Irene Tsilivis v The Jewellery Group Pty Ltd T/A Zamels

[2016] FWC 8448

[2016] FWC 8448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Irene Tsilivis
v
The Jewellery Group Pty Ltd T/A Zamels
(U2016/8257)

COMMISSIONER WILLIAMS PERTH, 8 DECEMBER 2016

Termination of employment.

[1] This decision concerns an application made by Ms Irene Tsilivis (Ms Tsilivis or the Applicant) for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The Respondent is The Jewellery Group Pty Ltd T/A Zamels (Zamels or the Respondent).

Background

[2] Ms Tsilivis was employed as the Store Manager of the Zamels Carousel jewellery store.

[3] The reasons for Ms Tsilivis’s termination are contained in a letter of termination dated 30 June 2016. That letter states that the Respondent had decided to terminate her for “serious gross misconduct” following an investigation. The letter says the investigation found that Ms Tsilivis had breached the Respondent’s security policy, was responsible for the theft of staff sales and had cancelled customer laybys when customers were not present.

[4] At the hearing of this application Ms Tsilivis gave evidence as did Mr Gavin Shaw (Mr Shaw) a past WA State Manager of Zamels and Ms Ruth Moore (Ms Moore) who had been a Sales Assistant at Zamels Carousel up until April 2016. The Respondent called two witnesses, Ms Melanie McClave (Ms McClave) the Respondent’s Chief Operating Officer and Ms Marijana Masic (Ms Masic) the Assistant Store Manager at Zamels Carousel.

Factual findings

[5] Having considered the evidence of all the witnesses my findings are as follows.

[6] Ms Tsilivis had previously worked for the Respondent in 2010 through to 2013. She had commenced at the Midland store as a casual employee and was promoted to Assistant Manager at the Kingsway store before becoming Manager of the Whitfords store. She was moved to the Warwick store, as she explained, to get that store going because it was not performing well. Around 2013 she left her employment with the Respondent but continued to work in the jewellery industry for a competitor, Angus and Coote. In 2015 she was approached by the Respondent’s management who asked her to return to work for them. She agreed and commenced employment as the Store Manager for the Zamels Carousel store in July 2015.

[7] On 24 June 2016 Ms McClave received a phone call from the Store Manager of Zamels Garden City who told her that he had received a number of calls from staff at the Carousel store regarding suspicious behaviour and breaches of company policy.

[8] On 27 June 2016 Ms McClave spoke to Ms Masic who told her that Ms Tsilivis had performed a number of layby cancellations recently but the refund of the customers deposit had not been given to the customer, nor had the money been banked. She told Ms McClave she had raised this with Ms Tsilivis but had been ignored. She explained to Ms McClave that the banking for the day did not reflect the fact that there should have been an amount over. Ms Masic also explained she had concerns about the security and safety of the staff in the store because Ms Tsilivis regularly breached the security policy by entering the store alone in the morning and leaving the door unlocked and that when she later arrived Ms Tsilivis had stock already out of the safe and spread out around the counters.

[9] Following this discussion Ms McClave asked her loss prevention staff to investigate the layby transactions in the Carousel store and to also get the security alarm records which would demonstrate the opening times for the store.

[10] Ms McClave’s evidence was that investigation by loss prevention indicated the following:

• On 10 May 2016 five laybys were cancelled by Ms Tsilivis. The total value of refunds that should have been returned to customers, being the balance of their deposits after subtracting the store’s administration fee, was $214.80.



• On 27 May 2016 Ms Tsilivis processed another layby cancellation for $70 in the name of a customer, Mr Allen. The transaction was processed as a $55 forfeit layby fee and $15 returned to the customer.



• Some days later Ms Tsilivis subsequently processed two cancelled laybys and recorded the forfeits correctly. Ms McClave viewed this as demonstrating Ms Tsilivis was aware of the correct process for forfeiting laybys and recording these in the Respondent’s systems.



• Banking discrepancies were identified from the store which related to customers returning to request money owed to them from their cancelled layby deposit.



• The banking details for the store did not at any time record an over amount which would be consistent with Ms Tsilivis having in error, banked the balance of the layby deposits which should have been returned to customers following the cancellation of their laybys.

[11] Ms McClave formed the view that these details plus the potential breaches of the security policy were sufficiently serious that Ms Tsilivis should be suspended and interviewed regarding these matters.

[12] On 28 June 2016 Ms Tsilivis was approached by Ms McClave at the store and Ms McClave put a number of allegations to her namely that she had breached security policy, stolen staff sales and cancelled laybys without customer approval. She was told she would be contacted within 24 hours to confirm a time for a meeting to discuss the allegations. The following day was Ms Tsilivis’s rostered day off which she mentioned, however Ms McClave advised her that as an employee she was required if necessary to attend a meeting the next day 29 June 2016 regardless of this. Ms Tsilivis was told that she could bring a support person to the meeting if she wished.

[13] Ms McClave then proceeded to interview other staff at the Carousel store regarding these matters.

[14] On the morning of 29 June 2016 at 7:44am Western Standard Time the Respondent sent Ms Tsilivis an email with an attached letter confirming the meeting for 1:00pm that day. I accept the evidence of Ms Tsilivis that she did not see that email until sometime after 12:00pm and so she rang Ms McClave and told her she could not be there before 2:00pm as she needed to arrange for her support person to accompany her. Ms Tsilivis asked to move the meeting to the following day but Ms McClave did not agree to this.

[15] On balance I accept the evidence of Ms McClave however that she advised Ms Tsilivis that she could if she wanted hold the meeting on a later date but that she was only entitled to delay the meeting once. I accept that in response Ms Tsilivis agreed to proceed with the meeting later that day and to attend on her own.

[16] At the commencement of the meeting I accept that Ms McClave advised her she did not have to proceed without a support person but Ms Tsilivis asked her to continue with the meeting.

[17] Ms McClave then raised in some detail a number of allegations to which Ms Tsilivis responded.

Opening the store - breaches of security policy?

[18] I accept the evidence of Ms McClave as to the Respondent’s store security policy and that this is regularly reinforced via emails 1 to staff, including Ms Tsilivis, during her period of employment. Relevantly the requirement of the Respondent is that at least two staff members are present for opening and closing of the store and no one is to enter the store alone. The front door/grill must be locked whilst the stock is being transported out of or into the stores safe.

[19] The security standards underpin the basis of the Respondent’s insurance policies and non-compliance with the Respondent’s security policy may result in the company being unable to make a claim for losses or to properly care for the welfare of their employees.

[20] The usual opening time for the Carousel store is 8:30am. Staff are expected to attend approximately 10 minutes before their usual start time.

[21] Ms Tsilivis’s evidence was that she would open the store alone and had been told she could do this by the previous Regional Manager Mr Shaw. Her evidence was that he had agreed that she could do this at the time she was interviewed for the position. She denied taking stock out and putting it on counters before another staff member had arrived.

[22] Her evidence in chief was that she would open the door, deactivate the alarm, go to the safe and open it, get the tills and money out and open the cash registers, by that time the second employee would have arrived and they would then start taking out the stock and setting up.

[23] She would generally open the store and deactivate the alarm between 8:15am and 8:20am but agreed that on a few occasions she would come in before 8:00am.

[24] Under cross-examination she agreed that the policy for opening the safe was to wait for someone to be there with her but that she opened up the safe and took the money out when she first entered the store 2.

[25] Ms Tsilivis as the Store Manager was responsible for ensuring all staff complied with the Respondent’s policies.

[26] Mr Shaw’s evidence which I accept was that due to high work volumes it had sometimes been necessary for managers to open stores on their own which he agreed was contrary to the Respondent’s policies. His evidence was that every store in WA during the 18 months he was employed with the Respondent was sometimes doing this. Mr Shaw however did not authorise Ms Tsilivis to enter the store and not lock the door behind her nor would he have permitted this. He did not authorise Ms Tsilivis to enter the store on her own and open the safe and take the money out of it. The extent of his authorisation to Ms Tsilivis to enter the store early by herself was limited to when this was necessary because there were promotions or stock takes which necessitated a manager spending extra time in the store. Mr Shaw denied that when Ms Tsilivis was interviewed by him he agreed she could enter the store early because that was what she preferred to do 3.

[27] Ms Moore was employed at the Zamels Carousel store between February 2016 and April 2016 as a Sales Assistant. On those occasions when she started work and Ms Tsilivis had opened the store before her arrival Ms Moore’s evidence was that the door would not be locked, she would just come in, however she did not recall seeing stock already out on the counter but the safe would be open 4.

[28] Ms Masic has been employed with the Respondent since 2009, first as a casual Sales Consultant at Zamels Carousel but then as Assistant Store Manager from 2012. Ms Masic would regularly arrive at the store to find Ms Tsilivis alone, the door unlocked and stock out on the counters. She recognised this as being contrary to the Respondent’s policies. She raised this with Ms Tsilivis who dismissed her concerns. Her evidence was that previous store managers at Carousel did not arrive early as Ms Tsilivis often did. She and the other staff were concerned for their safety because Ms Tsilivis would leave the door unlocked after she had arrived and when they arrived after her they were worried somebody could have entered the store and be waiting for them inside 5.

[29] To the extent that there is some conflict between the evidence of Ms Tsilivis and Ms Masic as to Ms Tsilivis’s practices, specifically about having already put stock out on the counters before the second staff member arrived I accept the evidence of Ms Masic. I note the evidence of Ms Moore was to the effect that she did not recall seeing stock already out on the counter rather than a denial that this ever occurred.

[30] Considering all of the witness evidence on this matter I find that the Respondent’s policy with regard to security when opening the store is as explained in Ms McClave’s evidence above. I am satisfied that Ms Tsilivis was aware of that policy.

[31] I accept that Mr Shaw authorised Ms Tsilivis, in limited circumstances only, to open the store alone contrary to the Respondent’s policy. Those circumstances however were limited to occasions when a manager needed to undertake additional work such as when they were preparing for sales promotions or for stock takes. Mr Shaw did not authorise Ms Tsilivis to open the store early and alone whenever she wished nor to leave the door unlocked nor to open the safe and take the money out whilst alone 6.

[32] Based on Ms Tsilivis’s evidence I find that she regularly opened the store alone and early and did not limit this to the circumstances in which Mr Shaw had authorised her to do this. I am satisfied that on many occasions Ms Tsilivis was opening the store alone and early contrary to the Respondent’s policy and without authority to do so from Mr Shaw. Ms Tsilivis when opening the store would regularly do so alone and on occasions 30 minutes before opening time. She commonly would leave the door unlocked, would open the safe and remove the tills and money from the safe. Ms Tsilivis would also commonly remove the stock from the safe and place it on the counters before the second staff member arrived.

[33] Ms Tsilivis continued to open the Carousel store this way even after Ms Masic raised her concern with her about this practice. I accept that Ms Masic was concerned for her safety as a result of Ms Tsilivis’s practice of opening the store early and alone.

Other staffs’ sales

[34] In her evidence Ms Tsilivis denied that she had claimed sales that were made by other staff as her own or had made it difficult for staff who had not received credit for sales they had made to correct the records to show that they were responsible for these sales.

[35] The evidence of Ms McClave, which I accept is hearsay, is that after suspending Ms Tsilivis on the afternoon of 28 June 2016 she interviewed the other staff members and was told by Shannon that on a number of occasions Ms Tsilivis had stolen her sales and made it difficult or refused to reallocate these back to her. Ms McClave’s evidence included considerable details as to what Shannon had explained with reference to particular point-of-sale numbers as an example of this behaviour. Ms McClave’s evidence also was that two other employees namely Amanda and Ms Karabacak both similarly complained about Ms Tsilivis taking credit for other staffs sales.

[36] Ms Masic’s evidence was that she had witnessed Ms Tsilivis taking customers away from other staff and had also seen how difficult Ms Tsilivis had made it for those staff members to get their sales reallocated back to them when Ms Tsilivis had taken their sale. Her evidence was that in one instance Ms Tsilivis had made up a new rule that Ms McClave was the only person who could authorise a change of the point-of-sale number that had been allocated to a sale. This was not correct and all processing issues and errors are addressed within the store by the local management which was in fact the practice of Ms Tsilivis when she had put other staffs’ sales in her name and had to change them over when those staff had confronted her about this. In those circumstances no approval from Ms McClave was asked for or obtained by Ms Tsilivis.

[37] Ms Masic’s evidence was that due to the number of cases where Ms Tsilivis had processed sales under her name which were sales made by other staff, there was a lack of trust and everyone was nervous about Ms Tsilivis coming near them when they were with customers. Her evidence was that Ms Tsilivis’s behaviour concerned the employees because if they failed to meet their targets this would result in a discussion about their performance so it was imperative for their future employment to have all their sales recorded against their name. In addition this incorrect recording of sales involved a financial loss to the staff because part of their remuneration was based on sales.

[38] Ms Masic’s evidence regarding Ms Tsilivis taking the credit for the sales of other staff 7 was not challenged in cross-examination and was consistent with the hearsay evidence Ms McClave gave, mentioned above, and I accept Ms Masic’s evidence in full on this issue.

[39] Ms Tsilivis does not get a sales commission or bonus directly for having made a sale. However there are targets set for her as the Manager above which she would be paid a bonus. There are also personal bonuses potentially for Ms Tsilivis which are referred to as club levels. Ms Tsilivis under cross-examination agreed that changing the sales of other employees into her name would provide her with a benefit towards achieving these club levels 8.

[40] I am satisfied on the evidence that on a number of occasions Ms Tsilivis changed the store’s records to show that a sale which had been achieved by another salesperson was falsely recorded as her sale. On each occasion this was detrimental to the interests of the other salesperson and potentially financially beneficial for Ms Tsilivis. In addition I am satisfied that on a number of occasions when a salesperson challenged her about such false recording of their sales and attempted to correct this Ms Tsilivis actively frustrated their efforts.

[41] The evidence of Ms Moore is that shortly before she left she negotiated a layby sale and Ms Tsilivis assisted her by typing up an application for a Certegy Payment Plan. This made it quicker for Ms Moore to process the sale although she was capable of doing this herself. Ms Moore was soon to be leaving her employment and so said to Ms Tsilivis that she should take that sale 9.

[42] Ms Tsilivis was aware of the company policy that if a staff member has made such a sale on which there is commission or bonus payable but that sale is finalised after their employment has ended they are not entitled to any commission or bonus payment.In these circumstances the Respondent is not due to pay anything by way of commission or bonus on the sale to anyone 10.

[43] Ms Tsilivis agreed that the records for this sale show her as the salesperson rather than Ms Moore but the records do not show that Ms Tsilivis was part of a layby process 11.

[44] I am satisfied then that Ms Tsilivis recorded this sale against her name when she had not been the salesperson responsible for the sale and therefore this sale would potentially have counted towards Ms Tsilivis receiving a bonus if Ms Tsilivis had achieved her other targets. Her actions in these circumstances were contrary to the Respondent’s policy and inappropriate as the Manager of the store.

Laybys

[45] Ms Tsilivis in her witness statement and oral evidence in chief says she was never offered any formal training about laybys.

[46] Ms Tsilivis sent letters to five customers whose laybys were overdue on 26 April 2016 and indicated that their purchases would be cancelled if they did not make the appropriate payments within seven days.

[47] Ms Tsilivis said that the five laybys were cancelled on 10 May 2016 because the customers had not responded. After cancelling the laybys she rang sales processing at head office and asked them if what she had done was right and they told her not to worry about it the till will sort itself out at the end of the day. Her witness statement said that at the end of the day the store’s banking balanced, with no money over.

[48] At the meeting with Ms McClave when the layby issue was discussed and Ms Tsilivis referred to her lack of training she says Ms McClave replied that she is an experienced Manager and should know better.

[49] Ms Tsilivis understood that the customers would get a refund of their layby deposit minus the administration costs which are taken out.

[50] Ms Tsilivis agrees that she did the cancellation of the laybys incorrectly 12. She says she only learned the proper process the week after 10 May 2016.

[51] Ms Tsilivis denies ever taking any money for herself out of the cancelled layby transactions.

[52] Under cross-examination Ms Tsilivis said that in the past she would send 20 letters at a time to customers with laybys and most of them would come back into the store and say they could not afford the purchase and she would give them their money back as cash straight away 13.

[53] Ms Tsilivis agreed that she knew how to do a cancellation of a layby and that you must give the customer their money back at that point. Ms Tsilivis said however she did not know how to forfeit a layby.

[54] On 10 May 2016 she cancelled the five laybys but she did not hand any money to any customer at that point 14. No customers came in for their money. She did not put the money to one side for them.

[55] Her evidence was that if the customers did not come back to collect their deposits, less the administration fee, she assumed that head office would send the customer a cheque for that amount.

[56] The evidence of Ms McClave, which I accept is hearsay, is that after suspending Ms Tsilivis on the afternoon of 28 June 2016 she interviewed the other staff members and two staff detailed to her their concerns they had about how Ms Tsilivis had processed layby cancellations and forfeitures.

[57] Ms McClave’s evidence regarding the issue of laybys being discussed in the meeting she had with Ms Tsilivis on 29 June 2016 was that Ms Tsilivis confirmed she had processed a number of layby cancellations but could not explain why there was not a banking discrepancy when the customers had not had the balance of the deposit handed back to them. Ms McClave says that Ms Tsilivis said it must be a computer glitch and she was not sure of the process. Ms Tsilivis said she did not escalate the problem or investigate it and just thought the system would take care of it.

[58] Ms McClave told her that she was an experienced Manager who was well aware of the processes and she should know these and should know that the money is missing. Ms Tsilivis’s only response was that it must be a computer issue.

[59] Ms Tsilivis’s response to being told that money must be missing if she did not give it back to the customers was that may be one of the other staff that day did it. Ms Tsilivis confirmed that it was her that had processed the layby cancellations and she had opened the till and processed the cancellations and cashed up that night.

[60] Ms McClave says that she asked Ms Tsilivis if she had discussed what she had done with any other team members on that day to raise the concerns about the money with Ms Masic and Ms Tsilivis said she did not. In response to this Ms McClave then queried her as to how the other staff could have been involved if they did not know there was extra money in the till unaccounted for. Ms Tsilivis had no explanation for this but repeated that they could have taken the amount. Ms McClave’s evidence that this was illogical given the other staff were unaware of the layby cancellations that Ms Tsilivis herself had processed.

[61] Ms McClave then asked Ms Tsilivis about a layby cancellation for a customer Mr Allen, and how she had recorded that she had refunded him the money but had not done so because he is still waiting for his money and confirmed he never asked her at that point to cancel it or had received any funds from her. Ms Tsilivis stated that they were all old laybys and she was clearing her records.

[62] Ms McClave under cross-examination said that Ms Tsilivis had cancelled over 20 laybys where there is no record of the customer returning to the store to claim their remaining deposit. Her evidence was that Ms Tsilivis when she met with her said that she must have done something wrong when she processed the cancellation of layby on 10 May 2016 or that there was a processing error in the layby system itself. Her evidence was that Ms Tsilivis never once mentioned to her at the meeting that she was not aware of how to do a forfeit of a layby 15 and when Ms McClave looked at the evidence after the meeting she could see that Ms Tsilivis had done numerous layby cancellations correctly and return money to customers.

[63] Her evidence was that if a customer does not return into the store then the balance of their deposit cannot be handed to them directly and would remain in the till. There is no policy of the Respondent to the effect that if the customer does not return to the store that the refund of the deposit is sent out to them by cheque. The customers have to come into the store to collect it 16.

[64] Ms Masic in her witness statement said that after discovering a number of layby cancellations had been processed by Ms Tsilivis on 10 May 2016 and then finding out that the customers had not received the money back she tried on a number of occasions to get a clear explanation from Ms Tsilivis about what had happened but was told it must be a processing error. Her evidence was that neither herself, other staff or sales processing could see any error in the processing of these transactions which had been entered by Ms Tsilivis to show that the customers had received a full refund. Consequently Ms Masic said she felt she had no alternative but to raise concerns about Ms Tsilivis’s conduct.

[65] Her evidence was that she was working on 10 May 2016 and neither she nor any of the other staff saw any customers come in to cancel their layby’s. Ms Tsilivis never told her she had cancelled any layby transactions nor had she stated she was experiencing any issues with the system or money balances.

[66] To Ms Masic’s knowledge the missing money has not been discovered.

[67] Ms Masic’s evidence was that on 18 May 2016 they had to process a cancellation of a layby for a customer, Ms Shaw, a second time and recorded a banking discrepancy for $75 because Ms Tsilivis had processed the cancellation on 10 May 2016 but had never given the customer her money back. This caused distress to the elderly customer as Ms Masic had initially informed her that she had cancelled her layby before and had already received her money back. The customer was kept waiting for a long period of time until sales processing assisted Ms Masic by telling her to just reprocess the refund to assist the customer. Ms Tsilivis did not get involved with talking to sales processing about this issue and her behaviour left Ms Masic feeling uncomfortable.

[68] Ms Masic later investigated this transaction which was originally done on 10 May 2016 and found several other cancellations processed at the same time, in sequence, to the value of $214.80.

[69] Ms Masic’s statement was that while she was not present on 27 May 2016 she is aware that another customer’s layby was cancelled without them being present, Mr Allen. Ms Tsilivis had cancelled his layby in the system and this showed that the customer had been charged a $55 cancellation fee and $15 was refunded to him. The other team members working on 27 May 2016 stated that Mr Allen had not come into the store to their knowledge. The banking for that day recorded a $40 under, which meant the store was missing cash to the value of $55, as no money was returned to the customer. Ms Masic says she later discovered this had happened from the customer when he came in and wanted to cancel his layby and their system showed it had already been done. Ms Tsilivis again gave no reason for the discrepancies and dismissed her concerns about this.

[70] Her evidence was that she knew that Ms Tsilivis was well aware of the processes to process layby refunds and how to forfeit a layby as she has previously and since correctly processed them. She refers to two examples of this both completed on 13 June 2016 17.

[71] Ms Masic’s evidence was that due to the ramifications of being classed as having been involved with the missing money or the failure to comply with the security policy she spoke confidentially with the Store Manager of Garden City who said he would have a word in confidence with Ms McClave at the next manager’s meeting.

[72] I note there are a number of conflicts between Ms Masic’s evidence and Ms Tisivis’s evidence on the issue of laybys processed by Ms Tislivis. Ms Masic was not cross-examined on her evidence concerning the processing of layby cancellations and forfeitures by Ms Tsilivis. Her evidence was generally consistent with what Ms McClave said she had been told by Ms Masic on 29 June 2016. I accept Ms Masic’s evidence in full on these issues and prefer her evidence to that of Ms Tsilivis.

[73] I have not found Ms Tsilivis’s evidence on the question of processing laybys at all convincing. The explanations she gave to Ms McClave about these layby discrepancies on 29 June 2016 differ from the evidence she has given to the Commission in this matter. Ms Tsilivis’s evidence on these issues is not accepted where it is inconsistent with the evidence of Ms McClave and Ms Masic.

[74] I find Ms Tsilivis, as an experienced Manager of the Respondent with a number of prior years experience in retail jewellery stores, contrary to her denials was aware of the correct procedure for processing cancelled or forfeited laybys. Her evidence that she processed five such transactions on one day without being certain how to do them correctly is not believable. I do not accept her evidence that she was uncertain of the correct way in which to process such cancellations or forfeitures because she had not been specifically trained how to do these. As such I am satisfied that either deliberately or carelessly Ms Tsilivis has incorrectly processed at least five layby cancellations or forfeitures. Monies that should have been handed back to the respective customers was not. This resulted in there being discrepancies in the store’s tills balance which remains unexplained. This also resulted in upset for two of the customers and embarrassment for the Respondent who initially advised these customers that they had already received refunds when in fact they had not.

[75] Whilst there may be a suspicion that Ms Tsilivis misappropriated some of these monies from these forfeited laybys there is no positive evidence to support such a finding.

Submissions of the Applicant

[76] The Applicant denies the allegations put to her by the Respondent in the meeting with Ms McClave on 29 June 2016.

[77] Having received the Applicant’s version of events, without further investigation, the Respondent summarily dismissed the Applicant.

[78] The Respondent proceeded to summary termination of the Applicant’s employment, notwithstanding that the Applicant denied the allegations, and provided reasonable explanations of any perceived anomalies in the running of the Carousel store. The Respondent did not investigate the matters put by the Applicant or demonstrate that it had, in any way demonstrated that it had considered the matters put.

[79] It is submitted that, where an employer simply goes through the motions of giving the employee the opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made, does not constitute an opportunity to defend.

Harsh, unjust and unreasonable

[80] The Applicant submits that the Respondent’s termination of the Applicant’s employment is both, substantively, and, procedurally unfair.

[81] It is submitted there was no valid reason for the termination related to the Applicant’s capacity and she was not provided with a proper opportunity to respond to any reason related to her capacity.

[82] She was unreasonably refused the opportunity for the meeting to be scheduled so as to allow her to have a support person present to assist at any discussions relating to the dismissal and she had not been warned about any of the issues of alleged unsatisfactory performance prior to those alleged failures being relied upon to justify her dismissal from employment.

[83] As discussed in B, C and D v Australian Postal Corporation T/A Australia Post (B,C and D) 18, in order to act fairly, an employer must demonstrate that all breaches are dealt with in a consistent manner, with consideration given to the nature and circumstances of a breach.

[84] Where an employee has engaged in misconduct in breach of company policy, factors such as an employers failure to actively enforce the policy, a workplace culture of non-compliance, disparate disciplinary treatment of employees who have engaged in similar breaches and the age and circumstances of individual employees may result in a finding that a dismissal is “harsh” in all the circumstances.

[85] As per the Applicant’s evidence in this matter, the opening of stores by lone managers was variously instructed and approved, or, at the very least, the policy against such procedures was not actively enforced, such that many other managers acting in the same way have not been sanctioned, let alone dismissed, by the Respondent, thus demonstrating grossly disparate responses to the Applicant’s perceived wrong doing, as compared to the lack of action taken against others.

Alternative submission

[86] In the alternative, even if the Applicant’s actions are held to have given rise to a valid reason (which the Applicant strongly contends they have not), the Applicant submits that the dismissal of the Applicant from her employment, in all the circumstances, was “harsh, unjust or unreasonable” notwithstanding any such valid reason, on the basis set out in the majority decision in B, C and Dwhich was affirmed on appeal to the Full Court of the Federal Court.

[87] This principle is captured by the discussion set out at paragraphs [41]-[46] (inclusive) of B,C and D, and the statement made at paragraph [58] of that decision, where it provides that:

“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(a) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

Against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”

[88] In B,C and D, at paragraph [41] the Full Bench refers to a plethora of cases in which this principle applies and provides that matters included in consideration of category (i) above were the extent to which harm or damage caused by the conduct of the particular employee.

[89] The category number (3) referred to in paragraph [42] of B,C and D in the context of “mitigating and other relevant matters” is particularly relevant to the Applicant’s position, providing that:

“The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]”

Submissions of the Respondent

[90] The Respondent says the dismissal was fair because:

(a) There was a valid reason for the dismissal relating to the Applicant’s capacity or conduct.

(b) The Respondent believes they had adequate reasons to substantiate the grounds for what they term “serious gross misconduct”.

(c) The conduct and behaviour represented a real and present threat to the business and its employees.

(d) The Applicant was found to have engaged in fraud with the company business records and to obtain a benefit.

(e) The Applicant’s conduct posed a real risk to the Respondent’s business and the Applicant has been made aware of those risks on several occasions; the Applicant confirmed she was aware of the quarterly email reminders. The Applicant negligently and blatantly ignored those risks to the employees of the store, the company and its assets.

(f) The Applicant was afforded all their rights under the Fair Work Act and waived their rights to a support person to be present or to reschedule the meeting. The 24 hour period of the investigation meeting is company policy and at the request of the Applicant to clear the matter up. The Applicant was aware and had every right to cease the meeting at any time and reschedule.

(g) The Applicant’s behaviour could have caused serious injury or loss of life to herself and other employees of the company. Additionally the Applicant’s conduct could have resulted in a loss to the company in excess of $1.5 million for stock, jeopardised the ability for the company to obtain insurance in the future due to breaches in its own policy, sustain a massive work cover claim and ruin the reputation of the company.

(h) If the Commission believes that the Respondent failed to meet all of the procedural obligations under the Act, the Applicant’s conduct or capacity should be viewed in full as part of its determination of this application.

The legislation

[91] Section 387 of the Act sets out the matters the Commission must have regard for when determining an application such as this. The section is set out below:

“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.”

Consideration

Valid reason

[92] On many occasions Ms Tsilivis was opening the store alone and early contrary to the Respondent’s policy and in circumstances outside those Mr Shaw had authorised her. When opening the store alone and early Ms Tsilivis would, before the second staff member arrived, commonly leave the door unlocked, open the safe, remove the tills and money from the safe and at times remove the stock from the safe and place it on the counters. These actions of Ms Tsilivis were not authorised and were serious contraventions of the Respondent’s security policy of which she was aware. This was a deliberate action by Ms Tsilivis that put herself and other staff and the Respondent’s goods at risk. This conduct was a valid reason for Ms Tsilivis’s dismissal.

[93] On a number of occasions Ms Tsilivis changed the store’s records to show that a sale which had been achieved by another salesperson was falsely recorded as her sale. On each occasion this was detrimental to the interests of the other salesperson, other than in the case of Ms Moore who’s employment had ended, and potentially financially beneficial for Ms Tsilivis. These actions by Ms Tsilivis were reprehensible, dishonest and totally inconsistent with her role as the Manager of the store. This conduct was a valid reason for Ms Tsilivis’s dismissal.

[94] Ms Tsilivis has either deliberately or through carelessness incorrectly processed at least five layby cancellations or forfeitures. Monies that should have been refunded to the respective customers who had previously paid deposits for each of these laybys were not refunded to them by Ms Tsilivis. This resulted in there being discrepancies in the store’s tills balance which remains unexplained. This also resulted in upset for two customers and embarrassment for the Respondent who initially advised each customer that they had already received refunds when in fact they had not. This conduct was a valid reason for Ms Tsilivis’s dismissal.

Notification of the reason

[95] Ms Tsilivis was notified of the reason for which she was to be dismissed at the meeting with Ms McClave on 29 June 2016 and in the letter of dismissal.

Opportunity to respond

[96] Ms Tsilivis was advised the day before her meeting with Ms McClave as to the nature of the allegations against her and was given a full opportunity on 29 June 2016 to respond to those allegations and did so.

Unreasonable refusal to allow a support person

[97] The Respondent did not unreasonably refuse to allow Ms Tsilivis to have a support person present at the discussions relating to dismissal with Ms McClave.

Unsatisfactory performance

[98] To the extent the reasons for dismissal could be construed as to do with Ms Tsilivis’s unsatisfactory performance no previous warnings had been given to her because these matters had not previously come to light.

Size of the employer’s enterprise and the absence of dedicated human resource specialists or expertise

[99] The Respondent is a large enterprise. No evidence was led as to the presence of dedicated human resource specialists or otherwise. In the circumstances the procedures followed by the Respondent were appropriate in all the circumstances.

Other relevant matters

[100] The Respondent dismissed Ms Tsilivis summarily for what they viewed as “serious gross misconduct”.

[101] Where an employee has been dismissed without notice for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response 19. However I do not accept that is the case in this instance. Ms Tsilivis entering the jewellery store alone and early in the morning as explained above was a conscious act. She was aware of the security policy prohibiting this but chose to ignore it. In any event common sense would dictate that opening a jewellery store alone and leaving the door unlocked as she did was a serious security risk let alone opening the safe and taking stock out of the safe. Ms Tsilivis was the Manager of the jewellery store. Ms Tsilivis continued to do this even after staff raised their concerns about this with her. Separately, altering the store records to falsely show she was responsible for the sales other staff had achieved again was a conscious act and the antithesis of the behaviour expected of any manager. Consequently summary dismissal was not a disproportionate response.

[102] The dismissal of Ms Tsilivis in all the circumstances was neither harsh, unjust, nor unreasonable. Ms Tsilivis was not unfairly dismissed.

[103] Consequently this application will now be dismissed and an order to that effect will be issued.

COMMISSIONER

Appearances:

R. Lewis of Roger Lewis Legal for the Applicant.

M. McClave on behalf of the Respondent.

Hearing details:

2016.

Perth:

October 6 and 7.

 1   Exhibit R1, Appendix R.

 2   Transcript at PN122-PN124.

 3   Ibid., at PN487-PN499.

 4   Ibid., at PN591–PN592 and PN600–PN601.

 5   Exhibit R2 at paragraphs 2 and 5 and Transcript at PN851–PN861 and PN875.

 6   Transcript at PN498.

 7   Exhibit R2 at paragraphs 12 and 13.

 8   Transcript at PN265-PN267.

 9   Ibid., at PN588 and PN609.

 10   Ibid., at PN239 and PN252 –PN253.

 11   Exhibit R1, Appendix L at pages 4 and 5 and Transcript at PN241.

 12   Transcript at PN58.

 13   Ibid., at PN364 and PN365.

 14   Ibid., at PN368.

 15   Ibid., at PN684 and PN688.

 16   Ibid., at PN690.

 17   Exhibit R1, Appendix H.

 18   [2013] FWCFB 6191.

 19   Potter v WorkCover Corporation (2004) 133 IR 458 at [55].

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