TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed in May 2014 as a Receptionist/Administrator – summarily dismissed for serious misconduct on 27 November 2015 – respondent submitted reasons for dismissal were due to applicant engaging in bullying conduct against two other employees; and engaging in fraud and theft by incorrectly recording her working hours and claiming payment for those hours – applicant denied allegations and stated that all of the records had not been put before her prior to dismissal – matter heard together with application made by applicant’s mother, who was also an employee of respondent, and was dismissed for substantially similar reasons at the same time [[2017] FWC 2573] – respondent referred the basis for the dismissal, in terms of the allegations of fraud and theft, to the Queensland Police Service (QPS) – QPS conducted an investigation into allegations, however it was confirmed several months later that no charges would be laid against either applicant or her mother – whether valid reason for dismissal – Commission found allegations of bullying unsubstantiated – held respondent failed to demonstrate that it conducted sufficient investigations into bullying allegations prior to dismissal – allegations of bullying relied on by respondent did not provide a valid reason for dismissal – elements and standard of proof required to substantiate an allegation of fraud and theft at criminal law (beyond reasonable doubt), differ and are higher than test for misconduct before Commission (on the balance of probabilities) – McKerrow considered – held nature of respondent’s evidence could be described as ‘inexact proofs’ and ‘indirect references’ – whilst respondent may have satisfied evidentiary requirement that misconduct occurred, evidence not sufficiently probative to support a finding that conduct amounted to serious misconduct – respondent ultimately carried responsibility with respect to ensuring accuracy of timesheets and wages paid to employees – to substantiate an allegation of fraud and theft the conduct must be proved to be dishonest – found respondent had not satisfied that, on the balance of probabilities, applicant engaged in misconduct, committed fraud and theft, or was dishonest – inaccuracies in the recording of time and wages provided a valid reason for dismissal – while conduct could not be condoned, it had been undermined by significant procedural deficiencies on behalf of respondent – found dismissal harsh, unjust and unreasonable – not appropriate to order reinstatement – applicant had been employed on a casual basis, and secured alternative employment within a short period after dismissal – held not appropriate in the circumstances to order compensation. Webb v The Trustee for SWC Unit Trust t/a Salisbury Day Surgery
