Yang Li v Australia Wide Security and Consulting Pty Ltd

[2016] FWC 3682

[2016] FWC 3682

FAIR WORK COMMISSION

DECISION

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

Yang Li
v
Australia Wide Security and Consulting Pty Ltd
(U2015/16716)

COMMISSIONER WILSON DARWIN, 8 JUNE 2016

Application for relief from unfair dismissal; Small Business Fair Dismissal Code; termination consistent with Code.

[1] Yang Li was employed by Australian Wide Security and Consulting Pty Ltd as a casual cash-in-transit security officer from 11 July 2014 until his dismissal on 26 November 2015.

[2] Mr Li’s application to the Fair Work Commission for an unfair dismissal remedy was made by him on 11 December 2015, naming two different entities as the Respondent. Firstly, his application refers to the legal name of the business from which he was dismissed as being Australia Wide Security and Protection Pty Ltd. It then refers to the trading name of the business being Australia Wide Security Brokers Pty Ltd.

[3] Having considered all of the material before me, and with the consent of the parties to do so, pursuant to the provisions of s.586 of the Fair Work Act 2009 (the FW Act) I have determined that it is appropriate to amend the name of the Respondent shown on the application to Australia Wide Security and Consulting Pty Ltd. That is the name shown on the payslips and annual PAYG Payment Summary provided to Mr Li and it is consistent with the other documentation before me. An order will be issued by me to this effect.

[4] Section 396 of the FW Act requires the determination by the Commission of four initial matters before considering the merits of an unfair dismissal application. For the purposes of that section, and it being consistent with the evidence, I find that Mr Li’s application was made within the period required in s.394(2); that he was a person protected from unfair dismissal; and that his dismissal was not a case of genuine redundancy.

[5] However, greater consideration is given in respect of s.396(c), which requires consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code). While Australia Wide Security and Consulting contends both that the Respondent is a small business and that Mr Li’s dismissal was consistent with the Code, Mr Li does not agree to either proposition.

[6] For the reasons set out below, I find that Australia Wide Security and Consulting is a small business employer within the meaning of the FW Act and that Mr Li’s dismissal was consistent with the Code. I therefore find that his application should be dismissed.

BACKGROUND

[7] Mr Li’s job with Australia Wide Security and Consulting was to deliver cash floats to retailers within a defined territory, usually in the morning, then collect and bank their accrued cash. The territory he worked was in Melbourne’s east, and was referred to by the Respondent as the “Maroondah Run” 1. He was expected to perform these tasks as efficiently as possible, banking as he went through the day. Banking was for the purposes of depositing cash on behalf of retailer clients at their bank and, where needed, changing denominations in order to build floats for the same or other retailers. He was expected to not have more cash on him at any given time than a certain amount. As far as possible, he was expected to have provided floats, and collected and banked accumulated cash all on the same day.

[8] Mr Li was engaged to work casually on Mondays and Fridays. While he had no specific hours of work, he was paid for eight hours on each day he worked. He was also expected to arrange his travel for the day, working out which bank or retailer he started from and where he would go next. His work was performed from his car, for which he was paid a fuel allowance, and he had no physical place of work. When and where he started and finished each day was essentially up to him.

[9] If he could not complete all the banking that was required for the day, he was expected to either deposit the accumulated cash in a bank deposit machine or to take it to his home. If he took the accumulated cash home, he would be expected to bank it on the next working day; otherwise it may be that the cash was held for several days if he was not working in between.

[10] The evidence in this matter, which proceeded by way of determinative conference, was received from Mr Li, who was the only person to give evidence on his behalf, and, on behalf of the Respondent, Leisa Provost, the owner and National Manager of Australia Wide Security and Consulting, and Shaun Dunn, its Operations Manager.

[11] Ms Provost’s evidence is that Australia Wide Security and Consulting is a contractor to another company, Australia Wide Security Brokers, which in turn contracts with the retailers and other clients whom Mr Li would service. 2

[12] The evidence discloses that for some time the Respondent had been concerned about Mr Li’s adherence to its procedures and whether he was performing as effectively as possible. In March 2015, Ms Provost had cause to remind Mr Li in writing of several matters concerning her company’s expected processes. At that time she had received a message from a client saying that Mr Li had told the store that he was too busy to do a change order, with her reminding him that that was not appropriate. In the same correspondence she referred to the same client telling Mr Dunn that “they were desperately short of change and they needed to be assured they could always get change on Mondays in the future”. 3 She also stated the following to Mr Li about the need for his adherence to the company’s expected process and efficient conduct;

“Also, it is very important that you do not carry all your banking throughout the day and then bank at one location. It is dangerous and you will not be covered by insurance. You need to bank your takings several times throughout the day. I understand that you will need to keep NP until Westpac at Knox or Oakleigh, and that is why you need to offload your ANZ, CBA amd NAB bags as soon as you get them. There is an ANZ and NAB on Kingsway (just behind the Glen) and you could bank your Nunawading collections there, before proceeding to Knox.

If you need to talk to Shaun about your run, please feel free to do so as it is very important to follow procedure.” 4

[13] The issues referred to above appear then to have been a continuing issue through the remainder of Mr Li’s employment.

[14] From Mr Li’s perspective, he thought the company was being unreasonable in its expectations of him, taking the view that Australia Wide Security and Consulting expected too much of him during a given day.

[15] Mr Dunn is Australia Wide Security and Consulting’s Operations Manager in Victoria. He gave the following evidence about the concerns he had with Mr Li’s performance, with those concerns coming to a head in early November 2015;

“On Monday 2nd November Leon contacted me by text and stated that he had not been able to complete his banking and would have to leave it at the office or bank it on Friday.

I explained to Leon that there would not be anyone at the office and that Friday was too late to bank a collection made on Monday. As Tuesday was a public holiday I asked why he was unable to bank it on Wednesday and he stated that he was working on this day.

I then explained that it was unacceptable to pick up on a Monday and bank on a Friday. I was surprised that this suggestion had been made as I knew it had been explained to Leon the policy regarding banking.

I then asked him to contact one of two guards who may have been in the area and could help him and provided the numbers of the guards.

It should be noted that at the time Leon first contacted me it was 4.33pm and he was still being employed for that day. I was later advised that the banking bags consisted of CBA and NAB bags.

There are two NAB banks which have facilities to enable banking after hours which are on his run or close to his home, Eastland and Chadstone.” 5

[16] It is common ground between the parties that on 23 November 2015 there was then further contact between Mr Li and Mr Dunn again by text to the effect that Mr Li needed to again drop off cash bags at the office. That exchange apparently commenced at about 4:50 PM and extended through until at least 10:02 PM. After several exchanges Mr Dunn communicated with Mr Li the following;

“Mr Dunn: 11/23, 18:16 Hi Leon I’m not at the office now. I am with my son for the night. You will have to find some way of doing the banking. Sorry I can’t help but banking is your responsibility. Will be out of contact as am taking my son to s (sic) movie now.

Mr Li: [date and time not clear] I respectfully disagree. It’s more your responsibility, unless the workload is reasonable, which I have been trying to communicate. I did what I could. Enjoy your movie with your son.

Mr Dunn: 11/23, 18:38 Hi Leon can you please meet me at Chadstone outside CBA with the bags you have and any property of AWSB, books, bags, seals etc. You can deposit your float into the Vic Office Account or bring it with you. What time would you like to meet there?

Mr Li: 11/23, 18:38 Are you firing me?

Mr Dunn: 11/23, 18:45 What time would you like to meet. I can’t have a guard who was unable to complete his banking from Monday until Friday and will not take responsibility for his own run. You have been doing this run for over a year and haven’t tried to fix the problem yourself.

Mr Li: 11/23, 18:50 I got everything under control until you give me 2 more jobs recently. Is this true? So how many jobs I suppose to be responsible? Was it only a couple of months ago when I felt couldn’t push any more? Once for a while, can you directly answer these questions? I really want to know what’s the deal here. I cut every corners I could, using my own money for float, keep all the bags together and bank them at once.

Mr Dunn: 11/23, 19:01 You have been starting from Chadstone to get change orders 1.5 hours after your first door opens at 9am when you could have been starting at Chirnside CBA which has a business teller and working from the opposite direction. You could have made up some of you change orders by having your float at home instead of keeping it in the bank. You could have made up your change orders as you go and banked as you go by calling the client on the way at times when you were close to banks. You have the smallest number of jobs of all the guards currently working so, no, you are not pushed and you have been unable to work this out for yourself despite me telling you on s (sic) number of occasions that you should not be holding all of your banking until the end. If you would rather not meet you can leave everything attune (sic) office and then text me when you have left and I will collect it

Mr Li: 11/23, 19:10 First of all, I reached out for help 2 weeks ago by emailing you the travel logs and much earlier for asking you riding with me. Now you remembered to help or you’re trying something else here? Second, I never intent (sic) to keep float at my place for the whole weekend. That money is my responsibility, unless, you put it down in writing saying otherwise. I used to pick up changes for Monday and honestly, it could work even for now. But that changed, didn’t it?

Mr Dunn: 11/23, 19:43 Hi Leon I get the impression from your text that you feel hard done by and if that is the case I’m sorry you feel that way but at the base of all this. I need guards who are able to complete the run and I have guards who can do that. The run is going to get busier leading up to Xmas and so I think you need to consider that this CIT job is not for you. If you have any grievance you can take it up with Leisa but I need to finalise this as I am very busy. You can, as I said, leave everything at the office and I will collect it. You can also deposit your float into the Vic Office Account, I can resend the account details to you if you wish and of course I wish you all the best in the future. Shaun

Mr Li: 11/23, 20:00 Hey, don’t pin this on me. You want me to perform unreasonable workload and in order to do so you willing to scarify (sic) my safety, which is knowing I couldn’t complete NAB banking you still wanted to me to bank NAB bags in an open area every Monday evening, for at 30 minutes, regardless I had mentioned my concert (sic) before. I’m fine with the job and I’m good at it. What I’m not ok is your unreasonable request.

Mr Li: 11/23, 22:02 Dropped. NABs and CBAs and WV bag. At the corner outside the door, underneath seals” 6

[17] Mr Li is critical that Mr Dunn did not respond to the question about whether he was being fired. One of the text exchanges between the two suggested that if Mr Li had any grievance he could take it up with Ms Provost. Mr Li contacted Ms Provost by text on the same evening and they agreed to talk the following morning. Ms Provost’s evidence on the subject of the conversation includes the following;

“4. At 10.30am Tuesday 24th November 2015, Yang and I had a phone conversation that lasted approximately 30 mins. At the start of the call I mentioned that I had heard from Shaun, however I was here to listen and to please speak honestly and candidly so we could try to work out the situation.

5. Yang informed me about the incidents on Mon 2nd and Mon 23rd Nov 2015 whereby he didn’t finish his run and asked Shaun to come and collect the banking from him. He informed me that Shaun had asked him to handover his keys for the Run and felt we were being very unfair by punishing him when we put a difficult workload on him. I asked Yang why he didn’t use the NAB Express Deposit Machines to bank all of the Petbarn clients he had and he stated emphatically that it was putting his life in jeopardy and he wasn’t prepared to do that. I said that was odd considering he was a trained security guard and had been using banks for his entire period of employment.

6. I said to Yang that I had noticed that his replacement guard in September was able to complete the run in 6 hrs with only $1000 float, after not having done the run in 17 months and with new clients to service, and therefore I didn’t think it was an unfair workload. Yang then stated he had submitted a log of his jobs and the time it took, and replied that I had read that email and was concerned that he was admitting to starting work at his local bank usually at 9.45am and therefore not getting to his first collection until at least an hour later. Yang replied that he wanted to do it this way because he was not prepared to have cash on him at home because his flatmate would steal it. I then asked why he didn’t use a bank closer to his first job and why he didn’t start at the other end of the run as previously trained by Cyril and instructed by Shaun, and Yang replied that he had an arrangement with the bank and he would get all of his change order for the entire day, using his own money as well.

7. I responded by saying that this was a problem because it meant he was in the bank too long in the morning and that he was carrying all of his 18 clients money with him all day and waiting to bank at the end of the day. I said this is why he was left with so many bags and that it was in breach of our policies and I had already personally discussed this with him before.

8. I then asked him again why he couldn’t use the 24 hr bank facilities to get change for the first clients, and he reiterated that it was putting his life in jeopardy and he didn’t feel safe because he didn’t have a gun.

9. I then stated to Yang that if he refused to follow instructions and complete the run in the way he had been trained that I had no option but remove him from the run. Yang then asked if I agreed with Shaun, and I agreed yes because we needed guards to complete their tasks properly.

10. Yang said that we were being unfair and I replied by saying that I thought that wasn’t the case because we were very understanding of his own situation. I explained that over the last 12 months that he was never able to do any additional work due to other work commitments, gym, basketball or study and we were always very understanding and accommodating of this. I also reminded him that he gave notice back in September with only 2 days notice that he had successfully applied for another job and would be training on a Monday and therefore couldn’t do his run – and that we had wished him the best and covered his run immediately. The fact that he didn’t like the job and asked to come back should show that we were very agreeable and have a history or fair treatment.

11. Yang then asked if he was fired and I replied by saying that I had no other available positions to offer him and therefore I had no choice but to cease his employment.” 7

[18] The conversation between the two on 24 November 2015 ended abruptly, with Ms Provost giving evidence that her phone battery failed. Following the conversation, on 26 November 2015, Ms Provost forwarded an email to Mr Li in these terms;

“Hi Leon

Further to our conversation on Tuesday, we hereby confirm the cessation of your casual position with Australia Wide Security, effective immediately.
I apologise for my phone cutting out during our conversation (it ran out of battery and I was out doing CIT all day).
Can you please transfer your $2000 float back to the VIC CBA bank account today.
Also, could you please have all keys, AWS Deposit books, satchels, WV Tags, stamped dockets and any other stock belonging to AWS ready for collection this afternoon/evening and I will arrange for a guard to collect it from you.
Your final pay will be processed this afternoon and will include the work for this Monday. We will also forward you a separation certificate.
We wish you all the best for your future.
Regards,
Leisa Provost
National Manager
AUSTRALIA WIDE SECURITY” 8

[19] Mr Li also requested of Ms Provost by text whether “he could still do the Friday run so he could say goodbye to our clients as he felt he had made friends of them and wanted to tell them he wouldn’t be back”. She refused the request, considering it to be contrary to company policy, and that she would be doing the run herself. 9

LEGISLATION

[20] The legislative provisions which are relevant to this matter are set out in the FW Act, at s.388 (The Small Business Fair Dismissal Code) and s.387 (Criteria for considering harshness, etc). The first consideration in this matter is whether Mr Li’s dismissal was consistent with the Code. If it was, then his application fails; if it was not, consideration must then be given by the Commission to the provisions of s.387. 10

[21] Section 388 of the FW Act is set out in the following terms;

388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[22] So far as is relevant, the Code provides the following;

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[23] If there is a finding that a dismissal is not consistent with the Code, then the Commission must have regard to the criteria set out within s.387 which deals with the considerations to which regard must be had in determining whether a dismissal is unfair. That section is in the following terms;

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.

CONSIDERATION

Whether a “small business”?

[24] The first question for determination in this matter is whether Australia Wide Security and Consulting Pty Ltd is a small business within the meaning of the FW Act. If it is, then s.396 requires that the Commission first determine whether Mr Li’s dismissal was consistent with the Code, before turning to the criteria set out within s.387.

[25] The meaning of a small business employer is set out within s.23 of the FW Act, which provides that a national system employer is a small business employer at a particular time if it employs fewer than 15 employees at that time. However s.23(3) of the FW Act provides that associated entities are taken to be the one entity for the purpose of calculating the number of employees employed at a particular time. That proposition in turn requires, for reason of The Dictionary in s.12 of the FW Act, consideration of whether there is any associated entity relationship within the meaning of s.50AAA of the Corporations Act 2001.

[26] Ms Provost contends that Australia Wide Security and Consulting is a small business for the purposes of the FW Act and that there are no associated entity relationships. Her evidence includes that Australia Wide Security and Consulting employs 13 people in Melbourne and Sydney. 11 Mr Li contests that the business employs more than this number of people, and submitted a document in the form of a list for clients of the names and contact details of guards they may expect to see in their business from time to time. Ms Provost’s response is that the list is old and that it contains details of guards who are not her employees, but rather contractors. After consideration of all the evidence provided on the subject of the number of people employed by Australia Wide Security and Consulting, including financial material submitted by the company, I accept that at the time it dismissed Mr Li, it was a small business employer, employing fewer than 15 employees.

[27] The evidence also allows that none of the other businesses in which Ms Provost is involved, or with which it has a supplier contractual arrangement, are associated entities for the purposes of the FW Act. Broadly, the evidence includes that Ms Provost operates another company, Australia Wide Security and Protection Pty Ltd, however the business of that company is the provision of static security guard services in Queensland 12, whereas the business of Australia Wide Security and Consulting, also referred to by Ms Provost as Australia Wide Security Consultants, is to provide cash-in-transit services in New South Wales and Victoria. Ms Provost’s evidence about those two companies includes that the two do not share resources.13

[28] The evidence about Australia Wide Security and Consulting’s business arrangements also includes that it is a service provider for cash-in-transit services to another company with a similar name: Australia Wide Security Brokers Pty Ltd. In summary Ms Provost’s evidence is that Australia Wide Security Brokers contracts with clients to provide a cash-in-transit service and then subcontracts that work, in Victoria and New South Wales at least, to Australia Wide Security and Consulting. 14 The evidence about those two entities allows the finding that there is no relationship of the nature envisaged by s.50AAA of the Corporations Act.

[29] Accordingly I do not find the two are associated entities within the meaning of either s.50AAA of the Corporations Act, or for that matter, the FW Act.

[30] For these reasons I am satisfied that Australia Wide Security and Consulting is a small business within the meaning of the FW Act.

Consistency with the Code

[31] I turn to whether Mr Li’s dismissal was consistent with the Small Business Fair Dismissal Code. In this regard, I note that the Respondent seeks to rely upon only the “summary dismissal” part of the Code and that there is no contention that it seeks to rely upon the “other dismissal” part of the Code.

[32] The application of the Code and its meaning in respect of summary dismissals has been discussed by the Full Bench in the matter of Ryman v Thrash Pty Ltd in which it was held that the reference to “serious misconduct”, in relation to the Code’s reference to conduct being sufficiently serious to justify immediate dismissal, is to be read as bearing the same meaning in reg.1.07 of the Fair Work Regulations 2009. 15 In this regard, the Full Bench elaborated;

“[38] We therefore consider that the “Summary dismissal” section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in reg.1.07.

[39] To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal it is necessary for the Commission to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:

“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”

[40] Whether the employer had “reasonable grounds” for the relevant belief is of course to be determined objectively.

[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.

[42] In this case, Mr Ryman’s dismissal occurred with immediate effect - that is, without the provision of any actual notice - on the ground of serious misconduct. The fact that he was paid an amount said to be in lieu of notice, or that the dismissal occurred some days after the conduct to which it related, does not alter the position in this respect. His dismissal therefore fell to be considered under the “Summary dismissal” section of the Code in accordance with the Pinawin principles. There was no error on the part of the Commissioner on this issue.” 16 (reference omitted)

[33] In the matter under consideration in Ryman v Thrash the Full Bench ultimately held that the Respondent did not in fact hold the belief that the Applicant’s conduct was misconduct sufficiently serious to justify dismissal. That finding came about because the Full Bench considered the Respondent’s conduct to be inconsistent with a belief of misconduct sufficiently serious to justify dismissal, when it sought the Applicant to attend for work several days later than the incident that led to his dismissal. Accordingly the dismissal in that case could not be held to be one in which the Code had been complied with. 17

[34] The Full Bench’s decision in Pinawin related to concerns about the impact of an employee’s drug-taking on the business premises. In relation to the absence of an investigation, the Full Bench concluded;

“Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo’s conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well. They directly observed his behaviour. They believed that he had made lifestyle choices that involved drug-taking and this directly related to his capacity to perform his work. His work involved close personal dealings with clients. At the time they made their decision, Mr Domingo was hospitalised. They were conscientious in considering the grounds for summary dismissal in regulatory material available on the internet. In these unusual circumstances we are of the view that the employer, when considering Mr Domingo’s recent erratic and unusual behaviour, formed the belief that Mr Domingo had engaged in conduct that justified immediate dismissal on reasonable grounds.” 18

[35] The grounds for the formation of a reasonable belief were further discussed by the Full Bench in the matter of Steri-Flow Filtration Systems (Aust) Pty Ltd v Craig Erskine 19 in which it was found that a belief that an employee had used an employer’s property for their own purpose, with that being deemed serious misconduct, arose from things directly supported by discussions and email exchanges between the employer and the employee and a third party, as well as reasonable inferences that could be drawn from these exchanges.20

[36] It is appropriate, when considering whether Mr Li’s dismissal was consistent with the Code, to make reference to the steps set out in Ryman v Thrash for resolution of the question of whether the Respondent had “reasonable grounds” for its belief that Mr Li’s conduct was sufficiently serious to justify immediate dismissal. 21 For practical purposes those steps are;

• Whether Ms Provost genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal; and



• Whether her belief was, objectively speaking, based on reasonable grounds, and related to that question is whether a “reasonable investigation into the matter” has been carried out.

[37] A consideration of the evidence presented in this matter leads to the following findings which will inform my determination of the application;

• Mr Li was dismissed on Tuesday, 24 November 2015 in the course of a telephone conversation with Ms Provost. Her correspondence to him on 26 November 2015 confirming his termination was a confirmation of that which had been communicated and taken effect several days earlier;



• The evidence allows that Mr Li’s termination took effect immediately;



• It is also the case that Mr Li was not permitted by Ms Provost to return to any of the company’s customers and say goodbye to them; and



• Mr Li was dismissed because of a failure on his part to adhere to requests made of him both by Ms Provost and Mr Dunn about the performance of his duties.

Genuine belief

[38] As set out in the matter of Ryman v Thrash, the first consideration is whether Australia Wide Security and Consulting “genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal”.

[39] The evidence of Ms Provost and Mr Dunn allows such a finding.

[40] Both gave evidence that in critical respects he was not following the company’s procedures and that Mr Li’s refusal to follow its procedures had continued for some time. They considered he refused to complete the banking runs in the way he had been trained; and refused to use the change float for the purpose it had been given to him. They believed that he did not bank accumulated cash in accordance with the standard procedures, which left the company uninsured if the amount of cash he had accumulated was above the permitted threshold. They also believed his conduct left the company open to customer complaints with the consequential potential for loss of business.

Belief based on reasonable grounds

[41] The second relevant consideration is whether Ms Provost’s belief “was, objectively speaking based on reasonable grounds”.

[42] In considering whether Ms Provost’s belief was objectively based upon reasonable grounds, it is appropriate to bear in mind the reasoning of the Full Bench that the reference to “serious misconduct” bears the same meaning for these purposes as in reg.1.07. That regulation is in the following terms;

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.

[43] The evidence discloses that so far as this matter is concerned the operative parts of the Regulation are subregulations (2)(a) relating to wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and (2)(b)(ii) relating to conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer’s business. The remaining parts of the Regulation do not appear to have relevance to these proceedings.

[44] At least in relation to this matter, consideration of the two elements is linked.

[45] The behaviour complained of by Ms Provost is crystallised with her evidence that he was dismissed “because he refused to follow procedures, start work earlier, deposit the monies using all facilities available and for refusing to use banks throughout the day, exposing the company and himself to greater risk and loss of Client contracts due to non-compliance”. 22 In short, Ms Provost wanted Mr Li to follow the company’s standard procedures within the hours allowed for his job to be undertaken so as to keep clients happy as well as to ensure that the company was not exposed to liability because of defective or non-compliant procedures.

[46] The Respondent’s belief included that Mr Li chose not to “start at the correct time and/or use banking facilities when branches close at 4pm. Yang was trained correctly and advised by both the Operations Manager and myself that he needed to start earlier and bank throughout the day. He refused to comply with this request.” 23

[47] For his part, Mr Li argued that he worked under an “overwhelming and unreasonable workload” 24 and that the work design jeopardised his safety when he had to spend a considerable time at the end of the day banking the accumulated cash at a cash deposit machine in a public place.25

[48] It is apparent from the evidence of Ms Provost and Mr Dunn that when they tried to either explain the procedures to Mr Li or to instruct him to follow those procedures he resisted either approach. Mr Dunn’s evidence was also that “by keeping all of the bags until the end of the day and banking them all at once which would have meant he was not insured for the amounts he was carrying should an incident have occurred”. 26

[49] While the evidence indicates that Mr Li complained about his workload and that he could not do it within the timeframes allowed, the evidence does not support that he was working under an unreasonably high workload. Even though Mr Dunn offered in early November 2015 to assist Mr Li by looking at his travel logs and helping with his workload concerns, and that such does not appear to have been followed through, 27 I am not persuaded this was an unreasonable failing on the part of Mr Dunn, or the Respondent. Around the same time, Mr Dunn had spoken with Mr Li about what could be done and had endeavoured to give him strategies to overcome the problems. Mr Dunn suggested Mr Li seek assistance from other guards in the area, or to use cash deposit machines for deposits made after the time the banks had closed (but within Mr Li’s span of working hours).28

[50] The evidence on the overall work is that it was unlikely to have been unreasonable. Ms Provost’s evidence was that, in the week Mr Li was dismissed, she “personally completed the Friday run, having never done the jobs before, and was able to complete in 4 hrs”. 29

[51] Mr Li does not point to examples where he listened to what the Respondent had to say, and modified his work habits, and then found he was still unable to complete the work in time. When giving evidence and making submissions, Mr Li was reluctant to consider alternatives to that which he wanted to put forward. I have little doubt that his approach to his former employer was similar; that is, to disregard those matters which did not fit with his view. More likely, the workload was tough, but capable of completion. Bearing in mind Mr Dunn’s evidence that he “had noted that Leon was not doing his first pick up until between 10.30am and 11 am which immediately put him 1.5 to 2hrs behind” 30 and that such proposition is supported by the timesheets for October and November 2015 submitted by the Respondent,31 it is likely Mr Li simply found himself compressed for time in which to do his job, for reason of starting the work later than might be expected, and the banks then closing their branches earlier than the time Mr Li had completed the runs.

[52] The safety characterisation put forward by Mr Li is similarly explained. On the one hand, there would likely be a lower perceived risk to his personal safety by following the Respondent’s standard processes to bank accumulated cash continually during the day; on the other, the risk may be perceptibly higher if banking was left to the end of the run when some or all of the relevant bank branches had closed.

[53] Ms Provost was concerned that Mr Li’s conduct left her vulnerable with her client, Australia Wide Security Brokers, and in turn with the businesses it contracted with. The connection with the clients was that it was up to Australia Wide Security and Consulting to collect their earnings and bank them and ensure that they had sufficient money for their cash floats. Prior to dismissal the Respondent was concerned about Mr Li’s cash handling, and in particular, that he was not banking the cash in a timely manner on the same day it was collected.

[54] That concern was confirmed with an audit of Mr Li’s collections and banking conducted by the Respondent after the date on which he was dismissed. The audit indicates that the banking for any particular client on any particular day may range between a few hundred dollars to over $10,000 in some cases. Many of the reported sums were in the range of $3000 to $7000.

[55] It can be readily appreciated that a client who handed their takings over to a person such as Mr Li would expect money to be banked the same day. While they may tolerate the day’s takings not being banked until early the following morning, it is extremely doubtful they would tolerate that their takings were not banked for some days which could well be the case if Mr Li did not bank their Friday earnings until the following Monday, or the Monday earnings until later in the same week and perhaps as late as Friday, being the next day upon which he was scheduled to work.

[56] The other aspect about Mr Li’s conduct which was obviously a concern to Ms Provost and Mr Dunn was that by adopting the practices he followed, Mr Li was escalating the consequences of the risk of a theft.

[57] As referred to, the company had a policy that no employee should carry with them cash above a particular threshold. The company’s policy in that regard was that at any given time an employee could have cash on their person of an amount equal to the threshold and could then have two and half times that amount in their car. 32

[58] The evidence of both Mr Dunn and Ms Provost was that they were concerned prior to Mr Li’s dismissal that he was carrying an amount of cash that was well above the threshold limit. The post-termination audit of Mr Li’s banking verifies that contention. In this regard I accept the Respondent’s evidence that a theft of an amount above the permissible threshold would not have been insured and that such circumstance would likely have had significant financial consequences for the business.

[59] As referred to above, the operative parts of the Regulation require examination of whether Mr Li’s conduct was “wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment” that caused “serious and imminent risk to the reputation, viability or profitability of the employer’s business”. (reg.1.07(2(a) and (b)(ii))

[60] The evidence allows that Mr Li’s conduct was wilful and deliberate; even in the face of discussion about the need for change, he chose not to. The conduct would also have unquestionably led to adverse consequences for the Respondent, which included the potential for a serious loss of business, or the lack of indemnification by insurance in the event of a theft of a large amount of cash. The conduct was thereby inconsistent with the continuation of the contract of employment because it posed a serious and imminent risk to the Respondent’s business.

[61] I find that Ms Provost’s belief that Mr Li’s conduct in this regard was misconduct on his part within the meaning of the Regulation and was, objectively speaking, based on reasonable grounds.

Whether conduct reasonably investigated

[62] In the circumstances, the conduct complained of did not require investigation on the part of the Respondent. The conduct consisted of things said by Mr Li to his manager, Mr Dunn, and then repeated by him to Ms Provost. While Ryman v Thrash finds that whether a reasonable investigation has been carried out by the former employer will be relevant to a finding that an employer’s belief is objectively founded, the Full Bench’s finding in that matter preserved the reasoning in Pinawin v Domingo. In Pinawin, the Full Bench found the following about the application of the Code;

“Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.” 33

[63] Its reasoning in this regard was informed by a UK decision as follows;

“This test brings the position for small businesses into line with the test for unfairness applied by tribunals in the UK in misconduct cases. In the leading case of British Home Stores Ltd v Burchell, the Employment Appeal Tribunal held that:

What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.” 34

[64] I am satisfied that, since Mr Li’s conduct was directly known by Ms Provost and Mr Dunn, that the Respondent has discharged its obligation to have “carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.

[65] As a result of the foregoing analysis, I find that Mr Li’s dismissal was consistent with the Code.

[66] As a result, I must now dismiss Mr Li’s application for unfair dismissal remedy, and an Order to that effect is issued by me at the same time as this decision.

COMMISSIONER

Appearances:

Mr Y Li on his own behalf.

Ms L Provost and Mr S Dunn for the Respondent.

Hearing details:

2016.

Melbourne:

4 May.

2016.

Melbourne (by telephone):

25 May.

Final written submissions:

Applicant: 25, 30 May 2016.

Respondent: 26 May 2016.

 1   Exhibit R1, Witness Statement of Leisa Provost, [7].

 2   Transcript PN 1247–1249.

 3   Exhibit R3, Respondent’s Bundle of Documents, Attachment 6.

 4   Ibid.

 5   Exhibit R2, Witness Statement of Shaun Dunn.

 6   Exhibit A1, Applicant’s Submissions, Attachment D.

 7   Exhibit R1 2-3.

 8   Exhibit R3 Attachment 5.

 9 Exhibit R1 [14].

 10   Ryman v Thrash Pty Ltd[2015] FWCFB 5264, at [48].

 11   Respondent's Outline of Argument: Merits, item 3L.

 12   Transcript PN 1239.

 13   Ibid PN 1278.

 14   Ibid PN 1247–1267.

 15   [2015] FWCFB 5264, at [37].

 16   Ibid [38]–[42], with reference to Pinawin[2012] FWAFB 1359, (2012) 219 IR 128.

 17   Ibid [46]–[47].

 18   Pinawin v Domingo[2012] FWAFB 1359, (2012) 219 IR 128, at [38].

 19   [2013] FWCFB 1943.

 20 Ibid [35].

 21 2015 FWCFB 5264 [41].

 22 Exhibit R1 [24].

 23   Respondent’s Outline of Arguments: Merits, item 3L.

 24 Exhibit A1 [9].

 25   Transcript PN 241.

 26   Exhibit R2.

 27 Exhibit A1 [10].

 28   Exhibit R2.

 29 Exhibit R1 [16].

 30   Exhibit R2.

 31   Exhibit R3, Timesheets submitted by Yang Li, Oct 16, 23, 30th and Nov 6, 13, 20th 2015.

 32   Transcript PN 544.

 33 (2012) 219 IR 128, at [30].

 34   Ibid, at [24], with reference to British Home Stores Ltd v Burchell [1980] ICR 303.

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