[2016] FWC 3009
The attached document replaces the document previously issued with the above code on 19
May 2016.
The formatting in paragraph [38] has been updated.
Associate to Vice President Hatcher
Dated 23 May 2016
1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Raj Bista
v
Glad Group Pty Ltd t/a Glad Commercial Cleaning
(U2016/4108)
VICE PRESIDENT HATCHER SYDNEY, 19 MAY 2016
Application for relief from unfair dismissal.
Introduction
[1] The contemporary philosopher Alain de Botton has written: “Office civilisation could
not be feasible without the hard take-offs and landings effected by coffee and alcohol”.1 On
12 January 2016 Mr Raj Bista, a part-time cleaner, sought the “take-off” of a cup of coffee
shortly before commencing his evening shift in a Sydney office block. However, far from
uplifting him, that cup of coffee was the direct cause of his rapid descent into summary
dismissal two days later.
[2] Mr Bista’s employer, Glad Group Pty Ltd (Glad) considered that because Mr Bista had
helped himself to a cup of coffee in the office kitchen of a tenant in the building he was
required to clean, he had engaged in theft, had caused a serious and imminent risk to the
reputation, viability or profitability of Glad’s business, and had committed serious misconduct
warranting summary dismissal. Mr Bista has lodged an unfair dismissal remedy application in
relation to his dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). He seeks to
be reinstated to his former position as a cleaner, together with orders that he be paid the
remuneration which he lost because of his dismissal and that his continuity of employment be
maintained.
[3] Section 396 of the FW Act requires that four specified matters must be decided before
the merits of Mr Bista’s application may be considered. There was no contest between the
parties about any of those matters. I find that:
(a) Mr Bista’s application was made within the period required by s.394(2);
(b) Mr Bista was a person protected from unfair dismissal;
(c) Glad was not a “small business employer” as defined in s.23 of the FW Act, so
that the Small Business Fair Dismissal Code was inapplicable; and
1 Alain de Botton, The Pleasures and Sorrows of Work
[2016] FWC 3009
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 3009
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(d) the dismissal was not a case of genuine redundancy.
Facts
[4] The facts of this matter were, for the large part, not in contest or were firmly
established by the evidence. In relation to a number of matters, the only evidence was that of
Mr Bista. I consider Mr Bista to have been a highly credible witness whose evidence was
clear, consistent and precise, and I have no difficulty in accepting his evidence in relation to
matters where he was the only witness. There was one incident of some importance where Mr
Bista’s evidence was contradicted by that of Mr Luis Belleza, his immediate supervisor. For
reasons which will be explained later, I prefer the evidence of Mr Bista over that of Mr
Belleza in relation to this incident. Mr Xiao Shao, Glad’s Client Service Manager in relation
to the building in which Mr Bista worked, was the only other witness, and I found his
evidence generally to be credible.
[5] Mr Bista is an international student whose visa restricts him from working more than
20 hours per week. He has recently completed a Master’s degree in Information Technology.
Since 2010, he has worked as a part-time cleaner in an office block at 130 Pitt Street in the
central business district of Sydney for various contract cleaning businesses which have held
the cleaning contract there. A company called Investa, which is the building manager for the
office block, lets out the cleaning contract. The building has various tenants one of which,
CMC Markets, occupies levels 8 and 13.
[6] In 2013 Glad won the cleaning contract with Investa for the office block. It employed
Mr Bista and other employees who had previously performed cleaning duties there. Mr
Bista’s employment commenced on 27 May 2013. The “Terms and Conditions of
Employment” document which Mr Bista signed upon engagement and evidently formed part
of his contract of employment indicated that he was simply employed as a cleaner by Glad
and was to be paid wages and conditions as prescribed by the Cleaning Services Award 20102.
His employment was not tied to the office block at 130 Pitt Street, since clause 1.2 of that
document provided that “These terms and conditions of employment continue to apply to your
employment notwithstanding that you are promoted or that your location, roster or job
description changes”. The document elsewhere provided that Mr Bista could be dismissed
summarily for serious misconduct (cl.6.2(b)).
[7] Clause 10.3 provided: “Due to the nature of the business, failure to meet the
expectations of the client may result in removal from site and Glad will not guarantee another
position will be available”. Notwithstanding this provision, the evidence indicated that Glad
held a wide range of commercial and retail cleaning contracts, and Mr Shao’s evidence in
particular was to the effect that, if instructed to by Glad’s Human Resources department, he
would have had little difficulty in either moving Mr Bista to another vacant position on
another commercial contract within his portfolio or swapping him with another employee on
another contract.
[8] Despite the reference to the Cleaning Services Award in his contract of employment,
Mr Bista was in fact paid the higher rates applicable under the Glad Cleaning Services and
LHMU Clean Start Union Collective Agreement 2008, which applies to Glad’s central
2 MA000022
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business district office building contracts. His specific duties in the office block were to clean
the toilets and bathrooms in the building. Other employees on the contract performed the
office cleaning duties. Mr Bista’s evidence was also that he functioned as the “Team Leader”
for the cleaners on the contract. There was some dispute about whether this was an official
designation, but there was no doubt that Mr Bista had special responsibilities over that of the
other cleaners, including that he had to prepare on a monthly basis a list of the cleaning
products and equipment that would be required for the upcoming month to perform the
contract and send this to Mr Shao to order. He was issued with a swipe card or cards which
allowed him to use the lifts (if locked) and to access the premises of tenants on each floor.
[9] There was no real dispute that, prior to the event which led to his dismissal, Mr Bista
was a competent and conscientious employee. Mr Bista himself said that “I attended to my job
in a professional and diligent manner, and was often commended by colleagues and clients”.
Mr Shao agreed in cross-examination that Mr Bista attended to his duties professionally and
diligently. Glad did not identify that there was anything adverse to him on his employment
record.
[10] There was a degree of factual dispute about the conduct of “Toolbox Talks” at the site
at 130 Pitt Street. This was brought up because Glad relied in the conduct of its case on a
Toolbox Talk said to have been conducted on 11 September 2015 which had as its topic
“Serious Misconduct in the Workplace” and was intended to emphasise that employees were
not permitted to take away or obtain clients’ property. The practice with respect to Toolbox
Talks was that a sheet was prepared which identified various topics and posed questions for
which a space was given to handwrite an answer. There were further spaces at the foot of the
sheet for employees to write and sign their names to signify that they had participated in the
Toolbox Talk. Mr Shao would take Mr Belleza through the sheet for each planned Toolbox
Talk and explain to him what was desired to be communicated to the cleaners. Mr Belleza
was then meant to conduct the Toolbox Talk with the cleaners, fill out the answers on the
sheet during the course of the discussion, and then have the employees sign it.
[11] Mr Bista’s evidence was that the Toolbox Talks did not actually occur, and while he
was employed by Glad the practice was that Mr Belleza or another supervisor, Dario, would
simply leave the blank sheets for the employees to sign. He provided a large number of
Toolbox Talk sheets in which the answers had not been filled in but which had been signed by
the employees to support his position. He said that he did not participate in any Toolbox Talk
on 11 September 2015. Although the copy of the Toolbox Talk sheet for that date provided by
Glad to the Commission was filled in, Mr Bista’s evidence was that it was not filled in when
he signed it.
[12] Mr Belleza’s evidence about this was somewhat vague. It was at least conceded by
him that he was not always able to conduct the Toolbox Talks with the cleaners together, and
he had no personal recollection of conducting the alleged Toolbox Talk on 11 September
2015.
[13] I accept Mr Bista’s evidence about this, corroborated as it was by the signed but
otherwise blank Toolbox Talk sheets. However, although this evidence indicated a significant
deficiency in Glad’s procedures (particularly as a number of the Toolbox Talks concerned
health and safety matters), it is not particularly relevant to the outcome of this matter.
Relevantly, the sheet for the Toolbox Talk meant to be conducted on 11 September 2015 only
contained the question: “In any circumstance can client property be taken away or obtained
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by an employee?”. Mr Bista properly accepted that he was fully aware that he was not
permitted to steal the property of Glad’s clients or their tenants, regardless of what the
Toolbox Talk sheet said.
[14] Mr Bista’s evidence, which I accept, was that he had a good rapport with the various
tenants in the office block, and persons working there would often have a chat with him. This
extended to the staff members who worked for CMC Markets, with whom Mr Bista had a
good relationship. He said that he had been told by CMC Markets staff while performing his
duties that he was welcome to have a cup of coffee. Mr Bista described one occasion in
particular when there was a spread of food and beverages on a table in CMC Markets’
kitchen, and a staff member invited him to have a cup of coffee or some food, saying “You
work here too”.
[15] Notwithstanding this, Mr Bista’s evidence was that there was only one occasion prior
to the incident on 12 January 2016 when he actually consumed a cup of coffee at CMC
Markets’ tenancy. He said that in about November 2015 at about 6.30pm, he and Mr Belleza
were asked to attend to a cleaning issue on Level 8. They accessed the level using Mr Bista’s
swipe card. Mr Belleza then suggested that they make themselves a cup of coffee in CMC
Markets’ kitchen. They then made themselves cups of coffee, which they consumed.
[16] Mr Belleza gave quite different evidence of a coffee-drinking incident which he
witnessed. In his statement of evidence he said that approximately a year ago he had looked
for Mr Bista and another cleaner, Mr Bijender, and had found them in the Level 13 kitchen
(which was also part of CMC Markets’ tenancy). He observed Mr Bista and Mr Bijender
making coffee using the coffee machine there, and he was offered a coffee. His evidence was
that he said to Mr Bista and Mr Bijender “we will be in trouble”, and after Mr Bista replied “it
will be OK, no worries, have been working long time here” he said words to the effect of
“don’t do it anymore”.
[17] However a significant problem emerged in Mr Belleza’s account when he gave oral
evidence. He admitted to something that he had entirely omitted from his witness statement,
namely that when he was offered a cup of coffee by Mr Bista and Mr Bijender, he had
accepted, and had then consumed a cup of coffee with them. That being the case, it makes it
literally nonsensical that Mr Belleza had then told them “don’t do it anymore”, and Mr
Belleza’s general credibility is severely diminished by his omission of this critical detail from
his witness statement. Mr Bista denied this incident occurred in the way described.
[18] I am inclined to the view that the coffee-drinking incident described by Mr Belleza is a
distorted version of the incident described by Mr Bista as having occurred in November 2015,
but it is not possible to make a definitive finding about this. However two firm findings can
be made. First, Mr Belleza’s evidence that he said to Mr Bista “don’t do it anymore” in
relation to coffee drinking at CMC Markets is rejected. I find this did not happen. Second, on
at least one occasion Mr Belleza joined with Mr Bista in drinking a cup of coffee in CMC
Markets’ kitchen. That can only have encouraged Mr Bista to believe that it was acceptable to
avail himself of a cup of coffee in CMC Markets’ kitchen.
[19] The incident which led to Mr Bista’s dismissal occurred, as earlier stated, on 12
January 2016. Mr Bista was due to commence work at 6.30pm. He arrived for his shift early,
at about 5.45pm, as did Mr Bijender. Mr Bista then suggested that they should have a cup of
coffee while waiting for their starting time. They then caught the elevator to CMC’s premises
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on Level 13, and accessed the premises using Mr Bista’s swipe card. They proceeded to the
kitchen where they made themselves a cup of coffee using the coffee machine. There were
also two CMC staff members present who were also making coffee, and Mr Bista and Mr
Bijender had a brief and friendly conversation with them. The staff members did not object to
him making the coffee, nor did they otherwise make any comment about it. Having regard to
this and the earlier circumstances described in paragraphs [14]-[18] above, I find that Mr
Bista held the belief at the time that he had permission to make himself a cup of coffee, and
that there was a sound objective basis for this belief.
[20] Mr Bista and Mr Bijender then walked to the lifts with their cups of coffee (in paper
cups). By this time it was about 6.00pm. They were accosted by a female member of CMC
Markets who Mr Bista had not encountered before. It may be inferred from later events that
this was Ms Trudy Turnbull, the Office and Facilities Manager of CMC Markets. On Mr
Bista’s evidence, which I accept, she asked them “Where did you get the coffee?” Mr Bista
answered that he had got it “From inside”, and when she asked him how he got inside, he
explained that he had an access key (that is, a swipe card). Ms Turnbull then said “You are not
allowed to make coffee”, to which Mr Bista replied “We are sorry, we did not intentionally
want to upset you. We did not know we were not allowed to”. She replied “Okay”, and Mr
Bista’s impression was that she had accepted his apology and this would be the end of the
matter. He and Mr Bijender took the lift down to the loading dock where the cleaner’s office
was located and drank their coffee while waiting for the time to start work.
[21] However this was not the end of the matter. Ms Turnbull rang Mr Shao and reported
what happened, and requested that Mr Bista and Mr Bijender be removed from cleaning
duties at CMC Markets. Mr Shao rang Mr Belleza about what had happened, which caused
Mr Belleza to speak to Mr Bista and Mr Bijender about the incident. They gave differing
accounts of this conversation. What occurred in the conversation is of no moment except that,
on either version, Mr Bista and Mr Bijender readily admitted to taking a cup of coffee from
CMC Markets’ kitchen. They started their shift as normal at 6.30pm, and finished it without
incident.
[22] However the issue rapidly escalated the following day. Mr Shao raised Ms Turnbull’s
complaint with Glad’s Human Resources department the next day, and was directed to
suspend Mr Bista and Mr Bijender with pay3 and require them to attend a meeting with
Human Resources the following day. Mr Shao communicated this to Mr Bista at about
midday.
[23] Mr Bista attended the meeting as directed the following day (14 January 2016)
accompanied by Mr Rizwanul Chowdhury, an official of his union, United Voice. Glad was
represented at the meeting by Ms Sarah Moody and Mr Giovanni Villella, who were both
from Glad’s Human Resources department. Mr Bista, who was the only person who attended
the meeting who gave evidence, said that the meeting began with him being asked why he had
obtained a cup of coffee even after being informed at the Toolbox Talk that such conduct was
not permitted. Mr Bista explained that the Toolbox Talk had never occurred, and further
explained that he had previously had a cup of coffee with Mr Belleza at CMC Markets and
had previously been told by CMC Markets staff that it was permissible for him to have a cup
of coffee. He apologised for the misunderstanding and any trouble he had caused, and pleaded
that he not be dismissed.
3 Although in fact Mr Bista was never paid for 13 January 2016.
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[24] All of this was to no avail. His explanations and apology were not accepted, and he
was informed that he was dismissed forthwith for serious misconduct. Mr Bijender was
subsequently also dismissed.
[25] As it transpired, Ms Turnbull, obviously still sorely aggrieved at the sight of two
cleaners drinking CMC Markets’ coffee, had sent an email at 9.46am on 13 January 2016 to
Mr Perfecto Mendoza, a Facilities Manager at Investa, complaining about the incident. Her
email stated as follows:
“FYI, last night at approximately 6:00pm, I discovered two of Glad’s cleaners inside
our level 13 tenancy (client reception area), helping themselves to coffee from our
Nespresso machine. I happened upon them by chance. This concerned me for the
following reasons:
The cleaners had not asked if they could obtain coffee from our tenancy. I don’t
begrudge anyone a cup of coffee, but not without my knowledge.
Only one man could be identified as a Glad cleaner, as he was wearing a Glad
shirt. I would have thought all Glad staff should, at the very least, have a Glad
uniform for identification purposes. Should they also have been wearing some
form of photo ID?4
The two men had obviously come into our tenancy with the express purpose of
getting coffee, as I later found them in Lees Court5, drinking coffee and having a
cigarette. I find it totally inappropriate for cleaning staff to be in our tenancies for
any other purpose than to provide contracted cleaning services.
I contacted Lance Shao last night and informed him of the situation, which he stated
he would “…deal with”. After further consideration, it would be appreciated if you
could ensure the two cleaners concerned do not have any further access to our
tenancies. Unfortunately, they have created an element of distrust in my mind and I
would feel most uneasy about having them cleaning (often unsupervised) in our
tenancies.
I trust you will do your utmost to resolve this issue ASAP. Please contact me if you
require any additional information or clarification.”
[26] This email was only forwarded to Mr Shao by Mr Mendoza on 15 January 2016 at
11.41am, after the dismissal had already taken effect. Glad did not send a letter confirming
the dismissal and the basis for it until 22 January 2016. That letter described the procedure by
which the dismissal was effected, the facts of the incident on 12 January 2016, and the
“Findings” that were made by Glad. The factual summary contained the following sentence:
“Neither the coffee nor the paper cup it was made in were the property of yourself or Glad
Group”. The “Findings” were as follows:
“As discussed during the meeting, your conduct during that incident:
4 Glad made it clear that Ms Turnbull’s complaint about uniforms and identification was not a matter of concern to it.
5 Lees Court is the laneway behind the building at 130 Pitt Street. The entrance to the loading dock is on this laneway.
[2016] FWC 3009
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caused a serious and imminent risk to the reputation, viability or profitability of
the Employer’s business in that:
The tenant has expressed distrust towards Glad Group Cleaners; and
Glad Group’s viability depends on its reputation when tendering for
contracts.
was conduct in the course of your employment engaging in theft, and in the
circumstances your continued employment during a notice period would be
unreasonable.
We consider that your actions constitute serious misconduct warranting summary
dismissal.”
[27] The letter was not signed. Beneath the valediction were merely stated the name and
contact details of Glad’s Human Resources department. The maker of the decision to dismiss
Mr Bista was never identified by Glad although, unless the meeting on 14 January 2016 was
merely a charade, it must have been Ms Moody and/or Mr Villella.
[28] On 23 February 2016 Investa sent an email to various persons at Glad which identified
its subject in the header as “Breach Notice for Glad Commercial Cleaning”. The text of the
email said “This is a performance advice notice from Investa” and gave the following
description of the issue:
“The Office and Facilities Manager (Trudy Turnbull) of CMC Market on Level 8 and
13 at 130 Pitt Street reported that Bijender Bijender and Raj Bista were seen making
coffee from the tenants Nespresso Machine. Both cleaners have no permission from
the tenants to do so.”
[29] A follow-up email from Investa later that day requested the issue be addressed and a
response provided. Mr Shao sent an email in reply the same day stating “This incident was
happened on 13.01.2016 [sic] and both cleaners have been terminated on 15.01.2016”.
[30] Since his dismissal Mr Bista had been attempting to find new employment in both his
professional field in Information Technology and as a cleaner. In respect of the former area,
Mr Bista’s evidence was that his visa restriction of 20 hours’ work per week is proving an
impediment to finding work. He had made formal applications for eight cleaning jobs,
without success, and had also sought cleaning work through “word of mouth” with persons he
knows in the industry, also without success. As at the date of hearing, he remained
unemployed.
[31] Mr Bista said that, as an international student, his dismissal has placed him in a
precarious position. His ability to fund his studies and meet his living expenses such as rent,
credit card repayments, household bills and health insurance has been jeopardised, and he is
reliant on his wife’s modest income as a student nurse in aged care. His evidence was also
that his dismissal has affected his self-esteem and confidence, and that having been dismissed
on the basis that he was said to be a thief, he is concerned for his reputation and future
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employment prospects. He was also concerned that by inviting Mr Bijender to have a coffee
with him, he had caused Mr Bijender’s dismissal.
[32] Glad asserted in its submissions that at the time of the dismissal its contract with
Investa had expired but continued on a rolling 30-day basis (that is, it was terminable on 30
days’ notice), and was to go to public tender. This was not contradicted by Mr Bista, and I
accept that this was the case. Glad still held the contract as at the date of the hearing.
Was Mr Bista’s dismissal unfair?
[33] Section 387 of the FW Act requires the Commission, in considering whether a
dismissal was harsh, unjust or unreasonable, to take into account a number of matters
specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in
relation to Mr Bista’s application in turn below.
Paragraph 387(a)
[34] As has earlier been made clear, the basic facts of the conduct which caused Mr Bista
to be dismissed - namely making a cup of coffee at the premises of a tenant shortly before
commencing his shift - are not in dispute. However merely establishing the factual basis for
the reason for dismissal does not by itself demonstrate that it was a valid reason. It must, as
s.387(a) makes clear, be a valid reason for dismissal - that is, dismissal must be a justifiable
response to the relevant conduct or issue of capacity. Factually-established conduct which
might, for example, justify the issue of a reprimand or a warning may not necessarily justify
dismissal.
[35] In the decision of the Industrial Relations Court of Australia (Northrop J) in
Selvachandran v Peteron Plastics Pty Ltd6 the meaning of the expression “valid reason” in
s.170DE(1) of the Industrial Relations Act 1988 was considered. The Court said:7
“In its context in subsection 170DE(1), the adjective “valid” should be given the
meaning of sound, defensible or well founded. A reason which is capricious, fanciful,
spiteful or prejudiced could never be a valid reason for the purposes of subsection
170DE(1). At the same time the reason must be valid in the context of the employee's
capacity or conduct or based upon the operational requirements of the employer's
business. Further, in considering whether a reason is valid, it must be remembered that
the requirement applies in the practical sphere of the relationship between an employer
and an employee where each has rights and privileges and duties and obligations
conferred and imposed on them. The provisions must “be applied in a practical,
commonsense way to ensure that” the employer and employee are each treated fairly,
see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, 5 May 1995 (1995) 60
IR 1, when considering the construction and application of section 170DC.”
[36] Notwithstanding that the statutory provisions considered in Selvachandran were quite
different from those relating to unfair dismissal in the FW Act (most notably, s.170DE(2)
provided that “A reason is not valid if, having regard to the employee's capacity and conduct
and those operational requirements, the termination is harsh, unjust or unreasonable”), the
6 (1995) 62 IR 371
7 Ibid at 373
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above passage has continued to be treated as applicable to the interpretation and application of
s.387(a).8
[37] There is nothing in the reasoning in Selvachandran to suggest that some minor failing
or trivial misdemeanour on the part of the employee could constitute a valid reason for
dismissal simply because it was proven to have occurred. Dismissal on such a basis could not
be said to be sound, defensible or well founded, and to approach the concept of a “valid
reason for dismissal” otherwise would not constitute a practical and commonsense way to
ensure that employers and employees are treated fairly.
[38] This was made clear in the decision of the Federal Court Full Court in Edwards v
Giudice,9 which involved consideration of the need to make findings and give reasons in
relation to a decision made under s.170CG(3) of the Workplace Relations Act 1996 (WR Act).
Section 170CG(3) was in terms similar to the current s.387, except that it did not include the
consideration found in paragraphs (d), (f) and (g) of s.387. In relation to s.170CG(3)(a), the
majority judgment of Moore J said (underlining added):
“[6] Paragraph (a) speaks of “whether there was a valid reason ... related to the ...
conduct of the employee”. The paragraph requires consideration of the validity of the
reason when the reason is, relevantly, based on conduct of the employee. It is, in my
opinion, difficult to avoid the conclusion that the Commission is obliged in such
circumstances to investigate in the inquiry process contemplated by s 170CG(3)
whether the conduct relied on occurred as a necessary step in the process of
determining whether a valid reason existed.
[7] The reason would be valid because the conduct occurred and justified termination.
The reason might not be valid because the conduct did not occur or it did occur but did
not justify termination. An employee may concede in an arbitration that the conduct
took place because, for example, it involved a trivial misdemeanour. In those
circumstances the employee might elect to contest the termination in the arbitration on
the basis that the conduct took place but the conduct did not provide a valid reason and
perhaps also by relying on the other grounds in paras (b) to (e)...”
[39] The other member of the majority, Marshall J, similarly referred to the need, in
relation to an employee dismissed for reason of misconduct, to make findings clearly
identifying any misconduct which is found to have occurred and its gravity.10
[40] Edwards v Giudice is, in my view, clear authority for the proposition that the
consideration of whether there is a valid reason for dismissal requires, where the relevant
conduct upon which the dismissal proceeded is found to have occurred, an assessment of
whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a
sound, defensible or well- founded response to the conduct. Although Edwards v Giudice was
decided under a different statute, the fact that s.387 of the FW Act is a highly similar
provision to s.170CG(3) and is contained in the successor unfair dismissal regime in the FW
Act means that it should be treated as a binding authority.
8 See for example BlueScope Steel (AIS) Pty Ltd v Agas [2014] FWCFB 5993 at [63]
9 (1999) 94 FCR 561
10 Ibid at 572
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[41] It is well established that a dismissal for misconduct may be found to be harsh on the
basis that the sanction of dismissal is a disproportionate penalty to the gravity of the
misconduct.11 The issue of proportionality is usually considered having regard to all the
relevant circumstances of the dismissed employee and his or her conduct, as was articulated
by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia
Post,12 a case which concerned a breach of a policy concerning pornography in the workplace:
“[60] It needs to be stated clearly that a determination of whether a given dismissal for
the sending or receipt and storage of pornography is disproportionate to the
misconduct such as to be ‘harsh, unjust or unreasonable’ involves a consideration of
all of the circumstances and a weighing of the gravity of the misconduct against the
various factors that mitigate against dismissal as a proportionate (fair) response to the
misconduct, including, of course, factors subjective to the particular employee (such as
age, length of service, service record etc) to determine whether those matters in
combination rendered dismissal a disproportionate penalty for the misconduct such
that it ought properly be characterised as ‘harsh’ notwithstanding the existence of a
‘valid reason’.”
[42] There is some disagreement in the authorities concerning whether proportionality (in
the sense discussed in the above passage) arises for consideration in relation to whether there
is a valid reason for dismissal (under s.387(a) of the FW Act or s.170CG(3)(a) of the WR
Act) or only as a matter considered to be relevant (under s.387(h) of the FW Act or
s.170CG(3)(e) of the WR Act).13 However the point discussed by Moore J in Edwards v
Giudice in the passage earlier quoted was not concerned with proportionality of dismissal in
this sense, where the gravity of the misconduct is weighed against a range of other potentially
mitigating factors. Rather it was concerned with whether the conduct in question, considered
in isolation, was intrinsically capable of constituting a valid reason for dismissal if it only
involved a minor misdemeanour.
[43] In Mr Bista’s case, I consider that the conduct upon which his dismissal was based
was insignificant to the extent that it could not constitute a sound, defensible or well-founded
reason for his dismissal. In my view, any reasonable person would regard his conduct as
involving no more than a trivial misdemeanour. Glad characterised his conduct as being an act
of theft. On one view one could attempt to analyse that characterisation from the point of view
of the criminal law, which would necessitate a determination as to whether the required
elements of actus reus and mens rea are established on the evidence. I prefer to take a more
commonsense approach to Glad’s characterisation of Mr Bista’s conduct. In my view
describing his conduct as “theft” verges on an abuse of the English language as used and
understood by the ordinary person, having regard to the following circumstances:
Mr Bista believed at the time he engaged in the conduct that he had permission to
make himself a coffee at the CMC Markets’ premises, and there was an objective
basis for that belief. He had previously been invited to do so by staff members at
11 See Byrne v Australian Airlines Ltd [1995] HCA 24, (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ
12 [2013] FWCFB 6191, (2013) 238 IR 1
13 See e.g. Schliebs v Ricegrowers Co-operative Limited PR908351, [2001] AIRC 887, 31 August 2001 at [14]-
[17] and Walsh v Australian Tax Office [2005] 141 IR 226 at [17]; cf. Parmalat Food Products Pty Ltd v Tran [2016]
FWCFB 1199 at [8]-[9]
[2016] FWC 3009
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CMC Markets, and he had previously shared a coffee with his own supervisor, Mr
Belleza.
On 12 January 2016 he had actually made the coffee in front of two CMC
Markets employees, and had chatted with them while doing so. Nobody had
objected to what he was doing. He had already made the coffee by the time he had
the misfortune to run into Ms Turnbull.
The “property” in question consisted of the coffee, hot water and a paper cup.
They were all consumable items. Their collective value would have been well
under one dollar.
When confronted by Ms Turnbull, Mr Bista immediately apologised and
explained that he did not know he was not allowed to make a cup of coffee. Ms
Turnbull did not demand the return of the “property”, but appeared (at the time) to
accept the apology and let Mr Bista (and Mr Bijender) go on their way down to
the loading dock area to drink their coffee.
In her written complaint about the incident, which presumably reflected her earlier
verbal complaint to Mr Shao, Ms Turnbull did not allege that there had been any
“theft”. Her concern was about a lack of permission, saying she otherwise did not
begrudge anybody a cup of coffee. But, as earlier stated, Mr Bista was operating
under the belief that he had permission.
[44] Glad’s general approach to this conduct admits of no bottom limit below which the
notion of dismissal for “theft” becomes, in commonsense terms, an absurdity. Equally the
consumption of a glass of water drawn from a client’s tap on a hot day would also constitute
theft and the use of a client’s toilets to answer an urgent call of nature without express prior
permission would be a trespass. It is an approach which, for the reasons stated, I reject.
[45] Glad also gave as a reason for the dismissal that Mr Bista’s conduct involved “a
serious and imminent risk to the reputation, viability or profitability of the Employer’s
business”. The validity of a reason for dismissal is to be assessed by reference to facts in
existence at the time of the decision to dismiss (whether or not those facts were known to the
employer at that time).14 Beyond the mere fact of the complaint from Ms Turnbull, there was
nothing as at 14 January 2016 to suggest that Mr Bista’s conduct had given rise to any such
risk to the business. The mere fact that Glad’s contract with Investa, having expired, was on a
rolling monthly basis and was to undergo a public tender, did not demonstrate that such a risk
actually existed. Ms Turnbull’s complaint, which referred to “an element of distrust” having
arisen in her mind, was directed at Mr Bista (and Mr Bijender) personally rather than at Glad.
Even if the effect of her complaint (which was, I consider, expressed in terms completely
disproportionate to the actual conduct being complained of) was that Mr Bista had to be
removed from working at 130 Pitt Street, that did not provide a valid reason for dismissal
because Mr Shao’s evidence was that it would not have been difficult to relocate Mr Bista to
another Sydney CBD contract site.
[46] Even if the breach notice sent by Investa subsequent to the dismissal is taken into
account, that does not demonstrate the existence of the alleged risk. A breach notice under a
14 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14
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commercial contract is usually issued for the purpose of giving the contracting party to which
it is issued the opportunity in a specified period of time to rectify the identified breach. There
is nothing in the notice which suggests that the breach could only be rectified by Mr Bista’s
dismissal. If there had in truth been any breach, there may have been a number of ways in
which it could have been rectified. This may have included transferring Mr Bista to another
site, or even simply instructing Mr Bista and all other staff not to access CMC Markets’
premises for the purpose of making coffee. There was certainly no evidence to suggest that
steps such as these were not available. The terms of the breach notice, and the fact that it was
not sent until 42 days after the incident, does not suggest that Investa regarded it as something
which put Glad’s contract into jeopardy. Glad still held the contract at the time of the hearing,
some four months later.
[47] I consider that the real issue raised by Ms Turnbull’s complaint, which did not actually
form part of Glad’s reasons for dismissal, was that Mr Bista had accessed CMC Market’s
premises using his swipe card a short period before the time he was actually due to start work.
That might have been characterised as an unauthorised use of the swipe card. However, even
if this had been a reason for dismissal, I would not have found it to be a valid reason. In the
circumstances in which it occurred, while such conduct may have merited a reprimand or
perhaps a transfer to another site, it was simply too insignificant in nature to constitute a valid
reason for dismissal.
[48] I find that there was no valid reason for Mr Bista’s dismissal related to his conduct.
Paragraph 387(b)
[49] Mr Bista was notified of the reason for his dismissal at the meeting on 14 January
2016.
Paragraph 387(c)
[50] Mr Bista was given an opportunity to respond to the reason relating to his conduct at
the meeting on 14 January 2016.
Paragraph 387(d)
[51] There was no refusal by Glad to allow Mr Bista to have a support person at the
meeting on 14 January 2016. He was able to be represented at this meeting by an official from
his union, United Voice.
Paragraph 387(e)
[52] Mr Bista was not dismissed for unsatisfactory performance, so the issue of whether he
had any prior warnings for unsatisfactory performance does not arise.
Paragraphs 387(f) and (g)
[53] Glad is a reasonably large employer with dedicated human resource management
specialists and expertise, and the procedures it followed in effecting Mr Bista’s dismissal
reflected that fact.
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Paragraph 387(h)
[54] I consider that the following matters are relevant and all favour the conclusion that Mr
Bista’s dismissal was harsh, unjust and unreasonable:
(1) Prior to the incident on 12 January 2016, Mr Bista had an unblemished
employment record, and was recognised by his manager, Mr Shao, as being a
person who attended to his duties professionally and diligently.
(2) Mr Bista was at all times completely honest about what had occurred on 12
January 2016, and apologised for his conduct immediately upon being made
aware that it was considered to be inappropriate.
(3) Faced with Ms Turnbull’s request for Mr Bista to be removed from the task of
cleaning CMC Markets’ premises as a consequence of what I have earlier
characterised as a trivial misdemeanour, no-one at Glad made any attempt to
assuage her concern or seek to offer an alternative to this drastic course of
action. For example, Glad could have offered her an undertaking that Mr Bista
would not in future be permitted to access any part of CMC Markets’ tenancy
apart from the bathrooms he was required to clean (which were not within the
secured part of its tenancy). I am confident that any reasonable person would
have accepted an accommodation of this nature.
(4) In any event, even if the result of Ms Turnbull’s complaint was that Mr Bista
had to be removed from cleaning duties at 130 Pitt Street (noting Mr Shao’s
evidence that it was not possible to re-arrange the duties at the site so that Mr
Bista could continue to perform work on all floors apart from the CMC
Markets’ floors on levels 8 and 13), there would have been no particular
difficulty in moving him to another site.
(5) The personal and financial consequences of the dismissal for Mr Bista, which
have earlier been described, have been very serious in nature.
(6) The consequences for Mr Bista have been exacerbated by Glad’s baseless
characterisation of Mr Bista’s conduct as criminal in nature. It is patently
obvious from his evidence that Mr Bista is an honest and honourable man. As
an international student with limitations on the hours he can work and subject
to a requirement that he be able to support himself financially, he is a person in
a vulnerable position in the Australian labour market. The description of him as
a thief will have gravely affected his reputation and compromised his capacity
to obtain future employment.
Conclusion
[55] Having regard to all the above matters, I find that Mr Bista’s dismissal was unjust and
unreasonable because, for the reasons I have stated, there was no valid reason for his
dismissal. It was also harsh because of the mitigating and other relevant factors I have taken
into account under s.387(h).
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[56] Even if I had found that there was a valid reason for the dismissal, I would still have
found the dismissal to be harsh because I consider that the relevant matters I have taken into
account under s.387(h) far outweigh the seriousness of the conduct which was the reason for
the dismissal.
Remedy
[57] Reinstatement is the primary remedy provided for in respect of unfair dismissals under
the FW Act in the sense that there must be a finding that reinstatement is inappropriate before
any power exists to make an order for compensation.15 Accordingly, in respect of remedy, the
primary issue which must be considered is whether it would be appropriate to make an order
for Mr Bista’s reinstatement.
[58] I do not consider that the conduct which caused Mr Bista’s dismissal in any way
disbars him from future employment with Glad. It was an insignificant matter, and in any case
Mr Bista immediately acknowledged the concern it had caused to a staff member of a tenant
and apologised for it. I am confident that, if reinstated, Mr Bista will not engage in any
repetition of the conduct which caused his dismissal (insignificant as it was). He is an
intelligent man who undoubtedly would avoid any future risk to his continuing employment.
[59] Glad adduced no evidence which demonstrated that a restoration of a viable working
relationship was not possible. Indeed, such evidence as it did adduce on the question of
remedy demonstrated the contrary proposition. When its representative asked Mr Shao how
he felt about the prospect of Mr Bista, having been found to have committed misconduct,
returning to work, Mr Shao’s answer was that he was confident that Mr Bista would be able to
perform his duties professionally and diligently. I accept that evidence.
[60] Mr Bista’s position under his contract of employment was, as discussed above, simply
that of a cleaner. His position was not confined to the performance of duties at 130 Pitt Street.
Therefore, even if he cannot be returned to 130 Pitt Street because of any continuing difficulty
with Investa or CMC Markets, that is not an impediment to reinstatement. On the basis of Mr
Shao’s evidence, there would be no real difficulty in placing him at another site. Having
regard to his failure to obtain alternative employment to date, I therefore consider that it is
appropriate to order, pursuant to s.391(1) of the FW Act, that Mr Bista be reinstated to the
position of cleaner he held immediately before his dismissal.
[61] I also consider it appropriate that an order be made under s.391(3) of the FW Act that
Glad pay Mr Bista the amount of the remuneration lost as a result of his dismissal. Such an
order is appropriate because Glad dismissed Mr Bista without a valid reason to do so and
thereby caused him monetary loss. I am satisfied that Mr Bista has made reasonable attempts
to mitigate his loss by seeking alternative employment. The evidence was that Mr Bista was,
immediately before his dismissal, earning a gross amount of $1020.80 per fortnight. The
dismissal occurred 18 weeks ago. The monetary amount to be paid to him will therefore be
$9187.20, less applicable taxation. For the same reasons, I also consider it appropriate to
make an order under s.391(2) to maintain the continuity of Mr Bista’s employment.
15 Melanie Millington v Traders International Pty Ltd [2014] FWCFB 888 at [66]
[2016] FWC 3009
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[62] A separate order16 will issue giving effect to this decision.
VICE PRESIDENT
Appearances:
H. Pararajasingham and T. Craven of United Voice for R. Bista
S. Moody and A. Petrie for Glad Group Pty Ltd t/a Glad Commercial Cleaning
Hearing details:
2016.
Sydney:
12 May.
Printed by authority of the Commonwealth Government Printer
Price code C, PR580316
16 PR580445
OF THE FAIR WORK MISSION THE
