Vimal Punitam v The Salvation Army South Australia Property Trust T/A Salvos Stores

[2014] FWC 4929

[2014] FWC 4929

FAIR WORK COMMISSION

DECISION

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

Vimal Punitam
v
The Salvation Army South Australia Property Trust T/A Salvos Stores
(U2014/955)

DEPUTY PRESIDENT BARTEL ADELAIDE, 24 JULY 2014

Introduction and background

[1] Ms Vimal Punitam (the applicant) is seeking an unfair dismissal remedy in accordance with s.394 of the Fair Work Act 2009 (the Act). She was dismissed by the Salvation Army South Australia Property Trust T/A Salvos Stores (the employer or the respondent) on 13 March 2014 with five weeks’ pay in lieu of notice on termination.

[2] The applicant had in excess of 15 years’ service with the employer, having commenced employment in August 1998 as a Sales Assistant. She was promoted to Store Manager in 2004 but was subsequently demoted to the position of Sales Assistant as part of disciplinary action implemented in January 2014.

[3] The applicant’s dismissal occurred after the employer found that the applicant breached the relevant Salvos Stores Operating Policy and Procedure (SSOPP) when she:

● failed to secure cash in the safe and failed to advise her Store Manager or the Area Manager that the cash was not secured (“allegation A”) and

● failed to attend her rostered shift on Tuesday 11 March 2014 despite having negotiated to work this day as part of roster arrangements agreed with her Store Manager (“allegation B”)

[4] In taking the decision to dismiss, the employer relied upon a final warning issued to the applicant on 21 January 2014 that related to an investigation into nine allegations against her.

[5] For convenience, the allegations and investigation that resulted in the final warning will be referred to as the “January allegations” and the “January investigation”. The January allegations are detailed shortly. The allegations and investigation relating to the dismissal will be referred to as the “March allegations” and the “March investigation”.

[6] No jurisdictional issues arise with the application. The applicant is a person protected from unfair dismissal and the issue for determination is whether her dismissal was harsh, unjust or unreasonable.

[7] The most significant dispute between the parties relates to the appropriate characterisation of the applicant’s actions and the proportionality of the disciplinary action that was implemented as a result of the January and March investigations.

[8] The applicant was represented by Mr Donald Blairs of the Shop Distributive and Allied Employees Association (the SDA). The respondent was represented by Jarrod Reid, Assistant HR Manager.

In addition to the applicant, Ms Megan McPhee, SDA Organiser gave evidence. 1 Ms McPhee assisted the applicant in relation to the January and March investigations. The respondent called evidence from the following witnesses: 2

Ryan Steele, Area Manager, Northern SA Area. His involvement with the applicant concerned the March allegations;

Linda Sinclair, Store Manager, Aldgate Store. Ms Sinclair’s evidence went to the role of the Store Manager in the context of the respondent’s policies and procedures concerning cash handling and rostering arrangements.

Paul Barron, Driver/Furniture Removalist. Mr Barron’s evidence went to his involvement in an incident at the Findon Store which gave rise to one of the January allegations.

Cary Heritage, Sales Assistant, Findon Store. Mr Heritage made complaints about the applicant’s conduct toward him and which gave rise to three of the January allegations.

Elaine Lebourn, Area Manager, Southern SA Area. Ms LeBourn was the applicant’s Line Manager from January 2011 until the applicant’s demotion and transfer in February 2014. She received several complaints from staff/volunteers working at the Findon Store in December 2013 and January 2014. Ms Lebourn was involved in the January investigation.

William Bernard, Store Manager, Gepps Cross Store. Mr Bernard was the applicant’s Store Manager from early February 2014. His evidence addressed the March allegations.

The January allegations and investigation

[9] A letter from the employer dated 21 January 2014 advised the applicant that she was demoted to Sales Assistant and issued with a final warning. 3 The letter sets out the allegations against the applicant, her response to each allegation as provided at a meeting held on 16 January 2014, and the respondent’s conclusions in respect to each allegation. The applicant was represented by Ms McPhee at the 16 January meeting. None of the information in the letter of 21 January, including the final warning and the demotion, was challenged at the time. Ms McPhee said that she discussed the options available to the applicant with her after she received the letter, and that while the applicant “didn’t necessarily agree” with the warning, she did not instruct the SDA to pursue the matter.4 In examination-in-chief the applicant indicated that she was not aware that she could challenge the warning.5 I prefer the evidence of Ms McPhee as being the more credible scenario and because the applicant’s evidence more generally was unsatisfactory in several respects (which are detailed in the course of the decision).

[10] A summary of the information pertaining to the allegations as set out in the 21 January letter together with and additional evidence presented at the hearing are set out below.

Allegation 1

[11] The allegation is that in late November 2013, the applicant accused a Sales Assistant, GM, of stealing “... by way of gossip, rumour and innuendo”. The applicant discussed her concerns about GM with two other staff members and a volunteer, but not with GM herself.

Applicant’s response: She had reasonable grounds to believe that GM was stealing items from the store. She questioned two Sales Assistants and a volunteer in the Store and mentioned GM by name, but did not raise the matter directly with GM and did not report the matter to her Area Manager.

Finding by employer: The applicant didn’t raise her concerns in an appropriate manner. Her actions were “unreasonable management action” which had the effect of casting aspersions, degrading or deriding GM to her colleagues. The applicant’s actions constitute a form of bullying under the SSOPP.

Additional evidence: The applicant’s discussions with other staff members were “in confidence” and one of these staff members divulged the applicant’s suspicions to GM. The applicant acknowledged that she was aware that she could request the installation of a surveillance camera.

In explaining why she did not refer the matter to her Area Manager, the applicant vacillated between not having sufficient evidence to warrant referring the matter to Ms Lebourn and not having time to do so before the disciplinary action was implemented. The applicant said that she had planned to raise the surveillance camera with Ms Lebourn. 6

Allegation 2

[12] The allegation is that in late November or early December 2013the applicant failed to render assistance to an elderly lady who had fallen in the Store while attempting to sit on her walker.

Applicant’s response: The applicant considered that other staff members were able to deal adequately with the situation. She conceded that she should have rendered assistance and completed an incident report.

Finding by employer: The applicant failed to report the incident in accordance with the SSOPP and breached her duty of care to the customer and her responsibilities as Store Manager.

Additional evidence: The applicant gave inconsistent evidence of her initial reaction after she was made aware that the customer had fallen. Her witness statement indicates that she “proceeded immediately out on to the shop floor.” Her oral evidence was that she walked to the back of the Store, from where she observed other staff members in attendance. Ms McPhee’s notes of the meeting on 16 January indicate that the applicant said she went to render assistance but was brushed away by the customer’s carer. 7

Allegation 3

[13] This allegation is that in late November or early December 2013,the applicant made contact with a child who was running in the Store causing her to fall.

Applicant’s response: She denied making contact with the child, but accepted that she may have startled the child when she raised her voice and said “Stop”. The applicant later remarked to a Sales Assistant that she should not have remonstrated with the child and should have spoken to the child’s parents. She did not report the incident.

Finding by employer: The allegation is partially substantiated. The employer accepted that no contact was made with the child but the applicant’s actions in telling the child to “Stop” in a loud voice contributed to the child falling. The applicant failed to report the incident and breached her responsibilities as Store Manager.

Additional evidence: The applicant maintained that she was not aware that she had to complete an incident report in circumstances where a child tripped and no injury occurred. 8

Allegations 4 and 5

[14] These allegations were not substantiated and were not taken into account in the disciplinary action taken against the applicant in January or in the decision to dismiss in March.

Allegation 6

[15] The allegation is that on 20 November 2013, the applicant made certain comments, as set out below, to Sales Assistant, Cary Heritage, after he advised her that he needed to go home because his wife was unwell:

● That Mr Heritage’s wife can’t cope now with three children, how will she cope with four;

● Mr Heritage should be worried how he looks as an employee, in terms of reliability, being absent ‘all the time’;

● She would have to stand on her injured foot for an extra 30 minutes to cover his absence.

Applicant’s response: The applicant said she allowed Mr Heritage to leave the Store as soon as he made the request. She said that the following day she had a discussion with him in which the comments were made by her, however this was done in a supportive way and she referred Mr Heritage to the employer’s Employee Assistance Program. The applicant indicated that Mr Heritage was unreceptive to her comments and walked away so she followed him to continue the conversation.

Finding by employer: The allegations are substantiated. The applicant’s actions constitute a form of harassment as defined by the SSOPP.

Allegation 7

[16] That in late November or early December 2013the applicant made statements to Mr Heritage concerning his personal circumstances which had the effect of belittling, degrading and embarrassing him by:

● Asking if he would apply for a vacancy at the Windsor Gardens store, stating that he should because it is closer to his home;

● Asking why he relied on public transport rather than driving a motor vehicle;

● Stating that you do not know how he could raise three kids on $700 per week;

● Informing him he is not suited to this (presumed to mean working at Findon).

Applicant’s response: The applicant acknowledged the first three comments attributed to her but stated that they were not meant to belittle or embarrass Mr Heritage. She said she was aware that Mr Heritage travelled a long distance to get to work and would prefer to work closer to home. She believed Mr Heritage was comfortable discussing personal issues as they had personal conversations in the past. The applicant denied questioning Mr Heritage about his suitability to the Store and stated that she thinks highly of him.

Finding by employer: The allegations are substantiated. The applicant’s actions constitute a form of harassment as defined by the SSOPP.

Additional evidence on allegations 6 and 7: The applicant stated that she often had personal discussions with Mr Heritage and that he had divulged details of his personal life, as had she. The applicant related many personal details relating to Mr Heritage’s background and his relationship with his partner to corroborate the nature of the relationship between them. She stated that she was unaware that he felt uncomfortable as he had never raised this with her.

Allegation 8

[17] The allegation is that on 14 January 2014, the applicant, apparently dissatisfied at Mr Heritage’s electrical testing machine being left unattended, hid it and left him to worry where it had gone in an attempt to make him panic and ‘teach him a lesson’.

Applicant’s response: She had raised the issue of the testing machine being left unattended with Mr Heritage previously, to no avail. She acknowledged that she moved the testing machine to teach him a lesson and remarked to a Sales Assistant at the time that it might make him panic.

Finding by employer: The allegations are substantiated. The applicant’s actions constitute a form of harassment as defined by the SSOPP.

Additional evidence: The applicant believes that her action in moving the testing machine was appropriate because it worked, where previous discussions with Mr Heritage had not. It was the applicant’s view that her action was preferred to the alternative of implementing disciplinary action.

Allegation 9

[18] The allegation is that the applicant took annual leave over Christmas 2013 without the approval of her Manager and/or sought approval in a manner contrary to previous direction.

Applicant’s response: The applicant said that she applied for leave and when she did not receive any response she assumed that it had been approved, as this had happened in the past. In hindsight, she said this was not a safe assumption given the practice that had been adopted more recently. The applicant said she was not present at a meeting of Store Managers where leave arrangements over Christmas 2013 were discussed, and did not read the minutes emailed to her. She had arranged appropriate coverage for the Store in her absence on leave.

Finding by employer: The allegation is substantiated. The applicant’s action constitutes a breach of the SSOPP.

Additional evidence: A copy of the amended leave form the applicant said she submitted to administration shows that she signed as the person applying for the leave and also as the Manager approving the leave on 16 December 2013. She also wrote on the Form “Approved by Elaine”. 9 This is a reference to Elaine Lebourn, the applicant’s Line Manager at the time. The applicant then submitted the form to administration for processing.

The respondent led evidence that the applicant had completed a leave form as both the employee applying for the leave and the Manager approving the leave, in May 2013. Ms Lebourn stated that at this time, she advised the applicant not to approve her own leave and that she could only submit her leave form to administration once it had been approved by her.

Ms Lebourn stated that she could find no evidence of an annual leave form having been submitted by the applicant for approval. As a result, the employer was unaware that the applicant would be absent from the Store until she failed to attend and enquiries were made.

Outcome of the investigation into the January allegations

[19] The employer’s conclusions on the outcome of the investigation are set out in the 21 January letter as follows:

“You are to be demoted to Sales Assistant.

The organisation strongly considered dismissal in light of the serious nature of your misconduct, and were it not for your 15 years of service to the organisation, this would certainly have been the outcome. All in all, your loyalty over this time period warranted one final chance.

That said, you should consider this process as a final warning in the strongest of terms. Note that continued misconduct or breaches of SSOPP will not be tolerated and will jeopardise your employment with Salvos Stores. To that end, please note that the leniency observed in this instance will not be afforded to you again.

The organisation considered allowing you to manage a smaller store, but in light of your misconduct, does not have faith in your management abilities to enable you to continue as a Store Manager. Our duty of care to all employees and volunteers means we cannot at this time [reference deleted] place you in a role where you are required to manage people.

Demotion to Sales Assistant was therefore the only suitable option.” 10

The March allegations and investigation

[20] The applicant was advised of the March allegations on 12 March at which time she was suspended with pay. She and Ms McPhee of the SDA met with Mr Ryan Steele, the applicant’s Area Manager, and Mr Sean Burgess, Regional Manager SA/NT, on 13 March 2014.

Allegation A

[21] The allegation is that the applicant breached the SSOPP concerning Cash Handling when on 7 March 2014 she failed to secure cash in the safe and failed to advise her Store Manager or the Area Manager that the cash was not secured;

[22] The facts of this issue are not in dispute. The applicant freely admits that she failed to secure the cash in the safe at the end of trading but stated that this was as a result of being unable to open the safe. The applicant was with another Sales Assistant, C, at the time.

[23] The applicant placed the cash ($300) in a money pouch and placed it on top of the safe. She put a note in the Store Manager’s office explaining why the money had not been put in the safe. She locked the Store Manager’s office and locked the door to the room that contained the safe. The applicant set the store’s security alarm, locked the store and left with C.

[24] In her witness statement the applicant conceded that in hindsight she should have reported the matter to her Store Manager or the Area Manager at the point she was unable to secure the money in the safe. Under cross-examination she said that both she and C had other commitments and didn’t have time to wait around for a Manager to arrive. She also indicated that her Store Manager required employees to leave the Store within 15 minutes of it closing. 11

Allegation B

[25] The allegation is that the applicant failed to attend her rostered shift on Tuesday 11 March 2014 despite having negotiated to work this day as part of roster arrangements agreed with her Store Manager.

[26] It was alleged that on 3 March the applicant negotiated with the Store Manager, Mr Bernard, to work all 6 days from Monday 10 March to Saturday 15 March 2014 in exchange for working only 4 days in the previous week. (The allegation notes that 10 March was a public holiday that the applicant was not required to work.)

[27] The applicant stated that her non-attendance was as a result of a misunderstanding and she genuinely believed that she was rostered off work on this day. She said the roster was in the Store Manager’s office which was locked, and that there had been several earlier versions of the roster prepared.

[28] The respondent did not accept this explanation on the basis that the applicant had a key to Mr Bernard’s office to access her roster and the roster showed that she was scheduled to work on 11 March 2014. The respondent concluded that the applicant breached the SSOPP dealing with rostering and timekeeping. 12

[29] The respondent dismissed the applicant at the conclusion of the meeting on 13 March 2014 on the basis that both allegations were substantiated. The termination letter dated 14 March 2014 included the following:

“Both findings represent a breach of SSOPP.

The investigation finds that the training you were scheduled to attend on 24 March 2014 is a neutral consideration, that is, the fact that you had not yet attended that refresher training does not excuse or pardon your actions.

i. Both breaches are fundamental breaches of SSOPP and more generally, the requirements of your position. They are obvious, and you regularly observed them during your long service with Salvos Stores. They are not minor breaches of some obscure policy which you claim to be unaware of, indeed, you demonstrated a solid understanding of rostering and cash handling practices.

ii. It is unlikely that the training scheduled would have furthered your understanding of either the cash handling or rostering requirements. Indeed, given one of the allegations that led to your final warning [reference deleted] surrounded absence without authorisation from your Line Manager, it is reasonable to expect a high level of caution and diligence from you less than two months later.

Investigation Outcome

Given the serious findings against you, as detailed above, significant thought was given as to the disciplinary outcome that should apply to you.

Given the final warning you received [reference deleted] , the fact that warning was in the strongest possible terms, and these findings show a strikingly similar lack of care and diligence, the only appropriate outcome in this instance was considered to be termination of your employment.

We consider that you were fairly warned, and should have understood the importance of following SSOPP.

You were informed of this outcome during the meeting, and Thursday 13 March 2014 is your last day of employment with the organisation.

Given your age and length of service you are entitled to 5 weeks’ notice of termination. Please be advised that the organisation will make appropriate payment in lieu of notice, and you will not serve out your notice period.” 13

The submissions

Applicant’s submissions

[30] Mr Blairs argued that the disciplinary action implemented by the respondent in January 2014 and the dismissal in March 2014 were disproportionate to the conduct of the applicant. In relation to the January allegations, he stated that at worst, the applicant may have been guilty of poor management in the investigation of the suspected theft by GM; a breach of the SSOPP in failing to complete an incident report in relation to the fall by the elderly customer; and inattention to detail in relation to the completion of the leave application form.

[31] Mr Blairs stated that the incident when the child tripped over in the Store was an incident of no consequence, was overstated by the employer and didn’t warrant the completion of an incident report.

[32] It was submitted that in reaching conclusions on allegations 6 and 7 concerning the comments made to Mr Heritage, the employer should have taken relevant circumstances into account, namely, that the applicant and Mr Heritage had a history of personal discussions and at no stage was the applicant made aware that Mr Heritage felt uncomfortable with these exchanges. There was some acknowledgement by Mr Blairs that the applicant’s comments may have been inappropriate.

[33] Similarly, the employer should have taken into account that the applicant’s action in hiding Mr Heritage’s testing machine was as an alternative to issuing him with a warning.

[34] The employer’s conclusions that the applicant was guilty of bullying and harassment were not open to it on the information before it and the final warning and demotion was a disproportionate response. Given the absence of any prior disciplinary action against the applicant, a warning would have been commensurate with the applicant’s actions in relation to the January allegations.

[35] Mr Blairs submitted that the March allegations did not involve a repeat of any matters that the applicant had been warned about and it is open to conclude that the applicant had taken on board the January warning and rectified her behaviour. In these circumstances the respondent was wrong to rely on the final warning in assessing the action to take against her in relation to the March investigation. In addition, Mr Blairs argued that the applicant’s conduct in relation to the March allegations was minor - they did not involve a breach of the SSOPP and her failure to attend work on 11 March was a misunderstanding between herself and her Store Manager.

[36] Mr Blairs argued that the applicant received less favourable treatment than other employees. Employee C, who was also involved in the failure to secure the money in the safe, received a non-compliance notice, which on the evidence is of a lower level than a warning. He also referred to the SSOPP on health and safety, which requires all employees who become aware of an incident to complete an incident report. None of the staff who attended the incident with the elderly lady did so, and none were the subject of any disciplinary action or issued with non-compliance notices.

Respondent’s submissions

[37] Mr Reid submitted that the applicant’s actions, as found in the January investigation, fell into three categories: disregarding policies and procedures (allegations 2 and 9); unintended harassment (allegations 1, 6 and 7); and deliberate harassment (allegation 8). He noted that the applicant did not challenge the warning at the time it was issued. Regardless of whether she agreed with the disciplinary action issued by the employer, the applicant understood the seriousness with which the respondent viewed her actions and that any further misconduct or failings on her part would result in termination of employment. Despite this, the applicant failed to exhibit increased care and diligence in the performance of her work and maintained a “near enough is good enough” approach.

[38] Mr Reid highlighted the inconsistencies in the applicant’s evidence concerning allegations 1 and 2 and noted that she accepted that she should have completed an incident report in relation to allegation 3 in the January investigation but changed her position at the hearing. Similarly, she accepted some wrongdoing on her part in the January investigation in relation to allegation 8, but maintained at the hearing that she had done nothing wrong.

[39] Mr Reid also submitted that:

● The applicant’s response to allegations 6 and 7 show a lack of insight into her actions and a lack of awareness or refusal to acknowledge the difference between personal and professional discussions;

● The applicant’s actions in relation to allegation 9 are at best careless but it is open to the Commission to conclude that she lied about submitting the forms and therefore her belief that the leave was approved;

● The applicant’s actions in relation to the cash handling incident were careless and she understood from her experience that she should have referred the matter to a manager. This was a further example of the applicant’s “near enough is good enough” attitude;

● It is not in dispute that the applicant did not check her roster. On the facts in evidence she could not believe that she was entitled to have 11 March off as a day in lieu.

[40] Mr Reid rejected Mr Blairs’ argument of inconsistent treatment by the employer of the applicant compared to the treatment of other employees. The applicant, as Store Manager, bore an additional responsibility under the SSOPP to render assistance when she became aware that an elderly customer had fallen and to ensure that an incident report was completed. In relation to the cash handling matter there were reasons why C received only a non-compliance notice. She had no prior disciplinary action, she was remorseful for her actions and the applicant had more experience as to the correct actions to take because of her experience.

[41] The employer had a valid reason for dismissal and had afforded procedural fairness to the applicant. The dismissal was not harsh, unjust or unreasonable.

Consideration

Conclusion on the January allegations

[42] It can be reasonably concluded that the applicant did not adhere to administrative procedures of which she should have been aware, such as the proper completion of leave forms and the completion of incident reports, at the least in respect to the fall by the elderly customer.

[43] There also appears to have been a lack of understanding of the boundaries and responsibilities of her position as Store Manager. Under the applicant’s job description 14 her concerns relating to the suspected theft by GM should have been referred to her Manager for advice. On the evidence presented, the applicant’s suspicions were not unreasonably based but she then proceeded to ‘investigate’ her suspicions without any apparent forethought or consideration of the seriousness of the suspected conduct by GM and the importance of a properly conducted investigation. The fact that the applicant’s suspicions were ultimately relayed to GM is hardly surprising given the way the applicant went about her investigation.

[44] The applicant failed to implement the appropriate boundary between her personal and professional relationship with Mr Heritage. She made comments concerning his personal circumstances in front of others and/or in the context of work-related matters that he was required to bring to the applicant’s attention as his Manager. I doubt that the applicant had any intent to cause him to feel humiliated or embarrassed, but at the very least she displayed a lack of sensitivity and awareness of the consequences of her actions.

[45] The issue of the testing machine used by Mr Heritage indicates a concerning lack of awareness of the responsibilities of her role. At the hearing the applicant refused to acknowledge that her actions were inappropriate and considered that ‘the end justified the means’.

[46] The applicant was a long serving employee and clearly there were aspects of her role as Store Manager that she fulfilled appropriately, but her level of experience also makes her transgressions more serious. The findings on the January allegations indicate that the applicant dealt with matters as she saw fit, without sufficient regard to the employer’s requirements or the impact of her actions.

[47] The employer deemed the conduct complained of in allegations 6, 7 and 8 as three separate acts of harassment and that the conduct complained of in allegation 1 constituted bullying. I think this is overstating the situation. The behaviour complained of in allegation 1 did not meet the definition of bullying because it was not “repeated” unreasonable behaviour. I do not regard the applicant’s conduct in relation to allegations 6, 7 and 8 as harassment, either individually or collectively. Had the applicant persisted in dealing with Mr Heritage in an inappropriate manner after the matter was brought to her attention then such action may well constitute harassment. On the basis that there was no malicious intent on the applicant’s part, I think the more appropriate conclusion is that she failed to exercise her supervisory responsibilities in a professional and thoughtful manner.

[48] The demotion of the applicant to Sales Assistant was warranted on the basis of her behaviour in a number of situations. Had it not been for allegation 9, I would tend to the view that the issuing of the final warning was excessive.

[49] In regard to this allegation, I am unable to accept that the applicant’s error was merely administrative in nature or a matter that could be judged inappropriate ‘in hindsight’. The applicant’s evidence about prior discussions with Ms Lebourn was vague 15 and I accept the evidence of Ms Lebourn that she had a discussion with the applicant in May 2013 and that she was aware of the correct process to follow.

[50] The earlier advice is significant. The applicant had been given a reasonable and lawful direction as to the proper completion of the leave form, and whatever the practice had been prior to May 2013, I am satisfied that the applicant was left in no doubt as to the correct procedure to follow from this time. The applicant in fact adopted the correct procedure in applying for leave in September 2013. When the applicant subsequently signed her own leave form as the Manager and then wrote “approved by Elaine” when no such approval had been given, she, at the least, disobeyed the direction she had been given.

[51] The issue as to whether the applicant had in fact submitted the form at all was not raised with her under cross-examination and there is insufficient evidence to reach a conclusion on this matter. I accept that the employer was not aware that the applicant was proceeding on ‘leave’.

[52] While it was open to the employer to implement a lesser penalty arising from the January investigation, the disciplinary action issued to the applicant was open to the employer.

Conclusion on allegation A

[53] The relevant SSOPP states that the cash should be stored in a locked safe at the end of the day. 16 It is unreasonable to charge the applicant with breaching the SSOPP in circumstances where the safe wouldn’t open. The applicant took reasonable steps to secure the money in the circumstances, although leaving a note in the Store Manager’s office was unwise. The failure to advise a Manager of the situation, while not the ideal response, is not a breach of the SSOPP.

[54] I note that Mr Bernard indicated that he had difficulty understanding why the applicant could not open the safe given that she had used the safe several times that day and the safe opened without problem the following day. The clear implication of his evidence is that he does not believe that the applicant could not open the safe. 17 I do not accept that this is the case because there is no explanation why the applicant would take the more circuitous route of leaving a note for the employer or what benefit she would achieve from such an action. It is also clear that Mr Bernard accepted C’s version of events of the situation that evening, which corroborated the applicant’s statement that the safe would not open.18

Conclusion on allegation B

[55] Full time employees are required to work 10 shifts per fortnight.The rostering practices vary between stores - some adopt a roster arrangement of six days one week and four days the next, while others adopt five shifts per week. This latter arrangement was the preferred arrangement in the Gepps Cross Store.

[56] The applicant was at the Gepps Cross Store for a total period of about six to seven weeks. She stated that in mid to late February, about a fortnight after she commenced there, she had a discussion with Mr Bernard about having Tuesday’s off and working Saturdays instead. Subsequent to this discussion she negotiated roster changes to attend to personal matters on Thursday 6 March and Saturday 8 March 2014.

[57] Mr Bernard’s witness statement indicated that he made an agreement with the applicant on 3 March or 4 March, that she could have 6 March and 8 March off and that she would work on Tuesday 11 March, “...which was previously her day off.” 19 This lends support to the applicant’s evidence that there was an earlier agreement with Mr Bernard that her regular roster would involve having Tuesdays off and working Saturdays.

[58] Relevant to the applicant’s case is the situation on Saturday 1 March. The applicant stated that she worked on this day in addition to working Monday to Friday (24 February to 28 February inclusive). Her witness statement indicates that she shouldn’t have worked on Saturday 1 March and that this was “just a teething problem” 20 and I infer that this is a reference to the roster arrangement she had previously agreed with Mr Bernard. However under cross-examination she stated that she was allowed to have Thursday 6 March off work to attend a Festival Fringe event because she had worked on 1 March and she also stated that she had requested 6 March as a day off at the end of February.21 This is inconsistent with the notion that she shouldn’t have worked on Saturday 1 March and indicates that there was a purpose behind her working on this day.

[59] At the time he prepared his witness statement Mr Bernard was of the view that the applicant had not worked on Saturday 1 March, but this evidence was subsequently corrected at the hearing after further documentation from the Store was examined which indicated that the applicant worked that day. Mr Bernard maintained that the applicant’s attendance on 1 March was not authorised and she was not rostered to work. This is supported by the roster for that period. 22 It is also supported by the applicant’s acknowledgement that there were three people working on 1 March when the standard staffing compliment was two.

[60] The dispute as to whether the applicant worked on Saturday 1 March could not be resolved by referring to the applicant’s time sheets, as several versions existed for the period covering Saturday 1 March 2014. This is contrary to the proper completion of time sheets after each shift is worked.

[61] Mr Bernard conceded that there were multiple versions of rosters as changes were made, generally to accommodate staff requests, but he was adamant that the correct and final roster for the period including the week commencing on 10 March, was posted in his office. The roster shows that the applicant was required to work on 11 March. 23

[62] I have difficulty with the applicant’s evidence that she arranged with Mr Bernard to have a day in lieu on 11 March as a result of having worked on 1 March (and therefore having worked 6 days in that week) on a number of grounds. I accept Mr Bernard’s evidence that he was unaware that the applicant had worked 1 March and that he arranged staffing on that day on the understanding she was not working. This is supported by the roster. In addition, the applicant only worked 4 days in the week following 1 March and if there was a day in lieu owing to her it would have been taken on either 6 or 8 March, the days she had off in that week.

[63] There was a further/alternative explanation put forward in the applicant’s evidence, namely, that she did not attend on 11 March because she was reverting to the previously agreed arrangement of having Tuesday’s off and working Saturdays. 24 I note that this evidence conflicts with her witness statement that this arrangement would recommence in the fortnight commencing 17 March 2014.25

[64] Whatever the applicant understood her roster arrangements to be as a result of the discussions with Mr Bernard, she should have checked her roster. There was no reasonable explanation put forward for not doing so.

[65] The respondent’s unchallenged evidence is that at the meeting on 13 March the applicant expressed the view that Mr Bernard had difficulty understanding the applicant’s roster arrangements. This underscores the requirement upon her to check her roster and/or clarify the roster arrangements with Mr Bernard.

[66] I conclude that in all the circumstances there was a lack of diligence on the applicant’s part in clarifying her roster arrangements and/or checking the roster. This would have been a reasonable step to take in the circumstances.

[67] It appears that the applicant formed a view about her roster and proceeded to work in accordance with that view. Her contradictory and unsatisfactory evidence about her roster arrangement indicates that her view was not soundly based and appears to have been influenced as much by convenience as any rational consideration.

[68] I note that the system of making changes to rosters has changed since the incident with the applicant, and rightly so. I am satisfied however that the production of multiple rosters in the process of determining the final roster that would apply does not explain the applicant’s actions in not attending work on 11 March.

The statutory criteria

[69] Section 387 of the Act identifies the matters to be taken into account by the Commission is in determining whether the dismissal was harsh, unjust or unreasonable:

“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.”

Valid reason: s.387(a)

[70] I have found that the demotion of the applicant and the issuing of a final warning in January 2014 was open to the employer on the facts. I have also found that the respondent’s view of the applicant’s actions in regard to allegation A were not open to it. It follows that I do not accept as fair or reasonable the respondent’s conclusion in the termination letter that the failure to secure the money in the safe was a fundamental breach of the SSOPP and the requirements of the applicant’s position.

[71] The issue for determination is whether the applicant’s failure to attend her rostered shift on 11 March (allegation B), in combination with the final warning issued in January 2014, is a sound, defensible or well founded reason for dismissal 26 connected to the capacity or conduct of the applicant.

[72] The applicant’s cavalier approach to the rosters so soon after the previous disciplinary action, and in circumstances where she understood the seriousness with which the employer viewed her actions, is difficult to fathom.

[73] It is the case that some of the allegations in the January investigation are relatively minor in nature and in isolation would not be seen as warranting the disciplinary action that ensued. I am also satisfied that the applicant did not act with any malicious intent toward others in relation to the January allegations and that the matters complained of in the March allegations were not a repeat of any of the specific matters contained in the January allegations. But there is a pattern of behaviour evident in the applicant’s approach, which in my view, the employer was entitled to take into account.

[74] Her approach to the roster can reasonably be seen as a continuation of the behaviour and/or approach to her work requirements evident in the January investigation. That is, she demonstrated a lack of diligence regarding reasonable work requirements and a lack of reflection on, or consideration of her actions. Seen in this context, I am satisfied that the January warning was entitled to be taken into account by the employer in considering the outcome from the March investigation.

[75] The employer lost trust and confidence in the capacity of the applicant to be an effective Manager or member of a team. I determine that there was a valid reason for the dismissal.

Procedural matters: ss.387(b), (c) and (d)

[76] I am satisfied, and there was no challenge by the applicant, that she was notified of the reason for dismissal, had an opportunity to respond to those reasons and had the assistance of an official from the SDA.

Prior warning: s.387(e)

[77] This paragraph relates to unsatisfactory performance. The employer characterised the applicant’s actions as “conduct” issues, but for the most part I regard her actions as relating to unsatisfactory performance. It was the applicant’s diligence, the quality of her work and the care taken by her in the performance of her duties 27 that were highlighted in the January allegations, although the distinction between performance and conduct is not always clear.

[78] The nature and purpose of a warning was considered by a Full Bench of the Fair Work Commission in BlueScope Steel Limited v Sirijovski. 28 This decision concerned an appeal and cross appeal against the decision at first instance, which found that the dismissal of Mr Sirijovski was harsh, unjust or unreasonable. In the course of its consideration the Full Bench stated:29

“The purpose of a warning contemplated by s.387(e) of the Act is to demonstrate the seriousness with which an employer regards an employee’s performance and/or conduct and to provide an opportunity for the employee to address those concerns and thereby avoid or reduce the risk of dismissal. A warning should identify the relevant aspects of the employee’s performance which is of concern to the employer and should make it clear that the employee’s employment is at risk unless the performance is improved. In James McCarron v Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd the nature and purpose of a warning about unsatisfactory performance is described as follows:

‘[32] The purpose of a warning about unsatisfactory performance must be to identify the performance that is of concern and must make it clear that a failure to heed the warning places the Applicant’s employment at risk. Such a warning gives an employee an opportunity to improve in those areas identified as requiring improvement. An integral part of such a warning must be to clearly identify the areas of deficiency, the assistance or training that might be provided, the standards required and a reasonable timeframe within which the employee is required to meet such standards.’”

[79] The warning of 21 January 2014 placed the applicant on notice that her employment was at risk. The areas of deficiency in her performance were not particularised in the warning, although the respondent’s conclusions on the allegations identify the applicant’s failings.

[80] The warning stated that “continued misconduct or breaches of SSOPP will not be tolerated.” Given the apparent breadth of the SSOPP to most if not all aspects of employment, the warning infers that anything that the applicant does wrong in the future will trigger dismissal, regardless of the circumstances or seriousness of her actions. The respondent’s approach to applicant’s failure to secure the cash in the safe is instructive in this regard.

[81] The warning lacked any reference to the standards required to be exhibited by the applicant except in the broadest terms. No training was identified and no time frame to improve was specified.

Resources available to the employer: ss.387(f) and (g)

[82] There is no dispute that the employer is a large national organisation with access to specialist advice.

Other relevant matters: s.387(h)

[83] On the surface, there is some merit in Mr Blairs’ argument that the applicant received less favourable treatment than other employees who committed the same misconduct. In assessing inconsistent treatment, all the circumstances of the relevant incidents need to be taken into account. Even where differential treatment is alleged between persons involved in the same incident, the Commission must be conscious of the circumstances of each of the persons involved. 30

[84] Given the emphasis the employer placed on the SSOPP relating to cash handling, the issuing of a non-compliance notice to C reflected a lenient approach, especially compared to its response to the applicant. 31 Both shared equal responsibility for securing the cash. However, and putting to one side that I have found that no breach of the SSOPP occurred, it is relevant that the applicant was on a final warning at the time of the incident so that her circumstances were different from C’s in a way that was relevant to the level of disciplinary action that was issued.

[85] The other matter relied upon by Mr Blairs was that no action was taken in respect to the staff who failed to complete an incident report concerning the fall by the elderly customer, whereas the applicant was charged and disciplined for a breach of the SSOPP for failing to do so. 32 The fact that no action was taken in respect to the Sales Assistants indicates that the employer’s approach to breaches of the SSOPP was inconsistent. However, the applicant acknowledged that as Store Manager, she should have personally attended the situation. She had an additional responsibility over and above that of the staff she supervised in relation to the incident, which is relevant to the consideration of whether she received less favourable treatment.

[86] The final matter is the applicant’s employment history. The January warning referred to “one on one coaching” received by the applicant in relation to an unsubstantiated complaint in 2012, but until the January investigation the applicant had over 15 years of satisfactory service, including a promotion to Store Manager. She is a middle aged woman who has indicated that she has been unable to obtain employment since dismissal and has not received any income since dismissal apart from the pay in lieu of notice.

Conclusion

[87] I have concluded that, in relation to allegations 1, 2, 6, 7 and 8 the applicant displayed a lack of care, diligence and professionalism in exercising her responsibilities as Store Manager, including her interactions with and consideration for staff. Allegation 3 is a lower level issue and I have placed limited weight upon it. Allegation 9 concerned the disregard of a lawful direction concerning the completion of leave forms, which had been issued following similar conduct by the applicant. Having regard to the evidence surrounding this allegation, I have concluded that the issuing of a final warning was open to the respondent.

[88] The final warning was able to be taken into account in assessing the March allegations. The deficiencies in the warning were not so significant that they provide a mitigating factor in assessing the seriousness of allegation B, although it may have done had the applicant advanced a reasonable explanation for her actions. Her evidence as to why she attended work when not rostered on 1 March, and failed to attend work when rostered on 11 March, was inconsistent and unreliable. Nothing in her explanation would have provided any comfort to the employer that similar situations would not arise in the future.

[89] There was limited evidence on the impact of the dismissal on the applicant, but on the basis that she has been without an income for some months there has clearly been a financial impact. The evidence is not sufficient to support a conclusion that there are circumstances which make the impact of the dismissal on the applicant particularly harsh and/or in excess of the impact that would be reasonably expected to flow from the loss of employment. Her substantial length of service is a relevant factor, but this alone, in the context of this case at least, does not render the dismissal harsh.

[90] I conclude that the dismissal was not disproportionate to the totality of the applicant’s conduct and that the dismissal was not harsh, unjust or unreasonable.

[91] The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr D Blairs representative for the applicant

Mr J Reid for the respondent

Hearing details:

2014

Adelaide

24, 25, 26 June

 1   Ex A1 and A2, respectively.

 2   Ex R1, R2, R3, R4, R5 and R6 respectively.

 3   Ex A1 Attach VP-4.

 4   PN770.

 5   PN116.

 6   PN182, 185, 187-191 and 193.

 7   Ex A1 at para 60; PN264; Ex A3 at p 2, respectively.

 8   The relevant SSOPP was not put in evidence.

 9   Ex R5 attach EL-4.

 10   Ex A1 attach VP-4, paras 40-44.

 11   Ex A1 at para 250; PN543.

 12   Ex R1 attach RS-2 at 9.1B.

 13   Ex R1 attach RS-1 paras 34-40.

 14   Ex A1 attach VP-1 Store Manager Position Description.

 15   PN410-411.

 16   Ex R1 attach RS-3 at 41.7.

 17   Ex R6 at paras 22 - 26.

 18   Ibid at para 31.

 19   Ex R6 at para 43.

 20   Ex A1 at para 213.

 21   PN628-629; PN622-624.

 22   Attach to Ex R6.

 23   MFI R7.

 24   PN633-634.

 25   Ex A1 at para 217.

 26   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 27   Annetta v Ansett Australia (2000) 98 IR 233 at 237.

 28   [2014] FWCFB 2593.

 29   Ibid, at [37]. Footnotes deleted.

 30   Sexton v Pacific National (ACT) Pty Ltd, PR931440, 14 May 2003.

 31   Allegation A.

 32   Allegation 2.

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