Casual Cleaner Unfairly Dismissed After False Theft Allegation

Case: Thomas v Goona Warra Vineyard [2014] FWC 513
Decision date: 21 January 2014
Commission Member: Commissioner Johns
Outcome: Unfair dismissal found; compensation of $1,404 ordered

[1]“[I]f ever there was a truly “forgotten people” in our time it must be the working poor
…. the cleaners and carers and hospitality workers…”1 And if ever there was an example of
how indecently, the working poor are sometimes treated it is how John Barnier of Goona
Warra Vineyard Pty Ltd (Respondent) treated Shirley Thomas (Applicant) on 16 May 2013.

Overview

The Fair Work Commission found that a casual cleaner had been unfairly dismissed after a vineyard director accused her of stealing money from his home and terminated her employment during an angry telephone call.

The Commission rejected the employer’s jurisdictional objection, finding that the employee’s casual employment had been regular and systematic for more than 12 months and that she had a reasonable expectation of continuing employment.

The decision is significant for its treatment of casual service in determining the minimum employment period, and for its finding that a small business employer’s lack of formal HR procedures does not excuse basic standards of civility.

Background

The employee commenced work as a casual cleaner at Goona Warra Vineyard on 30 March 2012. Initially, she cleaned the vineyard’s buildings and later also cleaned the directors’ home.

On 16 May 2013, the employer’s director, John Barnier, telephoned the employee and accused her of stealing money from the home. He told her that her services were no longer required and threatened to contact police.

The money was subsequently found. Another director, Elizabeth Barnier, telephoned the employee to apologise and suggested that she might return to work. The Commission preferred the employee’s evidence that this was not a definite offer of re-employment, but merely a suggestion that they might discuss it later.

The employee was deeply upset and did not believe she could return to work for the employer.

Jurisdiction: Did the casual employee serve the minimum employment period?

Goona Warra Vineyard argued that it was a small business employer and that the employee had not completed the required 12-month minimum employment period because she was a casual employee.

The Commission first found that the vineyard employed fewer than 15 employees at the time of dismissal and was therefore a small business employer.

Under s 384(2)(a) of the Fair Work Act 2009, casual service counts towards the minimum employment period where:

the employment was on a regular and systematic basis; and
the employee had a reasonable expectation of continuing employment on that basis.

Regular and systematic employment

The employee worked in 58 of the 59 weeks between commencement and dismissal. The only week she did not work was during the vineyard’s Christmas closure.

Although the number of shifts and hours varied, the employee was rostered each month and generally worked at least four hours per week. In some weeks she worked up to 20 hours.

The Commission found that the employment was not occasional. The fact that the shifts fluctuated did not prevent the employment from being regular and systematic.

Reasonable expectation of continuing employment

The Commission found that the employee reasonably expected her employment to continue in the same general pattern.

The employer’s evidence was that, during the quieter winter period, the employee would likely have continued working short shifts of approximately three hours per week.

The Commission was satisfied that the employee had completed the minimum employment period and was protected from unfair dismissal.

Was the employee dismissed?

The employer argued that the employee had effectively resigned by declining an offer to return to work.

The Commission rejected that argument. The director had expressly told the employee that her services were no longer required. Further, the Commission found there had been no unequivocal or definite offer of re-employment.

The termination was therefore at the employer’s initiative.

Was the dismissal unfair?

No valid reason

The dismissal was based on an allegation that the employee had stolen money from the directors’ home.

The Commission found the allegation was false and there was no valid reason for dismissal.

No opportunity to respond

The employee was accused during an angry telephone call and attempted to explain, but the director talked over her. There was no proper investigation and no meaningful opportunity to respond.

The Commission found that the employee had not been given an opportunity to answer the allegation.

Small Business Fair Dismissal Code

The employer conceded that it had no strong argument that it complied with the Small Business Fair Dismissal Code.

The employee had not committed theft or other serious misconduct. The employer had made a false allegation and had not followed the Code’s requirements.

The Commission observed that although a small business may be excused from some formal procedural steps, it is not excused from basic civility.

The dismissal was found to be harsh, unjust and unreasonable.

Remedy

Reinstatement was considered inappropriate because the employee had lost trust in the employer. The Commission found that the director’s conduct, including his failure to personally apologise, had broken the employee’s trust.

The Commission ordered compensation.

In calculating compensation, it found that the employee would likely have remained employed for a further 12 months, working an average of three hours per week at $18 per hour. However, the compensation was limited by the statutory cap, based on the remuneration she had received or was entitled to receive during the preceding 26 weeks.

The final order was:

$1,404 in compensation, payable in four weekly instalments of $351.

The Commission did not include any amount for shock, distress or humiliation, as these are excluded from compensation under the Act.

Significance

This decision provides useful guidance on casual employees’ eligibility to make unfair dismissal applications.

Casual employment does not automatically exclude service from the minimum employment period. Regular and systematic employment can exist despite varying hours, irregular shifts or seasonal fluctuations, particularly where the employee is consistently offered and accepts work.

The decision also demonstrates that a serious allegation such as theft should not be acted upon without reasonable grounds and an opportunity for the employee to respond. A small business employer’s size may affect the procedures expected, but does not excuse an unjustified and uncivil dismissal.

Representatives

Applicant: N Dircks, paid agent
Respondent: R Millar, counsel