Anarieta Virisilla v Mermaid Cleaning Services Pty Ltd
[2022] FWC 324
| [2022] FWC 324 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anarieta Virisilla
v
Mermaid Cleaning Services Pty Ltd
(U2021/9555)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 16 FEBRUARY 2022 |
Application for an unfair dismissal remedy – persistent failure of casual employee to clock on and clock off – valid reason – warning – dismissal not unfair
Ms Anarieta Virisilla has made an application under s 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. Ms Virisilla was employed by Mermaid Cleaning Services Pty Ltd (company) as a cleaner from May 2020 until her dismissal on 6 October 2021. The company’s reason for dismissing Ms Virisilla was that she had persistently failed to clock on and clock off using an application on her smartphone called ‘HumanForce’. Ms Virisilla submits that her dismissal was unfair because she was not properly trained on how to use the application, and because the application often did not work. The company contends that the dismissal was not unfair, because despite having been trained on the application, and warned that she was required to use it, Ms Virisilla failed regularly to clock on and off.
Section 396 of the Act requires that I decide four matters before considering the merits of the application. I am satisfied of the following. First, Ms Virisilla’s application was made within the 21-day period required by s 394(2) of the Act. Secondly, Ms Virisilla was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, the company is not a small business, and the Small Business Fair Dismissal Code is not relevant.
The evidence
Ms Virisilla gave evidence that when she started working for the company in May 2020, she was told that she needed to clock on and off at the start and at the end of each shift, and to do so by using the ‘HumanForce’ application on her smartphone. Ms Virisilla said that the application would often not work properly. When this happened, she would send a message to her supervisor attaching a screen shot of the error message, and later confirm with her supervisor the hours that she had worked. Ms Virisilla’s evidence was that on most or all of the occasions when she did not clock on and off using the application, it was because the application was not working. Ms Virisilla said that she complained about this to Ms Megan Vickery from human resources but was offered no support. Eventually in March 2021, Ms Virisilla met with Ms Vickery in order to receive further training on the application, but the training lasted only 15 minutes. On 6 October 2021, Ms Vickery met with Ms Virisilla and dismissed her.
Ms Vickery is the company’s manager for people and culture. She gave evidence that casual employees are placed on work rosters, and that on each shift they are required to clock on and off using the HumanForce application so that the company can confirm the hours that each employee actually works. Employees work remotely, cleaning the premises of the company’s clients. The company relies on employees using the application to ensure that they are paid correctly. Ms Vickery said that on Ms Virisilla’s second day of employment, she attended the company office to complete her ‘on-boarding’ process. Ms Virisilla downloaded the HumanForce app onto her telephone. She was shown how to use the application to clock on and off. Ms Vickery said that this is a simple process, requiring an employee to press several buttons. During the ‘on-boarding’, Ms Virisilla was given an employee handbook, which explains how to clock on and clock off. She was also given a position description, which stated that it is the employee’s responsibility to clock on and clock off before and after each shift. Ms Vickery produced a copy of this document, which is signed by Ms Virisilla and dated 27 May 2020. Also produced was a document entitled ‘Handbook Policies Understanding Declaration’, signed by Ms Virisilla, acknowledging that she had read, understood, and agreed to follow the policies in the handbook. One of these policies is the ‘Time and Attendance’ policy, which requires employees to clock in and out.
Ms Vickery gave evidence that when Ms Virisilla first started work, she successfully used the application to clock on and off, but that her use of the application then became inconsistent. Ms Vickery said that over the period of Ms Virisilla’s employment, she was spoken to regularly and reminded that she was required to clock on and off. However the problem persisted. In March 2021, Ms Virisilla was required to attend the company office for further training on the application. Ms Vickery said that the training went well. Ms Virisilla repeatedly thanked her. Afterwards, she clocked on and off more regularly. But after this initial improvement, Ms Virisilla relapsed, and the problem continued. On 14 September 2021, one of Ms Virisilla’s managers, Mr George Kelidis, sent Ms Virisilla a text, again reminding her of the need to clock on and off. On 5 October 2021, Ms Vickery was informed by Mr Irfan Hayat, another of Ms Virisilla’s managers, that she had yet again failed to clock on and off. On 6 October 2021, Ms Vickery and Mr Hayat met with Ms Virisilla and told her that her continued failure to clock on and off was unsustainable and that she was therefore dismissed.
Ms Vickery said that Ms Virisilla clearly knew how to clock on and clock off, because over her employment with the company she successfully clocked on and off 147 times, but this was only one third of the shifts that she worked for the company. Ms Vickery said that the company has some 250 employees and Ms Virisilla was the only employee who required her to spend an excessive amount of time on the fortnightly payroll verification manually checking her hours. This involved Ms Vickery going through Ms Virisilla’s text messages and speaking to Ms Virisilla to confirm the hours that she had actually worked each day.
Mr Kelidis gave evidence that during the time he was Ms Virisilla’s direct manager, there were always issues with her timekeeping, because she was not using the HumanForce application consistently, and because the hours she submitted did not match those on her roster. Mr Kelidis said that he had many discussions with Ms Virisilla about the need to clock in and out using the application. He said that some other employees had technical difficulties with the application, but only occasionally.
Mr Irfan Hayat gave evidence that when he was Ms Virisilla’s supervisor, he had to tell her on many occasions to clock in and out. On 20 July 2021, he had reminded her that this was a mandatory requirement of her job, and that if she disagreed with this requirement, she could leave. He said that Ms Virisilla had then assured him that she would clock in and out as required, but still she failed to use the application consistently. Ms Luisa Di Tella, another manager who supervised Ms Virisilla, gave evidence that while her cleaning was very good, Ms Virisilla did not consistently use the HumanForce application to clock on and clock off. Ms Di Tella said that she continued to remind Ms Virisilla that she needed to clock on and clock off and that Ms Virisilla was called into the office on a number of occasions to discuss the problem.
Submissions of the parties
Ms Virisilla contended that her dismissal was harsh, unjust or unreasonable. She said that the company did not have a valid reason to dismiss her, because she had tried her best to use the application to clock on and off but had repeatedly had problems with it. She contended that she had received little help from the company and had not been properly trained. She said that the company ought to have investigated the problems with the application and spoken directly with the ‘HumanForce’ support team.
The company contended that Ms Virisilla had been properly trained, that no other employees had had any serious problem using the application to clock on and clock off, and that Ms Virisilla herself was able to use it effectively some of the time, but that she did not use it all of the time, as she was required to do. The company submitted that it had a valid reason for dismissing Ms Virisilla, because she had persistently failed to meet the requirement that she clock on and off each shift. The company said that it had been very patient with Ms Virisilla, and that it had assisted and warned her, and that in all the circumstances her dismissal could not be regarded as harsh, unjust or unreasonable.
Findings
I make the following factual findings. First, I accept the evidence of Ms Vickery that Ms Virisilla was shown how to use the HumanForce application when she commenced employment. Secondly, I find that this training was sufficient to allow Ms Virisilla to understand how to use the application, because it was not a difficult process and Ms Virisilla in fact succeeded in using the application after she started work. Thirdly, it was a condition of Ms Virisilla’s employment that she clock on and off at the start and at the end of each shift by using the application. Fourthly, Ms Virisilla failed to use the application to log on and log off on approximately two thirds of her rostered shifts during her period of employment. In this regard, the company tendered a business record of the dates and times that Ms Virisilla was rostered to work, and the times on those days that she clocked on and off. It is clear that her use of the application was inconsistent. Fifthly, I accept Ms Vickery’s evidence that she spent a significant amount of time manually checking Ms Virisilla’s actual working times, and that this would not have been necessary if Ms Virisilla had correctly and consistently used the application, as she was required to do. Sixthly, I find that there was no systemic problem with the application. Some employees occasionally had a technical difficulty. But no other employees had persistent difficulties with the application. It is implausible that any persistent fault would affect only Ms Virisilla. Ms Virisilla suggested that the problem may have been related to the fact that she worked at several different sites. But so did other employees. And there is no reason why this fact should make any difference to the workings of the application. I find that Ms Virisilla was not diligent in using the application.
Consideration
For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387.
The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason. In my opinion, the company had a valid reason to dismiss Ms Virisilla. That reason was her persistent failure to use the HumanForce application to clock on and off. It was a reason related to her performance. The company showed Ms Virisilla how to use the application when she commenced her employment. Ms Virisilla demonstrated that she knew how to use it. She did so on approximately one third of the shifts that she was rostered to work. Ms Virisilla received further training on the application from Ms Vickery in March 2021. But despite this, she continued to clock on and off inconsistently. Ms Virisilla signed a document confirming that she understood the company’s policies. She acknowledged, by signing the position description, that it was her responsibility to clock on and off. It was a term of Ms Virisilla’s contract of employment that she clock on and off each day, and that she use the application to do so. She did not comply with this important term.
I accept that there were occasional problems with the application. But I reject Ms Virisilla’s evidence that on all or most of the occasions that she did not clock on and off using the application, it was because the application was not working properly. On these occasions, she was not using it properly. The company witnesses acknowledged that occasionally, other employees had difficulties with the application. This generally occurred at the start of their employment with the company. But only Ms Virisilla persistently failed to use the application to clock on and off. Ms Vickery said that no systemic problems or faults with the application had been reported to her. I accept this evidence.
The company was very tolerant of Ms Virisilla’s failure consistently to clock on and off. It may be that because of this, Ms Virisilla came to regard this requirement as unimportant. During the proceeding, Ms Virisilla said that she always reported for work and did a good job cleaning. She asked, in apparent reference to the requirement to clock on and off, why the company would doubt that she was reporting for work. But it was Ms Virisilla’s duty to clock on. She had promised to do so when she commenced employment. Further, the point of the clock on requirement was not only to verify an employee’s attendance at the relevant cleaning site. It was also to confirm the hours of work actually performed by the employee. The company’s roster sets scheduled hours. But the company needed to know the hours actually worked, in order to ensure that employees received the correct pay. (Contrary to Ms Virisilla’s contention, she was clearly employed on a casual, not a part-time basis. She was paid a casual rate, her contract stated that she was a casual, and there is no evidence of a firm advance commitment from the company to Ms Virisilla of ongoing employment). By not using the application consistently, Ms Virisilla created a large amount of unnecessary administrative work for other people. This was not sustainable.
In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their conduct or performance (ss 387(b) and (c)). Ms Vickery advised Ms Virisilla of the reason for her dismissal at their meeting on 6 October 2021. On the day she was dismissed, Ms Virisilla had little if any opportunity to respond to the reason for dismissal, but I attribute this little weight, because she had previously been given an opportunity to respond to the company’s concerns about her timekeeping and use of the application. Further, it was perfectly clear that she had continued to fail to use the application consistently. I do not consider that affording Ms Virisilla any further opportunity to respond to the concerns would have made any difference.
The company did not refuse, unreasonably or otherwise, to allow Ms Virisilla to have a support person present to assist in discussions relating to the dismissal (s 387(d)).
If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. There is not always a clear line dividing poor performance from deficient conduct. In the present case, I consider that the reason that I have found to be a valid reason for dismissal relates to performance, because my finding above is that Ms Virisilla was not diligent in her use of the application. The company clearly warned her that this failure consistently to clock on and off was unacceptable. In particular, Mr Hayat told her on 20 July 2021 that clocking on and off by using the application was a mandatory condition of her employment and that if she disagreed with this requirement she could leave. The warning was not in writing, but contrary to popular belief, there is no general requirement for warnings to be in writing.
The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f), (g)). The company is not a small employer. However, as I have noted in other matters, these factors do not ‘raise the bar’ for a larger employer. It is rather smaller employers of whom less might be expected in relation to procedural elements of a dismissal. These matters carry little weight in the present case.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h)). Ms Virisilla contended that she was singled out by the company, and that there were many employees who did not use the application to clock in and out. I do not accept that this was the case. The evidence of Ms Vickery was that the company did not have any significant problem with its other employees’ compliance with the clock in requirements. Further, Ms Virisilla was not singled out for adverse treatment. If anything, she received special treatment: Ms Vickery had to spend much time manually confirming her hours of work because she regularly – and in fact usually – failed to use the application as required.
Ms Virisilla contended that it was relevant to the question of fairness that there was no documentary record of her having received formal training on how to use the application, and that the company had not assisted her. But clearly Ms Virisilla received both training and assistance, both when she commenced work and again in March 2021 when she met with Ms Vickery. Ms Virisilla said that it could not be fair to dismiss her when the company had acknowledged that other employees had also had difficulties with the application and did not deny that sometimes there were problems. But Ms Virisilla fails to appreciate the scale of the matter. Some other employees (Ms Vickery estimated five percent) had some difficulty with the application, generally at the start of their employment – ‘teething problems’, as Ms Di Tella described it. In this regard, Ms Virisilla submitted to the Commission a message of support from a former co-worker, who stated that she herself had had ‘a couple of problems’ with the application. But Ms Virisilla did not have a couple of problems. She did not have ‘teething’ problems. Despite clearly knowing how to use the application and successfully using it on many occasions, Ms Virisilla failed to use the application to clock on and off most of the time.
It is important to consider whether the company’s decision to dismiss Ms Virisilla was proportionate to the reason for dismissal. Clearly it was. Ms Virisilla was required always to use the application to clock on and clock off. She persistently failed to do so. The company did not acquiesce in her conduct. Ms Virisilla was told on numerous occasions that she needed consistently to use the application to clock on and off. The company was very patient with her. In the end, its patience understandably ran out.
The company’s dismissal of Ms Virisilla was not harsh, unjust or unreasonable, and was therefore not unfair. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
A. Virisilla for herself
M. Vickery for the respondent
Hearing details:
2022
Melbourne
15 February
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