Boss bullies dismissed worker with ‘intimidatory’ allegations

It is not uncommon for some bosses to bully or intimidate casual workers in order to force their dismissal. Or even to pay them less or strip away their workplace rights. Often, bosses may take advantage of the inexperience of young casual workers and their lack of knowledge of certain workplace laws. They may overstate the gravity of the worker’s improper behaviour or misconduct to justify dismissing them.

Casual worker wins unfair dismissal despite ‘intimidatory’ allegations

This is what happened in the recent unfair dismissal case Ms Deanna Giblin v Coogee Legion Ex-Service Club Ltd [2023]. The case involved Deanna Giblin, who started working for Coogee Legion Ex-Service Club as a casual customer service attendant in October 2021. She was in her final year of university and had a stellar record at the club, located in the Sydney suburb of Coogee. During her time there, Ms Giblin had been awarded employee of the month three times. This saw her promoted to duty manager after only ten months.

Club discovers stock is missing after audit

In early 2023, the club performed an annual audit of its stock through an external auditor. And in April, the results of the audit showed that the club was missing a vast quantity of stock. This saw the club’s managers organise a meeting with staff to ensure they were aware of correct procedures when handling stock. The managers also reminded staff about the club’s policies regarding consuming drinks or food without paying.

“…in line with the food & beverage policy, if you are found to be eating chips or drinking a canned drink, and cannot provide the receipt, this is considered theft and will be dealt with according to the Staff Handbook,” the club’s policy stated.

Club catches casual workers drinking on CCTV footage

Given the amount of stock missing, the club soon undertook a second external audit. This revealed even more missing stock, which prompted the club’s managers to review CCTV footage of staff. The managers reviewed footage of a particular night when a number of employees including Ms Giblin were seen drinking.

Critical to this unfair dismissal case was that the managers noticed that Ms Giblin had paid for two drinks that she consumed. However, she consumed a third which did not show up in the transaction records. The other employees had also consumed drinks that they hadn’t paid for. Some had drunk up to five beverages and had pretended to process the transactions by holding their phones up to pay.

“Theft and fraud:” Casual workers are suspended

Following these revelations, on 28 April 2023 the club suspended all the employees found to have not paid for their drinks. One of the employees handed in their resignation that night. All the other workers were invited to one-on-one meetings where they were accused of theft. They then each received a show cause letter outlining the allegations against them.

In her show cause letter, Ms Giblin was accused of “theft and fraud.” Specifically, the letter alleged that on 18 April 2023 she had been at the meeting where employees were notified of the club’s missing stock following the audit. And that Ms Giblin had not given any reasons for the stocking being missing. Also, that on the night of 18 April 2023, she was seen on CCTV footage consuming drinks she had not paid for.  

Casual worker told to resign or face dismissal

In her show cause letter, Ms Giblin denied the allegations of theft and fraud. She claimed that she had unintentionally not paid for the drink. Ms Giblin also apologised for her mistake. However, after only a few minutes of deliberation, the club’s management told her that her response to the allegations was not believable. The club then offered her the option to resign. And if she did not, informed her that she would be dismissed.

“All of the allegations of theft were substantiated”

Ms Giblin spent a few days considering the option to resign, but ultimately chose not to. The other workers, however, had taken the option to resign. Unbeknownst to Ms Giblin, the club had met with one of the other workers, who backed up Ms Giblin’s story. However, this did not matter in the end. On 1 May 2023, the club decided to terminate Ms Giblin’s casual employment. In her termination letter, the club stated that “all of the allegations of theft were substantiated.”

The club also stated in the letter that it found Ms Giblin’s response to the allegations “to be dishonest.” It further outlined that it had “lost trust and confidence in you to perform your senior role at the Club.” And the club informed Ms Giblin that she was being dismissed for “theft” and “dishonesty.”

Ms Giblin rejected from another casual job

Following her dismissal from the club, Ms Giblin attempted to find a new position. She applied for a number of hospitality roles in the area and secured an interview at the Coogee Diggers Club. The interview went well and she was asked to provide two references from the Coogee Legion Ex-Service Club. One of the referees provided a good reference. However, the other referee did not, stating that he would not hire Ms Giblin again.

Coogee Diggers Club subsequently sent an email to Ms Giblin saying that it could not offer her employment based on this reference. Feeling she had been unjustly treated by the Coogee Legion Ex-Service Club, Ms Giblin filed an unfair dismissal application with the Fair Work Commission.

“Unconscionable:” Employer slammed by Fair Work Commission

At Ms Giblin’s unfair dismissal hearing, the Fair Work Commission did not hold back in criticising the club. In particular, it called out the club for its “unconscionable” and “intimidatory” letter in which it accused Ms Giblin for theft and fraud. The Fair Work Commission also took issue with Clubs NSW, which had written the letter. It was criticised for “unprofessional” conduct in characterising Ms Giblin’s behaviour as criminal.

“I agree that the use of the words ‘fraud’ and ‘theft’ by the club in relation to [the casual worker] were intimidatory, especially when directed at an employee in the early stages of their career,” the Fair Work Commission stated.

Club deliberately intimated worker

In fact, the Fair Work Commission stated its belief that the club purposely included the words “fraud” and “theft” in the letter to make it seem like Ms Giblin had engaged in “criminal behaviour.” It stated that such words have particular legal meanings and that an employer must take “great caution” to determine if an employee has committed a crime.

The Fair Work Commission said that it was “unconscionable” for the club to accuse Ms Giblin of a crime. Particularly when she had explained that her actions were unintentional and that there was evidence to back this up. This included not only her stellar record at the club but also the testimony of her colleague, which the club did not tell Ms Giblin about.

Multiple procedural fairness deficiencies

The Fair Work Commission also identified several procedural fairness deficiencies that contributed to Ms Giblin’s termination being unfair. This included several in Ms Giblin’s show cause letter, which accused her of “fraud” without outlining any specifics of the allegation. The letter also stated that she had never provided any reasons for the audit discrepancies. But the club had never actually requested her to do so.

The letter also made it seem like Ms Giblin had committed more wrongdoing than actually took place. For example, it outlined that she had not paid for “drinks” when she had actually only not paid for a single beverage. Also, the letter used the phrase “allegations of theft” which conveyed that there were several acts of criminal misconduct.

The club’s investigation into Ms Giblin’s allegations was also found to have numerous procedural faults. This included that it had not provided or informed her about the CCTV footage prior to dismissing her. And that it had made enquiries about her conduct only after it had decided to terminate her employment. The Fair Work Commission also called the club out for treating her the same as the other workers, who had consumed up to five drinks without payment.

Clubs NSW was not spared from criticism

The Fair Work Commission also directed further criticism at Clubs NSW, stating that it had made “baseless” claims that Ms Giblin had been guilty of criminal behaviour. These claims were particularly damaging as they had the potential to have an “adverse impact” on her ability to find future work in nursing, which she was studying at the time.

Clubs NSW’s “liberal” use of the term “received stolen goods” to describe Ms Giblin’s consumption of the free beverage was also called out. The Fair Work Commission noted that Clubs NSW only began using this expression during the unfair dismissal hearing. And that such an expression is contained within the NSW Crimes Act 1900, which means that they were attempting to unjustly criminalise Ms Gilblin’s actions.

The Fair Work Commission expressed disbelief at how Clubs NSW thought Ms Giblin’s conduct could have amounted to the criminal act of receiving stolen goods. It characterised its use of the term as “unprofessional” and said there was simply “no basis” for its use in this situation.  

Fair Work Commission finds no valid reason for dismissal 

Considering Ms Gilblin’s consumption of the free drink, the Fair Work Commission characterised her actions as “opportunistic” at worst. It was found that she had not planned to consume the free drink and that she had been truthful during the workplace investigation.

The Fair Work Commission accepted that Ms Giblin had consumed a drink without paying for it, breaching the club’s policies. However, it did not accept that she had intentionally not paid for it. It was highlighted that during its meeting with Ms Giblin, the club had not told her that it had made accusations against her based on the CCTV footage. Nor did it show her the footage during the meeting or discuss if her consuming the drink was intentional or not.

Ultimately, the Fair Work Commission found that Coogee Legion Ex-Service Club did not have a valid reason to terminate Ms Giblin’s casual employment. Also, that she had been denied procedural fairness and that there were multiple other reasons why her termination was harsh, unjust and unreasonable.

“In the circumstances, I find that the financial impact of the dismissal on [the worker], the incorrect and inappropriate characterisation of her conduct as criminal. and The adverse impact on her employment prospects caused by the dismissal are all matters which weigh in favour of a conclusion that the dismissal was harsh, unjust or unreasonable,”

stated the Fair Work Commission. A further hearing will determine Ms Gilbin’s financial compensation.

Have you been bullied by your boss? Contact us today.

If your rights as a casual worker have been violated, reach out to A Whole New Approach. Our team of workplace advisors are ready to assist you in taking action through the Fair Work Commission. We are not lawyers, we are the nations leading workplace advisors and commentators. Do not tolerate any breaches by your employer. Whether it is unfair dismissal, harassment, discrimination or any infringement on your casual rights.

If you believe you have been unfairly dismissed, contact us immediately. You only have a 21-day window from your dismissal date to file a claim. Through a complimentary and confidential consultation, our team will guide you through the claims We will process.and equip you to present a strong case to the Fair Work Commission. Benefit from our no win, no fee service and leverage our three decades of experience.

Call us today at 1800 333 666 for an obligation-free discussion about your concerns

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