Misela Pavicic v Coles Supermarkets Australia Pty Ltd
[2021] FWC 842
•19 FEBRUARY 2021
| [2021] FWC 842 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Misela Pavicic
v
Coles Supermarkets Australia Pty Ltd
(U2020/13791)
DEPUTY PRESIDENT DEAN | SYDNEY, 19 FEBRUARY 2021 |
Application for an unfair dismissal remedy – application dismissed
[1] Ms Misela Pavicic was employed by Coles Supermarkets Australia Pty Ltd (Coles) until her employment was terminated on 8 October 2020 for serious misconduct. She made an application pursuant to s.394 of the Fair Work Act 2009 claiming that she was unfairly dismissed by Coles. She seeks reinstatement to her former position.
[2] The application was heard by video on 9 February 2021. At the hearing, Ms Pavicic was self-represented and was supported by her mother, Ms Ivanka Grubisic. Coles was represented with permission by Ms Helen Donovan of Allens.
[3] Ms Pavicic and Ms Anna Spear, Store Manager, gave evidence during the hearing.
[4] For the reasons set out below, I find that Ms Pavicic was not unfairly dismissed and will dismiss her application.
Background
[5] Ms Pavicic commenced employment on a full time basis with Coles as a Service Assistant on 16 November 2001. She performed her duties initially at Coles’ Liverpool and Belconnen stores, and from March 2020 at its Civic store until her employment ceased.
[6] In or about end of September 2020 Coles’ Fraud and Total Loss Team conducted an investigation into allegations that Ms Pavicic had:
a. fraudulently used Coles’ “Red Vouchers” to obtain benefits to which she was not entitled and in a manner that was contrary to its Red Vouchers Policy; and
b. authorised her own personal transactions, contrary to Coles’ Transactions Policy.
[7] An investigation report produced in October 2020 found the allegations proven.
[8] Ms Pavicic was stood down from 2 October 2020 on full pay pending the investigation.
[9] A disciplinary meeting was conducted on 7 October 2020. Ms Pavicic attended with Mr Joe Rebecchi of the Shop, Distributive and Allied Employees Association (the Union). Also in attendance were Ms Anna Spear (Store Manager) and Ms Elizabeth Moglia (Office Manager). At this meeting, Ms Pavicic was presented with the details of her alleged misconduct. She was shown the investigation report and other relevant material and was asked to respond to the allegations. The meeting was adjourned to the following day to allow her time to consider her response.
[10] The second meeting on 8 October 2020 was attended by Ms Spear and Mr Kris Wongwanich (Assistant Manager), with Ms Pavicic attending with her mother as a support person. She was advised of her dismissal at the end of this meeting.
The case for Ms Pavicic
[11] Some parts of Ms Pavicic’s evidence was not relevant to the matters I need to decide and accordingly is not repeated here.
[12] Relevantly, Ms Pavicic said that on the afternoon of Friday 2 October 2020 she was asked to meet Mr Wongwanich in the office. He told her that Coles alleged she had breached company policy as a result of her unauthorised use of a discount voucher (ie. the Red Voucher), and that she was suspended and banned from the store until Wednesday 7 October at which time a meeting would take place. She then left the store and contacted her Union.
[13] Ms Pavicic’s mother called the store the following day seeking further information and was advised that “everything will be explained on Wednesday”.
[14] Ms Pavicic met Mr Rebecchi at the store on 7 October, just prior to the scheduled start time of the meeting. During the meeting she was shown a witness statement, photos of her shopping in the store, and some receipts. She said she felt intimidated at the meeting as she didn not know her rights and it felt like an interrogation.
[15] She gave evidence that the first part of the meeting took around one hour, then there was a break before the meeting resumed. She said she felt coerced into resigning but did not do so, even though her union delegate advised her it was her only option. She also said she felt pressured into disclosing that she had a medical condition and was taking “mind altering medication”.
[16] The meeting concluded with Ms Pavicic being requested to provide further information at the meeting the following day including the name of her medication, how it was ‘mind altering’, and why it had not been disclosed to Coles previously.
[17] On Thursday 8 October when the meeting resumed, Ms Pavicic’s mother was in attendance as her support person.
[18] Ms Pavicic said that when she did not provide answers to the questions she had been asked the day before regarding her medication, Ms Spear became angry and proceeded to terminate her employment.
[19] A further discussion took place around a range of matters. Ms Pavicic returned her discount card and locker key, and then left the store.
[20] In her witness statement in reply, Ms Pavicic expanded on some of the events she had initially dealt with and responded to a number of matters in the evidence of Ms Spear.
The case for Coles
[21] Coles dismissed Ms Pavicic as a result of finding that she had defrauded Coles’ and her conduct breached its Code of Conduct, its Red Vouchers Policy, and its Transactions Policy.
[22] It said that over the period of 13 August 2020 to 2 October 2020, Ms Pavicic fraudulently used a Red Voucher to obtain a benefit to which she was not entitled, and authorised the transactions herself, in breach of the Transactions Policy.
[23] The relevant extracts from the relevant policies are as follows:
“Code of Conduct
This Code should be read in conjunction with the following policies … any other policies adopted by Coles from time to time, which can be found at mycoles>mywork>mypolicies
As a representative of Coles, you should:
• make truthful statements …
• learn about and follow all Coles policies and procedures and all relevant laws that apply to your role and follow any changes to these policies, procedures and laws;
• advise your Line Manager of any situations where you think there could be a breach of these expectations …;
• deal … honestly with … any … internal … parties;
• act in the best interests of Coles;
• not knowingly participate in any illegal or unethical activity or enter into any arrangement or participate in any activity that would conflict with Coles’ best interests; and
• not take advantage of your position or the property .. of Coles … for personal gain or to cause detriment to Coles …
…
Examples of unacceptable workplace behaviour which are likely to result in termination of employment include: … misleading or defrauding Coles.
Red Vouchers Policy
Red vouchers give customers a $2 discount off their shop. They are valid for 12 months from the date of issue and are for use by the leadership team in the following situations:
• If you can't provide another product option with a grey voucher.
• If we have kept the customer waiting anywhere in the store.
• To turn a bad customer experience into a positive experience.
• If we are out-of-stock on non-standard lines and no alternative is available.
• If the customer has provided feedback or assistance to the store or other customers.
• Any instance we need to say 'sorry' or 'thank you’.
…
All redeemed vouchers are to be defaced (using a pen or texta put a line through the barcode) and disposed of.
…
The following details should be recorded on the voucher: the current date; team member name (not signature).
Issue the voucher to the customer and explain that it can be redeemed at main lanes or Assisted Checkouts.
Action
1. When the customer scans the voucher, an intervention will be triggered upon moving to tender. Customer Coach will be alerted of the intervention by the tri-lights.
2. Press the Coles button.
3. Either: Scan your authorisation barcode - intervention is approved; or enter your User ID and PIN and select Approve.
4. The customer can finalise their transaction.
5. Deface the voucher by putting a line through it with a texta or pen and throw it in the bin.”
[24] The matter came to the attention of Coles as a result of another employee witnessing Ms Pavicic using the Red Voucher and authorising her own transactions through the self service lanes (known as assisted checkouts), and reporting what she had seen to the store manager.
[25] Coles’ Fraud and Total Loss Team then commenced an investigation. Ms Spear also conducted an investigation into some transactions she discovered by searching Coles’ computer system for the barcode on the Red Voucher, which uncovered some additional transactions between 13 August and 2 October 2020.
[26] The investigations revealed that Ms Pavicic had processed her own transactions at assisted checkouts in breach of the Transactions Policy and had used the same Red Voucher on 26 occasions. Ms Pavicic’s conduct was considered fraudulent because the voucher was not issued to her from a member of the Leadership Team and it was used for personal use and not the purpose for which it was intended. Further, it was used repeatedly and it was used with another discount being her 5% store discount.
[27] The investigations also reviewed CCTV footage at the assisted checkouts at the time the transactions were made. The CCTV footage showed Ms Pavicic using the Red Voucher with her store discount on 16 occasions. On these occasions, she scanned her mobile phone twice, presumably to scan her Flybuys card and her store discount card. She then scanned a piece of paper which was presumably the Red Voucher. This generated an error which was overridden by the use of her staff bar code which was on a lanyard. She then paid for the transaction.
[28] Ms Spear’s evidence in this regard was as follows:
“26. After my conversation with Ms Kaur, and briefing the Fraud and Total Loss teams, I carried out my own searches on the computer system to obtain receipts that recorded when the relevant Red Voucher had been used.
27. I generated a report of all the receipts involving the relevant Red Voucher. I performed various searches on the computer over the days of 30 September 2020 to 2 October 2020. The computer allowed me perform searches to back to August 2020.
28. The receipts I located on the system that involved the use of the relevant Red Voucher only showed the last 5 digits of the Flybuys card that was used in the transaction (it was the same Flybuys number on each receipt). As I did not know to whom this Flybuys card belonged, I retrieved the CCTV footage for each of the transactions to which the receipts related.
29. On reviewing that CCTV footage, I identified Ms Pavicic as the individual performing the transaction on each occasion.
30. My searches showed that Ms Pavicic had used the relevant Red Voucher 26 times (resulting in her receiving discounts totalling $52). I have arrived at this figure by reviewing the receipts again when drafting this statement. The number of occasions I put to Ms Pavicic in the disciplinary discussions was 24.”
[29] In terms of the meeting with Ms Pavicic on 7 October 2020, Ms Spears gave evidence that the meeting was attended by Mr Rebecchi as a support person for Ms Pavicic, Ms Moglia and Ms Spears. During the meeting she suspected that Ms Pavicic was using her mobile phone to record the meeting. She told Ms Pavicic that she did not consent to the meeting being recorded and offered her a pen and paper if she wished to take notes.
[30] During the meeting Ms Spears discussed the allegations that she had breached the Code of Conduct and relevant policies in relation to unauthorised discounts, and allowed her an opportunity to respond. Ms Pavicic was shown the investigation report, a copy of the receipts of all relevant transactions, the statement from Ms Kaur (the employee who had initially made the report about Ms Pavicic) and the Merchandise Trend Report which showed when the relevant Red Voucher had been used. Ms Spear offered to show Ms Pavicic the CCTV footage but she declined. Ms Pavicic was provided with a break so she could converse with her union representative and consider her responses to the allegations. When the meeting resumed, Ms Spear asked Ms Pavicic a number of questions which are set out in her witness statement but not repeated here. In response to a number of questions, Ms Pavicic simply responded to the effect that she did not know the answer to the question asked or declined to answer the question.
[31] Ms Spear also asked Ms Pavicic to provide further information about the medication she had disclosed that she was taking, and the meeting was adjourned to the following day to allow her to provide a response to the allegations and provide an answer to the questions regarding her medication.
[32] Ms Spear gave evidence that when the meeting resumed on 8 October 2020, Ms Pavicic had both Mr Rebbechi and her mother with her. Ms Pavicic was advised that she could have one support person, and she chose her mother. At the beginning of the meeting, Ms Spear again advised Ms Pavicic and her mother that the conversation could not be recorded.
[33] Ms Pavicic’s only responses during the meeting were to the effect that she had nothing to add or that she had no response. After providing Ms Pavicic with an opportunity to respond, Ms Spear adjourned the meeting to consult with other senior Coles employees and subsequently advised Ms Pavicic that a decision had been made to terminate her employment.
[34] Ms Spears in her evidence noted that Ms Pavicic had received training on the Red Vouchers in 2013 and was therefore aware of the circumstances in which they were to be used. She had also received training on the Code of Conduct in 2010 and had confirmed on a number of occasions since that she had read and understood the Code of Conduct.
[35] Ms Spears also gave evidence about Ms Pavicic’s disciplinary record, which demonstrated that Ms Pavicic had been disciplined previously for conduct and performance concerns, and had been issued with a warning on several occasions over the course of her employment.
Was Ms Pavicic’s dismissal unfair?
[36] Section 385 of the Act, set out below, defines what is an unfair dismissal.
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.”
[37] There is no suggestion that Ms Pavicic’s dismissal was a case of genuine redundancy or that the dismissal was consistent with the Small Business Fair Dismissal Code. Ms Pavicic has been unfairly dismissed only if I am satisfied that it was harsh, unjust or unreasonable.
[38] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[39] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.1
Valid reason - s.387(a)
[40] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.4
[41] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.5 The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.6
[42] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
[43] Having considered all of the evidence and submissions of the parties, I am satisfied there was a valid reason for Ms Pavicic’s dismissal.
[44] To the extent there is any factual dispute between the evidence of Ms Pavicic and Ms Spear, I prefer the evidence of Ms Spear, who presented as a reliable and credible witness. In contrast, Ms Pavicic presented as an evasive and unreliable witness. In cross examination she only conceded her involvement in the transactions for which CCTV footage had been produced by Coles and denied the rest. During the hearing, Coles produced images from the CCTV footage of the remaining transactions, and Ms Pavicic then conceded those transactions where there was a clear image of her. This occurred notwithstanding that the transaction receipts had already been produced, showing Ms Pavicic’s staff discount card number and her Flybuys number.
[45] She eventually conceded or acknowledged in cross examination that:
a. on the occasions in question she authorised her own transactions;
b. she recorded the meeting on 7 and 8 October, despite being specifically told she was not allowed to do so;
c. she would not allow a customer to keep a Red Voucher after it had been used once;
d. when processing Red Vouchers handed to her by customers, she would destroy it after it had been used once;
e. she used the Red Voucher on at least 24 occasions; and
f. she had been provided with the Code of Conduct or otherwise confirmed in writing that she would comply with the Code of Conduct during earlier performance discussions.
[46] Accordingly, based on the evidence of Ms Spear and Ms Pavicic’s concessions in cross examination, I am satisfied that in breach of the earlier mentioned policies, Ms Pavicic:
a. authorised her own transactions at assisted checkouts;
b. used the same Red Voucher on 26 occasions (of which 24 were conceded), obtaining a benefit to which she was not entitled and was fraudulent;
c. repeatedly used the Red Voucher for personal use and not for the purpose for which it was intended; and
d. used the Red Voucher with another discount, being her 5% store discount card.
[47] I am also satisfied that Ms Pavicic was aware that her actions were in breach of the relevant policies, and so her conduct constituted serious misconduct.
[48] To the extent that Ms Pavicic contended she was not responsible for her actions because of the medication she was on, I reject this argument. There was no medical evidence to support this contention, other than an extract from the medicine’s safety information sheet which outlined a number of possible side effects, however there was no evidence that she was actually suffering from any of those side effects.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
[49] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,7 in explicit terms8 and in plain and clear terms.9
[50] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.10 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.11
[51] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Ms Pavicic before his dismissal was effected.
[52] I am satisfied in this matter that Ms Pavicic was notified of a valid reason for her dismissal and was given an opportunity to respond. In particular, she was notified of the reason for her dismissal verbally during her meeting with Ms Spear on 8 October 2020, and was provided with a termination letter on 9 October 2020. In terms of an opportunity to respond, Ms Pavicic was provided with the evidence against her at the meeting on 7 October and asked a number of questions about how she came to have the voucher, why she had used it more than once, and why she had authorised her own transactions. She was advised of the possible disciplinary actions and provided with an opportunity to respond to the findings of the investigations. The meeting was adjourned for one day to allow her to consider and provide any further response, and to respond to some specific questions around her medication.
[53] The evidence of Coles with respect to the procedure it followed, which I accept, supports this finding.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[54] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[55] Ms Pavicic was not refused a support person, and indeed had the support of her union at the first meeting and her mother at the second meeting.
Warnings regarding unsatisfactory performance - s.387(e)
[56] There is no suggestion that Ms Pavicic was dismissed for unsatisfactory performance and so this criterion is not relevant.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
[57] Coles is a large business with dedicated human resources specialists. I do not consider that its size impacted on the procedures followed by it in effecting the dismissal.
Other relevant matters - s.387(h)
[58] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[59] I do not consider there are other matters that require consideration under this subsection.
Conclusion
[60] I have considered each of the matters specified in s.387 of the Act, and having weighed up each of those matters, I am satisfied that the dismissal of Ms Pavicic was not unfair. There was a valid reason for her dismissal which was undertaken in a procedurally fair manner. Accordingly, her application is dismissed.
DEPUTY PRESIDENT
Appearances:
M Pavicic on her own behalf.
H Donovan of Allens for Coles Supermarkets Australia Pty Ltd.
Hearing details:
2021.
Sydney (By video):
February 9.
Printed by authority of the Commonwealth Government Printer
<PR727052>
1 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
2 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
3 Ibid.
4 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
5 Edwards v Justice Giudice [1999] FCA 1836, [7].
6 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
7 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
8 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
9 Previsic v Australian Quarantine Inspection Services Print Q3730.
10 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
11 RMIT v Asher (2010) 194 IR 1, 14-15.
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