Jacqueline Ashley Fenton v Bold Entertainment Pty Ltd T/A Bounce Gold Coast
[2022] FWC 1650
•29 JUNE 2022
| [2022] FWC 1650 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jacqueline Ashley Fenton
v
Bold Entertainment Pty Ltd T/A Bounce Gold Coast
(U2022/1074)
| COMMISSIONER SIMPSON | BRISBANE, 29 JUNE 2022 |
Application for unfair dismissal remedy – Allegations of theft and negligence – Valid reason for dismissal – Application dismissed.
On 24 January 2022, Ms Jacqueline Ashley Fenton (the Applicant/Ms Fenton) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Bold Entertainment Pty Ltd T/A Bounce Gold Coast (the Respondent).
The matter was listed for a conciliation before a Commission Conciliator on 29 March 2022 but did not settle. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 21 April 2022 where I set Directions for the filing of material. Both parties filed in accordance with the Directions, and a Hearing of the matter took place on 8 June 2022 by Video on Microsoft Teams.
At the hearing Ms Fenton represented herself, and the Respondent was represented by Mr Glenn Checkley (Mr Checkley) and Mr Ermi Avoledo (Mr Avoledo). The Applicant advised at the commencement of the hearing that one of her witnesses was in the United States and was unavailable to give evidence.
Ms Fenton gave evidence on her own behalf and provided an initial statement of 5 May 2022[1] and a reply statement on 30 May 2022. Ms Fenton also called as a witness Ms Danielle Muir (Ms Muir) who provided a witness statement. The Respondent did not wish to cross examine Ms Muir and her evidence was admitted into evidence.[2] Mr Jacob Fisher (Mr Fisher) also gave evidence subject to orders issued by the Commission to attend as sought by Ms Fenton.
The Respondent provided evidence through the oral evidence of Mr Avoledo, Mr Checkley, and witness statements and oral evidence from Ms Chantelle Buccella (Ms Buccella)[3], Ms Jazz Clarke (Ms Clarke)[4] and Mr Rikki Collier (Mr Collier).[5]
Ms Fenton did not seek reinstatement and instead sought compensation in the form of payment of the remainder of the notice period of 2 days’ pay up until 6 January 2022. This was in the context of Ms Fenton having resigned on 7 December 2021 and her notice period expiring 2 days prior to her termination.
BACKGROUND
Ms Fenton was employed with the Respondent on 1 July 2018 on a full-time basis as a Venue Manager.
Ms Fenton resigned from her role as Venue Manager verbally on 7 December 2021 and then in writing by way of email of 7 December 2021. Ms Fenton confirmed in her resignation email that her final day with the Employer would be 6 January 2022.
On or around 23 December 2021, Ms Fenton took annual leave, returning on 4 January 2022. During Ms Fenton's annual leave, she was receiving correspondence from Mr Avoledo and Mr Checkley, owners of the business, to attend to outstanding reconciliations of petty cash for December 2021, as the petty cash for December 2021 was not balanced.
Ms Fenton was dismissed on the 4 January 2022, just two days prior to what was to be her last day of employment consistent with the ending of the notice period in accordance with the resignation she had tendered on 7 December. The reason relied upon for termination of Ms Fenton’s employment on 4 January 2022 was for serious misconduct relating to the use of company funds for personal expenses and $6,328.99 of missing receipts for the 6 month period from 1 July 2021 to 31 December 2021.
After being advised of her termination verbally, Ms Fenton was sent a termination letter by email. Ms Fenton was advised that her actions constituted serious misconduct warranting summary dismissal.
The letter further advised that her accrued entitlements and outstanding pay would be withheld until restitution of the missing balance was paid.
The termination letter reads as follows:
“Dear Jacqui,
Termination of your employment
I am writing to you about the termination of your employment with Bold Entertainment Pty Ltd trading as Bounce Gold Coast.
I refer to our meeting on 4th Jan 2022 which was attended by you at Bounce Burleigh Waters, with Ermi Avoledo and myself. During the meeting we discussed $6,328.99 in missing receipts from petty cash and/or personal expenses being reimbursed by you from petty cash dating back to 1st July 2021.
As discussed during the meeting your responsibility as Venue Manager includes managing and overseeing petty cash and reimbursement from legitimate business expense receipts. Claiming personal expenses from petty cash constitutes willful theft, and failure to reconcile petty cash with legitimate business receipts constitutes willful neglect of your duties.
We will be seeking restitution for the full amount of $6,328.99. Refer attached for details.
We consider that your actions constitute serious misconduct warranting summary dismissal.
Once we have received either legitimate receipts and or restitution of the missing balance above, you will then be paid any accrued entitlements and any outstanding pay up to and including your last day of employment which is 4th Jan 2022.
You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.”
EVIDENCE AND SUBMISSIONS
Discovery of misappropriation of company funds & petty cash process
The Respondent submitted that following the Applicant’s resignation on 7 December 2021, but prior to her last day, they requested that petty cash be fully reconciled and be up to date. During this process abnormalities were discovered with the reconciliation of petty cash such as missing receipts and receipts provided not agreeing back to the amount of petty cash that had been reimbursed from daily banking.
The Respondent submitted that one large abnormality was for $815 where all receipts for this reimbursement made on 11 December 2021 were not submitted. The cash had been taken from the business, but no receipts had been provided. The Applicant submitted that she was on leave from 3 December to 12 December 2021 and petty cash was taken on the 11 December 2021, meaning she was on annual leave when this amount from petty cash was taken.
The Respondent submitted that they questioned Mr Collier, the Venue Administrator, regarding the missing receipts. He confirmed that he did not manage petty cash or have access to it, and that the Applicant was personally managing petty cash and that she would have the missing receipts. The Respondent submitted that Mr Collier also confirmed that the Applicant had taken over the management of petty cash since April 2021 when the previous Venue Administrator resigned. The Respondent further submitted that Mr Collier confirmed he has never been trained in managing petty cash since commencing his new role. This was corroborated by Mr Collier’s witness statement dated 8 February 2022.
The Respondent submitted that their Team Leaders, Ms Buccella and Ms Clarke, also confirmed that the Applicant had managed petty cash and the process was to submit receipts to the Applicant for reimbursement. The statements of Ms Buccella and Ms Clarke both dated 9 February 2022 were consistent with this.
The Applicant disagreed that Mr Collier, Ms Buccella, and Ms Clarke have never had access to, nor used petty cash or cash from the business to purchase business items.
The Applicant submitted that she is one of nine staff members who have access to the safe and the cash held inside the safe at the business premises (petty cash, till floats, safe float, daily takings).
Woolworths Urangan Receipt
Ms Fenton was asked about a receipt in the amount of $48.07 claimed and reimbursed through petty cash on 18 October 2022 for purchased made at a Woolworths in Urangan. It was put that Ms Fenton was on annual leave at the time. Ms Fenton was asked how she justified the purchase made on her personal everyday rewards card. Ms Fenton’s evidence was she did not recall making the specific purchase but accepted she was near Hervey Bay and that the receipt was her personal receipt. Her evidence appeared to be she was unaware it had been claimed through petty cash. It was put to Ms Fenton that she presented this receipt on 4 January 2022 at the meeting. She did not appear to dispute that.
Loose Moose Tap and Grill House
Ms Fenton was asked about an EFTPOS receipt for $236 for purchases of food and drink made on 11 June 2021 from her visa debit card at the Loose Moose Tap and Grill House at Broadbeach. It was put to Ms Fenton that this was claimed by her through petty cash and no staff were aware of any event at this venue. Ms Fenton said business purchases were made on her personal card. Ms Fenton said she believed the issue was outside the jurisdiction of the Commission.
I had previously explained to Ms Fenton her common law right to refuse to answer questions where she believed her answer may tend to incriminate her in the context of an ongoing police investigation. I gave Ms Fenton a warning she could exercise that right in regard to the question put to her. Ms Fenton’s response was somewhat confusing. It appeared at one point Ms Fenton sought to exercise her privilege however also gave evidence there was no evidence and that she did not remember making such a purchase.
It was clear from the documentation produced by the employer that an EFTPOS receipt exists for the purchase and the visa debit card number on the receipt corresponds with Ms Fenton’s card number.
Purchase of personal items
The Applicant submitted that the items the employer claims are “personal” expenses, were of a usual business nature and anything adhoc was always approved prior, by Mr Checkley.
Ms Fenton was asked about purchases made on 16 November 2021 for personal items including bras and underwear to the value of $67.20 using her personal cards and claimed for reimbursement through petty cash on 20 November 2021. Ms Fenton repeated her evidence that the evidence is a personal receipt of her and said she did not recall claiming these amounts through the business.
Bunnings Receipt
Ms Fenton was referred to a receipt of 9 December 2021 from Bunnings for the amount of $356.30. It was put to Ms Fenton that during the meeting on 4 January 2022 she agreed that some of the items on this receipt were personal. Ms Fenton said the items on the receipt that were not for the business were for a gate lock, however the rest were for the business. Ms Fenton claimed she notified Mr Terry O’Dwyer (Mr O’Dwyer) of this beforehand. Ms Fenton accepted that she had claimed all of the amounts on the receipt and it was an honest mistake.
Ms Fenton was asked why she could not provide evidence of any of the other purchases being related to the business including the paint purchased. Ms Fenton said the paint items were for the business. Ms Fenton was asked what was painted from 9 December. Ms Fenton said it was for the party bays. It was put to Ms Fenton that paint purchased was not appropriate for the party bays. Ms Fenton said an undercoat was purchased and that was going to be used for the party bays and another employee had already done the painting.
It was put to Ms Fenton that the party bays were painted before 9 December 2021, and she denied that and said the painting was done on 10 December 2021, but she accepted that the paint used was paint purchased by Mr Checkley. Ms Fenton also referred to photographs she had provided of the maintenance area in the business premises.
It was put to Ms Fenton that no one recalls all these items purchased from Bunnings being provided. Ms Fenton claimed she left it on the administration table.
Madam Fu Restaurant Purchase
Ms Fenton was asked how she justified a purchase of $240 claimed by her as a business expense. Ms Fenton said she did not recall claiming this expense through the business. Ms Fenton appeared to accept in this evidence that the purchased made at Madam Fu was made by her.
The Applicant stated that she followed a process which was provided and communicated by Mr O’Dwyer, Finance Manager, in relation to how to reconcile missing receipts, should a staff member not have a receipt for their petty cash purchase.
The Applicant’s evidence was that the responsibility for petty cash, as per the Skill Competencies Checklist, states it is a responsibility of 3 other roles in the business, as follows: Team Leaders to “do it” Venue Administrator to “own it” Venue Manager to sign off and Finance Manager to approve and reconcile. The Applicant stated that she was never advised by her superiors or colleagues that the process being followed was incorrect and therefore continued following Mr O’Dwyer’s direction, in regard to missing receipts and receipt storage.
Ms Fenton was asked that if she was in charge of petty cash why post it notes were being put in petty cash as reimbursable receipts as that was not in the process as described by Mr O’Dwyer. Ms Fenton claimed she was following the process explained to her by Mr O’Dwyer. The process referred to emphasised that written notes used in circumstances where someone had not kept a receipt should be infrequent and it should be ensured the process was not abused.
Chemist Warehouse Claim
Ms Fenton was asked about a purchase of $106.15 made at Chemist Warehouse for personal items claimed on 7 July 2021. It was put to Ms Fenton she provided this receipt as a further receipt to justify expenses, and it had already been claimed through petty cash on 10 July 2021. Ms Fenton said she had circled on the receipt the items that were business related. Ms Fenton’s evidence was generally not satisfactory on this issue.
$815 claim from Petty Cash on 11 December without receipts
Ms Fenton was asked about a claim for $815 on 11 December and she accepted a claim for that amount was made and that she was on leave at the time.
Claiming Diesel Fuel
Ms Fenton was asked how she could claim diesel fuel when the business car was a petrol vehicle and the business does not have a diesel vehicle. Ms Fenton said that she did not have access to the company car as it had been taken back and she had not had it for a long time. She stated that she had to pick up socks from Brisbane and Mr Checkley had agreed she could claim for that trip. Ms Fenton was asked how she could claim diesel fuel from Byron Bay and other multiple trips of claiming diesel fuel. Ms Fenton said there was no material in the Respondent’s material to support this.
The Respondent asked Ms Fenton about a claim on 7 October for fuel of $67.40 at Byron Bay using Ms Fenton’s rewards card. Ms Fenton said she did not have anything else to look at, but she had been given approval to claim fuel for picking up items for the business.
Ms Fenton raising with Mr Checkley a shortfall in petty cash
Mr Checkley accepted that Ms Fenton had said to him on 9 December 2021 that there were discrepancies in petty cash, and he should follow it up with Mr Collier. Mr Checkley said that the allegation did not provide any specifics and he did not intend to deal with it until Ms Fenton returned from leave.
Evidence of Ms Muir
Ms Danielle Muir provided a witness statement and stated that petty cash was often required for items such as but not limited to items such as fruit, milk, cakes, maintenance items and consumables that would often be the result of running stock down quickly, items not ordered correctly, or equipment maintenance required.
Ms Muir’s evidence was that Team Leaders were involved in Petty Cash as on shifts stock would run low and they would have to delegate how to buy the stock. The Team Leader is unable to leave the venue as they are responsible for the daily operations, so they would nominate a staff member to go to the shops and purchase whatever items were needed. Ms Muir stated that the understanding is that they were to bring back a receipt for reimbursement.
Once the staff member returned, Ms Muir said that it was unfortunately common that they would not provide a receipt - whether that’s due to forgetfulness, or losing it. Due to the busy nature of the venue operations, it was often difficult to then send that staff member back to the vendor to get the receipt reprinted. In that instance, Ms Muir stated that they would write a note saying what the items were, and the cost, so the money could be accounted for. The Venue Administrator would provide reimbursement money.
Evidence of Ms Buccella
Ms Buccella, a Team Leader, provided a statement dated 9 February was admitted into evidence[6]. Ms Buccella’s evidence was that Ms Fenton was in control of the petty cash and in relation to the Bunnings invoice Ms Buccella was asked about the $356 purchased from Bunnings including paint, razor blades and other items. Ms Buccella said she did not recall those items being purchased for a business purpose.
Ms Buccella accepted that staff would use their own personal banking cards to make purchases and bring back receipts for reimbursement. Ms Buccella accepted that she had taken money out of the change float to make a purchase for the business if she had been given permission from Ms Fenton and she would obtain a receipt. Ms Buccella said the only time that she had taken money instead of using her own banking card was where she did not have sufficient funds in her own account and Ms Fenton had authorised the use of cash from the business. Ms Buccella said she did not know where petty cash was kept and did not have access to it.
Ms Buccella accepted that one or two tubs of black paint were purchased from Bunnings by Ms Fenton to paint trampolines. Ms Buccella gave evidence to the effect that the trampolines were painted on 6 November 2021 in different colours from a business Mr Trampoline, but the black paint was from Bunnings.
It was put to Ms Buccella that party bays and handrails were painted in December 2021 and Ms Buccella did recall Mr Checkley painting the party bays in December. Ms Buccella said she was not aware of any other painting by any staff.
Ms Buccella said she was not aware of any takeaway food purchased from Madam Fu for training on a date that coincided with the date of the receipt.
Ms Buccella was asked if she ever had an occasion to enter an invoice into the Xero accounting system and she said no. Ms Buccella said in terms of invoicing and petty cash handling she had nothing to do with that and she did not even know where it was kept until late December 2021.
Evidence of Ms Clarke
Ms Clarke gave evidence that Ms Fenton had responsibility for petty cash and if she purchased items for the business, she would use her personal card or cash and give the receipt to Ms Fenton for reimbursement. Ms Clarke accepted that on one occasion when she purchased fruit for the business cash had been given to her by Mr Collier and she had given the receipt to Mr Collier. Ms Fenton believed that this occurred on 27 November 2021.
Ms Clarke said if she purchased an item for the business using cash from the business, it would be because Ms Fenton had given her the cash to purchase the item. Ms Clarke said it was normally the case that she would use her own money to make the purchase. Ms Clarke said usually the money would be reimbursed on the same day. Ms Clarke said any purchases she would make would be done so locally.
Mr Fisher
Mr Fisher said that he was the training and human resources manager for Bounce. It became apparent that the Respondent is a franchise and Mr Fisher works in the head office. Mr Fisher had previously been an operations manager. Mr Fisher gave some evidence about his view of the performance of other employees of the Respondent. Mr Fisher gave evidence that he understood there were issues between Ms Fenton, Ms Clarke and Mr Collier.
Mr Fisher accepted that as at 4 January 2022 he was still working in the operations role. Mr Fisher accepted that Bounce Head Office did not generally handle hiring and termination of staff in franchises and this was commonly done at the franchise level. Mr Fisher accepted that he had not been involved in the direct performance management of either Mr Collier or Ms Clarke in relation to their performance and that was the role of venue management.
Mr Collier
Mr Collier provided evidence that he commenced employment in 2015. He said Ms Fenton took over managing day to day operations of petty cash in April 2021 when Ashlee Hoskings resigned. Mr Collier said Ms Fenton was his manager and advised him that she would retain the task of managing petty cash and she never trained him in how to manage petty cash or ask him to take over the task.
Mr Collier said his only involvement in petty cash was that periodically Ms Fenton would advise him of the amount to hold back from daily banking deposits and then to provide her the cash for her to reimburse the petty cash float of $1,000. Mr Collier said any staff buying items for the business would use their own money and then provide the receipts to Ms Fenton for reimbursement. Mr Collier said Ms Fenton would load all invoices and upload all receipts into Xero.
Mr Collier said that he was the Team Leader on shift on Saturday 4 September 2021 from 7:15am to 2:45pm and on this day there was no scheduled training. He said he confirmed this by reviewing the roster and the group chat that is used to manage training internally.
Mr Collier said he confirmed that there were no meals provided by Ms Fenton from Madam Fu on 4 September 2021.
Mr Collier accepted that he had access to petty cash in the two months prior to the termination of Ms Fenton and Ms Fenton was the only other person with access to petty cash during this time. Mr Collier said that handwritten notes being used for reimbursement was not common as people would bring receipts, however he accepted that on 27 November he did access cash to purchase ice cream cakes for the business.
Mr Collier said to his knowledge petty cash was reconciled every Tuesday. Mr Collier was asked about certain text messages concerning reconciliation of petty cash. Mr Collier said these text messages were referring to him asking Ms Fenton about it because the process was not being followed.
Mr Collier was asked about a text message on 17 June 2021 where he said he had $20 that was in his pocket that had not been returned to petty cash. Mr Collier said he did not have a specific memory of this however he said he did not have access to the petty cash at that time in June 2021.
Mr Collier was asked about an email from Mr O’Dwyer to him about entering items on the banking sheet on 16 December 2021 not balancing in regard to the $815 taken from petty cash. Mr Collier said he remembered the email however he was not responsible for the receipts and he said his job was to bank what Ms Fenton had given him, and every Tuesday Ms Fenton was supposed to advise him to bank what he needed to from the money Ms Fenton had taken out of the banking so he could then bank the total amount that is supposed to balance with the petty cash that she was in charge of.
Mr Collier said Ms Fenton uploaded the invoices into Xero. Mr Collier said he did not recall ever going to the Loose Moose for an event with work. Mr Collier said he had no recollection of purchases left on the administration table on 9 December 2021 including stanley knives and stain blocker. He said he recalled paint being purchased earlier that year. Mr Collier said it would be Ms Buccella who requested maintenance items.
Mr Collier said Ms Fenton was the only one with access to the petty cash tin from April 2021 to October 2021.
December 2021
Mr Avoledo gave evidence that while Ms Fenton was on leave he questioned some items that the Respondent did not have receipts for and from that process he said it became apparent that there were things in the petty cash that needed to be worked through. Mr Checkley also said in his oral evidence that the anomalies in petty cash first arose when Ms Fenton was annual leave.
The Respondent submitted that they sent an email to the Applicant on 23 December 2021 to advise that all receipts for petty cash totalling $815 reimbursed on 11 December 2021 were missing. The Respondent said Ms Fenton then uploaded copies of receipts to the accounting system Xero.
The receipts the Applicant provided as support for amounts reimbursed from petty cash did not reconcile back to the amount that was taken. The receipts totalled just over $400 and some receipts submitted did not appear to be business related items.
When the Respondent raised this with the Applicant, the Respondent said she subsequently deleted the receipts from the accounting system which she has access to as a senior manager. The Respondent felt this was unusual behaviour and a potential issue, so they then looked into other recent petty cash reimbursements and found a series of other anomalies where receipts were completely missing, some receipts appeared to be for personal items and/or there were handwritten post-it notes used as receipts for amounts over $50.
In the hearing the Applicant accepted that there was a $815 claim on 11 December, and agreed she was sent an email on 23 December seeking the receipts. Mr Avoledo put it to Ms Fenton that she confirmed in writing that she had these receipts in her possession and would provide them when she came back. Ms Fenton stated that wasn’t what happened because she was on leave and wasn’t there. I brought to Ms Fenton’s attention there was an email she responded to dated 24 December 2022 which reads:
“Hi Ermi,
Yes I have these. Sorry was a mad rush trying to wrap up this last week. I organised it all to enter, just didn’t have time … I’ll enter today.
Jacqui Fenton”
The Applicant accepted this was her email.
It was put to the Applicant that only $400 in receipts was put in response. The Applicant did not accept this and said the money was taken while she was on leave and she couldn’t have taken the money. The Applicant said she felt pressured and intimidated so uploaded what she had with her and the rest were on her desk that Mr Collier had left there. The Applicant said that she later had to delete these entries because multiple attachments cannot be attached to Xero, so she had to delete them to upload everything.
It was put to Ms Fenton that when the meeting occurred on 4 January 2022, she came to the meeting with receipts for an amount that attempted to balance with the outstanding amount from petty cash and included previous receipts that had already been claimed and the data entered for those receipts didn’t match.
Ms Fenton said she was ambushed at the meeting and receipts had been left on her desk and she had been on leave. Ms Fenton said it was not adding up because she entered the receipts, she had with her at the time she was on leave and the remainder were at work.
Ms Fenton appeared to accept that if Xero recorded that a receipt had been entered into Xero by her then it should be assumed she was the person who entered the receipt into the system and would know what the receipt was that had been claimed.
Mr Checkley was asked by Ms Fenton why all employees who had access to petty cash were not questioned before her termination. Mr Checkley did not accept that eight people had access to petty cash however said employees were spoken to including Mr Collier who said to him he was not responsible for petty cash and that was when the employer sent her an email whilst she was still on leave.
4 January 2022 meeting
The Respondent submitted that the Applicant was then advised by email on 3 January 2022, that they would like to meet with her to work through the more recent petty cash reconciliations. Mr Avoledo gave oral evidence that the meeting on 4 January was never meant to be a disciplinary meeting however as the meeting proceeded it became apparent there were issues. Mr Avoledo said Ms Fenton initially said the Bunnings receipt was for business expenses but later conceded that it included personal items.
The Applicant disagreed that there was any investigation or notice to her, of any communication, or investigation prior to her dismissal on the 4 January 2022 and that she was not notified prior to the dismissal of any information regarding this misconduct. Further, the Applicant disagreed that a meeting was scheduled as the employer states on 3 January 2022 by the way of email.
The Applicant stated that the owners, Mr Checkley and Mr Avoledo turned up to the venue unexpectedly on 4 January 2022, and further whilst she was on leave, Mr Collier advised her that the team needed to spend money due to order shortfalls and had used money from petty cash and when there was no more petty cash, they used money from the safe float and as a result, there was money missing from both the petty cash float and the safe float. As the Applicant was still on leave, she said she advised Mr Checkley of this.
On arrival, the Applicant stated that Mr Avoledo was with Mr Checkley and they said they would all go and fix up the December petty cash and get it reconciled. Mr Avoledo expressed concerns about the petty cash not reconciling. The Applicant stated that Mr Avoledo accused her of theft of petty cash. The Applicant stated that she was accused of using petty cash for personal expenses.
The Applicant stated that she was in shock at the allegations and completely taken by surprise with the owners’ ‘aggressive behaviour’ towards her. She stated she was also very confused as to why this had never been discussed with her before her third last day of employment at the company and why a meeting had not been scheduled to discuss this matter.
The Applicant submitted that she stated that she was not comfortable sitting in a room, outnumbered, being talked at and called names such as “liar”, “criminal”, and accused of stealing. The Applicant evidence was that as she was not otherwise warned nor provided notice of a formal meeting, she was denied the opportunity of a support person to be present with her, at the time when the allegations were made against her.
At the commencement of the meeting on 4 January 2022, the Respondent submitted that the Applicant provided receipts for $411.55, $356.30, $421.10 and $391.85. When looking at the receipts during the meeting, the Respondent stated that they noticed the receipt amounts did not relate back to any of the November/December claims in question and they were older receipts dating back to September 2021.
The Respondent submitted that it was then discovered that these older receipts had been previously submitted to the business and had already been reimbursed through petty cash. It was submitted by the Respondent that these were duplicate receipts the Applicant was resubmitting a second time for reimbursement. When they questioned the Applicant about this, she allegedly said it was an oversight.
The Respondent further submitted that it was further discovered on some occasions, post it notes were being provided with amounts written on them but no receipts from suppliers. The amounts were sometimes large for example $219 at Bunnings and $106.15 at Chemist Warehouse.
When the Applicant was questioned about this, the Respondent said she thought it was acceptable to use post it notes where receipts were missing, and they confirmed to the Applicant that this was neither legal from a tax perspective nor was it a normal business practice. Receipts were required as proof of purchase and to prove the items were business related. The Applicant stated that she was told by Mr Avoledo and Mr Checkley that anything with a handwritten note or any missing receipts was illegible for reconciliation, and she would personally have to pay it back.
The Respondent submitted that they believe the Applicant, as a senior manager with over five years’ experience, would have been fully aware that post it notes are not substitutes for proper receipts. The Respondent submitted that the Applicant was fully aware that receipts were required, and they were required to be uploaded into Xero. The Respondent submitted an email that the Applicant circulated on 25 May 2021 confirming the Petty Cash Process and responsibilities.[7] The Applicant stated that she was told by Mr Checkley this is solely her individual responsibility as Venue Manager and that this is neglect on her behalf and that she would also be held liable, regardless of whether other staff members had used petty cash without providing a printed receipt.
The Respondent submitted that the email of 25 May 2021 makes it is clear that the response that the Applicant has made under Clause 4d of the “Applicant’s Outline of arguments: merits”, is false as she was clearly managing Petty Cash and advised staff accordingly.
The Respondent contended that this initial discussion with the Applicant raised several serious concerns, and it was then agreed in the same meeting to go back through all petty cash claims to 1 July 2021 and match all the receipts to the petty cash reimbursements that had been entered into the accounting system Xero and then taken from cash takings.
The Respondent submitted that it was apparent from this exercise that there were a significant number of missing receipts and post it notes submitted in lieu of proper receipts. The post it notes were being used to balance the total claims back to the amounts taken from petty cash. The post it notes were in the Applicant’s handwriting which she confirmed in the meeting was hers. The Respondent stated that this analysis was conducted during the meeting with the assistance of the Applicant and in her presence.
The Respondent further submitted that it also became apparent during this meeting that not all receipts claimed from petty cash were for business related expenses. There were receipts for personal items and items not used in the business.
When questioning the Applicant regarding these personal items in the meeting, the Respondent submitted that she admitted she had mistakenly claimed personal expenses through the business. The Respondent said that the Applicant claimed a Bunnings receipt dated 9 December 2021 for the amount of $356.30 through the business and was reimbursed by petty cash on 19 December 2021. The Respondent contended that the Applicant admitted the paint on this receipt was used to paint her home. The Respondent submitted that the Applicant purchased these items while she was on annual leave (5-12 December 2021) from her local Bunnings store in Tweed Heads.
However, the Respondent submitted that the Applicant initially claimed (on several occasions during the meeting) that this receipt was business related. It was only when it became very apparent the items on the receipt could not possibly be business related, that she then admitted that the items were a personal expense and further that she admitted that she had reimbursed herself from petty cash.
The Respondent stated that they then discussed a series of other anomalies and non-business-related items submitted for petty cash reimbursement to attempt to understand if this was a one off mistake. However, from this point forward the Applicant allegedly became unwilling to provide explanations for non-business-related receipts.
The Respondent submitted that the Madam Fu claim was also discussed.
During the discussions, the Respondent submitted that the Applicant initially was unwilling to explain this reimbursement. She then said she believed it was for takeaway food for staff training which she brought back to the venue.
The Respondent stated that they felt this was an unlikely explanation because;
· Madam Fu is 13km from the business premises and primarily an eat in, high end restaurant;
· The business premise is located in Burleigh which is surrounded by many takeaway restaurants within a 1-2km radius;
· Typically any food purchased for training is Subway or Pizza, not from a high end Asian Restaurant; and
· The receipt was an EFTPOS receipt and the tax receipt with the detailed list of items was missing.
The Respondent submitted they then ascertained that her explanation was false by:
· Confirming there was no staff training undertaken on this date with Team Leaders and evidenced by the roster and the group chat. This was evidenced by a training group chat around this date demonstrating there was no training on or around this date.
· Questioning the Team Leaders that were rostered on that afternoon who confirmed there was no training and further do not recall any takeaway from Madam Fu. Mr Collier gave evidence consistent with this, saying in his statement that he has no recollection of takeaway being provided on 4 September 2021 by the Applicant.
· The Applicant did not work on the day of the receipt, evidenced by an extract from the Rostering Program which demonstrated the Applicant was off on Friday 3 and Saturday 4 September 2021.
The Respondent submitted that collated during this meeting was a spreadsheet that contained a significant number of receipts that were missing and/or were private or non-business-related totalling $6,328.99 for the 6 month period. The Respondent submitted that this was shown to the Applicant at the time. The Respondent refuted the claims that they did not give the Applicant evidence or time to respond to the allegations, as they provided the Applicant with a spreadsheet of all the missing or non-business-related expenses and were not provided with any plausible response.
The Applicant disagreed with the Respondent’s statement she was given the opportunity
to respond to the accusations provided by the employer for dismissal. The Applicant submitted that she was not given the opportunity to gather materials, evidence to dispute the accusations and prove her innocence while she had access to the company’s emails, accounting system.
The Applicant contended that she has never been notified of any performance issues or misconduct prior to 4 January 2022. The Applicant said these issues only arose following her resignation and her employer being ‘disgruntled’ that she had resigned from her role.
The Applicant’s evidence was that Mr Checkley told her this is not a mistake, that she is engaging in criminal behaviour and that she has stolen the money. The Applicant stated that she was told regardless of what other people do in the business, she is responsible for them and their actions regarding the cash at the Business. The Applicant stated that the Owners advised her she would need to pay the Business $5,900. Further, the Applicant contended that Mr Checkley threatened that she either pay the money or they will go to the police.
In the hearing, it was put to Ms Fenton that if there was a receipt with her details in Xero, it would be safe to assume she entered it. Ms Fenton agreed. Mr Avoledo then put to Ms Fenton that his records indicate that all of the receipts with questionable claims were put into the system by Ms Fenton. Ms Fenton replied ‘sure’.
Mr Avoledo gave oral evidence largely consistent with the written submissions of the Respondent concerning the issues that had been identified and the meeting of 4 January including Ms Fenton’s inability to explain personal expenses claimed through the business. Mr Avoledo said contrary to Ms Fenton’s evidence the receipts Ms Fenton said had not been claimed through Xero had in fact been claimed by her through Xero.
Mr Checkley also gave oral evidence consistent with the written submissions concerning the meeting on 4 January and he and Mr Avoledo by the conclusion of the discussions being satisfied that Ms Fenton had engaged in serious misconduct.
Termination – 4 January 2022
The Respondent contended that they decided to terminate the Applicant employment based on the following:
· admission of claiming personal items of $356.30;
· submitting duplicate receipts which had previously been reimbursed
· The discovery of the second non business related claim for $240;
· use of post-it notes for large amounts in lieu of proper receipts;
· unwillingness to provide adequate explanations for missing receipts;
· unwillingness to explain other receipts which appeared to be personal and non-business related; and
· the discovery that the Applicant was personally managing petty cash and reimbursing herself.
The Respondent submitted that they considered the Applicant’s actions to be wilful and deliberate and to be inconsistent with her employment contract, and that her admission and the subsequent evidence uncovered within the meeting constituted serious misconduct (theft) and a serious breach of her responsibilities as Venue Manager relating to cash handling and management. As a result of these actions, the Respondent submitted that the Business has suffered a financial loss and a negative impact to profit.
The Applicant stated that she requested to leave the meeting and again stated this situation was uncomfortable and asked what would happen from here as she was uncomfortable being at the business for the next two days. The Applicant alleges that Mr Checkley stated she could wrap up and get her belongings and hand keys back. The Applicant stated that she was never told that her employment was terminated. Further, the Applicant submitted that she left the meeting and shortly after, was blocked from all Bounce Inc related access and hours later, received a termination letter to her cleaning company email address. Mr Checkley then sent the termination letter to the correct email address, being her personal email address, the next day, 5 January 2022.
The Respondent submitted that since the Applicant’s termination they have untaken a comprehensive forensic review of petty cash and the review has shown a systematic and calculated pattern of claiming personal expenses through petty cash by the Applicant. As a result of this review they have made a formal Police complaint, and have provided evidence to Police that demonstrates the Applicant claimed personal and non-business related expenses using her personal credit cards and reimbursed herself through petty cash. The evidence before the Commission was that Police are currently undertaking a review of that evidence to determine whether criminal charges will be laid.
The Respondent contended that the evidence brief that they have provided is significant and demonstrates this behaviour is systematic and more than just an irregular error or mistake. As this is part of an ongoing Police Investigation they submitted that they have only provided limited examples of the evidence that has been given to Police.
The Respondent submitted that other examples of misappropriation of Petty Cash included the claiming of diesel fuel when the venue car is Petrol; Claiming and reimbursing personal expenses such as Underwear (Appendix J); Bras (Appendix J); Groceries that are undeniably personal as they were purchased whilst the Applicant was on Annual Leave Camping near Hervey Bay (Appendix K); Personal Grocery Items (Appendix L); Canesten Cream (Appendix M); Ural 4G (Appendix M); Bunjie Top Toe Wash (Appendix M); Brest Pads (Appendix M); Entertainment expenses (Appendix N); Beauty Treatments and Home Improvement Items.
The Applicant disputed the allegations made by the Respondent regarding theft. The Applicant stated that the employer dismissed her without the opportunity to respond to these claims and continued to reference that this is a police matter which is outside the jurisdiction of the Commission, and therefore should not have any bearing on their actions in relation to dismissing her on 4 January 2022.
The Respondent contended that the decision to terminate the Applicant’s employment was the correct decision given the extend of the misappropriation of company money and they believe this decision was warranted given the circumstances.
CONSIDERATION
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the considerations under section 387 of the Act.
(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
A valid reason was described in Selvachandran v Petron Plastics Pty Ltd[8] as one which is “…sound defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based on the operational requirements of the employer’s business.”
Much of Ms Fenton’s complaint about her termination appears to pertain largely to procedural issues which are not relevant to the test under section 387(a). Ms Fenton’s argument in relation to whether there was a valid reason appears to be that others had access to the petty cash and it was not her sole responsibility as the Venue Manager to manage petty cash, she denied engaging in theft and others could have been responsible for the issues in connection with the amounts missing from petty cash.
Ms Fenton claimed the process for petty cash had changed and she understood she could use handwritten notes rather than invoices if necessary. It is apparent from the email of 25 May 2021 that Ms Fenton was aware of certain basic requirements in relation to the management of petty cash.
Ms Fenton could not provide an adequate explanation for the discrepancies in the petty cash at the meeting on 4 January 2022. It appears to have been accepted by Ms Fenton that there were personal items included in the Bunnings receipt that I am satisfied were claimed by Ms Fenton as business expenses. I am also satisfied on the evidence that is more probable than not that Ms Fenton claimed personal expenses from the Madam Fu Restaurant as business expenses. I am also satisfied that Ms Fenton produced as evidence to justify unaccounted for business expenses, receipts that had already previously been claimed as business expenses by her on an earlier occasion.
I am also satisfied on the balance of probability that Ms Fenton claimed as a business expense personal expenses she incurred at the Loose Moose Tap and Grill House.
Whilst Ms Fenton did not concede the personal items purchased at Urangan were claimed as a business expense, she accepted she was in Hervey Bay at a time that coincided with the time the purchase was made on her banking card and I am satisfied these expenses were subsequently claimed as business expenses by Ms Fenton.
I am also satisfied that the process of Ms Fenton using post it notes to justify claimed business expenses for sums of money that common sense would dictate could not reasonably be treated as an acceptable practice, was negligent given the seniority of her position. I reject Ms Fenton’s claim that her practice was consistent with what she had been told about the use of handwritten notes. It is clear the circumstances contemplated where a handwritten note could be acceptable was intended to deal with the exceptional situation of a receipt not being obtained, would be infrequent, would not be for large sums and should not be allowed as a means to abuse the system.
I am also satisfied that it was Ms Fenton that uploaded the relevant receipts into the Xero accounting system that were claimed by her. It remains the case that there are sums of money that are unaccounted for and unexplained.
In consideration of all of the above, I am satisfied that the Respondent had a valid reason for dismissal.
(b) Whether the person was notified of the reason
I am satisfied on the basis of the evidence that Ms Fenton was advised verbally of the reason for her termination at the meeting on 4 January and then again in writing later the same day.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
An employee must be given an opportunity to respond to a reason related to their capacity or conduct, and allowed an opportunity to explain their capacity or conduct throughout the process and before the termination occurs.
Much of Ms Fenton’s case has been put on the basis that she felt she had been ambushed, there was not a proper investigation and she objected to the manner in which the meeting on 4 January 2022 proceeded. I accept Ms Fenton was made aware the day before the meeting that the Respondent’s representatives wanted to meet with her the following day in the context of wanting to reconcile the petty cash. I also accept that on 4 January 2022 the Respondent did not initially intend for the meeting to be a disciplinary meeting, however on the basis of information Ms Fenton had brought to the meeting and her responses to question put to her, and ultimately her reluctance to continue to cooperate with the enquiries of the Respondent, that Mr Checkley and Mr Avoledo came to the conclusion that Ms Fenton had engaged in serious misconduct.
Having had the opportunity to hear the evidence I am satisfied that Ms Fenton was given an opportunity to respond to the reasons related to her dismissal however it would have been referrable had she been afforded a bit more time than she was in order to ensure Ms Fenton could respond in a considered way. It is true that the meeting of 4 January did not start out as a disciplinary meeting.
I am satisfied however that the critical issues were put to her in the course of the meeting on 4 January and they were of such a nature that Ms Fenton should have been expected to be able to respond to the issues in the course of the day or the following day at the latest. I am also satisfied now having had an opportunity to consider all of the evidence that had the Applicant been provided more time it would not have altered the outcome anyway. However given the gravity of the allegation it would have been better had Ms Fenton been given some more time before the final decision was taken to terminate her employment.
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal
This consideration will only be relevant where an employee seeks to have a support person present to assist in discussions in relation to dismissal and the employer refuses.
The Applicant’s evidence was that as she was not otherwise warned nor provided notice of a formal meeting and she was denied the opportunity of a support person to be present with her, at the time when the allegations were made against her. The Applicant stated that she did not ask to have a support person present because she was not aware there was a “meeting” or that she was under investigation. The Applicant’s evidence was that when she stated that she was becoming uncomfortable she was denied support or presence of anyone else.
The Respondent submitted that the employee did not request a support person to be present at any stage during the meeting.
(e) Was the Applicant warned about unsatisfactory performance before dismissal
This is not a relevant consideration in this matter as the reason for dismissal does not relate to performance but relates to conduct.
(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
The Respondent said it its Form F3 Response to the application that it had 40 employees across the categories of full time, part time and casual employment. It is a franchise. Whilst the employer is not a small business the employer it is still of a nature that given its size it may have had some impact on procedures followed in effecting the dismissal.
(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
The Respondent said it did not have a human resources management specialist or expert. The Applicant submitted that the company does have a human resources manager, located at headquarters in Melbourne. It seems from the evidence the Franchisor had resources that may have been able to be called upon by the Respondent for the purposes of human resources advice however this was not entirely clear. It was apparent from the evidence of Mr Fisher that it was common for franchises to deal with matters in relation to termination of employment without referring to the head office. I am satisfied that the Respondent did not have human resources expertise within its own business and this fact would be likely to impact on the procedures followed by the Respondent.
(h) Any other matters that the FWC considers relevant
The Applicant’s resignation would have taken effect on 6 January 2022, if she wasn’t terminated on 4 January 2022.
CONCLUSION
I have made findings in relation to each of the considerations under section 387 of the Act. I have concluded that the Respondent had a valid reason for dismissal and in the particular circumstances of this case whilst the procedures adopted could have afforded the Applicant a bit more time to respond to the allegations, it would not have altered the outcome and to the extent that there may have been any procedural deficiency in the steps followed in the termination of Ms Fenton’s employment, considering all of the matters in section 387 her termination was not harsh, unjust or unreasonable. For that reason, the application is dismissed.
COMMISSIONER
Appearances:
Ms Jacqueline Ashley Fenton on her own behalf.
Mr Glenn Checkley and Mr Ermi Avoledo for the Respondent.
Hearing details:
2022
Brisbane (via Microsoft Teams Video)
8 June
[1] Statement of 5 May 2022, Exhibit 1.
[2] Exhibit 3.
[3] Exhibit 4.
[4] Exhibit 5.
[5] Exhibit 6.
[6] Exhibit 4.
[7] Appendix E to Respondent Submissions dated 18 May 2022.
[8] (1995) 62 IR 371 at 373.
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