Industrial Relations Commission of New South Wales CITATION: Benson and Western Sydney Automotives Pty Limited [2006] NSWIRComm 1040 APPLICANT Kylie Louise Benson PARTIES: RESPONDENT Western Sydney Automotives Pty Limited FILE NUMBER(S): 5672 of 2004 CORAM: Murphy C CATCHWORDS: S.84 application claiming constructive dismissal from resignation following alleged threat of termination for serious misconduct involving practice of cash-jacking (i.e. false) price of vehicle for sale to attract higher credit from finance company. Applicant said to have capacity; motive; and opportunity with no plausible alternative available to applicant's alleged behaviour - witnesses credibility compared and applicant's evidence preferred on crucial evidence of involuntary resignation - Applicant constructively dismissed - Respondent's investigation flawed. Respondent failed to discharge onus in case of dismissal for serious and wilful misconduct to prove conduct on balance of probabilities. LEGISLATION CITED: Industrial Relations Act 1991 Allison vs Bega Valley City Council reported at (1995) 63 IR 68 Claric 218 Pty Ltd trading as Sanity Music and Meldrum reported @ 1988 volume 91 of IR at page 296 Gartrell White No 3 and Pastrycooks reported at 1990 35IR @ page 70 SDA and Jewel Food Stores Case at 22IR @ page 1 Humphries vs Cootamundra Ex-Services and Citizens Memorial Youth Club reported @ 128 IR at page 37 Burge vs NSW BHP Steel reported @ 105 IR at page 325 CASES CITED: Ryan vs Woy Woy District Rugby League Club 4997 of 2004 9.9.05 Murphy C. Franklins vs Webb (1996) 72 IR 257 Brigginshaw vs Brigginshaw (1938) 60CLR 336 Rheinberger vs Huxley Marketing Pty Ltd reported at (1996) 67 IR 154. Mohazab vs Dick Smith Electronics Pty Ltd (1995) IR 200 Byrne & anor. vs Australia Airlines (1995) 61 IR 32 Bigg & anor vs NSW Police Service at 80 IR 434 HEARING DATES: 14/03/05, 13/03/05, 14/04/05, 18/07/05, 07/10/05 DATE OF JUDGMENT: 04/07/2006 APPLICANT Mr M Easton of Counsel briefed by Quinns Solicitors at Penrith LEGAL REPRESENTATIVES: RESPONDENT Mr Moir of Counsel, briefed by Bateman and Battersby, Lawyers, of Penrith DECISION: - 118 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C 7 April, 2006. Matter No IRC 5672 of 2004 KYLIE LOUISE BENSON AND WESTERN SYDNEY AUTOMOTIVES PTY LIMITED. Application by Kylie Louise Benson re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1040 1 Ms Benson commenced her employment with the respondent on the 23rd November, 2002 and was promoted to Finance Manager of the Penrith Mitsubishi yard in May, 2004. In that position she was responsible for the procuring of finance for customers in association with the sales department. Hers was one of three yards operated by the respondent. 2 Her employment with the respondent came to an end with her resignation to the General Manager, Mr Kahn on Monday, 30th August, 2004. On that day she had returned from holidays and at approximately four o'clock, received a visit to her office by Mr Kahn, who raised questions about a particular deal for a customer named Demarco, which also involved Mr Demarco's brother-in-law, Mr Fadi Abi Rached. The matter leading to her resignation concerned a question of cash jacking the prices of Mr Rached's vehicle as traversed throughout the five day hearing of this matter, which concluded on the 5th October, 2005 and defined in Exhibit A. 3 The applicant contended throughout the five day hearing that her resignation was a constructive dismissal, and that she was not responsible for records which apparently showed the price of the motor vehicle sold to Mr Rached to have been "cash-jacked", by being increased from $37,000 in an original application on 24th July, 2004, to $42,661 in a subsequent application, to obtain finance from Esanda Finance for Mr Rached. 4 The applicant was represented by Mr M Easton of Counsel briefed by Quinns Solicitors at Penrith. The respondent was represented by Mr Moir of Counsel, briefed by Bateman and Battersby, Lawyers, also of Penrith. Case Outline 5 The issue of whether or not the applicant voluntarily resigned in circumstances where she had been accused of improper dealing with the Demarco/Rached finance applications, was the preliminary question to be decided. The next question was as to whether (if there was a constructive dismissal) that dismissal was unfair, having regard to the evidentiary onus in cases of dismissal for cause. 6 Were the Commission to find in favour of there being a constructive dismissal, Mr Easton, on behalf of the applicant, contended that the investigation conducted by Mr Kahn was manifestly inadequate as demonstrated by the number of unexplained and suspicious features of various documents thrown up through the extended hearing, embracing contracts prepared and submitted, and other finer details. 7 Related to that was the contentious issue as to what documentary information Mr Kahn had put to the applicant to inspire her resignation. 8 The respondent, throughout this case, inter alia, relied upon the argument that there was no reasonable opportunity or motive for any other person to have submitted the offending application to the Esanda finance company, involving the cash-jacked price of the Pajero four wheel drive involved, and eventually purchased by a customer named Mr Abi Rached. 9 On the more preliminary point, the respondent insisted through the evidence of Mr Kahn, that the applicant had quickly volunteered her resignation once the matter was put to her. As already mentioned, it was in contention as to how much documentation Mr Kahn had traversed with the applicant at the exit interview of 30th August, 2004. This was even to the extent that the applicant insisted that it was her that had produced the relevant file, rather than Mr Kahn, which had some rather scant information compared with what he contended was put to the applicant out of the documents submitted in Exhibit 7. 10 A major point of interest throughout this case was whether or not some other person such as a salesman or other staff member, might have accessed the Esanda finance company website, known as "Abacus". 11 Because that issue of the ease or otherwise with which Abacus could be accessed was raised only in the applicant's rebuttal statement, which was exhibit 3 in these proceedings, and was not included in her original affidavit, exhibit 2, the Commission allowed additional evidence to be bought to deal with the applicant's contentions. This was whilst expressing astonishment that the respondent's case did not address such a fundamental issue in their original reply to the applicant. Related to that, Mr Easton rightfully raised concerns that at no stage, (according to the applicant's case), was she properly made aware of the reasons for her dismissal, and that it was only upon the respondent's reply, largely through the original statement by Mr Kahn, exhibit 5, which alerted her to the real reasons for her dismissal and inspired her to depose as to the Abacus system accessibility. This was also in contention, that is, as to whether or not the applicant was informed and knew of the proper reasons for her dismissal. The latitude then allowed to the respondent's case on this score, especially to the witnesses, Ms Dent and Mr Elliott, who were fellow Finance Managers at other car yards belonging to the respondent (relief in the case of Ms Dent), raised a conflict as to the simple requirements for accessing Abacus, according to the applicant, as opposed to the much more detailed and multistep process of passwords and ID entries contended by Ms Dent and Mr Elliott, for the respondent. 12 The Commission remains concerned that that basic issue, as to the number and level of passwords required for entry into the Abacus system was raised only by the respondent following the matter being raised in the applicant's reply affidavit Exhibit 3. It was difficult to accept that the respondent, and the respondent's solicitors, should not have realised the importance of establishing that there was no reasonable chance for another staff member to have made the offending application to Esanda, as this was shown to be crucial to the respondent's case once it got underway. The Commission was therefore put in the position of having to juggle the interests of both parties without prejudice to either, with the obligation to be properly informed. 13 On that aspect of allowing belated evidence from the respondent to deal with that fresh matter, the Commission had allowed for the applicant to be recalled in the event that Mr Easton believed that his client was prejudiced by the respondent being allowed to extensively reply to her rebuttal statement in respect of the password process in the Abacus system. Mr Easton passed up that opportunity, on behalf of his client, and instead relied upon her original evidence, contending that the proceedings had gone long enough and her evidence should stand against theirs. This left the Commission with the evidence of the applicant, as against two officers of the company called, who contradicted her as to the capacity for anyone other than the applicant to access Abacus, unless they had her codes. Mr Kahn, when he also contended how difficult it was for the likes of himself to enter the system to obtain information and having to rely upon the two other finance managers, Ms Dent and Mr Elliott to do that for him, and on one occasion, a third, Ms Horan. 14 The credibility of the various witnesses was unusually important, with Mr Moir suggesting several areas where the applicant was shown to be unreliable. Countering that, Mr Easton exposed areas where he believed the evidence of Mr Kahn could not be relied upon. He also cast expursions on some of the evidence given by Mr Elliott and Ms Dent. 15 Primarily, however, Mr Easton relied upon the fact that the onus resided with the respondent to prove the applicant's guilt. Mr Easton's submissions maintained that onus was not discharged, especially where there were many loose ends, mostly shown by the contract documentation associated with or collateral to the various applications made to the finance companies, Esanda and GE Finance. The serious question arose for instance, (never clarified before the Commission), as to what action was taken against the particular salesperson involved in the preparation of the sales contract to do with the offending application to Esanda. Applicant's Evidence 16 The applicant's case was that towards the end of a period of two weeks leave, on the 25th August, 2004, she received a telephone call from Mr Kahn, Company Director of the respondent, as follows: Mr Kahn: "I have a few issues I want to talk to you about, and don't worry about returning to work until Monday 30th August". Ms Benson: "What do you mean? Is there anything wrong?" Mr Kahn: "No nothing? Don't worry about it, we'll talk on Monday". 17 The applicant testified that given the unusual nature of the call, she began to worry and rang Mr Kahn back on his mobile telephone saying: Ms Benson: "Nads, its Kylie. Have you got a problem with me, or is my job on the line?" Mr Kahn: "No, no, no, no! Everything is okay. We will talk about it when you come in, and no, your job is not on the line. I will talk to you when you return to work, don't worry!" 18 The applicant maintained that she continued to feel uncomfortable and confused about the phone call, but returned on Monday, the 30th August and worked all day until around four o'clock when she received a visit by Mr Kahn, who after the normal salutations had the following conversation with the applicant, after closing the office door and shutting the window. Mr Kahn: "I want to talk to you about the Demarco deal, the one which you were working on before you went on holidays." Ms Benson: "Oh yeah, I couldn't get the deal set." (Meaning the finance proposal could not be organised in a way that would receive approval from the finance company). Mr Kahn: "Do you have the deal?" 19 At that point the applicant maintained that she removed the paperwork from the Demarco file from her "over and out draw" which was a draw for files which could not be set. The conversation continued as follows: Ms Benson: "After the customer gave me his details, I submitted the deal to Esanda. The Esanda staff called me the same day and told me the customer already had a current account with them, but that account was a poor account. The person from Esanda said that they wouldn't do the deal unless the customer kept the previous up-to-date for the next six months. I then rang Demarco and explained what Esanda told me, then Demarco told me he would get his brother to do the finance for him." Ms Benson: "Demarco's brother rang me and gave me his details and faxed over his licence and other documents. I put the details in the system, but didn't submit it as I believed Esanda's staff would be able to link up the trade-in payment amount with the deal submitted earlier that day in the name of Demarco. I then rang the client and explained that it would be best if he could wait until I got back from holidays. Just before I went on leave, I also told Barbara, (my fill-in) not to put the deal through at this stage." 20 According to the applicant's recollection Mr Kahn then said: "Esanda told me about the second application." Ms Benson: "That's impossible. I didn't submit it." 21 According to the applicant, the respondent in the person of Mr Kahn then said words to the effect: Mr Kahn: "Look I can't have anyone working for me that I can't trust." Ms Benson: "What do you mean?" Mr Kahn: "You have the choice of getting fired and receiving your commissions for the month and not two weeks in lieu, or to resign and receive your commissions and your two weeks in lieu, and your two weeks of holidays that you have not used. Oh, and I am not happy with your performance." Ms Benson: "I don't understand, I haven't done anything wrong!" Mr Kahn: "I've told you what the reasons are, and I've given you the choices. That's it." 22 The applicant told the Commission that at that stage, she began to cry and that she believed that she had no other choice but to resign and without thinking further on the issue, said words to the effect: Ms Benson: "In that case I'll resign." Mr Kahn: "Put your resignation in writing." Ms Benson: "What should I write?" Mr Kahn: "Put that it's due to personnel reasons." Ms Benson: "Who is going to be here then?" (meaning who will be located at Chrysler GPI doing finance) Mr Kahn: "No one. Barbara will be there for two weeks to tidy things up, then there will be no one here. Don't worry about it, I will give you a good reference. I will put the reason you left was because of staff cutbacks." 23 She was then asked to finish at 6pm that evening. 24 In her rebuttal statement to that of the respondent's witness statements, the applicant provided more details as to the case against her contained in the respondent's witness statements involving cash-jacking. This commenced with the fact that in late July, 2004, she submitted a formal finance application for Mr Demarco to Esanda for the purchase of the four wheel drive Mitsubishi Pajero. This was rejected, and soon afterwards, she tried to arrange finance for the same vehicle in the name of his brother, Mr Abi Rached to purchase the same vehicle. 25 It was in respect of the application for Mr Rached that she claimed in her reply affidavit that she now understands that she has been accused of cash-jacking. This she denied, and also denied ever formally submitting a credit application for Mr Rached, or putting any wrong and misleading information into the computer system in respect of that application. 26 The applicant testified that with her original application form for Mr Demarco, Mr Rached's brother, she had used Esanda because his trade-in vehicle had previously been financed by that company, and the new deal, involved paying out the balance of the loan on the trade-in. Because the trade-in vehicle was worth less than the balance of the loan that Mr Demarco had with Esanda, it was recorded in the documentation as a "negative trade-in". This meant that the trade-in actually increased the amount he wanted to borrow to buy his new car, because the new arrangement would take over the debt from the previous car loan. 27 Beginning with paragraph 9 of the applicant's rebuttal affidavit was the highly controversial area concerning for entry into the computer Esanda program and where she outlined what she believed was the necessary steps involving the use of user ID and passwords for applications using the Abacus system. She first stated that each yard had its own user ID, which she claimed meant that anyone operating the Abacus system at a particular yard does so under the one user ID, usually the initials of the finance manager of a particular yard, and at the Chrysler GPR at Penrith where she was working at the time of the dismissal, (that single user ID was KLM being her initials). 28 At paragraph 10 of her affidavits, exhibit 3, the applicant contended that passwords were also shared by all yards and at the time that she was working for the respondent, passwords were either "password 6" or "password 7", which she understood to be because the respondent had one internal relief finance person operating from all three yards. 29 Significantly, the applicant maintained that this practice enabled anyone who knew the user ID and password to enter, modify or tamper with existing information of any unsettled financial deals. She went on to claim that all three yards were interconnected and as such, the finance system is accessible to anyone at any of the yards at any time. 30 The applicant went on in paragraph 11 of her affidavit to outline the procedure which she insisted was all that was required with the following steps: a - enter user name (KLB) b - enter password (password 6 or password 7) c - Main menu then appears with 20 options to click on. 31 The applicant then set out all the details which should be inputted and the information provided through the system, which was secondary to the central issue of what security surrounded the system and who might have entered the information in place of the applicant, given her denials of submitting the offending transactions. 32 As mentioned earlier, the evidence of Ms Dent and Mr Elliott showed that there were significantly more steps by way of passwords and ID entries, than that insisted upon by the applicant in her evidence. 33 At paragraph 12 of her affidavit - exhibit 3 - the applicant again set out the procedure under the heading of "what was necessary to make an enquiry of the Abacus system, where again she suggested, all that was necessary was for her to enter the user name, which in her case was "KLB" and then to enter the system password, (either Password 6 or Password 7). Thereafter, a main menu appears with approximately the twenty options referred to earlier, and the operator selects the desired inquiry. The operator simply selects the application they wish to investigate. 34 Also in her affidavit, exhibit 3, responding to Mr Kahn's affidavit, the applicant denied ever entering the cash price described as the price-jacking of $42,661 at any point in time. Her actions in respect of Mr Abi Rached (Mr Demarco's brother) were limited to the fact that on the 27th July, 2004, she opened a new customer credit application for him, and completed the applicant's details screen, and began completing the income details, which generated a credit assessment number under the system. However, whilst completing those income details, it became apparent to her that Mr Abi Rached had not provided a computer pay slip from his current employer to verify his income. Knowing that Esanda would not provide finance without the computer payslip verifying his income, she did not complete anymore details at that stage. Nor at any stage after this did she make any further alterations to his credit application or any further attempt at an application with Esanda. 35 The applicant went on in that affidavit to claim that Mr Kahn had never advised her verbally or in writing, that he would not tolerate the practice of cash-jacking at finance department meetings as has been insisted upon by him in his affidavit, which was exhibit 5. 36 She also denied cash-jacking any deal, and went on to claim that she was the person who informed Mr McNaughton, who was her boss at the time, of the fact that another officer of the company, Ms Kim Horan, who is a business manager (or finance manager) of Penrith Mitsubishi Yard of having increased the price of the vehicle by approximately $30,000 prior to her (Ms Horan) going on leave. She informed Mr McNaughton of the action, who informed her that he had spoken to Mr Kahn about Ms Horan's actions. The applicant observed that Ms Horan was subsequently relocated to the Penrith Nissan Yard and shortly after that relocation, Mr McNaughton had said to her - "Kim has moved because Nadim wants her close to him so he can monitor her". As far as the applicant was aware, Ms Horan was still employed, despite her actions. There were several other less important issues reckoned by Mr Kahn that the applicant denied and, in the absence of any clear indications otherwise, the Commission was not too concerned about those matters, such as what her targets levels had been, what position she'd actually been employed originally. 37 Some of the main points of the applicant's evidence given under oath by the applicant in the witness stand were as follows: · The applicant emphasised how she was still on annual leave when called by her boss, Mr Kahn, telling her not to start back on Sunday as scheduled and that he wished to speak to her about something on the Monday. Importantly, she was advised to the direct question from the applicant, as to whether her job was on the line, that everything was okay, we'll talk about it when you come in" and "no your job is not on the line". The significance of this being that the applicant was perhaps lulled into a state of unpreparedness and then requested, according to her, to resign at the meeting on 30th August, 2004. · Within her affidavit, the applicant insisted that Mr Kahn had not mentioned cash-jacking in the conversation with her, but launched into the fact that he could not trust her, he was not happy with her performance, and that she had a choice of getting fired or to resign and receive additional benefits. · In respect of exhibit NK1 attached to Mr Kahn's affidavit, exhibit 7 at page 16, the applicant insisted that the only writing on that page belonging to herself were the words "Penrith City Cars" and the numbers "289315934". These numbers and this writing was only on that application because it formed part of a template begun by the applicant for applications for customers and was of a lot of fifty or sixty which she would photocopy every time she ran out so that she did not have to photocopy every time she had a customer. She kept those photocopied forms in an unlocked filing draw with the rest of the files in her office. · In respect of the details of assets/properties filled in later by Mr Elliott, the applicant testified that she had ascertained from Mr Abi Rached that he was buying a residence with his father, but given that it was only a shared asset, his "affordability" did not justify it being included. · In respect of the respondent's contention that he mentioned on a regular basis at meetings of staff, of the prohibition of cash-jacking, the applicant firstly contended that the meetings were far from being regular and were in fact "once every blue moon", but probably every six or seven months at least during her time, and at those meetings, such things as interest rate rises, commission structures and changes to finance companies were the topics of conversation. She believed that she had attended three meetings in the nineteen months she held the position. She made the point that whilst she insisted that staff were not regularly reminded against cash-jacking as claimed by Mr Kahn, that there was no need to remind the staff, because they knew they should not mislead finance companies. This evidence of the alleged regular warning was not important except for the contradiction offered by some other evidence. · Under cross-examination, the applicant readily agreed that there could be severe consequences to the practice of cash-jacking, which included forcing her employer out of business, and she replied, "most definitely" as to whether or not she was aware of the repercussions. Further into cross-examination, she suggested that she'd learnt this at her previous employer. · She testified that once the paperwork had been done in the way of a sales contract, that the customer goes back to the sales person, i.e., after the finance application being made by the finance manager such as herself. This was relevant to the sequence of what happened to the offending "cash jacked" contract with someone else's writing upon it. e.g. p.16 of NK1. · Under stiff cross-examination from Mr Moir, the applicant insisted that there was the limited requirement of user name, KLB (in her case) followed by the use of a password, password 6 or password 7, being sufficient to access the Abacus system to apply for an Esanda loan. · When taken to the possibilities of other persons connecting into the system using her passwords, the applicant could not provide any specific reference to a specific person, although insisting that it was possible for others to do so. It was noted by the Commission that there was no attempt by the applicant to nominate specific persons. She repeated that she believed that other yards could access the system from their own yard. She agreed that herself or Ms Dent were the only ones that were allowed to obtain the information from the Abacus system from her particular car yard. She insisted however, under pressure, that it was very possible for a person such as a salesman to enter the system and submit an application such as the one for which she was dismissed. · The applicant, also in cross-examination, gave further details as to the alleged major cash-jacking episode involving Ms Horan, advising that she had tried to contact Ms Horan whilst she was on holidays and that the episode had occurred in January, 2004. She significantly also gave evidence that she had been threatened by Ms Horan following her advice to the General Manager of that episode, Mr McNaughton, (who gave evidence in these proceedings on this issue). · During the cross-examination of the applicant, the Commission's attention was taken in some detail to pages 12-26 of the NK1, exhibit 7, relating to the Fadi Abi Rached deal. Pages 58-74 which were copies of the finance applications to Esanda relating to the Rached deal; pages 27-43 related to the Demarco original application; and at pages 44-57 inclusive, which were copies of the finance applications to Esanda in relation to the Demarco deal. · Exhibit 4 was tendered during the evidence of the applicant's giving examples of cash-jacking. · The applicant gave evidence that her commission arrangements were based entirely on the finance applications as compared with sales people, who's commission is based upon the profit made on each car. · The applicant gave evidence of only being fully aware of what she was being accused of by way of cash-jacking, upon the receipt of the affidavits of the respondent, although being fifty per cent sure of what she was getting accused of, but did not understand why. She did not understand the basis of the accusation. She further testified that although she was aware since the 30th August, 2004, that she was being dismissed over the allegation of misconduct in respect of the Fadi deal, she did not understand how it came about, and reiterated that she did not submit the revised cash-jacked Fadi deal, and that she informed Mr Kahn that she had not submitted the deal. · She also insisted in cross-examination that the reason that she did not submit the Rached deal was because the Esanda Finance Company would be able to link the trade-in payment with that of his brother, the Demarco deal, and she informed Mr Kahn of this at the time of her resignation, because the application which she had commenced to Esanda would have involved misleading information to the company. This would be on the basis that the customer trading in a car would be actually his brother's car. For that reason his personal details were as far as she got in respect of that application, and did not submit it. · The other reason why the original application appeared to Esanda for Mr Rached was not submitted, was that he could not verify his income. The applicant went on to say that she had advised him that she would need proof to verify his income by way of computerised payslip or a tax assessment. · The applicant verified that on the 27th July, following rejection of Mr Demarco's original application to Esanda on the 24th July, she tried to arrange the finance for the same vehicle in the name of Mr Demarco's brother, Mr Abi Rached. · She also reiterated that anyone could tamper with the existing information on an unsettled financial deal on the Abacus system, although qualifying that it was possible. · The applicant was taken to page 27 of the exhibit 7NK1, which was copy of the earlier 24th July contract of sale, showing the then purchasers name as being that of Mr Demarco who apparently signed the document. It also showed a trade-in for Mr Demarco's original vehicle of $3,000 and showing $7,000 already owing on that vehicle. The balance payable was $40,990 to be got from the finance company. The document also showed the salespersons name as being "JAK". · The applicant denied that certain areas of that contract were handled by her and indicated that the customer signs the document in front of the salesperson, rather than herself. · The applicant was then taken to MK page 37, which was a proposal form to GE Automotive Finance Services for the same vehicle. The cash price $37,990 and the total amount payable of $42,661.55 (after negative trade-in). The applicant submitted that application on the same day as another one to Esanda for Mr Demarco, that is the 24th July. Pages 29-40 of that document NK1 were filled out by the applicant and Mr Demarco signed the document at the bottom of page 40. · The applicant was then taken to page 44 of NK1, application No. 5028 made to Esanda. on the 24th July. · The applicant denied ever being shown that document by Mr Kahn at her exit interview. · Next the applicant was taken to page 56 of NK1, bearing the number 5029 assessment number, which contained the code name SL standing for the fact that the applicant's repayments had been slow in his previous loan from the company. · The applicant testified that her application made to GE on behalf of Mr Demarco on the same date, the 24th July, to Esanda, was also rejected by the company, at which point, Mr Demarco suggested that his brother Mr Abi Rached would do the finance on his behalf, which was done on the 27th July. · In answer to the question as to whether anyone else might have tried to arrange finance in Mr Abi Rached's name between the 24th and the end of July, the applicant answered that she could not honestly say. · Next the applicant was taken to page 12 of exhibit NK1, which was the controversial contract form for a purported sale involving Mr Abi Rached. Whilst the description of the vehicle was the same as the Demarco application, the applicant agreed that the sale price in section B of the contract was $42,661. She agreed that that price was false and on its face, the price had been "jack-uped". · She was then taken to 16 and 17 concerning an application for credit filled out in the name of Abi Rached. The applicant significantly denied that the details included there were her handwriting, except for the very top first line which read Penrith City Cars, which the applicant had given earlier evidence that it simply represented the title she had given a bundle of documents copied by her with that heading to save time in making applications. · Page 58 and onwards dealt with her applications No. 5030 submitted to Esanda on the Abacus system, and showing at page 59 that the cash price had been increased to $42,661. The words "decision delayed" were included, which is actually at page 58 of that row of documents. · The applicant gave evidence that she did not submit anything after 27th July, 2004 by way of an application. · The next document application No. 5031 to Esanda was at page 63-67 and contained several differences pointed out by Mr Easton to the earlier report 5030, although dealing with the same Mr Abi Rached, and which shows that that application was declined on the 27th July. · At that point the applicant agreed with Mr Moir that, had the application been approved, she would have been entitled to a commission of around $1,000. · The applicant was then taken to the application 5045 between pages 69 and 73 of NK1 in respect of Mr Abi Rached. The applicant agreed that at page 73 the reason for the application being withdrawn, prompted a comment from Esanda "please reapply once the 2004 tax assessment rates notice…..". She was doubtful as to whether or not the matter was withdrawn by the finance company and went on to suggest that the matter might have been cancelled because of the absence of the tax assessment, given that Mr Rached could only supply a letter of employment, and did not have pay slips. · The issue of the applicant's "one hundred percent assurance notice to Mr Moir that she had obtained only a letter of employment and had not obtained that tax assessment between the 24th July and the 12th August, became relevant further on into the case. · The applicant denied being aware that Mr Demarco had taken possession of the vehicle after the 24th July and she agreed that there may have been some emergency to get the finance approved because of that fact. In that connection, she was taken back to page 28 of NK1 showing the goods had been delivered on the 24th July. That document contained the signature of Mr Demarco as receiving the vehicle. · The applicant gave evidence that it was not her responsibility in respect of the delivery of vehicles, but that of the sales team. She denied, when pressed, of any knowledge that Demarco had taken delivery and that when she received the contract, it was not signed. Mr Demarco signed the agreement in front of the sales team and not herself. · The documents at page 23 of NK1 according to the applicant, was a reply received by her from GE Finance Company in relation to Mr Rached. The misspelling of Mr Rached's name on that contract was a fact noted in proceedings. · The applicant agreed on that page that GE had advised the applicant on the 9th August that the application in respect of the vehicle purchased by Mr Abi Rached was not approved, and agreed with the assessment by Mr Moir that a deposit of $4,300 was to be provided. She repeated that the tax assessment notice was necessary for the approval for Mr Rached's application therein and that only a letter of employment was volunteered by him, and not a payslip. · On this point the applicant was asked that, if this was true, why did she send a fax to an officer of Esanda saying that "a tax assessment notice for Mr Rached is attached". In this regard, she was taken to page 79 of NK1, which was a copy of a facsimile message to Esanda, which stated that there was a copy of a tax assessment and water rates attached. The applicant explained the apparent inconsistency in her evidence on the basis that "no I actually attached a copy of the letter of employment and rang her I made a boo boo". She defended that mistake on the basis that "she had a hundred miles of things going through your head, and I had tax assessment on the brain because I'd just spoken to the customer, I accidentally did write it". This was an issue of credit taken up by Mr Moir later as earlier mentioned. · The applicant was taken to page 73 of NK1 where the credit assessment number 5045 appeared and which Mr Moir said showed the application from Mr Rached was withdrawn on the 11th August, 2004. The applicant denied knowing that the application had been withdrawn at that time, because she did not get past the first base in respect of that application on 27th July. Someone else must have done the application, but she had no idea who it might be. This application withdrawal occurred just prior to her departure on leave on the 12th August. · The Commission noted the extraordinary fact that the reports referred to throughout the evidence were not dated. As to the date inserted under the heading Date Prepared of the 18th February, this was simply the date at which they were printed out by the respondent for the purpose of this litigation. · In respect of this material discovered belatedly by the respondent, Mr Easton made the point that the introduction of such material took the respondent's case to a new level of detail. · The applicant at this stage of the cross-examination was taken to page 95 of NK1 which was a copy of a tax assessment form sent to the applicant, which the applicant denied receiving, and again repeated that her use for word tax assessment was because "she had it on the brain". She made the point that had she received the tax assessment that Mr Abi Rached's application would have been approved there and then, and the reason she did not provide it by the 9th August was that she did not have it, and denied subsequently forwarding it to GE Finance Company. The applicant repeated that she was informed by Mr Rached that he was a builder and that this is why he could not forward or post it. · In respect of page 13 of NK1, that contract relating to Mr Abi Rached, included a sale price of $42,661 jacked-up from a previous price and the applicant strenuously denied that she had ever seen that contract before. In respect of page 28 of NK1, the Demarco contract with a price of $37,990, the applicant denied instructing the sales person to put that figure into that contract. She denied that it was a customary role for her to instruct the sales person, saying that it was not her place and she was not the sales manager. The only handwriting on that document belonging to the applicant, was right at the bottom of the page and she reiterated that it was the sales person who decided what the price of the car would be sold at. · The applicant also denied that a sales person would only know the cash price, make and model of a car if they had the file with them, as the information was available from the internal system, which discloses everything on the car. · The applicant dealt with several possibilities of who may have entered the system to alter the record as she was alleged to have done to price-jack the car and to prepare the sales contracts. · The applicant was next taken to the issue of her allegation that Ms Kim Horan had increased the price of the car by approximately $30,000 by cash-jacking and insisted that she saw the documented proof of that being done. She insisted that it depended on the make of the car as to whether such a large increase in price might be possible. She repeated that she was aware of the relocation of Ms Horan as a result of the incident. She has not spoken to Ms Horan since, because Ms Horan had threatened her after the incident. · On the point of procedural fairness, the applicant was taken to specific matters of her statement and that of Mr Kahn, by Mr Moir, insisting that she had been told by Mr Kahn that "everything's alright, we'll talk about it on Monday, don't worry about it, we'll talk about it on Monday" and that he had also said "No No" to her questions if there was anything wrong. She thought it was unusual that he'd told her not to worry about coming in on the Sunday as planned for her return, and that it was also unusual for Mr Kahn to make such calls. She confirmed that she had asked Mr Kahn on the phone whether her job was on the line, because of the reaction she'd had to his phone call and that Mr Kahn was very brief . · The applicant confirmed that she'd had definitely began to cry with the interview with Mr Kahn and that he had given her a choice of either resigning or being dismissed and the matter being referred to Esanda. · The applicant denied that Mr Kahn had said to her that he was not keen to take her resignation if she was going to bring an action for unfair dismissal. Such an aspect did not come up in the conversation and that after her volunteering to resign, he told her what to write. · As to whether the finance manager's role was to ensure the vehicle was delivered, the applicant answered that that was not necessarily so, and that the sales manager would usually push for it also. · The applicant confirmed that she was unaware of the fact that Mr Demarco had taken delivery of the Mitsubishi Pajero on the 24th July, and that the only document signed by Mr Demarco in front of her was a finance application and a privacy form. · The applicant was taken back to the issue of the steps required to enter the Esanda system, confirming that it was not even necessary to insert a name into the system, and that once into the system in respect of Penrith City Cars, all car deals were bought up, claiming also that someone could put an application in through the Esanda system, without actually meeting the person they were putting it in for. The customers' personal details would already be within the system. · The applicant claimed that the respondent Mr Kahn had contact with Mr Demarco and Mr Charles Chiha who provided the reference to Mr Abi Rached, and that Demarco and Chiha both looked through the vehicle and she understood that they had been referred by Mr Kahn. · She again reverted to the reasons why she did not submit the application for Mr Rached, on the basis that she needed proof of his income and repeated that in the process, she had spoken to Mrs Dent about the situation upon her progressing on leave and had asked for Mrs Dent not to touch the deal, as it was "a tricky one" and that she would fix it when she came back from holidays as she had had a problem with it. Both Mr Demarco and Mr Chiha had spoken to her after the sales contract had been done (page 84 of the 13th April transcript). She noted and answered the question that it was Mr Chiha, who had signed the letter of employment on behalf of Mr Abi Rached, confirming that Mr Rached was an employee of Diamond Bay Constructions. · In further examination by Mr Easton the applicant was taken to 13 of NK1, where the applicant had claimed that the only writing on that page was the words "Penrith City Cars" and the number next to it. The page 13 referred to with the amount $42,262 was not the applicant's handwriting and she had no idea whose initial was scrawled across part E of that form in the top right hand corner and likewise, the similar initial on the bottom left hand corner was not belonging to herself. Neither was the writing next to Mr Demarco's signature hers on the application of the 24th of July at pages 28-31 of NK1. · She was next taken to the application 5030 at page 58 to 62 of NK1 and confirmed that this was the application which she did not persist with or any thereafter. · The applicant's attention was invited to pages 79 and 95 of NK1, and where Mr Moir had pointed out to the applicant the strangeness of the fact that the tax assessment was faxed ostensibly to her on the 4th August, well before the applicant went on leave. The fact that the applicant testified that she had made a mistake in that regard was also drawn to her attention, whereas page 95 purported to show the information being faxed to the applicant on 4th August. The applicant claimed that she did not have that document. If she had the form, she would have been able to have the application approved and not have the matter carry over whilst she was on holidays. · The applicant claimed that the applications to GE Finance at pages 75-78 were those done by other people whilst she was on holidays and would show Mr Rached having the National Bank as his employer, rather than a building company, as he had informed her. · The applicant claimed that outside of those matters contained in the Demarco file, she had not seen the applications contained after page 35 of NK1 until the commencement of this hearing and these were not shown to her on the day by Mr Kahn. · Also denied by the applicant was that Mr Kahn had taken her to the fact that it was a figure of $42,661 in amongst the documents and she was simply told by him that the applications had not been correct. She did not think to say to Mr Kahn, asking about the documentation from the computer records as she was too upset and was "not thinking along the lines of proof". The Respondent's Evidence 38 Mr Kahn, as Managing Director of Western Sydney Automotives Pty Ltd gave the principle evidence of the respondent. His affidavits were marked Exhibit 5 and Exhibit 6, the first being filed on the 1st March and the second on the 13th April, 2005. Exhibit 7 - with the attachment NK1, comprising some 124 pages of documents inclusive of credit assessment applications and draft contracts, was also admitted into evidence. 39 He gave evidence of the events of the 30th August, 2004 where the applicant resigned from her employment with the respondent. 40 An important piece of Mr Kahn's evidence was that, whilst the applicant was on annual leave prior to the 30th August, he was approached by Mr Steve Elliott, another finance manager of another yard with the comment "I don't think Kylie is doing the right thing at Penrith Chrysler Jeep, she's falsifying documents". Mr Kahn asked "what do you mean?" to which Mr Elliott replied "you'd better go and check the Fadi deal" (meaning Fadi Abi Rached). Later that day he went and looked at the papers in one of the applicant's finance files marked NK1, pages 12-26 of those documents in respect of the Abi Rached deal. He checked the applications made in respect of that customer marked 5030, 5031 and 5045 which revealed that the applicant had made an application with a cash price of $42,661. At pages 27-43 was the earlier finance application in respect of Mr John Demarco (Mr Rached's brother), showing that that did not go through with the Esanda finance or the GE Automotive Financial Services. Both those applications showed a sale price of $37,990 with a negative equity in the trade-in. Neither Esanda nor GE approved of those applications. The subsequent Fadi (Abi Rached) deal showed a false sales figure of $42,661. 41 Mr Kahn maintained that he had previously advised finance department staff on many occasions during regular finance department meetings, that he would not tolerate the practice of cash-jacking. 42 Mr Kahn gave evidence of contacting the applicant after she had left a telephone message advising that she would not be able to come back to work until the 29th August, in lieu of the 28th as scheduled. After receiving that message Mr Kahn rang the applicant, telling her that there was no point in coming to work on Sunday the 29th August and he would see her on Monday, to which the applicant responded "is my job in jeopardy?" to which Mr Kahn replied "it's a matter that we need to discuss face-to-face on Monday" to which the applicant further responded "are you going to terminate me?" Mr Kahn replied "we'll discuss it on Monday". 43 When the applicant was approached by Mr Kahn on Monday, Mr Kahn recalls that he said to the applicant "did you ever misrepresent a transaction to the finance company" to which the applicant replied, "no" and upon being shown the paperwork in respect of the Abi Rached deal, the respondent then asked "tell me what's wrong with it". The applicant, after looking through the documentation said "there is nothing wrong with them", to which Mr Kahn replied "you have jacked the price of the car to the finance company. You know how serious a matter this is. We could lose our dealers licence, I will not tolerate anyone jeopardising our dealer's licence". At this point the applicant replied "this is the only transaction I have ever done this to, and I swear on it" to which Mr Kahn replied "I'm going to refer the matter to Esanda" and to which the applicant replied, "what if I just resign, what entitlements would I get". Mr Kahn maintained at that point that he said, "you'll get two weeks pay in lieu, your normal monthly commissions and a satisfactory reference from me. If I terminate you the entitlements will not be the same". The applicant's comment was, "fair enough". 44 Mr Kahn also maintained that he said at this point to the applicant, "if you're going to go to unfair dismissal, and only resign for the sake of it, then there is no point and we might as well let the matter take its natural course". According to Mr Kahn, the applicant replied, "no, that's fine", to which he said, "you can finish at 6pm". Later he testified that he meant by natural course, referring the matter to Esanda. 45 The applicant's resignation was Annexure C to the respondent's statement in Exhibit 5. She was paid two weeks pay in lieu as well as a normal monthly commission. 46 In reply to the applicant's affidavit of 3rd February, Exhibit 2, the respondent denied that the applicant had obtained the documents from the over and out drawer as claimed by her when being questioned on 30th August, 2004. He also denied that the applicant was crying, and nor did she seem distraught to him towards the end of the interview. 47 Mr Kahn next went to pages 44 to 57 of NK1, the attachment to his Exhibit 7, indicting that those documents were printed on the 18th February, 2005, being finance applications to Esanda in relation to the Abi Rached deal, claiming to have misplaced the originals printed for the purpose of showing the applicant. 48 Mr Kahn also alluded to the GE Finance application put in by Mr Steve Elliott, another finance manager on behalf of Mr Abi Rached, on or about the 21st August, while the applicant was on leave during 2004. These were pages 75-123 of NK1 and at page 124 was the Department of Fair Trading Form 4, relating to the vehicle involved. 49 Also, annexed to the affidavit of the respondent Exhibit 6 was an application marked A, called a Credit Assessment Identification report obtained from the Abacus system of the Esanda Finance Company on the 8th April, 2005, showing Mr John Demarco being declined on the 24th July for a loan. This also shows Mr Abi Rached, who was the subject of an application being declined on two occasions, on the 27th July, 2004 and being withdrawn on the 11th August, 2004. This document had been provided in April, 2005, just prior to hearing by Ms Horan, another finance manager. 50 Mr Kahn also denied in his statement the matter alleged by the applicant, that Ms Kim Horan, a previous finance manager, had cash-jacked a deal and that she had merely been transferred from Penrith Mitsubishi to the Penrith Nissan yard. That transfer, he said, was a result of her attitude to new car customers, reflected in the customer survey improvement process and had been raised by Mr Phil McNaughton and he had made the decision then to transfer her to become the Finance Manager for the used car department. 51 At the beginning of his cross-examination, Mr Kahn was asked to confirm whether all the things he considered relevant to proving that the applicant was guilty of cash-jacking have been included in the attachment to Exhibit 7 of NK1. 52 In answer to the important question as to whether these documents NK1 were not the documents in his possession during the investigation of the applicant's alleged cash-jacking in August, 2004, Mr Kahn replied that, "they weren't the originals because I had to reprint them, I could not find the originals when I did my initial investigation". He went on to re-emphasise, "I did have the originals" that is at the time of the investigation. They only became important once he received the applicant's unfair dismissal application. 53 The documents in NK1 which Mr Easton took Mr Kahn through, were said to be as follows: · Pages 12-26 relate to a contract in respect to Abi Rached. · Pages 27-43 relate to the Demarco deal. · Pages 44-57 are copies of Ms Benson's credit assessment applications for Mr Demarco to Esanda. · Pages 58-74 are Ms Benson's dealing for the Abi Rached applications to Esanda · Pages 75-132 are the applications by Mr Elliott dealing with Mr Abi Rached's application to GE Finance 54 Mr Kahn confirmed that he had formed a view about each of the documents contained in NK1 involving Ms Benson's dealings for Mr Abi Rached as against Mr Elliott's dealings for the same gentleman. 55 Mr Kahn distinguished the actions taken by Mr Elliott as being involved afterwards, in his words, "pick up the pieces". 56 On the basis that all the information was available to him as obtained on the 28th February from the computer system, Mr Kahn agreed that the material in his second affidavit, i.e. Exhibit 6, was not known to him when he swore his affidavit on the 28th February. Nor was it known to him in August, 2004 at the time he called Ms Benson to talk about the cash-jacking. When pressed by Mr Easton that he therefore could not have known the dates that the applicant made the applications to Esanda, Mr Kahn then denied that he did not know what dates Ms Benson made the applications at the time of the meeting of 30th August. 57 Next Mr Kahn was asked whether at the two conciliation conferences before the Commission, that he was truthful and forthright in the things that he had said to the Commission. He confirmed that he had been so. Those conferences were held on the 14th and 15th October, 2004. 58 He gave examples of cash-jacking as being where the value of a car was $20,000 and a loan owed already as $10,000, but the car being traded in is only worth $5,000, cash-jacking would occur where the cash price is then jacked to $25,000 and the trade is $10,000, so it balances out the negative equity. This is cash-jacking. Both ends are increased, i.e. the sale price and the equity to cover the shortfall in the minors equity of the trade-in. 59 Mr Kahn gave evidence that the Form 4 Fair Trading Department Form with the price on it, cannot be altered during any transaction in process. 60 Mr Kahn gave evidence that whilst he'd accepted the applicant's resignation on the basis of not referring the matter to the Finance Company, that he did actually refer the matter after she departed. 61 His purpose in mentioning Esanda to the applicant was that he wanted to go through the correct process, and that if Esanda felt that she was not trustworthy, and it was illegal, he would let them make the decision to whether she was fit to continue her current employment. He gave evidence that he would have been happy to give her a "disciplinary action" and that he did not want to sack the applicant. This is why he was going to refer the matter to the Finance Company. He went on, later in his cross-examination, to say, "..it was a case of how they felt about continuing to deal with her because she swore to me at the time, this was the only transaction she was involved in that she'd cash-jacked". 62 Again in cross-examination, Mr Kahn could not recall whether or not he had heard of the price-jacking involving the applicant prior to the 21st August when Mr Elliott had approached him, neither could he remember whether it was after everything had been finalised. 63 The remainder of Mr Kahn's evidence was secondary to the above, but important enough to be summarised as follows: · Mr Kahn did not consider the possibility of anyone else being involved in the process after his investigation and that he was one hundred percent certain that it was the applicant who was responsible. · He denied that he was only influenced by the fact that the applicant's initials appeared on the applications. He maintained that it was only because of the total investigation that he made his decision. The applicant's initials on the applications 5045, 5031 and 5030 where only part of his investigation "and the fact that I knew she was the only person there, to the best of my knowledge during those days". The use of the ID and password to access the system was another indication, unless someone had falsified the applicant's initials. He maintained that whilst it was possible for someone to falsify someone's initials into the system, "it was highly unlikely". He agreed that the initials inputted originally into an application would stay with such an application until it was deleted, such as the applicant making an original application for Mr Abi Rached, which she did not complete. · Next Mr Kahn was taken to page 86 where the signature of Mr Abi Rached dated the 16th August appears, but on this occasion disagreed that this was to be accepted as the date Mr Rached had signed it. He was vague as to whether the application was made to the GE Finance Company as he had not seen it before. He went on to say that he did not look at that document when he did his investigation, at which point he was reminded of his evidence the day before, which was that the documents provided to the Commission under NK1 were the documents which he obtained information for his investigation. That is pages 75 - 132 in particular, which involves the application by Mr Elliott, used for the application for Mr Abi Rached to GE and when taken back to whether he had seen the document before, changed his testimony to say, "no, I'm saying I've seen it, but I didn't focus on it on the investigation. I looked through it. There was a bundle of documents attached to a booklet, there was certainly documents I focussed on and certain documents I didn't. That was one of them that I didn't. That was one of them that I didn't". · Next the respondent was taken to the tax invoice at page 89 of NK1 dated the 21st August and signed by Barbara Dent. He agreed that that would have been the date that that document was signed and further on in the document at page 91 which is an insurance form application, he accepted that was signed and dated on that day, but he had not looked at it prior to his being questioned in the witness stand. · In answer to a question as to whether or not he had only considered half the documents in the NK1, and the respondent answered, "no. The documents I felt were important and imperative." · A range of such documents were put to Mr Kahn and he agreed that they would be signed and dated on the dates shown, such as pages 103 and 104 in connection with Abi Rached, but qualified his answers to say that he did not actually look at the document at page 104. Likewise, at page 108 in respect of Mr Abi Rached, he did not focus on that document either. He did not pay any attention to the documents where Mr Elliott had processed the deal for Mr Abi Rached. He answered, "not in particular, no" and same in the instance of 112, he claimed that he did not look at. In respect of page 116, he did not look at the drivers licence to check if the same as that at 117, he could not verify if it was signed and dated on the 21st August, as he did not look at it at the time and in respect of page 119, he gave a similar response and again in respect of page 122, qualifying his answer that they were all part of the one document. · Page 123 was again a document that he had not focussed upon. On this occasion he refused to answer the question as to whether or not he accepted the date in signing as shown. · The decision he made after his investigation was to refer the matter to Esanda. · He agreed that he had advised the Commission in October and still agreed that part of his reason for not telling the applicant about the allegations over the telephone was that he wished to maintain the element of surprise, the other part of his reasoning was that he needed to speak to her face-to-face. · Mr Easton put to Mr Kahn that he could not have been too concerned about her honesty if he allowed her to work until 4pm before raising the matters with her on Monday the 30th August. In response, he claimed that he was in meetings all day and he could not get out and agreed that he did not restrict her access to the computer system by the applicant. He claimed to have kept control of the actual file, which he agreed, Mr Elliott and Ms Dent had worked on. He obtained the file by pulling it out of Ms Benson's filing basket, and he again denied that he had obtained it from Mr Elliott or Ms Dent. · He agreed reluctantly that he did not take the time to find out what documents had been done by Ms Dent and Mr Elliott and went on to say that he looked at the transactions that were declined in this instance, and why they were declined. In answer to questions as to whether that meant that he only looked at half the picture, he answered, "no. I investigated the picture of cash-jacking. The approval is a side issue, its got nothing to do. I investigated the issue of cash-jacking" which he went on to say is gross misconduct. · Mr Kahn denied feeling that he had avoided an unfair dismissal claim by accepting the applicant's resignation. · When asked as to whether anyone could have the same access to the computer system to obtain the documentation as Mr Kahn had done, he answered, "not anybody else and I didn't have access, I had to get one of the business managers to log me on" and on the further denial that he could have access to the system, as he did not know any passwords or ID numbers, but when asked who he got to access the system for him, he gave the answer, "don't recall. I seriously don't recall". · He was pretty sure the documents had been accessed from the clients jeep location and agreed that he could have accessed it from another location, but only through Barbara Dent, as long as she had the ID of that particular branch. He went on to deny that Mr Elliott could likewise do it from another branch, because he does not have the ID number, and when pressed, thought that it could not have been Mr Elliott who accessed the documents for him in contrast to his earlier answer. In answer to the question as to whether Ms Dent herself could have made some applications, Mr Kahn answered, "yes, but there'd be an audit trail" and in answer to the question whether he had looked at any audit trails he answered, "I did, and I didn't see any…". He agreed that he did not include in his February affidavit the fact that he had looked at the audit trail, but went on to say that he had looked at the applications that were rather created or modified to the Abi Rached deal, but could not recall how many there were, because he looked on the computer and there must have been three or four, but could not recall. · Mr Kahn confirmed in questioning that the possibility existed for the applicant's termination during the interview of 30th August, and claimed the conversation took probably twenty minutes and he agreed that he had not told her that the conversation might lead to her termination. · Mr Kahn insisted in that he had pulled out the bundle of documents and separated "the Abacus deal" (meaning the Abi Rached application) and showed the applicant the contract, and asked her what was wrong with it. The bundle included pretty much what was attached to Exhibit 7. He confirmed that perhaps half of those documents he had only glanced over. · Mr Kahn claimed to have shown the applicant credit assessment 5030 or at page 58 of NK1 which contained the applicant's initials with the wrong price, after her initial denial of anything being wrong. He claimed to have handed her the particular contract and "the Abacus deal" ….. "so she was only looking at two things". · When asked what he meant by the Abacus deal, Mr Kahn answered, "the cash-jacked deal". He claimed, "I'm talking about the printout on the Abacus system on the page that reflects the cash price of the car" and further clarified, "one - it was stapled, the six pages and I've folded it open on the page that showed the cash price with the contract" and when it was pointed out to him that this was not in his affidavit, Mr Kahn claimed that it was, when he said in the application, "I then showed the applicant the paperwork relating to the Abi Rached deal". He then defended the lack of detail in his affidavit, even though he had a solicitor and counsel to assist the preparation. · Mr Kahn was asked as to what point he spoke to Esanda about the matter and he replied that he thought it was, he could not recall, but thought it was perhaps a week after the event, telling Esanda that the applicant had cash-jacked the deal, but that she had resigned, and it was the only one she'd ever done, and that he was prewarning Esanda if something turned up in the system, that he Mr Kahn, was not party to the same, and that he had bought it to their notice, "up front". He admitted that he had therefore "covered his backside". · When asked as to whether in informing on the applicant, that he had given any consideration to Ms Benson's reputation in the motor industry. He answered, "I did at the start", but denied slandering her and that he had informed Esanda, "in private". When asked whether his actions were inconsistent with what he had offered the applicant to terminate her, he claimed, "I said she would have a satisfactory reference". He denied putting the implication to the applicant that if she resigned that he would not refer it to Esanda when he said, "no, I didn't say that. She turned around and said, what if I resign. I didn't say to her, what about if you resign. She offered to resign." · Mr Kahn's claimed to have not spoken to the other Finance Managers after the event. · Mr Kahn went on to repeat that he had said to the applicant, "please don't resign for the sake of it, and I told her that. I said, you know, because I am not going to refer it to Esanda and certainly if you're going to unfair dismissal, there is no point, because we should go through the proper process, if you feel what I have done is wrong". · Mr Kahn claimed not to have any understanding of a link between resignation and unfair dismissal, stating, "I didn't want her to resign for the sake of resigning unless she genuinely wanted to resign" but denied that he was attempting to make sure she wasn't going to make an unfair dismissal claim, and when further pressed by Mr Easton that, "well, what on earth is an unfair dismissal claim to do with her resignation?" he answered, "I don't know" and claimed in answer to the question, "you were just talking for the sake of talking?" he answered at that point, "yes". · Mr Kahn reluctantly agreed that page 28 NK1, the report on that page showed that Mr Demarco had actually taken delivery of the vehicle on the 24th July. That document showed the trade-in value of Mr Demarco's car as $3,000. · Mr Kahn was then taken to page 82 where the contract for Mr Abi Rached showed that the 21st August, Mr Abi Rached took delivery of the same motor car as Mr Demarco did on the 24th July as per the previous contract. He gave important evidence that he did not know who prepared the contract at page 81. · When Mr Kahn was taken to the bottom of page 12, which was another document of the same kind in respect to the same vehicle, that is at page 12 - 15 of NK1, he again stated that he did not know who had prepared that document. In answer to the question as to whether or not there was any doubt that whoever prepared that contract, did so on the 13th August, 2004. He indicated, "yes, I do have doubt" and went on to say that was because it was not signed. The serial number on page 12 was E0257056 and when taken back to the contract at page 81, the respondent agreed that the serial number was E0257055, which is sequentially one earlier than the one at page 81. Mr Kahn agreed that that suggested that the contract at page 12 was prepared either after the one at page 81 or on the same day. · The next document headed "Credit Application (guarantor)" was at page 16 and 17 of NK1 and Mr Kahn indicated that he did not know who filled out that document. He denied that the handwriting in the middle of that document was that of Mr Elliott, and who prepared the other figures filled out on that form. · Mr Kahn was then taken to transaction 5045 between pages 69 and 71 of NK1. Mr Kahn agreed that the mortgage figures as shown on that document could only have been inputted after information obtained from Mr Abi Rached's mortgage details. He testified in that connection that his only concern during his investigation was at page 2, then qualified under questioning, to say, "I looked at it, but predominantly at page 2". He maintained that he in answer in cross-examination, that he did try and investigate who had entered the transaction. In answer to a question put by Mr Easton, "and so did you think to look at what information had been provided at different times and who therefore could have entered the information?" Mr Kahn answered, "No, I didn't." · Mr Kahn was taken to the documents at pages 75 and 76, which were the GE Finance application for Mr Rached, completed by Mr Elliott, which showed Mr Rached having property valued at $420,000 and a mortgage balance of $340,000. He agreed that nowhere in Ms Benson's documents is there a record of the fact that an income of $1,000 a month for rent was shown therein as in the Elliott application. Mr Kahn confirmed that it was from his understanding that only at page 59 in the application 5045 was there any record of the $1,000 rental income of Mr Rached. · Mr Kahn was asked whether or not he had printed the documents on the 18th February, 2005 to which he responded, "I can't recall whether I physically printed it or Barbara printed it" but in the process denied that he has spoken to Ms Dent about his evidence. Mr Kahn next suggested Ms Dent had actually printed the document in front of him. · Mr Kahn confirmed that assessment number 5030 at page 58 of NK1 had been declined on the 27th July by the finance company. He confirmed that pages 58 to 74 of NK1 were the finance applications made to Esanda in relation to the Rached deal printed on the 28th February, 2005. · Mr Kahn was taken to the fact in documents prepared by Mr Elliott that page 75 of NK1 records a higher trade-in than previous contracts. Mr Kahn insisted that the increase in the trade-in price was done by using a wholesaler as to revalue the trade-ins, so that for example, a further $1,000 might be given, so that the finance company can conclude the deal. He denied it involved cash-jacking. · Mr Kahn's attention was drawn to the Form 4 Department of Fair Trading form and the apparent inconsistencies at page 27 of NK1, disclosing a different dealer to that at page 124. This was explained to, by Mr Kahn on the basis that he would have the original with the correct dealers name in his bag. He also considered that that part 2, which would have been completed, was not produced by him, although he could provide it. He maintained that part 2 would have been filled out, but he simply collected the wrong document. Mr Kahn also conceded that two different names appeared and he did not check that fact. He insisted that he had looked at the Police Book and seen that no other changes in the form. · Next Mr Kahn was taken to the personal reference provided by one Charlie Chehar which showed Mr Rached as being an employee and Project Manager for some three years with Mr Chehar's building company, and that was dated the 28th July. Mr Kahn acknowledged that he only glanced at that document, which is contradicted by page 77 of NK1, showing that Mr Rached was an employee of the National Bank of Australia. He acknowledged not picking that difference up. He was not told of that apparent disparity, but insisted that he did not know which is the correct details. He accepted the fact that Mr Elliott must have known that Mr Rached did not work for Precise Finishers, but worked for the National Bank of Australia when he advised Ms Dent of the fact on the 18th or 19th August. When Mr Easton pressed the proposition to Mr Kahn, that if Mr Elliott had known the information to be inconsistent, that he would not be meeting his obligations to the finance company. Mr Kahn persisted in denying that there was any impropriety and denied that the relationship with the finance company would be at risk. He avoided however, any acknowledgement that Mr Elliott's wrongdoing and misinforming the finance company on that basis, put to him, on the basis he did not know the exact circumstances. He finally agreed that if the finance company had knowingly been given false information, that that would be incorrect, but not like cash-jacking. · Mr Kahn's attention was taken to the issue of equality of treatment and taken to transcript proceedings in conciliation where he maintained at first instance that a Mr Paric, a salesman, firstly would not be aware of what Ms Benson was doing by way of cash-jacking. He suggested, "he would have been following instructions" and then responded, "I have no doubt, and I will make a phone call to verify he has been sacked, if you like". After which, Mr Kahn reverted to saying that he was unaware of what happened on the basis on the fact that he had one hundred and twenty-five employees. When that matter was put to Mr Kahn again in proceedings on 14th April, he denied that Mr Paric was still employed, but could not answer when Mr Paric's employment finished, but it was certainly the date after it was bought to the attention of the respondent in December, 2004, during conciliation conference. He acknowledged that Mr Paric was not disciplined over the issue of cash-jacking, by saying, "at that particular point, no, he didn't", but went on to qualify that the respondent did not think he was party to the cash-jacking. · The proposition was put to Mr Kahn that if a salesman is asked by anyone to write a contract for sale at $42,661, would that not be regarded as being acceptable, to which Mr Kahn responded, "no". But Mr Paric was not at that stage thought to be party to the cash-jacking. · Mr Kahn was still of the belief that Ms Benson had instructed the salesman to put in a false contract for sale. He went on to claim that salesmen operate on the instructions of the finance department, about what the sale price should be or if a contract needs to be drawn. He acknowledged that he did not find out who drafted the false contract of sale. · On the re-examination of Mr Kahn, he maintained in questioning from Mr Moir that only Ms Dent or the applicant could have been responsible for the submissions of false applications, because they were the only two who could access the system, given the access code and pass word and ID was only possessed by them. · He explained that there was no benefit in looking at applications such as that submitted by Mr Elliott, because the focal point of the cash-jacking related to the Esanda application. · He was taken to the issue as to why he had not explained to the applicant what he proposed to discuss on the 30th August at her dismissal, and explained that he had wanted her most natural reaction, "when he put the transaction in front of her". · He was also taken back to the issue of the increased trade-in involved at page 76 to 78 of NK1, increase from $3,000 to $4,200, and defended that increase on the basis that it was, "normal deal of business practice. · He was taken back to the salesman, Mr Paric, and any reasons for believing he was not a party to the false credit applications. His reason was that he believed Mr Paric, "to have a purist role as a salesman to sell vehicles and does not discuss the pricing of any nature whatsoever." · In respect of the filling in of the incorrect applications and sales contracts, he presumed that Ms Benson instructed the salesperson to fill in the contract of sales, and had quoted again that he had taken no steps to find out who filled in the false contract, and no salesperson received any disciplinary action as a result of filling in those false contracts of sales on the basis that they had never been completed, and there was no signature of the customer. He denied that the said contract was a significant document in his investigation. He only believed that the contract showing a sale price at $37,990 contract price was of key significance in the cash-jacking exercise. He did not take action against Mr Paric because the contract was not signed, and he was not actually in a position to identify the author. Evidence of Mr Phillip McNaughton 64 Mr McNaughton was the General Manager of the respondent, and his evidence was supported by an affidavit marked Exhibit 8 in these proceedings. In that affidavit Mr McNaughton denied that the applicant had approached him about becoming a Finance Manager and some other minor issues were denied by him in respect of matters put forward by the applicant. 65 More importantly, he did not recall any conversation about another Finance Manager, Kim Horan cash-jacking a deal raised by Ms Benson. Ms Horan was transferred because he considered her more suited to used car customers. 66 He went on to talk about the serious nature of cash-jacking and in which in his opinion should lead to summary dismissal. Evidence of Barbara Dent 67 The salient points of Ms Dent's evidence began with her affidavit which was marked as an exhibit in these proceedings. In that affidavit she testified that soon after the applicant went on recreation leave (12th August) she rang Steve Elliott, another Finance Manager, and had a conversation to the following effect, "I don't understand a deal Kylie has done, can you come and look at it." After looking at the papers together, they concluded that the deal which they believe the applicant had inputted, were incorrect, and decided to obtain the right information from the customer and conclude the deal. · Copies of the applications in respect of the Abi Rached deal alluded to by Ms Dent were numbers 5030, 5031 and 5045, annexure to her affidavit. · She gave evidence denying that the applicant had said to her, not to put the deal through until her return from leave. · Ms Dent has the passwords for all three yards given her status as relief Finance Manager. · She gave evidence that it was not possible to print off anything from other yards, and it was only possible to print off each yard from the relevant office computer belonging to the Finance Manager. · She further maintained that it was not possible to modify an application from one of the other yards, although expressing some measure of doubt and qualified her answer to say that it is possible perhaps, but only from the yard, and if the relevant Finance Manager knew the password, which changed every month. · She testified that it was necessary to have a number at the top, and then have your password underneath, then went on to say, "there's two different numbers that you have to go in, and then there's another screen that other numbers have to go into." · Ms Dent denied having spoken to the applicant about her outstanding files before she went on leave. She did not recall any conversation prior to the applicant proceeding on leave. · Mr Easton put to Ms Dent, that according to Mr Elliott's affidavit, she had rung him on the 18th August and said, "I have been given a deal to fix, and I can't follow how Kylie has done it. Could you come down, have a look at it for me." She agreed that had occurred. She went on to clarify that Mr Kahn had rung her and asked her to have a look at the deal, saying to her, "there's a deal down there that has to be fixed". · She later clarified that on the basis that there was often contracts needing to be settled so that the customers could get their vehicles. In cross-examination, she acknowledged that she knew that the customer had actually already taken possession of the car, that is Mr Rached. She further clarified that a salesman by the name of Mick Richardson, Manager of the sales department, said that the car had been delivered. That was clarified on the basis that Mr Richardson had rung Mr Kahn, and Mr Kahn had rung Ms Dent. She then clarified further to say that Mr Kahn had said to her, "there's a few, there was a few contracts, whatever contracts are there, that have to be settled and fixed." · Ms Dent gave evidence that in ringing Mr Elliott to seek his assistance, she could not work the situation out, as there were two different contracts. She rang the customer, and a customer came down and went through it. · Ms Dent was taken to pages 12-15 contract documents which she recognised were those which she couldn't work out. · When asked whether she was aware of who prepared the contract at pages 12-15 with the price (cash-jacked) of $42,661, she replied that she did not know. She did not dispute that Mr Jack Paric may have been the salesperson involved with the contract. She did not recall having any conversations with Mr Paric in respect of that contract draft. · Ms Dent knew at the stage when she rang Mr Elliott that there was a problem, because of the figures of the car price and one contract was different to the other, that had previously been put to Esanda. · She acknowledged to Mr Easton that on the 13th August, in seeking to rectify matters and to then obtain finance for Mr Rached through the GE Finance Company, she discovered that Mr Rached was not employed by a building company, but by a bank. She could not understand the paperwork which had earlier suggested that he worked in the building industry. She could not recall seeing the letter which previously advised that Mr Rached was employed by Diamond Bay Constructions and on that point, she was taken to the fact that Mr Charles Chehar was included as a referee for Mr Abi Rached, and after it had been pointed out that on page 77 of NK1, he was shown to be a builder. The point was put to Ms Dent as to whether or not it was not false information therefore provided to the finance company. She did not remember seeing page 35 involved. · Ms Dent was taken to the next group of documents at pages 16 and 17 of NK1, which was a further application made and completed in her hand-writing. · She denied that Mr Kahn had ever talked to her about investigating the alleged cash-jacking. · Ms Dent was told by Mr Elliott that he would be referring the matter to Mr Kahn, although she later remembered Mr Kahn asking her about the contract to be sent up to him, but she could not remember the date. · Ms Dent was unaware that the value of the trade-in had altered from $3,000 to $4,200 as shown in the pages between 75 and 78 of NK1. The $3,000 that was inputted into the system on the first application made to GE at page 76, showing a negative equity in the value of the trade-in vehicle would have been taken from the contract or whatever Mr Elliott had given her for the trade-in. She gave evidence that it was common for more trade-in to be offered and thought the wholesaler had done so here to secure a deal. · She disagreed that Mr Elliott could have accessed that application separate from Ms Dent as he would have had to go to Penrith Jeep yard. She repeated that she did not think that a finance dealer or someone could go to another yard and go through the process of passwords, although confessing she was not positive, but had never tried it. Later, she reaffirmed the need to have the particular yard password. · Ms Dent gave evidence that the prohibition on cash-jacking was part of her training and that she was aware that it was against the law. · In re-examination Ms Dent was taken back by Mr Moir to the fact that she had said in answer to the questions of passwords for the Abacus system, that there were two different passwords which she agreed to, and thence a screen with numbers comes up. After that, there was a requirement to dial to Esanda, and she gave the following evidence, "you have to connect to - when you go into connect into Esanda, you have to dial in and then once your dialled in, you've got to go to another connection and then that screen comes up with a password of numbers and letters, and then once you've connected into that, you have got to go into another screen which comes up with the map of Australia, and then you've got to put in, to put another password, I think it's a user ID, and then you've got to put in your password, and that usually connects you and you go into Esanda." · And she reaffirmed only business managers have access. In respect of the last phase, she testified, "when you are on the map of Australia, it's that - the user ID stays the same, but the password changes." She went on to repeat that that change occurs every month and repeated, "and then in the last day you have got to put in the password that you were using and then the new password twice, and that puts you into the new password." She was taken back over her claim of there being two levels of security codes in cross-examination. · As to why she had not discussed the situation with Mr Paric, the salesman apparently involved in the contract with the cash-jacked price, she suggested that he might have had his day off or something. She gave as her reason for not contacting Mr Paric about the apparent cash-jacking contained in the draft contract, "well, maybe if he wasn't there or he was there, then I don't know, like, if it was wrong, then I just rang Steve Elliott because I felt there was a problem with the deal." · She gave evidence that Mr Rached had come in to sign the relevant documents concerning the amended application organised by herself and Mr Elliott and for the first time met Mr Rached, and also discovered that he was not employed by a building company as originally advised, but by a bank and said, "I couldn't understand". She could not recall how she had been advised that Mr Charles Chehar has put down as the referee to Mr Rached. · Ms Dent gave important evidence that as far as she was concerned she did not reproduce the documents relied upon by the respondent, but that anyone producing them would have had to go through and print from the particular yard the ID numbers and security codes on the Abacus system, but she did not recall reproducing the documents for the respondent, although not directly denying such, in answering, "we can reprint it off anytime, it's always in the system." Further evidence by her was that she could not recall printing off during the litigation of this matter in 2005 any of the contentious documents from the system. She later again suggested she would remember if Mr Kahn had asked her to print such things off for him. 68 Because of the apparent inconsistency between the evidence of Ms Dent and the applicant, the Commission made the unusual decision to allow Ms Dent to be recalled to clarify her evidence in respect of the number of levels of security passes required for entrance into the Abacus system. She was cautioned not to speak to anyone about her evidence in the process, and provided with the copy of the applicant's rebuttal statement, Exhibit 3, dealing specifically with paragraphs 8 to 12 with the so-called security system. 69 Upon the resumption of this matter on the 18th July, Ms Dent gave important evidence as to the applicant's contentions in her rebuttal statement between paragraphs 8 and 12 of Exhibit 3 as follows: Q. You've now read paragraphs 8 to 12 of the affidavit. Well, perhaps if I could just ask you this. Is the description of the Abacus system in paragraphs 8 to 12 and the way in which you would access the system to make credit applications, is that a complete and accurate description in your view? A. No. I don't think so, like, what it's saying there to me, this is saying that it's just using, like an ID initials and that to get into the system, but when you actually get into the system, you've got to log onto the internet and it goes into a site and then you've got to put in, like, two passwords, and each a different yard has its own individual password and its from memory, say a jeep and Mitsubishi is - jeep is PECC and NSWDO1 or something like that, and then its got underneath it another password, DEBBIE 164 or something like that, and then each yard has its own passwords, two passwords, and then once you go through to that, you come up to a next screen, which comes up a map of Australia, and then you put in each different passwords, these, like initials or something. Each has a different one, because I knew all the three. · Ms Dent went on to specify the type of passwords suggested by her, such as, "Penrith City was AL82475 and then it had a password" and "and then it took you into the screen where it came up with all the different options to put in an application or modify an application." (This was at page 13 of the 18th July transcript). · As to whether someone who knew the password could enter and alter the system: A. "They could if they knew the password and if they knew how to use the system, they could go into there, but they would have to know what they were doing to change anything and it never happened since I've been with the company." The Evidence of Mr Elliott 70 Mr Elliott provided the Commission with a written affidavit which was marked Exhibit 10. One of the significant areas of his evidence was in his affidavit were he verified Ms Dent's evidence that she had called him by the telephone on or around the 18th August saying, "I've been given a deal to fix and I can't follow how Kylie has done it. Would you come down and have a look at it for me." 71 Mr Elliott claimed that after perusing the documents and checking the finance applications made to Esanda, "it was apparent that the applicant had made a false application to Esanda." The applications had also indicated the wrong purchase price and wrong details of the trade-in, which were effectively a minus equity. He suggested to Ms Dent that they contact the customer. Ms Dent later rang him and said, "the guy doesn't work for Precise Finishers, he works for the National Australia Bank or NAB." He took the paperwork and rang Mr Rached seeking to clarify who his employer was. Next Mr Elliott completed a finance application with GE Automotive Financial Services, which was approved on the 21st August, 2004. On that day he had a conversation with Mr Kahn, who asked him, "how did the deal go? to which Mr Elliott replied, "I have had it approved." Mr Kahn asked Mr Elliott, "what was the problem with the deal", to which Mr Elliott replied, "nothing, there was nothing wrong with the deal, the deal should have been approved originally, but there was a mix up with information." 72 Significantly, Mr Kahn asked Mr Elliott at that point, "were any of the figures changed to cover anything" to which Mr Elliott said, "yes there were" and to which Mr Kahn answered, "okay. Leave it with me." 73 Other features of Mr Elliott's evidence are best summarised as follows: · Mr Elliott went on to suggest that Mr Kahn held regular finance meetings with the finance managers and at those meetings, attended by the applicant, he remembered Mr Kahn stating, "there is to be no cash-jacking and no changing the use of cars or playing with speedos." · Mr Elliott went on to specify in his affidavit that the applicant had cash-jacked the original contract price of $37,990 to $42,661. Later he repeated that evidence on the basis that he believed the increase was, "to cover a shortfall in the pay-out." · Mr Elliott testified that the system of entering the Abacus system had not changed between the applicant's dismissal and the time of the hearing, and the same steps for getting into the system, remain, and have been in place for four or five years. · He went on to recount those steps as being that the operator must dial into the modem system to secure a line, and then double click on the modem and upon connection, double click on an icon, which would route the operator into the Esanda system. It then asks for the specific user ID and then a password. Next, another window emerges and asks to click either into the Abacus system or a document system and once clicking upon that, it will ask for another ID and password. Thereafter, the system requires some four or five pieces of information as to what sort of application is being made. The latter screen would have some twenty-five different numbers. · Mr Elliott was asked about the map of Australia spoken of in Ms Dent's evidence, but suggested that it is no longer current in the new system, but the actual system remains the same. · Mr Elliott denied knowing the particular password applicable to Penrith City Cars where the applicant was employed as finance manager and insisted that each terminal has a different password. · Further in Mr Elliott's evidence as to the stages for entry into the Abacus system, he testified, "as to the ability to say the password in the password list." He denied however, that there is an ability to preserve the password at the step described at page 4 of his attached document, and there was a requirement to enter the password afresh in those circumstances, along with the user ID. · Mr Elliott gave evidence of the contract at page 12 of NK1, which he said was not persevered with because the document was in fact illegal, on the basis that it was different from the original document and the original finance deal. (This one was dated 13th August, 2004). · In a controversial area of the evidence, Mr Elliott was allowed by the Commission to give evidence as to his heresy knowledge of as to who appeared the offending contracts in NK1. His answer is as follows: "There was - at that stage there was two sales contracts. There was one for the sale of the car, which I remember right, wasn't in Abi Rached's name, which had the car sold at $37,990, with a trade-in involved and what we call a minus equity as part of the trade-in. There was a fresh contract attached to the deal which hasn't been signed off by the manager because the manager said that it was the same car being sold, but there was no longer a trade-in involved on it, and the price of the car had gone up beyond that price and beyond the form for price, which is what we call jacking. The guy who was also there on the day, and I asked the manager, who filled this contract in, and he told me that his salesman, Darren Currie, filled it in." · From that evidence ensued some expressions of concern from Mr Easton as to the fact that the respondent had not dealt with this evidence and should not be allowed to bring the evidence in at this stage, but the Commission allowed it on the basis that there was no prejudice was apparent to the applicant, and that it might only show that someone else was involved other than the applicant in the controversial documents, which included the sales contracts. · Mr Elliott was taken again to the specific paragraphs of the applicant's statement at Exhibit 3 wherein the procedures for entry into the Abacus system of the Esanda finance company were dealt with. In short, he refuted the applicant's contention in paragraph 9 of her statement, as to the ease with which persons might enter the system. He insisted that the user ID's and passwords are a necessary process before putting in the user's initials in the case of the applicant, KLB. · He also disagreed with paragraph 10 of the applicant's statement. He also alluded to the fact that the passwords, one particular password is changed every thirty odd days, and not all the yards are the same. He further gave evidence that while the system can actually show what transactions are taking place in a yard, there is no capacity to make any changes to it. He qualified his evidence to suggest that some uncertainty on his part, but that he had never done that and that it was his understanding that, "you would need that yards password to make changes." · As to paragraph 11 of the applicant's statement, he suggested that section B was wrong. · During Mr Elliott's testimony, Exhibit 11 was tendered as to the process required. · Further in his evidence Mr Elliott dealt with the fact that Mr Kahn had actually rung him in respect of the so-called cash-jacking of the deal with Abi Rached deal. He knew the purpose of Mr Kahn's call and he understood that the sales manager had been a bit worried about some deals that might have been dragging or not approved, and yet the cars had been delivered to the customers. It was his understanding that Barbara Dent had been notified to try and look out for these particular deals, which lead her to ring Mr Elliott about the deals subject to these proceedings, on the basis that she could not follow the deals set out. It was his understanding that Mr Kahn had asked Ms Dent to follow up the matter. He was required to qualify a knowledge of that aspect on the basis that he had simply been told that the sales manager had actually spoken to someone, who in turn approached Ms Dent. · Mr Elliott was taken to page 82 of NK1 and he testified that there appeared to be the customer's signature, Mr Rached, signed in front of Ms Dent on 13th August. The fact that Ms Dent did not approach Mr Elliott for some five days after that date, was dealt with by Mr Elliott on the basis that he assumed that it was the first working day afterwards, but that he did not ask Ms Dent. · It was Mr Elliott's recollection that Mr Kahn had actually rang him as a result of the investigation and what had happened with the deal. He thought he had raised the issue of cash-jacking with Mr Kahn when he spoke to him. He later suggested that he could not recall whether or not he had said to Mr Kahn that he was concerned that cash-jacking had been indulged in. He explained the more oblique reference to a "mix up with information" in talking to Mr Kahn as opposed to a straight out reference to cash-jacking on the basis that, "I'm not - for want of a better word - a dobber, if you like. I wasn't the applicant's boss." He repeated later, "I wasn't going to up information at that stage." · Mr Elliott clarified by what he meant by a mix up of information on the basis that, "some of that information was money and some of the information was employment." Later when taken back to that issue, he claimed to have meant that the property ownership and being employed by a bank and not in the building industry, meant the scoring system would have ensured approval. · Mr Elliott was taken to the fact that the application, page 77 of NK1, which cited Mr Chehar as a referee for Mr Abi Rached, in comparison to the document at page 35, was false, and he admitted that he knew that the document which involved an application to the GE Finance was false. He denied such went to proof of income or that he should be concerned at providing misleading information to the finance company. · He was taken to page 77 and page 82 of NK1 and denied that the handwriting on the left hand column on page 82 was his as someone suggested or that on pages 16 and 17 as evidenced by Ms Dent. He remembers seeing a couple of the contracts involved in NK1, but did not believe he saw the final contract signed by Mr Rached. He testified that he did see the document by way of a contract which showed a price of $42,611 for the motor vehicle, that is the cash-jacked price. In the process, he denied being an investigator with a duty to investigate those documents, but merely looked to close contracts. He was unaware as to whether he saw certain of the contracts, but identified others which he did see, such as page 12, 13, 27 and 28. · When taken by Mr Easton to the fact that the value at trade-in had been increased when seeking approval through the application lodged by him, Mr Elliott suggested that, "cash-jacking is the rising of the purchase price of the vehicle to cover the minus equity" and like Ms Dent denied anything wrong with increasing the trade-in price and denied it was a form of cash-jacking. · On the question of the insurance taken out by Mr Rached, Mr Elliott did not see any significance in the fact that shortfall insurance was included in one but not other contracts, for reasons related to the sequence in which customer approval is received. · In answer to the questions to what conversations he may have had with Mr Kahn between the 21st and the 30th August (applicant's day of dismissal). Mr Elliott could not recall and reinforced that he could not remember. Neither could he remember if he had some discussion with Mr Kahn about the Esanda applications in February, 2005. · On another issue Mr Elliott agreed that it was possible to sight deals on others sites and disagreed that it was possible to print from other sites on the basis that he thought he would have been shown that ability at training, and no-one has ever shown him that it was possible. · On a significant issue, Mr Elliott disclosed that he had Barbara Dent print certain documents off in preparation for his evidence, perhaps in the previous week or so, but after the previous sitting by the Commission on this matter. He could not recall speaking about any aspects of conversations and could not remember any conversation with Ms Dent at the time. He was unaware that Ms Dent had been directed by the Commission not to discuss her evidence with anyone at the end of the last proceedings, but denied that he discussed the system about Esanda with Ms Dent. He did not recall how, in answer to Mr Easton's question, "well, how is it that she magically prints this off for you? How do you do that without discussing the Esanda system in Ms Benson's case." He agreed it was a difficult question and that he did not have a good answer. In answer to the question, "well, can I suggest to you, sir, that you discussed your evidence and Ms Dent's evidence between the last time we were here and today. What do you say to that?" The answer given was, "not that I recall discussing the case, no." · Late in his evidence Mr Elliott included a new aspect not previously mentioned when he said, "Kylie's name was on the top of the application and on speaking to the sales manager, he told us about Kylie making the applications." · Another significant area of Mr Elliott's evidence was as follows: Q. Yes. Alright. For example, page 2 of Exhibit 11, you don't know that if sometime, sometime months before her dismissal, she ticks the little save this password in your password list box, but she doesn't even get that first log in screen? You don't know that do you? A. I would imagine that you wouldn't. And he went on to say that he never had done such a thing and also that it was his understanding that staff were not allowed to do it that way. · Again in that vain, the following exchange took place: Q. If she doesn't need to click on the modem to get on to the Esanda site, it doesn't matter whether there is a button there or not, does it? A. You would need to click on the modem because it is a secured line into Esanda, and you would need to click into that shortcut where you can, because it is a secured line. · In the latter part of his evidence, Mr Elliott was then taken to how difficult or easy it might be to select from twenty options, and agreed that outsiders might be able to make those selections without too much trouble, i.e. once past the security codes. · In re-examination Mr Elliot was asked the difference between the signing of contracts for sale and applications for finance and in his answer, suggested that the sales contract is normally done by a salesperson as opposed to the finance contract, which is only ever done by a finance person, and went on to say that the credit application, was his main concern, and went on again to suggest that the credit application is the foremost document. Final Submissions: 74 Mr Easton began his final submissions by dealing with the threshold question of what he described as the constructive dismissal. There was no doubt, he said, that she was dismissed and dismissed summarily without warnings and the alleged conduct of cash-jacking was described consistently as misconduct, and therefore the onus is clearly upon the respondent as shown by the relevant authorities to establish that misconduct actually occurred. 75 Mr Easton described the investigations that the company carried out as inept, amateurish, and incomplete. It was shown that there was a number of deficiencies in how the respondent jumped to the conclusion that the applicant did the cash-jacking involved in the documentation. 76 Counsel for the applicant alluded to the fact that according to Mr Kahn's evidence, that even though he was one hundred percent certain that Ms Benson was guilty, he still did not move to terminate her services, but said that he would be happy for her to continue if Esanda, the finance company involved, were happy, for her to continue, and the fact that he allowed her full access to the company's computer system throughout the last day of employment, was significant. (i.e. in showing she was hardly regarded as dishonest). 77 Mr Easton made the comparison in the treatment of Mr Paric who was suspected as the salesman involved in writing the crucial contract of sale. It was also harsh that her treatment in comparison to the treatment of Mr Elliott and Ms Dent, who the evidence showed were themselves guilty of misleading the finance company when they finalised the deals left incomplete with the applicant's departure on holidays. 78 Returning to the first issue before the Commission as to whether the applicant resigned, or was constructively dismissed, Mr Easton referred to the leading case of Allison Vs Bega Valley City Council and at page 72 of that decision, where it was quoted, "although the term constructive dismissal is quite commonly used, it can deflect attention from the real enquiry. That enquiry should involve analysis of what occurred, did the employer behave in such a way as to render the employer's conduct, the real and effective initiator of the termination of the contract of employment, and was this so, despite on the face of it, the employee appears to have given his or her resignation". He went on to contend that although a resignation was given, the respondents behaved in such a way as to render the real effective initiator. Strong evidence of the respondent, that cash-jacking was a dismissal offence, only bore out the likelihood that he wanted to terminate the applicant. 79 Mr Easton next referred to Mr Kahn's evidence that he did not want to terminate the applicant, "because I didn't want to come to unfair dismissal". He submitted the resignation was not freely given, it was given under undue pressure, and in response to the respondent's desire to extract a resignation. The applicant's evidence is that Mr Kahn said to her, "I can't have anyone working for me who I can't trust". 80 Next Mr Easton quoted from the transcript of what both the applicant and Mr Kahn recalled being said about the seriousness about the alleged cash-jacking and pointed out Mr Kahn in cross-examination claimed that he had said these things to her to make her realise the seriousness of the matter and because, "I needed the truth from her". He compared that description of events with that in Allison's case where references made to the need to refer matters to the authorities, which Mr Easton compared with when Mr Kahn had said to the applicant, "we'll leave it to Esanda to sort out" and in the context where a finance manager is faced with a threat that a finance company, supplying finance to the motor industry, would in practical turns, be like referring to the authorities as in the Bega Valley case. The applicant's evidence, to what was said to her by Mr Kahn, supports the constructive dismissal claim, where he said to her, "you have the choice of getting fired and receiving your commissions for the month and two weeks in lieu, or to resign and receive your commission and your two weeks in lieu and your two weeks of holidays that you have not used. Oh, and I'm not happy with your performance." 81 Mr Easton went on to mock the evidence of Mr Kahn where he has claimed to have said to the applicant, "Kylie, listen, please don't resign for the sake of it, and I told her that I said, you know, because I am going to refer it to Esanda, and certainly if you're going to go to unfair dismissal, there is no point, because we should go through the proper process if you feel that what I've done is wrong." He referred to Mr Kahn's response to the question from Mr Easton in cross-examination as to "what on earth he meant by that statement", saying that Mr Kahn claimed to have no understanding of the connection between resigning and unfair dismissal, and that he was talking for the sake of talking at that stage, when Mr Kahn had gone on, claiming that he did not know what an unfair dismissal might have to do with her resignation. He suggested that the Commission would have some difficulty in accepting Mr Kahn's claim that they were just words thrown out for the sake of talking at the time. This is particularly difficult to accept in light of his earlier evidence that he did not want to terminate the applicant for fear of an unfair dismissal claim. 82 He again went on to talk about the state of Mr Kahn's evidence in respect of his claim that his reference to allowing things to take a natural course, was just a sweeping statement. These were examples of the absurdity of parts of Mr Kahn's evidence and the lack of candour. He next referred to the promise to pay certain monies if the applicant resigned. In all of the above, the Commission could comfortably conclude that the applicant had effectively been dismissed from her employment. Even on the basis of accepting that the applicant had resigned of her own initiative at the point where she says, "I quit", then the matter still does not bring the claim out of the jurisdiction when it is considered that Mr Kahn had given the applicant between two to five minutes to consider her resignation, and then told her to finish up at six pm. He believed Mr Kahn had, "flip-flopped" when asked for more details of this aspect, where he first claimed that it had happened at the end of the conversation, and then gave different time frames. The Commission would readily be able to conclude that the resignation was given in the heat of the moment and opportunistically taken by the employer to amount to a constructive dismissal. The authorities supporting this proposition is Claric 218 Pty Ltd trading as Sanity Music and Meldrum, reported @1988 volume 91 of the Industrial Reports at page 296, and the relevant passage of that case is quoted as follows: "The Deputy President made no finding on the evidentiary conflict as to whether the applicant's state manager answered the respondent that he was dismissing her or as to whether she was given the option of being dismissed or resigning, rather than resigning of her own initiative. The Deputy President in the context of the prevailing atmosphere on the 17th April, 1997, found considerable disquiet in the appellant's approach which resulted in substantial procedural unfairness to a respondent, such that she became overwhelmed and confused and thereupon, made an irrational decision to resign. In the circumstances in which the resignation was proffered and accepted in an almost opportunistic manner in the heat of the moment, amounted to a constructive dismissal." 83 Mr Easton again reiterated that there was no doubt that the applicant was summarily dismissed for cash-jacking and that the case law is clear that the employer has the legal burden of establishing that the employee was guilty of the misconduct alleged. He referred to the Gartrell White and Pastrycooks case, 35IR @ page 70 and quoted the following: "The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct." 84 He went on to quote from SDA and Jewel Food Stores Case at 22IR @ page 1, where the Full Bench observed: "When considering cases where dishonesty is alleged as the reason for summarily dismissal, the management should only summarily dismiss if it is fully satisfied after careful investigation that the accusation has been made out. In coming to such a conclusion, a prudent and fair employer will take into account where relevant, as part of the circumstances of the case, an employee's youth or inexperience, the nature and effect of any interrogation and any admissions or denials made. We consider this same standard should be applied by Industrial Tribunals when considering reinstatement." 85 Mr Easton went on to suggest that it cannot be suggested in this case that Mr Kahn acted prudently or fairly and went on to quote from another Full Bench authority in Humphries vs Cootamundra Ex-Services and Citizens Memorial Youth Club reported at 128 IR at page 37 where at page 57 it was said: "even in taking into account the lower standard of proof applicable in the civil proceedings, the extent of the deficiencies in the management systems may it near impossible to prove, on the balance of probabilities, who caused the deficiencies and makes it highly unlikely that the appellant could have been found to be the perpetrator of the unusual transactions." 86 That case was interesting in the circumstances at hand where His Honour Deputy President Sams had concluded as quoted by Mr Easton that the employee must have been guilty of the actions but was overturned by the Full Bench. Similarly here, he believed that the employer has come to the conclusion that it just must be Ms Benson and also in this case, there is deficiencies in the employer's management systems. The Full Bench in the Humphries case said that without proper proof and in that case, the terminations were based on circumstantial facts, subsidiary and connected to the main facts and in that event, those facts have to be proven. The authority for that proposition is to be found in Burge vs the New South Wales BHP Steel, reported at 105 IR at page 325 and approved in Humphries and Cootamundra. He quoted as follows: "We have to say the Commission's process in reasoning the available facts, many of which were based on circumstantial evidence, was inconsistent with the evidence as to lead to a reasonable explanation for what had occurred. As was said by Dickson J with whom Latham CJ agreed in Martin and Osborne, if an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact, must be established from which the conclusion follows as a rational influence." In that case it was said that Commissioner Redman fell into error in both fact and law, which required appellant intervention. 87 Mr Easton submitted that on the basis of that shift of onus, the applicant was not required to do anymore than what she included in her first affidavit of what occurred in respect of the termination, and the conversations which occurred therein. On the other hand, the respondent's job was to prove the misconduct and should have put up its evidence and that should have been done by February, 2005, which it did not do. Whilst that might be in one view be simply poor presentation for litigation, on another, its because the respondent did not even know what proof it had. An example of this was Annexure A to Exhibit 6 provided by Mr Kahn, which included attachment A and provided an affidavit from Mr Kahn dated the 13th April, 2005. This indicated that the respondent was at this stage attempting to put its evidence together, which it did not have at the time. 88 In connection with Annexure A of Exhibit 6, Mr Easton pointed out the statements made by Mr Kahn at the conciliation conference on the 14th April on record, where he stated that he only became aware of Annexure A the previous Friday. That is a document which should have been checked out in August, 2004 at the time of the applicant's dismissal and whilst that should have at the very least been checked out in time for the respondent's affidavits which is Exhibit 5 in these proceedings, filed on the 1st March and dated the 28th February, 2005, which shows that the respondent, even by April, 2005, still did not have the proof for the allegation they made against the applicant. He believed they still did not have that evidence. That delay meant that the applicant could not reply to those matters in accordance with the directions for the filing of witness statements, and she was limited to reply to the evidence put in the affidavit dated the 28th February by Mr Kahn, Exhibit 5. 89 It was only upon realising the weakness of their original case that the respondent then attempted to rectify that by further evidence in the form of Exhibits 5,6 and 7 from the respondent, and according to Mr Elliott, it was at that point that the respondent then went to do further investigations and put on its evidence as the case rolled on. He has admitted that all the information which was subsequently got from Mr Elliott and Ms Dent from the witness stand and from Mr Kahn, should have been put to the applicant in cross-examination and by the time cross-examination of the applicant commenced on the 24th March, 2005, the respondent didn't even know half of the matters later arising. He believed that was a fair explanation for what occurred and if a respondent knew the information but failed to put it to Ms Benson, that was a serious matter, but clearly the respondent did not know much of the reasons later revealed. He believed their shortcomings lay squarely on the shoulder of the respondent, not attempting or not properly even attempting to meet the onus, at the times it was required to do so. When that evidence was eventually put to the applicant, it was a matter of credit to her that she answered in a forthright way, even where it appeared adverse to her and even though she was asked uphill and down dale about the systems and log-ins and so on and she readily gave her answers. 90 Mr Easton went on to compare the applicant's conduct in this case with Mr Kahn, the senior representative of the respondent, who made the decision to dismiss the applicant, but who he believed the Commission should have concerns about truthfulness and integrity in his evidence. He submitted that he was a man of no credit and the Commission ought to be concerned about placing any reliance upon it at all. He borrowed from a recent decision of the High Court that said that whenever the truth and Mr Khan's business interests conflicted, the truth would not be the winner. 91 Mr Easton instanced the episode where, when pressed as to why in his version he gestured to the applicant that she should not resign for the sake of resigning if she intended to lodge an unfair dismissal claim, Mr Kahn claimed that he did so for the sake of talking. 92 He insisted that Mr Kahn had lied from the very first occasion when he was in the Commission during conciliation, and where on the first day on the record, there was mention made by Mr Kahn of a Mr Paric, who Mr Kahn thought was the salesperson involved in the transaction involving Mr Rached, although there was no actual evidence given by him on that point. In October, 2004 conciliation proceedings, Mr Kahn was happy to say on record however, that Ms Benson had coerced Mr Paric to fill out the false contract of sale, and said on record that he had no doubts and also said that Mr Paric had been sacked, and offered to make a phone call to verify that fact. It became awkward for Mr Kahn the next day when he was asked about the fate of Mr Paric, when he reverted to saying, "I can't recall" and when there was a break in proceedings, Ms Madden, the solicitor for the applicant, contacted the dealership, and it turned out that Mr Paric was happily employed and on the lot that day. Given the other evidence of Mr Kahn that Mr Paric actually left in December, 2004, his statement to the Commission in October were untruthful, although not under oath. He asked the Commission to find that from its own observations to Mr Kahn in the witness stand that he was evasive and on occasions suddenly lost his memory. 93 In respect of Exhibit 11, which contained the computer screen printouts, which Mr Kahn said he never actually produced, and that Ms Dent had produced them for him because of his difficulty of accessing the system. It was discovered later in evidence, that although Ms Dent had received specific directions from the Commission not to discuss her evidence with anyone prior to being recalled to give further evidence, the transcript of Mr Elliott's evidence was that he actually printed the documents and not Ms Dent. This was confirmed several times in the transcript that it was he who printed the documents off the system, including the statement that he got them off the original application that was sent to Esanda. When the Commissioner himself asked the question as to how Mr Kahn might have done so, when he was not supposed to have the password to enter the system, it was at that point that Mr Kahn suggested that he had got Ms Dent to do the job for him. 94 When Mr Elliott has asked about, when he talked to Ms Dent about her printing the documents off, it fell within the timetable where she had been directed not to speak to anyone about her evidence. At that point, Mr Elliott ceased recalling anything about the matter as to whether he spoken to her about it, or whether it was over the phone, all of which was unbelievable and the Commission ought not to place any reliability on the evidence of Mr Elliott. It is also apparent from this cross-examination that he did not check any of the documents annexed to his statement. 95 Mr Easton submitted that Ms Dent's evidence was likewise not to be relied upon, especially when she was given an unambiguous direction at the end of the first day of her evidence on the 14th April not to discuss her evidence with anyone until she was to be recalled for the next day of the case. It means that Ms Dent went into the system and looked at those matters again, even though the Commission asked her to return the statement of the applicant, and there is no reason for her to do so, except at looking at matters to do with her evidence in these proceedings. There is no other reason. It is highly improper that she even spoke to Mr Elliott in the first place, and Mr Elliott's selected amnesia of what they discussed must reflect adversely on Ms Dent. 96 On another point, Mr Easton pointed out that the evidence in respect of the map of Australia in the sequence of entering the Abacus system discussed by Mr Elliott as no longer being on the system was not put to Ms Dent in her evidence. 97 He submitted that there was no evidence of any cash-jacking really before the Commission, and when the Commission looks at the form 4 Department of Commerce notice on the windscreen of vehicles, the respondent relied on page 124 of NK1 of Exhibit 7 and that form 4 cannot be for the vehicle given to either Mr Demarco or Mr Rached as the document is incomplete. There was no part 2 filled out as agreed by Ms Dent, and on the real form 4, the dealer selling the car is not Penrith Mitsubishi, but another dealership altogether (see page 81 of NK1). The final contract concluded, and the dealer is Penrith Chrysler Jeep Dealer number 18318 at page 21, it is shown that the dealer identified with Penrith Mitsubishi is dealer, licence 18422. It was only after the evidence of Ms Benson and Mr Kahn that the Commission was advised, through other evidence, that a Mr Richardson, the Sales Manager, knew of the transaction, as testified to by Ms Dent. On the evidence of Mr Kahn, only the person such as Mr Richardson has the authority to write a new form 4, with $43,000 price tag. 98 Mr Easton submitted that there was ample time between late July when Mr Demarco was involved and when the deal was finally put through in the name of Mr Rached on the 13th August. There is no evidence of cash-jacking and Mr Kahn says he became aware of cash-jacking by being told so by Mr Elliott and the respondent's investigation was amateurish, crude and incomplete and as well as being incompetent because they can't even get their stories straight between Mr Kahn and Mr Elliott as to how the allegation came up in the first place. Mr Kahn in his affidavit in reply, paragraph 1, says, "during the plaintiff's annual leave, I was informed by another Finance Manager, Mr Steve Elliott, that I should investigate a transaction that the plaintiff had submitted to our Finance Company, Esanda. This transaction was in the name of Abi Rached". According to Mr Elliott's affidavit, he refuted the description of himself as an investigator, and he said that he got called in by Ms Dent on the 18th August, and nothing is done until he talks to Mr Kahn on the 21st August, where he says Mr Kahn asks him, "what was the problem with the deal?", to which Mr Elliott answers, "nothing, the deal should have been approved originally, but there was a mix up with the information". Mr Elliott was adamant that he had not told Mr Kahn that there was any cash-jacking and he said so, because he did not consider himself a dobber and if Mr Elliott's version is correct, it is extraordinary then that Mr Kahn, according to him, asked the question, "what was the problem with the deal?" Someone is being untruthful in this area and less than frank, and that is simply to try and work out how the investigation started. 99 Ms Dent's contribution in this area was that Mr Kahn had asked her to find out about the deal. Ms Dent did become a bit vague in her testimony in this area, as to whether Mr Kahn directly had asked her to check it out or whether Mr Richardson had asked her to check the situation out as the Sales Manager. In this area, Ms Benson's evidence that Mr Demarco and Mr Rached had come to the dealership by a reference from Mr Kahn via Mr Chehar is relevant. It was not possible to cross-examine Mr Kahn in this area given that many of these matters only came to light after his testimony. 100 Mr Easton again alluded to the weakness of the investigation by Mr Kahn, firstly saying that Mr Kahn, by his own admission, doesn't completely understand the Abacus finance system, although relying on documents out of that system. He reminded the Commission that on record in conciliation, Mr Kahn relied upon the fact that the applicant's initials were on the document to say that therefore she did it for all the transactions and that has been proven wrong when the initials of the applicant would naturally appear in the iniating documents and carried forward with all further transactions. 101 In Mr Kahn's second affidavit, Annexure A to that affidavit, makes it clear that he did not know about that particular report when he first came to the Commission. He should have had someone knowing the system to do the investigation and educate him on the aspects that he did not understand such as "date reported". 102 Mr Kahn's evidence of the documents attached to NK1, Exhibit 7, shows the ignorance of what those documents were, first claiming knowledge of those areas that Ms Benson was involved, and those that Mr Elliott was involved in, and he included all those documents attached to Exhibit 7, and thence being taken to them in cross-examination, indicated that he did not recognise some of those documents. He then dissembled to suggest that he only glanced at some of those documents, didn't read them, and didn't focus upon them. The Commission is readily able to conclude that Mr Kahn does not understand some of those documents, and doesn't form any conclusion about some of them. He then reverted when pressed, to claiming that the documents attached to Exhibit 7, were not all the documents he relied upon. Jones & Dunkel inference can be drawn from that fact as such documents cannot be helpful to his case. 103 Mr Easton's next criticism of the investigation was that Mr Kahn could not be certain of the integrity of the documents that he looked at. Mr Easton pointed out that prior to the 21st August, when Ms Dent and Mr Elliott had been working on the files since the thirteenth of that month, with eight days worth of activity and yet Mr Kahn made no attempt to verify the integrity of the documents that were primarily extracted. He referred to the vague evidence of Mr Elliott, who conceded that Mr Kahn had asked him at one stage if there were any documents in the file or something of that style, but Mr Elliott thought that he only might have discussed the matter with Mr Kahn. 104 Mr Easton also referred to the fact that the form 4 of the Department of Commerce and Trading at page 124 was not after all the form that could relate to the car involved in this matter. The form was not complete. By the time of his investigation in late August, 2004, the real form 4 would have been completed. The real form 4, according to Ms Dent's evidence, should show purchasers name and address and trade-in, so it is obvious that form 4 at page 124 of NK1 is not the right one. There were other documents, that were obviously not the right ones either. 105 Mr Kahn's so called investigation was unduly narrow and he doesn't talk to anyone about the investigation. Mr Elliott said he didn't assist Mr Kahn and Ms Dent, likewise, said she didn't assist in the investigation, and there were several people involved in the process, but apparently Mr Kahn took no steps to speak to, the obvious one being Mr Paric, who Mr Kahn said in October conciliation conference on record, that Ms Benson had coerced into writing the contract. By April, in cross-examination he doesn't know who filled in the false contract of sale, and he did not speak to Mr Paric about it. Mr Richardson, the Sales Manager, was obviously involved in the process, who knew of the transaction, and is a man of authority to write a new form 4, but as that evidence arose later, there was not the ability to check with Mr Kahn, about Mr Richardson's involvement. 106 Another salesman, Mr Currie, who might have been spoken to during the investigation, and who was mentioned by Mr Elliott in his evidence as being involved in the sales transaction. 107 Ms Dent is the obvious person to speak to him about what had occurred, because she dealt with the documentation for five days before she even told Mr Elliott, that is, she picked up the file by at least the 13th August, and did a whole bunch of activities which she does on the 13th August. Mr Elliott's evidence was on the 18th August, he got a call from Ms Dent, asking him to look at the transaction. Mr Kahn should have asked Ms Dent what she did with the file for five days, asking when certain documents came in and so on. 108 Mr Easton alluded to what he described as awkward questions given to Mr Elliott about the trade-in price increase and the use of Mr Chehar as a referee, when he ought to have know that Mr Chehar's letter was a lie. Mr Elliott has questions that need to be answered in respect of the transactions, yet he knew with one hundred percent certainty that Ms Benson was guilty of cash-jacking. 109 Mr Easton referred to the fact the ultimate contract was accepted by Mr Kahn as being signed on the 13th August which starts at page 81 of Exhibit 7 of NK1. Ms Dent gave evidence that he signed that document on the 13th August, which is the date that she met the customer. But Mr Kahn doesn't know who prepared that contract because he did not ask anyone. He accepts that the false contract which starts at page 12 of NK1, was prepared either, after or the same day as the final contract, page 81, but goes on to say he does not know who prepared the false contract. This was in complete odds of what he suggested to the Commission on record at the conference in October, 2004. He accepts in cross-examination that the contract was drawn up on or after the 13th August, after Ms Benson had gone on leave. That should have been the focus of his investigation and it should have been fairly upon Ms Dent if it was accepted that it was only her that was involved in the process by the 13th August, or Mr Elliott or someone else. 110 All that is required, Mr Easton said is to show that on the fact of those documents, it looks like someone else had been involved in what the respondent describes as cash-jacking, sufficient for Mr Kahn to investigate the matter more, and he did not, especially given his evidence that upping the trade-in price could constitute cash-jacking. The trade-in price is shown as going up between pages 76 to page 78 of NK1, which eliminates the negativity when the sale went through, when Mr Elliott's evidence that the deal should have gone through in the first place is considered. On that basis, Mr Elliott was asked why would it be that the dealer is going to take a $1200 drop in the overall transaction by increasing the customer's trade-in a month after the car had been taken delivery of by the customer, this makes no sense he said. If Mr Elliott's statement is correct, what reason would there have been for the dealer to decide to increase the trade-in price. The correct form 4 should have revealed the trade-in price. 111 Mr Easton said it was not the task of the Commission to decide whether Mr Elliott or Ms Dent was guilty of cash-jacking, which makes Mr Kahn's evidence deficient, and his proper investigation may have for instance have revealed that Mr Chehar is put forward as a referee and on the basis of misleading the finance company, which was a letter from Mr Chehar stating that Mr Rached was employed by him. They had an obligation to tell the finance company that the person put down as a referee had already provided the company with a false statement. This should be considered in the light of Mr Kahn's evidence which was that he would be very concerned about the finance manager being prepared to mislead the finance company. Mr Kahn should have then in a proper investigation, understood the issue of the Chehar reference. 112 Mr Easton then moved on to another area, that is the respondent's computer system known as Abacus, stating that another dispute over this area of the evidence was whether or not there was one log in or two, whether there is one step that you have to go through or whether there are two. Ms Dent and Mr Elliott suggested that there were two step process. The first of which is to go into the internet, and the applicant claims that she never had to do this. 113 In respect of Mr Elliott's Exhibit 11 as to the steps taken, he claimed that the computer screen described by him was obviously not before Ms Benson in August, 2004. He alluded to the network password at page 2 of that document where there was reference to the words, "save this password in your password list". Mr Elliott's evidence was that that process can be effected by a permanent entry to skip that section by ticking that particular box, and the log in never come up for Ms Benson. Regardless of this, her evidence was in contradiction to Ms Dent and Mr Elliott, disputing how many passwords were needed. Mr Easton alluded to the answer of the applicant to Mr Moir at page 38 of transcript to the question, "Ms Benson, wouldn't you be required when making an application for finance to Esanda through the Abacus system, wouldn't you be required as a very first step to enter a password in order to access or make a link to Esanda?" Her answer was, "No, it's just an internet connection, you double click on it and it will connect". A further question, "when it connected though through, you would be required to enter a password for Esanda as a very first step?". Her answer was, "No, just the log on and your password." The applicant's evidence was clear on that, compared with Mr Elliott's, who gave evidence that it might be the case, that if you ticked on that particular box, then the requirement for further entry of passwords disappears. He said so on the basis that he had never actually ticked the box himself. 114 The respondent's version of events is that there are four things that you need to know to enter the system, two bits of information of each step, but also on the respondent's evidence, only one piece of that information ever changes. So on the Elliott and Dent evidence, that the first step in the process, you log in with VCECNSWDO1 and DEBBIE164 do not change and Ms Dent's evidence was that DEBBIE164 or 184 had been in place as long as she could remember. When going to the second gate, the user ID does not change, it was only the last one that changes and merely changes from password 6 to password 7, and a month later perhaps password 8. Mr Easton also pointed out that there was no evidence before the Commission that someone from another yard can access a transaction at the Chrysler Jeep yard and change it. He pointed to Mr Kahn's evidence to the question, "and you didn't have any difficulty getting access to the computer system, did you?" to which Mr Kahn answered, "No" and to the further question, "or getting access to what entries she might have made in the computer system in relation to Abi Rached's deal did you?". The answer given by Mr Kahn, "well, I don't know, you've got, you've just told me that anyone could have done it, but it was her entry, I saw it". Mr Kahn then changed his testimony to say that he did not have access and used one of the business manager to log on for him. When asked then as to who he had to access the system for him, Mr Kahn replied, "I don't recall, I seriously don't recall", but when pressed suggested that it was either Ms Dent or Mr Elliott. Neither did he recall where he accessed the computer system from, then ventured, "totally don't recall. I think it was Chrysler - Jeep." He drew attention to the inconsistency of Mr Kahn's response that if the Commission accepts that no-one can access the transaction from anywhere other than the Chrysler Jeeps yard, why would Mr Kahn not have given that answer. 115 In a similar vain, Mr Kahn said in relation to the documents he obtained on the 18th February, 2005, first said that that was the information that he put together for this litigation, but when pressed, claimed that someone else often downloaded the system for him, either Ms Dent or Mr Elliott. Ms Dent did not recall the matter and if they could have only been downloaded from the Chrysler Jeep yard, Mr Elliott couldn't have done it either. Also, when Mr Elliott was questioned of the documents attached to his affidavit, and when he was asked as to whether he checked those documents, and what date they were printed etc., he admitted that he did not really check the documents and then went on to suggest that he had scanned them, but the implications were obvious that he did not generate the documents himself. Given that Mr Elliott was overseas at the time in October, 2004, when there was documents produced for the Commission's benefit, that person which Mr Kahn described as an accountant, extracted the computer records from the system, and faxed it to the Commission at that time. That document was similar to the Esanda printout at page 44 of NK1. Mr Easton believed that that meant that some accountant also had access to the system. 116 Mr Elliott's evidence showed that if a person knew the surname of a finance applicant, or knew the reference number of the application, when you navigate through the Esanda system, you could look at the details. 117 Mr Easton referred to Mr Elliott's evidence that he assumed that it was not possible to enter an existing finance application after being able to navigate through the Esanda system and change the record. Mr Elliott's evidence was that he assumed he could not do it, because he had not been trained to do so. Ms Dent gave similar evidence that she had never tried, so there was nobody giving evidence that you cannot alter the record. Ms Benson said that you can, but Mr Kahn is still one hundred percent sure that Ms Benson is guilty of cash-jacking. 118 The evidence of the respondent is misleading, incompetent and incomplete when comparing attachment A to Exhibit 6, which is the printout that the respondent only learned about in April, 2005, during the course of these proceedings, and when they are compared with documents, transaction numbers 5030, 5131 and 5045, they are inconsistent. Mr Kahn could not explain that inconsistency. 5030 showed it had been delayed and the second page of annexure A to Exhibit 7 shows the transaction 5030 being declined on the 27th July. That must be contrasted with what the system said on the 18th February, 2005, which showed the application as being, "delayed" so it cannot have been declined on the 27th July, 2004. Mr Kahn could not explain that, yet is still one hundred percent certain she was guilty of cash-jacking. Moreover, Mr Easton contended that Mr Kahn did not know about that report in August, 2004 at the time the applicant was dismissed. 119 The dealings in Mr Rached's employment and property suggest that someone other than Ms Benson processed the last transaction 5045. According to her evidence, she never knew that Mr Rached's job was at the National Australia Bank, and that seems consistent with Mr Elliott's evidence which shows that it was Ms Dent who informed him on the 19th August, after the applicant's departure on annual leave, that Mr Rached did not work for Precise Finishers, but for the NAB. The paperwork he suggested showed that he was not an employee of NAB. Pages 16 and 17 of NK1 of Exhibit 17 were commented upon by Ms Benson and Ms Dent during the evidence, showing a number of entries on those pages which they believed to be Mr Elliott's handwriting, and he did not deny that. This was information corrected by Ms Dent and Mr Elliott, which was information about Mr Rached's property and his mortgage and so on. Ms Benson's evidence was that she did not know that Mr Rached had any property at all. The paperwork at 5045 and at page 71 of NK1 shows that properties worth $350,000 with mortgages of $150,000 and rental income of $1,000 at page 69. Whoever did transaction 5045, if you accept that transaction was ever put to Esanda because at page 69 it has shown as being withdrawn, but if you accept it was, it could not have been Ms Benson, because it contained information she never knew. 120 Accepting Mr Kahn's assumption of the sequence of a contract of sale papers, document 5045 was drafted on the 13th August or sometime after. The serial numbers for the final contract which starts at page 81 of NK1 is 0257055 and then the serial number for the contract of sale which shows that the offending sale price at $42,661 starting at page 12 of NK1 has a serial number of 0257056, one more than the previous one. The Commission can be comfortably satisfied, whoever prepared the false contract of sale, the price of $42,000 did it on or after the 14th August, which is of course after Ms Benson has gone on holidays. 121 The Commission need only find that this matter was a deficiency in the employer's investigation and that the respondent has not shifted its onus. The shifting style of Mr Kahn's evidence was apparent where he first insisted that he did not know very much about the Esanda system, and that during his investigations, someone else logged in, into the computer. According to Mr Elliott's evidence, if you know the application number and the surname, then a person could get into the system and bring up a transaction. There is no need to be a Finance Manager to do that. It is much easier to get information from the system, as reasonly put by Mr Elliott. 122 Mr Easton next moved to another phase of his submissions in pointing out that Mr Kahn's evidence was that he had no trouble with Ms Benson's work and that this was a one off occasion, and given that matter, the basis upon the applicant being terminated was harsh, it was flawed and it was improper. He referred to Section 88 (B) and quoted from the Act in that respect. The allegation after five days of hearing in this Commission has not been proven. 123 On procedural fairness, he claimed that Mr Kahn did not inform the applicant of the nature of the meeting, or that her responses and conduct at the meeting could result in her termination. In fact, the opposite occurred with Mr Kahn maintaining the element of surprise, which is why he said he did not speak to her about the nature of the meeting. The unfairness in that approach, and by that time of the meeting, he has formed the one hundred percent view that she's guilty of cash-jacking and at page 29 of the transcript he says that only showed her six bits of paper and two contracts of sale. At line 17 of that transcript he said that he did not hand out a bundle of papers. Ms Benson said the documents discussed were in her pending tray, (contrary to Mr Kahn) and then at that stage of the evidence, Mr Kahn suggests that he had all of that material. Mr Easton raised the question of the security of those documents given that six months is passed after the event, but nonetheless there is some conflict in that evidence. There was no opportunity for the applicant to respond, no procedural fairness, no opportunity to provide with a weapon, and there is some dispute later as to what was said in this, in what Mr Easton described as an ambush, and resulting in a constructive dismissal of the applicant. He contrasted the treatment of Mr Paric, who continued in employment until at least December, yet back in October during the conciliation conference, the respondent insisted that Mr Paric had colluded with Ms Benson to engineer the cash-jacking and this would be so if you accepted Mr Paric wrote out the false contract of sale. Mr Easton suggested to the Commission that it should compare the treatment of Ms Dent and Mr Elliott, who he believed carried out improper transactions in relations to Mr Rached by inflating the trade-in price and what appears to be nominating a referee to a finance company, known to have falsely written a document saying that the particular applicant for finance was employed by him at an earlier stage, the treatment of Ms Benson is harsh by comparison. If Mr Kahn is genuine in saying that he did not wish to terminate the applicant, means that his decision to constructively dismiss the applicant was harsh. 124 Mr Easton alluded to the fact that Ms Dent by her evidence, came across the material on the 12th or 13th August and formed the view that the cash-jacking had taken place, but did not tell anyone. She did not ring Mr Kahn. It can be assumed she happily worked on the file for another five days before she told Mr Elliott. Mr Easton believed that, had the conduct of Ms Benson been so offensive as alleged, it would have been readily apparent to Ms Dent and she should have made immediate contact with the manager. Instead, she contacted Mr Elliott, who is just another Finance Manager, who likewise, does nothing for a period of time, that is a further five days and does transactions on behalf of the customer involved. In accordance with his evidence, he is not a "dobber" so he doesn't actually tell Mr Kahn anything about the cash-jacking and his evidence was that all he told Mr Kahn was that the deal should have been approved originally, but there was a mix-up with the information. Again, if the conduct is so offensive, it would have been readily apparent to Mr Elliott, and he should have been on the phone immediately to Mr Kahn. It is a mystery as to why no-one rang Ms Benson at this stage of their investigation. If there was some confusion, she should have been contacted. 125 Mr Easton again referred to the authority of precedent of Cootamundra Ex-Serviceman's Club, 128 IR at page 53, that when dealing with misconduct, it is unfair that the allegation is actually false. 126 Mr Easton concluded his submissions on the basis that if the Commission decides to award the applicant maximum compensation that is appropriate, and in that event he foreshadowed an application for costs against the respondent. Respondent's submissions 127 Mr Moir began his submissions by saying that there is no dismissal of the applicant's employment at the initiative of the respondent. The applicant elected to resign when confronted by her employer with improper credit applications submitted to the finance company. 128 There were a number of false credit applications submitted to Esanda which involved the practice of cash-jacking. The documentary evidence alone is sufficient to satisfy the Commission that there were a number of false applications prepared and then submitted during July and August, 2004. 129 It is beyond dispute that the practice of cash-jacking can result in serious consequences to the employer's business. 130 Mr Moir submitted that the issue in dispute was whether or not the applicant prepared and submitted the false credit applications during July and August, 2004, thereby constituting serious misconduct and the related issues whether or not the resignations submitted by the applicant was genuine. 131 Whilst there was no witness, and the evidence surrounding the applicant's behaviour is circumstantial such as her initials which appeared in the documents, but they are indicative, but it is accepted by the respondent not conclusive. He submitted that it was a circumstantial case, but nonetheless, a number of facts which Mr Moir called strands of evidence, pointing to the rational conclusion that the applicant prepared and submitted the false applications. 132 Mr Moir highlighted four key factors, the first of which was knowledge and capacity; the second, motive; the third, opportunity and the fourth, is the lack of plausible alternative, particularly in light of the security features of the Abacus computer system. 133 As to knowledge and capacity, the respondent submits that the applicant had the expertise to prepare and submit the false credit applications and such an employee involved needs to be able to navigate around the sophisticated computer system. The other employees with that knowledge were the other Finance Managers located in other yards of the respondent's business and whilst the respondent accepts that other employees had that knowledge and capacity, she (Ms Benson) was clearly the leading candidate when it was taken into account because it was a transaction concerning her yard and that she was located on the dates of applications. 134 As to motive, it is only the applicant who stood to gain financially from the relevant transactions, although some other employees have that knowledge and capacity. 135 As to opportunity, again it was only the applicant who had the opportunity to prepare and submit the false application prior to taking leave, evidenced by the fact that she was the only Finance Manager working at the Chrysler Jeep yard on the two dates when the false applications were submitted. 136 The fourth factor, the lack of alternative plausible explanation has to be considered in the light of the security features of the Abacus system, it becomes abundantly clear that the only real candidate for having submitting the false applications is one of two people, either the applicant or Ms Dent and the suggestion that Ms Dent is responsible is just not plausible, particularly when motive is taken into account. Ms Dent had no financial motive, or indeed any other plausible motive for engaging in these transactions. The applicant and her representatives attempt to throw as much possible confusion upon the paperwork and the computer system has backfired. 137 The applicant has been caught out attempting to mislead the Commission about the nature of the computer system and its security features, which, as accepted by the Commission throughout proceedings, is a critical issue, and that evidence was an incomplete account of the nature of the system and its security features and it was exposed as incomplete when the Commission heard evidence from a number of witnesses, namely Ms Dent and Mr Elliott and their evidence confirmed or corroborated by the documentary evidence in the form of Exhibit 11. 138 That then leaves the question of resignation and in Mr Moir's submission, the fact that the applicant resigned on the 30th August, 2004 is entirely consistent with the acknowledgement of misconduct. The applicant has put forward no other rational explanations for the fact that false credit applications were submitted using her own log-in details, apart from the suggestion that some other unidentified person has tampered with the computer system. There was no reasonable explanation as to why another person might submit the false application and this other unknown person did not stand to gain financially from the transaction. 139 Mr Moir submitted that this case based upon circumstantial evidence is not unlike other cases the Commission has handled in the past involving allegations of theft and cash registry irregularities. 140 Mr Moir referred to the Humphries vs Cootamundra Ex-Serviceman's Club and also the recent decision of the Commission as presently constituted in Ryan vs Woy Woy District Rugby League Club, which he distinguished on the basis that this is different from those cases. 141 Whereas in the Cootamundra and Woy Woy cases, there was a reasonable alternative hypothesis consistent with the innocence of the applicant. There was no such reasonable alternative hypothesis in this case. Only the applicant stood to gain and had the opportunity repeated Mr Moir. 142 The respondent allowed the applicant to resign as an act of grace, preserving her full entitlements, including her own commission payments, preserving her name and accepting her resignation as a consequence. The only reason the applicant's name is an issue is because she elected through her application to challenge the resignation. 143 Mr Moir also provided the Commission with extracts from authorities which he believed were relevant to the point. Those authorities deal with the question of the onus of proof, the statutory provisions in the general sense, and the functions of the Commission in arbitrating applications of this kind, and finally whether or not the applicant was constructively dismissed. 144 In respect of the onus of proof, the burden of proof rests with the applicant to establish the termination was the initiative of the employer and Mr Moir informed the Commission that the authorities he referred to were quite old in support of that opposition. The employer however, does accept that where dishonesty is alleged as a reason for summary dismissal, the evidentiary burden shifts to the employer, as borne out by the Pastrycooks case referred to by Mr Easton. However, in this case the respondent strongly maintains there was no dismissal at the initiative of the employer, and certainly no summary dismissal and accordingly, the onus still rests with the applicant to establish the termination instigated by the employer. The onus borne by the applicant is reinforced where there is a prima facie evidence of resignation, such as in the form of resignation letter. Franklins and Webb is the authority, highlighting that where the evidentiary onus shifts to the employer in a case of alleged misconduct, the employer is entitled to take into account any interviews or discussions held with the employee concerned in alleged misconduct and indeed, any admissions made thereto. Mr Moir's claim that the evidence of the conversation between Mr Kahn and Ms Benson on the 30th August, 2004, was that the respondent says that a very clear admission was made by the applicant as to her misconduct, which the Commission is entitled to take into account, even if the evidentiary onus shifts. In addition, the standard of proof remains a civil standard, so that where it was more likely than not that the applicant engaged in misconduct, leading to her resignation, that test is sufficient, and is not a case of proof beyond reasonable doubt. It is a case of what is more probable, was more likely on the evidence. He repeated that the Commission is entitled to act on the basis of circumstantial evidence. 145 Mr Moir took the Commission to an extract of the publication "Cross On Evidence", at paragraph 1110 dealing with the analogies of circumstantial evidence, where it speaks of sufficient strands of evidence as being the links in a chain and contending that the whole taken together may create a conclusion of guilt, "with as much certainty as human affairs can require or admit of". The principle holds true in civil cases as well, so Mr Moir believed the strands spoken of were as he mentioned in this case, motive, opportunity, capacity and lack of plausible alternative. All of that should lead the Commission to the rational conclusion that the applicant engages in misconduct and then when faced with that misconduct, freely chose to resign. 146 Next, Mr Moir turned to the decision of Burge and BHP referred to by Mr Easton, wherein it was said that the facts subsidiary or connected with the main fact, must be established from which the conclusion follows at a rational inference. The main facts in this case, said Mr Moir, was twofold. Firstly, the applicant engaged in misconduct and secondly, she resigned. There has been evidence about capacity, motive, opportunity which leads to the rational inference that the applicant engaged in misconduct, and conversely, the applicant has not been able to maintain a plausible hypothesis consistent with her innocence. 147 It was established, even through the applicant's evidence, that cash-jacking represented a dupe being effected upon the finance company and that cash-jacking is misleading or deceptive conduct by a dealer towards a finance company. The respondent's business depends upon the goodwill of the finance company. The evidence of Mr McNaughton was that everyone was aware that cash-jacking was a sackable offence. Ms Dent went even further, and said that as far as she understood, that you could even go to jail. 148 Mr Moir then turned to the issue of the reliability of the applicant's evidence as opposed to the respondent. He maintained that there was several areas where the applicant attempted to mislead the Commission to bolster her case, for example, the description of the computer system and its log-in procedures. In addition, there were a number of other inconsistencies. The issue of the computer system was the most important. The sheer number of those inconsistencies should lead to a position where the Commission would find it impossible to accept the applicant's evidence over that of the respondent. 149 Mr Moir submitted that the respondent's witnesses, Mr Kahn, Ms Dent, Mr McNaughton and Mr Elliott gave evidence in an open and candid manner, without any rancour towards the applicant. The most glaring example where the applicant attempted to mislead the Commission, he repeated, was about the entry and use of the Abacus computer system in an attempt to construct a theory that some other unidentified person may have tampered with the system and thereby entrapped her. 150 The applicant attempted to establish that the system was fairly simple and straightforward, and that anyone could log into it and access a current application. Anyone can submit a credit application or modify a credit application. However, that evidence was contradicted by Ms Dent and Mr Elliott, supported by the documentary evidence which was presented to the proceedings. Ms Dent testified that the second level of passwords were peculiar to individual yards, in other words, you cannot use passwords to a different yard for this second level. Mr Elliott corroborated that sequence in procedure and the contents of Exhibit 11 also confirmed this. Mr Elliott gave evidence of using the Abacus system for four to five years. 151 Ms Dent gave evidence that there were a number of steps to go through in order to get into the system and then to navigate it. First you have to dial into the Esanda Website. He referred the Commission to Exhibit 11, where a number of icons appear on the computer screen. To suggest that someone not familiar with the Abacus system could look at that screen and work out which icon is ridiculous. Even if they could pass that hurdle, they then have to enter the user name and password for the network, and the respondent accepts that the password for this second step may be saved in the password list, but there is a second level of password that must be gone through and it's this second level which is omitted from the applicant's evidence without adequate explanation. 152 Mr Moir referred to the fact that the Commission was prepared to provide an opportunity for the applicant to be recalled to offer an explanation, but she elected not to be recalled and clearly an adverse inference must be drawn from that failure by the applicant. 153 Mr Moir suggested that there were five steps involved, but step four was critical to these proceedings, which was an individual password for each individual yard as shown by the evidence of Ms Dent, and only the financier working in the individual yard knew what that password was, with one exception, and that being Ms Dent, who was the relief officer for all yards. She gave evidence of how she kept those passwords secure. The Commission is entitled to conclude on the evidence, that only two persons had the password to enter the Esanda System at the Chrysler Jeep yard, being Ms Dent and the applicant. Mr Elliott gave evidence that he did not know the password for the Chrysler Jeep yard. Mr Elliott's evidence even suggested that there was a third level, but the respondent does not rely upon that. Exhibit 11 supports this proposition. The first level shown therein, is the use of name and password and at page 5 of the Exhibit, second level as shown as the user name and password to be entered in order to proceed into the Esanda Finance system and the page 5 password is peculiar to each individual yard. 154 The applicant's decision not to accept an invitation to give further evidence means that she leaves the original evidence, which is inconsistent with that of Ms Dent and Mr Elliott, and the evidence the Commission will find that the system is much more complex or sophisticated than the applicant was attempting to suggest. She also suggested that each of the yards shared passwords, and they were distributed willy nilly amongst the yards, enabling anyone to tamper with the system and also gave evidence that all three yards were interconnected, so that the filing system is accessible to anyone. Those propositions were flatly contradicted by the evidence of Mr Elliott and Ms Dent. Ms Dent quite spontaneously gave evidence of how the second level password had to be changed every four to six weeks because the system prompted you to change it. Ms Dent also said that the applicant would tell her the new password once it was changed every four to six weeks and as far as she was aware, only herself and the applicant knew those passwords for the Chrysler Jeep yard. The applicant was responsible for security of that password and under further cross-examination by Mr Easton, Ms Dent confirmed that the second level password is different for each yard, Ms Dent was firm that you cannot access applications dealing with the Chrysler Jeep yard from another yard. That evidence was corroborated by Mr Elliott. Part of his description of the system was the need to enter initials, that is the user initials, and in this case the applicants initials were clearly KLB which was set out in the applications to the finance company. 155 Mr Moir then set out for the Commission, what he regarded as instances of inconsistent evidence given by the applicant, the first of which was the issue of Mr Rached's tax assessment notice. She originally gave evidence that she had never received a tax assessment notice for Mr Rached prior to the 4th August when proceeding on leave. Her words were, "I'm one hundred percent certain that I didn't received a tax assessment notice for Mr Abi Rached" and that therefore she did not send any such notice to the finance company. However, when the applicant was taken to documents set out in Exhibit 7, and some of those documents bought to her attention, they showed that the applicant Ms Benson was in fact sent a tax assessment notice from Mr Rached from the 4th August, this was at page 95 of NK1. The notice was dated the 2nd August and had an inscription at the top, "Attention Kylie". She was not able to explain that inconsistency satisfactorily. 156 The applicant was taken to another document at page 23 of NK1 of Exhibit 7 dated the 9th August from the finance company, GE Automotive, which was five days after the applicant received the tax assessment notice. The applicant was taken to that document on the basis that she had given evidence that she did not submit any notice to GE Finance and asked the question, why then was the finance company requesting her to submit such a document. Again, the applicant was unable to explain that inconsistency. 157 A further example of the applicant's inconsistencies in her evidence was at page 79 of NK1 of Exhibit 7, which was a fax to the representative of the finance company, Christine Antoon, from the applicant, and in the applicant's handwriting, "copy of tax assessment and water rates". She was asked, "did you say you didn't have such a notice available?" The answer given by the applicant, "No, as I said, the gentleman could only supply a letter of employment" and when it was pointed out that there was advice given to the applicant by GE Automotive, the applicant then claimed that it was not a tax assessment notice sent through the finance company to Ms Antoon, but merely a copy of a rates notice and went on to insist that at that time she did not have a rate notice. The applicant's further explanation - at the document shown on page 79 of Exhibit 7, that she'd made a boo-boo in describing the matter as a tax assessment notice was not believable, especially as there was no sign of the tax assessment notice in the documents which was Exhibit 7, whereas at page 95, there is the actual tax assessment notice of Mr Rached. The applicant's explanation, that she had, "one hundred miles of things going through your head and I had tax assessment on the brain because I just spoken to the customer, I accidentally did write it". This conflicts with the applicant's more general evidence, that she was not working on the Abi Rached deal during August and that she did not proceed beyond the first page of the Rached application from the 27th July, and yet there is clear evidence, still continued to process the application. In addition, there was further correspondence from the finance company requesting the tax assessment notice and other documents together, and on the 12th August, was the fax from the applicant indicting, she was processing documents to the finance company. So that's the applicant's evidence, she was not able to take further action beyond the 27th July, because of incomplete details is not to be believed. Ms Antoon from the GE Finance and the customer, Rached, sent correspondence marked to the applicant's attention after that date. Mr Moir submitted then that the applicant had her hand, "all over the deal, not only prior to the 27th July, but beyond that date, and actively sought to put the application through to get finance." 158 A further issue regarding the applicant's credit, Mr Moir pointed to the accusation from the applicant that one Kim Horan, another Finance Manager, had cash jacked a vehicle to obtain finance. That allegation was refuted by both Mr Kahn and Mr McNaughton, who each gave evidence of the actual circumstances surrounding Ms Horan's relocation in February, 2004. She was transferred to another yard because of the way she was dealing with the new car customers. Mr Moir suggested that the accusation of the applicant that Ms Horan had cash-jacked the car by an amount of $30,000 was a ridiculous suggestion. Given though that the applicant herself appeared to be very shaky in her recollection and that the incident happened in February, 2003, the Commission should have some concerns about the applicant's recollection of events. Moreover, the applicant had no proof to support the allegations. Neither had she spoken directly to Ms Horan and was not a party to any discussions. 159 Mr Moir referred to the applicant's claims in respect of her salary level, which again were denied by Mr Kahn, and it was incredible that she accepted the alleged lower rate of pay over that period of time. 160 Another issue of credit, was the applicant's denial that cash-jacking was ever mentioned at finance team meetings and that was refuted according to Mr Moir's recollection by Mr Kahn and Mr Elliott. He submitted that the Commission should prefer the respondent's evidence in that regard. 161 In respect of the applicant's claim that she approached Mr McNaughton about becoming a Finance Manager at the Mitsubishi yard, this was denied by Mr McNaughton as an exaggerated account of the conversation, and given that he had no motive to fabricate his evidence and given his twenty-three years association with the dealership, his evidence was to be preferred over the applicants. 162 In yet another matter on credit, Mr Moir reminded the Commission of the difference between the applicant and Ms Dent over the issue of whether or not she had advised Ms Dent not to submit the Abi Rached deal before she went on leave. The applicant claimed that she raised the point with Mr Kahn on the day of her dismissal. Mr Kahn denied that the point was ever raised with the applicant, and also Ms Dent denied that the applicant had ever told her. The latter is unsurprising given that Ms Dent did not know about the deal until the applicant had gone away on leave. 163 Mr Moir turned to then deal with the attacks by Mr Easton upon the credibility of the respondent witnesses. First dealing with the point that Mr Elliott had discussed his evidence with Ms Dent and a similar attack launched upon Ms Dent. In fact, Mr Elliott was quite clear in his evidence that he didn't discuss any evidence with Ms Dent when approaching her about printing off a document. When asked a more general question about whether he had discussed the case with Ms Dent, he could not recall discussing the case. This is not a ground for attacking the credibility of Mr Elliott or Ms Dent. In any event, the substance of their evidence goes to the computer system and not capable of being amended through any discussions and that procedure of entry into and security features of the Abacus system is verified by Exhibit 11, and although printed off this year, the contents of the exhibit reflect the prior procedure over a number of years. 164 Mr Moir then went to a specific issue raised by Mr Easton that there was no real evidence of cash-jacking having taken place and referred to application numbers 5030, 5031 and 5045, which are at pages 58-62, 63-67 and 69-73 of Exhibit 7, NK1. These are the objective documentary evidence that falsified applications were submitted to Esanda Finance. Mr Easton suggestion that the form 4 was altered and is not authentic as shown at the last page of NK1, goes nowhere in suggesting a person such as Mr Richardson, the Sales Manager, may have been involved in changing the form 4 and as a result, there was no cash-jacking. That proposition was not put to Mr Kahn or any other of the respondent's witnesses, and even if that, while a theory, that the form 4 may have been changed, it does not alter the fact that three false applications were submitted on the 27th July and the 11th August, 2004. 165 A further document which provides confirmation of the dates when applications were submitted to Esanda, was at Annexure A of Exhibit 6, which was a document discovered by Ms Horan more recently. Mr Moir first dealt with Mr Easton's claim that if Mr Kahn did not know that that document existed back in August, 2004, how could he have known who was responsible for the transactions and the suggestion arising from that, about the inadequacy of Mr Kahn's investigation is just simply not the case. All that that document did was to provide additional confirmation about the dates. It does not detract from the dates which appear from the application. 166 To the suggestion of Mr Easton that another officer with a knowledge of the computer codes for entry, Ms Horan, Mr Elliott or Ms Dent, in rummaging through the documents in August, 2004, might have submitted the false applications, Mr Moir suggested that, that happened well after the applicant's applications were made on the 27th July and 11th August in preparation for these proceedings, and whilst it might be possible for those officers to access the documentation after the applications have been submitted, Mr Moir believed that the evidence from Ms Dent and Mr Elliott showed that they cannot be accessed, that is an incomplete application on the Esanda system, unless you are actually at the yard and you have the password for that individual yard. 167 In respect of a document provided by Ms Horan attached to Exhibit 6, as Annexure A, Mr Moir distinguished the fact that Ms Horan was able to access that document on the basis that a document described as a summary document as Annexure A can be readily accessed after the applications are submitted, which is an entirely different kettle of fish from the applications themselves about which Mr Elliott gave evidence. 168 The issue for the Commission is whether anyone else as a reasonable alternative had access to the incomplete applications provided by the applicant and then submitted them with false prices. That document confirmed again, the dates when the applications were submitted in this summary report. Other evidence shows that she was the only Finance Manager present at the Chrysler Jeep yard on those particular dates, and the applicant acknowledged that Ms Dent was not present on the 27th July. The other evidence shows you cannot do that from another yard. When that is combined with the fact that the applicant was the only one who stood to gain financially. The applicant appears to have had her hands all over the transaction until the 11th August, despite trying to pretend otherwise. 169 Mr Moir suggested that to combine these facts with the applicant's attempt to suggest that the computer system was quite simple and could be readily tampered with, shown to be incorrect, combined with the applicant's own admission was preparing the application up to and including the 27th July. This all points to rational conclusion, she was the person responsible for all three applications. 170 Mr Moir next turned to the question of resignation by the applicant. First saying that the Commission should prefer the evidence of Mr Kahn of what occurred on the 30th August, 2004. Mr Kahn formed the view that the applicant was responsible for the transactions after investigating, and whilst she initially denied that she had cash-jacked the deal, after Mr Kahn advised her that the matter would be referred to the finance company, it was at that point that the applicant admitted her conduct. Mr Kahn's evidence was that he tested the applicant to ensure that she was genuinely resigning. It is wrong to suggest the resignation was accepted in an opportunistic manner and Mr Kahn did not have any desire to extract a resignation from her, given his evidence that she was a good employee. Mr Moir suggested that Mr Kahn gave his evidence in a straightforward manner. He maintained that Mr Kahn had given evidence that he reverted to submitting the matter to Esanda in case the applicant was lying in respect of how often she had carried out the act of cash-jacking. 171 Mr Moir finally made submissions in respect to the situation arising in the event that the Commission intervene on the applicant's behalf, what compensation might be appropriate, and pointed out to the Commission that the applicant's period of unemployment was minimal, that is her economic loss. He also asked the Commission take into account the two weeks pay in lieu of notice given to the applicant, which was merely an act of grace to accommodate her resignation, made at her own request and to avoid implications for her name. The evidence shows that the applicant retained employment within a month of leaving the respondent's business. 172 He asked the Commission not to be hoodwinked by the notion that the applicant should be regarded as innocent on the basis that her opportunity for compensation was fairly minimal and that this might indicate her innocence inasmuch as that she pursued the claim to clear her name. 173 Finally, Mr Moir suggested that it would be inappropriate for the Commission to rely upon matters voiced on transcript by the respondent during conciliation conference. Final Submissions in reply by Mr Easton 174 Mr Easton began in his reply to the final submissions by Mr Moir by describing Mr Moir's suggestion that the respondent allowed the applicant to resign as an act of grace is simply laughable. He had threatened Ms Benson, basically that if she did not resign, he would "go through the proper channels", which were to take the matter up with Esanda. This has to be considered in the context of the evidence of Mr Kahn that the act of cash-jacking put the whole dealership at risk, and everyone in the business, and all other employees at risk and it is farfetched then to suggest that it was an act of grace to give her two weeks pay and to allow her to resign. 175 On the question of motive relied upon by Mr Moir, a number of people have been identified with a motive to do this process. He alluded to the fact that the car had been left on the lot some time in July, either the 24th or 25th, a whole range of people who had actually sold a car to someone and no-one had got any money for it at that stage. You have a Sales Manager and a salesman and a business manager, and a dealer principal, all with a $40,000 car in their lot, that no-ones got any money for at that stage. Either Mr Demarco or Mr Abi Rached was in possession of the car at this stage and it is agreed that the car left the lot before August. Mr Richardson, the Sales Manager, is saying to Ms Dent that the car has left the lot, and he needs to sort out the finance, so if that is not a motive, for someone to fudge a couple of numbers and try it again, what is. That's at least one motive, and there is plenty more of course. You have sales managers, who have a financial interest in the sale of the car. If the deal falls over, nobody gets commission. The possibility of Ms Dent or Mr Elliott have been asked to fix up the deal by somebody else that they work with, is sufficient motive. Those people had opportunity. 176 Mr Easton denied that the evidence showed that only the applicant and Ms Dent could have had access to the computer system. 177 Mr Easton next talked of the various steps required for entry into the system and whether in the respondent's submissions, there was discussion of a five step process for logging on. Step two is where you enter your user name and password and step four is where you enter your user ID and password. Those two stages were referred to by Mr Easton in his closing submissions and as shown on page 2 of Exhibit 11, the password to step one can be saved as indicated by the evidence of Mr Elliott. If that is saved, it is not necessary to go through that step any further. If that is conceded then the rest of Mr Moir's submission in relation to how Ms Benson allegedly misled the Commission in some whole hoodwinking exercise, falls away. Mr Easton suggested then that, if it is conceded that step one is overcome by saving the log-in, then step two in Mr Elliott's evidence is quite possible that you bypass if you tick the box. Mr Elliott's evidence of the confusion that someone outside might face with what box to tick, was an absurd proposition. 178 Mr Easton submitted that the description of cash-jacking as misleading and deceptive conduct towards the finance company, was accepted by his client, but by that definition the conduct of Mr Elliott and Ms Dent should also be guilty of cash-jacking when they put Mr Chehar on as a reference for Mr Rached, which was misleading and deceptive. He again alluded to the inflated trade-in price to GE Finance, that also has to be misleading and deceptive. 179 Mr Easton again submitted that the investigation by Mr Kahn involving the documents produced in NK1 of his affidavit Exhibit 7 was inadequate and therefore harsh. 180 Mr Easton denied the assertion of Mr Moir that the applicant had attempted to construct a theory that someone else tampered with the system to entrap her. 181 Mr Easton also refuted the suggestion of Mr Moir that the test for the Commission was that there was no rational explanation from the applicant about what happened. Neither is it the case that it was simply a case for the Commission to decide who was most likely to have done the deed of cash-jacking. This is also not the question. The authorities make clear that the respondent has to establish on a Brigginshaw standard that the applicant did the misconduct which they claim she did. This is the error that the Commission in the first instance made in the Cootamundra case referred to earlier, when in that case a whole series of unexplainable transactions led the Club to assume that Mr Humphries was implicated and where the Full Bench had indicated that at least one suspect transaction had occurred when Mr Humphries was not on duty. In this situation, where there was a false contract of sale after Ms Benson went on holidays, that is the 13th August, she is likewise away from the work. To suggest, as Mr Moir did, that Mr Paric was in cahoots with the applicant only illustrates the point that Mr Kahn, some thirteen months ago should have done a proper investigation. 182 Mr Easton quoted from a page of transcript of the 18th July at page 33. Ms Dent, in that exchange, whilst maintaining that there was a necessity to know the particular password, was not sure as to whether or not with that knowledge, a person was capable of accessing the system from another yard. 183 In that vain, Mr Easton pointed out certain indications where this may have been the case, such as where Ms Horan was able to generate a report, which the Commission did not find out about, until Mr Kahn was in the witness box and showed that Mr Kahn didn't even generate. Other indications where Mr Kahn was not able to say when Ms Horan generated the particular report, but nonetheless she is able to access information about deals done at Ms Benson's yard. On the question raised by the Commission as to whether or not the evidence showed that once the application is made, it is open to other people to access the transactions. Mr Easton said that there was no evidentiary basis for that to be contended by Mr Moir. 184 In respect of the circumstantial evidence relied upon by the respondent, Mr Easton referred to the fact that there are people who would have first hand evidence of whether or not Ms Benson was actively involved in the cash-jacking and the obvious example of that is whoever drew up the false contract of sale. That person was never called by the respondent. No one tried to give direct evidence about that contract of sale at all. That was a logical point for the respondent to establish. The value of the vehicle was changed in that contract. Someone drew up the "bodgie" contract of sale at the $42,000 figure so that the paperwork matched the finance application, but there is no evidence that the applicant was involved in that. The evidence is the opposite, that it was done either on the same day or after the correct contract of sale was done, and that contract of sale was on the 13th August after the applicant left on holidays. Ms Dent's evidence was that she drew up that contract and executed it on the 13th August. Mr Kahn's evidence is that he's got no reason to doubt that. Ms Benson does not know. Mr Elliott said that he did not know anything about it, even though Mr Kahn thought that Mr Elliott then processed the finance transaction with GE based on that contract of sale. Mr Kahn agreed that the sequence number of the contracts would suggest that the false contract was done after the one that was finally executed, which contained the higher figure of $42,000. 185 Mr Easton next referred to the form 4 Department of Fair Trading form which goes in the window of the vehicle. If there is a form 4 that has a sale price of $42,000, then there is nothing wrong with any of the transactions. That is where the absence of calling Mr Richardson is fatal for the respondent's case. The relevance of the form 4 was that it is against the Motor Dealers Act to sell a car for anything more than what is on the form 4, which had a price just under $39,000 and to draw up a contract of sale with a sale price of $42,000 will offend those provisions. Mr Kahn did not know whose handwriting was on the false contract. He chose not to find out. 186 Mr Easton dealt with the submission from Mr Moir that the applicant had testified that she did not do anything with the application after the initial application and that the tax assessment notice proved her to be lying about her attempts to arrange finance for Mr Rached after the 27th July, and that she was working on the file. The applicant's evidence was that she told Ms Dent in mid August not to touch the application because of the problems she had run into, but there is no suggestion from Ms Benson that she did nothing at all in relation to the finance deal after the 27th, but simply that she did not put any deal to Esanda after the 27th July. It is not the case that she said that she did not touch anything after that date. She just didn't put the application to Esanda. 187 Mr Easton next dealt with the decision by the applicant not to accept the invitation to be recalled to deal with the aspect of the log-in passwords etc. where she was said to have been contradicted by Ms Dent and Mr Elliott. If she had been re-examined by Mr Moir, it would simply be a case where she would have insisted that she did not have a two step log-in process, and when the concession by Mr Elliott of being able to tick a little box, which probably means you don't go through the first step, then it is readily open to the Commission to conclude that she never had to go through the first step. She could only put what her own experience was and it is not as if she can explain the setting up of the employer's system. He submitted that when the witnesses were talking about the log-in processes, what Ms Benson says is the process is really what Mr Elliott and Ms Dent say is the second lot of log-in that they have to go through. What was not proved is that Ms Benson had to go through the first stage log-in. 188 Mr Easton suggested that the Commission need not make a final finding as in respect of whether or not there was one or two log-ins because what he described as one very distinct problem of the respondent's system, is that someone in one yard can get in and get access to the information about deals being done in another yard. The Horan discovery as it was termed, showed that someone can happily navigate their way to investigate the very serious allegation of cash-jacking. Mr Kahn interviewed no-one before the interview with the applicant, including those that were obviously involved such as Ms Dent and Mr Elliott, although they were involved in a peripheral way. Neither did he interview Mr Paric, or anyone else supposedly who fudged the contract of sale figure. 189 Mr Easton raised certain questions in respect of the subsequent application made by Mr Elliott to the GE finance and the extent to which Ms Dent was involved. He regarded Mr Elliott's evidence as to her involvement as being shifting. 190 Mr Easton referred to the fact that the applicant had cried during the interview with Mr Kahn, and the Commission ought to disregard his evidence that there were no tears. It was obvious that Mr Kahn engineered her termination. 191 Mr Easton responded to the question from the Bench of why the applicant had resigned on the basis that she was told in her evidence by Mr Kahn, "you have the choice of getting fired and receiving your commissions for the month and not two weeks in lieu, or to resign and receive your commission and two weeks in lieu, and your two weeks of holidays that you have not used". He did not believe it was available to the applicant to simply say to Mr Kahn that he should prove his allegation. In the situation where the employer comes in the door, closes the door, hands her a couple of pieces of paper and says, what's wrong with these and then accuses her of the cash-jacking and says I'll either sack you or you can resign, and if you resign you get some benefits, if you're sacked you don't. The applicant obviously saw the writing on the wall and resigns and she should be considered in the context that she believed that she is going to be out the door whether she says I resign or whether the boss, well alright, I terminate you. 192 Mr Easton alluded to the point of credit of Mr Kahn that when it was put to him what connection was between unfair dismissal and the situation where the applicant resigned. He claimed not to have known and to have simply claimed that he was using just "words". 193 Finally Mr Easton dealt with the suggestion from Mr Moir that Annexure A to Exhibit 6 is the only document that makes reference to the 24th July or the 27th July, as being the dates that Ms Benson or someone processed the applications through Esanda. Mr Easton said that in fact they are the only documents that had any date relevance to them, but would suggest that the applications were made on the 24th July and 11th August, not 24th and 27th July, 2004. 194 Mr Easton suggested that contrary to the submission of Mr Moir there was no evidence from the documents to suggest that the transactions were actually done on the dates of the 24th and 27th July and 11th August. In addition, there was inherent problem with Exhibit 6 relied upon by Mr Moir. Firstly, nobody gave evidence to say what the document actually means and two, it is inconsistent with Exhibit 7. That inconsistency arises because of transaction 5030 is shown in Annexure A to have been declined, and the respondent's case is that this document somehow shows that the transactions were done on the 27th July. Mr Kahn did not know what the date prepared column meant, that is whether it is the date submitted and note that the date of printing out of the 18th February, 2005 at page 58 of Exhibit 7 is obviously after the 27th July and that shows decision delayed. Who knows what happened between February and 9th April, 2005 when the document was printed. The Commission cannot properly put any weight on that document, again because, no-one has told the Commission what it means, nobody knows what it means and no-one has told the Commission. 195 Mr Easton finally submitted that one of the inherent problems of the investigation by Mr Kahn is that he had no understanding of the system and has jumped to a conclusion that isn't supported by the evidence. CONSIDERATION 196 This has been a most difficult case to decide. More than usually the credibility of witnesses was crucial to the Commission's findings, especially in respect of the threshold jurisdictional matter of whether or not the applicant was constructively dismissed. If the applicant satisfied the tests established for that concept to apply, the focus becomes whether the respondent discharged the onus of proving that the applicant had engaged in the serious and wilful offence of cash-jacking a motor vehicle for the purpose of attracting finance which might otherwise be unlikely to be provided by a finance company, in this case, Esanda. 197 The case was also unusually complicated in respect of security system of the computer system for accessing the Esanda Finance company module, known as "Abacus", for applying to Esanda for loans for customers. The number and nature of passwords required in that process became a major issue of itself and was central to Mr Moir's reliance upon the lack of viable alternate explanation other than the applicant been said to have left an evidentiary trial shown by certain computer printouts. 198 The other focus was the issue of the apparent deficiencies in the respondent's investigation suggested by the inconsistencies and range of questions raised through Mr Easton's exposure of some questionable documents relied upon by the respondent attached to Exhibit 7 as NK1. 199 The Commission expressed its dismay during the hearing of this matter that the issue of the security codes required to enter the Abacus system only arose in respect of the applicant's rebuttal statement. Neither the applicant, in her case presented to the Commission originally in her affidavit Exhibit 2, or the respondents in their affidavits beginning with those of the chief respondent witness, Mr Kahn, in Exhibits 5 and 6, raised the crucial issue of how easy or difficult it would be for another person to make the alleged applications to Esanda on behalf of the customer Abi Rached. These were credit assessment number 5030, 5031 and 5045 beginning at page 58 of NK1. 200 Mr Easton defended the fact that the applicant had not initiated the issue of the degree of accessibility of persons to the Esanda system in her opening affidavit, Exhibit 2, on the basis that she was never properly informed of the reasons for her dismissal. It was quite proper for her to simply react to the respondent's case, presented by Mr Kahn and others, once in receipt of the respondent's affidavits showing her being dismissed for cash-jacking - hence the matter being raised in the applicant's statement in reply, Exhibit 3. I note however, that the applicant was made aware of the reason of cash-jacking through the fairly comprehensive conciliation conferences where the issue was raised on 14th and 15th October, 2004. 201 No such legal/technical excuse existed for the respondent, who the Commission believes was remiss in not raising the obvious issue of the probability of outside persons accessing the Abacus system, as the applicant went on to do in her rebuttal statement Exhibit 3. 202 The Commission made the decision, rightly or wrongly, to allow a proper reply by the respondent to those matters raised in the applicant's rebuttal or reply statement, Exhibit 3 in relation to the number and nature of security codes and passwords needed to enter the Abacus system in order to establish whether or not the applicant was correct in stating that there was a simple one step process, which could lead to tampering by other employees. To address any potential prejudice to the applicant, the Commission invited Mr Easton to allow his client to be recalled to deal with the contradictory evidence offered by Ms Dent and Mr Elliott on this score, who claimed that there were a much more complicated and multilevel steps required by way of passwords and codes for anyone to enter the system. Exhibit 11, tendered during Mr Elliott's evidence, purported to be documentary backup for their oral evidence. 203 The Commission would have been best served, along with the interest of the parties, had there been a formal inspection on site at an early stage where the issue of the computers could have been properly and more simply judged. As it turned out, the matter had to be approached in a much less satisfactory manner, forensically speaking. This rather "backdoor" approach led to an extension of hearing time and to some confusion as to precisely what was being contended by both Mr Elliott and Ms Dent, when they insisted that the applicant's evidence of a simplistic single step process was incorrect and when they attempted then to establish, often in what seemed a varying manner, what they regarded as the true requirements. It was fair to say that Mr Easton managed to establish some doubt, firstly as to the precise knowledge of Ms Dent and Mr Elliott as to whether it was possible to enter the Chrysler Jeep yard where the applicant was stationed, using the Abacus system from another yard, as long as the codes and passwords were known. Mr Easton also identified some equivocation on the part of Mr Elliott as to whether or not there was a capacity to tick a particular box on the screen, which eliminated the necessity to take one of the steps and which might account for the applicant's ability to enter the system in a simple way as contended by her. Whilst those doubts raised by Mr Easton were not found to be profound contradictions, they did raise the spectre that, in the absence of expert evidence and/or an inspection, it might have been that the applicant was able to enter the system by her own more shortcut method as she suggested. Having allowed the respondent to address the issue at length, the Commission ruled in Mr Easton's favour to not allow the respondent to call a witness from Esanda, given the time taken at that point and that enough leeway had been allowed the respondent over its style of bringing belated evidence to address shortfalls in its presentation. Such a witness may not have resolved the issue. 204 Exhibit 11 when finally tendered, showed a definite 2 stage process consistent with their evidence. 205 The matter may have been simplified had the applicant accepted the invitation to give further evidence in rebuttal to the contradictory evidence of Ms Dent and Mr Elliott. 206 Mr Easton dealt with the decision of the applicant not to return to the witness stand to deal with this issue, on the basis that she had given her evidence and had no desire to reopen the issue where she was plainly at odds with the other witnesses, and was not about to allow Mr Moir a further opportunity for extended cross-examination, which might not assist the Commission and extend the hearing beyond the already excessive time spent in litigation. The question for the Commission on that matter, urged by Mr Moir, is whether an adverse inference is to be drawn against the applicant for not being recalled. I have declined to do so in view of the right of the applicant to maintain her evidence as already given. 207 Despite that puzzling feature of the case, Mr Easton believed that the Commission would not have difficulty in overcoming any arguments as to the likelihood of other employees entering the system and performing the cash-jacking for which the applicant was dismissed on the basis that, contrary to the submissions of Mr Moir, the test for the Commission was not, he said, to be satisfied that there was no reasonable likelihood that another employee had made the offending applications to Esanda with the cash-jacked price of the vehicle. The respondent's submission in respect of this overlooked the onus, which he said was not discharged by the respondent to prove that the applicant was responsible for the cash-jacking and the evidence did not show that this was the case. Mr Easton's argument on the test to be applied has to be accepted by me, as it would hardly be possible or reasonable to expect the applicant to come up with viable alternatives, which go beyond speculation. 208 The Commission is therefore required to look at the key issues for determination, commencing with the threshold issue of whether or not the applicant was terminated by constructive dismissal by the respondent, but that too required an assessment of the credibility of Ms Benson and Mr Kahn. In the process, I have had to deal with other competing evidence from Mr Elliott and Ms Dent in order to assess Ms Benson's credit. Credibility of Witnesses 209 The applicant's demeanour in the witness box and style of delivering her answers impressed as a witness of truth, giving her responses in cross-examination in a straightforward/matter of fact manner. She impressed the Commission throughout all proceedings also as someone self-effacing and retiring in her manner. 210 The witnesses Ms Dent and Mr Elliott, whilst not directly betraying an eagerness to ingratiate themselves with their employer by adverse evidence against a former employee, nonetheless gave some indications of being less than independent. 211 This is a difficult concept to judge, but here I refer to the fact that both indulged in an effort to discredit the applicant's testimony as to the ease of accessibility into the Abacus system, beyond that expected of such witnesses, when they downloaded certain information in the form of Exhibit 11. In the case of Ms Dent, she did this in conjunction with Mr Elliott in the face of a clear warning that she should not discuss her evidence with anyone in the time between being recalled to clarify the applicant's claim as to the ability of another person to access the Abacus system. Mr Elliott denied that they had discussed the evidence in the process of downloading Exhibit 11, and Ms Dent had already finished her evidence. His evidence in this area did become suspiciously guarded, when he resorted to "I don't recall" repeatedly, as identified in Mr Easton's final submissions. Mr Easton was understandably sceptical, as is the Commission, but it does at least reflect upon the independence of both Ms Dent and Mr Elliott to give dispassionate evidence. 212 Also, the tendency for Mr Elliott to be so certain of the applicant's guilt, when apart from the question of opportunity and motive, there were clearly signs of inconsistencies having occurred, especially within the bundle of documents in NK1, that another or others had a hand in the preparation of contract and other documents, which should have puzzled even the most straight forward of thinkers, although he reverted to saying that his role was limited. 213 There is no doubt that both were involved in identifying the alleged attempt by the applicant to progress Abi Rached's application with a cash-jacked price on the vehicle, although Mr Elliott denied doing an investigation or being upfront with information to Mr Kahn. In the same area, he denied being "a dobber". 214 This direct involvement does not automatically categorise them as anything other than reliable witnesses, but does put them into a class different than a completely independent witness. The fact that both "sat" on their discovery for unexplained periods between 12th August and 21st August, although a minor matter was nonetheless a curious feature. 215 The Commission next deals with the specific issues of the credibility of the applicant raised by Mr Moir. 216 The first of these related to the applicant's claim that she had not dealt with the application for Mr Rached to the Esanda Finance Company using the Abacus system beyond the application submitted for Mr Rached on the 27th July following the rejection of Mr Demarco's original application to Esanda on the 24th July, 2004 . Mr Moir contended that the fact speaks for itself that the applicant had been faxed a copy of certain information on 4th August (P.95 of NK1) and then had also been the author of a fax to an officer of Esanda enclosing a tax assessment for Mr Rached in respect of the application (P.79 of NK1). When this matter was put to the applicant, she testified that the issue of a tax assessment was on her brain and that she incorrectly referred to it in the fax to Esanda which was undated. This did not prove that she made a further application as suggested and she denied authorship. 217 The Commission has considered the representations of Mr Moir to not accept this explanation, but in the circumstances, it is quite plausible that the applicant simply incorrectly referred to the matter which she believed arose from her having so many matters on her mind at the time. The fact that it had been sent on 4th August is not conclusive and the applicant had no advantage in lying about such a subsidiary matter. 218 Another point of credibility raised by Mr Moir with the applicant, was that the applicant had contended that cash-jacking was never mentioned at finance committee meetings when evidence from Mr Kahn and Mr Elliott was that the matter was regularly raised. Still another issue was the applicant's claim to have approached Mr McNaughton about becoming a Finance Manager at the Mitsubishi yard, which was denied by Mr McNaughton as an exaggerated account of the conversation. He had no motive to fabricate his evidence according to Mr Moir. 219 On these two issues, the Commission notes that Mr McNaughton did not give evidence that cash-jacking was regularly mentioned at meetings and neither did Ms Dent, which is only a minor indication, but overall, the Commission is not satisfied by Mr Elliott's evidence, or Mr Kahns, that in the applicant's time as Finance Manager, that the matter was mentioned as claimed. It is more likely that there is no need to regularly mention such an issue, as it was fundamental, unless other persons were perceived to be likely to indulge such illicit conduct. Both Ms Benson and Ms Dent said they knew the problems of cash-jacking from their training. Perhaps Mr Elliott experienced earlier instances of the matter being raised. Again, there was no discernable advantage in the applicant taking that point, as she readily agreed on the seriousness of the issue deserving dismissal and also knew its importance from her prior employment. 220 As to the issue of the applicant's seeking promotion being denied by Mr McNaughton, the Commission notes that his evidence in this area was not on a fundamental issue and quite possible that this issue is more about perceptions than accurate recollections. Again, there was no advantage to the applicant in giving such evidence and it is possibly a question of poor recollection. 221 Mr Moir moved to the issue as to whether or not the applicant was to be believed that she had approached Ms Dent not to submit the Abi Rached deal before she went on leave. She pointed out that Ms Dent categorically denied being advised of this by the applicant. He believed that the Commission should prefer Ms Dent's evidence over that of the applicant. The Commission is unable to decide either way, and if Ms Dent felt embarrassed about such an admission, she might deny it. On the other hand, one would think that if the applicant invented that aspect, that she would have expected a denial from Ms Dent. 222 Given that Ms Dent was said during proceedings to be one of the few people who alternatively might have done a cash-jacking exercise, the Commission must recognise the possibility, although remote, that her evidence in contradiction to the applicant did after all have a motive. The Commission is therefore unable to clearly determine whose evidence is more reliable on this point, the applicant or Ms Dent, and that issue might be considered in the context of the larger question of the discharge of the onus falling upon the respondent. 223 The Commission in arriving at this point does not wish to infer that either Ms Dent or Mr Elliott (or Ms Horan for that matter) were likely suspects so to speak, in any analysis of what actually took place, quite apart from the fact that this is not the province of the Commission in this case. 224 This matter leads on to the more important credibility issue of the number of levels required to enter the Abacus system, with the applicant suggesting in her rebuttal statement that the process was quite simple, by use of user I.D. and a simple password, which changed each month. This has already been partly dealt with, but was important enough to revisit more comprehensively. 225 The Commission has already commented that it was dissatisfied with the manner in which this important area of the evidence was approached by both the applicant and the respondent, but was particularly critical of the respondent. That aside, the Commission is faced with contradictory evidence of the applicant as opposed to Ms Dent and Mr Elliott and, as already indicted, the Commission is simply not able to say that it embraces the contradictory evidence of Ms Dent and Mr Elliott. 226 Moreover, Mr Kahn, who one would have thought would have uppermost in his mind of the security of Esanda system and would have canvassed such an issue in his investigation, said very little about the security of the system, except later under challenge in cross-examination. Even in his witness statement, Exhibit 5, he spoke loosely of how he printed the documents, creating the first impression that he did so himself, but later insisted that he was not able to enter the system, which seemed an afterthought. His vagueness as to who he required to do so, either Ms Dent or Mr Elliott, was unhelpful to say the least, especially as Ms Dent was fairly certain it was not her - contrary to the final offering from Mr Kahn that she printed the material. His resort to "seriously don't recall" at one stage was difficult to believe. His loose reference at one stage referring to allegedly showing Ms Benson "the abacus deal" at the 30th August meeting, when in fact it was more accurately described as the Abi Rached application for credit, was another minor reflection of the level of ignorance of the system manifested more widely by Mr Kahn as company director throughout the case. 227 The respondent's case that anyone was able to access the system once an application was made to copy those applications, such as Ms Horan, and provide the same to Mr Kahn, did suggest that perhaps Mr Easton was right that the applicant's evidence that anyone from another yard might access the system, may not have been far from the truth. This however, was one of the loose ends of this matter, not satisfactorily resolved in the evidence to the Commission and that level of doubt must be in the applicant's favour, that the possibility did exist with the technical idiosyncrasies of computers that the system might be tampered with by an unknown person with sufficient motive. 228 Mr Moir thought the applicant was the only one with sufficient motive. Although, no direct evidence was given of this, the matter was loosely canvassed in proceedings by the Commission itself, that such a person might be a salesman with the motive of procuring a sales commission. If the applicant had previously informed on another finance manager for cash-jacking as she claimed, and being ignored by that person when approached, as she claimed, that is simply another possibility, although it is unpleasant to suggest such a vengeful act might even be remotely likely. 229 Alternatively, the evidence of Ms Dent showed that the vehicle involved, a Mitsubishi Pajero, was curiously delivered to the customer John Demarco (brother of Abi Rached) this would appear to have been as early as 24th July, 2004, well prior to the issue being raised between Mr Kahn, Ms Dent and Mr Elliott, whilst the applicant was on leave. Even more curiously, Mr Rached also signed for delivery on 13th August, 2004 - dangerously soon after the applicants going on leave. Again, the suggestion of Mr Easton that the improper application was made in order to cover the fact that someone had taken delivery of the vehicle prematurely, might have been a strong motive for whoever was responsible for the deal to have done so and to allow the applicant to take the blame. Again, the Commission is mindful that it is not its task to pinpoint other suspects, but merely to canvass the possibility of that happening, especially given Mr Moir's understandable emphasis upon the respondent's reliance upon there being no viable alternative identified by the applicant. 230 Another issue of credit identified by Mr Moir against the applicant was her claim that Ms Horan had earlier cash-jacked a deal by an amount of $30,000. Mr Moir suggested that, that "massive figure" was quite ridiculous, for someone like Ms Horan to have carried out. He thought that aspect itself indicated the applicant had falsely given testimony in this regard. The fact that the applicant's evidence of warning senior officers of the matter was refuted by Mr Kahn and Mr McNaughton, and who testified along the lines that Ms Horan was simply transferred because she was not dealing properly with new car customers was a matter to be assessed against the reliability of so-called corroborative evidence, where there is a vested interest by these very senior representatives of the respondent in bringing such evidence forward. 231 In this case, the fact that the price jacking involved an unlikely figure of $30,000 was dealt with by the applicant on the basis that it depended upon the value of the motor car. This has also been taken into account by me, and again the Commission is unwilling to consider the evidence of the respondent in the person of Mr Kahn, and in this instance Mr McNaughton over that of the applicant, even though it was of a somewhat corroborative nature. The idea that Ms Horan was transferred merely because she could not get on with new car buyers seemed at least incomplete. Mr Kahn's credibility 232 It was a curious feature of the respondent's evidence in chief in this matter, that Mr Kahn squarely laid the initiative for raising the matter of the cash-jacking with Mr Elliott. 233 There was a clear conflict between the evidence the two respondent witnesses, with Mr Kahn alleging that the whole matter of the applicant's alleged cash-jacking the vehicle had been raised with him by Mr Elliott. 234 This is shown in Exhibit 5, where he claimed that Mr Elliott had approached him while the applicant was on leave with the following conversation: SE "I don't think Kylie is doing the right thing at Penrith Chrysler Jeep. She is falsifying documents". NK "What do you mean?" SE "You'd better go and check the Abi Rached deal. 235 Mr Kahn went on in his statement to say later that day he went and looked at the papers in one of the applicant's finance files, claiming to have perused pages 12 - 26 of NK1 relating to the controversial Abi Rached deal, and at the same time checking the computer records relating to finance applications made by the applicant to Esanda finance, i.e. Application Nos. 5030, 5031 and 5045, which revealed that the applicant had made an application with a cash price of $42,661 (the cash-jacked price). 236 By contrast to Mr Kahn, Mr Elliott gave a quite different version of his conversation with Mr Kahn on 21st August, 2004 about the applicant's involvement with the alleged cash-jacking. He testified that around the 18th August, whilst the applicant was on holidays, Ms Dent had rung him saying that she had been given a deal to fix and could not work out what the applicant had done in respect of the paperwork or the application to the finance company. He attended the Chrysler Jeep yard with Ms Dent, and looked at the applications which were attached to his affidavit marked A. The applications he said indicated the wrong purchase price and the wrong details of the trade-in. He advised Ms Dent that the applications were wrong and suggested getting the correct information from the customer. In the process, he discovered from Ms Dent that Mr Abi Rached did not work for Precise Finishers as contained in the original application, but worked for the National Australia Bank. He preceded then to rectify the matter by ringing Mr Rached to obtain the correct information, and then completed a finance application to GE Automotive Financial Services which is approved on the 21st August, 2004. 237 On that date, Mr Elliott claimed to have had the following conversation with Mr Kahn: NK "How did the deal go?" SE "I have had it approved." NK "What was the problem with the deal?" SE "Nothing. The deal should have been approved originally, but there was a mix up with information." NK "Were there any figures changed to cover anything?" SE "Yes, they were." NK "Okay, leave it to me." 238 Putting aside the last matter, the evidence of Mr Elliott was backed up in cross-examination by his claim that he had not raised the issue with Mr Kahn on the basis that he is, "not a dobber". Yet, clearly in Mr Kahn's account, Mr Elliott had initiated the investigation by his statement to Mr Kahn, "I don't think Kylie is doing the right thing at Penrith Chrysler Jeep. She is falsifying documents." 239 The belated equivocation by Mr Kahn in cross-examination, as to whether he was made aware of the applicant's alleged cash-jacking before that conversation on 21st August, only served to confirm that he had been incorrect in his original affidavit to create the impression that Mr Elliott had alerted him to a situation to which he was otherwise ignorant. However, his apparent shifting on the point was by no means by way of seeking to correct his affidavit and seemed to come out of the air to cover his tracks, so to speak. His credit suffered as a result in this area of the evidence. 240 The evidence of Ms Dent in cross-examination was to the effect that she had been approached by Mr Richardson, the Sales Manager, to rectify the situation where it was discovered that the customer involved, had actually taken delivery of the Mitsubishi Pajero prior to having paid for the vehicle. That was a surprising disclosure. 241 This fact was not disclosed by Mr Kahn in his testimony, and that failure I believe again reflected badly on his credit. Ms Dent's evidence of being given the task which she understood to have been initiated by Mr Kahn, but through Mr Richardson, to rectify the paperwork necessary in the light of the fact that the car had been delivered to the customer, was something that should have been raised in the original affidavits by the respondent and not left to cross-examination. 242 There are other matters of a minor nature, detracting from the likelihood of Mr Kahn's version of events. One of those was his claim in cross-examination that he saw no advantage to him in testifying as having said to the applicant that, if she was to proceed with an unfair dismissal claim that she may as well not resign and further suggested, when pressed, that he was merely making small talk. This was fanciful, and Mr Easton was correct, that it was more likely to be included in his affidavit to reinforce that he exerted no pressure on the applicant, except to insist upon Esanda deciding her fate . His contention that in using the expression "please don't resign for the sake of it", is not believable as being simply "talking for the sake of talking" as he maintained. His claim of ignorance of the constructive dismissal concept in this area was beyond belief. 243 The Commission was less than convinced that Mr Kahn had shown the applicant the documents claimed by him, especially as later in cross-examination he was forced to back away from his knowledge of documents from his original position. 244 In the end of Mr Kahn's cross-examination, it was clear, as finally put by Mr Easton, that Mr Kahn had an inadequate knowledge of many of the documents he claimed to rely upon. Perhaps the most outstanding of these was the contracts prepared by person or persons unknown, referred to earlier, and which should have raised serious questions in the mind of the investigator as to the involvement of at least a second person, either in cahoots with the applicant or independently. The controversial contracts beginning at page 12, and page 26 (along with a third one at page 81, signed on 13th August, 2004), had someone else's handwriting throughout, apparently prepared by Mr Paric. 245 The failure of Mr Kahn to investigate Mr Paric's involvement or otherwise and to be upfront with that matter in his affidavit, Exhibits 5 and 6 cannot be excused on the basis of it not being raised in the applicant's affidavits or by his later oral evidence suggesting that salesmen were simply directed by the likes of Ms Benson in the preparation of such contracts. This was a glaringly obvious matter, going beyond the equality of treatment concept and one dealing with the broader question of the proper investigation required in cases of dismissal for serious and wilful misconduct. Whilst I do not rely upon the statements of Mr Kahn in conciliation conferences, as Mr Easton did, I can at least take note of the fact that Mr Paric's or a salesman's involvement or non involvement was a contentious issue raised in front of the Commission, prior to hearing and known to be a live issue. There were other documents too throughout NK1 showing the likely involvement, if not interest, of others in the organisation, but the immediate matter here is that Mr Kahn stonewalled the area throughout in cross-examination, which reflected upon his credit for me when a more realistic approach was called for, especially in terms of onus. He only reluctantly conceded that the vehicle had been taken delivery of on 24th July, 2004, when Ms Dent had been quite open about that issue. 246 247 Accordingly, in terms of whose evidence is to be preferred in respect of the threshold issue of whether the applicant was pressured to resign, I have preferred the applicant's version. This is because of the indications of a lack of frankness earlier dealt with in respect to Mr Kahn's testimony, and also that I found the applicant's version to be entirely plausible, and therefore more likely. By contrast, the respondent's claim of the applicant immediately asking "is my job in jeopardy" seemed disjointed and out of kilter. That was a minor indication, but didn't assist Mr Kahn's version. Was the applicant dismissed? 248 A resignation, on one hand can be said to have cut off the opportunity for a proper enquiry, brought about by the employee offering to resign without challenging allegations. Where an employee is properly advised of the allegation and freely chooses to resign in the absence of coercion, the employer might be entitled to take from that situation, not only that the employee prefers to resign rather than be dismissed, but has done so because they are guilty of the serious allegation clearly put to them, and which would lead to their dismissal if proved. This may be so, even if the employee does not actually make such admissions. The resignation can be said in such circumstances to have cut off the employer's ability to properly investigate the matter. 249 These are the broad circumstances relied upon by the respondent in this case. 250 Alternatively, what this might overlook is, inter alia, that an employee may react to certain pressures from the statements made to him or her and also in the process, deny themselves the opportunity to provide a plausible explanation for the allegations. This relates to the applicant's case in this case. 251 The Commission has had the opportunity to traverse some of the well traversed cases in respect of constructive dismissal, such as the decision of the Full Bench of this Commission in Allison vs Bega Valley Council, reported at (1995) 63 IR 68, and also the decision of the Industrial Court of Australia by Moore J in Rheinberger vs Huxley Marketing Pty Ltd, reported at (1996) 67 IR 154. 252 I have generally availed myself of the opportunity of taking in those authorities helpfully referred to me by both counsel. 253 Borrowing from the Full Bench consideration in Allison's case the following propositions might be said to require examination: · whether the employer behaved in such a way so as to render the employer's conduct the real and effective initiator of the termination……despite on the face of it the employee appears to have given his or her resignation. · whether the resignation was freely given and without any undue pressure; · whether, "the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been bought about by the employer". 254 Moore J in Rheinberger's case dealt with whether the words of the applicant were consistent with her volunteering her resignation and equally, without any real thought, it was accepted by (the employer) who then indicated she should leave immediately - other special circumstances in that case are not relevant here. 255 His Honour quoted from the decision of the Full Bench of the Industrial Relations Court of Australia in Mohazab vs Dick Smith Electronics Pty Ltd (1995) 62 IR 200, which also dealt with the expression "termination at the initiative of the employer", described by the Bench as referring to termination bought about by the employer and which is not agreed to by the employee. 256 A quote from that Full Court Decision went as follows: "in these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer, but plainly an important feature is that the act of the employer results directly or consequently in the termination of the employment and the employment relationship is not voluntarily left by the employee. i.e. Had the employer not taken the action it did, the employee would have remained in the employment relationship." 257 Moore J. went on to say that it was not sufficient to demonstrate that the employee did not voluntarily leave. He left open the question as to whether the termination of employment at the initiative of the employer required the employer to intend by its action, that the employment will conclude. He went on to say that he was prepared to assume for the purposes of that case, that there can be a termination at the initiative of the employer, if the cessation of the employment relationship is the probable result of the employer's conduct. 258 Mr Kahn's evidence of what took place between he and the applicant on the key issue of the constructive dismissal on the 30th August began with a telephone call to the applicant on the 25th August and with the following exchange: NK "when are you returning to work" KB "Sunday" NK "there is no point in coming in on Sunday. I will see you Monday" KB "is my job in jeopardy?" NK "it's a matter we need to discuss face-to-face on Monday" KB "are you going to terminate me?" NK "we will discuss it on Monday". 259 Upon the applicant's return to work on the Monday at around 4pm Mr Kahn approached the applicant, closed the door of the office and slid the window shut in her office for privacy reasons and had the following conversation: NK "Did you ever misrepresent a transaction to a finance company?" KB "No" 260 Mr Kahn then testified that he showed the applicant "the paper relating to the Abi Rached deal". NK "Tell me what is wrong with it" 261 After looking through the documents the applicant said: KB "There is nothing wrong with them." NK "You have jacked the price of the car to the finance company. You know how serious a matter this is. We could lose our dealers licence. I will not tolerate anyone jeopardising our dealers' licence." KB "This is the only transaction I have ever done this to and I swear on it." NK "I am going to refer the matter to Esanda." KB "What about if I just resign, what entitlements would I get?" NK "You will get two weeks pay in lieu, your normal commissions and a satisfactory reference from me. If I terminate you, the entitlements will not be the same.": KB "Fair enough." NK "If you are going to go unfair dismissal and only resign for the sake of it, then there is no point and we might as well let the matter take its natural course." KB "No, that's fine." NK "You can finish up at 6pm." 262 The resignation of the applicant was Annexure C to the applicant's affidavit sworn on the 3rd February, Exhibit 2. 263 By contrast to this, the applicant's testimony as to the conversation between herself and the respondent which she alleged to be a constructive dismissal, went as follows. 264 Upon receiving the telephone call from the respondent on the 25th August shortly before the end of her annual leave, Mr Kahn had said to her words similar to that suggested by him, "I have a few issues that I want to talk to you about, and don't worry about returning to work until Monday the 30th August." KB "What do you mean? Is there anything wrong?" NK "No, nothing ! Don't worry about it, we'll talk on Monday." 265 Ms Benson testified that it was unusual for Mr Kahn to make such calls and after she got off the phone with him, she began to worry and rang him back on the mobile straight away with words to the following effect: "Nards, it's Kylie. Have you got a problem with me, or is my job on the line?" NK "No, no, no, no! Everything is okay. We'll talk about it when you come in and no, your job is not on the line. I will speak to you when you return to work. Don't worry!" 266 The applicant remained uncomfortable and confused and testified that she could not stop thinking about the matter for the whole of the time during the remaindering few days of her leave. 267 When she returned to work on Monday the 30th August as agreed, there was nothing out of the ordinary, and around four o'clock that day Mr Kahn walked into her office and the following exchange took place, with words to the effect: NK "How are you going?" KB "Good! I'm getting a sign up ready." 268 At that point Mr Kahn turned around, closed the office door and slid the window shut and said words to the following effect: NK "Kylie, I want to talk to you about the Demarco deal, the one which you were working on before you went on holidays." KB "Oh yeah, I couldn't get the deal set." NK "And do you have the deal?" 269 The applicant then testified that she took the paperwork for the Demarco file from the over and out drawer, which was for files which deals could not be set and then said words to the effect: KB "After the customer gave his details, I submitted the deal to Esanda. But Esanda staff called me the same day and told me the customer already had a current account with them, but that account was a poor account. The person from Esanda said they wouldn't do the deal unless the customer kept the previous one up-to-date for the next six months. I then rang Demarco and explained what Esanda said to me and Demarco said to me that he would get his brother to do the finance for him. Demarco's brother then rang me and gave me his details and faxed over his licence and other documents. I put the details in the system, but didn't submit it as I believe Esanda staff would be able to link up the trade-in payment amount with the deal submitted earlier that day in the name of Demarco. I then rang the client and explained that it would be best if he could wait until I go back from holidays. Just before I went on leave, I also told Barbara (my fill-in) not to put the deal through at this stage." NK: "Esanda told me about the second application." KB: "That's not possible. I didn't submit it." 270 According to the applicant's further evidence, Mr Kahn then said words to the following effect: NK "Look, I can't have anyone working for me that I can't trust." KB "What do you mean?" NK "You have the choice of getting fired and receiving your commissions for the month and not two weeks in lieu or to resign, and receive your commissions and your two weeks in lieu and your two weeks of holidays that you have not used. Oh, and I'm not happy with your performance." KB "I don't understand, I haven't done anything wrong!" NK "I've told you what the reasons are and I'll give you the choices. That's it." 271 The applicant's evidence was that at that point she was shocked and upset and began to cry. She believed that she had no other choice but to resign and without thinking further, said words to the effect, "in that case I'll resign", to which Mr Kahn responded, "put your resignation in writing". To the applicant's question as to what she should write, Mr Kahn suggested, "put, that it is due to personal reasons." 272 They then proceeded some conversations to answer the applicant's question as to who was to take over from her, with a promise from Mr Kahn that he would give her a good reference and that he would put the reason she left was because of staff cutbacks. He then asked her to finish up at 6pm that afternoon. 273 It was also the applicant's evidence that she was left distraught and in tears and could not think clearly as to what to do, and after speaking to her partner, packed her personal belongings and left the office and was surprised to see the staff standing around in anticipation and wished her good luck and good-bye. Was the Dismissal Unfair? 274 I have found that, in accepting the applicant's account of her termination and rejecting Mr Kahn's version where it conflicted with hers, that the applicant was constructively dismissed. 275 I have also in the process had to reject the contention of Mr Kahn that he insisted to the applicant that she not resign if she intended to put an unfair dismissal case in and to allow matters to take there normal course by him referring it to Esanda. In any event, that always appeared to the Commissioner as fairly hollow and designed to bolster the respondent's case that the applicant had very much volunteered her resignation in the face of the option of allowing Esanda to make a decision for the respondent. 276 Her version of events makes no mention of the threat to refer the matter to Esanda for a start. Whilst this issue is relied upon by Mr Easton, her counsel, to show that the applicant was under some pressure of the style visited upon the employee in terms of Allison vs Bega Valley Council, I cannot agree that this threat occurred. Rather, the pressure came with the straight out threat of dismissal or resign. 277 I have found that the applicant was dismissed when Mr Kahn said to her, "look, I can't have anyone working for me that I can't trust" to which she responded, "what do you mean?" and to which he then responded, "you have the choice of getting fired and receiving your commissions for the month and not two weeks in lieu, or, to resign and receive your commissions and your two weeks in lieu and your two weeks holidays that you have not used. Oh, and I'm not happy with your performance." The applicant then said, "I don't understand, I haven't done anything wrong!" with the respondent then saying, "I've told you what the reasons are, and I've given you the choices. That's it." The applicant understandably then, but of course foolishly, chose to resign. 278 The words used by Mr Kahn in that exchange, make it quite apparent that this was a classic constructive dismissal, which denied the applicant the opportunity for procedural fairness in circumstances where reasons for her dismissal were not established. 279 The question of other discrepancies through the documents of NK1 and that of onus to be considered together in deciding the unfairness or otherwise of this dismissal. 280 On the wider and more general assertion by Mr Moir that the applicant's "hands were all over the transaction" (meaning the illicit transaction), the Commission cannot agree that the evidence is anything other than unclear in this respect. Certainly, the hands of a salesman or salesmen seemed to be involved in contemporaneous contracts within NK1. Throughout the long evidence in this case, there were many documents shown to have been likely to have been prepared by persons unknown. Two of these were contracts included in the large pile of documents in NK1 of Exhibit 7, which provided strong indications that another person or persons were active in the preparation of the sale and finalisation of the Abi Rached deal. Those documents at least were clearly not prepared by the applicant and the handwriting was that of someone who remained indeterminate, but clearly not the applicant. Such a document was said at one stage to have been prepared by Mr Elliott, (but subsequently denied by him) on another occasion by Mr Paric, a salesman. Mr Richardson, the Sales Manager, was also indirectly implicated in arrangements to finalise the finance for Mr Abi Rached through GE finance when Mr Elliott and Ms Dent were said to have taken over the matter to allegedly rectify the paperwork to allow a proper application be made for Mr Rached. 281 There was actually a range of puzzling, and therefore worrying, unexplained phenomena exposed by Mr Easton and largely covered in his final submissions. The most damaging of these, not already alluded to were: · The apparent discrepancy between Annexure A of Exhibit 6, which purported to be a report, (belatedly obtained), confirming the dates of the controversial applications 5028, 2059, 5030, 5031 and 5045 found separately at pages 44 to 77 of NK1. Apart from the issue in respect of dates mentioned by Mr Easton in final submissions. The alleged summary printout in Annexure A had a different "action" outcome in one case. · The important contract containing the cash jacked price prepared by someone with handwriting not the applicant's, was numbered E0257056, which was one following in sequence the other contract (both apparently dated 13thAugust, 2004) E0257055. The E0257055 contract was signed by Mr Rached with the correct price of $37,990 whereas the E0257056 contained the cash-jacked price of $42,661, relied upon to show that the applicant was responsible. It was most curious that the offending contract follows the correctly priced contract, which should have been investigated by Mr Kahn. · The fact that there was an increase granted in the trade-in price from $3,000 to $4,200 after the apparent delivery of the vehicle on 24th July, was remarkable, but again never explained and not part of Mr Kahn's investigation. · The irregularities in the Form 4, Department of Fair Trading form at page 124 of NK1 were not satisfactorily explained. 282 Whilst no conclusion was reached on these matters, they did reinforce Mr Easton's claim of an inadequate investigation, which must be taken into account by me in terms of fair process and equally the issue of the shift of the onus borne by the respondent in cases of dismissal for serious and wilful misconduct. 283 The Commission has had regard in these circumstances to the well known authority of Pastrycooks Employees, Biscuit Makers Employees and Sugar Goods Workers under (NSW) vs Gartrell White (No. 3) reported at 1990 35 IR @70 where His Honour Mr Justice Hungerford in that said: "However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer. ……………………………………………………………………………………. The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct, but must also prove it". 284 This and many other well travelled authorities such as Franklins Limited vs Webb at 72 IR 257 and Bigg & Anor vs NSW Police Service at 80 IR 434 dealt with instances where the onus was not discharged. In Franklins and Webb it was considered he had been effectively summarily dismissed, although paid his notice period. 285 Not only was the investigation by Mr Kahn before dismissal practically non-existent with no reasonable enquiry made, but the documents relied upon, raised far too many questions to be anything but a negative influence upon the Commission in terms of the respondent's case, largely prepared after dismissal to justify certain presumptions. CONCLUSION 286 The applicant was constructively dismissed in circumstances where there was an effort by the respondent to maintain a surprise element as conceded by Mr Kahn, in order to see her natural reaction. Had the respondent not been so emphatic over the telephone saying, "No, No, No No, your job is not in jeopardy" etc. the applicant might have asked for better particulars, which in turn could have enabled her to do her own research and to therefore be in a position to quickly explain any misunderstanding arising from Mr Kahn's own inadequate investigation. Whilst it is doubtful that Mr Kahn had anywhere near the documentation he claimed to have assembled, but claimed to have subsequently misplaced, the applicant could have made her own discovery of what had occurred. (On that last point, it was difficult to believe that he misplaced documents which should have been available if Esanda had queried the matter further). She would surely then have quickly discovered some of the loose ends that this Commission took several days to be informed, including that the vehicle involved had already been delivered prematurely. She would almost certainly have been able to be more circumspect when challenged with his intention to dismiss her and able to talk in specifics sufficient to influence Mr Kahn. 287 Section 88(b) goes directly to this procedural fairness issue having within it the essential requirements to put the allegations properly and to allow a proper opportunity to explain the alleged behaviour. There was no real effort by Mr Kahn to do anything other than to force a resignation and on that basis the situation, not only fulfilled the test of Bega Valley Council and Allison, canvassed earlier, along with other authorities, but was a stark denial of natural justice, with no procedural fairness. The Commission is cognisant of the oft quoted authorities on the importance and effect of procedural fairness, which, inter alia, make clear that the concept is much more than a legal/technical issue and goes to prejudice. These include the decision of the High Court of Australia in Byrne & Anor vs Australian Airlines (1995) 61 IR 32 where their honours, Brennan CJ, Dawson and Tookey JJ observed at p.43 of that decision: "However, it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable. For example, the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in the dismissal of the employee being in breach of cl 11(a).." 288 Here Ms Benson was not shown any of the results of Mr Kahn's alleged investigation, contrary to him claiming to have done so, but simply told she could resign or be dismissed, without her full entitlements. He swiftly and opportunistically obtained her written resignation. 289 Given my findings that the applicant was constructively dismissed, having succumbed to the pressure placed by Mr Kahn for her to resign in circumstances where the Commission has not been satisfied that the onus has been discharged by the respondent to prove that she committed the act of price-jacking as alleged, that constructive dismissal was harsh, unjust and unreasonable. This is particularly so in view of the loss of reputation with a potential that she may well have not been able to stay in the industry. As it turned out, the applicant was able to mitigate her situation in a very short time, and this of course has a bearing on what compensation she should be awarded under Section 89, subsection 5, given that she did not seek reinstatement, and the adjoining requirement for me to take into account the actual economic loss of the applicant, which in terms of weeks unemployed was 1 month. 290 It is somewhat ironic that the Commission is impeded from awarding very much compensation to the applicant in view of the proper exercise of her obligation under section 89, subsection 6 to find alternative employment in circumstances, where she obviously pursued this matter in pursuit of her reputation as opposed to economic gain from any compensation from the Commission. I should say for the record, that I have accepted Mr Moir's urging that I should not be overly influenced by the situation where it seems the applicant has pursued this claim out of a sense of indignation as opposed to what she might have gained by way of compensation, given her short period of unemployment. 291 The question of costs is reserved, possibly for short written submissions from Mr Easton and Mr Moir, with leave for the matter to be canvassed in proceedings. ORDERS 292 The respondent, Western Sydney Automotives Pty Limited is to pay to the applicant, Kylie Louise Benson in Matter Number IRC 5672 of 2004, an amount of compensation equivalent to eight weeks salary of $600 per week, that is an amount of $4,800 gross, within twenty-one days of the release of this decision. J P Murphy Commissioner 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.