[2020] FWC 6067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Annai Ghee
v
Staffing OptionS for Community Services Pty Ltd
(U2020/2236)

DEPUTY PRESIDENT LAKE

BRISBANE, 5 NOVEMBER 2020

Application for an unfair dismissal remedy – whether there existed a valid reason for dismissal – where the Applicant failed to comply with a reasonable direction - application dismissed.

[1] Annai Ghee (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which she seeks an unfair dismissal remedy with respect to her dismissal from her employment with Staffing OptionS for Community Services Pty Ltd (the Respondent).

[2] The matter was heard on 30 and 31 July 2020 in Brisbane. The Applicant was self-represented and the Respondent was represented by Ms Carol Burke and Ms Blair Turrisi, the Respondent’s Managing Director and Manager – Service Design and Development respectively.

[3] It is not in dispute that:

• the application was made within time (s.396(b));

• the Small Business Fair Dismissal Code does not apply (s.396(c)); and

• the dismissal did not involve a genuine redundancy (s.396(d)).

[4] These matters were not raised by the parties and I find that these issues are not a point of contention.

BACKGROUND

[5] The Respondent provides disability support services. The Applicant was employed by the Respondent as a casual Support Worker from 2008 until her dismissal on 17 February 2020. During the Applicant’s long tenure working for the Respondent, she provided support to Client A 1 and developed a close and familiar relationship with him and his family. Duties of the Applicant included obtaining Client A’s medication and doing Client A’s grocery shopping amongst other things.

[6] In January 2020, Ms Turrisi was informed by Ms Shirley McCarty, Team Leader, that the brother of Client A was seeking an alternative support provider for Client A. The Respondent submitted that Ms McCarty further clarified this information and found out that the procurement of a new support provider for Client A did not involve his public guardian and advocate, and the Applicant was procuring the new service provider. The Applicant has denied prompting Client A to procure a new service provider.

[7] On 14 February 2020, Ms McCarty was informed that the Applicant had failed to obtain medication that the doctor had prescribed for Client A.

[8] Ms Turrisi contacted the Applicant on 14 February 2020 to arrange a meeting to discuss several concerns which she and Ms Burke wished to raise with her. The issues to be discussed were detailed in an email to the Applicant after she requested further details of the meeting:

“You have raised allegations about our service provision to members of [Client A]’s family and others, which are untrue.

You have sought and promoted the potential use of another service provider for [Client A], without the involvement of his Guardian and Advocate contrary to your employment with Staffing OptionS.

It has come to our attention today that you have not purchased medication for [Client A] as directed by the Doctor.”

[9] Ms Turrisi advised the Applicant to bring a support person as “[the Applicant] would be aware that [she] have had several warnings before this” 2, all the matters were breaches of a serious nature and the meeting would discuss the viability of the Applicant’s ongoing employment with the Respondent.

[10] It should be noted that prior to the events in early 2020, the Respondent asserted that several meetings had been held between management of the Respondent and the Applicant in relation to performance related issues on 16 September 2019, 4 October 2019, 15 October 2019. A follow up email for the meeting held on 15 October 2019 containing a final warning was sent to the Applicant on 16 October 2019. It was submitted by the Respondent that the subject of these meetings were issues surrounding the Applicant’s involvement in errors of Client A’s medication, the Applicant’s communication with the team, following the direction of management, working to resolve the transparency of Client A’s finances and following the staff rostering requests of Client A. The Applicant asserted that she did not receive minutes of the meetings nor were there a follow up after the meetings conducted on 16 September, 4 October and 15 October 2019. The Applicant maintained there were no any issues with her work during her long tenure working for the Respondent until there was a change in management.

[11] On 14 February 2020, Ms Blair Turrisi attempted to contact the Applicant by telephone and further wrote to the Applicant requesting she attend a meeting to discuss several concerns in relation to the Applicant’s employment (the references to January dates should read February):

Hi Annai,

I have tried to call your mobile this afternoon without success, so I am emailing details of what I wanted to talk to you about.

I am requesting that you attend the office on Monday 17 January at 11.30am to meet with Carol Brosi and I. There are several concerns we need to raise with you. We advise you to bring a support person with you, as you will be aware you have had several warnings before this.

Please note that you are rostered to work Sunday 16 January and Monday 17 January with [Client A]. We have replaced you on both of these shifts with full pay. You are not to work these shifts.

I am sending you a text to make you aware of this email and will also confirm with you on Monday morning.

Regards,
Blair

[12] The Applicant sent a reply email requesting the details of the concerns. Ms Turrisi wrote back and outlined the concerns as follows:

Hi Annai,

Thanks for responding. The following issues have been raised to us in the past couple of weeks:

• You have raised allegations about our service provision to members of [Client A]’s family and others, which are untrue.

• You have sought and promoted the potential use of another service provider for [Client A], without the involvement of his Guardian and Advocate and contrary to your employment with Staffing OptionS.

• It has come to our attention today that you have not purchased medication for [Client A] as directed by the Doctor.

All of these matters are serious breaches of your role and the meeting on Monday is to discuss the viability of your ongoing employment with Staffing OptionS.

Regards
Blair

[13] On 17 February 2020, a meeting was held between Ms Burke, Ms Turner and the Applicant. The Applicant attended the meeting with the brother of Client A as her support person. Two issues regarding the food in Client A’s home and grocery shopping and Client A’s finances were raised with the Applicant – she asserted that Ms McCarty had been made aware of the food in Client A’s home and she had sent an email dated 31 October 2019 to Ms Dorothy Dawson, former Collaborative Support Coordinator, advising that she wished to step back from dealing with Client A’s finances and shopping. In relation to the procurement of an alternative service provider for Client A, the Applicant submitted that she commented to the Respondent how good their services were, but stated there seemed to be some hypocrisy to their service and their treatment of her. It was the view of Ms Burke and Ms Turrisi that much of the Applicant’s responses were unrelated points and were at times incomprehensible. At the conclusion of the discussion of performance related issues, the Applicant was advised that the relationship between her and the company was no longer workable and was dismissed.

[14] A termination letter dated 17 February 2020 was provided to the Applicant on 18 February 2020 by email and post which read in part:

“I write to notify of the termination of your employment with Staffing Options for Community Services.

On 17th February 2020 I met with you and Carol Burke, Managing Director to discuss your employment. You were provided with an opportunity to explain why your employment should not be terminated.

We also discussed the fact that we have had several meetings with you, the last meeting on the 15th of October 2019 being your final warning. We had hoped that we would see a change and be able to continue working together. Unfortunately, further issues were brought to our attention which we discussed yesterday. After consideration of your response to our concerns we have decided we are unable to continue with your employment.

As a casual employee, you are not entitled to a designated period of notice of termination. Your employment with us will therefore end effective immediately.”

EVIDENCE

[15] At the Hearing, the Applicant gave evidence on her own behalf. The Applicant was represented by Mr Kanat Wano. The Respondent was represented by Ms Carol Burke.

Medication and letters

[16] The Respondent submitted it grew concerned regarding how medication was packaged by the pharmacy the Respondent had previously utilised to supply Client A’s medication, referred to as Webster packs. The Respondent’s concerns arose from the labelling on the packaging.

[17] Ms Dorothy Dawson, Client Support Coordinator and direct line manager for the Applicant, gave evidence that she had concerns with how medication was being recorded and the quality of the packs prepared by the pharmacy, as the Webster packs did not have any information as to how to administer the medication. 3 Ms Dawson said that she decided to change pharmacies, and that the Applicant resisted the change and undermined her attempt to rectify the situation.4

[18] The Applicant spoke to Client A and Client A’s brother and provided a letter to the Respondent from Client A’s brother which purported to be in support of Client A’s request and recommendation that the Applicant be Client A’s primary carer and coordinator in managing their affairs. The letter outlined Client A’s brother had consulted with Client A and said that Client A felt accepted and respected by the Applicant, and that the Applicant went above and beyond her work commitments. The letter said that the Applicant continued to be a voice for Client A in dealing with staff, medical needs, running Client A’s home, training staff, and everyday issues, including grocery shopping, banking, and financial status. The letter was critical of other staff and supportive of the Applicant.

[19] The Applicant also provided a letter (by way of email) to the Respondent from the pharmacist at the pharmacy where Client A’s medication was prepared. The letter from the pharmacist said that Client A had been a long term patient of the pharmacy, and that the Applicant had collected Client A’s medication packs on a monthly basis (as well as any sundry items that Client A might need) for many years with no dramas whatsoever.

[20] The Respondent contended that the Applicant had sought the letters from Client A’s brother and the pharmacy. The Applicant conceded she emailed the letters to the Respondent 5 but denied sourcing the letters and said that they were requested by Client A and his brother, as Client A felt the service was not meeting his needs at the time or he was unhappy with the service. The Applicant said that the letters were provided on behalf of her duty as a support worker to pass on ‘updates’ in regards to issues and concerns clients may have. 6

[21] The Applicant conceded that she had assisted with the writing of the letter from Client A’s brother, but only insofar as she guided him as to the fact he needed to put any concerns or views down in writing and who it needed to be addressed to: 7

MS BURKE: But the five points here relate to you? -Yes, because they were - at that time that letter was in support because of management were attacking me, as I felt, before leading up to the meeting, because there were things that were going on.

Right, so those five points he mentions are all about you? -Management wasn’t supporting me.

Right, and [Client A’s Brother] knew about this? -Yes.

And how did he know about this? -Well, in anything in regards to his brother’s life, or the care and the support that he gets, they would always - not just [Client A’s Brother] but the family would be informed.

Who by? By yourself? -Well, I had more - what’s the word, rapport and relations of knowing them because of how long I’d been there and how long they’ve known me.

Right, and so he says here “Having known Annai over these years, I believe Annai is the best person for [Client A] as she knows him better than any staffing personnel, staff or other personnel”. Why is he saying that, was there a - - -? -Because my understanding too, in regards to where staffing options is and where I think I mentioned earlier, my knowledge and my work with him from day one of him, of learning of him and his - - -

Yes, but it’s saying here, he’s writing it to say “You’re the best person, having met the new staff worker and found her to be intrusive and controlling. [Client A] stated to F-off and leave him alone. Annai always stood in the gap”. Was there a threat or a perceived threat or an idea that [Client A’s Brother] had that you were not going to support [Client A] in some capacity or in the future? -In regards to the - I guess it was where this was - the complaints and everything was where the complaint in regards to the staff, that was intrusive and thing, he had mentioned that. But also, I guided him to say that you need to then let management know or things like that, as well. I just guided him into knowing who. He didn’t know like in regards to where words or anything like that, to make it be formal, if I can say it that way.

Right, so [Client A’s Brother] wanted at least, or you gave [Client A’s Brother] some guidance as to look, you need to put it down on paper? -Yes, on paper.

And you need to write to whom it may concern and then detail his concerns? -And that’s actually because of the two documents together, they were just sent together on the same day, because the medication that was going missing which was reported earlier that was where the whole concern was about.

It was a separate issue; the medication? -Yes, and the letter from the - - -

They arrived at the same time. But you assisted and guided [Client A’s Brother] in at least documenting his concerns? -Because he asked, yes. He asked, and so did his brother.

[22] Ms Burke gave evidence regarding the medication, in which she set out that the Applicant was not responsible for the packaging of the medication. Ms Burke’s evidence was to the effect that the Respondent’s concern was that the Applicant had resisted a direction from the Respondent by soliciting the letter: 8

MR WANO: Thank you. In terms of - I want to go back to the medication. The medication, there’s an issue around the medication because of the packaging? -Mm-hm.

Did Ms Ghee package the medication? -No.

Did Ms Ghee do anything to that medication pack? -No.

So where is Ms Ghee responsible for being now brought before this court in terms of the medication pack? -It was more around - the medication had been packed incorrectly and apparently had been for some time and so when the coordinator was involved - I think we’ll probably come to that a bit later with the other witnesses that are coming on board; they’ll know more about it than myself - when it came to rectifying that situation, Ms Ghee then didn’t want it rectified and wanted us to stay with the pharmacy that had packaged it incorrectly. So, it was trying to make her understand how dangerous that was.

I think - - -? -And to then go back to the pharmacy after we’ve given direction that we’re not going to be using them any more was the point.

THE DEPUTY PRESIDENT: So the issue for you wasn’t that the packaging was done incorrectly, which is bad? -No, that’s the pharmacist not the - yes.

The issue in relation to Ms Ghee is that you had determined, as the employer, that chemist has delivered the wrong goods, poorly packaged or marked, or whatever? -Correct, yes.

You have determined the solution for that was to go to a new supplier? -Correct.

And so you’ve said, “Okay, there’s a new supplier, this is the way we’re going to do it”? -Yes.

And your point was Ms Ghee had undermined that, in effect, by going back to the client - - -? -Correct, yes.

- - - and going, “They’re going to change the chemist”? -Yes.

And so this was an example for you of the resisting a direction that you had given? -Correct, that’s right.

That’s why the medication pack is mentioned? -Yes.

It’s in that context, is it? -And also that’s when also the letter came from the pharmacist around - that’s what we were trying to understand was - - -

There is no allegation that Ms Ghee tampered with the packs or did anything wrong with the packs themselves? -No.

It was symptomatic of - - -? -Of, you know, why are we getting these letters and why are we - yes.

[23] During cross examination, Ms Carol Burke said that the Applicant’s poor performance in this regard was that when the Respondent tried to rectify the situation regarding the medication, the Applicant made the situation difficult to manage by speaking to the client and resisting the direction: 9

MR WANO: So why is that a - so what’s the poor performance in that? -We’re talking about working with us, like it’s that relationship between being a paid employee and being an advocate on behalf of somebody. So, the poor performance is that when we have deemed - we are responsible for that person to make sure that their supports are provided safely and what we’ve come across, we’ve been made aware that this medication has been packaged incorrectly and we’re like, “Oh, my gosh, that’s terrible, what are we going to do about that, we’d better go and see that we call the pharmacy, do whatever” - Dorothy will be able to walk you through that.

You called the pharmacy? -I did as well, but Dorothy will be able to talk you through that.

THE DEPUTY PRESIDENT: So you’re liable - if, for example, the client had taken, or a new worker had turned up, had punched out and given them three lots in a day, just because it’s marked that way? -Yes.

If they had done that and the client had died as a result of that, through whatever complication, then the liability falls to you or your organisation because you provide the support worker who then accidentally provided too much? -And we should have picked that up, we should have picked that up earlier.

You should have systems in place where that’s not the case? -Yes.

So you have responsibility ultimately, if the pharmacy packages the wrong way, if there’s a death or injury, and in Queensland there is - - -? -Well, they would probably be liable as well, but, yes.

And the individual as well? -Yes, and the pharmacy.

And the pharmacy? -For packaging incorrectly.

So the whole lot would have - - -? -Yes, yes.

There would be an impact? -So when we’re trying to rectify this situation, then we have Ms Ghee who is saying - I think we have an email here that we received about, you know, that he should be able to stay with that pharmacy, he’s been there for 10 years, he wasn’t asked if he could change pharmacy, which wasn’t actually the point.

She had a different view? -She had a different view and was then not listening to the direction.

Right. She would talk to the client and say, “They want to move”, the client would be upset and then that would then mean that - - -? -According to Ms Ghee, as I’ve said.

Yes, and so that then makes it difficult to manage the situation because - - -? -Yes, correct.

- - - you have already lined up a different supplier who would package it properly or the right way? -That’s right, yes.

Meeting of 16 September 2019

[24] On 16 September 2019, the Respondent met with the Applicant to discuss the Webster packs, and also discussed with the Applicant her role as a carer. At this stage, the Respondent was concerned the Applicant’s duties as a paid employee were conflicting with the way in which she advocated for Client A:

MS BURKE: We also spoke about - because she was quite - I’m not sure what the term this is - but wasn’t happy with this decision that we had to make to change pharmacies. We were saying, look, maybe she should think about, you know, if you’re a paid employee and you want to advocate for somebody, it can be a bit of a conflict of interest, like if we’re giving one direction and she’s feeling a different way, you know, yet she has obligations as an employee of Staffing Options versus the support that she wants to provide to this person and that maybe the balance in the relationships had changed and did she want to think about that, that maybe she could stay working in Staffing Options but no longer work with this person, that she could then freely advocate on his behalf and support him rather than having that conflict with us as the employer.

MS TURRISI: Yes? -So, yes, we asked Annai if she wanted to consider that and then to get back to us whether she would like to stay working as an employee and then, if so, you know, how we were going to do that, or be an advocate.

Did you believe from that meeting that Annai understood what those concerns were about and was prepared to consider? -I’m not sure. Initially, I think I’d hoped that she would, but it almost felt like - I’m not sure, your Honour, if I’m allowed to talk about feelings, like how it felt, if it can be - - -

THE DEPUTY PRESIDENT: Yes, you can talk about your impressions and you’re addressing me. I know your questions are coming there, but you’re sort of, you know, telling me about what happened, what the experiences were, what you felt? -Yes. So it was almost like - it almost felt like we were like not working together, like it was sort of pushing against us really, sort of like the decision that we were making was not taken into consideration the person that was being supported, and so even though we were trying to explain those things, I’m not sure really, I can’t really answer whether - anyway, what happened was that, after that, Annai did go away and think about that and then came back to us and said, no, she’d decided that she would like to stay in that role working as a support worker for the person and then I said, okay, we’d need to work it out together and arrange another meeting to work out how we were going to get over those things.” 10

“MS BURKE: It was the letters that had arrived, they were like - I don’t know what date they were, but it was before then, the 8 September and it was also then to talk to Annai about were boundaries being blurred. As a paid employee versus an advocate for a person with a disability and where would Annai like to sit.

THE DEPUTY PRESIDENT: Yes, perhaps you could explain just briefly, when you say she could work as a support worker or be an advocate. Is there a specific role called advocate or is that just a phrase that’s used?

MS BURKE: Sorry, that’s just a term we use. So, if because when we were working things through with Annai, then Annai was feeling - obviously was not happy with us for what our decisions were or our directions and we could feel and hear that.

THE DEPUTY PRESIDENT: Yes, because she’s advocating for [Client A].

MS BURKE: And so, advocating for him, or she felt she was advocating for him.

THE DEPUTY PRESIDENT: She can’t be a support worker and an advocate, is what you’re trying to say.

MS BURKE: That’s right, yes. So, when we spoke then at this meeting, we said we’ve got to be very careful with those boundaries like between - especially when you’re working with people that are so vulnerable and being careful not to be taking over a person’s life as well. And making sure that person is at the centre and you’re making those decisions together with the person. So, we did - Annai, did we say at that meeting that would you prefer to be an advocate for [Client A] or you could remain as an employee. However, if you were to remain as an employee, then there are a few things that we needed to cover, which meant where you’re taking direction from, which way did you want to go. Was that correct? And we also offered that if you would like to be an advocate for him, that perhaps you’d like to stay working for us, but maybe somewhere else and not - so that it was getting a bit - - -? -I’ll agree you said the last bit. Referred, when you said you referred, I disagree with that.

Referred, sorry, what was that? -You said when you referred that I be an advocate, I disagree.

Would you prefer, yes, sorry, yes? -Yes, I disagree with that statement that you made.

Sorry, what was that? -You gave me an option before I - - -

An option? -Yes, before - yes, you gave me that option. I didn’t, cause to clarify, I didn’t even know what the meeting was about. There was nothing sent out to me in regards that we were going to have a first meeting, anyway in regards to a letter. So there was nothing that was sent - - -

THE DEPUTY PRESIDENT: So, you didn’t know about the meeting, what it was about, that’s okay. Then you turn up for the meeting. The issues raised were the pharmacy and the packaging and there was also the issue raised about the letter and then this blurring, I’d call it, of roles between you know, [Client A]’s interests and then the organization who you work for and paid for who ultimately selected by the client to provide that service. So, it seems to be that there was a statement said, do you want to work elsewhere in Staffing Options and continue to advocate for [Client A], or do you want to be a support worker for [Client A]? -That was the option that Carol gave.

So that was the sort of two options that were given to you? -That was the option, yes.

[25] The Applicant did not agree to step away from Client A and emailed the Respondent the following day stating that she wanted to remain as Client A’s support worker. 11

Client A’s request for change of days

[26] At some point prior to 4 October 2019, Client A had a discussion with Ms McCarty regarding who was working as his support worker and to see how he was feeling. Client A said that he wanted the Applicant to continue to work with him as his support worker, but not over so many consecutive days.

[27] The Respondent held a meeting to discuss this request with the Applicant on 4 October 2019. At the Hearing, Ms Burke was questioned regarding the meeting on 4 October 2019 and the follow-up meeting on 15 October regarding the request from Client A and the Applicant’s decision to speak to Client A regarding his request:

MS TURRISI: Could you explain to me the purpose of that meeting? At that meeting, it was - so what had happened leading up to that meeting is that yourself, actually, and Shirley, who knows the person quite well, had gone to meet with the person being supported just to find out like what was going on because we’d had a few messages about, you know, who was working. Anyway, they had been to see him over a period of time to ask him, you know, how he was feeling about things. In the course of that meeting, he had suggested that he would like Annai to remain working there, however not so many consecutive days, so, rather than doing three in a row and then one, if we could split that out over a few days. So, it was - I think that it must have happened before then.

So, what had happened is we had asked Annai to change those days and Annai was also asked not to bring that up with the person being supported because that puts him in quite a compromised position, so he’s made a request and then to go back - of course, it’s going to be quite difficult for him to say - - -

THE DEPUTY PRESIDENT: Yes? --- Sorry, you know, what was going to happen.

He would be confronted with some information that had been passed - yes? Yes, his request had come to us in confidence and we said, “Yes, we’ll deal with that” and then to turn around and put it back onto him, I think is quite a difficult situation.

Yes, it puts him in a difficult situation. All right, yes? So that had happened and so we wanted to speak to her about that to say that, you know, “We have had this conversation and why did you do that?” Annai said that she was under the belief that Blair had said that was okay to do, which we said it wasn’t. We then spoke about that here we were again in that situation again where we’re the employer, she’s a paid employee and we continue to be going round in circles around the support around this person, so it seems like we were having this continual battle.

That was sort of role clarity? Yes, yes. At that point, too, we said, look, because of these difficulties where we’re not - we’re trying really hard to work together because - your Honour, just to mention - I know it was stated yesterday too - that Ms Ghee has worked with this person for quite a lengthy period of time and so when these concerns were coming in to us, we had to really look at that because we didn’t want to be - we had to make sure that those things were right, like we can’t - it’s important to the person being supported to have good relationships in his life and so we have to make sure that they are good relationships and that if there are concerns coming through, that we work together with her because we don’t want to be moving people who have a good longstanding relationship.”

[28] The Applicant made a filenote dated 4 October 2019 of the meeting and submitted this note as evidence by the Applicant sets out her understanding of the meeting of that date. In the filenote, the Applicant outlines the issues raised by the Respondent, and in particular the request from Client A to change the Applicant’s days of work. The Applicant said in the filenote that she felt that she was pressured and bullied into accepting a change of scheduled days from Tuesday to Thursday. The Applicant’s note indicates she said she would raise the Respondent’s concerns with Client A and would follow up with Client A about the change of days. The filenote indicates the Respondent queried why the Applicant would need to speak to Client A.

[29] Ms Burke’s notes of that meeting indicate she specifically asked the Applicant not to speak to Client A, as the request for a change of days had been made to Ms McCarty as the Team Leader.

[30] During cross examination, the Applicant conceded that she spoke to the Applicant regarding his request, and conceded that she had been asked not to, and that this would have put the client in a difficult position. The Applicant further conceded that she was given a direction as an employee and that she went against the Respondent’s wishes:

MS BROSI: So, that happened. So, we changed those days and we did give you direction to say please don’t bring that up with him because that puts him in a very compromised position. Did you speak with him about those days, regardless? -No. No, not about the days, no.

So, there’s an email here, exhibit - I’m not sure if that’s a D, it might be, in Annai’s documents and it’s an email from Annai saying “Afternoon Blair, I’ve asked [Client A] several times in the comment you made of [Client A]’s request of me being here too many days. [Client A] has said if he didn’t want me here, he just would have say it to my face. After considering it again and at [Client A]’s request, I will just keep the shifts as normal working days, Sunday, Monday, Tuesday and Sunday”, however that worked. So, yes you did speak with him after we asked you not to, that’s what your email says here? -Informed.

No, it says here that you’ve - - -

THE DEPUTY PRESIDENT: Asked [Client A] several times.

MS BROSI: You’ve asked [Client A] several times, after we asked you not to do that? -Yes.

So you can imagine - do you think that that would have put him in a difficult position? -No.

You don’t think that he would sit there and think well, what am I supposed to say? -No.

Why do you think that? Don’t you think that you would feel in a funny position if you’ve put in a request, you want to keep it like that and how do you think that he would feel? -I was confused.

You don’t think he would say what you want him to say? -No.

Do you think that we have an obligation to him to listen to his requests and make sure we do what he asks? -Yes.

And so when we give you a direction would you think that you need to follow that direction? -Yes.

In respect of him? Our of respect for him? -Yes, if you put it that way, yes.

But you did go against our wishes and you did then go and ask him, regardless of what we were saying. So what I’m just trying to point out is that along the way, as you’ve been given direction as an employee, we keep hitting hurdles along the way. So, this is just an example of that? -Okay. 12

Discussion with Client A’s brother on 5 February 2020

[31] On 5 February, Ms Burke spoke to the brother of Client A, who advised that he was seeking a different support service provider for his brother. Ms Burke said that she found this quite alarming as the Respondent had been providing support services for Client A for many years:

“MS TURRISI: So my question relates to that. Did you have a conversation with [Client A’s brother], the brother, on 5 February? -Yes, I did, yes, because when we had heard that that was happening, for us, your Honour, we had been providing support to this man for a number of years and to have not ever heard that there was an issue with the service provision or anybody had ever contacted us, that was quite alarming, so, okay, we’d better look into this. So, I contacted the person’s brother just to say, “Look, can you tell me what the problem has been? Is there something that we should have been addressing?”

THE DEPUTY PRESIDENT: Yes? -Or, you know, like, “What is it that we can rectify?” On speaking to him, he said, well, the reason why he was seeking another service is because his brother was left without food for four weeks and I said, “Where has that information come from?” I asked him - I said, “Because that’s a very hard thing to do when your brother receives 24 hour support and he has staff members in place at all times.” So, at some point - - -

So you were quite surprised that would have happened? -Very surprised.

Right? -And especially knowing the staff that are in there, which Ms Ghee is one.

Yes? -So I was quite surprised at how that could happen and I said, “Why didn’t you contact us or let us know?” because that’s very concerning to us, as a service provider, that that could happen for somebody. He said that - he said, “I didn’t really see it”, he said, “I heard it through staff members” and I said, “Well, can you tell me who, you know, who would have told you that?”

Yes? -And he said, “Well, I only ever speak to two workers” and that was Annai and another worker, Gary.

Right? -So he wasn’t able to tell me exactly, but I think - what I was trying to explain to him was, “Well, you know, even though they may only be the two support workers that you speak to, you also realise that one of them in particular works there four days a week and I’m sure we’ve not let that happen.”

Yes? -“You know, that’s not - I can’t imagine that she would let that happen.” And Gary, I think - I’m not sure when Gary came back from maternity leave, but I just knew that Annai’s hours were - anyway, I said that I would investigate the claim and I found that to be untrue, that he wasn’t left for four weeks without food. I also tried to explain to his brother, you know, about moving services. I said, “Look, have you actually contacted his public guardian and his advocate?” because I haven’t heard until now that he was looking for another service or that - nothing had been brought to our attention.

Yes? -I said, “Did you go through those paths to make sure that is actually what your brother wants?” He said he doesn’t see why he should, he’s his brother, he doesn’t understand why people aren’t going through him…” 13

[32] At the hearing, Ms Burke explained that Client A’s brother was not his public guardian, which is an individual who is appointed where a person may not have an appropriate family member to make decisions regarding their wellbeing. Ms Burke said that Client A’s brother did not appear to understand the role of the public guardian, and said that the brother had not been involved with Client A’s life or management of his affairs until recently.

[33] After the meeting, the Respondent investigated the allegations regarding a lack of food supplies for Client A.

Meeting of 17 February 2020 and termination

[34] On 17 February 2020, the Respondent met with the Applicant to discuss the reports regarding Client A not having food in the house, as well as additional other matters.

[35] Ms Burke’s evidence was that the intention of the meeting was to discuss the allegations about the service provision and to ask the Applicant about the information provided by Client A’s brother about the standard of care provided, and in particular the lack of food. Ms Burke said before the meeting could happen, there was an incident where a doctor prescribed a particular cream for treatment of a sore on Client A’s lip. Ms Burke said that the Applicant did not get that particular prescribed cream and instead used a different cream:

“MS TURRISI: Sorry, I did do a bit of a backflip there to that conversation. Moving forward now to the final meeting on 17 February, can you explain to us the purpose of that meeting, why it was called? -Yes. So I think - I think things had been building - you weren’t here yesterday - I think probably over the last couple of months, things had been building just with our relationship with Ms Ghee and I think as we were getting along, like we’d had those meetings in October, we’re hearing in like November/December that services were being looked at and it sort of went on, so it sort of culminated again where there was - we wanted to bring up with Ms Ghee about the allegations being made about our service provision, which was around the four weeks of the person not having any food, it was talking also about assisting the person’s brother to be looking for an alternate service, and we wanted to actually ask whether that - we hadn’t actually spoken to Ms Ghee about that at that time, so it was to ask whether - this was information that we’d had from the brother and from support workers and so we needed to find out if, you know - what that meant, and you can imagine to us, as the employer, that was quite alarming.

We also then - just before that happened, I think all the way along what was bothering us the most is that the time - the length of time that Ms Ghee has been working with this person that the balance had shifted in that relationship and a lot of authority was being assumed around the person being supported, and that was quite alarming to us, I guess. So, just before that happened, the person being supported had like a sore or something on his lip and I think one of the support workers had called the doctor or he’d been to see the doctor and I’m not really sure - sorry, I’m not really clear about the details.

THE DEPUTY PRESIDENT: We will hear later about that, yes? -But basically what had happened is that a doctor had prescribed some cream that was to be put - the staff member that was on - whenever the call came, the pharmacy was shut - I’m not really sure, so I can’t be sure on all those details - but when Ms Ghee came on, it was said, “Could you please go and get that cream for the person, he needs to - that’s what’s been prescribed” and Ms Ghee decided and sent through an email to us to say that she didn’t think that he needed that cream, she’s known him for quite some time and she knows that he doesn’t need it, he just needs a bit of aloe vera or whatever.

Yes? -It was sort of like, at the end of it, we’re going, “Oh my gosh, we need to deal with this, we can’t keep making these decisions for this person when we’re actually getting directions from professionals and we have to follow those things.” So, it was to speak to her about those things. 14

[36] At the meeting, the Applicant was accompanied by Client A’s brother, which Ms Burke said surprised her as the Respondent was hoping that the support person would be somebody who was going to be able to assist Ms Ghee go through whatever it was that was going to be discussed. 15

[37] Ms Burke gave evidence that the Applicant was quite animated and angry at the meeting, and that she felt Client A’s brother did not understand what was happening at the meeting. Ms Burke said the Applicant interrupted her as they were trying to discuss the issues, and that Client A’s brother tried to answer questions on the Applicant’s behalf rather than providing support. Ms Burke said that across the series of meetings with the Applicant, it appeared that the parties were at cross purposes, which appeared to frustrate the Applicant. 16

[38] At the hearing, Ms Burke was questioned regarding the Applicant’s demeanour in the meeting. Ms Burke conceded that the Applicant could be described as in a heightened state, with a lot of emotion behind the meetings. Ms Burke also conceded that she was not aware that English was the Applicant’s third language:

“MR WANO: Because we have - just on that point, were you ever at any meetings - you didn’t have any conversation with the client, we’ve established that. You mentioned the word “heightened” and I presume - I’m addressing the court, the whole court in this, and the reason I address this is because - and I have a feeling and you’ve been allowed to express your feeling in this court, so I’m expressing my feeling - but you have painted a rather aggressive type - aggressive type character around Ms Ghee in terms of her heightened presence, and you’ve said that several times - heightened. Could you define what “heightened” means to you?

THE DEPUTY PRESIDENT: This is in regards to the emotional state that your client was in?

THE WITNESS: Yes, yes, I don’t think I’ve used the word “aggressive”, but when I’m meaning “heightened”, I mean that we - when we’ve had the meetings, there’s been a lot of emotion behind it and we haven’t been able to get anywhere. Like when we’re having the conversation, a lot of the stuff that Ms Ghee was - to be honest, I didn’t actually know what it meant or where it was coming from, so it was - - -

THE DEPUTY PRESIDENT: Yes? -I shouldn’t make the assumption, but I just thought there would be a lot of emotion behind it.

It was quite animated? -Yes.

Physical gestures and - - -? -And a lot of, you know, getting up and walking out and coming back in, and so obviously that could have been anxiousness.

In a heightened emotional state? -Heightened - yes.

Okay.

MR WANO: Are you aware that Ms Ghee’s - English is Ms Ghee’s third language? Were you aware of that? -No, I wouldn’t have asked, yes.” 17

[39] At the conclusion of the meeting, Ms Burke said she told the Applicant that she didn’t think the employment relationship was going to work. The Applicant was dismissed by way of a letter terminating her employment sent to the Applicant on 18 February 2020.

RELEVANT LAW

Relevant legislation

[40] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[41] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(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.

[42] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 18 I set out my consideration of each below.

What constitutes a reasonable management direction

[43] The right of an employer to direct their employee is implied at common law, stemming from the ability of an employer to exert control over their employees. Employees have a duty of obedience which requires an employee to comply with any lawful and reasonable direction given by a superior, 19 or otherwise contained in an employer’s policies and procedures.20 A breach of this implied duty constitutes a breach of contract; this misconduct can provide the basis of a valid reason for dismissal.

[44] Conversely, where an employee fails – or refuses – to comply with a direction that is either unlawful or unreasonable, no cause of action manifests – failure to follow such a direction does not provide a valid reason for dismissal.

[45] If there is no express term which crystallises the obligation to follow reasonable management direction, then the implied duty will operate only to the extent that it is not contrary with the express terms contained within the workplace instrument. 21

[46] A lawful direction does not require a positive statement of law endorsing an action; a direction can be classified as lawful provided that it does not involve illegality and “falls reasonably within the scope of service of the employee.” 22

[47] This was summarised concisely by the Full Bench in King: 23

[26] It is well established that an employee has an obligation, implied by law, to comply with the lawful and reasonable directions of his or her employer. The circumstances in which an employer’s direction will be lawful were described by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan 14 in the following terms:

“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.”

[27] The expressions in the above passage “relates to the subject matter of the employment” and “within the scope of the contract of service” have been regarded as synonymous in respect of the limitation expressed. The scope of employment is a somewhat broader conception than just the course of the performance of duties under the employment contract. Textbooks have described the scope of the employment of an employee as determined by the nature of the work the employee is engaged to do, the terms of the contract, and customary practices or the course of dealings between the parties. It does not extend to private or personal activities of the employee not affecting his or her work. In Australian Tramway Employees’ Association v Brisbane Tramways Company Limited, Higgins J sitting as President of the Court of Conciliation and Arbitration said:

“A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.”

[28] The circumstances in which an employer may make lawful directions in respect of the off-work activities of employees will therefore usually be very limited. In McManus v Scott-Charlton the Federal Court (Finn J) said: “I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified”. In Appellant v Respondent a Full Bench of the Australian Industrial Relations Commission said that “it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees”. Statements of this nature suggest that there must necessarily be a significant connection with or effect upon the employee’s employment in order for an employer’s direction concerning the out-of-hours activity and conduct of an employee to fall within the scope of the employment and thus be lawful.

[29] The nature of the employment in question, and the statutory, contractual and other legal obligations applicable to such employment, affect the scope of the employment and the capacity of the employer to issue lawful directions concerning out-of-hours conduct.

[48] The question of what is reasonable is a question of fact and balance; it is not material that a “better” direction may exist – a determination of what is reasonable must be assessed against factors relevant to the employment relationship. This was summarised in CFMEU v Glencore: 24

[9] In Woolworth Ltd v Brown a Full Bench of the Commission observed as follows:

“In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties. (at [24])

...

What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate. As the Full Bench observed in the XPT case, albeit in a somewhat different context, it is not the role of the Commission ‘to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.’” (at [35])

[10] In Briggs v AWH the Full Bench relevantly said (at [8]):

“The determination of whether an employer’s direction was a reasonable one … does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan.”

[11] Whether a direction is reasonable is essentially a question of fact and balance.

CONSIDERATION

s.387(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)

[49] When considering whether there is a valid reason for dismissal, the reason must be ‘sound, defensible or well founded.’ 25 A reason which is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason.26

[50] The Respondent did not contend that the Applicant was dismissed for misconduct. Instead, the Applicant was dismissed ostensibly for poor performance. The Respondent submitted that the Applicant refused to address the concerns regarding her performance which were raised at several meetings, and asserted that her length of service in supporting this person made her an authority in his life. The Respondent argued that this was in direct conflict with the formal appointment of Client A’s guardian and advocate. The Respondent submitted that the Applicant’s responses to the performance issues were incomprehensible or unrelated to the issues at hand, and as such the issues could not be resolved, leading to the Applicant’s dismissal.

[51] The Applicant is clearly a passionate, involved, and dedicated support worker. It is also apparent that she cares deeply for Client A and is strongly invested in his wellbeing and care. She has provided care for Client A for many years.

[52] Regrettably, the Applicant’s close involvement with Client A is at odds with her duties as a support worker. As a support worker, the Applicant is expected to follow directions from her employer where they are reasonable directions. That the Applicant disagrees with them is, ultimately, irrelevant, so long as they are reasonable. It is clear the Applicant took issue with a number of decisions the Respondent made in relation to Client A’s care.

[53] An employer is entitled to make decisions as it sees fit. Frequently, businesses make the wrong decision, or make decisions that perhaps staff may not agree with. That is their right as a business. As an example, changing the pharmacy preparing medication for Client A was a decision the Respondent was entitled to make. While the Applicant may have disagreed with the decision, there was no indication that the decision was unreasonable, or posed a risk to the client. The Applicant’s involvement in sending the letters to the Respondent undermined the Respondent’s authority and was not appropriate behaviour of an employee. Similarly, the Applicant discussing the request for her to change days with Client A, and reporting what she considered to be poor service to Client A’s brother, went outside the scope of her role as a support worker and further undermined the Respondent.

[54] The Applicant ignored clear, reasonable and lawful directions from the Respondent and failed to improve or address the Respondent’s concerns. The Applicant was given a period of several months to improve and did not do so.

[55] It is also important to recognise the serious potential risk that came with failing to correct the blister packs – had an untrained or new worker been on call Client A could have overdosed quite easily. There is a duty to ensure vulnerable clients are well cared for and it is impossible for the Respondent not to recognise that risk when calculating how they conduct their business.

[56] The cumulative effect of the numerous failures of the Applicant to align with the Respondent’s direction is an effective degradation of the employment relationship. The fidelity of the Applicant to the Respondent was impacted by the independent connection, however well intended, that the Applicant had with Client A. It may not be that the Applicant was therefore acting contrary to the Respondent’s interests, but it is safe to say that the employment relationship was noticeably impacted by this extraneous connection.

[57] I am satisfied that there was a valid reason for the Applicant’s dismissal.

(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

[58] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd 27 sets out that the purpose of a warning about unsatisfactory performance must be to identify the performance that is of concern and must make it clear that a failure to heed the warning places the Applicant’s employment at risk. Such a warning gives an employee an opportunity to improve in those areas identified as requiring improvement. An integral part of such a warning must be to clearly identify the areas of deficiency, the assistance or training that might be provided, the standards required and a reasonable timeframe within which the employee is required to meet such standards.

[59] In order to constitute a warning for the purposes of s.387(b), it is not sufficient for the employer merely to exhort their employee to improve their performance.^{28 The warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”29}

[60] Further, an employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason beforethe decision to terminate is made. 30 This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.31

[61] The Respondent wrote to the Applicant on 14 February 2020 specifically identifying the concerns the Respondent had, and noting the concerns were considered serious breaches of the Applicant’s role and that the meeting on 17 February 2020 would be to discuss the viability of the Applicant’s ongoing employment.

[62] The Applicant attended the meeting and was given an opportunity to respond to the concerns. It appears that the Applicant did not avail herself of that opportunity, and instead focused on raising concerns of her own regarding how Client A was cared for.

[63] I note that the intention of the meeting appears to have been to discuss the concerns, and that the meeting was not a show cause meeting, but based on the Applicant’s responses at the meeting the Respondent determined that continuing the Applicant’s employment was untenable.

[64] I am satisfied that the Applicant was given notice of the reasons for her dismissal, and further, an opportunity to respond to the reasons for her dismissal.

(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

[65] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. There is no positive obligation on an employer to offer an employee the opportunity to have a support person. This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them. 32

[66] The Applicant was given the opportunity to have a support person at each meeting regarding her performance, and at the meeting on 17 February 2020. The Applicant brought a support person to the meeting on 17 February 2020 and was aware that she was able to bring a support person to all meetings.

[67] I am satisfied there was no unreasonable refusal to allow the Applicant to have a support person present.

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

[68] The Applicant was invited to attend multiple meetings and given an opportunity to discuss the Respondent’s concerns at each. The Respondent further put their concerns in writing to the Applicant prior to each meeting.

[69] As noted, the Applicant had multiple opportunities to respond to the performance concerns raised by the Respondent, at multiple meetings.

[70] It is unfortunate that the Applicant appeared to have been confused by the process undertaken by the Respondent in terms of the issues the Respondent sought to raise. However, I consider this was not because of any fault on behalf of the Respondent, but rather because of the Applicant’s clouded view of what the Respondent’s concerns were. At all times, the Respondent’s intention appears to have been to manage the care of Client A, including balancing the Applicant’s strong personal connection with Client A and her duties as a paid support worker.

[71] I am satisfied that the Applicant was warned about her unsatisfactory performance prior to her dismissal.

(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

[72] The Respondent employed approximately 480 staff at the time of the Applicant’s dismissal. The Respondent submitted that it believed the size of the business did not have any impact on the procedures followed in dismissing the Applicant.

[73] I am satisfied there was no impact on the procedures followed in effecting the dismissal as a result of the size of the employer.

(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

[74] The Applicant submitted that the Respondent has a dedicated Human Resources department, and has an inhouse legal counsel. The Respondent did not challenge these submissions or make submissions on this point.

[75] There was no absence of dedicated human resource management specialists and I am not satisfied there was any impact on the procedures followed in effecting the dismissal.

(h) any other matters that the FWC considers relevant

[76] The Applicant appears to have had difficulty in separating her duties as an employee from her obvious care and affection for Client A. In doing so, she ignored clear directions from the Respondent despite numerous discussions regarding this. This is particularly disappointing given that the Respondent appears to have endeavoured to come up with alternative solutions to allow the Applicant to continue to work as a support worker and to advocate for and be involved with Client A’s care.

[77] The Applicant is clearly a compassionate and invested support worker with a long record of service. In an industry that is struggling for experienced, passionate, and dedicated staff, it is particularly disappointing that the Applicant’s personal involvement with Client A led to the termination of her employment.

[78] I observe that the Applicant’s representative raised at hearing that the Applicant was at times confused by the process followed by the Respondent and may not have been afforded natural justice. I do not consider that to be the case. The Applicant attended several meetings to discuss the various performance issues the Respondent had identified. The intention of each of these meetings was to help resolve these concerns and to come up with a way for the Applicant to remain employed and, further, to remain involved in the care of Client A. Having heard from many of the Respondent’s staff, I consider their evidence was sincere and truthful. It is my view that up until the meeting on 17 February 2020, the Respondent’s intention was to find a way forward with the Applicant, but that as a result of this meeting, it became clear continuing with the Applicant’s employment was untenable.

[79] The Applicant’s representative raised during the hearing that English was not the Applicant’s first language. I note that this does not appear to have ever been raised with the Respondent, and there is no indication the Applicant could not speak English fluently.

[80] While I accept the Applicant was confused at points leading up to her dismissal, I consider this is due primarily to her heightened emotions, close personal involvement with Client A, and the passion and dedication with which she approached her work. Performance management is never an easy process, and it can be particularly upsetting when a person being performance managed takes their work as seriously and solemnly as the Applicant.

[81] I further note that the Applicant did not raise at any point that she was confused by the process, or unclear with regards to any of the allegations against her. She did not approach the Respondent to express confusion or concern regarding the process. Regrettably, the Respondent appears to have ‘hunkered down’ and felt that she was being targeted unfairly. It appears that had she approached the Respondent for clarity, or sought advice, the issues the Respondent had raised may have been resolved and things may have proceeded very differently.

CONCLUSION

[82] Having considered all of the evidence and submissions in the context of the statutory considerations I am not satisfied that the Applicant’s dismissal was harsh, unjust or unreasonable. As a result, the dismissal was not unfair within the meaning of the Act.

[83] The application is therefore dismissed.

[84] I Order accordingly.

DEPUTY PRESIDENT

Appearances:

Mr K Wano on behalf of the Applicant, Ms Ghee

Ms C Burke on behalf of the Respondent

Printed by authority of the Commonwealth Government Printer

1 For privacy purposes, the name of the Respondent’s client will be anonymised and will be known as “Client A” throughout this decision.

2 Respondent’s Statement of Evidence, page 2.

3 Transcript, PN1925.

4 Transcript, PN1928.

5 Transcript, PN361.

6 Transcript, PN333-334.

7 Transcript, PN373-383.

8 Transcript at PN1317-1332.

9 Transcript at PN1335-PN1348.

10 Transcript at PN1046-PN1049.

11 Transcript, PN489.

12 Transcript, PN549-561.

13 Transcript at PN1101-1109.

14 Transcript at PN1136-1139.

15 Transcript at PN1166.

16 Transcript at PN1180-1182.

17 Transcript at PN1219-1227.

18 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

19 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601, 621.

20 Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; 218 FLR 268; [2008] NSWSC 159, [342].

21 See Australian Colliery Staff Association v Queensland Mines Rescue Service (1999) 88 IR 78, at [48] where an express stipulation as to location limited the ability of the employer to reasonably direct the employee to another site.

22 Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374, [142], endorsing the decision of the Full Bench in Grant v BHP Coal Pty Ltd[2014] FWCFB 3027, [110].

23 Michael King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta[2014] FWCFB 2194, [26]-[29] (King).

24 Construction, Forestry, Mining and Energy Union v Glencore Mt Owen Pty Ltd[2015] FWC 7752, [8]-[11].

25 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373].

26 Ibid.

27 [2013] FWC 3034, [32].

28 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

29 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

30 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at para. 75, [(2000) 98 IR 137].

31 Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200 (Watson VP, Acton SDP, Williams C, 3 March 2010) at para. 26, [(2010) 194 IR 1]; citing Gibson v Bosmac Pty Ltd [1995] IRCA 222 (5 May 1995), [(1995) 60 IR 1, at p. 7 (Wilcox CJ)].

32 Explanatory Memorandum to Fair Work Bill 2008 at para. 1542.

Annai Ghee v Staffing OptionS for Community Services Pty Ltd

[2020] FWC 6067

5 NOVEMBER 2020

DECISION

RELEVANT LAW