Ms Angelina Jasinski v Navitas English Pty Ltd
[2011] FWA 3687
•10 JUNE 2011
[2011] FWA 3687 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Angelina Jasinski
v
Navitas English Pty Ltd
(U2010/13659)
COMMISSIONER DEEGAN | CANBERRA, 10 JUNE 2011 |
Termination of employment - Alleged neglect of duties – Breach of cash handling procedure - Whether harsh, unjust or unreasonable.
Introduction
[1] This matter arises from an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) filed with Fair Work Australia on 27 October 2011 by Ms Angelina Jasinski (the applicant) in respect of the termination of her employment by Navitas English Pty Ltd (the respondent) 1 on 21 October 2010.
[2] The respondent filed a response to the application and a telephone conciliation conference was conducted on 22 November 2011. The matter was unable to be settled by conciliation and the matter was listed for arbitration. The respondent did not object to Fair Work Australia’s jurisdiction to determine the application.
[3] In accordance with directions both parties filed submissions and witness statements. At the hearing the applicant was represented by Ms Matthews of the Independent Education Union (IEU) and Mr Frost represented Navitas. At the conclusion of the witness evidence the parties chose to deliver final submissions orally on Thursday, 31 March 2011.
Background
[4] The applicant had been employed as a teacher with the respondent, teaching English as a Second Language, since 1999. Initially employed as a casual the applicant became a permanent employee in 2003.
[5] On 16 February 2010 the applicant received a “first and final warning” following a meeting attended by the applicant and her union representative. The warning related to the applicant’s failure to abide by the respondent’s cash handling policy and procedures and was the result of a number of incidents which had occurred over the previous month. On 21 October 2010 the applicant attended a meeting concerning her failure to deal properly with money received by her from a student for an excursion which the student did not attend. After the meeting the applicant was notified that her employment was to be terminated.
Applicant’s evidence
[6] The applicant filed a statement in support of her application. 2 During the hearing a bundle of documents relating to matters contained in the applicant’s statement was also tendered by Ms Matthews.3
[7] It was the applicant’s evidence that she was “shocked” when she received a letter 4 on 12 February 2010 concerning a disciplinary interview. Further she claimed that she had signed documents relating to the outcome of the meeting because she was intimidated. It was her understanding, however, that she had received the first and final warning for failing to apply due process in relation to soliciting, receiving and documenting the collecting of cash from students. The applicant claimed that there were no written policies in relation to any of these issues and that teachers at her workplace were never required to issue receipts in relation to the collection of money.
[8] The applicant’s statement contained her response to the allegations outlined in Ms Alison Macleod’s letter to her of 12 February 2010 headed ‘Matters to be discussed at meeting involve (sic) serious breaches to procedure when handling cash’. 5
[9] The applicant’s evidence as to those allegations was:
- She had informed her students that the College would be fundraising for the Haiti earthquake appeal but that “they [the students] just wanted to do it then and there. I did not want to dampen their initiative”. The applicant stated that she had immediately given the money she collected to the Office Coordinator and denied ‘mishandling’ the money.
- So far as the allegation of her mishandling money collected for an excursion to the Sydney Aquarium was concerned, the applicant stated that, although she had told Ms Macleod that she had cancelled the excursion due to a personal health issue, she had actually cancelled it because “the students’ language was not really ready, the bilingual support worker was complaining about the cost and I simply lost enthusiasm”. 6 It was also her evidence that she returned one envelope of money to the Office Coordinator after cancelling the excursion but forgot that she had two more envelopes in her desk.
[10] The 12 February letter also dealt with the matter of an invoice received by the College for books the applicant had ordered from the Bridge Bookshop on the College account. The books had been received by the applicant but the account was not paid by her until the College had received an overdue notice.
[11] It was the applicant’s evidence that she had ordered the books on behalf of two of her new migrant students who were unable to do so. The applicant noted that she had ordered books for students in the past, collected the money from them and then paid the bookshop directly by funds transfer or cheque. It was her evidence that other teachers at the College also did this for students who had difficulty ordering books.
[12] A fourth matter noted in Ms Macleod’s 12 February letter, was the applicant’s delay in returning money to a student for a cancelled excursion. It was the applicant’s evidence that she had tried calling the student, with the help of a bilingual support person, on the morning the student went to the office asking for the refund. 7
[13] The applicant’s evidence was that she had been provided with some policies after the disciplinary interview of 16 February 2010 during which the contents of the 12 February letter were discussed. She claimed, however, that the discussions she expected to have with Ms Macleod about the College’s policies, procedures and expectations never took place.
[14] According to the applicant she had received approval from her Teacher Coordinator for an excursion to the Zoo on 30 September 2010 and had collected students’ money for that excursion on 29 September 2010. On 29 September 2010 the applicant had marked the excursion roll and ‘ticked’ everyone who had paid for the excursion as being present on 30 September. Most of the students paid $16.50. One student who paid $16.50 did not attend the excursion. The applicant’s evidence was that she retained this student’s money to refund it to her the following day.
[15] The applicantexplained her subsequent actions in her statement:
“27. On 1 October I refunded a sum of $2.00 to each student which was a discount on the ferry fare. This was because we got a group discount on the ferry. Only the refund for [the student], $16.50, was left in the envelope in my drawer. I honestly forgot to hand over the envelope to Vesna for safe keeping, before the end of the day. This was the last day of term. [The student] was again not present at school. Had [the student] been at school on 1 October 2010 none of this would have happened.
28. On 11 October, after a week’s holiday, new classes started. I was busy with a new set of students, preparation of new materials, reading and organising profiles. [The student’s] refund had truly lapsed my memory during the hectic time at the beginning of term.” 8
[16] Under cross-examination the applicant conceded that the respondent had a cash handling procedure, and that it had been fully emphasised after she received the warning in February 2010, however, she had “overlooked it totally”. 9
[17] It was the applicant’s evidence that throughout the period from 1 October 2010 until the beginning of the next term (Monday, 11 October 2010) the student’s money was in her desk drawer. 10 When she was reminded of the matter by Ms Helen Nowell on 14 October 2010 she immediately offered to give Ms Nowell the money. She claimed that Ms Nowell told her to give the money to the student the next day. The applicant had looked for the student the next day but learned that she was not present, so she handed $16.50 in coins to the student’s current teacher.
[18] The applicant stated that on 20 October 2011 she was advised by Ms Lili Sinden, Navitas’ HR Manager, that she was required to attend a meeting at the respondent’s head office. She attended the meeting on 21 October 2010 and claimed that it was very brief…less than 30 minutes”. 11 The applicant was advised later that day that her employment was terminated. A letter of termination dated 26 October 2010 was subsequently sent.12
[19] The applicant claimed that, while the company’s cash handling documents make mention of receipting money, the procedure is not adhered to. She stated that there was an ‘undocumented procedure’ whereby teachers collected money from students and handed it to the office when the collection is complete, but that teachers did not go to the office every single time they are given money for an excursion. 13 The applicant denied the respondent’s claim that the company’s procedures for money handling were discussed at teachers’ meetings.14
Respondent’s evidence
[20] The following employees of the respondent filed witness statements:
- Ms Helen Nowell (Teacher Coordinator);
- Ms Dunya Lazar (Administrative Assistant);
- Ms Vesna Trazivuk (Office Coordinator);
- Ms Alison Macleod (Educational Manager);
- Ms Lili Sinden (Former Acting English Division HR Manager); and
- Ms Kristen Adair (Human Resources Manager).
[21] The respondent also called as a witness Ms Kate Mabulay (HR Coordinator) who took notes at the meeting of 21 October 2010. Two records of Ms Mabulay’s involvement in the matter were annexed to the statement of Ms Adair. 15 During the hearing it was confirmed that the document at Annexure 11 was the official contemporaneous record of the meeting.16
Evidence of Ms Kristen Adair
[22] A statement was filed by the respondent’s Human Resources Manager Ms Kristen Adair, who was involved in the preparation of the respondent’s answer to the applicant’s claim. A number of documents concerning the termination were annexed to statement and received into evidence.
Evidence of Ms Helen Nowell
[23] By her statement Ms Helen Nowell, Teacher Coordinator, claimed that on 14 October 2010 she had been informed by the Office Coordinator, Ms Vesna Trazivuk, that a student had come to reception saying that she had, the previous term, given money to the applicant for an excursion which she did not attend. Ms Nowell was advised by the Education Manager, Ms Macleod, to investigate the matter. Ms Nowell identified the relevant student, her class number and the amount of money outstanding ($16.50).
[24] Ms Nowell stated that she spoke to the applicant about the money during the lunch break on 14 October 2010. The applicant told Ms Nowell that she had not returned the money to the student because she didn’t know where to find her. Ms Nowell said that she asked the applicant to give the money to her so that she could arrange for it to be returned to the student. 17
[25] On 15 October 2010 Ms Nowell was given an envelope containing the student’s money by the Office Coordinator. She understood that the envelope had been handed in to the Office Coordinator by the student’s current teacher, who had received it from the applicant. 18 On Monday, 18 October 2010 Ms Nowell gave the money to the student.
[26] It was Ms Nowell’s evidence that she had then asked the applicant why she had not followed the required procedure and handed the money in to be looked after by a Coordinator, and why it took her so long to return the money. She claimed that the applicant replied that she had overlooked the procedure, and forgotten about returning the money to the student because the student was absent on the day after the excursion, then there was one week’s holiday, and then in the new term she didn’t know where to find the student. 19
Evidence of Ms Dunya Lazar
[27] Ms Lazar works as an administrative assistant for the respondent. She was not required for cross-examination. According to her statement, on 14 October she was approached at the front counter by a student who told her that she had previously paid $16.50 for an excursion to the zoo but then she was unable to go. It was Ms Lazar’s evidence that the student:
“...told me that her teacher Angelina Jasinski told her that she would refund the money but she never did. [The student] said she had not been contacted at all about the money. [The student] told me she felt embarrassed to talk to Angelina about the money, and she was not sure if she was going to get the money back or not.” 20
[28] She told the student to wait while she talked to the Office Coordinator, who told Ms Lazar to report the matter to Ms Nowell and Ms Macleod, and to reassure the student that she would get her money back as soon as possible. Ms Lazar did as instructed.
Evidence of Ms Vesna Trazivuk
[29] Ms Vesna Trazivuk, the respondent’s Office Coordinator, stated that the applicant had collected donations for the Haiti earthquake victims from her students without company approval. She recalled the applicant bringing to her “makeshift money collection boxes” with students’ donations on 29 January 2010 and 1 February 2010. According to Ms Trazivuk, the applicant claimed she had explained the cause to her students so well that they wanted to donate immediately. 21
[30] Ms Trazivuk also stated that she was present in Ms Macleod’s office on Monday, 1 February 2010 when Ms Macleod told the applicant that she was not happy with her for not waiting until the morning tea and the collection that had been organised for all students on the following day, and that she did not think money being collected and handled the way the applicant did was at all appropriate. 22
[31] Ms Trazivuk also gave evidence about an incident relating to excursion money that had occurred in February 2010. It was her evidence that she was asked by a Teaching Coordinator whether she had received any excursion money from the applicant. At that time she was unaware of any planned excursion as no excursion forms had been submitted to the Manager or any of the Teaching Coordinators. She reported the matter to the Teaching Coordinator who notified Ms Macleod. Ms Trazivuk understood that Ms McLeod had talked to the applicant about the issue on 2 February 2011. Ms Trazivuk was then asked by Ms Macleod to report back to her when she was given the money by the applicant.
[32] On 3 February 2010 the applicant had given Ms Trazivuk an envelope with money in it. Ms Trazivuk’s recollection of the exchange was as follows:
“...She told me that was the excursion money. I asked her how much was in the envelope and she said that she did not know as there were too many coins to count. I said that we have to count it and opened the sealed envelope. I counted it in Angelina’s presence. There was $200.00 in paper notes, $2.80 in 5 cents coins (sic) and $0.20 cents in 10 cents coins (sic). I thought it odd that our students would pay for excursion fees in 5 cents coins, but said nothing to Angelina. I wrote the total amount on the top of the envelope.” 23
[33] It was also the witness’ evidence that on 5 February 2010 the applicant had told her that she had cancelled the excursion and requested that the money be given back to her to be refunded to students. Ms Trazivuk stated that the applicant gave her back the envelope with $18.80 in it after conducting her class, said that the applicant had told her that she would deal with the remaining money on the following Monday. The applicant did not approach her on the Monday but took the envelope back from her on Tuesday, 9 February 2010. Later that same morning Ms Trazivuk was asked by Ms Nowell whether she still had any excursion money from the applicant’s class. Ms Trazivuk’s evidence was that:
“I told them that Angelina left only $18.80 with me on Friday and that she took it from me already. That is when I was told that there was a student waiting at the reception and asking to be reimbursed for the money she paid for the excursion for four people”. 24
[34] According to Ms Trazivuk, Ms Nowell ‘got it sorted out’ that afternoon and handed her three envelopes with students’ names written on them. Ms Trazivuk stated that the money was “still short by $3.60 but Angelina promised Helen she would put the missing money in the next day”. 25 The relevant students confirmed with Ms Trazivuk at a later time that they had received their money back.
[35] Ms Trazivuk’s evidence also concerned the ‘overdue account statement’ the respondent had received by mail from the Bridge Bookshop on 4 February 2010. 26 When cross-examined about the overdue account statement Ms Trazivuk said:
“Well, we have a lot of dealings with Bridge Bookshop and the one who orders goods usually is myself or our curriculum coordinator. Because I haven't ordered anything, and the first thing I've checked with my curriculum coordinator, because from the invoice that was addressed to ACL, one couldn't see what was that about. I couldn't recall anything. Checked with her, she couldn't recall anything. That's why I had to call Bridge Bookshop to find out what the invoices are for, because I wasn't about to write a purchase order for nothing I didn't know what was that about.” 27
[36] It was Ms Trazivuk’s evidence that the person at the bookshop who took her call immediately replied that it was “for Angelina’s order of ‘Picture’ dictionaries”. Ms Trazivuk stated that she told the bookshop attendant that that particular staff member did not have authority to use the College’s account. She had reported the incident to Ms Nowell.
[37] Finally, it was Ms Trazivuk’s evidence that on 14 October 2010 Ms Lazar had told her that a student had come to the front counter seeking a refund for an excursion she did not attend the previous term. The office had not been holding any outstanding money at the time. Ms Trazivuk told Ms Lazar to inform the Teacher Coordinator (Ms Nowell) and the Manager (Ms Macleod) of what had happened and to reassure the student that the money would be returned.
Evidence of Ms Alison Macleod
[38] A statement was filed by the respondent’s Educational Manager Ms Alison Macleod, who was the applicant’s manager from October 2005 until her termination in October 2010.
[39] It was Ms Macleod’s evidence that the applicant performed well as a teacher and was liked by her students. She stated that over the years there were ‘non-teaching related instances’ which concerned her. Ms Macleod gave evidence about a situation where the respondent was contacted by Sydney Aquarium and asked to recompense that organisation for a dishonoured cheque. 28 On that occasion, the applicant had used a personal cheque to pay for her students’ admission into the aquarium instead of using the money which had earlier been collected from the students for that purpose.
[40] It was the College’s evidence that there were four ‘serious money-related events’ involving the applicant in the space of two weeks in late January and early February 2010 which required the College to take formal disciplinary action. The events to which Ms Macleod’s statement referred were as follows:
- 29 January 2010 and 1 February 2010: The collection by the applicant of money from students for the Haiti earthquake appeal without authorisation and in the knowledge that the College had already organised a formal process for collecting fundraising money;
- 2 February 2010: The applicant had planned an excursion and collected money from students without following the normal process for planning an excursion 29 or handing the collected cash to the Office Coordinator;
- 9 February 2010: A student had asked at the office for a refund on behalf of four students who had withdrawn from an excursion scheduled for the previous week but not had their money refunded; and
- 4 February 2010: An invoice had been received from the Bridge Bookshop 30 for an order of books which had not been approved - an employee of the bookshop confirmed that the applicant had placed the order, while it was normal college procedure for Teaching Coordinators, not individual teachers, to make such purchases.
[41] Ms Macleod stated that she contacted the College’s HR department to seek advice about how to respond to the incidents as, cumulatively, the incidents were so serious that they could justify the termination of the applicant’s employment.
[42] According to Ms Macleod a meeting was arranged and the applicant informed of the respondent’s concerns about the incidents. A letter was sent to the applicant outlining the matters to be discussed at the meeting. The outcome of the meeting was that a first and final warning was issued. 31 Ms Macleod stated that she had provided the applicant with a ‘First and Final Warning Form’ and copies of the relevant College policies.32
[43] It was Ms Macleod’s evidence that on 14 October 2010 she was told that a student was asking for a refund for an excursion involving the applicant’s class at the end of the previous term. Ms Macleod had asked Ms Nowell to ‘sort the matter out’. Ms Nowell had determined that the money was owed to the student and that the applicant had not returned the excursion money to the Office Coordinator.
[44] Ms Macleod spoke to the applicant on the afternoon of 14 October 2010 and asked her why she had not given the excursion money to the Office Coordinator. The applicant had clarified the situation and told her that she had followed the respondent’s policy by handing over money she had collected from the students before the excursion, but had not returned the unused money from the excursion. Ms Macleod apologised for her mistake but told the applicant that the unused money should still have been handed in to the front office.
[45] It was Ms Macleod’s evidence that the applicant had been asked to hand the outstanding money to Ms Nowell but had instead given it to the student’s new teacher. Ms Macleod felt that the applicant’s mishandling of the money was a breach of the first and final warning issued to her in February. Ms McLeod contacted HRand a meeting was arranged.
[46] According to Ms Macleod, at the meeting the applicant responded at length to the issues and took the opportunity to disagree with Ms Macleod’s version of events. After the meeting the decision was made to terminate the applicant’s employment.
[47] It was Ms Macleod’s evidence that all teachers had been advised by their Manager or Teacher Coordinator of the need to hand money in to the Office Coordinator. The cash handling policy was also reinforced at regular teachers’ meetings and was followed ‘religiously’ by all other teachers.
Evidence of Ms Lili Sinden
[48] A statement was provided by Ms Lili Sinden, who acted as HR Manager of Navitas’ English Division between January and May 2010. Ms Sinden was not available for cross-examination as she was overseas at the time of the hearing and no longer works with Navitas. 33
[49] Mr Frost sought leave to tender the part of Ms Sinden’s statement (paragraphs 18-35) which related to the content of the meeting of 21 October 2010 at which the applicant was invited to respond to the allegations of cash mishandling. Leave was granted on the basis that the matters contained in those paragraphs would be given the weight they deserved in the circumstances. 34
[50] It was Ms Sinden’s evidence that the October meeting was attended by herself, the applicant, Mr Warren (IEU), Ms Macleod (Educational Manager), and Ms Mabulay (HR Coordinator and meeting transcriber). According to Ms Sinden, she introduced everyone in the group and then went on to:
- explain that the purpose of the meeting was to discuss matters which had arisen from a cash handling incident in which the applicant was involved;
- outline the February 2010 disciplinary event which resulted in the applicant being issued with a first and final warning;
- point out the seriousness of the matter at hand and its potential to impact on the integrity of the college; and
- elaborate how the cash mishandling issue had come to the attention of Ms Macleod on 14 October 2010. 35
[51] According to the statement, Ms Macleod explained the relevant college cash handling policy and Ms Sinden stated that the applicant had failed to hand the money in to the Office Coordinator in accordance with the policy, and that the applicant had to be asked for the money. Ms Sinden told the applicant that due to her past history there was an issue of trust arising from her behaviour. The applicant was then asked if she wanted to respond to the claims put to her by the company. 36 According to Ms Sinden, Mr Warren responded on the applicant’s behalf by claiming that the applicant had in fact made a considerable effort to return the money and that the respondent needed to be flexible with the issue given the one week break between semesters.37
[52] It was Ms Sinden’s evidence that during the meeting, when asked why she kept the refund rather than handing it to the Office Coordinator, the applicant had replied that she had:
- looked for the student on the day after the excursion but could not find her as the student was absent on that day;
- forgotten to hand in the money to the Office Coordinator in the rush to get away from college for the break; and
- had looked for the student again on commencement of the new term but didn’t know which class she was in. 38
[53] Mr Warren then stated that the amount was “insignificant” and that, given the semester break, the failure to return the cash was “clearly just an oversight” on the part of the applicant. Ms Sinden states she then said even though the amount appeared to Mr Warren and the applicant to be insignificant it was still a breach of cash handling policy, and that the applicant should have handed the cash to the Office Coordinator. 39
[54] It was Ms Sinden’s recollection that Ms Macleod had pointed out to the applicant that she should have known which class the student was in as it had been her responsibility to place her students in their new class for the coming term.
[55] Ms Sinden states that after these issues were exhausted the applicant was asked to wait outside while Ms Sinden and Mr Warren spoke about the issue. Ms Sinden’s evidence is that she told Mr Warren that the breach showed that the applicant had not taken the February warning seriously, and that the respondent had lost all trust in the applicant’s ability to comply with college policies concerning cash handling. Mr Warren then repeated to Ms Sinden his opinion that the respondent’s reaction was a “sledgehammer approach” to an incident that appeared to be a genuine mistake.
Applicant’s submissions
[56] Ms Matthews for the applicant submitted that there were ‘two general limbs’ to the applicant’s case: firstly, there was no clear company policy breached by the applicant; and secondly, even if there was a clear policy, and even if the applicant’s breach of that policy in itself might be considered a valid reason for her termination within the meaning of the Act, the dismissal was harsh in all the circumstances. 40
[57] It was submitted that the applicant was terminated for a subsequent breach of cash handling procedures following a first and final warning on the same matter. It was put, however, that the applicant was not counselled on the content of the other policies given to her following her receipt of the ‘Discipline Report Form & Formal Warning’, 41 despite the form specifying that she was to have discussions about the company’s policies with Ms Macleod.42 The relevant part of the form provided as follows:
Steps necessary to correct the problem (e.g. additional training):
- Additional training is to be given to Angelina by supplying her with copies of all relevant policies/procedures and a PD for her role in addition to a copy of her contract so that she may re familiarise herself with her conditions of employment.
Counselling required: Yes / No
If yes, by whom:
- Alison Macleod to discuss Policy, procedure and expectations going forward.
[58] Ms Matthews submitted that there was a question about whether the cash handling policy was even amongst the documents provided to the applicant after the February 2010 disciplinary action. 43 In any event, it was the applicant’s case that all of the policies provided to her actually gave no practical guidance to her at all in relation to the issue that she was being counselled about.44 She was simply provided with a series of documents and asked to sign. Further, the applicant had felt intimidated when she signed the documentation verifying that she had read and understood the policies and procedures provided to her by the company.
[59] In support of her submissions that the policy documents provided were of no guidance to her, and that there was an overall lack of precision about cash handling requirements, it was submitted by the applicant that:
- the cash handling policy was not really directed at teachers but to coordinators, and that the policy does not really deal with the reality that teachers may frequently be required to handle cash in the course of their employment; 45
- although the cash handling policy itself requires receipts to be issued any time cash is received, this practice was generally not followed by teachers when collecting money for excursions; 46
- no evidence was put by the respondent in support of the contention in Ms Macleod’s statement that cash handling policies were ‘reinforced constantly’ at regular teachers’ meetings; 47 and
- there was a distinction between the policies and procedures which applied to the collection of money, on the one hand, and the question of refunds, on the other hand, in relation to which the requirements were not so clear cut. 48
[60] The applicant’s submission was that the relevant policies only became clearer after the February 2010 disciplinary action, and that it was therefore unreasonable for the respondent to rely on a ‘subsequent breach’ of the first and final warning issued for breach of those policies. 49
[61] It was the applicant’s case that the termination of her employment for a subsequent breach of cash handling procedures following her receipt of a first and final warning was not a ‘valid reason’ because:
- The relevant procedures were not established with sufficient certainty (particularly in relation to student refunds);
- There was no evidence that the procedures for dealing with cash for excursions and refunds had actually been brought to the applicant’s attention in teachers’ meetings;
- The warning given in February did not deal with the question of handling excursion money, although it purported to deal with this;
- No guidance was actually provided to the applicant after the disciplinary meeting of 16 February 2010, notwithstanding the fact that the discipline report provided to her required her to be counselled on the matters discussed with her;
- The applicant was provided with a series of documents and simply asked to sign them under intimidating circumstances; and
- The employer should have taken into account the fact the applicant’s conduct was not a knowing or deliberate breach of company policy. 50
[62] It was submitted in the alternative that, even if Fair Work Australia considered there to be a valid reason for the applicant’s dismissal, the termination was nonetheless harsh. In support of this submission Ms Matthews relied on the Full Bench decision in Woolworths v Cameron Brown as authority for the proposition that although a breach of policy may constitute a valid reason for a termination, the termination may nevertheless be harsh, unjust or unreasonable. It was submitted that, in all the circumstances, a consideration of proportionality would mean that even if the Tribunal were satisfied that there was a breach of company policies, and that such breaches could in certain situations warrant dismissal, termination was too serious a penalty.
[63] It was also the applicant’s submission that the matters in respect of which she received the first and final warning were of a different nature to the subsequent issue relating to her failure to hand a refund into the office, so it was unreasonable for the employer to rely on the conduct in the way that it did.
[64] Contrary to the respondent’s position, the applicant submitted that her explanations for the delay in returning the money to the student were generally consistent throughout the investigation and the hearing, but in any event, needed to be viewed in the context of discussions in which she was under considerable stress which, it was submitted, could account for some differences. 51
Respondent’s submissions
[65] It was the respondent’s submission that the termination of the applicant’s employment was not harsh, unjust or unreasonable having regard to the criteria for considering harshness set out in s.387 of the Act.
[66] In response to the submissions put by Ms Matthews, Mr Frost noted that the applicant had not asserted that the cash handling policy was not attached to the final warning form she was given in February 2010, nor was there evidence that the applicant did not understand the policy documents given to her. Further, it was submitted by Navitas that the prior conduct which led to the issuing of the first and final warning was of a sufficiently similar character to the conduct which occurred in October 2010 to warrant a parallel being drawn by the respondent.
[67] It was the respondent’s submission that concerns about the applicant’s cash handling had been raised with her in the past. The respondent submitted that the ‘consistent theme’ in each case of cash mishandling was that, if it were not for the intervention of a third party bringing it to her attention, the result would have been that the applicant would have retained money to which she was not entitled.
[68] It was submitted for the respondent that, until the hearing, the applicant had not asserted that she was in any way pressured into accepting the warning or signing the documents given to her after the meeting of 16 February 2010. Further, given the attendance of Mr Warren from the IEU at that meeting it was put that the applicant’s claim that she felt intimidated was not plausible.
[69] In relation to the October 2010 excursion money incident which brought about the termination, the respondent noted that the applicant had marked the roll in such a way that another person examining the roll would have considered that no money was required to be returned. It was put for the respondent that although the amount of money involved was not large, the embarrassment felt by the student when she approached the front office staff demonstrated that the retention by the applicant of the student’s money was a significant matter, impacting on the way the student felt towards the respondent.
[70] The respondent addressed the s.387 criteria as follows:
- the applicant was notified in three stages: before the meeting of 21 October 2010, during the meeting, and in the termination letter given to her on 26 October 2010;
- there were eight occasions during the hearing when the applicant either expressly or impliedly accepted that she was given the opportunity to respond to particular issues during the 21 October 2010 meeting, or that she couldn't recall but didn't deny having done so. Further, other witnesses’ accounts of the meeting supported the view that the applicant’s involvement in the meeting was not brief and peripheral, on the contrary, she was given an opportunity to respond to the allegations put to her;
- Mr Warren of the IEU was present at both the 16 February 2010 meeting and the 21 October 2010 meeting; 52
- it was not a performance related termination, however, the applicant had previously received a first and final warning about issues concerning her cash handling; and
- the process followed was in accordance with that which would be expected from a company the size of the respondent.
[71] As to the matter of valid reason, it was put that the applicant’s reliance on a poor memory to explain her conduct to the employer was inconsistent with her demonstrated knowledge of the applicable procedures and her awareness of the requirement that she comply with them. It was the respondent’s submission that there was no basis for the applicant’s submission that she did not know what she was required to do. Further, it was submitted that the applicant provided inconsistent answers to her employer’s questions about why she did not return the student’s excursion money.
[72] It was respondent’s case that the applicant’s conduct, in particular the casual way she approached the return of the student’s money in October 2010, left open the conclusion that she simply did not take the matter seriously. It was put that, had the office not reminded the applicant about the money, there was no reason to believe it would have been returned. It was also argued that the amount of money mishandled was not the point; rather, the point was the impact on the relationship of trust that must exist between an employer and an employee. 53 Accordingly, it was submitted that the fact the employer relies on the applicant’s mishandling of a relatively small amount of money($16.50) does not detract from the impact that her conduct would have on the reputation of the college, its relations with its students and therefore the validity of its decision to terminate her employment.54 Mr Frost cited Allan George Shaw v Carlisle Nursing Home55and Petrosillo v Coles56 as examples of cases were terminations were upheld notwithstanding the relatively insignificant value of the items involved in the employees’ conduct ($20 cash and a chocolate bar respectively).
[73] On the matter of remedy, it was submitted by the respondent that reinstatement would not be appropriate as the relationship had broken down “as a result of trust issues”. 57 Lastly, Mr Frost submitted on behalf of the respondent that, if compensation were to be granted, the Tribunal should take into account the fact that it paid the applicant five weeks pay in lieu of notice despite the fact her conduct warranted summary dismissal.
Consideration
[74] Section 387 of the Act sets out the criteria which must be taken into account in the consideration of whether the dismissal was harsh, unjust or unreasonable. I have considered this matter in relation to those criteria.
[75] I am satisfied that the respondent had a valid reason for terminating the applicant’s employment. The applicant was aware of the procedures required by the respondent to be followed by teachers when handling money collected from students. I am also satisfied that following the meeting of 16 February 2010 the applicant was under no misapprehension as to the seriousness with which the respondent viewed matters concerning the handling by teachers of money collected from students. On the applicant’s own evidence she knew that money collected from students was to be handed to the office for safekeeping. She had received a first and final warning which related, among other matters, to her failure to abide by that requirement. I accept that the mishandling of cash could have had serious consequences for the college and, thus, it required a high degree of propriety from its teachers and office staff in relation to the handling of students’ money. The applicant demonstrably failed to adhere to the standards required by her employer. As a consequence the employer no longer had the requisite trust in the applicant for the maintenance of the employment relationship.
[76] The applicant was notified of the reasons for her dismissal. The evidence was that she was made aware, both before and during the meeting of 21 October 2010, of the concerns the respondent had about her handling of the refund of the student’s excursion money and also that the respondent’s concerns were heightened due to similar matters which had led to her being issued with a first and final warning in February that year. In addition, the applicant was provided with a letter of termination on 26 October 2010 which indicated that the reason for the termination was a subsequent breach of cash handling procedures following the earlier warning.
[77] I am satisfied that at the meeting on 21 October 2010 the applicant had sufficient opportunity to respond to the allegation that she had breached the applicable cash handling procedures. She was accompanied at that meeting by her union representative, who interceded with the employer on her behalf. The applicant claimed that she was given insufficient time to put her case during the meeting. I do not believe that the evidence supports this claim and accept the evidence for the respondent that the applicant was given every opportunity to put forward her explanation for not handing the money she was holding for the student to the office co-ordinator in accordance with the accepted procedures. The notes of the meeting taken by Ms Mabulay support this conclusion.
[78] Both at the disciplinary meeting in February, when the first and final warning was issued, and at the meeting of 21 October 2010, the applicant was actively supported by her union representative. The attendance of the union representative was actively encouraged by the respondent on both occasions.
[79] There was no suggestion in this matter that dismissal was in any manner connected with the unsatisfactory performance of the applicant. The respondent’s position was that the applicant was a good teacher who was well-liked by her students. The performance of her teaching duties was not at issue. The dismissal concerned only the breach of the respondent’s cash handling procedures.
[80] The respondent is a large employer and the procedures adopted in affecting the dismissal were consistent with the employer’s size. The respondent has dedicated human resource specialists on its staff who were consulted about, and involved in, the procedures adopted to effect the dismissal.
[81] The respondent has dedicated human resource management expertise and the procedures adopted in relation to the termination of the applicant’s employment were not affected by any lack of such expertise.
[82] Pursuant to s.387(h) of the Act I have also taken into account the fact that part of the respondent’s business involves tendering for contracts to provide adult migrant education services to the Australian government. 58 Mismanagement of students’ money, even small amounts, could damage the respondent’s reputation as a provider of services to vulnerable members of the community, including recent migrants, and its ability to win future Commonwealth contracts. The respondent’s outline of submissions alluded to requirements under its contractual arrangements with the government which impose obligations on it to carry on its business in such way so as not to damage its reputation.59 I have accepted the respondent’s submission that the requirement that its teachers handle students’ money properly is “important both as a matter of integrity and also because of the impact that it would have on the reputation of the college and its relations with its students and the broader community”.60
[83] In determining whether the termination was harsh, unjust or unreasonable I have taken into account the applicant’s length of service and the impact on her of the loss of her employment. While these matters are not insignificant I take the view that in all the circumstances of this case, including the possible effect on the employer’s reputation of suggestions of mishandling of students’ money by staff, the termination of the applicant’s employment was justified.
Conclusion
[84] For the reasons set out above I am satisfied that the termination of the applicant’s employment was not harsh, unjust or unreasonable.
[85] The application is dismissed.
COMMISSIONER
Appearances:
Ms Carol Matthews, Independent Education Union, for the Applicant
Mr Tim Frost and Ms Sarah Hampton, Allens Arthur Robinson, for the Respondent
Hearing details:
2011.
Sydney:
18 March 2011.
2011.
Sydney:
31 March 2011.
1 At the hearing Mr Frost, for the respondent, indicated that in October 2010 the respondent changed its name from ACL Pty Ltd to Navitas English Pty Ltd.
2 Exhibit J1.
3 Exhibit J3.
4 Exhibit N1 (Annexure 15 to the Statement of Ms Kristen Adair).
5 Exhibit J1 Annexure 1.
6 Exhibit J1 paragraph 11. See also PN265.
7 Exhibit J1 paragraph 13. See also PN73.
8 Exhibit J1 paragraphs 27-28.
9 PN511-PN518.
10 PN506.
11 PN520-PN521.
12 Exhibit N1 (Annexure 3B to the Statement of Ms Kristen Adair).
13 See PN250-PN252 and PN510-PN511.
14 PN245.
15 Exhibit N1 (Annexures 11 and 26 to the Statement of Ms Kristen Adair).
16 See PN595-PN603.
17 Exhibit N1 (paragraph 5 of the statement of Ms Helen Nowell).
18 Ibid at paragraph 6.
19 Ibid at paragraph 8.
20 Exhibit N1 (paragraph 3 of the statement of Ms Dunya Lazar).
21 Exhibit N1 (paragraphs 2 and 5 of the statement of Ms Vesna Trazivuk).
22 Ibid at paragraph 5.
23 Ibid at paragraph 9.
24 Ibid at paragraph 11.
25 Ibid at paragraph 12.
26 See PN71
27 PN928.
28 See Exhibit N1 (Annexures 19-21 to the Statement of Ms Kristen Adair).
29 Ibid at Annexure 18.
30 Exhibit J2.
31 See Exhibit N1 (Annexure 13 to the Statement of Ms Kristen Adair).
32 See Exhibits J3 and J4 and N1 (Annexures 17-18 to the Statement of Ms Kristen Adair).
33 See PN26 and PN967.
34 PN974.
35 Exhibit N1 (paragraphs 19 and 20 of the statement of Ms Lili Sinden).
36 Ibid at paragraphs 21 and 22.
37 Ibid at paragraph 23.
38 Ibid at paragraph 30.
39 Ibid at paragraph 28.
40 PN1005.
41 Exhibit N1 (Annexure 14 to the Statement of Ms Kristen Adair).
42 PN1007-PN1017.
43 PN1007.
44 PN1036.
45 See PN1028-PN1035.
46 See PN1036-PN1045.
47 PN1048-PN1058.
48 PN1046 and PN1059-PN1068.
49 PN1048.
50 PN1082-PN1083.
51 PN1069.
52 PN1142.
53 PN1176.
54 PN1177.
55 Allan George Shaw v Carlisle Nursing Home (1998) Dec 148/98 Print P8770 (Laing C).
56 Petrosillo v Coles Group Supply Chain Pty Ltd [2009] AIRC 3 (SDP Cartwright).
57 PN1180.
58 See PN37.
59 Paragraph 9.2 of the respondent’s outline of submissions filed on 14 February 2011.
60 PN1177.
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