Jacqueline Van Wyngaarden v David Hartree Design Associates Pty Ltd T/A Hartree and Associates Architects
[2016] FWC 6117
•29 AUGUST 2016
| [2016] FWC 6117 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jacqueline Van Wyngaarden
v
David Hartree Design Associates Pty Ltd T/A Hartree and Associates Architects
(U2015/16551)
COMMISSIONER JOHNS | MELBOURNE, 29 AUGUST 2016 |
Application for Relief of Unfair Dismissal – Small Business Fair Dismissal Code – belief at dismissal – reasonable grounds.
Introduction
[1] On 7 December 2015 Jacqueline Van Wyngaarden (applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of her dismissal by David Hartree Design Associates Pty Ltd (T/A Hartree and Associates Architects) (H+AA/Employer/respondent).
[2] On 23 December 2015 the respondent filed a response to the unfair dismissal application. It raised a jurisdictional objection to the Commission hearing and determining the matter on the basis that, it submitted, H+AA is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code (Code).
[3] Conciliation was attempted, but the matter remained unresolved. Consequently the matter was listed for hearing.
Permission to be represented
[4] The respondent sought permission to be represented by a solicitor. Accordingly, it was necessary to determine the issue of representation to ensure that the manner in which the hearing was conducted was fair and just. 1
[5] Having considered all the matters put by the respondent’s representative the Commission, as presently constituted, determined that allowing the respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Consequently, David Vilensky from Bowen, Buchbinder Vilensky Lawyers represented the respondent.
The hearing
[6] Because the respondent raised a jurisdictional objection it was called upon to present its case first. The principal of the respondent, David Hartree, had previously filed a Witness Statement (Exhibit R2). At the hearing Mr Hartree gave evidence and was cross-examined.
[7] Having observed Mr Hartree give evidence and be cross-examined I formed the view that he was a credible and truthful witness. His evidence was clear, calm and measured. He exhibited a fairly relaxed, respectful and considerate disposition. He gave answers to questions in a direct, but unembellished manner. Some of his answers were against his own interests and he readily made concessions. 2 His behaviour was consistent with a person who was respectful of the Commission and who genuinely wanted to assist the Commission in its pursuit of the truth.
[8] At the hearing the applicant represented herself. In advance of the hearing Ms Van Wyngaarden had filed a Statement of Evidence (Exhibit A2). At the hearing she gave evidence on her own behalf and was cross-examined.
[9] In stark contrast to Mr Hartree, Ms Van Wyngaarden was an argumentative, evasive and unresponsive witness. 3 Further, the applicant was particularly prone to exaggeration in order to demonstrate a point in her favour or to criticise the evidence of Mr Hartree.4 However, what was most troubling was that the applicant simply denied all of the allegations and complaints against her and raised implausible explanations to justify her position.5 On other occasions, she made explanations for the first time, which she could not corroborate.6 Very few of her many excuses stood up to scrutiny.7
[10] In coming to this decision the Commission, as presently constituted, has had regard to all the evidence led before it and has also had regard to the submissions made by the parties including the:
a) Applicant’s Outline of Argument filed on 1 March 2016 (Exhibit A1);
b) Respondent’s Outline of Submissions dated 15 March 2016 (Exhibit R1);
c) Applicant’s Final Submissions dated 16 June 2016; and
d) Respondent’s Final Submissions dated 16 June 2016.
Background
[11] The following matters were either agreed between the parties or not otherwise substantially contested:
a) David Hartree is an architect, the managing director and sole shareholder of H+AA. 8
b) H+AA is a small architectural practice employing 3 full-time architects (including Mr Hartree). It also employed a model maker and a practice manager who also managed the model shop. 9
c) Since commencing operation in 1993, H+AA has operated a model making business where architectural models are made of certain projects before they are constructed. The model making shop is a unique part of the practice and is a key asset in developing ideas in 3D and complements the design and presentation process. In addition to building models for H+AA projects, the model making business makes models for other architects, developers, government departments and mining companies. 10
d) On 14 February 2011 the applicant commenced employment with H+AA as its practice manager. Her duties included bookkeeping, data entry, banking, payroll, petty-cash, managing staff leave and general office duties. 11
e) The applicant’s Employer-Employee Agreement contains a confidentiality obligation. In entering into the agreement the applicant agreed,
“not to use the confidential information and/or customer records for any purpose other than as directed by the employer during or after his/her employment with the employer”. 12
f) In early 2014 the applicant was appointed an associate director of H+AA. Her role expanded to include management of the model making aspect of the business including overseeing model quotes, client liaison, workshop projects and generally managing the model making business including the model maker, Mr Peter Blythe. 13
g) From 10 February 2015 the applicant and Mr Blythe registered a business together and obtained an Australian Business Number for a business named “Blythe Modelmakers”. 14 Neither the applicant nor Mr Blythe told Mr Hartree about the registration.15
h) On 14 August 2015 “Blythe Modelmakers” changed its name to “Modeldyne”. 16 Neither the applicant nor Mr Blythe told Mr Hartree about Modeldyne.17
i) On 22 September 2015 Mr Blythe’s employment with H+AA ceased after Mr Hartree terminated his employment. 18
j) On 30 September 2015 Mr Hartree told the applicant that “I critically need your statement on incident between PB and SA, please email me this to me later today, this evening.” 19
k) On 1 October 2015 BHP Billiton (Rebecca Boyd) cancelled an order with H+AA “due to the departure of your model maker”. 20 The applicant acknowledged receipt of the cancellation and cc’d Mr Hartree into the same.21
l) At 7:12 pm on 5 October 2015 Mr Hartree issued the applicant with a written warning (Written Warning Letter) which dealt with the following issues: 22
i. the applicant’s attendance at work;
ii. her relocation from the model shop to work upstairs;
iii. an instruction that she provide Mr Hartree with a personal written statement about events which occurred on 15 September 2015 between Mr Blythe and Sammuel Arellano;
iv. completion of the H+AA 14/15 MYOB data file;
v. the applicant’s unauthorised use of a Wilson Parking card at the expense of H+AA; and
vi. a demand for the provision of the petty cash record book and receipts since 1 July 2015.
m) At 7:08 am on 6 October 2015 the applicant sent an email to Mr Hartree, she wrote,
“Thanks your email David-although a written warning was not required and is unnecessarily hostile, I will respond to issues raised in writing today.” 23
n) At 7:34 am on 6 October 2015 Mr Hartree sent an email to the applicant, he wrote
“OK thank you, please respond this a.m. and be available for the meeting.” 24
o) At around 11.30 am on 6 October 2015 Mr Hartree met with the applicant to talk about the contents of the Written Warning Letter. 25
p) At 2:58 pm on 6 October 2015 the applicant sent an email to Mr Hartree, she wrote,
“Confirming that as discussed I am now leaving for the day, you will now receive my written response to the letter of warning tomorrow.” 26
q) At 8:02 am on 7 October 2015 the applicant sent an email to Mr Hartree, she wrote, 27
“Further to our meeting yesterday, I reiterate that the issues we discussed yesterday did not require a Written Warning from you.
Meeting to discuss in person afforded me the opportunity to explain my position, clarify information and commit to resolving any issues, something I was not given prior to receiving your Written Warning.
Particularly in consideration of recent events involving Peter Blythe and yourself, the issue of your Written Warning was hostile and threatening.”
r) On 9 October 2015 the applicant commenced a period of leave in order to undergo surgery on her shoulder. 28
s) Between 12 October 2015 and 23 November 2015 the applicant was on approved sick leave in order to undergo and recover from surgery. 29
t) While the applicant was on leave Mr Hartree accessed the applicant’s email. 30 He also arranged for his sister to review and provide him with information about H+AA’s petty cash records.31
u) On 22 October 2015 the Coordinator of Cultural Development at the City of Kwinana, Pascal Veyradier, sent an email to the applicant, he wrote,
“Hi Jacqui,
I hope you are well … Despite the long silence, as I told you, I never forgot our idea, to be under my belt for the 1st opportunity coming up. I believe that one may be there, with an MP driving a project involving few councils, including us. I wanted to present his office with the model you developed, but I cannot find any PDF which could be emailed. Would you be able to send me such document when you can?”
Ms Van Wyngaarden did not inform Mr Hartree about this email. 32
v) On 23 October 2015 the applicant sent an email to Rebecca Boyd at BHP Billiton, she wrote,
“Hi Rebecca,
I am out of hospital and on the mend! :)
Will call you Monday to regarding the AGV models.”
Ms Van Wyngaarden did not inform Mr Hartree about this email or about the subsequent telephone discussion. 33
w) On 6 November 2015 Mr Hartree sent an email to the applicant asking her to confirm if she was “available to come into H+AA over the next 2 weeks to perform light duties, or if [she was] able to complete the following administrative items from home.” He then provided a list. 34
x) On 13 November 2015 Mr Hartree sent an email to the applicant, he wrote,
“Another week passes, I have to say I am disappointed that you cannot make the time to pick up the phone and have a discussion with me, or send me an email in response to the [6 November 2015] email …, there are other administrative items that require attention, I would appreciate your prompt response please. 35”
y) On 16 November 2015 the applicant sent an email to herself from her Hotmail account to her work account to which she attached a Modeldyne business information sheet. It recorded that the following details: 36
● Vendor ABN;
● Address;
● Phone number for orders and payments (being the applicant’s phone number);
● Email for remittance (being [email protected]);
● Description of business (being architectural model making).
z) At 4.15 pm on 18 November 2015 Mr Hartree terminated the applicant’s employment. 37
[12] The applicant submits she was unfairly dismissed. She says that “as a consequence of supporting [Mr Blythe (following the termination of his employment on 22 September 2015)], on 18 November 2015 [her] employment was terminated by email without notice, for false serious misconduct reasons and whilst [she] was on legitimate sick leave” 38. In her Form F2 Application for an unfair dismissal remedy the applicant stated that she wanted to be reinstated and or compensated.
[13] Had Mr Hartree terminated the applicant’s employment because she was a supporter of Mr Blythe that would not have been be a valid reason for the termination of her employment. If Mr Hartree had terminated the applicant’s employment because she was exercising a workplace right (in that she might participate in proceedings as a witness for Mr Blythe in his unfair dismissal application) that would be an unlawful basis to terminate her employment in breach of the General Protections provisions in the FW Act. However, for the reasons below I am not satisfied that Mr Hartree had an improper motive in terminating the employment of the applicant.
[14] Mr Hartree was heavily reliant upon the applicant as his practice manager. 39 He reposed in her the highest level of trust and confidence that he could.40 He promoted her to Associate Director.41 Ms Van Wyngaarden had access to all of Mr Hartree’s banking and financial records. He was heavily dependent on her. It is even fair to say she knew more about the administrative day-to-day operations of H+AA than did Mr Hartree. In this context and despite knowing about the close relationship between the applicant and Mr Blythe, Mr Hartree wanted to continue to employ Ms Van Wyngaarden after he had terminated the employment of Mr Blythe. In fact, he did so for a further two months. Nothing in the chronology of the events that followed the termination of Mr Blythe’s employment supports a finding that Mr Hartree was out to get Ms Van Wyngaarden because of her support for Mr Blythe.
[15] However, that is not to say that the close supportive relationship between the applicant and Mr Blythe was irrelevant in facts of this matter. It is very clear that the applicant felt and continues to feel a deep sense of loyalty to Mr Blythe and he felt and feels one towards her 42. There is nothing wrong with that. However, what is also clear is that when her friendship with Mr Blythe put her in conflict, or a potential conflict of interest situation, with her employer, the applicant was blinded by her friendship with Mr Blythe and failed to always prefer the interests of H+AA. As will be explained below the applicant was not open and candid with Mr Hartree about the establishment of Modeldyne, or about her dealings with BHP Billiton and the City of Kwinana. The applicant denies any wrongdoing, however, by her own acts she created a situation where Mr Hartree had a legitimate right to question her loyalty to him and H+AA. To the extent that Ms Van Wyngaarden’s lack of candour added to the reasons advanced by Mr Hartree for deciding to terminate the applicant’s employment, she was the architect of her own demise.
Protection from Unfair Dismissal
[16] An order for reinstatement or compensation may only be issued where the Commission is satisfied the applicant was protected from unfair dismissal at the time of the dismissal.
[17] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[18] There is no dispute, and the Commission, as presently constituted, is satisfied, the applicant has completed the minimum employment period and earned less than the high income threshold. 43 Consequently, the Commission, as presently constituted, is satisfied the applicant was protected from unfair dismissal.
[19] I will now consider if the dismissal of the applicant by the respondent was unfair within the meaning of the FW Act.
Was the dismissal unfair?
[20] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
Was the applicant dismissed?
[21] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. In the present matter the respondent concedes that it dismissed the applicant. 44
[22] Consequently, the Commission, as presently constituted, finds that the applicant was terminated on the employer’s initiative.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[23] A person has not been unfairly dismissed where the dismissal is consistent with the Code. It is useful to set out s.388(2) of the FW Act:
“388 The Small Business Fair Dismissal Code...
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
[24] To be satisfied that a dismissal was consistent with the Code the respondent must be a “small business employer” for the purposes of the FW Act. In the present matter it is agreed that H+AA is a small business.
[25] The Commission, as presently constituted, is satisfied that at the time of giving notice, the respondent employed fewer than 15 employees.
[26] Consequently, the Commission, as presently constituted, finds the respondent was a small business employer within the meaning of section 23 of the FW Act at the time of giving notice.
[27] The Small Business Fair Dismissal Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009:
“Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
….
[28] In short the respondent submits the dismissal of the applicant complied with the Code because:
a) the basis of the dismissal of the applicant was serious misconduct and the respondent was entitled to dismiss the applicant without notice for serious misconduct. 45
b) the following conduct and behaviour of the applicant compromised serious misconduct:
● The Applicant's failure to comply with the instructions contained in the Warning Letter…;
● The Applicant's unauthorised obtaining and use of a Wilson Parking card in respect of which more than $4,000 of the Respondent's money (petty cash controlled by the Applicant) was spent on her parking which she was not entitled to;
● The unauthorised and unlawful use of petty cash of the Respondent to fund the Applicant's personal lifestyle and numerous non work related items for her and Mr Blythe;
● The Applicant’s refusal to return the petty cash records from 1 July 2015 onwards.
● The setting up of a model making business with Mr Blythe and the conversion of a BHP contract which the Respondent had been awarded to the new business of the Applicant and Mr Blythe" 46
[29] In short the applicant submits the dismissal did not comply with the Code because:
A. Summary Dismissal
● The employer summarily dismissed the Applicant for false reasons and did not adequately investigate or raise these issues with the employee prior to issue of a termination letter.
● There were no reasonable grounds for the employer to believe that the Applicant was guilty of serious misconduct" because the employer did not conduct appropriate investigations or inquiry into the reasons stated in the Termination Letter. The employer formulated false 'suspicions' about the Applicant's conduct.
B. Other Dismissal
● The employer did not believe that any alleged misconduct stated in the termination Letter was serious enough to report to the police.
● The employer did not advise in a 'Written Warning' letter 5 October 2015 that there was any risk that the Applicant's employment would be terminated.
● The employer did not allow reasonable opportunity for any issues raised in the 'Written Warning' letter 5 October 2015 to be rectified.
● The employer terminated the Applicant's employment by email whilst on legitimate Sick Leave.
● The employer did not issue any further warnings for what it believed to be 'other' misconduct.
● The employer did not believe that any issues advised in the "Written Warning' letter constituted 'serious misconduct' since the Respondent issued a Written Warning not a Summary Dismissal.
● The employer did not believe that the Applicant repudiated the contract of service or its essential conditions due to any conduct issue stated in the Written Warning letter because the employer continued to entrust the Applicant with unchanged significant financial duties and responsibilities up until November 2015.
C. Procedural Matters
● The Respondent did not have any discussions with the Applicant that the Applicant’s employment termination was possible”. 47
[30] A Full Bench of Fair Work Australia considered the summary dismissal aspect of the Code in John Pinawin T/A RoseVi.Hair.Face.Body v Domingo 48,
[27] Deputy President Bartel in Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe 49 said:
“[60] At the outset it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of FWA is not to determine on the evidence whether there was a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the applicant did or did not steal the money. The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.”
[28] Senior Deputy President O’Callaghan in Harley v Rosecrest Asset Pty Ltd T/A Can Do International 50 said:
“[8] For an employer to believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer to establish that the employer did in fact hold the belief that as a matter of fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal. This is to be contrasted to the provisions of s.387(a) where FWA, in determining whether there was a valid reason for the dismissal, must find whether the conduct in fact occurred.
[9] Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquires or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.”
[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.
[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.
[31] What is clear from the authorities is that the Commission does not have to make a finding, on the evidence, whether the conduct occurred. 51 The Commission needs to find whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal.52 It is not necessary for the Commission to determine whether the employer was correct in the belief that it held.53
[32] It might be said that the summary dismissal test in the Code presents a low bar for employers to hurdle. This was explained to Ms Van Wyngaarden on many occasions. 54 Notwithstanding, the applicant spent much of the time attempting to establish that she did not engage in the conduct alleged against her by Mr Hartree. Her efforts in this regard unnecessarily led to the protracted nature of the proceedings.
[33] For an employer to believe on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish that they did in fact hold the belief that:
● the conduct was by the employee;
● the conduct was serious; and
● the conduct justified immediate dismissal. 55
[34] The employer must establish that they had reasonable grounds to hold the belief, which could be established by providing evidence of inquiries or investigations the employer undertook to establish their belief. 56
[35] In terms of establishing the employer’s belief, in Steri-Flow Filtration (Aust) Pty Ltd v Erskine the Full Bench held that,
“In our view the letter of termination … provides the best evidence of [the employer’s] belief at the time of … dismissal and the grounds for that belief, as the letter is contemporaneous with the dismissal. 57”
[36] The termination of the applicant’s employment was effected on 18 November 2015. The letter of termination emailed to the applicant read as follows:
“Jacqui,
A thorough review and investigation of your Outlook communications over the past 2 years, as well as other information obtained has revealed material breaches of fiduciary duty and deception by you on a grand scale.
You would know what I am referring to, I don't intend at this time or in this email to itemise the particulars. However be very clear that H+AA reserve the right to disclose the details and particulars of your unlawful conduct in the appropriate forum if or when it becomes necessary to do so.
It is now self-evident that your “sick leave” is a complete fabrication. Another deception. You have no such entitlement. You have totally ignored attending to urgent H+AA administrative matters and my request for you to consider light duties at the office or from home. However it is interesting to note that your alleged “sick leave” has not prevented you from working on establishing your own model making partnership with Peter Blythe (Modeldyne – ABN registered in February 2015). Even worse, you contacted and had meetings with H+AA client, diverted model making work previously quoted by and commissioned to H+AA - to your new model making venture. All while pretending to be on “sick leave”.
It would be difficult to imagine better examples of fundamental and material breaches of fiduciary duties which you owed to H+AA, not only as an employee but importantly as a practice manager, model making manager and critically as an Associate Director of this practice.
As a consequence of the matters referred to above please note that your employment agreement with H+AA is hereby terminated with immediate effect and should be regarded as being at an end forthwith.”
[37] Also relevant in the thinking of Mr Hartree was what he considered to be the applicant’s failure to comply with requests made by him the Written Warning Letter.
[38] Having regard to:
a) the authorities referred to above; and
b) the contents of the Written Warning Letter and Letter of Termination,
the Commission invited each party to make specific submissions about the same. On 23 May 2016 the Commission issued Directions for the parties to make submissions in answer to the following questions:
1) Failure to comply with warning letter:
a) On the day of dismissal, 18 November 2015, did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly failed to comply with the warning letter?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
b) Did Mr Hartree hold the above belief on reasonable grounds?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
c) Did Mr Hartree undertake an inquiry or investigation to establish his belief?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
1) Unauthorised use of Wilson Parking Card:
a) On the day of dismissal did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly made unauthorised use of a Wilson Parking Card?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
b) Did Mr Hartree hold the above belief on reasonable grounds?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
c) Did Mr Hartree undertake an inquiry or investigation to establish his belief?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
1) Unauthorised use of petty cash:
a) On the day of dismissal did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly made unauthorised use of petty cash?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
b) Did Mr Hartree hold the above belief on reasonable grounds?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
c) Did Mr Hartree undertake an inquiry or investigation to establish his belief?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
1) Refusal to return petty cash records:
a) On the day of dismissal did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly refused to return petty cash records (dated from 1 July 2015)?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
b) Did Mr Hartree hold the above belief on reasonable grounds?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
c) Did Mr Hartree undertake an inquiry or investigation to establish his belief?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
1) Setting up a competing modelling business:
a) On the day of dismissal did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly set up a competing modelling business?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
b) Did Mr Hartree hold the above belief on reasonable grounds?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
c) Did Mr Hartree undertake an inquiry or investigation to establish his belief?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
1) Diversion of BHP Business:
a) On the day of dismissal did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly diverted BHP business away from the respondent?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
b) Did Mr Hartree hold the above belief on reasonable grounds?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
c) Did Mr Hartree undertake an inquiry or investigation to establish his belief?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
1) Diversion of Kwinana opportunity:
a) On the day of dismissal did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly diverted a Kwinana opportunity away from the respondent?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
b) Did Mr Hartree hold the above belief on reasonable grounds?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
c) Did Mr Hartree undertake an inquiry or investigation to establish his belief?
i) If “yes”, what is the evidence of this?
ii) If “no”, why not?
[39] On 16 June 2016 the parties complied with the Directions. They submitted as follows:
Failure to comply with warning letter
[40] In answer to the question “on the day of dismissal, 18 November 2015, did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly failed to comply with the warning letter?”,
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mrs Van Wyngaarden had stated to Mr Hartree at the meeting to discuss the written warning letter on 6 October 2015 that she would comply with the written warning.
B. At no time did Mrs van Wyngaarden ever state to Mr Hartree that she would not comply with the written warning letter.
C. Mr Hartree was advised by Mrs van Wyngaarden that she did not consider that a written warning was necessary but that she would address any issues raised in the written warning.
D. Items 2 & part of 4 had been completed prior to commencement of Sick Leave.
E. At the warning letter meeting on 6 October 2015, Items 1, 3 and 5 were discussed and it was agreed that no further action was required.
F. Mrs van Wyngaarden commenced Sick leave on Friday 9 October 2015 only 3 business days after receiving the warning letter.
G. Mr Hartree had given no deadline for completion of any items except for Item 2.
H. The End of Year information item that was prepared for the accountant Mr Hartree was aware that Mrs van Wyngaarden liaised with the accountant by email on Saturday 10 Oct 2015 and again on 4 November 2015 in her own time to ensure that this item could progress in her absence. A3, DOC 34.
I. Mr Hartree acknowledged that Mrs van Wyngaarden had attended the office on several occasions whilst on sick leave to assist him. A3, DOC 51.
J. On 16 November 2015 Mr Hartree confirmed to the accountant that Mrs van Wyngaarden was on Sick Leave and that she would action items upon her return. Mr Hartree had the expectation that Mrs van Wyngaarden would complete work items when she returned from Sick Leave.
K. Mrs van Wyngaarden did not have a history of any non-compliance.
L. Mr Hartree issued a warning letter not a termination letter.
M. Mr Hartree did not respond to the email sent to him by Mrs van Wyngaarden on 6 October 2015.
N. Mr Hartree did not issue any subsequent warning letter stating that he believed that Mrs Van Wyngaarden had not complied with the warning letter.
O. Mr Hartree also did not advise Mrs van Wyngaarden that if any items were not completed that she would be at risk of having her employment terminated.
P. It was known to Mrs van Wyngaarden that Mr Hartree had not issued warning letters or terminated other employees for unacceptable conduct including serious misconduct.
Q. Mr Hartree did not believe that any conduct by Mrs van Wyngaarden was serious enough to report to the police prior to the termination of Mrs van Wyngaarden.
b) the respondent
i. answered “yes”
ii. submitted:
A. The warning letter was dated Monday 5 October 2015 and was sent to the Applicant by the Respondent by email at 7.12pm on that day. The warning letter is Document 1 in the Schedule of Documents attached to the Employer Response to Unfair Dismissal Application (Form F3 in these proceedings).
B. Evidence of the delivery of the warning letter by the Respondent to the Applicant is contained in paragraph 24 of the Witness Statement of David James Hartree ("Mr Hartree") dated 15 March 2016 ("Mr Hartree’s Witness Statement").
C. The warning letter outlined 5 separate matters in respect of which the Respondent sought responses from the Applicant. It is not in dispute that the Applicant did comply with items 2 and 4 of the warning letter. The items in the warning letter to which the Applicant did not respond were set out in paragraph 25 of Mr Hartree's Witness Statement which state as follows:
“25. While the Applicant did comply with some of the instructions contained in the Warning Letter, despite her agreement to do so she did not comply with a number of my instructions contained in the Warning Letter. In particular:
(a) The Applicant did not provide an explanation or any documents regarding her absence from full time duties in the period 22 September 2015 to 5 October 2015 referred to in paragraph 20 hereof;
(b) The Applicant did not provide the personal written statement regarding the altercation on 15 September 2015 between Mr Blythe and Mr Arrellano;
(c) The Applicant did not provide her statement on the meeting on 17 September 2015 with Mr Blythe which had resulted in Mr Blythe resigning;
(d) The Applicant did not provide an explanation regarding the unauthorised use of the parking card at the expense of the Respondent;
(e) The Applicant did not provide the petty cash record book and receipts of the Respondent since 1 July 2015 which was in her possession."D. Further evidence of the Applicant's failure to comply with the items in the warning letter are contained in the following paragraphs of the transcript of the hearing on 15 April2016 (PN288, PN289, PN290, PN291, PN292, PN293, PN294);
E. Not only did the Applicant fail to comply with 3 of the 5 items in the warning letter, but she failed to provide a written response to the warning letter notwithstanding her undertaking to do so. See paragraphs 26, 27 and 28 of Mr Hartree's Witness Statement which state as follows:
"26. I refer to document 29 in the Applicant's Document List being an email which the Applicant sent to me on 6 October 2015 in which she stated, "I will respond to your issues raised in writing today".
27. A meeting took place between the Applicant and myself on 6 October 2015, the day after she was handed the Warning Letter. The Applicant attempted to respond to the matters raised in the Warning Letter. I was not satisfied with her explanations and insisted upon the written response she had offered to provide earlier in the day. Following the meeting I had with the Applicant on 6 October 2015 to discuss the Warning Letter, the Applicant sent me an email at 12.58pm in which she said "confirming that as discussed I am now leaving for the day, you will now receive m
written response to the letter of warning tomorrow." This email is Document 1 in the Respondent's Supplementary Schedule of Documents provided on behalf of the Respondent in these proceedings simultaneously with this Witness Statement.28. Notwithstanding her written undertaking to provide a written response to the Warning Letter by 7 October 2015 the Applicant did not do so."
F. Further evidence of the Applicant's failure to provide the written response to the warning letter requested by the Respondent are contained in the following paragraphs of the Transcript on 15 April 2016 (PN295, PN326 to PN335 inclusive, PN807, PN823, PN841, PN859).
G. Reference is specifically made to PN879 where the Commissioner says the following to the Applicant who is being cross examined by Counsel for the Respondent:
"THE COMMISSIONER: Yes, and the day after she sends this response, and so in her mind this is her response. I might agree with Mr Hartree that it's inadequate and, you know, it seems bewildering to me that if I received a warning letter like that of 5 October that I wouldn't respond in writing in chapter and verse to say why every single point of it was wrong."
H. Reference is also made to the following additional paragraphs of the Transcript: of 15 April2016 (PN882, PN883, PN885, PN894, PN907, PN909).
I. The untested evidence was overwhelmingly in favour of the Respondent's position that the Applicant complied only with items 2 and 4 of the 5 items in the warning letter. Further, the untested evidence fully supported the fact that despite the Respondent's request for a response to the warning letter, and notwithstanding the J.
Applicant's stating to Mr Hartree in writing that she would provide a written response, she failed to do so.K. The Applicant's suggestion that she formed the view following a brief meeting with Mr Hartree on 6 October 2015 (the day after she received the warning letter) that she was somehow relieved of any obligation to provide her responses to the warning letter is implausible, lacks credibility and should not be believed.
L. It is beyond dispute that:
(a) The Applicant did not respond to items 1, 3 and 5 of the warning letter;
(b) The Applicant failed and or refused to provide a written response to the warning letter despite a request from Mr Hartree that she does so and despite the Applicant indicating she would do so.
M. The evidence Mr Hartree was unchallenged in cross-examination on each of the matters referred to in paragraphs 1 to 11 above and confirms the belief held by Mr Hartree.
[41] In answering the question “Did Mr Hartree hold the above belief on reasonable grounds?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mr Hartree was aware that items had been completed by Mrs van Wyngaarden.
B. Mrs van Wyngaarden continued to attend the office on Tuesday 6 October, Wednesday and Thursday before commencing Sick Leave on the Friday. Even though Mr Hartree also attended the office on some of these days he made no further enquiry about any items with Mrs van Wyngaarden.
C. Mrs van Wyngaarden had always demonstrated to Mr Hartree her commitment and loyalty in the past. She had been rewarded with promotions and remunerative increases.
D. Mrs van Wyngaarden was on Sick Leave.
b) the respondent
i. answered “yes”
ii. submitted:
A. Paragraph 30 of Mr Hartree's Witness Statement which states as follows:
"30. While the Applicant was on leave I was able to access her email records as well as investigate further the Respondent's petty cash records from those available. My investigations revealed that without authority the Applicant was purchasing personal items for herself and Mr Blythe and reimbursing herself and Mr Blythe through petty cash. The items that were being purchased had nothing whatsoever to do with the business of the Respondent and were for breakfasts, lunches and dinners, coffee, groceries, parking, fuel and alcohol. An investigation of the accounts of H+AA and files indicated dishonesty and misappropriation of funds of H+AA by the Applicant. The documents in support of these petty cash payments are Documents in the Respondent's Supplementary Schedule of Documents."
B. The belief of Mr Hartree is well summarized in the following passage from PN807 of the Transcript on 15 April 2016 in a question put to the Applicant by the Commissioner as follows:
"THE COMMISSIONER: Sorry, now I need to interrupt, I'm sorry. I think what Mr Hartree says is he had concerns about your performance and he issued you with a warning letter on 5 October. In his mind he directed you to respond to those things. In part you complied, in part you did not comply; in particular you didn't provide the details about petty cash. You then went on sick leave, that caused him to make more inquiries, and by the time the decision was made to terminate you on 18 November he had formed the view that because you had not attended to some of the things in the warning letter, in addition to his discoveries around petty cash, and then in addition to his discovery around the other business, he formed the view at that time that you had engaged in serious misconduct and terminated you. His evidence is not that he formed that view when he gave you the warning letter."
C. In summary, it cannot be in dispute that on 18 November 2015 there were reasonable grounds for Mr Hartree to hold the belief that the Applicant's conduct was sufficiently serious to justify immediate dismissal on the basis of her failure to comply with the warning letter.
[42] In answering the question “Did Mr Hartree undertake an inquiry or investigation to establish his belief?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. No inquiry or investigation was made by Mr Hartree to establish any belief that Mrs van Wyngaarden had failed to comply with the warning letter and that it was serious enough to justify immediate dismissal.
B. Mr Hartree did not in any way raise the written warning again with Mrs van Wyngaarden prior to her commencement of Sick Leave on 9 October 2015.
C. Mrs van Wyngaarden attended the H+AA office whilst on Sick Leave to assist Mr Hartree on 3 November 2015. Mr Hartree did not discuss anything pertaining to the written warning letter on this day.
D. Mr Hartree did not discuss the written warning again with Mrs van Wyngaarden until after her termination when he emailed a letter titled ‘Entitlements’ on 2 December 2015.
b) the respondent
i. answered “yes”
ii. submitted:
A. Paragraph 30 of Mr Hartree's Witness Statement referred to above.
B. Paragraph 34 of Mr Hartree's Witness Statement which states as follow:
"34. By way of a further example of unauthorised petty cash purchases by the Applicant, alcohol for H+AA staff consumption (restricted generally to Friday afternoons) was only ever purchased in bulk from a City liquor store, and usually delivered by the store to our office in Queen Street, Perth. However, petty cash receipts show numerous alcohol purchases outside of the Perth CBD and in the very same neighbourhood as the Applicant's residence (i.e.: purchases at BWS Kingsway and Coles Woodvale). See Document 3 in the Respondent's Supplementary Schedule of Documents. On
1 November 2014, the Applicant purchased 6 bottles of Corona beer and 2 bottles of wine from Coles in Woodvale - on a Saturday afternoon, and reimbursed herself through H+AA petty cash."
C. Paragraph 41 of Mr Hartree's Witness Statement which states as follows as follows:
"41. Wilsons Parking prepares an access schedule for each card on issue stating entry and exit times which is shown on each invoice.
The Applicant did not provide this access schedule to the Respondent for card #1349. I sourced this information from Wilsons Parking accounts department directly. See Document 5 in the Respondent's Supplementary Schedule of Documents."
D. The evidence overwhelmingly confirms that Mr Hartree did make proper inquiries to establish his belief as at 18 November 2015.
Consideration and finding in relation to the alleged failure to comply with warning letter
[43] It is difficult to understand how the applicant can make a submission about whether Mr Hartree held a particular belief at the time he made the decision to terminate her employment. Only he can give evidence about what was his belief and seek to corroborate it. Ms Van Wyngaarden’s submission in this regard is really as submission that “Mr Hartree should not have held the belief”, for the reasons she asserts. But that is not the test under the Code. The test involves asking, did he hold the belief, did he hold it on reasonable grounds and did he make some inquiry or investigation?
[44] The factual situation is uncontested up to a point. Twice on 6 October 2015 the applicant wrote to Mr Hartree and indicated that she would respond in writing to the Written Warning Letter. 58 It is clear from the evidence of Mr Hartree that he also understood that to be the case when he left the meeting with the applicant on 6 October 2015.59 Ms Van Wyngaarden’s evidence that, at the meeting on 6 October 2015, it was agreed that no further action was required is not to be believed.60
[45] The only response provided to Mr Hartree was the email sent by the applicant at 8.02 am on 7 October 2015. 61 The attempt by Ms Van Wyngaarden to characterise that email as a compliance with the Written Warning Letter is incredulous. Ms Van Wyndgaarden well understood what was expected of her and she knew, at that time, that she had not:
● provided Mr Hartree with a written statement regarding the altercation on 15 September 2015;
● explained the Wilson Parking expense to the satisfaction of Mr Hartree; and
● given Mr Hartree the petty cash record book.
[46] Also the fact that the applicant was about to commence a period of sick leave is no excuse for failing to comply with the Written Warning Letter.
[47] Having regard to all that has been put in relation to this issue I am satisfied that on 18 November 2015:
a) Mr Hartree held the belief that the applicant had failed to comply with the Written Warning Letter 62; and that
b) he held that belief on reasonable grounds.
[48] It is indisputable that the applicant had not:
● provided Mr Hartree with a written statement regarding the altercation on 15 September 2015;
● explained the Wilson Parking expense to the satisfaction of Mr Hartree; and
● given Mr Hartree the petty cash record book,
[49] Accordingly, it was unnecessary for Mr Hartree to conduct any further inquiry or investigation in relation to the matter.
[50] Consequently, in relation to the applicant’s non-compliance with the Written Warning Letter I am satisfied that the respondent complied with the Code.
Unauthorised use of Wilson Parking Card
[51] In answer to the question “On the day of dismissal did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly made unauthorised use of a Wilson Parking Card?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mr Hartree did not hold that belief on the day he issued the warning letter regarding the parking card since he issued a warning letter not a termination letter.
B. No new or further information regarding parking became apparent.
C. Mrs van Wyngaarden discussed the Wilson parking card with Mr Hartree on 6 October 2015 and Mr Hartree was satisfied with her response.
D. Mr Hartree did not mention any concerns regarding the parking card ever again with Mrs van Wyngaarden again prior to termination.
b) the respondent
i. answered “yes”
ii. submitted:
A. There was no evidence to suggest that Ms Van Wyngaarden was entitled to the use of a Wilson Parking Card at the expense of the Respondent. Indeed, the evidence is to the contrary. That is, the evidence was overwhelmingly in support of the Respondent's contention that the Applicant had no right or authority whatsoever to use a Wilson Parking Card at the expense of the Respondent. More to the point, in December 2014 the Applicant had requested the use of a Wilson Parking Card from the Respondent but such request had been expressly refused and unequivocally refused.
B. See paragraph 22 of Mr Hartree's Witness Statement which states as follows:
"22 I had also noticed expenses incurred with Wilson Parking in relation to a parking card which had been issued to the Applicant upon her specific request without my knowledge or consent. Since May 2015 more than $4,000 had been spent by the Respondent for the Applicant’s parking without my knowledge or consent. I consider this to be a serious breach of trust and serious misconduct on the part of the Applicant."
C. Paragraphs 37 to 42 of Mr Hartree's Witness Statement state as follows:
"37. On 18 December 2014, during an email exchange regarding Christmas bonuses, the Applicant requested by email that she have issued to her, her own parking access card for work related parking, a pay increase and a significant bonus. The request was refused by me although I did agree to the Christmas bonus only.
38. As it turns out, prior to requesting a parking access card as part of her package, on 28 May 2014 without authority or discussion with myself, the Applicant emailed Wilson's Parking administration to request a replacement card. The Applicant was aware that I had 2 access cards in my possession however I only ever used 1 of them. See Document 4 in the Respondent's Supplementary Schedule of Documents.
39. Without the knowledge or consent of the Respondent Wilsons Parking issued to the Applicant card # 1349 charging H+AA account.
40. Without the Respondent's authority to do so since July 2015 the Applicant had from July 2015 been using card #1349 on a daily basis, regularly from 6:30am to 7:30pm, often 6 days a week. During this period the Applicant would typically require a car for work related meetings on 1 day per week.
41. Wilsons Parking prepares an access schedule for each card on issue stating entry and exit times which is shown on each invoice. The Applicant did not provide this access schedule to the Respondent for card #1349. I sourced this information from Wilsons Parking accounts department directly. See Document 5 in the Respondent's Supplementary Schedule of Documents.
42. The Applicant caused $3,251.00 of the Respondent's money to be used to pay for a parking card that she was not authorised to use and had in fact obtained without the consent of the Respondent in the knowledge that she knew the Respondent would not provide that consent."
D. Further evidence of the unauthorised use by the Applicant of a Wilson Parking Card is items 4 and 5 of the Respondent's Supplementary Schedule of Documents being Exhibit R4. These comprise mainly invoices from Wilson Parking to the Respondent relating to staff card 01349 which was the card utilized by the Applicant without the authority or permission of the Respondent. The attempts by Applicant to explain her use of the parking card at the expense of the Respondent completely lacked credibility and cannot be believed. To compound the problem the Applicant also paid the invoices rendered by Wilson Parking presuming that Mr Hartree would not notice such payments.
E. Reference is made to the following paragraphs from the Transcript of the proceedings on 5 May 2016 (PN1431, PN1435, PN1437, PN1439, PN1474, PN1486, PN1490 where the Commissioner asks the Applicant):
"THE COMMISSIONER: Where is that? Where is that in the evidence? Where is that in the evidence? You're just making stuff up."
(PN1496, PN1541, PN1510, PN1511, PN1513, PN1514, PN1515, PN1517, PN1519)
F. Further evidence of the complete lack of credibility of the Applicant in her attempts to explain her unauthorised use of the Wilson Parking Card are contained in following paragraphs in the Transcript of the hearing on 19 May 2016 (PN2650, PN2651, PN2652, PN2653, PN2654, PN2655, PN2656).
G. The evidence overwhelmingly confirms the belief held by Mr Hartree regarding the Applicant's unauthorised use of the Wilson Parking Card.
[52] In answer to the question “Did Mr Hartree hold the belief on reasonable grounds?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mr Hartree did not hold the above belief on reasonable grounds because after discussing parking concerns with Mrs van Wyngaarden on 6 October 2015 he did not discuss them again.
B. At the meeting to discuss the warning letter Mr Hartree stated to Mrs van Wyngaarden parking was not going to be an on-going issue because there was no model maker, no model shop and no requirement to pick up materials or make deliveries for the time being.
b) the respondent:
i. answered “yes”;
ii. submitted:
A. After the Applicant went on sick leave for shoulder surgery on 9 October 2015 and the date of her termination on 18 November 2015 Mr Hartree requested from Wilson Parking information about the card which the Applicant had sought without authority from Wilson Parking and was using, as well as the tax invoices showing details of these. See documents 4 and 5 of the Respondent's Supplementary Schedule of Documents which were not disputed by the Applicant.
B. Reference is made to PN1541 as follows:
THE COMMISSIONER: Ms Van Wyngaarden, you’ve had every opportunity to go through these Wilson parking statements. You’ve had every opportunity to put your own evidence in to explain what you were doing on every single one of those days to make the case that it was work related, and for reasons unbeknown to me you've chosen not to do that, and if you had done that you could have put all those allegations to the witness and seen whether or not he agreed with your proposition. You have not done that.
C. Reference is made to PN1494 as follows:
THE COMMISSIONER: All I have to decide is what was in Mr Hartree's mind. What was in Mr Hartree's mind was that you were using the car park in breach of the policy. What evidence was before him? Here is the evidence. On 29 May your car was there the whole day.
D. Reference is made to PN1496 as follows:
THE COMMISSIONER: On 31 May your car was there the whole day. This is the evidence before him on - not yours - so this is the evidence before him and he forms the view that that is a misuse. So unless you've got some evidence to establish that he knew that that's what you were doing or you told him that that's what you were doing, then how are you going to disrupt what was in his mind? His mind is, “Look at this; I didn't give her permission to park there all day. There's $38 that I've paid that I didn’t have to pay for."
E. Reference is made to PN1503 as follows:
THE COMMISSIONER: What was in your mind at the time, Ms Van Wyngaarden, is irrelevant. Whether you thought you were saving the business money is irrelevant. What is relevant was what was in Mr Hartree's mind on 18 November. On 18 November he had before him Wilson Parking statements which showed that you were parking there all day. In his mind you never had permission to do that and he formed the view that you were misusing funds.
F. Reference is made to PN1510 to PN1519 as follows:
MS VAN WYNGAARDEN: Run through -whether it was run through petty cash or whether it was done with the card - I made the call to use the card - -
G. Reference is made to PN1511 as follows:
THE COMMISSIONER: Not your call to make - not your call to make.
Reference is made to PN1513 as follows:
THE COMMISSIONER: On 5 October - look, keep asking the questions, but you know, on 5 October the allegation was put to you and you never responded to it. You were sacked on 18 November.
Reference is made to PN1514 as follows:
MS VAN WYNGAARDEN: Commissioner, I responded to it at the written letter warning meeting and it was - - -
Reference is made to PN1515 as follows:
THE COMMISSIONER: No, you didn't.
Reference is made to PN1517 as follows:
THE COMMISSIONER: He said he wanted detailed responses to these matters and you never provided them.
Reference is made to PN1519 as follows:
THE COMMISSIONER: Well, his evidence is that - his evidence on the last occasion was he made it clear to you that he wanted a detailed response and you didn’t give him one.
H. The evidence overwhelmingly confirms that Mr Hartree had reasonable grounds to hold the belief.
[53] In answer to the question “Did Mr Hartree undertake an inquiry or investigation to establish his belief?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mr Hartree was advised by Mrs van Wyngaarden at the meeting on 6 October 2015 that she had been using the Wilson parking card instead of reimbursing herself continuously through petty cash and that the only change was the simplification of the administrative management of the parking.
B. Mr Hartree did not ask for any additional information regarding parking from Mrs van Wyngaarden whatsoever.
C. Mr Hartree had requested the petty cash file in the warning letter but after Mrs van Wyngaarden explained that she had not been claiming parking through petty cash Mr Hartree stated that he no longer required the file.
D. Mr Hartree had relied solely upon information from Wilson Parking who he was aware had had on-going issues and made many administrative errors in the past and again more recently. A3, DOCs 30 & 95
E. Mr Hartree was clearly not thorough in his inquiry since he falsely stated that he was the only card holder and that there was only one card. The statements sent from Wilson Parking show that three cards were actually in use. RS
F. The information Mr Hartree said that he obtained from Wilson Parking had always been available to him in the H+AA Creditors file under 'W' for Wilson.
b) the respondent
i. answered “yes”;
ii. submitted:
A. Paragraph 41 of Mr Hartree's Witness Statement which refers to document 5 in the Respondent's Supplementary Schedule of Documents.
B. Reference is made to following paragraphs in the Transcript of the proceedings on 15 April 2016 as follows (PN1555, PN1556, PN2239, PN2240, PN3209, and PN3210).
C. Perhaps the most telling exchange in the hearing on the question of the issue of the Applicant's unauthorised use of a Wilson Parking Card was the following:
- PN2567
THE COMMISSIONER: If I correctly understand it, your entitlement was if you needed to use your car for work purposes you would park your car, you would pay for it personally yourself and you would seek a reimbursement through petty cash, is that right?---That's generally what- yes.
- PN2568
That was the only thing you were authorised to do, isn’t it? ---No, no, not at all.
- PN2569
You were authorised only to have your parking paid for through petty cash, weren't you? ---1 was- yes, correct.
- PN2570
You weren’t authorised to use a parking card, were you? ---1 had my own parking card which I claimed my parking - --
- PN2571
You were not authorised to directly charge the company? ---No, not specific-
- PN2572
You were not authorised, were you? ---Not specifically, no."
D. The exchange referred to in paragraph 3 above is a blatant admission by the Applicant that she had no authority to use the Wilson Parking Card and entirely justifies such a complaint being referred to in the Respondent's warning letter.
E. It is submitted that the unauthorised use of the Wilson Parking Card in itself, without more, was serious misconduct entitling the Respondent to summarily terminate the employment of the Applicant in the manner it did and was consistent with the Code.
F. The evidence overwhelmingly confirms the inquiries Mr Hartree made to establish his belief.
Consideration and finding in relation to the unauthorised use of Wilson Parking Card
[54] Although it took some time for the applicant to make the concession it is beyond doubt that Ms Van Wyngaarden made unauthorised use of a Wilson Parking Card. She was not entitled to use it as she did. 63 Ms Van Wyngaarden expressly asked for the entitlement in December 2014, but it was denied to her. Notwithstanding, she took it upon herself to procure and use a Wilson Parking Card. She did not tell Mr Hartree that she had done so. 64 She did so in breach of a direction from Mr Hartree to use petty cash for her parking.65 Her use of the Wilson Parking Card was not an inexpensive item. To the extent that she thought it was a more efficient way for parking to be paid for is beside the point. Her use of the Wilson Parking Card was in direct defiance of the direction given by Mr Hartree. As an Associate Director of H+AA and Mr Hartree’s most trusted person managing his business, the use of the Wilson Parking Card was a profound breach of that trust. It was serious misconduct on behalf of the applicant. If this unfair dismissal application were to continue further the misuse of the Wilson Parking Card would, in my opinion, constitute a valid reason for termination.
[55] Having regard to all that has been put in relation to this issue I am satisfied that on 18 November 2015:
c) Mr Hartree held the belief that the applicant had made unauthorised use of the Wilson Parking Card 66; that
d) he held that belief on reasonable grounds; and that,
e) he had conducted reasonable inquiries to satisfy himself of that belief (having obtained and reviewed the records from Wilson Parking).
[56] Consequently, in relation to the applicant’s unauthorised use of the Wilson Parking Card I am satisfied that the respondent complied with the Code.
Unauthorised use of petty cash
[57] In answer to the question “On the day of dismissal did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly made unauthorised use of petty cash?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. No Mr Hartree did not hold the belief on the day of dismissal that Mrs van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly made unauthorised use of petty cash, because Mr Hartree did not review any petty cash records until after the termination of Mrs van Wyngaarden.
B. Mr Hartree stated falsely in his witness statement that he had accessed and reviewed petty cash records prior to the termination of Mrs van Wyngaarden. R2 par 15&30.
C. Mr Hartree confirmed twice in his witness statement in the Blythe matter that he discovered and accessed records after the departure of Mrs van Wyngaarden.
D. Mr Hartree did not raise any issues regarding petty cash with Mrs van Wyngaarden the whole time she was employed at Hartree +Associates Architects.
E. Mr Hartree did not state any petty cash issues in the warning letter.
F. Mr Hartree did not send any correspondence regarding petty cash records to Mrs van Wyngaarden whilst she was on Sick Leave.
G. Mr Hartree did not discuss any petty cash concerns with Mrs van Wyngaarden when she attended the office whilst on Sick Leave on 2 November 2015.
H. Mr Hartree did not state any petty cash reasons for termination in the termination letter.
b) the respondent
i. answered “yes”;
ii. submitted:
A. Reference is made to paragraph 30 of Mr Hartree's Witness Statement referred to above.
B. Reference is made to paragraph 34 of Mr Hartree's Witness Statement referred to above.
C. A bundle of various petty cash vouchers and receipts is item 3 in the Respondent's Supplementary Schedule of Documents Exhibit R6.
D. Reference is made to the following paragraphs from the Transcript of the Proceedings on 5 May 2016 as follows (PN1575, PN1578, PN1588, PN1604, PN1608, PN1616, PN3544, PN3547).
E. The evidence once again overwhelmingly confirms the belief held by Mr Hartree on 18 November 2015 which was subsequently confirmed.
[58] In answer to the question “Did Mr Hartree hold the above belief on reasonable grounds?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. No, Mr Hartree did not hold the above belief on reasonable grounds since Mr Hartree did not access or review petty cash records until after the termination of Mrs van Wyngaarden and did not discuss any concerns with Mrs van Wyngaarden.
b) the respondent:
i. answered “yes”;
ii. submitted:
A. PN2239 where the following question was put to Mr Hartree.
"I won't press the point. Just finally, Mr Hartree, is it your evidence that in the period of time that Ms van Wyngaarden was on holiday and you had opportunity to review the position, that is when the petty cash receipts were revealed to you prior to the termination?---That's correct. She was on sick leave, not on holiday, but, yes, that was the time. She had been on sick leave for some four weeks."
B. See Exhibit 13 being the Bundle of Petty Cash Receipts and Vouchers provided to the Commissioner and the Applicant.
C. Further evidence is contained in PN3208 and PN3209 of the Transcript.
D. At PN3729 the Commissioner asked the Applicant the following question:
"THE COMMISSIONER: Ms van Wyngaarden, his evidence is he had some concerns about petty cash. He asked you for the return of some receipts. You didn’t do that and so he had his sister look at these things before he sacked you. When she looked at these things, she brought these things to his attention and that is his evidence? ---Well, he -Commissioner, I showed you this morning that in his witness statement he lied about that. He removed the part of the sentence that stated that it was after- - -"
E. The evidence overwhelmingly confirms that there were reasonable grounds for Mr Hartree to hold this belief.
[59] In answer to the question “Did Mr Hartree undertake an inquiry or investigation to establish his belief?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mr Hartree did not discuss any concerns with Mrs van Wyngaarden.
B. Mr Hartree gave Mrs van Wyngaarden no opportunity to respond to any allegation or suspicions.
C. Mr Hartree did not have access to the MYOB programme or the data file prior to the termination of Mrs van Wyngaarden since the only computer in the office which had the programme installed was the laptop which was in Mrs van Wyngaarden's possession.
D. The only way of verifying what had been actually entered was to access the MYOB data file.
b) the respondent:
i. answered “yes”;
ii. submitted:
A. The assistance rendered to him by his sister, who has experience in business administration, who in the period while the Applicant was on leave found petty cash vouchers for the period to 31 March 2015.
B. See the responses to questions 3 a) and b) above which overlap this question and do not need to be repeated here.
C. The evidence overwhelmingly confirms that Mr Hartree undertook reasonable inquiries to establish his belief, which was subsequently justified to the fullest extent possible in any event.
Consideration and finding in relation to the unauthorised use of petty cash
[60] In line with the authorities the question to be answered is not “Did Ms Wyngaarden make unauthorised use of petty cash?” And nothing in my consideration of this issue should be taken as a finding that Ms Van Wyngaarden is a thief. As has already been explained, the test under the Code is a much lower standard.
[61] The facts are these:
a) Mr Hartree had concerns about the use of petty cash;
b) in the Written Warning Letter Mr Hartree asked the applicant for the petty cash records; 67
c) before going on sick leave the applicant did not provide Mr Hartree with the petty cash records;
d) while the applicant was on sick leave Mr Hartree had his sister (who is experienced in business administration) look at a number of petty cash vouchers; 68 and
e) based on what was reported to him by his sister and his own observation of petty cash vouchers, Mr Hartree formed the view that the applicant had been making unauthorised use of petty cash. 69
[62] To suggest that Mr Hartree did not have a belief, that Ms Van Wyngaarden had misused petty case, when he made the decision to terminate her is fanciful. Having reviewed the original receipts myself I can fully understand why Mr Hartree formed the view he did and why alarm bells were ringing for him.
[63] Some of the receipts (without further explanation) suggest Ms Van Wyngaarden often used petty cash to buy Mr Blythe breakfast, lunch, dinner or after work drinks. Ms Van Wyngaarden sort to explain the largesse as her being concerned for the occupational, health and safety of an overworked colleague. 70 That might explain the expenditure on Mr Blythe, but it does not explain the expenditure on herself (when she was in the company of Mr Blythe). Further, if there was a legitimate need to use petty cash to provide lunches and dinners for an overworked colleague, Ms Van Wyngaarden had every opportunity to explain this to Mr Hartree and seek his consent to this pastoral care of Mr Blythe. She chose not to do so.
[64] Again, the applicant’s submission essentially amounts to a submission that “Mr Hartree should not have had a belief (that I misused petty cash) because I can explain each transaction.” The applicant’s real complaint is that she was not provided with that opportunity. 71 It would ordinarily be a fair complaint from a procedural fairness perspective, but we are not yet at that point in the process. The task before me is to assess whether the respondent complied with the Code, not whether the termination of the applicant’s employment was harsh, unjust or unreasonable.
[65] Having regard to all that has been put in relation to this issue I am satisfied that on 18 November 2015:
f) Mr Hartree held the belief that the applicant had made unauthorised use of petty cash; 72 that
g) he held that belief on reasonable grounds; and that,
h) he had conducted reasonable inquiries to satisfy himself of that belief (noting the involvement of his sister who is experienced in business administration).
[66] Had Mr Hartree put these matters to Ms Van Wyngaarden his inquiry or investigation would likely have been better informed. It would have afforded her procedural fairness. However, the fact that he did not, does not render his inquiry inadequate. The test under the Code is a reasonable inquiry. The fact that, had Mr Hardtree put the allegations to Ms Van Wyngaarden, his inquiry would have been “more reasonable” does not invalidate the conclusion that he complied with the Code.
[67] Consequently, in relation to the applicant’s alleged unauthorised use of the petty cash I am satisfied that the respondent complied with the Code.
[68] Again, let me make it clear that I am not here making a finding that the applicant misused petty cash for her own benefit and or for the benefit of Mr Blythe. While some of Ms Van Wyngaarden’s explanations beggar belief, in applying the Code I am not required to make positive findings about each instance of petty cash use by the applicant.
Refusal to return petty cash records
[69] In answer to the question “On the day of dismissal did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly refused to return petty cash records (dated from 1 July 2015)?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mrs van Wyngaarden commenced sick leave on Friday 9 October and was still on Sick leave on the day of termination.
B. The petty cash records were in the locked cupboard and available to Mr Hartree as they always had been.
C. The petty cash records were not 'missing' when Mrs van Wyngaarden commenced Sick leave.
D. If Mr Hartree had any difficulty accessing any records whilst Mrs van Wyngaarden was on sick leave he could have emailed her as he did regarding numerous other enquiries.
E. It would have been acceptable that Mrs van Wyngaarden might have had the petty cash records in her possession since she had other administrative material in her possession i.e. timesheets and payroll information .
b) the respondent:
i. answered “yes”;
ii. submitted:
A. The Respondent first sought the return of the petty cash records from 1 July 2015 onwards in the warning letter dated 5 October 2015. The last sentence of paragraph 5 of Mr Hartree's letter to the Applicant stated "Please give me the petty cash record book and receipts since 01107115."
B. It is not in dispute that the Applicant did not provide a written response to the warning letter as requested by the Respondent. The Applicant has consistently denied that she even has in her possession the petty cash records of the Respondent for the period 1 July 2015 onwards.
C. At PN287 Mr Hartree gives the following evidence:
"At the time of the warning letter, I wasn’t intending on terminating the applicant. I hadn’t even really considered that at the time. I thought these were really serious matters, I thought that - I was very keen to see a response to them and when I didn't get any response outside of the applicant saying, "I'll give you a written response", but then not getting one, outside of a comment that the written warning was unnecessary, to me, that wasn't a response to these serious matters. So I saw that as a flashing light that I needed to go and do a whole lot more investigation into bank accounts, into email exchanges and other matters."
D. Reference is made to the following paragraphs of the Transcript (PN292, PN293, PN294, PN596, PN1610 where the Commissioner says to the Applicant (referring to the petty cash file):
"And where was it? In your view where was it? Where was it?" The Applicant responds “In the petty cash file, which is supposed to be missing." The Commissioner's response is "No. His evidence is that he had it up until a point of time. He doesn't have the records after that point of time. That is what he was pursuing you for."
In response to this question to the Applicant she responds at PN1610
"The petty cash reference that he made was about - the petty cash reference he made in the written warning letter was for- it was to do with the amounts of Wilson Parking. He wanted the petty cash file. He said he did not have the -"Please give me the petty cash file." He's found the petty cash file."
In response the Commissioner says,
"Yes, he wants the receipts after 1 July 2015... And you go on leave and he brings his sister in and she finds all these receipts and she finds these documents, and he had them before him before he terminated you."
E. Further evidence of the Applicant's refusal to return the petty cash records is contained in the following paragraphs of the Transcript (PN1694, PN1696, PN1710 where the Commissioner says to the Applicant):
"It's not your call to make. Your boss told you in express language, "Please give me the petty cash record book and receipts since 1 July 2015." Now if those were available you could have said to him - you could have walked him into the office and said, "Here, David, here they are, right here." You chose not to do it, and so he's left."
F. At PN1718 the Commissioner says to the Applicant:
"The only evidence before me currently is his evidence that he didn't know where it was, and his evidence there in black and white that he directed you to provide it and there's no evidence that you complied with that direction."
G. Further evidence regarding the Applicant's failure to return the petty cash files is contained in (PN1728, PN1729, PN1730, PN1731, PN1732, and PN1733).
H. In summary, the evidence of the Applicant's failure and/or refusal to return the petty cash file from 1 July 2015 onwards is compelling, unchallenged and overwhelmingly supports the Respondent's position that the Applicant did not return the petty cash files despite numerous requests that she do so. The Applicant provided no adequate explanation as to why the petty cash records from 1 July 2015 onwards could not be found by the Respondent despite a search of the premises of the Respondent including of course where the petty cash records should have been located. The only inference that can be drawn from this is that the Applicant deliberately removed the petty cash records and refuses to return them at the risk of further incrimination for theft and fraud. The Commission is invited to draw such an inference.
[70] In answer to the question “Did Mr Hartree hold the above belief on reasonable ground?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. No, Mr Hartree did not hold the above beliefs on reasonable grounds. He knew where the Petty Cash records were kept and had full access to the cupboard and had the key.
50. On 23 October 2015, while on sick leave from H+AA, the Applicant emailed Rebecca Boyd at BHP to confirm she was "out of hospital and on the mend...will call you Monday re the AGV models". See Document 11 in the Schedule of documents attached to Form F3.
51. An email dated 14 December 2015 sent inadvertently from Rebecca Boyd at BHP to the Applicant's H+AA email address confirms "we have had a few problems but you should have received the above detailed purchase order". See Document 12 in the Schedule of documents attached to Form F3. This confirmed the matters referred to in paragraphs 49 and 50 hereof."
C. Further evidence are the following paragraphs from the Transcript of the
Proceedings on 5 May 2016:
PN1308 where the Commissioner says to the Applicant:
"THE COMMISSIONER: ... But Mr Hartree's evidence is that in October 2015 he became suspicious that business that was meant for the model-making business was being diverted and was being diverted to Mr Blythe's business and that is in relation to that model. It's his evidence that that was the BHP model. His evidence is that he spoke to his accountant about it. His evidence is that his accountant did some digging around and discovered that this business - or business name had been registered and that based on that he formed the view that business was being diverted and that was one of the grounds for the termination of your employment.”:
(PN1318, PN1323, PN1376, PN1377, PN1380, PN1397 where the Commissioner says to the Applicant):
"THE COMMISSIONER: He didn’t - that is not his evidence. His evidence is that he suspected that work was being diverted. His evidence is not that he had any hard evidence of that when he made the decision to sack you on 18 November. All he had before him was the email of 23 October and, because you provided it to him, the Modeldyne ABN number and documents. Based on that, his accountant said to him, "Look, they’ve set up this business." So his evidence is, "That’s all that was before me and I formed the view that she is doing the wrong thing by me and I sacked her.""
PN1399 where the Commissioner says:
"THE COMMISSIONER: Now, if you want in submissions to say that's not good enough to meet the test under the small business fair dismissal code, then go for it. But I can't see how asking him questions is going to change any of that factual circumstance."
PN1412 where the Commissioner says:
"THE COMMISSIONER: Well, they must have -they must have - the point Mr Vilensky makes is a well-made one: it must have been in his mind on 18 November that you were diverting business because he writes to you on 18 November very much about that. It must have been in his mind, mustn't it?"
PN1808 where the Commissioner says:
"THE COMMISSIONER: Ms Van Wyngaarden, I don’t know whether you can have it both ways. I mean, you've got a medical certificate that says you're off, you know, right through until - it's 20-something of November - where is it? - 23 November, and yet you're sending emails between you and BHP on 23 October, two days after this certificate's issued; you're sending emails to Mr Hartree on 5 November. I mean, you can hardly say I was totally incapacitated and then there’s all these emails where you're evidencing you weren't."
PN1827 where the Commissioner says:
"THE COMMISSIONER: Ms Van Wyngaarden, look, the email speaks for itself. I can read the email. And the evidence is that’s all he had before him. He didn't speak with BHP; he formed a view that you were diverting business. That’s the evidence. In submissions you can say that was unreasonable for him to come to that view, but that's the evidence."
D. See the following further paragraphs from the Transcript (PN2799, PN2800, PN2801, PN2802, PN2804 to PN2808, PN2809, PN2810, PN2811, PN2817, PN2818, PN2819, PN2820, PN2827, PN2828 in which the Applicant confirms that the BHP Contract was issued to Mr Blythe, PN2840, PN2841).
E. PN2938 where Counsel for the Respondent asks the following question to the Applicant:
"Just let me finish the question. Can you offer to this Commission a credible explanation of how Mr Blythe, who doesn't have a phone, he doesn't have an email, he's uncontactable, everything's through you, right, that's clearly is his evidence and yours as well, and Mr Hartree's, how would he end up with a BHP contract, the identical contract, the 27 grand contract, which he acknowledges he got, so as far as he's concerned it's not in dispute, how did he get that?---1 don't agree with everything that you're saying in your sentence, but he - he has - - -
F. At PN2940 the Applicant eventually admits she was aware of the diversion of the BHP Contract from the Respondent to Mr Blythe.
G. Perhaps the most telling moment in the hearing regarding the diversion of the BHP Contract is at PN3908 to PN3911 which exchanges are as follows:
"You provided Ms Boyd’s contact details to Mr Blythe, didn’t you? ---No, because Mr Blythe doesn't have a telephone or an email.
Well, how did Mr Blythe and Ms Boyd get in contact with each other? ---They met with each other.
Did you facilitate that meeting? ---Yes, I did.
Ms Boyd's contact details - your ability to know where she was and to facilitate that meeting is information you obtained during your employment with the respondent, isn't it?---Yes, it is."
H. The evidence is compelling and overwhelmingly confirms the belief held by Mr Hartree on 18 November 2015 which was subsequently confirmed in any event.
[85] In answer to the question “Did Mr Hartree hold the above belief on reasonable grounds?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mr Hartree knew that he had instructed Mrs van Wyngaarden to contact BHP and two other clients to advise them that the model maker had departed.
B. Mr Hartree could have spoken to BHP himself; he did not.
C. Mr Hartree could have enquired with BHP if the order had been diverted if he had any concerns; he did not.
b) the respondent:
i. answered “yes”;
ii. submitted:
A. The evidence of this is overwhelming and is referred to in the responses to paragraphs 6 a) above which do not need to be repeated.
B. In essence, the Applicant conceded in her evidence that she facilitated the diversion of the BHP Contract to Mr Blythe and/or Modeldyne (their partnership that had been established while they were both employed by the Respondent) and in so doing confirmed the reasonable belief which Mr Hartree already held on 18 November 2015.
[86] In answer to the question “Did Mr Hartree undertake an inquiry or investigation to establish his belief?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mr Hartree never discussed any concerns with BHP or Rebecca Boyd.
B. Mr Hartree did not discuss any concerns with Mrs van Wyngaarden.
c) the respondent:
i. answered “yes”;
ii. submitted:
A. The evidence overwhelmingly confirmed that in the period between the Applicant going on sick leave on 9 October 2015 and the date of her summary dismissal on 18 November 2015 through the following processes Mr Hartree obtained further information about the diversion of the BHP Contract:
● Information provided to him by his accountant following enquiries he made regarding the establishment of the business name Modeldyne;
● With the assistance of the Respondent's IT Company accessing the Applicant's Outlook on her computer which Mr Hartree was lawfully entitled to do?
B. There was ample and compelling evidence to support Mr Hartree's very strong belief that the Applicant was in the process of diverting the BHP Contract prior to her termination. That suspicion was subsequently confirmed in the evidence in the hearing further giving weight to the reasonable beliefs held by Mr Hartree as at 18 November 2015 following the inquiries which he made to establish that belief.
Consideration and finding in relation to the diversion of BHP Business
[87] The applicant was particularly evasive about the email exchange between her and BHP Billiton and the subsequent telephone discussion with its representative. 77 She suggested that she was engaged in good customer relations for H+AA in circumstances where H+AA had lost its model maker and was unable to complete the work for BHP Billiton.78 I do not believe her. This is an example where the applicant’s competing loyalties went astray. She did not, at all times, prefer and advance the interests of H+AA over those of Mr Blythe.
[88] Therefore, having regard to all that has been put in relation to this issue I am satisfied that on 18 November 2015 Mr Hartree held the belief that the applicant had diverted the BHP Billiton business to Mr Blythe.
[89] However, I am not satisfied that Mr Hartree held that belief on reasonable grounds.
[90] Beyond seeing emails about Modeldyne and the BHP Billiton job, Mr Hartree conducted no further inquiry or investigation into the matter such that it would reasonably satisfy himself of that belief. He could have done so. For example he could have contacted BHP Billiton. As at 18 November 2015 Mr Hartree had a hunch that the applicant had diverted the BHP Billiton job to Mr Blythe, but that does not amount to a reasonable belief at that time. The fact that subsequent events point to a likely conclusion that Mr Hartree’s hunch was correct, does not assist the respondent in determining whether it complied with the Code.
[91] Consequently, in relation to the applicant’s alleged diversion of the BHP Billiton work to Mr Blythe I am not satisfied that the respondent complied with the Code.
Diversion of Kiwana opportunity
[92] In answer to the question “On the day of dismissal did Mr Hartree hold the belief that Ms Van Wyngaarden engaged in conduct that was serious and justified immediate dismissal because she allegedly diverted a Kwinana opportunity away from the respondent?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mr Hartree could not have held that belief, because he knew there was nothing to divert.
a) the respondent:
i. answered “yes”;
ii. submitted:
A. Paragraph 52 of Mr Hartree's Witness Statement which states as follows:
"Another project the Applicant was actively diverting to her new business while still employed by the Respondent was an interactive model for City of Kwinana. An email dated 22 October 2015 from Pacsal Veyradier, Coordinator Cultural Development at the City of Kwinana to the Applicant to re� established contact after an extended period of discussions regarding a significant model project ($100k). The Applicant responded by email the same day to confirm "great news I will call you tomorrow" before deleting this response from her H+AA Outlook system. See Document 7 in the Respondent's Supplementary Schedule of Documents."
B. The Affidavit of Mr Hartree sworn 18 May 2016 to which was attached a copy of a brochure prepared by the Respondent relating to the model making project called "Kwinana Interactive Community Model" prepared by the Respondent for the Town of Kwinana. The brochure also confirmed the cost estimate of the project of approximately $103,000, a fact denied by the Applicant in her evidence.
C. Annexed to Mr Hartree's Affidavit sworn 18 May 2016 was a chain of emails between the Applicant and Pascal Veyadier of the Town of Kwinana between the period 30 October 2015 and 22 October 2015 during which entire period the Applicant was employed by the Respondent. This included a copy of an extract of an email provided by the Respondent's IT consultants confirming that on 22 October 2015 at 9.47pm while the Applicant was employed by the Respondent (but was still on sick leave) the Applicant sent an email to Pascal Veyradier in response to the email from Pascal Veyradier sent on 22 October 2015 at 12.55pm. This was the so-called 'slam dunk' moment.
D. The exchange of emails referred to in paragraphs 3 above came to the attention of Mr Hartree when he accessed the Outlook computer of the Applicant while she was on leave between the period 9 October 2015 and 18 November 2015.
E. Mr Hartree’s Affidavit sworn 16 May 2016 was admitted into evidence. See paragraph PN2066 of the Transcript on 19 May 2016.
F. The Applicant first denied she had contacted Mr Veyradier by email. When under cross-examination she then said she might have sent him a text, and then changed her story to say she phoned him. That proved to be another lie told by the Applicant under oath because the evidence was that an email had indeed been sent by the Applicant to Mr Veyradier on 22 October 2015 contrary to the evidence given by the Applicant who denied she sent an email to Mr Veyradier.
G. See PN2062, PN2063 and PN2064 of the Transcript which exchanges are as follows:
"THE COMMISSIONER: But, Ms van Wyngaarden, look, that is not the issue here. The issue is you said you never replied to this email. There now seems to be some evidence that you did reply to the email on 22 October 2015 at
9.47 pm. Do you maintain your denial or not?
MS VAN WYNGAARDEN: Yes, I do maintain my denial, although the email says that I responded. I don't know how or why. I have got no record of anything that was sent and Pascal doesn't either. He recalls a telephone conversation I had with him and that is all I have got to offer.
THE COMMISSIONER: You have had every opportunity to call him to give that evidence. You can’t give evidence on this behalf. You can’t give evidence on his behalf from the Bar table."
H. The Commissioner is invited to draw an inference adverse to the Applicant that her failure to call Mr Veyradier (who she said was a personal friend) suggests he could not assist her case. Consequently, the Applicant's evidence relating to the diversion of the Town of Kwinana opportunity should be rejected and the evidence of the Respondent preferred.
I. The evidence confirms overwhelmingly the belief held by Mr Hartree on 18 November 2015.
[93] In answer to the question “Did Mr Hartree hold the above belief on reasonable grounds?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mr Hartree was aware that the Kwinana opportunity had been an on-going discussion starting in 2012.
B. Mr Hartree had no evidence at all showing that Mrs van Wyngaarden was in any way diverting the Kwinana model making opportunity away from the respondent.
C. As an architect Mr Hartree was aware of the Local Government Act governing council tender processes.
D. Mr Hartree was aware that Mr Veraydier was a personal friend of Mrs van Wyngaarden.
E. Mr Hartree never discussed any concerns with Mrs van Wyngaarden.
b) the respondent:
i. answered “yes”;
ii. submitted:
A. The evidence of this are the responses to question 7 a) above which overlap the questions in 7 b) which were subsequently confirmed in any event.
B. See the following paragraphs in the Transcript: (PN1835, PN1828, PN1830, PN1831, PN1837, PN1840, PN1841, PN1842, PN1844, PN1851- PN1857, PN1863, PN1864, PN1867, PN1871, PN1882, PN1884, PN1886- PN1889, PN2062, PN2148- PN2175).
[94] In answer to the question “Did Mr Hartree undertake an inquiry or investigation to establish his belief?”
a) the applicant:
i. answered “no”;
ii. submitted:
A. Mr Hartree never discussed any concerns with Mrs van Wyngaarden.
B. Mr Hartree did not discuss any concerns with the City of Kwinana or Mr Veraydier.
a) the respondent:
i. answered “yes”;
ii. submitted:
A. The evidence of the inquiries made is contained in the answers to paragraphs 7 a) and b) above which overlap the answers to the questions in 7 c) which do not need to be repeated.
B. Such evidence overwhelmingly confirms that Mr Hartree undertook reasonable inquiries to establish his belief on 18 November 2015 which was subsequently confirmed in any event.
Consideration and finding in relation to the diversion of the Kwinana opportunity
[95] The Kwinana opportunity falls into the same category as the BHP Billiton job. At the time of making the decision to terminate the applicant’s employment Mr Hartree was boxing at a shadow. He says he saw an email from the applicant to the City of Kwinana confirming the diversion of the work (that the applicant later deleted from the server (and could not be recovered)). 79
[96] Consequently, having regard to all that has been put in relation to this issue I am satisfied that on 18 November 2015 Mr Hartree held the belief that the applicant had diverted the Kwinana opportunity to Mr Blythe, but I am not satisfied that Mr Hartree held that belief on reasonable grounds.
[97] Beyond seeing emails about Modeldyne and from the City of Kwinana, Mr Hartree conducted no further inquiry or investigation into the matter such that it would reasonably satisfy himself of that belief. He could have done so. For example he could have contacted the City of Kwinana. As at 18 November 2015 Mr Hartree had a hunch that the applicant had diverted the Kwinana opportunity to Mr Blythe, but that does not amount to a reasonable belief at that time.
[98] Consequently, in relation to the applicant’s alleged diversion of the Kwinana opportunity to Mr Blythe I am not satisfied that the respondent complied with the Code.
Conclusion
[99] For the reason set out above, in all the circumstances, the Commission, as presently constituted, is satisfied the dismissal of the applicant was consistent with the Code is so far as Mr Hartree held the belief (on reasonable grounds) that Ms Van Wyndgaarden had:
a) failed to the comply with the Written Warning Letter;
b) made unauthorised use of the Wilson Parking Card;
c) made unauthorised use of petty cash; and
d) refused to return the petty cash records.
[100] Consequently:
a) the applicant was not unfairly dismissed; and
b) her application for an unfair dismissal remedy must be dismissed.
[101] An order will be issued with this decision.
COMMISSIONER
Appearances:
D Vilensky, solicitor for the Respondent
J Van Wyngaarden, for herself
Hearing Details:
2016
Perth
April 15
2016
Sydney, Perth
May 5
2016
Melbourne, Perth
19 May
Final Submissions:
Applicants Final Submissions, 16 June 2016
Respondents Final Submissions, 16 June 2016
1 Warrell v FWC [2013] FCA 291.
2 Transcript PN264, PN772, PN786, PN817
3 Transctipt PN2321, PN2453, PN2816, PN3214-3215, PN3064-3071
4 Transcript PN2394
5 Transcript PN2650-2653 PN3391
6 Transcript PN2383, PN3374
7 Transcript PN3419-3423 PN3473-3504
8 Exhibit R2 – Para 1
9 Exhibit R2 – Para 3
10 Exhibit R2 – Para 4-5
11 Exhibit R2 – Para 6-7
12 Exhibit R3 – Document 2 -Employer-Employee Agreement “confidentiality” clause. Accepted in Transcript PN2912-2914
13 Exhibit R2. Accepted in Transcript PN3445-3452
14 Transcript PN3125
15 Transcript PN3096
16 Transcript PN3126
17 Transcript PN3099-3100
18 Transcript PN2948-2949
19 Exhibit R3 – Document14
20 Transcript PN2799
21 Exhibit R3 – Document 9-10
22 Exhibit R3 – Document 1. Accepted in Transcript PN2628-2631
23 Exhibit R4. Accepted in Transcript PN319, PN2633
24 Exhibit R4. Accepted in Transcript PN321-323
25 Exhibit R2. Accepted in Transcript PN695-696
26 Exhibit R4. Accepted in Transcript PN326
27 Transcript PN744-745
28 Transcript PN280
29 Transcript PN283
30 Exhibit R2 – Para 30
31 Transcript PN480
32 Transcript PN2313-2319
33 Transcript PN1087-1089
34 Transcript PN1748-1768
35 Transcript PN1774-1776
36 Transcript PN1329-1337
37 Transcript PN282
38 Applicant’s Final Submissions dated 16 June 2016, page 1.
39 Transcript PN957
40 Transcript PN772
41 Transcript PN3457
42 Mr Blythe was the applicant’s support person during the hearing.
43 Transcript PN195-198, PN2559
44 Transcript PN282
45 Respondent’s final submissions dated 16 June 2016 – para 7.
46 Respondent’s final submissions dated 16 June 2016 – para 12.
47 Applicant’s final submissions dated 16 June - page 3.
48 [2012] FWAFB 1359.
49 [2010] FWA 7891.
50 [2011] FWA 3922.
51 Khammaneechan v Nanakhon Pty Ltd (2010) 204 IR 39 [61]; cited with approval in Pinawin v Domingo (2012) 219 IR 128 [27] and [29]; Steri-Flow Filtration (Aust) Pty Ltd v Erskine [2013] FWAFB 1943 (unreported, Acton SDP, Smith DP, Roe C, 24 April 2013).
52 Ibid.
53 Pinawin v Domingo (2012) 219 IR 128 [29].
54 PN1076, PN1135, PN1173, PN1492-1494, PN1801, PN3969
55 Harley v Rosecrest Asset Pty Ltd T/A Can Do International[2011] FWA 3922 (unreported, McCarthy DP, 21 June 2011) [8]; cited with approval in Pinawin v Domingo (2012) 219 IR 128 [28]‒[29].
56 Harley v Rosecrest Asset Pty Ltd T/A Can Do International[2011] FWA 3922 (unreported, McCarthy DP, 21 June 2011) [9]; cited with approval in Pinawin v Domingo (2012) 219 IR 128 [28]‒[29].
57 [2013] FWCFB 1943, [33].
58 Exhibit R4. Accepted in Transcript PN319, PN2633, PN695-696
59 Transcript PN711
60 Transcript PN2641
61 Transcript PN744-745
62 Transcript PN711
63 Transcript PN2567-2575, PN2580
64 Transcript PN2577-2579
65 Transcript PN2569
66 Transcript PN262
67 Transcript PN273
68 Transcript PN479
69 Transcript PN 480
70 Transcript PN3339-3340
71 Applicant’s answer to Question 3
72 Transcript PN533
73 Transcript PN1698
74 Transcript PN551
75 Applicants answers to question 5.
76 Transcript PN445-448
77 Transcript PN2813-2816
78 Transcript PN2805
79 Transcript PN2159
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