| [2017] FWC 4727 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leanne Trembath
v
RACV Cape Schanck Resort
(U2017/4034)
COMMISSIONER WILSON |
MELBOURNE, 13 SEPTEMBER 2017 |
Application for an unfair dismissal remedy.
[1] Leanne Trembath was employed by the RACV Cape Schanck Resort between 18 May 2008 and the date of her dismissal which took effect on 27 March 2017. In the time that she worked at the RACV Cape Schanck Resort, Ms Trembath was employed in the resort’s golf shop. When she was initially employed she worked as a Golf Shop Attendant, however from September 2012 Ms Trembath worked as the golf shop’s Retail Supervisor. The resort is operated by RACV Ltd (RACV).
[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Ms Trembath’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time she was dismissed she was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.
[3] For the reasons set out below, I find that Ms Trembath was not unfairly dismissed from her employment and that accordingly, her application for unfair dismissal remedy must be dismissed.
[4] Ms Alanna Duffy, of Counsel, was granted permission to represent Ms Trembath, pursuant to the provisions of s.596(2)(a) of the Act, with the Commission being satisfied that a grant of permission to her would enable the matter to be dealt with more efficiently, taking into account its complexity; and s.596(2)(c) which allows consideration that an unfairness may arise to a person taking into account the circumstances of both parties. Mr Renato Marasco, the RACV’s Manager – Employee Relations, appeared for the RACV.
[5] Evidence was given in this matter by Ms Trembath, who was the only witness on her behalf. Evidence was received on behalf of the RACV from Alicia Cartwright, People & Culture Business Partner; Gareth James Acting Golf Shop Operations Manager; Connor Spencer, Golf Shop Attendant; and Lisa Brown, Golf Shop Attendant.
[6] The circumstances of Ms Trembath’s dismissal flow from events in the golf shop which commenced on Sunday, 19 March 2017. On that day Ms Trembath had been working a retail shift from 7:00 AM and was due to complete the shift at 3:00 PM, although her evidence is that she finished slightly later, signing off at 3:30 PM and leaving the premises closer to 4:00 PM. On that particular day, Ms Trembath recalls that there had been a number of cash register discrepancies which she says in her evidence are a reasonably common event. 1
[7] Connor Spencer is a Golf Shop Attendant who was due to commence his shift from 3:00 PM. When he arrived at the golf shop Ms Trembath was still there and undertaking a till check relating to one of the cash register discrepancies she had found. Ms Trembath’s evidence on the subject is that prior to leaving she had conducted a count of the cash in the till which she believed to be correct. She put her initials on the cash register and those of Mr Spencer. That evidence, given orally, is different to that contained within Ms Trembath’s original written witness statement in which it was said that she had “initialled the point of sale docket, which was initialled both by myself and a shop attendant who was working that day, Connor Spencer”. 2 Ms Trembath’s oral evidence on the subject is consistent with that of Mr Spencer, given both in writing and verbally with him putting forward that;
“On Sunday 19th March 2017, I began my shift at 3pm. Leanne Trembath was due to finish at 3pm and was undertaking a till check. She told me that the till had balanced and she had signed it as being accurate and correct. She requested I co-sign the till as being accurate, but then advised not to worry and that she had initialled it on my behalf. This did not provide me with an opportunity to count the till myself.” 3
[8] After this occurred Ms Trembath finished her work and left the shop. As the day progressed and as part of the preparations for closing the shop Mr Spencer commenced the end of shift till count and banking procedure and he found a further discrepancy:
“At 6pm on the same day, I commenced the end of shift till count and banking procedure. The count revealed at $50 cash discrepancy, in that the till was $50 up. I then checked Leanne’s recording of her cash count and found that she had made an error. I called Leanne to explain what had occurred and seek guidance, as she was in charge on the day. She advised me to put the $50 note aside and complete the banking as though it had balanced. Despite knowing this was against policy, as we have all been advised to bank ‘as is’ and note any differences, Leanne was in charge so I followed her directive. She advised she would check with Helen the following day as to what to do with the $50.00.” 4
[9] The evidence given by Mr Spencer about Ms Trembath’s workaround is broadly consistent with her own:
“29. When the shop closed at 6pm, Connor conducted another reconciliation of the till as was the normal practice. He telephoned me at home at approximately 6:15pm and said “I am really sorry to call you at home, but the till is $50 over”. He said “I can see from your count at 3pm you noted we had $250 in $2 coin, but we actually have $300 in $2 coin.”
30. At the time that he called, I had taken a prescription pain pill and wasn’t in a position to resolve the matter that night. I told Connor to put a $50 note, plus a detailed note in the cash tin in the golf shop cupboard. I said that after the tills for Friday – Sunday were counted, I would reconcile the balance as required. This is because the cash from the registers from the trading on Friday, Saturday and Sunday are all counted by the office and banked on Monday. I thought that if there was a discrepancy in the tills from an earlier day, then that might need to be resolved.” 5
[10] Ms Trembath’s evidence is that when she went to work on Monday, 20 March 2017 she spoke with another employee, Helen Santeroneos, about the till discrepancy. Ms Santeroneos works in the office of the Resort Manager, Conleth Roche. When they discussed the till discrepancy Ms Trembath said to Ms Santeroneos that she would “ring up the $50 to retail” 6 which she proceeded to do:
“36. One of my responsibilities is stock control, and it is a process for which I am entirely responsible. I was due to conduct a stock take in the following weeks so I was conscious of whether there were any items that should be removed from stock prior to the stock take being conducted. Part of my responsibility for stock control was to remove unsaleable items from the shop so that the shop maintained a neat and professional retail appearance.
37. There was a hat on the sale table which had been in the shop for around 12 months. It was quite faded on one side where it had been placed in or near a window and was discoloured. The item had been reduced to a sale price which was below cost, but had not sold. I therefore decided to use the transaction to ring up against the hat, so that it would be removed from the stock listing in advance of the stock take.
38. If I removed the hat from stock without creating a “sale” it would put my line item for cost of goods (CoGs) in headwear out of sync. It would show the full wholesale cost of the hat as cost of goods, but show nothing in corresponding revenue. By ringing the hat up at full retail, it would avoid distorting the CoGs for headwear items.
39. Confectionary and non-alcoholic beverages was another area which was often used to allocate additional cash which needed to be accounted for in a sale. This is because confectionary was sold at different retail prices. Staff received a 50% discount on confectionary. By ringing up part of the sale to confectionary (while leaving the actual confectionary in stock), it would create additional revenue in that stock line as against the CoGs.
40. The CoGs budget is one of the KPIs against which my performance is measured annually.
41. I created a transaction with a total value of $49.50 which was the “sale” of the hat and several confectionary items. I put the extra 50c in the small change cup next to the register. This is where we put additional change from transactions, for example if a customer doesn’t take their change on a transaction.” 7
[11] Ms Trembath’s evidence was that the process described above of writing off stock as unsaleable damaged was a routine process. After she had rung up the transactions referred to above she “cut the sale tags from the hat and discarded them and put the hat in [her] bag to take home to donate to a local op shop or similar”. 8
[12] Later in the shift, Mr Spencer and another employee Lisa Brown, also a Golf Shop Attendant, were approached by Ms Trembath:
“… Leanne approached Lisa Brown and myself saying Helen had advised her that the weekend transactions had been correct and to ring up the $50 through the till. Leanne advised that she was ringing up a hat that had been in the shop for a long time which had not sold. Leanne completed the transaction and said to Lisa ‘I’ve rung up the $50 but you don’t need to know about it’ which raised my suspicion.” 9
[13] Ms Trembath does not directly address this conversation within her written witness statement.
[14] Mr Spencer’s evidence is that also on Monday, 20 March 2017 and after the exchange related above, he noticed a hat in Ms Trembath bag inside a cupboard at the back of the golf shop, and he took a photograph of the hat in question;
“Later on Monday 20th March, I went to a cupboard between two work stations at the back of a golf shop. Leanne’s bag was inside the cupboard and the hat that she had rung up was sitting in her bag. It didn’t seem right that she was taking the hat home so I took a photo of the item in her bag, in case anything was asked in regards to the transaction, but I did not go through her bag.” 10
[15] After these exchanges, both Mr Spencer and Ms Brown sent text messages to Gareth James the Acting Golf Operations Manager about Ms Trembath;
“Hi Gaz, I need to speak to you tomorrow regarding Leanne today… just take anything she says tomorrow with a grain of salt until I have spoken to you. Thanks.” 11
“Oh no, what’s happenend”
“Something happened today and I would like to speak to you about this on Wednesday” 12
[16] Following these events, a process was initiated by Mr James on behalf of RACV Cape Schank resort first to inquire into and then investigate the circumstances of what occurred.
[17] The concerns held by Mr James were that there could have been two matters worthy of further consideration. The first was whether or not the organisation’s cashiering policy had been adhered to and the second was whether or not the hat in question may have been removed as an act of theft. 13
[18] On Tuesday, 21 March 2017 Mr James asked to see Ms Trembath. In that conversation, he recollected that Ms Trembath had agreed she had not followed the proper procedure for the cash discrepancy. 14 Ms Trembath’s recollection of the same meeting is consistent with Mr James’ recollection, however also putting forward an explanation about the whereabouts of the hat:
“I thought that the conversation with Mr James was strange. At this point I became concerned that Mr James considered that my actions in resolving the till discrepancy were inappropriate. The hat was still in my bag as I hadn’t yet had the chance to donate it to a charity store. I had personal items at home that I was going through to donate to charity, which is why I took the hat home. In order to make sure that there was no inappropriate action, I removed the hat from my bag and put it in the stock cupboard until any issues could be resolved. I told Mr James that I had done so and showed him the hat in the stock cupboard so that he would know what had happened.” 15
[19] Also on Tuesday, 21 March 2017 Mr James spoke with the Resort Manager, Mr Roche and consulted with Ms Cartwright and later emailed them with a timeline of the matters.
[20] After the meeting on 21 March 2017 Ms Trembath was asked to attend a further meeting on Friday, 24 March 2017. The correspondence provided to her about the purpose of the meeting outlined a series of concerns and in particular that she had;
[21] The correspondence advised Ms Trembath that she was welcome to have a support person in attendance with her at the meeting. She initially chose Ms Santeroneos with whom she was friendly, however the RACV advised Ms Trembath that she could not have her as a support person because there may be a conflict of interest on Ms Santeroneos’ part given that she worked directly in the office with Mr Roche. When Ms Santeroneos let Ms Trembath know that she was unable to attend the meeting as her support person she said through a text message that “The HR lady doesn’t think I should be your support person as we work together”. 17
[22] When the meeting took place it was attended by Mr Roche, Ms Cartwright and another RACV employee known to Ms Trembath only as “Steve”. Ms Trembath considered that the meeting had been conducted in an adversarial manner, which Ms Cartwright denies. 18 Ms Trembath’s recollection of the meeting in relation to the discussion of her adherence to the cashier procedure included these matters:
“70. On several occasions I attempted to explain my actions, but Ms Cartwright said that it was not necessary for me to explain. I got the impression that Ms Cartwright was not interested in hearing my explanations as to the incident and how I dealt with the outcome.
71. I asked why Mr James was not present at the meeting as had been indicated in the letter. Ms Cartwright said that Mr James had been interviewed and it was not necessary for him to attend.
72. Ms Cartwright said that I had made Connor feel very uncomfortable and that he had said that he had told me that he didn’t want to initial the count at the end of the shift. This was the first that I had heard that Connor felt uncomfortable. I had worked with Connor since he was 14 years old. He hadn’t said anything at the time that he was uncomfortable. I began to feel concerned for Connor that he felt like he could get in trouble for what had happened, and I wanted to protect him from any consequences. I still didn’t understand why I was having the meeting in relation to a minor till discrepancy which had been fully resolved.
73. I started to explain the various counts that took place during the day. I wasn’t sure whether a full count had been conducted at the beginning of the day (before my shift commenced) because the float (which was $1000) had a large amount of coins, and I am not sure whether the staff member who had opened the shop had actually done a full count of the coins.
74. Ms Cartwright asked me if was aware of the new cashiering policy and I said that I wasn’t sure and that it was on my first day back after planned sick leave. She produced a copy of the policy and placed it on the table and said “That is your signature isn’t it?”. I agreed that it was my signature.
75. I said that the cash was in the cash tin with a detailed note. She asked what had happened to the note. I said that I had put the note in the bin when I put the $50 through the till.
76. She then said that the records showed that I had put the money through the till at 1:27pm (I think) and asked what I had been doing with the money all that time.
77. I said that the money was in the cash tin and that I had been very busy. I was confused because she seemed to be implying that I had stolen the money, but it was clear that I hadn’t as it had been processed through the register, exactly as I had said.” 19
[23] Ms Trembath’s recollection of the discussion in the meeting about what had happened to the hat included the following:
“80. Ms Cartwright then asked me about the hat. I explained my reason for ringing it up, again to keep headwear CoGs in sync while making the decision to give the hat to charity. It was old, damaged unsaleable and of no value.
81. Ms Cartwright said that she didn’t understand retail and commented that she couldn’t imagine anyone buying the hat as it wasn’t very attractive (or words to that effect).
82. I said that I was very good at my job and that there were numerous hats in the same style which had sold at full retail. I said that the only reason that this one had not sold was because it had been faded on one side while on a mannequin.
83. She said that Lisa (a part time employee who had been present when I rang up the transaction) had been very uncomfortable when I cut the sale tags off the hat and made a comment along the lines of “Well that is that $50 gone, but you don’t know about that”. I said that my comment referred to the fact that Lisa hadn’t been at work on Sunday and therefore wasn’t aware of the issue.
84. She asked where the hat was and I said it was in the stock cupboard.
85. I was still confused about what was going on and was definitely feeling that I was being accused of doing something wrong and was under attack. Ms Cartwright asked if the hat had left the building. I was still confused about what was happening in the meeting, and said no. Ms Cartwright then produced a photograph of my handbag which was open on a desk (when my handbag is normally kept in the stationery cupboard). I didn’t know why someone would touch my bag, open it and take a photo. Ms Cartwright then said words to the effect that I was a liar and couldn’t be trusted.
86. Ms Cartwright asked me what I would consider the removal of company property from the premises and I said that I didn’t know.
87. I again tried to explain that the hat was still in my bag from when I left on Monday and I returned it to the stock cupboard after my conversation with Gareth as I was concerned that for some reason he thought my decision to give it to charity was inappropriate. I wanted to get clarification.” 20
[24] At the end of the meeting Ms Trembath asked Mr Roche what was likely to happen following the meeting. On Ms Trembath’s evidence he explained to her that under normal circumstances he would be asked for his recommendation, but that he may not be asked. 21
[25] The day after the meeting, on Saturday, 25 March 2017, Ms Cartwright reflected upon the discussion within the meeting the previous day and sent a written response to the RACV. That response conceded that she may not have put forward her best in the meeting with her saying to Ms Cartwright the recipient of the correspondence:
“I know my answers relating to time lines were all over the show, and from that point I felt defeated. Not guilty simply defeated. Hence my not being truthful when asked if the hat had gone anywhere prior to my placing it in the back stock cupboard. You asked me why and I told you I did not know … You asked me again [using Lisa] as an example of what I would call Company theft and again my answer was honest as I know Lisa would never steal anything. Had you of given me a different case scenario my answer may have been different.
When removing the retail/sales tags from the hat I did not think this would be looked at as theft of RACV property. My only reason for placing the hat in my bag and removing it from the property was to give it to charity. There was never any motive to steal or be dishonest.” 22
[26] Following the Friday meeting and on the receipt of the response from Ms Trembath on Saturday, 25 March 2017 Ms Cartwright consulted with Mr Marasco the RACV Manager – Employee Relations and they made a decision to terminate Ms Trembath’s employment. They drafted a letter for Mr Roche to send. The letter was received by Ms Trembath on 30 March 2017 and refers to a termination date of 27 March 2017. The correspondence received from Ms Trembath sets out the following about the termination of her employment;
“Dear Leanne
I refer to our meeting held on 24 March 2017 at which you were present. During the meeting we discussed details of a serious misconduct incident that occurred 20 March 2017.
As discussed during the meeting, your conduct during that incident:
We consider that your actions constitute serious misconduct warranting the
termination of your employment with RACV effective from 27 March 2017.
Any termination payments owing to you will be paid into your nominated bank
account within 14 working days.
If you have any questions please feel free to contact me on [telephone number].
Yours sincerely,
CONLETH ROCHE
RESORT MANAGER
RACV CAPE SCHANK RESORT” 23
[27] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[28] Determination of whether Ms Trembath’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.
[29] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way; 24
“[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:
[30] I will deal with each of the criteria within s.387 in turn.
(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)
[31] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:
“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 (1995) 60 IR 1, when considering the construction and application of s 170DC.” 30
[32] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 31 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.32 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.33
[33] The misconduct alleged against Ms Trembath is of theft, namely that she removed the brown hat from stock with the intention of taking it home and not returning it. In this regard the RACV takes into account that Ms Trembath first took the hat from the display and put it through the cash register to correct the till discrepancy that had emerged on Sunday, 19 March 2017. It also takes into account that she removed the stock tags from the hat and placed them in her bag, where they were later found by Mr Spencer on Monday, 20 March 2017.
[34] RACV rely upon several inconsistencies in Ms Trembath’s explanation to them as indicators that she intended to remove the hat and keep it. In particular, it took into account that she told Mr James in the meeting on Tuesday, 21 March 2017 that she had corrected the cash discrepancy through the workaround referred to. 34 It then takes into account that her first explanation in the meeting on 24 March 2017 was that she had put the hat in the back cupboard with the intention of donating it to charity. At that time she did not know that RACV had a photo of the hat in her bag. When the photo was put to Ms Trembath she changed her explanation, accepting that the hat was in her bag and that although it was her intention to take it to a charity she had brought it back “because there had been concerns raised that she then brought it back in and put it in the cupboard”.35
[35] RACV also rely upon what it considers to be an implausible explanation given by Ms Trembath about donating the hat to charity explanation. Mr James gave evidence that he had “never heard of this occurring”. 36 Mr James also gave evidence that he had consulted with the former golf shop manager about the subject who said to him by text message that “Any items that are difficult to sell are reduced in price until sold. Nothing is written off and given to charity.”37
[36] The RACV also takes into account that Ms Trembath had in her communication to Ms Cartwright on 25 March 2017 conceded that her answers regarding the timeline of the matter in question “were all over the show” as well as conceding that she had not been truthful “when asked if the hat had gone anywhere prior to my placing it in the back stock cupboard”. 38 It also takes into account the circumstances with the cash discrepancy on Sunday, 19 March 2017 and the failure by Ms Trembath to adhere to the organisation’s cashiering policy, both when she wrote down Mr Spencer’s initials on the cash register docket as well as when she later instructed Mr Spencer to set aside a $50 note and complete the banking as though it had balanced.
[37] As set out above, it is necessary for the Commission to find on the balance of probabilities whether the alleged misconduct actually occurred.
[38] Mr Spencer’s evidence is to be accepted as credible and consistent as well as providing a coherent series of concerns which progressed over several days.
[39] He was uneasy with the instruction given to him by Ms Trembath about the two reconciliations on 19 March 2017 but accepted that she was in charge and he should follow her directive. On 20 March 2017 when Ms Trembath spoke both with him and Ms Brown about the weekend cash discrepancy his suspicions were raised about what he heard Ms Trembath to say, and in particular “that she was ringing up a hat that had been in the shop for a long time which had not sold”. 39 He then saw the hat in Ms Trembath’s bag in the rear cupboard and became even more concerned.
[40] He reported his concerns the same day, Monday, 20 March 2017, by text message to Mr James who also received a text message of similar concern from Ms Brown. The text sent by Mr Spencer would likely have concerned any manager; in the subsequent phone call between Mr Spencer and Mr James the former alluded to a belief “that there had been a possible theft”. 40
[41] There is no evidence before the Commission that would suggest that Mr Spencer’s evidence is unreliable or that he has something to benefit from the report he made adverse to Ms Trembath. In fact, at least in relation to the placement of the hat in Ms Trembath bag, Ms Trembath concedes that the hat was in her bag at the relevant time.
[42] The evidence, such as it is, regarding the organisation’s policy not to donate unsaleable stock to charity is likely correct. However, given that it consists entirely of Mr James’ experience and the text message consultation that he had with the former golf shop Manager, it should not be determinative of the claim made by the RACV. The fact that a donation to charity may be contrary to the organisation’s policy does not automatically lead to the conclusion that this could not have been Ms Trembath’s motives.
[43] In substance though, Ms Trembath has not assisted her case with the explanation given about the location of the hat and whether it left the building in the course of the interview on Friday, 24 March 2017. The notes of that meeting, the accuracy of which is not agreed with by Ms Trembath, record first that Ms Trembath said “that the hat was put in the back cupboard and that it could be nowhere else” and that she later admitted after being shown the photograph that was in her bag. 41 Her email to Ms Cartwright on 25 Saturday, 25 March 2017 concedes that she had not been truthful when asked if the hat had gone anywhere prior to her placing it in the back stock cupboard.42 Her witness statement to the Commission backs away from that concession with her saying that:
“85. I was still confused about what was going on and was definitely feeling that I was being accused of doing something wrong and was under attack. Ms Cartwright asked if the hat had left the building. I was still confused about what was happening in the meeting, and said no. Ms Cartwright then produced a photograph of my handbag which was open on a desk (when my handbag is normally kept in the stationery cupboard). I didn’t know why someone would touch my bag, open it and take a photo. Ms Cartwright then said words to the effect that I was a liar and couldn’t be trusted.
86. Ms Cartwright asked me what I would consider the removal of company property from the premises and I said that I didn’t know.
87. I again tried to explain that the hat was still in my bag from when I left on Monday and I returned it to the stock cupboard after my conversation with Gareth as I was concerned that for some reason he thought my decision to give it to charity was inappropriate. I wanted to get clarification.” 43
[44] There is no record of Ms Trembath actually seeking clarification, in spite of her concern.
[45] In forming my view about whether or not on the balance of probabilities the alleged misconduct actually occurred, I take into account not only the foregoing matters, but also that the evidence in respect of the cash handling matters on Sunday, 19 March 2017 allows the inference to be drawn that Ms Trembath was at best, not attentive to her obligations under the policies, and more likely, someone who was prepared to avoid them when it suited her.
[46] As a result, I find on the balance of probabilities that Ms Trembath intended to take that stock home and not return it and that she had no intention of donating it to charity. I take into account that Ms Trembath was not honest with her employer during the course of its investigation into her conduct.
[47] As a result of those findings, I also find that at the time it dismissed Ms Trembath RACV Cape Schanck Resort had a valid reason for the termination of her employment related to her conduct.
(b) whether the person was notified of that reason
[48] The evidence establishes that Ms Trembath was notified of the reasons held by the RACV Cape Schanck Resort for her termination of employment.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[49] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal. 44
[50] The letter sent to Ms Trembath on Thursday, 23 March 2017 establishing the meeting to be held the following day about alleged “poor work performance and inappropriate conduct” sets out four concerns that were to be discussed within the meeting, namely that she;
[51] While the four matters broadly could be considered to include an allegation of theft on the part of an employee the letter does not specifically make that allegation. However, the notes of the meeting and indeed Ms Trembath’s own evidence, demonstrate that the allegation of theft which formed the reason for the termination of her employment was directly and specifically put to Ms Trembath in the meeting on Friday, 24 March 2017 and that she was given an opportunity to respond to that allegation.
(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
[52] Ms Trembath’s evidence is that she invited Ms Santoreneous to attend the meeting as her support person and that while the latter initially agreed she subsequently withdrew that agreement because of concerns about her attendance in that capacity within the organisation:
“63. Just before I was ready to leave to attend the Second Meeting, I received a text message from Helen which said “The HR lady doesn’t think I should be your support person as we work together’ I responded with words to the effect that I was very concerned. Helen texted me again saying that she would be my support person and not to worry about it.
64. Shortly afterwards I received a follow up text from Helen which said ‘Leanne, they are not letting me sit with you. Alicia said that Conleth can be your support person if you would like. I’m sorry”.” 45
[53] Ms Cartwright’s witness statement explains the RACV’s thinking about this decision:
“Due to the nature of Helen’s involvement in the process, we felt it a conflict of interest for Helen to represent Leanne as her support person. Helen contacted Leanne immediately after I met with Helen. Conleth then contacted Leanne to offer to reschedule to allow her to seek an alternate support person, or he offered to be her support person. Leanne agreed with Conleth being her support person.” 46
[54] In context of the overall evidence, I am unable to find that there was an unreasonable refusal on the part of RACV Cape Schanck resort to allow Ms Trembath to have her preferred support person in attendance. The explanation given by the RACV about the potential for there being a conflict of interest with Ms Santoreneous attendance, given that she had some involvement in the overall matter is a reasonable and acceptable one.
[55] Nonetheless, disquiet must be expressed about the proposition apparently put forward that Mr Roche could be her support person. If there was to be a conflict of interest with Ms Santoreneous attending as the support person for Ms Trembath than that conflict of interest would pale into insignificance with the attendance of Mr Roche in that capacity. He was in attendance at the meeting on Friday, 24 March 2017 as the management representative. He was the one who signed the letter of dismissal to Ms Trembath. By no means could he be regarded as someone who would give Ms Trembath “support” in any of the capacities implied by that word; whether as an advisor, counsellor or representative.
[56] Mr Roche should not have allowed his name to be put forward as a potential support person for Ms Trembath and neither should have Ms Cartwright, as the organisation’s People & Culture Business Partner, allowed it to occur.
[57] Nonetheless, there was no unreasonable refusal on the part of the RACV to allow Ms Trembath to have a support person present in the meeting.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[58] Ms Trembath was not dismissed because of unsatisfactory performance and so this factor is a neutral consideration in my decision.
(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
[59] RACV’s Employer Response Form indicates that at the time Ms Trembath was dismissed it employed 3,000 people. There is no evidence before the Commission that its size impacted on the procedures it followed in effecting Ms Trembath’s dismissal.
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;
[60] The evidence in this matter includes that RACV had access to and did access dedicated human resource management specialists or expertise in making its decision to dismiss Ms Trembath.
(h) any other matters that the FWC considers relevant
[61] The Commission does not consider there are any other matters requiring to be dealt with in this decision.
[62] For the reason that it has been found RACV Cape Schanck Resort had a valid reason for Ms Trembath’s termination of employment and that there are no other factors which would lead to a finding that Ms Trembath’s termination was otherwise unfair, it is my finding in this matter that she was not unfairly dismissed.
[63] As a result Ms Trembath’s application for unfair dismissal is dismissed and an order to that effect is issued at the same time as this decision.
COMMISSIONER
Appearances:
A. Duffy of Counsel for the Applicant.
R. Marasco Manager-Employee Relations for the Respondent.
Hearing details:
2017.
Melbourne:
22-23 June
1 Exhibit A2, Witness Statement of Leanne Trembath, [27].
2 Ibid, [28].
3 Exhibit R4, Witness Statement of Connor Spencer, [3].
4 Ibid, [4].
5 Exhibit A2.
6 Ibid, [34].
7 Ibid.
8 Ibid, [45].
9 Exhibit R4, [5].
10 Ibid, [6].
11 Exhibit R6, Witness Statement of Gareth James, [3].
12 Ibid, [3].
13 Ibid, [4].
14 Ibid, [5].
15 Exhibit A2, [53].
16 Ibid, [58].
17 Ibid, [63].
18 Exhibit R3, Witness Statement of Alicia Cartwright, [16].
19 Exhibit A2.
20 Ibid.
21 Ibid, [92]
22 Ibid, [93], Attachment F.
23 Ibid, Attachment G.
24 Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.
25 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
26 Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].
27 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].
28 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].
29 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].
30 Selvachandran v Peteron Plastics (1995) 62 IR 371, p.373
31 Edwards v Giudice (1999) 94 FCR 561 [6]‒[7]
32 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.
33 Streeter v Telstra Corp Ltd (2008) 170 IR 1
34 Exhibit R6, [5].
35 Exhibit R3, Attachment A, p3.
36 Exhibit R6, [5].
37 Ibid, [5]; Attachment D.
38 Exhibit A2 Attachment F.
39 Exhibit R4, [5].
40 Exhibit R6, [3].
41 Exhibit R3, Attachment A, p3.
42 Exhibit A2, [93]; Attachment F.
43 Ibid.
44 Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].
45 Exhibit A2.
46 Exhibit R3, [8].
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