Unfair dismissal, small businesses and serious misconduct

The forensic take out from this unfair dismissal decision is the substantial distinction between the burden which must be discharged by a small business employer defending an unfair dismsal application baased upon a dismissal for serious msconfuict under the Small Business Fair Dismissal Code and that of a non small business employer relying upon the general principles under sec 387 of the Fair Work Act.

“Ms Thi Phuong Trinh Le (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009. Ms Le was summarily dismissed by Vivid Nails & Beauty (Respondent) on 4 December 2022 on grounds of serious misconduct.

[2] The Respondent objects to the application on the basis that it is a small business and the dismissal of the Applicant was consistent with the Small Business Fair Dismissal Code (the Code).

[3] The application was heard by video on 13 December 2022. At the hearing, Ms Allison Ballard appeared for the Applicant and Mr Tim Hewitt appeared for the Respondent. A Vietnamese interpreter was also present at the hearing to assist some of the witnesses to give their evidence.

[4] For the reasons set out below, I find that the Applicant’s dismissal was consistent with the Code and accordingly her application must be dismissed.

Background

[5] The Applicant is a university student. She commenced employment with the Respondent as a Nail Technician in January 2019 on a casual basis.

[6] The Respondent’s staff, including the Applicant, are required to handle cash as part of their duties. This involves taking cash payments from customers and placing the cash in a box inside the cupboard under the reception desk. The reception area is monitored by a security camera.

[7] The Respondent claimed that money was missing from the cash box on 3 September 2022. On reviewing the footage captured by the security camera, the Respondent formed the view that the Applicant was the person who took the money.

[8] The following day, on 4 September 2022, the Applicant was asked to stay back after her shift to attend a meeting with Ms Bui (Co-owner) and Ms Vu (Manager). During that meeting, the Applicant was asked to respond to the allegation of theft and she denied having taken the money.

[9] Despite some discrepancy in the evidence as to what were said at the meeting on 4 September 2022, there is no dispute that the Applicant’s employment was terminated with immediate effect at the conclusion of the meeting.

Legislative Framework

[10] Section 396 of the Act requires that the Commission must decide certain matters before considering the merits of an application for unfair dismissal remedy. Relevantly, it provides:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[11] Section 388(2) of the Act provides that a person’s dismissal was consistent with the Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Code in relation to the dismissal.

[12] The Code is set out below:

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

Issue to be determined

[13] There is no dispute and I am satisfied that the Respondent is a small business employer within the meaning of the Act. The matter required to be determined now is whether the Respondent complied with the Code in dismissing the Applicant. If there is compliance with the Code, then there can be no successful claim of unfair dismissal by virtue of s.385(3) of the Act. If the Code was not complied with, then consideration is required to determine whether the dismissal was harsh, unjust or unreasonable in accordance with s.387 of the Act.

The case for the Respondent

[14] Evidence was given by the following persons for the Respondent:

  • Ms Thi (Elena) Tuyet Nhung Bui
  • Ms Thi Thao Vu
  • Ms Thi Kieu Vo
  • Ms Thi Thuy Hai Nguyen

Events on 3 September 2022; discovery of cash missing

[15] The events occurred on 3 September 2022 leading up to the Applicant’s dismissal were described by Ms Bui in the Respondent’s Form F3 (Employer’s Response) as follows:

“On Saturday the 3rd of September, it had been a busy morning and we were aware that several customers had paid cash that did not require change (including a card/cash $10/$100 split payment at 11:15am received by Ms Le) or where change was less than $50. As such, we could reasonably assume that $50 notes were present in the cash box.

When manager Thao [Vu] went to receive her first cash payment of the day at 1:09pm, she exclaimed that she noticed no $50 notes were present in the cash box and the overall amount of cash was unusually low considering the number of cash payments received earlier.

We convened to add up the known cash payments prior to 1:09pm and established that $630 should have been present in the cash box (including the float) yet the amount only added up to $430, meaning $200 had gone missing.

On that same day, we questioned each employee about the cash amounts they received. Of note, Ms Le, who received the first cash payment at 11.15am, insisted that she only received $20 notes for this transaction.

At close of business, we announced to all four rostered employees working that day that we would be reviewing the CCTV footage that night and warned anyone involved in the alleged theft to come forward to either myself or Thao confidentially via phone call. No employee attempted to contact us that evening.

We went through the CCTV footage at home that evening and noticed suspicious behaviour exhibited by only one employee, that of Ms Le.

Footage clearly shows Ms Le accepting two $50 notes from the customer at 11:15am which contradicts her earlier statement of only receiving $20 notes for this transaction.

An office chair is situated behind the reception desk. Ms Le does not sit on the chair nor does it appear to impede her access yet Ms Le appears to deliberately position the chair behind the reception desk in a way that would obstruct view of the cupboard where cash is kept from staff or patrons situated behind the reception area.

When depositing the cash received by the customer, Ms Le appears to spend an inordinate amount of time with both hands in the cupboard and her body positioned in such a way to obstruct view of the cupboard opening from the security camera. As the customer did not require change, we viewed this as suspicious.

Ms Le was also wearing a long-sleeve hoodie beneath her uniform, suggesting a method to conceal cash. However, she was not the only staff member with long sleeves.

Between 11:16am and 1.00pm a few other employees received cash payments, yet their actions did not appear suspicious (cash was stowed swiftly with one hand, cupboard opening was unobstructed and in view of the camera).

At 1pm a different employee (Leah) received a $70 cash payment comprising a $10 note, two $5 notes and a $50 note. $2 in change was given. Although some time was taken to retrieve the $2 coin, both her sleeves were rolled up, she did not appear to cover the cupboard opening and she appeared to place the cash in the box after handing the customer their change.

At 1:02pm Ms Le received a cash payment of a single $50 note with $9 change given. Here we noticed a repeat of the suspicious actions, such as the unnecessary repositioning of the chair, spending an inordinate amount of time with both hands in the cupboard, and blocking view of the open cupboard with one leg straddling the outside of the cupboard door.

At 1:09pm, Thao accepted a cash payment of $120 with $7 change given. It was at this time that she noticed the absence of $50 notes and overall low cash amount. At the time, Thao was aware that a $50 note had been received at 1pm by Leah and exclaimed that $50 had somehow disappeared in a couple of minutes.

Review of the footage clearly shows Ms Le was the last person to accept a $50 note at 1:02pm and no patron or employee visited the reception desk between that time and 1:09pm when Thao noticed the absence of $50 notes and low cash amount. We concluded that between those times, Ms Le was the only person that could have taken this money.

The two $50 notes Ms Le received at 11:15am, the $50 note received by Leah at 1.00pm and the $50 note received by Ms Le at 1.02pm added up to $200, which equalled the missing cash discrepancy.

Together, the contradiction of Ms Le’s statement of the notes she received at 11.15am, the suspicious behaviour when receiving payments, and the missing amount directly after Ms Le received a cash payment, led us to strongly believe Ms Le had engaged in serious misconduct involving theft.

Additionally, upon reviewing CCTV footage during Ms Le’s previous shifts the weekend prior (27-28th of August), we noticed the same suspicious behaviour exhibited by Ms Le when receiving certain payments. In particular, the deliberate repositioning of the chair to obstruct view of the desk cupboard when anticipating a transaction, even though Ms Le does not sit on the chair and it in no way impedes her access. This led us to believe that serious misconduct may have occurred more than once before Saturday 3rd September.

That evening, we discussed next steps to dealing with the matter and approaching Ms Le on the following day.

The next day, Sunday 4th of September, Ms Le was allowed to work her full shift. Another employee alerted us that Ms Le had made a comment to her that morning to the effect of ‘I don’t think anyone stole the money, who would take two minutes to steal, that’s too long’. We thought the emphasis on the amount of time was unusual and again added to our already strong belief Ms Le engaged in serious misconduct.

At close of business, Ms Le was asked to stay behind after other employees had left. At this point we informed Ms Le that we believed she had engaged in serious misconduct and explained our reasoning as outlined above. We asked her to explain the missing amounts in relation to payments which she received and the suspicious behaviour we noticed on security footage. Ms Le denied any wrongdoing but was unable to provide a compelling answer to any of the reasons or questions we put forward. Ms Le then proceeded to frantically ‘search’ the floor near the reception area, suggesting the missing cash must have fallen on the ground, but we viewed this behaviour as disingenuous.

We then informed Ms Le this was her final shift at the salon, and we would no longer be rostering her for the reasons already outlined. Ms Le then demanded to see CCTV footage ‘proving’ any wrongdoing. However, we believe our reasoning was already sufficiently explained to Ms Le and we did not deem it necessary to take up more time presenting footage when we considered the matter already settled. Ms Le was given her final pay and asked to leave the premises. As Ms Le was a casual employee, she was not entitled to any annual or carer’s leave pay-outs.’

[16] Ms Bui gave evidence which is consistent with the events outlined above and was supported by corroborating evidence given by Ms Vu. Ms Vo and Ms Nguyen, who are both nail technicians and present at the salon on 3 September, confirmed in their evidence that after 1:00 pm on 3 September Ms Vu announced to staff that cash had gone missing and employees were later asked about cash payments they received from customers up to that point of time. Ms Vo also gave evidence that she heard the Applicant stating that she had only received $20 bills when questioned by Ms Vu and Ms Bui about a particular transaction at around 11:00 am that morning.

[17] The Respondent tendered into evidence two pieces of video footage taken on 3 September 2022 which captured the Applicant being handed two $50 notes from a customer at 11:15 am and one $50 note from another customer at 1:02 pm.

Submissions

[18] The Respondent submitted that the Applicant was dismissed for serious misconduct based on reasonable grounds. Two matters were highlighted which the Respondent argued formed the primary basis for its belief that the Applicant had engaged in serious misconduct on 3 September 2022 warranting her dismissal the following day:

  1. “The applicant was the last person to accept a fifty-dollar note from a customer at 1:02PM, Saturday 3rd September shortly before the manager discovered that no fifty- dollar notes were in the cash box at 1:09PM. As no other persons entered the point-of-sale area between those times, it was concluded that only the applicant could have taken possession of the fifty-dollar note in question. The applicant was unable to provide an explanation for the missing fifty-dollar note when questioned the following day. Security footage taken at 1:02PM shows the applicant being handed a $50 note from the customer.”
  2. “On the day of Saturday 3rd September, after it was discovered that no fifty-dollar notes were present in the cash box, the applicant was questioned regarding cash notes she had received for a payment at 11:15AM earlier that day. She clearly stated that she only accepted twenty-dollar notes from the customer. However, later review of the security footage revealed that two fifty-dollar notes were handed to the applicant at the time in question. Due to the contradiction of the applicant’s earlier statement, this led to the belief that the applicant had lied to conceal misconduct. The applicant was unable to provide an explanation for her apparent false statements and the additional missing cash bills when questioned the following day. Security footage taken at 11:15AM shows the applicant being handed two fifty-dollar notes from the customer.”

[19] Mr Hewitt made oral submissions on behalf of the Respondent. His submissions included that:

  1. As a small business with fewer than 15 employees, the employer has demonstrably complied with the small business fair dismissal code in taking action to dismiss the Applicant on reasonable grounds for serious misconduct. It was submitted that the employer undertook appropriate action to dismiss the Applicant for a serious breach of trust and to protect the business from further damage.
  2. The substantive contention put forward by the Applicant appeared to be that the employer must provide irrefutable proof that serious misconduct was committed before a dismissal is warranted and such an argument is both misleading and misconstrued: misleading because the Applicant does not address the circumstances presented by the Respondent that established reasonable grounds, which is supported by CCTV footage but not relied solely upon it; and misconstrued because such a burden of proof is understood to be reserved for criminal convictions, not cases of dismissal.
  3. In cases of serious misconduct where there is a loss of loss or damage to the business or its personal personnel, the employer is entitled to take reasonable measures to protect the business and its personnel from further loss or damage.
  4. The Code clearly states that cases of serious misconduct require a belief on reasonable grounds for dismissal, not proof beyond a reasonable doubt. Demanding the latter of a small business would be onerous and irrational. The Code exists precisely for situations such as this to protect small businesses who do not have dedicated human resource expertise, from unreasonable demands and predatory claims.

The case for the Applicant

[20] The Applicant gave evidence on her own behalf and denied that she had committed any theft. She outlined her version of events of what occurred on 3 September 2022 as follows:

“On Saturday 3 September 2022, I attended Vivid Nails to complete my normal 9-5 shift that day. There was nothing unusual about the first part of this shift that I can recall.

When clients pay in cash, the money is not put in a cash register. Instead, it is placed in a small basket on a shelf in a cupboard under the counter. Customers receive a discount of 10% if they pay in cash.

At around 1300-1310 hours that day, Mrs VU began yelling ‘there’s a lot of $50 notes missing.’

Mrs VU then asked all the staff, ‘Do you remember how many $50 notes you took in the morning?’

In addition to me, five other people were working at the salon that day.

They were Ms Bui, Mrs Vu, Mrs Kieu Vo, Mrs Thi Thuy Hai Nguyen, and Ms Le Hang Nguyen (aka Ms Lea Nguyen).

Everybody responded to Mrs Vu’s question.

I said words to the effect of, ‘I took $110 including 5 x lots of $20 notes and 2 x lots of $5, totalling $110.’

I subsequently remembered that I had in fact taken 2 x $50 notes, and 2 x $5 notes from clients. I told Ms Bui and Mrs Vu this when I met them on 11 September 2022.

I recall that I was busy from 11-1 that day. This led to my poor recall of the cash amounts I had collected from clients. I had served 3 or 4 different clients with each nail painting job taking 30 minutes.

While doing my work, I have to remember a lot of things, including all the nail paint colour numbers for my clients.

I also have to focus while doing pedicures and manicures as they involve several delicate steps and I need to be careful so as not to hurt the clients. For a pedicure, I had to cut, shed, soak, soften, clean, buffer, soak again, massage and paint the clients’ nails.

I also had to prepare the nail booths for the next client. This involved doing laundry, getting fresh towels, cleaning equipment, putting things away, and cleaning the chair.

I also juggled several admin jobs which were given to me as my English was better than my colleagues. For example, I had to answer the phone, deal with enquiries, allocate bookings, handle payments, and administer loyalty discount programs.

After Mrs Vu announced that the money was missing, she said ‘whoever took the money, put it back… we will see the footage and investigate it ourselves then post the one who took the money on social media.’

At the end of the shift, no one had put any money back.

Mrs Vu kept saying ‘I will give you another chance, if no one gives us a call tonight, we will post this person on social media.’

Mrs Vu said words to the effect of ‘We know who took the money’ but she wouldn’t say who it was.

After this announcement, the shift finished, and everyone went home.”

[21] The Applicant stated the following in relation to the meeting on 4 September 2022:

  1. Ms Bui and Ms Vu told her that they had checked the they had checked the footage and knew that she had stolen the money.
  2. She stated that she did not steal any money.
  3. Ms Bui and Ms Vu were “not happy with my denials” and said that they would “post me on social media and say I was a thief”.
  4. Her request to view the footage was refused.
  5. She asked if she could check the cabinet to see if any notes had fallen around the basket or other areas of the cabinet. “The basket is only small and sometimes when other staff put money away, it doesn’t go into the basket. I looked but there was nothing there.”
  6. She was told by Ms Bui that “your actions don’t respect us … I don’t want to see you anymore, this is your last day today.”

[22] The Applicant said that after the meeting she was very upset and attended the Civic Police Station to make a report. She was told by a police officer that they could not help her but suggested she contact the Fair Work Commission. The Applicant said that she was so distressed that she made an appointment with the psychologist at the university. She also contacted Ms Bui that evening by telephone to request to be shown the CCTV footage but her request was again refused. She was told words to the effect that “they were very sure it was me … you do not need to say anything, you need to apologise and explain what you did and why you stole the money”.

[23] The Applicant said that on or around 9 or 10 September 2022, Ms Bui contacted her to arrange her to attend the salon on 11 September to review the CCTV footage. It was agreed that she could bring two friends with her as witnesses.

[24] The Applicant attended the salon on 11 September with her two friends. She recounted the events on that day as follows:

“When I arrived, Ms Bui asked us to wait for her to finish counting the business income.

When Ms Bui finished counting the cash income, Ms Bui said loudly to me ‘Today, I earned $800 cash income that was higher than other Sunday.’ She said something like ‘Make sure you hear my statement clearly.’

I was confused and asked Ms Bui ‘what do you mean?’

Ms Bui stated I should know this.

Ms Bui refused to show the footage and said ‘I’m not promising to show you the footage.’

Ms Bui and Mrs Vu kept saying ‘it was you; you do not need to say anything and why I need to show you the footage as you stole the money.’

I kept asking Ms Bui and Mrs Vu to show me the footage, but Ms Bui and Mrs Vu wouldn’t allow it.

My friend Ms Nguyen said to them words to the effect of the ‘incident has already happened, just show us the footage to make everything clear, why don’t you do that?’

In response Ms Bui said ‘we are not happy for you to see the footage.’

At this point, I explained my earlier misstatement saying I had in fact taken 2 x $50 notes and 2 x $5 from clients when I had earlier misremembered and stated I had only taken $20 notes.

Ms Bui agreed that I had a bad memory and continued to ask me why the money was missing.

I had nothing to say, as I didn’t take the money and so could not answer that question. I just wanted to see the footage.

Mrs Vu then told Ms Quynh Tran and Ms Van Nguyen, ‘you need to choose who to be friends with.’

This upset me as I understood it to mean that my friends should not need to be friends with a person like me.”

[25] In cross examination, the Applicant agreed that the CCTV footage showed her receiving two $50 notes at 11:15 am on 3 September 2022. When asked why she repeatedly stated that she had only received $20 notes, the Applicant explained that she had no memory and could not recall at the time because she had to “do a lot of things during the service”.

Submissions

[26] Submissions made on behalf of the Applicant by Ms Ballard contended that the dismissal was not consistent with the Code for the following reasons:

  1. The summary dismissal of the Applicant for alleged theft is not supported by the evidence provided by the Respondent.
  2. The CCTV footage could not ground a reasonable belief on the part of the Respondent that the Applicant had stolen money from it.
  3. The Respondent did not file a police report.

[27] Ms Ballard submitted that for an employer to believe on reasonable grounds that the conduct of the employee was serious enough to justify immediate termination, the employer must establish that they did, in fact hold the belief that the conduct was serious and the conduct justified immediate dismissal.

[28] While accepting that theft is a serious matter which immediate dismissal would be justified if proven, Ms Ballard argued that in this case there is no evidence as to any money actually being stolen, and if there was, there is no evidence as to who actually stole any of the money. It was submitted that the Applicant did not engage in the alleged conduct and did not steal anything from the Respondent.

[29] Ms Ballard argued that the Respondent, by its own admission, did not rely on the CCTV footage to justify the dismissal. The Respondent had no evidence that the Applicant stole any money and had no reasonable basis to substantiate any allegations of theft. There was no record of how much money the business received on the day and how much money was lost. No one saw the Applicant take any money.

[30] It was submitted that the Respondent failed to undertake a thorough investigation and the decision to dismiss the Applicant was pre-determined. The Applicant was not given an opportunity for a support person and she was ambushed at the meeting.

[31] Ms Ballard further submitted that in failing to report the alleged offence to the police so that a proper investigation could be conducted, the Respondent had no reasonable belief that the Applicant had stolen the money.

Consideration

[32] It is uncontroversial that an allegation of theft is a matter of serious nature and that the Applicant was summarily dismissed for serious misconduct. In respect of a summary dismissal, the Code requires that the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.

[33] The Full Bench in John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo1 considered the approach taken in previous cases in determining whether the employer believed on reasonable grounds that the employee’s conduct justified summary dismissal:

“[27] Deputy President Bartel in Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe said:

“[60] At the outset it is appropriate to note that unlike a consideration of the dismissal of an employee of a business that is not a small business employer, the function of FWA is not to determine on the evidence whether there was a valid reason for dismissal. That is, the exercise in the present matter does not involve a finding on the evidence as to whether the applicant did or did not steal the money. The application of the Small Business Fair Dismissal Code involves a determination as to whether there were reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify immediate dismissal. As such, the determination is to be based on the knowledge available to the employer at the time of the dismissal, and necessarily involves an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision to dismiss was based.”

[28] Senior Deputy President O’Callaghan in Harley v Rosecrest Asset Pty Ltd T/A Can Do International said:

“[8] For an employer to believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer to establish that the employer did in fact hold the belief that as a matter of fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal. This is to be contrasted to the provisions of s.387(a) where FWA, in determining whether there was a valid reason for the dismissal, must find whether the conduct in fact occurred.

[9] Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquires or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.”

[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

[34] Having carefully considered all the evidence and submissions before me, I find that the dismissal of the Applicant was consistent with the Code.

[35] Based on the evidence of Ms Bui which I accept, I am satisfied and find that she did in fact hold the belief that as a matter of fact that (i) the Applicant engaged in the conduct in question; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal.

[36] Further, I am satisfied that there were reasonable grounds for Ms Bui holding this belief. Ms Bui explained the basis for her belief which is set out in paragraph 15 above and which I accept. I note the Respondent’s belief was in part grounded in the Applicant failing to disclose (whether because of her “poor recall” or otherwise) that she had taken $50 notes from customers. She put her belief to the Applicant and gave her the opportunity to respond.

[37] The Respondent is correct when it submits that it is not necessary for it to provide irrefutable proof that serious misconduct was committed.

[38] The other criticisms made by the Applicant of the Respondent, such as its failure to file a police report so a proper investigation could be conducted, do not detract from the reasonable basis for Ms Bui’s belief as to the Applicant’s conduct. To the extent it is necessary, I am satisfied the investigation undertaken by the Respondent was reasonable in the circumstances. Further, the failure of the Respondent to show the Applicant the CCTV footage does not change the matters to which the Commission must be satisfied in determining whether the dismissal was consistent with the Code.

[39] It is emphasised that in finding the Applicant’s dismissal is consistent with the Code, no finding has been made that the Applicant took the missing money. Again, the Commission is only required to determine whether the belief held by the Respondent that the Applicant engaged in misconduct was reasonable in the circumstances.

[40] Accordingly, the application is dismissed.”

Le v Vivid Nails & Beauty (2022) FWC 3322 delivered 21 December 2022 per Dean DP