Susan Terwisscha v Blacktown Workers Club Ltd

[2010] FWA 2209

[2010] FWA 2209

FAIR WORK AUSTRALIA

DECISION

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

Susan Terwisscha
v
Blacktown Workers Club Ltd
(U2009/13851)

COMMISSIONER DEEGAN CANBERRA, 16 MARCH 2010

Termination of employment.

[1] The matter arises from an application filed on 18 November 2009 under s.394 of the Fair Work Act 2009 (“the Act”) by Ms Susan Terwisscha (“the applicant”) for relief in relation to alleged termination of her employment by Blacktown Workers Club Ltd (“the respondent”).

The applicant’s case

[2] The applicant was employed by the respondent continuously for a period in excess of 21 years. At the time of her dismissal she was working in the kitchen of one of the restaurants in the club operated by the respondent.

[3] The applicant’s employment was terminated on 13 November 2009 following a series of incidents which occurred on the afternoon of 12 November 2009.

[4] According to the evidence of the applicant (both oral and given by statement 1 ):

• About 3.20 pm she was returning from her break when she was informed that her father who suffers from ill health was in the club and looking for her



• She found her father, near the bar of the Impressions Restaurant and moved to assist him to buy a drink form the bar



• As she went to help her father she noticed some money lying on the floor directly in front of the bar and stooped to pick it up



• She did not count the money but observed that there appeared to be two $50 notes



• In order to free her hands to assist her father with his drink and change she pushed the money she had picked up into the side pocket of her handbag



• Having assisted her father she moved immediately to return to her workplace in the kitchen of the restaurant as she had already “bundied on” after her break and was running late



• It was her intention to hand the money in as soon as her shift finished at 5pm



• About 4pm two duty managers approached her in the kitchen and she advised them that she had found $100 in the bar and handed it to them



• A little later she was asked to go to the office of the HR manager where she was informed that the patron who had lost the money had lost $150



• She had told the HR manager that she had only found $100 and that the other $50 she had in her handbag was either left over from shopping the previous evening or had been put there by one of the other staff for banking into a “Christmas club” account



• She was suspended from duty and told to return the following day with a support person for a further meeting



• She then voluntarily handed the other $50 to the duty managers to be given to the patron as she was concerned she may have been mistaken



• On 13^th November she attended a meeting with the HR Manager, Mr Drummond and a duty manger, Ms Fletcher. She was accompanied by a union delegate, Mr Riddell



• She again explained what had happened the previous afternoon but at the end of the meeting her employment was terminated.

[5] Mr Dennis Riddell, the LHMU delegate who accompanied the applicant to the meeting on 13 November, gave evidence by statement 2 and at the hearing. It was his evidence that he had been employed by the respondent since 1992. He accompanied the applicant to the meeting on 13 November where they had viewed the CCTV footage which showed the applicant finding the money. It was possible to identify the denomination of the notes she had found by their colour but it was not possible to identify from the footage how many notes had been retrieved from the floor.

[6] According to Mr Riddell’s evidence at the meeting he had explained to Mr Drummond that the applicant had not handed the money in immediately as she was focused on returning to her job as she was the only employee available to cleanup the kitchen and she had been delayed by her father. It was also his evidence that Ms Fletcher had agreed that the applicant had told the two duty managers about the money without prompting when they had approached her in the kitchen the previous day. Mr Riddell also raised with Mr Drummond the applicant’s previous history and suggested that an appropriate outcome was for the applicant to be disciplined in relation to not following procedures in relation to the money.

The respondent’s case

[7] Three witnesses gave evidence for the respondent:

• Mr Geoffrey Drummond;



• Ms Shelly Fletcher;



• Ms Rita Nicholls.

[8] It was the evidence of Ms Nicholls that on 12 November 2009 she had been advised by the receptionist that a patron at the club had lost $150 that he had only minutes earlier withdrawn from an ATM on the club premises. As the patron could describe his movements after withdrawing the money, Ms Nicholls checked security camera footage to see if she could see what had happened to the money. When she checked the footage she was able to see the patron drop the money from his pocket very near one of the bar areas. A couple of minutes later the applicant could be seen picking up the money and after a few moments putting it into her handbag.

[9] After making some enquiries to determine if the money had been handed in, Ms Nicholls informed Mr Drummond, the HR Manager, of her observations and he asked her to accompany Ms Fletcher, another Duty Manager, to ask the applicant whether she had found the money.

[10] It was Ms Nicholl’s evidence that both she and Ms Fletcher approached the applicant in the kitchen which was the applicant’s workplace and asked her whether she had found any money. The applicant had stated that she had found $100 and had retrieved her handbag from a cupboard and taken some notes from the side pocket. She gave Ms Fletcher the notes but then took one $50 note back claiming that it belonged to her. Ms Nicholls claimed the three notes were folded together and each was dog eared on the same corner. When Ms Nicholls had told the applicant that she should have handed the money in immediately the applicant had said that she intended to hand it in after her shift.

[11] According to her evidence Ms Nicholls, together with Ms Fletcher, returned the $100 to the patron who had lost it. The duty managers were told by the patron that he was grateful but had lost $150. They then checked with the receptionist who confirmed that the patron had reported that he had lost $150. When the duty managers reported back to Mr Drummond he requested that the applicant attend for a meeting in his office. Ms Nicholl’s evidence about that meeting corroborated that given by Mr Drummond and Ms Fletcher. After the meeting , Ms Nicholls witnessed the applicant hand another $50 to Ms Fletcher and then leave the club premises.

[12] Ms Fletcher’s evidence was similar to that of Ms Nicholls in most respects. She confirmed that she had asked the applicant whether she had found any money before the applicant mentioned the money and denied that the applicant had volunteered the fact before being asked. She confirmed the applicant’s evidence that a five dollar note was in the same part of the applicant’s handbag as the fifty dollar notes.

[13] Ms Fletcher was also present at the meeting held with the applicant and her union representative on 13 November 2009. Her evidence about this meeting supported that given by Mr Drummond.

[14] Mr Drummond had been the respondent’s HR manager for nearly 8 years. His statement of evidence 3 set out the actions he took upon being informed by Ms Nicholls that the applicant had been observed on the security camera footage retrieving an amount of money dropped by a patron. He viewed the camera footage with both Ms Nicholls and Ms Fletcher and requested that both duty managers approach the applicant to ask her if she had found any money.

[15] Mr Drummond’s evidence corroborated that of Ms Nicholls and Ms Fletcher in matters where he was interacting with either or both of them. In particular:

• He stated that the duty managers had informed him that they had asked the applicant if she had found any money and that she had replied that she had found $100 on the floor and retrieved three fifty dollar notes from her handbag which had been folded together.



• It was his evidence that the applicant had told him during the meeting on 12 November that she was not sure how much money she had found and when asked about the third fifty dollar note in her bag had claimed that it had been put there by another staff member from her work area.

[16] Mr Drummond also stated that when the applicant had told him that she was not sure how much money she had picked up as she hadn’t counted it he had asked how she had intended to hand it in at the end of her shift if she was unaware of how much money she had found. It was his evidence that the applicant was unable to answer this question.

[17] Mr Drummond had informed the applicant that she was suspended from duty and had asked the two duty managers to escort the applicant back to her workplace to retrieve the third fifty dollar note, which the applicant had stated that she would return to be handed to the patron who had dropped the money. He had also advised the applicant that there would be a further meeting held to deal with the matter. The next day the applicant had requested that the meeting be held that day and Mr Drummond agreed.

[18] At the meeting held with the applicant and the union delegate, Mr Drummond was accompanied by Ms Fletcher.

[19] It was Mr Drummond’s evidence that at the meeting on 13^th November the applicant had:

• Again stated that she intended to hand in the money at the end of her shift;



• Stated that it was not as though she had stolen money from the till;



• Advised that no-one had come forward to say that they had placed a fifty dollar note in her handbag as she had claimed the previous day.

[20] Mr Drummond confirmed that Mr Riddell had stated that he had picked up a wallet while on duty and handed it in later. Mr Riddell had also confirmed that on the occasion he had referred to he had not put the wallet in a bag and away in a storage cupboard and had not been asked if he had found the wallet by two duty managers. According to Mr Drummond he had explained to Mr Riddell that those factors made the difference. Mr Drummond had also explained to Mr Riddell that despite the applicant’s long period of service the respondent could not condone theft and that any theft would lead to termination of employment, notwithstanding long service with the respondent.

[21] Mr Drummond took the decision to terminate the applicant’s employment. He noted that although summary dismissal was warranted, due to the applicant’s extensive service the respondent paid five weeks pay in lieu of notice.

[22] Mr Drummond denied that the applicant had mentioned her father at the meeting on 12 November and stated that she had mentioned him only briefly at the 13 November meeting. It was also his evidence that the applicant initially told him she had found “a few notes”, had then claimed she had not counted them and finally had stated that there may have been $150 and not $100 as she had initially thought.

Submissions for the applicant

[23] It was put for the applicant that she was a long-serving employee with no history of conduct requiring disciplinary action or of dishonesty, who had found some money which she honestly believed to be $100 and had delayed handing it in having been delayed by her father.

Further, it was argued that nothing that the applicant had done was consistent with the respondent forming the view that her conduct amounted to theft and merited summary dismissal.

[24] It was also put on behalf of the applicant that she was honest about the amount of money she believed she had recovered from the floor and had maintained the position that she had not counted it. The fact that she gave up another $50 having been told that the patron had lost $150 did not constitute an admission of guilt.

[25] The applicant’s representative submitted that her conduct in failing to immediately hand in the money she had found did not constitute serious misconduct as defined in Regulation 1.07 of the Fair Work Regulations, as there was no evidence of wilful or deliberate behaviour inconsistent with continuation of the contract of employment, or any evidence of serious or imminent risk to the reputation or business of the employer. While there was a suggestion that the applicant may have breached the respondent’s policy by not handing the money in upon finding it, the words of the policy were more consistent with a requirement to hand the money in “as soon as possible” rather than “immediately”.

[26] It was also put for the applicant that there was no evidence that her failure to hand in the money amounted to an intentional act of theft. She had maintained at all times that she intended to hand the money in at the end of her shift. Nothing in the applicant’s conduct was consistent with an intention to retain the money.

[27] It was also argued that the termination of the applicant’s employment was out of proportion with any misconduct she could objectively have been said to have engaged in. In addition it was submitted that the applicant was denied procedural fairness in that she was not given a proper opportunity to respond to the allegation made against her before the decision to terminate her employment was taken. In this respect it was argued that the decision to terminate her employment was made on 12 November 2009, after the first meeting and not after the meeting on 13 November. The fact that the applicant was escorted from the respondent’s premises immediately after the first meeting was an indication that a decision as to her future had been made at that time, and that the second meeting held the following day had no effect on the decision.

[28] Finally it was argued that as the respondent had terminated the applicant‘s employment on the basis of theft and there was no evidence that the applicant was guilty of theft, there was no valid reason for the termination of the applicant’s employment.

The respondent’s submissions

[29] It was submitted for the respondent that the applicant’s employment was terminated for reasons of theft as it was the view of the employer the applicant attempted to keep money found by her on the employer’s premises on 12 November 2009. It was put that the situation was exacerbated by the fact that the employer believed that the applicant, when asked whether she had found money, attempted to deceptively retain a portion of the money she had found.

[30] The respondent did not accept the applicant’s claim that she intended to report her find and hand in the money at the end of her shift, an hour and a half later. It was submitted that the applicant’s response was “a highly improbable and implausible story” concocted by the applicant in explanation of her attempt initially to retain the money she found and then, when it was clear that it was known that she had found the money, to retain $50 of the sum found.

[31] The employer found the applicant’s explanation implausible as:

• she claimed to have retrieved the money from the floor, but not to have counted it or to have been aware of how much money she had found



• she had ample opportunity and time to report her find and hand the money in and had failed to do so



• she had adequate time and opportunity to hand the money in at the bar immediately but did not, despite the fact that she must have realised there would be a distressed person searching for a substantial amount of money.

[32] It was put that the respondent had conducted a full investigation and there was clearly a valid reason for the dismissal, which was that the applicant attempted to steal money from a patron of the respondent. Further, the applicant was given two opportunities to respond to the allegations (on 12 and 13 November) and was notified of the reason for the dismissal. Additionally, at the second meeting the applicant was given the opportunity to have a support person present and took that opportunity. There was no suggestion that the dismissal related to the applicant's performance.

[33] It was the respondent’s submission that the size of the respondent had no effect on the matter of the termination as the employer had about 260 employees and a dedicated human resource professional, and it had been demonstrated that the respondent followed proper procedures in dealing with the termination.

[34] On the basis of a number of authorities 4 the respondent put that in a case of alleged misconduct by an employee an employer would satisfy the evidentiary onus if, having conducted a full investigation and given the employee a reasonable opportunity and time to respond to the allegations, the employer genuinely believed, on reasonable grounds, that the employee was guilty of the misconduct and, taking into account any mitigating circumstances, the misconduct justified dismissal.

[35] The respondent argued that in this case the employer had done all required of it and in the circumstances the dismissal was not harsh, unjust or unreasonable.

Legislation

[36] Section 387 of the Act provides as follows:

Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.

Consideration of the issues

[37] I will consider this matter in the light of the requirements of s.387 of the Act as set out above.

[38] I am satisfied that there was a valid reason for the applicant’s dismissal. On the basis of all the evidence before me, including the CCTV footage 5 of the patron losing, and the applicant finding and then placing in her handbag, the money I have reached the same conclusion as Mr Drummond that the applicant’s intention was to keep the money.

[39] I have reached this conclusion given that the camera footage appeared to show, and there was no evidence for the applicant to the contrary, that the applicant not only did not immediately hand the money across the bar but did not advise anyone in the vicinity of her find. This was so despite it being clear to the applicant that she had retrieved a substantial amount of money and that it was likely that the person who had lost the money had done so fairly recently. She made no enquiries about whether anyone had reported having lost the money although she was dealing directly with at least one member of the bar staff immediately after retrieving the money. I do not accept the applicant’s explanation that she did not stop to count the money in her hurry to assist her father, or to hand it in her haste to return to work. Clearly she stood at the bar for a number of minutes and made no attempt to advise the staff of her find.

[40] It is my finding, on the evidence, that the applicant did not volunteer her find to the duty managers who approached her in the kitchen but when asked whether she had found any money admitted that she had. I make no finding whether the applicant honestly believed she had found $100 or $150. I do find, however, that if she had acted in accordance with reasonable expectations there would have been no doubt how much money she had found. While I make no finding about the applicant’s honest belief in this regard I do find that it was reasonably open to Mr Drummond to reach the conclusion that the applicant’s explanation for the third $50 being in her handbag was implausible, and in those circumstances he was entitled to reach the conclusion that the third $50 was not hers and that she had attempted to dishonestly retain it.

[41] Mr Drummond did not jump to conclusions about the applicant’s conduct. He instructed the duty managers to approach the applicant to ask whether she had found any money. It would appear that further action on the matter became warranted when the duty managers raised with Mr Drummond the mater of the third $50 which the applicant had claimed as her own, but which appeared to have been part of the money lost by the patron. It was the applicant’s responses to Mr Drummond’s questioning which appeared to have raised doubts in his mind about her honesty.

[42] The process followed by the respondent to investigate the matter and to allow the applicant a chance to respond to the allegations raised against her were consistent with the applicant being afforded procedural fairness. I do not accept that Mr Drummond had prejudged the matter and taken the decision to terminate the applicant’s employment prior to the meeting on 13 November. The applicant had the support of a union representative and had requested 6 that the meeting be held that day. It was apparently her view that she had had sufficient time to prepare for the meeting.

[43] Every opportunity was afforded to the applicant to explain her actions in not immediately handing in the substantial amount of money she had found and in claiming that the third $50 belonged to her, despite her being unable to reasonably account for its presence in her handbag. In light of the applicant’s responses to his questions, Mr Drummond’s conclusion, that the applicant had intended to keep the money she had found and then to retain some of it when asked about her find, was reasonable.

[44] Having concluded that the applicant had intended to keep money which did not belong to her Mr Drummond considered that the applicant’s conduct amounted to theft. Mr Drummond was not conducting a criminal enquiry. On the balance of probabilities it was more likely than not that the applicant had retained the money with the intention to permanently deprive the rightful owner of that money. For Mr Drummond’s purposes the applicant’s conduct amounted to theft. In the circumstances it was open to Mr Drummond to determine that the applicant’s conduct was sufficiently serious to warrant dismissal. He was well aware of the applicant’s length of service but took the view that dishonesty could not be tolerated no matter how exemplary, or lengthy, the employee’s service at the time the dishonesty was discovered. Given the type of business being operated by the respondent, Mr Drummond was entitled to take that view. Indeed most, if not all, employers would be entitled to dismiss an employee who had demonstrated dishonesty in the workplace which meant that the employer was no longer able to put trust in the employee.

[45] There was no complaint about the applicant’s performance and the employer’s processes in dealing with the termination of the applicant’s employment were consistent with those that would be expected of an employer of the size and resources of the respondent.

[46] There are no other matters which are relevant to my findings in this matter. I do not consider that the sanction was disproportionate to the conduct of the applicant. I am of the view that it was generous of the employer, in the circumstances, to recognise the applicant’s previous good, and lengthy, service by making a payment in lieu of notice despite taking the view that the conduct warranted summary dismissal.

[47] It is unfortunate that the applicant did not appear to realise that keeping money she found in the club was as inconsistent with her duty as an employee as taking money from a till. 7

Conclusion

[48] On all the evidence I find that the termination of the applicant’s employment was not harsh, unjust or unreasonable. The application for a remedy for unfair dismissal is dismissed. An order to that effect is published separately.

COMMISSIONER

Appearances:

Mr Chris Acev, LHMU for the applicant.

My Greg Arnold, Clubs NSW for the respondent.

Hearing details:

Sydney, 4 March 2010

 1   Exhibit T2.

 2   Exhibit T1.

 3   Exhibit B1.

 4   Whiting v Greenbank RSL Services Club Inc[2008] AIRC 1062, Australian Meat Industry Employees Union v G and K O'Connor Pty Ltd [1998] AIRC 1019.

 5   Exhibit B1, Annexures A and B.

 6   Exhibit B1.

 7   Transcript PN 629, paragraph 34.

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