Alison Wilks v Inverell East Bowling Club Ltd

[2019] FWC 768

[2019] FWC 768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alison Wilks
v
Inverell East Bowling Club Ltd
(U2018/11379)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 14 FEBRUARY 2019

Application for an unfair dismissal remedy; termination of employment consistent with small business fair dismissal code; application dismissed.

[1] Alison Wilks (the applicant) made an application on 2 November 2018 for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (the FW Act) in relation to her dismissal on 25 October 2018 by Inverell East Bowling Club Ltd (the Club, the respondent).

[2] The application was heard in Armidale on 31 January 2019. Ms Wilks represented herself. The respondent was represented by L Pike, from Clubs NSW. The applicant filed a statement on her own behalf. 1 Statements were filed on behalf of the respondent from:

•  Nathan Hughes (Club General Manager); 2

•  Andrew Hobday (Club Director); 3 and

•  Darrel Kachel (Club Chairman). 4

[3] It was not in contest that the application was made within the prescribed period, 5 that the applicant was protected from unfair dismissal,6 and that the dismissal was not a case of genuine redundancy.7

[4] The respondent submitted that it was a small business and this was not contested by the applicant. Mr Hughes gave evidence that the respondent employed 11 employees at the time just prior to the dismissal. 8 I am satisfied that the respondent was a small business at the relevant time.

[5] This means that I must determine whether the applicant’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code).

[6] The Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009. It relevantly provides:

‘Summary Dismissal


It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.’

[7] In John Pinawin T/A RoseVi.Hair.Face.Body v Domingo⁹ (Pinawin), the Full Bench set out a two-step test to determine if an employer had complied with the summary dismissal aspect of the Code:

‘[29]... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.’¹⁰

The facts

[8] The applicant received a letter of termination signed by Mr Hughes on 29 October 2018. It included the following:

‘On behalf of the Inverell East Bowling Club Ltd (the Club), I hereby advise that your employment is terminated effective immediately, due to your conduct and the subsequent breakdown of the employment relationship. This notification was made to you verbally on Thursday 25 October 2018 following a meeting with the Club on Wednesday 24 October 2018.

Your conduct in acting outside of your authority, breaching your contractual obligations as well as your duty of good faith and fidelity to the Club as your employer, led to the Club having no trust and confidence in you as an employee.

In responding to the allegations in the meeting on Wednesday 24 October 2018 your written and verbal responses were argumentative and arrogant in nature and contained numerous false accusations made in an attempt to deflect the allegations. Your written and verbal responses were disrespectful, failed to address the allegations against you and demonstrated a lack of remorse for your actions. The content of your responses and your overall conduct additionally led to a complete and irreparable breakdown in the employment relationship.

Your actions as well as your responses to the allegations are inconsistent with the continuation of your employment, and as such the Club had no option but to terminate your employment. Your termination was effective from Thursday 25 October 2018, as was communicated to you.’

[9] The applicant commenced employment with the respondent on 15 June 2015. There is some dispute about the applicant’s role title and associated duties. The applicant used the title Office Manager. She would normally report to the General Manager, though between the end of November 2017 and 14 May 2018 this position was vacant after the dismissal of the then General Manager, Scott Langley and she reported directly to the Board of Directors. It is clear from the evidence that the applicant was never appointed as Acting Manager during this period, though she does appear to have performed some of the duties that would normally be performed by the General Manager, such as rostering, poker machine reconciliations and human resources. 11 While the position of General Manager was vacant the Board members assisted in the daily running of the Club.12

[10] Soon after the dismissal of Mr Langley the Club’s Board was approached by its contract cleaner, P J Hall, who at the time was paid $1500 per week. There was a discussion about the cleaner’s duties and payment. The Board advised Mr Hall to continue with what he had been doing at the same rate of pay until such a time that the Board made any further decision on his services. 13

[11] Despite this, the applicant, in her own words:

‘…suggested the cleaning contractor submit an invoice for an extra amount.’ 14

[12] In her statement the applicant said:

‘Finally, sometime during February 2018, I suggested that the cleaning contractor submit an invoice with an extra amount to cover his extra work. He increased his weekly invoice by $150…’ 15

[13] The applicant’s partner, Craig Hallam was an employee of the cleaning contractor.

[14] Shortly after taking over the role as General Manager, Mr Hughes noticed that the respondent paid the contract cleaner what appeared to him to be the expensive weekly price of $1,650. He began to consider whether the respondent should either renegotiate the payment or hire internal cleaners. 16

[15] Around mid-June 2018 Mr Hughes held a discussion with the applicant in his office regarding the cleaning contract. The applicant told Mr Hughes she thought the cleaning contract was far too expensive and that it might save money to employ internal cleaners. 17 She also suggested that her partner, Mr Hallam would be an ideal candidate for an internal cleaning/handyman job and would more than likely take on the position should it be offered to him. She told Mr Hughes words to the effect of ‘he does all the work anyway’.18

[16] The applicant took an extended period of leave starting on 16 July 2018 until 22 October 2018. Four weeks of this period was given to the applicant as an ex-gratia payment in compensation for performing additional duties since the termination of Mr Langley.

[17] During the first week that the applicant was on leave, around 16 July 2018, Mr Hall asked for a meeting with Mr Hughes. He said that Mr Hallam had told him that the respondent was going to employ internal cleaners and that Mr Hall’s services would no longer be required. As the applicant was the only person with whom he had shared his thoughts on this subject, Mr Hughes was concerned that the applicant must have told Mr Hallam what he was considering. 19

[18] Mr Hughes told Mr Hall that he believed his weekly charge to be excessive, but that no decision had been made about the cleaning contract. Mr Hall said he was happy to take a pay cut to keep the contract and only charged the price that he did on the advice of the applicant who had advised him that his previous rate of $1500 per week was too cheap. 20

[19] Mr Hughes said in his statement:

‘I was shocked to learn that Ms Wilks had been influential in setting the inflated price on the basis she believed Mr Hall was not charging enough, yet had stressed to me the excessive price of the cleaning contract.

Mr Hall told me that he believed Ms Wilks advised him to inflate his price given that he had cause to have conversations with Mr Hallam on numerous occasions that he may not be able to afford to keep Mr Hallam employed if Mr Hallam was to contribute working as many hours as he was.’ 21

[20] At Mr Hughes’s invitation Mr Hall provided further information about why he was charging $1650 a week in a letter (which was attached to Mr Hughes’s statement). In this letter Mr Hall outline how he had originally agreed to the rate of $1500 a week with Mr Langley. He referred to a meeting he had with the Board after the dismissal of Mr Langley at which they asked him to ‘…leave everything the way it was for now until they got back to me.’ He continued:

‘At this time the club was getting very busy, hosting more functions and the bistro busier as well. At this stage I noticed that my business was losing money, I had gone from giving Craig 12 to 14 hours per week to him putting 21 hours in. I spoke to Craig letting him know that I was going to have to cut his hours back due to this. I then had a conversation with Ali in regards to the hours and extra functions, in this conversation Ali suggested I put more money on my invoices to cover the functions that were being held as these were extras to the club so therefore I should be entitled to receive extra. I therefore decided to increase my invoices by $150.00 per week to include all future functions and allowing me to now hire Craig for 21 hours per week.’

[21] Mr Hall also explained in the letter how Mr Hallam had told him that the Club might be moving to the hiring of in house cleaners. 22

[22] Mr Hughes brought the matter to the attention of the Board which directed him to conduct an investigation. He found that the change in the invoice amount correlated to the course of events described by Mr Hall. 23

[23] Mr Hughes met with the applicant on 22 October 2018, the day she returned to work from overseas. During the meeting Mr Hughes handed the applicant a letter outlining the allegations against her, including:

•  That the applicant suggested to the Club’s cleaning contractor that he increase the amount he was invoicing the Club, without having the authority to enter into negotiations or authorise additional payments to the contractor;

•  The applicant’s actions in suggesting the increase to the contractor’s fees were self-serving as her partner worked for the contractor and was able to maintain extra hours as a result;

•  The applicant had engaged in a conversation with Mr Hughes during which she agreed that the contractor was charging an excessive amount, while failing to advise that she had engaged in discussions with the contractor to increase his fees; and

•  The applicant had disclosed the contents of a confidential conversation with Mr Hughes about the Club’s plans with regard to the cleaning contract with her partner. 24

[24] The applicant was invited to a meeting on 24 October 2018 to provide her response to the allegations. She handed Mr Hughes a written response which included the following:

‘Firstly, as I was the acting Manager of the Club, I had no reason to believe that I was not permitted to make any required negotiations with any supplier/contractor/employee or anyone involved with the Club. Isn’t it the role of the manager to ensure the Club is run efficiently and effectively? The Board will recall that I took on the position as acting manager without any prior experience or training.

Secondly, and as you stated in your point, I allegedly had a conversation … with the cleaning contractor?? As acting Manager was I not even permitted to have a conversation with a contractor?? In any case this “allegation” that I suggested he increase his invoices, is based on hearsay only – his word against mine….

…

My alleged “suggestion” to the contractor to increase his invoices not only is a lie, but, if substantiated, could in no way be deemed as self-serving. I researched the cleaning award to try to ensure my partner Craig was being paid fairly and discovered many penalties etc. that he was not being paid for and I gave my opinion to the contractor that if he could not afford to pay Craig properly then perhaps he should reconsider his own fees….

…

I deny any and all allegations that I was instrumental in the cleaner’s increased invoices…

All I said to my partner Craig (before I even mentioned it to you, Nathan) was in conversation that it was my opinion that the Club would be much better off financially if they employed cleaners rather than contracted them. I did not imply in any way that the club was, or was not, going to take any action in this, or any other direction. I certainly did not disclose the contents of our conversation to Craig, as I had told him my opinion before you and I even discussed it….If the cleaning contractor indicated anything different to you, then he is lying and exposing himself to a potential defamation proceeding.

So I suggest you think very carefully before deciding to accuse me of breaching anything and terminating my employment. I have not breached any confidentiality or contractual arrangement and I have always acted in the best interests of the Club at heart….’

[25] Mr Hughes in his statement that he found Ms Wilks during the meeting on 24 October 2018 to be ‘extremely aggressive, argumentative and unremorseful.’ 25 This is consistent with the overall tone and contents of her letter.

[26] Mr Hughes decided that he needed more time to consider the responses provided by the applicant. As part of his further consideration he spoke again to Mr Hall. 26

[27] During this second conversation, Mr Hall gave Mr Hughes a copy of a document prepared by the applicant which she had given to Mr Hall. 27 This document contained a series of calculations which are clearly designed to provide a basis for Mr Hall to increase the amount he charged the respondent. For example, the document includes a comment, in the applicant’s handwriting, which says:

‘Considering the club is getting busier and busier perhaps you should be charging for 4 hours per day – then when it’s not busy you might have time to do other things that you can’t get to’.

[28] Mr Hughes confirmed through further communication with the Board that the applicant was never appointed as Acting Manager nor given the authority to negotiate contracts. He also concluded that it was beyond doubt that the applicant suggested Mr Hall increase his invoices.

[29] Mr Hughes found the applicant’s comments in her letter about her conversation with Mr Hall suggesting he reconsider his fees ‘if he could not afford to pay Craig properly’ as well as other comments she had made directly to him about Mr Hallam’s employment substantiated the allegation that the applicant had acted in a self-serving way.

[30] Mr Hughes was confident that the applicant both had knowledge of the increased fee and supported the fee increase. Yet ‘at no point in time did she ever disclose to me her knowledge of why the fees were excessive and had increased.’

[31] Finally, Mr Hughes was satisfied that the applicant had disclosed the contents of their conversation with her partner, and that this conversation had been disclosed to the contractor. This was substantiated as Mr Hall was able to relay all details of the conversation in regard to the cleaning contract to the extent of it including a handyman type role. This was information not known to anyone except the applicant and himself. 28

[32] Mr Hughes concluded that the employment of the applicant should be terminated. He notified her to this effect on 25 October 2018, with confirmation in writing on 29 October 2019.

Consideration

[33] In considering whether an employer has acted consistently with the Small Business Fair Dismissal Code it not necessary to determine whether the alleged misconduct for which the applicant was dismissed actually occurred. Rather, first there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds.
[34] I am satisfied, based on the evidence, that the respondent’s decision maker, Mr Hughes, believed that the applicant was guilty of misconduct that was sufficiently serious to justify her immediate dismissal.

[35] This misconduct included that the applicant had – without authority – encouraged the cleaning contractor to increase the amount he charged the Club. Moreover she had done so in order to benefit her partner.

[36] Mr Hughes also believed that the applicant had been dishonest with him in her responses to the allegations, as well as arrogant and disrespectful, in a manner that made their continued working relationship untenable.

[37] I am satisfied that these beliefs of the respondent’s General Manager were based on reasonable grounds. Mr Hughes carried out a proper investigation into the allegations and gave the applicant an opportunity to respond to those allegations. The evidence clearly indicated that the applicant had been instrumental in Mr Hall increasing the amount he charged the respondent. There were also very good grounds for believing that the applicant was motivated to do so in order to benefit her partner. Finally, it was entirely reasonable for Mr Hughes to conclude that the applicant had been dishonest with him. For example, she described in her letter of 24 October 2018 the proposition that she had suggested to the cleaning contractor that he increase his invoices as ‘a lie’ despite the overwhelming evidence that she had in fact done so.

Conclusion

[38] I am satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code. The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

The Applicant on her own behalf.

Ms L Pile and Ms N Huang, Clubs NSW on behalf of the respondent.

Hearing details:

2019.

Armidale:

31 January.

Printed by authority of the Commonwealth Government Printer

<PR704684>

 1   Exhibit 1

 2   Exhibit 3

 3   Exhibit 5

 4   Exhibit 6

 5   S.396(a)

 6   S.396(b)

 7   S.396(d)

 8   Exhibit 3 at [42]

9 [2012] FWAFB 1359

10 Ibid [29]

 11   Exhibit 3 at [12]

 12   Exhibit 6 at [6]

 13   Exhibit 6 at [8]

 14   Applicant’s outline of submissions at [16]

 15   Exhibit 1 at [34]

 16   Exhibit 3 at [27]

 17   Exhibit 3 at [28]

 18   Exhibit 3 at [29]-[30]

 19   Exhibit 3 at [33]

 20   Exhibit 3 at [34]

 21   Exhibit 3 at [35]-[36]

 22   Exhibit 3, [Annexure D]

 23   Exhibit 3 at [39]

 24   Exhibit 3 [Annexure E]

 25   Exhibit 3 at [57]

 26   Exhibit 3 at [62]

 27   Exhibit 3, [Annexure G]

 28   Exhibit 3 at [68]