Industrial Relations Commission of New South Wales CITATION : Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch v Westport Bowling Club Ltd [2001] NSWIRComm 205 PARTIES : Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch Westport Bowling Club Ltd FILE NUMBER: IRC 3894 of 2001 CORAM: Harrison DP CATCHWORDS : Application for relief from unfair dismissal - allegation of theft - cash handling procedures - allegations not substantiated - reinstatement ordered LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 08/20/2001 DATE OF JUDGMENT: 09/05/2001 APPLICANT Mr C Acev Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch LEGAL REPRESENTATIVES: RESPONDENT Ms M Knight Mr R Tait Clubs NSW JUDGMENT: 12 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 5 September 2001 Matter No IRC 3894 of 2001 AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION, NEW SOUTH WALES BRANCH (ON BEHALF OF MAREE PLONER) AND WESPORT BOWLING CLUB LIMITED Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2001] NSWIRComm 205 1 The application in this matter was filed on 12 June 2001 by Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch ('the Union') on behalf of its member, Ms Maree Ploner ('the applicant'). 2 The matter was listed for proceedings for the purpose of conciliation and directions in Port Macquarie on 29 June 2001. Prior to these proceedings Clubs NSW, acting on behalf of Westport Bowling Club Limited ('the Club'), the respondent employer, sought vacation of proceedings due to strike action by members of the Union employed by the Club demanding reinstatement of the applicant. 3 Directions in Chambers were issued in the following terms: "I am in receipt of an application by Clubs NSW, acting on behalf of the respondent in this matter, to vacate proceedings scheduled for 29 June 2001 in Port Macquarie. The reason advanced in the attached application is ongoing strike action by members of the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch ('the union'). I decline to vacate the proceedings as scheduled. I form the view that in line with advice that strike action is under way, I am compelled to move on the Commission's own volition to direct an immediate resumption of work in accordance with the award and the disputes procedure contained therein. Accordingly I direct pursuant to section 134(b) of the Industrial Relations Act 1996 that all employees of the Westport Bowling Club engaged in industrial action cease and desist from that action forthwith and resume work in accordance with ordinary rostered shifts. The parties are required to advise the Commission by no later than 4.00 pm today, 27 June 2001, of the status of the industrial action." 4 The Commission was subsequently informed that the Directions had been complied with and the matter proceeded as scheduled on 29 June 2001. 5 It was established that the matter could not be resolved by agreement between the parties and directions issued to bring the matter to arbitration on 20 August 2001 in Port Macquarie. 6 On that occasion Mr C Acev of the Union appeared on behalf of the applicant. Ms M Knight and Mr R Tait of Clubs NSW appeared on behalf of the Club. 7 Mr Acev brought evidence from Ms J Serich, employed by the Club as a Casino and Bar Attendant; Ms Ploner; and Mr P Burles, an official of the Union based in Northern New South Wales. 8 Ms Knight brought evidence from Mr R Livingstone, Secretary Manager of the Club; and Mr D McIlwain, Food and Beverage Manager of the Club. Ms Knight also produced a report (ex 13) by Mr Philip Bennett, a consultant to the Club industry, provided to Mr Livingstone in respect to those matters subject to these proceedings. 9 The report by Mr Bennett, said to be an expert witness, was objected to by Mr Acev. The objection was upheld and Mr Bennett not required for examination. The report was admitted so far as it provided information to Mr Livingstone upon which he relies in accordance with para 50 of his affidavit (ex 7) to confirm his original appraisal of the situation. THE EVIDENCE 10 The evidence of Mr Livingstone, supported by that of Mr McIlwaine, is that a discrepancy in revenue from poker machine activity came to management's attention, resulting in a detailed cash flow analysis being undertaken. An example of the cash flow analysis for the period 26 April to 30 April 2001 was tendered (ex 8). 11 The evidence of Mr Livingstone is that this analysis demonstrated to management that the cash was disappearing during the refill process. 12 There was no issue between the parties as to the refill process in place at the time of the cash discrepancies, which is appropriately described as the former refill process. 13 The former refill process apparently a long established practice at the Club, involved the Casino cashier preparing a plastic cup containing 200 one dollar coins which was then placed on the counter inside the cashier's cage until required. The usual practice was that a member of the casino staff allocated to floor duties would be made aware that a machine required refill, usually by the person playing the machine. The attendant would then obtain a refill cup from the cashier's cage, proceed to the machine, refill it and obtain the player's name and signature on a poker machine payment voucher ('the voucher'), examples of which were tendered (ex 5). The attendant would then return the empty cup to the cashier who would sign the voucher as witness. The attendant refilling the machine would sign the voucher in the area designated for "supervisor's signature"; this signature apparently confirming that the player observed the refill of the machine, the attendant initialled to indicate the identity of the employee undertaking that activity, and the cashier witnessed these activities. 14 The details of the voucher were subsequently entered into the Club computer system, whereupon the cashier's signature was added to the voucher. 15 The evidence of Mr Livingstone is that the method of theft suspected, described as "skimming", was for the cashier to short fill the refill cup, taking an amount, said in this matter to be a series of $10 and $20 amounts. Mr Livingstone put that this activity was open to the cashier as there was time unobserved for them to skim off the top of the refill cup and that at the time there was no check, either by count or weight, of the amount in the refill cup handed to the poker machine attendant. 16 Mr Livingstone's evidence is that an analysis was then undertaken of vouchers against cash flow analysis figures in which discrepancies were found, leading to a conclusion that the applicant was over represented in the number of suspect transactions, leading to a conclusion of her culpability. 17 The evidence of Mr Livingstone is that when it became known in the Club that cash flow analysis was being undertaken, the skimming ceased. Mr Livingstone further deposed that the cashier procedure as been altered to provide a process of verification between the cashier and attendant that the refill cup in fact holds 200 one dollar coins at the time it is issued to the attendant. 18 The uncontroverted evidence is that the applicant was called to a meeting with Mr Livingstone on Monday, 4 June 2001, informed of the investigation into poker machine discrepancies and of the allegation and given an opportunity to respond, which she declined. The applicant was then suspended from duties pending a meeting on 6 June 2001 to consider the continuation of her employment. 19 In the meeting of 6 June 2001 the applicant was represented by Mr Burles. The evidence of the parties differed in respect to the duration of this meeting though there is consensus that it took between 10 and 20 minutes. 20 Mr Livingstone restated the allegation and sought explanation from the applicant. It is the evidence of both Mr Burles and Ms Ploner that neither of them were afforded the opportunity to examine the detail of the investigation undertaken by the Club. Ms Ploner vehemently denied any wrongdoing on her part and was not able to offer an explanation as she had no knowledge of the event agitating management's concern. 21 Ms Ploner was further asked for an explanation as to why she appeared to be involved in a large number of suspect transactions. It is her evidence that she was not given any detail of the process of investigation or the basis upon which management asserted her high level of involvement and accordingly was not in any position to understand the allegation against her and subsequently in no position to proffer an explanation. 22 Management construed the applicant's failure to offer an explanation as further indication of culpability. Ms Ploner's employment was then terminated, the notice of termination provided to her in writing (ex 3). 23 The evidence of Mr Burles and Ms Ploner is that the notice of termination had been prepared prior to the commencement of the meeting of 6 June 2001 as they had noticed the envelope, subsequently handed to them, containing the notice of termination on the desk at the commencement of the meeting. 24 The evidence of Mr Livingstone, supported by Mr Bennett's report (ex 13) was that it was highly improbable that the cash disappeared from anywhere but the refill cup and that the cash flow analysis and procedures in place indicated that the cash box attendant was the most probable perpetrator. 25 Mr Acev, supported by the evidence of Ms Ploner and Ms Serich, contended that under the former procedures the refill cup could have been accessed by persons unknown subsequent to prefill by the cash box attendant and prior to hand over to the poker machine attendant. 26 Mr Acev further postulated that there was potential for the refill cup to be accessed subsequent to hand over to the attendant, prior to refill of the machine. Mr Acev also put that the poker machine cash box, hopper, or note receptacle could have been accessed by persons unknown and whilst physical access to the hopper, as demonstrated by witnesses with a hopper extracted from a poker machine (ex 1), may be considered difficult, it is not impossible. 27 Mr Livingstone, supported by cash flow analysis and exhibit 3, maintained the proposition that monies were disappearing from either the poker machine hopper or the refill cup and that access to the hopper was limited and physically difficult, thus leaving the refill cup procedure as the most likely means. 28 It is appropriate and useful to consider the analysis provided by Mr Bennett, in particular at page 6: As part of my independent investigation of this matter, I attended the Club on 26th, 27th, and 30th July 2001 and inspected the Club's Cash Flow Analysis Reports for all machines and the Club's payout and refill vouchers for the abovementioned periods. I documented details of all refill transactions (969 in number) recorded on those vouchers for the purposes of my independent analysis. The complete details of all refill vouchers are annexed at "D" herewith. I conducted an independent analysis of the Club's Cash Flow Analysis Reports for those periods and noted a significant number of machines that showed discrepancies in the analysis, which were adverse to the Club. A statistical analysis of the involvement of all relevant gaming machine staff involved in such refills is annexed at "E". The results of my analysis are set out and explained in the following paragraphs. 29 At page 7 for the period 1 April to 4 April 2001: As shown in red in Table A, I note that Maree Ploner acting as Witness and Cashier endorsed the only refill transaction for machine no. 43 which showed a cash flow analysis deficiency of $22. As shown in blue in Table A, I also note that Maree Ploner acting as Witness and Cashier endorsed one of the two (2) refill transactions for machine no. 97, which machine showed a cash flow analysis deficiency of $20. I note that Maree Ploner's signatures, mainly as Witness and Cashier, and to a lesser extent as a Supervisor, appear on about 7% of all refill vouchers documented during this period. However, her signatures as Witness and Cashier appear on 50% of those vouchers in Table A. Those statistics clearly indicate that Maree Ploner was involved in a much larger proportion of the refill transactions in question than were any of her colleagues and, statistically, there is no legitimate reason why this should have been the case. in respect of machine no. 71 shown in grey in Table A, according to the Club's records, Maree Ploner was not rostered on for duty on 4th April 2001. 30 At page 8 in respect to 5 April to 11 April 2001: As shown in red in Table B, I note that Maree Ploner acting as both Witness and Cashier endorsed the only refill transaction for each of machines nos. 28, 51, 59 and 68 which showed cash flow analysis deficiencies of $20, $10, $21 and $22, respectively. As shown in blue in Table B I also note that Maree Ploner acting as Witness, Cashier and/or Supervisor endorsed at least one of a number of refill transactions for each of machines nos. 21, 48, 70, 74, 94, 98, 106 and 109 which showed cash flow analysis deficiencies of $39. $42, $20, $10. $21. $19. $13 and $24, respectively. I note that Maree Ploner's signatures mainly as Witness and Cashier, and to a lesser extent as a Supervisor, appear on about 22% of all refill vouchers documented during this period. However, her signatures as Witness and Cashier appear on about 40% of those vouchers in Table B. Those statistics clearly indicate that Maree Ploner was involved in a much larger proportion of the refill transactions in question than were any of her colleagues and; statistically, there is no legitimate reason why this should have been the case. In respect of machine no. 6 shown in grey in Table B, I am advised by the Club that Maree Ploner was rostered on for duty on 7th April 2001 and went on a break at 6.32 pm. 31 At page 14 in respect to the period 3 May to 9 May 2001: As show in red in Table F, I note that Maree Ploner acting as Witness and Cashier, and on one occasion, as supervisor, endorsed the only refill transaction for each of machines nos. 35,52, 78, 95, 97 and 100 which showed cash flow analysis deficiencies of $21, $20, $21, $20, $20 and $20, respectively. As shown in blue in Table F, I also note that Maree Ploner acting as Witness Cashier and/or Supervisor endorsed at least one of a number of refill transactions for each of machines nos. 11, 23, 48, 51, 69, 74, 77, 111, 134, and 138 which showed cash flow analysis deficiencies of $17, $22, $25, $20, $20, $22, $20, $20, $20, and $20 respectively. I note that Maree Ploner's signatures mainly as Witness and Cashier, and to a lesser extent as a Supervisor, appear on about 17% of all refill vouchers documented during this period. However, her signatures as Witness and Cashier appear on about 35% of those vouchers in Table F. 32 At points 25 and 27 (pp18 and 19) Mr Bennett aggregates the statistical analysis undertaken in the following terms: In respect of the 969 refill transactions examined, I note that Maree Ploner's signatures mainly as Witness and Cashier, and to a lesser extent as a Supervisor, appear on about 160 or 17% of all refill vouchers documented However, her signatures as Witness and Cashier appear on about 117 or 45% of the 258 vouchers identified as having relevance to cash flow analysis discrepancies on the gaming machines listed. Those statistics clearly indicate that Maree Ploner was involved in a much larger proportion of the refill transactions in question than were any of her colleagues and, statistically, there is no legitimate reason why this should have been the case . On the basis of all the factual material presented to me and independently verified by me, I believe that the most likely cause of the cash flow analysis discrepancies identified is linked to refill transactions. I note that most of the reported discrepancies appear to be somewhat "rounded" in single or multiple amounts of $10 after allowing for a dollar or two which is noted to be a usual variance in the case of machines with results that are not quite perfect. This fact indicates quite strongly that there was a pattern of behaviour that involved a form of "skimming" amounts of $10, $20 or more amounts of cash from the standard refill amount of $200. I believe that this practice would most easily be effected by a Cashier who would have had the time and the means by which to skim the funds from the refill sum without being readily detected. This could be achieved by the Cashier only filling the refill container with $180 or $190 without the knowledge of the Supervisor collecting the coins. A cashier could also easily remember or record the cumulative total of the amounts skimmed over a period of time and remove, the equivalent amount in notes from the cashier's float during or at the completion of his/her shift. SUBMISSIONS 33 Ms Knight relied upon the evidence to establish that Ms Ploner was guilty of misappropriation of Club funds and urged that on the balance of probabilities, the appropriate test in civil proceedings, that I should so conclude and dismiss the application for relief. 34 Mr Acev also relied upon the evidence to support a submission that there is no basis to find Ms Ploner culpable and that reinstatement without loss of wages or continuity of service is the appropriate remedy. 35 Mr Acev argued that Ms Ploner has been employed by the Club for some seven years and has an unblemished record. 36 Mr Acev submitted that the only arguments against the practicality of reinstatement were lingering perceptions that the applicant had acted improperly. Mr Acev submitted that the evidence does not support such allegations and a positive finding to that effect by this Commission would remove any bar to Ms Ploner's reinstatement. 37 Ms Knight referred me to the following authorities: Devey v Enacon Parking Pty Ltd (IRC95/1866, Connor C, 13 December 1995, unreported); Loty & Holloway v Australian Workers' Union (1971) AR (NSW) 95; British Home Stores Ltd v Burchelle (1978) IRLR 379; Lane v Arrowcrest Group (t/as Roh Alloy Wheels) (1990) 27 FCR 427; Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273; Shop Distributive and Allied Employees' Association (NSW Branch) v Jewel Food Stores (1987) 22 IR 1; Bigg v NSW Police Service (1988) 80 IR 434; Briginshaw v Briginshaw (1938) 60 CLR 336; Liu v Star City Pty Ltd (AIRC PR903625, Larkin C, 24 April 2001, unreported); and Electricity Commission of New South Wales (t/as Pacific Power) v Nieass & ors (1995) 81 IR 46. 38 Mr Acev referred me to the following authorites: Rich River Golf Club Ltd v Power (Matter No IRC 640 of 1995, FIRC Fisher P, Hill J, Redman CC, 12 May 1995, unreported); Briginshaw v Briginshaw (1938) 60 CLR 336; and Pastrycooks Employees, Biscuit Makers Employees & Flour and Suguar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70. CONSIDERATION 39 I find that there is no direct evidence to substantiate the allegations against Ms Ploner. The Club's approach that the cash discrepancy was probably or most likely "skimming", and that it was probably or most likely Ms Ploner is a "double probability" which is not supported on the evidence. 40 An ex tempore decision was delivered at the conclusion of proceedings in the following terms: HIS HONOUR: Thank you. The Commission is required to consider various standards of proof in determining matters such as this. The parties have addressed me in respect to the application of the test of balance of probabilities. There is a further test as the gravity of the situation arises and that is one of comfortable satisfaction. 1 could not find that the allegations against Ms Ploner are made out on either of those tests. Indeed, if I address the test of comfortable satisfaction, there is a significant amount of discomfort arises from a contemplation that Ms Ploner was, indeed, guilty of skimming; the allegation made against her. I agree with the submissions of Mr Acev that the club, faced with a difficult situation of the disappearance of money, concluded that the cause was probably skimming, then embarked upon an investigation to justify that and link someone to it. The evidence does not, on either of the tests, link Mrs Ploner to the skimming. I have admitted the affidavit of Mr Bennet so far as the statistical analysis is concerned but not as to conclusions. If I go to paragraph 25 of Mr Bennet's affidavit, he there proposes that he examined 969 refill variances and found that Mrs Ploner was over-represented in the discrepancies. The information is that Mrs Ploner was signatory to 17 per cent of all 969 refill vouchers examined and 117 of the 258 vouchers having relevance to the discrepancies. That figure equates to 45 per cent of the 258 vouchers having relevance to discrepancies. That does not, on any analysis, link Mrs Ploner to misconduct. It might suggest that she was simply doing her job as a cashier. Indeed, if it proves anything, it proves that some other person or others were linked to 45 per cent of the vouchers having discrepancy. I find on the evidence presented to me in a forthright and proper way by Mr Livingston that Mrs Ploner was denied procedural fairness and denied procedural fairness in a substantive way. It is regrettable that the union representation on her behalf did not seek to undertake the investigation of the material then in the hands of the employer and now presented by example in exhibit 8 in these proceedings. On the balance and consideration of all the evidence, I find the conclusions against Mrs Ploner harsh, unreasonable and unjust and I find the termination of her employment harsh, unreasonable and unjust. Considering the prospects of remedy, I find no reason why reinstatement should not be ordered. There has been a history of satisfactory employment prior to these unhappy events. The only element of mistrust or concern with Ms Ploner's employment is the analysis of the statistics by the company which link her to these events. I find that simply not made out and there be no reason for any mistrust of Ms Ploner in the future. I note further, from the evidence of Mr Livingston, that the problem of disappearance of funds stopped once it became known that cash flow analysis was underway. That does not implicate Ms Ploner. The fact that the disappearance of cash has not continued past her termination does not implicate Ms Ploner. There is no valid reason not to order reinstatement. I order reinstatement forthwith. I order payment of wages for time lost. I will publish my decisions in full in due course. 41 Orders for reinstatement are issued herewith. 42 Matter No IRC 3894 of 2001 is so concluded. oo0oo - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 5 September 2001 Matter No IRC 3894 of 2001 AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION, NEW SOUTH WALES BRANCH (ON BEHALF OF MAREE PLONER) AND WESPORT BOWLING CLUB LIMITED Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ORDERS 1. Pursuant to section 89(1) of the Industrial Relations Act 1996 Westport Bowling Club Limited is ordered to reinstate Ms Maree Ploner to her former position on terms not less favourable than those that would have been applicable if she had not been dismissed. 2. Pursuant to section 89(3) of the Industrial Relations Act 1996 Westport Bowling Club Limited is ordered to pay Ms Maree Ploner the amount she would, but for being dismissed, have received between the termination of her employment and reinstatement. 3. Pursuant to section 89(4) of the Industrial Relations Act 1996 the Commission orders that the period of employment of Ms Maree Ploner with Westport Bowling Club Limited is taken not to have been broken by the dismissal. I so order. The Hon. R W Harrison Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.