Mrs Tania Cooper v Dimmeys Stores Pty Ltd
[2012] FWA 3397
•24 MAY 2012
[2012] FWA 3397 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Tania Cooper
v
Dimmeys Stores Pty Ltd
(U2011/2167)
COMMISSIONER LEWIN | MELBOURNE, 24 MAY 2012 |
Unfair dismissal- breaches of company policy - valid reason - summary termination - unjust - quality of evidence - objective evaluation by Tribunal
[1] This decision concerns an application made by Ms Tania Cooper under s.394 of the Fair Work Act 2009 (“the Act”), arising out of the termination of Mrs Cooper’s employment with Dimmeys Stores Pty Ltd (“Dimmeys”). Mrs Cooper alleges that the termination of her employment was harsh, unjust and/ or unreasonable and seeks relief by way of an order of reinstatement in her employment.
[2] Mrs Cooper commenced employment at Dimmeys on 27 February 2011 as a shop assistant at the Ulverstone store in Tasmania. Mrs Cooper was summarily dismissed from her employment with the respondent on 7 October 2011. An application was filed on Mrs Cooper’s behalf, under s.394 of the Act, on 21 October 2011 by the Shop, Distributive and Allied Employees Association (“ the SDA”). The matter was listed for conciliation before a Fair Work Conciliator on 21 November 2011. The matter did not settle.
[3] Directions were sent to the parties on 8 December 2011. The applicant was directed to file submissions, witness statements and other evidentiary material on which she intended to rely by 9 January 2012. The respondent was directed to file submissions, witness statements and other evidentiary material on which it intended to rely by 30 January 2012.
[4] The applicant did not comply with the directions by 9 January 2012. Subsequent inquiries by Fair Work Australia’s Unfair Dismissal Branch on 10 January 2012 identified that the due date of submissions was overlooked by the SDA.
[5] Amended Directions were sent to the parties on 11 January 2012 directing the applicant and respondent to file submissions in the Tribunal by 13 January and 3 February, respectively.
[6] The matter was heard at the Devonport Magistrates Court on 9 March 2012 as part of a regional hearings roster to which I was assigned and later in Melbourne, via video link to Devonport, on 11 April 2012, as the matter remained part heard at Devonport on 9 March 2012.
[7] The applicant and respondent filed closing submissions on 27 April 2012 and 1 May 2012, respectively. Contained within the respondent’s submissions is an application for costs pursuant to s.611(2)(b) of the Act.
[8] The following people gave evidence in the proceedings:
Tania Cooper | Applicant |
Karen Martin | Assistant Manager, Dimmeys and Applicant’s Sister |
Craig Maney | Store Manager, Dimmeys |
Renee Black | Area Manager, Dimmeys |
Statutory Provisions
[9] The Act sets out the considerations which must be taken into account when determining an application for an unfair dismissal remedy.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
Valid Reason
[10] I must first determine whether or not there was a valid reason for the termination of Mrs Cooper’s employment.
[11] The respondent cites the following reasons for the termination of Mrs Cooper’s employment in the Form F3 - Employer’s response to application for unfair dismissal remedy:
- Breaches of company procedures
- Misappropriation of company assets
- Misrepresentation as to sibling relationship to a store employee.
[12] The letter notifying Mrs Cooper of the termination of her employment, dated 7 October 2011, cites the following reasons for termination:
- Misrepresentation of sibling relationship
- Breaches of register operation policies
- Breach of checkout rules policy
- Breach of discounts policy
- Breach of staff purchases policy
- Breach of price checking policy
- Breach of undercharging of sales policy.
Misrepresentation of sibling relationship
[13] In her application for employment with Dimmeys Mrs Cooper was required to complete a recruitment form that asks prospective employees if they are related to any Dimmeys employees. The form advises prospective employees that it is Dimmeys policy that relatives do not work in the same store. Mrs Cooper answered “no” to the question. This answer was false. Mrs Cooper is related to Ms Karen Martin who was the Assistant Manager of the Dimmeys Store in Ulverstone at the time Mrs Cooper completed the form
[14] It is the evidence of Mrs Cooper that Mr Maney, knowing of her relationship with Ms Martin, instructed her to answer “no” and undertook to advise Dimmeys head office of the relationship between Mrs Cooper and Ms Martin.
[15] Mr Maney denies this. I accept Mr Maney’s evidence. On the evidence before me I find it inherently improbable that Mr Maney would have done so.
Other Breaches
[16] On my view of the evidence the respondent has established that Mrs Cooper failed to follow the company’s policies and procedures in relation to cash register operations during her employment. The various breaches of company policy constitute a valid reason for the termination of Mrs Cooper’s employment. I find that all of the alleged breaches of company policy are made out on the evidence, except, on what is before me I cannot be satisfied that Mrs Cooper misappropriated company funds.
Notification of the reasons for termination
[17] Mrs Cooper was summarily dismissed on 7 October 2011 following an interview at which the breaches of company policy were put to her.
Opportunity to respond
[18] Mrs Cooper had the opportunity to respond to the breaches of company policy put to her prior to her dismissal on 7 October 2011.
Support person
[19] Present at the meeting of 7 October 2011 were Mrs Cooper, her union representative Andrew Coyle, Dimmeys Area Manager Renee Black (by telephone) and Dimmeys Compliance Officer Ken Hampson (by telephone). There was no refusal of the opportunity to have a support person present at discussions related to the termination of Mrs Cooper’s employment.
Warned about unsatisfactory performance
[20] This is irrelevant to the matter as Mrs Cooper’s employment was terminated for reasons of conduct rather than capacity. However, for my purposes, if the breaches of company policy as I have found them were to be characterised as poor or unsatisfactory performance I find there was no warning in the relevant sense.
Size of employer
[21] Dimmeys is a medium sized employer. The size of the company had no relevant effect on the procedures followed in relation to the termination of Mrs Cooper’s employment.
HRM expertise
[22] Dimmeys, it appears, does not seem to have applied specialist human resource management expertise. Mr Maney suggested that Mirell Moran, HR and Payroll Officer, was present at the meeting of 7 October 2011. 1 However, the evidence does not elaborate as to the application of any HR expertise with respect to the termination of Mrs Cooper’s employment. Rather, local store management, an “Area Manager” and a “Compliance Officer” dealt with the termination of Mrs Cooper’s employment. Nevertheless, the procedures which were followed by Dimmeys in relation to the termination of Mrs Cooper’s employment were not greatly affected by this, except perhaps in relation to the soundness of a conclusion that Mrs Cooper had misappropriated company funds or property as asserted in the Form F3 - Employer’s response to application for an unfair dismissal remedy, as referred to above.
Other relevant matters
[23] Mrs Cooper maintains that any shortcomings in her register operation were because of a lack of training. I reject this submission. The evidence before me does not support this.
[24] There are no other matters I consider relevant.
Harsh, unjust or unreasonable
[25] I am not satisfied that the termination of the employment of Mrs Cooper was harsh or unreasonable. Mrs Cooper did not comply with essential procedures for the sale of goods and sound operation of the company’s sales and cash register system. This is a fundamental requirement for the viability of a retail business. The extent of Mrs Cooper’s non-compliance with the procedures reinforces the validity of the reason for the termination.
[26] However, the decision to terminate Mrs Cooper’s employment summarily, without notice, was unjust. A summary termination can only be justified where the conduct of an employee is serious and wilful. In judging whether or not summary termination was just in the factual circumstances of this case it is necessary for the Tribunal to reach its own conclusion on an objective basis according to the evidence before it. 2
[27] In the case of Byrne and Frew v Australian Airlines 3 the McHugh and Gummow JJ said as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 4
[28] In order for the termination of Mrs Cooper’s employment to be justly terminated for serious and wilful misconduct, rather than by the giving of notice or payment in lieu thereof, it would seem to me that the evidence would need be of sufficient quality 5 and substance to satisfy the Tribunal that, more probably than not, Mrs Cooper wilfully misappropriated the property of Dimmeys in the course of her various breaches of company policies.
[29] In this respect Dimmeys made the following submissions:
“In these circumstances the breach of policy relating to line deletes was deliberate, extensive and persistent (see R6). It constituted an attack upon a primary line of defence available to the Employer against theft by staff . It was a serious breach whether or not it was associated with the actual taking of cash from the register, either by the Applicant or somebody else in concert with her.”
[30] While I agree that the breaches of policy were serious and constitute a valid reason for the termination of Mrs Cooper’s employment I do not agree with the proposition inherent in the submission that failure to operate the sales and cash register system in accordance with policies and procedures can be automatically equated with wilful misappropriation of the employer’s money or property. The latter is a more serious offence which would justify summary dismissal.
[31] In my judgement, the evidence before me is insufficient to persuade me that on the balance of probabilities Mrs Cooper misappropriated the employer’s money or property.
[32] Accordingly, in my judgement, to the extent that the termination of Mrs Cooper’s employment was based on such a conclusion it was unjust. On my view of the facts the employer was convinced that Mrs Cooper had misappropriated cash or property and that this justified summary dismissal, which is not adequately supported by the evidence before the Tribunal. To the extent that the dismissal was effected summarily independently of such a conclusion it was unjust.
Remedy
[33] Reinstatement is inappropriate in the circumstances having regard to the loss of trust associated with the reasons for the termination of Mrs Cooper’s employment.
[34] In my view, had Mrs Cooper’s employment not been terminated summarily it would have nevertheless, with valid reason and procedural fairness, been terminated on appropriate notice, being a period of one week.
[35] To order Dimmeys to pay an amount in lieu of such notice would have no effect on the viability of Dimmeys. Mrs Cooper’s service is the basis of a remedy of an amount in lieu of notice. That amount in my judgement is the amount of remuneration Mrs Cooper would have received during the relevant period of notice but for the summary termination of her employment. There is no evidence of efforts at mitigation. However, having regard to the reasons for and nature of the remedy I consider appropriate, this factor does not weigh against an order for the payment of an amount in lieu of notice. Moreover, the respondent does not deal with this matter. There is no relevant remuneration earned between the date of dismissal and the making of an order that Dimmeys pay Mrs Cooper one weeks pay or between the making of such an order and the payment of an amount so ordered. There are no other matters I consider relevant.
[36] In the circumstances of this case and having regard to the nature of the remedy no deduction on account of contributory misconduct is appropriate. Such a reckoning is inherent in my reasoning that the misconduct comprising a valid reason for the termination of Mrs Cooper’s employment nevertheless required termination on notice or payment in lieu thereof in order for the termination of Mrs Cooper’s employment to be just.
[37] Accordingly, an order will issue that Dimmey’s pay Mrs Cooper an amount equal to one week’s pay less appropriate taxation.
Costs Application
[38] The respondent’s application for a costs order is invalid. Section 402 provides as follows:
“402 Applications for costs orders
An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 401, must be made within 14 days after:
(a) FWA determines the matter; or
(b) the matter is discontinued.”
[39] There is only one period within which such an application can be made. That period does not begin until the day after this matter has been determined by the Tribunal.
COMMISSIONER
Appearances:
P Griffin of the Shop, Distributive and Allied Employees Association for the Applicant.
C Garwood and D Crampton for the Respondent.
Hearing details:
2012.
Devonport:
March 9.
2012.
Melbourne:
April 11.
Date of final submissions:
Applicant: 27 April 2012
Respondent: 1 May 2012
1 Transcript, PN1036.
2 McLauchlan v Australian Meat Holdings Pty Ltd, 5 June 1998, Print Q1625.
3 (1995) HCA 24.
4 Ibid, PN128.
5 1. See Briginshaw v Briginshaw [1938] HCA 34 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66.
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