Tara Boyes v Blair Podiatry Pty Ltd

[2015] FWC 896

[2015] FWC 896

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tara Boyes
v
Blair Podiatry Pty Ltd
(U2012/8989)

COMMISSIONER WILLIAMS PERTH, 6 FEBRUARY 2015

Termination of employment.

[1] This decision concerns an application made by Ms Tara Boyes (Ms Boyes or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Blair Podiatry Pty Ltd (the respondent).

[2] This application was filed in July 2012.

[3] At the request of the applicant and with the consent of the respondent the Commission proceedings with respect to this application were adjourned pending the outcome of related proceedings in the District Court.

[4] The respondent objects to the application on the jurisdictional ground that the applicant was not terminated on the employer’s initiative.

[5] Following an unsuccessful conciliation conference the matter was listed for a hearing.

[6] At the hearing Ms Boyes gave evidence on her own behalf. Evidence was also given for the respondent by the Proprietor of the respondent Mr Timothy Blair (Mr Blair) and Mr William McBride (Mr McBride) who is a licensed Security Consultant and the Director of McBride’s Holdings Australia Pty Ltd which trades as McBride’s Loss Prevention Services.

Factual findings

[7] Ms Boyes had been employed as the respondent’s Office Manager since 2008.

[8] Part of Ms Boyes’ responsibilities was to accept payments from patients. Other employees similarly accepted payments from patients. Payments would be either EFT or cash.

[9] Ms Boyes was also responsible for ensuring that any cash that was received at the practice was banked.

[10] Ms Boyes used MYOB in her job and had some responsibility for doing bank reconciliations but was not a bookkeeper.

[11] In June 2012 the respondent’s Bookkeeper brought to Mr Blair’s attention that there appeared to be undeposited funds exceeding $15,000 that had not been paid into the company’s bank account.

[12] Mr Blair consequently undertook an audit of patient payments and amounts deposited to his bank.

[13] On 18 June 2012 Mr Blair reported apparent theft from the company to the police and subsequently made a statement and provided reports supporting this.

[14] Mr Blair’s wife then contacted Mr McBride and on behalf of the respondent engaged him. Mr McBride met with Mr Blair on 19 June 2012.

[15] Mr Blair advised Mr McBride that he believed cash had been taken from the business without permission and that he had reported this apparent theft to the police who were investigating the matter.

[16] Mr McBride advised Mr Blair that he could not interfere with the police investigation but that he could conduct a risk review in an effort to try and establish opportunities to prevent further potential losses to the business. Mr McBride requested access to speak to all of the respondent’s staff to which Mr Blair agreed.

[17] Shortly thereafter Mr Blair with Mr McBride interviewed Ms Boyes.

[18] As to what then transpired in this meeting there is general agreement between the evidence of all three witnesses other than on one critical issue.

[19] Mr McBride introduced himself and Ms Boyes was advised that he was involved in loss prevention. Ms Boyes was asked whether she would like anyone else to be present during the meeting and she said no to this offer however she was not at that point aware of the seriousness of the future discussions.

[20] Mr McBride asked Ms Boyes whether she knew anything about the missing money. Ms Boyes replied that she did in that her and Rochelle, the Bookkeeper, had gone through the payments last week.

[21] Mr McBride asked what she thought had been happening for so many invoice and payments entries to be wrong. Ms Boyes explained the discussions she had had with Rochelle and her experiences with the system and referred to a spreadsheet she had been compiling at Rochelle’s request which she then printed off from her computer and provided to Mr McBride.

[22] A number of other questions were asked and answered by Ms Boyes as to whether she could offer any suggestion as to what might have occurred or whether she knew of any reason for the discrepancies.

[23] Ms Boyes was asked whether she knew how much was missing to which she replied no.

[24] Mr Blair then said there had been $4,000 missing in the past couple of months and $15,000 in the last year and said words to the effect of:

“No wonder I can’t pay my bills. How could you miss this? You have been doing this for years it’s your job how could you miss it with the bank reconciliations?”

[25] Ms Boyes asked if she was being accused and was told that this was not the case that they were just looking for answers to help them with the situation.

[26] Ms Boyes said words to the effect of:

“So it’s my arse on the line!”

[27] At some point Ms Boyes became upset and Mr McBride handed her a tissue.

[28] Ms Boyes explained that other staff have access to the cash not just her and that she had been having issues with MYOB.

[29] Ms Boyes was told that due to the amount of money involved it was now a police matter.

[30] Ms Boyes replied she would get legal advice and speak to her father.

[31] Ms Boyes was advised that she was to be suspended until the police investigation was finalised.

[32] Ms Boyes again asked if she was being accused and Ms Boyes’ evidence was that they both told her she was not being accused.

[33] The evidence of Mr Blair and Mr McBride is that Ms Boyes said:

“I resign, I cannot work for you if you do not trust me and I want the payment for the overtime I’ve worked.”

[34] Ms Boyes agrees she said, amongst other things, that she cannot work for someone that does not trust her but denies she said she resigned.

[35] In reply to the request for payment for the overtime Mr Blair told her that it was no problem for her to have a cheque.

[36] The meeting ended and Mr Blair asked Ms Boyes for the office keys which she gave him and Mr Blair signed and gave Ms Boyes a cheque.

[37] Ms Boyes asked if she could delete her personal things off her computer and Mr Blair told her not to worry about that. Ms Boyes’ evidence was that she managed to get her personal diary but was unable to take her personal fan heater when she left.

[38] Having observed the three witnesses and considered their evidence my finding as to whether or not Ms Boyes told Mr Blair and Mr McBride that she would resign is that that she did indeed say words to that effect.

Consideration

[39] Only a person who has been dismissed can apply to the Commission for an unfair dismissal remedy under section 394 of the Act.

[40] As provided for in section 386 of the Act below a person is dismissed if their employment has been terminated on the employer’s initiative or they have resigned but were forced to do so because of conduct, or a course of conduct, engaged in by their employer.

“386  Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[41] In this case there is no evidence that Ms Boyes’ employment was terminated on the respondent’s initiative. At no time was Ms Boyes told during the meeting with Mr Blair and Mr McBride that she was dismissed.

[42] On Ms Boyes’ own version of the evidence she was expressly told she was not being accused but that she was suspended until the police investigation was finalised. Whilst this may have been upsetting for her this was not conduct by her employer that forced her to resign.

[43] Ms Boyes was not dismissed within the meaning of section 386 of the Act and so is not able to make this application for an unfair dismissal remedy. This application will be dismissed and an order to that effect will be issued.

COMMISSIONER

Appearances:

T Boyes on her own behalf.

M Darcy, representative for the respondent.

Hearing details:

2015.

Perth:

February 3.

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