Vera Kezic v Brand Developers (Aus) Pty Ltd

[2019] FWC 7889

[2019] FWC 7889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vera Kezic
v
Brand Developers (Aus) Pty Ltd
(U2019/6000)

COMMISSIONER GREGORY MELBOURNE, 22 NOVEMBER 2019

Application for an unfair dismissal remedy.

Introduction

[1] Ms Vera Kezic was first employed by Brand Developers (Aus) Pty Ltd (Brand Developers) in October 2011 and worked as a Storeperson at its warehouse in Truganina. However, she was dismissed from her employment on 20 May 2019 on grounds of serious misconduct. She subsequently lodged an unfair dismissal application and this decision deals with that application.

[2] Ms Kezic’s daughter, Ms Antonia Italo, appeared on behalf of Ms Kezic. Mr Angel Aleksov of Counsel was given permission to appear on behalf of Brand Developers under s.596(2)(a) of the Fair Work Act 2009 (Cth) (the Act) as the matter involved a degree of complexity and his involvement might enable it to be dealt with more efficiently.

The Issue to be Determined

[3] Section 385 of theActprovides that a person has been unfairly dismissed if the Commission is satisfied “the dismissal was harsh, unjust or unreasonable.” Section 387 continues to provide that the Commission must take into account the following considerations in determining whether a dismissal was harsh, unjust or unreasonable. It states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.” 1

[4] The Commission is therefore now required to determine whether Ms Kezic’s dismissal was “harsh, unjust or unreasonable” taking into account the matters set out in s.387.

The Applicant’s Evidence and Submissions

Ms Vera Kezic

[5] Ms Kezic has worked for Brand Developers as a Storeperson since October 2011. At the time she was dismissed she was receiving an hourly rate of $20.72 and estimated that her earnings in the past twelve months were $46,278.48. However, she was dismissed from her employment on 20 May 2019 on grounds of serious misconduct. It was alleged that she deliberately disregarded a batch pick slip and proceeded to pick the wrong product.

[6] In her role as a Storeperson Ms Kezic was required to collect a pick slip with a batch number, product name and location on it. She was then required to go to that location, collect the item, and deliver the pallet to the machine packing location. Two other employees are then involved in the checking process to ensure the correct item has been picked.

[7] Prior to the day of the alleged incident Ms Kezic stated that the environment in the warehouse was becoming increasingly hostile, due to some tension and animosity that existed between some staff members. She tried to address these issues with her Supervisor, but was told to ignore what was occurring and get on with her job. However, she felt very uncomfortable and anxious in this environment.

[8] On the day of the alleged incident she went to location BD following the pick slip instructions to pick the product listed as smokeless grill. She was required to pick 26 of these units, as well as 26 units of another product. However, there were only two units at the pick location and she therefore instructed a forklift driver to collect a full pallet from the storage area, while she took the pallet with the two units to the bin location. The forklift driver then delivered the full pallet and Ms Kezic placed the two additional items on top of the pallet, meaning the required number of 26 smokeless grill products had been delivered.

[9] The second item on the picking slip required Ms Kezic to go to another area, which she did and then selected the required items to complete the total picking order, which were now contained on one pallet. She then took the pallet to the machine packing location to enable the other team members to check, pack and dispatch the order. She then moved to pick her next order. However, as she was doing this she observed one staff member move the pallet she had previously picked to another location. She was unsure why this was done, but because she had told by her Supervisor to ignore what was going on elsewhere, and get on with her job, she decided not to say anything.

[10] On 27 April the Warehouse Manager, Mr David Cutter, told the employees that a batch number had been picked and packed incorrectly, and they were shown the relevant batch invoice. On 1 May Ms Kezic was asked to attend a meeting with Mr Carter and a representative from the HR Department. He referred to the batch invoice and asked why Ms Kezic had picked 26 air fry ovens, instead of the smokeless grill products. Ms Kezic explained what had occurred and stated that she had picked the right product, and this could be checked by reference to the CCTV footage.

[11] She was then asked to attend a further meeting on 10 May when she was told the footage had been checked and it confirmed she had picked the wrong products. It was also indicated that there had been no air fryer product batch numbers printed on that day, and it was not clear how a mistake could have occurred. Ms Kezic became very distraught and emotional as she was repeatedly asked how the mistake could have happened. She indicated in response that she did not know and was sorry if an error had occurred. She also made reference to a similar incident that occurred previously, but was told that this involved a different situation. She then left work because she was not feeling well, and after visiting her G.P. received a medical certificate which indicated that she would not be at work for the remainder of the week on medical grounds.

[12] On 20 May she was asked to attend a meeting with the General Manager, Mr Joppu Varghese, and Mr Carter. He commenced to read from a letter that had been prepared prior to the meeting, which indicated that her employment was to be terminated with immediate effect on grounds of serious misconduct.

[13] Ms Kezic continued to state that she had never been advised about any performance issues during the time she had been employed by Brand Developers. She was also not provided with the opportunity to review the CCTV footage, and did not believe that a thorough investigation into the incident had been carried out. There were also several people involved, but she appeared to have been singled out. She also did not consider that a single isolated incident justified her employment being terminated, and if the business believed she had acted inappropriately a written warning would have been a more appropriate response.

[14] Ms Kezic stated in conclusion that she believed it would be difficult for her to return to work at Brand Developers, given the stress she had been placed her under as a consequence of this incident. She was therefore not seeking to be reinstated, but was instead seeking compensation as a consequence of what had occurred. She also denied in cross-examination that she had previously received a written warning in regard to her behaviour.

The Applicant’s Submissions

[15] Ms Kezic had worked at Brand Developers for a considerable period of time and submitted that she would never do a deliberate act that would put her employment in jeopardy. She was only five years away from reaching retirement age, and was looking forward to continuing to work until such time as she retired. She was also not the only person that could have been responsible for what occurred, as there was a team of four people involved in the checking process.

[16] It was also confirmed in response to a question from the Commission that Ms Kezic submits that she did not pick the wrong order but somehow the process led to the wrong order ultimately being dispatched. It was also submitted, in conclusion, that if she had been at fault then her behaviour might have warranted a warning or other similar response, but it did not constitute serious misconduct justifying her summary dismissal.

The Respondent’s Submissions and Evidence

Mr David Carter

[17] Mr Carter is the Warehouse Manager at Brand Developers’ Distribution Centre in Truganina. On 22 September 2016 he was informed by Ms Kezic’s Team Leader that she had not followed instructions, displayed a negative attitude, and disturbed other employees. The Team Leader recommended she be given a written warning. The incident was investigated and it was concluded that Ms Kezic had refused to follow the Team Leader’s instructions. However, it was decided not to issue her with a written warning, but it was made clear that any further behavioural issues would not be tolerated.

[18] On 13 October 2017 Ms Kezic again met with her Team Leader and the Operations Manager to discuss an incident in which she had allegedly directed abuse at another employee. She indicated, in response, that she could not recall the incident, however, “after careful consideration of the facts and the various explanations” it was decided to issue her with a written warning, noting that this was not the first occasion on which her behaviour had been called into question.

[19] On 15 April 2019 Brand Developers received a number of complaints from customers, who had received the air roaster oven and not the smokeless grill they had ordered. A series of meetings were organised with employees from the picking and packing team who were working on the day and may have been involved . However, Ms Kezic left work early on that day because she was unwell, and the business was unable to meet with her.

[20] She returned to work on 1 May and a meeting was again organised to discuss the incident. During the course of that meeting she indicated that the error could have been caused because a separate batch order for the air fryer oven was also being picked at the same time, and the two batches could have been mixed up at the packing stage.

[21] A further investigation into all stages of the batch picking, packing and dispatching process was then carried out, and it became apparent that the correct processes for picking and packing had not been followed. It appeared that the wrong product had been picked from a completely different area of the Warehouse and had not been properly checked. It also appeared that the particular batch in question only had two products to pick, and both of these were in the fast-moving bin locations. The batches were also checked and there were none in the relevant period that specified the air fryer oven as the product that needed to be picked, and it was not possible to find any evidence of the two batches being mixed up at the packing stage, as suggested by Ms Kezic. Mr Carter also viewed the security camera footage taken at the relevant time and it confirmed that Ms Kezic was the team member who had picked the incorrect batch. He was also able to confirm from the footage that Ms Kezic was not in the faster moving location, but instead went to the bulk products area, and instructed a forklift driver to lower a stacked pallet that contained the air fryer ovens. The footage also depicted Ms Kezic moving the pallet from the bulk products area to the packing area for dispatch. It was also clear from the batch in question that the products that needed to be picked were both located in the fast-moving bin location, and there were no products in the batch that needed to be picked from any other location in the Warehouse.

[22] On 8 May a letter was sent to Ms Kezic asking her to attend a meeting on 10 May to discuss the incident. The letter set out the allegations in the following terms:

“On Monday 15th April between 6.45am - 9.15am there was a batch pick for the Smokeless Grill and Copper Pro 360 Pan that was mis-picked, mis-packed, not properly checked against individual customer invoices, and subsequently packed, wrapped and dispatched to customers. Specifically that you were handling the initial picking of the batch orders from the DRTV fast moving bin locations. Further to this the stock that was picked by the Air Fryer Oven was mis-picked from a separate area (Bulk DRTV) that is located in a separate area of the warehouse. This has resulted in 26 customers receiving the Air Fryer Oven and Copper Pro 360 Pan and has resulted in Brand Developers having to get the wrong orders returned and corrected.”

The letter continued to state that she was welcome to bring a support person or representative to the meeting, and that a potential outcome could be the termination of her employment.

[23] Ms Kezic was then provided with the opportunity to explain how and why the batch was picked, and why she had gone to an area she was not meant to be in, given the nature of this particular batch. She was not able to recall and confirmed that she understood the correct process for picking an order. Mr Carter considered that Ms Kezic was not providing honest responses, and it appeared she was not prepared to take responsibility for her actions. She instead attempted to blame others for what had occurred. She was advised at the conclusion of the meeting that she would be provided with an outcome from the investigation in the following week.

[24] Mr Carter then discussed the situation with the General Manager and the HR Manager and it was decided as a consequence of the investigation, and Ms Kezic’s input into that process, that her employment would be terminated on grounds of serious misconduct. However, after the 10 May meeting she took an extended period of personal leave and did not return to work until 20 May 2019. Mr Carter then met with her and gave her the termination letter, which was headed “Serious Misconduct Investigation.” It detailed the investigation process that had been undertaken, and indicated that her employment was terminated with immediate effect.

[25] He also indicated in cross-examination that the checking process did not take place as it should have after the product had been picked by Ms Kezic. There were four people involved from the picking to the dispatching process. The person who was primarily responsible for checking was an agency casual who had been let go. The other person, who was partially responsible for checking when the stock was put on the belt, was interviewed and accepted some responsibility for what occurred, and was given a final warning. The other person was found to have not been at fault.

[26] Mr Carter also indicated that the CCTV footage had not been shown to Ms Kezic, but she had not asked to see it. It confirmed who was involved in the incident, and where the stock that was picked was located.

Ms Sally Palmer

[27] Ms Sally Palmer is a Business Developments HR Manager and is based in Auckland. Mr Carter informed her about what had occurred on 15 April, and about the complaints from customers who received the wrong products.

[28] On 1 May Ms Palmer was informed by Mr Carter that he had met with another employee who was responsible for putting the stock on the belt to be shrink-wrapped with an invoice. He had apologised for what had occurred, and was provided with a final written warning in relation to his conduct.

[29] On 14 May Ms Palmer was involved in a teleconference with the General Manager, Mr Andrew Bailey, and Mr Carter to review the 15 April incident. It was concluded that the investigation had found that Ms Kezic had deliberately picked an entire batch of orders with the wrong products, which were then sent to the 26 customers. She had also ignored the bin locations specified on the pick list and deliberately gone to a completely different area of the Warehouse. She then instructed a forklift driver to lower a pallet that was clearly labelled with a different product to those on the pick list, and she had accordingly missed numerous opportunities to identify the incorrect products. She was also vague and evasive during the subsequent investigation and took no responsibility for what had occurred, attempting instead to direct the blame elsewhere. It was accordingly decided that her employment should be terminated on grounds of serious misconduct.

[30] The termination letter given to Ms Kezic is dated 14 May, although it was not given to her until 20 May, being the date that she returned to work after taking the period of personal leave. It stated:

“At our meeting Friday 10 May 2019 we raised with you the allegations that on 15 April 2019 a batch pick for the Smokeless Grill and Copper Pro 360 Pan was mis-picked, mis-packed, not properly checked against individual customer invoices, and subsequently pack ed, wrapped and dispatched to customers. This resulted in 26 customers receiving the Air Roaster Oven instead of the Smokeless Grill.

We provided you with an opportunity to explain how and why this batch was mis-picked to which you said you could not recall. You confirmed you understand the process for picking an order is to check the batch and to pick the listed products from their corresponding locations as listed on the batch and that you are to go to the area listed on the batch and pick the quantities needed.

During an initial meeting with you on Wednesday 1st May you informed us that you were not sure of the information and that the error could actually be because a separate batch order for the Air Fryer Oven was also being picked at the same time. You claimed that the two batches were mixed up at the packing stage.

Brand Developers provides the latest and greatest products to customers throughout Australia. In order to achieve this we must ensure that the product the customer has purchased is what they receive. The key requirement of our DRTV picking and packing team is the accurate picking and packing of customer orders for every single order. This is emphasized regularly through team talks, and through a process whereby orders are batched to make the accurate picking easier, the batches have clear locations and information to make it clear the products that are required, and every single customer order has at least two team members checking the products match to the individual customer's invoice. The aim of this process is to ensure picking errors do not happen and there are multiple team members checking so if an accidental mis-pick does occur it is picked up before the order is dispatched.

I have investigated the batch pick, packing, and dispatching of the 26 customers who received the Air Fryer Oven instead of a Smokeless Grill. From this investigation it has become apparent that Brand Developers processes for picking, and packing have not been adhered to. The wrong product has been mis-picked, from the wrong area, and not been properly checked against the product SKU. The particular batch in question only had two products t-o pick and both of these were in the DRTV fast moving bin locations.

I have identified from the supporting order completion information and the security camera footage for Monday 15th April that you were the team member who was picking the batch for the customer orders in question.

I have checked the batches from Monday 15th April and there were no batches during the period of time in question that had the Air Fryer Oven as a product that needed to be picked for dispatch. I could not find any evidence of two batches being mixed up at the packing stage as claimed by you during our meeting on Wednesday 1st May.

The core task of a picker in the DRTV team is to ensure they pick the correct products according to the batch pick list. The batch pick list is set out with not only the product and quantity, but also the exact location the product is to be picked from, and the SKU for each product. From the batch in quest ion the two products that needed to be picked were both located in the DRTV fast moving bin locations, which are all located in aisles A-E in the warehouse. There were no products in the batch needing to be picked from any other warehouse location.

From the security camera footage I have noted that you were not in the DRTV fast moving location at the time you mis-picked the Air Fryer Oven. It can be seen that you have instead gone to the DRTV bulk products in the floor area, and further appears you instruct a forklift driver to lower a stacked pallet from this location that has the Air Fryer Oven. The pallet is still wrapped and has a pallet label on the outer that would specify the product SKU and description. I can see you move this pallet from the bulk location to the packing area for dispatch of the customer orders.

The action of completely ignoring the pick sheet, going to a physical area you were not meant to be in for this batch, and instructing the forklift driver to lower a pallet are more than just accidentally mis-picking a product. There has been no explanation from you as to why you went to the wrong area or what steps you were taking when picking this batch that could explain in any way how you have ended up in the bulk area. For these reasons this appears to be deliberate action to completely disregard the picking process and picked the wrong product.

The differences between the correct product, the Smokeless Grill, and the mis-picked product, the Air Fryer Oven, are significant. The boxes are different in shape, size, weight, have different SKU codes, and the description printed on the outside of the boxes is different. The pallet you moved to the packing area had a pallet label on the outside that indicated it was the Air Fryer Oven. There were multiple opportunities for you to be able to identify it was the wrong product and you have the experience in the process to be able to identify products when picking.

As a result of this deliberate action is 26 customers received the wrong product. The first notification Brand Developers received of this issue was from the customers calling to complain they had received the wrong product. Aside from the cost Brand Developers has incurred to get the Air Fryer Ovens returned and the correct Smokeless Grills out, we have had damage to our reputation as these customers cannot trust Brand Developers to deliver the product they paid for.

I have considered all the information provided and there are no extenuating circumstances. In addition, you have failed to be honest with us or take responsibility for your actions and instead attempted to blame first the packers, then a mix-up of batches. Your lack of integrity and honesty displayed towards us further undermined our trust and confidence in our employment relationship. Your deliberate action of disregarding the batch pick slip is significant and we are satisfied that the resulting damage to Brand Developer's reputation constitutes Serious Misconduct under your employment agreement, warranting summary dismissal. Effective immediately we are terminating your employment with Brand Developers for serious misconduct.”

The Respondent’s Submissions

[31] Brand Developers submits that it had a valid reason to dismiss Ms Kezic, given the serious misconduct that occurred. The correct stock was sitting immediately above the empty pallet, however, Ms Kezic had gone to a completely different area of the Warehouse and asked a forklift driver to select the wrong stock, and to then transfer it to a different part of the warehouse. The suggestion by Ms Kezic that two batch orders had been mixed up on that day could not be substantiated, as there were no other batch orders for the other product at the time. It was difficult to conclude that this was anything other than a deliberate act.

[32] It also submits that in the process of investigation Ms Kezic was evasive and not prepared to take responsibility for what occurred. She instead sought to place the responsibility on others and did not participate constructively in the investigation process. It was a major breach of procedure and caused serious brand damage to Brand Developers, given that 26 of its customers received the wrong product, and it had to be replaced.

[33] It had also considered imposing a lesser disciplinary outcome, but given what occurred and Ms Kezic’s subsequent attitude and approach during the investigation, it was decided that termination of her employment on grounds of serious misconduct was the appropriate response.

Consideration

[34] The circumstances in which an employee’s dismissal can be considered to be “harsh, unjust or unreasonable” have been considered in a number of previous decisions. The decision in Byrne v Australian Airlines Ltd 2 is often cited in this context. The joint judgement of McHugh and Gummow JJ concluded:

“...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 3

[35] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 4 also provides guidance about the Commission’s role in regard to each of the matters in s.387 that must be taken into account in determining whether an employee’s dismissal was “harsh unjust or unreasonable.” The Full Bench concluded:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 5

[36] I turn now to deal with each of the considerations in s.387, and those authorities that I consider relevant to the determination of this matter.

(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)

[37] Before coming to the particular circumstances involved in this matter it is noted again that previous decisions have had regard to what is required in order to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 6 is often referred to in this context. His Honour came to the following conclusions:

“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.

Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’

In its context in subsection 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 7

[38] In Parmalat Food Products Pty Ltd v Wililo 8 the Full Bench also concluded that:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 9

[39] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 10 (Australian Postal Corporation) also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:

“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission Is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 11

[40] It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the Employer believed it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi 12 when it stated:

“…the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 13

[41] These authorities make clear that the existence of a “valid reason” is often the most important consideration of the matters in s.387 that the Commission must have regard to. It is also clear that a “valid reason” must be one that is “sound defensible and well founded” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well. I have sought to adopt the approach of these authorities in coming to a decision in this matter.

[42] It has also been made clear that in dealing with an unfair dismissal claim the Commission does not stand in the shoes of the employer and decide whether the employer’s decision was the same one that would have been made by the Commission. Its role is instead to determine whether on the basis of the available evidence the circumstances can be said to justify the decision to terminate the employee’s employment. I have sought to adopt the approach of these authorities in coming to a decision in this matter.

[43] The circumstances involved have been set out in some detail already and are not restated now. After reviewing the available evidence I am satisfied that Ms Kezic was primarily responsible for the fact that the wrong products were dispatched to 26 of Brand Developer’s customers. I am also satisfied that the available evidence, including the CCTV footage, makes clear that she went to an area of the Warehouse that she did not need to be in to complete the order she was picking at the time. She also asked a forklift driver to move a pallet to the dispatch area, despite the fact that the products that matched with the batch order were in their normal location, and should have been picked from that location. I am also satisfied that Ms Kezic has not provided a credible explanation for her behaviour at any point, and has instead attempted to blame others when clearly she was principally at fault.

[44] However, it is clear that three other employees were also involved to a greater or lesser extent. One of those employees, being an agency supplied employee, is no longer being called upon by Brand Developers and another, who acknowledged some fault on his part and apologised, was provided with a written warning. The other employee was found not to have been at fault.

[45] It is also noted that Brand Developers has stated that the CCTV footage provides confirmation of who the employees were, and makes clear that it was Ms Kezic who went to a part of the Warehouse that she was not required to be in. She was not shown the CCTV footage, prior to being terminated, but did not ask to see it. However, it was shown to her during the course of the proceedings, and she did not seek to take issue with what was depicted in the footage.

[46] Ms Kezic has also continued to deny responsibility for what occurred, despite what the investigation revealed, and has instead attempted to place the blame on others. Her actions in this context can be contrasted with the other employee, who acknowledged that he was at fault in not identifying that the wrong products had been picked, prior to the order being dispatched. However, he did acknowledge that he was at fault and apologised. He was also given a final written warning. His response can be contrasted with that of Ms Kezic.

[47] Ms Kezic also submits that if she is found to be at fault then a lesser disciplinary outcome was warranted, particularly given her length of service and her unblemished work record. However, Brand Developers submits in response that given the nature of its business it is of paramount importance that customers receive what they have purchased. This is repeatedly emphasised in its’ team talks with employees. Ms Kezic’s actions lead to 26 customers receiving the wrong product and caused it reputational damage. It also submits that her actions in going to a different part of the Warehouse from where she needed to be suggested deliberate intent rather than innocent inadvertence on her part.

[48] I have not come to any conclusion about why Ms Kezic acted in the way she did. I also accept that Brand Developers could have decided to impose a different outcome on her. However, as indicated previously the authorities have made clear that the Commission does not stand in the shoes of the employer when evaluating the circumstances involved in an unfair dismissal application. I am satisfied, in response, that in all the circumstances Brand Developers can be said to have had a valid reason to dismiss Ms Kezic on grounds of serious misconduct in the sense that the reason was sound, defensible, and well founded. I refer, in particular, to the significant nature of what occurred and her failure to provide a credible explanation for why it occurred.

(b) whether the person was notified of that reason.

[49] Ms Kezic was notified of the reason for her dismissal in the meeting that took place on 20 May when a copy of the termination letter was read to her. She had also been put on notice in prior correspondence about the nature of the allegations and of the fact that one possible outcome could be the termination of her employment.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[50] I am satisfied that Ms Kezic was given various opportunities to respond to the allegations made about her.

(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

[51] There is no evidence of any unreasonable refusal by Brand Developers to allow Ms Kezic to have a support person present in any discussions relating to her dismissal. The correspondence dated 8 May indicated that she was entitled to have a support person or representative in the meeting, although she did not take up this offer, either at that meeting or at the meeting that followed on 20 May.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[52] This consideration is not relevant in the context of this matter as Ms Kezic was not dismissed on grounds of unsatisfactory performance.

(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

(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

[53] I am satisfied that it is appropriate to deal with both of the above matters together. Brand Developers is clearly a relatively large employer and can be expected to be aware of the appropriate procedures to be followed in dealing with disciplinary matters, including the termination of an employee’s employment.

(h) any other matters that the FWC considers relevant

[54] Ms Kezic is clearly upset by what has occurred and indicated that it has caused her significant anxiety and emotional upset, as well as impacting on her financially. She had been employed for a period of more than seven years, which is a reasonably long period of employment, and had hoped to continue in her employment until she retired in around five years time. These circumstances are clearly unfortunate, but at the same time they are regrettably often encountered in circumstances involving termination of an employee’s employment.

Conclusion

[55] I have had regard to all of the submissions and evidence provided in this matter, and the various considerations in s.387 that the Commission is required to take into account. I am not satisfied, in conclusion, that Ms Kezic can be said to have been unfairly dismissed in the sense that her dismissal was harsh, unjust or unreasonable. In coming to this decision, I have had particular regard to the conclusions reached in regard to the issue of “valid reason.” It follows from this decision that Ms Kezic’s application must be dismissed. An order giving effect to this decision is now separately issued.

COMMISSIONER

Appearances:

A Italo for the Applicant.

A Aleksov of Counsel for the Respondent.

Hearing details:

2019.

Melbourne:

September 23.

Printed by authority of the Commonwealth Government Printer

<PR714420>

 1   Fair Work Act 2009 (Cth) s.387.

 2 (1995) 185 CLR 410.

 3 Ibid at [450].

 4   [2011] FWAFB 7498.

 5 Ibid at [20].

 6 (1995) 62 IR 371.

 7   Ibid, 373.

 8   [2011] FWAFB 1166.

 9 Ibid at [24].

 10   [2013] FWCFB 6191.

 11 Ibid at [58].

 12   Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).

 13 Ibid at [19].