Mr Gavin Vangelatos v Wyong Rugby League Club Ltd T/A Wyong Rugby League Club
[2012] FWA 9107
•6 NOVEMBER 2012
[2012] FWA 9107 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gavin Vangelatos
v
Wyong Rugby League Club Ltd T/A Wyong Rugby League Club
(U2012/1021)
COMMISSIONER MACDONALD | SYDNEY, 6 NOVEMBER 2012 |
Application for unfair dismissal.
[1] This decision arises from an application by Mr Gavin Vangelatos (the Applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Wyong Rugby League Club Ltd t/as Wyong Rugby League Club (the Employer/the Respondent/the Club).
[2] The unfair dismissal application was filed on 4 May 2012.
[3] The Employer’s response to the unfair dismissal application was filed on 17 May 2012.
[4] The unfair dismissal application was listed for conciliation before a Fair Work Australia (FWA) Conciliator on 25 May 2012 but did not resolve.
[5] The unfair dismissal application was set down for a two day Hearing in Newcastle on 28 and 29 August 2012. The Hearing took place in the Newcastle Court House.
[6] The Applicant was represented by Mr C Acev, Industrial Advocate of United Voice, Liquor and Hospitality Division (the Union). Mr Acev called two witnesses:
Gerard Gilchrist - Union Organiser, the Union
Gavin Vangelatos - the Applicant
[7] The Respondent was represented by Ms E Nicolle, Workplace Relations Advocate, The Registered Clubs Association of New South Wales. Appearing with Ms Nicolle was Mr M Ushakoff of the same organisation and Mr C Unger, Chief Operating Officer of the Respondent. Ms Niocolle called the following witnesses:
Chris Hidalgo - Security Guard
Samantha Glynn - Duty Supervisor
Matthew Hosking - Duty Manager
Peter Shelswell - Group Employee Relations & Information Technology
Manager
[8] On both days of the Hearing, the Bench, the parties and witnesses viewed repeatedly, CCTV footage of the incident in question. This also required the recall of two witnesses, Hidalgo and Glynn.
BACKGROUND
[9] The Applicant was employed by the Respondent on 23 August 2010, as a member of the bar staff.
[10] On Saturday 21 April 2012, the Applicant was rostered to work the night shift: 5.00 pm to 1.00 am. His duties that night was working the poker machine area tray service.
[11] In the evening of that Saturday, a patron (Mr Conrad) was playing a poker machine - with a colleague. He or they played a particular poker machine for about 15 minutes. They left the machine to go to the cashier’s desk. Mr Conrad said he left his wallet in the poker machine tray. On their return to the poker machine, Mr Conrad observed that his wallet was missing. He reported his wallet missing. Security was alerted.
[12] Mr Hidalgo, a security person with an external security firm, when advised of a missing wallet over the two-way, responded back on the two-way, “Everyone check the toilets.” Mr Hidalgo checked one of the toilets. He observed that a cubicle was occupied. He looked under the closed door and observed that the placement of the occupant’s feet was facing the side of the cubicle and not facing the front of the cubicle door. He deposed he heard money being counted. He exited the toilet and waited outside. The person who left the toilet was a bar person, the Applicant. Mr Hidalgo entered the toilet but found no wallet. (Ex. 6)
[13] The Applicant returned to his duties and serviced at least one customer, according to a gaming log which logs the name of the attendant - the date/time - poker machine etc. (Ex. 5)
[14] The Applicant then left the building to go to his car. He gave evidence that he had been an asthmatic but still needed an inhaler. He said he went to the car to get his inhaler. He was still wearing his bumbag. The wearing of the bumbag (which contains his money float for the shift) outside the building is contrary to the Respondent’s policy.
[15] Mr Matthew Hosking, Duty Manager, had been notified immediately of the missing wallet by security. He spoke to the patron, Mr Conrad - for several seconds.
[16] Mr Hosking went to the Supervisor’s Room to review CCTV footage. It showed the Applicant approaching the poker machine being utilised by Conrad - but after Conrad and his colleague had left the poker machine to attend the cashier’s desk.
[17] Hosking asked Samantha Glynn to view the CCTV footage.
[18] Whilst Hosking and Glynn were viewing the CCTV, the Applicant walked by. Mr Hosking stopped him and asked if he had found a wallet. The Applicant responded, “No, I haven’t.” (Ex. 8) The Applicant according to Hosking and Glynn was shown the CCTV footage. The Applicant denied he was shown the CCTV footage. He was asked what he was picking up (with his right hand) when he leaned towards the poker machine. He responded, “I was picking up a glass.” (Hosking - Ex. 8, para 13 and Glynn - Ex. 7, para 13)
[19] The Applicant disputed this conversation version. He deposed he was asked if he had picked up anything ‘during my shift”. He had responded, “glasses, pieces of rubbish, papers etc.” (Ex. 2, para 6)
[20] The Applicant left the Supervisor’s Room.
[21] Mr Hidalgo entered the Supervisor’s Room and reported his toilet/security observation to Hosking. The CCTV footage showed the Applicant entering the toilet.
[22] Mr Hosking then consulted other persons about the incident: Mr Danny Coghlan (Venue Manager); Ms Samantha Glynn (Duty Supervisor); and Ms Donna Bowen (Gaming Supervisor).
[23] Mr Hosking and Ms Glynn later that evening had a meeting with the Applicant in the Auditorium and told him the meeting was formal and did the Applicant require a witness. The Applicant said “No”. He was asked about his attendance at the poker machine and thereafter. The Applicant denied taking a wallet.
[24] Mr Hosking advised the Applicant that there would be a further investigation and he may need to meet with HR. The Applicant made out a statutory declaration of the events.
[25] The next day, the Police attended the Respondent’s premises to request footage of the alleged theft of the wallet as Conrad had lodged a report with the Police.
[26] On Monday, 23 April, Mr Peter Shelswell (Group Employee Relations and Information Technology Manager) telephoned the Applicant to advise he was suspended from duty.
[27] On Tuesday, 24 April, a formal meeting occurred. The Applicant had a support person. Arising out of that interview, Shelswell announced that the Applicant’s service was to be terminated. The Respondent agreed to defer the termination and maintain the Applicant’s suspension until a union official could attend a meeting over the matter.
[28] A further meeting was held on Friday, 27 April. A union official, Mr Gerard Gilchrist, was present. Arising out of that meeting, the Applicant’s employment was terminated.
FINAL SUBMISSIONS
For the Applicant
[29] Mr Acev, for the Applicant, tendered an Outline of Submissions (Ex. 10) and spoke to that document. He made the following points:
(a) The Applicant denies that he took the wallet of a patron on 21 April 2012.
(b) The Respondent, having asserted that the dismissal was for serious and wilful misconduct, bears the onus of proving that the misconduct occurred: Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) [1990] 35 IR 70. The standard of proof upon the Respondent is to prove on the balance of probabilities, that the Applicant engaged in the alleged conduct: Briginshaw v Briginshaw [1938] 60 CLR 336.
(c) The Respondent has failed to discharge that onus of proof.
(d) At no time has the Respondent presented any CCTV evidence or eye witness account of any person that confirms that the Applicant did uplift the wallet of a patron on 21 April 2012. There was conflicting evidence as to where the patron placed his wallet: (a) in the poker machine tray and (b) in the space between two poker machines. Which was the correct evidence. There was only CCTV footage of the Applicant putting his right hand down in the space between two poker machines. The Respondent did not call the patron to give evidence on this conflict in the evidence and an inference should be drawn against the Respondent that the patron’s evidence would not have assisted the Respondent’s decision to dismiss the Applicant: Jones v Dunkel [1959] 101 CLR 298
(e) The Respondent has assessed the Applicant’s actions (in going to the toilet, and then exiting the club to go to his car) as highly irregular and highly suspicious.
(f) The Applicant affirms that the trip to the bathroom was to legitimately use the bathroom, and that he exited the Club to access a Ventolin asthma puffer from his car.
(g) Neither act confirms that the Applicant took a patron’s wallet. Neither the wallet nor any of its contents were found on or near the Applicant.
(h) The Respondent’s claim that the Applicant, on the balance of probability did steal the wallet, is sophistry.
(i) The Respondent’s decision to dismiss the Applicant is based on supposition and speculation that he was the most likely person to have taken the wallet, due to his presence in the poker machine area.
(j) The Respondent’s argument and evidence is not sufficient to move this tribunal to be sufficiently satisfied that the Applicant has enacted misconduct.
(k) It was the job of the Applicant on that shift to move throughout the poker machine area providing service to customers and as he does so, to gather up various items like glasses, rubbish, papers, and help keep the area tidy.
(l) The Applicant being where he should be, doing what he should be doing, isn’t suspicious conduct, it’s proper conduct.
(m) The Respondent has not established that there was any valid reason for terminating the Applicant: Selvachandran v Peteron v Plastics Pty Ltd [1995] 62 IR 371; Culpeper Intercontinental Ship Management Pty Ltd - PR944547 [2004] AIRC 261.
(n) The Applicant’s termination was harsh, unjust and unreasonable and was procedurally and substantively unfair.
(o) The tribunal should make Orders in accordance with Fair Work Act 2009 Section 391(1) (for reinstatement), Section 391(2) (for continuity) and Section 391(3) (to restore lost pay).
(p) Should the tribunal consider the reinstatement of the Applicant as inappropriate, then the tribunal should make an Order in accordance with Section 392 for the maximum compensation allowed.
For the Respondent
[30] Ms Nicolle, for the Respondent, tendered an Outline of submissions (Ex. 19) and spoke to that document. Ms Nicolle made the following points:
(a) The application should be dismissed.
(b) The Applicant was employed as a Gaming Attendant of the Respondent.
(c) The Applicant was terminated for the theft of a patron’s wallet. This is misconduct and the standard of proof upon the Respondent is the balance of probabilities: The Australasian Meat Industry Employees Union v G & K O’Connor Pty Ltd - Q4805 - Harrison C - 8 September 1998.
(d) On 21 April 2012, a patron of the Club is seen on CCTV footage in the possession of his wallet. The patron places his wallet between two poker machines, based on CCTV footage (20:04:06 / 8.14.16 pm). The patron is seen leaving the machine to collect a payment, and the Applicant is the only person to attend this machine in the patron’s absence. The Applicant, per the CCTV footage, is seen to bend over and pick up something with his right hand between the machines (20:18.54).
(e) When the patron returns, almost a minute later, he is visibly seen searching for his wallet that he had left at the machine, and reports it stolen with the Respondent.
(f) The Applicant is seen moving from the poker machine in question directly to the bathroom, holding his drinks serve tray horizontally with both hands. The CCTV footage establishes no items on this tray for it to be held in this manner.
(g) Shortly after exiting the bathroom, the Applicant leaves the premises of the Respondent, with his money bag, against the Respondent’s procedure. The Applicant exits the premises without notification to any other personnel or authority to obtain his Asthma Puffer, despite security and management having a clear presence on the evening.
(h) On the same evening of the missing wallet, the Applicant was shown the CCTV footage in the Supervisor’s Room by Hosking and Glynn, and questioned as to what he was doing when he was near the poker machine. The Applicant claimed he was picking up “a glass”.
(i) Upon further investigation by the Respondent, it is evident that the CCTV footage clearly illustrates that if the Applicant is removing “a glass” from between the poker machines, that glass does not appear on his tray as he moves away from the poker machine area. The Applicant is observed holding his tray in a horizontal position but there is nothing on the tray. His two hands are under the horizontal tray.
(j) The Applicant proceeded to the toilet. Mr Hidalgo, of security, entered the toilet and heard the sound of coins being counted in a locked cubicle. It was a counting of coins noise and not the jiggling of coins in the Applicant’s bumbag.
(k) On Tuesday 24 April 2012 and again on Friday 27 April 2012, the Respondent met with the Applicant and a Union Delegate. During this meeting, the allegations were provided to the Applicant in full. During this meeting, the Applicant changed his version of events and claims he was picking up “glasses and rubbish”. Again the CCTV footage does not verify the Applicant’s version of events. The Applicant further acknowledged that the manner in which he held his tray during this time was unusual, and that he would normally hold the tray with one hand.
(l) The Applicant’s responses to the Respondent were considered unsatisfactory and inconsistent with the Respondent’s witness accounts.
(m) The Respondent, based on all information it had available to it at the time, determined that the Applicant was involved in the removal of the wallet. The Applicant provided the Respondent with varying versions of events during its initial investigations and subsequent meetings held with him. The Applicant did not provide a reasonable response as to why he vacated the premises without notification to his superiors or any other employee, nor his unusual behaviour in the bathroom.
(n) The Respondent relied upon certain case law dealing with theft by an employee to support its investigation - decision making process: D.A. Whiting v Greenbank RSL Services Club Inc. [2008] AIRC 1062; Susan Terwisscha v Blacktown Workers Club Ltd [2010] FWA 2209.
(o) The Respondent is unable to trust the Applicant to complete his role diligently, or any other role within the Respondent’s employ.
(p) The employment relationship had broken beyond repair, with the Applicant breaking his fiduciary obligations to his Employer.
(q) The Applicant was afforded procedural fairness and was terminated for a valid and sound reason, being the theft of a patron’s wallet. The Union should have called the Patron as a witness, given the Union’s challenge to where the Patron deposited his wallet: tray or in between the poker machines. The application should be dismissed.
Applicant in Reply
[31] Mr Acev distinguished the case law submitted by Ms Nicolle for the Respondent, going to theft.
[32] Mr Acev reiterated that there was no conclusive confirmation that the patron had a wallet and that, if he did, as to whether he left it in the poker machine tray or in the space between two poker machines.
ISSUE: Jones v Dunkel
[33] The patron was not called to give evidence. There were issues raised during the proceedings by Mr Acev for the Applicant and which issues were within the patron’s knowledge: did he bring a wallet into the Club and, if he did, where did he place that wallet (the tray or the space in between the poker machines).
[34] Mr Acev said that a Jones v Dunkel inference should be drawn against the Respondent. Ms Nicolle submitted to the contrary.
[35] The New South Wales Court of Appeal has considered the question as to which party has the onus of calling a witness: Payne v Parker [1976] 1 NSWLR 191. Extracted below is a passage from the judgement of Glass JA. That passage is proposition number six which sets out the three conditions for the application of the Jones v Dunkel principle:
“6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number:
(a) the missing witness would be expected to be called by one party rather than the other,
(b) his evidence would elucidate a particular matter, (c) his absence is unexplained.
(7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v. Reichard (45), or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid. (46), or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid. (47), Regina v. Burdett (48), or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v. Castlemaine District Community Hospital (49), or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. (50). It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. (51). If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid. (52). Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman: Cafe v. Australian Portland Cement Pty. Ltd. (53); his safety officer: Earle v. Castlemaine District Community Hospital (54); his accountant: Steele v. Mirror Newspapers Ltd. (55); his treating doctor: O'Donnell v. Reichard (56).
(8) According to Wigmore, par. 285, the second condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts: Jones v. Dunkel (57), might have proved the contrary: ibid. (58); would have a close knowledge of the facts: O'Donnell v. Reichard (59), or where it appears that he had knowledge:Nuhic v. Rail & Road Excavations (60). I would think it insufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.
(9) The third condition is satisfied if no explanation is offered for the absence of the witness, or the tribunal thinks that the explanation given is unsatisfactory. The explanation tendered may be that the witness is ill, overseas, dead or refuses to waive his privilege: Wigmore, par. 286.”
[36] In the light of the foregoing passage, I find that the onus was on the Respondent to call the patron as a witness because the patron would be expected to be called by one party (the Club) rather than the other party (the first condition described above). The patron approached the Club (of which he is a member) and asserted that his wallet had been taken by “a staff member” who was “wearing a red shirt”. (Ex. 8, para 6) That assertion began an investigation process that led to the Applicant’s dismissal.
[37] The Club dismissed the Applicant for reason of theft and that constitutes misconduct. The onus was on the Employer to prove the misconduct and to show, on the balance of probabilities, that it had the evidence to support its decision to dismiss the Applicant on the ground of misconduct. That evidentiary onus begins with the assertion of the Club’s patron and whatever evidence the patron can bring forward to support the Club’s decision to dismiss the Applicant on the ground of misconduct.
CONSIDERATION
[38] Gavin Vangelatos filed an unfair dismissal application against his dismissal for serious and wilful misconduct.
[39] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:
a) “whether the application was made within the period required in subsection 394(2);
b) whether the person was protected from unfair dismissal;
c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
d) whether the dismissal was a case of genuine redundancy.”
[40] The unfair dismissal application was made seven (7) days after termination and was therefore made within the fourteen day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.
[41] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised section 382 as an issue for my consideration. Therefore, the Applicant is a person protected from unfair dismissal.
[42] Paragraph (c) and (d) of section 396 have no relevance in this case.
[43] The Applicant claimed that he had been unfairly dismissed and sought reinstatement and money for lost remuneration. In the alternate, he sought compensation.
[44] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:
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.”
[45] Paragraph (a) of section 395 is satisfied by way of the dismissal of the Applicant. Paragraphs (c) and (d) have no relevance in this case. As to paragraph (b), the Applicant said his dismissal was harsh and/or unjust and/or unreasonable.
[46] In order to determine whether the Applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWA to consider the factors set out in section 387. Those factors are:
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 matter that FWA considers relevant.”
(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);
[47] The first factor to be considered is whether there was a valid reason for the dismissal. In this case, the issues put against the Applicant related to his conduct.
[48] The Applicant was dismissed on 27 April by Peter Shelswell, Group Employee Relations and Information Technology Manager. The reason given to the Applicant was theft of a wallet belonging to a patron. (Ex. 9, para 24) The Employment Separation Certificate gave as the reason for termination: “Misconduct as an employee.” (Ex. 2, Annex. A)
[49] The Respondent’s case against the Applicant is built on circumstantial evidence. There is no direct evidence (witness or CCTV footage) of the Applicant removing the patron’s wallet. The Respondent’s case is built on the Applicant’s conduct upon leaving the particular machine and his responses to investigatory questioning.
[50] Mr Acev, for the applicant, challenged the Respondent’s circumstantial case.
[51] The first issue to consider is whether a wallet went missing. The patron who said his wallet was missing, did not give evidence in the proceedings. The Respondent’s witnesses, Glynn and Hosking, accepted the patron’s claim that a wallet had gone missing. Ms Glynn deposed that during their initial investigation into the incident, both she and Hosking asked themselves if a wallet had gone missing. Their answer evolved into an affirmative because of the Applicant’s particular response that he was picking up a glass (where the wallet allegedly would have been) but the CCTV footage did not show him in the possession of a glass. (Ex 7, paras. 18-21)
[52] Mr Shelswell, under cross-examination, said he accepted that a wallet had gone missing because there was no gain for the patron to make a false accusation. Shelswell pointed out that the patron raised a complaint with the Respondent about a missing wallet and apparently reported the matter to the Police who visited the Club the next day. The foregoing required effort on the part of the patron was for no gain. (PN 2270) Further, the Respondent did not reimburse the patron for the lost money contained in the wallet ($250 approximately).
[53] Another piece of evidence establishing that a wallet went missing was the presence of one or more members of the NSW Police Force at the Club on the Sunday: the day after the theft. The Police were requesting footage of the theft of the wallet as the patron had lodged a report with them. (Ex. 8, para 25) I find that the Police attendance means that a complaint was lodged by the patron. The lodging of a complaint with the Police means that the patron was backing up his assertion from the night before that his wallet had been taken.
[54] I accept that the patron had a wallet that went missing and not just because of the Police attendance. I also come to the view that a wallet went missing by the same process that Hosking and Glynn asked themselves if a wallet went missing and formed the view that it had because of the Applicant’s response to the initial investigations by Hosking and Glynn on the Saturday night. The Applicant’s response is set out below.
[55] There were two initial investigations (one informal - one formal) of the Applicant into the missing wallet on the Saturday night.
[56] The informal enquiry occurred whilst the Applicant was walking past the Supervisor’s Room in which Hosking and Glynn were reviewing the CCTV footage. Hosking stopped the Applicant and asked him if he had found a wallet. The Applicant answered in the negative.
[57] There is then a dispute between the Applicant and Hosking/Glynn as to the remainder of Hosking’s enquiry of the Applicant.
[58] Hosking deposed that the Applicant was shown CCTV footage and asked: “What is it that you are picking up?” The Applicant responded: “I was picking up a glass.” (Ex. 8, para 13) Glynn reports the same enquiry (that is, a specific question) by Hosking and the same response by the Applicant. (Ex. 7, para 13)
[59] The Applicant challenged in court their version of the conversation. His witness statement states he was not asked to view any CCTV footage or explain any specific action by him during the shift. He deposed that Hosking asked him if he “had picked up anything during my shift. I replied that I had, i.e. glasses, pieces of rubbish, papers etc.” (Ex. 2, paras 6 and 7)
[60] I resolve this conflict in the evidence in favour of Hosking and Glynn. It makes no sense that Hosking (or Glynn) would ask a general question as to what the Applicant had been doing during his shift, when Hosking and Glynn had a specific task in hand: a missing wallet and the Applicant’s presence, per the CCTV footage, at the poker machine where the wallet went missing.
[61] I accept that the Applicant viewed the CCTV footage. It showed three relevant photos of the Applicant at the particular poker machine. (The CCTV footage does not play in the format of a continuous uninterrupted stream of motion. It plays like a silent movie of old with stilted action. There can be as much as five (5) second gaps between one shot and the next.)
[62] One shot shows the Applicant in front of the poker machine with his right hand raised at waist height level. The next and second shot shows the Applicant bending forward and his right hand is down and in the space between the two poker machines. The next and third shot shows the Applicant standing up and turned ninety degrees to the poker machines and facing the mezzanine level which is about ten metres away.
[63] Hosking and Glynn had already viewed the CCTV footage and Hosking more than once before questioning the Applicant. The purpose of Hosking’s questioning would have gone to the Applicant explaining his presence at the patron’s poker machine. Hosking had no need to ask the Applicant a vague, general question about what duties he had been performing during his shift.
[64] The second and formal interview took place later that night in the Auditorium. The Applicant declined to have a witness present. Hosking and Glynn were present.
[65] During this meeting, Hosking asked the Applicant as to where the glass was that he said he picked up because the CCTV footage did not show the Applicant with a glass. The Applicant is recorded as not responding to this question but simply shrugged his shoulders. (Ex. 7, para 29)
[66] I accept that Hosking would have put a specific question to the Applicant (as he had previously done) as to the CCTV footage showing his presence at the poker machine and the Applicant extending his right arm to pick something up. Mr Hosking, in a formal investigation interview, would not have been asking the Applicant what duties he had performed during his shift. The Applicant’s claim that he was, once again, being asked a general question about the duties he had been carrying out is just not plausible. Mr Hosking deposed, and I accept, that he put to the Applicant, for comment, the Applicant’s initial response made in the Supervisor’s Room: “I was picking up a glass.” This was the response given by the Applicant when first asked to explain, based on the CCTV footage, as to what he was picking up.
[67] The Applicant’s denial during his unfair dismissal hearing, that he gave the above response is an afterthought. He realized that the CCTV footage did not show a glass on his tray in order to be consistent with his initial response that he was “picking up a glass.”
[68] The CCTV footage shows the Applicant moving from the third shot (see above) and onwards onto the mezzanine level, carrying his tray in a horizontal level but there is no glass (or glasses and/or rubbish and/or paper) on the tray. The tray is bare. The Applicant is holding the tray horizontal with both hands underneath the tray.
[69] Before continuing with the narrative of events that night, I deal with an issue raised by Mr Acev and that went to the location of the wallet: was it placed in the poker machine tray or in the space between the two poker machines? If it was placed in the tray, then how could the Applicant have taken the wallet as the CCTV footage shows his right hand going down somewhere in the space between the two poker machines?
[70] Ms Glynn deposed that the CCTV footage shows the patron placing his wallet from his right hand into the front tray area of the machine. (Ex. 7, para 19) Mr Hosking deposes that he was told by the patron that “I left my wallet at that machine ...”(Ex. 8, para 6) I note that the patron is not recorded as saying that he left his wallet in the tray.
[71] Under cross-examination Glynn agreed that the CCTV footage did not show the tray of the poker machine. (PN 1558) The context of that concession was that Mr Acev was attempting to establish that the CCTV footage did not establish the existence of a wallet. I have found that the patron did bring a wallet to the Club.
[72] Mr Hosking deposed that he reviewed the CCTV footage and that it showed the patron with a wallet and that he placed it between the machines. (Ex. 8, para 21) That is, his review of the CCTV footage puts the wallet not in the tray but in the space between the poker machines. There is a conflict in the evidence between Hosking and Glynn who said she saw the wallet being placed in the tray based on her review of the CCTV footage. But Glynn agreed under cross-examination that the CCTV footage did not show the tray and therefore she cannot give direct observational evidence on the wallet being in the tray issue. Accordingly, her evidence is no longer in conflict with that of Hosking.
[73] Mr Hosking made out a report on Sunday, 22 April 2012 of the previous night’s incident. In that report he said that the patron said the wallet was left “in the machine” whilst he went to the cashier’s desk. (Ex. 8, Annex C) “In the machine” suggests in the tray. But Hosking deposed in his witness statement that the patron said he left his wallet “at that machine” which could mean “in the tray” or in the surrounds of the machine.
[74] The patron did not give evidence in the proceedings in order to deal with the issues arising from his claim that his wallet had been stolen. His appearance may or may not have clarified the location of his wallet when he left it to attend the cashier’s desk.
[75] I resolve this issue by finding that the wallet was left in the space between the machines. I find that way because the Applicant was seen (by the CCTV footage) to be picking up something with his right hand. He said he was picking up a glass but the CCTV footage showed no glass on his horizontal tray which was bare. I find that he was picking up the patron’s wallet because (a) the CCTV footage did not show that he had picked up a glass and (b) his denial that he said to Hosking/Glynn that he had picked up a glass was not plausible.
[76] The narrative of the Applicant’s movements as he walked away from the said poker machine is as follows:
(a) he is walking towards the mezzanine floor, carrying his tray in a horizontal level with nothing on it and with both hands under the tray;
(b) he takes two or three steps up onto the mezzanine level and turns left. In turning left he bypasses a drink tray station where he could have left his tray whilst he attended the toilet;
(c) the CCTV footage does not show his entire passage along the mezzanine floor to the toilet;
(d) he leaves the tray on top of a poker machine, according to his evidence;
(e) he enters the toilet and closes the toilet door to his cubicle. Mr Hidalgo of security (having been alerted to a missing wallet) enters the toilet. He observes that the position of the Applicant’s feet is not that of facing towards the toilet but at right angles to the toilet. The Applicant said his feet were facing the side wall of the toilet because he was in this position whilst cleaning the toilet seat with toilet paper. Mr Hidalgo gives evidence that he can hear coins being counted;
(f) Mr Hidalgo waits outside the toilet (in the public area) and identifies the Applicant as the user of the toilet;
(g) the Applicant services at least one, maybe two or three customers, upon leaving the toilet;
(h) the Applicant, still wearing his bum bag, exits the Club to get, he said, his inhaler because he can feel asthmatic symptoms coming on. In leaving the Club, still wearing his bum bag, he did so without getting permission of someone in authority.
[77] I do not rely upon the foregoing narrative (b) to (h) inclusive to conclude that the Applicant took the wallet of the patron. That conclusion is based on the contents of paragraphs 55 to 68 inclusive.
[78] Having considered all of the evidence, and for the reasoning set out above, I find that the Respondent has discharged its onus of establishing that there was a valid reason for the dismissal of the Applicant.
(b) whether the person was notified of that reason
[79] The Applicant was notified of the reason for dismissal
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[80] The reason for dismissal went to conduct only.
[81] The applicant was given an opportunity to have a support person.
(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
[82] The Applicant was represented by his union official.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about the unsatisfactory performance before the dismissal
[83] This factor has no relevance as performance was not an issue.
(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
[84] This factor was not an issue.
(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
[85] This was not an issue.
(h) any other matters that FWA considers relevant
[86] The Applicant had been an employee of the Respondent for about 20 months.
CONCLUSION
[87] The Applicant was dismissed by the Respondent for theft of a patron’s wallet. The dismissal followed an investigation and informal and formal interviews.
[88] Given that the dismissal was for misconduct, the Respondent carried the onus of establishing on the balance of probabilities, that the Applicant had engaged in the conduct alleged.
[89] Fair Work Australia considered the Applicant’s claim that he had been unfairly dismissed by considering the factors set out in Section 387.
[90] I have found that the allegation made by the Respondent has been made out.
[91] The Respondent’s case against the Applicant was made more difficult by the failure of the patron to give evidence. The patron was not reimbursed by the Club for the loss of his money. I assume that the Club did not do so because to do so would set the precedent for more patrons to say that their wallet or purse had been stolen and allege an unverifiable sum of money was in that wallet or purse. Even if any club reimbursed any patron for an alleged stolen sum of money, an issue about the credit of the club and patron would arise where there was a court proceeding. Thus the issue would arise as to whether the patron’s evidence, in favour of a club’s dismissal of an employee, had been bought.
[92] Having considered all of the factors set out in Section 387 and all of the evidence and submissions, I decline to intervene in the Respondent’s decision to dismiss the services of Gavin Vangelatos.
COMMISSIONER
Appearances:
Mr C Acev of United Voice, Liquor and Hospitality Division, for the Applicant
Ms E Nicolle of The Registered Clubs Association of New South Wales, for the Respondent
Hearing details:
2012
Newcastle Court House
August 28 & 29
Printed by authority of the Commonwealth Government Printer
<Price code C, PR530607>
0
1
0