Rebecca Scott v Goona Warra Vineyard Pty Ltd T/A Goona Warra Vineyard Sunbury

[2015] FWC 755

[2015] FWC 755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Scott
v
Goona Warra Vineyard Pty Ltd T/A Goona Warra Vineyard Sunbury
(U2014/11375)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Ms Rebecca Scott claims that the termination of her employment on 23 July 2014 by Goona Warra Vineyard Pty Ltd was unfair.

[2] Ms Scott was employed by Goona Warra as the Sales & Marketing Manager and was employed in that position for just less than two years. Prior to the termination of her employment Ms Scott had also assisted with the hands on running of functions and with kitchen duties. 1

[3] I granted permission to appear to Mr Gary Dirks who represented Ms Scott and Mr Rohan Millar of Counsel who represented Goona Warra.

Jurisdiction of the Fair Work Commission

[4] There is no dispute that Ms Scott is a person who was protected from unfair dismissal. The Fair Work Commission has the jurisdiction to determine the application.

Issues in dispute

1. Was Goona Warra a small business?

2. Did Goona Warra comply with the Small Business Fair Dismissal Code?

3. If the answer to both question 1 or 2 is no, was the dismissal harsh, unjust or unreasonable?

Was Goona Warra a small business?

[5] Ms Barnier, a director of Goona Warra, gave evidence that at the time of the dismissal Goona Warra employed 12 full time and regular and systematic casual employees. She gave evidence of the status of all the employees engaged by Goona Warra. 2

[6] Ms Barnier said that there were other casual employees engaged from time to time on an occasional basis for fruit picking and wine making. It was her evidence that the restaurant only opened on a needs basis for functions or special occasions such as Mother’s Day and Father’s day. She said the catering staff were not engaged on a regular and systematic basis. She gave evidence that Goona Warra engaged a bookkeeper on a contract basis. 3

[7] Ms Scott submitted that there were 20 employees at the time of her dismissal. 4

[8] A spreadsheet setting out the shifts worked by employees in the year before Ms Scott’s termination was tendered. 5

[9] I accept Ms Scott’s submissions that the onus is on Goona Warra to support its claim, that it is a small business. While it was submitted that there were additional catering staff, wine making and fruit picking staff, 6 there was no evidence that there were additional casual employees employed on a regular and systematic basis that were not included on Ms Scott’s list or Ms Barnier’s list who were employed at the time of Ms Scott’s dismissal. It was not put to Ms Barnier that any of the casual fruit picking staff, for example, were employed on a regular and systematic basis.

[10] I note that Goona Warra had been found to be a small business by Commissioner Johns in May 2014. 7

[11] Ms Scott listed Mr Barnier as an employee. Ms Barnier 8 and Mr Barnier gave evidence that while he was a director of the company, he was not an employee.9 There was no evidence to the contrary.

[12] Ms Scott claimed that the wine maker was a full time employee but accepted that she had no direct knowledge of the contractual arrangements between the wine maker and Goona Warra. 10 Ms Barnier gave evidence that they have a full time vineyard manager but they only have a consultant wine maker.11 I therefore concluded that the consultant wine maker is not an employee.

[13] It was not disputed by Goona Warra that employees numbered 2, 3, 4, 5, 7, 8, 9, 10, 12 13, and 14 were either full time or casual employees who had a reasonable expectation of continuing employment on a regular and systematic basis.

[14] Ms Scott claimed that employee number 11 was a regular and systematic casual. Ms Scott gave evidence that she worked regularly but at times she couldn’t work. She worked about once a month but she was someone that Ms Scott would regularly call. 12 Ms Barnier’s evidence showed that employee number 11 had worked four shifts in 2014.

[15] Ms Scott claimed that employee number 16 was a regular and systematic casual. Ms Scott accepted that she was replaced by employee number 12 but she was still on call. 13 Ms Barnier’s evidence showed that employee number 12 had not worked since 19 January 2014.

[16] Ms Scott claimed that employee number 17 was a regular and systematic casual. Ms Scott accepted that employee number 17 had taken up full time employment but she still came into work occasionally. 14 Ms Barnier’s evidence shows that employee number 17 worked nine shifts in 2014.

[17] Ms Scott claimed that employee number 18 was a regular and systematic casual. Ms Scott accepted that she did not work regularly but said there was a plan to have her work front of house. 15 Ms Barnier’s evidence shows that employee number 18 worked six shifts in 2014.

[18] Ms Scott accepted that employees 19-23 worked infrequent shifts but were offered suitable work when it was available and generally made themselves available. Ms Barnier’s evidence showed that employee 19 had worked one shift in 2014. Employee 20 had worked six shifts in 2014 but only two in the since March 2014. Employee 21, 22 and 23 had no shifts.

[19] I accept that casual employees can be included in the count of employees if they do not have a regular pattern of work. However simply being in a pool of casual employees who may or may not be called in is not sufficient. Commissioner Roe discussed in Ponce v DJT Staff Management Services Pty Ltd  16 theses concepts. I agree with him when he said:

“I conclude from this that the set of facts in each case must be examined and that, if the number of hours worked is small and the gaps between days and times worked is long and irregular this means that there needs to be other evidence that the employment of a casual is regular and systematic. Conversely, if there is a clear pattern or a roster for the hours and days worked then this would be strong evidence of regular and systematic employment.” 17

[20] It is clear that the number of employees engaged varied depending on the number and size of the functions as well as the availability of other staff. The roster patterns show that some of the employees, who were not in dispute, worked on the majority of occasions that hospitality work was available. The fact that there were weeks when there were no functions did not prevent them from being included in the count of employees. The disputed employees worked more spasmodically. There is no evidence on which I could find that these employees had a reasonable expectation of continuing employment on a regular and systematic basis.

[21] I find, therefore, that Goona Warra was a small business at the time Ms Scott’s employment was terminated.

Did Goona Warra comply with the Small Business Fair Dismissal Code?

[22] The Act at section 385 provides that a person has unfairly dismissed if the Fair Work Commission is satisfied that:

....

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

[23] The Small Business Fair Dismissal Code provides as follows:

“The Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[24] Goona Warra summarily dismissed Ms Scott. Goona Warra submitted that Ms Scott committed two acts which were “sufficiently serious as to justify immediate dismissal.” 18

[25] Goona Warra alleged that Ms Scott failed to follow a direction on12 July 2014 to send home an excess employee working in the kitchen and claimed excessive commission for a function held in July 2014.

The 12 July 2014 incident

[26] It was not disputed that on 12 July 2014, Mr Barnier directed Ms Scott to tell an employee to finish up and go home. It is also not disputed that Ms Scott did not follow this direction.

[27] It was Ms Scott’s evidence that on 12 July 2014, for a small wedding, there were three staff engaged, a relieving chef, a cook and a kitchen hand. Ms Scott said the relieving chef was going to leave early and the cook and the kitchen hand were needed to finish up. Ms Scott was co-orindating front of house. Ms Scott said that shortly after the event commenced “Mr Barnier cornered [her] and started screaming at [her] that there were too many staff in the kitchen” and told her to send the “dishpig home.” 19

[28] Ms Scott said that because “Mr Barnier’s manner was very aggressive and abusive - and for the second time was directed at [her],” she had an anxiety attack. 20

[29] Mr Barnier then sent the kitchen hand home. 21

[30] Mr Barnier gave evidence that Ms Scott knew that, due to the slim margins in hospitality, close attention needed to be paid to staffing levels. Mr Barnier said that given the size of the function two kitchen staff would have been adequate. It was his evidence that Ms Scott, when asked to send the additional staff member home, said no. When asked why she had not followed the directives about staffing numbers he said Ms Scott said she had been doing this for seven years and she knew what to do. He responded that he had been running the venue for 26 years and needed to do so at a profit. When asked a second time to send the kitchen hand home, Mr Barnier said that Ms Scott said “No I’m not going to - do it yourself.” 22

[31] In examination in chief, Ms Scott did accept that her only response to Mr Barnier was to whisper “no”. 23 She said she said no because there was a reason why there was an extra member of staff present but she was unable to explain this to Mr Barnier because of his conduct.24 Ms Scott denied making any other statements to Mr Barnier.25 She accepts that he said that he had been running the venue for 26 years and needed to make a profit.26

[32] She accepted that he may have asked her a second time to send the kitchen hand home. 27 She denied telling him to do it himself.28 In cross examination she said that she might have said “you do it.”29

[33] Ms Scott denied that there were directives about the number of staff to be employed and she was responsible for rostering staff on a needs basis. 30

[34] Ms Scott worked the next week but had time off work the following week due to her stress and anxiety and returned to work on 24 July 2014.

[35] On 24 July 2014, Ms Scott was called to meeting to discuss this incident. Ms Barnier said that Ms Scott was not contrite and offered no explanation for what had happened. She did say “it won’t happen again.” 31 Ms Scott accepts she may have said something along those lines.32

[36] Ms Scott was given a letter of warning. That letter advised that she had not followed rostering guidelines and refused to follow Mr Barnier’s direction. The letter warned her that a repetition would place her employment at risk. 33

The performance issues

[37] As a result of Ms Scott’s absence, Ms Barnier was required to pick up her work and she became concerned about the lack of organisation for an upcoming function which was to be held on 31 July 2014. It was her evidence that much of the organisation of this function was not in place and she was unable to find Ms Scott’s records of what she had done. 34 As a result she had to take over the organisation of the function. This and the incident with Mr Barnier caused Ms Barnier to decide to address with Ms Scott numerous unsatisfactory performance issues which had occurred over a sustained period of time.35

[38] At the meeting on 24 July 2014, a second letter was given to Ms Scott about her performance. In that letter a number of performance issues were raised with Ms Scott. In particular it was said that Ms Scott:

1. Did not maintain proper function records;

2. Did not update the cash flow budget reports on a weekly basis as requested;

3. Failed to charge additional fees for use of certain facilities;

4. Amended package information without approval;

5. Failed to use the new chef’s menu as instructed; and

6. Failed to record times worked in the work diary

[1] That letter advised that repetition of this conduct would put her employment at risk.

[2] Ms Scott said that she attempted to respond to these issues but that Mr Barnier would not listen to her explanations.

[3] She submitted that any failure with recording information was due to problems with the computer system. She said that on each occasion she did not charge the additional fee, Ms Barnier had approved the decision. She denied amending package information. She submitted that the computer problem prevented the package being updated and because the old brochures were still in use some clients would insist on the old menu. She further said she had never been asked to record her hours of work in her work diary.

Excessive commission

[4] Ms Barnier gave evidence that Ms Scott had over claimed her commission. Ms Scott was entitled to a 2% commission on gross sales for booked private functions once a deposit was paid.

[5] Ms Barnier said that Ms Scott had claimed a commission on 12 March 2014 for a function based on an initial quote for 120 people rather than the actual number booked which she said was initially 90 and this increased to 95. It was said that Ms Scott was overpaid commission by $107.40. 36

[6] It was not disputed that Ms Scott was responsible for putting into a spreadsheet the details of the bookings so that her commission could be paid.

[7] Ms Barnier said that there was an initial booking for 21 December 2013 and a quote was given on 17 December 2013 for 120 people at $106 per person for food and alcohol plus a wine pack upgrade at $10 per head. 37 Ms Scott entered these details of the function on the spreadsheet but there was no evidence of when she did this.

[8] The date of the function was then changed to 31 July 2014 and a tax invoice was issued by Ms Scott on 26 January 2014. That invoice was still for 120 people but now at $90 per head as it no longer included wine or the upgraded wine package. The deposit of $1,100 38 which was the same on both documents was paid on 7 March 2014. Ms Barnier said that this was when the entitlement to a commission crystallised.39 However Ms Scott made no adjustment to the spreadsheet and she was paid commission based on 120 people at $116.40

[9] Ms Scott said that Ms Barnier at the meeting on 24 July 2014 said that she had claimed commission before the deposit was paid. There was no evidence that the commission was claimed before the deposit was paid.

[10] It was Ms Scott’s evidence that the client asked for the initial quote and then asked for another quote without wine and then prior to paying the deposit advised that the client wanted the wine back in. 41 There was no evidence that Ms Scott issued a revised invoice to reflect that change.

[11] Ms Scott gave evidence that the commission was not altered once the deposit was paid whether the numbers go up or down. 42 Goona Warra accepted that this was the arrangement.

[12] The evidence called by Goona Warra about this booking was confusing. The letter given to Ms Scott about this matter on 24 July 2014 stated that the booking was for 90 people now increased to 95 people at $90 per head. In cross examination on the first day Ms Barnier stated that the 90 and 95 people was wrong. 43 Ms Barnier accepted that there were no records of the function ever having 90-95 people and that Mr Barnier had written the letter.44

[13] Mr Barnier gave evidence that Ms Barnier had contacted the client who told her that the numbers would be 90 or may be 95 but it was booked for 90. He said that Ms Barnier looked at the invoice and it was for 90 people. 45 There is no documentary evidence to support this evidence and it is not consistent with Ms Barnier’s initial evidence who accepted that the numbers were always 120.46

[14] When Ms Barnier returned to the witness box she said that she had been told by the client when she asked for an update of the numbers that they would be 90-95. 47

[15] It is clear on the material before the Commission that some of the details put to Ms Scott on 24 July 2014 were inaccurate.

[16] That the numbers may have fallen to 90-95 by July 2014 was not evidence that Ms Scott had made a claim for commission to which she was not entitled. The numbers on both the quote and the invoice were for 120 people. There was no evidence on which I could find that the numbers advised to Ms Scott was ever 90-95.

[17] To the extent that Goona Wanna relied on this change in numbers to claim that Ms Scott had been deceptive was not reasonable.

[18] The deposit was paid on 7 March 2014. Ms Scott put the information from the original quote into the spread sheet for the purpose claiming her commission and did not alter that information when the revised quote was issued. Ms Barnier gave evidence that she spoke to the client’s representative on 22 July 2014 and it was then that she was told that the client now required the wine to be included because the earlier plans had not eventuated. 48

[19] Ms Barnier said her concern was not that the numbers changed but the price changed. 49

[20] By not correcting the information in the spread sheet Goona Warra formed the view that Ms Scott was paid a greater commission than she was entitled to at that time.

[21] In the letter of 24 July 2014, it was stated that “this wilful over-claim amounts to theft and falls within the definition of serious misconduct allowing of summary dismissal.” 50

[22] Ms Scott was advised that she would not be dismissed but her commission claims in future would need to be signed off and that an audit of past claims would be conducted.

[23] Ms Barnier said that when presented with the letter Ms Scott’s response was to laugh. 51 Ms Barnier said that Ms Scott provided no explanation for her conduct. Yet in cross examination Ms Barnier said that Ms Scott told her in the meeting that the wine had come out of the package.52

[24] Ms Scott said that any error would have been a typo or an honest error. She told them that the accountant was required to check the information was accurate before paying the commission. She said she could not overstate her commission. 53

The meeting

[25] Ms Scott was first presented with a letter about the incident with Mr Barnier and then the letter outlining the performance issues. She was then given the letter about the overpaid commission.

[26] At this point Ms Scott said that she would resign and give two weeks’ notice. Mr Barnier told her that she could not resign verbally but needed to give notice in writing. She was asked to leave the meeting so that Mr and Ms Barnier could discuss Ms Scott’s response. Ms Barnier said that the decision was then taken to dismiss Ms Scott immediately because of the lack of trust arising from the over claiming of the commission and her lack of contrition. 54

Consideration

[27] It is clear that I am not required to determine if Ms Scott did in fact over claim the commission. The Code only requires that the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.

[28] As the Full Bench said in John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo: 55

“[27] Deputy President Bartel in Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe said:

“[60] At the outset it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of FWA is not to determine on the evidence whether there was a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the applicant did or did not steal the money. The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.”

[28] Senior Deputy President McCarthy in Harley v Rosecrest Asset Pty Ltd T/A Can Do International said:

“[8] For an employer to believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer to establish that the employer did in fact hold the belief that as a matter of fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal. This is to be contrasted to the provisions of s.387(a) where FWA, in determining whether there was a valid reason for the dismissal, must find whether the conduct in fact occurred.

[9] Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquires or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.”

[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

Findings

The performance issues

[29] It was clear from the evidence that Ms Scott had a high level of autonomy and that prior to these incidents she had not received any formal advice of any issues with her performance. 56 It is not necessary from me to resolve the disputed facts about these performance issues. It could not be suggested that the termination of Ms Scott’s employment for poor performance would be consistent with the Code, as there was no evidence that Ms Scott had been warned that she risked being dismissed.

The failure to follow directions

[30] I do not consider that Goona Warra had reasonable grounds for believing that Ms Scott’s conduct on 12 July 2014 was sufficiently serious to justify immediate dismissal. First, because it is clear that Goona Warra itself did not believe the conduct was sufficiently serious to justify immediate dismissal as the letter issued to Ms Scott was a warning letter. Also, I do not consider that Ms Scott did deliberately refuse to follow a lawful direction because the manner in which Mr Barnier gave the direction prevented Ms Scott from being able to respond.

[31] While I accept that Mr Barnier had a legitimate right to raise with Ms Scott his concerns about the number of staff rostered on duty, I prefer Ms Scott’s evidence about the manner in which Mr Barnier conveyed his concerns to her. It is clear from Mr Barnier’s own evidence that he referred to staff in a disrespectful way. He referred to one staff member as a “dish pig” 57 and another staff member as a moron with an IQ of zero.58 Ms Scott recounted an earlier occasion when Mr Barnier’s manner caused her to have a panic attack. Mr Barnier’s recollection of those events was incomplete in that while he could recall some specific details about this incident he did not deny yelling at Ms Scott he simply could not recall yelling at her. Mr Barnier did not respond in his witness statement to the allegations that he had behaved inappropriately towards Ms Scott on this earlier occasion and Ms Scott was not cross examined about her recollection of this incident. As a result, I accept Ms Scott’s evidence about this incident. I also prefer Ms Scott’s version about the incident on 12 July 2014. I accept her evidence that when Mr Barnier yelled at her she was not able to respond in an appropriate manner to Mr Barnier’s direction because of the effect of his conduct on her.

The commission

[32] There is no doubt that Ms Scott occupied a position of significant trust. It was her evidence that much of the day to day management of functions were left to her. In addition Ms Barnier was often away. 59

[33] Ms Scott filled in the details about the commission and the details were not checked by either Ms Barnier or the Accountant. I do not accept her submission that she is not able to over claim commission. It was her obligation to update the records so that they were accurate. Claiming commission that you are not entitled to is sufficient to warrant instant dismissal.

[34] Did Goona Warra have reasonable grounds for believing that Ms Scott over claimed commission that she knew she was not entitled to? Because of the way the meeting was conducted on 24 July 2014 there was no real discussion about these allegations. The question then is whether on the basis of the information that Ms Barnier had at the time, namely a quote for 120 people at $106 per head with an upgraded wine package at $10 per head and a later invoice for 120 people at $90 per head with no wine included with a commission claimed on the initial quote, Ms Barnier had a reasonable basis for believing that Ms Scott had claimed commission to which she knew was not entitled to.

[35] On balance, I do consider that Goona Warra had reasonable grounds for believing that Ms Scott claimed the excess commission knowing she was not entitled to the commission.

[36] In Ms Scott’s favour was her denial of the allegation. She said that she had a further conversation with the client after the second invoice was issued and in that conversation the client agreed to include wine and the earlier higher price was agreed.

[37] Against Ms Scott’s version is that there was no record of that conversation with the client about the further change to the proposal. Further there is no evidence that she issued a new invoice to that effect. While it was accepted that numbers and prices could change, her entitlement to commission was based on the booked sales confirmed by a deposit. The only invoice on which the deposit was paid was the invoice of 26 January 2014. Ms Scott claimed the commission on the earlier quote.

[38] At the time of discovering the overpayment Goona Warra itself did not believe the conduct was sufficient serious to justify immediate dismissal as the letter issued to Ms Scott was a warning letter.

[39] However Goona Warra formed the view after the discussion with Ms Scott that the conduct was sufficiently serious to justify immediate dismissal as she did not provide a satisfactory explanation for the discrepancy.

[40] It was submitted that the investigation was not adequate. In part, I agree.

[41] Ms Scott was not provided with an adequate opportunity to explain the discrepancy at the meeting. The issue of the commission was raised as the third in a series of complaints. There is no evidence that Ms Scott was shown the invoices during the meeting. This was raised with her after she had said she was going to resign her employment.

[42] At the time Ms Barnier made the decision to terminate Ms Scott’s employment she had the quote, the invoice and the records of the commission payment. She had limited records of the event as Ms Scott had failed to keep proper records of the changes. Ms Barnier had a conversation with a representative of the client on 22 July 2014 where she was advised that it had decided that Goona Warra would now be asked to supply wines at the extra $10 per head, as had been quoted verbally by Ms Scott. 60 Ms Barnier was not cross examined on this evidence.

[43] Had I been required to determine if in fact this was the first time the client had changed its mind about the inclusion of the wine I would not have accepted this hearsay evidence given its critical importance in determining if the client did tell Ms Scott before she claimed the commission to revert to the original quote. However in circumstances where I am required to assess the reasonableness of Goona Warra’s belief, Ms Barnier, faced with this information from the client, would not have reasonably been expected to make further inquiries. She was entitled to assume what was being said to her was the truth. Particularly given Ms Scott had not kept any record to show that wine was a gains to be included.

[44] While there were still some unexplained discrepancies in the price eventually quoted, this evidence supports a finding that Goona Warra’s belief that before this date there had not been an agreement for the client to be charged for wine by Goona Warra was reasonable. On the basis of that information and the paper work, I consider that the investigation conducted by Goona Warra was sufficient in all the circumstances. It was reasonable for them to not accept Ms Scott’s explanation.

[45] I find, therefore, that its belief that Ms Scott had deliberately over claimed commission was reasonable.

[46] I have therefore concluded that the dismissal of Ms Scott was consistent with the Small Business Fair Dismissal Code. As such Ms Scott’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr G Dircks representing Ms Rebecca Scott

Mr R Millar representing Goona Warra Vineyard Pty Ltd

Hearing details:

2014.

Melbourne:

17 & 18 November.

 1 Exhibit A1 at [12].

 2   Exhibit R3.

 3 Exhibit R1 at [4].

 4   Exhibit A2 at RS02.

 5   Exhibit R3.

 6 Submissions of the Applicant on jurisdiction at [4].

 7   Thomas v Goona Warra Vineyard[2014] FWC 513 at [18].

 8   Transcript at PN 683 and Exhibit R3.

 9   Transcript at PN 803-804.

 10   Ibid at PN 150-161.

 11   Ibid at PN 685.

 12   Ibid at PN 116.

 13   Ibid at PN 190.

 14   Ibid at PN 199.

 15   Ibid at PN 206-207.

 16   [2010] FWA 2078.

 17 Ibid at [75].

 18 Submissions of the Respondent on the SBFDC dated 6 October 2014 at [5].

 19   Exhibit A1 at [25]-[31] and Transcript at PN 63.

 20   Ibid at [32]-[34].

 21 Ibid at [35].

 22 Exhibit R4 at [3].

 23   Transcript at PN 63.

 24   Ibid at PN 64.

 25   Ibid at PN 67.

 26   Ibid at PN 68.

 27   Ibid at PN 69.

 28   Ibid at PN 70.

 29   Ibid at PN 244.

 30   Ibid at PN 65.

 31   Exhibit R2 at [27] and Transcript at PN 824.

 32   Transcript at PN 275.

 33   Exhibit R1 at attachment 1.

 34 Exhibit R2 at [24].

 35   Ibid at [21]

 36 Ibid at [10].

 37   Exhibit R2 at 13 and EB4.

 38   Ibid at EB5.

 39 Ibid at [13].

 40   Ibid EB7.

 41   Transcript at PN 111.

 42   Ibid at PN 268.

 43   Ibid at PN 619.

 44   Ibid at PN 623-625.

 45   Ibid at PN 823.

 46   Ibid at PN 609.

 47   Ibid at PN 1044.

 48   Exhibit R2 at [24(f)].

 49   Ibid PN 638.

 50   Exhibit R1 at attachment 3.

 51 Ibid at [29].

 52   Transcript at PN 661.

 53 Exhibit A1 at [55].

 54 Exhibit R2 at [30].

 55   [2012] FWAFB 1359.

 56 Exhibit R2 at [20].

 57   Transcript at PN 814.

 58   Ibid at PN 945.

 59   Ibid at PN 95.

 60   Exhibit R2 at [24(f)].

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