Unfair dismissal cases; mis-use of employer’s credit facility

The Fair Work Commission has dismissed an application for an unfair dismissal remedy brought by a former female employee who had been dismissed because over a three month period she had misused a credit facility of her employer to acquire $101.70 of coffees for personal use and for a colleague. The Commission found that there was a valid reason for dismissal.

“Consideration

[221] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd: 32

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[222] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 33

[223] I will address each of the criteria set out in s.387 of the Act separately. However, before I do so, I wish to address the credibility of the various witnesses. I found all of the Respondent’s witnesses to be credible. I am satisfied that they gave honest evidence before the Commission. Even where Ms Nichol wavered in some parts, where she suggested that Ms Ajax purchased a coffee every single work day, I do not accept Ms Ajax’s criticism of her that she somehow had a vested interest in these proceedings. There is no basis for the Commission to find that Ms Nichol had any interest in the CUA coffee account being charged a relatively modest amount of the relevant period of time. There is no suggestion that Ms Nichol earned any commission or bonus on account of coffee sales.

[224] Where Ms Nichol suggested that Ms Ajax purchased coffee most days from Hard Coffee, I accept that is not necessarily the case. Ms Nichol, serving many customers each day can be forgiven for having some of the days blur into the next in what is a short transaction.

[225] I found Ms AB to be lacking credibility and I consider that she was involved in the misuse of the coffee account. On the basis of her resolution of her litigation between herself and CUA, I don’t expect Ms AB will be exposed to any criminal investigation over the relatively small amount of funds which I consider she deliberately and purposefully misused.

[226] Turning to Ms Ajax, I found her evidence lacking in credibility. In my view, she did not make a truthful witness in many respects. Where Ms Ajax has sought to clear her name in order to resurrect a career in the financial services industry, this decision is no doubt, extremely unhelpful for her.

[227] Simply because she vigorously pursued the application and had a very large amount at stake in the proceedings is not a convincing reason to find that Ms Ajax did not engage in the conduct. Ms Ajax was at pains to produce various records to assist in her demonstration that she did not engage in the conduct. Disappointingly for her, the records do not assist her and relevant to the macaron incident, make her earlier evidence to the Commission incorrect.

s.387(a) – Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[228] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”

[229] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 34

[230] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 35 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”36

[231] Ms Ajax had six years’ service with CUA. Other than the incident resulting in her termination, she held an exemplary employment record.

Ms Ajax’s coffee consumption

[232] I consider that Ms Ajax has purposefully sought to hide from the Commission her true coffee consumption. On the evidence before the Commission I am satisfied, on the balance of probabilities, that Ms Ajax had a coffee most work days. I am satisfied that on a very regular basis, but not every day, Ms Ajax enjoyed a second coffee in the afternoon. I have had regard to the fact that Ms Ajax used her bank card to pay for a coffee most work days during April 2020.

[233] I do not accept Ms Ajax’s evidence that she would typically sip on a cup for all or most of the work day, even when the coffee became cold. There is consistent evidence of her colleagues, which I accept, declaring that she would, on some days, have a coffee in the afternoon. The coffee consumed by her was in a larger cup than a piccolo. Ms Ajax’s own banking records demonstrates that she was regularly charged more than $3.70 for a piccolo.

[234] I accept, without reservation Ms Nichol’s evidence that in April 2020, she separately warned Ms Ajax and Ms AB that their personal coffee orders on the CUA account would become known as the significant downturn in business in the city would make their transactions transparent. Ms Ajax’s and Ms AB’s denial of each of their conversations with Ms Nichol is rejected.

[235] When Ms Nichol was approached by Ms Cardillo in early June 2020 about the use of the account, it was an impromptu conversation. Ms Nichol did not have time to rehearse what she might say to Ms Cardillo. She immediately said to Ms Cardillo that she had warned “them” about their activities.

[236] Ms Ajax and Ms AB were terribly unconvincing relevant to this evidence. I find that Ms Nichol had no ulterior motive relevant to allowing Ms Ajax and Ms AB to put personal coffees on the account. Ms Nichol did not derive any benefit from this activity. In fact, Ms Nichol knew this to be inappropriate, but considered that it wasn’t her responsibility to refuse the requests made by Ms Ajax and Ms AB. All of the three women were seemingly friendly at this point in time; Ms AB and Ms Ajax at times kindly minded the while Ms Nichol went to the bathroom.

[237] It’s clear that Ms Nichol was even prepared to offer gratuities to Ms Ajax; a free coffee in exchange for a macaron gifted to her. Accordingly, I find that Ms Nichol could not be said to have been antagonistic towards Ms Ajax, or somehow setting her up. I consider that she turned a blind eye to Ms Ajax’s inappropriate use of the coffee account, but provided a relevant caution to her because Ms Nichol was one step ahead. She knew if it came under investigation, Ms Ajax and Ms AB would be unable to demonstrate to CUA management for whom the coffees were purchased.

[238] If Ms Ajax’s hypothesis of Ms Nichol falsely putting coffees on the account was correct, it would be expected that May 2020 would have had a large number of beverages charged to the account. Ms Cardillo did not speak with Ms Nichol until early June 2020. I accept Ms Nichol’s evidence that Ms Ajax and Ms AB commenced to heed her warning and stopped making purchases on the account.

[239] Further, Ms Ajax’s evidence given during the hearing where she stated, relevant to Ms AB’s coffee order, “I don’t know her order. I’ve bought her a flat white and skinny. She’s never asked me for an almond milk” is in complete contradiction to evidence before the Commission, and particularly the evidence of Ms AB. Ms Ajax disappointingly told a complete untruth to the Commission on this issue, noting that Ms AB confirmed that they would often buy their coffee together in the morning, and shout each other on occasions. Ms AB had not only recently been drinking coffee with almond milk; she had been doing so for around six months at this point in time.

[240] It is clear that Ms Ryan, as the decision maker relevant to Ms Ajax’s employment, did not have before her all of the evidence that is available before the Commission. The male colleagues were not interviewed until the dismissal had been effected and this application made.

[241] Ms Ajax worked in an industry requiring demonstrated high levels of integrity. The financial services sector cannot afford to have an employee in its midst who might be untruthful over transactions of only around $100; there is the opportunity for further misadventure if it is not promptly addressed.

[242] I am satisfied that Ms Ajax and Ms AB jointly misused the CUA account at Hard Coffee. Where some purchases were for a flat white (with or without almond milk), on the balance of probabilities, I find that the majority of those purchases were for Ms AB, although some of them may have been for Ms Ajax, despite her denial that she does not drink a flat white. Where purchases were for a small cappuccino, on the balance of probabilities, I find that the majority of those purchases were for Ms Ajax. Where some of the purchases were for a flat white, despite Ms Ajax’s denial that she does not drink a flat white, I find on the balance of probabilities that some of those orders were for her.

[243] I accept the contention that even though Ms Ajax preferred to drink a medium cappuccino in the afternoon, the fact that only small cappuccinos could be ordered on the account did not act as a deterrent. It was, after all, a free drink.

[244] It was not put by Ms Ajax that perhaps Ms AB had made all of the purchases on the account for the two of them, and Ms Ajax unknowingly benefited from Ms AB’s misconduct. In any event, I accept Ms Nichol’s evidence that both Ms Ajax and Ms AB were engaged in improperly using the account.

[245] Disturbingly, and seemingly without any conscience, it appears to me that Ms Ajax placed Mr Thompson’s beverage order in his keep cup on the account. I accept his evidence that he assumed, when the offer was made by Ms Ajax, that she would be personally purchasing his beverage. Instead, I find on the balance of probabilities that she put that order on the account and allowed Mr Thompson to later shout her a coffee in return for what he understood to be a returned favour.

[246] This is clear when the CUA discount around this purchase was intermingled with another order. That is, there were two CUA discounts of 70-cents each applied at that time. I have no hesitation in finding that Ms Ajax improperly ordered Mr Thompson’s coffee on the account, and another order she was not permitted to make.

[247] I find that Ms Ajax had a cavalier attitude to the coffee account. She considered it unfair and miserly of CUA to remove the ability to make a daily coffee purchase on the account. This is so because other CUA branches permitted a coffee machine in the branch. I accept Ms Cardillo’s evidence that during the meeting with her on 19 June 2020, Ms Ajax expressed the view that it’s “just coffee”, and following the meeting she said, “It’s coffee, for fucks sake.”

[248] I find that Ms Ajax, in concert with Ms AB considered it appropriate that they should occasionally make use of the account for personal benefit. Having reviewed the invoices, as unsophisticated as they are without a date and time for each transaction, I am satisfied that on occasions the order for Ms Ajax and Ms AB was made together, noting that a CUA discount applied twice.

[249] Ms Ajax knew that such conduct was not appropriate. Where she thought on 13 March 2020 she was “problem solving” by assisting the flustered waiter/barista, she was, in fact, spending her employer’s money without authorisation. I accept the evidence of Mr Reus and Ms Cardillo that Ms Ajax initially denied putting a coffee on the account, and later provided an explanation for doing so. Ms Ajax was aggressive during the initial conversation, correctly denying that she had put her friends’ coffee order on the account. Mr Reus apologised if that was what was conveyed. Ms Cardillo did not take disciplinary action over this issue at the time.

[250] I am satisfied that Ms Ajax’s conduct strikes at the heart of her duties to CUA to be honest in all of her transactions at or involving the workplace, despite her being responsible for only part of the inappropriate transactions, in concert with Ms AB.

[251] I do not consider the reason for the dismissal to be capricious, fanciful, spiteful or prejudiced. I am not satisfied that there was an agenda, as Ms Ajax put to have her employment, and that of Ms AB end on account of the branch wanting more sales-focussed employees. I accept the evidence given that it is appropriate to have a pipeline of potential employees and the discussion was nothing more than that.

[252] I am satisfied that the conduct engaged in by Ms Ajax, when objectively assessed, constitutes a valid reason for the dismissal.”

Ajax v Credit Union Australia Ltd [2021] FWC 3165 delivered 4 June 2021 per Hunt C