of the FW Act.
Section 387(c) - Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[40]
As noted above, upon the Applicant rejecting the offer to move to the cleaning division, it is apparent that Mr Roe then communicated to the Applicant that her employment was terminated. In these circumstances, the Applicant was not provided with the opportunity to respond to the reason for her dismissal before the decision was made to terminate her employment. As such, I find that the Applicant was not notified of the valid reason as contemplate by s.387(c) of the FW Act.
Section 387(d) - Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
The Applicant submitted that she was pulled into a meeting without prior notice of its purpose without being informed of her ‘right to bring a support person’.[41] I understand this to be a reference to the meeting with Ms Lam, joined by Mr Nissan and Mr Joyner on 11 January 2023.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[42]
The Respondent submitted:
the Applicant did not ask to have a support person present in any meetings or discussions relating to the dismissal’
the Applicant was offered to have a support person present in all meetings with Human Resources;
in the meeting on 16 January 2024 between the Applicant and Mr Roe, the Applicant did bring a support person.
In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Section 387(e) - Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
Section 387 (f) and (g) - To what degree would the size of the Respondent’s enterprise and absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
The Respondent is a large employer and I find that the size of the Respondent’s enterprise was not likely to impact on the procedures followed in effecting the dismissal. The Respondent’s enterprise did not lack dedicated human resource management specialists and expertise.
Section 387 (h) - What other matters are relevant?
I have considered the circumstances in which the Client sought the Applicant’s removal from its Shopping Centre.
It is clear from Ms Lam’s evidence that staff had occasionally received discount coupons or small gifts, such as chocolates or product samples, from retailers. It is also apparent that the Laser Results Clinic representative who dropped off the Voucher did not communicate what it was for and that the Respondent’s staff did not have prior training on what to do when they received gifts. It seems likely that these factors contributed to the Applicant’s belief that there was nothing wrong with taking the Voucher home. There is no suggestion that the Applicant intended to ‘steal’ the Voucher.
However as noted above, it is apparent from Ms Heincelaster’s email of 18 January 2024 to Ms Lam that the Client knew the Applicant had taken the Voucher home and had not returned it when requested to do so by Ms Lam despite being informed it was for marking purposes. In that email Ms Heincelaster proceeded to state ‘Without a demonstrated acknowledgement and understanding of the adverse impact of her behaviour, I am hesitant to have her involved in future marketing activities and working at the desk where she will have access to these.’ While I accept that the Applicant had no intention of stealing, the Applicant’s conduct when her manager, Ms Lam, sought that she return the Voucher on 11 January 2023 did not assist her. As noted earlier the Applicant’s own evidence was that she reiterated her understanding that the Voucher was a sample and she sought documentation or evidence that the Voucher was for a marketing purpose. Rather than cooperating and complying with Ms Lam’s reasonable requests in her text messages on 11 January 2024 the Applicant even attended Results Laser Clinics herself to make her own enquiries about the Voucher. It is apparent from Ms Heincelaster’s email of 18 January 2024 that relevant to the Client’s decision was the Applicant’s lack of acknowledgement and understanding of the adverse impact of her behaviour. The defensive stance taken by the Applicant likely contributed to the escalation of the situation and the Client’s decision that it no longer wanted her to work at the Shopping Centre.
The difficulty in this matter is that there are no guest services roles available to the Applicant outside of the Shopping Centre and the continuation of the Applicant’s employment was dependent upon the Client allowing the Applicant to provide the services at the Shopping Centre. While I accept that it was open to the Client to exercise its rights under clause 2.2 of the Services Contract, the Respondent’s own evidence was that it did not intend to dismiss the Applicant because she had taken the Voucher home. Given the significant consequences of the Client’s decision for the Applicant, it is unclear as to why the Respondent did not request that the Client reconsider its request to have the Applicant cease working at its site. Notwithstanding this, while the Respondent did not request that the Client reconsider its request to have the Applicant cease working at its site, in all the circumstances I cannot be satisfied that that such a course would have had had the actual effect of the Client reversing its decision such that the Applicant’s employment would have continued beyond her notice period for which she was paid in lieu. This is particularly the case in circumstances where the Applicant’s own conduct contributed to the escalation of the situation and outcome.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[43] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that there was a valid reason for the dismissal. When the Applicant communicated that she did not wish to work in the cleaning division, dismissal was communicated as an immediate consequence such that she was not notified of the valid reason or given an opportunity to respond, and it is not apparent that any consideration was given to a discussion with the Client to ask it to reconsider its decision based on the Respondent’s own findings.
However, on 11 January 2023 Ms Lam clearly communicated to the Applicant that the Voucher was for a marketing activation and needed to be returned. Had the Applicant simply committed to looking for the Voucher that she had taken with a view to returning it promptly, it seems unlikely that the matter would have escalated in the way that it did. Instead, by reiterating that the Voucher was a sample and seeking documentation or evidence that the Voucher was for a marketing purpose it is apparent that the Applicant was questioning what was being asked of her and did not immediately cooperate with Ms Lam when she requested that the Applicant bring the Voucher back. The Applicant’s conduct impeded Ms Lam’s ability to quickly diffuse the situation with the Client and the Client subsequently exercised its rights under the Services Contract in requesting that the Applicant not work at the Shopping Centre. At this point the inability of the Applicant to continue to perform her Role was outside of the Respondent’s control.
As such and having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.
Conclusion
Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant’s application is therefore dismissed.
COMMISSIONER
Appearances:
Ms Wittner on her own behalf.
Ms Shanahan for the Respondent.
Hearing details:
2024
10 December.
By Video using Microsoft Teams.
Final written submissions:
2024
14 December.
[1] Applicant’s Form F2 Unfair Dismissal Application, response to q. 2.1.
[2] Employment Contract, clause 1.1.
[3] Shanahan Statement, p. 1.
[4] Applicant’s Form F2 Application, response to q. 1.1.; Respondent’s Form F3 – Employer response to unfair dismissal application, response to q. 3.2.
[5] Applicant’s submissions, p. 2.
[6] Applicant’s Form F2 Application, Attachment 1.
[7] Applicant’s Form F2 Application, Attachment 2.
[8] Applicant’s Form F2 Application., Attachment 4.
[9] Warrell v Fair Work Australia [2013] FCA 291.
[10] Ibid.
[11] [2024] FWCFB 353 at [151].
[12] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[13] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[14] Ibid.
[15] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[16] Crozier v Australian Industrial Relations Commission [2001] FCA 1031, [14].
[17] Respondent’s Submissions, response to q. 3c.
[18] Respondent’s Submissions, response to q. 3c.
[19] Applicant’s Submissions.
[20] Applicant’s ‘Detailed Timeline’, p.2.
[21] Lam Statement, p. 1.
[22] Lam Statement, p.1.
[23]
[24] Applicant’s ‘Detailed Timeline’, p.2, screenshot of text messages.
[25] Applicant’s ‘Detailed Timeline’, p.2.
[26] Lam Statement, p.2.
[27] Applicant’s ‘Detailed Timeline’, p.4.
[28] Shanahan Statement, p.2.
[29] Applicant’s ‘Detailed Timeline’, p.4.
[30] Applicant’s ‘Detailed Timeline’, p.5.
[31] Shanahan Statement, p.2.
[32] Shanahan Statement, p. 2.
[33] Applicant’s ‘Detailed Timeline’, p.5.
[34] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[35] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[36] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[37] Ibid.
[38] Respondent’s Submissions, response to q. 3e.
[39] Roe Statement.
[40] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[41] Applicant’s Submissions.
[42] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[43] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
Printed by authority of the Commonwealth Government Printer
<PR785023>
0
9
0