Case study 2: Jennifer Walker v Salvation Army (NSW) (2017) FWC 32

unfair dismissal

Introduction

The following case discusses the outcome of when a company prematurely dismisses an employee without establishing the proper grounds for termination or dismissal. This is why it is necessary and legally enforced for companies to conduct investigations in circumstances of serious misconduct or other serious allegations. Otherwise, employers are liable for unfair dismissal claims regardless of if the allegations are substantiated.

Facts

Ms Jennifer Walker worked at the Salvation Army (Lidcombe location) for 11 years with a perfect work record. Never had she received a warning or sanction. In July 2016, Ms Walker was accused of stealing $200 from a customer after pocketing the money but allegedly never placing through the transaction. This was noticed by the Area Manager when the customer came back into the store to collect her purchased item with a handwritten note. Rather than their usual printed receipts. On 23 July 2016, Mr Steve Gillespie (Western Sydney Area Manager) had acquired the CCTV footage to review where he allegedly saw Ms Walker holding and pocketing the $200. On 29 July 2016, Mr Gillespie confronted Ms Walker and notified her of the investigation. Ms Walker vehemently refused the allegation. Mr Gillespie had not revealed to Ms Walker that he had already received and viewed the CCTV footage. Another meeting was scheduled for 4 August 2016, with Mr Gillespie and an HR representative to discuss the investigation. Where Ms Walker would be given an opportunity to respond and was allowed a support person. Ms Walker continued to deny all allegations.  After considering all the evidence Ms Gillespie had decided to terminate Ms Walker’s employment later the same day. Accusing her of serious misconduct due to stealing $200.

Ms Walker had filed an unfair dismissal claim (F2 form) on 19 August 2016.  

Cross Examination

The Fair Work Commission (FWC) conducted cross examinations and reviewed the footage in order to determine whether Ms Walker had stolen the $200. When Ms Walker first reviewed the footage she thought she was holding a notepad shaped as a $50 note while showing the customer around the store. Upon review Ms Walker was holding a legitimate $50 note. However, only one $50 note. Not $200 dollars’ worth.

During Ms Gillespie’s cross examination he admitted that he never considered that Ms Walker was only holding a single $50 note. Instinctively assuming that she was holding all $200 in her hand.  

Outcome

Senior Deputy President Hamberger had reviewed all the evidence and had found that all the CCTV footage proves that Ms Walker was walking around the store holding a $50 note. Furthermore, there was no proof that the customer had handed Ms Walker any money, or that the money originally belonged to any customer. Ms Walker could have easily been holding her own cash in her hand. Therefore, there was no valid reason for Ms Walker’s dismissal.

Senior Deputy President Hamberger had criticized the Salvation Army’s investigation process. Not only by relying on ‘indirect inferences’, but also not providing Ms Walker with a better opportunity to review the CCTV footage and provide an accompanying explanation to what was seen on the footage. Furthermore, there needs to be reliable and direct evidence in order to build the basis of a termination regarding serious misconduct. The Salvation Army were also criticized for being a large business that should have followed a rigorous investigation process.

Remedy

Due to the length of her tenure, clean work history, and loss of earnings during the period of time between her termination and the hearing, Ms Walker was awarded the maximum amount of financial compensation of 26 weeks’ worth of wages. This resulted in a payment of $22,404.50, with any applicable tax.

In order to truly remedy Ms Walker for her lost finances after her termination Deputy President Hamberger had initially wanted to award Ms Walker a sum of $34,809. However, this was above the maximum financial threshold that Ms Walker was allowed to receive.

Discussion

There is a precautionary lesson to employers when faced in situations where they believe they already know the truth and therefore do not have to comply with workplace investigation procedures. Workplace investigations are necessary for procedural fairness and are set up to ensure there are fair fact finding procedures. Ensuring that vindictive employers cannot assume the worst or base their dismissal policy on their own personal feelings and attitude towards the employee. Effectively ensuring that employees are considered innocent until proven otherwise. Protecting the more vulnerable party in an employer-employee relationship.

Furthermore, this case demonstrates the relevance of considering contextual factors. Such as the length of tenure, which can drastically affect the reasonable outcome of a workplace investigation. Where one mistake may be considered unreasonable as it is an employee’s first day, compared to an employee who has dedicated their entire career to being ruined over a mediocre mistake.

Lastly, the case highlights the important requirement of passing along all relevant information to the accused person in order to allow them to make an informed response. Restricting information does not prove their guilt but creates miscommunication and further mistrust. If Ms Walker were provided a copy of the CCTV footage, then it is far more likely that the false pretenses of Mr Gillespie would have been corrected and the situation rectified. Reducing the need to further injure the employer-employee relationship by going to the FWC. There is no reason why employees should not be handed all information regarding allegations that they are being accused of.