Thi Phuong Trinh Le v Vivid Nails & Beauty
[2023] FWCFB 96
•25 MAY 2023
| [2023] FWCFB 96 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Thi Phuong Trinh Le
v
Vivid Nails & Beauty
(C2023/93)
| VICE PRESIDENT CATANZARITI | SYDNEY, 25 MAY 2023 |
Appeal against decision [2022] FWC 3322 of Deputy President Dean at Canberra on 21 December 2022 in matter number U2022/9467 - permission to appeal refused – appeal dismissed.
Background
Ms Thi Phuong Trinh Le (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required, against a decision of Deputy President Dean (the Deputy President) issued on 21 December 2022 (the Decision). The Decision concerned an application brought by the Appellant for an unfair dismissal remedy from her employment with Vivid Nails & Beauty (the Respondent) under s.394 of the Act.
On 24 January 2023, directions were set for the filing of material and the matter was listed for hearing on 7 March 2023. As this matter will determine permission to appeal and merits, both the Appellant and the Respondent were required to file material, and as such the Appellant and Respondent filed their respective outline of submissions. On 2 March 2023, both parties consented to both permission to appeal and merits being determined on the papers, and the listing was subsequently vacated. We are satisfied this matter can be adequately determined based on the materials before the Commission, pursuant to s.607(1) of the Act.
For the reasons that follow, permission to appeal is refused and the appeal is dismissed.
Decision under appeal
The Appellant was employed by the Respondent as a Nail Technician. Among her duties, she was required to handle cash which involved taking cash payments from customers and placing the cash in a box inside the cupboard under the reception desk.
On 3 September 2022, the Respondent claimed that money was missing from the cash box. The reception area is monitored by a security camera. Upon review of the footage captured by the security camera the Respondent formed the view that the Appellant was the person who took the money.
On 4 September 2022, the Appellant attended a meeting with Ms Bui (Co-owner) and Ms Vu (Manager) after her shift. During that meeting, the Appellant was asked to respond to the allegation of theft. The Appellant denied taking the money.
Despite some discrepancy in the evidence as to what was said at the meeting on 4 September 2022, there is no dispute that the Appellant’s employment was terminated with immediate effect at the conclusion of the meeting.
Further, there is no dispute that the Respondent is a small business employer within the meaning of the Act. Given the Respondent’s objection to the application on the basis that the dismissal of the Appellant was consistent with the Small Business Fair Dismissal Code (the Code), the jurisdictional issue was required to be determined by the Deputy President at first instance before being able to consider the merits of the unfair dismissal application. The jurisdictional issue was whether the Respondent complied with the Code in dismissing the Appellant. Specifically, the Code requires that the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.
The Deputy President in her Decision referred to the Full Bench decision in John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo[2012] FWAFB 1359 and its consideration of the approaches taken in Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922 and Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café[2010] FWA 7891 with respect to determining whether the employer believed on reasonable grounds that the employee’s conduct justified summary dismissal.
The Deputy President correctly identified that there are two steps in the process of determining whether the relevant aspect of the Code was satisfied. Firstly, there needs to be a consideration of 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 was necessary for the Deputy President to consider whether that belief was based on reasonable grounds. It is noted that the second element incorporates the concept that the employer has carried out a reasonable investigation into the matter, but that it is not necessary to determine whether the employer was correct in the belief that it held.
The Deputy President found the Appellant’s dismissal to be consistent with the Code and accordingly dismissed her application by virtue of s.385(c) of the Act.
Hearing at first instance
The Deputy President set out the Respondent’s version of events as contained in the Form F3 response to the application at [15] of the Decision which were as follows:
“On Saturday the 3rd of September, it had been a busy morning and we were aware that several customers had paid cash that did not require change (including a card/cash $10/$100 split payment at 11:15am received by Ms Le) or where change was less than $50. As such, we could reasonably assume that $50 notes were present in the cash box.
When manager Thao [Vu] went to receive her first cash payment of the day at 1:09pm, she exclaimed that she noticed no $50 notes were present in the cash box and the overall amount of cash was unusually low considering the number of cash payments received earlier.
We convened to add up the known cash payments prior to 1:09pm and established that $630 should have been present in the cash box (including the float) yet the amount only added up to $430, meaning $200 had gone missing. On that same day, we questioned each employee about the cash amounts they received. Of note, Ms Le, who received the first cash payment at 11.15am, insisted that she only received $20 notes for this transaction.
At close of business, we announced to all four rostered employees working that day that we would be reviewing the CCTV footage that night and warned anyone involved in the alleged theft to come forward to either myself or Thao confidentially via phone call. No employee attempted to contact us that evening.
We went through the CCTV footage at home that evening and noticed suspicious behaviour exhibited by only one employee, that of Ms Le.
Footage clearly shows Ms Le accepting two $50 notes from the customer at 11:15am which contradicts her earlier statement of only receiving $20 notes for this transaction.
An office chair is situated behind the reception desk. Ms Le does not sit on the chair nor does it appear to impede her access yet Ms Le appears to deliberately position the chair behind the reception desk in a way that would obstruct view of the cupboard where cash is kept from staff or patrons situated behind the reception area.
When depositing the cash received by the customer, Ms Le appears to spend an inordinate amount of time with both hands in the cupboard and her body positioned in such a way to obstruct view of the cupboard opening from the security camera. As the customer did not require change, we viewed this as suspicious.
Ms Le was also wearing a long-sleeve hoodie beneath her uniform, suggesting a method to conceal cash. However, she was not the only staff member with long sleeves.
Between 11:16am and 1.00pm a few other employees received cash payments, yet their actions did not appear suspicious (cash was stowed swiftly with one hand, cupboard opening was unobstructed and in view of the camera).
At 1pm a different employee (Leah) received a $70 cash payment comprising a $10 note, two $5 notes and a $50 note. $2 in change was given. Although some time was taken to retrieve the $2 coin, both her sleeves were rolled up, she did not appear to cover the cupboard opening and she appeared to place the cash in the box after handing the customer their change.
At 1:02pm Ms Le received a cash payment of a single $50 note with $9 change given. Here we noticed a repeat of the suspicious actions, such as the unnecessary repositioning of the chair, spending an inordinate amount of time with both hands in the cupboard, and blocking view of the open cupboard with one leg straddling the outside of the cupboard door.
At 1:09pm, Thao accepted a cash payment of $120 with $7 change given. It was at this time that she noticed the absence of $50 notes and overall low cash amount. At the time, Thao was aware that a $50 note had been received at 1pm by Leah and exclaimed that $50 had somehow disappeared in a couple of minutes.
Review of the footage clearly shows Ms Le was the last person to accept a $50 note at 1:02pm and no patron or employee visited the reception desk between that time and 1:09pm when Thao noticed the absence of $50 notes and low cash amount. We concluded that between those times, Ms Le was the only person that could have taken this money.
The two $50 notes Ms Le received at 11:15am, the $50 note received by Leah at 1.00pm and the $50 note received by Ms Le at 1.02pm added up to $200, which equalled the missing cash discrepancy.Together, the contradiction of Ms Le’s statement of the notes she received at 11.15am, the suspicious behaviour when receiving payments, and the missing amount directly after Ms Le received a cash payment, led us to strongly believe Ms Le had engaged in serious misconduct involving theft.
Additionally, upon reviewing CCTV footage during Ms Le’s previous shifts the weekend prior (27-28th of August), we noticed the same suspicious behaviour exhibited by Ms Le when receiving certain payments. In particular, the deliberate repositioning of the chair to obstruct view of the desk cupboard when anticipating a transaction, even though Ms Le does not sit on the chair and it in no way impedes her access. This led us to believe that serious misconduct may have occurred more than once before Saturday 3rd September.
That evening, we discussed next steps to dealing with the matter and approaching Ms Le on the following day.
The next day, Sunday 4th of September, Ms Le was allowed to work her full shift. Another employee alerted us that Ms Le had made a comment to her that morning to the effect of ‘I don’t think anyone stole the money, who would take two minutes to steal, that’s too long’. We thought the emphasis on the amount of time was unusual and again added to our already strong belief Ms Le engaged in serious misconduct.
At close of business, Ms Le was asked to stay behind after other employees had left. At this point we informed Ms Le that we believed she had engaged in serious misconduct and explained our reasoning as outlined above. We asked her to explain the missing amounts in relation to payments which she received and the suspicious behaviour we noticed on security footage. Ms Le denied any wrongdoing but was unable to provide a compelling answer to any of the reasons or questions we put forward. Ms Le then proceeded to frantically ‘search’ the floor near the reception area, suggesting the missing cash must have fallen on the ground, but we viewed this behaviour as disingenuous.
We then informed Ms Le this was her final shift at the salon, and we would no longer be rostering her for the reasons already outlined. Ms Le then demanded to see CCTV footage ‘proving’ any wrongdoing. However, we believe our reasoning was already sufficiently explained to Ms Le and we did not deem it necessary to take up more time presenting footage when we considered the matter already settled. Ms Le was given her final pay and asked to leave the premises. As Ms Le was a casual employee, she was not entitled to any annual or carer’s leave pay-outs.”
The Deputy President accepted Ms Bui’s evidence above, which the Deputy President found was also consistent with the evidence Ms Bui gave during the hearing and supported by corroborating evidence of other witnesses, and was satisfied that Ms Bui did in fact hold the belief that as a matter of fact (i) the Appellant engaged in the conduct in question; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal.
The Deputy President also found that there were reasonable grounds for Ms Bui holding this belief, and in reaching that conclusion referred to other matters involving consideration of the Code and the issue of whether there were reasonable grounds in Harley v Rosecrest Asset Pty Ltd T/A Can Do International [2011] FWA 3922 and Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Café[2010] FWA 7891, and subsequently followed in John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo[2012] FWAFB 1359.
The Respondent tendered into evidence two pieces of video footage taken on 3 September 2022 which captured the Appellant being handed two $50 notes from a customer at 11:15am and one $50 note from another customer at 1:02pm.
The Deputy President noted that the Respondent’s belief was in part grounded in the Appellant’s failing to disclose that she had taken $50 notes from customers. Further this belief was put to the Appellant, allowing her the opportunity to respond.
Appellant’s Submissions at first instance
Submissions made on behalf of the Applicant at first instance contended that the dismissal was not consistent with the Code for the following reasons:
“a.The summary dismissal of the Applicant for alleged theft is not supported by the evidence provided by the Respondent.
b.The CCTV footage could not ground a reasonable belief on the part of the Respondent that the Applicant had stolen money from it.
c. The Respondent did not file a police report.”
The Deputy President found that the Respondent’s failure to file a police report so a proper investigation could be conducted, did not detract from the reasonable basis for Ms Bui’s belief as to the Appellant’s conduct. To the extent it is necessary, The Deputy President was satisfied that the investigation undertaken by the Respondent was reasonable in the circumstances. The Deputy President noted that the failure of the Respondent to show the Appellant the CCTV footage does not change the matters about which the Commission must be satisfied in determining whether the dismissal was consistent with the Code.
In cross examination, the Applicant at first instance, and the Appellant here, agreed that the CCTV footage showed her receiving two $50 notes at 11:15 am on 3 September 2022. When asked why she repeatedly stated that she had only received $20 notes, the Appellant explained that she had no memory and could not recall at the time because she had to “do a lot of things during the service”.
The Deputy President emphasised that in finding the Appellant’s dismissal was consistent with the Code, no finding has been made that the Appellant took the missing money, given the Commission is only required to determine whether the belief held by the Respondent that the Appellant engaged in misconduct was reasonable in the circumstances.
Respondent’s Submissions at first instance
Submissions made on behalf of the Respondent’s included the following:
“a.As a small business with fewer than 15 employees, the employer has demonstrably complied with the small business fair dismissal code in taking action to dismiss the Applicant on reasonable grounds for serious misconduct. It was submitted that the employer undertook appropriate action to dismiss the Applicant for a serious breach of trust and to protect the business from further damage.
b.The substantive contention put forward by the Applicant appeared to be that the employer must provide irrefutable proof that serious misconduct was committed before a dismissal is warranted and such an argument is both misleading and misconstrued: misleading because the Applicant does not address the circumstances presented by the Respondent that established reasonable grounds, which is supported by CCTV footage but not relied solely upon it; and misconstrued because such a burden of proof is understood to be reserved for criminal convictions, not cases of dismissal.
c.In cases of serious misconduct where there is a loss or damage to the business or its personnel, the employer is entitled to take reasonable measures to protect the business and its personnel from further loss or damage.
d.The Code clearly states that cases of serious misconduct require a belief on reasonable grounds for dismissal, not proof beyond a reasonable doubt. Demanding the latter of a small business would be onerous and irrational. The Code exists precisely for situations such as this to protect small businesses who do not have dedicated human resource expertise, from unreasonable demands and predatory claims.”
The Deputy President found that the Respondent’s submission that it is not necessary for it to provide irrefutable proof that serious misconduct was committed, were correct.
Conclusion at first instance
Having considered the matter specified in s.385(c) of the Act and the steps taken in John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo[2012] FWAFB 1359, the Deputy President was satisfied that the dismissal of the Appellant was in compliance with the Code within the meaning of s.385 of the Act.
Principles on appeal
The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin[1] a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[2]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[3] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Grounds of appeal and submissions
The Appellant’s grounds of appeal are set out in paragraph form in the Notice of Appeal. We have set out the following as a summary of what we understand to be the Appellants grounds of appeal from the Notice of Appeal and submissions:
· Ground 1 – Misuse of the Code (Error of Law): The Appellant submitted that the Respondent erred in their application of the legal criteria for determining whether the dismissal was unfair, including whether the employer had a valid reason for the dismissal and whether the dismissal was proportionate to the alleged misconduct. The Appellant contends that the Respondent misused the Code – submitting that it should be abandoned because it provides neither clear advice nor a ‘sufficient safeguard’ for small business (or for workers), referencing the Workplace Relations Framework, Productivity Commission Inquiry Report Volume 2, No. 76, 30 November 2015 which provides the following:
“[The Code] … may represent a significant lessening of the standard that has been required of employers in the past. Whether it does will depend on how the concept of ‘reasonable grounds’ is interpreted. For an employer to believe ‘on reasonable grounds’ that a summary dismissal is justified may require that a level of procedural fairness be accorded to an employee, such as being provided with an opportunity to respond to allegations of misconduct or lack of performance.”
· Ground 2 – Lack of reasonable grounds (Error of Law): The Appellant submits that the Employer did not comply with the Code because it neither conducted a reasonable investigation (including its investigation was procedurally unfair) nor had reasonable grounds to form a belief that the Appellant engaged in conduct which justified summary termination. Therefore, the Commission should not have found that the Employer complied with the Code.
· Ground 3 – Errors of Fact (Error of Fact): The Appellant submits:
a. She did not engage in the alleged theft;
b. There is no independent evidence that the alleged theft occurred at all (or when it occurred if it did) including because at the relevant time the Employer did not maintain any accounting books, records, or other systems which allowed it to correctly identify or record the amounts of cash, if any, taken from clients by the Employer or its employees;
c. Although the Employer maintained a CCTV system in the workplace, the CCTV footage does not show the Appellant engaging in any misconduct – when the alleged theft was allegedly ‘discovered’ by the First Employer (Ms Thao Vu) at around 1310 hours on Saturday 3 September 2022, Ms Vu immediately screamed out that cash had been stolen, watched the CCTV footage on her mobile phone, and then said words to the effect of ‘we know who took the money’;
d. Although Ms Vu immediately claimed to have identified both the alleged theft and the perpetrator, she could not have known if any cash had been stolen, or if cash had indeed been stolen when it was stolen or by who – noting that it is possible that Ms Vu herself had stolen the cash, but this was (apparently) not even contemplated by the second Employer (Ms Bui);
e. When the Employers (together Ms Vu and Ms Bui) convened at some later time ‘to add up the known cash payments prior to 1:09pm’, they claim to have established that ‘$630 should have been present in the cash box (including the float) yet the amount only added up to $430, meaning $200 had gone missing’ – however, there was (and is) no independent evidence in the form of business, accounting, or cash register records upon which to base this assertion;
f. Together Ms Vu and Ms Bui claim to have watched the CCTV footage on the evening of 3 September 2022 and then to have relied on that footage to ground their ‘strong belief Ms Le engaged in serious misconduct’ by way of theft and to terminate her employment the following day (noting that they later resiled from the original position that the CCTV footage evidenced the Appellant stealing cash, but only after they produced the footage to the Commission);
g. In its response to the Appellant’s unfair dismissal application, the Employers stated that ‘Review of the footage clearly showed Ms Le was the last person to accept a $50 note at 1.02 pm and no patron or employee visited the reception desk between that time and 1.09 pm’ – the fact that the Appellant was the last person to accept a $50.00 note before Ms Vu screamed out about the alleged theft at 1310 hours on 3 September 2022 is not evidence that the Appellant (or anyone else) in fact took any cash;
h. The selectively edited CCTV footage provided by the Employer does not show the Appellant stealing cash. Nor does it show, as contended by the Employer, the Appellant ‘deliberately positioning a chair [to obstruct the] view of the cupboard where cash is kept…’ or ‘spending an inordinate amount of time with both hands in the cupboard;’
i. The Appellant showed the CCTV footage supplied by the Employer to an expert forensic IT specialist from South Australia, who supported the Appellant’s contention that the CCTV footage did not show her stealing cash; and
j. As the CCTV footage did not provide grounds for the formation of a ‘belief on reasonable grounds’ by the Employer that the Appellant had engaged in misconduct, the Commission should not have found that the basis of their belief was reasonable.
· Ground 4 - Manufactured Allegations (and Lack of Police Report) (Error of Fact): The Appellant submits that for a dismissal to be deemed fair under the Code, ‘it is sufficient, though not essential, that an allegation of theft……be reported to police’ (the police report criterion). Therefore, to make a police report, an employer ‘must have reasonable grounds’. The Appellant therefore submits the following:
a. The police report criterion is supposed to be a safeguard for employees against spurious and baseless claims made against them by an employer - in this case, no police report was made (other than by the Appellant). The Commission failed to give this fact sufficient weight.
b. The Employers’ failure to make a report to police supports the Appellant’s contentions that the Employer manufactured the allegations, did not have reasonable grounds to make a police report, and did not have reasonable grounds to form a belief that she engaged in misconduct.
Ground 5 - Witness Intimidation – Potential Breaches of the Act (Error of Law): The Appellant submits that witnesses were intimidated contrary to section 676 of the Act, and that potentially, false or misleading evidence was provided to the Commission, contrary to section 678(2) of the FW Act.
Ground 6 – Section 678(2) of the Act (Error of Law): The Appellant submits that the first language of the Respondent’s witnesses is Vietnamese. Two of those witnesses speak little or no English and required an interpreter during the hearing on 13 December 2022. Despite this, all the Respondents’ written and filed witness statements were written in near-identical terms and in near-perfect English. They were prepared by the Respondent’s representative, who does not speak Vietnamese. Therefore, the Appellant contends that the Respondent’s witness statements may not reflect true and accurate statements by the witnesses.
During the hearing on 13 December 2022, the Commission was required to direct the Respondent’s witnesses on multiple occasions. These witnesses were all in the same room when giving evidence and to avoid collusion were directed by the Commission to sit in full view of the camera and/or behind the witness giving evidence. Nevertheless, the Respondent’s witnesses were allowed to listen to each others’ evidence. Additionally, the Commission had to direct the Respondent’s representative to refrain from giving evidence. No reference was made in the Decision as to the credit or conduct of the Respondent’s witnesses during the hearing or otherwise.
Ground 7 - Section 676 of the Act (Error of Law): Immediately after the Appellant filed and served her witness statements:
a. Two of her witnesses were approached at their homes by an alleged (criminal) representative of the First Employer and threatened to withdraw their statements and directed to not give evidence.
b. Consequently, these witnesses withdrew their statements and one obtained a medical certificate so as to be excused from giving evidence to the Commission.
The Appellant notes that the Commission was on notice of the above, yet failed to have regard to this in making its decision. The Appellant submits that the Respondents’ behaviour and that of its representatives was in breach of the Act and the Full Bench might consider providing guidance in respect of these issues.
Ground 8 – Diversity of Decisions (Error of Law): The Appellant submits that the Commission failed to consider case law that supports the Appellant and referred to a range of decisions dealing with the Code to support this submission.
Ground 9 - Significant Injustice (Error of Fact): The Appellant submits that she is an international student who relied on her employment with the Employer. Further, that she was falsely accused of theft and threatened with defamation within the Vietnamese community if she did not confess to the theft. The Appellant did not confess, and her employment was terminated. Both the threats and the termination caused her significant distress as did the Decision as it represents apparent confirmation that the Employer were correct to dismiss her. The Decision also emboldens the Employer to continue to behave badly going forward.
Ground 10 – Public Interest. The Appellant further submits that the Commission’s finding that her dismissal was consistent with the Code was unjust and counter-intuitive, and therefore her appeal is in the public’s interest for the following reasons:
a. The Decision has been entirely grounded on the basis of ‘reasonableness’. The Appellant contends that the Respondent held no reasonable grounds to form such belief that the Appellant stole cash from it on 3 September 2022.
b. The Appellant submits that throughout the Decision there has been no consideration as to the probability the cash may have been taken by another person due to the absence of reliable accounting systems, unreasonable conduct, lack of evidence and therefore the ungrounded basis for the belief held by the Respondent.
c. Further, the Respondent’s allegations of theft were not supported by a proper investigation or by independent evidence. No clarity on the nature of what would constitute a proper investigation has been provided by the Commission, other than the investigation undertaken was ‘reasonable in the circumstances’.[4]
d. The Respondent’s conduct, including its threats towards and actual defamation of the Appellant following these allegations, was unfair and prejudicial towards the Appellant and was not taken into consideration by the Commission; and
e. The Commission’s decision was unjust not only because the Appellant did not engage in the alleged misconduct, but also because theft is a serious allegation which can have devastating consequences for an employee against whom such an allegation is levelled. Despite the Commission emphasising that in finding the Appellant’s dismissal is consistent with the Code, ‘no finding has been made that the Appellant took the missing money.
The Appellant submits that the Decision was based on a significant error of fact, being an error in the identification of reasonable grounds, and therefore, an error in the decision-making process.
The Appellant submits that in exercising its discretion, the Commission erred by failing to consider material considerations and evidence including that:
a. There was no evidence that any money had been stolen as there were no established accounting mechanisms and systems in place to record cash holdings, and as such the standard of proof requires more than mere conjecture, guesswork, or surmise by the employer.
b. The policy behind the special treatment of small businesses which underpins measures such as the Code, was implemented to reduce the burden placed upon small businesses by the provisions of the FW Act. It is not to provide a ‘get out of goal free’ card, allowing small businesses to make bare allegations and terminate employees on concocted imputations.
c. The Respondent did not hold a genuine belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal as they continued to employ the Appellant for an entire shift on 4 September 2022 before terminating her employment. Therefore, the Respondent’s belief was not based on reasonable grounds, and a reasonable investigation into the matter had not been undertaken.
Consideration
We reject the Appellant’s first appeal ground that the Deputy President made an error of law in her application of the legal criteria for determining whether the dismissal was unfair. It is apparent the Deputy President applied the correct legal principles to the question of whether the Respondent had satisfied the Code. On upholding the jurisdictional objection, it was not necessary or appropriate for the Deputy President to consider the issue of whether the Respondent had a valid reason for dismissal. The Appellant’s first appeal ground appears to proceed on the basis that the Code had been “misused” in reference to a report of the Productivity Commission. The Deputy President determined the question as to whether the Respondent had reasonable grounds to hold the belief that it did in an orthodox way, and in a manner consistent with existing authorities.
We also reject the second ground of appeal that the Deputy President made an error of law in finding that the Respondent had reasonable grounds to hold the belief that it did. This ground of appeal is based on the premise that the investigation was procedurally unfair, and the Respondent did not have reasonable grounds to form a belief that the Appellant engaged in conduct which justified summary termination. The evidence before the Commission disclosed that the Appellant stated that she did not take a $50 note from a customer over the counter, and it was subsequently established that she did so on more than one occasion.
As the Deputy President found, the Applicant agreed that the CCTV footage showed her receiving two $50 notes at 11:15 am on 3 September 2022 despite having earlier stated repeatedly that she had only received $20 notes. It is apparent from the Decision at first instance that the Deputy President also noted the Appellant’s explanation for not remembering that she had taken a $50 note was that she had to “do a lot of things during the service”. Therefore, the Deputy President did take all evidence before her into account in finding that the Respondent had reasonable grounds for forming the belief it did, and thus that it complied with the Code.
The Appellant’s third ground of appeal asserts a range of what it submits were errors of fact made by the Deputy President. Ground 3(a) asserts there was an error of fact as the Appellant did not engage in the alleged theft. The Deputy President stated explicitly that she did not make such a finding, and as already stated it is unnecessary for the Deputy President to have done so to deal with the jurisdictional issue.
Ground 3(b) asserts that there is no independent evidence that the alleged theft occurred, including because at the relevant time the Employer did not maintain any accounting books, records, or other systems which allowed it to correctly identify or record the amounts of cash, if any, taken from clients by the Employer or its employees. At the risk of repeating ourselves, the determination of the jurisdictional question did not require the Deputy President being satisfied that the theft occurred, but that the Respondent had reasonable grounds for believing that it did. There was evidence before the Deputy President concerning why the Respondent held the view that the amount of money in the cash box was less than there should have been given the number of customers on 3 September.
Ground 3(c) states that the CCTV footage does not show the Appellant engaging in any misconduct. The CCTV footage does establish however that the Appellant took $50 notes from customers when she had denied doing so, and in the circumstances where there were no $50 notes in the cash box when it was inspected. Ground 3(c) does not demonstrate an error of fact.
Ground 3(d) asserts that Ms Vu could not have known if any cash had been stolen, or if cash had indeed been stolen, when it was stolen, or by who, noting that it is possible that Ms Vu had stolen the cash. The Deputy President was satisfied from the evidence that the Respondent had a reasonable basis to have formed the belief that the Appellant had taken the money on the basis that her version of events changed concerning whether she had taken $50 notes from customers, the CCTV footage demonstrating that she had taken $50 notes from customers, and the absence of $50 notes in the cash box not long after the Appellant had taken a $50 note from a customer. We do not accept the Deputy President reaching this conclusion demonstrates an error of fact.
Ground 3(e) states that when Ms Vu and Ms Bui convened at a later time they claim to have established that $630 should have been present in the cash box (including the float) yet the amount only added up to $430, meaning $200 had gone missing, however, there was (and is) no independent evidence in the form of business, accounting, or cash register records upon which to base this assertion. We are satisfied that there was sufficient evidence before the Deputy President to accept that money was missing from the cash box. It was not in dispute that the CCTV footage established that several $50 notes were taken from customers and there were no $50 notes in the cash box. Appeal ground 3(e) does not establish an error of fact.
Ground 3(f) states that together Ms Vu and Ms Bui claim to have watched the CCTV footage on the evening of 3 September 2022 and then to have relied on it to ground their ‘strong belief Ms Le engaged in serious misconduct’, noting that they later resiled from the original position that the CCTV footage evidenced the Appellant stealing cash. It is true that the Respondent retreated from the position that the CCTV footage of itself, established that the Appellant stole money. However, Ms Vu and Ms Bui did not resile from the position that the conduct of the Appellant as seen in the CCTV footage supported their belief that it was the Appellant who took the money. Appeal ground 3(f) does not establish an error of fact.
Ground 3(g) argues that the fact of the CCTV footage showing that the Appellant was the last person to accept a $50.00 note before Ms Vu claimed there had been an alleged theft at 1310 hours, is not evidence that the Appellant (or anyone else) took any cash. It is apparent from the Decision of the Deputy President this was only one of a number of factors that were taken into account in being satisfied that the Respondent had reasonable grounds for forming the belief that it did. Appeal ground 3(g) does not establish an error of fact.
Ground 3(h) argues the CCTV footage provided by the Employer does not show the Appellant stealing cash and does not show the Appellant ‘deliberately positioning a chair [to obstruct the] view of the cupboard where cash is kept…’ or ‘spending an inordinate amount of time with both hands in the cupboard;’. The Deputy Presidents consideration and conclusion are found in paragraphs [32] to [40] in the Decision. The quotations set out above arise from the Respondents case and are not found in the Deputy Presidents consideration or conclusion. Appeal ground 3(h) does not establish an error of fact.
Ground 3(i) states that the Appellant showed the CCTV footage supplied by the Respondent to an expert forensic IT specialist from South Australia, who supported the Appellant’s contention that the CCTV footage did not show her stealing cash. The Decision does not state the CCTV footage of itself showed the Appellant stealing cash. Appeal ground 3(i) does not establish an error of fact.
Ground 3(j) states the CCTV footage did not provide grounds for the formation of a ‘belief on reasonable grounds’ by the Employer that the Appellant had engaged in misconduct, and the Commission should not have found that the basis of their belief was reasonable. It is apparent from the Decision of the Deputy President that the CCTV footage was but one of a number of factors that, taken together, satisfied the Deputy President that the dismissal was consistent with the Code.
As the Appellant’s third ground of appeal discloses no arguable case of appealable error, we reject it.
The Appellant submits under appeal ground 4 that it was an error of fact for the Deputy President to hold that the dismissal was consistent with the Code when the Respondent had not reported the matter to the police. The Appellant further submits that the Deputy President failed to give this factor sufficient weight, and further supports the Appellants contention that the allegations were manufactured.
The Deputy President said the following at [38] of the Decision.
“The other criticisms made by the Applicant of the Respondent, such as its failure to file a police report so a proper investigation could be conducted, do not detract from the reasonable basis for Ms Bui’s belief as to the Applicant’s conduct. To the extent it is necessary, I am satisfied the investigation undertaken by the Respondent was reasonable in the circumstances. Further, the failure of the Respondent to show the Applicant the CCTV footage does not change the matters to which the Commission must be satisfied in determining whether the dismissal was consistent with the Code.”
The Code includes the following:
“...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.”
The Deputy President’s conclusion that the failure to file a police report did not detract from the reasonable basis for Ms Bui’s belief as to the Appellant’s conduct was consistent with the Code stating that it is not essential to file a police report. We do not accept that the Deputy President failed to give the matter sufficient weight, and it is clear the matter was considered. A fair reading of the Deputy President’s Decision makes clear that her conclusion that the dismissal was consistent Code was based on several factors taken together.
Appeal ground 5 appears to assert that the Deputy President made an error in law on the basis of a claim that witnesses were intimidated contrary to section 676 of the Act, and that potentially, false or misleading evidence was provided to the Commission, contrary to section 678(2) of the Act. Whilst a brief submission was made to this effect at the matter at first instance on behalf of the Appellant,at paragraph 13 of the transcript, no evidence was led to establish the claim. The Deputy President had no basis to make a finding that the allegation was substantiated. Appeal Ground 5 does not establish an error of law.
The Appellant submits under appeal ground 6 that the Deputy President made an error of law in relation to section 678(2) of the Act. Section 678(2) reads as follows:
“Inducing or coercing another person to give false or misleading evidence
(2) A person (the offender) commits an offence if:
(a) another person (the witness) has been, or will be, required to appear as a witness in a matter before the FWC (whether the person is to appear before the FWC or a delegate of the FWC);
and
(b) the offender induces, threatens or intimidates the witness to give false or misleading evidence in the matter.
Penalty: Imprisonment for 12 months.”
The Appellant submitted further that the first language of the Respondent’s witnesses is Vietnamese. Two of those witnesses speak little or no English and required an interpreter during the hearing on 13 December 2022. Despite this, all the Respondents’ written and filed witness statements were written in near-identical terms and in near-perfect English. They were prepared by the Respondent’s representative, who does not speak Vietnamese. Therefore, the Appellant contends that the Respondent’s witness statements may not reflect true and accurate statements by the witnesses.
The Appellant submitted that during the hearing on 13 December 2022, the Commission was required to direct the Respondent’s witnesses on multiple occasions, and the witnesses were all in the same room when giving evidence and to avoid collusion were directed by the Commission to sit in full view of the camera and/or behind the witness giving evidence. Nevertheless, the Respondent’s witnesses were allowed to listen to each other’s evidence. Additionally, the Commission had to direct the Respondent’s representative to refrain from giving evidence. No reference was made in the Decision as to the credit or conduct of the Respondent’s witnesses during the hearing or otherwise.
There was no evidence before the Deputy President that any of the witnesses for the Respondent were induced, threatened or intimidated by anyone into giving false or misleading evidence. The Appellant was represented by a lawyer throughout the proceedings at first instance and there was no objection made in the course of the video hearing as to how the hearing was conducted by the Deputy President. There was no objection to the statements being tendered into evidence. The witnesses for the Respondent indicated they were assisted in the preparation of the statements. Given that English was not their first language it is unsurprising that they had assistance preparing statements. There is no basis for such allegations.
It is apparent from the transcript that in the course of the hearing a number of difficulties were encountered, including video screens freezing at different times. The Deputy President took appropriate steps in the course of the hearing, including stopping the Respondent from attempting to lead evidence from the bar table, and stopping Ms Bui from seeking to interject in the course of Ms Vu’s evidence, and directing Ms Vu to seek assistance from the interpreter if she did not understand a question, and directing Ms Bui to sit in a position in proximity to the camera where the Deputy President could see her. We do not accept appeal ground six establishes a basis for an appealable error of law.
Appeal ground 7 submits that the Deputy President made an error of law in that the Deputy President was on notice that immediately after the Appellant filed and served her witness statements two of her witnesses were approached at their homes and threatened to withdraw their statements and directed to not give evidence, and consequently, these witnesses withdrew their statements and one obtained a medical certificate so as to be excused from giving evidence to the Commission.
The transcript records at paragraph number 13 and paragraph number 636 a brief submission was made by the Appellants representative making the claim. No evidence was led to support the claim. There was no evidence concerning the claim that the Deputy President could have had regard to. This is no error on the basis of appeal ground 7, and accordingly, we reject it.
Appeal ground 8 maintains the Deputy President made an error of law as she failed to consider case law that supported the Appellant case. We disagree, and repeat our conclusion set out above in relation to Appeal ground 1, that the Deputy President determined the question as to whether the Respondent had reasonable grounds to hold the belief that it did in an orthodox way, and in a manner consistent with existing authorities.
Ground 9 is in substance a restatement of matters already addressed above and does not identify any error of fact in the Decision at first instance.
In relation to Ground 10 the Appellant further submits that the Decision was unjust and counter-intuitive, and therefore the appeal was in the public interest. The Appellant submitted:
(a)there were no reasonable grounds to form the belief that the Appellant stole cash on 3 September 2022;
(b)that the Decision did not consider the probability the cash may have been taken by another person;
(c)was not supported by a proper investigation;
(d)The Respondent’s conduct was unfair and prejudicial towards the Appellant and was not taken into consideration by the Commission; and
(e)The Commission’s decision was unjust not only because the Appellant did not engage in the alleged misconduct, but also because theft is a serious allegation which can have devastating consequences for an employee against whom such an allegation is levelled.
In regard to the merits of the appeal, the Appellant submits that the Decision was based on a significant error of fact, being an error in the identification of reasonable grounds, and therefore, an error in the decision-making process. For reasons set out above we have not identified any error in the Decision.
The Appellant submits that in exercising its discretion, the Commission erred by failing to consider material considerations and evidence including that there no evidence that any money had been stolen; the policy behind the special treatment of small businesses which underpins the Code, was not intended to provide small businesses a ‘get out of goal free’ card; and that the Respondent did not hold a genuine belief that the belief that the Applicant’s conduct was sufficiently serious to justify immediate dismissal as they continued to employ the Appellant for an entire shift on 4 September 2022 before terminating her employment.
We have already dealt with the first two points above and rejected them. The fact of the Appellant completing a shift on the 4 September was addressed in the evidence at first instance where it was said for the Respondent that the Respondent wanted to provide the Appellant an opportunity to come forward herself. We do not accept that the Appellant completing her shift on 4 December demonstrates that the Deputy President’s conclusion that the Respondent believed on reasonable grounds that the Appellant’s conduct was sufficiently serious to justify immediate dismissal, was an error.
Public interest
Having considered the Appellant’s submissions and all the materials filed on appeal, for the reasons set out above we are not satisfied that there is an arguable case of error. It is clear that the basis on which the Deputy President reached her Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before her, and made findings of fact based on the evidence before her. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s 400(1) that:
· There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
· The appeal raises issues of importance and/or general application;
· The Decision at first instance manifests an injustice, or the result is counter intuitive; or
· The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
Permission to appeal is refused, and the appeal is dismissed.
VICE PRESIDENT
Appearances:
Matter determined on the papers.
Final written submissions:
2 March 2023, for the Appellant.
2 March 2023, for the Respondent.
[1] (2010) 197 IR 266.
[2] (2010) 197 IR 266 at [27].
[3] Wan v AIRC (2001) 116 FCR 481 at [30].
[4] [2022] FWC 3322 at [38].
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