Ms Vicki De Arman v Soldiers Point Bowling Club - [2012] FWA 7148

[2012] FWA 7148

FAIR WORK AUSTRALIA

DECISION

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

Ms Vicki De Arman
v
Soldiers Point Bowling Club
(U2012/364)

COMMISSIONER STANTON

NEWCASTLE, 21 AUGUST 2012

Termination of employment - alleged unfair dismissal - summary dismissal - serious misconduct - summary dismissal - dismissal harsh, unjust and unfair - reinstatement ordered.

[1] The applicant in this matter is Ms Vickie De Arman. She commenced work with the respondent, Soldiers Point Bowling Club Limited, in September 2007 in a casual capacity. At the time of her dismissal on 17 February 2012 the applicant was employed on a permanent 38 hours per week basis. Her duties included relief supervisor, bar attendant, change box attendant, TAB and Keno operator, poker machine service and reception work. She was dismissed summarily for misconduct.

[2] On 10 February 2012 after meeting with the applicant the respondent wrote to her to confirm that she was suspended on pay pending a further meeting on 17 February 2012. The correspondence stated the termination of the applicant’s employment was a matter under consideration and against that backdrop the purpose of the meeting was to discuss:

1. Repeated (discrepancies) in balancing the Change Box whereby you are responsible for the majority of significant errors when compared to other staff; and

2. Events on Wednesday, 8 February 2012 where it is alleged that $50 went missing from the Change Box as a result of your actions.

[3] During the meeting on 17 February 2012 the respondent relied on CCTV footage to support the allegation that a $50 note was missing from a $5,000 bundle which formed part of the daily float balance on 8 February 2012.

[4] The applicant and her Union representative, Ms Catriona Moroney, were verbally advised of the respondent’s decision concerning dismissal following the meeting on 17 February 2012. The dismissal was subsequently confirmed in writing the same day. Reasons cited for the applicant’s dismissal included the following:

1. Repeated discrepancies in balancing the Change Box whereby you are responsible for the majority of significant errors when compared to other staff.

2. Events on Wednesday, 8 February 2012 where $50 went missing from the Change Box as a result of your actions.

3. A serious breach of end night balancing procedures.

The employment separation certificate provided to the applicant stated misconduct: Serious breach of procedure and failure to satisfactorily perform duties.

[5] Shortly stated the applicant was working as a Change Box Operator on the date of the incident which led to her dismissal. The respondent’s change box area is not a fully secure or restricted access area. During any shift the evidence in these proceedings was that multiple employees enter the change box area from time to time for the purposes of obtaining change for other Club service areas, or processing transactions for TAB and Keno. There is no reconciliation undertaken by staff who relieve the Change Box Operator for meal and other recognised breaks that occur during a shift. Both the applicant and respondent agreed that the float issued at the commencement of the relevant shift was utilised throughout that day. The parties also acknowledged that whilst a reconciliation of the float takes place at the “shift change over”, any variances incurred by the Change Box Operator going off shift are inherited by the Change Box Operator coming onto shift.

[6] The respondent’s TAB and Keno operations are balanced, where necessary, from change box monies. In that regard any TAB or Keno shortfall becomes a negative variance to the change box.

[7] There are no written policies dealing with the operation of the respondent’s change box area or its reconciliation.

[8] The applicant claims that her dismissal was harsh and unjust. The remedy sought was reinstatement with appropriate Orders to maintain the continuity of her employment and to restore lost pay.

[9] In these proceedings, the term “change box” was described by various witnesses as cash box, change box area, float and red tin.

EVIDENCE

Applicant

[10] The applicant’s evidence was that she was often required to work in the respondent’s change box area where, in addition to changing money for poker machine use, she would also operate the respondent’s TAB and Keno services. She was required to pay out poker machine jackpots as well as supply other areas of the Club with change. 1 The change box float was usually $75,000.

[11] The applicant deposed that on 8 February 2012 she commenced work at 4.00pm and took over in the change box area from Mr James Oldham who was the day shift Change Box Operator. The applicant further deposed that when she commenced her shift she was required to take over the change box float which included any change variances incurred by Mr Oldham. Whilst the float reconciliation made at the end of the day would identify all variances, the amount of the actual variances incurred was attributed to the Change Box Operator who balanced the float at the end of the day.

[12] The applicant explained that during the course of a shift a number of employees had access to the change box. In that regard she deposed the Change Box Operator was relieved during lunch and other authorised breaks by other staff. From time to time her Manager, Mr Simon Lack and the Assistant Manager, Mr Samuel Francis also had access to the change box area. In addition to Mr Lack and Mr Francis, other employees entered the change box area to obtain change for their till floats. The applicant contended that a number of staff, other than the Change Box Operator on duty at the time, had access to the change box area. Moreover during her shift her Supervisor, Mrs Selena Giles, also had access to the change box float and the safe.

[13] The applicant further deposed that when she commenced her shift on 8 February 2012 she counted the change box and found the TAB float was $30 under and the Keno float was $10 under. These variances were reported in the Daily Bar Float Balance Sheet by Ms Giles. A copy of the Daily Bar Float Balance Sheet for 8 February 2012 was attached to the applicant’s Statement but only shows an aggregate total float balance. At the end of the applicant’s shift on 8 February 2012, her reconciliation showed the final balance was short by $16. Following the reconciliation she wheeled the money from the change box area to the safe for storage. The applicant deposed that when she placed the bundles of $50 notes on the shelf on top of an existing bundle of notes, she realised she had not put one bundle of $50 notes into the “safe count”:

I then straightened the bundles and took a bundle from the bottom which had already been there before I put the bundles on the shelf. The bundle I took was sitting crooked so I used that bundle to put in the red tin for the change box float. 2

[14] She then proceeded to empty the poker machines and later stacked that money in the safe so it could be counted the next morning. The applicant was rostered off on 9 and 10 February 2012. Mr Lack contacted her by telephone on 9 February 2012 stating that he wished to meet with her the following day. She enquired about the purpose of the meeting and asked if it concerned the $1000 discrepancy that had occurred in January 2012. In response Mr Lack replied that it did. The applicant subsequently contacted Mr Jay Cooper who had worked with her on 14 January 2012 when the float balance sheet at the end of the night had confirmed a variance of $983.45.

[15] During the meeting on 10 February 2012 Mr Lack showed the applicant a list of discrepancies and also confirmed there was $50 missing from the safe. He also asked her to explain a number of events which were set out on CCTV footage. The applicant explained to Mr Lack that the particular bundle of money identified in the CCTV footage was sitting crooked and so she swapped that bundle from the red float tin. Mr Cooper also confirmed during the course of the meeting that swapping bundles was not an unusual practice.

[16] At the meeting on 17 February 2012, the applicant was accompanied by her Union representative, Ms Moroney. Also present at that meeting were Mr Lack and Mr Francis. Mr Lack repeated his allegation concerning the missing $50 and showed the relevant CCTV footage to Ms Moroney. During the course of the meeting Mr Lack sought a response from the applicant to explain why she had removed money from the float tin, placed it on the shelf and then returned a different bundle back to the float tin. The applicant deposed she explained she had done this so as to return $5,000 to the safe money in order to refloat the tin for the next shift the following day. She stated that after placing the money on the shelf she was about to close the float tin when she realised that she didn’t have to do this as the Supervisor would undertake that task the following day. Accordingly, she returned the $5,000 to the float tin.

[17] As the meeting progressed Mr Lack stated Mr Frank Nash, a Supervisor, had counted the monies on the shelf on 9 February 2012 and found a $5,000 bundle of $50 notes was short by $50. In that regard the applicant deposed Mr Lack accused her of stealing by deliberately taking $50 from the bundle and swapping it with another bundle in the safe. According to the applicant Mr Lack persistently suggested that the short bundle was not a bundle that had been sitting in the safe from 7 February 2012. He confirmed Mr Nash had altered the Balance Sheet figures for 8 February 2012 to show a shortage of $66.

[18] Mr Lack subsequently proceeded to raise a number of other variances that he believed the applicant was responsible for. One variance in particular occurred on 14 January 2012 when the float balance was short $983.45. The applicant deposed that she explained to Mr Lack that on 14 January 2012 she was not the only employee who had access to the change box as well as the TAB and Keno takings. In that regard she claimed Supervisors had been changing money in the change box during the day and, in addition, other staff had been serving TAB and Keno customers. On that particular day the applicant claimed that only one float was used for the entire day’s trading. In accordance with a directive from Mr Lack “all unders” concerning TAB And Keno takings were made up from the change box monies so that they balanced. That directive was adhered to on 14 January 2012 with the result that the variance of $983.45 was attributed to the change box.

[19] During the course of the meeting on 17 February 2012, the applicant deposed Ms Moroney told Mr Lack that she considered the Club’s change box practices to be poor because an individual TAB or Keno variance could not be tracked as the float sheet did not record separate balances. She suggested the applicant could not be held solely responsible for the variances that occurred on 14 January 2012.

[20] At the conclusion of the meeting on 17 February 2012 Mr Lack informed the applicant and her representative that he believed she was responsible for the missing $50 and he was considering dismissing her. The applicant subsequently denied being responsible for the missing $50.

[21] In cross-examination the applicant explained that the variance on 14 January 2012 was largely attributed to the TAB. She explained that on that day the TAB was very busy and there were a lot of payouts. There were also a lot of staff in and out of the change box area. The applicant further explained that she had a half hour break from the change box during her shift and had also worked for a time behind the bar assisting bar staff serve patrons. It was the applicant’s evidence that shortly after the 14 January 2012 variance she contacted the TAB by telephone. Several emails had also been sent to the TAB. However she did not include these emails in her written evidence on the grounds that she thought the real issue concerning her dismissal was the missing $50. Mr Arnold took the applicant to Mr Lack’s Statement where a large number of variances were set out.

[22] The applicant denied that paragraphs [14] and [15] of Ms Moroney’s Statement and paragraphs [42] and [43] of her Statement were virtually identical.

[23] The applicant was shown the relevant CCTV footage relied upon by the respondent in its decision to dismiss her. In that regard Mr Arnold put the following to the applicant:

At 21.41.17 the applicant is counting money with both hands. At 21.41.21 the respondent contends the applicant is placing money into a yellow envelope. Shortly after 21.41.24, there appears to be a $50 note in her left hand. At 21.41.36 the applicant places money into the yellow envelope and at 21.41.41, money is again being placed in the envelope and, in her right hand, there is a $50 note. At 21.41.45 the respondent contends the $50 note transfers to her left hand and at 21.41.46 there appears to be nothing in her left or right hand.

[24] In further cross-examination the applicant claimed that a pen was in her hand as at the time she was putting money into the envelope and that she subsequently wrote on the envelope. The applicant was then taken to the CCTV footage of her deliberations in the safe area. At 23.51.28 the applicant further agreed that she placed a red float tin in the safe. At 23.51.32 the applicant agreed she opened the red float tin and at 23.51.36 she withdrew a bundle of $50 notes. She subsequently proceeded to put that bundle of notes on top of an existing bundle in the safe. She agreed with that explanation of the CCTV footage. She also agreed that at 23.51.39 she lifted up a bundle of $50 notes and put another bundle underneath it. She further agreed that she placed another bundle back in the red float tin. She explained that she took one bundle and put it under another to straighten the bundle and make it neater.

[25] The applicant subsequently explained why she returned a bundle of $50 notes to the red float tin:

At the end of the night, sometimes - in the change box, we have the money. Sometimes we only keep as less as we can in the red tin, and we return money back. It might be the dollar coins, it might bundles of money - whatever there's a lot of - to make it less for the supervisor the next morning to count. And you write it down on the safe sheet and you then you just put it back in when you go back in. 3

[26] The applicant claimed that she put the bundle of $50 notes back in the red float tin because “I didn’t write it down on the safe sheet”. 4 The applicant stated that she put that explanation forward at the meetings on 10 and 17 February 2012. She also agreed that she said at the time of viewing the CCTV footage in February 2012 “Well, it does look suss”.5 The applicant could offer no explanation as to why a bundle was $50 short. She further stated that when she took over the shift that day the float was down $40,6 yet at the end of the night the float was only $16 short.7 In further explanation the applicant stated she counted the bundle she had placed in the safe but it was not her responsibility to count the bundles already stored in the safe. She further claimed that when she counted the disputed bundle it amounted to $5,000.

[27] In re-examination the applicant confirmed that at no stage between 14 January and 10 February 2012 did the respondent pursue her and say words to the effect “Listen, here’s the transaction you did that has caused this variance”. 8

[28] It was the applicant’s evidence that between 14 January and 10 February 2012 the respondent did not approach her to seek details concerning the variances as alleged, other than Mr Lack stating on a number of occasions, “Have you found the money, old girl?” 9 With reference to the range of variances made under “her watch”, the applicant confirmed the respondent provided no evidence on 10 or 17 February 2012 to support claims that she had caused any of those variances. With reference to the CCTV footage, the applicant also confirmed that at no stage during the meeting was she shown footage that depicted her placing any money in a blouse or pants pocket. With reference to the CCTV footage at 21.41.34, the applicant contended that at that point in time she was counting $100 notes. The CCTV footage subsequently showed her placing those $100 notes into an envelope which she recalled was the envelope for Keno takings. In that regard at no stage after 8 February 2012 had she been informed that the envelope was correctly counted or whether there was a difference in the amount stated on the envelope. The applicant claimed it was not uncommon for staff to transfer money from their float tin to the safe, thereby reducing the size of the float. She confirmed no record was kept of such monies being “taken in and out of the safe”.10 With respect to the two bundles amounting to $5,000 that she placed in the safe, the applicant confirmed she did not actually count every note of each bundle.

[29] In further cross-examination by Mr Arnold, the applicant confirmed that when the variance occurred on 14 January 2012, it was a very busy day for the TAB and she was not the only person that worked in the change box area. She said there was another employee who worked and “signed off at the end of the night” 11 and her supervisor also had accessed the change box area that day. Moreover, as the bar was short staffed she left the change box area on occasion to assist bar staff serve patrons.

Ms Selena Giles

[30] Ms Giles commenced employment with the respondent in October 2002. Her current position is Duty Supervisor and she has been in that role for almost six years. Ms Giles appeared in these proceedings pursuant to an Order sought by the applicant and made pursuant to s.590(2) of the Fair Work Act 2009. Mr Acev referred Ms Giles to the Daily Bar Float Balance Sheet dated 8 February 2012. The Balance Sheet contained three columns:

Start of the Day

Changeover

End of the Day

Within each column there were further columns setting out currency denominations, monies held by the safe and monies contained in the respective float. The Start of the Day column stated the float was $75,000 and that figure had been signed off by Mr Frank Nash, Duty Supervisor.

[31] In response to a line of questions from Mr Acev, Ms Giles stated the “Changeover” concerned the changeover of staff in the actual change box. She said changeover normally occurred between 3.30pm and 4.00pm each day. She explained that the cashier going off shift would check their TAB and Keno takings together with cash-on-hand details of payouts, vouchers, redemptions and the like and then write those amounts down in the relevant Changeover column. Mr Acev subsequently referred Ms Giles to a notation on the Balance Sheet which stated:

TAB/$30 and Keno/$10 12 and then “half-time”.

Ms Giles stated she wrote those entries and the notation half-time because the applicant had told her that the TAB and Keno takings were down and she had made them up. In response Ms Giles told the applicant “... you have to make a note of the fact that they were down; that it wasn't actually out of the poker machine float". 13 She further explained that deficiencies in the TAB or Keno takings were made up and balanced from poker machine monies. In the event the variance was not found at changeover, it would be carried through to the end of the night. In that regard she further explained that in the event of a negative variance, the incoming cashier did not receive additional monies to cover that variance.

[32] Mr Acev referred Ms Giles to a further notation “James”. In that regard, Ms Giles said that notation would have been made by Mr James Oldham who was the morning Cash Box Operator on 8 February 2012. Further, the Changeover column showed that when the applicant took over from Mr Oldham the float was $74, 968.30 which resulted in an “under” of $31.70.

[33] It was Ms Giles’ evidence that a number of the respondent’s staff had access to the change box area. In that regard she stated Mr Lack, his assistant, Mr Francis, the relevant Duty Supervisor of the day and some other employees would visit the change box area from time to time to count their till. Ms Giles also stated that when a cashier was relieved for a break and was replaced by another member of staff, there was no reconciliation of the float before the relevant break was taken.

[34] In relation to the applicant, Ms Giles stated that she had worked with her for a number of years and it was her opinion that her honesty could not be doubted. Further, in the event the applicant was re-instated Ms Giles said she could see no operational reason why she could not work at the Club.

[35] In cross-examination Mr Arnold referred Ms Giles to the Daily Float Balance Sheet dated 8 February 2012. He specifically referred Ms Giles to the End of Day column where the figure $10,000 under the Safe column had been adjusted to $9,950. In that regard she said the $10,000 figure would have been written by the applicant and the $9,950 figure would have been written by Mr Nash.

[36] Ms Giles confirmed that the person who counted the float at the end of the day placed those monies in the safe and from that point no one else would have access to the money.

[37] Ms Giles stated she had seen some of the CCTV footage relied upon by the respondent.

[38] In relation to the other variances relied upon by the respondent to dismiss the applicant, Ms Giles said she was aware of some of those variances and as a Duty Supervisor she was concerned, particularly with respect to the variance of nearly $1,000. In that regard she said there were other staff members who had incurred large variances and she did not suspect those employees of stealing the money. In response to the large number of variances incurred by the applicant, Ms Giles stated “they do seem quite high”. 14

[39] In re-examination by Mr Acev, Ms Giles stated she was not involved in counting the float on 9 February 2012 and the only person who had access to the money the following morning was the Supervisor, Mr Nash. She also stated that there was no “dual count” of the relevant float each morning. 15

Ms Catriona Moroney

[40] Ms Moroney is an Organiser with the Liquor and Hospitality Division, United Voice and has held that position since July 2010. She accompanied the applicant to the disciplinary meeting on 17 February 2012. During the course of that meeting the applicant explained her actions in balancing the float on 8 February 2012. However, she could not explain how $50 had gone missing from the safe.

[41] Ms Moroney deposed that during the course of the meeting on 17 February 2012, Mr Lack showed CCTV footage of the applicant entering the safe with the red float tin. In that regard she stated the following:

The footage showed her place the tin on a shelf, then open the tin, remove a bundle of notes and place it on the shelf with other bundles. She then paused and picks up a bundle of notes from the shelf and places it back in the tin. She then leaves the safe. 16

[42] It was Ms Moroney’s evidence that the applicant explained to Mr Lack why she went through the actions observed in the CCTV footage. Firstly, the applicant explained to Mr Lack that she returned $5,000 to the safe monies to refloat the tin for the next shift. She also noted that when she placed the money on the shelf in the safe and went to close the float tin she realised the morning Supervisor would do this the following day. Accordingly, she returned $5,000 from the shelf back to her tin.

[43] During the meeting on 17 February 2012, Mr Lack relied on a report from Mr Nash, who had previously reported the safe monies were down $50 on 9 February 2012. The applicant stated Mr Lack relied upon Mr Nash’s report which suggested the bundle of $50 notes that was short was not a bundle that had been in the safe on 7 February 2012 due to the way the bundles were stacked. The applicant subsequently denied substituting “a short bundle of $50 notes and stealing $50”. 17

[44] During the meeting the applicant also confirmed that she was not the only person who had access to change box monies on 8 February 2012. In that regard only one float had been used on 8 February 2012. Moreover, other Supervisors and staff had changed monies or had been involved in TAB and Keno activities that day. With respect to the allegations concerning variances, it was Ms Moroney’s evidence that Mr Lack produced a list of variances incurred in recent times. Ms Moroney subsequently suggested to Mr Lack that in her view the Club had very poor change-handling procedures. Variances could not be tracked physically in circumstances where all unders involving the TAB and Keno were made up from poker machine monies.

[45] In cross-examination Ms Moroney sought to explain her interpretation of the CCTV footage relied upon to dismiss the applicant. In her view the applicant placed the money on the safe shelf and when she went to close the tin, she realised she did not need to do this as the supervisor would do it the next day. Accordingly she returned the $5,000 from the shelf back to her tin.

[46] Mr Arnold sought to discredit Ms Moroney by suggesting that during the course of the meeting on 17 February 2012, the applicant did not say that after placing the money on the safe shelf and proceeding to close the tin, she subsequently realised she did not need to do this as the supervisor would do it the next day. Accordingly she returned the $5,000 from the shelf back to her tin. In that regard Ms Moroney was not swayed from her view that the applicant had raised this point during the meeting on 17 February 2012. 18

[47] In re-examination Mr Acev compared Ms Moroney’s evidence to the Statement of Mr Francis where at Paragraph 6 he stated “Mr Lack asked Ms De Arman in words to the effect, ‘Why would you need to swap a bundle of $50 notes in the safe?’” It was Mr Francis’ evidence the applicant provided no response.

[48] Ms Moroney also confirmed a list setting out 12 variances between 23 November 2011 and 8 February 2012 was tabled by Mr Lack during the meeting on 17 February 2012. In that regard she stated the list of variances set out as Attachment SL1 (“SL1”) to Mr Lack’s Statement, setting out some 26 variances that occurred between 21 July 2011 and 8 February 2012, was not tabled at the meeting on 17 February 2012. She further stated that the respondent produced no evidence to support their allegations against the applicant concerning the variances incurred. She confirmed that the first time she had seen SL1 was during the course of proceedings.

RESPONDENT

Mr Simon Lack

[49] Mr Lack’s evidence comprised a written Statement and a number of attachments dealing with issues relating to the change box variance incident on 14 January 2012 and also the $50 short-fall incident that occurred on 8 February 2012.

[50] In relation to the change box variance incident, Mr Lack deposed that on 16 January 2012 he reviewed the trade reports for the previous weekend and noticed a significant negative variance of $983.45 in the change box balance on Saturday, 14 January 2012 when the applicant was the operator.

[51] He approached the applicant on Tuesday, 17 January 2012 for an explanation concerning the negative variance to which the applicant responded: “It could have been some stuff up with the TAB” and “Maybe it was something to do with a customer’s TAB deposit or withdrawal from their account. Maybe the blue button was not pressed to complete the transaction”. 19 In that regard Mr Lack deposed that further investigation revealed no anomalies with the TAB, Keno or poker machine reconciliations which could have accounted for the negative variance. The money has never been accounted for.

[52] In his written evidence Mr Lack outlined the end of shift change box procedure for the duty Change Box Operator as follows:

1. The TAB takings are reconciled.

2. The Keno takings are reconciled.

3. The poker machine float is balanced to $75,000.

4. The figures for the end of the day are entered into the Daily Bar Float Balance Sheet.

5. All notes, $2 coins, excess $1 coins, 50 cent coins and vouchers are placed in the red tin which is then placed on the trolley, along with coins of other denominations and used tills.

6. The trolley is taken to the safe room where everything is unloaded and placed on the appropriate shelves.

[53] Mr Lack further explained that once the monies had been placed in the safe there should be no changing or swapping of any monies from the trolley, including money within the red tin, with any of the monies that were previously in the safe. He further stated that swapping and changing of monies is against procedure. 20 In relation to the 8 February 2012 incident, Mr Lack deposed the morning rostered Supervisor is responsible for checking and confirming that all totals are correct as recorded on the Daily Bar Float Balance Sheet from the reconciliation completed at the close of trade each night by the relevant Change Box Operator.

[54] At approximately 9.00am on 9 February 2012 Mr Nash came to Mr Lack’s office and the following conversation ensued:

Nash: I have just counted the monies in the safe and have discovered that one of the bundles was $50 short.

Lack: Really? I’ll check it out.

Nash: I’m just letting you know so I can cover myself. 21

[55] Shortly after his conversation with Mr Nash, Mr Lack viewed the relevant CCTV footage from the previous night where he noticed some suspicious activity from the applicant who was the Change Box Operator on the night of 8 February 2012. Mr Lack noticed that when the applicant was in the safe she removed a bundle of $5,000 from the safe shelf and swapped that bundle with another bundle of $5,000 from the red tin. He stated this was against procedure because the money in the red tin should not be touched once it is returned to the safe. He further stated that in the process of swapping the bundles the applicant hesitated before placing the bundle at the bottom of the pile on the safe shelf. This event occurred at 23.51.28 of the CCTV footage. Shortly thereafter he went to the safe area where Mr Nash was working and the following conversation ensued:

Lack: Frank, the bundle that was short, was it the bottom one?

Nash: Yeah, it was the bottom one.

Lack: Thanks. 22

[56] Mr Lack deposed that he subsequently reviewed the Daily Bar Float Balance Sheet for 8 February 2012 where the applicant had entered $10,000 as the total amount of $50 notes that were in the safe and a negative variance of $16 for the “PM Float”. He also noted that Mr Nash had crossed out the $10,000 amount on the Balance Sheet and entered the correct amount of $9,950 for the total amount of $50 notes that were in the safe. Mr Nash also amended the negative variance for the PM Float to $66. A copy of the relevant Balance Sheet was attached to his Statement. 23

[57] At approximately 10.30am on 9 February 2012 Mr Lack left a message on the applicant’s mobile telephone to contact him. The applicant returned his call at approximately 3.00pm and the following conversation ensued:

Lack: Vickie, we need to have a meeting.

Applicant: What is it about? The $983.00?

Lack: Yes, plus more than that.

Applicant: Do I need to bring someone with me?

Lack: Yes. How is Friday at 9.30am?

Applicant: Okay. 24

[58] Mr Lack deposed that the meeting on 10 February 2012 was attended by the applicant, Mr Cooper, a Bar Attendant and Ms Hall, the Administration Manager. During the course of that meeting, Mr Lack informed the applicant: “Vickie, you are responsible for most of the significant change box errors when compared to other staff”. Mr Lack further deposed that at that stage of the meeting he had provided the applicant with a list of variances greater than $40 that had occurred between 23 November 2011 and 8 February 2012. In response the applicant did not give him any explanation concerning why these variances occurred. In relation to the 14 January 2012 negative variance incident the applicant stated “Maybe the subtotal of a TAB customer didn’t clear and the total had been added to the next customer’s payout figure”. In response Mr Lack suggested the Change Box Operator would normally press the blue button before either the customer could collect their ticket or when processing a payout. It was Mr Lack’s evidence that the applicant did not respond. 25

[59] Mr Lack subsequently showed the applicant the relevant CCTV footage, particularly at 23.51.28. Mr Lack further suggested that during the viewing of this footage the applicant started to shake. Mr Lack asked the applicant why she swapped the bundle of $50 notes from the red tin with a bundle of $50 notes from the safe shelf. In reply the applicant stated “We often swap money over in the safe” and Mr Cooper also confirmed that monies were often swapped. 26

[60] Mr Lack further deposed that in response to the question “Why would you swap $5,000 for $5,000? It defies belief that you would swap the same amount of money over”, the applicant did not provide any response whatsoever. After asking Mr Cooper the same question, he responded “Well I could not see the CCTV footage. I was not there and can’t explain it”. 27

[61] Mr Lack subsequently replayed the CCTV footage at 23.51.28 which showed the applicant swapping the money in the safe. In relation to that video footage, the following ensued:

Lack: Why would you place the swapped bundle at the bottom of the pile? The bundle that you swapped over and put at the bottom of the pile of the $50 notes was short $50. Don’t you think this looks suspicious?

Applicant: Yes. It does look suss.

Lack: It looks like you are hoping that the Supervisor the next morning would come in and not count all the money in the safe, that maybe they come in and tally $5,000, $10,000, $15,000 rather than count all the money individually. Then two weeks later it might be discovered that a bundle was $50 short and we all wonder how that happened and when.

[62] In relation to that statement Mr Lack deposed there was no response from the applicant or Mr Cooper. Mr Lack subsequently placed the applicant on suspension until her Union representative was available on Friday, 17 February 2012. The meeting on 17 February 2012 comprised the applicant, Ms Moroney and Mr Francis. During the course of that meeting Mr Lack deposed the applicant had failed to explain the variances that had occurred in recent months with the change box. At that juncture Ms Moroney enquired as to whether termination was being considered and Mr Lack replied that it was. In response to a question from Ms Moroney, Mr Lack explained the change box procedures in-depth and he acknowledged she was not happy with those procedures. Ms Moroney noted that employees other than the applicant also had access to the change box monies. Mr Lack replied that the Supervisor and a change box relief person had access. In the course of this conversation Mr Lack stated that he did not agree with Ms Moroney’s contention that the applicant could not be held solely responsible for any discrepancies or variances. Mr Lack subsequently showed Ms Moroney, and others at the meeting, the relevant CCTV footage at 23.51.28. Mr Lack identified the time when the applicant lifted a bundle and placed it with another bundle which was later found to be $50 short. In regard to that CCTV footage, Ms Moroney stated “It does not show that she pocketed $50”. 28

[63] The meeting adjourned for a short time to allow Mr Lack to download further CCTV footage. This footage showed the applicant counting monies at the end of her shift and at 22.12.34, Mr Lack deposed he stated the following:

This footage shows that Vickie counted each individual $50 note at the end of her shift, records the amount on the daily float balance sheet and places it in the red tin. This shows no-one else has touched the money until the next morning Supervisor arrives. 29

He later showed the meeting CCTV footage of the morning shift Supervisor, Mr Nash, counting monies in the safe. At 8.27.55 Mr Lack stated the following in regard to Mr Nash’s conduct:

(This) footage shows that the Supervisor realises there is a problem with the bottom bundle. He then counts that bundle twice and discovers that the bundle is $50 short. Here is a copy of a statement by Frank Nash that states what he discovered on this morning. Frank claims that the bottom bundle was facing a different direction from the way that it was facing on 8 February. 30

[64] A copy of Mr Nash’s Statement was provided to Ms Moroney and also formed an attachment to Mr Lack’s Statement. At the request of Ms Moroney, Mr Lack provided her with a copy of the Daily Float Balance Sheet for 8 February 2012 and the discrepancies list attached to his Statement for the period 23 November 2011 to 8 February 2012.

[65] Following a further denial by the applicant that she did not take the $50, Mr Lack suggested the meeting should adjourn to Tuesday, 21 February 2012. Later that day he sought further advice from Clubs NSW and subsequently telephoned the applicant to advise her of the respondent’s decision to terminate her employment. A letter of termination, together with a statement of service and an employment separation certificate, were subsequently sent to the applicant. Relevant copies were attached to Mr Lack’s Statement. Following the applicant’s dismissal, Mr Lack contended that the change box variances from March and April 2012 totalled $41.08, which was a significant improvement from previous months.

[66] Mr Lack’s written evidence also referred to further CCTV footage showing the applicant on her shift on 8 February 2012. That footage showed the following sequence of events:

1. At 21.38.10 the applicant starts collecting the TAB monies from the front bench.

2. At 21.38.33 the applicant places the TAB monies on the rear bench.

3. At 21.40.47 the applicant takes a yellow envelope in preparation to place the TAB monies into.

4. At 21.41.14 the applicant starts taking the TAB monies and stacking them into her hand.

5. At 21.41.25 the applicant gets a rubber band from the change box draw to put around the TAB monies while serving two customers going to the rear of the gaming lounge.

6. At 21.41.29 the applicant takes a second look into the gambling lounge.

7. At 21.41.31 the applicant turns very quickly and starts putting the TAB monies in the yellow envelope.

8. At 21.41.41 the applicant seals the yellow envelope.

9. At 21.41.43 the applicant has money in her hand that appears to be a $50 note.

10. At 21.41.45 the applicant appears to have something in her left hand.

11. At 21.41.46 the applicant briefly moves her hand out of the view of the CCTV camera.

12. At 21.21.50 the applicant does not appear to have anything in her hand. 31

[67] In relation to the applicant’s Statement filed in these proceedings, Mr Lack confirmed that any variance that occurred at the changeover of the AM Change Box Operator and the PM Change Box Operator was recorded in the Daily Bar Float Balance Sheet. He further explained the responsibility for any positive or negative variance recorded at the time of changeover is assigned to the AM Change Box Operator. 32 Conversely, the PM Change Box Operator is responsible for any variance that occurred from that changeover. Mr Lack also confirmed that the procedure for employees who required change for their till was to hand the relevant monies to the Change Box Operator for conversion to the required denomination.33 Mr Lack rejected the contention of the applicant, made during the course of the meeting on 10 February 2012, that she altered the bundle of notes in the safe because it was sitting crookedly. Mr Lack also strongly denied that he accused the applicant at that meeting of taking the $50 on 8 February 2012. With regard to the 17 February 2012 meeting, he denied accusing the applicant of stealing the $50, but rather asked her in words to the effect, “Vickie, do you still deny that you took the $50?”34

[68] In further evidence-in-chief arising as a result of a number of questions posed by Mr Arnold, Mr Lack confirmed the following:

He had never had cause to question the honesty or integrity of Mr Nash and in that regard the relevant CCTV footage shows that Mr Nash counted the safe monies twice on 9 February 2012. 35

[69] In relation to the $983.45 variance that occurred on 14 January 2012, Mr Lack maintained his view that the applicant was responsible for that variance. Mr Lack denied that other persons or parties could have caused the variation. He based that contention on the fact that the TAB, Keno and poker machine reconciliations were performed that day without error, with the $983.45 still outstanding. He acknowledged that during the course of the applicant’s shift on 14 January 2012 it was probable that a relief person and perhaps a Supervisor would have had access to the TAB that day. However at the end of the day it was the applicant who, as PM Change Box Operator, counted the money, reconciled it and subsequently recorded her deliberations in the Daily Float Balance Sheet. It was Mr Lack’s evidence that staff are trained in TAB procedures and against that backdrop it was unlikely the variance could be attributed to a simple excess payout to a TAB patron.

[70] Mr Lack stated it was his opinion that during her shift, the applicant took out an extra $50 note from the poker machine drawer and placed it in the TAB drawer in the knowledge that some time later in the shift she would get the opportunity to remove it. 36 Mr Lack noted that the CCTV footage was not synchronised. He also stated that once the Daily Float Balance Sheet had been completed, the relevant staff member could not return to the safe and then change money. He confirmed the Daily Bar Float Balance Sheet is double-checked the next morning by the morning Supervisor. Mr Lack also confirmed that during the course of the meeting on 17 February 2012, when the applicant and Ms Moroney were shown the relevant CCTV footage, the applicant could offer no explanation at all to support her action to swap a bundle of $5,000 for another bundle of $5,000.

[71] In cross-examination Mr Lack stated that during the shift the Supervisor and relief person had access to the change box area. In relation to the variances allegedly caused by the applicant, Mr Lack stated the respondent had no evidence he could point to that proved the applicant engaged in the transactions which subsequently caused the variations. Mr Lack also confirmed that in relation to the variances raised in evidence in these proceedings, the applicant had not received any written warnings. Mr Lack was emphatic that at no point during the meeting on 10 February 2012 did he accuse the applicant of stealing. It was his evidence that the relevant CCTV footage at 21.41.43 showed she had a $50 note in her hand. In relation to the variances relied upon to dismiss the applicant, Mr Lack stated no formal disciplinary meetings had been conducted with the applicant. In relation to the relevant CCTV footage which showed a $50 note in the hand of the applicant, Mr Lack confirmed there was no footage which showed her placing the $50 note on her person or in her clothing. In that regard Mr Lack stated the footage showed the applicant “concealing $50 in her hand”. 37 It was Mr Lack’s evidence that in his view it was not possible that Mr Nash could have removed the $50 note. He based that view on what he believed was the suspicious activity of the applicant as recorded in the relevant CCTV footage. In relation to variances generally, it was Mr Lack’s evidence that all unders and overs are apportioned to the PM change box and an investigation was subsequently undertaken to ascertain who might be responsible.

[72] Mr Lack contended that if a Change Box Operator or Supervisor were found to be clearing money out of the float tin into the safe, contrary to established procedures, they would face a warning rather than dismissal. 38 It was Mr Lack’s view that in the event the Tribunal determined that the applicant should be reinstated there would be a number of operational impediments including respect from other staff. In that regard Mr Lack stated that in the event of reinstatement the respondent would accept that order and “we’d all have to move on”.39

Ms Karen Hall

[73] Ms Hall has been employed by the respondent since March 2009 and was appointed Administration Manager in September 2009. Ms Hall was present at the meeting convened on 10 February 2012 to discuss the variance and $50 incident issues. Her evidence largely confirmed the evidence of Mr Lack in so far as the conduct of that meeting was concerned. In relation to the applicant’s statement that “she took that particular bundle because it was sitting crooked” on the safe shelf, Ms Hall denied the applicant stated words to that effect during the course of the meeting. However she did confirm that during the meeting Mr Cooper said words to the effect “Sometimes when I’m supervisor I swap bundles”. 40 She also confirmed that during the course of that meeting “Mr Lack did not accuse (Vickie) of taking the $50 and (she) didn’t deny taking the $50 at any point during the meeting”.

[74] In cross-examination Ms Hall stated that during the course of the meeting on 10 February 2012 the applicant speculated on reasons for the variance of $983.45 on 14 January 2012. Ms Hall also reiterated her belief that at no time during the meeting did Mr Lack accuse the applicant of taking the $50 nor at any time did the applicant deny taking the money.

Mr Frank Nash

[75] Mr Nash commenced employment with the respondent in March 2006. He was appointed a Supervisor in March 2008. Mr Nash deposed that one of his duties as the AM Supervisor is to reconcile and confirm the Daily Bar Float Balance Sheet from the previous night’s trade. He further deposed that when he reconciled the Daily Bar Float Balance Sheet for 7 February on 8 February 2012, he faced all the bundles of money on the safe shelf in the same direction.

[76] When reconciling the Daily Bar Float Balance Sheet for 8 February on 9 February 2012 Mr Nash found two bundles of $50 notes in the safe had been stacked on top of each other. In that regard he noticed that the bundle of $50 notes that was on the bottom of the stack was facing the opposite direction to the top bundle. Further, the bottom bundle was short $50 and accordingly, he reconciled the $50 notes to $9,950 rather than $10,000 that had been recorded on the Daily Bar Float Balance Sheet the night before by the applicant. Shortly thereafter he approached Mr Lack to advise the reconciliation was short $50. Approximately 15 minutes later Mr Lack approached him and the following conversation ensued:

Lack: Was it the bottom bundle?

Nash: Yes.

[77] In further evidence-in-chief Mr Nash confirmed that he counted the monies twice to confirm that one bundle was short $50.

[78] In cross-examination Mr Nash confirmed that an incoming Change Box Operator inherited the variances of the previous Change Box Operator working that day. He also confirmed that when he informed Mr Lack about the short bundle, neither Mr Lack, Mr Francis, or any other employee from Administration said words to the effect “let’s go back to the safe and count it again”. 41

[79] It was Mr Nash’s evidence that when he was supervising the change box area the relevant cashier could not transfer monies from the float tin to the safe. However he did acknowledge a reference by Mr Acev that Ms Giles had given evidence and confirmed a practice exists of clearing money so as to keep a minimum amount in the float tin. Mr Nash was also unaware of any formal cash handling/cash clearance procedures in place for the respondent's cashiers.

Mr Samuel Francis

[80] Mr Francis has been employed by the respondent since January 2010 and his position is Assistant Manager. Much of Mr Francis’ evidence confirmed the details of the meeting conducted on 17 February 2012 between Mr Lack, Ms Moroney, the applicant and himself. With respect to the applicant’s written Statement, it was Mr Francis’ evidence that he did not recall that Mr Lack had accused the applicant of deliberately taking $50 from a bundle in the safe. He also denied the applicant’s contention that Mr Lack had accused her of stealing during the meeting. In the alternative, he did recall Mr Lack asking the applicant to explain why the bundle of $50 notes was $50 short and the applicant being unable to explain why this was the case. 42

[81] With reference to Ms Moroney’s Statement and the CCTV footage, it was Mr Francis’ view that the footage showed the applicant in the safe area taking a bundle of $50 notes from the shelf in the safe and putting it in the red float tin and then taking a bundle from the red float tin and putting it back underneath the $50 bundles on the shelf. He disagreed with Ms Moroney’s contention that during the meeting on 17 February 2012 Mr Lack had accused the applicant of being responsible for the list of variances incurred between November 2011 and February 2012.

[82] In cross-examination Mr Francis agreed the respondent’s change box area was not a secure area in the sense that it was not locked at all times. In that regard he agreed the CCTV footage showed the door was “chocked open” and that should not have been the case. Mr Francis also confirmed that during the course of a shift a number of staff, other than the cashier, had access to the change box area, particularly during breaks.

[83] Mr Francis also stated that he could not recall the respondent convening any formal disciplinary meetings with the applicant concerning her work performance. He was unaware whether the respondent had issued any formal written warnings for unsatisfactory work performance or conduct. In relation to the variances issue, Mr Francis agreed that the document did not provide any evidence to suggest that the applicant caused those variances. It was also his view that during the meeting on 17 February 2012, Mr Lack did not produce any corroborative evidence linking the applicant to the variance of $983.45 that occurred on 14 January 2012. Mr Francis also agreed that during the period between March and June 2012 variances have continued but it was his opinion the situation had improved since the applicant’s dismissal. He agreed with the proposition that it would not be fair to accuse an employee of variances where it could not be shown that they had actually caused them.

[84] Immediately prior to final submissions being put by the parties, Mr Arnold tendered the yellow TAB and Keno envelopes 43 used by the applicant on the night of the 8 February 2012 incident. The applicant was subsequently recalled for further examination-in-chief by Mr Acev. It was the applicant’s evidence that the envelopes were those used by her on 8 February 2012 and she had not written anything against the “denomination section marked $100” on either envelope.

[85] In further cross-examination by Mr Arnold, the applicant stated that since her dismissal, she had been caring for her elderly parents in Grafton and was in receipt of the carer’s allowance and carer’s pension, which amounted to approximately $950 per fortnight. In the event of reinstatement, the applicant stated she would be prepared to return to Soldiers Point and work for the respondent.

SUBMISSIONS

For the Applicant

[86] At the outset Mr Acev referred to the applicant’s termination of employment letter dated 17 February 2012, which stated the reasons for dismissal:

1. Repeated discrepancies in balancing the Change Box whereby you are responsible for the majority of significant errors when compared to other staff.

2. Events on Wednesday, 8 February 2012 where $50 went missing from the Change Box as a result of your actions.

3. A serious breach of end night balancing procedures.

[87] With respect to the change box discrepancies, the evidence suggested that the applicant was responsible because she was the PM cashier. There was no evidence that the applicant caused the variances and in any event, other staff had access to the change box area during breaks and the like. The PM cashier cannot be held responsible for those variances “inherited” from the AM cashier. 44

[88] In relation to the variances issue, the respondent had not issued any warning letters to the applicant nor had it involved her in formal counselling sessions. 45 The applicant was “ambushed” on 17 February 2012 when the respondent put an incomplete list of variances to her without supportive documentation. This was procedurally unfair.

[89] In relation to the $50 shortfall incident, Mr Lack’s evidence failed to substantiate that the applicant stole the $50. 46 It was Mr Lack’s evidence that the applicant’s handling of the money in the safe was procedurally incorrect. Yet when pressed whether such a breach would give rise to dismissal, Mr Lack’s response was “No... a warning would have been issued”.47

[90] It is clear that an allegation of theft was put to the applicant during the 17 February 2012 meeting. However, the employment separation certificate did not mention “theft” or “misconduct” but rather stated the reasons for the separation were “serious breach of procedures and failure to satisfactorily perform duties”. 48 In that regard, the respondent’s conduct was inconsistent with Regulation 1.07 of the Fair Work Regulations 2009 which define “serious misconduct.”49

[91] Moreover, the alleged “failure to satisfactorily perform duties” cannot be deemed misconduct: Mr Acev submitted the respondent “does not come within a bull’s roar” of satisfying this Tribunal that Mr Lack’s belief that during her shift the applicant moved a $50 note from one drawer to the next for the purpose of it being removed later for personal gain. 50 There was also no evidence to show the $50 note that was in her hand at 12.41.43 was subsequently put in her pocket. The respondent must both allege and prove the misconduct actually occurred.

[92] Mr Acev maintained the applicant’s dismissal was harsh, unjust, or unreasonable and urged the Tribunal to order reinstatement. In support of that proposition, Mr Acev provided the following authorities:

1. Selvachandran v Peteron Plastics Pty Ltd 51

2. Briginshaw v Briginshaw 52

3. Pastrycooks Employees, Biscuit Makers Employees and Flour and Goods Workers Union (NSW) v Gartrell White (No 3) 53

4. Culpeper v Intercontinental Ship Management Pty Ltd 54

For the Respondent

[93] Mr Arnold submitted the respondent’s decision to dismiss the applicant on 17 February 2012 was, on the evidence, reasonably open to it in the circumstances and on the basis of the balance of probabilities. Accordingly, the dismissal was not harsh, unjust or unreasonable. There was a valid reason for termination and “specifically, theft of money”. 55

[94] The applicant was given two opportunities to respond to the allegations in the company of a support person.

[95] There was no requirement for the respondent to provide warnings to the applicant given the circumstances of this case.

[96] The respondent is a small club and does not employ a dedicated Human Resource Specialist. However, the respondent is a member of Clubs NSW and that organisation provides it with Human Resources related advice.

[97] The decision to dismiss the applicant was based on a number of money handling discrepancies for which the applicant was responsible for in the months preceding her termination together with the fact that the applicant could not provide a plausible explanation with respect to her “activity in the safe and how the $50 note may have gone missing”. 56

[98] The relevant CCTV footage indicated various suspicious activity on the part of the applicant within the safe area and when counting $50 notes for the $5,000 bundles. 57 The applicant could not explain why she placed one bundle of $50 notes with another.

[99] Mr Arnold relied on the following authorities to press the respondent’s case that there was a valid reason for dismissal:

1. Rejfek v McElroy 58

2. Briginshaw v Briginshaw 59

3. Liu v Star City Pty Limited 60

Consideration and Finding

[100] Section 385 of the Fair Work Act 2009 (“the Act”) relevantly provides that a person has been unfairly dismissed if the Tribunal is satisfied that the person has been dismissed and the dismissal was harsh, unjust or unreasonable.

[101] Section 387 sets out the criteria to be considered by the Tribunal in determining whether a particular dismissal is harsh unjust or unreasonable and provides the following criteria must be taken 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.

Section 387(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):

[102] It was submitted that as the applicant was not guilty of serious misconduct the failure to pay her notice of termination makes the termination unfair.

[103] The applicant was dismissed summarily rather than with the applicable notice.

[104] There was no evidence before the Tribunal that the respondent had referred the variances or safe incidents to the police.

[105] The allegations put to the applicant during the disciplinary meetings conducted on 10 and 17 February 2012 were extremely serious. However, the role of the Tribunal in determining this matter is not whether the respondent had a reasonable belief that the applicant engaged in the conduct as alleged, but rather, whether the evidence is of sufficient quality to establish that she actually did engage in that conduct. The standard of proof to be applied to establish whether the applicant engaged in the alleged conduct is the balance of probabilities.

[106] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, the High Court observed:

When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can be validly said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities. 61

[107] The respondent bears the onus of proof of establishing that it had grounds that justified summary termination of the applicant’s employment: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White [No.3]. 62

[108] A particular termination of employment may be:

1. harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

2. unjust, because the employee was not guilty of the misconduct on which the employer acted; and

3. unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer. 63

[109] In summarily dismissing the applicant, the respondent must contend it had reasonable grounds for believing she had engaged in serious misconduct.

[110] Section 12 of the Act states the meaning of "serious misconduct" is:

“serious misconduct"has the meaning prescribed by the regulations.

[111] Regulation 1.07 of the Fair Work Regulations 2009 state:

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.

[112] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced”. 64 In that regard, the reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts of the case.65

[113] In Concut Pty Ltd v Worrell, Kirby J suggests that summary dismissal is available only in "exceptional circumstances". 66

[114] At the conclusion of the meeting on 17 February 2012, Mr Lack suggested the meeting should adjourn to Tuesday, 21 February 2012. Later that day he sought further advice from Clubs NSW and subsequently telephoned the applicant to advise her of the respondent’s decision to terminate her employment summarily.

[115] In relation to the $50 shortfall incident, the respondent had not alleged theft nor was the matter raised with the police. I have viewed the relevant CCTV footage many, many times. Having considered the CCTV evidence in its totality I am, on the balance, not satisfied the evidence before the Tribunal is of sufficient quality to persuade me that on the balance of probabilities, the applicant misappropriated a $50 note during her shift on 8 February 2012. There was also no “recount” of the safe monies following the incident.

[116] In my judgment, the relevant CCTV footage failed to show the applicant had placed the $50 note on her person. Accordingly, the extent to which the respondent, on advice, based the dismissal on that conclusion was both unjust and unreasonable. In reaching this conclusion I am not satisfied that on the balance of probabilities she engaged in serious misconduct amounting to theft.

[117] In relation to the serious breach of end night balancing procedures reason for the applicant's dismissal, it was Mr Lack's evidence that a breach of such procedures would warrant a warning rather than dismissal. 67 There were no written policies in place setting out cash handling procedures. Clearly, it was open to the respondent to warn the applicant in the circumstances of a first offence.

[118] In relation to the variances issue, the respondent became aware of the $983.45 variance incurred on 14 January 2012 shortly thereafter on 17 January, yet condoned that alleged conduct interms of not interviewing the applicant until 10 February, when she was presented with a schedule setting out twelve variances between 23 November 2011 and 8 February 2012. On the material before the Tribunal, there was no formal investigation where the respondent could have raised the longstanding variances issues with the applicant and she be given reasonable time to respond and have that response given genuine consideration. No formal warnings were in place at the time of her dismissal concerning the variance issue.

[119] Critically, there is no evidence to support the allegation that the applicant was responsible for all the variances raised by the respondent. The applicant's dismissal was also unreasonable on the grounds that it was decided on inferences that could not reasonably have been drawn. Simply stated, it is manifestly unfair to allege that a Change Box Operator is responsible for errors inherited from the previous shift or from other employees who access the change box area during the day for the purposes of relief and the like.

[120] Some instances of misconduct may be dealt with more appropriately by the provision of a final warning. In my view, single acts of misconduct are less likely to justify summary dismissal than a persistent pattern of proven misconduct. Certainly, performance issues are best dealt with an investigation and where the conduct is proven, appropriate sanctions consistent with the gravity of the conduct. However, performance isses as alleged in the respondent's termination of employment letter dated 17 February 2012 cannot be construed as serious misconduct within the meaning of Regulation 1.07. The Regulation sets out a number of examples of conduct that may constitute serious misconduct warranting instant dismissal including theft.

[121] Serious misconduct will usually be “conduct" that deeply impairs or is destructive of the basic principles of confidence or trust that is essential to the employment relationship. Mr Lack's evidence was that in the event the Tribunal found against the respondent and made an order for the applicant's reinstatement, the respondent would accept that decision. The respondent’s confidence and trust in the applicant was not canvassed.

[122] Justification for summary dismissal must be determined on an objective basis from the point of view of a neutral observer. It is not enough that an employer makes a decision which falls within an acceptable range of responses. Accordingly, it must follow that there was no valid reason for the termination of the applicant’s employment. The respondent’s decision to dismiss the applicant on 6 December 2011 was a disproportionate response taking into account her service and work history.

[123] For all of these reasons, I have concluded that the applicant's dismissal was unfair because it was harsh, unjust and unreasonable. The dismissal was harsh because of its consequences for the applicant and was disproportionate to the gravity of the conduct alleged in the letter of termination. The dismissal was also harsh because it was effected in a summary way and was unjust, because the evidence does not support the proposition that the applicant was guilty of theft.

Section 387(b) whether the person was notified of that reason:

[124] On the evidence in these proceedings, the applicant was notified of the reasons for her dismissal prior to the respondent's decision to terminate her employment was made.

Section 387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person:

[125] Procedural fairness entitles the employee to be given an opportunity to respond to allegations of improper conduct prior to dismissal. In this regard, in The Law of Employment by Macken, McCarry and Sappideen, 3rd Edition, states at pages 277-278:

Procedural fairness requires that where an employee has been warned that her or his work performance is unsatisfactory or the employee is asked to give an explanation regarding an allegation of misconduct, the employee must first be given sufficiently detailed information about the nature of the allegations and then given adequate opportunity to refute those allegations.

[126] The information concerning float variances relied upon by the respondent during the meetings on 10 and 17 February 2012, being a simple single page summary, hardly provided sufficient detail to enable the applicant to provide a comprehensive response.

Section 387(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:

[127] The applicant had a representative at each meeting.

Section 387(e) if the dismissal related to unsatisfactory performance by the person whether the person had been warned about that unsatisfactory performance before the dismissal:

[128] The applicant had not been warned concerning the variances issues.

Section 387(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 387(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:

[129] The respondent is a licensed club and a member or an employer association. It draws upon the services of that organisation for advice concerning Human Resource related services. It was also the evidence of Mr Lack that the respondent proceeded to summarily dismiss the applicant on 17 February 2012 based on the advice of that organisation. Accordingly, the size of the respondent and the absence of dedicated Human Resources staff are not relevant considerations in this case.

Section 387(h) any other matters that FWA considers relevant:

[130] I have also had regard to the period of employment of the applicant.

REMEDY

Legislation

[131] Upon finding the applicant was unfairly dismissed, the Tribunal must consider the question of remedy. The applicant seeks reinstatement. The relevant legislative provisions are set out in Sections 390 and 391of the Act as follows:

390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

Is reinstatement appropriate?

[132] The evidence of Mr Lack was that the respondent would accept a decision of Tribunal to reinstate the applicant. At no point during proceedings did the respondent argue it had lost trust and confidence in the applicant. On the material before the Tribunal, I am satisfied that reinstatement is appropriate.

[133] I have decided to order the reinstatement of the applicant to the position she was employed in immediately before the dismissal. I also propose to make an order to maintain the continuity of her employment and the period of her continuous service with the respondent. I also consider it is appropriate to make an order that the respondent pay the amount of remuneration lost in terms of wages and superannuation, by the applicant less any Centrelink payments received between 17 February and the date of reinstatement being 4 September, 2012. In that regard, the parties agreed on 21 June 2012 that the applicant's average remuneration for the six months immediately prior to her dismissal was $910 per week. The parties are directed to confer concerning the extent of Centrelink payments received by the applicant over the period 17 February to 4 September 2012.

[134] An order will be issued giving effect to this decision.

COMMISSIONER

Appearances:

Mr C Acev, Industrial Officer, United Voice - New South Wales Branch, Liquor & Hospitality Division.

Mr G Arnold, Registered Clubs Association of NSW.

Hearing details:

2012
Newcastle:
June 19, 20 and 21 (extra days for wages confirmation).

1 Statement of Applicant at para 5

2 Statement of Applicant at para 25

3 Transcript PN 415

4 PN 417

5 PN 420

6 PN 431

7 PN 425

8 PN 483

9 PN 486

10 PN 541

11 PN 548

12 PN 66

13 PN 67

14 PN 143

15 PN 150

16 Statement of Ms C Moroney at para 16

17 Statement of Ms C Moroney at para 18

18 PN 203

19 Statement of Mr S Lack at para 3

20 Statement of Mr S Lack at para 6 and 7

21 Statement of Mr S Lack at para 9

22 Statement of Mr S Lack at para13

23 Statement of Mr S Lack at para 14

24 Statement of Mr S Lack at para 16

25 Statement of Mr S Lack at para 17

26 Statement of Mr S Lack at para 17

27 Statement of Mr S Lack at para 17

28 Statement of Mr S Lack at para 19

29 Statement of Mr S Lack at para 19

30 Statement of Mr S Lack at para 19

31 Statement of Mr S Lack at para 23

32 Statement of Mr S Lack t at para 25

33 Statement of Mr S Lack at para 29

34 Statement of Mr S Lack at para 19

35 PN 600-601

36 PN 655

37 PN 771

38 PN 845

39 PN 855

40 Statement of Ms K Hall at para 4

41 PN 999-1002

42 Statement of Mr S Francis at para 16

43 Exhibit R5

44 PN 1286

45 PN 1287

46 PN 1289

47 PN 1290

48 PN 1291

49 PN 1292

50 PN 1319

51 (1995) 62 IR 371

52 (1938) 60 CLR 336

53 (1990) 35 IR 70

54 PR944547

55 Respondent Submissions Outline at para 20

56 Respondent Submissions Outline at para 12

57 PN 1342

58 (1965) 112 CLR 517

59 (1938) 60 CLR 336

60 PR903625

61 (1992) 110 ALR 449 at [451]

62 (1990) 35 IR 70 at [83-84]

63 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-468

64 (1995) 62 IR 371 at [373]

65 Rode v Burwood Mitsubishi Print R4471 at [90]

66 (2000) 103 IR 160 at [51]

67 PN 845

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