TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Australian Municipal, Administrative, Clerical and Services Union
(T13013 of 2007)

and

Women's Karadi Aboriginal Corporation

Industrial dispute - termination of employment - serious misconduct - application dismissed

REASONS FOR DECISION

[1] On 7 September 2007 the Australian Municipal, Administrative, Clerical and Services Union (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Women's Karadi Aboriginal Corporation (Karadi), in respect to the termination of employment of Melinda Mansell.

[2] This matter was listed for hearing (conciliation conference) on 20 September, 5 October and 16 October 2007, and further listed for hearing on 31 October, 1 November and 5 November 2007. Mr M Swanton (20/9/07, 5/10/07, 16/10/07) and Mr R Grueber, solicitor, Ogilvie Jennings (31/10/07, 1/11/07, 5/11/07) appeared for the union. Mr D Hodgson, of the Tasmanian Chamber of Commerce and Industry Limited (20/9/07, 5/10/07) and Mr J Zeeman, solicitor, Zeeman & Zeeman (5/10/07, 16/10/07, 31/10/07, 1/11/07, 5/11/07) appeared for the respondent.

Overview

[3] Karadi is an organisation funded by Commonwealth and State Government grants. The objectives of the organisation include the provision of resource information in a range of areas, the development of aboriginal women's networks and the provision of an effective and supportive infrastructure that responds to the needs of the community.

[4] Ms Mansell was employed as Manager of Karadi on 13 February 2006. She had previously held the honorary position of Treasurer for a period of two years.

[5] At the time of appointment Ms Mansell was a Commonwealth public servant. (CentreLink). The initial appointment was for a period of 12 months, during which Ms Mansell was on unpaid leave of absence from the Commonwealth. The initial contract was followed by a number of very short-term contracts during which Ms Mansell's future role was negotiated. The Governing Committee (the Committee) and Ms Mansell subsequently agreed to a three-year contract. It would seem that this contract was never signed. However nothing turns on this as both parties agreed that a three-year contract was in place.

[6] Shortly thereafter Ms Mansell resigned from the Commonwealth, as the unpaid leave of absence could not be extended.

[7] In July 2007 Ms Mansell went on a period of leave. On the evening prior to her return to work a member of the Committee (Luke Maynard) visited Ms Mansell at her home. Mr Maynard advised that Ms Mansell was suspended on pay whilst an independent investigation was conducted. She was handed an undated letter, which read:1

"Dear Melinda

It has recently been brought to my attention that there may be an anomaly with a number of expense reimbursement claims recently lodged by you.

As a consequence of this matter having been brought to my attention, as chairperson, it is my responsibility to have this matter clarified and I have decided to appoint Mr Keith Scott of CaseAction to conduct an independent investigation of relevant matters.

You will have the opportunity to participate in this process, and Mr Scott will shortly be in contact with you in that regard.

If you have any questions in relation to this process, please direct them to Mr Scott who can be contacted on 62369878.

Yours faithfully

Vicki Wills
Chairperson
Women's Karadi Aboriginal Corporation"

[8] Whilst there was a range of peripheral issues, the key allegation concerned a credit card transaction in December 2006 for which Ms Mansell, seven months later, claimed reimbursement. The transaction was for a legitimate Karadi activity. However the transaction had been made using a corporate credit card in the name of a former finance officer (Wendy Moore), who had left the employ of Karadi in October 2006.

[9] There is no dispute that the corporate card was used. However Ms Mansell's evidence was that it was a simple mistake in that she believed she had used her own private credit card, when the merchant had declined her own Karadi corporate card. As soon as this was brought to her attention, Ms Mansell repaid the amount she had been reimbursed.

[10] Mr Scott of CaseAction interviewed a number of past and current staff members, including Ms Mansell, together with the Committee Chairperson, Ms Wills.

[11] The CaseAction report was presented to the Committee on or about 4 September 2007.2

[12] Under cover of correspondence dated 20 September 2007, Ms Mansell was provided with a copy of the report. The letter read:3

"Dear Melinda,

CaseAction have provided a report in relation to Credit Card use and reimbursement. The report specifically addresses the foregoing issues. A copy of this report has been provided to you.

The Governing Committee have reviewed the report, which indicates that you have claimed reimbursement for items purchased on a Karadi Credit Card.

The Governing Committee requests that you respond to these allegations by close of business on Friday 28^th of September 2007. You may wish to respond to the allegations in writing. Alternatively, you and your Union representative can meet with a member of the Governing Committee and our representative. Could you please contact us as soon as possible if this is your preferred option. My phone number is ....

Contact details for the Governing Committee are as follows:

Women's Karadi Aboriginal Corporation
Governing Committee
PO Box 523
Glenorchy TAS 7010

Members of the Governing Committee will then meet to discuss what action, if any, will be taken. Please note these are serious allegations and if proven could lead to termination of your employment.

Yours Faithfully,

Vicki Wills
Chairperson
Women's Karadi Aboriginal Corporation"

[13] Ms Mansell provided a response in writing on 2 October 2007.⁴

[14] The Committee considered the CaseAction report and Ms Mansell's response at a meeting on 6 October 2007. The minutes of that meeting record the following:5

"The GC quorum came to the decision to terminate the employment of the Manager due to the findings of Case Action Investigation and the Managers response. The GC believed that the explanation for the reimbursement was not adequate and that there were discrepancies that demonstrated misconduct and poor judgement. It was agreed that termination of employment to be effective immediately and summarily notice by letter."

[15] Correspondence dated 10 October 2007 was sent to Ms Mansell in the following terms:6

"Dear Melinda

Women's Karadi Aboriginal Corporation

We confirm your employment with the Women's Karadi Aboriginal Corporation is terminated effective from 10 October 2007.

We enclose a schedule of your outstanding entitlements. These funds will be deposited in your bank account on 10 October 2007.

Could you please return all property in your possession belonging to the Women's Karadi Aboriginal Corporation to Jennifer Nichols, including but not limited to:

Could you please telephone Jennifer on .... by close of business on 12 October 2007 to arrange an appropriate time and location for the return of all property.

Yours sincerely

Governing Committee of the Women's Karadi Aboriginal Corporation"

[16] The Award applicable to Ms Mansell is the Community Services Award. Relevantly, Clause 3(a) of Part II reads:

"3. TERMINATION

(a) Employment shall be terminated by 2 weeks' notice given by either side or by the payment or forfeiture of 2 weeks' wages, as the case may be. This shall not affect the right of the employer to dismiss an employee for serious misconduct or serious neglect of duty, in which case wages shall be paid up to the time of dismissal only."

[17] This is a summary dismissal and the onus falls to the employer to prove the existence of serious misconduct on Ms Mansell's part.

[18] Mr Grueber for the applicant submitted:7

"Ultimately, the submission that will be made by the union, by the applicant, is that there was no valid reason for the summary dismissal; that any matters that may have concerned the committee, even if proved to be correct, were not sufficiently serious to warrant summary termination. The submission will also be made that the termination was unfair, in that Ms Mansell was not afforded procedural fairness. She was not provided with a warning, she was not provided with sufficient opportunity to address specific concerns and certainly not warned that she was at risk of termination."

Evidence

[19] Sworn evidence was taken from the following:

Fantastic Furniture Transaction

[20] On 18 May 2007 Ms Mansell visited Fantastic Furniture in Moonah with her daughter. Her evidence was:8

"Yes, I'd gone to purchase some cupboards for my kitchen. I purchased the cupboards, went back out to the car, was driving down the road. I actually live in Lenah Valley and I purchased them in Fantastic Furniture in Moonah, and my daughter actually said to me, "What are you buying, what's Karadi want cupboards for?" and I sort of looked at her and I said, "Well, they're for home" and she said, "I think you used your work card, ..."

[21] Ms Mansell said she pulled over and telephoned the Committee Chairperson Ms Wills. On Ms Wills' advice, Ms Mansell returned to the store and attempted to reverse the transaction. However, this was apparently not possible. Ms Mansell also telephoned Ms Coad, and further discussed the matter with Ms Coad on the next working day. Whilst the mechanism for repayment was not, on the evidence, entirely clear, there can be no doubt Ms Mansell agreed to appropriately reimburse Karadi.

[22] Ms Coad accepted that the transaction was an accident.9

Cooley's Hotel Transaction

[23] During the second week of July 2007 Ms Mansell presented Ms Coad with two receipts relating to a Cooley's Hotel transaction on 20 December 2006 in the amount of $368.20. The receipts related to a function for community elders, a legitimate Karadi activity.

[24] The first receipt was from Ms Mansell's corporate credit card, which had been declined. The second receipt was from another credit card, which Ms Mansell said was her own personal credit card. Noting that numbers on the second receipt were different to that of Ms Mansell's corporate card, Ms Coad arranged for a reimbursement to Ms Mansell, after first deducting an amount owed ($228) for the Fantastic Furniture transaction referred to above.

[25] Later Ms Coad discovered that the second receipt related to the corporate card in the name of former employee, Wendy Moore (Moore card).

[26] Ms Coad's evidence was:10

"Have you ever spoken to Vicki Wills in respect to the reimbursement of any item made to Melinda Mansell?---Yes.

In respect to what item did you speak to Ms Wills about?---The Cooley's account.

The Cooley's account being- - -?---The Cooley's reimbursement.

Being the amount of ?---$368.

Why did you telephone - why did you speak to Ms Wills?---Because I had discovered that it was Wendy Moore's charge card that it was charged to after I'd paid the reimbursement.

And you discovered that how?---I recognised numbers on the slip. Because I have a memory for numbers and I recognised the numbers and couldn't figure out where I recognised them from, so I went back through old accounts and found the numbers of the other charge cards and found that it matched Wendy's."

[27] Ms Coad's evidence was that her duties included the reconciling of credit card statements with receipts.

[28] Ms Coad commenced employment at the end of January 2007. She cancelled the Moore card in February 2007 but did not at that time check previous statements. Ms Coad said Ms Mansell had told her the Moore card had been destroyed. Later she said:11

"Now, having learnt that the card had been used after Wendy Moore had left and at a time - so I withdraw that. But after Wendy Moore had left, did you go to Melinda Mansell and say, "The card's been used"?---No, I didn't discover it until after I'd discovered the Cooley's receipt.

Thank you. And did you go to Melinda Mansell and say, "Look, this payment has actually been made on Wendy Moore's card, not on your card"?---No.

Why didn't you do that?---Because I was angry and because I thought in a normal situation I would go to my boss, but because it was my boss I went to the committee.

Why were you angry?---That it had happened.

That an error had been made?---No, that someone had charged something on

Wendy's card after Wendy had left.

So you immediately thought that it wasn't an error, that it was an intentional

act?---Yes.

And an intentional act to defraud the organisation?---Yes.

And you became angry?---Yes.

Okay. And you've maintained that anger towards Ms Mansell?---No.

You're not angry any more?---No."

[29] It was this incident which led the Committee to appoint an independent investigator (CaseAction).

[30] By way of background Ms Mansell said that at the time Karadi was operating in very stressful circumstances. At the time of her appointment Karadi was in breach of Commonwealth requirements, which required a significant effort to rectify. There were difficulties with the constitution of the Committee and the AGM, which should have been held in September 2006, was delayed until February 2007. There were a number of staff resignations leading to a dramatic increase in workload and hours worked on Ms Mansell's part. On numerous occasions Ms Mansell was forced to use her own funds for Karadi activities, and subsequently seek reimbursement. This latter point was confirmed by other witnesses. There were also other personal circumstances at the time that added to the stress experienced by Ms Mansell.

[31] There is no dispute that Ms Mansell first attempted to use the corporate card issued in her own name for the Cooley's transaction. This was declined because the credit limit would have been exceeded. She said:12

"Okay. Can you say why you would have used your own card in that circumstance?---Through November and December when the organisation was in the upheaval it was with the AGM happening and everything, as I stated, with myself still holding the treasurer's role and being the manager, and the staff that had moved on, there was only myself that was there as a signature, and we had Tracy for one day a week. Sometimes she'd come in for an extra half day if it was really, if she could. So it was very, very difficult. Lorraine and I had both actually purchased quite a few items over a period of time that we had to then wait until Tracy was back in the next week to do the pays, to be reimbursed for, and it was getting very frustrating, and financially the organisation wouldn't have been able to run if, you know, we hadn't used our own personal funds.

Thank you. But why would you use your personal funds rather than using your corporate credit card?---My corporate credit card only had a thing of $500 on it. So if that was, like if that had reached its amount and if there was no petty cash, then we didn't have any other choices. I couldn't get Lorraine to sign a cheque because she wasn't a signature."

[32] Ms Mansell stated that she believed she then used her own personal credit card (ANZ). She said she would have signed her own name.13 Whilst she did not have a recollection of the transaction, Ms Mansell later acknowledged that it was possible she signed the card using another name.

[33] Ms O'Donnell's evidence was that she trained staff in the use of the EFTPOS facility. She said, "The most important thing, obviously, is to make sure you check the signatures".

[34] In explanation of the seven-month delay before the claim was submitted for reimbursement, Ms Mansell said:14

"And you, I think, waited about seven months, or thereabouts, before you made a claim for reimbursement?---As I say, I did lose the receipt and I ended up finding it tucked under my computer when I was cleaning up and tidy my desk before I was going on leave.

It was for the sum of, how much, do you recall?---I said I think it was about 360, or something like that.

You weren't too troubled about claiming a reimbursement for that amount of money?---I actually forgot about it a few times. I do have, as I said, I had, on that occasion, doubled - I would forget about things and then it sort of come back to me and I would look for it again then, something would happen, I would get busy and I would forget about it, so it's not uncommon for me to take a period of time to - to look for something."

Previous Use of the Moore Card

[35] Ms Moore's evidence was that on her departure from Karadi, she had either left the card in the safe or handed it to Ms Mansell. She had previously obtained from Westpac the necessary paperwork to transfer the card to the new finance officer. This was passed on to Ms Mansell.

[36] Ms Moore agreed that it was not unusual for other staff to use the credit card for telephone transactions and that it had been common practice for staff to incur Karadi expense from their own resources and subsequently seek reimbursement.

[37] Ms Moore said she has not used the credit card since her departure nor had she given anyone else permission to use the card.

[38] There is no dispute that Ms Webb used the card on one occasion subsequent to Ms Moore's departure, for the purchase of flowers over the telephone. Ms Webb said this was done at Ms Mansell's direction although Ms Mansell had no recollection of such direction.

[39] Ms Mansell denied that she had used the Moore card on any occasion other than the Cooley's Hotel transaction.15

[40] There were two other transactions that were the subject of a considerable amount of evidence.

[41] On 8 December 2006 the Moore card was used for a transaction at Woolworths16 ($218.72) and a separate transaction at Chickenfeed17 ($109.98). Both transactions were for legitimate Karadi activities.

[42] Ms Mansell denied that she was responsible for the transactions.18

[43] Ms Mansell said that Ms Webb had undertaken the transactions. She recalled Ms Webb showing the Chickenfeed purchases (Christmas decorations) to the staff in the office. Ms Mansell was present and working on a submission at the time. Later that day Ms Webb told her that she had used the Moore card. Ms Mansell said:19

"Do you recall the substance of the words that Lorraine Webb said to you in respect to using the credit card issued to Wendy Moore?---I don't recall all of the discussion but I certainly do - I very clearly got, you know, the understanding from Lorraine that stuff needed to be purchased. We were in quite a bind and that as it was a corporate card, yes, she had used it.

Because you didn't go to Chickenfeed or Woolworths on that day with Lorraine Webb, did you?---No, I was in the office with Tracy.

So, just again in respect to what Lorraine Webb said to you, can you just tell me how, or what she said, or words that - the substance of the words in respect to her use of Wendy Moore's credit card?---She stated that because we didn't have petty cash and that sort of stuff, we needed it - that we needed the items, it was for the organisation and that, as a corporate card she had used it."

[44] Ms Mansell was not critical of Ms Webb. She said:20

"Do you think that that is an inappropriate use of a credit card?---Not in the circumstances that the organisation was in at the time, no.

And what were those circumstances?---I very clearly stated the circumstances. We didn't have - we didn't have enough signatories. It was a finance officer only there one day a week. People were spending their own money; having to wait the whole week for the money to be reimbursed back. The organisation, without having the AGM finalised was in a form of upheaval and at the end of the day we had to provide services.

We had to continue to make the organisation run. The Chair had been well and truly informed that this AGM meeting be finalised. There are circumstances that I believe certainly would have to prevail in this - in this instance. In this instance, but in what instance?---In the use of this card for, basically, the emergency-type expenditure."

[45] It was however as a consequence of these transactions that Ms Mansell decided to remove the card from the safe and keep it in her possession. She said:21

"How did you come to have Ms Moore's credit card in your possession?---Wendy had left her credit card in the safe, which people knew where the key was, so when it became apparent that Lorraine had used the card, I did remove the card from the safe, and I informed Vicki Wills, the chair, at her place actually, sitting outside having a coffee and a smoke, and I informed Vicki that Lorraine had used the card, that it had been for organisation purposes, and once again stressed the fact that we needed to get this AGM sorted out because it was getting too difficult to operate.

Right. This was Lorraine Webb?---Yes, yes.

And can you say what she used the card for?---There was items for our Karadi Christmas lunch that, we have a community Christmas lunch.

Thank you. And can you say where those items were purchased from?---Chickenfeed and Woolworths had some shopping items."

[46] And later:22

"So in your view it would be appropriate to use Wendy Moore's credit card after she had left employment?---In my view, with the situation the organisation was in financially then, in that it isn't a personal credit card, it is a Corporation's credit card, if there was an emergency, or some such thing, then I would certainly believe that there certainly are some exceptions and I certainly know that when I spoke to the Chair about this card being used, which was at her residence, she basically stated that, you know, normal respect - in normal respects it shouldn't happen but very clear in the fact that the organisation was in quite a difficult time, which is why I also stated in my report it's Keith's, the independent investigator, that the issue of Lorraine using the card was for an organisation purpose. And due to that and due to the situations that were around the situation, no, I wouldn't see that as - as being something that Lorraine should have been stepped over, or anything else."

[47] Ms Wills denied that the matter had been raised with her. Her evidence was:23

"Do you recall Ms Mansell ever raising an issue - sorry, the issue of the use of the Karadi corporate credit card issued in the name of Wendy Moore whilst outside at your residence while having a cup of coffee?---No, I don't.

Do you recall Ms Mansell ever saying to you that - I withdraw that. Do you ever recall giving Ms Mansell permission to use the corporate credit card of Karadi issued in the name of Wendy Moore?---I certainly did not do that."

Ms Webb said Ms Mansell and herself had undertaken the Woolworths and Chickenfeed purchases together. Her evidence was:24

"You attended Woolworths - can you please tell me which Woolworths store you attended with Melinda Mansell?---It was the Glenorchy - it was the one in Glenorchy in Glenorchy Central.

And can you please tell me who - sorry, what Chickenfeed store you attended with Melinda Mansell?---The Glenorchy Central one.

And you saw the credit card in the name of Wendy Moore on that occasion?---Yes, I did.

Did you have any discussion with any person about Wendy Moore's credit card on or about that date?---Yes, Melinda had told me before we had to go shopping that day that she would be using Wendy Moore's card.

And what did you say, if anything?---I don't recall saying anything.

Do you recall Melinda Mansell saying anything else?---The reason was her card was maxed out and she had asked me not to reveal it to anyone on the committee.

Her card - what did you understand to be her card?---Her corporate credit card.

In the name of Karadi?---In the name of Melinda Mansell.

Being the Karadi corporate credit card?---Yes."

[48] Ms Webb said that Ms Mansell made the transactions at both Woolworths and Chickenfeed.25

[49] The merchant receipt relating to the Woolworths purchase includes a reference to a Frequent Shopper number.

[50] Ms Mansell said she had not had a Frequent Shopper Card "for a long time".26 Under cross-examination she said it would be "well over 12 months" since she had used the card.27 Ms Mansell agreed that on her evidence it was "impossible" that her frequent Shopper card could have been used at Woolworths on 8 December 2006.28

[51] However evidence produced by the respondent proves conclusively that Ms Mansell's Frequent Shopper card was used in the Woolworths transaction.²⁹

[52] The Chickenfeed receipt had clearly been signed by someone although the signature was virtually illegible. Ms Moore's evidence was that it was not her signature.³⁰

Findings

[53] This matter concerns a summary dismissal whereby the respondent has the onus of proving, not just the existence of a valid reason for termination, but also that the conduct was of such a nature to constitute serious misconduct.

[54] Mr Grueber described the act of summary dismissal as a "powerful tool". In some cases the outcome goes well beyond the loss of employment, but also impacts on the worker in other ways, including reputation. This, Mr Grueber submitted, was particularly pertinent in the instant case, given Ms Mansell's position in the relatively small Tasmanian aboriginal community, together with having given up permanent public sector employment to take up the position with Karadi.

[55] Mr Grueber referred to a number of authorities. In North v Television Corporation Limited, Smithers and Evatt JJ observed:31

"It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.

This situation would arise if there were conduct inconsistent with the fulfilment of the express or implied conditions of service."

[56] In Blyth Chemicals v Bushnell, Dixon and McTiernan JJ said:32

"Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal (Boston Deep Sea Fishing and Ice Co. v. Ansell (1); English and Australian Copper Co. v. Johnson (1); Shepherd v. Felt and Textiles of Australia Ltd. (2)). But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises."

[57] In Rankin v Marine Power International Pty Ltd, Gillard J said:33

"The acts or omissions of the employee which constitute the breach may amount to misconduct, disobedience, incompetence or negligence. No doubt, misconduct would cover a multitude of sins. By way of example, conduct which results in a conflict between the employee's interest and duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the confidence between employer and employee, may ground a right to dismiss without notice. See Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81 per Dixon and McTiernan JJ."

"The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature."

[58] Mr Zeeman submitted that there were two counts of serious misconduct.

[59] The first count related to the action by Ms Mansell in claiming reimbursement for a transaction that had been made on a Karadi corporate credit card some seven months previous (The Cooley's Hotel transaction).

[60] The second count was that Ms Mansell made a false statement to the independent investigator (Mr Scott). Specifically, Ms Mansell told Mr Scott that Ms Webb had made the purchases at Woolworths and Chickenfeed on 8 December 2006.

[61] It must be said from the outset that the three transactions in question all related to legitimate Karadi activities. Mr Zeeman made it clear that the Committee did not terminate Ms Mansell's employment because she had used the Moore card, even though that was arguably in breach of Karadi credit card policy.

[62] Ms Mansell's position is that she genuinely thought the transaction had been made on her own personal card, and the subsequent claim for reimbursement was made in error. The matter was rectified as soon as it was brought to her attention.

[63] Mr Grueber submitted:34

"And I'd submit that, in the circumstances, having regard to the circumstances that Ms. Mansell has described concerning the use by her of her own money, with subsequent reimbursement, the use of the Karadi credit cards as organisation credit cards, as opposed to necessarily personal credit cards and the work pressure that she was under at the time, it's not surprising that she might have had a lapse of memory, and that she should be forgiven for that."

[64] And later:35

"Now, in my submission, if Ms Mansell had set out to defraud Karadi, it was a particularly inept method of doing so. It was a circumstance which would inevitably have given rise to the reimbursement being found not to be proper, through the processes of reconciliation and the financial reporting of the organisation. It would have been apparent on the face of the credit card document that it related to Ms Moore's card. All in all, it is a circumstance which is far more consistent with an error in good faith, than an intentional defrauding of the organisation."

[65] There can be no doubt in my mind that Ms Mansell made the transactions in Woolworths and Chickenfeed using the Moore card. Further it would seem beyond doubt that she attempted to sign the receipt using Ms Moore's name.

[66] To the extent that Ms Mansell repeatedly denied any involvement in these transactions, her evidence can only be viewed as being quite unsatisfactory. It follows that to the extent of any inconsistency, the evidence of the other witnesses is to be preferred to that of Ms Mansell.

[67] To point is the conflict in evidence as to whether Ms Wills was made aware of the transactions. I conclude that she was not.

[68] Similarly, Ms Mansell's explanation as to why she transferred the card from the safe to her own possession simply does not stack up. Indeed there is simply no logical explanation as to why the card was not destroyed or cancelled, and a new card issued in the name of the new finance officer.

[69] On the balance of probabilities a conclusion that Ms Mansell improperly sought to gain a financial advantage is most likely.

[70] After due consideration of the CaseAction Report, together with Ms Mansell's response, the Committee concluded that "the explanation for the reimbursement was not adequate and that there were discrepancies that demonstrated misconduct and poor judgement". In my view that conclusion was reasonably open to the Committee.

[71] The remaining question is whether the behaviour was of such a nature as to constitute serious misconduct.

[72] In Concut Pty Ltd v Worrell, Kirby J said:36

"It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal."

[73] I conclude that the behaviour of Ms Mansell was quite inconsistent with the essential element of trust between an employer and employee. Arguably this absence of trust is even more profound given that Ms Mansell was the manager of the organisation. I find that the behaviour of Ms Mansell strikes at the heart of the employment contract and thus constitutes serious misconduct.

[74] I turn now to a range of issues under the broad heading of procedural fairness and a fair go all round.

[75] It was submitted that the constitution of the Committee created a real danger of either apprehended bias or even actual bias. At the heart of this submission was that, Mr Maynard aside; the Committee was made up of two sets of sisters. Further, Ms Coad, who lodged the complaint against Ms Mansell, is the daughter of Ms Joan Wright, a member of the Committee.

[76] I agree that a structure such as this does potentially give rise to an unfair outcome. However there is simply no evidence that the Committee in any way acted improperly or unfairly. Ms Wills declared a pecuniary interest and left the meeting, as did Ms Wright. On the face of it the Committee considered all the material reasonably available and a properly constituted quorum made the decision to terminate Ms Mansell's employment.

[77] Whilst I do have some criticism of some of the delays in the process, there is no reason to conclude that a Committee constituted by persons without a familial relationship, would have reached a different conclusion.

[78] The appointment of an independent investigator was a decision open to the Committee, and given the constitution of the Committee referred to above, a quite sensible approach. Ms Mansell was made aware of the nature of the allegations through her union representative, prior to the first interview with Mr Scott.

[79] It was submitted that the CaseAction report was wide ranging and as such Ms Mansell could not be "patently aware of what is was that she was being asked to respond to". Further, Ms Mansell was not warned that an unsatisfactory response might lead to termination of employment.

[80] I am unable to accept Mr Grueber's submissions on these points.

[81] The letter enclosing the CaseAction report reads, in part:37

"CaseAction have provided a report in relation to Credit Card use and reimbursement. The report specifically addresses the foregoing issues.

...

Members of the Governing Committee will then meet to discuss what action, if any, will be taken. Please note these are serious allegations and if proven could lead to termination of your employment."

[82] Whilst it must be acknowledged that the report went to a number of extraneous matters, there can be no doubt that the Cooley's reimbursement issue was at all times front and centre. Given that this was the first issue addressed in Ms Mansell's written response,38 it is clear that she was aware that this was the key issue.

[83] There is nothing to suggest that Ms Mansell was denied procedural fairness or a fair go all round.

[84] I decline to interfere with the decision of the Committee to summarily terminate Ms Mansell's employment.

[85] The application is dismissed. I so order.

Tim Abey
COMMISSIONER

Appearances:
Mr M Swanton (20/9/07, 5/10/07, 16/10/07) and Mr R Grueber, solicitor, Ogilvie Jennings (31/10/07, 1/11/07, 5/11/07) for Australian Municipal, Administrative, Clerical and Services Union.
Mr D Hodgson, of the Tasmanian Chamber of Commerce and Industry Limited (20/9/07, 5/10/07) and Mr J Zeeman, solicitor, Zeeman & Zeeman (5/10/07, 16/10/07, 31/10/07, 1/11/07, 5/11/07) for Women's Karadi Aboriginal Corporation.

Date and place of hearing:
2007
September 20
October 5, 16, 31
November 1, 5
Hobart

1 Exhibit A5
2 Exhibit R11
3 Exhibit A6
4 Exhibit A7
5 Exhibit A10
6 Exhibit A8
7 Transcript p. 5
8 Transcript p. 25
9 Transcript p. 143
10 Transcript p. 137
11 Transcript p. 139/140
12 Transcript p. 26
13 Transcript p. 78
14 Transcript p. 78
15 Transcript p. 41
16 Exhibit R3
17 Exhibit R1
18 Transcript p. 29
19 Transcript p. 73
20 Transcript p. 70
21 Transcript p. 28
22 Transcript p. 68
23 Transcript p. 148
24 Transcript p. 124/125
25 Transcript p. 125
26 Transcript p. 30
27 Transcript p. 53
28 Transcript p. 51
29 Exhibits R8 and R10
30 Transcript p. 117
31 ALR Vol 11 p. 599 Australian Industrial Court 25/6/1976
32 HCA 49 CLR p. 66
33 [2001] VSC150 21 May 2001
34 Transcript p. 197
35 Transcript p. 200
36 [2000] HCA 64 14 December 2000
37 Exhibit A6
38 Exhibit A7