Jonathan Barber-Fleming v Billi Australia Pty Ltd T/A Billi Australia

[2020] FWC 6029

[2020] FWC 6029

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jonathan Barber-Fleming
v
Billi Australia Pty Ltd T/A Billi Australia
(U2020/5541)

COMMISSIONER CAMBRIDGE SYDNEY, 13 NOVEMBER 2020

Unfair dismissal - resignation offered as alternative to dismissal - misconduct involving misuse of company credit card - valid reason for dismissal - significant procedural deficiencies - dismissal unjust - nominal compensation provided.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 23 April 2020. The application was made by Jonathan Barber-Fleming (the applicant) and the respondent employer is Billi Australia Pty Ltd T/A Billi Australia ABN: 64 624 954 829 (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 3 April 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) (a) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 18 August and 16 September 2020.

[4] During a telephone Pre-Hearing Conference held on 23 June 2020, the Commission granted permission under s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. At the Hearing, the applicant was represented by Mr M Swanson, barrister, instructed by Ms K Lewis, solicitor from Voice Lawyers. Mr Swanson introduced evidence from the applicant as the only witness called in support of the unfair dismissal claim. The employer was represented by Mr M Foran, barrister, instructed by Ms J Lim, solicitor, from the firm of DLA Piper Australia. MrForan called one witness, Mr G Williams, who provided evidence on behalf of the employer.

Background

[5] The applicant had worked for the employer for about 3 years and 2 months. The applicant was employed as a Service Technician, and his role involved the installation, maintenance and repair of boiling and chilled water systems at various locations around New South Wales. The work performed by the applicant required him to drive between numerous locations and he was provided with a “work van” motor vehicle as a tool of trade. The employer also provided the applicant with a mobile phone, laptop computer, company credit card, and a Wilson parking card for work related use in connection with the performance of his work as a mobile Service Technician.

[6] The employer is a Victorian based company that designs, manufactures, sells, installs and maintains filtered, boiling and chilled water systems for use in both commercial and domestic settings. Although the employer primarily operates in Australia, it has expanded internationally in markets including New Zealand, the United Kingdom, Singapore, Hong Kong and the UAE. The employer had approximately 155 employees at the time of the applicant’s alleged unfair dismissal.

[7] The applicant is not an Australian citizen and his engagement with the employer was facilitated by way of a subclass 457 Visa that was sponsored by the employer. In mid-2018 a restructuring of the employer’s business caused a change to the entity named as the sponsor of the applicant’s 457 Visa. This change of sponsor entity meant that between 2 August and 21 September 2018, the applicant could not perform work for the employer nor could the employer pay him for any work performed. As these Visa difficulties were short-term, and created by the employer restructuring its business, the employer agreed that the applicant could use his company credit card to support himself and make purchases of a personal nature during the period when he was not permitted to work (2 August to 21 September 2018).

[8] After September 2018, the applicant’s 457 Visa sponsorship was reinstated, and the use of his company credit card and Wilson parking card reverted to the established requirement that the cards were to be used for expenditure in respect of work related purposes only. The use of the company credit card and Wilson parking card required the applicant inter alia, to engage in a process of submitting, reconciling and obtaining approval for all expenditure so as to verify that expenditure had been for work related purposes.

[9] In brief, the expenditure reconciliation and approval process involved the applicant making entries into a computer based system called Concur on a monthly basis. Shortly after the end of each month, the applicant would submit photos of receipts in respect of expenditure incurred in the previous month on his company credit card and the Wilson parking card. The monthly expenses claim documentation would be submitted to the applicant’s immediate supervisor, Mr Michael Fay.

[10] Mr Fay would conduct a first line review of the expenses claims that had been lodged by the applicant. Mr Fay would from time to time, include comments which questioned some of the expenses that had been submitted by the applicant. On occasions, Mr Fay would make a comment which indicated that identified expenditure was not work related and that the applicant would need to make payment for expenditure that Mr Fay had identified to be for personal purposes. On occasions, Mr Fay would make comments directing that the applicant remove particular expenses, or to check particular identified transactions, or he would direct that particular transactions needed to be paid by the applicant as they were for private usage of the company credit card or the Wilson parking card.

[11] Although the employer had documented policies that asserted that it would take action to recover any expenses incurred using a company credit card, fuel card or other card for personal rather than business related purposes, it did not implement any recovery measures. Consequently, although over time Mr Fay identified various transactions that had been submitted by the applicant and found not to be for work related purposes, and he had directed that these amounts be paid by the applicant or removed, there was no process implemented by the employer for recovery, nor did the applicant take any steps to pay any of the amounts that had been identified by Mr Fay.

[12] In February 2020, the employer’s General Manager - Field Services, Mr Williams, was alerted to two unauthorised personal transactions that appeared on the activity report for the applicant’s company credit card. Mr Williams spoke to the applicant about these transactions and he accepted the applicant’s explanation that these two particular transactions which were for Uber and Uber Eats, were incurred by mistake. Further, Mr Williams sent an email to the applicant recording the unauthorised private transactions and confirming that the applicant would visit an ANZ Bank branch and re-credit his company credit card account for the personal expenditure.

[13] On 11 March 2020, the applicant paid $100 credit onto his company credit card account. Strangely however, the total of the Uber and Uber Eats transactions that were the subject of concern raised by Mr Williams, was $61.60.

[14] Mr Williams raised the issue of the applicant’s expenses claimed for personal purposes with Mr Fay, the applicant’s immediate supervisor. Mr Fay confirmed that he had, at various times, questioned the applicant about apparent personal expenses which he had claimed as being work related expenditure. In particular, Mr Fay mentioned that in late 2019 he had questioned the applicant about a number of transactions for car parking which were not work related. Mr Williams decided that he would conduct an investigation into the applicant’s expenses claims, and he commenced to examine the applicant’s monthly expenses claims for October, November, December 2019 and January 2020.

[15] Mr Williams discovered a significant number of expenses that had been claimed by the applicant for what appeared to be unauthorised personal use. Significantly, Mr Williams identified 26 claims that the applicant made in respect of car parking at the Sydney Opera House car park at times outside of the applicant’s usual working hours. In addition, Mr Williams discovered that the applicant had made a claim for $8.50 for a “coffee for a customer” and another claim of $180 at a Footlocker retail outlet which the applicant claimed in relation to a uniform expense noted as being for “work shoes”.

[16] Mr Williams was shocked at what he had identified to be the applicant’s misuse of the company credit card involving the applicant deliberately and dishonestly using the employer provided cards for personal expenses. Mr Williams discussed the matter with Mr Fay, and he enquired as to why Mr Fay had not raised the personal transactions with the applicant. Mr Fay told Mr Williams that he had identified a number of expenses claimed by the applicant that were for personal use, and he had required the applicant to pay back particular amounts. However, upon further enquiry it was revealed that Mr Fay had not taken any further steps to ensure that any identified personal expenses that had been claimed by the applicant, had been repaid.

[17] On 5 March 2020, Mr Williams discussed his discovery of the applicant’s use of his company credit card for personal purposes with the employer’s Chief Operating Officer and the employer’s Human Resource Manager. In this discussion it was determined that after hearing from the applicant, if it was confirmed that the applicant had deliberately made personal expenses on his company card, such action would represent misconduct for which the applicant would be dismissed. It was further decided that once hearing from the applicant, if the misconduct had been established, the applicant would be given the option to resign from his employment as an alternative to dismissal. The employer’s Human Resource Manager prepared draft letters providing for either the resignation of the applicant or alternatively, the termination of his employment.

[18] On 2 April 2020, Mr Williams sent a calendar invitation for the applicant to attend a meeting with him on the following day, 3 April 2020. The calendar invitation indicated that the meeting was to deal with issues around the applicant’s use of the company credit card, and that given the serious nature of the issues, the applicant was invited to have a support person present during the meeting.

[19] On 3 April 2020, the applicant together with his support person, attended a meeting with Mr Williams and the employer’s Chief Operating Officer, Mr Minahan. During the meeting, Mr Williams showed the applicant a list that he had prepared which set out various transactions that had been made on the applicant’s company credit card and which appeared to be for personal rather than work related purposes. The applicant was asked by Mr Williams to provide some explanation about the transactions particularly those involving car parking at the Sydney Opera House outside of working hours, and the purchase made at the FootLocker retail store.

[20] Although there was some conflict in the evidence about the details of the exchanges took place during the meeting on 3 April 2020, the applicant did not challenge that the identified transactions represented a misuse of the company credit card for which he apologised, and apparently offered to repay. There was a short break in the meeting during which time Mr Williams and Mr Minahan privately discussed the responses that had been provided by the applicant in respect of the identified transactions on his company credit card for personal rather than work related purposes. Mr Williams and Mr Minahan concluded that the applicant’s conduct was dishonest and fraudulent and had breached the relationship of trust and confidence that the employer required in the applicant.

[21] Upon resumption of the meeting, Mr Williams informed the applicant that the employer considered his actions to have been other than honest mistakes and therefore represented misconduct for which he would be dismissed from his employment. Mr Williams offered the applicant an option to resign from his employment rather than to be dismissed, and he produced a pre-prepared resignation letter which the applicant then signed.

[22] Following the resignation provided by the applicant, he was paid 4 weeks remuneration in lieu of notice, together with an ex gratia payment of a further 2 weeks which was described as a payment made as a sign of goodwill. There was no evidence provided of the applicant’s attempts to find alternative employment following his dismissal.

The Case for the Applicant

[23] Mr Swanson, who appeared for the applicant at the Hearing, made oral submissions in elaboration of a documentary outline of submissions that had been filed on 17 June 2020. Mr Swanson stated that there were three topics which he would elaborate upon in support of the applicant’s unfair dismissal claim.

[24] The first topic mentioned by Mr Swanson was whether the applicant had been given notice of dismissal, and whether there was an opportunity to respond to that notice such that the applicant had been provided with overall procedural fairness in the course of his dismissal. The second topic mentioned by Mr Swanson was whether there was a valid reason for the applicant’s dismissal, and the third topic was whether or not the dismissal was harsh, unfair or unjust given the vulnerability of the applicant as a person working on a 457 Visa who was dismissed during the Covid pandemic.

[25] The submissions that were made by Mr Swanson referred to s. 387 of the Act, and firstly referred to paragraphs (b) and (c) of s. 387, which were submitted to be the procedural fairness dictates that the Commission must consider. Mr Swanson submitted that the procedural considerations arising from paragraphs (b) and (c) of s. 387 were of equal standing in respect of consideration as to whether there was a valid reason for dismissal. Mr Swanson submitted that irrespective of whether there was a valid reason for dismissal, although he did not concede that one existed, the Commission was required to consider whether or not the method of dismissal was still unfair.

[26] Mr Swanson submitted that the applicant had not been notified of the reasons for his dismissal. Mr Swanson made submissions which criticised the lack of particulars that were absent from the invitation for the applicant to attend the meeting with Mr Williams on 3 April 2020. Mr Swanson submitted that the first time that the issues relevant to dismissal were bought to the applicant’s attention was at the meeting on 3 April, when he was presented with a series of numbers and handwritten notes which were asserted to provide basis for his misuse of the company credit card. Mr Swanson submitted that Mr Williams knew that the applicant had dyslexia and significant problems with reading, and to present him with this information and the accompanying allegations did not represent proper notification of the reasons for dismissal.

[27] The submissions that were made by Mr Swanson stressed that the applicant’s dyslexia was not properly taken into account by Mr Williams when he presented the applicant with a documentary summary of the credit card transactions which were said to have involved personal rather than business related purposes. Mr Swanson submitted that Mr Williams did not provide the applicant with an opportunity to take the document away and to consider it carefully but instead compelled the applicant to make an immediate decision and provide answers about the identified transactions. Mr Swanson submitted that there was no proper opportunity provided to the applicant to respond even if the notice that was given at the meeting of 3 April represented proper notice.

[28] In further submissions, Mr Swanson asserted that the decision to dismiss the applicant had effectively been made on 5 March, nearly a month before the meeting held on 3 April 2020. Mr Swanson made submissions which focused on what he said was the predetermined outcome reflected by the preparation of a letter of resignation and other associated documentation. Mr Swanson submitted that the evidence of the circumstances surrounding the meeting held on 3 April demonstrated that the applicant had been denied procedural fairness and natural justice.

[29] The submissions made by Mr Swanson also asserted that there was not valid reason for the dismissal of the applicant. Mr Swanson submitted that there was no proper basis for the employer to have found that the applicant engaged in wilful dishonesty or that he had deliberately misused or failed to disclose fraudulent activities as had been asserted by the employer. Consequently, according to the submissions made by Mr Swanson, the reason for dismissal as was asserted by the employer to have been the applicant’s misconduct involving dishonesty, fraudulent and deliberate misuse of the company credit card, and failure to disclose his misuse, could not be established in fact, and therefore the reason for dismissal that was relied upon by the employer, could not be held to have been a valid reason.

[30] Mr Swanson further challenged that the applicant had been engaged in any form of misconduct and that the transactions on his company credit card which were for personal use occurred by the applicant’s mistaken use of the wrong card as he had confused his personal credit cards and parking cards with those provided by the employer. Mr Swanson submitted that the applicant provided a reasonable explanation for the mistaken use of the company credit card, and that he had not acted fraudulently or dishonestly.

[31] In further submissions, Mr Swanson asserted that many of the credit card transactions had been approved by Mr Fay, and in instances where Mr Fay had raised concern with the applicant about apparent private use of the company credit card, the applicant had assumed that the employer would recover these amounts in accordance with its policy document and by way of deduction from his pay. Consequently, according to the submissions made by Mr Swanson, any mistaken use of the company credit card for personal use had been, to the applicant’s knowledge, rectified, and therefore the applicant’s conduct did not represent fraudulent or dishonest activities. Mr Swanson submitted that any dishonesty or fraudulent activity existed only in the mind of Mr Williams and could not be properly established to the requisite standard of proof.

[32] Mr Swanson made further submissions which asserted that the dismissal of the applicant was otherwise unfair, unreasonable and harsh because the applicant was a person in a particularly vulnerable position working under a 457 Visa. In addition, it was particularly harsh to dismiss the applicant in circumstances where there was a global Covid pandemic. In addition, Mr Swanson noted that the applicant was further vulnerable because he had up ended his life to move to Australia, and he had a reasonable expectation that he would continue to be supported by the employer.

[33] Finally, in respect to remedy, the submissions made on behalf of the applicant asserted that compensation was an appropriate remedy and that an appropriate sum of the maximum available, 26 weeks, should be provided.

The Case for the Employer

[34] Mr Foran appeared for the employer at the Hearing, and he made oral submissions in opposition to the application. In addition, the employer filed an outline of submissions document on 7 August 2020. The outline of submissions document noted that the employer accepted that the applicant’s employment was terminated at its initiative on 3 April 2020, notwithstanding that the employer permitted the applicant to resign.

[35] Mr Foran made submissions which firstly addressed the question of valid reason for dismissal, secondly, his submissions went to the matter of procedural fairness, and thirdly, submissions were made on the issue of any proper measure of compensation if the employer was ultimately unsuccessful in defending the applicant’s unfair dismissal claim.

[36] In his initial submissions, Mr Foran addressed the question of the employer’s policies and procedures regarding the monthly expenses claim lodgement process which utilised the Concur system. Mr Foran stressed that it was clear to the applicant and other employees, that the use of the company credit card was confined to work related purposes. Further, Mr Foran acknowledged that from time to time there was what he described as an occasional slip up, where an individual made a genuine mistake which was identified, and then rectification of that mistake was anticipated. Mr Foran further acknowledged that the process for such rectification was ad hoc and had not been applied by the employer with any confirmed clarity.

[37] Mr Foran further submitted that in respect to the issue of valid reason for the dismissal of the applicant, it was clear that, in circumstances where there was mistaken use of the company credit card for personal purposes, the applicant knew how to declare such a mistake, and particularly in the instances involving Sydney Opera House car parking, he had every opportunity to identify any mistaken use. Mr Foran made submissions which criticised the applicant’s conduct as essentially submitting claims that he knew involved personal use but transferring responsibility for identification of the personal use to be identified by Mr Fay. Mr Foran submitted that this demonstrated a type of behaviour whereby the applicant tried to profit through concealment of the personal use of his company credit card.

[38] Mr Foran made submissions which rejected the explanation that the applicant had provided for the use of the company credit card for personal purposes. Mr Foran submitted that the proposition that the applicant became confused and simply mixed up his personal credit card with the company credit card should be rejected. Mr Foran said that the applicant’s personal credit card was grey in colour and the corporate credit card was gold and clearly distinguishable. Further, Mr Foran submitted that if the applicant had genuinely mixed up his personal and company credit cards, there would have been evidence that showed the use of his personal credit card for business purposes. Mr Foran submitted that the applicant knew exactly what he was doing, and this was not a matter involving any true mistake.

[39] The submissions made by Mr Foran asserted that the applicant was dismissed because his employer lacked trust and confidence in him because it had discovered that he knowingly took money that was not his, and he concocted two flimsy lies to conceal the true intent of his behaviour. Mr Foran submitted that the applicant had not mistakenly used his company credit card rather than his personal card, nor did he truly believe that any identified personal use of his company credit card would be recovered by way of deduction from his wages. Consequently, Mr Foran submitted that there was valid reason for the dismissal of the applicant as the employer had lost the necessary trust and confidence to continue the applicant in employment.

[40] Mr Foran made further submissions in respect of the issue of procedural fairness. Mr Foran submitted that the prospect that the applicant had not been given a proper opportunity to consider the allegations made against him in respect of personal use of his corporate credit card, should be rejected. Mr Foran submitted that the subsequent opportunity provided to the applicant demonstrated that he could not provide a satisfactory explanation for the misuse of his company credit card particularly in respect to the Sydney Opera House car parking transactions. Mr Foran submitted that there was no practical injustice that had been suffered by the applicant when he was required to respond to the allegations in the circumstances of the meeting held on 3 April 2020.

[41] The third topic addressed by the submissions made by Mr Foran went to the question of the appropriate measure of compensation if it was found that the applicant had been unfairly dismissed. Mr Foran submitted that there was a valid reason for the dismissal of the applicant and that compensation, if it was to be assessed, should have regard for the period of time that would have enabled the employer to have conducted a fair process, which should then be further impacted by a deduction in respect of any misconduct that the Commission would take into account. In addition, Mr Foran submitted that the applicant had not produced any evidence of mitigation. Mr Foran submitted that the appropriate measure of any compensation would result in little or no amount ultimately being provided to the applicant.

[42] In summary, the submissions made by Mr Foran asserted that the evidence had established that there was a valid reason for the dismissal of the applicant, and a consideration of that reason meant that his dismissal was not harsh, unjust or unreasonable. However, Mr Foran further submitted that if some procedural deficiency was established, any proper assessment of compensation should, having regard for various factors, including the amounts that were paid to the applicant on termination, result in an amount that would be reduced to nil.

Consideration

[43] The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:

“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.”

[44] In this case, although the applicant had signed a resignation letter, he did so in circumstances where the resignation was presented by the employer as an alternative to his dismissal. Consequently, the employer has accepted that the applicant was a person who had been dismissed. Further, the employer was not a small business nor was the dismissal a case of genuine redundancy. Therefore, the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.

[45] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. Section 387 is in the following terms:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

S. 387 (a) - Valid reason for the dismissal related to capacity or conduct

[46] In this case the applicant was dismissed because of his conduct involving the misuse of his company credit card. The misuse of the company credit card was undeniable. However, the context and underlying reason or reasons for the misuse has required detailed examination. Critically, it has been necessary to determine whether the applicant’s misuse of the company credit card was inadvertent or deliberate.

[47] The nature of the applicant’s employment as a mobile Service Technician regularly required expenditure for work related purposes including, petrol and maintenance costs for his service van, car parking, and purchases of consumable and other items that were, from time to time, required to complete installation and/or servicing tasks. In order to make these work related expenditures the applicant was issued with inter alia, a company credit card. The provision of a company credit card to an employee places a clear and significant level of trust and obligation on the employee to ensure that expenditure on the company credit card is for work related purposes and not personal use.

[48] The applicant’s use of the company credit card was monitored by way of a monthly reconciliation process. Essentially, each month the applicant submitted receipts or other proof of expenditure that had been incurred on the company credit card during the preceding month. The monthly expenses claim summary was reviewed by the applicant’s immediate supervisor, Mr Fay, who identified if any expenditure appeared to be for personal use or otherwise requiring repayment.

[49] Mr Fay had, from time to time, identified various transactions that were for the applicant’s personal use. Although advice of the rejected personal transactions was conveyed to the applicant, there was no process by which repayment or recovery of those amounts would be implemented. The applicant said that he assumed that the private expenditure transactions that had been identified by Mr Fay would have been deducted from his wages. However, no deductions were ever made from the applicant’s wage payments, and the applicant apparently never checked whether or not any deductions were taken.

[50] Consequently, the system that the employer adopted for control and scrutiny of the use of company credit cards that were issued to its employees including the applicant, was severely flawed. However, there is invariably a significant level of trust associated with any use of a company credit card. It was clear that the employer accepted and recognised that some instances of genuine and honest mistake might have led to inadvertent misuse of the company credit card. In other instances, there may be some understandable contention as to whether a particular transaction was for work related purposes or apparent private use.

[51] Broadly speaking, a level of reasonable accommodation for inadvertent misuse of a company credit card would usually apply, and similarly, a verification process for particular transactions might ultimately involve the employer’s rejection or acceptance of the work related nature of the expenditure. This was the position adopted by Mr Williams when in February 2020, his attention was drawn to two transactions on the applicant’s company credit card which respectively involved Uber and Uber Eats purchases. At the time, Mr Williams accepted the applicant’s explanation that these two transactions represented inadvertent misuse which the applicant agreed to repay by crediting money onto his company credit card.

[52] Regrettably, the subsequent investigation that was undertaken by Mr Williams revealed significant misuse of the company credit card by the applicant. Mr Williams was shocked by the nature and extent of the applicant’s misuse of the company credit card. Mr Williams formed the view that the nature and number of transactions involving the applicant’s misuse of his company credit card represented deliberate and dishonest misconduct.

[53] Unfortunately for the applicant, the evidence that was provided during the Hearing of this matter has confirmed the view that was adopted by Mr Williams and relied upon by the employer as the basis for the dismissal of the applicant. A careful examination of all of the evidence, and providing beneficial consideration of the explanations that had been offered by the applicant, has, regrettably, substantiated that the nature and extent of the applicant’s misuse of the company credit card could not be attributed to inadvertent mistake but instead represented deliberate dishonesty.

[54] The most striking evidence which has provided confirmation that the applicant’s misuse of his company credit card was not inadvertent, has involved the distinctly different appearance of the company credit card and the personal credit card. Any reasonable and objective contemplation involving a comparison of the colour versions of these cards 1 must render the proposition that the applicant could inadvertently “mix up” the two cards, to be fanciful. The personal card is grey/blue in colour, while the company card is bright gold, and to repeatedly mistake the gold card for the grey/blue card on 26 occasions when parking after hours at the Sydney Opera House would entail a stretch of credulity beyond any imagination.

[55] It should also be noted that despite Mr Williams accepting that the Uber and Uber Eats transactions in February 2020 were mistakes which the applicant subsequently rectified, there is an obvious enduring concern arising from the claim that the applicant made in respect to the Uber Eats transaction.

[56] The applicant’s Concur expenses claim document for the month of February 2020 2 included photographs of the various receipts that related to expenditure on the company credit card. In respect to the Uber Eats transaction, the applicant submitted a photograph3 of what appears to be a paper card containing nothing other than the handwritten amount of “$19.29”. It is difficult to comprehend that the applicant would not have known, at the time that he submitted this photograph, that the $19.29 was for an Uber Eats transaction which was not a work related expenditure.

[57] In summary therefore, the conduct of the applicant which involved his significant misuse of his company credit card was not inadvertent or accidental misuse, but deliberate, repeated acts of dishonesty, which constituted misconduct and provided valid reason for the dismissal of the applicant.

S. 387 (b) - Notification of reason for dismissal

[58] The employer did not provide proper notification of the reason for the dismissal of the applicant. On 2 April 2020, the applicant was required to attend a meeting on the following day which was only identified to be a discussion about issues around the applicant’s use of the company credit card. However, nearly a month earlier, on 5 March 2020, the employer had assembled detailed information about what represented allegations of misconduct involving the applicant’s significant misuse of his company credit card. Further, on 5 March 2020, the employer had formed the view that the identified misconduct was likely to lead to the dismissal of the applicant. Consequently, prior to the meeting of 3 April 2020, the employer should have provided notification to the applicant of the allegations including the transaction summary document that was presented to the applicant during the meeting.

[59] Regrettably, the process that the employer adopted whereby it summonsed the applicant into a meeting to discuss matters that appeared to be of a disciplinary nature without providing any notification of the allegations that it would put to the applicant at the meeting, was little more than a carefully calculated ambush. It appeared that the employer deliberately adopted the ambush approach to enhance the prospects that the applicant would agree to resign as an alternative to his dismissal. The employer’s ambush of the applicant was successful, and the applicant signed the pre-prepared resignation letter during the meeting.

S. 387 (c) - Opportunity to respond to any reason related to capacity or conduct

[60] The applicant was not given a proper opportunity to respond to the allegations concerning his misuse of the company credit card. The approach that was adopted by Mr Williams was severely flawed and it denied the applicant natural justice.

[61] Although Mr Williams had what appeared to be prima facie evidence of the applicant’s deliberate, dishonest misuse of the company credit card, the applicant was entitled to be provided with the particulars of the allegations made against him and given an opportunity to calmly and carefully examine that material before he provided any explanation or offered any defences. There was no justification for the haste with which the employer required the applicant to respond during the meeting on 3 April 2020, particularly as it had assembled material underpinning the applicant’s alleged misconduct almost a month earlier. The unnecessary haste that the employer introduced during the meeting of 3 April 2020, appeared to be designed to unjustly induce the immediate resignation of the applicant. The process that the employer adopted whereby it ambushed the applicant and induced his resignation, represented a fundamental injustice.

S. 387 (d) - Unreasonable refusal to allow a support person to assist

[62] The employer did not unreasonably refuse to allow the applicant to have a support person present to assist at any discussions relating to dismissal. The applicant did have a support person present during the meeting held on 3 April 2020.

S. 387 (e) - Warning about unsatisfactory performance

[63] This factor is not relevant to the circumstances in this instance as the applicant was not dismissed for unsatisfactory performance but instead for misconduct which provided basis for the employer’s loss of the necessary trust and confidence to continue the applicant’s employment.

S. 387 (f) - Size of enterprise likely to impact on procedures

[64] The employer is a medium size business operation and therefore the size of the enterprise was unlikely to impact on the procedures that were adopted in respect to the dismissal of the applicant.

S. 387 (g) - Absence of management specialists or expertise likely to impact on procedures

[65] There was evidence that the employer did have human resource/employment management specialists. Consequently, it was surprising to observe that the employer adopted a severely flawed procedure which denied the applicant natural justice and involved ambushing him in a manner that was designed to induce his immediate resignation.

S. 387 (h) - Other relevant matters

[66] The applicant was engaged under a subclass 457 Visa and his particular employment position meant that he was subjected to a heightened level of vulnerability. However, these circumstances did not provide an immunity from termination of employment for just cause.

Conclusion

[67] The applicant was dismissed for misconduct involving his significant, deliberate misuse of his company credit card. This misconduct was considered by the employer to have resulted in a loss of the trust and confidence necessary to continue the applicant’s employment. Upon careful analysis, the employer’s findings of misconduct have been confirmed.

[68] The misconduct of the applicant which involved his repeated, deliberate and dishonest misuse of his company credit card was misconduct that was plainly inconsistent with the continuation of employment and it established valid reason for the dismissal of the applicant. However, the applicant’s misconduct should be appropriately characterised and not overstated.

[69] The applicant engaged in deliberate and dishonest conduct, but he was not involved in extensive fraudulent activities that attempted to deprive the employer of significant amounts of money. It should be acknowledged that the applicant was prepared to repay the amounts that he had dishonestly expended on his company credit card. Further, the employer was prepared to permit the applicant to resign, and it paid additional amounts on termination which was a reflection of the lower level of severity that it genuinely applied to the applicant’s misconduct.

[70] The valid reason for the dismissal of the applicant, when appropriately characterised, has been assessed and evaluated against the significant procedural errors which were evident in the process that the employer adopted, whereby it failed to provide natural justice to the applicant and instead engaged in a process that represented an ambush that was designed to induce his immediate resignation. In this instance, manifest fault has been established in respect of the conduct of both the applicant and the employer.

[71] The procedural errors in this case were matters of significance such that the applicant was denied natural justice. There was no justification for the employer not providing the applicant with details of the allegations regarding the misuse of his company credit card in advance of a meeting at which he would be given a proper opportunity to provide explanation or offer defences.

[72] Therefore, although the applicant was dismissed for valid reason involving his misconduct, the significant procedural defects evident in respect of the manner in which the employer induced the resignation of the applicant and denied him proper opportunity to explain or defend his actions, have rendered the dismissal to have been unjust. The applicant’s dismissal has been found to have been unfair, and the Commission must logically consider the appropriate remedy that should be provided in this instance.

Remedy

[73] The applicant has not sought reinstatement as remedy for his unfair dismissal. The written submissions provided on behalf of the applicant sought a remedy of compensation of “the maximum available 26 weeks of payment.”

[74] In the circumstances, particularly as the employment of the applicant was irreparably damaged by the nature of his misconduct, reinstatement would not be an appropriate remedy. Further, in the particular circumstances of this case which involved misconduct, the appropriate remedy would logically contemplate potential for reduction of any amount of monetary compensation.

[75] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.

[76] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that have been established in the Full Bench Decisions of, inter alia; Sprigg v Paul’s Licensed Festival Supermarket 4 (Sprigg); Smith and Ors v Moore Paragon Australia Ltd 5 and more recently, the cases of; McCulloch v Calvary Health Care Adelaide6; Balaclava Pastoral Co Pty Ltd v Nurcombe;7 and Hanson Construction Materials v Pericich8(Pericich).

[77] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the respondent employer in lieu of the reinstatement of the applicant.

[78] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[79] There was no evidence provided which established that an Order of compensation would impact on the viability of the employer’s enterprise.

[80] The applicant had been employed for a period of about three years and two months. The applicant would have been likely to have received remuneration of approximately $1,230.00 per week if he had not been dismissed.

[81] There was clear evidence upon which to conclude that the employment of the applicant could have finalised in accordance with a proper and just contemplation of his misconduct. Consequently, the employment of the applicant would have concluded within two weeks after his unfair dismissal.

[82] For the purposes of calculation of remuneration that the applicant would have received or would have been likely to receive if he had not been dismissed, I have considered that the employment of the applicant would have continued for a further two weeks. Therefore, the total remuneration that would have been received in the notional period of two weeks following dismissal amounted to a figure of $2,460.00.

[83] The total amount of remuneration received in alternative employment, as identified, and that which may be reasonably likely to be earned between dismissal and the making of the Order for compensation, has been calculated to be $0. There was no evidence that the applicant had sought to obtain alternative employment, nor was there evidence of any remuneration that may have been obtained by the applicant if alternative employment had been secured.

[84] Thirdly, in this instance there was established misconduct of the applicant, and consequently I have decided to make a reduction of 50% to the amount of compensation to be provided to the applicant on account of his misconduct.

[85] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[86] Fifthly, the amount Ordered does not exceed the compensation cap as prescribed by s. 392 (5) of the Act.

[87] Consequently, for the reasons outlined above, taking into account all of the circumstances of the case, and having cognisance so as not to apply the approach taken in the Decision in Sprigg in a rigid, determinative manner, as was cautioned in the Decision in Pericich, I have decided that the amount of compensation to be provided to the applicant should be a gross figure of $1,230.00.

[88] Accordingly, separate Orders [PR724429] providing for unfair dismissal remedy in these terms will be issued.

COMMISSIONER

Appearances:

Mr M Swanson, Counsel with Ms K Lewis, solicitor from Voice Lawyers for the Applicant.

Mr M Foran, Counsel with Ms J Lim, solicitor from DLA Piper Australiafor the Respondent.

Hearing details:

2020.
Sydney:
August, 18.
September, 16.

Printed by authority of the Commonwealth Government Printer

<PR724427>

 1   Exhibit 1 - Annexure ‘F’ and Exhibit 3 - Annexure “GW-7”.

 2   Exhibit 3 - Annexure “GW-8”.

 3   Exhibit 3 @page 155.

 4 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 5   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

 6   John McCulloch v Calvary Health Care Adelaide, (Ross P, Hatcher VP and Gostencnik DP), [2015] FWCFB 873.

 7   Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, (Hatcher VP, Gostencnik DP and Cribb C) [2017] FWCFB 429.

 8   Hanson Construction Materials Pty Ltd v Darren Pericich, (Ross P, Masson DP and Lee C), [2018] FWCFB 5960.