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Unfair Dismissal: Narong Khammaneechan Pty Ltk ATF Nanakhon trading trust T/T Banana Tree Cafe [2010]FWA 7891

The case concerned a Thai restaurant in South Australia. The owner of the restaurant discovered a short falling in takings after examining cash register records for April of this year. The owner discovered that one particular employee, a cook who the cafe had sponsored to come to Australia, had been working on each occasion that there had been a shortfall. The owner confronted the cook and told him that he believed that the employee had been packeting cash received from customers whilst recording it as an eftpos transaction. The employee denied this allegation but told his boss that he would pay the money back and quit. The owner then told him he would contact the police and suspended him for 7 days while he investigated the matter.  The owner ultimately did not contact the police but, on the basis of his investigations, found that he had stolen the money and dismissed the employee for serious misconduct.

The employee brought an unfair dismissal claim before FWA. As well as claiming that it was not fair to assume that he was guilty as he was the most regular employee and more often than not rostered on, he also claimed that he had been denied procedural fairness because the meeting had been held without notice, in his second language (English) and he hadn’t had a chance to have a support person.

The employer said that on the basis of his investigation it was reasonable to form the view that the employee had stolen the money and that he had dismissed the cook in accordance with the Small Business code

The Small Business Code

Deputy President Karen Bartel found that the restaurant was a small business employer and that the dismissal would be fair if it complied with the Small Business Code.

She went on to make some important points about compliance with the Code:

  • It was not the FWA’s function to determine whether the applicant did or did not steal the money
  • Whether there were reasonable grounds for the employer to form the view that the employee was guilty of serious misconduct involved an assessment of the reasonableness of the steps taken by the employer to gather relevant information on which the decision was based
  • While the employer had not made a formal police complaint, he had brought it to their attention..in any event she said “the test required under the Small Business Code is not that a formal complaint is made”.
  • The Code did not impose a positive obligation on employers to provide an opportunity for the employee to have a support person.. but rather their obligation is “not to frustrate that right if the employee chooses to exercise it”.

 

Deputy President Bartel found that in all the circumstances the employer had reasonable grounds to believe that the employee had engaged in serious and wilful misconduct and the employee’s unfair dismissal application was dismissed.

Narong Khammaneechan Pty Ltk ATF Nanakhon trading trust T/T Banana Tree Cafe [2010]FWA 7891