Unfairly sacked: manager wins $13K payout

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Unfairly sacked: manager wins $13K payout

A manager has won her case for unfair dismissal after the Fair Work Commission ruled that accusations of fraud and deceit were not substantiated.

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A manager has won her case for unfair dismissal after the Fair Work Commission ruled that accusations of fraud and deceit were not substantiated. 

The commission found the woman had a reasonable explanation for accounting irregularities, and there was some truth in her allegation she was potentially made a scapegoat. 

Background 


Ms W (the applicant) worked as a manager for TRG Administration (the respondent) from June 2011 until her dismissal in August 2017. 

TRG Administration is a business that provides administrative support to The River Group of Companies. 
 
It dismissed Ms W for 'deceit', associated with “doctoring the books”.  In various communications with the commission, TRG Admin also alleged poor performance and serious misconduct on the part of Ms Ward, "variously described as deceit, theft and fraudulent manipulation of profit and loss data".
 
The applicant denied the accusations and claimed she was made a scapegoat for issues with supplier invoices.
 
Ms W was given a termination letter by the wife of Mr H, who was a director of several companies within the River Group.

Ms W sought an unfair dismissal remedy. 

The law 


If a person is dismissed, and that dismissal is harsh, unjust or unreasonable, then it is unfair (s385 of the Fair Work Act). There are several criteria for setting out whether a dismissal is harsh, unjust or unreasonable and these include whether or not there was a valid reason, whether the person was notified of the reason and whether the person being fired was given an opportunity to respond (s387).

Considerations 


In addition to claiming that the applicant behaved fraudulently, the respondent also argued that:
  • Ms W had not served the minimum time requirement for protection under the FW Act 
  • the respondent was a small business and Ms W’s dismissal was consistent with the small business fair dismissal code, and
  • alternatively, that the dismissal was not harsh, unjust, or unreasonable.

Was TRG Admin a small business? 


An employer is a small business if it employs less than 15 people. In calculating the number of employees an employer has, regard is given to any associated entities (in this case the relationship between the respondent and The River Group). 

The commission found TRG Admin was merely established as an entity for payroll purposes. The termination letterhead was that of the River Group and the letter was signed by Mr H. The presence of Mr H’s signature evidenced that he exercised control over TRG Admin. This link led to a finding that TRG Admin was an associated entity of the River Group. Therefore, it was not a small business as, overall, it had more than 15 employees. 

Did Ms W serve the minimum employment period? 


The commission found that Ms W worked for three related entities and served the minimum period of employment. It was held that she worked for the respondent from June 2011, not February 2017 when TRG Admin was setup. The commission noted that even if TRG Admin was not an associated entity, there was a transfer of business from the River Group and TRG Admin chose to recognise service with The River Group. 

Was Ms W unfairly dismissed? 


The commission noted that Ms W was dismissed for reasons variously described as deceit, theft, and dishonesty. 

Deputy president Asbury found that Ms W was able to give an explanation about accounting irregularities. The respondent did not offer a counter response. 
 
The commission also found some truth in the applicant’s argument that she was made a scapegoat. 

“The overwhelming impression I gained was that Mr H decided that he wanted to remove Ms W and set about finding a basis upon which to do so. I also accept that it is probable that there is some truth in Ms W’s allegation that she was being made a scapegoat…” said the deputy president.
 
The commission found the reasons for dismissal were not substantiated. It held that there was not a valid reason for the dismissal and further that she was not given a chance to respond to many of the allegations.

Order 

The commission ordered the respondent pay Ms W 12 weeks' pay as compensation, which amounted to $13,080.

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