Pearljit Singh v Metro T/A Metro Trains Melbourne

[2015] FWC 4275

[2015] FWC 4275

FAIR WORK COMMISSION

DECISION

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

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

VICE PRESIDENT WATSON MELBOURNE, 10 JULY 2015

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] The matter was heard at the Fair Work Commission (the Commission) on 22 May, 3 June and 24 June 2015. Ms Singh appeared on her own behalf and Mr Colin Broadbent appeared for Metro. Evidence 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

Background

[3] Ms Singh commenced employment as a Leading Station Assistant with Metro in May 2004. At the time of her dismissal on 19 December 2014, she was working as a Station Officer Grade 3. The circumstances that led to the commencement of an investigation by Metro into an incident involving lost property can be summarised as follows:

• On 24 November 2014, a customer left her bag on a bench on a platform at Parliament Station;



• Three Protective Services Officers (PSOs) found the bag at approximately 7:14pm and handed it in as lost property to Ms Singh at the Control Room at approximately 7:20pm;



• The owner of the bag came to collect it at approximately 7:48pm and then returned at approximately 7:54pm and reported that two mobile phones and $400.00 were missing from the bag (the claim regarding the missing money was subsequently withdrawn by the customer and not pursued by Metro as the customer could not be certain that the money was in the bag at the time);



• A search of the office area where Ms Singh worked uncovered one of the phones under her desk without a sim card;



• The second phone was found by a cleaner in the male toilets at the north end of the station, also without a sim card, sometime after 1:30am that evening.

[4] Ms Roden was informed of the incident during the course of the evening of 24 November 2014. The matter was regarded as serious because the loss or theft of customer property while in Metro’s control reflects poorly on Metro. It has a policy that seeks to ensure that all lost property is handled properly and the chances of lost property going missing are minimised.

[5] As a result of the report she received, Ms Roden considered that lost property appeared to have been tampered with. She instigated an investigation into the incident in order to try to explain the events. The police were also notified and a number of employees made statements to the police. The Metro investigation was conducted primarily by Ms Roden and Mr Di Santo. In the early stages of the investigation, Ms Hodkinson was asked by Ms Roden to review the CCTV footage and document what the footage revealed. Ms Prince also assisted towards the end of the process and attended the final interview.

Evidence regarding the circumstances leading to the termination

[6] Evidence was given by those involved in the investigation that it initially appeared possible from their viewing of the CCTV footage, that either Ms Singh or another employee (Ms Rita Sonnet) who was in a room that is adjacent to the Control Room (the Booking Office) may have caused the incident either through a failure to deal properly with the lost property handed in or by attempting to steal the property. Both employees were stood down with pay pending the outcome of the investigation.

[7] Meetings between the employees and Metro took place on 28 November 2014 to discuss the incident and the related events. Ms Roden and Mr Di Santo attended these meetings on behalf of Metro. Both gave evidence that after the first meeting with Ms Sonnet, they agreed that it did not seem likely that she had done anything in contravention of the Metro lost property procedure or that would have caused the loss of the mobile phones. The bag was handed to her by Ms Singh at about 7:26pm and then, as required, she completed a report that recorded the lost property into the system and faxed it to Flinders Street Station at 7:41pm. She had not entered the Control Room and therefore it did not seem possible that she could have any responsibility for the phone being under Ms Singh’s desk in that room. At the conclusion of the interview it was confirmed that Ms Sonnet would no longer be stood down and she was returned to duty.

[8] At Ms Singh’s interview she explained that she had been handed the bag by the PSOs and that they had not mentioned any valuables being in the bag. Ms Singh explained that she took the bag from the PSOs and noticed that there was a bottle in it which appeared to contain alcohol. She showed the bottle to Mr Dias, the Station Master, to seek his guidance as alcohol is not permitted on the station. He inspected the bottle in his office along a corridor from the Control Room and returned the bottle to her and she put it in the bin. Ms Singh alleged that she did not notice any mobile phones and that she went through the wallet in the bag in an attempt to find details of the owner.

[9] Ms Singh said that she then handed the bag to Ms Sonnet in the Booking Office as she had received a phone call that the customer was coming back to Parliament Station to pick up the bag. In doing so, it was apparent that Ms Singh had not complied with the proper procedure for receipting lost property. Both Ms Roden and Mr Di Santo gave evidence that, at the conclusion of this meeting, they were concerned that Ms Singh had failed to comply with the procedure and/or had some involvement with the interference with the mobile phones.

[10] Prior to the meetings with Ms Sonnet and Ms Singh, both Ms Roden and Mr Di Santo had reviewed the CCTV footage and noted the following from the period when the bag was handed in by the PSOs:

• Ms Sonnet was serving customers at the Booking Office window and did not appear to enter the Control Room;



• At about 7:23pm the Station Master left the building through the Control Room door leaving Ms Singh and Ms Sonnet in the building;



• Ms Singh was alone with the lost property from the time it was handed in until she gave the bag to Ms Sonnet at about 7:26pm;



• At about 7:25pm a cleaner approached the Control Room and had a conversation with a person in the Control Room. As Ms Sonnet was visible at the Booking Office window, a conclusion was drawn that this conversation was with Ms Singh;



• At about 7:26pm when the bag is passed from Ms Singh to Ms Sonnet the cleaner returns to and enters the Control Room. He remains in the Control Room for 13 minutes. At the hearing of the matter it became apparent that the time the cleaner returned to the Control Room was in fact 7:36pm and he remained in the vicinity of the Control Room for approximately 3 minutes.

[11] A further meeting was held on 9 December 2014 so that Ms Singh could watch the CCTV footage and talk through the events. At the conclusion of that meeting, Ms Roden and Mr Di Santo remained concerned that Ms Singh had been inappropriately involved in the incident. It was noted that Ms Singh had been in the Control Room the whole time the bag was there and that it was unlikely that anyone else could have accessed the mobile phones to remove the sim cards and drop the phone on the floor near her desk without her noticing.

[12] Ms Roden gave evidence that the PSOs had confirmed that they had noticed the two mobiles phones in the bag when it was handed to Ms Singh. She did not believe that the mobile phones could have just fallen out because if this was the case both would have been found in the Control Room.

[13] Ms Roden and Mr Di Santo expressed further concern that the sim cards could not have just fallen out of the mobile phones and so they must have been taken out deliberately by someone. They did not believe that the PSOs would have done so and that meant that either Ms Sonnet, the Station Master, the cleaner or Ms Singh must have done so. From their assessment of what was said at the interviews and from the CCTV footage, it appears that the Station Master did not have any time with the bag in order to remove the sim cards and Ms Sonnet, even though she may have spent some time alone with the bag, could not have caused the mobile phone to be in the Control Room as she did not go there.

[14] The CCTV footage shows that when the Station Master left the offices, he did not go in the direction of the north end toilets but that the cleaner did. Ms Roden and Mr Di Santo therefore formed the view that it was possible that Ms Singh had acted in conjunction with the cleaner and this explained the subsequent locations of the mobile phones.

[15] In the view of Ms Roden and Mr Di Santo the only reasonable explanation of the events was that Ms Singh and the cleaner had colluded to interfere with and take the mobile phones. They considered whether the cleaner could have been solely responsible. They concluded that this was unlikely as Ms Singh would have noticed what he was doing when taking the mobile phones or removing the sim cards. The cleaner first came to the Control Room door very briefly at about the same time that Ms Singh handed the bag without the mobile phones to Ms Sonnet.

[16] A further meeting with Ms Singh was held on 15 December 2014. Metro did not want to finalise the investigation without giving her the opportunity to explain herself as they were mindful that if the investigation concluded that she had tried to misappropriate the mobile phones the likely outcome would be termination of employment. At this meeting, further information was sought from Ms Singh and she was asked to go through the events of the evening again. At the conclusion of the meeting, Ms Roden still believed that the only reasonable explanation for the mobile phones being found in two locations with the sim cards missing was that they were in the process of being stolen and that the persons responsible for that were Ms Singh and the cleaner.

[17] Ms Roden and Mr Di Santo then compiled a summary of the investigation and their recommendations. The findings of the investigation are as follows:

[18] Ms Roden gave evidence that she believed that termination of employment was the most appropriate outcome. She made a recommendation to that effect to senior management who accepted the recommendation. The termination took effect at a meeting held on 19 December 2014. The employer of the cleaner was advised that Metro did not want him deployed in its business in the future.

[19] At the conclusion of the proceedings held on 3 June 2015, Ms Singh gave further evidence about a past incident with her previous station master and complaints that she had raised since that time about being subject to unfair treatment by other Metro employees. She expressed a belief that these matters had influenced the decision of Metro to terminate her employment. In response to this proposition, both Ms Roden and Mr Di Santo gave evidence that they were responsible for the conduct of the investigation and made the recommendation to senior management to terminate Ms Singh’s employment on the basis of the conclusions that they had formed following their investigation. Both stated that at the time they had no knowledge of the issues involving her previous station master and they were unaware of any formal complaints that she had made about being treated unfairly by other staff members and that therefore, these matters could not have influenced the investigation or recommendation made.

Relevant Legislation

[20] The task of the Commission in this matter is to determine whether the termination is properly described as harsh, unjust or unreasonable. The Commission is required to apply the terms of s.387 of the Act in considering that question. Section 387 states that:

“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.”

[21] I will consider each of these matters in turn.

Valid Reason

[22] It is appropriate in determining whether there was a valid reason for Ms Singh’s dismissal related to her conduct to consider the precise task the Commission is performing in a matter of this type. The meaning of a valid reason is well established by the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

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

[23] The task of the Commission when determining whether alleged misconduct occurred was described by Justice Moore of the Federal Court as follows: 2

“[6] Paragraph (a) speaks of "whether there was a valid reason ... related to the
... conduct of the employee". The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s 170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

[7] The reason would be valid because the conduct occurred and justified
termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in pars (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason. I do not see how the Commission can move straight to a consideration of whether termination was justified by assuming the conduct did occur. First the Commission would have failed to resolve an issue raised by and relied on by the employee, namely whether the conduct occurred at all. Secondly the Commission would have failed to make findings by reference to which a Full Bench might have to determine an appeal where the Commission had concluded the termination was harsh, unjust or unreasonable on assumed facts and not facts found.”

[24] The relevant events are summarised above. In this case the employer conducted an investigation into the events and concluded that Ms Singh breached the policy for handling lost property and on the balance of probabilities removed the two mobile phones from the customer’s handbag. The evidence relied on by the employer was adduced before the Commission. Ms Singh contends that a different conclusion should be reached and that it cannot be proven that she removed the two mobile phones. Metro submits that the Commission should make a finding on the facts in line with the conclusion it reached in its investigation.

[25] It is clear that the customer’s mobile phones were interfered with. The customer said they were in her bag and they had Telstra sim cards. The PSOs in their interviews confirmed that the bag contained two iPhone 5s. The mobile phones were not recorded in the list of contents of the bag compiled by Ms Sonnet. They were not in the bag when it was returned to the customer. They were later found, minus their sim cards under Ms Singh’s desk in the Control Room and in the north end toilets of the station. This was a serious matter that concerned interference with a customer’s lost property and warranted a detailed investigation by Metro. Someone engaged in misconduct and it was imperative that Metro attempt to identify who that was and to take appropriate action. Mr Dias, Ms Singh, Ms Sonnet, the PSOs and the cleaner all denied involvement.

[26] Ms Roden described her reasoning process as follows:

“61. I did not believe they could have just fallen out because if they had both would have been in the Control Room.

62. I did not believe that the missing sim cards was something that could be overlooked. The sim cards could not fall out and so must have been taken out deliberately. I did not believe the PSOs would have done so and that meant that either Ms Sonnet, Mr Dias, Ms Singh or the cleaner must have done so.

63. From my assessment of what was said at interview and from the CCTV and from the information provided by Ms Hodkinson it did not seem that Mr Dias had any time with the bag to remove the sim cards and Ms Sonnet, even if she had spent time with the bag could not have caused the phone to be in the Control Room as she did not go there.

64. I did not review the CCTV of the North end toilets personally, but had Kirby Hodgkinson look at it and she confirmed that the cleaner had entered the toilets after the phone incident, but Mr Dias had not.

65. The cleaner went to the North end toilets and Ms Singh was in the Control Room. The only reasonable explanation in my mind was that Ms Singh and the Cleaner had colluded to take the phones. I could not prove that conclusively, but it was my belief on the facts available.

66. I considered whether the cleaner may have been solely responsible, but concluded that was unlikely because if he was it seemed unlikely that Ms Singh would not have noticed what he was doing when taking out the sim cards, or taking the phones.

67. One possibility was that the cleaner took the phones when he first approached the Control Room. If that were the case I could not understand why he would return one and store one in the toilet unless the one he returned was for Ms Singh.

68. Another possibility was that he removed the sim cards whilst he was in the Control Room for 13 minutes, but again I did not consider it reasonably likely that he could have done so without Ms Singh’s knowledge.

69. Each scenario I considered lead me back to Ms Singh at least being involved in the incident.

….

89. Other than the PSOs, Ms Singh was the only person out of these three who was in charge of the bag when it would have had the phones in it. The bag was never far from Ms Singh, she had time alone with the bag and also time with the cleaner. The second phone was found in the toilets at the north end of the station and no-one else had entered or exited the control room.

90. In my mind there was no other reasonable explanation than to conclude the cleaner and Ms Singh were both responsible for the removal of the sim cards and the attempted theft of the phones. I did not feel the cleaner could have removed the sim cards without Ms Singh’s knowledge and on balance I considered this serious misconduct.”

[27] Metro endeavoured to ascertain the identity of the person or persons who interfered with the customer’s mobile phones. It could not prove conclusively who that was. Its reasoning involved eliminating possibilities. The PSOs, Mr Dias and Ms Sonnet were all eliminated as possibilities for reasons that were rational and plausible. It appeared that the cleaner was the person most likely involved in the phone found in the north end male toilets of the station, which he was seen entering. He denied seeing phones and could not remember events but thought he may have spoken to Ms Sonnet. The CCTV footage shows him having a short conversation with Ms Singh shortly after the bag was handed to Ms Singh and returning to the Control Room some 12 minutes later for approximately 3 minutes.

[28] Metro’s conclusion that the cleaner was unlikely to have acted alone or without the knowledge of Ms Singh is sound and reasonable. It is also consistent with the evidence of Ms Singh and Mr Dias that the bag was not left unattended.

[29] Metro’s conclusion that neither Mr Dias nor Ms Sonnet could have been involved is also consistent with the evidence. Its conclusion that the PSOs were unlikely to be involved is also sound.

[30] Ms Singh submits that a person is innocent until proven guilty and the onus should be on management to prove beyond reasonable doubt that she is guilty. She said she had no motive, the investigative procedure was flawed, the conclusions reached were not sound and various irrelevant factors were taken into account in determining whether to terminate her employment. She contends that either the PSOs or Ms Sonnet must have been involved and that she has been blamed because of past unrelated events.

[31] On the evidence before the Commission I find that on the balance of probabilities Ms Singh was involved in the interference with the mobile phones.

[32] A further issue concerned the alleged failure of Ms Singh to follow the Metro policy regarding the handling of lost property. The policy provides that when an item of lost property is handed to a Metro employee and is likely to contain cash or valuables its contents must be examined in full view of the finder. This policy is designed to protect employees against allegations of tampering as well as to provide a safeguard of the property itself. Ms Singh took possession of the handbag. She did not follow the procedure. Had she followed the procedure the interference with the mobile phones would have been less likely to have occurred.

[33] Ms Singh contends that there was no lost property receipt book in the station offices and Ms Sonnet was responsible for following the procedure as she filled in the contents report. Further Ms Singh submits that any of her own breaches were minor and excusable because she does not deal with lost property often.

[34] I find on the evidence that Ms Singh failed to follow the Metro lost property policy.

[35] In all of the circumstances I find that Metro had a valid reason for the dismissal of Ms Singh as the reasons were sound, defensible and well-founded. In no way could they be described as fanciful, spiteful, capricious or prejudiced.

Notification of the Reason

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

Opportunity to Respond

[37] The decision to terminate Ms Singh’s employment was made after a number of interviews with Ms Singh during which she was given ample opportunities to explain her part in the matters under investigation and respond to the allegation that she was involved.

Unreasonable opportunity to allow a support person

[38] There was no such refusal.

Warnings and employer resources

[39] These factors are not relevant.

Any other matters

[40] Ms Singh submits that the punishment of dismissal is disproportionate to the misconduct. However in the course of making that submission she says there has been an inability to prove her involvement and the theft of the mobile phones is completely out of the question. She submits that any policy breaches are minor. I have found that there is a reasonable basis for concluding that Ms Singh was involved in the interference with the mobile phones and breached lost property policy. The involvement appears to be attempted theft. However the involvement cannot be proven conclusively and locating the mobile phones effectively prevented theft of the devices. The seriousness of these matters warrants summary dismissal for misconduct.

[41] I also have regard to previous instances of lost property issues concerning Ms Singh and her length of service. Although there is no reliable adverse finding arising from the previous incidents they indicate knowledge of the sensitivity of handling lost property and knowledge of lost property procedures.

Conclusions

[42] In all of the circumstances I am not persuaded that the termination of Ms Singh’s employment was harsh, unjust or unreasonable. Accordingly, the application is dismissed.

VICE PRESIDENT

Appearances:

Ms Pearljit Singh on her own behalf.

Mr Colin Broadbent, with Ms Kathy Prince, for Metro.

Hearing details:

2015.
Melbourne.

22 May, 3 June and 24 June.

Final written submissions:

Ms Pearljit Singh on 19 June 2015.

Metro on 19 June 2015.

 1 (1995) 62 IR 371.

 2   Edwards v Giudice and Others [1999] FCA 1836.

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