1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Joshua Jimenez
v
Accent Group T/A Platypus Shoes (Australia) Pty Ltd
(U2015/12548)
COMMISSIONER CAMBRIDGE SYDNEY, 5 AUGUST 2016
Unfair dismissal - summary dismissal - serious misconduct - primary factual finding proven
upon requisite standard - valid reason for dismissal - significant procedural errors made by
employer - dismissal unjust and unreasonable - limited compensation provided.
[1] This matter involves an application for unfair dismissal remedy made pursuant to
section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 30
October 2015. The application was made by Joshua Jimenez (the applicant) and the
respondent employer is Accent Group T/A Platypus Shoes (Australia) Pty Ltd (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 9
October 2015. Consequently, the application was made within the 21 day time limit
prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before
the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 9 and 10
March 2016. The Hearing involved the taking of evidence, with the final written submissions
made in the matter on 9 May 2016.
[4] At the Hearing, the Commission granted permission under s. 596 of the Act for the
Parties to be represented by lawyers or paid agents. The applicant was represented by Mr B
Eurell, barrister, instructed by Barakat Lawyers. Mr Eurell called the applicant and two other
witnesses who provided evidence in support of the unfair dismissal claim. The employer was
represented by Mr A Barwick, solicitor, from Williamson Legal. Mr Barwick called three
witnesses who provided evidence on behalf of the employer.
Background
[5] The applicant had worked for the employer for about 11 months. The applicant was
initially employed as an Assistant Store Manager, and in August 2015 he was formally
promoted to the position of Store Manager. The applicant worked at the employer’s retail
premises located in the Sydney suburb of Blacktown.
[2016] FWC 5141 [Note: An appeal pursuant to s.604 (C2016/5120) was
lodged against this decision - refer to Full Bench decision dated 21 October
2016 [[2016] FWCFB 7201] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB7201.htm
[2016] FWC 5141
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[6] Relevantly, the work of the applicant in both the Assistant Store Manager and then the
Store Manager position involved, inter alia, various supervisory and managerial
responsibilities associated with the day to day operation of a retail (shoe) store. The
applicant’s immediate superior was an Area Manager, who reported to the State Manager.
[7] The employer is a business operation of considerable size which incorporates
wholesale, distribution and retailing business operations for various global footwear brands.
The employer operates throughout Australia and New Zealand.
[8] Shortly after the applicant commenced employment, he was required to undertake the
Store Manager role in a relieving capacity when the existing Store Manager was frequently
absent due to illness and other personal factors. The applicant performed his work as Assistant
Store Manager and relieving Store Manager admirably, and following the resignation from
employment of the existing Store Manager, he was formally promoted into that position.
[9] On Friday, 11 September 2015, the applicant was not at work when a customer came
into the Blacktown store with a pair of New Balance brand shoes seeking to exchange them
for a different size. The customer, subsequently identified to be Ms Mann, was attended to by
a shop assistant, Ms Loka. Ms Loka said that Ms Mann told her that she had purchased the
shoes at the store a day or two earlier, but she did not have a sales receipt. Ms Loka searched
the store’s computerised records but could not find a record of any sales transaction for the
New Balance shoes.
[10] Ms Loka made further inquiries of both Ms Mann and the store’s stock inventory.
These inquiries revealed that Ms Mann said that she had paid cash for two pairs of New
Balance shoes which the store’s stock inventory still showed as being on hand or in stock.
Further, Ms Mann confirmed that she had paid cash to the applicant and taken the shoes
without obtaining a receipt. Ms Loka told Ms Mann that she could not undertake the exchange
of the shoes, and that she should return when the applicant would be at work on the following
Sunday, 13 September.
[11] After Ms Mann had left the store, Ms Loka telephoned the applicant and told him
about the situation that had arisen with Ms Mann seeking to exchange the New Balance shoes
for a different size. The applicant indicated that he was aware of the circumstances
surrounding the purchase of the New Balance shoes by Ms Mann, and that he would deal with
the matter.
[12] On 17 September 2015, Ms Loka checked the store’s stock inventory and the history
of sales transactions. These records revealed that the two pairs of New Balance shoes which
had been sold to Ms Mann remained in the inventory as being in stock, and there was no sales
transaction record for the shoes which Ms Loka described as being “missing”.
[13] On the following day, Friday, 18 September 2015, Ms Loka again checked the store’s
stock inventory, and on this occasion the stock levels and the stock on hand matched. Ms
Loka checked the sales transaction records and discovered a transaction record from the
previous day which showed that the applicant had conducted a sale of the two pairs of New
Balance shoes, which had included the application of a 20% immediate family discount.
[14] Ms Loka was concerned about the delay with the processing of the sale of the New
Balance shoes and then the subsequent application of the family discount to a non-family
[2016] FWC 5141
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customer. Ms Loka decided to telephone the employer’s State Manager, Ms Reis, and inform
her of the circumstances surrounding the delayed and then discounted sale of the New
Balance shoes. Ms Reis was concerned about the apparent irregularities with the delayed and
discounted sale of the New Balance shoes, and she advised Ms Loka that she would
immediately travel to the store and discuss the matter further with her.
[15] Ms Reis contacted the Area Manager, Ms Shakra, and briefly advised her of the
circumstances of the sale of the New Balance shoes as reported by Ms Loka. Ms Shakra was
instructed to travel to the Blacktown store to meet with both Ms Reis and Ms Loka. Once the
State Manager, Ms Reis, and the Area Manager, Ms Shakra, arrived at the Blacktown store
they commenced an investigation into the applicant’s conduct involving the sale and
discounting of the New Balance shoes.
[16] The employer’s investigation into the applicant’s conduct surrounding the sale and
discounting of the New Balance shoes extended to a review of CCTV footage which showed
some of the applicant’s interaction with the partner of the customer, Ms Mann, Mr Herning,
who was a friend of the applicant. In addition, Ms Loka conducted a layby stock review and
found that the applicant had an outstanding layby from May 2015 in respect of a pair of
Adidas shoes. Ms Loka discovered that the applicant had taken the Adidas shoes and put his
old Nike shoes in the Adidas box despite the layby having not been finalised.
[17] On Saturday, 19 September 2015, the employer decided to invite the applicant to a
meeting to be held at the employer’s Sydney head office on Monday, 21 September 2015. The
employer’s purpose for the meeting was to confront the applicant with allegations that his
conduct surrounding the sale and discounting of the New Balance shoes, and the removal of
his Adidas shoes on layby, represented serious misconduct involving theft. The employer
deliberately misled the applicant into believing that the meeting arranged for 21 September
would involve him receiving good news, presumably about his performance and the results
for the Blacktown store.
[18] The applicant attended the meeting on 21 September wearing the Adidas shoes that
were on layby. The applicant was abruptly advised that the meeting involved allegations of
theft and fraud regarding the sale/discounting of the New Balance shoes, and his possession
of the Adidas shoes before the layby had been finalised. The applicant was provided with a
letter which set out the allegations that were made against him and which required written
responses to the allegations by noon on the following day, 22 September. The applicant was
also placed on paid suspension from duty.
[19] The applicant requested further time to provide any written response to the allegations
set out in the letter of 21 September. Subsequently, the employer agreed to provide the
applicant with further time before which he was required to formalise any response to the
allegations raised in the letter of 21 September. In addition, the employer raised two further
allegations in correspondence dated 24 September 2015. These additional concerns involved
firstly, the applicant allegedly falsifying the time records for the particular hours that he was
physically attending the Blacktown store, and secondly, an explanation for the applicant
leaving the Blacktown store with four boxes of shoes on 16 September 2015.
[20] On 24 September 2015, lawyers acting on behalf of the applicant requested further
time before which the applicant was required to provide a formal response to what had now
been identified to be five allegations of misconduct. This request was responded to by lawyers
[2016] FWC 5141
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acting for the employer who indicated that the applicant would be provided until 5 pm on 6
October 2015 to respond. Further, the lawyers acting for the employer advised that the
applicant’s paid leave would cease, and that the applicant was placed on unpaid leave from 5
pm on the previous day, until his response was received or by 5 pm on 6 October, whichever
occurred first.
[21] On 6 October 2015, the lawyers then acting for the applicant provided written
responses in respect to the five identified allegations of misconduct. In summary, this
communication informed the employer that the applicant; (1) admitted allegation one
involving the discounting of the New Balance shoes transaction, about which an opportunity
for further explanation was sought; (2) refuted allegation two regarding pocketing of monies
in respect to the sale of the New Balance shoes, but admitted that the exchange of the goods
was delayed; (3) admitted allegation three regarding the layby but indicated that the
arrangement had been approved by his Manager; (4) refuted allegation four regarding any
fraudulent recording of time actually worked; and (5) provided explanation that the four boxes
of shoes were delivered to a customer as part of a customer complaint resolution process.
[22] The employer required the further attendance of the applicant at a meeting held on 9
October 2015 at the offices of the lawyers representing the employer. The applicant attended
this meeting accompanied by a support person, and the employer’s State manager, Ms Reis,
attended together with a lawyer. The initial part of the meeting involved a review of the
applicant’s responses to the allegations of misconduct. Following a break in the meeting, the
applicant was then advised of his summary dismissal, and he was provided with a termination
of employment letter which summarised the five allegations of misconduct made against the
applicant. The letter of dismissal advised that the employer had determined that “adverse
findings” were made in respect of allegations 1 to 4, which it said provided basis for the
summary termination of employment for serious misconduct. The applicant was paid accrued
entitlements and required to settle his outstanding layby account of $366.00.
The Case for the Applicant
[23] Extensive written submissions were provided on behalf of the applicant. In summary,
the submissions made on behalf of the applicant focused upon the evidentiary onus that an
employer must discharge when it implements a summary dismissal for serious misconduct. In
broad terms, it was submitted that the employer had not established, to the requisite standard
of proof, the serious misconduct for which the applicant was summarily dismissed.
[24] It was submitted that it was well-established that in cases of summary dismissal for
serious misconduct, the respondent employer bears the onus to prove that the misconduct had
occurred. Further, according to the submissions made on behalf of the applicant, the standard
of proof that applied was that referred to as the Briginshaw1 civil standard.
[25] It was further submitted that in consideration of the circumstances in this instance, the
alleged serious misconduct of the applicant included the criminal conduct of theft. Therefore,
it was asserted that there was an elevated level of satisfaction required of the decision-maker
because of the serious nature of the alleged misconduct. Accordingly, it was submitted that
the employer needed to discharge the onus of proof such that it was justified in summarily
dismissing the applicant because he had engaged in intentional dishonesty, or what the
employer referred to as the conduct of theft and fraud.
[2016] FWC 5141
5
[26] The applicant’s submissions asserted that the employer had not established that the
applicant had engaged in theft in respect of the sale to Mr Herning of the New Balance shoes.
Further, it was submitted that the applicant had not breached any policy in applying a discount
for a regular customer in respect to the sale of the New Balance shoes. In addition, it was
submitted that the employer had not established that it had a layby policy which was
contravened by the applicant, such that it would constitute misconduct. The applicant also
submitted that the employer had not established that the applicant had not complied with
timekeeping and recording procedures in any manner which represented falsification of the
hours worked by the applicant.
[27] The submissions made on behalf of the applicant also criticised what it described as
the employer’s failure to produce certain records and other documents which were directly
relevant to the determination made that the applicant had committed acts of serious
misconduct sufficient to justify summary dismissal. In this regard, it was submitted that it was
open to the Commission to conclude that the employer’s failure to provide certain material
including CCTV footage from the time of the initial sales event of the New Balance shoes (10
September), and other records or notes made during the interviews with the applicant held on
21 September and 9 October, represented deliberate omissions of material which would have
been adverse to their case.
[28] The applicant’s submissions examined the detailed evidence of the circumstances
surrounding the four allegations of misconduct which the employer relied upon as basis for
the summary dismissal of the applicant. Firstly, in respect to the sale of the New Balance
shoes to Mr Herning, it was submitted that the evidence fell well short of establishing
dishonesty and provided no support for any finding of theft or fraud. Secondly, in respect to
the applicant providing Mr Herning with a family discount for the sale of the New Balance
shoes, it was submitted that the conduct of the applicant, although an undoubted error, could
not be found to be deliberate misconduct aimed at bringing serious detriment to the
employer’s business. Thirdly, the conduct of the applicant in respect to the layby of his
Adidas shoes was submitted to be little more than a minor infraction, and, as he had
previously been given approval by the then Store Manager to wear the shoes that were on
layby, the applicant’s conduct could not amount to serious misconduct. Fourthly, it was
submitted that the evidence did not establish that the applicant was engaged in any wage fraud
in respect to recording his commencement and finishing times but rather, there was evidence
upon which it may be established that the applicant, and other employees, had been
underpaid.
[29] The submissions made on behalf of the applicant strongly criticised various aspects of
the procedure that the employer adopted when dealing with the allegations made against the
applicant, which led to his summary dismissal. It was submitted by the applicant that the
employer had determined to dismiss the applicant before he was given any indication of the
allegations made against him, let alone an opportunity to respond to those matters. It was
submitted that the employer had; failed to make enquiries of various staff members and other
relevant personnel; it deployed deceit against the applicant in order to lure him to the meeting
on 21 September; it failed to keep proper records of its investigation or otherwise refused to
produce them; and, it clearly predetermined the outcome of the investigation before it had
commenced.
[30] The applicant’s submissions also introduced other matters which were said to be
relevant to the alleged unfair dismissal of the applicant. It was asserted that the applicant was
[2016] FWC 5141
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an exceptional performer and that his work record had not been properly considered by the
employer. Further, it was asserted that the applicant’s failures did not amount to serious and
wilful misconduct, and consequently the dismissal as a sanction in response to the applicant’s
failures, was out of all proportion to any offence that the applicant may have committed.
[31] In summary, the submissions made on behalf of the applicant asserted that the
dismissal was unjust or unreasonable and harsh. It was asserted that the dismissal of the
applicant was unreasonable because he was given insufficient notification of the allegations
and lured into a meeting by deliberate deceit on the part of his managers. Further, it was
contended that the dismissal of the applicant was unjust because the evidence did not support
any finding that the applicant had engaged in deliberate criminality, but rather that he had
failed to process funds in a manner which represented an aberration. It was further submitted
that the dismissal of the applicant was harsh because the applicant was a young man at the
beginning of his career, and that the employer’s findings of serious misconduct impacted on
his prospects for obtaining any further employment at an equivalent grade.
[32] The applicant sought relief for his alleged unfair dismissal in the form of an Order for
reinstatement or alternatively Orders for payment of compensation by way of the maximum
amount available.
The Case for the Employer
[33] The employer provided extensive written submissions which strongly contended that
the dismissal of the applicant was not unfair. The substantive submissions made on behalf of
the employer were constructed by reference to the various factors contained in s. 387 of the
Act.
[34] The employer submitted that it had a valid reason for the dismissal of the applicant.
The valid reason for the dismissal of the applicant was examined in detail by reference to; (a)
the applicant’s conduct in respect to the sale of the New Balance shoes to Mr Herning; (b) the
applicant’s breach of the employer’s layby policy; and, (c) the applicant’s non-compliance
with timekeeping requirements and recording.
[35] The employer’s submissions examined the evidence of the applicant’s conduct in
respect to the sale of the New Balance shoes to Mr Herning, and asserted that the applicant
had failed to properly process the transaction at the time of sale, (10 September 2015),
including permitting the stock to leave the store without a receipt or other appropriate
recording, and further, that the applicant breached the employer’s policy and direction in
relation to immediate family discounts when he provided the family discount of $52 when the
sale of the New Balance shoes was eventually recorded on 17 September 2015.
[36] According to the submissions made on behalf of the employer, the actions of the
applicant in respect to the sale and the subsequent discounting of the New Balance shoes
amounted to serious misconduct. The submissions of the employer noted that the applicant
had been alerted to the irregularity of the sales transaction when he was contacted by Ms
Loka. However, the applicant failed to advise any of his senior management of the
circumstances in an open and honest manner, but instead he eventually processed the sale and
applied a discount to which the customer was not entitled.
[2016] FWC 5141
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[37] The employer submitted that the applicant’s explanations for his actions both at the
time of the cash sale to Mr Herning on 10 September, and subsequently on 17 September,
when he eventually recorded the sale, were not credible. It was submitted that the applicant’s
actions were marked by subterfuge and concealment, particularly as he requested that Ms
Loka not say anything about the matter. The employer asserted that the actions of the
applicant were not consistent with good faith towards his employer, and more consistent with
a guilty conscience and an attempt to cover up his actions.
[38] In respect to the applicant’s alleged breach of the employer’s layby policy, it was
submitted that the significant delay in the finalisation of the layby for the Adidas shoes
amounted to serious misconduct. The employer contended that any agreement or permission
that was provided by the previous Store Manager for the applicant to wear the shoes was
confined to the wearing of the shoes in the store and on the condition that he finalise the
layby. It was submitted that the applicant did not have permission to extend the end date of
the layby transaction and that he had taken flagrant advantage of the layby system for his own
personal benefit.
[39] The employer also submitted that the applicant was guilty of serious misconduct in
respect to non-compliance with certain timekeeping and recording practices. The employer
said that the record of the applicant’s attendance revealed that he had failed to correctly
“thumb in and out” and authorised time worked by access to more senior Managers
passcodes. The employer’s submissions rejected that the applicant simply forgot to use the
thumbing in and out of the timekeeping system, but he overrode the system as a means by
which he might be able to avoid detection for when he was absent.
[40] In further submissions, the employer asserted that the applicant was given details of
the allegations made against him and he was provided with full opportunity to respond both at
the meeting of 21 September, and the further meeting held on 9 October 2015. The
employer’s submissions noted that the applicant’s then solicitors provided a written response
to the allegations in their letter of 6 October. The employer also submitted that the applicant
had not been unreasonably refused permission to have a support person present in any
discussion relating to dismissal. The employer submitted that there was no positive obligation
on an employer to offer an employee the opportunity to have a support person, and that this
procedural aspect only arose in the event that an employee asked for a support person and
such a request was refused. Further, it was noted that the applicant did have a support person
present during the meeting held on 9 October 2015.
[41] In summary, the employer submitted that the Commission should not intervene in this
matter. The employer submitted that the applicant’s conduct constituted a valid reason for his
dismissal and that he had been provided with two opportunities to respond, and after
considering those responses, the employer had properly arrived at valid reason for the
summary dismissal of the applicant.
[42] The employer submitted that the application for unfair dismissal remedy should be
dismissed. In an alternative submission, the employer asserted that reinstatement of the
applicant would not be an appropriate remedy as there had been a dismissal based on serious
misconduct and loss of trust and confidence. Further, it was submitted that if the Commission
was satisfied that a remedy of compensation should be provided, then the misconduct of the
applicant should reduce any amount that may be provided as compensation.
[2016] FWC 5141
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Consideration
[43] Section 385 of the Act stipulates that the Commission must be satisfied that four
cumulative elements are met in order to establish an unfair dismissal. These elements are:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[44] In this case, there was no dispute that the matter was confined to a determination of
that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of
the applicant was harsh, unjust or unreasonable.
[45] Section 387 of the Act contains criteria that the Commission must take into account in
any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
“(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.”
387 (a) - Valid reason for the dismissal related to capacity or conduct
[46] In this instance, the reason for the summary dismissal of the applicant involved the
employer’s findings of serious misconduct in respect to four particular allegations. The first
three allegations of misconduct were set out in the letter dated 21 September 2015 which was
provided to the applicant during the meeting that he attended on that day. The fourth aspect of
misconduct found against the applicant was raised as one of the two additional allegations
conveyed to the applicant on 24 September 2015. The employer did not seek to rely upon the
[2016] FWC 5141
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fifth allegation concerning the four boxes of shoes that the applicant had in his possession
when he was seen leaving the store on 16 September 2015.
The Sale and Discounting of the New Balance Shoes - Allegations 1 and 2
[47] Allegations numbered one and two were connected with the circumstances
surrounding the sale of two pairs of New Balance shoes to the applicant’s friend, Mr Herning.
Allegation number one concerned the family discount that the applicant had applied to the
benefit of Mr Herning when the sale was recorded on 17 September. Allegation number two
concerned the applicant taking $220 cash from Mr Herning on 7 September, not recording
that transaction in any way at that time, and then allowing Mr Herning to take the shoes from
the store.
[48] There was a significant difference in the nature and severity of allegation number one
when compared with allegation number two. This difference can be conveniently summarised
by the evidence that was provided by the former Manager of the Blacktown store, Ms
Poposka.
[49] Ms Poposka was called by the applicant to give evidence as a witness and she no
longer worked for the employer. Ms Poposka provided credible, objective and balanced
evidence which did not necessarily assist either side. Ms Poposka was a reluctant witness who
provided truthful, open, and believable evidence.
[50] In respect of allegation number one, Ms Poposka said that “… the “family discount”
was used to help close the sale with friends, family and loyal VIP customer.”2 In comparison,
when she was asked about allegation number two, Ms Poposka confirmed that all purchases
that were made by customers would be processed through the till, without exception.3 Ms
Poposka said that in her experience in the retail industry, she had never known of a
circumstance where cash was taken from a customer and not immediately processed through
the till.4
[51] Any objective analysis would logically distinguish between allegation one and
allegation two such that, allegation one involving the applicant applying the family discount
to a customer who was not an immediate family member, could not be properly construed as
serious misconduct. It is interesting to note that in the termination of employment letter of 9
October, the employer described its finding in respect of allegation one as “serious conduct”.
[52] Consequently, allegation number one involving the applicant applying a family
discount to a customer who was not an immediate family member could not, in isolation, be
held to be serious misconduct. Further, this conduct could not be properly construed as
serious misconduct when considered in the context of other conduct under examination. At its
highest, the conduct of the applicant in providing the family discount for the sale of the New
Balance shoes to Mr Herning, was an inappropriate misapplication of the discounting regime,
in the particular circumstances of the sale to a friend.
[53] Allegation number two concerned the applicant taking $220 in cash from Mr Herning
who was both a friend and customer, and not recording that transaction in the employer’s
sales records in any way until seven days later. The $220 in cash was taken on 10 September
and the applicant’s explanation for the delay before which he recorded the transaction on 17
September was, regrettably, unconvincing.
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[54] The applicant’s witness statement contained a recount of the circumstances that
surrounded the events of 10 September, and then the subsequent recording of the sale on 17
September when Mr Herning returned to the store to exchange one pair of the shoes for a
different size. During the Hearing, the applicant provided a significantly more expansive and
detailed account which included that after Mr Herning had not returned to the store as
anticipated on the following Sunday, 13 September, he had taken the $220 in cash from under
the till, put the money in an envelope, and then taped the envelope inside the safe in the rear
of the shop.
[55] The applicant was asked the obvious question as to why he didn’t process the
transaction that he said he was too busy to deal with on the Thursday night, when he had clear
opportunity to do so on the Sunday5. The applicant did not provide any plausible explanation
as to why he did not rectify what he clearly understood to be a significant irregularity with
there being no record of any transaction for which he permitted the removal from the store of
two pairs of New Balance shoes. Frankly, anyone with even only limited experience in the
retail industry would understand that taking cash from a customer and not immediately
recording it in the till amounts to what might be described as a “mortal sin.”
[56] Consequently, allegation number two which involved the applicant taking cash for the
sale of shoes which he then permitted the customer to take from the store, and for which he
did not account for immediately or within a reasonable time, represented serious misconduct
as was determined by the employer. Unfortunately, the employer mischaracterised this serious
misconduct by describing it as theft. There is little doubt that the circumstances of the
applicant’s serious misconduct regarding the delayed recording of the sales transaction for the
New Balance shoes could not satisfy the elements required to establish the criminal conduct
of larceny.
Breach of Layby Policy - Allegation 3
[57] The basis for allegation number three commenced on 27 May 2015, when the
applicant established a layby payment for a pair of Adidas shoes. The employer’s stated
policy requires that laybys must be completed within 60 days. The applicant did not complete
the layby payment for the Adidas shoes within 60 days. Instead, he continued the layby by
introducing further transactions which had the effect of extending the layby period. In
addition, the applicant commenced to wear the Adidas shoes whilst the layby payment
remained outstanding.
[58] Somewhat ironically, the applicant was wearing the Adidas shoes that were on layby
when he attended the meeting on 21 September 2015, which the employer had deliberately
deceived him into believing to be a meeting at which he would be provided with some
commendation rather than allegations of serious misconduct involving alleged criminal
activity. The applicant had obtained approval from the previous store manager, Ms Poposka,
to wear the Adidas shoes when he was at work. He had apparently worn the shoes to previous
meetings with the State and Area Managers. Ms Poposka also deposed that there was not
strict adherence to the 60 day layby policy and that it was often altered or pushed back for
customers and staff.6 Further, as there would always be a traceable record of the layby, Ms
Poposka described the layby as something that was not a massive issue or concern.
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[59] As was the case with allegation number one, allegation number three regarding the
applicant’s breach of the employer’s layby policy could not be properly construed to be
serious misconduct representing basis for summary dismissal. In the termination of
employment letter of 9 October, the employer stated, in respect of allegation number three,
that; “This amounts to theft and serious conduct.” It would appear that the employer has an
entirely misconceived understanding of what might constitute larceny. It may assist the
employer if it refrained from using strong, inflammatory language particularly involving
allegations of criminality.
[60] On any reasonable and objective analysis of the circumstances surrounding the
applicant’s misuse of the layby arrangements, there could be no finding that his actions
represented serious misconduct justifying summary dismissal.
Falsification of Timekeeping Records - Allegation 4
[61] The allegation made against the applicant in respect of his timekeeping practices did
not materialise with any specificity. It appeared that the employer provided only generalised
accusations that worked hours recorded in its computerised timekeeping system did not match
the video footage of the applicant physically being in the store. There was no particular
evidence of the precise times that were said to be the foundation for this allegation.
[62] The applicant conceded that he had used a password code to override the computerised
recording of start and finish times. The evidence established that this password code was not
kept secret but accessible to the Store Manager and others. Further, an analysis of various
time and wage records strongly suggested that the applicant had been performing the Store
Manager role on a relieving basis without receiving any additional remuneration.
[63] In the termination of employment letter the employer determined that in respect of
allegation number four; “We find against you on this issue.” Without any detail or specificity
this finding made by the employer could not be sustained. Consequently, there was no
foundation upon which allegation number four could represent proper basis to have
established serious misconduct justifying the summary dismissal of the applicant.
[64] Consequently, when the various findings made by the employer in respect to the four
allegations which were said to have established serious misconduct are properly, carefully and
objectively analysed, only one of those allegations can be supported as representing valid
reason for the dismissal of the applicant. Allegation number two concerning the applicant not
recording the cash provided to him in respect of the sale of the New Balance shoes represents
the only finding of serious misconduct which can be upheld. The particular finding of serious
misconduct made by the employer in respect to allegation number two has been verified and
represents valid reason for the dismissal of the applicant.
387 (b) - Notification of reason for dismissal
[65] The employer provided written notification of the reasons for the applicant's dismissal.
The written notification was provided by way of the termination of employment letter dated 9
October 2015, and handed to the applicant at the conclusion of the meeting held on that day.
The termination of employment letter is notable because it contains certain obvious errors.
[2016] FWC 5141
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[66] The termination of employment letter was clearly prepared before the meeting with the
applicant on 9 October 2015, as it anticipated that the applicant would attend that meeting
along with his solicitor. The termination of employment letter commences; “We refer to the
meeting which has just taken place between you, your solicitor (from Dowson Turco
Lawyers), Ms Lilyan Youkhanis of WilliamsonLegal and the writer.” However, the applicant
did not attend the meeting with his solicitor but instead he took his friend Mr McBain as a
support person.
[67] Consequently, the employer had a predisposed position in respect of the allegations
which it was supposed to be evaluating during the meeting. Despite the meeting adjourning
for at least approximately 20 minutes, the employer did not even attempt to correct the
obvious error in the opening sentence of the termination of employment letter.
387 (c) - Opportunity to respond to any reason related to capacity or conduct
[68] The employer provided the appearance that the applicant was provided with
appropriate opportunities to respond to the allegations that were made against him. However,
the evidence revealed that the employer had formed a view of the guilt of the applicant as
early as Saturday, 19 September 2015, when it took steps to deliberately deceive him about
the purpose of the meeting arranged for the following Monday, 21 September 2015.
[69] The concept of the need to provide an opportunity to respond to potential reasons for
dismissal particularly related to serious misconduct, is fundamentally predicated upon the
decision-maker approaching the issues under consideration with an open mind such that the
opportunity represented some practical and realistic potential to persuade the decision-maker
to a particular view. In this instance, the employer characterised the applicant’s conduct as
theft from the outset, and its subsequent treatment of any responses provided by the applicant
was contaminated by the predisposed view that it held.
387 (d) - Unreasonable refusal to allow a support person to assist
[70] The employer’s erroneous and predisposed approach to dealing with the conduct
issues that arose with the applicant extended to, what for practical purposes, amounted to a
refusal to allow the applicant a support person at the first meeting held on 21 September. At
this meeting the initial allegations were first conveyed to the applicant. It was somewhat
remarkable that the employer sought to suggest that the applicant had a support person at that
meeting in the form of the Area Manager, Ms Shakra, when Ms Shakra had been conducting
the investigation into the applicant with the State Manager, Ms Reis.
387 (e) - Warning about unsatisfactory performance
[71] This factor is not relevant to the circumstances in this instance.
387 (f) - Size of enterprise likely to impact on procedures
[72] The size of the employer’s operation would not have been likely to have a significant
impact on procedures surrounding the dismissal of the applicant.
387 (g) - Absence of management specialists or expertise likely to impact on procedures
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[73] This factor is not relevant to the circumstances in this instance.
387 (h) - Other relevant matters
[74] The erroneous procedure adopted by the employer when dealing with the conduct
issues which arose with the applicant, included a significant flaw which established that the
summary dismissal of the applicant was plainly unjust. The employer consciously permitted
the applicant to work on Sunday, 20 September 2015, in the full knowledge of the nature and
extent of the misconduct for which it subsequently invoked a summary dismissal.
[75] Consequently, the employer applied a level of severity to the misconduct of the
applicant which was inconsistent with permitting him to continue work on Sunday, 20
September 2015. This continuation of the applicant in the performance of work meant that the
employer could not subsequently summarily dismiss on the basis of the misconduct that the
employer was aware of when it permitted the applicant to continue work.7
Conclusion
[76] The applicant was summarily dismissed for serious misconduct involving the
employer’s findings in respect to four allegations. Upon proper analysis only one of the
employer’s findings of serious misconduct can be sustained.
[77] The employer’s finding of serious misconduct in respect to the allegation regarding the
applicant failing to properly record and receipt the cash provided in respect to the purchase of
the New Balance shoes, has established valid reason for the dismissal of the applicant.
Particularly in the context of the retail industry, the misconduct of the applicant in respect to
the mishandling of the cash in respect to the sale of the New Balance shoes to a friend
represents serious misconduct that would justify dismissal with notice.
[78] However, the manifestly erroneous approach adopted by the employer when dealing
with what has subsequently been established to be both serious misconduct and significantly
less serious misdemeanours, has meant that there was not proper basis to justify the summary
dismissal of the applicant. The procedural errors made by the employer have rendered what
would have otherwise been an entirely fair dismissal with notice, to be an unreasonable and
unjust summary dismissal.
[79] Therefore, the summary dismissal of the applicant must be held to have been
unreasonable and unjust. The applicant is entitled to remedy for unfair dismissal.
Remedy
[80] The applicant has sought reinstatement as remedy for his unfair dismissal. In this
instance, there was a valid reason for the dismissal of the applicant involving serious
misconduct. The particular nature of that serious misconduct has provided proper basis upon
which the employer would have legitimately lost trust and confidence in the applicant.
Therefore, any remedy of reinstatement would be inappropriate. Alternatively, in the
particular circumstances of this case, the appropriate remedy would be some limited
compensation.
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[81] Section 392 of the Act prescribes certain matters that deal with compensation as a
remedy for unfair dismissal. I have approached the question of compensation having regard
for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s
Licensed Festival Supermarket 8 and as commented upon in the subsequent Full Bench
Decision in Smith and Ors v Moore Paragon Australia Ltd 9.
[82] Firstly, I confirm that an Order of payment of compensation to the applicant will be
made against the employer in lieu of reinstatement of the applicant.
[83] Secondly, in determining the amount of compensation that I Order, I have taken into
account all of the circumstances of the matter including the factors set out in paragraphs (a) to
(g) of subsection 392 (2) of the Act. In particular, I mention that there was no evidence of any
effect that any Order of compensation would have on the viability of the employer’s
enterprise. The applicant had been employed for a period of about 11 months, and if he had
not been summarily dismissed his employment may have been properly terminated within a
very short period.
[84] I note that the applicant has made efforts to mitigate his loss. I also note that the
amount of compensation that I am prepared to provide does not include any component by
way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the
applicant by the manner of the dismissal.
[85] Consequently, for the reasons outlined above I have decided that an amount
approximating with one week remuneration at a conservative estimate of an ordinary weekly
rate before dismissal, should be Ordered as compensation to the applicant. That amount is
$1,100.00. Accordingly a separate Order [PR583606] providing for remedy in these terms
will be issued.
COMMISSIONER
Appearances:
Mr B Eurell of Counsel with Mr J Barakat of Barakat Lawyers appeared for the applicant.
Mr A Barwick, solicitor of Williamson Legal appeared for the employer.
Hearing details:
2016.
Sydney:
March, 9 and 10.
Printed by authority of the Commonwealth Government Printer
[2016] FWC 5141
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Price code C, PR583452
1 This is reference to the case of Briginshaw v Briginshaw (1938) 60 CLR 336.
2 Exhibit 7 – paragraph 24.
3 Transcript @ PN 493 and 494.
4 Transcript @ PN501.
5 Transcript @ PN1028.
6 Transcript @ PN416.
7 See for example: McCasker v Darling Downs Co-operative Bacon Association Ltd, Supreme Court of Queensland, [Ryan
J], 25IR 107 @ page 114.
8 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
9 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
