Rich River Golf Club (ACN 001 357 071) v Lynette Anne Power

APPLICANT: Mr C Acev Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, LEGAL REPRESENTATIVES: New South Wales Branch RESPONDENT: Mr S Schmitke Clubs New South Wales

JUDGMENT: - 51 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

6 September 2002 Matter No IRC00/1852 JOY MAREE HUMPHRIES AND COOTAMUNDRA EX-SERVICES AND CITIZENS MEMORIAL CLUB LTD Application by Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch, re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 225

1 This matter was originally listed for arbitration before Tabbaa C in Cootamundra commencing on 12 October 2001. The arbitration did not proceed and the matter subsequently came before a Full Bench of the Commission in November 2001. The Full Bench published a statement on 18 December 2001 which dealt with the exercise of the rights of a party, pursuant to s173 of the Act, to have another member of the Commission arbitrate an unfair dismissal claim where conciliation before a member of the Commission has been unsuccessful (see Humphries and Cootamundra Ex-Services and Citizens Memorial Club Ltd, Matter IRC1852 of 2000, Statement of Full Bench, 18 December 2001).

2 The merits of the matter were not agitated before the Full Bench. As a result, the application was remitted to me for determination pursuant to the arbitration powers of the Commission under Pt 6 ch 2 of the Industrial Relations Act 1996 ("the Act").

3 Joy Maree Humphries ("the applicant") was dismissed on 8 April 2000 from her position as a bar attendant employed by the Cootamundra Ex-Services and Citizens Memorial Club Ltd ("the respondent").

4 The applicant commenced employment on 29 September 1997 as a part time employee engaged on various duties including bar steward, Keno operator and poker machine attendant. The applicant worked at the Club on a voluntary basis for six months before commencing paid employment under the terms of the Club Employees (State) Award (319 IG 589). There was no evidence of any complaint about her work performance, behaviour or attitude.

5 In early 2000, the respondent discovered that over many months there were unusual refund transactions involving packaged beer. The police were informed and an investigation commenced.

6 On 15 March 2000, the applicant was interviewed by the police. She was later charged with seventy counts of obtaining money by deception between 1 October 1999 and 8 January 2000. The specific allegations were that the applicant falsely refunded multiple items of packaged beer on numerous occasions over a number of months and stole the money. The loss to the respondent was said to be between $8,000 and $9,000.

7 After the police interview on 15 March the applicant attended for work. She was met in the Club's car park by Mr Kent, the Secretary/Manager and Mr Loiterton, a Bar Supervisor. Mr Kent asked if she had been interviewed by the police. She replied that she had and that she denied any involvement in the unusual transactions. Mr Kent informed the applicant she was to be stood down without pay until further notice.

8 Soon after, the applicant contacted her Union and spoke to the Secretary, Mrs Susan McGrath. Mrs McGrath made representations to the respondent in accordance with the Award provisions which do not allow for suspension without pay. The applicant's pay was restored while she remained on suspension. Mrs McGrath made arrangements for the Union delegate, Mr Geoffrey Ticehurst, to be present with the applicant at any disciplinary meetings convened by the respondent.

9 On 7 April 2000, the applicant attended a disciplinary meeting at the Club with her Union delegate, Mr Ticehurst. Present at the meeting were the Club's President, Mr Gordon Vesperman, Mr Kent and a representative from Clubs New South Wales, Mr Martin Sainsbury.

10 Mr Kent sought an explanation from the applicant of the cash handling discrepancies. The applicant denied any wrongdoing. She said the tills were often hundreds of dollars over and that excess monies were handed to the supervisor on duty. When asked which supervisors, she named eight persons. The applicant also said she may have pressed the wrong button on the till.

11 The meeting was adjourned. That afternoon, Mr Vesperman, Mr Kent and Mr Sainsbury met with Detective Steve Mooney. While not being provided with the evidence obtained by the police, the respondent was informed the case against the applicant was strong. Detective Mooney advised the respondent not to speak to any staff about the matter as it may compromise the police investigation. The respondent complied with the police request. The respondent's representatives returned to the Club and decided that the applicant should be dismissed.

12 The next day, 8 April, the meeting with the applicant was reconvened. She was informed that her employment was to be terminated. Mr Ticehurst sought details of the suspect till transactions. He was told that this data would be provided after checking with the police. The applicant was provided with a termination letter and Employment Separation Certificate which disclosed the reason for termination as "failure to account".

13 On 27 April 2000, the applicant's Union, the Australian Liquor, Hospitality and Miscellaneous Workers Union, Liquor and Hospitality Division, New South Wales Branch ("the Union") filed a claim of alleged unfair dismissal pursuant to Pt 6 ch 2 of the Act.

14 The criminal proceedings were conducted over four days and concluded on 20 February 2001 when his Worship, Mr P Moon, dismissed all charges against the applicant. It is pertinent to quote his Worship's concluding comments from the extract of his Bench Summary (Ex"4"): Of course these are serious criminal allegations and the prosecution bears the heavy onus throughout the case to prove each and every element of each offence beyond a reasonable doubt. There is no onus on the defendant to prove anything. She has pleaded not guilty to each of the offences. She made no admissions to the police relating to the charges. Of course the prosecution case in this matter is a circumstantial one. They rely on the defendant being present at the club on the days of deficiencies that have been recorded. The prosecution case is that the defendant was the common factor in all the matters. The prosecution rely on her presence at the club at the time of each deficiency being recorded. The Crown case is that she was the only person present on each occasion that the transactions were recorded and that there was no return of alcohol as recorded on the till. Of course the prosecution must prove beyond a reasonable doubt that she and only she was responsible for the deficiencies. Evidence given to the Court clearly shows a system existing at the Cootamundra Ex-Servicemens Club which was fraught with dangers. The system of balancing the tills, the mixing of funds and the accountability of the till operators certainly left the club vulnerable to losses. Many, including the defendant, would have had access to the tills and the club's monies to incur the losses that have been complained of. The system in place at the time of these alleged offences makes it impossible to find with any certainty who caused the deficiencies. Any one of a number of persons, including the defendant, had the opportunity to commit the offences but I have to be satisfied beyond a reasonable doubt that this defendant committed the offences as charged. I certainly have some doubts as to what the defendant's role was and some suspicion but, as has been stated, suspicion is not sufficient to satisfy the Court beyond a reasonable doubt that the defendant committed each or any of the offences as charged and EACH OF THE INFORMATIONS WILL BE DISMISSED.

15 Despite the dismissal of the criminal charges, the respondent maintained its view that the applicant was responsible for the cash discrepancies and refused to reinstate her.

16 The Union seeks the applicant's full reinstatement without loss of continuity and with payment for all income lost from the date of dismissal to reinstatement.

17 The applicant provided affidavit and oral evidence. It is fair to say that she has consistently and strenuously pleaded her innocence of any wrongdoing.

18 The applicant said that when she was interviewed by the police on 15 March 2000, she believed the police were wanting to speak to her about a break-in at the Club on the previous weekend. When the police told her that thousands of dollars had been stolen from the Club by refunding cartons of packaged beer, she said she was shocked.

19 The applicant gave evidence that all employees would count the till takings. She had explained to the police that on occasions "hundreds of dollars" (sometimes up to $500) would be over at the end of the night and these excesses were given to the supervisor on duty. She gave the police the names of the supervisors and acting supervisors. The excesses would not be sent to the office, but would be used to "balance up" in other areas of the Club. She had been directed to do this, but was concerned she may have been doing something wrong. On one occasion she had been criticised by a supervisor, Mr Ray Loiterton, for sending excess monies to the office.

20 The applicant said the Police had not accused her of stealing money - rather that the unusual refunds had something to do with the hundreds of dollars over after each shift.

21 There were four tills (three in the bar and one in the bistro area) all linked to one computer system. The tills had pre-set functions. The applicant gave evidence that staff members were given ten minutes training when the new computer till system was introduced. In the course of training, nothing had been said about the refund function on the till. The applicant said no employee had their own access number to the tills. Five or six employees might all be using the one till on a single shift. She and other staff had a few problems with the new tills. When she complained to Mr Kent about the problems nothing was done.

22 The applicant said she had never issued a refund, never used the refund button and had never seen a refund done. She said that approval was necessary from a supervisor if a refund was requested by a customer.

23 The applicant made a number of allegations about other staff and supervisors. She alleged that one supervisor, Lynne Cudmore, (also the Union co-delegate) manipulated the rosters by favouring employees she liked. Ms Cudmore allowed staff to drink while on duty. She drank on duty and cashed personal cheques at the Club in order to play the poker machines herself.

24 The applicant believed other staff were responsible for the missing money. She couldn't say who, nor had she seen anybody taking money from the tills. She gave evidence that bistro staff often came behind the bar and no one monitored or observed their movements.

25 The supervisors named by the applicant were called by the prosecution in the criminal proceedings. The applicant claimed that the supervisors had lied to the police over the large amounts of money over each night and later "changed their story" in the local court. The applicant said when she found out the supervisors were lying, she believed she had been "put in a corner". The applicant wanted to expose them for drinking behind the bar. She accepted that her allegations were "damaging" to those she accused of lying.

26 All the persons named by the applicant were still employed by the respondent. She now hoped the Club's cash handling practices had been corrected. In seeking reinstatement, the applicant said she could work with the people she had made serious allegations about.

27 The applicant claimed that the respondent's practices made it easy for money to be stolen, as had happened in the Keno area. She claimed money was missing from everywhere and cited $11,000 as missing from the wine and spirits stock. She said the till monies never balanced and the till takings were distributed across all sections. No one checked the computerised records or matched packaged beer sales with the stock held. Management was never on duty at night or on weekends. The respondent did not issue till floats to individual employees. There was no verification or counting of the till takings when another employee took over the shift.

28 The applicant deposed that Mr Kent would come in to the Club maybe two out of four weekends. In cross examination, the applicant said Mr Kent would drink every day after work (from around 5.30pm) and be in and out of the Club all night. The respondent's board members had condoned Mr Kent's embarrassing behaviour. The applicant claimed that Mr Kent regularly came behind the bar when he was off duty. He was often intoxicated and " mucked around with the cash register ". She said other staff had " chipped him for it ".

29 The applicant said she tolerated these conditions because there was no other employment in town.

30 The applicant gave evidence of a meeting with Mr Kent and Mr Loiterton in the car park on the day she was interviewed by the police. Mr Kent told her that she was not welcome at work and that he had told the police she had stolen the money. If he was wrong, he said he would "give you my deepest apology".

31 The applicant professed her innocence, complained she had bills and a car to pay off and said she would sue the Club. Mr Loiterton had said he was not involved and was "just sitting with John" (Mr Kent).

32 In cross examination, the applicant said that Mr Kent made no mention of suspension or dismissal. She was shocked by what Mr Kent had said, but didn't believe her employment was in jeopardy.

33 The applicant said she spoke to Mrs McGrath on many occasions after her suspension on 15 March 2000. Mrs McGrath had fixed the problem of her being suspended without pay. This was in breach of the Award. The applicant said she had not approached Mr Ticehurst to assist her, as he was on sick leave at the time.

34 The applicant described her version of the conversation at the disciplinary meeting on 7 April 2000.

35 The applicant had explained that the tills were generally over by large amounts. These amounts would be used to balance the tills in other areas. If not used, the excess monies would be placed in Lynne's (Cudmore) drawer. The applicant said she didn't know what was then done with the monies.

36 The applicant said that when Mr Ticehurst asked to see documentation relevant to the allegations, Mr Kent refused to provide it. The applicant accused Mr Kent of hiding the documentation behind his back. She was not provided with details of the dates or times the transactions were said to have occurred. However, Mr Vesperman said he felt the data could be provided to her at a later date.

37 After a short adjournment, the applicant was informed that the respondent was intending to speak to other staff and the police.

38 At the end of the meeting, the respondent gave no indication that the applicant was to be dismissed.

39 At another meeting the next day the applicant said that Mr Vesperman (it was in fact Mr Kent) told her that he had spoken to other staff and the Police. The applicant said she later learnt that the management had not spoken to the staff - only the police. Mr Kent said he had no alternative but to dismiss her from employment. No documents or statements from other employees were provided at this meeting as had been requested by Mr Ticehurst.

40 The applicant said it was never explained to her what "failure to account" meant on her separation certificate.

41 In cross examination, the applicant was shown the roster book filled in with her own handwriting (Ex"B") and refund printouts (Ex's "C","D","E","F","G","H" and "I").

42 The applicant described the roster book as an "honesty book". It was not always filled in on the same day. The applicant said that the roster book was inaccurate as employees would write in their hours and breaks at a later time. The actual times taken for breaks would often be different to those in the roster book. She described the procedure as "guesswork".

43 The applicant confirmed various entries in the book as times she was at work. She confirmed that these times matched entries on the refund printouts when refunds of multiple packaged beer occurred. She confirmed that when she was on annual leave there were no refunds of packaged beer. The applicant claimed that the unusual refunds ceased before she went on leave. She was unable to say if they resumed after her leave. The evidence was that they had.

44 When asked if she could explain why the respondent's records read this way, she said that she must have been pressing the wrong buttons. In any event, hundreds of dollars had been handed to the supervisors at the end of each shift.

45 The applicant said she had applied for a couple of jobs since being dismissed over two years ago. She had not undertaken any retraining. However, she had registered with every employment agency in the region. She believed her name had been tainted by the accusations against her and this contributed to the difficulty in obtaining work. As her family lived in the area, and it was not easy to pack up and move to another town.

46 At the time of the applicant's dismissal, Mrs Susan McGrath was the Divisional Secretary of the Union. Mrs McGrath deposed that on, or about 22 March 2000, she was contacted by the applicant concerning her suspension by the respondent. The applicant had told Mrs McGrath of the circumstances of her suspension, that the police were involved, but no charges had yet been laid. Mrs McGrath described the applicant as being "distraught and distressed".

47 Mrs McGrath made phone representations to Mr Kent that suspension, without pay, was in breach of the Award. The applicant's pay was resumed. She had not discussed the reasons for the applicant's suspension with Mr Kent. However, she told him that a union official would be attending any disciplinary meetings. Mr Kent seemed happy with this outcome. She said Mr Kent had not mentioned the missing money. Mrs McGrath had expressed concerns to Mr Kent about the respondent's investigation of the matter.

48 Mrs McGrath said she had a number of phone conversations with the applicant and Mr Ticehurst. On 6 April, Mr Ticehurst advised her of the meeting to be held the next day. Mrs McGrath advised him to attend. After the meeting Mr Ticehurst informed her that the respondent refused to provide all the documentation it had in respect to the allegations against the applicant. Mrs McGrath believed there was no discussion of dismissal at this stage. There was to be an investigation into a serious matter.

49 Late on 7 April, Mr Ticehurst phoned Mrs McGrath to advise of a second meeting the next day. He requested a Union official be present. However, as this could not be arranged, Mrs McGrath asked him to attend with the applicant. After this meeting, Mr Ticehurst informed Mrs McGrath that the applicant had been dismissed for "failing to account".

50 Mr Geoffrey Ticehurst was employed by the respondent as a supervisor. He had twenty-five years' service and retired on 7 April 2000. Mr Ticehurst had been the Union delegate from 1978 until his retirement.

51 Mr Ticehurst deposed that Mr Kent would often be observed drinking in the Club after his knock off time. At times, Mr Kent would come behind the bar. He said he was always on duty and was just "checking up".

52 Mr Ticehurst described the respondent's practice of balancing the till takings by transferring monies between tills and floats. Generally, this would occur at the end of the night shift. Previously, the practice had been to count the takings twice a day. Mr Ticehurst said the bar tills were often over hundreds of dollars at a time.

53 Mr Ticehurst gave evidence of the lack of training when the new tills were introduced. Employees were not provided with an operator's manual. He said when the new tills were installed, four or five employees were taught for half a day or so. They then trained the other employees.

54 Mr Ticehurst said he was first informed of the applicant's suspension on 6 April by Mr Loiterton. He had not spoken to the applicant until the meeting on 7 April. He was unaware that charges had been laid against her at that time.

55 Mr Ticehurst said that at the meeting on 7 April 2000, he took exception to the way the applicant was refused entry to the Club. He believed that such serious matters should not be discussed in the Club car park.

56 Mr Ticehurst sought copies of the till rolls, computer printouts and stocktake sheets. This was refused. No specific times and dates were identified by Mr Kent. Mr Vesperman overruled Mr Kent and agreed to provide the documents. They were never provided. Mr Ticehurst sought the documents in order to establish if there were any deficiencies. He said that he had, at one time, been accused of taking money from the respondent, but when documents were provided, the accusations were unable to be proven.

57 Mr Ticehurst said Mr Kent had referred to the unusual refunds on cartons of beer. Mr Ticehurst said in twenty-five years, he hadn't conducted a refund of packaged beer and wouldn't know how to. Mr Kent had said that the applicant was on duty on each occasion the refunds had occurred. Mr Ticehurst said he had spoken to other employees. They had told him they had never seen anybody take any money from the tills.

58 At the end of the meeting Mr Kent had said that Management wished to speak to other staff and the police. The respondent would get back to the applicant to arrange another meeting. Mr Ticehurst had the impression the matter was still under investigation. There was no indication the applicant's employment was in jeopardy. Mr Ticehurst said that neither he, nor the applicant, were involved in any further meetings with other staff or the police.

59 At the next day's meeting Mr Kent said the respondent had conducted its own investigation and had no hesitation in dismissing the applicant.

Mr Ticehurst said there was no new information offered by the respondent since the day before except the Club had been to the police. Mr Ticehurst asked again for relevant documentation. No explanation was provided as to why it couldn't be provided.

60 Soon after, Mr Ticehurst advised Mrs McGrath of the applicant's dismissal. He believed Mrs McGrath contacted the Club and unsuccessfully sought the applicant's reinstatement.

61 During the proceedings, the Commission requested an opportunity to view the operation of the tills in the Club's bar area. During the inspection the Commission was informed that packaged beer is not stored in the bar area. If a sale is made across the bar, the item must be obtained from the cellar.

62 The till operation was explained and demonstrated by the new Secretary Manager, Mel Irvine. The inspection revealed that, at the time of the unusual transactions in 1999/2000, there was no override code to engage a refund. (It now requires a special code). Any operator could perform the function by a series of key strokes. This resulted in the till takings being reduced for the amount of the false refunds. At all times, when a refund is conducted, the till will open.

63 Ms Irvine demonstrated it was possible to refund ten non-existent items by using nine keystrokes and the code number.

64 Ms Irvine said the refund reports are generated and printed in the office. However, the actual transaction cannot be performed in the office.

65 Mr Martin Sainsbury was previously employed by the Registered Clubs Association of New South Wales as an Industrial Relations Officer. He had advised the respondent in respect to the applicant's suspension and dismissal.

66 Mr Sainsbury attended the 7 April meeting. He said Mr Kent informed the applicant that the meeting was to determine her future and that the police were involved. Mr Sainsbury said that the applicant was informed of the unusual number of refunds of packaged beer and that she was the only employee present on all occasions the refunds occurred. She was asked to provide an explanation. She had said it may have been that she had made errors with the computerised till system. The applicant had said the tills were always over and that the surplus monies were usually given to the supervisors. She had named the supervisors.

67 After a short adjournment in order for the respondent to consider the applicant's explanations, the applicant repeated that the excess monies were handed to the supervisor on duty. She said she had never taken any money. Mr Kent ended the meeting by advising the applicant the respondent needed more time to investigate the matter. She would remain suspended on pay. Mr Sainsbury said that no decision had, at that time, been made to dismiss the applicant.

68 That afternoon, Mr Sainsbury accompanied Mr Kent and Mr Vesperman to the Police Station. There they met Detective Steve Mooney. Detective Mooney informed them that the police evidence pointed to the applicant as the only employee involved in the suspect transactions and he felt quite sure the charges could be proven. The evidence was confidential and could not be shown to the respondent's representatives. Detective Mooney told them that the Club should not speak to any other employee as it could jeopardise the investigation. Mr Sainsbury agreed the police provided no physical evidence of the applicant's involvement.

69 On returning to the Club, it was decided the applicant was responsible for all the unusual refunds and she should be dismissed. Mr Sainsbury said, at no stage prior to this decision, had any decision been made to dismiss the applicant. Mr Sainsbury advised Mr Kent to advise the applicant the next day of her dismissal.

70 In cross examination, Mr Sainsbury was asked about the disciplinary procedures under the Award. He agreed that an employee or his/her representative should be provided with all relevant material when faced with serious allegations. Mr Sainsbury deposed that documents were available for review during the 7 April meeting, but not provided directly to the applicant or Mr Ticehurst. However, the documents were not an exhaustive list of incidents. Mr Sainsbury believed the respondent complied with all of its obligations under the Award.

71 Mr Sainsbury agreed he had not personally viewed all the records relied upon by the respondent. He was unaware that the roster documents were not completely accurate. However, he said he would not have changed his opinion of the matter even if he had known this. Mr Sainsbury agreed there were no statements from other employees. He had relied on the police investigation.

72 Mr Jason Baldock has been employed by the respondent as a Supervisor, Bar Attendant and Cellarman. He had worked a number of shifts with the applicant (about two a week). He said when the money was counted at the end of each shift, the applicant would often seem curious about whether the tills were over and by how much. However, Mr Baldock agreed that at no time had he seen the applicant use the refund button or act in an inappropriate or suspicious manner.

73 Mr Baldock referred to an incident on 8 January 2000 when the back till was "ridiculously over" by an amount of $180.00. The applicant had asked a number of times about the till. He recalled this incident because, having worked at the Club for five years, he had never known the tills to be over so much as that night. The usual over amount was $40 or less. He had told the police of this incident when questioned.

74 Mr Baldock deposed that the bistro staff did not need to walk past the tills in order to collect their floats from the safe.

75 Mr Baldock said on 21 October he worked with Rodney Crowe, Ned Miller, Roy Loiterton and the applicant. Mr Baldock had conducted no refunds and had no knowledge of how to refund cartons of packaged beer. He had never seen it happen. Mr Baldock added that all staff knew how to refund for staff coffees.

76 Mr Baldock deposed that he filled in his own start and finish times and breaks in the roster book. He accepted that the recorded times were not precisely accurate.

77 Mr Baldock said he received about twenty-five minutes training when the new tills were introduced.

78 In cross examination, Mr Baldock expressed reservations about sharing tills with the applicant if she was reinstated. He believed there remained some doubt, notwithstanding the outcome of the criminal proceedings. He couldn't say if there would be any operational difficulties if the applicant was reinstated.

79 Mr Rodney Crowe had been employed by the Club as a Supervisor, Cellarman and Bar Attendant. Mr Crowe provided affidavit evidence. He was unavailable, for personal reasons, to give oral evidence.

80 Mr Crowe had been interviewed by the police. He told the police he had not worked in the bar for some months and was working in the cellar on day shift. The police told him he was the acting supervisor with the applicant on two occasions when the suspect refunds were made.

81 Up to this time, Mr Crowe had not suspected the applicant. However, as only he and the applicant were able to do refunds on these occasions and he wasn't involved, the applicant could be the only person responsible. He was extremely disappointed as he regarded the applicant as a mate.

82 After the applicant was barred from the Club, she had told Mr Crowe she had been accused of stealing money involving refunds of cartons of beer. She said it may have been a mistake. Mr Crowe advised her to get a solicitor.

83 Mr Crowe deposed that he had never seen a refund for packaged beer - not even from the cellar. He said it was rare for the tills to be over. However, if the tills were over, it was usually only by a small amount.

84 Mr Raymond Loiterton was employed by the respondent for twenty-eight years. He resigned as a supervisor, for medical reasons, on 10 April 2002.

85 Mr Loiterton accompanied Mr Kent on the day the applicant was suspended from employment. He was to be a witness. He deposed that the applicant reacted "quite badly" to her suspension. He said she was "very, very upset". She told Mr Kent she told the police she had not stolen money from the Club. The applicant had told Mr Loiterton that she would have thought he had more trust in her. Mr Loiterton said he was not involved and was "just there with John" (Kent).

86 Mr Loiterton prepared a report of the applicant's suspension (Ex"6"). The report was prepared twelve months after the event. In the report Mr Loiterton referred to this incident as "the day of termination". In oral evidence, Mr Loiterton said Mr Kent had told him that the applicant was to be suspended.

87 Mr Loiterton was interviewed by the police. He identified two shifts in October and November 1999 when the suspect refunds of packaged beer had occurred. He said he had not conducted any refunds or witnessed anyone else doing so. On the many occasions he worked with the applicant, he had never seen her refund packaged beer or remove money from the till in a suspicious manner. He had never seen her using seventy keystrokes on the till at the one time. However, Mr Loiterton said that when the applicant counted the till takings, she would often do so at the back bar area instead of the Keno area.

88 Mr Loiterton confirmed that employees recorded their own times in the time book. He said rosters were posted a fortnight in advance. The rosters were a "guideline" only. The supervisor was responsible for when employees took their breaks according to how busy the bar was at the time. The time books were therefore not completely accurate. No one checked the accuracy of the entries made by the employees themselves.

89 Mr Loiterton deposed that he received about half an hour's training when the new tills were introduced. There were occasional difficulties in using the tills and he had only experienced problems with the tills on two or three occasions. He had never pressed the till ten times to make a correction. Mr Loiterton deposed that all staff knew how to conduct refunds for staff coffees. However,to his knowledge, no-one knew how to refund packaged beer.

90 In response to how often Mr Kent would be in the Club on weekends, Mr Loiterton deposed that Mr Kent would go home to Canberra every weekend he had the opportunity to do so.

91 Mr Loiterton said, to his knowledge, no one was employed to replace the applicant. Her shifts were shared by other employees.

92 At the time of the applicant's dismissal, Mr Gordon Vesperman was President of the Club. He had been informed by Mr Kent in early 2000 of a problem with missing monies made through the ringing up of refunds for packaged beer. Mr Vesperman said this had never happened in fifty years.

93 Mr Vesperman asked Mr Kent to investigate the matter. After comparing the unusual refunds with the employees' rosters, Mr Kent established that the applicant was the common staff member on duty when they occurred. However, Mr Vesperman said he was not provided with any statements from staff or patrons. He later became aware that the applicant had been interviewed by the police and charged.

94 Mr Vesperman was involved in meeting with Mr Kent and Mr Sainsbury on 7 April 2000. Mr Kent had said the losses could be as high as $10 - $15,000. Evidence obtained by the police highlighted losses of $7 - $8,000. Mr Vesperman was shown the till printouts (Ex"F") and rosters for the same period. He said that while he did not have direct knowledge as to how the roster worked, he believed the rosters to be correct.

95 Later that day, Mr Vesperman attended the meeting with the applicant. He said Mr Kent put an outline of the cash discrepancies and asked the applicant for an explanation. Mr Kent had referred to certain documents. He did not provide the documents to the applicant. The applicant denied making refunds and said she had no need to do so.

96 When it was pointed out that she was on duty on all occasions of the transactions, the applicant said she may have been pressing too many buttons. Mr Kent explained that this would lead to the tills being over - but they always balanced. The applicant had said that the tills were always over and the excess monies were handed over to the supervisors. Mr Vesperman said the correct procedure was to place a note in the till which would then be checked by the Secretary/Manager or Mrs Armstrong or Mrs Selwin (supervisors).

97 After a short adjournment the meeting reconvened. Mr Kent asked for further explanations. The applicant repeated that excess monies were handed to supervisors. She said maybe she had done something wrong - but she had never taken any money. Mr Kent advised that the Club required further time to consider her explanation and further investigate the matter. She would remain on paid suspension.

98 After the meeting, the management decided that they would speak to the police. Later that day Mr Vesperman, Mr Kent and Mr Sainsbury met Detective Mooney. Detective Mooney had said there was no evidence of the involvement of any persons other than the applicant. He believed the criminal charges against the applicant would be proven. Management asked to see the evidence. However, Detective Mooney said it was confidential. He asked the respondent not to speak to any staff as it may compromise the police case.

99 Mr Vesperman, Mr Kent and Mr Sainsbury discussed the situation on returning to the Club. It was decided the applicant's explanation was unacceptable and that she should be dismissed. Mr Vesperman said a board meeting was not necessary for this purpose 100 Mr Vesperman said the decision was made on the police advice of a strong case against the applicant and the respondent's own investigation that the applicant was the common staff member involved in all the suspect transactions.

101 Mr Vesperman acknowledged, however, that he had never observed the applicant performing a number of multiple keystrokes or removing money from the till in a suspicious manner. He was at the Club on most days.

102 The next day, Mr Vesperman attended the meeting at which the applicant was informed of her dismissal. Mr Vesperman agreed there was no fresh or additional information put to the applicant at this meeting.

103 Notwithstanding the dismissal of the criminal charges, Mr Vesperman still genuinely believed that the applicant had created the refunds and taken the money.

104 In cross examination, Mr Vesperman was shown board minutes from June 1999 to March 2000 which considered monthly reporting from Mr Kent of the till "overs and unders". Despite Mr Vesperman being told about the refunds in late 1999, there is no reference in the minutes to the refunds of packaged beer The stocktaker had flagged the discrepancies in packaged beer stocks some months before the police were involved. Mr Kent had disagreed with these reports and provided explanations for the discrepancies. The Board accepted his assurances. Other discrepancies were identified in the stock levels for wine and spirits.

105 Mr Vesperman was most annoyed that he was not informed of the refunds for several weeks and that it appeared to have been happening over an eight or nine month period. Mr Vesperman attached some fault to Mr Kent and wanted to dismiss him. However, the Board would not agree to do so.

106 Mr Vesperman believed that reinstating the applicant would create an "invidious position" for the staff.

107 Mr Clive Miller has worked as a casual bar attendant at the Club since 1967. Mr Miller deposed that his training on the new tills was five to ten minutes.

108 He further deposed that it was very rare for a carton of beer to be returned for a refund. He was not aware of the refund button and had never used it. The pre-coded staff coffee button had nothing to do with the refund button.

109 Mr Miller further deposed that he worked with the applicant probably twice a week. He had never seen the applicant remove money in a suspicious manner, operate the refund button or use up to seventy keystrokes at one time.

110 Mr Miller said he worked a shift with the applicant, Mr Baldock, Mr Loiterton and Mr Crowe on 21 October 1999. Mr Miller had not conducted any refunds for packaged beer, nor was he aware of any cartons returned.

111 Mr Miller described the staff roster as a "guide". He gave an example of his previous night shift when his break was scheduled for 7.30pm. He actually took the break at 8.00pm because the bar was busy. Mr Miller said the information in the time book is left to the individual to fill in from the roster sheets. He added that discrepancies related only to break times and not start and finish times.

112 Mr Miller said that prior to the applicant's dismissal he had no reason to doubt her honesty. However, if she was reinstated it would be a "difficult situation". However, Mr Miller agreed reinstatement wouldn't affect the Club's trade or membership levels. SUBMISSIONS

113 Mr Acev submitted that the dismissal of the applicant was substantively and procedurally unfair. He put the following matters as demonstrating the applicant was denied procedural fairness: 1) The applicant was suspended without pay in breach of the Award.

2. At the disciplinary meetings on 7 and 8 April 2000, the applicant was denied access to all the data and information held by the respondent. As a result, she could only profess her innocence and make no admissions.

3. The applicant was not informed of what the police had told the respondent. Obviously, she could not respond to what she was not told. 4) The respondent did not conduct a full and thorough investigation of the allegations. It had not even interviewed it's own staff.

114 Mr Acev cited Rich River Golf Club (ACN 001 357 071) v Lynette Anne Power (unreported) Full Bench, Matter IRC640 of 1995, 12 May 1995, and Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 in support of his submissions on procedural unfairness.

115 Mr Acev referred to the specifics of the allegation against the applicant. He said the applicant and all the employee witnesses had given evidence that instruction on the new till operations was only ten to twenty minutes. The instruction did not involve how to utilise the refund button. All the witnesses said they had never refunded packaged beer.

116 The inspection of the till operation had demonstrated that to conduct a refund function for ten items of packaged beer required ten key strokes. From the computer refund records, multiple refunds would require some fifty continuous key strokes in a few minutes. Mr Acev highlighted the evidence which demonstrated that no one ever saw the applicant operate the till in this manner. No one saw her remove money from the till in a suspicious manner.

117 Mr Acev submitted that Mr Kent's investigation was inadequate. Mr Kent compared the suspicious transactions against the employee rosters and deduced that the applicant was the common denominator. However, the evidence was that the rosters were only a guide and did not accurately reflect the actual hours worked. Moreover, the rosters were not the same as the times recorded in the wages book. Employees would often write their times at a later time from memory. Mr Kent's assumption was, therefore, unreliable.

118 Mr Acev put that the other common denominator was Mr Kent himself. The evidence was that Mr Kent was always at the Club and operated the tills. Mr Kent was not available to give evidence in his own defence.

119 The evidence was that in respect to cash handling there was no procedure for allocating particular tills to individual staff. There was a practice of distributing monies at the end of a shift to "balance up" the total takings from all areas. There was no requirement for monies to be tallied when one employee handed over to another at the conclusion of a shift.

120 These practices were strongly criticised by Mr Vesperman. Mr Vesperman was equally critical of Mr Kent's failure to take prompt and appropriate action. The loss to the Club could not be exactly established. It was estimated at between $8,000 and $9,000.

121 Mr Acev relied on Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch (on behalf of Maree Ploner) and Westport Bowling Club Limited [2001] NSWIRComm 205 as disclosing circumstances not dissimilar from those in this case.

122 Mr Acev dealt with the relevant law applicable to this matter.

123 He submitted that the respondent had not discharged the onus of proving the allegations against the applicant. See Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70. Mr Acev accepted that, although this case is to be determined on the civil standard of proof (Briginshaw v Briginshaw (1938) 60 CLR 336), the Magistrate's decision was soundly based. His decision throws doubt on whether the applicant's termination was lawful.

124 Mr Acev sought the applicant's reinstatement without loss of continuity and with full remuneration from the date of dismissal. The evidence was that her job still existed and that, despite some reservations, other employees would be willing to work with her (see Perkins v Grace Worldwide (Aust) Pty Ltd, 72 IR 186).

125 Mr Schmitke, opened his submissions by referring to the meaning of the words "harsh, unreasonable and unjust" (see Davey v Enacon Parking (unreported) Connor C, Matter IRC 1866 of 1995, 13 December 1995) and the civil standard of proof in unfair dismissal proceedings. He submitted that, on the balance of probabilities, the applicant was involved in the misappropriation of monies to an extent serious enough to warrant her dismissal. The dismissal of the criminal charges would have no impact on this Commission's decision. See Australian Workers' Union, New South Wales Branch v Colgate Palmolive, 27 IR 420.

126 The ninety-five transactions from late September 1999 to March 2000 involved five hundred and three cartons of packaged beer with a value in excess of $12,000. Twenty cartons had been refunded on a single day.

127 In relation to the inspection of the till operation, Mr Schmitke said it revealed that was indeed possible to conduct a refund for six cartons of beer with thirteen key strokes in less than thirty seconds.

128 Mr Schmitke said the respondent had sufficient information upon which to base its decision to dismiss the applicant. Despite Mr Vesperman's confusion over rosters and time books, Mr Schmitke put that it was the comparison of the time book which linked the applicant to the packaged beer refunds. There were no unusual refund transactions when the applicant was not engaged to work or she was on leave.

129 Mr Schmitke said Mr Kent was not always at the Club when the multiple transactions occurred - he was often in Canberra on weekends. Thirty-four of the multiple transactions occurred over five consecutive weekends. Twenty-three unusual transactions occurred at night after 10.00pm.

130 Mr Schmitke contended that other issues raised by Mr Acev, such as lack of training, till variations and the failure to create refund reports does not answer the clear evidence that links the applicant - and only her - to every unusual transaction.

131 Mr Schmitke submitted that the applicant was not denied procedural fairness (see Byrne & Anor v Australian Airlines (1985) 185 CLR 10 and Loty & Holloway and Australian Workers Union (1971) AR NSW 95). She knew the allegations against her. The applicant had been interviewed by the respondent three weeks after the police had spoken to her. That meeting was attended by a union delegate, Mr Ticehurst. He was also well aware of the nature of the allegations against the applicant.

132 Mr Schmitke submitted that it was reasonable that the respondent was asked by the police not to talk to other staff members. However, the respondent had sufficient documentary evidence to justify its decision. Moreover, Mr Schmitke submitted that Magistrate Moon had doubts and suspicions about the applicant's denials of involvement in the fraud.

133 Mr Schmitke said that Mr Kent had not been called to give evidence because he couldn't be located and was unlikely to attend.

134 The respondent's submission was that the applicant's claim should be dismissed. However, if the Commission was to intervene, Mr Schmitke said that reinstatement or re-employment was not practical. Concern had been expressed by other employees if the applicant was to return. Mr Schmitke referred to the applicant's evidence of accusations against other staff and supervisors. It would be impossible for her to work with them in light of these accusations. There was a loss of trust and the length of time (two years) since dismissal would create disruption if the applicant was reinstated.

135 Mr Schmitke put that the delay in the proceedings was brought about largely by the applicant and her union. The respondent therefore should not be forced to pay any back pay. In any event, Mr Schmitke said, the applicant has only applied for three jobs in two years and has not sought to mitigate her loss.

136 Mr Schmitke relied on the authority of Bi Lo Pty Ltd v Hooper, 53 IR 224, as being analogous to the circumstances in this case.

137 In reply, Mr Acev said that the respondent had only relied on "presumptions"(sic). There was no tangible link between the applicant and the unusual transactions.

138 Mr Acev put that the respondent allowed the situation to fester from September 1999 to March 2000 and did nothing to warn employees about the improper use of the refund button. Mr Acev emphasised that there were occasions when the applicant was on duty when no unusual transactions occurred.

139 Mr Acev submitted that the respondent's own characterisation of the misconduct - "failure to account" - properly reflected the applicant's mistakes. It didn't reflect or acknowledge the allegation of theft.

140 Mr Acev said the delay in these proceedings was largely brought about by the criminal proceedings.

141 It appears to me that the principles discussed by the Full Bench in Wang and Others v Crestell Industries Pty Ltd and Another, 73 IR 454, have relevant application to these proceedings. One of the applicants in Wang had been charged with theft. Criminal charges were later dismissed by a Magistrate. Mr Wang and two others (who were not charged) were alleged to be involved in the theft of company property. All three were dismissed for serious misconduct. At first instance Connor C found, on the balance of probabilities, that the allegations were proven and declined to intervene in the employees' dismissals.

142 The Full Bench dismissed the appeal against Connor C's decision and referred to the principles the Commissioner had correctly applied: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. See also Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees Association (NSW) (1989) 27 IR 299. We should further observe that the evidence in a reinstatement case involving criminal activity may well establish that the employee was guilty of conduct which, whilst falling short of criminal conduct, nevertheless constitutes serious and wilful misconduct justifying dismissal and refusal of reinstatement. We are satisfied that the commissioner applied the correct principles in relation to both the onus of proof and the standard thereof applicable in the circumstances of this case.

143 Watson J in Australian Workers Union, NSW Branch v Colgate-Palmolive Pty Ltd, 27 IR 420, usefully summarised the notion that acquittal of a criminal charge does not automatically result in an order for reinstatement. At p427 his Honour said: It is not unusual for events which lead to the dismissal of an employee to involve criminal proceedings. It has been held that an acquittal does not necessarily result in an order for reinstatement. The conclusion of the commissioner could in no way be relevant in deciding the police charge. Similarly the conclusion of the magistrate does not determine the event in this appeal ( BHP v Plumbers' Union: Re Nemecek (143 IG 252)). That is correct even though, as in this case, the primary basis for dismissal was the same circumstance as was for all practical purposes the very charge dismissed by the magistrate. Notwithstanding that and that it is a proceeding with a different onus of proof involved, it is clear that if the decision of the magistrate in this case is soundly based, it is a factor which would throw considerable doubt on the decision under appeal.

144 In my view, this case pointedly demonstrates the dichotomy between the standard of proof in criminal and civil proceedings. The standard of proof in civil proceedings is embodied in s140 of the Evidence Act 1995: 140. Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged. 145 The approach which the Commission must adopt in Pt 6 ch 2 proceedings was extensively canvassed by a Full Bench of the Commission in Four Sons Pty Limited v Sakchai Limsiripothong, 98 IR 1, in which the Full Bench considered the civil standard in the context of unfair dismissal proceedings and said at paras 10-15: In Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court affirmed the principle that there is only one standard of proof applicable in civil matters, namely, on the balance of probabilities. However, it was held that the strength of the evidence necessary to establish a matter on the balance of probabilities may vary according to the nature or gravity of the fact to be proved. Dixon J stated (at 362): The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

Similarly statements are made in other cases such as M v M (1988) 63 ALJR 108 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. In the last cited case, Mason CJ, Brennan , Deane and Gaudron JJ stated (at 449 - 450): The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud (See, eg, Hocking v Bell (1945) 71 CLR 430, at 500; Rejfek v McElroy (1965) 112 CLR 517, at 519 - 521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear ( Briginshaw v Briginshaw (1938) 60 CLR 336, at 362; Helton v Allen (1940) 63 CLR 691, at 701; Hocking v Bell (1944) 44 SR (NSW) 468, at 477 (affirmed in Hocking v Bell (1945) 71 CLR, at 464, 500); Rejfek v McElroy (1965) 112 CLR, at 521; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at 539 or cogent ( Rejfek v McElroy (1965) 112 CLR, at 521) or strict ( Jonesco v Beard [1930] AC 298, at 300; Briginshaw v Briginshaw (1938) 60 CLR, at 362; Helton v Allen (1940) 63 CLR, at 711; Hocking v Bell (1944) 44 SR (NSW), at 478 (affirmed in Hocking v Bell (1945) 71 CLR, at 464, 500); Wentworth v Rogers (No 5) (1986) 6 NSWLR, at 538) proof is necessary "where so serious a matter as fraud is to be found" ( Rejfek v McElroy (1965) 112 CLR, at 521). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct (See, eg, Motchall v Massoud [1926] VLR 273, at 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (footnotes incorporated)

The Briginshaw v Briginshaw principle is now embodied in s 140 of the Evidence Act 1995. That section provides: 140. Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

The principle in Briginshaw v Briginshaw has been applied by the Commission in unfair dismissal cases when considering allegations against an employee of serious misconduct involving allegations of criminal activity. For example, in Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 463 - 464, the Full Bench said: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding.

Nevertheless, the Full Bench made it clear that: … the evidence in a reinstatement case involving criminal activity may well establish that the employee was guilty of conduct which, whilst falling short of criminal conduct, nevertheless constitutes serious and wilful misconduct justifying dismissal and refusal of reinstatement.

See also Coles Myer Ltd v Shop, Distributive and Allied Employees Association (1989) 27 IR 299 at 304 and Bigg v NSW Police Service (1998) 80 IR 434 at 456.

Ordinarily, the principle in Briginshaw v Briginshaw is applicable to findings of criminal conduct or fraud (see, for example, Neat Holdings ), however, the statements of principle may be applied to allegations of a broader nature. In all matters, it is necessary for a tribunal to consider the nature and seriousness of the allegation made before finding it proved at the requisite level. In this case, the finding made by the Commissioner was that "the termination of the [respondent's] employment was not unconnected with the raising of complaints by him about the alleged work-related harassment".

146 Of course, the usual onus in unfair dismissal cases rests with the applicant to satisfy the Commission that a dismissal was unfair or, more particularly, that it was either "harsh, unreasonable or unjust" within the meaning of the Act (see Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273).

147 However, that onus is reversed where the employee is dismissed for misconduct. The employer must not only make the allegations against the employee, but prove the allegations to the requisite standard.

148 This shift of onus has been considered in many decisions of the Commission. A few citations will be sufficient to demonstrate the point:

149 In Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, his Honour, Hungerford J said: It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street (1947) AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) (1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 at 279 and Homebush Abattoir (1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson (1957) AR (NSW) 547 at 552, 553; North v Television Corporation Ltd (1976) 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved.

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it. In support of his submission on onus, Mr Walton referred to the judgment of Dey , J. in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, in which his Honour clearly held that the necessity for proving misconduct lay upon the party setting it up, namely the employer, and even though the union had the responsibility for establishing a proper case for reinstatement. I respectfully agree with his Honour's conclusion, it being entirely consistent with well established authority. In Shop Distributive & Allied Employees' Association v Jewel Food Stores , 22 IR 1, the former Industrial Commission in Court Session said: We consider in cases where dishonesty is alleged as the reason for summary dismissal, management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out. In coming to such a conclusion, a prudent and fair employer will take into account, where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made. We consider that this same standard should be applied by industrial tribunals when considering reinstatement. 150 In Franklins Limited v Webb, 72 IR 257, after discussing both these authorities, the Full Bench said at p261: Those authorities deal with different points but are nevertheless both applicable to circumstances where summary dismissal has occurred for alleged cause. In this case, the employee was dismissed by the payment of one week's wages in lieu of notice but obviously for cause. The reasoning of the Commission in Court Session in Jewel Food Stores , in our view, is directly apposite and we would apply to these circumstances the same consideration with respect to onus as was adverted to by Hungerford J in Gartrell White.

151 The Commission has very much agonised over this question. For over two years, the applicant has consistently and strenuously denied the allegations against her and offered explanations for the cash discrepancies.

152 The applicant has had seventy charges of obtaining money by deception dismissed in the Local Court. She seeks complete exoneration from the allegations of theft and full reinstatement to her employment.

153 There is little doubt that the effect on her reputation and livelihood have been seriously and adversely compromised by the events of the past two years. The impact must surely be, a fortiori, in a small country town like Cootamundra.

154 As I earlier said, determination of this matter will be based on the civil standard of proof, ie on the balance of probabilities. Notwithstanding the dismissal of the criminal charges, if the Commission finds the allegations are proven according to this standard of proof, it seems inevitable that the consequences for the applicant will not be very much different to those she would have faced if she had been convicted of the criminal charges in February 2001.

155 In para 151 I referred to the applicant's consistent denial of any wrongdoing. Schmidt J observed in Lawrence v Catholic Education Office [2002] NSWIRComm 115: In circumstances where allegations of misconduct arise, it is commonplace for the employee concerned to vehemently protest his or her innocence. So, too, do those charged with and even those convicted of crimes. Nevertheless, decisions must be made by employers, as to whether or not such protestations are to be accepted. The continued making of such protestations, cannot of itself lead to the conclusion that misconduct has not occurred. I think it unarguable that in every such case, there is a risk that a person who has not engaged in the misconduct alleged, is, nevertheless, dismissed or found guilty of an offence with which they are charged. That possibility remains even when a thorough investigation into particular conduct has been conducted by an employer and not the police. The converse possibility also exists. Here the applicant still maintains his protestations of innocence. He has never departed from them. These proceedings are, however, not finally concerned with establishing the applicant's guilt or innocence. That has been dealt with in the criminal proceedings. This application is rather concerned with the question of whether the applicant's summary dismissal in October 1998 was harsh, unreasonable or unjust in the circumstances which then existed.

156 I respectfully adopt her Honour's approach in reviewing the circumstances in this case.

157 It also is apparent that this matter will be determined by the Commission making findings on witness credit - particularly the credibility of the applicant.

158 In addition, it seems to me that the circumstances of this case bring into sharp focus the obligation on the Commission to closely and carefully examine whether, it is open on the evidence, to make an adverse finding against an employee. I referred to this approach in Hill and the Department of Juvenile Justice [2000] NSWIRComm 128 at paras 62-63: 62 In Standley v Electronics Boutique Australia Pty Ltd , IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects.

A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future.

See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten , IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia , IRC5224 of 1998, 10 September 1999. 63 The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so.

159 Before turning to the allegations against the applicant, it is necessary, I think, to make some critical comments on the cash handling procedures of the respondent at the relevant time. These deficiencies were adversely referred to by his Worship Magistrate Moon in February 2001. I note that corrective measures have since been taken and new procedures introduced.

160 The evidence disclosed that till takings were "pooled" at the end of the day. As a result, if there were any "unders or overs" it would be impossible to identify on which till the mistake was made - let alone who made it. There also seems to have been a practice of taking change from one till when others were short.

161 There was no regular or periodic check of the till refund report. The theft involving the refunds was only noticed months after the thefts commenced and then seemingly, by chance. It hardly needs to be said that if the respondent had a regular procedure for reporting refunds, the fraud would have been discovered much earlier.

162 Employees recorded their own start and finishing times and when they went on breaks. No one checked these entries. It seemed very much to be an "honour" system. Shift times were sometimes recorded the next day or even later. Consequently, it was argued that the respondent could not be absolutely certain if a particular employee was on duty when the suspect refund entries were made.

163 Notwithstanding the appallingly sloppy and unprofessional management of the respondent at the time, the fact is that this fraud was on a monumental scale over many months. Thousands of dollars have not been recovered. It is obvious the Club's management practices may well have served as a convenient cover for the theft going undetected for as long as it did.

164 However, it is trite to emphasise that the respondent's failures can, in no way, justify the criminal acts which occurred. Despite Mr Acev's valiant efforts to shift the focus of the case to the respondent's deficiencies as proving the applicant could not be responsible, this is really not the issue. Whether a number of employees shared or inherited the till takings or whether the rosters were not completely accurate, does not address the more fundamental issue of when the refunds of packaged beer occurred. I shall discuss this matter shortly.

165 All witnesses gave evidence that no customer had ever returned packaged beer for a refund. This, of course, is completely logical. Packaged beer would never be returned - unless in exceptional circumstances.

166 Yet there were dozens of refunded packages of beer, as much as twenty cartons on one day. What on earth was going on? Was the applicant involved?

167 In answering these questions I have attempted to balance the arguments in support of the parties' respective positions.

168 Mr Acev's case rested primarily on the following: i) the applicant had been vindicated by the dismissal of the criminal charges against her;

ii) the evidence of all the employees called by both parties was that no person saw the applicant use the refund button or remove any money from the till in a suspicious manner; iii) the applicant had not used and didn't know how to use the refund button;

iv) the employees' rosters and entries in the time book were not accurate and could therefore not reliably prove that the applicant was on duty when the unusual transactions occurred; v) the till takings for various sections of the Club were balanced against the total day's takings. It was impossible therefore, where "unders and overs" occurred, to identify which till had been used - let alone which employee was responsible;

vi) the applicant gave evidence that the till takings were consistently over some hundreds of dollars. This money was given to supervisors. The applicant said these monies were never accounted for. She presumed the supervisors simply kept the money.

169 On the other hand, the arguments put by Mr Schmitke include: i) the evidence is that the applicant was the only employee who was at all times on duty on each, and every occasion, of unusual and multiple refunds of packaged beer;

ii) there was no evidence of packaged beer refunds at times when the applicant was not working, such as when she was on annual leave;

iii) the refund function, as demonstrated on an inspection of the Club, was not complicated. It was able to be accessed without too much knowledge or difficulty; iv) the magistrate expressed his suspicions as to the applicant's involvement, but could not make a finding based on "beyond reasonable doubt".

170 In balancing these considerations, one question has loomed large in my thinking and was decisive to my ultimate conclusion of the matter. Were there any unusual transactions conducted when the applicant was not on duty? If there was, it would point to another person or persons acting, either independently or in concert with the applicant, to defraud the respondent. It seems to me the evidence is palpably clear. There were no unusual transactions when the applicant was not on duty.

171 Mr Acev turned my question around and argued that there were occasions when the applicant was on duty, when no unusual transactions occurred. Unfortunately for Mr Acev, this observation proves nothing. However, the answer to my question most certainly does.

172 Mr Acev drew an analogy with the circumstances in this case to those identified by Harrison DP in Australian Liquor, Hospitality and Miscellaneous Workers Union v Westport Bowling Club. In Westport, his Honour noted that the evidence disclosed that 45 per cent of the cash handling discrepancies could not be linked to the dismissed employee and that some other person/s were involved. His Honour could not find the allegations against the employee proven and reinstated her.

173 In my opinion, Mr Acev's case is not assisted by reliance on Westport. The state of the evidence here is entirely distinguishable from that discussed in Westport. Here the applicant was the only common denominator in all the unusual transactions. No similar transactions occurred when she was not on duty which might point to the involvement of some other person/s.

174 I have also had regard for the applicant's overall credibility. Her credibility must surely be questioned when one considers the ridiculous and implausible allegations made by her against other employees, including supervisors and work colleagues.

175 One allegation was that other staff and supervisors were drinking and gambling on duty. This allegation is immediately suspect when it is considered in light of the applicant's own evidence. It was her evidence that she only raised the issue after learning that other employees would not support her claim of the daily cash overs being handed direct to the supervisors. In other words, it was nothing more than an unsubstantiated "payback".

176 The applicant claimed that the supervisors were responsible for the missing money. The bistro staff may have been involved. Witnesses had lied to the police.

177 This allegation is bizarre. Logically, it must mean that a number of supervisors, many still employed by the Club, had acted in concert to defraud the Club. They all survived unscathed, both a criminal investigation and a criminal trial in which they gave evidence.

178 I would apply the principle reductio ad absurdum to demonstrate the falsity of the applicant's premise by the absurdity of its conclusion.

179 What I find even more extraordinary is that the applicant said she would have no trouble working with these employees who she has accused of being thieves and liars.

180 I would make some further observations on the evidence.

181 There was some rather confusing evidence concerning the applicant's knowledge of the refund function on the tills. At one point she said "nothing was ever mentioned about refunds" (T.p54). Shortly after, she said if a refund was to be given, approval was necessary from a supervisor. This evidence doesn't make sense.

182 In any event, from my inspection of the till functions, I am convinced that it would not take very long at all for an enterprising employee (even by a process of trial and error), to work out how to use the refund function. I reject the applicant's evidence that she didn't know how to use the refund function and had never done so. 183 I readily acknowledge that Mr Acev successfully established that the employee time records and rosters (Ex"B") were not accurate. I accept the evidence that the rosters were a guide and that the time records were filled in by the employees (sometimes long after) and not verified by management. However, the extent of the inaccuracies did not amount to incorrect shifts, but rather small variations in the times taken for breaks. Mr Miller's evidence was that the variations related to how busy the bar was at the time. He said the variations did not relate to start and finish times. I accept his evidence.

184 It is a wide leap of logic to assume, as Mr Acev put, that the records prove the applicant was not on duty at the time. Indeed, there was no evidence that the applicant was somewhere, other than in the Club when the unusual transactions were conducted.

185 I refer to one final matter on the state of the evidence which was somewhat unusual. Mr Kent gave no evidence in the proceedings. He is no longer employed by the respondent. He could not be contacted and apparently was not able to be located.

186 It may be understood from Mr Vesperman's evidence that Mr Kent left the Club's employ on less than amicable terms. This may well explain the failure for him to be found.

187 There may have been some contested issues as to what was said by Mr Kent at particular meetings with the applicant. However, there were more than two people involved. What is plainly evident from the comprehensive documentation produced by Mr Schmitke is that the respondent's decision to dismiss the applicant was based primarily on the documentary evidence it had available to it.

188 It seems to me to be an inescapable conclusion, on the balance of probabilities, that the allegations against the applicant are proven. It follows that the conduct of the applicant was demonstrably inconsistent with an employee's obligations to the employment relationship. Her actions amounted to a fundamental breach of her obligations to act with good faith and fidelity. See Day v Lumley Life, 90 IR 70; North v Television Corporation Ltd (1976) 11 ALR 599; Blyth Chemicals Ltd v Bushnell, 49 CLR 66, and my comments in Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis, and TNT Australia Pty Limited t/as TNT Express [2002] NSWIRComm 46.

189 In my opinion, dismissal of the applicant was, not only reasonably open to the respondent, but the only appropriate response in the circumstances.

190 Mr Acev submitted that the applicant was denied both substantive and procedural fairness.

191 I deal now with the principles in respect to procedural fairness

192 It is obvious the expression "procedural fairness" does not appear anywhere in the statute. Nevertheless, the matters the Commission may take into account when determining an unfair dismissal claim are identified in s88 of the Act. These matters include, but are not limited to, whether: i) a reason for dismissal was given;

iii) an applicant was given an opportunity to make out a defence or give an explanation of his or her behaviour;

iv) any warning of unsatisfactory performance was given;

v) the applicant sought, but was refused reinstatement or re-employment.

193 These matters are discretionary and the Commission may take other relevant matters into account (s88(f)).

194 I would observe that in cases involving summary dismissal for misconduct, particularly of the gravity of the misconduct alleged here, it would be silly to suggest that warnings of unsatisfactory performance are necessary.

195 However, a termination of employment, whether by summary dismissal or on notice, might still be held to be unfair if the process leading to the dismissal was manifestly deficient in offering the applicant procedural fairness (see Byrne & Anor v Australian Airlines; Burke v McGirr (1995) 87 IR 54; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta 87 IR 57; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32, Antonakopoulos v State Bank of New South Wales), Buckman v Burdekin 85 IR 418; Wilson v Department of Education and Training, 100 IR 1 and D & R Commercial Pty Ltd v Flood, 113 IR 344).

196 It seems to me that it would be a rare case indeed which disclosed an absolutely faultless process - free of blemish or mistake. The usual highly charged atmosphere of a dismissal situation will guarantee a less than pristine process.

197 I have no doubt, with the benefit of hindsight, that the dismissal of the applicant here might well have been better handled by the respondent. However, the faults in the process need to be balanced against the gravity of the allegations in the event they are proven.

198 On this point, I refer to my comments in Foster and Woolworths Limited [2000] NSWIRComm 208: … it is now well settled law that proven deficiencies in the process are not necessarily fatal to an employer's decision to summarily dismiss an employee. It is the seriousness of the allegations, if proven, which, in my view, will be decisive in establishing whether the employer's decision to dismiss the employee was reasonably open to it.

199 The appeal in Wang also considered the fairness of the process adopted by the employer in dismissing the employees. The employer in Wang had relied on the advice from the police and did not, it seems, conduct its own investigation by interviewing the employees or providing an opportunity for them to explain their actions or defend themselves.

200 Notwithstanding this obvious denial of procedural fairness, the Full Bench, following the approach in Byrne v Australian Airlines, concluded that the seriousness of the misconduct was such that a lack of procedural fairness did not invalidate the employer's decision to dismiss the employees. See also Bigg v NSW Police Service, Rapp v Wauchope RSL Club, 81 IR 116 and Antonakopoulos v State Bank of New South Wales.

201 The circumstances here, by contrast, reveal the respondent had conducted its own investigation, had interviewed the applicant in the presence of a union representative and provided her with an opportunity to defend herself against the allegation.

202 True it is that there was no new evidence or information between the time the respondent visited the police in the afternoon of 7 April and when the applicant was dismissed the next day. However, in my opinion, at that stage the state of the respondent's investigation provided a sound and sufficient basis for the dismissal of the applicant.

203 Mr Acev complained that certain documents requested by the Union had not been provided to the applicant during the investigation and despite assurances by Mr Vesperman that they would be provided. This constituted unfairness in Mr Acev's submission.

204 In answering this submission, it seems to me that such documents need to be crucial to the capacity of the applicant to defend herself against the allegations raised and/or were such as to deny her the right to know exactly what was being alleged.

205 In respect to the first matter, I can find no evidence that the applicant was denied documents which would have assisted her in defending herself against the allegations.

206 Secondly, there can be no doubt, in my view, that the applicant at all times knew what she was being accused of.

207 The evidence is that the applicant had been interviewed by the police three weeks before the 7 and 8 April 2000 meetings with the respondent. The applicant's own evidence reveals that the police had told her the issue concerned the refunds. She agreed that at the 7 April meeting she knew what the issue was (T.p44-45). The following extract from transcript demonstrates this belief (T.p46): Q When you left the club on that occasion it was clear to you what the circumstances of the investigations were? A Yes

Q And the reason as to why you were being suspended? A It was like a jigsaw puzzle but I put the two together.

208 Clearly, the applicant was not told what the police had told the respondent. However, it cannot possibly be said that the applicant was ignorant of, or misinformed of what was being alleged against her.

209 The evidence is that, at all relevant times, the applicant was represented by her Union, or it acted on her behalf. The Union Secretary, Mrs Susan McGrath had ensured the applicant was suspended on pay when the applicant phoned her to complain about being suspended without pay.

210 Further, the evidence was that the union delegate, Mr Ticehurst, attended disciplinary meetings with the applicant on 7 and 8 April 2000. The applicant was unsure if she had spoken to Mr Ticehurst before the first meeting. Mr Ticehurst said he hadn't spoken to her until the meeting. It seems that Mrs McGrath had organised Mr Ticehurst's attendance.

211 As an aside, and upon which very little turns, I would observe that it is rather curious that a union delegate representing a member on a very serious disciplinary matter would make no contact with the member prior to a disciplinary meeting with the respondent.

212 Mr Acev complained that the applicant was dismissed before the criminal charges were heard and determined.

213 In my opinion, there is no legal or moral obligation on an employer to retain an employee on full pay until criminal charges are determined.

214 Having regard for the usual time it takes to have criminal charges investigated, heard and determined, it would be unreasonable to expect an employer to retain a suspended employee on full pay until the process is completed. Moreover, the employer is entitled to conduct its own investigation and form its own view on the material it has available at the time. See Bi Lo Pty Ltd v Hooper at p229.

215 Mr Acev also claimed that the respondent had not undertaken a full and thorough investigation because it did not interview other employees. The respondent was clearly acting on the request of the police not to discuss the investigation with other staff. Its hands were tied. However, in my opinion, the respondent had a sufficient basis to act as it did on the documentary evidence it had available at the time.

216 Mr Acev complained that the respondent was in breach of the Club Employees (State) Award by suspending the applicant without pay. This was subsequently corrected after Mrs McGrath pointed out to Mr Kent that to do so was in breach of the award. While I accept there was a breach of the Award, the mistake was rectified. I cannot then see how a claim of procedural unfairness can be sustained.

217 The Commission is well satisfied that none of the procedural issues identified by Mr Acev can either individually or collectively be regarded as grounds for a finding that the applicant's dismissal was "harsh, unreasonable or unjust". The gravity of the proven allegations against the applicant far outweigh any procedural deficiencies.

CONCLUSIONS AND FINDINGS 1) The Commission is satisfied that the respondent has discharged its onus of proving the allegations against the applicant.

2. The Commission is satisfied, on the balance of probabilities, that the applicant was responsible for falsely refunding packaged beer on numerous occasions over many months and that she kept the money involved in the transactions.

3. The explanations of the applicant in denying any involvement in the transactions and implicating others are not credible. Such evidence is rejected.

4. The conduct of the applicant was demonstrably inconsistent with an employee's obligations to the employment relationship. Her actions amounted to a fundamental breach of her obligations to act with good faith and fidelity.

5. Any flaws in the investigative process were inconsequential in comparison to the gravity of the applicant's misconduct. As a result, there was no denial of procedural fairness.

6. The Commission can find no grounds which would warrant intervention in the respondent's decision to dismiss the applicant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.