Mr John Shea v Action Industrial Catering Pty Ltd

[2013] FWC 6132

[2013] FWC 6132

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr John Shea
v
Action Industrial Catering Pty Ltd
(U2013/435)

COMMISSIONER CLOGHAN PERTH, 29 AUGUST 2013

Unfair dismissal.

[1] This is an application by Mr John Shea seeking a remedy for alleged unfair dismissal.

[2] Mr Shea was primarily dismissed by his former employer for obtaining, as relief manager, $468.50 from another employee to cover a shortage in the bar cash register. Mr Shea claims that the money was given voluntarily.

PROCEDURAL BACKGROUND

[3] On 15 February 2013, Mr John Shea (Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Action Industrial Catering Pty Ltd (Employer).

[4] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[5] The application was unable to be resolved at conciliation and referred to me for arbitration on 12 March 2013.

[6] On 25 March 2013 I issued procedural directions.

[7] The Applicant sought, by way of an Order, the production of documents which was the subject of a preliminary hearing on 7 May 2013.

[8] The substantive hearing into the application occurred on 20 June 2013. At the hearing, the Applicant represented himself and gave evidence on his own behalf. The Employer was represented by Mr Davies Chibale, Human Resources Manager, and evidence was given on behalf of the Employer by:

● Mr David Calkins, Operations Manager
● Mr Duncan Clark, Camp Manager
● Mr Craig Spence, Relief Head Chef/Camp Manager
● Ms Courtney Keenan, Cleaning duties and 5:30 pm to 9:30 pm in the bar between 24 and 30 December 2012

[9] Having received the submission and evidence of the parties, this is my decision and reasons for decision.

RELEVANT BACKGROUND

[10] Mr Shea was appointed Head Cook at the Jabiru Mine in Western Australia on 14 February 2012. For the purposes of these reasons for decision, the parties referred to the workplace as the “Jaguar” site and I shall do so.

[11] The Applicant attended a Corporate Induction at the Employer’s Head Office. Company policies were discussed and a corporate induction booklet was issued to the Applicant. HACCP and Food Safety questionnaire was completed and signed by the Applicant.

[12] On 26 August 2012, Mr Shea was appointed Chef/Relief Manager at the Jaguar site. Part of the responsibility of Relief Manager is to run the wet mess bar, Jaguar site, in the absence of the Operations Manager.

[13] Mr Shea was the Relief Manager and was required to run the bar between 4 and 31 December 2012 because Mr Clark was on leave.

[14] On 30 December 2012, Ms Keenan, who was also working in the bar, became involved in an incident relating to stock reconciliation. The amount involved in the incident was $468.50.

[15] On 3 January 2013, Mr Calkins became aware, through Mr Clark, that Ms Keenan had paid $468.50 from her EFTPOS following the stock reconciliation. Mr Calkins referred the matter to Mr Chibale.

[16] Ms Keenan provided a statement dated 4 January 2013 of the incident to the Human Resources Department.

[17] A short summary of her statement is that she noticed Mr Shea running up a tab between Thursday and Saturday for his own drinks and those he shouted for others. Mr Shea told Ms Keenan he would pay for them in the morning. On Sunday 30 December 2012, Mr Shea advised Ms Keenan that “things were out on the stock take”. Mr Shea initially indicated it was $200. Ms Keenan offered to assist in the stock count but Mr Shea declined her assistance. Mr Shea advised that he would send off the figures to head office and she would most probably lose her job. Ms Keenan offered to pay as she did not want to lose her job for $200 or something that she had not done. Mr Shea grabbed her card and told her afterwards that the amount was “$460”. Ms Keenan felt that she had been manipulated into paying the amount because she may have lost her job. 1

[18] On 4 January 2013, Mr Clark, Project Manager, at the Jaguar site advised Mr Calkins:

“There is also no record on the journal of the $468.00 Courtney was charged being run through the till.

I am unable to locate the till journal for between 26.12 and 31.12 to check sales and am unable to locate the 22 tape for WZ.” 2

[19] On 7 January 2013, Ms Keenan, Mr Chibale and another Human Resources representative met and discussed Ms Keenan’s statement.

[20] On 8 January 2013, Mr Chibale advised Mr Calkins that he had spoken to Mr Shea (who was then on leave) and confirmed with him a “meeting for further investigation Tuesday 29th January”. 3

[21] On 15 January 2013, Mr Shea telephoned Mr Chibale to “know whether he was going back to site or not”. 4

[22] Mr Chibale informed Mr Shea that it was a “normal investigation” and the Employer was seeking “his side of the story regarding Courtney’s [Ms Keenan] statement of how he obtained $468.50 from her bank card for a bar shortage and bar operations for between 26.12.12 and 31.12.12”. 5

[23] During the telephone conversation, Mr Shea demanded emails of what was to be discussed at the meeting. Mr Chibale declined to provide the details. 6

[24] On 29 January 2013, the Applicant met with Mr Calkins, Mr Chibale and Ms Mills, Human Resources Assistant. Ms Mills made file notes of the meeting.

[25] Following the meeting, Mr Shea was advised that his employment was being terminated.

[26] On 31 January 2013, the Employer confirmed, in writing, its reasons for terminating Mr Shea’s employment. The relevant parts of the correspondence are as follows:

“As discussed on 29th January 2013, this serves to confirm the reasons for termination of your employment contract with Action Industrial Catering (AIC) Pty Ltd.

It was brought to my attention that between 24th and 30th December 2012 inclusive, in your role as Relief Manager at Jaguar Site, you obtained $468.50 from a Bar service employee to cover a Bar shortage.

...

Considering the facts it is clear that you abused our trust in maintaining a “drinks tab” and presented no evidence during our meeting that you had paid your “drinks tab”.

You engaged in conduct unbefitting of a manager when you refused to allow the Bar Service employee to recount with you, maintained a “drinks tab” and claimed to have paid without anyone witnessing this.

You engaged in conduct capable of causing a risk to business relations; when you intimidated and obtained $468.50 without written consent.

You brought the name of the company in disrepute and broke our “Employee Code of Conduct Policy”. 7

[27] The correspondence also outlines the results of the investigation into the incident.

[28] Mr Shea was provided with one week’s wages in lieu of notice.

RELEVANT STATUTORY FRAMEWORK

[29] It is not in dispute that Mr Shea is protected from unfair dismissal pursuant to s.382 of the FW Act and that the application was made within the statutory timeframe in paragraph 394(2)(a) of the FW Act.

[30] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

● 385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) …
(d) …

[31] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:

● 387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.

APPLICANT’S CASE

[32] The Applicant submits:

● He has worked in bar management for over 20 years in his own business;

● he has no experience working for an employer;

● he has no experience of what he describes as dealing with “workplace theft”. Mr Shea has only dealt with such situations in his own way;

● it was his belief that it was his responsibility to manage the shortage and Ms Keenan;

● the Employer should have provided training in its procedures and how to manage Ms Keenan;

● he was suspicious that Ms Keenan was responsible for the stock shortage and had offered her own money to cover the shortage;

● Ms Keenan is an alcoholic;

● he did not have sufficient evidence to justify labelling Ms Keenan as a thief but took steps to take her away from the bar area;

● “while the action taken by [himself] in handling the situation may not have been the procedures that the company would have liked him to follow. The company had not communicated to him what he should do in the event of such a situation” 8;

● he requested to be trained in all areas of bar management by email on 17 September 2012;

● a “drinks tab’ was in place when he was handed over management of the bar. If this was not the practice, a simple direction to him would have resulted in the practice being stopped.

● contrary to Ms Keenan’s statement, Mr Shea did pay for his drinks tab;

● he was only the relief manager, and the appropriate response would have been to revert him back to his role as Head Cook;

● he was not given an opportunity to respond at the meeting on 29 January 2013 and was not advised that it related to his conduct;

● he was dismissed without proper investigation;

● the decision to terminate his employment was made prior to the meeting on 29 January 2013.

EMPLOYER’S CASE

[33] The Employer submitted the Applicant:

● attended a corporate induction session in which the Employer’s policies were communicated and discussed;

● received one-on-one coaching and training with the Operations Controller during 5-8 October 2012;

● was trained in stock control;

● was the holder of an Approved Manager’s Liquor License;

● at the meeting on 29 January 2013 emphasised Ms Keenan had lost her keys and there were missing phone cards, tobacco, wine and cigarettes;

● acknowledged he maintained a drinks tab which he had paid without any witnesses present;

● responded to extracts of Ms Keenan’s statement by saying “she’s lying”;

● responded to the Employer’s no credit policy by saying “everybody does it, and that members of the mine were permitted to make small purchases on credit and these were to be recorded in a log book”;

● when asked why he did not seek support from Head Office, replied that it was closed and on holiday. The Employer rejects this assertion; and

● accepted that he drank “small amounts of mild strength beer only” and “would square his own tab” and that, “it was not the best way of doing this transaction” 9.

[34] Finally, the Employer relied upon the statements of Mr Calkins, Mr Clark, Mr Spence and Ms Keenan regarding the incident and other matters relating to Mr Shea’s conduct.

CONSIDERATION

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[35] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[36] The decision to terminate Mr Shea’s employment as set out on 31 January 2013 falls into two parts. Firstly, his overall conduct between 24 and 30 December 2012 as Relief Manager, and secondly, Mr Shea’s conduct in relation to an incident with Ms Keenan regarding a stock take incident.

[37] I now turn, in the first instance, to Mr Shea’s broader conduct between 24 and 30 December 2012.

[38] Mr Clark returned from his leave and recommenced work as Camp Manager on 1 January 2013. Mr Clark provided written and oral evidence. I found Mr Clark’s evidence credible and straightforward.

[39] The following oral evidence of Mr Clark was not challenged or questioned by Mr Shea.

“So at the time that you finally left Mr Shea to manage and swim alone, were you confident that he could manage the bar?---I was confident that he could do that. And what's more, I also offered support while I was on my break; any questions he had, I was always there to answer them for him.

Were you confident about how he could do stocktake?---I certainly think he had a very good idea on how to do it.

Can you tell the Commissioner what you found out when you did a re-count of the stocktake on 31st, or is it on 1st? You know?---It was on 1 January. I went back to the stocktake that John had performed because the stocktake I'd conducted the following week was vastly short. So I found his count sheet, complete with the re-count that he'd done, entered those figures into the stocktake that he'd submitted to head office, and came up with a significant shortage; whereas the stocktake that he'd submitted, there was a minimal shortage.

Did Mr Shea present to you a handover with regards the shortage at the time - - - ?

---No, it was not discussed.

That was not?---I was completely unaware of any shortage.

Did you authorise anybody on site, including Mr Shea, to maintain bar tabs?---No, I'd never authorise tabs.

Did you notice anything strange with the Z reading tab when you did the re-count?---One of the first things I did was go and try and find - locate the Z120, which tells us how much stock has gone through the till. There are two copies of those, so I wanted to make sure that the correct figures had been put into the stocktake. I could find neither the original or the one from the journal which remains locked in the bar, so I was unable to verify that his figures were in fact correct.

Given that you did the re-count, were you confident of the figures that Mr Shea had submitted to head office?---There was a huge variance, so no, I don't think the figures submitted were accurate.” 10

[40] This evidence regarding the cash register “till” journal is consistent with his written witness statement provided to the Applicant as part of the procedural directions. This written evidence was also unchallenged by the Applicant.

[41] Mr Shea claims “over 20 years experience in the hospitality industry. I have owned and operated 5 successful businesses including:

● Lake Hawea Hotel (turnover of $2.5m)
● Makarora Wilderness Resort (turnover $1.7m)
● Ripples Restaurant (turnover $400k)” 11

[42] Mr Shea was relieving Mr Clark and worked in the bar from 4 to 31 December 2012. The incident with Ms Keenan occurred on her fourth night of working with Mr Shea - that is, on 30 December 2012.

[43] The Applicant claimed in his application to the Commission that he “had no specific training on the bar or bar processes”. Further, “prior to being advised of credit policy at the interview [on 29 January 2013], the Applicant had never been advised of the policy” 12. This written submission by the Applicant was restated in oral evidence.

[44] In answer to my questions in the hearing, Mr Shea agreed that “fundamental [to] running a bar would be the need to understand credit policies and stock take” 13. Further, as you would expect for somebody with 20 years in the hospitality sector, he was not unfamiliar with credit and stock take policies in a bar14.

[45] While Mr Shea claims he had no specific training, with the exception of stock control, at the hearing, the Commission was provided with examples of training given to the Applicant, other than that provided by Mr Clark, including “operations of the wet mess”, the “process of disciplining staff” and being reminded that support was available to him from Head Office. This information is dated 7 January 2013 and was part of the investigation into Ms Keenan’s complaint, however, Mr Shea’s response in cross-examination is that the training “had nothing to do with the policies and procedures regarding bar shortage” 15 and “I never saw one [policy] regarding bar shortage, and so where is it.”16

[46] In short, what Mr Shea is submitting to the Commission is that in the absence of the Employer having a specific “bar shortage” policy to which he was trained in, then his conduct was excusable. The practical realities are that no employer will have policies, operational guidelines or procedures to cover every eventuality in the workplace.

[47] Given Mr Shea’s 20 years in the hospitality industry, it is unlikely that this was the first occasion that he faced regarding a bar shortage. In fact, his submission is that he “worked in the area of bar management for 15 years” and “dealt with the situation in his own way”. 17

[48] Finally, Mr Clark highlighted in his evidence that Mr Shea was “missing the point” by focussing on the two days of training with Mr Abel. With the exception of his first week in the position of Relief Manager, Mr Clark and others provided a “vast amount of training” between August and December 18. Mr Shea did not disagree with this specific evidence.

[49] I do not find that the Employer’s lack of a specific “bar shortage” policy or alleged shortcomings in training contributed to the way he conducted himself when faced with the bar shortage.

[50] I now turn to Mr Shea’s conduct of creating a drinks tab for himself contrary to the Jaguar site “No Credit Policy”.

[51] Mr Shea does not contest that he maintained “a tab at the site bar” and that “everybody does it”. Mr Shea relies upon his lack of training, unawareness of the “No Credit Policy” and an “inherited” policy as a defence to his conduct.

[52] Mr Clark gave evidence that he did not authorise bar tabs. Mr Shea did not challenge this evidence. For this reason, I am satisfied that Mr Shea did not “inherit” a credit policy which allowed a drinks tab, with the exception of the emergency response team.

[53] I now turn to the claim by Mr Shea that he had never sighted the “Code of Conduct” policy which states clearly, “credit will not be permitted on premises” 19.

[54] Mr Shea did not dispute the photographic evidence by the Employer that the code of conduct was almost on top of the bar along with other documents entitled “it’s against the law”, “if you are asked to leave this venue” and “antisocial behaviour on licensed premises”.

[55] It is difficult to reconcile the Applicant’s broad and successful experience in the hospitality industry, 15 years experience working a bar, training, partial completion of the Western Australian Hotels Association course in Management of Licensed Premises and a visible signage of no credit, with a claim that he had no knowledge about the Employer’s policy in this area.

[56] I am satisfied that, contrary to the assertions of Mr Shea, the Employer has a no credit policy in the Jaguar site bar, and that the Applicant did not, on the evidence, inherit a practice contrary to this from Mr Clark. Further, I am satisfied that Mr Shea’s conduct was contrary to this policy.

[57] I now turn to the second aspect of the letter of termination and that is Mr Shea’s conduct as Relief Manager with Ms Keenan on Sunday 30 December 2012.

[58] Ms Keenan produced for the Employer on 4 January 2013, her version of events from 24-30 December 2012 while working with Mr Shea.

[59] In the lead up to the stock take incident, Ms Keenan sets out her observations as her estimates of what Mr Shea was drinking each night, how many drinks he was “shouting” others, what he took home, his state of intoxication. Each night when Ms Keenan was working, “John would run up quite a tab...and telling me he would pay in the morning when he was working in the bar”.

[60] Ms Keenan states:

“The whole drama began on Sunday afternoon when I got into work (bar) about 4.50 pm, John was acting bazaar (sic) and stressed and said a lot of things were out in the stock take...He told me it was only a few hundred dollars, I tried to help recount or settle it, he said no he had done it ten times. I was more than willing to count it myself but John said no and that he would have to go straight off now to send to head office and I would probably lose my job...I freaked out that he said I would lose my job as I had only been in there for 3 nights, I said I will just pay it there is no way I’m losing my job over something I haven’t done or $200. And straight away without thinking he grabbed my card and said great...I had never seen him pay a bill but I felt a bit manipulated by the fact that he said it was my job.

In anger and shock I sat outside while he put it through. I came back in when he put it through and I entered, I asked how much it was (which I should have 1st) and he replied A LOT, I said well how much “460” I almost cried and he said “I really hate to do this to you but it will be our asses if it’s not fixed”. 20 (my emphasis)

[61] In oral evidence, Ms Keenan states that payment was made because Mr Shea said “well, this is what’s going on with the money. We’re short. I’ve got to get figures to Perth. You need to pay it. You’re working in the bar, it’s your responsibility. You’re going to lose your job if it is not sorted out”. 21 This evidence was not the subject of cross examination by Mr Shea. Also, the evidence of Mr Spence relating to these circumstances is consistent with Ms Keenan’s evidence of the incident.

[62] Mr Spence’s evidence was based on an email sent to Mr Clark on 3 January 2013 which has subsequently been converted into his witness statement dated 27 February 2013:

“John did his bar stock take the last few days on site...Initially it was around $1200 dollars out...John recounted and re-entered his stock and figure 4 or 5 times, each time the figure came down a bit.

Seeing that he was stressed and having trouble I helped him count again, at this point he was still 8 or 900 short. John was by this stage stressing as he had to get his figures into Action, Head Office.

It was then that he decided someone must be stealing.

...he had words with Courtney Keenan who was on bar shift...he decided she must be to blame”. 22

[63] Mr Spence gave further evidence in assessment of Ms Keenan’s work value and integrity.

[64] In cross examination, Mr Shea, with the exception of one point of clarification, does not contest Mr Spence’s facts but attacks his credibility on the basis that Mr Spence is now the Relief Head Chef/Camp Manager and had benefitted from his [Mr Shea] dismissal. I am satisfied there is no relationship between the two events.

[65] Mr Spence gave evidence that subsequently Mr Shea spoke to him and was relieved that a stock reconciliation had occurred - “he was happy and openly relieved” 23.

[66] Mr Shea in his statement of facts asserts:

● he did not ask Ms Keenan to pay the outstanding monies;

● he at no time instigated the idea of Ms Keenan to pay the outstanding monies;

● Ms Keenan did not ask to do a count of the stock;

● he did not inform Ms Keenan that she would lose her job if she did not pay the shortage; and

● Ms Keenan has made these false allegations is an attempt to discredit Mr Shea and avoid any allegations that he may have made against her on his return from leave.

[67] The two people involved in the incident which “triggered” Mr Shea’s eventual dismissal have a differing recollection of events.

[68] Ms Keenan in cross examination agrees that she offered to pay $200 but this was because she did not want to lose her job 24. Mr Shea would help himself to drinks and not write them down25. Further, there was no tab system26.

[69] Mr Shea submitted a number of matters to the Commission which went to the credibility of Ms Keenan. These matters included that Ms Keenan was an alcoholic and he suspected her of theft.

[70] When asked about her drinking, it was Ms Keenan who gave evidence in cross examination that it was Mr Shea who acknowledged he was an alcoholic and not her.

[71] Secondly, Mr Shea avoided asking Ms Keenan if she was responsible for the stock shortage loss but instead asked Ms Keenan if she recalled him raising the possibility of someone taking her bar key and entering the bar. Ms Keenan’s evidence in response was direct and to the point. No other person would know it was the bar key, and even if by chance that did occur, how would a person “go into the bar without being seen...its right next to the dongas, so that doesn’t even make sense” 27. Finally, while she could not locate the bar key overnight, it was in a cupboard in her room and not accessible28.

[72] Mr Shea was the Relief Manager. He was responsible for the stock and its reconciliation with receipts. The manner in which he attempted to reconcile the stock was not consistent with his role or responsibilities. In the first instance, he refused Ms Keenan’s offer to recount the stock. In view of him coming to the conclusion that he was not responsible for the stock shortage, it was only fair that Ms Keenan be given the opportunity to recount the stock. He did not provide her with this opportunity.

[73] Instead of doing what he suggested he would do and submitting the stock figures to Head Office, he commented to Ms Keenan that she would most probably lose her job. It was only in these circumstances that Ms Keenan offered to pay. It is notable that Mr Shea does not contest Ms Keenan’s evidence that she was led to believe by Mr Shea that the cash shortfall would only be $200 and not $468.50. In my view, it is understandable why Ms Keenan felt that she was being manipulated firstly in terms of losing her job, and secondly, over the amount involved. As a manager, it was Mr Shea’s responsibility, and fairness dictates, to advise Ms Keenan of the amount before putting it through the cash register. He did not do so.

[74] Finally, I express some unease with the fact that given the circumstances regarding the stock shortage, and the incident with Ms Keenan, that both the original and copy of the cash register receipt readings are missing.

[75] In conclusion, I am satisfied that the Employer had sound, defensible and well founded reasons to terminate Mr Shea’s employment in view of him acting contrary to the no credit policy and his explanation for this conduct. Secondly, that the Employer had a valid reason to dismiss the Applicant following its investigation into his failure to exercise proper managerial responsibility in the incident with Ms Keenan.

s.387(b) - notification of the reason for termination of employment

[76] The Applicant was notified of the reasons for his termination of employment verbally on 29 January 2013 and this was confirmed in writing on 31 January 2013. I am satisfied that Mr Shea was notified of the reasons for termination of his employment.

s.387(c) - opportunity to respond

[77] In his submission, Mr Shea states that when he was on leave “he received an unspecific email calendar invitation to a meeting on 29 January 2013. This invitation contained no content”. 29 However, in his statement dated 29 January 2013, Mr Shea states, “I got an email on the 6th January to say we need to a meeting in the Perth Office with HR to discuss the payment made by Courtney [Ms Keenan] on the 30th of December”.

[78] On 14 January 2013 Mr Shea discussed the meeting of 29 January 2013 with a work colleague, Mr Riwai, who provided a statutory declaration in which Mr Riwai declares that “John then told me he had a meeting with HR...and guessed it was about the stock Courtney had paid for. He then went on to tel (sic) me the full story”. 30

[79] I have a file note of Mr Chibale dated 15 January 2013 which was not contested the file note states “Reminded him that the scheduled meeting was about Courtney’s statement of how he obtained $468.50 from her bank card for a bar shortage and bar operations for between 26.12.12 and 31.12.12...Told me to have “my duck in the role” when he attends the meeting”. 31

[80] Finally, Mr Shea’s statement dated 29 January 2013 clearly indicates that Mr Shea was given not only the details of the allegation by Ms Keenan but was also asked and responded to company policy, bar tabs, his drinking in the bar, his conduct and what he described as the inherited policy.

[81] I am satisfied that the Employer put to Mr Shea the substantive allegations and he had the opportunity to respond.

s.387(d) - support person

[82] The Applicant does not allege that the Employer unreasonably denied him a support person present at the discussions on 29 January 2013.

[83] I am not satisfied that Mr Shea’s statement of fact that the Employer gave “no notice prior to interviewing him that he was to be questioned in regard to his conduct and thus gave him no opportunity to obtain representation at the interview”. 32 For the reasons set out in paragraphs [77] to [80] Mr Shea had approximately three (3) weeks to obtain representation and he clearly knew that his conduct was an issue.

s.387(e) - unsatisfactory performance

[84] This application essentially confines itself to Mr Shea’s conduct over a period of four (4) days. The matters involved do not go to issues of Mr Shea’s overall conduct.

s.387(f) - size of enterprise; and

s.387(g) - Human Resources

[85] The Employer has a specialised human resources department.

[86] I am satisfied that the Employer’s investigation of Ms Keenan’s complaint and Mr Shea’s conduct between 24 and 30 December 2012 was reasonable and the decision making process which led to Mr Shea’s dismissal was fair.

[87] Mr Clark telephoned Mr Spence on 1 January 2013 regarding the stock shortage. Mr Spence followed this up with an email on 3 January 2013. In view of the manner in which the stock was allegedly reconciled, Ms Keenan was asked to provide a statement which she did on 4 January 2013.

[88] On 6 January 2013, the Employer advised Mr Shea of the substantive nature of the complaint as set out by Ms Keenan. On 7 January 2013, Ms Keenan was interviewed by the Human Resources Department.

[89] On 29 January 2013, Mr Shea was interviewed, and after consideration of his conduct and responses, was terminated.

[90] Where there are differences of recollection or facts in dispute, as there have been in this application, the Employer, similar to the Commission, has the advantage of seeing the key protagonists in arriving at a conclusion.

[91] The procedure adopted by the Employer was fair. It was not established that the investigation took into account material which would have flawed the process. The Employer made a decision on the competing facts as presented by both parties. Mr Shea has made some criticisms of the process, but in my view, these do not undermine the overall fairness of the investigation. I particularly do not accept the submission by Mr Shea that the Employer made a pre-determined outcome prior to the 29 January 2013 meeting.

[92] My overall impression is that, while it is an easy assertion to say that the process was not perfect, the Employer dealt with the matter without delay and did not deprive Mr Shea of the opportunity to put his case.

s.387(h) - other matters

[93] I have not taken any other matters into consideration.

CONCLUSION

[94] In conclusion, for the reasons set out above, I am satisfied that Mr Shea’s dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed and an order to this effect is issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Appearances:

J Shea, the Applicant on his own behalf.

D Chibale on behalf of the Respondent.

Hearing details:

2013:

Perth,

20 June.

 1   Exhibit R8

 2   Exhibit R2

 3   Exhibit R2

 4   Exhibit R2

 5   Exhibit R2

 6   Exhibit R2

 7   Exhibit R4

 8   Exhibit A1

 9   Exhibit R3

 10   Transcript PN265-PN272

 11   Exhibit R4

 12   Exhibit A2

 13   Transcript PN171

 14   Transcript PN173

 15   Transcript PN117

 16   Transcript PN119

 17   Exhibit A1

 18   Transcript PN306

 19   Transcript PN122

 20   Exhibit R8

 21   Transcript PN355

 22   Exhibit R7

 23   Exhibit R7

 24   Transcript PN460

 25   Transcript PN464

 26   Transcript PN469

 27   Transcript PN444

 28   Transcript PN445

 29   Exhibit A1

 30   Exhibit A4

 31   Exhibit R2

 32   Exhibit A2

Printed by authority of the Commonwealth Government Printer

<Price code C, PR540741>