Michael Clark v Jetts 24 hour Fitness

[2020] FWC 6331

[2020] FWC 6331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Clark
v
Jetts 24 hour Fitness
(U2020/2995)

COMMISSIONER WILLIAMS PERTH, 30 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Michael Clark (Mr Clark or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 13 March 2020. The Respondent is Jetts 24 hour Fitness (Jetts or the Respondent).

[2] At the hearing of this matter Mr Clark did not give evidence on his own behalf and did not call any other persons to give evidence. For the Respondent, evidence was given by Ms Alisha Marie Murdoch (Ms Murdoch), the People and Culture Coordinator for the Respondent, and Ms Bianca Fehlberg (Ms Fehlberg), Head of Company Clubs for the Respondent.

Factual findings

[3] Mr Clark did not submit a witness statement and did not give evidence in this matter. 1

[4] Having considered the witness statements, oral evidence in chief, and answers under cross examination given at the hearing by Ms Murdoch and Ms Fehlberg, plus having regard for the information provided by the Applicant in his application, his written outline of submissions and his oral submissions, my factual findings are as follows.

[5] The Respondent directly owns a number of fitness centres throughout Australia.

[6] Mr Clark began working for the Respondent in 2018.

[7] He was dismissed by the Respondent on 21 February 2020.

[8] Mr Clark had been employed as the Regional Manager in Western Australia for the Respondent.

[9] Mr Clark’s role placed him in a position of power and responsibility for nine of the Respondent’s clubs in Western Australia. Mr Clark’s role oversaw Western Australia’s performance. His position was to inspire, lead and drive the staff in performance in his region. His role came with a high degree of responsibility.

[10] On 19 February 2020 during a video call Mr Clark was advised that following a review of the organisational structure the business was proposing to make his role redundant in Western Australia.

[11] During the call Mr Clark was advised that Ms Fehlberg, whose position is the Head of Company Clubs, and Ms Murdoch, who is the People and Culture Coordinator, would be travelling to Perth two days later to meet with him for a further discussion regarding the proposed redundancy.

[12] At the end of this video meeting Mr Clark was advised that there would be a period of consultation to allow him to consider internal opportunities within the business. He was instructed neither to attend for work nor otherwise enter the Jetts’ clubs from that point on.

[13] The Respondent also provided Mr Clark with a letter, dated 19 February 2020, explaining the situation and setting out a series of dates for a process of future consultation.

[14] On 20 February 2020, whilst Ms Fehlberg and Ms Murdoch were travelling to Perth, they were advised that reviews of CCTV footage implicated Mr Clark in a number of instances of possible theft at multiple clubs in Perth.

[15] Consequently, they used the rest of that day to gather information and further investigate the matter.

[16] A letter was provided to Mr Clark by email dated 20 February 2020 which was a show cause letter in relation to alleged serious misconduct.

[17] The relevant parts of the letter are set out below.

“The purpose of this letter is to notify you that, following an investigation, Jetts considers that you may have engaged in gross misconduct. As a result, Jetts is considering potential termination of your employment.

As background to the proceedings outlined in this letter, on Wednesday 19 February 2020, you were invited to a consultation meeting regarding a proposed redundancy. At the conclusion of this meeting, you were advised that you will now enter a period of consultation to enable you to consider internal opportunities with Jetts. During the period of consultation, you were instructed not to work or enter your place of work (i.e. Jetts Clubs). Despite clear instruction, you are alleged to have secured a membership under a foreign name, via a Network Club of Jetts and proceeded to steal from the till of several Clubs, namely; Jetts Currambine, Jetts Gosnells, and Jetts Armadale.

In light of the allegations presented on Thursday 20 February 2020, Jetts considers that you may have engaged in gross misconduct and are now proceeding to request you Show Cause as to why Jetts should not proceed to terminate your employment.

Furthermore, this letter sets out details of the alleged misconduct in order to give you an opportunity to respond to such concerns before a final decision is made in relation to your ongoing employment.

At the conclusion of the letter, you are invited to attend a meeting with Bianca Fehlberg, Head of Company Clubs and Alisha Murdoch, People and Culture Coordinator at 3:30pm Friday 21 February 2020 for the purpose of responding to the matters raised in this letter.

•  Allegations of serious misconduct

•  It is alleged that:

•  On the day of Thursday 20 February 2020, you are alleged to have entered in to three separate Jetts Clubs being, Jetts Currambine, Jetts Gosnells and Jetts Armadale and stolen money from the cash till at the credenza;

•  It is alleged that whilst on a period of consultation, and advised not to work you have secured a Jetts Membership at Jetts Gosnells and proceeded to enter several Jetts Clubs for purposes of theft;

•  These allegations have been reported by several Club Managers;

•  Furthermore, these allegations have been confirmed via camera video footage which shows you entering the Club, approaching the credenza and proceeding to open the till and remove cash;

•  Your actions are considered in breach of Jetts Code of Conduct Policy, the terms and conditions of your agreement and Jetts Core Values specifically: ...” (Original emphasis)

[18] The letter states that Respondent considers Mr Clark to have engaged in gross misconduct and is considering disciplinary action including possible termination of his employment.

[19] The letter concluded by inviting Mr Clark to a formal meeting the following day.

[20] The Respondent has provided a statement from each of the five Managers of the clubs that were affected by the alleged theft. Each of them identified that there had been some amount of cash missing from their club. The statements explain what occurred on the day in question when the alleged theft took place. I accept the evidence of the Respondent that the statements correlate with the CCTV footage from each club. 2

[21] Each of the statements in summary refers to the Club Manager having either personally seen Mr Clark or reviewed CCTV footage from 19 or 20 February 2020 which shows Mr Clark engaging in activity in the club that includes him looking through either the cashbox and/or the credenza. Some of the Club Managers who reviewed the CCTV in their club express the view that Mr Clark appears to have positioned himself so that he is blocking the view the security camera would otherwise have of the cashbox or the credenza whilst he is opening it.

[22] Relevantly of course, Mr Clark had been instructed not to attend any of the Respondent’s clubs during the meeting concerning redundancy on 19 February 2020. 3

[23] A disciplinary meeting was then held on Friday, 21 February 2020 with Mr Clark.

[24] During the meeting Mr Clark denied all the allegations. He asked to see proof of him actually stealing from the club. Mr Clark was shown the CCTV footage from one of the clubs.

[25] Ms Murdoch’s evidence was that at one point Mr Clark remarked that if he was to return $50 would they consider an alternative option. 4

[26] After a short deliberation the decision was made that Mr Clark would be dismissed for the reasons set out in the letter of termination as below.

“You were asked to explain the allegations presented to you and furthermore, asked directly if you stole money from the Clubs mentioned, namely Jetts Currambine, Jetts Armadale and Jetts Gosnells on the date in question. You responded by requesting to view the video footage. The video footage has been shown to you which shows you entering Jetts Armadale at 21:52 on Wednesday 19 February 2020, approaching the credenza, removing money from the till, dropping money on the ground, picking it up then proceeding to exit the premise at 21:55.

You have again been asked whether the allegations outlined are correct to which you have responded by requesting proof of the allegations in question. We have responded by stating the evidence in question has been outlined in detail and furthermore captured on the video footage which has been shown to you.

We have proceeded to advise that since issuing the Show Cause letter, additional allegations have surfaced. These allege that between Wednesday 19 February 2020 and Thursday 20 February 2020 you have activated upward of 20 illegitimate membership profiles under foreign names across multiple Jetts Clubs to gain unlawful access to Clubs. You have had no response to this. These allegations further escalate our concerns that your behaviour was wilful, deliberate and causes an imminent risk to Jetts business operations.

We consider that your actions constitute serious misconduct warranting summary dismissal.”

[27] The Respondent’s evidence is that after Mr Clark had been dismissed further investigations have established Mr Clark had created multiple false memberships across multiple clubs both within the Respondent’s own clubs and clubs owned by franchisees. 5

[28] The creation of the false memberships in franchisee clubs by Mr Clark necessitated the CEO of the Respondent consulting with the franchisees to alert them to the risk they were potentially exposed to.

[29] Mr Clark advised in his submissions that he was lucky enough to find a job at another health club the week after he was terminated. 6

The legislation

[30] Section 387 of the Act sets out the particular matters the Commission is required to have regard for when determining whether a dismissal was harsh, unjust or unreasonable.

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

Consideration

Valid reason

[31] The evidence is that during the meeting on 19 February 2020, when Mr Clark was advised that his position was likely to be made redundant, he was instructed not to attend work and not to go into any of the Respondent’s clubs.

[32] The evidence is however that Mr Clark disobeyed the Respondent’s instruction and, subsequent to this meeting, went to five separate clubs.

[33] I am satisfied that whilst at each of these five clubs Mr Clark rifled through the cashbox or credenza and in four instances, on the balance of probability, removed money without authority.

[34] The evidence is also that Mr Clark created a number of false memberships within the Respondent’s system without authority.

[35] These reasons separately and together were valid reasons for Mr Clark’s dismissal.

Notification of the reason

[36] Mr Clark was notified in a show cause letter and in a meeting of the reasons the Respondent was considering dismissing him before the decision to dismiss him was made.

Opportunity to respond

[37] Mr Clark had an opportunity to respond to the reasons for which he was dismissed at the meeting on 21 February 2020 and denied all the allegations.

Refusal to allow a support person

[38] There was no refusal to allow support person.

Size of the Respondent’s enterprise and presence of Human Resource Management expertise or specialists

[39] The Respondent is a medium-size business with approximately 140 employees and has a number of in-house Human Resource Managers and the procedure followed in effecting Mr Clark’s dismissal reflects this.

Warnings

[40] Mr Clark’s dismissal was not related to his performance and this issue is therefore not relevant in this matter.

Other relevant matters

[41] Mr Clark had been employed for approximately two years at the time of his dismissal.

Conclusion

[42] In this case the Respondent had obtained significant evidence of Mr Clark’s apparent wrongdoing and when he was provided with an opportunity to explain why his employer should not conclude he had misconducted himself he did not provide any explanation of substance at all.

[43] Similarly, at the hearing of this matter Mr Clark has not rebutted the evidence against him.

[44] The dismissal of Mr Clark was neither harsh, unjust, nor unreasonable. Mr Clark was not unfairly dismissed.

[45] Consequently, this application will be dismissed and an order [PR724871] to that effect will now be issued.

Appearances:

M Clark on his own behalf.
A Murdoch on behalf of the Respondent.

Hearing details:

2020.
Perth (by telephone):
September 1.

Printed by authority of the Commonwealth Government Printer

<PR724870>

 1   Email from Applicant to chambers dated 14 July 2020 at 8:18am.

 2   Transcript at PN26 and PN115.

 3   Ibid., at PN119.

 4   Ibid., at PN21.

 5   Ibid., at PN39 and PN111.

 6   Ibid., at PN128.