Pearljit Singh v Metro T/A Metro Trains Melbourne

[2016] FWC 2291

[2016] FWC 2291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pearljit Singh
v
Metro T/A Metro Trains Melbourne
(U2014/16160)

COMMISSIONER ROE MELBOURNE, 14 APRIL 2016

Application for relief from unfair dismissal – Whether termination of employment harsh, unjust or unreasonable – Whether valid reason for dismissal – Dismissal related to alleged misconduct – Fair Work Act 2009, ss. 387 and 394.

Introduction

[1] This decision concerns an application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (the Act). The application was made by Ms Pearljit Singh in relation to the termination of her employment with Metro Trains Melbourne Pty Ltd (Metro). Ms Singh commenced employment with Metro in May 2004 as a Leading Station Assistant and was a Station Officer Grade 3 at the time of her dismissal on 19 December 2014. Metro opposes the application. It contends that the termination was not unfair and that Ms Singh was dismissed from her employment as a result of serious misconduct.

[2] Vice President Watson dismissed the application on 10 July 2015. 1 That decision was quashed on appeal on 18 December 2015. The appeal bench remitted the matter for rehearing before me.2

[3] The parties relied upon the material before Vice President Watson in the original hearing and supplemented that material with further evidence and submissions.

[4] Evidence before Vice President Watson was given by the following persons:

• Ms Pearljit Singh – former Station Officer Grade 3.
• Ms Emily Roden – Customer Services Manager, Metro.
• Mr Damian Di Santo – Business Partner – Maintenance – People and Performance, Metro.
• Ms Kirby Hodkinson – Customer Service Leader (Central), Metro.
• Mr Shaun Dias – Station Master Level 7, Metro.
• Ms Kathy Prince – Manger, People and Performance Operations, Metro.

[5] Evidence on re-hearing was given by:

• Ms Singh (Further statements of 4 November 2015 and 4 February 2016).
• Ms Sonnet (Statement provided 14 February 2016).
• Mr Birenda Rana (Protective Services Officer. Statement made on 25 November 2014).
• Mr Antonio D’Amato (Protective Services Officer. Statement made on 4 December 2014).
• Mr Ahmed Zeeshan (Protective Services Officer. Statement made on 28 November 2014).
• Sergeant Wombwell (Investigation Documents produced in response to order to produce). 3

• Mr Shaun Dias (Subject to cross examination in respect to evidence given at the first instance hearing).

[6] Mr D’Amato and Sergeant Wombwell were not required for cross examination. Apart from Ms Singh and Mr Dias the witnesses who gave evidence at the first instance hearing were not required to give further evidence.

[7] The direct witnesses to and participants in the events of 24 November 2014 which led to the dismissal of Ms Singh were as follows:

• Ms Singh and Ms Sonnet who were in the Parliament Station booking office and control room and who handled the lost property of a passenger Ms Lazzaro when it was handed in by the Protective Services Officers at 7.20pm.
• Mr Dias, the Station Master who was present when the lost property was handed in to Ms Singh by the Protective Services Officers and for a short time afterwards.
• The Protective Services Officers, Mr Rana, Mr Zeeshan and Mr D’Amato who found the lost property on the station platform at about 7.15pm and who handed the property to Ms Singh at 7.20pm and who spoke to Ms Lazzaro after she had recovered her bag from the booking office at 7.48pm. At this point Ms Lazzaro stated that phones and money were missing and the PSOs and Ms Lazzaro returned to the booking office at 7.54pm to discuss this matter with Ms Singh and Ms Sonnet.
• The cleaner, Mr S, who was present in the area of the booking office and control room during at least two periods between the time that the bag was handed to Ms Singh and the time when + phones at 7.54pm.

[8] Metro trains did not call Ms Lazzaro or Mr S to give evidence.

[9] Ms Singh’s representatives provided a time line (Appendix A) with their opening submission upon rehearing. The time line was not disputed by Metro.

[10] We should add to the time line that Ms Lazzaro, the owner of the bag, collects the bag from Ms Sonnet at the booking office at approximately 7.48pm and then returned to the booking window with the PSOs at approximately 7.54pm.

[11] Ms Lazzaro signed for the bag but did not check the contents at 7.48pm. Shortly afterwards she spoke to the PSOs and checked her bag and observed that two mobile phones were missing. The PSOs confirmed that they had seen the mobile phones in the bag when they first found it. Ms Lazzaro and the PSOs returned to the booking window at 7.54pm. They then spoke to Ms Singh at the control room exterior door who said that no phones had been found. The CCTV footage shows that two of the PSOs, Mr Zeeshan and Mr Rana, were allowed into the control room by Ms Singh. Ms Lazzaro and Mr D’Amato were in the doorway outside. The CCTV footage shows that the door remained open for some time. Eventually Ms Singh asked that the door be closed for security reasons. One of the phones was found on the floor in the control room shortly after Mr Zeeshan and Mr Rana entered the control room at 7.54pm. Its sim card had been removed. The second phone, with its sim card also removed, was found later that night in the men’s public toilets at the other end of the station.

[12] When the matter was heard at first instance there was a suggestion that Ms Singh had some involvement in a similar incident in December 2012. However, I am satisfied by the uncontested evidence of Ms Singh that the incident was never raised with her and that the report produced by the police shows that she was not involved in receiving customer lost property on that occasion and she was merely present when the customer came to collect property which could not be located. Metro did not submit that I should find that Ms Singh was involved in any previous incident of mishandling lost property.

[13] During proceedings there was speculation by various parties about how long it would take to remove a sim card from an iPhone. I consider it obvious that the time taken could vary considerably depending upon the tool used and the competence of the person. However, I have no doubt that it is possible to remove the sim card from an iPhone in a few seconds.

The nature of the direct evidence

[14] At the first instance hearing Ms Singh represented herself. When Ms Singh gave evidence and questioned witnesses she consistently made submissions criticising the contentions of Metro and its witnesses. When referring to the CCTV evidence Ms Singh was making submissions about what she believed the CCTV showed to disprove contentions or hypotheses she believed were being made by Metro and its witnesses. Much of the time Ms Singh was not giving evidence about what she did or saw at the time the events took place in November 2014. The only other direct participant in the events of 24 November 2014 who gave evidence in the proceedings at first instance was Mr Dias. This meant that Ms Singh was focused on the conclusions reached by the Metro witnesses who conducted the investigation into the events rather than on the events themselves as she or others had directly witnessed them.

[15] Ms Singh in the proceedings at first instance suggested that the PSOs might have been involved and that they may have pretended to pick up the phone from under the desk. She also said that Ms Sonnet also considered that the PSOs behaviour was suspicious. Mr Dias confirmed that Ms Singh and Ms Sonnet had concerns about the PSOs behaviour. Mr Dias at the rehearing was not sure whether the issue was raised by Ms Sonnet or Ms Singh but he was sure that both were present and agreed with the concerns. 4 Ms Lazzaro made a complaint about the PSOs and this was investigated by the police and no adverse finding was made. I consider that Ms Singh was in the main making submissions and engaging in speculation which was focused on defending her innocence rather than giving direct evidence.

[16] At the re-hearing Ms Singh under cross examination at times continued to focus on rebutting the submissions of Metro and the conclusions of its investigators. However, at the re-hearing, with the assistance of her legal representative, there was a much stronger focus in her evidence on what she had seen and done on the night of 24 November 2014.

[17] At the re-hearing I also had the benefit of the direct evidence of Ms Sonnet and the PSOs. There was no evidence from two of the direct participants, the cleaner and the person who lost their property, Ms Lazzaro.

When were the phones removed from the bag?

[18] It is not in dispute that two phones were in Ms Lazzaro’s bag when it was found on the platform at about 7.15pm, that the phones were not in the bag when it was collected by Ms Lazzaro at 7.48pm and that when the phones were discovered later that evening the sim cards had been removed. It is reasonable to conclude, and it is not contested, that the phones were in the bag when it was handed in to Ms Singh at 7.20pm.

[19] I consider it reasonable to narrow the time window during which it is likely that the phones were removed. Ms Sonnet sent a fax to Flinders Street itemising the contents of the bag which did not include the phones at 7.41pm. It is reasonable to conclude that the phones were removed prior to that fax being sent. Even if Ms Sonnet was involved in the removal of the phones she knew that Ms Lazzaro was returning to collect the bag and it would make no sense for her to send a fax confirming that the phones were not present if they were still in the bag. For the reasons discussed below I consider it unlikely that the phones were removed between 7.20pm and 7.23pm. It is therefore most likely that the phones were removed between 7.23pm and 7.41pm.

[20] In the statement Mr Dias, the station master, made to police on 28 November 2014 he makes it clear that:

• He was in the hallway talking to Ms Singh about the Christmas lunch when the PSOs knocked on the door, Ms Singh opened the door and one of the PSOs told Ms Singh that a bag had been found on platform 2.
• He saw Ms Singh take the bag from the PSO and place it on the control room desk. Ms Singh then took a bottle of alcohol out of the bag and handed it to Mr Dias. He took the bottle to inspect it. The control room was dark and so he took it down the corridor to another room to do the inspection.
• Approximately 30 seconds later he heard the phone ring and heard something about a lost bag and returned to the control room with the bottle.
• He saw the bag was on the table and Ms Singh was going through a wallet and he assumed she was looking for identification. It took Ms Singh about a further minute to find identification.
• Mr Dias left at the conclusion of the phone conversation once identification had been confirmed. 5

[21] Nothing in the subsequent evidence of Mr Dias significantly added to or detracted from the statement taken a few days after the incident.

[22] It is not in dispute that during the period immediately after the bag was received by Ms Singh, the station master, Mr Dias, was present and Ms Sonnet was in the vicinity. Ms Sonnet was either in the doorway between the control room and the booking office or in the booking office during this period. Ms Singh observed that there was a bottle which appeared to be alcohol and removed it from the bag as alcohol is not permitted in the station office. Mr Dias took the bottle down the corridor to examine it. Ms Singh and Mr Dias confirm that the reason for this is that the light in the control room is very dim. Ms Singh says that she followed Mr Dias down the corridor. Mr Dias cannot confirm whether or not Ms Singh followed him but accepts that it was possible. Ms Sonnet also accepted that it was possible and that she could only hear Ms Singh rather than see her at the time Mr Dias left with the bottle. 6

[23] Within about 30 seconds both Mr Dias and Ms Singh say that Ms Singh took a phone call from South Yarra station. Ms Sonnet says that she had no reason to doubt that time estimate. 7 Ms Singh takes a small purse from the bag which contained a number of cards and a receipt which Ms Singh thought on first glance could have been a $5 note. Ms Singh whilst still on the phone found some identification and confirmed the identity of the owner was in fact the person who was inquiring about the bag at South Yarra Station. The phone call took a minute or two. Ms Singh wrote the details concerning Ms Lazzaro’s identity on a piece of paper. Ms Singh was told that Ms Lazzaro was going to return to Parliament station from South Yarra station and would come to collect the bag. Mr Dias was present until the end of the call. Ms Sonnet gave evidence that she was also aware of the phone call and that the owner was returning to collect the bag. Ms Sonnet was present in the doorway between the control room and the booking office during some of this period and Ms Singh was aware of this.

[24] It is not suggested and I am satisfied that there was no conspiracy between Ms Singh, Ms Sonnet and Mr Dias to steal the phones. I am satisfied that Mr Dias was not involved in the stealing of the phones. I accept his evidence that he was not in the control room or the booking office between 7.24pm and 7.41pm. I am satisfied that it is unlikely that either Ms Singh, Mr Dias or Ms Sonnet removed the phones from the bag in the short period between the bag being handed in and the conclusion of the phone call at which time all three persons were aware that the bag belonged to Ms Lazzaro and that Ms Lazzaro would be shortly returning to Parliament Station to collect her bag. I am satisfied that this period of time was approximately three minutes and that the close proximity of the three persons and their focus on the bag would have meant that there was little realistic opportunity for theft to be undetected.

[25] I accept Ms Singh’s evidence that she followed Mr Dias down the corridor when he was examining the bottle. It is possible that Ms Singh could have removed the phones during the 30 seconds when Mr Dias had the bottle but I am satisfied that it is unlikely given she was following Mr Dias and she knew that Ms Sonnet was in the vicinity and that if she was not actually in the doorway she could reappear in the doorway at any time. There is no contest that it was after the phone call that Mr Dias left the control room for approximately one minute. This is observable on the CCTV so we know that the phone call was concluded by 7.23pm.

The role of the cleaner

[26] The cleaner first appears at 7.25pm, a couple of minutes after the conclusion of the phone call. The brief interaction between the cleaner and Ms Singh and then Ms Sonnet is visible in the CCTV. There is nothing in the direct witness evidence or in the CCTV footage which suggests that anything was passed between Ms Singh and the cleaner at that time. The Metro investigators considered that one or more of the phones could have been passed between Ms Singh and the cleaner at this time. However, the CCTV footage provides reasonably good vision of this interaction and I cannot observe anything being passed between Ms Singh and the cleaner. The cleaner was at all times outside of the station offices. There is no reason to doubt the evidence of Ms Sonnet and Ms Singh that their interaction with the cleaner was banal and had nothing to do with the lost property.

[27] There is also no reason to doubt the evidence of Ms Singh that she did not have a friendship or any close relationship with the cleaner. Metro did not produce any evidence, direct or hearsay, that established the existence of any prior relationship. Metro could have required the cleaner to give evidence but did not do so. I am satisfied that there was no prior friendship or close relationship between Ms Singh and the cleaner.

[28] The cleaner was inside the station office area from 7.36pm to 7.39pm.

[29] The initial Metro investigation found that the CCTV evidence showed that the cleaner was present for 13 minutes. This was clearly an error. The origins of the error may have been a clerical mistake by Ms Hodkinson who examined the CCTV footage, however, the conclusion that the cleaner was present for 13 minutes was an important part of the information considered by the other investigators in reaching conclusions about the incident. It was a significant element in the assessment of the investigators that it was likely that Ms Singh and the cleaner had colluded.

[30] Ms Prince for example in explaining why she concluded Ms Singh was involved in taking the phones stated:

“A cleaner had approached the control room twice since the phone were handed in and prior to them being given to Ms Sonnet for handling.” 8

[31] Ms Roden in explaining her reasoning for concluding Ms Singh was involved states:

“At 7.26 pm the bag passed to Ms Sonnet and at the same time the cleaner returns to the control room and enters it. He remains in the control room for 13 minutes.” 9

[32] The CCTV evidence is clear. The cleaner did not enter the station office area through the control room exterior door at any time between 7.20pm and 7.36pm. He approached the door for a few seconds at 7.25pm and had brief contact with Ms Singh and Ms Sonnet at that time.

[33] I am satisfied and it is not disputed that the only person who is known to have been inside the station office area who visited the men’s toilet at the other end of the station where the second phone was found without its sim card is the cleaner. This occurred at about 7.49pm, around the same time as Ms Lazzaro was at the booking office counter collecting her bag, without the phones present. The CCTV footage clearly shows the cleaner enter the toilets and leave the toilets and leave less than a minute later. Immediately before entering the toilets he appears to take two items from his pocket and stand stationary for about twenty seconds looking down at something in his hands. I am satisfied, and it is not contested, that the cleaner was involved in taking the phones and the removal of the sim cards.

[34] The statement made to the police by the cleaner was clearly inconsistent with the CCTV evidence. It included his statement that between 7pm and 8pm, when the phones went missing, he was alone either in the cleaner’s room or having cigarettes. He says that he entered the control room to empty bins at about 9pm. The CCTV footage shows that he was in fact present in the offices during the period when the lost property was there. The cleaner was not directly employed by Metro. He continued to work cleaning at Parliament Station for some time after Ms Singh was dismissed. 10

The CCTV evidence

[35] CCTV footage was available and in evidence. The CCTV footage relevant to the events in and around the booking office and control room comes from a single point some distance away on the other side of the entry barriers to the station from the booking office counter. There is no CCTV footage from inside the station offices including the booking office, the control room, station master office, lunch room, work space, and toilets. The only vision of what occurs inside the station offices is what can be seen through the booking office counter window. Generally it is only indistinct shadows which can be seen moving inside the booking office or in the doorway at the rear of the booking office. The only parts of the station offices which are visible are the booking office and an internal doorway towards the rear of the booking office. At times Ms Sonnet in the booking office obscures the view of what might be occurring behind her in the booking office or in the internal doorway. The view of what occurs outside the booking office is reasonably clear. Persons approaching the booking office counter or entering or leaving the station offices through the external door to the control room can be clearly seen.

[36] Behind the booking office and the control room is a large work space, toilets and lunch room and also the station master’s office. Staff can enter the large work space from the back and they would not be visible through the booking office window. They can also move from the lunch room to the control room via a door to the corridor. If this route to the control room is taken there is no need to enter the booking office and the person would not necessarily be visible through the booking office window. There is also a doorway between the booking office and the control room and persons moving directly between those two rooms through that doorway may be visible through the booking office window. However, as noted earlier, vision of this and of movement between the control room and the booking office was obscured at relevant times by Ms Sonnet in the booking office and or by customers standing at the booking office window. There is also a doorway between the large work space and the booking office at the back of the booking office when looking from the counter window. As mentioned in the previous paragraph, it is possible to see the shadow of persons moving in that doorway in the CCTV footage when the vision is not obscured by Ms Sonnet in the booking office.

[37] In the CCTV footage the doorway between the booking office and the rear work offices appears to be at the wall between the booking office and the control room. However, there is in fact a distance between the doorway and the control room wall. This is shown in the layout diagram at page 68 of the appeal book. The angle of the CCTV camera obscures the view of this area around the doorway between the booking office and control room and the side bench in the booking office along the wall between the booking office and the control room. This is important because Ms Singh and Ms Sonnet agree that this is where Ms Singh placed the passenger’s bag. Mr Millar for Metro accepted that you cannot see in the CCTV at what point the bag was transferred from Ms Singh in the control room to Ms Sonnet in the booking office. 11

[38] As part of their normal duties Ms Sonnet, Ms Singh and the Station Master move within the various rooms of the station offices and at times may be required to leave the station offices. Ms Singh is mainly required to work in the Control Room monitoring train and passenger movements on screens but she is also required to complete paper work in the work space and liaise with the Station Master and at times with the booking office. 12 Ms Singh gave uncontested evidence that she discusses with the station master the pm peak report after the end of the daily peak period (around 7pm) and this may involve going to the station master’s office.13

[39] Ms Sonnet is mainly required to work in the booking office dealing with customers at the counter but at times she may be required to move elsewhere.

[40] The CCTV footage shows that during the period from 7.23pm to 7.41pm:

• An unidentified staff member exits from the control room external door at about 7.23.24pm.
• Ms Sonnet was in the doorway to the control room or in the control room for some of the one minute period between 7.23pm and 7.24pm when Mr Dias is outside the station office area. For some of this one minute period Ms Sonnet was in the booking office serving customers.
• Ms Singh comes into the booking office at 7.26pm for a few seconds. She reaches across Ms Sonnet who is working on some paperwork at the front counter. Ms Singh appears to pick up something from the desk in front of Ms Sonnet. The bag is not visible. Ms Singh may have placed the bag on the corner of the side bench at some time before or after this point in time as this part of the side bench is not clearly visible in the CCTV. Ms Singh does not physically hand any object approaching the size of the bag to Ms Sonnet. The fact that the bag becomes clearly visible at 7.48pm when Ms Sonnet retrieves it from the side bench area and moves it into the area of the booking office which is visible in the CCTV footage reinforces this conclusion.
• At 7.27pm the view of the area behind Ms Sonnet including the door is obscured by a customer at the booking counter window for almost a minute.
• At 7.29.45pm Ms Sonnet goes to the doorway to the control room briefly.
• At 7.30.39pm a person looking like Ms Singh opens the exterior control room door and looks out and goes back in.
• At about 7.32pm Ms Singh goes through the booking office and through the door to the rooms at the back and then returns a few seconds later. At the same time Ms Sonnet goes in the direction of the control room and is not visible from 7.32.12pm to 7.32.42pm.
• At various times for brief periods during the period from 7.33pm to 7.36pm Ms Sonnet is not visible in the booking office or is partially visible in the doorway to the control room.
• Ms Sonnet is serving a customer when the cleaner enters through the control room exterior door at 7.36pm.
• During the period from 7.36pm to 7.39pm when the cleaner is in the offices, movement in the area behind Ms Sonnet can be seen at various times. There is clear movement by the cleaner at the back of the booking office at 7.38.13pm. During the period from 7.36pm to 7.39pm Ms Sonnet moves towards the control room door on a number of occasions and she is not visible for a number of short periods. Ms Sonnet is not visible for 30 seconds at one stage.
• Ms Sonnet is not at the window or visible during the period between 7.39pm and 7.40.31pm. She then returns for a few seconds and then is absent again until 7.42.13pm. It is noted that the lost property form was faxed at 7.41pm.

[41] The CCTV footage also shows that after 7.41pm Ms Sonnet is not visible for significant periods between 7.43pm and 7.48pm. During this period movement of persons can be seen through the door at the back of the booking office at various times. Shortly before Ms Lazzaro arrives another staff person exits from the control room exterior door. At 7.48pm Ms Lazzaro arrives and has a discussion with Ms Sonnet through the booking office window. Ms Sonnet goes over towards the control room door and picks up the bag. The bag is not visible until it has been picked up. Paper work is filled out. Ms Sonnet then takes the bag to the control room and then the control room exterior door opens and Ms Sonnet hands the bag to Ms Lazzaro.

The errors in the Metro investigation

[42] It is not necessary to deal comprehensively with all the errors in the Metro investigation as my main focus is on whether or not the alleged conduct occurred based on consideration of the evidence before me. However, the errors in the Metro investigation influenced the outcome of the investigation and are relevant and assist in weighing the facts. Ms Singh was understandably focused on responding to some of those errors and this affected her evidence.

[43] The major errors in the Metro investigation were:

• The fact that the cleaner was inside the station office area from 7.36pm to 7.39pm and not from 7.26pm to 7.39pm.
• The fact that Ms Sonnet does not remain visible in the booking office throughout the relevant period from 7.20pm to 7.41pm and it is not possible to conclude that she did not enter the control room. 14 Ms Sonnet leaves the booking office or is not visible in the booking office on a significant number of occasions including at some times between 7.20pm and 7.23pm prior to the conclusion of the phone call from South Yarra, between 7.23pm and 7.26pm when Metro concluded that Ms Singh was alone with the bag, between 7.26pm and 7.36pm when Metro erroneously considered that the cleaner was in the vicinity, between 7.36pm and 7.39pm when the cleaner was in the vicinity and between 7.39pm and 7.41pm when Ms Sonnet sent the fax confirming the contents of the bag.

• The fact that Ms Singh is not present in the control room throughout the period from 7.20pm to 7.41pm. 15 Ms Singh is seen in the CCTV footage in the booking office around 7.26pm and exiting to the back office at 7.32pm.

• The fact that it is possible to enter and leave the control room via another door to the corridor and not be visible through the booking office window, that is not visible on the CCTV. The possibility that Ms Singh left the control room at other times cannot therefore be excluded. The possibility that other staff entered or left the control room at other times cannot be excluded.

• The fact that other staff employees (in addition to Mr Dias) entered and left the station office area through the control room exterior door during the period after 7.20pm. 16 Although none of these staff visited the men’s public toilet the possibility that they may have had some contact with or link with the bag and the cleaner cannot be excluded.

• The fact that the CCTV footage does not show the bag being examined by Ms Sonnet on the counter directly behind the booking office window. 17

• The fact that the CCTV footage does not show Ms Singh handing the bag to Ms Sonnet at 7.26pm. 18

• The lack of proper basis for the conclusion that the phones were in the possession of Ms Singh at the time they went missing and that they were not in the bag at the time responsibility was handed over to Ms Sonnet. There is no way to determine how long there was between the time when the responsibility for the bag was handed over to Ms Sonnet and the time when Ms Sonnet actually examined and itemised the contents of the bag.

• The fact that there is no credible evidence that Ms Singh had previously been involved in mishandling lost property. 19

• The fact that there is nothing in the CCTV evidence which directly contradicts the version of events which has been consistently put by Ms Singh to the initial investigation, to the police and at the hearings of this matter. 20

The issues in dispute

[44] The key issues in dispute are:

• Did Ms Singh tell Ms Sonnet not to write up the details of the lost property?
• How soon after the phone call from South Yarra Station did Ms Singh give the bag to Ms Sonnet to itemise the contents and complete the necessary form and fax the form to the Flinders Street office?
• How soon after the bag was given to Ms Sonnet did Ms Sonnet itemise the contents and complete the necessary paperwork and send the fax at 7.41pm?
• Is there any significance in Ms Singh’s remark to the PSOs around 7.54pm that there were no phones in the bag and that the claim about the missing phones could be insurance fraud?
• Did Ms Singh point to the desk or the floor when telling the PSOs about where in the control room she had placed the bag when looking for the owner’s identity?
• Was it Ms Singh or Mr Rana who discovered the phone on the floor underneath the control room desk?
• Could the cleaner have acted alone?
• Was there a valid reason for dismissal based upon involvement in the theft of the phones?
• Was there a valid reason for dismissal based upon breach of the lost property policy?
• Was the dismissal fair?
• If the dismissal was unfair is reinstatement an appropriate remedy?

Did Singh tell Sonnet not to write up the details of the lost property?

[45] Ms Sonnet gave evidence in her 2016 statement for the rehearing that when the bag was handed in she moved to the doorway between the booking office and the control room and asked Ms Singh if she wanted her to write up the lost property. Ms Sonnet says that Ms Singh told her not to do this. Ms Sonnet says that she did not have any contact with the bag until Ms Singh handed it over to her “after she had received a call from the owner of the bag saying she was coming to collect it.” 21 Ms Sonnet says “that was the point when I completed the form cataloguing the contents of the bag”. The form was faxed at 7.41pm.

[46] Ms Sonnet did not make a statement to police or appear at the first instance hearing. Ms Roden and Mr Di Santo provided notes of an interview with Ms Sonnet on 28 November 2014. The notes do not include any suggestion that Ms Singh told Ms Sonnet not to write up the lost property. The notes record that Ms Singh was given the bag by the PSOs and at the time she was in the doorway between the booking office and the control room and the station master was present: “15 minutes after handed in bag got given to receipt and write up and looked into bag.” 22 Ms Sonnet affirmed the accuracy of this in the proceedings before me.23 Although it is not in the notes, the Metro investigation report says that Ms Sonnet said that Ms Singh gave her the bag sometime later with a piece of paper with the customer’s name written on it. The investigation report says that Ms Sonnet stated that she was standing in the Booking Office window whilst she went through the bag to receipt it into lost property and that Ms Sonnet said that she checked the cards in the wallet for the spelling of the customer’s name. Ms Sonnet agreed that when Ms Singh gave her the bag she told her to write it up.

[47] I did not observe in the CCTV footage Ms Sonnet examining the contents of the bag whilst she was standing in the booking office window.

[48] I prefer the evidence of the notes taken close to the time of the incident to the statement and evidence given more than a year after the event. The evidence given in the proceedings about the initial conversation was as follows:

“But there was some discussion that you overheard on this night after the handbag had been handed in. Do you agree with that?  -The only thing I heard was, when the bag was handed in, I asked if I - if I was to write it up and I was just told no.
….
So you were standing in the doorway of the booking office looking in?  -I was stood just out, before - the gap there for the doorway’s there, I was stood over there near the - near the desk.

And you became aware, did you, at about that point that this bottle contained alcohol?  -Yes. We were discussing what - the alcohol, we were trying to find what the alcohol content was in the bottle because we hadn’t seen the bottle before.

And Ms Singh was part of that discussion?  -She was in the control room, yes.” 24

[49] Ms Sonnet was clearly quite engaged in the process when the property was first handed in. I consider that if Ms Singh had told her not to write up the lost property then this would have been a significant matter Ms Sonnet would have raised at the time of the initial investigation. Ms Sonnet was anxious as was Ms Singh to convince the investigators that they were not responsible for the missing phones given that they had both been suspended. I consider that Ms Sonnet’s belated memory that Ms Singh told her not to write up the property at the time it was handed in was mistaken.

[50] The notes of the interview with Ms Singh taken in the metro investigation on 28 November 2014 include “told Rita not fax form to FSt”. A lost property form is attached to Ms Sonnet’s statement. It has a column headed “Delivered” and two options Yes or No. The No has been circled and then crossed out and the Yes has been circled. I note that Ms Sonnet says that the form advising that the lost property had been delivered was faxed by Ms Sonnet some seven minutes before the passenger actually collected the property.

[51] Ms Singh gave evidence that staff at the lost property office got annoyed if two forms were sent: one when the property was found and the other when the property was collected. Ms Singh says that the lost property office at Flinders Street closes at 5pm so the faxing of the form is not time critical after that time. Ms Singh says that she told Ms Sonnet some time after she had given the bag to Ms Sonnet and at the time that Ms Sonnet was writing up the lost property to send one form given that the passenger was on her way to collect the property. 25 Ms Singh explained the reason as follows:

“Why did you tell her not to fax it off? You knew that you should have faxed it?  -Because it’s closed after five o’clock, so whether you fax it and then fax it again - it would be two faxes and Andrew always calls us up and gives us a hard time, that if you know the customer is picking it up, just – after five o’clock, you can just fax it off as “yes”, saying it’s been picked up. And the booking office never had to get that blast. We are the ones who get that blast, as the controller.” 26

[52] The fact that Ms Sonnet faxed a report stating that the property had been collected some seven minutes before it was in fact collected is consistent with Ms Singh’s evidence on this matter. The fax exhibited by Ms Sonnet which has the “no” crossed out and the “yes” circled and “collected” written on the form supports Ms Singh’s evidence that she told Ms Sonnet to send only one fax. It is also supportive of her evidence of the practice encouraged by the Flinders Street lost property office. I am satisfied that Ms Singh should be believed when she says that the issue of the timing of the sending of the fax was a matter of some discussion between Ms Sonnet and Ms Singh. 27 Ms Singh gave evidence at one point that Ms Sonnet told her that she had already faxed off the report at the time she suggested that only one fax be sent. It is not necessary to decide whether or not this evidence should be accepted. Either the discussion led to the correction on the fax form or Ms Sonnet confirmed that this was in fact what she had already done. I consider the former to be more likely but either is possible.

[53] Ms Singh’s evidence at the rehearing was generally consistent with her evidence at first instance. 28 I am not satisfied that Ms Singh told Ms Sonnet not to write up the lost property report when it was first handed in. I am not satisfied that Ms Sonnet had a clear memory more than a year after the events given that she had not made any notes or an earlier statement. I consider that the absence of any mention of this matter in the contemporaneous interview notes is relevant. I am satisfied that Ms Singh and Ms Sonnet did have a discussion about sending the fax to Flinders Street given that the passenger was coming to collect the property.

How soon after the phone call from South Yarra Station did Singh give the bag to Sonnet to itemise the contents and complete the necessary form and fax the form to the Flinders Street office? How soon after the bag was given to Sonnet did Sonnet itemise the contents and complete the necessary paperwork and send the fax at 7.41pm?

[54] Ms Sonnet and Ms Singh agree that Ms Singh left the bag for her on the side bench just inside the booking office for Ms Sonnet to write up some time after the phone call from South Yarra Station. As discussed earlier this part of the bench is away from the booking office window and it is not clearly visible in the CCTV footage through the booking office window. It is very close to the doorway between the booking office and the control room. Ms Singh says that she put the bag on the bench for Ms Sonnet three to five minutes after the phone call came in from South Yarra station. 29 In cross examination Ms Singh said that it was “right after the phone call” finished.30 She also gave evidence that it was before she spoke to the cleaner at the control room exterior door which was at 7.25pm but she is not completely sure of this.31 In her earlier statements and evidence for the initial proceedings Ms Singh said that she handed the bag two or three minutes after the phone call.32

[55] Ms Sonnet agreed in cross examination that she was not sure about how much time passed between the phone call and when the bag was given to her. Ms Sonnet was not interviewed by the police and did not give evidence in the hearing at first instance. The investigation report prepared by Metro says:

• Rita confirms bag was given to Pearl in control room



• Pearl gave her the bag sometime later with a piece of paper with the customer’s name written on it



• Rita stated that she was standing in the Booking Office window whilst she went through the bag to receipt it into lost property (confirm with CCTV footage)

• Rita said she checked the cards in the wallet (describe as a little pouch with a zip around the top) for the spelling of the customer’s name



• Pearl was at the Control Room desk



• The SM was in the office



• The customer returned to the Booking Office window – confirmed her details and got her to sign the lost property book and gave her the bag



• When Rita received the bag from Pearl it didn’t contain phones or cash”.

[56] The evidence of Ms Sonnet is that the process of going through the bag and writing up the contents and then faxing the receipt was a single process. There is no suggestion in any of the evidence of a significant gap in time between these parts of the process of “writing up” the lost property. This suggests that the process occurred close to the time of the fax at 7.41pm.

[57] There is no clear direct evidence about how long it was between the time responsibility for the bag was handed over to Ms Sonnet and the time when she commenced the process of “writing up” the lost property. The handwritten note made by the metro investigation of the interview with Ms Sonnet on 28 November 2014 is that Ms Sonnet told metro at the time that it was 15 minutes after the bag was handed in that she was given “to receipt and write up” and that was when she looked in the bag. This suggests that Ms Sonnet looked in the bag and wrote it up and sent the fax sometime after 7.35pm. I am satisfied that this is the best available evidence. However, in the evidence there is little attempt to distinguish when the bag was placed on the bench behind Ms Sonnet in the booking office and when Ms Sonnet actually wrote up the contents and sent the fax. The CCTV footage shows that Ms Sonnet was reasonably busy during the relevant period. She had customers and other duties to which she attended. I am not satisfied that Ms Sonnet checked the bag and wrote up the lost property immediately after the bag was placed on the bench in the booking office.

[58] The investigation report of Metro says that the bag was handed over at 7.26pm and that it is seen on the counter in the CCTV footage. They also conclude that the writing up and recording of the contents of the bag was completed with the fax at 7.41pm. I have examined the CCTV footage in slow motion on a number of occasions and I cannot see the bag being placed on the counter around 7.26pm. The investigation report also says that Ms Sonnet stated that she was standing in the Booking Office window whilst she went through the bag to receipt it into lost property. As noted earlier I am not satisfied that the CCTV footage shows Ms Sonnet going through the bag whilst standing in the Booking Office window.

[59] I am not satisfied that the time of 7.26pm was based on any statement of Ms Sonnet or Ms Singh, the only witnesses. I am satisfied that this conclusion was based on the fact that the CCTV footage shows that Ms Singh enters the booking office and has interaction with Ms Sonnet at 7.26pm and the fact that Ms Singh consistently said that the bag was given to Ms Sonnet to write up some time not long after the phone call from South Yarra station. I am not satisfied that Ms Sonnet had a clear memory of the timing of events more than 15 months after the actual event. Ms Sonnet did not make any notes or make any written statement about the issue of the timing of the events at the time or close to the time of the events.

[60] At various times Ms Sonnet and Ms Singh say that Ms Singh gave the bag to Ms Sonnet. However, I am satisfied that this was simply a reference to the custody of the bag being transferred from Ms Singh to Ms Sonnet. I accept the evidence of Ms Singh that she placed it on the desk or bench which is close to the doorway between the booking office and the control room.

“You don’t know. But the bag left with Ms Sonnet. You handed it to her at the doorway, is that what happened? At the doorway? Where were you when it passed from one to the other?  -I just kept it on the desk which is on the right of Rita Sonnet’s work station.

And where was the bag when you checked for the bottle of alcohol?  -It was on the control desk and Shaun was present there with me.” 33

[61] Both Ms Sonnet and Ms Singh agreed that Ms Singh also put a piece of paper with the name of the passenger on it with the bag. The bag was still in that location at 7.48pm when Ms Lazzaro came to collect it because the CCTV footage clearly shows Ms Sonnet retrieving the bag from that location to show Ms Lazzaro. Both Ms Sonnet and Ms Singh agree that Ms Sonnet was asked to complete the necessary paperwork at the time Ms Singh handed over responsibility for the bag. The CCTV footage does not show Ms Sonnet or Ms Singh moving the bag prior to 7.48pm.

[62] Ms Sonnet gave evidence in the proceedings that Ms Singh gave her the wallet separately whilst she was writing up the paperwork on the lost property. Ms Singh says that she put the wallet back in the bag before she gave the bag to Ms Sonnet. 34 Ms Singh in the proceedings at first instance said that she did pick up the wallet when Ms Sonnet had it in front of her on the bench behind the booking office window to check what she had thought may have been a $5 note. Ms Singh suggested that this might have been what she was picking up in the CCTV footage between 7.26pm and 7.27pm. I am not sure whether Ms Singh was giving evidence about what she actually did and saw at the time or whether Ms Singh was making a submission or speculating about what was happening in the CCTV footage. I am not satisfied that it can be determined that Ms Singh picked up the wallet in the booking office between 7.26pm and 7.27pm. It is possible that the activity of Ms Singh in the booking office was related to some other work requirement.

[63] In the proceedings at first instance there was a focus on what Ms Sonnet was doing at 7.24.09pm in the CCTV footage. Ms Sonnet is seen bending down and picking up what appears to be a book. Ms Singh at first instance suggested that this was the lost property book and that this supported her contention that she had handed over the responsibility for the bag to Ms Sonnet by this time. I accept the evidence in the hand written notes of the original interview with Ms Sonnet that there were no witnesses to her going through the contents of the bag. I am satisfied that Ms Singh did not actually see Ms Sonnet get the lost property book or complete the entries in the lost property book. I am satisfied that from the CCTV footage one cannot draw any conclusions about when Ms Sonnet collected the lost property book and made the necessary entries. It is possible that Ms Singh’s speculation at the first instance hearing might be correct but there is no basis to reach a firm conclusion.

[64] I am satisfied that Ms Singh placed the bag on the side bench in the booking office close to the door between the booking office and the control room after the conclusion of the phone call to South Yarra station. That is, the handover occurred at some time after 7.24pm and Ms Singh then told Ms Sonnet to write up the lost property. Metro argues that it happened at 7.26pm and Ms Singh argues that it happened prior to 7.25pm when the cleaner came to the exterior control room door. There is insufficient evidence to determine exactly when the handover of responsibility occurred. It may have occurred before or after 7.26pm.

[65] It is not contested that Ms Sonnet did not look at the contents of the bag prior to writing up the contents in the lost property book and completing the relevant form. This occurred some time after 7.26pm (there is insufficient activity by Ms Sonnet in the vicinity of the bench near the door between the booking office and the control room between 7.24pm and 7.26pm) and before 7.41pm. It is not contested that Ms Sonnet was alone when she completed these steps. There is insufficient evidence to determine when during the period from 7.26pm to 7.41pm Ms Sonnet examined the contents of the bag.

[66] I am satisfied that the process of examining the bag and recording its contents would take several minutes. Ms Sonnet would not have been fully visible in the CCTV footage when examining the contents of the bag. The longest periods of time when Ms Sonnet is not visible in the CCTV footage are between 7.36pm and 7.41pm and particularly between 7.39 and 7.41.

[67] The fax exhibited by Ms Sonnet which has the “no” crossed out and the “yes” circled and “collected” written on the form was sent some seven minutes prior to the property being collected by Ms Lazzaro. Ms Sonnet obviously decided not to delay sending the fax until Ms Lazzaro came to collect the property. In these circumstances there is no obvious reason why there would be any delay between the time Ms Sonnet examined and wrote up the contents of the bag and the time when she faxed the form. This suggests that the time when the contents of the bag were checked may have been close to 7.41pm. As discussed earlier the most reliable evidence of Ms Sonnet is what she said in the Metro investigation shortly after the event. Her evidence then was that she did not commence checking the bag until 15 minutes after it was discovered.

[68] I am satisfied that it is likely that Ms Sonnet examined the contents of the bag during the period after 7.36pm and shortly before sending the fax at 7.41pm. I cannot exclude the possibility that she examined the contents at an earlier time.

Is there any significance in Singh’s remark to the PSOs around 7.54pm that there were no phones in the bag and that the claim about the missing phones could be insurance fraud?

[69] The PSOs say that Ms Singh suggested that the phones might not be missing and that the claim might be an insurance fraud when first told about the missing phones at 7.54pm. Ms Singh responded to this evidence as follows:

“Then she said, “There were no phones. We always check the items in the presence of another person. These people do all such things just to claim insurance”. I’ll pause at that point. Did you say that?  -Yes, I probably could have.
You did?  -Yes.” 35
….
“You’re blaming the owner of the bag?  -Yes because that’s what happened a few years back when this guy came up and he didn’t know anything about it, and he just said, “Just give me a report saying he wanted to claim insurance”, so just off that recollection, I just said that.” 36

[70] I am satisfied that at the time Ms Singh made these remarks she was aware of the contents of the bag from discussion with Ms Sonnet and/or from seeing the report Ms Sonnet had faxed. There were 13 minutes between the form being faxed and the arrival of the PSOs during which this is likely to have occurred. She was aware that Ms Sonnet had not included mobile phones in the content of the bag.

[71] I am not satisfied that Ms Singh’s statement suggests that she may have been involved in stealing and interfering with the phones. It is quite common for employees who deal with the public to become cynical about their claims and complaints. I do not suggest that such behaviour is reasonable, simply that it is not uncommon or unusual.

[72] Once the suggestion that the phones may have been stolen was raised all involved, except Mr Dias, became understandably defensive and keen to point to matters that implicated those other than themselves.

[73] I am not satisfied that Ms Singh’s comment that the claim the phones were missing could have been an insurance fraud supports a finding that she had been involved in the theft of the phones.

[74] If Ms Singh had in fact been involved in stealing the phones and had placed the phone under the desk in the control room I consider it unlikely she would have said this as she would have known that the phone without the sim card was likely to be shortly discovered.

Did Singh point to the desk or the floor when telling the PSOs about where in the control room she had placed the bag when looking for the owner’s identity?

[75] Ms Singh says that she was asked where the bag had been placed when it first came in and she says she pointed to the control room desk at the end towards the exterior door. She says that she did not point to the floor.
[76] PSO Rana says that Ms Singh was pointing to the floor when she said “this is where we opened the bag. Oh! there is a phone lying there it must have fallen off.”

[77] I consider the evidence of the PSOs that Ms Singh pointed to the floor to be implausible. Mr Dias and Ms Singh both give evidence that the bag had been placed on the desk not the floor and I therefore consider it most unlikely that Ms Singh would have pointed to the floor.

Was it Singh or Rana who discovered the phone on the floor underneath the control room desk?

[78] The evidence about who discovered the phone underneath the control room desk is inconsistent.

[79] Ms Singh says that PSO Rana bent down and picked up a phone and said there is a phone here. 37

[80] Ms Lazzaro who was standing in the doorway says that it was one of the PSOs who discovered the phone. 38

[81] Mr Rana in his statement says that Ms Singh was pointing to the floor when she said “this is where we opened the bag. Oh! there is a phone lying there it must have fallen off.” However, in examination in chief by Mr Millar for Metro Mr Rana said:

“Then what happened?  -And then she pointed to the girl and said “This is where I opened up the bag and I checked and my manager checked it too” and when just behind her, under the table, there was a phone and I don’t recollect if it was me who pointed out that phone or was it she who said “That’s one lying out there” and then she get up and gave it to the lady who it belonged to ….” 39

[82] Mr Zeeshan says in his statement the same thing that Mr Rana said in his statement. In cross examination Mr Zeeshan said:

“What I am asking you about now, Mr Zeeshan, is your actual recollection of what occurred on that night, and I am suggesting to you that it may be that the phone was first noticed in its position on the ground by yourself or Mr Rana who were in the control room at the time?  -It wasn’t me for sure.

Might Mr Rana have seen it first?  -No. What I remember, not him as well.

His evidence that he gave about 25 minutes ago in this position, is that that’s what may have happened?  -But I don’t remember. The only thing what I’m sure is it wasn’t me and it wasn’t me to check or have a look at the phone. What I remember we still I can’t remember the word - here wait - I checked the bag and then she phoned the phone and then she thought here we go there is the one phone here, and then she pass the word - I still don’t remember if she passed it to me and then I passed it to a customer or passed to Rana and the customer.” 40

[83] Mr D’Amato did not see what happened and cannot recall who handed the phone to Ms Lazzaro.

[84] Ms Sonnet is not sure whether it was the PSO or Ms Singh who discovered the phone.

[85] The Statements of Mr Rana and Mr Zeeshan in substantial and important sections use identical phrasing. I was not satisfied that Mr Zeehsan could provide a satisfactory explanation for this. I consider it likely that Mr Zeeshan had access to Mr Rana’s statement when he made it. I am not satisfied that Mr Zeeshan’s evidence on the critical disputed facts is reliable.

[86] I prefer the clear and consistent evidence of Ms Singh which is supported by Ms Lazzaro that the phone was discovered by a PSO and not by Ms Singh. I note that in proceedings neither Mr Rana nor Mr Zeeshan were certain about who discovered the phone.

[87] However, if I am wrong and if Ms Singh was mistaken and it was she who discovered the phone first, I do not consider this to be strongly suggestive of her guilt. If she had in fact been involved in the theft and knew that the sim card was missing from the phone it is hard to see what advantage would attend to her pointing out the phone. The suggestion seems to be that her discovering the phone illustrates that she knew where it was or that her discovering the phone was a ruse to show that she had nothing to hide. Neither of these theories is any more believable than she just happened to be the first to see the phone.

Could the cleaner have acted alone?

[88] Based on the evidence I consider that there are four possible scenarios.

a. Scenario 1.

Ms Singh takes the phones prior to handing over responsibility for the bag to Ms Sonnet. Ms Singh tells the cleaner about the phones in her short conversation with the cleaner at 7.25pm. She then colludes with the cleaner when he is present between 7.36pm and 7.39pm and the cleaner takes one phone and the other phone is left or dropped under the desk in the control room. The cleaner panics and leaves the other phone in the toilet. The fundamental problems with this scenario are: Why does Ms Singh need to collude with the cleaner? Why would Ms Singh collude with the cleaner when there is no evidence of a prior relationship? If she has stolen the phones why not keep them herself? Why would Ms Singh take the phones when she knew that the owner would be returning to collect the bag within the next ten minutes? Why would Ms Singh undertake such activity given the very high chance of being observed by Ms Sonnet or Mr Dias? Why leave the phone under the desk when Ms Singh knew the owner was shortly returning? If Ms Singh was worried that she might be discovered why didn’t she give both phones to the cleaner to take out of the station office area? In this scenario Ms Singh would have handled both phones but one of the phones was fingerprinted and Ms Singh’s prints were not found.

b. Scenario 2.

Ms Sonnet takes the phones when going through the contents of the bag. Ms Sonnet colludes with the cleaner in the period between 7.36pm and 7.39pm and the cleaner takes one phone and the other phone is left or dropped by either Ms Sonnet or the cleaner under the desk in the control room. The cleaner panics and leaves the other phone in the toilet. Ms Sonnet doesn’t go through the bag with Ms Lazzaro when she comes to collect it because she knows that the theft of the phones would be discovered. The fundamental problems with this scenario are the same as those which apply to the scenario involving Ms Singh and the cleaner with the added problem of the shorter period in which to organise the conspiracy.

c. Scenario 3.

Some staff person other than Ms Singh or Ms Sonnet who is present in the station office area in the period before Ms Sonnet checks the contents of the bag takes the phones and then colludes with the cleaner in the period between 7.36pm and 7.39pm and the cleaner takes one phone and the other phone is left or dropped by either the unknown staff person or the cleaner under the desk in the control room. The cleaner panics and leaves the other phone in the toilet. The fundamental problems with this scenario are: Given the cleaner could not be aware of the presence of the phones until 7.36pm how could the conspiracy be organised in the short period of time between 7.36pm and 7.39pm when other staff are nearby? If the other staff person wanted to steal the phones, why did they need or want to enter a conspiracy with the cleaner?

d. Scenario 4.

The cleaner acts alone. For this scenario to be feasible it is necessary for Ms Sonnet to have failed to check the content of the bag until after 7.36pm when the cleaner enters the station office area. The cleaner takes the phones. He drops or leaves one phone under the desk in the control room area either accidentally or because he panics or is disturbed. The cleaner exits the station office area at 7.39pm and shortly thereafter leaves the other phone in the male public toilets at the other end of the station which is a number of minutes’ walk away. The issues with this scenario are: It depends upon Ms Sonnet failing to check the contents of the bag until after 7.36pm. It depends upon the cleaner deciding to look in the bag to discover the phones – the phones are not visible without this occurring. It depends upon the activity of the cleaner not being observed by either Ms Sonnet or Ms Singh.

[89] The cleaner acting alone is a plausible scenario. Scenarios one to three listed above are less plausible. There are possible answers to the concerns raised in respect to those scenarios but taken together the issues raised demonstrate their implausibility. There might be other possible scenarios than those listed above but I cannot think of one that would be more plausible than the cleaner acting alone.

[90] Unfortunately Ms Sonnet does not appear to have been closely questioned in the initial Metro investigation about how long after responsibility for the bag was transferred to her she checked and recorded the contents of the bag and as to whether there was any time gap between this and sending the fax. Of course estimates of such time intervals are notoriously difficult but they are virtually impossible more than a year after the event which was the next occasion when Ms Sonnet was asked to focus on these matters.

[91] For the reasons discussed earlier I am satisfied that it is likely that Ms Sonnet did not check the bag until after 7.36pm.

[92] Ms Sonnet agreed she was not paying any particular attention to what the cleaner was doing. 41

[93] It is common for cleaners to be seen as “part of the furniture” and other workers may go about their normal business without paying much attention to what the cleaners are doing. I am satisfied that Ms Sonnet and Ms Singh were not paying any particular attention to what the cleaner was doing in the station office between 7.36pm and 7.39pm.

[94] I am satisfied that there were significant periods when the bag was in the control room when Ms Sonnet was not watching the bag as she was attending to other duties. When Ms Sonnet was at the front counter she was not watching the bag which was on the side desk behind her. The bag was not visible to Ms Singh during that time.

[95] I am also satisfied that when the bag was in the control room there were probably periods when Ms Singh was not watching the bag. She was not watching the bag for a short period when she followed Mr Dias down the corridor. If the handover to Ms Sonnet occurred some time after the phone call from South Yarra concluded it is possible that Ms Singh would have been doing other things and the bag would have been unattended during at least some of that period prior to the handover.

[96] If the bag was lying unattended on the corner of the side bench in the booking office then if Ms Sonnet was busy at the booking office window or temporarily elsewhere and if Ms Singh was busy in the control room and/or temporarily elsewhere, the cleaner could have taken the phones and removed the sim card from at least one of them. The cleaner might then have accidentally or deliberately dropped one of the phones under the desk. He may have been disturbed, in a hurry, nervous or have had second thoughts. Ms Singh would not necessarily have noticed the phone being put under the desk even if she was in the control room. The lighting in the control room is poor. Her attention may have been on the control room video screens or on other work functions. Ms Singh may have also been out of the control room at the time.

[97] I do not find it surprising that Ms Singh did not notice the mobile phones in the bag when she extracted the wallet or purse to find the identity of the owner. As noted earlier the control room was dark. Although the PSOs had seen the phones their position in the bag may well have changed during the transit from the station platform to the station office.

[98] The fact that the cleaner went, without any significant delay, from the station office area to leave the second phone in the toilets suggests that he may have been disturbed or had second thoughts when he took the phones in the station office area. This is consistent with him dropping or leaving the first phone under the control room desk on his way out.

[99] I am satisfied that the most plausible scenario which explains the theft of the phones and their recovery without the sim cards, is that the cleaner acted alone.

Relevant Legislation

[100] The task of the Commission in this matter is to determine whether the termination is properly described as harsh, unjust or unreasonable. I will now turn to consider each of the matters specified in Section 387 of the Act.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Was there a valid reason to dismiss Singh for interfering with the phones?

[101] I do not find Ms Singh’s consistent evidence that she did not examine the contents of the bag and did not see the phones in the bag to be implausible. When the bag was first given to her she was focused on the bottle of alcohol. She did not need to look in the bag to extract the bottle. When the phone call came from South Yarra station she was focused on finding identification of the owner of the bag. It is uncontested evidence that the control room is dark; Mr Dias had to take the bottle outside to be able to determine whether or not it was an alcoholic beverage bottle. I am satisfied that Ms Singh did not look carefully in the bag and I am satisfied that she did not see the phones in the bag.

[102] I am not satisfied that Ms Singh took the phones from the bag in the period from 7.20pm to 7.23pm when the phone call from South Yarra concluded. After the phone call from South Yarra Ms Singh, Mr Dias and Ms Sonnet were aware that the owner of the bag would be returning in the next 10 to 15 minutes to collect the bag. In these circumstances I consider it highly unlikely that an employee with long service and experience who valued their job would decide to steal the contents of the bag.

[103] I am not satisfied that Ms Singh had a close relationship with the cleaner. In these circumstances I consider it highly unlikely that she could or would arrange a conspiracy with the cleaner to steal the mobile phones in the very short conversation that occurred at the exterior door of the control room at 7.25pm. After the bag became Ms Sonnet’s responsibility it would have been very risky and highly unlikely that Ms Singh would have taken the phones given that she could not be sure that Ms Sonnet had not examined the bag. I also consider it unlikely that a conspiracy could be arranged in the period 7.36pm to 7.39pm when the cleaner was in the station office area.

[104] Throughout the initial investigation including by the police, the initial hearing and the re-hearing Ms Singh has been largely consistent in her evidence. There was nothing about her conduct as a witness that led me to doubt her credibility. As discussed earlier there were some issues with her submissions and speculation, particularly at first instance, when she was focused on trying to rebut the findings and theories of Metro investigators. However, such defensiveness is understandable when a long serving employee is effectively accused of theft and her denials and explanations are not believed. It is also understandable in circumstances where there were some significant errors in the conclusions of the Metro investigators and Ms Singh particularly focused on those errors.

[105] For the reasons discussed earlier I am satisfied that the most plausible scenario which explains the theft of the phones and their recovery without the sim cards is that the cleaner acted alone. I am not satisfied Ms Singh was involved.

[106] I am therefore not satisfied that there was a valid reason to dismiss Ms Singh for interfering with the phones.

Was there are valid reason to dismiss Singh for breach of lost property policy?

[107] It is not contested that Ms Singh failed to carry out the lost property procedure in two respects. Firstly, she failed to examine the contents of the bag in full view of the finder. Secondly, she failed to issue a receipt to the finders.

[108] The policy requires that an item likely to contain cash or valuables must be examined in full view of the finder. I am satisfied that a handbag is likely to contain valuables. Ms Singh said that normally the finder will tell her if there are valuables in the property. This may be true but I am not satisfied that this is a reasonable excuse for not checking the property in front of the finder. Ms Singh accepted that when she got the wallet or purse out to check for the identity of the owner she saw what she thought was a $5 note but which later turned out to be a receipt. By this stage it was too late for her to examine the contents in front of the finders and give them a receipt.

[109]
It is not contested that there was no receipt book available in the station office. However, at first instance it was accepted that a cash receipt book could have been used. The absence of a receipt book does not excuse a failure to provide the finder with some documentation.

[110] I also accept that the PSOs might not have correctly followed procedure. However, this does not excuse the failure of Ms Singh to follow procedure.

[111] Ms Singh agreed it was common sense to take good care of property. She may also have left the property unattended for a period. However, the evidence is insufficient to determine this matter.

[112] I am satisfied that there was nothing unreasonable in Ms Singh leaving the task for writing up the property and faxing the relevant paper work to Ms Sonnet. It was uncontested evidence that this work was Ms Sonnet’s and not Ms Singh’s general responsibility. In the proceedings at first instance Mr Dias accepted that it was Ms Sonnet who was responsible for handling lost property and the lost property book. 42 It was suggested that Ms Singh left the property unsecured. Obviously property will need to be unsecured during the period that it is being examined and processed. It is uncontested evidence that this task was given to Ms Sonnet.

[113] Ms Singh had signed that she was familiar with the policy. 43

[114] I am satisfied that there were two significant breaches of policy by Ms Singh. She failed to ensure that the contents of the bag were examined in front of the PSOs and to issue the PSOs with a receipt.

[115] The fact that Mr Dias, the station master and Ms Singh’s direct superior, was present when this occurred is significant. Mr Dias obviously condoned the behaviour and he did nothing to intervene.

[116] I also note that Ms Sonnet also clearly breached reasonable procedure in that she failed to get Ms Lazzaro to check the bag when she came to collect it. I am also satisfied that there was some delay between when Ms Sonnet had control of the bag and when she wrote up the contents and sent the fax. I am also satisfied that the bag was unattended for some periods of time when it was within Ms Sonnet’s control. Ms Sonnet was stood down for a short period of time at the start of the investigation. However, there is no evidence of any action being taken against Ms Sonnet in respect to her behaviour on the night.

[117] There is no evidence that Ms Singh had previously breached lost property policy.

[118] There was only one instance of which we are aware in the long period of her employment where she was counselled for breach of another policy.

[119]
I accept the submission of Metro that what occurred in this situation illustrated the importance of the policy. Although the theft would not have been avoided if the policy had been followed, the subsequent investigation would have been much easier and it is more likely that action could have been taken against the offender.

[120] These considerations considered as a whole make it less sound and defensible for Ms Singh to be dismissed from her employment for the breach of lost property policy. I do not consider that a decision to terminate Ms Singh for breach of lost property policy in these circumstances could be described as well founded.

[121] The breach of policy was significant but the absence of earlier breach or warning, the presence of the station master and the failure to take action against Ms Sonnet for poor lost property management lead me to the conclusion that the failure to follow lost property policy was not a valid reason for termination.

[122] If I am wrong about this matter and the breach of the lost property is a valid reason then, as a consideration under Section 387(h), I am satisfied that the dismissal was harsh or disproportionate, notwithstanding the valid reason, because of the length of Ms Singh’s service, the absence of any warning or earlier breach of policy, the generally good record of Ms Singh, the presence of the station master and the failure to take action against Ms Sonnet in respect to the same incident.

Notification of the Reason

[123] The termination letter dated 18 December 2014 accurately identifies the reasons for termination.

Opportunity to Respond

[124] The decision to terminate Ms Singh’s employment was made after a number of interviews with Ms Singh during which she was given the opportunity to explain her part in the matters under investigation and respond to the allegation that she was involved. I accept that she was only given limited opportunity to view the CCTV footage but this does not alter my general conclusion.

Unreasonable opportunity to allow a support person

[125] There was no such refusal.

Warnings

[126] The issue of a warning is not relevant in respect to the allegation of involvement in theft as this is an issue of conduct not performance. The issue of failure to follow policy is a mixed question of conduct and performance. Ms Singh was aware of the lost property policy. However, to the extent that the breach of lost property policy is a matter of performance, she had not previously breached the policy or received a warning in respect to such breach.

Employer resources

[127] These factors are not relevant given the size and sophistication of Metro as an employer.

Any other matters

[128] Ms Singh submits that the punishment of dismissal is disproportionate to the misconduct. She submits that any policy breaches are minor. Ms Singh was aware of the importance of handling lost property according to procedures and was aware of the procedures.

[129] I consider that the length of Ms Singh’s service and her generally positive employment record to be relevant other considerations in determining whether or not the dismissal was harsh or disproportionate.

[130] For the reasons discussed earlier dismissal for breach of policy in the circumstances of this case is harsh or disproportionate.

Was the dismissal unfair?

[131] I have found that Ms Singh was not involved in the theft of the mobile phones. This is the most significant factor in my conclusion that the termination was unfair. I have found that Ms Singh did breach the lost property policy. Although I found that this was a significant matter I did not find this to be a valid reason. If I am wrong in this conclusion I find that dismissal for this reason would be harsh or disproportionate in the circumstances. Taking into account all of the factors in Section 387 of the Act as discussed above I am satisfied that the termination of Ms Singh’s employment was unjust, harsh and unreasonable.

Remedy

Is reinstatement an appropriate remedy?

[132] Ms Singh has consistently sought reinstatement.

[133] It is not disputed that Ms Singh had approximately 11 years’ service, received several promotions, and two certificates of appreciation for her contribution to the workplace. It is also accepted that there was no disciplinary history.

[134] Metro submits that it has lost trust and confidence in Ms Singh and that reinstatement would therefore be inappropriate.

[135] Distrust of an employee by an employer cannot of itself be a sufficient reason to decline to order reinstatement. Were it otherwise, an employee could never be reinstated where their employer believed or suspected they had engaged in misconduct. 44 As Gray J observed in Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd:45

“Resort to an assertion that trust and confidence in a particular person have been lost cannot be a magic formula for resisting the compulsory reinstatement in employment of the particular person.” 46

[136] To the extent that Metro’s loss of confidence and trust in Ms Singh relates to her alleged involvement in the theft of the mobile phones I am confident that Metro, as a large employer with sophisticated human resources management, will appreciate the shortcomings of its investigation which led to an unsound conclusion.

[137] I do not accept that the failure of Ms Singh to follow the lost property policy on this occasion is sufficient to justify loss of trust and confidence. It is common for employees to fail to perform to expectations or to breach policies. Generally a large employer will approach such matters in respect to a long serving employee with a good record by providing appropriate warnings and training prior to determining that trust and confidence is lost. Of course there are situations where a single breach of employer policy does justify dismissal and could lead to loss of trust and confidence. Although the breach in this case was significant it was not sufficiently grave as to justify termination or a loss of trust and confidence.

[138] The element of trust and confidence is of diminished importance where an employer is a large corporate entity. 47Metro is a large organisation, and there are many roles within it which Ms Singh could perform, at many different locations.

[139] In these circumstances, I am not satisfied that reinstatement is inappropriate, pursuant to Section 390(3)(a) of the Act. I am satisfied that reinstatement is the appropriate remedy.

[140] I also consider pursuant to Section 391(2) that it is appropriate to make an order to maintain the continuity of Ms Singh’s employment and that the period of Ms Singh’s continuous service with Metro should also be maintained. To do otherwise would be unfair given Ms Singh’s length of service.

[141] I will order that reinstatement be to the position in which she was employed immediately before her dismissal. That is, she should be reinstated to the position of Station Officer Grade 3. However, the location of Ms Singh’s appointment need not necessarily be at Parliament Station. Metro should be able to determine the location having regard to business needs and to the travel time for Ms Singh. Ms Singh shall have liberty to apply for variation of this aspect of the Order should she consider that the location is determined unfairly.

Lost pay

[142] In respect to the issue of an order for restoration of lost pay under Section 391(3) I take into consideration the following:

a. Ms Singh did engage in misconduct when she failed to follow the lost property policy.

b. Ms Singh has not earned any income from employment or other work in the period since the dismissal.

c. Ms Singh has not been successful in finding employment despite applying for a number of jobs.

d. Ms Singh is unlikely to earn any income from employment or other work during the period from the making of this order and the actual reinstatement.

e. The period of 12 months since the dismissal during which Ms Singh has suffered significant loss of earnings and the dignity of employment.

[143] I therefore consider that it is appropriate to make an Order to restore the earnings lost because of the dismissal. I also consider it appropriate to reduce that amount by 50% due to the misconduct of Ms Singh in failing to follow lost property policy. As I found earlier this failure impacted on the capacity to effectively investigate and deal with the theft of the phones and may have had some impact on the reputation of Metro.

[144] The Order will require Metro to restore 50% of the earnings lost because of the dismissal within 21 days. The parties are at liberty to apply for variation of this aspect of the Order in the event that agreement cannot be reached in respect to the amount.

Conclusions

[145] An Order for reinstatement and restoration of lost pay is published separately.

COMMISSIONER

Appearances:

Mr P Doyle appeared for the Appellant.

Mr R Millar appeared for the Respondent.

Hearing details:

2016

Melbourne

March 8

2016

Sydney by video to Melbourne

March 21

Appendix A

 1   [2015] FWC 4275.

 2   [2015] FWCFB 6711. The rehearing was conducted using the appeal matter number (C2015/3464) but this Decision is issued in respect to U2014/16160.

 3   Exhibit M2.

 4   PN1372 to PN1381.

 5   Exhibit M2, at pages 20 and 21.

 6   PN722 to PN727.

 7   PN734.

 8   Statement of Ms Prince, at para 16(f).

 9   Statement of Ms Roden, at para 43.

 10   Exhibit A3, Radio and Touch Card Movement Register shows that he worked on 22 December 2014.

 11   PN541 to PN543.

 12   PN180 and PN203ff.

 13   PN190.

 14   Metro gave evidence that Ms Sonnet remained visible and did not enter the control room when the phones were in the bag. See for example evidence of Mr Di Santo and Statement of Ms Roden at para 45.

 15   See for example evidence of Mr Di Santo which asserts the contrary.

 16   See for example evidence of Mr Di Santo that asserts the contrary.

 17   Metro reached conclusions in part based upon this assertion.

 18   See evidence of Ms Hodginson that the bag is handed over at 7.26.06pm.

 19   Metro acted on the basis that there was such evidence.

 20   Metro concluded that Ms Singh’s version of events was not consistent with the CCTV evidence.

 21   Exhibit M3, at para 20.

 22   Appeal Book, at page 48.

 23   PN763.

 24   PN711 and PN715 to PN717.

 25   PN247 and PN281 to PN283.

 26   PN284.

 27   PN281 to PN284.

 28   Appeal Book, at page 267.

 29   PN242.

 30   PN295.

 31   PN298 and PN293.

 32   See the interview notes attached to Mr Dias’ first statement.

 33   PN489 to PN490

 34   PN243.

 35   PN346 to PN347.

 36   PN365.

 37   PN319.

 38   Exhibit M2, at page 17.

 39   PN846.

 40   PN1184 to PN1186.

 41   PN773 to PN778.

 42   Appeal book, at 397 and 398.

 43   PN511.

 44   See Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191.

 45 [2000] FCA 627.

 46   Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627 at 45.

 47   Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627 at [42].

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