Ani Rehe v Be Campbell Services Pty Ltd

[2021] FWC 2669

[2021] FWC 2669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ani Rehe
v
BE Campbell Services Pty Ltd
(U2020/14648)

DEPUTY PRESIDENT CROSS SYDNEY, 12 MAY 2021

Application for an unfair dismissal remedy.

[1] An application was filed on 10 November 2020 (the Application), by Ms Ani Rehe (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), following her dismissal on 22 October 2020. The Applicant seeks an unfair dismissal remedy of compensation.

[2] The Applicant commenced employment with BE Campbell Services Pty Ltd (the Respondent) on 2 January 2018. The Applicant was dismissed on 22 October 2020.

[1] On 15 February 2021, amended directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The Directions were as follows:

1. Ani Marlene Tiramate Rehe (the Applicant) is directed to file with the Fair Work Commission, and serve on BE Campbell Services Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 15 February 2021.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 18 February 2021.

3. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 18 February 2021.

(original emphasis)

[2] The Applicant did not comply with the Directions and on 17 February 2021, advised Chambers that she intended to rely upon only the documents which had already been filed with her original application to the Commission. The documents already received from the Applicant included the F2 application for unfair dismissal remedy, a copy of correspondence from the Respondent dated 22 October 2020, and three email screenshots detailing communications between the Applicant and the Respondent on 7 October 2020.

[3] The Respondent complied with the Directions on 18 February 2021, filing with the Commission an Outline of Submissions and annexures.

[4] The hearing of the matter occurred on 19 February 2021. The parties sought to have the matter heard as a determinative conference. No witness statements were filed by either party, and the evidence before the Commission was limited to the documents provided in compliance with the Directions, and the evidence of Ms Rehe at the Hearing.

Background

[5] There were only a limited number of factual disputes between the parties, and the determination of those factual disputes is undertaken where those facts relate to the various issues for determination.

[6] The termination was preceded by three warnings provided to the Applicant, being an initial verbal warning on 7 January 2020, and a subsequent formal warning and a final written warning on 24 March and 12 May 2020 respectively. Each warning was in relation to a breach of BE Campbell’s Company Personal Leave Policy, whereby the Applicant had failed to notify management of unplanned absence.

[7] Verbally, on 7 January 2020, the Applicant was instructed to comply with the Company Personal Leave Policy, and was advised specifically of the requirements that ought to be complied with, being recorded on the Respondent’s Counselling and Disciplinary Action Form as:

“All employees must phone in one hour prior to their rostered shift if they are going to be absent, and provide documentation for any leave that exceeds 24 hours or is taken round public holidays. This is in line with the company Personal Leave Policy.”

[8] These requirements were again communicated to the Applicant in the formal written warning of 24 March 2020, the final written warning on 12 May 2020, and again informally via email on 7 October 2020.

[9] The Applicant attended work on 1 October and was sent home to be tested for COVID 19 after being screened before the commencement of work. A medical certificate for the dates 1 – 2 October was provided on 2 October, and on 7 October the Applicant produced a medical certificate to cover her absence for the period 2 – 6 October 2020. On 19 October 2020, a medical certificate was provided covering the Applicant for a further absence on 18 October. The Applicant did not attend work for the period from 1 – 19 October 2020, and in total, there were six rostered working days where the Applicant did not provide a medical certificate for her absence, and five days where the Applicant did not have any contact with the Respondent in relation to her absence.

[10] An allegation of misconduct letter was provided to the Applicant on 20 October 2020 (the Allegation Letter), and a meeting was held on 21 October 2020 to discuss the Applicant’s alleged misconduct. The Applicant was invited to provide a written submission in relation to the Allegation Letter and for the purposes of the 21 October meeting. The Applicant provided a statement to the Respondent on 21 October 2020. On 22 October 2020, the Applicant was provided with a letter (the Termination Letter) notifying the Applicant that her employment had been terminated. The Applicant was paid two weeks of wages and her calculated leave entitlements, totaling the amount of $7644.53.

[11] The Applicant submitted a copy of the termination letter of 22 October 2020 with a handwritten note indicating that there were five occasions where she did not call to advise that she was unwell, and confirmed that in oral evidence given at the Hearing. 1

[12] Further, the Applicant was candid in her concession that she has previously breached the leave policy of the Respondent, 2 and indicated that she understood why the employer has a requirement that employees call in to advise of any absences.3

[13] The Applicant’s evidence at the Hearing was that she was of the impression that her employer would understand what the reason for her absence was, and that she did not consequently have to call in before each shift. 4

[14] The Respondent’s evidence was that the operational requirements for their business during the COVID-19 pandemic meant that there was a requirement for the Respondent to notify the Department of Agriculture of their employees’ COVID-19 test results when they became available. The COVID 19 test results were received by the Applicant on 2 October 2020, but were not communicated to the Respondent until 7 October 2020. 5 The Respondent’s further evidence indicated that there were a number of staff members at any given time who were similarly absent from work due to COVID-19 testing.6

[15] The Respondent terminated the Applicant on 22 October 2020 with immediate effect, and paid to the Applicant two weeks wages in lieu of notice. The reason for termination was communicated as follows:

“Ani, as you are aware, the company has a policy in relation to Personal leave, stating that you are required to contact management one hour prior to shift commencement to notify them of your inability to attend work on time for your rostered shift. In addition to this you are required to provide supporting documentation for any leave that extends 24 hours. Since the 2nd of October 2020 to the 16th of October there have been various days whereby you have failed to call or provide supporting documentation.

…

Taking into consideration the abovementioned issue as well as your overall performance within the business, Management has made the decision to terminate your employment, effective immediately on the grounds of misconduct.”

[16] In addition to the fact of the Applicant’s absence at work, the Respondent gave evidence that the Applicant was a trainer on site, and that her absence had a practical impact on the Respondent’s operations, as there are training hours requirements each day for their trainee staff. 7

CONSIDERATION

Preliminary findings

[17] I am satisfied that:

(a) The Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));

(b) Her unfair dismissal application was lodged within the 21-day statutory time limitation found at s 394(2) of the Act;

(c) The Applicant is a person protected from unfair dismissal in that she had completed the minimum employment period set out in ss 382 and 383 of the Act; and

(d) Her dismissal was not a case involving the Small Business Fair Dismissal Code (s 385(c)).

Was the Dismissal Harsh, Unjust or Unreasonable?

[18] I must consider the question of whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable’ and therefore an unfair dismissal, pursuant to the considerations outlined in s.387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair.

[19] Section 387 of the Act identifies the matters that the Commission must take into account in deciding whether a dismissal was “harsh, unjust or unreasonable:”

(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) Whether the person was notified of that reason; and

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) Any other matters that the FWC considers relevant.

(a) Valid reason

[20] The reasons relied upon by the Respondent were best summarised in the termination letter sent to the Applicant on 22 October 2020. The reasons given were that the Applicant had continued to breach the Company Personal Leave Policy, and the overall performance of the Applicant within the business. Specifically, the Respondent refers to two limbs of breach, being that the Applicant did not notify the Respondent of her absence on 2, 6-7, 9, 13 and 15 October 2020, and that there were no supporting documents to evidence the reason for her absence for various days.

[21] As the Full Bench found in Sydney Trains v Hilder: 8

The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.

(i) No notification of absence

[22] It is not in dispute whether the Applicant failed to notify the Respondent that she would not be attending work on six occasions. The Applicant assisted the Commission in her candid and explicit concession that this was correct, and her further acceptance that there was a requirement for her to call in at least an hour before her shift. 9 The Applicant submitted various reasons as to why she did not call in to communicate her absence to the Respondent.

[23] First, the Applicant submitted that she understood that the Respondent would assume that she would not be attending work on the basis that they already knew of [her] circumstances and would not consequently call in to advise of her absence. 10 The Respondent gave evidence that the Applicant was required to notify the company every day before that she was going to be absent, and that if the Applicant had indicated that she would be unable to attend for a period of time, that this would have been acceptable to the Respondent.11

[24] Secondly, the Applicant submitted that the Respondent had contacted her mother and partner to determine whether she was okay, and find out what was happening, and that they informed the Respondent that she was still unwell. 12 It was put to the Applicant that this contact with her family members could have been an indication that she ought to contact her employer and communicate her circumstances. The Applicant conceded that this was correct.13

[25] The Applicant also submitted that the Respondent may not have been able to contact her as she does not always recharge her phone, and that she was at those times unable to make telephone calls with her mobile phone. 14

(ii) No supporting document for absences

[26] The Applicant did not provide medical certificates or other supporting documents to explain her absence for six working days. In relation to this issue, the Applicant submitted at the Hearing:

“My doctor, when I seen my doctor on 13 October he specified “to date” so he did not specifically put a date because he couldn’t – he wasn’t to know when I’d be better or not.

So he did not specify a date on 13 October’s medical certificate due to because I had a viral respiratory infection. So it’s also rest and self-limitation which stops me from constantly coughing all the time.” 15

(iii) Overall performance of the Applicant.

[27] The issue of overall performance was not agitated at the Hearing, and no evidence was led as to the performance of the Applicant at work.

Conclusion on Valid Reason

[28] The result of the Applicant’s failure to advise that she would be absent from work was that the employer was at a practical detriment due to the volume of staff who were required by COVID-19 testing requirements to be absent from work, the role of the Applicant as a trainer at the Respondent’s facility, and the uncertainty faced by the Respondent for a period of approximately three weeks in relation to the Applicant’s attendance at work.

[29] Additionally, the Applicant was on notice on four separate occasions from 7 January to 7 October 2020 that her conduct was in breach of the Company Personal Leave Policy, and was notified of the requirements that she was required to comply with. I find that there were valid reasons for the dismissal of the Applicant.

(b) Notification

[30] The Applicant was notified of the of the reasons for termination, most particularly by the Allegation Letter of 20 October 2020, and the meeting held on 21 October 2020. The Applicant was notified of the termination of her employment on 22 October 2020 in the provision of a Termination Letter.

(c) Opportunity to Respond

[31] The Applicant had an opportunity to respond in the meeting on 21 October 2020, and accepted the Respondent’s offer to additionally provide a written statement in response to the allegations of misconduct.

(d) Support person

[32] The Applicant was offered the opportunity to have a support person present at the 21 October meeting, and this opportunity was declined. The Applicant submitted at the Hearing that this was because she had no one to take in at this time. 16

(e) Warnings

[33] While it is clear that the Applicant had various previous warnings, that is not a relevant consideration under s.387(e). As the Full Bench observed in Larcombe v Bis Industries Limited: 17

“Thirdly, s.387(e) of the Act relates to warnings for unsatisfactory performance. The Decision appears to conclude that it was not appropriate to take into account under this head, the severity of past disciplinary action (the demotion). That appears manifestly correct. Moreover, we are not persuaded that there is an arguable case of error arising from the Commissioner’s apparent decision not to take the severity of past disciplinary action into account. The Commissioner’s reasons for so doing were that the disciplinary action was not challenged at the time and it was now not appropriate for him to try to “balance the ledger” by taking a matter not previously challenged into account. No arguable appellable error from that reasoning is disclosed. The scope of the consideration under s.387(e) is well settled and does not require further clarification by this Full Bench. The Appellant’s prior disciplinary history is a matter the Commissioner was entitled to take into account under s.387(h). That the Commissioner may have taken prior warnings about conduct into account under s.387(e) instead of (h) does not enliven the public interest nor do the other matters raised by the Appellant as to s. 387(e) of the Act attract the public interest.”

(f/g) Size of the business/human resources

[34] These are not relevant considerations as the Respondent is a relatively large company and has ample human resources staff.

(h) Other relevant matters

[35] I do not consider that any other matters, not otherwise addressed in this Decision, are relevant to take into consideration.

Conclusion on Dismissal

[36] Taking into account the matters referred to above, I find that the dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had valid reasons upon which it relied to dismiss the Applicant, and no procedural fairness issues arose.

[37] The termination of the Applicant was not harsh unjust or unreasonable. The Application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR729736>

 1   Transcript PN 40.

 2   Transcript PN 54.

 3   Transcript PN 47.

 4   Transcript PN 68.

 5   Transcript PN 147.

 6   Transcript PN 172.

 7   Transcript PN 162.

 8   [2020] FWCFB 1373, at [26].

 9   Transcript PN 15.

 10   Transcript PN 68.

 11   Transcript PN 156.

 12   Transcript PN 189.

 13   Transcript PN 207.

 14   Transcript PN 221 – 223.

 15   Transcript PN 236 – 237.

 16   Transcript PN 121.

 17   [2017] FWCFB 4545, at [34].