[2010] FWA 7891 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Narong Khammaneechan
v
Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe
(U2010/8180)
DEPUTY PRESIDENT BARTEL |
ADELAIDE, 14 OCTOBER 2010 |
Application for unfair dismissal remedy - Allegation of theft of takings - Lower test required to be met under Small Business Fair Dismissal Code - Test is the belief of the employer not the guilt or otherwise of the employee - Employer conducted appropriate process and had reasonable grounds for the conclusions reached - Application dismissed - Ss.23, 385, 386, 394, 396 of the Fair Work Act 2009; Small Business Fair Dismissal Code.
Introduction
[1] Narong Khammaneechan (“the applicant”), also known as Ju, was employed as a Cook by Nanakhon Pty Ltd ATF Nanakhon Trading Trust (“the respondent”), which traded as the Banana Tree Cafe (“the Cafe”).
[2] The respondent was the sponsor of a Subclass 457 (Business (Long Stay)) visa 1 for the applicant in 2004, under which he was brought from Thailand to Australia to take up the position at the Cafe. For the first couple of years in Mt Gambier, the applicant lived with the proprietors of the Cafe, Sangduen (Sandy) Nanakhon and William Barton. Ms Nanakhon and Mr Barton have been business partners for seven to eight years and life partners for ten years.2
[3] The applicant became very close friends with the proprietors and over time he assumed more responsibility in the Cafe as his English improved and he became more experienced. By the end of his employment he was taking on duties in addition to cooking, to assist other staff and generally contribute to the smooth operation of the Cafe on the shifts that he worked. 3 The evidence of Ms Nanakhon and Mr Barton indicates that the applicant was a trusted employee whose input into the business was appreciated.
[4] Ms Nanakhon had the main responsibility for the Cafe, other than in relation to reconciling the income and expenditure, which was handled by Mr Barton. She attended the Cafe frequently and assisted with all aspects of the operations, from menu design and engaging staff to hands-on work. She and Mr Barton also ran a caravan park, for which Mr Barton had the main responsibility.
[5] The applicant was dismissed on 12 May 2010, via a letter from the respondent’s solicitors dated 3 May 2010. The reason cited for dismissal was theft of money from the Cafe.
[6] This decision concerns the applicant’s application pursuant to s.394 of the Fair Work Act 2009 (“the Act”), seeking a remedy for unfair dismissal. The facts surrounding the applicant’s dismissal are generally not in dispute. Where there is a conflict in the evidence it is dealt with in the narrative below.
The evidence
[7] The applicant gave evidence through an interpreter. I found him to be a credible witness who told the truth even when it was prejudicial to his case. The exception to this finding is aspects of the applicant’s evidence in relation to Ms Nanakhon, which was at times coloured by his animosity toward her. However, as her role in the applicant’s dismissal was peripheral, little turns on this in my view.
[8] The applicant called Christopher Stewart, a waiter at the Cafe who was also dismissed for theft of money at around the same time as the applicant. 4 Mr Stewart gave evidence relating to the staff of the Cafe, rosters, and the process for closing the till at the end of the day. I generally found his evidence to be credible, however some aspects of his evidence were contradictory and other aspects conflicted with the applicant’s evidence. Indeed, Mr Stewart’s evidence gave the impression that the applicant had a far more limited role in using and closing the till than the applicant had testified. Where there is a conflict the applicant’s evidence is preferred.
[9] The third and final witness for the applicant was Patiwat Chaichanasakul, a friend of the applicant’s and the person to whom he turned after the employer raised the issue of the stolen money. Mr Chaichanasakul is the proprietor of an Asian restaurant in Mt Gambier known as Wild Ginger, and he employed both Mr Stewart and the applicant after the respondent dismissed them. His evidence was genuinely given but ultimately of little probative value.
[10] The main witness for the respondent was William Barton. Mr Barton conducted the investigation into the theft of money and also the process leading to the applicant’s dismissal. I found him to be a genuine witness and his evidence is accepted. Ms Nanakhon was a difficult witness. Notwithstanding the availability of the interpreter she chose to answer in English and was at times difficult to understand. She was highly emotive in her language and demeanour and this impacted on the clarity of her answers.
[11] The respondent tendered two witness statements by consent. The first was the statement of Wilma Opie, a newly appointed manager of the Cafe at the time of the applicant’s dismissal. She was an observer at a meeting between Mr Barton and the applicant on 18 April when the allegations of theft were put to the applicant. Her statement is at odds with the other evidence as to what transpired at the meeting and is not accepted in this regard. 5
[12] The final statement was from Kittipong Worasaen, also known as Gap, one of the Cooks at the Cafe. His evidence is consistent with other evidence before the Tribunal and is accepted.
[13] A range of documentation from the Cafe’s cash register and EFTPOS machine was attached to Mr Barton’s statement and will be referred to where relevant.
Processing transactions, reconciling the till and the missing money
[14] It is common ground that money went missing from the Cafe, and the means by which it was stolen is not in dispute. A brief description of the manner in which money transactions are undertaken at the Cafe is appropriate in order to understand how the theft was perpetrated.
[15] Meals taken at the Cafe can be purchased by cash, credit card (Visa, Mastercard, Diners or Amex) or EFTPOS. The codes for the meals and beverages ordered at a particular table number are entered into the register as the orders are taken.
[16] When customers finished dining, the table number would be entered on the register and the total payment required would be displayed. If paying by cash, the customer would hand over the money and the person processing the transaction would enter the amount of cash paid by the customer. The amount of change if any, owing to the customer is indicated on the register and the transaction would then be completed. A separate ‘receipt’ button needs to be pressed to produce a receipt for the customer.
[17] Credit card and EFTPOS transactions are processed through what was referred to in the proceedings as an “EFTPOS machine”. This machine is not linked to the cash register. The table number is entered on the register and the amount owing displayed. This is entered on the EFTPOS machine with other card details and the customer’s credit or debit card is swiped. Once payment is approved, two receipts are issued from the EFTPOS machine, the customer copy and the merchant’s copy. The register keyboard has buttons for each type of credit card and as well as an EFTPOS button. The button appropriate to the type of card transaction is pressed and the merchant’s copy is placed in the till. The customer copy is given to the customer with a copy of the till receipt, if requested.
[18] The means by which the money was stolen from the Cafe was described in the evidence as follows. A cash transaction would take place, but instead of the cash taken from the customer being keyed into the register, the EFTPOS button was pressed. This caused the till to automatically open and any change owing would be given to the customer, together with a receipt if one was requested. It is unclear on the evidence whether the money taken from the customer was stolen at that point by the operator or at the end of the shift when the register was ‘closed’ and the cash reconciled. Had the money not been stolen, the cash in the till would have exceeded the register record of the cash transactions.
[19] At the conclusion of each shift, the register was closed and generally two people were involved in this process. The cash in the till was counted and compared to the amount denoted as “CID” (cash in drawer) on the register record referred to as the “Z1”. The operator would complete a sales summary sheet by recording the amount of the cash in the till, whether it was under or over the CID, an explanation for any discrepancy and the total of the cash and card purchases for the day. This latter amount was recorded on the Z1 and denoted as “Paid TL”.
[20] The summary sheet was emailed to Mr Barton at the conclusion of each shift. A Daily Report was printed from the EFTPOS machine showing the type, number and amount of card transactions for the day. The Z1, the Daily Report, the merchant copies of the card receipts and any receipts for cash taken from the till were stapled to the summary sheet and put away for later collection by Mr Barton.
[21] I interpose that the Z1 also identified the number, type and amount of the card transactions processed through the cash register, and had a comparison of this data with the Daily Report been undertaken, a discrepancy would have been identified. There were a number of occasions when the EFTPOS transactions recorded on the Z1 significantly exceeded the debit card transactions on the Daily Report.
[22] For completeness, the following matters are also agreed. A number of waiting staff and kitchen employees took payment from customers during the course of a shift, and/or were involved in closing the register at the end of a shift. This matter will be canvassed in further detail later in the decision. The register is located on a desk, and staff processing transactions could be seen by some customers and staff, depending on where they were in the Cafe at the time.
The investigation, suspension and dismissal
[23] Mr Barton stated that when he received the sales summary sheet on 15 April, the total EFTPOS sales were significantly in excess of the cash sales. He initially thought this was a mistake but when the same situation occurred on 16 April he decided to investigate further. He obtained various records from the register, including the journal roll which identifies all the food and beverages entered into the register for each table each day, the bill for that table and the nature of the transaction to pay the bill.
[24] The merchant-copy receipts from the EFTPOS machine have a serial number and also indicate the time of the transaction, and these were compared to the journal roll. Mr Barton noted that the merchant-copy receipts were sequentially numbered and none were missing. He was able to identify the EFTPOS transactions on the journal roll for which there were no merchant-copy receipts. Mr Barton considered that all the transactions on the journal roll were legitimate, that is, money was paid for meals taken. He concluded that the only possible explanation was that customers were paying in cash, that the operator was recording the transaction as EFTPOS and pocketing the cash received at that stage or later in the shift.
[25] Mr Barton summarised the illegitimate transactions by date, time and amount for the period 1 to 15 April. He then reconciled these dates and times with the staff working those shifts and prepared a document recording this data, which will be referred to as WB1. 6 Mr Barton stated that it became abundantly clear that only one person was consistently rostered when every illegitimate transaction took place, and that person was the applicant.7 It was also apparent that Christopher Stewart was rostered on some of the shifts when money was missing.
The 18 April meeting
[26] Mr Barton attended the Cafe on 18 April. At the conclusion of the applicant’s shift at about 9.00pm he was called over to a table where Mr Barton was sitting with Wilma Opie.
[27] Mr Barton told the applicant that someone had been stealing money. He then showed him WB1, and told him that he had been working at the time of each illegitimate transaction. He explained to the applicant the means by which the money was stolen
[28] According to Mr Barton, after the applicant looked at the document for some time he said “If it is about the money, I will pay it back and quit.” Mr Barton said that he was stunned at the applicant’s response because he was expecting a denial. He stated that at no stage did the applicant deny taking the money. He then told the applicant that he intended to report the matter to the police, and that he was not sure of the extent of the theft or the period over which it occurred. Mr Barton said that the applicant asked him not to refer the matter to the police. The applicant then asked him whether he thought that he had stolen the money to which Mr Barton replied, “… all I can go by is the evidence.” He then suspended the applicant from employment. 8
[29] The applicant’s evidence is consistent with the above, but with some additional detail. He stated that he couldn’t understand how the money could go missing because the till balanced every night. The applicant stated that he said to Mr Barton “I’ve worked here nearly 5 years. Do you think that I did it” and that Mr Barton replied “I don’t know - do you think that there is anyone else that could be responsible?” The applicant said he couldn’t work out how this could happen without there being a record of the transaction on the EFTPOS machine. He agrees that he was shown WB1, and that he offered to pay the money back. He stated that:
“I thought that William Barton was convinced that I had stolen the money, but I felt some responsibility as I was employed to look after the restaurant and the money had gone missing while I had been in charge. I asked William Barton: “What can I do now?” William Barton said: “It depends. We are going to the police and will let them investigate. If I were you I would be looking for a new job.”... I was feeling confused about why this was happening. I had been working at Banana Tree for almost five years and thought I was close to William Barton and Sandy Nanakhon. I did not understand why they were suddenly not trusting me. I said to William Barton: “Don’t tell the police.” I was concerned about my visa and the possibility that I may be deported. Banana Tree had sponsored me for immigration purposes and my visa had a condition attached to it that I work at Banana Tree for two years. I had only had this visa for 1 year. I was concerned that because of the accusations, people may assume that I was guilty” 9
[30] When asked why he had offered to pay the $2000 to Mr Barton he stated that:
“... the first thing I asked was did [Mr Barton] think I did it, because we have been working together for five years. He answered immediately that he didn’t know. At that time I felt that he did not believe me. During our conversation I could feel that he did not trust me and then we talked about what will happen next and he talked about police involved, so I started to think about my visa. So I didn’t want to have any problem at all because of the condition of my visa for two years and I’m there I should not have any trouble at all. So I offer to pay and I thought that would end it. But I said that I would not be able to pay up front because I didn’t have the money, they would have to deduct it.” 10
[31] The applicant acknowledged that Mr Barton had not accused him of stealing the money. He also agreed that at the conclusion of the meeting he was suspended for a week.
[32] After the meeting with the applicant, Christopher Stewart was interviewed by Mr Barton. For present purposes it is sufficient to note that Mr Stewart denied the allegation that he had stolen money. His employment was also suspended at the conclusion of the meeting.
Post-18 April events
[32] After the meeting the applicant immediately went to consult his friend, Patiwat Chaichanasakul, about his situation. Mr Chaichanasakul drafted a letter of suspension for him, which the applicant presented to Mr Barton for signature on 19 April. The letter essentially confirmed that the applicant was suspended from 19–26 April while an investigation was conducted into the theft of money from the Cafe. 11 The purpose of the letter is not clear on the evidence.
[33] Later that day the applicant, Mr Stewart and Mr Chaichanasakul attended the police station, according to the applicant, because he wanted to prove he was innocent. There is no evidence that he gave a statement to the police, but this could be because he was advised that there was no police report regarding the theft from the Cafe. It is agreed that Ms Nanakhon and Mr Barton attended the police station on that day, because the two parties crossed paths outside the police station. According to the applicant, Ms Nanakhon threatened him saying “I will kill you, I will sell my house to get the funds to fight you until you are bankrupt”. 12 Ms Nanakhon’s evidence on this point was that she spoke in Thai and said “Good luck to you all, Karma will get you.”13
[34] The applicant said that on 22 April he received a phone message from Ms Nanakhon accusing him of stealing $20,000 and advising that the police had taken a report and were looking for him. The applicant then attended the police station again, with Mr Chaichanasakul and Mr Stewart, and left their contact details. They were advised at that time that there was no report on the police database about the theft of money from the Cafe.
[35] Mr Barton stated that when he contacted the police he was advised that it was likely that he could prove the loss of money but that it would be difficult to secure a conviction on the evidence.
[36] The applicant gave evidence that Mr Barton left a phone message for him on one occasion and left a card at his house on another occasion, requesting that he meet with him at the caravan park to discuss the situation. The applicant did not respond, stating that he was concerned about meeting them alone and he did not think it was fair. 14 Ms Nanakhon also left messages for him, one of which was to the effect that he should come and talk to her because of his visa situation.
[37] On 12 May 2010 the applicant received a letter of dismissal dated 3 May 2010 from De Garis Lawyers on behalf of the respondent. The letter stated that as a result of the investigation “… it is clear that you are responsible for the theft of monies from your employer”. 15 It went on to note this was serious misconduct and as a result, the applicant’s employment was terminated as of the date of the suspension. The applicant received no payment after the date of his suspension on 18 April.
Other matters
[38] As noted earlier, the applicant obtained employment at Wild Ginger, which was run by his friend Mr Chaichanasakul. He has been working part time as a cook there since approximately four weeks after his dismissal.
[39] The applicant has received correspondence from the Department of Immigration and Multicultural Affairs, as it was then known, advising that there may be grounds for cancellation of his visa as a result of the cessation of his employment with the respondent. He was give 28 days to respond as to why his visa should not be cancelled. 16 This matter is now in the hands of a migration agent.
The staff roster and the missing money
[40] At some time following the applicant’s suspension, Mr Barton examined the cash register and EFTPOS machine records going back to 1 June 2009. He stated that a total of $11,164.16 was missing in the period 2 June 2009 to 16 April 2010, by the same process as he identified for the April 2010 theft of money. 17 In this period money was missing on 102 days. The data compiled by Mr Barton shows that over this period the amount of money that was missing each month was increasing: from hundreds of dollars per month in 2009 to thousands of dollars per month in 2010.
[41] A number of witnesses gave evidence on the roster arrangements and the staff who operated the till. The roster for kitchen staff was put in evidence 18 and shows the following:
Sandy |
Ju |
Gap |
Soon | |
Monday |
11.00-2.00 5.00-10.00 |
11.00-2.00 5.00-9.00 |
6.00-10.00 | |
Tuesday |
11.00-2.00 6.00-10.00 |
5.00-9.00 |
||
Wednesday |
12.00-12.30 |
11.00-2.00 5.00-10.00 |
5.30-9.30 | |
Thursday |
11.00-3.00 |
12.00-3.00 6.00-10.00 |
11.00-2.00 5.00-9.00 |
|
Friday |
11.00-3.00 |
12.00-3.00 5.00-9.00 |
11.00-2.00 5.00-10.00 |
5.30-9.30 |
Saturday |
12.00-10.00 |
11.00-2.00 5.00-9.00 |
12.00-3.00 6.00-10.00 |
|
Sunday |
11.00-2.30 |
6.00-10.00 |
11.00-2.00 5.00-9.00 |
[42] In relation to the applicant at least, the end time for the evening shifts is indicative only since the evidence is that he often stayed back to ensure that there were no problems closing the till. 19 It is common ground that Kittipong Worasaen (Gap) rarely took cash from customers and was not able to operate the EFTPOS machine. He was not involved in closing the till.
[43] The evidence in relation to the roster for the front of house staff is difficult to follow. No rosters were provided and the evidence indicates that staff often swapped shifts, and/or extra staff could be called in at short notice if it was busy. Mr Barton stated that only time sheets would be an accurate record of who worked and these were not produced. 20
[44] Mr Stewart was the most senior front of house staff member, and next to the applicant had the most service. He stated that he worked the lunchtime shift on Tuesday and Wednesday and the evening shift on Tuesday to Thursday, Saturday and Sunday. 21 This does not accord with the shifts he worked in April according to WB1, however, I consider that this may simply reinforce the evidence that staff swapped shifts from time to time. Mr Stewart did not take issue with WB1.
[45] There were several other front of house staff, all of whom operated the cash register through their shifts and were involved in closing the till from time to time. No single staff member was designated to close the till on a particular shift. The evidence is that there were between two and four staff in the Cafe when the till was closed, depending on how busy the shift had been.
[46] The applicant did not take issue with the days and times that he worked as indicated in WB1. He indicated that every night he worked he would stay back with another staff member to close the till. His role was limited to checking the cash and he stated that two people were always involved in the process. He stated that he sometimes took payments from customers during his shift, if the front of house staff were busy and he was able to leave the kitchen. 22
[47] In response to the conclusions drawn by the respondent based on WB1, the applicant stated that a number of the illegitimate transactions were undertaken when he would have been too busy in the kitchen to be involved in processing payments from customers. He referred specifically to the illegitimate transactions that occurred between 8.00 and 9.00pm on Thursdays to Saturdays inclusive. Of the dates between June 2009 and April 2010 when money went missing the applicant stated that this included five Mondays when he was not rostered to work and also four days when he was on annual leave. 23
Submissions
[48] I have had regard to the entirety of the submissions in reaching my conclusions however for convenience I set out below the key points of each party’s submission.
[49] Ms Harvey, of counsel for the applicant, raised a number of issues, which, it was submitted, undermined the respondent’s conclusion that the applicant had stolen the money. These included:
[50] Ms Harvey suggested that the applicant was denied procedural fairness in the meeting on 18 April because he had no support person present, no advance notice of the meeting and it was conducted in English. The lack of a support person was said to be a breach of the Small Business Fair Dismissal Code.
[51] Ms Harvey argued that the applicant’s responses at that meeting need to be viewed in the context of his reliance on his employment to maintain his visa and his sense of responsibility for the loss of the money, given the trust and authority extended to him by the proprietors. His decision not to meet with the proprietors after his suspension reflected his view that the respondent believed he was guilty of the theft, and needed to be viewed in the context of threatening remarks by Ms Nanakhon and the respondent’s failure to pay wages. In addition, Ms Harvey noted that the applicant consistently sought out the police and was keen to have the matter concluded by them.
[52] Mr De Garis, of counsel for the respondent, argued that the respondent conducted an appropriate investigation and put the facts to the applicant. The coincidence of the pattern of missing money and the applicant’s roster and the means by which the money was stolen were explained to the applicant, and the applicant’s English was proficient enough for him to understand exactly what was being put to him. The applicant did not seek to have a support person present, and as such there is no breach of the Small Business Fair Dismissal Code.
[53] Mr De Garis noted that the respondent did not accuse the applicant of stealing the money, and despite the applicant’s assertion that the respondent believed he was guilty, at no stage did the applicant protest his innocence. On the contrary, he offered to pay the money back. In addition, the respondent repeatedly contacted the applicant to have further discussions but, on his own admission, the applicant refused to meet Mr Barton. Mr De Garis submitted that the respondent formed a reasonable belief that the applicant was guilty of the misconduct and was within his rights to summarily dismiss him.
Consideration
[54] The legislation as it applies to applications for relief from unfair dismissal, distinguishes between businesses depending on size, with particular provisions applying to small businesses. An employer is a small business employer if it employs fewer than 15 employees at a particular time. 24 In the present matter the parties accept, and I find, that the respondent is a small business employer. I also find that the applicant’s employment was terminated at the initiative of the employer and as such he was dismissed within the meaning of s.386 of the Act.
[55] The Act provides that, in considering an unfair dismissal application, the Tribunal must address certain matters initially, as follows:
“396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[56] I am satisfied, and there is no challenge, that the application was made within the relevant time period; that the applicant is protected from unfair dismissal; and that the dismissal was not a case of genuine redundancy. It therefore remains to be determined whether the dismissal was consistent with the Small Business Fair Dismissal Code. If the dismissal was consistent with the Code, then pursuant to s.385 of the Act the applicant has not been unfairly dismissed.
[57] Section 385 is in the following terms:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(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.”
[58] It is only if it is determined that the dismissal is inconsistent with the Small Business Fair Dismissal Code do I need to explore whether the dismissal was harsh, unjust or unreasonable. The Small Business Fair Dismissal Code is in the following terms:
“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.” 25
Did the employer believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal?
[59] The applicant concedes that stealing money is serious and wilful misconduct that would justify instant dismissal. As such it is the first and third paragraphs of the code that are relevant to the present matter.
[60] At the outset it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of FWA is not to determine on the evidence whether there was a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the applicant did or did not steal the money. The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.
[61] I consider that the investigation conducted by the employer to obtain the details of the amounts stolen and the means by which the money was stolen was sufficient to provide a basis on which to interview the applicant in relation to the theft. Unfortunately the applicant put up nothing in his own defence and, on the contrary, appeared to accept responsibility for the stolen money. While the applicant did not confess to the theft, neither did he provide any basis on which the respondent could reasonably reach any alternative view.
[62] I consider that the applicant’s reluctance to have further discussions with the employer was in part at least, due to the behaviour of Ms Nanakhon. While the evidence indicates that Mr Barton adopted a dispassionate and professional approach to the investigation, Ms Nanakhon was emotional and at times threatening towards the applicant. Nonetheless, the applicant was friends with Mr Barton and was aware that Mr Barton had carriage of the investigation. I do not reject the applicant’s evidence that he did not wish to meet with Mr Barton because he felt that he no longer had his trust and confidence, but as noted earlier, I must have regard to the steps taken by and information available to the employer.
[63] The argument that the applicant’s response to the theft of money needs to be considered in the context of his visa status is not without merit. However, the applicant did not frame his responses to the employer around his visa status, including when he offered to pay the money to the employer. I have no doubt that Mr Barton was aware of the potential impact of a dismissal on the applicant’s visa, but he was not in a position to discern whether this was the reason for the applicant’s attitude.
[64] Notwithstanding that Mr Barton did not file a formal police complaint when the theft was discovered, I am satisfied that he did bring the matter to the attention of the police and it was the police response to his complaint that dissuaded him from pursuing the matter further. In any event, the test required under the Small Business Fair Dismissal Code is not that a formal complaint is made.
[65] The applicant’s absence on a few days when money went missing in the period June 2009 to April 2010 is not sufficient to undermine the reasonableness of the respondent’s belief that the applicant was responsible for theft of money. It is clear that the respondent considered that the applicant did not act alone.
[66] There is no evidence that the applicant did not understand the detail of the matters put to him at the meeting on 18 April even though the meeting was conducted in English. It is correct, as Ms Harvey submits, that the applicant had no advance warning of the meeting but he would have had a fair idea what it was about since it is common ground that Ms Nanakhon had let it be known on the previous day that money was missing. 26 In any event, the applicant was not dismissed at this meeting and had several opportunities to respond to Mr Barton before the decision to dismiss was taken. I therefore do not consider that the meeting on 18 April undermined the reasonableness of the respondent’s actions.
[67] In all the circumstances I consider that the respondent had reasonable grounds on which to consider that the applicant was guilty of serious and wilful misconduct.
[68] The respondent’s failure to pay wages to the applicant from the date of suspension to his receipt of the letter of dismissal is of concern. On the evidence, there is no legal basis on which respondent could withhold his wages; certainly there is no provision in the relevant modern award. 27 This matter is not within the present jurisdiction but the applicant may have a remedy elsewhere, and I would encourage the employer to consider making payment for this period.
Procedural issues
[69] I am not persuaded by the submission that the Small Business Fair Dismissal Code requires that an employer must invite an employee to have a representative present. The relevant words in the Small Business Fair Dismissal Code that “… the employee can have another person present to assist” are permissive in nature and confer a right that the employee may choose to exercise. The obligation on the employer is to not frustrate that right if the employee chooses to exercise it. This begs the obvious question as how an employee of a small business is to know that such a right exists, but that is not a matter for consideration here.
Conclusion
[70] I have concluded that the respondent complied with the Small Business Fair Dismissal Code and accordingly, the applicant has not satisfied the requirements of s.385 of the Act that must be met in order to obtain a determination that he has been unfairly dismissed. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms S Harvey, of counsel for the Applicant
Mr W De Garis, of counsel for the Respondent
Hearing details:
2010
Mt Gambier
August 19 and 20
1 Pursuant to Schedule 1 of the Migration Regulations 1994
2 Ex R1 at para 43
3 PN 159, 1626
4 Mr Stewart also filed an unfair dismissal application that was to be heard concurrently with the present application, however that matter settled on the morning of the trial.
5 For example, contrary to the evidence of the applicant and Mr Barton, Ms Opie stated that the applicant denied stealing the money at the 18 April meeting: Ex R4 at para 11.
6 Ex R1, Annexure WB1. Handwritten amounts at the bottom of WB1 record that a total of $1937.58 went missing between 1-15 April and a further $259 was stolen on 16 April.
7 PN 1600
8 Ex R1 at paras 14-16; PN 1610-1617
9 Ex A3 at paras 19-20 and 23-29
10 PN 1196
11 Ex A3, Annexure A
12 Ex A3 at para 39
13 Ex R2 at para 22
14 PN 1257-1259
15 Attached to the Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy.
16 Ex A3, Annexure B. The letter is undated – it was sent by email to Ju but the email cover sheet was not put in evidence.
17 Ex R1, Annexure WB11
18 Ex R1, Annexure WB2
19 PN 555
20 PN 1632, 1660
21 PN 1373
22 PN 111; 382; 450; 1235
23 PN 360; Ex R1 WB11; PN 462-463, 475
24 Section 23 of the Act.
25 FWA website: http://www.fwa.gov.au
26 PN 52, 1791
27 Hospitality Industry (General) Award 2010 [MA000009]
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