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[66]
[2023] FWC 1889
General information, not legal advice.
Fair Work Commission
2023-07-31
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 31 July 2023.
The spelling of the surname of Counsel for the Respondent has been amended to the correct spelling.
s.365 - General protections
The Trustee For Tillbrook Melaleuka Group Hospitality Trust
Jurisdictional Objection employee not dismissed within the meaning of the Fair Work Act - employee not forced to resign - application dismissed.
[1] Cassandra Tovey (the Applicant) made an application to the Fair Work Commission (FWC) under s.365 of the Fair Work Act 2009 (Cth) (FW Act), alleging that she had been dismissed from her employment with Tillbrook Melaleuka Group (the Respondent) in breach of sections 340, 343, 344, 351 and 352 of the FW Act.
[2] The Respondent has objected to the application on the grounds that the Applicant resigned her employment and was thus not dismissed within the meaning of the FW Act.
[3] As stated recently by the Full Bench in Lipa Pharmaceuticals v Mariam Jarouche:
"Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission 'dealing' with the dispute under s 368 including by conducting a conciliation conference.[1]"
[4] As such, the matter was set down for hearing on 6 July 2023 to determine the jurisdictional issue. The matter was part heard on that day and then adjourned, with the remainder of the hearing conducted on 18 July 2023.
[5] The Respondent sought leave to be represented at the hearing.
[6] The Applicant made no submissions on the issue of the Respondent being represented. In its submissions, the Respondent drew my attention to case precedent supporting the proposition that in matters involving jurisdictional objections and particularly objections over whether or not there has been a dismissal, there will be issues of such complexity that it would be appropriate to allow representation. I accepted that this was true of the present case and exercised my discretion to allow the Respondent to be represented.
[7] The Applicant gave evidence on her own behalf.
[8] Ms Jaime Mills and Ms Louise Day gave evidence on behalf of the Respondent.
[9] The Respondent filed submissions in the FWC on 19 June 2023. The Applicant filed submissions in the FWC on 26 June 2023.
[10] The Respondent filed submissions in reply on 3 July 2023.
[11] The Applicant was engaged by the Respondent as a Shift Supervisor at The Wellard Tavern in Wellard, Western Australia.
[12] On 10 February 2023 Jaime Mills, the Respondent's Hospitality Operations Administrator, was advised that there had been some suspicious variances in cash balances of banking envelopes. As these variances were not consistent with ordinary variances and were occurring in envelopes that had already been reconciled twice, Ms Mills commenced an investigation.
[13] As part of this investigation, on 22 February 2023 she viewed, along with the Group Operations Manager - People and Process Louise Day, CCTV footage of the office where cash was stored and counted, to try to determine the cause of a variation that was identified on 21 February 2023. As a result of viewing this footage, she formed the view that the Applicant was a potential cause of the variation.
[14] Having formed this view, Ms Mills then viewed CCTV footage for 14 February 2023 to try to find the cause of a further variance. After viewing that footage, she formed the view that the Applicant was also potentially the cause of that variance.
[15] On 27 February 2023 Ms Day issued a letter to the Applicant, advising her that she was being suspended with pay pending the outcome of an investigation into alleged theft of funds and directing her to attend a meeting on 28 February 2023.
[16] On 28 February 2023 the Applicant attended this meeting with Ms Day and Hospitality Operations Manager Vince Torsiello to discuss the allegations against her. Ms Day put a series of allegations to the Applicant regarding timekeeping, and allegations about the two incidents which had been viewed by her and Ms Mills on CCTV.
[17] The Applicant denied all of the allegations against her.
[18] Later that day, Ms Day sent the Applicant a record by email of their discussions entitled "Record of Interview" to review and sign. On 1 March 2023 the Applicant advised Ms Day by email that she had not signed the Record of Interview but that the process had upset her and she was intending to resign. On 2 March 2023 the Applicant sent Ms Day a further email which advised that she was resigning her employment.
[19] On 23 March 2023 the Applicant applied to the FWC alleging she had been dismissed in breach of sections 340, 343, 344, 351 and 352 of the FW Act.
[20] The Respondent submitted that the Applicant had clearly resigned her employment. The evidence from the witnesses for the Respondent was that once the Respondent had been made aware of the concerns regarding the Applicant's actions, it engaged in a structured and fair process to address those concerns and had at all times afforded procedural fairness to the Applicant. Copies of relevant letters and emails to the Applicant, along with meeting notes from the discussion on 28 February 2023 and the relevant CCTV footage were tendered into evidence to support the Respondent's contentions about procedural fairness.
[21] The Respondent submitted that in considering the issue, I should be mindful of the findings in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli when considering the type of resignation tendered by the Applicant. In that case, the Full Bench noted as follows:
"Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
[22] The Respondent submitted that the Applicant's resignation should be considered to be analogous to the situation outlined in paragraph (2) of Bupa as above, on the basis that it was not given in the heat of the moment and no attempt has been made to retract it. As such, it was contended that the FWC needed to look at the actions of the Respondent to see if they were such that the Applicant had no other choice other than to resign.
[23] The Respondent noted a number of cases that supported the proposition that an employer engaging in a reasonable investigation into alleged misbehaviour could not be taken as forcing an employee to resign. In Moore v Woolworths Group Limited T/A Big W[3], Deputy President Lake stated that "it would be a perverse outcome to consider an objectively fair investigation and show cause process as imposing forcibly upon the Applicant that they must resign". Deputy President Lake further noted, in Becker v Greater Bank Limited as follows:
"The usual purpose of an investigation is not, of itself, to bring about termination. Rather, the intention is to ascertain, with a degree of certainty, what event - or series of events - transpired and, if relevant, their cause. Once that information is gathered and conclusions drawn, the employer can decide what action is appropriate.[4]"
[24] The Respondent also cited the decision of Deputy President Lake in the Becker case, noting that the employer's jurisdictional objection had been upheld, with the FWC finding that the Applicant had voluntarily resigned:
"That said, it seems that at some point during the meeting, the Applicant came to the view that her employment was at risk. She had been confronted by numerous new allegations regarding her poor performance and reminded of the two previous occasions when similar concerns had been raised. Faced with these mounting matters, it seems that the Applicant made the decision to resign from her employment, perhaps - rightly or wrongly - in anticipation of the potential termination of her employment. I do not, however, accept that was the only opportunity available to her. Had she not resigned, but instead responded to the show cause notice and allowed an investigation to be conducted into the branch manager's conduct (as the Respondent had done in 2019), her employment may not have been terminated. Or it may have. Either way, resigning was not the only option available to the Applicant at the meeting on 1 June 2021. Nor, on any reasonable view, did the Respondent's conduct force the Applicant to resign.[5]"
[26] In assessing the Applicant's submissions and evidence, I am mindful that she was unrepresented and unlikely to be cognisant of the relevant case law or conventions for witness statements and submissions. As such, I have made some allowance for the manner in which the Applicant's submissions and evidence were presented. At hearing, Ms Lakhia for the Respondent sought permission, which was granted, to draw my attention to those parts of the Applicant's submissions that were in fact evidence and those parts which were submissions and I have been mindful of those distinctions.
[27] The Applicant at all times maintained that she had not engaged in the alleged theft of monies. She contended that the allegations against her were false and as such, the actions of the Respondent were both unlawful and discriminatory.
[28] The Applicant claimed in her defence that she had not been present at the Respondent's premises on one of the occasions, being 19 February 2023 where money was alleged to have gone missing. However, in evidence the Respondent explained that the monies from 19 February 2023 had been actually checked on 20 February 2023 and found to be correct and it was later on this date, a date on which the Applicant did work, when the funds went missing.
[29] It was the Applicant's submission that her suspension pending an investigation was unfair, in that she claimed that the Respondent did not provide sufficient evidence of any wrongdoing on her part. She further contended that, as other managers were not questioned about cash variances, that she had been discriminated against by the Respondent. On the issue of what the Applicant contended was "discrimination", the evidence given by both witnesses for the Respondent was that all managers had, in effect, been investigated. Their evidence, which I accept, was that they viewed CCTV footage of all managers who had worked on the relevant days and the only activity they viewed as suspicious was that engaged in by the Applicant.
[30] In terms of the actual conduct of the investigation interview, the Applicant contended that the representative of the Respondent, Ms Day, was hostile and made what the Applicant described as "unwarranted demands with menaces". Under cross-examination, the Applicant conceded that the nature of the unwarranted demands with menaces was to repeat certain questions and then ask follow up questions with what she deemed was the intention of eliciting a desired response. While this form of questioning would have been at the very least unwise if it constituted badgering the Applicant, I am not persuaded that it was in fact of that nature.
[31] The final issue canvassed was the Applicant's claim regarding bullying. It was the Respondent's position that if bullying was part of the reason that the Applicant resigned, then the Applicant had options other than resignation. Under cross-examination, Ms Lakhia for the Respondent attempted to elicit from the Applicant a concession that her claims of bullying could have been pursued further, potentially as far as the FWC, even in light of the situation in which the Applicant found herself regarding the alleged theft. While the Applicant did finally concede to Ms Lakhia's line of questioning, I found that line to be of little value as it was clear that any such option was theoretical rather than practical. In any case, it was clear by the end of cross examination that the chief motivation for the Applicant's decision to resign was the situation regarding the alleged theft rather than any bullying issues which allegedly took place prior to the investigation of theft.
[32] The task for the FWC is not to determine whether or not the Applicant is guilty of the theft as alleged by the Respondent. The task is instead, consistent with paragraph two of the decision in Bupa referenced earlier, to determine if the conduct engaged in by the Respondent was so repugnant that the Applicant had no real alternative other than to resign her employment.
[33] Based on the evidence, the process engaged in by the Respondent to investigate the Applicant once it had formed the view that she was a potential cause of the missing funds was initially procedurally sound. The Applicant was advised in writing of the allegations against her, given time to prepare herself, encouraged to utilise the Respondent's employee assistance program and invited to bring a support person to the investigation meeting.
[34] I do not find that the standing down of the Applicant with pay by the Respondent as part of that process was improper. The standing down of employees with pay is not unusual where an employer is investigating conduct that may meet the standard of serious misconduct allowing summary termination. Although the Applicant submitted that the Respondent did not have sufficient evidence to suspend her, I find that the evidence submitted in the form of CCTV footage was sufficient to create some level of concern in an environment where money was going missing and no other managers had been observed acting in a suspicious manner.
[35] At the investigation meeting, the Applicant was asked to provide responses to various questions regarding timekeeping and the alleged theft of funds. Her responses were recorded by the Respondent and the Respondent then provided her with its record of interview for her consideration and potential amendment. Having done so, the Respondent then took time to consider the Applicant's answers and determine a course of action. Initially, the Respondent had intended to communicate the outcome to the Applicant on Friday 3 March 2023, but advised her that there would be a delay.
[36] The Applicant sought to characterise this delay as unreasonable, as it had extended a period which, for her, was one of significant anxiety. I do not accept that this is the case. While I do not wish to downplay the anxiety that Ms Tovey no doubt did experience, the decision to terminate a person's employment, particularly for theft, is one that deserves serious consideration. As such a delay, while undesirable from one perspective, may be important when viewed from another.
[37] In and of themselves, the actions of the Respondent appear to be broadly consistent with contemporary expectations about the handling of sensitive investigations into potential misconduct by an employee. However, I must express a level of disquiet over the failure of the Respondent to show the CCTV footage to the Applicant. In her evidence, Ms Day conceded that she would have shown the footage if the Applicant had asked to see it. Ms Day was a very credible witness who gave straightforward responses and I accept that she would indeed have done so. In cross examination, Ms Lakhia for the Respondent drew a concession from the Applicant that she could have made such a request during the investigation meeting but did not do so.
[38] Nevertheless, I believe the responsibility lay with the Respondent to give the Applicant every chance to defend herself and this should have included showing her the footage that the Respondent says indicated her guilt. It is understandable that the Applicant, who was in a state of high anxiety, unrepresented and clearly had little if any experience of the sort of investigation being conducted, did not think to ask for the footage. The Applicant was not only facing possible termination of her employment, but an uncertain future should she be found guilty, albeit on balance of probability, of theft. Clearly this would impact on her future prospects of employment and I accept that her inexperience and level of worry was such that she could not be expected to make a dispassionate assessment of the process and determine that procedural fairness would be better served by her viewing the relevant footage.
[39] The Applicant submitted that had she been shown the footage she could have presented a better defence of herself. I believe that this is likely to have been the case. There were a number of occasions during the hearing where the Applicant was able to draw attention to various factors in the footage that, if raised with the Respondent during the investigation meeting, would in my view have warranted further consideration.
[40] For example, under cross-examination the Applicant was asked by Ms Lakhia to explain the motions she was seen to be making in a particular part of the CCTV footage shown to the court. The Applicant responded that she may have been scratching herself. I found this answer to be sufficiently plausible, based on the CCTV footage, to warrant further investigation and questioning.
[41] In another video, the Applicant is seen shuffling through some envelopes. The Applicant asked Ms Day in cross examination which particular envelopes they were, pointing out that they could have been envelopes containing vouchers as opposed to cash. Ms Day was unable to accurately identify the envelopes but maintained there were banking envelopes in the safe. The Applicant drew the concession from Ms Day that there would only have been three days of banking - however, there were clearly at least eight envelopes in the pile and Ms Day conceded that they could have been voucher envelopes.
[42] On another occasion during the hearing, the Applicant drew the Respondent's attention to the fact that during a period where the Respondent alleges she was removing cash, the office door was wide open meaning anyone could have walked in. The Respondent also alleges that some of the movements seen on the CCTV footage suggested the Applicant was deliberately concealing her actions from the camera, the location of which the Applicant conceded she was aware. However, on another occasion, where the Respondent alleges the Applicant was placing stolen money in her handbag, she undertook that particular action in full view of the camera.
[43] None of the observations above are intended to comment on the Applicant's guilt or otherwise. Nor are any of them - of themselves or collectively - definitive proof one way or another. Notwithstanding this, I find that a reasonable person would have made further investigations if those responses had been made during the investigation.
[44] I am also concerned about the evidence of the Applicant, which was unchallenged by the Respondent, that cash discrepancies had been occurring prior to this time, during a period where the Applicant had been on annual leave yet no investigation was undertaken of these variances. It may be that such an investigation may well have identified a common thread amongst all of the discrepancies that did not involve the Applicant.
[45] It is not my contention that the Respondent's officers were in any way malicious in the way they conducted themselves, nor do I think their competency ought be questioned. I am of the view that they were doing the best they could in a situation that was no doubt very difficult and uncomfortable, in that they were accusing a colleague of theft. However, in situations where an employer is investigating an employee on suspicion of committing a criminal act, where a guilty finding will have significant impact on the employee's immediate circumstances and future, the employer should ensure that they have given the employee every possible chance to exonerate themselves. That is not to suggest that the employer ought engage in a level of forensic investigation that would yield a conclusion that would stand up to a "beyond reasonable doubt" standard of proof. However, in this instance, if Ms Tovey is indeed innocent, then being asked to defend herself against allegations about her actions derived from CCTV footage that she had not seen and had no chance to explain would have been a deeply distressing experience.
[46] In the first instance, I note that the second paragraph of Bupa as cited above contemplates two types of forced resignation. The first is where the employer is deliberately acting in such a way as to secure a resignation. The other is where the actions of the employer, though not intended to secure a resignation, are nonetheless of such a nature that the employee is forced to resign. In this case, I find no suggestion that the actions of the Respondent could be said to fall into the former category. As such, it is to the latter category that I turn my attention.
[47] In making my decision in this matter, I find that the cases referred to by the Respondent in its submissions should be given significant weight. I am also mindful of the view expressed in a decision of a Full Bench in ABB Engineering Construction Pty Ltd v Doumit, cited in O'Meara v Stanley Works Pty Ltd:
"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.[8]"
[48] It is no doubt the case that employees facing potential disciplinary action will usually feel uncomfortable. Where they are suspended and being investigated for theft, this discomfort will be significantly magnified. I have no doubt that Ms Tovey was distressed that she was being investigated for theft. It would be highly unusual for this not to have been the case. However, if it were to be found that because being investigated for theft is distressing an employee is therefore entitled to claim forced resignation, this would, in my view, fall foul of the notion, set out above, of ensuring that termination of employment at the initiative of the employer is not too readily invoked where the discretion of the employee is actually the cause. As such, it is important to exercise caution.
[49] It is my view that if an employer did conduct an investigation into possible theft in a manner that was devoid of any procedural fairness, then that behaviour could well be such that it could be said to force a resignation. While as expressed above I do have some disquiet about certain elements of the process engaged in by the Respondent, I am not persuaded that, when viewed as a whole, it could be said that the investigation was behaviour of such a nature that the Applicant was forced to resign. I therefore find that the Applicant was not dismissed within the meaning of the FW Act. Her application is thus dismissed for want of jurisdiction and an order to that effect will issue.
[1] Lipa Pharmaceuticals v Mariam Jarouche 2023 FWCFB 101 [23].
[2] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [47].
[3] Moore v Woolworths Group Limited T/A Big W [2020] FWC 963 at [29].
[4] Becker v Greater Bank Limited [2021] FWC 5063 at [31].
[6] Celia O'Keefe v Ramsay Health Care Australia Pty Limited [2021] FWC 4796 at [151].
[7] Lloyd v PD Curran Plumbing Pty Ltd [2022] FWC 71 at [34].
[8] O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (PR973462); ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
Printed by authority of the Commonwealth Government Printer
Cassandra Tovey
The Trustee For Tillbrook Melaleuka Group Hospitality Trust [2023] FWC 1889