Rachna Garg v Eureka Operations Pty Ltd T/A Coles Express Brandon Park

[2017] FWC 4805

[2017] FWC 4805

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachna Garg
v
Eureka Operations Pty Ltd T/A Coles Express Brandon Park
(U2017/1774)

COMMISSIONER MCKINNON MELBOURNE, 14 SEPTEMBER 2017

Application for an unfair dismissal remedy.

[1] Ms Rachna Garg was employed as a part-time Customer Service Team Member by Eureka Operations Pty Ltd trading as Coles Express Brandon Park (Coles Express). On 24 January 2017, her employment was terminated for ‘dishonesty’ after she put fuel into her own car from a fuel pump that was not working correctly.

[2] Ms Garg claims she was unfairly dismissed and has applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Ms Garg’s husband, Mr Pankaj Garg represented her in the proceedings. Ms Garg and Mr Ashwani Kumar gave evidence in support of her claim.

[3] Coles Express denied that Ms Garg was unfairly dismissed. It was represented by Lander & Rogers after permission was granted for Coles Express to be represented under section 596 of the Act. Four witnesses (Anu Puri, Inderjit Dhillon, Frederick ‘Roy’ Bastianpillai and Leah Anderson) gave evidence for Coles Express

[4] Materials were filed in the Commission on 14 June 2017 and 10 July 2017 and a hearing was conducted on 2 and 3 August 2017 after attempts at conciliation failed.

When is a dismissal unfair?

[5] Under the FW Act, a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed;

(b) the dismissal was harsh, unjust or unreasonable;

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy. 1

[6] Ms Garg’s application was filed one day later than the standard 21 day time limit in section 394 of the Act. An extension of time for the filing of the application was granted on 29 May 2017 2 and, in accordance with section 396 of the Act, I find that the application was filed within the period required by section 394(2).

[7] During her employment with Coles Express, Ms Garg was covered by the Eureka Operations Fuel & Convenience Team Member Agreement 2011, an enterprise agreement approved by Commissioner Gay on 29 May 2012. There was no dispute that she had completed the minimum employment period as she wasemployed by Coles Express from 1 September 2010 until 24 January 2017. I find that Ms Garg was a person protected from unfair dismissal.

[8] As at 24 January 2017, Coles Express said it employed approximately 100,000 employees. This fact is not disputed by Ms Garg. I find that the Small Business Fair Dismissal Code could not have been complied with in this case, because Coles Express was not a small business employer immediately before the dismissal.

[9] No issue of redundancy arose in the proceeding and I find that the dismissal was not a case of genuine redundancy.

Matters agreed or in dispute

[10] The following facts were either agreed or not in dispute:

1. On 16 October 2016, there was a problem with the fuel pumps at the Brandon Park service station.

2. “Pump 17” was one of the fuel pumps affected. It could pump fuel, but the amount of fuel dispensed did not display on the console screen at the sales counter.

3. Ms Garg put fuel in her car using Pump 17 while it was not working properly.

4. Mr Ashwani Kumar, who was also working at the time, used Pump 17 immediately after Ms Garg.

5. Mr Kumar paid for his fuel toward the end of his shift on 16 October 2016.

6. Ms Garg paid for her fuel on the morning of 17 October 2016 before the start of her shift.

7. On 25 October 2016, there was a meeting between Ms Garg and two Regional Area Managers of Coles Express, Mr Bastianpillai and Mr Tony Eatwell, to discuss the incident on 16 October 2016.

8. Ms Garg was given a first and final warning at the end of the meeting on 25 October 2016.

9. Mr Kumar’s employment was terminated and he filed an unfair dismissal application.

10. At some point between October 2016 and 24 January 2017, Ms Garg and Ms Anu Puri gave witness statements in connection with Mr Kumar’s unfair dismissal application.

11. On 24 January 2017, Ms Garg met with Ms Leah Anderson, Legal Counsel for Coles Express and Mr Inderjit Dhillon, Site Manager at Brandon Park. At the end of the meeting, her employment was terminated.

[11] The key facts at issue in the proceeding relate to the events of 16 October 2016 and in particular, whether Ms Garg acted dishonestly:

1. on 25 October 2016, by claiming she put fuel in her car just to test Pump 17;  3 and

2. on 24 January 2017, in denying that she encouraged Ms Puri to take fuel on 16 October 2016. 4

The evidence

[12] On 16 October 2016, Ms Garg gave evidence that she filled her car from Pump 17 to make sure customers were being charged correctly. 5 She then said that she told Ms Puri what had happened, including about her filling up with fuel.6

[13] Ms Garg gave evidence that her decision to test the pump by putting fuel in her car was based on her observation of similar conduct by her Manager, Mr Dhillon and Assistant Manager, Viswanathan Venkitaraman (“Vish”) a few weeks before. 7

[14] Mr Kumar was also employed as a Customer Service Team Member for Coles Express Brandon Park. He gave evidence about his involvement in the events of 16 October 2016. According to Mr Kumar, he and Ms Garg were trying to help the customers, because there was a “long queue” at the Brandon Park store. 8 The CCTV footage did not corroborate the existence of a long queue at the relevant time, although it is apparent from the footage that Ms Garg was busy during her shift.

[15] Like Ms Garg, Ms Puri was a Customer Service Representative at Brandon Park. She said she arrived for work at 4.00pm on 16 October 2016, and that immediately, Ms Garg said to her:

“There is a problem with the pumps, they are not recording sales. You can fill your car with fuel without paying.” 9

[16] She said Ms Garg repeated her suggestion that she take fuel “twice or three times”. 10 She described the comments as being in words to the effect:

“I filled up closer to home in Cranbourne, so I do not need fuel, but if you need fuel you can take it.” 11

and

“If you want to fill fuel you can, no one knows about it because the pumps are not working.” 12

[17] She said she felt pressured by Ms Garg and that these comments made her feel frustrated and annoyed. After saying ‘no’ more than once, she said she finally responded by telling Ms Garg:

“No. First it is morally wrong. Second, I do not want to lose my job.” 13

[18] CCTV footage shows Ms Garg and Ms Puri engaged in conversation for about 15 minutes after which Ms Garg left the premises. Ms Puri said she then noticed Mr Kumar “just sitting there staring at the security camera footage”.

[19] Ms Puri said she became suspicious after Ms Garg called her a number of times during the shift to ask if the pumps had been fixed. 14 This evidence appears to be corroborated by handwritten notes on Annexure IS-2 that “Anu says to Indi - Rachna keeps calling me.”15

[20] Ms Puri said she decided to check the security camera footage for the day and saw both Mr Kumar and Ms Garg fill their cars with fuel without paying for it. 16 She said she was scared because she thought they had both done the wrong thing, and she did not want either of them to lose their job.17

[21] Ms Puri then said she called Vish because she thought she should report what she had seen and that she told him what happened during her shift and what she had seen on the security footage. 18

[22] Finally, Ms Puri said she spoke to Ms Garg on the phone later that night to prompt Ms Garg into paying for the fuel she had taken. 19 Ms Garg denied receiving the call.20

Events leading up to the meeting on 25 October 2016

[23] Mr Dhillon is the Site Manager at Coles Express Brandon Park. He gave evidence that he received a call on 17 October 2016 from Vish, who told him that Ms Puri had checked the security surveillance footage and had seen Mr Kumar and Ms Garg filling up from the pumps which had been affected by a problem the day before. 21 He reviewed the security footage and contacted his Area Manager, Mr Bastianpillai. At the direction of Mr Bastianpillai, he then contacted Human Resources and made a copy of the CCTV footage. He printed out the Manual Fuel Sales reports for 16 and 17 October 2016 and found a receipt for the fuel transaction processed by Mr Kumar on 16 October 2016. He did not speak to Mr Kumar or Ms Garg about the incident.22

[24] Mr Bastianpillai gave evidence that after he received the call from Mr Dhillon, he investigated the matter and it looked like Ms Garg had taken the opportunity to take fuel without paying. He said that Ms Puri had spoken to Vish about the incident, and that Vish had passed the information on to him. This included information that Ms Puri had asked why the site had not been shut down, and had become suspicious “about the answers given” causing her to review the day’s security surveillance footage. 23

[25] On either 17 or 18 October 2016, Mr Bastianpillai said he went to Brandon Park to watch the CCTV footage with Mr Dhillon. He also watched CCTV footage of the morning of 17 October 2016, where Ms Garg appeared to complete a manual transaction at 6.51am. 24

[26] Mr Bastianpillai said that after viewing the footage, he reached the conclusion that Ms Garg had taken fuel in breach of the Coles Express “Transaction Policy”. He asked Mr Dhillon to contact HR and ask them to prepare a discussion record for a meeting with Ms Garg. He received a draft discussion record from HR on 21 October 2016 and asked Mr Dhillon to arrange a meeting with Ms Garg and tell her she could bring a support person. 25

[27] On 24 October 2016, Mr Dhillon said he told Ms Garg there would be a meeting the next day with Mr Bastianpillai about whether she had taken fuel on 16 October 2016 and that she should bring a support person. 26

The meeting on 25 October 2016

[28] On 25 October 2016, Ms Garg was asked to attend a meeting with Mr Bastianpillai and Mr Eatwell. According to Ms Garg, the meeting came “out of blue moon”, the managers “started putting wild allegation on me”, and “I done nothing wrong on that day. Period.”  27

[29] Mr Bastianpillai agreed the meeting took place and said when asked if she wanted a support person, Ms Garg said she did not need one. 28

[30] Mr Bastianpillai said he asked Ms Garg about what happened on 16 October 2016. She explained that she was in a ‘panicked state’ because the pumps at the site were not working and she decided to check Pump 17 using her own car. She said she wanted to test the flow of the pump so she knew what a customer should be paying, because customers were coming into the store to pay but there was nothing showing up on the register and customers were saying they could not remember how much fuel they pumped. 29

[31] Mr Bastianpillai asked if any other Team Member had “filled with fuel”. Ms Garg initially said she was unsure. Mr Bastianpillai mentioned the CCTV footage and asked the question again. Ms Garg replied that Mr Kumar did fill up. 30

[32] Ms Garg was asked about the manual transaction processed on the morning of 17 October 2016. She said it was a mistake that she had not paid, that she meant to pay and she came back and paid for 29 or 30 litres which “was what she normally pays to fill her car.” 31

[33] Mr Bastianpillai provided his notes of the meeting, which corroborates the exchange about whether Mr Kumar took fuel. 32 The notes also record a number of statements attributed to Ms Garg, including:

“It was busy – I seriously forgot to pay.”

“I went home and I forgot to pay.”

“In morning I told my husband and went to pay at my shift.”

“I had to go home and realised and thought I’d pay tomorrow.”

“I think it was 28.1 litres, and said I’d pay 29 litres.”

“I did not tell them that I had failed paid.”

[34] Mr Bastianpillai said based on the interview with Ms Garg, he felt she had given a plausible explanation for her actions, which while in breach of company policy, did not justify dismissal. As a result, he issued Ms Garg with a first and final written warning. 33

The meeting on 24 January 2017

[35] On 24 January 2017, Ms Garg said:

“Miss Leah [Anderson] along with [Mr] Dhillon called me in head office. I went there with my husband and she told me indirectly what you want? She said “The outcome of this meeting depends upon me how can I cooperate with them.” 34

[36] She said she took this comment from Ms Anderson as a suggestion that she not become a witness for Mr Kumar in his unfair dismissal claim. In reply, she told Ms Anderson “I won’t say anything wrong except the truth.” 35

[37] Five minutes later, Ms Garg said she was told verbally that her employment was terminated.  36

[38] Ms Anderson also gave evidence that the meeting on 24 January 2017. 37 She said the meeting went for about two hours during which she sought a response from Ms Garg on two matters:

That when she put fuel in her car on 16 October 2016 her intention was to take advantage of the fuel pumps not working properly; 38 and

a) That she encouraged Ms Puri to steal by taking petrol without paying for it.

[39] Ms Anderson said it was difficult to get a response from Ms Garg as her husband kept interrupting her and preventing her from answering. When Ms Garg did answer, she did not directly address the allegations. She instead said she was being unfairly targeted because of her religion and that there was a conspiracy against her. According to Ms Anderson, she also said that “other people stole all the time and that nothing happened to them.” 39

[40] Ms Anderson said Ms Garg and her husband reviewed the CCTV footage during the meeting. 40 After more than an hour, there was a short break. Ms Anderson spoke to the Head of HR for Coles Express, and recommended that Ms Garg’s employment be terminated. She described her reasons as follows:

a) The CCTV strongly suggested that Ms Garg had sought to take advantage of the problem with the fuel pump, even though she paid an approximate amount for fuel the next day;

b) Ms Garg did not provide any satisfactory explanation of her actions or even deny that she had encouraged Ms Puri to steal petrol. Ms Anderson had no reason to doubt Ms Puri’s statement, as she was friendly with Ms Garg;

c) In her view, each of the allegations put to Ms Garg on 24 January 2017 were made out, and as Ms Garg often worked alone, Coles Express could no longer trust her. 41

Was the dismissal harsh, unjust or unreasonable?

[41] The phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 42 as follows:

“....It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[42] Whether a particular dismissal was harsh, unjust or unreasonable will depend on a range of factors, including those set out in section 387 of the FW Act:

(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 for the dismissal related to the Ms Garg’s capacity or conduct?

[43] There were essentially two courses of conduct that formed the basis for the decision to dismiss Ms Garg. The first was the taking of fuel without paying and being “dishonest” when she said otherwise on 25 October 2016 and 24 January 2017. The second was the allegation that she encouraged Ms Puri to steal fuel on 16 October 2016.

Taking fuel without paying

[44] The evidence establishes that Ms Garg put fuel in her car on 16 October 2016, and paid for it the following morning before the start of her next shift. As to why she did not pay for the fuel until the following morning, Ms Garg said she told Ms Puri about the events of the day, including that:

“I told her that I have to pick my son from family day care, as I am already late and I will pay my fuel early in the morning.”

[45] If true, this statement indicates that Ms Garg was conscious of the need to pay for her fuel at the time she left work on 16 October 2016, but because of time pressures, decided to pay the following day instead. The notes of Mr Bastianpillai’s conversation with Ms Garg on 25 October 2016 43 tell a different story, and in my view are more reliable as evidence than the recollection of Ms Garg some months later.

[46] The CCTV footage shows Ms Garg moving quickly between the console and the fuel pumps from the time the problem with the pumps appears to have first become apparent until around 4.00pm, when Ms Puri arrived. The difficulty with Ms Garg’s evidence is that she lingered at work for 21 minutes after her shift had ended to talk with Ms Puri and Mr Kumar. 44 This does not seem to be consistent with being in such a hurry to leave work that payment for fuel would have to wait.

[47] I also note that Ms Puri’s evidence made no mention of Ms Garg telling her that she had taken fuel, let alone that she would pay for her fuel the next day. If Ms Puri had known before Ms Garg left that she had taken fuel but not paid for it, she may have been less curious to view the video footage to find out what had happened the shift before. 45

[48] Ms Garg was a passionate witness, but in my observation her emotional investment in the claim may have clouded her evidence. Although I found her a generally credible witness, there are many inconsistencies in her version of events. Some can perhaps be explained by lapse of memory over time, but not all.

[49] My observation of Mr Kumar was that he clearly had an agenda in giving evidence in the proceedings, related to his own dismissal. I did not find his evidence convincing.

[50] Mr Dhillon gave evidence about the process when a person fills their car with petrol and cannot pay, noting that there is an escalation process, to call either the Manager or relevant Regional Area Manager. 46 There was no evidence that Ms Garg made any contact with a Manager before the morning of 17 October 2016 to advise that she had not paid for fuel.

[51] Submissions filed for Ms Garg on 26 August 2017 stated “how she can pay when system is not working at that time”. It is a fair question, except that it does not sit well with the remainder of the evidence from Ms Garg that she made no attempt to pay for her fuel on 16 October 2016, because “she forgot”.

[52] On balance, I find that Ms Garg was dishonest when she told Mr Bastianpillai on 25 October 2016 that she had simply forgotten to pay for the fuel on 16 October 2016. There are simply too many inconsistencies in her evidence. I accept that Ms Garg was busy during her shift, and that she was doing her best to assist the customers. I also accept the possibility that at the time she took the fuel, Ms Garg thought she could because she was doing what her supervisor Mr Dhillon had done some weeks before. Whether or not this was the case, the evidence establishes that Ms Garg took fuel and did not pay for it. In my view, it was only later that evening that she realised Mr Kumar had paid for his fuel and that she was isolated. She then urgently sought to fix the problem the next morning before the start of her shift.

[53] To the extent that Ms Garg held to her story in the interview with Ms Anderson on 24 January 2017, it follows that I also find her not to have been truthful at that time about the taking of fuel.

Encouraging Ms Puri to take fuel

[54] The allegation put to Ms Garg was that she encouraged Ms Puri to take fuel on 16 October 2016 before she left work for the day. There is no evidence that this incident was reported to Coles Express until sometime after December 2016 when Ms Puri was asked to give a witness statement in relation to Mr Kumar’s unfair dismissal application.

[55] Ms Anderson gave evidence that she accepted what Ms Puri had said at face value, because Ms Puri and Ms Garg were friends, and because “she had no reason to lie”. She did not seek to corroborate or test Ms Puri’s statement, even after Ms Garg had denied the allegations. Ms Anderson came across as an honest witness, and I accept her evidence. However, I am not convinced that she was right about Ms Puri.

[56] While there was evidence of regular communication between them, I found Ms Puri an unconvincing witness. Early in her cross-examination, she was asked about a transaction in 2014, and given a copy of the receipt. The inference Ms Garg sought to draw was that Ms Puri was not a credible witness because she had breached company policy (at best) or stolen from Coles Express (at worst). Nothing turns on the 2014 transaction itself, and I have not given any weight to the content of the receipt. However, the evidence is relevant to the relationship between Ms Garg and Ms Puri. Ms Puri was able to recall the precise details of the incident, related to events some years before. I observed a degree of hostility in her answers on the issue, directed at Ms Garg. It was telling that she said Ms Garg had taken the receipt as evidence against her, explaining that by printing out the receipt and keeping it, she felt Ms Garg was “standing on my back”, and “keeping an eye on me”. 47

[57] Ms Puri’s evidence was that Ms Garg repeated “go and fill fuel” during the “whole night shift”, when the two did not work together except for a brief 20 minute overlap and shift changeover. 48 Ms Puri also said that when encouraging her to fill up with fuel, Ms Garg said she could not fill her own car as she had already filled it from “Cranbourne”. Ms Garg’s evidence was that when she paid for the fuel, she based it on the amount she would ordinarily pay to fill her car – or approximately 29 litres.49 The evidence is incongruous, and Ms Puri’s version of events would suggest that Ms Garg was trying to get her in trouble. I am not satisfied on the evidence that this was the case.

[58] I also note the striking similarity in evidence from Ms Puri and Mr Dhillon about whether Ms Garg was the “best up seller team member” at Brandon Park. Again, Ms Garg’s performance in upselling was not critical to the events in question, but the responses to questions about it were telling. Rather than simply expressing a view about Ms Garg’s performance in upselling, in each case, they emphasised the efforts of the whole team. Ms Puri said “everyone is doing a good job for the upselling and we are doing for the store, it’s the teamwork”, and “If something – someone has a good quality, like, if she is doing that everyone is doing their effort to do that.” 50 Mr Dhillon said that “it’s not any best team member” and that “we all here for the job”. Only when pressed was he prepared to concede that Ms Garg “was doing good in upselling”.51 The similarity makes no sense unless the two had discussed their evidence about whether Ms Garg was better at upselling than they were in preparation for the hearing. Their evidence on this point did them no credit.

[59] Mr Dhillon’s evidence was short and at times combative. I accept his evidence about his experience at Coles Express and his role as Site Manager. In my view, the evidence of Ms Garg about testing the pumps because she had seen Mr Dhillon do the same thing a few weeks before 52 is also credible, and it is unfortunate that Mr Dhillon was not asked about the incident in the hearing. My observations of his demeanour in the hearing as well as his evidence on the issue of ‘upselling’ lead me to accept the possibility that his dealings with Ms Garg were not always entirely impartial, but on the state of the evidence before me I can take it no further than that.

[60] I accept Mr Bastianpillai’s evidence without reservation. In my observation, he was an engaging and truthful witness.

[61] There were two notable absences in the evidence – from “Vish”, the Assistant Store Manager who received the report from Ms Puri about the events of 16 October 2016 53, and Julie Gleeson, who was possibly the only person who spoke to Ms Puri about the allegation that Ms Garg encouraged her to take fuel.54 In the circumstances, I am entitled to draw an adverse inference that their evidence would not have assisted Coles Express in relation to the allegations made by Ms Puri55, and I do so.

[62] Taking all of the evidence into account, I am not satisfied that Ms Garg encouraged Ms Puri to take fuel on 16 October 2016.

[63] It follows, and I find, that there was a valid reason for the dismissal related to Ms Garg’s conduct on:

a) 16 October 2016, when she took the fuel without paying;

b) 25 October 2016, when she said she had forgotten to pay for fuel; and

c) 24 January 2017, when she again denied that she had intended to take the fuel without paying.

Was Ms Garg notified of the reason for dismissal?

[64] On 24 January 2017, Ms Garg was notified in person that her employment was terminated because of her dishonesty on 25 October 2016 and 24 January 2017. A letter confirming the termination was sent to Ms Garg initially to the wrong address. A revised letter was sent on 6 February 2017. 56

[65] I am satisfied that Ms Garg was notified of the reasons for dismissal that I have found to be valid reasons relating to Ms Garg’s capacity or conduct above.

Was Ms Garg given an opportunity to respond?

[66] The evidence establishes that the allegations about her conduct on 16 October 2016 were put to Ms Garg both on 25 October 2016 and on 24 January 2017. I am satisfied that Ms Garg was given an opportunity to respond to the reasons for dismissal.

Was Ms Garg allowed to have a support person to assist her with discussions relating to her dismissal?

[67] The evidence is unsatisfactory on whether Ms Garg was offered a support person for the initial meeting on 16 October 2016. However, the evidence establishes that Ms Garg was offered the opportunity to have a support person present with her in the meeting on 24 January 2017 and that Ms Garg’s husband attended the meeting in that capacity. The evidence also establishes that Mr Garg was actively involved in assisting her in the discussions relating to her dismissal.

[68] I am satisfied that there was no unreasonable refusal to allow Ms Garg to have a support person assist her in discussions about her dismissal.

Was Ms Garg warned about unsatisfactory performance?

[69] Ms Garg’s dismissal was not related to her unsatisfactory performance, but rather to her conduct on particular dates from 16 October 2016 until 24 January 2017. This criteria is a neutral factor in my consideration.

The size of the employer’s business and access to dedicated human resources management specialists or expertise

[70] At the time of the dismissal, the Respondent said it employed approximately 100,000 employees, including Ms Anderson in the role of Legal Counsel and what appears to be a significant Human Resources capability led by a “Head of HR”.

[71] The size of the enterprise clearly influenced the procedures followed by the Respondent in effecting the dismissal. There was evidence that allegations were passed up the chain of command to the relevant decision makers, and arrangements made within the organisation for meetings where relevant allegations were put, and responses recorded.

[72] Coles Express is a business of substantial size and has access to dedicated human resource management expertise internally as well as the capacity to source additional legal or other third party expertise as it sees fit. It did so in this case, through access to Ms Anderson in particular, who also had access to external legal advisers.

[73] I am satisfied that both the size of the Respondent’s enterprise and its access to human resources expertise assisted in affording Ms Garg procedural fairness in relation to the dismissal.

Other relevant matters

[74] Ms Garg alleged that she was treated differently because she was not a member of the Sikh religion. There was no evidence that religion or culture influenced the decision of either Mr Bastianpillai or Ms Anderson to discipline or dismiss Ms Garg, and Ms Anderson expressly denied that it had. I am not satisfied that the decision making process was tainted by the religion of Ms Garg or of any other person.

[75] It is relevant that Ms Garg was paid four week’s wages in lieu of notice, despite one of the main allegations against Ms Garg amounting to theft, or at least an intention to steal. Ms Anderson gave evidence that theft is a serious matter for Coles Express and that it can have regrettable consequences including that employees sometimes lose their jobs. Ms Garg herself explained that “others had stolen and had not been dismissed”. Unfortunately, that is no answer to the allegations put against her.

Conclusion

[76] Having considered each of the matters specified in section 387, I am satisfied that Ms Garg was dismissed and that her dismissal was not harsh, unjust or unreasonable. Accordingly, I find Ms Garg was not unfairly dismissed.

[77] The application is dismissed.

COMMISSIONER

Appearances:

P Garg for the Applicant

W Spargo for the Respondent

Hearing details:

2017

Melbourne

August 2 to 3.

 1 FW Act, s.385

 2   [2017] FWC 2934

 3   Exhibit R5, paragraph 18

 4   Exhibit R5, paragraph 26

 5   Exhibit A1

 6   Exhibit A1

 7   Transcript PN83

 8   Transcript PN995

 9   Exhibit R2, paragraph 14

 10   Exhibit R2 at paragraph 19

 11   Exhibit R2 at paragraph 19

 12   Exhibit R2 at paragraph 19

 13   Exhibit R2 at paragraph 19

 14   Exhibit R2 at paragraphs 21-22

 15   Exhibit R3, Annexure IS-2

 16   Exhibit R2 at paragraph 23

 17   Exhibit R2 at paragraph 24

 18   Exhibit R2 at paragraph 25

 19   Exhibit R2 at paragraph 26

 20   PN396 -398

 21   Exhibit R3 at paragraph 10

 22   Exhibit R3 at paragrahs11-21

 23   Exhibit R4 at paragraphs 32

 24   Exhibit R4 at paragraphs 33-37

 25   Exhibit R4 at paragraphs 40-43

 26   Exhibit R3 at paragraphs 22-23

 27   Exhibit A1, page 5

 28   Exhibit R4 at paragraph 44

 29   Exhibit R4 at paragraph 46

 30   Exhibit R4 at paragraph 48

 31   Exhibit R4 at paragraph 49

 32   Exhibit R4, Annexure FRB-8

 33   Exhibit R4 at paragraphs 51-2

 34   Exhibit A1

 35   Exhibit A1

 36   Exhibit A1

 37   Exhibit R5, paragraphs 13-27

 38   Exhibit R5 at paragraph 18

 39   Exhibit R5 at paragraphs 19-21

 40   Exhibit R5 at paragraph 24

 41   Exhibit R5 at paragraph 26

 42 [1995] HCA 24; (1995) 185 CLR 410 at 465

 43   Exhibit R4, Annexure FRB-8.

 44   CCTV footage, 16 October 2016

 45   Exhibit R2 at paragraph 23.

 46   PN1716

 47   PN1370

 48   PN1407

 49   PN245-247

 50   PN1241

 51   PN1667-1672

 52   PN192-203

 53   PN1229

 54   PN2058

 55   Jones v Dunkel (1959) 101 CLR 298

 56   Exhibit R5

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